Lettie Moore v. Bi-State Development Agency

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

**Employee:** Lettie Moore

**Employer:** Bi-State Development Agency (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 and considered the whole record, we find that the award of the administrative law judge denying 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.

The administrative law judge ruled that a report from Dr. J.H. Morrow, Jr., was not admissible pursuant to § 287.210.7, RSMo, because Dr. Morrow was not available for cross-examination. However, a summary of Dr. Morrow's report by another medical practitioner was admitted into evidence without objection.

The administrative law judge also ruled that the Second Injury Fund is not liable for benefits because employee did not establish a 50-week permanent partial disability that was a hindrance or obstacle to employment and employee did not establish synergy.

On January 7, 2020, employee filed an application for review raising the sole issue: "The Administrative Law Judge was wrong to not allow Certified Division of Workers' Compensation Records into evidence."

**Section 287.210.7, RSMo, provides:**

1. The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The party offering the report must make the physician available for cross-examination testimony by deposition not later than seven days before the matter is set for hearing. Nothing herein shall prevent the parties from agreeing to admit medical reports or records by consent.

(emphasis added).

MNKOI 0000811646

Injury No. 08-072414

Employee: Lettie Moore

- 2 -

In this matter, Dr. Morrow was not subject to cross-examination because he was deceased. Therefore, the provisions of § 287.210, RSMo, were not met.

Section 287.210.7 eliminates the hearsay objection to medical records in workers' compensation proceedings. However, a claimant's failure to comply with Section 287.210.7 subjects medical records to the foundational requirements for the introduction of the documentary evidence as business records, as well as objections such as relevancy or an inadequate source of information.

Burchfield v. Renard Paper Co., 405 S.W.3d 589, 592 (Mo. App. 2013).

Although this is the sole issue on appeal, we do not need to determine whether Dr. Morrow's report should have been admitted into evidence or not. Employee did not appeal the other conclusions in this matter: that the Second Injury Fund is not liable for benefits because employee did not establish a 50-week permanent partial disability that was a hindrance or obstacle to employment and employee did not establish synergy.

Even if we conclude that the administrative law judge should have admitted Dr. Morrow's report into evidence, the existence of the report in evidence does not per se establish a 50-week permanent partial disability that was a hindrance or obstacle to employment. Furthermore, Dr. Morrow's report does not per se establish a synergistic effect with the primary injury. These other issues are controlling.

Absent an appeal to these controlling issues, we are not persuaded to alter the decision of the administrative law judge and deny the claim. All other issues are moot.

**Decision**

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

The award and decision of Administrative Law Judge Suzette Carlisle, dated December 19, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 15th day of May 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

S. Kiki Curls

Attest:

Shalonn K. Curls, Member

Secretary

Employee: Lottie Moore

Injury No.: 08-072414

Dependents: N/A

Employer: Bi-State Development Agency (Settled)

Additional Second Injury Fund

Insurer: Self-Insured (Settled)

Hearing Date: October 1, 2019

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC: MK

1. Are any benefits awarded herein? No
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: February 2, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis City
6. Was 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 driving a bus for work, Claimant developed a blood clot in her right leg.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right hip
14. Nature and extent of any permanent disability: 44.5 % permanent partial disability of the right hip.
15. Compensation paid to-date for temporary disability: $\ 9,542.61
16. Value of necessary medical aid paid to date by employer/insurer? $\ 726.08

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

Employee: Michael Butler

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

1. Employee's average weekly wages: Sufficient for the rate listed in number 19 below

1. Weekly compensation rate: $389.04

1. Method wages computation: Stipulated by the parties

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

Settled with the Employer/Insurer prior to hearing.

1. Second Injury Fund liability: No

**TOTAL:**

NONE

1. Future requirements awarded: N/A

Said payments to begin 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 for N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Gary Matheny.

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On October 1, 2019, Ms. Lettie Moore ("Claimant") appeared in person before the undersigned administrative law judge, for a hearing at the Missouri Division of Workers' Compensation ("DWC"), St. Louis office. Claimant seeks permanent partial disability benefits from the Second Injury Fund ("SIF").

