Cathy Hinklin v. Stone Crest Motel

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 11-111607

**Employee:** Cathy Hinklin

**Employer:** Stone Crest Motel (settled)

**Insurer:** Missouri Employers Mutual (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 10, 2019. The award and decision of Administrative Law Judge Amy L. Young, issued December 10, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

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

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

Secretary

Injury No.: 11-111607

Employee: Cathy Hinklin

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 disagree with the majority's decision to affirm the administrative law judge's award. I do not believe that, in combination with her preexisting disabilities, employee became permanently and totally disabled after her November 17, 2011 primary work injury.

I would like to start out by stating that I think that employee is an honorable person. However, she appears to minimize the facts surrounding her job duties and activities between 2005 and her November 17, 2011 work injury. I believe that employee was permanently and totally disabled before her November 17, 2011 work injury, and I can't find anything in the record that would demonstrate to me that she officially recovered from being permanently and totally disabled before the primary injury. The surveillance video that was entered into the record by Second Injury Fund demonstrates that employee was able to move outside of the physical restrictions put in place by her medical doctors.

Employee also appears to have a selective memory. For instance, when directly asked about whether she traveled to attend a Celebrate Recovery event, employee gave a vague response that she "probably" did. However, after she was shown surveillance footage of what appeared to show her exceeding her physical limitations, she was able to recall the contents of a tote as being the lightest items on the list of donations being gathered, and specific items in a tote that she carried out of an event that she minutes earlier wasn't certain she attended.

Additionally, there was no medical expert testimony that would explain any improvement of employee's memory and cognition between 2005 and 2011. I could not find any evidence that employee's memory worsened after 2011. Moreover, employee's activities were inconsistent with someone claiming significant memory and cognitive issues. Employee prepares and presents sermons, leads breakout sessions, officiated funerals, conducted baptisms, serves as a state representative for Celebrate Recovery¹ and is involved in events across the state.

To summarize, I believe that the administrative law judge's award should be reversed in its entirety. Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

¹ Celebrate Recovery is a 12 step support group.

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? November 17, 2011.
5. State location where accident occurred or occupational disease contracted: Wayne County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was the employer insured by above insurer? Yes.

Employee: Cathy Hinklin

Injury No. 11-111607

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee was moving a mini-fridge, felt a pop, and sustained injury to her cervical spine.

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

1. Parts of body injured by accident or occupational disease: Cervical spine and head (migraines).

1. Nature and extent of any permanent disability: 33% of the body as a whole referable to the cervical spine.

1. Compensation paid to date for temporary total disability: $3475.85.

1. Value necessary medical aid paid to date by the employer-insurer: Unknown.

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 744.82.

1. Weekly compensation rate: 496.55 for temporary total and permanent total disability and $425.19 for permanent partial disability.

1. Method wages computation: By stipulation.

A. Amount of compensation payable: Employee's claim against the employer-insurer settled by compromise settlement agreement prior to the hearing.

B. Employee awarded permanent total disability benefits from the Second Injury Fund (See Award).

1. Second Injury Fund liability: Yes. See Award.

1. Future requirements awarded: N/A.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Joseph P. Rice, III.

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On September 11, 2019, the employee, Cathy Hinklin, appeared in person and with her attorney, Joseph P. Rice, III for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorneys, Assistant Attorneys General Keyla Rhoades and Rachel Harris. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Employers Mutual Insurance.
2. On November 17, 2011, the employee was an employee of Stone Crest Motel and was working under the Workers' Compensation Act.
3. On November 17, 2011, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 744.82, resulting in a compensation rate of $\ 496.55 for temporary total and permanent total disability benefits and $\ 425.19 for permanent partial disability benefits.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid seven weeks of temporary disability benefits in the amount of $\ 3475.85.

1. Liability of the Second Injury fund for permanent partial versus permanent total disability.
2. The date Employee reached maximum medical improvement.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

Exhibit 1: Genesis Health Care

Exhibit 2: Orthopaedic Associates

Exhibit 2A: Orthopaedic Associates

Exhibit 2B: Orthopaedic Associates

Exhibit 2C: Orthopaedic Associates

Exhibit 2D: Orthopaedic Associates

Exhibit 3: Dr. Franklin McGinty

Exhibits 14B (Deposition of Dr. Volarich) and 16 (Deposition of Susan Shea with Reports from 10/2004 and 8/11/2015 attached) were admitted into evidence subject to Employee's objections to portions of her own exhibits. Employee's objections were taken under advisement and are addressed below under RULINGS ON OBJECTIONS.

The Second Injury Fund Exhibits:

Employee: Cathy Hinklin

Injury No. 11-111607

Exhibit M: Part 1 video June 24, 2018 surveillance

Exhibits C and D were admitted subject to Employee's objections. Employee's objections were taken under advisement and are addressed below under RULINGS ON OBJECTIONS.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The Court took judicial notice of all the records contained in the files of the Division of Workers' Compensation.

RULINGS ON OBJECTIONS:

Exhibit 14B: Deposition of Dr. Volarich 2/23/18

Employee offered Exhibit 14B, but objected to portions of the Exhibit as follows: p. 20, line 24; p. 21, lines 8-10, and p. 22, line 18. Employee objected to these portions of the exhibit on the basis that they are not relevant and that these portions of the exhibit refer to a report prepared by Art Smith, vocational expert, (now deceased) that was not offered into evidence at hearing. The SIF's response was that cross-examination questions were asked to identify what information Dr. Volarich reviewed and relied upon in formulating his opinions. The SIF also argued that Mr. Smith's report was provided to Employee's vocational expert, Susan Shea. Employee's objection is overruled and Exhibit 14B is admitted in its entirety.

