Joshua Sublett v. City of Columbia

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, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ).

The parties proceeded to a hearing and asked the ALJ to determine the sole issue of Second Injury Fund (Fund) liability. Mr. Sublett had previously settled his claim against the employer/insurer for 15% permanent partial disability (PPD) of the body as a whole (BAW) referable to the cervical spine.

The ALJ determined that the Fund was not liable for permanent total disability (PTD) benefits under § 287.220.3 RSMo.

Mr. Sublett filed an appeal to the Commission alleging the ALJ erred in denying PTD benefits from the Fund.

We reverse the award and decision of the ALJ.

The parties stipulated that Mr. Sublett sustained a compensable, work-related injury to his neck on February 28, 2018. As a result of the injury, Mr. Sublett eventually underwent surgery by Dr. Craig Meyer at C5-6 and C6-7. Mr. Sublett worked for a short time following the injury, but his coworkers performed his work. He was limited to filling out his timesheet and sorting tools. Mr. Sublett was not able to continue working at his employer, and he has not worked since May 2018. Mr. Sublett settled his claim against the employer for this injury for 15% PPD of the BAW referable to the cervical spine.

Mr. Sublett had previously sustained multiple work-related injuries: The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about April 16, 2014. Mr. Sublett dismissed his claim against the employer for this injury. The ALJ found Mr. Sublett sustained 20% PPD of the BAW referable to the cervical spine as a result of this injury.

The parties stipulated that Mr. Sublett sustained a compensable injury to his low back, within the course and scope of his employment, on or about July 10, 2015. Mr. Sublett settled his claim against the employer for this injury for 20% PPD of the BAW referable to the lumbar spine.

The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about October 29, 2015. Mr. Sublett settled his claim against the employer for this injury for 1.5\% PPD of the BAW referable to the cervical spine.

The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about January 24, 2017. Mr. Sublett settled his claim against the employer for this injury for 15 % PPD of the BAW referable to the cervical spine.

The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about March 28, 2017. Mr. Sublett settled his claim against the employer for this injury for 1.25 % PPD of the BAW referable to the cervical spine.

In addition to the above injuries, the report from Mr. Sublett's medical expert, Dr. David Volarich, describes a work-related injury to the right shoulder on May 22, 2012. Dr. Volarich provided a PPD rating of 15 % of the right shoulder.

Dr. Volarich performed an independent medical examination (IME) of Mr. Sublett on November 14, 2018. Dr. Volarich recommended Mr. Sublett undergo vocational assessment to determine whether he could return to the open labor market. He opined that if vocational assessment could not identify a job for which he was suited, then Mr. Sublett is PTD as a direct result of the work-related injuries of July 10, 2015, October 29, 2015, January 24, 2017, March 28, 2017, and February 28, 2018, in combination with each other as well as in combination with his preexisting medical conditions.

Mr. Sublett obtained a vocational rehabilitation evaluation report from Mr. Michael Dreiling dated March 19, 2019. Mr. Dreiling concluded Mr. Sublett was not able to compete in the open labor market based upon the combination of the work injuries of January 24, 2017, March 28, 2017, and February 28, 2018.

Dr. Jeff Lehmen also performed an IME of Mr. Sublett at his request on March 3, 2020. Dr. Lehmen opined Mr. Sublett's February 28, 2018 work injury combined with his work injuries of April 16, 2014, July 10, 2015, October 29, 2015, January 24, 2017, and March 28, 2017 left him "severely physically limited in his ability to perform any job duties whatsoever." However, Dr. Lehmen opined that Mr. Sublett's "temporary symptom increase associated with [the] October 29, 2015 injury event abated" and his cervical "symptoms returned to the baseline" resulting in no permanent disability in C6-7. Similarly, Dr. Lehmen opined that the March 28, 2017 injury caused "a temporary exacerbation of cervical symptoms" and resulted in no permanent disability.

Consistent with those opinions, Dr. Lehmen assigned no permanent work restrictions to the October 29, 2015 or March 28, 2017 injuries. Rather, Dr. Lehmen limited his assignment of permanent work restrictions to the April 16, 2014, July 10, 2015, January 24, 2017, and February 28, 2018 injuries. Dr. Lehmen then deferred to a vocational rehabilitation specialist to analyze those permanent work restrictions and determine whether Mr. Sublett was PTD.

Mr. Dreiling issued another vocational report dated August 22, 2021. Mr. Dreiling opined the restrictions recommended by Dr. Lehmen related to the April 16, 2014, July 10, 2015, January 24, 2017, and February 28, 2018 work injuries would render Mr. Sublett PTD without factoring in any further injuries or restrictions.

Mr. Sublett appeals the denial of PTD benefits against the Fund.

The legislature amended § 287.220 RSMo 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. Sublett's primary injury of February 28, 2018 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).

"Non-qualifying preexisting disabilities cannot be considered in determining whether a claimant satisfies the second condition of section 287.220.3." Id. at 567.

"Although section 287.220.3(2)(b) refers to the preexisting disability in the singular form 'when combined with the preexisting disability' - 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 preexisting disabilities." Parker, 622 S.W.3d at 182.

The Parker decision contains a footnote stating, "Although this Court held in Treasurer v. Witte, 414 S.W.3d 455, 463-64 (Mo. banc 2013), that claimants could not stack multiple disabilities to meet the threshold for fund liability, Witte predates the 2013 amendments and, therefore, no longer applies." Id. n.4.

Here, the ALJ found Mr. Sublett failed to meet his burden of proof that the work injury of February 28, 2018, combined "solely" with the qualifying preexisting injuries of April 16, 2014, July 10, 2015, and January 24, 2017, to result in PTD. We disagree and reverse that decision.

"Consistent with the definition of 'total disability,' we interpret § 287.190.6(2)'s mandate that permanent total disability 'be demonstrated and certified by a physician' to require that a physician show clearly and attest as being true the employee's medical condition and resulting work-related restrictions post injury. Once a physician does that, the requirement of $\S 287.190 .6(2)$ is satisfied, and it is within the Commission's expertise to determine whether the employee, with the medical conditions and physical limitations confirmed by the physician, is employable. See Patterson, 452 S.W.3d at 767 ('[U]ltimately, the employability of an individual is a technical matter within the Commission's expertise.')." Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund, 570 S.W.3d 110, 116 (Mo. App. 2018).

