Employee was injured at work on February 4, 2012, resulting in what was diagnosed by Dr. Patricia Hurford, (Orthopedic Sports Medicine & Spine Care Institute), as lumbosacral syndrome. Dr. Hurford's characterization of the injury and that of Dr. James Coyle, is consistent with the administrative law judge's finding of severe lumbar strain. Dr. Coyle, a back surgeon, evaluated employee within days of the February 4, 2012 injury. He identified the current injury as exacerbation of chronic low back pain. Transcript, page 1223. Dr. Coyle also noted multilevel degenerative disc disease, with some disc protrusions, however, many of these changes had previously been identified over the course of prior treatment. Dr. Coyle did not recommend surgery. After conservative treatment, Dr. Hurford found employee to be at maximum medical improvement as of August 15, 2012, and we so find.¹
As of that time, Dr. Hurford ordered permanent restrictions of no lifting greater than 20 pounds, 15-20 pounds on a repetitive basis, and employee was restricted to light duty, with bending, squatting and kneeling activities on an occasional basis. Dr. Hurford noted the recent functional capacity evaluation found employee to be self-limiting in some activities. The evaluation report also noted discrepancies in validity criteria (failure in 4 of the 10 criteria). Dr. Hurford noted this suggested employee's perceived disability is in excess of "the observed functional abilities." Transcript, page 452. As of August 15, 2012, the restrictions placed on employee did not indicate she was unable to work.
¹ An additional letter, dated September 2, 2012 and authored by Dr. Hurford, refers to a visit "today in follow up," in which she recommends a functional capacity evaluation and review of this study before assessing permanent partial disability ratings and discharge at maximum medical improvement (MMI). That letter also refers in the header on the second page to a "DOS" on 8-2-12. (DOS is a common abbreviation for date of service.) However, it appears from the August 15, 2012, letter of Dr. Hurford declaring MMI, that the functional capacity evaluation had occurred prior to that date. One explanation is that the September 2, 2012 letter is mis-dated. Transcript 452, 453-454.
Injury No.: 12-007825
Employee: Lisa Caldwell
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After her work injury, but prior to the August 15, 2012 date of maximum medical improvement, employee sustained other injuries. She had additional treatment but continued to work, after missing some days following the incident at her home with the lawnmower on May 2012. Employee reported injury to her head and left extremity.
Dr. David Volarich performed an independent medical evaluation on May 7, 2013. He opined that the lawnmower incident resulted in no new objective pathology, but increased thoracic spine pain, with left knee pain now resolved to the pre-injury baseline level. *Transcript*, page 1068. He placed extensive limitations on employee's ability to work, opining that she was permanently and totally disabled. We note that the limitations he placed on her in 2013, were substantially similar to those he placed as permanent restrictions in December 2007, for work injury claims in 2005 and February, 2007. The only difference being a further limitation of the amount of weight (15 pounds) and the amount of time in a fixed position, (now every 10-15 minutes). (Compare, *Transcript* pages 1049 & 1071). He referenced his 2007 report which listed numerous limitations for her preexisting conditions as well, some restricting her weight lifting capability as 1-3 pounds in 2007. *Transcript*, pages 1049-1051. Given the extensive restrictions he enumerated in 2007, it would easily lead to the conclusion that she was totally disabled at that time, although the doctor did not expressly make that finding in the report at the time. Nevertheless, employee continued to work successfully on a full time basis as a nurse, for many years thereafter. We do not find Dr. Volarich's opinion that employee is now permanently and totally disabled to be persuasive. We do not find Dr. Volarich's opinion that employee suffered a 17.5 % permanent disability of the body as a whole, referable to the thoracic spine from the 2012 primary injury to be persuasive. We defer to, and adopt, the administrative law judge's ruling in adopting the 22.5 % disability rating, as referable to the low back as the disability rating for the primary injury.
Dr. Thomas Lee performed surgery on July 31, 2013, to address an extruded disc herniation at L4-5. Employee did not report any relief from pain as a result of this surgery. Both Dr. Hurford and Dr. Coyle had advised against this surgery.
Following this surgery, Dr. Coyle again evaluated employee and examined her on or about April 2014, for an independent medical evaluation. His report notes the extensive medical history, including his numerous prior evaluations of her beginning in 2005. He opined that her current diagnosis was post laminectomy syndrome. Dr. Coyle opined that she would be capable of working light duty, in a position that does not require consistent lifting, bending, or twisting and that would allow her to change positions, (sitting, standing, walking), and that her education as an R.N. would present opportunities for positions in light duty capacity which would fall within her restrictions.