Attorney Gary Matheny appeared on behalf of Claimant. Assistant Attorney General ("AAG") David Drescher appeared on behalf of SIF. The record closed on October 1, 2019 after presentation of all the evidence. Memorandums of law were due to the court by October 29, 2019. Court Reporter Maria Krawat transcribed the court proceedings.

Prior to the start of the hearing, Bi-State Development Agency, the self-insured Employer, settled their claims with Claimant for 44.5 percent permanent partial disability ("PPD") of the right hip on March 19, 2012, and did not participate in the hearing.

At the start of the hearing, Claimant voluntarily dismissed the following cases that were set for hearing; Injury Numbers 13-084870 and 15-092890.

Venue is proper in St. Louis City and jurisdiction properly lies with the DWC.

The parties stipulated that on February 2, 2008:

1. Claimant worked for the Employer;
2. Claimant sustained an occupational disease injury that arose out of and in the course of his employment in St. Louis City;

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

1. Employer and Claimant operated under the Missouri Workers' Compensation Law;¹

1. Employer's liability was fully self-insured;

1. Employer had proper notice of an injury;

1. A Claim for Compensation was timely filed;

1. Claimant's average weekly wage was sufficient for a compensation rate of $389.04 per week for permanent PPD benefits;

1. Employer paid medical benefits totaling 9,542.61 (17 weeks); and

1. Employer paid medical benefits totaling 726.08.

ISSUES

At the start of the hearing, the parties identified two issues for disposition:

1. Is Dr. Morrow's report dated December 12, 1989 admissible as part of the DWC records contained in Claimant's Exhibit 2? Answer: No.

1. What is the nature and extent of SIF liability for PPD benefits, if any? None.

EXHIBITS

Claimant offered the following exhibits that were admitted into evidence without objection:

Exhibit 1 - Deposition of Dr. Shawn Berkin

Exhibit 2 - DWC certified records²

Exhibit 3 - St. Mary's Hospital records dated March 2008 to November 2010

Exhibit 4 - SSM Neurosciences St. Mary's Hospital, January 2016

Exhibit 5 - St. Louis University Hospital records, 2015 to 2017

AAG Drescher raised a hearsay objection to the admission of Dr. J.H. Morrow's report dated December 12, 1989 because Dr. Morrow is deceased and was never cross-examined. Claimant asserted the records are certified DWC records. Therefore, Dr. Morrow's report should be considered for the weight of the evidence, and not the admissibility of the report. The objection was preserved and the parties were asked to brief the issue. Claimant's Exhibits one through five were admitted. After a review of the evidence, Dr. Morrow's report was excluded as discussed in this award.

Any marks or highlights contained in the above exhibits were made before they became a part of this record and were not made by the undersigned administrative law judge.

¹ Any references in this award to the Employer also refers to the Insurer unless otherwise stated. All references in this award are to the 2005 Mo Rev Stat., unless otherwise stated.

² Exhibit 2 was admitted except for Dr. Morrow's report. The report was retained but not admitted.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

The SIF offered no Exhibits.

Around 2004, Claimant testified she sustained a herniated disc at C6-C7 while driving a bus for work. Claimant testified she developed headaches, numbness and tingling in her fingers, limited range of motion of her neck, and swelling in her neck and shoulder. While driving, Claimant needed to turn her body in different directions in order to see. Claimant testified neck symptoms caused her to miss work. She received chiropractic treatment. To relieve pain, Claimant testified she had three trigger point injections, took medication and had physical therapy.

In 2008, Claimant worked as a bus driver for the Employer. She transported customers, collected money, provided customer service, and sat for long periods. On February 2, 2008, Claimant sought treatment for her painful right leg from a chiropractor, two urgent care facilities, and St. Mary's Emergency Department. At St. Mary's, physicians diagnosed a blood clot and Claimant remained in the hospital for eight days. SLUCare provided follow up care that included medication and regular testing. Claimant settled the case with the Employer for 44.5 percent PPD of the right hip.

Residual right leg complaints include pain. She takes Coumadin and wears compression stockings when she sits for long periods.