The parties stipulated that Mr. Sublett had previously sustained compensable, work-related injuries on April 16, 2014, July 10, 2015, October 29, 2015, January 24, 2017, and March 28, 2017. As such, each of these injuries qualify under § 287.220.3(2)(a)a.(ii) RSMo as being a direct result of a compensable injury as defined in § 287.020.

The ALJ found that the October 29, 2015 and March 28, 2017 neck injuries were non-qualifying disabilities, presumably because each settled for less than 50 weeks of PPD benefits. We disagree with this analysis. The Parker decision's directives to read the terms "injury" as "injuries" and "disability" as "disabilities" and that the Witte bar against stacking no longer applies lead us to a different conclusion. We would find that these injuries could be considered together with the April 16, 2014 and January 24, 2017 injuries, to determine the extent of cervical spine disability that preexisted the primary injury. However, we need not do so in this case. We find that the opinions of Dr. Lehman and Mr. Dreiling demonstrate that Mr. Sublett is PTD as a result of a combination of the primary injury of February 28, 2018 and the prior injuries of April 16, 2014, July 10, 2015, and January 24, 2017.

We find Mr. Sublett had disabilities of the cervical spine and lumbar spine prior to the primary injury on February 28, 2018. We find Mr. Sublett had a preexisting, medically documented disability at the lumbar spine equaling 80 weeks ( 20 % BAW) resulting from his July 10, 2015 injury. As noted above, this disability is a direct result of a compensable injury. We additionally find Mr. Sublett had a preexisting, medically documented disability at the cervical spine equaling 140 weeks ( 35 % BAW) resulting from his April 16, 2014 and January 24, 2017 injuries. As noted above, this disability is a direct result of compensable injuries.

Dr. Volarich rated a disability of the right shoulder below the statute's 50-week threshold. However, this opinion does not doom Mr. Sublett's claim. The PTD opinion contained in Dr. Volarich's report referenced a combination of the work-related injuries of July 10, 2015, October 29, 2015, January 24, 2017, March 28, 2017, and February 28, 2018, in combination with each other as well as in combination with his preexisting medical conditions. Dr. Volarich provided no permanent restrictions regarding the right shoulder. Dr. Lehman did not provide permanent restrictions regarding the right shoulder either. Mr. Dreiling's PTD opinion was based on the permanent restrictions from Dr. Volarich and Dr. Lehman, neither of which included the shoulder. As such, the right shoulder need not be considered in our PTD determination. "The existence of non-qualifying disabilities does not count against (or for) the claimant[.]" Id.

We find Dr. Lehmen's and Mr. Dreiling's opinions to be credible and persuasive in this case. Dr. Lehmen assigned permanent work restrictions to injuries that occurred on April 16, 2014, July 10, 2015, January 24, 2017, and February 28, 2018. Dr. Lehmen attributed none of the permanent work restrictions to the October 29, 2015 injury, the March 28, 2017 injury, the right shoulder, or any other non-qualifying disabilities. Considering those permanent work restrictions, Mr. Dreiling opined that Mr. Sublett is PTD as a result of a combination of the primary cervical spine injury combined with the qualifying disabilities of the cervical and lumbar spine, without consideration of the right shoulder or any other non-qualifying disabilities.

We find Mr. Sublett had qualifying preexisting disabilities, which were medically documented, equaled 80 weeks at the lumbar spine and 140 weeks at the cervical spine, and met the criteria under § 287.220.3(2)(a)(ii) RSMo. We further find Mr. Sublett sustained a subsequent compensable work-related injury to the cervical spine on February 28, 2018, and that this injury combined with the preexisting disabilities of the lumbar spine and cervical spine resulted in Mr. Sublett being PTD. Accordingly, we find Mr. Sublett has met his burden of proof and established a compensable PTD claim against the Fund.

We reverse the award of the administrative law judge. We conclude Mr. Sublett is entitled to permanent total disability benefits from the Second Injury Fund.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning on May 1, 2018, the date stipulated by the parties, at the stipulated weekly permanent total disability rate of $\ 815.00. The weekly payments shall continue for Mr. Sublett's lifetime, or until modified by law.

This award is subject to a lien in favor of Bradley Medcalf, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

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

The award and decision of Administrative Law Judge Melodie A. Powell is attached solely for reference.

-6-

**Injury No.:** 18-022177

Given at Jefferson City, State of Missouri, this ______ 3rd ______ day of February 2023.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Rocher J. Campbell, Chairman**

**Shalonn K. Curls**

Shalonn K. Curls, Member

**SEPARATE OPINION FILED**

Kathryn Swan, Member

Attest:

**Karla S. Hogg**

Secretary

I have reviewed the evidence and considered the whole record. Based on my review of the evidence, as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to reverse the administrative law judge's decision.

Employee had three preexisting disabilities that did not exceed 50 weeks of PPD compensation:

- May 22, 2012: 15\% PPD, referable to the right shoulder ( 34.8 weeks of PPD at the 232 week level);

- October 29, 2015 injury: 1.5\% PPD BAW, referable to the neck (6 weeks of PPD at the 400 week level); and

- March 28, 2017 injury: 1.25\% PPD BAW, referable to the neck (5 weeks of PPD at the 400 week level).

The Supreme court and the lower appellate courts have not ruled on whether cumulative disabilities can be stacked in order to find the Fund liable under § 287.220.3. Dr. Volarich considered three of employee's non-qualifying preexisting disabilities in his opinion that employee was permanently and totally disabled.

