Debbie Gray v. Rolla Area Chamber of Commerce

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 05-081024**

**Employee:** Debbie Gray

**Employer:** Rolla Area Chamber of Commerce (settled)

**Insurer:** Missouri Employers Mutual Insurance Company (settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 16, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Amy L. Young, issued April 16, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **5th** day of September 2019.

---

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Curtis E. Chick, Jr., Member**

**Attest:**

**Secretary**

**Employee:** Debbie Gray

**Injury No. 05-081024**

**Dependents:** N/A

**Employer:** Rolla Area Chamber of Commerce (settled)

**Additional Party:** Second Injury Fund

**Insurer:** Missouri Employers Mutual Insurance (settled)

**Appearances:**

- Chris Slusher, attorney for the employee.

- Adam Herrmann, Assistant Attorney General for the Second Injury Fund.

**Hearing Date:** January 28, 2019

**Checked by:** ALY/kg

1. Are any benefits awarded herein? No.

1. Was the injury or occupational disease compensable under Chapter 287? No.

1. Was there an accident or incident of occupational disease under the Law? No.

1. Date of accident or onset of occupational disease? Alleged March 10, 2005.

1. State location where accident occurred or occupational disease contracted: Rolla, Phelps County, Mo.

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

1. Did the employer receive proper notice? N/A

1. Did accident or occupational disease arise out of and in the course of the employment? No.

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

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee alleged that in March of 2005 she was loading four boxes of magazines into the trunk of her boss's car and the wheel of the dolly she was using got caught on a paver and started to tip toward the car. She alleged that she threw her right leg around the dolly, did a 180 onto a tree, and then flipped onto the back of her boss's car.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Alleged cervical spine.
4. Nature and extent of any permanent disability: None awarded.
5. Compensation paid to date for temporary total disability: $\ 0.00
6. Value necessary medical aid paid to date by the employer-insurer: $\ 0.00
7. Value necessary medical aid not furnished by the employer-insurer: N/A
8. Employee's average weekly wage: $\ 440.00
9. Weekly compensation rate: $\ 293.33
10. Method wages computation: By Stipulation
11. Amount of compensation payable: None.
12. Second Injury Fund liability: None.
13. Future requirements awarded: None.

On January 28, 2019, the employee, Debbie Gray, appeared in person and with her attorney, Chris Slusher, for a Hearing for a final award. The claim against employer-insurer was settled prior to the Hearing. Assistant Attorney General Adam Herrmann appeared on behalf of the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Rolla Area Chamber of Commerce was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Employer's Mutual Insurance.
2. On March 10, 2005, Debbie Gray was an employee of Rolla Area Chamber of Commerce and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 440.00, resulting in a compensation rate of $\ 293.33 for temporary total disability benefits and permanent partial disability benefits.
5. The employer-insurer paid $\ 0.00 in medical aid.
6. The employer-insurer paid $\ 0.00 in temporary disability benefits.

1. Whether on or about March 10, 2005, the employee sustained an accident or occupational disease arising out of and in the course of her employment.
2. Whether the employer had notice of the employee's accident.
3. Whether the employee's injury was medically causally related to the accident/occupational disease.
4. Nature and Extent of Disability

a. Whether the employee is entitled to permanent partial versus permanent total disability benefits from the Second Injury Fund;

b. Whether the employee is entitled to past due permanent and total disability benefits.

1. The date of Maximum Medical Improvement.

The following exhibits were offered and admitted into evidence without objection:

Employee Exhibits:

1. Deposition of Dr. Brent Koprivica

Employee: Debbie Gray

Injury No. 05-081024

1. Curriculum Vitae of Dr. Brent Koprivica

1. Report of Dr. Brent Koprivica dated August 15, 2006

1. Report of Dr. Brent Koprivica dated June 7, 2011

1. Deposition of Dr. Craig Meyer

1. Curriculum Vitae of Dr. Craig Meyer

1. Deposition of Dr. Heidi Prather

1. Curriculum Vitae of Dr. Heidi Prather

1. Stipulation for March 10, 2005 injury-40% BAW

1. Medical Records of St. Mary's Belle Clinic

1. Medical Records of South County Anesthesia

1. Medical Records of Pain Relief Center

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Capital Region Clinic

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Capital Region Clinic

1. Medical Records of Barnes Jewish Hospital

1. Medical Records of Advanced Pain Center

1. Medical Records of Neurosurgical Specialists of West County

1. Work Excuses

1. Photographs

The Second Injury Fund Exhibits:

I. Deposition of Debbie Gray dated January 20, 2006

II. Deposition of Debbie Gray dated April 2, 2010

III. Claim for Compensation for Injury No. 05-081024

Judicial notice was taken of the file maintained by the Division of Workers' Compensation.

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW:

STATEMENT OF THE FINDINGS OF FACT:

Background

Employee was born on November 29, 1956 making her 62 years old at the time of Hearing. She is a high school graduate with one semester of college.

Employee began her employment at Rolla Area Chamber of Commerce (hereafter "Employer") in approximately April of 2004. She was employed on a full time basis as an Administrative Assistant. Her immediate supervisor was Linda Kuenzie. Employee had some low back problems at the time she was hired by Employer. She was able to perform her job duties except that there were periods of time she was receiving treatment for her low back and working subject

Page 4

Employee: Debbie Gray

Injury No. 05-081024

to physical restrictions. Employee was terminated by the Employer in May of 2005 for absenteeism. Employee has not applied for any other jobs since her termination.

Before working for Employer, Employee's work history consisted primarily of administrative assistant, secretarial, and management positions. Immediately prior to being hired by Employer, she worked for Capital Region Medical Center in Jefferson City, Missouri as an administrative assistant. She chose to leave and accept a position at Employer because of the long commute to Jefferson City from her home in Belle, Missouri. Before working for Capital Region Medical Center, she had taken approximately five years off from work and founded a soccer program. She wrote grants and purchased ten acres to create the soccer program. She was able to get the program into the local high school for kids, raised money, and developed a soccer complex. Her role in the soccer organization required her to be physically active. She was licensed to coach and referee. She mowed the 10 acres of soccer fields, stocked the concession area, ran soccer camps and was generally a jack of all trades. Before that, she worked at Maries County RII in middle school as a paraprofessional with special needs children. Before her employment with Maries County RII she worked for Central Ozark Private Industry and her job was to write grants and promote businesses in Rolla. The company created jobs for people who had been in trouble. She held this job for only a short time as her husband passed away and she could not keep the job.

