I have read the parties' briefs and considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find that employee sustained a compensable injury due to occupational disease resulting from repetitive motion and trauma during ten-hour shifts standing on concrete at employer's window manufacturing company from 2013 to 2015.
Employee settled her claim against employer/insurer in this matter on May 14, 2019, for $5,918.00 based on twenty percent permanent partial disability consisting of ten percent of each foot at the 110-week level.
Notwithstanding employer/insurer's settlement of employee's primary claim, the administrative law judge found that employee "failed to sustain her burden of proof that she sustained an injury caused by her employment at Quaker." *Award, p. 6.* In support of this conclusion, the administrative law judge found employer/insurer's independent medical examination physician Dr. Joshua Nadaud was more credible than employee's expert Dr. Raymond Cohen.
Dr. Nadaud, a foot specialist, spent only approximately twenty to thirty minutes evaluating employee. He did not know how many days a week employee worked; how long employee worked during her shifts; or how long employee worked for employer leading up to the alleged injury. Dr. Nadaud acknowledged that employee may indeed have bilateral plantar fasciitis. However, he ordered X-rays of employee's feet despite admitting in his deposition that plantar fasciitis was a soft tissue injury that would not show up on an X-ray.
Dr. Nadaud testified that more likely than not employee's work put her at no further risk of getting plantar fasciitis versus her activities outside of work. His report stated, "[Employee's] job description does not put her at any higher risk of developing plantar fasciitis than normal activities of daily living." *Transcript, 1209.* This opinion lacks credibility because it is not reasonable to believe that employee's non-work activities of daily life involved standing on concrete for ten hours a day four or five days a week.
Dr. Nadaud further based his medical causation opinion on the fact that employee "noted that she did not have a specific incident or work accident or work injury that led to this pain that she described." *Id.* Dr. Nadaud alluded to a lack of injury by "accident" (i.e. specific place, time, and trauma) as the reason why employee's condition was not work-related at the same time he admitted that he considered employee's disease as "idiopathic" and knew of no activity that would have caused it. *Transcript, 1194.* Based upon Dr. Nadaud's deposition testimony it appears he would never find medical causation of a plantar fasciitis diagnosis in a workers' compensation case.
Dr. Nadaud's opinion relating to the issue of medical causation is irrelevant and/or purposefully misleading because employee's claim did not allege an accident but rather a chronic occupational disease injury.
Neurologist Dr. Raymond Cohen evaluated employee for her bilateral foot complaints through the end of her employment on April 28, 2015. The record includes his June 15, 2016, report. *Transcript, 835.* Unlike Dr. Nadaud, Dr. Cohen was aware of the duration
*Source: https://www.industrydocuments.ucsf.edu/docs/ghgj0236 MNKOI 0000740508*
Employee: Mary Kling
Injury No. 15-063862
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of employee's employment and described specific aspects of employee's job, stating, "... she did do a lot of standing at work on mats which were very worn out and really didn't do much cushioning." Dr. Cohen cited treatment records that demonstrated a gradual onset of employee's condition over time with severe worsening.
Dr. Cohen's report incorrectly alluded to an employer requirement that employee wear steel-toed boots. In fact, employee testified employer only required that she wear shoes that covered her heel and toe. However, absolutely nothing in Dr. Cohen's report indicates that he relied on "steel-toed boots" as a factor in formulating his medical causation opinion. Such is logical in that what is above one's feet (i.e. a steel toe) is obviously irrelevant to a condition afflicting the base of one's feet: plantar fasciitis. The administrative law judge's contention to the contrary is not supported by substantial evidence because it ignores Dr. Cohen's recitation of gradual onset of employee's condition over time with severe worsening of symptoms.
Employee's condition of bilateral plantar fasciitis clearly medically causally related to her job duties from 2013-2015 involving repetitive motion and trauma five days a week for ten-hour shifts standing on concrete. Based on disability from this injury, in combination with employee's qualifying preexisting conditions, consistent with the criteria of 287.220.3 RSMo as discussed in *Cosby v. Treasurer of Missouri*, 579 S.W.3d 202 (Mo. banc, 2019), employee is entitled to an award of permanent total disability against the Second Injury Fund.
Because the majority finds otherwise, I respectfully dissent.
Shalonn K. Curls, Member