Rhonda Sartin v. Manpower, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No. 11-076995

Employee: Rhonda Sartin

Employer: Manpower, Inc. (Settled)

Insurer: Insurance Company of the State of PA (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision reversing the September 25, 2014, award and decision of the administrative law judge.

The parties asked the administrative law judge (ALJ) to resolve the following issues: (1) medical causation; (2) nature and extent of permanent partial disability; and (3) Second Injury Fund liability for permanent total disability.

The administrative law judge rendered the following findings and conclusions: (1) the September 7, 2011, injury was caused by employee's work activities; (2) employee suffered a 12.5 % permanent partial disability from the last injury; and (3) awarded permanent total disability benefits from the Second Injury Fund.

The Second Injury Fund filed a timely Application for Review with the Commission, challenging the award of permanent partial disabilities against the Second Injury Fund. For the reasons set forth herein, we reverse the award of the administrative law judge.

Employee was 51 years old at the time of the primary injury on September 7, 2011. She is a high school graduate. Her work history includes working in the poultry industry as an eviscerator, hanger and farm worker, and twenty years in the shoe and boot industry where she primarily worked as a boot cleaner. Employee has no history of light duty or sedentary work.

In 2002, employee had surgery on both of her shoulders. On February 19, 2002, her left shoulder was operated on to repair a rotator cuff tear. Employee also suffered impingement syndrome in the left shoulder. On June 28, 2002, her right shoulder was operated on to repair a labral tear, anterior instability, and impingement syndrome. These injuries were related to her employment as a boot cleaner.

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[^0]: ${ }^{1}$ All statutory references are to the Revised Statutes of Missouri (2014), unless otherwise indicated.

Employee returned to her job as a boot cleaner after these surgeries. She was paid a piece rate based on the number of boots she finished as opposed to an hourly rate. Before the surgeries, she was able to finish enough pieces to make a living. After the surgeries she was not able to finish enough pieces in a day to make a living, because she could not do the fast work with her hands and arms any longer. The motion and repetition caused inflammation into the palms of her hands up to the sides of her neck. Sometimes she would not be able to turn her head for two or three days. Her employer paid her minimum wage, because she was not able to complete enough pieces to earn a rate equivalent to minimum wage.

Employee left her job as a boot cleaner approximately one year after her shoulder surgeries because she was no longer able to make more than minimum wage. Employee sought work that involved more lifting and less handling of objects. Heavy lifting did not bother employee, and she initially took a job at IDF doing "excessively heavy work" without problems because the work was not repetitive.

Employee received an average of one cortisone injection a year to reduce inflammation and alleviate pain in her shoulders. Employee continues to have trouble with repetitive work with her hands and arms, and she is limited in her reaching and overhead movements.

In September 2011, employee was working as a material handler/fabricator for EFCO. Employee was placed at EFCO by Manpower, Inc., a temporary placement service. As part of her duties, employee would lift heavy door and window frames. Some weighed between 38 and 42 pounds, while others weighed over 100 pounds and would require two people to lift.

On or about September 7, 2011, employee began to feel pain in her back near her spine when she breathed. In the weeks prior to the onset of pain, employee had been lifting frames by herself. After three to four days, the pain became so bad she could barely breathe. Employee went to the Emergency Room in Cassville, Missouri. Employee was diagnosed with a thoracic strain, given pain medication, and told to stay off work for two days.

When employee called to report this to her employer, she was told to see Dr. James Jordan that day. Because Dr. Jordan was not available that day, employee saw a nurse practitioner who told her to return to work. Employee returned to work the next morning to the same job at EFCO lifting dies by herself. Shortly thereafter, employee told her supervisor that she could not work any longer due to "horrible, excruciating pain."

Employee was eventually able to see Dr. Jordan. Dr. Jordan advised employee she should avoid heavy lifting and limit herself to light duty work but did not issue any restrictions. He released employee as having reached maximum medical improvement without permanent restrictions (MMI) on October 28, 2011. Dr. Jordan did recommend that employee return to a position where she could team lift, but EFCO discharged employee the same day she was released at MMI.

After EFCO's termination, Manpower, Inc. placed employee in a light duty position with a charitable organization called Crosslines. In this position, employee was responsible for removing empty hangers from clothing racks and folding linens. Employee performed this work for a little more than a week. Employee testified that while the job was self-paced and not physically demanding, she was unable to perform the work because of pain radiating from the center of her spine all the way down to her fingertips. Employee has not worked since she left her employment at Crosslines.

