John White, Sr. v. Schrieter Materials, LLC

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 18-046371

**Employee:** John J. White, Sr.

**Employer:** Schrieter Materials, LLC

**Insurer:** Secura Insurance A Mutual Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 3, 2021. The award and decision of Administrative Law Judge Edwin J. Kohner, issued, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **27th** day of September 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

VACANT Member

Attest:

*John J. White*

Secretary

Employee: John White

Injury No.: 18-046371

Dependents: N/A

Before the

Employer: Schreiter Materials LLC

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Secura Insurance A Mutual Company

Hearing Date: September 10, 2021

Checked by: EJK/kmr

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 14, 2018
5. State location where accident occurred or occupational disease was contracted: Lincoln County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was working on a concrete mixer truck and fell to the ground.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Head, Neck, Nose, Left Wrist, and Right Leg
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 4,133.83
16. Value necessary medical aid paid to date by employer/insurer: $\ 74,211.94

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 524.32
3. Weekly compensation rate: $\$ 349.72 / \$ 483.48 / \ 923.01
4. Method wages computation: By agreement

1. Amount of compensation payable:

Permanent total disability benefits from Employer, $\ 923.01 per week, beginning April 10, 2019, for employee's lifetime

Indeterminate

1. Second Injury Fund liability: No

TOTAL:

Indeterminate

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Cynthia M. Hennessey, Attorney at Law

This Workers' Compensation Claim raises several issues arising out of an alleged workrelated injury in which the claimant, was working on a concrete mixer truck and fell to the ground. The issues for determination are: (1) Rate; (2) Permanent disability, and (3) Second Injury Fund liability. The evidence compels an award for the claimant for permanent total disability.

At the hearing, the claimant testified in person and offered depositions of David T. Volarich, D.O., and Benjamin Hughes, and a medical report from Dr. Volarich. The defense offered depositions of the claimant, J. Stephen Dolan, and Bernard Randolph, M.D., and voluminous medical records from Mercy Hospital and Clinics, Troy Henry Caron, D.O., and the claimant's payroll records.

All objections not previously sustained are overruled. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On June 14, 2018, this now, 68-year-old claimant, was working on the back end of a concrete mixer truck and fell to the ground. He was transported to Mercy Hospital, he was evaluated in the emergency room, and underwent detailed clinical assessment, including multiple radiographic images. See Exhibit A. A CT of the brain revealed a small subdural hematoma without mass effect. A CT scan of the cervical spine revealed a fracture of the inferior endplate of C7. The instrumentation from his prior fusion from C5 through C7 was intact. An MRI of the cervical spine revealed no evidence of disc herniation, neural foraminal stenosis, central canal stenosis, or spinal cord injury. X-rays of the left wrist and forearm revealed a comminuted fracture of the distal radius and ulnar styloid fracture. A CT of the thoracic and lumbar spine revealed no acute abnormalities. A CT of the chest, abdomen, and pelvis revealed no acute abnormalities. See Exhibit A.

On June 15, 2018, Dr. Mark Trump, an orthopedic surgeon, performed an open reduction internal fixation of the distal radius fracture to his left wrist. Dr. Troy Caron, an orthopedic spine surgeon, managed conservatively his C 7 endplate fracture and recommended non-operative care. The claimant was discharged from the hospital on June 17, 2018. See Exhibit A.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

On August 3, 2018, the claimant started occupational therapy at Mercy in Troy, Missouri. He was treated conservatively and according to progress notes, made steady progress towards short-term and long-term goals. The claimant followed up with Dr. Bryan Troop, a critical care surgery specialist, at Mercy Hospital. Post-op X-rays revealed adequate healing of the distal radius and ulnar fractures. He was advanced to occupational therapy for rehabilitation. Dr. Caron examined the claimant on several occasions for management of his neck and upper extremity injuries. A follow-up note dated September 11, 2018, indicated the left wrist fracture was progressing well in occupational therapy and X-rays showed adequate healing. The claimant continued to experience some neck discomfort and sensory disturbances in the right upper extremity. Cervical spine films revealed adequate healing of the endplate fracture. Dr. Caron recommended continued outpatient therapy and indicated the weight bearing status in the upper extremity and lower extremities was as tolerated. See Exhibit A.

