Mary Staab-Bernacki v. Sportsman Supply

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 13-093011

**Employee:** Mary Staab-Bernacki

**Employer:** Sportsman Supply

**Insurer:** Commerce & Industry Ins. Co. c/o AIG Claims, Inc.

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090, RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) nature and extent of employee's permanent partial disability and/or permanent total disability; (2) the liability of the Second Injury Fund; (3) whether the employer failed to provide medical treatment; (4) the proper amount of temporary total disability; and (5) the issue of future medical benefits.

The administrative law judge determined as follows: (1) employee had a 20% permanent partial disability, body as a whole, regarding her back and a 5% permanent partial disability regarding her knee; (2) the Second Injury Fund did not have any liability; (3) employer is not liable for non-work related treatment, such as the MRI and subsequent surgeries; (4) employee is entitled to temporary total disability payments for 27 3/7 weeks; and (5) employee does not require future medical treatment for the primary injury.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in the following issues: (1) the administrative law judge erred in failing to order employer to pay for necessary treatment such as the initial MRI and subsequent surgeries; (2) the administrative law judge should have found permanent total disability; (3) the administrative law judge should have found Second Injury Fund liability; and (4) the administrative law judge should have awarded future medical benefits.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of employer's obligation to pay for the initial MRI. We additionally supplement the administrative law judge's decision with respect to the proper standard applied to this matter.

The administrative law judge stated that employee "failed to show by clear and convincing evidence [that] any of her surgeries were necessary to cure and relieve her work related injuries." Award, p. 20. The standard to prove medically necessary procedures is not the "clear and convincing" standard.

Section 287.808, RSMo, provides the evidentiary burden as follows (emphasis added):

MNKOI 0000714468

Injury No.: 13-093011

Employee: Mary Staab-Bernacki

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The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

Therefore, employee only has to show that more likely than not her medical treatment was "reasonably required after the injury or disability, to cure and relieve employee from the effects of the injury." This is a lower standard than a clear and convincing level of proof.

"For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." *In re O'Brien, 600 S.W.2d 695, 697 (Mo. App. 1980)* (citation omitted).

Therefore, the administrative law judge held employee to a higher standard. In applying the correct standard of proof in this matter pursuant to § 287.808, RSMo, we reach a slightly different conclusion regarding what treatment was "reasonably required after the injury or disability, to cure and relieve employee from the effects of the injury."

The parties do not dispute that the primary injury relates to employee's back and consists of compression fractures at L2 and L4. However, the parties disagree on the treatment reasonably required to cure and relieve the effects of the primary injury. Dr. Benjamin Crane treated employee with physical therapy and pain medications, while Dr. Thomas Lee treated employee with surgery. The primary issue in this matter regards the extent of employer's liability for past medical treatment.

The primary injury occurred on December 3, 2013, when employee used a dolly to move boxes at employer's warehouse. While walking backwards, her feet slipped from underneath her and she fell on the concrete floor. Employee felt her back crack and the dolly hit her right leg. Employee went to the emergency room, where x-rays were taken of her back. The x-rays did not show any fractures.

Six days later, employee still had pain in her lower back and she talked to her primary care doctor, Dr. Justin Hugo. Dr. Hugo recommended an MRI of employee's lumbar spine. Employee informed employer about the MRI request. Instead of providing for an MRI, employer sent employee to Dr. Joseph Homan. Dr. Homan determined that an MRI was not required and that employee could return to work. Employee followed through with Dr. Hugo's recommendation for an MRI and paid $964.30 for an MRI on December 12, 2013. Employer refused to reimburse employee for the costs of the MRI. That initial MRI showed compression fractures at L2 and L4.

Due to the initial MRI results, employer sent employee to Dr. Crane, who on December 20, 2013, took employee off of work in order to allow time for the fractures to heal and ordered pain medication. Dr. Crane ordered a bone density study, which demonstrated osteopenia in the femur. Upon the next visit on January 31, 2014, Dr. Crane encouraged employee to walk as much as possible and to avoid heavy lifting. On March 3, 2014, Dr. Crane added an anti-inflammatory medication and started physical therapy. Dr. Crane did not feel that employee required any surgery. Dr. Crane ordered a repeat MRI, which was performed on April 30, 2014.

Injury No.: 13-093011

Employee: Mary Staab-Bernacki

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Upon review of the April 30, 2014 MRI, on June 9, 2014, Dr. Crane placed employee at maximum medical improvement and placed her work at a medium demand level. Dr. Crane found that employee's compression fractures had healed as of June 9, 2014. Dr. Crane also felt that employee was magnifying her symptoms during the June 9, 2014 visit. Dr. Crane did not recommend any further treatment for the primary injury, other than pain medication and home exercises.

Employee continued to experience back pain after June 9, 2014. Employee's primary care doctor, Dr. Hugo, referred employee to Dr. Lee, an orthopedic surgeon, for treatment. Dr. Lee prescribed lumbar epidural injections and on March 2, 2015, performed L2-3, L3-4, and L4-5 decompressive laminectomy procedures. After employee's symptoms persisted, on July 13, 2015, Dr. Lee performed L1-2, L2-3, and L3-4 lateral lumbar interbody fusions. On July 20, 2015, Dr. Lee performed L1-2, L2-3, and L3-4 posterior spinal fusions.

Regarding employer liability, the administrative law judge did not require employer to pay for the initial MRI that led to the discovery of the primary injury. We find no case on point to address employer's liability in this matter.

Section 287.140, RSMo provides, in relevant part, as follows:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

We find that, as the initial MRI showed the compression fractures at L2 and L4, without the MRI, employer's doctors would not know that any significant injury occurred. Therefore, the MRI was necessary to determine what "medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines" was reasonably required to cure and relieve employee from the effects of the injury. Therefore, pursuant to § 287.140, RSMo, we hold that employer should pay $964.30 for the initial MRI.

However, we agree with the administrative law judge and find the opinions of Dr. Crane, Dr. Donald deGrange, and Dr. Russell Cantrell more persuasive that employee was at maximum medical improvement as of June 9, 2014 and that there was no "medical, surgical, chiropractic, [or] hospital treatment" reasonably required "after the injury or disability, to cure and relieve from the effects of the injury."

