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:
- Whether employee's primary injury was medically causally related to her March 9, 2007, work accident;
- 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:
- Muscular and ligamentous lumbar strain with nonspecific right sciatica.
- 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