The claimant was involved in physical therapy as well. Outpatient physical therapy was initiated at Mercy on September 10, 2018. Treatment was focused on cervical soft tissue and manual care to decrease pain, improve range of motion and improve strength in the cervical, proximal shoulder girdle, and upper extremity muscles. Additionally, vestibular treatments were performed to decrease episodes of dizziness and vertigo. The claimant participated in four sessions of therapy through the end of September 2018. According to the last progress note, the claimant reported reduction in vertigo, but continued to have some cervical complaints. Dr. Caron released the claimant to full duty as of September 11, 2018, without any restrictions. Dr. Caron opined the claimant could work, drive, and should follow up as needed. See Exhibit D, page 80.

On February 14, 2019, Dr. Randolph, a specialist in physical medicine and rehabilitation, examined the claimant for ongoing neck complaints. Dr. Randolph provided conservative treatment for the claimant including additional outpatient physical therapy at Lincoln Mercy from February 22, 2019, through March 29, 2019. The claimant told Dr. Randolph his cervical range of motion was improved in all directions. Dr. Randolph understood the claimant's episodes of vertigo or dizziness to be largely resolved. The claimant continued to use a cane at times because of left hip pain which was unrelated to the work-related injury. See Exhibit A. The claimant never returned to work. He last received treatment on April 10, 2019.

Pre-existing Conditions

The claimant suffered prior work-related injuries from a 2006 motor vehicle accident and was awarded permanent partial disability benefits in Injury Number 06-094944: 25% of the cervical spine, 1% of the nose, 2% of an eye, 10% for seizures, 15% of the left shoulder, 3% of the left knee, 2% for an rib injury, 8% of the lumbar spine, and 15% for depression. Administrative notice of Division of Workers' Compensation records.

David T. Volarich, D.O.

On December 5, 2019, Dr. Volarich examined the claimant, took a medical history, and reviewed his medical records. As a result of this occurrence, Dr. Volarich diagnosed closed head trauma with loss of consciousness causing subdural hematoma, concussion with post-concussion

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

syndrome including headaches, dizziness, visual disorders, hearing loss, diminished focus, and concentration, left forehead laceration, bilateral nasal bone fracture, left distal radius comminuted displaced intra-articular fracture with ulnar styloid fracture status post open reduction, internal fixation of the radius fracture, cervical spine C7 inferior endplate fracture, and right calf contusion with persistent pain. Dr. Volarich opined the claimant suffered the following permanent partial disabilities as a result of the occurrence: 30% of the head for the concussion, 5% of the head for the nasal fractures, 50% of the left wrist for the surgical fracture, 20% to the neck for the unoperated neck fracture, and 15% of the right calf. See Exhibit 1. He also opined the combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate Injury/Illness, and a loading factor should be added.

By way of preexisting permanent partial disabilities, he opined the claimant suffered from the following preexisting permanent partial disabilities: 15% from a nasal fracture, 40% for the cervical spine due to disc herniation at C5-6 and aggravation of spinal stenosis at C5-6 and C6-7 that required two level anterior cervical discectomy with fusion, corpectomy, and instrumentation (including posttraumatic headaches), 35% of the left shoulder due to impingement, and rotator cuff tear requiring surgical repair, 7 1/2% of the chest due to rib fractures, and 15% to the low back from degenerative disc disease and degenerative joint disease from L3 to S1, 5% of the neck due to chronic cervical syndrome, 5% of the low back for chronic lumbar syndrome. See Exhibit 3. He did not recommend any specific restrictions relating to post-concussion syndrome or posttraumatic headaches before the 2018 occurrence. See Exhibit 3.

He opined, "Based on my medical assessment alone, it is my opinion that Mr. White is permanently and totally disabled as a direct result of the work-related injury of 6/14/18 in combination with his preexisting medical conditions." See Exhibit 1. He also opined:

For his post-concussion syndrome after 6/14/18, I recommend Mr. White be supervised at all times if he tries to get back to work. His memory difficulties and lack of focus and concentration prevent him from multitasking. His balance disorder and dizziness prevent him from being up on his feet all day long. Cognitive dysfunction and emotional lability also make it difficult for him to function throughout the entire day due to fatigue and lack of motivation. He should also be restricted to working at ground level and never climb ladders because of ongoing dizziness. He should avoid rapid side to side motions of his head to again limit dizziness. I don't believe he can work as a truck driver in the future because rapid side to side motions of his head requiring him to check his mirrors when driving will cause worsening dizziness as well. Finally, I recommend he take a 10 minute break out of each hour to rest and recover from any activities. See Exhibit 1.

Dr. Volarich confirmed at his deposition that these restrictions relate solely to the June 14, 2018 accident. See Dr. Volarich deposition, page 18.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

Bernard C. Randolph, M.D.

On May 7, 2021, Dr. Randolph, a specialist in physical medicine and rehabilitation, who treated the claimant, issued a report opining:

Mr. White is essentially at maximum medical improvement regarding injuries sustained in the work accident of June 14, 2018.

Disability ratings: Based on the diagnoses and the findings on examination, I estimate 8% permanent partial disability of the person as a whole related to the effects of the vertebral endplate fracture and cervical strain occurring on or about June 14, 2018. I estimate 9% permanent partial disability of the person as a whole related to the effects of the closed head injury and small subdural hematoma occurring in the work accident on June 14, 2018. With respect to the left wrist fracture, I estimate 15% permanent partial disability of the left upper extremity at the wrist. This takes into consideration the loss of range of motion and weakness related to the injury. I estimate 1% permanent partial disability of the right lower extremity at the knee related to the effects of the right calf contusion occurring in the work accident. Additionally, I estimate 0.5% permanent partial disability of the person related to the nasal fracture occurring in the work accident of June 14, 2018.

Pre-existing disability: As discussed earlier, Mr. White has significant pre-existing disability related to injuries sustained in the work accident October 10, 2006. Additionally, the record indicates that he has received additional treatment for chronic low back pain after he was released from care regarding the October 10, 2006 work injuries and before the work accident of June 14, 2018. He has also received work-up and treatment related to right rotator cuff dysfunction and knee osteoarthritis.

Physical limitations and ability to work:

Because of the effects of the wrist fracture, Mr. White has some lifting limitations with the left upper extremity. Additionally, he has some mild residual physical limitations related to the left rotator cuff injury occurring in 2006. Right upper extremity mobility and strength are grossly within normal limits. Therefore, taking into consideration the physical condition of both upper extremities, I estimate Mr. White's lifting limit at approximately 25 to 35 pounds occasionally.

Based on the objective information, Mr. White has no limitations related to the effects of the C7 vertebral endplate fracture and cervical strain. Imaging of the cervical spine (MRI and CT scan) did not reveal evidence of significant neural foraminal or central canal stenosis. Furthermore, no objective physical findings of cervical radiculopathy or myelopathy were identified following the neck injury. The vertebral endplate fracture healed without difficulty. The scar tissue injuries in the cervical region were effectively treated with nonoperative care.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

Mr. White describes gait problems, in part, related to complaints of dizziness since the closed-head injury and subdural hematoma. The small subdural hematoma did not result in structural injuries to the areas involved in motor control or balance in the cerebral cortex or cerebellum. Observations on physical examination suggest that musculoskeletal factors involving the hip and back are contributing to symptoms associated with standing and walking. In summary, primarily related to the effects of pre-existing lumbar and hip complaints. Mr. White should avoid continual or frequent standing and walking. However, occasional standing and walking are within his physical ability based on the objective findings.

Alleged problems with memory and other cognitive areas following the closed-head injury of June 14, 2018 are primarily subjective. Permanent, disabling cognitive problems related to the head injury have not been objectively established in the medical record. Mr. White does have pre-existing psychiatric disease including depression and anxiety which are likely contributing to his complaints. Additionally, secondary gain factors may also be contributing to these reports.

In summary, with respect to the head injury sustained in the work accident on June 14, 2018, I do not find objective medical evidence of problems contributing to severe functional disability.

On the whole, taking into consideration the overall medical findings, Mr. White is capable of functioning at a light to medium physical work demand as defined by the Department of Labor. Sedentary work is certainly within his physical abilities based on the objective medical findings. In my opinion, Mr. White is not permanently and totally disabled related to the effects of the work injuries occurring on June 14, 2018.

With respect to future work-up, left upper extremity EMG and nerve conduction studies to assess for posttraumatic carpal tunnel syndrome may be necessary. Otherwise, I would not anticipate other structured work-up or treatment. See Exhibit A.

