Lynda Noel v. ABB Combustion Engineering

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 14, 2006. The award and decision of Chief Administrative Law Judge Jack H. Knowlan, Jr., issued July 14, 2006, is attached and incorporated by this reference.

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

Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this $\qquad 19th \qquad$ day of January 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 14, 2006. The award and decision of Chief Administrative Law Judge Jack H. Knowlan, Jr., issued July 14, 2006, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this $\qquad 19^{\text {th }} \qquad$ day of January 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Lynda Noel

Injury No. 97-447116, 98-171249 and 00-001674

Dependents: N/A

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Keith E. Link

On April 19, 2006, the employee, Lynda Noel, appeared in person and by her attorney, Mr. Keith E. Link, for a hearing for a final award. The employer was represented at the hearing by its attorney, Mr. John Kafoury. The Second Injury Fund was represented at the hearing by Assistant Attorney General Laura Wagoner.

At the time of the hearing, the parties requested that the employee’s claims for compensation under injury number 97-447116, 98-171249 and 00-001674 be combined for a consolidated evidentiary hearing. This request was based on the fact that the employee’s three claims were against the same employer, and the evidence to be introduced in each of these claims would be identical. The parties further agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues for each claim, together with the findings of fact and rulings of law, are set forth below as follows:

1. On or about November 4, 1997, December 2, 1998 and January 12, 2000, ABB Combustion Engineering was a covered employer operating under and subject to the provisions of the Missouri Workers’ Compensation Act. For the 1997, 1998 and 2000 claims, the employer’s liability for workers’ compensation was insured by National Union Fire Insurance Company, Insurance Company of the State of Pennsylvania, and Home Assurance Company, respectively.
2. On the dates of Lynda Noel’s three accidents or occupational disease claims, Lynda Noel was an employee of ABB Combustion Engineering, and was working under the provisions of the Missouri Workers’ Compensation Act.
3. On or about November 4, 1997, December 2, 1998 and January 12, 2000, the employee sustained accidents or occupational disease that arose out of and in the course of her employment.
4. The employer had notice of the employee’s accidents or occupational disease and her resulting injuries.
5. The employee’s claims for compensation were filed within the time allowed by law.
6. The employee’s average weekly wage for all three claims was in excess of $1,000.00 per week and qualifies the employee for the maximum rate of compensation for all three claims. The employee’s rate of compensation for the 1997 claim is 531.52 for TTD and PTD and 278.42 for PPD. The employee’s rate of compensation for the 1998 injury is 562.67 for TTD and PTD and 294.73 for PPD. The employee’s rate of compensation for the 2000 claim is 599.96 for TTD and PTD and 314.26 for PPD.
7. The employee’s injuries to her low back, right shoulder and her bilateral upper extremities in all three claims were medically causally related to her accidents or occupational disease.
8. The employer-insurer furnished medical aid in the amount of $336,296.08 for the 1997 low back injury. For the 1998 injury to the employee’s right shoulder, the employer-insurer paid medical expenses in the amount of $9,585.43. Under the 2000 claim for bilateral carpal tunnel syndrome, bilateral trigger thumb releases and left cubital tunnel syndrome, the

employer insurer paid medical expenses in the amount of $\ 11,340.61.

1. The employer-insurer paid temporary total disability benefits for the 1997 low back injury totaling $\ 125,210.90. For the 1998 right shoulder injury, the employer-insurer paid temporary total disability benefits totaling $\ 3,938.69. Under injury number 00-001674, the employer-insurer paid temporary total disability benefits in the amount of $\ 4,214.64.

1. Additional medical aid
2. Nature and extent of disability
3. Liability of the Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Emergency room records from Jefferson Memorial Hospital

