The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are incorporated and adopted by the Commission herein.
Following employee's December 20, 2009, work injury, she was never released to return to work again. Employee testified that she is presently in constant pain that she rates as an 8 to 10 on a scale of 1 to 10 . The constant pain that she had in her back before the December 20, 2009, work accident now also extends into her left hip and leg. Employee stated that she has pain if she sits in place for more than 15 minutes and she needs to frequently switch positions from sitting to standing.
Employee testified that prior to the December 20, 2009, work accident she would often have to lie down in the evening with a heated pad on her back to relieve her pain. Employee stated that immediately after the December 20, 2009, work accident she began having to lie down during the day. Employee testified that she currently has to lie down at least two or three times a day.
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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009 unless otherwise indicated.
Dr. Dale began seeing employee on April 15, 2010. He testified that employee's December 20, 2009, work accident caused an annular tear and back pain. Dr. Dale further testified that employee's degenerative disc disease was probably preexisting.
During Dr. Dale's deposition he was asked to go through each of employee's restrictions and provide his opinion as to whether each restriction was the result of employee's back condition or fibromyalgia. Dr. Dale attributed employee's restrictions of no climbing, stooping, kneeling, crouching, crawling, and reaching to employee's back condition. Dr. Dale attributed employee's restrictions associated with handling, fingering, and feeling to employee's fibromyalgia. Dr. Dale then testified, "the pain factors, the need to even lie down, essentially the fibromyalgia isn't causing that so much. And then the pain medication is pretty much for the back problem." Dr. Dale attributed employee's lifting restriction of less than five pounds to both the back condition and the fibromyalgia. In clarification, Dr. Dale affirmatively testified that the lifting restriction of less than five pounds was independently caused by both the back condition and the fibromyalgia.
Dr. Dale testified that employee could only continuously walk for 15 minutes before she has an exacerbation of pain. He attributed this exacerbation of pain to both the back condition and the fibromyalgia, independently. With respect to this walking restriction, Dr. Dale further stated that if employee were to continuously walk for 15 minutes, day in and day out, he "would expect her to not be able to show up for work at least one day a week."
Dr. Dale also found that employee could not sit for more than 45 continuous minutes before experiencing an exacerbation of lumbar pain. Dr. Dale testified that employee could get away with more sitting if she lies down frequently, rests her back, and pays attention to her habits.
With respect to employee's pain factors, Dr. Dale testified that employee needs to lie down 15-20 minutes every 45 minutes during an eight-hour workday in order to prevent her from experiencing an exacerbation of pain that would preclude her from being able to go to work for the next several days. Dr. Dale listed in his Medical Source Statement that employee is only able to sit for two hours (total) throughout an eight-hour workday (with usual breaks) and only able to stand and/or walk for two hours (total) throughout an eight-hour workday (with usual breaks). Dr. Dale testified that without employee's fibromyalgia, her sitting, standing, and walking tolerances would be doubled to four hours during an eight-hour workday.
Dr. Swaim performed an independent medical evaluation of employee. Dr. Swaim never diagnosed employee with fibromyalgia or considered it in his reported limitations. During his deposition, however, Dr. Swaim did acknowledge that employee was diagnosed with fibromyalgia after the December 20, 2009, work injury.
Dr. Swaim testified that he believed "there are going to be times when [employee is] going to need to lie down in terms of treatment of her discomfort." Dr. Swaim noted in his report that he included that employee's "discomfort improved by changing positions, some limited improvement with Vicodin, and some limited improvement by lying down." Dr. Swaim went on to state that "there's going to be times when she may have to lie
Injury No.: 09-100903
Employee: Kristine Hilgart
-3 -
down longer or more frequent based on a lot of things, the amount of stress she puts on her back, or sometimes weather changes would cause the necessity for more treatment. So it would be more up to her. I wouldn't say you have to lie down half an hour every three hours or anything like that." (emphasis added).
Mr. Swearingin performed a vocational examination and evaluation of employee, and opined that employee is permanently and totally disabled as a result of the governing permanent restrictions caused by the work injury of December 20, 2009, and her preexisting low back condition. Mr. Swearingin testified that employee is unemployable due to her need to lie down throughout the day. Specifically, Mr. Swearingin stated, "people who have to lie down at the job are not going to hold employment, and that goes whether you have to lay down 30 minutes every day or whether you have to have a day or two a week that you lay down for a while. That just doesn't ... allow you to function in the labor market."
Lastly, Mr. Swearingin testified that it is employee's back pain that drives her need to periodically lie down throughout the day.
Employee settled her claim against employer/insurer. The settlement was based upon an approximate permanent partial disability of 12.5 % of the body as a whole referable to the lumbar spine. We find that this approximation is supported by the opinions of Dr. Swaim.
We find that as a result of the work injury, employee sustained permanent partial disability of 12.5 % of the body as a whole referable to the lumbar spine. We find employee reached maximum medical improvement on May 30, 2010, the date Dr. Swaim evaluated employee and opined the same in his independent medical evaluation report.