Dr. Lehmen considered employee's October 29, 2015 and March 28, 2017 injuries in his opinions, that employee was "severely physically limited" in his ability to perform any job duties, and that each of the work injuries preceding his February 28, 2018 primary injury directly and significantly aggravated or accelerated his 2018 primary injury. ${ }^{1}

The intent of the legislature's 2013 amendments to \S 287.220 .3$ was to limit the Fund's liability in workers' compensation cases. Second Injury Fund v. Parker. ${ }^{2}$ I believe that the Commission majority's decision, in this case, seeks to expand the Fund's liability and goes against the legislature's intent.

For these reasons, I respectfully dissent from the majority's order in this matter.

[^0][^1]

[^0]: ${ }^{1} See Transcript at 1605.

{ }^{2} 622$ S.W.3d 178, 181 (Mo. banc Apr. 20, 2021)(Citing to Cosby v. Treasurer of State, 579 S.W.3d 202, 205 (Mo. banc 2019).

[^1]: ${ }^{1} See Transcript at 1605 .

{ }^{2} 622$ S.W.3d 178, 181 (Mo. banc Apr. 20, 2021)(Citing to Cosby v. Treasurer of State, 579 S.W.3d 202, 205 (Mo.

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

JANUARY 10, 2022

18-022177

Scan Copy

@Employee . . . . JOSHUA SUBLETT 17000 OAK GROVE SCHOOL RD STURGEON, MO 65284-0000

*Asst Atty General: ATTY GENERAL ERIC SCHMITT 13318620 7 PO BOX 899 SUPREME COURT BLDG JEFFERSON CITY, MO 65102

@Employee Attorney: BRADLEY MEDCALF 5754 PARKSIDE VILLAGE CT PO BOX 368 OSAGE BEACH, MO 65065

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS

W0-142 (05-21) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: Joshua Sublett

Injury No. 18-022177

Dependents: N/A

Before the

Employer: City of Columbia (Settled)

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: Self c/o Brentwood Services Administration (settled)

Jefferson City, Missouri

Hearing Date: September 30, 2021

1. Are any benefits awarded herein? No
2. Was there an injury compensable under Chapter 287? Yes
3. Was there an accident under the Law? Yes
4. Date of accident: February 28, 2018
5. State location where accident occurred: Columbia, Boone County, Missouri
6. Was above employee in employ of above employer at time of the accident? Yes
7. Did employer receive proper notice? Yes
8. Did the accident arise out of and in the course of 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 the accident occurred: Employee was splicing cable in a manhole when he pushed hard and alleges injury to neck and low back
12. Did the accident cause death? N/A Date of death?
13. Part(s) of body injured by accident: Neck
14. Nature and extent of any permanent disability: 15 % BAW referable to cervical spine, settlement with Employer on June 6, 2020
15. Compensation paid-to-date for temporary disability: $\$ 874.83,11 / 7$ weeks
16. Value necessary medical aid paid-to-date by employer/insurer? $\ 1,050.30

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,222.50
3. Weekly compensation rate: $\ 815.00 for temporary total and permanent total disability benefits
4. Method wages computation: Stipulation of parties

1. Second Injury Fund Liability: None
2. The following claims are voluntarily dismissed by Employee as to the Second Injury Fund, by separate order: Injury No. 14-033650; Injury No. 15-052745; Injury No. 15-107193; Injury No. 17-005051; and, Injury No. 17-020838.

Employee: Joshua Sublett

Injury No: 18-022177

Employee: Joshua Sublett

Injury No: 18-022177

Dependents: N/A

Employer: City of Columbia (settled)

Additional Party: Second Injury Fund

Insurer: Self c/o Brentwood Services Administration (settled)

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MAP/bh

On September 30, 2021, a final award hearing was conducted in this matter in Columbia, Missouri. Employee, Joshua Sublett, appeared personally and by counsel, Bradley Medcalf. The Second Injury Fund appeared by Assistant Attorney General Deidre Wood. Proposed awards were received and after additional medical records were received by agreement, the record was closed on October 30, 2021.

The parties stipulated as follows:

1. That on or about February 28, 2018, Employee was in the employ of the City of Columbia.
2. That both the Employee and Employer were operating under and subject to the terms and provisions of the Missouri Workers' Compensation Act.
3. That Employer's liability was self-insured c/o Brentwood Services Administration.
4. That Employer had notice of the injury and a claim for compensation was timely filed.
5. That venue is proper in Columbia, Boone County, Missouri.
6. That temporary total disability benefits were paid in the amount of $\ 874.83, representing $11 / 7 weeks.
7. That medical aid was provided in the amount of \ 1,050.30
8. That if benefits are awarded, said benefits are to begin as of May 1, 2018.
9. That the average weekly wage is $\ 1,222.50, resulting in a compensation rate for permanent total disability benefits of $\ 815.00.
10. That Employee sustained a compensable accident or injury to his neck, within the course and scope of his employment, on or about April 16, 2014.
11. That Employee sustained a compensable accident or injury to his low back, within the course and scope of his employment, on or about July 10, 2015.
12. That Employee sustained a compensable accident or injury to his neck, within the course and scope of his employment, on or about October 29, 2015.
13. That Employee sustained a compensable accident or injury to his neck, within the course and scope of his employment, on or about January 24, 2017.
14. That Employee sustained a compensable accident or injury to his neck, within the course and scope of his employment, on or about March 28, 2017.

1. That Employee sustained a compensable accident or injury to his neck, within the course and scope of his employment, on February 28, 2018.
2. That the requested attorney's fee is 25 % of any benefits awarded.

