Brenda DuBose v. Prairie Farms d/b/a Pevely Dairy Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 07-029350

**Employee:** Brenda DuBose

**Employer:** Prairie Farms d/b/a Pevely Dairy Company (settled)

**Insurer:** Fidelity & Guaranty Insurance Company (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. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

Employee worked for employer as a dairy company milk case handler. On March 9, 2007, she sustained injury when she lost her footing and fell onto a concrete dock while dragging a forty to fifty-pound case of milk backwards to unload a trailer.

Employer/insurer Prairie Farms d/b/a Pevely Dairy Company/Fidelity & Guaranty Ins., Co. c/o Broadspire settled employee's claim for $22,593.00 based on 15% of the back rated at the body as a whole. The September 23, 2010, stipulation for compromise settlement noted employer/insurer's payment of $14,736.86 in medical expenses related to employee's injury.¹

This appeal involves employee's remaining claim against the Second Injury Fund for permanent total disability.

Issues at hearing were:

1. Whether employee's primary injury was medically causally related to her March 9, 2007, work accident;
2. Nature and extent, if any, of the Second Injury Fund's liability.

In her January 30, 2020, Final Award, Administrative Law Judge Lee B. Schaefer found:

- Employee was a reliable, hardworking, and a credible witness.

- Employee's expert, Dr. Shawn Berkin, opined that employee's March 9, 2007, work accident was the prevailing factor in causing contusion and sprain to the lumbar spine with degenerative arthritis, lateral recess stenosis, and spondylolisthesis. Dr. Berkin acknowledged that spondylolisthesis and spondylosis are solely degenerative in nature and noted employee reported continuing nagging pain following a 2006 back surgery until the time of her 2007 primary injury.

¹ Employee testified that in fact, employer's group health insurance paid these expenses.

Impry No. 07-029350

Employee: Brenda DuBose

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- Employer/insurer's treating physician, Dr. Petkovich, considered employee's spine condition to be the result of a basic degenerative process and advised employee to follow up with the surgeon who performed her prior, 2006, surgery. Dr. Petkovich opined the employee's fall at work might have caused a temporary exacerbation, but that most of her problems were due to her underlying degenerative condition.

- Employee's surgeon Dr. Levy found no evidence of new or traumatic injury to employee's spine and indicated that employee's 2007 back surgery was a continuation of his earlier treatment. Dr. Levy found that employee's natural lumbar spondylolisthesis led to her need for lumbar fusion.

- Dr. Petkovich's and Dr. Levy's opinions and findings were more persuasive than Dr. Berkin's. "As such, there is no evidence that Claimant's fall at work was the prevailing factor in her medical condition or the prevailing factor in her need for surgery."²

The administrative law judge premised her complete denial of employee's claim against the Second Injury Fund on her finding that employee's March 9, 2007, accident was not the prevailing factor in her medical condition or need for treatment and that employee sustained no compensable injury.

Employee's timely February 17, 2020, amended application for review alleged the administrative law judge erred in:

- Finding employee's injuries did not arise out of and in the course of employment and that employee sustained no compensable injury on March 9, 2007, because this finding is contrary to the substantial and competent evidence presented at hearing and the expert opinions in the record.

- Ignoring evidence the administrative law judge specifically found credible, including employee's testimony, that employee at the very least sustained an exacerbation of her prior injuries on March 9, 2007, due a fall a year after employee returned to work after a prior back injury.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

**Findings of Fact**

Employee was fifty-seven years of age at the time of her March 9, 2007, work injury and seventy years old at the time of hearing. Employee left school in the tenth grade after she became pregnant. She received no further education or training nor did she earn a GED. Employee has never had a driver's license and does not drive. Since leaving high school, she has continuously worked in hard labor jobs to support her family. At the time of the primary injury, employee had worked for employer for twenty years.

² Award, p. 18.

Improvee: Brenda DuBose

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Employee had preexisting work-related disabilities consisting of:

- Low back disability

- Right and left wrist disability for carpal tunnel syndrome

- Left knee disability

Employee also had a non-work related hearing loss in her right ear, due to a fall down the stairs. Because of her significant hearing loss, she exercised caution working with machinery and relied on co-workers to let her know when machinery around her broke down.

Employee's first job with employer involved working in a cooler, unloading stacks that weighed 220 pounds. Employee's last job involved unloading up to 2000, forty to fifty-pound milk cases off of trailers. Employee was on her feet all day, performing heavy lifting, pulling, pushing, and dragging of cases and stacks.

Dr. Levy performed lower back surgery on employee in 2006 consisting of two-level, left sided lumbar micro decompression for back pain and radiculopathy. Employee had a successful result, returned to work, and was doing well until the March 9, 2007, injury.

Due to continued excruciating back pain in the months following employee's March 9, 2007, injury, Dr. Levy performed a back fusion at L3-4 and L4-5 on December 20, 2007. This surgery inserted metal rods and screws and removed two discs from employee's back. Dr. Levy released employee to return to work with no restrictions on March 19, 2008.

Employee returned to work for about six months. She wore a TENS unit and a Velcro back brace. There was no machinery to help employee do her job and the brute force needed to pull and push the forty to fifty pound cases hurt her more and more. Employer allowed employee to take breaks and permitted her coworkers to help her perform her work. Toward the end of her career, employee could not do her job without help from colleagues.

The administrative law judge found:

> Employer was being sold to another company, and new management was brought in to ease the transition. The new management would not allow Claimant to get help from co-workers and would not allow her to take breaks. They made offers to some of Claimant's co-workers to remain on and work with the new company. The offers were made to younger workers with no physical issues. Claimant was not offered a job with the new company. As a result, she "retired" on October 31, 2008. Claimant did not want to retire, but she was forced into it because the new company did not offer her a job.

3 Award, p. 6.

Injury No. 07-029350

Employee: Brenda DuBose

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**Employee's testimony**

Employee felt immediate tingling, numbness radiating down both her legs, and stiffness after the injury. She testified that by the end of Dr. Petrovich's treatment, "My back was hurting so bad it was excruciating, it was just hurting so bad."4

When employee returned to work after Dr. Levy's back fusion employer initially assigned her light duty with a ten-pound weight limit but after a few weeks employee returned to her regular duty. Employee was able to complete her work with help from her colleagues. She took breaks when she could but felt exhausted at the end of the day due to pain in her back, knees, and hands. When employee returned home, she relied on her husband and daughter to cook and perform household tasks, such as cleaning and laundry.

Employee wanted to continue working but could no longer do so when employer's new management relocated workers who had helped employee to other positions and eliminated her breaks. Employee credibly testified that, even had her union helped her negotiate retaining her job with employer's successor she could not have physically been able to perform the work without assistance from her coworkers. Employee grieves the loss of her job and a workplace environment she considered to be "like family."5 She feels stressed by her inability to work and support her family.

Employee currently has pain in her hands, left knee, and lumbar spine. She relies on her husband and daughter for help with household tasks. She has difficulty sleeping. Her injuries have affected her ability to lift, pull, push, reach, walk, stand, kneel and squat. She is no longer able to enjoy dancing. She now lies across her bed to pray because she is no longer able to do so on her knees. Employee believes she is no longer capable of working a full-time job because of pain and physical limitations due to the combination of her injuries. Pain permeates all facets of her life.

