Janice Ervin v. Health Management Associates

Employee had a low back condition that constituted a preexisting permanent partial disability as contemplated by $\S 287.220 .1$ RSMo. In particular, we do not believe employee's low back condition constituted a hindrance or obstacle to her employment before she sustained her 2004 elbow injury.

Employee offered no medical records to substantiate that she has a preexisting permanent partial disability of her back. Employee's testimony does not support a finding that employee's back condition was a hindrance to her employment or that employee's back condition was a permanent disability as of the date of the elbow injury. Employee could not remember if she received treatment for her back condition. Employee does not think she ever missed time from work because of her back condition. Employee's descriptions of her back condition included that "from time-to-time it hurt" and that she had problems with her back "a little bit off and on" at which times her back would "just hurt and flare up."

As regards her low back surgery, employee testified she first saw her surgeon shortly before the surgery (which occurred in 2010 according to employee and in 2007 according to Mr. England). Employee testified that the symptoms that led to her surgery were incontinence and pain down her right leg. As employee understands it, her surgeon performed surgery because she believed employee had degeneration in her low back that was causing a disc problem.

Dr. Woiteshek opined employee had a preexisting permanent partial disability of her lumbar spine but his opinion is unsupported. Dr. Woiteshek examined employee on October 27, 2010 - almost 6 years after employee's work-related knee injury. Dr. Woiteshek testified he did not review any medical records related to the alleged low back injury or surgery before forming his expert opinions. Dr. Woiteshek did not know when employee underwent low back surgery or what symptoms led employee's surgeon to perform the surgery. Dr. Woiteshek's opinion that employee had a permanent back condition that preexisted her elbow injury is not supported by any medical records reviewed by Dr. Woiteshek or by any medical records in evidence. More importantly, Dr. Woiteshek's opinion that employee's back condition constituted a 25\% permanent partial disability as of the date employee sustained the 2004 elbow disability is belied by employee's own testimony that the extent of her back problem was that it would hurt from time to time.

We find that employee's back condition was not a hindrance or obstacle to employment on the date of the primary injury. We find that employee's back condition did not constitute a permanent partial disability as of the date of the primary injury.

Is employee permanently and totally disabled?

Next, we must consider whether employee is permanently and totally disabled without considering the effects of her back condition. Dr. Woiteshek recommended the following:

1) [Employee] is advised to avoid all bending, twisting, lifting[,] pushing, pulling, carrying, climbing, and other similar tasks as needed.

2) [Employee] should not handle any weight greater than 10-15 pounds and limit this task to an occasional basis assuming proper lifting techniques.

3) [Employee] should not handle weight over her head or away from her body, nor should she carry weight over long distances or uneven terrain.

4) [Employee] is advised to avoid remaining in a fixed position for any more than 20-30 minutes at a time including both sitting and standing.

5) [Employee] should change positions frequently to maximize comfort and rest in a recombinant fashion when needed.

6) [Employee] is advised to pursue appropriate stretching, strengthening, and range of motion exercises in addition to nonimpact aerobic conditioning such as walking, biking, or swimming to tolerance daily.

(Tr. 103)

Dr. Woiteshek attributed the first, fourth, and fifth recommendations to employee's low back condition. We disregard those restrictions for purposes of our analysis. Dr. Woiteshek's sixth recommendation - that employee should stretch and exercise - is not a restriction or limitation on employee's physical activity.

That leaves us to consider whether employee is able to compete in the open labor market in light of the following restrictions: a) employee should not handle any weight greater than 10-15 pounds on an occasional basis; b) employee should not handle weight over her head or away from her body; and, 3) employee should not carry weight over long distances or on uneven terrain.

Mr. England provided the only vocational opinion in this matter. Mr. England expressed his belief that Dr. Woiteshek's back-related restrictions (restrictions \# 1, 4, and 5), considered alone, render employee unable to perform work activities. That opinion is unhelpful to our present inquiry in light of our determination that the low back condition is not a preexisting permanent disability. Mr. England also expressed his opinion that if one considers all of Dr. Woiteshek's physical restrictions, employee is unable to compete in the open labor market. Again, Mr. England's opinion is not helpful in light of our determination that the low back condition is not a preexisting permanent disability.

Neither Mr. England nor any other witness expressed an opinion regarding employee's vocational prospects if one considers only restrictions \# 2 and 3 in light of employee's age, work history, and education. Employee has failed to persuade us that she is permanently and totally disabled.

What is the extent of Second Injury Fund liability for permanent partial disability? In light of our findings above, we must determine the liability of the Second Injury Fund without regard to the alleged low back condition. We find that as of the date of the primary injury, employee had the following pre-existing permanent partial disabilities: 35 % of the right lower extremity at the 160 -week level ( 56 weeks); 35 % of the right upper extremity at the 175 -week level ( 61.25 weeks); 35 % of the left upper extremity at the 175 -week level ( 61.25 weeks); and, 35 % of the right upper extremity at the 232week level ( 81.2 weeks).

Employee: Janice Ervin

Injury No. 04-135871

Dependents: N/A

Employer: Health Management Associates

Additional Party: Second Injury Fund

Insurer: Liberty Insurance Corporation

Hearing Date: December 3, 2012

Checked by: CS/rm

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? December 30, 2004.
5. State location where accident occurred or occupational disease contracted: Butler 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 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 happened or occupational disease contracted: Employee was adjusting a bed and injured her left elbow.
12. Did accident or occupational disease cause death? N/A

1. Parts of body injured by accident or occupational disease: Left elbow.
2. Nature and extent of any pe