Dr. Crane only ordered physical therapy and pain medication in order to cure and relieve the effects of the primary injury; he did not feel that surgical intervention was appropriate. Dr. deGrange also opined on September 24, 2014, prior to Dr. Lee's surgeries, that further medical treatment was not needed regarding the primary injury. Similarly, Dr. Cantrell opined on March 14, 2017, "that the multi-level lumbar fusion was not necessitated by [employee's] work injury, but that the performance of this multi-level lumbar fusion has created greater disability than existed solely on the basis of the compression fractures." Tr., p. 1376

Similarly, Dr. Dwight Woiteshek, hired by employee, opined on January 22, 2014, that the primary injury consisted of the L2 and L4 compression fractures, as well as an injury to employee's knee. Dr. Woiteshek did not recommend any treatment for employee's back; he only recommended treatment for employee's knee. He stated that employee was receiving treatment for her back, but did not specify what treatment that was. The only treatment

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Injury No.: 13-093011

**Employee: Mary Staab-Bernacki**

performed at the time of Dr. Woiteshek's opinion was the physical therapy and medication ordered by Dr. Crane. Employee did not see Dr. Lee until August 19, 2014, almost 7 months after seeing Dr. Woiteshek.

Therefore, we agree with the administrative law judge that the surgeries performed by Dr. Lee were not reasonably required to cure and relieve employee from the effects of the injury. Furthermore, we agree with the administrative law judge regarding the remaining issues in this matter.

**Conclusion**

We modify the award of the administrative law judge as to the issue of employer's liability for the initial MRI. Employee is entitled to, and employer is hereby ordered to pay, past medical expenses in the amount of $964.30 for the initial MRI.

The award and decision of Administrative Law Judge Marvin O. Teer, Jr., issued July 31, 2018 is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 31st day of May 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Corke's, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Impry No.: 13-093011

Employee: Mary Staab-Bernacki

I have reviewed and considered all of the competent and substantial evidence on the whole record. I agree with the findings and the majority that employer is liable for the costs of the initial MRI. 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 decision of the administrative law judge should also be modified to include payment for the medical treatment performed by Dr. Lee, as well as other relief.

I am persuaded by employee's argument that employer should be responsible for paying for the surgeries performed by Dr. Lee because such treatment was reasonably required to cure and relieve employee from the effects of the primary injury. Once a compensable injury is shown (as it was here) an employee seeking an award of past medical expenses must prove that the disputed medical treatments are reasonably required to cure and relieve employee from the effects of the injury. Such medical treatments may also cure and relieve pre-existing conditions. *Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo. App. 2011)*.

In *Tillotson*, an employee tore the meniscus in her right knee while at work. Due to prior degenerative arthritis in that knee, the normal procedure for a torn meniscus would have been inadequate to relieve employee's pain. Therefore, one doctor recommended a total knee replacement to provide employee "with more lasting pain relief." *Tillotson, 347 S.W.3d 511, 514*.

Employer requested a second opinion in *Tillotson*. The second doctor agreed that a total knee replacement would be required under the circumstances, but noted that employee's "pre-existing arthritis [was] the major prevailing factor for the need for this surgery." *Id., at 514 (Emphasis in original)*. Employer refused to pay for the total knee replacement, which employee had the first doctor perform. Employee was disabled from working while recuperating.

The Division in *Tillotson* found that because the primary injury was not the prevailing factor resulting in employee's need for a total knee replacement that employer was not liable to pay for the surgery. The Commission majority affirmed the Division's decision. The court of appeals reversed holding that the Commission used an incorrect standard and stating:

> [I]t is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Rather, once it is determined that there has been a compensable accident, the claimant need only prove that the need for treatment and medication flow from the work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant.

*Id., at 519 (Emphasis added) (citing Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 83 (Mo. App. S.D. 2006)*.

Section 287.140, RSMo, does not include the words "flow from the work injury." However, in essence, the *Tillotson* decision stands for the position that an employer can still be liable for medical treatment that is reasonably required to cure and relieve the effects of a compensable injury, even if such treatment also benefits an unrelated, pre-existing condition. As applied to this matter, employer would be liable for the surgeries Dr. Lee performed if such surgeries were deemed reasonably required to cure and relieve the effects of the primary injury.

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Injury No.: 13-093011

Employee: Mary Staab-Bernacki

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Dr. Lee opined that the primary accident was the prevailing factor in causing the L2 and L4 compression fractures, which fractures resulted in damage to the surrounding discs and the need for the other surgeries. Dr. Lee determined that the best way to cure and relieve the effects of that injury was to perform surgeries that addressed not only the compression fractures from the accident, but also the pre-existing degenerative condition of employee's spine. Dr. David Volarich supported Dr. Lee's opinion that employee's surgical procedures were necessary to cure and relieve the effects of the primary work injury.¹

Because I am persuaded by this argument and the evidence in the record that supports it, I would modify the administrative law judge's award allowing benefits and order employer to pay $402,464.75 for the medical treatment performed by Dr. Lee. I am also persuaded that employee is permanently and totally disabled as a result of the primary injury and entitled to permanent total disability benefits at the rate of $288.01 per week. Employer also should pay temporary total disability benefits from June 14, 2014 through to the date of this decision.

Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

¹ Dr. Volarich also opined that employee did not reach maximum medical improvement until December 7, 2016.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

Employee: Mary Staab-Bernacki

Dependents: N/A

Injury No.: 13-093011

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Employer: Sportsmans Supply

Additional Party: Second Injury Fund

Insurer: Commerce & Industry Ins. Co.c/o AIG Claims, Inc

Hearing Date: April 9, 2018

Checked by: MOT;sh

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: December 3, 2013

1. State location where accident occurred or occupational disease was contracted: St. Louis County

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 fell while pulling a loading dollie

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Low back, and right leg

1. Nature and extent of any permanent disability:

1. Back: 20% Body as a whole (permanent partial disability BAW)

2. Knee: 5%

1. Compensation paid to-date for temporary disability: $7,899.69 (12/4/13-6/13/14, or 27 3/7 weeks)

1. Value necessary medical aid paid to date by employer/insurer? $13,005.23

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

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

1. Employee's average weekly wages: 432.03

1. Weekly compensation rate: 288.01/288.01

1. Method wages computation: Stipulated

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

1. Back: $23,040.80 (20% of 400 weeks = 80 weeks x 288.01)

2. Knee: $2,304.08 (5% of 160 weeks = 8 weeks x 288.01)

1. Second Injury Fund liability: None

**TOTAL: $25,344.88**

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Robert J. Radice.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

Employee: Mary Staab-Bernaki

Dependents: N/A

Employer: Sportsmans Supply

Additional Party: Second Injury Fund

Injury No.: 13-093011

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Commerce & Industry Ins. Co. c/o AIG Claims, Inc.

Hearing Date: April 9, 2018

A hearing in this matter was held on April 9, 2018 before the Division of Worker's Compensation in the St. Louis office. The claimant, Mary Staab-Bernaki ("Claimant") was represented by Attorney Robert J. Radice. The employer, Sportsmans Supply ("Employer") and its insurer, Commerce & Industry Ins. Co. c/o AIG Claims, Inc was represented by Attorney Reid Highlander. The Second Injury Fund was represented by Attorney E. Joye Hudson.

The parties stipulate as follows:

1. On or about December 3, 2013, Mary Staab-Bernacki (Claimant) was an Employee of SSI Acquisition Corp. d/b/a Sportsman's Supply (Employer).

1. On or about December 3, 2013, Claimant sustained an injury by accident while in the course and scope of her employment with Employer.

1. Employer was operating subject to the provisions of Missouri Workers' Compensation law.

1. Employer's liability for workers' compensation was insured by Commerce & Industry Insurance Co. j AIG Claims, Inc.

1. The Missouri Division of Workers' Compensation has jurisdiction and venue in St. Louis County, Missouri. By agreement of the Parties, the Award is being entered in St. Louis, Missouri.

1. Employer had proper notice of Claimant's injury.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

1. Claimant filed a Claim for Compensation against Employer and the Second Injury Fund within the time prescribed by law.
2. Employer and the Second Injury Fund filed an Answer to Claimant's Claim for Compensation within the time prescribed by law.
3. Claimant's average weekly wage is 432.03.
4. Claimant's weekly permanent partial compensation rate is 288.01.
5. Claimant's weekly temporary total disability rate and permanent total compensation rate is $288.01.
6. The Employer/Insurer has paid temporary total disability benefits in the amount of $7,899.69 ending on June 13, 2014.
7. The Employer/Insurer has paid medical benefits in the amount of $13,005.23.
8. The Employer/Insurer has denied any medical treatment for Claimant's back/lumbar spine after June 9, 2014.
9. Claimant has made demand upon the Employer/Insurer to provide treatment for Claimant's back/lumbar spine after June 9, 2014.
10. The Employer/Insurer has denied any medical treatment for Claimant's right knee.
11. Claimant has made demand upon the Employer/Insurer for treatment of Claimant's right knee.

**EXHIBITS**

Claimant offered the following exhibits which were admitted into evidence without objection from the Fund:

Exhibit 1 Vocational Report from Delores Gonzalez;

Exhibit 2 Medical records of Dr. Thomas Lee;

Exhibit 3 Reports of Dr. David Volarich;

Exhibit 4 December 9, 2013 treatment record of Dr. Justin Hugo;

Exhibit 5 May 9, 2014 treatment note of Nurse Practitioner Joy Bittle;

Exhibit 6 December 20, 2013 report of Dr. Crane;

Exhibit 7 April 30, 2014 report of Dr. Crane;

Exhibit 8 January 31, 2014 bone density scan from St. Clare Health Center;

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The Employer/Insurer offered the following exhibits in defense of the claim:

Second Injury Fund Exhibits:

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

None

Note: Unless otherwise specifically noted below, any objections contained in the deposition exhibits, but not ruled on in this award, are overruled and the testimony is fully admitted into evidence in this case. Any notations made on the exhibits were not placed there by the undersigned Administrative Law Judge.

Claimant, Mary Staab-Bernacki, age 61, testified she was born on September 27, 1956 and is currently divorced from her husband. She has one son, Ryan. She indicated she quit school as a High School Junior, but later obtained her GED. Additionally, she obtained a Certificate in Clerical Sciences from Jefferson College.

Claimant described her work history as involving employment with Sportsman Supply from September 2013 through December 2013. Her duties required her to unload trucks, move skids with various methods including mechanical devices and lifting by hand. Claimant testified she previously worked at Advanced Psychiatric Services on a part-time basis from May 2013 through September 2013, performing essentially clerical work. Claimant worked at World Omni Financial on a full-time basis at a "desk job" from May 2008 through April 2013. Claimant worked at the Hillsboro Courthouse from October 1, 2007 through October 31, 2007 and at Disability Resources from August 2006 through August 2007 as a file clerk. Claimant worked for the Division of Family Services in Hillsboro, Missouri as a clerk typist-receptionist from 1993 through 2006. Claimant described her past duties as essentially clerical in nature. The Court did not find Claimant's testimony credible.

Claimant testified she was involved in a motor vehicle in 1993 fracturing her pelvis and puncturing her lung. Claimant thought she was out of work eight to ten weeks following that injury. Claimant testified she suffered from hypothyroidism since the early 80's. Claimant underwent a thyroidectomy in 2009. Claimant continued to take medication including Levothyronin for that condition. Claimant indicated she injured her left shoulder in 2012, which required surgery.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

to repair that condition. Claimant indicated she was diagnosed with hypoglycemia in 2009 and has to maintain a particular diet and take medication for that condition. Claimant indicated she was diagnosed with depression and takes multiple medications including Cymbalta for that condition. Claimant described undergoing a weight-loss surgery consisting of a gastric bypass, which unfortunately resulted in complications requiring a second surgery to address. Claimant indicated she has suffered from tremors since her early teen years. She received treatment for a number of years and continues to take medication, including Primadone for that condition. Claimant underwent a gallbladder surgery in 1988 and continues to take a water pill for water retention. Claimant suffers from Restless Leg Syndrome which affects her ability to sleep. Claimant was diagnosed with degenerative arthritic changes in her right knee in 2008 and her lumbar spine in 2010.

