Enrika Fox v. Missouri Department of Corrections

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 08-025433

**Employee:** Enrika Fox

**Employer:** Missouri Department of Corrections (Settled)

**Insurer:** Self-insured (Settled)

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

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 briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the sole issue of Second Injury Fund liability for permanent partial disability.

The administrative law judge denied the claim against the Second Injury Fund in full, finding the employee "failed to establish that the lumbar spine, cervical spine and right shoulder disabilities and the preexisting conditions of right knee patellofemoral syndrome, operated bilateral carpal tunnel syndrome, and headaches, combined synergistically to cause a greater disability than the simple sum of the individual disabilities".¹

The employee filed a timely application for review with the Commission alleging that the administrative law judge erred in determining that the work injury, in combination with preexisting medical conditions, did not combine synergistically to cause a greater disability than the simple sum of the individual disabilities. Specifically, the employee alleged that the administrative law judge erred in:

- Failing to determine the nature and extent of permanent disability of the employee's preexisting conditions;

- Ignoring Dr. Volarich's testimony and medical opinion;

- Ignoring the employee's testimony with respect to the issue of synergism;

- Ignoring uncontradicted testimony of unimpeached witnesses and not granting the employee all reasonable inferences;

- Not considering and applying testimony relating to pain caused by the employee's work injury and prior medical conditions.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

¹ Award, pp. 6-7.

Injury No.: 08-025433

Employee: Enrika Fox

- 2 -

The parties stipulated that the employee sustained an accident arising out of and in the course of her employment on March 31, 2008, when she fell down a flight of stairs due to a broken handrail. On February 1, 2013, an administrative law judge approved a settlement of this claim against the employer, based on 12.5% of the body as a whole related to the lumbar spine, permanent partial disability of 4.5% of the body as a whole related to the cervical spine, and permanent partial disability of 5% of the right shoulder at the 232 week level. Neither party disputes nor challenges the administrative law judge's finding of permanent partial disability relating to the primary work injury, consistent with employee's settlement agreement.

The employee suffered an injury to her right knee in July 2004 as she experienced a "pop" in her right knee while getting out of a vehicle. The attending physician diagnosed this medical condition as patellofemoral syndrome and tendonitis. The employee testified she suffers achiness with weather changes and pain with walking. The residual effects of this medical condition cause her to walk with a limp or altered gait. The employee's work as a corrections officer involved "[w]alking up and down the wings, up and down stairs, checking on the offenders, conducting counts, [and] pretty much just walking the wings all day long." Because of her right knee condition, the employee walked carefully and more slowly than other guards did.

We find the employee's preexisting right knee condition constituted a hindrance or obstacle to employment because it had the potential to combine with disability from her primary injury to cause a greater degree of disability than would have resulted in the absence of the condition.

Dr. David Volarich evaluated the employee's preexisting industrial disability relating to patellofemoral syndrome as 20% permanent partial disability of the right lower extremity rated at the knee, stating that his rating accounts "for ongoing discomfort with prolonged weightbearing and any impact activities, stooping or squatting."

The employee developed bilateral carpal tunnel syndrome in 2003. She underwent open right carpal tunnel release in March 2004 and open left carpal tunnel release in December 2004. The employee's carpal tunnel syndrome has resulted in restrictions and limitations relating to activities that require sustained or heavy lifting.

2 Transcript, 15.

3 Id. Claimant's Exhibit No. 22, 513.

Injury No.: 08-025433

Employee: Enrika Fox

- 3 -

The employee testified that prior to her 2008 injury she had problems gripping and using her hands when unlocking doors. She acknowledged these problems became less of an issue after a 2004 bilateral carpal tunnel release. Dr. Volarich evaluated the employee's preexisting carpal tunnel syndrome as 20% of each wrist.4

In 2006, the employee suffered paresthesias in the left face and experienced debilitating migraine headaches. Her attending physician diagnosed this condition as intractable vascular headaches and paresthesias and prescribed Topamax. Prior to the March 31, 2008, injury the employee missed work about two days a month due to migraine headaches. She testified that as a result of treatment for her migraine headaches in 2008 she "moved on to just the stress headaches, [and] it was a lot better, a lot more manageable."5 After about a year, the employee discontinued taking Topamax. She currently takes over-the-counter medication for stress related headaches about once a week. The employee testified that after her March 31, 2018, injury migraine headaches were no longer a problem.

Dr. Volarich assessed 5% preexisting permanent partial disability of the body as a whole relating to the employee's central nervous system, taking into consideration recurrent migraine headaches that require treatment.