1. Liability of the Second Injury Fund for permanent total disability benefits.

The following exhibits were offered and admitted into evidence:

1. Boone Hospital Records
2. The Work Center Records
3. Signature Medical Group Records
4. Columbia Orthopaedic Group Records
5. Advanced Radiology Records
6. Dr. Ashley Milham Records
7. Dr. Ashley Milham Additional Records
8. Premier Care Records
9. Dr. Robert Herting Records
10. Columbia Orthopaedic Group Additional Records
11. Missouri Workers' Compensation File (as of May 12, 2017)
12. Joshua Sublett Employee File
13. Columbia Orthopaedic Group Additional Records
14. Convenient Care Boone Medical Group Records
15. Advanced Radiology Records
16. Dr. Ashley Milham Additional Records
17. Report of Dr. David Volarich
18. LAGERS Favorable Duty Disability Determination (admitted over objection)
19. Report of Michael Dreiling
20. Report of Dr. Jeffrey Lehmen
21. Addendum Report of Michael Dreiling
22. Stipulations for Compromise Settlement with Employer
23. Deposition of Dr. David Volarich
24. Deposition of Michael Dreiling (October 23, 2019)
25. Deposition of Michael Dreiling (September 14, 2021)
26. Columbia Orthopaedic Group Additional Records

SECOND INJURY FUND EXHIBITS

i. Joshua Sublett Deposition of November 22, 2019

All exhibits appear as received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned administrative law judge.

Employee testified at the hearing of this matter and by way of deposition. (Exh. i). He is 42 years old, married, and lives in Sturgeon, Missouri. He is a high school graduate. Employee was employed by the City of Columbia, Employer, from 2006 through May 2018, when he retired. From 2006 to 2008, he was a meter reader. In 2008, he began the apprentice program to become a journeyman lineman. He served as a journeyman lineman for the city from 2012 until 2018. Prior to working for Employer, Employee was a machine operator for Columbia Curb and Gutter. Employee described his job duties as physical, manual labor.

On February 28, 2018, Employee testified he was in a manhole, splicing cable, when he pushed and hurt his low back and neck. Employee stated the majority of his treatment for this injury was with Dr. Craig Meyer of the Columbia Orthopaedic Group. He ultimately underwent surgery at C5-6 and C6-7.

Employee testified to several prior workers' compensation injuries. In April 2014, he was pulling wire. He had to lift a manhole cover and felt a pop in his neck. He did not pursue treatment through workers' compensation and did not receive any settlement for this injury. His treatment was with Dr. Meyer and consisted of a two level fusion at C4-5 and C5-6. Employee testified his symptoms did not completely resolve after this injury. However, he returned to work at the same job.

On July 10, 2015, Employee testified he was lifting a fiberglass lid when he had injury to his low back. While receiving physical therapy for his low back, he believed he then strained his neck. Dr. Meyer ultimately did surgery on the low back, fusing the sacroiliac joint. Employee returned to work after this injury.

Employee testified to a work-related injury occurring on October 29, 2015, to his neck. He had three injections and his neck returned to baseline. Employee admitted he had no meaningful disability as a result of this injury. He returned to work.

On January 24, 2017, Employee was in a bucket, pulling wire on a power pole. He had his feet up on the bucket for leverage, jerked the wire and hurt his neck and low back. He testified he had new symptoms in his neck. Dr. Meyer ultimately performed surgery at the level above the prior fusion and also removed the hardware from the prior fusion. Employee stated that surgery helped but he still had symptoms. He returned to work.

On March 28, 2017, Employee was squeezing pliers when he had an increase in his neck pain. He thought it was an aggravation of the January 24, 2017, injury. His neck returned to baseline. Employee returned to work after this incident.

Employee testified that he thinks all of his injuries cause him to be unable to work. His current symptoms include sharp pains from his neck down the right arm to his middle and ring fingers with numbness from his wrist to the inside of his elbow. He testified the pain is constant and ranges from a 4 to an 8 or 9 on a 10 -level pain scale. Lifting makes his symptoms worse and he is constantly dropping things like his phone or a glass of water. Employee has similar

symptoms in his left arm but they are not quite as bad. The pain level in his left arm ranges from a 2 to a 7 or 8 . He has weakness in the left arm and drops things.

Employee described a crushing, stabbing pain in his neck that is constant. The pain ranges from a 4 to a 10 on the 10 -level pain scale. The neck pain is worse when he does anything with his arms. Reading a book or looking at his phone increases the pain. He testified his neck is weak and his range of motion is limited. He has headaches which he associates with the neck pain and sometimes has to lay down in a dark room for several hours. He has an inversion table which he uses for temporary relief of the pain.

Employee testified he has an aching, stabbing pain in the central part of his low back. He also has shooting pain down his legs, right greater than left, to his heels. The back pain ranges from a 2 to 10 , with the average pain level being 4 to 5 . Employee testified he uses his inversion table to help relieve his back pain.

Employee testified as to ongoing symptoms in his lower extremities. On the right side, he has sciatic pain from his buttock to his heel, along with numbness in his calf. The pain is constant and ranges from a 2 to a 10 . Extra weight makes the pain worse and the pain affects his sleep. Employee testified he takes a narcotic daily which relieves a little of the leg pain. On the left, Employee has a shooting pain through his leg but it is not nearly as bad as the right leg. The pain level ranges from a 1 to a 7 . Any extra strain increases the pain in the left leg.

Employee testified as to hobbies. He likes to go deer hunting. Since the C6-7 fusion, he has been able to hunt but now uses a cross-bow and has decreased the number of times he hunts. He believes he only hunts a quarter of the time he used to, after the 2018 injury. After the sacroiliac fusion, he could not walk as far or climb so he would drive to the deer stand. Employee also likes to go fishing. After his injuries in 2014 and 2015, his fishing activities did not decrease. After the injury in January 2017, Employee only fished about half as much as he did prior to that date. He also started having people help him with the boat. After the injury of 2018, he has reduced how much he fishes. He testified at the hearing that he had only been fishing three times this year and had people help him with the boat. He stated he needs help with the boat due to his neck and back conditions. Employee testified he lives on six acres and that it takes him more time now to do all the mowing. His daughter helps him with that chore.

On cross-examination, Employee admitted he returned to work full time and full duty after each of the work-related injuries and that it was not until after the injury of February 28, 2018, that he was no longer able to work. He did return to work for a short time after the injury of February 28, 2018, but he had co-workers do everything. He only did the time sheets and organized the tools. He testified he lies down mid-morning and mid-afternoon since the accident of February 28, 2018, although he admitted that prior to 2018, he would have to lie down because of headaches.

For the work-related injury of April 16, 2014, Employee sought treatment on his own with Dr. Craig Meyer. On April 22, 2014, Employee presented with headaches, numbness,

**Employee:** Joshua Sublett

**Injury No.:** 18-022177

dizziness, and radicular symptoms in his right arm. An MRI revealed a protrusion and bilateral neuroforaminal stenosis at C5-6. Dr. Meyer performed two injections which provided temporary relief. On August 11, 2014, Dr. Meyer performed an anterior cervical discectomy with fusion at C4-6. Dr. Meyer, upon Employee's request, released him to full duty on September 30, 2014. Employee followed up with Dr. Meyer on December 23, 2014. The notes indicate complete resolution of pre-operative pain, that the hardware was in good position, and that there appeared to be a solid fusion at both levels.

After reporting the work injury of July 10, 2015, Employee was sent for treatment with Dr. Herting on July 13, 2015. He reported low back pain with pain shooting into both buttocks. There was no pain or numbness radiating down his legs or into his feet. On physical examination, Dr. Herting noted tenderness at L2 through L5, pain in the sciatic notch on the left, and bilateral sacroiliac (SI) joint pain. Dr. Herting prescribed an anti-inflammatory, a steroid, and a muscle relaxer. He placed Employee on work restrictions and recommended home exercises.

Employee then returned to Dr. Meyer on July 15, 2015, reporting he was doing well until the work injury of July 10, 2015. He gave a history that the physical therapy ordered by Dr. Herting resulted in the return of symptoms in his neck and upper extremities. He reported the numbness and tingling in the upper extremities returned to what it was prior to the neck fusion.

Employee returned to Dr. Herting for his low back on July 20, 2015. He reported his back pain was much better. On examination, Dr. Herting noted pain in the bilateral SI joints. Dr. Herting continued the medications and physical therapy but lessened the work restrictions. Employee saw Dr. Herting in follow up on August 3, 2015, reporting a spike in his symptoms after increasing his physical demand level at work. Dr. Herting ordered an MRI which revealed mild bilateral foraminal narrowing at L4-5, and moderate bilateral neural foraminal narrowing at L5-S1, with encroachment on the exiting nerve root. At a follow-up visit on August 11, 2015, Dr. Herting recommended an injection at L5-S1. The epidural steroid injection gave Employee two to three days of relief. On August 25, 2015, Dr. Herting referred Employee to an orthopedic spine specialist.

Employee then began treating with Dr. Meyer on September 17, 2015. Treatment was conservative, consisting of some additional injections and continuing work restrictions. On November 10, 2015, Dr. Meyer released Employee to return to work without restrictions, noting that the injection of October 14, 2015, was continuing to provide relief. Dr. Meyer released Employee at maximum medical improvement (MMI) on January 15, 2016, without permanent restriction. He indicated no future medical was needed and further indicated Employee did not sustain any permanent partial disability as a result of the low back injury.

On January 29, 2016, Employee saw Dr. Meyer to discuss neck pain and right arm symptoms which occurred three months prior when Employee was lifting something heavy. Dr.

**Employee:** Joshua Sublett

**Injury No.:** 18-022177

Meyer diagnosed recurrent neck pain with right arm radiculopathy and ordered an MRI. On February 4, 2016, Dr. Meyer interpreted the MRI to reveal a right-sided disc herniation at C6-7 and ordered an injection. Employee underwent a series of three injections, with the last one being administered on August 11, 2016.

Employer sent Employee to Dr. Herting for the injury to his neck and low back that occurred on January 24, 2017. On January 25, 2017, Dr. Herting diagnosed low back pain and neck pain with radicular symptoms. He prescribed a steroid and a muscle relaxer, recommended physical therapy, placed restrictions on Employee, and recommended referral to an orthopedic spine specialist.

Employee began authorized treatment with Dr. Crane on February 1, 2017. For the neck, Employee's complaints included radicular symptoms into the upper extremities. Dr. Crane prescribed medication, light duty, and a home exercise program. For the low back, Dr. Crane noted Employee experienced radicular symptoms and cramping down his right leg. He prescribed medication, work restrictions, and physical therapy. On February 22, 2017, Dr. Crane ordered MRIs of the low back and neck. Dr. Crane interpreted the low back MRI to, overall, be normal. He interpreted the cervical MRI to be relatively normal, accounting for the hardware at C4-6. Dr. Crane ordered three weeks of work hardening, followed by a Functional Capacity Evaluation (FCE). In follow-up on March 27, 2017, Employee reported work hardening and the FCE made his symptoms worse. Dr. Crane noted Employee gave full effort at physical therapy but felt there were some subjective pain inconsistencies at physical therapy and during the FCE. Dr. Crane released Employee without restrictions for the neck or low back.

After reporting another work accident, Employee was directed to Dr. Crane on April 3, 2017. With regard to the neck, Employee reported intense radicular symptoms into the upper extremities. For the low back, Employee reported numbness and weakness into the right foot. Dr. Crane was of the opinion that Employee's symptoms were related to the January 24, 2017, injury. He released Employee at MMI without restrictions.

Employee then went to Dr. Meyer on his own, on May 11, 2017. Dr. Meyer believed there was a new injury to the neck. After reviewing the MRI, Dr. Meyer recommended a fusion at C6-7 and the removal of the hardware from the prior fusion. Surgery was performed on June 16, 2017. Employee followed up with Dr. Meyer on July 11, 2017, and August 22, 2017, regarding his neck. On August 22, 2017, Dr. Meyer recorded ongoing low back complaints, with radiation to the right leg and foot. After an MRI of the low back, Dr. Meyer saw Employee on September 12, 2017, noting that Employee's symptoms related to the right SI joint. He provided an injection. In follow-up on September 21, 2017, Dr. Meyer noted Employee had had relief with the SI injection and recommended a right SI joint fusion. Surgery occurred on November 22, 2017. Employee followed up with Dr. Meyer on January 23, 2018, and May 22, 2018. On May 22, 2018, Employee reported significant improvement in his low back symptoms.

