Lisa Caldwell v. Missouri Baptist Hospital of Sullivan

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-007825

**Employee:** Lisa Caldwell

**Employer:** Missouri Baptist Hospital of Sullivan (settled)

**Insurer:** Self-Insured (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, heard the parties' arguments, 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, including additional factual findings. We adopt the administrative law judge's findings of fact and conclusions of law to the extent they are not inconsistent with this supplemental opinion.

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

- 3 -

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

- 4 -

Mr. England "opined she was likely to remain very disabled from a vocational standpoint." *Award*, page 14.

We correct that statement to more precisely state Mr. England's alternative position in his written report of December 18, 2013:

> "Obviously, if I assume Dr. Volarich's restrictions and Lisa's presentation as well as her description of her typical day to day functioning I believe she would be totally disabled from a vocational standpoint."

*Transcript*, page 1152.

Nevertheless, we agree with the administrative law judge's finding that the opinions of Dr. Hurford and Dr. Coyle are more persuasive than Dr. Volarich. Employee's testimony about her self-limitations is afforded limited weight, considering the administrative law judge's credibility finding, which we also adopt. Ergo, Mr. England's alternative position is given little weight.

**Conclusion**

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

The award and decision of Administrative Law Judge Marvin O. Teer Jr. 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 9th day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornelo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 12-007825

Employee: Lisa Caldwell

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 to award employee permanent and totally disability.

Employee has suffered numerous injuries in the performance of her work duties. In 2005 and 2007, she sustained injuries with this same employer. The history of employee's injuries shows that her physical functioning decreased over the years, but she did not stop working as a nurse despite her increasing pain and limitations. She is to be commended for this. The limitations listed by Dr. David Volarich as preexisting disabilities in 2007 and the subsequent injuries and disabilities through her date of maximum medical improvement in August 2012, are substantial evidence of permanent and total disability. Mr. James England's thorough review and evaluation supports a finding of permanent and total disability. I find the opinions of Mr. England and Dr. Volarich credible and persuasive. I would also adopt the disability ratings of Dr. Volarich, 17.5 % permanent partial disability of the body as a whole referable to the thoracic region and 20 % permanent partial disability referable to the lumbar spine. Therefore, I would find that employee's preexisting disabilities and her primary injury combined to result in permanent total disability, such that Second Injury Fund liability should exist for the balance of disability in excess of employer's liability.

For these reasons, I respectfully dissent.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

injury Number: 12-007825

AWARD

Employee: Lisa Caldwell Injury No.: 12-007825

Dependents: N/A Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Employer: Missouri Baptist Hospital of Sullivan (settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured

Hearing Date: August 27, 2018 Checked by: MOT

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: February 4, 2012

1. State location where accident occurred or occupational disease was contracted: Franklin County

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was assisting a 650 lb. patient remove clothing for exam when patient fell off gurney and onto Claimant.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Low back

1. Nature and extent of any permanent disability: Permanent partial disability

1. Compensation paid to-date for temporary disability; $16,795.78

1. Value necessary medical aid paid to date by employer/insurer? $44,106.77

1

1. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
2. Employee's average weekly wages: $\ 1559.60
3. Weekly compensation rate: $\$ 811.73 / \ 425.19
4. Method wages computation: stipulation

1. Amount of compensation payable:

Employer

Settled

1. Second Injury Fund liability: Permanent partial disability benefits

$\ 34,644.81

TOTAL: $\ 34,644.81

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 Attorney David G. Plufka for necessary legal services rendered to the claimant.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

Employee: Lisa Caldwell

Dependents: N/A

Employer: Missouri Baptist Hospital of Sullivan (settled)

Additional Party: Second Injury Fund

Injury No.: 12-007825

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-insured

The parties appeared before the undersigned Administrative Law Judge on August 27, 2018, for a final hearing to determine the liability of the Second Injury Fund in the matter of Lisa Caldwell. Attorney David Plufka represented Claimant. Assistant Attorney General Caroline Bean represented the Second Injury Fund. The Employer, Missouri Baptist Hospital of Sullivan, previously settled with Claimant and did not participate in the hearing.

