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 expert opinion we find the employee sustained a preexisting disability in the amount of 20% of her right lower extremity rated at the knee.12

9 Id. Claimant Exhibit No. 24, 526.

10 Transcript, 527.

11 Id. 528.

12 We note the absence of any medical opinions regarding the employee's preexisting disabilities other than that of Dr. Volarich.

Improvee: Enrika Fox

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We find employee had preexisting disability of 17% of the body as a whole related to the lumbar and cervical spine. She continues to experience back pain exacerbated by the altered gait resultant from her right knee patellofemoral syndrome and tendonitis.

We find the employee had preexisting disability of 12.5% of the right 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.

We find that each of the foregoing disabilities constituted a hindrance or obstacle to employment by having the potential to combine with disability from the employee's primary injury to cause a greater degree of disability than would have resulted in the absence of the condition.

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 pelvis resultant from the primary injury in combination with preexisting disability to her right knee, lumbar spine, and right foot. In so finding, we rely on Dr. Volarich's expert medical opinion on the issue of "synergy". We further rely on the employee's credible testimony regarding the combined effects of her disabilities as additional substantial evidence of a synergistic effect. Dr. Volarich's credible testimony makes the case for a synergistic relationship between the employee's disabilities across the board. Although Dr. Volarich's testimony convinces us there is more likely than not some degree of synergy associated with the employee's primary pelvis injury and her preexisting bilateral carpal tunnel syndrome, right shoulder and left foot disabilities, we find there is insufficient evidence to quantify the degree of synergy attributable to these conditions.

In conclusion, we quantify the Second Injury Fund's liability for permanent partial disability attributable to synergistic interaction between disability to the employee's pelvis resultant from her primary injury and the employee's preexisting right knee, lumbar spine, and right foot based on a loading factor of 10%.

Section 287.220 RSMo creates the Second Injury Fund. Section 287.220.2 applies to injuries occurring prior to January 1, 2014, and provides when and what compensation will be paid by the Fund in "all cases of permanent disability where there has been previous disability." Id. This section provides, in pertinent part:

. . If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation, or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, . . . receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury, or if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of the employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for (emphasis added). . .

Missouri courts have established the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a

Injury No.: 10-011363

Employee: Enrika Fox

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greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

To find liability of the Second Injury Fund for permanent partial disability benefits,

[T]he claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. This is referred to as the "synergistic effect." If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability.

Winingear v. Treasurer of State, 474 S.W.3d 203, 207-08 (Mo. App. 2015). See also Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund, 126 S.W.3d 386 (Mo. 2004) and Calvert v. Treasurer of State, 417 S.W. 3d 299 (Mo. App. 2013).

In order to prove a claim for permanent partial disability against the Second Injury fund, an employee must demonstrate that her preexisting disability combines with a subsequent compensable injury "so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury considered alone and of itself (emphasis added)."13

Simply put, the fund is liable only for the degree of the combined disability that exceeds the numerical sum of the pre-existing disabilities and the disability from the last injury. This excess for which the fund is liable is referred to as the synergistic effect of the combined disabilities (emphasis added).

Treasurer of Missouri-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455,467. (Mo. 2015).

In Witte, the Supreme Court held that 287.220.1 imposes no numerical threshold for permanent partial disability from the employee's last injury. Id. at 467.

13 Section 287.220.2. RSMo.

Injury No.: 10-011363

Employee: Enrika Fox

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Witte further instructs that, for purposes of triggering Fund liability based on preexisting disability, 287.220.1 does not allow combination of a major extremity disability with a body as a whole disability but instead "expresses the minimum thresholds only in terms of a singular injury to either the body as a whole or a major extremity". *Id.* 465.

However, once the threshold of either fifty weeks of compensation for a body as a whole injury or fifteen percent permanent partial disability of a major extremity is met, pursuant to the statute's plain and ordinary meaning "all preexisting injuries, without the threshold limitation, are to be considered" in the calculation of Fund liability. *Id.* 467.

Section 287.220 RSMo creates the Second Injury Fund. Section 287.220.2 applies to injuries occurring prior to January 1, 2014, and provides when and what compensation will be paid by the Second Injury Fund in "all cases of permanent disability where there has been previous disability." This section provides, in pertinent part:

> Lay testimony alone can constitute substantial evidence of the extent of disability to an injury or medical condition. *Goleman v. MCI Transporters*, 844 S.W. 2d 463, 466 (Mo. App. 1993) (overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003); *Griggs v. A. B. Chance Co.*, 503 S.W. 2d 697, 704-705 (Mo. App. 1973). Also, the courts have held that the "testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause and extent of the disability when the facts fall within the realm of lay understanding." *Id.*

As we have found, the employee sustained permanent partial disability to her pelvis consisting of 10% of the body as a whole attributable to her February 22, 2010, accident.