Medical Treatment that pre-dated March 10, 2005

Employee began treating at St Mary's Belle Clinic as early as April 30, 1998. At that time she complained of right shoulder pain and was diagnosed with a trapezius strain. She was also noted to be experiencing stress with marital problems for which she was taking Zoloft. On August 10, 1998 she complained of back pain that was thought to be associated with a urinary tract infection. She was still taking Zoloft.

Employee was seen at Capital Region Owensville Clinic on April 13, 2004 with complaints of pain to the back of her neck and rib from a cough. She also complained of pain down the right leg. Employee underwent a CT scan of the abdomen and pelvis on May 4, 2004 due to complaints of right lower quadrant pain, bloating and sharp shooting pain into the right leg. The impression was hypertrophic degenerative arthritic disease. There was a handwritten note on the CT that stated "may be some discomfort from spine." She underwent an MRI of the lumbar spine at Mid-Missouri Medical Foundation, Inc. on May 18, 2004 that showed a bulging disc at L3-4, L4-5, and L5-S1 with suggestion of protrusion towards the right L4-5 neural foraminal canal and the right L5-S1 neural foraminal canal with disc material.

Employee was evaluated at Microsurgery and Brain Research Institute on June 29, 2004 with complaints of back pain that began approximately four years ago. She reported the pain radiated to the right groin, right hip and buttock and down her right leg into the right foot. It was recommended that she proceed with a trial of lumbar epidural steroid injections and a right sacroiliac joint injection. She was given a script for Flexeril.

Page 5

Employee: Debbie Gray

Injury No. 05-081024

Employee was first seen at South County Pain Management on July 26, 2004 for complaints of low back pain radiating into the right leg that reportedly began "two to three years ago." She rated the intensity of pain as 6/10 on average. She reported that it was "hurting her to the point where she can no longer perform daily activities and she is 'hurting all of the time.'" Employee underwent selective nerve root blocks at L4 and L5 as well as a right sacroiliac joint injection. She was instructed to be off work until July 29, 2004. She was prescribed Vicodin. On August 13, 2004 she returned and reported temporary relief following the injections. She was scheduled to undergo additional injections, but the procedure was cancelled due to complaints of nausea and feeling faint. She did undergo additional injections including nerve root blocks at right L4 and right L5 and a right piriformis injection on August 20, 2004.

On August 27, 2004 she was seen at St. Mary's Belle Clinic with complaints of mild back discomfort along L4-5 with no spasm, crepitation or tenderness. It was noted that she was seeing a spine surgeon for an upcoming surgery and was following up with pain management. She was noted to be off Zoloft with no depression type symptoms, however she was taking Xanax for anxiety. Dr. Daugherty was concerned about her chronic use of anti-inflammatories and recommended blood work to evaluate for possible side effects, but Employee declined.

Employee returned to Microsurgery and Brain Research Institute for follow up on September 7, 2004. She underwent injections but did not get any significant relief. She reported significant low back pain radiating in the L4 distribution. Dr. Deberghes recommended a right SI joint injection. If that failed to provide relief, Dr. Deberghes indicated that surgical options could be considered.

On September 8, 2004 she returned to South County Pain Management and underwent bilateral sacroiliac joint injections. At her follow-up appointment on October 11, 2004 her symptoms were noted to be more severe and she underwent a sacroiliac joint denervation by radiofrequency.

At her follow-up appointment at Microsurgery and Brain Research Institute on October 5, 2004 Employee reported injections had not provided significant relief. Dr. Deberghes felt she may be experiencing two problems: right sacroiliitis and disco genic pain from the L4-5 disc. She recommended a right SI joint rhizolysis.

On January 14, 2005 she returned to St. Mary's Belle Clinic and expressed concern that her low back problems (that she has had for quite a number of years) may be contributing to her headaches.

On January 17, 2005 Employee was seen at Capital Region Owensville Clinic and reported radiating symptoms to her back. At a follow-up appointment on February 15, 2005 she complained of generalized pain to the left shoulder, neck, and head. She was positive for fever and was swabbed to test for the flu.

Page 6

Employee testified at Hearing that in March of 2005, she had a busy week at work that involved three different events: an expo, Rolla Day at the Capitol in Jefferson City, and a luncheon. She testified that she was required to load Tupperware tubs with magazines, brochures and things for the kiosk. She testified that her boss told her to go to the shed and load boxes of magazines to take to the Capitol. She used a dolly to retrieve the boxes. She was loading four boxes of magazines into her boss's car from the dolly. She testified that she lifted two boxes into the car and though it was hard on her low back, she did it. She testified that she pulled the dolly up on the curb to be higher. She testified that the trunk of the car was open. She testified that the wheel of the dolly got caught on a paver and started to tip into her boss's new car. She testified that she threw her right leg around the dolly, "did a 180 into the tree" and then flipped onto the back of her boss's car. She testified that she did not fall to the ground. She testified that when she got up she knew something bad had happened because she had immediate excruciating pain in her neck. She testified that she sustained three meniscus tears to her right knee that she attributes to this incident, however no claim is made for right knee injury at Hearing. She testified that she immediately told her boss, Linda Kuenzie, and a co-worker, Stevie Kearse, that she didn't know what happened, but she did something loading boxes. She testified that Linda Kuenzie joked about it and said, "What are we going to do with her, just take her out and shoot her." Employee testified that she told her, "No, Linda, this is serious." Employee testified that Ms. Kuenzie asked if she wanted to go home. Employee felt that they were depending on her for the upcoming three events because she had an SUV and it was always loaded so she finished working. She testified that she left early to go home. She testified that the next day she was on her way to work and stopped in Vichy, Missouri, because the pain was so bad. She testified that her left arm hurt. She testified she called a friend from Belle, Mo and said, "Something's really wrong. It's scaring me." Employee testified that her friend picked her up and Employee asked her to drop her off at work. Employee testified that her car was left at the Vichy airport.

While working that same day Employee was getting ready for an event and they were short on vacation planners. She testified that she went to the mailbox that was on a little ravine, opened it up, stuck her hand under the mailbox to slide the contents out on her left hand, but when that happened her "arm was gone" and she went to the ground trying to catch the contents. She testified she picked up one box by twine and told Ms. Kuenzie that she needed someone else to pick up the rest because she couldn't do it. She testified that the following Sunday there was a business expo at UMR but her arm was "gone." She testified that she had excruciating pain in the back of her head and down her left arm. She testified that she continued to talk to Ms. Kuenzie about her symptoms, but Ms. Kuenzie wasn't willing to bring in a temporary replacement. Employee testified that she could not continue to work and needed to get medical treatment. She testified that she was already seeing Dr. Coleman and Dr. Weatherington for her back problems and also sought treatment for her neck. Employee testified that after her March of 2005 accident she tried conservative treatment. She testified that she was limited, but pushed herself. She testified that there were lots of Chamber events that required lots of loading, a monthly luncheon that required setting everything up, a monthly newsletter and ribbon cuttings. Employee testified that she was terminated for absenteeism around May 1, 2005.