SUBSEQUENT MEDICAL CONDITIONS

Claimant described being involved in a motor vehicle accident in May of 2016, resulting in complaints to her neck, head and low back.

PRIOR BACK CONDITION

Claimant describes suffering from stiffness in her back after sitting. She indicated she treated with Dr. Henselmeier for prior back complaints. She was apparently advised to exercise and attempted to do so walking up to three miles per day. Claimant denied significant back complaints leading up to the work injury.

PRIOR RIGHT KNEE INJURY

Claimant did not recall a prior right knee condition. Nevertheless, leading up to the work injury, she denied ongoing complaints in the right knee.

WORK INJURY

Claimant alleges injury on December 3, 2013. Claimant described working in the warehouse at the receiving desk when a truck came in to be unloaded. Claimant indicated she took a skid to the truck and the driver placed the boxes from the truck onto the skid. Claimant then retrieved a dolly cart to move the skid because she could not immediately locate a skid jack. While

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

pulling the dolly, claimant described falling backwards from standing height. She alleges the dolly struck her right knee. Claimant does not believe there were any witnesses to the alleged injury. Claimant described calling for help and eventually being taken to St. Anthony's Hospital by ambulance. Claimant described feeling complaints of pain in her back and right leg. Claimant believes the initial exam revealed some bruising on the leg, but no significant abnormalities in her leg or back. Claimant was released from St. Anthony's. She followed up with her own physician, Dr. Hugo, who thought she might require an MRI. The Employer/Insurer sent claimant to Dr. Homan who evaluated her back and thought she would be able to return to work. Claimant believes she returned to work on or about December 12, 2013, but only worked a half day as she was set to have the MRI that afternoon.

Claimant admitted she saw Dr. Hugo on her own, and it was he who requested the MRI without authority from the Employer/Insurer. When claimant requested additional treatment for her back, the Employer/Insurer sent her for treatment with Dr. Benjamin Crane. Dr. Crane treated her from December 20, 2013 through June 9, 2014. Claimant advised Dr. Crane thought she had osteoporosis and sent her for bone density testing. Dr. Crane also did a repeat MRI of the lumbar spine. Claimant thought she was diagnosed with fractures in her spine for which Dr. Crane provided conservative medical treatment placing her at maximum medical improvement on or about June 9, 2014, at which time she was released to return to work. Claimant described ongoing back complaints and a desire to seek additional medical treatment.

During her treatment with Dr. Crane, claimant was sent for evaluation by Dr. Krause due to right knee complaints. Dr. Krause reviewed the medical history and diagnosed claimant with Degenerative Joint Disease in the right knee which pre-existed the work injury. Dr. Krause placed claimant at maximum medical improvement as of the date of the injury, as he did not believe there was any objective condition attributable to the alleged work injury. Later an MRI of the right knee was obtained by claimant and was dated July 25, 2014. A copy of the MRI images were sent to Dr. Krause for further comment. Dr. Krause indicated in his October 1, 2014 report the MRI confirmed claimant has significant degenerative changes in her knee, including the "classic signs of maceration and extrusion" of her meniscus. He stated "it is not an acute medial meniscus tear." Dr. Krause thought the MRI confirmed his previously stated opinion regarding the condition of claimant's knee. Dr. Krause did not believe any further treatment was needed for the knee and

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

advised additional treatment was not likely to result in significant improvement due to the amount of arthritis in the knee. (See Exhibit E)

Claimant continued to receive treatment through her primary care physician, Dr. Hugo between June 2014 and August 2014. Claimant then pursued treatment from Dr. Thomas Lee in August of 2014. Dr. Lee initially recommended injections and eventually performed a lumbar spine laminectomy on March 2, 2015. That surgery failed. Claimant underwent a staged fusion procedure on July 13th and July 20th of 2015. However, claimant's condition did not appear to improve. She reported seeing Dr. Lee in December 2016 and having the same type of complaints she had since the beginning of his treatment.

PRE-EXISTING MEDICAL RECORDS

EXHIBITS F & G

The pre-existing medical records reveal claimant was seen by Dr. Justin Hugo at the Fenton Family Medicine facility on December 30, 2008 complaining of pain and swelling in her right knee. X-rays of the knee were taken at that time and revealed arthritic changes in the knee. Claimant was seen again on January 2, 2009 with a knot underneath her knee cap and pain complaints such that she was using a crutch to walk and could not bear weight on her right knee for any length of time. Claimant was seen on February 2, 2009 for tremors and possible seizures. Claimant reported shaking all over and suffering from a frontal headache. Claimant returned on February 11, 2009 with ongoing tremors and headaches in addition to dizziness and gait abnormality. Specifically, it was noted claimant was needing to walk with a cane. Claimant was described as having memory loss and sleep problems at that time.

Claimant reported to the St. Louis Health and Wellness Center for treatment with Dr. Henselmeier on May 12, 2010 and was noted to have back complaints. Claimant returned on August 5, 2010 with complaints of back pain. It was noted she was not only experiencing back pain, but sacroiliac pain on the left side. Claimant underwent x-rays on August 14, 2010 at the Watson Imaging Center, which were interpreted to reveal osteoarthritis in the lumbar spine and abnormalities between the L5 and the sacrum in her sacroiliac joint. Dr. Henselmeier noted in his August 18, 2010 report that x-rays of the lumbar spine and sacroiliac joints revealed degenerative

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

joint disease. Claimant was referred for steroid injections. Claimant saw Dr. Henselmeier on December 22, 2010 with severe headaches.

On July 6, 2011, Dr. Henselmeier saw claimant following an episode where she lost consciousness at church. He noted claimant had a stressful job and had battled depression for years. The physician felt claimant may be suffering from anxiety related symptoms. On August 11, 2011, claimant was complaining of headaches and weakness and was noted to be seeing an endocrinologist for her problems.