In coming to his conclusions that employee was not permanently and totally disabled, the administrative law judge thoroughly considered Dr. Volarich's opinions and that of James England, the vocational rehabilitation counselor. While we acknowledge that employee proposes a different interpretation of that evidence, we agree with the administrative law judge's interpretation of the experts' opinions and testimony. We find the evidence supports a finding that employee worked in a full time capacity, albeit in light duty positions, after her primary injury, taking into consideration that she may have had some absences during that period. Employee stopped working on October 2, 2012, because employer could not offer an open position within her weight restrictions.
2 Employer and employee previously identified this rating in a lump sum settlement referable to the back.
3 The testimony and affidavit of the Human Resources manager indicates there were no available jobs in 2012 with a lifting requirement only up to 10 pounds. The sources of the H.R. manager's reliance on this weight limit is unclear.
Injury No.: 12-007825
Employee: Lisa Caldwell
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We find that the administrative law judge's reliance on the opinions of Dr. Hurford and Dr. Coyle as the more persuasive medical opinions is supported. The restrictions these doctors found to be appropriate do not support a finding of permanent total disability at the time of maximum medical improvement for her primary injury.
**Second Injury Fund Liability.**
We acknowledge that determining a disability rating in this case is complicated by the existence of numerous preexisting injuries, the subsequent lawnmower incident injury, in addition to a right shoulder surgery on October 12, 2012, and the apparently unsuccessful laminectomy on July 31, 2013. All these events occurred in close proximity to the primary injury and in some cases, before maximum medical improvement was declared for the primary injury.
Fortunately, the courts[^4] have made clear to us the steps necessary in analyzing Fund liability. First, we are to determine if the primary injury is compensable, and what the disability rating is for that injury at the point of maximum medical improvement. Employee was rated at 22.5 % disability referable to her low back as of the date of maximum medical improvement. If employee had been rated as totally disabled as a result of the work injury, our analysis would go no further.
Next, we determine if there are preexisting disabilities at the time of the primary injury. The evidence has shown there were preexisting disabilities as set forth in the administrative law judge's findings. The relevant point in time for evaluating the level of disability for Second Injury Fund liability in this case is at the time of the February 4, 2012 injury. The evidence does not show that employee was permanently and totally disabled as a result of the combination of the primary injury and preexisting disabilities at that time.
The best evidence of the effect of the various preexisting disabilities on employee's functioning at the time of primary injury can be discerned through the medical records near that date from the treating physicians. The doctors' observations at that time are more persuasive, when contrasted with the opinion of Dr. Volarich in 2007, or his later review in May 2013, (more than a year post-injury), opining that she was permanently and totally disabled. We adopt the administrative law judge's disability ratings as referable to the preexisting conditions.
Having set forth the relevant analysis for Fund liability, we do not see the need to address further any subsequent injuries or events, as did the administrative law judge.[^5]
**Correction**
At page 14 of the Award, the administrative law judge addresses the opinion of Mr. England. Mr. England did indicate that employee's education as a nurse could be transferable to less demanding alternative nursing positions in the medical field and that there "are probably some nursing positions that she would still be able to do." Transcript, page 1118. However, he offered a different position if he assumed the extensive restrictions suggested by Dr. Volarich were necessary. The administrative law judge stated, given this alternate position,
[^4]: Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000); Lewis v. Treasurer of Mo., 435 S.W.3d 144, 156 (Mo. App. 2014)
[^5]: Employee argues she was permanently and totally disabled before any of the subsequent events worsened her condition. As acknowledged by employee, "there is nothing wrong, per se, with the ALJ acknowledging that claimant's physical condition deteriorated after subsequent and unrelated treatment. But it's not relevant to the question of whether employee was already disabled before the subsequent deterioration." Reply Brief of Petitioner, page 4, (apparently referring to Award, page 17). In that vein, we agree that the results of the subsequent surgery, referred to as "elective" by the ALJ, are not pertinent to discerning employee's disability at the time of maximum medical improvement for the work injury.
Injury No.: 12-007825
Employee: Lisa Caldwell
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Mr. England "opined she was likely to remain very disabled from a vocational standpoint." *Award*, page 14.
We correct that statement to more precis