Mary Claxton v. Waterloo Industries

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 12-104078

**Employee:** Mary Claxton

**Employer:** Waterloo Industries

**Insurer:** Ace American Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The matter proceeded to hearing on March 9, 2017. The parties asked the administrative law judge to determine the following issues:

1. Whether employee's work accident was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Whether, and to what extent employer is liable for any permanent partial disability or permanent total disability benefits; and
3. Whether, and to what extent employer is liable for future medical benefits pursuant to 287.140.

The administrative law judge determined as follows:

1. Employee sustained an injury to her left shoulder and lower back as a result of the work accident;

- Employee's sarcoidosis and resulting treatment (including brain surgery) and employee's hip condition were not causally related to her work-related accident;

1. Employee sustained a 35% permanent partial disability of the body as a whole attributable to her lower back injury and 5% permanent partial disability of the upper left extremity, as a result of the December 17, 2012, work accident; and
2. Employer is not liable for any future medical treatment benefits.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred in concluding employee is entitled to permanent partial disability benefits consistent with a finding of 35% to the low back.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of the disability rating assigned to permanent partial disability of the lower back, decreasing that portion of the award to 15%.

1 On page 17 of the Award, the administrative law judge ruled that employee is not entitled to any temporary total disability benefits. This was not identified at the hearing as an issue. The parties do not ask us to address any issue of temporary total disability on appeal. For this reason, we do not address it here.

Injury No.: 12-104078

Employee: Mary Claxton

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The parties did not dispute that employee sustained an accident in the workplace. On appeal, the parties do not ask us to review the administrative law judge's finding that the accident was the prevailing factor in causing the left shoulder injury and disability.

The parties do dispute the extent of permanent partial disability referable to the low back. The administrative law judge rendered an award of permanent partial disability benefits suggesting he believed the accident caused some injury to employee's lower back, but did not render any affirmative findings with regard to the particular medical condition(s) he believed to have resulted from the accident.

Dr. Koprivica diagnosed a "chronic lumbosacral strain/sprain type of injury with ongoing chronic axial back pain," related to the accident at work. (Exhibit 1, Transcript Vol. 2, pages 394-430) Dr. Zimmerman diagnosed "symptomatic lumbar spondylosis at L4-L5 and L5-S1 with chronic lumbar paraspinous myofasciitis" as a result of the accident. (Exhibit I, Tr. Vol. 2, p. 387) Both doctors opined that the low back injury and any resulting disability were caused by the work-related accident.

It is well-documented in the medical records that employee reported back pain shortly after the work-related accident and she fairly consistently reported low back pain to various providers. She received treatment for this, including a referral to an orthopedist for evaluation and physical therapy. Employer's expert, Dr. Koprivica, (and others) noted employee's limitations on movement. Dr. Koprivica noted after his March 18, 2016 examination that the range of motion (flexion/extension) of employee's low back was significantly less than the norm for both forward and backward bending at the waist. (Tr. Vol 2, p. 423-424)

We find the accident was the prevailing factor causing employee to suffer the resulting medical condition of a low back strain, and associated disability.

The administrative law judge assigned a disability rating of 35% of the body attributable to employee's lower back injury. His determination appears to be based in part, on the opinion of Dr. Zimmerman, who examined employee on March 26, 2015. Dr. Zimmerman rated disability at 35% of the body as a whole, due to symptomatic lumbar spondylosis. He further opined that employee had sustained permanent partial disability of the right lower extremity at the hip level and rated it at 50%. The overall permanent partial disability of the body as a whole, considering both factors of assessment was 61%.

As noted by the administrative law judge, one factor influencing Dr. Zimmerman's opinion was the employee's report at the time of examination that she had injured her right hip as a result of the December 17, 2012, accident. As further noted by the judge, "The weight of the credible evidence is that employee fell on her left side and injured her left shoulder and lower back." (Award at p.15) The administrative law judge found, and we agree, that employee has not met her burden to show any other injury, aside from the lower back and

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left shoulder. Therefore, we limit our consideration of Dr. Zimmerman's opinion to his assessment that the accident resulted in a 35% disability to the lower back.

We agree with employer that a 35% disability rating to the low back is excessive. The administrative law judge's reasoning in limiting the nature of the injuries flowing from the December 17, 2012, accident is more consistent with the opinion of Dr. Koprivica. In his report following a March 18, 2016 examination, the doctor acknowledged that some permanent disability was present to the lower back as a result of the accident. He rated that disability at 5%.² Dr. Koprivica found that employee has developed some chronic soft tissue pain in the left shoulder and lumbosacral spine. (Tr. Vol 2, p. 429) Aside from this, he opined no other injuries or conditions alleged by employee, were attributable to the accident. (Tr. Vol 2, p. 426)

The degree of disability is not strictly a medical question.³ Employee has consistently maintained that she continues to have a level of pain affecting her ability to perform daily activities.⁴ While employee's testimony and recollection of events is noticeably flawed⁵ at times, we do not doubt that she experiences pain, and that some of that pain is attributable to the injury to her back resulting from the accident. Dr. Koprivica finds employee credible in her overall presentation, while noting some memory issues. (Tr. Vol 2, p. 398,420,425) However, employee's assertion that she still experiences pain from these injuries at a level of ten out of ten is unsupported by any objective findings.

Considering all the credible evidence before us, we find the disability relative to employee's low back should be rated at 15%. This takes into consideration the doctors' opinions, medical records showing employee reported back pain fairly consistently as late as 2016 and the observation of medical providers, (including Dr. Koprivica), of decreased range of motion in the lumbar spine. The permanent partial disability benefits (PPD) for the low back are calculated at 60 weeks. The stipulated PPD rate is $376.83. The PPD attributable to the left shoulder is calculated at 11.6 weeks, for a total of 71.6 weeks, equal to $26,981.03.

Conclusion

We modify the award of the administrative law judge as to the issue of permanent partial disability. The disability rating for employee's lumbosacral injury is 15% permanent partial disability. In all other respects, we adopt the administrative law judge's award.

² He further found a 5% disability rating (at most) relative to the left shoulder injury.

³ ABB Power T & D Co. v. Kempker, 236 S.W. 3d 43, 52 (Mo. App. 2007)

⁴ Because "there is no objective test for pain [.] the extent to which a claimant experiences pain is a credibility determination for the Commission to decide." Ballard v. Woods Supermarkets, 422 S.W. 3d 473, 478-79 (Mo. App. 2014)

⁵ Employee's intervening brain condition for which she was hospitalized January 24, 2013 through February 2, 2013, may play a part in memory issues. The brain condition was not related to the accident on December 17, 2012. Dr. Koprivica also noted in his March 18, 2016 report, that there are "likely neurocognitive residuals associated with her noted development of central nervous system sarcoidosis and the residuals associated with obtaining the biopsy." (Tr. Vol 2, p 398, 410, 420) This reference relates to the craniotomy with excision biopsy of the meninges on January 29, 2013.

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Employee is entitled to, and employer is hereby ordered to pay $26,981.03, in permanent partial disability benefits; (60 weeks for the low back, plus 11.6 weeks for the left shoulder).

The Award and Decision of Administrative Law Judge Joel Anderson, issued on June 7, 2017, is attached hereto and its findings and conclusions are incorporated herein, to the extent they are not inconsistent with our modifications.

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 18th day of April 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Mary E. Claxton

Injury No. 12-104078

Dependents:

Employer: Waterloo Industries

Additional Party:

Insurer: Ace American Insurance Company

Hearing Date: March 9, 2017

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JEA

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: December 17, 2012
5. State location where accident occurred or occupational disease was contracted: Sedalia, Pettis 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: Stacking tool boxes on a skid
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: shoulder, back
14. Nature and extent of any permanent disability: 35 percent of the body; five percent upper left extremity
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,938.99

1. Value necessary medical aid not furnished by employer/insurer? -0-
2. Employee's average weekly wages: 565.25
3. Weekly compensation rate: is 376.83
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: None

0 weeks of temporary total disability (or temporary partial disability): None

151.6 weeks of permanent partial disability from Employer: $\ 57,127.43

-0- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning, for

Claimant's lifetime: None

1. Second Injury Fund liability: Yes No X Open

weeks of permanent partial disability from Second Injury Fund - 0

Uninsured medical/death benefits - 0

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime - 0

TOTAL: 57,127.43

1. Future requirements awarded: None

Said payments to begin 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: Daniel L. Smith

On March 9, 2017, the parties appeared in Sedalia, Pettis County, Missouri for a final hearing. The employee, Mary E. Claxton (Claimant), appeared in person and with counsel, Daniel Smith. The employer, Waterloo Industries (Employer), appeared through counsel Ben Gary. Also present was Brett Shoop, a representative of Employer.

