Telma Merida v. AJM Packing Corporation

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-095197**

**Employee:** Telma Merida

**Employer:** AJM Packing Corporation

**Insurer:** Praetorian Insurance

**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 October 29, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen Fisher, issued October 29, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this _______9th_____ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 751-4231 FAX: (573) 751-2012

www.labor.mo.gov/DWC

OCTOBER 29, 2019

13-095197

Scan Copy

*Employee : TELMA MERIDA 08776998 0 311 S ORNAR ST CARTNAGE, MO 64836* Employer : AJM PACKAGING 08776999 7 3503 ENTERPRISE AVE WEBB CITY, MO 64870 *Asst Atty General: ATTY GENERAL ERIC SCHMITT 08776997 3 149 PARK CENTRAL SQ STE 1017 SPRINGFIELD, MO 65806

*Employee Attorney: JENNIFER L NEWMAN 415 A E CHESTNUT EXPY SPRINGFIELD, MO 65802* Insurer : PRAETORIAN INSURANCE 08777000 9 PO BOX 975 SUN PRAIRIE, WI 53590

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS *Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.*

Employee: Telma Merida

Injury No. 12-040405 \& 13-095197

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: AJM Packing Corporation

Insurer: Praetorian Insurance c/o Cottingham and Butler Claims Service

Addl Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: June 20, 2019

Checked by:

1. Are any benefits awarded herein? Yes (2012) No (2013)
2. Was the injury or occupational disease compensable under Chapter 287? Yes (2012) No (2013)
3. Was there an accident or incident of occupational disease under the Law? Yes (2012) No (2013)
4. Date of accident or onset of occupational disease: May 24, 2012 \& August 1, 2013
5. State location where accident occurred or occupational disease was contracted: Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes (2012) No (2013)
8. Did accident or occupational disease arise out of and in the course of the employment? Yes (2012) No (2013)
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred $\sigma$ occupational disease contracted: 2012 right hand was crushed and burned by hot glue while pulling packaging from a malfunctioning machine; 2013 left hand, occupational disease
12. Did accident or occupational disease cause death? Date of death? No.
13. Part(s) of body injured by accident or occupational disease: Right hand (2012) \& left hand (2013)
14. Nature and extent of any permanent disability: 35 % to the hand (2012) \& 0 % (2013)
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 14,536.27 (2012) $\ 0 (2013)

Employee: Telma Merida

Injury No. 12-040405 \& 13-095197

1. Value necessary medical aid not furnished by employer/insurer? $\ 0
2. Employee's average weekly wages: $\ 330.00 (2012) $\ 340.50 (2013)
3. Weekly compensation rate: $\ 220.00 (2012) $\ 227.00 (2013)
4. Method wages computation: statutory: wage statement.

1. Amount of compensation payable: $\ 14,355

Unpaid medical expenses: $\ 0

weeks of permanent partial disability from Employer 61.25

weeks of disfigurement from Employer 4

1. Second Injury Fund liability: No

TOTAL: $\ 14,355

1. Future requirements awarded: N/A

The compensation awarded to the claimant 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 claimant: Newman Law Firm

Employee: Telma Merida

Injury No. 12-040405 \& 13-095197

Dependents: N/A

Employer: AJM Packing Corporation

Insurer: Praetorian Insurance c/o Cottingham \& Butler Claim Service

Addl Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: June 20, 2019

Checked by:

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 20, 2019.

The employee appeared personally and through her attorney Jennifer L. Newman, Esq. The employer and insurer appeared through their attorney, Robin L. Bullock. The Second Injury Fund appeared through its attorneys, Cara Harris and Sheila Skulborstad, Assistant Attorneys General. Also present was Lisa Lewis, interpreter for the employee.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about May 24, 2012, and August 1, 2013, AJM Packing Corporation was an employer operating under and subject to the Missouri Workers' Compensation Law, and during this time was fully insured by Praetorian Insurance.

(2) On the alleged injury dates of May 24, 2012, and August 1, 2013, Telma Merida was an employee of the employer, and was working under and subject to the Missouri Workers' Compensation Law.

(3) On or about May 24, 2012, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced employment and accidents occurred in Jasper County, Missouri. The parties agree to venue lying in Jasper County, Missouri. Venue is proper.

(5) The employee notified the employer of her May 24, 2012, injury as required by Section, 287.420, RSMo.

(6) The Claims for Compensation were filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of May 24, 2012, the employee's average weekly wage was $\ 330.00, which is sufficient to allow a compensation rate of $\ 220.00 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 220.00 for permanent partial disability compensation.