**Expert medical testimony**

Dr. Frank Petkovich

Dr. Frank Petkovich, employer's authorized treating physician, saw employee on April 16, 2007, after her March 9, 2007, work injury. Dr. Petkovich recorded employee's report of accidental injury sustained when she was unloading a trailer and fell backward. On that date, he diagnosed employee as having:

1. Muscular and ligamentous lumbar strain with nonspecific right sciatica.
2. Contusion right hip with some underlying degenerative right hip disease.

He noted, "She states that she was having no problem with her lower back prior to this present injury."6

After a June 20, 2007, office visit, Dr. Petkovich noted employee's persistent discomfort despite lighter duty activities, physical therapy and epidural injections. He prescribed a

4 Transcript, 29.

5 Id., 43.

6 Transcript, 925.

Injury No. 07-029350

Employee: Brenda DuBose

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vigorous physical therapy program while continuing to restrict employee from lifting more than fifteen to twenty pounds and avoiding repetitive bending, stooping, kneeling, or squatting.

In an August 15, 2007, report Dr. Petkovich noted employee "[I]s quite uncomfortable today with persistent pain. She did have a prior surgery on her lumbar spine done approximately one and a half years ago. She states that she did well after that surgery until her injury at work. She is now having persistent severe discomfort."7

On that date, Dr. Petkovich ordered a myelogram and post myelogram CT scan and opined that, depending on the results of these studies, employee might ultimately need to undergo surgery on her lumbosacral spine for a lumbar decompression and fusion with instrumentation.

On August 31, 2007, Dr. Petkovich saw employee for a final time in his office. Based on the results of a myelogram and CT scan, Dr. Petkovich diagnosed employee with degenerative lumbar disc disease and spinal stenosis with spondylolisthesis and spinal instability. He noted "[Employee] states that she recovered well from that [Dr. Levy's 2007] surgery and was not having any further problems, up until the time when she injured herself at work and started having recurring lower back and lower extremity pain."8 Dr. Petkovich acknowledged that employee's March 9, 2007, injury "may have caused some temporary exacerbation of [employee's] condition"9 but opined that the majority of employee's problem was due to her underlying degenerative condition. He advised employee, "it ultimately will be up to the insurance company what they would want to do,"10 and suggested she contact the surgeon who performed her prior lumbosacral spine surgery. Dr. Petkovich concluded employee needed no follow up care, absent "any further problems."11

Dr. Armond Levy

Dr. Armond Levy's January 21, 2008, hospital note documented employee's back fusion at L3-4, L4-5. He noted "The patient is a 58-year-old black female who several years ago underwent successful two-level, left-sided lumbar micro decompression for back pain and radiculopathy. She did very well, however, recently she fell and has had unrelenting back pain and left-greater-than-right sciatica with evidence of recurrent spondylotic disease at L3-4 with bulging disk, ligament hyperplasia, and select spondylolisthesis with spondylosis and stenosis at L4-5 as well."12

Dr. Shawn Berkin

Employee produced the deposition and report of Dr. Shawn Berkin. In an independent medical report dated December 14, 2009, based on his April 1, 2009, examination, Dr. Berkin opined that employee's March 2007, accident was the prevailing factor causing contusion and strain to her lumbar spine. He evaluated employee's disability due to the primary injury as 40-42% of the body as a whole at the level of the spine.

7 Id., 938.

8 Id., 940.

9 Id., 941.

10 Id.

11 Id.

12 Id., 1102.

Injury No. 07-029350

Employee: Brenda DuBose

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Dr. Berkin testified that that the combination of primary and preexisting injuries were a hindrance and obstacle to employee's employment or reemployment and that the combination of her disabilities was greater than the simple sum, justifying a loading factor. He recommended a twenty-pound lifting restriction on an occasional basis, a restriction of ten pounds on a frequent basis, and frequent work breaks.

#### Vocational Rehabilitation Counselor Stephen Dolan

Employee produced the deposition and report of vocational rehabilitation counselor Mr. Stephen Dolan. Mr. Dolan based his June 20, 2011, evaluation on a three-hour examination of employee. Employee stood six times during his exam and used a TENS unit to control her pain. Mr. Dolan noted that, historically, employee had repeatedly returned to work after medical problems and did not appear to be looking for a reason not to return to work. He concluded, based on the results of a Wide Range Achievement Test that employee is not qualified for "unphysical" work because of poor academic skills and her hearing problem and that she is unable to do physical work because of Dr. Berkin's restrictions. Mr. Dolan opined that if employee had only sustained her last injury, she would be able to do some sedentary work but that considering employee's age, education, and other disabilities, "No employer is going to hire somebody who has as many problems as Ms. Dubose does."[^13]

In a May 2, 2018, update, Mr. Dolan summarized:

> Mrs. Dubose is not able to tolerate a regular work schedule. She has multiple functional limitations: she cannot distinguish speech in noisy environments; she cannot stoop, kneel or crouch because of her left knee; she cannot use her hands bi-laterally repetitively; she cannot lift more than about ten pounds; she has to rest frequently.[^14]

He concluded employee is not employable in the open labor market.

The Second Injury Fund produced the deposition and report of vocational expert Mr. Benjamin Hughes. Mr. Hughes based his evaluation of employee's ability to work on a records review. He opined that even with Dr. Berkin's restrictions, employee could perform some light duty sedentary work and compete for "a handful of jobs" such as cashier, usher, parking lot attendant, ticket salesperson, or house or office cleaning.[^15] He further suggested employee could explore part-time positions. Mr. Hughes noted that employee returned to her prior job after her back fusion for seven months and that no physician precluded employee from working or found her unable to work in the open labor market. Mr. Hughes acknowledged employee could not return to her prior job with Dr. Berkin's restrictions and that she retired because she was no longer able to do the work. He agreed with employee's expert Mr. John Dolan's evaluation of employee's intellectual abilities but opined that employee had "soft transferable skills" such as

[^13]: Id., 114

[^14]: Id., 152

[^15]: Transcript, 1185

Improvee: Brenda DuBose

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personal responsibility, being on time, being able to work with others or by herself, and completing work in a timely manner. Mr. Hughes did not attempt to place employee in an actual job because doing so was not within the scope of his contract.

We find that employee sustained 15 % of the back rated at the body as a whole related to her March 9, 2007, injury. In so finding, we consider Dr. Berkin's opinion that employee sustained disability related to the primary injury in the amount 40-42 % of the body as a whole. Dr. Levy's opinion demonstrates that employee's work accident was the prevailing factor that caused a change in pathology of her preexisting degenerative back condition and led to employee's need for a back fusion in 2007, distinct from employee's earlier, significantly less invasive and successful 2006 micro decompression surgery. We further rely on employee's credible testimony about her diminished ability to work after the primary injury. We are not constrained by employer/insurer's estimate of disability related to employee's primary injury as reflected in its stipulation for compromise settlement. That said, employer/insurer's payment of compensation based on a settlement estimate of 15 % of the back based on the body as a whole is relevant and further supports our assessment of permanent partial disability related to employee's primary injury. We regard Dr. Petkovich's opinion that employee sustained no disability relating to the primary injury inconsistent with his earlier records documenting employee's work injury and influenced by his concern about employer's insurer's unwillingness to provide coverage for employee's needed back surgery.

We find employee had preexisting permanent partial disabilities consisting of:

We credit the opinion of Dr. Berkin that each of these injuries constituted a potential hindrance or obstacle to employee's employment or reemployment and combined synergistically with disability related to her primary injury to result in disability greater than the simple sum. Employee's credible testimony regarding the combined effects of her disabilities also constitutes substantial evidence of a synergistic effect. Based on this evidence, we assess a loading factor of 15 %.

