Brenda Comer v. Central Programs, Inc.

The Second Injury Fund urges that employee's testimony regarding her physical limitations after the November 1, 2016, primary injury supports a finding that employee's PTD is attributable solely to her primary injury. No medical or vocational expert opined that Ms. Comer is PTD because of the November 2016 injury in isolation. We affirm the ALJ's factual finding, based on the expert medical opinions and other evidence in the record as discussed in his award, that employee sustained 25\% PPD BAW related to her November 1, 2016, primary low back injury.

Consideration of Multiple Qualifying Preexisting Disabilities to Determine Second Injury Fund Liability Pursuant to § 287.220.3(2)(a)

In Treasurer of the State As Custodian of the Second Injury Fund v. Parker, (622 S.W. 3d 178 (Mo. banc 2021) the Supreme Court of Missouri held, "[A]n employee satisfies [§ 287.220.3(2)(b)] by showing the primary injury resulted in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition [§ 287.220.3(2)(a)]." Id. at 182. Because Parker clearly allows consideration of multiple qualified preexisting disabilities to meet the criteria set out in § 287.220.3(2)(a), its holding is dispositive of the Second Injury Fund's second point on appeal. The ALJ did not err in considering two qualifying preexisting disabilities in combination with disability from employee's primary injury to determine Second Injury Fund liability pursuant to $\S 287.220 .3(2)(a)$.

Qualification of Employee's Prior Left Hip Injury as a Preexisting Disability Pursuant to § 287.220.3(2)(a)a(iv)

The Second Injury Fund argues that employee's preexisting left hip injury of 25 % of the left lower extremity ( 51.75 weeks) is not a "qualified" preexisting disability pursuant to § 287.220.3.2(a)a(iv) because it was not the result of a work injury and did not constitute an injury to an opposite extremity. The Second Injury Fund argues that because employee's primary low back injury was rated at the body as a whole, a nonscheduled loss, an injury to employee's left hip does not constitute an "opposite extremity."

Based on his review of employee's medical records and her December 14, 2017, MRI, Dr. Koprivica's opined that disability flowing from employee's primary injury of November 1, 2016, resulted in radiculopathy involving her right lower extremity that manifested as a deficit to her opposite lower extremity. ${ }^{1}$ An evaluation of employee's total physical impairment resultant from the primary injury in the context of PPD to the body as a whole does not preclude this more specific finding.

Based on Dr. Koprivica's opinion, we find that employee's November 1, 2016, work related back injury included disability that involved her right lower extremity. We find that employee's right lower extremity meets the MERRIAM-WEBSTER DICTIONARY

[^0]

[^0]: ${ }^{1}$ Claimant's Exhibit 3, Transcript, 511.

Improve: Brenda Comer

f/k/a Brenda Colvin

definition of "opposite" as "being the other of a pair that are corresponding to complementary in position, function, or nature" consistent with the holding of Phelps vs. Missouri State Treasurer, at 15-16 (No. SD36998, June 25, 2021).

As noted by employer/insurer:

[Employee's] preexisting leg pain has combined with the current radicular symptoms to create a more significant disability than either considered in isolation. Further, Ms. Comer testified that the limp she has had since the 1987 injury has gotten worse and more painful since November 1, 2016. Her back and left hip hurt in conjunction with each other, which is why Dr. Koprivica opined her back pain is worse than it would have been if she did not have left hip pain and an altered gait. The hip shattered in the 1987 injury is directly adjacent to the lumbar spine where the 2016 work injury occurred. Thus, this is not an unrelated accident location but one that actively aggravates the subsequent work injury in numerous ways. ${ }^{2}$

The Second Injury Fund submitted no expert medical evidence that contradicted the opinions cited by and relied upon by the administrative law judge, including the medical opinion set out in Dr. Koprivica's November 13, 2019, addendum report.

Based on the above-described expert medical evidence in the record and the employee's credible testimony, we affirm the ALJ's finding that the employee's preexisting 25\% PPD of the lower left extremity at the 207 week-level constituted a qualified preexisting disability under $\S 287.220 .3 .2$. because: 1) it exceeded fifty weeks of disability; 2) employee's primary back injury involved disability to her opposite, right lower extremity; and 3) employee's preexisting left hip disability directly and significantly aggravated or accelerated her subsequent work-related back injury.

We affirm and adopt the award of the ALJ as supplemented herein.

We approve and affirm the ALJ's allowance of attorney's fee herein as being fair and reasonable.

The award and decision of Administrative Law Judge Ryan S. Asbridge is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

[^0]

[^0]: ${ }^{2}$ Employer and Insurer's Responsive Brief at 10, Brenda Comer f/k/a Brenda Colvin v. Central Programs, Inc., Missouri Employers Mutual Ins. Co. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Inj. No. 16-085212, (LIRC appeal from Final Award of Administrative Law Judge Ryan S. Asbridge).

- 5 -

Given at Jefferson City, State of Missouri, this ______ 11th ______ day of August 2021.

I have reviewed and considered all of the competent and substantial evidence in the record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I concur in the majority's supplemental findings relating to the nature and extent of disability attributable to employee's primary injury and consideration of employee's prior left hip injury as a qualifying preexisting disability pursuant to $\S 287.220 .3(2)$ (a)a(iv).

With respect to the majority's discussion of consideration of multiple preexisting disabilities to determine Second Injury Fund liability under § 287.220.3(2)(a) in light of Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker, (No. SC98704, Mo. Banc, April 20, 2021), I would affirm the administrative law judge's award as written.

Shalonn K. Curls

Shalonn K. Curls, Member

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: November 1, 2016
5. State location where accident occurred or occupational disease was contracted: Bethany, Harrison County, 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
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of employment, Employee was lifting a conveyor track connector, bent over and reaching out, to connect it to a delivery vehicle.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

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

1. Nature and extent of any permanent disability: 25% permanent partial disability of the body as a whole payable by the employer and permanent total disability as to the Second Injury Fund

1. Compensation paid to date for temporary disability: $9,163.90 in temporary total disability benefits.

1. Value of temporary total disability benefits not paid by employer/insurer: $0

1. Value necessary medical aid paid to date by employer/insurer: $43,110.95

1. Value necessary medical aid not furnished by employer/insurer: 5,992.06

1. Employee's average weekly wages: 436.54

1. Weekly compensation rate: $291.03 for TTD/PTD and PPD

1. Method wages computation: Stipulation of the parties

COMPENSATION PAYABLE

1. Employer shall immediately pay Ms. Comer (Colvin) permanent partial disability benefits in the amount of $29,103.00 (25% of the body as a whole at the 400 week level X $291.03 = 29,103.00) beginning July 22, 2017 through June 22, 2019, for 100 weeks, plus 5,992.06 in necessary medical aid not furnished by Employer/Insurer for a total payment to Ms. Comer of 35,095.06.

1. The Second Injury Fund (SIF) liability is 10,884.52 for the period of 37.4 weeks beginning June 23, 2019 and ending March 11, 2020 and permanent total disability benefits in the amount of $291.03 per week from March 12, 2020 onward for the remainder of employee's lifetime.

1. Future requirements awarded: None.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Stephen Nordyke, Employee's attorney, for necessary legal services rendered.

Page 2

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on March 11, 2020. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about April 10, 2020.

The employee, Ms. Comer (Colvin) ("Employee" or "Claimant") appeared personally and through her attorney, Stephen Nordyke. Central Programs, Inc. ("Employer") appeared through its attorney Bruce Levine. The Treasurer of the State of Missouri as Custodian of the Second Injury Fund (Fund) appeared through Assistant Attorneys General Candace Cole and Ashley Grace.

