Maria Rodriguez v. Ameristar Casino

causing moderate stenosis of the spinal canal. The MRI also revealed minimal canal stenosis at L5-S1 and a small amount of posterior midline bulging of the L1-2 disc.

In June 2002, employee injured her right hand at work when a casino customer shut her hand in a door. Doctors suspected employee suffered a non-displaced navicular fracture. X-rays also revealed degenerative spurring at the distal interphalangeal joints. Doctors recommended over-the-counter medications and a follow-up with an orthopedic surgeon, and restricted her from using her right hand until cleared.

In April 2003, employee again hurt her low back at work when she threw a trash bag. Diagnostic imaging revealed mild anterior wedging at L3 and L4, anterior bone spurs at L3-4 and L4-5, and disc space narrowing at L5-S1. Doctors prescribed Tylenol #3 and Flexeril, and instructed employee not to return to work until cleared by the company physician.

On April 27, 2004, employee saw Dr. Divelbiss for complaints of right wrist and hand pain. Dr. Divelbiss diagnosed right long and ring finger trigger finger and right extensor carpi ulnaris tendinitis, and performed an injection of Aristocort mixed with lidocaine into the A-1 pulley regions of the right long and ring finger. Dr. Divelbiss recommended a wrist splint and physical therapy, and instructed employee to follow-up with him in six weeks.

Employee credibly testified (and we so find) that her low back pain affected her ability to work as quickly as employer expected and resulted in employee's needing to request assistance with certain tasks; employee's supervisors occasionally reprimanded her for not working fast enough.

Employee presented the expert medical testimony of Dr. Koprivica, who opined that, as of the date of the primary injury, employee suffered from a 15% preexisting permanent partial disability of the body as a whole referable to lumbar stenosis, and 15% preexisting permanent partial disability of the right upper extremity at the 200-week level referable to trigger fingers and extensor carpi ulnaris tendinitis. The Second Injury Fund did not present any expert medical testimony. We credit the unopposed testimony from Dr. Koprivica as to employee's preexisting conditions and adopt his ratings as our own.

Employee worked as a porter for employer, which involved cleaning bathrooms, mopping, sweeping, vacuuming, cleaning stairs and columns, cleaning casino machines, and cleaning the walls. On May 6, 2004, employee sustained an accident at work when she fell while cleaning casino machines. Employee hurt her low back, right arm, right knee, and neck in this accident. A June 23, 2004, MRI revealed a broad-based central disc bulge or protrusion at T11-12 and L1-2; high grade stenosis at L4-5 secondary to circumferential ligamental thickening and facet arthropathy; mild stenosis at L5-S1 with obliteration of the foraminal fat on the left suggesting mild narrowing of the lateral process. Employee underwent a course of steroid injections to the low back during October 2004. Employer's authorized treating physician, Dr. Jackson, found that employee reached maximum medical improvement and released her from treatment on July 19, 2005. Dr. Jackson opined that employee sustained a sprain or aggravation of

the degenerative process in her back resulting in a 7 % permanent partial disability of the body as a whole.

Employee experienced some depression after the May 2004 accident. Employee believes her depression arose from her lack of a job and because she had no means to pay for rent, bills, and food. At one point, employee attempted suicide, and was briefly hospitalized. In her settlement reached with employer of her claim arising from the May 2004 accident, employer and employee stipulated that employee sustained a 29\% permanent partial disability of the body as a whole.

Employee had to leave her work for employer following the May 2004 accident. Employee has been unable to return to any employment owing to her severe low back pain. Employee is unable to stand or sit more than 10 or 15 minutes. Employee is unable to do any housework. Employee doesn't use her right hand for anything anymore. Employee is unable to grasp anything with her right hand. Employee's right knee continues to cause her pain and occasional problems when she walks, but employee feels that her primary problem is her low back. Employee does not believe she can return to any type of work.

Most of employee's previous jobs consisted of unskilled, repetitive tasks such as assembly work that involved extensive use of both upper extremities. Employee was 61 years old as of the date of the hearing before the administrative law judge. Employee completed the sixth grade in Mexico, and she has not attended any high school, college, or vocational school.

Employee presents the expert medical testimony of Dr. Koprivica, who opined that the May 2004 injury caused employee to suffer an aggravating injury of her lumbar spine resulting in a 15 % permanent partial disability, and also a right upper extremity injury amounting to a 20 % permanent partial disability at the 232 -week level. Dr. Koprivica also rated employee's injuries as resulting in a 30 % permanent partial disability of the body as a whole globally. Dr. Koprivica believes that employee sustained some psychological disability attributable to the May 2004 disability, but acknowledged that such findings were outside the scope of his expertise.

Dr. Koprivica opined that employee is permanently and totally disabled owing to the combination of her primary injury and preexisting conditions. Dr. Koprivica specifically considered the physical effects of the last injury in isolation:

[I]t is my opinion that the permanent and total disability arises based on the impact of combining the permanent partial disabilities that predated the primary injury of May 6, 2004, with the additional disability attributable to the May 6, 2004, work injury. I would not consider the permanent partial disability based on the May 6, 2004, injury to result in permanent and total disability in isolation.

Transcript, page 151.

Employee also presents the expert vocational testimony of Michael Dreiling. Mr. Dreiling opined that, based on employee's age, limited education, and vocational profile, she is not a candidate for a return to any of her past relevant work, or any other type of work in the open labor market. Mr. Dreiling opined that, absent employee improving medically, she would remain totally unable to engage in the labor market.

The Second Injury Fund did not present any expert medical or vocational evidence. We credit the unopposed testimony from Dr. Koprivica and Mr. Dreiling. We find that employee reached maximum medical improvement on July 19, 2005. We find employee will be unable to compete for jobs or sustain them in the long run owing to her preexisting and current back complaints.

The version of § 287.020 RSMo applicable to this claim provides, in relevant part, as follows:

1. ... An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.

We conclude that employee has met her burden on the issue of medical causation. We have credited Dr. Koprivica's testimony that the May 2004 accident caused employee to suffer a low back injury and resultant disability. Consequently, we conclude that work was a substantial factor causing employee to sustain an aggravating injury of her lumbar spine and right upper extremity injury resulting in a 30\% global permanent partial disability of the body as a whole.

Section 287.220 RSMo creates the Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that she suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

We have credited Dr. Koprivica's testimony that employee's preexisting low back and right arm conditions were permanently and partially disabling as of the date of the primary low back injury. When we apply the foregoing test, we are convinced that employee's preexisting low back and right arm conditions had the potential to combine with subsequent work injuries to cause greater disability than in the absence of these conditions. Accordingly, we conclude each of these conditions were serious enough to constitute hindrances or obstacles to employment for purposes of § 287.220.1 RSMo.

For the Fund to be liable for permanent total disability benef