William Parker v. Pepsi Beverage Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ).

The parties asked the ALJ to resolve the sole issue of Second Injury Fund (Fund) liability. Mr. Parker had previously settled his claim against the employer/insurer for 46\% permanent partial disability (PPD) of the body as a whole for the cervical spine.

The ALJ determined the Fund is liable for lifetime permanent total disability (PTD) benefits under § 287.220.3 RSMo.

The Fund filed an appeal to the Commission alleging the ALJ erred:

- In applying § 287.220.3(2)(a)a and concluding that Claimant's preexisting heart condition satisfied category three because it does not "directly and significantly aggravate or accelerate" the primary spinal injuries.

- In applying § 287.220.3(2)(a)a and concluding that Claimant's right hip and low back injuries qualify under category two because they were not compensable injuries under $\S 287.020$.

- In awarding PTD benefits under § 287.220.3(2)(a)b because Claimant did not submit evidence that he is PTD from a combination of his primary injury and qualifying preexisting disabilities.

- When she found Claimant to be permanently and totally disabled because he continued to work for years after the primary injury.

We consider the last point in the Fund's appeal to be dispositive and resolve the appeal based on that issue. Assuming, arguendo, that Mr. Parker is permanently and totally disabled, we find the third point in the Fund's appeal to also be dispositive. Without reaching the other issues appealed, we reverse the award and decision of the ALJ.

On October 2, 2014, Mr. Parker sustained a compensable, work-related injury to his neck from a motor vehicle accident, which was the primary injury involved in this claim. As a result of the injury, Mr. Parker underwent cervical injections and surgeries. Dr. Kevin D. Rutz performed surgery on July 10, 2015, including C4-5, C5-6, and C6-7 anterior cervical discectomy and fusion with placement of structural allografts and anterior instrumentation C4-7. On December 11, 2015, Dr. Rutz performed surgery including a right C6-7 posterior foraminotomy and C6-7

posterior spinal fusion with anterior instrumentation. On May 13, 2016, Dr. Rutz performed surgery removing the posterior C6-7 cervical instrumentation. Dr. Rutz released Mr. Parker at maximum medical improvement (MMI) without restrictions on September 27, 2016. After additional imaging and evaluation, Dr. Rutz confirmed MMI on March 14, 2017. The parties stipulated to March 14, 2017 as the applicable MMI date for this claim. Mr. Parker continued to work at Pepsi as a transport driver after being released by Dr. Rutz.

Mr. Parker was still working at Pepsi when Dr. David T. Volarich examined him for an independent medical examination (IME) on January 30, 2018. Dr. Volarich provided a rating of 60 % permanent partial disability of the body at the cervical spine due to the primary injury. Dr. Volarich also provided ratings for preexisting disabilities of 50 % of the right hip, 25 % of the body at the lumbar spine, and 15 % of the right hand. Dr. Volarich's report opined Mr. Parker's primary injury and preexisting disabilities had a synergistic effect combining to create a greater disability than the simple sum of each. Dr. Volarich opined Mr. Parker could work full duty to tolerance with normal work precautions.

Mr. Parker testified he continued working at Pepsi until approximately July 5, 2018. On an unspecified date prior to his work separation, Mr. Parker picked up and threw an empty pallet at work and felt pain down his arms. He testified he did not feel safe driving an 18-wheel truck due to his arm pain, and so he retired. Mr. Parker then began driving a school bus in September 2018. Part of his pre-employment testing required him to drag a 75 -pound bag for 20 feet. Mr. Parker described pain in his back and right leg during the test, but he was able to qualify as a school bus driver. He drove five days per week, two hours in the morning and two hours in the afternoon. He drove the bus during the school year and collected unemployment during the summer.

Dr. Volarich examined Mr. Parker again on December 5, 2018. The IME report indicates Mr. Parker reported he had retired from Pepsi. The report does not mention Mr. Parker's work as a school bus driver. Dr. Volarich did not provide any changes to his opinions regarding the primary injury or the preexisting disabilities described in his previous report. However, Dr. Volarich reviewed records and provided an opinion regarding Mr. Parker's heart which was not addressed in the previous report. Dr. Volarich provided an additional preexisting disability rating of 25 % of the body due to Mr. Parker's dilated cardiomyopathy. Dr. Volarich opined there was a synergistic effect between Mr. Parker's cardiac issues and the orthopedic and neuropathic problems described in his previous report. Dr. Volarich's report listed recommended work restrictions regarding the spine, lower extremities, and heart that were not provided in his previous report. Dr. Volarich opined Mr. Parker was permanently and totally disabled as a result of the October 2, 2014 primary injury in combination with his preexisting medical conditions.

Stephen Dolan evaluated Mr. Parker on March 12, 2019 for a vocational assessment. Mr. Dolan administered the Wide Range Achievement Test and found Mr. Parker scored at the 11th-grade level in word recognition, above high school level in sentence comprehension, and above high school level in math. Mr. Dolan testified these results indicate Mr. Parker would be very trainable, but added a qualifier stating, "if he were a younger individual." Mr. Dolan noted Mr. Parker was continuing to work as a school bus driver five hours per day during the school year. Mr. Dolan opined that restrictions from Dr. Volarich and Dr. Rutz would eliminate work previously performed by Mr. Parker. Mr. Dolan opined, "It is unlikely that any employer would see Mr. Parker as capable of successfully fulfilling the requirements of a full-time job. It is unlikely that Mr. Parker would be able to work full time, without taking excessive rest breaks, because of his cardiac condition." Mr. Dolan testified he did not believe Mr. Parker was employable in the open labor market on a full-time basis.

Mr. Parker continued working as a school bus driver until March 2020 when schools closed due to the COVID-19 pandemic. Mr. Parker testified he noticed his arms did not hurt all of the time when he stopped driving the school bus. He decided not to return to bus driving when schools reopened in the fall because not driving helped his pain.

Dr. Volarich examined Mr. Parker again on October 15, 2020. Dr. Volarich's report indicated he reviewed more than 100 pages of additional records, but they did not change the opinions he had previously expressed. Dr. Volarich again opined Mr. Parker was permanently and totally disabled as a result of the October 2, 2014 primary injury in combination with his preexisting medical conditions.

The Fund appeals the award of permanent total disability benefits in connection with the October 2, 2014 primary injury claim.

The legislature amended $\S 287.220$ in 2013 to limit the number of workers eligible for Fund benefits. Treasurer of State v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021). Because Mr. Parker's primary injury occurred after January 1, 2014, the criteria set forth under § 287.220.3(2) RSMo apply to establish a compensable claim against the Fund. See Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019).

In relevant part, the statute provides as follows:

Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter.

§ 287.220.3(2) RSMo.

In Klecka, the Court stated:

Under [§] 287.220[3], employees must meet two conditions to make a compensable PTD claim against the Fund. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal at least 50 weeks of PPD, and meet one of four listed criteria in section 287.220.3(2)(a)a(i)-(iv)... Second, the employee must show he 'thereafter sustains a subsequent compensable work-related injury [often referred to as the primary injury] that, when combined with the preexisting disability[,]... results in a permanent total disability as defined under this chapter.' [§ 287.220.3(2)(a)b]. As this Court recently explained in Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021):

'[A]n employee satisfies the second condition by showing the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition.'

Klecka v. Treasurer of Mo., 644 S.W.3d 562, 566 (Mo. banc 2022).

"The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." § 287.020.6 RSMo. "The test for permanent total disability is the worker's ability to compete in the open labor market because it measures the worker's potential for returning to employment." Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. banc 2015). "The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition." Id. at 665.

The Commission must decide whether any further medical progress can be reached because that decision is essential in determining when a disability becomes permanent for the purpose of awarding PPD or PTD benefits. Id. at 668.

