| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Suzanne Gwin |
| Employer: | Southeast Missouri Mental Health Center |
| Insurer: | Missouri Office of Administration-CARO |
| 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, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. |
| Preliminaries |
| The parties asked the administrative law judge to determine the following issues:(1) medical causation with regard to the lumbar spine, left hip, and left lower extremity; (2) past medical expenses; (3) future medical aid; and (4) nature and extent of permanent disability.The administrative law judge determined as follows:(1) the February 17, 2010, accident was the prevailing factor in causing employee’s resulting lumbar spine, left hip and left lower extremity injuries, and resulting symptoms, medical conditions, disability, and need for treatment; (2) employee’s claim for past medical bills is denied; (3) employee is in need of future medical treatment to cure and relieve her from the effects of her February 17, 2010, work-related injury and employer is liable to provide same; and (4) employee has sustained permanent partial disability as a result of the February 17, 2010, accident as follows: 25% of the body as a whole referable to the lumbar spine and left hip, and 30% of the right shoulder at the 232-week level.Employee filed a timely application for review with the Commission alleging the administrative law judge erred in determining that employee failed to meet her burden of proving that she is permanently and totally disabled as a result of the work injury.For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of the nature and extent of disability. |
| Discussion |
| Nature and extent of disability |
| After a thorough review of the conflicting expert medical and vocational opinions, the administrative law judge determined that employee is not permanently and totally disabled. We acknowledge that the record of evidence in this matter provides substantial and competent evidence to support the administrative law judge’s findings. However, after our own careful review of the evidence, we are persuaded to find otherwise, for the following reasons. |
In his award, the administrative law judge specifically indicated that he found employee's testimony at the hearing to be credible. We discern no basis on this record to disagree with the administrative law judge's finding in this regard. We note that employee's own description of her complaints referable to the work injury is substantially corroborated by the medical records in evidence. Consequently, we credit employee's testimony and find as follows with regard to the effects of the work injury upon her.
Employee suffers right arm numbness and tingling on a daily basis, which limits her use of her dominant right hand, and causes her to drop things. Employee also experiences ongoing, daily back pain that radiates into her lower left extremity, as well as a dull, achy pain in her left hip. On a good day, employee's back pain is a $4 / 10 in severity, but this may increase to 7 / 10$ on a bad day. Activities such as climbing stairs, pushing/pulling, and bending exacerbate employee's low back pain. Owing to back pain, employee is unable to walk for more than 15 to 20 minutes, is unable to stand longer than 30 minutes, and sometimes has to lie down to relieve her pain. Prolonged sitting also causes problems with pain and stiffness. Employee takes narcotic pain medications and muscle relaxers to manage her symptoms.
Turning to employee's attempt to return to work following her injury, we note the uncontested evidence that, following her release by Dr. Wayne from active treatment as of November 23, 2010, employee missed a considerable amount of work, even though she was performing essentially sedentary work tasks. Specifically, from November 23, 2010, through March 18, 2011, when employer fired her, employee missed a total of 61 hours of scheduled work. Employer argues, in its brief, that employee did not provide testimony to specifically delineate whether she missed work during this time period solely because of her own pain complaints or because she was attending medical appointments, but this strikes us as a distinction without a difference. From our own careful review of the leave slips themselves, we find that, in any event, all of this missed work was owing to the permanent and ongoing effects of the work injury.
We note also that, during this timeframe, employee applied to work for employer as a front desk receptionist, a light duty position that would have permitted her to work within her restrictions and alternate sitting and standing as needed. Employer, however, rejected employee's application for this position, and instead terminated her employment when she ran out of leave. In our view, employer's unwillingness to provide this employee of seven years with work within her restrictions casts considerable doubt on the prospect that some other employer will be willing to do so.
Employee's sporadic work history between November 2010 and March 2011 also, in our view, strongly corroborates the opinion from employee's vocational expert, Gary Weimholt, that employee lacks the ability to compete for even sedentary work in the open labor market. Ultimately, after careful consideration, we find the analysis from Dr. Musich and Mr. Weimholt most persuasive with regard to this issue. We find that employee is unable to compete for work in the open labor market as a result of the multiple disabling effects of the primary injury. We conclude, therefore, that employer is liable for permanent total disability benefits pursuant to § 287.200 RSMo.