The January 11, 2012 report from Dr. Henselmeier notes claimant had to pull over while driving her car due to her Hypothyroidism and Hypertension. On July 10, 2010, Dr. Henselmeier's records reveal claimant presented with left shoulder problems after moving her mother's furniture. A July 24, 2012 report of Dr. Henselmeier notes claimant underwent an MRI for her shoulder which was interpreted to reveal a full thickness tear of the supraspinatus tendon. The March 12, 2013 report from Dr. Henselmeier indicates claimant underwent surgery for her shoulder in October of 2012, which kept her off work until January 2013. The March 26, 2013 report of Dr. Henselmeier notes claimant complained of severe bilateral ear problems, including ringing in her ears and an additional episode of Syncope. Apparently, claimant passed out in a restroom. It is clear claimant had multiple problems affecting her ability to function prior to the work injury.

MEDICAL RECORDS

Claimant alleged she fell at work on December 3, 2013. She was taken by the Fenton Fire Protection District to St. Anthony's Hospital on December 3, 2013. At St. Anthony's, claimant presented with reports of lumbar spine pain. She also reported pain in her right shoulder. She denied pain in her hips or lower extremities. X-rays were taken and interpreted to reveal multilevel spondylosis of the lumbar spine, but no acute osseous abnormality. X-rays were also taken of the right shoulder and interpreted to be normal. Claimant's diagnosis was lumbar strain and right shoulder strain. Claimant was discharged to return to work on December 4, 2013. It was suggested claimant follow up with Dr. Justin Hugo her primary care physician in one week. (Exhibit 20)

Claimant saw Nurse Practitioner Joy Bittle on December 9, 2013 to obtain an off work slip, which excused claimant from working from December 4, 2013 through December 13, 2013.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

Claimant reported to the Lemay Urgent Care Center on December 10, 2013 and was having complaints of left hip pain. Claimant advised the Urgent Care physician she was involved in a motor vehicle accident in 1993 and broke her left hip. Upon examination, there was noted to be bruising in her right lower leg. X-rays of the hip revealed healed fractures from her prior injury. Dr. Joseph Homan noted claimant reported to him she had been back to work following this injury, but continued to have complaints. He also noted claimant advised him she never had any prior back complaints which he felt was questionable given the significant arthritis noted. Claimant was provided with work restrictions and advised to follow up with Dr. Crane. Claimant underwent an MRI of the lumbar spine at Metro Imaging on December 12, 2013, which was interpreted to reveal compression fractures at L2 and L4 as well as spinal stenosis in the lumbar spine.

Claimant saw Dr. Benjamin Crane on December 20, 2013 (Exhibit B) and reported low back pain. The doctor indicated she did not have any real radicular type symptoms. Dr. Crane reviewed the MRI and x-rays scans and indicated he felt claimant was suffering from osteoporosis. He recommended a bone density test. Dr. Crane followed up on January 10, 2014 and noted claimant was suffering from compression fractures that are secondary to osteoporosis. He described claimant's condition as pathologic compression fractures and continued her on work restrictions. He evaluated her again on January 31, 2014 for essentially the same complaints without significant improvement. He explained he did not interpret her to be exhibiting any real type radicular symptoms. He reported claimant reported pain in her right knee, which he was not treating. It does not appear these complaints were noted previously in his records. A bone density study was obtained from St. Clare Health Center on January 31, 2014 and revealed scores interpreted to be within the range of average in the lumbar spine, but inflated in the femur suggestive of osteoporosis. (Of note, claimant's own physician, Dr. Lee indicated in his deposition that the score on the femur would be more accurate and he would utilize that score Deposition Page 52).

Dr. Dwight Woiteshek (Exhibit 9) performed an IME on behalf of Claimant on February 14, 2014. Dr. Woiteshek alleged Claimant experienced pain in her back following a fall. He also alleged Claimant twisted her right knee. This history was not previously noted in the records. Dr. Woiteshek diagnosed Claimant with traumatic internal derangement of the right knee and traumatic acute osteopenic compression fractures of L2 and L4. Dr. Woiteshek recommended additional treatment for the knee and spine. Claimant saw Dr. Benjamin Crane on March 3, 2014

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

who recommended physical therapy and ongoing medication. He placed light duty work restrictions on claimant and suggested she follow up. Claimant followed up three weeks later on March 24, 2014 with significant complaints of pain which she did not believe was improving through physical therapy. Dr. Crane suggested an additional MRI of the lumbar spine to determine whether the fractures healed. (Exhibit B) Claimant was continued on work restrictions.

Claimant then saw Dr. Krause on March 31, 2014 (Exhibit E) due to her complaints in the right knee. He noted claimant did not have any complaints in the right knee until January 31, 2014. He did not believe claimant's knee condition was related to the alleged work injury. He thought claimant was suffering from pre-existing degenerative findings in the knee, including arthritis and a degenerative tear in the meniscus. He did not believe claimant would benefit from additional treatment on the knee.

Claimant saw Dr. Crane again on April 30, 2014 after the completion of an additional MRI of the lumbar spine. Dr. Crane interpreted the MRI to reveal healed compression fractures at L2 and L4. Dr. Crane thought claimant should undergo a course of work hardening followed by a FCE. (Exhibit B) The MRI scan performed on or about April 30, 2014 was interpreted by the technician to reveal healed compression deformity at L2 and healed Schmorl's node herniations at L2 and L4 with annular disc bulges and severe canal stenosis at L2-3, moderate stenosis at L3-4 and mild stenosis at L4-5. In addition to a central canal stenosis, the technician felt the MRI revealed severe right L2-3 and severe left L3-4 and severe bilateral L4-5 foraminal stenosis.

Claimant underwent work hardening evaluation at the Work Center on May 6, 2014. Claimant was noted to provide a self-limited or guarded effort during the work hardening evaluation. Claimant described increasing subjective complaints during functional tests. It was felt claimant's potential for improvement was poor to fair. Claimant continued through nine half-day work conditioning sessions from May 6, 2014 through May 28, 2014. Claimant then underwent a Functional Capacity Evaluation on May 30, 2014, which was also noted to be limited due to guarding and subjective complaints. It was noted claimant handled loads within the light physical demand category, which would be consistent with an ability to perform sedentary to light work tasks. There was suggestion of position Waddell's signs for symptom magnification.