Consistent with the opinion of the Second Injury Fund's vocational expert Mr. Hughes, we find employee is not permanently and totally disabled. To the contrary, we find employee is able to compete for work in the open labor market despite her inability to return to any position involving hard labor. Employee is honest, reliable and has an excellent work ethic. Her transferable soft job skills include personal responsibility, being on time, being able to work with others or independently, and completing work in a timely manner. We conclude, consistent with Mr. Hughes' vocational assessment,

Injury No. 07-029350

Employee: Brenda DuBose

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that employee's combined disabilities justify an award of permanent partial, not permanent total, disability.

**Law**

Section 287.220 RSMo creates the Second Injury Fund. Section 287.220.2 applies to injuries occurring prior to January 1, 2014, and provides when and what compensation will be paid by the Fund in "all cases of permanent disability where there has been previous disability." *Id.* This section provides, in pertinent part:

> If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, ... receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, 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 which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of the employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

Missouri courts have established the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

> [T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

*Knisley v. Charleswood Corp.,* 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

TI30910137

Injury No. 07-029350

Employee: Brenda DuBose

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To find liability of the Second Injury Fund for permanent partial disability benefits,

[T]he claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. This is referred to as the "synergistic effect." If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability.

*Winingear v. Treasurer of State*, 474 S.W.3d 203, 207-08 (Mo. App. 2015). See also *Pierson v. Treasurer of State*, 126 S.W.3d 386 (Mo. 2004) and *Calvert v. Treasurer of State*, 417 S.W.3d 299 (Mo. App. 2013).

In order to prove a claim for permanent partial disability against the Second Injury Fund, an employee must demonstrate that her preexisting disability combines with a subsequent compensable injury "so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself."16

Simply put, the fund is liable only for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury. This excess for which the fund is liable is referred to as the synergistic effect of the combined disabilities (emphasis added).

*Treasurer of Missouri-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 467 (Mo. 2015).

In *Witte*, the Supreme Court held that 287.220.1 imposes no numerical threshold for permanent partial disability from the employee's last injury. *Id.*, at 467.

*Witte* further instructs that, for purposes of triggering Fund liability based on preexisting disability, 287.220.1 does not allow combination of a major extremity disability with a body as a whole disability but instead "expresses the minimum thresholds only in terms of a singular injury to either the body as a whole or a major extremity". *Id.* 465. However, once the threshold of either fifty weeks of compensation for a body as a whole injury or fifteen percent permanent partial disability of a major extremity is met, pursuant to the statute's plain and ordinary meaning "all preexisting injuries, without the threshold limitation, are to be considered" in the calculation of Fund liability. *Id.* 467.

16 Section 287.220.2. RSMo.

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Injury No. 07-029350

Lay testimony alone can constitute substantial evidence of the extent of disability to an injury or medical condition. *Goleman v. MCI Transporters*, 844 S.W. 2d 463, 466 (Mo. App. 1993) (overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003)); *Griggs v. A. B. Chance Co.*, 503 S.W. 2d 697, 704-705 (Mo. App. 1973). Also, the courts have held that the "testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause and extent of the disability when the facts fall within the realm of lay understanding." *Id.*, 704 (citations omitted).

As we have found, employee sustained permanent partial disability of 15% of the body as a whole attributable to her primary injury. Employer established preexisting disability consisting of 30% of the right wrist, 30% of the left wrist, 35% of the left knee, 25% of the lumbar spine, based on the body as a whole, and 15% of the right ear, based on the body as a whole. The employee's preexisting disability meets the 15% permanent partial disability of a major extremity threshold required to trigger Second Injury Fund liability pursuant to 287.220.

Dr. Berkin's expert opinion and employee's credible testimony established a synergistic relationship between the employee's disabilities across the board. We quantify the Second Injury Fund's liability for permanent partial disability attributable to synergistic interaction between disability to the employee resultant from her primary injury and the employee's preexisting disabilities based on a loading factor of 15%.

15% of the back, based on the body as a whole = 60 weeks

We reverse the award and decision of the administrative law judge. We conclude that pursuant to § 287.220 the Second Injury Fund is liable for weekly permanent partial disability at the stipulated rate of $474.01 for 57.15 weeks beginning on the date the employee reached maximum medical improvement, March 31, 2019.

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Injury No. 07-029350

This award is subject to a lien in favor of Robert J. Merlin, Ray B. Marglous, P. C., in the amount of 25% for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Lee B. Schaefer is attached solely for reference.

Given at Jefferson City, State of Missouri, this **20th** day of October 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

**SEPARATE OPINION FILED**

Shalonn K. Curls, Member

Attest:

**Sandy McNamara**

Secretary

Injury No. 07-029350

Employee: Brenda DuBose

I have reviewed the evidence, read the briefs of the parties, and considered 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 concur with the Chairman's opinion finding that employee sustained a compensable injury on March 9, 2007, when she fell to the ground on a concrete dock while unloading a fifty-pound milk case. Based on the evidence cited in his opinion, employee's injury that day was clearly the prevailing factor leading to her need for back fusion surgery and consequent disability in the amount of 15% of the body a whole.

I further concur with the award's finding that pursuant to § 287.220.2, the law applicable to employee's pre-2014 injury, disability from employee's primary injury combined with qualifying preexisting disabilities to result in greater disability than that attributable to her primary injury alone.

I agree with the Chairman's opinion that the record as a whole supports an award against the Second Injury Fund in this case. For purposes of a consensus, I concur his award of permanent partial disability against the Second Injury Fund.

I write separately to express my personal view that the evidence in this case supports an award of permanent and total disability against the Second Injury Fund. Employee's highly accommodated return to work for approximately six months following her last injury does not preclude a finding that she is permanently and totally disabled. Given employee's history of working exclusively for over forty years in hard labor jobs, very limited education, and permanent physical restrictions, and significant hearing loss, I consider the likelihood of employee securing gainful employment in the open labor market, especially at present, remote at best.

Shalonn K. Curls, Member

Employee: Brenda DuBose

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

Reid K. Forrester, Member

Employee: Brenda Dubose

Dependents: N/A

Employer: Prairie Farms d/b/a Pevely Dairy Company (settled).

Additional Party: Second Injury Fund

Insurer: Fidelity & Guaranty Insurance Company c/o Broadspire Services, Inc. (settled)

Hearing Date: November 4, 2019

Injury No.: 07-029350

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LBS

1. Are any benefits awarded herein? No

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: March 9, 2007

1. State location where accident occurred or occupational disease was contracted: St. Louis, 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 the employment? Yes

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

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant fell when she was pulling a stack of milk crates.

1. Did accident or occupational disease cause death? No

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

1. Nature and extent of any permanent disability: 15% body as a whole – low back

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? $14,736.86
3. Value necessary medical aid not furnished by employer/insurer? None
4. Employee's average weekly wages: Amount necessary for maximum rates
5. Weekly compensation rate: $474.01/$376.55
6. Method wages computation: By agreement and using the table

COMPENSATION PAYABLE

1. Amount of compensation payable from the Second Injury Fund: NONE

An evidentiary hearing was held in the above-referenced matter on November 4, 2019. Brenda Dubose ("Claimant") appeared in person and was represented by counsel, Mr. Robert Merlin. Assistant Attorney General DaNiel Cunningham represented the Second Injury Fund ("Fund"). Claimant previously settled her claim against Prairie Farms d/b/a Pevely Dairy Company ("Employer"), and its insurer, Fidelity & Guaranty Insurance Company c/o Broadspire Services, Inc. ("Insurer").

The parties stipulated to the following facts:

1. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. On or about March 9, 2007, Claimant sustained an accident when she fell when she was pulling a stack of milk crates;
3. Claimant's accident arose out of and in the course of her employment Employer;
4. Claimant provided Employer with proper notice of her accident;
5. Claimant filed her Claim for Compensation in a timely manner;
6. At the relevant time, Claimant earned an average weekly wage of 711.00, for applicable rates of compensation of 474.01 for total disability benefits, and $376.55 for permanent partial disability benefits;
7. Employer/Insurer did not pay any temporary total disability benefits;
8. Employer and Insurer paid $14,736.86 in medical benefits;
9. Claimant reached maximum medical improvement ("MMI") on March 31, 2019;
10. Venue for the Hearing in this matter is proper at the St. Louis office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this Hearing are:

1. Is Claimant's alleged primary injury medically and casually related to her work accident?
2. What is then nature and extent, if any, of the Second Injury Fund's liability?

Claimant offered and had admitted into evidence, the following Exhibits:

Exhibit 1: Amended Claim for Compensation, Injury \# 07-029350

Exhibit 2: Deposition of Mr. Stephen Dolan

Exhibit 3: Deposition of Dr. Shawn Berkin

Exhibit 4: Records from the Division of Workers' Compensation

Exhibit 5: Medical records of Missouri Baptist Hospital

Exhibit 6: Medical Records of Pro Rehab

Exhibit 7: Medical Records of BarnesCare

Exhibit 8: Medical records of Select P.T.

Exhibit 9: Medical records of St. Louis Medical Professionals

Exhibit 10: Medical records of Missouri Baptist Hospital

Exhibit 11: Medial records of St. Anthony's Medical Center

Exhibit 12: Stipulation for Compromise Settlement, Injury \# 07-029350

Exhibit 13: Medical records of Park Central Institute

Parties offered and had admitted into evidence, the following Joint Exhibits:

Joint Exhibit 1/I: Medical records of Missouri Orthopedic and Arthroscopic Surgery

Joint Exhibit 2/II: Medical records of Signature Health

Joint Exhibit 3/III: Medical records of Dr. David Brown

Joint Exhibit 4/IV: Medical records of Dr. Armand Levy

Joint Exhibit 5/V: Medical records of Dr. Hatelid

The Fund offered and had admitted into evidence, the following Exhibits:

Exhibit I: Deposition of Mr. Ben Hughes with attached Exhibits

note: Some of the records submitted at the hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on November 4, 2019.

Based upon the relevant testimony of Claimant at Hearing, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Claimant began working for Employer in 2007. Claimant dropped out of high school in the $10^{\text {th }}$ grade. She does not have a GED. Claimant did not attend trade or vocational school. Claimant did not attend college. All of the training Claimant has received has been on the job.

Prior to Employer, Claimant worked for Sunline Brands/Sunmark filling pixie sticks. At Sunline Brands, Claimant worked on an assembly line and in sanitation. Before she worked at Sunline Brands, Claimant cleaned houses and worked in a nursing home.

While working for Employer, Claimant performed numerous jobs. She worked in the cooler, loading and unloading crates of milk. Claimant also unloaded empty cases from trailers. The cases were then washed and reused. Claimant's work was very physical and included pulling, pushing, kneeling, squatting, and using her upper extremities. The cases out of the trailer weighed 50 pounds, the stacks of crates Claimant moved out of the cooler could weigh 220 pounds.

Claimant spent one year working in the cooler. The work in the cooler was very heavy and more physically demanding. While working in the cooler, Claimant experienced pain in her hands, neck, and low back. Claimant requested a transfer to be a case handler, because that job was less physical.

Claimant worked as a case handler for her last six years at Employer. As a case handler, she would unload empty cases from trucks and trailers, empty trash out of the cases, send the cases to be washed, and then make sure they went to the correct machine to be refilled. The case handler job required a lot of pushing and pulling. As a case handler, Claimant was on her feet all day.

Near the end of her employment, but before her work accident, Claimant needed help performing her job. In particular, her co-workers helped Claimant stack the cases and drag the cases on a chain. Claimant did not have any machinery to help her perform her job. If she was unloading a 30 foot trailer, she would be unloading 2,000 cases stacked 10 high. In a regular size truck, there would be 200 to 300 cases. Claimant always needed help to empty the trailers.

Injury # 07-029350

On March 9, 2007, Claimant was unloading cases from a trailer. Claimant was walking backward and using a hook to drag cases that were stacked 6 high. Claimant was taking the cases to the chain that would take them to be cleaned. Claimant's foot got caught in a pallet strap and she fell onto the concrete dock. Claimant fell so hard that her right shoe flew off.

After she fell, Claimant immediately reported her accident to her Employer. Claimant was experiencing pain in her low back into her legs and numbness and tingling in both of her legs. Employer sent Claimant for treatment at BarnesCare.

When Claimant's symptoms did not resolve, Employer sent her to Dr. Petkovich for further treatment. Dr. Petkovich had Claimant undergo a myelogram and performed injections. When Dr. Petkovich released Claimant from his care, she still had excruciating pain.

Claimant then treated with Dr. Levy. Dr. Levy performed Claimant's first back surgery in 2006. After undergoing an MRI and other tests, Claimant underwent a second back surgery in December of 2007. Claimant had a spinal fusion performed in her low back. Following her surgery, Claimant missed two or three months of work.

When Claimant returned to work, she was on light duty and had lifting restrictions of 5 to 10 pounds. However, once those restrictions were lifted, Claimant had a difficult time performing her job. Claimant had to be more careful with her back, which made her job harder, because she had to be more cautious and work more slowly. Claimant needed help with heavier tasks, and could no longer perform her job without assistance. Claimant also took breaks when she could. Claimant continued to have back pain after returning to work which she treated with a TENS unit and a back brace. However, Claimant continued to have pain in her back.

Employer was being sold to another company, and new management was brought in to ease the transition. The new management would not allow Claimant to get help from co-workers and would not allow her to take breaks. They made offers to some of Claimant's co-workers to remain on and work with the new company. The offers were made to younger workers with no physical issues. Claimant was not offered a job with the new company. As a result, she "retired" on October 31, 2008. Claimant did not want to retire, but she was forced into it because the new company did not offer her a job. She "loved" her job, and had planned on continuing to work.

Claimant had bilateral carpal tunnel surgery in the early 2000s. Prior to her surgery, Claimant had pain in both of her hands and in her arms. She had difficulty gripping and would often drop things. Employer provided the surgery for Claimant's carpal tunnel syndrome. The surgery helped for a while, but eventually, the tingling came back and the soreness increased. Claimant had to wear gloves when she worked in the cooler because the cold temperature made her pain increase. Following her carpal tunnel surgery, Claimant needed more help performing her job. Claimant was slower at performing her job and had difficulty lifting, pulling, and pushing.

In 2004, Claimant injured her left knee while at work. The case cleaner jammed, and Claimant was running to unjam it when she slipped in water on the floor. After her knee injury,

Injury # 07-029350

Claimant had to walk more slowly or her knee would buckle and give out. Stooping and kneeling were also more difficult after Claimant's knee injury. Claimant's knee injury made it more difficult to carry heavy loads, pull, and push.

In the 1970s, Claimant fell down a flight of stairs and landed on the right side of her head. She underwent numerous surgeries, but they did not help, and she lost the hearing in her right ear. Claimant was told a hearing aid would not help her type of hearing loss. Claimant's co-workers would alert her if something was happening because she would often not hear the machines jam or hear someone calling to her. Claimant let all of her co-workers know she could not hear out of her right ear. Claimant eventually adjusted to her hearing loss.

Claimant had her first back surgery, also performed by Dr. Levy, in 2006. Claimant had a spinal decompression. Claimant did not injure her back in an accident, but testified it was from years of doing hard work. Prior to undergoing surgery, Claimant had tingling and numbness going down her legs. After injections failed to provide relief, Claimant underwent the surgery. When Claimant first returned to work, she was doing well and had very little pain. However, as time went on, her back worsened and affected her ability to work.

Currently, Claimant's back is painful, aches, and is stiff. Before her last work accident, Claimant's prior injuries made her job harder. However, when Employer ran the business, Claimant loved working there; it was like a family. If Claimant could have continued to get assistance from co-workers, she would have continued to work. Losing her job made Claimant stressed, sad, and made it difficult for her to sleep.

After being forced to retire, Claimant applied for Social Security Disability, which she received without a Hearing. Claimant's current hobbies include sewing, reading, and praying. At most, she can lift 10 pounds. Claimant does not believe she is employable in a full time position.

On cross-examination, Claimant agreed that she did not have any permanent restrictions following the surgeries on her knee, wrists, or after her first back surgery. She continued to work a heavy, physical job until she retired. However, she did receive assistance from her co-workers.

Claimant was a member of the Teamsters Union. Before she was forced to retire, she did not discuss seeking accommodations through her union. After she left Employer, she began to collect retirement benefits from the Teamsters. Claimant never discussed an alternative to retirement with her union representative. Claimant never discussed vocational rehabilitation with Employer or the union.

After Claimant's last back injury, and before she left Pevely, her co-workers helped her as much as they could. They helped Claimant even though the new management did not approve of her receiving assistance.

Claimant used her health insurance to pay for Dr. Levy's second surgery to her back. Employer/Insurer did not pay for Dr. Levy's treatment nor did they authorize his treatment.

Claimant testified that she lost work and promotions due to her hearing loss and her first back surgery, but not due to her knee injury. She was at the top of seniority before she left Pevely.

Exhibits

Claimant's Exhibits

Primary Back Injury

(Exhibits 7, 2/II, 8, 5, 10, 4/IV, 11 & 12)

On March 14, 2007, Claimant treated at BarnesCare where she reported injuring herself when she was walking backwards at work and fell. (Exhibit 7) She reported pain in her low back. Claimant was diagnosed with a thoraco-lumbar strain. She was given work restrictions of no lifting over 5 pounds, limit repetitive bending and twisting, and limit prolonged standing and sitting. Claimant was also referred to Physical Therapy. Claimant treated at BarnesCare for both doctor visits and Physical Therapy.

Claimant's symptoms initially improved, but they then increased and included radicular pain with weakness. Claimant also reported that she was having difficulty working due to her pain. Claimant had an MRI of her hip that was negative for fracture, but did reveal trochanteric bursitis and muscle strain. Because Claimant's symptoms were worsening, it was suggested that she be referred to an orthopedic doctor. Claimant was then referred to Dr. Frank Petkovich.

Claimant first saw Dr. Petkovich on April 16, 2007. (Joint Exhibit 2/II) Dr. Petkovich noted Claimant was having low back pain into her right gluteal region and right thigh. He diagnosed Claimant with a lumbar sprain and sent her for an MRI with contrast. Claimant continued to undergo physical therapy while awaiting approval for her MRI. When the MRI was performed, it revealed spinal stenosis at the L4-5 level with some nerve root impingement and early spondylolisthesis at L4-5. Dr. Petkovich recommended that Claimant continue physical therapy and undergo epidural steroid injections in her low back. The doctor noted Claimant had degenerative changes at L4-5 leading to the stenosis.

Claimant received an epidural injection which seemed to reduce her symptoms. Dr. Petkovich then referred Claimant for a more vigorous physical therapy program. When Claimant returned to the doctor on July 11, 2007, she reported continued pain in her low back and gluteal region. She had received another epidural injection, which did not provide much relief. Despite Dr. Petkovich referring Claimant to the Work Center for aggressive physical therapy, the Employer/Insurer instead sent her to HealthSouth for physical therapy. (Exhibit 8) The doctor opined that Claimant's physical therapy was substandard, and that she needed to be seen at the Work Center if she was going to return to full duty.

On July 27, 2007, Dr. Petkovich noted Claimant was "quite miserable" with persistent pain. He again recommend that she attend physical therapy at the Work Center. He opined that the physical therapy at HealthSouth was making her worse. On August 15, 2007, Claimant

Injury # 07-029350

ported to Dr. Petkovich that she continued to be in severe pain. She reported pain in her back radiating into both of her lower extremities. Because of her continued severe pain, Dr. Petkovich recommended that Claimant undergo a myelogram and a post-myelogram CT.

The myelogram and post-myelogram CT were performed on August 28, 2007. (Exhibit 10) The tests revealed Grade 1 degenerative spondylolisthesis at L3-4, with evidence of instability at L3-4. Claimant also had advanced degenerative changes at L4-L5 with moderate spinal cord stenosis. There was evidence of Claimant's prior laminectomy and discectomy at L3-4.

Based on the myelogram and post-myelogram CT findings, Dr. Petkovich diagnosed Claimant with degenerative lumbar disc disease including spinal stenosis, spondylolisthesis, and instability. He noted that the findings represented degeneration at the site of Claimant's previous surgery. Further, while her work accident may have caused a temporary exacerbation of her condition, the majority of her problems were attributable to degeneration. Therefore, Dr. Petkovich recommended Claimant contact the surgeon who performed her prior low back surgery.

On October 9, 2007, Claimant returned to Dr. Armond Levy, who performed her first back surgery. (Joint Exhibit 4/IV) Claimant reported she had been doing well after her previous surgery until she fell in March. Since her fall, she had received epidural steroid injections and physical therapy.

Claimant had x-rays that revealed degenerative spondylolisthesis. On November 14, 2007, Dr. Levy noted Claimant had hypermobility in her lumbar spine and would require a fusion. Claimant underwent a fusion at L3-4 and L4-5 on December 20, 2007. (Exhibit 11) When Claimant returned to the doctor on December 27, 2007, she reported a slow improvement in her symptoms.

Claimant was seen by Dr. Levy again on February 5, 2008, and reported improvement of her pre-operative symptoms. At her March 6, 2008 office visit, Dr. Levy released Claimant to return to work with no restrictions on March 19, 2008.

Claimant returned to Dr. Levy on August 5, 2008, and reported that her symptoms had improved. She was continuing to use the bone growth stimulator, and wore a back brace as needed. When Claimant returned to Dr. Levy on December 17, 2008, she reported that she was doing well and was "fully functional".

Dr. Levy completed numerous forms for Disability insurance and other insurance during the course of his treatment of Claimant. One form, completed in December 2007, indicates Claimant had "natural lumbar spondylolisthesis and stenosis". On another Claim for Disability Insurance, Dr. Levy indicated Claimant's back condition dated back to January 11, 2006, and was due to a natural condition rather than an accident. On another form, Dr. Levy indicated Claimant was suffering from "Lumbar hypermobility and recurrent/residual lateral recess with mild foraminal stenosis", which he first treated on January 11, 2006.

**Injury # 07-029350**

Claimant settled her primary injury for 15% of the body - back. (Exhibit 12)

Employer/Insure did not pay any temporary total disability and paid $14,736.86 in medical bills.

*(Exhibit 4, 5/V & 4/IV)*

Claimant injured her low back in 1986 while working for Sunmark Manufacturing. (Exhibit 4) Claimant was under a "guillotine" table, came up too soon, and hit her low back on the frame of the table. Claimant filed a Claim for Compensation for this injury. Claimant was diagnosed with a thoraco-lumbar contusion. She was taken off work and sent for physical therapy. Claimant settled this injury for 5.5% body as a whole.

On May 11, 2005, Claimant saw Dr. Michael Hatelid, a neurologist, for complaints of back and bilateral leg pain. (Joint Exhibit 5/V) Claimant reported she had experienced back pain for three or four years that had gradually worsened. She was now experiencing back pain with numbness and tingling in her legs. Claimant was sent for a NCV/EMG and referred to physical therapy. Claimant continued to experience pain, and at the July 6, 2005 visit, was referred to pain management. Dr. Hatelid noted Claimant's pain was increasing and made it difficult for her to stand and change positions.

Claimant continued to see a pain management doctor and to wear a back brace as needed. However, when Claimant returned to Dr. Hatelid on December 1, 2005, he found that the ESIs had only provided temporary relief and her pain was increasing. As a result, he recommend Claimant consult with a neurosurgeon.

Claimant first saw Dr. Armond Levy on January 11, 2006. (Exhibit 4/IV) Claimant reported pain in her low back, bilateral hips, and bilateral legs. Because Claimant's MRI revealed L3-4 and L4-5 recess stenosis, Dr. Levy recommended Claimant undergo a lumbar micro decompression. On February 3, 2006, Claimant had a lumbar micro decompression. When Claimant returned to Dr. Levy on February 14, 2006, she noted that her symptoms had improved. Dr. Levy found she was doing "extremely well". On March 29, 2006, Claimant reported she had aching in her back, but she no longer had any radicular symptoms. On April 26, 2006, Claimant was released to return as needed.

*(Exhibits 4, 3/III, & 6)*

Claimant began suffering bilateral carpal tunnel complaints on or about September 28, 2004. (Exhibit 4) Employer/Insurer provided treatment for these complaints with Dr. David Brown. (Joint Exhibit 3/III) Claimant first saw Dr. Brown on November 2, 2004, and reported symptoms of pain and numbness and tingling in both of her hands. Dr. Brown sent Claimant for repeat EMG/NCV tests. The studies confirmed a diagnosis of bilateral carpal tunnel syndrome.

.aimant underwent right and left carpal tunnel releases. Claimant also had physical therapy at PRORehab after her surgeries. (Exhibit 6) Claimant was released to full duty on March 14, 2005. She settled this injury for 15 % of each wrist with a 10 % loading factor.

Claimant saw Dr. Thomas Hawk on January 21, 2003, with complaints of bilateral knee pain. Claimant reported that her left knee was more painful than the right. (Joint Exhibit 1/I) Claimant was sent for an MRI that revealed joint effusion, osteoarthritis, and tears in the meniscus. Claimant underwent arthroscopic surgery on her left knee on January 31, 2003. Following her surgery, Claimant's knee improved. She was released to full duty on February 24, 2003.

Claimant fell down some stairs in approximately 1973. (Exhibit 13) She did not have immediate hearing loss, but shortly thereafter noticed a progressive hearing loss in her right ear. Claimant underwent surgery in 1976; the doctor discovered the stapes in Claimant's ear were not functioning properly. Claimant underwent a right stapedectomy with insertion of a House wire loop. Claimant had another surgery in 1977, in which the doctor closed a round window fistula in her ear.

Claimant was seen in 1988 complaining of persistent vertigo since her surgery in 1977. Dr. Herzog opined Claimant's symptoms were due to either a persistent perilymphatic fistula or a serous labyrinthitis. Claimant underwent a middle ear exploration to determine the cause of her vertigo. When the surgery was performed, a fistula was found and closed, and Claimant was expected to have a good recovery.

An audiometric evaluation performed in 1988 revealed that Claimant had mild sloping to profound sensorineural hearing loss in her right ear.

Dr. Berkin examined Claimant on April 1, 2009 and prepared a report dated December 14, 2009. Dr. Berkin was deposed on November 6, 2018. (Exhibit 3)

Dr. Berkin reviewed medical records regarding Claimant's primary and pre-existing injuries. Dr. Berkin also took a history from Claimant, including the symptoms she was

**Injury # 07-029350**

Currently experiencing. Claimant reported that she fell in March of 2007 while working in a trailer and struck her low back. When she treated with BarnesCare, the doctor diagnosed Claimant with a lumbar strain. Later, Claimant also developed sciatica. Claimant received epidural injections, but they were not helpful. She then had surgery with Dr. Levy. She returned to work with a 15 to 30 pound lifting restriction. Claimant told Dr. Berkin she worked from March of 2008 until she retired in December of 2008.

At the time she was examined by Dr. Berkin, Claimant had pain and tenderness in her low back with stiffness and limited motion. Her symptoms worsening with straining, twisting, and lifting. Claimant had a prior back injury in 2005. Claimant also injured her low back in 1986. Claimant reported she underwent left knee surgery in January of 2003. At the time of her exam, Claimant reported her knee was affected by changes in the weather. Claimant had carpal tunnel surgery in 2005. She reported she had weakness in her hands and that they fatigued easily. Claimant also reported that she had undergone several surgeries to her right ear, and had a substantial hearing loss in that ear.

Upon exam, Claimant had tenderness over her paraspinal muscles. The range of motion in her lower back was limited by pain. As a result, her range of motion was limited in all planes. Claimant had positive straight leg raising at 45 degrees. Dr. Berkin found Claimant had more muscle, rather than nerve, issues in her low back.

Claimant's left knee was painful on palpation and lateral stressing, but there was no instability. Claimant's left wrist was tender and exhibited a positive Tinel's sign. Claimant's right wrist was normal.

As a result of Claimant's March 2007 injury, Dr. Berkin diagnosed Claimant with a contusion, degenerative arthritis, and lateral stenosis with a resulting fusion. Dr. Berkin testified that Claimant's job was the prevailing factor in causing this diagnosis. He assessed Claimant's permanent partial disability from her primary accident at 42% of the body as a whole. He assessed her prior lumbar spine injuries at 25% permanent partial disability of the body as a whole.

In addition, Dr. Berkin assessed Claimant's pre-existing hearing loss at 15% body as a whole. He rated Claimant's pre-existing carpal tunnel syndrome at 30% of each upper extremity at the wrist. Last, Dr. Berkin rated Claimant's pre-existing left knee injury at 35% of the knee.

Dr. Berkin opined that "the combination of her disabilities is greater than the simple sum." Dr. Berkin recommended continuing treatment and exercises for Claimant as well as imposing permanent restrictions.

On cross-examination, Dr. Berkin agreed that Dr. Petkovich found that the majority of Claimant's problems in her low back were degenerative and had, therefore, recommended she seek treatment on her own. Dr. Berkin also agreed that the May 7, 2007, MRI of Claimant's low back showed stenosis with degenerative changes, but no focal disk protrusion. In addition, Dr. Berkin agreed that Dr. Levy's pre- and post-operative diagnoses of spondylolisthesis and spondylosis, were degenerative conditions.