The parties stipulated to the following:

1. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
2. Venue is proper in St. Louis, Missouri.
3. Employer received proper notice of the claim.
4. Claimant filed the claim within the time allowed by law.
5. Claimant suffered an accident at work that arose out of and in the course and scope of her employment.
6. The average weekly wage at the date of injury was sufficient to qualify for rates of $811.73 for temporary total disability, (TTD) and Permanent Total Disability, (PTD), and 425.19 for permanent partial disability, (PPD).
7. Employer paid 44,106.77 in medical expenses.
8. Employer paid $16,795.78 in temporary partial disability (TPD).

3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

ISSUES

The issues to be determined are:

1. Medical Causation
2. The liability of the Second Injury Fund.

EXHIBITS

Claimant offered the following exhibits, which were received into evidence without objection:

1. Records of Missouri Baptist Hospital of Sullivan
2. Records of Dr. Thomas Lee
3. Records of St. Anthony's Medical Center
4. Records of Dr. Boland
5. Records of Dr. Hurford
6. Records of Dr. Richard Johnston
7. Records of Dr. Coleman
8. Records of St. Mary's Hospital, Clayton
9. Records of Pacific Chiropractic Center
10. Records of Dr. Jacob
11. Records of St. John's Mercy Medical Center
12. Records of Dr. James Emanuel
13. Records of Dr. Calvin
14. Records of Dr. Dunteman
15. Records of Dr. Grant
16. Records of Dr. Costen
17. Deposition of Ms. Kathleen Reed
18. Deposition of Dr. David Volarich
19. Deposition of Mr. James England
20. CLSS Group

The Second Injury Fund offered the following exhibits, which were received into evidence without objection:

I. Deposition of Dr. Coyle

II. Missouri Division of Employment Security Records

III. Depositions of Claimant; 8/16/12 and 11/23/15

Only evidence necessary to support the award will be summarized. Any objections, not expressly ruled on during the hearing or in this award, are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

being made part of this record and were not placed thereon by the Administrative Law Judge.

Claimant is 53 years old and currently lives in Bourbon, Missouri with her husband who is disabled. Claimant graduated from high school in 1982 and subsequently completed an EMT program through Forest Park Community College and Abbot Ambulance in 1986. Claimant obtained her Associates Degree in Nursing in 1994. Claimant worked as a staff RN in the ER for Missouri Baptist in Sullivan ("Employer") for about 18 years and testified she last worked for that facility on October 2, 2012. Claimant testified, at the time of injury, she was working three consecutive 12-hour shifts on weekends. Her job required her to be on her feet the vast majority of her shift. Claimant further testified she would lift anything from a clipboard to a patient. Past employment includes working as a CNA, staff nurse at a nursing home and working for several ambulance districts as a paramedic.

On February 4, 2012, Claimant sustained an injury at work when a 650-pound patient lost his balance and fell on her while she was helping him get out of his clothes. Claimant testified she worked light duty first in the hospital's admission office in March 2012, then, in the billing office full time beginning May 12, 2012, until she was terminated in October 2012 because the Employer could no longer accommodate her 35-pound weight restriction. Claimant settled her claim against the Employer for 22.5% PPD of the body as a whole referable to the back on March 14, 2018.

Before her February 2012, injury, Claimant had two other work-related injuries and prior injuries to her right and left knees, right and left shoulders, neck, and low back.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

**Right and Left Knee:**

Claimant injured her right knee while in high school. On August 3, 1981, she underwent a left knee diagnostic arthroscopy for a patellar subluxation with Dr. William Costen. On June 25, 1986, Dr. Costen returned her to surgery for a right knee arthroscopy and resection of plica at St. Luke's Hospital. (EE ex.16)

Claimant's evidence showed she injured her left knee when it popped while climbing into a car to administer CPR on May 20, 1987. On July 18, 1988, she twisted her left knee while exiting an ambulance. Dr. Schafly diagnosed a first-degree ligament sprain and recommended conservative care. He returned her to work, without restrictions, effective August 10, 1988.

Claimant injured her left knee lifting a patient into an ambulance on January 30, 1989. Dr. Mark Dobyns diagnosed a left knee strain. Symptoms resolved and he released her from care on February 16, 1989. On February 23, 1992, Dr. William Grant performed right knee arthroscopy, shaving of the tibial plateau and chondromalacia at St. John's Mercy Medical Center. Dr. Grant returned Claimant to work without permanency on June 8, 1993.

