Carol Gourley v. Cox Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-031701

Employee: Carol Gourley

Employer: Cox Medical Center

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial

Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having

reviewed the evidence and considered the whole record, the Commission finds that the

award of the administrative law judge is supported by competent and substantial evidence

and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to

§ 286.090 RSMo, the Commission affirms the award and decision of the administrative

law judge dated November 5, 2020. The award and decision of Chief Administrative Law

Judge, Victorine R. Mahon issued November 5, 2020, is attached and incorporated by this

reference.

The Commission further approves and affirms the administrative law judge's allowance

of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 15th day of December 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the award of the administrative law judge (ALJ) should be reversed.

The ALJ erred in not finding that employee's back injury is medically and causally related to her January 13, 2007 primary injury (2007 injury). Employee injured both knees and her back as a result of her 2007 injury. Employer/insurer accepted employee's injuries and deemed the 2007 injury to be compensable. Employer/insurer provided employee with limited medical care for her left knee, and did not provide any medical treatment for employee's back injury. I believe that the ALJ erroneously relied on Dr. Michael Nogalski's opinions when such opinions were based on information that was either incomplete, inaccurate or that she completely ignored to get to his desired conclusion.

I believe that Dr. David Volarich was the most credible and reliable expert on the issue of whether the 2007 injury was the prevailing factor in employee's injuries to her left knee, right knee, back and need for treatment. I further find the opinions of psychological expert Dr. Dale Halfaker and vocational expert Mr. Phillip Eldred to be persuasive.

The ALJ erred in finding that employee was not entitled to payment of her unpaid medical bills in the amount of $\ 173,896.25. Employee's medical bills for treatment related to the 2007 injury total $\ 179,546.23. Employer/insurer have paid medical bills totaling $\ 5,649.98, excluding the cost of their multiple independent medical examinations and a vocational evaluation. The only testimony regarding the medical bills came from Dr. Volarich. Dr. Volarich testified that the medical bills employee incurred for her 2007 injury were fair, reasonable, and customary. The $\ 179,546.23 in medical bills were directly related to her 2007 injury. In addition, the treatment incurred was necessary to cure and relieve the effects of her 2007 injury. Therefore, I believe that employee is entitled to payment for medical bills relating to employee's injury totaling $\ 173,896.25.

I believe that the ALJ erred in finding that employee was not entitled to temporary total disability (TTD) totaling $\ 109,574.64. Employee is owed TTD benefits from June 30, 2007 through March 31, 2008 (while she was continuing to receive medical treatment for her left knee and back). Employee began working at The Gardens on April 1, 2008. She could only perform her job duties at The Gardens because they provided significant accommodations to her. Despite all of the accommodations, she still could not do the work and was fired.

Employee never worked again after leaving work with The Gardens on April 1, 2010. From April 2, 2010 to November 27, 2016 employee is owed TTD benefits for the time period she was continuing to receive medical treatment for her work injuries and was physically unable to work until she achieved maximum medical improvement.

Employee is owed TTD benefits for the time periods of June 30, 2007 through March 31, 2008 and April 2, 2010 through November 27, 2016.

Employee received 54 weeks of unemployment benefits during this time period. The time periods for which employee is owed TTD benefits totals 387 weeks and two (2) days before excluding the 54 weeks for which employee received unemployment benefits. After excluding the 54 weeks of unemployment benefits, employee is owed 333 weeks and 2 days of TTD benefits.

The ALJ should have found employee to be entitled to permanent and total disability (PTD) benefits. Employee continues to experience difficulties from her injuries and has not been employed anywhere since being fired from her job at The Gardens on April 1, 2010. Employee is PTD. Employee testified that she is unable to do much. Employee is limited by her injuries; she lies down during the course of every day to alleviate the pain in her left knee and back.

Employee's medications interfere with her cognitive abilities, affect her alertness, and compromise her motor skills. Her activities are severely limited by her injuries. Dr. Dale Halfaker opined that the 2007 injury was the prevailing factor in the development of an adjustment disorder with depression and anxiety. Dr. Halfaker testified that employee was at maximum psychological improvement for the work-related psychological work disorders at the time of his September 12, 2017 psychological assessment report. Dr. Halfaker opined that employee was 10\% PPD BAW for the psychological injuries as a result of the 2007 injury.

Dr. Halfaker opined that, when the adjustment disorder for the 2007 injury was taken into account with the psychological disability for anxiety, depression and chronic PTSD that pre-existed the 2007 injury, it could result in employee being PTD. Dr. Halfaker opined that the combination of her disability from the work injury and the pre-existing disability that together totals 19\% PPD BAW suggests serious problems to the degree that, more likely than not, employee would be unable to keep a job. Dr. Halfaker opined that employee approaches the threshold of PTD psychologically (not considering her physical disabilities) when combining her pre-existing psychological disability and the psychological disability resulting from the 2007 injury.

Vocational expert Mr. Eldred noted that employee complained of pain in her back, neck (tension from pain), peripheral neuropathy, migraines, left knee, depression, and memory and cognitive problems. Mr. Eldred testified that employee had numerous work restrictions from numerous doctors as a result of the work injuries, and opined that employee was PTD as a result of her injuries, and their sequela, sustained from the 2007 injury.

Drs. Shannon Kelly, Christopher Miller, Shane Bennoch, Katie Weatherhogg, Volarich, and Halfaker all assigned medical restrictions for employee. All six physicians assigning medical restrictions in this case, assigned restrictions for employee that are at the less than sedentary work level. It is important to note that three of the six

- 3 -

physicians, Drs. Kelly, Miller, and Weatherhogg, assigning medical restrictions were treating physicians in this case.

The ALJ erred in denying employee's claim for future medical care. Dr. Halfaker opined that employee will require ongoing medications such as anxiolytic and antidepressant medications, as the need for these medications flow from the 2007 injury. Dr. Volarich testified that employee would need additional treatment, including but not limited to narcotics and non-narcotic medications, muscle relaxants, physical therapy, and similar treatments to provide relief for her symptomatic complaints.

The ALJ should have found that the employee did not reach maximum medical improvement until November 28, 2016. Employee injured her back in the 2007 injury, and required ongoing treatment. Employee did not achieve maximum medical improvement until Dr. Volarich placed employee at maximum medical improvement on November 28, 2016.

For these reasons, I would find employee's back injury to be medically and causally related to her 2007 injury and that employer/insurer is liable for employee's PTD, past medical expenses and future medical treatment. Because the majority of the Missouri Labor and Industrial Relations Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

Claimant: Carol Gourley

Injury No. 07-031701

Dependents: N/A

Employer: Cox Medical Center

Additional Party: Treasurer of Missouri

as custodian of the Second Injury Fund.

Insurer: Self Insured

Thomas McGee LC (TPA)

Hearing Date: September 10, 2020

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: January 13, 2007.
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene County, 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 was contracted: Claimant fell on ice outside of the building where she worked.
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: Bilateral knees.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

1. Nature and extent of any permanent disability: 30 percent of the left knee (48 weeks).

1. Compensation paid to date for temporary disability: $2,094.07.

1. Value necessary medical aid paid to date by employer/insurer? $9,668.62.

1. Value necessary medical aid not furnished by employer/insurer? None.

1. Claimant's average weekly wages: 492.94.

1. Weekly compensation rate: 328.63.

1. Method wages computation: By agreement of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

30 percent permanent partial disability of the left knee (48 weeks x 328.63)

15,774.24

For past medical expenses

- Mileage reimbursement for IMEs with Dr. Nogalski: 348.60

For Temporary Total Disability

- 10 weeks x 328.63 (June 30, 2007 through September 7, 2007): $3,286.30

**TOTAL:** $19,409.14

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Newman Law Firm.

