Rhonda Basford v. Whitmoor Country Club

Chondroplasty of the medial femoral condyle. Afterward, employee underwent a course of physical therapy. On April 22, 2014, Dr. Nogalski released employee to full-duty work.

On November 4, 2014, employee settled her claim against employer for the right knee injury consistent with a rating of 22.5% permanent partial disability of the right lower extremity at the 160-week level. On July 24, 2015, employee settled a claim against the Second Injury Fund for the combination of the right knee injury with her preexisting low back disability; this settlement agreement was also consistent with a rating of 22.5% permanent partial disability of the right knee.

In his award, the administrative law judge determined that the April 2013 right knee injury had not reached maximum medical improvement as of June 27, 2013, the date of the primary injury in this matter. Employee did not appeal this determination, and in her brief, provides no argument that her right knee injury of April 2013 had reached maximum medical improvement at the time of the primary injury. In his report, Dr. Berkin did not address the issue whether employee had reached maximum medical improvement with regard to the right knee injury as of June 27, 2013, or whether any disability referable to employee's right knee was permanent as of that date.

Employee credibly testified (and we so find) that the right knee surgery of February 2014 improved her symptoms by relieving her excruciating pain referable to the right knee injury, and that the physical therapy she underwent after the surgery helped to make her right leg a little bit stronger. We find that the right knee injury had not reached maximum medical improvement as of June 27, 2013, the date of the primary injury in this matter.

On June 27, 2013, employee suffered an injury at work when her left ring finger was crushed inside a garage door. Employee experienced immediate pain and swelling. Treating physicians diagnosed a left ring finger distal phalangeal fracture, and provided employee with a splint. Employee wore the splint for four weeks, and underwent some physical therapy.

Dr. Berkin rated the primary injury at 20% permanent partial disability of the left ring finger at the level of the metacarpophalangeal joint. Employee settled her claim against the employer consistent with a rating of 15% permanent partial disability of the left ring finger at the 30-week level. Employee continues to experience pain in her left ring finger with lifting. We find employee suffered a 15% permanent partial disability of the left ring finger at the 30-week level as a result of the primary injury.

Asked to describe any increased difficulties at work based on the combined effects of the primary injury to her left ring finger and her preexisting low back injury, employee testified that she now has pain in her finger, so she has to lift and carry things differently. Employee did not identify any way in which her difficulties referable to the left ring finger injury interact with any difficulty referable to the preexisting low back injury.

injury to result in any new or greater difficulty than that referable to the simple sum of limitations referable to both conditions.

Dr. Berkin, in his report, stated that the combination of employee's disabilities is significantly greater than their simple sum, and that a loading factor should be applied. However, Dr. Berkin did not specifically identify any new or enhanced difficulty or limitation that arose referable to an interaction of the effects of the primary injury and employee's preexisting low back condition, or quantify the extent of any such synergistic disability. In fact, apart from the wholly conclusory assertion that synergy exists and that a loading factor should be applied, Dr. Berkin did not provide any basis or explanation for these opinions. Consequently, we do not find Dr. Berkin's testimony on this point to be persuasive.

As noted above, employee's sole ongoing complaint referable to the left ring finger injury is that she occasionally experiences pain in her finger that has required her to change the way she lifts things at work. In our view, the effects of the primary injury are too minimal to combine in any meaningful way with employee's preexisting low back injury, or to produce a quantifiable measure of increased permanent partial disability referable to a synergistic interaction between these conditions. Ultimately, faced with a lack of persuasive evidence on this record, we find that employee's left ring finger injury of June 2013 does not combine synergistically with her preexisting disabling conditions of ill-being.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the Fund in all cases of permanent disability where there has been previous disability. The administrative law judge awarded permanent partial disability benefits to employee from the Second Injury Fund based upon a finding that her preexisting disability referable to the low back interacts synergistically with the disabling effects of her primary injury affecting the left ring finger. The administrative law judge excluded from his consideration any disability referable to the right knee injury of April 2013, based on his finding that the right knee injury had not reached maximum medical improvement as of the date of the primary injury in this matter.

We acknowledge employee's argument, in her brief, that she need not have demonstrated that her right knee injury had reached maximum medical improvement as of the occurrence of the primary injury. In support, employee cites case law holding that such a showing is not necessary in the context of a claim against the Second Injury Fund for permanent total disability benefits. See, e.g., Lewis v. Treasurer of Mo., 435 S.W.3d 144, 160 (Mo. App. 2014). We are not persuaded, as the claim presently before us is one for permanent partial disability benefits, and the applicable case law is clear that an employee must demonstrate the level of preexisting permanent partial disability referable to a prior condition existing as of the date of the primary injury in order to include such condition in any calculation of Second Injury Fund liability for permanent partial disability benefits. See, e.g., Miller v. Treasurer, 425 S.W.3d 218, 220-21 (Mo. App. 2014). Employee advances no argument why Miller and similar cases are not

Improve: Rhonda Basford

- 4 -

controlling here, nor does she argue that any disability referable to her right knee injury was permanent and quantifiable as of June 27, 2013.

We have found that employee's right knee injury of April 2013 had not reached maximum medical improvement as of the date of the primary injury in this matter. We conclude that the April 2013 right knee injury is properly excluded from consideration for purposes of assessing Second Injury Fund liability.

Turning to employee's preexisting low back condition, we have found that the record before us fails to persuasively demonstrate a synergistic interaction as between this condition and the subsequent compensable injury affecting the left ring finger.

[T]he claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. This is referred to as the "synergistic effect." If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability.

Winingear v. Treasurer of State, 474 S.W.3d 203, 207-08 (Mo. App. 2015).

In her testimony, employee did not describe any new or enhanced disability or limitation specifically referable to an interaction between her preexisting low back injury and the subsequent injury to her left ring finger. Employee does advance the expert medical opinion of Dr. Berkin that the combination of employee's disabilities is significantly greater than their simple sum, and that a loading factor should be applied, but we have deemed this opinion lacking persuasive force. We have long held that conclusory expert opinions, in the absence of any explanation or supporting evidence, are generally insufficient to satisfy the proponent's burden of proof; we are not persuaded to depart from this general policy here.

In sum, owing to the lack of persuasive evidence on the topic, we have not been persuaded to make a finding that the effects of employee's primary left ring finger injury and her preexisting low back disability combine in such a way as to result in greater or enhanced disability beyond the simple sum of disability referable to these conditions. Instead, we have found that there is no such synergistic interaction. We conclude, therefore, that the Second Injury Fund is not liable for permanent partial disability benefits.

We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because employee failed to demonstrate that the primary injury combines synergistically with her preexisting conditions of ill-being to result in any increased permanent partial disability.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued November 14, 2016, is attached solely for reference.

Given at Jefferson City, State of Missouri, this 12th day of May 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: June 27, 2013
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did 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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant, a concession stand server, suffered a crush injury to her left ring finger while closing a garage door.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left ring finger
14. Nature and extent of any permanent disability: 15 % permanent partial disability to the left ring finger at the 30 week level.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 6,565.33

Issued by DIVISION OF WORKERS' COMPENSATION

Employee:

Rhonda Basford

Injury No.: 13-064837

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 650.37
3. Weekly compensation rate: $\ 433.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: Yes

5.225 weeks of permanent partial disability from Second Injury Fund

$\ 2,265.46

TOTAL:

$\ 2,265.46

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant 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 claimant: James J. Knappenberger, Esq.

Employee: Rhonda Basford

Injury No.: 13-064837

Dependents: N/A

Employer: .Whitmoor Country Club (Settled)

Additional Party: Second Injury Fund

Insurer: Employers Preferred Insurance Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK

This workers' compensation case requires a determination of Second Injury Fund liability arising out of a work-related injury in which the claimant, a concession stand server, suffered a crush injury to her left ring finger while closing a garage door. The sole issue for determination is Second Injury Fund liability. The evidence compels an award for the claimant for additional permanent partial disability benefits from the Second Injury Fund.

At the hearing, the claimant testified in person and offered an affidavit from the claimant, a medical report from Shawn L. Berkin, D.O., two medical reports from Michael P. Nogalski, M.D., the claimant's Workers' Compensation settlement with his employer in this case and a settlement with the Second Injury Fund in a prior case, and various medical records. The defense offered no evidence beyond cross-examination of the claimant.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri. Any markings on the exhibits were present when offered into evidence. All parties waived any objections to venue.

