Jason Collins v. Century Ready Mix, Inc.

Improvee: Jason L. Collins

-2-

The Division sent its notice of the employee's September 9, 2019 claim for compensation to the employer on September 16, 2019. The employer/insurer's answer, filed on October 31, 2019, was untimely.

Based on the employee's claim statement set out, supra, and citing 8 CSR 50-2.010(8)(B), Lumbard-Bock v. Winchell's Donut Shop, 939 S.W.3d 456 (Mo. App. 1996) and Hendricks v. Motor Freight Corp., 570 S.W.2d 702 (Mo. App. 1978), the ALJ deemed that the issue of whether the employee sustained an occupational disease through repetitive trauma arising out of and in the course and scope of employment injury, as well as the issue of causation itself, were admitted as a consequence of the employer's untimely answer. We disagree.

Lumbard-Bock v. Winchell's Donut Shop, supra, at 457-458 and Taylor v. Labor Pros L.L.C., 392 S.W.3d 39, 44 (Mo. App. 2013), held "The failure to timely answer results in the factual statements in the claim being admitted, but does not result in the admission of legal conclusions such as whether the injury arose out of or in the course of the employment (emphasis added)."

The statement that the employee sustained an occupational disease caused by "some distinctive features of [his] job which was common to all jobs of that sort" and "occupational positioning" fails to clearly describe what the employee was doing and how his injury occurred. This catch-all language, apparently designed by the employee's attorney to encompass all possible scenarios, represents a legal conclusion as opposed to a statement of fact. Consequently, under Lumbard-Bock and Taylor v. Labor Pros., supra, the employer/insurer's untimely answer does not preclude it from disputing the issue of whether the employee sustained a compensable occupational disease injury within the course and scope of his employment. We will consider this issue on its merits.

The employee credibly described his fourteen-year exposure to continuous vibrations and jarring from seven to fourteen hours per day while sitting in a truck between five and ten years old with worn-out cushions. Dr. Brent Koprivica opined that the employee's work activities as a concrete truck driver represented an exposure to risk that was unique to his employment when compared to his non-work-related daily activities; that the employee's exposure during more than full-time employment described over years represented a severe exposure to whole-body vibration and jarring; and that the employee's workplace exposure to risk with ongoing cumulative injury on each day worked up to the listed claim date of April 2, 2019, represented the direct, proximate and prevailing factor in the development of his disc herniation with marked stenosis, post-laminectomy syndrome, right lower extremity disabling symptoms and significant psychological disability.

Based on the employee's testimony, deemed credible by the ALJ, and Dr. Koprivica's expert opinion, we find that the employee sustained a compensable occupational disease as a result of his exposure to repetitive trauma within the course and scope of his employment.

In T.H. Sonic Drive in of High Ridge, 388 S. W. 3rd 585 (Mo. App. 2012), the employee's claim alleged her average weekly wage as the "max rate." Id, at 589. The court unequivocally held, "Wage rate is a question of fact." Id, at 595. See also Taylor v. Labor Pros L.L.C, supra, at 44 (Mo App. 2013). Under these authorities, the ALJ correctly ruled that the "Maximum Rate/Wage" listed on the employee's claim was a statement of fact deemed admitted by the employer's untimely answer.

Division Rule 8 CSR 50-1.010(8) provides, in pertinent part, "Upon receipt of a Claim for Compensation, the division shall forward a copy of the claim to the employer and its insurer, or third-party administrator, if applicable. . ."

The employer/insurer asks that we disregard "hard and fast"1 provisions of this rule to find the Division's notice to the employer of the employee's claim deficient because it failed to provide service consistent with the requirements of Missouri Rule of Civil Procedure 54.13 relating to Personal Service Within the State. In its brief, the employer/insurer argues that our enforcement of this rule as it relates to admissions based on a late answer to a claim undermines the maintenance of civility and the dignity of the Missouri Workers' Compensation Act. We disagree.

We note that courts have held that "As a general proposition, the Missouri Rules of Civil Procedure . . . do not apply to workers' compensation actions, unless the statute implicates the application of a specific rule." McGuire v. Christian County, 442 S.W.3d 117, 122 (Mo. App. 2014) citing U. S. Dept. of Veterans Affairs v. Boresi, 396 S.W.3d 356, 362 (Mo. banc 2013) (internal quotation marks omitted).

The employer/insurer argues that Rule 8 CSR 50-2.010(8) violates its constitutional due process rights. The Commission's statutory authority does not extend to ruling on constitutional issues. We note the employer/insurer's request to preserve this point for review by a higher court.

Claimant's Motion for Costs Pursuant R.S.MO. § 287.560, For Employer's Frivolous Appeal

Section 287.560 RSMo provides, in pertinent part, "[I]f the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted, or defended them."

Pursuant to the section, the employee's attorney has filed a motion for attorney's fees and costs associated with his expenses and time exerted in responding to the employer's application for review to the Commission.

[^0]

[^0]: ${ }^{1}$ Employer/Insurer's Brief, p. 17.

In light of our finding that the employer/insurer's untimely answer to the employee's claim did not preclude it from disputing the threshold issue of whether the employee sustained an occupational disease arising out of and in the course of his employment, we find the employer/insurer's defense was not without reasonable ground. We, therefore, deny the employee's motion for costs and expenses.

We affirm and adopt the award of the ALJ as supplemented herein.

We approve and affirm the ALJ's allowance of attorney's fee herein as being fair and reasonable.

The December 23, 2021, award and decision of Administrative Law Judge Emily S. Fowler is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 2^{\text {nd }} \qquad$ day of February 2023.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

SEPARATE OPINION FILED

Kathryn Swan, Member

Attest:

I have read the parties' briefs, listened to their arguments, and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find that this claim is not compensable.