Exhibit 16: Deposition of Susan Shea with Reports from 10/2004 and 8/11/15 attached

Employee offered Exhibit 16, but objected to p. 21, line 14 on the basis of relevance and this this portion of the exhibit refers to a report prepared by Art Smith, vocational expert, (now deceased) that was not offered into evidence at hearing. The SIF's response is the same as above and the SIF added that Ms. Shea did review Mr. Smith's report, therefore the question posed was relevant. Employee's objection is overruled and Exhibit 16 is admitted in its entirety.

Exhibit C: Deposition of Claimant 2005 and Exhibit D: Deposition of Claimant 2014

Claimant objected to the admission of SIF's exhibits C and D on the basis that Supreme Court Rule 57.07 says that a deposition may be entered for any purpose, but that the rule does not do away with the need to lay a foundation for impeachment, so there is a lack of foundation. Employee further objects on the basis Employee was not given an opportunity to expand or clarify her answers. The SIF's response was that Rule 57.07 states a deposition may be used for any purpose and that Employee was under oath and her attorney was present at both depositions. The SIF further argues that the depositions provide a timeline of Employee's medical history and complaints at various stages of her pursuit of benefits against the SIF. I find that the SIF cured any objection to lack of foundation for impeachment purposes when it asked Employee about

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Employee: Cathy Hinklin

Injury No. 11-111607

portions of her deposition on cross-examination. I further find that the remaining portions of the deposition are relevant and admissible under Rule 57.07. Employee's objection is overruled and Exhibits C and D are admitted into evidence.

All other objections not previously ruled upon are hereby overruled.

Cathy Hinklin, (hereafter "Employee") was born on May 4, 1959, making her 60 years old at the time of hearing. She is married to John Hinklin. Employee graduated from high school in 1977. Employee is a poor historian and struggles with dates. From approximately 1978-1979 she was employed as a trainee at Morgan Music. From approximately 1979 to 1985 she was unemployed because she stayed home to care for her children. Thereafter, she worked at Pizza Hut as a waitress and then as an assistant manager until 1987. From 1987-1989, she worked for Dollar General as a manager.

While working for Dollar General in April of 1989, Employee was assaulted by a robber and sustained multiple injuries including bruises and neck and shoulder strains. She received conservative treatment. Following the attack, she reported symptoms of depression, anxiety, panic attacks, crying spells, difficulty being alone, difficulty with concentration, and insomnia. She was diagnosed with post-traumatic stress disorder, major depression and dysthymia. She received psychiatric care including medications, counseling, psychotherapy, and relaxation treatment for management of pain. For several months, she locked herself in her home and was afraid. On April 21, 1992, Dr. Brown-Barnum opined that she suffered "from a 90% psychiatric disability which will preclude her from obtaining and/or maintaining any gainful employment over the next twelve to eighteen months or more." Employee did not return to work for approximately six years.

On September 22, 1993, Employee entered into a settlement agreement with Dollar General based on an approximate disability of 50% of the body as a whole referable to the neck, head, face, shoulders, left hand, arm and fingers. Per the advice of her psychologist, she enrolled at Three Rivers Community College and obtained an associate's degree in business management. She testified that she did struggle with anxiety in school and continues to struggle with anxiety to this day. She testified that she quit carrying a purse following the attack. She tries to always have someone with her. She testified that she experiences triggers (i.e. words, smells) that cause anxiety and sometimes the triggers are unknown. She testified she has learned skills to help her re-focus and bring her anxiety under control. She testified that because of the assault she has cognitive problems including problems with memory, concentration with reading, and reading comprehension.

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**Injury No. 11-111607**

After the assault, she remained off work until approximately 1996. Then, she returned to work as an assistant manager at Show Me Rental. In approximately 1997, she went to work at Banker's Life, initially as a sales agent and later in middle management.

On March 11, 1998, Employee was in a motor vehicle accident and injured her low back. She ultimately underwent a right sided posterior lumbar discectomy with fusion at L5-S1. Employee testified at her deposition in 2005 that she could not return to work at Banker's Life because the job required her to travel and she had difficulty getting in and out of the car all day, had difficulty going up and down stairs, and had problems with prolonged sitting. She testified that she was experiencing pain, numbness in her right foot and leg and felt she could only perform that job about four to six hours a day. She could only sit and stand approximately 15 minutes at a time. Eventually her ability to sit/stand for extended periods of time improved.

In approximately 1999, she left Banker's Life and went to work for American General Insurance as a sales person.

On January 12, 2001, while in the course of employment for American General, she was in a motor vehicle accident and sustained injury to her low back and hip. She was diagnosed with right radicular pain syndrome, SI joint dysfunction and mechanical low back pain. She treated with pain management, epidural steroid injections, SI joint injections and physical therapy. She was released at maximum medical improvement by Dr. Bernard Burns on August 21, 2003 with a rating of 24% of the body as a whole. Her physical therapy discharge note reflected that she continued to rate her pain at 3-4/10 and continued to complain of constant "burning & stinging" in her right iliac joint and posterior leg with numbness in her right 4th and 5th toes. It was reported she was not able to sit/walk for longer than 35-40 minutes. She underwent a functional capacity evaluation that reflected she could perform sedentary duty.

