Helen Baker v. Kross Lounge/Valeries Place, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 11-010136

**Employee:** Helen Baker

**Employer:** Kross Lounge/Valeries Place, LLC

**Insurer:** Missouri Employers Mutual Insurance Company

**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. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to resolve the following issues:

1. The nature and extent of employer's liability for employee's permanent disability.
2. Second Injury Fund liability.
3. Whether employee is entitled to additional temporary total disability benefits after July 18, 2011.
4. Whether employer is required to pay employee $47,785.05 in additional medical expenses.
5. Whether employer is required to provide employee with future medical treatment.

On October 7, 2019, an administrative law judge issued an award finding employer and the Second Injury Fund liable to employee for permanent total disability. The administrative law judge determined that employer was liable for 5% permanent partial disability for employee's cervical injury for 20 weeks, 5% permanent partial disability for employee's lumbar injury for 20 weeks, 5% permanent partial disability to employee's right shoulder for 11.6 weeks, 5% permanent partial disability to employee's left shoulder for 11.6 weeks, 2.5% permanent partial disability to employee's to right knee for 4 weeks, and 5% permanent partial disability for her psychiatric disability for 20 weeks. This resulted in a total of 10,137.87 for 87.2 weeks of disability at 116.26 per week. The administrative law judge also found the Second Injury Fund liable for permanent total disability for 116.26 per week beginning on July 19, 2011, but shall have an offset of 116.26 for 87.2 weeks and, thereafter, shall pay $116.72 per week for as long as employee remains permanently and totally disabled.

The administrative law judge additionally determined that employee was not entitled to additional temporary total disability benefits after her July 18, 2011 date of maximum medical improvement. The administrative law judge also determined that employer did not owe employee temporary total disability payments after employee's date of maximum medical improvement. The administrative law judge further determined that employee's subsequent medical care was not related to her February 14, 2011 injury and, therefore, is not the responsibility of the employer. The administrative law judge also found employer not liable to employee for $47,785.05 in additional medical expenses after her date of maximum medical improvement, and future medical care.

On October 24 and 25, 2019, Second Injury Fund and employee, respectively, filed timely applications for review with the Labor and Industrial Relations Commission (Commission).

Injury No.: 11-010136

Employee: Helen Baker

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The Second Injury Fund's application for review argued that the administrative law judge erred in finding the Second Injury Fund liable to employee for permanent total disability benefits because employee was working full time before the primary injury. Employee's medical expert Dr. P. Brent Koprivica opined that her restrictions from the primary injury made her permanently and totally disabled in isolation. Employee's vocational expert Mr. Micheal Dreiling opined that employee was unemployable even without her pre-existing conditions.

Employee's cross application for review appealed the administrative law judge's determinations regarding the nature and extent of her disability from employee's February 14, 2011 injury that is attributable to the employer and the Second Injury Fund, as well as employer's liability for temporary total disability, additional medical expenses, and future medical treatment.

**Findings of Fact**

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.

We agree with the Second Injury Fund's argument that but for the February 14, 2011 injury, employee would still be able to perform in the labor market. Even though employee was 72 years of age at the time of her injury, she was still able to perform her job at employer until the February 14, 2011 injury in spite of her preexisting disabilities. Additionally, vocational expert Mr. Dreiling opined that employee was unemployable in the open labor market. Mr. Dreiling also opined that if you ignore employee's psychological disabilities, and only consider her age, vocational background, and current physical limitations, employee was unemployable in the labor market. We believe that Mr. Dreiling's testimony negates the testimony of psychological expert Dr. Allan Schmidt's that employee was permanently and totally disabled from the combination of her preexisting psychological disability in combination with the psychological disability resulting from the February 14, 2011 injury. Dr. Koprivica also believed that employee was unlikely to obtain gainful employment and determined that employee was permanently and totally disabled from the February 14, 2011 injury alone or, hypothetically, from the combination of the pre-existing psychological disability with the February 14, 2011 injury. Therefore, we believe that the administrative law judge was incorrect in her assessment of the nature and extent of employee's February 14, 2011 injury. We also find that there is a causal connection between employee's compensable injury and medical treatment.

We also disagree with the administrative law judge's determination that the Second Injury Fund is liable to employee. The administrative law judge stated in her award that she determined that the Second Injury Fund was liable based in part on the testimony of Drs. James Zarr and Alexander Bailey. However, we could not find anything within the record in which Dr. Zarr explicitly stated that he believed that employee was permanently and totally disabled from the combination of the February 14, 2011 injury and her preexisting disabilities. Dr. Bailey did state that employee's inability to work was due to her February 14, 2011 injury in combination with her preexisting disabilities. Dr. Schmidt also opined that employee's February 14, 2011 injury was the prevailing factor in the aggravation of her preexisting psychological disability. Dr. Koprivica opined that employee was permanently and totally disabled from the February 14, 2011 injury in isolation, and added an alternative hypothetical opinion to explain how employee could be permanently and totally disabled from the combination of her February 14, 2011 injury and her preexisting disabilities. Dr. Koprivica placed numerous restrictions on employee's ability to stand, walk, sit, and crawl, all because of her February 14, 2011 injury. Additionally,

Injury No.: 11-010136

Employee: Helen Baker

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employee testified that she could perform her job as a waitress, and perform physical activities such as dancing every weekend, up until her February 14, 2011 injury.