The parties stipulated Mr. Parker reached MMI on March 14, 2017. We find Mr. Parker was not PTD at that time. We find Mr. Parker continued to work as a transport driver for Pepsi following his MMI release until approximately June 14, 2018. We find he worked these 15 months at full duty without restrictions. We do not find the restrictions suggested by Dr. Volarich to be credible, as he did not provide any restrictions until after his second evaluation when Mr. Parker had retired from Pepsi. We find Mr. Parker then obtained a new job driving a school bus from September 2018 until March 2020 when the schools closed due to the COVID-19 pandemic. We find Mr. Parker met the physical qualifications for the job and successfully performed the job throughout the school year, and collected unemployment benefits during the summers, during these 18 months. We find Mr. Parker was performing his job as a school bus driver at full duty without restrictions. Although Mr. Parker was driving the bus for four to five hours per day, we find no evidence in the record that school bus drivers were required or requested to drive more hours or more frequently than performed by Mr. Parker. We find Mr. Parker was able to successfully compete and perform in the open labor market for three years following his MMI release following the primary injury. Accordingly, we find Mr. Parker was not permanently and totally disabled.

Assuming, arguendo, that Mr. Parker is permanently and totally disabled, we find there is no evidence in the record that persuasively demonstrates Mr. Parker is unable to compete in the open labor market due to the October 2, 2014 work injury in combination with his preexisting disabilities that qualify under § 287.220.3(2) RSMo. We find Mr. Parker's preexisting right little finger disability is below 50 weeks. Mr. Parker previously settled a claim with the Fund listing 10 % disability of the right hand, which would equal 17.5 weeks. Mr. Parker's own evidence

Employee: William Parker

- 5 -

from Dr. Volarich provided a rating of 15% of the right hand, which would equal 26.25 weeks. We find Dr. Volarich opined Mr. Parker is permanently and totally disabled as a result of the primary injury and his preexisting conditions, which would include the right hand. Because the right hand is below the statutory threshold, it cannot be considered in the Commission's PTD determination. Mr. Parker did not meet his burden of proof and persuasion, as he did not produce evidence suggesting he was PTD as a result of the combination of the primary injury and his qualifying preexisting disabilities. Accordingly, under the Supreme Court of Missouri's interpretation of the law applicable to post-2014 Fund claims in *Parker* and *Klecka*, *supra*, Mr. Parker has failed to satisfy the requirements of § 287.220.3 RSMo.

**Decision**

We reverse the award of the administrative law judge.

Mr. Parker's claim against the Second Injury Fund is denied because his evidence fails to prove he is totally disabled as defined by § 287.020.6 RSMo. Mr. Parker's evidence also fails to satisfy the standard set forth under § 287.220.3 RSMo.

The award and decision of Administrative Law Judge Suzette Carlisle Flowers, issued April 19, 2022, is attached solely for reference.

Given at Jefferson City, State of Missouri, this **28th** day of December 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

DISSENTING OPINION FILED

Shalonn K. Curtis, Member

Kathryn S. Olin, Member

Attest:

*Klecka*

Secretary

I would affirm the ALJ's award allowing benefits for permanent total disability against the Second Injury Fund (Fund) under §287.020.3(2) RSMo.

The majority denies Fund liability based on a finding that the employee is not permanently and totally disabled (PTD). The Fund's five-page application for review of the ALJ's award raised this issue only in passing. At the hearing, the parties stipulated that the sole issue for disposition was "the liability of the Second Injury Fund for permanent total disability benefits, if any." ${ }^{1}$ The ALJ noted that, after the hearing, the Fund argued that PTD was due to the employee's last injury alone. ${ }^{2}$ In the context of the Fund's ambiguous positions, the employee's claim should not be denied based on the issue of PTD.

As discussed in her award, the ALJ found that Mr. Parker was PTD due to the combination of disabilities that qualify under $\S 287.020 .3(2)$ RSMo based on the employee's credible testimony, in addition to the persuasive and credible testimony by Dr. David Volarich and vocational expert Mr. Stephen Dolan.

At the time of the employee's primary work injury, he had worked as a commercial truck driver for the employer, Pepsi Beverage Company (Pepsi), for forty years. Mr. Parker typically worked between ten and twelve hours a day, an average of five days a week, loading and unloading cases of soda weighing from twenty to seventy-five pounds. He suffered from a serious heart condition and had significant disabilities due to prior injuries to his right hip and low back. The primary injury occurred on October 2, 2014, when the employee's truck was hit by another vehicle, lost one of its wheels, and ran into a concrete barrier at approximately forty miles per hour. The employee's attempt to remain in the workforce as a driver in some capacity after this very serious injury, in combination with his significant prior disabilities, was admirable but unrealistic in light of his well-documented physical limitations.

After surgery related to the primary injury, the employee remained bedridden for approximately five months, at which time he had a second surgery. When the employee's surgeon, Dr. Kevin Rutz, released him to return to work full duty on March 14, 2017, he noted that the employee "is choosing to work without restrictions (emphasis added)."3 The employee understood that the consequence of a weight restriction would have been that "I wouldn't have been able to do my job." ${ }^{4}$ When he returned to work for Pepsi, his neck was in constant pain and his arms would go numb to his fingers. Yet, the employee credibly testified, "I tried to do the best I could do."5 When he got home, the employee found himself abusing alcohol to try to deal with the pain. Motivated by a fear of not being able to support his family, including a son in college, he still tried to hold onto his job. Mr. Parker lost his struggle to maintain his employment at Pepsi when he experienced extreme pain in his arms after throwing an empty pallet on a pile of other pallets. After reporting his injury and consulting with his attorney, Mr. Parker concluded it was time to leave his work at Pepsi Beverage Company in July 2018. His work separation from Pepsi is not fairly characterized as a voluntary retirement.

Even after leaving his job with Pepsi, because of his strong work ethic and desire to avoid just "sitting at home," ${ }^{6}$ Mr. Parker sought part-time work driving a school bus. The school required

[^0]

[^0]: ${ }^{1} Transcript, p. 2.

{ }^{2} See Award, p. 25.

{ }^{3} Transcript, p. 1806.

{ }^{4} Id., p. 24.

{ }^{5} Id., p. 25.

{ }^{6}$ Transcript, p. 43.

a pre-employment test that involved dragging seventy-five pounds, necessary to ensure that a driver could pull a child out of the bus in the event of an accident. Mr. Parker credibly testified he "couldn't hardly" ${ }^{7}$ complete this task because he had so little strength in his right leg. For the majority of his tenure, the employee drove only a "short" school bus. His school bus driving involved a two-hour morning shift and, later, a two-hour shift in the afternoon. This schedule allowed the employee the opportunity to rest in between shifts. He further only worked during the school year. While laid off as a result of the pandemic, the employee noticed that the pain he felt in his arms while driving the school bus went away. When school resumed in the fall he decided not to return because "I was tired [and not working] helped with my pain." ${ }^{8}$

The employee's last attempt to retain gainful employment involved an application for a job at a truck center. This position only involved moving trucks from one location of the center to another. Though the employer hired him, Mr. Parker was then rejected because he failed the employer's physical. He believed his inability to pass the physical exam was due to difficulty in lifting twenty-five pounds and a problematic heart rate.

The employee's behavior is admirable and is the type of behavior the Commission should support. Mr. Parker should not be punished for doing his best to stay in the labor market, rather than just stop working after his primary injury in the interest of supporting a claim of PTD.

There was only one vocational expert to testify in this case, Mr. Dolan, a board-certified rehabilitation counselor. He testified that the employee is not employable in the open labor market on a full-time basis because he has to rest throughout the day. He stated that the parttime small school bus job that the employee attempted was the only potential job the employee might perform because it allowed him to go home and recover in between his shifts. Mr. Dolan opined that if the employee ever got to the point where he could no longer handle this part-time job, there would be nothing else for him to do, as he has no transferable skills. Other than a high school diploma, the employee's only credential is a commercial driver's license.

Based on the foregoing, the ALJ correctly found Mr. Parker to be incapable of gainful employment in the open labor market.

Second Injury Fund liability under § 287.220.3 RSMo

"In 2013, the legislature amended section 287.220 to limit the number of workers eligible for fund benefits because the fund was insolvent." Cosby v. Treasurer of State, 579 S.W.3d 202, 205 (Mo. banc 2019). It is reasonable to infer that the legislature's statutory changes were designed to ensure that the most severely injured workers be given priority in determining eligibility for an award against the Fund.

