Suzanne Gwin v. Southeast Missouri Mental Health Center

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.

We modify the award of the administrative law judge as to the issue of the nature and extent of disability.

Employee is entitled to, and employer is hereby ordered to pay, weekly permanent total disability benefits beginning on the stipulated date of maximum medical improvement, March 18, 2011, at the rate of $\ 265.69. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued August 9, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 5th day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Suzanne Gwin

Injury No. 10-011144

Dependents: N/A

Employer: State of Missouri, Southeast Missouri Mental Health Center

Additional Party: Second Injury Fund (Dismissed)

Insurer: Missouri Office of Administration-CARO

Appearances: Mark Moreland, attorney for the employee.

Jackson Otto and Keyla Rhoades, attorneys for the employer-insurer.

Hearing Date: March 21, 2016 (commenced)

Checked by: LCK/kg May 6, 2016 (completed)

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? February 17, 2010.
5. State location where accident occurred or occupational disease contracted: St. Francois County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee was carrying a client on a litter when she fell down and twisted her back.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Right shoulder, left hip, left lower extremity, and body as a whole referable to the lumbar spine.
4. Nature and extent of any permanent disability: 30% permanent partial disability of the right shoulder and 25% permanent partial disability of the body as whole referable to lumbar spine and left hip.
5. Compensation paid to date for temporary total disability: 2,694.95
6. Value necessary medical aid paid to date by the employer-insurer: 39,786.06
7. Value necessary medical aid not furnished by the employer-insurer: None.
8. Employee’s average weekly wage: 398.54
9. Weekly compensation rate: 265.69 for temporary total disability, permanent total disability and permanent partial disability.
10. Method wages computation: By agreement.
11. Amount of compensation payable: $45,061.02 for permanent partial disability.
12. Second Injury Fund liability: N/A.
13. Future requirements awarded: Future medical. See Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Mark Moreland.

On March 21, 2016, the employee, Suzanne Gwin, appeared in person and with her attorney, Mark Moreland for a hearing for a final award. The employer was represented at the hearing by Assistant Attorney General Jackson Otto and Assistant Attorney General Keyla Rhoades. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The State of Missouri, Southeast Missouri Mental Health Center was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self insured employer through the Missouri Office of Administration/CARO.
2. On or about February 17, 2010, Suzanne Gwin was an employee of the State of Missouri, Southeast Missouri Mental Health Center, and was working under the Workers' Compensation Act.
3. On or about February 17, 2010, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 398.54. The rate of compensation for temporary total, permanent total, and permanent partial disability is $\ 265.69 per week.
7. The employee's injury to the right shoulder was medically causally related to the accident.
8. The employer-insurer paid $\ 39,786.06 in medical aid.
9. The employer-insurer paid $\ 2,694.95 in temporary disability benefits. The first time period paid began on February 18, 2010 and continued through April 21, 2010. The second period paid began on May 10, 2010 and continued through June 2, 2010.
10. The employee reached maximum medical improvement on March 18, 2011.

1. Claim for previously incurred medical aid.
2. Claim for future medical aid.
3. Nature and extent of permanent disability which includes either permanent total disability or permanent partial disability against the employer.
4. Medical Causation with regard to the lumbar spine, left hip and left lower extremity.

Note: At the hearing, the employee dismissed her claim against the Second Injury Fund with prejudice. The voluntary order of dismissal was signed on April 6, 2016.

Exhibit 1: Deposition of Gary Weimholt including his C.V. and report

Exhibit 2: Deposition of Dr. Thomas Musich including his C.V. and medical report

Exhibit 3: Medical records of Parkland Health Clinic

Exhibit 4: Physical therapy records of Farmington Hand and Physical Therapy

Exhibit 5: Cervical MRI from Midwest Imaging Center

Exhibit 6: Medical records of Dr. Andrew Wayne

Exhibit 7: Evaluation of Dr. David Robson

Exhibit 8: Medical records of Timberlake Surgery Center

Exhibit 9: Physical therapy records of Farmington Sports \& Rehab Center

Exhibit 10: Medical records of Vista Imaging of Jefferson County

Exhibit 11: Medical and billing records of Select Pain \& Spine Center

Exhibit 12: Medical bills of Advanced Orthopedic Specialists

Exhibit 13: Medical records of Advanced Pain Center

Exhibit 14: Time and attendance input records of Missouri Department of Mental Health from March 8, 2010 through March 18, 2011. (Note: At the hearing, the employer objected to the admission of this exhibit due to the records not being certified. The record was left open for the records to be certified. On April 21, 2016 the employer notified the Court that it was waiving the objection to the records and the record was admitted into evidence)

Exhibit 15: Subrogation Lien of First Recovery Group on behalf of CareImpPlus in the amount of $\ 3,467.37

Exhibit 16: Statement of Select Pain and Spine Center in the amount of $\ 618.95

Exhibit A: Deposition of Dr. Andrew Wayne including his C.V. and medical records

Exhibit B: Deposition of Dr. James Coyle including his C.V. and medical records

Exhibit C: Deposition of Dr. John Krause including his C.V. and medical record

Exhibit D: Deposition of James England including his C.V. and medical report

Exhibit F: Employee Injury Report dated February 20, 2010

Exhibit E: November 15, 2010 Functional Capacity Evaluation of ProRehab

(Note: At the hearing, the employee objected to the admission of the functional capacity evaluation on two grounds. The first was that a certified copy of the evaluation was not offered into evidence. The second was that the functional capacity evaluation constituted a medical report that contained medical opinions offered by a physical therapist. The employee argued that it was not admissible since it was neither served in accordance with the 60 day rule under Section 287.210.7 RSMo or the deposition of the physical therapist was offered. The record was left open for the employer to submit a certified copy of the evaluation. The admissibility of the exhibit was taken under advisement.

On April 21, 2016 the attorney for the employer sent an e-mail to the Court that he had been informed by the service provider that a portion of its electronic records had become corrupted, and that as a result Athletico Physical Therapy (formerly ProRehab) was only able to recover and certify the first three pages of the functional capacity evaluation. The employer submitted the certified portion of the exhibit and a letter of explanation from Athletico via electronic mail. A phone conference was scheduled with the parties and held on May 6, 2016. The employee continued to object to the admissibility of the document because only three pages of the 19 page exhibit was certified; and that it was a medical report. The record was closed on May 6, 2016.

Section 287.210.7 RSMO says that the testimony of a treating or examining physician may be submitted into evidence by a complete medical report and shall be admissible by giving 60 days notice of the intent and provide a reasonable opportunity to obtain cross examination. 287.210.5 RSMo defines a complete medical report as the report of a physician. I find that a physical therapist is not a physician and the exhibit is not a medical report under Section 287.210 RSMo.

Section 287.140.7 RSMo states that every person furnishing the employee with medical aid shall permit its record to be copied and certified copies of the records shall be admissible in any such proceedings. I find that the functional capacity evaluation is considered to be medical aid. I find that the three pages that were certified are admissible. Employer Exhibit E which is the certified three pages from the functional capacity evaluation received by the Division on April 21, 2016 is admitted into evidence.

The uncertified 19 pages that were offered into evidence as Employer Exhibit E at the March 21, 2016 hearing is not admitted into evidence. At the hearing, the Court retained this Exhibit. The uncertified copy of the functional capacity evaluation shall remain part of the Division file for appellate purposes.)

Judicial Notice of the contents of the Division's files for the employee was taken.

Suzanne Gwin, the employee.

The employer's proposed Award was received on May 20, 2016. The employee's brief was received on June 21, 2016.

The employee testified that she was born in 1958, will be 58 years in a month and lives with her husband in Farmington, Missouri. She graduated from Jackson High School in 1976. She attended Southeast Missouri State University in the fall of 1976 and spring of 1977. She

finished one year. She started her second year but stopped soon thereafter. She took general courses such as math, history, English, and physical education. She then worked at Dairy Queen before she went to Metro Business College in the late 1980s. She went to Metro Business College for one year and received a certificate of completion in the clerical field of study and also completed a business management course. At that time she was able to type about 50 words per minute. She learned basic computer skills including how to operate a computer but did not learn any programs such as Word or Excel. From 1993 to 1999, she was a stay-at-home mother. She then worked for a year at Proctor \& Gamble on the line packing cases of material and then performed in-home health care for about six months which included assisting clients and cleaning homes.

The employee testified that from 1999 to 2004, she worked at Country Haven Manor. She was hired as a cook, then became a Med Aid I, and was promoted to a supervisor. As a Med Aid I, she gave out medicine and performed personal care. The facility had 36 beds and she supervised 15 employees. As a Supervisor, she was in charge of buying groceries, making employee schedules, and keeping written records. She managed the payroll for the employees and wrote down their time but did not sign their paycheck or have anything to do with taxes. She had experience in inventory control and kept track of what she needed to buy.

The employee testified that she worked at Southeast Missouri Mental Health from 2004 through March of 2011. She was a Psyche Aid I which involved watching over clients, bathing them, escorting them to classes, and making sure their personal care was taken care of. She had to be able to lift 50 pounds, and occasionally did that. She performed physical work including using stairs, walking and standing. On average she was standing and walking 75 % of the day. Her job required her to twist and bend. She had to maintain and retain control of clients, which was a daily thing, and she had to physically restrain clients on a daily basis.