**Right and Left Shoulders:**

In April 1990, Claimant was riding in an ambulance that was involved in a motor vehicle accident. She was first treated conservatively with injections and therapy. With a diagnosis of left shoulder impingement on June 11, 1990, Dr. Evans took her to surgery for an arthroscopy and acriomioplasty with release of coracoacromial ligament left shoulder.

On September 24, 1997, Claimant injured her right shoulder while lifting a patient in a stretcher. She felt a pop and was initially diagnosed with a strain. Claimant was treated with PT and injections as well as work restrictions. Claimant was diagnosed with chronic right rotator cuff tendonitis on November 17, 1997, PT and injections were continued. On December 8, 1997, Dr. James Emanuel diagnosed intrasubstance tear of the glenoid labrum or SLAP lesion or possible partial thickness rotator cuff tear and recommended surgery. On December 17, 1997, Dr. Johnston performed a right shoulder arthroscopy and subacromial decompression. Post-op Claimant had PT and returned to regular work activities on February 22, 1998. On December 18, 2007, Claimant told Dr. Volarich that her shoulders slowed her down but she continued to work full duty without physician or self-imposed restrictions. (EE ex.18)

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

Neck/Cervical Spine:

Claimant suffered a neck sprain because of the April 1990 motor vehicle accident while riding in an ambulance where she ended up under the dashboard. In May 1993, Claimant, then, working as a CNA hurt her neck when a patient grabbed her pulling her neck. X-rays taken on December 8, 1993, failed to reveal abnormality. She underwent chiropractic care. On May 2, 1994, Dr. Karl Jacobs diagnosed cervical sprain/pain with cervical disc displacement right suspected, cerebral concussion with brief unconsciousness and post-concussion headache. Dr. Jacobs ordered an MRI which showed a bulging disc at C5-6 and a smaller bulging disc at C6-7. A myelogram CT led to a diagnosis of cervical spondylosis with myelopathy at C5-6, right C6 nerve compression and cervical spinal stenosis at C5-6. On June 2, 1994, Dr. Jacobs performed an anterior cervical decompression C5-6; bilateral foraminotomy with microdiscectomy, bone bank interbody fusion, and partial corpectomy. On July 25, 1994, Dr. Jacobs returned Claimant to normal activity except for heavy lifting. (EE ex.10)

On May 6, 1999, Claimant, working as an ER nurse, a patient's boyfriend was assaulted by a patient's boyfriend. Claimant was thrown against a wall and dragged around by the neck. On June 14, 1999, she underwent an anterior cervical decompression C6-7 with synthes plate removal from C5 to C6, right C6-7 bone bank interbody fusion with graft placement, bilateral C7 nerve root foraminotomy and free fragments disc removal. Post-op diagnoses were cervical displacement disc at C4-5 and C6-7, free fragment right C6-7 disc and cervical sprain due to trauma. Claimant was treated on February 28, 2000, for neck pain following PT. A CT of the cervical spine demonstrated pseudoarthritis at C6-7.

On May 5, 2000, Dr. Michael Boland performed revision of C6-7 surgical removal of previous anterior synthes titanium plating, exploration and excision of C6-7 anterior pseudoarthrosis, and a fusion of C6-7. Post-op diagnosis included C6-7 pseudoarthrosis and status post C6-7 anterior discectomy and interbody fusion. On June 21, 2000, Claimant returned to work with a 25-pound lifting restriction and was released to full-duty work duty without restrictions one month later. (EE ex.4)

Claimant suffered a flare-up of symptoms in January 2001. Dr. Boland administered a right C6-7 facet injection on March 26, 2001, and advised Claimant to keep working in her present capacity. Claimant was administered a C6-7 facet block on April 6, 2001, which yielded

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

improvement in her right upper extremity complaints but not the neck. Following an ER visit for severe neck pain on April 25, 2001, she remained off work for a few days and returned to work on June 11, 2001, and was working 40-60 hours a week.

Claimant saw Dr. Edwin Dunteman on April 19, 2002, and was diagnosed with facet arthropathy with question of pseudoarthrosis at C6-7. She was administered a C6-7 block on April 25, 2002. (EE ex.14) Dr. Boland recommended a reoperation and took her back to surgery on May 9, 2003, for a C6-7 posterior spinal fusion with insertion of local autograft bone into the facet joints and interspinous process wiring at C7 and sublaminar wiring at C5 using Danek Atlas titanium cage.