Dr. Schmidt, employee's psychological expert, opined in his psychological evaluation report that employee's February 14, 2011 injury was the prevailing factor in the aggravation of employee's preexisting psychological disability. He also opined that employee will need psychological medication for an indefinite period of time, due to her 2011 injury in combination with her aggravating preexisting psychological disability. Employee has a 25% psychological disability rating, in which 10% of it is preexisting, and the other 15% is due to her 2011 injury.

**Discussion**

We adopt and affirm the administrative law judge's conclusions that (1) employee was not entitled to additional temporary total disability benefits after her July 18, 2011 date of maximum medical improvement, (2) employer did not owe employee temporary total disability payments after employee's date of maximum medical improvement, and that (3) employer was not liable to employee for $47,785.05 in additional medical expenses after her date of maximum medical improvement.

**Second Injury Fund Liability**

We find that the evidence in the record supports a finding that employer is liable for employee's permanent total disability from the February 14, 2011 injury in isolation, and modify the administrative law judge's award on this point. We find Dr. Koprivica's opinions to be more credible and persuasive than the other experts on this issue. Therefore, we find employer liable to employee for permanent total disability in the amount of $116.26 per week beginning on July 19, 2011 and for as long as employee remains permanently and totally disabled. The weekly payments shall continue for employee's lifetime, or until modified by law.

**Future medical care**

The administrative law judge rendered the following conclusion regarding the issue of future medical care: "Because there is no evidence in the record tending to indicate a reasonable probability that future medical treatment is necessary, Employee has not met her burden of establishing future medical treatment is necessary. Therefore, the employer is not liable for any future medical benefits."

$287.140 provides, in relevant part:

> [T]he employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

In order for a claimant to be entitled to an award of future medical benefits, a claimant must demonstrate a causal connection between the original compensable injury and the medical treatment. The burden is on the claimant to prove her entitlement to an allowance for future medical treatment.

1 See Transcript, page 268, and Award, page 8.

2 Transcript, page 1222.

3 Transcript, page 1223.

4 Award, page 14.

5 Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 54 (Mo. Ct. App. 2008).

6 Dean v. St. Luke's Hosp., 936 S.W.2d 601, 603 (Mo. Ct. App. 1997).

TI11680189

Injury No.: 11-010136

Employee: Helen Baker

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We disagree with the administrative law judge's conclusion, and modify the administrative law judge's award on this issue. Employer is obligated to provide any and all future medical treatment (including psychological medication) that may reasonably be required to cure and relieve the effects of the work injury.

**Conclusion**

We modify the award of the administrative law judge as to the issues of Second Injury Fund liability, and future medical care.

Employer is obligated to provide future medical treatment that may reasonably be required to cure and relieve the effects of the work injury.

Employer is liable to employee for permanent total disability in the amount of $116.26 per week beginning on July 19, 2011 and for as long as employee remains permanently and totally disabled. The weekly payments shall continue for employee's lifetime, or until modified by law.

The Second Injury Fund is not liable to employee.

The award and decision of Administrative Law Judge Emily S. Fowler is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 16th day of September 2020.

---

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Helen Baker

I have reviewed the evidence, read the briefs of the parties, heard the parties' arguments, and considered the whole record. 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 affirmed. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

FINAL AWARD

Employee: Helen Baker

Injury No.: 11-010136

Dependents: N/A

Employer: Kross Lounge/Valeries Place, LLC

Insurer: Missouri Employers Mutual Insurance Company

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

Hearing Date: August 14, 2019

Checked by: ESF/drl

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 14, 2011.

1. State location where accident occurred, or occupational disease was contracted: Jackson County, Missouri.

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 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 the alleged accident occurred, or occupational disease contracted: While waitressing Employee tripped and fell over an unsecured piece of carpeting.

1. Did accident or occupational disease cause death? No.

Date of death? N/A

1. Part(s) of body allegedly injured by accident or occupational disease: Neck strain, contusions, and psyche.

WC-32-R1 (6-81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

1. Nature and extent of any permanent disability: Employer shall be responsible for 5% permanent partial disability to the body as a whole for cervical injury, 5% permanent partial disability to the body as a whole for lumbar injury, 5% permanent partial disability to the right upper extremity at the shoulder, 5% permanent partial disability to the left upper extremity at the shoulder, 2.5% permanent partial disability the right lower extremity at the knee, and 5% permanent partial disability to the body as a whole for psychiatric disability. Permanent total disability as to the Second Injury Fund.

1. Compensation paid to date for temporary disability: $1,133.81.

1. Value necessary medical aid paid to date by employer/insurer? $16,500.72.

1. Value necessary medical aid not furnished by employer/insurer? 0

1. Employee's average weekly wages: 102.63.

1. Weekly compensation rate: 68.42 for temporary total disability, utilizing the 30-hour rule and 116.26 for permanent partial/total disability.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable: The Employer shall pay to the Employee 5% permanent partial disability to the body as a whole for cervical injury for 20 weeks, 5% permanent partial disability to the body as a whole for lumbar injury for 20 weeks, 5% permanent partial disability to the right upper extremity at the shoulder for 11.6 weeks, 5% permanent partial disability to the left upper extremity at the shoulder for 11.6 weeks, 2.5% permanent partial disability permanent partial disability the right lower extremity at the knee for 4 weeks, and 5% permanent partial disability to the body as a whole for psychiatric disability for 20 weeks. All for a total of 87.2 weeks of disability at 116.26 per week for a total of 10,137.87.

1. Second Injury Fund liability: The Second Injury Fund shall pay Employee the sum of 116.26 per week beginning July 19, 2011 but shall have an offset of 116.26 for 87.2 weeks and thereafter shall pay the sum of $116.26 for as long as Employee remains permanently and totally disabled.