The employee testified that prior to working at Southeast Missouri Mental Health and prior to 2009, she had no problems with or treatment to her left hip, low back or right shoulder. In May of 2009, she had a work injury. A client attacked her, grabbed her and lunged at her face. Her face was scratched and she was shoved back against a bench. She received medical treatment and missed about six weeks of work.

On May 12, 2009, the employee went to Parkland Health after being attacked by a patient. She had right eye, head and back pain. Cervical x-rays were normal. A facial contusion and neck pain were diagnosed. On May 18, the employee had continued neck and back pain. A facial contusion, neck pain, back pain, headache and blurred vision were diagnosed. A CT scan of the head was ordered. Darvocet, Flexeril, and therapy were prescribed for neck and thoracic pain. The therapy started on May 20 and the May 26 CT scan of the head showed subtotal or complete absence of the corpus callosum and no obvious occult midline mass.

On June 1, 2009, the employee returned to Parkland for a facial contusion, neck pain, back pain and headaches with blurred vision. On June 8, the employee had occasional neck pain and mild headaches but the pain was decreased. Therapy was continued and the employee was released to light-duty work. The June 18 therapy note showed improvement with 2 out of 10

pain and all goals were met. On June 22, it was noted that the employee had pulled a muscle in her mid back which went up through her neck; the back pain had improved with physical therapy and she could return to work.

The employee testified that after returning to work she resumed her normal job, had no permanent problems, and did not miss any other work.

The employee testified that on February 17, 2010, she was injured at work. Due to one of the clients having issues, the nurse determined that the client needed to be sent to the restraint room where the walls are padded and the bed has restraint cords. Since the employee would not walk to the restraint room, she had to be carried by six people on a litter that had three handles on each side. The employee's position in carrying the litter was on the feet side. The client was kicking, screaming and squirming; and managed to kick the employee's hands. The employee lost control of the litter and fell to the tile floor which had concrete underneath. The employee hit her left hip, left knee and buttocks on the ground; and her low back twisted. Her right arm went one way and her body went the other way. She reported the accident and was sent to Dr. Dickinson.

The employee went to Parkland Health Clinic on February 18, 2010, after falling and landing on her left hip. She had right shoulder pain and right arm numbness. She was diagnosed with a left buttock contusion and right shoulder strain. Naproxen, Flexeril and Tramadol was prescribed.

On February 20, 2010, the employee filled out and signed an employee injury report. It stated that on February 17 she was carrying a client in a litter and the client was kicking, screaming and fighting. The employee fell to the floor. She was holding the litter with her right hand and when she fell she pulled something in her right shoulder and the middle of her back. Listed as the body parts injured were left hip and knee, right shoulder and arm, and mid back.

On March 5, she was not doing much better and had loss of strength and limited motion. X-rays of the right shoulder were normal. X-rays of the neck showed mild degenerative changes at C6-7. A cervical MRI and physical therapy were ordered. The March 15 cervical MRI showed hypertrophic degenerative arthropathy at C1-2 and mild degenerative spondylosis C4-5 through C6-7 without cord or nerve root impingement. On March 22, the employee had continued pain, right arm numbness, and limited right shoulder motion. Neck pain, right shoulder pain, and right arm radiculopathy were diagnosed. Therapy was ordered. Norco was prescribed.

The employee testified that when she went to Dr. Dickinson she told him about her low back and left hip. When she saw Dr. Wayne on March 26, 2010, she complained of hip pain.

The employee saw Dr. Andrew Wayne, a physical medicine rehabilitation doctor, beginning on March 26, 2010. The employee had pain in the right side of her neck, right shoulder and right elbow. She had coldness and a stinging in the right upper extremity. She had hip pain from a probable contusion that had completely resolved. Dr. Wayne diagnosed a

sprain/strain to her neck, with the neck pain being soft tissue in nature; and a right shoulder sprain/strain. Dr. Wayne ordered a right shoulder MRI to rule out internal derangement. He took her off work and recommended physical therapy.

The April 8, 2010 MRI showed a complete or subtotal rotator cuff tear and fluid in the subacromial/subdeltoid bursa which suggested a complete tear.

The employee told Dr. Wayne on April 12, that her shoulder pain was radiating down to her right elbow. Dr. Wayne diagnosed a right shoulder sprain/strain with MRI evidence of an acute/subacute complete or nearly complete tear of the rotator cuff, persistent mechanical pain in the right cervicothoracic region with chronic degenerative changes in the neck, and a completely resolved right hip contusion. He referred the employee to Dr. Collard for the right shoulder, increased the pain medication, and kept her off work.

The employee saw Dr. Collard on April 21, 2010. He assessed right shoulder rotator cuff tear, paraspinal and trapezial myofasciitis, and mild arthritis of the right shoulder. It was his opinion that the prevailing factor in her rotator cuff tear was the fall at work. Dr. Collard recommended right shoulder surgery with limited work duties until surgery.

The employee was paid temporary total disability from February 18, 2010 through April 21, 2010 .

The employee took 24 hours of leave without pay workers' compensation from April 28 through April 30.

On May 10, 2010, Dr. Collard performed a right shoulder arthroscopic rotator cuff repair, arthroscopic biceps tenodesis, subacromial decompression with acromioplasty, and distal clavicle resection. His post-operative diagnoses were right shoulder arthralgia, grade II-III labral lesion of the superior portion of the labrum with biceps tendinitis, supraspinatus rotator cuff tear, and degenerative changes of the AC joint. On June 2, Dr. Collard prescribed pain medication, ordered physical therapy, and returned her to sedentary work duty.

The employee was paid temporary total disability from May 10, 2010 through June 2, 2010 .

The employee testified that after the return to work for right shoulder surgery, she was on light duty and never returned to full duty. While on light duty, she filed papers in different offices but it was not a full-time job at the prison. She missed time from work due to pain in the low back, left hip, left leg and right shoulder.

The employee testified that in May and June she had low back pain and left hip pain that went down her left leg. She had shooting pain down her backside and the backside of her left leg to the foot. She had pain when she bent or twisted and could not bend over.

The employee started therapy at Farmington Sports and Rehabilitation Center for her right shoulder on June 9, 2010. In addition to the right shoulder, the employee had been having left shoulder, left hip, left knee, upper back and lower back pain since the fall.

On June 23, the employee reported to Dr. Collard improved range of motion and continued pain. He continued therapy and limited work.

From June 3, 2010, through June 15, 2010, the employee took 72 hours of sick leave workers' compensation and holiday leave workers' compensation instead of light duty. She took 4 hours of sick leave workers' compensation due to the June 23 appointment with Dr. Collard.

The employee saw Dr. Wayne on July 9 and reported improvement since the surgery but continued to have pain and limited range of motion. She had complaints of left hip pain continuing since the February injury. Dr. Wayne assessed work injury with resultant right shoulder injury as well as sprain/strain in the right neck region and left hip complaints. Dr. Wayne performed a cortisone injection in the left hip, continued physical therapy, and kept her on work restrictions. On July 14, the employee saw Dr. Collard with improved pain and mild limitation of motion of the right shoulder. He continued therapy, limited work duty and recommended less pain medication.

Dr. Wayne on July 29, 2010, noted slow but steady progress with the right shoulder and some mild improvement in left hip pain. She had soreness and locking up of the hip with intermittent pain radiating down from the thigh to the knee, and occasional numbness in the left leg. His impression was left lateral hip pain described as persistent myofascial pain with some bursitis. The same work restrictions were continued.

In July 2010 the employee took a total of 43 hours of sick leave workers' compensation for doctors' appointments, physical therapy, and shoulder pain. Fourteen of the hours were for shoulder pain and the remaining 29 were for appointments and therapy

On August 4, Dr. Collard noted shoulder pain and limited range of motion. He limited overhead work and no more than 20 pounds lifting. Dr. Collard changed the pain medication and continued therapy.

The employee had a lot of lower back pain radiating into the left hip and down her entire left leg when she saw Dr. Wayne on August 19, 2010. The symptoms were worse with increased activities and she was having trouble sleeping. On examination, she had loss of lumbar motion. Internal rotation to the left hip and thigh caused lateral hip pain and external rotation of the left hip caused pain in the calf and ankle distribution. Straight leg raising on the left caused pain down the left thigh. Dr. Wayne assessed low back pain and left lower extremity radiating symptoms. Dr. Wayne noted that he was somewhat puzzled by the fact that her lower back and leg complaints were more heightened compared to when she last saw him. The employee attributed that to a change to weaker pain medication. Dr. Wayne ordered a lumbar MRI, adjusted the medication and continued light duty.

The last day of therapy was on August 23, 2010. The employee continued to have 5-6 out of 10 pain in her shoulder. The therapist noted that her tolerance for treatment had improved but remained fair and limited due to pain complaints; and she had not met her goals.

The employee saw Dr. Collard on August 25, 2010. She continued to have pain and loss of strength with significantly improved range of motion. On exam, the employee had 150 degrees of forward flexion, 145 degrees of abduction, 70 degrees of internal rotation and 75 degrees of external rotation; and mild decreased rotator cuff strength. Dr. Collard put her on a home exercise program and released her to full work duty.

The lumbar MRI was performed on August 28, 2010, due to low back pain down the left leg and numbness of the foot. The L2-3 level showed early disc degeneration and facet changes; the L3-4 level showed minor facet changes; the L4-5 level had a narrowed degenerative disc and a 2-3 mm anterolisthesis of L4 on L5 due to facet disease bilaterally and a minimally disc bulge, bilateral foraminal stenosis more on the right; and the L5-S1 level showed minimal facet changes and a subtle disc bulge. The radiologist's impression was degenerative disc at L2-3 with facet changes; anterolisthesis, protrusion, and facet changes resulting in minimal bilateral foraminal stenosis of L4-5 more on the right than left; and a degenerative disc at L5-S1 with facet changes.

