Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and deposition, the vocational opinion and deposition, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, I find:
- **Claimant** is a 55-year-old, currently unemployed individual, who was working for Gate Gourmet, Inc. (Employer) as a truck driver on or about November 30, 2008. She worked for Employer for approximately 24 years, from 1984 to 2008, when she stopped working after her injury because Employer could not accommodate the restrictions placed on her by Dr. Coyle. Claimant testified that she was technically employed by Synergy for about a year after her 2008 injury, into 2018, basically being paid to provide home care for her aunt, but she has not worked anywhere else since 2008 because of the effects of all of her injuries/conditions.
- **Claimant** testified that she graduated from Normandy High School in 1982. She also took classes for one year at Florissant Valley Community College for an associate's degree in childcare after her release from the doctor in 2011. She has not had any other formal education.
- **Claimant** worked at McDonald's during high school, and, otherwise, has spent the rest of her working career at Gate Gourmet, Inc. (Employer). Claimant worked for Employer as a utility worker, preparing meals for airline flights, and, then, also as a truck driver. She worked full time, 40 hours per week, plus overtime, on a regular basis for Employer.
- **Claimant** testified that she suffered her first injury at work in 2005. She said that she hurt her neck when she was loading airplanes with 40-pound carriers with bottled water in them. She said that she received treatment and surgery from Dr. Lange. She had complaints across her neck and into her shoulders, with numbness, tingling and a heavy feeling into the arm.
- **Medical treatment records** from St. Louis Orthopedic, Inc. (Exhibit 1) document the treatment she received from Dr. David Lange in 2005. At her first visit on June 20, 2005, Claimant reported a three-month history of neck pain going into her right shoulder, severe headaches, and right arm numbness going into her hand. The report indicated that she had had diagnostic studies that showed right carpal tunnel syndrome. Dr. Lange diagnosed Claimant with a significant degenerative disc at C5-C6, with right C6 radiculopathy, for which he recommended surgery. Dr. Lange took Claimant to surgery at DePaul Health Center on July 8, 2005. He performed a decompression of the right C6 nerve root, partial vertebrectomy at C5 and C6, anterior fusion at C5-C6, placement of VG-2 implant at C5-C6 and placement of anterior UNIPLATE at C5-C6, to treat Claimant's degenerative C5-C6 disc, right C6 radiculopathy, congenital failure of segmentation at C4-C5 and cervical stenosis at C5-C6. Following surgery, she reported complete relief of the numbness in her right
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arm, but ongoing neck aching. By October 6, 2005, she had some aching in the right trapezius area with lifting and negligible right arm symptoms. Dr. Lange gave her a note to keep her off work until November 1, but, otherwise, released her from care for her neck at that visit.
6) Claimant testified that she returned to the same job, full duty, without any permanent restrictions from the doctor for her neck, but was more cautious, and self-limited her activities to avoid aggravating her neck. She said that she missed work after the injury and estimated an additional week off work over time because of neck complaints. Claimant said that she would ask coworkers for help with lifting and she was slower than before the injury. She also noted that she stopped bowling and playing tennis after her neck surgery.
7) Although Claimant, initially, believed that she entered into a compromise lump sum settlement to resolve this case under the Missouri Workers' Compensation Act, a review of her prior files reveals no such neck claim or settlement from 2005.
8) Claimant did have a prior right wrist carpal tunnel syndrome claim in 2005, for which she had right carpal tunnel surgery. She said that she had swelling and aching in the hand, and she noted ongoing weakness in the hand following the surgery. She admitted that she had no permanent restrictions from a doctor, for the right hand after the surgery, but she was just careful with how she would use the hand.
9) Claimant and Employer resolved the April 2, 2005 injury (Injury Number 05-072472) by Stipulation for Compromise Settlement (Exhibit 14) for the payment of $11,552.65, or 17.5% permanent partial disability of the right hand/wrist and 2 weeks of disfigurement. This Stipulation was approved by Chief Administrative Law Judge Edwin J. Kohner on November 1, 2006.
