Angelina Summers v. Casey's General Store

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 16-019872

**Employee:** Angelina Summers

**Employer:** Casey's General Store

**Insurer:** EMASCO Insurance Company

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

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated. The award and decision of Administrative Law Judge Emily S. Fowler, issued July 3, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms 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 3rd day of April 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 16-019872

Employee: Angelina Summers

I have reviewed and considered all of the competent and substantial evidence on the whole record. I agree with the majority on the award of future medical benefits and the denial of recovery against the Second Injury Fund. However, 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 on the issue of the level of disability.

The employee has the burden of proving all essential elements of her case. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1988). I am not persuaded that the employee has proven she is permanently and totally disabled.

While generally, the Commission gives significant deference to an administrative law judge's credibility findings, in a case such as this, where medical expert testimony was not admitted into the record, the Commission is in an equal position to assess the persuasiveness of the medical experts' reports. I would find the employer's authorized treating physician's (Dr. Alexander Bailey), developed over nearly a year of treatment, after utilizing both conservative and surgical approaches, to be of more value in my assessment than the independent medical examination of Dr. James Stuckmeyer. Dr. Bailey's opinions are further supported by Michelle Sprecker, the vocational rehabilitation expert with 25 years of experience in the field of rehabilitation and job placement. Ms. Sprecker's examination of the employee was more thorough than the employee's expert, in that her aptitude testing approach included the Wide Range Achievement Test. Both Dr. Bailey and Ms. Sprecker found employee was capable of employment at some level in a medium duty position; Ms. Sprecker noting transferable skills to various occupations.

Finally, § 287.190.6 RSMo directs us that "where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests of diagnostic procedures." This is to be contrasted with subjective complaints. As noted by Dr. Bailey, the objective testing performed, through radiographic images, including two MRI's, did not confirm abnormalities that could explain employee's continued pain complaints at the level she asserted.

Nevertheless, I do not doubt that employee has some continuing pain, and for that reason I would not disturb the administrative law judge's ruling regarding future medical treatment.

Given the persuasive evidence that employee is capable of employment in the open market, and taking into consideration the ratings of both doctors, I would find employee has suffered a permanent partial disability of 20% of the body as a whole, referable to the low back.

I would modify the administrative law judge's award on the issue of permanent total disability. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Angelina Summers

Injury No. 16-019872

Dependents: N/A

Employer: Casey's General Store

Insurer: EMASCO Insurance Company

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Date: May 22, 2019

Checked by: ESF/pd

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: March 7, 2016
5. State location where accident occurred or occupational disease was contracted: Knob Noster, Johnson 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? Yes
11. Describe work Employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of her employment, Employee slipped and fell causing injury to her back.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

1. Part(s) of body injured by accident or occupational disease: Body as a whole, low back

1. Nature and extent of any permanent disability: Permanent total disability as to the employer

1. Compensation paid to date for temporary total disability: $10,464.81

1. Value necessary medical aid paid to date by employer/insurer? $110,333.22

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 306.93

1. Weekly compensation rate: 204.62/$204.62

1. Method wages computation: by stipulation

Compensation payable

1. Amount of compensation payable: Employer shall pay to Employee permanent total disability benefits in the amount of $204.62 per week beginning April 7, 2017 for as long as Employee remains permanently totally disabled.

1. Second Injury Fund liability: NA

1. Future requirements awarded: Employer shall provide Employee such medical treatment that will cure or relieve the symptoms of Employee's injury due to her March 7, 2016 accident. This medical care will be in the form of pain management as well as possible future removal or replacement of hardware.

The compensation awarded to the Employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of Keith Yarwood, Attorney for Employee, for necessary legal services rendered.

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Employee: Angelina Summers

Injury No. 16-019872

Dependents: N/A

Employer: Casey's General Store

Insurer: EMASCO Insurance Company

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Date: May 22, 2019

Checked by: ESF/pd

On May 22, 2019, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Angelina Summers, appeared in person and was represented by her attorney, Mr. Keith Yarwood. The Employer/Insurer appeared through counsel, Mr. Thomas Clinkenbeard. The Second Injury Fund appeared through Assistant Attorney General, Ms. Maureen Shine.

