Enrika Fox v. Missouri Department of Corrections

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 08-121816

**Employee:** Enrika Fox

**Employer:** Missouri Department of Corrections

**Insurer:** Self-Insured

**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 modifies the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the following issues:

- Whether the employee sustained an occupational disease arising out of and in the course of her employment with the Missouri Department of Corrections;

- Whether the alleged occupational disease was the prevailing factor in causing the employee's medical condition and disability;

- Employer's liability, if any, for permanent partial disability benefits;

- The Second Injury Fund's liability, if any for permanent partial disability.

The administrative law judge found that due to occupational disease sustained on November 3, 2008, consisting of plantar fasciitis, the employee sustained permanent partial disability of 12.5% of the right foot at the 150-week level and 5% permanent partial disability of the left foot at the 150-week level. The administrative law judge denied the claim against the Second Injury Fund in full, finding that "Claimant failed to establish that the bilateral plantar fasciitis and the preexisting condition of right knee patellofemoral syndrome, operated bilateral carpal tunnel syndrome, and headaches, combined synergistically to cause a great disability than the simple sum of the individual disabilities."

The employee filed a timely application for review with the Commission alleging the administrative law judge erred in:

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

*Award, p. 18.*

*Page 18*

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- 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 modify the award and decision of the administrative law judge.

The administrative law judge found that the employee's work "demonstrated a long history of significant walking and/or standing on concrete or other hard surfaces as a part of her job"; that the employee's employment caused her to suffer cumulative trauma to her feet; that this occupational exposure was the prevailing factor in causing the employee to suffer the resulting medical condition and disability of bilateral plantar fasciitis; that on or about November 3, 2008, the employee sustained an occupational disease as defined in Section 287.067, which arose out of and in the course of her employment, and as a consequence sustained permanent partial disability of 12.5% to the right foot, at the 150-week level (18.75 weeks) and permanent partial disability of 5% to the left foot, at the 150-week level (7.5 weeks). No party disputes the administrative law judge's determination of permanent partial disability attributable to the primary injury.

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.

2 Transcript, 15.

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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."3

**Right and Left Wrists**

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.

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

**Headaches (Central Nervous System)**

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 a March 31, 2008, work injury (Injury No. 08-025433) the employee missed work about two days a month due to migraine headaches. She credibly 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. The employee testified that after her March 31, 2008, injury her migraine headaches ceased to persist. She currently takes over the counter medication for headaches about once a week.

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.

**Synergistic Interaction between Disabilities Related to Employee's Primary Injury and Her Preexisting Medical Conditions/disabilities**

**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,

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

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, 15. 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.

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the employee believes 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

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

Dr. Volarich's Expert Opinion

Dr. Volarich evaluated the employee with respect to the November 3, 2008, injury on March 1, 2010. On that date, he found the employee had 20% permanent partial disability of the right lower extremity rated at the foot and 10% permanent partial disability of the left lower extremity rated at the foot due to bilateral plantar fasciitis. He found, based on treatment provided to that date that the employee had reached maximum medical improvement. As noted, supra, Dr. Volarich evaluated the employee's pre-existing permanent industrial disabilities in addition to the permanent partial disability sustained in connection with the November 3, 2008, work injury. He opined that addition of a loading factor was appropriate in evaluating the employee's total disability because the combination of the employee's disabilities create a substantially greater disability than the simple sum or total of each separate injury/illness.

Dr. Volarich specifically 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... [and therefore] injuries to the back or neck are going to have negative effects on movement of the arms and legs...[and] even simple things like injury/problem [sic] with the forefoot can make it difficult to stand in a stationary position and work on an assembly line all day."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 "Because of ongoing symptoms along her axial spine aggravated by right leg pain and loss of

6 Transcript, 31.

7 Id. 36-37.

8 Id. 36.

9 Id. 30.

10 Transcript, Claimant Exhibit No. 24, 526-527.

11 Id. 527.

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movement as well as feet problems, Ms. Fox moved more slowly and had to be more deliberate with all of her activities, particularly with lifting and during altercations. "12 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."13

Our Findings

Disability Relating to Primary Injury

Noting no party has disputed this issue, we find the employee sustained permanent partial disability relating to occupational disease sustained on or about November 3, 2008, in the amount of 12.5% to the right foot, at the 150-week level (18.75 weeks) and permanent partial disability of 5% to the left foot, at the 150-week level (7.5 weeks).

Preexisting Disabilities14

Right Knee

Based on the employee's testi