1~th - Missouri€¦ · Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this 1~th _ day of May 2020. LA~ND INDUSTRIAL

lsst1ed by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)

Injury No.: 16-028437 Jon Roehl

Molle Toyota, Inc. (settled)

Farmington Casualty Company (settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287 .480 RS Mo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 28, 2019.1 The award and decision of Administrative Law Judge Angela C. Heffner, issued August 28, 2019, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this __ 1~th ___ day of May 2020.

LA~ND INDUSTRIAL RELATIONS COMMISSION

··f\-c,g.~ Robert W. Cornejo, airman

SEPARATE OPINION FILED

Shalonn K. Curls, Member

1 The Second Injury Fund's application for review did not raise the issue of whether the administrative law judge erred by considering multiple preexisting disabilities in awarding permanent total disability against the Second Injury Fund. Courts have held that the Commission's statutory authority is generally limited to issues raised by a party's application for review. Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016). Therefore, we do not consider whether the administrative law judge properly considered multiple preexisting disabilities in determining Second Injury Fund liability pursuant to§ 287.220.3.(2)(a), even though this issue may have had a bearing on the Commission's resolution of this appeal. See Michael Lex ow v. Boeing Company and Treasurer of Missouri as Custodian of/he Second Injury Fund, lnj. No. 16-029680 (URC, March 20, 2020).

Injury No.: 16-028437 Employee: Jon Roehl

DISSENTING OPINION

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 affirm the administrative law judge's award of permanent total disability benefits against the Second Injury Fund.

Employee Failed to Establish a Compensable lniwy The administrative law judge erred in finding the Second Injury Fund liable for permanent total disability benefits to Jon Roehl in that she did not consider the competent and substantial evidence in the record of P. Brent Koprivica, M.D., who opined that the alleged occupational disease culminating on April 19, 2016, was not a compensable injury because it was not the prevailing factor in causing employee's condition and disability.

In a Missouri workers' compensation case, the employee has the burden of proving all material elements of the claim. Fischer v. Archdiocese of St. Louis-Cardinal Richter Institute, 793 S.W.2d 195 (Mo. App. 1990). It is the employee's burden to prove "not only causation between the accident and the injury, but also that a disability resulted and the extent of such disability." Griggs v. A.B. Chance Company, 503 S.W2d 697 (Mo. App. 1973). Further, "proof of permanency of injury requires reasonable certainty." Id. This proof must be based on competent and substantial evidence and not merely on speculation. Moriarty v. Treasurer of the State of Missouri, 141 S.W.3d 69 (Mo. App. 2004).

The administrative law judge did not properly consider Dr. Koprivica's opinion on whether the April 19, 2016, occupational disease/injury employee alleged was the prevailing factor in his resulting condition because she adopted the employee's arguments in total without any reference to Dr. Koprivica's opinion on this issue, and without any analysis of the facts, the evidence, or the application of law to the facts.

Dr. Koprivica is the only expert who weighed the mechanism of injury and the resulting condition, and concluded that it was more likely than not that employee's self-reported trip and fall over his dog leash, documented in contemporaneous emergency room records on April 19, 2016, the date of employee's alleged work injury, was the mechanism of injury and the prevailing factor that caused the resulting condition in employee's low back. Dr. Koprivica's opinion constitutes competent and substantial evidence contradicting the opinions of Dr. Poppa, Dr. Clymer, Dr. Erickson, and supports a reversal of the administrative law judge's decision that the April 19, 2016, injury/occupational disease constituted a compensable injury. Notably, neither Dr. Poppa, Dr. Clymer, nor Dr. Erickson even referenced the April 19, 2016, trip and fall injury employee sustained in his yard, and it appears that none of these doctors were even made aware of that injury before rendering their opinions that employee's alleged work injury was the prevailing factor in employee's resulting condition, and therefore, compensable.

Because Dr. Koprivica's competent and substantial opinion on the issue of compensability was not even considered, the administrative law judge's decision that

Injury No.: 16-028437

Employee: Jon Roehl -2-

the April 19, 2016, injury/occupational disease constituted a compensable injury should be overturned.

Employee's Preexisting Conditions Do Not Qualify for Second lniurv Fund Liability Pursuant to § 287.220.3 RSMo. The administrative law judge further erred in finding the Second Injury Fund liable for permanent total disability benefits to Jon Roehl in that she did not consider the competent and substantial evidence of Dr. Koprivica, who opined that none of Jon Roehl's preexisting conditions met the requirements of Section 287.220.3 to qualify for Second Injury Fund liability for permanent total disability benefits for injuries occurring after January 1, 2014, because none were either a) a compensable injury equaling fifty weeks of disability; b) a military related injury/condition equaling fifty weeks of disability; an opposing extremity of the subsequent April 19, 2016 injury, equaling fifty weeks of disability; or c) a condition that significantly and directly aggravated or accelerated the subsequent April 19, 2016 injury, equaling fifty weeks of disability.

Here, claimant's claim for injury was alleged as an occupational disease to his low back from repetitive heavy lifting at work, culminating on April 19, 2016, which is post January 1, 2014, the date of the change in the law set out in Section 287.220.3. This section provides, in pertinent part:

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

(2) No claims for permanent partial disability occurring after the effective date of this section shall be filed against the second injury fund. 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


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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 low 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.

Dr. Koprivica credibly testified that none of claimant's pre-existing conditions meet the requirements of Section 287.220.3 for Second Injury Fund liability for permanent total disability because none of the preexisting disabilities are 1) a military injury arising out of a direct result of active military duty in any branch of the United States armed forces; 2) a direct result of a compensable injury as defined in section 287.020; 3) a preexisting disability that directly and significantly aggravates or accelerates the primary injury; or 4) a pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when the primary is of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.

With regard to whether either claimant's preexisting Charcot Marie Tooth disease, alcoholism, or any other prior condition significantly aggravated or accelerated the primary occupational disease injury to the low back, Dr. Koprivica stated:

He did not have any prior military disability that he told me about, he did not have any prior workers' compensation claim for which he got a settlement. There really was not any interaction between the primary injury and his prior disabilities that I could tell that there would be an aggravation or acceleration of that disability significantly. Those are the-what I'm looking at, is there something that would potentially cause Fund liability, would it trigger Fund liability since this injury is after January 1st, 2014, and it's an occupational disease claim is what I understood. Now, there's some debate in my mind as to what the records say about it being related to work, but if you were to adopt that, I didn't really identify anything that I thought qualified after the revision of the statutes that would trigger Fund liability. One of the things I was really looking at is did he have prior back problems that would then aggravate or accelerate the new back problems he has of April 19, 2016, and he didn't volunteer any history to me of that and I couldn't find it in the record. 2

2 Transcript, 790-791.


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Dr. Koprivica did not view employee's prior history of ethanol abuse or Charcot Marie Tooth disease to qualify under Section 287.220.3 to trigger Second Injury Fund liability because neither of those conditions were a military or compensable work injury and neither of them significantly aggravated or accelerated the primary claim: "That's how I interpreted what he told me his level of function was from those prior conditions."3

Dr. Koprivica could find nothing that was industrially disabling that qualified under 287.220.3. He summarized his conclusions as follows:

The issue is that it's (alcoholism, charcot marie tooth) not military disability, it's not a workers' compensation claim that he's received a 50-week disability for, it's not a disability of one extremity with the opposite extremity being involved in the primary injury, there's not ear, or, you know, hearing or visual deficits as part of the disability. And with what he told me factually, I do not believe there's any evidence that either of the prior disabilities aggravate or accelerate the low back disability significantly where it would qualify to trigger Fund liability, that's my opinion.4

Dr. Koprivica is the only medical expert in evidence to analyze employee's pre-existing conditions and apply the new law to the facts of this case as required to determine whether there is Second Injury Fund liability for permanent total disability benefits. Dr. Poppa simply gave a one line cursory statement in his addendum report that the pre-existing conditions aggravated or accelerated the primary injury, without even referencing to which conditions he was referring, or explaining how and why these conditions aggravated or accelerated the primary injury. In addition, neither Dr. Clymer nor Dr. Erickson even addressed the issue of potential aggravation or acceleration of the primary injury.

Dr. Koprivica painstakingly analyzed the facts and circumstances of Jon Roehl's prior conditions, applied the law to those facts, and ultimately determined that none of the prior conditions meets the requirements of 287.220.3 for Second Injury Fund liability for permanent total disability benefits. Dr. Koprivica was the only medical expert in the case to do so. Dr. Poppa did not. Nor did Dr. Clymer or Dr. Erickson. Dr. Koprivica's opinion on this issue constitutes competent and substantial evidence, which was obviously not even considered by the administrative law judge because it is not referenced in the award. Had Dr. Koprivica's opinion been fully considered by the administrative law judge, such consideration and analysis would have been reflected on and refuted in the award.

Dr. Koprivica is the only expert to address whether the prior Charcot Marie Tooth and alcoholism conditions met the requirements of 287.220.3 when the primary injury is a post January 1, 2014, claim. He explained how and why it was his opinion that neither of those conditions significantly and directly aggravated or accelerated the primary back

3 Id. 792. 4 Id. 819.


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injury, as set out above. While Dr. Poppa gave a one-line cursory statement in an addendum report that the prior conditions aggravated or accelerated the primary back injury, he did not delineate to which conditions he was referring, or how those conditions aggravated or accelerated the primary back injury. Dr. Poppa's opinion on the issue is deficient as best. Dr. Poppa is not an M.D., as is Dr. Koprivica, but a 0.0., and he has far less training, education and experience than Dr. Koprivica does in the fields of emergency medicine and occupational medicine. Dr. Koprivica's opinion on the issue is by far more persuasive and credible than that of Dr. Poppa, because he explains the basis for his opinion as opposed to Dr. Poppa, who does not. Because Dr. Koprivica's opinion constitutes uncontroverted competent and substantial evidence supporting a reversal of the award, the administrative law judge's award should be overturned on this issue.

Employee's Present Alleged Permanent Total Disability is Solely Attributable to the Primary lniury The administrative law judge erred in finding the Second Injury Fund liable for permanent total disability benefits to employee Jon Roehl in that she did not consider the competent and substantial evidence of Dr. Koprivica, who opined that, if Jon Roehl was found to be permanently and totally disabled, that permanent total disability results solely from the alleged occupational disease culminating on April 19, 2016, in isolation, without consideration of any prior condition. Likewise, the administrative law judge did not consider the competent and substantial cross examination testimony of vocational expert; Michael J. Dreiling, who opined that the restrictions from the primary injury, considered in isolation, render Jon Roehl unemployable solely from the primary injury.

The administrative law judge must determine the extent of disability from the subsequent work related injury before assessing the liability of the second injury fund. This is true even under the "new law", Section 287.220.3, as employer is responsible for the permanent disability related to the injury caused by and in their employment. Furthermore, under Section 287.220.3, the second injury fund is liable for permanent total disability benefits only if the "subsequent compensable work-related injury, when combined with the preexisting disability ... results in permanent total disability as defined under this chapter." Section 287.220.3(2)(a)b. If the permanent total disability results from the compensable injury alone, and not from the combination of that injury and qualifying preexisting disabilities, the second injury fund has no liability. As under the "old law", if the compensable injury results in permanent total disability, no further inquiry into second injury fund liability is made. Roller v. Treasurer of the State of Missouri, 935 S.W.2d 739, 741 (Mo. App. 1996); Concepcion v. Lear Corp., 173 S.W.3d 368 (Mo App. 2005). Id. Given this principle, it is necessary to closely evaluate and scrutinize employee's work related injury to determine if it alone results in permanent total disability and not permanent partial disability, thereby alleviating any second injury fund liability. The administrative law judge failed to perform this analysis.

The administrative law judge did not appear to even consider Dr. Koprivica's credible opinion as to which injury rendered claimant permanently and totally disabled. With regard to this issue, Dr. Koprivica opined that the April 19, 2016, injury/occupational


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disease, considered alone, rendered claimant permanently totally disabled in isolation, without consideration of any prior condition. He stated:

I believe if you accept that there is a compensable claim, the primary occupational disease claim is totally disabling in isolation even if I don't consider the preexistent disability that was already there, and that's because he has postural limitations that are so severe that they in and of themselves are totally disabling and they're based on his disabling back pain.5

Dr. Koprivica included the fact that claimant has to lie down unpredictably throughout the day due to low back pain in his opinion that the April 19, 2016, cumulative injury, considered alone, renders employee permanently totally disabled. More specifically, Dr. Koprivica recounted:

He told me that his back pain had gotten to a point that he told me he was intermittently using a cane. He complained of postural limitations that he subjectively related to his claim of April 19, 2016, he said his sitting tolerance was unpredictable. He said his maximum capability of sitting was less than two hours, but at any given time he couldn't predict how long he could sit because of back pain. He also had unpredictable standing tolerances, he said it was less than 45 minutes as a maximum, but again, it was unpredictable. His walking tolerance was less than 20 minutes. He also told me that he had to lie down and stretch his back out because of pain and he was doing that on an unpredictable basis and doing it at least a couple of times per day. And again, I'm relying on him giving me this information because I asked him to date these complaints and he was dating them to the April 19, 2016 claim that he's saying has happened with the lifting of the tires and the antifreeze, he had a couple, you know, cumulative injuries associated with those tasks is what he told me. He said he tried to avoid lifting and carrying because of the pain he experienced, and he was self-limiting, lifting and carrying less than 20 to 30 pounds as a maximum. He denies having any new neurologic problems in his lower extremities from the low back.6

In conclusion, Dr. Koprivica opined:

If I assumed that there is a compensable claim, my opinion was that his low back condition in isolation precludes employment. What he described to me was that since he had hurt his back he was having pain that was so severe that he couldn't predict his capabilities posturally. He could only sit for limited times, stand for limited times, walk for limited times, but he couldn't predict at any given time how long he could do it. So it might be

5 Transcript, 817. 6 Transcript, 799-800.


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his back will bother him so bad that after a few minutes he's got to get up if he's sitting, other times he could sit up to two hours, so that's very unpredictable. That unpredictability when I look at it as an occupational physician, I don't believe you're going to be able to accommodate that to perform work as it's customary to perform in the open labor market. He also told me he was laying down unpredictably and he was doing that at least a couple of times a day, so the frequency of that is frequent enough that that's going to preclude employment in my opinion. He also is unpredictable when he has to lay down. So when I look just at those issues from the low back, and he told me that he didn't have low back disability before, I think that's totally disabling. Now again, that would be my opinion. And under that circumstance where the low back pain is permanently and totally disabling when considered in isolation, there isn't Fund liability_?

In addition, it appears that the administrative law judge failed to consider the crossexamination testimony of claimant's vocational expert, Michael J. Dreiling on the issue of which injury rendered employee permanently totally disabled. On cross-examination, Mr. Dreiling agreed that Dr. Koprivica's restrictions resulting from the April 19, 2016, cumulative injury to the low back, considered in isolation, would take employee out of the open labor market and render him permanently totally disabled without consideration of any prior condition. He acknowledged that even Dr. Poppa's restrictions resulting from the April 19, 2016, primary back injury, coupled with claimant's need to lie down during the day at unpredictable times for unpredictable periods as documented by Dr. Koprivica in his restrictions, would render claimant unemployable, in isolation, without consideration of any prior condition, and therefore permanently totally disabled solely due to the primary injury. Mr. Dreiling stated:

If it's a chronic condition and it's something that he has to do every day in a work setting, then that would preclude even doing work in a call center where he would have more option to alternate sitting and standing but he would have to be there and he would not be able to lie down, recline.8

Mr. Dreiling acknowledged that the need to alternate sitting and standing as needed for pain control for the back pain, would further limit claimant's employability even in a call center, stating "I believe it would have an impact.. .. obviously if he can't tolerate sitting or standing throughout an eight-hour day, that's going to impact on doing that job."9

Transcript, 665

Mr. Dreiling acknowledged that no restrictions were imposed on claimant's work prior to the primary injury due to either employee's preexisting Charcot Marie Tooth or alcoholism, and that he reviewed no records indicating that claimant had missed time from work due to problems from either of those prior conditions before April 19, 2016.

7 Id., 813-814. 8 Transcript, 664-665. 9 Id. 665.


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He acknowledged that claimant had no back problems before April 19, 2016, and was obviously able to perform his job at Molle Toyota prior to the April 19, 2016, primary injury, despite his prior Charcot Marie disease. Mr. Dreiling opined that claimant's need to lie down unpredictably throughout the day due to his back pain resulting from the April 19, 2016 primary injury rendered him unemployable in isolation without consideration of any prior condition: "If it's a chronic condition. Yes, if that's occurring on a regular basis, it precludes employment .... If that's why he's lying down, yes." 10

(Opining if employee's need to lie down is as a result of low back pain attributable to the April 19, 2016, injury.) When asked if he agreed with Dr. Koprivica's opinion that, if the April 19, 2016, injury is found to be compensable, then claimant is permanently and totally disabled solely due to the last accident due to the need to change postures and the need to lie down unpredictably throughout the day, without consideration of any prior condition, Dreiling agreed, stating, "If this gentleman can't sit for any length of time and can't stand for any length of time and is chronically needing to lay down in a work setting for pain issues, I would agree that he's not employable."11

Mr. Dreiling further acknowledged that if employee's alleged April 19, 2016, injury was found not to be a compensable injury there would be nothing to combine with any priors, and therefore employee "should be able to work." (T. 670). When asked:

And if the Judge were to find that none of the prior injuries or conditions, the Charcot-Marie-Tooth or the alcoholism or the left ankle, qualified as prior conditions under the new statute 287.220.3 for Second Injury Fund liability, would you agree, then, that there's nothing prior to combine anything with such that there would be a combination? I mean, there's no way that he could be found permanently and totally disabled (as to the Second Injury Fund) as a result of a combination of priors with the primary if there are no priors that qualify?

Mr. Dreiling responded:

Yes, I would view that more as a legal issue than a vocational issue but obviously if you tell me there's no preexisting medical conditions or disabilities or limitations, then obviously there's no issues there to look at from a vocational perspective.12

The administrative law judge did not even consider Dr. Koprivica's opinion that the April 19, 2016, occupational disease/injury, considered in isolation, has rendered claimant permanently and totally disabled. In addition, she did not consider the crossexamination testimony of vocational expert, Michael J. Dreiling, who opined that claimant is unemployable in the open labor market, and therefore, permanently totally disabled solely as a result of the effects of the April 19, 2016, occupational disease/injury. It is obvious the administrative law judge did not consider either

10 Id. 669. 11 Id. 671. 12 Id. 672.


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Dr. Koprivica's opinion and testimony, or Mr. Dreiling's cross examination testimony on this issue because, if she had, such consideration would have been reflected in the award, but was not. The administrative law judge simply adopted employee's arguments in total, without any analysis of the facts, the evidence, or the application of the law to the facts. The opinions of Dr. Koprivica and Mr. Dreiling on this issue constitute competent and substantial evidence supporting a reversal of the award.

It is not only the Administrative Law Judge's but also the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. Banc 2012). Birdsong v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo. App. 2004). Choosing between two conflicting medical theories is a credibility determination for the Commission to make. A determination of what weight it will accord expert testimony on matters relating to medical causation lies within the Commission's sole discretion. Aldridge v. Southern Missouri Gas Co., 131 S.W.3d 876, 882 (Mo. App. 2004). The Commission is free to believe or disbelieve any evidence and can make credibility determinations as well as determine the weight it accords to testimony and evidence. Carkeek v. Second Injury Fund, 352 S.W.3d 604, 609 (Mo. App. 2011) citing Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Cook, 323 S.W.3d 105, 110 (Mo. App. 2010). The Commission may not arbitrarily disregard and ignore competent, substantial, and undisputed evidence of witnesses who are not shown by the record to have been impeached, and the Commission may not base its findings upon conjecture or its own mere personal opinion unsupported by sufficient and competent evidence. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 907 (Mo. App. 2008), citing Copeland v. Thurman Stout, Inc., 204 S.W.3d 737, 743 (Mo. App.2006).

Even if one presumes that employee's April 19, 2016, occupational disease low back injury is compensable, employee's trial and deposition testimony further supports a finding of permanent total disability resulting solely from the primary. That testimony demonstrates that all of employee's physical complaints, pain, depression, and anxiety result from the last accident/injury to his low back. His trial testimony was consistent with his complaints to Dr. Koprivica: he has constant low back pain, he is limited in sitting, standing and walking to only 30 minutes; due to his back pain, he has poor sleep at night, and has to take 50-150 mg. of Trazodone every night to get more than four hours of sleep; due to his back pain resulting from the primary injury, he has to lie down for up to an hour at a time several times a day to help relieve his pain; and he has to take psychotropic medication to cope with the effects of his low back condition (Lexapro, Hydrazoline, Rexulti, and Trazodone). Driving or sitting too long increases his low back pain.

Claimant has difficulty with bending over, stooping, twisting, and kneeling due to his post-April 19, 2016, occupational disease/injury low back pain. He has to walk with a cane, whereas he did not have to use a cane to walk prior to the April 19, 2016, injury. Further, there were no restrictions on employee's work prior to April 19, 2016, injury for either the alcoholism or Charcot Marie Tooth condition. He was not taking any prescribed pain medication prior to April 19, 2016, and certainly not any narcotics. Due


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to his back pain, he is no longer able to engage in his pre-injury hobbies offishing or piloting his plane. It is difficult for him to bend over and put on shoes and socks. Employee had no back pain prior to April 19, 2016, was able to sleep through the night without waking up with back pain, and was not needing to recline during the day. In fact, he was working full duty at Molle Toyota prior to April 19, 2016.

Employee had none of these problems before the primary injury; he had no problems with his back; he was physically able to perform all of his daily tasks at work and at home without any problems, despite his prior conditions. Employee's prior conditions never prevented him from performing his work satisfactorily prior to the primary. In fact, he testified that, if he had not been injured on April 19, 2016, he would not have the low back pain that he now has, and he would still be working for Molle Toyota. He even went so far as to state that it was the April 19, 2016 injury/occupational disease that has left him in the state he is currently in, and is now preventing him from working, and rendering him unemployable in the open labor market, and therefore, permanently totally disabled. Transcript, 67

Conclusion The most persuasive competent and substantial medical, and vocational testimony in evidence are the opinions of Dr. Koprivica, and the cross-examination deposition testimony of vocational expert, Mike Dreiling, who both opined that claimant is unable to work, and therefore, permanently totally disabled solely from the effects of the April 19, 2016 injury/occupational disease, considered in isolation, even if, as the administrative law judge found, injury/occupational disease is found to be a compensable injury. Likewise, employee's own testimony at trial demonstrates that all of his pain complaints, functional limitations, depression/anxiety, need for narcotic pain medication, poor sleep, and need to lie down at unpredictable times for unpredictable periods during the day due to pain, all result from the April 19, 2016 primary injury. The testimony of Dr. Koprivica, Mr. Dreiling, and Jon Roehl constitutes competent and substantial evidence supporting a reversal of the administrative law judge's award.

The administrative law judge's award should be reversed because employee's April 19, 2016, alleged occupational disease claim is not a compensable injury. In the alternative, even assuming employee's April 19, 2016 occupational disease is considered compensable injury, the administrative law judge's award should be reversed because none of the employee's pre-existing conditions meet the requirements of Section 287.220.3 to qualify for Second Injury Fund liability for permanent total disability benefits. The Commission should find that the April 19, 2016, occupational disease to claimant's low back, and its effects, considered alone and in isolation, renders employee unemployable in the open labor market, and therefore, permanently totally disabled solely and that the Second Injury Fund therefore has no liability in this case. Under the terms of the statute, there is no need to even consider Second Injury Fund liability because the claimant has been rendered unemployable and therefore, permanently and totally disabled solely as a result of the primary injury.


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Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS COMPENSATION Employee: JON ROEHL

FINAL AWARD

Injury No. 16-028437

AS TO THE SECOND INJURY FUND ONLY

Employee: Jon Roehl Injury No.: 16-028437

Employer: Molle Toyota, Inc. (Settled)

Insurer: Farmington Casualty Company (Settled)

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: May 9, 2019 Checked by: ACH/drl

FINDINGS OF FACT AND RULINGS OF LAW

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 19, 2016

5 State location where accident occurred or occupational disease was contracted: Kansas City, Missouri

6. Was employee an employee 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 employment? Yes

9. Was Claim for Compensation filed within time required by law? Yes

10. Was employer insured by above insurer? Yes

11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of employment, was unloading and moving heavy auto parts, including tires and cases of anti-freeze, and was required to lift repetitively resulting in injury.

12. Did accident or occupational disease cause death? No

13. Date of Death? NIA

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14. Part(s) of body injured by accident or occupational disease: Low back

15. Nature and extent of permanent disability: Permanent Total Disability

16. Compensation paid to date for temporary disability: $0.00


17. Value of necessary medical aid furnished by employer/insurer? $392.81

18. Employee's average weekly wage: $841.39

19. Weekly compensation rates: $560.93 for TTD/ PTD and $464.58 for PPD

20. Method of wages computation: By stipulation of the parties.

COMPENSATION PAYABLE

21. Amount of compensation payable: The Claimant and Employer previously reached a compromise settlement of $27,874.80, representing a 15% permanent partial disability disability at the level of the back for Claimant's work injury, which was approved by the Division and was fair, reasonable, and appropriate. This current dispute relates only to employee's claims against the Second Injury Fund.

22. Second Injury Fund liability: The Second Injury Fund is liable to employee for permanent total disability benefits in the amount of $560.93 per week. The Second Injury Fund is liable for a differential payment in the amount of $96.35 for 60 weeks. At the conclusion of 60 weeks from April 19, 2016, the Second Injury Fund is liable to Mr. Roehl for permanent total disability of$560.93 per week and continuing for Claimant's lifetime.

23. The compensation awarded to the Claimant shall be subjected to a lien in the amount of 25% of all benefits awarded, by employee's attorney Brett J. Coppage and Edelman & Thompson, LLC, for services rend.ered.

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Isstled by DIVISION OF WORKERS COMPENSATION Employee: JON ROEHL Injury No. 16-028437

FINDINGS OF FACT AND RULINGS OF LAW

Employee: Jon Roehl Injury No.: 16-028437

Employer: Molle Toyota, Inc. (Settled)

Insurer: Farmington Casualty Company (Settled)

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: May 9, 2019 Checked by: ACH/drl

On May 9, 2019, the Employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287 .110 RSMo. The Employee, Jon Roehl (Claimant or Employee), appeared in person and with counsel, Brett Coppage. The Second Injury Fund ("Fund") appeared by and through its counsel, Assistant Attorney General Maureen Shine.

For the reasons noted below, I find that Mr. Roehl is permanently and totally disabled as a result of the combination of his pre-existing disabilities and the residuals attributable to his April 19, 2016 accident and, therefore, award him permanent total disability benefits from the Second Injury Fund.

STIPULATIONS

The parties stipulated to the following:

1. On or about April 19, 2016, Molle Toyota was an employer operating subject to Missouri's Workers' Compensation law;

2. John Roehl was its employee working subject to the law in Kansas City, Missouri;

3. Mr. Roehl notified the Employer of his injury and filed his claim within the time allowed by law;

4. Mr. Roehl's weekly rate for temporary and permanent total compensation was $560.93 for permanent and temporary total disability and $464.58 for permanent partial disability;

5. The Employer provided Mr. Roehl with medical care costing $392.81;

6. Employer did not pay any temporary total disability benefit compensation;

7. The Employer and Mr. Roehl previously settled the primary claim for 15% body as a whole, low back; and

8. The commencement date for permanent total disability benefits is April 19, 2016.

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Issued by DIVISION OF WORKERS COMPENSATION Employee: JON ROEHL Injury No. 16-028437

ISSUES

The parties requested the Division to determine: 1. Whether the Claimant sustained an mJury or occupational

disease in the course and scope of employment; and 2. Whether the Second Injury Fund is liable to the employee for

any disability compensation.

EVIDENCE

Claimant testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1

Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7

Report of Dr. Michael Poppa dated February 16, 2017 and accompanying medical records Addendum Report of Dr. Michael Poppa dated JUne 26, 2018 Report of Dr. David Clymer dated October 2, 2017 Report of Dr. Neal Erickson dated June 30, 2016 Deposition of Dr. P. Brent Koprivica Deposition of Michael Dreiling Signed Stipulation between Claimant and Employer-Insurer

The Second Injury Fund presented no live testimony and submitted the following exhibits, which were admitted into evidence without objection:

Exhibit I Exhibit II

Deposition of John Roehl, January 26, 2018 Deposition of Dr. P. Brent Koprivica and all exhibits to the deposition

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Claimant is a 51-year-old man who worked in the parts department at Molle Toyota at the time of his injury. Claimant is currently living in Independence, Missouri and is and was unmarried at all times relevant. Claimant testified in person at the hearing and I find his testimony to be credible.

A. The April 19, 2016 Occupational Disease

On April 19, 2016, Claimant was acting within the course and scope of his employment when he began to experience the onset of low back pain. Claimant testified that another employee in the parts department was not working on April 19, 2016. Although Claimant's typical job duties did not include unloading trucks, on April 18 and 19, 2016 Claimant attempted to fill-in for the missing employee and unloaded a truck containing boxes of antifreeze and tires. Over the course of the day on April 19, 2016, Claimant began to experience the onset oflow back pain.

After working the full day, Claimant went home the evening of April 19, 2016, let out his

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dog, and then reclined in his chair at home the rest of the evening. Due to his severe back pain which grew worse throughout the evening, Claimant was unable to get out of his recliner and was forced to call an ambulance and report to the Emergency Room on April 19, 2016.

The Second Injury Fund defended this claim, arguing Claimant did not sustain an injury within the course and scope of employment because the emergency room records also mention a fall that occurred outside of work, after Claimant came home on April 19, 2016, while he was letting out his dog (in addition to noting the work-related injury). However, after reviewing the evidence, the Court finds the prevailing factor for Claimant's work injury was the repetitive lifting of items in the course and scope of employment on April 19, 2016 and all days prior.

In this respect, Claimant's retained medical expert, Dr. Poppa, reviewed the applicable medical records and concluded that Claimant sustained a musculoligamentous sprain-strain, chronic myofasciitis, lumbar disc abnormalities, bulging at L2-L3 through L4-L5, and facet hypertrophy, and that the prevailing factor for the development of Claimant's condition was Claimant's work activities. (Ex. 1) In addition, Claimant's primary care physician, Dr. Erickson, prepared a letter dated June 30, 2016 in which Dr. Erickson opined the repetitive lifting at work was the cause of Claimant's low back pain and bulging discs on multiple levels. (Ex. 4)

Likewise, the medical expert retained by Employer, Dr. Clymer, concluded that Claimant sustained an injury within the course and scope of his employment due to repetitive lifting. (Ex. 3) Dr. Clymer concluded Claimant did exhibit some preexisting degeneration in the lumbar spine, and thus attributed 10% disability to preexisting degeneration and 10% disability directly to the April 19, 2016 occupational disease. Dr. Clymer assigns a 25-pound lifting restriction to the Claimant.