Beginning in 2008 and beyond the February 2012 injury Claimant treated with Dr. Kevin Coleman for pain management for cervical post laminectomy syndrome, cervicalgia, myofascial pain and cervical radicular pain. She was administered an epidural and trigger point injections. Dr. Coleman diagnosed cervical spondylosis, myofascial pain, facet joint syndrome and degenerative disc disease and administered C4, C5 and C6 median branch nerve blocks on August 16, 2011. He administered bilateral C3, C4, C5 and C6 median branch nerve blocks on December 13, 2011, and repeated the injections on March 20, 2012. (EE ex.7)

Low Back:

On March 24, 2005, Claimant was transferring a patient from a wheelchair to a stretcher when she felt pain in her low back and left lower extremity. She presented to the ER and was taken off work for a few days. MRI showed mild changes at L4-5. Claimant continued to work full duty while participating in PT and undergoing a series of epidural steroid injections.

On February 18, 2007, Claimant slipped on a bathroom floor at the hospital striking her left hip and landing on her buttocks. After leaving the building, she slipped, again on ice, striking her left hip and injuring her back. Claimant treated at the ER and was off work for two days. An MRI of the lumbar spine on February 26, 2007, revealed L4-5 disc herniation, L2-3 disc bulge, and left L1-2 disc herniations. MRI of the thoracic spine revealed small thoracic disc herniation at T9-10, T10-11, T11-12 and chronic T10 compression deformity.

Dr. Russell Cantrell performed an IME on October 7, 2008 regarding complaints attributable to the March 2005 and February 2007 incidents. Thoracic back pain had resolved as had left lower extremity symptoms. He diagnosed a lumbar strain and placed her at MMI and determined she did not need any long-term restrictions or additional treatment. Dr. Cantrell rated

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

4% PPD BAW for the 2005 injury and 3% PPD BAW at the thoracic spine for the 2007 injury and 3% PPD pre-existing with degenerative disc disease at the thoracolumbar spine.

Dr. Coleman administered a lumbar epidural steroid injection on October 7, 2011 when Claimant complained of lower back and hip pain as well as pain down her left leg.

**Hands:**

In 2009 Claimant developed increasing pain, numbness and tingling in her hands and wrists. Dr. Evan Crandall examined her on September 14, 2011, and diagnosed possible carpal tunnel syndrome or radiculopathy and ordered a nerve conduction study/EMG, which revealed right greater than left carpal tunnel syndrome and chronic right greater than left C5, C6 and C7 radiculopathy. Dr. Crandall did not believe that work was the prevailing factor in causing the carpal tunnel syndrome.

**Claimant's Primary Injury:**

Claimant testified that on February 4, 2012, she was at work in the ER assisting a patient undress who weighed about 650 pounds. As she squatted down to help him take off his pants, the patient, who was on stretcher, lost his balance causing the stretcher to tip and the patient to fall and land on top of her. Claimant was seen in the ER with complaints of mid and low back pain. X-rays were obtained which showed multilevel degenerative disc disease, disc space narrowing at L4-5, L5-S1, L1-2 and L2-3 with sclerosis of the posterior elements.

Claimant saw Dr. Jennifer Barbin on February 6, 2012, with complaints of mid and low back pain that radiated to her left and right thigh and weakness in her legs. Dr. Barbin diagnosed a back strain prescribed vicodin, baclofen, and recommended physical therapy, which Claimant attended at Sullivan Sports Fitness & Rehabilitation Center.

On February 7, 2012, Claimant saw pain specialist, Dr. Coleman, and underwent an epidural steroid injection at L5-S1.

Orthopedic surgeon, Dr. James Coyle, saw Claimant on February 15, 2012, for evaluation of mid back pain and left lower extremity pain. Claimant reported complaints of mid back and low back pain, bilateral hip pain and left leg pain. Dr. Coyle noted a history of prior back pain. Claimant had been seen by his office the previous May with back pain. She was given a Medrol.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

Dosepak and released back to work with no permanent restrictions. Claimant reported having intermittent back symptoms since then and had undergone a total of three epidural steroid injections but the symptoms she was experiencing presently were worse than her normal back pain. (SIF ex.I). With Claimant reporting ongoing back pain with her entire left leg being painful Dr. Coyle ordered an MRI and kept her off work.

