Kenna Morris v. Curators of the University of Missouri

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 12-079705

**Employee:** Kenna Morris

**Employer:** Curators of the University of Missouri (settled)

**Insurer:** Self Insured

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

In her award, the administrative law judge found that employee attended graduate school between May 2013 and July 2014. The record does not support that finding. Employee testified that she took some graduate level psychology courses for about a year "during a brief period of unemployment." Tr. p., 68. However, the record does not clarify exactly when that "brief period of unemployment" occurred.

Having clarified this point, and having carefully reviewed the evidence regarding employee's claim for permanent total disability, we do not discern a compelling reason to disturb the administrative law judge's findings that the opinions of Drs. Smith, Choma, and Chabot were persuasive and that employee was at maximum medical improvement regarding her work-related injuries and able to return to work without restrictions by May 26, 2016. Any other limitations of employee's ability to work were not due to work-related injuries, but other factors.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Melodie A. Powell is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

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Given at Jefferson City, State of Missouri, this 3rd day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 12-079705

Employee: Kenna Morris

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

I agree with the majority that the record does not support a finding that employee attended graduate school between May 2013 and July 2014. However, I find more persuasive the opinions of Dr. Raymond Cohen and Ms. Kristine Skahan that employee is permanently and totally disabled. "The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition." *Treasurer v. Cook*, 323 S.W.3d 105, 110 (Mo. App. 2010).

Based off of Dr. Cohen's restrictions, Ms. Skahan's vocational rehabilitation assessment, and employee's work history subsequent to the October 11, 2012 injury, I do not feel that any employer would reasonably be expected to hire employee. Dr. Cohen placed employee on the following restrictions:

> In regard to the lumbar spine, she needs to be restricted from any repetitive bending, lifting, or stooping; no lifting greater than 10 pounds except on a rare occasion; no walking greater than 20 minutes without being allowed to stop and rest; no sitting greater than 30 minutes without being allowed to take a change of position break; no standing greater than 30 minutes without the change of position break[;] and no climbing or ladder work.

*Tr., p. 2177.*

Ms. Skahan observed employee; looked at the medical records, including the records of Drs. Smith, Choma, and Chabot; and the independent medical evaluation of Dr. Cohen. Ultimately, Ms. Skahan found employee to be permanently and totally disabled, but not just because of Dr. Cohen's restrictions. Ms. Skahan noted that, given employee's work history, "[t]he restrictions outlined by Dr. Cohen and his 2/13/17 report eliminate all work at all levels." *Tr., p. 2272.* In her report, Ms. Skahan also stated,

> The following factors, conditions and characteristics will affect this worker's ability to access and to compete in the open competitive labor market. While [employee] does have a college degree, she has only worked in the service industry and in light to very heavy jobs. She has no transferable skills to sedentary, limited computer and office skills, and has not had any jobs that require extensive use of a computer. She has minimal typing skills and no experience with sedentary office type work that would familiarize her with office processes and procedures. [Employee] does not possess the vocational profile that would [be] sought by an employer seeking candidates for a sedentary office type position. [Employee] did work in an accommodated office position for a short period

Injury No.: 12-079705

Employee: Kenna Morris

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of time with the University of Missouri, but was only operating a radio to dispatch and spent the other half of her day on the floor. She would not have acquired skills from this accommodated position.

Tr., p. 2272. In her deposition, Ms. Skahan further indicated that employee was not an applicant for retraining. She stated,

> ... I'm looking at what she can physically do based on Cohen's restrictions, which are pretty consistent with her complaints, I don't think she could go back to school because of the things with the upper extremity and the back issues of sitting and standing and my observations of her -- of her describing this as a typical day for her. Those are the things I think would get in the way of her.

Tr., p. 2234-35.

Employee's work history also supports a conclusion that employee was not able to continue working full-time after the October 11, 2012 injury. Employee lost employment after her positions became too physically demanding. In an effort to retain her pharmacy technician position with Walgreens, employee had to reduce her hours. However, she lost that position after her absence from work due to her stroke. No employer would be reasonably expected to hire employee given her present physical condition in not being able to work more than thirty hours a week in a low to moderately-physical position.

In addition, no one accused employee of malingering. The administrative law judge did not find employee not credible. I find that employee met her burden to establish permanent and total disability. The Second Injury Fund did not present its own vocational expert to show that employee was not permanently and totally disabled.