Employee testified that she never "saw anything come through" about workers' compensation. She testified that Ms. Kuenzie said there was no workers' compensation insurance because the employer only had five employees and therefore were not required to have coverage. Employee testified that her co-worker, Stevie Kearse, called her and said that they did have workers' compensation insurance. Employee testified that she went to the Department of Labor and Industrial Relations and spoke to "Glen Easterman" and a fraud investigation was filed. It was ultimately determined that the employer did have workers' compensation insurance. Employee testified that she filed a claim with the assistance of "Mr. Easterman" and then hired an attorney.

Employee filed her original claim for compensation on or about August 17, 2005. She alleged a date of accident of "week of March 1, 2005" and identified the body parts injured as "lumbar spine-cervical spine, neck and shoulder." The accident is described as "loading and un loading heavy boxes of material pulling loads on dolly up from shed - excessive weight fell at mailbox after pulling out 2 large heavy boxes of magazines." She also filed a claim against the Second Injury Fund and identified a pre-existing disability to the lower lumbar spine. An amended claim was filed on August 26, 2005 amending the date of accident to March 10, 2005, amending the body parts injured to "left shoulder and cervical spine of upper back" and describing the accident as "Claimant had gone to the mailbox area to pick up the mail. There were two cardboard containers in the mailbox. Claimant, believing that the containers held brochures, lifting the boxes out of the mailbox however, the contents in the containers were magazines and the weight was significantly heavier than she anticipated. Claimant fell to the ground injuring her left shoulder and upper back."

Employee testified by deposition on January 20, 2006. When asked to clarify the date of accident, Employee testified, "It was actually a two-week period in there. We had three to four different events and it started hurting. I can't place an exact date . . . but the first event started the 1st of March." She testified that after the Business Expo, which she thought was on March 13, 2005, she "was really down." She testified that

"The first event, to my recollection, was getting out our newsletters . . . I was taking the big containers to the Post Office, which generally had help on. Did not at that time. I took those. To the best of my recollection, the second one, we had Rolla Day at the Capitol, which was coming here to Rolla. Setting up the third floor of the rotunda. Tables, chairs, bringing brochures, booklets, telephone books . . . Prior to that, coming here that day, I had loaded numerous boxes on a dolly and pulled them from a lower shed up to the hill and loaded them in a car to bring the next day here. After setting up the tables in that day-that is one of the events. Had help taking it down, taking it down to the parking garage in the Capitol. The person that helped me was in a 'no parking' zone, so he set everything out on the sidewalk inside the guard gate and had to move. And I had to end up loading the whole rest by myself, up into my Jeep."

She testified that she thought Capitol Day was on the 9th. Later in her deposition she gave more detail about using the dolly to load boxes and testified that she "loaded boxes of Missouri

vacation planner books, phone books, brochures on a dolly and pulled them from a storage shed up to my boss's car and loaded her trunk." She testified that this increased pain in her shoulder and caused pain in her neck. Then she explained that later that same day, that loading and setting up tables and going up and down steps was rough. The same week as Capitol Day she described another incident where she went to a mailbox and retrieved two boxes. She testified that the boxes contained vacation planners/brochures. She testified that they were heavy. She testified that there was a little ravine that she stepped over, pulled the box down and put her left arm out level with the mailbox to slide the mail off onto her arm. She testified that she reached up and moved the first box onto her left arm, but could not hold it and her left arm/shoulder gave out and she went down on her left knee. She testified that she told her boss, Ms. Kuenzie, she could not do it and her boss instructed her to have a co-worker get it. At deposition, she testified that it was after this mailbox incident that Linda Kuenzie made the comment to her, in front of Stevie Kearse, "what are we going to do with her? We just need to take a gun and shoot her and take her out of her misery."

She described two more instances at the business expo in Rolla that required her to set up and break down tables and carry brochures that caused her shoulder to hurt. She testified that she first sought treatment with Dr. Deberghes about a week after the Expo.

She testified that after the incident that involved taking cartons to the Post Office, her left shoulder starting hurting and felt that "it was pulling to the left." She testified that the pain never went away and got worse as she continued to do more things.

Employee testified by deposition a second time on April 2, 2010. Employee testified that she believed she injured her lumbar spine at the time of the work injury, "Because I never had the pain and the back injury prior to that excruciating pain until that point." Then she testified that she first noticed the low back pain in April of 2004 and she acknowledged she received treatment for back pain before March of 2005. She also testified that she was alleging her right knee was damaged as part of her work injury because she went down on her right knee when the dolly tipped on the curb and also at the mailbox incident she hyperextended her right knee.

On April 5, 2005 Employee was seen at St. Mary's Belle Clinic for complaints of a possible urinary tract infection with associated complaints of back pain. She reported a past medical history including migraines, anxiety, depression and chronic back pain, herniated disc. She was noted to be taking Fioricet for headache, Xanax, and Percocet for back pain. She was noted to have "generalized body aches" and it was recorded that "She does not have any particular pain complaint at this point in time." There is no mention of cervical or left shoulder pain. Because of a prior history of hospitalization for pyelonephritis, she was sent to the emergency department for evaluation and treatment of her urinary tract infection.

On May 18, 2005 Employee was seen at Capital Region Owensville Clinic for follow up of her UTI. She complained of back pain, increased pain to her left shoulder, and decreased pain to her right knee. She had recently been to the emergency room for pyelonephritis. She also had leftsided hip pain. There is no mention of neck pain or reference to a work accident.

Employee: Debbie Gray

Injury No. 05-081024

Employee had a follow-up visit at South County Pain Management on May 26, 2005 for low back complaints that she had been treating for prior to March 10, 2005. At this visit she complained of low back pain, shoulder and knee pain, back of neck pain and pelvic area pain. She did report near complete relief following her last injection. She reported that she began having left groin radicular symptoms with burning pain three months prior. She reported that she had been off work since April 20, 2005 and that she was initially off for a sinus infection and UTI. She reported that her job is now requiring a full medical release for those conditions and her back condition before allowing her to return to work. She was referred for a discogram.

On June 14, 2005 she was seen in follow up at Capital Region Owensville Clinic with complaints of pain in her neck and left shoulder. The nurse noted swollen neck glands off and on for 1 1/2 weeks. She complained that it hurt to turn her neck to the left side. The impression was left shoulder strain. It was also noted that she had a termination letter due to medical leave.