WC-32-R1 (6-81)

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After reporting the accident of February 28, 2018, Employee was sent to Nurse Practitioner Revelle. Employee reported ongoing increased neck pain with radicular symptoms. Nurse Practitioner Revelle recommended referral to a spine specialist. Employer chose to direct Employee to Dr. Michael Szewczyk, an occupational medicine physician, on April 14, 2018. Dr. Szewczyk noted neck and low back pain. He opined that Employee did not sustain a work injury on February 28, 2018. Rather, he thought this was a mild exacerbation of Employee's symptoms and released Employee at MMI.

Employee then sought additional treatment on his own with Dr. Meyer. At the appointment of May 22, 2018, Employee reported ongoing neck pain and headaches. His next appointment was November 27, 2018, at which time Dr. Meyer ordered a cervical MRI. When reviewing the results on November 30, 2018, Dr. Meyer noted issues at C3-4 and recommended physical therapy. At the next appointment on March 19, 2019, Employee reported increased neck pain and radicular symptoms into the right upper extremity. An EMG was performed on April 3, 2019, and was read as being suggestive of a right C6-7 radiculopathy. After discussion with Dr. Meyer, Employee elected to proceed with additional surgery. On April 29, 2019, Dr. Meyer performed a right-sided laminectomy and foraminotomy at C5-6 and C6-7. Employee experienced some relief but continued with ongoing symptoms and pain.

Employee was seen by Dr. David Volarich for an independent medical examination on November 14, 2018. Dr. Volarich authored a report and provided deposition testimony.

It was Dr. Volarich's opinion that the work injury of July 10, 2015, was the prevailing factor in causing an injury to Employee's low back which resulted in the SI joint fusion. He assigned a permanent partial disability rating of 35 % to the body as a whole.

It was Dr. Volarich's opinion that the work injury of October 29, 2015, was the prevailing factor in causing an injury to Employee's neck, a C6-7 protrusion, for which conservative treatment was provided. He assigned a permanent partial disability rating of 15 % to the body as a whole.

It was Dr. Volarich's opinion that the work injury of January 24, 2017, was the prevailing factor in causing additional injury to Employee's neck, including severe C6-7 radiculopathy that required the C6-7 fusion. He also opined that the work injury of January 24, 2017, was the prevailing factor in causing an aggravation of Employee's right SI joint dysfunction. He assigned a permanent partial disability rating of 35 % to the body as a whole for the neck, and 10 % to the body as a whole for the low back.

It was Dr. Volarich's opinion that the work injury of March 28, 2017, was the prevailing factor in causing an aggravation of Employee's cervical syndrome, for which conservative

treatment was provided. He assigned a permanent partial disability rating of 10 % to the body as a whole.

It was Dr. Volarich's opinion that the work injury of February 28, 2018, was the prevailing factor in causing a severe cervical strain at C2-4, and aggravation of the prior cervical fusions. He noted conservative treatment was provided. Dr. Volarich assigned a permanent partial disability rating of 10 % to the body as a whole.

While not identifying any work injury occurring on April 16, 2014, in his report, Dr. Volarich testified as to the facts surrounding that injury and his opinion that it was work-related. He noted Employee had a cervical fusion as a result of this injury and assigned a permanent partial disability rating of 25 % to the body as a whole.

Dr. Volarich recommended a vocational assessment. He also opined that, if there was no vocational assessment, Employee was permanently and totally disabled as a direct result of the work injuries of July 10, 2015, October 29, 2015, January 24, 2017, March 28, 2017, and February 28, 2018, in combination with each other as well as in combination with Employee's other pre-existing medical conditions. Per his testimony and report, those included the April 16, 2014, neck injury and a 2012 shoulder injury.

Dr. Jeff Lehmen also performed an independent medical evaluation on Employee's behalf on March 3, 2020. His report was admitted into evidence but no deposition testimony was taken.

It was Dr. Lehmen's opinion that the work injury of April 16, 2014, was the prevailing factor for Employee's neck condition, resulting in a cervical fusion at C4-5 and C5-6. He assigned a permanent partial disability rating of 25 % to the body as a whole.

It was Dr. Lehmen's opinion that the work injury of July 10, 2015, was the prevailing factor in causing injury to Employee's low back, resulting in the SI joint fusion. He also opined that the work injury of July 10, 2015, was the prevailing factor in causing additional injury to Employee's cervical spine at the C6-7 level. He assigned a permanent partial disability of 30 % to the body as a whole for the low back, and 10 % to the body as a whole for the neck.

It was Dr. Lehmen's opinion that the work injury of October 29, 2015, was the prevailing factor in causing a temporary exacerbation of Employee's cervical symptoms. He assigned a 0\% permanent partial disability rating.

It was Dr. Lehmen's opinion that the work injury of January 24, 2017, was the prevailing factor in causing additional injury to Employee's cervical spine resulting in surgery at the C6-7 level. He also opined that the work injury of January 24, 2017, was the prevailing factor in causing additional injury to Employee's low back. He assigned a permanent partial disability rating of 30 % to the body as a whole for the neck, and 10 % to the body as a whole for the low back.

It was Dr. Lehmen's opinion that the work injury of March 28, 2017, was the prevailing factor for the temporary exacerbation of Employee's neck symptoms. He assigned a 0 % permanent partial disability rating.

It was Dr. Lehmen's opinion that the work injury of February 28, 2018, was the prevailing factor in causing a severe aggravation of Employee's neck condition, resulting in the laminectomy and foraminotomy surgeries at C5-6 and C6-7. He assigned a permanent partial disability rating of 35 % to the body as a whole.

Dr. Lehmen opined that Employee's February 28, 2018, injury, in combination with the injuries of March 28, 2017, January 24, 2017, October 29, 2015, July 10, 2015, and April 16, 2014, left Employee "severely physically limited" in his ability to perform any job duties whatsoever. He also opined that each of the work injuries preceding the work injury of February 28, 2018, directly and significantly aggravated or accelerated the February 28, 2018, work injury. Dr. Lehmen provided restrictions relating to the April 16, 2014, July 10, 2015, January 24, 2017, and February 28, 2018 work injuries. He stated he would defer to a vocational rehabilitation specialist to analyze those restrictions to determine if Employee is permanently and totally disabled under Missouri workers' compensation law.

Michael Dreiling is a vocational rehabilitation expert. He authored two reports and provided two depositions in this matter, on behalf of Employee.

Mr. Dreiling's first report is dated March 29, 2019. He also testified by deposition regarding that report. He opined that, based on Dr. Volarich's restrictions, Employee would not have the ability to return to any of his past relevant work and that he was essentially and realistically unemployable. (Exh. 19; Exh. 24). He further opined that Employee would not have the capacity to successfully compete for work in the open labor market based upon a combination of his work injuries of January 24, 2017, March 28, 2017, and February 28, 2018. In his deposition, Mr. Dreiling testified that he was considering all of the permanent industrial disabilities, permanent restrictions, and permanent limitations outlined by Dr. Volarich in Dr. Volarich's deposition, including those not necessarily related to the injuries of January 24, 2017, March 28, 2017, and February 28, 2018. Mr. Dreiling's first opinion is based solely on the restrictions of Dr. Volarich.

Mr. Dreiling's second report is dated August 22, 2021. (Exh. 21). He also testified by deposition regarding his opinions in this second report, which he termed an "addendum". (Exh. 25). He had received and reviewed a report from Dr. Lehmen. He testified that none of the work injuries, on their own, would have eliminated Employee from working in the open labor market. Mr. Dreiling was referring to the work injuries of April 16, 2014, July 10, 2015, October 29, 2015, January 24, 2017, March 28, 2017, and February 28, 2018. He opined that when considering the effects of the February 28, 2018, injury in combination with the effects of the April 16, 2014, July 10, 2015, and January 24, 2017, work injuries, Employee is eliminated from competing in the open labor market. His opinion was based on the restrictions imposed by Dr. Lehmen for the injuries of April 16, 2014, July 10, 2015, January 24, 2017, and February 28,

1. He did not consider the injuries of October 29, 2015, or March 28, 2017, because he did not have any specific restrictions for those two dates.

The current injury, 18-022177, was settled with the Employer/Insurer for 15\% BAW, referable to the neck.

Employee dismissed Injury No. 14-033650. He testified that there was no settlement as he was told to use his own insurance. Based on the Division's records, the claim was not filed until November 13, 2019. An Answer filed by the Second Injury Fund alleged the statute of limitations had run. Employee filed the Voluntary Dismissal on September 23, 2021, and the Order of Dismissal was issued on September 30, 2021.

The employee in a workers' compensation case has the burden to prove all the essential elements of the claim. Jefferson City Country Club v. Pace, 500 S.W.3d 305, 313 (Mo.App., W.D. 2016). The employee does not have to establish the elements of the case on the basis of absolute certainty; it is sufficient if the employee shows them by reasonable probability. Moreland v. Eagle Picher Techs., LLC, 362 S.W.3d 491, 504 (Mo.App., S.D. 2012). Probable means founded on reason and experience, which inclines the mind to believe but leaves room for doubt. Id. (citations omitted). All provisions of Chapter 287, RSMo, shall be strictly construed, and the evidence is to be "weighed impartially without giving any party the benefit of the doubt." Miller v. Mo. Highway Transp. Comm'n, 287 S.W.3d 671, 673 (Mo.banc 2009); §287.800 RSMo.

Employee seeks permanent total disability (PTD) benefits from the SIF in this post-2014 claim.

Section 287.220.3(2), RSMo, states in pertinent part:

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:

The analysis involves two requirements. First, Employee must show a medically documented pre-existing disability that reaches the threshold of 50 weeks of PPD. Second, Employee must show that the pre-existing disability meets one of the qualifying types of disabilities listed in subparts (i) - (iv) of $\S 287.220 .3(2)$ (a)a. RSMo. Once the two qualifying conditions are met, Employee must then show that he sustained a subsequent compensable workrelated injury that, when combined with the qualifying pre-existing disability, results in PTD. Treasurer of State v. Parker, 622 S.W.3d 178 (Mo. banc 2021); Clinkenbeard v. Treasurer of State, SD36942 (12/21/21). Parker also holds that all pre-existing disabilities which qualify can be combined with the primary injury to cause permanent total disability. The Missouri Supreme Court remanded Parker to the Labor and Industrial Relations Commission (the Commission) to find the facts and determine if the employee was entitled to benefits under $\S 287.220 .3(2)$ RSMo. Upon remand, the Commission concluded that, under the Missouri Supreme Court's decision in Parker, the employee's claim for permanent total disability against the SIF failed because he did not show that the PTD resulted solely from the primary injury combined with a pre-existing qualifying disability. The expert evidence indicated employee was PTD as a result of all preexisting conditions, some of which did not qualify under $\S 287.220 .3(2)$ RSMo. See, Parker v. Asplund Tree Expert Co./Liberty Mutual Ins. Co. (settled) and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 14-042039 (LIRC August 10, 2021).

Employee has five pre-existing work-related injuries. The parties stipulated that all five were compensable and arose out of and in the course of employment. All are medically documented. Based on the medical records, Employee's testimony, and the settlement stipulations, I find Employee sustained the following permanent partial disability regarding his pre-existing injuries:

Even though Employee sought treatment on his own for the injury of April 16, 2014, and dismissed the claim presumably because it was time-barred, he is not precluded from being assessed permanent partial disability. The injury is medically documented. The parties stipulated that the injury of April 16, 2014, was compensable and arose out of and in the course of employment. Dr. Volarich assessed 25% PPD to the body as a whole, referable to the neck, as pre-dating the work injury of July 10, 2015. In his deposition, Dr. Volarich opined that the injury of April 16, 2014, was work-related. Dr. Lehmen assigned 25% PPD to the body as a whole, referable to the neck, as a result of the work injury of April 16, 2014. Employee reported to Dr. Volarich that, after his cervical fusion in 2014, his symptoms improved considerably and that all of his arm pain and paresthesias resolved. He told Dr. Volarich he thought he may have had some stiffness and lost motion in the neck, however, he returned to work full duty as a lineman. Employee testified he went deer hunting "quite a bit" after the 2014 injury to his neck. He testified he could go fishing, without any limitations, after the injury of April 16, 2014. (Exh. 17). Based on the doctors' opinions and Employee's testimony, I find Employee sustained 20% PPD to the body as a whole, referable to the cervical spine, as a result of the work injury of April 16, 2014.

Employee has met the first requirement of §287.220.3(2) RSMo. He has three medically documented pre-existing disabilities which meet the threshold of 50 weeks of PPD:

All three of these pre-existing injuries qualify under §287.220.3(2)(a)a.(ii) RSMo, as they are a direct result of a compensable injury as defined in §287.020 RSMo.

Employee has also shown and the parties stipulated that he sustained a subsequent compensable work-related injury on February 28, 2018. That case was settled with the Employer for 15% PPD to the body as a whole, referable to the cervical spine.

The final analysis is whether Employee's work-related injury of February 28, 2018, combines solely with his three pre-existing qualifying injuries to result in permanent total disability.

Under the holdings in *Clinkenbeard* and the Commission's remand decision in *Parker*, expert opinions need to be based on whether the work injury combines solely with the qualifying pre-existing disabilities to cause permanent total disability. In both cases, the medical and vocational experts offered opinions on permanent total disability that included pre-existing disabilities which did not qualify under §287.220.3(2)(a)a.(i)-(iv) RSMo.

Here, Dr. Volarich, in his report, gave an opinion that, if there were no vocational assessment, Employee was permanently and totally disabled based on the work injuries of February 28, 2018, March 28, 2017, January 24, 2017, October 29, 2015, and July 10, 2015. He stated that these injuries "in combination with each other as well as in combination with his [Employee's] pre-existing medical conditions", which Dr. Volarich described as a 2014 cervical injury and a 2012 shoulder injury, result in permanent total disability (Exh. 17). In his deposition, Dr. Volarich did not testify as to his opinion on permanent total disability. He indicated he did not have a vocational assessment to confirm whether Employee could or could not work and deferred any permanent total disability assessment to a vocational expert. (Exh. 23, pp. 105-106).

Based on the opinion Dr. Volarich expressed in his report, he included three pre-existing disabilities which did not qualify under $\S 287.220 .3(2)$ (a)a.(i)-(iv) RSMo. Those were the work injuries of October 29, 2015, March 28, 2017, and the shoulder injury of 2012. Under Clinkenbeard and the Commission's remand decision in Parker, Employee has not met his burden of proof with Dr. Volarich's opinion.

Dr. Lehmen opined that, as a result of the injury of February 28, 2018, in combination with the injuries of April 16, 2014, July 10, 2015, October 29, 2015, January 24, 2017, and March 28, 2017, Employee is left "severely physically limited in his ability to perform any job duties whatsoever". Dr. Lehmen indicated he would defer to a vocational specialist based on the restrictions he outlined for the three qualifying pre-existing disabilities. To the extent Dr. Lehmen's opinion can be interpreted to mean Employee is permanently and totally disabled, it, too, fails under Clinkenbeard and the Commission's remand decision in Parker as it is based on two pre-existing injuries which do not qualify under $\S 287.220 .3(2)$ (a)a.(i)-(iv)RSMo.

Michael Dreiling, vocational expert, has provided two opinions in this matter. He authored two reports and provided testimony in two depositions.

Mr. Dreiling's first opinion is based on the restrictions outlined by Dr. Volarich. Dr. Volarich testified that those restrictions pertained to all the various neck and low back injuries Employee had sustained. Mr. Dreiling opined that Employee was unable to compete in the open labor market based upon a combination of his work injury of February 28, 2018, and the preexisting injuries of January 24, 2017, and March 28, 2017. In his first deposition, Mr. Dreiling testified that he was considering all of the permanent industrial disabilities, permanent restrictions, and permanent limitations discussed by Dr. Volarich at Dr. Volarich's deposition, including those not necessarily related to the injury dates of February 28, 2018, January 24, 2017, and March 28, 2017. (Exh. 24, p. 36).

In his second report, Mr. Dreiling based his opinion on Dr. Lehmen's restrictions relating to only the qualifying pre-existing disabilities of April 16, 2014, July 10, 2015, and January 24, 2017. (Exh. 25, pp. 9-10). It was his opinion that the work injury of February 28, 2018, in combination with these three qualifying pre-existing injuries, eliminates Employee from competing in the open labor market. (Exh. 25, p. 10). He testified he did not consider the preexisting injuries of October 29, 2015, or March 28, 2017, because he did not have specific restrictions for those two dates.

Mr. Dreiling has given inconsistent opinions in this matter. His first opinion is based on restrictions applying to all of Employee's neck and low back injuries (including an injury of March 28, 2017) and a shoulder injury. He specifically opines that the pre-existing injury of March 28, 2017, combines with the work injury and all the other pre-existing injuries to cause permanent total disability.

Mr. Dreiling's second opinion excludes the injuries of March 28, 2017, and October 29, 2015, because he did not have "specific" restrictions for either of those two dates. However, he testified in his first deposition that he relied on restrictions from Dr. Volarich who had previously testified those restrictions related to all pre-existing neck and low back injuries. Those included the injuries of March 28, 2017, and October 29, 2015. In his second deposition, Mr. Dreiling did not explain why he had the differing opinions, how one opinion supercedes the other, how the two opinions can be read in conjunction with each other, or how the two opinions can be reconciled. For these reasons, I do not find Mr. Dreiling's opinions to be persuasive.

Employee has not met his burden to prove that the work injury of February 28, 2018, combined solely with the qualifying pre-existing injuries of April 16, 2014, July 10, 2015, and January 24, 2017, result in permanent total disability.

Employee has not met his burden of proof. No benefits are awarded.


Made by: $\frac{\text { Melodie } 1 \text { Pore }}{}$ Melodie A. Powell

Administrative Law Judge

Division of Workers' Compensation