| FINAL AWARD DENYING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Injury No.: 11-037876 |
| Employee: | Wanae Glasco |
| Employer: | Citicorp, Inc. (Settled) |
| Insurer: | Constitution State Services Co. (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 § 287.480 RSMo. We have reviewed the evidence, read the parties’briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge. |
| Introduction |
| The parties asked the administrative law judge to resolve the following issues: (1) nature and extent of the primary injury; (2) employee’s average weekly wage and benefit rates; (3) whether employee’s preexisting disability was a hindrance or obstacle to her ability to maintain employment or to be reemployed should she become unemployed; and (4) whether the Second Injury Fund is liable to employee for any disability compensation.The administrative law judge issued an award that determined as follows: (1) employee has a compensable work-related injury resulting in a 15% permanent partial disability to the left knee at the 160-week level; (2) there is no dispute that employee had significant and debilitating preexisting low back problems that affected her employment and employability; (3) based upon employee’s April 27, 2011, injury and her preexisting back injury and her age and training, no employer would reasonably be expected to employ employee in the open labor market; and (4) employee’s average weekly wage was 655.60 which corresponds to a permanent total disability rate of 437.29.The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred: (1) because employee’s personal physician testified that the total disability is a result of the preexisting back dysfunction; and (2) because employee’s pay stubs don’t substantiate the rate assigned by the judge.For the reasons set forth below, we reverse the award and decision of the administrative law judge. |
| Findings of Fact |
| Employee was born on August 11, 1956. She is a high-school graduate with a degree in nursing and a Missouri LPN license. She has an additional BS degree in accounting. On August 14, 2000, she went to work for employer in the collections department. |
Employee has suffered from low back pain and disability since the late 1990s, for which she sought treatment including approximately four lumbar spine surgeries prior to 2008. ${ }^{1}$ In June 2008, Dr. Robert Drisko performed a right L3-4 laminectomy for stenosis and a herniated disc; a posterolateral fusion at L3-4; and the placement of a bone growth stimulator.
Employee has also suffered from pain and swelling affecting her right knee since at least 2005. Dr. Alexandra Strong performed an arthroscopic surgery of employee's right knee in 2005 to address a lateral meniscus tear. In late 2009, employee experienced a recurrence of pain and swelling in her right knee. She saw Dr. Strong again on January 12, 2010. Dr. Strong noted that three cortisone shots to the right knee had been ineffective in relieving employee's symptoms, and recommended another arthroscopic surgery to address a suspected lateral meniscus tear.
On January 28, 2010, Dr. Strong performed an arthroscopic medial and lateral meniscectomy of the right knee. Following the surgery, employee underwent physical therapy and was off work until March 8, 2010. In the interim, employee developed a painful infection of pseudogout which required additional evaluation and intervention by Dr. Strong in the form of knee aspirations, a steroid injection, and prescription pain medications.
On May 17, 2010, employee saw Dr. Jonathan Jacobs reporting a history of severe back pain despite having taken 3 or 4 hydrocodone pills that day. Dr. Jacobs determined that employee had failed back syndrome and a flat affect from the longacting narcotic analgesics she was taking. Dr. Jacobs recommended employee see a pain specialist and also a psychiatrist, but noted that employee felt unable to pursue these options owing to her finances.
On October 19, 2010, employee returned to Dr. Drisko reporting a recent onset of severe pain in the left side of her back, with radiating pain down the back of her leg and sometimes into the foot. Dr. Drisko noted employee's desire to rest, and took her off work until October 29, 2010. He also ordered an SI injection.
On January 18, 2011, Dr. Drisko noted employee's history of severe low back pain with radiation into both legs following two recent falls down flights of stairs. He diagnosed post-traumatic radicular flares, and provided employee with another SI joint injection, and a prescription for Flexeril. Dr. Drisko again took employee off work, and this time he filled out short-term disability paperwork to that end.
Dr. Drisko's notes on the short-term disability forms reveal the following restrictions on employee's physical activities during this time period: no lifting, carrying, pushing, pulling, or climbing, and an inability to work. On February 3, 2011, employee reported to Dr. Drisko that she could not stand up straight, that she was suffering constant pain in
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[^0]: ${ }^{1}$ Neither the parties nor the medical experts in this case were able to identify, with specificity, the exact number of low back surgical procedures, or the nature of such procedures, that employee underwent prior to 2008 .
Improve: Wanae Glasco
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her left leg, and that she was miserable. Dr. Drisko recommended an MRI, prescribed a Medrol Dosepak, and decided to continue employee off work because she couldn't get around.