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of twenty-five percent (25%) of all payments in favor of David A. Slocum, Attorney, for necessary legal services rendered to the Employee.

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On August 14, 2019, the parties appeared for a final hearing. The Division had jurisdiction to hear the case pursuant to Section 287.110. Employee, Helen Baker, appeared personally and through her attorney, David A. Slocum. The employer, Kross Lounge/Valeries Place, LLC, and its insurer, Missouri Employers Mutual Insurance Company, appeared through their attorney, Eric T. Lanham. The Second Injury Fund appeared through Assistant Attorney General Ms. Shelly Hinson.

**STIPULATIONS**

The parties stipulated to the following:

1. That the employer, Kross Lounge/Valeries Place, LLC, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on February 14, 2011, and was fully insured by Missouri Employers Mutual Insurance Company;
2. That Helen Baker was its Employee and she was working subject to the law in Sugar Creek, Jackson County, Missouri;
3. That Employee sustained an accident arising out of and in the course of her employment;
4. That the Employee notified the Employer of her injuries as required by law and her claim was filed within the time allowed by law;
5. That the Employer has paid 1,133.81 in temporary total disability benefits and has paid 16,500.72 for medical care;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

1. That Employee's average weekly wage was 102.63 per week under the 30 hour rule creating a compensation rate of 68.42 for temporary total disability benefits and $116.26 for permanent partial and permanent total disability benefits;

1. That an underpayment of 5.72 weeks of temporary total disability remains unpaid which totals $391.36 for the dates of June 10, 2011 through July 18, 2011.

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 for which the employer is liable.

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

1. Whether Employee is entitled to additional temporary total disability benefits after July 18, 2011.

1. Whether Employer is required to pay the additional medical expenses of $47,785.05.

1. Whether Employer is required to provide Employee with future medical treatment.

FINDINGS

Based on the above exhibits and the testimony of Helen Baker, I make the following findings:

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

Exhibit 1: 12/19/17 Deposition of P. Brent Koprivica, M.D., with exhibits attached. All objections contained therein are overruled.

Exhibit 2: 11/21/17 deposition of Michael Dreiling, with attached exhibits

Exhibit 3: 2/20/18 Deposition of Allan Schmidt, Ph.D., with attached exhibits. All objections contained therein are overruled.

Exhibit 4: Dr. Zarr records

Exhibit 5: Medicare Conditional Payment Search

Exhibit 6: XL Spreadsheet of Bills

Exhibit 7: St. Mary's Hospital Bills

Exhibit 8: Rockhill Pain Specialists Bills

Exhibit 9: Centerpoint Medical Center Bills

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

Exhibit 10: Dr. MacMillan Bills

Exhibit 11: Humana Lien Letter

Exhibit 12: Handwritten Current Physical Complaints

Exhibit 13: Handwritten Current Psychological Complaints

Exhibit 14: Handwritten Prior Right Hand Complaints

Exhibit 15: Handwritten Prior Neck Complaints

Exhibit 16: Handwritten Prior Psychological Complaints

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

Exhibit A: Precision Spine, Alexander Bailey, M.D. medical records

Exhibit B: Deposition Transcript of Alexander Bailey, M.D. All objections contained therein are overruled.

Exhibit C: Premier Spine Care, John M. Ciccarelli, M.D., Adrian Jackson, M.D. medical records

Exhibit D: James Zarr, M.D. medical records

Exhibit E: PainCARE, Kimber Eubanks, M.D. medical records

Exhibit F: OHS-Compcare medical records

Exhibit G: Grace Albano, M.D. medical records

Exhibit H: Centerpoint Medical Center medical records

Exhibit I: Diagnostic Imaging Centers medical records

Exhibit J: Lee's Summit Medical Center medical records

Exhibit K: Dr. MacMillan's medical records

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

Exhibit I: Deposition of Helen Baker, Claimant, 2/27/18. All objections contained therein are overruled.

Helen Baker ("Employee") was injured as a result of a fall she sustained while working for Kross Lounge/Valeries Place, LLC on February 14, 2011. Employee was waitressing for the Employer at the time of the accident and was injured when she tripped over a metal piece between the carpet and linoleum on the floor. Employee stated she fell flat and skidded into the wall, landing mainly on her right side. She did not initially seek medical treatment but did go to the emergency room at Centerpoint Hospital the following day.

Employee's highest level of education is the eleventh (11th) grade of high school. Employee testified she has worked since she was thirteen (13) years old. She attended beautician school in the 1960s and subsequently owned her own beauty shop for about 41 years, which she ran out of her home in Independence, Missouri. Before working for the employer, Employee was

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

a waitress at Jerry's Restaurant in Fairmount. There were times she would work for her hairdressing business and waitress at the same time.

Employee worked for the employer for about 12 years as a waitress and would work normally on Wednesday, Thursday, Friday and Saturday nights from about 5 p.m. to 9 p.m. However, there were days she would come in when she was not scheduled if the employer needed her to. Employee was paid $3.50 an hour with tips and her job duties consisted of waiting on customers, taking food orders and sometimes bussing tables.

Employee has not worked since the date of the accident and currently draws her husband's social security income in the amount of 967.00 a month, her husband's pension in the amount of 24.13, and is currently on Medicare.

