Daneen Pennington v. Timberlake Care Center

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 10-020750

Employee: Daneen Pennington

Employer: Timberlake Care Center (Settled)

Insurer: Missouri Nursing Home Insurance (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision reversing the August 28, 2012, award and decision of the administrative law judge. Nonetheless, we adopt the findings and conclusions of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and award herein.

The primary issue to be decided is whether employee was rendered permanently and totally disabled due to the effects of her work injury considered in isolation or due to the effects of the work injury in combination with her preexisting conditions.

Preliminaries

Employee sustained a work-related low back injury on March 22, 2010. Employee underwent low back fusion surgery. On March 15, 2011, Dr. Ciccarelli released employee from his care with permanent restrictions of no lifting over 25 pounds and avoiding repetitive bending or lifting on a frequent basis. Employee's employment with employer ended because employer could not accommodate employee's restrictions. Employee has not returned to work since her release from care.

Employee settled her workers' compensation claim against employer/insurer based upon an approximate permanent partial disability of 22.5 % of the body as a whole referable to the low back.

Employee proceeded to trial of her claim against the Second Injury Fund. The administrative law judge denied employee's claim against the Second Injury Fund because she found employee was rendered permanently and totally disabled due to the effects of the work injury considered in isolation. Employee appeals.

On March 22, 2010, employee injured her back lifting a box of paper. Dr. Ciccarelli treated employee for her back injury, which he diagnosed as a herniated disk at L4-5 (with unstable segment), L4-5 radiculopathy, L4-5 spondylolisthesis, L4-5 lumbar

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007, unless otherwise indicated.

stenosis, L4 foraminal stenosis, and chronic low back pain. After conservative care failed, Dr. Ciccarelli performed surgery on employee's back which included the following procedures, among others; bilateral laminectomies at L4 and L5, a lumbar foraminal discectomy at L4-5, a partial bilateral laminectomy at L3, and a lumbar fusion spanning L4-L5. Dr. Ciccarelli released employee from his care with permanent restrictions of no lifting over 25 pounds and directions to avoid frequent repetitive bending or lifting.

In July 2006, employee sustained a shoulder injury that was ultimately diagnosed as impingement syndrome. Dr. Frevert was employee's treating physician for this injury. He treated employee conservatively with injections and physical therapy. Dr. Frevert last treated employee on December 6, 2006. On that date, Dr. Frevert noted employee was still experiencing stiffness with her shoulder and that employee was having a little bit of a problem with overhead activity. Dr. Frevert concluded:

From my standpoint I think the shoulder will gradually improve if she will continue with a home exercise program and get to the point where I think she does very well with this. With that, we will release her from care at this time and let her do pretty much activities as she can tolerate with no specific restrictions. I encouraged her to continue with a home exercise program.

The administrative law judge found that Dr. Frevert released employee from his care without restrictions. This is not quite accurate. It is clear from Dr. Frevert's final treatment record that Dr. Frevert believed employee was still having some problems with her left shoulder and that Dr. Frevert believed employee's shoulder would continue to improve. And although he gave employee "no specific restrictions," Dr. Frevert did generally limit employee's activities to those "she can tolerate." This direction to limit activity to tolerance is itself a physical restriction that may expand or contract in relation to the employee's symptoms. Of course, this fluid restriction makes sense in light of Dr. Frevert's opinion that employee was not yet at maximum medical improvement with regard to her shoulder condition.

We find that the last time Dr. Frevert treated employee, he released her with a restriction to limit her shoulder activities to those activities employee can tolerate as to pain, strength, and range of motion.

The record belies the administrative law judge's finding that virtually all of employee's complaints, restrictions, and disabilities are directly attributable to her March 22, 2010, work injury. Employee credibly testified about how her shoulder condition caused her tremendous pain with reaching and that she suffered a loss of range of motion, shoulder strength, and grip strength. The effects of the shoulder condition hindered employee in the performance of her duties and forced employee to change the way she performed her work. Employee basically has to do everything with her right arm. When she worked at a residential care facility, employee had to push resident wheel chairs with only her right arm. Employee was unable to use her left arm to reach overhead so she performed overhead activities like changing a room-dividing curtain with only her right arm. Employee testified that she learned to mop using only her right arm. She learned to change the mop water using her right arm and her knee. At the conclusion of a work shift, employee's shoulder tingled and would burn with pain.

Employee rates her shoulder pain at a five on a scale of one to ten. She still has significant left shoulder problems with strength, reach, grip and dexterity. A home care aide must assist employee with dressing her torso because she cannot lift her left arm over her head.

Michael Dreiling was the only vocational expert to testify in this case. Mr. Dreiling is of the opinion that employee is permanently and totally disabled due to the effects of the primary injury in combination with her preexisting shoulder disability, vocational history, limited education, and lack of transferable skills.

The administrative law judge found that Mr. Dreiling's opinion is not credible because he did not consider whether the effects of the work injury alone rendered employee permanently and totally disabled. The following exchange between employee's counsel and Mr. Dreiling during Mr. Dreiling's testimony highlights that Mr. Dreiling did, in fact, consider whether employee's back injury considered in isolation rendered employee unemployable.

Q. And this unemployability, in your opinion as a vocational expert, is it due solely to her back injury in 2010 or is it a combination of the effects of the back as well as the effects on the earlier shoulder?

A. I felt that -- when I took into account the vocational profile and all the factors, including her medical condition, at least at face value, it appeared to me that it was both the shoulder problems she had in '06 as well as the back injury in 2010, along with the other vocational factors.

Dr. Stuckmeyer was the only medical expert to testify. After examining employee and reviewing employee's medical records, he testified that employee sustained a 25 % permanent partial disability of the body as a whole referable to the primary injury. Dr. Stuckmeyer believed employee's shoulder condition was a hindrance to employee's employment.

The administrative law judge found that Dr. Stuckmeyer's opinion is not credible because he did not consider whether the effects of the work injury alone rendered employee permanently and totally disabled. As he should have, Dr. Stuckmeyer opined as to employee's physical restrictions and deferred to Mr. Dreiling regarding whether or not employee can compete in the open labor market in her present physical condition.

We find employee to be credible. We also find credible the opinions of Dr. Stuckmeyer and Mr. Dreiling. We find that as of the date of the work injury, employee's shoulder condition constituted a measurable permanent disability and was a hindrance and obstacle to employment or reemployment. We find employee reached maximum medical improvement on March 15, 2011, as opined Dr. Ciccarelli.

We agree with the administrative law judge's conclusion that employee is permanently and totally disabled. But we disagree with the conclusion that employee's permanent total disability is due to the effects of the work injury considered in isolation as that

conclusion is directly contrary to the opinions of the only experts to testify in this matter. We find employee sustained permanent partial disability of 25 % of the body as a whole as a result of the March 22, 2010, back injury considered in isolation.

We find that employee was rendered permanently and totally disabled due to the combination of the effects of the work injury with her preexisting disabilities. Consequently, we find the Second Injury Fund is liable for permanent total disability benefits.

Because there is no difference between employee's permanent partial disability and permanent total disability compensation rates, the Second Injury Fund's obligation to pay benefits does not begin until the benefit period for the primary injury expires. Employee reached maximum medical improvement on March 15, 2011. The primary injury resulted in 100 weeks of disability. Consequently, for 100 weeks following March 15, 2011, the Second Injury Fund has no weekly obligation. Thereafter, employee is entitled to weekly permanent total disability benefits from the Second Injury Fund.

We reverse the administrative law judge's award denying permanent total disability benefits from the Second Injury Fund. Beginning February 20, 2013, the Second Injury Fund shall pay to employee weekly permanent total disability benefit of $\ 297.42. The weekly payments shall continue for employee's lifetime, or until modified by law.

Frederick Bryant, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee, which shall constitute a lien on said compensation.

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

The award and decision of Chief Administrative Law Judge Paula A. McKeon, issued August 28, 2012, is attached and incorporated by this reference, to the extent it is not inconsistent with this award.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of May 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Daneen Pennington

Injury No. 10-020750

Employer: Timberlake Care Center

Insurers: Missouri Nursing Home Insurance

Additional Party: Missouri Treasurer as Custodian of the Second Injury Fund

Hearing Date: July 18, 2012

Checked by: PAM/lh

1. Are any benefits awarded herein? No
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: March 22, 2010
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte County, Missouri
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 compe