The majority correctly finds that the employee's claim statement relevant to the issue of whether he sustained an occupational disease in the course and scope of his employment represented a legal conclusion, not a statement of fact and that the employer is not precluded from disputing that the employee's injury arose out of or in the course of his employment.

The majority incorrectly rules in the employee's favor on the merits of this issue. It errs in relying on Dr. Koprivica's opinion that the employee was permanently and totally disabled because of his employment, because Dr. Koprivica relied on the employee's unsubstantiated self-reporting that he was jarred over two-thirds of his day in his work as a driver for the employer.

On February 4, 2020, the employee testified there was no particular onset to his symptoms and that he was "Just driving at work, doing my normal stuff at work driving a truck and I just noticed it that afternoon after I got done it started hurting worse." ${ }^{1}$ There was no reference of bouncing or jarring until Dr. Koprivica's June 17, 2020 report. Dr. Koprivica's report was also the first reference to jarring and an injury resulting from work. Dr. Koprivica defined jarring as "where you're actually driving over terrain . . . different than just the whole body vibration exposure from being in the truck while it's running." ${ }^{2}$ Dr. Koprivica found cumulative trauma from jarring two-thirds of the work day resulted in a disc herniation at L4-5. Dr. Koprivica's opinion relied on the truth of the employee's statement, alleging jarring for more than two-thirds of his work day.

As detailed by an ergonomist, Mr. Dennis Mitchell, the term "jarring" or "shocks" are typically used to define "severe" vibration events. Mr. Mitchell used standards to measure the vibration exposure. His testing revealed that jarring was present, but only for a tiny portion of the waveform for less than two seconds of jarring over 4.3 hours. As explained, the employee's exposure to jarring would have been extremely limited both while driving a cement mixer and performing normal job duties, which the employee described as requiring him to bend and kneel "a little bit" and to lift twenty-five to thirty pounds twice with each delivery." ${ }^{3}$ Mr. Mitchell's site inspection revealed that the employee's job duties involved minimal "awkward postures" such as twisting. ${ }^{4}$ Based on

[^0]

[^0]: ${ }^{1} Transcript, p. 1232.

{ }^{2} Id., p. 1031.

{ }^{3}$ Id., p. 1069.

Mr. Mitchell's findings of both jarring and whole body exposure, Dr. Koprivica could not credibly find that the employee was jarring greater than two-thirds of his work day.

Dr. Koprivica confirmed he did not measure the vibration of the employee's vehicle, nor did he know the details about the vehicle in question. The employee's self-reporting was not as reliable as the ergonomic evidence obtained by ergonomist Dennis Mitchell.

Mr. Mitchell explained that 3.47 hours represented the employee's total driving time. The employee was therefore exposed to whole-body vibration exposure while driving for fewer than four hours per day, based on a one-year analysis of his driving detail and two on-site inspections. Mr. Mitchell's detailed analysis of driver tasks performed in January 2021, along with one year of automated time records from the employee's last year at work revealed that the employee had driving exposure over terrain of 3.47 hours per day and 3.99 hours per day was spent out of his seat or sitting idle in his truck. Mr. Mitchell advised that the employee was "NOT DRIVING OVER TERRAIN for two-thirds of his workday upon which Dr. Koprivica based his opinions."5

As demonstrated above, the employee's total driving hours were less than half of his day, and most of his driving was on the road and highway. ${ }^{6}$ Mr. Mitchell evaluated both and demonstrated that jarring occurs in the employer's Century Ready Mix vehicle for less than two seconds in a 4.3 -hour span. Whole body vibrations in the vehicle were not nearly as severe of a risk as alleged by the employee. Mr. Mitchell's testimony and evidence demonstrate the flaws of Dr. Koprivica's opinion. Dr. Koprivica's opinion should not be adopted because it is premised upon the employee jarring for over twothirds of his work day.

The employee failed to sustain his burden of proving his employment was the prevailing factor causing his injury. Mr. Mitchell's report demonstrated there was inadequate evidence to establish that whole-body vibrations from the Century Ready-Mix trucks contribute to low back injuries. The employee did not perform heavy-duty activities in his job.

In addition to the evidence demonstrating that the employee did not jar for greater than two- thirds of his employment, Dr. Koprivica's opinion is not as persuasive as the opinion provided by Dr. Fevurly. Dr. Fevurly found that the prevailing factors causing the employee's degenerative disc disease were genetics and age, not the employee's job duties. No injury arose out of the employee's employment.

[^0]

[^0]: ${ }^{4} Id., p. 1082.

{ }^{5} Transcript, p. 1072.

{ }^{6}$ Id., p. 1076-1077.

The administrative law judge's (ALJ's) findings that the employee is entitled to the maximum wage rate should be reversed because the ALJ failed to consider the evidence in the record as a whole, clearly demonstrating that the employee's average weekly wage was inconsistent with the rate alleged in his claim for compensation. The case of T.H. v. Sonic Drive In of High Ridge, 388 S.W.3d 585 (Mo. App. 2012) is distinguishable because, in that case, not only did the employer file an untimely answer, the court held that "There was not sufficient competent evidence in the record to support the Commission's finding that the applicable rate of compensation for Claimant's award was $\ 40.00 per week. (emphasis added)" Id., at 595.

In this case, using the wage statement in evidence, the employee's average weekly wage was $\ 664.84. The employee was paid biweekly. Per § 287.250 RSMo, using the twelve calendar weeks prior to the date alleged, the lump sum total amounts to $\ 7,978.08. Divided by twelve, this results in an average weekly wage of $\ 664.84. This results in a compensation rate of $\ 443.22. The evidence clearly demonstrates that the employee was not a maximum wage earner. Permitting a maximum wage award despite evidence to the contrary would allow an inappropriate windfall. The Commission should avoid establishing a precedent in this case that incentivizes windfalls.