In August 2010 the employee took 51.5 hours of sick leave workers' compensation and annual leave workers' compensation. The employee took 16 hours over 2 days for back and hip pain. The remaining 35.5 hours were for therapy, doctor appointments and an MRI.

The employee returned to Dr. Wayne on September 7, 2010, with her left hip and low back not improved. The pain was worse with increased activities especially with standing and walking. She was still on light duty due to her lower back and hip. Dr. Wayne stated the MRI showed multilevel chronic degenerative changes most notably at L4-5 and at L2-3 and L5-S1. He assessed lower back pain, left hip pain, left lower extremity radiating symptoms, and chronic degenerative changes in the lumbar spine. X-rays of the left hip were unremarkable. Due to concern about the possibility of a left labral tear in the hip, he ordered an MRI of the pelvis/hip with emphasis of the left hip. Dr. Wayne continued light duty of no lifting more than 10 pounds, and alternating between sitting and standing.

The September 14, 2010, left hip arteriogram was negative for fracture or lytic lesion. The post-arteriogram MRI demonstrated mild degenerative changes without evidence of fracture, avascular necrosis, or labral tear.

The employee returned to Dr. Collard on September 15, 2010, with constant pain and loss of strength and a new complaint involving numbness and tingling in her right arm. On exam, she had 180 degrees of flexion, 175 degrees of forward flexion, 170 degrees of abduction, and 70 degrees of internal and external rotation. She had decreased strength of her rotator cuff. Dr. Collard ordered a functional capacity evaluation.

On September 20, 2010, Dr. Wayne stated that he reviewed MRI arteriogram of the left hip which showed mild degenerative changes. He assessed lower back pain along with left hip

pain and proximal radiating symptoms in the left lower limb. Dr. Wayne thought that chronic degenerative changes in the lower back could partially be responsible for her symptoms. For diagnostic and therapeutic purposes, he ordered a left L4-5 transforaminal epidural steroid injection/block. Dr. Wayne refilled medications and kept her on light duty.

Dr. Wayne on September 29, 2010, performed a lumbar epidural steroid injection for a diagnosis of lower back pain with left lateral hip and thigh pain with lumbar spondylosis most notably at L4-5.

In September of 2010 the employee took 41 hours of sick leave workers' compensation and annual leave workers' compensation. Twenty-four of the 41 hours were for three days for doctor appointments and testing on September 14, September 15, and September 29. The remaining 17 hours were for back, hip and leg pain.

The employee returned to Dr. Wayne on October 20, 2010. She reported only two days of mild relief following the injection. She had persistent right shoulder pain. On examination, she was tender in the left lumbosacral region and left lateral hip and upper gluteal region. Her gait was slow and somewhat antalgic on the left side. Straight leg raise caused pulling type pain in the left buttock and was negative on the right. Lumbar motion was mildly to moderately restricted in flexion and extension and side bending; with pain in all those directions. She had mild restriction for right shoulder flexion and pain. Dr. Wayne's impression was lower back pain with left lateral hip and thigh pain with lumbar spondylosis mainly at L4-5, chronic pre-existing degenerative changes in the lower back, and right shoulder pain. Dr. Wayne discussed the right shoulder with Dr. Collard. Dr. Collard stated that since he had released the employee for care, he did not think he needed to see her but agreed with the functional capacity evaluation. Dr. Wayne renewed the Vicodin and to minimize the medicine as her symptoms allow; and prescribed Norflex as needed. He continued the restrictions of no lifting over 10 pounds and periodically alternating between sit and stand. After the FCE he would make further recommendations.

The employee took 6 hours of sick leave workers' compensation and 2 hours of annual leave workers' compensation on October 20, 2010 the day of her appointment with Dr. Wayne.

The November 15, 2010 functional capacity evaluation performed at PRORehab by Paul Kohler, MS, OTR/L was ordered by Dr. Wayne for a diagnosis of low back pain and right shoulder repair. It was to determine the feasibility for the employee to return to work as a Psyche Aid I for Southeast Missouri Mental Health Center. The worker was on site for 3.75 hours. It was the opinion of the therapist that the employee is employable on a full time basis in the medium work demand level which nearly meets all self reported requirements for full duty in her current job. The final disposition was to be determined upon physician review of the report and other medical findings. The employee could occasionally lift 25 pounds and 15 pounds frequently floor to waist. She could lift shoulder to overhead 15 pounds occasionally and 11.5 pounds frequently. When lifting waist to shoulder, she could occasionally lift 5 pounds with the right arm and 10 pounds with the left arm; and could frequently lift 11.5 pounds waist to overhead. The employee could sit, stand, and walk on a frequent basis. She could occasionally climb, squat, kneel, and crawl. She could bend frequently and reach both

**Injury No. 10-011144**

forward and overhead frequently. Consistency and quality of effort showed fair to good effort; the pain complaints were out of proportion to demonstrated abilities and she had guarded effort with grip strength testing. It was noted that the employee had inconsistencies between her PDI score of "severely disabled" and her demonstrated abilities with testing.

On November 23, 2010, Dr. Wayne stated that he reviewed the November 15, 2010 report in its entirety and spoke with the therapist who administered the testing. The employee functioned in the medium work demand level. Based on his evaluation of the FCE, his clinical evaluation on her many appointments and discussion with the therapist, Dr. Wayne assigned the following permanent restrictions: lifting no more than 25 pounds from floor to waist or from waist to shoulder level, lifting no more than 15 pounds above shoulder level, and she should rest five minutes every hour if necessary. The doctor recommended continued home exercises and becoming less reliant on pain medications. He placed her at maximum medical improvement, discharged her from care, and recommended use of over-the-counter medications as needed.

On November 15, 2010 she took 8 hours of sick leave workers' compensation for the Functional Capacity Evaluation. In December of 2010 she took 5.5 hours sick leave over two days due to shoulder pain.

In a letter dated December 17, 2010, it was Dr. Wayne's opinion that the employee had a 2% permanent partial disability of the body as a whole referable to the lower back and left hip due to the February 17, 2010 injury. It was his opinion that the employee had a 5% permanent partial disability of the whole person due to non work-related, pre-existing degenerative abnormalities in her lower back. The August 2010 MRI showed degenerative changes at L2-3, L4-5 and L5-S1. He deferred to Dr. Collard for a potential rating regarding the right shoulder. Dr. Wayne recalled a recent conversation with Dr. Collard in which he remarked that she would not require restrictions regarding her right shoulder. Dr. Wayne noted that she did not seem to have major complaints regarding the right shoulder when participating in the functional capacity evaluation.

The employee was sent to Dr. Coyle on January 12, 2011 for left buttock pain, left hip pain, left posterior thigh pain, and intermittent numbness on the top of the left foot. The pain was worse with extended walking. There was some relief with rest and medication. On exam, there was tenderness over the left SI joint and left trochanteric bursa. Straight leg testing produced back pain on the left but was negative on the right leg. There was exquisite tenderness with any rotation of the left hip. She ambulated with a Trendelenburg gait. Past medical history included rotator cuff repair surgery and a thirty year history of smoking a pack a day. Dr. Coyle diagnosed degenerative spondylolisthesis at L4-5 and left hip pain. Dr. Coyle thought the symptoms were more consistent with left hip pathology than spondylolisthesis and recommended an orthopedic evaluation of the hip. He did not make any changes in her current work status, as she is currently working and had been released by Dr. Wayne with permanent restrictions.

The employee testified that after she was released by Dr. Wayne and Dr. Coyle, she continued to see doctors for the low back pain. The first doctor she saw after being released was

Dr. Fan at Select Pain and Spine Center. She went to him on her own, and he was not authorized by the employer to treat her. She never asked employer to send her to Dr. Fan.

The employee saw Dr. Fan at Select Pain and Spine Center on January 26, 2011 with complaints of low back pain to the left foot, left groin pain, and right shoulder pain. On examination, the employee ambulated with an antalgic gait with a left leg limp. There was moderate paravertebral tenderness on the left at L4 and L5. Flexion was moderately restricted bilaterally. The Faber test produced left groin pain. The right shoulder had minimal reduction in external and internal rotation and abduction with pain and a positive impingement sign. Dr. Fan assessed lumbar degenerative disc disease with left radicular pain exacerbated by the February 2010 injury, lumbar facet arthropathy exacerbated by the February of 2010 injury, left hip posttraumatic pain, and right shoulder rotator cuff tear status post repair. Dr. Fan recommended an injection, but not until an orthopedic evaluation to address left hip pathology, was completed. He continued the Hydrocodone and ibuprofen.

In January 2011 the employee took 17 hours sick leave workers' compensation for back pain over 4 days, including going to Dr. Coyle on February 12 and Dr. Fan on January 26.