On June 30, 2005 Employee was seen at St. Mary's Belle Clinic with complaints of left shoulder pain becoming progressively worse since March. She also had complaints of back pain for which she was actively treating for a herniated disc. It was noted that she saw a chiropractor 1 1/2 weeks prior. In the history section it was noted that Employee "was loading tubs and setting up tables and pulling sensation after carrying load of book." She was scheduled for an MRI of the left shoulder. Employee underwent an MRI at Rolla Radiology Group on July 6, 2005 with a history of "burning and throbbing: pain in the left shoulder and tingling down the left arm and hand." The MRI showed mild to moderate rotator cuff tendinopathy predominantly involving the supraspinatus and infraspinatus tendons, some fluid indicative of bursitis or sequelae of the prior shoulder injection.

Employee underwent a discogram on July 20, 2005 that was positive for pain at L3-4, L4-5, and L5-S1. On August 4, 2005 Dr. Deberghes reviewed the discogram results and noted they were markedly positive at L3-4, L4-5 and L5-S1. Dr. Deberghes discussed lumbar surgical options with Employee. Employee also reported that "On March 9, 2005 she began experiencing neck pain radiating to the left arm and the C7 type dermatome after pushing cartons full of magazines at work." Dr. Deberghes recommended an MRI of the cervical spine to rule out a herniated disc.

On August 19, 2005 employee returned to Pain Management Services. It is noted, "The patient reports new health problem-cervical spine are, hurt 1 to 2 weeks of March while lifting and loading boxes of magazines at work. Also left arm went almost numb." The assessment was C6-7 disc protrusion, C5-6 degenerative disc disease with mild thecal sac effacement, cervical radicular pain, and cervicalgia. She was given a C5-6 epidural steroid injection. On September 14, 2005 she returned to South County Pain Management with complaints of pain to the back of head, neck, left shoulder, arm and hand. At that visit she underwent a C5-6 midline cervical epidural steroid injection. Employee had a follow-up appointment on October 3, 2005 and reported temporary relief from the injection.

Page 10

**Injury No. 05-081024**

Employee was seen at Pain Relief Center from September 2, 2005 through September 29, 2005 for complaints of pain in her low back, right leg, knee, and left shoulder, neck, back of head, arm and hand.

On October 3, 2005 she returned to South County Pain Management with continued complaints of pain in the back of neck and head, shoulder and arm. On October 11, 2005 she returned to St. Mary's Belle Clinic with complaints of a cervical/lumbar disk problem and reported that she had been going to a pain clinic and was scheduled to see a spine specialist the next day.

On November 8, 2005 Employee followed up with Dr. Deberghes and reported that cervical injections and physical therapy did not provide significant relief. Dr. Deberghes recommended Employee proceed with surgery to the cervical spine.

Dr. Weatherington performed an arthrodesis and two-level anterior cervical discectomy and fusion at C5-6 and C6-7 on December 15, 2005. The post-operative diagnosis was cervical spondylosis at C5-6 and C6-7. Post-operatively Employee reported her arm symptoms resolved, but she still had some neck discomfort.

Employee was seen by Dr. Deberghes for a consult on May 1, 2006 for her medications. She complained that she was retaining fluid and noticed swelling in her hands and feet. She reported that her arm was better since her cervical neck fusion. The assessment was depression and neck pain. Dr. Deberghes discontinued her Zoloft and started her on Cymbalta for both depression and pain control. She noted that the edema was of an unknown etiology, possibly related to her thyroid. She ordered blood work for further evaluation.

Employee underwent a CT scan on or about May 12, 2006 that reportedly showed good fusion at C5-6. She was encouraged to continue use of an external bone stimulator.

In approximately 2010 Employee underwent a spinal cord stimulator trial, but a permanent spinal cord stimulator was never placed.

Employee underwent an x-ray of the right knee at Barnes Jewish Hospital on November 14, 2011 that showed a right total knee arthroplasty in near-anatomic position and mild tri-compartment left knee osteoarthritis. Employee underwent an x-ray of the lumbar and cervical spine on August 3, 2012 that showed her C5-7 cervical fusion remained unchanged. It also showed mild C3-5 and moderate L1-4 degenerative disc disease.

Employee underwent lumbar surgery by Dr. Meyer on July 29, 2013 that included an anterior lumbar interbody fusion at L4-5 or XLIF, a decompression at L5-S1 and a posterior fusion at L4-5.

Employee underwent an MRI of her neck on January 27, 2016 that showed her previous fusion, an artifact or possible disc osteophyte centrally at C5-6, and a central disc protrusion at C7-T1. Employee underwent an MRI of the right knee on September 20, 2016 that showed a total knee arthroplasty and no joint effusion.

Page 11

Employee: Debbie Gray

Injury No. 05-081024

She underwent an MRI of the low back on September 20, 2016 that showed a small spondylotic ridge at T12-L1, L1-2 and L2-3, mild/moderate encroachment of the existing L1 nerve roots, a disc bulge at L3-4. Facet arthropathy at L1-4, ad ligamentum flavus hypertrophy at L2-4.

Employee was evaluated by Dr. Peter Yoon on June 5, 2017 for low back and neck pain. She reported chronic pain issues since an accident in 2005. She also complained of right knee issues. She complained of neck pain going into her shoulder blades and numbness in her hands that wakes her up at night. She had a prior history of bilateral carpal tunnel syndrome in the 1990s. She reported back, buttock, and nonspecific leg pain with leg fatigue associated with any activity. Dr. Yoon indicated there was no surgical solution to help with her chronic pain issues and that she would continue with pain management.

Employee underwent pain management for her cervical and lumbar complaints at Advanced Pain Centers from September 22, 2015 through January 27, 2017.

Work Excuses

Work excuses from Pain Management Services indicate that Employee was taken off work from July 26, 2004 through July 28, 2004 (according to corresponding medical records this was for treatment to the lumbar spine), August 13, 2004 (according to corresponding medical records this was for treatment to the lumbar spine), September 8, 2004 through September 13, 2004 (according to corresponding medical records this was for treatment to the lumbar spine), from October 11, 2004 through October 17, 2004 (according to corresponding medical records this was for treatment to the lumbar spine), January 13, 2005 through January 16, 2005 (according to corresponding medical records this was for treatment to the lumbar spine), and February 15, 2005 through February 28, 2005 (for influenza). There is a work excuse dated November 29, 2004, however the date Employee was to be excused from work is illegible.

Present Symptoms

Employee testified that her current pain includes pain at the top of her buttocks that goes down her legs and across her back. She testified that she has pain between her cervical and lumbar spine that has also affected her "thoratic" [sic]. She testified that she lives in pain, has simplified her life, and has changed her lifestyle. She testified that she no longer participates in the community like she once did. She testified that she tries to keep her mind active and walks, but her quality of life if not the same. It is difficult for her to sit for extended periods of time. She believes that she would be a liability for any potential employer and no one would hire her because of her pain medications. She also testified that her vision has been impacted and that her eye was "split from the impact." It is unclear if she was referring to the impact from her alleged work accident or something else and there is no evidence on the record to further clarify this testimony. She testified that she does not believe she can work because of permanent nerve damage.