On October 22, 2003 she was evaluated by Dr. Gary Eaton at the request of her attorney for purposes of a rating examination. He outlined restrictions including that her driving time should not exceed twenty minutes, that she have a sit-stand option for all activities, that she have padded arm supports and wrist rests for keyboard operations, avoid operating heavy machinery while on pain medications, no pushing/pulling greater than 10 pounds for not more than six feet, padding standing/seat surfaces are needed, and continuous activity should not exceed three hours in a given time period or seven hours in any 24 hour period. He noted that she had been out of work in excess of one year and the statistical likelihood she would return to work was approaching zero percent. He concluded that she was permanently and totally disabled. She settled her claim for workers' compensation against American General for 35% of the body as a whole. She also had a claim against the Second Injury Fund that settled for $55,000.00 on October 25, 2006. On the stipulation for compromise settlement it was noted that there were alleged preexisting disabilities to Employee's BAW (neck, low back, psychological, headaches, GERD, abdomen, and heart) that "would result in PTD and the inability to compete in the open-labor market when combined with the primary injury."

Employee testified that she was out of work for a period of time following the 2001 injury, but she could not recall how long. Employee did eventually return to work. In

**Injury No. 11-111607**

approximately 2005, she, her mother and sister purchased a piece of property close to her home and opened a consignment store called Treasures. There is a discrepancy as to when this store was actually purchased. At her deposition on April 4, 2005, she testified that she had not worked or sought any employment since 2001. At her deposition in 2014 she testified that she was out of work until at least 2005, then she purchased the consignment store. At hearing, she initially testified she bought the consignment store in 2005, but later testified she thought it closed in 2005. On cross-examination she testified she thought the store opened in 2002 or 2003, but she was not sure. She thought that she had discussed Treasures at her 2005 deposition. When Susan Shea, a vocational expert, interviewed Employee in September of 2004, there was no mention of the store. At Ms. Shea's second interview of Employee on August 11, 2015, she recorded Employee opened the store in 2005 and had it for five years before it burned. According to Dr. Volarich, Employee reported that she opened Treasure's in 2001. When the Second Injury Fund asked her about this on cross-examination, she testified it was possible, but that she is not good with dates and details.

Employee testified that Treasures was open three days a week and consisted of booths that consignors stocked themselves. It also consisted of a bridal dress store and horse tack store. At her deposition in 2014, she testified that she bought the business because she could set her own hours and days and if she didn't feel well, she could sit, rest and control her day. She further testified that she ordered, stocked, priced and ran the register. At hearing, she testified she mostly sat and ran the register. She testified there was a cot in the back where she could lay down. She testified that during the three days she worked she would sometimes lay down up to two to three hours. During the other four days of the week, she did not have any other job. She testified that she, her mother, and sister ran the store together. They did not have any other employees. She could not recall when the store closed, but it was about the time her mother died in 2007.

Employee testified that in 2005 she felt that 4-5 hours per day was the maximum she could do anything because she had problems bending, lifting, and stooping back then.

Sometime after the store closed she got a part-time job as a receptionist at a "tax office." She checked in clients and entered basic information in a computer. She worked 4-5 hours per week. She worked from 9 a.m. to 4 p.m., five days a week during tax season. She was also self-employed as an insurance salesperson during this time period.

Sometime between 2008 and 2011 she began working as a manager for Stone Crest Motel. The motel had 35 rooms. This job required her to work 24/7 for one week, then she had the following week off work. During her work week, she was required to stay in an apartment attached to the office at the motel. Her husband stayed on site with her. She testified that she did paperwork in the mornings, checked people in, and managed the cleaning staff of two persons. As manager, she was required to clean five rooms a day, but she always had help. This required her to flip mattresses with assistance. She usually had the staff move the mini refrigerators because she was not physically able to do that. She did some laundry, but had help from her staff. She took care of any problems that arose. She maintained the pool. She testified that the glory of the job was that she could perform the work at her own pace and rest as needed. She

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**Injury No. 11-111607**

testified that she was able to manage her back pain with medicine and because she could set her pace during the day.

On her week off, she slept for three days, then would do her laundry, grocery shopping, and prepare to go back to work. She had to rest for three days because of pain.

She testified that in 2008 she injured her right ankle. She sustained a non-displaced tibia fracture that was treated conservatively. Her ankle still swells, and it sometimes hampers her walking. She testified she is no longer able to wear heels.

On November 17, 2011, Employee injured her low back at work for Stone Crest Motel. A staff member had left a mini-refrigerator on the walkway to defrost. She saw it that evening and attempted move it back to the room, but when she lifted it over the threshold, she felt a pop in her shoulder. She developed progressive neck and right arm pain and weakness. She also complained of increased migraine headaches. After conservative treatment, including pain management, failed, she was referred to a neurosurgeon, Dr. Ray, who diagnosed degenerative disc disease at C5-6. On May 21, 2013, she underwent a neuropsychological evaluation by Dr. Stephen Jordan for expressive language and memory problems. She reported a 1-2 year history of word finding difficulties and word substitution. She also reported memory problems and difficulty with concentration. His impression was major depression and generalized anxiety versus chronic post-traumatic stress disorder. He recommended she take Cymbalta. Ultimately, she underwent a C5-6 anterior cervical microdiskectomy with fusion on July 30, 2013 by Dr. Joel Ray. Post operatively, her neck pain and upper extremity symptoms improved, but her headaches increased. Dr. Ray referred her back to pain management and she underwent a right occipital block and trigger point injections. Dr. Ray referred her to a neurologist for evaluation of her persistent headaches. There is no record that Employee saw a neurologist. She last treated with Dr. Gayle for headaches on June 26, 2014 at which time he administered a Toradol injection. Employee did attempt to return to work for a short period of time after surgery, but found she could not perform her job duties. Employee was terminated by Employer in January of 2014.