Claimant returned to Dr. Benjamin Crane on June 9, 2014. Claimant described pain in her low back and occasional pain in her left buttocks. The doctor reviewed the FCE and noted

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

claimant's self-limiting behavior and inconsistency in her efforts, as well positive Waddell's signs. Dr. Crane thought claimant had reached maximum medical improvement and could return to a light demand level of work. He also felt that if claimant symptom magnification were taken into account she could probably perform work in a medium level of exertion. Claimant was placed at maximum medical improvement to return to work in a medium category. (Exhibit B)

Claimant continued with medical treatment on her own. She reported to St. Anthony's Medical Center on July 25, 2014 to obtain an MRI (Exhibit 16) of the right knee. The MRI was interpreted to reveal tricompartmental degenerative changes, a complex tear of the mid-portion of the medical meniscus associated with advanced degenerative changes and joint effusion. Claimant reported for evaluation with Dr. Lee on August 19, 2014 due to ongoing back complaints. (Exhibit 2) The records suggest claimant was referred to that facility by her primary care physician, Dr. Hugo. Claimant's main complaint was listed as back pain. Dr. Lee interpreted her diagnostic tests as revealing compression fractures at L2 and L4. He also felt claimant had disc bulges with bilateral facet arthropathy and central canal stenosis, as well as bilateral foraminal stenosis in the lumbar spine. He recommended epidural steroid injections. Claimant underwent an injection with Dr. Zippa on August 26, 2014. Claimant followed up on September 9, 2014 and received a second injection despite denying any real significant relief from the first injection. The diagnosis was listed as L3-4 stenosis.

Claimant obtained treatment from Dr. David Fagan for her right knee and was noted to be suffering from degenerative changes. A cortisone injection was provided. Claimant then saw Dr. Donald deGrange for an IME on September 24, 2014. Dr. deGrange diagnosed claimant with L2 and L4 compression fractures as well as multiple-level degenerative disc diseases and stenosis in the lumbar spine. Dr. deGrange agreed with Dr. Crane's assessment of maximum medical improvement and provided a rating of 10% of the body as a whole.

Claimant returned to Dr. Thomas Lee on October 14, 2014, who indicated it was his understanding Dr. Fagan was recommending a right total knee replacement due to degenerative conditions. With regard to the lumbar spine, Dr. Lee diagnosed an L2-3 disc protrusion with retrolisthesis, and L4-5 spondylolisthesis. He recommended an MRI to rule out an ongoing or recurrent fracture. He suggested claimant be weaned off of Hydrocodone. An MRI was performed on October 22, 2014 at the South County Open MRI. Claimant was noted to have chronic superior

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Issued by DIVISION OF WORKERS' COMPENSATION

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endplate compression deformities with accompanying degenerative Schmorl's node. Claimant was noted to have multi-level facet arthropathy and central canal stenosis as well as multi-level foraminal stenosis. X-rays were obtained on November 4, 2014 from St. Anthony's Medical Center and revealed osteoarthritic changes in claimant's bilateral hands. Claimant was also noted to have an old fracture of the pelvis with degenerative changes at L5.

Claimant returned for a refill of medications on November 11, 2014. As of November 18, 2014, Dr. Lee diagnosed an L2-3 protrusion with spinal stenosis. He suspected an L2-3 laminectomy may be needed. Claimant then began some treatment for pneumonia. Claimant saw Dr. Hugo on December 30, 2014 and was noted to have osteoarthritis. He suggested seeing additional physician, Dr. Ince to evaluate her arthritic condition. Claimant was also seen at St. Anthony's Medical Center on December 30, 2014 for a scoliosis series. That testing was interpreted to reveal scoliosis, degenerative changes and osteopenia. Claimant continued to obtain pain medication from Dr. Lee's office through her next visit on February 16, 2015. A review of her MRI was interpreted to reveal spinal stenosis from L2-L5. Claimant was also noted to have an abnormal spinal alignment. A decompressive laminectomy was recommended. Claimant was also noted to be complaining of bilateral hand complaints, including numbness in her fingertips which has begun recently. Those complaints were not attributed to the work injury.

Claimant followed up with the Nurse Practitioner on February 23, 2015 for hand complaints and was thought to have Sclerosis-Keinbock's Disease. Claimant saw Dr. Thomas Lee again on February 24, 2015 for what he described as a new problem in her right wrist. He indicated claimant had a known history of arthritis. Claimant advised Dr. Lee she wanted to proceed with the L2 to L5 laminectomy. Dr. Lee noted in his March 2, 2015 records claimant had evidence of L2-L5 stenosis. He performed laminectomies from L2 to L5 for that diagnosis. The degenerative diagnosis of stenosis formed the basis of the reason for surgery. (Exhibit 2)

The March 3, 2015 report from St. Anthony's Medical Center (Exhibit 20) by Dr. Kasireddy noted a past history of Hypertension, Osteoporosis, and severe Degenerative Joint Disease, Hypothyroidism, Depression, Chronic Lower Extremity Edema and severe lumbar stenosis with L2-L4 compression fractures. Claimant was noted to have electively undergone a lumbar laminectomy. The March 5, 2015 discharge summary notes claimant underwent surgical repair of the "stenosis component of her condition performing L2-3, L3-4, and L4-5

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

laminectomies..." Claimant was seen in follow up on March 16, 2015 at which time there was no significant improvement. Claimant underwent x-rays on April 15, 2015, which were compared to her December 30, 2014 testing. Claimant was noted to have some slight improvement in the orientation of her spine. Claimant underwent an additional bone density test at St. Anthony's Medical Center on May 12, 2015. Claimant was noted to have an osteopenic score in her femur. Claimant saw Dr. Lee again on July 13, 2015 for a lumbar interbody fusion due to ongoing pain complaints. Claimant was noted to be suffering from collapsed lumbar disc according to the July 19, 2015 St. Anthony's Medical Center report. Claimant was suffering from worsening back pain radiating into both lower extremities. Claimant underwent an additional fusion procedure on July 21, 2015. Claimant was noted to have diagnoses of multi-level disc protrusions and spondylolisthesis, scoliosis, osteoporotic fracture at L3, which were addressed in that surgical procedure. Claimant did not previously have a fracture at L3. It is clear Dr. Lee's multi-surgical procedures which did not address the actual work injury failed and actually made claimant worse.

