FINAL AWARD ALLOWING COMPENSATIONThe Missouri courts have identified the following test for...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

with Supplemental Opinion) Injury No.: 12-024268 Employee: Dennis Moss Employer: Missouri Department of Corrections Insurer: Missouri Office of Administration 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. Having reviewed the evidence, read the parties’ briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. Discussion Section 287.190.6(2) RSMo The administrative law judge determined that employee suffered a 32.5% permanent partial disability of the right upper extremity at the 232-week level as a result of the severe right shoulder injury employee suffered on April 11, 2012. The administrative law judge also found that employee is permanently and totally disabled based on the combination of the April 2012 injury and the effects of employee’s preexisting disabling conditions. On appeal, the Second Injury Fund argues that the administrative law judge erred, as a matter of law, in finding, as a factual matter, that employee is permanently and totally disabled, because § 287.190.6(2) RSMo provides, in relevant part, that “[p]ermanent partial disability or permanent total disability shall be demonstrated and certified by a physician.” The Second Injury Fund argues that because employee did not present an opinion from a doctor specifically stating that he is unable to perform any work, this statutory provision requires that we deny the claim for permanent total disability benefits. We disagree, for the following reasons. We first note that § 287.020.6 RSMo provides as follows: “The term ‘total disability’ as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.” The Missouri courts have identified the following test for permanent total disability:

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.

Injury No.: 12-024268 Employee: Dennis Moss

- 2 - Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011)(citation omitted). When the question is the nature and extent of permanent disability, the courts have consistently instructed that the "degree of disability is not solely a medical question." ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007).

The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

Elliott v. Kan. City School Dist., 71 S.W.3d 652, 657 (Mo. App. 2002)(citation omitted). Turning to § 287.190.6(2)—the language of which we are, of course, required to strictly construe by virtue of § 287.800.1 RSMo—we next observe that this section does not specifically require that an employee advance an opinion from a doctor that he or she is permanently and totally disabled; instead, the legislature used the words “demonstrated” and “certified” to describe the type of medical proof that will support a claim for benefits premised on permanent disability. Turning to our dictionary, we find the following definitions, set forth in relevant part:

Certify 1 : to attest especially authoritatively or formally: CONFIRM 2 : to inform with certainty: ASSURE Demonstrate 1 a : INDICATE: point out b : to manifest clearly, certainly, or unmistakably: show clearly the existence of 2 a : to make evident or reveal as true by reasoning processes, concrete facts and evidence, experimentation, operation, or repeated examples b : to illustrate or explain in an orderly and detailed way especially with many examples, specimens, and particulars[.]

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 367, 600 (2002). The foregoing does not, in our view, imply or mandate any requirement that a medical expert in a workers’ compensation case specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied. Rather, it would appear that the statute requires only that medical experts “attest authoritatively,” “confirm,” “manifest clearly,” or “make evident or reveal” the


- 3 - extent of an employee’s physical functioning by making findings on examination, rendering diagnoses as to the employee’s medical conditions, and identifying restrictions or recommendations as to the employee’s physical activities referable to those diagnoses. These medical findings serve to “demonstrate” or “certify” the employee’s physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because “[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases.” Sanderson v. Porta-Fab Corp., 989 S.W.2d 599, 603 (Mo. App. 1999)(citations omitted). Consistent with the well-established test for permanent total disability in Missouri set forth above, a proper analysis of employability requires not only the medical identification of physical limitations but also consideration of issues such as job requirements, job availability, transferable skills, and prospects for retraining. In many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker’s prospects for returning to any employment. Our courts have consistently recognized this reality, and a number of recent decisions have, in unmistakable fashion, affirmed and defended the discretionary province of the fact-finder from overly technical challenges to the sufficiency of a party’s medical evidence:

[T]he record need not contain a single expert opinion addressing the entirety of a claimant's conditions. Rather, the Commission may consider the opinions of multiple experts of differing specialties to arrive at its factual determination as to the parts and sum of a claimant's conditions.

Patterson v. Cent. Freight Lines, 452 S.W.3d 759, 767 (Mo. App. 2015).

SIF contends that the Commission erred as a matter of law in awarding permanent and total disability benefits by failing to apply the appropriate statutory standard in its finding that Majors is permanently and totally disabled. Under Section 287.190.6(2) RSMo "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." … In its finding of permanent and total disability, the Commission was authorized to rely upon the substance of Dr. Stuckmeyer's medical conclusions as to the severity of Majors' knee injury and physical restrictions thereto in combination with his severe pre-existing knee disability and the necessity for future total knee replacement. Though Dr. Stuckmeyer may not have used "magic words" like "certify" and "permanent and total disability," the clear and plain import of Dr. Stuckmeyer's testimony is that Majors' workplace accident was the prevailing factor in causing an extremely debilitating and continuing disability severely restricting Majors' ability to perform the functions of his previous employment or any similar employment in the future. … SIF's attempt to foist a hyper-technical "magic words" test upon Dr. Stuckmeyer's testimony violates the dictate of our Supreme Court in Malam v. Dep't of Corr. directing us to consider the words of a


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medical expert and, in context, apply "the plain meaning of the medical expert's testimony." This is precisely what the Commission has done in interpreting the plain meaning of Dr. Stuckmeyer's testimony and the Commission has not erred in doing so.

Treasurer of Mo. v. Majors, 506 S.W.3d 348, 352-53 (Mo. App. 2016), citing Malam v. Dep't of Corr., 492 S.W.3d 926 (Mo. 2016). Especially in light of the relevant and controlling analysis from the Majors court set forth above, we read § 287.190.6(2) as permitting us to do as we have always done: consider the actual substance of the opinions from the testifying experts, weigh the persuasive value of those opinions, and then fulfill our fact-finding duty to determine the nature and extent of an employee’s disability. While we agree that § 287.190.6(2) requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions—as well as decisions from administrative law judges and the Commission—be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker’s employability, cannot be supplemented (or refuted) by other, non-medical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record in its entirety and to draw reasonable inferences therefrom. Turning to the facts of this case, we note that the administrative law judge’s remarkably thorough award includes a painstaking examination of the opinions from each of the medical and vocational experts who testified in this case, as well as clear and well-reasoned findings as to the persuasive value thereof. Although this record might have supported a different result, we are convinced that the administrative law judge’s findings are supported by expert medical opinions, the substance of which are sufficiently detailed so as to satisfy the “demonstration” and “certification” requirements under § 287.190.6(2). After careful consideration, we are not inclined to disturb the administrative law judge’s finding that employee is permanently and totally disabled based on the combination of the primary injury and his preexisting disabling conditions. For this reason, we affirm the award of permanent total disability benefits from the Second Injury Fund. Nature and extent of permanent disability referable to the primary injury On page 40 of his award, the administrative law judge noted the competing permanent partial disability ratings from Drs. Craig Satterlee and William Hopkins, but declared these ratings “not credible or persuasive.” Dr. Satterlee rated employee’s permanent partial disability referable to the primary injury at 30% of the right shoulder, while Dr. Hopkins rated 35 or 36% of the right shoulder (although Dr. Hopkin’s report ultimately identifies a 35% permanent partial disability referable to the primary injury, we note that this appears to be the result of a mathematical error, as the doctor otherwise rated employee’s overall disability affecting the right shoulder at 42%, with 6% referable to preexisting conditions). The administrative law judge found employee suffered a 32.5% permanent partial disability referable to the right shoulder. Thus, it would appear


- 5 - the administrative law judge found the opinions from both Drs. Satterlee and Hopkins to be credible and equally persuasive, but not dispositive. Overall, we view the evidence and testimony from all experts in this case to be credible, informative, and valuable; for this reason, we do not endorse the administrative law judge’s finding that Drs. Satterlee and Hopkins provided opinions in this case that were not credible. On the other hand, we note that the administrative law judge expressly found employee to be a credible witness with regard to his symptoms and limitations resulting from the primary injury. Given that the administrative law judge was able to observe employee as he testified (and noted his firsthand impressions of employee in his award), and where the Second Injury Fund expressly concedes in its brief that employee made a credible witness, we will defer to this finding. Turning to employee’s credible testimony, we find that the primary injury left employee with the following symptoms and limitations: constant aching and soreness in the right shoulder; an instantaneous and severe increase in pain in the right arm with activities as innocuous as lifting a jug of milk, attempting to turn a door handle, or carrying a dinner plate with food on it; an inability to reach with his right arm behind himself to put on a belt; and a total inability to perform overhead work with the right arm without experiencing severe pain. In other words, the effects of the primary injury have nearly deprived employee from any sustained or normal use of his dominant right upper extremity. Consequently, it is our view that a rating of only 32.5% permanent partial disability for employee’s primary right shoulder injury is remarkably low for an injury of such magnitude. If the issue had been placed before us in a timely-filed application for review, we would be inclined to assess significantly more permanent partial disability for the primary injury. However, no party to these proceedings has argued the administrative law judge’s rating for the primary injury was in error; accordingly, we decline to explore that issue any further. Attorney fee lien Taking administrative notice of the records of the Division of Workers’ Compensation, we note that employee’s attorney of record at the time of the June 2, 2016, hearing before the administrative law judge in this case was Douglas L. Van Camp. In his award, the administrative law judge granted a lien in the amount of 25%, plus expenses, of all payments under the award in favor of attorney Christine Kiefer, who was then associated with the Van Camp Law Firm, LLC. On April 20, 2017, the Commission received a “Motion to Withdraw At Request of Employee” from Van Camp Law Firm, LLC, and Douglas L. Van Camp (hereinafter “Motion”). The Motion indicated that employee had requested his file be transferred to the Law Office of Christine Kiefer; that Douglas L. Van Camp wished to withdraw from his representation of employee; and that Douglas L. Van Camp asserted a lien for expenses and attorney’s fees for past and future permanent total disability payments pursuant to the terms of the award. On May 12, 2017, Ms. Kiefer entered her appearance on behalf of employee. On May 25, 2017, the Commission granted the Motion permitting the Van Camp Law Firm, LLC, and Douglas L. Van Camp to withdraw from representation of employee.


- 6 - On January 3, 2018, Ms. Kiefer filed correspondence with the Commission indicating that she does not assert any lien in this case; that if any prior lien exists, she waives it in both her personal capacity, and that of her firm, the Kiefer Law Office, LLC; and that she agrees that the lien asserted by Van Camp Law Firm, LLC, and/or Douglas L. Van Camp is valid, and that fees and expenses should be paid accordingly. Given the foregoing circumstances, we must now clarify the matter of the attorney fee and lien awarded in this case. We conclude that the compensation awarded to the employee shall be subject to a lien in the amount of 25%, plus expenses, of all payments hereunder in favor of Douglas L. Van Camp. Conclusion We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Robert B. Miner, issued November 15, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision. Given at Jefferson City, State of Missouri, this 10th day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Issued by DIVISION OF WORKERS' COMPENSATION Re: Injury No.: 12-024268 Employee: Dennis R. Moss

WC-32-R1 (6-81) Robert B. Miner, ALJ Page 1

AWARD

Employee: Dennis R. Moss Injury No.: 12-024268 Employer: Missouri Department of Corrections Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund Insurer: Missouri Office of Administration Hearing Date: June 2, 2016 Checked by: RBM

FINDINGS OF FACT AND RULINGS OF LAW 1. Are any benefits awarded herein? Yes. 2. Was the injury or occupational disease compensable under Chapter 287? Yes. 3. Was there an accident or incident of occupational disease under the Law? Yes. 4. Date of accident or onset of occupational disease: April 11, 2012. 5. State location where accident occurred or occupational disease was contracted: Cameron, Dekalb County, Missouri. 6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes. 7. Did employer receive proper notice? Yes. 8. Did accident or occupational disease arise out of and in the course of the employment? Yes. 9. Was claim for compensation filed within time required by Law? Yes. 10. Was employer insured by above insurer? Yes. 11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee and a co-worker were carrying a footlocker when the co-

Before the Division of Workers’

Compensation Department of Labor and Industrial

Relations of Missouri



worker dropped his end of the footlocker causing Employee’s right arm to be yanked which resulted in injury to Employee’s right shoulder. 12. Did accident or occupational disease cause death? No. 13. Part(s) of body injured by accident or occupational disease: Right shoulder. 14. Nature and extent of any permanent disability: 32.5% of the right upper extremity at the shoulder at the 232 week level, combining with preexisting disability to render employee permanently and totally disabled. Permanent and total disability against the Second Injury Fund. 15. Compensation paid to-date for temporary disability: $21,753.33. 16. Value necessary medical aid paid to date by employer/insurer? $90,315.67. 17. Value necessary medical aid not furnished by employer/insurer? None. 18. Employee's average weekly wages: $555.29. 19. Weekly compensation rate: $370.19 for temporary total disability, permanent partial disability, and permanent total disability. 20. Method wages computation: By agreement of the parties. COMPENSATION PAYABLE

21. Amount of compensation payable: Unpaid medical expenses: None. No weeks of temporary total disability (or temporary partial disability). 75.4 weeks of permanent partial disability from Employer at the rate of $370.19 per week = $27,912.33. No weeks of disfigurement from Employer. Employer is directed to authorize and furnish additional medical treatment to cure and relieve Employee from the effects of his April 11, 2012 work injury, in accordance with section 287.140, RSMo.



22. Second Injury Fund liability: Permanent total disability benefits from Second Injury Fund: the sum of $370.19 per week beginning on February 14, 2016 and, thereafter, for the remainder of Claimant's lifetime, subject to review and modification as provided by law. 23. Future requirements awarded: As awarded. Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. The compensation awarded to the claimant shall be subject to a lien in the amount of 25% plus expenses of $5,145.67 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Christine M. Kiefer.



FINDINGS OF FACT and RULINGS OF LAW:

Employee: Dennis R. Moss Injury No.: 12-024268 Employer: Missouri Department of Corrections Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund Insurer: Missouri Office of Administration Hearing Date: June 2, 2016 Checked by: RBM

PRELIMINARIES

A final hearing was held in this case on Employee’s claims against Employer and The Treasurer of the State of Missouri as Custodian of the Second Injury Fund on June 2, 2016 in St. Joseph, Missouri. Employee, Dennis R. Moss, appeared in person and by his attorney, Christine M. Kiefer. Employer, Missouri Department of Corrections, and Insurer, Missouri Office of Administration, appeared by their attorney, Jacob R. Colling. The Second Injury Fund appeared by its attorney, David L. McCain. Christine M. Kiefer requested an attorney’s fee of 25% from all amounts awarded. It was agreed that post-hearing briefs would be due on July 5, 2016.

STIPULATIONS

At the time of the hearing, the parties stipulated to the following:

1. On or about April 11, 2012, Dennis R. Moss (“Claimant”) was an employee of Missouri Department of Corrections (“Employer”) and was working under the provisions of the Missouri Workers’ Compensation Law.

2. On or about April 11, 2012, Employer was an employer operating under the provisions of the Missouri Workers’ Compensation Law and was fully insured by Missouri Office of Administration (“Insurer”).

3. On or about April 11, 2012, Claimant sustained an injury by accident in Cameron, Dekalb County, Missouri, arising out of and in the course of his employment.

4. Employer had notice of Claimant’s alleged injury.

Before the Division of Workers’

Compensation Department of Labor and Industrial

Relations of Missouri



5. Claimant’s Claim for Compensation was filed within the time allowed by law.

6. The average weekly wage was $555.29, and the rate of compensation for

temporary total disability, permanent partial disability, and permanent total disability is $370.19 per week.

7. Employer/Insurer has paid $21,753.33 in temporary total disability at the rate of $370.19 per week for 58 5/7 weeks.

8. Employer/Insurer has paid $90,315.67 in medical aid.

9. Claimant reached maximum medical improvement on September 4, 2014.

ISSUES

The parties agreed that there were disputes on the following issues: 1. What is the nature and extent of Claimant’s permanent disability, and what is Employer’s liability for permanent partial disability benefits, or in the alternative, for permanent total disability benefits? 2. What is Employer’s liability, if any, for future medical aid? 3. What is the liability of the Second Injury Fund for permanent partial disability benefits, or in the alternative, for permanent total disability benefits? Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence without objection: 1—Report of Dr. William Hopkins dated November 17, 2014, with Curriculum Vitae 2—Deposition of Kristine Skahan with deposition exhibits (the deposition was admitted subject to objections contained in the deposition) 3—Division of Workers’ Compensation records 4—Heartland Occupational Medicine records 5—Heartland Regional Medical Center records 6—Heartland Regional Medical Center records 7—Heartland Regional Medical Center records 8—North Kansas City Hospital records 9—Van Camp Law Firm Expenses 10—Van Camp Law Firm Contingent Fee Agreement



Employer offered the following exhibits which were admitted in evidence without objection: A—Deposition of Terry Cordray taken on January 19, 2016 with deposition exhibits (the deposition was admitted subject to objections contained in the deposition) B—Medical records of Drisko, Fee & Parkins C—Medical records The Second Injury Fund offered SIF Exhibit I, the deposition of Claimant taken on June 29, 2015, which was admitted subject to any objections contained in the deposition.

Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

The Post-Hearing Briefs have been considered. Findings of Fact Claimant began working for Employer three years before April 2012. He worked as a Corrections Officer 1. He was responsible for safety and security. He performed inspections, pat downs, escorts, and searches. He delivered inmates’ property in foot lockers that sometimes weighed more than 150 pounds. On April 11, 2012, Claimant went to an inmate’s room to inventory the inmate’s belongings. Claimant put everything into a footlocker. Claimant and another employee each picked up an end of the footlocker and began carrying it up steps. The other employee stumbled and dropped the footlocker when he was at the top of the steps. Claimant’s right arm caught the weight of the footlocker and his right arm was yanked. Claimant dropped his end of the footlocker. He felt a shock all up and down his right arm and into his neck. He also felt numbness in his right arm and hand.

Claimant’s supervisor witnessed the incident. Claimant reported it to his supervisor. Claimant asked to go to the doctor, but he was not sent there immediately. He was sent home after his injury. He did not complete his shift that day. He was not able to sleep that night because he was in a lot of pain.

Employer sent Claimant to a worker’s compensation doctor in St. Joseph the next

day. X-rays were taken. He saw a nurse practitioner, Richard Campbell, who told him he



“tore the crap out of his shoulder.” An MRI was ordered for the following Wednesday. Claimant worked light duty until the MRI was done. He was off work on Friday and Saturday.

Claimant returned to work on Sunday night and reported he had not been sleeping.

He returned to work on Monday and still was not sleeping. He went to HR and Employer sent him to Richard Campbell who pressed and turned his head and ordered an MRI of his neck. Claimant returned to Richard Campbell several days later and Richard Campbell told him that it was his shoulder, and not his neck. Claimant then had an MRI of the shoulder and was referred to Dr. Satterlee who gave Claimant shots in his neck. The shots took the pain away for only one day.

Claimant went to physical therapy for six months. He got worse and returned to

Dr. Satterlee. Dr. Satterlee did exploratory surgery, but that did not help him. Dr. Satterlee later told Claimant he needed a total shoulder replacement, and that was done on September 11, 2013. The replacement surgery helped a little and took a lot of the extreme pain away. Claimant continued physical therapy after the shoulder replacement surgery. He did not have shots after the replacement surgery.

Claimant returned to work light duty for Employer after the first shoulder surgery.

He never returned to full duty work. When he was on light duty, he answered the phone and sorted mail. It was difficult to open mail. He was also hard to sit all the time due to a prior back injury.

Claimant testified at the hearing that he stopped working in February 2014. He

testified in his June 29, 2015 deposition that he stopped working in February 2013 or 2014. He testified at Claimant deposition, page 63: “A. ’13, ’14—I don’t know. Like I say, dates, I’m not good on dates at all.”

Dr. Satterlee released Claimant with a restriction of no lifting more than ten

pounds. Claimant was not allowed to have permanent restrictions when he worked for Employer. Claimant stopped working for Employer because of Dr. Satterlee’s work restriction. Claimant has not worked since he stopped working for Employer.

Claimant had problems before his April 2012 injury. He had right carpal tunnel surgery in 1992. He lost grip strength in his right hand due to his carpal tunnel surgery. He had problems with his right hand consistently from 1992 until 2012. His right hand condition did not cause problems at work or affect his ability to do his job duties. He was able to make a fist. He did not have problems typing with his right hand due to his carpal tunnel surgery.



Claimant had problems with his right knee in 1997. He did not have a specific injury. It was repetitive over years. He had injections in the right knee. His right knee occasionally acted up on him with seasonal changes. His right knee did not really affect him on the job other than for a day or two.

Claimant injured his right elbow in 2000 while working for Donaldson’s. He was

working with a press lever on a hand roller when his right arm jerked, injuring ligaments in his right elbow. He had therapy and worked light duty for a time. He had surgery to his right elbow. He had weakness in his right elbow after the surgery. He had difficulty lifting more than forty pounds with his right arm. He was not able to pick up a five gallon bucket containing dirt or sand with his right arm after his right elbow surgery. He was not able to pick up a five gallon bucket of gas and put it in a truck with his right hand. He had to use two hands to do that. He did not have problems with his elbows doing his jobs.

Dr. Newland of Liberty Orthopedics treated Claimant’s right elbow. He agreed

Dr. Newland assessed a rating of 10% at the elbow on May 24, 2004. Claimant settled his right elbow injury at 15% at the 210 week level.

Claimant had left carpal tunnel in 2011 or 2012, but he did not have carpal tunnel surgery to the left wrist. His left hand goes to sleep when he tries to read the paper. He is not able to paint or sling a hammer with his left hand. He has had those problems since 2011 or 2012. His hands have affected his ability to put dishes away.

Claimant had problems with his low back before his April 2012 shoulder injury. He had injections and then had an incision in his low back in approximately late 2011. He treated with Dr. Dodson. Claimant had back surgery before his April 2012 work injury. Dr. Bailey performed the surgery.

Claimant returned to full duty for Employer in about February 2012 and did not

have difficulty doing his job. He was able to run to a fight without problems within three days of his April 2012 injury. He was able to change positions at work before his April 2012 injury.

Claimant had difficulty bending and squatting after his back surgery. He stopped

carrying fence posts, picking up heavy rocks, using a maul, and using a post-hole digger at his farm after his back surgery.

Claimant spent a lot of time walking while he did rounds. He worked an eight-hour shift for Employer. He was able to sit and rest while he did rounds. Once a week he was a control module officer and he was able to sit more.



Claimant searched inmates and crawled under beds to search when he worked for Employer. That caused tightness and pain. He sometimes stopped walking because of his back prior to his April 2012 injury. He tried to do things more slowly and more cautiously at work due to his back condition. He did not want to reinjure his back.

Claimant took a physical before he began working for Employer. He did not have difficulty performing the physical. He had to carry a dummy weighing between 150 pounds 175 pounds a length of fifty feet. He used both hands. He did not have difficulty doing that.

Claimant testified he has had constant aching and soreness in his right shoulder

since September 2014. He has pain from the far side of his right shoulder blade to his right elbow. He has the least amount of right arm pain when his arm is propped up on a pillow.

Claimant’s right shoulder pain averages a three on a scale of one to ten. His pain

is a ten at the worst. He has pain that is a ten if he forgets and tries to do some things. Once he tried to open a locked door he thought was unlocked, and he had pain that was a ten. It hurts when he grabs for a glass or moves his arm quickly. He uses a leg to push open a door at his girlfriend’s house.

Claimant is not able to reach behind his back with his right arm to put his belt

through loops. He is able to reach straight up, but he does so with pain. He is not able to lift anything past his belt with his right arm. He is not able to carry a plate with food with his right hand. He has moved his heavy dishes to lower cabinets. He is not coordinated with his left hand.

Claimant has problems vacuuming, scrubbing floors, putting sheets on his bed,

doing laundry, and hanging clothes. He uses his left arm to perform these tasks. He kicks clothes down stairs to do laundry. He is not able to carry a laundry basket. He has a lot of pain if he tries to pick up a two-gallon gas can.

When Claimant goes to the grocery store, he carries heavy groceries with his left

hand and carries light things with his right hand. He tries not to go artifact hunting because of pain. He is not able to walk that far. Bouncing on a tractor is difficult. He has difficulty sitting more than thirty minutes due to his back condition.

Claimant is able to sit for thirty minutes at a time and stand for thirty minutes at a

time without problems in his back. He gets stiffness and aching in his back after sitting for thirty minutes. He gets aching in his back, right hip, and legs after standing for more than thirty minutes. He continues to have tightness in his low back. He uses Voltaren on



occasion for pain in his back and shoulder. He occasionally uses a sock over his knee, but that does not help.

Claimant has difficulty sleeping because of pain in his right shoulder and arm. He

gets less than four hours sleep at night. He lies down during the day three to four times per week. He sometimes rests in a recliner during the day due to shoulder pain and back pain. He did not have difficulty sleeping before his April 11, 2012 work injury. He has had difficulty sleeping since that injury.

Claimant testified that he would not be able to perform his Correction Officer 1

job because of Dr. Satterlee’s restrictions. He was not allowed to have permanent restrictions when he worked for Employer. He is not able to lift the required weight and do defensive tactics. He cannot take down prisoners, or cuff them behind their backs.

Before Claimant worked for Employer, he worked on two occasions at a sand plant operating heavy equipment, driving a semi-truck and trailer, digging sand, mud, and rocks with a shovel, and driving a dump truck. He also worked at a hospital as a maintenance person where he was required to carry five-gallon buckets, tighten pipes, crouch, and bend. He testified he could not now do those jobs.

Claimant worked as a delivery driver for Culligan before April 2012. He carried

five gallon bottles of water that weighed sixty to seventy pounds. He could not do that job now. He also drove a forklift in the past before April 2012. The job required that he lift fifty to sixty pounds. He could not do that job now.

Claimant also worked as a welder, an auto mechanic, and a cable television

installer before April 2012. He could not do those jobs because they are beyond his restrictions. He worked for six months as a chauffeur. He also is not able to drive for more than twenty to thirty minutes at a time. He needs to get out and stretch for five to ten minutes because his back gets stiff. He drives using his left hand. Vibration in the wheel causes pain.

Claimant graduated from high school. He went to technical school and took

electronics and welding courses after high school. Claimant testified he could not work as a cashier if he had to stock shelves. He would need to get up from sitting.

Claimant does not own a computer. He used a computer at Employer for reports. He pecks when he types.

Claimant takes medication for heartburn, Prilosec, as well as vitamin D, and baby

aspirin. He takes two Aleve’s per day when his arm hurts.



Claimant sees Dr. Satterlee yearly for checkups. He last saw Dr. Satterlee in September 2015 and was to return to Dr. Satterlee in September 2016.

Claimant has had constant ringing in his ears for the past twenty years. He cannot

understand more than one person speaking at a time. He had difficulty hearing people in groups at times before 2012.

Claimant is right handed.

Claimant was born on January 16, 1954 and is 62 years old. He lives alone in a single-family dwelling with a full basement. He has lived there for two years. His laundry is in the basement. He lives on two acres. He mows his yard once a week with a riding mower. He takes two to three fifteen minute breaks when he mows. He uses a grabber to pickup sticks before he mows. Before he lived at his current home, Claimant lived on a forty acre farm for eleven years. Before his April 11, 2012 injury, he cleared timber and brush for horse rides for disabled children. He built a pond for his grandchildren. He rebuilt fences on the property. He mowed six acres of the farm. He last worked on the farm prior to his April 11, 2012 injury.

Claimant stood for a few minutes on two occasions during the two-hour hearing. He occasionally leaned to the right and left while seated during the hearing. He did not grimace during the hearing.

I find Claimant’s testimony to be credible.

Medical Evidence

Exhibit 6 contains records of Heartland Regional Medical Center, Heartland Spine

Center/Heartland Spine Clinic, and Dr. William Dodson. These records contain notes showing that Dr. Dodson treated Claimant on several occasions in 2011 for complaints of right low back and buttocks pain reaching into the thigh. It was Dr. Dodson’s Impression on September 7, 2011 that Claimant had lumbar posterior element disease secondary to spondyloarthropathy, low back pain, and degenerative disc disease. The records document that Claimant was in physical therapy and engaged in a home exercise program. Exhibit 5 contains two X-ray reports of Heartland Regional Medical Center dated September 14, 2011 of bilateral hips and AP pelvis and SI joints bilateral. The Indication in both reports is: “[L]ow back pain, right hip pain.”



Exhibit 7 contains records of Heartland Regional Medical Center, Center for Pain Management, and Dr. Shawn Zeltwanger. Dr. Zeltwanger saw Claimant on numerous occasions during 2011 for Claimant’s complaints of lower back pain. Dr. Zeltwanger administered several lumbar epidural injections to Claimant’s low back in 2011.

Exhibit 7 includes a report of Dr. Alexander Bailey dated December 6, 2011. The report notes Claimant was injured in September 2007 and complained of pain in his buttocks and right lower extremity. The report notes diagnostic studies revealed an L4-5 herniated nucleus pulposus as well as degenerative disc disease at L4-5 and L5-S1, and multilevel spinal stenosis. Dr. Bailey’s Impression was “degenerative disc disease, spinal stenosis.” Dr. Bailey’s report states in part, “At this point, we have recommended an L4-5, L5-S1 decompression. Since the patient does not have any back pain, we feel that a decompression would be reasonable to help relieve his leg pain. We have discussed the risks, benefits and reasonable expectations to the procedure with the patient. We have answered all of his questions. He verbalized he understood. He is happy with that plan.” Exhibit C contains records of Dr. David Cathcart and nurse practitioner, Richard Campbell. These include Richard Campbell’s April 12, 2012 note. Claimant presented complaining of injuring his right shoulder the day before at work while lifting an inmate locker to carry it into the central module. Richard Campbell diagnosed “right shoulder strain/impingement, rule out rotator cuff involvement.”

Exhibit C includes Dr. Cathcart’s April 16, 2012 note. Claimant complained of severe right shoulder pain. Dr. Cathcart’s Impression was “Right shoulder strain with poor psychomotor pain dynamics.” Dr. Cathcart noted Claimant needed to continue wearing the shoulder immobilizer for the time being and then begin Codman exercises, and if not improved, they will consider an MRI.

Exhibit C includes a record of Dr. David Cathcart dated May 2, 2012. Dr. Cathcart saw Claimant for follow-up of right shoulder pain. Dr. Cathcart’s Impression was: “[R]ight shoulder strain, etiology not clear, still not resolved.”

Exhibit C includes an MRI report dated May 9, 2012 of the right shoulder. The

Impression states: “There is pronounced osteoarthrosis of the a.c. joint and moderate osteoarthrosis of the glenohumeral joint. No full thickness rotator cuff tear is identified. No large labral lesion is identified. There is osteophyte formation of the glenoid process." Exhibit B contains medical records of Drisko, Fee & Parkins, including Dr. Craig Satterlee. Exhibit B includes a Patient Medical History dated June 3, 2012. The reason for the appointment was injury to right shoulder on April 11, 2012.



Exhibit B includes Dr. Satterlee’s June 4, 2012 office note. Claimant presented for right shoulder pain. The record notes Claimant’s injury “occurred on or about 04/27/2012, when he was picking up an inmate footlocker with another officer, and they had to carry 3 steps. It weighed about 200 lbs. He felt an ‘electrical shock’ through his shoulder and pain.” The “Past Surgical History” notes right hand carpal tunnel 1992, right elbow 2000, and low back 2011. Dr. Satterlee’s Impression was osteoarthritis-shoulder-right and acromioclavicular joint arthrosis-right.

Exhibit B includes Dr. Satterlee’s Operative Report dated October 19, 2012. Dr.

Satterlee’s Preoperative and Postoperative Diagnoses were: “1. Right shoulder rotator cuff syndrome/tear. 2. Acromioclavicular joint arthritis. 3. Glenohumeral arthritis.” The report states the Procedures Performed were: “1. Right shoulder arthroscopic extensive debridement. 2. Arthroscopic subacromial decompression. 3. Arthroscopic distal clavicle excision complete.” Exhibit 8 includes records of North Kansas City Hospital. An Operative-Procedure Note of Dr. Craig Satterlee dated September 11, 2013 is included. The Preoperative Diagnosis is shown to be: “Right shoulder osteoarthritis.” The Postoperative Diagnosis is shown to be: “Right shoulder glenohumeral joint arthritis.” The Operative Procedure is shown to be: “Right total shoulder replacement.”

A Consultation note of Dr. Jill Dawson dated September 11, 2013 in Exhibit 8 states in part:

Past Surgical History: 1. Multiple orthopedic surgeries including the right total shoulder today. 2. He is had right carpal tunnel release. 3. Right elbow surgery. 4. Back surgeries. 5. Knee injections.

The Discharge Summary dated September 13, 2013 in Exhibit 8 notes an

admission date of September 11, 2013 and a discharge date of September 13, 2013.

Exhibit B includes Dr. Satterlee’s December 10, 2014 Rating Report. The report states in part that Claimant “has reached maximum medical improvement and no further appointments have been scheduled. MMI Date: 06/30/2014.”

Dr. Satterlee’s December 10, 2014 report describes Claimant’s course of treatment

and notes that after Claimant’s October 19, 2012 right shoulder arthroscopic surgery, Claimant was treated surgically for a right total shoulder replacement on September 11,



2013. The report notes that at Claimant’s last visit on September 4, 2014, Claimant had a little discomfort with external rotation. Claimant was continued on a lifting restriction of less than 10 pounds. Claimant did not have pain with resisted internal rotation.

Dr. Satterlee concluded on December 10, 2014 that Claimant had permanent

partial impairment of 30% of the right shoulder. The December 10, 2014 report also notes that the shoulder replacement “will require routine follow-up for surveillance of the prosthesis. At this time we will plan to see him back in one year, then probably every couple of years thereafter if he is doing well.”

Exhibit B includes Dr. Satterlee’s October 12, 2015 office note. Claimant

presented for a yearly follow-up. The note states Claimant’s pain had improved since his last visit. Claimant stated the Voltaren gel “helped him quite a bit.” Claimant had a low-grade ache in his shoulder. Claimant and Dr. Satterlee had a discussion about persistent pain after the shoulder replacement. Dr. Satterlee added Hydrocortisone and Pennsaid to Claimant’s medication list.

Evaluation of Dr. William Hopkins

Dr. William Hopkins’s November 17, 2014 report was admitted as Exhibit 1. The

report notes Claimant was examined on November 17, 2014. The report describes Claimant’s April 11, 2012 injury and his treatment following the injury, including surgery by Dr. Satterlee in October 19, 2012, and right shoulder replacement surgery by Dr. Satterlee on September 11, 2013.

The report describes Claimant’s residual difficulties with his right arm:

1. My right arm hurts all the time and it hurts to touch it and that I have pain at night and I cannot sleep on it. 2. My arm is still numb, sometimes up to my elbow. 3. I cannot reach behind and to the side because of lost motion in the right shoulder and I cannot pick things up with my right arm.

Claimant indicated after his injury that he had difficulty lying down and developed night pain in the right shoulder interfering with his sleep, and had difficulty lifting, carrying, grasping, pushing, or pulling or reaching with his right upper extremity, and also had difficulty climbing ladders because it required use of his right arm. He had interference with his activities of daily living such as washing his back, opening heavy doors or drawers, lifting pots and pans, shoveling dirt, reaching behind him, reading the paper, or other activities at work. The report notes Claimant cannot do heavy lifting, pushing, or pulling.



Dr. Hopkins noted Claimant had a past carpal tunnel operation on the right side, past right elbow epicondylitis requiring an operation, and a back injury requiring an operation. Claimant related having low back and leg pain and difficulty lifting. Claimant indicated he was beginning to develop numbness in his left hand which Claimant felt was because of having to use his left arm in response to his right upper extremity injury. Claimant indicated he had developed anxiety since his injury. Dr. Hopkins’s report summarizes the treatment records he reviewed, including records of Dr. Zeltwanger, Dr. Kumar, and Dr. Bailey relating to the back and right leg for treatment prior to the April 11, 2012 injury. The report also summarizes medical treatment records following the April 11, 2012 injury, including records of nurse practitioner Campbell, Dr. Cathcart, and Dr. Satterlee.

Dr. Hopkins’s report describes the results of his physical examination of Claimant. Claimant had a subdeltoid scar on his right shoulder with additional small arthroscopic scars. He had pain and tenderness over the right acromioclavicular joint over the glenohumeral joint. He had limited range of motion of the right shoulder. He had diminished sensation in the ulnar aspect of his right arm and forearm. He had decreased grip strength of the right upper extremity compared to left upper extremity, and had approximately a 32% loss in dominant right upper extremity grip. He had an 8 cm posterior scar in the lumbar spine. He has some restriction of back motion with back pain without leg pain. He had numbness in the right lower extremity. Dr. Hopkins’s November 17, 2014 report states in part:

Summary and Conclusions In summary, based on the information I have available to me, I believe with a reasonable medical certainty that Mr. Moss sustained injuries to his right upper extremity at the shoulder as a direct and prevailing factor of injuries that he sustained on or about April 11, 2012, when he was carrying an approximate 100 pound footlocker with a fellow employee who dropped his side and he injured his right shoulder. I believe that this injury is the direct and prevailing factor requiring treatment including two operations, extensive physical therapy and ultimately a total joint replacement at the right shoulder. On his first examination, he did have some preexisting degenerative changes in the right shoulder involving both the glenohumeral joint as well as the acromioclavicular joint. However, degenerative changes in the acromioclavicular joint in a gentlemen of his age are common,



but not necessarily symptomatic, and in of themselves usually do not cause a major or significant impairment of function in the right shoulder. I did not find significant residual disabilities from Mr. Moss’s prior right lateral epicondylitis or his carpal tunnel entrapment. With all these considerations including his shoulder instability of which I believe is an inevitable consequence of his injuries and his required multiple operations that as frequently happens even in the most skilled care such as Dr. Satterlee provides that he has a combination of a musculoskeletal injury to his shoulder with loss of motion, loss of muscle mass, weakness and instability in association with right upper extremity loss of sensation, grip strength and intrinsic muscle control of his right hand, which I believe are from a brachial plexopathy. When the combinations of all these factors are considered, I believe that Mr. Moss has a 42% right upper extremity permanent partial disability at the 232-week level. However, because he did have degenerative changes demonstrable in the glenohumeral joint, I would relate that 6% of this total due to preexisting factors and the remainder is the direct and prevailing factor of his work injury on or about April 11, 2013 [sic]. In estimating his total disability by my calculations Mr. Moss’ right upper extremity permanent partial disability of 35% at the 232-week level equates to a 20% permanent partial disability at the 400-week level. Mr. Moss has additional disabilities to consider, he had a Missouri stipulation for compromise settlement for an injury on or about 7/30/2003 on 8/27/2004 for a 15% at the 210 week level. When the resulting overall disability of the multiple injuries to his right upper extremity is considered, it is my opinion that this increases his disability an additional 10% to his right upper extremity, thus bringing this to a 16.5% permanent partial disability at the 210 week level. In addition, Mr. Moss has a prior history of a work-incurred low back injury requiring extensive treatment with finding of lumbar disk abnormalities primarily at the L4-5 and L5-S1 levels with persistent back and leg pain, and on his examination he does have restricted lumbar motion with reflex dissymmetry and loss of sensation in his



right lower extremity with persistent radicular symptoms on straight leg raising with evidences of a prior operation. I believe that this represents an additional 25% permanent partial disability of the lumbar spine at the 400-week level. With a previous permanent partial disability of his lumbar spine, I believe that a previous injury and disability of the lumbar spine would create an obstacle to employment or reemployment if unemployed and needs consideration in his total disability. It is my opinion that when one combines the permanent partial disabilities involving his right upper extremity at his right elbow and lumbar spine with his right shoulder secondary to his recent work injury dated April 11, 2012 a significant enhancement of the combined disabilities rises above the simple arithmetic sum of the separate disability. In combination, an enhancement factor of 10% above the simple arithmetic sum of the separate disabilities is felt to be appropriate. At the present time, I do believe that Mr. Moss is at maximum medical improvement. The successful right shoulder replacement as performed by Dr. Satterlee could have an expected normal life of approximately 10 years. This raises the possibility of a required second operation on Mr. Moss’ right shoulder, which would be a direct and prevailing factor of his work-incurred injury on or about April 11, 2012. The estimated global cost of a shoulder replacement for revisional operation would be approximately $45,000. Mr. Moss has very limited work capabilities. His ability to work would be limited to a sedentary occupation that requires mostly sitting, with the ability to change positions as needed. He will not be capable of repetitive right upper extremity work. His weight capability should be no more than 10 pounds from waist to shoulder using both hands. He is not capable of above shoulder work with his right arm. He is not capable of repetitive bending from the waist more than on an occasional basis, from his previous lumbar spine injury.



This evaluation is based on information available to me as well as my training and experience as a board certified orthopedic surgeon (see curriculum vitae). The statements I have made have been within reasonable medical certainty unless otherwise indicated. I certify this report is pursuant to Missouri Law.

Vocational Evidence

Evaluation of Terry Cordray

The deposition of Terry Cordray taken on January 19, 2016 with deposition exhibits was admitted as Exhibit A. Mr. Cordray is a vocational rehabilitation counselor. He is licensed in Illinois. Kansas and Missouri do not license vocational rehabilitation counselors. He is nationally Board certified. His Curriculum Vitae, Cordray deposition Exhibit 1, notes he has a Masters Degree in Rehabilitation Counseling. He has extensive experience as a vocational rehabilitation counselor for several employers, including the State vocational rehabilitation agency, St. Joseph Hospital, and Santa Fe Railroad that merged with Burlington Northern. His been in private practice as a vocational expert since 1999. (Cordray deposition, pages 3-6).

Mr. Cordray reviewed the complete medical records of Claimant relating to his April 11, 2012 work injury. He also reviewed Claimant’s deposition testimony. He performed a vocational evaluation of Claimant and authored a report dated December 30, 2015, Cordray deposition Exhibit 2. He met with Claimant on October 26, 2015. Claimant described his April 11, 2000 injury as well as his prior low back surgery, right elbow surgery, and carpal tunnel release surgery. Id. at 10.

Mr. Cordray identified functional limitations and restrictions imposed by treating

and evaluating physicians. He noted Dr. Satterlee gave Claimant a lifting restriction of less than 10 pounds. That placed Claimant at sedentary physical demand category, or even less than sedentary, at least on the right. Id. at 11.

Mr. Cordray testified that Dr. Hopkins in his November 17, 2014 report notes that

Claimant has a prior history of low back injury with persistent back and leg pain, and had restricted lumbar motion and reflex dissymmetry and loss of sensation in his right lower extremity, and persistent radicular symptoms on straight leg raising and evidence of a prior operation. Mr. Cordray testified Dr. Hopkins notes previous permanent partial disability of Claimant’s lumbar spine, and that previous injury and disability of the



lumbar spine would create an obstacle to employment or reemployment if unemployed. Id. at 11.

Mr. Cordray observed that Dr. Hopkins noted Claimant had very limited work

capabilities, and was limited to a sedentary occupation that required mostly sitting with the ability to change positions as needed. Dr. Hopkins noted Claimant was not capable of repetitive right upper extremity work, and Claimant’s weight capability should be no more than 10 pounds from the waist to the shoulder using both hands. Id. at 11-12.

Mr. Cordray further testified at Cordray deposition, page 12 that Dr. Hopkins

states:

He [Claimant] is not capable of above shoulder work with his right arm. He is not capable of repetitive bending from the waist more than on an occasional basis from his previous lumbar spine injury. Those are the primary considerations. Previously in 2011, which would be prior to the date of injury of April 11, 2012, Dr. Zeltwanger had noted, he is very concerned that – and this is regarding the back, that if he does not start to see improvement in his overall pain, that he will be unable to perform his duties as a prison guard and he will end up being unemployed. Dr. Dodson noted that he was taking Tramadol, a nonnarcotic, but a pain medication and that he needs suspenders, it says suspends, but he needs suspenders for his utility belt to relieve the pressure on his hips, and that the aggravating factors to his back are standing and walking, and especially when walking on concrete. And that is for the preexisting back condition.

Mr. Cordray noted Dr. Dodson’s statements were given in 2011. Id. at 13.

Mr. Cordray noted Claimant graduated from high school in 1972 and later had welding training. He was previously licensed as a truck driver. He had previous vocational training as a cable installer for cable television or internet service. He had received vocational training as a correctional officer. He had not been in the military. Id. at 13-14. Mr. Cordray noted Claimant had applied for and started receiving social security disability income and had never applied for any job subsequent to leaving his job for Employer. Id. at 17.



Mr. Cordray was aware Claimant had right carpal tunnel surgery in 1996 and after that could never make a closed-tight fist again. He had right elbow surgery in 2000 and following that could not do repetitive reaching and had problems with elbow flexion. In 2011, he had back surgery and had never fully recovered. He had problems with back pain and problems sleeping. He was off work for nearly a year. He did not have formal restrictions, but had to be very careful in how he performed his job. Prior to his April 11, 2012 injury, Claimant had ongoing problems with his right grip, right elbow, and low back. Id. at 18. Mr. Cordray testified at Cordray deposition, page 18:

So for a person that has only a high school education, who has always done jobs such as cable TV installation, welding, warehouse work, truck driving, correctional officer, it’s my opinion to have a history of carpal tunnel release, a [sic] elbow surgery, a back surgery, being terminated by job for a surgery, and ongoing back problems would pose a significant hindrance and obstacle to employment or reemployment if any employer would know that that individual had that history.

This opinion of Mr. Cordray was given within a reasonable degree of vocational certainty. Id. at 18-19.

Mr. Cordray described Claimant’s work background. Id. at 19-22. He noted Claimant was currently receiving social security disability in the amount of $1.800.00 per month. Id. at 22.

Mr. Cordray performed the Wide Range Achievement Test and the Wonderlich

test. Claimant was low in spelling and average in math. His IQ is 108. Average IQ is between 90 and 109. Id. at 26.

Mr. Cordray was asked the following questions and gave the following answers at

Cordray deposition, pages 27-32:

Q. Mr. Cordray, based upon your education and training, your experience, your review of the medical records and Mr. Moss’ deposition testimony, your meeting with, testing and evaluation of Dennis Moss, did you reach certain conclusions stated within a reasonable degree of vocational certainty as to whether Dennis Moss has the ability to be gainfully employed in the open labor market and what his vocational prospects would be?



A. I did. Q. What is your process in formulating your conclusions and opinions? A. Well, I basically take a preentry vocational profile and then after that I look at the restrictions and provide a postentry vocational profile with his limitations and restrictions as noted by the doctors, the objective evidence, and then given his postinjury vocational profile I provide a comparison of the jobs that he’s performed and provide an opinion whether or not he can perform any of his past employment, and given his skill level, his age, his education and the restrictions that have been provided by the physicians, whether or not he can perform any other jobs in the labor market, and whether or not it would be realistic to expect whether any employer would hire him. Q. What were your opinions? A. Well, his preinjury vocational profile was as an individual who had a high school education, had a work background performing jobs such as a correctional officer, a cleaner or a warehouse man, automobile mechanic, and had always performed physically active jobs, he had never performed sedentary jobs or easy jobs. Prior to his injury on April 11, 2012 he had vocational limitations and barriers, and that he had had an upper extremity surgery in 2000 that precluded his ability for reaching at the elbow, and he was actually terminated from his employment as a result of that injury. He had a significant preexisting injury in 2011 with a low back surgery, which precluded his ability to do heavy lifting and, therefore, Mr. Moss had an upper extremity and a low back injury prior to his injury on April 2012 that constituted a hinderance [sic] and obstacle to employment. Following his injury on 2012 he had a right shoulder replacement and has not been able to return to his job and has been placed on Social Security Disability income. Therefore, my first opinion is that he is unable to return to his previous employment. He cannot do the job of a correctional officer, nor in my opinion can he perform any of the heavy jobs that he’s performed in the past as a warehouse man, an auto mechanic or a truckdriver. Dr. Hopkins in his report of November 17, 2014 notes that Mr. Moss has a prior history of work incurred, low back injury requiring and resulting in persistent back



and leg pain, and that he does have restricted lumbar motion with reflex dissymmetry and loss of sensation in right lower extremity. And Mr. Hopkins places Mr. Moss at the sedentary physical demand with the need to change positions as needed. At the sedentary physical demand based upon the preexisting back condition, Mr. Moss is limited to jobs that require good use of the upper extremity, because sedentary jobs are done from a seated position, then one is required to use your upper extremities to reach and handle. And Dr. Hopkins goes on to note based upon the right upper extremity, “He will not be capable of repetitive right upper extremity work.” So, therefore, based upon the comments of Dr. Hopkins, it is my opinion that Mr. Moss is now totally precluded from all jobs in the labor market because it’s the combination of his preexisting low back problems, which cause him to have to be in a sitting position with the ability to change positions, in the combination with the limitations that Dr. Hopkins has provided to the right upper extremity. So given the combination of his current injury to the right extremity with the preexisting low back problems, Mr. Moss in my opinion is now totally vocationally disabled. Dr. Satterlee who is the surgeon, in his report of December 10, 2014 limits Mr. Moss to lifting at 10 pounds, that would place Mr. Moss at the sedentary physical demand category. In my opinion, Dr. Satterlee is only commenting on the right shoulder as that’s his specialty, and he is not commenting on the preexisting back. At sedentary work, Mr. Moss has no sedentary skills, so he would be limited to sedentary unskilled work, which is approximately 4 percent of the jobs in the labor market. If you look at Chillicothe and Cameron, Missouri, there are some jobs I’m sure that I could go up there and find that would be a cashier job at the Flying J or at Dollar General or places like that that would be sedentary, unskilled cashier jobs. However, in all honesty, when you consider that this man is 61, that he has a high school education, that he’s looking at sedentary unskilled jobs, and if an employer finds out that he has a history of a carpal tunnel release, a right elbow surgery, a right shoulder replacement surgery and a low back surgery, they’re not going to hire him even for unskilled jobs. And, therefore, again, based upon his age, his limited education, his lack of skills and his current restrictions, in combination with his history of his preexisting conditions, an employer is not going to place him in a job and he’s, therefore, still going to be totally



disabled. But it continues to be my opinion that his total disability is going to be related to his entire vocational profile, which includes his preexisting conditions. Q. And the preexisting are the right elbow, the right wrist from the carpal tunnel and the low back? A. Yes, ma’am. Q. So basically it’s your opinion that he’s totally vocationally disabled and that his total disability is the result of his injury of April 11, 2012 in combination with his preexisting low back and other medical conditions, correct? A. Yes, ma’am. Q. And he is right-handed, correct? A. Yes.

Mr. Cordray agreed Claimant was working full duty without restrictions when he

had his April 11, 2012 injury. Id. at 34. Claimant was able to perform light duty work answering the telephone in the control room for several months after his work injury. He stopped work because his light duty time expired, not because he was incapable of performing the duties of answering the telephone. Id. at 36. Claimant’s vocational testing showed he is capable of general clerical work. Id. at 37. Mr. Cordray did not consider the time that Claimant was working light duty answering phones was employment in the open labor market. Id. at 38-39. He testified Claimant could not work full time in a clerical position. Id. at 39. Mr. Cordray noted that in order for Claimant to do training, he would have to maintain a captive sitting position. That countered the comments of Dr. Hopkins in his report. Id. at 40.

Mr. Cordray’s December 30, 2015 report, Cordray Deposition Exhibit 2, notes at

page 5 that Claimant was not working at the time of the evaluation, and that Claimant told Mr. Cordray that following his injury, he worked light duty from April 2012 until February 2013, when his light duty time was expired.

Evaluation of Kristine Skahan

The deposition of Kristine Skahan taken on October 27, 2015, with deposition exhibits, was admitted as Exhibit 2. Ms. Skahan is a vocational consultant and is a Certified Rehabilitation Counselor and a Qualified Rehabilitation Provider. (Skahan



deposition, pages 5-6). She has a Masters Degree in Community Service Counseling. Id. at 6. She identified her March 17, 2015 report, Skahan deposition Exhibit 2. She interviewed and evaluated Claimant on February 6, 2015. Id. at 9. Ms. Skahan testified regarding portions of her March 17, 2015 report. Her testimony is consistent with the report. She testified sedentary job demand level is defined as sitting six to eight hours per day out of an eight hour workday and occasional standing and walking, which is defined up to two and one-half hours a day, with a maximum amount in terms of weight lifting of 10 pounds. Id. at 13-14. She described Dr. Hopkins’s restrictions. Id. at 14-15. She described Claimant’s educational background. She noted he was 61 years old. She described his Wide Range Achievement Test results. Id. at 16-17. She noted Claimant did not have experience doing things like keyboarding or computer work other than very basic data entry. Id. at 18-19. Ms. Skahan testified that Claimant being restricted to sedentary pretty much eliminates all of his past jobs. Id. at 19. She concluded he could not return to any of his past work. Claimant had not learned any skills that he could transfer into a sedentary job. Id. at 21. Ms. Skahan discussed Claimant’s symptoms and abilities. Id. at 23-26. Ms. Skahan was asked the following questions and gave the following answers at Skahan deposition, pages 31-32:

Q. What is your opinion on Mr. Moss’s ability to return to the open labor market then?

A. Well, in my conclusion I said that he has a total loss to the

open competitive labor market and I said it was due to a combination of the severity of his physical restrictions.

Q. When you say a combination, do you mean those

referencing the injury of April 11th, 2012 plus restrictions addressing preexisting conditions as well?

A. Yes. Q. And his inability to do sedentary work, though, I’m looking

at the bottom of page 13, are you saying that his inability to perform sedentary work is only because of the restrictions for the upper extremity?

A. When you – when you’re looking at the upper extremity

restrictions -- I’m sorry, Dr. Hopkins. I mean obviously the inability



to use the right upper extremity restrictions – let me go back to Dr. Cohen’s restrictions – I’m sorry, Dr. Hopkins. I mean obviously the inability to use the right upper extremity repetitively restricts his ability to perform sedentary level work and then the ten pounds puts him down at sedentary and then the repetitive bending of the waist no more than occasional also is putting him at less than sedentary because he’s going to be bending all day when he’s sitting down because you have to bend at the waist in order to sit. So those are my assessments of why.

Q. So based on that, your opinion is based on – sorry. Based

on those restrictions that you just gave, those address both the shoulder as well as preexisting conditions as well?

A. Yes. And also his need to change positions as needed and

his description of changing from sitting to standing to walking also would play into that, which matches his restrictions from Dr. Hopkins. That also impacts his ability to perform full time sedentary work and that I understood to be part of his back, which is changing positions.

It is Ms. Skahan’s ultimate conclusion that Claimant is permanently totally disabled and that is a result of the injury of April 2012 in combination with his pre-existing conditions. All of her opinions had been given within a reasonable degree as a vocational rehabilitation counselor. Id. at 33.

Claimant told Ms. Skahan that he could not have any restrictions in order to keep working at his job. Id. at 35.

Ms. Skahan was asked the following questions and gave the following answers at Skahan deposition, pages 36-37:

Q. When he talked to you about having the prior history of

shoulder or neck – well, you said he did not have a prior history of shoulder or neck problems, but he did have the non work-related carpal tunnel operation on the right upper extremity and he had a history of work-related injuries to the back lumbar region and in 2011 where he had the surgery on the back and then the elbow in 2003, which required surgery, correct?

A. Yes.



Q. Did you consider those prior injuries to be hindrances or obstacles to his employment prior to April, 2012?

A. I did, because I followed the restrictions that were laid out

for me from the report from Dr. Hopkins because he clearly stated – and it appeared to me when I went back to the being put down at sedentary and the changing positions, some of those to me related to the back and some of them were directly stated were close to the back from the doctor.

Ms. Skahan testified that it is a combination of the prior low back condition with a

prior right elbow and carpal tunnel with the effects of the last injury on April 11, 2012 to his right shoulder which are rendering Claimant unemployable and permanently and totally disabling. Id. at 47. Claimant told her he was having problems at work before April 2012 due to the prior back injury. Id. at 48.

Ms. Skahan did not think Claimant was capable of performing part-time work

because he still cannot use his upper extremity the way he would need to for even part-time work. Id. at 52.

Ms. Skahan was asked the following question and gave the following answer at

Skahan deposition, pages 53-54:

Q. Would you agree that at least according to Dr. Hopkins that Mr. Moss is capable of working at the sedentary level?

A. No, because he’s - - the way that I read the restrictions,

when he is needing to change positions as needed and then when he is not capable of using the right upper extremity repetitively and then also not capable of repetitive bending from the waist more than occasionally, I think those are all limitations that would prevent him from working full time sedentary.

Ms. Skahan’s March 17, 2015 report, Skahan Deposition Exhibit 2, notes at pages

2-3 that Claimant reported to Ms. Skahan that he was placed on light duty on April 12, 2012, and that his accommodated job lasted approximately six months. Her report states Claimant could not remember the exact date this job ended, and Claimant stated he had not worked since his accommodated job ended.

Ms. Skahan’s March 17, 2015 report states in part:



Conclusions: Therefore, he would be unable to perform the usual duties of any job for which he is qualified for, and would not be hired by an employer in the open competitive labor market in the normal course of business. . . . . . . . . . .

It appears that the total vocational disability and loss of access to the open competitive labor market is due to a combination of the back injury in 2011 and the shoulder injury that occurred on 4/11/12 while working as a Corrections Officer 1 for the Western Missouri Correctional Facility, as well as his previous injuries to his upper right dominant extremity and low back. My opinions in this case are offered with a reasonable degree of certainty in my profession as a vocational rehabilitation counselor.

Exhibit 3 contains copies of records of the Missouri Division of Worker’s

Compensation pertaining to Claimant. Exhibit 3 includes a Report of Injury in number 97029696 that identified a twisted right knee with the date of injury of March 29, 1997.

Exhibit 3 includes a Stipulation for Compromise Settlement in Injury Number 03-087690 relating to an injury on or about July 30, 2003. The Stipulation was approved on August 27, 2004 and states that the settlement is based upon approximate disability of “15% of RUE at the 210-week level.” The Stipulation states a report of Dr. Newland is attached. Dr. Newland’s report dated May 24, 2004 states in part, “Plan: A 10% rating at the level of the elbow seems appropriate. I would not deem him to have any particular restrictions. I would anticipate that he would have difficulty lifting more than 40 pounds or so with that right arm and this may be on a permanent basis.”

Exhibit 9 contains an itemization of expenses of Van Camp law firm in the total amount of $5,145.67. Exhibit 10 is a Contingent Fee Agreement between Claimant and Van Camp law firm that provides in part, “The legal fee of attorney shall be 25% of the gross amount recovered for disputed Workers’ Compensation benefits. However, client is responsible for all expenses incurred in the prosecution of the claim.”



Rulings of Law

Based on the substantial and competent evidence, the stipulations of the parties, and the application of the Workers’ Compensation Law, I make the following Rulings of Law: 1. What is the nature and extent of Claimant’s permanent disability, and what is Employer’s liability for permanent partial disability benefits, or in the alternative, for permanent total disability? a. What is the degree of Claimant’s disability from his injury on April 11, 2012 considered alone? Section 287.800, RSMo1 provides in part that administrative law judges shall construe the provisions of this chapter strictly and shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

Section 287.808, RSMo provides:

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

Section 287.020.2, RSMo provides:

The word ‘accident’ as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

1 All statutory references are to RSMo 2006 unless otherwise indicated. In a workers’ compensation case, the statute in effect at the time of the injury is generally the applicable version. Chouteau v. Netco Construction, 132 S.W.3d 328, 336 (Mo.App. 2004); Tillman v. Cam’s Trucking Inc., 20 S.W.3d 579, 585-86 (Mo.App. 2000). See also Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo.App. 2007).



Section 287.020.3, RSMo provides in part:

3. (1) In this chapter the term ‘injury’ is hereby defined to be an injury 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 disability. (2) An injury shall be deemed to arise out of and in the course of the employment only if: (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. (3) An injury resulting directly or indirectly from idiopathic causes is not compensable. (5) The terms ‘injury’ and ‘personal injuries’ shall mean violence to the physical structure of the body. . . .

Section 287.020.10, RSMo provides:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of ‘accident’, ‘occupational disease’, ‘arising out of’, and ‘in the course of the employment’ to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

The workers' compensation claimant bears the burden of proof to show that her

injury was compensable in workers' compensation. Johme v. St. John's Mercy Healthcare, --- S.W.3d ----, 2012 WL 1931223 (Mo.) (citing Sanderson v. Producers Comm'n Ass'n, 360 Mo. 571, 229 S.W.2d 563, 566 (Mo. 1950).



“In a workers' compensation case, the claimant carries the burden of proving all essential elements of the claim.” Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo.App. 1990), overruled in part on other grounds by Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 230 (Mo.banc 2003)2. The employee must establish a causal connection between the accident and the claimed injuries. Thorsen v. Sachs Elec. Co., 52 S.W.3d 616, 618 (Mo.App.2001); Williams v. DePaul Ctr, 996 S.W.2d 619, 625 (Mo.App. 1999); Decker v. Square D Co., 974 S.W.2d 667, 670 (Mo.App. 1998); Fischer, 793 S.W.2d at 198. Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. Kelley v. Banta & Stude Constr. Co. Inc., 1 S.W.3d 43, 48 (Mo.App. 1999); Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo.App. 1992) ), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 229 (Mo. banc 2003); Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 162 (Mo.App. 1986). The Commission's decision will generally be upheld if it is consistent with either of two conflicting medical opinions. Smith v. Donco Const., 182 S.W.3d 693, 701 (Mo.App. 2006). The acceptance or rejection of medical evidence is for the Commission. Smith, 182 S.W.3d at 701; Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 263 (Mo.App. 2004). The Commission may not arbitrarily disregard and ignore competent, substantial, and undisputed evidence of witnesses who are not shown by the record to have been impeached and the Commission may not base its findings upon conjecture or its own mere personal opinion unsupported by sufficient and competent evidence. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 907 (Mo.App. 2008), citing Copeland v. Thurman Stout, Inc., 204 S.W.3d 737, 743 (Mo.App. 2006). The testimony of Claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of disability when taken in connection with or where supported by some medical evidence. Pruteanu v. Electro Core, Inc., 847 S.W.2d 203, 206 (Mo.App. 1993), 29; Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo.App 1992); Fischer, 793 S.W.2d at 199. The trier of facts may also disbelieve the testimony of a witness even if no contradictory or impeaching testimony appears. Hutchinson, 721 S.W.2d at 161-2; Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo.App. 1980). The

2Several cases are cited herein that were among many overruled by Hampton on an unrelated issue (Id. at 224-32). Such cases do not otherwise conflict with Hampton and are cited for legal principles unaffected thereby; thus Hampton's effect thereon will not be further noted.



testimony of the employee may be believed or disbelieved even if uncontradicted. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo.App. 1993). The determination of the degree of disability sustained by an injured employee is not strictly a medical question. Landers v. Chrysler Corp., 963 S.W.2d 275, 284 (Mo.App. 1997); Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 908 (Mo.App. 2008); Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502, 505 (Mo.App. 1989). While the nature of the injury and its severity and permanence are medical questions, the impact that the injury has upon the employee's ability to work involves factors, which are both medical and nonmedical. Accordingly, the Courts have repeatedly held that the extent and percentage of disability sustained by an injured employee is a finding of fact within the special province of the Commission. Sharp v. New Mac Elec. Co-op, 92 S.W.3d 351, 354 (Mo.App. 2003); Elliott v. Kansas City, Mo., School District, 71 S.W.3d 652, 656 (Mo.App. 2002); Sellers, 776 S.W.2d at 505; Quinlan v. Incarnate Word Hospital, 714 S.W.2d 237, 238 (Mo. App. 1985); Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo.App. 1983); Barrett v. Bentzinger Bros., 595 S.W.2d 441, 443 (Mo.App. 1980); McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 289 (Mo.App. 1968). The fact-finding body is not bound by or restricted to the specific percentages of disability suggested or stated by the medical experts. Cardwell, 249 S.W.3d at 908; Lane v. G & M Statuary, Inc., 156 S.W.3d 498, 505 (Mo.App. 2005); Sharp, 92 S.W.3d at 354; Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 885 (Mo.App. 2001); Landers, 963 S.W.2d at 284; Sellers, 776 S.W.2d at 505; Quinlan, 714 S.W.2d at 238; Banner, 663 S.W.2d at 773. It may also consider the testimony of the employee and other lay witnesses and draw reasonable inferences in arriving at the percentage of disability. Cardwell, 249 S.W.3d at 908; Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886, 892 (Mo.App. 1975).

“The evaluation of medical testimony concerning a claimant's disability is within the peculiar expertise of the Commission, and, as such, the Commission is free to disbelieve the testimony of the claimant's medical expert.” Tombaugh v. Treasurer of State, 347 S.W.3d 670, 675 (Mo.App. 2011). The finding of disability may exceed the percentage testified to by the medical experts. Quinlan, 714 S.W.2d at 238; McAdams, 429 S.W.2d at 289. The Commission “is free to find a disability rating higher or lower than that expressed in medical testimony.” Jones v. Jefferson City School Dist., 801 S.W.2d 486, 490 (Mo.App. 1990); Sellers, 776 S.W.2d at 505. The Court in Sellers noted that “[t]his is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, ‘the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical



in nature.’” Sellers, 776 S.W.2d at 505. The uncontradicted testimony of a medical expert concerning the extent of disability may even be disbelieved. Gilley v. Raskas Dairy, 903 S.W.2d 656, 658 (Mo.App. 1995); Jones, 801 S.W.2d at 490. “While we recognize that the Commission does not have ‘to accept competent substantial evidence as true, the Commission cannot, nevertheless, arbitrarily cast aside competent, substantial, and undisputed testimony of witnesses who are not shown by the record to have been impeached.’” Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 800-01 (Mo. App. 2011) (citations omitted). Section 287.190.2, RSMo provides:

(2) Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

The Court in Cantrell v. Baldwin Transp., Inc., 296 S.W.3d 17 (Mo.App. 2009)

states at 20:

Permanent partial disability benefits are provided for in § 287.190, RSMo Supp.2005. A “permanent partial disability” is a disability that is permanent in nature and partial in degree. § 287.190.6(1). The level of permanent partial disability associated with an injury cannot be determined until the injury “reaches a point where it will no longer improve with medical treatment” or, in other words, reaches maximum medical improvement. Cardwell v. Treasurer of State, 249 S.W.3d 902, 910 (Mo.App.2008).

The burden of establishing permanent total disability lies with the claimant. Schuster v. State, Division of Employment Security, 972 S.W.2d 377, 381 (Mo.App. 1998); see Carkeek v. Treasurer of State-Custodian of Second Injury Fund, 352 S.W.3d 604, 608 (Mo.App. 2011) (An employee has the burden to establish permanent total disability by introducing evidence to prove her claim); see also Clark v. Harts Auto Repair, 274 S.W.3d 612, 16 (Mo.App. 2009).



The court in Carkeek v. Treasurer of State-Custodian of Second Injury Fund, 352 S.W.3d 604 (Mo.App. 2011) states at 610:

The question whether a claimant is totally and permanently disabled is not exclusively a medical question. Crum v. Sachs Elec., 769 S.W.2d 131, 136 (Mo.App.1989), overruled in part by Hampton, 121 S.W.3d at 220. The Commission, in arriving at its ultimate conclusion as to the degree of a claimant's disability, need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 239 (Mo.App.2003).

The court in Michael v. Treasurer, 334 S.W.3d 654 (Mo.App. 2011) states at 662:

The SIF, however, has no obligation to present conflicting or contrary evidence on the claim for permanent total disability benefits. Dunn v. Treasurer of Mo., 272 S.W.3d 267, 275 (Mo.App.2008). Rather, Claimant “must prove the nature and extent of any disability by a reasonable degree of certainty.” Elrod v. Treasurer of Mo., 138 S.W.3d 714, 717 (Mo. banc 2004).

Section 287.220.1, RSMo (2006) provides in part:

All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the



employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the ‘Second Injury Fund’ hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141.

The Court in Lewis v. Treasurer of State, 2014 WL 2928017 (Mo.App. E.D. 2014) states:

Fund liability for PTD under Section 287.220.1 occurs when the claimant establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. Highley, 247 S.W.3d at 55; Section 287.220.1. For a claimant to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the



preexisting disabilities resulted in PTD. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo.App. E.D.2007); Section 287.220.1.

In deciding whether the fund has any liability, the first determination is the degree

of disability from the last injury considered alone. Michael, 334 S.W.3d at 663; Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. banc 2003); Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App. 2000). Accordingly, pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined. If the last injury in and of itself renders the employee permanently and totally disabled, then the fund has no liability and the employer is responsible for the entire amount of compensation. Landman, 107 S.W.3d at 248; Hughey, 34 S.W.3d at 847.

The court in Knisley v. Charleswood Corp., 211 S.W.3d 629 (Mo. App. 2007)

states at 634-35:

To prevail against the SIF on a claim for permanent total disability, a claimant must establish that: (1) she had a permanent partial disability at the time she sustained the work-related injury and (2) the pre-existing permanent partial disability was of such seriousness as to constitute a hindrance or obstacle to her employment. Section 287.220.1 RSMo 2000; Motton v. Outsource Intern., 77 S.W.3d 669, 673 (Mo.App. E.D.2002). “The test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment.” Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 811 (Mo.App. E.D.2000) (overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)); Garrone v. Treasurer of State of Missouri, 157 S.W.3d 237, 244 (Mo.App. E.D.2004). The primary determination is whether an employer can reasonably be expected to hire the employee, given his or her present physical condition, and reasonably expect the employee to successfully perform the work. 157 S.W.3d at 244.

The Court in In re Premium Standard Farms, Inc., 430 S.W.3d 351 (Mo. App. 2014) states at 355-56:

In order to impose liability on the Fund, a claimant must have had a ‘pre-existing permanent partial disability [that] existed at the time the work-related injury was sustained and [that] was of such seriousness as to constitute a hindrance or obstacle to employment or reemployment.’ Muller v. Treasurer of Missouri, 87 S.W.3d 36, 40 (Mo.App.2002). ‘To determine whether a pre-existing partial



disability constitutes a hindrance or obstacle to the employee's employment, the Commission should focus on the potential that the pre-existing injury may combine with a future work related injury to result in a greater degree of disability than would have resulted if there was no such prior condition.’ E.W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App. 2002) (internal quotations omitted).2

. . . . . . . . . . Second, the Fund focuses its argument on the lack of difficulties that the pre-existing condition caused in the past. However, the focus should be ‘on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.’ Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo.App.1995); see also Concepcion v. Lear Corp., 173 S.W.3d 368, 371 (Mo.App.2005); Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo.App.1997).

Section 287.020.7, RSMo provides: “The term ‘total disability’ as used in this

chapter shall mean inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident.” The phrase "inability to return to any employment" has been interpreted as “the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment.” Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App. 1982). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Knisley, 211 S.W.3d at 635; Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo.App. 2001); Reiner v. Treasurer of the State of Mo., 837 S.W.2d 363, 367 (Mo.App.1992); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 792 (Mo.App. 1992).

Total disability means the "inability to return to any reasonable or normal

employment." Lawrence, 834 S.W.2d at 792; Brown v. Treasurer of Missouri, 795 S.W.2d 479, 483 (Mo.App.1990); Kowalski, 631 S.W.2d at 992. An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Brown, 795 S.W.2d at 483 The key question is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Lewis v. Kansas University Medical Center, 356 S.W.3d 796, 800 (Mo.App. 2011); Molder v. Missouri State Treasurer, 342 S.W.3d 406, 411,



(Mo.App. 2011); Carkeek, 352 S.W.3d at 608; Knisley, 211 S.W.3d at 635; Brown, 795 S.W.2d at 483; Reiner, 837 S.W.2d at 367; Kowalski, 631 S.W.2d at 922. See also Thornton v. Hass Bakery, 858 S.W. 2d 831, 834 (Mo.App. 1993).

The court in Knisley, 211 S.W.3d states at 635:

Section 287.200.1 does not require a claimant to distinguish each disability and assign a separate percentage for each of several pre-existing disabilities to prevail on a claim for permanent total disability. Section 287.200.1; See Vaught v. Vaughts, Inc., 938 S.W.2d 931, 942 (Mo.App. S.D.1997) (overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)). Rather, a claimant must establish the extent, or percentage, of the permanent partial disability resulting from the last injury only, and prove that the combination of the last injury and the pre-existing disabilities resulted in permanent total disability. Id.

See also, Lewis v. Treasurer of State, 435 S.W.3d 144 (Mo.App. 2014). The court in Vaught, 938 S.W.2d 931, states at 939:

As explained in Stewart, id. at 854, § 287.220.1 contemplates that where a partially disabled employee is injured anew and sustains additional disability, the liability of the employer for the new injury “may be at least equal to that provided for permanent total disability.” Consequently, teaches Stewart, where a partially disabled employee is injured anew and rendered permanently and totally disabled, the first step in ascertaining whether there is liability on the Second Injury Fund is to determine the amount of disability caused by the new accident alone. Id. The employer at the time of the new accident is liable for that disability (which may, by itself, be permanent and total). Id. If the compensation to which the employee is entitled for the new injury is less than the compensation for permanent and total disability, then in addition to the compensation from the employer for the new injury, the employee (after receiving the compensation owed by the employer) is entitled to receive from the Second Injury Fund the remainder of the compensation due for permanent and total disability. § 287.220.1

The Court in Carkeek v. Treasurer of State-Custodian of Second Injury Fund, 352 S.W.3d 604 (Mo.App. 2011) states at 610:



Thus, we may defer to the Commission's finding on a technical matter, such as the employability of an individual, which is within the Commission's expertise. See Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994), overruled in part by Hampton, 121 S.W.3d at 220. . . . . . . . . . . Even if Koprivica had his opinion as to the extent of disability, such opinion is not so medically technical as to remove it from the expertise that is attributed to the Commission. The question whether a claimant is totally and permanently disabled is not exclusively a medical question. Crum v. Sachs Elec., 769 S.W.2d 131, 136 (Mo.App.1989), overruled in part by Hampton, 121 S.W.3d at 220. The Commission, in arriving at its ultimate conclusion as to the degree of a claimant's disability, need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 239 (Mo.App.2003).

The Court in Brashers v. Treasurer of State as Custodian of Second Injury Fund, 442 S.W.3d 152 (Mo. App. 2014), reh'g and/or transfer denied (Aug. 13, 2014), transfer denied (Oct. 28, 2014), states at 162-63:

We agree with Claimant that the fact that she maintained employment after the work injury until December 2009 “does not preclude a finding that she was [PTD] based on [the work injury] and her preexisting disabilities.” The relevant test remained whether she could compete in the open labor market. Blackshear, 420 S.W.3d at 681. “The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition.” Schussler, 393 S.W.3d at 96. “[N]either the worker's ability to engage in occasional or light duty work nor the worker's good fortune in obtaining work other than through competition on the open labor market should disqualify the worker from receiving such *163 total disability benefits under the Workers' Compensation Law.” Minnick v. S. Metro Fire Prot. Dist., 926 S.W.2d 906, 910 (Mo.App.W.D.1996). Thus, while Claimant returned to work for SPS after her work injury, this did not necessarily mean that she was not PTD or that SPS would have hired her at that time given her then-existing physical condition.7



Claimant testified that SPS terminated her employment, and Mr. Lala opined that Claimant was PTD at the time he evaluated her after the work injury.

8 CSR 50–2.010(14) states in part, “Prior to hearing, the parties shall stipulate

uncontested facts and present evidence only on contested issues.” Such stipulations “are controlling and conclusive, and the courts are bound to enforce them.” Hutson v. Treasurer of Missouri as Custodian of Second Injury Fund, 369 S.W.3d 269, 2012 WL 1319428 (Mo.App. 2012) (citing Boyer v. Nat'l Express Co., 29 S.W.3d 700, 705 (Mo.App. 2001)).

The parties stipulated that on or about April 11, 2012, Claimant sustained an injury by accident in Cameron, Dekalb County, Missouri, arising out of and in the course of his employment.

Claimant credibly testified he sustained an injury to his right shoulder at work on April 11, 2012 when he and another employee each picked up an end of a footlocker and began carrying it up steps, the other employee stumbled and dropped the footlocker, and Claimant’s right arm caught the weight of the footlocker and his right arm was yanked, and I so find.

The treating and evaluating doctors diagnosed Claimant’s right shoulder injury sustained by Claimant at work on April 11, 2012. Claimant’s treatment to his right shoulder following the injury has been discussed earlier in this Award. Claimant has had two right shoulder surgeries for the work injury, including shoulder replacement surgery. Dr. Hopkins stated Claimant sustained injuries to his right upper extremity at the shoulder as a direct and prevailing factor of injuries that he sustained on or about April 11, 2012, when he was carrying an approximate 100 pound footlocker with a fellow employee who dropped his side and he injured his right shoulder. Dr. Hopkins believed this injury is the direct and prevailing factor requiring treatment including two operations, extensive physical therapy and ultimately a total joint replacement at the right shoulder. I find these opinions of Dr. Hopkins are credible.

Claimant credibly described ongoing right shoulder complaints and limitations after the April 11, 2012 injury. He has constant aching and soreness in his right shoulder. He has limitation of motion in his right upper extremity. He has difficulty performing some activities and is unable to perform other activities because of his shoulder condition.

Claimant indicated to Dr. Hopkins that after his injury, he had difficulty lying

down and had developed night pain in the right shoulder interfering with his sleep. Dr. Hopkins noted Claimant had difficulty lifting, carrying, grasping, pushing, or pulling or



reaching with his right upper extremity, and also had difficulty climbing ladders because it required use of his right arm. He had interference with his activities of daily living such as washing his back, opening heavy doors or drawers, lifting pots and pans, shoveling dirt, reaching behind him, reading the paper, or other activities at work. Claimant could not do heavy lifting, pushing, or pulling.

I believe Claimant’s testimony regarding his limitations, symptoms, and

complaints.

I find and conclude that on April 11, 2012, Claimant sustained a compensable injury by accident arising out of and in the course of his employment for Employer. I find and conclude Claimant’s April 11, 2012 accident was the prevailing factor in causing a right shoulder injury, and the need for medical treatment, and resulting permanent disability.

Dr. Satterlee assigned a 10 pound lifting restriction due to the April 11, 2012 injury. Dr. Satterlee gave Claimant a permanent partial impairment rating of 30% of the right shoulder. I find this rating is not credible or persuasive.

Dr. Hopkins states in his November 17, 2014 report that Claimant has a

combination of a musculoskeletal injury to his shoulder with loss of motion, loss of muscle mass, weakness and instability in association with right upper extremity, and loss of sensation, grip strength, and intrinsic muscle control of his right hand. I find this opinion is credible and persuasive.

Dr. Hopkins assigned permanent partial disability ratings of 42% of the right upper

extremity at a 232-week level, 6% of which is due to preexisting factors as the direct and prevailing factor of his work injury, and 35% of the right upper extremity at the 232-week level. I find these ratings are not credible or persuasive. I find no evidence on this record to suggest that Claimant would be permanently and totally disabled by the effects of the April 11, 2012 injury considered alone and in isolation. No physician or vocational expert concluded Claimant is permanently and totally disabled based on the injury of April 11, 2012 considered alone in and of itself. Based on the competent and substantial evidence, and based on the application of the Workers’ Compensation Law, I find and conclude that Claimant is not permanently and totally disabled as a result of the April 11, 2012 injury alone considered in isolation.

Based on the competent and substantial evidence, and after careful consideration, I find and conclude that Claimant’s April 11, 2012 compensable work accident was the prevailing factor in causing permanent partial disability of 32.5% of the right upper extremity at the shoulder at the 232 week level, which is 75.4 weeks. I award Claimant



75.4 weeks of permanent partial disability from Employer at the rate of $370.19 per week, which amounts to $27,912.33. 2. Did Claimant have pre-existing permanent partial disability that combined with the disability from Claimant’s April 11, 2012 injury to create permanent total disability? a. Did Claimant have preexisting permanent partial disability at the time the April 11, 2012 primary injury was sustained that was a hindrance or obstacle to Claimant’s employment or to obtaining reemployment if Claimant becomes unemployed?

“When a claim is made against the Fund for permanent disability compensation, statutory language and case law make it mandatory that the Claimant provide evidence to support a finding, among other elements, that he had a preexisting permanent “disability.” (Omitting citations). The disability, whether known or unknown, must exist at the time the work-related injury was sustained, and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed.” Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo.App. 1999), overruled on other grounds by Hampton, 121 S.W.3d at 226; Luetzinger v. Treasurer of Mo., 895 S.W.2d 591 (Mo.App. 1995) (emphasis added). See also Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo.App. 2008).

Claimant had right carpal tunnel surgery in 1992. He lost grip strength in his right hand due to his carpal tunnel surgery. He had problems with his right hand consistently from 1992 until 2012.

Claimant injured his right elbow in 2000. He had surgery to his right elbow and

had weakness in his right elbow after the surgery. He was not able to pick up a five gallon bucket containing gas, dirt, or sand with his right arm after his right elbow surgery. He settled his right elbow injury at 15% at the 210 week level.

Claimant had problems with his low back before his April 2012 shoulder injury. He had back surgery before his 2012 work injury. He had difficulty bending and squatting after his back surgery. After his back surgery, he stopped carrying fence posts, picking up heavy rocks, using a maul, and using a post-hole digger at his farm. He has difficulty sitting more than thirty minutes due to his back condition.

When Claimant worked for Employer, he searched inmates and crawled under beds to search. That caused tightness and pain in his back. He sometimes stopped walking because of his back prior to his April 2012 injury. He tried to do things more slowly and more cautiously at work due to his back condition prior to his April 2012 injury. He did not want to reinjure his back.



Claimant has problems with his back if sits or stands for thirty minutes at a time. He gets stiffness and aching in his back after he sits for thirty minutes. He gets aching in his back, right hip, and legs after he stands for more than thirty minutes. He continues to have tightness in his low back. He uses Voltaren on occasion for pain in his back and shoulder. Dr. Hopkins stated Claimant has a prior history of a work-incurred low back injury requiring extensive treatment with finding of lumbar disk abnormalities primarily at the L4-5 and L5-S1 levels with persistent back and leg pain. Dr. Hopkins noted on his examination, Claimant had restricted lumbar motion with reflex dissymmetry and loss of sensation in his right lower extremity with persistent radicular symptoms on straight leg raising with evidences of a prior operation.

Dr. Hopkins believed this represents an additional 25% permanent partial disability of the lumbar spine at the 400-week level. Dr. Hopkins stated: “With a previous permanent partial disability of his lumbar spine, I believe that a previous injury and disability of the lumbar spine would create an obstacle to employment or reemployment if unemployed and needs consideration in his total disability.” I find these opinions are credible and persuasive.

It is vocational expert Michael Cordray’s opinion that “to have a history of carpal tunnel release, a [sic] elbow surgery, a back surgery, being terminated by job for a surgery, and ongoing back problems would pose a significant hindrance and obstacle to employment or reemployment if any employer would know that that individual had that history.” Mr. Cordray also testified the preexisting are the right elbow, the right wrist from the carpal tunnel, and the low back. I find these opinions are credible and persuasive. Vocational expert Christine Skahan testified she considered Claimant’s prior right carpal tunnel, right elbow, and lumbar back injuries with surgeries to be hindrances or obstacles to Claimant’s employment prior to April 2012. I find this opinion is credible and persuasive.

I find and conclude that Claimant suffered from preexisting permanent partially disabling conditions referable to his low back and right elbow at the time he sustained his April 11, 2012 injury. I am convinced these conditions were serious enough to constitute a hindrance or obstacle to employment.

I am convinced Claimant’s preexisting low back and right elbow conditions had

the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of these preexisting conditions, and I so find.



I am convinced that Claimant’s preexisting low back and right elbow conditions combined with subsequent work injury to cause greater disability than in the absence of the conditions, and I so find.

Based on the competent and substantial evidence, I also find and conclude that at

the time Claimant sustained his April 11, 2012 work injury, his permanent partial disability resulting from his preexisting low back and right elbow conditions was of such seriousness to constitute a hindrance or obstacle to Claimant’s employment or to his obtaining reemployment if he became unemployed.

b. Did Claimant’s preexisting permanent partial disability combine with the disability from Claimant’s April 11, 2012 injury to create permanent total disability? Employer and the Second Injury Fund assert in their post-hearing briefs that Claimant is not entitled to an award of permanent total disability benefits because no physician certified pursuant to section 287.190.6(2), RSMo that Claimant is totally disabled. This argument has recently been held to be without merit. The Court in Treasurer of the State of Missouri v. Majors, --- S.W.3d ----, 2016 WL 4613369, (Mo. Ct. App. No. WD 79465, Sept. 6, 2016), reh'g and/or transfer denied (Nov. 1, 2016), affirmed a decision of the Labor and Industrial Commission granting permanent total disability benefits against the Second Injury Fund even though no physician concluded the employee was permanently and totally disabled. The Court in Majors states in part:

It is no coincidence that vocational expert Cordray concluded that Majors was not able to compete for employment in the open labor market, given the severity of injury and physical restrictions associated with his workplace injury. SIF's attempt to foist a hyper-technical “magic words” test upon Dr. Stuckmeyer's testimony violates the dictate of our Supreme Court in Malam v. Dep't of Corr.3 directing us to consider the words of a medical expert and, in context, apply “the plain meaning of the medical expert's testimony.” This is precisely what the Commission has done in interpreting the plain meaning of Dr. Stuckmeyer's testimony and the Commission has not erred in doing so.

3The Missouri Supreme Court, in Malam v. State of Missouri, Department of Corrections, 492 S.W.3d 926, 929 (Mo. banc 2016), citing Mayfield v. Brown Shoe Co., 941 S.W.2d 31, 36 (Mo.App. 1997), states at 929: “As Missouri courts have recognized, ‘[T]he words a medical expert uses ... are often important, not so much in and of themselves, but as a reflection of what impression such witness wishes to impart.’”



. . . . . . . . .

SIF argues that the Commission should not have relied on non-physician vocational expert evidence in considering whether a permanent and total disability exists, and therefore the decision must be reversed. Again, SIF ignores direct precedent on this topic. “[T]he record need not contain a single expert opinion addressing the entirety of a claimant's conditions. Rather, the Commission may consider the opinions of multiple experts of differing specialties to arrive at its factual determination as to the parts and sum of a claimant's conditions.” Patterson v. Central Freight Lines, 452 S.W.3d 759, 767 (Mo.App.2015). Further, in a workers' compensation case, even “[t]he testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence.” ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 51 (Mo.App.2007) (internal quotation marks and citation omitted). It has been well established that the “degree of disability is not solely a medical question.” Id. (internal quotation marks and citation omitted). Here, in addition to crediting the opinion of Dr. Stuckmeyer who concluded that Majors suffers from two knee conditions, the Commission credited the testimony of Majors' vocational expert, Cordray. The Commission found that Cordray “persuasively” testified that “employee is unable to compete for work in the open labor market as a result of the combination of his pre-existing left knee conditions and the primary injury affecting his right knee.” SIF did not offer any contrary evidence as to vocational ability nor did SIF object to the presentation of this evidence. In weighing Cordray's testimony, the Commission reviewed his testimony from the administrative hearing wherein he testified extensively to Majors' ability (or lack thereof) to compete in the open labor market and whether an employer would reasonably be expected to hire Majors given his debilitating knee injuries, as is required by Section 287.190.2(6) RSMo. SIF's point on appeal is denied. Conclusion The Commission did not err in awarding permanent total disability benefits to Majors. The record reflects competent and substantial evidence supporting the Commission's decision. We affirm, therefore, the Commission's decision.



Based on the competent and substantial evidence, and based on the application of the Workers’ Compensation Law, I find and conclude that the combination of Claimant’s April 11, 2012 injury and Claimant’s preexisting permanent partial low back and right elbow disability that existed at the time he sustained his April 11, 2012 injury resulted in Claimant’s permanent total disability.

I find that Claimant is not able to compete in the open labor market. I find no

employer in the usual course of business, seeking persons to perform duties of employment in the usual and customary way would reasonably be expected to employ Claimant in his existing physical condition.

I find and conclude that Claimant is permanently and totally disabled owing to a

combination of his pre-existing disabling low back condition in combination with the effects of the April 11, 2012 injury work injury. The Second Injury Fund is liable for permanent total disability benefits. These conclusions are supported by the competent and substantial evidence including the following.

Claimant is not working. He is 62 years old. I find Claimant last worked in

February 2013. Claimant is able to sit for thirty minutes at a time and stand for thirty minutes at a

time without problems in his back. He gets stiffness and aching in his back after sitting for thirty minutes. He gets aching in his back, right hip, and legs after standing for more than thirty minutes. He continues to have tightness in his low back. He uses Voltaren on occasion for pain in his back and shoulder.

Claimant has difficulty sleeping because of pain in his right shoulder and arm. He

gets less than four hours sleep at night. He lies down during the day three to four times per week. He sometimes rests in a recliner during the day due to shoulder pain and back pain.

Claimant has significant limitations and restrictions as a result of his back, right elbow, and right shoulder conditions.

Dr. Hopkins stated:

Mr. Moss has very limited work capabilities. His ability to work would be limited to a sedentary occupation that requires mostly sitting, with the ability to change positions as needed. He will not be capable of repetitive right upper extremity work. His weight capability should be no more than 10 pounds from waist to shoulder using both hands. He is not capable of above shoulder work with his



right arm. He is not capable of repetitive bending from the waist more than on an occasional basis, from his previous lumbar spine injury.

I find these opinions of Dr. Hopkins are credible and persuasive. Vocational expert Terry Cordray testified:

So, therefore, based upon the comments of Dr. Hopkins, it is my opinion that Mr. Moss is now totally precluded from all jobs in the labor market because it’s the combination of his preexisting low back problems, which cause him to have to be in a sitting position with the ability to change positions, in the combination with the limitations that Dr. Hopkins has provided to the right upper extremity. So given the combination of his current injury to the right extremity with the preexisting low back problems, Mr. Moss in my opinion is now totally vocationally disabled.

Mr. Cordray also testified:

However, in all honesty, when you consider that this man is 61, that he has a high school education, that he’s looking at sedentary unskilled jobs, and if an employer finds out that he has a history of a carpal tunnel release, a right elbow surgery, a right shoulder replacement surgery and a low back surgery, they’re not going to hire him even for unskilled jobs. And, therefore, again, based upon his age, his limited education, his lack of skills and his current restrictions, in combination with his history of his preexisting conditions, an employer is not going to place him in a job and he’s, therefore, still going to be totally disabled. But it continues to be my opinion that his total disability is going to be related to his entire vocational profile, which includes his preexisting conditions.

I find these opinions of Mr. Cordray are credible and persuasive.

Mr. Cordray based his opinions on his education and training, his experience, his

review of the medical records and Claimant’s deposition testimony, his meeting with, testing, and evaluation of Claimant, and the physical restrictions and limitations of Dr. Hopkins and the treating surgeon, Dr. Satterlee.

Vocational expert Christine Skahan testified:



Q. What is your opinion on Mr. Moss’s ability to return to the open labor market then?

A. Well, in my conclusion I said that he has a total loss to the

open competitive labor market and I said it was due to a combination of the severity of his physical restrictions.

Q. When you say a combination, do you mean those

referencing the injury of April 11th, 2012 plus restrictions addressing preexisting conditions as well?

A. Yes.

Ms. Skahan also testified that it is a combination of Claimant’s prior low back

condition with the prior right elbow and carpal tunnel with the effects of the last injury on April 11, 2012 to his right shoulder which are rendering Claimant unemployable and permanently and totally disabling.

I find these opinions of Ms. Skahan are credible and persuasive.

I find and conclude that Mr. Cordray’s and Ms. Skahan’s opinions are competent

and substantial evidence. The Second Injury Fund offered no vocational expert evidence to contradict, challenge, or impeach the opinions of Mr. Cordray or Ms. Skahan.

Since Claimant’s permanent and total disability is the result of the combination of his disabilities, the Second Injury Fund is liable for Claimant’s permanent total disability. The court in Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902 (Mo.App. 2008), stated at 910:

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. . . . . . . . . . . . Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.



Dr. Satterlee’s December 10, 2014 report notes Claimant’s last visit was

September 4, 2014. Claimant had a little discomfort with external rotation on September 4, 2014, and Dr. Satterlee continued Claimant on a lifting restriction of less than 10 pounds. Dr. Satterlee’s December 10, 2014 report states Claimant had reached maximum medical improvement and provided an MMI date of 06/30/2014.

Dr. Hopkins stated on November 17, 2014 that he believed Claimant is at

maximum medical improvement. The parties stipulated Claimant reached maximum medical improvement on

September 4, 2014. I find that Claimant’s right shoulder condition has not materially changed since September 4, 2014.

I find and conclude that Claimant’s April 11, 2012 injury reached the point where

no further progress was expected and would no longer improve with medical treatment on September 4, 2014. I find and conclude Claimant reached maximum medical improvement on September 4, 2014 in connection with his April 11, 2012 injury. The parties stipulated that the rate of compensation in Claimant’s April 11, 2012 injury is $370.19 per week for temporary total disability, permanent partial disability, and permanent total disability. I have previously found that the April 11, 2012 compensable work injury was the prevailing factor in causing permanent partial disability of 32.5% permanent partial disability of Claimant’s right upper extremity at the level of the shoulder at the 232-week level, which is 75.4 weeks.

I find that Employer’s liability for payment of permanent partial disability benefits for 75.4 weeks of compensation for permanent partial disability commenced on September 4, 2014. Since Claimant’s permanent and total disability is the result of the combination of his disabilities, the Second Injury Fund is liable for Claimant’s permanent total disability in this case. I therefore order and direct the Treasurer of the State of Missouri as Custodian of the Second Injury Fund to pay to Claimant, the sum of $370.19 per week beginning on February 14, 2016 and, thereafter, for the remainder of Claimant's lifetime, subject to review and modification as provided by law.



3. What is Employer’s liability, if any, for future medical aid?

Claimant is requesting an award of additional medical aid. Section 287.140, RSMo requires that the employer/insurer provide “such medical, surgical, chiropractic, and hospital treatment … as may reasonably be required … to cure and relieve [the employee] from the effects of the injury.” This has been held to mean that the worker is entitled to treatment that gives comfort or relieves even though restoration to soundness [a cure] is beyond avail. Greer v. SYSCO Food Servs., -- S.W.3d --, 2015 WL 8242710 (Mo banc 2015); Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 266 (Mo.App. 2004). Medical aid is a component of the compensation due an injured worker under Section 287.140.1, RSMo. Bowers, 132 S.W.3d at 266; Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App. 1996). The employee must prove beyond speculation and by competent and substantial evidence that his or her work related injury is in need of treatment. Williams v. A.B. Chance Co., 676 S.W.2d 1 (Mo.App. 1984). Conclusive evidence is not required. Farmer v. Advanced Circuitry Division of Litton, 257 S.W.3d 192, 197 (Mo. App. 2008); Bowers, 132 S.W.3d at 270; Landers v. Chrysler Corp., 963 S.W.2d 275, 283 (Mo.App. 1997).

The Missouri Supreme Court in Greer v. SYSCO Food Servs., 475 S.W.3d 655

(Mo. banc 2015) states at 673:

Greer need not present “conclusive evidence” that future medical treatment is needed to be entitled to an award of future medical benefits. Null v. New Haven Care Ctr., Inc., 425 S.W.3d 172, 180 (Mo.App.E.D.2014). Instead, Greer needs only to show a reasonable probability that the future treatment is necessary because of his work-related injury. Id. Future medical care should not be denied simply because an employee may have achieved maximum medical improvement. Pennewell v. Hannibal Reg'l Hosp., 390 S.W.3d 919, 926 (Mo.App.E.D.2013).

It is sufficient if Claimant shows by reasonable probability that he or she is in need

of additional medical treatment. Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511, 524 (Mo.App. 2011); Farmer, 257 S.W.3d at 197; ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 53 (Mo. App. 2007); Bowers, 132 S.W.3d at 270; Mathia, 929 S.W.2d at 277; Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo.App. 1995); Sifferman v. Sears, Roebuck and Co., 906 S.W.2d 823, 828 (Mo.App. 1995). “Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt.” Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo.App. 1986); Sifferman at 828. Section 287.140.1, RSMo does not require that the medical evidence identify particular procedures or treatments to be performed or administered. Tillotson, 347 S.W.3d 525; Forshee v. Landmark Excavating &



Equipment, 165 S.W.3d 533, 538 (Mo. App. 2005); Talley v. Runny Meade Estates, Ltd., 831 S.W.2d 692, 695 (Mo.App. 1992); Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 394 (Mo.App. 1983). The type of treatment authorized can be for relief from the effects of the injury even if the condition is not expected to improve. Farmer, 257 S.W.3d at 197; Bowers, 132 S.W.3d at 266; Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo.banc 2003). Future medical care must flow from the accident, via evidence of a medical causal relationship between the condition and the compensable injury, if the employer is to be held responsible. Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 83 (Mo.App. 2006). Once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id; Tillotson, 47 S.W.3d 519.

The court in Tillotson states at 347 S.W.3d 519:

The existing case law at the time of the 2005 amendments to The Workers' Compensation Law instructs that in determining whether medical treatment is “reasonably required” to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 83 (Mo.App. S.D.2006). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. Id.

The court in Tillotson states at 347 S.W.3d 524:

To receive an award of future medical benefits, a claimant need not show ‘conclusive evidence’ of a need for future medical treatment.” Stevens, 244 S.W.3d at 237 (quoting ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo.App.W.D.2007)). “Instead, a claimant need only show a ‘reasonable probability’ that, because of her work-related injury, future medical treatment will be necessary. A claimant need not show evidence of the specific nature of the treatment required. Id.

The court in Tillotson also states at 525:



In summary, we conclude that once the Commission found that Tillotson suffered a compensable injury, the Commission was required to award her compensation for medical care and treatment reasonably required to cure and relieve her compensable injury, and for the disabilities and future medical care naturally flowing from the reasonably required medical treatment.

Claimant has continuing complaints relating to his right shoulder. He continues to

take medication for pain in his right shoulder. He sees Dr. Satterlee yearly for checkups. He last saw Dr. Satterlee in September 2015 and will return in September 2016.

Dr. Satterlee’s December 10, 2014 report states that the shoulder replacement “will

require routine follow-up for surveillance of the prosthesis. At this time we will plan to see him back in one year, then probably every couple of years thereafter if he is doing well.” I find this opinion of Dr. Satterlee is credible and persuasive.

It is Dr. Hopkins’s opinion that:

The successful right shoulder replacement as performed by Dr. Satterlee could have an expected normal life of approximately 10 years. This raises the possibility of a required second operation on Mr. Moss’ right shoulder, which would be a direct and prevailing factor of his work-incurred injury on or about April 11, 2012.

I find these opinions of Dr. Hopkins are credible and persuasive.

Based on competent and substantial evidence and the application of the Missouri

Workers’ Compensation Law, I find Claimant will need additional medical aid to cure and relieve him from the effects of his April 11, 2012 compensable injury. Employer is directed to authorize and furnish additional medical treatment to cure and relieve Claimant from the effects of his April 11, 2012 injury, in accordance with section 287.140, RSMo. Attorney’s Fees

Claimant’s attorney is entitled to a fair and reasonable fee in accordance with Section 287.260, RSMo. An attorney's fee may be based on all parts of an award, including the award of medical expenses. Page v. Green, 758 S.W.2d 173, 176 (Mo.App. 1988). During the hearing, and in Claimant’s presence, Claimant’s attorney requested a fee of 25% of all benefits to be awarded. Claimant did not object to that request. Exhibit 10 is a Contingent Fee Agreement between Claimant and Van Camp law firm that



provides in part, “The legal fee of attorney shall be 25% of the gross amount recovered for disputed Workers’ Compensation benefits. However, client is responsible for all expenses incurred in the prosecution of the claim.” Exhibit 9 contains an itemization of expenses of Van Camp law firm in the total amount of $5,145.67.

I find Claimant’s attorney is entitled to and is awarded an attorney's fee of 25%

plus expenses of $5,145.67 of all amounts awarded for necessary legal services rendered to Claimant. The compensation awarded to Claimant shall be subject to a lien in the amount of 25% plus expenses of $5,145.67 of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant: Christine M. Kiefer. Made by:____/s/ Robert B. Miner________ Robert B. Miner Administrative Law Judge Division of Workers' Compensation

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