Employee was evaluated by Dr. David Volarich on June 18, 2015 at the request of her attorney. Dr. Volarich based his opinions on his review of the records, interview with Employee, and physical examination. He recorded that Employee reported present complaints regarding the injury of November 17, 2011 that included ongoing pain, stiffness and limited motion of her neck, increased pain with standing/walking more than 15 minutes, and that lifting was limited to about ten pounds. She reported radiating pain from her neck down her right arm and that her right hand is weak. She reported that she avoids using her right hand and compensates with her left hand. She reported migraine headaches up to four times a week compared to only about twice per month before the accident. She reported that reaching behind her back and overhead was limited due to pain. She reported her husband has to help wash her hair and to take off pullovers and heavy coats. She reported holding her head to look down to

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**Injury No. 11-111607**

Read causes a headache. She reported she only sleeps about 4-5 hours a night. She reported that since she was not working she spent most of the day moving every 10-15 minutes from the couch to the recliner to avoid remaining in a fixed position for very long.

Regarding her preexisting medical conditions, she reported migraine headaches prior to November 17, 2011, about twice per month that occasionally required her to miss work. She reported some ongoing neck pain and limited range of motion of her neck. She reported her cervical symptoms flared about once a month for a few days. She reported ongoing low back pain and stiffness with some numbness in her right hip and leg that extended to her 4th and 5th toes. She reported her symptoms were aggravated by sitting, walking, bending, stooping and twisting. She indicated her lifting was limited to 15 pounds before symptoms increased and she avoided heavy lifting when possible. She also reported some ongoing stiffness and soreness in her right ankle.

Her physical exam demonstrated weakness in her right upper extremity and limited range of motion in both her cervical and lumbar spine.

Dr. Volarich determined that Employee had reached maximum medical improvement (hereafter "MMI"), although he did not specify the date she reached MMI. He opined that Employee sustained 35% permanent partial disability of the body as a whole rated at the cervical spine and 7.5% permanent partial disability of the body as a whole rated at the head due to increased migraine headaches as a direct result of the November 17, 2011 accident. Dr. Volarich opined that Employee had preexisting disabilities of 7.5% permanent partial disability of the body as a whole at the cervical spine due to chronic cervical syndrome, 7.5% of the body as a whole rated at the head due to chronic migraine headaches that required medication prior to November 17, 2011, 35% of the body as a whole at the lumbar spine due to lumbar right leg radiculopathy that required laminectomy, discectomy, foraminotomy and medical fasciectomy with fusion at L5-S1, and 15% of the right lower extremity rated at the tibia due to the non-displaced tibia fracture that required non-operative care. He further opined that Employee is permanently and totally disabled as a result of the work injury of November 17, 2011 in combination with her preexisting medical conditions. Dr. Volarich deferred to psychiatry for an assessment of Employee's psychiatric disorders.

Regarding the November 17, 2011 injury, Dr. Volarich recommended that Employee avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to an as needed basis, that she should not handle weights greater than 15-20 pounds and limit this to an occasional basis, that she not handle weight overhead or away from her body, that she not carry weight over long distances or uneven terrain, that she avoid remaining in a fixed position more than 30 minutes at a time (including sitting and standing), and that she change positions frequently and rest when needed.

Regarding her spine prior to November 17, 2011, Dr. Volarich reported he would have advised her to limit repetitive bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to an as needed basis, to not handle weights greater than 25 pounds and on occasional basis, to not handle weight overhead or away from her body or to carry weight over

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**Injury No. 11-111607**

long distances or uneven terrain, to avoid remaining in a fixed position for any more than one to two hours at a time (including sitting and standing), and to change positions frequently to maximize comfort and rest when needed.

Dr. Volarich testified that:

> The current injury to the neck involves damage to the C5-6 level, more to the right side of her body. That means her grip strength in the right hand, ability with dexterity in the right hand, particularly with the thumb and index finger to do different tasks, and she is a right hand dominant woman, are impaired now. She cannot do things as well as she did in the past.

> We add to that the preexisting lumbar condition involving two different nerve roots to the lower extremities, again operated on the low back. She has difficulties with range of motion, with lifting.

> As I described in my IME on Page 8—or 6 at the bottom of the page, I talked about how she had trouble with stooping, walking, bending, twisting, carrying, had to use a back brace occasionally, lifting she tried to limit to 15 pounds before symptoms increased.

> She hurt herself because she was lifting 50 pounds. She could perform most activities to take care of herself but had problems at work and slowed down somewhat.

> We also have the right ankle problem that limited the ability to lift properly because of some lost motion and ability to perform proper lifting technique.

> I think that the combination of the neurologic damage to the upper and lower extremities from the disc herniations, the mechanical losses in the neck and low back from the fusions, all cause her to have significant difficulty and more disability than otherwise.

Employee was evaluated by Susan Shea, a certified rehabilitation counselor, on two different occasions at the request of Employee's attorney. Ms. Shea also testified by deposition on May 7, 2018. Ms. Shea first evaluated Employee in September of 2004. She opined that Employee was not a vocational rehabilitation candidate and was not capable of acquiring and/or sustaining substantial gainful employment. In formulating that opinion she relied upon

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**Injury No. 11-111607**

Employee's description of pain and daily function at that time, that her history of PTSD would make it difficult for her to work with the public, that her functional capacity evaluation was very limiting, that the restrictions offered by Dr. Eaton were inconsistent with work, that Dr. Burns stated she was not capable of full time work, that Dr. Arthur Smith had opined it was unreasonable for an employer with access to her medical history to hire her, that Employee was taking narcotic medications that could impact her mental faculties, that she had severe depression, and that she had fatigue and inability to concentrate well.