The ALJ correctly held the Fund liable for the employee's PTD based on a finding that his PTD resulted from disability attributable to qualifying preexisting disabilities in combination with his subsequent compensable work-related injury, as required by § 287.220.3.2 RSMo. The employee's preexisting conditions related to his heart, right lower extremity, and lumbar spine each meet the fifty-week threshold set out in the statute and resulted in the employee's PTD in combination with disability attributable to the primary injury.

No provision of § 287.220.3.2 RSMo requires the ALJ or the Commission to confine its consideration of medical causation of an employee's PTD to the specific words used by a medical or vocational expert without regard for the context of their opinions. Dr. Volarich assessed no restrictions relating to the employee's right hand before October 2, 2014, the date

[^0]

[^0]: ${ }^{7} Id., p. 46.

{ }^{8}$ Id., p. 45.

of the primary injury. It is therefore unreasonable to construe Dr. Volarich's PTD opinion as including disability related to the employee's non-qualifying right-hand injury.

Denial of compensation to Mr. Parker, now unable to compete for work in the open labor market as a result of multiple serious injuries sustained over decades of employment in hard physical labor, in combination with a serious non-work-related preexisting heart condition, is shortsighted because it forces him and others similarly situated to seek assistance from the state's welfare system. This inappropriately shifts the burden of fully compensating employees for lost wages related to a work injury from employers, who fund the SIF through a surcharge, to society at large.

For all of the above reasons, I respectfully dissent from the majority's denial of compensation in this case.

Shalonn K. Curls, Member

Employee: William Parker

Injury No.: 14-075435

Dependents: N/A

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Employer: Pepsi Beverage Company (Settled)

Hearing Date: February 7, 2022

Checked by: SCF:LN

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: October 2, 2014
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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: Claimant injured his cervical spine when he was involved in a motor vehicle accident while delivering product to customers.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Cervical spine
14. Nature and extent of any permanent disability: 46 percent permanent partial disability of the cervical spine (Settled)
15. Compensation paid to-date for temporary disability: $33,369.28
16. Value necessary medical aid paid to date by employer/insurer? $212,368.03

WC-32-R1 (6-81)

Page 1

**Injury Number:** 14-075435

**Employee:** William Parker

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: 1,042.98
3. Weekly compensation rate: 451.02/$695.32
4. Method wages computation: Stipulated by the parties

1. **Amount of compensation payable:**

184 weeks of permanent partial disability from Employer (Settled prior to hearing) $82,987.68

1. **Second Injury Fund liability:** Yes

Permanent total disability benefits from Second Injury Fund:

1. No Fund payment for the first 136 weeks of Employer liability.
2. Thereafter, a weekly differential payment of 244.30 per week for 48 weeks.
3. Then, 695.32 per week for the remainder of Claimant's lifetime

**TOTAL:** **TO BE DETERMINED**

1. **Future requirements awarded:** N/A

Said payments to begin 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: Attorney Dean Christianson.

¹ To be determined WC-32-R1 (6-81) Page 2

Employee: William Parker

Injury No.: 14-075435

Dependents: N/A

Employer: Pepsi Beverage Company (Settled)

Party:

Insurer: Indemnity Insurance

Company of No. America, c/o Sedgwick Claims Management Services (Settled)

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On February 7, 2022, Mr. William Parker, ("Claimant") appeared in person and by counsel, at the Missouri Division of Workers' Compensation ("DWC"), St. Louis Office for a hearing for a final award to be issued by the undersigned Administrative Law Judge, Suzette Carlisle Flowers. Claimant seeks permanent total disability ("PTD") benefits from the Second Injury Fund ("Fund").

The injury occurred in St. Louis City where venue is proper. Jurisdiction properly lies with the DWC.

Attorney Dean Christianson represented Claimant. Assistant Attorney General David Drescher represented the Fund. Court Reporter Lori Notze transcribed the proceeding. The record closed after presentation of all the evidence on February 7, 2022. The parties submitted memorandums of law to the Court on March 8, 2022.

Prior to the start of the hearing, Claimant settled the case with the Employer and Insurer for 46 percent permanent partial disability ("PPD") of the body as a whole for the cervical spine, and they did not participate in the hearing. The case proceeded to mediation with the Fund but did not resolve.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

At the start of the hearing, Claimant voluntarily dismissed two claims; injury number 15-017158 and 18-043063.

Prior to the start of the hearing, the parties stipulated to the following:

On October 2, 2014,

1. Claimant was employed by Employer and sustained an accidental injury;[^2]
2. The injury arose out of and in the course of his employment in St. Louis City;
3. Claimant and Employer operated under the Missouri Workers' Compensation Law[^3];
4. Employer's liability was fully insured by Indemnity Insurance Company;
5. Employer received proper notice of the injury;
6. A Claim for Compensation was timely filed;
7. Claimant's average weekly wage was 1,042.98, which resulted in a compensation rate of 695.32 for temporary total disability ("TTD") and PTD benefits and 451.02 for PPD benefits;
8. Employer paid TTD benefits totaling 33,369.28 (50 weeks);
9. Employer paid medical bills totaling $212,368.03; and
10. Claimant reached maximum medical improvement ("MMI") on March 14, 2017.

Prior to the hearing, Claimant offered Exhibits 1-30 electronically through Box.com. After the start of the hearing, Claimant offered Exhibit 31 electronically to Court Reporter Notzke. Claimant's exhibits were admitted into evidence without objection from the Fund. The Fund offered Exhibit Roman Numeral I to Box.com, but withdrew it after Claimant testified.

Any marks or highlights contained in the exhibits were made before they became a part of the record and were not placed there by the undersigned Administrative Law Judge. Any objections contained in the depositions or made during the hearing, but not ruled on during the hearing or in this award, are now overruled.

[^2]: All references in this award to the Employer also refer to the insurer, unless otherwise stated

[^3]: All references in this award are to the Mo. Rev. Stat. §287(2014), unless otherwise stated.

WC-32-R1 (6-81)

Page 4

EXHIBITS:

Excell/Esse Health |

Issued by DIVISION OF WORKERS' COMPENSATION

Exhibits

Cont. | Description |

Based on a preponderance of the evidence, Claimant proved the following facts:

At the hearing, Claimant testified he was 65 years old, married and has four adult children. He stands six feet, one inch tall and weighs 300 pounds. Since 2014, Claimant gained 50 pounds due to inactivity. He graduated from Altoff High School where he averaged B and C grades. For several years, Claimant attended Southwestern Illinois Community College but did not graduate. Claimant holds Class A and Class D licenses as a professional driver. He does not know how to use email or shop online.

Claimant worked for the Employer his entire 41-year career and was an active member of the Teamsters union during his employment. Claimant worked for Employer from 1977 to 2018. During Claimant's career, he held three jobs; 1. Route salesman, 2. Customer representative, and 3. Transport driver. Claimant spent about 36 years unloading cases of soda. Later, he used an electric pallet to move cases.

As a route salesman in the 1980's, Claimant loaded trucks, delivered products to customers, and stocked freezers. At the start of his career, Claimant worked 10-12 hours per day.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

As a customer representative, he loaded trucks, delivered products to stores, and stocked them in freezers. Claimant lifted 100,000 cases of soda per year that weighed up to 75 pounds per case. In the middle of Claimant's career, he worked seven days a week.

His last job, transport driver, required him to drive a 48-foot tractor trailer and deliver products to stores, remove product with a pallet jack, and deliver them to the dock for unloading by someone else. At the end of Claimant's career, he worked eleven hours a day, four days per week.

**Claimant's Injuries before October 2, 2014**

1981 - Heart - Claimant developed cardiomyopathy and treated with high dose steroids. Dr. Krom performed two cardiac catheters and a cardiac conversion, from afib to sinus rhythm. Leading up to October 2014, Claimant's heart problems slowed him down and he had heart palpitations. During the hearing, Claimant listed a number of medications he takes related to his heart condition.