Claimant returned to Dr. Coyle for follow-up on March 6, 2012, having had a thoracic and lumbar MRI. The cervical MRI showed the prior fusion to C7, mild disc bulges in the lower thoracic spine without any frank herniation with degenerative changes throughout the thoracic spine. The radiologist had noted protrusions at T-9-10, T10-11 and an osteophyte at T11-12, there was no mass effect on the cord. The disc protrusion at T9-10 had been on a prior MRI and had decreased in size. The lumbar MRI showed evidence of a disc protrusion extending into the foramen on the left at L2-3 also seen on a prior MRI. Degenerative changes at L3-4 appeared stable. An extruded disc was seen lateralizing to the left greater than the right at L4-5 which had progressed compared to a prior study when a smaller protrusion was seen at this level. There was also noted to be a disc extrusion at L1 lateralizing to the left and extending into the foramen. Dr. Coyle examined Claimant and diagnosed multilevel degenerative disc disease with disc protrusions throughout the lumbar spine and several disc protrusions in the thoracic spine. He did not think surgery was indicated, and that Claimant should make every effort to avoid surgery. He referred her to rehabilitation specialist and aqua therapy. He kept her off work pending being seen by the physiatrist. (SIF ex. I)

Claimant saw Dr. Patricia Hurford on March 29, 2012, who assessed chronic thoracic and low back symptoms with increased low back and left lower extremity radicular symptoms. Dr. Hurford recommended aqua therapy, oral steroids and administered a left L1-2 epidural injection. On April 18, 2012, Dr. Hurford noted improvement after the injection but noted Claimant had been recently hospitalized for pancreatitis and C.difficile infection. (EE ex.5).

SUBSEQUENT INJURIES:

Left knee, back, neck, head, shoulders:

On May 21, 2012, Claimant was riding a lawnmower up a ramp into a truck when the ramp collapsed causing her to fall 3 feet and land on her back and head in the gravel. The mower ran across Claimant's left leg and thigh. She was seen at the Missouri Baptist ER in Sullivan for

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

severe trauma and pain to her left shoulder, back, neck, pelvis and left femur with negative x-rays involving the chest, cervical spine, pelvis, left femur and left shoulder. Claimant continued to have significant left knee pain in the medial aspect of the knee and pain in her left shoulder. Claimant saw PA-C Allen Mathieu at Dr. Richard Johnston's office on June 5, 2012. She followed up June 18, 2012, with complaints of continuing pain in the medial aspect of the knee with episodes of the knee giving way, especially with pivoting or twisting. Dr. Johnston ordered an MRI, which revealed no evidence of internal derangement. Claimant was to continue physical therapy.

**Right Shoulder:**

Claimant saw PA Jeff Todd at Dr. Johnston's office on September 24, 2012, with complaints of right shoulder pain for the past four years. She presented with pain in the deltoid area. An MRI was ordered, which orthopedic surgeon, Dr. Emanuel, reviewed. There was evidence of significant arthritic changes at the acromioclavicular joint with bone spur formation, fluid in the joint, as well as some edema of the anterior distal clavicle. The examination further revealed mild AC spurring. Dr. Emanuel noted symptoms for two years with her shoulder pain preventing her from sleeping.

On October 12, 2012, Dr. Emanuel took Claimant to surgery and performed a right shoulder arthroscopic SLAP lesion repair, extensive debridement of partial thickness rotator cuff tear, subacromial decompression and distal clavicle resection of 20% of the rotator cuff tear. Post-op, Claimant was placed in an immobilizer and progressed through a course of physical therapy. At the December 26, 2012, follow-up visit, Claimant stated her shoulder was slowly improving and she noticed some pain in her elbow since the surgery. On February 9, 2013, Dr. Emanuel noted Claimant was doing well with her shoulder. Dr. Emanuel discontinued physical therapy and put her on a home exercise program.