Claimant Carol Gourley appeared with her attorney Jennifer Newman for a final hearing before the undersigned Administrative Law Judge on September 10, 2020, in Springfield, Missouri. Attorney Karen Johnson appeared on behalf of Cox Medical Center, a self-insured entity, and Thomas McGee LC, its third party administrator (TPA). Assistant Attorney General Skyler Burks represented the Second Injury Fund. The parties agreed to certain facts and narrowed the issues, as follows:

1) On or about January 13, 2007, Cox Medical Centers was an employer operating subject to the Missouri Worker's Compensation Law, and during this time was an authorized self-insurer. 2) At this same time, Carol Gourley was an employee of the above-named employer, and was working under and subject to the Missouri Workers' Compensation Law. 3) The alleged injury occurred in Springfield, Greene County, Missouri. There is no challenge to jurisdiction or venue. 4) Claimant's average weekly wage was $\ 492.94, yielding a compensation rate of $\ 328.63 for all purposes. 5) Employer paid temporary total disability benefits in the amount of $\ 2,094.07. 6) Employer paid medical benefits in the amount of $\ 9,668.62.

The issues which were to be resolved by hearing included:

1) Are the medical conditions for which Claimant seeks benefits medically and causally related to the work for Employer? 2) Is Claimant entitled to temporary total disability totaling $\ 109,574.64 (333 2/7 weeks)?

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

3) Is Claimant entitled to payment of medical expenses, including bills in the amount of $173,896.25?¹

4) What is the nature and extent of disability as against Employer?

5) What is the date of maximum medical improvement?

6) Is claimant entitled to future medical treatment?

7) What is the liability of the Second Injury Fund?

8) Has a statute of limitations run with respect to the Second Injury Fund?

EXHIBITS

In addition to live testimony, the following exhibits were offered and admitted, except as noted:

Claimant's Exhibits

1. Medical Records (A through Q) - (Objection by SIF to Ex. 1Q is sustained)
2. Deposition - Dr. David Volarich
3. Deposition - Dr. Dale Halfaker
4. Curriculum Vitae - Phillip Eldred
5. Vocational report - Phillip Eldred
6. Notice of commencement/termination of compensation
7. Report of injury for January 13, 2007
8. Police report (June 19, 1998)
9. Recorded statement - Carol Gourley (May 3, 2007) - (Objection by the SIF sustained)

Employer's Exhibits

A. Deposition - Dr. Michael Nogalski

B. Deposition - Benjamin D. Hughes

C. Deposition - Carol Gourley (September 24, 2013)

D. Deposition - Carol Gourley (January 11, 2018)

E. Confidential report - Lester E Cox Medical Center (January 16, 2007)

F. Medical payments

G. Indemnity payments

H. MRI report (January 2004)

Second Injury Fund Exhibits

I. Claim - 07 - 031701 (Amended 4/24/09)

II. Claim - 07 - 031701 (Original 11/1/07)

III. Claim - 07 - 031701 (Amended 5/1/17)

IV. Answer - SIF (Original 5/23/17)

¹ Employer stipulated that it owes medical mileage for IMEs to Dr. Nogalski but otherwise denies reimbursement for medical treatment.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

Carol Gourley (Claimant) was an LPN for Employer Cox Medical Center in its urgent care facility on Walnut Lawn in Springfield, Missouri. On January 13, 2007, Claimant slipped on ice in the medical facility's parking lot while going to work. She mostly impacted her left knee and bumped her right knee on the ground. Although her initial report to her supervisors mentioned only her knees, she contends that her back also was injured in the fall. Following the fall, Claimant did not seek immediate medical care. Rather, she took approximately a month off work, primarily to care for her terminally ill mother. It was not until March 2, 2007, almost two months post-accident, that Claimant first consulted her personal physician, Dr. Shannon Kelly regarding her injuries. There was no mention of falling on ice in this record.

Dr. Kelly already had been treating Claimant for PTSD and anxiety as a result of prior domestic issues. In addition to her psychological problems, Claimant acknowledges that she had a myriad of preexisting medical issues including her neck, thyroid, bilateral shoulders, migraine headaches, peripheral neuropathy, chronic bronchitis, edema in her lower extremities, frequent pneumonia, and morbid obesity. She also had been diagnosed with degenerative changes in her back. Claimant is 5-5" tall. She always has weighed between 200 and 290 pounds. Still, Claimant was adamant that these conditions did not adversely impact on her work.

On March 2, 2007, Dr. Kelly noted Claimant's complaints of pain in the left knee and back due to having to stand a lot and lean to the right. Nothing in the March 2, 2007 medical record attributed Claimant's pain to a fall at work. The physician found nothing significantly wrong, but took Claimant off work and prescribed pain relievers and other medications. He subsequently cleared Claimant to return to work effective April 3, 2007.

Employer then sent Claimant to Dr. Cary Bisbey at Cox Occu-Med. Claimant complained of left and right knee pain and left hip pain. She did not specifically complain of back issues. X-rays at that time were negative. Dr. Bisbey diagnosed Claimant with a right knee contusion and left knee and hip strain from the slip and fall. He ordered physical therapy and modified work, which Employer accommodated. Claimant testified at the Final Hearing that her right knee was better by April 2007 and that there was no mention in any medical records of right knee issues following this date. While she purported to have some stiffness that was ongoing, she acknowledged this was not a condition for which she had sought treatment. On April 6, 2007, there is a record that Claimant's left knee was still tender medially, but there was no suggestion that any back complaints needed to be addressed.

A representative of Corporate Claims interviewed Claimant on May 3, 2007. At that time, Claimant was asked what body parts were injured in the slip and fall. Claimant said within a few hours after the fall she had a visible bruise on her left knee. Claimant was asked, "What body parts exactly were injured during the fall?" Claimant responded, "Both knees." When asked if Claimant was treating for any other body part, she responded:

CG: I'm, I'm trying to think of how to phrase this. The pain goes up the thigh interior and posterior, into my pelvic hip up to my sacrum.

DD: Okay. Alright.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

CG: It jarred all the way up to my lower back.

(Ex. 9).

Additional Treatment

Despite this mention of pain "up to" her lower back in the recorded statement, complaints and treatment continued to focus primarily of the left knee and left hip. There is little mention of back pain in the medical records until December 2007.

Dr. Bisbey ordered an MRI of the right knee and referred Claimant to Dr. Wester, an orthopedist. The MRI performed on May 7, 2007, revealed 1) a frayed inferior articulate surface of the posterior horn of the medial meniscus; 2) a full thickness cartilaginous defect involving the weight bearing surface of the medial femoral condyle, and 3) mild edema in the posterior patellar cartilage medially. The ACL and PCL were intact. On May 22, 2007, Dr. Wester said he was unable to relate the defect noted on the MRI to the area of Claimant's discomfort. He believed Claimant had suffered a symptomatic contusion which would resolve with additional time. He continued work restrictions.

Claimant continued to follow-up with Dr. Bisbey, but the physician was concerned that Claimant was malingering given the MRI and Dr. Wester's opinion. On June 29, 2007, Dr. Bisbey released Claimant from his care with the diagnosis of left knee strain, resolved. Dr. Bisbey opined that any continued problems were due to chronic pre-existing arthritis and not the strain that occurred in January 2007. He told Claimant to follow-up with her private physician. Claimant believed she could not work and Employer could not accommodate her job duties any further, so Claimant was terminated. Claimant did not work anywhere from June 30, 2007 until March or April 2008.

Unauthorized Medical Treatment

Claimant returned to Dr. Kelly on July 6, 2007, who provided Claimant with a referral to Dr. Christopher Miller, a board certified orthopedic surgeon, for a second opinion. There is no mention of low back pain at this time. On July 18, 2007, Dr. Miller diagnosed left knee internal derangement with symptoms coming from a full thickness defect in her medial femoral condyle and possibly from tearing in the medial meniscus. Dr. Miller reported that he "was very careful to point out to her that we may fail to find the etiology of her pain, and she showed good understanding." (Ex. 1, part P/16).