Employee, born May 14, 1938, was 72 at the time of the injury and had suffered from preexisting neck, shoulder and psychological issues for several years prior to the accident. Employee had an appendectomy, tubal ligation, prior right-hand laceration and psychological nervous breakdown before the accident. In relation to the right-hand laceration, Employee required stitches and physical therapy and continued to have issues using scissors, which were required in her prior profession of hairdressing. Employee admitted she had neck and arm problems from her prior profession as a hairdresser due to the tasks associated with that job. She ultimately quit the hairdressing profession due to problems with her hand and shoulders that made it difficult for her to use scissors. Employee was in a car accident in the 1960s or 1970s and she remembers being shaken up but is unsure of the specific injuries she suffered. Employee has been diagnosed with COPD and still smokes cigarettes. In addition, Employee has had a cognitive decline in the past decade which results in Employee not remembering quite as well as she used to.

Prior to this claim, Employee presented to Centerpoint Medical Center on May 7, 2008 for a CT scan and chest X-Ray as she was stated to be having left arm numbness and scapular pain. Dr. Albano notes on September 15, 2010 that Employee has multiple life stressors such as a daughter who is confined to a wheelchair, a son who is schizophrenic, and a son who was diagnosed with liver failure. Dr. Albano diagnosed her as having acute bronchitis, hypertension, hyperlipidemia, type 2 diabetes with neuropathy and depression. A chest X-Ray from November 8, 2010 shows degenerative changes in the thoracic spine. She complained of neck and shoulder pain of greater than one year and now also included tingling. At a follow up with Dr. Albano on November 10, 2010, Employee presented with complaints of pain in the neck that radiated down the left arm and shoulder. She also noted a history of carpal tunnel syndrome. She reviewed an x-ray which revealed thoracic DJD and on that date she diagnosed Employee with cervicalgia. To treat this condition Dr. Albano prescribed a Medrol tablet of 4 mg. Employee was also diagnosed with depression.

In addition, Employee has had an extensive psychological history. She had a nervous breakdown in 1970s and was hospitalized for a few weeks at which time she was unable to work at her profession as a hairdresser. Employee has had depression and anxiety and testified she has taken medications for the same off and on since the time of the nervous breakdown.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

A day after her February 14, 2011 fall, Employee presented to Centerpoint Medical Center. Per those medical records, it was recorded that she complained of injury to her left elbow, right shoulder, left hand, pelvis, right hip and spine. It was noted in the records on the diagram that she stated complaints to her neck, bilateral shoulders, left elbow, right hip and low back. X-rays were taken of her right hip, lumbar spine, pelvis, right hip and cervical spine. Those x-rays revealed age-related degeneration but no fractures. She was diagnosed with a strain of the neck and contusions. Employee followed up with Dr. Grace Albano on February 17, 2011 who also diagnosed her with a strain and contusions and at which time she was given pain medications and a work excuse. On February 18, 2011, Employee presented to OccMed Clinic where it was noted that Employee had general body contusions and exaggerated pain and was given a ten (10) pound work restriction. Employee had physical therapy for four (4) weeks through March of 2011 at Rehabilitation Specialists where she underwent generalized therapy exercises for the contusions and strains. At this time, Employee continued to describe her pain as in the neck and her whole body. On April 4, 2011, Employee presented to Dr. James Zarr who diagnosed her with neck, upper back pain, low back pain, and left medial epicondylitis and recommended pain management, that she remain off work, attend more physical therapy and submit to a work hardening program as well as a functional capacity exam. On April 12, 2011, Dr. Kimber Eubanks diagnosed her with pain in the mid-back, low back, neck, left arm, right arm, right leg and myofascial pain and recommended trigger point injections.

On April 29, 2011, Employee followed up with Dr. Zarr at which time he noted the trigger point injections did not provide relief, and that Employee did not feel she could tolerate the activity of a work hardening program. Therefore, Dr. Zarr referred her for a functional capacity evaluation. Dr. Rosen evaluated Employee on May 14, 2011 wherein he indicated her pain was somewhat out of proportion with what he evaluated. On May 16, 2011, Dr. Zarr reviewed the functional capacity evaluation, which was found to be deemed invalid. He noted that she had tenderness over the same areas she had complained of previously. Dr. Zarr released her to regular duty, maximum medical improvement and gave her a 3% whole body permanent disability rating.

On May 31, 2011, Dr. John M. Ciccarelli evaluated Employee and noted unusual pain behaviors, very atypical responses, breakaway weakness in every tested muscle group, and pain to the light touch of multiple parts of her body. An MRI of the lumbar spine was performed on June 9, 2011 and showed mild to moderate multilevel degenerative disc disease, grade 1 anterolisthesis L4-5, synovial cyst at L4-5. An MRI of the cervical spine was also performed on June 9, 2011 and showed multilevel cervical spondylosis, endplate changes, particularly at L4-5, disc osteophyte complex at C4-5 which causes moderate central canal and left-sided neural foraminal narrowing. After Dr. Ciccarelli reviewed the studies, he identified multilevel cervical spondylosis with cervical cord compression, which is worse at C4-5, some myelopathy-type symptomatologies, underlying degenerative spondylolisthesis and right-sided lumbar radicular pain.

Employee was referred to Dr. Adrian Jackson for neck complaints on July 18, 2011 to which he diagnosed her as having extensive underlying degenerative cervical spinal disease. Dr. Jackson did not believe surgical intervention was appropriate and that any treatment would be directed toward the patient's chronic underlying degenerative changes which are not injury

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

related. Dr. Jackson placed her at maximum medical improvement. At this time temporary total disability payments were stopped by the Employer/Insurer as Employee had reached maximum medical improvement.

Despite being placed at maximum medical improvement, Employee continued to treat on her own. On July 26, 2011, Dr. Albano expressed some concern about metastatic disease and ordered labs. On August 2, 2011 a bone scan was completed which provided no evidence of a fracture or malignancy but degenerative uptake was identified. An MRI of the cervical spine on September 13, 2011 showed degenerative disc disease at C4-5, C5-6 and C6-7 with some narrowing, subchondral changes are likely due to degenerative disc disease and inflammatory changes. On September 22, 2011, Dr. Macmillan ordered an MRI, which showed a degeneration normal for her age. On September 29, 2011, Dr. Macmillan performed a 3-level cervical spine fusion. Employee stated the neck surgery performed by Dr. Macmillan helped alleviate her pain for a while, but the pain returned.

Employee followed up with Dr. Macmillan post-surgery from October 13, 2011 through January 31, 2014 to which he noted her neck pain and gait initially improved and she was able to resume normal daily activities; however, her pain came back. Dr. Macmillan performed various injections to her right trochanter, right hip, left shoulder, and right knee. Employee continued to complain of pain radiating down both her legs, bilateral foot numbness and paresthesia and pain in her left shoulder, neck, left elbow, left wrist and low back including symptoms of numbness and tingling. Dr. Macmillan noted she takes hydrocodone, Flexeril, and utilizes a TENS unit but stated they are not adequately relieving her pain. On December 27, 2012, an EMG suggested the possibility of bilateral L5 radiculopathies. In May of 2014, Employee underwent an unrelated coronary artery bypass graft.

On November 7, 2015, Dr. Koprivica performed an independent medical evaluation wherein he opines the workplace injury to be the direct, proximate and prevailing factor in the development of multiple physical and psychological disabilities but notes Employee did have preexisting multilevel cervical spondylosis and degenerative disc disease. Dr. Koprivica considered her to be at maximum medical improvement and found her to be permanently and totally disabled on her functional limitations.

Employee presented to Dr. Schmidt on May 5, 2016 for a psychological evaluation wherein Dr. Schmidt identified evidence of Employee having significant preexisting psychological problems including a history of unstable family background, abuse, and a nervous breakdown in the 1970s. Employee has taken medications for anxiety and depression off and on since the nervous breakdown. Dr. Schmidt opined that Employee would need psychological medications indefinitely as well as psychological counseling and found these to be a result of her injury as an aggravation of her preexistent psychological condition. Dr. Schmidt further provided a 25% psychological disability detailing 10% of the rating to be preexistent and 15% to be associated with her injury.

Michael Dreiling performed a vocational evaluation of Employee on August 9, 2016 and found her to be unemployable and totally disabled. On December 21, 2016, Dr. Koprivica followed up his prior report by providing a disability rating on this claim. Dr. Koprivica found

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

Employee to be permanently and totally disabled, provided a rating of 15% psychological, 35% to the cervical spine, 15-20% for the lumbar spine, 10% to the right shoulder, 10% to the left shoulder and 5% to the knee. Dr. Koprivica opined a 12% preexisting disability to the right thumb and 10% preexisting disability for psychological impairment. He stated "Looking at the severity of these multiple physical impairments and the resultant permanent partial disabilities for which the February 14, 2011, injury is the prevailing factor in their development and the additional psychological disability apportioned by Dr. Schmidt, it is my opinion that, in fact, Ms. Baker is permanently totally disabled when one considers the primary injury claim of February 14, 2011, in isolation, in and of itself... Hypothetically, despite my belief that the primary injury claim is totally disabling in isolation, if the trier of fact were, in fact, to find that Ms. Baker is not totally disabled based on the primary injury claim of February 14, 2011, in isolation, I believe the additional synergism of considering the combination of the pre-existing psychological disability with the overwhelming disability attributable to the February 14, 2011 claim results in Ms. Baker being permanently totally disabled. I would note that this permanent total disability is felt to be present with the exclusion of the subsequent development of cardiovascular disability."

On August 7, 2018, Employee presented to Dr. Alexander Bailey with complaints of head pain, neck pain, midback pain, low back pain, bilateral arm pain, bilateral leg pain and indicates physical therapy made her feel worse and the cervical epidural and lumbar epidural injections did not help her; however, her memory is fragmented. Dr. Bailey found Employee had a highly unusual condition where the resistive motor testing performed in her upper and lower extremities resulted in Employee's whole body shaking uncontrollably. Dr. Bailey diagnosed Employee with marked degenerative changes in her cervical spine, multilevel cervical, thoracic, and lumbar spine with associated degenerative disc bulging, end plate alterations, joint alterations, and generalized spondylosis multilevel and a concern of an alternate neurologic diagnosis versus psychogenic overlay. Dr. Bailey states this essentially means Employee has a non-reconstructible and non-treatable cervical, thoracic, and lumbar spine. Further, Dr. Bailey opined that Employee's degenerative conditions and stenosis were already symptomatic prior to the fall based on her neck and arm complaints she presented to Dr. Albano in 2010. Dr. Bailey states that only the contusions and strain, which were initially diagnosed by Centerpoint Hospital and Dr. Albano, are reasonably associated with this work injury and therefore the only treatment directed towards these conditions, including physical therapy and some early conservative management, are related to this injury. He felt the full aspects of patient's psychological conditions, current clinical presentation, and treatment beyond four to eight weeks from the date of injury would all be related to Employee's personal medical condition, not the work-related injury. This unrelated medical treatment includes the cervical fusion and the recommendation for fusion of her lumbar spine as they are related to her degenerative conditions. Dr. Bailey opines that Employee's fall did not cause an acute process to the Employee's cervical spine, lumbar spine, shoulders, knee, elbow or resulted in an alteration of the patient's psychological condition or cardiovascular condition. Instead, the psychosocial overlay, general pain condition and syndrome are primarily degenerative in nature and her current clinical condition is personal in nature, not related to her fall. Dr. Bailey's only suggestion for treatment would be to a neurologist to look for alternate neurologic diagnosis, but again asserts this would be unrelated to her fall. Dr. Bailey further found that Employee's cigarette smoking may decrease oxygen tension in her soft tissues and is associated with degenerative changes in the spine as well as poor healing.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

Dr. Bailey recommended retirement for Employee when asked about a suggested work status. He advised retirement is recommended based on her age, degenerative conditions and whole-body complaints, but advised the retirement suggestion is unrelated to her fall. Dr. Bailey provided a 5% body as a whole permanent partial impairment rating as it relates to her generalized strain and contusion, which are related to the fall and impacted her cervical, thoracic and lumbar spine.

The first issue to be determined is whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability. If it is found that the Employee suffered a disability, the Court must also determine whether the Second Injury Fund is liable to the Employee for any disability, either permanent partial or permanent total disability.

In this case the Employee has alleged that she is permanently and totally disabled. There is no credible evidence that the Employee was rendered permanently and totally disabled as a result of the injury caused by her February 14, 2011 accident considered alone and without regard to her alleged preexisting disability.

An employer is liable for permanent total disability compensation under §287.220 RSMo (1994) only where it is found that the primary accident alone caused the employee to be permanently and totally disabled. *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 276 (Mo. App. 1996); *Feldman v. Sterling Properties*, 910 S.W.2d 808 (Mo. App. 1995); *Moorehead v. Lismark Distributing Company*, 884 S.W.2d 416, 419 (Mo. App. 1994); *Kern v. General Installation*, 740 S.W.2d 691, 692 (Mo. App. 1987). Compensation cases in which there has been a previous disability are to be determined under §287.220.1 RSMo (1994). In partial disability cases, the Employer is liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. In total disability cases, the Employer is liable only for the disability resulting from the last injury considered alone and of itself. The Employer's liability for permanent partial disability compensation is determined under §287.190; *Stewart v. Johnson*, 398 S.W.2d 850 (Mo. App. 1996).

Based upon a review of the medical records, including the opinions of the medical and vocational experts, Employee was not rendered permanently and totally disabled due to her fall on February 14, 2011 alone. As previously stated, the Employer in this case is only liable for permanent partial disability. After reviewing the medical evidence, reports and depositions of the experts as well as Employee's testimony, this Court finds that Employee has sustained permanent partial disability as follows: Employer shall be responsible for 5% permanent partial disability to the body as a whole for her cervical injury, 5% permanent partial disability to the body as a whole for lumbar injury, 5% permanent partial disability to the right upper extremity at the shoulder, 5% permanent partial disability to the left upper extremity at the shoulder, 2.5% permanent partial disability to the right lower extremity at the knee and 5% permanent partial disability to the body as a whole for psychiatric disability.

Since I have determined that Employee's February 14, 2011 accident resulted only in permanent partial disability and that that disability did not cause the Employee to be permanently

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

and totally disabled in and of itself, the next issue is the Second Injury Fund's liability. In order to establish Second Injury Fund liability for permanent total disability benefits, the Employee must prove the following: 1) that she has a permanent disability resulting from a compensable work-related injury. See §287.220.1 RSMo (1994); 2) that she has permanent disability predating the compensable work-related injury, which is "of such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the employee becomes unemployable." §287.220.1 RSMo (1994); Messex v. Sach's Electric Co., 989 S.W.2d 206 (Mo.App. 1997); Garibay v. Treasurer, 964 S.W.2d 474 (Mo.App. 1998); Rose v. Treasurer, 899 S.W.2d 563 (Mo.App. 1995); Leutzinger v. Treasurer, 895 S.W.2d 591 (Mo.App. 1995); and Wuebbeling v. West County Drywall, 898 S.W.2d 615 (Mo.App. 1995); and 3) that the combined effect of the disability resulting from the work-related injury and the disability that is attributable to all conditions existing at the time the last injury was sustained results in permanent total disability. Boring v. Treasurer, 947 S.W.2d 483 (Mo.App. 1997); Reiner v. Treasurer, 837 S.W.2d 363 (Mo.App. 1992); Frazier v. Treasurer, 869 S.W.2d 152 (Mo.App. 1994). See Miller v. State Treasurer, 978 S.W.2d 808 (Mo.App. 1998), where the Court held Claimant's fibromyalgia from the last injury, combined with preexisting aneurysm, was sufficient to establish permanent total disability against the Second Injury Fund.

