Linda Ford v. Pauwels Transformers

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 05-061902

**Employee:** Linda Ford

**Employer:** Pauwels Transformers

**Insurer:** Liberty Mutual Insurance

**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. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion.

The ALJ's award incorrectly suggests that Dr. Woiteshek failed to review Dr. Coyle's medical records.¹ Dr. Woiteshek's report of February 20, 2013, pursuant to his independent medical examination of employee on February 13, 2013, specifically referenced his review of Dr. Coyle's records.² Employer's attorney correctly notes the ALJ's misstatement regarding Dr. Woiteshek's review of Dr. Coyle's records was dicta and does not form the basis for a reversal of the ALJ's findings regarding the nature and extent of the employee's permanent partial disability.

We affirm and adopt the award of the administrative law judge as supplemented herein.

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.

The award and decision of Administrative Law Judge Lorne J. Baker, issued December 26, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 10th day of October 2018.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**SEPARATE CONCURRING OPINION FILED**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

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¹ See Award, p.9, FN 2.

² Transcript, 529.

Employee: Linda Ford

I did not participate in the August 8, 2018, oral argument in this matter, held prior to my appointment to the Commission. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the administrative law judge's decision in this case should be affirmed. I further concur in the correction noted in the majority's supplemental opinion.

Robert W. Cornejo, Chairman

Impry No.: 05-061902

Employee: Linda Ford

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's award affirming the administrative law judge (ALJ) in this case.

The ALJ declined to award future medical care for employee's 2005 work-related back injury, finding:

> No medical expert has testified Claimant is in need of treatment to cure or relieve her from the effects of the primary injury. In addition, her own expert, Dr. Woiteshek, placed her at MMI [maximum medical improvement] when he examined her on February 20, 2013. The Court finds Claimant has received all medical treatment necessary to cure and relieve her from the effects of the primary back injury, and Employer is not liable for any future medical treatment.

I disagree with the above finding. On April 7, 2009, employer authorized Dr. James J. Coyle to evaluate the employee subsequent to Dr. Mirkin's October 20, 2005, back surgery. Dr. Coyle noted that the employee "notes that she never got relief from this surgery... She is now almost four years out from her surgery and still considers herself significantly disabled." At that time, Dr. Coyle declined to suggest further surgery. He instead recommended conservative treatments including aquatic therapy and an epidural steroid injection. He further suggested evaluation of the employee's pain medications.

Less than two months later, on May 27, 2009, Dr. Coyle saw employee for follow up treatment. On that date, he noted that employee's pain appeared to be both mechanical and positional and that she had nondermatomal dysesthesia in both lower extremities. He noted, "[W]e are running out of nonsurgical options for her." Approximately eight months later, on February 2, 2010, Dr. Coyle opined that the employee could get relief from a surgical reconstruction procedure and indicated a willingness to offer employee that option. At that time, Dr. Coyle specifically stated his impression that the proposed reconstruction "would be related to [the employee's] injury of May 5, 2005 and subsequent failure."

The employee scheduled reconstructive surgery with Dr. Coyle for April 22, 2010. While visiting employee in the hospital pre-op holding area that day, Dr. Coyle learned that she had declined to have ureteral stents placed and complained that she had not been informed of the details of the surgery. The employee stated that her experience that day reminded her of her prior surgery by Dr. Mirkin four and a half years earlier. Describing employee as hysterical, crying, and distraught, Dr. Coyle determined she was not predisposed toward surgery and discharged her to go home. Dr. Coyle's discharge summary concluded, "She will follow up in the office for further evaluation and treatment (emphasis added)."

1 Award, 8-9.

2 Transcript, 276.

3 Id. 274.

4 Id. 273.

5 Id. 305.

Implyyee: Linda Ford

- 2 -

The ALJ's award includes the following testimony regarding employee's current physical complaints:

Claimant describes her typical day with an inability to sleep comfortably the night before and that back pain will awaken her after two hours of sleep. When she arises in the morning she takes her medications, which take up to three hours to take effect.

Claimant performs only minimal activities during the day such as watching television and reading. She is required to lie down or recline once or twice during the day to alleviate back pain. Claimant spends most of her day in a recliner with her feet up or on a couch with her legs up on the couch to take pressure off her ailing back. 6

Employee produced records of her primary care physician Dr. Brockman documenting continued treatment for pain management. At the September 20, 2017, hearing, employee testified that she had discontinued Fentanyl for almost a year but continued to take Lyrica for nerve damage, a muscle relaxer, and oxycodone for breakthrough pain.

Section 287.140.1 RSMo places on the claimant the burden of proving entitlement to benefits for future medical expenses. The claimant satisfied this burden, however, merely by establishing a reasonable probability that he will need future medical treatment. Nonetheless, to be awarded future medical benefits the claimant must show that the medical care "flows from the accident".7

The majority's determination that the employee attained MMI as of June 6, 2006, does not preclude a finding that she is in need of future medical. The above described evidence in the record, including employer's offer of a second, reconstructive surgical procedure and employee's rejection of same, demonstrates a reasonable probability that claimant is in need of additional medical treatment and that this need flows from her compensable injury of May 5, 2005.

Because the majority concludes otherwise, I respectfully dissent.

Curtis E. Chick, Member

6 Award, p.8.

7 Conrad v. Jack Cooper Transp. Co. 273 S.W.3d 49, 51 (Mo App 2008).

TI1671-0301

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

AWARD

Employee: Linda Ford

+

Dependents: N/A

+

Employer: Pauwels Transformers

+

Additional Party: SIF

+

Insurer: Liberty Mutual Insurance

+

Hearing Date: September 20, 2017

Injury No.: 05-061902

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: September 20, 2017

Checked by: LJB

FINDINGS OF FACT AND RULINGS OF LAW

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: May 5, 2005
5. State location where accident occurred or occupational disease was contracted: Franklin County, MO
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

injured he lower back when trying to move a heavy transformer that was stuck on an assembly line.

1. Did accident or occupational disease cause death? No
2. Part(s) of body injured by accident or occupational disease: Low back/Body as a whole
3. Nature and extent of any permanent disability: 35% of the body as a whole at the level of the lumbar spine
4. Compensation paid to-date for temporary disability: $6,131.54
5. Value necessary medical aid paid to date by employer/insurer? $87,112.20

WC-32-R1 (6-81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

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

1. Employee's average weekly wages: 577.92

1. Weekly compensation rate: 385.28/$354.05

1. Method wages computation: By agreement

**COMPENSATION PAYABLE**

1. Amount of compensation payable: 35% permanent partial disability of the BAW at the lumbar spine by Employer

49,567.00

1. Second Injury Fund liability: Denied

TOTAL: 49,567.00

1. Future requirements awarded: Denied

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 an attorneys' lien in the amount of 25% of all payments. Three-fourths of the total attorneys' fees awarded are hereunder in favor of attorney Jeffrey Gault for necessary legal services rendered to the claimant and one-fourth of the total attorneys' fees awarded are hereunder in favor of the attorney Mark Rudder for necessary legal services rendered to the claimant.

WC-32-R1 (6-81)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

Employee: Linda Ford

Dependents: N/A

Employer: Pauwels Transformers

Additional Party: SIF

Insurer: Liberty Mutual Insurance

Injury No.: 05-061902

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJB

The matter of Linda Ford ("Claimant") proceeded to hearing on September 20, 2017, to determine the liability of Pauwels Transformers ("Employer") and the Second Injury Fund ("SIF") regarding the benefits due Claimant under the Missouri Workers' Compensation Act ("Act"). Attorney Jeffrey Gault represented Claimant. Attorney Brad McChesney represented Employer. Assistant Attorney General Caroline Bean represented the SIF.

The parties stipulated on or about May 5, 2005, Claimant sustained an accidental injury, arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in Franklin County, Missouri. The parties stipulated Claimant was an employee of Employer and to the applicable rates of compensation were 385.28 for total disability benefits and 354.05 for permanent partial disability ("PPD") benefits. The parties further stipulated venue is proper in the City of St. Louis, Employer received proper notice, and Claimant filed the claim within the time required by law. Employer paid $6,131.54 in temporary total disability ("TTD") benefits and paid medical benefits totaling $87,112.20. It was further stipulated that should an award be written in Claimant's favor, attorney Jeffrey Gault shall be awarded 75% of the total attorneys' fees for necessary legal services rendered to claimant and 25% of the total attorneys' fees awarded shall be awarded to Claimant's previous attorney, Mark Rudder, for necessary legal services rendered to Claimant.

The issues for determination are: (1) Nature and extent of permanent partial disability or permanent total disability against Employer (2) Nature and extent of permanent partial disability or permanent total disability against SIF (3) Future medical benefits from Employer and (4) Date of maximum medical improvement ("MMI").

At the hearing, Claimant testified in person and offered twenty exhibits, including the depositions of Dr. Dwight Woiteshek and James Israel. Employer offered one exhibit, the rating report of Dr. Peter Mirkin. The Second Injury Fund offered seven exhibits, including the depositions of Claimant and Gary Weimholt. All exhibits were offered without objection and admitted into evidence.

For purposes of judicial economy, this matter was tried in conjunction with a subsequent claim, Injury No. 06-061036.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

Claimant is an unemployed, 53-year-old single woman with one adult child and no dependents. She resides in St. Clair, Missouri with her sister. She is a high school graduate and was honorably discharged after serving three years in the United States Army.

Following her stint in the military, Claimant worked as a security guard and in a fast food restaurant for about one year in Missouri. She then moved to Savannah, Georgia, where she worked as a waitress for three years. Claimant moved back to Washington, Missouri, where she started waitressing at Bartholomew's restaurant in 1991 and worked part-time at a McDonald's in the kitchen for several months. Beginning in 1995, she was a surface mount technician performing assembly line work for Trans Tech Incorporated ("TTI"), a company which manufactures circuit boards for vending machines. She continued to work at Bartholomew's part-time but stopped in 1997 when the restaurant closed. She did not have any physical problems or injuries from or during her work with those employers. She was laid off from TTI in 2001 and next found work with Employer in August 2001. She stopped working with Employer in February 2007 and was approved for Social Security Disability the same year.

Claimant started working for Employer in the winding department as a machine operator performing assembly line work. She worked eight hours a day, forty hours a week with occasional overtime. The work was very hand intensive and required constant standing. She later switched into the electrical wiring department, which was also hand intensive. The job required cutting wires, cleaning out copper, and making connections using air pressure guns. In addition, she assisted in moving the units up and down the assembly line which required pushing and pulling. She sometimes picked up reels of wire to move them to different work areas.

On May 5, 2005, Claimant was working in the electrical wiring department with very large wind forms on a mechanical line. She was helping push a heavy wind form transformer that was stuck on the assembly line when she felt like "something pulled or popped in (her) lower back." She felt immediate pain in her lower back but continued to work her shift. She reported the injury to her supervisor but felt she would be fine and didn't need to go to the doctor. However, by the next day her back was in such pain she could hardly stand. She was scheduled to go out of town but stayed home, instead, due to her back pain.

Claimant was sent by Employer to Unity Corporate Health ("Unity") on May 10, 2005, where she was diagnosed with a left lower back strain and mid-back strain, placed on light duty, and told to return to the clinic in one week for reevaluation. She presented again sooner, on May 12, 2010, because of her worsening left lower back pain and was taken off work. Claimant stayed off work and was prescribed physical therapy on May 16, 2005. She continued to follow up at Unity, perform physical therapy, and take medication. Due to her ongoing complaints, an MRI of the lumbar spine without contrast was performed on May 31, 2005. The MRI revealed a radial tear to the left of her L4-5 midline and a mild central disk protrusion at L5-S1, with asymmetric disk bulging on the right at the L5-S1 neural foramina. The MRI was compared to Claimant's previous 2003 MRI exam, and both the L4-5 and L5-S1 areas of abnormality were deemed somewhat slightly worsened. Dr. Keefe at Unity diagnosed her with a lumbar disc herniation with left sciatic pain and recommended a referral to a back surgeon.

WV-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

Dr. Peter Mirkin, an orthopedic spine surgeon, examined Claimant on June 13, 2005. His initial impression was Claimant had degenerative disc disease and small disc protrusions. He recommended aggressive therapy and epidural steroids, and placed her on sedentary work duty. She returned to Dr. Mirkin on June 24, 2005, prior to her next scheduled appointment, with increasing back pain which she attributed to therapy. Dr. Mirkin prescribed a muscle relaxant.

Claimant followed up with Dr. Mirkin on June 29, 2005, with complaints of persistent pain in her back and down her legs. On examination, Dr. Mirkin found limited range of motion of her spine and noted the straight leg raise test elicited buttock pain. He wanted her to continue with therapy and work light duty. She returned for her next follow-up visit on July 15, 2005, Claimant told Dr. Mirkin she could not live with the pain anymore. On exam, Claimant walked with a limp, had limited range of motion of her lumbar spine, had difficulty heel and toe walking, and had buttock pain bilaterally during the straight leg raise. At this time, Dr. Mirkin recommended an anterior/posterior lumbar decompression and fusion. The procedure was performed on October 20, 2005.

Claimant began physical therapy and continued to follow up with Dr. Mirkin post-surgery. On November 30, 2005, Dr. Mirkin felt she could go back to work light duty. However, he noted at her February 1, 2006, appointment she had resumed heavy tobacco use and recommended she cease smoking immediately. She returned on March 1, 2006, in persistent pain but continuing to smoke tobacco on a regular basis and at her March 29, 2006, appointment she returned smelling of tobacco and admitted to still smoking heavily. She complained of pain in her sacrum and down her sacrum and, according to Dr. Mirkin, was argumentative about his recommendations and restrictions. He referred her for a myelogram which was totally benign, and on April 5, 2006, prescribed work hardening. He placed her MMI on May 1, 2006 after she passed her FCE and noted she could return to her normal job activities with the exception of pushing heavy transformers by herself. Dr. Mirkin rated Claimant with 25% PPD, 10% of which was due to her preexisting condition and 15% due to her work injury and subsequent surgery. Dr. Mirkin continued to note in order for her fusion to succeed she needed to terminate her tobacco use.

Receiving no relief from Dr. Mirkin's attempts at treatment, Claimant presented on her own to surgeon Dr. Brett Taylor on March 7, 2007. According to Dr. Taylor, she cried throughout the examination and described a lot of dissatisfaction with her previous medical care. Dr. Taylor describes Claimant as an unfortunate woman who has a chronic illness with a severe exacerbation. Dr. Taylor diagnosed her with failed back syndrome. Dr. Taylor suggested non-operative treatment, including a pain specialist and aqua therapy, as opposed to revision surgery due to its low success rate. Dr. Taylor further opined that prior to any future surgery, Claimant should be off of nicotine and be evaluated by a mental health specialist to assure she was emotionally able to make a decision about undergoing surgery and to have reasonable expectations regarding any surgical success. He was extremely concerned about her emotional well-being should she elect to have surgery in the future.

1 On July 18, 2005, Claimant was sent to Dr. Mirkin's office by Employer because of her excruciating back pain and inability to stand. Due to not yet having clearance from Employer for surgery, Dr. Mirkin admitted her into the hospital for pain control. Claimant presented to the hospital but did not stay for admission because her surgery was not yet authorized. Claimant returned to Dr. Mirkin on October 14, 2005, for her persistent back pain. Dr. Mirkin noted his request for surgery had finally been approved but indicated she was less likely to have a great result due to her being a smoker.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

Claimant presented to Dr. Thomas Lee, another orthopedist, on her own on March 20, 2007, for a second surgical opinion. Dr. Lee diagnosed her with a possible L4-5 nonunion and agreed with Dr. Taylor's conservative treatment recommendation.

Claimant continued experiencing agonizing back pain thereafter and stopped working in March 2007, after subsequent and unrelated hand surgeries.

Due to Claimant's persistent complaints, Employer approved additional treatment with another spine surgeon, Dr. James Coyle, who evaluated her on March 3, 2009. Dr. Coyle's records indicate Claimant had successfully quit smoking five months prior and considered it significant that she had never received even temporary relief post-surgery and had ongoing symptoms of anterior thigh pain bilaterally, as well as low back pain. Dr. Coyle diagnosed her with post-laminectomy syndrome with pseudoarthrosis at L4-5. Dr. Coyle felt the prognosis for revision surgery was very guarded but decided to re-evaluate her after appropriate imaging and neurological testing.

Neurological testing performed by Dr. Daniel Phillips on March 9, 2009, confirmed mild chronic right S1 radiculopathy but was not impressive for active lumbar radiculopathy. Dr. Coyle indicated the need for a high quality lumbar MRI before making any treatment decisions. The MRI taken showed no evidence of disc pathology or protrusion at the L3-4 level. He noted the disc was actually well hydrated and appeared normal, with no evidence of nerve root impingement. As of April 7, 2009, Dr. Coyle did not see any indication for surgery and referred her to Dr. Gregory Smith, a pain management specialist, for epidural steroid injections ("ESIs").

Claimant returned to Dr. Coyle on May 27, 2009, after receiving two ESIs and performing physical therapy, both of which failed to offer any sustained relief. Although Dr. Coyle noted Claimant had multiple risk factors for a positive result from revision surgery, he agreed on February 2, 2010, to perform a reconstruction procedure provided Claimant understand the prognosis. However, due to Claimant's mindset about the exact nature of the procedure, and Dr. Coyle's later reluctance to operate on her, the surgery did not occur. No further medical or surgical treatment has been scheduled to date.

Claimant continues to treat with her primary care physician, Dr. Kirk Brockman, for her chronic back pain. Claimant currently takes Oxycodone, Lyrica, and a muscle relaxer, in addition to thyroid medication. Claimant has received Oxycodone and Fentanyl narcotic medication for years but now remains on Oxycodone only having taken herself off Fentanyl about a year ago. Claimant testified her medications make her drowsy and she sleeps more.

On February 13, 2013, at the request of her attorney, Claimant was evaluated for an independent medical examination ("IME") by Dr. Dwight Woiteshek, a former practicing orthopedic surgeon. Dr. Woiteshek prepared a narrative report and testified at trial by deposition.

Dr. Woiteshek's physical examination of Claimant's lumbar spine found pain and tenderness in the lumbar spine with muscle spasm and guarding. His neurologic examination found no gross motor or sensory deficits. The straight leg raising test was positive on both the right and the left. He found decreased ankle reflexes both on the right and the left, which he

WV-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

indicated was very significant. He also noted significant loss of range of motion of the lumbar spine including flexion and extension.

Dr. Woiteshek opined Claimant sustained traumatic central disc protrusions at both L4-5 and L5-S1 which was confirmed by the May 31, 2005 MRI scan and for which Dr. Mirkin performed surgery. Dr. Woiteshek testified Claimant sustained a subsequent post-operative nonunion at L4-5 for which she treated without surgery. Dr. Woiteshek testified Claimant had pre-existing degenerative disc disease at both L4-5 and L5-S1 prior to the primary injury but was relatively asymptomatic. Dr. Woiteshek testified the pre-existing back condition was neither a hindrance nor obstacle to Claimant's employment prior to the May 2005 serious injury.

Dr. Woiteshek found Claimant to be at MMI and rated her with 50% permanent partial disability of the body as a whole referable to the lumbar spine from the May 5, 2005 injury. He testified she was permanently and totally disabled as a result of the combination of her primary injury and her subsequent June 6, 2006 work injury.

Claimant was sent to vocational expert James Israel on April 24, 2013, to assess her ability to compete in the open labor market. Mr. Israel testified Claimant cannot compete in the open labor market due to the combined circumstances of and limitations from her 2005 and subsequent 2006 work injuries.

Gary Weimholt, a vocational rehabilitation consultant, reviewed Claimant's records and testified on behalf of the SIF. Mr. Weimholt opined Claimant's injuries to her back from 2005 and to her hands in 2006 would not prevent her from working in the open labor market.

CONCLUSIONS OF LAW

Liability of Employer/Insurer for permanent partial or permanent total disability benefits

Claimant seeks an Award of permanent partial or permanent total disability against the Employer. She relies on the opinions of Dr. Woiteshek and James Israel.

Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. *Sanders v. St. Clair Corp.*, 943 S.W.2d 12, 16 (Mo.App. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." *Tiller v. 166 Auto Auction*, 941 S.W.2d 863, 865 (Mo.App. 1997).

The test for permanent and total disability is whether the person is able to compete in the open labor market, and the key question to be answered is, whether an employer, in the usual course of business, would reasonably be expected to employ the person in his present physical condition. *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 411 (Mo. App. 2011). An injured employee is not required to be completely inactive or inert in order to be totally disabled. *Brown v. Treasurer of Mo.*, 795 S.W.2d 479, 483 (Mo.App. 1990).

Claimant has offered no evidence she is permanently and totally disabled as a result of the primary 2005 work injury alone. Her experts have testified to the contrary and the SIF's

W.C-32-81 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

expert, Mr. Weimholt, opines she is not permanently and totally disabled at all. I find Claimant is not permanently and totally disabled as a result of the 2005 work injury.

However, the parties stipulate Claimant sustained a work-related injury, which the evidence bears out in great detail. Dr. Woiteshek testified Claimant sustained a 50% permanent partial disability of the body as a whole referable to the lumbar spine from the May 5, 2005 injury.

Claimant describes her typical day beginning with an inability to sleep comfortably the night before and that back pain will awaken her after two hours of sleep, although she will stay in bed for between six to eight hours while getting up at intervals during that time. When she arises in the morning she takes her medications, which take up to three hours to take effect.

Claimant performs only minimal activities during the day such as watching television and reading. She is required to lie down or recline once or twice during the day to alleviate back pain. Claimant spends most of her day in a recliner with her feet up or on a couch with her legs up on the couch to take pressure off her ailing back. Claimant is however still able to drive an automobile and she testifies she can drive for approximately one hour at a time, at which time she must stop, exit the vehicle, and walk around.

The medical evidence supports Claimant's testimony. Based on the competent and substantial evidence, including Claimant's testimony, medical records, and medical expert opinions of the experts, I find Claimant sustained 35% PPD of the BAW to the lumbar spine as a result of the primary work injury.

Liability of SIF for permanent partial or permanent total disability benefits

Section 287.220 creates the Second Injury Fund and imposes liability on the Fund in certain cases of permanent disability where there is a preexisting disability. §287.220; Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App. E.D. 2000). If the claimant's last injury alone does not render him permanently totally disabled ("PTD"), then, to obtain compensation from the Fund, the claimant must show that he suffers from a preexisting PPD of such seriousness as to constitute a hindrance or obstacle to employment. §287.220.2; Patterson v. Central Freight Lines, 452 S.W.3d 759, 764-65 (Mo. Ct. App. 2015). Claimant has not presented any evidence of her preexisting permanent partial disabilities which constituted a hindrance or obstacle to employment. Claimant in her own proposed Award notes no significant evidence of preexisting permanent partial disabilities exist prior to the primary work injury. The Court finds the SIF is not liable for any permanent partial or total disability.

Need for future medical treatment

Claimant seeks an Award of future medical treatment. Section 287.140.1 RSMo provides for an award of future medical care where the employee can prove that there is a reasonable probability of a need for future medical care that flows from the work injury. Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-54 (Mo. App. 2008). No medical expert has testified Claimant is in need of treatment to cure or relieve her from the effects of the primary injury. In addition, her own expert, Dr. Woiteshek, placed her at MMI when he examined her on February 20, 2013. The Court finds Claimant has received all medical treatment necessary to cure and

WC-32-R1 (6-91)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 05-061902

relieve her from the effects of the primary back injury, and Employer is not liable for any future medical treatment.

Claimant argues in her proposed award the Court should find June 6, 2006, as the date of her MMI. She argues Dr. Mirkin's finding of MMI on June 6, 2006, should be accepted, asserting, "Dr. Coyle's failed attempt at revision surgery in 2010 provided no change to the level of disability and no change to the date of maximum medical improvement, because no treatment was performed."

Employer argues the date of MMI is May 18, 2010, when Dr. Coyle discharged Claimant from his care. The SIF in its proposed Award argues Employer provided medical treatment up through April 22, 2010, as evidenced by Claimant's Exhibit 13, the Admission Diagnosis and Plan written by Dr. Coyle for St. John's Mercy Medical Center.

Although Dr. Mirkin opined Claimant was at MMI on June 6, 2006, Claimant's chronic back complaints persisted. Employer conceded additional medical treatment was necessary and referred Claimant to Dr. Coyle for additional care beginning March 3, 2009. Claimant continued to receive medical care from Dr. Coyle and others at least through March 9, 2010. In fact, Claimant was about to undergo revision surgery which, for reasons still unclear to this Court, did not occur. The record is devoid of any mention of any other MMI date but for Dr. Woiteshek's of February 13, 2013.

The Court finds Claimant's date of MMI was June 6, 2006.

Claimant has not worked since March 2007 when she was released following her later hand surgeries. Despite the scheduled surgery, she has received only essentially diagnostic and conservative medical treatment to her back which failed to improve her condition. The maximum medical improvement date is accepted as stated by the treating surgeon, Dr. Mirkin. Dr. Coyle's failed attempt at revision surgery in 2010 provided no change to the level of disability and no change to the date of maximum medical improvement, because no treatment was performed. Therefore, I find the totality of credible evidence compels a date of maximum medical improvement at June 6, 2006.

Claimant's disability from the primary injury became permanent on June 6, 2006. Claimant is hereby awarded 35% PPD BAW of the lumbar spine (140 weeks) against Employer at a rate of 354.05 per week for a total of 49,567.00. The Second Injury Fund is not liable for any benefits. The weekly payments shall continue for Claimant's lifetime or until modified by law.

2 The Court has not been provided with a Dr. Coyle narrative report dated or referring to May 18, 2010, from any of the parties. However, the Court notes Claimant continued to be under Dr. Coyle's care after the last medical report of March 9, 2010, as is evidenced by Claimant's scheduled surgery.

3 From Dr. Woiteshek's IME report, it does not appear he reviewed Dr. Coyle's medical records at all. Dr. Coyle's records are mentioned in the list of medical records he lists he examined. However, the narrative portion of his report does not discuss Claimant's treatment with Dr. Coyle at all nor does he testify to having reviewed them.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

This Award is subject to a total attorneys' lien in favor of attorneys Jeffrey Gault and Mark Rudder in the amount of 25% for necessary legal services rendered. Three-fourths of the total attorneys' fees awarded are hereunder in favor of Attorney Jeffrey Gault for necessary legal services rendered to the claimant and one-fourth of the total attorneys' fees awarded are hereunder in favor of the Attorney Mark Rudder for necessary legal services rendered to the claimant. Any past due compensation shall bear interest as provided by law.

I certify that on 12-26-17 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 __________________________

By __________________________

_________________________

Made by: __________________________

Lorne J. Baker

Administrative Law Judge

Division of Workers' Compensation

2/18/17