Rosalyn McMillion v. Bi-State Development Agency

Improvee: Rosalyn McMillion

-2-

burden of proving with reasonable medical certainty that her PTD was the result of disability from her primary injury in combination with preexisting disability, as required under § 287.220.1 RSMo. 2000. The ALJ instead found that permanent partial disability (PPD) from the employee's last injury combined with preexisting PPD to create an overall disability that exceeded the simple sum of the employee's PPD's by 20%, finding the SIF liable for 39.92 weeks of PPD.

We adopt the ALJ's factual finding that PPD from employee's last injury was limited to 20% PPD to her right elbow (42 weeks) as documented in her stipulation for compromise settlement with employer/insurer, and that employee's preexisting disabilities at the time of her February 2005 injury, consisted of 8% PPD to the low back, 16% PPD to the right knee, 10% PPD due to depression and 15% PPD due to personality disorder. Evidence showing that employee settled claims for her low back condition with her employer based on a higher percentage of disability, does not bind the SIF, or the Commission. See Seifer v. Treasurer of Missouri - Custodian of the Second Injury Fund, 302 S.W.3d 59, 64-65 (Mo. App. 2007).

Distinguished from the facts in the recent Mark Lynch opinion, credible evidence in this case supports the conclusion that the employee failed to prove PTD medically causally related to a combination of her primary injury and preexisting disabilities.² The SIF produced vocational rehabilitation counselor Mr. James M. England's report. Mr. England noted that employee had no medical restrictions from any treating doctors and that employee herself "indicated that up to the point of her hand problem she was still able to work full time and take care of all her households needs." He concluded, "If [the employee] is totally disabled at this point, it would be my opinion that this would be due to the effect of the last injury in isolation regardless of any preexisting medical problems."³ Mr. England's report constituted competent and substantial evidence in support of the ALJ's finding that employee's PTD was not medically causally related to disability from her work injury in combination with preexisting permanent partial disabilities, as required by § 287.220.1 RSMo, and that her PTD instead arose as a result of conditions that developed subsequent to her primary injury including disability to employee's bilateral hands and wrists and depression due to chronic pain as a result of this condition.

We concur with the ALJ's finding that Mr. England's opinion constituted the only vocational rehabilitation evaluation that specifically addressed how employee's preexisting post-2004 disabilities affected her employability. We credit Mr. England's opinion over the contrary opinion of employee's expert Mr. James E. Israel. We find Mr. Israel's conclusion that the employee had vocational impairments prior to February 8, 2005 inconsistent with his finding that none of employee's pre-2005 impairments precluded her from continuing to work full duty with no medical restrictions.⁴

² See Mark Lynch vs. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, (ED109502, October 19, 2021).

³ Transcript, p. 1105

⁴ Id., p. 551, 557.

-3-

Based on this evidence, we affirm the ALJ's determination that the employee was only PPD as a result of 20\% PPD to her right elbow sustained as a result of her February 2005 primary injury in combination with disabilities that preexisted her February 2005 injury. We further affirm the ALJ's finding that disability from employee's primary injury combined with preexisting PPD to create an overall disability that exceeded the simple sum of her permanent partial disabilities by 20 % and that employee is entitled to PPD from the SIF for 39.92 weeks of additional compensation $(\ 14,133.68). This determination is consistent with judicial precedent holding that resolving conflicting expert medical opinions regarding the cause of an employee's disability and deciding the percentage or degree of disability to award an employee is a finding of fact within the unique province of the Commission. ABB Power T\&D Co. v. Kempker, 236, S.W.3d 43, 52 (Mo. App. 2007); Guinn v. Treasurer of Missouri, 600 S.W.3d 874, 878 (Mo. App. 2020).

The above clarifications of the ALJ's award do not detract from his correct analysis of the evidence in the record or his ultimate legal conclusions.

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

The award and decision of Administrative Law Judge Edwin J. Kohner, issued March 25, 2021, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 29th \qquad$ day of November 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

The issue before the Commission is whether the administrative law judge (ALJ) properly denied employee a permanent total disability (PTD) award against the Second Injury Fund (SIF) despite crediting employee's testimony regarding her ongoing complaints, adopting the uncontroverted opinions of employee's medical experts, and finding that employee is totally disabled due to her vast array of medical conditions.

Dr. David Volarich is a fellow in the American Academy of Disability Evaluating Physicians, American Board of Forensic Examiners and, The American Board of Independent Medical Examiners. Dr. Volarich opined that the employee had 15\% industrially disabling permanent partial disability (PPD) of her right upper extremity related to cubital tunnel syndrome not surgically repaired, related to her 2005 primary injury. He limited employee's use of her right elbow as well as other upper body parts.

Dr. Volarich further found that employee had industrially disabling preexisting disability to her lumbosacral spine due to chronic back pain and lost motion in the amount of 15\% PPD of the body as a whole (BAW). Dr. Volarich deferred to a vocational expert for an assessment of whether the employee was PTD, stating, "If vocational assessment is unable to identify a job for which she is suited, then it is my opinion that she is permanently and totally disabled as a result of the work related injuries leading up to 2/8/05 in combination with her preexisting medical conditions."1 No medical evidence refuted Dr. Volarich's evaluation of employee's disabilities. The ALJ assigned 20\% PPD to employee's right elbow related to the primary injury, consistent with her settlement with employer.