**Left Shoulder:**

On October 28, 2014, Claimant was in the left lane trying to pass a truck when her vehicle was struck on the driver's rear side. She was seen in the ER at Missouri Baptist Sullivan (EE ex. 1). It was noted her airbag deployed but she was not wearing a seatbelt. She was administered a Dilaudid injection and released. She returned on October 29, 2014, with

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

complaints of a headache, dizziness, nausea and worsening tinnitus. CT of the cervical spine and brain revealed no acute changes. X-rays of chest and left knee showed no acute changes. She was diagnosed with a mild concussion. Dr. Hulsey examined her on January 5, 2015, wherein he noted left shoulder pain and ordered an MRI. He reviewed the study on January 21, 2015, and diagnosed left shoulder AC joint arthrosis with impingement syndrome and recommended surgery. On February 6, 2015, Dr. Hulsey took Claimant to surgery and performed a left shoulder arthroscopic subacromial decompression, acromioplasty with resection of distal clavicle debridement of glenoid labrum and rotator cuff, left clavicle resection and biceps tenodesis. Post-op Claimant underwent a course of PT. Dr. Hulsey release her with no restrictions on April 24, 2015.

C. difficile:

Claimant was hospitalized in April 2012 and, again, for 10 days in May 2015 for C.difficile colitis.

Claimant's Expert Testimony

Dr. David Volarich, D.O.,

Dr. David Volarich, a board certified physician, testified by deposition on behalf of the Claimant's behalf. Dr. Volarich testified he first evaluated Claimant on December 18, 2007 for her March 24, 2005, and February 18, 2007, workers' compensation claims. He next evaluated Claimant on May 7, 2013, and re-evaluated her on November 26, 2014, following her July 31, 2013, L4-5 microdiscectomy with Dr. Lee. Dr. Volarich saw Claimant, again, on November 26, 2014, and November 23, 2015. Dr. Volarich did not perform a separate physical examination of Claimant.

Dr. Volarich testified that following the May 7, 2013, visit he rated Claimant's February 4, 2012, injury at 20% PPD at the lumbar spine due to progression of disc bulge at L1-2 to a large herniation to the left as well as increased size of the L4-5 herniation and 17.5% BAW at the thoracic spine.

Following his November 26, 2014, examination of Claimant, Dr. Volarich testified he modified his rating and changed it to 25% PPD of the BAW at the lumbar spine due to the lumbar left leg radiculopathy from the disc herniation at L4-5 for which she underwent bilateral L4-5 laminectomy and discectomy.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

Dr. Volarich testified, in his opinion, Claimant was permanently and totally disabled, as a direct result of the work-related injury of February 4, 2012, in combination with her pre-existing medical conditions. It was further his opinion she was permanently and totally disabled absent the subsequent minor increases in thoracic and left shoulder symptoms and the right shoulder repair.

Dr. Volarich also testified Claimant had the following disabilities prior to the February 4, 2012, injury: Claimant had 25% PPD BAW at the lumbar spine, 25% PPD BAW at the thoracic spine, 35% PPD of the right knee, 35% PPD of the left shoulder, 40% PPD of the right shoulder, 25% PPD of the left wrist, 25% PPD of the right wrist and 50% PPD BAW referable to the cervical spine.

Dr. Volarich noted post-op Claimant developed pain and tingling in her arms and legs and that she was under no active treatment other than pain control. Claimant reported since her surgery she had constant ice pick stabbing pain which improved somewhat, but she continued to have pain in her low back that radiates up into her low back. She still uses a cane outside the house.

Dr. Volarich noted the MRI of her lumbar spine, obtained on October 30, 2013, revealed a disc herniation to the left at T11-12, a disc bulge to the left at L1-2, a disc protrusion to the left at L2-3 and post-op changes to the left at L4-5. These changes added an additional 17.5% PPD BAW rated at the thoracic spine due to the increased size of disc herniations at T10-11 and T11-12 to the left that required non-operative care.

On cross-examination by Employer's counsel, Dr. Volarich agreed that Dr. Coyle had indicated Claimant could work in light capacity. He agreed Claimant was working way beyond the restrictions contained in his 2007 report. He acknowledged that if one added up all of the ratings for the cervical, lumbar and thoracic spine stated in his December 18, 2017, report it came up to 105% of the BAW. Dr. Volarich agreed that Claimant was not taking the pain medication dilaudid before the February 4, 2012, injury.

