Barbara Kinnaird v. Buckeye International, Incorporated

Minnaird, Barbara

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administrative law judge deemed determinative. The Commission hereby denies employer/insurer's motion to dismiss.

Employee's brief focuses on a medical causation argument that Dr. Schoedinger agreed that a portion of employee's symptomatology is attributable to the repetitive nature of her work. Dr. Schoedinger's report states that employee's symptoms

are attributable to aggravated degenerative cervical disc disease and arthritis; in addition to which, she may have a cervical disc rupture at one or more levels. She was told that I believe a portion of her symptomatology is attributable to the repetitive nature of her job related activities and to those duties which require lifting or overhead use of her upper limbs.

Tr., at 245.

The ALJ found that "from the treatment records submitted in this case, there is no definitive opinion from any of her multiple treating physicians that her exposure to multiple chemicals at work were the prevailing factor in causing a specific diagnosis or condition." *Award 09-061323, p. 30.* We agree with the ALJ's award on this factual finding. Dr. Schoedinger's opinion further fails to establish that repetitive work duties were the prevailing factor in causing employee's medical condition and disability, as opposed to a contributing factor.

Section 287.067, RSMo, defines a compensable occupational disease as follows, in pertinent part:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

1. An injury or death by occupational disease is compensable only if the occupational exposure 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

1. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Under this section, one does not have a compensable occupational disease if one's work duties constitute a contributing factor, as opposed to being the prevailing factor that causes both the resulting medical condition and disability. Because Dr. Schoedinger opined that the repetitive nature of employee's job-related activities contributed to employee's symptomatology, but did not opine that employee's work activities constituted the prevailing factor resulting in employee's medical condition and disability, his opinion fails to establish a compensable occupational disease under § 287.067. ${ }^{1}$

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

The award and decision of Administrative Law Judge Jason A. Tilley is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 22nd \qquad$ day of November 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member


Shalonn K. Curls, Member

Attest:

[^0]

[^0]: ${ }^{1}$ We note that as of August 28, 2005, § 287.800.1, RSMo, provides: "Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly."

Claimant: Barbara Kinnaird

Dependents: N/A

Employer: Buckeye International, Incorporated

Additional Party: Second Injury Fund

Insurer: Hartford Casualty Insurance

c/o Gallagher Bassett Services, Inc.

Hearing Date: April 22, 2021

Injury No.: 09-061323

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: N/A.
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri.
6. Was above Claimant 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? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work Claimant was doing and how accident occurred or occupational disease contracted: N/A.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Alleged chemical exposure.
14. Nature and extent of any permanent disability: 0 %.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? N/A.
18. Claimant's average weekly wages: $\ 661.38.

1. Weekly compensation rate: The rate of compensation for temporary total disability/permanent total disability was $\ 440.94 and the rate of compensation for permanent partial disability was $\ 404.66.
2. Method wages computation: Adjudicated.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: None.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorneys for necessary legal services rendered to the Claimant: Robert Miller.

Barbara Kinnaird (hereinafter "Claimant"), requested a hearing for a final award to determine the liability of Buckeye International (hereinafter "Employer") for permanent partial disability ("PPD") benefits for an injury alleged on May 12, 2009 while at work.

On April 22, 2021, Claimant appeared in person and by counsel, Attorney Robert Miller, at the Missouri Division of Workers' Compensation office in St. Louis, Missouri. Buckeye International, Inc., and its insurer, Hartford Casualty Insurance c/o Gallagher Basset Services, Inc., appear by and through their attorney, Loretta Simon. The Second Injury Fund appears in person through its attorney, Jennifer Sommers. The Division has jurisdiction to hear this case pursuant to Section 287.110 RSMo. Claimant's counsel requested twenty-five percent (25\%) of the amount awarded to Claimant herein as and for his attorney's fees.

These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth as follows:

1. Incident of occupational disease/exposure.
2. Whether injury arose out of and in the course of employment.
3. Medical Causation.
4. Future Medical Treatment.
5. If there was an accident, did that accident cause permanent total disability?
6. The liability of the Second Injury Fund for permanent total disability.
7. Average weekly wage/TTD rate.

The following exhibits were offered and entered into evidence:

Claimant submitted the following exhibits, which were received into evidence:

1. St. Anthony's Medical Center
2. Ravi Shitut, M.D.
3. St. Anthony's Medical Center
4. John Gragnani, M.D.
5. Jerome Levy, M.D.
6. St. Joseph Health Center
7. Robert Rimmer, D.C.
8. St. Joseph Health Center
9. Meredith Payne, M.D. \& Joseph Homan, M.D
10. Mitchell Rotman, M.D.
11. Victoria Allen, D.O.
12. Jerome Levy, M.D.
13. St. Anthony's Medical Center
14. LabCorp
15. Todd Brickman, M.D./SLU Care
16. St. Louis University Hospital
17. St. Louis University Hospital
18. St. Anthony's Medical Center
19. St. Anthony's Medical Center
20. SSM St. Joseph Health Center
21. Cynthia Byler, D.O.
22. George Schoedinger, M.D. \& Benjamin Crane, M.D.
23. St. Luke's Rehab Care
24. St. Anthony's Medical Center
25. St. Anthony's Medical Center
26. St. Anthony's Medical Center
27. St. Anthony's Medical Center
28. Todd Brickman, M.D./SLU
29. Gregorio Tambone, M.D./University Club Medical
30. Quest Diagnostics
31. St. Anthony's Medical Center
32. St. Anthony's Medical Center
33. St. Mary's Health Center
34. St. Luke's CDI
35. SSM St. Mary's Health Center
36. St. Anthony's Medical Center
37. Stanley lyadurai, M.D./SLU Care
38. St. Louis University Hospital
39. SSM St. Mary's Health Center
40. Quest Diagnostics
41. Matthew Wheeler/Breakthrough Pain Relief Clinic
42. Shawn Berkin, D.O.
43. St. Anthony's Medical Center

1. Yasuo Ishida, M.D.
2. Cardinal Glennon Hospital \& St. Louis University Hospital
3. Stanley Iyadurai M.D./SLU Care
4. Stanley Iyadurai, M.D.
5. St. Anthony's Medical Center
6. Thomas Lee, M.D.
7. St. Anthony's Medical Center
8. Dr. Raymond Cohen
9. Sherry Browning
10. Injury No. 92-159516 Stipulation for Compromise Settlement, Dismissal of Second Injury Fund claim and Claim for Compensation
11. Injury No. 04-058853, Claim for Compensation, Award and Dismissal of Second Injury Fund claim.
12. Material Safety Data Sheets for Buckeye International
13. Job description of Barbara Kinnaird's duties for Buckeye International

Claimant submitted the following exhibits, which were received into evidence:

A. Daniel Kitchens, M.D., deposition dated September 23, 2020

B. Myron Jacobs, M.D., deposition dated March 4, 2020

C. Timothy Lalk deposition dated March 12, 2020

D. Attorney Lien from Floyd Law Firm, P.C.

E. Buckeye International payroll statement of Barbara Kinnaird

None

Based upon the competent and substantial evidence, I find:

Claimant testified that she was born on November 16, 1955 and is currently 65 years old. She was 53 years old on May 11, 2009 and at that time she worked for Buckeye International. Claimant started her position at Buckeye on November 8, 2005 and her duties initially were light and simple and involved cleaning bathrooms, floors, dusting and taking out the trash. However, her employer increased her job responsibilities which then included burnishing floors, running the scrubber, shampooing carpets, cleaning the windows, scraping sidewalks and putting out salt when there was snow, as well as lifting computers, putting them on carts and moving them. During her time at Buckeye, Claimant testified that the company also added 17 offices for her to clean.

Claimant testified that she was a hard worker and she was hoping to retire from Buckeye. Claimant stated that she took home $\ 569.00 each week.

On May 11, 2009, Claimant testified that she thought she was having a heart attack and she could not change the position in her left hand. She stated that she was throwing trash bags and her left hand locked up and pain went up her arm and across to her chest and her heart, along with soreness all over. She went to Gary, a lab tech, and told him what happened and he made her a sling. Claimant stated that the trash cans were 50 -gallon trash cans. She had a big cart that she would take the bags out on, push them through the factury and, then, throw the bags into a big metal container. She believed the bags weighed 80-100 pounds and she had to break them down. She also stated that the cart alone weighed 300 pounds. At some point, Claimant testified an ambulance took her to St. Charles, where, she stated she, was diagnosed with "kidney failure."