On June 27, 2013, the claimant, a concession stand server, suffered a crush injury to her left ring finger while closing a garage door. On July 30, 2013, Dr. Crandall examined the claimant, found that she suffered a fractured left ring finger and splinted the finger. See Exhibit 16. The claimant's left ring finger is still a little sore at the first bend in the finger, and the knuckle gets sore when the left hand is used a lot. See Exhibit 1. The claimant settled the workers' compensation claim with the employer on the basis of a 15 % permanent partial disability to the left ring finger. See Exhibit 12.

Before this occurrence, the claimant suffered a low back injury while lifting, and an MRI scan on March 7, 2008, revealed a posterior disc herniation at L4/L5 impinging on the right L5 nerve root. See Exhibit 15. On March 13, 2008, Dr. Heim performed a right L4-6 microdiskectomy. See Exhibit 15. Dr. Berkin's straight leg test was positive for low back pain at 70 degrees on the right. See Exhibit 4. His range of motion test revealed reduced range of

motion between five and fifteen degrees. See Exhibit 4. He found tenderness over the paraspinal muscles lateral to the lumbar column. See Exhibit 4. He opined that the claimant suffered a 35 % permanent partial disability from the condition. See Exhibit 4.

On April 5, 2013, the claimant suffered an injury to her right knee at work and settled her workers' compensation claim with her employer on the basis of a 221 / 2 % of the right knee on November 4, 2014, in Injury No. 13-035354. See Exhibit 3. Additionally, The claimant settled her workers' compensation claim with the Second Injury Fund claim in Injury No. 13-035354 on the basis of a 221 / 2 % of the right knee plus 25 % of the back, entered July 24, 2015. See Exhibit 18 .

The claimant testified that her left ring finger is still sore and the soreness and pain increases when it is used more. Relating to her leg and right knee, she cannot straighten it, bending and lifting causes pain; it's more painful to grip and lift things than it was before the accident. She is frequently required to bend over and pick up items such as ice or food and various containers and boxes, and to reach, in the course of her work. She is frequently in the snack bar area by herself, and it can get very busy. She is on her feet virtually her entire shift. She has had to ask people to help now more often as opposed to previously. She had no previous injuries to her finger. She is also limited in tasks that she can do at home as well as work, and has constant pain in the areas of her left ring finger and her right knee. Her job requires her to walk, bend, and lift, and those actions require the combination of her knees as well as her hands.

Dr. Berkin examined the claimant on July 14, 2014, and opined: (1) The claimant's preexisting low back condition and right knee condition both represented hindrances to her employment or re-employment; (2) The combination of the claimant's disabilities is substantially greater disability than the simple sum; and (3) A loading factor should be added. See Exhibit 4.

To recover against the Second Injury Fund based upon two permanent partial disabilities, the claimant must prove the following:

1. The existence of a permanent partial disability pre-existing the present injury of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed. Section 287.220.1, RSMo 2000; Leutzinger v. Treasurer, 895 S.W.2d 591, 593 (Mo.App. E.D. 1995).
2. The extent of the permanent partial disability existing before the compensable injury. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D. 1999).
3. The extent of permanent partial disability resulting from the compensable injury. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D. 1999).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee:

Rhonda Basford

Injury No.: 13-064837

1. The extent of the overall permanent disability resulting from a combination of the two permanent partial disabilities. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D. 1999).
2. The disability caused by the combination of the two permanent partial disabilities is greater than that which would have resulted from the pre-existing disability plus the disability from the last injury, considered alone. Treasurer of the State of Missouri v. Witte, 414 S.W.3d 455 466, 467 (Mo. Banc 2010).
3. In cases arising after August 27, 1993, the extent of at least one of the pre-existing permanent partial disability injury must equal a minimum of fifty weeks of disability to "a body as a whole" or fifteen percent of a major extremity unless they combine to result in total and permanent disability. Section 287.220.1, RSMo 2000; Treasurer of the State of Missouri v. Witte, 414 S.W.3d 455 466, 467 (Mo. Banc 2010).