The first requirement has already been met. With regard to the second requirement, a determination must be made as to the degree or percentage of disability that is attributed solely to the preexisting conditions at the time of the last injury. Lammert v. Vess Beverages, Inc., 968 S.W.2d 720 (Mo. App. 1999); Carlson v. Plant Farm, 952 S.W. 2d 369 (Mo. App. 1997). Employee testified that she had neck and arm problems as well as trouble using scissors due to her prior right-hand laceration. Employee testified these stemmed from her prior profession of hairdressing and were common within that profession. Further, the medical evidence, dated before the accident, illustrates Employee had left arm numbness, scapular pain, psychological issues including depression and anxiety, and degenerative changes in her thoracic spine. Employee settled a pre-existing disability to her right thumb for 12% permanent partial disability to the right thumb. She, ultimately, stopped working as a hairdresser due to her hand injury. This injury had made it difficult for her to grasp and carry things and hold scissors which were required by that particular job. She stated that she had problems with her neck, shoulders and arms caused by her duties as a hairdresser as well. She was diagnosed with thoracic DJD and cervicalgia. These injuries were an obstacle or hindrance to her ability to do her job and to be employed as a hairdresser. Dr. Schmidt determined that Employee suffered a 10% permanent partial disability as a whole pre-existing her last accident. This caused her to be hospitalized and stopped working for 6 months. She testified that there were times that she had difficulty going to work due to her depression and anxiety. This was a hindrance or obstacle to her employment. Based upon the injury to her psyche and other body parts, I find that Employee did, in fact, suffer a permanent partial disability to her neck, shoulders, right hand, and psyche which pre-existed her last accident.

This Court finds that Dr. Schmidt and Dr. Koprivica's assessment that Employee had preexisting disability to be reasonable and, therefore, this Court finds that the problems with Employee's neck, shoulders, right hand and pre-existing psychological were a hindrance or obstacle to her employment.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

The last requirement in establishing Second Injury Fund liability is proving that the Claimant is permanently and totally disabled as a result of the combined effect of the disabilities. The first part of this inquiry involves the findings as to whether the Employee is permanently and totally disabled. §287.020.7 RSMo (1986) defines total disability as the inability to return to any employment and not merely the inability to return to employment in which the Employee was engaged at the time of the accident.

It is clear that Employee suffered from disabilities predating the compensable work-related injury which are of such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the Employee becomes unemployed. These disabilities were to her neck, shoulders, right thumb, and psyche. Michael Dreiling felt Employee was unemployable in the open labor market. Dr. Koprivica also believed that Employee was unlikely to obtain gainful employment. Dr. Koprivica determined Employee's permanent total disability in the alternative. He initially stated that he felt that the permanent total disability was due to her last accident alone, but also noted that if the trier of fact were to find Employee was not totally disabled based on the primary injury alone, he believed that the additional synergism of considering the combination of the pre-existing psychological disability with the injury of February 14, 2011 resulted in Employee being permanently totally disabled. This Court also believes that, along with her pre-existing psychological disability, she also suffered other pre-existing disabilities with regard to disabilities to her right hand due to her thumb injury, and disabilities to her neck and shoulders which were diagnosed and treated as pre-existing disabilities. Drs. Bailey and Zarr also felt that Employee was permanently disabled and should not return to work. They did not believe, however, that it was due to the last accident, but believed that it was due to the effects of her pre-existing injuries combined with her last accident to make her permanently totally disabled. This Court finds these opinions credible and further finds there is no other evidence to the contrary which would contradict such findings. Wherefore, this Court, based on the above and foregoing, finds that Employee is permanently and totally disabled due to the combination of her pre-existing disabilities and her disability from her injury from her accident on February 14, 2011.

The next issue to be determined is whether Employee is entitled to additional temporary total disability benefits after July 18, 2011. The burden of proving entitlement to temporary total disability benefits lies with the employee. *Boyles v. USA Rebar Placement*, 26 S.W.3d 418, 424 (Mo. Ct. App. 2000). The purpose of a temporary total disability award is to cover the employee's healing period from a work-related injury. *Tilley v. USF Holland*, 325 S.W.3d 487, 492 (Mo. Ct. App. 2010). Temporary total disability awards are owed until the employee can find employment or the condition has reached the point of maximum medical progress. *Id.* An award of temporary total disability is not appropriate for a disability for which further improvement is not expected. *Williams v. Pillsbury Co.*, 694 S.W.2d 488, 489 (Mo. Ct. App. 1985).

Employee was provided temporary total disability benefits for 16 weeks and 4 days in the amount of $1,133.81; however, these benefits were ceased once she reached maximum medical improvement, according to Dr. Jackson, on July 18, 2011. At such point, she had reached the point of maximum medical progress and was no longer entitled to temporary total disability benefits. *Tilley v. USF Holland*, 325 S.W.3d 487, 492 (Mo. Ct. App. 2010).

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

Employee asserts that temporary total disability is due from the time Dr. Jackson placed her at maximum medical improvement on July 18, 2011 until April 30, 2014, which was when Dr. Koprivica placed her at maximum medical improvement. Employee decided to continue seeking treatment on her own after Dr. Jackson placed her at maximum medical improvement on July 18, 2011. The treatment Employee sought after Dr. Jackson's assertion that she was at maximum medical improvement was treatment unrelated to the work accident. This treatment was in the form of a surgical fusion of her cervical spine. This Court agrees with employer's experts that Employee's injuries from her February 14, 2011 accident amounted to strains and sprains to her neck, shoulders, low back, and right knee. She clearly had pre-existing symptomatic conditions for which she sought treatment. Her neck and shoulders were treated by Dr. Albano in 2010. There was evidence of degenerative disc disease at that time as well. Wherefore, this Court finds that Employee reached maximum medical improvement on July 18, 2011 as determined by Dr. Jackson and no additional temporary total disability is owed to Employee.

The next issue to be determined is whether Employer is required to pay the additional medical expenses of $47,785.05. Section 287.140.1 R.S.Mo. (2005) provides that an employer shall provide such medical, surgical, chiropractic, and hospital treatment, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. An employee has the burden of proving her entitlement to benefits for care and treatment authorized by § 287.140.1, i.e., that which is reasonably required to cure and relieve from the effects of the work injury. *Rana v. Landstar TLC*, 46 S.W.3d 614, 622 (Mo. Ct. App. 2001). Meeting that burden requires that the past bills be causally related to the work injury. *Bowers v. Hiland Dairy Co.*, 132 S.W.3d 260 (Mo. Ct. App. 2004).