An MRI study of February 5, 2011, suggested the following pathology with regard to the lumbar spine: a broad-based disc bulge at L1-2 without significant central canal or neuroforaminal narrowing; a broad-based disc protrusion at L2-3 causing mild right neuroforaminal stenosis without significant central canal or left neuroforaminal narrowing; a broad-based disc bulge at L3-4 with facet arthrosis and thickening of the ligamentum flavum, changes of a right hemilaminectomy, and mild right neuroforaminal stenosis without central canal or left neuroforaminal narrowing; a diffuse facet arthropathy at L4-5 with thickening of the ligamentum flavum, without compromise of the central canal; and severe disc desiccation at L5-S1 as well as postsurgical changes of bilateral laminectomies, without significant central canal or neuroforaminal narrowing.
On February 10, 2011, Dr. Drisko noted employee was continuing to have severe pain in her left leg causing her to suffer sleep deprivation and a great deal of anxiety. Dr. Drisko felt it was necessary for employee to receive psychiatric assistance, and recorded a history from employee that she could not do anything at all owing to the constant pain and numbness in her left leg, and that medication was not helpful. Dr. Drisko felt employee might be a candidate for a dorsal column stimulator, and referred her for a consultation.
On March 29, 2011, employee saw Dr. Strong again for follow-up regarding her right knee. Employee reported popping and swelling in her knee developing over the last two weeks. Dr. Strong determined that employee probably had a recurrence of pseudogout, and performed an aspiration and injection of lidocaine.
Also on March 29, 2011, employee returned to Dr. Drisko, reporting continued severe back and left leg pain, but she decided not to go forward with the procedure to implant a dorsal column stimulator. Instead, Dr. Drisko performed an SI injection with cortisone, and noted employee's desire to return to work in about two weeks.
As of April 12, 2011, Dr. Drisko released employee to return to light duty work, with the following restrictions: no lifting, carrying, pushing, or pulling, and the requirement that she be permitted to get up every 2 hours for 10 minutes at a time.
On April 27, 2011, there was a tornado drill at employer's premises. While descending the stairs to an on-site tornado shelter, a coworker shoved employee from behind. Employee's right foot slipped off the step, and she fell partway to the ground, but was able to stop her fall with the assistance of a coworker. In the course of this motion, employee's left knee bent underneath her, with her buttocks resting against the back of her left leg. Following this event, employee experienced the onset of significant left knee pain.
Employee saw Dr. David Prickett on May 6, 2011. Dr. Prickett diagnosed a left knee strain, ordered an MRI, and determined employee was able to work with the caveat she be permitted to use a cane if she desired. On May 25, 2011, Dr. Prickett noted that the MRI showed tiny chondral defects of the medial femoral condyle, and determined that because employee's pain continued to worsen 28 days after the tornado drill event, an orthopedic referral was appropriate. Nevertheless, he reiterated his diagnosis of a left knee strain and continued his recommendation that employee return to work with the sole restriction that she be permitted to use a cane if desired. He also prescribed hydrocodone.
On June 6, 2011, employee saw Dr. Ryan Snyder in connection with Dr. Prickett's referral. Dr. Snyder diagnosed left medical knee and thigh pain most likely related to pedis bursitis, with incidental findings of a couple of small chondral lesions of the medial femoral condyle. Dr. Snyder ordered physical therapy, which employee began on June 13, 2011.
Employee filed a claim for compensation in connection with the April 2011 accident alleging she suffered injuries to her back, neck, left knee, left leg, and body as a whole. She ultimately settled her claim against the employer consistent with an approximate 15\% permanent partial disability rating of the left knee.
It does not appear that employee sought any additional treatment for the other injuries she alleges to have resulted from the April 2011 accident, until she returned to Dr. Drisko on July 19, 2011, reporting a chief complaint of severe pain in her low back and over her SI joints, and a twisting injury to the low back at work about three weeks prior. Dr. Drisko diagnosed sacroiliac joint dysfunction, as well as an acute on chronic lumbar strain, and took employee off work. Dr. Drisko completed new disability paperwork for employee which took her off work until approximately October 18, 2011, for lumbar stenosis and back pain, with restrictions of no lifting, pushing, pulling, carrying, climbing, bending, or stooping, and an inability to work. Dr. Drisko also ordered a lumbar myelogram.
On August 1, 2011, employee attended another physical therapy session ordered by Dr. Snyder; notes from that visit suggest employee did not tolerate any exercise and reported pain with all movements. Employee returned for another session on August 9, 2011, but reported to the therapist that Dr. Drisko had informed her that her left leg complaints were due to her low back condition, and that physical therapy should be discontinued until a lumbar myelogram was obtained.
On August 17, 2011, employee underwent a lumbar myelogram which suggested the following pathology with regard to the lumbar spine: no significant central canal or neuroforaminal compromise at L1-2; indentation upon the left paracentral and lateral aspect of the thecal sac at L2-3 causing mild stenotic disease with suspected left lateral recess narrowing and mild right neuroforaminal narrowing; postsurgical changes of a right hemilaminectomy at L3-4 without significant central canal stenosis but with some possible mild narrowing o