The Commission should find the timing of correspondence between the parties in this case telling: 1) The employee filed a claim for compensation alleging the maximum wage rate; 2) The employer filed an answer untimely within two months of the compensation claim; 3) Two weeks following its answer, the employee provided wages to the employee below the maximum wage rate; 4) The employer maintained communication in an effort to reach a stipulation regarding the employee's average weekly wage; 5) The employee failed to respond to the employer and raised the issue of average weekly wage at the hearing, more than two years after filing his compensation claim.

If there was a genuine concern regarding the employer's untimely answer, the employee had the opportunity to object to such an answer and discuss the matter with the employer. The Commission should find that there was no admission of the average weekly wage based on the substantial and competent evidence in the record.

The employer's application for review and brief raise a colorable constitutional challenge regarding factual admissions based on its late answer, relevant to the Division of Workers' Compensation's method of providing notice to the employer of the employee's claim. The majority's opinion properly preserves this challenge for review by a tribunal with jurisdiction to review constitutional issues.

In conclusion, the overwhelming evidence demonstrates that the employee's injury did not arise out of his employment. Because this claim is not compensable, there should be no benefits owed.

Because the majority finds otherwise, I respectfully dissent.

Kathryn Swan

Kathryn Swan

Number

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Collins

Employee: Jason Collins

Injury Nos. 18-111662

Dependents: None

Employer: Century Ready Mix Inc.

Insurer: Century Ready Mix, Inc. C/O Cottingham \& Butler Claims

Additional Party: None

Hearing Date: September 29, 2021

Checked by: ESF/pe

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: April 2, 2018
5. State location where accident occurred or occupational disease was contracted: Lee's Summit, Jackson County, Missouri
6. Was above employee an 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: Jason Collins sustained cumulative injuries or occupational disease to his back and right lower extremity as a result of continuous vibrations and jarring as a truck driver for 14 years.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 18-111662

Employee: Jason Collins

1. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Back and right lower extremity

1. Employer/insurer liability: Nature and extent of any permanent disability: Permanent Total Disability. Second Injury Fund liability: None

1. Compensation paid to date for temporary disability? $0

1. Value of Temporary Total Disability not furnished by employer/insurer? N/A

1. Value of necessary medical aid paid to date by employer/insurer? 0

1. Value of necessary medical aid not furnished by employer/insurer? N/A

1. Value of necessary medical mileage not furnished by employer/insurer? N/A

1. Did accidents or occupational diseases cause a need for future medical treatment? Yes

1. Weekly compensation rate: $923.01/$483.48

1. Method of wage computation: Determined by the Court.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Permanent total disability benefits of $923.01 per week from employer beginning October 19, 2019, and continuing for as long as Employee remains permanently totally disabled.

Future medical treatment to be provided by the employer to Employee to cure and relieve the effects of his injury including but not limited to pain management, psychiatric care and surgery.

1. Second Injury Fund Liability: None

The compensation awarded to the Employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of Mr. Mav Mirfasihi for necessary legal services rendered to the Employee.

Employee: Jason Collins

Injury Nos. 18-111662

Dependents: None

Employer: Century Ready Mix Inc.

Insurer: Century Ready Mix, Inc. C/O Cottingham \& Butler Claims

Additional Party: None

Hearing Date: September 29, 2021 Checked by: ESF/pe

On September 29, 2021, the parties appeared for a Final Hearing pursuant to R.S.Mo. § 287.460, and presented their evidence. The Division has jurisdiction to hear this case pursuant to $\S$ 287.110. The Employee, Jason Collins, appeared in person and through counsel, Mr. Mav Mirfasihi. Employer appeared through counsel, Mr. John Jurcyk. The Second Injury Fund appeared through counsel, Assistant Attorney General Ms. Shelly Hinson.

The parties stipulated to the following:

1. That the employer, Century Ready Mix Inc., was an employer operating subject to the provisions of the Missouri Workers' Compensation law on April 2, 2018, and was fully insured by Century Ready Mix Inc. c/o Cottingham \& Butler Claims:
2. That Jason Collins was its employee and he was working subject to the law in Jackson County, Missouri;
3. That Missouri has jurisdiction to hear this matter:
4. That the employee filed his claim within the time allowed by law;
5. That the employer has paid no temporary total disability benefits, nor has it paid for medical care;

The issues to be resolved by this hearing are as follows:

1. Whether the employee sustained an occupational disease through repetitive trauma arising out of and in the course of his employment.
2. Determination of employee's average weekly wage and compensations rates;
3. Whether the employee is entitled to temporary total disability benefits from April 2, 2018 to October 19, 2019;
4. Whether the employee notified the employer of the injury as required by law;
5. Determination of employee's date of maximum medical improvement;
6. Whether the employer must provide the employee with additional medical care;
7. Whether the employee suffered any disability and if so the nature and extent of employee's disability
8. Whether the Second Injury Fund is liable to the employee for any disability compensation.

Jason Collins testified in person and offered the following exhibits into evidence without objections. The following exhibits 1-20 are all admitted and any objections contained therein are overruled.

