Adela Guzman v. George's Processing, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No. 10-112340

Employee: Adela Guzman

Employer: George's Processing, Inc. (Settled)

Insurer: Self-Insured (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. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the sole issue of Second Injury Fund liability (if any) for permanent partial disability benefits.

The administrative law judge rendered the following findings and conclusions: (1) employee sustained a compensable injury on November 1, 2010, that resulted in disability of 16.5 % of the body as a whole; (2) as of November 1, 2010, employee was not at maximum medical improvement for her alleged pre-existing permanent partial disabilities of the right wrist, left wrist, and right long finger from her claim of December 31, 2009; and (3) by application of the decisions in Hoven v. Treasurer, 414 S.W.3d 676 (Mo. App. 2013) and Miller v. Treasurer, 425 S.W.3d 218 (Mo. App. 2014), employee's injuries do not trigger Second Injury Fund liability because employee had not undergone any treatment for her preexisting injuries of December 31, 2009, until after her last injury of November 1, 2010, and was not at maximum medical improvement at the time of her last injury.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in finding the Second Injury Fund was not liable for permanent partial disability; (2) in finding that employee was not suffering from an injury that constituted a hindrance or obstacle to her employment at the time of her work injury on November 1, 2010; and (3) in finding employee's injuries prior to November 1, 2010, did not qualify employee to recover benefits from the Second Injury Fund.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee worked for employer hanging and packing chickens. Employee's supervisors expected her to hang 52 chickens per minute. Hanging chickens involved grabbing one chicken in each hand, twisting them, and hanging them overhead. In the course of her

work, employee also routinely handled boxes of chicken parts weighing between 23 and 70 pounds. Employee complains that these duties caused her to suffer a repetitive trauma injury affecting her neck and bilateral shoulders culminating on or about November 1, 2010.

Employee received authorized treatment provided by employer with Drs. Gary Moffitt and John Heim for her shoulder and neck complaints. Although an MRI revealed a partial thickness tear of employee's right rotator cuff, Drs. Moffitt and Heim agreed that surgical intervention would not likely benefit employee, and instead pursued a treatment regimen of physical therapy exercises. Despite employee's failure to improve with physical therapy, both doctors ultimately opined that employee has reached maximum medical improvement with regard to her bilateral upper extremities.

Employee provided a report and testimony from Dr. David Volarich, who opined that her repetitive work activity of reaching overhead was the prevailing factor causing her to suffer overuse syndrome of the bilateral shoulders, as well as an overuse syndrome resulting in a strain/sprain of the cervical spine. In a report generated by an independent medical examination requested by the employer, Dr. Ted Lennard agreed that employee's work was the prevailing factor causing (at least) the onset of her right shoulder pain; Dr. Lennard did not address employee's left shoulder or cervical spine complaints.

Employee persuasively testified (and we so find) that she continues to experience pain in her bilateral shoulders 24 hours per day, even on the weekends when she is not working. The pain extends from her shoulders into her neck and upper back. Based on the essentially unanimous/uncontested expert medical opinion evidence, we are persuaded that employee's repetitive work activity was the prevailing factor causing her to suffer overuse syndrome of the bilateral shoulders, as well as an overuse syndrome resulting in a strain/sprain of the cervical spine; we so find. After careful consideration, we find that, as a result of the effects of the primary injury, employee suffers a permanent partial disability of 20 % of the right shoulder; a 5 % permanent partial disability of the left shoulder; and a 5 % permanent partial disability of the body as a whole referable to the cervical spine.

Employee alleges that, at the time of the primary injury culminating on November 1, 2010, she was suffering from preexisting conditions of ill-being affecting her bilateral wrists and her right long middle finger resulting from her repetitive work of packing, wrapping, and weighing boxes of chicken parts. Employee reported these injuries to employer and requested treatment on or about December 31, 2009, but for unknown reasons, employer delayed sending employee for treatment for almost a year.

On December 29, 2010, Dr. Moffitt first evaluated employee for her bilateral upper extremity complaints, and noted a history of pain in both wrists and numbness in both hands, with the symptoms waking employee at night. Dr. Moffitt believed employee was suffering from a chronic inflammatory problem, recommended a physical therapy program, and released employee back to hanging and packing chickens without restriction. Employee's symptoms did not improve with physical therapy, however, so on March 1, 2011, Dr. Moffitt referred employee to Dr. John Heim, an orthopedic surgeon.

