Michelle Belt v. St. John's Mercy Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-003112

Employee: Michelle Belt

Employer: St. John's Mercy Medical Center

Insurer: Self-Insured

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated November 26, 2012. The award and decision of Administrative Law Judge John K. Ottenad, issued November 26, 2012, 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 $21^{\text {st }}$ day of June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., 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: January 5, 2008
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 worked as a patient care associate for Employer and injured her low back and body as a whole, when she and a patient fell to the floor as she was transferring the patient from a wheelchair to the bed.
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: Low Back and Body as a Whole (Psychiatric)
14. Nature and extent of any permanent disability: 32.5 % of the Body as a Whole-Low Back and 12.5 % of the Body as a Whole-Psychiatric Conditions
15. Compensation paid to-date for temporary disability: $\ 3,986.43
16. Value necessary medical aid paid to date by employer/insurer? $\ 92,423.72

Employee: Michelle Belt Injury No.: 08-003112

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 509.94
3. Weekly compensation rate: $\ 339.96 for TTD/ $\ 339.96 for PPD
4. Method wages computation: Pursuant to Mo. Rev. Stat. § 287.250 (2005)

1. Amount of compensation payable:

Additional temporary total disability payment as a result of the use of the correct rate $\ 190.22

180 weeks of permanent partial disability $\ 61,192.80

1. Second Injury Fund liability:

22.64 weeks of permanent partial disability benefits $\ 7,696.69

TOTAL: $\mathbf{\$ 6 9 , 0 7 9 . 7 1}$

1. Future requirements awarded: Continued and ongoing future medical treatment for Claimant's low back and psychiatric (mood disorder, pain disorder and anxiety disorder) conditions related to this January 5, 2008 work injury, including but not limited to medications, medication management (doctors' visits), physical therapy, counseling and any other testing, treatment or evaluation that the treating doctors deem necessary to cure and relieve Claimant of the effects of the injury, as described in the award.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Gary W. Kullmann.

Employee: Michelle Belt

Dependents: N/A

Employer: St. John's Mercy Medical Center

Additional Party: Second Injury Fund

Insurer: Self-Insured

Injury No.: 08-003112

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On June 7, 2012, the employee, Michelle Belt, appeared in person and by her attorney, Mr. Gary W. Kullmann, for a hearing for a final award on her claim against the employer, St. John's Mercy Medical Center, which is duly self-insured under the statute, as well as the Second Injury Fund. The employer, St. John's Mercy Medical Center, which is duly self-insured under the statute, was represented at the hearing by its attorney, Mr. Maurice D. Early. The Second Injury Fund was represented at the hearing by Assistant Attorney General Carol Barnard.

To allow the parties time to obtain the deposition transcript of Dr. James Coyle and to prepare and file their proposed awards or briefs in this matter, the record did not technically close until July 7, 2012. Although we did not go back on the record, we simply marked Dr. Coyle's deposition transcript as Employer/Insurer's Exhibit 1 pursuant to the agreement of the parties at the time of trial. The record was, then, closed on July 7, 2012 following the submission of the briefs by the parties on July 6, 2012.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about January 5, 2008, Michelle Belt (Claimant) sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of St. John's Mercy Medical Center (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) Employer paid temporary total disability (TTD) benefits in the amount of $\ 3,986.43, representing a period of time of $122 / 7 weeks.

7) Employer paid medical benefits totaling \ 92,423.72.

8) Claimant sustained pre-existing permanent partial disability of 20 % of the left shoulder, which pre-existed the accidental injury on January 5, 2008.

9) A 10 % load factor for the combination of the primary and pre-existing disabilities is applicable.

1) What is the appropriate average weekly wage and rates of compensation for this injury?

2) Is Claimant entitled to future medical treatment?

3) Is Claimant entitled to the payment of additional temporary total disability benefits based on an alleged underpayment as a result of her rate?

4) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

5) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Certified medical treatment records of St. John's Mercy Medical Center

B. Certified medical treatment records of St. John's Mercy Corporate Health

C. Certified medical treatment records of Dr. James Coyle

D. Certified medical treatment records of St. John's Mercy Rehab Hospital

E. Certified medical treatment records of St. John's Sports \& Therapy

F. Certified medical treatment records of Unity Corporate Health

G. Certified medical treatment records of Mid County Orthopaedic Surgery and Sports Medicine

H. Certified medical treatment records of Memorial Hospital

I. Correspondence from Employer to Claimant between November 21, 2008 and December 12, 2008

J. Claimant's wage statement and corresponding payroll stubs

K. Stipulation for Compromise Settlement for Injury Number 06-059220 (Date of Injury of June 29, 2006) between Claimant and Employer

L. Certified computer records of the Illinois Workers' Compensation Commission

M. Deposition of Dr. David Volarich, with attachments, dated October 21, 2010

N. Deposition of Dr. Wayne Stillings, with attachments, dated December 29, 2010

1. Deposition of Dr. James Coyle, without attachments, dated April 19, 2011
2. Schedule of Earnings of Employee for the period of September 30, 2007 through December 29, 2007

Nothing offered or admitted into evidence

Notes: 1) Some of the deposition exhibits were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence. Specifically, with regard to the Seven Day Rule objection made by Claimant's counsel in Dr. Coyle's deposition regarding his rating of disability, I find that Claimant's counsel continued with the deposition and conducted his full cross-examination, without ever asking to have the deposition reconvened after he had the chance to review the doctor's report containing the rating. In that respect, I find that Claimant's counsel effectively waived his Seven Day Rule objection. The objection is OVERRULED and the doctor's testimony is fully admitted into evidence in this case.

2) Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on June 7, 2012. No additional markings have been made since their admission on that date.

Based on a comprehensive review of the substantial evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, I find:

1) Claimant is a 43-year-old, former patient care associate (CNA), who last worked for St. John's Mercy Medical Center (Employer) in 2009. Claimant had worked for Employer from 2005 until her termination in 2009. She said that she was terminated because of limitations from her back injury. Her job duties for Employer included taking care of patients who had surgery or who were living in the facility, similar to living in a nursing home. Following her termination by Employer, Claimant did work part-time for a brief period of time in 2011 at Target, but stopped working after her stroke and has not returned.

2) Claimant testified that she had worked as a CNA at various facilities over the years from 1986 until 2009, except for two years when her husband died. Physically, she

said that when she worked at nursing homes, she had to do more lifting than when she worked for the hospital. Her work at the hospital involved more patient care, although there was still some lifting required as a part of her duties. 3) Leading up to the time of her January 5, 2008 work injury, Claimant testified that she worked 40 hours per week. She said that she was paid every two weeks at the rate of $\ 13.61 per hour. However, if she worked the evening or night shift, then she was paid 50 cents per hour more. 4) According to Employer's Schedule of Earnings of Employee (Exhibit 2), for the relevant 13 weeks prior to January 5, 2008, Claimant was paid the following:

5) Claimant offered into evidence copies of her payroll stubs from Employer for the period of 9/23/07-12/29/07 (Exhibit J). For the relevant pay periods prior to January 5, 2008, Claimant was paid the following:

The amounts paid per two-week period shown in the pay stubs, correspond exactly to the amounts shown on Employee's Wage Statement (Exhibit J). 6) On January 5, 2008, Claimant testified that she was working for Employer on the 3:00 p.m. to 11:00 p.m. shift. She said that somewhere between 7:00 and 8:00, she was transferring a patient from the wheelchair to the bed using a gait belt. She explained that she placed one of her legs between the patient's legs to move them to the bed, when the patient suddenly went backwards and she fell with the patient to the floor. Claimant testified that she reported the incident to her supervisor and sought medical treatment.

7) Claimant sought initial treatment at St. John's Mercy Medical Center (Exhibit A) on January 5, 2008. The record contains a description of Claimant transferring a patient, when the patient leaned the other way and she felt a pulling sensation in her back. Claimant reported pain radiating in the low back and up to the mid-back. Claimant was diagnosed with a low back sprain, given some medications and discharged.

8) Claimant next treated at St. John's Mercy Corporate Health (Exhibit B) starting on January 7, 2008. She provided a consistent history of the injury and was again diagnosed with a lumbar strain. She was provided with medications and also physical therapy, neither of which seemed to alleviate her complaints. Claimant was sent for a lumbar spine MRI on February 11, 2008, which showed a small disc herniation and annular fissure at L5-S1 causing mild right foraminal narrowing. In light of the MRI findings, Claimant was referred to an orthopedic spine specialist for further treatment recommendations.

9) At that point, Claimant came under the care of Dr. James Coyle (Exhibit C) on February 25, 2008. Dr. Coyle confirmed the diagnosis of a right L5-S1 lumbar disc herniation and he opined that her work injury was the prevailing factor in causing her current condition and need for treatment. He wanted to try to avoid surgery, so he recommended another course of physical therapy and a trial of epidural steroid injections. When he next examined her on April 2, 2008, Dr. Coyle noted that she had the physical therapy and the epidural steroid injections, but that did not alleviate her complaints, so he recommended surgery.

10) On April 18, 2008, Dr. James Coyle and Dr. Scott Westfall took Claimant to surgery at St. John's Mercy Medical Center (Exhibit A). They performed a right L5-S1 micro lumbar diskectomy; partial medial facetectomy; and anterior interbody arthrodesis of L5-S1 with Synthes machined allograft spacer, Infuse bone morphogenic protein, and Integra lumbosacral anterior tension band plate. This surgery was performed to treat Claimant's right paracentric and foraminal lumbar disc herniation at L5-S1 with right lower extremity radiculopathy, related to her January 5, 2008 work injury.

11) Claimant continued to follow up with Dr. Coyle (Exhibit C) after surgery. She showed significant improvement following surgery in her back and leg pain. By July 9, 2008, Dr. Coyle returned her to work with restrictions of no lifting greater than 15 pounds and no repetitive bending at the waist, as well as no pushing patient beds, wheelchairs or gurneys. Since she was doing well in physical therapy and tolerating work, he eased her lifting restriction to lifting up to 20 pounds as of September 17, 2008. On October 15, 2008, Dr. Coyle found that Claimant had normal strength and sensation in the lower extremities and 90 degrees of flexion at her waist. He found that the fusion was solid. He believed that she was at maximum medical improvement for her injury and treatment, but recommended a functional capacity evaluation to determine if she should have a permanent lifting restriction.

12) Claimant had the functional capacity evaluation at St. John's Sports \& Therapy (Exhibit E) on October 27, 2008. The therapist noted that Claimant displayed decreased abilities on floor to waist lifting, knee to waist lifting, stair climbing and ladder climbing. They believed that Claimant was able to perform work at the light work physical demand level. Since the nurse assistant job required medium work physical demand level, they questioned whether Claimant was physically able to perform the critical physical demands of the job. The report did note that Claimant was cooperative and demonstrated consistent performance, such that they believed the test results were reliable.

