Jacqueline Brown v. Massman Construction Co.

With regard to the FCE performed on March 20, 2012, the evaluator noted employee continued to suffer high pain levels as well as swelling that now spread into the forearm. The evaluator found mild improvement in employee's range of motion at the wrist, but noted that all motions were painful. Employee continued to have problems with fine dexterity movements such as pinching tasks and fingering small objects. The evaluator indicated that employee was functioning at the medium level, but again, this was assuming a work schedule of four hours per day/four days per week.

Turning to the records generated during employee's physical therapy, we note that during the final session on June 14, 2012, employee experienced frequent cramping of her right upper extremity, complained of pain at a level of 7 out of 10, engaged in guarding of the right upper extremity due to pain, and experienced swelling of the forearm, wrists, and fingers. Grip testing caused severe pain, as did making a fist. Employee continued to complain that her pain limited her to 4 hours of sleep per night and interfered with her activities of daily living, including her ability to manage her own personal hygiene.

These FCE and physical therapy records suggest (and we so find) that employee was fully cooperative and credible. Nothing in these records supports a finding that employee is capable of full-time work activity at any level. Employee's obvious discomfort, objective evidence of injury (such as swelling) and physical limitations would almost certainly dissuade any employer from considering employee for employment.

The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.

Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011)(citation omitted).

We find that employee reached maximum medical improvement on July 19, 2012, when the treating physician, Dr. McAllister, released her from his care. We find that employee is permanently and totally disabled as a result of the last injury considered in isolation. Employer is liable for permanent total disability benefits.

Because we have determined that employee is permanently and totally disabled as a result of the last injury considered in isolation, there is no Second Injury Fund liability in this matter. See ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007).

We note that the administrative law judge states, in the first paragraph on page 3 of his award, "Employer and its insurer previously settled their risk of liability." This appears to be a clerical error; accordingly, we correct it by deleting the quoted sentence from the award.

We modify the award of the administrative law judge as to the issue of nature and extent of permanent disability resulting from the work injury. Beginning July 19, 2012,

Employer is liable for weekly payments of permanent total disability benefits at the stipulated rate of $\ 811.73. The weekly payments shall continue thereafter for employee's lifetime, or until modified by law.

Per stipulation of the parties, employer is entitled to a credit of $\ 4,000.00 for an advance payment against permanency it made to employee in October 2012, as well as a credit for its overpayment of temporary total disability benefits in the amount of $\ 10,166.58, for a total credit of $\ 14,166.58.

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.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued May 30, 2013, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: August 22, 2011 (stipulated)
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 sustained shoulder injury while lifting walk boards for scaffolding erection.
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: right hand
14. Nature and extent of any permanent disability: 40 % PPD of right upper extremity ( 200 week level) plus 20 % PPD of the body referable to CRPS, plus 20 % multiplicity factor.
15. Compensation paid to-date for temporary disability: $\ 58,058.65
16. Value necessary medical aid paid to date by employer/insurer? $\ 50,321.62

1. Value necessary medical aid not furnished by employer/insurer? $\ 1737.49
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\$ 811.73 / \ 425.19
4. Method wages computation: Stipulation.

1. Amount of compensation payable:

Reimbursement of medical expenses

$\ 1,737.49

192 weeks PPD from Employer

$\ 81,636.48

1. Second Injury Fund liability: None

TOTAL:

$\ 83,373.97

1. Future requirements awarded: Yes (see narrative 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:

James Krispin

Employee: Jacqueline D. Brown

Department: N/A

Employer: Massman Construction Co.

Additional Party: Second Injury Fund

Insurer: Travelers Indemnity Co. of America

Hearing Date: February 25, 2013

Injury No.: 11-072556

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves severe right wrist fractures resulting to Claimant with the reported accident date of August 22, 2011 with allegations of synergistic disability against the Second Injury Fund ("SIF"). Employer and its insurer previously settled their risk of liability. Both parties are represented by counsel. There are several issues for trial. Claimant seeks permanent total disability benefits.

1. Claimant testified that she worked for Employer as an operating engineer who maintained equipment on a barge. She routinely worked 10-12 hours days, up to 60 hours per week, at full duty. She has been employed as an operating engineer for various companies since 1994.
2. Claimant testified that she was working on a barge on the reported accident date and, in the course of her work, she tripped on an air hose and fell, severely injuring her right wrist. She is right hand dominant.
3. Claimant underwent two surgeries to her wrist and never returned to the heavy work she had with Employer.
4. Claimant stated that although she had preexisting medical conditions, she had worked full duty with no hindrance to her employment leading up to this right arm injury. She testified that she had never turned down work, that her work was all heavy labor, and she had never requested help or accommodation at work for these medical conditions which predated the accident, including anxiety, diverticulitis and Barrett's esophagus, and low back injuries.
5. After her fall, Claimant was diagnosed with an impacted intra-articular distal radius fracture and ulnar styloid avulsion fracture. Surgery was recommended.

1. Dr. David Karges performed a closed reduction of the right distal radius on 08/22/11. On 08/29/11, Dr. John McAllister performed surgery (ORIF) on the right wrist.
2. Claimant saw Dr. William Frisella with ongoing pain complaints, and Dr. Frisella recommended pain medications and physical therapy.
3. Dr. McAllister saw Claimant on 09/1/11 and noted stiffness in fingers, difficulty sleeping, and was concerned for RSD. At a follow up appointment on 10/27/11, Claimant noted persistent wrist pain and numbness and burning in the medial nerve distribution. Dr. McAllister diagnosed complex regional pain syndrome, requested a nerve conduction study, and recommended further physical therapy.
4. Dr. Chad Shelton examined her on 11/08/11 for right upper extremity numbness, pain, and hypersensitivity. He administered a stellate ganglion block, which improved her symptoms. Two successive blocks were performed in December 2011 and January 2012.
5. A functional capacity evaluation (FCE) was performed in February 2012 which placed Claimant at the light-to-medium demand level of work. Claimant admitted she had not applied for any employment since her inability to return to her old job. Claimant is fully ambulatory, she drives an automobile, including her friend's pick-up truck and lives without assistance for the essentials of daily living.
6. Dr. McAllister noted in March 2012 that Claimant was unable to tighten her fist or straighten her fingers, and had ongoing finger problems and burning pain in the right upper extremity. On 04/18/12 Dr. McAllister took Claimant to surgery and removed the hardware from her right wrist, noted some improvement, and recommended work hardening. By May 2011 Claimant stopped work hardening and returned to hand therapy because of increased pain. On 07/19/12, Dr. McAllister repeated his diagnosis of complex regional pain syndrome and stated Claimant was not able to work in any significant capacity because she could not use her right hand reliably due to weak grip and pain with any balancing movement in addition to ongoing pain management needs.
7. Claimant testified that due to her complaints stemming from the 08/22/11 injury that she can no longer work, despite best efforts to return to work and ample motivation to do so. She states that she is always in pain, some days just in her right wrist and elbow, and in some days all the way through the shoulder. She now takes Nucynta, takes Percocet four times per day, takes Soma (a muscle relaxer), and uses a TENS unit, a heating pad, and Epsom salt soaks. She noted she has low energy throughout the day and must nap up to an hour twice per day.
8. Claimant testified that these complains caused her difficulty with personal care, having to substitute her non-dominant left hand to perform tasks, that she has difficulty with house hold tasks, that she avoids going out socially for fear of someone bumping her arm, and that she cannot do outdoor activities. Claimant ambulated freely into the courtroom in no apparent distress but for holding her right wrist/hand in a somewhat guarded position and carrying a pillow on which she rested her forearm during trial.

1. Mary Catherine Bloom testified on behalf of Claimant. Ms. Bloom has been friends with Claimant for 35 years, saw Claimant weekly leading up to the primary injury, and testified that she continues to see her on a regular basis. She stated that since the injury, Claimant has problems with dressing herself and seems depressed because of her arm problems.
2. Joseph Lee Calvin testified on behalf of Claimant. Mr. Calvin testified that he has been a co-worker of Claimant since 2001. He stated Claimant was a good worker, worked overtime frequently ( 6 day-10 hour per day schedules).
3. Bryan Alan Whitson testified on behalf of Claimant. Mr. Whitson stated that he was a friend of Claimant, had known her their whole lives, and that he saw her almost daily leading up to and after the primary injury. He testified that Claimant had difficulty sleeping.
4. Amanda Palmer, Claimant's daughter, testified on Claimant's behalf. She testified that leading up to and after the primary injury, she saw Claimant on at least a weekly basis. Ms. Palmer testified that since the primary injury she helps Claimant with some household chores and some personal care. She did not testify about any of the other health problems.

1. Claimant offered the deposition and narrative report of Dr. David Volarich as Exhibit N. Dr. Volaraich examined Claimant and reviewed the medical records for the reported injury. He opined that Claimant suffered from a 40 % permanent partial disability of the right upper extremity at the forearm ( 200 week level) due to the intra-articular distal radius fracture that required ORIF surgery and removal of hardware, in addition to an ulnar styloid fracture. He opined that she sustained an additional 20 % permanent partial disability of the body as a whole referable to the cervical/right shoulder girdle due to the complex regional pain syndrome (CRPS). Dr. Volarich did not assign any disability ratings to any of Claimant's preexisting medical conditions. He did not identify any hindrance or obstacle to employment based upon pre-existing conditions.
2. In his narrative report Dr. Volarich stated Claimant is "advised to follow-up with her personal physician for any additional medical care required in the future." He testified similarly. Dr. Volarich opined that Claimant would need ongoing care for the pain syndrome including narcotic medications, muscle relaxants, physical therapy and similar treatments. He recommended she avoid using the right arm in blind or awkward fashion, minimize repetitive motions, and to avoid impact and vibratory trauma to her hands. He also recommended she not handle any weights greater than 1 pound with the right arm alone, lifting no more than 5-10 pounds overall, and perform other activities relative to the right shoulder and elbow to tolerance.

1. Dr. Volarich's deposition was taken 10/26/12. He testified consistently with his report, and did not disagree with Dr. McAllister's opinion that Claimant was unable to work. Upon cross-examination from Employer's counsel, Dr. Volarich acknowledged that the only further treatment Claimant would need would be pain management and that he was not a specialist in this pain syndrome.
2. James M. England performed a vocational evaluation of Claimant at her attorney's request on 09/18/12. (Ex. O). He noted that she did not finish high school, had poor computer skills, and her primary work experience was as an operating engineer, having learned heavy equipment operation through on-the-job training. He noted that Claimant had been a physically active person, engaging in camping, canoeing, Zumba dance, and working out prior to the 08/22/11 injury. He noted that her job for Massman involved sitting, standing, walking, lifting 50-60 lbs, bending squatting, climbing, reaching, carrying, pushing, pulling, stooping and handling.
3. Mr. England opined that Claimant had no transferable job skills below a medium level of exertion. He noted that the use of those job skills would be negated by her lack of use of her right arm. (Ex. O) After review of the reports and restrictions noted by Dr. McAllister, Dr. Volarich, and Dr. Goldfarb, and his interview with Claimant about her functional status, Mr. England opined that Claimant would not be able to compete or sustain work in the open labor market and that she was unemployable based upon her disability from the 08/22/11 injury.
4. Dr. Charles Goldfarb performed an independent medical evaluation of Claimant on 10/08/2012, at the request of Employer/Insurer. (Ex. 1) Dr. Goldfarb took a history, performed a physical exam, reviewed radiology, and diagnosed Claimant with right wrist fracture and complex regional pain syndrome (CRPS). Dr. Goldfarb opined that Claimant had a 20 % permanent partial disability at the right wrist, that she could work light duty with a ten pound lifting restriction on the right hand, and to avoid climbing, vibratory tools, and limit repetitive activities.
5. Dr. Goldfarb was deposed on 01/31/13. (Ex. 1) Dr. Goldfarb deferred to a pain management doctor on the question of whether Claimant would need further active medical treatment, but indicated no further surgical intervention would be necessary. Dr. Goldfarb testified that CRPS generally declines in severity over time, and that he felt Claimant could work with his recommended activity restrictions. No pain management expert testified.
6. Kimberly Gee, a vocational consultant, performed a vocational evaluation of Claimant at the request of Employer/Insurer on October 3, 2012, and issued a report dated 11/07/12. (Ex. 2) Ms. Gee performed an interview of Claimant, reviewed the medical restrictions of the various doctors, particularly those of Dr. Volarich and Dr. Goldfarb, and performed a telephone survey of local employers. Ms. Gee opined in her report that Claimant could obtain and maintain full-time gainful employment based upon the restrictions noted by Dr. Volarich and Dr. Goldfarb, but she also acknowledged that if Dr. McAllister's statement that "she [Claimant] is unable to work" was true, Claimant might not be able to return to the workforce.

1. Ms. Gee's deposition was taken on 01/15/13. (Ex. 2) Ms. Gee admitted on cross-exam that she felt Claimant was genuine and truthful about her pain complaints and subjective limitations, that some employment might fit within a doctor's restrictions but not be within a person's functional limitations, and that if Claimant expressed her medical restrictions at a job interview not many employers would be willing to hire her. (Ex. 2, pp. 15-16, 21-22, 27-29) Ms. Gee also admitted that when she contacted potential employers for a labor survey, she discussed the activity restrictions set by Drs. Volarich and Goldfarb, but did not include the functional limitations (need for sleep during the day, loss of balance from frequent narcotics) that Claimant experienced.

Under the Missouri Workers' Compensation Act, "total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. §287.020.7 RSMo (2005). The test for permanent total disability is whether the employee is "competent to compete in the open labor market," i.e., unable to return to any "reasonable or normal employment." Higgins v. The Quaker Oats Co., 183 S.W.3d 264, 273 (Mo.App. W.D. 2005). The fact finder does not have to make his decision only upon testimony from physicians, but can make his findings from the entire evidence. Julian v. Consumers Markets, Inc., 882 S.W.2d 274, 275 (Mo.App. 1994).

Claimant presented an expert opinion report from Dr. Volarich whose notes parallel Claimant's trial testimony. He placed Claimant at maximum medical improvement and rated Claimant's injury herein as permanent partial disability with 40 percent of the right forearm (200 week level) and 20 percent of the body referable to the CRPS. (Exhibit N; Depo Ex. 2.) Dr. Volarich further suggested a loading factor for additional disability due to multiplicity. He did not mention "complete loss of use" as contemplated by the legislature in §287.190.2 RSMo (2005). He did not mention permanent total disability as provided in §287.200 RSMo (2005).

Dr. Volarich expressed these permanent partial disability opinions even though he expressly referenced Dr. McAllister's final treatment note which included his belief about Claimant's inability to work. Dr. McAllister's letter is dated July 19 and Dr. Volarich's forensic examination and report occurred on July 20. He did not change his permanent partial disability opinions at deposition. His enunciation of permanent partial disability percentages is consistent with $\S 287.190 .6(2)$ RSMo (2005).

Employer's expert, Dr. Goldfarb, similarly expressed a permanent partial disability opinion. Dr. Goldfarb gave an unrebutted opinion that CRPS symptoms usually dissipate over time. He agreed that ongoing pain management for CRPS symptoms was appropriate as needed. Dr. Goldfarb was asked about the value of repeated visits to a treating physician underlying a disability opinion versus that of a single visit underlying a forensic opinion to which, he explained, a bias absolutely develops along with the relationship between a doctor and a patient. He found value with the long-term view but reminded that the single examination affords a

greater objectivity by an examiner as measured by the clinical notes of the examination and an accompanying review of other information.

Despite Dr. McAllister's doubt about employment expressed in his July 2012 letter, he does not address the FCE placing Claimant at the light to medium work capacity, her ability to drive or that she is fully ambulatory. With these foundational deficits, any opinion gleaned from this letter must be carefully weighed for probative value.

Claimant ambulated freely into the courtroom. Claimant spoke clearly at trial. Claimant underwent a functional capacity examination (FCE) that measured her capability at light to medium duty. She admitted that she drives a car as needed including her friend's pick-up truck. Claimant has not treated since released by Dr. McAllister and seeks no specific treatment at this hearing (pain management is undisputed between the opposing experts). Claimant admits she has not sought employment since her release from treatment.

No testifying expert or treating physician refuted the functional capacity examination given Claimant that measured her capability at light to medium duty.

The testimony of James England that Claimant is unemployable on the open labor market is marked by some omissions in foundation. He repeats the belief of Dr. McAllister that Claimant is unable to work, but neither Mr. England nor Dr. McAllister address the FCE findings, or refute its methodology. Mr. England's single reference to the FCE in his narrative report fails to disclose the finding of light to medium capability found by the examiner. Mr. England did not address any employment possibilities, or the fact of Claimant not having sought any employment, apparently on the basis of narcotic drug therapy (this is unexplained regarding Claimant's admissions about operating motor vehicles). His report and direct testimony contrasts with the fact of Dr. Volarich giving significant partial disability percentages which, nevertheless, are significantly less than the "complete loss of use" contemplated at $\S 287.190 .2$ and the fact that Dr.Volarich's restrictions are confined to the one extremity. Dr. Volarich's report is consistent with Claimant being fully ambulatory and having full use of her other arm.

On cross-examination, Mr. England admitted Claimant has transferable skills for operating equipment at the medium level capacity of work. Claimant performed equipment operation and maintenance rather than simple manual tasks. This demonstrates knowledge and familiarity with various pieces of equipment and power systems. Nevertheless, this skill and experience is unaddressed by Mr. England. Also unaddressed by this witness is Claimant's employment search.

Separately, Dr. Goldfarb was asked if he would defer to "a vocational expert" regarding employability which, he said, he would do. He was not asked whether he would defer to Mr. England. This is an important point given Dr. Goldbarb's narrative statement that Claimant could and should return to work and the foundational deficits in Mr.England's testimony, i.e. no rebuttal of the FCE and lack of parallel to Claimant's physician's permanent partial disability ratings. Similarly Dr. Goldfarb was asked if he would defer to a pain management specialist for

specific therapies. However, Claimant never called a pain management expert witness. Dr. Goldfarb's own testimony on pain management and CRPS was instructive.

Employer's vocational expert, Ms. Gee, was more persuasive than Mr. England. She testified consistent with the unrebutted FCE and Claimant's noteworthy physical capability for full ambulation, driving and unimpaired left upper extremity.

Liability of the SIF was rendered moot by Claimant's admission and her physician expert's opinions.

Claimant offered evidence of expenses incurred from Dr. Shelton in the amount of $\ 880.00 and for prescription drugs in the amount of $\ 857.49. The parties stipulated to the amount and authentication of these alleged expenses. These amounts are allowed consistent with the testimony of the two physician experts herein.

Claimant places in issue whether Employer defends this matter frivolously. The Motion is not well-taken in this case. Employer tendered over $\ 100,000.00 in benefits herein to which Claimant stipulated. Employer called expert depositions and attended those of Claimant. Nothing in those transcripts suggests frivolousness of defense of merits or obstruction. Claimant asserts the withholding of a CTS release which preference/demand appears to have been abandoned many months ago and which procedure was not recommended by Claimant's own physician expert. Other irregularities asserted at trial, or by brief, appear to be subjects of expert opinion and/or appear to have been abandoned. Claimant did not seek the asserted treatments on her own for reasons that are not demonstrated in the evidence and must be presumed to be abandoned; she offers no evidence for reimbursement of such medical expenses incurred other than those amounts allowed above. Indeed, Employer stipulated much of the proof of those expenses. Difficulties of negotiation and trial are not contemplated by this penalty section.

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained 40 percent PPD of the right forearm and 20 percent PPD of the body referable to CRPS plus a twenty percent multiplicity factor. Claimant is also awarded reimbursement of medical expenses incurred in the amount of $\ 1737.49. Future medical treatment in the form of pain management is allowed as suggested by competent medical authority.

Date: $\qquad

Made by: \qquad

JOSEPH E. DENIGAN

Administrative Law Judge

Attest: \qquad$

Division of Workers' Compensation