For the alleged occupational disease of August 1, 2013, the employee's average weekly wage was $\ 340.50, which is sufficient to allow a compensation rate of $\ 227.00 for temporary total disability compensation/ permanent total disability compensation, and a compensation rate of $\ 227 for permanent partial disability compensation.

(8) The employee received no temporary total disability compensation under either the 2012 injury or the 2013 injury.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 14,536.27 in medical expenses under the 2012 injury number and $\ 0 under the 2013 injury number.

The issues to be resolved by hearing include as to 12-040405:

(1) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

(2) Whether the employee sustained any permanent partial occupational disease or permanent total disability as a consequence of the alleged accident of May 24,2012 . If so, what is the nature and extent of the disability.

(3) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation (or permanent total disability compensation).

The issues to be resolved by hearing include as to 13-095197:

(1) Whether the employee sustained an occupational disease on or about August 1, 2013; and, if so, whether the occupational disease arose out of and in the course of her employment with the employer.

(2) Whether the employee gave notice as required by Section 287.420 .

(3) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed in the August 1, 2013, injury.

(4) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

(5) Whether the employee sustained any permanent partial occupational disease or permanent total disability as a consequence of the alleged accident of August 1, 2013. If so, what is the nature and extent of the disability and any assessment of disfigurement.

The claimant testified at the hearing in support of her claim. The claimant also presented the testimony of three witnesses - Phillip Eldred, MS, CRC; Judith Gonzalez, Psy.D., PCBHC; and Claimant Telma Merida. The claimant offered the following exhibits, which were admitted into evidence:

Exhibit 1 Medical records of Telma Merida

Exhibit 2 Deposition of Dr. David Volarich (dated 5/25/18)

Exhibit 3 ................................................................................................................CV of Phil Eldred

Exhibit 4 ................................................................................................................... IME report of Phil Eldred (dated 9/12/16)

Exhibit 5 ................................................................................................................... CV of Dr. Judith Gonzalez

Exhibit 6 ................................................................................................................... Report of Dr. Judith Gonzalez

Exhibit 7 ..................Stipulation for Compromise Settlement-Injury No. 00-025800

Exhibit 9 ................................................................................................................ Photo of Ms. Merida's hand with glove

Exhibit 10 ................................................................................................................ Photo of bundle of bags

The employer and insurer presented no live witnesses at the hearing of this case. The employer and insurer offered the following exhibits, which were admitted into evidence:

Exhibit A ............................................ Deposition of Dr. Mark McNemar (dated 1/9/15)

Exhibit B.................................................. Deposition of Gary Weimholt (dated 11/8/18)

Exhibit C ............................................ Deposition of Dr. Body Crockett (dated 9/24/18)

Exhibit D .............................................. Deposition of Dr. Scott Swango (dated 10/11/18)

Exhibit E........................................................ Deposition of Telma Merida (dated 7/10/17)

Exhibit F................................................................................................................. Surveillance video flash drive

The Second Injury Fund did not present any witnesses nor offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation in each injury number, 12-040405 and 13-095197, which were made part of a single exhibit identified as the Legal Files I and II, respectively. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Request for Hearing-Final Award

- Answer of Employer/Insurer to Claim for Compensation

- Answer of Second Injury Fund to Claim for Compensation

- Claim for Compensation

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 testimony of vocational specialist Phil Eldred was admitted into evidence by live testimony at the hearing. He testified that he had evaluated the claimant on August 18, 2016, and that he had reviewed the records which were listed on page 1 of his report. However, he also had reviewed additional records, but had not submitted a subsequent report. Those records included the records of Dr. Swango and Dr. Volarich's subsequent addendum report of 2017, and the depositions of Dr. Crockett, Mr. Weimholt, Dr. McNemar, and Dr. Swango.

Mr. Eldred testified that when he saw the claimant she was 56 years of age and he understood that she filed claims for injuries in 2012 and 2013. He indicated that older workers in their fifties have more difficulty adapting to new work and she was considered an older worker. She was educated in Guatemala and apparently only completed her schooling through the fourth grade and was unable to read and write. Despite that, she had found work and her prior work was at a poultry packing plant doing packaging in 2004 to 2005, and she was on the deboning line from 19972001. Her last work was with the employer, AJM Packaging in Webb City, Missouri, which was for seven years, which was described as medium work. He testified that she had not been a part of the work force since 2014.

Mr. Eldred had examined her medical records and restrictions provided by the physicians and found that Dr. McNemar, who had treated the claimant, found that she could work light duty. Dr. Volarich, Claimant's IME physician, found Claimant able to perform at a less than sedentary work level. Claimant told him that she could not do anything with her right hand, as he stated in his report, and she reported severe impairment in the right upper extremity with pinching, grasping, manipulating small objects with her thumb to finger strength and any repetitive motion. She also reported she could not cut, open a bottle or twist a cap, she could not stand cold water on her hand, she had no strength in her right arm, her nerve shocks her when the right hand is under stress, her hand swells, and she had sharp pain near her little finger that runs toward her wrist.