On March 28, 2011, Dr. Heim recommended a nerve conduction study that revealed a right carpal tunnel syndrome. On May 5, 2011, Dr. Heim noted that physical therapy had "not accomplished anything," and that employee's complaints remained unchanged. Transcript, page 48. Dr. Heim recommended right carpal tunnel and right trigger finger release surgeries, and performed those procedures on June 20, 2011.

Employee's triggering and locking of the right middle finger resolved following surgery, but with respect to her right carpal tunnel syndrome, it appears to us that the surgical release performed by Dr. Heim did not ultimately improve employee's condition in any fashion. ${ }^{1}$ Employee underwent post-surgical physical therapy, but it is clear from the records of Drs. Heim and Moffitt, as well as employee's own testimony, that this treatment was not effective in relieving her ongoing symptoms. On August 19, 2011, and December 9, 2011, Dr. Heim noted that employee continued to provide a history of multiple complaints, and determined that employee was then at maximum medical improvement. Dr. Moffitt saw employee again on June 27, 2013, and recorded a history from employee that the surgery was not helpful in resolving employee's complaints referable to the right wrist. Dr. Moffitt agreed with Dr. Heim that no further treatment was advisable in light of employee's ongoing complaints.

Although Dr. Heim was not deposed, it is obvious from his treatment records that he was rather skeptical of employee's ongoing subjective complaints, and provided his December 9, 2011, opinions with an eye toward terminating treatment and getting employee back to work. Dr. Heim seemed especially persuaded by the results of a December 5, 2011, functional capacity evaluation (FCE) where the therapist (purportedly) observed inconsistent pain behaviors on employee's part. It was after this FCE that Dr. Heim made the decision that there was nothing more he could offer employee. In any event, in the absence of firsthand testimony from the therapist who performed the FCE, we are not persuaded by Dr. Heim's suggestion that, based on the results of the FCE, employee's ongoing complaints should be seen as exaggerated or otherwise disingenuous.

Employee continues to experience swelling and constant, severe pain in her right hand, as well as pain in her left wrist. Employee described problems with gardening, household chores, turning doorknobs, awakening at night, opening and closing jars, dressing herself, and with driving referable to her bilateral wrist injuries of December 31, 2009, that have remained consistent since that date. ${ }^{2}$ In light of this evidence, although Dr. Heim did not render his maximum medical improvement opinion until August 19, 2011, we find that employee was, in reality, at maximum medical improvement with respect to her bilateral

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[^0]: ${ }^{1}$ At oral argument in this matter, counsel for the Second Injury Fund asserted that employee testified that Dr. Heim's surgery improved her right carpal tunnel syndrome complaints. But after a careful review of the hearing transcript, we find no such testimony from employee. Instead, employee's complaints at the hearing mirror her original pre-surgical complaints as reflected in the records from Drs. Moffitt and Heim. Compare Transcript, pages 14-18 versus pages 46-48, and 100 .

${ }^{2}$ We note that employee delivered her testimony through an interpreter, and there appears to have been some temporal confusion during the course of the Second Injury Fund's cross-examination, where employee seemed to indicate her pain/limitations referable to the December 31, 2009, injuries began "three years ago," which would have been some time in 2012. On both direct and redirect examination, however, employee consistently indicated (and we are so persuaded) that the ongoing limitations she describes began contemporaneous with her pain which manifested in December 2009.

carpal tunnel syndrome as of December 31, 2009, because her symptoms and limitations did not improve at all with treatment.

Dr. Volarich rated preexisting permanent partial disability affecting employee's bilateral wrists referable to carpal tunnel syndrome, opined that these conditions amounted to hindrances or obstacles to employment as of November 1, 2010, and that these conditions interact with the primary injury in a synergistic fashion, such that a 15 % load factor is appropriate. We find these opinions persuasive. ${ }^{3}$ We find that as of November 1, 2010, employee suffered from preexisting permanent partial disability affecting the bilateral wrists referable to carpal tunnel syndrome in the amount of 10 % of the left wrist and 20 % of the right wrist, and that these preexisting conditions of ill-being interact with the effects of the primary injury in a synergistic fashion, such that a loading factor of 15 % is supported.

Section 287.220 RSMo creates the Second Injury Fund and controls the assessment of Second Injury Fund liability in "all cases of permanent disability where there has been previous disability." Employee seeks enhanced permanent partial disability benefits from the Second Injury Fund. Section 287.220 provides as follows with respect to Second Injury Fund liability for enhanced permanent partial disability benefits:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent par