Connie Carty v. Southeast Missouri Mental Health Center-State of Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-089630

Employee: Connie J. Carty

Employer: Southeast Missouri Mental Health Center-State of Missouri

Insurer: CARO

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 20, 2017. The award and decision of Administrative Law Judge Maureen Tilley, issued April 20, 2017, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of 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 $\qquad 18 ^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Connie J. Carty

Injury No. 11-089630

Dependents: N/A

Employer: Southeast Missouri Mental Health Center-State of Missouri

Additional Party: Second Injury Fund

Insurer: CARO

Hearing Date: January 30, 2017

Checked by: MT/kg

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? November 8, 2011.
5. State location where accident occurred or occupational disease contracted: Farmington, St. Francois 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.

On January 30, 2017, the employee, Connie J. Carty ("Employee"), appeared in person and with her attorney, Kenneth A. Seufert, for a hearing for a final award. Southeast Missouri Mental Health Center/Office of Administration ("Employer") was represented at the hearing by Assistant Attorney General, Rachel A. Harris. The Second Injury Fund appeared through counsel, Assistant Attorney General Mathew Kincade. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was duly qualified as a self-insured employer through the Central Accident Reporting Office.
2. Covered Employee: On or about the date of the alleged accident, Employee was an employee of the employer and was working under the Workers' Compensation Act.
3. Accident: On or about November 8, 2011, the employee sustained an accident arising out of and in the course of her employment.
4. Notice: Employer had notice of the employee's accident.
5. Statute of Limitations: The employee's claim was filed within time allowed by law.
6. Average weekly wage and rate: At the time of the accident, Employee had an average weekly wage of $\ 436.15, and a PTD/TTD/PPD rate of 290.77 .
7. Medical causation: Employee's injuries were medically causally related to the accident on November 8, 2011.
8. Medical aid furnished by Employer-Insurer: Employer-Insurer furnished medical aid in the amount of $\ 24,462.02.
9. Temporary Disability paid by Employer-Insurer: Employer-Insurer paid \$4,112.33 for temporary disability from November 9, 2011 through February 29, 2012.

1. Previously incurred medical aid: Whether Employee is entitled to previously incurred medical aid in the form of pharmacy bills in the amount of $\ 290.02, and whether this aid was authorized, necessary, and causally related to the primary injury.
2. Future medical aid: Whether Employee is entitled to future medical aid.
3. Permanent total disability: Employee is making a claim against the employer-insurer for permanent total disability, or in the alternative, they are making a claim against the Second Injury Fund for permanent total disability.
4. Permanent partial disability: Employee is making a claim against the Second Injury Fund for permanent partial disability, or in the alternative against the employer for permanent partial disability.

The following exhibits were offered and admitted into evidence:

Exhibit 1-A: Report of David T. Volarich, D.O. dated October 13, 2014

Exhibit 1-B: Addendum Report of David T. Volarich, D.O. dated February 18, 2015

Exhibit 1-C: Curriculum Vitae of David T. Volarich, D.O.

Exhibit 1-D: Records provided to David T. Volarich, D.O.

Exhibit 1-E: Second Addendum Report of David T. Volarich, D.O. dated June 20, 2016

Exhibit 1-F: Deposition of David T. Volarich, D.O. dated December 11, 2015

Exhibit 2-A: Report of Delores Gonzalez dated January 2, 2015

Exhibit 2-B: Curriculum Vitae of Delores Gonzalez

Exhibit 2-C: Reports provided to Delores Gonzalez

Exhibit 2-D: Deposition of Delores Gonzalez dated August 26, 2015

Exhibit 3: Report of Injury (DOI: 11-08-2011)

Exhibit 4: Claim for Compensation (Injury No. 11-089630)

Exhibit 5: Medical History of Connie Carty regarding the injury she sustained on 11-082011 along with medical records from the following care providers attached:

a. Mineral Area Regional Medical Center

b. St. Louis University Hospital

c. Dirk Alander, M.D.

d. James Coyle, M.D., L.L.C.

Exhibit 6: Medical History of Connie Carty prior to 11-08-2011 along with medical records from the following care providers attached:

a. Mineral Area Regional Medical Center

b. Michael Chabot, D.O.

c. Imaging Partners

d. Harry Harness, D.O./Michelle Allen, N.P. (04-09-09 through 02-01-2013)

e. Harry Harness, D.O./Michelle Allen, N.P. (04-16-2013 through 10-29-2013)

Exhibit 7: Education History

Exhibit 8: Work History

Exhibit 9: Notice of Award from Social Security Administration Retirement, Survivors and Disability Insurance dated 01-10-2014

Exhibit 10: Pharmacy Records

Exhibit 11: Additional Records from Missouri Division of Workers' Compensation

Exhibit 12: Records from Missouri Division of Workers' Compensation

Exhibit 13: Patient Intake for James J. Coyle, M.D. medical evaluation

Exhibit 14: MRI of the Lumbar Spine without contrast dated August 1, 2013; taken at Mineral Area Regional Medical Center

Exhibit 15: Not admitted

Exhibit 16: Prescriptions from Walgreens dated 01/01/2014 through 01/26/2017

Exhibit 17: Medical Records from Family Care Clinic

Exhibit 18: Pharmacy expenses: Totals

Employer objected to the admittance of Exhibit 15. This objection was sustained on the record.

1. Exhibit A: Deposition of Mr. James England (11-10-2015)
2. Exhibit B: Deposition of James Coyle, M.D. (11-1-2016)

The Second Injury Fund did not present any exhibits.

Employee was born on July 30, 1950 and was 66 years old as of the date of the hearing. Employee testified that she graduated high school and later underwent CNA and CMT training. Employee worked for Employer as an Activity Aide II from 2002 up to July 30, 2013. Leading up to the work injury on November 8, 2011, Employee was responsible for coordinating recreational activity programs for patients. Employee also assisted patients in getting to and from locations in the facility. Employee was responsible for setting up rooms for such programs and was also responsible for any clean-up duties. Employee performed a combination of sitting, standing, and walking. Employee was required to lift lighter objects usually up to 20 pounds. Employee testified that she had to open and close heavy doors in the facility. Employee also had to periodically participate in defensive tactics training while working for Employer.

On November 8, 2011, Employee injured her low back while participating in defensive tactics training. Employee testified that she lost her balance and fell to the ground on her buttocks. Employee further noted that she experienced a popping sensation in her low back with an onset of severe pain in her back. Employee was initially transported to Mineral Area Regional Medical Center following the accident. CT scans revealed compression fractures at the superior end plate at L1 with approximately 5 mm retropulsion of the superior end plate upon the anterior thecal sac, in addition to degenerative disk height loss at L4-5.

Employee continued her medical treatment in reference to the work injury with Dr. Dirk H. Alander at St. Louis University Hospital. Dr. Alander reviewed the CT scan and opined that Employee had an L2 burst fracture with a 5 mm fragment retropulsion into the spinal canal. Dr. Alander admitted Employee into the hospital, prescribed pain medication, and also placed Employee in a TLSO brace. Dr. Alander eventually discharged Employee on November 11, 2011. However, Employee returned to Dr. Dirk Alander on November 23, 2011 due to continuing low back pain. While Employee noted she had prior low back pain, she expressed to Dr. Alander that her low back pain following the work injury was substantially different in nature and location from her prior symptoms. X-Rays failed to reveal additional retropulsion of the bony material into the canal. Dr. Alander continued Employee's pain medication treatment and brace use. Dr. Alander also recommended that Employee participate in physical therapy.

Employee briefly participated in physical therapy at PRORehab in March 2012. On March 26, 2012, Employee reported increased soreness after working on a flower bed in which she bent over for an unknown amount of times. Employee reported to medical staff that she did not think she overexerted herself during this incident. Dr. Alander eventually allowed Employee to return to light-duty work, in which Employee still reported consistent low back pain around the area of her L2 burst fracture. Dr. Alander released Employee to full-duty work on May 23, 2012 while noting that Employee still presented with ongoing low back stiffness. Employee

testified that after a couple of days at work, she realized that she could not do her job. Employee stated that her pain level was up to an 8 when she was trying to do her job. Employee stated that she then asked for more treatment. She was eventually sent to Dr. Coyle for a second opinion. Employee stated that she retired from her job on July 30, 2013.

Employee presented to Nurse Practitioner Allen on November 1, 2012, due to increased low back pain. Employee also returned to Nurse Practitioner Allen on July 11, 2013, due to increased low back pain that was non-responsive to Tramadol. She further reported increased difficulties at work due to low back pain. An MRI of the lumbar spine obtained on August 1, 2013, revealed a moderate chronic superior L2 endplate compression deformity with posteriorsuperior cortical buckling, but no acute lumbar vertebral body compression or fracture. The MRI also revealed multi-level degenerative changes without significant spinal stenosis. A subsequent examination with Nurse Practitioner Allen on October 28, 2013, further revealed tenderness to palpitation in Employee's middle and lower back area in addition to muscle spasms. Employee did not obtain any direct, additional treatment with respect to the work injury.

Employee testified that she sustained injuries prior to the work injury of November 8, 2011.

Employee sustained an injury to her left knee in June 2005. Employee treated with Dr. Scott VanNess for this injury, in which he diagnosed Employee with a torn medial meniscus. Dr. VanNess performed a left knee arthroscopy, partial medial meniscectomy, and chondroplasty of the patella, patellofemoral groove, and medial femoral condyle on June 10, 2005. Dr. VanNess did not impose any permanent restrictions.

Employee testified that she continued to have ongoing discomfort and periodic stiffness in the left knee following Dr. VanNess's surgery. She further testified that bending or stooping especially exacerbated her left knee symptoms. However, Employee testified that she only selftreated with Tylenol on an as-needed basis referable to the left knee leading up to the work injury. Employee noted that she did not play ball with the patients following her left knee injury, but was performing all of the basic functions of her job leading up to the work injury. She did not require additional medical care and did not miss any additional time from work due to the left knee injury. She denied requiring special accommodations or co-worker assistance at work for her left knee condition.

Employee testified that she treated with Dr. Michael C. Chabot in January 2008 due to low back pain, in which she was off work since December 21, 2007. Dr. Chabot noted that Employee had a history of intermittent low back pain with some lower extremity symptomatology. Dr. Chabot noted that Employee was using Vicodin for pain during this time period. An MRI revealed disc height loss with an asymmetric annular disc bulge at L4-5 on the right that caused mild central canal stenosis, moderate to severe right foraminal stenosis, and displacement of the right L4 nerve root. The MRI also revealed a central broad based disc protrusion at L5-S1 that caused mild bilateral foraminal stenosis and mild central canal stenosis. Employee testified that she underwent two injections in her low back which offered her some relief. Dr. Chabot eventually released her from his care on February 18, 2008.

Employee testified that she returned to full-duty work, but continued to have some symptoms of occasional numbness and tingling in her low back and right leg which was more pronounced and noticeable towards the end of a work day. Employee testified that her back pain following her treatment with Dr. Chabot was a stabbing-type of pain, and that her radicular symptoms were not constant. Leading up to the primary injury, Employee testified that she missed on average 2 to 4 days of work per month due to low back pain. Employee noted she was able to drive her work commute leading up to the work injury. Employee did not provide testimony that she continued to take Vicodin beyond her treatment with Dr. Chabot. Dr. Chabot did not provide any permanent restrictions.

Employee denied having received formal psychological treatment from a psychologist or a psychiatrist leading up to the work injury.

Employee testified that the pain from her L2 burst fracture was distinct and separate from her prior low back symptoms at the L4-5 and L5-S1 levels. Employee noted that her pain from the L2 burst fracture was much higher than her prior low back pain. Employee denied experiencing prior low back symptoms or pain near the L2 level as she does currently.

Employee testified that her L2 burst fracture pain was severe, dull, and constant in nature, more severe than her L4-5 and L5-S1 pain, wrapped into the side of both hips, and was exacerbated by performing any physical activity. Employee currently takes narcotic medications to help control her pain in her low back with reference to the L2 burst fracture. Employee further testified that she only started to use a back brace and a cane following her L2 burst fracture. Employee testified that she has to recline and take naps throughout the work day where she did not have to do so prior to the L2 burst fracture. Employee also attributed the complete elimination of hobbies such as gardening to her physical condition following the L2 burst fracture.

Prior to the work injury, Employee testified that she was able to stand for about 30-45 minutes at a time before sitting down, and could sit for roughly 15-20 minutes. Currently, she can only stand for roughly 10 minutes at a time and has to walk with a cane.

Employee continued to treat to the present with her primary care physician, Harry Harness, D.O., and nurse practitioner, Michelle Allen, for symptoms and, specifically, pain caused by the L-2 burst fracture. Dr. Harness presently prescribes for her Hydrocodone, Carisoprodol, Alprazolam/Xanax, Chlorzoxazone and Sertraline/Zoloft.