Ms. Shea evaluated Employee a second time on August 1, 2015. She noted that since the time of her first evaluation, Ms. Hinklin had recovered from some of the disabling conditions to some degree and had worked beyond the restrictions previously given to her. Ms. Shea testified that Employee had opened a store named Treasures and was able to work her own hours and sit and stand as needed. She also testified that Employee's job at Stone Crest Motel allowed her liberties in what, when and how she performed job duties. She testified that the seasonal tax work Employee performed on a part-time basis also allowed her the freedom to sit, stand and take breaks as needed. She testified that none of these jobs represented work typically performed in the national labor market. She testified that following her second evaluation of Employee in 2015, she concluded Employee is not employable in the national labor market. After reviewing the medical records, interviewing Employee and performing a vocational evaluation, Ms. Shea opined that Employee is not employable in the open labor market due to a combination of her preexisting conditions and the result of the injury of November 17, 2011. Her opinion was based on Dr. Volarich's restrictions and opinion that she is unable to work, Employee's report of severe pain two to three times per week, her need to change positions every 30 minutes, the fact that she was determined to be permanently and totally disabled by the Social Security Administration, that she had limitations prior to November 17, 2011 that restricted her to sedentary work and working beyond those limitations resulted in increased injury, pain and dysfunction, that her extensive history of injuries is a deterrent to any potential employer, her severe psychiatric disorder, her age (56 at the time of evaluation), her use of medications¹, and her inability to use the right upper extremity for more than a short period of time.

On cross-examination, Ms. Shea testified that she did not include hobbies or extracurricular activities of Employee in her report. She testified that she does not consider it applicable or helpful unless the hobby involved specific training. Otherwise, it would not help someone be employable.

Employee settled her claim against Employer-Insurer for a lump sum payment of $60,000.00 based on approximately 33% of the body as a whole referable to the cervical spine and an additional sum for disputed lost time benefits.

¹ At hearing, Employee testified that she no longer takes prescription medications and instead relies upon natural oils and remedies. She has a history of addiction and chooses to no longer take prescription pain medications.

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Employee has good days and bad days. She continues to have problems with her right hand including loss of strength. She sometimes drops things. Sometimes she can use her right hand, and other times she cannot. Instead of holding heavy items with her right hand, she will hold them with her wrist or forearm. She uses her left arm as much as possible. Her migraines worsened after her cervical injury, but have since improved. She continues to have them two to three times a month, but no longer takes Imitrex. Florescent lights and anxiety trigger her migraines. Her depression worsened following the 2011 accident. It takes her a while to get going when she gets up. She cannot keep house like she used to. After her neck surgery she lost the ability to perform more activities because she could no longer work, had to lay down more, and became more sedentary. She has stiffness in her neck and limited range of motion.

She continues to deal with depression, migraines, and back pain. She described her concentration level as terrible and she cannot remember things. She continues to experience anxiety, but has learned how to re-focus. Sometimes she cannot function or think. Employee testified after approximately about 45 minutes of testimony that she was feeling anxiety coming on and needed to take a break to re-group.

Employee relocated her pots and pans on top the stove after the 2001 accident so that she does not have to reach down low. She has trouble walking because of her low back and takes "wormwood" for pain. Her low back pain is more symptomatic with bending, stooping, and lifting. Employee testified that she took several different pain medications for back pain over the years, but weaned herself off because she has a history of addiction in her youth and did not like the way the medications made her feel. She switched to over-the-counter medications such as Ibuprofen for a while, but was told this year by a doctor that the medications were deteriorating her stomach lining, therefore she can no longer take NSAIDS. She now uses oils and other natural remedies to treat pain.

She can drive, but stops every 45 minutes to an hour to get out, walk around, and stretch for 5-10 minutes. She can travel up to 4-5 hours in a day with an extra hour for stretching.

She testified on direct examination that she goes to church on Sundays and attends Celebrate Recovery, a 12 step program for people for hurts, habits and hang-ups, on Friday evenings. During the week her activity depends on the day. She does very little shopping because of stress and trouble lifting. She usually goes with her husband.

On cross-examination by the Second Injury Fund, Employee admitted that not only does she attend church on Sundays, but she serves as a lay minister and usually ministers at Sunday service twice a month from 9:00 a.m. to 10:00 a.m. She alternates serving as minister with two other people. When she preaches, she speaks for about 15 minutes and has the option to sit or move around. She testified that she stands at church for 45 minutes to an hour on Sundays in excess of Dr. Volarich's restriction, but otherwise tries to abide by his restrictions. She admitted to officiating two to three funerals per year and she has helped out with baptisms. She is not a licensed or ordained minister. She began preaching about three years ago, but has only preached

Employee: Cathy Hinklin

Injury No. 11-111607

consistently for the past year. She also admitted that she not only attends Celebrate Recovery at her church but serves as a small group facilitator. The meeting lasts from 6:30-8:30 or 9:00 p.m. and consists of attendance at a service followed by the small group meeting. She also serves as a state representative for Celebrate Recovery which requires her to sometimes visit other churches in the area. The furthest she usually travels for Celebrate Recovery is to Portageville (about two hours away). She posts the events on Facebook. She has been involved with Celebrate Recovery for approximately four years.

Employee is also the Board President of a women's shelter that she helped start approximately four years ago. The shelter is a transition home for women age 18 and older. As director, she attends a board meeting once per month. She also serves on a fundraising committee. She uses social media to promote fundraising, but other committee members prepare flyers and collect the money. There are six other women that help run the shelter. She testified that she does not do very much for special events. She admitted to putting on a skit at a mother/daughter tea once. She does attend and speak at events (i.e. county fairs) on behalf of the women's shelter.

On cross-examination by the Second Injury Fund Employee testified to the following:

- Traveling to St. Louis in July of 2018 to visit the Arch and pick up the director of an organization at the airport.

- Speaking at a church conference in Cape Girardeau in September of 2018.

- Traveling to West Plains in March of 2019 for Celebrate Recovery (two hours from her house.)