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

1. That on November 1, 2016, Central Programs, Inc. was an employer operating under and subject to Missouri Workers' Compensation Law.
2. That Missouri Employers Mutual Insurance Company fully insured the employer's liability.
3. That on November 1, 2016, Brenda S. Comer was an employee of Central Programs, Inc.
4. That on November 1, 2016, claimant was working in Bethany, Missouri and under the Missouri Workers' Compensation Law.
5. Employee and Employer stipulate that the Employee sustained an injury by accident arising out of and in the course and scope of her employment on November 1, 2016. The Second Injury Fund did not stipulate claimant sustained injury arising out of and in the course and scope of her employment on November 1, 2016.
6. That jurisdiction before the Missouri Division of Workers' Compensation is proper.
7. That the employee provided the employer with timely notice of the injury and filed a claim for compensation within the time prescribed by law.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

1. That employee's average weekly wage on the date of injury was $\ 436.54, resulting in a compensation rate of $\ 291.03 for all benefits.
2. That the employer/insurer paid $\ 9,163.90 for temporary total disability and $\ 43,110.95 for medical treatment.
3. That Claimant reached maximum medical improvement on July 21, 2017.

1. Whether the alleged accident caused the disability the employee claims.
2. Whether the employee suffered any disability and, if so, the nature and extent of the employee's disability and whether the employee is permanently and totally disabled.
3. Whether the Second Injury Fund is liable to Employee.
4. Whether the employer must reimburse the employee for medical expenses.
5. Whether employer must provide the employee with additional medical care.

Claimant Brenda Comer, known as Brenda Colvin at the time of the accident, testified at the hearing in support of her claim. In addition, Claimant offered for admission the following exhibits:

Exhibit 1 - IME report of P. Brent Koprivica, M.D. dated 4/16/2018 and medical records reviewed by Dr. Koprivica;

Exhibit 2 - Stipulation for Compromise Settlement for Injury Dated 12/6/2002;

Exhibit 3 - Second report of P. Brent Koprivica, M.D., Addendum to IME, Dated 11/13/2019;

Exhibit 4 - Transcript of Deposition of Michael J. Dreiling taken on 02/21/2020 with Exhibits;

Exhibit 5 - Select Physical Therapy - Report of Functional Capacity Evaluation performed on 10/03/2017;

Exhibit 6 - Transcript of Deposition of Brenda Colvin taken on 02/28/2018;

Exhibit 7 - Transcript of Deposition of Brenda Colvin taken on 02/04/2019;

Exhibit 8 - Letter from Attorney for Claimant to Missouri Employers Mutual Insurance Company Requesting Additional Medical Treatment dated 08/17/2017;

Exhibit 9 - Letter from Attorney for Claimant to Attorney for Insurer/Employer notifying intent to seek reimbursement for medical treatment dated 11/01/2017;

Exhibit 10 - Harrison County Community Hospital Medical Billing of $\ 605.35 for services rendered on $11 / 13 / 2017;

Exhibit 11 - Harrison County Community Hospital Medical Billing of \ 3,651.30 for services rendered on $12 / 14 / 2017;

Exhibit 12 - Harrison County Community Hospital Medical Billing of \ 1,735.41 for services rendered on $12 / 18 / 2017$;

Exhibit 13 - Notes of Tom Karrow.

The exhibits were received and admitted into evidence.

The exhibits were received and admitted into evidence. The Second Injury Fund did not offer any additional exhibits. 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.

At the hearing on March 11, 2020 Ms. Brenda Comer, known as Brenda Colvin at the time of the accident, testified on her own behalf. Her testimony and the exhibits reflect that Ms. Comer ("claimant" or "Ms. Colvin") changed her name after she divorced her husband in 2019 from Brenda Colvin to Brenda Comer. She was 67 years old at the time of the hearing and was born on August 10, 1952. Ms. Comer completed high school in 1970. After completing high school, she obtained no further formal training or education.

Between high school and the accident in this case, Ms. Comer worked several places. The employer, Central Programs, Inc. was her last employer. Ms. Comer started working with Central Programs ("Employer" or "Central Programs") in 2001. She testified her job changed as the company grew between 2001 and 2016. Ms. Comer had to convince Central Programs to hire her in 2001. Employer was reluctant to hire her because of a significant limp that resulted from a serious prior injury to her left leg.

For Central Programs, Ms. Comer worked in picking, taking orders and boxing them. She also helped with shipping. At one point, she received a promotion to be a team leader. As a team leader, she supervised two to three people on any given day. She would instruct people in her supervision what activities to perform. She would also load books onto a pallet.

Ms. Comer described her work with Central Programs as physical labor in part. After her promotion and as of 2016, she spent 35 to 40 percent of the time working on a computer entering data. She testified to having no difficulty working on a computer or being comfortable around a computer.

In addition, Claimant checked on back stock. She described this as also 35 percent of her daily work. It was physical work and would bother her back and left leg prior to November 1, 2016. If she worked on back stock, her back would get to hurting.

On November 1, 2016, Claimant went to a track in the warehouse ready to ship out books. It was a track that would connect to a delivery vehicle. Ms. Comer picked up the track to connect it to the back of the semi-trailer. On this track, boxes would roll down. They typically weighed 20 to 30 pounds. On November 1, 2016, Ms. Comer was reaching over to pick up the track and felt pain in her low back. She described it like being shocked. After resting for a moment, she got into the truck to continue work but realized she could not do that.

In moving the track, Ms. Comer moved it approximately two feet with her arms fully extended. She had lifted the track up to her waist. She bent over approximately eight to ten inches to do this. When doing this, she felt pain in the low back as she connected the track to a conveyer.

Due to Ms. Comer's pain complaints, the employer contacted an ambulance. The company had a wheelchair. Co-workers walked her to the wheelchair, sat her in it, and waited until EMTs arrived. The EMTs then took her to the hospital.

At the hospital, Ms. Comer received a shot for pain. She is not aware of the diagnosis she received at the hospital. The records reflect that she had a compression fracture of a thoracic spine vertebra and two bulging discs in the lumbar spine. Dr. Dean then examined Ms. Comer. He noted that she had high blood pressure. He prescribed pain reliever. A CT scan confirmed an acute fracture of one of her thoracic spine vertebra. He recommended she consider vertebroplasty. Ms. Comer had undergone a prior vertebroplasty procedure for a thoracic spine injury and was therefore familiar with the procedure. She had two thoracic spine fractures prior to November 1, 2016.

After her employer reported the injury to its insurer, Ms. Comer saw Alexander Bailey, M.D. Approximately one month after the accident on November 1, 2016, she went to the emergency room for pain that affected her low back. Ms. Comer described that the pain after the incident started in her low back but then travelled up to the mid back. She described the mid back pain as the worst of her symptoms. The mid back is the same location where she had multiple prior injuries. Notably, Ms. Comer also complained of pain in the left leg and knee. The prior leg injury, which almost kept Central Programs from hiring her, also involved the left leg.

Initially, Dr. Bailey put Ms. Comer in a metal brace with a Velcro fastener. She wore this brace during all waking hours for approximately four to five months. Dr. Bailey ordered an MRI of the claimant's mid and low back. It revealed two thoracic spine compression fractures at T-10 and T-12. Dr. Bailey confirmed this diagnosis. He referred Ms. Colvin to a neurosurgeon, Norman Bamber, M.D. Dr. Bamber ultimately performed a kyphoplasty on Ms. Colvin's thoracic spine. Claimant testified that the kyphoplasty provided some relief for the back pain but not a significant amount. She stated the pain in her mid back was not as sharp as it had been before the kyphoplasty.

At the hearing, Claimant described the pain in her mid back being approximately 30 percent better since November 1, 2016. After the accident, Ms. Comer testified she attempted to perform housework or things with her husband but struggled to perform daily activities.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

Following the kyphoplasty with Dr. Bamber, Ms. Comer returned to see Dr. Bailey. She was still having pain. Dr. Bailey discussed pain medication or an injection with Ms. Comer. However, Dr. Bailey declined to offer any further pain medication. He indicated there was nothing more he could do for her.

Since being released from care by Dr. Bailey, Ms. Comer has seen Dr. Dean. He follows her for blood pressure. Ms. Comer testified that in her opinion her current elevated blood pressure is related to the accident. She described her blood pressure increasing as her pain increases. In his records, Dr. Dean does not relate high blood pressure to the accident. Likewise, claimant's medical expert, Dr. Koprivica does not attribute Ms. Comer's high blood pressure to the accident. Dr. Dean also provides Ms. Comer with a prescription for Percocet.

After Dr. Bailey released claimant from his care with the recommendation she wean off narcotic medication, Ms. Comer saw Dr. Jones in 2017 and 2018. He sent her for MRIs of the mid and low back. According to Dr. Jones and Dr. Koprivica, an MRI of claimant's low back in late 2017, revealed improvement in the lumbar spine since she had an MRI ordered by Dr. Bailey.

At hearing, Claimant identified medical bills totaling $5,992.06 for treatment provided by Dr. Dean and Dr. Jones which Employer did not authorize. She introduced into evidence two letters in 2017 requesting additional authorized treatment. She testified the employer did not provide any further treatment. The additional treatment reflected in the medical bills submitted by claimant included trigger point injections, physical therapy, and an additional MRI. Claimant testified the additional treatment provided her with no relief and was unhelpful.

Prior to releasing her from his care, Dr. Bailey ordered a functional capacity evaluation. Ms. Comer gave her best effort during the evaluation. She stated that she felt pain go up to ten out of ten while performing the functional capacity evaluation ("FCE"). The FCE took place on October 3, 2017. It had originally been scheduled in July 2017 but the therapist delayed it due to claimant having uncontrolled high blood pressure. Claimant informed the physical therapist administering the FCE that she began taking medicine for high blood pressure the day before the October 3, 2017 FCE.

According to the FCE report, the physical therapist determined that Ms. Comer provided valid and consistent effort. She demonstrated the ability to function in the Sedentary Physical Demand Category as defined by the US Department of Labor. The FCE reflects Claimant demonstrated the ability to occasionally lift up to 12.5 pounds from 8 inches to her waist, 2.5 pounds from her waist to her shoulder, carrying up to 5 pounds, and pushing up to 10 pounds. The FCE identified Ms. Comer with range of motion deficits of the spine and shoulder.

Ms. Comer testified that currently at worst her pain will get to ten out of ten. The average is five to six out of ten. She indicated pain will increase if she sits too long or walks too much. Ms. Comer further testified that at some point during every week her pain will get to ten out of ten. The lowest it gets is four out of ten.

Dr. Dean prescribes Percocet for Ms. Comer. She consumes two to three a day. Some days she only takes two, but most days takes three. She takes a Percocet approximately every eight hours.

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

According to Ms. Comer, her low back bothers her when she sleeps. Her low back pain is worst in the morning. She described having numbness in the right foot and two of the toes on the right foot. Ms. Comer described having pain in the mid back below the bra line on the left side as if something were poking her. This is a burning and aching pain. She indicated she feels this pain when raising her arms up or washing her hair.

Currently, Ms. Comer does not vacuum or dust. She does not mop. She attributed this to pain. During the FCE, however, Ms. Comer reported to the therapist that she is independent with activities of daily living, including light activities around the house like doing dishes if she keeps her body supported. She further reported doing light activities at home with frequent rests and positional changes.

Following the FCE, Ms. Comer returned to Central Programs. Employer offered her work that involved only sit-down work. Claimant worked this sit-down job for four hours a day for only one week before abandoning it. She testified her mid back hurt too much to continue the sedentary job.

Ms. Comer testified that she believes she has a high tolerance for pain. In support of this, she noted that she completely shattered the ball of her left hip in 1987 in a motorcycle accident. She sustained a significant compound fracture above the left knee but that affected the entire leg. Because of the 1987 injury to the left hip and leg, Ms. Comer has 15 screws and a plate in the left leg from the knee to her hip. She was off work for two years because of the motorcycle crash.

The motorcycle accident caused claimant to limp and she would get tired as a day progressed. After the two-year period when she returned to work, there was no time where she did not have a limp. Ms. Comer testified that she always worked with pain in the left hip because of that accident and simply worked through the pain.

However, after Claimant shattered her left hip in 1987, she could not sleep on her left side. She stopped fishing from a boat because sitting in the boat made the pain in her shattered left hip worse. Further, she testified in deposition that her shattered left hip would hurt when she performed cleaning at the nursing home. She felt she had to work differently than the other housekeepers to account for this.

Another injury that claimant sustained prior to November 2016 occurred in 2006. Ms. Comer sustained an injury at home in May 2006. She was lifting a mantle when she felt pain in her mid back. This resulted in a compression fracture of her thoracic spine at the T-8 level. Accordingly, Ms. Comer underwent T-8 vertebroplasty in 2006.

In addition, in 2011, Ms. Comer sustained yet another thoracic vertebral fracture, this time to the T-6 level. She had ongoing aches and pains depending on what she did at work or home. Ms. Comer testified that with respect to back before November 1, 2016, she had pain in the mid back but learned to work with the pain. Because of the mid back pain prior to November 1, 2016, she had to pace herself to work through the mid back pain as well as pain in the left hip. She had a burning type pain in the mid back before November 1, 2016.

As of the date of the hearing, Ms. Comer described most days beginning at 5:30 or 6:00 a.m. She will wake up, go to the bathroom, walk around her home, make coffee, and then

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

watch TV. She will read a bit. She will eat cereal. Ms. Comer will clean up and can take care of her own personal hygiene needs. She does not shower every day. If weather permits, she indicates she will go for a walk outside in the morning. For lunch, Ms. Comer will make a meal and then take a short nap in the afternoon. Afterwards, Ms. Comer will watch additional TV before going to bed at approximately 8:00 p.m. each evening.

Ms. Comer testified that she used to hunt and fish with her husband. She has not done so since they divorced in 2019. Likewise, she did not purchase hunting or fishing licenses in 2019. She did hunt and fish in 2016, 2017 and 2018. This included shooting a buck from the porch of her home in 2017. Claimant testified to being unable to sit in a fishing boat for long periods prior to November 2016. It would make her left leg and hip hurt too much if she sat in a fishing boat too long. Records reflect that Claimant, in 2017 and 2018, submitted 19 licenses to the Missouri Department of Natural Resources for deer hunting, turkey hunting, bow hunting, and fishing.

Before working for Central Programs beginning in 2001, Claimant worked in housekeeping, in the restaurant service industry, and as a bartender. At one point, she also drove a school bus part-time. Ms. Comer's personal belief is that she cannot perform her past jobs or any new ones. She attributes this to having to lay down if her pain gets too high. She currently receives $944.00 in Social Security Retirement. She did not apply for nor has ever received Social Security Disability.

Ms. Comer described her most significant symptom as pain in the mid back. She described it as pain all over the mid back. She could not attribute mid back pain to any single mid back or thoracic level. On cross-examination, Ms. Comer agreed that she had pain in her back and left hip prior to November 1, 2016. She agreed the pain was to a lesser extent than she currently encounters. While her sleeping pattern is worse now, she confirmed having sleeping issues prior to November 2016. In addition, Claimant agreed that the issues in her back prior to November 2016 included a fracture at T-8, which resulted in mid back pain. This mid back pain continued through November 2016. Further, Ms. Comer had a 2011 injury also to the thoracic spine. This resulted in vertebroplasty to the T-7 thoracic level and pain in that area. Ms. Comer testified the pain in that area continued until November 2016.

Prior to November 1, 2016, Ms. Comer had no work restrictions. She testified that she did have pain in the mid back, low back, and left leg even without restrictions. However, she worked through that pain. She testified that after getting a promotion in 2011, she had a job that included less lifting and less standing on her feet, which she felt to be beneficial to her. It allowed her to sit and rest throughout the day, which helped alleviate mid back, low back, and left leg pain.

Ms. Comer testified that she never fully recovered after shattering her left hip in 1987. Even though she had no work restrictions, she walked with a limp from 1987 to 2016. She testified that her limp has gotten worse and is more painful since November 2016. She had to account for left hip and leg pain in jobs she worked before 2016. Nevertheless, she is able to climb into a pickup truck or a Jeep. She drove a pickup truck in 2017 and currently drives a Jeep.

When asked at the hearing if she could differentiate between the pain in her mid back that began in 2006, that is related to the 2011 injury, or that is related to the 2016 accident, Ms. Colvin could not. She testified the entire area hurts. It hurt before November 2016 and hurts worse now.