Benjamin D. Hughes

On May 13, 2020, Mr. Hughes, a vocational rehabilitation counselor, interviewed the claimant and reviewed his medical records. He opined the claimant is unemployable in the open labor market, and he cannot compete in the open labor market based upon a combination of his primary injuries sustained in 2018, along with the pre-existing issues. See Hughes deposition, page 9, lines 5-9. Additionally, Mr. Hughes testified he was aware of the prior settlement the claimant had from the prior compensable work injury of 2006, which the claimant received $132,238.00 in permanency of which 25% was for the neck fusion as well as 15% of the body as a whole for depression, and a combination of 13% of the body as a whole for the head injury. See Hughes deposition, pages 15, 16. He also opined based upon the claimant's prior injury and

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the permanent restrictions the claimant had when combined with the last injury, as a combination of the prior injury and the disabilities and the last injury put him in a position where there were no jobs for which he could compete. See Hughes deposition, page 20, lines 6-19. He opined if the claimant just had the restrictions following the last injury, there would be some jobs available for the claimant. See Hughes deposition, pages 20, 21.

Q. Okay. I'm gonna ask you in particular about the restrictions Dr. Volarich gave for the post-concussion syndrome.

A.Yes, ma'am.

Q.The first restriction Dr. Volarich gives for that is that Mr. White be supervised at all times if he tries to go back to work. That to me sounds like a pretty restrictive restriction; would you agree?

A.Yes.

Q. Are there jobs in the open labor market where you are supervised at all times, or is that more a sheltered workshop situation?

A. That's a good question. I think there would be --it would be quite limited, but you still have some jobs where a person will find himself or herself supervised, but it is quite limited. Let's say customer service representative is one.

Q. Okay. In addition for the post-concussion syndrome, Dr. Volarich notes that he has memory difficulties, lack of focus and concentration that prevent him from multitasking. He says he has balance disorder and dizziness that prevent him from being on his feet all day. Cognitive dysfunction and emotional ability (sic) make it difficult for him to function throughout the entire day due to fatigue and lack of motivation. He should be restricted to working at ground level, never climb ladders because of ongoing dizziness, avoid rapid side-to-side motions of his head to again limit dizziness and not work as a truck driver in the future. Those restrictions from the post-concussion syndrome, would you agree that those restrictions alone are sufficient to preclude all employment?

A. It's gonna be quite limiting, yes.

Q. I mean, can you identify any job that he could do that met those restrictions from Dr. Volarich for the post-concussion syndrome?

A. I think it would be hard to find a job based just on those specific restrictions. It would be difficult, ma'am.

Q. What kind of job would you think he might be able to do with just those restrictions?

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

A. Just from the ones we've covered?

Q. Just the post-concussion syndrome restrictions.

A. I think if you look at just those restrictions alone, very likely the gentleman probably will not be able to find work. See Hughes deposition, pages 29-32.

On September 25, 2020, Mr. Dolan, a vocational rehabilitation counselor, interviewed the claimant and reviewed his medical records. He opined:

Mr. White suffered very serious injuries in 2006 that caused him to be off work for two years. The most important resulting limitations, vocationally, were loss of cervical range of motion, loss of ability to sit for prolonged periods of time, and loss of left upper extremity range of motion and strength. Those acquired limitations prevented him from continuing to work as an over-the-road tractortrailer driver and eroded his occupational base.

Dr. Volarich's 2019 restrictions would allow Mr. White to work in a job where he did not have to lift more than 15 pounds, no more than 5 pounds with his left upper extremity alone either out from his body or overhead, and changed position from sitting to standing at least every 20 to 30 minutes, as long as he did not have to rest in a recumbent position while at work. Examples of such jobs include: cashiers in parking garages, parking lots, cafeterias, etc. Pizza delivery drivers. Night watchmen. Telemarketers. Residential and commercial alarm monitors. Uber and Lyft drivers.

I asked Mr. White if he could do such a job. I used parking garage cashier as an example. He said he could but would not because he would be bored. I believe Mr. White could work if he wished to, in the types of jobs mentioned above. See Exhibit B.