Claimant testified she was exposed to multiple chemicals while cleaning, beginning in 2005. At some point, she stated that she developed scabs all over her face and hands. Claimant provided detailed information with respect to the Material Safety Data Sheets (Exhibit 55), which listed the chemicals that were used for cleaning. However, there were some chemicals noted in the MSDS's submitted that she did not use doing her job duties.

Ms. Kinnaird testified that prior to her exposure, she was a healthy person and a strong worker but that the exposure caused not only scabs on her face, along with rashes, but it also "ate" her shoes. She was told to wear black tennis shoes, but this didn't stop the exposure. She stated that these chemicals were "airborne" and she was exposed from the "chemical clouds," but could not say what was actually in these "clouds".

Claimant testified that on February 18, 2007, she eventually had to be taken to the hospital, where she was diagnosed with chemical exposure, sores on her face and arm and a bloody nose. She believed she didn't start experiencing symptoms until sometime in 2007. She further noted that the exposure did not cause her to stop working until 2009.

With respect to her symptomatology, Claimant testified that her symptoms would get "worse and worse," the bloody noses increased and that she couldn't turn her head. Additionally, her feet were hurting and she was unable to stand.

Claimant applied for long-term disability and received her first check on October 2, 2009. The self-purchased disability insurance lasted 36 months, and then she applied for Social Security disability, which she is currently receiving.

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Although Claimant testified that she would like to return to work, she stated that she is unable to do so because she continues to have symptoms including cramps in her arms and pain in her hands. When it is rainy or cold, this causes an increase in her symptoms including pain in her neck and extremities. Claimant further noted that she suffered a "fracture" to her leg and underwent a biopsy where a doctor took out "4 to 5 inches of muscle and nerve endings". She stated she falls down a lot, and her legs are weak.

On cross-examination, Claimant testified that she is a high school graduate. After high school, she completed a tax accounting course at H&R Block and received a certificate. In that class, she earned the fourth highest score on her exam, out of 32 students. After completing that course, she worked in quality control with H&R Block for three years. Her job involved checking the accuracy and completeness of all tax papers from St. Louis City and County before they were sent to Jefferson City.

Prior to working for Buckeye, Claimant had several other jobs including working as a bartender at Sh-Booms. She told the owner of the bar that she would help her keep from losing it and was able to turn the bar's finances around in three weeks. She also worked every Saturday for her parents at Montgomery County Speedway, a racetrack that they owned. She admitted telling Dr. Lalk, the employer's vocational expert, that she had the experience and skills to run a race track. She also advised Mr. Lalk she had enough experience to work as a bookkeeper and she wanted to transfer to this position while she worked at Buckeye.

On cross, Claimant also advised the employer's vocational expert that she believed she had the experience to work in shipping and receiving positions. She also learned scheduling and supervising at the race track.

When Claimant saw Ms. Browning, the employee's vocational expert, she did undergo some testing which noted that she had exceptional basic math skills. She was in the 82 percentile in math calculation skills.

Claimant testified that she currently resides in House Springs on 25 acres of residential property which she owns. She used to raise animals and at one point had up to 128 chickens along with some horses, a cow and goats.

With respect to prior injuries, on cross-examination Claimant testified that in December 1992 she suffered an injury to her back while working at Walmart. She was diagnosed with low back pain, pain in her buttocks and pain radiating down her left foot. She could not recall

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specifically how much money she received, but the stipulation reflected a settlement for 12.5% of the body.

Claimant was also involved in an automobile accident in 2002 that caused injuries to her head, neck and back and she treated with Dr. Rimmer, a chiropractor, for three months for her neck and back pain.

When Claimant worked for Denny's Restaurant in 2004, she suffered an injury to her left elbow. She also believed she hurt her neck and back in that accident; but that case was tried and a Judge found the neck and back injuries to be pre-existing conditions and not related to that incident.

On cross-examination, Claimant testified that she believes she suffered a specific trauma to her neck on May 12, 2009. However, when she was confronted with the St. Joseph Emergency Room record of that date, it was pointed out to her that the report stated "no known history of neck trauma." It was also noted that there was nothing in the records indicating that she suffered an injury at work while lifting trash. She stated that those records were incorrect. Claimant also testified that after this incident, she was referred to Dr. Byler by the employer. She also went to see Dr. Schoedinger on her own. When Claimant was confronted with Dr. Schoedinger's report of June 16, 2009 stating "no history of specific trauma,' she indicated that that record was also inaccurate.

Claimant agreed on cross-examination that Dr. Byler did not recommend any surgery. When she was questioned about the employer sending her to Dr. Kitchens for an evaluation, she said she didn't remember seeing him and didn't recall that he also did not recommend surgery.

Claimant was asked on cross-examination about her St. Mary's admission in July 2011, at which time she advised the hospital that she needed surgery or she would become "paralyzed." Claimant admitted that she was confused at that time. She did admit that she told the doctor that her boss threatened the surgeon and that she heard him doing so on the phone. At that hospital admission, Claimant was asked about her evaluation by Dr. Alshekhlee and the fact that he also did not believe she needed surgery, but she denied seeing this physician. She also could not remember that Dr. Alshekhlee recommended a psychiatric evaluation.

Claimant was also confronted with the St. Mary's Hospital admission record 1 January 18, 2012 when, she said, she was having weakness in both arms and legs. At that time, she was evaluated by both Drs. Feen and Bailey and it was pointed out that neither of these physicians recommended surgery, but she was nonresponsive to the question.

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With respect to the chemical exposure case, on cross-examination Claimant agreed that she went to see Dr. Brickman on her own but was confused and thought she initially saw him in 2007 instead of February 2009. It was pointed out on cross, that although she was having nosebleeds when she saw Dr. Brickman in February 2009, when she returned to him in November 2009 the history notes that her nosebleeds stopped. She was confronted with Dr. Brickman's November 23, 2009 report noting that after she stopped working at Buckeye, she was no longer experiencing any nosebleeds, nasal irritation and she was breathing better. However, although she admitted that she was not having any symptoms at that time, she stated that the nosebleeds started up again after that.

When Claimant was questioned about her evaluation with Dr. Jacobs, who is the employer's pulmonology expert, Claimant stated "He's a liar." When it was noted that she told Dr. Jacob's she no longer smoked, she said Dr. Jacobs made her nervous and she has every right to smoke. She indicated that she continues to smoke and although she used to smoke a pack a day, she now smokes less than that.

When Claimant was questioned about her evaluation by Dr. Berkin on December 2011, on a referral by her previous attorney, her response was that Dr. Berkin "kicked her in the back" and "stomped her on the floor" and "beat her up" and that she had "blood running down her nose." It was pointed out, by defense counsel, that when she saw Dr. Berkin, she told him all of her complaints from the chemical exposure had cleared up and her response continued to be that the doctor physically attacked her. She was with her husband when she saw Dr. Berkin.

Claimant agreed her current attorney sent her to Dr. Cohen for an evaluation in December of 2014, which was three years after she saw Dr. Berkin. She was questioned about the multiple complaints she had when she saw Dr. Cohen, which were not present when she saw Dr. Berkin, three years earlier. These new symptoms included weakness in both hands and arms, radiation of pain in her neck, daily headaches, and numbness and tingling in her hands. When she was asked why she did not tell Dr. Berkin about her symptoms, her response was that he didn't do anything but "beat her up."

Claimant's sister, Bonnie Kinnaird, also testified at the hearing. She is Claimant's younger sister and lives in Rolla, although she previously lived closer to Claimant. She testified that she noticed changes in Claimant's physical activities since 2009.

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Claimant was seen at St. Anthony's Medical Center on August 29, 1992 for complaints of headaches and vomiting. She was diagnosed with labyrinthitis. (Exhibit 1).

Claimant suffered a low back injury while working for Walmart on November 11, 1992, while loading toy cars and was seen by Dr. Shitut on December 2, 1992. At that time, she reported an injury to her back in November of that year and noted that she initially treated with occupational health clinic with medications and physical therapy; and although she noted some improvement, she never did completely get better. She had current complaints of low back pain, bilateral buttock pain with radiation of pain all the way down to the left thigh and left leg. Dr. Shitut believed she had left sciatic symptoms, however, her physical examination, other than muscle spasm was normal. He noted that she could work in a light-duty program. Claimant returned on December 22, 1992 and due to continuing complaints, the doctor recommended a myelogram and post-myelogram CT scan. (Exhibit 2).