On cross-examination by the Fund, Dr. Volarich acknowledged Claimant suffered an accident when her riding mower fell on her resulting, in part, in a left shoulder injury that required surgery. He conceded not conducting a physical examination of Claimant when he saw her again on September 23, 2015, but instead relying on her subjective reporting. Dr. Volarich

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

was aware that before the February 4, 2012, injury, Claimant was working up to 12-hour shifts, 3 days a week without accommodations. (EE ex. 18, depo p.37) He agreed there were no counter indications. Claimant was able to do her job in the patient-billing department until the time she was terminated. (Id.p.36)

Jim England, vocational rehabilitation counselor:

Mr. England, a certified vocational counselor, performed an assessment to determine Claimant's employability in the open labor market on October 29, 2013. In his December 18, 2013, report, Mr. England noted Claimant was a younger worker with an associates and RN degrees. Claimant worked for Employer, Missouri Baptist Hospital, from November 17, 1994, to October 2012, where Claimant had been employed for most of her career. Claimant worked primarily in the ER as a staff nurse. In the ER, her job required her to be on her feet for the majority of her workday. Claimant normally had to do a combination of squatting, reaching, balancing, carrying pushing, and stooping. Claimant would lift anything from charts to patients. Mr. England administered the Wide Range Achievement Test, and Claimant scored at post high school in reading and seventh-grade level on math.

It was Mr. England's opinion, if considering the opinions of the treating doctors, Claimant would be precluded from regular nursing work, but would not be precluded from using some of her knowledge in alternative less physically demanding nursing positions in fields such as utilization review, medical bills review for insurance companies, working at an answer desk positions for hospital hotlines, and other such medical support occupations. If, one assumed Dr. Volarich's restrictions and Claimant's description of her typical day-to-day functioning, including her need to recline during the day, then, Mr. England opined she was likely to remain very disabled from a vocational standpoint.

Dr. James J. Coyle, M.D.,

Dr. Coyle, a board certified physician, testified by deposition on November 18, 2016. Dr. Coyle treated Claimant, and later performed an IME on April 2, 2014, on behalf of her employer. Dr. Coyle reviewed the IME of Dr. Volarich and the treatment notes of Drs. Coleman and Lee. He interviewed Claimant and conducted a physical examination. Claimant presented with complaints of popping and catching in her back on the left side, which she stated were causing her excruciating pain that prevented her from getting up and walking.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

Claimant's physical examination showed a well-healed incision at L4-5. She reported falling frequently and stated she could not sit or stand very long. She could not squat without hanging onto something. She was currently dragging her left foot but was able to walk on her toes. She had negative straight leg test bilaterally. Current pain medications were oxycodone 15 mg tablets. Claimant stated Dr. Coleman wrote for 220 tablets per month but she was not taking all of them.

Dr. Coyle's diagnosis was post-laminectomy syndrome at L4-5. Dr. Coyle testified, in his opinion, Claimant did not have a large disc herniation prior to surgery and did not have clinical indications for surgery. Claimant was substantially worse, now, than she was when he evaluated her prior to surgery. Dr. Coyle testified Claimant's surgery with Dr. Lee was a very bad idea. She had an intervening lawnmower accident in May 2012. Her February 4, 2012, work injury was not the prevailing factor in causing her surgery. Dr. Coyle felt Claimant was presently capable of working in a light-duty capacity. Claimant is an RN, so there were many things she could do that did not require consistent lifting, bending or twisting and such occupations would enable her to sit, stand or walk. It was further Dr. Coyle's opinion Claimant was at MMI from her February 4, 2012, work injury, which comprised an exacerbation of chronic low back pain resulting in no surgical indication. Dr. Coyle rated 2.5% BAW referable to the symptoms arising from the February 4, 2012, injury.

RULINGS OF LAW

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund*, 352 S.W.3d 604, 608 (Mo. App. W.D. 2011) (internal quotation marks and citation omitted). The Fund is a creature of statute, and benefits from the Fund are awarded only if a claimant proves that under §287.220.1 RSMo. he is entitled to such benefits. To prevail against the Second Injury Fund for permanent total disability, the employee must show: (1) A compensable work injury resulting in permanent partial disability; (2) that at the time of the work injury, the employee had a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment; (3) that the compensable injury and the pre-existing

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

permanent partial disability combine together to result in permanent total disability; and (4) that the claim was filed within the statute of limitations. § 287.220.1.

A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W.2d 789, 793 (Mo. App. S.D. 1992). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo.App. E.D. 1999). "Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 277 (Mo.App. S.D. 1996).