Employee did not meet her burden of proving the existence of a medical causal relationship between the February 14, 2011 work injury and her need for additional medical care beyond that which Drs. Jackson, Ciccarelli, and Bailey determined were related to said accident. Centerpoint Medical Center and Dr. Albano both diagnosed Employee with a strain of the neck and contusions directly after the accident. Dr. Jackson, Dr. Ciccarelli, Dr. Albano, Dr. Schmidt and Employee's own hired doctor, Dr. Koprivica, all recognize she had degenerative changes in her spine as well as preexisting psychological concerns. Dr. Zarr and Dr. Ciccarelli further describe Employee as having unusual pain behaviors and responses. Dr. Bailey confirms that the only injuries casually related to Employee's injury are that of the initially diagnosed contusions and neck strain.

Dr. Bailey opined the only treatment necessary for Employee's injuries sustained as a result of the injury on February 14, 2011 would be physical therapy and some early conservative management, specifically no more than four to eight weeks from the date of injury. Further, she was placed at maximum medical improvement by Dr. Jackson on July 18, 2011 and did not require any further medical treatment for her work-related injury. As such, Employee is not entitled to payment for past medical bills related to the treatment she received after she was placed at maximum medical improvement on July 18, 2011, as that treatment is unrelated to her work-related injury and is merely personal in nature directed toward her preexisting conditions.

WC-32-R1 (6-81)

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

Injury No: 11-010136

The next issue to be determined is whether Employer is required to provide Employee with future medical treatment. In order to be entitled to future medical benefits, the claimant must demonstrate a causal connection between the original compensable injury and the medical treatment. *Conrad v. Jack Cooper Transp. Co.*, 273 S.W.3d 49, 54 (Mo. Ct. App. 2008). The burden is on the claimant to prove her entitlement to an allowance for future medical treatment. *Dean v. St. Luke's Hosp.*, 936 S.W.2d 601, 603 (Mo. Ct. App. 1997). The standard for proof of entitlement to an allowance for future medical treatment cannot be met simply by offering testimony that it is "possible" that the claimant will need future medical treatment. *Id.* The claimant must demonstrate a reasonable probability that future medical treatment will be necessary. *Id.* In addition, the employee must establish through competent medical evidence that the medical care requested "flows from the accident" before the employer is responsible. *Landers v. Chrysler Corporation*, 963 S.W.2d 275 (Mo. Ct. App. 1997).

Dr. Jackson opined that surgical intervention was not appropriate for Employee and that any further treatment would be directed toward her chronic underlying degenerative changes which are not injury related. Further, Employee testified herself that she does not want to move forward with surgery based on her current unrelated heart condition. In addition, Dr. Bailey testified that the only treatment necessary to cure the work related contusions and neck strain was already completed and properly consisted of early conservative management and physical therapy. Dr. Bailey opined that unrelated medical treatment in this claim consists of the cervical fusion and the recommendation for fusion of her lumbar spine as they are both related to her degenerative conditions. The only suggestion Dr. Bailey had for future treatment was a neurologist to look for alternate neurologic diagnosis, but again asserts this would be unrelated to her fall.

Employee never indicated that a reasonable probability exists that future medical treatment will be necessary. Employee failed to state that she believed she would need future medical treatment other than primary care due to her degenerative conditions. Employee never established a reasonable probability that future medical treatment would be necessary to cure or alleviate any ongoing conditions associated with her injury. Because there is no evidence in the record tending to indicate a reasonable probability that future medical treatment is necessary, Employee has not met her burden of establishing future medical treatment is necessary. Therefore, the employer is not liable for any future medical benefits.

CONCLUSION

The Employer shall pay to the Employee 5% permanent partial disability to the body as a whole for cervical injury for 20 weeks, 5% permanent partial disability to the body as a whole for lumbar injury for 20 weeks, 5% permanent partial disability to the right upper extremity at the shoulder for 11.6 weeks, 5% permanent partial disability to the left upper extremity at the shoulder for 11.6 weeks, 2.5% permanent partial disability to right lower extremity at the knee for 4 weeks, and 5% permanent partial disability to the body as a whole for psychiatric disability for 20 weeks. All for a total of 87.2 weeks of disability at 116.26 per week for a total of 10,137.87.

WC-32-R1 (6-81)

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Helen Baker

This Court finds that the Employee is entitled to permanent total disability benefits from the Second Injury Fund. The Second Injury Fund shall pay Employee the sum of 116.26 per week beginning July 19, 2011 but shall have an offset of 116.26 for 87.2 weeks and, thereafter, shall pay the sum of $116.72 per week for as long as Employee remains permanently and totally disabled.

This Court finds that Employee's subsequent medical care with regard to her cervical fusion was not related to her last accident and, therefore, is not the responsibility of the employer. This Court finds the employer is not liable to Employee for any subsequent medical costs after July 18, 2011. Further, as this Court found that Employee's additional medical care was not related to her last accident, this Court finds that employer does not owe Employee any temporary total disability payments after July 18, 2011, her date of maximum medical improvement from her work-related injuries. Finally, this Court finds that employer is not liable to Employee for any future medical care.

Finally, this court awards to Employee's attorney, David A. Slocum, 25% of all benefits awarded herein.

I certify that on 10-7-19 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 _______________________/______/______

By _______________________/______


Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation

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