Claimant was seen at St. Anthony's Medical Center on January 5, 1993 where she underwent a CT scan of the lumbar spine and a lumbar myelogram. The CT scan noted minimal facet hypertrophy at L4-5 with no definite evidence of a herniated disc. (Exhibit 3).

Claimant was seen by Dr. John Gragnani on March 22, 1993 at which time, the doctor assessed 2-3% disability for her subjective complaints of pain from the November 1992 work accident at Walmart. (Exhibit 4).

Claimant was seen by Dr. Jerome Levy for an IME evaluation on June 1, 1993 with complaints of continued pain in her low back with intermittent pain going down the back of her left leg and worse with bending and standing, also exacerbated by lifting. Dr. Levy diagnosed a chronic lumbosacral strain with minimal degenerative arthritis; a probable bulging disc at L4-5; sacralization of L5; and degenerative disc disease at L5-S1. He assessed 25% disability from the November 1992 work accident. (Exhibit 5).

Claimant was seen at St. Joseph Health Center on April 16, 2002 after being involved in a motor vehicle accident. She had complaints of left hand pain and was diagnosed with a contusion. (Exhibit 6).

Claimant saw Dr. Rimmer, a chiropractor on May 13, 2002, at which time she gave a history of being involved in a motor vehicle accident on April 9, 2002 which resulted in head, neck and mid-back injuries. She was diagnosed with a whiplash neck injury caused by trauma to the cervical spine. Claimant continued treating with Dr. Rimmer until July 19, 2002. On that

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final visit, it was noted, she had sporadic low grade neck pain with muscle spasms, inability to fully regain cervical range of motion, mid-back stiffness and sporadic left wrist pain. (Exhibit 7).

Claimant was seen at St. Joseph Health Center on November 25, 2002. She underwent a CT of the brain which was normal. (Exhibit 8).

The Concentra Medical Center records reflect that claimant was evaluated on June 17, 2004, at which time she presented with a history of a work injury on June 4, 2004 while working at Denny's. She gave a history of slipping and falling on a water leak landing on her left arm and elbow. She was diagnosed with elbow and shoulder contusions along with olecranon bursitis, and physical therapy was authorized. She was last seen on June 25, 2004. (Exhibit 9).

Claimant followed up with Dr. Mitchell Rotman on July 19, 2004 for an evaluation resulting from the fall at Denny's. He initially saw her on July 19, 2004 at which time the doctor noted improvement from her left olecranon bursitis. She followed up again with Dr. Rotman on August 16, 2004, at which time she had complaints of pain in her neck and x-rays revealed multilevel degenerative arthritis at C4-5, C5-6 and C6-7. Dr. Rotman concluded that she had chronic arthritis in her neck along with a possible cervical radicular component, but not related to her fall at Denny's. He noted that her cervical complaints had been a chronic problem for her. He gave her a cervical collar to wear for comfort. (Exhibit 10).

Claimant was seen by Dr. Jerome Levy on November 23, 2004 and he generated a report dated April 6, 2005. He evaluated her after her fall at Denny's. Dr. Levy diagnosed a left elbow status-post contusion; left elbow chronic bursitis; coccyxdynia; chronic lumbosacral strain; and finally, chronic cervical strain. He assessed 15% disability to her back and coccyx; 15% of her left upper extremity at the elbow; and 5% of the body due to the neck, and related all of it to her fall at Denny's on June 4, 2004. (Exhibit 12).

Dr. Todd Brickman initially saw claimant on February 16, 2009, at which time she gave a history that over the last 2 1/2 years she had episodes of nosebleeds from both nostrils that happens one to two times per week. They were becoming more constant over the last few weeks to months. She stated that she worked at a chemical plant where she feels her nose is being "insulted by the chemicals." The doctor diagnosed a moderately-sized nasal perforation. He placed her on nasal saline irrigation and also wanted to work her up for other granulomatous or autoimmune diseases. He told her to follow up in two months. He did recommend the possibility of surgery to help with her nasal obstruction due to her nasal perforation. They also discussed that she wear a mask at work if the chemicals were causing this reaction. Claimant

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returned to Dr. Brickman on April 20, 2009 and noted that she has had significantly decreased epistaxis/nosebleed events in the past month. She only reported one nosebleed episode the last week. She also reported she was breathing better but did have some obstructions at times. The doctor indicated that her autoimmune workup was negative and all of her lab work was negative. He instructed her to continue using irrigation and be vigilant with wearing a mask and avoiding any chemicals that caused irritation at work. Finally, he discussed whether she wished to have surgery to repair her septal defect. (Exhibit 15).

Claimant was seen at St. Louis University Hospital on March 6, 2009 for a CT of her brain as a result of dizziness. The CT evaluation was normal. (Exhibit 17).

Claimant was seen at St. Joseph Heath Center on May 12, 2009, at which time she complained of experiencing left arm and neck pain for the past one to two months that was constant, along with aching and radiation down from her left neck, causing tingling in her left first, second and third fingers. She further noted that for the last three days she has been getting left chest pain and feels a "charley horse" in her chest which lasts for one minute. It occurred while she was working doing her janitorial duties. The report reflects, "Pt. has no known history of neck trauma." (Exhibit 20, page 3). The note indicates claimant does smoke and has a very strong family history of cardiac disease. Claimant's final diagnosis was left arm pain, chest pain, and cervical radiculopathy. X-rays of her cervical spine noted degenerative changes. (Exhibit 20).

The employer sent claimant to Dr. Cynthia Byler on May 27, 2009 to evaluate her left arm and neck complaints. She complained of pulling trash bags and placing them into carts at work. She described a "drawing up" of her left hand. Dr. Byler diagnosed severe osteoarthritis of the cervical spine and severe degenerative disc disease of the cervical spine. Dr. Byler concluded that claimant was experiencing the normal process of aging and did not believe these diagnoses were related to her work. Dr. Byler noted "specifically, her job is not the prevailing factor resulting in this diagnosis and need for additional treatment." (Exhibit 21, page 2).

Claimant was seen by Dr. George Schoedinger on June 16, 2009, after a referral by her family physician. Claimant gave a history of onset of generalized posterior and lateral neck pain associated with discomfort in the left shoulder in mid-April 2009. Dr. Schoedinger's initial report states, "she reports no history of specific trauma." Dr. Schoedinger further notes that she works as a custodian and engages in lifting heavy trash bags and other material. He further notes, "On 05-15-09, without any episode of isolated trauma, she noted a marked increase of her

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symptoms..." Dr. Schoedinger reviewed claimant's x-rays of her cervical spine showing multilevel degenerative changes extending from C4-5 to C6-7. He concluded that her symptoms were attributable to aggravated degenerative cervical disc disease and arthritis and also that she may have a cervical disc rupture at one or more levels. He believed a portion of her symptomatology is attributable to the repetitive nature of her job-related activities. He ordered physical therapy. (Exhibit 22, pages 1-3). When claimant was seen again on July 13, 2009, the doctor recommended an MRI of her cervical spine. Dr. Schoedinger notes that when he spoke with claimant by phone on August 25, 2009, she was unable to tolerate a cervical discography. She wished to attempt the procedure again. The September 22, 2009 note indicates that claimant's discogram, performed on that date, revealed reproduction of her symptoms with injection at C4-C5, however, because of degenerative changes, he was unable to inject the C5-6 level. Dr. Schoedinger recommended an anterior discectomy at the C4-5 and C5-6 levels. (Exhibit 22).

The St. Luke's Rehab records reflect that claimant underwent physical therapy from June 22, 2009 through July 9, 2009. (Exhibit 23).

Claimant underwent an MRI of the cervical spine at St. Anthony's Medical Center on July 22, 2009. The radiologist noted degenerative changes of the mid-cervical spine with bilateral neural foraminal spurring at C4-5, C5-6 and C6-7 and a right protrusion of C5-6. (Exhibit 24).

Claimant was seen at St. Anthony's Medical Center on July 31, 2009 for left calf pain and testing was negative for deep venous thrombosis. (Exhibit 25).

Claimant was seen, again, at St. Anthony's Medical Center on August 17, 2009 at the recommendation of Dr. Schoedinger who at that time performed a cervical myelogram, post myelogram and an attempted cervical diskogram. (Exhibit 26).

Claimant returned to St. Anthony's Medical Center on September 24, 2009 for a cervical diskogram ordered by Dr. Schoedinger. (Exhibit 27).

Claimant returned to Dr. Todd Brickman on November 23, 2009. The doctor noted that since he last saw claimant, she stopped working at the place where she said she was exposed to chemicals. Since that time, she has noted no epistaxis events and no more nasal irritation. She also told the doctor that she can breathe better. (Exhibit 28).

Claimant was admitted to St. Anthony's Medical Center ER on May 2, 2010 with a history of falling down stairs and suffering pain in her right wrist, shoulder and left ankle. The

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nurse's note indicates that she slipped. Claimant was diagnosed with a non-displaced lateral malleolar fracture and joint effusion. (Exhibit 31).

Claimant was seen at St. Mary's Health Center ER on August 1, 2011, at which time she gave a history of back pain, but she left without any treatment. (Exhibit 33).

Claimant was referred to St. Luke's CDI Chesterfield by Dr. Scheperle on June 17, 2011 where she underwent an MRI of her lumbar spine noting moderate posterior disc bulging at L3-4 and mild disc bulging at L2-3 and L4-5. She also underwent an MRI of her brain without contrast which noted multiple nonspecific foci within the white matter of her cerebral hemispheres which can be seen in a setting of demyelinating disease, small vessel disease and chronic migraines. A clinical correlation was recommended. A CT MRI of the cervical spine noted canal stenosis secondary to spondylosis at C4-5, C5-6 and C6-7. An MRI of the thoracic spine also noted a left disc protrusion at T7-8; minimal posterior disc bulging with a small disc protrusion at T4-5 and minimal posterior disc bulging at T3-4. (Exhibit 34).

Claimant was admitted to St. Mary's Health Center on July 13, 2011 at which time she noted that she hurt her back and neck at work and that she's had multiple MRIs and was told that if she did not have surgery to repair the damage sustained to her back and neck, she would "become paralyzed." (Exhibit 35, page 13). Claimant also had complaints of weakness in both legs, headaches and poor coordination with her limbs. She also noted that the previous day she developed severe facial swelling and that her memory has worsened as well. The "Assessment" at that time, among other things was weakness of all extremities with demyelination on the MRI of the brain noted, along with memory loss and pain in her neck and back. A neurosurgery consult was requested. (Exhibit 35, page 18). Claimant was also assessed with anxiety. A neurosurgery consult was performed by Dr. Wetherington. He noted that claimant advised that her exposure to toxic chemicals at work have caused "all her problems." Dr. Wetherington concluded that the results of the spine MRIs did show degenerative changes but did not explain the generalized weakness of her extremities. He reviewed her cervical MRI showing mild canal stenosis along with foraminal stenosis at multiple levels along with degenerative changes and mild disc bulges on her lumbar MRI. (Exhibit 35, page 22). Claimant was also seen in consult by Dr. Alshekhlee and he noted that she gave a history of chronic disease of the spine that she "highlighted in great details." Dr. Alshekhlee further noted that "she claims that her previous boss call the surgeon and threaten them in that they won't pay for the surgery." (Exhibit 35, page 25). Dr. Alshekhlee concluded in his "Impression" that the patient was focused on her prior job.

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being the cause of her chronic pain and seemed angry and depressed. He concluded that neither her clinical examination nor the neuroimaging were conclusive of a true neurological syndrome. He believed her gait was antalgic and nonspecific and may be seen in a conversion syndrome. He agreed that no surgery would be recommended for her. Finally, the doctor recommended a psychiatric evaluation if she was willing to go through with it. (Exhibit 35, page 30).

On August 19, 2011, claimant was admitted to St. Anthony's Medical Center with complaints of chest heaviness/pain with a discharge diagnosis of non-cardiac chest pain. (Exhibit 36).

Claimant was seen by Dr. Stanley Iyadurai at SLU Care for a neurology consult on August 9, 2011. The doctor noted that claimant was there for an evaluation and the management of bilateral lower extremity weakness, tingling, numbness and pain. She said it started after a chemical spill while working at Buckeye. She was currently wheelchair bound and she stated she was also having problems with her bladder and bowel and also complained of back and neck pain. (Exhibit 37, page 8). Dr. Iyadurai's impression was lower extremity weakness, etiology unclear along with idiopathic peripheral neuropathy. (Exhibit 37, page 12).

Claimant was seen at St. Louis University Hospital on August 19, 2011 where she underwent nerve conduction studies by Dr. Iyadurai which noted mild neuropathy. However, under "Impression", the doctor notes no ongoing or chronic denervation was noted. (Exhibit 38).

On January 18, 2012, claimant presented with complaints at St. Mary's Health Center Emergency Room where she was admitted due to upper and lower extremity weakness. She advised that she has had this problem for three years and it was progressively getting worse. (Exhibit 39, page 11). Claimant underwent a consult with Dr. Greg Bailey. He said that she told him that she now uses a cane to steady her gait, but has reported increasing gait difficulties in which she would "shake" after only about 160 feet and eventually was getting weak, "all over" and that she cannot walk any further. She advised him that she was working at a company with "harsh" chemicals. Dr. Bailey concluded that claimant's gait disorder is not secondary to cervical spine spondylosis and, he believed, she had a psychiatric gait disorder. He was not in favor of surgery. (Exhibit 39, pages 15-19). The hospital records further reflect that claimant was currently suing the company and fearful of retaliation and "has received verbal threats." (Exhibit 39, page 22). The hospital notes reflect that claimant was seen by both Dr. Feen and Dr. Bailey and they did not recommend surgery and, therefore, the patient wanted to leave that night. The

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discharge note indicates that the patient appeared very disgruntled before leaving and she was dissatisfied with the care she received. (Exhibit 39, page 24).

Claimant filled out an assessment at the Breakthrough Pain Relief Clinic on January 31, 2012. On the first page of that report, she was asked to fill out a body chart to show what areas of her body she was experiencing pain or numbness. The chart reflects that pretty much all areas of her body were documented as symptomatic. (Exhibit 41, page 1).

Claimant's counsel sent Ms. Kinnaird for an evaluation with Dr. Shawn Berkin on December 21, 2011 and he generated a report dated March 2, 2012. (Exhibit 42). Under "History of Injury", Dr. Berkin notes that claimant reported that on May 11, 2009 she was lifting a container of trash, that was heavier than she had anticipated, and she developed acute neck and back pain after lifting the container to throw it into a trash can. She was taken to the emergency room at St. Joseph Health Center where she underwent a cardiac evaluation that proved to be negative for an acute cardiac event. She also noted a history of developing neck and left arm pain during the course of her employment at Buckeye International doing her regular job duties.

Finally, under "History of Injury," she reported that on May 12, 2009 she was injured at work from exposure to chemicals from a metal tank. She advised Dr. Berkin that the chemicals caused cracking and bleeding to the skin of her feet. She said she was evaluated for her symptoms at a hospital where she was treated for chemical exposure. She indicated that her feet healed over time and she denied any residual complaints from her chemical exposure. (Exhibit 42, page 3).

Under "Present Complaints", claimant complained of pain and tenderness to her neck. She said she wears a brace for support. She also complained of muscle spasms and limited motion of her neck and also low back pain. She stated that she uses a cane to walk in order to maintain her balance. She complained of limited motion of her lower back and stated that her symptoms are aggravated by squatting and kneeling. (Exhibit 42, page 7).

Under "Social History", the doctor notes that claimant smoked one pack of cigarettes a day for 40 years. (Exhibit 42, page 7).

As a result of the May 11, 2009 accidental injury, Dr. Berkin diagnosed cervical strain; cervical disc protrusions at C4-5 and C5-6; and finally, degenerative arthritis of the cervical spine with facet arthropathy and neuroforaminal narrowing. With respect to the May 12, 2009 occupational disease claim, the doctor diagnosed a recurrent cervical strain; protrusion of the C4-5 and C5-6 disc; degenerative arthritis of the cervical spine with facet arthropathy and

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neuroforaminal narrowing; lumbosacral strain; and degenerative arthritis of the lumbar spine with bulging discs at L2-3, L3-4 and L4-5. Finally, with respect to the May 12, 2009 injury the doctor diagnosed history of chemical exposure. (Exhibit 42, pages 10-11).

With respect to disability, Dr. Berkin opined that as a result of the May 11, 2009 accident claim, claimant sustained 20% disability of the cervical spine. With respect to the May 12, 2009 occupational disease claim, Dr. Berkin assessed 20% of the cervical spine and 20% of the lumbar spine. Finally, with respect to the inhalation injury, Dr. Berkin opined that claimant did not sustain any permanent partial disability. The doctor gave an additional permanent disability of 15% of the body as a whole for pre-existing degenerative arthritis involving her neck and low back. (Exhibit 42, pages 12-13).

With respect to treatment recommendations, Dr. Berkin opined, "I do not feel her status would materially improve from further treatment", but he did recommend use of nonsteroidal anti-inflammatory medication and other medications for control of her symptoms. (Exhibit 42, pages 13-14).

Claimant underwent a muscle biopsy of her left leg on April 18, 2012 at Cardinal Glennon Children's Medical Center. That note indicates that claimant had tingling and numbness along with pain that developed after being exposed to a "chemical spill." She is now "wheelchair bound." The muscle biopsy showed only a slight increased variation in fiber size and no other significant histological abnormality, and the doctor concluded that additional clinical information would be needed to further evaluate the biopsy. (Exhibit 45, pages 1-2).

Claimant was seen by Dr. Stanley Iyadurai on May 8, 2012 at which time he confirmed that he was present for a skin biopsy which was performed due to claimant experiencing tingling in her extremities. (Exhibit 46).

Claimant was seen, again, by Dr. Stanley Iyadurai on September 4, 2012 at which time she provided a history of anxiety, shaking, pounding in her chest and memory loss. She also said her feet gave way. When she has anxiety, she also expressed difficulty swallowing. At that time, she was on hydrocodone and a "narco." She also takes anti-anxiety medications. The history notes "does not want any psychiatric help at this time." Under Assessment, the report notes that "whether there is super-imposed Fibromyalgia will be left to specialists in that field." (Exhibit 47, page 3).

Claimant was seen at St. Anthony's Medical Center on December 16, 2012, at which time she reported that the previous day she fell with her left leg giving out under her. She advised that

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she had a history of severe neuropathy. Claimant was diagnosed with a left ankle sprain. (Exhibit 48).

Claimant was seen by Dr. Thomas Lee on May 7, 2014. She reported multiple symptoms including pain in her neck and low back, occipital headaches, mild to lower thoracic pain with breathing, numbness in multiple fingers, pressure in her back with bowel or bladder function, loss of coordination and loss of grip, dizzy spells, and her left leg giving out. After reviewing studies claimant brought with her, he diagnosed C4-5, C5-6 and C6-7 stenosis and cervical kyphosis. (Exhibit 49, page 1). Claimant returned to Dr. Lee on July 21, 2012, at which time he noted, after reviewing an MRI that his "Impression" was foraminal stenosis on the left at C3-4 and stenosis at C4-5, C5-6 and C6-7. He discussed surgical options. (Exhibit 49, page 2).

Claimant underwent an MRI of her cervical spine at the recommendation of Dr. Lee on May 12, 2014, which was performed at St. Anthony's Medical Center. (Exhibit 50). The report noted advanced spondylosis at multiple levels in her cervical spine that have minimally progressed since her 2009 exams. However, the summary further notes a new posterior central disc protrusion at C3-4 with minimal ventral cord impingement. (Exhibit 50, page 2).

Claimant was evaluated by Dr. Raymond Cohen on December 5, 2014 and generated a report of that date. (Exhibit 51, pages 67-80). Dr. Cohen notes under "Current Complaints" that she has constant pain in her neck, difficulty turning her head and neck, weakness in both hands and arms, difficulty feeling small objects with both of her hands, constant aching pain in her neck, radiation of pain in her neck down into her fingers of both hands, both of her grips are weak, numbness and tingling like sensation in her fingers, daily headaches, and the headache pain radiates from the top of her neck to the back of her head along with upper extremity pain and weakness, and occasional nosebleeds and sores on the inside of her nose. (Exhibit 51 pages 74-75). She advised Dr. Cohen that "she does not smoke." (Exhibit 51, page 75).

Dr. Cohen concluded that as a result of the May 11, 2009 accident, claimant suffered from acute left cervical radiculopathy secondary to severe symptomatic cervical spondylosis. As a result of the occupational disease claim of May 12, 2009, he diagnosed occupational disease of the cervical spine; symptomatic cervical spondylosis; chronic cervical sprain/strain; left upper extremity radiculopathy; and cervical cord impingement. As a result of the May 12, 2009 chemical exposure claim, Dr. Cohen diagnosed chronic exposure to toxic chemicals; lower extremity small fiber neuropathy; chronic nasal exposure causing epistaxis and nasal perforation; and chronic headaches. Dr. Cohen further concluded that claimant has subsequent conditions

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including lumbar degenerative spine and disc disease and lumbar syndrome. (Exhibit 51, page 78).

With respect to permanent disability, Dr. Cohen assessed 25% of the body as a whole referable to the cervical spine as a result of the May 11, 2009 claim; an additional 35% of the cervical spine from the May 12, 2009 occupational disease claim; and finally, 35% of the body from the May 12, 2009 chemical exposure claim. (Exhibit 51, page 76. Dr. Cohen further opined that due to a combination of disabilities, claimant was permanently totally disabled and not capable of gainful employment. He further opined that her pre-existing conditions were a hindrance or obstacle to her employment or re-employment. (Exhibit 51, page 80).

Dr. Cohen generated several supplemental reports and clarified his PPD rating in his June 3, 2016 report noting that his opinion remained that she had 25% disability from the May 11, 2009 cervical spine case, but only an additional 10% from the repetitive trauma cervical spine case for total disability of 35% to the cervical spine. (Exhibit 51, pages 84-85).

Dr. Cohen was deposed on January 30, 2020 at which time the doctor was cross-examined and agreed he only saw claimant on one occasion. (Exhibit 51, page 24). Dr. Cohen did not see claimant until about 5 1/2 years after her claim dates. Dr. Cohen agreed that he did not mention in any of his reports that when Dr. Shitut saw claimant on December 2, 1992, she was diagnosed with left-sided sciatica. (Exhibit 51, page 26). He further did not mention claimant treated with Dr. Rimmer for prior neck and back issues. He further did not mention in any of his reports that claimant also treated at Concentra in 2002 for chronic left-sided neck pain. (Exhibit 51, page 27). Dr. Cohen agreed that claimant denied a prior significant history of any problems referable to her neck other than the motor vehicle accident in 2000. (Exhibit 51, page 28).

With respect to claimant's pre-existing conditions, Dr. Cohen further agreed on cross, that claimant had x-rays in 2004 which showed significant multilevel degenerative arthritis at C4-5, C5-6 and C6-7, with loss of joint space and some osteophytes. Dr. Cohen agreed he did not mention Dr. Levy's prior report of April 6, 2005 in which claimant was diagnosed with a chronic lumbosacral strain and a chronic cervical strain. (Exhibit 51, page 29).

On cross-examination, Dr. Cohen further agreed that he did not specifically provide any information about Dr. Berkin's evaluation in his IME report. He conceded he was aware that when Dr. Berkin saw claimant three years before he saw her, Dr. Berkin did not find any evidence of permanent disability referable to her alleged inhalation exposure injury. (Exhibit 51, page 30).

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With respect to claimant's symptomatology on cross-examination, Dr. Cohen agreed that when Dr. Berkin saw claimant three years earlier, she was not having any cervical radiculopathy symptoms. Dr. Cohen further agreed that when Dr. Berkin saw claimant three years earlier, she was not having any chronic headaches and she did not have any complaints of weakness in her hands and arms, nor was she having any difficulty feeling small objects. (Exhibit 51, page 31).

Dr. Cohen further agreed that when she saw Dr. Berkin previously, she did not mention she was experiencing any numbness and tingling and did not mention experiencing upper extremity pain and weakness, nor did she mention her left leg was giving out, nor did she experience any burning in her feet. (Exhibit 51, page 32-33). Finally, Dr. Cohen agreed that when he saw her, she advised that she was experiencing feelings of pins and needles in her toes, along with nosebleeds and sores in her nose but there was no mention of those symptoms when she saw Dr. Berkin three years earlier. (Exhibit 51, page 33).

Dr. Cohen agreed that claimant's symptomatology changed dramatically from the time she saw Dr. Berkin in 2011 and when she saw Dr. Cohen in 2014. (Exhibit 51, page 34).

Dr. Cohen further admitted on cross that although he reviewed Dr. Alshekhlee's reports, he did not mention Dr. Alshekhlee's findings and conclusions that neither her clinical exam nor the neuroimaging were conclusive of a true neurological syndrome and that he thought claimant may have conversion syndrome and that Dr. Alshekhlee recommended a psychiatric evaluation. (Exhibit 51, pages 34-35). Dr. Cohen further agreed that he did not mention Dr. Feen's conclusions in his report that claimant may have a psychiatric gait disorder. Dr. Cohen further agreed that none of the neurosurgeons, Drs. Wetherington, Feen or Alshekhlee, believed claimant needed surgery. (Exhibit 51, page 35).

With respect to the chemical exposure allegations, Dr. Cohen agreed that he is not a pulmonologist and that he was aware that Dr. Jacobs concluded that her breathing issues were due to her years of cigarette smoking, despite the fact that claimant told Dr. Cohen that she did not smoke. (Exhibit 51, pages 36-37). Dr. Cohen further agreed that he did not ask claimant if she previously smoked and that would be considered significant if she is having breathing issues or pulmonary problems. (Exhibit 51, page 37).

Dr. Cohen also conceded that he does not have any background in treating chemical exposure cases. He also agreed that if claimant was exposed to any chemicals at work, they can cause transient effects, and that if she removed herself from exposure, then her symptoms should go away. (Exhibit 51, page 41).

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Claimant was evaluated by Sherry Browning, claimant's vocational expert, on December 29, 2016. She generated a report dated March 2017. (Exhibit 52, pages 64-103). Claimant advised Ms. Browning that she completed the 11th grade at Parkway Central High School, but on cross-examination, she agreed that that statement conflicted with what she told Mr. Lalk about completing her high school degree. (Exhibit 52, page 29). Ms. Browning notes that claimant completed a tax accounting course at H&R Block School and obtained a certificate sometime in the early 1990's. She reported earning the fourth highest score on the exam out of a class of 32 students. (Exhibit 52, page 84). With respect to work history, Ms. Browning noted in her report that claimant worked at Walmart as a sales associate for six years. She also worked for two years in quality control at H&R Block at which time she checked the accuracy and completeness of all tax papers from St. Louis City and St. Louis County, which were, in turn, sent to Jefferson City. She also worked as a bartender at Sh-Booms, at which time she promised the owner that she would keep her from losing the bar, and reported turning the bar's finances around in three weeks, permitting the owner to sell it. (Exhibit 52, page 84). She also made glass jewelry using a kiln, sporadically on a part-time basis, prior to June 2004. (Exhibit 52, page 86).

Ms. Browning did some testing noting that claimant scored in the 82 percentile in math calculations skills. She noted that claimant has exceptional basic math skills. (Exhibit 52, page 87).

On direct, Ms. Browning concluded that claimant is not employable in the open labor market. She noted that the "greater culprit" was the physical demands of her work as a custodian at Buckeye over the course of her employment, however, there did not appear to be any question as to the presence of significant arthritis and degenerative disc disease in her cervical spine. She noted in her report that she was not certain as to the effect of her prior injuries on her ability to work. (Exhibit 52, page 97). She further noted that it is "not unreasonable that the injuries experienced prior to her work at Buckeye had a cumulative effect on her ability to work, culminating in the difficulties she had performing the very physically demanding job at Buckeye." However, Ms. Browning noted that claimant continued to work in physical jobs after each injury, but it appears that the tipping point was the injury of May 2009. At that point, she was precluded from working in any capacity in the open labor market. (Exhibit 52, page 99).

On cross-examination, Ms. Browning testified that she based her conclusions that claimant's prior conditions did not appear to have affected her ability to work on claimant's statements to her about her prior abilities and Mr. Lalk's report. However, she agreed that Mr.

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Lalk noted that there were many inconsistencies, with the information that claimant provided to him, at the time of his evaluation. (Exhibit 51 pages 32-33).

The Stipulation from the Division of Workers' Compensation reflects that claimant sustained an injury on November 11, 1992 which resulted in a payment of 12.5% disability of the body as a whole referable to the low back. (Exhibit 53).

The Workers' Compensation Division file reflects that claimant sustained a prior injury on June 4, 2004 to her left elbow, neck and back. That case was tried and the Judge concluded that claimant sustained 15% disability of the left elbow. (Exhibit 54). The Judge opined that the medical evidence did not support claimant's testimony that she also injured her neck and low back in the accident. (Exhibit 54, page 24). The ALJ stated: "...this is a confusing, difficult case due both to inconsistencies in claimant's testimony and the medical opinions/conclusions". (Exhibit 54, page 24).

Material Safety Data Sheets were submitted which list some of the chemicals that claimant used when performing her duties at Buckeye International. (Exhibit 55).

Claimant's job description at Buckeye International noted that claimant had multiple job duties and responsibilities including, but not limited to, cleaning and sanitizing restrooms, dusting, sweeping, mopping, vacuuming, polishing, cleaning carpets, emptying wastebaskets, and cleaning blinds. (Exhibit 56, page 1).

The employer had claimant evaluated by Dr. Daniel Kitchens on September 12, 2012. She reported to Dr. Kitchens that her job involved heavy custodial work. After reviewing all of the treatment records, Dr. Kitchens concluded that claimant's job activities (occupational disease claim), and the May 11, 2009 work accident, were not the prevailing factor in claimant's development of degenerative disc disease of the cervical spine or the mild degenerative changes noted in her lumbar spine. He reviewed an MRI of her cervical spine dated June 17, 2011 and noted it revealed degenerative changes at C4-C5, C5-C6 and C6-C7 with uncinate process spurring and mild canal narrowing. There was no increased T2-signal within the spinal cord or evidence of myelomalacia. He also noted no spinal cord flattening. Dr. Kitchens further reviewed the MRI of her thoracic spine dated June 27, 2011 which also revealed no disc herniation or thoracic spinal cord impingement. Finally, he reviewed an MRI of the lumbar spine noting degenerative disc disease at multiple levels but no herniation at any of the lumbar levels. (Exhibit A, page 42).

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Dr. Kitchens further opined that neither the accident nor the occupational disease claims result in the need for treatment. He believed that the need for treatment was for her pre-existing degenerative disc disease, cervical spondylosis and lumbar degenerative disc disease. Finally, Dr. Kitchens concluded that claimant was at MMI with respect to the alleged work accidents and did not suffer any permanent partial disability referable to either the specific work incident of May 11, 2009 or her general work activities. (Exhibit A, page 43).

Dr. Kitchens was deposed on September 23, 2020 at which time he testified that claimant reported total loss of pinprick sensation from her neck, into her arms and hands and from about her waistline, into her legs and feet in a non-dermatomal generalized distribution. The doctor concluded that a non-dermatomal pattern is a non-anatomic or a neurologic anatomic pattern of loss. It did not correspond to a specific dermatome/nerve root distribution. (Exhibit A, page 7).

On cross-examination, Dr. Kitchens disagreed with Dr. Schoedinger's conclusions that claimant may have a cervical disc rupture at one or more levels. Dr. Kitchens opined that a rupture was not seen on the MRI. (Exhibit A, page 13). Dr. Kitchens further clarified that Dr. Schoedinger's actual diagnosis was multilevel degenerative changes extending from C4-5 to C6-7. He said the rest of those statements were not his diagnoses. With respect to diagnoses from Dr. Burchett noting that claimant had ataxia, Dr. Kitchens testified that he did not see that based on his examination. He also did not see any evidence of peripheral neuropathy. (Exhibit A, page 19).

On November 15, 2017 the employer referred claimant for an IME evaluation with Myron H. Jacobs, M.D., who is with Pulmonary Consultants, Inc. Dr. Jacobs has an American Board Certification of Internal Medicine, Pulmonary Disease. He is a member of the American Lung Association and Pulmonary Hypertension Association. In addition to having a private practice, he is currently a Clinical Instructor of Medicine at Washington University School. He also is the Director of Pulmonary Medicine at Christian Hospital. (Exhibit B, page 35-37).

Dr. Jacobs generated a report dated December 1, 2017. At that time, claimant advised the doctor that she believed there were multiple different products which, she believes, are toxic that were manufactured at Buckeye. She also said that she was initially injured on February 18, 2007 when fluid leaked in the building which she cleaned. She then "thinks" she was injured at work sometime in 2008. She said there was a leak from a pipe which carried liquid and she "felt as though she got drenched." She does not know what was in the liquid. She advised Dr. Jacobs that she sustained "burns and sores across her entire body." (Exhibit B, page 40). In the history

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she notes that she went to the emergency room at St. Joseph Hospital but "she did not see sores across her body immediately." She, then, was seen by Dr. Brickman a couple of years later. (Exhibit B, pages 42).

Claimant advised Dr. Jacobs that she did not start smoking until age 28-30 and she smoked one pack a day. She told him she quit smoking about six months ago and, therefore, smoked about 30 years.

Dr. Jacobs reviewed the Material Safety Data Sheets provided and noted that there were no pulmonary complications from the heavy-duty cleanser "RAM." (Exhibit B, page 41).

Dr. Jacobs measured claimant's carbon monoxide three times and it was an elevated number which established that claimant was continuing to smoke despite the fact that she indicated that she hadn't smoked for six months. (Exhibit B, page 42).

Dr. Jacobs performed a pulmonary function test which showed mild obstructive lung disease with normalization of the flow rates following inhaled bronchodilator. (Exhibit B, page 41a). Dr. Jacobs concluded that the abnormality in her pulmonary function test was caused by years of cigarette smoking. He noted on exam that she did not have shortness of breath, cough, phlegm, or other ongoing symptoms. Further, the reduction in flow rates responded to an inhaled bronchodilator by normalization. He concluded that this was compatible with COPD with exacerbation or mild asthma. (Exhibit B, page 42).

Dr. Jacobs opined that he did not believe that claimant's job duties caused her pulmonary condition but that it was due to her cigarette smoking. He concluded that she had reached MMI with respect to any pulmonary condition or complaints. Finally, Dr. Jacobs opined that claimant did not suffer any permanent partial disability related to the pulmonary system. He did not believe there was any relation between the substances listed on the Material Safety Data Sheets and her current reduction in flow rates on the function tests. (Exhibit B, page 42).

Dr. Jacobs was deposed on March 4, 2020. On cross-examination, the doctor acknowledged that Dr. Brickman noted that claimant had a deviation of her septum when he saw her on February 16, 2009. Dr. Jacobs explained that a septal deviation can be either congenital or a result of external trauma. He did not believe it could be caused by any chemicals claimant was breathing at work. He explained that "a septal deviation just means that the cartilage is pushed off to one side". (Exhibit B, page 20). Dr. Jacobs reiterated that claimant did not have any pulmonary complaints when he evaluated her. (Exhibit B, page 9). Dr. Jacobs opined that if chemicals were contributing to a perforated septum, there would have also been irritation in the

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mouth and the throat and there was no finding of this on Dr. Brickman's evaluation.

Additionally, he noted that with respect to wearing a mask, the only type of mask which would have been sufficient to eliminate the chemicals would have been a specialized type of mask which had either a self-contained air system or a full-faced mask to filter out inhaled air. (Exhibit B, page 24). Dr. Jacobs pointed out that claimant did not see Dr. Brickman again after April 23, 2009 because the symptoms improved and her bleeding stopped. (Exhibit B, page 25).

On November 13, 2017, the employer referred claimant to Timothy Lalk, a vocational rehabilitation counselor, and an IME report dated April 16, 2018 was generated from that interview. (Exhibit A, pages 31-43). Mr. Lalk noted that claimant expressed anger several times during the interview with regard to her employer. On one occasion, she expressed anger toward Mr. Lalk and on several occasions, she refused to answer some of the questions being asked. In addition to being somewhat uncooperative and resistant, Ms. Kinnaird claimed she had no pre-existing conditions and insisted medical tests on her were positive for "nuclear poisoning." Based on this information, Mr. Lalk did not feel claimant was fully credible. (Exhibit C, page 38).

In the "History of Treatment", claimant advised that she went to the emergency room at St. Joseph Hospital because she had disc problems and "both of her kidneys had shut down." She was given medication and her kidneys were "restarted". Claimant advised Mr. Lalk that when she saw Dr. Schoedinger, he told her that she "had lost all of the discs in her cervical spine except for the one at C1-2." Claimant also told Mr. Lalk that when she was seen at St. Louis University Hospital, the test results were positive for "nuclear poisoning." (Exhibit C, page 51).

When Mr. Lalk asked for detailed information about her symptoms, she stated that, "different parts of my body hurt at different time." She refused any other discussion about her symptoms and became argumentative. (Exhibit C, page 52).

Ms. Kinnaird did advise Mr. Lalk that she had no respiratory problems. (Exhibit C, page 52).

With respect to "Social Background", the claimant advised that her prior recreational activities included riding motorcycles and four-wheelers. She also used to own horses. She advised Mr. Lalk that she does not do much reading except to investigate her previous employer, Buckeye. (Exhibit C, page 53). The claimant noted a previous conviction for possession of stolen property and received two years' probation. (Exhibit B, page 54).

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Mr. Lalk concluded that although the claimant told him she had no medical condition which limited her activity before her work injuries, the medical records described significant conditions which appeared to be chronic in nature. (Exhibit C, page 57). Mr. Lalk further opined that the claimant's case is "complex, contains contradictions and offers different opinions regarding the causation of her current symptoms." He noted it was difficult for a vocational rehabilitation counselor to assess a person's symptoms, limitations and capabilities if there are doubts about a person's credibility. He believed the claimant had a poor understanding of her medical condition, appeared histrionic and described conditions/situations that were either just clearly misunderstood by her or were possibly delusional. (Exhibit C, page 59).

Mr. Lalk noted multiple examples of histrionics in the medical records which reflect that she told him she was hospitalized for chemical burns but she was simply seen in the ER and discharged. She was also seen in the emergency room on May 12, 2009 and advised her kidneys had shut down and had to be restarted, but there was no indication of this in the medical records. She stated that Dr. Schoedinger told her she had lost all of her discs in the cervical, thoracic and lumbar spine, but that was not his diagnosis. She also stated she went to St. Louis University Hospital for a biopsy which, she said, tested positive for nuclear poisoning, but the results indicated small fiber neuropathy. (Exhibit C, page 60).

Mr. Lalk concluded that the claimant does face obstacles to employment, the first being her presentation, and her angry attitude. He also had concerns because of her psychiatric condition. Mr. Lalk further opined that both Drs. Berkin and Cohen limited the claimant to a sedentary level of physical exertion with no lifting more than 10 pounds, among other restrictions. These restrictions would allow her to work at unskilled, entry-level positions. Mr. Lalk concluded that he believed the claimant would benefit from some form of therapeutic counseling to address her anger, anxiety, depression and a possible self-image of herself as "a person with more limitations than impairments than she actually has." (Exhibit C, pages 61).

RULINGS OF LAW

Based upon the competent and substantial evidence, I find:

Claimant's testimony was inconsistent with the medical records and the witness testimony and therefore her testimony is not credible. In light of Claimant's inconsistencies in her testimony, the findings of fact are based upon the medical records and reports along with the depositions of the medical and vocational experts.

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Claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and the injury. Cook v. Sunnen Products Corp., 937 S.W. 2d 221 (Mo. App. E.D. 1996). Claimant does not have to establish the elements of his case on the basis of absolute certainty. It is sufficient if he shows them by reasonable probability. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W. 2d 195 (Mo. App. E.D. 1990) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contrary evidence. Id. at 199.

The term "total disability" is defined 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." Section 287.020(7), RSMo. "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 present physical condition." Pennewell v. Hannibal Regional Hosp., 390 S.W.3d 919, 924-25 (Mo. App. E. D. 2013).

In order for the Second Injury Fund to be liable for permanent total disability benefits, Claimant must establish that his total disability is due to the combination of the primary injury with his then pre-existing injuries. See Boring v. Treasurer of Mo. Custodian of the Second Injury Fund, 947 S.W.2d 483, 489-490 (Mo. App. E. D.1997). If a Claimant's last injury, in and of itself, rendered the Claimant permanently and totally disabled, then the SIF has no liability and the employer is responsible for the entire amount. Hughey v. Chrysler Corp., 34 S.W. 3d 845, 847 (Mo. App. E.D. 2000).

Employer is disputing that on or about May 12, 2009, the claimant sustained an occupational disease arising out of and in the course of her employment and that the claimant's injuries were medically causally related to the alleged occupational disease.

Section 287.067.1 RSMo. provides that the term "occupational disease" is an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 09-061323

Section 287.067.2 RSMo, provides that an injury by occupational disease is compensable only if the occupational disease 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Claimant testified that she was exposed to multiple chemicals while cleaning, beginning in 2005. At some point, she stated that she developed scabs all over her face and hands. She testified that in February of 2007, she had to be taken to the hospital, where she was diagnosed with "chemical exposure", and she had sores on her face and arms and a bloody nose. During the Claimant's testimony, she stated that she had a multitude of different symptoms from the alleged exposure and provided many conflicting, disjointed and confusing statements along with outright misinformation regarding her treatment and multiple diagnoses.

The first medical record submitted regarding her alleged exposure was when she was seen by Dr. Todd Brickman on February 16, 2009. At that time, she gave a history that over the last 2 1/2 years, she had episodes of nosebleeds from both nostrils occurring one to two times per week. The doctor diagnosed a nasal perforation and he placed her on nasal saline irrigation and advised her to follow up in two months. The claimant returned to Dr. Brickman on April 20, 2009, at which time she noted that she had significantly-decreased episodes of nosebleeds and was also breathing better. (Exhibit 15). The claimant did not return to Dr. Brickman again until November 23, 2009, which was about five months after she stopped working with the insured. At that time, the claimant was not experiencing any more nosebleed events and had no more nasal irritation. (Exhibit 28).

Based on the medical evidence submitted, it appears there was a gap of about two years before she started going to multiple physicians for a variety of complaints. She was seen at St. Mary's Health Center on July 13, 2011 where she was complaining of weakness in both legs and poor coordination with her limbs. She advised Dr. Wetherington that her exposure to toxic chemicals at work have caused "all her problems." (Exhibit 35, page 20 and 23). The claimant was also evaluated by Dr. Iyadurai on August 9, 2011 with complaints of bilateral lower extremity weakness, tingling, numbness and pain. She, again, stated that her symptoms started after a chemical spill at work. She appeared in a wheelchair and stated she was having problems with her bladder and bowel. (Exhibit 37, page 8). Dr. Iyadurai's "impression" was lower

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 09-061323

extremity weakness, etiology unclear along with idiopathic peripheral neuropathy. (Exhibit 37, page 12).

The claimant was seen, again, at St. Mary's Health Center on January 18, 2012 where she was admitted due to upper and lower extremity weakness. She advised her problem was getting worse. At that time, she saw Dr. Bailey and told him she was working at a company with "harsh" chemicals. Dr. Bailey believed she had a psychiatric gait disorder. (Exhibit 39, pages 33).

According to the records from Cardinal Glennon Children's Medical Center, the claimant underwent a muscle biopsy on her left leg on April 18, 2012. The note indicates that the claimant had tingling and numbness along with pain that developed after being exposed to a "chemical spill." After testing, the doctor concluded that additional clinical information was needed to further evaluate the biopsy and no definitive diagnosis was made. (Exhibit 45, pages 1-2). The claimant was seen, again, by Dr. Iyadurai on September 4, 2012, at which time claimant provided a history of anxiety, shaking, pounding in her chest and memory loss. The history noted that claimant "does not want any psychiatric help at this time." Under "Assessment", the report notes that "whether there is super-imposed Fibromyalgia will be left to specialist in that field." (Exhibit 47, page 3).

Of significance is that claimant's counsel sent her to Dr. Berkin on December 21, 2011, at which time she stated she was exposed to chemicals from a metal tank. She advised Dr. Berkin that the chemicals caused cracking and bleeding to the skin of her feet. She indicated that her feet healed over time and she denied any residual complaints from her chemical exposure. (Exhibit 42, page 3). Dr. Berkin concluded that with respect to the "inhalation injury" the claimant "did not sustain any permanent partial disability." (Exhibit 42, pages 12).

The claimant was also evaluated by Dr. Cohen on December 5, 2014, at her employer's request. When the claimant was seen by Dr. Cohen, approximately three years after she was evaluated by Dr. Berkin, there was a multitude of new complaints. The new complaints included weakness in both hands and arms, weakness in both grips, numbness and tingling-like sensation in her fingers, daily headaches, upper extremity pain and weakness. (Exhibit 51, page 12). Dr. Cohen's conclusions in this case are simply not credible. When Dr. Cohen was deposed, he agreed that he did not specifically provide any information about Dr. Berkin's evaluation in his IME report and he conceded that he was aware that when Dr. Berkin saw the claimant three years

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 09-061323

prior, he did not find any evidence of permanent disability referable to her alleged inhalation exposure injury. (Exhibit 51, page 30).

Additionally, on cross-examination, Dr. Cohen agreed that he is not a pulmonologist. When it was pointed out to him that Dr. Jacobs concluded that her breathing issues were due to her years of smoking, Dr. Cohen conceded that he did not ask the claimant if she previously smoked and that would be considered significant if she was having breathing issues or pulmonary problems. (Exhibit 51, page 37). Dr. Cohen further conceded that he does not have any background in treating chemical exposure cases. He also agreed that if the claimant was exposed to any chemicals at work, they could cause transient effects and that if she removed herself from exposure, then her symptoms should go away. (Exhibit 51, page 41).

Dr. Jacobs evaluated the claimant on November 15, 2017 at the request of the employer. Dr. Jacobs is Board Certified in pulmonary disease and he is a member of the American Lung Association and Pulmonary Hypertension Association. The doctor is also the Director of Pulmonary Medicine at Christian Hospital. (Exhibit B, pages 35-37).

Despite the fact that the claimant advised Dr. Jacobs that she quit smoking six months prior, he measured her carbon monoxide three times and it was an elevated number which established that the claimant was continuing to smoke, despite the fact that she indicated that she hadn't smoked for a six-month period. (Exhibit B, page 42). Dr. Jacobs performed a pulmonary function test which showed mild obstructive lung disease with normalization flow rates following an inhaled bronchodilator. (Exhibit B, page 41). Dr. Jacobs concluded that the abnormality in her pulmonary function test was caused by years of cigarette smoking. He noted on exam that she did not have shortness of breath, cough, phlegm or other ongoing symptoms.

Dr. Jacobs opined that he did not believe that the claimant's job duties caused her pulmonary condition, but that it was due to her cigarette smoking. (Exhibit B, page 42).

With respect to the claimant's septal deviation, Dr. Jacobs did not believe it could be caused by any chemicals the claimant was breathing at work. He stated it could either be congenital or a result of external trauma. (Exhibit B, pages 19-20).

Clearly, from the treatment records submitted in this case, there is no definitive opinion from any of her multiple treating physicians that her exposure to multiple chemicals at work were the prevailing factor in causing a specific diagnosis or condition. Even if one assumes that the claimant's exposure to any of the cleaning chemicals caused some type of skin irritation, clearly that condition cleared up once she left her employment at Buckeye.

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Based upon all of the medical evidence offered, I find Dr. Jacobs to be the most credible. Therefore, I find that claimant failed to meet her burden in establishing that her job duties were the prevailing factor in causing an occupational injury.

The issue of future medical treatment is moot, since I find that Claimant failed to meet her burden to establish that her job duties were the prevailing factor in causing an occupational injury.

The issue of permanent partial or permanent total disability is moot, since I find that Claimant failed to meet her burden to establish that her job duties were the prevailing factor in causing an occupational injury.

The Claim against the Second Injury Fund is denied, since I find no compensable occupational disease has been proven by Claimant.

Based on the wage statement, Claimant's average weekly wage is $\ 661.38, with a TTD rate of $\ 440.94.

Therefore, based on the evidence, Claimant is awarded no benefits.

Because no benefits were awarded, no attorney fees are awarded.

Issued by DIVISION OF WORKERS' COMPENSATION

I certify that on 7-23-21, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By ________________________

Jason A. Made by: Tilley ________________________

Digitally signed by Jason A. Tilley Date: 2021.07.21 12:14:37 -05'00'

Jason A. Tilley Administrative Law Judge Division of Workers' Compensation