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.