10) According to the records of the Missouri Division of Workers' Compensation, Claimant's only other prior reported injury was a March 24, 2007 injury to her left lower leg. She apparently leaned into the cart with her left leg to keep the cart from falling, and felt pain in the left leg. The case was closed with only a minimal amount of medical paid and no settlement documenting any permanent partial disability as a result of the injury. In fact, Claimant admitted that she had no continuing problems with her left leg.
11) Claimant testified that between 2005 and 2008, as she continued to work for Employer, she would get help with loading the trucks and help with lifting some of the heavy items, like carriers with water or soda in them.
12) Claimant testified that on or about November 30, 2008, she suffered another injury to her neck while working for Employer. Claimant said that she was unloading a cabinet that weighed approximately 30 pounds from a compartment on the plane above her shoulders, when she developed a sharp pain between her shoulder blades and into her neck. She said that she knew she had hurt herself and she reported the injury to her supervisor. Employer sent her for medical treatment for her neck injury.
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13) Claimant received initial medical treatment for her injury at BarnesCare Westport (Exhibit 2) on December 3, 2008. The report indicates a consistent history of working with a carrier overhead, when she felt pain to the right side of her neck and posterior shoulder, which also radiates to the left shoulder and down her upper back. She said her right arm felt "heavy" and she reported her prior neck fusion surgery. She was diagnosed with a neck sprain and sprain of the right thoracic region. She was prescribed physical therapy, medications and work restrictions. When Claimant continued to report complaints in her neck and into her arms, on December 10, 2008, she was referred to a qualified orthopedic surgeon for an evaluation and decision on further treatment.
14) Claimant, next, came under the care of Dr. David Raskas at St. Louis Spine Care Alliance (Exhibit 3) on December 19, 2008. Claimant provided a consistent history of injury and of her continued complaints in the neck, right arm and, now, left arm. Dr. Raskas recommended continued light duty, medications, and an MRI of the cervical spine to further evaluate her neck condition. Claimant had the MRI on January 13, 2009, which showed a cervical disc herniation at C6-7, causing cervical radiculopathy. Dr. Raskas opined that the injury on November 30, 2008 was the prevailing factor in the cause of the C6-7 disc herniation, and her need for treatment for the cervical radiculopathy. He recommended a cervical epidural injection and ongoing work restrictions.
15) Dr. Patricia Hurford (Exhibit 3) administered the cervical epidural steroid injection under fluoroscopic guidance on February 24, 2009. Claimant reported that the injection did not help, so Dr. Raskas, on March 11, 2009, recommended selective nerve root blocks on the right at C7 and on the right at C4. Dr. Hurford administered the right C4 selective nerve root injections under fluoroscopic guidance on March 17, 2009 and March 31, 2009. Again, Claimant reported no relief from the injections. On April 8, 2009, Dr. Raskas recommended an EMG/nerve conduction study and Functional Capacity Evaluation (FCE) to try to get further clarity on the source of her continued complaints.
16) The Functional Capacity Evaluation (FCE) was performed at The Work Center, Inc. (Exhibit 7) on April 14, 2009. It showed she provided near full maximal effort throughout the evaluation. She was found to be capable of performing in the sedentary and some light-work demand level by lifting 20 pounds from floor to waist and 10 pounds overhead. It was noted that this did not meet the required demand for her usual and customary work as a truck driver. It was suggested that she seek a position that did not require her to lift greater than 10 pounds on an occasional basis with limited walking.
17) Dr. Hurford (Exhibit 3) performed the electrodiagnostic testing on April 22, 2009, which showed no evidence to support cervical radiculopathy, brachial plexopathy, thoracic outlet syndrome or peripheral neuropathy. Dr. Raskas noted, on that same date, that her FCE showed good effort, but she was only capable of doing lighter sedentary type activity. He ordered a myelogram CAT scan to see if more surgery
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might be of benefit to her condition. On May 6, 2009, Dr. David Raskas read the CAT scan as showing significant spinal cord compression at C6-7 from the herniation at that level. He recommended surgery to address the condition and, once again, medically causally related the disc herniation and need for surgery to the November 30, 2008 work injury.