· The Second Injury Fund retained Dr. Koprivica to evaluate Claimant and review the medical records. Dr. Koprivica concluded, like Dr. Poppa, Dr. Erickson, and Dr. Clymer, that Claimant had sustained an injury on or about April 19, 2016 that Dr. Koprivica diagnosed as "chronic mechanical back pain." (Ex. 5, p.425)1 However, Dr. Koprivica was unable to identify the etiology of this injury. Dr. Koprivica does not dispute Dr. Poppa, Dr. Erickson, or Dr. Clymer' s findings that the alleged occupational disease could be the prevailing factor for a new work injury. Instead, Dr. Koprivica simply notes that the medical records indicate a fall occurred at home on April 19, 2016 and Dr. Koprivica indicates he is not able to say to a reasonable degree of medical certainty which event (the work activities or the fall at home) is the prevailing factor for Claimant's medical condition involving the low back. However, Dr. Koprivica agrees both incidents are mechanisms which could result in an injury to the low back. Dr. Koprivica defers to the fact finder on this issue~as opposed to rendering an opinion one way or the other. Specifically, Dr. Koprivica testifies as follows:

Q: And then in terms of the alleged mechanism of injury in the work comp claim relating to his April 2016 injury, you don't disagree that the repetitive lifting that Mr. Roehl has said he did in terms of lifting the antifreeze and lifting the tires, that that's a mechanism that can cause injury, you don't disagree with that?

I All page number references in Claimant's exhibits use the Bates stamped number on the page or pages cited.

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A: No. My opinion is I think it is competent to produce injury.


Q: If I understood your testimony, you were saying there are two potential mechanisms of injury, both of which you believe may have led to his current symptoms, true?

A: They're both competent. The fall is competent as well as the lifting is competent to produce disability in his low back.

Q: And if I understood your testimony, you're not opining one way or the other as to which one is the cause of his current symptoms, you're leaving that factual determination up to the finder of fact; is that correct?

A: Yes.

(Ex. 5, p. 414-5)

Thus, three medical doctors, including Employer's medical expert, opine the prevailing factor for Claimant's low back injury was repetitive lifting at work. On the other hand, Dr. Koprivica is not able to opine one way or another-but confirms repetitive lifting is a mechanism that could cause Claimant's condition. I find Dr. Koprivica's causation option to be less credible than the causation opinions ofDrs. Clymer, Erickson, and Poppa.

Claimant testified at hearing that the fall involving his dog occurred when the dog's lead wrapped around his ankle. Claimant testified he fell onto a steep grassy incline, falling uphill, and that the fall was insignificant and did not produce any new pain. Claimant testified that his low back pain was already present prior to the fall involving the dog and that he mentioned the fall in the emergency room to ensure a full history was provided.

Accordingly, the weight of the evidence confirms that Claimant sustained an occupational disease in the course and scope of employment and that the prevailing factor for Claimant's mechanical back injury that continues to produce chronic pain was work.

Following the April 19, 2016 occupational disease, Claimant obtained medical treatment on his own and Claimant obtained authorized medical treatment through Employer. Specifically, Claimant reported to the emergency room the evening of April 19, 2016 reporting low back pain. Employer sent Claimant to U.S. Healthworks on April 28, 2016 for evaluation and treatment. The treating doctor at U.S. Healthworks placed Mr. Roehl off work and he was provided pain medications and it was recommended Claimant follow up with a neurosurgeon. On April 29, 2016, Claimant went to his primary care doctor's office and was seen by the nurse practitioner. Claimant rep01ied to a series of different emergency rooms reporting low back.

Claimant next obtained treatment, which was authorized by Employer, on May 3, 2016 at U.S. Healthworks. No further authorized treatment was obtained through the Employer. Claimant testified at hearing, and the medical records confirm, that Claimant was suffering from alcohol abuse issues that predated his work injury and became worse during his recovery from the

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Issued by DIVISION OF WORKERS COMPENSATION Employee: JON ROEHL Injury No, 16-028437

work-related injury. Given his alcoholism, Claimant was at times abusive and combative with medical personnel. At hearing, Claimant did not minimize or deny the description of his behavior while he was in the various medical providers' offices when he was under the influence of alcohol.

Claimant continued to report low back pain and reported to numerous emergency rooms over the course of the ensuing months. Claimant continued to present while inebriated and was often abusive and combative with medical staff. Claimant reported to the emergency room numerous times in April, May, June, July, August, and September of2016 largely with complaints relating to his low back pain.

Claimant also obtained pain management treatment for the low back, including an epidural steroid injection on May 19, 2016 administered by Dr. Hendler.

Prior to April 19, 2016, Mr. Roehl reported no significant low back pain, other than occasional soreness with workplace activities.

At hearing, Claimant testified that he continues to suffer from low back pain. Due to his chronic back pain, Claimant testified that his tolerance for sitting is unpredictable, and he frequently alternates between sitting and standing. Claimant testified that he suffers from back pain on a daily basis due to his work injury. Dr. Clymer limited Claimant's lifting to 25 pounds due to his work injury. Similarly, Dr. Poppa limited Claimant's lifting to no greater than 10 pounds on an occasional basis due to his work injury and that Claimant should alternate between sitting and standing as needed for pain control.

In light of the foregoing, the Court finds that the prior compromise settlement with the employer, based upon a 15% permanent partial disability to the body as a whole referable the back, was appropriate, accurate, and the Court finds Claimant did in fact sustain a 15% permanent partial disability to the body as a whole referable the back as a result of his work activities and that a compensable occupational disease arose on or about April 19, 2016.

B. The Liability of the Second Injury Fund

Having found that a compensable work injury occurred, the Court next turns to the liability of the Second Injury Fund. The Second Injury Fund has no burden in producing any evidence; rather the Claimant must establish permanent total disability by introducing evidence. Teresa Carkeekv. Second Injury Fund, 352 S.W. 3d 604 (Mo App W.D. 2001) (citing Clarks Harts Auto Repair, 274 S.W. 3d 612, 616 (Mo. App. 2009)).

Pursuant to RSMo. § 287.220(3), the Claimant must meet the following conditions in order for the Second Injury Fund to be liable:

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

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(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. 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) 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; or§ 287.220 RSMo 2014.

As is further set fotih below, there is no dispute that Claimant suffered from significant preexisting medically diagnosed disabilities prior to the work injury at issue that equaled a minimum of 50 weeks disability. In addition, there is no dispute that Claimant is now permanently and totally disabled. Thus, the next issues to be determined is whether the preexisting disabilities aggravate or accelerate the subsequent work injury and whether the last injury in isolation caused the total disability.

C. Preexisting Medical Conditions that were an Obstacle or Hindrance to Employment and Equal at Least 50 weeks of Permanent Partial Disability

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Claimant was diagnosed with Charcot-Marie-Tooth disease in his late teens and/or early twenties. As Dr. Koprivica testified, Charcot-Marie-Tooth (hereinafter "CMT") disease "is a hereditary peripheral neuropathy, and his (Claimant's) primarily was a motor neuropathy affecting his lower extremities." (Ex. 5, p.378-379) Claimant testified at hearing that the CMT has progressed over his lifetime. Claimant has worn AFO braces on both feet for many years and prior to his work-related occupational disease's onset. As a result of the CMT, Claimant testified that he suffers from numbness, tingling, and pain in the extremities. Claimant suffers from dropfoot with respect to both lower extremities and testified he frequently has problems lifting, carrying, and grasping objects with the upper extremities. All of the medical doctors that evaluated Claimant noted the prior CMT and found it to be significant.

Dr. Koprivica, the retained expert for the Second Injury Fund, testified that the prior CMT was a significant preexisting industrial disability that in Dr. Koprivica's opinion "is much greater than 50 weeks" disability. (Ex. 5, p.412-3)

Similarly, Dr. Poppa opined that the preexisting CMT was a 20% disability to the body as a whole and as a result of the CMT, Claimant should not climb ladders, he should not perform repetitive grasping or gripping, and should not perform work using the upper extremities. (Ex. 1) Also, Dr. Clymer noted that Claimant "has significant pre-existing neuropathic problems related to either multiple sclerosis or Charcot-Marie-Tooth disease with significant progressive weakness and dysesthesia in both lower extremities. I believe this chronic and progressive process has gradually advanced such that he now requires AFO braces and is using a cane intermittently for ambulation." (Ex. 3, p.366) Dr. Clymer further stated that he believed the CMT "is the primary factor which is limiting this gentleman's function and abilities at this point." (Ex.3, p.366)

As a result of the CMT, Claimant testified that he was provided significant accommodations in the workplace while at Molle Toyota. Specifically, Claimant was provided a chair to alternate sitting and standing while working the parts counter and Claimant was also allowed to use a golf cart to travel between the parts center and the main building at the dealership. No other employees were offered the use of the golf cart.

Claimant also has a preexisting history of alcoholism. Claimant testified that beginning· in the early 2000's, he would drink a fifth of liquor every day, on average. Although he never drank while at work, Claimant testified he drank virtually every night. Claimant testified that over the years his alcohol consumption had a direct impact on his ability to maintain employment, remain focused throughout the day, and show up alert and on time for work. Dr. Koprivica, the Second Injury Fund's medical expert, confirmed that the prior alcohol abuse was a preexisting disability that was an obstacle or hindrance to employment and greater than 50 weeks disability. (Ex. 5, p.413-414)

Dr. Poppa, Claimant's medical expert, also noted the preexisting alcoholism in his report and opined that it amounted to a 12.5% permanent partial disability (50 weeks) to the body as a whole. (Poppa Ex. 1)

Voluminous evidence regarding the significance of Claimant's alcoholism is contained within the medical records following his work injury. Additionally, Claimant was open and

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honest about the severity of his alcoholism. It is clear Claimant's alcoholism was disruptive and a hindrance to employment.

Fortunately, following his work injury, Claimant obtained in-patient rehabilitation treatment for the alcohol abuse and, as Claimant testified to at hearing, has now been sober for over a year. However, at the time of his work injury there is no question this was a preexisting disability that was a substantial obstacle to employment.

In addition, Claimant testified that he sustained a fracture to his left ankle due to a fall prior to his work injury. As a result of his ankle injury, Claimant underwent a surgical open reduction and internal fixation procedure and Claimant testified he continues to suffer from swelling and pain in the affected ankle and pain that further limits his ability to stand. Dr. Poppa opined that the prior ankle injury constituted a 30% permanent partial disability and limited Claimant's ability to climb ladders, run, jump, climb stairs, or work at heights due to this condition. (Ex. I)

Claimant has met his burden of demonstrating preexisting medical conditions that equal or exceed SO weeks of disability with respect to preexisting CMT, alcoholism, and prior ankle injury.

D. The Preexisting Medical Conditions Aggravated and Accelerated the Subsequent Work Injury

Claimant's preexisting disabilities (CMT, alcoholism, and the ankle fracture) are not the result .of a prior compensable injury and did not arise due to military duty. Thus, this issue to be determined is whether the preexisting disabilities "directly and significantly aggravates or accelerates the subsequent work injury" and whether the work injury, when combined with the preexisting disabilities results in permanent total disability. RSMo. § 287.220(3)(2)(a)(iii).

No Missouri court or Missouri Labor Commission decision has specifically interpreted what is meant by the terms "aggravates" or "accelerates." According to section 287.800.1 RSMo., provisions of Chapter 287 are to be strictly construed.

A strict construction of a statute presumes nothing that is not expressed. The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

Allcorn v. Tap Enters, Inc., 277 S. W.3d 823, 828 (Mo. App. S.D. 2009)

Dr. Koprivica confirmed that the words "aggravates" and "accelerates" hold no special significance from a medical standpoint. Specifically, Dr. Koprivica testified as follows:

Q: And that's a good thing to note. So the term "aggravate," that's not a

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medical term, is it?

A: No.

Q: The term "accelerate," that's not a medical term, is it?

A: No.


Q: These are just general terms that are in the statute and you're not opining as to the definition of what those are, are you?

A:No.

(Ex. 5, p.429-30)

The ordinary meaning of the terms "aggravate" and "accelerate" can be gleaned from Webster's Dictionary which defines "aggravate" as "to make worse; make more burdensome, troublesome, etc." WEBSTER'S DICTIONARY, SECOND COLLEGE EDITION 1974. The word "accelerate" is defined as, "to cause to develop or progress more quickly." Id.

In this case, Dr. Poppa specifically opined that Claimant's prior medical condition involving peripheral neuropathy, his prior ankle fracture, and his alcoholism "directly and significantly aggravate or accelerate his subsequent work injury." (Ex. 2, p.13)

At hearing, Claimant testified that he has chronic low back pain that limits his ability to sit for prolonged periods. Due to Claimant's peripheral neuropathy and his prior ankle injury, Claimant testified he had a limited ability to stand or walk. Now, as a result of the combination of these injuries, Claimant testified that he is unable to obtain relief for his low back pain by changing positions-because he is so limited in his ability to stand due to the CMT. His inability to stand for prolonged periods because of his preexisting disabilities, forces him to remain in a captive seated position. Claimant testified this increases and worsens his back pain.

Of particular significance, Dr. Koprivica admits that the inability to change positions due to preexisting disabilities "exacerbates" Claimant's subsequent work injury:

Q: Gotcha. Now, when you met with Mr. Roehl he did relate to you that because of his alleged work injury that he had some postural limitations, correct?

A: Yes.

Q: And that because of the symptoms he attributed to his work injury, that his sitting tolerance was unpredictable, correct?

A: Yes.

Q: And that because of that he had to change positions, otherwise his back

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pain would be aggravated, correct?

A: I would probably say exacerbated. I don't know that there's a permanent harm from sitting that's going to occur with that event, but on a temporary basis he would have a significant increase in his pain.

(Ex. 5, p.428-429 emphasis added)

Dr. Koprivica, in his testimony, virtually quotes the definition of the word "aggravates" in his answer by using the words "exacerbates" and "significant increase" when referring to the effect of the prior disabilities to the symptoms associated with the current work injury. The distinction that Dr. Koprivica attempts to draw ( a temporary aggravation versus a permanent aggravation) is a requirement not found in RSMo § 287.220.

Given the foregoing, it is hereby found that the preexisting disabilities both aggravated and accelerated Claimant's subsequent work injury.

E. Due to the Combination of the Subsequent Work Injury and the Preexisting Disabilities Discussed Above, Claimant is Permanently and Totally Disabled and No Reasonable Employer in the Ordinary Course of Business is likely to Employ Claimant

The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market for work. Reiner v. Treasurer Missouri, 837 S.W.2d 363, 367 (Mo. App. E.D. 1992). Total disability means the inability to return to any reasonable or normal employment. Lewis v. Kansas Univ. Medical Center, 356 S.W.3d 796, 800 (Mo. App. W.D. 2011); Brown v. Treasurer of Missouri, 795 S.w.2d 479,482 (Mo. App. E.D. 1990). The term "total disability" is defined as the inability to return to any employment not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Id. It does not require the Claimant to be completely inactive or inert. Id.

In the present matter, it is clear that Claimant is totally disabled. There is no evidence to the contrary. Dr. Poppa opines that "it is my opinion Mr. Roehl is probably or more than likely not capable of gainful employment in the open labor market. I have serious concerns about Mr. Roehl's ability to find and sustain employment in the open labor market due to the residuals of his personal medical conditions and recent work injury involving his lumbar spine." (Ex. I) Likewise, Dr. Koprivica admits that Claimant is permanently and totally disabled:

(Ex. 5, p.414).

Q: Also, in terms of things we can all agree on, you don't disagree with the notion that this gentleman is permanently and totally disabled, true?

A: I believe he is totally disabled.

At his attorney's direction, Michael Dreiling performed a vocational evaluation of the Claimant. Mr. Dreiling testified, unequivocally, that the combination of Claimant's preexisting

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disabilities and his current work injury caused his total disability:

(Ex. 6, p.572)

Q: Now, in terms of whether an ordinary employer in the regular course of business would hire Mr. Roehl to perform work, is it your opinion that they would not?

A: Yes.

Q: And is that based on the combination of his preexisting medical issues and the physical restrictions he has relating to those as well as his alleged work injury from 2016?

A: Yes. Based upon the vocational profile factors that I've outlined in my evaluation I believe I took into account all those conditions.

Further, Mr. Dreiling confirmed that Claimant was not totally disabled due to the last work injury in isolation. Specifically, Mr. Dreiling testified:

Q: Now, I want you to assume for a second, if you will, that the preexisting medical conditions that Mr. Roehl has, that they were not present and he has only physical limitations related to his 2016 back injury that occurred at work, in isolation would those restrictions knock him out of the labor market or do you think there would still be some employment that he could obtain?

A: In terms of the actual medical restrictions that have been recommended for the back condition, I believe those by themselves would not preclude him from working.

(Ex. 6, p.572-3)

Mr. Dreiling's testimony is consistent with the medical records-which evidence that Claimant had limited treatment for his back injury. Dr. Koprivica also testified that Claimant's treatment for the back injury was limited and that he only sustained a "mechanical back injury." (Ex. 5, p.428) In isolation, the work injmy at issue was not significant enough to render Claimant totally disabled. The Court concludes that the combination of preexisting disabilities and the subsequent work injury, in combination, produced Mr. Roehl' s permanent and total disability.

CONCLUSION

The Second Injury Fund is liable to employee for permanent total disability benefits in the amount of $560.93 per week. The Second Injury Fund is liable for a differential payment in the amount of$96.35 for 60 weeks. At the conclusion of60 weeks from April 19, 2016, the Second

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Injury Fund is liable to Mr. Roehl for permanent total disability of $560.93 per week and continuing for Claimant's lifetime.

The compensation awarded to the Claimant shall be subjected to a lien in the amount of 25% of all benefits awarded, by employee's attorney Brett J. Coppage and Edelman & Thompson, LLC, for services rendered.

I certify that on 2-J.J? dCJ , I delivered a copy of the foregoing award to lhe parties to the case. A complete record _of the method of delivery and date of service upon each party is relained with the executed award in the Division's case file.

// I , /1/J Made by:~;L..L'(-+'il,,,_-1.-------'-f---'-h_?Jl--f'-f_V-L__ __ _

! ,) Angela C. Heffner

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Administrative Law Judge Division of Workers Compensation

Documents

1~th - Missouri€¦ · Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this __ 1~th ___ day of May 2020. LA~ND INDUSTRIAL

1~th - Missouri€¦ · Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this 1~th _ day of May 2020. LA~ND INDUSTRIAL