Therefore, I would modify the administrative law judge's award allowing benefits and find employee permanently and totally disabled. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Kenna Morris

Injury No. 12-079705

Dependents: N/A

Employer: Curators of the University of Missouri (settled)

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 11, 2012
5. State location where accident occurred or occupational disease was contracted: Boone County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Pushing a patient in a wheel chair
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: thoracic spine and right shoulder
14. Nature and extent of any permanent disability: 5\% BAW \& 21.8 % shoulder (settlement with Employer)
15. Compensation paid to-date for temporary disability: $\ 686.64
16. Value necessary medical aid paid to date by employer/insurer? $\ 37,037.00

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 514.98
3. Weekly compensation rate: $\ 343.32
4. Method wages computation: By agreement

1. Amount of compensation payable: $\ 7,082.69 from SIF

TOTAL:

1. Second Injury Fund liability: $\ 7,082.69
2. Future Requirements Awarded: N/A

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of Christine Kiefer.

Employee: Kenna Morris

Injury No: 12-079705

EHIDINGS OF FACT and RULINGS OF LAW:

Employee: Kenna Morris

Injury No: 12-079705

Dependents: N/A

Employer: Curators of the University of Missouri (settled)

Additional Party: Second Injury Fund

Insurer: Self Insured

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MAP/sb

On the $17^{\text {th }}$ day of July, 2018, the parties appeared before the undersigned Administrative Law Judge for final hearing on Claimant's claim against the Second Injury Fund. Claimant appeared in person and by her attorney, Christine Kiefer. The Second Injury Fund appeared by Erika Eliason.

The parties entered into a stipulation with regard to certain facts which are not at issue in this claim as follows: on or about the $11^{\text {th }}$ day of October, 2012, Claimant was in the employ of the Curators of the University of Missouri and sustained an injury by accident or occupational disease arising out of and in the course of employment. Both the employee and employer were operating under and subject to the terms and provisions of the Missouri Workers' Compensation law. The employer's liability was fully self-insured. The employer had notice of the claim and a claim for compensation was timely filed. The accident occurred in Boone County, therefore, venue was proper in Columbia, Missouri. The Claimant's average weekly wage is $\ 514.98 and the compensation rate is $\ 343.32. Temporary total disability benefits have been paid in the amount of $\ 686.64, representing two weeks, and medical has been paid in the amount of $\ 37,037.00. Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

The following exhibits were admitted, without objection, on behalf of the Claimant:

Exhibit 1 University of Missouri Health Care, Dr. Welsh

Exhibit 2 Green Meadows Clinic, Dr. Swenson

Exhibit 3 University of Missouri Health Care, Dr. Choma

Exhibit 4 University of Missouri Health Care, Dr. Choma

Exhibit 5 University of Missouri Health Care, Dr. Choma

Exhibit 6 University of Missouri Health Care, Dr. Cook

Exhibit 7 University of Missouri Health Care

Exhibit 8 University of Missouri Health Care, Dr. Varghese

**Employee:** Kenna Morris

**Injury No.:** 12-079705

The Second Injury Fund offered no exhibits.

The issues to be determined are as follows:

1. Liability of the Second Injury Fund for permanent total disability or permanent partial disability.

Claimant Kenna Morris, 58 years old, worked for the University of Missouri Hospital from July 2009 through May 2013 as a Hospitality Coordinator. Her duties included greeting patients, taking care of patients' personal belongings, pushing patients in wheelchairs, and running errands for any of the medical staff. Claimant resigned her employment with the University of Missouri Hospital in May 2013 because her department was merged with the transport department in late Fall 2012. Her job had become more physically demanding and she had difficulty pushing hospital beds and patients due to her low back and right shoulder.

Between May 2013 and July 2014, Claimant did not work. She did take some classes towards her masters' degree in psychology.

In July 2014, Claimant began work at Walgreens. Initially, she was a Wellness Guide. Her duties included retrieving stock from inventory, stocking various products in the medical aisles, and answering customers' questions. She was on her feet quite a bit. She subsequently became a Pharmacy Technician which was a less physical job. She would check people in and out, work the drive-through window, put prescription information into the computer, stock medicines and fill prescriptions for the pharmacist to check.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenna Morris

Injury No. 12-079705

Claimant was off work at Walgreens as of September 1, 2016, due to having had a subarachnoid hemorrhage or what she described as "a stroke". Walgreens ultimately terminated her employment because she was unable to work for a time after the subarachnoid hemorrhage; termination was made retroactive to August 31, 2016. She attempted to return to work at Walgreens in January 2017 as regular floor labor, which involved a lot of cleaning and stocking. She could not perform the job due to her back and shoulder.