As a result, Mr. Eldred testified that although she had transferrable job skills, he was unable to identify any sedentary occupations to match Claimant's skills that would transfer. According to her records and rehabilitation interview she had vocational restrictions of less than sedentary work activity, and based upon the restrictions of Dr. Volarich she was permanently and totally disabled from the May 24, 2012, injury in isolation. He further stated that because of her difficulty with language; her inability to communicate in English, and with the pain in her arm she was not in a position to be retrained.

Mr. Eldred did admit that the functional capacity evaluation that had been performed in 2015 indicated that she could perform a light work level. It was his opinion that she had vocational

restrictions at the sedentary work level, but admitted that her treating hand surgeon had given Claimant restrictions at the light level, that the FCE by the physical therapist had given her restrictions at the light level, and Dr. Crockett, who also examined her, found that she could use her right hand and that there was no reason for any significant disability to that hand. Mr. Eldred admitted that this opinion was also shared by Dr. Scott Swango, a board certified hand surgeon who had seen her twice and found no atrophy in her hand. He found it was not useless, and that there were no reasons for any restrictions for the use of her right hand. There was no objective evidence that her right hand was only a helping hand. She also had normal nerve conduction studies twice, in March 2015 and July 2013.

Mr. Eldred also admitted if there was evidence that she used her right hand and if you applied the restrictions by all of the physicians other than Dr. Volarich, she could use her right hand and could compete in the open labor market and not be permanently and totally disabled.

Judith Gonzalez, psychologist, also testified live at the hearing of this case. She had evaluated the claimant regarding her ability to read and write Spanish. Ms. Gonzalez found that Claimant's Spanish reading abilities were ranked Reading-1 at an elementary proficiency level. Her ability to write was ranked Writing-1, which is also an elementary proficiency on a scale of 1 to 5 .

The employee, Telma Merida, testified at length at the hearing. She was born in April of 1963, which made her 56 years of age. She cannot write or communicate in English, and her daughter translates for Claimant in her normal day-to-day activities. She was born in Guatemala.

She testified that on May 24, 2012, she was working in the packaging department on a machine when her supervisor stopped her and had her work on another machine that was not working properly. A package was stuck. And when she went to get the package, the machine for some reason started and closed on her right hand and her hand was trapped by the machine and burned by hot glue.

Pictures were taken of her hand on the day of the injury. But prior to that injury she had not had any problems using her right hand in performing activities on that machine nor doing her job. She had some medical treatment that included some injections in her hand, along with some physical therapy, but the treatment did not help her hand. She still continued to work there on the same machine after she finished therapy and was released from treatment. She still could not grab anything with her hand or use it well. Her work schedule was the same. She did not want to quit work, but worked until 2014, when she was diagnosed breast cancer. Prior to that diagnosis, she had continued working, but with no overtime. She testified that she was ultimately terminated after she returned from an off work period due to her cancer.

Ms. Merida testified that her right hand is now just a "helper hand." She cannot write, sew, knit or play the piano. She cannot cut with scissors, and she cannot mow. Her daughter helps her with any significant physical activities. She cannot make a fist. She has pain in her hand that goes up to her shoulder. She can drive, but only for short distances. She is only taking over-the-counter medication like ibuprofen or Tylenol.

She testified that her husband used to help her with some of her tasks, but he passed away in August of 2018. Her present status is as a resident alien. She only attended the third or fourth grade and she worked to support her family. She passed her Missouri driver's license test because it was in Spanish.

Ms. Merida testified that she cannot work because of the difficulty with her hand and it is essentially useless.

On cross-examination she admitted that she recalled her deposition and her testimony was essentially the same. She never had any surgery to her hand and only takes Naprosyn, two to four a day, and takes no prescription medications. She still tries to do some exercises with her hand, including rubbing it and stretching it out. She admitted that she still drives. She did go back to work after the accident, but used her left hand more because of the problems with her right hand. She admitted from the day of the injury until her last day of employment on July 1, 2014, she did not miss a day of work because of her injury. She admitted that the testimony in her deposition is the same as it was today. She cannot do anything with her right hand and can use it for no activities. She cannot close her hand or cut with a knife or use her grip because things just fall out of her hands.