The parties stipulated to the following:

1. That the employer, Casey's General Store, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on, March 7, 2016 and was fully insured by EMASCO Insurance Co:
2. That Angelina Summers was its Employee and she was working subject to the law in Knob Noster, Johnson County, Missouri;
3. That Employee sustained an accident arising out of and in the course of her employment;
4. That Employee notified Employer of her injuries as required by law and her claim was filed within the time allowed by law;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

1. That Employer has paid 10,464.81 in temporary total disability benefits and has paid 110,333.22 for medical care;

1. That Employee's average weekly wage was 306.93, making her compensation rate 204.62 for permeant partial, temporary total and permanent total disability benefits; and

1. That Employee reached maximum medical improvement on April 7, 2017.

ISSUES

The issues to be resolved by this hearing are as follows:

1. Whether Employee suffered any disability and, if so, the nature and extent of such disability.

1. Whether the Second Injury Fund is liable to Employee for any disability compensation.

1. Whether Employer must provide Employee with additional medical care regarding ongoing pain management and/or hardware removal or replacement.

FINDINGS

The Employee, Angelina Summers, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Claimant's Exhibit 1 - Report of Dr. James Stuckmeyer with 60 day notice

Claimant's Exhibit 2 - Deposition of Mr. Michael Dreiling

The Employer called Ms. Cindy Robinson, an employee and supervisor of Casey's General Store, and offered the following exhibits, all of which were admitted into evidence without objection:

Employer/Insurer's Exhibit A - Medical Records of Dr. Bailey

Employer/Insurer's Exhibit B - Deposition of Michelle Sprecker

The Second Injury Fund did not call any witnesses but offered the following exhibits, all of which were admitted into evidence without objection:

Second Injury Fund Exhibit I - Deposition of Angelina Summers

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

Based on the above exhibits and the testimony of the claimant and one witness, I make the following findings:

Angelina Summers (hereinafter referred to as Employee) was an employee of Casey's General Store in Knob Noster, Missouri on March 7, 2016 when she was injured. Employee has an 11th grade education. She had average grades. She did not start her senior year as she became pregnant. She does not have a GED. She has no other formal academic or vocational training. She has some basic typing skills and basic ability to use a personal computer. Employee began her employment with the employer in August 2014. She was initially hired as a cook and would work anywhere from 38 to 40 hours a week. She was required to lift between 30 and 40 pounds in her job duties.

While she was working in the course and scope of her employment, Employee slipped on water, fell and struck her head on a bread rack and injured her cervical spine on a metal table. She ultimately landed on the floor and as a result sustained injuries to her cervical spine and her lower back. She immediately reported this to her employer. Employee stated that her current problems include continued back pain which is extremely sharp. In the mornings when she first gets up, it is between an 8 and 9 on a scale of 1 to 10. After she takes her medication, she notes it comes down to about a 6 or 7. The intense pain she feels in the morning occurs approximately two to three times a day. She notes that what makes her pain worse is sleeping, lying in bed, showering, driving, walking, and standing. While riding in a car, she notes that after about 15 minutes the pressure and pain are unbearable. She can stand for about 45 minutes and sit for approximately 30 minutes, she then needs to get up and move around and change position. She can only walk about 20 minutes. She feels she can only lift between 15 to 17 pounds. She cannot bend over to pick things up from the floor.

Employee states that her daily activity includes getting up between 4:00 and 6:00 in the morning. She goes to the restroom which is difficult because she cannot reach around to wipe after she goes to the bathroom. She states she uses kitchen tongs wrapped in toilet paper and uses that as an arm extension to wipe her bottom. This was recommended to her by Dr. Bailey after her surgery. After she lets her dogs out she takes her pain medications and after an hour they finally start taking effect. She lays in her recliner during this time. She showers approximately every two to three days because she cannot stand up for the time it takes her to shower without problems and she has difficulty bathing. If she is not nauseous due to pain, she will eat something for breakfast. She will watch TV throughout the day, but she is constantly going from sitting to standing to walking to laying down. She is unable to keep up with the shows. She drinks coffee because she was told not to take a nap so that her nighttime sleeping would be better. She does note that her nighttime sleeping is very difficult and she only gets approximately two to three hours of sleep but not consistently. She has difficulty dressing. She cannot vacuum or mop. She does small amounts of dusting. She generally does not do the dishes. Rain can make her problems worse. She cannot plant flowers or garden like she used to. She states she rarely goes to social events and basically does not have a life. She attempted to go to Thanksgiving at a relative's house one year but ended up laying down for most of the time period and was not able to socialize with her family.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