#### Employee's Testimony

When asked about increased difficulties related to her multiple injuries, the employee explained that pain in one area sets off pain in other areas. Her pain level is enhanced and more difficult to control due to concurrent pain from multiple injuries. In particular, the employee believes her altered gait has made her low back more painful than it would otherwise be. She testified that her altered gait "affected ... the back and the neck and everything, because without walking straight, it threw everything off."6

The employee further summarized the impact of her cumulative disabilities on her ability to use proper body mechanics: "It's extremely affected. You know, everything runs together, so one thing is affected by the other. ... if the knee hurts, the back hurts, and if ... I have an off gait, then that affects the back and the neck and everything else."7 With respect to her mobility she stated, "I'm really slow. I have to take caution of what I do and how I do it."8

4 The administrative law judge noted that the employee settled a workers' compensation claim for 12.5% of each wrist in Injury No. 03-100593. Award, p. 5. As employee's counsel notes in his brief, employee's prior settlement does not constitute a stipulation or admission of specific disability. Seifner v. Treasurer of State-Custodian of the Second Injury Fund, 362 S.W.3d 59, 64 (Mo. App. 2012).

5 Transcript, 35.

6 Id. 31.

7 Transcript, 36-37.

8 Id. 36.

Injury No.: 08-025433

Employee: Enrika Fox

- 4 -

Addressing the synergistic effect of her disabilities, the employee concluded, "It's just hard to function ... when you have problems with everything. . ."9 She feels, as result of the combination of problems resulting from her back, knee, head, and tailbone, that she is unable to perform even the simplest of tasks.

**Dr. Volarich's Expert Opinion**

Dr. Volarich addressed the issue of synergistic/combination effects relating to the employee's primary injury and preexisting injuries in a January 9, 2017, Addendum following his March 1, 2010, report. Dr. Volarich described the human body as a kinetic chain where "every joint depends on the joint proximal to it and distal to it to accomplish movement... [therefore] injuries to the back or neck are going to have negative effects on movement of the arms and legs..."10

Dr. Volarich noted that the employee developed a slight limp after her 2004 right knee injury, which caused her low back and neck to become misaligned. "With loss of range of movement and abnormal gait she had to continue to be careful and move more slowly and deliberately."11 The employee's subsequent 2008 injury then caused an increase in her neck symptoms resulting in further loss of movement and pain, forcing her to move more slowly and be more deliberate with all of her activities. This compromised the employee's ability to perform lifting duties at work and intercept inmate altercations. Dr. Volarich noted that the employee was rarely asymptomatic. On some days, due to her combined disabilities the employee was simply not able to give her employer 100%. On other days, when "everything hurt" she was completely incapacitated from work. Dr. Volarich concluded, "The interplay between her injuries/medical conditions, made it more difficult to function efficiently at work and home."12

Dr. Volarich opined that the combination of the employee's disabilities created a substantially greater disability than the simple sum or total of each separate injury/illness and that therefore a loading factor should be added.

**Our Findings**

**Disability Relating to Primary Injury**

Noting that no party disputed this issue, we find the employee sustained permanent partial disability relating to her March 31, 2008, injury in the amount of 12.5% of the body as a whole related to the lumbar spine, permanent partial disability of 4.5% of the body as a whole related to the cervical spine, and permanent partial disability of 5% of the right shoulder at the 232-week level.

9 Id. 30.

10 Id. Claimant's Exhibit No. 24, 527.

11 Id. 527.

12 Id. 528.

Injury No.: 08-025433

Employee: Enrika Fox

- 5 -

Based on the employee's credible testimony, especially regarding pain with walking and her altered gait, and Dr. Volarich's expert opinion we find the employee sustained a preexisting disability in the amount of 20% of her right lower extremity rated at the knee.13

We find the employee had preexisting permanent partial disability relating to her right and left wrists in the amount of 12.5% of each wrist.

Based on the employee's testimony that after appropriate medical treatment her migraine headaches had ceased to be a problem around the time of her 2008 injury, we find that the employee's preexisting disability relating to the central nervous system was not of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed. We assign no preexisting permanent partial disability relating to the employee's central nervous system.

We find, as a factual matter, that the employee has sustained greater permanent partial disability than resulted from the primary injury alone due to synergistic interaction between disability to her lumbar spine and cervical spine in combination with her preexisting right knee disability. In so finding, we rely on Dr. Volarich's expert medical opinion on the issue of "synergy". We also rely on the employee's credible testimony regarding increased difficulties related to her multiple disabilities, largely due to her altered gait.

Dr. Volarich makes the case for a synergistic relationship between the employee's disabilities across the boar