On July 20, 2007, Dr. Miller performed an arthroscopic partial medial and lateral meniscectomies, and a chondroplasty of the tibial plateau with no complications. Dr. Miller described the operation, as follows: "There was a small tear in the avascular zone of the root of the lateral meniscus....She did have fairly significant grade III changes with fissuring on the tibial plateau." (Ex. 1, part P/16). Claimant admitted that she did not provide this opinion to her employer or request more treatment prior to undergoing the surgery or follow-up by Dr. Miller.

In his July 26, 2007 medical record, Dr. Miller, the treating surgeon, reported that Claimant was feeling better following her left knee partial medial and lateral meniscectomies. He said, "I do feel that the arthroscopic findings were consistent with her described injury of having fallen. I did discuss this with her today." (Ex. 1, P/16). On August 17, 2017, Dr. Miller reported that Claimant had good function in her left knee, good range of motion, and was doing well. He agreed with the physical therapist to keep Claimant in therapy for six more weeks. Claimant completed physical therapy from July 27 to September 7, 2007.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

for her left knee. She consistently reported improvements within the knee, overall strength, range of motion in the knee. Claimant was to return as needed, although she never returned to Dr. Miller.

Months later, on December 17, 2007, Claimant returned to Dr. Kelly with the following complaints:

**HISTORY OF PRESENT ILLNESS:**

**History Source:** patient

Ms. Gourley is here with her husband for two reasons. First is a constant right lower back pain, worse after her physical therapy for her knee. Has had for 3 months. No past history of same. Working on her hip and muscle stretches in PT causes pain next to the area but the area of pain in question hurts all the time. Going upstairs and walking are painful with it. **No past history of an injury** that she knows of. **No areas of pain in her lower extremities**, no problems with new areas of weakness and no new areas and anesthesia.

She was recently seen on 12/3/7 by my partner for a sinusitis infection. She finished her prescribed course of Augmentin and did improve with that that is now having some discolored rhinorrhea some more sinus area pressure. No fever or cough or shortness of air.

**No other complaints at this time** [emphasis added].

(Ex. 1, G/7). Claimant subsequently continued to treat with Dr. Kelly for chronic low back pain. It is significant that Claimant denied any injury to her back and had no lower extremity complaints.

In March or April 2008, Claimant began working for The Gardens Extended Care Facility as a Director of Nursing. At this assisted living facility, Claimant oversaw a staff of nurses and the residents' care. The Gardens provided accommodations to Claimant, allowing her to take a two-hour lunch to rest before working a portion of the next shift. Prior to working at The Gardens, Claimant had been taking 5 mg of Oxycodone every four to six hours. During her employment at The Gardens, Dr. Kelly doubled the dosage. This was in addition to muscle relaxers and Ativan every four hours. Claimant said in the evenings after work she also would lie down. Despite these subjective complaints of pain and use of narcotic medication, the objective medical evidence from a May 10, 2008 MRI revealed only mild degenerative disk disease and mild foraminal disc bulges, but no focal disc herniation or significant stenosis.

When Claimant returned to Dr. Kelly on December 19, 2008, with the chief complaint of sinus pain, she also complained of increased lower back pain. She indicated the left knee pain was improved. Dr. Kelly noted tenderness to palpation in the lumbosacral region and paraspinous muscles bilaterally. Subjectively decreased sensation to light touch in her left inner thigh and lower calf region compared to the right was also noted on physical examination. Dr. Kelly provided a referral to pain management.

At the initial pain management consultation on January 14, 2009, which was two years after the work accident in January 2007, Claimant reported to Dr. Sadie Holland that she had left leg pain and low back pain that radiated into the left posterior thigh, groin and lateral thigh. She described the onset as one to one and one-half years previous. Dr. Holland diagnosed Claimant with lumbar spondylosis and sacroiliitis and began a regiment of left sided L4-5 lumbar epidural steroid injections. Claimant reported significant relief from the injections, although the sacroiliitis was unchanged.

On July 6, 2009, Claimant returned to Dr. Kelly for a routine follow up. Claimant reported improvement following pain management, "but then fell in her garden and fell one other time" and both incidents set off

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

her pain again (Ex. 1, H/8). Claimant denied any pain down the legs and no new numbness or weakness in her lower extremities.

Claimant returned to pain management on September 16, 2009, this time reporting a return of pain in her left hip and leg and the right side of her lower back. She noted the pain has been slowly coming back over the past month, but had really increased over the past three weeks. Dr. Holland noted Claimant's lumbar spondylosis had deteriorated. Dr. Holland continued to perform ESIs. A bilateral occipital nerve block was performed and Dr. Holland scheduled bilateral L4-5 and L5-S1 facet joint injections, which was noted to produce a significant decrease in pain and complaints. On December 3, 2009, Claimant had a normal physical examination and she was released to return on an as-needed basis given her significant reduction in pain and a restoration in her overall function.

Less than three months later, on February 23, 2010, Claimant returned to Dr. Holland again with complaints of pain in her low back, left hip and left leg that was tingling all over. After performing a left L4-5 lumbar ESI with no improvement, Dr. Holland ordered an MRI of Claimant's pelvis and lumbar spine and discussed the potential for a spinal cord stimulation.

In April 2010, Claimant lost her job at The Gardens. Claimant admitted her employer was unhappy with her work performance and believed she was missing too much work.

On April 28, 2010, Claimant presented to Dr. Chad Morgan for a second opinion. Claimant reported low back pain with intermittent radiation to the left hip extending to her lateral leg. She further reported a three year history of low back pain following a slip and fall. This differs from the timeline of Claimant's low back pain that was provided to Dr. Holland. It differs from the statement to her primary care physician in December 2007, in which she had no complaints with the knee and knew of no injury to her back. Moreover, Claimant had a normal physical examination. An MRI, however, showed evidence of multilevel degenerative disc disease and spondylosis that was worse at L4-5, but without high grade neural compression. Dr. Morgan diagnosed Claimant with low back pain and mild left hip and L5 pain. He referred Claimant to Dr. Holland for a spinal cord stimulator trial. Following a successful trial, a permanent dorsal epidural spinal cord stimulator was implanted on September 3, 2010. Following the procedure, Claimant's physical examinations were noted to be normal. She was released from Dr. Morgan's care on December 20, 2010. Claimant returned to Dr. Kelly on April 19, 2011, at which time Claimant had no lumbar or sacral paraspinous muscle spasms. She had normal strength in the legs.

Eight months later, Claimant saw Dr. Katie Weatherhogg on December 28, 2011, for an acupuncture consult. Dr. Weatherhogg found that Claimant had a normal range of motion with flexion, no gross instability or subluxation at the lumbar spine, no tenderness to palpation over the lumbar spine, and normal muscle strength and muscle one within the knees. Despite these normal findings, Dr. Weatherhogg recommended a trial of medical acupuncture for pain relief, tension and PTSD. Claimant received 11 acupuncture treatments from January 11, 2012 through October 1, 2012.

On July 18, 2012, Dr. Kelly provided correspondence stating that she had treated Claimant for ongoing issues with the left knee and lumbar back since a fall during the ice storm of 2007. Dr. Kelly opined that Claimant was permanently and totally disabled due to her chronic pain and the exacerbation of her pain with any physical exertion. Dr. Kelly said Claimant will require ongoing pain management.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

Likewise, in support of Claimant's application for disability, Dr. Weatherhogg wrote on October 3, 2012, that she had been treating Claimant for chronic low back pain. She said Claimant was limited in her mobility, ability to perform ADLs, or to participate in prolonged sitting due to her pain. She believed Claimant's chronic lumbar pain impaired her from returning to the work force. Dr. Weatherhogg did not attribute the low back pain to a slip and fall event in January 2007.

