Barbara Simmons v. Mercy Hospital St. Louis

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 12-001723

**Employee:** Barbara Simmons

**Employer:** Mercy Hospital St. Louis (settled)

**Insurer:** Mercy Hospital East Communities (settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 5, 2018. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued April 5, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of 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 4th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee failed to prove that she sustained permanent total disability as a result of her January 13, 2012, work injury.

The test for permanent total disability is whether an employee is able to compete in the open labor market. A worker is not required to be inert or completely inactive. He or she is considered totally disabled if unable to return to any normal or reasonable employment. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. See *Carkeek v. Treasurer*, 352 S.W.3d 604, 608 (Mo. App. 2011).

Prior her January 13, 2012 injury, the employee in this case was working full-time and full duty without any physician-imposed restrictions performing sedentary type work. Even after her injury and first surgery, she continued performing her job on a part-time basis until her position was eliminated. At the conclusion of treatment for her January 13, 2012, injury, Dr. Irvine, the employee's treating physician, imposed no restrictions relating to her right shoulder. Employee's own medical expert, Dr. Musich, also imposed no restrictions relating to either the employee's right shoulder or her knees.

Mr. Benjamin Hughes, a certified rehabilitation counselor since 2010, reviewed documents relevant to the employee's medical history, issued a written report and testified by deposition on November 27, 2017, regarding the issue of the employee's employability. Noting that no treating or evaluating physician imposed any work restrictions or limitations designed to protect the employee from future harm, Mr. Hughes concluded that employee could return to her previous line of work and otherwise compete in the open labor market. I consider Mr. Hughes' opinion, based on objective evidence, more credible than the opinion of employee's vocational expert Ms. Delores Gonzales, who relies on the employee's subjective limitations.

For all of the above reasons, I would find the employee in this case entitled only to an award of permanent partial disability benefits against the Second Injury Fund based on preexisting disability of 45% of the right shoulder, 22.5% of the left knee and 17% of the right knee, consistent with recommendation of the Fund's attorney. I respectfully dissent from the majority's decision finding otherwise.

*Reid K. Forrester*, Member

Employee: Barbara Simmons

Injury No.: 12-001723

Dependents: N/A

Employer: Mercy Hospital St. Louis (Settled)

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities (Settled)

Hearing Date: February 1, 2018

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB

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: January 13, 2012
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant was walking on a laminated floor in rubber clogs while clutching mail when she fell.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right shoulder
14. Nature and extent of any permanent disability: 45 % of the right shoulder
15. Compensation paid to-date for temporary disability: Not determined*
16. Value necessary medical aid paid to date by employer/insurer? Not determined*

[^0]

[^0]: * Employer's settlement included disputed amounts of medical and TTD.

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: Qualified for rates noted

1. Weekly compensation rate: $392.17/$392.17

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer previously settled its liability.

1. Second Injury Fund liability: Yes

Beginning on September 8, 2016, the SIF is liable for $392.17 per week and continuing in accordance with the law.

TOTAL: INDETERMINANT

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: Christopher Wagner

WC-32-R1 (6-81)

Injury No.: 12-001723

Page 2

Employee: Barbara Simmons

Injury No.: 12-001723

Dependents: N/A

Employer: Mercy Hospital St. Louis (Settled)

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB

The matter of Barbara Simmons ("Claimant") proceeded to hearing ${ }^{1}$ to determine the liability of the Second Injury Fund. Attorney Christopher Wagner represented Claimant. Assistant Attorney General Joye Hudson represented the Second Injury Fund. Mercy Hospital St. Louis ("Employer") and its Insurer previously reached a compromise of the claim with Claimant.

The parties stipulated that on January 13, 2012, Claimant sustained an accidental injury arising out of and in the course of employment. The parties agreed Claimant was an employee of Employer; venue is proper in the city of St. Louis; Employer received proper notice; and Claimant filed her claim within the time required by law. Claimant's average weekly wage resulted in a rate of compensation equal to $\ 392.17 for both permanent total disability ("PTD") benefits and permanent partial disability ("PPD") benefits. The parties stipulated Claimant reached maximum medical improvement ("MMI") on September 9, 2014.

The issues submitted for determination are 1) the nature and extent of Claimant's permanent disability, and 2) the liability of the Second Injury Fund. Claimant seeks PTD compensation, while the Second Injury Fund asserts it is only liable for PPD benefits.

The exhibits, offered and admitted without objection, were:

Exhibit A - Medical Records from Mercy Hospital

Exhibit B - Denial Letter

Exhibit C - Dr. David Irvine Records

Exhibit D - Dr. Frank Thomas Records

Exhibit E - Stipulation for Compromise Settlement - primary claim

Exhibit F - Dr. Thomas Musich Deposition

Exhibit G - Delores Gonzalez Deposition

Exhibit H - October 3, 2012, Hearing Transcript

Exhibit I - (SIF) Benjamin Hughes Deposition

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[^0]: ${ }^{1}$ On October 3, 2012, Claimant and Employer participated in a hearing to determine whether Claimant's accident arose out of and in the course of employment. The undersigned issued a temporary award dated December 20, 2012, in favor of Claimant, which the Labor and Industrial Relations Commission affirmed. The prior decision will be referred to herein as the "2012 Award." The Second Injury Fund is not challenging the determination.

Issued by DIVISION OF WORKERS' COMPENSATION

Based on a review of all the evidence and my observations of Claimant's demeanor during her testimony at both hearings, I find she is a credible witness. Considering the testimony of Claimant, the medical records and other evidence admitted, and the expert testimony, I make the following findings of fact:

Claimant is a 64-year-old high school graduate with some community college credits whose work since the early 1970s has consisted of sedentary office work in the health care industry. She worked for Employer from 2006 through the end of August 2012. Claimant has not worked since leaving Employer, although she had planned to work until she reached the age of 65.

Claimant has a history of bilateral knee disability. At the age of 16, she dislocated her left knee. Medical treatment at that time was limited and did not require surgery. However, over the years she developed "loose" knees bilaterally, her left knee "locked up," and she consciously avoided stressing her knees. Eventually, she required orthopedic treatment. Dr. Frank Thomas diagnosed bilateral knee osteoarthritis in 2008, and on January 30, 2009, performed a left knee partial medial meniscectomy, chondroplasty of the medial and lateral femoral condyles, and excision of two loose bodies. On November 19, 2010, Dr. Thomas performed right knee chondroplasty of the medial femoral condyle and excision of a large loose body.

Claimant recovered well post-surgery but continued to experience significant knee pain. She could not stand for more than two hours at a time, walk for more than 90 minutes, or ascend or descend staircases with regularity. She moved her bedroom to the first floor to avoid the stairs. Bilateral knee pain prevented her from getting on the floor to play with her grandchildren. She specifically chose a clerical career, as opposed to retail sales, for example, so she would not have to be on her feet all day.

On January 13, 2012, Claimant fell in the course and scope of her employment and sustained the accidental shoulder injury that is the subject of this claim. The details of the accident are contained in the 2012 Award. Dr. David Irvine, her treating physician, immediately performed an open reduction and internal fixation of a comminuted right proximal humerus fracture. Despite several months of physical therapy, Claimant continued to have pain and mobility problems. When x-rays revealed poor consolidation of the humeral fracture, Dr. Irvine undertook a second surgical procedure on October 18, 2012, to remove the hardware and replace it with surgical implants of a humeral fracture stem and humeral head. Claimant commenced several months of physical therapy but again problems continued.

In March 2013, a CT scan of the right shoulder revealed a small rotator cuff tear. Dr. Irvine performed Depo-Medrol injections on May 7, 2013, and September 30, 2013, which provided only temporary relief. Another CT scan in December 2013 was suspicious for a full thickness rotator cuff tear. On March 11, 2014, Dr. Irvine discussed surgical options including exploration with possible rotator cuff repair, conversion to total shoulder arthroplasty, or conversion to reverse total shoulder arthroplasty. Claimant delayed the surgical option and opted for another Depo-Medrol injection.

WC-32-R1 (6-81)

Injury No.: 12-001723

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant last saw Dr. Irvine on September 9, 2014. At that time, the physical exam revealed limited elevation, which prohibited her from placing objects in a high cabinet and caused her to have difficulty doing her hair. Dr. Irvine noted Claimant was doing well and "currently is tolerating her limitations. She will continue with her activities as tolerated and we will see her back yearly for x-rays unless she has any increased pain...." He did not release her to return to work and was silent as to whether or not he would impose work restrictions.

Claimant chose not to proceed with a third surgery because of the low probability of success. As noted by Dr. Irvine, she "has learned to live with her limitations." The condition of her right shoulder has affected Claimant's ability to function normally. She cannot easily raise her right arm overhead to wash or fix her hair. She cannot reach behind her back and her husband has to help her get dressed. She cannot do any constant motion with her right arm. She used to be a side sleeper, but rolling onto her right side now wakes her up, so she tries to sleep on her back. Since 2012, she has had swelling in her fingers. Her ability to use a computer or write with a pen is limited to short time periods. Claimant made significant changes to adapt to her shoulder injury. She installed hardwood floors because she could not vacuum the carpet, purchased a new car with automatic transmission, and adjusted how she cooks large meals. The Social Security Administration approved Claimant for benefits based on an application that did not mention any disabilities other than her right shoulder.

Expert Testimony

Dr. Thomas Musich evaluated Claimant at her attorney's request on January 22, 2015, issued a report and testified by deposition. Significant findings for the right shoulder included visual atrophy, and significantly reduced range of motion with severe pain upon testing. Findings regarding the bilateral knees were reduced range of motion and positive McMurray testing indicative of internal derangement. Dr. Musich did not note any permanent restrictions regarding Claimant's right shoulder or bilateral knees. He rated permanent partial disability of 70% of the right upper extremity at the shoulder level secondary to the primary work injury. He rated permanent partial disability of 30% of both lower extremities at the knee due to symptomatic osteoarthritis and internal derangement preexisting the work injury, and found the knees to have been a hindrance and obstacle to her employment. He explained how the combination of disabilities to three of four limbs combines to create added difficulties in daily and work activities. Dr. Musich concluded if Claimant were incapable of obtaining and maintaining employment in the open labor market as determined by a vocational expert, she would be permanently and totally disabled due to a combination of her primary and preexisting disabilities, her advanced work age, and her limited education/training.

Delores Gonzalez is a vocational rehabilitation counselor who evaluated Claimant at her attorney's request on November 21, 2015, issued a report and testified by deposition. She did not think Claimant was employable in the open labor market. In addition to the limitations noted by Dr. Musich with regard to dressing, lifting everyday objects and pain, Ms. Gonzalez noted Claimant's swollen fingers make even sedentary work difficult. She explained even before the primary injury, Claimant was significantly limited to sedentary work because of her bilateral knee conditions. She concluded Claimant is not capable of working because of the primary injury in combination with her preexisting physical disabilities.

WC-32-R3 (6-81)

Injury No.: 12-061723

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

The Second Injury Fund hired Benjamin Hughes, a rehabilitation counselor, to address Claimant's employability. He reviewed relevant documents, issued a report on July 6, 2017, and testified by deposition, but he never met Claimant in person. Mr. Hughes found it compelling that no treating or evaluating physician imposed any restrictions. Due to the lack of formal restrictions, and regardless of her subjective limitations, Mr. Hughes concluded Claimant could return to her previous line of work and otherwise work in the open labor market. Without a physician "to specifically spell out any kind of limitations or restrictions that would be put in place to protect the patient from future harm," Mr. Hughes thought it was "very difficult to remove a person from the open labor market." He did not give any weight to Claimant's self-reported complaints/limitations, or to the fact that Dr. Irvine acknowledged Claimant had limitations, was currently tolerating her limitations, and should continue with her activities as her limitations allowed.

RULINGS OF LAW

The claimant in a workers' compensation case has the burden to prove all the essential elements of her claim, including the causal connection between the injury and work. *Jefferson City Country Club v. Pace*, 500 S.W.3d 305, 313 (Mo. Ct. App. 2016). The claimant does not have to establish the elements of his case on the basis of absolute certainty; it is sufficient if he shows them by reasonable probability. *Moreland v. Eagle Picher Techs., LLC*, 362 S.W.3d 491, 504 (Mo. Ct. App. 2012). Probable means founded on reason and experience which inclines the mind to believe but leaves room for doubt. *Id.* (citations omitted). Claimant has met the burden required for recovering the benefits she seeks.

Claimant seeks to recover permanent total disability from the Second Injury Fund. In deciding whether the Fund has any liability, the first determination is the degree of disability from the last injury. *Patterson v. Cent. Freight Lines*, 452 S.W.3d 759, 764 (Mo. Ct. App. 2015) (citations omitted). If the claimant's last injury alone rendered her PTD, then preexisting disabilities are irrelevant, the Fund has no liability, and the employer is responsible for the entire amount. *Id.* The [fact finder] can consider all of the evidence in determining the amount of an employee's PPD and is not obligated to award the same percentages assigned by experts. *Id.* at 767.

There is no dispute Claimant's right shoulder injury at work on January 13, 2012, resulted in significant disability. Her testimony regarding the loss of function of her right upper extremity was credible, consistent with the medical documentation, and compelling. Claimant demonstrated very significant limitations of her right shoulder, and both doctors measured marked limitations of range of motion. The loss of motion affects daily activities of living such as grooming, sleeping, cleaning and writing. Swelling and pain are daily occurrences. Dr. Musich issued a rating of 70% permanent partial disability of the right shoulder. There are no other ratings.

Based on the substantial and credible evidence of the record, I find the permanent disability associated with the January 13, 2012, work accident is equal to 45% PPD of the right shoulder. This finding is supported by Claimant's testimony, records, expert testimony and other

WC-32-R3 (6-81)

Injury No.: 12-001723

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

relevant evidence. This is a permanent partial disability, and does not in and of itself render Claimant permanently and totally disabled.²

The standard for addressing the issue of total disability is set forth in *Treasurer of the State of Missouri v. Majors*, 506 S.W.3d 348, 353-54 (Mo. Ct. App. 2016), *reh'g and/or transfer denied* (Nov. 1, 2016), *transfer denied* (Jan. 31, 2017) (citations omitted):

> Under Section 287.020 RSMo., the term 'total disability' is defined as the "inability to return to any employment and not merely... inability to return to the employment in which the employee was engaged at the time of accident." *Scott v. Treasurer of State-Custodian of Second Injury Fund*, 417 S.W.3d 381, 386 (Mo.App.2014). The well-established test for determining permanent total disability is "whether the worker is able to compete in the open labor market." *Id.* at 387 (quoting *Molder v. Missouri State Treasurer*, 342 S.W.3d 406, 411 (Mo.App.2011). "The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition." *Id.* "Whether a particular employee is permanently and totally disabled is a factual question." *Rader v. Werner Enterprises, Inc.*, 360 S.W.3d 285, 301 (Mo.App.2012).

A determination of permanent total disability focuses on the ability or inability of the employee to perform the usual duties of various employments in the manner that such duties are customarily performed by the average person engaged in such employment. *Gordon v. Tri-State Motor Transit*, 908 S.W.2d 849 (Mo.App. S.D. 1995).

I find the substantial persuasive evidence establishes Claimant is totally disabled and permanently unable to compete in the open labor market. Her testimony, the expert evidence, and the well-founded vocational analysis supports such a finding of total disability. Claimant desired to maintain employment for financial and social reasons, so her current inability to work reflects the sincerity of her complaints. The evidence establishes Claimant has legitimate permanent disabilities that are incompatible with the ability to secure and maintain employment in the open labor market. Dr. Musich's opinions support Claimant's disabilities, as do the findings of the treating doctor, Dr. Irvine.

In addition, the credible vocational evidence also supports the outcome. Ms. Gonzalez's opinion Claimant is unable to work is far more persuasive than Mr. Hughes's contradictory opinion. Ms. Gonzalez considered all the relevant limitations, whether specifically enumerated by a doctor or established by credible testimony consistent with medical findings. Thus, she considered Claimant's walking/standing/kneeling limitations, her problems relying on her nondominant hand, and her limitations of the upper extremities. In contrast, Mr. Hughes only considered physical limitations imposed by a physician and ignored all other limits, no matter how credible. For example, Dr. Irvine recognized Claimant has limitations, but he did not specifically quantify those limits; Mr. Hughes treats the limits as if they do not exist. As it is

² The SSD award purportedly based on the shoulder alone is not a relevant or binding determination in this case. *Brashers v. Treasurer of State as Custodian of Second Injury Fund*, 442 S.W.3d 152, 162 (Mo. Ct. App. 2014) ("Receipt of Social Security disability benefits is not proof by itself that [a claimant] was [PTD] for purposes of Missouri's Workers' Compensation Act." Citing *Farmer-Cummings v. Future Foam, Inc.*, 44 S.W.3d 830, 834 n. 1 (Mo.App.W.D.2001)).

WC-32-R1 (6-81)

Injury No.: 12-001723

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

persuasive and consistent with the evidence, Ms. Gonzalez's opinion is compelling evidence of total disability.

Establishing her total disability alone is not sufficient for a successful SIF claim. Section 287.220 sets forth the provisions of the Fund and imposes liability on the Fund in certain cases of permanent disability where there is a preexisting disability. *Lawrence v. Treasurer of State - Custodian of 2nd Injury Fund*, 470 S.W.3d 6, 13 (Mo. Ct. App. 2015) citing *Lewis v. Treasurer of State*, 435 S.W.3d 144, 152 (Mo.App. 2014). For the Fund to be liable, a claimant must have had a preexisting permanent partial disability that existed at the time of the work-related injury and that "was of such seriousness as to constitute a hindrance or obstacle to employment or re-employment." *Concepcion v. Lear Corp.*, 173 S.W.3d 368, 371 (Mo.App. 2005). If a claimant establishes that the preexisting partial disability combined with a disability from a subsequent injury to create a permanent and total disability, then the Fund is liable for that portion of disability that is attributable to the preexisting condition. *Lawrence* at 13.

Claimant's preexisting bilateral knee disability qualifies her for Second Injury Fund benefits. Her longstanding history of bilateral knee problems necessitated sedentary employment, vastly restricted her vocational options, and were serious enough to constitute a hindrance and obstacle to employment.

Furthermore, Claimant has proven her permanent total disability is the result of the combination of the primary injury and the preexisting disability at the time of the primary injury. Dr. Musich and Ms. Gonzalez specifically concluded the total disability is due to the combination of her bilateral knees and right upper extremity -- three out of the four extremities. The condition of her bilateral knees has always necessitated sedentary employment. The condition of her right upper extremity excludes even sedentary employment. Claimant's inability to compete in the open labor market is due to the combination of her preexisting bilateral knee disability, which was serious enough to constitute a hindrance and obstacle to employment, and the disability of her right shoulder caused by the work injury on January 13, 2012.

Claimant became entitled to PTD compensation from the Second Injury Fund once she reached maximum medical improvement, which occurred upon the conclusion of treatment with Dr. Irvine on September 9, 2014. The Second Injury Fund is entitled to a credit against PPD payments by an employer. *Harris v. Treasurer of State*, 192 S.W.3d 531, 538 (Mo.Ct. App. 2006). Here, Employer is responsible for 45% PPD of the right shoulder and the rate for PPD benefits is the same as for PTD benefits. Thus, the SIF is liable for weekly benefits starting 104.4 weeks after MMI in the amount of $392.17 continuing in accordance with the law.

WC-32-R3 (6-81)

Injury No.: 12-001723

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant is permanently and totally disabled due to a combination of her primary work injury and the preexisting disability that was a hindrance or obstacle to employment. The Second Injury Fund is liable for permanent total disability benefits as outlined in this award and provided by law.

The compensation awarded Claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of attorney Christopher Wagner for necessary legal services rendered.

I certify that on April 5, 2018, 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.

By __________________________


Made by:

KARLA OGRODNIK BORESI

Administrative Law Judge

Division of Workers' Compensation