Employee's forensic expert, clinical psychologist Dean L. Rosen, opined that employee had psychiatric disabilities that preexisted her primary injury, consisting of personality disorder and major depression, in the amount of 15 % of the BAW and 10 % of the BAW, respectively. Dr. Rosen explained that these disorders and injuries had the potential to,

combine with other medical conditions and work injuries to create impairment and disability that is higher than the numerical sum of their individual disability ratings. [Employee's] psychiatric injuries impair her work performance and industrial efficiency by reducing her energy, stress tolerance and ability to get along with others on the job and adapt to the changes in the work environment. ${ }^{2}$

The ALJ adopted Dr. Rosen's evaluation of employee's preexisting psychiatric disability per se in his award. ${ }^{3}$ The SIF offered no evidence to refute Dr. Rosen's assessment of employee's psychological/personality disorders or how they affected her employability.

[^0]

[^0]: ${ }^{1} Transcript, p. 545.

{ }^{2} Id., p. 534.

{ }^{3}$ Award, p. 12.

Employee: Rosalyn McMillion

-2-

Employee's vocational expert, James E. Israel, opined that the employee, given her medical restrictions and without medical/psychological determined improvement of her disability in addition to job-readiness training, lacked any favorable prospects at retaining employment. He concluded, "Her overall physical and mental limitations, pain, educational and work background factors, and required work-site accommodation have rendered Ms. McMillion unable to compete in the open labor market."4

The ALJ found, "All of the forensic evidence is clear that the claimant's preexisting disabilities combined with the disability from the 2005 work related injury to create an overall greater disability than the simple sum of the individual disabilities."5

After reciting all of the above forensic opinions in his Summary of Facts, the ALJ assessed a 20% loading factor, clearly giving extraordinary weight to the combination of disability attributable to employee's primary and preexisting injuries and disabilities. He further found that the employee credibly testified about significant ongoing complaints, without exception, associated with these injuries. Specifically, employee testified:

- She hasn't driven an automobile since 2005 because her right elbow and right knee disability cause problems steering and using the accelerator and brakes.

- Employer's treating physician restricted her to "no sitting long, standing long, no bending and no twisting including not driving a bus."6

- Pain medication prescribed by Dr. Armbruster and Dr. Chen precluded her from operating a bus.

- A 2001 right knee injury resulted in six months of physical therapy and being off work for nine months, and the need to wear a knee brace while driving busses.

- She takes Prozac for depression.

Competent and substantial evidence demonstrates that the employee was PTD due to a disability attributable to her right elbow injury in combination with her preexisting back, right knee, and personality disorder/depression disabilities.

As the court held in *Garibay v. Treasurer of Missouri*, 930 S.W.2d 57, 61 (Mo. App. 1996) neither the ALJ nor the Commission may "arbitrarily cast aside competent, substantial and undisputed testimony of witnesses who are not shown by the record to have been impeached." Such is the case here, particularly given the competent, substantial, and undisputed opinion of Dr. Volarich.

Given the ALJ's significant reliance on employee's medical/psychological experts, he committed error when he rejected their opinions as untimely, rendered long after employee's settlement with employer/insurer related to her primary injury.

---

4 *Transcript*, 557.

5 *Award*, pp. 12-13.

6 *Id.*, 30.

The ALJ's finding that employee's right elbow primary injury did not develop into a severe disabling condition until well after February 2005 is contrary to Dr. Bruce Schlafly's evaluation finding that employee needed surgery for her right elbow pursuant to Washington University electrical studies done on February 8, 2002. Dr. Schlafly's opinion and employee's testimony established the date of her primary injury and reinforced the severity of her condition as of February 8, 2005. Electrical studies Dr. Schlafly ordered showed bilateral carpal tunnel syndrome and right cubital syndrome for which employee needed surgical treatment. In his November 1, 2006, deposition, Dr. Schlafly further testified that the employee "would continue to experience pain, numbness and tingling in her hands if she did not undergo surgery." The conclusions in Dr. Schlafly's independent medical report proved that employee had substantial disabilities with her right elbow (and wrists) at the time of her primary injury, contrary to the ALJ's finding that these conditions only manifested after the primary injury.

Dr. Volarich examined employee on December 10, 2007, approximately one year after employee's November 21, 2006, settlement of her primary claim. Employee had not undergone recommended surgery on her right elbow, due to lack of insurance. It is therefore only logical that her right cubital tunnel condition would not have improved and did not represent an additional disability that manifested after the 2005 occurrence.

Dr. Rosen's June 1, 2007, examination of the employee and subsequent report came within seven months of employee's primary claim settlement. This time parameter was not "long after the claimant settled her claim with her employer." Further, the ALJ's adoption of Dr. Rosen's exact depression/personality disorder ratings is inconsistent with a conclusion that excessive delay after employee's primary injury settlement compromised Dr. Rosen's evaluation/opinion.

Although the ALJ did not specifically reference vocational expert James Israel's report as being stale, Mr. Israel did conduct his April 8, 2008, vocational evaluation of employee seventeen months after she settled her primary claim with employer. Mr. Israel's evaluation was within one year of receipt of Dr. Volarich and Dr. Rosen's evaluation. Mr. Israel's evaluation was clearly more timely than the December 19, 2016, record review SIF's vocational expert Mr. James England, conducted ten years post settlement.

All of employee's forensic experts, Dr. Volarich, Dr. Rosen, and Mr. Israel personally evaluated and tested employee within seventeen months of her settlement with the employer. The SIF's only forensic expert, Mr. England, on the other hand, never met with or tested the employee in person, and performed only a record review. I find Mr. Israel's evaluation clearly more credible and entitled to great weight.

Although the ALJ questioned the timeliness of employee's medical/psychological expert opinions, he thereafter contradicted himself by expressly crediting employee's experts, stating: "[The] numerous forensic experts have examined the claimant's situation and

[^0]

[^0]: ${ }^{7} Transcript, p. 627.

{ }^{8}$ Award, p. 12.

Enployee: Rosalyn McMillion

-4-

concluded that she is now unemployable in the open labor market . . . the evidence is clear the claimant is now totally disabled due to her vast array of medical conditions.¹⁹

The ALJ found, "Mr. England was the only forensic expert to evaluate the effect of the claimant's post 2004 disabilities and the effect on the claimant's employability."¹⁰

Employee's vocational expert Mr. Israel interviewed employee in person on April 8, 2008 where she disclosed a vast array of disabilities/limitations, including:

- Tingling in both arms.

- Extensive disc discomfort in her back.

- Intermittent throbbing in her right knee, necessitating the use of a knee brace.

- Feeling irritable and depressed.

- Reduced concentration.

- Difficulty lifting and carrying items and using her lower limbs.

- Back pain after sitting for thirty minutes.

After personally administering the standardly accepted "Pegboard Test," Mr. Israel found that employee's scores were more similar to those who were not successful at returning to work. He concluded that, "considering these restrictions, Ms. McMillion is clearly unable to return to her past job as a bus driver. She is unable to return to any occupation that she has performed as a car rental agent or security monitor."¹¹

Based on this evidence, the ALJ clearly erred by ruling that ". . .Mr. England was the only forensic expert to evaluate the effect of the claimant's post 2004 disabilities and the effect on the claimant's employability [emphasis added]."¹²

The SIF's vocational expert Mr. England opined, based on employee's stated ability to work full time and take care of all her household needs "up to the point of her hand problem" that "If, therefore, she is totally disabled at this point, it would be my opinion that this would be due to the effect of the last injury in isolation regardless of any preexisting medical problems."¹³ This finding is clear error because no medical care providers or forensic experts opined that the employee was PTD solely due to her bilateral carpal tunnel conditions.

---

9 Award, p. 13.

10 Id.

11 Transcript, p. 556.

12 Award, p. 13.

13 Transcript, p. 1105.

The ALJ erred in ignoring the forensic medical/psychological opinions in evidence and in adopting the opinion of a vocational expert unsupported by any competent and substantial medical evidence in the record.

The Commission errs in denying a PTD award where, as here, it finds that the employee is PTD "and the medical evidence conclusively establishes that his preexisting . . . disabilities combines with his primary injury to cause the permanent total disability." Lawrence V. Treasurer of Mo.-Custodian of the 2nd Injury Fund, 470 S.W.3d 6 (Mo. App. 2015). The ALJ's award is against the weight of the evidence because it incorrectly discredits employee's experts' uncontroverted opinions as stale and relies on a vocational expert's hypothetical opinion that is unsupported by any medical evidence and controverted by other credible and substantial vocational evidence in the record.

No credible evidence in the record supports the conclusion that employee has failed to meet her burden of proof that she was PTD due to a combination of her primary right elbow injury and preexisting disabilities related to her back, right knee, and personality disorder/depression. See Mark Lynch vs. Treasurer of the State of Missouri, Custodian of the Second Injury Fund (ED109502, October 19, 2021). Vocational expert Mr. Israel's opinion and its reasonable inferences are so non-probative that no reasonable mind can believe his conclusion. The ALJ's award is therefore against the weight of the evidence. See § 287.495.1.(4); Harris v. Ralls Cty., 588 S.W.3d 579, 594595 (Mo. App. 2019).

I would modify the ALJ's award of PPD to find the SIF liable to employee for PTD benefits from the date of injury to present, allowing a $\ 15,000.00 credit for employee's settlement with employer associated with her primary right shoulder injury.

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls Member

Employee: Rosalyn McMillion

Injury No.: 05-036949

Dependents: N/A

Employer: Bi-State Development Agency. (Settled)

Additional Party: Second Injury Fund

Insurer: Self Insured (Settled)

Hearing Date: January 6, 2021

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kr

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: February 8, 2005
5. State location where accident occurred or occupational disease was contracted: City of St. Louis, 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: The claimant, a commercial bus operator, developed cubital tunnel syndrome.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right elbow
14. Nature and extent of any permanent disability: 20 % permanent partial disability to the right elbow
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 753.60
3. Weekly compensation rate: $\$ 502.40 / \ 354.05
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: Yes

39.92 weeks of permanent partial disability from Second Injury Fund

$\ 14,133.68

TOTAL:

$\ 14,133.68

1. Future requirements awarded: 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 attorney for necessary legal services rendered to the claimant: Randall S. Parker, Esq.

Employee: Rosalyn McMillion

Injury No.: 05-036949

Dependents: N/A

Employer: Bi-State Development Agency. (Settled)

Additional Party: Second Injury Fund

Insurer: Self Insured (Settled)

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kr

This Workers' Compensation case requires a determination of Second Injury Fund liability arising out of a work-related injury in which the claimant, a commercial bus operator, developed cubital tunnel syndrome in her right elbow. The sole issue for determination is Second Injury Fund liability. The evidence compels an award for the claimant for additional permanent partial disability benefits from the Second Injury Fund.

At the hearing, the claimant testified in person and offered medical reports and depositions from David T. Volarich, D.O., Bruce Schlafly, M.D., Dean Rosen, Ph.D., and James Israel, records of the pleadings in this case, prior Workers' Compensation settlements, the claimant's Workers' Compensation settlement with his employer in this case, employment and education records of the claimant, Social Security records, and various medical records. The defense offered personnel records from the claimant's employer in this case, records from the Missouri Division of Employment, and two depositions of the claimant.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occupational disease was contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

In February 2005, this then 44-year-old claimant, a commercial bus operator for 6 to 7 years, developed bilateral carpal tunnel syndrome and right cubital tunnel syndrome. Virtually all the busses she operated were non-power steering, which led to pain and numbness in her hands, wrists, and elbows after years of turning same. The claimant testified that she pushed the fare box keypad buttons and punched transfers with her right hand, which aggravated her hands, wrists and right elbow. The claimant's duties were:

- Operate passenger busses from 8 to 10 hours a day with infrequent breaks.

- Responsible for pre-trip inspections as outlined in Employee/Claimant's Exhibit 31, pp. 1-8.

- Responsible for using a hole punch to punch holes in transfer cards with her right hand while holding a book of transfers in her left hand.

- Responsible for checking on safety of passengers while still fastened with a seat belt.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

- Manually operating parking brake.

- Frequently using right foot/leg to operate accelerator/brake and stopping said vehicle at numerous bus stops.

- Pulling a lever straight up to open back exit door.

- Pushing buttons on the fare box with her right hand/elbow.

- Responsible for lifting, sliding and securing wheel chairs on the bus. See Exhibit 31.

On February 2, 2005, the claimant went to Dr. Schlafly with complaints of bilateral wrist pain and numbness with symptoms extending in to the fingers and elbows for three years. See Exhibit 26. Her examination revealed a positive Phalen's test bilaterally with some tenderness on the posterior aspect of the right elbow. On February 8, 2005, electrical studies revealed bilateral carpal tunnel syndrome, severe on the right and moderate on the left, as well as right cubital tunnel syndrome. See Exhibits 22, 26. On March 17, 2005, the employer terminated the claimant's employment for failure to produce a urine sample during a random drug test. See claimant deposition I, page 23, SIF Exhibit III. On March 22, 2005, Dr. Schlafly opined the claimant suffered from cubital tunnel syndrome in her right elbow and bilateral carpal tunnel syndrome based on electrical testing on February 8, 2005, the date of injury. See Exhibit 26. Dr. Schlafly recommended surgery for both conditions. Dr. Schlafly recommended surgery for both conditions and opined, "...that claimant would continue to experience pain, numbness and tingling in her hands if she did not undergo surgery". See Exhibit 26 and Dr. Schlafly deposition, page 13. He opined the claimant suffered from cubital tunnel syndrome in her right elbow and bilateral carpal tunnel syndrome based on the electrical testing.

On May 5, 2005, the claimant filed a Claim for Compensation based on disability to both of her hands and wrists. On July 22, 2005, the claimant filed a First Amended Claim for Compensation adding disability to her right elbow. On November 21, 2006, a settlement with the employer was approved "based upon approximate disability of 20% of right elbow." The settlement recited "the settlement was in accordance with the rights of the parties" and "was not the result of undue influence or fraud; the employee fully understands his/her rights and benefits; and the employee voluntarily agrees to accept the terms of the agreement." The document was signed by the claimant and her legal counsel. On the same date, the claimant filed a Second Amended Claim for Compensation alleging disability to her bilateral hands and wrists and to her right elbow on her case against her employer and permanent total disability against the Second Injury Fund based on preexisting disabilities relating to her right knee, shingles, and depression. On May 21, 2007, the claimant filed a Third Amended Claim for Compensation alleging disability to her bilateral hands and wrists and to her right elbow on his case against her employer and permanent total disability against the Second Injury Fund based on preexisting disabilities relating to her right knee, shingles, depression, migraines, and diabetes.

Pre-Existing Conditions

On November 19, 1997, and March 10, 1998, the claimant reported complaints compatible with anxiety and depression to her primary care physician, Dr. Perry, who prescribed Prozac in office consultations. See Exhibit 1.

In January 2000 and March 2001, the claimant suffered low back injuries in two work-related motor vehicle accidents. She received six months of physical therapy combined between

WC-73-R1 (6-01)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

the two cases. On April 17, 2001, and May 2, 2001, Dr. Tate, a physician specializing in physical medicine and rehabilitation, ordered two (2) trigger point injections in the claimant's back. See Exhibit 7. On May 16, 2001, an MRI revealed degenerative disc disease L3-4, L4-5 and L5-S1 and possible lateral herniated disc L5-S1, left. See Exhibit 8. The claimant settled her Workers' Compensation cases with her employer on the basis of a 3% permanent partial disability of the low back for the 2000 case and 7.5% permanent partial disability of the low back for the 2001 case. See Exhibit 35.

On December 14, 2001, the claimant slipped and fell on a concrete parking garage floor, hyper flexing her right knee. On December 28, 2001, a right knee MRI revealed: tear of posterior horn of medial meniscus, severe degenerative changes of lateral meniscus, degenerative changes in all three (3) joint space compartments, sprain of lateral collateral ligament. See Exhibit 13. The claimant went to Dr. Glen Johnson, an orthopedic surgeon, who diagnosed contusion of right knee with patella femoral pain; and possible meniscus tear. Apparently, he disagreed with the findings of the radiologist. On March 14, 2002, Dr. Johnson performed a diagnostic arthroscopy of the claimant's right knee with a postoperative diagnosis of Grade I changes lateral compartment with no evidence of meniscal pathology. See Exhibit 16. Dr. Johnson ordered physical therapy over the following six months, as well as phonophoresis and cortisone shots. See Exhibit 14. On September 9, 2002, Dr. Johnson's final diagnosis was "right knee arthroscopy with residual patella femoral symptoms." See Exhibit 14. The claimant settled her Workers' Compensation Claim with her employer on the basis of a 16% permanent partial disability of the right knee. See Exhibit 35.

In October 2004, the claimant went to her primary care physician, Dr. Lisa Armbruster, for low back pain. Dr. Armbruster provided an injection of pain medication, Toradol, and on October 6, 2004, she prescribed Voltaren/Percocet pain medications for low back pain. When said treatments were not effective, she referred her to a pain management specialist, Dr. TZ Chen. See Exhibit 18. On November 18, 2004, Dr. Chen examined the claimant and reported:

As you know, this 44-year-old BiState bus driver has been experiencing left-sided flank pain for the past eight months. She denied any outbreak or injury to the area eight months ago. Without any particular precipitating incidence, she started to experience pain. She described the pain to be located at the left-sided scapular area with radiation around the left-sided flank into the left-sided upper quadrant of the abdomen associated with allodynia, extreme sensitivity, and a burning painful pain. A fine touch to the area can cause excruciating painful sensation. She did not notice any skin outbreaks suggestive of herpes zoster. Over the past few months, the patient has been in constant pain that she has to take hydrocodone 30-40 mg per day. She was also given a trial of Neurontin 300 mg t.i.d. for the past one month. She continued to experience pain that is rated at 9/10. See Exhibit 19.

Dr. Chen's medical history reflected complaints of depression, anxiety, and sleep disturbances, but no delusions, hallucinations, no suicidal ideation. Dr. Chen's clinical impression was sympathetically maintained neuropathic pain, left T12-L1. Possible post-herpetic neuralgia, with subclinical herpes zoster outbreak. See Exhibit 19. He recommended:

W0-22-01 (6-81)

Page 5

The patient may certainly benefit from a trial of diagnostic and therapeutic lumbar sympalleptic nerve blocks, the first of which was performed today without untoward effect. The patient reported dramatic relief following the injection.

OxyContin 40 mg b.i.d.

I increased Neurontin to 600 mg t.i.d. for one month and then Avinza 900mg t.i.d.

Lildoderm skin patch trial. See Exhibit 19.

Dr. TZ Chen performed three (3) sympathetic nerve root blocks over a four (4) month period. Also, he prescribed oxycontin for pain and was actively treating at the time of Dr. Schlafly's February 2005 diagnosis of bilateral carpal tunnel syndrome and right cubital tunnel syndrome. See Exhibit 19. On March 8, 2005, Dr. Chen discharged the claimant from treatment with a diagnosis of lumbar radiculopathy with sympathetically maintained pain. During treatment, he prescribed OxyContin, Hydrocodone, and Neurontin. On that date, he discontinued the OxyContin and continued to prescribe Neurontin, Hydrocodone, and Topamax for pain management. See Exhibit 19.

Current Conditions

The claimant testified that she has difficulty wringing out bath towels, brushing her hair, opening medicine bottles, getting dressed and brushing her teeth. She has trouble picking up and pouring milk from a carton. She tends to drop small items like keys, change, utensils, et cetera, because she has lost feelings in her fingers. She wears wrist splints at night to aid her in sleeping. She does not read books often because it bothers her hands and wrists.

The claimant is right-handed and testified that all movement with her right arm affects her elbow. She has given up her favorite hobby of knitting/crocheting due to her elbow pain. She does not drive anymore due to pain from turning the steering wheel.

The claimant testified that she needs to change positions from sitting/standing every 20 to 30 minutes or so due to back pain. Taking showers are painful due to twisting and turning while bathing. Although she can still prepare her own meals, she has trouble standing up to cook and wash her dishes. The claimant has trouble getting out of bed each morning and even putting on socks and tying her shoelaces.

The claimant takes Aleve whenever her back pain becomes too intense. The claimant has stopped attending church services because she cannot remain seated for that long time. The claimant has difficulty standing up due to knee pain and no longer drives because it is painful to push the accelerator and brake pedals. The claimant wears a knee brace as needed and often uses a cane when walking.

The claimant gets depressed daily due to her constant pain and inability to do the things she used to do, including taking walks, knitting/crocheting and driving cars/busses. She testified that she is not able to afford medications, like Prozac, that would alleviate her depression. The claimant testified that she takes naps often during a day because she has little energy.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

David T. Volarich, D.O.

On December 10, 2007, Dr. Volarich examined the claimant, reviewed her medical records, and took medical history. The claimant reported complaints of right hand and elbow pain, especially with range of motion, bilateral elbows numb with burning sensation when subject to touch or pressure, loss of grip, leading to dropping of items, constant throbbing of wrists, and increased pain in wrists when driving. With respect to the claimant's upper extremities, Dr. Volarich's examination revealed moderate to severe pain with range of motion in elbows, loss of range of motion in elbows, loss of range of motion and grip strength in both hands and wrists, loss of range of motion in elbows and loss of range of motion and grip strength in both hands and wrists. With respect to other maladies, Dr. Volarich found significant low back pain occurring with extension, palpation elicited pain in both sacroiliac joints, and significant loss of flexion and extension.

Dr. Volarich opined that the claimant suffered a 20% permanent partial disabilities to right and left wrists due to non-surgically repaired carpal tunnel syndrome, a 20% permanent partial disabilities to right and left elbows due to non-surgically repaired cubital tunnel syndrome, and added an additional 15% multiplicity factor due to the combination of injuries to both upper extremities. See Exhibit 24.

Dr. Volarich also opined that the claimant suffered a 15% pre-existing permanent partial disability to her lumbosacral spine, due to chronic lumbar syndrome causing back pain and lost motion, and a 20% permanent partial disability to her right knee due to due to a contusion and effusion that required a diagnostic arthroscopy. See Exhibit 24. Dr. Volarich opined that "[T]he combination of her (claimant's) disabilities creates [sic] a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added. See Exhibit 24.

Dr. Volarich opined that the claimant's conditions constitute permanent partial disabilities that are a hindrance to her employment or re-employment and that the combination of the claimant's disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added. See Exhibit 24.

Dean L. Rosen, Psy.D.

On June 1, 2007, Dr. Rosen evaluated the claimant, took a medical history, reviewed her medical records, and conducted psychological tests. Dr. Rosen's medical history revealed that the claimant had treatment for depression in the 1990's and received Prozac as prescribed by her primary care physician and that she suffered from jog stress in 2001. Her MMPI-2 scores "...suggest a long-standing pattern of personality disturbance, with disruptive symptoms as well as problems in functioning and adaptation to the demand of her world. Such individuals display depression, sullen anger, and family marital problems." See Exhibit 23.

Dr. Rosen opined, "...Ms. McMillion might benefit from some further psychiatric treatment to some unspecified degree. Her psychological make-up might make it difficulty [sic]

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

for her to utilize psychological treatment except therapy that is supportive in nature to help her

accept her current limitations and circumstances." See Exhibit 23. Dr. Rosen concluded:

Ms. McMillion gives a long history of medical problems that her records

document, including much complaint of chronic pain for which she has been

treated. Her psychological makeup suggests that she might have focused

on her medical problems instead of her emotional problems though she was

treated with an antidepressant medication in 1998 and 1999. Her

psychological testing suggests that her emotional problems are longstanding

and would pre-date her work-related injuries. At the same time, she appears to

be more acutely symptomatic now; with complaints of depression that are

most likely reactive to her chronic pain from work injuries of 2005, which

were first complained about in October of 2004. Her loss of

employment and current medications that are not work related are also

contributory to her current stress and emotional state.

Following my review of pertinent medical records, interview with Ms.

McMillion and administration of standard psychological tests, it is my

professional opinion (within a reasonable degree of psychological certainty)

that Ms. McMillion suffers several psychiatric disorders. Her personality

disorder would be considered a preexisting condition for purposes of

compensation and would represent a permanent partial disability of 15% of a

whole person. Her depression would be considered both pre-existing and

causally related to her work injuries of 2005 with its resulting chronic pain

and limitations in use of her hands and arms. Her depression represents a

permanent partial disability of 25% of a whole person. Of this 25% disability,

10% would be considered pre-existing and the remaining 15% permanent

partial disability would be considered causally related to her carpel tunnel

syndrome which medical records indicate could be related to repetitive motion

on her job.

Ms. McMillion's psychiatric disorders and injuries can combine with other

medical conditions and work injuries to create impairment and disability that

is higher than the numerical sum of their individual disability ratings. Her

psychiatric injuries impair her work performance and industrial efficiency by

reducing her energy, stress tolerance and ability to get along with others on the

job and adapt to changes in the work environment. Ms. McMillion might benefit

from some further psychiatric treatment to some unspecified degree. Her

psychological makeup might make it difficult for her to utilize psychological

treatment except therapy that is supportive in nature to help her accept her

current limitations and circumstances.

The results of this evaluation lead to the following DSM IV diagnoses:

Axis I Major Depressive Disorder recurrent moderate in severity

Axis II: Personality Disorder NOS, with interpersonal over-sensitivity

WC-22-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

Axis III: Diabetes, High Blood Pressure, Chronic Pain, bilateral carpal tunnel syndrome and right cubital tunnel syndrome by medical record

Axis IV: Problems with finances, access to medical care, and employment as psychosocial stressors.

Axis V: Global Assessment of Functioning: 50 serious symptoms and impairments. See Exhibit 23.

James E. Israel

On April 8, 2008, James E. Israel, a Vocational Rehabilitation Counselor, evaluated the claimant and opined

Rosalyn McMillion is a 47-year-old former bus driver who sustained upper extremities injuries culminating on February 8, 2005. Previously, she had also suffered back and knee ailments (per records). Following the 2005 injuries, Rosalyn attempted but was unable to sustain any work activity with the same or any other employer.

Rosalyn is a younger worker (age 47) with a completed high school education and two years of college. Vocational testing indicated that her manual dexterity speed is very deficient. Rosalyn is clearly unable to return to her past job as a bus driver, car rental agent or security monitor. She has vocational skills that will not [sic] transferable to other occupations within her current physical and mental capacities. Rosalyn would not be able to sustain any gainful work within as defined by the U.S. Department of Labor.

Rosalyn McMillion is disabled from her usual occupation as a bus driver and from related occupations for which she would be qualified by education and experience as a direct or proximal result of the industrial injuries culminating on February 8, 2005. Vocational impairments are indeed identified as having existed prior to February 8, 2005, which would have impeded Rosalyn from performing the essential and marginal duties of any occupation for which she would be otherwise qualified by education and experience. Hence, her inability to resume substantial gainful activity are the results of medically and psychologically determined limitations from both primary and pre-existing industrial injuries or conditions.

Ms. McMillion's diminished overall capabilities makes it quite unlikely she could sustain any substantial gainful or full-time job. The cumulative effects of her physical and mental condition, age of 47, education, work background and the special worksite accommodations required of prospective employers have placed her at an insurmountable disadvantage. Employers in the usual course of selecting job applicants would avoid hiring an individual with Ms. McMillion's overall profile in favor of individuals who are more work ready and able. Her efforts to locate, apply for, obtain, adapt to, and maintain a suitable job would be replete with obstacles. Under these combined circumstances, Rosalyn McMillion cannot compete in the open labor market.

WC-32-01 (6-41)

Page 9

All opinions and recommendations regarding the claimant's employability are totally independent of the requesting agents. It is based upon the reliability and accuracy of the information, testing scores, and research. The above expressed opinions are based upon a reasonable degree of professional certainty. See Exhibit 25.

James M. England, Jr.

On December 19, 2016, Mr. England, a vocational rehabilitation counselor, performed a records review and vocational evaluation. See England deposition, pages 11, 12.

Ms. McMillion is now a middle-aged woman of 56 who had been out of work for over ten years now. She was still a younger worker when she was released by several doctors to go back to work and it is my understanding that she lost her job because of failure to pass a drug test and not because of physical problems per se as determined by the employer. ... Assuming the lack of restrictions up to the point of Dr. Volarich's report, she would appear to be capable of performing her past work. Assuming Dr. Volarich's restrictions, she would be unable to perform her past work, but would not be precluded from some types of alternative work within his restrictions, including some office security type positions and perhaps working as an alarm monitor for a security company. These would be jobs that would not involve repetitive use of the hands, but only sporadic use of them on and off through the day and would offer flexibility with regard to sitting, standing, and moving around. It is my understanding that she has not attempted to try to find work, although she indicated in her deposition that she was interested in doing so. She indicated that up to the point of her hand problem she was still able to work full time and take care of all her household needs. If, therefore, she is totally disabled at this point, it would be my opinion that this would be due to the effect of the last injury in isolation regardless of any pre-existing medical problems. The inability to use her hands repetitively by itself would certainly limit her to very few occupational choices, although it would not rule out employment. See England report, page 17.

SECOND INJURY FUND

"Section 287.220 creates the Second Injury Fund and sets forth when and in what amounts compensation shall be paid from the [F]und in '[a]ll cases of permanent disability where there has been previous disability.'" For the Fund to be liable for permanent, total disability benefits, the claimant must establish that: (1) he suffered from a permanent partial disability as a result of the last compensable injury, and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. Section 287.220.1. The Fund is liable for the permanent total disability only after the employer has paid the compensation due for the disability resulting from the later work-related injury. Section 287.220.1 ("After the compensation liability of the employer for the last injury, considered alone, has been determined ... the degree or percentage of ... disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined..."). Thus, in deciding whether

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

the Fund is liable, the first assessment is the degree of disability from the last injury considered

alone. Any prior partial disabilities are irrelevant until the employer's liability for the last injury

is determined. If the last injury in and of itself resulted in the employee's permanent, total

disability, then the Fund has no liability, and the employer is responsible for the entire amount of

compensation. ABB Power T & D Company v. William Kempker and Treasurer of the State of

Missouri, 236 S.W.3d 43, 50 (Mo.App. W.D. 2007).

The test for permanent, total disability is the worker's ability to compete in the open labor

market. The critical question is whether, in the ordinary course of business, any employer

reasonably would be expected to hire the injured worker, given his present physical condition.

Id. at 48. The courts have focused on the purposes and policies furthered by the statute:

The proper focus of the inquiry as to the nature of the prior disability is not

on the extent to which the condition has caused difficulty in the past; it is on the

potential that the condition may combine with a work-related injury in the future

so as to cause a greater degree of disability than would have resulted in the

absence of the condition. That potential is what gives rise to prospective

employers' incentive to discriminate. Thus, if the Second Injury Fund is to serve

its acknowledged purpose, "previous disability" should be interpreted to mean a

previously existing condition that a cautious employer could reasonably perceive

as having the potential to combine with a work-related injury so as to produce a

greater degree of disability than would occur in the absence of such condition. A

condition satisfying this standard would, in the absence of a Second Injury Fund,

constitute a hindrance or obstacle to employment or reemployment if the

employee became unemployed. Wuebbeling v. West County Drywall, 898

S.W.2d 615, 620 (Mo.App. E.D. 1995).

Section 287.220.1, RSMo 2000, contains four distinct steps in calculating the

compensation due an employee, and from what source:

1. The employer's liability is considered in isolation- "the employer at the time of the

last injury shall be liable only for the degree or percentage of disability which would

have resulted from the last injury had there been no pre-existing disability."

1. Next, the degree or percentage of the employee's disability attributable to all injuries

existing at the time of the accident is considered;

1. The degree or percentage of disability existing prior to the last injury, combined with

the disability resulting from the last injury, considered alone, is deducted from the

combined disability; and

1. The balance becomes the responsibility of the Second Injury Fund. Nance v.

Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

Missouri courts have routinely required that the permanent nature of an injury be shown

to a reasonable certainty, and that such proof may not rest on surmise and speculation. Sanders

v. St. Clair Corp., 943 S.W.2d 12, 16 (Mo.App. S.D. 1997). A disability is "permanent" if

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

"shown to be of indefinite duration in recovery or substantial improvement is not expected."

*Tiller v. 166 Auto Auction*, 941 S.W.2d 863, 865 (Mo.App. S.D. 1997).

The first step to analyze the case requires a determination of the claimant's permanent disability from the 2005 occurrence. The claimant had filed a Claim for Compensation for injuries to both hands and her right elbow. Based on the entire record, the claimant suffered a compensable work-related injury in 2005 resulting in a 20% permanent partial disability to her right elbow (42 weeks) as reflected in the claimant's settlement in her settlement with the Claim against her employer, approved on November 21, 2006. Judicial notice of the claimant's settlement with her employer in the Division's records is taken.

The difficult issue in this case arises, because the claimant obtained forensic medical evidence contending the claimant suffered a 20% permanent partial disability from cubital tunnel syndrome to her left elbow (42 weeks), a 15% permanent partial disability to each wrist from bilateral carpal tunnel syndrome, (52.5 weeks), and a 15% permanent partial disability due to depression (60 weeks), all pertaining to her February 2005 occurrence with her employer. This was based on evaluations that occurred long after the claimant settled her claim with her employer. The psychological evaluation was conducted on June 1, 2007, by Dr. Rosen, a psychologist, and the other medical evaluations were from an examination on December 10, 2007, by Dr. Volarich. Based on his December 10, 2007, evaluation, Dr. Volarich opined that the claimant was at maximum medical improvement for her disabling conditions. See Dr. Volarich deposition, page 23. The forensic evaluations differ from the claimant's settlement with her employer on November 21, 2006, and from many of the allegations in her multiple claims for compensation.

These are important questions in this case, because they form the foundation of the Claim against the Second Injury Fund. On November 21, 2006, a settlement with the employer on the February 2005 injury, which is the subject of this litigation, was approved "based upon approximate disability of 20% of right elbow." The settlement recited that "the settlement was in accordance with the rights of the parties" and "was not the result of undue influence or fraud; the employee fully understands his/her rights and benefits; and the employee voluntarily agrees to accept the terms of the agreement." The document was signed by the claimant and her legal counsel. The forensic medical evaluations were conducted many months after the settlement was approved. It is difficult to conclude that the claimant's other conditions resulted from the occurrence with the employer in this February 2005 case. The more logical conclusion is that the substantial additional disabilities manifest after the 2005 occurrence. It is particularly interesting to note the claimant did not even file a Claim against the employer for disabilities to her left elbow or for psychological conditions. In addition, Dr. Schalfly examined the claimant just before the date of injury and ordered electrical tests and found no injury to the claimant's left elbow. The claimant apparently developed severe disabling conditions after the February 2005 date of injury.

Turning to the claimant's pre-existing disabilities, at the time the February 2005 injury was sustained, the claimant had an 8% pre-existing permanent partial disability to the low back (32 weeks), a 16% pre-existing permanent partial disability to the right knee (25.6 weeks), a 10% pre-existing permanent partial disability due to depression (40 weeks), and a 15% pre-existing permanent partial disability due to a personality disorder (60 weeks). All of the forensic

WCC-32-311 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

evidence is clear that the claimant's pre-existing disabilities combined with the disability from the 2005 work related injury to create an overall greater disability than the simple sum of the individual disabilities. See Dr. Volarich deposition.

The credible evidence establishes that the February 2005 injury, combined with the pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. The claimant testified credibly about significant ongoing complaints associated with these injuries. Based on the evidence, the permanent partial disability from the last injury combines with the pre-existing permanent partial disability to create an overall disability that exceeds the simple sum of the permanent partial disabilities by 20%.

Therefore, the Second Injury Fund bears liability for 39.92 weeks of permanent partial disability benefits.

On the other hand, numerous forensic experts have examined the claimant's situation and concluded that she is now unemployable in the open labor market. Since the evidence is clear the claimant is now totally disabled due to her vast array of medical conditions, the question of the claimant's disability from her work-related injury is significant. Hypothetically, if the claimant's severe disabilities to her wrists and her elbows, and her disabling psychological condition resulted from her 2005 work-related occurrence, then Mr. England's evaluation would be difficult to deny:

She indicated that up to the point of her hand problem she was still able to work full time and take care of all her household needs. If, therefore, she is totally disabled at this point, it would be my opinion that this would be due to the effect of the last injury in isolation regardless of any pre-existing medical problems. The inability to use her hands repetitively by itself would certainly limit her to very few occupational choices, although it would not rule out employment. See England report, page 17.

The remainder of the claimant's forensic evidence concluded the claimant was permanently and totally disabled due to a combination of the disabling conditions, which is certainly true, but fails to address the effect of the loss of the claimant's inability to use her hands repetitively alone given her age, education, and past relevant work history. Certainly, the claimant's pre-existing permanent partial disabilities do not make her more employable, but Mr. England was the only forensic expert to evaluate the effect of the claimant's post 2004 disabilities and the effect on the claimant's employability.

One other aspect of the case requires analysis. The defense objected to Dr. Rosen's evaluation of the claimant's psychological conditions:

According to §287.190.6.(2), permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." Dr. Rosen is not a physician. He is neither a Medical Doctor (M.D.) nor a Doctor of Osteopathy (D.O.). Rather, he is a Doctor of Psychology (Psy.D). Consequently, his ratings must be disregarded. See Defense brief.

WC-32-01 (6-81)

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosalyn McMillion

Injury No.: 05-036949

If the date of injury were on or after August 28, 2005, the defense point would certainly

be well taken. That was the effective date of the statutory provision referenced by defense

counsel. If the provision is substantive, generally it is not to be applied retroactively to cases that

predated the newly enacted provision. If the provision is procedural, then the newly enacted

provision can be applied retroactively. Since the date of injury predates the statutory provision,

the more reasonable approach is to conclude that the provision was not intended to be

retroactively applied given not provision compelling a retroactive application.

CONCLUSION

Based on the entire record, the Second Injury Fund is liable to the claimant for 39.92

weeks of additional permanent partial disability benefits. The attorney for the claimant is entitled

to an attorney fee of 25% of this award.

I certify that on 3-25-21

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 __________________________

My

_________________________

Made by:

_________________________

Edwin Kohner

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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