Further cross-examination was held concerning Exhibit F, which was a surveillance videotape of Claimant shown to her during her cross-examination. There are several days of surveillance video taken in April of 2019. Claimant clearly identified herself in the video doing activities and completing tasks, including walking on the treadmill, operating a cell phone, and driving. There was also clear video evidence of Ms. Merida carrying what appeared to be pedestals with her right hand and on a subsequent day carrying a pitcher of water to water her garden. She admitted that it was her doing those tasks.

Claimant's attorney did object to the videotape. However, pursuant to RSMo 287.215, the videotape was allowed into evidence since it did not qualify as a statement per statute. Claimant's attorney demanded an opportunity to cross-examine the videographer. A conference call was held subsequent to the final hearing to allow Claimant's counsel an opportunity to produce authority for her request to cross-examine the videographer. No specific authorities were presented by Claimant's attorney regarding such a right. As Claimant clearly identified herself in the video, there were no evidentiary issues as to the credibility of the video. It actually did show the claimant engaged in numerous physical activities that included significant use of her right hand. Such a request from Claimant's attorney was overruled, and the videotape was accepted into evidence.

Dr. David Volarich testified on behalf of Claimant by deposition. He evaluated the claimant on February 4, 2016, and provided two additional reports, on August 28, 2017, and November 28, 2017, by letter. He testified that Claimant sustained an injury to her right hand on May 24, 2012, when she pulled a package out of a packaging machine and it started to function while her right hand was trapped and her right hand was burned with hot glue. Dr. Volarich indicated that he evaluated her medical records and did a physical examination. He ultimately arrived at a diagnosis of thermal

burn injuries to her right hand, index, and long fingers and the adjacent services at the proximal interphalangeal joint status post non-operative care, crush injury of the right hand causing posttraumatic stiffness, and loss of motion, particularly with grip.

Regarding Claimant's 2013 injury, Dr. Volarich found that there was mild forearm, wrist, and hand pain secondary to overcompensation for the right hand injury which was resolved and asymptomatic. He did not assign any disability to the August 1, 2013, claim.

Dr. Volarich believed that the injury which occurred on May 24, 2012, when Claimant pulled a package out of the machine and it then caught her hand and jammed was the prevailing factor in the 2012 injury causing the post-traumatic stiffness, muscle weakness, and loss of grip strength in the right hand, as well as pinch and flexion in the index and long finger. He thought that she was at maximum medical improvement and rated her at 35 % to the right hand at the 175 week level.

Dr. Volarich suggested that Claimant undergo vocational evaluation to determine, based upon her age, education, and vocational background, whether she was permanently and totally disabled. He testified that he had no objection to her returning to work within his limitations.

He thought she needed future medical treatment for pain and that she was taking Tylenol four times per day, but if her pain got worse she might need something stronger, muscle relaxants, or physical therapy. He gave her work restrictions which were listed on page 9 of his report and included that she should not handle weights greater than 1-2 pounds with her right upper extremity alone and extended away from her body and she avoid gripping, squeezing, pushing, pulling, twisting rotatory motions, and similar tasks.

Dr. Volarich's subsequent addendum letters were after his review of the report from Judy Gonzalez, Psy.D., a vocational assessment by Phil Eldred, and the depositions Telma Merida and Dr. McNemar. After reviewing those materials, he indicated that there would be no changes to his original report.

On cross-examination, Dr. Volarich indicated that he had reviewed photographs he had taken himself at his evaluation of Ms. Merida. He found a little bit of skin fading and scar tissue, but there was no swelling or hyperatrophic scar. He found no atrophy in her hands, although he did find some in her arm and forearm. He admitted that she did not have an injury to the forearm. He did not find anything significant and admitted that because of the pain and discomfort, she had significant loss of grip strength. By her history she claimed she did not use her hand at all. Dr. Volarich indicated he would have expected more by way of atrophy in her hand. He indicated that he only reported what he saw and what he found was consistent with the FCE findings which showed diminished strength and placed Claimant in a light work category. Dr. Volarich admitted that she might be using her hand more than what she told him she was.

Dr. Volarich admitted that he had reviewed the records of Dr. Swango, the hand surgeon from Springfield, who did not put any restrictions on her and based upon the FCE findings put her in the light category. He did not suggest any treatment for Claimant. Dr. Swango's rating, along with Dr. McNemar's, her treating doctor, were 7\%, and he did not find any restrictions. Dr. Volarich indicated that the evaluation of Dr. Crockett, who saw Claimant in 2018, was completely different than his evaluation because Dr. Crockett found no atrophy, trace weakness in the right hand, no trigger finger, and no deformities. Dr. Volarich admitted that Claimant could have regained some of her strength and movement since he saw her and Dr. Crockett's finding of no work restrictions was different than what he suggested.