In his deposition, Mr. Dolan testified another of Dr. Volarich's restrictions, the claimant be "supervised at all times," precludes competitive employment based on that restriction alone. "What that restriction means is the person cannot be competitively employed, that they would have to be in either a sheltered work program or a supported employment program." See Dolan deposition, page 50. Mr. Dolan also testified that a 10 -minute rest break each hour was incompatible with employment. "Dr. Volarich also testified that he would need to take a tenminute break every hour to rest and recover, and that would eliminate any employment if that was true." See Dolan deposition, page 36.

Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

Section 287.190.6(2), RSMo 2016.

"Total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Section 287.020.7, RSMo 2000. The test for permanent total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. *Sutton v. Masters Jackson Paving Co.*, 35 S.W.3d 879, 884 Mo.App. 2001. The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired. *Id.*

Workers' compensation awards for permanent partial disability are authorized pursuant to Section 287.190. "The reason for [an] award of permanent partial disability benefits is to compensate an injured party for lost earnings." *Rana v. Landstar TLC*, 46 S.W.3d 614, 626 (Mo. App. W.D. 2001). The amount of compensation to be awarded for a PPD is determined pursuant to the "SCHEDULE OF LOSSES" found in Section 287.190.1. "Permanent partial disability" is defined in Section 287.190.6 as being permanent in nature and partial in degree. Further, "[a]n actual loss of earnings is not an essential element of a claim for permanent partial disability." *Id.* A permanent partial disability can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. *Id.* "[T]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." *Id.* "It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered." *Id.* In a workers' compensation case in which an employee is seeking benefits for PPD, the employee has the burden of not only proving a work-related injury, but that the injury resulted in the disability claimed. *Id.*

In a workers' compensation case, in which the employee is seeking benefits for PPD, the employee has the burden of proving, inter alia, that his or her work-related injury caused the disability claimed. *Rana*, 46 S.W.3d at 629. As to the employee's burden of proof with respect to the cause of the disability in a case where there is evidence of a pre-existing condition, the employee can show entitlement to PPD benefits, without any reduction for the pre-existing condition, by showing that it was non-disabling and that the "injury cause[d] the condition to escalate to the level of [a] disability." *Id.* See also, *Lawton v. Trans World Airlines, Inc.*, 885 S.W.2d 768, 771 (Mo. App. 1994) (holding that there is no apportionment for a pre-existing non-disabling arthritic condition aggravated by a work-related injury); *Indelicato v. Mo. Baptist Hosp.*, 690 S.W.2d 183, 186-87 (Mo. App. 1985) (holding that there was no apportionment for a pre-existing degenerative back condition, which was asymptomatic prior to the work-related accident and may never have been symptomatic except for the accident). To satisfy this burden, the employee must present substantial evidence from which the Commission can "determine that the claimant's preexisting condition did not constitute an impediment to the performance of claimant's duties." *Rana*, 46 S.W.3d at 629. Thus, the law is that a reduction in a PPD rating cannot be based on a finding of a pre-existing non-disabling condition, but requires a finding of a pre-existing non-disabling condition.

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pre-existing disabling condition. Id. at 629,630 . The issue is the extent of the disability that was caused by such injuries. Id. at 630 .

In this case, the first determination to be made is the degree of disability from the last injury alone.

The evidence is persuasive, the 2018 work injury considered alone is sufficient to render the claimant unemployable in the open labor market. The claimant fell from a height striking his head and breaking his arm while working for this employer. Due to this accident, he suffered closed head trauma with subdural hematoma, nasal fractures, comminuted left wrist fractures, a cervical fracture and severe contusion to his right calf. Due to these injuries, the claimant has significant, ongoing, and disabling symptoms that prevent him from returning to any work.

Dr. Volarich opined the claimant had significant restrictions for the post-concussion syndrome:

For his post-concussion syndrome after 6/14/18, I recommend Mr. White be supervised at all times if he tries to get back to work. His memory difficulties and lack of focus and concentration prevent him from multitasking. His balance disorder and dizziness prevent him from being up on his feet all day long. Cognitive dysfunction and emotional lability also make it difficult for him to function throughout the entire day due to fatigue and lack of motivation. He should also be restricted to working at ground level and never climb ladders because of ongoing dizziness. He should avoid rapid side to side motions of his head to again limit dizziness. I don't believe he can work as a truck driver in the future because rapid side to side motions of his head requiring him to check his mirrors when driving will cause worsening dizziness as well. Finally, I recommend he take a 10 minute break out of each hour to rest and recover from any activities. See Exhibit 1.

Dr. Volarich confirmed at his deposition that these restrictions relate solely to the 6/14/18 accident. See Dr. Volarich deposition, page 18.

Neither vocational expert could identify a job that would allow the claimant to work with these restrictions. Mr. Hughes testified the restrictions would be "quite limiting." See Hughes deposition, page 31. He testified, "I think if you look at just those restrictions alone, very likely the gentleman probably will not be able to find work." See Hughes deposition, pages 31, 32. Mr. Dolan testified the restriction "supervised at all times" alone precludes competitive employment. "What that restriction means is the person cannot be competitively employed, that they would have to be in either a sheltered work program or a supported employment program." See Dolan deposition, page 50. Mr. Dolan also testified a 10 -minute rest break each hour was incompatible with employment. "Dr. Volarich also said that he would need to take a ten-minute break every hour to rest and recover, and that would eliminate any employment if that was true." See Dolan deposition, page 36 .

The claimant's testimony supports the restrictions provided by Dr. Volarich for the head injury. The claimant testified that since the head injury in this occurrence, he suffers from

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

balance and vertigo problems. He has difficulty with short-term memory, focus and concentration. He feels stupid because he forgets things. He has dizziness and nearly passes out 3 or 4 times per week. He has to lie down on a flat, hard surface when he has vertigo to alleviate the symptoms. He has to record television programs so he can rewind because he can't follow the plot lines.

Assuming the credibility of Dr. Volarich's findings and the claimant's testimony, the claimant's head injury and its sequelae are sufficient to render the claimant totally disabled. However, the claimant also suffers disabling symptoms in his neck, hands and arms from the work injury. By the claimant's testimony, these symptoms include arm jerking, nerve damage from the neck fracture that causes burning pain down his arms, right leg numbness, loss of grip strength, and inability to fully close his left hand. The claimant testified these symptoms, which were never present before the injury from this occurrence, are so severe he cannot even carry his grandbabies for fear of dropping them.

The defense did not directly impeach Dr. Volarich's findings regarding the claimant's closed head injury. The employer provided treatment for the claimant's injuries from qualified medical providers in orthopedics and physical medicine. Dr. Randolph, a specialist in physical medicine and rehabilitation, opined:

> Alleged problems with memory and other cognitive areas following the closed head injury of June 14, 2018 are primarily subjective. Permanent, disabling cognitive problems related to the head injury have not been objectively established in the medical record. Mr. White does have pre-existing psychiatric disease including depression and anxiety which are likely contributing to his complaints. Additionally, secondary gain factors may also be contributing to these reports.

Also, Dr. Randolph examined the claimant in February 2021, understood the claimant's episodes of vertigo and dizziness were largely resolved, but Dr. Volarich's examination in December 2019, found the claimant had significant residual complaints relating to vertigo and dizziness. The claimant testified at the hearing he had significant residual complaints relating to vertigo and dizziness.

Given the two contrasting perspectives, Dr. Volarich's conclusions seem to be more consistent with the other evidence, and Dr. Volarich had the benefit of examining the claimant before the 2018 occurrence. It would have been interesting had the claimant been evaluated and treated by a neurologist or neuropsychologist, but neither party sought to go in that direction. The decision can only be based on the evidence in the record.

While the claimant certainly had many preexisting disabling conditions, the claimant's disabilities from the work injury from this occurrence are sufficient to render him permanently and totally disabled. Based on the weight of the evidence, the claimant is awarded permanent total disability benefits from the employer and insurer at the rate stipulated between the attorneys for the claimant and the employer and insurer at the hearing. Because the employer's liability is for permanent and total disability, the Claim against the Second Injury Fund is denied.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

The finding above results in a conclusion that the Second Injury Fund has no liability in this case, because the claimant's disabilities from the work injury from this occurrence are sufficient to render him permanently and totally disabled. The Second Injury Fund contested the rate for permanent total disability contending that the rate should be 332.76, based on an average weekly wage of 499.14. However, the employer and insurer stipulated to $923.01 as the rate for permanent total disability in this case. Stipulations are binding in administrative proceedings.

I certify that on Nov 03 2021 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file. By: _Elisabeth Glasson_

Made by: _Edwin Kohner_

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation

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