The employee was sent to Dr. Krause on February 7, 2011, for left hip pain. The employee had pain when she lies on her left side from her back through her buttock and down her left leg. On examination, she had pain at the extreme of internal and external rotation of the hip. She had tenderness directly over her greater trochanter, minimal pelvic wing tenderness, and diffuse tenderness around her buttock. Dr. Krause reviewed the September of 2010 MRI which showed fluid in her joint and around her trochanteric bursa. He diagnosed left trochanteric bursitis. It was his opinion that the February 17, 2010 injury was the prevailing factor in the left trochanteric bursitis but was not the prevailing factor in the left hip degenerative joint disease. Dr. Krause injected her left trochanteric bursa; prescribed a home iliotibial band stretching and hamstring stretching program; and gave her Celebrex samples. He stated that he would prescribed Celebrex if the samples helped. Dr. Krause stated that trochanteric bursitis was a nonoperative condition, and since she has had symptoms for a year she had poor prognosis for complete resolution. Trochanteric bursitis only causes pain in and about the hip, and does not cause pain from the back or pain that shoots below the knees. Dr. Krause stated that if the employee had symptoms from her back to her buttock and into her toes, it could be related to lumbar spine pathology. It was his opinion that the employee was at maximum medical improvement for her trochanteric bursitis. Dr. Krause assigned a 0\% permanent partial disability regarding the left trochanteric bursitis, and stated she could work full work duty regarding the bursitis. Dr. Kruse stated that restrictions regarding her shoulder and/or back might be necessary.

On February 24, 2011, the employee saw Dr. Fan for follow-up of right shoulder, left hip and low back pain. The injection for left hip bursitis helped for two days. It was noted that her functional impairment was moderate and her pain interfered with her sleep. The pain was constant and the low back pain was worse than the left hip pain. Walking, standing, and lifting were aggravating factors; and moving around and resting were reliving factors. He continued the ibuprofen and increased the Hydrocodone. The employee was on light duty with 10 minute

breaks hourly and limitations lifting. Dr. Fan noted the employee had difficulty working due to the pain.

In February of 2011, the employee took a total of 24 hours of workers' compensation sick leave. She took off 15 hours over 3 days due to back, hip and leg pain. On February 7 she took off 8 hours to see Dr. Krause and on February 24 she took off 1 hour to see Dr. Fan.

The employee testified from March 21, 2010 prior to shoulder surgery, up through March 18, 2011, she was working light duty at Southeast Missouri Mental Health Center. She was missing work on a regular basis and took leave of various kinds due to pain in her back pain and right shoulder pain. She filed papers which allowed her to alternate sit and stand, but continued to miss work due to back and left hip pain. During that approximate year she used about 600 hours of sick leave, vacation leave and comp time. Even though she was on light duty she was unable to be at work on a consistent basis due to pain in the right shoulder and low back. On March 18, 2011, she had run out of all of her vacation, sick and comp time.

In March of 2011, the employee took a total of 13.5 hours of workers' compensation sick leave. She took 3 hours on March 7, due to back pain; 3 hours and 30 minutes on March 8, due to severe back pain; 30 minutes on March 16; 2 hours and 30 minutes on March 17, and 4 hours on March 18 due to back pain.

The employee testified that based on the restrictions by Dr. Wayne, Dr. Coyle and Dr. Robson she cannot work as a Psyche Aid I. She looked at other jobs at the employer and applied for a front desk reception job. She thought she could sit and talk to people when they came in to tell them where they needed to go. She would have been allowed to stand up periodically. It was very light duty but she was not allowed to take the job. When her time ran out she was informed that they were going to let her go and gave her papers to fill out for long-term disability. She filled the forms out and sent them to the State. She was placed on long-term disability which required her to apply for social security disability. Her long-term disability ended when she was awarded social security disability. After she was fired from the employer, she never looked for other work and did not apply for unemployment.

On March 24, 2011, Dr. Fan noted that the pain was stable except for her right arm which felt heavy and dead with numbness in the finger tips. Dr. Fan noted that the employee had been laid off since she cannot perform regular duty. The Hydrocodone was refilled.

The employee was sent to Dr. Robson on April 12, 2011 by her attorney. She had not worked since March 18, 2011. On examination, active flexion of the lumbar spine was decreased to 60 degrees. Straight leg raising of the left leg was positive at 75 degrees. Dr. Robson assessed work-related injury in February 17, 2010, which caused symptomatic spondylolisthesis L4-5 with bilateral foraminal stenosis and an L4-5 disc bulge. He saw no evidence of significant injury to the left hip and thought it was referred pain from the lumbar spine condition. Dr. Robson recommended a CT myelogram to consider surgical treatment at L4-5. After the test, a decision can be made regarding possible surgery. It was Dr. Robson's opinion that the February 17, 2010 injury was the prevailing factor in her development of low back and left hip problems

which remained unresolved and relate to her lumbar spine at the L4-5 level. She could continue on a light work duty status until further testing which would be about 10-15 pounds lifting; and no repetitive bending, stooping, twisting or awkward positions.

On April 21, 2011, the employee saw Dr. Fan with right shoulder pain and right arm numbness, left hip pain, and low back pain. Hydrocodone and ibuprofen were refilled. On May 24, Dr. Fan refilled the Hydrocodone. On June 21, Dr. Fan noted that her pain fluctuated daily and refilled the Hydrocodone.

The employee returned to Dr. Coyle on July 18, 2011. The employee had pain with weight bearing on the left lower extremity, tenderness of the left trochanteric bursa, pain flexing forward at the waist, and difficulty with heel and toe walking. Dr. Coyle stated that due to the lumbar MRI being almost a year old, he recommended a new MRI to see if she needed to have anything surgically done from a low back standpoint. He would not order the lumbar MRI and X-rays until she smoked smoking and had a negative nicotine test. Dr. Coyle stated that if surgery was not indicated, she would be at maximum medical improvement with regard to the low back. It was Dr. Coyle's opinion that the employee should not lift more than 20 pounds from the standpoint of her low back but it was a provisional restriction which could be modified based upon results of the MRI.

On August 16, 2011, Dr. Fan noted that the pain fluctuated every day and the Hydrocodone helped her to be active, taking care of household chores and grandchild at home. It was noted her functional impairment was moderate. Dr. Fan noted that Dr. Coyle did not strongly recommend low back surgery. The Hydrocodone and ibuprofen were refilled.

The employee testified that after Dr. Fan, she went to Dr. Bowen at Orthopedic Associates in Cape Girardeau. He continued medications and injections in the back. She went to Dr. Bowen on her own and did not ask her employer to send her. She went to Dr. Bowen through 2014, and then started going to Advanced Pain Center in Farmington.

The employee went to Advanced Pain Center on October 17, 2014, due to lower back and right shoulder pain from a lifting injury four years ago. The pain radiated into both legs left greater than right. The pain was moderate to severe of 7 out of 10 and was aggravated by standing and walking. On examination, there was moderate tenderness in the center of the spine as well as around the facet joints at L5-S1; and the range of motion was symptomatic and mildly reduced. There was moderate tenderness on the anterior aspect of the right shoulder with a positive Hawkins sign. Dr. Ahn diagnosed lumbar bulging disc and discogenic pain; lumbar degenerative disc disease/facet arthropathy; and osteoarthritis of the right shoulder. Dr. Ahn noted that the employee had seen Dr. Fan and Dr. Bowen and had been prescribed Hydrocodone. The employee had recently been terminated by Dr. Bowen due to IC UDS. An MRI of the lumbar spine was ordered due to worsening pain.

On October 31, 2014, Dr. Ahn continued the Hydrocodone and prescribed Gabapentin. On November 19, Dr. Ahn performed a lumbar medial branch block at L3-4, L4-5 and L5-S1. On November 26, the employee had pain in the left hip, back and shoulder; and right arm

numbness. Dr. Ahn assessed chronic pain syndrome, degeneration of the lumbar or lumbosacral disc, lumbosacral spondylosis, shoulder pain, and lower leg osteoarthrosis. Dr. Ahn continued the Hydrocodone. Gabapentin was discontinued due to side effects. The lumbar injection did not help and Hydrocodone was continued. Dr. Ahn refilled the Hydrocodone on December 24, 2014. On January 21 and February 18, 2015, Dr. Ahn prescribed Voltaren Gel, and Hydrocodone.

The employee testified that she still goes to Advanced Pain Center once a month. She has continued to receive medication for and injections in her low back and left hip.

The employee testified that with regard to her right shoulder it hurts when doing housework if she does too much pushing and pulling; and her right arm is weak. She has learned to use her left hand to compensate. With regard to her low back and left hip, she has pain that sometimes will go down to her foot. The back pain on a good day is a 4 out of 10 and on a bad day is a 7. She has been on narcotic pain medications since 2010. Each day she takes four Percocet and a muscle relaxer twice day that are being prescribed by a doctor at Advanced Pain Center. Her back pain gets worse with walking, steps, and any kind of housework such as sweeping and vacuuming. She does those activities on a limited basis including walking for no more than a half a block. She can stand in one place for no more than 30 minutes before needing to sit down. When traveling she stops every hour.

The employee testified that her day-to-day activity after her 2010 low back injury has decreased. A typical day starts with getting up to take her medication. She sits on a couch for about an hour until her pain medication takes effect. If she does too much house cleaning, the rest of day she is on the couch. Two or three days a week she will go to bed during the day. She no longer does home maintenance, and her back limits her ability to bend, stoop and twist. She has trouble bending over to put her socks on. She cannot sit for more than 30-45 minutes before needing to get up due to low back pain. She has trouble using her right arm. She does not go shopping alone and her husband goes. Her husband is not employed, is on disability, and does not really have any limitations. He fell through their deck, broke his lower back, and cannot work due to damage to his sciatica nerve. She does not help her husband do anything. He mows the grass and takes care of the yard, including planting flowers.

