Brenda Smith v. Reliable Life Insurance Company

Employee's application for review alleges that the administrative law judge erred as a matter of law "by not addressing whether Employee was permanently and totally disabled due to a combination of pre-existing injuries and [her] primary injury in a manner that does not fall within RSMO 287.220.3 (resulting in SIF liability) but would result in permanent total disability liability for Employer/Insurer". ${ }^{1}$ Employee argues that "the evidence in this case is substantial and overwhelming that Employee was rendered permanently and totally disabled following the May 17, 2016, injury" and because employee failed to establish Second Injury Fund liability pursuant to 287.220.3, employer/insurer is liable for employee's permanent and total disability, as proven by "substantial and irrefutable"2 evidence. We disagree.

In a letter dated July 22, 2016, Dr. Michael C. Chabot found that employee had reached maximum medical improvement regarding her back and neck strain injuries. He released employee from his care and stated, "She can return to full duty". ${ }^{3}$ After a reevaluation on May 21, 2018, Dr. Chabot opined that employee remained able to return to her prior employment as an insurance sales person. He observed, "[Employee's] high level of subjective complaint [sic] with opacity of objective physical findings, inconsistencies in ROM testing, giving way and inconsistencies on physical examination all suggest symptom embellishment or significant underlying psychological conditions playing a role in her present subjective complaints and physical examination today". ${ }^{4}$

[^0] [^0]: ${ }^{1} Application for Review, filed May 6, 2020, p.1. { }^{2} Id., p. 3. { }^{3} Transcript, p. 4047. { }^{4}$ Id., p. 4045

-3-

Injury No. 16-035534

On April 12, 2019, after a review of relevant medical evidence, vocational rehabilitation counselor Mr. Benjamin D. Hughes opined that employee was capable of work at the sedentary to light levels and returning to work as a social service director, even assuming the restrictions of employee's expert Dr. David T. Volarich. Mr. Hughes further identified a number of other matching vocations including alarm system monitor, security guard, and information clerk.

We credit the opinions of Dr. Chabot and vocational expert Mr. Hughes. These expert opinions constitute competent and substantial evidence in the record. Based on this evidence, we find as a factual matter that the employee herein is not permanently and totally disabled, either due to disability related solely to her May 17, 2016, primary injury or as a result of disabilities related to her primary injury in combination with preexisting disabilities.

Because, as we have found, the employee is not permanently and totally disabled, we need not address the employee's argument, based on dicta included in a 2017 award issued by a Commission with a former Chairman and that lacked an employer representative, asserting that an employer must be liable for permanent total disability in the event an employee fails to establish liability against the Second Injury Fund pursuant to § 287.220.3.

**Conclusion**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Amy L. Young is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this _______ 22nd _______ day of March 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

The majority errs in finding that employee Brenda J. Smith is not permanently and totally disabled.

Section 287.020.6 defines total disability "as the ability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent and total disability is whether, given the employee's situation and condition, she is competent to compete in the open labor market. Reiner v. Treasurer of the State of Missouri, 837 S.W.2d 363,367. The most important question is whether an employer in the usual course of business would reasonably be expected to employ the employee in her present physical condition. Id. at 367. Additional factors such as work, experience, education, and age may be considered in determining employability. Reves v. Kindell's Merc. Co., Inc., 793 S.W.2d 917 (Mo. App. 1990).

The question of whether an employee is totally and permanently disabled is not exclusively a medical question and the Commission need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence. Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796,802 (Mo. App. 2011). The Commission may even rely on testimony from the claimant herself. See Pavia v. Smitty's Supermarket, 118, S.W.3d 228, 234 (Mo. App. 2003).

The administrative law judge, while finding the employee to be a poor historian, specifically found that employee did not intentionally misrepresent facts but rather "appeared easily confused during both direct and cross-examination". ${ }^{1}$ She noted that employee alternated between standing and sitting several times during the hearing due to back discomfort and verbalized, "[O]uch". ${ }^{2}$ The administrative law judge's assessment of the employee's credibility, based on her personal observations at hearing, is at odds with Dr. Michael C. Chabot's disparagement of employee's moral character, upon which the majority relies. For this reason, Dr. David T. Volarich's expert opinion regarding the nature and extent of employee's permanent disability is entitled to greater weight.

Dr. Volarich opined that employee was permanently and totally disabled following her May 17, 2016, work injury. Dr. Stephen W. Nagy, employee's treating physician for over ten years, corroborated Dr. Volarich's opinion. In a letter dated March 21, 2017, Dr. Nagy stated, "[N]umerous symptoms and medication side effects make it impossible for [employee] to maintain any type of gainful employment." ${ }^{3}$ He further opined that employee's condition was likely to worsen over time. In that the administrative law judge found that employee's permanent and total disability was not due to the last

[^0]

[^0]: ${ }^{1} Award, p. 14.

{ }^{2} \mathrm{Id}.

{ }^{3}$ Transcript, p. 185.

injury, it is clear that employee's permanent and total disability is due to a combination of pre-existing injuries and her primary injury.

As previously stated by this Commission:

[It is] our view that the 2013 amendments [to § 287.220] are not unconstitutional, in that no rights were extinguished. This is because, "in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury [.]"Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963). In our view, the 2013 amendments to $\S 287.220$ work the effect that employers and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of preexisting disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries. By the same token, we believe an employer is liable for any claim of permanent total disability resulting from the combination of preexisting disability with a subsequent compensable primary injury, where the facts and circumstances of the claim do not satisfy the new and more rigorous standards set for the under $\S 287.220 .3(2)$ for proving a compensable claim of permanent total disability against the Second Injury Fund. Rather than extinguishing any rights or removing any existing remedy, the legislature in 2013 merely shifted back to employers and their insurers any liability that would have otherwise rested with the Second Injury Fund. ${ }^{4}$

The employee's credible testimony and the weight of the more credible expert testimony in the record supports a finding that employee is permanently and totally disabled due to a combination of disability attributable to her primary injury in combination with preexisting injuries. In that the provisions of 287.220 .3 preclude an award of permanent total disability against the Second Injury Fund, the employer/insurer should be held liable. Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls Member

[^0]

[^0]: ${ }^{4}$ Douglas Cosby vs. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No.14-003644 (LIRC, August 16, 2017).

Employee: Brenda J. Smith

Injury No. 16-035534

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

Employer: Reliable Life Insurance Company

Additional Party: The Second Injury Fund

Insurer: Travelers Indemnity Company of America

Appearances: Corey D. Jackson for Employee

Eric Kukowski for Employer-Insurer

Crystal Williams for the Second Injury Fund

Hearing Date: December 18, 2019

Checked by: ALY/kg

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? May 17, 2016.
5. State location where accident occurred or occupational disease contracted: Scott 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.

Employee: Brenda J. Smith

Injury No. 16-035534

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: On May 17, 2016, Employee went to a home to collect an insurance payment, tripped over a large branch, and fell on her right side.

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

1. Parts of body injured by accident or occupational disease: Lumbar and cervical spine.

1. Nature and extent of any permanent disability: 12% body as a whole referable to the lumbar spine and 0% body as a whole referable to the cervical spine.

1. Compensation paid to date for temporary total disability: 0.00.

1. Value necessary medical aid paid to date by the employer-insurer: 3256.25.

1. Value necessary medical aid not furnished by the employer-insurer: None.

1. Employee's average weekly wage: 555.90.

1. Weekly compensation rate: 370.60.

1. Method wages computation: By stipulation.

Amount of compensation payable: $19,694.74 (5 1/7 weeks of unpaid TTD in the amount of $1905.94 + 48 weeks of PPD in the amount of $17,788.80)

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

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: Corey D. Jackson.

Page 2

On December 18, 2019, the employee, Brenda J. Smith, appeared in person and with her attorney, Corey D. Jackson, for a hearing for a final award. The Employer-Insurer was represented at the hearing by their attorney, Eric Kukowski. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Crystal Williams. 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 Travelers Indemnity Co. of America.
2. On or about May 17, 2016, the employee was an employee of Reliable Life Insurance Co. and was working under the Workers' Compensation Act.
3. On or about May 17, 2016, 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 $\ 555.90, resulting in a compensation rate of $\ 370.60 for temporary total disability benefits and permanent partial disability benefits.
7. The employer-insurer furnished medical aid in the amount of $\ 3256.25.
8. The employer-insurer paid $\ 0.00 in temporary disability benefits.
9. There is no claim for previously incurred medical aid.
10. There is no claim for mileage.
11. Employee reached maximum medical improvement on July 22, 2016.

1. Whether the employee's injury was medically causally related to the accident;
2. Whether the employer is liable for additional or future medical aid;
3. Whether the employer is liable for additional temporary total or temporary partial disability benefits from May 18, 2016 through July 22, 2016 in the amount of $\ 3441.29;
4. Whether the employer is liable for permanent partial versus permanent total disability benefits;
5. Whether the Second Injury Fund is liable for permanent total disability benefits.

**Injury No. 16-035534**

The following exhibits were offered and admitted into evidence:

1. Division of Workers’ Compensation Records
2. Dr. Volarich 60 day Packet
3. Dr. Nagy 60 day Packet
4. Stella (Doering) Frank Deposition and Exhibits (Exhibit 4 was offered and admitted subject to objections contained within the deposition transcript.)
5. Medical Records File
6. SSA Records

A. Deposition of Dr. Michael Chabot (Exhibit A was offered and admitted subject to objections contained within the deposition transcript.)

I. Deposition of Benjamin Hughes, Vocational Expert

II. Deposition of Brenda Smith dated May 10, 2018

Exhibits I and II were offered and admitted subject to objections contained within the deposition transcripts.

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.

Any objections not expressly ruled upon in the depositions, at trial, or in this award are overruled.

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

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations at hearing, I find:

Page 4

Employee was 59 years old at the time of hearing. She lives in Portageville, Missouri. She is married to Billy Joe Smith, but currently separated. She has three adult children and has custody of three grandchildren, ages 14,16 , and 18 . She has a GED, an associate's degree in social work, a chauffer's license, and a Certified Nurse Assistant's license. She is presently unemployed and receiving social security disability benefits.

Employee was last employed by Reliable Life Insurance Company (hereafter "Employer") as an insurance agent from April of 2015 until June of 2016. Her job required her to drive around the local area, to meet and collect money from clients, and to sell insurance. Immediately prior to working for Reliable Life Insurance, Employee was unemployed for an uncertain period of time. She applied for social security disability benefits on August 20, 2014. She reported on the application that she stopped working on January 17, 2014. Her application was denied. She filed an appeal on March 9, 2015. At her deposition on May 10, 2018, Employee testified that she went to work for Banker's Life in Cape Girardeau from October of 2014 through February of 2015. Before filing her social security disability application, she worked at Gideon Care Center from 2008 to 2014 in several different roles including medical record clerk, transportation of residents, and social service director. Prior to working for Gideon Care Center, she worked as a home health aide for approximately eight months. From 2002 to 2004, she was employed by S\&T Transport. She drove clients from their homes to medical appointments. From 2000 to 2001, she worked as a cashier at Wal-Mart. From 1997 to 2000, she worked at a balloon factory. Before that, she worked at another factory making picture frames. From 1991 to 1994, she worked as a Certified Nurse at Gideon Care Center. Before that, her work history consisted of working for Media Press for three to four years, cleaning in a hospital, and working at a gas station.

Employee has a non-work related reflux disease that began in approximately 1973. For most of her life she's had symptoms of chronic abdominal pain. She's had multiple admissions for chest pain and been diagnosed with esophagitis. She underwent a fundoplication in 2012 that had to be reversed approximately one year later because it caused dysphagia. Following the reversal, she experienced chronic pain with diarrhea. Prior to and after the injury of May 17, 2016, Employee required medications for her condition.

