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.:** 10-011363

**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.

The employee filed a timely application for review with the Commission alleging 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. The employee further 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.

Injury No.: 10-011363

Employee: Enrika Fox

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The parties stipulated that the employee sustained an accident arising out of and in the course of her employment on February 22, 2010, when she slipped, fell and fractured her tailbone in an icy parking lot as she was walking into work. On February 1, 2013, an administrative law judge approved a settlement of this claim against the employer, based on 10% permanent partial disability of the body as a whole related to the pelvis. No party has disputed the administrative law judge's determination of permanent partial disability relating to the primary work injury, consistent with the 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 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.

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.

The employee testified that prior to her 2008 injury; she had problems with gripping and using her hands when unlocking doors. She acknowledged that these problems became less of an issue after her 2004 bilateral carpal tunnel release. Dr. Volarich

1 Transcript, 15.

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

Injury No.: 10-011363

Employee: Enrika Fox

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evaluated the employee's preexisting carpal tunnel syndrome as 20 percent in each wrist.³

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 her 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."⁴ After about a year, the employee discontinued taking Topamax. She testified that after her March 31, 2018, injury her migraine headaches ceased to persist. The employee 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.

In our final award of this date relating to Injury No. 08-025433, we determined that the employee sustained permanent partial disability related to her lumbar and cervical spine, attributable to a March 31, 2008, compensable accident. For purposes of this claim, we find that employee's total spinal disability equals 17% of the body as a whole. The employee continues to experience back pain, exacerbated by the altered gait attributable to her right knee disability.

Our final award in Injury No. 08-025433 further assessed 5% permanent partial disability of the right shoulder at the 232-week level attributable to the March 31, 2008, injury, noting that no party disputed this issue.

Our final award relating to Injury No. 08-121816, found the employee sustained permanent partial disability of 12.5% to the right foot and permanent partial disability of 5% to the left foot rated at the 150-week level due to an occupational injury of November 3, 2008, consisting of significant standing and/or walking on hard surfaces in the course of her employment while wearing bulky, inflexible boots.

³ 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).

⁴ Transcript, 35.

Injury No.: 10-011363

Employee: Enrika Fox

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The employee continues to have pain and symptoms associated with her bilateral plantar fasciitis about once or twice a month, lasting from two to seven days. When this condition flares up it affects her gait, causing her to limp when she walks. She is limited in the shoes she is able to wear without causing aggravation or increased pain in her lower extremities.

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

**The 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."5

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."6 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."7

Addressing the synergistic effect of her disabilities, the employee concluded, "It's just hard to function ... when you have problems with everything."8 As a result of the combination of problems resulting from her combined disabilities she feels she is unable to perform even the simplest of tasks.

**Expert Opinion of Dr. David Volarich**

Dr. Volarich evaluated the employee with respect to the February 22, 2010, primary injury on May 15, 2012. He found, based on treatment provided to that date that the employee had reached maximum medical improvement. Dr. Volarich found that the employee sustained 20% permanent partial disability of the body as a whole rated at the pelvis as a direct result of her February 22, 2010, work injury. This rating accounted for ongoing pain, difficulties with movements such as getting in and out of her vehicle, sitting on hard surfaces, and increased pain with weather change. Dr. Volarich reiterated his prior evaluation of pre-existing permanent industrial disabilities that exist and represent a hindrance to the employee's employment or re-employment as outlined in his earlier report dated March 1, 2010.

5 Id. 31.

6 Id. 36-37.

7 Id. 36.

8 Transcript, 30.

Injury No.: 10-011363

Employee: Enrika Fox

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Dr. Volarich further opined that addition of a loading factor was appropriate in evaluating the employee's total disability with respect to her February 22, 2010, injury 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 pint 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..."9 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."10 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."11

Our Findings

Disability Relating to Primary Injury

Noting that no party has disputed this issue, we find the employee sustained 10% permanent partial disability of the body as a whole related to the pelvis in connection with the February 22, 2010, primary injury.

Preexisting Disabilities

We find the employee sustained the following preexisting disabilities:

Right Knee

Based on the employee's credible testimony, especially regarding pain with walking and her altered gait, and Dr. Volarich's ex