On January 23, 2013, an electrodiagnostic study revealed no evidence of peroneal neuropathy bilaterally nor evidence of lumbar plexopathy or lumbar radiculopathy. Despite this objective test result, Dr. Weatherhogg's assessment after the studies was peripheral neuropathy, unchanged hip pain, chronic pain syndrome, chronic and deteriorated lumbar pain, and deteriorating bilateral leg pain. Dr. Weatherhogg continued to provide acupuncture treatment to Claimant on a near monthly basis through March 6, 2014. As Claimant's treatment progressed, however, she began focusing her complaints on headaches, migraines, neck pain, shoulder pain and focal dystonia that were not attributed or related to the slip and fall event. Dr. Weatherhogg's final diagnoses included focal dystonia, dermatitis due to drugs and medications, chronic migraine, and chronic pain syndrome. Additionally, Claimant's past medical history noted endometriosis, a back injury and jaw injury which both equated to chronic pain, PTSD, pneumonia in 2004, as well as anxiety and depression.

Similarly, the medical attention Claimant received from Dr. Kelly through April 2, 2015, began focusing away from the low back to other issues, as Dr. Kelly noted no muscle spasm within the lumbar or sacral paraspinous muscle region and found normal strength within the lower extremities through these visits. Claimant was referred to Dr. Papsdorf for evaluation of peripheral neuropathy.

Independent Medical Opinions

Dr. Michael Nogalski, a practicing board certified orthopedic surgeon, performed Independent Medical Evaluations (IMEs) of Claimant on June 17, 2008, and again on December 4, 2019. He testified by deposition on June 8, 2020.

During the June 17, 2008 physical, Dr. Nogalski noted some trace effusion and mild/minimal tenderness with patellofemoral compression over the anterolateral knee; however, Claimant's range of motion within the knee was full and there was normal strength around the knee. Ligament stability was intact and meniscal signs were negative. After his review of x-rays and the MRI findings of May 7, 2007, Dr. Nogalski concluded that the changes he saw can be degenerative in nature.

Similarly, Dr. Nogalski said Claimant had a relatively normal examination of her lumbar spine. While Claimant exhibited some generalized tenderness in the lower lumbar spine, she had flexion to about 80 - 90 degrees in extension and 40 degrees side to side bending.² There was a normal neurovascular exam in both lower extremities, and normal muscle strength around her hips and lower extremities. There was no muscle spasm and Claimant showed no signs of abductor muscle weakness around the hips or low back. In fact, Claimant's showed full range of motion within the bilateral hips.

By history, Dr. Nogalski diagnosed Claimant with a left knee contusion. He saw no specific findings to suggest a distinct direct blow injury. He believed Claimant's fall was not the prevailing factor in causing the left knee condition and the need for the surgery performed by Dr. Miller. In that regard, Dr. Nogalski

² During her live testimony at the final hearing, the Administrative Law Judge observed Claimant drop her facial mask and notepad. She bent over the side of the witness chair and retrieved both items without any apparent difficulty.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

opined the prevailing factor was most likely related to some general aging issues. He also found Claimant to be at maximum medical improvement. She needed no additional medical treatment. Dr. Nogalski found no permanency with respect to the injury of January 13, 2007. In regard to the low back, Dr. Nogalski noted that it is not clear at all in the records provided that Claimant had any specific complaint of spine problems or any specific thread of complaints that would suggest she had an injury to her low back from the fall in January 2007.

Dr. Nogalski issued an addendum opinion dated May 5, 2010, following a review of additional medical records and Dr. Shane Bennoch's opinion. Dr. Nogalski said Dr. Bennoch's report and findings that the January 2007 event was the prevailing cause for the injuries to the left knee and low back was flawed. He said Dr. Bennoch generalized events without defining any temporal relationship that linked problems to the claimed January 2007 event. Moreover, Dr. Nogalski expressed surprise that as a neonatologist, Dr. Bennoch would even opine on adult problems and complications, specifically orthopedic issues.

In reviewing the MRI of the lumbar spine dated May 10, 2008, Dr. Nogalski opined that the changes could have been caused by normal wear-and-tear as opposed to a traumatic event when considering Claimant's weight, height, and body habitus. Overall Dr. Nogalski opined that when reviewing the records, it does not appear that Claimant complained of specific back problems. He noted that Claimant probably has some lumbar stenosis and lumbar spondylosis, which would be the prevailing factor in her current back complaints. He did not believe Claimant sustained a specific back injury around January 13, 2007. To support his opinions and conclusion, Dr. Nogalski noted that while there were references to back pain, nothing ascribed such pain to a specific injury. Moreover, Claimant's physical therapy notes from 2007 did not reveal any specific mention of back problems nor were complaints of back pain noted on pain diagrams. Lastly, Dr. Nogalski noted that Claimant did not receive any real treatment for "back pain" until a visit with Dr. Holland on January 14, 2009, which was about two years from the date of the slip and fall. Dr. Nogalski said Claimant was at maximum medical improvement and did not require any further treatment with respect to the January 13, 2007 claim.

Finally, Dr. Nogalski discussed his Independent Medical Evaluation on December 4, 2019, during which Claimant reported pain emanating from her low back into the buttock and hip and groin area. She also reported pain down into her left inner thigh and the calf, and that her left leg goes numb while she stands. She further reported that she cannot hyperextend her left knee and the knee is "totally eclipsed" by the pain in her back. Claimant voiced no right knee complaints at the time of the evaluation. On physical examination, Dr. Nogalski noted that Claimant has full extension of her left knee and that her flexion was to about 125 degrees. He opined that her flexion is limited due to her body size and habitus rather than any specific capsular tightness. The patellar tracking was satisfactory and her meniscal signs were negative. Overall, Claimant has normal stability within the left knee with some complaints of pain over both the anterior and posterior of the knee.

Dr. Nogalski concluded that Claimant had a normal right knee. She had full extension, no effusion and range of motion of 0-125 degrees. The lumbar spine did not show a distinct area of muscle spasm. Dr. Nogalski testified that this was a significant objective findings because it indicated there is not a tightening of the muscles to support the back. Claimant was also more painful in the buttock musculature rather than the spine itself. She could also bend at the waist to about 90 degrees and could bend to both sides to about 30 degrees. Dr. Nogalski testified that the range of motion testing within the lumbar spine was fairly normal, especially given her body habitus. Additionally, Dr. Nogalski noted that Claimant did not have

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

any signs of radiculopathy or radicular problems and the EMG studies revealed no abnormalities or signs of radiculopathy from the lumbar spine.

Dr. Nogalski also ordered, obtained and reviewed x-rays of Claimant's right knee, left knee and lumbar spine for his evaluation. The x-ray of the left knee revealed some mild degenerative changes in the medial and lateral tibiofemoral compartments. There were also minimal degenerative changes of the patellofemoral joint present. The x-ray of the right knee showed some minimal degenerative changes in the medial tibiofemoral and patellofemoral joints. Diagnostic studies of the lumbar spine showed the spinal cord stimulator at T-10, but otherwise revealed a relatively neutral lumbar region with minimal narrowing at the T12-L1 and L1-L2 levels.

Dr. Nogalski ultimately concluded that Claimant suffers from a diffuse low back and leg pain without objective correlation and likely some contribution from obesity and deconditioning. He found that throughout the chronology of treatment there is no real objective finding that supports injury to the low back. He also opined that it was reasonable that given Claimant's body habitus she would experience back pain at some point in time, and likely more than others. He further noted she is status-post left knee arthroscopy. He found Claimant to be a maximum medical improvement and found no disability in either knee or low back, no need for further treatment, and no need for any restrictions.

Dr. David Volarich performed an Independent Medical Examination on behalf of Claimant on November 28, 2016. He issued addendum opinions to on December 5, 2017 and May 17, 2018 (Ex. 2). He gave deposition testimony on July 12, 2018.

Claimant reported a lengthy list of complaints at the time of Dr. Volarich's evaluation. In that regard, she noted ongoing stiffness and increased pain with cold weather in the right knee. She also reported constant pain behind her patella in her left knee as well as weakness and popping with motion. She also noted that movement of her left leg and weight bearing cause her pain. Lastly, Claimant reported ongoing pain in her lower lumbar to sacral area, worse on the left with pain that radiates to her left posterior leg to her knee and through her groin and medial thigh.

On physical examination, Dr. Volarich noted restricted lumbar motion and some pain to palpation within the lumbar region; however, he located no spasm in the lumbar spine. His examination of the right and left knees was unremarkable except for a trace of patellofemoral crepitus. Dr. Volarich noted diagnoses of internal derangement of the left knee; right knee contusion and lumbar left leg radiculopathy. He also noted an additional diagnosis of psychiatric disorders. He opined that the slip and fall accident from January 2007, was the primary and prevailing factor in causing the left knee derangement, right knee contusion and lumbar left leg radiculopathy. He further found Claimant to be at maximum medical improvement and assessed permanent partial disability ratings of 35 percent of the left lower extremity at the 160 week level, 5 percent of the right lower extremity at the 160 week level, and 35 percent of the body as a whole at the 400-week level due to the lumbar spine. He said Claimant is permanently and totally disabled as a direct result of the slip and fall in January 2007.

In his first addendum opinion on December 5, 2017, after reviewing Dr. Halfaker's report, Dr. Volarich made no change to his original opinions. In his second addendum opinion of May 17, 2018, after he reviewed the vocational report from Phillip Eldred, Dr. Volarich again offered no changes to his original findings and opinions, noting that Mr. Eldred's report confirmed his assessment.

11

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

During his testimony, Dr. Volarich admitted that Claimant had reported an improvement in right knee pain by April 2007. He further agreed here is no mention of right knee pain throughout the remainder of Claimant's care and treatment. He admitted that Claimant did not seek treatment related to her left knee or low back until March 2, 2007, and her office visit at that time was mainly for her anxiety disorder. She also did not reference anything about a specific work injury at that time. Through his deposition, Dr. Volarich conceded that Claimant's treatment was for left knee and left hip pain only, with no treatment request for low back issues until 11 months after the January 2007 fall at work. Moreover, Claimant did not really ever receive treatment for her low back until January 2009 with Dr. Holland, which Dr. Volarich noted was two years after the slip and fall event.

Dr. Volarich noted that at the time of his evaluation, Claimant was 5'4" tall and she weighed 296 lbs. with a BMI of 50.8, which he classified as morbidly obese. He indicated that individuals with morbid obesity are more susceptible to issues and complaints within their knees and would have extra strain on their low back given their weight.

Dr. Volarich reviewed Claimant's medical bills, which he opined were reasonable, necessary, and related to the work related fall of in January 2007.

Dr. Shane Bennoch performed an Independent Medical Evaluation on behalf of Claimant on October 6, 2009. He provided an addendum opinion on April 30, 2012. At the time of the evaluation, Claimant complained of left knee pain and persistent low back pain that goes down into the left leg. She further relayed to Dr. Bennoch that these issues have been persistent since the slip and fall in January 2007.

On physical examination, Dr. Bennoch noted tenderness to the low lumbar vertebra and left sacroiliac joint and medial joint line tenderness to the left knee. Claimant, however, was able to walk without pain, had a normal gait and did not limp. Claimant had normal muscle strength throughout her lower extremities and had flexion and extension to both knees. She also had normal hip range of motion upon testing.

Dr. Bennoch noted diagnoses of slip and fall with traumatic injury to the left knee and low back; medial and lateral with full-thickness cartilaginous defect to the medial femoral condyle; and low back pain, sacroiliitis with left radiculopathy. He also noted pre-existing diagnoses of PTSD and depression. He had further opined that Claimant reached maximum medical improvement and that the accident in January 2007, was the prevailing cause of the injuries to her left knee and lower back. He assessed a 30 percent permanent partial disability to the left knee and 25 percent permanent partial disability to the body as a whole at the lumbar spine. He opined that Claimant was unable to return to work and that if no improvement was forthcoming with treatment, Claimant may need to be declared permanently and totally disabled.

Dr. Bennoch issued an addendum opinion on April 30, 2012, after review of Dr. Holland's and Dr. Morgan's records. Based on those records, Dr. Bennoch said Claimant did well after the placement of the permanent spinal stimulator but that she still required medication to control the pain in the low back. Given this additional information, he opined that Claimant's permanent partial disability impairment of the body as a whole at the lumbar spine should be adjusted from 25 to 35 percent Permanent Partial Disability.

Dr. Dale Halfaker conducted a psychological evaluation of Claimant on August 15, 2017. He issued a report and also testified by deposition. At the time of the evaluation, Claimant reported issues with pain in her left knee and low back and depression and anxiety which she ascribed to the slip and fall event. Dr. Halfaker noted Claimant has an extensive history of depression, anxiety and PTSD dating from 1995. He

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

noted a formal diagnosis of PTSD in 1998 and a psychotropic medication regime before the slip and fall event that included antidepressants and anxiolytics. Dr. Halfaker opined that Claimant had significant pre-existing partial psychological disability as high as 15 percent to the body as a whole, but that improved with treatment and medication. He indicated that at the time of the January 2007 slip and fall the disability was likely about 9 percent partial psychological disability. He noted an increase in Claimant's pre-existing depression, anxiety and PTSD that was associated with the death of her mother. He believed Claimant suffered from adjustment disorder with mixed anxiety and depressed mood that is chronic. In that regard, he assessed partial psychological disability of 10 percent body as a whole for the slip and fall event. Dr. Halfaker further noted that neither the prior or last injury psychological disabilities alone would result in Claimant being permanently totally disabled, but when the disabilities are combined, Claimant reaches the threshold of permanent and total disability from a psychological standpoint. He found a degree of synergism when the pre and post psychological conditions and disabilities are combined, to which he assessed a 10 percent enhancement factor. He recommended future medical treatment in the form of medication that would flow from the January 2007 slip and fall.

In his testimony, Dr. Halfaker agreed that Claimant has some somatization that is essentially an elevation of her physical complaints due to psychological stressors. He noted that Dr. Bisbey's records indicated potential malingering based upon Claimant progressing through treatment slower than expected and the suspicion that she was actually doing better than she was reporting. Dr. Halfaker also agreed that Claimant already was taking medication well before 2007, and it was the same medication he would recommend that she continue to take in the future. He said at the time of his examination of Claimant, she listed ongoing migraines and psychological issues, but made no reference to low back or left knee issues. Lastly, Dr. Halfaker testified that in relation to his rating for the January 2007 slip and fall, he would rely on what the trier of fact believes as to the causation for her physical problems. He testified that if the left knee and the back are not considered to be related to a work injury, then her partial psychological disability would not be work related.

Vocational Opinions

Phillip Eldred first performed a vocational evaluation of the Claimant on June 11, 2013. At this time, Claimant stated that in order of severity her medical problems were: low back; neck pain; peripheral neuropathy; migraines; left knee (when on her feet); depression; and memory, concentration and cognitive problems. In light of this vocational examination and evaluation, Mr. Eldred opined that Claimant did not have a preexisting impairment which was vocationally disabling such as to constitute a hindrance or obstacle to employment before January 12, 2007. He further opined that: Claimant is unable to perform any of her past work; it is highly unlikely that any reasonable employer would hire Claimant for competitive, gainful employment; Claimant does not have any transferable job skills for the sedentary work level even if she could perform work at the sedentary work level; she would have problems being retrained in a formal training program due to her constant pain and use of narcotic pain medication; Claimant is unemployable in the open labor market; and she is permanently and totally disabled as a result of her slip and fall injury on January 12, 2007, in isolation.

Mr. Eldred issued three supplemental reports following his initial vocational assessment after being provided with additional records for his review: August 31, 2017, December 16, 2017, and June 1, 2019. In each report, Mr. Eldred opined that Claimant is permanently and totally disabled as a result of her injury on January 12, 2007, in isolation.

13

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

In his live testimony, Mr. Eldred agreed that Claimant has a long-list of pre-existing issues and issues completely unrelated to the slip and fall in January 2007. He testified that Claimant has a long history of psychological issues and reported unrelated problems with her neck, peripheral neuropathy (hands), and migraines. Mr. Eldred said he considered all of these issues when determining whether Claimant was permanently and totally disabled. He said to find Claimant permanently and totally disabled, one would have to consider her left knee, right knee and low back as well as psychological issues.

Mr. Eldred based much of his opinions on the reports of Dr. Bennoch, Dr. Volarich and Dr. Halfaker, as well as the records of Claimant's unauthorized treatment. He agreed there were no restrictions provided by the authorized treating physicians. He agreed that the Back Function Questionnaire and Functional Capacity Checklist which assisted him in his assessment were based on Claimant's subjective reporting of her limitations and complaints. Mr. Eldred agreed that there are documented issues with somatization noted within Claimant's records.

Ben Hughes performed a vocational evaluation of the Claimant on February 14, 2020, issued a report, and testified by deposition on June 9, 2020. Mr. Hughes opined that Claimant is presently governed by restrictions and limitation that do not render her unemployable in the open and competitive labor market. He opined that based on the WRAT-4 testing, Claimant is capable of undergoing some retraining if she chose to do so. He believed the testing showed Claimant is able to work in a variety of vocational settings and the results do not agree with Claimant's complaints of concentration or cognitive troubles. Mr. Hughes concluded Claimant could work either at the light level, sedentary level, or even return to any previously held job. He said only from Dr. Volarich and Dr. Halfaker's perspective would Claimant be unemployable.

Additional Findings

Claimant does not drive, partially because of a poor range of motion in her neck, which is a condition unrelated to the work accident. Claimant admitted no physician directed her to give up driving. She allowed her nursing license to lapse as she does not believe she could return to work as a nurse. She is unable to lift 50 pounds and does not have the level of alertness necessary for the job due to the medications she takes. She stated that muscle relaxers make her groggy and Lyrica affects her vision. Claimant also takes narcotic medications.

Preceding the work accident, Claimant suffered a number of psychological conditions, including PTSD, following an assault and domestic issues. She believes, however, she was functioning normally before the work accident and was emotionally stable.

As explained below, I find each of the physicians, vocational experts, and neuropsychologist credible to some degree. I do not find any one opinion wholly persuasive on all issues. I do not accept Claimant's subjective belief as to what has caused her various problems.

RULINGS OF LAW

Claimant bears the burden of proving her case on all disputed issues. *Walsh v. Treasurer of the State of Missouri*, 953 S.W.2d 632 (Mo. App. S.D. 1997) *overruled on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). Administrative Law Judges must weigh the evidence impartially without giving the benefit of the doubt to any one party, and all provisions of the workers' compensation law are to be construed strictly. § 287.800 RSMo.

Causation

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. §287.020.3 RSMo. Applying this statutory standard, I find and

MNKOI 0006113467

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

conclude that Claimant sustained a compensable injury from the work related fall that occurred on or about January 13, 2007.

Claimant's evidence is that she bumped her right knee at the time of the fall in January 2007. The right knee caused Claimant pain. It appears that the pain in the right knee, however, resolved. As reflected in the medical record of Dr. Bisbey, as of April 20, 2007, Claimant was no longer having difficulty with the right knee. Treatment then shifted to the left knee, alone. Although Claimant's rating physicians found some minimal disability in the right knee, the medical evidence overall, and Claimant's testimony, was that the right knee no longer is an issue. I find and conclude that Claimant has no permanent disability with respect to the right knee and I award no benefits for the right lower extremity.

Claimant's left knee took the brunt of her work-related fall. While Dr. Bisbey was concerned that Claimant was malingering, and Dr. Wester found the etiology of Claimant's pain unclear from the MRI, Dr. Miller found otherwise. Dr. Miller - a board certified orthopedic surgeon - found that the internal derangement of left knee on MRI necessitated surgery. The surgery performed by Dr. Miller was successful in alleviating Claimant's symptoms. Following surgery and physical therapy, Claimant's knee continued to improve in strength and range of motion.

The Administrative Law Judge is free to reject all or part of any expert's testimony. *Pace v. City of St. Joseph*, 367 S.W.3d 137, 150 (Mo. App. W.D. 2012). With respect to the left knee only, I reject the opinion of Dr. Nogalski. I accept the causation opinions of Dr. Bennoch and Dr. Volarich as to the left knee. Substantiating these expert causation opinions are the words of the treating orthopedic surgeon, Dr. Miller. He reported contemporaneously, "I do feel that the arthroscopic findings were consistent with her described injury of having fallen." (Ex. 1, P/16). This is most compelling. Claimant has sustained her burden on the issue of causation as it relates to the left knee.

The chronology of events and the active medical treatment issues are important in considering the causation of the low back condition. With respect to the back, I accept the opinion and conclusion of Dr. Nogalski to be credible and most persuasive.

Claimant originally did not report an injury to her low back to her supervisors. Her initial report of injury was limited to her knees. Claimant sought no medical treatment for her injuries from the work related fall for a period of at least five weeks. There are some references in the medical records that her sacral, SI, or low back area was tender, but once Claimant did go to an occupational medicine physician, her treatment was focused on her knees and left hip pain. In her May 2007 statement, she explained that the pain went up to her sacrum. But still, medical records show the focus on the work injuries was limited to the left knee and left hip. The objective medical evidence from the May 10, 2008 MRI revealed only mild degenerative disk disease and mild foraminal disc bulges, but no focal disc herniation or significant stenosis. It is admitted that Claimant had preexisting degenerative changes in her back. When Claimant sought treatment from Dr. Miller July and August 2007, it was only for the left knee.

It was not until December 2007, 11 months after the work-related fall of January 2007, that Claimant specifically sought treatment for her low back. At this time, Claimant reported no injury to her physician. The modicum of references in medical records to chronic low back pain in 2007 does not convince this administrative law judge that the back pain Claimant was having was related to the work injury as opposed

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

to a preexisting degenerative changes. It was a full two years after the slip and fall that Dr. Holland provided treatment for Claimant's back. Moreover, in 2009 when Claimant was referred to a pain clinic, she told Dr. Kelly that she had suffered recent falls. Given these intervening falls, it is most difficult to draw a connection between Claimant's current back problems with the fall in 2007.

Given evidence of preexisting back issues, the absence of a specific, contemporaneous complaint of a back injury to her supervisors, the failure to seek treatment for the low back prior to December 2007, and evidence of subsequent falls unrelated to work, I do not find credible the causation opinions of Dr. Volarich and Dr. Bennoch as those opinions related to an alleged back injury. I accept the causation opinion of Dr. Nogalski as to the back. The work accident of January 13, 2007, was not the prevailing factor in causing or exacerbating any back condition or disability.

d) Psychological Condition

Dr. Dale Halfaker said Claimant suffered from adjustment disorder with mixed anxiety and depressed mood that is chronic, assessing a partial psychological disability of 10 percent body as a whole attributable to the slip and fall event. Dr. Halfaker noted that any medication he would recommend was the same medication Claimant had been taking before 2007. At the time of his examination, Claimant only listed ongoing migraines and psychological issues, and made no reference to low back or left knee issues. He said if the left knee and the back are not considered to be related to a work injury, then Claimant's permanent partial psychological disability would not be work related. Query: Would Dr. Halfaker still conclude that Claimant's psychological condition is related to the work accident if only the left knee disability was found to be work related? Dr. Halfaker did not specifically address this issue and the back condition is a huge component of this case.

In December 2007, Claimant reported no complaints with the left knee, but she was reporting chronic issues with her back that were unrelated to the work accident. Claimant had lumbar stenosis and lumbar spondylosis, and the prevailing factor for these conditions would not be the claimed date of injury in January 2007. Considering all of the evidence, I conclude that the work accident with the compensable left knee injury (and without the back condition) did not cause any psychological condition or create an exacerbation of Claimant's preexisting psychological conditions.

Temporary Total Disability

Claimant has alleged she is owed temporary total disability benefits from June 30, 2007 through November 27, 2016, less those dates in which she drew unemployment. Temporary total disability is to cover the one's healing period, until the employee can either find employment or has reached maximum medical improvement. *Birdsong v. Waste Management*, 147 S.W.3d 132, 140 (Mo. App. S.D. 2004). "When further medical progress is not expected, a temporary award is not warranted." *Boyles v. USA Rebar Placement, Inc.*, 26 S.W.3d 418, 424 (Mo. App. W.D. 2000) (overruled on other grounds).

Employer provided accommodated work or temporary benefits up to the date of Claimant's termination on July 29, 2007. Claimant thereafter treated with Dr. Miller who determined that Claimant needed surgery. Dr. Miller believed the surgery addressed and alleviated Claimant's issues related to the work accident. Claimant reported to Dr. Miller that she was improved following the surgery. Claimant thereafter completed physical therapy on September 7, 2007. Although Dr. Miller advised Claimant to return if she had additional issues with the left knee, she did not return to Dr. Miller after physical therapy. When she

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

complained of low back pain in December 2007 to her primary care physician, Claimant voiced no complaints regarding her left knee. Based on this evidence, I find and conclude that Claimant reached maximum medical improvement with respect to her left knee on September 7, 2007, at which time she had completed physical therapy.

From June 30, 2007 through September 7, 2007, while she was under active treatment for her knee, Claimant did not work anywhere. This is a period of 10 weeks. Claimant is entitled to 10 weeks of temporary total disability. At the rate of 328.63, Employer is liable for a total of 3,286.30 in unpaid temporary total disability benefits. Because I have determined that Claimant's low back condition is unrelated to the work accident, and that the right knee had resolved without disability, back temporary total disability is limited solely to the left knee injury.

Past Medical Treatment/Mileage

Section 287.140 RSMo, requires Employer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003). Section 287.140.1 RSMo, requires an employer to provide an injured employee with medical care; however, it allows the employer to select the medical provider. *Blackwell v. Puritan-Bennett Corp.*, 901 S.W.2d 81, 85 (Mo. App. E.D. 1995). Pursuant to § 287.140.1 RSMo, if an employee selects her own physician or surgeon without advising her employer, the treatment is at the employee's expense. Generally, an employer is not liable for medical treatment incurred by an employee independently, unless the employer has notice that the employee needs treatment, or a demand is made on the employer to provide medical treatment, and the employer refuses or fails to provide the needed treatment. *Hayes v. Compton Ridge Campground, Inc.*, 135 S.W.3d 465, 471 (Mo. App. S.D. 2004). Claimant has the burden of proving entitlement to the care and treatment. *Bowers v. Hiland Dairy Co.*, 132 S.W.3d 260, 266 (Mo. App. S.D. 2004).

Claimant submitted a substantial number of bills related to the left knee surgery, to which Claimant would be entitled had she advised Employer of the need for additional medical treatment. Here, Employer relied on the opinions of two physicians - including a board certified orthopedist - who opined that Claimant did not need additional treatment for the work injury and released Claimant from care. Claimant's employment then was terminated. Claimant admitted that she had no further contact with anyone at the clinic where she had worked or with Employer's administration. After she was advised by Dr. Miller that she needed surgery, there is no evidence that Claimant attempted to provide Dr. Miller's opinion to her Employer. Moreover, just because Dr. Miller decided to perform the surgery quickly, within two days, does not indicate it was an emergency. In short, Claimant gave Employer no opportunity to authorize the surgery. I find and conclude that Employer did not waive its right to select the treating physician. Employer is not liable for the unauthorized medical treatment that followed.

As for the low back, even if I had found the condition related to the work accident on or about January 13, 2007, there is no evidence suggesting that Claimant ever notified her employer of a need for treatment before undergoing the same. No past medical bills are awarded for treatment of the back, knees, or psychological conditions.

Claimant is entitled, however, to mileage for medical examinations with Dr. Michael Nogalski at Orthopedic Associates, LLC in St. Louis, Missouri on June 17, 2018 and December 4, 2019. Claimant alleges that she incurred 420 miles round trip for attending each of these evaluations. Although Employer had agreed that it owed mileage for the attendance at two Independent Medical Examinations with Dr.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

Nogalski, Claimant alleged in her post-hearing brief that she still has not received the reimbursement. Given Employer's agreement that mileage was owed, it is made a part of the Award. Claimant is entitled to reimbursement in the amount of $348.60, using mileage reimbursement rates of 41.5 cents per mile.

Future Medical Treatment

A claimant must show by reasonable probability that future medical treatment is needed to cure or relieve the effects of the work-related injury. *Null v. New Have Care Center, Inc.*, 107 S.W.3d 172, 181 (Mo. App. E.D. 2013). It is immaterial that the medical treatment might simultaneously benefit non-compensable conditions. *Browers v. Hiland Dairy Co.*, 132 S.W.3d 260, 270 (Mo. App. S.D. 2004).

In August 2007, the treating physician Dr. Christopher Miller recommended six weeks of additional physical therapy for Claimant's left knee and provided one refill of her medication. There is no evidence that her recommended long term use of any medication. Claimant did not return to Dr. Miller following her physical therapy, suggesting that she was in need of no further treatment for the left knee. When Claimant returned to her primary care physician in December 2007, which was four months post-surgery, she reported no problems with the left knee. Whatever unauthorized treatment she has obtained following thereafter cannot be said to flow from the work injury to the left knee. I conclude that Claimant has failed to prove that she requires additional treatment to cure and relief the effects of the work injury.

Permanent Disability

Claimant alleges that she is permanently and totally disabled as a result of the work accident on January 13, 2007. Total disability is defined under § 287.020.7 RSMo, 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. *Fletcher v. Second Injury Fund*, 922 S.W.2d 402, 404 (Mo. App. W.D. 1996). The test for permanent and total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. *Knisley v. Charleswood Corp.*, 211 S.W.3d 629, 635 (Mo. App. E.D. 2007).

Based on the opinions of Dr. Bennoch, Dr. Volarich, and the medical records of Dr. Miller, Claimant sustained her burden of proving that she sustained a compensable injury to her knees as a result of the work accident. She further proved that her left knee injury resulted in a permanent partial disability. Only the knee conditions related to the work accident. There is no medical or vocational opinion specifically stating that Claimant that is permanently and totally disabled from the knee injuries by themselves. I find and conclude that Claimant is NOT permanently and totally disabled as a result of the injuries sustained from the last work accident on January 13, 2007.

As for permanent partial disability, the Administrative Law Judge "is not bound by the experts' exact percentages of disability and is free to find a disability rating higher or lower than that expressed in medical testimony." *Hawthorne v. Lester E. Cox Med. Ctrs.*, 165 S.W.3d 587, 594 (Mo. App. S.D.2005). During the June 17, 2008 physical performed by Dr. Nogalski, the physician noted some effusion and at least minimal tenderness with patellofemoral compression and over the anterolateral knee. Claimant continues to complain of chronic knee pain. Dr. Volarich imposed medical restrictions related to the left knee. Having considered the opinions of all of the expert witnesses, Claimant's testimony, as well as the type of surgery performed, I find and conclude that Claimant sustained a 30 percent permanent partial disability to the left knee. At the agreed disability rate of $328.63, Employer/Insurer owe Claimant $15,774.24 in permanent partial disability.

18

Claimant is not permanently and totally disabled from the knee disability in isolation. She can only obtain permanent and total disability benefits in this case if she can demonstrate that the Second Injury Fund has liability.

Section 287.430 RSMo, provides that a claim against the Second Injury Fund "shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later." Claimant filed her original claim for compensation on November 1, 2007, and an amended claim on April 24, 2009, and a second amended claim on May 1, 2017. The original claim of November 1, 2007 (Ex. II), alleged the following:

- Employer only. The Fund was not added as a party;

- Average Weekly Wage listed as $\ 501.44;

- Parts of Body Injured listed as, "Right Knee, Left Knee";

- Description: "Employee was on her way to work at Cox Walnut Lawn Urgent Care, when she slipped and fell on the ice covered sidewalk."

The amended claim filed on April 24, 2009 (Ex. I), alleged:

- Employer only. The Fund was not added as a party;

- Average Weekly Wage remained unchanged;

- Amended the Parts of Body Injured to "Right knee, Left knee, Back";

- Description remained unchanged.

The second amended claim filed on May 1, 2017 (Ex. III), alleged:

- Fund added as a party;

- Average Weekly Wage changed to $\ 1,500.00;

- Parts of Body remained unchanged;

- Description changed to: "Employee, while working within the course and scope of her employment, sustained injury when she slipped and fell."

As is evident from the above synopsis, Claimant did not file a claim against the Second Injury Fund until more than 10 years after the work accident. It is not within two years of the date of injury by accident. Therefore, to be timely, $\S 287.430$ RSMo, requires that the claim against the Fund be filed within one year of the claim against Employer/Insurer.

As discussed in Elrod v. Treasurer, 576 S.W.3d 233, 716-17 (Mo. App. E.D. 2019), and its progeny, the "claim" is not limited to the original claim. It can include an amended claim. It also may include a stipulation for compromise settlement if there was been no previously filed claim for compensation against an employer. See e.g., Treasurer v. Couch, 478 S.W.3d 417, 418-19 (Mo. App. W.D. 2015). See also, Naeter v. Treasurer, 576 S.W.3d 233 (Mo. App. E.D. 2019). But to be timely when calculated from an amended claim, the amendment must be "adding some cause, effect, or injury relating back to the original claim." Naeter, at 238 (emphasis added). These points were discussed most recently in two opinions issued by the Missouri Court of Appeals, Southern District: Janet Scott v. Treasurer, SD36596 \& SD36597 (Mo. App. S.D. October 1, 2020), and Rick Hunsaker v. Treasurer, SD36450 (Mo. App. S.D. October 6, 2020).

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

In the Scott case, Judge Sheffield explained why the claim against the Fund, on facts similar to the instant proceeding, was untimely:

A comparison of Scott's original claims to her amended claims shows that, as to Employer, Scott's amended claims were substantially the same as her original claims except for minor changes (including that, for the 2010 injury, the statement "Employee needs medical treatment[]" was crossed off in the amended claim).6 Unlike Elrod, Scott's amended claims as to both her 2009 and 2010 injuries did not add any additional body parts injured. Neither of Scott's amended claims "in some way add[ed] to the original claim by adding some cause, effect, or injury relating back to the original claim." Naeter, 576 S.W.3d at 238. Therefore, Scott's amended claims are more analogous to the second amended claim the court in Naeter found insufficient to constitute "a claim" under section 287.430 rather than the "bona fide" claim the court found sufficient in Elrod. As for Scott's deletion of the phrase "Employee needs medical treatment" from her amended claim for her 2010 injury, Scott argues that by not including a request for medical treatment, this was a "substantial change[] as to the parties." However, just as in Naeter, Scott conflates a change in claims with a change in anticipated evidence to be presented at a hearing. See id. at 238-39.

Scott, (Slip Op. 7-8).

Similarly, in Rick Hunsaker v. Treasurer, the Court iterated that if an amended claim does not supplement or amend the claim against Employer, it cannot be used to calculate the state of limitations pursuant to §287.430 RSMo (Slip Op. 7).

In the present claim, there were three changes. First, Claimant added the Fund as a party. Second, Claimant increased her average weekly wage from 501.44 to 1,500.00. Third, her description of the accident changed from "was on her way to work" when she slipped and fell on an icy sidewalk "while working within the course and scope of her employment, sustained injury when she slipped and fell." (Ex. III). The changes did not allege a new cause, effect, or injury.

I agree with the Second Injury Fund that the sole purpose of the 2017 amended claim was to add the Fund as a party. The change of the average weekly wage from 501.44 to 1,500.00 had no basis in fact. The parties stipulated to an average weekly wage of 492.94, yielding a temporary compensation rate of 328.66, which was very close to what was averred in the original and first amended claims. Claimant should not be allowed to skirt the Statute of Limitations by merely alleging a different wage rate which she knows is not supported by any evidence.

The third adjustment likewise did not alter the original or amended claim. No new injury or body part was included in the second amended claim. Employer had accepted that Claimant had fallen on ice on a sidewalk outside of the clinic where she worked which was within the course and scope of employment. Employer paid for initial treatment to Claimant's knees, paid temporary benefits or accommodated her work, paid for diagnostic studies, and had her seen by an orthopedic surgeon. Employer did not deny that Claimant fell within the course and scope of employment.

The first amended claim on April 24, 2009 was a bona fide claim against the Employer - it added the back to the parts of body injured. This let the Employer know there was a claim for an additional injury. The claim against the Fund, filed on May 1, 2017, more than two years after April 24, 2009, was only substantive amendment. Employee's claim against the Fund is barred by §287.430 RSMo.

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Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

2) No Liability by the Fund

Even if the last amended claim was a bona fide amendment aimed at something more than just joining the Fund, the Second Injury Fund still has no liability. Claimant testified that she had no problems performing her job at Cox Walnut Lawn, or any job, prior to her fall in January 2007. Claimant's vocational expert found no vocationally disabling impairment and no hindrance or obstacle to employment before January 13, 2007. Employer's vocational expert, Benjamin Hughes, concurred in this regard. While the evidence substantiates that Claimant had a preexisting degenerative condition in her back and previously had treated for emotional issues, these conditions had not previously interfered with Claimant's work.

It has been more than 13 years since Claimant's work accident that resulted in an injury to her knees. During that time, she has aged and continues to be morbidly obese, which the doctors indicated can adversely affect the preexisting degenerative back as well as the knees. A review of the medical records convinces this administrative law judge that Claimant's preexisting conditions deteriorated subsequently and independently of the work accident, and not because of it. The Second Injury Fund is not liable for the progression of preexisting conditions that are not caused by the last work injury. *Lewis v. Treasurer*, 435 S.W.3d 144, 162 (Mo. App. E.D. 2014).

SUMMARY

Employer is liable for the following:

30 percent permanent partial disability of the left knee

(48 weeks x 328.63) 15,774.24

For past medical expenses

Mileage reimbursement for IMEs with Dr. Nogalski 348.60

For Temporary Total Disability

10 weeks x 328.63 3,286.30

(June 30, 2007 through September 7, 2007)

TOTAL: 19,409.14

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Newman Law Firm.

I certify that on 11-5-20

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon each party is retained with

the executed award in the Division's case.

By

My

Made by:

Victorine R. Mahon

Chief Administrative Law Judge

Division of Workers' Compensation

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