B. Medical records from Occupational Medicine Specialty Center

C. Jefferson Memorial Hospital physical therapy records

D. Medical records of Dr. Peter Mirkin

E. Additional records from Jefferson Memorial Hospital

F. Records and reports from Dr. Howard Place

G. St. Louis University Hospital records

H. St. Anthony's Medical Center operative reports

I. Medical records of Dr. Draves

J. Medical records of Dr. David Robson

K. Report of Dr. David Anderson

L. Missouri Baptist Hospital operative records from 2001

M. Additional operative record from Missouri Baptist Hospital for August 17, 2001

N. Treatment records of Dr. Gutwein

O. Aquatic Fitness physical therapy records

P. Medical records from Occupational Medicine Specialty Center

Q. Medical records of Dr. Robert Markenson

R. Physical therapy records from Pro Rehab

S. Accident report dated January 12, 2000

T. Additional medical records from Occupational Medicine Specialty Center

U. Treatment records of Dr. Stephen Benz

V. Operative records from Jefferson Memorial Hospital

W. Medical records of Dr. Evan Crandall

X. Medical records for February 7, 1992 surgery at St. John's Mercy Medical Center

Y. Records of Dr. Gordon Robinson

Z. Records of Dr. Steven Granberg

AA. Records of Patricia Shaw, Ph.D.

BB. Order from Administrative Law Judge Leslie Brown dated June 21, 2004

CC. Medical mileage records of Lynda Noel

DD. Deposition of Patricia Shaw, Ph.D. with attached exhibits

EE. Deposition of Dr. Gordon Robinson with attached exhibits

FF. Deposition of Mr. James England with attached exhibits

GG. Deposition of Dr. David Volarich with attached exhibits

HH. Deposition of Dr. Steven Granberg with attached exhibits

Employer-Insurer's Exhibits

1. Deposition of Dr. John D. Graham
2. Medical report of Dr. David B. Robson

Second Injury Fund Exhibits

None offered.

In 1991 the employee had a right elbow injury that caused an ulnar nerve palsy. The employee had two surgical procedures on her right elbow. On July 16, 1991, Dr. Cornelius Britt performed a right subcutaneous ulnar nerve transposition. The employee subsequently had a second surgery by Dr. Evan Crandall on February 7, 1992. Dr. Crandall performed a submuscular transposition of the right ulnar nerve (Employee's exhibit V, W and X).

After the employee was released by Dr. Crandall, the employee continued to complain of soreness and numbness on the outside of her right arm. The employee indicated her right elbow injury affected her ability to work because her right arm would get tired and she was forced to use her left arm. Dr. Volarich rated the employee's pre-existing injury at 35 % of the right elbow (Employee's exhibit GG, page 52).

On November 4, 1997, the employee was employed by ABB Combustion Engineering as a utility operator for an oxidation furnace. The employee injured her back while lifting a container of uranium powder.

After conservative treatment failed to improve her symptoms, the employee was referred to Dr. Peter Mirkin, who is an orthopedic surgeon in St. Louis, Missouri. Dr. Mirkin diagnosed the employee as having a herniated disc at the L5-S1 level, and performed a microdiscectomy on April 7, 1998. The surgery did not improve the employee's symptoms, and Dr. Mirkin subsequently performed an anterior retroperitoneal discectomy and interbody fusion at the L5-S1 level on January 5, 1999 (Employee's exhibit H).

After her second surgery by Dr. Mirkin, the employee continued to experience severe low back and right lower extremity pain, and was referred to Dr. Steven Granberg for pain management. As result of her severe level of pain, the employee began experiencing significant symptoms of depression. The employee was referred to Patricia Shaw, Ph.d. for psychological counseling and therapy (Employee's exhibit H, HH, AA and DD). The employer-insurer subsequently transferred the employee's treatment for her depression to Dr. Gordon Robinson, who is a psychiatrist in St. Louis, Missouri.

Although the employer-insurer was no longer authorizing treatment by Patricia Shaw, the employee continued her counseling sessions with Dr. Shaw, and is seeking an award for expenses related to that treatment in the amount of $\ 6,376.94. The employee's treatment for depression has been effective in controlling her symptoms, but the employee is still receiving periodic treatment from both Dr. Robinson and Dr. Shaw.

After the two surgeries by Dr. Mirkin, the employee was released to return to work on November 16, 1999. Dr. Mirkin advised the employee to avoid repetitive bending, stooping and to alternate between standing and sitting (Employee's exhibit D). Based on this release, the employee returned to work at ABB Combustion Engineering, and continued working until July 16, 2000. Both the employee's testimony and the medical records support a finding that the employee continued to experience severe pain in her low back and right leg, and has not been able to return to work since July 16, 2000.

Based on her continued low back and right leg complaints, the employer-insurer authorized additional treatment with Dr. David Robson, who is an orthopedic surgeon that specializes in spinal surgery. Dr. Robson saw the employee on March 7, 2001, and concluded the employee needed additional revision surgery. At the time of his examination, Dr. Robson did not believe the employee had reached her maximum level of medical improvement (Employee's exhibit J, page 3).

On August 6, 2001, Dr. Robson performed a lumbar laminectomy with exploration of the L5-S1 nerve roots, and posterior spinal fusion with left iliac crest bone graft and Steffee instrumentation at L4-5 and L5-S1 (Employee's exhibit L). After the surgery by Dr. Robson, the employee developed an infection and was readmitted to the hospital for surgical debridement of the lumbar incision. (Employee's exhibit M). The employee was then referred to an infectious disease specialist. The employee received treatment for the wound infection from August 27, 2001 through June 26, 2002 (Employee's exhibit N).

At the time of the hearing, the employee testified that her third surgery by Dr. Robson had helped her symptoms "a little bit", but she added that her pain never goes away, and she "lives with it every minute of the day". The employee rated her pain at a level of 6 out of 10 , but noted that during the times that she has not had medication her pain becomes unbearable. The employee cannot sit for more than an hour and cannot stand for more than 20 to 30 minutes. She tries to walk as much as possible, but cannot walk very far without increasing the level of her back pain. The employee has used a cane since her last surgery because of problems with foot drop and tripping.

Dr. David Volarich examined the employee on December 6, 2005, and gave the employee a 75\% permanent partial disability rating of her body as a whole for her injury to her low back (Employee's exhibit GG, page 48). Dr. Volarich suggested the employee needed to avoid all lifting, pushing, pulling, carrying and other similar tasks on an as needed basis. He recommended the employee not lift over 10 pounds on an occasional basis. Dr. Volarich also indicated the employee should not lift any weight above her head, and needed to avoid sitting or standing for more than 20-30 minutes (Employee's exhibit GG, page 56-57 ).

Mr. James England testified that the employee was unable to compete in the open labor market. Although Mr. England

initially testified that the employee's permanent total disability was the result of a combination of all of her injuries, when questioned about the substantial factors that were causing her inability to work, he testified that her low back and psychiatric problems were "the main two features that I think limit her the most and would really knock her out of being able to sustain regular work activities" (Employee's exhibit FF, page 19-20).

On April 3, 2002, Dr. Robson rated the employee as having a 20\% disability of her body as a whole as a result of her back surgeries. In a more recent report dated January 16, 2006, Dr. Robson rated the employee at 30\% PPD (Employer-insurer's exhibit 2). On April 30, 2002, Dr. Granberg concluded that the employee was not capable of engaging in any employment, and he did not anticipate that she would have any significant improvement. On September 24, 2002, Dr. Gordon Robinson concluded the employee was not employable, and he did not foresee the situation changing. Dr. Robinson reiterated this conclusion on September 27, 2003, and testified the employee was permanently and totally disabled in his deposition (Employee's exhibit EE, page 47).

On December 2, 1999, the employee injured her right shoulder while pushing a loaded cart. The employee's second accident occurred during the time she was attempting to return to work after her first surgery by Dr. Mirkin.

The employer-insurer authorized treatment for the employee's right shoulder injury, and she was eventually referred to Dr. Robert Markenson, who is an orthopedic surgeon in St. Louis, Missouri. After conservative treatment failed to improve her symptoms, Dr. Markenson performed a distal clavicle resection on the employee's right shoulder on June 16, 1999. The surgery by Dr. Markenson eliminated the employee's right shoulder pain, but she continues to have problems with stability, strength and endurance.

Dr. David Volarich rated the employee's disability in her right shoulder at 35 %, and also assigned a 5 % disability for a mild, pre-existing right shoulder sprain/strain (Employee's exhibit GG, page 44 and 52). Dr. Volarich recommended the employee avoid all overhead use of her right arm with no lifting of objects weighing more than 5-10 pounds (Employee's exhibit GG, page 58-59).

Dr. Robert Markenson did not rate the employee, but suggested a 15-pound lifting restriction for the employee's right shoulder. Dr. Anderson gave the employee a 15 % rating of her right shoulder, but indicated that this should include all disability to her right and left shoulders (Employee's exhibit K).

After the employee returned to work following her second surgery by Dr. Mirkin, and after her shoulder surgery by Dr. Markenson, the employee was assigned to a job that required her to inspect small uranium pellets by picking them up with tweezers. The employee used both hands to perform this inspection, and by January 12, 2000 she began experiencing numbness in both hands.