Claimant testified she was diagnosed with deep vein thrombosis ("DVT") and hospitalized for eight days. On March 26, 2008, St. Mary's Health Center treated Claimant for headaches and a history of DVT.

Claimant received physical therapy for left arm pain from December 2015 to March 2016 and July 2016 to August 2016. St. Mary's Health Center treated Claimant on January 25, 2016 for neck pain radiating into her left arm and hand. EMG and nerve conduction tests were negative.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

Shawn Berkin, M.D., performed the following independent medical examinations ("IMEs"): September 7, 2011, August 4, 2016, December 20, 2017, and August 19, 2019. Dr. Berkin performed earlier IME reports in 1993 and 2008.

In November 2011, Dr. Berkin concluded that sitting and driving a bus for up to nine hours per day, leading up to February 2008, was the prevailing factor that caused a DVT in Claimant's right leg. He rated 40 percent PPD of the right lower extremity at the level of the hip.

In 2016, Dr. Berkin conducted an IME to determine if the Employer was liable for an alleged occupational disease injury to Claimant's left arm in 2015. Dr. Berkin reviewed medical records from 2015, which revealed pain to palpation and muscle spasms at C5-C6 during physical examination. Claimant gave Dr. Alan Spivack a history of bulging discs, arthritis and a herniated disc at C6-C7 impinging on the ulnar nerve root. (No MRIs are in evidence)

Dr. Berkin's examination revealed decreased range of motion of the cervical spine on flexion, extension, right and left rotation, right and left lateral flexion, and tenderness over the paracervical muscles lateral to the upper trapezius. The Spurling's test was negative.

Before Dr. Berkin gave an opinion, he requested more medical records including an MRI scan, other imaging, EMG and nerve conduction studies obtained by Dr. Petzchen, and physical therapy records from St. Louis University Hospital.

In 2017, Dr. Berkin reviewed medical records from St. Louis University Hospital where Claimant treated for left arm pain into her shoulder and neck. He did not re-examine Claimant. Medical records contain a note that Claimant was involved in a motor vehicle accident in June 2015 but she did not receive medical treatment.

Dr. Berkin noted Dr. Petzchen's records contained treatment for non-work-related medical conditions. Further, "Dr. Petzchen" was, in fact, Ms. Marcella Petzchen, a nurse practitioner, not a physician. Dr. Berkin reviewed an x-ray report ordered by Ms. Petzchen on December 7, 2015, which showed no bony injuries, evidence of arthritis, or instability with cervical flexion or extension.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

Ms. Petzchen ordered electrodiagnostic studies in December 2015 based on Claimant's complaints of worsening left arm pain into her shoulder and neck since October 2015. Dr. Berkin reviewed the electrodiagnostic study, which was normal, with no evidence of neuropathy. However, Dr. Berkin concluded cervical radiculopathy could not be ruled out because Claimant's paraspinal muscles were not examined due to Coumadin use.

Dr. Berkin reviewed Dr. Bailey's 2016 records for a neurosurgical evaluation for neck pain into the left arm and hand. Dr. Bailey noted normal EMG and nerve conduction studies, with no radiculopathy. According to Dr. Bailey's records, an MRI revealed straightening of the lordotic curve and degenerative disc disease at every level (the study is not in evidence). Dr. Bailey recommended conservative treatment, smoking cessation and medication. Dr. Berkin did not review an MRI report, so he assumed Dr. Bailey's report referred to the cervical spine because Dr. Bailey did not mention a disc herniation or nerve root impingement.

Dr. Berkin reviewed physical therapy records from St. Louis University Hospital for treatment provided for Claimant's chronic cervical and left shoulder pain in December 2015. In March 2016, Claimant reported "slightly decreased" tightness and radiculopathy in her neck, left shoulder, and upper arm. The therapist determined Claimant did not reach her long-term goal to return to work and she planned to file for disability. Claimant was discharged at MMI from physical therapy with a recommendation for a home exercise program.

Therapy records show Claimant retired in May 2016, with disability. In July 2016, Claimant started physical therapy and had an assessment for functional limitations. However, Dr. Berkin noted therapy records show Claimant missed "many" appointments due to lack of transportation.

After a review of the medical records, Dr. Berkin diagnosed cervical myalgia/myositis and degenerative arthritis of the cervical spine,³ and rated 10 percent PPD of the body for pre-existing degenerative arthritis.

2019 IME

Dr. Berkin performed an IME on August 19, 2019, and discussed Claimant's injuries before November 23, 2015. Dr. Berkin noted Claimant's pre-existing disability dated back to the 1990's, and Dr. Berkin thought it was understandable that Claimant could not remember the details of the disability.

Dr. Berkin wrote he obtained most of Claimant's history about pre-existing disabilities from treatment records, and a review of his earlier IME reports in 1993, 2008 and 2015.

Dr. Berkin based the August 2019 conclusions on Claimant's history and subjective complaints, physical examination, medical records and test results. Dr. Berkin reviewed Dr.

³ As discussed above, the 2015 case was dismissed at the start of the hearing.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

Joseph Morrow's December 12, 1989 IME report for Claimant's history of past injuries to her cervical spine.

**1989** - Dr. Morrow's 1989 IME report referred to Claimant's symptoms to her upper back, neck and both shoulders on June 5, 1989. According to Dr. Morrow, the Emergency Department at Barnes Hospital diagnosed a muscle strain. Dr. Morrow diagnosed a dorsal strain and rated 15 percent PPD of the dorsal spine.

**1993** - a) On January 25, 1993, Claimant injured her neck and back in a motor vehicle accident. She received chiropractic treatment for her back, physical therapy, and medication. Chiropractor Rimmer ordered x-rays of the cervical spine, which were normal. An IME by Dr. Wayne concluded Claimant had achieved MMI and had no permanency.

b) Dr. Berkin examined Claimant in November 1993, with complaints of pain and tenderness to her back and muscle spasms. Physical examination revealed tenderness to palpation on the paraspinal muscles lateral to the cervical column, and a positive Spurling's test. Dr. Berkin diagnosed cervical and lumbar strains and rated 15 percent PPD of the low back.

In addition to medical records, Dr. Berkin reviewed Stipulations for Compromise Settlement contained in the DWC records for the following injury numbers:

1. 88-182102 - 2.5% PPD of the right shoulder, neck and back (DOI: 9-6-88);
2. 89-078147 - 2.5% PPD of the left shoulder, neck and back (DOI: 6-5-89);
3. 93-049726 - 5% PPD of the neck and back (DOI: 1-25-93); and
4. 02-069809 - 7.5% PPD of the neck, 7.5% PPD of the left shoulder.

Dr. Berkin diagnosed pre-existing degenerative arthritis of the cervical spine and rated 22.5 percent PPD of the body as a whole. He further opined the preexisting disability was a hindrance or obstacle to employment or reemployment at the time of Claimant's November 2015 injury to her neck and left shoulder. In addition, a synergistic effect exists between Claimant's pre-existing disability to her cervical spine and her November 2015 injury that resulted in more disability than the individual disabilities. Therefore, a loading factor should apply.

During deposition, Dr. Berkin testified Claimant's degenerative arthritis of the cervical spine existed before the 2008, 2013 and 2015 injuries. He further testified the pre-existing degenerative arthritis of Claimant's neck combined to create more disability than the simple sum with either Claimant's 2008, 2013 or 2015 injuries.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

SIF objected to the admission of Dr. Morrow's December 12, 1989 rating report contained in DWC records marked as Claimant's Exhibit 2. SIF asserts the report is hearsay because Dr. Morrow is unavailable for cross-examination as required by § 287.210.7, absent consent of the parties. SIF did not consent to the admission of the report.

Claimant contends Dr. Morrow's report is admissible because it is contained in certified records, kept in the ordinary course of business, by the DWC, the agency where the case was filed. Each report should be considered based on the weight of the evidence and not its admissibility. Further, Claimant asserts §287.460.1 requires an informal, summary proceeding, therefore, evidence should be admissible if otherwise relevant and given whatever weight the judge deems appropriate.

Mo. Rev. Stat. § 287.808 states: the burden to prove entitlement to compensation or an affirmative defense under the Act is on the party who asserts the claim. In asserting any claim or defense based on a factual proposition, the party making the assertion must establish the assertion is more likely to be true than not true.

Section 287.210.7 states in relevant part:

> The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers. The party offering the report must make the physician available for cross-examination testimony by deposition no later than seven days before the matter is set for hearing.... Nothing herein shall prevent the parties from agreeing to admit medical reports or records by consent.

Here, Dr. Morrow's report is hearsay because Dr. Morrow is deceased and cannot be cross-examined. Therefore, Dr. Morrow's December 1989 report is not admissible.

However, Dr. Berkin summarizes Dr. Morrow's December 1989 report in Claimant's Deposition Exhibit 4 (Contained in Claimant's Exhibit 1). At the start of the hearing, Claimant

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

offered Exhibit 1. SIF did not object to any part of Dr. Berkin's report. (Claimant's Deposition Exhibit 4), and Exhibit 1 was admitted into evidence.

**Issue 2 - Nature and extent of SIF liability for PPD**

Claimant asserts she sustained 22.5 percent disability of the cervical spine due to degenerative disc disease before her February 2, 2008 work injury. In addition, the pre-existing cervical spine disability combined with the 2008 right hip injury to create a synergistic effect and a 10 percent loading factor should be applied.

SIF contends Claimant failed to prove the preexisting cervical spine injury meets the 50-week requirement for the body as a whole injury. Further, Claimant did not prove her primary and pre-existing injuries combine synergistically.

**RELEVANT LEGAL AUTHORITY**

**Burden of proof**

Claimant bears the burden of proof on all essential elements of her Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. 1990).4

Mo. Rev. Stat. § 287.800 (1-2) states: The Court shall construe the provisions of this chapter strictly and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

To receive compensation from SIF for PPD benefits, § 287.220.2 requires the following (in part):

For injuries that occurred before January 1, 2014 with pre-existing disability, Claimant's pre-existing permanent disability must be serious enough to constitute a hindrance or obstacle to employment or obtaining reemployment, if the employee becomes unemployed, and the pre-existing permanent partial disability, if a body as a whole, injury, equals a minimum of fifty weeks of compensation, according to the medical standards used to determine such compensation, and receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability is equal to a minimum of fifty weeks compensation, caused by the combined disabilities is substantially greater than what resulted from the last injury considered alone, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability from the last injury had there been no pre-existing disability.

4 Overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 223 (Mo 2003). In this award, other cases were overruled by the *Hampton* case for the same principle. No further reference is made to the *Hampton* decision in this award.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

existing disability. After compensation liability of the employer for the last injury, considered has been determined ... the degree or percentage of employee's disability attributable to all injuries ... existing at the time the last injury was sustained shall be determined, and the degree or percentage of disability which existed prior to the last injury plus the disability from the last injury, shall be deducted from the combined disability, and the balance, if any, paid out of the second injury fund.

To determine whether a pre-existing partial disability constitutes a hindrance or obstacle to the employee's employment, the [fact finder] should focus on the potential that the pre-existing injury may combine with a future work related injuries to result in a greater degree of disability than would have resulted if there was no such prior condition." E.W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App.2002), (overruled on other grounds, Hampton, 121 S.W.3d at 223).

SIF is not liable for any post-accident worsening of an employee's preexisting disabilities that are not caused or aggravated by the last work-related injury or for any conditions that arise after the last work-related injury. Garcia v. St. Louis County, 916 S.W.2d 263, 266 (Mo. App. 1995).

DISCUSSION

The primary injury

Claimant's right hip settled for 92.12 weeks exceeds the minimum 50-week requirement for the primary injury. She continues to take Coumadin, wear compression stockings and experience discomfort related to the February 2, 2008 work injury.

Hindrance and obstacle

Claimant's pre-existing cervical spine injury was not a hindrance or obstacle to employment or reemployment leading up to the 2008 work injury. Claimant testified sometime she missed work due to her symptoms. However, she continued to work without physician-imposed restrictions. No diagnostics confirm a herniated disc at C5-6 or C6-7. 2015 and 2016.

50-week requirement

Claimant's pre-existing degenerative disc disease of the cervical spine does not meet the 50-week requirement. Prior settlements to the cervical spine fall short of the statutory threshold to trigger SIF liability.

In addition, medical records in evidence contain no history of a 2004 injury to Claimant's cervical spine. Claimant's testimony is not credible about the medical treatment she received for this injury. No evidence supports her testimony she received physical therapy between 2004

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Injury No.: 08-072414

and the February 2, 2008 work injury. A 2002 work injury falls below the threshold for the body as a whole to be considered.

In 2017, Dr. Berkin rated 10 percent PPD for the cervical spine, pre-existing. The only reference in the report to pre-existing disability was a 2016 report from Dr. Bailey that referenced an MRI with degenerative disc disease at all levels. Dr. Berkin did not mention the IME he performed in 1993 for Claimant's cervical and lumbar spines, where he rated 15 percent PPD of the low back.

In Dr. Berkin's 2019 report, he discussed Dr. Morrow's rating of 15% of the dorsal spine. In October 1993, Dr. Sherwyn Wayne provided an IME report for the January 1993 injury. Dr. Wayne stated Claimant received chiropractic care from Dr. Rimmer after she was involved in a motor vehicle accident. X-rays obtained by Dr. Wayne of the cervical spine were normal. Dr. Wayne concluded Claimant had reached maximum medical improvement and assessed no permanency.

In 2019, Claimant reported neck complaints since her 2015 injury, including tenderness and limited range of motion. Her testimony is consistent with medical records in evidence for treatment she received during that time. Dr. Berkin then increased cervical pre-existing disability to 22.5 percent. Dr. Berkin's rating opinion is not persuasive.

Synergy

Claimant did not establish a relationship between a primary injury and a 2004 pre-existing injury that would create more disability than the simple sum of the injuries.

Subsequent deterioration

Claimant did not meet her burden to prove her present complaints are the result of degenerative disc disease of the cervical spine that existed before the 2008 work injury.

Physical therapy records and an MRI took place in 2015 and 2016, consistent with Claimant's testimony of increased neck pain between 2004 and 2008. Claimant testified she dealt with the pain. In addition, Claimant further testified her neck continued to worsen after the 2008 work injury, to the point that she resumed chiropractic treatment a short time before the 2008 work injury.

The medical care Claimant received during this timeframe addressed degenerative disc disease, seven or eight years after the primary injury and 11 to 12 years after the pre-existing disability occurred. Claimant's testimony is consistent with Dr. Berkin's findings during physical examination in 2016 and 2019. During that three-year period, Dr. Berkin reported Claimant's range of motion to the cervical spine decreased in five out of six categories.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

Claimant's February 2, 2008 work injury did not cause disability to her cervical spine. The work injury did not aggravate Claimant's pre-existing disability to her cervical spine. Therefore, SIF is not liable for worsening of Claimant's preexisting cervical spine disability after February 2, 2008.

ADDITIONAL FINDINGS of FACT and RULINGS of LAW

Claimant's testimony is credible and consistent with medical records that her pre-existing cervical spine symptoms worsened after her February 2, 2008 work injury. Claimant did not prove SIF liability for PPD benefits based on her testimony, medical records in evidence, and the applicable law in the State of Missouri.

1. Dr. Morrow's December 12, 1989 report is inadmissible but retained with the evidence.
2. Claimant sustained a compensable work injury on February 2, 2008.
3. Claimant did not sustain a pre-existing cervical spine injury that meets the 50-week body as a whole threshold required by § 287.220.2.
4. Claimant's pre-existing disability was not a hindrance or obstacle to her employment or reemployment.
5. Claimant's primary and pre-existing injuries did not combine synergistically.
6. SIF is not liable for post-accident worsening of Claimant's pre-existing cervical spine disability.

I certify that on 12-19-19 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 __________________________

Made by: __________________________

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation

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