18) At this point, on May 26, 2009, Employer/Insurer sent Claimant back to Dr. David Lange at St. Louis Orthopedic, Inc. (Exhibit 4) for a second opinion independent spine evaluation. Dr. Lange diagnosed myeloradiculopathy due to a herniation at C6-7, which he medically causally related to the work injury of November 30, 2008. He explained why the work injury was the prevailing factor in the diagnosis and need for surgery, and not the pre-existing degenerative changes in the spine (congenital fusion at C4-5 and prior surgical fusion at C5-6).
19) Dr. David Lange (Exhibit 4) took Claimant back to surgery at DePaul Health Center on August 7, 2009. He performed a decompression of the right C7 nerve root, anterior cervical fusion at C6-7, removal of the old DePuy UNIPLATE at C5-6, placement of interbody implants at C6-7 and placement of an anterior DePuy UNIPLATE at C6-7, to treat Claimant's herniated C6-7 disc, right C7 radiculopathy and retained anterior spinal plate at C5-6.
20) As Claimant continued to follow-up with Dr. Lange (Exhibit 4) postoperatively, she reported gradual decreasing of her neck and arm complaints until November 17, 2009, when she, again, noted neck aching and complaints into her arms. There are references, following the surgery, to the lower screw crossing the caudal endplate of the C7 vertebral body, with Dr. Lange explaining that he had some trouble during surgery visualizing where to insert the screw. Dr. Lange noted that the fusion was still not solid as of November 17, 2009, so it was not unexpected to have residual symptoms. He recommended continued time for healing. When she continued to complain of neck and bilateral arm complaints, Dr. Lange suggested additional testing and/or removal of the hardware, if they could see that the fusion was solid.
21) Medical treatment records from PRORehab (Exhibit 8) document the physical therapy Claimant attended at that facility from March 25, 2010 to July 2, 2010. The records seem to document some improvement in her condition during the therapy, but by July 1, 2010, she noted ongoing neck pain and throbbing on the right side of the neck, with aggravation of her neck complaints while doing computer work for the classes she is taking or carrying a full load of laundry. The records also document a Functional Capacity Evaluation (FCE) taken on June 30, 2010. The report notes that Claimant provided a fair effort, but she was self-limiting and had high subjective pain complaints, so the results showed what she was willing to tolerate, but not, perhaps, what her maximum capacity is. They concluded that she was able to safely function in the light-work demand level, but final disposition (restrictions) should be determined by a physician.
22) On April 26, 2010, Claimant reported being more active and feeling "stronger" from the physical therapy she attended (Exhibit 4). On June 7, 2010, she was, again, doing
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somewhat better, but still with some paresthesias in the upper extremities. He ordered another FCE and more physical therapy. When Claimant was last examined by Dr. Lange on July 6, 2010, her complaints were, essentially, the same in the neck and the arms. He believed Claimant was capable of, at least, a trial back to work at her usual full-duty job. He recommended a final check in 60 days, but said that she showed no interest in pursuing the hardware removal.
23) Claimant testified that this second surgery from Dr. Lange did not help her complaints, so she was sent to Dr. James Coyle (Exhibit 5) for an evaluation and determination on the need for treatment. Dr. Coyle first examined Claimant on September 15, 2010. Claimant provided a consistent history of injury and of ongoing complaints in the neck and both arms. Dr. Coyle noted the presence of a congenital fusion at C4-5, a solid fusion at C5-6 and, most likely, a nonunion at C6-7. He diagnosed a pseudoarthrosis at C6-7 and recommended additional diagnostic tests, and an evaluation by an ear, nose and throat specialist before considering more surgery. He also noted the lower screw in the C7-T1 disc space and the need to evaluate the integrity of the disc at that level. Ultimately, Dr. Coyle recommended more surgery to address her ongoing issues, and he medically causally related the diagnoses and need for that surgery to the November 30, 2008 work injury.
24) Dr. Coyle took Claimant to surgery at the St. Louis Spine Surgery Center (Exhibit 5) on November 18, 2010. He performed removal of the anterior cervical instrumentation at C6-7, exploration of the pseudoarthrosis with removal of the interbody fusion cage and partial vertebrectomy at C6 and C7, anterior interbody arthrosis at C6-7 with Synthes machined allograft spacer, Infuse bone morphogenic protein and anterior cervical plate. Claimant continued to follow-up with Dr. Coyle after surgery, reporting decreasing neck pain, but some residual numbness in the arms. With the fusion consolidating nicely, he felt it appropriate to remove the anterior cervical plate. On February 17, 2011, Dr. Coyle took Claimant back to surgery to remove the anterior instrumentation at C6-7. On March 30, 2011, Claimant was doing well with a consolidated fusion, but some ongoing neck and arm complaints. He referred Claimant for a course of physical therapy and noted work restrictions of no overhead work, no lifting over 20 pounds and avoiding impact activities. By May 10, 2011, Dr. Coyle noted that she had a solid fusion from C4 through C7 and that her upper extremity dysesthesia was referable to C5-6. She had good strength and about 60% of normal range of motion in the neck. Dr. Coyle placed Claimant at maximum medical improvement and suggested a functional capacity evaluation to establish work limitations for her.
25) Claimant attended the Functional Capacity Evaluation at PRORehab (Exhibit 8) on May 31, 2011. The findings and commentary from the evaluator is remarkably similar to the prior FCE taken June 30, 2010. Claimant, again, provided a fair effort, but she was self-limiting and had high subjective pain complaints, so the results showed what she was willing to tolerate, but not, perhaps, what her true work capacity is at this time. They concluded that she was able to safely function in the light-work demand level, but final disposition (restrictions) should be determined by a physician.
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26) In a report dated June 7, 2011, Dr. Coyle noted that he reviewed the FCE from May 31, 2011. He referenced the evaluator's impression that Claimant was self-limiting/guarding making it difficult to determine her true capacity. It was felt that Claimant could safely function in, at least, the light-work demand level. Dr. Coyle placed a permanent lifting restriction on her of 20 pounds, and no pushing or pulling greater than 44 pounds.
27) Claimant testified that she continues to see her primary care physician for medications to treat her ongoing complaints. Medical treatment records of SSM/DePaul Medical Group at Cross Keys (Exhibit 6) document Claimant's visits and treatment there from December 6, 2011 through September 2, 2013. The records show a number of visits during that time for chronic neck pain, for which the doctor prescribed medications. In addition to other various conditions for which Claimant treated, on August 20, 2013, Claimant also complained of numbness in her right leg, which prompted lumbar spine x-rays the next day. The lumbar spine x-rays revealed moderate facet hypertrophy at the lower levels, but no significant loss of disc height. At that same visit, Claimant noted ongoing, occasional numbness in her arms since her neck surgery.
28) Claimant testified that while treating for her neck, and after her release by Dr. Coyle, she took classes at Florissant Valley Community College toward a degree in childcare. Claimant's Transcript from St. Louis Community College (Exhibit 9) shows that she originally took classes from Fall 1982 through Spring 1984 in general courses like algebra, college writing and psychology, just to name a few. Then, in Spring 2010 through Spring 2012, Claimant took classes in childcare, development and education, culminating in an Associate's Degree in Applied Science and Certificate of Proficiency in Early Care & Education, which were awarded on May 18, 2012. She had a cumulative GPA of 2.63 on a 4.0 scale.
29) Claimant and Employer resolved this November 30, 2008 injury (Injury Number 08-108467) by Stipulation for Compromise Settlement (Exhibit 11) for the payment of $71,510.40, or 45% permanent partial disability of the body as a whole referable to the neck. The Second Injury Fund Claim was left open on the Stipulation. This Stipulation was approved by Chief Administrative Law Judge Lee B. Schaefer on September 22, 2014.
30) Claimant testified that for a period of about a year, from 2017 into 2018, she helped out her aunt, while the aunt was living at home, with basic household chores, like cooking, laundry and small tasks. She said that she was able to do this for her aunt because she worked at her own pace and sat down regularly. She said that she was paid as a home care attendant, at the request of her aunt, by Synergy HomeCare. Claimant estimated that she might spend as much as four hours a day as a companion for her aunt. Claimant testified that she applied to Synergy to take care of her aunt, but her aunt put the wheels in motion by telling Synergy she wanted Claimant to be paid for taking care of her. Claimant said that Synergy was doing her aunt a favor, by having Claimant get paid for taking care of her. Claimant had no other income since 2008, and the small amount she got for taking care of the aunt helped with the bills.
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She confirmed it was not a competitive process and she has not cared for anyone else for Synergy besides her aunt. However, she noted that she did help take care of her mom when she had cancer, but she was not paid, she just took care of her because it was her mom. She said that she is not employed by them anymore. However, she still visits her aunt, and her aunt will give her some money occasionally, but she is not employed.
31) The Care Plan from Synergy HomeCare (Exhibit 10) documents the general home care items to be accomplished each day with the client. It includes things like taking out the garbage, doing laundry, cooking, cleaning and personal care items.
32) In terms of current complaints, Claimant testified that she continues to have constant, throbbing pain in the neck, especially with moving the neck or lifting. She still has numbness and tingling in her arms, and she said that her hands/arms feel heavy. She said that she wakes up with numbness in her arms depending on how she is laying. She reported being nauseous, at times, when she gets pain in the neck. She said that she cannot pick up a full laundry basket and she cannot even do all the grocery shopping at one time because of her complaints. Claimant noted that she lays down, usually twice a day, for a half an hour at a time, and rests to relieve her complaints, as well as takes over-the-counter medications or medications from her doctor. She said that moving at her own pace helps. She noted that the location of the complaints is about the same as prior to 2008, but it is more intense now.
33) The deposition of Dr. Shawn Berkin (Exhibit 12) was taken on May 30, 2018 by Claimant to make his opinions in this case admissible at trial. Dr. Berkin is a board-certified osteopathic family physician, who is also board certified as an independent medical examiner. He examined Claimant on two occasions, August 23, 2011 and April 11, 2018, for the purpose of independent medical examinations at the request of Claimant's attorney. He provided no treatment. Dr. Berkin issued his reports in this case on October 28, 2011 and April 11, 2018, after his review of the medical treatment records and after performing physical examinations of Claimant. He testified consistent with the contents of his two reports. Dr. Berkin took a consistent history of the injury at work on November 30, 2008 and of Claimant's medical treatment and complaints following that injury, as well as of Claimant's pre-existing conditions/injuries and complaints. His physical examination of Claimant on August 23, 2011, revealed tenderness to palpation and lost range of motion in the neck, but no trigger points or muscle spasms; normal muscle bulk and tone in the upper extremities, but decreased sensation over the lateral surface of the right upper arm; and a normal right wrist examination, except for the surgical scar and tenderness.
34) In his report dated October 28, 2011, Dr. Berkin opined that the work injury on November 30, 2008 was the prevailing factor in causing the cervical strain with right-sided radiculopathy and the herniated disc at C6-7, as well as her treatment and need for surgery. Medically causally related to the work injury on November 30, 2008, Dr. Berkin diagnosed a cervical strain with right-sided radiculopathy; a herniated cervical disc at C6-7; status post C6-7 discectomy, decompression of the right C7 nerve root and anterior cervical fusion with interbody implants and plating (including removal of
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the old plate at C5-6); pseudoarthrosis of the C6-7 cervical fusion; status post removal of surgical instrumentation, exploration of pseudoarthrosis and revision anterior interbody fusion; and, finally, status post removal of anterior instrumentation at C6-7. He rated Claimant as having 42.5% permanent partial disability of the body as a whole referable to the cervical spine on account of the November 30, 2008 injury and subsequent treatment. Pre-existing the November 30, 2008 work injury, Dr. Berkin diagnosed and rated 30% of the body as a whole referable to the cervical spine for her prior cervical condition, and 30% of the right wrist for the prior right carpal tunnel syndrome. He opined that the pre-existing disabilities represented a hindrance or obstacle to employment, and that the combination of the disabilities is significantly greater than their simple sum, so a loading factor should be applied. He offered some treatment recommendations, and some work restrictions, including limiting lifting to 35 pounds on an occasional basis and 25 pounds on a frequent basis, limiting pushing and pulling to 35-40 pounds, no lifting with her arms extended from her body, or lifting or working above shoulder level, and no forceful gripping, squeezing, pinching, pulling or twisting with the right hand/wrist. He also suggested her need to pace herself and take frequent breaks to minimize her symptoms.
35) Dr. Berkin examined Claimant a second time, on April 11, 2018, to assess her current clinical state, apparently because of the passage of time since his first examination. Claimant provided additional history that in June 2017, she started working for Synergy, a home health care agency, working two hours a day, taking care of her aunt in her home. She reported that her neck complaints were the same as her prior examination, including throbbing pain all the time, limited motion, and increased symptoms with lifting or performing activities. The results of her physical examination were similar to the prior examination, except for a new finding of palpable spasm in the neck, and a normal sensory examination in the upper extremities. Dr. Berkin's diagnoses regarding the November 30, 2008 injury remained the same. Pre-existing that work injury, he, more specifically, diagnosed a congenital cervical fusion at C4-5, a herniated disc at C5-6 and right carpal tunnel syndrome. Dr. Berkin's ratings of disability for the primary and pre-existing conditions remained unchanged from his initial report. Dr. Berkin provided a more detailed explanation in his second report on how the synergistic effect is based on the additional limitations imposed by the combination of the disabilities that are over and above the limitations and loss of function due to the disabilities considered separately. He, again, offered treatment recommendations and work restrictions. However, the work restrictions were changed to limiting lifting to 20-25 pounds on an occasional basis and 15 pounds on a frequent basis, and limiting pushing and pulling to 35 pounds, while keeping the rest of the restrictions, basically, the same.
36) On cross-examination, Dr. Berkin admitted that after her initial neck surgery in 2005, Claimant did have pain in the neck, but she went back to work without limitations. She had symptoms but she was able to work through it. As far as the change in the work limitations he placed on Claimant between his two reports, Dr. Berkin indicated that, overall, his recommendations were about the same. He did not think a 5 or 10-pound difference was that significant, and suggested that maybe he lowered the
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numbers a bit because she was a little bit older. He confirmed that her lifting restrictions were due to the disabilities in the neck and right upper extremity.
37) The deposition of Mr. J. Stephen Dolan (Exhibit 13) was taken on June 20, 2018 by Claimant to make his opinions in this case admissible at trial. Mr. Dolan is a certified vocational rehabilitation counselor. He evaluated Claimant at her attorney's request on November 1, 2012 to determine whether Claimant was able to be employed in the open labor market. He reviewed the extensive medical treatment records and the medical opinions in the course of his evaluation. He issued a report dated December 4, 2012, and he testified consistent with that report. Mr. Dolan characterized Claimant as having an excellent work history, with a proven track record of hard work and of being motivated to work. He noted her work restrictions imposed by Dr. Coyle and Dr. Berkin (from his first report in 2011), and also took a detailed listing of her own description of her limitations. Claimant's description of her daily activities seemed consistent with her description of her limitations. She said that she has to lie down every afternoon to ease the pressure on her neck, and she also described how she was able to tolerate going to school because it was not all day, every day. She noted that about twice a month she had to miss class or leave early because of neck pain. Mr. Dolan indicated that all of her vocational test results revealed achievement levels in reading, spelling and math below the average range for her age. He questioned how she earned an associate's degree with these scores, but noted it was in childcare. In terms of transferable skills, Mr. Dolan opined that Claimant had commercial driving skills that would transfer to other commercial driving jobs, and in his report he referenced childcare skills she was recently trained in. However, her restrictions prevent her from using those skills. Based on Claimant's education, work experience, academic skills, work skills, and Dr. Berkin's permanent restrictions, Mr. Dolan opined that Claimant is unable to perform any employment in the open labor market, and, further, that no employer in the usual course of business could reasonably be expected to hire Claimant in her present physical condition.
38) Mr. Dolan issued a couple of supplemental reports after his receipt and review of additional materials. After reviewing her community college transcript, the Care Plan and Activities Form from Synergy HomeCare and the updated report from Dr. Berkin, Mr. Dolan wrote letters dated May 10, 2013, March 8, 2018 and May 1, 2018, in which he indicated that this new information did not change any of his previously stated opinions. He did not believe Claimant was capable of tolerating full-time competitive employment. With regard to the part-time work (two hours per day) taking care of her aunt for Synergy, Mr. Dolan testified that he was a little bit surprised that she was able to do that, but it was only two hours a day and taking care of a relative, so it was not full-time or competitive employment.
39) On cross-examination, Mr. Dolan admitted that Dr. Berkin did not opine Claimant was permanently and totally disabled from a medical standpoint, but he placed vocational restrictions on her that no employer in the normal course of business is going to allow, such as taking a break whenever she needs to do so. Mr. Dolan confirmed that the need for breaks was to keep her neck pain under control. With regard to Claimant's work taking care of her aunt for Synergy, Mr. Dolan testified that
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he did not know exactly how she was hired for that, but from his experience in the home care field, the standard is that the client (the aunt) would pick their own provider so the agency does not have to find someone.
40) On cross-examination by the Second Injury Fund, Claimant testified that she tried to apply for a childcare job after she stopped working for Employer, but she had to be able to pick up the kids, and she could not do that, so she did not get the job. She admitted that she also now has low back pain that limits her walking, but denied having any treatment for it prior to 2008. She noted that the low back pain started when caring for her aunt. She has borderline diabetes and, perhaps, neuropathy, but denied memory of a right foot injury in 2013, as well as denied having any problems with her right or left feet.
RULINGS OF LAW:
Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and deposition, the vocational opinion and deposition, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, and based upon the applicable laws of the State of Missouri, I find:
There is no dispute in this case, and parties have agreed, that on November 30, 2008, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in an injury to her cervical spine. I find that Claimant was working as a truck driver for Employer and was unloading a cabinet that weighed approximately 30 pounds from a compartment on the airplane above her shoulders, when she developed a sharp pain between her shoulder blades and into her neck. Medically causally related to this November 30, 2008 work injury, I find that Claimant sustained a cervical strain with right-sided radiculopathy; a herniated cervical disc at C6-7; status post C6-7 discectomy, decompression of the right C7 nerve root and anterior cervical fusion with interbody implants and plating (including removal of the old plate at C5-6); pseudoarthrosis of the C6-7 cervical fusion; status post removal of surgical instrumentation, exploration of pseudoarthrosis and revision anterior interbody fusion; and, finally, status post removal of anterior instrumentation at C6-7. Consistent with the medical treatment records in evidence and the opinions of Drs. Lange, Coyle and Berkin, I find that the November 30, 2008 work injury was the prevailing factor in the development of these diagnoses, Claimant's need for neck treatment and surgery, and, the resultant disability in the cervical spine.
Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "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."
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Claimant bears the burden of proof on all essential elements of her Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). Claimant must establish a causal connection between the accident and injury. *Id.* at 198. The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.
In a Workers' Compensation case, expert medical testimony is not necessarily needed to establish the cause of the injury, if causation is a matter within the understanding of laypersons. *Knipp v. Nordyne, Inc.*, 969 S.W.2d 236 (Mo. App. W.D. 1998) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). When the condition presented in a case is a sophisticated injury that requires surgical intervention or highly scientific technique for diagnosis, and especially when there is a serious question of pre-existing disability, then the proof of causation is not within the realm of lay understanding. *Id.* at 240.
As both issues in this case are so inter-related, I will address both of them together in the same section of the Award.