Exhibit 1 - St. Luke's Hospital Of KC records

Exhibit 2 - St. Luke's Health Systems (Neurosurgery) records

Exhibit 3 - St. Luke's Health Systems (Rockhill Orthopedic) records

Exhibit 4 - Stipulated Settlement 22.5\% whole body, 5/01/00 injury

Exhibit 5 - Stipulated Settlement 12.5\% right knee, 10/25//04 injury

Exhibit 6 - Stipulated Settlement 10\% left hand, 1/13/14 injury

Exhibit 7 - Encompass records (9/02/10 - 2/05/20)

Exhibit 8 - KC Pain Centers records

Exhibit 9 - Centerpoint Medical Center records

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Collins

Injury Nos. 18-111662

Exhibit 10 - St. Luke's Health Systems records

Exhibit 11 - Dr. Koprivica's IME Report

Exhibit 12 - Michael Dreiling's Deposition

Exhibit 13 - Michael Dreiling's Vocational Report

Exhibit 14 - Dr. Brent Koprivica's Deposition

Exhibit 15 - 10/25/19 Letter to Employer

Exhibit 16 - 10/14/19 Termination letter from Employer

Exhibit 17 - Claim For Comp. filed 9/09/19

Exhibit 18 - Division Notice Letter to Employer 9/16/19

Exhibit 19 - Answer filed 10/31/19

Exhibit 20 - Attorney Client Contract

Employer offered the live testimony of Mr. Dennis Mitchell and offered the following

exhibits into evidence. Hearsay objections were made as to exhibits A and H. The objections to A

and H were all overruled. The following were all admitted.

EMPLOYER/INSURER'S EXHIBITS:

Exhibit A - Century Ready-Mix - Driver, WBV, Low Back with CF (Hearsay)

Exhibit B - Dr. Chris Fevurly's deposition

Exhibit C - Dr. Chris Fevurly's IME

Exhibit D - Dr. Chris Fevurly's CV

Exhibit E - 60-Day Letter to Claimant's attorney

Exhibit F - Wage Statements

Exhibit G- Jason Collins' deposition

Exhibit H - Time Analysis Tickets Per Da

The Second Injury Fund offered no live testimony but offered the following exhibit which

was admitted without objection:

SECOND INJURY FUND EXHIBIT:

Exhibit Roman Numeral I - Jason Collins' deposition 12/08/20.

5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 18-111662

Employee: Jason Collins

Based on the review of the above exhibits and the testimony of the witnesses, I make the following findings and rulings:

"Unless the Answer to Claim For Compensation is filed within thirty (30) days from the date the division acknowledges receipt of the claim or any extension previously granted, the statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings." *Emphasis added. 8 CSR50-2.010(8)(B); State ex Rel Taylor v. Meiners*, 309 s.w.3d 392 (Mo. App 2010).

Jason Collins' (hereinafter referred to as Employee) Claim for Compensation was filed on September 9, 2019. The Division sent its Notice of Claim Filing to the employer on September 16, 2019. The employer's Answer was due within thirty days of the Notice of Claim Filing or on or before October 16, 2019. *8 CSR50-2.010(8)*. The employer filed its Answer 15 days late, or on October 31, 2019. The filing of the employer's late Answer is undisputed and uncontroverted. Pursuant to *8 CSR50-2.010(8)(B)* the statements of fact in Employee's Claim For Compensation are all admitted.

The parties have raised eight issues to be determined by the Division. Three of those issues are: One, whether the occupational disease through repetitive trauma injury occurred within the course and scope of employment; two, determination of Employee's average wage and compensation rate; and, three, Employee's entitlement to temporary total disability benefits. These are factual statements that are admitted as discussed in further detail below. I will discuss these three issues first as they relate to the late answer.

Employee's Claim for Compensation describes what he was doing and how the injury occurred as follows:

On or about 4/02/18 in Lee's Summit, MO during the ordinary course and scope of his employment with Century Ready-Mix, Inc. and/or Century Concrete, Inc. as a truck driver/laborer, Employee was exposed to occupational disease/cumulative trauma in a degree greater than or different from that which affects the public generally and some distinctive features of his job which was common to all jobs of that sort. As a direct, proximate, and prevailing factor of his occupational positioning and duties, he suffered back, right lower extremity, and body as a whole cumulative trauma or disease thereby directly causing permanent partial disability, temporary total disability, permanent total disability, past and future medical bills, and whole cost....

Employee's statement that he was exposed to an occupational disease or injury involving his back, right lower extremity, and body as a whole arising out of and in the course and scope of his employment is a statement of fact admitted by the employer's late Answer. Injury and causation are factual issues deemed admitted if the Answer is untimely. *Lumbard-Bock v.*

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 18-111662

Employee: Jason Collins

Winchell's Donut Shop, 939 S.W.2d 456 (Mo. App. 1996) (overruled on other grounds); Hendricks v. Motor Freight Corp., 570 S.W.2d 702 (Mo.App.1978). Date of accident on the pleading is a factual issue deemed admitted, if Employer fails to timely file an Answer. Hendricks v. Motor Freight Corp., 570 S.W.2d 702 (Mo. App. 1978).

This Court notes that the issue of causation itself was never raised by the parties at trial as an issue to be determined at hearing. Even if it had been, that fact would also have been admitted by virtue of the employer's later answer as noted above.

I find Employee sustained an occupational disease arising out of and in the course of his employment.

Issue II: Employee' Wage Rate

Employee's Claim For Compensation, paragraph five, states his Average Weekly Wage is "Maximum Rate/Wage." "Maximum Rate/Wage" rate alleged is a factual statement and not a legal conclusion. T.H. v. Sonic Drive In Of High Ridge, 388 S.W.3d 585 (Mo.App. E.D. 2012). In this case, the Eastern District determined "Wage rate is a question of fact. Given that Employer has failed to file a timely answer, the "max" wage rate as alleged in Claimant's claim for compensation was a factual allegation deemed admitted by Employer." In that case, the employee alleged in his Claim for Compensation that his rate was the Max Rate. This was confirmed by the Western District in Taylor v. Labor Pros L.L.C., 392 S.W.3d 39, 45-6 (Mo.App. W.D. 2013) the Court again affirmed the issue, "Our courts have recognized that the employee's average weekly wage is a fact that is admitted by an employer's untimely answer. Aldridge v. S. Mo. Gas Co., 131 S.W.3d 876 (Mo.App. S.D.2004). Even the factual allegation of "max rate" as to the average weekly wage was recently deemed admitted by an untimely answer, because it was a factual allegation that was easily computed by the statute and rules in effect at the time of the accident. T.H. v. Sonic Drive In of High Ridge, 388 S.W.3d 585, 594 (Mo.App. E.D.2012)."

