Gala Wolfmeier v. Diocese of Jefferson City

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-083494

**Employee:** Gala Wolfmeier

**Employer:** Diocese of Jefferson City (Settled)

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

**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.

Employee sustained a work injury on October 25, 2012. The administrative law judge found an 8.75% permanent disability to the body as a whole, for the primary injury. This rating does not appear disputed by the parties.¹ The disputed issues relate to any disability to be attributed to the Second Injury Fund (Fund) due to preexisting conditions and any synergistic effect generated by the combination of the primary and preexisting disabilities.

We find that the stiffness and dexterity problems employee experienced with her hands was shown to be a hindrance or obstacle to employment or reemployment at the time of her primary injury. The administrative law judge did not find any preexisting permanent partial disability was proven for her right shoulder, and we agree.

In addition, the claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. This is referred to as the "synergistic effect."

**Winingear v. Treasurer of State, 474 S.W. 3d 203, 207 (Mo.App. W.D. 2015) (internal citations omitted)**

If this greater degree of disability is proven with regard to any of the preexisting disabilities, the Fund is then liable for the degree of the combined disability that exceeds the sum of the preexisting disabilities and the primary, i.e. the "synergistic effect." *Id.* The administrative law judge assigned a load factor of 1.75%, body as a whole, to the synergistic effect of the primary injury to the lumbar spine only with her preexisting disabilities in her hands and we agree.

However, the administrative law judge found insufficient proof of synergy between the low back injury and employee's claims of nosebleeds, migraine headaches, or her left ankle. We agree and adopt the judge's findings.

¹ In her brief, employee requested a finding of 8.8% disability BAW referable to the low back.

Injury No. 12-083494

Employee: Gala Wolfmeier

- 2 -

We recognize that Dr. Raymond F. Cohen, offered an opinion of a higher level of synergy between employee's primary injury when viewed in combination with all the above claimed preexisting disabilities. However, it is not merely the "multiplicity" of preexisting conditions and primary disabilities which trigger synergy. *Id.* at 208. We do not find Dr. Cohen's analysis on the other claimed disabilities to be persuasive in that his analysis of synergy with the conditions is merely conclusory in nature, and does not assist the Commission in understanding how these unrelated conditions should be found to combine to create a new or increased limitation. Employee has not adequately proven that the total disability due to the combination of each of these preexisting conditions is greater than the sum of the individual disabilities. Employee's evidence with regard to the effects of her migraines and nosebleeds was very limited and the effect of those conditions on her work at the time of the primary injury was not clearly established.

In sum, owing to the dearth of persuasive evidence on the topic, we have not been persuaded to make a finding that the effects of employee's primary injury and her preexisting nosebleeds, migraines, and left ankle problems, (or her right shoulder), combine in such a way as to result in greater or enhanced disability beyond the simple sum of disability referable to these conditions. We adopt the administrative law judge's finding of synergy related to the preexisting disability with the hands and the low back at 1.75%.

**Conclusion**

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

The award and decision of Administrative Law Judge Hannelore D. Fischer 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.

Given at Jefferson City, State of Missouri, this 4th day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Gala Wolfmeier

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 primary injury to employee's low back is appropriately designated at a disability rating of 8.75% of the body as a whole, referable to the back. I also agree that Second Injury Fund liability has been established in respect to certain preexisting disabilities. However, in addition to the finding of synergy between the primary injury to the back and the additional disability at 1.75% attributable to the combined effect between the back and employee's preexisting disability to her hands, I would find synergy has been shown with regard to the left ankle.

Dr. Raymond F. Cohen opined as to the synergistic effect between the lumbar spine injury and the increased difficulty that employee's left ankle disability would cause in walking while carrying any weight, stooping and ladder work while carrying any weight. The combination of these two disabling conditions result in a greater limitation. Employee credibly testified as to the extra difficulty her left ankle causes her in combination with her back limitations, including the need for her to use a scooter in the workplace. I would increase the synergistic effect from 1.75% as found by the majority for the synergy between only the hands and the back to 5% synergistic effect to include an increased disability between the back and the hands, as well as the left ankle.

For these reasons, I concur in finding Second Injury Fund liability, but would modify the administrative law judge's award and increase that figure to 5% as described herein.

Curtis E. Chick, Jr., Member

Employee: Gala Wolfmeier

Injury No.: 12-083494

Dependents: N/A

Employer: Diocese of Jefferson City (previously settled)

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: N/A

Hearing Date: November 8, 2017

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

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 25, 2012
5. State location where accident occurred or occupational disease was contracted: Cole County, Missouri
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? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
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: Low back
14. Nature and extent of any permanent disability: 8.75 % body as a whole
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: ---
3. Weekly compensation rate: $433.58
4. Method wages computation: By agreement

1. Amount of compensation payable: Previously settled.
2. Second Injury Fund liability: 7 weeks of permanent partial disability from Second Injury Fund $=\ 3,035.06
3. Future Requirements Awarded: None

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

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Christine Kiefer. Christine Kiefer will assure that the Van Camp Law Firm fee is paid to the Van Camp Law Firm and that expense reimbursements are made to both the Van Camp Law Firm and the Kiefer Law Office.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on November 8, 2017. Memoranda were submitted by November 15, 2017.

The parties stipulated that the claimant, Gala Wolfmeier, was employed by the Catholic Diocese of Jefferson City on October 25, 2012. The parties stipulated that all facts relevant to Ms. Wolfmeier's relationship with the employer/insurer are resolved in her favor in the pending claim against the Missouri State Treasurer as Custodian of the Second Injury Fund (Second Injury Fund or SIF). The compensation rate for permanent partial disability benefits is $\ 433.58 per week.

The issue to be resolved by hearing is the liability of the Second Injury Fund. The parties stipulated that the primary claim settled based on a permanent disability of 8.75 percent of the body; the parties do not, however, agree that this percentage reflects the permanent disability resulting from the injury of October 25, 2012, in the pending claim against the Second Injury Fund.

The claimant, Gala Wolfmeier, was 45 years old as of the date of hearing. Ms. Wolfmeier testified that she is the benefits coordinator for the Catholic Diocese of Jefferson City. Ms. Wolfmeier described her job as working with health insurance and retirement benefits. Ms. Wolfmeier said that her job entails use of the keyboard, filing and attending meetings; Ms. Wolfmeier now receives assistance with heavy lifting or carrying heavy binders. Ms. Wolfmeier fell at work on October 25, 2012, when she slipped on a wet spot on the floor. Ms. Wolfmeier continues to have pain in her low back and radiating into both legs as the result of the fall. Ms. Wolfmeier cannot lie flat without shooting pains into her legs and can no longer stoop down to access the lower two drawers in her filing cabinet.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gala Wolfmeier

Injury No. 12-083494

Prior to 2012, Ms. Wolfmeier had migraine headaches beginning in the year 2000 and continuing through 2012 on a bimonthly basis twice a month. Ms. Wolfmeier treated her headaches with medications and injections from her primary care provider. Ms. Wolfmeier described missing a day or two from work every other month and needing to go to bed when the headaches were severe.

Ms. Wolfmeier also described nosebleeds occurring since about 1990 despite a rhinoplasty and attempts to cauterize the nose. Ms. Wolfmeier described the nosebleeds as occurring every other week or every week and lasting 30 minutes to two hours. Nosebleeds at work were handled by going into the restroom.

Since 2004, Ms. Wolfmeier has had low back complaints. Ms. Wolfmeier has had a nucleoplasty as well as epidural steroid injections to alleviate the low back complaints.

In 2006, Ms. Wolfmeier had plantar fasciitis in her left foot. Ms. Wolfmeier had surgery for this condition in 2006 with Dr. Klamet and has not had symptoms of plantar fasciitis since her recovery.

In 2009, Ms. Wolfmeier fractured her left foot when she slipped off of a curb. Tarsal tunnel syndrome was diagnosed and Dr. Duke operated on Ms. Wolfmeier's left foot twice. As a result Ms. Wolfmeier can no longer wear tight shoes and has the sense that her ankle will give way. Ms. Wolfmeier can no longer stand or walk for a significant amount of time without pain in the left foot. Apparently, Ms. Wolfmeier still occasionally uses a motorized scooter for the left foot injury.

Also in 2009, Ms. Wolfmeier was diagnosed with rheumatoid arthritis which leaves her fingers feeling stiff and for which she takes Methotrexate and Humira. Ms. Wolfmeier said that she is no longer stuffing envelopes at work and that her employer has provided job accommodations since 2009 and that she is no longer required to do mailings and fold and stuff envelopes. Ms. Wolfmeier said that she uses a brace on her left hand for her arthritis and that she has been using the brace for about eight months. Ms. Wolfmeier feels that the rheumatoid arthritis has also affected her feet and that her feet no longer cooperate.

Ms. Wolfmeier had surgery on her right shoulder for a torn rotator cuff in August of 2017. Ms. Wolfmeier testified that prior to 2012 she experienced pain with extension and reaching of the right arm. Ms. Wolfmeier said that her right shoulder condition is improved since her surgery.

Ms. Wolfmeier testified that she does a lot of typing in her current position and that she would describe her typing speed as "fair."

Dr. Cohen evaluated Ms. Wolfmeier and issued a report pertaining to the evaluation dated April 13, 2017. Dr. Cohen found Ms. Wolfmeier's permanent disability from the October 25, 2012

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gala Wolfmeier

Injury No. 12-083494

accident to be 12 or 12.5 percent of the body. Dr. Cohen said that Ms. Wolfmeier's permanent disabilities as the result of her preexisting conditions are 40 percent of the left ankle, 20 percent of the left wrist, 20 percent of the right wrist, 15 percent of the right shoulder, and ten percent of the person as the result of epistaxis and migraine headaches.

Dr. Cohen described his examination of Ms. Wolfmeier's low back as revealing a straightening of the lumbar lordotic curve, pain to palpation of the lumbar paraspinous muscles and flexion, extension and lateral flexion limited by pain.

With regard to the left ankle Dr. Cohen noted a 30 percent loss in motion in all directions as compared to the right ankle. Ms. Wolfmeier complained of discomfort in the left foot with motion in all directions, particularly with inversion and eversion of the left ankle.

With regard to the hands, Dr. Cohen noted ulnar deviation in the fingers of both hands, a 50 percent loss of motion of the left MP joint and tenderness in the fingers.

Dr. Cohen noted that Ms. Wolfmeier's headaches have been relieved with the preventive medication Topamax. With regard to the nosebleeds, Dr. Cohen stated that Ms. Wolfmeier has missed "hours to days" of work throughout the years.

Dr. Cohen issued his report in April of 2017, months before Ms. Wolfmeier's right shoulder surgery.

Dr. Cohen's comments regarding Ms. Wolfmeier's prior low back issues are not discussed where the claimant did not pursue the prior back injury as combining with the October 25, 2012 back injury to create greater disability than their simple sum, and Dr. Cohen did not find the prior back injury to be significant enough to provide a disability rating or an opinion regarding synergy.

Dr. Cohen addressed the synergy between the October 25, 2012 lumbar spine injury and Ms. Wolfmeier's prior injuries to the left ankle, nosebleeds, and headaches by merely restating restrictions due to the prior left ankle, nosebleeds, and migraine headaches. With regard to the synergy between the October 25, 2012 lumbar spine injury and Ms. Wolfmeier's prior right shoulder and prior rheumatoid arthritis, Dr. Cohen described difficulties Ms. Wolfmeier would have in lifting.

APPLICABLE LAW

RSMo Section 287.220.2 All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen

WV-32-0116-011

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gala Wolfmeier

Injury No. 12-083494

percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury 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 employer at the time of the last injury is liable is less than the 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 the second injury fund.

AWARD

The claimant, Gala Wolfmeier, has sustained her burden of proof that the Second Injury Fund is liable for permanent disability of 1.75 percent of the body as the result of the combination of the disabilities to the lumbar spine as the result of the October 25, 2012 injury and her preexisting disabilities in her hands. Ms. Wolfmeier testified to the permanent disability in her low back as the result of the October 25, 2012 accident and Dr. Cohen evaluated permanent disability in Ms. Wolfmeier's low back resulting from the October 25, 2012 accident; thus, I find that Ms. Wolfmeier's permanent disability as the result of the October 25, 2012 accident to be 8.75 percent of the body. Ms. Wolfmeier testified to changes in her work duties as the result of the limitations in her hands, especially the left hand, prior to 2012. Dr. Cohen described the combined limitations suffered by Ms. Wolfmeier in her ability to lift due to low back and hand disabilities. The left hand is evaluated as having a prior 15 percent disability while the right hand is evaluated to have a prior five percent disability. The right shoulder is not assigned any permanent disability given Ms. Wolfmeier's post 2012 accident treatment and excellent recovery post surgery. Ms. Wolfmeier's prior left ankle, nosebleed, and migraine headaches complaints

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**Employee:** Gala Wolfmeier

**Injury No.:** 12-083494

are not included in calculation of Second Injury Fund disability given a complete lack of findings of synergy between these complaints and the 2012 low back injury.