Dr. Volarich stated he was not surprised that she had two normal EMGs and nerve conduction studies, because she did not have carpal tunnel. He had not seen the vocational report by a subsequent vocational expert, Gary Weimholt. Dr. Volarich testified that he did not think she was doing any hand exercises when he saw her, although he did show her how to do some stretching exercises. He stated that he thought it was possible that the exercises that he suggested could have increased her strength.

Dr. Volarich testified that maybe some occupational therapy would provide some benefit, but as far as medications or injections, she did not need any of those for the future. Dr. Volarich indicated it was his understanding that she did not work after the accident with her hand in the same fashion that he had evaluated her in. He did not know how much she was actually using her hand as she was primarily using her left hand, but she did work. He acknowledged that the doctors that had seen her since his evaluation, the occupational physiatrist, and the hand surgeon, both had different restrictions than he did.

Dr. Boyd Crockett testified on behalf of the employer and insurer by deposition. Dr. Crockett saw the claimant on April 30, 2018. Dr. Crockett is a board certified Physical Medicine and Rehabilitation physician. He found that Ms. Merida had difficulty closing her right hand, difficulty with her grip, and according to her history she was in constant pain and had pain radiating up into her arm.

His examination revealed she was neurologically intact, her sensation was intact, her reflexes were intact, and her right hand had trace weakness, but he found no atrophy with full finger range of motion with no triggering. He testified that he did not see any atrophy or wasting of any kind in the right hand, which agreed with Dr. Volarich's evaluation. He stated if there was a report of complete disuse or nonuse of the hand, he would have expected to see some atrophy, which he did not. Dr. Crockett indicated that her hand had minimal weakness in the right and her left grip was stronger than her right. He did not see any post-traumatic stiffness of her right index or right long fingers. He did believe that the injury in May of 2012 contributed to cause her some current hand symptoms, but not her entire arm symptoms. She did not need any additional treatment, and he provided a rating of 5 % to the hand.

Dr. Crockett testified that he saw the EMG and nerve conduction studies that were normal in July 2013 and March 2015 and neither one provided any evidence objectively of the source of the pain and discomfort that she was reporting. He testified that there were no objective reasons to limit her right upper extremity utilization, and he provided no restrictions. Dr. Crockett found no objective reasons why she could not return to the open labor market and use her right hand in a work capacity. He felt that she was at maximum medical improvement and did not find any objective evidence that the right hand was useless, as Claimant reported.

On cross-examination Dr. Crockett testified that Claimant had had difficulties using her hand with grip and writing and she dropped objects from her right hand showed she was in fact using it. Dr. Crockett testified he performs his evaluation by watching her and having her grip his hands. He did not see any scarring and did not feel it was necessary to use a goniometer or grip strength device, based upon his experience. H. Shee did a full evaluation and examination.

The deposition testimony of Dr. Scott Swango was also admitted into evidence by Employer and Insurer. Dr. Swango is a board certified hand surgeon in Springfield, Missouri. He has been board certified since 1995. His practice is really from just above the elbow to the fingertip. He spends approximately 99 % of his time on surgical evaluations, and he also does some work comp evaluations.

Dr. Swango testified that he saw the claimant on two occasions with the first time being in February of 2014. At that time she told him that she had a crush and burn injury to her right hand. She was having some sensation of pulling or drawing up in the palm of her hand and odd sensations of bugs crawling or stinging her and weakness in her grip. She was still working at that time. He found scarring from the prior burn and she had normal sensation with negative median nerve compression test. She also had some stiffness in a couple of her fingers making it difficult for her to make a closed fist. She had limitation in the PIP joint of her right index finger, which was limited to about 50 degrees. Dr. Swango recommended that she go back and receive some more hand therapy and suggested six additional therapy sessions. He thought that she could continue with the employment that she had at the time.

He saw Claimant again in 2017, and her condition was generally the same with some abnormal sensations, pain, and stiffness. He reviewed the EMG/nerve conduction studies and found that they were normal and saw that her FCE had her at light level. In comparison of the two evaluations, he thought they were similar and that she still had the burn scar and some stiffness in her fingers, but the mobility in her fingers was better on the second evaluation. She had gained 15 degrees of motion in the PIP joint and he found that she had mild to moderate stiffness and that she had reached maximum medical improvement. He did not believe there was any additional medical that would be necessary and he agreed with the disability that Dr. McNemar had provided of 7 %.

