Linda Ford v. Pauwels Transformers

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 06-061036

**Employee:** Linda Ford

**Employer:** Pauwels Transformers (Settled)

**Insurer:** Zenith Insurance Company (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 December 26, 2017. The award and decision of Administrative Law Judge Lorne J. Baker, issued December 26, 2017, 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 **10th** day of October 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**SEPARATE CONCURRING OPINION FILED**

Robert W. Cornejo, Chairman

*Reid K. Forrester, Member*

*Curtis E. Chick, Jr., Member*

**Attest:**

*Secretary*

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.

Robert W. Cornejo, Chairman

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

AWARD

Employee: Linda Ford

Jury No.: 06-061036

Dependents: N/A

Employer: Pauwels Transformers (Settled)

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Additional Party: SIF

Insurer: Zenith Insurance Company (Settled)

Hearing Date: September 20, 2017

Checked by: LJB

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: June 6, 2006

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

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant sustained injury to her left and right wrists due to overuse from her work with Employer.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: left and right wrists

1. Nature and extent of any permanent disability: 17% PPD of the right wrist and 17% PPD of the left wrist with a 10% loading factor

1. Compensation paid to-date for temporary disability: $0

1. Value necessary medical aid paid to date by employer/insurer? $17,020.37

WC-3J-81 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

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

1. Employee's average weekly wages: 512.28

1. Weekly compensation rate: 341.52/$341.52

1. Method wages computation: By agreement

**COMPENSATION PAYABLE**

1. Amount of compensation payable: Previously settled

1. Second Injury Fund liability: The Second Injury Fund is liable for 20.55 weeks (205.45 weeks x 10%), or 7,018.24.

TOTAL: 7,018.24.

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 an attorneys' lien in the amount of 25% of all payments. 75% of the total attorneys' fees awarded are hereunder in favor of Attorney Jeffrey Gault for necessary legal services rendered to the claimant and 25% of the total attorneys' fees awarded are hereunder in favor of the Attorney Mark Rudder for necessary legal services rendered to the claimant.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

Employee: Linda Ford

Dependents: N/A

Employer: Pauwels Transformers

Additional Party: SIF

Insurer: Zenith Insurance Company

Injury No.: 06-061036

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 benefits due Claimant under the Missouri Workers' Compensation Act ("Act"). Attorney Jeffrey Gault represented Claimant. Assistant Attorney General Caroline Bean represented liability of the Second Injury Fund ("SIF"). Claimant and Pauwels Transformers ("Employer") entered into a settlement agreement regarding the primary injury prior to the hearing.

The parties stipulated on or about June 6, 2006, Claimant sustained an occupational injury, arising out of and in the course of employment that resulted in injury to Claimant. The injury occurred in Franklin County, Missouri. The parties stipulated Claimant was an employee of Employer and to the applicable rates of compensation of $341.52 for both total disability benefits and 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 $0 in temporary total disability ("TTD") benefits and paid medical benefits totaling $17,020.37. The parties stipulated maximum medical improvement ("MMI") was reached on April 23, 2007. The only issue for determination is the liability of the SIF.

At the hearing, Claimant testified in person, and offered twenty exhibits, including the depositions of Dr. Dwight Woiteshek and James Israel. 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 prior claim, Injury No. 05-061902.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

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 initially diagnosed with a left lower back strain and mid-back strain, placed on light duty. She continued to follow up at Unity, undergo physical therapy, and take medication. An MRI of the lumbar spine without contrast was performed on May 31, 2005 and 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.

Claimant came under the care of Dr. Peter Mirkin, an orthopedic spine surgeon. 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.

1 This accidental low back injury is the subject of Injury No. 05-061902.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

When she returned on July 15, 2005, Claimant told Dr. Mirkin she could not live with the pain anymore. Dr. Mirkin recommended an anterior/posterior lumbar decompression and fusion² which he performed on October 20, 2005.

On November 30, 2005, Dr. Mirkin returned her back to work light duty. According to Claimant, Employer assigned her office work where she scanned papers into the computer. She worked in the office until January, but not full-time. She testified she then worked eight-hour days but light duty on the floor making wires. This job allowed her to work in a seated position and move around to make herself comfortable. She described taking a wire and putting "insulation on them, crimp connectors on them."

However, Dr. Mirkin 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 at 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 would need 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.

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 confirmed conservative treatment suggestion.

² 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.

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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 that 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.

With regard to the primary injury and the basis of the current claim, Claimant reported on June 6, 2006 that her hands "were hurting and ... weren't working properly." After initial conservative treatment, including therapy, she underwent nerve conduction studies on September 5, 2006, which revealed moderately severe bilateral carpal tunnel syndrome.

Employer referred Claimant to Dr. David Brown, a hand surgeon, who initially examined her on October 16, 2006. Dr. Brown diagnosed Claimant with severe carpal tunnel syndrome that had failed conservative treatment. He opined her job duties at Employer were the prevailing factor in the cause of her condition and recommended bilateral carpal tunnel releases. The hand surgeries were performed on November 3, 2006 and December 15, 2006.

Claimant noticed decreased numbness, tingling, and pain following the surgeries but on January 2, 2007, Dr. Brown noted Claimant exhibited trigger fingers in both hands. On January 23, 2007, steroid injections were administered in the right ring finger. Claimant's left middle finger and left thumb also exhibited triggering, but injections were not performed on the left. Dr. Brown notes on March 6, 2007, that the trigger fingers which occurred following the carpal

3 SIF Exhibit No. II, p. 27.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

tunnel release were the result of the work-related diagnosis of carpal tunnel syndrome and carpal tunnel surgery performed thereon. Dr. Brown provided an evaluation of 5% permanent partial disability at the right and left wrists and opined Claimant could return to work full duty and without any restrictions to her wrists.

Note is made that Claimant settled her primary injury against Employer for a sum equal to 17% PPD of the right wrist and 17% PPD of the left wrist, with a 10% loading factor plus two weeks of disfigurement.4 The sole issue presented in the instant case is liability of the Second Injury Fund.

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 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 and that Claimant sustained a subsequent post-operative nonunion at L4-5. 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 and was neither a hindrance nor obstacle to Claimant's employment prior to the May 2005 injury. Dr. Woiteshek opined Claimant sustained a 50% permanent partial disability of the body as a whole referable to the lumbar spine from the May 5, 2005 injury.

With regard to the 2006 work injury, Dr. Woiteshek opined Claimant's work was the prevailing factor in the cause of the bilateral carpal tunnel syndrome with resulting trigger fingers. Dr. Woiteshek further testified regarding disabilities in Claimant's hands from the carpal tunnel injuries which amounted to 30% of the left wrist and 35% of the right wrist and opined that she was at MMI for both the 2005 back injury and the 2006 hand injuries. Dr. Woiteshek testified she was permanently and totally disabled as a result of the combination of her prior back injury and the primary carpal tunnel injuries.

James Israel, vocational expert, met with Claimant on April 24, 2013, and assessed 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. Mr. Israel testified that the loss of hand strength and dexterity from the carpal tunnel syndrome rendered Claimant unable to compete in the labor market, as it combined with the serious limitations of her back injury. He stated "there's no question" that it is a combination of her 2005 and 2006 injuries, rather than the 2005 back injury alone that causes her to be totally disabled. Mr. Israel administered the Purdue Pegboard test, a test which addresses Claimant's work profile, i.e. packing, wrapping, assembly type occupations involving

4 Claimant's Ex. 18.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

eye-hand coordination and the use of digital dexterity. Mr. Israel stated Claimant was slow and labored in her test and the results show Claimant would not be able to keep pace with other workers.

Mr. Israel testified employers in the usual course of selecting job applicants would avoid hiring an applicant with Claimant's overall profile, in favor of persons who are more work-ready, able and unencumbered by pain. Mr. Israel did not administer any intellectual tests and did not see any sign of a cognitive deficit and cannot speak to any limitations she might have. He admitted no treating doctors said Claimant could not work. Mr. Israel conceded Dr. Mirkin's and Brown's restrictions would allow for sedentary to light work. Mr. Israel testified he had inquired of Claimant regarding her hobbies and travels, and she had indicated that "due to her pain and limitation she was pretty much homebound, depressed and not doing a whole lot with her interests." Mr. Israel was not aware Claimant had traveled to Hawaii on three occasions since 2011.

Gary Weimholt, a vocational rehabilitation consultant and disability management specialist, reviewed Claimant's records and testified on behalf of the SIF. He was not given an opportunity to meet with Claimant, but indicated he was still able to form an opinion on Claimant's employability. 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. He performed a transferability analysis and opined Claimant remained employable in several following jobs including canteen operator, hostess, waitress, security guard, usher, recreation facility attending parking lot, shipping order clerk, industrial order clerk, hotel clerk and sales person. Contrary to Claimant indicating the need to recline twice a day, Mr. Weimholt testified Dr. Woiteshek did not indicate any need for Claimant to lay down, nor did he inquire how long she could bend, stoop, sit, or walk.

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.

Claimant testified her hands continue to trouble her, although they now bother her less than before since she is no longer working. Claimant's hand complaints include a loss of grip strength, loss of motion, numbness, and tingling; and performing activities such as using a power washer at a car wash still produces pain and numbness. Claimant testified she has not actively worked since March 2007 when she was released by Dr. Brown and after a short failed work attempt. Claimant's back condition has prevented her from standing, sitting, walking, and working in any capacity that she was previously able to perform.

Claimant testified her right wrist does not swell "very often at all. Maybe once every three months or so." She also said her left hand very rarely swells up. (The Court notes this is in contrast to her October 16, 2013 deposition testimony at which she stated sometimes her hands swell up for a few minutes.) She does not experience feelings of numbness or tingling in either hand. Her hands do not wake her up at night. Using the power washer at the car wash bothers her hands. She cannot testify to change of grip strength in either hand before having the carpal

5 Claimant's Ex. 20, p.62.

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tunnel surgeries. She cannot think of any activities that she has stopped doing because of problems or issues with her hands "because everything stopped before with the back." She stated further it is hard to say what she can or cannot do with her hands because her back stops her from really doing anything. ${ }^{6}$ She testified if she had not injured her back and just had the problems with her hands, she could have returned to her job. ${ }^{7}$

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. She can only sleep on her side. When she arises in the morning she takes her medications, which take up to three hours to take effect.

Claimant describes performing only minimal activities during the day such as watching television and reading. She indicates she is required to lie down or recline once or twice during the day to alleviate back pain. She can sit for probably an hour without having to stand up. 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. She testified she can drive for approximately one hour at a time, at which time she must stop, exit the vehicle, and walk around. In July of 2017, she drove by herself to Travis Air Force Base near Sacramento, California. The drive took five days each way to complete, and she was able to drive close to 500 miles the first day of the trip. She flew roundtrip to Hawaii to see her son in 2011, 2012, and 2013 and stayed for about a month each time. She also drove to Virginia to live with her son when he moved there in 2014. She admitted to helping her son with her grandchildren there. She drove back from Virginia in 2016 to return to Missouri.

She has no issues or limitations with activities of daily living. She is able to run her own errands and do her laundry. Her sister, who lives with her, does the house cleaning. Claimant testified washing dishes was difficult because "you're standing in the same spot, and even though it just might be for a few minutes, it just puts a lot of pressure and stuff on it," in apparent reference to her back (she testified at her October 16, 2013 deposition she can do the dishes). Claimant has not applied or interviewed for any job since working for Employer. Claimant testified at her deposition that she stopped working for Employer in April 2008 "because of the back injury, I just couldn't do it anymore and stuff." ${ }^{8}$

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. The SIF refutes the claim Claimant is PTD and relies on the vocational opinion of Mr. Weimholt.

[^0]

[^0]: ${ }^{6} SIF Ex. II, p. 63.

{ }^{7} SIF Ex. II, p. 69.

{ }^{8}$ SIF Ex. II, p.

WC-32-R1 (6-81)

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

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).

"In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury." *Blackshear v. Adecco*, 420 S.W.3d 678, 681 (Mo. Ct. App. 2014) (citations omitted). A claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. *Id.* "If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount." *Id.* As mentioned above, Claimant settled her primary injury against Employer for 17% of the right wrist and 17% of the left wrist with a 10% loading factor plus two weeks of disfigurement. I find these figures accurately represent the primary disability. I do not find the primary work injury by itself to be permanently and totally disabling.

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 presented evidence of her preexisting permanent partial disability which constitute a hindrance or obstacle to employment.

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).

None of Claimant's treating physicians have indicated Claimant is PTD for any reason at all. Dr. Mirkin notes only a 25 pound maximum lifting restriction. Claimant's examining physician, Dr. Woiteshek testified Claimant is PTD due to the combination of her May 5, 2005 injury and her June 6, 2006 hand injuries. His basis was his examination of Claimant and his review of the medical records. The Court notes Dr. Woiteshek's review of the medical records ends in 2006 and is incomplete. Regardless of his record review, Dr. Woiteshek offers no further explanation of his opinion and is lacking in credibility regarding Claimant's work ability.

In explaining his vocational basis for concluding Claimant was PTD due to the combination of her 2005 and 2006 work injuries, Mr. Israel stated the following:

"Miss Ford's hands were her greatest asset in production work, putting components together, following diagrams, and what it portended for all future employment makes it

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inevitable that both the loss of her digital dexterity, that is, the use of her unfettered hand use, and the pain together, inextricably together, render her unable to compete in anything that she's not only been trained for but would reasonably adapt to, pain being the overriding factor.9

The Court does not find Mr. Israel credible either in this regard. Mr. Israel's conclusion regarding Claimant's use of her hands is primarily based on the results of the Purdue Pegboard Test. The Court notes the results of this one test are in deep contrast to Claimant's ongoing daily hand activities and the objective medical findings of her treating physician. Perhaps even more telling, Mr. Israel's opinion regarding the use of Claimant's hands is different than that of Claimant herself who testified, as discussed above, if she had not injured her back and just had the problems with her hands she could have returned to her hand intensive job.10

The Court finds the vocational opinion of Gary Weimholt more credible than that of Mr. Israel. Claimant admitted to Mr. Weimholt that her hands would not have prevented her from going back to work, but it was her back injury that was the issue.11 Mr. Weimholt offered a lengthy sampling of job openings that met Dr. Mirkin's work restrictions.

Furthermore, the Court does not find Claimant to be an entirely credible witness either regarding her alleged total disability. Contrary to the numerous indications in Dr. Mirkin's medical records, Claimant testified she was never instructed to quit smoking prior to her back surgery. At her deposition, when asked directly if Dr. Mirkin had her quit smoking prior to her back surgery, she stated "No, he didn't" and that she was "not sure" if he had advised her to.12

Claimant has shown she is able to perform the necessary activities of daily living, has, on multiple occasions, been able to sit at lengthy intervals and use her hands to drive or fly long distances, and is not receiving any ongoing medical treatment to alleviate any of her pain complaints. The Court does not find Claimant to be permanently and totally disabled.

However, I find Claimant has testified as to how her preexisting injury combined with her primary injury to make her job more difficult. In addition, Claimant's complaints of pain are rectified by the medical records provided. Claimant has met the burden imposed by law. Dr. Woiteshek endorsed a finding of a prior disability which constituted a hindrance or obstacle to employment. As noted in its Award regarding Injury No. 05-061902, this Court found Claimant to have sustained 35% PPD of the BAW at the lumbar spine as a result of her preexisting 2005 back injury. It is found that these conditions from the 2005 and 2006 work injuries combine and concur with each other to create a greater overall sum, such that the cumulative effect of Claimant's permanent partial disability is found to be the responsibility of the Second Injury Fund. Claimant has met the burden imposed by law.

9 Claimant's Ex. 20, p. 31.

10 SIF Ex. II, p. 69.

11 SIF Ex. I

12 SIF Ex. II, p. 43.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

I find Claimant established the present compensable injury and her preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. I find the degree of Claimant's overall disability existing at the time of the last injury is equivalent to 226 weeks of disability. The sum of the primary injury/disability (65.45 weeks) and the preexisting disability (140 weeks) is 205.45 weeks. The Second Injury Fund is liable for 20.55 weeks (226 weeks - 205.45 weeks), or $7,018.24.

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 __________________________

Made by:

Lorne J. Baker

Administrative Law Judge

Division of Workers' Compensation

12/15/17