We have further found the employee had preexisting disability consisting of 20% of the right lower extremity rated at the 160-week level (32 weeks), 17% of the body as a whole referable to the lumbar and cervical spine (68 weeks), and 12.5% of her right foot rated at the 50-week level (18.75 weeks). The employee's preexisting right knee disability meets the 15% permanent partial disability of a major extremity threshold required to trigger Second Injury Fund liability pursuant to 287.220.14 As we have found, the employee suffered additional permanent partial disability due to synergistic interaction between the primary pelvic injury preexisting disability to her right knee, lumbar and cervical spine, and right foot. We quantify the Second Injury Fund's liability for permanent partial disability in this case based on a loading factor of 10%.

14 The Second Injury Fund argues that the employee had no preexisting right knee disability because the employee acknowledged that prior to her 2008 injury she worked full duty and that her right knee condition, despite flare-ups, was not constantly an issue. The Second Injury Fund's counsel reasons that, based on the foregoing testimony, the employee's right knee disability did not constitute a "hindrance or obstacle to employment", as required by 287.220. Pursuant to the test established in *Kinsley*, supra, the employee's testimony minimizing the effect of her knee condition prior to her 2008 injury does not preclude our finding that this condition constituted a hindrance or obstacle to employment. We find Second Injury Fund's argument on this point unpersuasive.

Pelvis

$10 \% \times 400 week level =40$ weeks

Right Knee

Lumbar and Cervical Spine

Right Foot

Total Sum of disabilities

Multiplied by Loading Factor

Total

20\% $\times 160 week level =

17 \% \times 400 week level =

12.5 \% \times 150 week level =$

158.75 weeks

We reverse the award and decision of the administrative law judge. We conclude that pursuant to $\S 287.220$ the Second Injury Fund is liable for weekly permanent partial disability at the stipulated rate of $\ 379.22 for 15.87 weeks beginning on the date the employee reached maximum medical improvement, May 15, 2012.

This award is subject to a lien in favor of Truman E. Allen, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Chief Administrative Law Judge Robert Dierkes, issued August 16, 2017, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $\qquad$ day of May 2018.


LABOR AND INDUSTRIALRELATIONS COMMISSION


VACANT

Member

Curtis E. Chick, Jr., Member

1. Are any benefits awarded herein? No additional benefits are awarded.
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: February 22, 2010.
5. State location where accident occurred or occupational disease contracted: Audrain 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 happened or occupational disease contracted: Employee was walking into work at the correctional facility in Vandalia, Audrain County, Missouri, on an icy parking lot, when she slipped on the ice, fell, and fractured her tailbone.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Parts of body injured by accident or occupational disease: Tailbone, pelvis, body as a whole.
14. Nature and extent of any permanent disability: 10% permanent partial disability of the body as a whole.
15. Compensation paid to-date for temporary disability: None.

1. Value necessary medical aid paid to date by employer/insurer? $\ 3083.75.
2. Value necessary medical aid not furnished by employer/insurer? N/A
3. Employee's average weekly wages: $\ 568.83.
4. Weekly compensation rate: $\ 379.22.
5. Method wages computation: Stipulation.

Second Injury Fund liability: None. The claim against the Second Injury Fund is denied in full.

Employee: Enrika Fox

Injury No. 10-011363

Dependents: N/A

Employer: Missouri Department of Corrections (settled)

Insurer: Self-insured (settled)

Address: 2017

The evidentiary hearing in this case was held on June 8, 2017, in Jefferson City, Missouri. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on August 8, 2017. The hearing was held to determine the liability, if any, of Second Injury fund for permanent partial disability.

For purposes of this hearing, the parties entered into a stipulation agreement as follows:

1. The Division of Workers' Compensation has jurisdiction over this case;
2. Venue for the hearing is proper in Audrain County and adjoining counties; the parties agree to holding the hearing in Cole County;
3. The claim is not time-barred by Section 287.430, RSMo;
4. The notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation;

**Employee:** Enrika Fox

**Injury No. 10-011363**

1. Both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;

1. That the average weekly wage was 568.83 with a compensation rate of 379.22 for permanent partial disability benefits;

1. That Employee sustained an accident arising out of and in the course of her employment with the Missouri Department of Corrections on February 22, 2010 in Audrain County, Missouri.

The evidence consisted of the testimony of Claimant, Enrika Fox, as well as the narrative reports of Dr. David Volarich, the deposition and narrative reports of Dr. Craig Aubuchon, Stipulations of settlements and medical records.

Claimant was born August 8, 1976. Claimant has been employed with the Missouri Department of Corrections since 1998. As stipulated, Claimant sustained an accident arising out of and in the course of her employment in Audrain County, Missouri on February 22, 2010. The accident occurred as Claimant was walking into work at the correctional facility in Vandalia, Audrain County, Missouri, on an icy parking lot, when she slipped on the ice, fell, and fractured her tailbone. A stipulation for compromise settlement with Employer was approved on February 1, 2013, by Administrative Law Judge David Zerrer. The settlement was based upon a permanent partial disability of 10% of the body as a whole at the pelvis.

The sole issue to be decided is the liability, if any, of the Second Injury fund for permanent partial disability benefits.

Regarding Claimant's claim against the Second Injury Fund for permanent partial disability, Claimant testified about a prior right knee condition, bilateral carpal tunnel syndrome, recurring headaches, low back pain, neck pain, right shoulder pain, and bilateral plantar fasciitis.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Enrika Fox

Injury No. 10-011363

Claimant began complaining of right knee pain in July 2004 when she felt a pop in her right knee when getting out of a vehicle. She testified that she was on light duty for a few weeks, but eventually returned to full duty. There was no surgery. Claimant continued to perform her job which, as detailed above, required prolonged walking and standing on concrete. Dr. Volarich opined that Claimant sustained a permanent partial disability of 20% of the right knee due to patellofemoral syndrome.

Claimant 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. Claimant settled her workers' compensation claim (Injury No. 03-100593) for 12.5% permanent partial disability of each wrist. Dr. Volarich opined that Claimant sustained a permanent partial disability of 20% of each wrist due to bilateral carpal tunnel syndrome.

Sometime around June 29, 2006, Claimant began experiencing recurring headaches. She was treated with Topamax, and, even after stopping the medication, she has not experienced a migraine since 2008. Claimant testified that she gets an occasional stress headache, but does not experience migraines anymore and her ability to perform her job duties was not affected by headaches. Dr. Volarich opined that Claimant sustained a permanent partial disability of 5% of the body as a whole due to migraines.

In March 2008, Claimant fell down a flight of stairs when the handrail broke. Claimant sustained permanent disability to her low back, neck and right shoulder. Claimant settled her workers compensation claim for a permanent partial disability of 12.5% of the body as a whole related to the lumbar spine, a permanent partial disability of 4.5% of the body as a whole related to the cervical spine, and a permanent partial disability of 5% of the right shoulder.

In November 2008, Claimant developed bilateral plantar fasciitis. This condition did not require surgery. Claimant sustained a permanent partial disability of 12.5% of the right foot (150 week level) and 5% of the left foot (150 week level) as a result of the plantar fasciitis.

**Employee:** Enrika Fox

**Injury No. 10-011363**

To find liability of the Second Injury Fund for permanent partial disability benefits, Claimant must establish the last compensable injury — to her tailbone — and the preexisting permanent partial disabilities combine to cause a greater degree of disability than the simple sum of disabilities viewed independently. *Winingear v. Treasurer*, 474 S.W.3d 203 (Mo. App. W.D. 2015). The failure to prove a "synergistic effect" between the last compensable injury and a preexisting disability is grounds for denying Fund liability. *Winingear* at 208.

Claimant attempted to establish synergy through her testimony at hearing and the opinion reports of Dr. Volarich. Dr. Volarich provided a January 9, 2017 addendum to his earlier reports to attempt to explain synergistic effects. His conclusion is illustrative:

During a typical workday some body part hurt her, usually neck, low back, or right knee in particular. It was rare to be completely asymptomatic on a given day. There were days when everything hurt which caused her to miss work, particularly with headaches, or not being able to give her employer 100% which in my opinion is the best example of synergistic effect. (Exhibit 24, page 3.)

Dr. Volarich does not explain how Claimant's injuries combined to create a greater degree of disability, but simply states that different body parts hurt on different days. There is no combination evidence whatsoever.

In addition to those facts and legal conclusions to which the parties stipulated, I find the following:

1. Immediately prior to her February 22, 2010 work accident, Claimant was working as a corrections officer with the preexisting conditions of right knee patellofemoral syndrome, operated bilateral carpal tunnel syndrome, headaches, low back pain, neck pain, right shoulder pain, and bilateral foot pain.

1. The February 22, 2010 accident occurred as Claimant was walking into work on an icy parking lot; Claimant fell on the ice and fractured her tailbone.
2. As a result of the February 22, 2010 accident, Claimant sustained a permanent partial disability of 10 % of the body as a whole related to the pelvis.
3. Claimant failed to establish that the tailbone fracture and the preexisting conditions of right knee patellofemoral syndrome, operated bilateral carpal tunnel syndrome, headaches, low back pain, neck pain, right shoulder pain, and bilateral foot pain combined synergistically to cause a greater disability than the simple sum of the individual disabilities.

The claim against the Second Injury Fund is denied in full.


Made by:


Chief Administrative Law Judge Division of Workers' Compensation