Page 12

**Injury No. 05-081024**

Employee testified that she continues to receive treatment for her neck and back. She testified she is currently undergoing pain management with Dr. Lucio at St Mary's hospital and also treats with her primary care doctor, Dr. Pearson. She also see a Dr. Jarrbo and is scheduled to meet with another doctor. She did not describe her treatment in any detail and the records are not available for review. She testified that she also sees Dr. Anderson, a foot doctor, in Rolla for neuropathy in her foot from nerve damage to the legs. These records are not available for review. She testified that she has lymphedema in her legs and feet that she believes is from nerve damage at L5. She testified that she can experience swelling at any time that causes her to be immobile. She testified that when this happens she must keep her foot elevated and wrapped with tight bandages.

She testified that she has seen approximately nine different pain management doctors and has taken medications including Percocet, morphine sulfate, Voltaren gel, and Cymbalta.

Employee also testified that she had a right knee replacement in approximately 2000. While she is not claiming right knee injury as part of this claim, she testified that her accident involving the dolly caused three meniscus tears in her right knee. On cross-examination, she testified that following her right knee replacement, she developed blood clots and was hospitalized for 30 days.

Dr. Meyer testified by deposition on April 26, 2013. Dr. Meyer is a board certified spine surgeon at Columbia Orthopedic Group. Dr. Meyer first saw Employee in July of 2009 with chief complaints of low back pain in the right side of her lumbosacral spine that radiated down her right leg along with complaints of numbness and tingling in her first and second toes. He recommended she obtain a new MRI and it showed multilevel disc degeneration with some instability or anterolisthesis of L4 and L5. It also showed a foraminal disc herniation at L5-S1 that appeared to be putting pressure on her exiting L5 nerve root. Dr. Meyer performed surgery on July 29, 2013 that included an anterior lumbar interbody fusion at L4-5 or XLIF, a decompression at L5-S1 and a posterior fusion at L4-5. Dr. Meyer testified that six weeks postoperatively she was "doing really well" and that her pre-operative pain was mostly gone. She was still having some intermittent right shooting leg pain. He testified that she had a solid fusion. He testified that when he last saw her in September of 2010 that she still complained of a lot of back pain and he referred her to pain management to see if she was a candidate for a spinal cord stimulator.

Dr. Prather testified by deposition on February 25, 2014. Dr. Prather is a professor at Washington University and the Chief of Physical Medicine and Rehabilitation at Washington University Orthopedics. Dr. Prather testified that when she became her patient she was on disability and had chronic pain in multiple areas including her knee, spine, low back and cervical.

Page 13

Employee: Debbie Gray

Injury No. 05-081024

spine. Her first evaluation of Employee was on August 22, 2012. She testified that Employee's reported pain was consistent with her subjective findings on physical exam. She explained that Employee underwent some bloodwork to look for infection that was suspected by a Dr. Barrack. Dr. Prather reviewed Employee's x-rays taken in the office that day and ordered a new MRI that was taken on September 5, 2012 that showed her fusion at C5-6 and C7 and degenerative changes. MRI of the lumbar spine taken the same day showed degenerative changes, a slight protrusion at L-2 and retrolisthesis at L2-3-indicative of degenerative change. She testified the findings were consistent with Employee's reported pain. Dr. Prather testified that after the first visit they discussed a treatment plan by phone that included medications and to restart physical therapy. She thought she was a good candidate for a behavioral-based pain program. She testified that Employee did not return until November 14, 2013. She reported that she was trying to settle her case and had no change in her symptoms. She testified that she had a discussion with Employee about whether or not she needed a myelogram that was reportedly recommended by another doctor. Employee did not want the test and Dr. Prather instead recommended an EMG test. The EMG was performed on November 25, 2013 to evaluate whether she had a nerve injury. It showed a chronic L5 root injury consistent with radiculopathy and her history of lumbar fusion. She also had a nerve conduction performed that was normal. Dr. Prather testified that she informed Employee she thought she had reached maximum medical improvement. She testified that she has not seen Employee since November 25, 2013. On cross-examination, Dr. Prather testified that Employee had reported to her that she had a spinal cord stimulator permanently placed by a pain medicine specialist in Eureka, Missouri. Dr. Prather also testified that she had no opinion as to the condition of Employee's low back prior to March of 2005.

Independent Medical Evaluations by Dr. Koprivica

Employee was evaluated by Dr. Koprivica for purposes of an independent medical evaluation on August 15, 2006. Dr. Koprivica documented Employee's work injury as follows: "Around the first of March of 2005, Ms. Gray sustained significant injury to her neck. She was working a seven day work week associated with Chamber Day at the Capitol. As part of these tasks, she had to move magazines using a two-wheeler and load them into vehicles in order to take them to the Capitol. She had to take materials away from the Capitol and back to the office and unload them. Associated with these tasks, she began having left-sided neck pain that radiated into her left shoulder. She began having severe headache. The pain radiated down the arm with intractable symptoms, historically."

At the time Dr. Koprivica evaluated claimant on August 15, 2006 (approximately 1 1/2 years after her alleged accident date) she complained of severe neck pain, sitting tolerance of less than an hour, standing tolerance of less than an hour (primarily limited by her low back), walking tolerance less than 45 minutes, severe daily headaches and the need to lay down during the day. He stated, "Her reasons for laying down include problems with depression, which she relates to her inability to do anything, the severity of her headaches on a daily basis and the side effects from the multiple narcotics she is taking." Under "Review of Systems" he noted she was positive for depression and anxiety. Under the history section of the report he also noted that she "did have significant depression and anxiety issues in her treatment records. However, she did respond to treatment over time, historically."

Page 14

Employee: Debbie Gray

Injury No. 05-081024

Dr. Koprivica opined that Employee's work activities in March of 2005 "where she was moving the materials and working excessive hours represent not only a substantial factor, but the prevailing factor leading to the identified cervical disk herniations at C5 and C6 that led to the necessity of the anterior cervical discectomy and fusion at C5-6 and C6-7." He further opined that she was not at maximum medical improvement in reference to her March of 2005 injuries and was in need of a neurosurgical evaluation. He opined she was temporarily and totally disabled.