The parties stipulated as follows:

1. The Division of Workers Compensation has jurisdiction over the hearing and adjudication of this claim.
2. Venue for this hearing is proper in Pettis County, Missouri.
3. The claim for compensation was filed within the time allowed by the statute of limitations prescribed by Sec 287.430.
4. Both Employer and Claimant were covered under the Missouri Workers Compensation Law at all relevant times.
5. The Claimant sustained an accident arising out of and in the course of her employment on December 17, 2012.
6. The notice provisions of Sec 287.420 do not serve as a bar to a claim for compensation.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mary E. Claxton

Injury No. 12-104078

1. The workers compensation liability of Waterloo Industries was insured by Ace American Insurance Company at all relevant times.

1. Employer has paid medical benefits in the amount of $5,938.99.

1. Employer has paid no temporary total disability benefits.

1. The average weekly wage is $565.25.

1. The compensation rate for temporary and permanent total disability benefits and permanent partial disability is $376.83.

The parties agreed that the issues for trial are:

1. Whether Claimant's work accident December 17, 2012 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence.

1. Whether and to what extent Employer is liable for any permanent partial or permanent total disability payments.

1. Whether and to what extent Employer is liable for future medical benefits pursuant to §287.140.

EVIDENCE

The record consists of the testimony of Claimant and of Robert Beck, a co-employee. Also admitted into evidence was Claimants Exhibits A through J and Employer's Exhibits 1 and 2. Any objections made to the admission of evidence that were not ruled on during the hearing are now overruled.

Claimant is a 53 year-old female who completed a high school education. She was employed by Employer beginning in May of 1999 through the date of her injury. She did the same job for Employer throughout, making metal tool chests that weighed approximately 50 WC-32-R1 (6-81)

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pounds. Her duties were to put tops, bottoms, and covers on the units, and to stack the chests on skids. Lifting requirements were usually about 25 to 30 pounds for about one hour each day. She was required to carry items at these weights, also about one hour each day. Her duties required about three hours per day of bending when working on the tops and bottoms of units. Claimant was required to lift items from the floor to waist height approximately two hours out of each day. In a typical day, Claimant would be required to stand all day, with two ten-minute breaks in additional to a lunch break.

At the time of the accident, approximately 9:30 a.m., Claimant was stacking tool boxes on a skid that was on conveyor-type rollers as part of the shipping process. The skid was approximately 8 feet by 10 feet in size. Each roller was approximately four inches wide, with gaps between the rollers of approximately five inches. Claimant was putting a plastic shrink-wrap on the boxes at the time of her fall. Claimant tripped between the rollers and fell backwards. Claimant testified on direct that both of her hips, her back, both of her shoulders, and her head impacted the surface. Claimant testified that she was dazed from hitting her head on the floor and was dizzy thereafter. Claimant testified that she was on the floor for approximately three minutes before getting up.

Claimant testified that she took a break after her fall, which coincided with her break-time and so took about 10 minutes. Claimant testified that she attempted to report the incident, but her regular supervisor (a Mr. Lewis) was not present that day. Instead, she reported to a different supervisor, a Mr. Hampshire, but was unable to locate him until 1:30 that afternoon, approximately four hours after the accident. Claimant testified that Mr. Hampshire said that he would report the incident to the safety coordinator (who was also not

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present). There was no referral for any kind of treatment or medical attention on the day of the accident.

Claimant testified that she attempted to resume work after her ten-minute break. She testified that she was having pain in her lower back and shoulders, and she could barely walk because both her feet were burning. Claimant testified that she was unable to stand on the concrete, so she put a mat under her feet to continue working. She testified that bending, squatting, and lifting were problematic for her, especially in her lower hips. After work at home, Claimant testified that she rested and took a pain killer, "Aleve."