Dr. Berkin agreed that after her first back surgery, when Claimant returned to work, she continued to experience nagging back pain, but did not have any radiation. Neither Drs. Brown nor Hawk imposed work restrictions on Claimant following her carpal tunnel or knee surgeries. Claimant was not wearing hearing aids at the time of her examination, and did not have any difficulty answering Dr. Berkin's questions.

Dr. Berkin testified that the restrictions he imposed could apply to more than one body part, except for those that were clearly related to her hands or hearing loss. Dr. Berkin noted that Claimant had a "pretty good result" from her back surgery.

Mr. Dolan conducted a vocational assessment of Claimant at her attorney's request. (Exhibit 3) He met with Claimant on May 31, 2011, and spoke with her by phone in May of 2018. The phone meeting was to assess Claimant's current status and to determine if her situation had changed since 2011. Mr. Dolan determined her status remained much as it had been in 2011. Mr. Dolan wrote a report dated June 20, 2011, and then wrote an addendum dated May 2, 2018.

When Mr. Dolan met with Claimant, he asked her background questions regarding her education and work history. Mr. Dolan also asked about her medical history including current treatment and her current limitations.

Mr. Dolan administered the Wide Range Achievement Test ("WRAT") to Claimant. The WRAT measures reading, spelling, and math abilities. On the WRAT, Claimant recognized words at the $10^{\text {th }} grade level and comprehended sentences at the 8^{\text {th }} grade level. Claimant spelled at the 6^{\text {th }} grade level and performed math at the 5^{\text {th }} grade level. In almost every category, Claimant performed in the bottom 10^{\text {th }} to 20^{\text {th }}$ percentile for her age group.

Mr. Dolan did not talk about vocational rehabilitation with Claimant, because he did not find that she was employable.

Claimant was in her 60s when she met with Mr. Dolan and had not completed high school. He noted that many jobs require a high school education. Mr. Dolan also noted that Claimant had difficulty staying in one positon for an extended period of time; she had to stand on six occasions during the interview. Claimant reported her pain increased if she remained in one position. Claimant also told Mr. Dolan she had a TENS unit she used to control her pain.

Mr. Dolan found that Claimant's hearing loss in her right ear would limit the type of jobs she could perform. However, Mr. Dolan noted no doctor placed any restrictions on Claimant following her ear injury and surgeries.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 07-029350

Claimant also injured her left knee and had surgery. Mr. Dolan testified Claimant would have difficulty performing any job that required flexing her left knee. Because of her bilateral carpal tunnel surgery, Claimant would have difficulty performing any job that required constant use of her hands for fine manipulations.

Claimant no longer has a Driver's license. She stopped driving after she was involved in an accident. Claimant was a very steady and reliable worker. She worked for her last employer for a very long time. She returned to work after several surgeries. All of the work she performed would be consider unskilled. Her last job was very physical.

When Claimant was working for the employer, she never had any accommodations, but her co-workers helped her when she needed assistance. Mr. Dolan believed Claimant gave all of her energy to her job, and was worn out at the end of the day. After Claimant's 2006 back surgery, she became fatigued more easily and took pain medication at the end of her workday. Claimant also took muscle relaxers to be able to sleep.

Mr. Dolan relied on the restrictions imposed by Dr. Berkin when determining whether Claimant could be employed in the open labor market. Her also relied on Claimant's self-reported limitations which included inability to sit for more than 20 minutes, inability to stand for more than 30 minutes, only able to walk two blocks, difficulty bending at the waist, and difficulty with bending. Claimant reported she could lift and carry 10 pounds without pain. Claimant indicated her pain level ranged from six to seven out of ten throughout the day. Mr. Dolan noted that Claimant's self-reported limitations closely matched those given by Dr. Berkin.

Claimant does perform many household tasks, but she does them more slowly than she used to and takes breaks. She cannot vacuum because it causes pain in her low back, wrists, and left knee. Claimant gets about four to five hours of sleep a night due to back pain. Claimant no longer dances or plays badminton or volleyball.

Mr. Dolan testified that Claimant's employability was restricted by her low level of education, age, work experience in only unskilled jobs, and physical restrictions. Because of her poor academic skills, Claimant can only perform unskilled work which is usually physical, but she cannot perform physical work because of her physical restrictions. When Mr. Dolan talked to Claimant on the phone in 2018, her restrictions and limitations were much the same, however, they had increased somewhat as she had aged. Mr. Dolan opined Claimant was unemployable based on the totality of her physical injuries.

On cross-examination, Mr. Dolan agreed Claimant was performing work beyond Dr. Berkin's restrictions when she worked for Employer. Mr. Dolan agreed that Dr. Berkin did not find Claimant to be permanently and totally disabled. Mr. Dolan agreed that when Claimant was working for Employer, she did not have any permanent, physician-imposed restrictions related to her hearing loss, knees, back, or carpal tunnel surgery. When working for Employer, Claimant also did not have the restriction/requirement that she recline throughout the day.

14

Mr. Hughes performed a records review to determine if Claimant was employable in the open labor market. (Exhibit I) He did not meet Claimant. While it is helpful to meet with the person who he is evaluating, if he has sufficient information from the medical records, he is comfortable issuing his report.

Mr. Hughes reviewed Mr. Dolan's report to gain information regarding Claimant's vocational background and vocational testing. Mr. Hughes opined that Claimant did well on the WRAT considering the scores he often sees. In addition, he found it significant that she scored so high on the WRAT without a high school degree or a GED.

Mr. Hughes also reviewed Claimant's deposition and her medical records. Claimant's deposition testimony helped him understand her background, her current situation, and her complaints.

Mr. Hughes testified that Dr. Levy, Claimant's treating surgeon, released Claimant to return to work in March of 2008 with no restrictions. Further, he found no other physician imposed restrictions in the medical records he reviewed, including those from Drs. Hawk and Brown. Mr. Hughes noted that Dr. Berkin imposed numerous restrictions, but he did not find those restriction precluded Claimant from working in the open labor market. Claimant would have to work at the light level, but there are light level jobs he thought Claimant could perform.

Drs. Levy, Brown, and Hawk did not impose any restrictions on Claimant, therefore, she would qualify for any job in the open labor market. Even considering Dr. Berkin's restrictions, Claimant could work at the light level. When Mr. Hughes added Claimant's self-reported limitations, he still found she could perform sedentary work. Mr. Dolan further opined that there is sedentary work, within Dr. Berkin's restrictions, that Claimant could perform without accommodations.

Mr. Hughes noted Claimant's accident occurred 11 years prior to his deposition, therefore, she was much younger. He further noted Claimant returned to the same job following her back surgery and worked at the job for 7 months. Claimant left Employer when she retired, she was not fired because she could not perform the job. Claimant's job with Employer would have been classified as heavy under the Dictionary of Occupational Titles.

Mr. Hughes indicated that he did find a report from any doctor finding Claimant permanently and totally disabled.

Based on the records he reviewed, Mr. Hughes found that relying on Dr. Levy's records, Claimant could return to any job she previously held. Based on Dr. Berkin's restrictions, she

could perform light level work. At Employer, until she retired, Claimant was working at a level well above Dr. Berkin's restrictions.

Mr. Hughes opined Claimant could perform jobs such as usher, cashier, parking lot attendant, ticket taker, and office cleaner; all of which fall into the sedentary to light level or work. He also noted that part-time employment is competitive in the open labor market. Based on Claimant's restrictions, he believed she could be competitive in the part-time labor market.

On cross-examination, Mr. Hughes indicated he would like to have met with Claimant in person in 2008. Mr. Hughes agreed that Claimant received help from her co-workers at Employer, however, she never testified that her co-workers did all of her heavy lifting. Even if she received help with all of the heavy lifting, she was still working at the medium level.

Mr. Hughes agreed that Claimant had limited education. He also agreed that all of Claimant's training was on the job. Although Claimant did not have hard transferrable skills, she did have "soft" transferrable skills, such as being a reliable employee and holding a job for many years.

Mr. Hughes did not conduct a labor market survey to determine how many jobs were available within Claimant's restrictions because she was retired and had been for some time. Mr. Hughes agreed that Claimant retired in part due to her back pain. He also agreed some employers might hesitate to hire someone of her age with her restrictions. However, based on her strong resume and work ethic, had she looked for a job in 2008, she might have been successful.

In a workers' compensation proceeding, the "claimant has the burden of proving all the essential elements of the claim." Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo.App. E.D. 1996) ${ }^{1}$. Under Section 287.020, "total disability" is defined as the "inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent and total disability is whether Claimant is able to compete in the open labor market given his or her present physical condition. Messex v. Sachs Elec. Co., 989 S.W.2d 206 (Mo. App. E.D. 1999). The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. W.D. 2011). However, before the Second Injury Fund's liability can be considered, the medical causation and disability from Claimant's primary injury must be determined.

[^0]

[^0]: ${ }^{1}$ In clarifying the proper standard of review, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), overruled Cook and a number of prior appellate decisions on this discrete point of law. I cite and rely on several such Hampton cases in this opinion for legal propositions unrelated to the standard of review, without further notation.

Claimant's back injury and surgery, and the resulting disability, were not medically casually related to her work injury.

Section 287.020.3(1) RSMo. sets forth the statutory test for medical causation, and provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

The determination of whether an accident is the prevailing factor in causing a workers' compensation claimant's condition is an inherently factual one. *Cole vs. Alan Wire Company, Inc.*, 521 bS.W.3d 308, 210-315 (Mo.App. SD 2017). However, medical causation must be established through medical evidence showing the relationship of the complained of condition and the asserted cause. *Gordon vs. City of Ellisville*, 268 S.W.3d 454, 460-461 (Mo.App. ED 2008), *Cole* at 610-615. When there is conflicting evidence from two medical experts or conflicting theories, it is up to the Labor and Industrial Relations Commission to determine which expert or theory should be believed. *Johnson vs. Indiana Western Exp., Inc.*, 281 S.W.2d 885, 890-893 (Mo. App SD 2009). An expert's opinion must be supported by competent and substantial evidence. *Payne vs. Thompson Sales Company*, 322 S.W.3d 590, 592-593 (Mo.App. SD 2110).

In the present case, there are conflicting theories of the cause of Claimant's back complaints, second back surgery, and resulting disability. Clearly, Claimant fell while at work. However, Claimant bears the burden to prove that fall was the prevailing factor in causing her back complaints, subsequent surgery, and resulting disability. *Cole* at 315-317. In this case, there is not a dispute between experts, but rather a dispute between Claimant's treating doctors and her rating doctor.

Dr. Berkin, Claimant's rating doctor, opined that Claimant's work accident was "the prevailing factor in causing the contusion and strain to the lumbar spine with degenerative arthritis and lateral recess stenosis at L3-4 and L4-5 and spondylolisthesis of L3 on L4". In his deposition, Dr. Berkin engaged in the following exchange:

Q Now within a reasonable medical certainty, is it your opinion that her job was the prevailing factor in causing those diagnoses and the surgery she had?

A Yes. (Exhibit 2, page 24)

Dr. Berkin did not elaborate on his opinion either in his report or in his deposition. On cross-examination, Dr. Berkin agreed that the MRI taken on May 7, 2007, revealed stenosis with degenerative changes, but no focal disk protrusion. Further, Dr. Berkin agreed that Dr. Levy's diagnosis in his Operative Report was spondylolisthesis and spondylolysis, which are solely degenerative in nature. (Exhibit 3, page 30) Dr. Berkin also noted Claimant reported continuing

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 07-029350

"nagging pain" following her first back surgery up until her work accident. (Exhibit 3, pages 31-33).

Dr. Petkovich, who treated Claimant at Employer's request, reviewed Claimant's myelogram and post-myelogram CT and determined Claimant had grade 1 spondylolisthesis at L3-4 which was degenerative. (Joint Exhibit 2/II) Further, the degenerative spondylolisthesis was causing instability in Claimant's spine. Claimant also had stenosis at L4. Because these findings were degenerative in nature, and part of the "basic degenerative process", Dr. Petkovich advised Claimant to follow up with Dr. Levy who performed her prior surgery. He further opined that her fall at work might have caused a temporary exacerbation, but most of her problems were due to her underlying degenerative condition.

When Claimant returned to Dr. Levy, he reviewed her old and new MRIs, and determined she had hypermobility with residual/recurrent lateral recess and mild foraminal stenosis. (Joint Exhibit 4/IV) Dr. Levy's pre- and post-operative diagnosis was spondylolisthesis and spondylosis with radiculopathy. He found no evidence of new or traumatic injury to Claimant's spine. In all of the paperwork Dr. Levy completed for Claimant, including paperwork for Disability Insurance, he indicated he first treated her back on January 11, 2006, and indicated that the second back surgery was a continuation of that treatment. Further, he noted her "natural lumbar spondylolisthesis" led to the need for her lumbar fusion. He never opined that Claimant's fall at work led to any new trauma to her back or the need for the fusion to her back.

Understandably, Claimant was jarred when she fell. Claimant was a credible witness and was a reliable and hard-working employee. I do not doubt that she had an increase in symptoms following her fall. But, she had only been back to work for one year after her prior back surgery, and she reported to Dr. Berkin that she had "nagging pain" in her back for that year.

I find the opinions of Dr. Petkovich, and particularly the findings of Dr. Levy, to be more persuasive than that of Dr. Berkin. In particular, I find it significant that Dr. Levy, who treated and operated on Claimant both before and after her fall, linked all of her treatment back to the first date he treated her, January 11, 2006. He clearly thought Claimant's medical condition and second surgery were due to the continuing degeneration in her lumbar spine. He found no evidence of any new trauma to Claimant's spine nor did he find any evidence of a traumatic disk injury. As such, there is no evidence that Claimant's fall at work was the prevailing factor in her medical condition or the prevailing factor in her need for surgery.

Because neither Claimant's fall was not the prevailing factor in her medical condition or the prevailing factor in her need for treatment, I find that Claimant did not sustain a compensable injury. Because she did not sustain a compensable injury, there can be no Second Injury Fund liability. Therefore, this case is denied.

18

Issued by DIVISION OF WORKERS' COMPENSATION

I find the Second Injury Fund is not liable for permanent partial or permanent total disability in this matter. Claimant failed to prove that she sustained a compensable injury, in that she did not prove her fall at work was the prevailing factor in causing her medical condition or medical treatment.

I certify that on **1-30-20** 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 **Mr.**


Made by **Lulu Schaefer**

Administrative Law Judge

Division of Workers' Compensation