- Attending an event at the Fredericktown Eagles club for the women's shelter in April of 2019 (30 minutes from her house.)

- Traveling to Central Methodist College in Fayette, Missouri on May 22, 2019 to learn about getting a minister's license.

- Traveling to Portageville for a Celebrate Recovery event in May of 2019.

- Going the St. Louis zoo on June 19, 2019 with the women's shelter.

- Attending the UMC church conference in Columbia, Missouri in June of 2019. She attended meetings during the conference.

- Going to the movie theatre to see Aladdin the day before leaving for the above-mentioned church conference.

- Attending an event for the women's shelter on July 4, 2019 as well as another event in Greenville (which is 15 minutes from her home) for Celebrate Recovery.

- Traveling to Florida (an approximately 12-14 hour trip) for her grandmother's funeral in July of 2019. The drive was split up between six drivers and she drove part of the way.

- Attending a Celebrate Recovery event in Tennessee from July 9 through 12, 2019. She took turns driving with a friend. She attended church services at the event.

- Attending Eagle Sky retreat for Celebrate Recovery in August of 2019 (5 miles from her house).

- Attending a church event in St. Louis on September 10, 2019 (the evening before the hearing). She testified that she stood/sat in the back and was miserable at times. Exhibit F-2 represents a picture of her sitting at the event with a friend in the back row. She acknowledged she was smiling, but testified that she smiles whether or not she is hurting.

Page 14

**Injury No. 11-111607**

She admitted to driving back the same night and she arrived home around midnight. She got up at 7:00 a.m. the following morning for the hearing. She made two stops during the two hour drive.

This Court observed Employee to have a flat affect throughout the hearing. She repeatedly stated and it was observed that her memory is poor and that she struggles with dates.

Shauna Mitchell is a private investigator that performed surveillance of Employee at the request of the Second Injury Fund on June 24, 2018. Ms. Mitchell took video of Employee arriving at her church at approximately 8:30 a.m. and entering via a staircase. She observed a sign outside that identified Kathy Hinklin as a pastor. Ms. Mitchell entered the church and observed Employee preach from approximately 9:00 a.m. to approximately 9:56 a.m. At approximately 9:14 a.m. Employee is observed stepping to the front of the pulpit and sitting down on the stairs with a child. Approximately two minutes later she uses her left hand to push up from the seated position and return to the pulpit. Employee is observed standing for approximately 40 minutes. Employee was observed to be behind a podium for the majority of the service. The video reflects that Employee shifted her weight back and forth while standing during the service. Employee testified that when she preaches there is a chair behind the podium and she sometimes sits in it or props her foot on the chair while she leans on the pulpit. While the church service lasts 50-55 minutes Employee's sermon is approximately 15 minutes of that time. The remainder of the time she is officiating the service.

After the church service, Employee is observed carrying a white trash bag from the trunk of another lady's vehicle to the trunk of her vehicle with her left hand. She is then seen carrying a cardboard box that appears to be light weight from the same lady's trunk to her own trunk. Lastly, she is seen carrying a black trash bag with her left hand from the lady's trunk to her own trunk. She is then seen driving to a gas station and putting gas in her vehicle.

Robert Cirtin is a private investigator that conducted surveillance of Employee at the request of the Second Injury Fund on September 29, 2018 at the southeast district office of the United Methodist church in Cape Girardeau. He observed and took video of Employee arriving at the conference at 12:24 p.m. with two other women. The conference was scheduled to start at 8:30 a.m. that morning and Employee was scheduled to speak on behalf of the women's shelter (the mission project for the conference) at 1:15 p.m. Employee was driving. Employee exited the vehicle and was observed to place an envelope and her purse on the trunk of the vehicle. Employee then entered the building with the women. Mr. Cirtin observed Employee and the women leave the building around 3:00 p.m. He observed and recorded Employee and another woman each carrying the end of a large plastic container and placing it in the trunk. He could not identify what was in the plastic container. Employee testified that the items in the container included maxi pads, tampons and zip lock bags that weighed maybe five pounds and were collected for the women's shelter. He observed Employee get into the drivers' seat of the vehicle and drive to a thrift store. He used an iPhone to capture video of Employee shopping in the thrift store. He then observed Employee drive to SAM's club and enter the building. He obtained

Page 15

Section 287.020.6 RSMo provides as follows:

The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 363, 367 (Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483 (Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831,834 (Mo.App.1993).

Section 287.220.2 RSMo requires that, in order to have Second Injury Fund liability, a claimant must have "a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or obtaining reemployment if the employee becomes unemployed..."

The test for finding the Second Injury Fund liable for permanent total disability under Section 287.220.2 RSMo, is as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for

Employee: Cathy Hinklin

Injury No. 11-111607

which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 287.200 out of the Second Injury Fund.

Under Section 287.220.2 RSMo, the Second Injury Fund has no liability and the employer is responsible for full, permanent total disability benefits if the last injury "considered alone and of itself" results in permanent total disability. *Roller v Treasurer of the State of Missouri*, 935 S.W.2d 739 (Mo.App.1996) and *Maas v Treasurer of the State of Missouri*, 964 S.W.2d 541 (Mo.App.1998).

To determine whether a pre-existing condition rises to the level of being a hindrance or obstacle to employment or re-employment, the "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" *Kinsley v. Charleswood Corporation*, 211 S.W.3d 629, 637 (Mo.App. E.D. 2007).

**RULINGS OF LAW:**

**Issue 1: Liability of the Second Injury Fund for permanent partial versus permanent total disability.**

The first step in the analysis is to determine whether Employee is able to compete in the open labor market, and is permanently and totally disabled. If she is permanently and totally disabled, the Second Injury Fund is only liable if the total disability is a result of a combination of her preexisting low back, cervical, right leg injuries, PTSD and chronic migraines and the primary injury to her cervical spine and head. If the last injury alone was sufficient to cause Employee's total disability, then the Second Injury Fund is not liable for permanent total disability.

**Permanent Total Disability**

On the issue of whether Employee is permanently and totally disabled, I find the medical records, medical report and testimony of Dr. Volarich and vocational report of Susan Shea support a conclusion that the employee is permanently and totally disabled. The Second Injury Fund did not offer any medical or vocational opinions to the contrary. I find the opinions of Dr. Volarich and Susan Shea to be credible and persuasive.

I further find Employee was a credible witness and her testimony regarding her present symptoms and physical limitations supports a finding that she is permanently and totally

Page 17

**Injury No. 11-111607**

disabled. Regarding the surveillance video, I find that the activities shown on the surveillance footage do not translate to Employee's ability to perform sustained employment. I find that the activities shown on the surveillance video do not materially exceed the physical restrictions as outlined by Dr. Volarich. I further find that her testimony regarding her symptoms and limitations is not materially contradicted or refuted by the video footage. The footage shows two separate isolated periods in time (one showing approximately one hour of activity and the other showing approximately 15 minutes of accumulated activity) that are not indicative of Employee's ability to perform work on a full-time basis.

Regarding Employee's volunteer activities, Employee admitted that she serves as a lay minister, small group facilitator, and state representative for Celebrate Recovery and board director for a women's shelter on cross examination and appeared to answer questions about these activities truthfully. There is no evidence that she received or receives compensation for any of these activities. I find that these volunteer activities do not require Employee to exceed her physical restrictions as outlined by Dr. Volarich. These activities do not require her to bend, twist, lift, push, carry or climb. There is no evidence that these activities require her to lift more than 15-20 pounds or to handle weight overhead or away from her body. Although her participation in some of the activities identified require her to travel, she testified that she is able to stop and take breaks. Further, the testimony suggests she is not traveling out of town more than 0-2 times per month for volunteer activities and that after such a trip she rests for several days. Unlike employment, Employee has the freedom to decline to participate in her volunteer activities or to take a break and rest when needed.

I further find that her testimony regarding her symptoms and limitations is not materially contradicted or refuted by her participation in these volunteer activities. Clearly, Employee is not leading an indolent lifestyle. She has chosen to serve her community and her church to the best of her ability and that does not preclude her from being permanently and totally disabled. An injured employee is not required to be completely inactive or inert in order to be totally disabled. *Brown v Treasurer of the State of Missouri*, 795 S.W.2d 479, 483 (Mo.App.1990). I find that although Employee is able to serve in volunteer positions, this does not equate to the ability to perform the usual duties of employment in the manner that such duties are customarily performed by the average person engaged in such employment.

I find that based on Employee's age, work history, and her current physical condition and limitations, the employee is no longer able to compete in the open labor market, and is permanently and totally disabled. I find that no employer in the usual course of business would be reasonably expected to hire Employee in her current physical condition, reasonably expecting her to perform the work for which he or she is hired.

The evidence does not support a finding that the last injury alone caused Employee to be permanently and totally disabled. Both Dr. Volarich and Susan Shea concluded that Employee's total disability was the result of a combination of the November 17, 2011 injury and her

**Injury No. 11-111607**

preexisting disabilities.² There is no medical or vocational evidence to support a finding that the employee's November 17, 2011 accident alone caused the employee to be permanently and totally disabled. I therefore find that the last injury to the employee's cervical spine (including migraine headaches) on November 17, 2011 "considered alone and of itself", did not cause the employee to be permanently and totally disabled. I find Employee sustained 33% permanent partial disability of the body as a whole referable to the cervical spine (including migraine headaches) as a result of the November 17, 2011 accident.

I find that Employee's post-traumatic stress disorder and resulting psychological difficulties were a hindrance or obstacle to her employment or re-employment. While Employee has made great strides in developing coping mechanisms to manage her post traumatic stress disorder, I find that it continues to be a hindrance or obstacle to employment. Although Dr. Volarich did not evaluate her preexisting post-traumatic stress disorder and deferred assessment to psychiatry, the treatment records and the fact that Employee was unable to be gainfully employed for six years following the 1989 assault injury are persuasive evidence that Employee's post-traumatic stress disorder was a hindrance or obstacle to her employment or re-employment leading up to November 17, 2011.

I find that Employee's preexisting cervical pain, migraine headaches, and right ankle fracture were a hindrance or obstacle to employment or re-employment albeit to a lesser degree. I find credible Dr. Volarich's opinions and the testimony of Employee in this regard.

I find that the medical records, the testimony of Employee, the opinions of Dr. Eaton and the testimony of Dr. Volarich support a finding that Employee's preexisting chronic lumbar syndrome and right leg radiculopathy were a hindrance or obstacle to her employment or re-employment. I further find that there was evidence to support a finding that Employee was permanently and totally disabled following her January 12, 2001 lumbar spine injury. I find that Employee was unable to compete for employment in the open labor market as a result of her January 12, 2001 back injury in combination with her preexisting disabilities at that time until at least 2005. Based on the totality of the testimony and my review of the records, I find that sometime in 2005 or thereafter Employee purchased a building with her mother and sister and opened a consignment store in an attempt to return to work in some capacity.³ I find that this self-employment did not constitute work as it is normally performed in the open labor market. She worked three days a week, set her own hours, and had the ability to rest as needed. There is no evidence that she earned an income or was able to financially support herself with this endeavor.

I find that there was a substantial change in her condition between the time she settled her claim against the Second Injury Fund on October 25, 2006 and the time she began performing

² It is noted that Dr. Volarich did not evaluate Employee's preexisting psychological problems and did not include Employee's preexisting psychological disability in his opinion that she is permanently and totally disabled.

³ There is no definitive evidence on the record (such as a copy of the purchase contract, a property deed, filings with the Missouri Secretary of State, tax records, or copies of Social Security Administration quarterly reports) as to when Employee purchased or began operating the consignment store. Employee is consistently a bad historian with dates and repeatedly acknowledged the same. Without additional evidence, I am not inclined to conclude that Employee misrepresented her work status at her April 4, 2005 deposition as suggested by the Second Injury Fund.

Page 19

Employee: Cathy Hinklin

Injury No. 11-111607

part-time work as a receptionist at a "tax office." I find that she was able to return to work in the open labor market with physical limitations. I find that her job at Stone Crest Motel was unusual in that it allowed her the ability to self-regulate her work activities and rest when needed. I further note that after a seven day work week she had the ability to rest for a week before returning back to work. I find that Employee's job at Stone Crest Motel was physically demanding in that it required her to exceed the restrictions outlined by Dr. Gary Eaton in his October 22, 2003 report. I also find that Employee's functional capacity evaluation as performed in 2003 indicated she was capable of performing sedentary work only and the job requirements at Stone Crest Motel were in excess of sedentary duty.

It was performing one of those job duties that exceeded Dr. Eaton's restrictions (lifting a 50 pound refrigerator) that caused Employee to injure her cervical spine. I find Dr. Volarich's testimony credible that following the November 17, 2011 injury to her cervical spine, Employee sustained damage to the C5-6 level of her spine that resulted in loss of grip strength in her dominant right hand and impacted her dexterity. I find credible and persuasive Dr. Volarich's testimony that the combination of her neurologic damage to both her upper and lower extremities from both her cervical and lumbar disc herniations and the resultant mechanical losses in her neck and low back from fusion procedures create an overall greater disability. I also find credible his testimony that her right ankle fracture negatively impacts her ability to perform a proper lifting technique which is problematic given the loss of integrity to her spine.

I find that after considering Employee's age (now 60), work history, the credible medical opinions of Dr. Volarich, Employee's credible testimony regarding her functional limitations and symptoms, and the credible vocational opinions of Susan Shea, that Employee is no longer able to compete in the open labor market, and is permanently and totally disabled due to the combination of the November 17, 2011 injury to Employee's cervical spine with the pre-existing injuries to her lumbar spine, cervical spine, head (migraine headaches), and right ankle. I find that Employee has additional preexisting psychological disability (PTSD, depression, and anxiety) that further contributes to her overall disability and inability to work. I further find that no employer in the usual course of business would reasonably be expected to employ Employee in her present physical condition and reasonably expect Employee to perform the work for which she was hired.

I find that the Second Injury Fund is liable for permanent total disability benefits, therefore the issue of whether the Second Injury is liable for permanent partial disability benefits is moot and shall not be ruled upon.

Issue 2: The date Employee reached maximum medical improvement.

Courts have used various terms to determine when an employee's condition has reached the point whether further progress is not expected, including the term maximum medical improvement. Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining

Page 20

Employee: Cathy Hinklin

Injury No. 11-111607

when a disability becomes permanent and thus, when payment for permanent partial or permanent total disability should be calculated. *Cardwell v. Treasurer of Missouri*, 249 S.W.3d 902, 910 (Mo. App. 2008).

I find that none of the treating doctors addressed the date Employee reached MMI. The only doctor to address Employee's MMI status was Dr. Volarich. He concluded that she was at MMI in his report dated June 18, 2015. Therefore, I find that Employee reached MMI for her November 17, 2011 injuries on June 18, 2015.

Employee is permanently and totally disabled due to the combination of the November 17, 2011 injury to her cervical spine with the pre-existing injuries to her lumbar spine, cervical spine, head (migraine headaches), and right ankle. Employee has additional preexisting psychological disability (PTSD, anxiety, and depression) that further contributes to her overall disability and inability to work. Employee reached MMI on June 18, 2015. The employer-insurer's liability for the 33 percent permanent partial disability to the employee's cervical spine (including migraine headaches) attributable to the November 17, 2011 accident equals 132 weeks of compensation. The permanent partial disability benefits, if paid by the week, would therefore have commenced on June 19, 2015, and would have continued for 132 weeks through December 28, 2017. Those permanent partial disability benefits would have been payable at the rate of $425.19 per week.

Employee's rate of compensation for permanent total disability is 496.55, which is 71.36 higher than the permanent partial disability rate. The Second Injury Fund is therefore responsible for paying the difference between the permanent total disability rate and the permanent partial disability rate starting on June 19, 2015, and ending on December 28, 2017 (last day attributable to the 132 weeks of permanent partial disability benefits); and thereafter, commencing on December 29, 2017, the Second Injury Fund is responsible for paying the full permanent total disability benefits at the rate of $496.55 per week.

The Second Injury Fund is therefore directed to pay to Employee the sum of $71.36 per week commencing on June 19, 2015, and ending on December 28, 2017. Thereafter, commencing on December 29, 2017, the Second Injury Fund is directed to pay to the employee the sum of $496.55 per week for permanent total disability; and said weekly payments shall be payable for the lifetime of the employee pursuant to Section 287.200.1 RSMo, unless such payments are suspended during a time when the employee is restored to her regular job or its equivalent as provided in Section 287.200.3 RSMo.

Page 21

Joseph P. Rice, III, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

I certify that on **12-10-19**, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **Amy L. Young**

Administrative Law Judge

Division of Workers' Compensation