13) In a final discharge instruction note from Dr. Coyle (Exhibit C) dated November 5, 2008, Dr. Coyle released Claimant with permanent restrictions of no lifting greater than 20 pounds from floor to waist or 30 pounds from knee to waist.

14) In a letter dated November 21, 2008 (Exhibit I), Claimant was notified by Employer that as a result of her permanent restrictions issued by Dr. Coyle, she was unable to perform the essential functions of her job, and her department had no other positions that fall within those restrictions. Employer gave her until January 9, 2009 to attempt to find a position in a different department to which she could transfer, or else her employment with Employer would terminate on that date. Based on the subsequent correspondence between Employer and Claimant (Exhibit I), Claimant attempted to find other work with Employer in that timeframe, but was unable to do so. Therefore, Claimant was terminated by Employer on January 9, 2009.

15) Claimant testified that six months after her initial release by Dr. Coyle, she returned to him and received another course of physical therapy. However, since her release, she has had no other medical treatment for her low back.

16) In connection with this injury, Employer paid $\ 92,423.72 in medical benefits. Employer also paid Claimant temporary total disability (TTD) benefits in the amount of $\ 3,986.43, representing a period of time of $122 / 7$ weeks.

17) Claimant testified that being terminated had a profound impact on her. She said that working was all she knew since she was 16 years old. She testified that she developed depression. She said that she would lock herself in her room, keep to herself and cry all the time. She said that she sought treatment, including medications and counseling, through her personal medical doctor, Dr. Yumara. Claimant did not think the medications helped. She thought the counseling helped at the time, but then the symptoms would just come back.

18) In terms of her current complaints, which she relates to the January 5, 2008 work injury, Claimant testified that she still has sharp pain on the lower right side of her back. She said that the intensity changes, from an 8-9 out of 10 at its worst (3-4 times per week) to a 6 out of 10 at its best. Claimant reported continued right leg radiating pain from her right hip to her foot, as well as numbness and tingling in the right big toe. She noted that the right leg complaints did go away after her surgery, but they returned approximately two years ago. She reported stiffness and said that she

continues to take 800 mg of ibuprofen 3-4 times per day for her pain. Claimant reported limitations because of her low back of no lifting over 20 pounds, no bending at the waist, difficulty standing for more than 25 minutes before getting shooting pain, difficulty walking more than 40 feet, the inability to sit for more than 35 minutes without standing up or repositioning herself, and the inability to drive long distances. Additionally, Claimant reported that she keeps to herself and cries a lot. She said that she does not feel like she wants to do anything, and then, even if she does feel like doing something, she is unable to because of no income.

19) Claimant denied having any other low back injuries since 2008 and also denied having any other subsequent injuries that contribute to her depression. However, she did have a stroke on November 8, 2011 and so she has to use a cane now to help with walking.

20) In terms of activities, Claimant testified that she is able to perform some light cleaning, but no laundry or yard work. She said that she cannot roller skate or wear high heels. She cannot stay out long, like for shopping. She said that bending, stooping, squatting, kneeling and climbing stairs all cause pain.

21) Prior to her January 5, 2008 work injury, Claimant sustained injuries to her left shoulder that resulted in left shoulder disability.

22) In December 1995, Claimant slipped and fell on a wet floor, resulting in a left shoulder injury. Medical treatment records from Memorial Hospital (Exhibit H) confirm that on April 18, 1996, Dr. Lawrence Stein performed a diagnostic and surgical arthroscopy of the left shoulder to treat Claimant's partial tear of the rotator cuff.

23) The records of the Illinois Workers' Compensation Commission (Exhibit L) show, that although the original file was destroyed, according to their computer printouts, Claimant received a settlement for her left shoulder injury. She was found to have had a 17 % loss at the level of the left shoulder, as a result of that work injury and the subsequent surgical treatment.

24) Claimant sustained a second left shoulder work injury in 2006, while working for Employer. She said that she was pulling a resident up in bed, when she reinjured or sprained the left shoulder. Medical treatment records from Unity Corporate Health (Exhibit F) document the conservative treatment, medications and physical therapy, that she received for her left shoulder following this reinjury at work. An MRI of the left shoulder was negative and she was diagnosed with a left shoulder strain. She was eventually referred to Dr. John Tessier at Mid County Orthopaedic Surgery and Sports Medicine (Exhibit G) because of her ongoing complaints. He provided a couple of cortisone injections to the left shoulder and continued her conservative care.

25) Claimant and Employer resolved their portion of the June 29, 2006 injury (Injury Number 06-059220) by Stipulation for Compromise Settlement (Exhibit K) for the

payment of $\ 5,500.00, or approximately 6.7 % permanent partial disability of the left shoulder. This Stipulation was approved by Administrative Law Judge John H. Percy on July 18, 2007.

26) Claimant testified that leading up to the January 5, 2008 work injury, she had continued problems and complaints with the left shoulder. She described pain and discomfort in the left shoulder, which occasionally became a sharp, throbbing pain. She said that lifting, reaching and overhead work was difficult. Pulling something heavy would sometimes bring on the pain. She admitted that she had to get help from co-workers for activities such as pulling residents up in bed or putting them in bed, because of the left shoulder.

27) Claimant testified that as a result of the combination of the pre-existing left shoulder and primary low back injury disabilities, she had more restrictions and more problems with activities such as lifting.

28) The deposition of Dr. David Volarich (Exhibit M) was taken on October 21, 2010 by Claimant to make his opinions in this case admissible at trial. Dr. Volarich is an osteopathic physician, board certified in occupational medicine, nuclear medicine and as an independent medical examiner. He examined Claimant on one occasion, April 1, 2009, at the request of her attorney and issued his report on that same date. He provided no medical treatment to Claimant. Dr. Volarich had a consistent history of the work injury, reviewed the medical treatment records and performed a physical examination of Claimant. Claimant reported continued low back pain, but denied any radiating pain. She reported that she could perform limited bending, twisting, pushing and pulling. She also reported a consistent history of the prior left shoulder injuries and the problems she had as a result of her left shoulder. Physical examination revealed normal strength and sensory examinations, with some lost range of motion in the low back, a diminished right Achilles reflex, a low grade trigger point and normal straight leg raise test. Medically causally related to the January 5, 2008 work injury, Dr. Volarich diagnosed a herniated nucleus pulposus at L5-S1 with an annular tear, status post posterior discectomy and medial facetectomy followed by anterior lumbar fusion with instrumentation at L5-S1.

29) Dr. Volarich opined that Claimant sustained 40 % permanent partial disability of the body as a whole referable to the lumbosacral spine, as a result of the January 5, 2008 work injury and subsequent treatment and surgery. He opined that she had a preexisting disability of 20 % of the left shoulder, prior to the January 5, 2008 injury. He opined that the combination of her disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be added. He also opined that the disabilities represented a hindrance or obstacle to employment or re-employment. Dr. Volarich further opined that she would require ongoing care for her pain syndrome including such modalities as medications, physical therapy and similar treatments. He provided restrictions and limitations, under which he believed she was capable of returning to work. He made no reference to findings on physical examination, complaints, diagnoses, or any need for further treatment or evaluation for any mental condition, including depression. In

fact, on cross-examination, Dr. Volarich admitted that at the time he saw her, she did not appear depressed to him.

30) The deposition of Dr. Wayne Stillings (Exhibit N) was taken on December 29, 2010 by Claimant to make his opinions in this case admissible at trial. Dr. Stillings is a board certified psychiatrist. He examined Claimant on one occasion, March 11, 2010, at the request of her attorney and issued his report on that same date. He provided no treatment to Claimant in this case. In addition to his examination of Claimant, he also reviewed her medical treatment records, but there were no records documenting any psychiatric or mental treatment. She reported having a lot of back pain, crying all the time, feeling depressed since her work injury and experiencing significant and excessive generalized anxiety. Claimant denied any prior mental healthcare and denied previously taking any psychotropic medications, but admitted a past history of her brother being shot and killed in 1993 and her husband dying in 1996 after suffering burns from rescuing a neighbor boy from a house fire. She admitted that she still grieves his loss and did not work for two years after his death due to disabling personal grief. In his mental status examination, he noted that her mood was very clinically depressed, she had slight psychomotor retardation, crying and hand tremors. He administered tests including the MMPI-2 and the MCMI-III.

31) Based on all of this information, Dr. Stillings diagnosed a pre-existing parent-child relational problem, partner relational problem and personality disorder, as well as a mood disorder, anxiety disorder and pain disorder all related to the January 5, 2008 work injury. Related to the January 5, 2008 work injury, Dr. Stillings opined that Claimant had permanent partial disabilities of 15 % of the body as a whole referable to the mood disorder, 15 % of the body as a whole referable to the pain disorder and 15 % of the body as a whole referable to the anxiety disorder. He opined that she had further pre-existing permanent partial disabilities of 5 % of the body as a whole referable to the parent-child relational problem, 5 % of the body as a whole referable to the partner relational problems and 5 % of the body as a whole referable to the personality disorder. He further opined that she was in need of open-ended psychiatric treatment to prevent deterioration in her clinical psychiatric condition, including medications and doctors' visits, causally related to the January 2008 work injury.

32) Dr. Stillings testified that Claimant was a hard worker and enjoyed her job for Employer, so he believed it would be an emotionally traumatic event for her to be terminated because she was no longer physically capable of doing the job. He acknowledged that it is the type of event that could contribute significantly to anxiety and depression in an individual. On cross-examination, Dr. Stillings was challenged extensively about the self-reported ratings she gave on the amount of depression and anxiety that she was experiencing. He explained that her responses, he believed, were supported by the findings on the MMPI-2.

33) The deposition of Dr. James Coyle (Exhibit 1) was taken on April 19, 2011 by Employer to make his opinions in this case admissible at trial. Although the deposition transcript referenced some exhibits that were marked and allegedly

attached to the deposition at the time it was taken, there were no attached exhibits provided to the court along with the transcript. Dr. Coyle examined and treated Claimant on numerous occasions at the request of Employer, including providing her low back surgery, following her injury at work on January 5, 2008. Dr. Coyle testified consistent with the findings and opinions from his various reports described above. In addition to the reports described above, Dr. Coyle confirmed that Claimant returned to see him in May 2009 for evaluation of a new onset of back pain when she was doing housework and caring for an 11-year-old daughter. He recommended a brief period of therapy and medications, but he was uncertain if she obtained the treatment he had recommended. He noted that her myofascial pain at that time was not due to recurrent problems at the L5-S1 level, so it was not related to her work injury. He rated her as having 20 % permanent partial disability of the body as a whole based on her January 5, 2008 work injury and the need for surgery.

34) On cross-examination, Claimant admitted that she had had some traumatic episodes prior to her 2008 work injury. She admitted that her brother and his fiancée were killed when someone broke into their house and killed them. She also admitted that she took some time off work after her husband passed away. She confirmed that she never sought any treatment for depression back then because she said that she had a job and schooling to go back to, but she does not have that anymore. Claimant testified that she currently receives Social Security disability.

35) During Claimant's testimony at the hearing, I observed that Claimant sat fairly still for approximately one hour without any real signs of shifting or any outward signs of discomfort.

Based on a comprehensive review of the substantial evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, and based upon the applicable laws of the State of Missouri, I find:

There is no dispute in this case and the evidence clearly shows that Claimant sustained an accidental injury at work on January 5, 2008, resulting in an injury to her low back. I find that she was working as a patient care associate for Employer and injured her low back and body as a whole, when she and a patient fell to the floor as she was transferring the patient from a wheelchair to the bed. I find that Claimant sustained a herniated nucleus pulposus at L5-S1 with an annular tear, status post posterior discectomy and medial facetectomy followed by anterior lumbar fusion with instrumentation at L5-S1. I further find that her low back injury and subsequent medical treatment and surgery, were all medically causally related to her work accident on January 5, 2008.

In addition to her low back injury, based on the report and testimony of Dr. Stillings, as well as based on Claimant's own testimony, she has alleged a psychiatric component to her case. While it is clear from Employer's cross-examination of Dr. Stillings that Employer questions his

opinions on the diagnoses and the nature and extent of Claimant's psychiatric disability, it is also readily apparent from the record of evidence that Employer submitted no psychiatric evidence or opinions of its own to contest Dr. Stillings' opinions and findings. In addition to submitting no contrary evidence, Employer also never made medical causation an issue in this case at the time of trial. Therefore, the only qualified psychiatric expert evidence in the record is from Dr. Stillings and that uncontroverted testimony medically causally relates Claimant's mood disorder, anxiety disorder and pain disorder to the January 5, 2008 work injury.

Claimant's average weekly wage, and the applicable rates of compensation, must be calculated under Mo. Rev. Stat. § 287.250 (2005). Case law dictates that in applying this section, you start with subsection 1 of $\S 287.250 .1$ and move numerically through the 7 numbered subsections until you find the one that applies to the facts of the employment situation at issue in the case.

I find that since wages were not fixed by the week, the month, or the year, the first three subsections are inapplicable to this case. Since the wages were fixed by the hour, I find that subsection 4 applies. In order to calculate the average weekly wage, the wages earned by Claimant from Employer in the last 13 weeks immediately preceding the week in which the injury occurred, are added together and divided by 13. The absence of five regular or scheduled workdays, even if not in the same calendar week, shall be considered an absence for a calendar week. That week is then thrown out and the remaining balance is divided by the lower number of weeks to ascertain the appropriate average weekly wage.

If after trying to apply these various subsections to the facts of the case, a fair and just average weekly wage cannot be determined, then according to Mo. Rev. Stat. § 287.250.4 (2005), the division or commission may determine the average weekly wage in such manner and by such method as will fairly compute employee's average weekly wage.

In reviewing the payroll stubs, Employer's summary wage statement and Claimant's testimony on this issue, it is clear that for some unknown reason there is a frank discrepancy between the numbers contained on Employer's summary wage statement and the numbers obtained by merely adding up the wages documented on Claimant's payroll stubs. Since Employer's wage statement should just be a summary of the actual wages Claimant earned per week, one should be able to simply add the two weeks together from the wage statement to come up with the amount Claimant was actually paid on her check every two weeks for the same period. However, that is not the case. Somehow, in comparing these documents, Employer's documented wages are invariably less than the actual wages Claimant earned, according to her payroll stubs. Therefore, I find that I cannot rely on Employer's summary wage statement, and instead I will rely on the wages actually documented on Claimant's payroll stubs for the calculation of her average weekly wage and rates of compensation.

Since I cannot rely on Employer's summary wage statement and instead will rely on Claimant's payroll stubs, and since Claimant was paid in two-week increments, it is not clear on

the face of the payroll stubs how many hours and how much of the wages apply to which week worked in that two-week period. Therefore, in trying to determine the wages for the 13 weeks prior to the date of injury, it is impossible to fairly and accurately determine which hours and wages apply to week 13 as opposed to week 14 , when considering that period of time prior to the accident.

Therefore, under Section 287.250 .4 in order to accurately and fairly determine Claimant's average weekly wage in this case, I find that it is appropriate to include all 14 weeks' worth of wages prior to the date of injury and divide the total by 14 , as opposed to 13 , to determine the average weekly wage and rates of compensation in this case.

Adding together the full 14 weeks of wages equals $\ 7,139.28. Dividing that total by 14 equals an average weekly wage of $\ 509.94. Multiplying the average weekly wage of $\ 509.94 by $2 / 3$ gives the appropriate rate of compensation in this case for total disability and permanent partial disability benefits of $\ 339.96.

Therefore, I find that Claimant's appropriate average weekly wage is $\ 509.94 and her appropriate rate of compensation for total disability and permanent partial disability benefits is $\ 339.96.

Under Mo. Rev. Stat. § 287.140.1 (2005), "the employee shall receive and the employer shall provide such medical, surgical, chiropractic and hospital treatment...as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury."

Claimant bears the burden of proof on all essential elements of her Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. Id. at 199.

Just as Claimant must prove all of the other material elements of her claim, the burden is also on her to prove entitlement to future medical treatment. Dean v. St. Luke's Hospital, 936 S.W.2d 601, 603 (Mo. App. 1997) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). Claimant is entitled to an award of future medical treatment if she shows by a reasonable probability that future medical treatment is needed to cure and relieve the effects of the injury. Concepcion v. Lear Corporation, 173 S.W.3d 368, 372 (Mo. App. 2005).

With regard to the future medical issue, it is clear to me that Claimant is seeking and Employer is contesting Claimant's eligibility to receive, future medical treatment, not only for her low back condition, but also for her psychiatric condition. Although medical causation was not specifically put at issue, whether or not her psychiatric conditions and her continued low back problems are medically causally related to the January 5, 2008 work injury, is indeed a threshold

issue that must be decided before determining whether any future medical treatment is needed and/or appropriately part of this Claim.

Having extensively reviewed the medical evidence and testimony in this case, I find that Claimant's continued and ongoing low back problems and her psychiatric conditions (mood disorder, pain disorder and anxiety disorder), are medically causally related to Claimant's injury at work for Employer on January 5, 2008.

In support of her request for additional future medical treatment, Claimant has submitted the reports and testimony of Drs. Volarich and Stillings. Dr. Volarich opined that Claimant would require ongoing care for her pain syndrome including such modalities as medications, physical therapy and similar treatments. Dr. Stillings similarly opined that she was in need of open-ended psychiatric treatment to prevent deterioration in her clinical psychiatric condition, including medications and doctors' visits, causally related to the January 2008 work injury. In addition to these medical opinions, Claimant testified that she is, in fact, continuing to take medications, ibuprofen, to treat her ongoing low back problems. She noted that she has sought psychiatric counseling and medications to also treat her psychiatric issues.

The main points raised by Employer regarding their belief that no future medical treatment is needed in this case, is that both Drs. Coyle and Volarich placed Claimant at maximum medical improvement for this work injury, and that Dr. Coyle did not believe her subsequent onset of low back problems for which she saw him in 2009 was related to the L5-S1 level. While I appreciate Employer's point on Claimant having reached maximum medical improvement in this case, I would also note that reaching maximum medical improvement does not eliminate the possibility that one is entitled to future medical treatment. I would also note that while Employer has specifically presented arguments at trial and after on Claimant's entitlement to future medical treatment for her low back, Employer has presented no arguments and no evidence to contest Claimant's allegation that she is entitled to future medical treatment for her psychiatric conditions (mood disorder, pain disorder and anxiety disorder).

Based on my review of the medical evidence and testimony, I find Claimant's testimony regarding her complaints, involving both her low back and psychiatric conditions, is credible. While I acknowledge that as of the time of Dr. Volarich's examination, he was unable to detect any signs of depression, I also note that she was, at that time, still considering her ability to get back to work and pursue further education. I find that it was not until later, when she was unable to do either of those things, that the extent of her condition struck her and the depression and anxiety found by Dr. Stillings became apparent.

Additionally, I find that the medical opinions and testimony from Drs. Volarich and Stillings are competent, credible and reliable evidence, supporting an award of future medical in this case. Both of these physicians agree that Claimant needs ongoing further treatment for her pain disorder related to her work injury. When Dr. Coyle last examined Claimant in 2009, even he agreed that she needed some additional medications and physical therapy, but he suggested that her myofascial pain at that time was not due to recurrent problems at the L5-S1 level, so it was not related to her work injury. He suggests that if her treatment is not specifically related to that same level of the low back, then it is not related to the injury. However, Claimant never had low back problems prior to this work injury, and the invasive surgery he performed to address the

L5-S1 level, certainly impacted more of her low back than just the one disc level. Besides, the standard is not whether the suggested treatment is specifically medically causally related to the accident, but instead, whether the suggested treatment will cure and relieve Claimant of the effects of the work injury.

Therefore, on the issue of the need for future medical treatment, since I have already found, based on Drs. Stillings and Volarich's credible opinions, as well as Claimant's credible testimony, that Claimant's ongoing low back complaints and psychiatric conditions (mood disorder, pain disorder and anxiety disorder) were related to the January 5, 2008 work injury, it is clear that Claimant will require ongoing future medical treatment to attempt to deal with the significant residual effects of her injury.

I find that Claimant has met her burden of proving the need for additional future medical treatment for her low back and psychiatric (mood disorder, pain disorder and anxiety disorder) conditions related to this January 5, 2008 work injury. Further, I direct Employer to provide continued and ongoing future medical care for Claimant's low back and psychiatric (mood disorder, pain disorder and anxiety disorder) conditions, including but not limited to medications, medication management (doctors' visits), physical therapy, counseling and any other testing, treatment or evaluation that the treating doctors deem necessary to cure and relieve Claimant of the effects of the injury.

Pursuant to Mo. Rev. Stat. § 287.170 (2005), an injured employee is entitled to receive temporary total disability compensation benefits for not more than 400 weeks during the continuance of such disability at the weekly rate of compensation in effect for the date of injury for which the claim is made.

The parties have stipulated that Employer paid $\ 3,986.43, for $122 / 7$ weeks of temporary total disability (TTD) benefits in this case, but they dispute that the accurate rate was used by Employer for the payment of this benefit. Claimant alleges that she was underpaid TTD based on Employer using an inappropriately low rate for the payment of this benefit.

Using the appropriate rate of compensation for temporary total disability (TTD) benefits of $\ 339.96 per week, Claimant's $122 / 7 weeks of TTD should have amounted to a payment of \ 4,176.65. Since Employer only paid TTD benefits totaling $\ 3,986.43, I find that Employer did underpay Claimant's TTD benefits in this case.

Accordingly, I find that Employer is responsible for the payment of an additional $\ 190.22 in temporary total disability benefits, to make up the difference between what they should have paid and what they actually paid, based on their use of the incorrect rate.

Considering the date of the injury, it is important to note that the new statutory provisions are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

Under Mo. Rev. Stat. § 287.190.6 (1) (2005), "'permanent partial disability' means a disability that is permanent in nature and partial in degree..." The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. Id. at 704. Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the testimony of the Claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975)(citations omitted).

Additionally, under the 2005 amendments to the Workers' Compensation Law, the Legislature added further provisions that have an impact on the determination of the nature and extent of permanent partial disability. Mo. Rev. Stat. § 287.190.6 (2) (2005) states,

Permanent partial disability... shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

Therefore, according to the terms of this statute, it is incumbent upon the claimant to have a medical opinion from a physician that demonstrates and certifies claimant's permanent partial disability within a reasonable degree of medical certainty. Further, if there are conflicting opinions from physicians in a given case, then objective medical findings must prevail over subjective findings.

In awarding permanent partial disability for this injury under these new statutory provisions, it is, thus, necessary to deal with each of these sections. Considering the competent and substantial evidence listed above, I find that the medical opinions from Dr. Volarich, Dr. Coyle and Dr. Stillings all demonstrate and certify, within a reasonable degree of medical certainty, that Claimant sustained permanent partial disability as a result of the work-related injury on January 5, 2008.

Accordingly, I find that Claimant has successfully met her burden of proof to show that Employer is responsible for the payment of permanent partial disability related to the January 5, 2008 injury.

With regard to the low back portion of the case, Dr. Volarich rated Claimant as having 40 % permanent partial disability of the body as a whole referable to the lumbosacral spine, on account of the herniated nucleus pulposus at L5-S1 with an annular tear, status post posterior discectomy and medial facetectomy followed by anterior lumbar fusion with instrumentation at L5-S1 from her January 5, 2008 work injury. Dr. Coyle rated Claimant as having 20\% permanent partial disability of the body as a whole referable to the low back on account of her work injury and subsequent surgery. In reaching my opinion on the amount of her permanent partial disability, I am mindful of the fact that even though Dr. Coyle only addressed one level of her lumbar spine, he did so with a fusion by both a posterior and anterior approach. I am also mindful of the fact that the permanent restrictions (limitations) that Dr. Coyle placed on her as a result of this injury and surgery eliminated her ability to continue to work as a patient care associate (CNA) for Employer. Based on all of these factors, I find that Claimant has 32.5\% permanent partial disability of the body as a whole referable to the low back, attributable to the January 5, 2008 work injury and subsequent surgery.

In addition to the low back disability described above, I find that Dr. Stillings also assessed permanent partial disability for Claimant's psychiatric (mood disorder, pain disorder and anxiety disorder) condition in this case. I have previously found that Employer offered no contrary evidence to dispute the findings and opinions of Dr. Stillings, nor did Employer make medical causation an issue in this case referable to these psychiatric diagnoses. Based on these diagnoses, and based on Claimant's credible description of her ongoing problems with depression and anxiety, while I do not necessarily agree with his numerical assessment of Claimant's permanent partial disability in this case, I do agree with Dr. Stillings that Claimant has some amount of permanent partial disability related to her psychiatric diagnoses from this January 5, 2008 injury. Therefore, on the basis of all of the competent, credible and reliable evidence in the record, I find that Claimant has 12.5 % permanent partial disability of the body as a whole referable to her psychiatric (mood disorder, pain disorder and anxiety disorder) conditions.

Accordingly, I find that Employer is responsible for the payment of 180 weeks of permanent partial disability benefits related to this compensable accident at work on January 5, 2008 .

In cases such as this one where the Second Injury Fund is involved, we must also look to Mo. Rev. Stat. § 287.220 (2005) for the appropriate apportionment of benefits under the statute. In order to recover from the Fund, Claimant must prove that she had a pre-existing permanent partial disability that existed at the time of the primary injury. Then to have a valid Fund claim, that pre-existing permanent partial disability must combine with the primary disability in one of two ways. First, the disabilities combine to create permanent total disability, or second, the disabilities combine to create a greater overall disability than the simple sum of the disabilities when added together.

In the second (permanent partial disability) combination scenario, pursuant to Mo. Rev. Stat. § 287.220.1 (2005), the disabilities must also meet certain thresholds before liability against the Second Injury Fund is invoked and they must be of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment should employee become unemployed. Messex v. Sachs Electric Co., 989 S.W.2d 206 (Mo. App. E.D. 1999) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The pre-existing disability and the subsequent compensable injury each must result in a minimum of 12.5 % permanent partial disability of the body as a whole ( 50 weeks) or 15 % permanent partial disability of a major extremity. These thresholds are not applicable in permanent total disability cases.

Having already established the nature and extent of the permanent partial disability attributable to the primary injury against Employer, it is now appropriate to determine whether or not Claimant has successfully met her burden of proving Second Injury Fund liability for permanent partial disability based on the combination of her primary (January 5, 2008) injury and any pre-existing permanent partial disability. Having thoroughly considered all of the competent and credible evidence in the record, I find that Claimant has met her burden of proof to show an entitlement to a permanent partial disability award against the Second Injury Fund.

Claimant has alleged a pre-existing disability to the left shoulder that potentially combines with the disability from the primary 2008 body as a whole injury to trigger Second Injury Fund liability. In order for the alleged pre-existing disability to actually trigger Second Injury Fund liability, it must meet the appropriate threshold of 12.5 % permanent partial disability of the body as a whole ( 50 weeks) or 15 % permanent partial disability of a major extremity and it must be found to have been a hindrance or obstacle to employment or re-employment, should Claimant become unemployed.

With regard to Claimant's pre-existing injury/condition, I find Claimant's testimony and her statements in the medical reports credible regarding the continued complaints and problems she had, and the effect the pre-existing condition had on her ability to work, prior to January 5, 2008. I also found medical treatment records and reports in evidence documenting the treatment Claimant received for this left shoulder condition/injury prior to the accidental work injury on January 5, 2008.

I further find Dr. Volarich's diagnosis and opinions on the pre-existing left shoulder injury/condition to be competent, credible and reliable evidence. Dr. Volarich rated Claimant as having pre-existing permanent partial disability on account of the pre-existing left shoulder injury/condition. Dr. Volarich further credibly opined that the pre-existing disability combined with the disability from the January 5, 2008 injury to create disability that is significantly greater than their simple sum and so a loading factor should be added. He also credibly opined that the disabilities represented a hindrance or obstacle to employment or re-employment, should Claimant become unemployed.

Based on the totality of the evidence in the record, as described above, and pursuant to the stipulation of the parties at the start of the hearing, I find that Claimant had pre-existing permanent partial disability of 20 % of the left shoulder.

Given the applicable statutory thresholds of 15 % of a major extremity or 12.5 % of the body as a whole ( 50 weeks), I find that the primary low back and psychiatric injuries/conditions and the pre-existing left shoulder injury/condition meet the statutory thresholds to trigger Second Injury Fund liability. I further find that the pre-existing left shoulder injury/condition was of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. Finally, consistent with Dr. Volarich's opinion on combination, I find that the pre-existing and primary injury disabilities combine to create disability that is significantly greater than the simple sum. I, therefore, find that Claimant is entitled to receive 22.64 weeks of compensation from the Second Injury Fund.

In order to calculate the amount of this award from the Second Injury Fund, I added together all of the qualifying disabilities and assessed a loading factor of 10 % [ 32.5 % of the body as a whole referable to the low back ( 130 weeks) +12.5 % of the body as a whole referable to psychiatric conditions ( 50 weeks) +20 % of the left shoulder ( 46.4 weeks) $=226.4$ total weeks of compensation times the 10 % loading factor $=22.64$ weeks from the Fund]. I arrived at the 10 % loading factor based on the credible evidence submitted at trial and the stipulation of the parties at the time of trial.

Accordingly, the Second Injury Fund is responsible for the payment of 22.64 weeks of permanent partial disability pursuant to this award.

Claimant sustained an accidental injury at work on January 5, 2008, resulting in an injury to her low back. She was working as a patient care associate for Employer and injured her low back and body as a whole, when she and a patient fell to the floor as she was transferring the patient from a wheelchair to the bed. Claimant sustained a herniated nucleus pulposus at L5-S1 with an annular tear, status post posterior discectomy and medial facetectomy followed by anterior lumbar fusion with instrumentation at L5-S1. Her low back injury and subsequent medical treatment and surgery, were all medically causally related to her work accident on January 5, 2008. Claimant also sustained psychiatric conditions (mood disorder, anxiety disorder and pain disorder) medically causally related to the January 5, 2008 work injury. Claimant's appropriate average weekly wage is $\ 509.94 and her appropriate rate of compensation for total disability and permanent partial disability benefits is $\ 339.96.

Employer is to provide continued and ongoing future medical care for Claimant's low back and psychiatric (mood disorder, pain disorder and anxiety disorder) conditions, including but not limited to medications, medication management (doctors' visits), physical therapy, counseling and any other testing, treatment or evaluation that the treating doctors deem necessary to cure and relieve Claimant of the effects of the injury. Employer is responsible for the payment of an additional $\ 190.22 in temporary total disability benefits, to make up the difference between what they should have paid and what they actually paid, based on their use of the incorrect rate. Claimant has 32.5 % permanent partial disability of the body as a whole referable to the low back and 12.5 % permanent partial disability of the body as a whole referable to her psychiatric (mood disorder, pain disorder and anxiety disorder) conditions, related to the January 5, 2008 injury at work.

Claimant had pre-existing permanent partial disability of 20 % of the left shoulder. Based on the applicable thresholds, the primary low back and psychiatric injuries/conditions and the pre-existing left shoulder injury/condition meet the statutory thresholds to trigger Second Injury Fund liability. Claimant also met her burden of proof to show that the pre-existing left shoulder injury/condition was of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. The Second Injury Fund is to pay 22.64 weeks of permanent partial disability benefits.

Compensation awarded is subject to a lien in the amount of 25 % of all payments in favor of Mr. Gary W. Kullmann for necessary legal services.

Made by: $\qquad$

JOHN K. OTTENAD

Administrative Law Judge

Division of Workers' Compensation