Claimant underwent an IME with Dr. Russell Cantrell on March 14, 2017. (Exhibit A) Dr. Cantrell agreed with Dr. Crane's opinion that claimant reached maximum medical improvement for her L2 and L4 compression fractures in June 2014. Dr. Cantrell further opined claimant's ongoing medical treatment with Dr. Lee was related to her pre-existing osteopenia/osteoporotic medical conditions. He provided claimant with ratings of disability indicating 8% permanent partial disability related to the work injury and 32% for her other pre-existing medical conditions.

Claimant obtained an IME report from Dr. David Volarich on April 11, 2016 and June 1, 2017. (Exhibit 3) Dr. Volarich indicated claimant suffered from post-laminectomy syndrome and pseudo arthritis. He provided ratings of 75% of the spine and 25% of the knee but thought claimant would be permanently and totally disabled as a result of her work injury.

VOCATIONAL EVIDENCE

Claimant's attorney sent claimant for a vocational evaluation by Delores Gonzalez. (Exhibit 1) Ms. Gonzalez concluded claimant would not be able to sustain employment in the open labor market. Ms. Gonzalez acknowledged claimant has no intellectual factors inhibiting her ability to return to work. However, she indicated she did not believe claimant had any transferable skills because of her physical limitations. (Deposition Page 19).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

The Employer/Insurer retained the services of vocational counselor Ben Hughes. (Exhibit D) Mr. Hughes indicated that if you consider the restrictions or lack thereof from Dr. Krause, claimant could return to any of her previous employment. He further indicated that if you considered the opinions and findings of Dr. Crane and Dr. Cantrell, claimant would be capable of working in a medium level demand category. He noted Dr. Lee opined claimant could not work but indicated his opinion did not include specific restrictions for utilization in an employability analysis. Mr. Hughes indicated that if you consider Dr. Volarich's restrictions, specifically the alleged need for claimant to rest in a recumbent fashion during the day, claimant would be unemployable. Additionally, Mr. Hughes noted Claimant indicated it was a combination of claimant's many physical ailments that she thought might make it difficult for her to return to work. Mr. Hughes then concluded that in his opinion if claimant were to be found unemployable it would be due to a combination of claimant's pre-existing conditions with the work injury.

Burden of Proof

Under Missouri Workers' Compensation law, the claimant bears the burden of proving all essential elements of his or her Workers' Compensation claim. *Fischer v. Archdiocese of St. Louis*, 793 S.W.2d 195, 198 (Mo. Ct. App. 1990); *Grime v. Altec Indus.*, 83 S.W.3d 581, 583 (Mo. Ct. App. 2002). Proof is made only by competent and substantial evidence, and may not rest on speculation. *Griggs v. A.B. Chance Company*, 503 S.W.2d 697, 703 (Mo. Ct. App. 1974). Medical causation not within lay understanding or experience requires expert medical evidence. *Wright v. Sports Associated, Inc.*, 887 S.W.2d 596, 600 (Mo. banc 1994).

Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony that it does consider credible and accept as true the contrary testimony given by the other litigant's expert. *Webber v. Chrysler Corp.*, 826 S.W.2d 51, 54 (Mo. Ct. App. 1992); *Hutchison v. Tri State Motor Transit Co.*, 721 S.W.2d 158, 163 (Mo. Ct. App. 1986).

In order to find liability for permanent total disability §287.020.7 RSMo provides that "total disability" is the inability to return to any employment, and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. See also *Houston v. Roadway Express, Inc.*, 133 S.W.3d 173, 178 (Mo. Ct. App. 2004). The main factor in this determination is whether, in the ordinary course of business, any employer would reasonably be expected to employ the employee in this present physical condition and reasonably

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 13-093011

expect him to perform the duties of the work for which he was hired. *Reiner v. Treasurer of the State of Missouri* 837 S.W.2d 363, 367 (Mo. Ct. App. 1992).

When the claimant is disabled by a combination of the work-related event and pre-existing disabilities, the responsibility for benefits lies with the Second Injury Fund. §287.200.1 RSMo. If the last injury in and of itself renders a claimant permanently and totally disabled, the Second Injury Fund has no liability, and the employer is responsible for the entire compensation. *Nance v. Treasurer of Missouri*, 85 S.W.3d 767 (Mo. Ct. App. 2003). In order to find permanent total disability against the Second Injury Fund, it is necessary that the employee suffer from a permanent partial disability as the result of the last compensable injury, and that the disability has combined with a prior permanent partial disability to result in total disability §287.200.1 RSMo.

For the claimant to be awarded future medical benefits, he must first prove that he sustained a compensable accident. *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511 (Mo. Ct. App. 2011); *Armstrong v. Tetra Pak, Inc.*, 391 S.W.3d 466 (Mo. Ct. App. 2012). It must then be determined if the need for future medical treatment flows from the work injury. *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511 (Mo. Ct. App. 2011). Further, future medical treatment is not required to cure and relieve the effects of the compression fracture and should be denied. The L2 and L4 compression fractures were healed by June 2014.

Dr. Lee is the only treating physician who testified he thought claimant's need for surgery resulted from the work injury. However, he admitted his records noted claimant likely had osteopenia prior to the work injury. Evidence shows Dr. Lee believed claimant had pre-existing osteoporosis, which gradually progressed over a period of perhaps five to ten years. Dr. Lee also noted claimant suffered from stenosis, which was causing compression on her nerves. His testimony indicated claimant's degenerative boney changes included spurring and that boney spurring was not caused by the December 3, 2013 fall. He noted that condition was also known as stenosis. Dr. Lee described his first surgical procedure known as a laminectomy.