Therefore, based on these court rulings, the Court finds that the compensation rate shall be the max rate of 923.01 for temporary total and permanent total disability and 483.48 for permanent partial disability benefits.

Issue III: Whether Employee is entitled to temporary total disability benefits from April 2, 2018 to October 19, 2019

I do not find the employer liable for any temporary total disability benefits, because I find Employer liable to Employee for permanent total disability.

Issue IV: Whether Employee notified the employer of his injury as required by law

April 2, 2018, Employee did not suspect that his injury was work related according to his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Collins

testimony, since there was no acute incident. Thus, he did not notify his employer of any such acute injury at that time. Employee learned that he could have an occupation injury that could be linked to his occupation in late August 2019. He testified he notified his employer late in August 2019 as soon as he learned that his injury could be the result of his occupation. However, the employer did not offer him any treatment. The next day, Employee called and hired an attorney who filed a Claim for Compensation date stamped for September 9, 2019. The exact issue of notice raised in this case by the employer has been previously addressed by Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823 (Mo. App., 2009).

Section 287.420 states, in relevant part that, "[n]o proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition...."

Strictly construing this sentence, [the court in Allcorn stated,] we find that "the condition" is referring to the previously stated "occupational disease or repetitive trauma." Therefore, the question then becomes, at what point is an occupational disease or repetitive trauma diagnosed? Looking to the plain, obvious, and natural import of the language, it follows that a person cannot be diagnosed with an "occupational disease or repetitive trauma" until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. See section 287.067 (defining the term occupational disease to mean, as relevant to this appeal, "an identifiable disease arising with or without human fault out of and in the course of the employment."). Allcorn, at 829.

Here, the first time that a diagnostician made a causal connection between the occupational disease (back and right lower leg injuries) and some work-related activity or exposure (several years of whole body vibration and jarring) was by Dr. Brent Koprivica on June 17, 2020. No other diagnostician linked Employee' back and right lower extremity injuries to the continuous exposure of whole body vibration and jarring during his duties with the employer as a truck driver. Dr. Koprivica's diagnosis; therefore, triggered the notice requirement of $\S 287.420$, as outlined in Allcorn. Allcorn at 830 .

The initial Claim For Compensation satisfies the requirement of $\S 287.420$, so as to constitute notice to Employer. Allcorn at 830. The time for giving notice is "no later than thirty days after the diagnosis of the condition." R.S.Mo § 287.420. The initial claim in this case was filed on September 9, 2019, in relation to the diagnosis of the condition on June 17, 2020, by Dr. Koprivica, which meets the requirement of $\S 287.420. As held in Allcorn, " [t]$ his is so because the statute does not require that notice be given after the diagnosis, but only that it be given '[n]o later than thirty days after the diagnosis of the condition." Allcorn at 830.

Employee through his attorney requested treatment and gave notice on October 25, 2019, since the employer had failed to file a timely Answer. Whether the notice date of September 9, 2019 on the Claim for Compensation or notice to Employer on October 25, 2019 is used makes no difference, because both dates are prior to the actual date of June 17, 2020, where Dr. Koprivica made a causal connection between the underlying medical condition and Employee work activity.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 18-111662

Employee: Jason Collins

I find the employer had notice of Employee's injury as required by law.

**Issue V: The date Employee's reached Maximum Medical Improvement**

Employee testified he was terminated by the employer in September 2019. Employer's termination letter indicates he was terminated because he was approved for long-term disability on September 12, 2019. Dr. Koprivica testified Employee's maximum medical improvement date was October 19, 2019. The employer's physician did not give a maximum medical improvement date because he theorized it was inapplicable. I find Employee's maximum medical improvement date to be October 19, 2019.

**Issue VI: Whether the employer is liable for future medical expenses.**

Future medical may be awarded even in less severe cases of a permanent partial disability award and even though there is no evidence of what specific future medical will be needed in the future. *Polavarapu v. GM*, 897 S.W.2d 63 (Mo. App. 1995); *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271 (Mo. App. 1996); *Sharp v. New Mac electric Coop*, 92 S.W.3d 351 (Mo. App. 2003). Based on reasonable medical certainty, Dr. Koprivica testified that Employee has future medical needs. Dr. Koprivica opined that Employee needs continued ongoing pain management and psychiatric treatment.

Employee testified he takes Oxycodone every day for pain. He has to see a physician to obtain refills on the Oxycodone every two months, and he has to take the Oxycodone for the rest of his life. Furthermore, additional surgery has been recommended for his back pain, but the physician will not do surgery until he loses 100 pounds. Employee indicated he would elect surgery if he met the weight loss required.

An award of future medical treatment is hereby entered in favor of Employee to cure and treat his symptoms of his back and right lower extremity pain related to his work injury of April 2, 2018 including but not limited to pain management, psychiatric care and possible surgery.

**Issue VII: The nature and extent of Employee's disability.**

Employee testified in person. He is 42 years old. He completed the twelfth grade in 1997. He started working for the employer as a concrete truck driver in May of 2005 and until September 2019 when he was terminated for not being able to perform his work duties. The employer's termination letter states Employee was terminated because he was approved for the employer's long term disability benefits. He has not had any vocational training since high school, other than truck driving 15 years ago. He was never in the military.