The employee testified that she can walk for about 10-15 minutes but will then be in pain the rest of the day. She can stand for 15-20 minutes before she gets uncomfortable, and can stand up to 30 minutes depending on how she is feeling that day. She can sit for a maximum of 30 minutes before getting uncomfortable. At her deposition on January 30, 2015, she testified that she did not limit herself in sitting. Now she limits herself sitting to a point, and will get up when she has pain when sitting. She was doing the same thing at the time of her deposition on January 30, 2015. If she goes up and down her stairs too much she has pain. She stopped visiting her daughter in St. Louis every week.

The employee testified that she never sought vocational rehabilitation or job placement services, but did apply for a receptionist job at Southeast Missouri Mental Health Center because it allowed her to sit and get up a little bit and move around as needed. She does not have any

problems with reading, she can do math including addition and subtraction and can make change. She used to be able to do algebra but does not think she could do it now. She could no longer perform a supervisor job like she had at Country Haven because most offices have computers and use computer programs. She does not have a home computer but has a Kindle Fire and uses it without problems including email. When she was employed she never used a computer and never used anything like Microsoft Word. She took typing in high school, and at Metro Business College and at that time she could type 50 words a minute. Now she could not type anymore than 20 words a minute.

The employee saw Dr. Musich on November 15, 2011. Examination of the right shoulder showed positive impingement testing. Maximum right shoulder abduction was 95 degrees and right shoulder anterior flexion was 154 degrees with end range pain. With regard to the low back, there was subjective pain to deep palpation over the midline at L4-5. With regard to lumbar motion, there was a loss of 40 % anterior flexion, 50 % extension and 25 % lateral flexion bilaterally. The left Faber and left pyriformis tests were positive. She had an antalgic gait with a persistent limp.

It was Dr. Musich's opinion that the employee suffered work-related trauma during the course and scope of her employment in May 2009 and on February 17, 2010. The work injury of May 2009 resulted in abrasions, contusions and strain of the upper back, neck and head. She required approximately six weeks of conservative care and returned to work without restrictions. It was his opinion that there was no permanent partial disability referable to the work trauma of May 2009.

It was Dr. Musich's opinion that the work trauma of February 17, 2010, was the prevailing factor in the development of acute complaints referable to the right shoulder girdle, low back and left pelvis which required extensive evaluation and treatment. It was Dr. Musich's opinion that all of the evaluation and treatment received by the employee after the February 17, 2010 injury was reasonable and necessary; and that the work trauma of February 17, 2010 is causally related to the employee's ongoing and persistent complaints referable to her right shoulder, low back and left pelvis/hip.

It was Dr. Musich's opinion that the work trauma of February of 2010 resulted in symptomatic right shoulder arthralgia, symptomatic labral lesions, supraspinatus rotator cuff tear and symptomatic degenerative changes of the right AC joint. It was his opinion that the right shoulder pathology/symptomatology from the work trauma resulted in a permanent partial disability of 50 % of the right upper extremity at the shoulder level.

It was his opinion that the work trauma of February of 2010 resulted in symptomatic lumbar spondylosis, left sacroiliac joint dysfunction, left pyriformis syndrome and left trochanteric bursitis. It was his opinion that the employee suffered ongoing disability referable to her low back and left pelvis which resulted in a permanent partial disability of 40 % of the person as a whole referable to the lumbosacral spine and persistent post traumatic work-related left pelvic symptomatology.

It was Dr. Musich's opinion that the employee should continue to participate in a home exercise program and observe permanent restrictions placed by her treating physicians. It was his opinion that the employee had reached maximum medical improvement referable to the work trauma of February 2010 and should continue to treat with pain management on an as-needed basis. He recommended a continued home therapy program and recommended weaning from narcotic analgesics.

Based upon the history and medical records, Dr. Musich found no pre-existing disability prior to February of 2010. It was his opinion that the combination of the aforementioned disabilities is significantly greater than their simple sum and will continue to produce a chronic hindrance in her routine activities of daily living.

The employee saw Gary Weimholt for a vocational evaluation on March 20, 2012. His report was dated August 29, 2012 and his deposition was taken on August 2, 2013. At the time of his interview the employee was 54 years old. During the interview he observed the employee get up and move about stiffly which she said was due to her back and hip. With regard to typing and keyboard experiences, she had typing in high school and vocational school with limited work experience requiring typing and keyboard use. Her computer literacy was assessed as low intermediate level. She has a 10 year old Dell computer that she uses some. She has never regularly used a computer in any job and is not familiar with common business software. She can send an email, gets on the Internet and has played some games on the computer. She has not done a spreadsheet. She has used copiers, adding machines, personal computer, computer printers, typewriters, calculators and fax machines.

Mr. Weimholt noted the employee had training at Metro Business College in office work around 1990. Since then layers of technology have been added to office jobs which the employee does not have knowledge of. It was his opinion that the employee would have shortcoming for that kind of work compared to other applicants coming out of Metro Business College or in some cases high school.

Mr. Weimholt administered several test from the Employee Aptitude Survey which tests verbal comprehension, numerical ability, and visual speed and accuracy. Her scores were compared to groups of administrative assistants/secretaries, general clerks, retail clerks, and college students. The employee's verbal comprehension scores compared favorably with persons working in administrative assistant and secretary jobs, lower level general clerk jobs and retail sales jobs. Her reading comprehension is at the $50^{\text {th }} percentile and up to the 85^{\text {th }}$ percentile compared to persons working in those groups. Her visual speed and accuracy is generally very low. Her numerical ability scores are below the 20th percentile for administrative assistant/secretary and college students.

Mr. Weimholt stated that after the employee returned to work after the 2010 injury and until she left that job, she was placed on light-duty work which appeared to have been mostly sedentary and simple tasks which she was not able to maintain due to her need for treatment and ongoing symptoms. She required considerable leave during that time which led to her

being unable to continue in that job. The employee provided time and attendance records subsequent to the interview which Mr. Weimholt reviewed. The employer did not offer any new positions to her or accommodate any position even though she attempted to get a receptionist position. Since leaving State employment, she applied for some office or receptionist jobs, which were the most that she thought she could qualify for. She thought it was the only type of job that she could possibly accomplish if she was able to change positions on an hourly basis at least.

Dr. Coyle gave restrictions regarding her low back to do no lifting greater than 20 lbs . Dr. Wayne gave permanent restrictions that included no lifting over 25 lbs from ground to waist level, or from waist to shoulder level and should be limited to no lifting over 15 lbs above shoulder level. She may rest 5 minutes out of every hour if needed. Until getting additional testing, Dr. Robson recommended to continue to work light duty which would be about 10-15 lbs lifting and no repetitive bending, stooping, twisting, or awkward positions which are less than a full range of light work.

Mr. Weimholt stated that the daily activities the employee described were consistent with her limitations. She is able to do things in her own schedule but needs to be able to work within her own pace due to pain. She does not do some of the more physical things that most people do in terms of cleaning and meal preparation and things of that nature.

Mr. Weimholt stated that considering the ability to work and ongoing symptoms, it was his opinion that the employee is unable to function at either the full range of light or sedentary work. The employee reaches part of light duty but not full because the light category would not take in to account the 5 minutes of rest per hour which he generally does not see a doctor give as a restriction. Generally, vocational rest periods are 15 minutes after every two hours. It was his opinion that having to rest 5 minutes out of every hour does not in and of itself take her out work. Some sedentary jobs may allow a person to get off feet and not use upper extremities for short periods of time. Mr. Weimholt stated that if a job was strictly sedentary he did not think the 5 minutes would necessarily apply that much. Sedentary is lifting up to 10 pounds or less and sitting up to $2 / 3$ of the time. Part of the issue with performing sedentary work is her skill level and ability to do things in a quick fashion.

Mr. Weimholt performed a transferable job skills assessment. He stated that her previous work as a psychiatric aid is a semi-skilled job at the medium physical demand level which does not result in transferable job skills, given an inability to perform the full range of light work. Her psychiatric aid, in-home aid or cook type jobs exceeded her current work restrictions and did not result in any type of highly skilled transferability to lighter sedentary level. Mr. Weimholt did not think given her current level of restrictions there was any work she had done in her past that she would still be able to perform. Mr. Weimholt did not think the employee had transferrable job skills from her past relevant work that would assist her in obtaining other employment.

The employee worked for the employer in an office where she answered the phone, did door control from a desk, filled out papers, and typed once a week. She said it was not very busy and she did not handle files. Mr. Weimholt stated that the employment records show she missed

a lot of time at that job from April of 2010 to March of 2011. She took leave every month from the time she was injured until the employer terminated her employment.

Mr. Weimholt stated that after considering her level of education, work history, work restrictions, on-going symptoms and limitations of activities of daily living, it appeared that the employee would be unable to meet the workplace competencies for using time wisely at work, maintaining good work habits, providing leadership abilities, making use of computer literacy or having good transferable job-specific skills to less physical jobs. Her lost time records indicate that even a year after her injury and while performing modified sedentary duty work, she was missing work due to pain.

Mr. Weimholt stated that the employee is 54 years of age and approaching the age of 55. People 55 years and older who have one or more work disabilities have a lower expectation of labor market participation than younger persons. It was Mr. Weimholt's opinion that the employee has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment. It was his opinion that there is no reasonable expectation that an employer, in the normal course of business, would hire her for any position, or that she would be able to perform the usual duties of any job that she is qualified to perform.

From a vocational perspective it was Mr. Weimholt's opinion that it was the conditions of the right shoulder, low back and left pelvis which has resulted in a total loss of labor market access and total vocational disability. It was his understanding that this arose from the work trauma of February 17, 2010 which limited the use of her right shoulder and arm, and resulted in constant pain and weakness in respect to her right shoulder, as well a pain in the low back and left pelvis/hip. It was Mr. Weimholt's opinion that the employee was permanently and totally disabled as a result of the February of 2010 injury and physical conditions and restrictions imposed by the injury.

On January 17, 2013, Dr. Musich prepared an addendum report after he reviewed Mr. Weimholt's vocational assessment. Dr. Musich's deposition was taken on January 9, 2014. Dr. Musich stated that the employee had significant loss of abduction which should be pain free and go from 0 to 180 degrees. The employee went to 95 degrees and could not go any higher due to significant subjective pain. Anterior flexion which is raising the arm directly in front of the torso should be 0 to 180 degrees but the employee could only flex to 154 degrees. He noted pain beginning at 80 degrees which is below horizontal and pain up to 154 degrees. Dr. Musich stated that the employee would have significant pain, marked weakness and inability to perform any activities at or above shoulder level even light duty activities. The employee would have significant inability to perform any type of reaching, pushing, pulling or any above shoulder activities with her right dominant upper extremity. With regard to motion of the low back, the employee had a 40 % loss of anterior flexion, which is bending at the waist. The positive piriformis test was consistent with her pelvic and lower extremity regions. Dr. Musich stated that if she weaned herself from narcotic pain medication, other non-narcotic pain medications or other pain relief should be used.

Dr. Musich stated that medically he agreed with Mr. Weimholt's opinion that the employee has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment; and from a vocational perspective the conditions of the right shoulder, low back and left pelvis resulted in a total loss of labor market access and total vocational disability. It was Dr. Musich's opinion that the employee is totally and permanently disabled as a result of her work trauma sustained in February 2010.

The deposition of Dr. Wayne took place on September 23, 2014. It was Dr. Wayne's opinion that the employee had several injuries trying to restrain the patient. She had a soft tissue neck sprain/strain; a sprain/strain to the right shoulder with possible rotator cuff tear; and a probable contusion to her hip which had completely resolved by the time that he saw her. Dr. Wayne stated that on the $5^{\text {th }}$ visit on August 19, 2010, the employee was having a lot of pain in her lower back with the pain going into the left hip and down the entire left leg. She felt the symptoms had gotten worse since the prior visit and the pain increased with activities and was interfering with her sleep. On examination the lumbar motion was about half the normal for forward and backward bending with pain. She had tenderness over the left lower back and upper to mid gluteal region and left lateral hip. She had pain in the left calf and ankle region with external rotation of the left hip which did not fit any typical hip pathology pattern. Dr. Wayne felt the examination was global in nature and was in a very diffuse and large distribution. He ordered a lumbar MRI, which he reviewed the scan itself, and there were several levels of chronic degenerative changes in her lower back but no acute injury. Since it did not appear the employee had an acute trauma to her hip he was concerned that some of the hip and thigh symptoms were referred from her lower back. He performed a lumbar injection to try to heal the problem or cure the symptoms, but to also help pinpoint where the pain was coming from. Since the spine injection gave only two days of mild relief, he thought it was less likely that her symptoms were arising from the spine.

Dr. Wayne stated that the FCE showed that the employee was able to function in at least the medium work demand level. Dr. Wayne placed permanent restrictions of no lifting over 25 pounds from ground to waist level or waist to shoulder level; and no lifting over 15 pounds above shoulder level; and may rest 5 minutes out of every hour. It was his opinion that she had a 2 % permanent partial disability rating for the whole person attributable to the lower back and left hip complaints due to the work injury; and a 5 % permanent partial disability for the whole person attributable to her non-work-related, pre-existent degenerative abnormalities in her lower back. It was his opinion that the February 17, 2010 injury was not the prevailing factor in her ongoing complaints; and the original injury was not the reason for her ongoing complaints at the time of the rating or when he placed her at maximum medical improvement. It was his opinion that prevailing factor for the complaints was her diffuse degenerative changes in her lower back along with some arthritis in her hip. The 25 pound restriction from the floor to waist was for an occasional lift and frequent lifting was limited to 15 pounds. The overhead 15 pound limitation was for both arms, and not just the right. He disagreed with the medical providers that put restrictions of limitation of motion, bending, stooping and getting into awkward positions because restriction of motion can cause more stiffness and weakening of core muscles in the long run. Dr. Wayne stated that allowing to rest 5 minutes out of the hour is a type of alternating sitting and standing.

It was his opinion that the February 17, 2010 accident aggravated the underlying back complaints and the restrictions were to avoid worsening symptoms and for functional capabilities in performing her job. Dr. Wayne stated that part of the natural progression of degenerative change is that over a period of time there tends to be worsening of the degenerative process. It is a natural progression, but it was possible that the employee's was speeded up a little bit. It was his opinion that the persistent back and hip pain were mechanical soft tissue pain involving the muscles and tendon. When muscles and tendons are stretched and irritated, they are often times tighter than before which causes soreness, a limp or decrease in range of motion. It was Dr. Wayne's opinion that the main reason for the ongoing symptoms was due to mechanical pain caused by the work injury but not all of ongoing symptoms were soft tissue. It was his opinion that the larger component of her ongoing symptoms were from chronic degenerative changes in her back and hip.

Dr. Coyle issued a report on October 15, 2014 after reviewing additional records including from Gary Weimholt, Dr. Musich, and Dr. Fan. Dr. Coyle stated that his opinions have not changed. It was his opinion that the February 17, 2010 work injury resulted in an exacerbation of the pre-existing L4-5 spondylolisthesis; and the employee would potentially be a candidate for decompression athrodesis at L4-5. In the absence of surgery, the employee was at maximum medical improvement. It was his opinion that the employee had an overall 15\% permanent partial disability of the body as a whole at the lumbar spine with 5 % due to the work injury, 5 % due to her multilevel degenerative disc disease and 5 % due to degenerative spondylolisthesis at L4-5. Dr. Coyle continued the 20 pound lifting restriction.

Dr. Coyle's deposition was taken on December 9, 2014. Dr. Coyle stated he reviewed the August 27, 2010 MRI, and agreed with Dr. Wayne that it showed a degenerative disc at L2-3, anteriolisthesis; minimal bilateral foraminal stenosis at L4-5 and a degenerative disc at L5-S1. Dr. Coyle stated that she had a Grade I degenerative spondylolisthesis at L4-5; there was a fluid in the facets and bilateral foraminal stenosis. Dr. Coyle stated that the foraminal stenosis was more present on the right and the symptoms were on the left. The Trendelenburg gait was due to the left hip problems. Dr. Coyle thought her symptoms were coming more from the left hip because the examination was more consistent with hip pain over the trochanteric bursa and on internal and external rotation of the hip. Her exam was most consistent with hip arthritis and trochanteric bursitis.

When he saw the employee on July 18, 2011, the employee had more hip pain and she had more difficulty walking. She was 10 % heavier and her weight was contributing to her symptoms. The employee had a degenerative Grade I spondylolisthesis which he could potentially do something about, but she did not have a positive straight leg test, she had no motor weakness and most of her pain was not from her back. Since she was smoking, he did not want to get an MRI because he would not do surgery until she was not smoking. Dr. Coyle stated that most of her symptoms were coming from the hip and not the back. Dr. Coyle gave restrictions of no lifting more than 20 pounds, recommended she lose weight and stop smoking. It was Dr. Coyle's opinion that the spondylolisthesis is degenerative and not traumatic but it could have been exacerbated by the work injury. It was his opinion that the February of 2010 accident exacerbated the condition because it went from being an asymptomatic condition to a

symptomatic condition. There were no identifiable, measureable, quantifiable, radiographically discernible pathologic changes that could be seen. Dr. Coyle stated it seemed that there was some slight pathological change that took it from a non-painful condition to a painful one.

The deposition of Dr. Krause took place on December 5, 2014. Dr. Krause diagnosed trochanteric bursitis and degenerative joint disease of the hip. Bursitis causes pain on the outside part of the hip and degenerative joint disease causes groin type symptoms. It was his opinion that the bursitis was medically caused by her work injury on February 17, 2010. The degenerative joint disease was clearly not caused by her work injury. He did not believe that the left hip symptoms were not in any way related to the low back issue. It was his opinion that the employee did not need any restrictions due to her left hip and she had no permanent partial disability due to the left hip bursitis. The bursitis is usually resolved with stretching, antiinflammatory and a couple of injections. He said that buttock pain was not consistent with the trochanteric bursitis but was more a back pathology.

The employee saw James England on January 20, 2015 for a vocational rehabilitation evaluation. His deposition was taken on June 22, 2015. Mr. England reviewed the medical records; Mr. Weimholt's vocational report and deposition; and the deposition of Dr. Musich. Mr. England noted that the employee was pleasant and would make a nice impression in a job interview. There were no observable signs of impairment. She was able to sit for around 40 minutes or so before she actually got up to walk around briefly. She appeared to put out good effort on the tests she was given. Mr. England stated that the employee has basic computer knowledge and knows how to enter and retrieve data. She has done bookkeeping as well as inventory control. She has scheduled and supervised up to 15 individuals in a nursing home setting. She would have knowledge down to a light level of exertion as well as even some sedentary positions with regard to the type of work she has done in the past.

Mr. England administered the Wide-Range Achievement Test, Revision 3. She scored at a post high school level on reading and at high school level on math. Mr. England stated that her academics are in good shape considering how long she has been out of school. This would certainly allow her to perform a variety of positions from an academic standpoint. She would be capable of additional skill development if she had the interest.

With regard to functional restrictions and limitations, Dr. Collard released her without restriction for the right shoulder. Dr. Wayne sent her for a functional capacity evaluation which indicated she could function in at least the medium work demand level. Dr. Wayne recommended permanent restrictions that involved lifting no more than 25 pounds from floor to waist or from waist to shoulder level and lifting no more than 15 pounds above shoulder level. She was to rest five minutes per hour if needed. Mr. England stated that Dr. Wayne's restrictions place the employee in the light range of exertion and is closer to light than medium, so he looked at sedentary and light employment. Mr. England stated that medium exertion requires up to 50 pounds at a time. Dr. Coyle felt that she should not lift more than 25 pounds from a standpoint of her low back. Dr. Krause did not put any restrictions involving her hip. Dr. Musich thought she should observe the previously assigned restrictions.

Mr. England stated that the employee was 56 years old which placed her in the advanced age category. She has a high school education, a year and a half of college plus a year at a business college. In looking at her academic background and training, the employee would have the ability to complete for a variety of work activity under the restrictions by Dr. Coyle or Dr. Wayne. There were no restrictions from Dr. Krause or Dr. Collard. The employee was able to type; she learned some basic computer knowledge and skills; she can enter and retrieve data; had keyboarding skills; has done bookkeeping, inventory control, and payroll; and has supervised 15 people. Some of the skills that she developed throughout her work history would help her find a job in a light demand level within the doctors' restrictions.

Mr. England stated that given her educational and vocational history he thought the employee would be qualified for positions at a light or sedentary level; and were within the restrictions placed by her treating doctors, especially Dr. Coyle and Dr. Wayne. Mr. England stated that Dr. Robson saying that she should avoid bending, stooping and squatting would put her at less than a full range of light duty but not less than full range of sedentary.

Mr. England stated that the type of positions the employee would be best suited for include customer service work, a telephone order taker, certain security positions such as in an office building, an alarm monitor for a security company, a parking booth attendant, cafeteria cashier, motel/hotel desk clerk, retail counter clerk, general retail sales associate, auto rental clerk, rental services store clerk, convenience store cashier, storage facility clerk, gift shop clerk, appointment scheduler, ticket sales person such as a movie theatre or an athletic complex, usher, receptionist, courier and van driver. It was Mr. England's opinion that all of those jobs fall within the medical limitations of the doctors. Many of those jobs are sedentary in nature and would allow the person to alternately sit and stand through the day while others would involve being on her feet through the workday. A lot offer flexibility of being on their feet part of the day and off their feet part of the day. Those jobs are all in the sedentary to light range. Mr. England stated that with regard to the 5 minute resting per hour, that meant to him maybe changing positions from sitting to standing and standing to sitting.

Mr. England agreed that job attendance and punctuality are important. Mr. England stated that if the employee had a job where she continued to miss the amount of time she missed shown on her time sheets between April of 2010 and March of 2011, she would not be employable.

Mr. England stated that if the employee wanted to try to get back in the work force, she would be eligible for assistance at no cost through the Missouri Division of Vocational Rehabilitation. There is an office in Farmington, Missouri where she resides. Mr. England stated that when he saw her the employee did not have observable pain behaviors. She sat for 40 minutes without any observable difficulty; then, before starting the testing, she got up and walked around a little bit and did fine during the testing. He did not see anything that would lead him to believe that an employer sitting across the desk from her would think she was really uncomfortable or something was really wrong. She was a pleasant nice lady with no outward signs of thing he could see wrong.

The employer is disputing that the employee's injury to the body as a whole referable to the lumbar spine, the left hip and the left lower extremity was medically causally related to the February 17, 2010 accident.

Section 287.020.3 RSMo states that "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

The employee's credible testimony was that prior to working at Southeast Missouri Mental Health and prior to 2009 she had no problems with or treatment to her left hip or low back. After recovering from her May of 2009 accident, she returned to work performing her normal job and had no permanent problems and did not miss any work. On February 17, 2010, as she was helping carry a client on a litter she fell to the floor; hit her left buttocks and hip; and twisted her low back. She has had low back, left hip and left lower extremity symptoms since the accident. The medical records corroborate the employee's testimony that she had been having left hip, left lower extremity, and lower back pain since the fall.

Dr. Wayne diagnosed lower back pain with left lateral hip and thigh pain with lumbar spondylosis mainly at L4-5, and chronic pre-existing degenerative changes in the lower back. It was his opinion that the February 17, 2010 injury was not the prevailing factor in her ongoing complaints. It was his opinion that the prevailing factor for the complaints was her diffuse degenerative changes in her lower back along with some arthritis in her hip. It was his opinion that the February 17, 2010 accident aggravated the underlying back complaints.

Dr. Coyle diagnosed degenerative spondylolisthesis at L4-5 and left hip pain. It was his opinion that the February 17, 2010 work injury resulted in an exacerbation of the pre-existing L45 spondylolisthesis. It was Dr. Coyle's opinion that the spondylolisthesis was degenerative and not traumatic and the February 17, 2010 accident exacerbated the condition from an asymptomatic condition to a symptomatic condition. Dr. Coyle stated there seemed to be a slight pathological change that took it from a non-painful condition to a painful one.

Dr. Krause diagnosed left trochanteric bursitis and degenerative joint disease of the hip. It was his opinion that the February 17, 2010 injury was the prevailing factor in the left trochanteric bursitis but was not the prevailing factor in the left hip degenerative joint disease. He did not believe that the left hip symptoms were related to the low back.

Dr. Robson stated that the employee's work-related injury on February 17, 2010 caused symptomatic spondylolisthesis at L4-5 with bilateral foraminal stenosis and a L4-5 disc bulge. It was Dr. Robson's opinion that the February 17, 2010 injury was the prevailing factor in her

development of low back and left hip problems which remained unresolved and relate to her lumbar spine at the L4-5 level.

It was Dr. Musich's opinion that the employee suffered work-related trauma on February 17, 2010, which resulted in symptomatic lumbar spondylosis, left sacroiliac joint dysfunction, left pyriformis syndrome and left trochanteric bursitis. It was Dr. Musich's opinion that the work-related trauma on February 17, 2010, was the prevailing factor in the development of acute complaints referable to the low back and left pelvis which required extensive evaluation and treatment. It was Dr. Musich's opinion that all of the evaluation and treatment received by the employee after the February 17, 2010 injury were reasonable and necessary; and that the work trauma of February 17, 2010 is causally related to the employee's ongoing and persistent complaints referable to her low back and left pelvis/hip.

Based on a thorough review of the evidence, I find that the opinions of Dr. Musich, Dr. Robson, Dr. Coyle and Dr. Krause are very persuasive and are more persuasive than the opinion of Dr. Wayne on the issue of medical causation including the prevailing factor for the injury, condition and disability to the lumbar spine, left hip and left lower extremity.

Based on a thorough review of all of the evidence, I find that the February 17, 2010 accident was the prevailing factor in causing the employee's resulting lumbar spine, left hip and left lower extremity injuries; resulting medical conditions and disability; the need for treatment to the lumbar spine, left hip and left lower extremity; and the employee's symptoms to her lumbar spine, left hip and left lower extremity. I further find that the injury to the employee's lumbar spine, left hip and left lower extremity and resulting medical conditions and disability; the employee's symptoms; and the need for treatment are medically causally related to the February 17, 2010 work accident.

The amount being claimed by the employee for previously incurred medical is $\ 4,086.32. The health care provider bills are from Advanced Orthopedic Specialists (Dr. Bowen) in the amount of $\ 699.00 which is Employee Exhibit 12 and Select Pain and Spine Center (Dr. Fan) in the amount of $\ 618.95 which is Employee Exhibit 16. Employee Exhibit 15 is a letter from First Recovery Group with charges and payments listing various providers with the total paid being $\ 3,467.37. The total of all three exhibits is $\ 4,785.32. The total charges in Employee Exhibit 15 and 16 are $\ 4,086.32 which was the amount claimed at the hearing.

The employer is disputing those bills with regard to the issues of authorization, reasonableness, necessity and causal relationship.

With regard to the issue of authorization, Section 287.140 RSMo gives the employer the right to select the treating physician. The statute also gives the employee the option of selecting her own physician at her own expense. See Anderson v. Parrish, 472 S.W. 2d 452 (Mo. App. 1971).

The employee testified that after being released by Dr. Wayne and Dr. Coyle, she continued to see doctors for the low back pain. She went to Dr. Fan at Select Pain and Spine on her own. She never asked the employer to send her to Dr. Fan and he was not authorized by the employer. After Dr. Fan she started treating with Dr. Bowen on her own, and did not ask the employer to send her.

I find that the medical treatment by Dr. Fan and Dr. Bowen was unauthorized and the employee exercised her right under the statute to have treatment on her own through those physicians. I find that the employer is not liable for the bills from Advanced Orthopedic Specialists (Dr. Bowen) in the amount of $\ 699.00 and Select Pain and Spine Center (Dr. Fan) in the amount of $\ 618.95.

In addition, there were no medical records in evidence for the treatment by Dr. Bowen. I find that those medical bills are not recoverable by the employee because the corresponding medical records are not in evidence. See Martin v. Mid-America Farm Lines, Inc., 769 S.W. 2d 105 (Mo. Banc 1989).

I find that Exhibit 15 is a listing of various health care providers including Dr. Fan, Dr. Vaness, Midwest Imaging, Mineral Area Regional Medical, Aegis Sciences Corporation, Dr. Ahn, and John Grechus; with charges and payments made by First Recovery Group. There are no actual bills from the health care providers in the exhibit. There are also no corresponding medical records in evidence for Dr. Vaness, Mineral Area Regional Medical Center, Dr. Bowen, Aegis Sciences Corporation, and John Grechus. There are no corresponding medical records in evidence for some of the listed treatment dates of Dr. Fan, Dr. Ahn, and Midwest Imaging Center. I find that the payments made by First Recovery Group in the amount of \$3,467.37 are not recoverable since there were no actual medical bills and no corresponding medical records in evidence from those health care providers as set forth above. See Martin v. Mid-America Farm Lines, Inc., 769 S.W. 2d 105 (Mo. Banc 1989). I find there was not sufficient medical evidence to show that the payments were as a result of and causally related to the compensable workrelated injury. I therefore find that those payments are not recoverable.

The employee's claim for previously incurred medical bills is denied.

The employee is requesting future medical aid. Under Section 287.140 RSMo, the employee is entitled to receive all medical treatment that is reasonably required to cure and relieve her from the effects of the work-related injury. In Landers v. Chrysler Corporation, 963 S.W.2d 275 (Mo. App. 1997), the Court held that it is sufficient to award medical benefits if the employee shows by "reasonable probability" that she is in need of additional medical treatment by reason of her work-related accident. Section 287.140.1 does not require that the medical evidence identify specific procedures or treatments in the future. See Talley v. Runny Meade Estates, Ltd., 831 S.W.2d 692, 695 (Mo. App. 1992).

The employee testified that she continued to see doctors for low back pain including Dr. Fan and Dr. Bowen. She is currently going to Advanced Pain Center once a month and is receiving prescription medication and injections in her low back and left hip. The medical records as of February of 2015 show that Dr. Ahn was prescribing Voltaren Gel and Hydrocodone.

Dr. Wayne recommended that the employee become less reliant on pain medications, and recommended over-the-counter medications as needed. With regard to the left hip, Dr. Krause stated that the employee had a poor prognosis for complete resolution of the left hip bursitis and stated that if the samples of Celebrex helped, he would prescribe Celebrex.

It was Dr. Musich's opinion that the employee should continue to treat with pain management on an as-needed basis. He recommended that she wean from narcotic analgesics and use non-narcotic pain medications or other pain relief.

Based on a review of the evidence, I find that the employee has sustained her burden of proof that she is in need of additional treatment. I find that the employee is in need of future medical treatment to cure and relieve her from the effects of her February 17, 2010 work-related injury. The employer is therefore directed to provide the employee with all of the medical care that is reasonable and necessary to cure and relieve her from the effects of her work-related injuries pursuant to Section 287.140 RSMo.

Issue 3. Nature and extent of permanent disability which includes either permanent total disability or permanent partial disability against the employer.

The employee has alleged that she is permanently and totally disabled. I find that the employee did not meet her burden of proof that she is permanently and totally disabled.

The employee is a high school graduate and attended college for over two semesters. She completed a program at Metro Business College. Her past employment includes working in a supervisory capacity with purchasing, inventory control, scheduling, and payroll experience. She does not have any problems with reading, can do math including addition and subtraction and can make change.

The employee continued to work a light-duty position for over a year after the February 17, 2010 accident. It is important to note that with regard to the missed time between April of 2010 and March of 2011, she took a substantial amount of time off during the initial medical treatment including after the surgery, until she was released to return to light duty on June 2, 2010. This was during the time she was receiving temporary total disability from the employer. After she was released to light duty, she took off work for physical therapy visits, doctor appointments and the functional capacity evaluation. Approximately 20\% of the missed time between April of 2010 through March of 2011 was taking off work or leaving work early due to shoulder and low back pain. The employee applied for a receptionist position that was very light

duty where she would have been allowed to sit, get up, and move around as needed. The employee thought she would be able to perform that job.

I observed the employee during the hearing. After being on the record for about an hour the employee moved around in her seat, and then stood up. After an additional 45 minutes she moved around. The employee did not appear to be in a lot of pain.

Mr. England observed the employee during his evaluation. He stated that the employee was pleasant and would make a nice impression in a job interview. There were no observable pain behaviors. She was able to sit for around 40 minutes or so before she got up to walk around briefly before the testing. She did not have observable pain behaviors. She did fine during the testing. Mr. England did not see anything that would lead him to believe that an employer sitting across the desk from her would think she was really uncomfortable or something was wrong.

It was Dr. Krause's opinion that the employee did not need any restrictions due to her left hip and she had no permanent partial disability due to the left hip bursitis. She could work full work duty regarding the bursitis.

Dr. Wayne placed permanent restrictions of lifting no more than 25 pounds from floor to waist or from waist to shoulder level, lifting no more than 15 pounds above shoulder level, and she should rest five minutes every hour if necessary. The 25 pound restriction from the floor to waist was for an occasional lift and frequent lifting was limited to 15 pounds. The overhead 15 pound limitation was for both arms. Resting 5 minutes out of the hour is a type of alternating sitting and standing. It was his opinion that the employee had a 2 % permanent partial disability rating for the whole person attributable to the lower back and left hip complaints due to the work injury.

It was Dr. Coyle's opinion that the employee should not lift more than 20 pounds from the standpoint of her low back. It was his opinion that the employee had a 5\% permanent partial disability of the body as a whole at the lumbar spine due to the February 17, 2010 work injury.

It was Dr. Robson's opinion that the employee continue on a light work duty status which would be about 10-15 pounds lifting; and no repetitive bending, stooping, twisting or awkward positions.

It was Dr. Musich's opinion that as a direct result of the February 17, 2010 work accident and injury the employee sustained a 50 % permanent partial disability of the right upper extremity at the shoulder level; and a 40 % permanent partial disability of the person as a whole referable to the lumbosacral spine and pelvis. The employee should observe the permanent restrictions placed upon her by her treating physicians. It was his opinion that the combination of the disabilities is significantly greater than their simple sum and will continue to produce a chronic hindrance in her routine activities.

It was Mr. Weimholt's opinion that the employee is unable to function at either the full range of light or sedentary work. The employee reached part of light duty but not full because the light category would not take into account the 5 minutes of rest per hour. Having to rest 5

minutes out of every hour does not in and of itself take her out work. Mr. Weimholt did not think given her current level of restrictions there was any work she had done in her past that she would still be able to perform. Mr. Weimholt did not think the employee had transferrable job skills from her past relevant work that would assist her in obtaining other employment. It was Mr. Weimholt's opinion that the employee has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment. It was his opinion that there is no reasonable expectation that an employer, in the normal course of business, would hire her for any position, or that she would be able to perform the usual duties of any job that she is qualified to perform. It was Mr. Weimholt's opinion that the employee was permanently and totally disabled as a result of the February of 2010 injury.

After reviewing Mr. Weimholt's report, Dr. Musich issued a supplemental report stating that medically he agreed with Mr. Weimholt's opinion that the employee has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment. It was Dr. Musich's opinion that the employee is totally and permanently disabled as a result of February of 2010 work trauma.

Mr. England stated that the restrictions of the treating doctors including Dr. Wayne and Dr. Coyle were in the light or sedentary level. Dr. Musich stated that the employee should follow the treating doctor's restrictions. Dr. Robson's recommendation of avoiding bending, stooping and squatting would put her at less than a full range of light duty but not less than full range of sedentary. Mr. England stated that the employee has knowledge down to a light level of exertion as well as even some sedentary positions with regard to the type of work she has done in the past. The employee scored at a post high school level on reading and at high school level on math; and would be capable of additional skill development.

Mr. England listed various positions that were in the sedentary to light range that the employee would be suited for. It was Mr. England's opinion that all of those jobs fall within the limitations of the doctors, and many of those jobs allow the person to alternate sitting and standing through the day. Some of the skills that she developed throughout her work history would help her find a job in a light demand level within the restrictions. Based on her educational and vocational history, it was Mr. England's opinion that the employee would be qualified for positions at a light or sedentary level; and would have the ability to compete for a variety of work activity.

Based on a thorough review of the evidence, I find that on the issue of employability the opinions of Dr. Krause, Dr. Coyle, Dr. Wayne, Dr. Robson and Mr. England are persuasive and more persuasive than the opinions of Dr. Musich and Mr. Weimholt.

Based on the evidence, I find that the employee has failed to satisfy her burden of proof on her claimed permanent total disability. The evidence does not support a finding that the employee is unemployable in the open labor market. I find that the employee is not permanently and totally disabled. The employee's request for an award of permanent total disability is denied.

I find that the employee has sustained permanent partial disability as a result of the February 17, 2010 accident. I find that as a direct result of the February 17, 2010 accident the employee sustained a 25 % permanent partial disability of the body as a whole referable to the lumbar spine and left hip at the 400 week level and a 30 % permanent partial disability of the right shoulder at the 232 week level for a total of 169.6 weeks. The employer is ordered to pay the employee 169.6 weeks of compensation at the rate of $\ 265.69 per week for a total award of permanent partial disability of $\ 45,061.02.

Mark Moreland, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

Lawrence C. Kasten

Chief Administrative Law Judge

Division of Workers' Compensation