1986 - Right hip - Claimant's received his first right partial hip replacement for avascular necrosis caused by steroids taken to treat cardiomyopathy. (Exhibit 21, page 3).4

2002 Right hip - On November 18, 2002, Claimant slipped and fell on oil in a parking lot while at work and required a right hip revision on March 26, 2003 by Dr. Rende. (Exhibit 20, pages 10-11). He returned to work with the following permanent work restrictions: no kneeling, running or jumping, occasional squatting, no repetitive lifting over 65 pounds. (Exhibit 20, page 19). The case settled for 47 percent PPD of the right hip in Illinois on December 7, 2005. Leading up to October 2014, the hip was sore with activity, and better with rest. His movements were slow and cautious. He stopped coaching little league baseball and he walked slower. Before October, 2014, Claimant stopped bowling because he walked in a crooked line.

2004 Back - On February 2, 2004, Claimant slipped and fell on ice and injured his back while delivering merchandise to a grocery store in Illinois. David Robson, M.D., diagnosed a herniated disc, L4-5, right with L5 radiculopathy and weakness on the right ankle and great toe. Initially, Claimant treated at Concentra. On March 9, 2004, Dr. Robson performed a right lumbar microdiscectomy at L4-5. (Exhibit 16, pages 12-13). He returned Claimant to work June 7, 2004, with a helper and 40-pound weight limit for two weeks, gradually increasing to regular duty, and a 60-pound weight limit. Dr. Robson

4 A right bipolar hemiarthroplasty was performed.

WC-32-81 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

released Claimant without restrictions on June 30, 2004. (Exhibit 17, pages 22-24). The case settled for 21 percent PPD of the body for the low back on December 7, 2005. (Exhibit 5, pages 1-2). Leading up to October 2014, he had limited movement by the end of the day, and he was more cautious on ramps.

2009 Right small finger - Claimant attempted to catch a falling case of soda while working in Illinois on March 20, 2009. On March 30, 2009, R. Evan Crandall, M.D., repaired Claimant's torn extensor tendon in his right pinky finger. (Exhibit 23, pages 5-6). K-wire was removed on April 23, 2009. Claimant participated in physical therapy and at the Work Center, Inc., from April 2009 to June 2009. (Exhibit 22, pages 1-29). Dr. Crandall rated 25 percent PPD of the right small finger at the proximal phalangeal joint.

The case settled in Illinois for 27.5 percent PPD of the right hand on February 6, 2012. (Exhibit 5, pages 3-4). The stipulation left medical treatment open for two years, but none was provided. Leading up to October 2014, he constantly hit it on things, cut it, had difficulty grabbing things and it got in the way. He considered having it removed but decided against this. During this period, he changed routes and moved less cases. He returned to work with no physician-imposed restrictions. On June 17, 2014, Claimant settled with the Fund for ten percent of the right hand for the primary injury, 21 percent PPD of the BAW for the prior lumbar spine, and 45% PPD of the prior right hip. Claimant is right handed. ((Exhibit 4, page 12).

The October 2, 2014 work injury

While a restrained driver making a delivery on October 2, 2014, a car hit Claimant's vehicle on the highway, tore the wheel off his truck and caused him to hit a concrete barrier head on at approximately 40 miles per hour. He received treatment at Barnes-Jewish Hospital for right hip pain. Claimant's truck was totaled.

Concentra ordered an MRI, and referred Claimant to Dr. Taylor, who injected his neck and referred him to Dr. Rutz. Dr. Rutz performed surgery at C4-5, C5-6, and C6-7. The fusion at C6-7 was not solid, so a second surgery was performed to insert hardware. However, due to neck pain, a third surgery was performed to remove the hardware. Dr. Rutz released Claimant from medical care on March 14, 2017, with no restrictions.

On June 15, 2018, Claimant settled the case with the Employer for 46 percent PPD of the cervical spine.

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Claimant testified he continued to work for the Employer until July 2018 because he needed the money and he was afraid he would not be able to support his family if he stopped working. Also, his son was in college. He chose to work without restrictions because he would be unable to work if restrictions were imposed. Before work, he took Aleve to relieve pain. After work, he drank alcohol to relieve symptoms. In addition, his wife gave him medication to relieve pain. Later, he stopped drinking. He missed a few days from work. He had neck pain and his arms tingled into his fingers.

Claimant terminated his employment after he picked up an empty pallet, threw it on top of another one and felt pain in his arms that radiated into his fingers. He no longer felt it was safe to drive an 18 wheeler with that type of pain. He reported the new injury and learned that his Employer wanted him to stop working. So, he settled the new injury for $\ 500.00 and retired. ${ }^{5}$

After Claimant left Pepsi, he drove a school bus from September 2018 to March 2020. First, he drove a big bus, later he changed to a shorter one. The job required Claimant to pull a 75 -pound bag, which represented a child in need of help. He used his left leg to pull the bag and repeat. He worked five days a week during the school year, two hours in the morning and two hours in the afternoon. In between shifts he ran errands for his wife. In the summer he received unemployment compensation benefits.

While driving the bus, Claimant experienced pain in his arms, hip and back. When the pandemic hit, Claimant stopped driving the bus his arms stopped hurting so, he did not return to work.

After Claimant stopped driving the school bus, he was bored so he applied to move trucks at a truck center in Troy, Mo. Claimant was hired but he failed the physical examination because he had trouble lifting 25 pounds. In addition, his heart rate may have been a problem.

During the hearing, Claimant was asked, given his pain level, why did he look for work driving a school bus or moving trucks, after he left the Employer. Claimant responded: "Because I want to work. It's no fun sitting at home."

[^0]

[^0]: ${ }^{5}$ At the start of the hearing, the claim was dismissed.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

Claimant's current complaints include constant neck pain, with tingling into his arm and fingers. Currently, he is not under a doctor's care because he can handle the pain provided he does not overuse his arms. His neck remains stiff. He does not have sufficient breath to walk more than a quarter of a mile. His legs become sore with walking. On stairs, Claimant steps with the left foot then pulls the right foot up to that step because his right leg is too weak to walk normally. He falls asleep in an easy chair, because it is more comfortable than sleeping in a bed. A sleep apnea machine helps him sleep. He has trouble putting on his left sock and shoe due to knee stiffness. It takes ten minutes for him to cut his back lawn with a riding mower. His neighbor cuts the front lawn. Claimant stopped chopping wood and playing golf because his neck became tired after three holes.

He can vacuum, do laundry, unload the dishwasher to the counter for his wife to put away dishes, cut the back yard with a riding lawn mower (takes six to ten minutes), and drive provided he keeps his arms parallel. He can manage his personal care. His neighbor cuts the front lawn. His hip bothers him if he sits too long. While driving, his arms bother him if he lets his arms hang. Claimant helps his wife as much as he can, but his wife won't let him do much because he will be in pain later.

Claimant gave Concentra a history of being hit by another vehicle on October 2, 2014, which spun out, and caused him to hit the car, veer into the center lane and hit a concrete barrier. (Exhibit 11, page 33). Claimant was transferred to Barnes-Jewish Hospital Emergency Department, where his right hip, pelvis, and chest were x-rayed, and an ultrasound was taken of his abdomen.

X-rays revealed spondylosis, loss of disc height, subluxation and disc osteophytes. MRI findings revealed spondylosis with central spinal stenosis, worse at C4-5, C5-6, and C6-7, abnormal T2 signal, and disc degeneration. (Exhibit 13, page 68). Michael P. Kelly, M.D., examined Claimant, reviewed diagnostics, suggested options, and recommended he return in six months.

November 11, 2014 - EMG/NCV nerve conduction studies, revealed severe chronic, right worse than left, C6-7 radiculopathies, left worse than right, chronic C5-6 radiculopathy. Right paraspinals demonstrate evidence for active radiculopathy with fibrillations overlying the chronic changes noted in the extremities. Dr. Phillips noted

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components of the bedside exam that were worrisome for myelopathy. There is left worse than right ulnar neuropathies across the elbows, and medium neuropathies across the wrists, worse on the right. (Exhibit 28, page 2).

On November 11, 2014, Brett Taylor, M.D., examined Claimant, reviewed the October MRI dated October 17, 2014 and the nerve conduction studies. Dr. Taylor opined the MRI showed myelomalacia, and attributed it to the truck accident. He further opined the hyperextension and hyperflexion of Claimant's spine by the accident "pinched" the pre-existing stenosis in his spine, which aggravated and altered Claimant's symptoms and physical condition. Dr. Taylor recommended surgery.

An October 20, 2015 myelogram of the cervical spine revealed solid fusion with hardware at C4-5, C5-6 and C6-7. A C3-4 small disc defect was identified with dural displacement, but no central canal or foraminal stenosis, and bilateral lateral recess stenosis was seen at all three post-op levels. (Exhibit 7, page 2)

October 20, 2015, CT of the cervical spine post myelogram revealed anterior decompression and instrumentation at C4-5, C5-6 and C6-7, fusion solid at C5-6 and C6-7, but equivocal at C4-5. Disc height loss, facet arthropathy at C3-4 with severe foraminal stenosis; facet arthropathy at C2-3, right greater than left foraminal stenosis. (Exhibit 7, page 3-4)

March 29, 2016, CT of the cervical spine without contrast - Decompression at C4-5, C5-6 and C6-7 with solid fusion all three levels; advanced degeneration C3-4, disc height loss, bulge and spurring, mild central canal stenoses C3-4, C4-5, C5-6 and moderate C6-7, bilateral foraminal stenoses all levels; severe C2-3 facet arthropathy, right probable severe bilateral C7-T1 facet arthroplasty from stenoses all levels. (Exhibit 7 page 5).

A March 14, 2017, myelogram of the cervical spine revealed, post-operative fusion C4-C7 with narrowing to the left, solid fusion, moderate to advanced degenerative disc disease C3-4 and stenosis, facet arthroplasty C2-3, right, C3-4, left and C7-T1 stenosis bilaterally. (Exhibit 7 page 7).

Kevin D. Rutz, M.D., diagnosed cervical stenosis, related the need for surgery to the motor vehicle accident, and caused radiculopathy in Claimant's non-symptomatic pre-existing cervical stenosis. (Exhibit 12, page 51). On July 10, 2015, Dr. Rutz performed a posterior cervical discectomy and fusion with instruments, allograft and bone grafting, from C4-C7 after Claimant received cardiac clearance. On December 11, 2015, Dr. Rutz performed a posterior fusion at C6-7. On May 13, 2016, Dr. Rutz removed hardware from Claimant's cervical spine at C6-7, and ordered more physical therapy in June 2016. In July 2016, Claimant's release from medical care was delayed

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because of treatment for heart problems. On August 30, 2016, Dr. Rutz examined Claimant, and noted that overall he "looked good." Claimant requested to work without restrictions, and Dr. Rutz agreed.

On September 27, 2016, Claimant reached MMI, however, Claimant returned with complaints of increased neck pain, radiating to bilateral arms and fingers, arm numbness when driving, and decreased hand coordination. X-rays and a CT scan revealed solid fusion from C4 to C7. Facet arthropathy and foraminal stenosis were noted at adjacent levels. Dr. Rutz opined Claimant's symptoms came from adjacent disc levels, unrelated to the work injury. He noted Claimant's pain radiated diffusely into his bilateral hands. Dr. Rutz opined Claimant remained at MMI from the work injury and returned him to work full duty on March 14, 2017.

NOTE: According to Dr. Volarich's January 30, 2018 report, Dr. Kennedy performed an IME on May 2, 2017, and limited Claimant's lifting to 40 pounds and minimal overhead lifting as a result of the October 2, 2014 work injury. (Exhibit 1, page 52). Dr. Kennedy's report is not in evidence.

Expert medical opinion

David Volarich, M.D., is a physician, board certified in nuclear medicine, occupational and preventive medicine, and as an independent medical ("IME") examiner. Dr. Volarich reviewed medical records, wrote reports, and examined Claimant three times at the request of his attorney; on January 30, 2018, December 5, 2018, and October 15, 2020. Dr. Volarich testified at the request of Claimant's attorney.

Dr. Volarich's January 30, 2018 IME report

Dr. Volarich diagnosed the following medical conditions related to the October 2, 2014 work injury: 1) bilateral upper extremity radiculopathy, due to aggravation of spinal stenosis at C4-5, C5-6, and C6-7 with anterior cervical discectomy and fusion, 2) persistent cervical radiculopathy, and 3) painful posterior hardware removal at C6-7.

Dr. Volarich further opined the accident was the "primary and prevailing factor" that caused cervical radiculopathy and irreversible aggravation of spinal stenosis that required anterior cervical discectomy and fusion with instruments at C4-5, C5-6, and C6-7, and posterior fusion with instruments at C6-7 and removal of posterior hardware at C6-7.

Claimant reported he returned to work full duty after right hip surgery, with no restrictions or accommodations. Complaints leading up to October 2, 2014 included stiffness and pain. He worked slower and used caution when loading and unloading with a two-wheeler due to right hip limitations, pain and stiffness.

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For the primary injury to Claimant's cervical spine, Dr. Volarich rated 60 percent of the cervical spine. (Exhibit 1, page 59).

For the pre-existing disabilities, Dr. Volarich rated the following:

1. 50 percent PPD for the right hip;
2. 25 percent PPD of the body for the lumbar spine; and
3. 15 percent PPD of the right hand

During deposition, Dr. Volarich testified that Claimant's pre-existing disabilities had the following impact on his primary injury to his cervical spine:

> "In this case, all of (Claimant's) neuropathic and mechanical problems place more demand on his heart to accomplish movement around the affected joints. Because the affected joints were less efficient with movement, they required more energy to overcome the resistance to the movement imparted by the mechanical and neuropathic dysfunctions. (Claimant) advised that the interplay between his heart disease and neuromuscular symptoms made it more difficult for him to compensate for his increased neuromuscular demands because of the diminished cardiac output, and it made it more difficult for him to function efficiently at work and at home." (Exhibit 1, pages 21-22).

As for synergy, Dr. Volarich opined the combination of Claimant's problems with his back, hip, and finger grip when combined with loss of motion from the cervical fusion at three levels, and neuropathic problems in both arms make it more difficult to perform activities at home and at work. He could not maintain a safe three-point contact when getting in and out of his truck, trailer, operating a two-wheeler and land gear, or performing active movements.

Dr. Volarich released Claimant to work full duty to tolerance. Dr. Volarich testified he did not impose permanent restrictions because Claimant continued to work, and he may have been terminated if restrictions were imposed.

Dr. Volarich reported Claimant returned to work after his back injury, without accommodations or assistance from coworkers, and he did not miss work due to his injuries. However, he was careful when lifting cases of soda and operating the two-wheeler on ramps. He changed his movements to avoid further injury. After the right pinky/hand injury, Claimant told Dr. Volarich he returned to work full duty, without accommodations, restrictions or lost time from work due to the injury.

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Dr. Volarich's addendum dated December 5, 2018

Claimant reported he continued to work since January 2018 with hand numbness when driving, electric shock pain in his left arm with certain movements, and problems lifting 20 pounds. But on June 7, 2018, Claimant decided to retire after he experienced a severe electric shock pain in his left arm and numbness in his hands. Claimant had planned to retire in September 2018.

After review of medical records, Dr. Volarich added dilated cardiomyopathy as another medical condition that Claimant had before October 2, 2014, which is the failure of the heart muscle to properly contract. In 1981, the Department of Motor Vehicles diagnosed the medical condition during physical evaluation. Also, Claimant gave Dr. Volarich a history of heart problems leading up to October 2, 2014.

Dr. Volarich rated Claimant's pre-existing heart disability as 25 percent PPD of the body, which caused shortness of breath and limited endurance leading up to October 2, 2014.

Regarding the impact of Claimant's heart condition on his primary injury, Dr. Volarich testified:

> "("Claimant") also experienced cardiac symptoms that would leave him feeling more dyspneic; that's short of breath with exertion and easily fatigued prior to his injury, and this is the neck injury. With diminished cardiac output, there was also a generalized weakness that could occur due to the diminished perfusion of tissues, which is a multi-has a multifocal impact on the musculoskeletal system, making all musculoskeletal movements even more difficult even though they were not mechanical or neuropathic. In this case, all of his neuropathic and mechanical problems place more demand on his heart to accomplish movement around the affected joints. Because the affected joints were less efficient with movement, they required more energy to overcome the resistance to the movement imparted by the mechanical and neuropathic dysfunctions. He advised that the interplay between his heart disease and neuromuscular symptoms made it more difficult for him to compensate for his increased neuromuscular demands because of the diminished cardiac output, and it made it more difficult for him to function efficiently at work and at home." (Emphasis added)

Dr. Volarich's previous opinions did not change regarding causation, synergy and disability. Dr. Volarich maintained his previous opinion that Claimant's combined

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disabilities created substantially more disability than the simple sum of each injury, therefore, a loading factor should be applied.

For disabilities related to the spine after October 2, 2014, Dr. Volarich imposed the following restrictions:

- Limit repetitive bending, twisting, lifting, pushing, pulling, carrying, climbing and similar tasks as needed;

- Limit weight to 20 pounds occasionally with proper lifting;

- No lifting weight over head or away from the body, long distances or uneven terrain;

- Change positions every 30 minutes for sitting and standing to maximize comfort, and rest as needed;

- Engage in home exercise including aerobic activities.

For disabilities related to the spine before October 2, 2014, Dr. Volarich imposed the following restrictions:

- Bend, twist, lift, push, pull, climb, and similar activities to tolerance;

- Handle weight above head to tolerance;

- Stay in a fixed position to tolerance;

- Change positions frequently and rest to maximize comfort;

- Engage in a home exercise program

For disabilities related to the lower extremities before October 2, 2014, Dr. Volarich imposed the following restrictions:

- Limit repetitive stooping, squatting, crawling, kneeling, pivoting, climbing, and all impact maneuvers;

- Use caution on uneven terrain, slopes, steps, ladders, especially when handling weight to tolerance and walking;

- Use pads when on his knees;

- Engage in a home exercise program.

For the right hand prior to October 2, 2014, Dr. Volarich advised Claimant to work full duty to tolerance with normal work precautions.

For the heart before October 2, 2014, Dr. Volarich advised Claimant to take medications as prescribed, avoid weather extremes and strenuous activities, including pushing, pulling, and carrying, and handle weight to tolerance.

Dr. Volarich's second addendum dated October 15, 2020

Dr. Volarich testified the only addition in the October 2020 report from his other two reports is his review of additional medical records related to Claimant's right hip and

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lumbar spine. Based on his review and Claimant's reported history, Dr. Volarich maintained his opinion that Claimant is PTD due to the work injury on October 2, 2014 and his pre-existing medical conditions.

Dr. Volarich's December 2018 report contains a history that Claimant retired in June 2018 because of hand problems with driving. However, the December 2018 and October 2020 reports do not contain a history of Claimant driving a school bus from September 2018 to October 2020.

Dr. Volarich testified his opinion did not change about Claimant's ability to work because he drove a school bus part-time. Dr. Volarich based his opinion on a job description that Claimant drove a small bus for a short period in the morning, took a break, lies down, and drove for a short period in the afternoon. (Exhibit 1, page 33). However, during the hearing, Claimant testified he drove the school bus for several hours in the morning, ran errands for his wife mid-day, and drove for several hours in the afternoon.

Dr. Volarich's opinions did not change about his prior diagnoses, disability, restrictions and synergy.

Expert vocational opinion

Mr. Dolan is a certified rehabilitation counselor and a licensed clinical professional counselor. On March 12, 2019, Mr. Dolan interviewed Claimant for nearly three hours, reviewed medical records and Claimant's work history, administered the Wide Range Achievement Test ("WRAP"), fourth edition, wrote a report, and testified at the request of Claimant's attorney.

Claimant reported the following complaints to Mr. Dolan; a daily pain level of 3-4 out of 10 with inactivity, and 8 to 10 out of 10 with activity, and shortness of breath. When sitting, he requires a chair with arms to prevent neck pain. Standing more than 10 minutes triggers pain in his legs, hips and neck, and shortness of breath, and he loses his balance. Walking a half block to Mr. Dolan's office caused shortness of breath. Bending at the waist causes shortness of breath and neck pain. He cannot stoop or crouch. Kneeling hurts his right hip. He climbs stairs with the handrail one step at a time with both feet on a step before moving forward. Lifting more than 30 pounds causes neck pain and shortness of breath. He can carry up to 15 pounds at a time. He limits pushing and pulling because of neck pain and shortness of breath. He has reduced feeling in his right pinky finger and toes on the right foot. His arms tingle and his neck hurts when he reaches out from his body. Claimant is better with rest. When he sits, his arms bother him if they do not rest on the arm of the chair.

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At the start of Mr. Dolan's deposition, he received Dr. Volarich's report dated December 15, 2020, and testified it is not included in his written review of the case. However, Mr. Dolan testified the report did not change his findings or opinions about Claimant's ability to work. Claimant reported he did not know how to send or receive email, only uses the internet on his phone, never used word processing, spreadsheet, or bookkeeping software. Mr. Dolan testified Claimant would not be able to perform a job where computers were used without more training.

During Claimant's assessment, Mr. Dolan observed him stand four times which Claimant reported was needed to relieve discomfort.

**WRAP test results**

WRAP test results show Claimant scored at the end of 11th grade in word recognition, above the high school level in sentence comprehension, and above the high school level in math. Mr. Dolan testified, Claimant who is between the ages of 55 to 64, would be "very trainable" if he were younger.

**Transferable skills**

Mr. Dolan testified Claimant's vast knowledge of commercial driving transferred to driving a commercial school bus, but he does not believe they transfer to jobs outside commercial driving because he knows how to drive commercial vehicles.

**Conclusions**

During deposition Mr. Dolan was asked about Claimant's ability to work, and he gave the following testimony:

> "I think that -- that based on his age, his academic skills, his work skills, and the restrictions I've seen from Dr. Rutz and Dr. Volarich, he's currently working at his full vocational capacity in this part-time job that he's doing now. I think that if he for some reason loses this job either because the school district lets him go or the -- or he quits or for whatever reason, he's going to have a very difficult time, probably an impossible time finding another -- another job. The job he is doing right now is perfect for somebody with his restrictions because he can rest for several hours each day between the two driving shifts, and because the job requires no lifting at all and requires no walking or standing, he's simply seated in the driver's seat of a bus and driving the vehicle, so the job is perfect for him if he wants to continue to work."

Based on restrictions by Drs. Rutz and Volarich, Mr. Dolan opined Claimant could no longer perform the work he performed for the Employer for over 40 years. Further, Claimant is not employable in the open labor market on a full-time basis.

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because he needs to rest because of his heart problems. According to Mr. Dolan, in 1981, Claimant was told not to work because of his heart condition, but continued to do so. Claimant works to his full vocational capacity on a part time basis as a school bus driver, and can rest between runs, if needed. Mr. Dolan predicted employers who know about Claimant's medical conditions would see him as a liability. He did not expect Claimant to be able to work full time without taking excessive rest breaks because of his cardiac condition. Mr. Dolan speculated that Claimant may have been hired as a bus driver because the job is hard to fill.

Mr. Dolan testified Claimant is a motivated worker, having returned to work after many injuries against the advice of doctors, and continued to work part time after he could no longer work full time. However, Dr. Volarich's restrictions included the need to rest, which employers will not tolerate.

RELEVANT LEGAL AUTHORITY

Section 287.808 states the burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence, all material elements of his claim, including Fund liability. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968).

In deciding whether the Fund has any liability, the first determination is the degree of disability from the last injury considered alone. *Hughey v. Chrysler Corp.*, 34 S.W.3d 845, 847 (Mo. Ct. App. 2000). Pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined. *Id.* (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).

Section 287.220.3 (2014) established the requirements needed to establish Fund liability for PTD benefits for injuries that occur on or after January 1, 2014, in relevant part below:

(1) All claims against the second injury fund for injuries occurring after January 1, 2014 and all claims against the Fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

6 Several cases in this award have been overruled on other grounds by the Hampton case. In this award, no further reference is made to the Hampton decision.

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(2) No claims for permanent partial disability occurring after the effective date of this section shall be filed against the (Fund). Claims for permanent total disability under Section 287.200 against the Fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented pre-existing disability equaling a minimum of 50 weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

a) A direct result of active military duty in any branch of the United States Armed Forces; or

b) A direct result of a compensable injury as defined in Section 287.020; or

c) Not a compensable injury, but such pre-existing disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated pre-existing injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

d) A pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the pre-existing disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; and

b. Employee sustains a subsequent compensable work-related injury....

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

1. (1) In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability or death, the state treasurer as custodian shall be named as a party, and shall be entitled to defend against the claim.

Section 287.020.6 defines "total disability" as the inability to return to any employment and not merely the inability to return to the employment the employee was engaged in at the time of the accident. It does not require that the claimant be

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completely inactive or inert." *Pavia v. Smitty's Supermarket*, 118 S.W.3d 228, 234 (Mo. Ct. App. 2003) (Citations omitted).

The critical question in determining whether a workers' compensation claimant is permanently and totally disabled is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. *Radar v. Werner Enterprises, Inc.*, 360 S.W.3d 285 (Mo. Ct. App. 2012).

In cases of permanent total and permanent partial disabilities, payment is due at the start of the disability. Thus, payment should have begun when the disability began, *Hall v. Wagner Div.-McGraw-Edison*, 782 S.W.2d 441, 444 (Mo. Ct. App. 1989).

In *Treasurer of State v. Parker*, 622 S.W.3d 178, 181 (Mo. 2021), the Court explained the requirements contained in Section 287.220.3. Employees must meet two conditions to establish a compensable PTD claim against the Fund. First, the employee must have at least one qualifying pre-existing disability, § 287.220.3(2) (a). To qualify under the first condition, the pre-existing disability must be medically documented, equal to at least 50 weeks of permanent partial disability, and meet one of the following criteria:

1. A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in Section 287.020; or

(iii) Not a compensable injury, but such pre-existing disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated pre-existing injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.

Second, the employee must show he "thereafter sustains a subsequent compensable work-related injury that, when combined with the pre-existing disability results in a permanent total disability." § 287.220.3(2) (b). *Id.* The "subsequent compensable work-related injury" is often referred to as the "primary injury." *Id.*

Although Section 287.220.3(2) (b) refers to the pre-existing disability in the singular form the Court held that - "when combined with the pre-existing disability" -

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section 1.030 instructs that the singular form should be interpreted to include the plural form.4 (Emphasis added.) Therefore, Section 287.220.3(2) (b) should be read to include "when combined with the pre-existing disabilities. (Emphasis added) Id. at 182.

The Court further explained that Section 287.220.3(2)(b) specifies that the subsequent work-related injury must combine "with the pre-existing disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph." (Emphasis added.) By specifying that the pre-existing disability must qualify under one of the four eligibility criteria in the first condition, the legislature excluded disabilities that are not the primary injury and that do not qualify under the first condition from being considered when determining if the claimant meets the second condition. Therefore, an employee satisfies the second condition by showing the primary injury results in PTD when combined with all pre-existing disabilities that qualify under one of the four eligibility criteria listed in the first condition. Id. (Emphasis added)

DISCUSSION

In this case, Claimant asserts the following four pre-existing conditions that qualify for Fund liability. The Fund denies liability and contends evidence exists to show Claimant is PTD due to the last injury alone. The Claimant met his burden to prove his pre-existing disability to his heart, right hip, and low back qualify under §287.220.3. Claimant did not meet his burden to prove his right hand injury qualifies as discussed below.

1. Heart - Claimant asserts his heart condition qualifies as a pre-existing disability because it was medically documented, meets the 50-week requirement. The Fund concedes Claimant meets the 50-week requirement based on Dr. Volarich's rating, but contends Dr. Volarich's opinion is questionable because he imposed few restrictions for the heart condition. Here, Dr. Volarich medically documented the disability when he rated 25 percent PPD of the body for the heart condition, which equals 100 weeks of disability, which exceeds the 50-week requirement. Additionally, he recommended Claimant continue taking the heart medication prescribed by his cardiologist and avoid strenuous activity, weight and extreme weather. Claimant met his burden to prove the 50-week requirement is met.

Claimant further asserts his heart condition qualifies as a pre-existing disability under the second requirement, Section 287.220.3 (2) (a) (ii), as it directly and significantly aggravates or accelerates his subsequent work-related injury. The Fund contends Dr. Volarich did not opine that any of Claimant's pre-existing injuries aggravated or accelerated Claimant's primary injury. Further, Claimant's heart condition did not impact his ability to perform his job before the October 2, 2014 claim. The Fund's position is not persuasive.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

Dr. Volarich credibly explained the interplay between Claimant's heart condition and his subsequent work-related injury. He testified that Claimant's neuromuscular symptoms made it more difficult for him to compensate for the increased neuromuscular demands caused by his diminished cardiac output, and made it more difficult for him to function efficiently at work and at home. Based on this evidence, Claimant met his burden to show his heart condition was not a compensable injury, but it preexisted the work injury, and directly and significantly aggravates or accelerates his primary injury to his cervical spine. Therefore, his heart condition qualifies as a pre-existing disability for Fund liability.

1. **Right hip** - In post-hearing briefs, Claimant asserts his right hip qualifies as a pre-existing disability because it was medically documented, equaled more than the required 50 weeks of compensation, and was the direct result of a compensable workers' compensation injury.

The Fund conceded the hip meets the 50-week requirement because the Fund stipulated to 45 percent PPD of the right hip as part of a settlement with Claimant in 2009. However, the Fund contends Claimant's first hip injury does not qualify because it was not "a direct result of a compensable injury," under §287.020. Further, Claimant's second right hip revision does not qualify because it occurred as a part of a workers' compensation claim in Illinois, and no settlement was entered in Missouri for the claim under §287.020.

Based on the evidence discussed above, Claimant's second right hip condition qualifies as a pre-existing disability. Claimant's right hip injury was medically documented, and settled in an Illinois workers' compensation claim for 47 percent PPD of the right hip, which totals 101.5 weeks. In post-hearing briefs, Claimant asserts the maximum number of weeks in Illinois for the right hip is 215 weeks, under 820 ILCS 305/8(e). In addition, Dr. Volarich rated 50 percent PPD for the injury. Section 287.020 does not require the compensable injury to be settled in Missouri in order to qualify.

1. **Low back** - Claimant asserts his low back injury qualifies as a pre-existing disability because he submitted medical records of his surgery, and he settled the case in Illinois for 21 percent PPD of the "man as a whole" in a workers' compensation claim in Illinois, which totals 105 weeks of disability. In post-hearing briefs, Claimant asserts the maximum number of weeks in Illinois for the low back is 500 weeks, under 820 ILCS 305/8(e). In addition, Dr. Volarich rated 25 percent PPD of the low back, which totals 100 weeks and qualifies under the statute.

The Fund concedes the low back injury meets the 50-week requirement because the Fund stipulated to 21 percent PPD of the body as a whole for Claimant's low back injury, as part of a settlement for Claimant's 2009 injury. However, the Fund contends Claimant's low back injury occurred in the course of his employment and

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

settled in Illinois. Therefore, the stipulation is not adequate proof of compensability under Missouri law.

Claimant met his burden to prove his low back injury qualifies as a pre-existing disability because it was medically documented, equaled more than the required 50 weeks of compensation, and stemmed from a compensable workers' compensation injury. Section 287.020 does not require the claim to be settled in Missouri in order to qualify as a pre-existing disability.

1. Right hand - Claimant asserts his right hand injury qualifies as a pre-existing disability because he submitted medical reports from the surgeon, and Claimant settled the Illinois Workers' Compensation Commission's Settlement Contract for 27.5 percent PPD of the right hand, which totals 52.5 weeks of disability. The Fund contends Claimant's right little finger is compensable but does not meet the 50-week requirement for disability. The Fund's contention is persuasive.

Claimant met his burden to prove he sustained a compensable injury to his right hand in Illinois, but failed to prove it meets the required 50 week threshold to meet Fund liability in Missouri. In post-hearing briefs, Claimant asserts his right hand disability totaled 52.5 weeks in Illinois, according to 820 ILCS 305/8(e). However, the record contains no evidence of the maximum number of weeks allowed in Illinois for right hand injuries. In addition, Dr. Volarich's physical examination revealed better grip strength on Claimant's dominant right hand than his left hand. Finally, Dr. Volarich only rated 15 percent PPD of the right hand, which totals 26.25 weeks of disability, which is below the 50-week requirement. Therefore, Claimant did not meet his burden to prove his right hand injury qualifies for Fund liability.

Primary injury: At the start of the hearing, the parties stipulated that Claimant sustained a subsequent compensable work-related injury on October 2, 2014. During the hearing, Claimant credibly testified about his residual symptoms and limitations. The settlement with the Employer for 46 percent PPD of the cervical spine is consistent with his testimony during the hearing, medical treatment, and Dr. Volarich's rating.

Based on the above discussion, Claimant met his burden to prove the following disabilities qualify as pre-existing disabilities that trigger Fund liability:

a) Heart - 100 weeks directly and significantly aggravated or accelerated the subsequent work-related injury (Section 287.220.3(2) (a) (iii).

b) Right hip - 101.05 weeks-§ 287.220.3(2) (a) (II).

c) Low back - 105 weeks - § 287.220.3(2) (a) (II).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

Total - 306.05 weeks

In a post-hearing brief, Claimant asserts he is PTD due to his qualifying pre-existing injuries and subsequent work injury on October 2, 2014. The Fund contends if Claimant is PTD, it is due to the last injury alone, not his last injury combined with qualifying pre-existing disabilities. The Fund's position is not consistent with the facts in evidence.

First, the parties stipulated that Claimant sustained a compensable work injury on October 2, 2014. Second, Claimant met his burden to prove his prior left hip, low back and heart conditions qualified as pre-existing disabilities. Next, Dr. Volarich credibly testified that Claimant is PTD as a result of the primary work injury on October 2, 2014 in combination with all his pre-existing medical conditions. The Parker Court explained that a claimant must show the primary injury results in PTD when combined with all pre-existing disabilities that qualify under §287.220.3(2) (a). Parker, 622 S.W. 3d at 182. (Emphasis added). Here, Dr. Volarich's testimony is credible about the combined effect of Claimant's pre-existing disabilities to his heart, low back and right hip, with his primary injury to his cervical spine.

Dr. Volarich explained how Claimant's heart condition directly and significantly aggravated or accelerated his cervical spine injury. Also, he explained how Claimant's low back problems were due to mechanical dysfunction and neuropathic dysfunction of the right leg. Ankle weakness combined with hip symptoms to cause mechanical dysfunction. Dr. Volarich opined Claimant's neuropathic and mechanical problems, including his neck, placed more demand on his heart to move the affected joints, which required more energy. In other words, it became harder for Claimant to compensate for neuromuscular demands due to diminished cardiac output, which affected his ability to function efficiently at work and home.

Further, Dr. Volarich imposed spinal restrictions for disabilities that occurred before and after the 2014 primary work injury. Dr. Volarich testified he "tightened up" the spinal restrictions after Claimant's cervical spine injury, noting the spinal restrictions overlap limitations Claimant had before October 2, 2014. Additionally, he imposed restrictions for the lower extremities before 2014. In addition, in 2003, Dr. Rende imposed permanent right hip restrictions.

Vocational counselor, Mr. Stephen Dolan's testimony is persuasive and credible. He concluded the restrictions imposed by Drs. Rutz and Volarich prevent Claimant from returning to the work he performed up until 2018. In addition, Mr. Dolan opined Claimant's part-time work driving a school bus represents his maximum work capacity. Mr. Dolan predicted employers would not see Claimant as capable of successful full-term work.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

time employment. Mr. Dolan did not believe Claimant could perform full-time work, with taking excessive breaks due to his cardiac condition. Finally, based on Claimant's age, academic skills, work skills and restrictions from Dr. Rutz and Dr. Volarich, Claimant worked at his full vocational capacity as a part-time bus driver. Mr. Dolan's prediction that Claimant would not be hired again on a full time basis, was confirmed when he applied for a job moving trucks. He was hired but did not start work because he failed the physical.

Based on Claimant's credible testimony, and persuasive and credible testimony by Dr. Volarich and Mr. Dolan, and medical records in evidence, Claimant met his burden to prove in the ordinary course of business, no employer would reasonably be expected to hire him, given his present physical condition. Therefore, Claimant met his burden to prove he is PTD due to the combination of his pre-existing disability to his heart, right hip and low back, in combination with his primary injury to his cervical spine.

COMMENCEMENT OF PTD BENEFITS

Claimant testimony is consistent with medical records in evidence that he continued to work in pain after he reached MMI. Claimant testified that he worked for financial need and he wanted to work. He planned to retire in September 2018. However, on July 5, 2018, he decided to retire after experiencing pain and numbness that radiated from his arms into his hands. He did not feel it was safe to continue to drive an 18 wheeler with those symptoms. Later, Claimant drove a school bus until he realized his upper extremity pain decreased when he stopped driving due to Covid - 19. Once again Claimant tried to work but could not pass the physical examination. When asked why he continued to work in pain, Claimant testified "Cause I want to work. It's no fun sitting at home." Claimant's testimony is consistent with Dr. Rutz's medical records and Dr. Volarich's testimony that he asked to return to work without restrictions to avoid termination.

Based on credible and persuasive testimony by Claimant Dr. Volarich, Mr. Dolan, and medical records in evidence, Claimant met his burden to prove he became PTD on March 14, 2017.

In post-hearing briefs, Claimant asserted he continued to work for the Employer until July 5, 2018, for a total of 68 weeks and 3 days.

In addition, Claimant drove a school bus from approximately September 3, 2018 to March 15, 2020, five days a week, four hours a day during the school year. This period

7 After Claimant became PTD, he worked for Employer for 68 weeks and 3 days (March 14, 2017 to July 5, 2018).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

totals 80 weeks. 8 During the summer of 2019, Claimant received unemployment benefits. 9

In summary, the Employer is liable for $451.02 per week in PPD benefits for the primary injury for 184 weeks. 10 Payment is due at the start of the disability which began after Claimant stopped working on March 16, 2020. After reaching MMI, Claimant worked a total of 136 weeks, and the Fund is not liable for compensation during that time.

The Fund is liable for a weekly differential payment of 244.30 per week for 48 weeks, 11 and then, 695.32 per week for the remainder of Claimant's lifetime.

8 Claimant drove the school bus for 80 weeks (September 3, 2018 - March 15, 2020).

9 80 weeks driving the school bus, minus 12 weeks in the summer of 2019, equals 68 weeks driving the school bus. 68 weeks worked for the Employer plus 68 weeks driving a school bus equals 136 weeks worked after Claimant became Claimant reached MMI.

10 400 weeks x 46% equals 184 weeks x $451.02 = 82,987.68 paid by the Employer.

11 695.32 (PTD rate) minus $451.02 (PPD rate) = $244.30 differential per week for 48 weeks

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 14-075435

1. Claimant's testimony is credible.

1. Claimant sustained 46 percent PPD from the subsequent compensable last injury alone.

1. Claimant sustained the following medically documented pre-existing disabilities that equal a minimum of 50 weeks of permanent partial disability and qualify for Fund liability:

a) Right hip and low back - As a direct result of a compensable injury as defined in Section 287.020; and

b) Heart - Not a compensable injury, but such pre-existing disability directly and significantly aggravates or accelerates the subsequent work-related injury, as defined in Section 287.020.3 (2) (a) (iii).

1. The expert testimony of Dr. Volarich and Mr. Dolan is credible and persuasive.

1. Claimant is PTD due to a combination of his subsequent compensable work-related injury, and his qualifying pre-existing disabilities.

1. The Fund is liable for PTD benefits, pursuant to this award, for the remainder of Claimant's life.

1. The award is subject to a lien in favor of Claimant's attorney and described in this award.

I certify that on Apr 19 2022 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: *Haomi Danson*


Suzette Carlisle-Flowers

Suzette Carlisle Flowers

Administrative Law Judge

Missouri Division of Workers' Compensation

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