With regard to Employee's pre-existing conditions, he noted that Employee began having significant problems with her low back in April of 2004. He noted that she had been diagnosed with degenerative disk disease at L3-4, L4-5, L5-S1 with significant bulging and narrowing at L4-5 and L5-S1. He noted she had undergone conservative treatment including epidural steroid injections without relief. Dr. Koprivica opined that she had a pre-existent industrial disability based on her lumbar condition and assigned 35% permanent partial disability to the body as a whole existing prior to March of 2005. He opined it was probable she was permanently and totally disabled but reserved his final opinion until she reached maximum medical improvement.

Dr. Koprivica re-evaluated Employee on June 7, 2011. He obtained additional history from Employee and reviewed additional medical records. Dr. Koprivica addressed in his report that Employee now "associates disabling symptoms in her right knee and low back with the injuries in March of 2005. This is clearly contrary to my understanding of the history based on my evaluation of August 15, 2006, the review of the new records and my re-evaluation today, June 7, 2011." Dr. Koprivica also noted: "I would point out that Ms. Gray told me today about a particular incident when she was moving the magazines. She was loading the magazines into the trunk of her boss' car. After removing two of the boxes of magazines and placing them in the trunk, she pulled the two-wheeler up onto the curb, so she would not have to bend as far to lift remaining two boxes and put them in the trunk. As she was doing this, the wheel of the two-wheeler came off the curb causing it to twist and fall. In order to avoid striking her boss' car with the two-wheeler, she grabbed it. This basically spun her and twisted her in an awkward fashion as the two-wheeler was falling. She was able to control it and not strike the car, but, in doing so, she had immediate left-sided neck and clavicular pain." She described that she continued to work and that ongoing lifting and carrying tasks were associated with progression of symptoms and then "Before leaving employment in April of 2005, she had an event where she fell at the mailbox. The fall at the mailbox actually was a result of the problem in her neck that had its onset in March of 2005. As she was pulling two large packages onto her left arm from the mailbox and supporting them, she had severe pain that was to the level that basically dropped her to the ground."

In his report, Dr. Koprivica also documented that Employee reported to him she had been hospitalized at St. John's medical center for a month in approximately October of 2008. His impression was she described a cerebrovascular incident, but her history was that she was under the care of a psychiatrist, Dr. Stromsdorfer. He noted "It sounds like there may have been a functional response to her physical impairments and resultant disability." He also noted that she was having problems with her right knee and surgery was performed in 2008 with a right total

Page 15

Employee: Debbie Gray

Injury No. 05-081024

knee arthroplasty eventually performed on January 20, 2010. He documented additional history of her lumbar fusion procedure and failed lumbar surgery. He noted she underwent a spinal cord stimulator trial in 2010, but that a permanent spinal cord stimulator was never placed. He also noted she "continued to have significant anxiety and depression issues" and was seeing Dr. Stromsdorfer for her psychiatric treatment. Dr. Koprivica noted that Employee "could not recall specific facts on my questioning ... In reviewing some of the treatment records, her confusion was apparent." He further noted that "She describes being socially isolated at this point. She has crying spells. She is extremely depressed." On physical exam he noted, "She did have obvious psychological distress on examination today. She did cry throughout the history portion of the examination on multiple occasions. She had a very depressed affect."

Dr. Koprivica opined that she reached maximum medical improvement. He opined that she has issues of a psychological /psychiatric nature and he considered the March of 2005 a substantial factor in causing her "ongoing disabling psychological disability", and recommended referral to a mental care expert.

Regarding the cervical spine, he opined Employee's work activities in March of 2005, including the specific incident with the two-wheeler "were competent to result in cumulative injury in the cervical region with the specific injury to the cervical spine that led to the necessity for the anterior cervical discectomy and fusion at C5-6 and C6-7." He further opined that she sustained a 35% permanent partial disability to the body as a whole in reference to the March of 2005 injury and that any psychiatric/psychological disability would be in addition to that rating.

Referable to her pre-existing lumbar spine condition, he continued to be of the opinion that she had a 35% permanent partial disability prior to March of 2005 and he indicated that prior to March of 2005 she would have been restricted from frequent or constant bending at the waist, pushing, pulling or twisting and should have avoided sustained or awkward postures of the lumbar spine.

He indicated that he could not state within a reasonable degree of medical certainty that her right knee or lumbar problems were causally related to the March of 2005 injury, therefore excluded the right knee and lumbar treatment she received since his August 15, 2006 evaluation from his overall opinions. With regard to the cervical spine, he recommended restrictions of no commercial driving, no activities involving "jarring", no climbing, only occasional lifting/carrying no greater than 20 pounds and to avoid sustained or awkward postures of the cervical spine as well as repetitive or sustained activities above shoulder girdle level.

He opined that her combined disabilities arises above the simple arithmetic sum of the separate disabilities and that due to the impact of this combination she is permanently and totally disabled. He clarified that his opinion excluded the progression of disability in the lumbar spine as well as permanent partial disability associated with the right knee. He recommended a vocational evaluation. He also opined that she will need ongoing psychological/psychiatric treatment and chronic pain management for her neck and he attributed the need for treatment to the March of 2005 injuries.

Page 16

MNKOI 0000714488

Employee: Debbie Gray

Injury No. 05-081024

Dr. Koprivica testified by deposition on November 8, 2017. Dr. Koprivica is board certified in occupational medicine and has an occupational medicine practice where he evaluates issues of impairment and disability. Dr. Koprivica testified that he determined that Employee had severe disability to the lumbar spine that pre-existed her March of 2005 accident. In support of this opinion, he testified that she had invasive treatment including injection therapies and that she had a provocative discography done and that this test is only done unless one has a severe disability and you are contemplating a discectomy and fusion. He also testified that her description of the March of 2005 injury was "competent to result in disc injury with herniation or disc bulge." On cross-examination he testified "She actually had an occupational disease claim, and I think there was some contribution to the pathology from ongoing cumulative injury, and that one specific event was the final straw."

Dr. Koprivica also testified that Employee's records document that she has psychological issues, he thought they were part of her disability, but that he didn't think her psychological issues were causing exaggeration of her physical problems. He testified that he observed she had a "very depressed affect . . . She was a very withdrawn, flat person that was crying during the whole time I was questioning her . . . I viewed that as being evidence that she was—she had psychological impairment at that point." When asked how the psychological issues affected his opinion of total and permanent disability, he testified, "Well, I thought, physically, she was totally disabled, even without the psych considerations. The psych disability is something I believe there was likely some psychological disability prior to the claim of March 2005. I thought there was contribution to the psychological disability from the March 2005 claim. My general opinion was that even if I look at the psych and the physical from the March 2005 claim, that's not totally disabling. It was when I looked at the global presentation where I combined what existed before March 2005 that she became totally disabled. She clearly had additional disability, physically, that would contribute to psychological disability that occurred since March of 2005, but I'm excluding that as a consideration. I thought she was totally disabled even before that." Dr. Koprivica testified that he had an opportunity to review a report prepared by Dr. Brockmeyer, a psychiatrist and a 2015 vocational disability assessment by England & Company and these reports did not alter his opinions. These reports are not part of the record.

He testified that it was his opinion that the material moving Employee performed and the excessive hours she spent doing it with neck pain, and specifically the injury she described involving the two-wheeler were a substantial factor in her development of cervical radiculopathy that resulted in surgery. He testified that she is permanently and totally disabled due to the synergism of her combined neck and low back disability. He testified that he excluded from his opinion the problems with her right knee and the progression of disability to the low back subsequent to the work injury. He further testified that he thought she was physically totally disabled, even without her psychological considerations.

Stipulation for Compromise Settlement.

Employee settled her claim against Rolla Area Chamber of Commerce for $35,000.00 based on 40% of the body as a whole. According to the Stipulation for Compromise Settlement the

Page 17

Employee: Debbie Gray

Injury No. 05-081024

employer did not pay any medical or temporary total disability benefits and liability was disputed.¹

The burden is on the employee to prove all material elements of the employee's claim. *Melvies v. Morris*, 422 S.W.2d 335 (Mo.App.1968). The employee has the burden of proving that not only the employee sustained an accident that arose out of and in the course of employment, but also that there is a medical causal relationship between the accident and the injuries and the medical treatment for which the employee is seeking compensation. *Griggs v. A.B. Chance Company*, 503 S.W.2d 697 (Mo.App.1973). Employee's burden of proof for causation is reasonable probability. *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697 (Mo.App.W.D.1973). Probable has been defined to mean that which appears to be founded in reason and experience which inclines the mind to believe but leaves room for doubt. *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271 (Mo.App.S.D.1996).

Under § 287.020.2 RSMo (2000), the word "accident" is defined to mean, "an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury." "Arising out of employment" means that a causal connection exists between the employee's duties and the injury for purposes of workers' compensation. *Cruzan v. City of Paris*, 922 S.W.2d 473 (Mo. App. E.D. 1996) *overruled on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). An injury is compensable only if it is clearly work related, and an injury is clearly work related only if work was a substantial factor in the cause of the injury and the resulting medical condition. However, an injury is not compensable if work was merely a triggering or precipitating factor. § 287.020.2 RSMo (2000)

An "occupational disease" is defined by Section 287.067.1 as "an identifiable disease arising with or without human fault out of an in the course of employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section." "An injury by occupational disease is compensable only if it is clearly work related and meets the requirements of any injury which is compensable as provided in subsections 2 and 3 of section 287.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor." Section 287.067.2 RSMo.

---

¹ The Stipulation for Compromise Settlement submitted into evidence by Employee (Plaintiff's Exhibit 9) was signed by Employee and Employee's attorney, but was not signed by Attorney for Employer/Insurer and was not approved by the Administrative Law Judge. However, judicial notice was taken at Hearing of the file maintained by the Division of Workers' Compensation and the Division's records reflect that the Employee and Employer/Insurer settled the claim against the Employer on April 24, 2018 for $35,000.00 based on a compromise of all issues and approximate disability of 40% of the whole body.

Page 18

**Injury No. 05-081024**

Further, the claimant bears the burden to show that a disability resulted from an accident and the extent of that disability. *Goleman v. MCI Transporters*, 844 S.W.2d 463, 465 (Mo.App. W.D.1992) (overruled on other grounds by *Hampton*, 121 S.W.3d 220). "Proof of permanency of injury requires reasonable certainty." *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697 (Mo.App.W.D.1973). This proof must be based on competent and substantial evidence and not merely on speculation. *Id.*

> "The testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause and extent of the disability when the facts fall within the realm of lay understanding. An injury may be of such a nature however that expert opinion is essential to show that it was caused by the accident to which it is ascribed. Where the condition presented is an acute aggravation of a pre-existing degenerative back condition with nerve root irritation, or any other sophisticated injury, which requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding...."

*Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 704 (Mo.App.1973) (internal citations and quotation marks omitted).

Section 287.020.7 RSMo provides as follows:

> The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. *Kowalski v M-G Metals and Sales, Inc.*, 631 S.W.2d 919, 922 (Mo.App.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. *Reiner v Treasurer of the State of Missouri*, 837 S.W.2d 363, 367 (Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". *Brown v Treasurer of the State of Missouri*, 795 S.W.2d 479, 483 (Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. *Id.* The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. *Reiner* at 365. See also *Thornton v Haas Bakery*, 858 S.W.2d 831, 834 (Mo.App.1993).

Page 19

Section 287.220.1 RSMo (2000) requires that, in order to have Second Injury Fund liability, a claimant must have "a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or obtaining reemployment if the employee becomes unemployed. In other words, if the primary injury against Employer is not a compensable injury, then the Second Injury Fund claim fails.

The test for finding the Second Injury Fund liable for permanent total disability is set forth in Section 287.220.1 RSMo., as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employee at the time of the last injury is liable is less than compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in Section 287.414.

Under Section 287.220.1 RSMo, the Second Injury Fund has no liability and the employer is responsible for full, permanent total disability benefits if the last injury "considered alone and of itself" results in permanent total disability (emphasis added). Roller v Treasurer of the State of Missouri, 935 S.W.2d 739 (Mo.App.1996) and Maas v Treasurer of the State of Missouri, 964 S.W.2d 541 (Mo.App.1998).

Given the nature of the claim and the evidence submitted, Issues 1 and 3 will be addressed at the same time.

Issue 1. Whether on or about March 10, 2005 the employee sustained an accident or occupational disease arising out of and in the course of her employment.

Employee: Debbie Gray

Injury No. 05-081024

Issue 3. Whether the employee's injury was medically causally related to the accident/occupational disease.

In order to meet her burden of proof in this matter, Employee first needed to present credible testimony on her own behalf regarding the alleged accident or occupational disease that occurred at work that resulted in the cervical injury. I find that Employee failed to meet her burden of proof on the issues of accident and medical causation because I do not find Employee's testimony to be credible. In comparing her testimony at Hearing, her statements to the treating and examining physicians, and her prior deposition testimony, there are inconsistencies regarding when and how she developed cervical spine problems.

At Hearing on January 28, 2019 (held approximately 13 years and 10 months after the alleged injury), Employee described two separate incidents at work that occurred over a two day period with quite a bit of detail. The first incident involved using a dolly to load boxes into her boss's car when the wheel got caught on a paver and started to tip onto her boss's new car. She testified she threw her right leg around it and did a "180 into the tree" and flipped on her back over onto the car. She denied falling to the ground, but claimed to have "immediate excruciating pain" in her neck. She testified that the next morning she had a friend pick her up in Vichy, Missouri because the pain was so bad she could not continue driving to work on her own. She testified that she had pain in her left arm at that time. She testified she told the friend, "Something's really wrong. It's scaring me." She testified the second incident occurred later that same day and involved retrieving boxes out of a mailbox when her left arm gave out.

The medical records admitted into evidence do not corroborate her testimony. The first record of any medical treatment following the alleged accident date of March 10, 2005 is not until April 5, 2005. On that date, the records show that Employee was seen at St. Mary's Belle Clinic. There is no documented complaint of neck or left shoulder pain. There is no reference to any incident at work. At her follow-up appointment on May 18, 2005 she complains of "increased pain" to her left shoulder, but again there is no mention of neck pain or any incidents at work. The first mention of any neck pain is not until May 26, 2005 during a pain management visit. At that time, she reports she has been off work since April 20, 2005. The first written documentation of any incident at work is not until June 30, 2005 (more than three months after her alleged accident date and after she was terminated from Employer) when she reports to St. Mary's Belle Clinic that she "was loading tubs and setting up tables and pulling sensation after carrying load of book." Further bringing into question Employee's chronology of events is reference to complaints of generalized pain to her left shoulder, neck and head at a doctor visit on February 15, 2005 which predates her alleged accident date by a little less than one month.

If Employee was having excruciating pain that was so bad it scared her, as she testified to at Hearing, I find it difficult to believe she would wait two months to report those symptoms to her medical provider, especially considering that she was actively treating for chronic lumbar pain at the time of her alleged onset of cervical pain.

Further, I find that Employee has added details and embellishments to her description of accident over the years that raises concerns regarding the reliability of her testimony. While it is

Page 21

**Injury No. 05-081024**

understandable that a claimant's memory may fade following the passage of time, Employee's recollection of events has become increasingly more specific starting with her initial claim of loading and unloading boxes of materials over the course of a week and ending with very specific detailed accident. At her deposition taken on January 20, 2006², Employee did not describe a specific accident, but instead described her symptoms as developing over a two week period of time. She testified to several events that caused or aggravated her symptoms. This testimony was incredibly difficult to follow and the chronology was different than what she offered at Hearing. At her deposition she testified that taking containers to the post office caused pain in her left shoulder then she described loading boxes with the dolly increased her shoulder pain and caused neck pain. Her deposition testimony did not include pertinent details included during her Hearing testimony such throwing her leg around the dolly to prevent it from hitting her boss's car, doing a "180 into the tree" and flipping on her back onto her boss's car. Also, the conversation she described having with her boss when she reported the injury is attributed to a different incident during her deposition as compared to her testimony at Hearing.

Employee initially reported to Dr. Koprivica on August 15, 2006 (1 ½ years post-accident) that she began having left sided neck and left shoulder pain loading and unloading materials to take to the Capitol the first week of March 2005. When she returned to Dr. Koprivica approximately six years later she described the dolly incident and the incident at the mailbox that she described at Hearing. There is no mention in Dr. Koprivica's report of the details included at Hearing- that she hit a tree and flipped on top of her boss's car. Based on Employee's additional history on June 7, 2011, Dr. Koprivica opined that Employee sustained an occupational disease due to a series of events at work that caused her neck pain, but that the dolly incident was the "last straw." However, Employee's testimony at Hearing was that her symptoms were caused by the dolly incident she described and that her symptoms continued to progress over the following weeks with her job activities. I find that Employee's testimony at Hearing regarding the cause of her neck pain (immediate excruciating pain following the dolly incident) is inconsistent with her expert's opinion that she developed neck pain as a result of a cumulative injury.

Employee also reported to Dr. Koprivica on June 7, 2011 that she thought she injured her right knee as a result of the same work activities, whereas she made no mention of injuring her right knee in her initial report to Dr. Koprivica on August 15, 2006. Employee's amended claim for compensation does not include the back or right knee as injured body parts and Dr. Koprivica did not conclude the back and right knee were causally related to the alleged work accident, but the fact that Employee later attributes more than her cervical problems to her alleged work accident suggests that her memories and impressions regarding her progression of symptoms with regard to her cervical spine, left shoulder, lumbar spine and right knee are not reliable. She not only reported to Dr. Koprivica her belief that her right knee problems are attributable to the work

² In her proposed award, Employee argues that Employee's deposition testimony cannot be used to impeach her Hearing testimony except for the portions of deposition testimony that she was specifically asked about at Hearing during cross-examination. The basis for Employee's argument is that the Second Injury Fund failed to lay a proper foundation because Employee was not given an opportunity to admit, deny, or explain her testimony. Employee cites several cases in support of this argument. However, Employee stipulated at trial to the admission of her prior deposition testimony. See SIF Exhibits 1 and 2. By stipulating to the admission of the prior depositions, she admitted to giving the prior sworn statements. Therefore, no further foundation was necessary. Further, Sup. Ct. R. 57.07, effective January 1, 2002, provides that "depositions may be used in court for any purpose."

Page 22

accident, but she testified at Hearing that the dolly incident caused three meniscus tears in her right knee. She also testified at deposition on April 2, 2010 that she was alleging her right knee was damaged as part of her work injury because she went down on her right knee when the dolly tipped on the curb and also at the mailbox incident she hyperextended her right knee. Her deposition testimony contradicts her testimony at Hearing that she did not fall to the ground during the dolly incident. These inconsistencies and contradictions not only cast doubt on Employee's reliability as a witness, but also on the credibility of her expert medical opinion. If Employee is to be believed (that she injured her right knee as a result of the dolly incident) then she discredits her own medical expert opinion that her right knee disability was not causally related to her work accident and this would certainly impact the Court's evaluation of Second Injury Fund liability.

Employee's testimony as a whole regarding her alleged accident of March 10, 2005 was confusing and was not timely corroborated by the medical record. For all the aforementioned reasons, I do not find Employee's testimony credible. Since Employee's medical expert, Dr. Koprivica, relied on Employee's history in reaching his medical causation opinion in this case, I further find that Employee has failed to submit competent, credible and reliable medical causation testimony from a physician into the record of evidence as well. I find that Employee failed to meet her burden of proof that she sustained an accident and/or occupational disease in the course of employment or that the alleged accident/occupational disease was causally related to her employment.

Since the ruling on the issues of accident and medical causation is dispositive of this case, the other remaining issues in this case are moot and will not be ruled on in this award. Employee's claim against the Second Injury Fund is denied.

Made by:

I certify that on 4-16-19 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.

By ______________________