Issued by THE LABOR AND INDUSTRIAL RELATIONS ......HCA Health Midwest Research Medical Center (settled) Ace American Insurance Company (settled) Treasurer of Missouri as Custodian

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION (Reversing Award and Decision of Administrative Law Judge)

Employee:

Employer:

Insurer:

Additional Party:

Injury No.: 15-059529 Michael White

HCA Health Midwest Research Medical Center (settled)

Ace American Insurance Company (settled)

Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

Preliminaries The issues identified at hearing were 1) the nature and extent of permanent disability related to employee's February 3, 2015, occupational disease claim; 2) whether employee's preexisting disability was a hindrance or obstacle to maintaining employment or finding reemployment1; and 3) liability of the Second Injury Fund, if any.

Employee settled his claim against employer/insurer Research Medical Center/HCA Health Midwest/Ace American Insurance Co. c/o Broadspire Services, Inc. on January 28, 2019, for the lump sum of $17,265.00 based on approximate disability of 12.5% of the low back.

The administrative law judge found the Second Injury Fund liable for permanent total disability benefits pursuant to § 287.220.3 RSMo.

The Second Injury Fund filed a timely application for review alleging the administrative law judge erred because 1) a medical expert found there was no work injury; 2) employee's rating physician found that if employee was permanently and totally disabled it was due to the last accident; 3) all the prior injuries admitted into evidence did not meet the fifty-week required standard to combine with the current injury to trigger Second Injury Fund liability; 4) the experts that opined that employee was permanently and totally disable based on a combination of current and prior injuries used prior injuries that did not reach the fifty-week required standard under§ 287.220(.3]; and 5) the administrative law judge used old physician ratings contemporaneous with the prior

1 The transcript records the parties' stipulation of a dispute as to whether employee's preexisting permanent partial disability was "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." Transcript, p. 4. Section 287.220.3, the statute that applies to employee's 2015 injury claim, does not condition Second Injury Fund liability on proof of this element. The administrative law judge's award included no findings on the issue; nor did the parties address it in their briefs. We deem the issue abandoned for purposes of this appeal.

Injury No.: 15-059529 Employee: Michael White

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injuries and ignored the ratings in the settlement stipulations for those prior injuries in finding the Second Injury Fund liable for permanent total disability.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Findings of Fact Employee, a floor technician, laundry, and transport worker, claimed progressive injury to his back from May 2011 to February 3, 2015, relating to job duties involving floor stripping, using a stick with a razor blade to remove wax at baseboards, operating buffing machines, a micro mop, and wet vacuums, moving furniture, beds, loaded desks, file cabinets, pulling trash and handling soiled linens.

Employee worked for employer herein from May 23, 2011, to February 3, 2015, as a floor technician and in laundry and patient transport. Employee's work involved tasks that involved heavy lifting and repeated bending, stooping, and twisting while at work. His medical records and testimony reflect continued and increasing pain and symptoms. Dr. Brent Koprivica opined that employee's work activities for employer contributed to gradual deterioration of employee's low back. Dr. David Ebelke acknowledged, "[P]icking up objects, lifting objects bending and twisting over a period of a few years could be a contributing factor in causing disc degeneration".

Employee had back injuries as early as 1987. That year, he entered into a workers' compensation settlement based on 3% of the body as a whole related to the back, but had no significant back complaints or compensable injuries until 2010, when he experienced radicular pain in his legs. Employee quit his job with Truman Medical Center on February 12, 2010, due to disabling back symptoms. He did not claim workers' compensation benefits in that year and rested his back for over a year, hoping for improvement.

We find that employee's work activities for employer was the prevailing factor in his February 3, 2015, onset low back occupational disease. Based on the expert opinion of Dr. Koprivica, we find that employee's primary injury resulted in 25% permanent partial disability of the body as a whole and that this injury did not result in permanent total disability in isolation.

Based on Dr. Koprivica's expert opinion, we find that employee had 10% permanent partial of the body as a whole for preexisting lumbar impairment. Based on Dr. Foster's expert opinion, referenced in Dr. Koprivica's August 2, 2016, report, we find employee had preexisting disability of 20% permanent partial disability of the body as a whole related to a compensable February 13, 1998, left shoulder injury in addition to preexisting disability of 25% permanent partial disability of the body as a whole related to a September 2, 1997, compensable right shoulder injury. Evidence of an employee's agreement to compromise settlements based on lesser percentages of disability is not binding on the administrative law judge or the Commission and does not preclude assignment of a higher percentage of disability based in other evidence in the record.


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Based on the medical documentation and the opinions in evidence, we find that employee's preexisting medically documented compensable disabilities combined with disability attributable to his primary, low back disability to result in permanent total disability as defined by law.

Conclusions of Law Second lniurv Fund liabilitv Employee seeks an award of permanent total disability benefits from the Second Injury Fund. Because employee's primary injury occurred after January 1, 2014, we must apply the new criteria set forth under§ 287.220.3(2) RSMo for establishing a compensable claim against the Second Injury Fund. See Cosby v. Treasurer, 579 S.W.3d 202 (Mo. bane 2019).

In relevant part, the statute provides as follows:

Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020 [emphasis added]; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent workrelated injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.]


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§ 287.220.3(2) RSMo.

Pursuant to§ 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our courts have instructed:

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

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

The administrative law judge correctly cited 287.220.3(2) as the law applicable to employee's claim. The administrative law judge interpreted§ 287.220.3 as requiring the Division "to determine if the compensable work related injury combines with the preexisting disabilities recognized in 2013 changes to render the claimant permanently and totally disabled [emphasis added]". Award, p. 15. He concluded, "Based on the medical documentation, the opinions in evidence, Mr. White has meet [sic] the elements of§ 287.220.3(2)(a)a. RSMo 2013 and proven that his preexisting medically documented compensable disabilities in combination with his aggravating non-work related low back disability results in permanent total disability as defined by law." Award, p. 16. Based in these findings, the administrative law judge awarded PTO against the second injury fund.

As we have found, employee sustained a compensable occupational disease related to his low back with onset of February 3, 2015. We do not disturb the administrative law judge's factual findings regarding the nature and extent of disability attributable to employee's primary injury, the nature and extent of employee's preexisting disabilities and medical causation of employee's permanent total disability.

We find that employee's Second Injury Fund claim fails because, pursuant to § 287.220.3 the employee failed to demonstrate that his alleged permanent total disability resulted from a combination of disability attributable to employee's primary injury and a single preexisting disability that satisfies the enumerated criteria under § 287.220.3(a)a.

Based on the only evidence in the record employee's permanent and total disability is due to the combination of his primary injury and various claimed preexisting disabling conditions, including at least one ( 10% of the body as a whole attributable prior lumbar impairment) that clearly does not equal a minimum of fifty weeks of compensation according to medical standards used in determining such compensation.


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It appears to us that employee invites us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply§ 287.220.3(2)(a)b as if it read as follows:

Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, and all other disability existing at the time the last injury was sustained, results in a permanent total disability as defined under this chapter[.]

(additions in bold).

Pursuant to the strict construction mandate, we cannot read the foregoing additional words into the language of§ 287.220.3(2)(a)b. Employee's interpretation further requires us to ignore the plain language of the existing section, which clearly instructs us, by using singular rather than plural language, to consider "the preexisting disability."

We acknowledge that a majority of the Missouri Court of Appeals, Western District, recently filed an opinion, not yet final, that is at odds with our interpretation of § 287.220.3(2)(a)b. See Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan ParkerWD83030 (July 14, 2020) 2. One member of the threejudge division that decided the case challenged the majority's interpretation in a strongly written dissenting opinion. For the reasons stated above, we fundamentally disagree with the Western District majority's recent interpretation of§ 287.220.3(2)(a)b.

We instead find that the express language of§ 287.220.3(2)(a)b requires that an employee prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test.

There is no evidence on this record that would suggest (let alone persuasively demonstrate) that employee is unable to compete for work in the open labor market owing to the effects of his occupational disease injury with onset of February 3, 2015, in combination with a single preexisting disability that meets the fifty-week requirement set out in§ 287.220.3(2). Rather, as we have found, employee's permanent and total disability is due to a combination of the effects of the primary injury and various preexisting disabilities, including at least one that does not meet the fifty-week threshold.

Accordingly, based on the above analysis, we conclude that employee has failed to satisfy the requirements of§ 287.220.3 RSMo. We therefore deny employee's claim against the Second Injury Fund.

2 A Motion for Rehearing or Transfer to the Supreme Court, filed July 29, 2020, by the Treasurer of the State of Missouri-Custodian of the Second Injury Fund, is currently pending.


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Decision We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because his evidence fails to satisfy the standard set forth under§ 287.220.3 RSMo.

The award and decision of Administrative Law Judge Lawrence G. Rebman, issued October 21, 2019, is attached solely for reference.

Given at Jefferson City, State of Missouri, this 10th day of August 2020.

Attest

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, ctfairman

SEPARATE OPINION FILED CONCURRING IN PART AND DISSENTING IN PART Reid K. Forrester, Member

DISSENTING OPINION FILED Shalonn K. Curls, Member

~~~ Secretary


SEPARATE OPINION CONCURRING IN PART AND DISSENTING IN PART

I concur in result of Chairman Cornejo's decision denying employee's claim against the Second Injury Fund for permanent total disability benefits. I agree with Chairman Cornejo's interpretation of§ 287.220.3 RSMo and its determination that employee failed to establish permanent total disability based on a single qualifying preexisting disability in combination with disability from his primary injury for purposes of a Second Injury Fund claim.

I disagree, however, with Chairman Cornejo's finding that employee's February 3, 2015, claim constituted a compensable occupational disease. In my opinion, the evidence does not support a finding that employee's alleged occupational disease claim was the prevailing factor in employee's low back disability. I would deny employee's Second Injury Fund claim based on failure to establish, as a threshold issue, that employee sustained a compensable primary work related injury.

Employee had injuries to his back as far back as 1987 according to his workers' compensation settlement 87-143105. His back pain was severe enough to warrant an MRI in 2010 with findings of degenerative disc disease and herniation at L4-L5, disc desiccation, disc space narrowing and herniation at L5-S1 and bilateral facet hypertrophy with mild canal narrowing and mild to moderate neural foraminal narrowing at the at the L5-S1 motion segment level. At that time, employee was having difficulty with his low back, had pain radiating down both lower extremities, and was prescribed lumber epidural steroid injections and therapy. Employee quit his job at Truman Medical Center on February 12, 2010, due to these disabling back symptoms. Employee did not work, used Vicodin, relied on a cane and rested his back for over a year hoping for improvement. At the beginning of employee's job with employer, he still needed to protect his back by avoiding bending and self-accommodating at work by using a long stick that had a razor blade attached to the end to clean floors. Employee already had the diagnosis of degenerative disc disease, lumbar radiculitis and thoracic somatic dysfunction at the time he started employment with employer and was receiving ongoing osteopathic manipulations, soft tissue relaxation techniques, Darvocet and Medrol Dosepaks.

Dr. David K. Ebelke, a practicing orthopedic spine surgeon for twenty-nine years, stated that the results of employee's 2015 MRI were essentially the same as the results of his prior 2010 MRI except for expected mild age-related degenerative changes. He further assessed employee's pain complaints as episodes of pain, which are not the same as an injury. Employee's 2015 MRI showed no evidence of a work incident, no evidence of significant progression of employee's prior condition, no evidence of injury to the back, no evidence of severe pathology in his back, no herniations, no stenosis and nothing one could point to as being caused by a single incident or series of incidents. Dr. Koprivica testified that the 2015 MRI showed worsening or continuation of the previous degenerative condition, a breakdown over time from the 2010 MRI. Employee also had a normal neurological exam. Dr. Ebelke opined that employee did not sustain a significant or permanent injury as a result of his years with employer.


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Both Dr. Koprivica's and Dr. Ebelke's opinions disqualified employee's February 3, 2015 claim from being compensable pursuant to§ 287.067.3 which states, "Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable." The evidence does not support that the prevailing factor for employee's February 3, 2015, claim is work related. Rather, employee's back condition was a continuation of degeneration unrelated to work activity with the employee. In my opinion, employee's Second Injury Fund claim fails because employee failed to prove, as a threshold issue that his alleged February 3, 2015, occupational disease was a compensable work injury.

Therefore, while I concur in the result, I dissent from Chairman Cornejo's opinion to the extent it finds that employee's 2015 occupational disease claim constituted a compensable injury.

@~~~ Reid K. Forrester, Member


DISSENTING OPINION

I have reviewed the evidence, read the briefs of the parties, heard the parties' arguments, and considered the whole record. I have reviewed and considered all of the competent and substantial evidence on the whole record.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

The administrative law judge's interpretation of§ 287.220.3 is consistent with the recent Missouri Court of Appeals, Western District opinion in Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan ParkerWD83030 (July 14, 2020). I agree with the appellate court majority's reasoning in this important decision.

I adopt the award of the administrative law judge, as supplemented herein, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Michael White Injury No. 15-059529

FINAL AWARD AS TO THE SECOND INJURY FUND ONLY

Employee: Michael White Injury No. 15-059529

Employer: HCA Health Midwest Research Medical Center (Settled)

Insurer: Ace American Insurance Company/Broadspire Services, Inc. (Settled)

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

Hearing Date:

Briefs Filed:

July 11, 2019

July 30, 2019 Checked by: LGR/pd

FINDINGS OF FACT AND RULINGS OF LAW

I. 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: February 3, 2015

5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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's job required the repetitive lifting, pushing and pulling of heavy items.

12. Did accident or occupational disease canse death? No Date of death? NIA

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

Revised Form 31 (2/97) Page 1


14. Nature and extent of any permanent disability: 12.5% body as a whole

15. Compensation paid to date for temporary disability: None

16. Value necessary medical aid paid to date by employer/insurer? None

17. Value necessary medical aid not furnished by employer/insurer? None

18. Employee's average weekly wages: Sufficient for the following benefits.

19. Weekly compensation rate: $345.30 for TTD and PTD; and $345.30 for PPD

20. Method wages computation: By stipulation of the parties

COMPENSATION PAYABLE

21. Amount of compensation payable: Beginning May 26, 2015, the Second Injury Fund is liable for PTD benefits at the rate of $345.30 for the life of the Claimant or until he is no longer permanently and totally disabled. The Second Injury Fund is allowed a credit of 50 weeks for the PPD paid by the Employer totaling $17,265.00.

22. Future requirements awarded: None.

Said payments to begin upon receipt of this Award 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 percent of all payments hereunder in favor of Steve Wickersham, Employee's attorney, for necessary legal services rendered.



FINDINGS OF FACT and RULINGS OF LAW

Employee: Michael White Injury No. 15-059529

Employer: HCA Health Midwest Research Medical Center (Settled)

Insurer: Ace American Insurance Company/Broadspire Services, Inc. (Settled)

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

Hearing Date: July 11, 2019

Briefs Filed:. July 30, 2019 Checked by: LGR/pd

On July 11, 2019, tbe parties appeared for a final hearing in Kansas City, Missouri before Administrative Law Judge Lawrence G. Rebman. The Employee, Michael White, appeared in person and with counsel, Steve Wickersham The Employer/Insurer did not appear as they have settled in this matter. The Second Injury Fund appeared by Assistant Attorney General Candace Cole.

STIPULATIONS

The patties stipulated that:

I. On February 3, 2015, HCA Health Midwest Research Medical Center (hereafter "Employer") was operating under ai1d subject to the Missouri Workers' Compensation law;

2. On February 3, 2015, Michael White (hereafter "Employee") was an employee of Employer and he was working under the provisions and subject to the Missouri Workers' Compensation law;

3. At all tin1es relevai1t to this claim, the Employer was self-insured; 4. Employee sustained ai1 accident in the course of his employment in Kai1sas City,

Jackson County, Missouri; 5. The average weekly wage was sufficient for weekly rates of compensation are

$345.30 for TTD and PTD; and $345.30 for PPD; 6. The Employer/Insurer settled the case for 12.5% to the body as a whole for

$17,265.00; 7. Employer has furnished no medical care; 8. Employer has not furnished TTD; ai1d 9. Employee attained maximum medical improvement status on May 26, 2015.


Issued by DIVISION OF WORKERS' COMPENSATION Employee: Michael White

ISSUES

The parties requested the Division to determine:

Injury No. 15-059529

1. Whether the Employee suffered a work accident on February 3, 2015 which resulted in disability;

2. Whether the Employee's preexisting disability was a hindrance or obstacle to maintaining employment or finding re-employment; and

3. Whether the SIF is liable to Employee for any disability compensation.

FINDINGS OF FACT AND RULINGS OF LAW

The Employee testified on his own behalf. He and the Second Injury Fund offered the following joint exhibits, all of which were admitted into evidence without objection:

Joint Exhibit No. 1 - Settlement Stipulation in Injury# 15-059529 Joint Exhibit No. 2 - Settlement Stipulation in Injury# 07-005671 Joint Exhibit No. 3 -Settlement Stipulation in Injury# 98-016797 Joint Exhibit No. 4 - Settlement Stipulation in Injury# 97-436533 Joint Exhibit No. 5 -Settlement Stipulation documentation in Injury# 94-035853 Joint Exhibit No. 6 - Settlement Stipulation documentation in Injury # 87-143105 Joint Exhibit No. 7 - Dr. P. Brent Koprivica 's 5/4/18 Deposition with exhibits Joint Exhibit No. 8 - Dr. P. Brent Koprivica 's 8/2/16 Report Joint Exhibit No. 9- Dr. P. Brent Koprivica 's 4/28/17 Addendum Report Joint Exhibit No. JO-Michael Dreiling's 9/20/17.Deposition with CV and 12/13/16

Report

The Second Injury Fund offered the following exhibits, all of which were admitted into evidence without objection:

Second Injury Fund Exhibit I - Dr. Elbelke's 3/16/18 Deposition with CV, 11/13/17 Report, disk and handwritten forms

Second lnjwy Fund Exhibit II- Terry Cordray's 4/13/18 Depositio9n with CV, 12/5/17 Report and 1/3/18 Report

Second Injury Fund Exhibit Ill - Claimant's 9/6/17 Deposition

FINDINGS OF FACT

Mr. White testified on his behalf and his testimony was credible. Mr. White graduated from high school in 1979. He did complete nine credit hours through Missouri Valley College and a one-year program in sales and marketing. Mr. White worked for HCA Health Midwest Research Medical Center, hereinafter referred to as "Employer," from May 23,201 l to February 3, 2015 as a floor technician and in laundry and patient transp01i. (SIF II attachment #2, Joint 8 p. 13)

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Mr. White's job duties for Employer included floor stripping, using a stick with a razor blade on it to remove wax at baseboards, operating buffing machines, a micro mop, and wet vacuums, moving furniture, beds, loaded desks, file cabinets, pulling trash and handling soiled linens, all alleged to have caused progressive injury and pain to his back up to his last day of work in September, 2014. (Joint 8 p. 13- 14)

February 3, 2015 alleged occupational disease

After a few days working for Employer in May, 2011, Mr. White complained of increasing and progressive symptoms in his low back which affected his ability to sit and stand. (Joint 8 p. 18- 19) He was prescribed oral Prednisone. (Joint 8 p. 19) Mr. White continued to seek treatment from Dr. Klema while he was working full time for Employer. (Joint 8 p. 19-20) In August, 2011, Mr. White complained of restricted range of motion and in November, 2011, Mr. White complained of left foot pain. (Joint 8 p. 20)

Mr. White was unable to work for a few days in October, 2012 due to an episode oflow back pain. (Joint 8 p. 22) During an annual wellness exam on March 24, 2014, Mr. White complained of ongoing low back pain; and in September, 2012, Mr. White was found to be unable to do heavy custodial work by Dr. Klema (Joint 8 p. 22). Mr. White has not worked since September, 2014 due to an acute flare-up of his low back pain and he resigned from Employer February 3, 2015 (Joint 8 p. 14-15, 23)

From September 2012 to February 3, 2015, Mr. White continued to receive short, then long-term disability and sought care from Dr. Klema. (Joint 8 p. 23) Mr. White received osteopathic manipulation, muscle relaxation and Norco. (Joint 8 p. 23) Mr. White rep01ied having difficulty walking and sitting. (Joint 8 p. 23) He complained of bilateral lower extremity radicular symptoms, especially on the left. (Joint 8 p. 23) Due to worsening back symptoms, an MRI scan was done on January 15, 2015, which revealed a broad-based 15-Sl bulge focal to the left that was displacing the left S 1 nerve root, disk herniation at 14-15 with associated spinal stenosis and mild bulging at 13-14. (Joint 8 p. 24) Mr. White was prescribed Hydrocodone. (Joint 8 p. 24) Due to his loss of employment at this time, Mr. White was not able to afford further treatment and on-going care that he desired. (Joint 8 p. 24-25)

After Mr. White gave Employer paperwork from Dr. Klema, he did not return to work. (SIF II p. 17, SIF III p. 77-78) Employer placed Mr. White on long-term disability and he eventually resigned on February 3, 2015. (SIF II p. 17, SIF II attachment #3) Mr. White was awarded Social Security Disability. (SIF II p. 17)

Preexisting Disability

Mr. White's prior work related injuries consisted of;

, A January 23, 2007 injury while working at Truman Medical Center that settled for 15% pe1manent paiiial disability at the right shoulder in the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, Injury No. 07-005671. (Joint 2)

WC-32-Rl (6-81) l'nge 5


A February 13, 1998 injury while working at Truman Medical Center that settled for 8.5% permanent partial disability at the left shoulder in the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, Injury No. 98-016797. (Joint 3) Dr. Foster rated Mr. White's neck and upper back, left shoulder and left upper extremity for the February 13, 1998 the assigned a 20% permanent partial disability of the body as a whole.

A September 2, 1997 injury while working at Truman Medical Center that settled for 8.5% permanent partial disability at the right shoulder in the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, Injury No. 97-436533. (Joint 4) Dr. Foster and was assigned a 25% permanent partial disability of the body as a whole for the September 2, 1997 injury.

A March 26, 1994 injury to the upper back, neck and shoulder while working at Rentco USA that settled for 3% permanent partial disability of the neck, upper back and body as a whole in the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, Injury No. 94-035853. (Joint 5)

A November 17, 1987 injury to the head, back and other injuries while working at House of Lloyd that settled for 4% permanent partial disability to the body as a whole in the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, Injury No. 87-143105. (Joint 6)

Due to back pain, a February 9, 2010 MRI scan was performed and revealed degenerative disk disease and herniation at L4-L5, disc desiccation, disc space narrowing and herniation at L5-S I and bilateral facet hypertrophy with mild canal narrowing and mild right and mild to moderate neural foraminal narrowing at the L5-S I motion segment level. (Joint 8 p. 15-16) Mr. White was having difficulty with his low back and had pain radiating down both lower extremities. (Joint 8 p. 16) Dr. Gianino recommended lumbar epidural steroid injections and therapy after this MRI scan. (Joint 8 p. 16) Due to these disabling symptoms, Mr. White quit his job at Truman Medical Center on February 12, 2010. (Joint 8 p. 16) Mr. White did not work and rested his back hoping for improvement of his symptoms up until starting his job with employer on May 23,201 I. (Joint 8 p. 16) Mr. White's back symptoms at this time caused him to use a cane and take Vicodin. (Joint 8 p. 16-17) In order to avoid bending, Mr. White used a stick with a blade on it to strip wax from baseboards at work for Employer. (Joint 8 p. 14) Mr. White's diagnosis at this time by Dr. Klema was degenerative disk disease, lumbar radiculitis and thoracic somatic dysfunction. (Joint 8 p. 17) Mr. White received osteopathic manipulations, soft tissue relaxation techniques, Darvocet, a Medrol Dosepak and rest. (Joint 8 p. 17) Mr. White continued to have back symptoms up to the day he started working for employer. (Joint 8 p. 17-18)

Claimant's evaluating physician, Dr. Koprivica, testified that he adopted these ratings as his own opinion. (Joint 7 p. 65) Dr. Koprivica stated in his August 2, 2016 report that lvlr. White was able to perform his work successfully regarding the right shoulder. (Joint 8 p. 13)

During Dr. Koprivica's evaluation of Mr. White on August 2, 2016, Mr. White complained of ongoing radicular symptoms into his lower extremities, particularly on the left. (Joint 8 p. 25) The pain and nnmbness on the left go into his calf and sole of his left foot. (Joint 8 p. 25) Mr. White's sitting tolerance is unpredictable but feels his maximum is 30 to 45

l'ngr 6


minutes. (Joint 8 p. 25) His standing tolerance is 10 minutes, (Joint 8 p. 25) His walking tolerance is less than 15 minutes and he uses shopping carts. (Joint 8 p. 26) Throughout the day, Mr. White will lie down on his loveseat for a couple of hours to nap and watch TV, propping up his feet at one end and head and upper back on the other end. (Joint 8 p. 26) After each light activity, Mr. White must recline or lie down. (Joint 8 p. 26) Most of the time, he must lie down all afternoon. (Joint 8 p. 27) Mr. White's sleep is interrupted throughout the night, only sleeping for 2 hours at a time. (Joint 8 p. 27) He self-accommodates by lifting and carrying less than 7 pounds. (Joint 8 p. 27) Mr. White takes over-the-counter pain medication twice per day. (Joint 8 p. 29)

Medical opinions:

Mr. White's evaluator, Dr. Koprivica, opined that Mr. White had prior work-related and non-work-related injuries to the lumbar spine that contributed to the symptomatic degenerative disc disease in the lumbar spine that pre-dated his job with Research Medical Center. (Joint 8 p. 34) Dr. Koprivica rated Mr. White's prior lumbar impairment at IO% permanent partial disability to the body as a whole was related to his prior exposure at Research Medical Center. (Joint 8 p. 35) Dr. Koprivica goes on to state that the prior lumbar disability does aggravate and accelerate the overall disability in the lumbar region that flows from the further cumulative injury associated with Mr. White's employment activities with the employer. (Joint 8 p. 35-36) Dr. Koprivica rated the occupational disease of February 3, 2015, at 25% permanent partial disability to the body as a whole with restrictions of no attempts at lifting from floor level, avoiding frequent or constant bending at the waist, pushing, pulling or twisting, avoiding sustained or awkward postures of the lumbar spine. (Joint 8 p. 41-43) Dr. Koprivica agreed with Mr. White's need to limit sitting to less than one hour as consistent with the objective impairment. (Joint 8 p. 42) Dr. Koprivica would limit standing and walking to less than 30 minutes and Mr. White will need ad lib flexibility in changing between sitting, standing, walking on an unpredictable basis. (Joint 8 p. 42) He noted that Mr. White is reclining throughout the day due to pain. (Joint 8 p. 42, Joint 7 p. 60)

Dr. Koprivica testified that he adopted prior ratings as his own opinion. (Joint 7 p. 65) Dr. Koprivica stated in his August 2, 2016 report that Mr. White was able to perform his work successfully regarding the right shoulder. (Joint 8 p. 13) Dr. Koprivica added the prior settlement amounts regarding the right shoulder to achieve a rating of 23 .5% permanent partial disability cifthe right shoulder or 54.52 weeks of disability. (Joint 8 p. 41)

Dr. Koprivica opined that based on Mr. White's presentation that incorporates a possible psychological dysfunction with objective physical impairments, Mr. White is permanently and totally disabled and does not believe that any ordinary employer could be expected to employ l'v1r. White with the level oflimitation and restriction which he presents at the time the rep01i was written on August 2, 2016. (Joint 8 p. 42-43) Dr. Koprivica suggested that a fonnal vocational evaluation be performed and if a vocational expert finds that Mr. White is permanently and totally disabled then it arises when one considers his lumbar impainnent and resultant disability, in and of itself, even though there was prior industrial disability involving the right shoulder. (Joint 8 p. 43) Dr. Koprivica then "clinically" defers this issue to input from the vocational expert but asserts that from the aspect of an occupational physician, he would view the total disability as arising from the synergy of combining the pre-existent industrial disabilities

wc.32.R1 (6·Sl) ruge 7


involving both shoulders and particularly the pre-existent lumbar spine disability with the claimed lumbar spine disability of February 3, 2015. (Joint 8 p. 43)

Dr. David Ebelke, an orthopedic spine surgeon specializing in the thoracic and lumber spine who has performed back surgery every week for over 29 years, hired by the employer to perform an independent medical evaluation of Mr. White, stated in his report date November 13, 201 7 that Dr. Koprivica is not a back specialist, physiatrist, pain doctor or surgeon. (SIF I, attachment #2 p. 4, SIF I p. 31-32) Dr. Ebelke regarded Mr. White's back complaints as multiple episodes of pain, which are not the same as an injury. (SIF I, attachment #2 p. 4) The second MRI (2015) showed no significant changes and there was no work incident. (SIF I, attachment #2 p. 4) It is hard to see how a few years on a job one successfully performed led to any increased disability, especially given a supporting MRI that documented no work-related change. (SIF I, attachment #2 p. 4) There is no defined or accepted "repetitive use syndrome" with respect to the back, and even if there were, a few years in this job would not qualify, especially when Mr. White had many prior episodes of back pain and incidents. (SIF I, attachment #2 p. 4) There was no significant injury; the new MRI showed no actual evidence of s_ignificant progression of his condition, only mild, not unexpected age-related degenerative changes. (SIF I, attachment #2 p. 4) Mr. White's subjective complaints far exceed the objective findings; there are clear exaggerations on exam, which exceed what would be expected based on his MRI. (SIF I, attachment #2 p. 4) It is Dr. Ebelke's opinion that Mr. White sustained no significant or permanent disability as a result of his several years of employment with employer. (SIF I, attachment #2 p. 4) There is no objective evidence of injury to the back; Mr. White did not sustain a permanent injury in his job with employer. (SIF I, attachment #2 p. 4) Mr. White does not have severe pathology in his back; his subjective complaints far exceed the objective findings and if he is unable to do his job, it is I 00% due to pre-existing conditions. (SIF I, attachment #2 p. 4) Mr. White does not require any restrictions as a result of his employment with employer; he's employable. (SIF I, attachment #2 p. 4) Dr. Ebelke testified that Mr. White was using a cane as a prop; he does not have a problem for which you need a cane. (SIF Ip. 13-14) Dr. Ebelke assessed Mr. White as magnifying his symptoms, faking pain responses, restricting movements more than necessary and giving poor effort during testing. (SIF Ip. 15-21) Mr. White had a normal neurologic exam. (SIF I p. 20) The 2010 normal MRI showed mild degenerative disc disease without herniation or pinched nerves, there were no objective findings that would explain the subjective complaints ofleg and hip symptoms. (SIF Ip. 21-23) The 2015 MRI still showed no herniations, no stenosis, no work related injuries and was nearly identical to the 2010 MRJ. (SIF Ip. 23-24) The 2015 MRI scan shows nothing that you could point to as being caused by any single incident or series of incidents. (SIF I p. 25-26)

Vocational opinions:

Michael Dreiling, Mr. White's vocational consultant, opined in his report dated December 13, 2016 that based on Mr. White's vocational profile, which included "pre-existing disabilities, especially to the right shoulder and low back, has more significant medical difficulties since a February 3, 2105 date of accident, has medical restrictions indicating the need to alternate sitting standing and walking, along with the ability to lie down, this person cannot return to any of the past relevant work which he has perfonned in the labor market since graduating from high school 3 7 years ago, is essentially and realistically unemployable in the open labor market; he would not have the vocational capacity to perfonn work at a substantial, gainful employment level; no employer in the usual course of business seeking person to perform

WC•32-JU (6-81)


duties of employment in the usual and customary way would reasonably be expected to employ this person in his present condition; he would not be able to successfully pursue and obtain gainful employment and he would not be an appropriate referral to the State Vocational Rehabilitation Agency for any job-placement services or retraining services. (Joint I 0, attachment #2 p. 13-14) Mr. Dreiling testified that the restrictions Dr. Koprivica imposed for the right shoulder and low back would prevent Mr. White from being able to perform jobs he has done for the past 36 years (Joint 10 p. 9-10)

Terry Cordray, Employer's vocational consultant, opined in his report dated December 5, 2017 that Dr. Koprivica's restrictions regarding the prior right shoulder disability of avoiding repetitive or sustained activities above the shoulder girdle on the right and avoid repetitive pushing or pulling activities against resistance especially of heavy physically demand would preclude Mr. White from performing his regular job as a floor technician which is heavy in physical demand and his prior jobs of delivery driver picking up repossessed items. (SIF II, attachment# 2 p. 17-18) As for the restrictions Dr. Koprivica gave for the current back disability from February 3, 2015, Mr. Cordray states that when one considers these physical restrictions in isolation, Mr. White is precluded from all jobs, no job will allow for Mr. White to recline throughout the day. (Joint 10, attachment 2 p. 18) Mr. Cordray goes on to opine that Mr. White is totally vocationally disabled from all jobs in the labor market based on a combination of pre-existing physical limitations as well as current back problems. (Joint I 0, attachment #2 p. 18) In Mr. Cordray's subsequent report dated January 3, 2018 where he reviewed further medical records, he continues to hold the opinion that Mr. White is totally vocationally disabled based upon the prior and current disabilities per Dr. Koprivica's comments and restrictions; but if one gives consideration to Dr. Ebelke's opinion, then Mr. White is not vocationally disabled and could perform light and sedentary unskilled jobs. (Joint 10, attachment# 3 p. 4) Mr. Cordray testified to these conflicting opinions in his deposition taken April 3, 2018. (SIF II p. 1-36)

RULINGS OF LAW

Workers' compensation law was "intended to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment ... " James v. CPI Corp., 897 S.W.2d 92, 94 (Mo.App.E.D.1995) (citation omitted).

The Second Injury Fund was created to "encourage the employmei1t of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury." Hall v. Missouri State Treasurer, 500 S.W.3d 282,286 (Mo. App. S.D. 2016) (internal quotation omitted). The Fund "is responsible for the portion of disability attributable to the preexisting condition." Wickam v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund. 499 S.W.3d 751, 756 (Mo. App. W.D. 2016). In 2013, the Missouri General Assembly modified the Second Injury Fund statute, Section 287.220. These changes went into effect on January I, 2014. The Second Injury Fund is funded by a surcharge on every worker's compensation policyholder insured pursuant to Chapter 287. R.S.Mo. §287.715 2013

Under the Workers' Compensation Act, the main test for permanent total disability claims are whether the claimant is able to compete in the open labor market. Underwood v. High Road Industries, LLC, 369 S.W.3d 59, 66 (Mo. Ct. App. 2012); Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. Ct. App. 2007). As such, "total disability" is defined as "the inability

Pnge 9


to return to any reasonable or normal employment." Underwood, 369 S.W.3d at 66 (citing Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 800 (Mo. Ct. App. 2011)); Mo. Rev. Stat. 287.020(7). Thus, the critical question, given the Claimant's present physical condition, is whether any employer could reasonably be expected to hire him and whether he could reasonably be expected to successfully perform the work. Underwood, 369 S.W.3d at 66 (internal quotations omitted); Highley v. Von Weise Gear, 247 S.W.3d 52, 55 (Mo. Ct. App. 2008); Michael, 334 S.W.3d at 663; Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 275 (Mo. Ct. App. 1996). The Claimant need not be completely inactive or inert to meet this statutory definition. He must, however, be unable to compete in the open labor market. See Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522 (Mo. Ct. App. 1999); Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo. Ct. App. 1997); Fletcher v. Second Injury Fund, 922 S.W.2d 402 (Mo. Ct. App. 1996); Searcy v. McDonnell Douglas Aircraft, 894 S.W.2d 173 (Mo. Ct. App. 1995); Reinver v. Treasurer, 837 S.W.2d 363 (Mo. Ct. App. 1992); Brown v. Treasurer, 795 S.W.2d 478 (Mo. Ct. App: 1990).

The courts of this state have held that, in making permanent total disability determinations, a number of factors may be considered, including a claimant's: physical and mental condition, age, education, job experience, and skills. See e.g., Tiller v. 166 Auto Auction, 941 S.W.2d 863 (Mo. Ct. App. 1997); Olds v. Treasurer, 864 S.W.2d 406 (Mo. Ct. App. 1993); Brown v. Treasurer, 795 S.W.2d 439 (Mo. Ct. App. 1990); Patchin. v. National Supermarkets Inc., 738 S.W.2d 166 (Mo. Ct. App. 1987); Laturno v. Carnahan, 640 S.W.2d 470 (Mo. Ct. App. 1982); Vogel v. Hall Implement Co., 551 S.W.2d 922 (Mo. Ct. App. 1977).

SECOND INJURY FUND LIABILITY

All compensable claims against the Second Injury Fund pursuant to 287.220.3.(2) require:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of a permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

1. A direct result of active military duty in any branch of the United States armed forces; or

11. A direct result of a compensable injury as defined in section 287.020; or 111. Not a compensable injury, but such preexisting disability directly and

significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work injury; or

1v. A preexisting pemianent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability as set for in items i,

Page JU


ii, iii, iv of subparagraph a of this paragraph, results in a permanent total disability as defined under this chapter R.S.Mo. §287.220.3 2013

The definition of an injury including an occupational disease, is one that has arisen out of and in the course of the employment. R.S.Mo. §§ 287.020.3(5), 287.202.3, 287.067. The occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. R.S.Mo. § 287.067. The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability R.S.Mo. § 287.067. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable. R.S.Mo. § 287.067.3.

R.S.Mo. §287.190(2) States:

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 ce1iainty. 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.

Mr. White had injuries to his back as far back as 1987 according to his workers' compensation settlement 87-143105. (Joint 6) The 1987 back injury indicated that Mr. White had constant pain in his low back but he did not have pain radiating into his lower extremities.

There is no other evidence of any significant back complaints or compensable injuries until 2010. In 2010, due to radicular pain in his legs, Mr. White sought treatment for his low back. His back pain was severe enough to warrant an MRI in 20 IO with findings of degenerative disk disease and herniation at L4-L5, disc desiccation, disc space narrowing and herniation at L5-S I and bilateral facet hypertrophy with mild canal narrowing and mild right and mild to moderate neural forarninal narrowing at the L5-S 1 motion segment level. (Joint 8 p. 15-16) At that time, Mr. White was having difficulty with his low back and had pain radiating down both lower extremities and was prescribed lumbar epidural steroid injections and therapy. (Joint 8 p. 16) Mr. White quit his job at Trnman Medical Center on February 12, 2010, due to these disabling back symptoms. (Joint 8 p. 16) Mr. White did not work, used Vicodin, used a cane and rested his back for over a year hoping for improvement. (Joint 8 p. 16-17). There is no evidence that Mr. White sought workers compensation benefits in 2010. And from 2010 to 2014, Dr. Koprivica lists numerous medical treatment for back pain due to work at his home or an automobile accident.

From May 23, 2011 to February 3, 2015, Mr. White works as a floor technician and in laundry and patient transp01i. In May 201 l, Mr. White's testified, he still needed to protect his existing back condition by avoiding bending with the use of a long stick that had a razor blade attached to the end. (Joint 8 p. 14) Mr. White had the diagnosis of degenerative disk disease, lumbar radiculitis and thoracic somatic dysfunction at the time he started with employer and was receiving osteopathic manipulations, soft tissue relaxation techniques, Darvocet, and a Medrol

WC•32-RI (6-8))

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Michael White lnj ury No. I 5-059529

Dosepak (Joint 8 p. 17) Mr. White continued to have back symptoms up to the day he started working for employer. (Joint 8 p. 17-18) Mr. White continued to work for Research Medical Center doing the same jobs that caused him back pain and injury and his records and testimony reflect continued and increasing pain and symptoms.

Dr. Ebelke, claims that the results of the 2015 MRl were essentially the same as the results of the prior 20 IO MRl except for expected mild age related degenerative changes. However, on page 3 of his report Dr. Ebelke states:

On my review of the 2nd MRl (1/15/150 still shows loss of disc signal intensity limited to the bottom 2 levels. It's a little more apparent at L4 - 5. Highintensity zones (sometimes called annular tears) are visible at L45 and S L5 SI; these are age indeterminate, but is still small. The nerve root foramina are open. Axle images are normal at LI - 2, L2 - 3, and L3 - 4. L4 - 5 is now slightly more convex centrally perhaps more so on the right. This looks fairly focal, and may slightly encroach on each lateral recess, but is but is a long-term change. L5-S 1 looks essentially the same; the disc bulge is slightly more prominent on the left but it's no bigger than before. It almost looks as if the prior him not mild bulge on the right has regressed a little in the left side remains unchanged. This height remained about the same; overall dish scan shows no significant anatomical change compared to the prior chain scan. It basically refutes any significant "injury" to the low back. These findings are the expected continuation of previous documented out abnormalities.

(SIF I, attachment#2 p. 3)

The Second Injury Fund argues that it has no liability because the injury alleged in the February 3, 2015 claim is not a work-related injury.

Mr. White has the burden to establish that the alleged February 3, 2015 occupational exposure was the prevailing factor, in relation to any other factor, in causing both the resulting medical condition and disability. R.S.Mo. § 287.067; Malam v. State, Department of Corrections. 492 S.W.3d 926, 929 (Mo. bane. 2016).

The evidence in this case demonstrates that Mr. White had compensable pre-existing back problems due to his history of heavy lifting and repeated bending and stooping and twisting while at work. The 1987 injury was settled for 3% body as a whole. In his deposition Dr. Koprivica illustrates how Mr. White's work activities over the last 5 years contributed to Mr. White's gradual deterioration of his low back. Dr. Koprivica opines that Mr. White's ongoing employment activities at research Med. Ctr. from his first date of employment on May 23, 2011 until his history oflast exposure onSeptember 8, 2014 are felt to represent the direct proximate and prevailing factor progressive cumulative injuries in the lumbar region and the development of disabling low back pain Dr. Koprivica notes that it Mr. White has displacement on the left S 1 nerve root with radiculitis on the left and objective evidence of atrophy of the left leg compared to the right. Dr. Ebelke on page 44 of his deposition also identifies that ... "picking up objects, lifting objects bending and twisting over a period of a few years could be a contributing factor in causing disc degeneration."

WC-32-Rl (6-Sl)


Based on the objective findings of degenerative changes between the MRI scans of 2010 and 2015 as well as Dr. Ebelke disputes with other doctors regarding the MRI results, it is determined that Dr. Koprivica's report and testimony are more persuasive on the issues before the division. Dr. Koprivicarates Mr. White's February 3, 2015 injury in isolation at 25% permanent partial disability to the body as a whole. Mr. White and the employer have settled the 2015 for 12.5% permanent partial disability in the amount of $17,265.00.

Accordingly Mr. White has carried his burden of proof in demonstrating that his work was prevailing factor in his 2015 compensable back injury which did not result in permanent total disability in isolation.

Medically Documented Disability of 50 weeks.

The Second Injury Fund argues that it has no liability because Mr. White's claim fails to meet the requirements of RS.Mo. §287.220.3(2); Cosby v. Treasurer, S.W.3d 2019 WL 2588575, (Mo. bane. 2019).

"Section 287.220.3 applies to all PTD or PPD claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014." Cosby v. Treasurer, --S.W.3d -- 2019 WL 2588575, (Mo. bane. 2019).

Under the new provisions of §287.220.3.2 RSMo. enacted in 2013, the Claimant must establish pursuant to section that he meets following conditions:

a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is: 1. A direct result of active military duty in any branch of the United States armed

forces; or ii. A direct result of a compensable injury as defined in section 287.020; or m. Not a compensable injury, but such preexisting disability directly and

significantly aggravates or accelerates the subsequent work-related injury an shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

1v. A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable workrelated injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in pemrnnent total disability as defined under this chapter; (§ 287.220.3.2, Emphasis Added)

The provisions of Chapter 287 shall be construed strictly and evidence shall be weighed impai1ially without giving the benefit of the doubt to any pai1y when weighing evidence and resolving factual conflict. RS.Mo. § 287.800. The Comis have explained that:

WC•JZ-RJ (6-8)) rnge 13


A strict construction of a statute presumes nothing that is not expressed. The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it does mean that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. Allcorn v. Tap Enters, Inc., 277 S. W.3d 823,828 (Mo. App. S. D. 2009)

The fundamental rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning. Abrams v. Ohio Pacific Exp., 819 S.W.2d 338, 340[1-3] (Mo. bane 1991 ). There is no room for construction where words are plain and admit to but one meaning. Id Further, where no ambiguity exists, there is no need to resort to the rules of construction. Id In determining whether the language is clear and unambiguous, the standard is whether the statute's tem1S are plain and clear to one of ordinary intelligence. Woljf Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31[3-5] (Mo. bane 1988). Moreover, the plain and unambiguous language of a statute cannot be made ambiguous by administrative interpretation and thereby given a meaning which is different from that expressed in a statute's clear and unambiguous language. Id. State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 306 (Mo.App.1996).

The Second Injury Fund argues that Mr. White's prior workers compensation settlements do not meet the threshold requirement of §287.220.3.2.(a)a. This is a misapplication of the plain text of the law. The new statute merely requires a medical documented preexisting disability of 50 weeks or more. Prior 'to January I, 2014, disability determinations regarding pre-existing disability was to be made by an administrative law judges or the commission in assessing second injury fund liability. This section has been removed from R.S.Mo. §287.220.3 2013 law.

§287.220.2 RSMo 2013 states:

I. All cases of permanent disability where there has been previous disability due to injuries occurring prior to January I, 2014, shall be compensated as provided in this subsection .... 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.

(RSMo. §287.220.2 2013, Emphasis Added)

wc.J2.RJ (6-s1) Page 14


Mr. White has offered five prior worker's compensation settlement stipulations documenting his prior compensable claims. In regard to the February 13, 1998 injury to the left shoulder, according to Dr. Koprivica Report, Dr. Foster rated Mr. White's neck and upper back, left shoulder and left upper extremity for the February 13, 1998 the assigned a 20%permanent partial disability of the body as a whole. (Joint 8 p. 8-9)

In regard to the September 2, 1997 injury to the right shoulder according to Dr. Koprivica's Report Dr. Pazell and was assigned a 25% permanent partial disability of the body as a whole or 100 weeks of disability. (Joint 8 p. 11)

The medical reports of Dr. Koprivica have been admitted without objection and appear to meet all applicable standards set forth in statute. Based upon the strict construction of the statues and giving intent to the clear changes in the statute, Mr. White has met his burden of proof in presenting medical documentation of preexisting work related disability equaling over 50 weeks. These medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation appear to meet the medical standards that are used in determining such compensation

Permanent Total Disability

RSMo. §287.220.3 2013 requires the Division to determine if the compensable work related injury combines with the pre-existing disabilities recognized in 2013 changes to render the claimant permanently and totally disabled.

Dr. Kopriva's opinion states that as an a occupational physician, he would view the total disability as arising from the synergism of combining the preexistent industrial disabilities involving both shoulders and particularly the preexistent industrial disability of the lumbar spine with the additional disability in the lumbar region attributable to the primary occupational disease claim dated February3, 2015. Dr. Koprivica had rated the prior work-related and nonwork-related lumbar disability at I 0% permanent partial disability to the body as a whole and acknowledged that more than just the back was included in the ratings of prior injuries in Joint exhibits 5 and 6. (Joint 8 p. 34-35) The evidence indicates that Mr. Whites low back problems where minimal before 20 I 0. The evidence indicates that Mr. White experienced a significant back problem in 2010 which was not compensable. Dr. Koprivica goes on to state that the prior lumbar disability (work and non-work related) does aggravate and accelerate the overall disability in the lumbar region that flows from the further cumulative injury associated with Mr. White's employment activities with the employer. (Joint 8 p. 35-36) Mr. White testified in his deposition that after the 1994 Rentco back injury, he would have a little problem with his back every now and then but he got back to 100%. The evidence in this case is that Mr. White's non compensable 2010 back problems were more significant that the 1987 injury to M.r. White's low back.

Dr. Koprivica, opined that if a vocational consultant concluded that Mr. White was realistically pennanently and totally disabled, the permanent and total disability arises when one considers his lumbar impaim1ent and resultant disability in isolation, in and of itself. (Joint 8 p. 43) Dr. Koprivica gave Mr. White restrictions for his February 3, 2015 claim ofno lifting from floor level, avoiding frequent or constant bending at the waist, pushing, pulling, twisting, avoiding sustained or awkward postures of the lumbar spine, limiting standing and walking to

Pngc 15


less than 30 minutes, ad lib flexibility in changing between sitting, standing, and walking on an unpredictable basis with these noted maximums and Dr. Koprivica notes that Mr. White reclines throughout the day. (Joint 8 p. 41-42) Dr. Koprivica stated in his August 2, 2016 report that Mr. White was able to perform his work successfully regarding the right shoulder. (Joint 8 p. 13) Dr. Koprivica testified that Mr. White's need to lie down for pain relief is believable, clinically. (Joint 7 p. 60) Prior to working for employer, Mr. White had been working full time, full duty with the ability to work overtime. (Joint 7 p. 64) Mr. White's vocational consultant, Michael Dreiling, testified that Mr. White had been working full time, full duty at fairly physical work until September, 2014. Joint 10 p. 29)

Mr. White testified in his deposition taken September 6, 2017 that his need to lie down for back pain relief throughout most of the day started after he left his job with employer. (SIF III p. 111-112) Vocational consultant, Terry Cordray, stated in his December 5, 2017 report that "No job will allow Mr. White to recline throughout the day." (SIF II attachment #2 p. 18) Mr. White's need to recline throughout the day for pain relief removes him from competing in the open labor market Fund. As discussed above, the test for determining permanent and total disability in the worker's compensation context is whether the worker is able to compete in the open labor market, which hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition. Archer v. City of Cameron, 460 S.W. 3rd 370,375 (Mo.App.W.D. 2015) Mr. Cordray has stated that there are no jobs for people who need to recline throughout the day. (SIF II attachment #2 p. 18)

Michael Dreiling opined that Mr. White was permanently and totally disabled based upon a combination of prior right shoulder and lumbar injuries in combination with the current injury claim of February 3, 2015. Terry Cordray opined that Mr. White is precluded from all jobs due to the need to lie down from the last accident, because no job will allow Mr. White to recline throughout the day. (Joint 10, attachment 2 p. 18) Mr. Cordray goes on to opine that Mr. White is totally vocationally disabled from all jobs in the labor market based on a combination of preexisting physical limitations as well as current back problems. (Joint 10, attachment #2 p. 18) In Mr. Cordray's subsequent report dated January 3, 2018, he continues to hold the opinion that Mr. White is totally vocationally disabled based upon the prior and current disabilities per Dr. Koprivica's comments and restrictions.

Based upon the medical documentation, the opinions in evidence, Mr. White has meet the elements of §287.220.3(2)(a)a. RSMo 2013 and proven that his preexisting medically documented compensable disabilities in combination with his aggravating non-work related low back disability results in permanent total disability as defined by the law.

Beginning May 26, 2015, the Second Injury Fund is liable for PTD benefits at the rate of $345.30 for the life of the Claimant or until he is no longer pennanently and totally disabled. The Second Injury Fund is allowed a credit of 50 weeks for the PPD paid by the employer totaling $17,265.00

Finally, I award to Employee's attorney, Steve Wickersham, a fee of 25% percent of all benefits awarded herein as representative of necessary legal services rendered to the Employee.

WC•32-RJ (6-S)J l'uge 16

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Michael White Injury No, 15-059529

Said payments to begin upon receipt of this Award and to be payable and be subject to modification as review as provided by law.

I certify th3t 011--1Q:;dl-1q , I delivered a copy of !he foregoing award to the parties lo !he case. A complete record of !he method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __ _,,,;,414-"f,W0L/ __ _

Made by: ---u~--'----'-~ /_ d' ____ _ -/Z-~ Administrative Law Judge

Division of Workers' Compensation

Documents

Issued by THE LABOR AND INDUSTRIAL RELATIONS ......HCA Health Midwest Research Medical Center (settled) Ace American Insurance Company (settled) Treasurer of Missouri as Custodian