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo Highway and Transportation Commission*, 222 S.W.3d 322, 331, (Mo.App. S.D. 2007) Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo.App. E.D. 2008). The weight to be given the expert's opinion on medical causation is within the sole discretion of the [fact finder]. *Id.* at 458. The [fact finder] is the sole judge of the weight of evidence and credibility of witnesses. *Id.* The Administrative Law Judge is free to disbelieve the testimony of any witness, even if there is no contrary or impeaching evidence. *ABB Power T&D Company v. Kempker*, 236 S.W.3d 43, 51-52 (Mo.App. W.D. 2007). Thus, the ALJ is free to accept or reject any evidence, including expert evidence. *Id.*

Claimant's work activities caused her medical condition and disability

The competent evidence before the Court shows Claimant was working in the emergency room at Missouri Baptist Hospital of Sullivan on February 4, 2012, attempting to help a 650 pound, patient take off his pants. He fell on her, striking her low back with his knee.

Dr. Volarich testified Ms. Caldwell suffered an extensive injury to her low back in that accident. He opined her prior thoracic spine disc herniation were increased in size, as were disc herniation in the upper portion of her lumbar spine.

Dr. James Coyle testified that the disc protrusions in Ms. Caldwell's mid and low back had progressed since her last study years before. He said any one, all, or none of those findings could have been caused by the accident in February 2012. He said it would be speculation to offer a definitive opinion. On cross-examination, however, Dr. Coyle did admit Ms. Caldwell

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

suffered an injury to her low back because of the accident in the Missouri Baptist Emergency Room on February 4, 2012. He also agreed the treatment he prescribed including injections, medicine and work restrictions were due to the work injury. Finally, he ascribed permanent disability to that work injury, opining the permanent partial disability (PPD) was causally related to the February 4, 2012, accident.

Claimant has further proven by clear and competent evidence she has a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment. This is shown by her various injuries over the years working as a nurse.

Claimant, however, has failed to meet her burden she is permanently totally disabled because of her work-related injury. Claimant suffered a severe lumbar strain. The Court finds the testimony of Dr. Coyle and Dr. Hurford to be more persuasive. Claimant elected to have low-back surgery that was ill advised. It was this subsequent elective procedure, which has caused Claimant's current disabling condition. Furthermore, the Court is not persuaded Claimant is unable to find employment, even in other areas related to the medical field, which could support her current health restrictions.

The Court does not find Claimant to be credible regarding her testimony. There is no doubt Claimant suffered a work-related injury. However, her elective subsequent surgeries resulted in the current ideations of pain, discomfort and weight lifting restrictions. The Court was not persuaded these, in any substantial way, are a bar to her future employment, especially in medical support opportunities. Claimant is well educated and well trained and has, therefore, failed to show she is not employable, especially since after her accident of February 2012, she worked full time in the relevant medical support community.

SIF Liability

Once liability for an injury is established, the Court must determine the amount or degree of injury attributable to the Second Injury Fund. In the present case, Claimant has previously settled her claims against the employer, and as such, the Court finds those amounts to be appropriate for calculation of SIF liability (Claimant's Ex. 20) with a load factor of 15%. All preexisting injuries must be considered whenever calculating the amount of compensation for which SIF is liable. *Treasurer v. Witte*, 414 S.W. 3d 455 (Mo. banc, 2013).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-007825

PRIMARY INJURY

Low Back(body as a whole BAW)

400 level x 22.5%

90 weeks

SECOND INJURY FUND

Low Back (BAW)

400 level x 12.5%

50 weeks

Right Knee

160 level x 22.5%

36 weeks

Left Knee

160 level x 17.5%

28 weeks

Right Shoulder

232 level x 30%

69.6 weeks

Left Shoulder

232 level x 30%

69.6 weeks

Neck/Cervical Spine (BAW)

400 level x 50%

200 weeks

Total weeks

543.2 weeks

543.2 weeks x 15% load factor

81.48 weeks

81.48 weeks x 425.19 (PPD rate)

34,644.81

CONCLUSION

The Court finds the evidence presented supports a finding of liability by SIF for

permanent partial disability for $34,644.81.

I certify that on 11-30-18

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

rep

Made by:

Marvin O. Teer, Jr.

Administrative Law Judge

Division of Workers' Compensation

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