Page 9

Injury No: 16-085212

Claimant takes Percocet or Oxycodone for mid back pain. She states it helps with pain related to the November 2016 accident but also with pain she had prior to November 2016. Before November 2016, she regularly took over-the-counter Bayer back pain or other anti-inflammatories and pain relievers to address mid back and left leg pain. Ms. Comer agreed that Dr. Koprivica is the only physician who has indicated she cannot work. Dr. Bailey returned the claimant to work at sedentary duty. Neither Dr. Dean nor Dr. Jones have indicated to Ms. Comer that she should not work.

Claimant testified that she worked her garden through 2016 but has not since November 1, 2016. Similarly, she has cut back on cleaning and floor scrubbing since then. Ms. Comer confirmed working full-time as a restaurant manager after being off work for two years for the shattered left hip. Further, Ms. Comer worked two jobs in 1998, including one as a bartender. The other involved cleaning rooms. Ms. Comer indicated that she performed 40 hours of work per week cleaning nursing homes in addition to working as a bartender. As of the date of the hearing, Ms. Comer testified she was not seeking treatment for the shattered left hip.

Prior to November 1, 2016, Ms. Comer worked full-time for Employer and full duty. Notwithstanding the frequent pain in her mid back and left leg limp and the need to pace herself, Ms. Comer worked without restrictions for Employer prior to November 1, 2016, although she did begin work in 2011 that was lighter than she had previously worked. Nevertheless, she received frequent raises.

Ms. Comer testified that since 2006 she has had difficulty lying on her back while sleeping. Pain in her back will wake her up. Pain in her back could cause her to lose sleep if she tries to sleep on her back. She frequently went to work tired before November 1, 2016 because of sleep problems. Moreover, as noted above, pain in the left leg from the shattered hip makes it difficult to sleep on her left side.

Adam Bullard testified at the hearing on behalf of the employer. He is an investigator at G4S Compliance and Investigations. Mr. Bullard has worked for G4S for several years as a licensed investigator. The employer retained him to place the claimant under surveillance.

Mr. Bullard saw the claimant on July 21, 2017. He was able to observe Ms. Comer getting in and out of a pickup truck she was driving. He did not observe her having any difficulty doing that. He observed Ms. Comer walking without assistive devices on July 21, 2017. He did note that her gait appeared to be somewhat guarded. He did not observe Ms. Comer being in physical distress on July 21, 2017.

Mr. Bullard followed Ms. Comer into a restaurant. It was a Chinese restaurant with a lunch buffet. He described Ms. Comer as getting up to make several trips to the buffet for lunch. He sat behind Ms. Comer while she ate her lunch and was unable to observe her facial expressions. He did not identify her as having any difficulty getting around the restaurant. Likewise, he did not observe Ms. Comer grimacing or clutching her back.

On July 21, 2017, Mr. Bullard observed Ms. Comer driving. She appeared to have no difficulty driving. For example, her vehicle was not swerving or going at abnormal speed. He

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

observed her drive to Home Depot with a male companion. She smoked while the other individual loaded materials into the back of claimant's Silverado pickup truck.

Mr. Bullard noted on cross-examination that the state of Missouri requires investigators to have a license and to testify in court. Mr. Bullard is fully licensed in that regard. He observed the claimant for approximately 4 hours in July 2017. Of this time, he captured approximately 30 minutes of video. Mr. Bullard did not observe Ms. Comer going up stairs or see her stumble at any time. She used the running board of her vehicle to climb into her pickup truck.

Mr. Bullard identified the claimant at the hearing as the individual on the video he captured on July 21, 2017. He identified the video and his surveillance report as being true and accurate copies of these documents. According to the investigation report he authored, employer's Exhibit E, in July 2017 Mr. Bullard observed the claimant as she "walked, smoked, ate, conversed, carried a plate of food, drove, stepped up/down to enter and exit a truck."

Brent Koprivica, M.D.

For a medical opinion, the claimant presented two reports from P. Brent Koprivica, M.D. Dr. Koprivica is not an orthopedic surgeon. Rather, he completed a 3-year residency in emergency medicine. He subsequently became board-certified in emergency medicine, although has allowed that certification to lapse. Dr. Koprivica has a master's in public health. He is board-certified in preventative medicine and occupational medicine. He is licensed to practice medicine in both Missouri and Kansas.

Dr. Koprivica did not provide treatment to Ms. Comer. Rather, he conducted an evaluation of her on April 16, 2018. See Exhibit 1. Dr. Koprivica took a history from the claimant on April 16, 2018. He noted that she had a high school diploma but no subsequent formal education, vocational training, or certifications. He noted the claimant's work history. It included work on a family farm in the 1970s, work as a bus driver in the mid to late 1970s, and at a department store in Bethany, Missouri until the early 1980s.

In addition, Dr. Koprivica noted that claimant worked as a bartender for 3 years in the 1980s in Missouri before moving to Oklahoma. She was the day shift manager at a restaurant in Oklahoma for 2 years. Further, Ms. Comer worked as a bartender after returning to Bethany in the early 1990s for 5 years. She also worked in housekeeping for a nursing facility in Bethany. In the late 1990s to early 2000s, she moved to Oregon where she worked in housekeeping. In reviewing records of injuries prior to November 1, 2016, he noted "significant structural injuries of the thoracic spine at multiple levels." He also further noted that Claimant was clear that these significant structural injuries to the thoracic spine were the source of ongoing low back and mid back problems prior to November 1, 2016.

More specifically, Dr. Koprivica wrote that among other things, the claimant sustained a thoracic spine injury on May 1, 2006 pulling a heavy pallet. This led the physicians treating Ms. Comer at that time to diagnose a thoracic spine compression fracture at the T-8 level. Ms. Comer missed time from work because of this injury. She returned to work after treating for the injury but noted to Dr. Koprivica that she continued to have ongoing complaints of low back pain. Further, Dr. Koprivica noted that Ms. Comer sustained an injury at home in 2011. An MRI of her thoracic spine on April 2, 2011 revealed an acute thoracic fracture at the T-7 level. She

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

reported that, after treating for this second thoracic spine fracture prior to November 1, 2016, that her back complaints affected her capabilities.

Accordingly, for the various thoracic spine fractures that Ms. Comer encountered prior to November 1, 2016, based on the significant structural damage, Dr. Koprivica assessed 15 percent permanent partial disability of the whole body.

In addition, Dr. Koprivica's report is consistent with Ms. Comer's testimony that she also sustained significant injury to the left lower upper extremity because of the motor vehicle accident in 1987. He wrote that the motorcycle accident caused pelvic trauma and a perineal puncture with related bowel perforation. Ms. Comer recovered from the bowel perforation. However, she had an open, exposed fracture of the left hip. This required internal fixation in the left hip, which remains in her left hip to this day. She also sustained an open, exposed injury to the left distal femur as part of the motor vehicle accident. This also required internal hardware that remains in her left leg. Further, physicians harvested a portion of the claimant's left iliac crest to use as a graft with the internal fixation. Ms. Comer required 2 years to recover from this motorcycle accident.

After recovering from the accident, Ms. Comer had ongoing issues with the left hip. Per Dr. Koprivica, she had difficulty with constant squatting, crawling, or kneeling. He felt she was fortunate to find subsequent employment with Employer that did not involve squatting, crawling, or kneeling or the need to climb on ladders.

Dr. Koprivica diagnosed the injury from the 1987 motorcycle accident as left hip fracture with ongoing residual chronic left hip pain. He assigned 25 percent permanent partial disability of the left leg at the level of the hip.

Although not a vocational counselor, Dr. Koprivica suggested the claimant is permanently and totally disabled. In the April 16, 2018 report, he suggested this is due to a combination of the injury sustained on November 1, 2016 along with preexisting conditions. In Exhibit 3, Dr. Koprivica noted having received a report from a vocational counselor, Mike Dreiling. He wrote that in reviewing Mr. Dreiling's report, Mr. Dreiling opined that Ms. Comer is totally disabled. Dr. Koprivica adopted that vocational opinion of total disability.