On October 11, 1991, she slipped and fell in a puddle of urine while working in a nursing home and developed pain in her left hip and buttock. She was diagnosed with a strain and her symptoms soon resolved.

Employee sustained a work-related accident in 1993 that resulted in a torn tendon to her wrist. The injury was accepted as compensable and benefits were paid, including surgical repair. She did not file a formal claim. She denied that her wrist injury impacted her ability to work.

On November 1, 1993, Employee injured her low back at work for Gideon Care Center while lifting a paraplegic resident in a nursing home. She also had pain and tingling down her left leg. She reinjured her back at work on December 4, 1993. She received conservative treatment, including physical therapy, and remained off work for approximately nine months. She testified that she was bedridden during this time. She testified that after being bedridden for nine months, she got better and was eventually pain free. She testified that she had to guard her back and could not lift heavy items. She settled her workers' compensation claims against Gideon Care Center for 15 % of the body as a whole referable to her low back and legs. ${ }^{1}$ Her settlement referenced both accident dates of November 1, 1993 and December 4, 1993.

In the early 1990s she fractured her left ankle while playing a video game at home. She denied ongoing symptoms after she recovered and denied the injury affected her ability to work.

On December 8, 2012, she injured her left arm when she fell off a plastic table at home. She denied ongoing symptoms after she recovered and denied the injury affected her ability to work.

Employee injured her back again on April 1, 2014, while lifting and carrying boxes at home. She developed low back pain into the right leg with burning sensation in her bilateral feet. Employee was evaluated by Dr. Nagy who noted the aforementioned complaints. He also noted that Employee is diabetic and complained "her feet hurt so bad she can hardly walk after sitting for any length of time." She also complained of knee pain. Employee was offered Neurontin, but refused due to her concern about side effects. She was advised to do no lifting or heavy housework. An MRI of the lumbar spine on May 21, 2014 showed a broad-based disc bulge to the left at L4-5 with a small disc bulge at L5-S1 and multilevel stenosis at L2-3 and L4-5. She was referred to a neurosurgeon, Dr. Brandon Scott, who evaluated her on June 26, 2014. Dr. Scott documented her pain at $2 / 10$. He noted that her pain began more than five years prior and had gotten worse two months prior to the appointment. He noted that her low back pain was chronic with constant pain. She also described pain radiating down the right leg into her toes. Dr. Scott reviewed her MRI of the lumbar spine and noted mild degeneration with mild

[^0]

[^0]: ${ }^{1}$ There are two copies of the stipulation for compromise settlement contained in the Division of Workers' Compensation's certified records (Employee Exhibit 1). The two copies appear identical except that one copy reflects the settlement was based on 15 % of the body as a whole ("BAW") whereas the second copy appears to have been altered to reflect the settlement was based on 25 % instead of 15 %. The monetary amount of the settlement $(\ 5728.80) is the same on both copies. The first copy has the number " 38 " written at the bottom inside a circle, whereas the second copy does not. The second copy also has illegible writing added above paragraph 5 and paragraph 9 , whereas the first copy does not. The second copy has Injury Number "93-175033" handwritten and circled at the top of the document, whereas the first copy does not. The second copy appears to have been stamped with a seal, whereas the first copy does not. Because Employee testified that she settled her claim for 15 % and because the settlement amount corresponds with a settlement of 15 % BAW ( 400 weeks x $15 \%=60 weeks x PPD rate of \$ 95.58=\ 5728.80 ) it is presumed that Employee's settlement was based on a permanent partial disability of 15 % of the BAW.

**Injury No. 16-035534**

Neuroformal stenosis at multiple levels. He recommended a right sacroiliac injection for diagnostic and therapeutic reasons. He did not think she was a surgical candidate. He referred her to a neurologist for evaluation of complaints of left facial numbness and intermittent facial droop. Employee underwent an SI joint injection with Dr. Carmen Keith on July 25, 2014.

Employee applied for social security disability benefits on August 20, 2014. Employee identified the following conditions on her application that limited her ability to work: degenerative bone disease, chronic nerve pain, diabetes, mini strokes, hypertension, obesity, depression, anxiety, and stomach disorder. She reported that she stopped working on January 17, 2014 due to these conditions. Her application was denied. She filed an appeal on March 9, 2015 and added that she had also been diagnosed with COPD (chronic obstructive pulmonary disease) in December of 2014. Her appeal was denied.

She began working for Reliable Life Insurance Company in approximately April of 2015.

Leading up to and after her work accident on May 17, 2016, Employee used puffers on a daily basis to treat her COPD. She denied during testimony that her COPD limited her ability to work, but did testify that in extreme weather conditions, she would return to the office to be indoors. She testified that if she got too hot, she could not breathe and would return to the office to cool down. In the summer, this happened one to two times per day.

Employee testified that she was having no trouble with her back when she went to work for Employer. She acknowledged having normal aches and pains, but denied she was having any radicular symptoms. She testified that she did have a twenty-five pound lifting restriction while working for Employer and that she guarded her back. She testified that her job did not require her to lift more than ten pounds. She testified that prior to the May 17, 2016 accident she did not have problems with her low back for a long time, however this testimony is contradicted by the medical records.

In approximately December of 2015, Employee stepped in a hole in her yard at home and re-injured her low back. The medical records reflect that Employee returned to Dr. Scott on December 16, 2015. She reported that the previous injection provided pain relief for more than six months. Dr. Scott recorded Employee's pain level at the time of appointment at 4/10. Employee reported aching, dull, and stabbing pain several times daily that was constant in duration. Her pain continued to radiate to the right leg. Dr. Scott noted that Employee presented with "increasing right sacroiliac pain" after falling in a hole. Dr. Scott recommended another SI joint injection and an MRI of the lumbar spine to rule out pathology. Employee was scheduled for an MRI on January 11, 2016 at Black River Medical Center. Employee testified that she declined the injection because her symptoms were tolerable. It is unknown whether the MRI was performed as scheduled.

Employee has multiple medical conditions that predated her May 17, 2016 accident, including hypertension, depression, anxiety, panic attacks, post-traumatic stress disorder, noninsulin dependent diabetes with gastroparesis and probable peripheral neuropathy, endometriosis, osteoporosis, cardiovascular disease, GERD, Barrett's esophagitis, salivary gland

**Injury No. 16-035534**

stones, osteoarthritis of the ankles, knees, hips, lumbar and cervical spine, dyslipidemia, hiatal hernia, left adrenal gland nodule, irritable bowel syndrome, hepatic steatosis, obstructive sleep apnea, diverticulosis, chronic abdominal pain, chronic diarrhea, COPD, and vertigo. Leading up to the accident of May 17, 2016, Employee took medications for anxiety and depression. She admitted that if she did not take these medications, her anxiety and depression would cause her problems. Leading up to May 17, 2016, she also took medications for diabetes, COPD, her heart, and for problems sleeping at night.

**Accident of May 17, 2016**

On May 17, 2016, Employee tripped on a huge tree limb in a client's yard and injured her neck and back. She went to the emergency room the same day. The triage note states, "pt reports tripped over feet and fell, pt reports chronic back pain that is worse since fall." The emergency room note also documents that Employee reported she "has been dizzy with a headache and falling over past 3 days." Employee underwent CT scans of the cervical and lumbar spine that showed degenerative disc disease. A CT of the head showed no acute intracranial hemorrhage or mass effect and an x-ray of the right forearm was normal. Employee was diagnosed with headache, SI joint and low back pain and treated with Flexeril and Percocet.

She followed up with Dr. Staubinger on May 23, 2016. Dr. Staubinger diagnosed a cervical strain, contusion and bruising of the right upper extremity, and exacerbation of low back pain radiating into the right leg with preexisting low back pain with radiculopathy. Dr. Staubinger instructed Employee to use a walker and to be off work until deemed able to return to work by her neurosurgeon, Dr. Scott. Dr. Staubinger noted that Employee already had an appointment scheduled with Dr. Scott and advised her to keep the appointment. Employee testified that she had a follow-up appointment scheduled with Dr. Scott that had been on the books for "over a year." This seems unlikely considering she saw Dr. Scott in December of 2015, just five months before the work accident. Employee did not return to Dr. Scott.

Employee saw her primary care doctor, Dr. Nagy, on May 24, 2016, with complaints of severe right low back pain with paresthesia to the right gluteal, posterior upper leg, posterior lower leg and foot. Employee underwent an MRI of the lumbar spine on May 31, 2016 that showed mild levoscoliosis, mild spondylosis, and minimal/mild facet arthropathy, and multilevel degenerative disc disease. It was noted that the left L2 and L3 nerve root contacted disc/osteophyte complexes lateral to the foramen, but were opposite to the side of her current clinical complaints.

Employee was evaluated by Dr. Chabot on June 22, 2016. He documented complaints of diffuse pain in her neck, mid thoracic and lumbar spine with numbness in her arms and weakness in her legs. She also had complaints of vertigo. Dr. Chabot took a history from Employee and reviewed her medical records. He noted that she had a history of chronic back complaints and multiple comorbidities that may contribute to her complaints. However, he opined that at least a portion of her symptoms were related to her work accident and recommended physical therapy, medications, and a 20-pound lifting limit that would allow her to work full duty as a life

**Injury No. 16-035534**

insurance agent. Specifically, he recommended that she use Extra Strength Tylenol to moderate her pain.

Physical therapy was ordered three times a week for four weeks. Employee attended physical therapy from July 6, 2016 through July 27, 2016 for a total of four visits. She cancelled three scheduled visits. According to Select Physical Therapy records, Employee was discharged for noncompliance after she failed to attend sessions for two weeks.

Employee returned to Dr. Chabot on July 22, 2016. Dr. Chabot recorded that Employee stated she was "doing fine." She was not using any medications to moderate her symptoms. Her physical exam was normal. Dr. Chabot noted that her neck and back strains/contusions had resolved and he released her at maximum medical improvement to full duty.

Employee testified that she returned to work for one day, but her testimony at hearing and at her deposition was unclear as to whether her attempt to return to work was in June or July of 2016. She testified that she hurt all day and told her boss she was sorry, but she could not do it. She testified that she was physically unable to work, but she also testified that her nephew had died and she was having a nervous breakdown. She was subsequently terminated.

On September 9, 2016, Employee was seen at Southeast Health Emergency Department with complaints of pain and swelling to her left fibula and left hip. She also complained of pain from her neck to tailbone. According to the emergency room records, Employee "missed step this am." The notes indicate Employee fell from her porch—an approximate two foot drop. She was noted to have multiple contusions and sprains. Employee underwent a CT scan of the lumbar spine that showed multilevel degenerative changes with foraminal narrowing. The CT scan indicated the reason for the test was that Employee fell down stairs. The CT scan showed multilevel degenerative changes with neural foraminal narrowing. She was diagnosed with a sprain/strain and multiple contusions.

Employee was evaluated for probable seizures at St. Francis Medical Center on January 23, 2017. According to the history, Employee's first episode occurred in May of 2016 when she felt funny while driving and pulled over. She was found with her body shaking and decreased responsiveness. Then, in September of 2016, she reportedly tripped and fell, hitting her head. This incident was followed by approximately one minute of body shaking. Then, on Christmas morning, she shook for two minutes with foaming at the mouth. Ten days prior to the appointment, she had another body shaking incident that caused her to fall. Then on January 15, 2017, she fell at church and had an episode of body shaking. Dr. Yadala recommended an MRI of the brain and an EEG. Her medications were changed and she was instructed not to operate a

---

2 The medical record from St. Francis Medical Center (See Employee Exhibit 5, file 2 of 3, p. 617) reflects that Employee gave a history of a trip in fall in September of 2017, however it is assumed this was a typographical error as the date of service on the medical record, January 23, 2017, occurred prior to September of 2017. A reasonable inference is made that Employee reported a history of trip and fall in September of 2016, which is consistent with the emergency room note from Southeast Health dated September 9, 2016.

Page 9

Employee: Brenda J. Smith

Injury No. 16-035534

vehicle or operate heavy equipment. At her follow-up appointment on March 3, 2017, Dr. Yadala noted her episodes may be psychogenic or stress related and not epileptic events.

Employee saw Dr. Scott on May 25, 2017 with complaints of back pain that started "greater than 1 year ago" that she rated at 6/10. She denied weakness in her lower extremities and reported no difficulty walking. Dr. Scott diagnosed lumbar radiculopathy and lumbago. He noted that her MRI shows multiple levels of lumbar degeneration, but that she did not currently have significant radiculopathy. He noted that, "her pathology is too severe for surgical intervention." He referred her to pain management for further conservative care.

Employee's present complaints

Employee testified that she doesn't walk much and has difficulty with steps. She testified that she can stand for 10-15 minutes maximum and can sit for 30-45 minutes. She testified that she cannot stay in the store very long and uses a cart. She testified that she does not lift more than 5 pounds. She testified that she chose her current apartment because it has a handicap ramp and parking. She testified that she uses a knee pillow at night to keep her hips in alignment to take pressure off her back and that back pain wakes her up at night. To alleviate her pain, she lays down up to 3-4 times per day. She testified that her prior back injuries eventually healed and went away, but that her current back pain has been ongoing for four years. She testified that "brain wise" she could do desk work, but that she could not sit for long periods of time. She testified that she has not looked for work because she could not give 100%.

Medical report and Testimony of Dr. Chabot

Employee returned to Dr. Chabot on May 21, 2018 for a follow-up evaluation. Employee complained of constant moderate to severe low back pain and weakness in her legs at times. She rated her pain at 8-11/10. She reported she could only stand for 10 minutes before she must sit and that she could not walk very long. She reported using Tramadol to moderate her symptoms. Dr. Chabot reviewed additional medical records, including those generated since his last evaluation on July 22, 2016. He opined that Employee has a history of chronic back pain with multi-level degeneration of her lumbar spine. He opined that when he last saw her on July 22, 2016, she exhibited no evidence of persisting functional deficits causally related to her May 17, 2016 work accident. He noted that Employee had a subsequent accident on September 9, 2016, when she fell two feet after missing a step and injured her neck, back and left leg. He also noted Employee had multiple syncopal episodes with falls. Finally, he noted that she reported to a counselor on December 29, 2016 that she injured her back again while caring for her mother.

Dr. Chabot testified that he performed a physical examination and that Employee's observed active range of motion did not correlate with his observation that she was able to sit in a chair at 90 degrees. He also testified that he observed some "giving way during the muscle strength testing, which is an inconsistency."

Dr. Chabot opined that Employee's cervical and low back complaints associated with her accident of May 17, 2016 had resolved and that her present complaints are "multi-factorial in

Page 10

Employee: Brenda J. Smith

Injury No. 16-035534

origin." He opined, "that the prevailing factor in her persisting complaints to the L-spine is her chronic pain condition to the L-spine, chronic degenerative changes, morbid obesity, h/o seizure disorder and syncopal episodes with multiple falls and not her alleged injury of 5/17/2016." He testified that Employee's diagnostic studies from prior to her accident document evidence of preexisting degenerative disease at multiple levels. He opined that she could return to her prior employment as an insurance sales person and that she will not require additional medical treatment to cure and relieve her from the effects of the May 17, 2016 accident. He opined that any treatment she received after he released her on July 22, 2016 was for conditions unrelated to her work accident. He opined that she sustained no permanent partial disability associated with her work accident. He also opined that her inconsistencies in range of motion testing and giving way on muscle testing during physical examination was suggestive of symptom magnification or her underlying psychological conditions playing a role in her subjective complaints.

Dr. Volarich evaluated Employee at the request of her attorney on September 18, 2017. Regarding the injury of May 17, 2016, Dr. Volarich diagnosed a severe lumbar contusion with strain/sprain causing aggravation of underlying degenerative disc disease and degenerative joint disease from L2 through S1, "rare" recurrent right leg paresthesia, and a cervical strain that resolved. He noted that Employee's "MRI findings were essentially unchanged from prior MRI scan of the low back from 5/21/14."

Dr. Volarich opined the accident of May 17, 2016 was the prevailing factor in causing the aforementioned diagnoses and assigned a rating of 25% of the body as a whole referable to the lumbar spine.

Under the section of his report titled "PRE-EXISTING MEDICAL CONDITIONS AND COMPLAINTS," Dr. Volarich noted that, "On 9/9/16, subsequent to her back injury, she missed a step at home, slipped and twisted her left ankle and foot. She was diagnosed with a contusion and sprain with x-ray being unremarkable."

Dr. Volarich identified the following preexisting disabilities:

- 15% PPD of the body as a whole referable to the lumbar spine due to chronic lumbar syndrome for preexisting back pain and lost motion prior to 5/17/16

- 5% PPD of the left ankle

- 15% of the body as a whole referable to the abdomen due to her gastroesophageal reflux disease causing Barrett's esophagitis

- 15% PPD of the body as a whole rated at the pulmonary system due to restrictive lung disease

Dr. Volarich recommended Employee undergo a vocational evaluation to determine if she could return to work in the open labor market. He had no objection to her attempting to return to work with the following restrictions:

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**Injury No. 16-035534**

Regarding the work accident of May 17, 2016:

- Avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to the affected basis;

- No handling of weights greater than 15 pounds on an occasional basis;

- No handling of weight overhead/away from her body and no carrying weight over long distances/uneven terrain;

- Avoid remaining in a fixed position for more than 30 minutes at a time;

- Change positions frequently to maximize comfort/rest when needed;

Regarding her spine prior to May 17, 2016:

- Perform bending, twisting, lifting, pushing, pulling, carrying, climbing, and other tasks to the affected side;

- Handle weights to the affected side with proper lifting technique;

- Handle weight overhead/away from her body and carry weight over distances/uneven terrain to the affected side;

- Maintain fixed positions to the affected side;

- Change positions frequently to maximize comfort and rest when needed.

If a vocational assessment was unable to identify a job for Employee, he stated it was his opinion that Employee is permanently and totally disabled as a result of her May 17, 2016 injury alone. He opined that the severity of the primary injury outweighed her preexisting disabilities. In support of his opinion, he noted that, "she clearly tells me had she not tripped over the branch she would still be working."

Dr. Volarich opined that Employee should continue a home exercise program for her spine daily and "should take over-the-counter analgesics as needed for discomfort." He opined that these treatments are necessary to cure and relieve the effects "of her work-related injuries."

Dr. Nagy, Claimant's primary care doctor, authored a report dated March 21, 2017, wherein he opined that her "numerous symptoms and medication side effects make it impossible for her to maintain any type of gainful employment." He identified the following symptoms: chronic fatigue, low back pain, dyspnea, cough, dizziness, generalized weakness, dysphoric mood and anxiousness. He identified medication side effects including nausea, constipation, dizziness, and sedation. He also noted that she developed a seizure disorder "over the last year" and has weekly seizures despite treatment. He noted that she is unable to drive and perform work as a result of seizures.

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**Injury No. 16-035534**

Stella Doering performed a vocational assessment of Employee at the request of Employee's attorney. She reviewed Employee's medical records and took a vocational history. She administered the Wide Range Achievement Test 4 and noted that Employee scored less than high school level performance and less than 8th grade ability in word recognition and spelling. Ms. Doering input Employee's information (including work background, limitations, restrictions) in a software program and determined there are no occupations in the Southeast Missouri area that match Employee's vocational profile. Ms. Doering provided the following vocational opinion:

> Ms. Smith is permanently and totally disabled and unable to compete in the open labor market as of 05/17/2016. The prevailing factors in the cause of Ms. Smith's permanent and total disability are her underlying, long-term spine disability that pre-existed her accident of 05/17/2016, her numerous chronic health conditions, and her disabilities that occurred as a result of the accident of 05/17/2016. Although she worked for many years with some degree of chronic back complaints and other health conditions, the disabilities caused by the 05/17/2016 accident ultimately led to a significant deterioration in her physical condition. Her work history includes two jobs that are classified as skilled, but she does not have sufficient education or training for those skills to transfer to other work even of a similar nature to what she performed. Her subsequent psychological dysfunction and possible cognitive decline compound her disability and lack of transferable skills; therefore, it unlikely that any employer in the normal course of business would consider her to be a viable candidate for any job on the open, competitive labor market.

>

> It is my opinion, therefore, that Brenda Smith is permanently and totally disabled as a result of the disabilities that resulted from her accident of 05/17/2016.

On cross-examination by the attorney for Employer-Insurer, Mr. Doering was asked about her above permanent total disability opinion as follows:

> Q. You're basically saying, it's a combination of all her problems?

>

> A. I believe it is.

Benjamin Hughes performed a Vocational Rehabilitation Review at the request of the Second Injury Fund. Mr. Hughes did not meet with or interview Employee, but instead based his

Employee: Brenda J. Smith

Injury No. 16-035534

opinions on his review of the records. He opined that based on the restrictions of Dr. Chabot, that Employee could work at the sedentary to light level. Based on the restrictions of Dr. Volarich, he opined Employee could work at the sedentary level including jobs such as alarm system monitor, security guard and information clerk. He further opined that if Employee was found to be permanently and totally disabled, "this would certainly be from the last injury alone when observing Dr. Volarich's opinion on the matter."

Based on my observations of Brenda Smith (hereafter "Employee") at hearing and my review of the medical records and reports, I find that she is a poor historian. This Court does not believe that Employee intentionally misrepresented facts in this case; however, Employee appeared easily confused during both direct and cross-examination. Employee was observed to alternate from a sitting to standing position several times during the hearing due to back discomfort. At one point during the hearing Employee leaned forward to stretch her back and verbalized, "ouch." Employee appeared to be in discomfort during the hearing.

#### Burden of Proof

"The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." Section 287.808 RSMo.

#### Issue 1: Whether the employee's injury was medically causally related to the accident

Section 287.020. RSMo provides in relevant part:

> 3. ... the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability, (emphasis in original)

Medical causation that is not a matter of common knowledge or experience must be established by scientific or medical evidence showing the relationship between the complained-of medical condition and the asserted cause of the condition. See *Bond v. Site Line Surveying*, 322 S.W.3d 165, 170 (Mo.App.2010). The issues of causation and work-relatedness are questions of fact to be decided by the Commission. See *Royal v. Advantica Restaurant Group*.

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Employee: Brenda J. Smith

Injury No. 16-035534

Inc., 194 S.W.3d 371, 376 (Mo. App. W.D. 2006); Angus v. Second Injury Fund, 328 S.W.3d 294, 299 (Mo.App.2010).

Both Drs. Chabot and Volarich agreed that the accident on May 17, 2016 was the prevailing factor in causing a lumbar contusion with sprain/strain and a cervical sprain/strain. I find that the accident on May 17, 2016 was the prevailing factor in causing a lumbar contusion with sprain/strain and a cervical sprain/strain.

Issue 2: Whether the employer is liable for additional or future medical aid

The claimant has the burden of proving not only that she sustained an accident, which arose out of and in the course of her employment, but also that there is a medical causal relationship between her accident and the injuries and the medical treatment for which she is seeking compensation. Griggs v. A. B. Chance Company, 503 S.W.2d 697 (Mo.App.1973). The standard of proof for entitlement to an allowance for future medical aid cannot be met simply by offering testimony that it is "possible" that the claimant will need future medical treatment. Modlin v. Sunmark, Inc., 699 S.W.2d 5, 7 (Mo.App.1995). The cases establish, however, that it is not necessary for the claimant to present "conclusive evidence" of the need for future medical treatment. Sifferman v. Sears Roebuck and Company, 906 S.W.2d 823, 838 (Mo. App.1995). To the contrary, numerous cases have made it clear that in order to meet their burden, claimants are required to show by a "reasonable probability" that they will need future medical treatment. Dean v. St. Lukes Hospital, 936 S.W.2d 601 (Mo.App.1997). In addition, employees must establish through competent medical evidence that the medical care requested, "flows from the accident" before Employer-Insurer is responsible. Landers v. Chrysler Corporation, 963 S.W.2d 275, (Mo.App.1997).

Dr. Chabot opined that that Employee will not require additional medical treatment to cure and relieve her from the effects of the May 17, 2016 accident. He opined that any treatment she received after he released her on July 22, 2016 was for conditions unrelated to her work accident. On the other hand, Dr. Volarich opined that Employee "should take over-the-counter analgesics as needed for discomfort" for her "work-related injuries." I find Dr. Volarich's opinion is insufficient to meet Employee's burden of proof that there is a reasonable probability she will require future medical care to cure and relieve her from the effects of the May 17, 2016 accident. I find Dr. Chabot's opinion regarding future medical care to be more credible and persuasive than that of Dr. Volarich. I find that Employee did not meet her burden of proof that she will require future medical care.

Issue 3: Whether the employer is liable for additional temporary total or temporary partial disability benefits from May 18, 2016 through July 22, 2016 in the amount of $3441.29

Total disability benefits are intended to cover healing periods and are payable until the employee is able to return to work or until the employee has reached the point where further progress is not expected. Brookman v. Henry Transportation, 924 S.W.2d 286 (Mo.App.1996). The burden of proving entitlement to temporary, total disability benefits is on the claimant. Cooper v. Medical Center of Independence, 955 S.W.2d 570, 575 (Mo.App.1997).

Page 15

Employee: Brenda J. Smith

Injury No. 16-035534

I find that Dr. Staubinger indicated Employee was unable to work when he saw her May 23, 2016, and I make a reasonable inference that she was likewise unable to work from May 18, 2016 up until the time she was evaluated by Dr. Staubinger. Employee was released to return to work with a 20-pound lifting restriction by Dr. Chabot on June 22, 2016 and Employee's job as an insurance agent did not require her to lift more than 10 pounds. It is unclear whether Employee attempted to return to work at this time or if her attempt to return to work was after Dr. Chabot placed her at maximum medical improvement on July 22, 2016. Employee testified that she attempted to return to work, but that she was physically unable and at the same time was dealing with a family tragedy. I am not persuaded Employee was physically unable to work from June 22, 2016 through July 22, 2016 due to this work accident. Employee was noncompliant with treatment during this time period and reported to Dr. Chabot that she was doing fine at her follow-up appointment July 22, 2016.

I find Employee did meet her burden of proof that she is entitled to temporary total disability benefits from May 18, 2016 through June 22, 2016 (5 1/7 weeks), the date Dr. Chabot indicated she could work within a 20-pound lifting restriction. I find Employee did not meet her burden of proof that she is entitled to temporary total disability benefits past June 22, 2016.

Employer-Insurer is ordered to pay Employee temporary total disability benefits from May 18, 2016 through June 22, 2016 in the amount of $1905.94 (5 1/7 weeks x $370.60).

Issue 4: Whether the employer is liable for permanent partial versus permanent total disability benefits

Employee bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. *Id.* at 704. Extent and percentage of disability is a finding of fact within the special province of the fact finding body, which is not bound by the medical testimony but may consider all the evidence, including the testimony of the claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. *Fogelsong v. Banquet Foods Corp.*, 526 S.W.2d 886, 892 (Mo. App. 1975).

Section 287.020.6 RSMo (2005) 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

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**Injury No. 16-035534**

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).

The following expert opinions were admitted into evidence on this issue:

- Dr. Chabot, the authorized treating doctor designated by Employer-Insurer, released Employee to full duty and opined that she could return to her prior employment as an insurance sales person.

- Dr. Volarich, Employee's independent medical evaluator, recommended a vocational evaluation, but had no objection Employee returning to work within the restrictions outlined in his report. If a vocational expert could not identify a job for Employee, he opined she was permanently and totally disabled due to the work accident alone.

- Dr. Nagy, Employee's primary care doctor, opined Employee was unable to work due to a combination of her low back pain, preexisting medical conditions, and subsequent seizure disorder.

- Stella Doering, Employee's vocational expert, opined Employee was permanently and totally disabled, but made contradictory statements regarding whether her inability to work was due to the last injury alone versus a combination of her last injury, preexisting disability, and subsequent psychological dysfunction and cognitive decline.

- Benjamin Hughes, the Second Injury Fund's vocational expert, opined that Employee remained employable in the open labor market in the sedentary level of employment when considering Dr. Volarich's restrictions and in the light to sedentary levels of employment considering Dr. Chabot's restrictions.

I am not persuaded that the accident of May 17, 2016, considered alone, resulted in permanent and total disability. First, Stella Doering's conflicting statements in her report essentially neutralize her opinion. Her cross-examination testimony clarifying her opinion that Employee's permanent and total disability is attributable to a combination of Employee's medical conditions directly contradicts Dr. Volarich's opinion and does not support a finding that the last injury alone resulted in permanent total disability.

Second, I find the opinions of Dr. Chabot, Dr. Nagy, and Benjamin Hughes more persuasive and credible than the opinions of Dr. Volarich. Both Dr. Chabot and Dr. Nagy were Employee's treating physicians and examined her on more than one occasion. Dr. Chabot also provided a more comprehensive review of Employee's medical records. Although Dr. Volarich

**Injury No. 16-035534**

acknowledged in his report that Employee missed a step at home on September 9, 2016, he failed to mention that she complained of back pain while at the emergency room following that fall. He only noted that she twisted her left ankle. Because Dr. Volarich did not acknowledge that Employee had complaints of back pain following the September 9, 2016 accident in his report, it is unknown whether he chose to ignore the complaints, if he did not see the complaints in his review of the records, or if he did not consider the complaints significant. I find this subsequent fall and emergency room visit relevant considering it occurred less than two months after Dr. Chabot documented a normal physical exam and released Employee at maximum medical improvement. This omission undermines Dr. Volarich's opinions regarding the nature and extent of Employee's disability attributable to her work accident.

Third, I find that Dr. Volarich's opinion regarding permanent total disability lacks sufficient foundation. It is undisputed that Employee had underlying degenerative changes in the lumbar spine that certainly pre-existed the work injury. There is no testimony or medical opinion in evidence that the objective findings shown on Employee's MRI changed when comparing MRIs taken before and after the May 17, 2016 work accident. In fact, Dr. Volarich acknowledges in his report that the MRI findings after the accident were essentially unchanged compared to the MRI scan of the low back from May 21, 2014. In support of his opinion on permanent total disability, Dr. Volarich states that, "she clearly tells me had she not tripped over the branch she would still be working." The fact that Employee did not return to work after her last accident is not dispositive evidence that she is permanently and totally disabled due to the last accident alone. Such logic would imply that a claimant's last injury is always the sole cause of permanent total disability. Although Employee's testimony at hearing and her statements to Dr. Volarich minimized her lumbar complaints that preexisted her work accident, her testimony is inconsistent with the documented history of chronic pain set forth in the medical histories of her treatment records, her evaluation by a neurosurgeon just five months prior to her work accident, and her application for social security disability benefits filed in 2014.

Lastly, Dr. Volarich's opinion regarding permanent total disability was not definitive. He offered an alternative opinion predicated on whether or not a vocational expert could identify a job for Employee. Considering that Mr. Hughes opined Employee could perform sedentary jobs within Dr. Volarich's restrictions and Ms. Doering clarified her opinion that Employee cannot work due to a combination of all her medical problems, Dr. Volarich's alternative opinion that the last injury would result in permanent total disability lacks probative value.

After considering all the evidence in this case, I find Employee did not meet her burden of proof that the last injury alone caused Employee to be permanently and totally disabled. I find that Employer-Insurer is not liable for permanent and total disability benefits.

After considering all the evidence, I find Employee sustained a permanent partial disability of 12% of the body as a whole referable to the lumbar spine as a result of her lumbar strain injury. I further find that Employee sustained 0% permanent partial disability referable to

Injury No. 16-035534

her cervical strain. Employer-Insurer is ordered to pay Employee 48 weeks of compensation for a total of $17,788.80 (400 x 12% BAW = 48 weeks x $370.60 = $17,788.80).

Employee's primary injury occurred after January 1, 2014; therefore, her burden of proof for a compensable claim against the Second Injury Fund is set forth in Section 287.220.3 RSMo, Supp. 2013. See *Cosby v. Treasurer of the State of Mo as Custodian of the Second Injury Fund*, No. SC 97317, 2019 WL 2588575, (Mo. banc, June 25, 2019.) The test for finding the Second Injury Fund liable for permanent total disability under Section 287.220.3 RSMo, is as follows:

1. All claims against the second injury fund for injuries occurring after January 1, 2014 and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014 shall be compensated as provided in this subsection.

1. No claims for permanent partial disability occurring after the effective date of this section shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

- a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

- i. A direct result of active military duty in any branch of the United States armed forces; or

- ii. A direct result of a compensable injury as defined in section 287.020 or

- iii. Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

- iv. A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

- b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items i, ii, iii, or iv of subparagraph a of this paragraph, results in a permanent total disability as defined under this chapter; ...

1. When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

1. Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250.

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**Injury No. 16-035534**

I find that Employee did not have any preexisting disabilities that meet the definitions of categories i or iv as set forth in Section 287.220.3 (2) (a) above.

Dr. Volarich was the only doctor to provide ratings for Employee's preexisting conditions. His opinions regarding Employee's preexisting medical conditions are uncontradicted. Based on Dr. Volarich's opinions regarding Employee's preexisting medical conditions, I find that Employee has a medically documented preexisting disability of 15% of the body as a whole referable to her lumbar spine. However, Dr. Volarich attributed this disability to chronic lumbar syndrome leading up to May 17, 2016, which presumably included her 2014 non-work related injury. Employee testified that her symptoms from her 1993 work accident completely resolved. Therefore, I find Employee's 15% permanent partial disability to the body as a whole was not limited to her compensable 1993 work accident and therefore does not meet the criteria for category ii. Further, none of the medical experts or treating doctors in this case opined that the work injury of May 17, 2016 combined with the compensable preexisting disability to result in permanent total disability.

I further find that Employee had medically documented preexisting disabilities of 15% of the body as a whole referable to the abdomen due to gastroesophageal reflux disease and 15% of the body as a whole due to restrictive lung disease. I find these preexisting medical conditions were not compensable work-related injuries. There is no evidence that Employee's gastroesophageal reflux disease or restrictive lung disease directly and significantly aggravated or accelerated Employee's May 17, 2016 work-related injury, therefore these preexisting disabilities do not meet the definition of categories ii or iii as set forth above.

I find that Employee did not meet her burden of proof for Second Injury Fund liability, therefore her claim against the Second Injury Fund is denied.

Employer-Insurer is ordered to pay Employee temporary total disability benefits from May 18, 2016 through June 22, 2016 in the amount of $1905.94 (5 1/7 weeks x $370.60). Employer-Insurer is further ordered to pay Employee 48 weeks of compensation for a total of $17,788.80 (400 x 12% BAW = 48 weeks x $370.60 = $17,788.80). Employee's claim against the Second Injury Fund is denied.

Corey Jackson, 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.

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Employee: Brenda J. Smith

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

Made by: