All evidence was reviewed but only evidence supporting this award is referenced below. Any objections not expressly ruled upon in the award are overruled. Based upon a preponderance of the evidence, I find the following facts:
- Claimant was 27 years old at the time of the October 1999 work injury. A high school graduate with a 3.5 GPA, Claimant has eleven years of supervisory and management experience. She is a licensed cosmetologist, although she has never worked in that field.
- Pre-existing Conditions: Claimant was in fair health prior to February 1999. She took Albuterol for seasonal asthma flare ups. The asthma was diagnosed at age seven. Claimant missed no time from work and was not hospitalized for asthma prior to October 1999.
- At thirteen she was diagnosed with diabetes; and began taking 70/30 injectable insulin at age sixteen. She has medical follow-ups every three months to monitor diabetes. She has not missed work or been hospitalized due to this condition.
- She did not comply with diet, exercise and insulin treatments from 1991 to 1996; however, the diabetes was controlled in 1999.
- February 1999 Accident: On February 9, 1999 Claimant injured her back when she fell out of a chair and rammed her back into the seat of the chair. She reported the injury to Cathy Day, and medical treatment was authorized at Missouri Baptist Hospital.
- X-rays showed minimal spur formation at L5-S1. Claimant was diagnosed with a back sprain and instructed to follow up if she experienced numbness, weakness or tingling in her legs or feet. Her next treatment occurred five months later in the emergency room.
- She returned to work February 9th and continued to work a mandatory 10 hour shift until October 16, 1999, with no restrictions, accommodations or discipline for failure to perform her duties. She also
continued driving and performing daily activities of life.
- She sought unauthorized emergency room treatment several times during the summer of 1999 for pain in her back and shooting pain to her leg. Claimant did not request Employer provide treatment because she did not think the pain was related to the February 1999 work injury.
- She treated at BJC on July 27, 1999, for low back and leg pain and was diagnosed with a kidney infection. Repeat x-rays showed mild scoliosis and degenerative changes of the sacroiliac joints and L5-S1 posterior facets.
- On August 2, 1999, Claimant treated at Christian Northeast (CNE) Hospital Emergency Room for low back and left leg pain, with bilateral numbness on the bottom of her feet for 2-4 weeks. Medical records note "sciatica vs. neuropathy."
- Claimant returned to CNE on September 19, and September 29, 1999, with back pain and bilateral leg pain, left side to the foot and right side shooting pain to the knee. The left leg was reportedly worse with numbness and tingling.
- A CT scan on October 14, 1999, showed disc bulges at L4-5 and L5-S1 but no herniations.
Claimant missed no time from work up to October 16, 1999. The L3-4 disc was normal.
- Claimant continued to have back and leg pain up to October 16, 1999 when she reinjured her back.
- Work Experience: Claimant has 11 eleven years of fast food experience. She worked for Rally's eight years as a crew member and later as an assistant manager; before and after graduation from high school. Duties included lifting up to 50 pounds, unloading delivery trucks, operating cash registers, the grill, and food preparation while standing most of the time. She hired, assigned, and fired employees, completed paperwork, and operated the computer during a ten hour shift. Claimant worked sixty hours a week at Sabarro performing similar duties.
- In April 1998, Employer hired Claimant as a crew member, which required lifting 25 pound boxes of milk and juice, 50 pound bags of yeast, and 100 pound packages of dough. In July 1998, she was promoted to manager and received on the job training. She unloaded trucks and lifted 30 pounds of oil and 5 gallons of filling.
- October 16, 1999 Accident: Claimant re-injured her back on October 16, 1999. While carrying a
bag of yeast, she turned to enter a doorway and her legs gave out. She mistakenly told her attorney she was injured on October 19, 1999.
- The same day Claimant was taken by stretcher to CNE where she reported back and left leg pain. She gave a three month history of numbness in both feet. Examination revealed a positive straight leg raise on the left but X-rays were normal.
- Claimant was diagnosed with sciatica and returned to work the next day on light duty. However, light duty was not available, and she continued to lift 50 pound bags and pull 100 pounds of dough through doughnut making equipment.
- Claimant treated at HealthSouth from October 25, 1999 to December 21, 1999. Dr. Meadows prescribed more physical therapy, but she continued to worsen. He planned to refer Claimant to a specialist, however, she returned to CNE emergency room on December 23rd due to increased back and leg pain.
- Claimant has not sought employment since she resigned on December 2, 1999.
- In December 1999 Daniel Scodary ordered an MRI that revealed a medium sized central disc extrusion at L4-5, a small to medium sized disc protrusion at L3-4 central and to the right, and a small to medium sized disc protrusion at L5-S1, central and to the right. Claimant reported a "charley horse" sensation in her low back radiating to the left leg and toes with numbness and tingling, and right leg pain to the knee and calf.
- On December 27, 1999, medical records show Dr. Scodary performed a laminectomy at L4-5, removing multiple disc fragments and decompressing the nerve root on the left side.
- Dr. Stephen Smith, a pain management specialist, provided Claimant with several post operative injections.
- Claimant attended vocational rehabilitation sessions 5 days a week for a month. She was not provided with a certificate of completion or an opinion about her ability to work.
- Dr. Smith evaluated Claimant for pain management from January 2000 to April 2000. He found positive Waddell signs for "exaggeration, but no overreaction during examination," and possible depression due to pain. Epidural and selected nerve root injections were provided for right and left leg
pain at L3-4 and L4-5. Claimant was released with 75\% improvement.
- In April 2000, Dr. Scodary found Claimant "appeared to be doing well; her only problem being a little numbness on the anterior calf." He returned her to work April 24, 2000, with no restrictions.
- In May 2000, Claimant treated at John C. Murphy Clinic for low back and right leg pain. A repeat MRI on May 18, 2000 revealed spinal stenosis, post surgical changes, L4-5 on the left, and central and right herniation at L3-4 with impingement on the right L4 nerve root, which Dr. Scodary found consistent with Claimant's right sided symptoms. Dr. Scodary noted "it is questionable whether the L3-4 on the new MRI is clinically relevant," but Dr. Scodary recommended a second surgery.
- Claimant was referred to Dr. Barry Sampson by Employer for a second surgical opinion. Dr. Sampson examined Claimant on July 19, 2000. He found abnormalities at L3-4 on the right, but did not review the 10-14-99 CT scan or 12/23/99 MRI; and could not determine if the abnormality was present before the May 2000 MRI. He concluded Dr. Scodary's recommended surgery at L3-4 was reasonable.
- On July 28, 2000, Dr. Scodary performed a right discectomy at L3-4 at CNE based on continued pain, unsuccessful conservative care, and new right thigh weakness, and the absence of knee jerk. Postoperative physical therapy did not help. Claimant began to walk bent over and started using a cane.
- On September 14, 2000, Dr. Scodary continued physical therapy, and discussed the possibility of a third surgery after Claimant complained of continued right leg pain.
- Dr. Bernard Randolph treated Claimant from October to December 2000, at Employer's request. He referred Claimant to Dr. Scott Jones for physical therapy. Dr. Jones reported Claimant displayed "dramatic head and neck postures, gripping fists, holding forearms tight at rest, yet could freely bend to the left side." She moved freely when thought to be unobserved. He concluded Claimant's problem was attitude, posture, and refusal to follow instructions.
- Dr. Randolph found her complaints out of proportion to "objective abnormalities" and her ability to progress after surgery. He opined depression contributed to her complaints. He found she reached MMI in December 2000, and returned her to work full duty. Dr. Randolph rated 9\% PPD of the body for the L4-5 injury and 8 % for the L3-4 injury. However he opined the L3-4 disc injury was not related to the October 1999 accident.
- Claimant testified she was unable to work, and remained bent over with back and leg pain when Dr. Randolph released her to full duty on December 7, 2000.
- On October 24, 2001, a CT scan of the lower spine revealed disc degeneration at L3-4, L4-5, and L5S1, slight bulge and possible annular tear at L5-S1 to the right, without encroachment. A discogram revealed pain at L3-4 and L4-5, and degeneration at L3-4 and L4-5 radiating into the right leg. No major protrusion or herniation was found.
Marcaine injections to both discs provided some relief. Claimant was noted to have a very low pain threshold.
- Based on unsuccessful conservative treatment, continued right leg pain, and discogram results which produced pain at L3-4 and L4-5, an anterior fusion with cages was performed on May 13, 2002, at L3-4 and L4-5 by Drs. Scodary and Charles. After the third surgery, Claimant testified she could stand more erect, but continued to have pain.
- On July 3, 2002, an MRI revealed a left sided herniated disc at L5-S1. On August 23, 2002, Dr. Scodary performed the fourth surgery, a left sided discectomy at L5-S1 which revealed overgrown facets and a herniated disc.
- Claimant did not improve after post-operative physical therapy. Dr. Stephen Smith released Claimant from pain management, and found her to be at MMI in November 2002, when he was unable to provide injections due to Claimant's pain level.
- Claimant last saw Dr. Scodary on October 3, 2002 complaining of back pain radiating down her right leg, and diffuse bilateral leg and knee pain, which worsened in cold weather. Dr. Scodary opined diabetes may be a factor in her level of symptoms. He released her with "common sense" restrictions. A functional capacity evaluation was recommended but not obtained.
- Claimant follows up every three months with Dr. Spearman, her primary care physician, to check medication, blood and protein. She takes 16 medications daily for diabetes, anxiety, depression, blood pressure, and pain.
- Claimant's current complaints include back and leg pain to both knees, which impacts her ability to walk or use stairs. Claimant uses a cane for most activities, and sleep is difficult due to pain. Sitting is difficult and causes her to change positions. Cold causes pain. She can no longer socialize with friends due to medication and slow movement. She can drive up to two miles. Bending is painful. She has gained 50 pounds due to inactivity `and has decreased energy.
- Claimant can no longer lift 50 pounds of product or pull 100 pounds of product through a doughnut machine. Strong medication prevents her from operating dangerous equipment.
- Claimant fell three times between 2000 and 2005. She injured her legs twice at her mother's house when her legs gave out. In 2001, she fell to her knees when her legs gave out without warning. Claimant fell at home in November 2003 and heard a pop in her back followed by increased pain.
- Dr. Raymond Cohen is a board certified neurologist who testified on behalf of Claimant. He diagnosed a lumbar strain with myalgia as a result of the February 9, 1999 work accident.
- Dr. Cohen diagnosed lumbar radiculopathy, herniated disc, failed lumbar laminectomy syndrome, and depression related to the October 1999 accident. He opined the injuries sustained in February and October 1999 were the substantial factor in causing Claimant's spine disability. Dr. Cohen found the four surgeries were needed as a result of the February 1999 and October 1999 work injuries.
- Dr. Cohen found the treatment provided by Dr. Scodary was reasonable and necessary to cure and relieve Claimant from the effects of the injuries.
- Dr. Cohen set the following permanent restrictions; no repetitive bending, lifting, twisting or stooping, 5 pound weight limit, no prolonged sitting or standing, or climbing or walking on uneven surfaces.
- Dr. Cohen rated 70\% PPD of the lumbar spine, 10\% due to the February 1999 accident, 60\% due to the October 1999 accident, and 20\% for depression. Dr. Cohen determined Claimant needed pain management for life for failed back syndrome.
- Dr. Cohen rated 25\% of the body as whole for preexisting diabetes and asthma. He found Claimant's pre-existing conditions combined with the October 1999 work injury to create a synergistic effect. He opined the pre-existing conditions were a hindrance or obstacle to employment and Claimant was PTD as a result of the combined injuries.
- On cross examination, Dr. Cohen testified the back injuries alone would have caused Claimant to be PTD. He also acknowledged Claimant may have preexisting degenerative changes of the lumbar spine based on the February 1999 x-rays.
- Dr. Russell Cantrell, a physiatrist, is board certified in physical medicine and rehabilitation, and provided an Independent Medical Examination on March 21, 2005 at Employer's request. Claimant's complaints included low back and bilateral leg pain, right greater than left, bilateral leg weakness with buckling, and numbness below the knee to her feet.
- Dr. Cantrell's examination revealed "stocking glove sensory loss," loss of pin prick sensation in both legs, and decreased ankle reflexes. He concluded these findings were related to diabetic neuropathy, not radicular neuropathy, which is caused by a pinched nerve.
- He noted Claimant initially complained of back and buttock symptoms after the February 1999 injury. Dr. Cantrell testified ridicular symptoms usually appear within 72 hours of injury. However, in this case, they did not appear until July, five months after the injury. In addition, a CT scan taken two days before the October 1999 injury showed disc bulges at L4-5 and L5-S1, but no herniation.
- Dr. Cantrell diagnosed a lumbar strain for the February 1999 injury, found Claimant had reached MMI, assigned no restrictions; and rated 5\% PPD of the lumbar spine.
- For the October 1999 injury, Dr. Cantrell diagnosed peripheral neuropathy, and opined Claimant's multiple leg problems were caused by insulin dependent diabetes, and not a pinched nerve in her back. Dr. Cantrell found Claimant's pain and numbness was not related to a specific dermatome, and did not follow the distribution of a nerve root.
- Dr. Cantrell concluded the three additional back surgeries were not work related because
Claimant had no radicular symptoms at L3-4 when diagnosed with a disc herniation to the right, no neurologic deficits were found until after the first surgery, the two level fusion addressed pre-existing degenerative changes, and the fourth surgery was based on degenerative changes not related to the 1999 injuries.
- Dr. Cantrell disagreed with Claimant's history of no right leg pain until after the first surgery, and noted medical reports in August and September 1999 where she complained of bilateral foot numbness and leg pain.
- He concluded the second surgery at L3-4, was performed due to pain and the new absence of a right knee reflex, which he did not attribute to the October 1999 injury. He noted three doctors found Claimant's pain complaints were exaggerated or out of proportion; and possibly aggravated by depression. Dr. Cantrell also noted various symptoms with different begin dates.
- Dr. Cantrell diagnosed a herniated disc at L4-5 for the October 1999 work injury, and opined Claimant achieved MMI with 10\% PPD of the lumbar spine. Dr. Cantrell imposed sedentary to light work restrictions which he found unrelated to the 1999 work injuries. A functional capacity evaluation was recommended but not obtained.
- Pre-existing conditions included high blood pressure, depression, asthma, and degenerative changes
of the lumbar spine. He rated 15 % of the body for the pre-existing degeneration but did not rate other preexisting conditions.
- Dean Rosen, Ph.D., a clinical psychologist, testified on Claimant's behalf. Dr. Rosen interviewed Claimant on May 17, 2004, and administered the MMPI-2 test.
- Based on the interview, test results, and medical records, Dr. Rosen diagnosed depression and pain disorder. He testified two-thirds of her medical condition was caused by the October 1999 injury, and one-third was related to diabetes. Dr. Rosen opined the February 1999 injury contributed in a small way to Claimant's depression.
- Test results show an IQ in the high end of low average, difficulty with concentration, psychopathology, and depression masked by somatizing, focusing on her pain, denial, excessive inhibition, and indecisiveness. Dr. Rosen found excessive inhibition and indecisiveness to be long term personality traits. He diagnosed interpersonal distrust, alienation, disconnection with motives and feelings, inability to deal with anger and resentment, and being easily overwhelmed by minor stress.
- MMPI-2 results reflected overall psychiatric impairment. Dr. Rosen found Claimant's global assessment to be 50 indicating "serious disruptive symptoms and psychological impairment." He rated 20\% PPD of the person to the 1999 back injuries and 10\% to depression from diabetes. He did not recommend treatment due to the chronic nature of her physical problems, the length of time since the injuries, and Claimant's inability to trust or develop appropriate self-awareness and insight.
- Dr. Wayne Stillings is a board certified psychiatrist, who conducted an IME at Employer's request on July 12, 2005. He performed the MMPI-2 and MCMI-III personality test. Dr. Stillings found Claimant's global assessment to be 55, indicating moderate symptoms.
- Dr. Stillings concluded the February 1999 work accident was not a substantial factor in causing or aggravating Claimant's psychiatric condition, no psychiatric treatment was recommended, Claimant had reached MMI, and she was able to work any job appropriate for her background, training, education, and experience without restrictions. Dr. Stillings found no PPD for the February 1999 injury.
- Dr. Stillings found the October 1999 accident was a substantial factor in aggravating Claimant's personality disorder, however, no medical treatment was recommended. He opined that Claimant had reached MMI and was capable of working any job appropriate for her qualifications. He rated 1-2\% PPD of the body for the aggravation of the preexisting psychiatric condition, and 35\% PPD for the preexisting personality disorder.
- Dr. Stillings related Claimant's "flat affect" to preexisting schizophrenia, not severe chronic pain. He suggested Claimant's surgical result should have been better; however, she had difficulty coping with multiple surgeries due to transferring her "interpsychic conflict" into physical complaints. Also, Claimant's desire to express long standing resentment conflicts with her fear that such expression would be humiliating. This conflict resulted in chronic tension and the somatic disorders.
- Dr. Stillings found Claimant did not know she had personality problems, which explained the lack of psychiatric treatment before 1999.
- Mr. James Israel is a nationally certified vocational rehabilitation counselor, and he testified on behalf of Claimant on February 18, 2005. Claimant reported ongoing back pain radiating to both legs, right leg "sledgehammer" type pounding pain, decreased energy, weight gain from inactivity, depression, upper and lower extremity limitations, problems stooping, kneeling, squatting, bending, twisting, inability to sit more than 15 minutes, ability to stand up to 30 minutes with cane support, and walk up to 15 minutes.
- Transferable skills: Mr. Israel identified sedentary and light job classifications within Claimant's restrictions. Based on Claimant's past management experience, Mr. Israel found she had potentially transferable skills in management, fast food concessions, liquor establishment, fast food services and reservations. However, he concluded the number of potential jobs was "excessively narrow" based on Claimant's work restrictions and inability to transfer managerial skills to unskilled work.
- Mr. Israel concluded Claimant could not return to her former employment, without medical and psychological improvement and retraining. Mr. Israel observed Claimant leaning to one side, crying, and sitting for 30 minutes before requiring a break. Mr. Israel speculated Claimant would have problems keeping any job within the restrictions.
- Employability: Mr. Israel found "significant numbers" of unskilled or semi-skilled sedentary or light jobs, including assemblers, order clerks, hand packers, and cashiers. However, he concluded Claimant could not work these jobs because; 1) She has not worked these jobs before, 2) She could not apply her management experience to the work, 3) She has a limited capacity to adjust to unfamiliar work, and 4) Light jobs do not provide for work place accommodations needed for Claimant's physical and mental disabilities.
- Based on Claimant's age, education, physical and mental limitations, injuries, restrictions, pain, and limited job opportunities, Mr. Israel found Claimant to be "insurmountably disadvantaged" and unable to compete in the open labor market.
- Mr. Israel found Claimant's preexisting diabetes and asthma were a hindrance or obstacle to
employment or reemployment.
- Mr. Israel performed no formal testing because Claimant had performed supervisory responsibilities, earned a 3.5 GPA, and obtained a cosmetology license.
- Mr. Israel found Claimant to be a good candidate for vocational training based on "15 years of significant transferable skills." However he concluded her overall physical and mental condition decreased her chances for successful training.
- Mr. James England, Jr. is a rehabilitation counselor who interviewed Claimant at Employer's request. Using Dr. Cantrell's light restrictions he found Claimant employable in most food service management positions, retail sales or as a cashier. Based on Dr. Cohen's sedentary restrictions, he found Claimant could perform sit-down jobs as an alarm monitor for a security company, night motel clerk, entry level office clerk, parking lot attendant, and customer service representative.
- Mr. England opined Claimant was unable to work based on Dr. Rosen's psychiatric assessment of 50. He opined Dr. Stillings' assessment of 55 would permit Claimant to work without psychiatric restrictions and within the restrictions set by Drs. Cohen and Cantrell.
- Mr. England found Claimant eligible for vocational rehabilitation training, career counseling and placement at no charge.