Evidence shows both pre-existing and subsequent conditions are a factor in claimant's overall presentation and current complaints. The effects of the work related compression fractures alone did not render claimant permanently totally disabled, as she was released by the treating physician, Dr. Crane at maximum medical improvement to return to medium work duties in June

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-093011

of 2014. The Court finds the opinions Dr. Crane and Dr. DeGrange and Dr. Cantrell to be more credible and supported by the overall medical diagnostic evaluations and reviews. It is important to note even Dr. Lee additionally testified surgery is not normally performed for compression fractures and the evidence supports the surgeries were performed to address stenosis and degenerative condition as the primary reason for surgery as well as the compression fractures.

Dr. deGrange also testified Claimant's spine films suggested osteoporotic changes in addition to degenerative findings throughout the spine. Each of the MRI technicians interpreted the scans to reveal significant degeneration in claimant's lumbar spine. Dr. deGrange advised surgery was not indicated for the compression fractures and hardware should not have been used given the condition of her bones. He testified maximum medical improvement was reached for the work injury in June 2014.

Dr. Crane deposition testimony shows Claimant had osteoporosis and noted the definition for that diagnosis included a fall from standing height such as claimant had resulting in compression fractures as a criteria for the assignment of that diagnosis. Dr. Crane advised there was no indication for surgery. Evidence further shows, in fact, after two of the surgeries by Dr. Lee, claimant suffered a compression fracture at L3 without any impact or trauma but instead due to the poor quality of bones.

Dr. Cantrell testified, through deposition, claimant not only suffered from osteoporosis but significant degeneration in the spine prior to the work injury. Both he and Dr. deGrange concluded the apparent need for surgery perceived by Dr. Lee, which was in direct contradiction to the opinions of Dr. Crane and Dr. deGrange, was actually pre-existing findings in the spine. In review of the operative reports of Dr. Lee it appears he was performing surgery for degenerative changes with the bones in the spine as opposed to any specific acute traumatic injury or disc injury suffered by claimant. Those boney changes were long standing and pre-existed the work injury. The Court finds the evidence from Dr. deGrane, Dr. Cantrell and Dr. Crane to be more persuasive and credible. All felt claimant reached maximum medical improvement by the time of her release from treatment with Dr. Crane once the L2 and L4 compression fractures had healed in June of 2014.

The credible evidence additionally shows, Claimant's bone density reading for the femur and the diagnosis of several independent physicians, the effects of a fall, and the subsequent

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collapse at L3, Claimant had osteoporosis. The Court is persuaded from the testimony of the surgeons, including Dr. Lee, Dr. deGrange and Dr. Crane, you would not perform a surgery for compression fractures and in this case the evidence supports a finding Claimant did not need surgery for her compression fractures. The Court finds from clear and convincing evidence, Claimant had preexisting osteoporosis and subsequent surgeries only exacerbated an already fragile spinal structure. Consequently, the Court finds Claimant reached maximum medical improvement in June 2014.

Second Injury Fund Liability

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund*, 352 S.W.3d 604, 608 (Mo. App. W.D. 2011) (internal quotation marks and citation omitted). The Fund is a creature of statute, and benefits from the Fund are awarded only if a claimant proves that under §287.220.1 RSMo. he is entitled to such benefits. To prevail against the Second Injury Fund for permanent total disability, the employee must show: (1) A compensable work injury resulting in permanent partial disability; (2) that at the time of the work injury, the employee had a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment; (3) that the compensable injury and the pre-existing permanent partial disability combine together to result in permanent total disability; and (4) that the claim was filed within the statute of limitations. § 287.220.1.

A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W.2d 789, 793 (Mo. App. S.D. 1992). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo.App. E.D. 1999). "'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 277 (Mo.App. S.D. 1996).

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo Highway and Transportation Commission*,

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Issued by DIVISION OF WORKERS' COMPENSATION

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222 S.W.3d 322, 331 (Mo.App. S.D. 2007) Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo.App. E.D. 2008). The weight to be given the expert's opinion on medical causation is within the sole discretion of the [fact finder]. *Id.* at 458. The [fact finder] is the sole judge of the weight of evidence and credibility of witnesses. *Id.* The Administrative Law Judge is free to disbelieve the testimony of any witness, even if there is no contrary or impeaching evidence. *ABB Power T&D Company v. Kempker*, 236 S.W.3d 43, 51-52 (Mo.App. W.D. 2007). Thus, the ALJ is free to accept or reject any evidence, including expert evidence. *Id.*

The Court finds Claimant has failed to show by clear and convincing evidence any of her surgeries were necessary to cure and relieve her work related injuries on December 3, 2013. It is more evident from the all of the testimony and medical evidence provided, Claimant's back surgeries only exacerbated her condition and were unreasonable and unrelated to her work injury. There is no evidence Claimant had a significant preexisting permanent partial disability which was in any way a hindrance or obstacle to her employment. Claimant was working up to the time of her injury with no restrictions or impairments of any kind. As such, there is no liability for the Second Injury Fund.

**CONCLUSION**

In conclusion, the Court finds, based on the entire record, Claimant is incapable of employment in the open labor market, and said incapacitation is due to a combination of her ailments and infirmities enumerated above. However, the evidence supports a finding the surgeries and subsequent treatment after said surgeries were not medically necessary for the initial fall in December of 2013. The evidence supports Claimant reached MMI on June 14, 2014. The Court further finds the evidence supports a finding of permanent partial disability to Claimant's back at 20% of the body as a whole. The Court further finds Claimant's knee injury was not significant and as such was not a hindrance or obstacle to future employment. The Court finds Claimant sustained a permanent partial disability to the knee of 5%. The Court further finds the evidence fails to support a finding of total disability as it relates to this work injury, and as such the Court finds there is no liability to the Second Injury Fund. Past medical expenses paid by outside insurance are not owed by the Employer/Insurer for the non-work related treatment. Additionally, future treatment is not the liability of the Employer/Insurer.

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I certify that on 7-31-19

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.



Marvin O. Teer, Jr.

Administrative Law Judge

Division of Workers' Compensation