Nancy Werner-Leible v. Le Lu Metalcraft

The record demonstrates that employee did suffer from actual and measurable disabilities at the time of her workrelated injury that were a hindrance or obstacle to employment. Therefore, employee is not permanently and totally disabled as a result of the work injury alone. The evidence supports a finding that employee's pre-existing disabilities combined with her work-related injury to render her permanently and totally disabled.

Employee provided testimony with regard to her pre-existing conditions. She testified that she was diagnosed with fibromyalgia several years preceding her work-related injury. She testified that her symptoms from the condition included: chronic fatigue, depression, sleep deprivation, achiness, weakness, poor grip, tenderness and difficultly raising her arm. She stated that most days she feels like she has the flu. Employee testified that she has received continuous treatment for the condition since she was diagnosed. She takes prescription medication and receives trigger point injections when she needs additional relief. Employee testified that prior to 1998 that she was having a lot of problems with sleep and depression as well as pain and fatigue. She testified that she experienced these symptoms on a daily basis. Employee also testified that she had carpal tunnel syndrome on the right and subsequently had surgery in 1983 or 1984. Following the surgery employee had a resumption of her symptoms including tingling and numbness in her right hand as well as to pain in her wrist and arm.

Employee also provided testimony regarding disabilities resulting from her work injury. She testified that she continues to experience persistent pain in her back and bilateral knees. Employee testified that she must elevate her legs for approximately half the day in order to help alleviate her knee pain. She testified that she began experiencing persistent back pain following her right total knee replacement in 2001. An MRI in November 2001 revealed a moderate central disc protrusion. Employee testified that the back pain persisted after her left total knee replacement in 2002. A second MRI in December 2003 revealed a central disc herniation with degenerative findings and facet disease. Employee testified that she continues to suffer chronic back pain for which she receives epidural steroid injections.

Employee's testimony was supported by expert opinions of Dr. Poetz and Mr. England. With regard to her workrelated injury, Dr. Poetz opined employee suffered a 50\% permanent partial disability to the lower right extremity as measured at the right knee directly resultant from the September 17, 1998 injury and a 50\% permanent partial disability to the lower left extremity as measured at the left knee directly resultant from the September 17, 1998 injury. Dr. Poetz opined employee suffered a 40\% permanent partial disability ( 30 % work-related and 10\% preexisting) rated at the spine.

Dr. Poetz provided ratings regarding employee's pre-existing conditions. He concluded employee suffered a 25\% permanent partial disability to the body as a whole due to fibromyalgia; a 35\% permanent partial disability to the upper right extremity as measured at the right hand and wrist; and a 20\% permanent partial disability to the body as a whole as measured at the cardiovascular system. Dr. Poetz opined employee was permanently and totally disabled as a result of the combination of the September 17, 1998 injuries and her pre-existing conditions.

Furthermore, Mr. James England, vocational expert, evaluated employee on January 3, 2003. He opined that employee's pre-existing problems, predominately fibromyalgia, combined with her work injury to render her permanently and totally disabled. Mr. England provided competent testimony that employee's pre-existing conditions impeded her employment and affected her ability to compete in the open labor market.

Employee has sustained her burden of proving Second Injury Fund liability as her testimony along with both medical and vocational experts support a finding that she is permanently and totally disabled as a result of the combination of pre-existing disabilities and her work-related injury.

After considering the entire record, including the expert opinions of Dr. Poetz and Mr. England, we conclude that employee is permanently and totally disabled due to a combination of her pre-existing disabilities and September 17, 1998 work-related injury.

The Commission agrees that employee has proven the need for ongoing medical care and treatment with regard to her bilateral knees and back condition. The need for future medical care was established as being reasonably

probable through competent, medical testimony. Dr. Maloney's records establish that employee will need ongoing treatment with regard to her knee replacements. Employee has also undergone epidural steroid injections which were recommended by Dr. Metzler to treat her chronic back condition. He also opined that he would not completely rule out the possibility of surgical referral in the future if employee's pain should become more severe or if she should develop new neurological symptoms. Therefore, we award future medical care and treatment for employee's bilateral knees and back condition.

The Commission concludes that the competent and substantial evidence supports a finding that employer is liable for 50 % permanent partial disability to the body as a whole referable to bilateral knees and low back as a result of her work injury of September 17, 1998. We find employee suffered the following pre-existing disabilities: 20\% permanent partial disability to the body as a whole due to fibromyalgia; 12.5 % permanent partial disability to the body as a whole referable to the right upper extremity; and 20 % permanent partial disability to the body as a whole referable to the cardiovascular system. We find the combination of employee's pre-existing disabilities and her work-related injury render her permanently and totally disabled.

Employer shall pay employee permanent partial disability benefits in the weekly amount of $\ 294.73 and the Second Injury Fund shall pay the difference of $\ 38.60, beginning March 30, 2003 for 200 weeks; and thereafter, employee shall receive permanent total disability benefits from the Second Injury Fund in the weekly amount of $\ 333.33 for the remainder of her lifetime, or until as modified by law.

We award future medical care and treatment to cure and relieve employee from the residuals and effects of her injury related to her bilateral knees and back, pursuant to the provisions of section 287.140 RSMo.

As stated above, all remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued February 7, 2007, as modified, 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 $25^{\text {th }}$ day of July 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 17, 1998
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant tripped at work.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Both lower extremities a