Claimant has, essentially, not worked since August 31, 2016. While she has looked for work and had interviews, she has not been hired.

Claimant has an undergraduate degree in psychology, obtained in 1988. She is approximately one year shy of having her masters' degree in psychology.

Claimant's prior employment included working in the purchasing department at a coal mine, owning a bakery from 2002-2007, doing construction work, and working as a delivery coordinator at Menard's.

WORK RELATED ACCIDENTS

Claimant has had three work-related injuries while employed by the University of Missouri Hospital.

On April 28, 2010, she injured her right ankle; the claim resulted in a settlement of 5% of the ankle.

On March 20, 2011, Claimant sustained injury to her back; the claim resulted in a settlement of 32% of the body as a whole, referable to the low back.

On October 11, 2012, Claimant was pushing a bariatric patient in a wheelchair. The patient's mother stepped in front of one of the wheels on the wheelchair. Claimant had to jerk the wheelchair sharply to the right. In doing so, she felt a sharp burn across her upper back and right shoulder. The claim settled for 5% body as a whole, referable to the thoracic spine and 21.8% of the shoulder.

Claimant alleges that the last injury (2012) combines with the injuries of April 28, 2010, and March 20, 2011, to cause her to be permanently and totally disabled. In the alternative, Claimant alleges additional permanent partial disability as a result of the synergistic effect of the three distinct injuries.

SUBSEQUENT INJURIES

On September 1, 2016, Claimant had a subarachnoid hemorrhage. She was admitted to the hospital for approximately six days and missed sufficient enough time from work that Walgreens filled her position as pharmacy tech and terminated her employment. She had vision therapy as a result of the subarachnoid hemorrhage but believes her condition has resolved.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenna Morris

Injury No. 12-079705

On December 31, 2017, Claimant fractured her wrist. She had surgery, consisting of open reduction, internal fixation and, as of the date of the hearing, was continuing to recover. She has problems with writing, typing, and gripping.

TREATMENT CHRONOLOGY

Claimant has had a protracted course of treatment for both the low back injury of March 20, 2011, and the shoulder/thoracic spine injury of October 11, 2012. Treatment for the two conditions has overlapped. A timeline of her treatment is helpful in understanding Claimant's medical conditions.

For the ankle injury of April 28, 2010, there are only two entries in the medical records. Exhibit 1 has a record from University of Missouri Health Care referencing an ankle x-ray on April 28, 2010, showing no fracture or dislocation. Exhibit 3 has a June 14, 2012, record from Family Medicine, University of Missouri Health Care, indicating some right ankle weakness and pain.

With regard to the injury of March 20, 2011, Claimant began treating with Dr. Komes on April 5, 2011. A history was given by Claimant, indicating she had a work-related injury on March 20, 2011, when she was walking up a set of stairs and fell, injuring her back. Complaints included low back pain on the right side, radiating to the right hip, thigh, and outside of the lower leg into the dorsum of the foot with numbness in two toes. The diagnosis was lumbar sprain and right hip pain. Physical therapy was prescribed and Claimant was placed on light duty. She continued to treat with Dr. Komes through July 19, 2011. An MRI was performed on July 14, 2011, and Dr. Komes interpreted it to show abnormalities but with no effacement of the nerve root.

Claimant saw Dr. Miles, Columbia Orthopaedic Group, for a second opinion on August 9, 2011. He recommended an EMG (which was normal) and possible epidural steroid injections. She was then referred to pain management doctors at University of Missouri Health Care for injections. The injections did not provide any long term relief. Claimant saw Dr. Miles in follow up on December 2, 2011, and he ordered a Functional Capacity Evaluation (FCE). Based on the results of the FCE, Claimant fit the medium category of work. After the FCE, Dr. Miles released her at maximum medical improvement (MMI).

Claimant then saw Dr. Reinsel on January 6, 2012, with complaints of right-sided low back pain, burning right thigh pain, and lateral calf pain. Dr. Reinsel's impression was chronic pain with lower extremity radiculopathy. The possibility of a lumbar fusion was discussed.

Claimant's attorney referred her to Dr. Robson for an independent medical examination on April 5, 2012. It was Dr. Robson's opinion that Claimant needed a lumbar fusion at L4-5 as a result of the injury of March 20, 2011.

On March 27, 2012, and June 14, 2012, Claimant presented to the Family Medicine Clinic at University of Missouri Health Care with complaints of right leg, hip, and foot pain. Pain medication was prescribed.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenna Morris

Injury No. 12-079705

Based on the medical records, it does not appear that Claimant had treatment for any condition between June 14, 2012 and October 24, 2012.

Claimant saw Dr. Komes on October 24, 2012, for a new work injury involving her right shoulder and thoracic spine. She complained of pain at the shoulder, over the deltoid and biceps tendon. She also reported upper thoracic and lower cervical pain. Dr. Komes ordered an MRI of the shoulder. The MRI showed rotator cuff tendinopathy without full thickness tear, partial thickness tear of the supraspinatus, mild biceps tendinosis, mild subacromial bursitis and moderate acromioclavicular arthrosis. Claimant was then referred to an orthopedic physician at University of Missouri Health Care, Dr. Smith.

Dr. Smith provided treatment for Claimant's shoulder from November 27, 2012, through June 3, 2013. Treatment included injections and physical therapy. A second MRI was performed on May 31, 2013, showing improvement in the shoulder. Dr. Smith released Claimant at MMI on June 3, 2013, with no restrictions.

During the time frame she was treating with Dr. Smith for the shoulder, Claimant was also treating with Dr. Komes for her thoracic spine and with the Family Medicine Clinic for right leg pain. Physical therapy notes indicated Claimant's low back pain was worse than her shoulder pain on February 20, 2013, and on April 8, 2013. Claimant returned to the Family Medicine Clinic on July 18, 2013, for right leg and low back pain.

Dr. Choma at University of Missouri Health Care evaluated Claimant on September 30, 2013. She gave a history of 2 ½ years of low back pain with right leg numbness when walking. Dr. Choma ordered an MRI which showed a disc protrusion, central spinal stenosis at L4-5, and neurogenic claudication. He recommended surgery and a bilateral laminotomy was performed on October 28, 2013. She improved and Dr. Choma released her at MMI on February 7, 2014, noting that she was walking a half mile before having any pain in her right leg.

Claimant was returned to Dr. Smith on September 11, 2014, due to continuing symptoms in her right shoulder. She had decreased range of motion and adhesive capsulitis. On October 29, 2014, Dr. Smith performed a capsular release and lysis of adhesions on Claimant's right shoulder. Subsequently, Claimant had several months of physical therapy. On May 28, 2015, Dr. Smith noted shoulder pain of 2/10 at rest and that her pain was worse with activity, particularly reaching under shelves at work. She had active forward elevation to 130 degrees, external rotation to 80 degrees in the abducted position, and internal rotation to 40 degrees in the abducted position. In the neutral position, internal rotation was to L1 and the opposite side was to T8. He noted excellent strength, some pain with forward elevation, and extension of 40 degrees. He released her at MMI with no permanent restrictions.

Dr. Choma re-evaluated Claimant on June 3, 2015, for several months of progressive right low back, buttock, thigh and leg pain, foot neuritic pain, and big toe numbness. An MRI was performed on June 12, 2015. Dr. Choma noted low back pain in an L5 distribution but that there was no stenotic lesion on the MRI that could be contributing to it. He released Claimant at MMI, with no restrictions.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenna Morris

Injury No. 12-079705

On July 28, 2015, Claimant had a second independent medical examination with Dr. Robson, again at the request of her attorney. Dr. Robson reiterated his opinion that claimant needed a fusion at L4-5 as a result of the March 20, 2011, injury.

Claimant was then referred by the Employer to Dr. Chabot on November 9, 2015. After x-rays, EMG and review of the MRI, Dr. Chabot's diagnosis was instability at the L4-5 level. On December 29, 2015, Dr. Chabot performed decompressive lumbar laminectomies at L4-5 and an interbody fusion at L4-5. Post-operative treatment included physical therapy. On March 14, 2016, Dr. Chabot noted that Claimant did not walk with a limp and that she could heel and toe walk. He provided an injection in the sacroiliac region. In follow up on April 6, 2016, Claimant complained of back pain that tended to wax and wane in severity, with symptoms being aggravated by more vigorous activity. She had no limp. Forward flexion was to 95 degrees and extension was 35 degrees. On May 6, 2016, Claimant reported that she had some difficulty with prolonged standing, repetitive squatting, and lifting required by her job as a pharmacy tech. It was again noted there was no tenderness to palpation in the low back, no limp, and no spasm. Forward flexion had improved to 100 degrees. Extension had improved to 40 degrees, and side bending was to 40 degrees. Dr. Chabot noted that Claimant was walking a mile each day. Dr. Chabot last saw Claimant on May 23, 2016. She was not limping. He noted the CT scan reflected satisfactory progression of the fusion at L4-5. On exam, she had trigger points bilaterally involving the neck, thoracic spine, lumbar spine, and bilateral hips. Dr. Chabot stated those findings were suspicious for an underlying chronic myofascial disorder such as fibromyalgia. Range of motion measurements were similar to those of May 6, 2016. Dr. Chabot released Claimant at MMI with no restrictions. He noted she was working regular duty as a pharmacy tech.

On September 1, 2016, Claimant went to University of Missouri Health Care Emergency Department where she was diagnosed with a subarachnoid hemorrhage and internal carotid artery occlusion. She left against medical advice but was subsequently admitted on September 2, 2016. She was discharged on September 7, 2016. On discharge, the occupational therapist noted that Claimant reported ambulating without difficulty and had no upper or lower extremity weakness. She did have vision complaints and concerns about doing her job as a pharmacy tech because of the vision complaints.

Claimant saw a counselor at CenterPointe on December 2, 2016. It was noted she was excessively worrying about finances, not working, and having another stroke. On May 15, 2017, the counselor noted multiple stressors, including health problems, financial issues, and inability to find a job.

Claimant saw Dr. Raymond Cohen, at her attorney's request, on February 23, 2017. Dr. Cohen noted that Claimant did not appear to be in any acute distress and had no pain behaviors. With regard to the low back, he found tenderness to palpation over the right sacroiliac joint, flexion of 40 degrees (stating that 60 degrees was normal), extension of 20 degrees (stating that normal was 25 degrees), and side bending of 15 degrees. He stated Claimant had an antalgic gait. For the right shoulder exam, Dr. Cohen noted pain along the acromioclavicular and subacromial joints. Abduction was to 120 degrees; internal rotation was to T10; backward extension was 40 degrees. He found a mildly positive impingement sign.

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenna Morris

Injury No. 12-079705

Dr. Cohen attributes both back surgeries to the injury date of October 11, 2012. He placed very significant restrictions on her with regard to her low back and her right shoulder. It was Dr. Cohen's opinion that Claimant is permanently and totally disabled as a combination of the injuries of October 11, 2012; March 20, 2011; and April 28, 2010.

I find the contemporaneous medical treatment records and opinions of Dr. Smith and Dr. Chabot more persuasive than the opinions of Dr. Cohen. Dr. Smith and Dr. Chabot are treating orthopedic physicians who made their records at or near the time of the event and are disinterested parties. Both doctors released Claimant to return to work with no restrictions.

Dr. Cohen's conclusions are not credible, particularly with regard to the low back. Despite a continuum of complaints and treatment for the low back between March 20, 2011 and October 11, 2012, despite Claimant stating on intake forms that low back problems were from the injury of March 20, 2011, despite the records of Dr. Reinsel indicating a fusion was discussed on January 6, 2012, despite Dr. Choma noting a 2 1/2 year history of low back pain as of September 30, 2013, and despite Dr. Robson's opinions that Claimant needed a fusion as a result of the March 20, 2011, injury, Dr. Cohen attributes the more significant low back complaints and both surgeries to the October 11, 2012 injury date. This is simply inconsistent with the records. Claimant testified that she did not believe she re-injured her back on October 11, 2012, and the medical records support her belief as does the Stipulation for Compromise Settlement for the March 20, 2011, injury which shows a settlement of 32% body as a whole, referable to the low back. Her complaints from the October 11, 2012 injury date were to the thoracic spine and the right shoulder. The Stipulation for Compromise Settlement for that injury makes no mention of a permanent disability rating for the low back. The restrictions placed on Claimant by Dr. Cohen exceed what few objective findings he noted with regard to both the low back and shoulder. He also noted an antalgic gait which is not consistent with the treatment records of Dr. Chabot and the observations of vocational expert Kristine Skahan. Both documented Claimant had no limp. Ms. Skahan evaluated Claimant on June 26, 2017, some four months after the evaluation with Dr. Cohen.

Since I do not find Dr. Cohen's opinion persuasive, I also do not find vocational expert Kristine Strahan's opinion as to permanent total disability persuasive because it is based on the restrictions of Dr. Cohen.

I do not find Claimant to be permanently and totally disabled as a result of the combination of the work injury of October 11, 2012 and the pre-existing injuries of March 20, 2011, and April 28, 2010. Claimant's claim for permanent total disability is also affected by the following:

Claimant was working regular duty as a pharmacy tech after Dr. Chabot released her in May 2016. She worked in that position until her subarachnoid hemorrhage on September 1, 2016. At the time of her hospital discharge on September 7, 2016, she reported she was walking

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenna Morris

Injury No. 12-079705

without difficulty and had no upper or lower extremity weakness. Her concern about performing her job as a pharmacy tech was related to the vision complaints that arose from the subarachnoid hemorrhage. Her employment at Walgreens was terminated because of the time she missed after the subarachnoid hemorrhage, not because of a physical inability to perform her job as a pharmacy tech.

Claimant is well educated. She has an undergraduate degree in psychology and is one year shy of obtaining her masters' degree in psychology. The vocational expert described Claimant as vocationally and academically a "smart woman". While Claimant told the vocational expert she did not see the value in re-training as she was 57 years old and had a limited work life, Claimant testified that during the time frame she was not working, she took classes toward her masters' degrees. She would have been only three years younger, 54, at that time. Claimant also told the vocational expert that she did not think she could return to school because she would have difficulty with sitting, taking notes, and maintaining concentration. However, she testified that during the time period when she was not working, she took classes for her masters' degree. She stated she did not complete her masters' degree work because her father became ill and needed her attention, not because she could not participate in class due to any physical limitations.

Claimant is taking no prescription medications for pain for either her low back or her shoulder.

I do find that Claimant is entitled to benefits from the Second Injury Fund as a result of the synergistic effect of her permanent partial disabilities.

To recover against the Second Injury Fund based on permanent partial disabilities, Claimant must prove:

1. That claimant has a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment;
2. The percentage of disability attributable to the pre-existing disability equals a minimum of 50 weeks of compensation for a body as a whole injury or 15% for a major extremity injury. There must be a single pre-existing permanent partial disability that meets the thresholds to trigger the Fund's liability;
3. The combined disability is substantially greater than the disability that would have resulted from the last injury considered alone.

Treasurer of the State of Missouri v. Witte, etc., 414 S.W.3d 455, 462 (Mo.Banc 2013). All pre-existing injuries must be considered in calculating the amount of compensation for which the Fund is responsible. Id.

Claimant demonstrated that the low back injury of March 20, 2011, was of such seriousness as to constitute a hindrance or obstacle to employment. At the time of the last injury, Claimant was guarding her low back so as not to re-injure it. When she returned to work in May,

WC-32-R1 (6-81)

Page 10

**Employee:** Kenna Morris

**Injury No.:** 12-079705

2016 as a pharmacy tech, she had low back pain, especially with working the drive-through window. She cut her hours back to 30 per week. She would switch stations every few hours. It was difficult for her to get down to the lower shelves because of her low back and her shoulder. When Walgreens did not have a pharmacy tech position open in January 2017, Claimant attempted to perform a regular floor job which was more physical and involved constant stocking and cleaning. She could not tolerate it due to her low back. Claimant settled the low back claim for 32% body as a whole, or 128 weeks. The pre-existing back injury meets the threshold requirement of Section 287.220.1 RSMo.

Because at least one of the pre-existing injuries meets the threshold, all pre-existing injuries must be included in calculating the Fund's liability. Claimant also had a 5% disability to her ankle as a result of the injury of April 28, 2010. Said disability equates to 7.75 weeks.

The work-related injury of October 11, 2012, the "last" injury, resulted in permanent partial disability of 5% body as a whole referable to the thoracic spine, and 21.8% to the right shoulder. This equates to 70.57 weeks. The permanent partial disability from this last injury combines with the pre-existing permanent partial disability in the low back and ankle to create a greater overall synergistic disability than the simple sum of the individual disabilities based on a loading factor of ten percent.

The Second Injury Fund is responsible for 20.63 weeks of permanent partial disability benefits, or $7082.69. Attorney Christine Kiefer is allowed a fee of 25% of the Award.

I certify that on 9-4-18 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

**Made by:** __________________________

Melodie A. Powell

Administrative Law Judge

Division of Workers' Compensation