Previous to November 08, 2011, Employee took Tramadol for pain due to her L4-L5 and L5-S1 low back pain and her left knee. She also took Zoloft for depression. Subsequent to November 08, 2011, she increased her Tramadol and eventually replaced that with Hydrocodone and added other medications for pain management including Carisoprodol, Alprazolam/Xanax, Chlorzoxazone and Sertraline/Zoloft. Employee testified each medication was used for treatment of her L2 burst fracture; it also helped with her pre-existing low back and left knee problems. She identified the bills and amounts that she attributed to those medications.

Employee saw Dr. Volarich for an independent medical examination on October 13, 2014. Dr. Volarich noted Employee's pre-existing back problems and her treatment with Dr. Chabot in 2008. He noted that Employee received steroid injections which provided some improvement, but that Employee continued to experience ongoing pain in her right lumbosacral region occasionally to her buttock, and some weakness in her legs. She was diagnosed with degenerative disc disease.

Dr. Volarich also noted that Dr. Alander found that Employee's pain from the November 8, 2011 injury was different than her prior back pain and did not radiate down her legs. Dr. Volarich listed out some of Employee's complaints regarding her back. She complained of girdle type pain around her waist in her low back area. She denied any leg pain. Stooping, squatting, running, kneeling and climbing steps were difficult. She had special rails installed in the bathroom and sits down to put on her clothing. She no longer does yard work. She also naps during the day. As for her prior back pain, she said it was more of a stabbing pain down into her leg. She told Dr. Volarich that prior to the November 8, 2011 incident she was able to work full duty and after a busy day had stiffness and radicular pain in her right leg. He later states she told him her radicular symptoms resolved.

Dr. Volarich also noted Employee's pre-existing left knee symptoms. Prior to and after the November 2011 injury, Employee had discomfort and loss of motion in her left knee. This created difficulties with stooping, squatting, and exercising with residents. Employee took over-the-counter medications and was working, though at a slower pace due to her knee. He also noted that while Employee was able to do her job prior to November 8, 2011, she had pain while performing her job due to her pre-existing conditions.

Dr. Volarich opined that Employee was at MMI for her November 8, 2011 injury. He provided a permanent partial disability rating of 35 % body as a whole for the lumbar spine due to Employee's L2 burst fracture. As for Employee's pre-existing conditions, Dr. Volarich provided a 15 % body as a whole rating for Employee's lumbar spine due to degenerative disc disease and L4-5 disc bulge. He also provided a 20\% rating for Employee's pre-existing left knee. Dr. Volarich also stated that Employee has some disability for Employee's subsequent ankle fracture, but does not provide a rating.

Dr. Volarich concluded that Employee is permanently and totally disabled as a direct result of the work-related injury of November 8, 2011 standing alone. He states that there is no question that she had some pre-existing disability in her low back because of spinal stenosis and treatment that was required in 2008 as well as in the left knee from the arthroscopic repair that was required in 2005, but that the severity of the November 8, 2011 work injury far outweighs any pre-existing disabilities that she may have had. In support of this position, Dr. Volarich states that Employee told him that had she not hurt her back on November 8, 2011 she would still be working.

Dr. Volarich indicated that Employee would need ongoing care for her pain syndrome, but was not a candidate for surgery. Additionally, Dr. Volarich issued restrictions. Regarding

her pre-existing knee and back, Dr. Volarich stated that Employee could work full duty to tolerance. Regarding her injury of November 8, 2011, Dr. Volarich issued the following restrictions:

- Avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to an as needed basis;

- Avoid handling any weight over 20 pounds, and limit this task to an occasional basis;

- No handling weight over her head or away from her body, nor should she carry weight over long distances or uneven terrain;

- Avoid remaining in a fixed position for any more than about 20-30 minutes at a time including both sitting and standing;

- Should change positions frequently to maximize comfort and rest when needed; and

- Advised to pursue an appropriate exercise program.

Dr. Volarich testified that he thought Employee's pre-existing low back and left knee problems were a hindrance to her ability to work. Dr. Volarich also opined that Employee would need future medical care in the form of pain management. Dr. Volarich stated that in order to maintain her current state, she will require ongoing care for her pain syndrome using modalities including but not limited to narcotics and non-narcotic medications (NSAID's), muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of her complaints.

On February 18, 2015, Dr. Volarich issued an addendum to his October 2014 report. He stated that there is no question that Employee would also be considered permanently and totally disabled if her pre-existing medical conditions were considered in combination with her November 8, 2011 work-related injury. However, Dr. Volarich continued to stand by his original opinion that Employee was permanently and totally disabled due to the November 8, 2011 injury alone, as voiced in the October 13, 2014 IME. Dr. Volarich issued a Second Addendum to his October 2014 IME on June 20, 2016. In this addendum, Dr. Volarich gave an opinion listing the synergy between Employee's pre-existing low back and left knee and her primary injury.

Dolores Gonzalez performed a vocational rehabilitation evaluation on Employee on December 16, 2014. Ms. Gonzalez compiled her findings in a report dated January 2, 2015. Ms. Gonzalez felt that despite Employee's prior education and vocational history, she "did not have any skills transferable to jobs because of her severely reduced residual functional capacity." (Exhibit 2-A, p. 14). Ms. Gonzalez noted that while Employee did not present with any kind of learning disability, her test scores on the Wide Range Achievement Test Fourth Edition indicated that Employee would "not be expected to assimilate to a new work environment or learning situation that required basic reading, spelling, and math skills. She would perform adequately in a clerical position that required basic reading, sentence comprehension, spelling, or math computation." (Id.)

Ms. Gonzalez opined that Employee would be able to return to her past work when abiding by the restrictions of Dr. Alander and Dr. Coyle. However, when considering the restrictions recommended by Dr. Volarich, Ms. Gonzalez opined that Employee would be placed in a capacity that falls below the sedentary work level. Ms. Gonzalez opined that Employee was

unable to compete in the open labor market due to the work injury in combination with her preexisting disabilities. In her deposition, Ms. Gonzalez testified about the significance of the limitations that Dr. Volarich provided with regard to the spine with respect to the work-related injuries after the November 8, 2011 injury. Ms. Gonzalez stated that the vocational significance is that the person would need to be able to rest at will, and if a person needs to rest at will, they would need to be accommodated, and if the person is off task and resting and not working in a competitive rate, then they're not going to be able to maintain competitive employment. Ms. Gonzalez agreed that if the need for Employee to rest was caused by the last injury alone, then her opinion as to why Employee was permanently disabled would be that the Employee was permanently disabled because of the last injury alone.

After reviewing the report of Ms. Gonzalez, Dr. Volarich still opined that Employee was permanently and totally disabled due to the last injury in isolation.

Dr. James Coyle performed an IME on behalf of Employer on or around April 10, 2013. Dr. Coyle's impression was that Employee sustained an acute L2 vertebral body fracture, and that radiographic evidence was consistent with pre-existing osteoporosis. Dr. Coyle opined that Employee's primary complaints were referable to spinal stenosis in addition to degenerative changes. Dr. Coyle did not provide any ratings or assessments or disability for Employee's spine prior to the work injury. In direct reference to the work injury, Dr. Coyle opined that Employee sustained 15 % PPD BAW.

Mr. James England performed a vocational rehabilitation evaluation on Employee on behalf of Employer on or around June 11, 2015. Mr. England prepared a report dated July 6, 2015, compiling his findings and opinions.

Mr. England noted that Employee's attempt to work for approximately a year beyond the work injury was not an unsuccessful work attempt (Exhibit A, Report p. 14). However, Mr. England also felt as if Employee's back deteriorated further. Mr. England opined that Employee was permanently and totally disabled due to the effects of the work injury in combination with her pre-existing medical problems, noting that he was "not trying to argue with Dr. Volarich." (Id.). However, Mr. England noted that he did not have any information on whether Employee's reason for leaving work was due to her "old symptoms" or "new symptoms" (Exhibit A, p. 46 Lines 11-25), nor did he parse out the nature of Employee's lumbar symptoms.

In his deposition, Mr. England testified that he would defer to a medical expert in terms of medical causation as well as the origin behind recommended restrictions. Mr. England testified that Employee would be employable under Dr. Alander's lack of restrictions, and unemployable based on Dr. Volarich's restrictions.

Employee seeks an award of $\ 290.02 for her cost and expense of prescription medications.

Dr. Volarich testified that Employee will need such medications and they are reasonably required to cure and relieve the effects of the L2 burst fracture.

Employer argues said medication was not authorized by Employee's treating physician, i.e., Dr. Alander, or the employer's second opinion/rating by Dr. Coyle.

Both doctors released Employee without any follow-up appointments or method to obtain medication. Each found her at maximum medical improvement and did not offer her pain management.

After release by Dr. Alander, Employee had an Independent Medical evaluation with Dr. Coyle. Dr. Coyle determined she had a permanent partial disability of 15 % of the body as a whole. Based on his rating, it appears that Dr. Coyle believed Employee remained symptomatic. Dr. Coyle assessed 15 % permanent partial disability. He also noted worsening pain that was relieved by resting and reclining.

The claim for previously incurred medical aid was disputed by Employer-Insurer as to authorization. The employer, having failed to offer any follow-up treatment including pain management, has effectively denied the medical treatment. Therefore, the next question is whether the employee needs the pain management.

Dr. Volarich credibly opined that Employee will require prescription medication in order to maintain her current state.

Employee continued to treat to the present with her primary care physician, Harry Harness, D.O., and nurse practitioner, Michelle Allen, for symptoms and, specifically, pain caused by the L-2 burst fracture. Dr. Harness presently prescribes for her Hydrocodone, Carisoprodol, Alprazolam/Xanax, Chlorzoxazone and Sertraline/Zoloft.

Based upon all the evidence presented, I find that the prescription medication that employee is seeking reimbursement for was necessary to cure and relieve the effects of Employee's injury. Furthermore, I find that the need for the medication was medically causally related to the injury that Employee sustained at work. Based on all of the evidence presented, I find that Employee is entitled to past medical expenses of $\ 290.02 for prescription medications reasonably required to cure and relieve the effects of the work-related injury of November 8, 2011. The employer is directed to pay to the employee the sum of $\ 290.02 for previously incurred medical expenses.

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).

Employee continued to treat to the present with her primary care physician, Harry Harness, D.O., and nurse practitioner, Michelle Allen, for symptoms and, specifically, pain caused by the L-2 burst fracture. Dr. Harness presently prescribes for her Hydrocodone, Carisoprodol, Alprazolam/Xanax, Chlorzoxazone and Sertraline/Zoloft.

Dr. Coyle, who performed a medical evaluation for the Employer on April 13, 2013, placed Employee at maximum medical improvement and offered no additional treatment except an offer of a CT scan. He rated her at 15 % permanent partial disability of the body as a whole attributable to the nature of her injury, as well as her ongoing symptoms of pain relieved only by rest and reclining.

It was Dr. Volarich's opinion that due to the November 8, 2011 work-related injury, the employee was in need of future medical treatment. It was his opinion that due to her pain, she needs ongoing pain management, including narcotics to control her symptoms. This pain management was related to her work injury of November 8, 2011.

Based on all of the evidence presented, I find the opinion of Dr. Volarich is more persuasive than the opinions of Dr. Coyle. I find that Employee is in need of additional medical care to cure and relieve her symptoms from the effects of the November 8, 2011 work accident and injuries. The employer-insurer is ordered to provide to the employee all the medical treatment that is reasonably necessary to cure and relieve her symptoms from the effects of her work-related injury pursuant to Section 287.140 RSMo., including but not limited to pain management as recommended by Dr. Volarich.

The term "Total Disability" in Section 287.020.7 RSMo., means inability to return to any employment and not merely inability to return to the employment in which the Employee was engaged at the time of the accident. The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. See Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo. App. 1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. See Reiner v. Treasurer of the State of Missouri, 837 S.W.2d 363, 367 (Mo. App. 1992). Total disability means the "inability to return to any reasonable or normal employment." An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. See Brown v. Treasurer of State of Missouri, 795 S.W.2d 479, 483 (Mo. App. 1990). The question is whether any employer in the usual course of business would reasonably be expected to employ the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which he or she entered. See Reiner at 367, Thornton v. Haas Bakery, 858

S.W.2d 831, 834 (Mo. App. 1993), and Garcia v. St. Louis County, 916 S.W.2d 263 (Mo. App. 1995).

The first question that must be addressed is whether the employee is permanently and totally disabled.

I find that the employee was a credible and persuasive witness on the issue of permanent total disability. The employee offered detailed testimony concerning the impact her conditions have had on her daily ability to function in the workplace through July 30, 2013, and thereafter at home. Her testimony supports a conclusion that the employee will not be able to compete in the open labor market.

There is both medical and vocational evidence that addresses whether the employee is permanently and totally disabled.

Employee sustained an L-2 burst fracture when she fell on November 8, 2011. She was immobilized and transported by ambulance to a local hospital and then transferred to St. Louis University Hospital and was admitted for 3 to 4 days. She treated with Dr. Alander from November 8, 2011 through May 23, 2012. She was off work through February 13, 2012 and only returned to work at that time on limited duty. She only obtained a full release on May 23, 2012, the last day of her treatment by Dr. Alander.

Employee testified that Employee sought additional treatment after returning to full duty. Dr. Coyle provided his second opinion on April 10, 2013. Dr. Coyle described in his report that Employee suffered from worsening pain that was relieved only by sitting or reclining. He assessed a 15 % permanent partial disability of the body as a whole attributed to the L-2 burst fracture, treated conservatively. No further treatment was offered for pain. However, Dr. Coyle documented that she was taking medication for pain at the time of her appointment.

Dr. Volarich performed an evaluation on October 13, 2014. He determined Employee's disabilities as follows:

1. Pertaining to the work injury of November 8, 2011: 35\% permanent partial disability of the body as a whole rated at the lumbar spine due to the L-2 burst fracture with said rating including back pain, lost motion, recurrent right buttocks, parasthesias and pain.
2. Her pre-existing permanent disability of 15 % due to the lumbar spine due to degenerative disc disease at L4-5 and L5-S1 causing spinal stenosis and right leg radicular symptoms. That rating also accounted for pre-existing back pain and loss of motion.
3. A 20 % permanent partial disability for pre-existing left knee due to a torn medial meniscus that required arthroscopic repair. This rating accounted for ongoing pain, crepitus, weakness and loss of motion of the left lower extremity.

Dr. Volarich also opined on limitations and restrictions due to the L-2 burst fracture after November 8, 2011, including the following:

1. She is advised to avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to an as needed basis.
2. She should not handle any weight greater than 20 pounds, and limit this task to an occasional basis assuming proper lifting techniques.
3. She should not handle weight over her head or away from her body, nor should she carry weight over long distances or uneven terrain.
4. She is advised to avoid remaining in a fixed position for any more than about 20-30 minutes at a time including both sitting and standing.
5. She should change positions frequently to maximize comfort and rest when needed.
6. She is advised to pursue an appropriate stretching, strengthening, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking or swimming to tolerance daily.

Prior to November 8, 2011, Dr. Volarich felt that Employee could have worked to tolerance with regard to her L4-5 and L5-S1 degenerative disc disease/spinal stenosis, as well as the same for her left knee.

In setting forth what he believed were reasonable limitations and restrictions, Dr. Volarich specifically advised that she should change positions frequently to maximize comfort and rest when needed.

Delores Gonzalez, a vocational rehabilitation counselor who evaluated the employee on behalf of the employee's attorney, noted Employee's need to rest during the day at least two times lasting up to 45 minutes to an hour. It was Gonzalez's opinion that assuming the trier of fact found that the need to rest was due to the last injury of November 8, 2011, then the total disability was caused by the last injury alone. On the other hand, if it was a combination of her low back pain due to the November 8, 2011 injury, as well as her pre-existing low back at L4-5 and L5-S1, as well as her left knee, then it would be a combination of Employee's pre-existing injuries and primary injury.

James England, a vocational rehabilitation counselor who performed a vocational evaluation of Employee at the request of the employer, opined that Employee continued to suffer from chronic pain that required the use of narcotics, as well as other medications. It was Mr. England's opinion that if you accept Dr. Volarich's findings and opinions that she was unemployable in the open labor market. He also felt her present symptoms had severely compromised her ability to either return to past jobs or perform any job on a sustained basis.

Dr. Volarich opined that Employee was permanently and totally disabled as the result of the work-related injury of November 8, 2011, standing alone. Although Dr. Volarich acknowledged the existence of her pre-existing disabilities to her low back and her left knee, he felt the severity of the November 8, 2011 work injury, i.e., the L-2 burst fracture, outweighs any pre-existing disabilities that she may have had.

In this case, there is a clear difference in opinion concerning not only the employee's ability to work, but also the cause of permanent total disability if applicable. Dr. Alander and Dr. Coyle do not recommend any permanent restrictions, nor do they comment on Employee's ability to be competitive in the open labor market.

Dr. Coyle did not provide an opinion concerning whether or not Employee's spinal degeneration was specifically symptomatic at the level of the spine described by Dr. Volarich and Employee, nor did he review Dr. Chabot's prior records. Employee's credible description of her symptoms and limitations were the most consistent with Dr. Volarich's findings over Dr. Coyle and Dr. Alander's findings. Based on all of the evidence presented, I find that Dr. Volarich is more credible than Dr. Coyle on the nature and extent of Employee's disability referable to the work injury resulting in Employee's L2 burst fracture.

Based on the credible testimony of Employee, as well as the opinions of Dr. Volarich and findings of total disability by both Ms. Gonzalez and Mr. England, I find that no employer in the usual course of business would reasonably be expected to employ the employee in her present condition and reasonably expect the employee to perform the work for which she is hired. I find the employee is unable to compete in the open labor market and is permanently and totally disabled.

It must be noted that while Mr. England found that Employee was permanently and totally disabled due to a combination of the primary injury and Employee's pre-existing injuries, he did not distinguish Employee's L2 burst fracture symptoms from her prior low back symptoms in relation to Employee leaving the work force.

Moreover, Ms. Gonzalez, while opining that Employee was permanently and totally disabled due to a combination of the work injury and pre-existing conditions, noted that the restriction recommending Employee to change positions frequently to maximize comfort and to rest when needed, would take Employee out of the open labor market. Ms. Gonzalez agreed that if the need for Employee to rest was caused by the last injury alone, then her opinion as to why Employee was permanently disabled would be that the Employee was permanently disabled because of the last injury alone. Dr. Volarich did not change his opinion regarding the effect of the work injury standing alone even after reviewing Ms. Gonzalez's report, and noted that his restrictions were due to the work injury in isolation. In other words, Ms. Gonzalez's testimony can be read to support the notion that Employee is unemployable in the open labor market due to the effects of the last injury in isolation.

Based on all of the evidence presented, I find that the opinions of Dr. Volarich and Ms. Gonzalez's opinion regarding the cause of Employee's permanent total disability is more credible than the opinion of Mr. England on this issue.

Although Employee acknowledged she suffered from left knee pain and low back pain prior to November 8, 2011, she also testified that she was able to perform the essential duties of her job up and until her last injury at work. However, after she returned to full duty, she was in extreme pain when she tried to perform her work duties. Employee distinguished her pain and symptoms from the L2 burst fracture from her prior symptoms at the L4-5 and L5-S1 level. Based on all of the evidence presented, I find that as a direct result of the November 8, 2011 accident and injury alone, the employee is permanently and totally disabled.

I find that the employee reached maximum medical improvement on April 13, 2013, but she remained employed through July 30, 2013. Accordingly, as of July 31, 2013, the employee was no longer able to compete in the open labor market and was permanently and totally disabled.

I find that the employer-insurer is liable to the employee for permanent total disability benefits. The employer-insurer is ordered to pay permanent total disability benefits at a rate of $\ 290.77 per week beginning July 31, 2013. These payments are for permanent total disability and should continue for the remainder of Employee's lifetime or until suspended if Employee is restored to her regular work, or its equivalent, as provided in Section 287.200 RSMo.

Since the employee has been awarded permanent total disability benefits, Section 287.200.2 RSMo. mandates that the Division "shall keep the file open in the case during the lifetime of any injured employee who has received an award of permanent total disability." Based on this section and the provisions of 287.140 RSMo., the Division and Commission shall maintain an open file in the Employee's case for purposes of resolving medical treatment issues and reviewing the status of the employee's permanent disability pursuant to Sections 287.140 and 287.200 RSMo.

I find that since the employee was permanently and totally disabled as a result of the November 8, 2011 accident alone, the Treasurer of the State of Missouri as Custodian of the Second Injury Fund has no liability for either permanent total or permanent partial disability benefits. The employee's claim against the Second Injury Fund is denied; therefore, issue 4 is moot and shall not be ruled on.

Kenneth A. Seufert, 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:

Maureen Tilley

Administrative Law Judge

Division of Workers' Compensation