To analyze the impact of the 1993 amendment to the law, the courts have focused on the purposes and policies furthered by the statute:

The proper focus of the inquiry as to the nature of the prior disability is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition. That potential is what gives rise to prospective employers' incentive to discriminate. Thus, if the Second Injury Fund is to serve its acknowledged purpose, "previous disability" should be interpreted to mean a previously existing condition that a cautious employer could reasonably perceive as having the potential to combine with a work-related injury so as to produce a greater degree of disability than would occur in the absence of such condition. A condition satisfying this standard would, in the absence of a Second Injury Fund, constitute a hindrance or obstacle to employment or reemployment if the employee became unemployed. Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo.App. E.D. 1995).

Section 287.220.1, RSMo 1994, contains four distinct steps in calculating the compensation due an employee, and from what source:

1. The employer's liability is considered in isolation- "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no pre-existing disability."
2. Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered;
3. The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and

1. The balance becomes the responsibility of the Second Injury Fund. Nance v. Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. Sanders v. St. Clair Corp., 943 S.W.2d 12, 16 (Mo.App. S.D. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." Tiller v. 166 Auto Auction, 941 S.W.2d 863, 865 (Mo.App. S.D. 1997).

Based on the entire record, the claimant suffered a compensable work-related injury in 2013 resulting in a 15 % permanent partial disability to her left ring finger at the 30 week level ( 4.5 weeks). At the time the last injury was sustained, the claimant had a 25 % pre-existing permanent partial disability to her low back ( 100 weeks). The permanent partial disability from the last injury combines with the pre-existing permanent partial disability to create an overall disability that exceeds the simple sum of the permanent partial disabilities by 5 %.

The claimant suffered a right knee injury prior to this occurrence and had extensive medical and surgical treatment to the knee after this occurrence. None of the evidence demonstrates that the claimant achieved maximum medical improvement for her right knee injury before this occurrence. The defense argued persuasively in its brief that the permanent partial disability from the right knee was not part of the calculus for additional permanent partial disability benefits from the Second Injury Fund in this case:

Claimant's knee injury was not at MMI prior to the finger injury and should not be considered for Second Injury Fund purposes. Claimant's finger injury occurred on June 27, 2013. Claimant's knee injury reached MMI on April 22, 2014. Under the holdings of Hoven and Miller, preexisting injuries are not considered for Second Injury Fund PPD liability if they have not reached a state of maximum medical improvement. Hoven v. Treasurer, 414 S.W.3d 676 (Mo. App. 2013), Miller v. Treasurer, 425 S.W.3d 218 (Mo. App. 2014). Since the knee injury did not reach MMI until after the finger injury, it cannot be considered in any SIF PPD calculation. See defense brief.

The defense position is well taken. The chronology of events is important.

The difficulty with the claimant's case is that the claimant's forensic expert, Dr Berkin, evaluated the claimant's permanent partial disability for her April 5, 2013, knee injury on June 9, 2014, after the surgical repair that occurred many months after this occurrence. Had Dr. Berkin evaluated the claimant's knee injury for permanent partial disability based on the medical records before this occurrence, the claimant may have had a prima facie case to include the prior knee condition in the equation, but the evaluation of the claimant's knee condition is clearly based on

her condition after the surgical repair in February 2014 and recovery from the surgical procedure. Thus, the claimant has not presented sufficient evidence to determine the extent of permanent partial disability as of the date of this occurrence.

The defense also argues in its well written brief that the claimant's permanent partial disability to her ring finger is not eligible for additional permanent partial disability benefits from the Second Injury Fund, because the forensic medical evidence from her expert is not credible and that the claim suffered no substantial disability from the occurrence:

Claimant's primary injury does not combine synergistically with her preexisting conditions. Claimant suffered an injury to her left ring finger that she settled with her employer for 15 % of the finger or 4.5 weeks. (Ex. 12). She alleges preexisting disability to her right knee and back. (Ex. 18). In order to recover from the Second Injury Fund for permanent partial disability, Claimant must show that her work injury and preexisting disability combine to cause a greater degree of disability than the simple sum of the disabilities viewed independently. Hoven v. Treasurer, 414 S.W.3d 676, 678 (Mo. App. 2013). This combination is referred to as the "synergistic effect." Pierson v. Treasurer, 126 S.W.3d 386, 388-89 (Mo. Banc 2004). The failure to prove synergistic combination is proper grounds for denying Fund liability. Winingear v. Treasurer, 474 S.W.3d 203, 208 (Mo. App. 2015). It is the Claimant's burden to prove all elements of his claim. Hoven at 678.

Here, similar to the facts in Winingear, Claimant failed to prove her claim because she failed to prove synergy. Claimant's testimony does not support a finding of synergy. Claimant testified that her finger hurts when lifting or driving. She testified that she had to change the way she lifts with her hand to avoid pain. She offered no testimony that the pain or altered positioning of her hand creates greater problems with her knee or back.

Claimant's medical evidence fails to prove a synergistic combination of her injuries. Claimant offered the opinion of Dr. Shawn Berkin. (Ex. 4). Dr. Berkin examined Claimant's finger and provided a rating. (Ex. 4). Dr. Berkin's examination failed to show any significant disability to Claimant's finger. Dr. Berkin noted on his left hand exam that there was no swelling or muscle wasting of the hand; no swelling or deformity of the left ring finger; full range of motion of the left ring finger; no tenderness of the hand or wrist; and full range of motion of the wrist. (Ex. 4, p.10). Dr. Berkin's only positive finding was some localized tenderness over the distal phalanx of the finger. Id. Claimant treated for the finger with Dr. Evan Crandall. (Ex. 16). Dr. Crandall noted on his final exam that Claimant had a well-healed left ring fingertip tuft fracture with no evidence of non-union. (Ex. 16, April 8, 2014, report). He found full grip, flexion and range of motion and rated the injury at 2 percent of the finger. Id. The finger injury is too minimal to combine with any other injury to create synergy.

Dr. Berkin's combination opinion is vague to the point of being valueless in this inquiry. Dr. Berkin offers ratings for both Claimant's knee injury and her

finger injury. (Ex. 4, p.12). Dr. Berkin then goes on to rate her preexisting low back condition. (Ex. 4, p.12). Following that rating, Dr. Berkin states, "The combination of her disabilities is significantly greater than their simple sum and a loading factor should be applied." (Ex. 4, p.12). Dr. Berkin does not specifically state that the finger injury combines with the knee or back to create a synergistic effect. His vague synergy opinion could apply equally to the combination of the knee injury with the preexisting back. He most certainly offers no explanation of how the minor finger injury combines with the back or the knee to create overall greater disability than the simple sum.

The facts of this case are similar to those of Winingear. In Winingear, the Claimant offered a statement without any explanation from Dr. Raymond Cohen that the disabilities combine synergistically and no convincing testimony from the Claimant as to combination. Winingear at 209. In Winingear, the Court determined that the Claimant had not proved synergy, and benefits were denied. So, too, should they be denied here. See defense brief.

While Dr. Berkin found that the claimant had full range of motion in her finger, he also found that the claimant had localized tenderness over the distal phalanx contrary to the defense assertions in its brief. See Exhibit 4. This appears to be consistent with the claimant's affidavit and her testimony. While the permanent partial disability is not totally disabling, the evidence suggests that the claimant sustained permanent partial disability from the occurrence.

The credible evidence establishes that the last injury, combined with the pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. The claimant testified credibly about significant ongoing complaints associated with these injuries. The claimant changed how she performs many activities both at home and at work due to the combination of the problems. The claimant testified that as a result of the combination of the problems, she had limited the way she lifts objects at work and at home. In particular, she testified that her work involves lifting products to stock her snack cart and five-gallon water jugs filed with ice or water. The lifting would appear to involve her low back and her grip in her hands. If she has the pain and loss of use in her low back and her grip in her left hand, then Dr. Berkin's conclusion that the combination of the claimant's disabilities in her left hand and her low back is substantially greater disability than the simple sum would appear to be credible in this case. See Exhibit 4.

Therefore, the Second Injury Fund bears liability for 5.225 weeks of permanent partial disability benefits.

Made by:

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation