Cheryl Mincks v. Walmart Associates, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 05-102474**

**Employee:** Cheryl Mincks

**Employer:** Walmart Associates, Inc.

**Insurer:** American Home Assurance Company

**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 October 2, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kevin A. Elmer, issued October 2, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **22nd** day of May 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Cheryl Mincks

Injury No. 05-102474

Dependents: N/A

Employer: Walmart Associates, Inc.

Insurer: American Home Assurance Company c/o Claims Management, Inc.

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: June 11, 2018 (record closed June 25, 2018)

Checked by: KAE

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: No work-related injury identified.
5. State location where accident occurred or occupational disease was contracted: Bolivar, Polk 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? No
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: Employee alleges she was carrying a box down a ladder.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Cervical spine and right shoulder/scapula
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,487.42
17. Value necessary medical aid not furnished by employer/insurer? $\ 0
18. Employee's average weekly wages: $\ 235.62

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

1. Weekly compensation rate: $157.08

1. Method wages computation: Stipulation

**COMPENSATION PAYABLE**

1. Amount of compensation payable: 0

Unpaid medical expenses: 0

0 weeks of temporary total disability (or temporary partial disability): $0

0 weeks of permanent partial disability from Employer / Insurer: $0

0 weeks of disfigurement from Employer / Insurer: None

Permanent total disability benefits from Employer beginning, for Claimant's lifetime $0

**TOTAL: $0**

1. Future requirements awarded: None

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

**Employee:** Cheryl Mincks

**Injury No. 05-102474**

**Dependents:** N/A

**Employer:** Walmart Associates, Inc.

**Insurer:** American Home Assurance Company c/o Claims Management, Inc.

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

**Hearing Date:** June 11, 2018 (record closed June 25, 2018)

**Checked by:** KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 11, 2018, in Springfield, Greene County, Missouri. The record was left open until June 25, 2018, to allow for the proper submission of voluminous medical records by scanning and presentment of a CD marked as Exhibit G, Disks 1 and 2. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about July 16, 2018.

The employee appeared personally and through her attorney Jennifer Newman. The employer and insurer appeared through their attorney, Greg Pearman. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about May 2005, Walmart Associates, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by American Home Assurance Company, c/o Claims Management, Inc.

1. On the alleged injury date of May 2005, Cheryl Mincks was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

1. The above-referenced employment and accident occurred in Polk County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

1. The employee notified the employer of her injury as required by Section 287.420, RSMo.

1. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

(6) At the time of the alleged accident in May 2005 the employee's average weekly wage was 235.62, which is sufficient to allow a compensation rate of 157.08 for temporary total disability compensation, permanent total disability compensation, and permanent partial disability compensation.

(7) Counsel for employee seeks an attorney fee of 25% related to Injury Number 05-102474.

The issues to be resolved by hearing include:

(1) Whether the employee sustained an accident on or about May 2005.

(2) Whether the alleged accident arose out of and in the course of her employment with the employer.

(3) Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed.

(4) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $25,513.24.

(5) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

(6) Whether the employee is entitled to temporary total disability compensation. (The employee seeks payment for 254 weeks of temporary total disability compensation, payable for the period of August 18, 2005, to July 6, 2010, or $39,898.32.)

(7) Whether the employee sustained any permanent disability as a consequence of the alleged accident of May 2005; and, if so, what is the nature and extent of the disability.

(8) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation (or permanent total disability compensation).

(9) The date upon which the claimant reached maximum medical improvement.

EVIDENCE PRESENTED

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of two witnesses - vocational expert, Phil Eldred and husband, Billy Ray Mincks. In addition, the employee offered for admission the following exhibits:

Exhibit 1..............................................................................Medical Records

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

The employer and insurer did not present any witnesses at the hearing of this case. However, the employer and insurer offered for admission the following exhibits:

Exhibit A .................................................................................................... Deposition of Cheryl Mincks

Exhibit B .................................................................................................... Deposition of Dr. Ted Lennard

Exhibit C .................................................................................................... Deposition of Dr. Dale Halfaker

Exhibit D .................................................................................................... Deposition of Benjamin Hughes

Exhibit E .................................................................................................... Certified Records of Carl Blomenkamp

Exhibit F .................................................................................................... Medical Report of Dr. William Donnell

Exhibit G .................................................................................................... Medical Records - Mercy Hospital Springfield

Exhibit H ................................................................................................... Printout of medical bills paid by Walmart

Exhibit I .................................................................................................... Deposition of Dr. Shane Bennoch

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses or offer any additional exhibits at the hearing of this case.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Request for Hearing-Final Award

- Answer of Employer/Insurer to Claim for Compensation

- Answer of Second Injury Fund to Claim for Compensation

- Claim for Compensation

- Employer/Insurer's Application for Protective Order

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION

Testimony of Cheryl Mincks

Ms. Mincks is 57 years old and is married to Billie Mincks. She has two children, a son who is 39 and a son who is 37, which do not live at home. The claimant completed tenth grade before leaving school after becoming pregnant with her first child. She does not have a GED. Her work history prior to her employment with Walmart Associates, Inc., included performing housekeeping duties for people in the area where she lived for 5 or 6 years; working at Pennington Seed where she worked on the production line bagging bird seed; working at a garment factory in Bolivar, Missouri, on a production line which required her to perform sewing duties; employment at a Motel 8 in Bolivar, Missouri, where she was a housekeeper; employment at a Casey's Convenience Store where she was responsible for cooking and cleaning the kitchen; and, employment at Manor Care, a senior citizens home in Springfield, Missouri, where she was responsible for taking care of residents who were either elderly, paralyzed, or going through physical recovery.

The claimant testified that while she was growing up, her dad was verbally abusive to her mother and the family in general. Ms. Mincks testified that she had two brothers to whom her dad was very critical. She stated that she developed some depression because of her home life. As a young adult, she had more significant depression when she found out her father had been unfaithful to her mother which caused her mother a great deal of depression. Claimant started taking medication for depression prior to the work injury in 2005. She took Prozac and 2-3 other kinds of depression medications through the years, prior to 2005. The claimant testified that around the mid 1980s, she was involved in a motor vehicle accident that caused her to suffer a punctured lung, a broken chin and knocked out four of her bottom teeth. Despite being struck in the face, she denied suffering any injuries to her neck.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

The claimant testified that while she was working at Pennington Seed, she developed right elbow pain which she described as tennis elbow. She did receive medical treatment for the right elbow complaints but the symptoms eventually resolved.

Ms. Mincks testified that while she was working at Manor Care, she suffered an injury on November 4, 2002, to her right shoulder and neck. She was seen by Dr. Corsolini who placed her on light-duty work for a short period of time and prescribed muscle relaxers and ice. Eventually she was returned back to full-duty work and stated her symptoms resolved.

Claimant's employment with Walmart Associates, Inc., started at the Walmart Store in Ozark, Missouri, in the early 2000s where she worked for 2-3 years. She then transferred to the Walmart Store in Bolivar, Missouri so she could be closer to her mother and brother in order to assist with taking care of her brother who was very ill. After her transfer she worked as an overnight stocker, stocking groceries, and occasionally worked as a cashier.

Typically Ms. Mincks reported to work sometime around 10:00 or 11:00 PM and worked until approximately 7:00 AM. She was responsible for down-stacking pallets of grocery items and stocking shelves. Claimant had no difficulty performing her job duties at Walmart prior to the work injury in May 2005.

Ms. Mincks alleged she was injured in May 2005, while down-stacking a pallet. She stated they received a pallet that was stacked higher than normal. As a result, she had to use a ladder to reach the boxes at the top of the pallet. While she was carrying a box of vegetable oil down the ladder, the box shifted to the right and caused her to experience a burning sensation up her neck on the right side and in her right clavicle/shoulder area. With the assistance of co-workers she was able to complete the shift. She does not recall the date of the incident.

The claimant testified she reported the injury to a woman supervisor named Kris before she went home. To Ms. Mincks' knowledge no Report of Injury was completed at that time. She was scheduled to be off work for the two days following her alleged accident and she did not think she was significantly injured so she just went home when her shift ended.

On May 26, 2005, Ms. Mincks went to her primary care physician's office, Dr. Kahler, where she was seen by Nurse Practitioner, Melissa. She was prescribed medication by the nurse practitioner. Later that same day she was also seen by chiropractor Carl Blomengkamp. She testified that Dr. Blomengkamp took her off work for a few days. Claimant subsequently requested treatment from Walmart so she was sent to Dr. Donnell on June 3, 2005. She was referred for x-rays and was prescribed pain medication and muscle relaxers, as well as light duty restrictions. After that she returned back to work on a light-duty basis and eventually returned back to full duty, working as a stocker. When she returned back to full-duty work she was able to complete her job duties but used assistance at times and stated she would sometimes switch with a co-worker to a job that involved stocking on an aisle with lighter products.

The claimant testified that as a result of her work injury at Walmart in May 2005, she developed neck pain, right shoulder pain and headaches. Ms. Mincks was seen by Dr. Donnell again on June 15, 2015, and she went to Citizens Memorial Health Care for treatment on July 7, 2005, and to the St. John's emergency room on August 8, 2005. She claims she had been diagnosed with a neck strain. She stated that she was seen by Dr. Mauldin on August 17, 2005. Claimant stated the range of motion testing performed by Dr. Mauldin caused her an increase in pain so she did

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

not report to work that night. As a result she claims she was fired for failing to show up for work the night of August 17, 2005.

Since being terminated from employment claimant states she has never returned back to work for Walmart or for any other employers and she has not been self-employed since August 2005. She testified she never applied for unemployment benefits and she has never applied for other employment or otherwise looked for any other jobs after she last worked at Walmart in August 2005.

Ms. Mincks testified that she was released from treatment by Dr. Mauldin on August 17, 2005. She stated she subsequently sought treatment on her own. However, she never demanded additional treatment from Walmart following her release from treatment by Dr. Mauldin.

During direct examination, the claimant testified about what her life was like after the alleged work injury in May 2005, but before she suffered two strokes beginning in 2010. She testified she remained on pain medication after being released from treatment by Dr. Mauldin. Claimant stated she continued to have pain in her neck and her right scapula and shoulder. She stated she was no longer able to do all of her household chores as easily as before. Eventually she was no longer able to clean her house or do laundry. She testified she could sit or stand for no more than 30 minutes or so at a time and she could sleep only 3-4 hours a night before waking up with pain. Ms. Mincks used to help take care of her husband due to his work-related injuries, but stated that he had to start helping her because his condition improved and her condition worsened. She testified she would rotate between sitting and standing in order to help control her pain. She is no longer able to enjoy her grandkids or participate in her hobbies. Her pain was constant and involved her neck, right shoulder/scapula and migraines. She stated she did apply for Social Security Disability before she suffered the strokes and stated the application was due to her neck pain, migraines, depression and anxiety. She was originally denied benefits but was eventually approved.

The claimant testified that sometime around 2010, she suffered her first stroke. The doctors told her that she suffered a total of three strokes. The strokes have caused her to have difficulty with her concentration and short-term memory. She underwent treatment at OCH hospital that was associated with the strokes.

Ms. Mincks testified that her ongoing pain issues at the time of the hearing on June 11, 2018, included neck pain which is the same or worse than it had been prior to the strokes and pain in her right shoulder/scapula which is the same or worse than it had been prior to the strokes. She will occasionally lie down during the day and stated she did lie down sometimes during the day before the strokes. She is no longer able to participate in her hobbies which include arrowhead hunting, fishing, hiking, etc.

The claimant is taking multiple medications at this time which include Methadone, Oxycodone, a muscle relaxer, blood pressure medication, medication for liver issues and medication for anxiety and depression. She began taking the pain medications and the medications for anxiety and depression after the alleged 2005 injury, but before the strokes. Ms. Mincks admits she took pain medication and medication for anxiety and depression before May 2005.

The claimant's deposition was taken on February 14, 2007, and was admitted into evidence. The claimant testified that subsequent to the alleged work injury in May 2005, she was continuing to

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

do daily chores for her mother and for her husband. She stated her husband had to have a lot of care and she had to help him dress and put his shoes and socks on. She stated she had to help him with meals and other tasks related to his Diabetes. At that time, she did the grocery shopping for the family and helped with meal preparation.

Ms. Mincks testified during her deposition in 2007 that she would like to try working a job that was less intense than her job at Walmart and stated she would like to try a telemarketing job. She indicated she had not tried to find a job of that type, as of the time of her deposition. She testified during trial that she never attempted to return to employment.

At the hearing, Claimant testified that she has been treated for issues related to pancreatitis which included hospitalization. During cross-examination at the final hearing, the claimant stated she was hospitalized for approximately a month associated with the pancreatitis issues and stated she does have ongoing pain complaints associated with the pancreatitis.

The hearing started at 9:30 AM and Ms. Mincks' direct examination concluded when the first break in the proceedings occurred at approximately 10:20 AM. During that time the undersigned noted that claimant did not stand or shift in her seat in a manner that gave the indication of any discomfort. Her physical appearance at the hearing was not consistent with her testimony about her current condition and discomfort.

Testimony of Billy Ray Mincks

The claimant's husband Billy Ray Mincks testified that prior to May 2005 his wife was able to do all of the household chores as needed. However, she now has difficulty performing household chores or does not do them at all. He could not recall whether she was on medication prior to the alleged work injury of May 2005. He claims that as a result of the alleged work injury of May 2005, she injured her neck and right shoulder. Mr. Mincks confirmed Claimant is no longer able to participate in her hobbies and has difficulty spending time with her grandchildren. He stated her condition has not improved since May 2005. Subsequent to the injury in 2005, Claimant started using a CPAP machine at night for breathing difficulties. He stated she did suffer a couple of strokes. Her husband confirmed she has suffered significant issues with pancreatitis for a period of time which included hospitalization for approximately a month.

Testimony of Vocational Expert Phillip Eldred

Vocational expert Phillip Eldred testified on behalf of the claimant concerning his evaluation of the her on October 23, 2014, and the vocational report he issued dated November 25, 2014. Mr. Eldred concluded that based upon his review of the IME report from the claimant's IME physician, Dr. David Volarich, there was no pre-existing impairment which was vocationally disabling such as to constitute a hindrance or obstacle to employment before the work injury in May 2005. He confirmed that at the time of the evaluation, the claimant was having right-sided neck pain, right-sided scapular pain, right shoulder pain, headaches almost daily, and depression. Mr. Eldred testified the claimant has not been employed since approximately August 18, 2005. He stated the claimant has qualified for Social Security Disability benefits. He confirmed she has not looked for additional employment since August 2005.

Mr. Eldred testified the claimant reported to him that she cannot continually stand or walk for longer than approximately 10-20 minutes. He stated she cannot sit for very long without

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

supporting her neck. He claimed he was told that she can sit for less than one hour and stated she has to change positions frequently. The claimant told him that she has to lie down during the day. He reviewed all of the medical expert reports and depositions. Mr. Eldred agreed with Dr. Volarich's opinion that the claimant's vocational restrictions place her at the less than the sedentary work level. While he notes vocational expert Ben Hughes did identify work positions which he believes the claimant can perform, which include information clerk, ticket taker, and telemarketer, he does not believe the claimant can perform those duties. He opined there are not many jobs available in general at sedentary or less than sedentary work levels and that due to the claimant living in the rural area of Bolivar, Missouri, potential employment opportunities are greatly diminished. Furthermore, he stated the claimant's lack of education inhibits her ability to perform certain job duties and to be retrained. As a result, he does not believe she is a candidate who could be retrained through vocational training. Mr. Eldred concluded it is highly unlikely that any reasonable employer in the normal course of business would hire the claimant for competitive, gainful employment and that she is unemployable in the open-labor market. He testified the claimant is permanently and totally disabled as a result of her injury on or about May 2005 in isolation.

During cross-examination, Mr. Eldred testified that he performs vocational evaluations almost exclusively for injured employees related to workers' compensation cases. He is aware that the claimant had right-sided neck pain, right-sided scapular pain and right shoulder pain prior to the work injuries of May 2005. Furthermore, he was aware that she also had a history of prior migraines, depression and anxiety, for which she took medication prior to May 2005. He acknowledged that the claimant suffered two strokes subsequent to her alleged work injury of May 2005, and that she had issues related to other health conditions including pancreatitis and that she is an insulin-dependent diabetic. However, he did not review any of the stroke records and he did not discuss the strokes with the claimant or include information in his report about the strokes because they were subsequent to the work injury of May 2005, thus do not impact his opinion that Claimant was permanently totally disabled prior to the stroke events. He did not discuss vocational training with the claimant because he did not believe she would be a good candidate for vocational training.

During cross-examination, Mr. Eldred agreed that Dr. Volarich and Dr. Jackson both evaluated the claimant subsequent to her strokes and that it appeared they did not review any of the medical records associated with the strokes or discuss the stroke-related issues with the claimant. Mr. Eldred testified the claimant was wearing a neck brace when he evaluated her on October 23, 2014. During the evaluation she also sat holding her head in her hands with her eyes shut part of time during the evaluation. He stated she also fell asleep at times during the evaluation. It is noted in his report that the claimant cannot sit very long without supporting her neck. On cross-examination, he confirmed he did not see any indication the claimant was wearing a neck brace when she underwent an evaluation with Dr. Bennoch, Dr. Volarich, Dr. Lennard, Dr. Halfaker, or Dr. Jackson, or vocational expert Ben Hughes.

The report of November 25, 2014, includes a summary of medical records. He testified he does not know why he left out a summary of the medical records from Dr. Kahler's office dated May 26, 2005, and Dr. Blomenkamp's report of May 26, 2005, wherein there was no indication the claimant suffered a work injury. Eldred acknowledged that when he summarized Dr. Strang's report of August 11, 2008, he failed to mention Dr. Strang diagnosed the claimant with multi-level degenerative disc disease with no evidence of significant foraminal stenosis or herniated

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

discs and that he saw no indication for surgical intervention.

Mr. Eldred noted he summarized the Social Security Administration Correspondence from Jennifer Bates in great detail related to the physical and residual functional capacity assessment which was completed on March 29, 2008. He noted the claimant's exertional limitations according to Social Security were occasional lift and/or carry 20 pounds; frequent lift and/or carry 10 pounds; stand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday; and sit (with normal breaks) for a total of about 6 hours in an 8-hour workday. In his report Mr. Eldred noted that when the claimant last saw Dr. Pak in January 2008, the claimant declined further treatment because she was applying for Medicaid. However, on exam she moved easily and had normal balance and coordination and she had full strength in her her bilateral upper extremities. Eldred noted the conclusion of the Social Security Disability summary completed by Jennifer Bates indicates the claimant has an impairment that would limit her to some extent, but not to the extent alleged and that according to the summary, she should be able to perform tasks within the restrictions outlined in the residual functional capacity assessment and should improve with treatment, per Dr. Pak. It was noted the claimant's allegations were deemed partially credible and that Jennifer Bates gave restrictions defined at the sedentary to light work levels.

Also during cross-examination, Mr. Eldred indicated that when he summarized Dr. Strang's report of February 8, 2010, he included the following "Impression: ongoing problems: neck pain." He agreed that he failed to include a portion of Dr. Strang's report wherein he indicates the claimant had no myelopathy or radiculopathy, and that no surgical intervention was recommended, and that Dr. Strang stated he does not feel the claimant's work-related injury is the prevailing factor in causing the claimant's ongoing complaints and that she clearly had advanced spondylosis in 2005, which is something that would have taken years to develop.

Medical IME and Expert Depositions

Dr. Ted Lennard: IME December 1, 2009

The claimant underwent an IME with Dr. Ted Lennard at the referral of the employer on December 1, 2009. Dr. Lennard noted the claimant's treatment history that pre-dated the alleged work injury of May 2005, and the initial treatment history after the alleged injury in May 2005. He noted she was released from treatment by Dr. Maudlin on August 17, 2005. Dr. Lennard noted that after her release from treatment, she alleged ongoing neck and shoulder complaints and sought medical treatment on her own. He indicated she underwent an MRI on September 23, 2005, which demonstrated broad-based disc-osteophyte complexes at C4-5 through C6-7 with borderline cord decompression at C5-6. He further noted the claimant was seen by Dr. Pak and Dr. Hadi and the claimant was eventually referred to neurosurgeon, Dr. Robert Strang, who evaluated the claimant and did not recommend surgery. The report notes the claimant was involved in prior motor vehicle accident that resulted in a punctured lung, a fractured chin and the loss of four teeth, but that the claimant informed Dr. Lennard that she did not have neck pain as a result of that motor vehicle accident. However, he also noted she had suffered an injury to her neck and right shoulder in November 2002, for which she received treatment at the direction

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

of Dr. Corsolini. Dr. Lennard noted the claimant had undergone an IME with Dr. Bennoch who recommended additional testing.

Following his evaluation of the claimant, Dr. Lennard diagnosed cervical pain with underlying degeneration. Dr. Lennard recommended an MRI of the thoracic spine and an MRI of cervical spine and indicated he would provide a causation opinion following receipt of the MRI's. At the time of Dr. Lennard's evaluation of the claimant, she indicated she was still doing household activities and she rated her pain as a 5/10. During physical examination of the cervical spine, Dr. Lennard noted mild limits in rotation due to the left and right pain with motion. During evaluation of the right upper extremity, Dr. Lennard noted full range of motion with no complaints.

Dr. Ted Lennard IME Addendum: January 1, 2010

Dr. Lennard stated the claimant's work accident in May 2005 was not the prevailing factor in the onset of her ongoing neck pain. He stated his opinion was based upon her initial treatment reports from Dr. Kahler's office dated May 26, 2005, and Dr. Donnell's report dated June 3, 2005, wherein she denied a specific injury and described no work injury.

Dr. Lennard IME Addendum: February 20, 2010

Dr. Lennard noted the cervical and thoracic MRI's of the spine from December 17, 2010, demonstrated spondylosis. He noted Dr. Strang had reviewed the cervical and thoracic MRI's and issued a report dated February 8, 2010, wherein Dr. Strang stated the claimant had advanced spondylosis which is a condition that would take years to develop and that Dr. Strang did not feel her work-related injury was the prevailing factor of her cervical condition and complaints. Dr. Lennard provided a 10% rating related to the non-work-related spondylosis and degenerative disc disease. He assessed no PPD related to the alleged work injury of May 2005. He recommended no work restrictions associated with the claimant's thoracic and cervical spine complaints.

Dr. Ted Lennard Deposition: May 26, 2017

Dr. Lennard testified that the cervical MRI showed degenerative changes identified as broad-based disc-osteophytes at C4-5 through C6-7. He stated the degenerative condition was not acute. He referred the claimant to neurosurgeon Dr. Robert Strang for a follow-up evaluation and testified Dr. Strang found the claimant was not a surgical candidate. The doctor also testified he is aware of the claimant having prior neck and scapular complaints and having received prior medical treatment associated with those complaints as well as prior chiropractic treatment. He noted the claimant had a history of anxiety and depression which pre-existed the work injury of May 2005. Dr. Lennard testified Dr. Strang diagnosed the claimant with advanced spondylosis that would take years to develop and therefore it is his opinion that the claimant's cervical complaints are caused by a degenerative process, rather than an acute injury. He assessed PPD of 10% to the body as a whole for the pre-existing degenerative complaints and he placed no restrictions on the claimant. He testified work was not a substantial contributing factor to her neck and shoulder complaints.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

Dr. David Volarich IME: November 19, 2013

The claimant underwent an IME at the referral of her attorney with Dr. David Volarich on November 19, 2013. Dr. Volarich went through the claimant's history and noted that she had a significant motor vehicle accident in 1993 which caused a fractured chin and the loss of some of her bottom teeth but he noted she denied a neck injury. The doctor stated that on November 4, 2002, the claimant suffered a work injury involving the right side of her neck. She was diagnosed with pain on the right side of her neck by Dr. Corsolini in November 2002, and Dr. Corsolini diagnosed her with a neck and upper back strain and prescribed medication, physical therapy and light-duty work for a short period of time. Dr. Volarich noted the claimant advised him she was stocking heavy objects in May 2005 when she felt a pull on the right side of her neck associated with pain. He stated the claimant received some authorized treatment with the treatment concluding when she saw Dr. Mauldin on August 17, 2005. He noted at that time the claimant was placed at maximum medical improvement by Dr. Mauldin.

Dr. Volarich diagnosed the claimant with right-sided cervical pain with right shoulder girdle radicular syndrome secondary to disc protrusions at C5-6 and C6-7 with associated osteophyte complexes as well as severe right shoulder girdle myofascial pain. He stated it was his opinion the work injury in May 2005, involving a case of vegetable oil, was a substantial contributing factor causing the claimant's injuries and need for medical treatment. He placed the claimant at maximum medical improvement and provided a PPD rating of 30% to the body as a whole associated with the work injury. He assessed 0% pre-existing PPD for the 2002 injury and 0% PPD for any prior lumbar spine injuries. Dr. Volarich recommended future medical treatment including pain medication, evaluation at a pain clinic and possible epidural steroid injections. He placed restrictions on the claimant related to the May 2005 injury which included restrictions associated with bending, twisting, lifting, pushing, pulling, carrying and climbing. He stated she should not carry weight greater than 20 pounds and should limit that task to an occasional basis. The doctor opined she should not handle weight overhead or away from her body, carry weight for long distances or over uneven terrain. He stated she should avoid remaining in a fixed position for more than about 30 minutes at a time, including both sitting and standing. Furthermore, she should change positions frequently to maximize comfort and rest. He stated she should pursue an appropriate stretching, strengthening and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking or swimming.

Dr. David Volarich IME Addendum: June 23, 2015

Dr. Volarich stated the claimant incurred medical treatment in the amount of $30,006.66. He stated the charges were fair, reasonable and customary to cure and relieve the effects of the alleged work injury of May 2005. Dr. Volarich attached a worksheet to his IME report with the associated medical expenses. The medical providers listed on the worksheet include Dr. Corsolini who saw the claimant for an IME on August 20, 2007, at an expense of 850.00. It is noted that 700.00 was paid by workers' compensation. (It should also be noted that the medical bills associated with Dr. Corsolini's IME should not be included in the medical bill worksheet and should be deducted from the total amount of medical bills incurred from treatment related to the alleged injury of May 2005). Additionally, the worksheet indicates the claimant received medical treatment from Springfield Neurological & Spine Institute from August 11, 2008 through February 8, 2010, in the amount of 4,479.41. The billing summary indicates that workers' compensation paid 3,458.53. A review of the bills indicates the total bills of 30,000.66 include 950.00 associated with the IME of Dr. Lennard dated December 1, 2009.

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

which was paid by workers' compensation insurance. (The bill associated with Dr. Lennard's IME should not be included in the summary of medical bills incurred by the claimant for treatment related to the alleged injury of May 2005).

Dr. Volarich stated he reviewed additional medical records and provided an opinion he believes the claimant is permanently totally disabled as a result of the work injury of May 18, 2005, in isolation.

Dr. David Volarich Deposition: April 15, 2016

Dr. Volarich's testimony was consistent with his IME report dated November 19, 2013, and the addendum report dated June 23, 2015. Dr. Volarich testified the claimant advised him she never attempted to return back to work following the work injury of May 2005. He was aware that the report from Dr. Kahler's office dated May 26, 2005, indicates she had been experiencing neck pain for 3 weeks and did not describe a work injury. He testified the claimant was taking Percocet and Xanax as of the appointment with Dr. Kahler but he was not aware of who prescribed the medication. The doctor was aware the claimant was also seeing Dr. Blomenkamp, a chiropractor, and that she saw him on May 26, 2005, which is the same day she was seen in Dr. Kahler's office. He agreed there was no comment in Dr. Blomenkamp's report about the claimant suffering an injury at work. He also testified he was aware that the medical report from Dr. Donnell dated June 3, 2005, indicates there is no history of trauma or injury. Dr. Volarich testified that he is aware the claimant suffered a cerebral vascular accident (a stroke) in 2010 and in 2012. He stated there was no discussion of the stroke in his IME report of November 29, 2013, or his addendum report of June 23, 2015. He testified he did not review the stroke records or take the strokes into consideration when completing his reports. He stated he did not discuss the strokes with the claimant. He was aware of the claimant taking Prozac as far back as 1999 for her pre-existing complaints associated with depression.

Dr. James Jackson IME: July 15, 2014

The claimant underwent a psychological IME with Dr. James Jackson on July 15, 2014. Dr. Jackson indicated the claimant reported to him she was up on a ladder and was trying to get two heavy boxes down and the boxes fell on her and she was immediately aware of neck and shoulder pain on her right side. (The description of the alleged incident is inconsistent with the claimant's testimony and the description in other records). She continued to complain of right-sided neck and shoulder pain that worsened over time. She reported to Dr. Jackson that she had suffered two strokes and that her brain does not work as well after those events. Dr. Jackson noted the claimant had intellectual functioning which was below average and that there was a family history of mental and emotional problems. Dr. Jackson noted the claimant had been placed on anti-depressant medications by her primary care physician on June 27, 1999, which included Prozac. Dr. Jackson stated that when individuals with the personality type of Cheryl Mincks are under psychological distress, they express the symptoms as physical problems. He noted these individuals are known as smiling depressives.

Dr. Jackson's report indicates that on VIP testing, her performance was poor and there was evidence of suppressed responding which suggest deliberately ignoring direct responses which is possibly associated with malingering. Dr. Jackson recommended additional treatment in the form of psychological medications and placed her at maximum medical improvement. He provided permanent psychological disability ratings of 10% associated with pre-existing

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

depression issues, 25% associated with the work-related pain disorder resulting from the May 2005 injury. Dr. Jackson indicated that in addition to 25% psychological disability associated with her pain disorder, the claimant's pain, loss of functional abilities, dependence on healthcare specialist for treatment (primarily medications), is also a source of generalized anxiety and psychologically disabling effects. As a result, he assigned a rating of 10% for anxiety associated with the May 2005 work injury. It is noted Dr. Jackson did not indicate whether the claimant suffered any new psychological disability after 2005, but before his evaluation of the claimant, which would be unrelated to the work injury. Finally, Dr. Jackson stated he believes the claimant is permanently totally disabled as a result of a combination of her physical disabilities and psychological disabilities related to the May 2005 work injury, in isolation. He indicated he did not take into consideration any new post-2005 psychological disability and did not address any psychological disability associated with the two strokes the claimant suffered, her pancreatitis, the need for a CPAP machine, and/or her COPD.

Dr. James Jackson Deposition: July 27, 2015:

Dr. Jackson's testimony on direct exam was consistent with his report of July 15, 2014. However, on cross-examination, Dr. Jackson testified that despite being a psychologist hired to provide a psychological evaluation to assess the status of the claimant's current psychological function and to determine if and how her current psychological functioning is related to her injury and premorbid adjustment, he received no medical records associated with the two strokes the claimant suffered subsequent to the May 2005 work injury or the medical records associated with her multiple hospitalizations related to acute pancreatitis. He testified he is aware the claimant indicated that her mind wanders and she testified that her brain does not work as well as it used to, but he testified he did not take that into consideration as he evaluated her psychological status and assessed her current psychological functioning. He stated the Functional Ability Statement he completed was completed on the date he saw her, on July 15, 2014, which was subsequent to her two strokes and treatment for acute pancreatitis. He testified he did not review her deposition transcript as part of his evaluation of the claimant, in preparation of examining her or completing his report.

Dr. Jackson stated that during the administration of the MMPI-2 which took approximately an hour and 45-minutes to complete, the claimant dozed off at times and that part of the MMPI-2 was read to her. He stated he did read her deposition a few days prior to his deposition. He acknowledged being aware that the claimant suffered migraine headaches as far back as 1986. He stated he is aware the claimant received treatment for her headaches and neck pain as far back as May 2000, and that she was experiencing pain that was radiating from her neck into her right shoulder. He was aware the claimant was on Wellbutrin as far back as 1989 for depression and that she was subsequently prescribed Prozac for depression and anxiety in 1999. He testified he is aware that neurosurgeon Dr. Robert Strang provided an opinion that the claimant's cervical complaints were not associated with an acute work incident, but were degenerative in nature. Dr. Jackson testified that with regard to the Axis III, he quoted and referenced Dr. Bennoch's IME but did not reference the conclusions of Dr. Strang. He testified he typically selects experts that are associated with the counsel who retained him. He states that he assessed 45% psychological disability to the claimant's pain complaints associated with the non-surgical neck injury that she alleges she experienced while employed at Walmart. Dr. Jackson testified the 45% psychological disability he related to the alleged work injury of 2005 took into consideration her psychological condition from 2005 until the date he saw her for the evaluation on July 15, 2014.

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

He testified he associated all of the 45% psychological disability to the alleged work injury of May 2005.

**Dr. Dale Halfaker IME: April 4, 2016**

The claimant was seen for a psychological IME with Dr. Dale Halfaker at the referral of the employer. Dr. Halfaker's report indicates that due to difficulties in completing the testing and the claimant's ability to function during the testing, she was seen on December 9, 2015, December 11, 2015, December 18, 2015, January 13, 2016, January 26, 2016, February 3, 2016 and February 8, 2016. He stated she reported a history of two or three strokes and stated the worst stroke was the first one which affected her short-term memory and caused some left-sided physical weakness. He stated her ability to participate in formal testing was limited to her reduced stamina associated with the strokes. He stated she missed several appointments due to numerous health complaints during the process of evaluating her for the psychological IME.

Dr. Halfaker reviewed a wide variety of records including multiple records which were subsequent to the IME reports from Dr. Lennard and Dr. Bennoch. He noted that on August 12, 2010, the claimant was seen by Dr. Birchum for an evaluation of angina which was causing tightness in her mid-chest with radiation to her jaw and back. The past medical history portion of Dr. Birchum's report noted the claimant was positive for anxiety, depression, headaches, hyperlipidemia, hypertension, spinal stenosis, pneumothorax and COPD. She was diagnosed with probable sleep apnea and it was recommended she work on diet, exercise and smoking cessation. Dr. Halfaker noted the claimant was admitted to Mercy Hospital from December 10 - December 15, 2010, for an evaluation of a stroke. He noted the claimant was once again admitted to Mercy Hospital from December 20 - December 29, 2010, associated with acute pancreatitis. Dr. Halfaker reviewed medical records from Mercy Hospital from September 19 to October 20, 2011, wherein the claimant was hospitalized due to acute pancreatitis. He notes it was reported the patient was writhing about and moaning continuously and that she was unable to void for urinalysis because her pain was too severe. Her chief complaint was abdominal pain. The claimant's discharge diagnosis included acute pancreatitis, acute respiratory failure, obstructive chronic bronchitis with exacerbation, opioid-type dependence, etc.

Dr. Halfaker noted the claimant was admitted to Mercy Hospital from November 18 - November 22, 2011, due to associated abdominal pain. The discharging diagnosis included chronic pancreatitis. He also noted the claimant was once again admitted to Mercy Hospital from December 7 - December 13, 2011, due to abdominal pain related to acute pancreatitis. The claimant was then seen at the Mercy Hospital Emergency Room for abdominal pain on February 11, 2012, February 17 and 18, 2012, July 2, 2012, February 18, 2013, and May 13, 2013. The claimant was once again admitted into Mercy Hospital from May 27 - May 30, 2013, for acute pancreatitis.

Dr. Halfaker reviewed the IME report from Dr. Volarich dated November 19, 2013, and noted there were diagnoses related to the May 2005 injury and diagnoses which pre-existed May 2005. Dr. Halfaker noted Dr. Volarich referenced an additional diagnosis which included "psychiatric disorders". He noted Dr. Volarich did not include a diagnosis referencing acute pancreatitis for which the claimant had been hospitalized multiple times, or for the strokes she had suffered.

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MNKOI 0000811657

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

Dr. Halfaker noted the claimant was seen again at the Mercy Hospital Emergency Room on December 23, 2013. He noted she arrived by ambulance and indicated her abdominal pain was rated as a 10 at its worst and a 7 of the time of admission.

In the Past Medical History part of Dr. Halfaker's report on page 60, he indicated her past history is consistent with pancreatitis, high blood pressure, diabetes and peripheral neuropathy affecting her feet and legs. She reported significant pain in her feet and reported a history of 2-3 strokes. Dr. Halfaker stated the claimant advised him that she does not drive because her physician restricted her from driving due to problems with her vision which resulted from her stroke.

Dr. Halfaker noted that as part of his evaluation of the file, he reviewed all of the medical records. He noted that Dr. Donnell, Dr. Mauldin, Dr. Corsolini, Dr. Lennard, and Dr. Strang appear to indicate the claimant's cervical complaints are of a non-work-related etiology and that Dr. Phillips, an emergency room physician, and Dr. Pak are ambiguous on the question of work-relatedness and that Dr. Bennoch and Dr. Volarich believe the claimant's cervical and shoulder complaints are related to a work incident in May 2005. Dr. Halfaker noted that the medical opinions which state that the claimant is NOT permanently totally disabled, all occurred prior to the claimant's stroke of December 10, 2010, and the treatment for the pancreatitis issues which began on December 20, 2010. He noted that all of the opinions indicating the claimant is permanently totally disabled occurred after the onset of the strokes and pancreatitis. He noted Dr. Jackson did not include information related to the strokes or pancreatitis as part of his evaluation of the claimant when he saw her on July 15, 2014. He additionally noted that Dr. Jackson indicated that his opinions rely upon the physician whose report is obtained by the attorney who hires Dr. Jackson. Dr. Halfaker noted there is an inherent bias associated with Dr. Jackson disregarding or weighting less heavily the opinions of other experts in this case such as Dr. Lennard, Dr. Strang, and Dr. Pak.

Dr. Halfaker stated that at the conclusion of his various evaluations of the claimant, he felt she was permanently totally disabled, but that not all of the disability arose as a result of a work incident in May 2005. He stated that from a neuropsychological standpoint, the claimant's presentation suggests permanent total disability. He stated he believes this is from a combination of all of the factors in this case and not the incident in May 2005, alone. He stated the factors appear to include pre-existing depression and anxiety that were present prior to May 2005 that were likely exacerbated by her pain, impairment, restrictions and disability following the May 2005 incident and that the claimant's permanent total disability from a neuropsychological standpoint would also include her subsequent multiple health problems associated with acute pancreatitis, chronic airway obstruction, Type II Diabetes, hypertension, hyperlipidemia, atherosclerotic disease, CVA's (strokes), obesity and obstructive sleep apnea. Dr. Halfaker assessed permanent psychological disability of 0-5% for the claimant's psychological condition which pre-existed the alleged incident in May 2005. He provided a permanent psychological disability rating of 5% associated with the alleged work injury of May 2005, if it is determined that there is pain, physical limitations, restrictions, and physical disability related to the May 2005 incident. He stated that if it is determined there was not a work-related injury causing pain, physical limitations, restrictions, and disability associated with the alleged injury of May 2005, then the 5% psychological disability would not be work-related. Additionally, he stated that psychological disability associated with the strokes, the acute pancreatitis, chronic airway obstruction, Type II Diabetes, hypertension, hyperlipidemia, atherosclerotic disease, obesity and obstructive sleep apnea would equal 5-10%. Finally, he states he believes the claimant has reached maximum neuropsychological improvement.

Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

Dr. Halfaker testified that this case is complex because he must measure the claimant's psychological disability pre-dating 2005, and the percentage of disability applicable to the alleged work injury in 2005, and separate that from the claimant's subsequent strokes and other health issues including pancreatitis. He testified that if it is determined that the pain and resulting physical disability in this case are work-related, then whatever psychological disability arises in response to the work-related condition, will also be work-related. Dr. Halfaker testified the claimant presented for evaluations with an oxygen tank. He stated the claimant had a low IQ which bordered on the range of mild mental retardation. He stated the claimant probably had a learning disability while growing up which still affects her ability to function. Dr. Halfaker stated the claimant's psychological condition does not result in permanent total disability, in isolation, related to the alleged incident in May 2005. He testified he considers the claimant to be permanently totally disabled but stated it is due to a combination of all of the factors in this case which includes the health conditions pre-existing May 2005, the injuries and complaints associated with the alleged May 2005 incident, and her subsequent non-work-related health conditions which occurred after the alleged May 2005 injury which would include strokes, multiple hospitalizations associated with pancreatitis, use of a CPAP machine, sleep apnea, etc. Dr. Halfaker stated that the pre-existing psychological disability is in the range of 0-5% to the body as a whole. Her alleged work-related psychological disability is 5% to the body as a whole. The claimant's psychological disability for unrelated medical issues subsequent to May 2005, is in the range of 5-10% to the body as a whole. Dr. Halfaker stated he does not believe the claimant needs additional psychological treatment and he placed her at maximum neuropsychological improvement.

The claimant underwent an IME at the referral of her attorney with Dr. Shane Bennoch on January 18, 2006. Dr. Bennoch indicated the claimant had not reached maximum medical improvement. He thought the claimant's pain may have been coming from the thoracic spine so he recommended an MRI of the thoracic spine and repeat cervical spine MRI. In his July 6, 2010, report, he noted the claimant was seen in December 2009, by Dr. Lennard who ordered the thoracic and lumbar spine MRIs and referred the claimant to Dr. Strang who found the claimant was not a surgical candidate. In Dr. Bennoch's supplemental report dated July 6, 2010, he reiterated his opinion that as a result of the alleged work incident at Walmart in May 2005, the claimant suffered a traumatic injury to the lower cervical and upper thoracic spine secondary to lifting a box at work and had persistent neck and upper back pain of uncertain etiology. He stated that after reviewing the updated records from Dr. Pak, Dr. Baker, Dr. Lennard and Dr. Strang, his prior diagnosis remained unchanged. He noted that when the claimant was seen by Physician Assistant Lavon Orrell on March 11, 2010, she rated her pain level at a 4/10. Dr. Bennoch then issued a supplemental report dated August 10, 2010, and stated that based upon his original evaluation of the claimant and his review of all of the additional medical records, he believed the claimant had permanent partial impairment of 25% to the body as a whole for the cervical and upper thoracic spine, secondary to her traumatic injury in May 2005.

Page 18

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

Dr. Bennoch's deposition was completed on January 15, 2008. His testimony was consistent with his initial IME report dated December 28, 2007, wherein he stated the claimant was not at maximum medical improvement and he recommended additional testing which included MRI of the cervical spine and thoracic spine. Dr. Bennoch's supplemental deposition was completed on September 21, 2011. He testified he believes the claimant had reached maximum medical improvement and provided a permanent partial impairment rating of 25% to the body as a whole associated with the alleged work from May 2005. Dr. Bennoch also testified the claimant had incurred medical expenses totaling $30,000.66, and that with payments from workers' compensation and Medicaid, along with appropriate write-offs, the remaining balanced owed was $13,143.24.

The claimant underwent a vocational evaluation with Benjamin Hughes at the referral of the employer on July 14, 2017. Hughes noted the claimant advised him she has to sit for ten minutes and then must get up and move related to her neck and low back complaints. Hughes indicated she still smoked and had breathing difficulties and uses a CPAP machine at night. She advised Hughes that she suffered two strokes which had slowed her down both mentally and physically. Hughes noted the claimant had migraines beginning in 1986 and chiropractic treatment beginning in 1999 and that she began taking medication for anxiety and depression several years prior to the work injury in May 2005. After evaluating the claimant and reviewing the medical records, the IME reports, vocational report from Phillip Eldred and the expert depositions, Hughes concluded he believes the claimant is employable at the sedentary level according to the Dictionary of Occupational Titles (DOT). He stated she could perform work which includes information clerk, ticket taker, and telemarketer, if you consider Dr. Bennoch's restrictions. He stated that regarding Dr. Pak's restrictions, he believes the claimant could perform work in the light level and could perform work that includes housekeeper/office cleaner and cashier as well as the sedentary positions already listed. Hughes stated that taking into consideration the physical restrictions placed upon the claimant by Dr. Volarich, he believes she is capable of work at the sedentary level and would advocate jobs such as information clerk, ticket taker and telemarketer. He stated that if you assume the findings from Dr. Halfaker and Dr. Jackson, then the claimant is unemployable. He noted Dr. Halfaker indicated the claimant was unemployable as a result of a combination of her psychological injuries, her physical injuries, and that permanent total disability would be based upon a combination of her pre-existing injuries, work injuries and subsequent non-work-related injuries and medical conditions.

The deposition of vocational expert Benjamin Hughes was completed on February 1, 2018. His testimony was consistent with his IME report dated July 19, 2017, wherein he stated he believes the claimant is employable based upon the restrictions placed upon the claimant by the IME physicians, but that the claimant would not be employable if the finder of fact relies solely upon the reports of Dr. Halfaker or Dr. Jackson.

Page 19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

At the hearing Employee Cheryl Mincks testified she was injured in May 2005, while performing her regular job duties at the Walmart Store in Bolivar, Missouri. The alleged injury occurred near the beginning of her shift at about 11:30 PM as she was downstacking a pallet that was stacked very high so she had to use a ladder in order to reach the items on top of the pallet. While she was carrying a box of vegetable oil down the ladder to put it in a shopping cart, the box shifted in her arms which caused her to experience a pulling sensation in her neck and pain and a burning sensation in the right side of her neck and right shoulder. With the assistance of co-workers she completed her shift. She testified she spoke with "Kris who worked under Connie" at Walmart that evening and reported the injury before she went home but stated there was no Report of Injury completed at that time. She stated she was scheduled to be off work for a couple of days so she went home when her shift ended.

Following the alleged event, Claimant went to see her personal physician on her own. After she discovered it was a "bigger deal" she returned to her employer to report the injury. She testified she was subsequently sent for some limited authorized treatment until being released to return to work without restrictions by Dr. Mauldin on August 17, 2005.

Dr. Kahler was Ms. Mincks' primary care doctor in May of 2005. The medical records from Dr. Kahler's office dated May 26, 2005, indicate the claimant had been having "neck pain for three weeks" prior to the evaluation (See Exhibit 1, Tab D). The doctor further notes, "no injuries recently" and there was no description of a work-related incident or injury. The medical records from chiropractor Dr. Blomenkamp dated May 26, 2005, do not reference a work injury.

The medical report from Dr. Donnell, dated June 3, 2005, indicates there is "[n]o history of trauma or injury." (See Exhibit 1, Tab B). The nurse's note from June 3, 2005, only notes neck and right shoulder pain caused after stocking shelves. It was only subsequent to the initial evaluations that the claimant began telling healthcare providers that she suffered a specific work-related accident while performing her job duties at Walmart.

This alleged injury occurred in May of 2005 prior to statutory revisions that went into effect in August of that year. Accordingly, the prior wording in RSMo. Section 287.020.2 that is applicable to this matter is: "The word 'accident' as used in this chapter shall, unless a different meaning is clearly indicated by context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, without human fault, and producing objective symptoms of an injury. An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable because work was a triggering or precipitating factor." (RSMo. 287.020.2 (1993)).

Page 20

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

Ms. Mincks was unable to present evidence at the hearing to establish the date her accident occurred. At the time of the hearing counsel for employee confirmed the alleged injury date was to be stated as being May 2005 due to them not being able to establish an exact date of injury.

The claimant was the only testimony presented in support of the position that the event happened while the employee was at work for the employer. There was no report of injury or testimony from co-workers entered into evidence. At a time close to the alleged injury the claimant sought treatment on her own and failed to inform the treating professionals about the injury occurring at work. It is not until after the June 3, 2005, office visit with Dr. Donnell that the claimant first identifies the down-stocking event.

Furthermore, during the hearing Ms. Mincks' behavior and physical appearance were not consistent with her complaints of pain and restrictions. Based on the information set forth above I do not find there is credible and compelling evidence to support a finding of fact that an accident occurred while the claimant was working for the employer. As a result, I find for the Employer/Insurer and the Second Injury Fund in awarding no benefits to the Employee.

The aforementioned finding of no accident is dispositive of all other issues presented for consideration at the time of the hearing.

I certify that on 10-2-18 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:

Kevin A. Elmer

Administrative Law Judge

Division of Workers' Compensation

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