Further, Dr. Koprivica again expressed that Claimant is not permanently and totally disabled in his opinion because of the November 1, 2016 accident viewed in isolation. Rather, he reiterated his rating of 30 percent of the whole body attributable to the November 1, 2016 accident. Dr. Koprivica expressed in Exhibit 3 that when disabilities preexisting November 1, 2016 are factored into the analysis, then the claimant is permanently and totally disabled as defined by 287.220.3 RSMo.

Specifically, he cited the 1987 motorcycle accident that caused significant injury to the claimant's left hip, injuries that she described at the hearing as a "shattered" left hip. Further, he noted that the claimant had significant preexisting mid back injuries due to the significant structural injuries he identified in April 2018. These mid back injuries are the same area where the claimant sustained injury in November 1, 2016. He assigned an additional 15 percent permanent partial disability for thoracic spine injuries.

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

Accordingly, Dr. Koprivica opined that when analyzing the November 1, 2016 injury and factoring in the claimant's previously shattered left hip and previous fractures to the same portion of her spine, these conditions combine to render Ms. Comer totally disabled.

Dr. Koprivica recommended that Ms. Comer consider future medical treatment to further relieve the effects of the November 1, 2016 accident. He described the treatment he recommends as pain management. He deferred any specific pain management treatment to a pain management specialist. He references potential use of a spinal cord stimulator. Notably, Dr. Koprivica does not reference ongoing use of Percocet.

Finally, Dr. Koprivica reviewed records of medical treatment that Claimant sought from 2017 to 2018 after being released by Dr. Bailey. He felt the treatment reflected in the medical bills are reasonable and necessary and that the billed amounts were reasonable and customary.

Alexander Bailey, M.D.

Alexander Bailey, M.D., provided treatment to Ms. Comer. The employer submitted Dr. Bailey's CV, Exhibit A, and a narrative report that included his disability rating, Exhibit B. Dr. Bailey is a board-certified orthopedic surgeon. He underwent specialty training in orthopedics and a fellowship for spine treatment. According to his CV, his research includes studying spinal fusions, annular repair of herniated discs, and the use of spacers for treating degenerative disc disease. Dr. Bailey has an adult spinal surgical practice, Premier Spine, which he has run since 2012. Prior to that, he worked as an associate spinal surgeon for Advanced Spine and Orthopedic Specialists. Dr. Bailey is licensed to practice medicine in both Missouri and Kansas.

Dr. Bailey treated the claimant for the effects of the November 1, 2016 accident. He noted that at the initial evaluation Ms. Comer was a 64-year-old patient he was seeing for a work injury occurring in November 2016. He noted that at the first visit Ms. Comer reported a prior history of back injury with fracture in the thoracic spine in 2011 for which she underwent vertebral augmentation. He noted prior vertebroplasty at T7 as well as the development of Schmorl nodes at T8 and T12.

Dr. Bailey personally reviewed MRI films of the claimant's back. He identified a 30 percent compression fracture at the T12 level. He felt this fracture related to the November 1, 2016 accident. He felt the claimant also had a systemic issue for which she should undergo endocrinology evaluation. However, Ms. Comer testified she never did seek that type of evaluation.

Dr. Bailey initially treated the claimant with a brace. He hoped this would promote healing of the fracture. After 5 months of this conservative management, Ms. Comer continued to express ongoing pain complaints. Accordingly, he recommended a second opinion. Dr. Bamber provided the second opinion.

In Exhibit B, Dr. Bailey noted that throughout his treatment of Ms. Comer, he recommended avoiding the use of narcotics. However, Ms. Comer demanded such medication throughout the course of her treatment.

Dr. Bailey noted that between the use of a brace and the vertebral augmentation performed by Dr. Bamber, Ms. Comer reported little relief. Accordingly, when he last saw Ms. Comer on

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

July 21, 2017, he had no further treatment to offer Ms. Comer for her general pain complaints. He did, however, recommend that she wean off narcotics. He placed Ms. Comer at Maximum Medical Improvement ("MMI") on July 21, 2017.

Because he could not recommend any further or additional treatment, Dr. Bailey ordered a Functional Capacity Evaluation. Upon analyzing the Functional Capacity Evaluation, Dr. Bailey noted that the results were valid and consistent. The results of the evaluation placed the claimant in sedentary duty status. Accordingly, Dr. Bailey adopted that status and the restrictions reflected in the Functional Capacity Evaluation as his restrictions.

Based on his treatment of the claimant, including reviews of X-rays, MRIs, physical examination in his expertise, Dr. Bailey noted the claimant has a variety of conditions that include an old compression fracture treated with vertebral augmentation, a new compression fracture treated with a brace, and a post-alternative vertebral augmentation. After factoring in the existence of Schmorl's nodes, Dr. Bailey assessed the claimant with 10 percent permanent partial disability of the body as a whole. While he noted the preexisting issues, Dr. Bailey assessed this 10 percent solely as a result of the November 1, 2016 accident.

Dr. Bailey did not opine that claimant is totally disabled. Dr. Bailey does not state that the claimant cannot return to full, 40 hour a week work within the restrictions set forth in the Functional Capacity Evaluation. Dr. Bailey did not recommend any future or further medical treatment. He wrote, "no further care or treatment should be directed towards her thoracolumbar spinal condition. I actually think further interventional treatment or ongoing attention through medication management is causing more harm than benefit." Exhibit B at 2.

Michael Dreiling

Michael Dreiling testified by deposition on behalf of the claimant. See Exhibit 4. Mr. Dreiling is a vocational rehabilitation consultant. He has performed that job for 45 years. As a part of this job, on occasion he evaluates individuals with disabilities to determine their ability to be gainfully employed.

Per his CV and testimony, Mr. Dreiling is a diplomat with the American Board of Vocational Experts. He was a vocational expert with the Social Security Administration from 1984 through 2001. He previously provided employers with return to work programs and provided employers with assistance with implementing the Americans with Disabilities Act. He has performed approximately 15,000 vocational evaluations in his career. He is a licensed and certified vendor for vocational rehabilitation in the State of Kansas.

Mr. Dreiling testified to meeting Ms. Comer on October 24, 2018. He took a history from her as set forth in his report. According to Mr. Dreiling, Ms. Comer drove herself to this evaluation. The drive was approximately 100 miles. Ms. Comer reported stopping a few times to rest during that drive.

Mr. Dreiling's assessment lasted for approximately 1 1/2 hours. He noted reviewing the reports from Dr. Bailey, particularly the one that placed Ms. Comer at sedentary work. According to Mr. Dreiling, the Dictionary of Occupational Titles defines sedentary work as an occupation in which a person is primarily seated for the majority of their workday. Lifting and carrying should

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

not exceed 10 pounds. He described that approximately 10 percent of the labor market is composed of sedentary work positions. However, Mr. Dreiling noted that, of this 10 percent, many of these sedentary jobs are in skilled occupations. In addition to the reports of Dr. Bailey, Mr. Dreiling reviewed the reports of Dr. Koprivica from April 2018 and November 2019. He factored in the restrictions suggested by Dr. Koprivica in assessing Claimant's employability.

To further assess her employability, he took a history from Ms. Comer, which included that she was a high school graduate with basic understanding of a personal computer and data entry. Further, he and Ms. Comer discussed the significant injury to her left leg in 1987 and injuries she sustained to the back in the 2000s that affect her employability.

With respect to the employment at Central Programs, Ms. Comer reported to Mr. Dreiling that Employer was initially reluctant to hire Ms. Comer. This was because of the significant prior left leg injury. Mr. Dreiling also noted Ms. Comer's work history, which was consistent with her testimony at the hearing, involved work in nursing homes as a housekeeper, work as a server in restaurants, her work as a bartender, and her supervisory work. He also noted the work the claimant performed for Central Programs starting in 2001.

Claimant told Mr. Dreiling that she felt she needed to be in a recliner for a large percentage of each day during working hours. However, that is not a restriction issued or recommended by any physician, including Dr. Koprivica. Mr. Dreiling did not administer any vocational testing to Ms. Comer.

Ultimately, Mr. Dreiling testified that the claimants' vocational profile is one that would not result in her having the ability to compete for work in the open labor market after November 1, 2016. To support this, he cited: her age, she was 66 at the time of the evaluation; the 48 years that had lapsed since her high school graduation; her average grades in high school; and the lack of any specific formal training the claimant had undergone since graduating high school.

Further, Mr. Dreiling testified that the restrictions recommended by Dr. Bailey placed the claimant at sedentary work. He noted the restrictions of Dr. Koprivica placed the claimant in potentially less than sedentary physical activity. He had concerns that the claimant's use of Percocet on a daily basis factored into his opinion on employability.

On cross-examination, Mr. Dreiling noted that in her work history, Ms. Comer acquired basic computer skills, including typing skills. She also developed supervisory skills such as being a team leader. He noted that Ms. Comer has no specific restrictions with respect to the use of her arms. Rather, she has some lifting restrictions that would implicate her arms.

Mr. Dreiling was unclear if he had the report of the Functional Capacity Evaluation or, if he did, whether he had the entire report. Nevertheless, he testified that the physical therapist who administered the test, opined that Ms. Comer could return to sedentary work. Further, he agreed that Dr. Bailey provided treatment to the claimant over several months and opined as well that she could return to work within the sedentary work level.

Mr. Dreiling agreed that he did not perform a job search to see what sedentary type positions might be available to Ms. Comer and that he ran no job index. Mr. Dreiling agreed that, since becoming unemployable, the evidence reflects that the claimant nevertheless purchased a

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

firearm tag in 2017, six archery tags in 2017, two turkey tags in 2017, and a general hunting permit in 2017. This is in addition to a firearm tag, six archery tags, and two turkey tags in 2018. Mr. Dreiling was unaware of this hunting activity by Ms. Comer.

Mr. Dreiling agreed with Dr. Koprivica that if the claimant were deemed to be totally disabled it would only be the result of the November 1, 2016 injury combined with qualifying pre-existing disabilities.

**Tom Karrow:**

Tom Karrow testified on behalf of the employer at the hearing. Mr. Karrow is a certified vocational counselor and consultant. Mr. Karrow holds a master's degree in education. He is a certified rehabilitation counselor. In addition, he is a certified case manager. Mr. Karrow is also a certified disability management specialist.

As part of his practice, Mr. Karrow has been certified as a vocational counselor by 35 different organizations. From 2011 through 2015, Mr. Karrow provided veterans counseling work for veterans in the Sioux Falls, South Dakota area. He has also historically worked with veterans since 1977, including as a social worker and vocational rehabilitation specialist.

As part of his work, Mr. Karrow not only performs vocational evaluations on injured workers but also assists injured workers in identifying jobs, seeking vocational rehabilitation, and returning to work. He is a qualified rehabilitation professional certified by the State of Kansas, a certified vocational rehabilitation provider certified by the State of Missouri, and owns Karrow Consulting.

Mr. Karrow met with Brenda Comer on February 21, 2020. Prior to that face-to-face evaluation, he reviewed records of Dr. Koprivica, the Functional Capacity Evaluation report, the report and deposition of Michael Dreiling, the reports of Dr. Bailey, the investigation report of Adam Bullard, and the surveillance video. In addition, Mr. Karrow analyzed United States Department of Labor Statistics for the Bethany area and including a 50-mile radius from the claimant's current residence in Bethany, Missouri.

At the hearing, Mr. Karrow testified that it appeared to him the claimant had no difficulty understanding or responding to questions that he put to her during their meeting. He further felt Claimant provided good effort in answering his questions.

In looking at Ms. Comer's work history, Mr. Karrow noted that she had worked in housekeeping, restaurant management, as a bartender, and with Central Programs for 16 years. He testified that positive factors in Ms. Comer's employability include familiarity and a basic understanding of personal computer use, data entry, and managerial experience. Further, he noted that Ms. Comer is able to utilize and is comfortable with a smart phone. This easily translates to workplace use of tablets. In addition, Mr. Karrow noted that the claimant is able to take care of her own finances and has basic math skills that are functional. Accordingly, he noted Ms. Comer's transferrable skills include communication, dependability, teamwork, organization, adaptability, leadership, and technology literacy. Further, she can read and write without issue and has no difficulty with physical coordination such as hand and eye movement. She has no hearing issues that affect her ability to work.

Page 16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

Based on his education, substantial experience as a vocational counselor and disability management specialist, and training in those fields, Mr. Karrow concluded that Ms. Comer is employable. Specifically, he testified that a reasonable employer operating in Missouri would be expected to hire Ms. Comer.

This is for several reasons. First, there were numerous jobs available to Ms. Comer as of the date of the hearing. This included working at the counter for the Missouri Division of Employment Security, working at a Walmart in any of three separate locations within a short drive of the claimant's residence, a surveillance monitor at a nearby casino, a cashier position at a check-cashing company, a desk clerk for a nearby hotel or a customer service representative performing phone work for Lincare Holdings. In fact, Mr. Karrow noted that the customer service work with Lincare would allow the claimant to work from home and while seated on her couch.

After meeting Ms. Comer in February 2020, Mr. Karrow contacted some of the employers referenced above and described the claimant's vocational profile to them. He reported that several of the employers, including Walmart, indicated they believed she would be a viable candidate to fill open positions. Moreover, Mr. Karrow contacted some of the employers listed in Employer's Exhibit D, the report authored by Mr. Karrow, the morning of the hearing. As of that date, jobs were still open and available to an individual with Ms. Comer's profile.

On cross-examination, Mr. Karrow testified that during his face-to-face evaluation with Ms. Comer in February 2020, she indicated that she had returned to work with Employer but only for a short time. Mr. Karrow agreed that this information is not listed in Exhibit D. Further, he agreed he did not contact Employer to see if it had any jobs for Ms. Comer as part of his evaluation of her and his contacting potential employers in her area.

Mr. Karrow agreed that the claimant performed heavier work prior to November 1, 2016 and performed only sedentary work for 5 days for Employer after November 1, 2016. He noted that the claimant informed him that she simply does not reach above her head with her hands, although that was not a restriction issued by a doctor. Mr. Karrow testified to receiving and reviewing the Functional Capacity Evaluation Ms. Comer underwent in 2017. Mr. Karrow agreed that the Functional Capacity Report includes Ms. Comer's reports of pain when lifting her arms and limited range of motion at the shoulders. He agreed with counsel for claimant that the Functional Capacity Evaluation findings that Ms. Comer should avoid lifting over 12½ pounds from 8 inches from the floor to the waist, 2 pounds from the waist to the shoulder, and 5 pounds with both arms constitute objective findings. Likewise, Mr. Karrow did not recite in his report that the claimant reported elevated blood pressure during the Functional Capacity Evaluation.

Also, on cross-examination, Mr. Karrow testified that pain alone would not prohibit an individual from working. He noted that no physician has stated Ms. Comer should not work solely because of pain. Accordingly, Mr. Karrow tends to stick with the written work restrictions provided by doctors when assessing a person's employability. In that regard, Mr. Karrow agreed that Dr. Bailey placed the claimant at the sedentary exertion level of work. He agreed that Dr. Bailey's restrictions, while placing the claimant at a work level, do not indicate the claimant should work full time or less than 40 hours per week. He did note, though, that in his 40 years of experience as a vocational rehabilitation specialist, that a Functional Capacity Evaluation expresses the participant's ability to work for an 8-hour day. Per his report, no physician has issued a work restriction that Ms. Comer needs to lie down every day.

Page 17

Mr. Karrow testified that Ms. Comer likely could not return to any of the jobs she held prior to November 1, 2016. He did agree there are several job tasks she performed in her career prior to November 1, 2016 she can continue to perform. He testified that Dr. Bailey did not limit the number of hours he believes the claimant could work per week. When speaking with potential employers in the Bethany, Missouri area about Ms. Comer, Mr. Karrow recited the claimant's work restrictions as including the need to alternate sitting and standing, no lifting, and no accounting work. He specifically told the potential employers about Ms. Comer's limitations. As an example, he spoke with Clint, the manager of a local Walmart store, about Ms. Comer's vocational profile and the work restrictions in it.

The claimant's attorney asked Mr. Karrow to agree that an employer such as Walmart that would offer work to the claimant would be offering sheltered work. He suggested to Mr. Karrow that accommodating restrictions is by definition sheltered work and not open labor market work. Mr. Karrow rejected this definition. Rather, he noted that an employer in the open labor market who will offer work to an employee with restrictions is offering open labor market work. He further noted it is not unusual for an employer that is looking for employees to accommodate restrictions.

Findings and Conclusions

Claimant has the burden of proving all material elements of her claim. *Jefferson City Country Club v. Pace*, 500 S.W.3d 305, 313 (Mo. App. W.D. 2016); *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 509 (Mo. Banc 2012).

Claimant testified in person and I find her to be a credible witness. Likewise, I find Mr. Bullard, Dr. Koprivica, Dr. Bailey, Mr. Dreiling, and Mr. Karrow to all be credible witnesses.

1. Whether the alleged accident caused the disability the employee claims.

Under the Act, an injury is compensable only when the claimant demonstrates the injury has arisen out of and in the course of employment. *Annayeva v. SAB of TSD of City of St. Louis*, 597 S.W.3d 196 (Mo. banc 2020) citing § 287.020.3(1) and *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 509 (Mo. banc 2012).

An injury shall be deemed to arise out of and in the course of employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

*Annayeva* citing § 287.020.3(2)(a)-(b).

"For an injury to be deemed to arise out of and in the course of the employment under section 287.020.3(2)(b), the claimant employee must show a causal connection between the injury at issue and the employee's work activity." *Annayeva* citing *Johme*, 366 S.W.3d at 510. "Medical causation, which is not within common knowledge or experience, must be established by scientific

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

or medical evidence showing the relationship between the complained of condition and the asserted cause." *Randolph County v. Moore-Ransdell*, 446 S.W.3d 699 (Mo. App. W.D. 2014) (internal citations omitted).

All of the expert medical evidence and testimony in this case established that Claimant sustained an accident on November 1, 2016 and that the accident caused permanent injury. The Second Injury Fund did not provide any evidence to contradict the expert medical opinions of Dr. Bailey or Dr. Koprivica that the work accident caused Claimant to suffer permanent partial disability. I find that the alleged accident of November 1, 2016 caused the disability the employee claims.

1. Whether the employee suffered any disability and, if so, the nature and extent of the employee's disability and whether the employee is permanently and totally disabled.

The degree of disability sustained by an injured employee is not strictly a medical question. *Landers v. Chrysler Corp.*, 963 S.W.2d 275, 284 (Mo. App. 1997); *Cardwell v. Treasurer of State of Missouri*, 249 S.W.3d 902, 908 (Mo. App. 2008). While the nature of an injury, severity, and permanence are medical questions, the impact that an injury has upon an employee's ability to work involves factors which are both medical and nonmedical in nature. Accordingly, the Courts have repeatedly held that the percentage of disability sustained by an injured employee is a finding of fact within the special province of the fact-finder. *Sharp v. New Mac Elec. Co-op*, 92 S.W.3d 351, 354 (Mo. App. 2003).

Section 287.020.6 RSMo defines "total disability" as the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." An employee is permanently and totally disabled if no employer in the usual course of business would reasonably be expected to employ the employee in his or her present physical condition." *Pennewell v. Hannibal Regional Hosp.*, 390 S.W.3d 919, 924-25 (Mo. App. E.D. 2013) (citing *Clark v. Harts Auto Repair*, 274 S.W.3d 612, 616 (Mo. App. W.D. 2009)).

It is well established that the test for determining whether a claimant is permanently and totally disabled "is whether the worker is able to compete in the open labor market." *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 411 (Mo. App. 2011) (internal citations omitted). "The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition." *Archer v. City of Cameron*, 460 S.W.3d 370, 375 (Mo. App. 2015). The burden is on the claimant to establish he is permanently and totally disabled. *Id.* Whether a Claimant is permanently and totally disabled is a factual question, not a legal question. *Id.* at 376 (citing *Rader v. Werner Enters., Inc.*, 360 S.W.3d 285, 301 (Mo. App. E.D. 2012)).

The treating physician, Dr. Bailey, assessed 10% permanent partial disability of the whole body as a result of the accident. Dr. Koprivica assessed claimant with 30% permanent partial disability attributable solely to the November 1, 2016 accident. Based upon the expert medical testimony of Dr. Bailey and Dr. Koprivica, I find that claimant sustained permanent partial

Page 19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

disability as a result of the November 1, 2016 accident. Based on a review of the evidence, expert medical testimony, the testimony of Claimant, and observing the Claimant's movement and demeanor in the courtroom, I find claimant sustained 25% permanent partial disability of the whole body attributable to the accident.

Furthermore, I find that Ms. Comer has met her burdon of proving she is permanently and totally disabled due to a combination of the November 1, 2016 injury and pre-existing disabilities. In reaching this conclusion, I find that she is totally disabled based on the expert medical testimony of Dr. Koprivica and Dr. Bailey, as well as the testimony of both vocational experts, that Claimant cannot return to any prior work she performed. While I find both Mr. Karrow and Mr. Dreiling to be credible and reliable witnesses, I find that Mr. Dreiling's assessment of Claimant's ability to compete in the open labor market, considering her age, education, work experience, and level of transferable skills, to be more accurate and credible than that of Mr. Karrow. Of particular note was, what the Court perceived as, Mr. Karrow's lack of understanding regarding Claimant's attempt to perform sedentary work with Employer but being unable to last more than one week due to the effects of her work injury. Additionally, Mr. Karrow's vocational evaluation seemed less consistent with the results of the Functional Capacity Evaluation than Mr. Dreiling's.

I find Claimant, based upon and considering her age, education, work experience, and level of transferable skills, is unable to compete in the open labor market and that no employer, in the ordinary course of business, would be reasonably expected to hire Claimant given her present physical condition due to the combined effects of the November 1, 2016 injury and the qualifying disabilities that pre-existed November 1, 2016 as set forth by Dr. Koprivica and by Ms. Comer's testimony.

1. Whether the Second Injury Fund is liable to Employee.

Under §287.220.3 only certain qualifying disabilities can be included in a claim against the Second Injury Fund. *Cosby v. Treasurer of State of Missouri as Custodian for Second Injury Fund*, 579 S.W.3d 202 (Mo. banc 2019). The Court of Appeals recently addressed this issue in *Duboc v. Treasurer of the State of Mo.*, WD 82809 (Mo. App. 2020). In *Duboc*, the Court clarified the Second Injury Fund's liability for permanent total disability benefits under the current statute and case law applying the statute.

The *Duboc* decision specifies, under Section 287.220.3(2), a claimant must establish that:

(a) [The claimant] 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

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**Injury No: 16-085212**

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 19 items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in permanent total disability as defined under this chapter.

**Section 287.220.3(2)(a)-(b).** *Id.* at 18-19.

The Court explained the specific evidence Duboc needed to prove a claim for permanent total disability benefits against the Fund but failed to produce:

As a result, in order for Duboc to secure an award for permanent total disability benefits from the Fund, the evidence in the record must establish that these preexisting disabilities were medically documented before his workplace injury on October 30, 2015; that one or both of these preexisting disabilities "directly and significantly aggravate[d] or accelerate[d] the subsequent work-related injury [on October 30, 2015];" and that these preexisting disabilities were not "unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury [on October 30, 2015]." **Section 287.220.3(2)(a)a(iii).**

*Id.* at 20.

Here, Claimant introduced the supplemental report of Dr. Koprivica, who provided opinions consistent with what the Court directed in *Duboc*. Dr. Koprivica identified a preexisting disability of 25% to the left lower extremity at the 207-week level for a hip fracture. *Exhibit 3* at 3. This exceeds 50 weeks of disability. In addition, Dr. Koprivica concluded the primary injury resulted in symptoms to the right lower extremity, causing deficits in the left lower extremity. *Id.* This condition was medically documented as existing before the November 1, 2016 injury. In 1987, Claimant was involved in a motor vehicle accident resulting in an open fracture of the left hip. This was treated surgically with an open reduction and internal fixation. *Exhibit 1* at 7. As such, this disability qualifies for Fund liability under subsection 287.220.3(2)(a)(iv).

Dr. Koprivica also assigned 15% disability to the body as a whole for claimant's preexisting thoracic condition. *Exhibit 3* at 3. This rating exceeds 50 weeks. Dr. Koprivica concluded this preexisting disability directly and significantly aggravated and accelerated the primary work injury, as the primary injury resulted in a new thoracic injury. *Id.* This condition

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

was medically documented before the November 1, 2016 injury. Claimant had a T7 vertebroplasty on April 5, 2011. Exhibit 3 at 3; Exhibit 1 at 5-6 and 8-9. As such, this disability qualifies for Fund liability under Dr. Koprivica's report under 287.220.3(2)(a)(iii).

Dr. Koprivica's opinion is that Claimant is permanently and totally disabled from the synergism of these conditions combined with the disability resulting from the November 1, 2016 injury, without any consideration for any other non-qualifying conditions. The Second Injury Fund produced no evidence to contradict or discredit this opinion. In addition, Claimant's testimony further supports this conclusion. Claimant credibly testified that she shattered her left hip and leg in 1987 and this injury kept her off work two years. Claimant also credibly testified that she injured her thoracic spine in 2006 and again in 2011 resulting in a fractured thoracic vertebra in 2006, the same portion of her spine she injured on November 1, 2016.

Thus, the evidence submitted at the hearing supports, and I find, that Ms. Comer's disabilities pre-existing November 1, 2016 were medically documented before November 1, 2016, directly and significantly aggravated the subsequent work-related injury, meet or exceed 50 weeks of disability, and were not unrelated pre-existing injuries or conditions that do not aggravate or accelerate the subsequent work-related injury. There is no evidence Ms. Comer is totally disabled solely as a result of the November 1, 2016 injury considered in isolation.

Based on the totality of the evidence, I find Ms. Comer met her burden of proof that she is totally disabled and that the Second Injury Fund is liable to claimant for total disability benefits beginning June 23, 2019 and for the remainder of claimant's life.

1. Whether the employer must reimburse the employee for medical expenses.

Section 287.140.1 requires an employer to provide such care "as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Mo.Rev.Stat. § 287.140.1. A claimant seeking past medical expenses must prove "that the need for treatment and medication flow[s] from the work injury." Maness v. City of De Soto, 421 S.W.3d 532, (Mo. App. 2014) citing Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo.App.W.D.2011). A sufficient factual basis exists for the Commission to award compensation for past medical expenses when: (1) the claimant introduces his medical bills into evidence; (2) the claimant testifies that the bills are related to and the product of his work injury; and (3) "the bills relate to the professional services rendered as shown by the medical records in evidence." Maness citing Martin v. Mid America Farm Lines, Inc., 769 S.W.2d 105 (Mo. banc 1989). "The employer, of course, may challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question." Maness at 544.

I find that Claimant has met her burden of proof that the medical bills she submitted in Exhibits 10 - 12 are the product of a compensable workplace injury and that Exhibits 8 and 9 reflect that she requested authorization from the employer before seeking this treatment. I find that the testimony and evidence in this case demonstrate that the bills are related to and the product

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

of the work injury. I further find that the bills relate to the professional services rendered as shown by the medical record in the case. Accordingly, I find that Employer must reimburse Claimant for medical expenses in the amount of $5,992.06 as set forth in Exhibits 10-12.

1. Whether employer must provide the employee with additional medical care.

A claimant is entitled to future medical treatment only if she shows by reasonable probability that the future medical treatment is needed to "cure and relieve ... the effects of the injury." Section 287.140.1, RSMo. 2005; *Concepcion v. Lear Corporation*, 173 S.W.3d 368, 372 (Mo. App. 2005). A claimant is not required to show "conclusive" testimony or evidence to support a claim for future medical benefits; it is sufficient if the evidence shows by "reasonable probability" that [s]he is in need of additional medical treatment by reason of the work-related accident. *Landers v. Chrysler Corp.*, 963 S.W.2d 275, 283 (Mo. App. 1997). Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt. *Tate v. Southwestern Bell Telephone Co.*, 715 S.W.2d 326, 329 (Mo. App. 1986). This is not to say that if an injured worker is taking medication or receiving treatment for a pre-existing condition, simply because a work injury would require the same treatment both as to type and extent, the treatment then becomes compensable. The treatment must be due to the work injury and not the pre-existing condition. *O'Donnell v. Guarantee Elec. Co.*, 690 S.W.2d 190 (Mo. App. E.D. 1985).

As a treating physician, Dr. Bailey is in a better position to evaluate claimant's medical needs in this particular case and I find him to be more credible than Dr. Koprivica on this issue. He saw Claimant numerous times over several months. As such, he saw firsthand the evolution of claimant's symptoms and could see what treatment is reasonable and necessary. At the conclusion of this lengthy treatment, Dr. Bailey ultimately concluded, "medication management is causing more harm than benefit." *Exhibit B* at page 2. He did suggest claimant seek evaluation with an endocrinologist for systemic issues, but Claimant has not felt the need to pursue that.

I find Dr. Koprivica is not as credible on this issue as Dr. Bailey. He wrote that he would "defer" to a pain management specialist with respect to whether claimant requires treatment. *Exhibit 1* at 19. However, since Dr. Jones last saw claimant in 2018, no pain management specialist has seen her nor has she sought one out. Moreover, Dr. Koprivica suggested possible unnamed behavioral approaches but did not set forth what that might mean in terms of specific treatment. Accordingly, I find his opinion on future medical treatment is speculative and an insufficient basis to find further medical treatment is reasonably probable.

Claimant testified she has received little to no relief from her symptoms from medical treatment she has received since November 1, 2016, including utilizing Percocet as of the date of hearing. Additionally, Claimant is unable to distinguish the treatment she seeks for pain management for the work injury from pain management for her pre-existing injuries. Claimant clearly stated that the pain from the work injury giving rise to this claim is in the same area as her pre-existing injuries. Given Claimant's testimony and the record as a whole, I find that Claimant's ongoing treatment provides her no relief and it is neither reasonable nor necessary as required under §287.140.1.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Brenda Colvin

Injury No: 16-085212

With respect to future medical treatment, I find that claimant failed to meet her burden of proof that it is reasonably probable she requires future medical treatment to cure and relieve the effects of the injury. In reaching this determination, I find the opinion of Dr. Bailey more persuasive. I find Dr. Bailey is more credible and more reliable on the issue of future medical treatment than claimant's expert, Dr. Koprivica.

For these reasons, I find claimant did not meet her burden of proof that she will require future medical treatment at the expense of the employer and I find that employer is not required to provide the employee with additional medical care.

**Conclusion**

I find that Claimant has met her burden of proof that the alleged accident caused the disability she claims. I find Claimant met her burden of proof that her work accident resulted in permanent partial disability of 25% to the body as a whole and that she is permanently and totally disabled and that the Second Injury Fund is liable to Claimant. The Claimant also met her burden of proof that Employer must reimburse her for medical expenses totaling $5,992.06. Claimant, however, failed to meet her burden that employer must provide her with additional medical care.

I order and direct Employer to pay Claimant permanent partial disability benefits in the amount of $29,103.00 (25% of the body as a whole at the 400 week level X $291.03 = 29,103.00) beginning July 22, 2017 through June 22, 2019, for 100 weeks, plus 5,992.06 in necessary medical aid not furnished by Employer/Insurer for a total payment to Ms. Comer of $35,095.06.

Wherefore this Court finds Claimant permanently totally disabled due to her work injury of November 1, 2016 in combination with her medically documented pre-existing disability. I order and direct the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, to pay Ms. Comer (Colvin) $10,884.52 for the period of 37.4 weeks beginning June 23, 2019 and ending March 11, 2020 and permanent total disability benefits in the amount of $291.03 per week from March 12, 2020 onward for the remainder of employee's lifetime.

The award is subject to modifications as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Stephen Nordyke, Employee's attorney, for necessary legal services rendered.

I certify that on 7-14-20

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon each party is retained with

the executed award in the Division's case file.

Made by:

Ryan S. Asbridge

Administrative Law Judge

Division of Workers' Compensation

By:

Ryan S. Asbridge

Administrative Law Judge

Division of Workers' Compensation

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