Employee noted that she could not return to any of her previous employment as laid out in Dr. Dreiling's report. She cannot return to fast food because she cannot stand all day. She cannot be a press operator on an assembly line as it requires heavy lifting and lots of standing. She cannot be a grocery store cashier as that required standing on her feet for long periods of time. The same goes for a gas station cashier. Working at a liquor store requires her to lift and stand all day. She could not return to the cook job she had due to her rotator cuff surgery but noted that although she lost that job due to her shoulder injury, she did find other work since that time as a cashier doing stocking at the Dollar General. She has also worked at Subway, but she could not do that now because of the constant standing it would require. She worked for Carlisle Van Lines in the file room getting files and scanning paperwork for the truckers. She could not do the work that was required, especially at the end of year as it required lifting heavy boxes. She could not do this job now because it required standing and lifting throughout the day. She noted that she has dropped a gallon of milk and spilled it because lifting a gallon of milk causes pain that goes up into her shoulder and down back into her arm. She also noted that she used to go fishing which was one of her favorite things but she cannot fish anymore as she cannot stand for more than 30 minutes.

On cross-examination by the employer, she noted she considers herself permanently disabled. She admitted she signed a claim for compensation on June 13, 2016 noting that she was permanently totally disabled prior to any extensive medical care. She admitted that she spent some of the time with Dr. Bailey talking about her work status. She admitted that she stated to him that she was completely incapacitated. She admitted she had talked to him and noted that her leg pain was gone after surgery and she was happy that the surgery had helped her leg pain. She admitted they discussed the functional capacity evaluation and she admitted to stating that she knew it would be difficult for her to complete. She admitted that her pregnancy was what kept her from graduating from high school. She also admitted that she worked for Carlisle Van Lines while she was taking hydrocodone.

On cross-examination by the Second Injury Fund, Claimant admitted that the problems she had included difficulty sleeping, standing, walking, sitting, riding in a car, problems with everyday activities of living, and now depression. These were all due to the March 7, 2016 injury. She stated she had no problems like this prior to that injury. She noted she is never currently pain-free and that the back pain wakes her up. Prior to this incident she was sleeping through the night. She noted that if she had not had the injury she would still be working and that the injury on March 7, 2016 is what is keeping her from working.

On redirect examination, she noted that she signed the claim after she had attempted accommodated duty in April and May and after Dr. Bailey stated she could not work. She noted that if Dr. Bailey's surgery had been completely successful and had fixed the pain in her back she would have gone back to work.

In reviewing her medical records it appears she was initially seen by Dr. Schultz at Western Missouri Medical Center Emergency Department. According to the records, Employee had a transient loss of consciousness. Employee was assessed as having a closed head injury along with symptoms of spasms of the paraspinal muscles. She was discharged from the

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

emergency room with prescriptions of Narco, cyclobenzaprine and ibuprofen. On March 25, 2016 she was seen in consultation at US Health Works by Harriet Schutter. At that time, Employee was complaining of pain to the cervical spine, thoracic spine, and especially in her lower back region. All X-rays taken of the cervical, thoracic, and lumbar spine revealed no evidence of acute abnormalities. She was assessed as having a head contusion, cervical contusion, and thoracic and lumbar contusion/strain. She was given an MRI which noted that she had mild degenerative changes at the L4-5 and broad-based disc bulge at L4-5, which extended to the left and resulted in mild encroachment on the left neural foramen. On May 5, 2016, she was seen in consultation at Premier Anesthesiology and Pain Clinic. She underwent epidural injections at that time.

She was ultimately seen by Dr. Alexander Bailey on May 24, 2016. Dr. Bailey's initial diagnosis was possible sacroiliac joint dysfunction, possible piriformis syndrome, possible direct sciatic nerve contusion, and transitional lumbar spine with evidence of degenerative disc disease versus traumatic disc disease. Dr. Bailey felt that the prevailing factor for the need for additional medical treatment was due to the work-related condition of the fall which occurred in March 2016. Dr. Bailey recommended conservative initial treatment optimizing medication management and prescribed hydrocodone as well as a Medrol dose and muscle relaxers. He also felt that Employee warranted electrodiagnostic studies. He released Employee to only light-duty status at that time. On June 10, 2016, Employee underwent a right sacroiliac injection. Employee also underwent a repeat MRI on June 16, 2016 which revealed a broad-based posterior disc bulge at L4-5 extending to the left, resulting in mild effacement of the left neural foramen. On June 21, 2016, Dr. Bailey saw Employee again and noted that Employee was absolutely and completely incapacitated and miserable. He noted that the Employee had intractable low back pain as well as right leg pain along with numbness and tingling over wide distribution in her lower extremity. He felt at that time that Employee would not be able to continue under light-duty status. He ordered electrodiagnostic studies which were unremarkable for any peripheral or central neurological condition with no evidence of radiculopathy.

Ultimately, Employee underwent surgical repair for complete anterior radical discectomy at L5-S1, partial corpectomy, inferior portion of L5 and superior portion of S1. Instrumentation was placed at the L5-S1 level and ultimately he performed a lumbar spinal decompression at L5-S1. Postoperatively Dr. Bailey noted that Employee was pleased with the operative procedure and related that her leg symptoms had resolved. Dr. Bailey assessed Employee as being status post anterior/posterior lumbar spinal fusion with excellent clinical and radiographic outcome. On November 7, 2016 Dr. Bailey noted that Employee had 100% complete resolution of her leg symptoms but continued to have back pain. At that time, Employee was prescribed OxyIR for her pain and physical therapy. Dr. Bailey continued to treat Employee throughout 2016 and into 2017. Ultimately on March 23, 2017, Employee indicated she was only 25 to 30% better than she was from a preoperative status. At that time, Dr. Bailey had nothing further to offer her from surgical standpoint and he felt a functional capacity evaluation was appropriate.

The functional capacity evaluation was performed on March 29, 2017. The ultimate result was that the effort was invalid due to the Employee performing inconsistently during a repeated measures protocol. It is noted they stated that Employee failed 5 out of 7 validity criteria during

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

the hand strength assessment and there is an absence of correlation between lifts of unmarked steel bars and corresponding lifts on the lever arm. In addition, they noted extreme overt pain behaviors including grimacing and groaning. There is also a note that the pain questionnaires were high for subjective pain reports and behaviors and that the Waddell testing showed positive in 2 of 5 categories. Despite the report noting the result as invalid, it was determined that the Employee meets material handling demands for medium demand vocation. However, because they believed Employee failed to give maximum voluntary effort that it was undeterminable at that time what safe maximum lifting capabilities or functional capabilities Employee had.

Employee offered the medical report of Dr. James Stuckmeyer. After reviewing her medical records and examining Employee, Dr. Stuckmeyer determined that Employee suffered a 35% permanent partial disability to the body as a whole. He also noted restrictions based upon his examination and the medical records. Employee should have no prolonged standing or walking greater than tolerated, no repetitive bending, lifting or twisting of the lumbar spine, no lifting below the waist height to exceed 15 to 20 pounds on an occasional basis and above waist height to exceed 10 pounds on an occasional basis, and no driving of commercial vehicles and no working around hazardous equipment or at heights due to narcotic utilization. Dr. Stuckmeyer also noted that Employee suffered a pre-existing injury to her right shoulder which he evaluated at 21% permanent partial disability to the right shoulder. He also felt that due to the significant pre-existing disabilities in combination with the most recent workplace accident, he would opine that the simple arithmetic sum of these disabilities does not equate to the disability to the body as a whole and would render a 15% multiplicity factor. He felt it was important due to the aforementioned work restrictions that Employee undergo a vocational assessment to determine her employability in the open labor market. He ultimately felt that there were no additional diagnostic studies warranted nor additional surgical intervention. He did feel that Employee would require lifelong pharmacological management for utilization of anti-inflammatory medications, muscle relaxants, and pain medication.

Employee also offered the deposition and vocational report of Mr. Michael Dreiling. After reviewing all of Employee's prior work history and reviewing her medical records and testing, Mr. Dreiling determined Employee's vocational profile as being an individual who at the time was 39 years old, completed 11th grade 22 years ago, does not have a GED, has a limited capacity for further academic or vocational retraining programs, has basic typing and computer knowledge, has a work history of performing entry-level jobs that were learned on the job, and has spent the majority of her work career performing work that required the ability to perform prolonged standing and walking with limited experience with working in a more sedentary environment and a prior work injury to the dominant upper extremity which caused her to lose employment. Further, she utilizes prescription pain medication. She has additional difficulties due to her back injury with medical restrictions for her back condition ranging from medium work to a restricted range of light work. She has medical restrictions recommending avoidance of prolonged standing or walking more than tolerated, ongoing pain issues in the back area, difficulty sitting for more than 30 minutes or being on her feet for more than 40 minutes. She has poor sleep at night because of ongoing pain issues, utilizes a recliner throughout her waking hours for ongoing pain issues and uses hydrocodone for ongoing pain. She has difficulties with

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

driving more than 30 minutes at a time with considerable difficulties performing activities of daily living and has been unable to return back to her job.

Mr. Dreiling felt that based upon Dr. Bailey's determination that Employee could function at a medium level work, she would be able to return to work in the labor market including working in fast food employment type jobs which she previously performed. However, based upon Dr. Stuckmeyer's recommendations of restrictions along with the Employee's description of her ongoing pain issues and the impact that pain has on her level of functioning, he felt that returning to competing work in the open labor market was highly questionable. He reviewed the local labor market in Knob Noster and determined that the types of jobs available for Employee would require her to exceed the medical restrictions that had been recommended by Dr. Stuckmeyer. He noted that although Employee is a younger individual, she has always relied on good physical abilities to work at the various jobs in the labor market. Based upon her descriptions of the difficulties she has dealt with as a result of her injury and the surgery to her dominant upper extremity shoulder area as well as the additional difficulties with injury to her back and surgery on her back, he felt that she could not realistically return to the type of work that she has performed when following the medical restrictions of Dr. Stuckmeyer. He felt that given Employee's description of her significant ongoing pain issues, her limited educational background, her work history of performing entry-level physically oriented jobs and her ongoing difficulties with sitting or standing for any length of time, referral to the State Vocational Rehabilitation Agency for any retraining services or placement services would not appear to be warranted at this time. He ultimately noted that Employee's vocational ability to return to work in the labor market would vary depending upon the medical restrictions followed as well as consideration for her ongoing physical functioning level which is presently at a less than sedentary activity level. He felt the based upon the vocational profile of Employee and the more restricting medical restrictions recommended by Dr. Stuckmeyer that Employee is essentially and realistically unemployable in the labor market.

Employee also offered a subsequent report of Dr. Stuckmeyer dated March 11, 2018. In this report he noted that he recently reviewed the vocational assessment performed by Mr. Dreiling and stated that based upon the vocational profile and medical restrictions Employee was essentially and realistically unemployable in the open labor market. He noted that while it was true that Employee did have a pre-existing work injury involving her right shoulder as outlined in his previous report that despite such injury Employee did return to the open labor market without work restrictions. He felt that all of the work restrictions as outlined in his prior report of August 10, 2017 were a direct, proximate, and prevailing result of the injury occurring on March 7, 2016. He then felt that Employee was permanently and totally disabled from the open labor market based upon the accident which occurred on March 7, 2016 considered in isolation alone.

Employer offered the testimony of Cindy Robinson. Ms. Robinson works for Casey's General Store as an area supervisor and has 11 stores which she supervises. She was Employee's direct store manager at the time of Employee's injury in March 2016. She noted that the work that Employee was given when she was returned on light duty allowed for a sit/stand option. She stated that upon returning to work on light duty, problems arose when Employee was moved to a different spot from her initial job at the sub station. She was moved to the cash register. A stool

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

was provided at the cash register because Employee needed to alternate between sitting and standing. She admitted the majority of workers at Casey's were female and middle-aged and Casey's accommodates Employee's with problems. When asked if she felt she could accommodate Employee's restrictions as set out, including no prolonged standing or walking, no bending or twisting of the spine, no lifting below the waist 15 to 20 pounds on occasion, no lifting above the waste at 10 pounds, no commercial driving or working around hazardous equipment and no working at heights, she felt that these restrictions could be accommodated at Casey's. She noted that she saw Employee at a restaurant called the Rib Crib in Warrensburg. She noted that she was at the restaurant for approximately 45 minutes. She could not say if Employee would alternate between sitting and standing while at the restaurant.

On cross-examination by the Employee's attorney the witness noted that she felt Employee was honest and hard-working, willing to work and worked 35+ hours per week. She had no concerns about her diligence or work ethic. She noted that while Employee was working at the sub station she could sit for two hours straight as she could go back in the kitchen and simply cut vegetables and do other prep work. However, she noted she did not see Employee 100% of the time. She does not actually know how or why Employee was switched to the cashier position. She did know that the cashier position was required to get cigarettes, chewing tobacco and lottery tickets. Because of this, even though she was provided a stool, there was no guarantee that Employee could sit for a complete two hours uninterrupted without having to get up and get product for customers. She also noted that she was not watching the Employee the entire time she was at the restaurant. She confirmed that she could not accommodate Employee if she were in a recliner and that if Employee's hygiene was not good enough to keep her from having body odor. On redirect, she noted that even based on all of the restrictions as listed previously that she could rehire Employee. On re-cross by the Employee's attorney, she confirmed that she still could not accommodate Employee if the Employee would need a recliner throughout the day. She also felt that if there was excessive absenteeism that that could become a problem for employment. Finally, she stated that working at Casey's is in fact harder than fishing.

The employer offered the medical records of Dr. Bailey as have been outlined previously. Also included is an April 4, 2017 report which notes that the functional capacity examination was obtained on March 29, 2017 and was deemed to be invalid. Dr. Bailey ultimately believed that Employee had some degree of work function disability. He felt she was capable of medium physical demand level and was capable of lifting 50 pounds or less. He noted that based upon all the information, including X-rays and MRIs that Employee sustained a fall that impacted her lumbar spine consisting of discogenic alteration and a low-grade disc herniation. He ultimately determined that Employee sustained a 10% permanent partial disability to the body as a whole as it relates to her accident of March 7, 2016.

Employer also offered the vocational report of Michelle Sprecker as well as her deposition. After reviewing Employee's medical records and obtaining her own vocational assessment, Ms. Sprecker concluded that based upon the restrictions identified by Dr. Bailey it would not be unreasonable for an employer in the normal course of business hiring individuals to perform work as it is usually performed to realistically hire Employee. She further felt that even

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

based upon the restrictions identified by Dr. Stuckmeyer it would not be unreasonable for an employer in the normal course of business hiring individuals to perform work as it is usually performed to realistically hire Employee. However based upon Dr. Stuckmeyer's additional correspondence and report dated March 11, 2018, she felt that it would be unreasonable for an employer in the normal course of business hiring individuals to perform work as it is usually performed to realistically hire Employee.

The first issue to be determined herein is whether Employee suffered any disability from her March 7, 2016 injury and, if so, the nature and extent of the Employee's disability. In order to determine this, the Court must review the records, reports and depositions of the experts herein and determine their credibility. It is also important to assess Employee's credibility with regards to her statements of pain and the problems she has in her daily activities of living.

In Dr. Stuckmeyer's first report, he noted specific work restrictions he would consider appropriate based upon Employee's physical problems of chronic intractable low back pain after decompression surgery with instrumentation fusion. He also noted she had bilateral sacroiliac dysfunction with marked limitations of her daily activities. Based upon his review of her medical records, medical history, his exam of her, as well as his discussions with her, he determined that the Employee should not have any prolonged standing or walking greater than tolerated; no repetitive bending, lifting or twisting of the lumbar spine; no lifting below waist height to exceed 15 to 20 pounds on an occasional basis and above waist height to exceed 10 pounds on an occasional basis. He also determined she should not drive any commercial vehicles nor should be working around hazardous equipment or at heights due to her narcotic utilization. He also determined that she should undergo a vocational assessment. In his follow-up report of March 11, 2018, he reaffirms his restrictions and determines that the Employee is permanently and totally disabled from working in the open labor market based upon her accident which occurred on March 7, 2016 in isolation alone. This is after he had reviewed Mr. Dreiling's commentary that he believed Employee was essentially, realistically unemployable in the open labor market. He also noted that although Employee had a pre-existing right shoulder injury that she did return to the open labor market without any work restrictions. He confirmed that the restrictions that he placed upon her as noted above were the direct, proximate and prevailing result of the injury which occurred on March 7, 2016.

In reviewing Mr. Dreiling's report and deposition, he does state in his report that he believed that Employee was permanently and totally disabled. It appears he relates this disability to the combination of her pre-existing shoulder injury as well as her subsequent back injury. However, in summary, he states that, "based upon the vocational profile of this individual and the more restricting medical restrictions recommended by Dr. Stuckmeyer, she is essentially and realistically unemployable in her labor market." When looking at Dr. Stuckmeyer's restrictions in his subsequent report, these restrictions were strictly based upon her last accident. In Mr. Dreiling's deposition, he is asked by employer's counsel if Employee was disabled due to her combination of injuries. He replied first in the affirmative. However, when cross-examined by Employee's attorney, who pointed out that the restrictions Dr. Stuckmeyer set out, on which he based his determination, were based upon the last accident alone, he then confirmed that in fact,

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

yes, Employee would be permanently and totally disabled from the last accident alone without consideration of the shoulder injury.

In reviewing Dr. Bailey's medical records and final report, it appears that he ultimately determined that Employee only suffered a 10% permanent partial disability to the body as a whole as it relates to her injury of March 7, 2016 despite her extensive surgery. He bases his determination partially upon a functional capacity examination which he notes was deemed to be invalid. He notes that she did not show full voluntary effort and was inconsistent. Employee failed 5 out of 7 validity criteria for hand strength. Dr. Bailey states: "I have been forced to utilize a combination of functional capacity examination population statistics for this level of interventional treatment and care. It is possible that this is a malingering manipulative pain effort but cannot be fully defined or determined." This Court is not exactly certain what Dr. Bailey is talking about, but it appears he is equivocal on the reason for the invalid FCE and that he is making a determination with regard to Employee's work status, noting that she is capable of doing medium duty status without having a clear understanding of her functional capacity. It is also important to note that with regard to the functional capacity assessment there is a determination that Employee had a positive Waddell's testing. However, when looking at the report, it appears that she only failed 2 out of 5 categories. In order to have a positive Waddell's testing, you need a minimum of 3 or more categories failed. It is also interesting to note that throughout Employee's physical therapy she had a number of Waddell's tests performed. There is absolutely no showing that she had a positive Waddell's testing on any of those prior Waddell's testing by the physical therapy department who was performing her ongoing care. It is also noted that under the FCE determination of an invalid report, Employee showed extreme overt pain behavior including grimacing and groaning. It is interesting to note that she acted this way throughout her entire physical therapy. There are numerous notations of facial grimacing and groaning throughout her physical therapy. Despite such overt expressions of discomfort and pain, she did make progress and there was never a notation in the physical therapy reports that she was giving less than her best effort other than she may have had reduced effort due to pain.

It is also noted throughout Dr. Bailey's treatment of Employee that he appears to make numerous editorial comments within her medical records. In his initial consultation on May 24, 2016, he notes that Employee's "pain syndrome and overall clinical presentations are off the charts and beyond most normal anatomical findings. It is difficult to accurately, from a clinical basis, diagnose this patient, or using objective imaging studies. The best I can recommend at this time is the patient has sustained a fall and apparently has developed subjective pain condition that is otherwise difficult to determine from an anatomical basis." Thereupon, he continues conservative treatment including medications and physical therapy. In additional records, he notes that Employee has high pain complaints despite mild to low-grade moderate objective findings. In reviewing his discussion with her, he also notes that the Employee indicates she was incapacitated and nonfunctional and that this was 50% of the entire discussion. He notes that the Employee was basically forcing him to take her off work because she was unable to accommodate even the lightest duty. He notes he felt compelled to take the patient off work to even move forward from that day's evaluation. He also notes that "the patient is certainly appearing to have intractable symptomatologies without response to conservative modalities. I question whether surgical intervention is going to have good outcome." He also makes a

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

comment in his July 19, 2016 record that after reviewing the possibility of surgical relief and that she may only receive 50% pain reduction, she was willing to proceed. After making these comments, which appeared to question Employee's credibility concerning her pain complaints, Dr. Bailey goes forward with not only fusion, but an anterior-posterior fusion with complete anterior radical discectomy, partial corpectomy inferior portion of L5 and superior portion of S1 vertebral bodies, approximately one third vertebral body height, application of interbody fusion devices, bone grafting, posterior instrumented fusion with bilateral pedicle screws and rods at L5-S1 bilaterally, as well as intertransverse process and intra-facet joint fusion and cortical autograft and lumbar spinal decompression at L5-S1. So despite his concern about her credibility regarding her pain symptoms, Dr. Bailey went forward with what could be considered an extremely aggressive and invasive surgical procedure to fuse Employee's spine at the L5-S1 level. Also, interestingly, it appears that after the surgery Employee did state she obtained relief from her right leg radicular pain. Further, she did get some relief with her back pain. And over the course of her physical therapy, she did gain some level of pain relief and mobility but unfortunately, not to the point where she felt she could return to her pre-injury level of ability.

In the report and deposition of Michelle Sprecker, she found that Employee was able to return to gainful employment. She also relied upon Dr. Bailey's opinions and records but did not review any other medical records or physical therapy reports. She noted that Employee was not able to perform the entire vocational evaluation in one setting but had to take a nearly half-hour break and, ultimately, Ms. Sprecker had to finish the interview by phone. She admitted that if Employee had to adjust for sitting and standing and bending that that could be a barrier to employment. Further, she admitted that if the Employee had to lay down on a recliner during the day that she would not be able to maintain employment. It is interesting to note that Ms. Sprecker stated that despite Dr. Stuckmeyer's restrictions employee was employable in the open labor market. However that based upon his March 11, 2008 report, she determined it was unreasonable to expect employee to be employable in the open labor market. However in reviewing Dr. Stuckmeyer's restrictions in both reports they are the same. The only difference in Dr. Stuckmeyer's March 11, 2018 report is that he clarified the restrictions he set out were specifically attributed to her last accident of March 7, 2016 alone.

In reviewing Employee's hearing testimony, her deposition, as well as the medical records, it appears that she has been consistent throughout this case. It is noted that she has consistently complained of back problems and leg problems to Dr. Bailey until she was finally able to obtain surgery which did bring relief from her right leg radiculopathy. She was consistent in her complaints to the physical therapists. Her physical therapy spanned over 12 weeks at two different times and her complaints of pain and difficulty doing certain maneuvers was consistent throughout. Her testimony at court correlated with her testimony in her deposition. In her testimony, she notes that her day consists of getting up between 4:00 and 6:00 in the morning depending on her pain level. It is difficult for her to go to the restroom and care for herself. She describes using tongs wrapped in toilet paper to wipe herself. These are things that she has described throughout her care to her care providers. Her description of her daily activities of living have been consistent throughout her testimony. Based upon these findings this Court determines Employee's testimony to be credible.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

After reviewing the medical reports, medical records, testimony of experts as well as the Employee's testimony, this Court finds that Employee is permanently and totally disabled. In reviewing this evidence, it appears that Dr. Stuckmeyer's determination that the Employee is permanently totally disabled and that this is due to her accident of March 7, 2016 is more credible than Dr. Bailey's determination that Employee only suffers a 10% permanent partial disability. Dr. Stuckmeyer's determination regarding the restrictions he placed upon Employee correlate with not only Employee's testimony but also with the medical care she received as well as the extensive physical therapy she received. In reviewing the physical therapy records, it is clear to this Court that Employee worked hard to regain function and that although she did regain some physical function she eventually plateaued due to her pain caused by her back injury. This Court finds Dr. Bailey's determinations less credible. Although he was the treating physician, it appears based upon his editorial comments in his medical records that he either did not believe or had a certain prejudice with regard to Employee's complaints. And even despite this uncertainty of the validity of Employee's complaints, he went through with a very aggressive and invasive surgical procedure to treat Employee. His description and disbelief of Employee does not correlate with his subsequent medical treatment and actions. Further, with regard to Ms. Sprecker's determination that Employee is employable in the open labor market, it appears that she based this determination on Dr. Bailey's report which this Court finds less than credible. Also, this Court would point to the fact that Dr. Bailey also made his determination based on the functional capacity evaluation which in and of itself states that it is invalid and was unable to determine Employee's actual physical ability. With regard to the testimony of Ms. Robinson, she stated she could accommodate Employee's restrictions as set out by Dr. Stuckmeyer. However it is clear she was unable to do this when Employee was on light duty prior to her surgery, as Employee was not able to have the option to sit for as much as 2 hours if needed. Further as this Court determines that Employee is credible in her testimony and has stated that she needs to recline throughout the day, it is clear that Ms. Robinson could not accommodate her in any jobs that Caseys would have available, as they cannot accommodate someone who needs to recline off and on throughout the day.

Wherefore this Court finds Employee permanently totally disabled due to her last accident of March 7, 2016 alone. Employer is therefore liable to Employee for permanent total disability benefits. Employer shall pay to Employee permanent total disability benefits beginning April 7, 2017 at the rate of $204.62 per week for as long as Employee remains permanently and totally disabled.

The next issue to be determined is whether the Second Injury Fund is liable to the Employee for any disability compensation. Due to the fact that this Court has found that Employee was permanently and totally disabled solely from her last accident of March 7, 2016, this Court finds that the Second Injury Fund is not liable to Employee for any benefits herein.

The final issue to be determined herein is whether the Employer must provide the Employee with additional medical care. The Employee has specifically requested additional medical care in the form of pain management and/or hardware removal or replacement. After reviewing the medical records, it is clear that Employee suffers continued pain due to her injury of March 7, 2016. Dr. Bailey does not address the issue of future medical anywhere in his

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**Injury No: 16-019872**

reports. However, Dr. Stuckmeyer notes that he does feel that she will require lifelong pharmacological management for utilization of anti-inflammatory medications, muscle relaxants, and pain medication. Employee states that she does take pain medications to help her throughout her day. Wherefore, it is reasonable to determine that Employee will need future medical care in the form of pain management. This Court hereby orders Employer to provide such medical treatment that will cure or relieve the symptoms of Employee's injury due to her March 17, 2016 accident. This medical care will be in the form of pain management as well as possible future removal or replacement of the hardware.

The compensation awarded to the Employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of Keith Yarwood Attorney for Employee, for necessary legal services rendered.


Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation

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