Claimant testified that she went back to work the day after the accident (December 18, 2012) and had difficulty getting from the parking lot to the entrance of the work place. She had difficulty getting out of the car due to pain in her legs and back, and was having difficulty waking. When putting covers on the units, Claimant would have to rotate from side to side and this would cause pain in her shoulders and lower back. Claimant testified that she was permitted to take approximately three breaks in addition to her normal breaks with the permission of her supervisor.

Claimant testified that she worked the remainder of the week of her accident (until December 21, 2012) and continued to have the same physical difficulties. The plant was closed for the holidays the following week. Claimant testified that during this week off, she used a heating pad on her lower back and propped pillows behind her back to make herself more comfortable.

Claimant testified that she returned to work after the holidays on January 2, 2013. Claimant testified that she was then able to report the accident to the safety coordinator. Claimant testified the she told the safety coordinator that she had fallen and described the

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physical problems she had been having. Claimant testified that an appointment was made with Dr. Wilson, who Claimant first saw January 3, 2013.¹

Claimant testified that she told Dr. Wilson that she had pain in her back and shoulders, burning in her feet, and problems bending and squatting. Claimant testified that Dr. Wilson restricted her work activities to lifting no more than five pounds, and to limit activities that require her to bend.

Dr. Wilson's January 3, 2013 note (Claimant's Exhibit A) describes Claimant's problem as involving the "left shoulder and back pain," following a fall where Claimant landed on her "left back and side." Noting that Claimant's x-rays were negative, Dr. Wilson recorded finding tenderness over the right shoulder area. Dr. Wilson diagnosed "contusion shoulder" and in addition to light duty restriction, he prescribed Tylenol #3 for pain.

Claimant testified that she saw Dr. Wilson a second time on January 14, 2013. Claimant testified that she was still having back, shoulder, and leg pain, and difficulty walking and bending. By this time, Claimant was taking sit-down breaks every 30 minutes with permission of her supervisor. Claimant testified that Dr. Wilson referred her to physical therapy.

On January 24, 2013, and before Claimant was able to start the prescribed physical therapy, she had an episode at work on in which she "blacked-out." She was taken by ambulance to Bothwell Medical Center in Sedalia, and then transferred to University of Missouri Hospital in Columbia, Missouri (UMH). Claimant was suffering from a brain condition.²

Claimant was released from UMH on February 2, 2013.

¹ Although Claimant reported her work accident to her superiors on the day of the event, she received no medical attention for 16 days thereafter.

² There is no medical evidence that Claimant's brain condition and resulting treatment were related to the work accident.

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Following release from UMH, Claimant testified that she commenced physical therapy in Sedalia at Peak Performance. She reported back and shoulder problems, but did not tell them about problems with her feet. They provided heat therapy on her lower back.

Claimant testified that she had a third visit with Dr. Wilson in March, 2013 and reported back and shoulder pain, and problems with walking. Claimant testified that Dr. Wilson referred her to an orthopedic doctor (Dr. Meyer) at Columbia Orthopedic Group. Claimant testified that she first saw Dr. Meyer on April 2, 2013, and continued to see Dr. Meyer through May 30, 2013. Claimant testified that she had an MRI on May 28, 2013. Claimant testified that she discussed her back and shoulder pain and difficulty walking with Dr. Meyer, but he did not have an "answer" for her. Claimant continued on the same work restrictions during this time, but was not at work due to the brain injury.

Claimant testified that she continued with physical therapy during this time period that she treated with Dr. Meyer and up through approximately June 28, 2013. In June, 2013, Claimant testified that she was having lower back and shoulder pain, pain in both legs and feet, and continued difficulty walking. Peak gave Claimant a TENS unit for her lower back. Claimant testified that this unit helps her back, and she uses it every day.

Claimant testified that she attempted to return to work in August of 2013, and observed her light duty restrictions. After two days, she could not continue because of back pain and burning feet. Claimant testified that she remained off work after August of 2013.

In September, 2014, Claimant testified that she went to orthopedic doctor Ajay Aggarwal of UMH. Claimant testified that she was limping and favoring one leg over another.

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Claimant testified that she had been experiencing this condition for approximately one year.³

Claimant testified that she had hip replacement surgery on her right hip. Claimant currently uses a walking cane any time she walks a distance greater than two city blocks. Claimant testified that the cane is necessitated by the burning feeling in her feet that she attributes to her low back condition.

Claimant testified that she got Social Security disability benefits in May, 2014.

Claimant testified that she returned to see Dr. Sharp (in the same office with Dr. Wilson) in October of 2014. Her presenting problem to Dr. Sharp was lower back and shoulder pain, difficulty walking. Claimant testified that there had been no change in her condition with these areas since the injury of December, 2012.

Claimant testified that she currently has difficulties bending and standing. She continues to have low back pain that she rates as "10" on a 10-point scale, and it has remained this way since the fall in December of 2012. Claimant describes this pain as a burning sensation that goes down to her feet. Claimant testified that can stand no longer than five minutes before getting pain in her feet. She currently uses a heating pad on her lower back four times per day for approximate 45 minutes at each instance. Claimant testified that she takes only over-the-counter medicine (Aleve) for her pain, four, 200 mg pills three times each day.

On cross examination, Claimant's account of which side of her body impacted the rollers or floor changed several times. In contrast to direct testimony where Claimant testified to landing essentially flat and impacting both sides of her body simultaneously, including her head, Claimant testified that she was certain that she fell on her right side, not the left side, even when confronted with her deposition where she testified to landing on her left side. Several

³ This would coincide with an onset of approximately 9-10 months after the work accident.

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times, Claimant reiterated that she fell on and impacted the right side of her body. When later confronted with her own handwritten account on the Employer's injury report form (Exhibit 2) where Claimant reports falling on her left side, Claimant agreed that the fall was not on the right, but on the left instead. Claimant also admitted that she reported to Dr. Aggarwal on February 3, 2014, that her right hip pain had been a problem since June of 2013—approximately six months after the fall.

Finally, Claimant stated that she believed the head injury that led to her hospitalization was due to the work accident, but admitted that no doctor told her this.

Co-employee Robert Beck testified that he was aware of Claimant's accident, but did not see her fall. He merely saw he sitting up after the fall from about 15 feet away.

Claimant saw Dr. Daniel Zimmerman at her attorney's request in March, 2015 and Dr. Brent Koprivica in March, 2016 at the request of the Employer. Each doctor produced a report based on an independent medical examination, and each report was admitted into evidence.

Dr. Zimmerman opined that Claimant's work-related fall resulted in permanent disability to her low back and right hip, based on a right-sided fall as described to him by Claimant. Specifically, he concluded that as one consequence of the fall, she sustained trauma to her right hip which led to the development of avascular necrosis of the hip. He found that the fall resulted in spondylosis at L4-5 and L5-S1 of the lumbar spine with chronic myofasciitis. He rated the permanent partial industrial disability of her low back as 35% of the whole person. The permanent disability involving the right hip was rated at 50% of the leg. The combined disability was 61% of the body. He also opined that Claimant would require future medical treatment of nonsteroidal anti-inflammatory medication once each month, together with regular office follow-up to address her ongoing pain. It is noteworthy that there is no evidence

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that Dr. Zimmerman was provided with records relating to right hip treatment and surgery, and no mention of the fact that Claimant's left hip was treated as well. Dr. Zimmerman's entire report totaled eight pages. Ex. H.

Dr. Koprivica's analysis was based upon a left-sided fall as described to him by Claimant. He opined that the work-related accident resulted in left shoulder and low back strain. He noted issues with Claimant's hips were likely the result of the use of high doses of steroids prescribed to treat Claimant's neurosarcoidosis--a condition not shown to be related to the fall in 2012. Dr. Koprivica appears to have been provided with significantly more medical records, most notably those that addressed Claimant's hip issues and surgeries. Dr. Koprivica concluded that the work-related fall resulted a five percent disability at the upper left extremity and a five percent disability to the body as a whole for the chronic axial back pain. Dr. Koprivica opined that no additional future medical treatment would be needed and that Claimant would have no work restrictions as a result of the work accident. Dr. Koprivica's report totaled 37 pages. Ex. 1.

DISCUSSION

Claimant bears the burden of proving all the essential elements of the claim, including medical causation. *Roberts v. Mo. Highway & Trans. Comm.*, 222 S.W.3d 322, 331 (Mo. App. 2007).

Here, Claimant fell backwards onto steel rollers as she was wrapping heavy merchandise and alleges injury to both hips, both shoulders, her lower back, and her head. In addition to pain, Claimant reports having difficulty walking, bending, and lifting. Claimant alleges that the treatment required for this fall included pain medications, a TENS machine, physical therapy, hip replacement, and brain surgery.

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Injury No. 12-104078

Claimant's testimony between direct and cross-examination was conflicting as to which side of her body impacted the rollers/floor when she fell. She failed to provide any medical evidence that any injury requiring brain surgery was related to the work-related accident, and the evidence that her hip surgeries were related to the fall at work was isolated to her own medical expert whose facts about her fall are at odds with the other medical records and with Claimant's contemporaneous reports.

The written records made at or around the time of the injury consistently refer to a fall on the left side of Claimant's body, and injuries to Claimant's low back and left shoulder:

(1) Employer's Exhibit 2 is the employer's fill-in-the-blank form for reporting a work injury. This January 2, 2013 form is signed by Claimant and Claimant testified that the information written on the form is in her handwriting (except for one entry not relevant here). Claimant describes herself as falling and landing on her left side, with affected body parts being her lower back and shoulder (singular).

(2) The treating physician (Dr. Stan Wilson) records a history in the initial visit of January 3, 2013 that Claimant fell and landed on her left back and side with worsening symptoms. Dr. Wilson found tenderness to Claimant's right shoulder⁴ and diagnosed a shoulder contusion (did not specify which shoulder), prescribed Tylenol #3, prednisone for six days and restricted Claimant to light duty.

⁴ In his report, Dr. Koprivica noted this finding of a right shoulder contusion based upon a left-sided fall. "On my questioning of her, Ms. Claxton is clear that her complaints involved the left shoulder. She did not have problems with her right shoulder and did not suffer any injury to her right shoulder or the right side of her body directly." Exhibit 1, Koprivica report, p. 15.

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(3) On January 14, 2013, Dr. Wilson records a note that Claimant returned with complaints of left shoulder pain and back pain. He prescribed physical therapy and continued light duty.

(4) On March 6, 2013, Dr. Wilson records a note that Claimant is having low back pain, but that her shoulder is better. Dr. Wilson referred Claimant to a back doctor, diagnosing persistent low back pain.

(5) On April 2, 2013, Dr. Craig Meyer of Columbia Orthopedic Group noted Claimant's fall on her left side and complaints of lumbar and thoracic spine area pain. He described "fairly uneventful" x-rays, and recommended continuation of work restrictions of ten-pound lifting limit, and avoiding twisting activities. He diagnosed lumbar thoracic strain.

While it is difficult if not impossible to determine whether the information in these medical records was obtained, each time, from a conversation with Claimant, or whether and to what extent information was simply transferred from one record to the next, it is undeniable that Claimant herself officially reported a left-side fall.

Claimant's inability to testify in the hearing consistently about what happened to her is more problematic than discrepancies between testimony and medical records. In the hearing, Claimant testified to falling on her left side, and later testified that she fell on her right side, and still later testified that she fell straight back hitting both right and left sides, and finally agreeing that she fell on her left side. Ultimately, Claimant admitted that Dr. Wilson's January 3, 2013 note that she fell on left side was correct.

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The weight of the consistent testimony is that Claimant fell on her left side injuring her left shoulder and her lower back. Claimant's description of her discomfort resulting from this fall appears to be greatly overstated since she rated her pain at a relatively continuous "10" on a 10-point scale. However, Claimant's description of her physical limitations seemed more conservative and fitting with limitations as described by Dr. Zimmerman and Dr. Koprivica, and consistent with work limitations imposed early on Dr. Wilson and Dr. Meyer. Claimant's consistent complaints and expressed limitations throughout her case, and her credible testimony in the hearing are supported by Dr. Zimmerman's assessment of Claimant's lower back injury disability of 35 percent of the body. Claimant's complaints of her left shoulder are consistent with Dr. Koprivica's assessment of five percent disability at the upper left extremity.

Claimant also suffered from sarcoidosis, for which she had brain surgery, and from avascular necrosis of both hips, for which she had hip surgeries.

There is no evidence that Claimant's sarcoidosis and resulting treatment resulted from her work-related accident. In fact, Claimant admits that no doctor ever told her that it did. Claimant's own expert, Dr. Zimmerman, opines that the neurosarcoidosis was not a consequence of the fall at work. This medical opinion is particularly noteworthy since it is the only medical conclusion in the record that even mentions an alleged blow to the head in the work accident. Claimant has not met her burden of proof with respect to her alleged head injury that resulted in her January, 2013 hospitalization and subsequent surgery.

Claimant's hip condition is slightly different. While hip issues do not appear as complaints related to the work accident in the medical records (and Claimant did not indicate any such injuries in her hand-written report of injury), the only medical evidence that her hip condition was attributable to the work-related accident is in the written report of Dr.

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Employee: Mary E. Claxton

Injury No. 12-104078

Zimmerman. But Dr. Zimmerman based his opinion on the hip conditions on the Claimant's report that she fell on her right side. This "fact" is contrary to Claimant's own written report around the time of her fall, and the resulting historical facts recited in the various medical records. Again, Claimant's hearing testimony is of no assistance in resolving this factual and medical issue since she could not testify consistently about the details of her fall and what parts of her body were injured.

The weight of the credible evidence is that Claimant fell on her left side and injured her left shoulder and lower back. Claimant has not met her burden to show any other injury.

Both Dr. Zimmerman and Dr. Koprivica opined that Claimant is not employable with her current conditions. A person is totally disabled when there is an inability to return to any employment[.]" §287.020.6 RSMo. Permanent total disability means that "no employer in the usual course of business would reasonably be expected to employ the Claimant in [his or] her present physical condition." *Gassen v. Lienbengood*, 134 S.W.3d 75, 80 (Mo.App. W.D.2004). The claimant has the burden to establish permanent total disability by introducing evidence to prove his claim. See *Cardwell v. Treasurer of State*, 249 S.W.3d 902, 911 (Mo.App. E.D.2008).

The evidence does not support a finding that Claimant is permanently and totally disabled as a result of her work-related injury. There is ample evidence that Claimant has had serious physical problems after a work-related injury—specifically, the sarcoidosis and subsequent brain surgery for that condition; and the avascular necrosis of both hips and subsequent hip treatments. As discussed above, these conditions have not been shown to be related to her work accident, and there is no evidence that treatment for these conditions was request from or provided by Employer.

WCL22-R1 (6-81)

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mary E. Claxton

Injury No. 12-104078

In spite of the medical opinions on employability, Claimant has offered no evidence that she is unable to compete in the labor market as a result of her work-related accident. Although Dr. Zimmerman opines in his report that Claimant is not employable, there is no evidence on the record that Dr. Zimmerman performed anything other than a medical exam and review of Claimant's medical records. Dr. Zimmerman has not been shown to have expertise in vocational assessment, and did not produce records that he performed any vocational assessment testing. Dr. Koprivica expressed a similar opinion on employability that suffers from the same defects, although Dr. Koprivica opines that she has little to no disability from her work accident and should have no permanent work restricts as a result of it. Accordingly, Claimant is not entitled to an award of permanent total disability benefits.

Finally, Claimant failed in her burden to show the necessity of future medical treatment. There is no evidence that any doctor was prescribing ongoing treatment for Claimant's pain, or suggested future treatment after reaching maximum medical improvement. The only medical doctor that addressed ongoing/future treatment was Dr. Zimmerman, and it would be purely speculative to determine which among Claimant's symptoms would be attributable to the work accident since Dr. Zimmerman's opinion was based on admittedly incorrect facts and, apparently, incomplete medical records. The only ongoing treatment of Claimant's pain has been Claimant's own self-care which has involved a heating pad, a TENS unit, and an over-the-counter pain reliever. Claimant has failed to meet her burden to show entitlement to future medical treatments.

WC-32-R1 (6-81)

Page 16

Based upon the weight of the persuasive evidence, Claimant is entitled to an award of: 35 percent of the body attributable to her lower back injury ( $\ 52,756.20 ) and five percent disability at the upper left extremity ( $\ 4,371.23 ). Claimant is not due any temporary total disability benefits because Claimant's absence from work was due to injuries not related to the work accident. Claimant is not due an award of future medical treatment benefits. The compensation awarded to Claimant shall be subject to a lien in favor of Claimant's attorney, Daniel L. Smith, in the amount of 25 percent of all payments awarded here for necessary legal services rendered to Claimant.

I certify that on $6 / 7 / 17$ I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.