Employee testified that after Dr. Jordan's release, she was getting "worse and worse." She sought treatment with Dr. Horace Peterson, who treated employee with manipulative therapy, anti-inflammatories, and pain medications. Employee's back did not improve, and Dr. Peterson advised employee her back would not improve any further. Dr. Peterson prescribed carbamezepine, hydrodone, and naproxen. Employee was not taking any of these medications prior to the September 2011 work injury. Since the 2011 injury she has received a cortisone injection approximately every six months. Employee has not received surgery or a surgical recommendation for her back.

Employee settled her claim against employer/insurer for the primary injury for permanent partial disability at a rate of 12.5 % of the body as a whole.

At the hearing, employee described her current symptoms from the primary injury. She stated that she can barely turn her head due to neck soreness and stiffness and described pain from her shoulders across her back, pain in her hips, and a burning sensation in her knees. Employee has to lay down multiple times a day, between 20-30 minutes. She did not need to lay down during the day before her primary injury. Employee has difficulty sitting or standing for more than 30 minutes since the primary injury and has to alternate. She had no difficulty standing for long periods of time prior to the work injury, and was able to sit for longer periods of time. During the hearing, employee had to request a break so she could move around because she was having trouble concentrating on the questions she was being asked due to her pain and also expressed that she was in pain from sitting during a deposition.

Employee continues to take carbamezepine, hydrodone, and naproxen. The medication helps her pain and burning sensations "a little." Employee testified that the side effects from the carbamazepine include excessive fatigue and memory loss, and related that she will forget the names of well-known friends, where she placed items five minutes after she set them down, what she is trying to say by the end of a sentence, and she has trouble with reading comprehension. The hydrocodone makes employee drowsy and lethargic. Employee also has trouble sleeping due to pain, which makes it harder to function the next day. Employee did not have trouble sleeping before the 2011 injury. Employee does not lift more than 5 to 6 pounds since the injury, where before she was "lifting a lot of weight" at work.

Overall, employee stated that whereas she used to be "active and bouncy and [a] gogetter" before the 2011 injury, it is now hard to get out of a chair and she spends her

day watching television and playing on her phone and that on a typical day "I get out of bed and I do nothing."

Dr. Mitchell Mullins evaluated employee at the request of her legal counsel on October 8, 2012, and authored a report expressing his findings. Dr. Mullins opined that the 2011 work injury resulted in an acute thoracic strain and secondary development of chronic myofascial pain syndrome. He noted that employee had a pre-existing condition that had required surgeries on both shoulders in 2002, and that this condition was a hindrance or obstacle to employment prior to her primary injury. At his deposition, Dr. Mullins stated that these were "pretty major surgeries" but "she seemed to recover from those fairly well."

Dr. Mullins restricted employee's frequent lifting to 10 pounds with nothing repetitive, 20 pounds occasionally, alternate sitting and standing to relieve pain or discomfort, and provided several postural and manipulative restrictions on employee. Dr. Mullins did not relate any of these restrictions to any particular condition. At his deposition, Dr. Mullins stated that all of employee's medications and their side effects were attributable to employee's primary injury.

Dr. Mullins provided permanent partial disability (PPD) ratings of 16\% to the body as a whole for the last work injury to employee's spine, 20 % to the right shoulder for the preexisting condition, and 16 % to the left shoulder for the preexisting condition. Dr. Mullins opined that "[t]he combination of [employee's] impairments creates a substantially greater impairment in the total of each separate injury and [a] loading factor of 10 % should be added." Dr. Mullins also opined that employee was "incapable of competing in the manual labor market as she is and should be considered permanently disabled."

When asked if employee could return to a manual labor job if the only injury she had were the last injury, Dr. Mullins testified that it was "very hard to say" and that he really could not say "one way or another."

Mr. Phillip Eldred, a certified rehabilitation counselor, also evaluated employee at the request of her legal counsel. This evaluation took place on March 12, 2013. Mr. Eldred interviewed employee, conducted vocational testing, and reviewed records documenting employee's medical treatment.

Regarding employee's preexisting shoulder problems, Mr. Eldred concluded that employee had an impairment "that was vocationally disturbing such as to constitute a hindrance or obstacle to employment before September 7, 2011."

Regarding the primary injury, Mr. Eldred noted that employee was working before the injury without pain medications or accommodations. He noted that Dr. Jordan had placed no restrictions on employee, that Dr. Mullins' restrictions put employee at the

"less than sedentary" level, and that Dr. Robert Paul had placed employee on light-to sedentary restrictions. ${ }^{2}$

Adopting Dr. Mullins restrictions, Mr. Eldred concluded that it was "highly unlikely that any reasonable employer in the normal course of business would hire [employee] for competitive, gainful employment." Mr. Eldred opined that employee was permanently and totally disabled due to a combinatio