During the course of his employment on April 2, 2018, Employee sustained an occupational disease to his back and right lower extremity. Employee testified that he would work full time, regularly 40-60 hour weeks. There were some slower times in the winter. He worked anywhere between 8-15 hours a day. Out of an 8-hour shift, he would spend 7-7.5 hours sitting in the concrete truck. Out of a 15-hour shift, he would spend 13-14 hours sitting in the

Issued by DIVISION OF WORKERS' COMPENSATION

Improved

Improved

Improved

Same truck. He testified the concrete truck would be running the entire time since power was required from the engine to run the hydraulic pumps and they were also required to move the truck frequently on the job site.

The concrete truck Employee drove was 5-10 years old. The seats in the truck were made out of metal with a medium size cushion. However, the cushions were worn out. The vibration from the diesel engine was rough, unlike a regular car. He noted one could definitely feel the engine vibrating if sitting in the truck. He also experienced jarring in his seat since he was on undeveloped roads most of the time.

Employee testified he had back pain prior to April 2, 2018, but the pain would get better with rest. However, on and after April 2, 2018, the pain never stopped. The pain had reached a constant level of a 6, on a pain scale of 0-10. The pain would shoot down his right leg. The pain would get worse than a level 6 throughout the day with work.

Employee's injury required three separate, lumbar epidural steroid injections with fluoroscopy, and eventually back surgery, including a right L5 hemilaminotomy for removal of L5-S1 herniated disc, on April 24, 2019.

Employee testified the pain was better for a short time after the injections and surgery, but the pain returned at the same level or worse within a month or two after each. Currently, his pain level is about a 6 with pain medication.

Prior to the work injury of April 2, 2018, Employee testified he had an upper back injury in 2000. However, he never had any injections, surgery, or the need for continuous pain medication for the 2000 upper back injury. The pain eventually went away. Prior to his work injury of April 2, 2018, Employee also testified he was able to perform all his work duties.

Since his work injury of April 2, 2018, Employee cannot use his back like he did before the last work injury. He is limited to how long he can sit, stand, walk, and sleep. He cannot sit or stand for more than 20 minutes. He is limited to walking about 50 feet before he has to rest. He gets about three hours of sleep at night due to pain. He takes an average of three naps during the day, each with a duration of 30 minutes due to the inability to get a full night of sleep and side effects from the Oxycodone that make him drowsy.

Employee testified he now has chronic back pain, increased urinary frequency (where he has to go every hour), fecal incontinence (2-3 times a week), sexual dysfunction, anxiety, and depression. He is not as fast as he was prior to the April 2, 2018 work injury. He cannot perform his daily activities in the same time period as he could prior to April 2, 2018.

Employee testified he used to hunt, fish, and play darts prior to the April 2, 2018, injury. However, he is now unable to do any of those because he cannot walk, stand, or sit very long. Since April 2, 2018, he no longer mows his lawn, does not wash any dishes, clean his bathtub, do any gardening, vacuum, mop, sweep, or cook. He can drive, but driving is limited to 20 minutes before he has to stop and get out to stand and stretch. I find Employee's testimony to be credible.

Issued by DIVISION OF WORKERS' COMPENSATION

Improvee

Improvee

Improvee

Dr. Brent Koprivica testified for Employee. Dr. Koprivica's deposition taken on November 24, 2020 was admitted as Exhibit 14. All objections thereto are hereby overruled. Dr. Koprivica also had a medical report admitted as Exhibit 11.

Dr. Koprivica testified that, based on reasonable medical certainty, Employee is permanently totally disabled as a result of the April 2, 2018, occupational disease in isolation. Dr. Koprivica also testified that Employee would be permanently totally disabled as a result of his preexisting May 1, 2000 injury, combined with the April 2, 2018 work injury. However, Second Injury Fund liability under §287.020 is not triggered if the last injury in isolation makes Employee permanently totally disabled, as in this case.

Dr. Koprivica diagnosed Employee with "...cumulative injury in the lumbar region, that resulted in his development of a large right-sided disc herniation at L5-S1 with marked stenosis for which he had undergone a right L5 hemilaminotomy and L5-S1 discectomy, and he had a post laminectomy syndrome as an outcome of that surgical treatment." He also diagnosed Employee with psychological disability that flowed from the April 2, 2018, injury. As a result of the April 2, 2018 work injury, Dr. Koprivica gave the following restrictions for Employee:

1. No whole body vibration or jarring that led to his cumulative injury, like operating heavy equipment, bulldozers, driving commercially, and the like;
2. Ad-lib abilities to change postures from sitting, standing, and walking;
3. No squatting, crawling, kneeling, or climbing;
4. Avoid frequent or constant bending at the waist, pushing, pulling, twisting, or sustained or awkward postures of the low back;
5. Ad-lib ability to change positions and nap due to pain and drowsiness caused by sleep interruptions and narcotic pain meds;
6. Sitting tolerance less than 20 minutes;
7. Standing tolerance less than 15 minutes; and
8. Walking tolerance of 50 feet at a slow pace.

Dr. Koprivica also testified that the significant bouncing, jarring, and vibrating as a concrete truck driver with his employer on or about April 2, 2018 was the cause and prevailing factor of his occupational disease and permanent total disability. He testified that Employee was exposed to a disease which was greater than or different from that which affected the general public. Also, that there is a recognizable link between Employee' disease and some distinctive feature of that job which was common to all jobs of that sort.