The employer-insurer authorized treatment with Dr. Stephen Benz. Based on nerve conduction studies and his examination, Dr. Benz diagnosed bilateral carpal tunnel syndrome and bilateral trigger thumbs. Dr. Benz performed a right-sided carpal tunnel release and right trigger thumb release on April 18, 2000. He subsequently performed the same surgeries on the employee's left hand on May 2, 2000.

After the employee was released to work on restricted duty, she developed additional symptoms in her left elbow. Dr. Benz ordered another nerve conduction study, and diagnosed cubital tunnel syndrome in her left elbow. Although Dr. Benz recommended a left cubital tunnel release, the employee decided not to have the surgery and was subsequently released by Dr. Benz. Dr. Benz felt the employee's cubital tunnel syndrome was secondary to her repetitive motion activities at work (Employee's exhibit U).

The employee's current symptoms include loss of grip strength in both hands. She also had numbness in her hands if she tries to hold her hands up away from her body. The employee's thumbs improved after the surgery, but they still pop if she moves them in a circle, and both hands get sore if she uses them too much. The employee also experiences numbness in her left elbow if she lays her elbow down in a flat or extended position. If the employee reads newspapers, she experiences numbness from the outside of her forearm to her elbow. The employee is not receiving any further treatment for either her left or right arms.

In addition to her current symptoms, the employee has a one-inch scar on both wrists and a one-inch scar at the base of both thumbs.

Dr. Volarich rated the employee's trigger thumb injuries at 35 % of each thumb. For the bilateral carpal tunnel syndrome, Dr. Volarich assigned a 30 % permanent partial disability rating for the right wrist and a 40 % permanent partial disability rating for the left wrist. For her left ulnar neuropathy and cubital tunnel syndrome, Dr. Volarich rated the employee's left elbow at 30 % (Employee's exhibit GG, page 50-51).

- Under Section 287.410.1 "the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and medicines as may reasonably be required after the injury or disability to cure an relieve from the effects of the injury".

- Under Section 287.140 RSMo., the employer is given the right to select the authorized treating physician. Subsection 1 also provides that the employee has the right to select his own physician at his own expense. The employer, however, may waive its right to select the treating physician by failing or neglecting to provide necessary medical aid. Emert v Ford Motor Company, 863 S.W.2d 629 (Mo.App.1993); Shores v General Motors Corporation, 842 S.W.2d 929 (Mo.App.1992) and Hendricks v Motor Freight, 520 S.W.2d 702, 710 (Mo.App.1978).

- Under Section 287.140.1 RSMo., "if it be shown to the division or the commission that the requirements are being furnished in such manner that there is reasonable ground for believing the life, health, recovery of the employee is endangered thereby, the division or the commission may order a change in the physician, surgeon, hospital or other requirement".

- The standard of proof for entitlement to an allowance for future medical aid cannot be met simply by offering testimony that it is "possible" that the claimant may need future medical treatment. Modlin v Sunmark, Inc., 699 S.W.2d 5, 7 (Mo.App.1995). This case establishes, however, that it is not necessary for the claimant to present "conclusive evidence" of the need for future medical treatment. Sifferman v Sears Roebuck \& Company, 906 S.W.2d 823, 838 (Mo.App. 1995). To the contrary, numerous cases have made it clear that in order to meet their burden, claimants are required to show by a "reasonable probability" that they will need further medical treatment. Dean v St. Luke's Hospital, 936 S.W.2d 601 (Mo.App.1997). In addition, employees must establish through competent medical evidence that the medical care requested, flows from the accident" before the employer is responsible. Landers v Chrysler Corporation 963 S.W.2d 275 (Mo.App.1997).

- In Brookman v Henry Transportation 924 S.W.2d 286 (Mo.App.996), the Eastern District Court of Appeals noted that temporary total disability benefits are intended to cover the healing period, and are unwarranted beyond the point in which the employee is capable of returning to work. The court also noted that temporary total disability benefits are not intended to compensate the employee after his condition has reached the point where further progress is not expected. See also Williams v Pillsbury Company 694 S.W.2d 488, 489 (Mo.App.1985). In Brookman, the Court of Appeals noted that "the pivotal question in determining whether an employee is totally disabled is whether any employer, in the usual course of business would reasonably be expected to employ the claimant in his present physical condition. Brookman Id. at 290 .

- Section 287.020.7 RSMo. provides as follows:

The term "total disability" as used in this chapter shall mean the 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. Kowowski v M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App.1992). The test for permanent total disability is whether; given the employee's situation and condition, he or she is comprtent to compete in the open labor market. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 63, 367 (Mo.App.1992). Total disability means the "the inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483 (Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831, 834 (Mo.App.1993). Under Section 287.220.1 RSMo., the Second Injury Fund has no liability and the employer is responsible for full, permanent total disability benefits if the last injury "considered alone and of itself" results in permanent total disability. Roller v Treasurer of the State of Missouri, 935 S.W.2d 739 (Mo.App.1996) and Maas v Treasurer of the State of Missouri, 964 S.W.2d 541 (Mo.App.1998).

INJURY NUMBER 97-447116:

Issue 1. Additional Medical Aid

For the November 4, 1997 claim, the employee has requested an award for previously incurred medical expenses, medical mileage or travel expenses and future medical aid.

The employee has requested an award for previously incurred medical expenses in the amount of $\ 6,376.94. These are all bills related to psychotherapy provided by Patricia H. Shaw, Ph.d. from January 25, 2002 through July 14, 2005 (Deposition exhibit 3 attached to Employee's exhibit DD). The employee acknowledged during the hearing that these bills from Dr. Shaw were not authorized. The employee's care for depression had been transferred to Dr. Robinson, but the employee continued to have counseling session with Dr. Shaw after she was no longer authorized as a treating psychologist. The employee offered no evidence to support a finding that the employer-insurer has ever denied or refused medical treatment for the employee's depression, and there is no basis for finding that the employer waived its right to select and approve the treating physician.

Based on this evidence, I find that the $\ 6,376.94 in charges from Patricia Shaw were not authorized by the employer-insurer. I further find that the employer has not denied treatment and has not waived its right to select the treating physician under Section 287.140. Section 287.140.1 permits the employee to seek treatment at her own expense, and there is no basis for a finding that the employer-insurer is liable for the unauthorized treatment and resulting charges from Patricia Shaw. The employee's request for previously incurred medical expenses must therefore be denied.

The employee has also requested an award for medical travel expenses or mileage. Based on a fax received from the employee's attorney dated April 20, 2006, I find that the employee and the employer-insurer have agreed that the employee is entitled to mileage reimbursement in the amount of $\ 2,238.84. The employer-insurer is therefore directed to pay to the employee the sum of $\ 2,238.84 for medical travel expenses.

The employee has also requested an award for future and/or additional medical aid. The medical records and the testimony of all of the treating physicians and other healthcare providers unequivocally establish that the employee will require additional medical treatment to cure and relieve her from the effects of her November 4, 1997 injury to her low back. Based on this evidence, the employer-insurer is directed to furnish additional medical treatment to the employee pursuant to the provisions of Section 287.140 RSMo.

At the time of the hearing, the attorneys indicated that the employee was seeking an order prohibiting the employer-insurer from changing the authorized treating physicians. Although the employee is not currently no being seen by any orthopedic surgeons, the employee is still receiving prescription medications for low back pain and depression from Dr. Steven Granberg and Dr. Gordon Robinson. Her medication has included Oxy-Contin and Oxy-Codone, as well as other antidepressant and anti-inflammatory medications.

The employee testified that her level of pain becomes unbearable without the narcotic pain medication that she is currently taking. The employer-insurer has suggested, however, through the testimony of Dr. John D. Graham, that the employee needs to be gradually "weaned" from her use of narcotic pain medication (Employer-insurer's exhibit 1). In June of 2004, the employee anticipated that the employer-insurer was planning to make a change in her authorized treating physician from Dr. Granberg and Dr. Robinson to Dr. John D. Graham. To avoid this change, the employee filed a motion for an order to keep the employee's pain management and psychiatric treatment under the direction of Dr. Granberg and Dr. Robinson. On June 21, 2004, Administrative Law Judge Leslie Brown signed an interim order granting the employee's motion (Employee's exhibit BB.)

As previously noted, under Section 287.140.10, the employer has the right to select the treating physicians and healthcare providers. Section 287.140.2 further provides that the Division or the Commission may order a change in the healthcare providers if there is reasonable ground for believing that the "life, health or recovery of the employee" is being endangered by the employer-insurer's selection. There is no provision in chapter 287, however, that authorizes an administrative law judge to enter an order prohibiting a possible change in treating physicians. The employer clearly has the right to select the treating physicians, and absent a denial or refusal by the employer to provide treatment and a resulting waiver, the Division has no authority to control the selection of treating physicians. The only exception is the authority to order a change if the selection made by the employer endangers the life, health or recover of the employee.

In this case the employer is still authorizing treatment by Dr. Granberg and Dr. Robinson, and the employee is satisfied with that choice. Any decision to order a change would be based on speculation as to which doctors the employer might select, what treatment those doctors might recommend and how the employee would respond to those recommendations. Under the circumstances of this case, any decision to order a "change" in treating physicians is premature, and chapter 287 does not give an administrative law judge the authority to enter an order prohibiting the employer from exercising its right to select the treating physicians.

The court would note, however, that the employee seems to be responding very well to the physicians selected by the employer and any attempt by the employer-insurer to change physicians at this point would appear to be motivated solely by an effort to reduce the cost of the medications being prescribed, rather than any concern about the physical or mental condition of the employee. Therefore, if the employer-insurer forces the employee to change physicians in an effort to save

money, and the employee responds poorly to that change, the evidence might support an order at that point to change physicians based on a finding that the employee's life, health or recovery was endangered by the employer-insurer's selection. Under these circumstances, an administrative law judge might consider awarding costs of recovery to the employee under Section 287.560 RSMo.

Based on this ongoing concern regarding the employer-insurer's obligation to provide additional medical care, this award shall be deemed a temporary or partial award for the limited purpose of resolving all issues and disputes that may arise under Section 287.140 RSMo. In addition to the selection and possible changes in treating physicians, the parties might also need assistance in resolving disputes as to travel expenses, medical fee disputes with healthcare providers or other rights and obligations under chapter 287.140 RSMo. It should also be noted that since the employee has been awarded permanent total disability benefits against the employer-insurer, Section 287.200.2 mandates that the Division "shall keep the file open in the case during the lifetime of any injured employee who has received an award of permanent total disability". This provision was included to allow the Division to resolve disputes related to the suspension of permanent total disability payments as provided under Section 287.200.2.

Based on this section and the provisions of 287.140 RSMo., the Division and Commission should maintain an open file in the employee's case for purposes of resolving medical treatment issues and reviewing the status of the employee's permanent disability pursuant to Sections 287.140 and 287.200 RSMo.

The employee has requested an award for additional temporary total disability and permanent total disability, or in the alternative, permanent partial disability for the low back and related injuries suffered as a result of the employee's accident on November 4, 1997.

The employee's claim for temporary total disability covers the time period from July 17, 2000 through March 6, 2001. After her second surgery by Dr. Mirkin, the employee was forced to stop working on July 16, 2000 because of her ongoing complaints of severe low back and right leg pain. The employer-insurer did not pay temporary total disability payments for the next 233 days until she was subsequently seen by Dr. Robson. The employer-insurer then reinstated temporary total disability payments on March 7, 2001, and continued those payments until February 28, 2005.

Although the employee had initially been released by Dr. Mirkin after her second surgery, the medical records and testimony of Dr. Robson make it clear that the employee had not reached her maximum level of medical improvement and needed additional surgery to cure and relieve her from the effects of her work related injury. The testimony of the employee and the medical evidence establish that during this gap in temporary total disability payments prior to the third surgery performed by Dr. Robson, no employer, in the usual course of business, would reasonably have been expected to hire the employee in her physical condition at the time.

Based on this conclusion, I find that the employee was temporarily totally disabled from July 17, 2000 through March 6, 2001. The employer-insurer is therefore directed to pay to the employee the sum of $\ 531.52 per week for $332 / 7 weeks for a total award of temporary total disability equal to \ 17,692.02.

The employee has alleged that she is permanently and totally disabled as a result of her November 4, 1997 low back injury and her three additional surgical procedures and related depression. The employer-insurer has not offered any evidence to refute the employee's claim that she is permanently and totally disabled, but rather asserts that her permanent total disability is a result of a combination of her 1997 back injury and her other pre-existing and subsequent injuries to her upper extremities. The Second Injury Fund, however, convincingly argues that the employee's inability to work was caused solely by her low back injury and the related depression.

Based on the medical evidence submitted and the testimony of the employee, I find that given the employee's situation and condition, she is not able to compete in the open labor market. I further find that no employer in the usual course of business would reasonably be expected to hire the employee in her present physical condition. I further find that the employee's permanent total disability was caused by the employee's November 4, 1997 back injury and the resulting depression, without considering any additional disability caused by pre-existing or subsequent injuries to her upper extremities.

The medical evidence supports a finding that the employee reached her maximum level of medical improvement on September 24, 2002. The employer-insurer is therefore directed to pay to the employee the sum of $\ 531.52 per week commencing on September 24, 2002, and continuing for the remainder of the employee's life, or until suspended if the employee is restored to her regular work or its equivalent as provided in Section 287.200 RSMo. The employer-insurer paid temporary total disability benefits through February 28, 2005, and is entitled to a credit for those payments. The permanent total disability payments shall therefore commence effective March 1, 2005, and shall continue to be paid in accordance with the provisions of this award and Section 287.200 RSMo.

Under Section 287.220.1 RSMo., the statute provides 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...". Based on this provision, since the employer-insurer has been held liable for permanent total disability benefits, the Second Injury Fund has no additional liability. The employee's claim for compensation against the Second Injury Fund under injury number 97447116 must therefore be denied.

Although the employee has made no claim for previously incurred medical expenses or medical travel expenses for her December 2,1998 injury to her right shoulder, the employee has requested an award for future medical aid. After reviewing all of the medical records and other evidence, I find that there is no evidence to support a finding that the employee requires additional medical treatment to cure and relieve her from the effects of her December 2, 1998 right shoulder injury. The employee's request for an award for future medical care under injury number 98-171249 must therefore be denied.

The employee has requested an award for permanent partial disability as a result of the injury and resulting surgery to her right shoulder. Based on the employee's testimony and the medical evidence admitted, I find that the employee has sustained a 20 % permanent partial disability of her right upper extremity at the 232 week level as a result of her December 2, 1998 accident. The employer-insurer is therefore directed to pay to the employee the sum of $\ 294.73 per week for 46.4 weeks for a total award of permanent partial disability equal to $\ 13,675.47.

At the time of her December 2, 1998 accident, the employee had a pre-existing disability to her right elbow. The medical records indicate the employee had two surgeries to repair an ulnar nerve neuropathy or cubital tunnel syndrome. After her release from these surgical procedures, the employee continued to complain of numbness and tingling in her right upper extremity. The evidence further supports a finding that this pre-existing injury to the employee's right elbow affected the employee's ability to work, and was a hindrance or obstacle to her employment.

Based on the employee's testimony and the medical records, I find that as of December 2, 1998 the employee had a preexisting disability of 20 % of her right upper extremity at the 210 week level for a total of 42 weeks. I further find that this pre-existing disability synergistically combined with the employee's primary injury to her right shoulder to create an additional 10 % disability. The employee therefore had 42 weeks of pre-existing disability of her right elbow, and when that pre-existing disability is combined with the 46.4 weeks attributable to her December 2, 1998 right shoulder injury, the employee has an additional 8.84 weeks of disability as a result of the synergistic combination. The Second Injury Fund is therefore directed to pay to the employee the sum of $\ 294.73 per week for 8.84 weeks for a total of $\ 2,605.41.

Under her January 12, 2000 claim, the employee has not requested an award for previously incurred medical expenses or medical travel expenses, but has requested an award for future medical aid. The employee's injuries included bilateral carpal tunnel syndrome, bilateral trigger thumbs and an injury to her left elbow.

After reviewing all of the medical evidence and the employee's testimony, I find there is no evidence to support a finding that the employee requires additional medical treatment to cure and relieve her from the effects of the bilateral carpal tunnel syndrome, bilateral trigger thumbs or left elbow injury. The employee's request for an award of future medical aid is therefore denied.

Although the employee has not requested an award for additional temporary total disability under her January 12, 2000 claim, she has alleged that is entitled to an award for either permanent total disability or permanent partial disability benefits. The employee has offered no evidence to support a finding that the bilateral carpal tunnel syndrome, bilateral trigger thumbs and the left elbow injury caused her to be permanently and totally disabled. As previously noted, the employee's inability to work was caused by her 1997 back injury and subsequent surgical procedures. The employee's request for an award for permanent total disability benefits under injury number 00-001694 has therefore been denied.

The evidence does support, however, an award of permanent partial disability benefits for the employee's bilateral carpal tunnel, bilateral trigger thumb and left elbow injuries. Based on the evidence submitted, I find that the employee has a 20\% permanent partial disability of her right upper extremity at the 175 week level. This disability is attributed to the right carpal

tunnel syndrome and the right trigger thumb injuries. The employer-insurer is therefore directed to pay to the employee the sum of $\ 314.26 per week for 35 weeks for a total of $\ 10,999.10 for the employee's permanent partial disability to her right upper extremity.

I further find that the employee has sustained a 25 % permanent partial disability of her left upper extremity at the 210 week level. This disability is attributed to the employee's left carpal tunnel syndrome, her left trigger thumb and her left elbow injury. The employer-insurer is therefore directed to pay to the employee the sum of $\ 314.26 per week for 52.5 weeks for a total award of permanent partial disability to her left upper extremity of $\ 16,498.65.

In addition to the permanent partial disability attributable to her left and right upper extremities, I find that these two injuries combine synergistically to create an additional permanent partial disability for multiplicity equal to 15 % of the total. The employer-insurer is therefore directed to pay to the employee the sum of $\ 314.26 per week for 13.125 weeks ( 35 weeks + 52.5 weeks $=87.5 weeks \times 15 \%=513.125 weeks) for a total award for multiplicity of \ 4,124.66. The combined award for permanent partial disability to the right and left upper extremities and multiplicity is therefore equal to $\ 31,622.41.

In addition to her permanent partial disability, the employee also has scars on both wrists and both thumbs from the surgical procedures. Based on these scars, I find that the employee is entitled to 4 weeks for disfigurement. The employer-insurer is therefore directed to pay to the employee the sum of $\ 314.26 per week for 4 weeks for a total of $\ 1,257.04 for disfigurement.

The total amount awarded against the employer-insurer for permanent partial disability and disfigurement is equal to $\ 32,879.45.

The employee's January 12, 2000 claim also includes a claim against the Second Injury Fund for permanent total disability or permanent partial disability benefits. Based on the finding that the employee ultimately became permanently and totally disabled as a result of the November 4, 1997 claim, the employee's claim for permanent total disability benefits against the Second Injury Fund under injury number 00-001674 must be denied. As previously noted, the evidence does not support a finding that the employee's permanent total disability was caused by a combination of her last injury in this case and her preexisting injuries. Rather her permanent total disability was caused solely by her low back injury and related depression.

Although the evidence does not support an award of permanent total disability benefits against the Second Injury Fund, the employee's testimony and the medical records do support an award of permanent partial disability against the fund. The employee's pre-existing disabilities at the time of her January 12, 2000 claim included a 20 % permanent partial disability to her right elbow

for a total of 42 weeks, and a 20 % permanent partial disability of her right shoulder for a total of 46.4 weeks. The evidence supports a finding that both of these pre-existing disabilities affected the employee's ability to work and were a hindrance or obstacle to the employee's employment or re-employment. The evidence further supports a finding that these pre-existing disabilities

synergistically combined with the employee's primary injuries of bilateral carpal tunnel syndrome, bilateral trigger thumb and left elbow to create a 15 % additional disability or loading

factor. The total permanent partial disability awarded for the primary injuries was equal to 100.625 weeks ( 35 weeks for the right hand and wrist +52.5 weeks for the left hand and wrist and left elbow +13.125 weeks for multiplicity $=100.625$ weeks). When this permanent partial disability from the primary injuries is combined with the pre-existing right elbow and right shoulder injuries, the total amount of permanent partial disability is equal to 189.025 weeks. Using a 15 % loading factor, the Second Injury Fund is therefore liable for an additional 28.354 weeks of disability. The Second Injury Fund is therefore ordered to pay to the employee the sum of $\ 314.26 per weeks for 28.354 weeks for a total award of permanent partial disability against the Second Injury Fund equal to $\ 8,910.45.

Keith Link, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

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

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Jack H. Knowlan, Jr.

Chief Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Ms. Patricia "Pat" Secrest

Director

Division of Workers' Compensation