He did not see any atrophy in her hand or arm. He did not believe that her hand as she described it was completely useless or that she could not use her hand. He found no reasons to put any restrictions on her hand the first time since she was working full duty. The Functional Capacity Evaluation indicated she should be able to use her hand as well. Therefore, in the second evaluation there was no reason for him to change his opinion. He agreed that she did have some scarring and that the middle joint of her finger was limited to 50 degrees. He believed that she did have some tightness in her hand. Dr. Swango also indicated that there had been some clinical speculation that she had some small fiber neuropathy that could have caused sensory loss, aging, or perhaps environmental exposure and the findings were not normal, but he did not believe it was the result of trauma. He understood that she was taking Naprosyn for her hand complaints.

Dr. Swango indicated that she had testified that her right hand was so disabled it essentially was a "helping hand" and that she must assist it. He found no objective evidence to corroborate this claim. He did find stiffness that contributed to some hand clumsiness, but her stiffness was only in the middle long finger and her range of motion had improved in the finger from the first time he saw her. He agreed that there was no evidence of nerve damage in her hand and agreed that her passive range of motion exceeded her active motion could be related to the fact that she was not giving full effort. He found nothing objectively that would demonstrate that she could not use her right hand or that it was significantly impaired other than some mild loss of range of motion in the finger. Dr. Swango indicated that the loss of flexibility and range of motion was only in her index and middle fingers which he termed mild to moderate.

The deposition of Dr. Mark McNemar was also presented into evidence by the employer and insurer. Dr. Mark McNemar was Claimant's treating doctor and testified in January 2015. He indicated that he had examined Claimant on several occasions and provided treatment that included some physical therapy.

Dr. McNemar saw her on a number of occasions and reviewed the physical therapy records. He first saw her on May 15, 2013, and last saw her in 2014 after ordering a functional capacity evaluation. He then forwarded a report dated September 2, 2015, that indicated she did not need any further treatment. He stated the impairment to her hand was related to the May 24, 2012, injury, but the issues she had with her arm and shoulder were not related to the work injury.

He provided a rating of 7 % to the hand and provided work restrictions of carrying up to 10 pounds, pushing a cart up to 40 pounds, pulling a cart of up to 40 pounds, stoop and handling using her fingers on the left on a frequent basis, she could walk carrying 20 pounds, reach overhead using both hands on a frequent basis, and on the right occasionally can balance, reach, intermediate and do handling of objects.

The employer and insurer also presented the deposition testimony of Gary Weimholt. Mr. Weimholt is a vocational rehabilitation consultant. He is certified through the Commission as a disability management specialist and certified in Kansas as a qualified rehabilitation professional and in Missouri as a qualified rehabilitation provider. His background involves doing medical case management, vocational rehabilitation services, vocational assessments, writing plans for return to work, and in the past ten years he has been involved in assessments and opinions as to vocational abilities and opinions as to employability in workers' compensation cases. He indicated that his practice has grown to about 70 % to 80 % at the request of Claimant attorneys and 20 % to at the request of the employer or the Second Injury Fund.

Mr. Weimholt evaluated Claimant on December 14, 2017, and authored a report that reflected her vocational and educational background and her injury from 2012 to her right hand. She stated she could not prepare any kind of meal, although she was able to load laundry into the washer and dryer with her left hand. She cannot do cross-stitch, and her husband had to do all the ironing. She cannot use her right hand at the dinner table, but she has no problem sitting in a chair and can walk and exercise for 15 to 20 minutes, although she cannot lift any weight with her right hand, such as a gallon of milk.

He testified that he reviewed her medical history and her deposition and Functional Capacity Evaluation that had been done at the request of Dr. McNemar. He noted Claimant could carry on a frequent basis 20 pounds, on a constant basis 10 pounds, which exceeds the definition of sedentary work and would allow work at least at a light physical demand level. On a frequent basis he would allow reaching overhead with both and in performing fingering on the right on a frequent basis that would be within the light physical demand, and he saw no restrictions on walking or standing.

It was his understanding that Dr. Volarich had indicated in his independent evaluation that she did not have any permanency from the August 1, 2013, injury. He understood that she had been

rated at 7 % to the hand by the treating doctor and Dr. McNemar's restrictions followed the Functional Capacity Evaluation pretty closely. He believed that her job activities would fall within the light physical demand level.

Mr. Weimholt did review Dr. Volarich's evaluation and IME report, and he found that his restrictions would allow considerable standing and walking with no limit, but some limits on overall weight handling on the right and with the right hand when it extended from her body. There was no limitation on the left hand lifting and it would be within possible variation of light physical demand level. However, it would not include a repetitive hand job, meaning that one or two motions a minute or more than to continue for a long time. He also reviewed Dr. Swango's restrictions of which there really was not anything specific and no restrictions on her work activities. He agreed that Claimant's inability to speak English is a barrier to employment.

In his research he found that Hispanic/Latino immigrants made up 22.3 % of workers in the leisure and hospitality industry. Mr. Weimholt also listed entry-level jobs and unskilled that occurred regularly in the labor market in this state that focused mainly upon housekeeping which would be within the restrictions that she was given. Most of these jobs were in the Joplin, Missouri, area where she testified she had driven to Joplin several times. As a result, Mr. Weimholt believed that she could compete in the open labor market at certain job levels within the restrictions provided by the FCE, Dr. Swango, Dr. McNemar, and certainly within the restrictions provided by Dr. Crockett. He disagreed with Mr. Elred as to his evaluation that her vocational restrictions were sedentary since the majority of the doctors including Dr. Swango and the FCE found Claimant at a light work level.

On cross-examination Mr. Weimholt did agree that she had never worked in the leisure and hospitality industry. Mr. Weimholt testified that his experience with a job such as a cleaner or housekeeper would involve vacuuming carpets, emptying trash cans, wiping down mirrors and fixtures, but did not involve any kind of significant lifting. He admitted that she does only speak Spanish and has no knowledge of computers, but the jobs he found did not require those skills. The only repetitive work that she was restricted from was pursuant to Dr. Volarich's report and evaluation. Mr. Weimholt also agreed that her problems with her preexisting injuries have resolved according to Dr. Volarich and that leading up to 2012 she did not have any lingering problems or incidents.

Claimant had a compensable injury to her right hand on May 24, 2012, when it was caught in a package machine while she was attempting to remove a package from the machine. The hand was crushed, as well as burned from hot glue. The issue to be determined is the nature and extent of that injury.

Pursuant to 287.808 , RSMo, the claimant bears the burden of proving an entitlement to compensation under the Missouri Workers' Compensation Law. In asserting her claim, she must establish such proposition is more likely to be true than not true. Smith v. Capital Region Medical Center, 458 S.W.3d 406, 417-418 (Mo. App. 2014) discusses that the burden of proof means the claimant has both the burden of production as well as the burden of persuasion. While Claimant can sustain her burden of production by having some evidence to support each element of the claim, "[t]he burden

of persuasion is a party's duty to convince the fact-finder to view the facts in a way that favors that party." 458 S.W.3d 417 (quoting M.A.H. v. Mo. Dept. of Social Services, 447 S.W.3d 694, 700).

The parties have stipulated that Claimant lost no work as a result of the injury from the date of injury on May 24, 2012, up to her termination on July 1, 2014. She did receive medical evaluations and treatment. She testified that although she was working, she could not use her right hand as much and was required to compensate with her left hand. The evidence shows that she left the employment for nonwork-related health issues and was terminated after she returned from medical leave some two years after the original injury. She has not been employed since, and she believes it is because she is unable to work due to the injuries and problems with her right hand. I find there is clear and convincing evidence that demonstrates that Claimant's right hand is not useless as she has testified, thereby undermining the claim that she is permanently and totally disabled.

Claimant testified that she uses the right hand only as a helper hand and cannot use it for any activities and stated that she cannot close it and things just fall out of her hand when she attempts to use it. Dr. Volarich, the claimant's IME physician, and Phil Eldred, Claimant's vocational expert, find that she was permanently totally disabled, I believe there is substantial credible evidence to the contrary from the treating doctor, Dr. McNemar, who found that her work restrictions were at a light level and only provided a 7 % disability to her hand. In addition, the board certified hand surgeon, Dr. Swango, found that although there was some loss of range of motion in two fingers in her hand, there was really no objective evidence that she could not use the hand at all. Specifically, Dr. Swango stated:

Q: As a result of your two evaluations do you believe that her hand as described to me in her deposition was completely useless, that she simply could not use that hand?

A: No.

Q: From the physical standpoint, from an objective testing standpoint as you evaluated her hand, did you see any significant restrictions on her ability to use her hand would have been necessary that you thought there were a number of things she couldn't do or shouldn't do with her hand?

A: You know from my perspective, I did not see any reason to put restrictions on her hand. The first time I saw her, she was doing full duty even though she indicated it was hard for her to do, she was still able to do it. And so the Functional Capacity Evaluation indicated that she should be able to use her hand as well. In my second evaluation, I felt there was no reason to change that opinion.

(Page 18-19, Exhibit D-Dr. Swango's deposition)

Dr. Boyd Crockett, the employer and insurer's IME physician, found no atrophy and found that her neurological status in her hand was normal, her sensations were normal, as well as her reflexes, and he found no weakness in her right hand. He found no objective evidence that would keep her from using her hand or any other reason she could not return to the open labor market. A combination of those opinions from the treating and IME physicians provide clear and convincing evidence that Claimant can use her hand. There is no objective physical evidence that provides the basis for the opinions that she cannot use her hand or that it is only a "helper hand." I find the testimony of Dr. Swango particularly credible and believable as a board-certified hand surgeon and physician who saw her twice and in fact at one time suggested additional physical therapy that was completed. The second time he saw her, he was very clear that her disability was minimal and agreed with the treating doctor, Dr. McNemar, of a 7 % rating.

Claimant's own independent medical evaluation physician, Dr. Volarich, indicated that he did not find any atrophy in her hand, although he thought there would have been more if she was not using it as she described to him. He agreed that she may be using it more than she told him about. (Page 32-33, Exhibit 2-Dr. Volarich's deposition).

Finally, there is the testimony of Claimant, Telma Merida, herself. She testified not only in her deposition but repeated it at the hearing that her right hand was simply useless, she could not use it and did not use it. She testified that her inability to use her hand prevented her from working, although she had worked for almost two years, until other health issues caused her to take a leave of absence and was then terminated,

Ms. Merida appeared at the hearing holding her hand without moving it and claimed it was painful to use and she could not undertake any activities with it. This is clearly opposite of the objective evidence from the medical doctors in this case other than Dr. Volarich. Further, Employer, over objection, provided video evidence of Claimant's activities through surveillance video of her using her right hand. Claimant clearly identified herself in the video (Exhibit F) and agreed that it was her who was shown carrying pedestals and even showed her watering her garden with a water pitcher, using her right hand with no assistance from her left hand. Those activities alone, taken just a few months prior to the hearing, were clearly opposite of her testimony at the hearing. That evidence does show that her hand was not useless and further supports the expert testimony of Dr. Swango and Dr. Crockett that she in fact could use her hand and there was no reason from a medical standpoint to indicate that her hand was useless or she was completely disabled as she testified.

As a result, I do not find Claimant's testimony credible. The evidence in this case does not support a permanent total disability finding as suggested by Dr. Volarich and testified to by Phil Eldred, Claimant's vocational expert. The sedentary or less-than-sedentary restrictions provided by Dr. Volarich are not supported by the medical findings of the rest of the medical experts and the evidence presented, including the findings of the treating doctor, Dr. McNemar. Even Mr. Eldred admitted that if you were to find that Claimant could perform work at a light duty as the FCE had found and all the physicians except for Dr. Volarich, that she was not permanently and totally disabled and could compete in the open labor market despite her age and language disability. There was credible evidence by Employer and Insurer's vocational expert, Mr. Weimholt, that there were jobs available to Claimant even with light level work restrictions.

In reviewing all the evidence presented before me at the June 20, 2019, hearing and weighing the credibility of all the witnesses, it is the testimony of Dr. Swango's and his medical findings I find most credible and compelling. Claimant's testimony regarding her right hand disabilities, inability to work, and alleged permanent total disability is neither credible nor supported by substantial objective medical evidence. I find Claimant Telma Merida is not permanently and totally disabled. However, there is clear evidence that she did suffer an injury to her hand which required medical evaluations and treatment. As a result, I do find a 35\% permanent partial disability to the right hand at the 175 week level, and after reviewing the scarring demonstrated, I award four weeks of disfigurement.

Claimant failed to meet her burden of proving the 2013 claim (13-095197). There was insufficient evidence offered as to the issues presented. I find this claim is not compensable and deny all issues presented for this claim.

After evaluation of all the credible medical evidence, I find no substantial evidence to support a future medical award in this case for either the 2012 or 2013 injury. Claimant admitted that she only takes over-the-counter medications and has not had treatment for a long time. The only doctor that suggested future medical was Dr. Volarich, but it was based upon the findings of significant disability that have not been supported by the evidence in this case. As a result, I simply find there is insufficient substantial and credible evidence to support a future medical award in this case.

In all the evidence presented during the hearing, I found no evidence persuasive of Second Injury Fund liability. Although Claimant had a prior injury in 2000, there was evidence that injury had resolved and provided no preexisting disability at the time of the 2012 or 2013 injury. Dr. Volarich testified her preexisting injuries of 2000 and 2012 were asymptomatic and had resolved, and he provided no disability for those issues. (Exhibit 2-Dr. Volarich's deposition, pg. 72). As a result, I find that there is insufficient evidence to find any Second Injury Fund liability.

Jennifer Newman, as Claimant's attorney is awarded 25 % of all compensation awarded herein.

I certify that on 10-29-19

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.


Karen Fisher

Administrative Law Judge

Division of Workers' Compensation