Dr. Koprivica started practicing occupational medicine in 1980. He was board certified in Emergency Medicine in 1984. He has taught emergency medicine and practiced in private practice. He also has a master's degree in public health in occupational medicine, which also

11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Collins

Injury Nos. 18-111662

resulted in him becoming board certified in occupational medicine. Dr. Koprivica is also board certified in the Preventative Medicine. I find Dr. Koprivica's testimony to be credible.

Dr. Chris Fevurly testified for the employer by deposition on April 30, 2021 which was admitted as Exhibit B. All objections thereto are hereby overruled. Dr. Fevurly also had a medical report admitted as Exhibit C. Dr. Fevurly did not give any opinions as to Employee's preexisting disabilities or conditions because he was never asked for those opinions. As such, Dr. Koprivica's opinions as to Employee's preexisting disabilities are undisputed and uncontroverted.

Dr. Fevurly theorized there was no evidence of an occupational injury to Employee's lumbar spine and no work related PPD, as a result of the April 2, 2018 occupational injury. However, Dr. Fevurly did give a 10% PPD rating to the body as a whole as a result of his back pain and radicular symptoms. Dr. Fevurly did not perform any radiologic testing on Employee. He did do some physical testing but did not know if he repeated any of the tests more than once.

Dr. Fevurly did not ask Employee about his specific job duties as a concrete truck driver, how many hours in a day he sat in his truck, how many hours in a day the truck engine was running as he sat in the truck, how many hours in a day he spent driving the truck, the type of roads he had to drive on whether paved, gravel, or dirt roads. He did not ask Employee how many hours in a work day he spent doing other tasks besides driving or whether he had any postural limitations.

In reviewing Dr. Fevurly's deposition, he stated that he had worked at a ready-mix place in high school during the summers and therefore he was, as he stated "fairly familiar with—I did not drive a truck. I worked in the yard back in high school for a summer, so I am fairly familiar with what concrete truck drivers do, and I also am fairly familiar with employees who drive concrete trucks as a significant number of the people who were seen in our occupational medicine clinic." It would appear that, rather than have Employee describe his actual duties, Dr. Fevurly relied on his own personal knowledge obtained many decades ago as a high school summer employee at a concrete company as well as information from other workers through an occupational medical clinic to inform him of Employee's work duties.

Dr. Fevurly did not state in his report whether Employee had any limitations to standing or walking. He did not do any testing to determine if Employee was limited to sitting, standing, or walking. He did not ask if Employee has trouble sleeping at night, how many naps he takes throughout the day. He did not ask if Employee needs the ad-lib ability to change postures throughout the day. He did not ask Employee if he had any depression or what was causing that depression.

Dr. Fevurly also could not confirm if he had all of Employee's medical records. Out of Employee's 1-11 medical-records/Exhibits, Dr. Fevurly could only confirm he had seen three, Exhibits 4, 5, and 11, consisting of two prior Stipulations Of Settlement and Dr. Koprivica's report. He could not confirm whether he had all the medical-records/Exhibits 1-3 and 6-10.

Dr. Fevurly opined that it would be reasonable to let Employee work at his own pace for 8 hours a day, 40 hours a week, five days a week. He also opined it was reasonable to allow him to take naps during the day.

12

Issued by DIVISION OF WORKERS' COMPENSATION

Improvee: Jason Collins

Dr. Fevurly failed to ask crucial and relevant questions regarding Employee's limitations after his April 2, 2018 work injury. He also conceded that he did not ask Employee any specific questions about his job duties. If a medical expert fails to ask questions about Claimant's job duties, then his opinion gets less credit. *Ball Sawyers v. Blue Springs School Dist.*, 286 S.W.3d 247 (Mo.App. 2009). For the reasons stated, I give Dr. Fevurly's opinions less weight.

The test of permanent total disability is whether, given the Claimant's situation and condition, he is able to compete in the open labor market. *Laturno v. Carnahan*, 740 S.W.2d 470, 472 (Mo. App. 1982). In *Brown v. Treasurer of Missouri*, 795 S.W.2d 479, 483 (Mo. App. 1990), the Court of Appeals held that:

> Total disability means the inability to return to any reasonable or normal employment, it does not require that the employee be completely inactive or inert. The central question is whether in the ordinary course of business, an employer would reasonably be expected to employ the Claimant in his present physical condition, reasonably expecting him to perform the work for which he is hired. *Id.*

Dr. Koprivica has placed severe restrictions on Employee's activities. Employee must be given the ad-lib ability to change positions, and the ad-lib ability to lie down and nap during the day. He is very limited to sitting, standing, and walking. He should do no squatting, crawling, kneeling, or climbing. He should avoid frequent or constant bending at the waist, pushing, pulling, twisting, or sustained or awkward postures of the low back. Although Dr. Koprivica reviewed additional scenarios wherein Employee was rendered permanently totally disabled, including the combination of his last accident with the May 1, 2000 accident injuries, he stated the injuries employee suffered to his back and right leg was due to the last accident alone was enough to render Employee permanently totally disabled.

Vocational expert Mike Dreiling testified by deposition for Employee. Mike Dreiling's deposition was taken on January 5, 2021, and was admitted as Exhibit 12. All objections thereto are hereby overruled. Mike Dreiling's report was admitted as Exhibit 13.

Mike Dreiling testified that Employee has no transferrable job skills, that he is unable to compete in the open labor market. Employee's education background is a vocational barrier to re-employment. Employee's work background is a significant vocational barrier to re-employment. He cannot work 8 hours a day, 40 hours a week, and 52 weeks a year. No employer in the ordinary course of business would reasonably be expected to employ Employee in his present physical condition.

Mike Dreiling further opined that:

> "This individual's vocational profile is represented by an individual who is 4[2]-years-old; is a high-school graduate; completed truck-driving training 15 years ago; has not completed any further, formal academic or vocational-training during the past 15 years; has no typing skills; has no computer skills; is not a candidate for further, formal training programs; has a work background consisting of more entry-level type

Issued by DIVISION OF WORKERS' COMPENSATION

Improved

Improved

Employee: Jason Collins

jobs allowing him to learn the job responsibilities through on-the-job learning; following truck-driving training in 2005, went to work as a concrete-delivery driver and did the job for the next 14 years, with ongoing pain issues from a prior work injury, which occurred in 2000; did utilize over-the-counter medications for ongoing pain issues over the years as a concrete-delivery driver; as a result of the April 2, 2018, work injury and eventual back surgery in April 2019, has been diagnosed with a failed laminectomy syndrome; has limited abilities to captively sit, stand or walk; has been medically found permanently totally disabled, as a result of his April 2, 2018, work injury; is continuing with ongoing use of oxycodone on a daily basis; ongoing use of muscle relaxers; ongoing use of medication for depression; ongoing use of an anti-inflammatory; ongoing use of sleep-aid medication at night; is laying down 50 percent of his walking hours because of ongoing pain issues; does have medical restrictions recommended for the pre-existing May 1, 2000 whole-body injury to include limitations on squatting, crawling or kneeling, as well as to have the allowance to get off his feet, as necessary, based upon that prior disability; and is currently pursuing long-term disability benefits...."

Mr. Dreiling found that, based on upon this individual's vocational profile, no employer in the ordinary course of business would reasonably be expected to employ this individual in his present condition. He further stated that Employee is vocationally, permanently totally disabled as a result of the April 2, 2018 injury in isolation. He also noted that based upon this individual's vocational profile, he is vocationally, permanently, totally disabled as a result of the April 2, 2018, work injury combined with the pre-existing May 1, 2000 whole-body injury. In his deposition Mr. Dreiling clarified twice that although he felt the last accident combined with the his pre-existing disabilities from the May 1, 2000 accident could render Employee permanently totally disabled, he felt the disabilities Employee suffered from the last accident alone were enough to render him permanently totally disabled.

Mr. Dreiling has been a vocation rehabilitation expert for 46 years and has testified in numerous states as an expert in vocational rehabilitation. He is board certified by the American Board of Vocational Experts.

Employer did not have a vocational expert. Mr. Dreiling's testimony and opinions are undisputed and uncontroverted. I find Mr. Dreiling to be a believable and credible witness.

Ergonomics Testimony

Ergonomist, Dennis Mitchell, testified for the employer. Mr. Mitchell testified there is insufficient evidence of vibration or jarring that would cause Employee to sustain a back injury based on his site inspections. Mr. Mitchell's opinions were based on two days of vibrational and jolt testing consisting of September 18, 2018 and January 28, 2021. The testing was set up on the seat of a truck similar to the one Employee operated.

There is no evidence that the truck was on a route that Employee ever took on either days of testing. The testing only considered two days out of Employee's 14 year employment with the employer, and neither of the days were days that Employee actually worked. In fact, the second testing was performed over 16 months after Employee had been terminated by the employer. Mr.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 18-111662

Employee: Jason Collins

Mitchell theorized in addition to his two days of testing, he considered one year of Employee's Time Analysis marked as Exhibit H. However, the Time Analysis fails to consider the remaining 13 years or 93% of Employee's employment with the employer as a truck driver. Employee testified the Time Analysis is not always correct. Even assuming the Time Analysis is 100% correct, Mr. Mitchell's opinions are based on seven percent of Employee's 14 year career with the employer as a truck driver. Seven percent of anything is not an accurate assessment or baseline that can be relied upon with reasonable certainty.

Mr. Mitchell testified the employer's truck did not exceed the vibration guidelines above the ISO and EU guidelines based on his two-day testing. However there was no evidence that vibrations at that level over long periods of time cannot cause physical injury to a driver such as the injuries Employee suffered. Further, as noted above, the limited amount of testing and data used is underwhelming and not convincing. There was no accounting for the obvious incidences of jarring caused by driving on rough terrain as testified about by Employee. Finally, Mr. Mitchell testified he is not a medical doctor. Therefore, he is not qualified to give an opinion on whether or not Employee's job duties caused his injuries. Neither Dr. Koprivica nor Dr. Fevurly were aware of Mr. Mitchell or his report according to the evidence. As such, I do not give any weight to Mr. Mitchell's testimony.

Employee is unable to compete for gainful employment in the open labor market. No prospective employer in the ordinary course of business would reasonably be expected to employ Employee in his present physical condition.

This is especially true because of Employee's inability to type, lack of transferable job skills, the need to change positions frequently between sitting and standing, the ad lib ability to lay down and nap during the day, and his other substantial restrictions. In his present physical condition, Employee cannot consistently and dependably compete in the competitive labor market. Although both Dr. Koprivica and Mr. Dreiling opined that the disability from the last accident combined with Employee's pre-existing disability from the May 1, 2000 accident could render Employee permanently totally disabled both experts confirmed that the last accident alone caused Employee to be permanently totally disabled.

I order and direct the employer to pay to Employee the sum of $923.01 each week from October 19, 2019, the day Dr. Koprivica placed him at MMI, and said payment shall continue for as long as Employee remains permanently totally disabled.

Issue VIII: Whether the Second Injury Fund is liable to Employee for any permanent total disability

I do not find the Second Injury Fund liable to Employee, since the last injury in isolation resulted in Employee's permanent total disability.

All compensation awarded shall be subject to a twenty-five percent (25%) lien in favor of attorney, Mav Mirfasihi, for reasonable and necessary legal services.

15

I certify that on 12-23-21, 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 $\qquad$


Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation