Issued by THE LABOR AND INDUSTRIAL RELATIONS ......FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) Injury No.: 07-133452 Employee: Ulysses

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No.: 07-133452

Employee: Ulysses Robinson, Jr.

Employer: The Loxcreen Company, Incorporated

Insurer: Capital City Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to§ 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Preliminaries

The parties asked the administrative law judge to determine the following issues: (1) medical causation; (2) permanent partial disability; (3) permanent total disability; (4) future medical (5) liability of Second Injury Fund; and (6) maximum medical improvement.

The administrative law judge determined as follows: (1) the work-related accident was the prevailing factor only in regard to injury and disability to employee's head and body as a whole; (2) the work-related injury resulted in a 5% permanent partial disability to the head and body as a whole; (3) employee was not permanently and totally disabled as a result of the injury, nor as a result of combination with any preexisting injuries; (4) the need for future medical care was not proven; (5) there is no liability on the part of the Second Injury Fund; and (6) employee reached maximum medical improvement as of November 13, 2008.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in finding employee was not permanently and totally disabled as a result of the work-related injury or in combination with preexisting health problems; (2) in finding employee's work-related injury was the prevailing factor only as applied to disability to his head and body as a whole at 5%; (3) in finding that the medical opinions and vocational opinions of the employer's experts were more persuasive; and (4) in finding employee requires no future medical care for the injuries sustained in the work accident.

Injury No.: 07-133452 Employee: Ulysses Robinson, Jr.

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For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) medical causation; (2) permanent partial and permanent total disability; (3) future medical care; (4) the liability of the Second Injury Fund; and (5) the amount of reasonable attorney's fees.

Discussion

Medical Causation

There is no disagreement that employee was injured as a direct cause of a work-related accident on November 2, 2007, which resulted in a loss of consciousness.1 The extent of the injury is in dispute. Dr. David Volarich opined that as a direct result of employee's trip and fall, he sustained several injuries. We find Dr. Volarich persuasive in his findings that the fall on November 2, 2007 was "the substantial contributing factor as well as the prevailing or primary factor causing the right facial contusion, the right eye traumatic iritis, the right shoulder internal derangement that required two surgical repairs, the aggravation of the right wrist carpal tunnel syndrome that required surgical repair, the left hip bursitis, the left knee internal derangement that required surgical repair, and the back pain syndrome secondary to abnormal weightbearing that required conservative treatments." Transcript, page 526. Dr. Volarich acknowledged that the traumatic iritis has resolved.

Nature and Extent of Disability Resulting From the Work-Related Accident

Following the accident, authorized treatment was provided that included two procedures to the right shoulder, right carpal tunnel release and a left knee surgery. Early treatment records following the accident also document contusions to the left hip resulting in altered gait and problems with loss of balance. We find employee credible in his reports of injury and symptoms despite the limitations of his education and difficulty in ability to relate a precise mechanism of trauma on the date of accident.2 What is clearly shown from the medical records is that subsequent to a significant traumatic event on November 2, 2007, in the workplace, employee has experienced a dramatic and permanent increase in symptomology. This corresponds to a resulting decrease in his level of functioning. We do not believe this correlation is merely coincidence.

1 We note the obvious error in Dr. David Volarich's report, which is incorrectly dated September 22, 2009. On that same page, the date of injury is stated in a heading, "History Re The Injury of 9/2/07." Transcript, page 513. Dr. Volarich otherwise uses the correct injury date, 11/2/07 in his review and analysis. The confusion on dates carries through to Dr. Michael Nogaliski's report, dated May 19, 2015. Transcript, page 783. Dr. Nogaliski references a medical examination by Dr. Volarich on 11/22/09, Transcript, page 785, and a report by Dr. Volarich on 9/22/09. Dr. Volarich's report was incorrectly dated 9/22/09, when all other references within Dr. Volarich's reports are to 9/22/2010, following an independent medical examination on 9/22/2010. Transcript, page 507, 512, 514~531 headers. This discrepancy is also significant to an error in Or. Nogaliski's observations that employee's report of injury to Dr. Volarich was different from the report given to Dr. Nogaliski, "two days later/ Transcript, page 785. Employer's brief also compounds the confusion by reference to the Volarich examination as September 22, 2009, as shown on page 513 of the transcript. (See Employer Brief, page 13). Page 512 of the transcript and all reference by Volarich thereafter; reflect the date of September 22, 2010. 2 Here, we again point out that the administrative law judge relied on Dr. Nogalski's inaccurate observation that employee provided two different descriptions of injury within two days to two different doctors. While employee may have shown some difficulty as a historian of his symptoms, Dr. Nogalski was under a misimpression that Dr. Volarich had examined employee on November 22, 2009, (the correct date was November 22, 2010) and Dr. Nogalski's examination was on November 20, 2009. It Is likely that the doctor's observation of different injury descriptions within two days impacted the administrative law judge's perception of reliability and credibility of claimant's reports.


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The Award of the administrative law judge ignores the fact that employee has undergone multiple, authorized surgical procedures, and that this resulted, in part, in employee being kept off work for approximately two years. ($25,089.06 was paid in temporary total disability benefits, which equates to about 105 weeks, paid without dispute.)

To what extent employee's problems are a direct result of trauma, the sequelae of authorized surgical procedures, gait changes and/or prolonged deconditioning superimposed on significant pre-existing degenerative changes, is largely irrelevant. The trauma of the November 2, 2007 accident was the prevailing factor causing permanent disability referable to the head, right upper extremity, left lower extremity and low back. We find Dr. David Volarich's opinion credible in this regard and note that his opinions are corroborated by Dr. Carl Huff's records and employee's surgical history.

We note that Dr. Robert Bernardi and Dr. Michael Nogaliski suggest that an unidentified cervical neurological disorder may be causing much of employee's symptoms. This seems entirely plausible and consistent with the history of head trauma, loss of consciousness, and conditions including dysesthesias and loss of balance as noted in treatment records following the date of accident. It is, however, irrelevant that employee's surgeries may have been unwarranted or unnecessary; employee is entitled to compensation for the disabling effects of authorized procedures.(§ 287.140; Pace v. City of St. Joseph, 367 S.W. 3d 137 (Mo. App. 2012); Lahue v Missouri State Treasurer, 820 S.W. 2d 561 (Mo. App. 1991)(superseded on other grounds).

We find that Permanent Partial Disability (PPD) has been shown as a direct result of the November 2, 2007, work-related injury as follows: 5% of the body as a whole referable to the head; 25% of the right upper extremity at the 232 week level (combined shoulder and wrist); 25% of the left lower extremity at the 207 week level ( combined hip and knee); and 5 % of the body as a whole referable to the low back.

Liability of the Second lniurv Fund

Liability of the Second Injury Fund for Permanent Total Disability (PTO) under § 287.220.1 occurs when the employee establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For the employee to demonstrate Fund liability for PTO, he must establish (1) the extent or percentage of the Permanent Partial Disability (hereinafter PPD) resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTO or greater overall disability. Lewis v. Treasurer of Mo., 435 S.W.3d 144,152 (Mo. App. 2014).

We have found that PPD has been shown as a direct result of the November 2, 2007, work-related injury to the head, upper right extremity, left lower extremity and low back/ body as a whole. We find that the disability caused by these injuries alone did not render employee permanently and totally disabled. The opinion of Dr. Volarich was persuasive in his medical assessment that the employee "is permanently and totally disabled as a direct result of the work related injuries of 11/2/07 in combination with his preexisting medical conditions." Transcript, page 528, emphasis ours. He found that


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but for the preexisting injuries; the injuries resulting from the accident would not have been as severe.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ... " Id.

It is clear that at the time of the work injury on November 2, 2007, employee had a multitude of preexisting permanent partially disabling conditions, which constituted a hindrance to employment, (employment at two previous employers ended because of employee's physical limitations in doing the work)3 These preexisting disabilities left him in a weakened condition, vulnerable to a substantial increase in the level of permanent disability due to this trauma. The medical records document several injuries, conditions, and surgeries prior to November 2, 2007, including left elbow cubital tunnel syndrome with a carpal tunnel release; right elbow cubital tunnel syndrome without surgery; right wrist carpal tunnel syndrome without surgery; right shoulder impingement with partial rotator cuff tear; right knee degenerative arthritis; and left shoulder separation. Transcript, page 526. Employee had two prior work injuries resulting in permanent partial disability awards for left shoulder and left lower extremity (settled 1995) and left upper extremity and right hand (settled 2006).

We find that each of employee's preexisting disabling conditions were hindrances or obstacles to employment or reemployment, and that each had the potential to combine with a future work injury to result in a greater level of disability than would have resulted in the absence of these preexisting conditions. Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007).

We turn now to the question of whether employee is permanently and totally disabled as a result of the effects of the work injury in combination with his preexisting disabling conditions. We have found persuasive the opinion of Dr. Volarich, finding that the employee's preexisting injuries combined with his current injuries/disabilities to render him totally disabled. Transcript page 528.

The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011).

Employee's work options have steadily decreased over the years as a result of work injuries and other disabling conditions. At the time of his last job at Loxcreen, his duties allowed him to be sitting 80% of the time. The last task he was able to perform at Loxcreen was sorting nails. Employee reports that he needs to recline about half the

3 Employee left Tyson's in 2006 due to problems with shoulders, elbow and wrists. He lost a job at Jimmy Dean in the early 2000's due to problems with performing the work due to physical limitations. Transcript, pages 62, 64-66.


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day because of back and leg pain. He continues to take medication for frequent pain and limitation of movement. Transcript, pages 49-50. He uses a cane, a back brace and a knee brace. We find persuasive the opinion of Vocational Rehabilitation Counselor James M. England Jr., who found employee "totally disabled from a vocational standpoint considering the combination of his medical problems, the description that he gave to me of his day to day functioning and the restrictions mentioned by Dr. Volarich." Transcript, page 546. As further noted in Mr. England's report, employee's lack of a GED eliminates some jobs. According to Mr. England, the restrictions placed by Dr. Huff alone would limit him to sedentary work only which would eliminate 90% of the possibilities in the work force and adding the other restrictions of Dr. Volarich eliminates even sedentary work. Even employer's vocational expert, Gary Weimholt, found that if one considers the need to recline on the job, the occupations he suggested, (mostly driving and seated positions), would be eliminated. Transcript, page 908.

In sum, after careful consideration, we are persuaded that employee is not capable of competing for work in the open labor market, and we so find. Further, we find that employee's inability to compete for work in the open labor market is a result of the primary injury in combination with his preexisting disability. We conclude, therefore, that the Second Injury Fund is liable for permanent total disability benefits at the stipulated weekly compensation rate of $237 .81.

Future Medical Care

The parties do not contest the administrative law judge's finding that the date of maximum medical improvement is November 13, 2008. However, employee continued to have significant symptoms up to the date of hearing. Dr. Volarich credibly testified via deposition that future treatment for pain relief is anticipated. Transcript, pages 574, 578-79.

Employee continues to suffer pain and debilitating effects of the work injury. He reported recurring headaches, approximately twice a month, lasting up to an hour. He reported sharp pain in his right eye of moderate to severe extent. He reported pain from his right shoulder into his hands, which remains present most of the time and is of a moderate to severe degree. In addition, he described cramping, numbness and tingling in his right hand and fingers, as well as constant pain in the left hip. He continues to have problems with stability in his left knee, pain and swelling. We find it is reasonably probable that based on his continuing medical issues, future medical care to relieve and/or cure the effects of the work injury will be required.

Attorney's Fees

The administrative law judge's award criticizes employee's attorney (See Award, page 5), for deficiencies in preparation of "proposed findings." We are concerned that this creates an appearance of impropriety in that it may be argued that employee's award was reduced on a punitive basis, because of the actions of his attorney. To the extent a failure of advocacy results in a deficient record, it is beyond the proper scope and power


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of an administrative law judge or this Commission to remedy the defect. It remains our duty however, to perform a thorough and impartial review of the record before us.

We are not unsympathetic to the concerns voiced by the administrative law judge - the five page brief filed on behalf of the employee/petitioner to the Commission was in no way thorough or particularly helpful to our review. Nevertheless, attorney for the employee did create an adequate hearing record and his efforts were necessary to achieve the outcome herein.

Section 287.260 RSMo provides, in relevant part:

[ ... ] the division or the commission may allow as lien on the compensation, reasonable attorney's fees for services in connection with the proceedings for compensation if the services are found to be necessary ... All attorney's fees for services in connection with this chapter shall be subject to regulation by the division or the commission and shall be limited to such charges as are fair and reasonable and the division or the commission shall have jurisdiction to hear and determine all disputes concerning the same.

We find the fair and reasonable value of employee's attorney's services to be 15% of the compensation awarded.

Conclusion

We modify the award of the administrative law judge as to the issues of: (1) medical causation; (2) permanent partial disability ratings; (2) liability of the Second Injury Fund; (3) future medical expenses; and (4) attorney's fees.

Employee is entitled to, and employer is hereby ordered to pay, permanent partial disability benefits in the amount of $237.81 for 145.7 weeks, after the date of maximum medical improvement, November 13, 2008.

Employee is entitled to, and the Second Injury Fund shall pay, permanent total disability benefits in at the rate of $237.81 per week, beginning 145.7 weeks after November 13, 2008, and continuing for employee's lifetime, or until modified by law.

Employee is entitled to, and employer/insurer is ordered to provide, the costs of future medical that may be reasonably required to cure and relieve the effects of the work injury.

The award and decision of Administrative Law Judge Gary L. Robbins, issued February 27, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

This award is subject to a lien in favor of James M. Turnbow, Attorney at Law, in the amount of 15% for necessary legal services rendered.


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

Given at Jefferson City, State of Missouri this -~!O~fh~_day of July 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

~ ' John J. Larsen, Jr., Chairman

DISSENTING OPINION/CONCURRING IN PART Reid K. Forrester, Member

Attest:


DISSENTING OPINION/CONCURRING IN PART

I dissent from the majority in its modification of the administrative law judge's Final Award regarding: the medical causation issue; disability ratings; finding of permanent total disability; Second Injury Fund liability; future medical care, and its adoption of the employee's experts as more persuasive. I concur only to the extent that a 15% attorney's fee award is fair and reasonable under the circumstances. Aside from the attorney's fee issue, I agree with the result found by the administrative law judge and would affirm his award of 5% permanent partial disability to the employee's head and body as a whole; no finding of permanent total disability; no Second Injury Fund liability; and no future medical care.

I believe that the briefing submitted shows a lack of effort on the part of employee's attorney. However, I believe this resulted in the majority members of the Commission feeling compelled to take on a role of advocate for the employee, in the absence of his lawyer's best effort. I do not think this is an appropriate role for the Commission to undertake. The parties' submissions to the Commission should stand on their own, without the need for the Commission to take on the duty of buttressing the position of one party over the other.

I am convinced that employee has not proven his case on the extent of compensable injuries he claims. I find employer's experts more persuasive. The administrative law judge does not make credibility findings in regard to the employee. However, I find that employee had difficulties in consistent reporting of his injuries and the onset of his symptoms throughout the medical records and his testimony. I would find this diminishes his credibility and his claim of injuries beyond the head and body as a whole, as found by the administrative law judge. This diminished credibility further contributes to my opinion that employee did not prove his case to the extent found by the majority.

I concur in the reasoning of the Commission majority regarding the 15% attorney's fee.

Conclusion

I would affirm the results stated in the Final Award of administrative law judge Gary L. Robbins, in regard to a 5% permanent partial disability to employee's head and body as a whole with no Second Injury Fund liability and no future medical care awarded. I would reduce the attorney's fee to 15%.

Reid K. Forrester, Member

Employee: Ulysses Robinson, Jr. Injury No. 07-133452

ISSUED BY DIVISION OF WORKERS' COMPENSATION

FINAL AWARD

Employee: Ulysses Robinson, Jr. InjuryNo. 07-133452

Dependents:

Employer:

Additional Party:

Insurer:

Appearances:

NIA

The Loxcreen Company, Incorporated

Second Injury Fund

Capital City Insurance Company

James M. Turnbow, attorney for the employee. James E. Lar.amore, attorney for the employer-insurer. Rachel R. HatTis, atto1ney for the Second Injury Fund.

Hearing Date: November 28, 2016 Checked by: GLR/kg

SUMMARY OF FINDINGS

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? November 2, 2007.

5. State location where accident occmTed or occupational disease contracted: Pemiscot County, Missouri.

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

7. Did the employer receive proper notice? Yes.

8. Did accident or occupational disease arise out of and in the course of the employment? Yes.

9. Was claim for compensation filed within time required by law? Yes.

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10. Was the employer insured by above insurer? Yes.

11. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee suffered a "trip and fall."

12. Did accident or occupational disease cause death? No.

13. Parts of body injured by accident or occupational disease: Body as a whole concerning the head and face.

14. Nature and extent of any pe1manent disability: See Award.

15. Compensation paid to date for temporary total disability: $25,089.06

16. Value necessary medical aid paid to date by the employer-insurer: $91,301.66.

17. Value necessary medical aid not furnished by the employer-insurer: NIA.

18. Employee's average weekly wage: $356.71

19. Weekly compensation rate: $237.81 for all purposes.

20. Method wages computation: By agreement.

21. Amount of compensation payable: See Award.

22. Second Iajmy Fund liability: None.

23. Future requirements awarded: See Award.

Said payments shall be payable as provided in the findings of fact and rulings oflaw, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of25% of all payments hereunder in favor of the following attorney for necessaiy legal services rendered to the employee: James M. Turnbow.

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STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW

On November 28, 2016, the employee, Ulysses Robinson, Jr., appeared in person and with his attorney, James M. Turnbow for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, James E. Laramore. Assistant Attorney General Rachel R. Harris represented the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings oflaw, are set forth below as follows:

UNDISPUTED FACTS:

1. The Loxcreen Company, Incorporated was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Capital City Insurance Company.

2. On November 2, 2007 Ulysses Robinson, Jr. was an employee of The Loxcreen Company, Incorporated and was working under the Workers' Compensation Act.

3. On November 2, 2007 the employee sustained an accident arising out of and in the course of his employment.

4. The employer had notice of the employee's accident. 5. The employee's claim was filed within the time allowed by law. 6. The employee's average weekly wage was $356.71, resulting in a compensation rate of

$237.81 for all purposes. 7. The employer-insurer paid $91,301.66 in medical aid. 8. The employer-insurer paid $25,089.06 in temporary disability benefits. 9. The employee had no claim for previously incuned medical bills.

10. The employee had no claim for mileage. 11. The employee had no claim for temporary disability benefits.

ISSUES:

1. Medical Causation. 2. Future Medical Care. 3. Permanent Partial Disability. 4. Permanent Total Disability. 5. Liability of the Second Injury Fund for either permanent partial or permanent total

disability. 6. Maximum Medical Improvement.

EXHIBITS:

The following exhibits were offered and admitted into evidence:

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Employee Exhibits:

1. Medical records from 1st Choice Physical Therapy. 2. Medical records from Orthopaedic Associates. 3. Medical records from Advanced Pain Centers. 4. Medical records from Barnes-Jewish Hospital. 5. Medical records from The Otihopaedic Clinic. 6. Medical records from Cape Imaging. 7. Medical records of Richard Cape. 8. Medical records ofDePaul Health Center. 9. Medical records from DePaul Medical Group. 10. Medical records from Doctors Clinic. 11. Medical records from Dyersburg Regional Medical Center. 12. Medical records from Bone & Joint Clinic. 13. Medical records from Swinger, McKillip & Culver. 14. Medical records from Metro Imaging. 15. Medical records from Pemiscot Memorial Health Systems. 16. Medical records from Pemiscot Primary Care Center. 17. Medical records from Pro of Kennett. 18. Medical records from St. Francis Medical Center. 19. Medical records from Twin Rivers Regional Medical Center. 20. Medical record of David T. Volarich, D.O. 21. Medical records from West Tennessee EMG Clinic. 22. Medical records from Convenient Care. 23. Vocational repotis of James M. England, Jr. 24. Deposition of David T. Volarich, D.O. 25. Deposition of James M. England, Jr. 26. Stipulation for Compromise Settlement in Case 92-058526. 27. Stipulation for Compromise Settlement in Case 04-076731. 28. Employee's List of Medications.

Employer-Insurer Exhibits:

A. Deposition of Michael P. Nogalski, M.D. B. Deposition of Robert J. Bernardi, III, M.D. C. Deposition of Gary Weimholt.

The Second Injury Fund Exhibits:

None

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW:

STATEMENT OF THE FINDINGS OF FACT:

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The employee, Ulysses Robinson, Jr., was the only witness to personally testify at trial. All other evidence was presented in the form of written records, medical records or deposition testimony.

At the conclusion of the trial the parties were instructed to prepare proposed findings that would be due on December 30, 2016. The parties were provided specific instructions as to the format of their proposed findings. In addition the pat1ies were specifically instructed to provide specific information on each of the employee's injuries.

Counsel for the Second Injury Fund sent an e-mail dated December 30, 2016 advising that they would not be filing proposed findings.

Counsel for the employer-insurer filed a 26 page proposed finding on December 29, 2016.

Counsel for the employee filed the employee's proposed finding on January 3, 2017. His Statement of the Findings of Fact consisted of four paragraphs containing 19 lines of typed material. His Rulings of Law consisted of four paragraphs containing 12 lines of typed material. The proposed findings did not follow the Court's orders and did not provide specific information as to the employee's specific injuries. His "effort" can be summarized by his statements that "it is obvious."

The following information is a partial chronological listing of some of the medical problems/treatment that the employee has received both before and after November 2, 2007. It is a partial compilation taken from the evidence presented as not every entry was repeated. Medical records can be refened to for further detail. Some items may be duplicated elsewhere. The listing is intended to provide a general outline of the medical care/problems/disabilities that the employee has received and when he received the pat1icular cai·e or incuned the particular disability.

Medical conditions and disabilities that existed prior to November 2, 2007

-5/16/92- injured left shoulder when steadying a laundry cart. -11/20/00-right CTS-Dr. Bourland. -1/15/01-hand strain. -4/18/01-the employee complained of bilateral numbness in hands and a new complaint of bilateral shoulder pain- Dr. Bourland. -5/14/01-Dr. Holcomb-right shoulder pain going into neck and down right arm. Diagnosis was acromioclavicular joint at1hrosis and rotator cuff impingement tendinitis. -8/29/02-Dr. Landty-right knee pain for months. Diagnosis was degenerative at1hritis of the right knee, degenerative at1hritis of the left shoulder and left elbow pain. -3/31/04-chest pain, uncontrolled hypet1ension, shortness of breath and dizziness. -9/15/04-Dr. Ritter-bilateral hand pain, left elbow pain radiating into the shoulder. The employee was hospitalized 5 years earlier for heart disease, hypertension, osteoat1hritis. -10/21/04-Dr. Ritter perfotmed left cubital tunnel surgery and left carpal tunnel surgery. -2/4/05-Dr. Ritter diagnosed persistent left elbow and left wrist pain. X-ray showed osteophytes, therefore osteoai1hritis was diagnosed.

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-3/4/05-Dr. Ritter assessed right wrist symptoms from synovitis and left elbow degenerative arthritis. Surgery was done. -6/7/05-Dr. Ritter diagnosed bilateral wrist pain. -7 /05-X-rays of the cervical spine showed degenerative disc disease at C5-6 and C6-7 which caused the employee's neck pain. -9/23/05-Dr. Ritter reported that muscular pain in the forearms persisted. -1/23/06-Dr. Ritter-The employee repotted worsening right arm pain. -2/06-Dr. Ritter diagnosed left cubital and carpal tunnel ~yndromes and right side carpal tunnel syndrome. -3/2/06-NCV studies showed bilateral CTS. The employee declined surgery. -11/2/07-The employee was injured at Loxcreen which is the subject of this case.

The employee received disability settlements for prior work injuries: -Case 92-058526 shows that the employee injured his left shoulder on May 16, 1992. He settled his case by stipulation on April 25, 1995. He settled his claim for 12 Y, % permanent pattial disability of the left shoulder. -Case 04-07673 lshows that the employee had injuries as of July 2, 2004. He settled his case by stipulation on May 19, 2006. He settled his claim for 30% permanent partial disability of the left upper extremity including his wrist and elbow and 11 Y.% permanent partial disability of the right hand.

Medical conditions and disabilities that occuned after the accident of November 2, 2007, whether related to the November 2, 2007 accident or not.

-11/2/07-The employee was taken to Pemiscot Memorial Hospital and diagnosed with hand contusion and hypertension. CT scan done due to ophthalmological considerations. -11/6/07-Dr. Cape assessed traumatic iritis with a blown out fracture of the orbit. CT was negative for fracture. The employee returned to full duty in one week. -11/16/07-Dr. Huff diagnosed right shoulder contusion rotator cuff teat· and AC joint arthritis. -11/29/07-Dr. Huff added left hip contusion and strain to his previous diagnoses and ordered an MRI of the right shoulder. -12/6/07-MRI revealed tendinosis of the supraspinatus with a chronic tear, Grade II-III impingement, mild degenerative osteoarthritis of the AC joint and irregularity of the cottical margin. -1/31/08-After EMO testing, Dr. Huff added right wrist to his diagnosis and recommended surgery. Diagnoses were right upper arm contusion status/post trauma, right shoulder rotator cuff acromioclavicular joint atthritis, left hip contusion/strain, and right hand carpal tunnel syndrome. There was no mention of the back or knee. -2/20/08-Dr. Huffperfotmed right shoulder repair of the rotator cuff with acromioplasty and distal clavicle excision of the right shoulder and right carpal tunnel surgery. Post-operative diagnoses were impingement syndrome, osteoarthritis AC joint, ruptured rotator cuff right shoulder, and carpal tunnel syndrome of the right hand. -4/23/08-Dr. Huff returned the employee to surgery for manipulation of the right shoulder. Postoperative diagnosis was frozen shoulder. -5/22/08-the employee complained of left hip discomfort and swelling in the right knee.

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-7/10/08-MRI of the left hip indicated mild degenerative disc disease of the lower lumbar spine and a small benign bone island at the left iliac. Dr. Huff diagnosed persistent arthralgia of the left hip and internal derangement and chondromalacia of the left knee and recommended surgery. -7 /3 0/08-MRI of the right knee revealed a degenerative tear of the medical meniscus and chondromalacia of the patella, medial, and lateral joint compartments. -8/6/08-Dr. Huff performed left knee artln·oscopic chondroplasty of the patella, medial formal condyle, and lateral tibial plateau as well as a partial medial meniscectomy. Post-operative diagnosis was internal derangement and chondromalacia of the left knee. -10/08-a Baker's cyst required aspiration followed by injection. Dr. Huff noted muscular atrophy and edema in the left knee. Dr. Huff planned to rnle out neuritis due to right hand numbness and tingling. -11/13/08-Dr. Huff put the employee at MMI and assigned permanent restrictions of lifting no more than 20 pounds and standing/walking no more than two hours in an eight hour shift. -12/15/08-the employee complained of headache radiating into his neck. Diagnosis was headache and back pain. -4/22/09-the employee complained of a rash, chest pain, neck pain radiating to the right fingers and giving way of the right knee, hip pain, swollen feet, spasms in the right hand and shortness of breath. Assessments were carpal tunnel syndrome, knee surgery, dermatitis, and erectile dysfunction. Two months later complaints included pain in the left arm and shoulder. -7/23/09-the employee complained of back pain. X-rays of the lumbar spine showed degenerative changes at L4-5 and LS-SI. An MRI study of the thoracic spine showed degenerative changes. -9/2/09-ultrasound revealed a renal cyst. -10/1/09-Dr. Naushad saw the employee for complaints of chronic neck and low back pain with left upper extremity radicular symptoms and numbness/tingling in both hands. Dr. Naushad diagnosed osteoarthritis of the left lower extremity, pain in the right shoulder, spondylosis with degenerative disc disease of the cervical and lumbar spines, and a left brachia! neuritis or radiculitis. -10/14/09-Dr. Naushad and Frank Villamayor saw the employee for pain in his back, right shoulder and the patella that was constant and severe and interfered with most activities of daily living and sleep. Diagnoses were cervical and lumbar discogenic pain/facet aithropathy/degenerative disc disease/spondylosis, osteoarthritis of the shoulder and knee joints and hype1tension. -11/13/09-the employee was admitted to St. Francis Medical Center for chest pain and rash. Diagnoses included chest pain likely due to uncontrolled hypertension due to stopping medications, uncontrolled hype1tension due to recently stopping medications due to concern of skin rash, and pseudofolliculitis barbae. -11/17 /09-Diagnoses were folliculitism, osteoaithritis, gastritis, hype1tension, hyperlipidemia, lumbar disc disease, right shoulder pain, status/post bilateral carpal tunnel surgery, left elbow pain, and status/post surgery. Report said that the employee was physically impaired and that he could not do all of his physical work. -3/31/10-the employee's primary care physician noted pain in the back and joints. Assessments included hype1tension, lumbar disc disease, anxiety disorder, gastritis, venous insufficiency, rhinitis, back pain, and muscle spasms. -06/20 I 0-the employee staited getting social security disability benefits.

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-9/22/10-Dr. Volarich evaluated the employee for the first time. -5/8/12-the employee was admitted to St. Francis Medical Center. X-rays of the right shoulder revealed atypical appearance involving the right humeral head. The possibility of a coexistent acute fracture could not be ruled out. CT of the cervical spine showed loss of the normal cervical lordosis suggesting paraspinal muscle spasms, multilevel ventral spondylitic changes, and multilevel central canal and neural foraminal stenosis. Final diagnoses included right shoulder bursitis and right cervical radiculopathy. -5/23/12-Dr. Bums saw the employee for severe right arm and neck pain. The employee reported that he had been disabled due to an injury to his low back. The assessment was chronic spinal pain with a cervical radicular pain pattern on the right and left radicular pain pattern from the lumbar spine. The employee was continued on pain medications. -6/20/12-Dr. Bums indicated that the only positive response had been to Oxycodone. -7/23/12-the employee did not show up for appointment with Dr. Burns. -10/8/12-Dr. Hayes saw the employee and diagnosed hypertension, degenerative joint disease, and folliculitis barbae. -10/13/12-Dr. Hayes saw the employee for reported pain and swelling in fingers. Dr. Hayes thought DJD was likely affecting his hands, shoulder, knees and back. -11/13/12-MRI of the right shoulder showed a full thickness supraspinatus tear with marked muscle atrophy and mild retraction. The employee was referred for otthopedic referral. -11/30-12-Dr. Hayes saw the employee for hypertension, right shoulder pain, and rotator cuff injury. -11/14/13-Dr. Volarich saw the employee for the second time. Dr. Volarich said that his opinions from 2010 did not change. It was his opinion that the employee had subsequent deterioration and worsening difficulties with his right shoulder, spine, and lower extremities since the evaluation three years earlier.

Dr. Volarich

Dr. Volarich was retained by the employee's counsel to evaluate the employee. He saw the employee on September 22, 2010 and November 14, 2013 and prepared repotts of the same dates. Dr. Volarich authored the second repott after reviewing additional medical records. He testified by deposition on April 16, 2014.

Dr. Volarich provided his diagnoses after the first evaluation: - the employee had multiple injuries when he fell. -right facial contusion, residual headaches and facial pain. -right eye traumatic iritis. -right rotator cuff internal derangement due to aggravation of impingement and rotator cuff repair that required two surgeries. -right CTS that required surgery. -left hip pain. -left knee internal derangement with meniscus surgery. -low back pain due to abnormal weight bearing.

At that time the employee reported his present conditions:

Page 8


-headaches. -right shoulder soreness and pain radiating into the hand. -right hand has weakness and swells. -left hand swells and has pain. -left hip has pain. -he uses a cane to walk. -pain and weakness in both knees. -left shoulder pain since the injury. -low back has spasms that radiate down both legs. Prior to 11/2/07 the employee reported that he did not have trouble with his neck or back. -the employee rated his problems from worse to better as low back, right shoulder and hands, left shoulder, head, left hip and bilateral knee pain.

Dr. Volarich reviewed medical records and perf01med a physical examination. He provided his diagnoses from the injury of 11/2/07: -right face contusion with residual facial pain and headaches. -posttraumatic right eye iritis-resolved. -internal derangement of the right shoulder due to aggravation of impingement and rotator cuff tear-status post open rotator cuff repair. -right frozen shoulder syndrome-status post manipulation under anesthesia. -aggravation right wrist carpal tunnel syndrome-status post carpal tunnel release. -left hip contusion with residual trochanteric bursitis. -left knee internal derangement-status post arthroscopic chondroplasty of all 3 compartments with partial medial meniscectomy. -back pain secondary to abnormal weight bearing.

Dr. Volarich also provided diagnoses that he said pre-existed 11/2/07: -left cubital tunnel syndrome-status post ulnar nerve transposition. -left wrist carpal tunnel syndrome-status post open carpal tunnel release. -mild right elbow cubital tunnel syndrome-status post non-operative treatment. -mild right wrist carpal tunnel syndrome-status post non-operative treatment. -right shoulder impingement with partial rotator cuff-status post non-operative treatment. -right knee degenerative arthritis. -left shoulder AC separation with strain/sprain.

As to causation, he reported that the accident of 11/2/07 is the substantial contributing factor as well as the prevailing or primru.y factor causing: -the rlght facial contusion. -the right eye traumatic iritis. -the right shoulder internal derangement that required two surgical repairs. -the aggravation of the right wrist carpal tunnel syndrome that required surgical repair. -the left hip bursitis. -the left knee internal derangement that required surgical repair. -the back pain syndrome secondary to abnormal weight bearing that required consetvative treatments.

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Dr. Volarich also reported that the employee had reached MMI.

Dr. Volarich provided disability ratings from the 11/2/07 accident: -5% of the face. -35% of the right upper extremity at the shoulder. -30% of the right upper extremity at the wrist. -15% of the left hip. -35% of the left knee. -10% of the body as a whole regarding the back.

Dr. Volarich also provided disability ratings that pre-existed 11/2/07: -30% of the left upper extremity at the elbow due to cubital tunnel syndrome that required surgery. -30% of the left upper extremity at the wrist due to carpal tunnel syndrome that required surgery. -5% of the right upper extremity at the elbow due to non-operated mild cub ital tunnel syndrome. -25% of the right upper extremity at the shoulder due to impingement and rotator cuff tear that required non-operative treatment. -10% of the right knee. -15% of the left shoulder due to AC separation and strain.

Dr. Volarich further opined that: -the combination of the employee's disabilities creates a greater disability that the simple sum or total of each separate injury/illness, and a loading factor should be added. -the employee is unable to engage in any substantial gainful activity nor can he be expected to perfo1m in an ongoing work capacity in the future. -the employee cannot be expected to perform in an ongoing basis 8 hours per day, 5 days per week. -the employee is unable to continue in his line of employment at Loxcreen nor can he be expected to work on a full-time basis in a similar job. -the employee is permanently and totally disabled as a direct result of the work-related injuries of 11/2/07 in combination with his pre-existing medical conditions. -the employee will require ongoing care.

Dr. Volarich provided fu11her comments and opinions after he saw the employee again on November 14, 2013. He noted that: -the employee had received additional treatment since he last saw him. -on 5/18/12 the employee was seen in the ER for complaints ofright shoulder pain that radiated to his neck, as well as loss of abduction and loss of internal external rotation. X-rays of the right shoulder were obtained and read to show post-traumatic changes and a possible acute fracture. -a CT scan of the employee's cervical spine was obtained and revealed a mild protrnsion at C2-3, evidence of a spasm, and multi-level spondylosis that caused some central canal and neuroforaminal stenoses. -the employee was diagnosed with right shoulder bursitis and a right cervical radiculopathy, and prescribed a Medrol Dosepak and Percocet.

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-an MRI of 11/13/12 showed a full thickness tear of the supraspinatus and marked atrophy and mild retraction but no impingement. The employee was refened to an orthopedist. -the employee said he was unable to follow up with a doctor due to financial reasons. -the employee denied any new injury to his right shoulder.

The employee reported to Dr. Volarich that prior to 11/2/07 he had: -some pain from his neck going along his shoulder girdle into the superior anterolateral aspect, worse with abduction. He noted a prior diagnosis of AC joint arthrosis and impingement, but after injection had few symptoms, and his shoulder girdle pain was overshadowed by his back pain.

Dr. Volarich reported that the employee had subsequent deterioration to his right shoulder, spine and lower extremities since he saw him 3 years ago.

Dr. Nogalski

Dr. Nogalski was retained by the employer-insurer to evaluate the employee's right shoulder and left knee. He saw the employee on November 20, 2009 and May 19, 2015. Dr. Nogalski prepared reports dated November 20, 2009 and May 19, 2015. He testified by deposition on October 5, 2015.

Dr. Nogalski interviewed the employee, conducted a physical examination and reviewed medical records, just as every other physician.

Dr. Nogalski reported the employee's description of his accident as: -he fell across a crane and was pinned underneath it. -he hit his right side first and then hit both of his shoulders and both of his knees. -he then hit "across here" pointing to his anterior pelvis and hip regions. -he hit the floor and the lower pa1t of his body hit first, and the upper pait slammed to the floor and he passed out. -he went to the ER and did not feel any pain except in his head.

Dr. Nogalski repo1ted that in his first evaluation the employee told him that he had the following symptoms since the shoulder surgery: -difficulty with stairs -he can hardly stand on his leg. -his right shoulder hurts him all of the time. -his right side is numb and cold. -his right arm and leg fil'e cold and numb. -his whole right side is "numb like an icebox." -he has pain in his back. -his back is worse and is devastating. -he has muscle spasms in his back.

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The employee also told him that he had prior surgeries to his left knee, right shoulder, right hand, left hand and left elbow.

Dr. Nogalski reviewed medical records and pointed out that: -in a report where the accident was described, there was no mention of any problems regarding the employee's extremities. -on November 16, 2007 at Dr. Huffs office there were no specific complaints of knee pain. -on January 31, 2008, Dr. Huff did not document any hip problems or issues.

After his first evaluation, Dr. Nogalski reported his impressions and recommendations: -status post right shoulder rotator cuff repair and left knee arthroscopy with generalized deconditioning. -the employee does not require any further medical treatment for his injuries. -the employee is at MMI. -it is not clear at all that he sustained injuries to his right shoulder and left knee as related to his claimed 11/2/07 injury. -15% PPD of the right shoulder. -8% PPD of the left knee. -the employee is generally deconditioned. -Dr. Huffs restrictions allow work at limited duty. -FCE needed.

Dr. Nogalski evaluated the employee the second time on May 19, 2015. At that time the employee reported: -he has not had any further care for his knee or shoulder from a specialist. -he has been seeing his primary care physician/Dr. Arshad for his knee and he and gets medication. -he had problems with his neck and back. -that his shoulder and knee were worse than the last time. He said arthritis has set in and he still has a tom rotator cuff. -he has been on SS disability since 2010. -he has constant pain and muscle spasms in his right shoulder, especially when it gets cold. -he has had no new injuries. -he has not been working. -his left knee has popped-it feels as though the knee rolls out and it has swelling. It feels like a slipped joint. -he has difficulty walking; that is also due to his back and neck. -he is sedentary and does do much walking due to his legs.

Dr. Nogalski commented on the differences in the nature of the accident between what the employee told Dr. Bernardi, himself, and what Dr. Volarich indicated two days after the employee had seen Dr. Nogalski. The repott to Dr. Bernardi was that the employee fell forward landing on the right side of his face, shoulder and chest and his knee struck the concrete floor and that his right hip struck a "boom."

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Dr. Volarich reported the accident as "in the process of jumping back over, one of his legs caught the top edge and caused him to fall forward toward the ground. This happened so suddenly he did not have the opportunity to catch his fall with his hands and he ended up draped over the piece of equipment with his waist bent forward having struck the right side of his face on the ground in front and with his feet/legs draped over and on the ground behind. The only amount of protection that he could provide for himself was to tly to twist to the right."

Dr. No gal ski gave his impressions after his second evaluation: -right shoulder pain with decreased motion- post rotator cuff repair. -status left knee arthroscopy with some degenerative arthritis. -the employee's symptoms are out of proportion as to his right shoulder and left knee. -his findings are most consistent with cervical spondylosis and cervical myelopathy which are conditions Dr. Bernardi identified. -these conditions would reasonably cause the employee's debilitating conditions. -right shoulder findings could relate to a central spinal myelopathic process. -left knee complaints out of proportion due to a simple arthroscopy-there are residual degenerative changes in the knee. -the right shoulder or the left knee issues do not contribute significantly to severe disability in the employee's case. -the big picture appears to relate to a central process which is likely cervical spondylosis and myelopathy.

He also provided causation opinions: -the mechanism of injury and medical records do not support that the employee had a specific strain to his shoulder to cause a rotator cuff tear- "merely striking the right arm and right side of the body would not be a reasonable mechanism to cause a rotator cuff tear." -the mechanism of injuty regarding the left knee having an acute trauma is absent in early reports. -the right shoulder and left knee conditions are not related to the work injury. -the employee does not require any additional care related to the claimed work injmy of 11/2/07. -the employee is at MMI regarding his claimed injmy to his right shoulder and left knee. -there is a more central process going on that affects his general medical condition. Fmther work up is reasonable. -the passage of time has resulted in the employee's further disability, either from a deconditioning standpoint or some progressive effects of a more centralized neurologic process. -the employee's disabilities do not stem significantly from his left knee and right shoulder.

During his deposition testimony, Dr. Nogalski was asked to comment on the employee's December 6, 2007 MRI to his right shoulder. He testified that the MRI: -showed tendinosis and a chronic tear and degenerative aiihritis. Tendinosis is a condition of age where paitial thickness tears are generated. - the MRI did not show an acute tear to the tendon. -the surgical report of Dr. Huff dated 2/20/08 revealed nothing that indicated acute damage or tear.

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Dr. Nogalski was also asked to comment on the July 3, 2008 MRI of the employee's left knee. He testified that it showed a horizontal tear of the medial meniscus which is essentially a split in the meniscus and is typical of a degenerative tear. -the surgical report of Dr. Huff dated 8/6/08 noted chondromalachia and a tear of the medial meniscus that the MRI showed. - the surgical report and the MRI were consistent. -there was nothing in the MRI or the operative note showing any acute damage to the knee.

Dr. Nogalski gave his Impression as: -status post right rotator cuff repair. -status left knee arthroscopy. -generalized deconditioning. -no specific neurologic findings. He further testified that he did not have an opinion as to whether the right shoulder or left knee condition was related to the employee's accident. Irrespective of causation, on November 20, 2009 he rated the employee's right shoulder as having a 15% permanent paitial disability and his left knee as having an 8% permanent partial disability. He stated that the employee did not need any more medical cai·e as a result of the work accident.

Dr. Nogalski gave updates after his second evaluation of the employee which was about four years later. He testified that the employee repotted: -he did not recall any further treatment for his shoulder or knee. -he had been seeing his primary care doctor for his knee and was getting medication for it. -he had problems with his neck and back. -he was seeing Dr. Arshad. -he was worse than he was from the last time and aithritis had set in. -he still had a torn rotator cuff. - he had been on SS disability since 2010. -he had constant pain and muscle spasms in the right shoulder. -he had not been working. -his left knee popped-felt like he had a slipped joint. -he had difficulty walking but that was due to his back and neck. -he was sedentaiy and did not do much walking because of his legs.

Based on everything he had considered, Dr. Nogalski was asked to provide his opinions. He testified that the employee had right shoulder pain with decreased motion, status previous rotator cuff repair and was status left knee aithroscopy with some degenerative arthritis.

He was asked if the right shoulder and left knee were related to the work accident. He testified that: -the employee suffered from cervical spondylosis which is a central condition that causes problems in all extremities as well as gait and posture. -his symptoms were way out of proportion to anything that would explain the symptoms from a regional or local standpoint in the knee and the shoulder.

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-the employee needed a work up for cervical myelopathy which is a condition where the spinal cord is compressed significantly in the neck area after exiting the skull and brain area. -he did not believe that any of these conditions were related to the claimed work injury. -he did not believe that the right shoulder or left knee issues contributed significantly to his significant problems in terms of mobility and function. -the right shoulder and knee conditions were not related to the 11/2/07 accident. -the mechanism of injury described in the early medical records does not support that there was a specific strain or injury to the shoulder that would cause a rotator cuff tear. It is common for there to be rotator cuff tears or abnormalities in the shoulder for 40-50 year olds-there are patients that have full thickness and chronic long-standing tears that function quite well with some occasional shoulder issues. -there was no support in the medical records that identified that there was an injury to the knee at the time of the accident in 2007. The operative findings are reasonably those of a degenerative knee condition. There is not any suppott in the previous medical records that identified that there was indeed an injury to the left knee at time of the 11/2/07 event. -the employee does not need any additional medical care due to the injury. -the employee is at MMI.

Dr. Nogalski maintained his prior permanent partial disability ratings but testified they are not related to the claimed event.

Dr. Bernardi

Dr. Bernardi was retained by the employer-insurer to evaluate the employee as to his low back and hip. He saw the employee on January 6, 2015 and prepared a report of that date. He testified by deposition on October 16, 2015.

Dr. Bernardi indicated that the employee told him that: -he returned to work for about one month after his accident and has had no jobs since then. -he was approved for social security disability in 2010. -he had had no back or hip surgeries and denied any such problems or symptoms prior to his November 2, 2007 accident. He reported that he had not seen a doctor or chiropractor with complaints to these areas. -he reported prior carpal tunnel release.

Dr. Bernardi had the employee describe the accident to him. Dr. Bernardi repotted the employee as indicating that on 11/2/07 he was wheeling a cart. It began rolling away and moving from side to side. He tried to gain control and had to jump across a piece of metal that was about 18" high. He tripped over this "boom" and fell forward landing on the right side of his face, shoulder and chest. He says his knees struck the concrete floor. He suggests that his right hip struck the boom although the doctor said he is not certain how this could have happened. The employee reported that at first he had so much pain he could not tell what was what. After a few days it seemed to be concentrated in his shoulders, hands, left hip and low back. Dr. Bernardi reported that the employee is confident he had low back pain within days of the fall.

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Dr. Bernardi reviewed records and provided a chronological summary from 11/2/07 to 4/16/14: -11/2/07-head/face problems reported. -11/5/07-shoulder numbness and tingling in right hand reported. -11/13/07-right shoulder. -11/16/07-right shoulder and right elbow. Thigh symptoms. Occasional back aches, foot swelling and sinus problems. -11/29/07-left hip. -1/31/08-employee scheduled for left knee surgery. -2/18/08-employee scheduled for carpal tunnel and shoulder surgery. -5/22/08-persistent pain in left hip and knee. -7 /14/08-no mention of back pain. -8/6/08-employee had left knee surgery. -8/12/08-employee released to sedentary work. -8/20/08-employee complained of nocturnal hand numbness. No mention of back pain. -10/15/08-employee complained of right hand numbness. -11/13/08-perisitent right shoulder pain, numbness and weakness in right hand. Restrictions. MMI. -12/15/08-principal complaint was neck pain. -4/22/09-variety of complaints-rash affecting head face and chest, chest pain, neck pain radiating to his fingers, hip pain, feet swollen, spasms in right hand, knees gave way, shortness of breath, chest congestion. -6/1/09-left arm pain. -7 /23/09-back pain seems to be mentioned. -7 /28/09-films of back showed degenerative changes. -9/2/09-flank pain. -10/1/09-employee sent to Dr. Naushad. Chronic neck and back pain. Tingling and numbness in both hands. He had received bilateral CTS surgery. -10/6/09-Claim for Compensation does not mention low back pain. -11/7/09-back pain. Alsol/27/10, 2/23/10, and 3/21/10. -4/09/10-employee's deposition. -5/23/12-Dr. Burns-neck and right ann pain. Chronic low back pain. -6/20/12-right arm numbness. -11/5/12-Mr. England said unemployable. -7 /11/13-employee' s deposition taken. -4/16/14-Dr. Volarich deposition.

Dr. Bernardi indicated that he conducted a physical examination of the employee and did not detect any Waddell's signs. He also reviewed images and indicated that the employee had DISH disease.

Dr. Bernardi provided a diagnosis for the employee's back and left hip symptoms: -left anterior pelvic pain of uncertain etiology. -multilevel lumbar degenerative disc/facet disease. -low back and bilateral non-radicular leg pain of uncertain etiology.

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Dr. Bernardi reported that he did not have an opinion as to whether the 11/2/07 work accident was the prevailing factor in producing left hip/anterior pelvic symptoms, as the etiology is undefined. He also indicated that he is unable to conclude that the employee's work accident was the prevailing factor in producing his back, buttock or bilateral leg pain. He indicated that he is very confident that this pain is not being referred from the employee's lower lumbar region. He provided reasons for his opinion:

-"Mr. Robinson's plain x-rays reveal congenital findings and multilevel degenerative disease. What they do not show is an acute or post-traumatic abnormality that can be logically connected to his work accident. If his low back symptoms are secondary to these congenital/degenerative changes, his work accident would not present the prevailing factor in producing them. Instead, it would represent a triggering or aggravating event". -"the precise etiology of Mr. Robinson's symptoms is uncertain. He has back pain. He has bilateral buttock pain. He has circumferential thigh pain that does not go past his knees and for which there is no neurophysiological explanation. This gentleman's complaints are non-specific. Several things could cause them. They could be secondary to a myofascial strain/sprain. They could be due to an aggravation of degenerative disc/facet disease. They could be secondary to degenerative spinal stenosis. They could be secondary to central spinal stenosis for an acute disc herniation. In the absence of a clear cause, it is difficult to conclude they are work-related." -"It would not be unreasonable to obtain an MRI of Mr. Robinson's lumbar spine. It might help discern the etiology of his back and leg symptoms. If the study showed a large disc herniation producing significant stenosis, it might even be argued that the protrusion and his associated symptoms are work-related. In light of the temporal relationship between Mr. Robinson's accident and the onset of his back pain, that would be an argument I would have a difficult time supporting." "This gentleman slipped and fell on 11/02/2007. There was no mention of back pain when he was seen in the emergency room that day. There was no mention of back pain when he followed up with Dr. Arshad on 11/05/2007 and 11/13/2007. When he was first seen by Dr. Huff on 1 Ul 6/2007, there was mention of 'occasional backache' in the Review of Systems section of this note. The context suggests this was a problem Mr. Robinson had prior to 11/02/2007; this is supported by the fact that it was not mentioned anywhere else and was not included in Dr. Huffs diagnoses. As best as I can tell, the first documentation of Mr. Robinson having actual complaints of lower back pain following his work injury was when he saw Dr. Arshad on 12/15/2008. If Mr. Robinson injured his back on 11/02/2007, it should have manifested itself immediately or within hours. I have a hard time imagining the type of back injury that hibernates for 13 months before rearing its head. In fact, Mr. Robinson's own testimony suggests that he was not sure these symptoms were work-related. The notion that Mr. Robinson's knee and hip injury altered his gait and stance in such a way as to produce his back symptoms may sound logical but it is entirely speculative. It can neither be

Page 17


proven nor disproven .... I cannot find a sound medical basis for attributing this man's chronic back complaints to his hip or knee."

Dr. Bernardi commented about the severity of the employee's accident with reference to Dr. Volarich's assessment that his accident was a severe one. He suggested that the characterization comes down to semantics. He reported that the employee's accident meets the definition of minor trauma under the criteria of a 2006 study. That study defined minor trauma as an accident that did not produce a spinal fracture/dislocation, a long bone/pelvic fracture or internal organ injury. His opinion was that the employee's accident met this definition. He further indicated that the study indicated that the development of significant back symptoms is closely linked to the presence of several non-organic factors. He indicated that a history of tobacco use, psychological morbidity and pending litigation much more accurately predicted the development of chronic symptoms.

Dr. Bernardi provided additional opinions: -none of the findings on the employee's X-rays were caused by the 11/2/07 accident-all were preexisting. -if the employee finds his back symptoms sufficiently disabling to warrant additional treatment, it would be reasonable for him to have an MRI of his lumbar spine. However he was not able to attribute the need for this study, or the need for any treatment that may flow from the results, to his 11/2/07 occupational injury. -as the employee's back symptoms cannot be attributed to his work accident, the issue of maximum medical improvement is inelevant. -he cannot find any objective basis for concluding that the employee has any degree of disability related to his lumbar complaints. There is no objective basis for concluding that they necessitate activity restrictions.

Dr. Bernardi opined that there are a constellation of neurological findings that are umelated to the employee's back: -the employee was weak in the intrinsic muscles of his hands. -the employee was markedly hypeneflexic. -his brachioradialis reflexes spread to his fingers. -he had bilateral Babinski signs. -he had bilateral Hoffman's signs. -the range of motion in his cervical spine was more limited in extension than flexion. -the employee has severe cervical myelopathy which may be responsible for his hand numbness.

Mr. England

Mr. England was retained by employee's counsel to evaluate the employee's employability in the open labor market. Mr. England saw the employee October 29, 2012 and prepared reports dated November 5, 2012 and Januaiy 15, 2014. He testified by deposition on May 1, 2014. Like everyone else, Mr. England interviewed the employee, reviewed his deposition testimony, and reviewed medical records in order to arrive at his conclusions.

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The conclusion that Mr. England formulated in his November 5, 2012 report was that: -the employee would not be able to go back to doing any of his past work and if one considers the restrictions of Dr. Huff alone he would be limited to sedentary work activity only, which would eliminate at least 90% of the possibilities out in the work force. -when one adds the restrictions of Dr. Volarich he would be limited from what would be needed to sustain even sedentary work. -if one considers the combination of problems he has with his upper extremities, his lower extremities and his low back he did not think the employee would be able to successfully perform any type of work activity. -considering his age, presentation, limited education and the combination of his medical problems he believed that the employee is totally disabled from a vocational standpoint and is likely to remain that way. Mr. England reviewed additional materials but did not change his opinions in his report of January 15, 2014.

Mr. Weimholt

Mr. Weimholt was retained by the employer-insurer to assess the employee's access to the open competitive labor market. Mr. Weimholt saw the employee on Februaty 29, 2016 and prepared a reported dated April 8, 2016. He testified by deposition on May 31, 2016.

Just as others had done, Mr. Weimholt considered various medical records concerning the employee, including records that documented that the employee had problems prior to November 2, 2007. Some of the records he noted showing treatment: -5/16/92-Barnes-Jewish-injuring left shoulder/strain/conservative care. · 11/20/00-Dr. Bourland-numbness and tingling of right hand. Diagnosed trigger finger and right CTS. -4/18/0 I· Dr. Bourland assigned 0% for bilateral numbness in hands and a new complaint of bilateral shoulder pain. -5/14/01 -the employee complained of right shoulder pain radiating into neck and down right arm. Dr. Holcomb diagnosed acromioclavicular joint artln·osis and rotator cuff tendinitis. Injections were given and the employee returned to work. -8/29/02-Dr. Landty-complaints ofright knee pain. Hist01y ofleft shoulder and left elbow pain. Left shoulder injected without benefit. Loss of motion in left elbow for two years. -3/31/04-chest pain. -9/15/04-Dr. Ritter-bilateral hand pain, left elbow pain into left shoulder, prior heatt disease. -1/7/05-Dr. Ritter returned the employee to work without restrictions. -2/4/05-Dr. Ritter-persistent left elbow and wrist pain, elbow pain due to underlying osteoarthritis. -3/4/05-right wrist symptoms attd left elbow degenerative ruthritis. -3/25/05-Dr. Ritter after surgery allowed the employee to continue full activities. -6/7/05-Dr. Ritter-bilateral wrist pain. -6/28/05-overuse diagnosed. · 7 /21/05-X -rays of cervical spine showed degenerative disc disease causing neck pain. Diagnosed bilateral arm pain.

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-9/23/05-Dr. Ritter noted neurological problems at left cubital and tunnel sites had resolved but muscle pain in foreatm persisted. "Mr. Robinson could remain in his present job but would likely continue to have subjective complaints." Full duty. -1/23/06-worsening right arm neurogenic pain. Left cubital tunnel and carpal tunnel syndromes and right carpal tunnel like syndrome. -3/2/06-nerve conduction showed bilateral carpal tunnel syndrome. -10/14/09-0utpatient at Kennett. Multifocal pain-entire neck, entire back, entire right shoulder-I 0/10 pain. Dr. Naushad gave new meds.

Mr. Weimholt also reviewed and considered the reports of Dr. Bernardi, Dr. Nogalski, Dr. Volarich and the deposition testimony of the employee. He was aware that the employee had applied for social disability compensation in 2007 prior to his accident at Loxcreen. That application was denied. The employee began receiving social security disability compensation in 2010. The employee indicated that he was taking Tramadol at that time and it was mostly for his neck and back pain. Some of the complaints he reported in that time frame were: -he said he had CTS and tennis elbow due to working at Tyson's. He had surgery on hands and elbow. He got a workers' compensation settlement. -he left Tyson's because he could not do the work anymore. -he reported he was having problems with both shoulders in 2001 or 2002. Did not recall surgery. -he could not recall a shoulder injury while working for Barnes Jewish Hospital. -he could not recall if he had any treatment for the body parts injured in the 2007 injury, prior to that time. -he was taking hydrocodone 500 mg twice a day for pain in his hands shoulders and knees. -he says he was having no problems doing his job when working at Loxcreen. -he was deposed again in July 2013, after an mva. The employee ended up underneath the steering wheel. He claims he had no new symptoms and was not hurt in any way. -he fell in the bathtub when trying to get out. He said his knee gave way. He says he got no medical attention but had an X-ray done.

Mr. Weimholt discussed the employee's barriers to employment and noted that: -the employee's work limitations as assessed by different physicians varies. -prior to November 2007 the employee had no permanently imposed work restrictions related to his upper extremities, shoulders, spine, or lower extremities. -Dr. Huff, a treating surgeon, released the employee to work with no lifting more than 20 pounds on occasion and the necessity of being allowed to sit the majority of the workday.

He indicated that Dr. Volarich rep01ied that he did not think the employee could engage in any substantial gainful activity or perform any type of work on a consistent full-time basis. He provided multiple work restrictions for various body patis: -shoulders. The employee had a pre-existing right shoulder impingement. -elbows, forearms, wrist and hands. There were pre-existing conditions affecting the elbows, forearms, wrists and hands, left cubital tunnel syndrome with surgery, left wrist CTS with surgery, right elbow cubital tunnel syndrome with surgery, mild right wrist CTS and right shoulder impingement.

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Mr. Weimholt rep01ted that: Dr. Volarich gave no specific limitation regarding the lower extremities and any related knee complaints; however he did provide ratings and restrictions. Dr. Nogalski evaluated the employee's right shoulder and left knee and reported: -none of the findings on the employee's X-rays were caused by the 11/2/07 accident. They were all present prior to that date. -he could not attribute the employee's back symptoms to the slip and fall at work. He could find no objective basis regarding the employee's back for concluding that they necessitate activity restrictions. -the employee's symptoms are way out of prop01tion to any explanation from a regional standpoint with respect to the left knee and right shoulder. -the employee's findings are most consistent with cetvical spondylosis and cervical myelopathy which Dr. Bernardi also identified. -he did not believe that either the right shoulder or the left knee issues contribute significantly to severe disability in the employee's case. -the mechanism of injury as reported in the early medical records do not support that the employee had a specific slam to his shoulder to cause a rotator cuff tear. Dr. Bernardi reported: -"The precise etiology of Mr. Robinson's symptoms is uncertain" and he stated "he would not be able to conclude that Mr. Robinson's work accident was the prevailing factor in producing his back, buttock or bilateral leg pain."

Mr. Weimholt provided his opinions and conclusion after considering all of the evidence he reviewed. He provided his opinions under the category Impact of physical restrictions: I-the permanent restrictions of Dr. Huff and Dr. Volarich allow for lifting at a light level of work and otherwise a need to be either mostly sedentary or to alternate sitting at one hour intervals and not to stand/walk more than two hours at a time. Dr. Volarich also indicated that the employee should not perform any type of repetitive hand intensive work that would have occutTed at Tyson Foods or at Jimmy Dean Sausage. Mr. Weimholt opines that considering these restrictions there are some occupations which can be performed by the employee. These include phatmacy driver, floral delivery driver, pizza delivery driver, medical laboratory driver, small van driving such as for day-care-centers, elderly centers, driving patients to appointments, as well as some cashier occupations and security guard occupations. 2. Considering the restrictions of Dr. Volarich, he repo1ted that he would obsetve that the upper extremity problems leading to restrictions to minimize repetitive gripping, pinching, squeezing, pushing, pulling, twisting, and rotary motions related to the elbows, foreatms, wrists and hands, are noted to have begun prior to the 2007 injury and began during the time that employee was performing work related to hog and chicken processing. The employee reports that he left the job at Tyson Foods because of his concern over fmther problems with his writs/hands. Research by both public and private organizations has found that jobs in these fields are well known to result in repetitive usage type problems in the hands and upper extremities. The pre-existing conditions related to the hands, wrists, forearms, elbows, do appear to have been a hindrance in the employee's ability to perform work in the open competitive labor market specifically with respects to those hand intensive occupations. Likewise a hist01y of pre-existing right shoulder impingement with partial rotator cuff tear is also understood to have contributed to the

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Employee: Ulysses Robinson, Jr. InjutyNo. 07-133452

seriousness of any subsequent right shoulder injury and as such also would have been a hindrance to the employee's ability to perform work. 3. Mr. Weimholt opines that there are recent job openings in Caruthersville that can be performed within the work restrictions of Dr. Huff and Dr. Volarich. Only if one considers that the employee has to recline on the job would he be unable to perform these jobs. According to Dr. Volarich, that restriction is based on the employee's statement of his complaints. 4. Where the above occupations require a high school diploma, there are remedies available to all job applicants to help them meet specific job requirements. 5. In my opinion a person is not necessarily disabled on the basis of age and that the segment of the labor with the highest growth over the past 20 years has been for persons over 60 years of age. 6. When considering the absence of any pe1manent work restrictions relating to the injury of 2007 as opined by Dr. Bernardi and Dr. Nogalski, including the presence of symptoms "out of proportion to any explanation from a regional standpoint with respect the knee and shoulder," the degree of over presentation of symptoms; or the absence of back complaints for over a year after the 2007 injmy, it is my opinion the employee would have been able to be employed in the open competitive labor market from the point that he was released from care by Dr. Huff and has completed his light-duty work with Loxcreen in 2009. It appears he had been able to attend to full-time duties, though less physical duties, for 8 hours a day 5 days a week during the time he was performing the light duty. 7. It is my opinion from a vocational rehabilitation standpoint that the employee has remained employable in the open competitive labor market since the time he was last employed. Ifhe is unable to perform regular full-time competitive employment it appears to be due to reasons that are not related to the injury of November 2007, but would include his pre-existing carpal tunnel and as Dr. Bernardi indicated that "there may be more going on than a purely physical problem." In this regard, Mr. Weimholt reported that the employee had attempted to obtain social security disability at an earlier time of the basis of hypertension and prostate problems.

RULINGS OF LAW:

1. Medical Causation

Employee counsel's assessment of the employee's case can be summed up in his statement "it is obvious." If you only considered the testimony and opinions of Dr. Volarich, that assessment would be true and the employee would be found to be pe1manently and totally disabled. Unfortunately for the employee's position, other physicians have examined the evidence, provided their testimony and opinions in this case and have come to contra1y opinions. The critical opinions in this case are those of Dr. Volarich supported by Mr. England and those of Dr. Nogalski and Dr. Bernardi supported by Mr. Weimholt.

The decision of the Court is largely based on whether the opinions of Dr. Volarich are more persuasive and supported by the medical records and evidence as opposed to whether the opinions of Dr. No gal ski and Dr. Bernardi are more persuasive and supported by the medical records and evidence.

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The Comi found Mr. Robinson to be a pleasant man. He has worked all of his life. He has had a lot of medical issues in his life with associated problems both before and after November 2, 2007. In addition to the specific injuries and health problems that are revealed in the medical records, the records suggest that the employee was not in the best health and had multiple degenerative conditions both before and after November 2, 2007. The records indicate that a substantial portion of the disabilities that the employee suffers from and his general state of poor health are not caused by or related to his working history.

After a careful reading and rereading of the evidence, and after a careful weighing of the evidence with supporting medical records, the Court finds that the medical opinions of Dr. Nogalski and Dr. Bernardi are more persuasive than the opinions of Dr. Volarich. In addition, the Couti finds that the totality of the medical records support the opinions and conclusion of Dr. Nogalski and Dr. Bernardi and do not support the opinions and conclusions of Dr. Volarich. In addition, the Couti finds the opinions of Mr. Weimholt to be supported by the records and more persuasive than the opinions of Mr. England.

An interesting aspect of this case is that Dr. Volarich asked the employee to rate the severity of his disabilities with respect to his body patis. He rated his back as being the worst of all of his problems. This is important as the employee never claimed that he had any disability specifically to his back in his claim or amended claims. The doctors have made strong statements concerning the condition and disability of the employee's back and whether that condition and disability was caused by the November 2, 2007 accident. It was also pointed out that it was approximately thitieen months after the accident that back problems were being complained about.

Section 287.020 RSMo defines injmy. It states that the term injury is defined to be an injmy which has arisen out of and in the course of employment. "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and the disability."

The burden is on the employee to prove all material elements of the employee's claim. Melvies v. MoITis, 422 S.W.2d, 335 (Mo.App. 1968). The employee has the burden of proving that not only the employee sustained fill accident that arose out of and in the course of employment, but also that there is a medical causal relationship between the accident and the injuries and the medical treatment for which the employee is seeking compensation. Griggs v. A.B. Chance Company, 503 S.W. 2d 697 (Mo.App. 1973). Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause. Brundige v. Boehringer Ingelheim, 812 S.W.2d 200,202 (Mo.App. W.D. 1991).

In analyzing the medical evidence in this case, impo1tance was paid to: -specific medical records outlining an injury/or condition and any disability complained of as occurring as a result of the injmy/or condition. -any temporal relationship or lack thereof between the date of the accident or medical problem and any resultant physical complaints.

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-whether the opinions and judgments of the medical professionals are soundly based on the medical evidence that they reviewed and relied on in formulating their opinions.

Head and body as a whole

The nature of the accident and the medical records make it clear that the employee fell during his November 2, 2007 accident and struck his head causing injury and disability.

Based on a consideration of all of the evidence, the Comt finds that the employee has incuned a 5% permanent partial disability to his head and body as a whole as a result of his November 2, 2007 accident.

Left hip

Based on a consideration of all of the evidence in the case, the Court finds that the employee's accident of November 2, 2007 was not the prevailing factor in causing both the injmy and disability to his left hip for the following reasons: -medical records document that no complaints were made by the employee concerning problems with his left hip until approximately four weeks after the accident, therefore there is not a temporal relationship between the accident and the complaints of problems. -there is no evidence of an acute injmy as the employee repo1ted that he fell on his right, not his left side. -the objective evidence including X-rays and MRI testing were read as normal except for a benign bone island in the left iliac bone. Dr. Huff reported that the mild osteophytes seen on the MRI could be causing his pain and his opinion was persistent arthralgia to the left hip. -the medical opinions of Dr. Volarich were not found to be persuasive as he failed to provide persuasive medical evidence supporting his causation opinion when compared to the medical opinions of Dr. Bernardi wherein he provided specific statements described above as to why he could not say that the employee's accident was the causative and prevailing factor as to the employee's claimed hip problems. He went on to describe multiple causes for the employee's described symptoms. It is for these reasons that the Court finds Dr. Bernardi's testimony to be suppo1ted by medical records and more persuasive than the opinions of Dr. Volarich.

Based on a consideration of all of the evidence in the case, the Comt ftuther finds that the employee failed to meet his burden of proof that his accident ofNovember 2, 2007 was the prevailing factor causing both the medical condition and disability to his hip. The employee has not shown that there is a medical causal relationship between his accident and the disabilities he claims.

Left knee

Based on a consideration of all of the evidence in the case, the Court finds that the employee's accident of November 2, 2007 was not the prevailing factor in causing both the injury and disability to his left knee for the following reasons:

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Employee: Ulysses Robinson, Jr. InjmyNo. 07-133452

- medical records document that no complaints were made by the employee concerning problems with his left knee until approximately six months after the accident, therefore there is not a temporal relationship between the accident and the complaints of problems. -the employee reported that he fell on his right side, yet he is claiming problems with his left knee, therefore the mechanism of the accident does not support left knee injmy. -the testimony and opinions of Dr. Nogalski were found to be more persuasive than the testimony and opinions of Dr. Volarich. -Dr. Nogalski reported that the July 3, 2008 MRI of the left knee showed a horizontal tear of the meniscus which is typical of a degenerative and not an acute injury. Nothing in the MRI showed any acute damage to the knee. -medical records support a finding of degenerative problems with the employee's left knee, however they do not support a finding of an acute trauma from the November 2, 2007 accident.

Based on a consideration of all of the evidence in the case, the Court further finds that the employee failed to meet his burden of proof that his accident of November 2, 2007 was the prevailing factor causing both the medical condition and disability to his left knee. The employee has not shown that there is a medical causal relationship between his accident and the disabilities he claims.

Back

Based on a consideration of all of the evidence in the case, the Court finds that the employee's accident of November 2, 2007 was not the prevailing factor in causing both the injury and disability to his back and body as a whole for the following reasons: -there is not a temporal connection to the employee's back pain and his claimed disability. Medical records show that other than brief mention of back pain at Pemiscot Primary Care that arguably was reported by the doctor and not the employee; the employee did not begin complaining of persistent back complaints until after one year and eight months after the accident. -medical evidence does not support an acute iajmy to the employee's back as a result of his November 2, 2007 accident. -the testimony and opinions of Dr. Bernardi were found to more persuasive than the testimony and opinions of Dr. Volarich. Dr. Volarich equated "back pain syndrome" "secondaiy to abnormal weight beai'ing" and offered no medical basis for this opinion. Dr. Bernardi indicated that none of the findings on the employee's X-rays were caused by the 11/2/07 accident. Dr. Volai'ich failed to explain why any abnormal weight bearing is more likely to cause the employee's complaints than the aging process.

Based on a consideration of all of the evidence in the case, the Court further finds that the employee failed to meet his burden of proof that his accident of November 2, 2007 was the prevailing factor causing both the medical condition and disability to his back. The employee has not shown that there is a medical causal relationship between his accident and the disabilities he claims.

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Right shoulder

Based on a consideration of all of the evidence in the case, the Comt finds that the employee's accident of November 2, 2007 was not the prevailing factor in causing both the injury and disability to his right shoulder for the following reasons: -the testimony and opinions of Dr. Nogalski were found to be more persuasive than the testimony and opinions of Dr. Volarich. Dr. Huff, a treating physician, never addressed the issue of causation. Dr. Volarich acknowledged that the employee had a diagnosis of right shoulder impingement and partial rotator cuff tear that pre-existed his November 2, 2007 accident. His diagnosis was that the accident was the prevailing factor causing internal derangement. Dr. Volarich failed to indicate how the employee's accident caused a new injury or change in the employee's medical causation. Dr. Nogalski indicated that the employee had prior surgeries and suffered from a "generalized deconditioning." He also noted that there was a difference in the description of injury when you compared the accident as described by the employee to different medical personnel. He indicated that the mechanism of injury and medical records do not support that the employee has a specific strain to his shoulder to cause a rotator cuff tear. When asked about the employee's MRI he indicated that it showed tendinosis and a clu·onic tear and degenerative arthritis. He reported that the MRI did not show an acute tear to the tendon and that the surgical report of Dr. Huff did not reveal anything that indicated acute damage or tear. He specifically said that right shoulder condition was not caused by the employee's accident.

Based on a consideration of all of the evidence in the case, the Comt further finds that the employee failed to meet his burden of proof that his accident of November 2, 2007 was the prevailing factor causing both the medical condition and disability to his right shoulder. The employee has not shown that there is a medical causal relationship between his accident and the disabilities he claims.

Right carpal tunnel

Based on a consideration of all of the evidence in the case, the Comt finds that the employee's accident of November 2, 2007 was not the prevailing factor in causing both the injury and disability to his right wrist for the following reasons: -the mechanism of the accident is not consistent with causing carpal tunnel. The employee testified that he fell with his arms tucked to his side. He indicated that he did not fall onto an outstretched ann. -the medical records are quite clear that the employee had right carpal tunnel problems prior to his November 2, 2007 accident. He admitted at trial that he was having bilateral hand problems before his accident with more severe problems on the right. He admitted to pain in the wrists along with numbness and tingling. -there is a clear documentation of pre-existing carpal tunnel syndrome problems and disabilities. -the employee already settled a claim for carpal tunnel to the right wrist. -even after his carpal tunnel settlement, in 2006 the employee was treated for carpal tunnel and elected not to have surgery. The employee testified that the reason he left his employment at Tyson Foods can be attributed to the hand intensive work. -again the testimony of Dr. Volarich was not found to be persuasive.

Page 26


Based on a consideration of all of the evidence in the case, the Court further finds that the employee failed to meet his burden of proof that his accident of November 2, 2007 was the prevailing factor causing both the medical condition and disability to his right wrist. The employee has not shown that there is a medical causal relationship between his accident and the disabilities he claims.

2. Future Medical Care

Based on a consideration of all of the evidence in the case, the Court finds that the compensable iajuries the employee received in his November 2, 2007 accident do not require any additional medical care. The Court further finds that the employee has not provided credible evidence that meets his burden of proof on the issue of future medical care.

3. Permanent Partial Disability

Based on a consideration of all of the evidence in the case, the Court finds that the employee received a 5% permanent partial disability to his head/face and body as a whole as a result of his November 2, 2007 accident. The employer-insurer is order to pay $4,756.20 to the employee as payment for permanent partial disability.

4. Permanent Total Disability 5. Liability of the Second Injury Fund for either permanent partial or permanent total disability

The Court has outlined specific reasoning and has denied the bulk of the employee's case under the concepts of prevailing factor, medical causation and the lack of persuasive medical testimony providing proof for his positions. The Court has only found that the employee's injury to his head was related to his November 2, 2007 accident. The Court has set out specific findings as to why the employee's claimed injuries to his left hip, back, right shoulder, left knee and right wrist are not compensable.

Based on a consideration of all of the evidence in the case, the Court finds that the employee's accident of November 2, 2007 did not, in and of itself, cause the employee to be permanently and totally disabled. The Court futiher finds that the compensable potiion of the employee's case/injuries/disabilities does not combine with his pre-existing disabilities/ injuries in combination to cause the employee to be permanently and totally disabled.

The employer-insurer has not been ordered to provide permanent total disability compensation to the employee. The Second Injury Fund is not ordered to pay permanent total or permanent partial disability compensation to the employee.

While the employee may not be able to be employed, it is not due to any disabilities caused by his November 2, 2007 accident. Medical evidence shows that the employee's existing poor health status can be attributed to the health problems that he had prior to November 2, 2007; and to the subsequent deterioration that has occurred since November 2, 2007.

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6. Maximum Medical Improvement

Based on a consideration of all of the evidence, the Court finds that the employee reached MMI from his accident of November 2, 2007 when Dr. Huff returned him to work with restrictions on November 13, 2008.

ATTORNEY'S FEE:

James M. Turnbow, attorney at law, is allowed a fee of25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

INTEREST:

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

l!lilrtllyt~·~:~- 2-JJ-/J , I delivered a copy of the foregoing award 10 th~ n•rli•~ lo lh~ c~se. A complete record of the method of deliveiy and date of servir.e upon each party Is retained with the executed award In the Division's case file.

Gary L. Robbins Administrative Law Judge

Division of Workers' Compensation

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Documents

Issued by THE LABOR AND INDUSTRIAL RELATIONS ......FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) Injury No.: 07-133452 Employee: Ulysses