Tammy Suchland v. Department of Corrections

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We approve and affirm 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 28th day of December, 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

JUNE 15, 2021

13-095685 #ATTY GENERAL ERIC SCHMITT 815 OLIVE ST STE 200 ST LOUIS, MO 63101

13095685S1WC35100020210615INAT002001

Injury No : 13-095685 Injury Date : 12-22-2013 Insurance No. : 1402192

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

AWARD ON HEARING MLP

Please visit our website at www.labor.mo.gov/DWC

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**MISSOURI**

**DEPARTMENT OF LABOR**

**& INDUSTRIAL RELATIONS**

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WC-142 (05-21)

**AWARD OF HEARING**

**MLP**

Relay Missouri: 800-735-2966

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Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

Claimant: Tammy L. Suchland

Dependents: N/A

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund

Insurer: Self-insured (Missouri Office of Administration)

Hearing Date: March 16, 2021

Injury No.: 13-095685

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

1. Are any benefits awarded herein? 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: December 22, 2013.
5. State location where accident occurred or occupational disease was contracted: Bowling Green, Pike County.
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? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? No.
11. Describe work claimant was doing and how accident occurred or occupational disease contracted: During the course and scope of employment claimant slipped on ice and fell thereby resulting in injury.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Cervical spine, head, right knee and psych.
14. Nature and extent of any permanent disability: See below.
15. Compensation paid to-date for temporary disability: $\ 3,238.95 representing 8 weeks and 6 days.
16. Value necessary medical aid paid to date by employer/insurer? ? $\ 94,396.23 (including $\ 2,015.64 for mileage)

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 13-095685

1. Value necessary medical aid not furnished by employer/insurer? N/A.

1. Claimant's average weekly wages: $548.53.

1. Weekly compensation rate: The rate of compensation for temporary total disability/permanent total disability was 365.69 and the rate of compensation for permanent partial disability was 365.69.

1. Method wages computation: Stipulation.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: Employer is liable for permanent total disability. Weekly benefits of $365.69 from the Employer shall begin February 10, 2015 and continue for the remainder of claimant's lifetime.

1. Second Injury Fund liability: N/A.

1. Employer is liable for future medical treatment to cure and relieve the effects of the work-related injury of December 22, 2013.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorneys for necessary legal services rendered to the Claimant: Van Camp Law Firm, LLC.

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Injury No.: 13-095685

Claimant, Tammy L. Suchland, requested a hearing for a final award to determine the liability of the Missouri Department of Corrections ("Employer") for permanent partial disability ("PPD") benefits for an injury alleged on December 22, 2013 while at work.

On March 16, 2021, Claimant appeared in person and by counsel, Attorney Kevin V. Spear, at the Missouri Division of Workers' Compensation office in St. Louis. Employer appeared through Assistant Attorney General Eric Doner. The Second Injury Fund appears in person, through its attorney, Kristin Frazier. The Division has jurisdiction to hear this case pursuant to Section 287.110 RSMo. Claimant's counsel requested twenty-five percent (25%) of the amount awarded to Claimant herein as and for his attorney's fees.

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

1. On December 22, 2013, the State of Missouri - Department of Corrections was a self-insured employer operating under and subject to The Missouri Workers' Compensation Law.

1. On December 22, 2013, Claimant, Tammy L. Suchland, was an employee of Employer and was working under and subject to The Missouri Workers' Compensation Law.

1. On December 22, 2013, Claimant sustained an accident, which arose out of and in the course of her employment with Employer.

1. The employment and accident occurred in Bowling Green, Pike County, Missouri. The hearing was held in St. Louis, Missouri. Jurisdiction and venue are waived and therefore proper.

1. Claimant notified Employer of her injury as required by § 287.430 RSMo.

1. The Claim for Compensation was filed within the time prescribed by § 287.430 RSMo.

1. On December 22, 2013, Claimant's average weekly wage was 548.53, yielding a compensation rate of 365.69 for all purposes.

1. Employer paid $3,238.95 to Claimant for 8 weeks and 6 days of temporary total disability.

1. Employer paid 94,396 (including 2,015.64 in mileage) for Claimant's medical treatment.

1. Claimant reached maximum medical improvement on February 10, 2015.

1. Future medical.

1. Nature and extent of disability against Employer.

1. Nature and extent of disability against the Second Injury Fund, if any.

1. Reimbursement for previously incurred medical bills.

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The following exhibits were offered and entered into evidence:

Claimant offered the following exhibits, which were admitted into evidence without objection:

1. Dr. David B. Robson Reports dated May 20, 2014 and June 5, 2014 and CV.
2. Dr. Raymond F. Cohen Reports dated April 6, 2015, August 13, 2015, and February 4, 2020 and CV.
3. Dr. A.E. Daniel Report dated February 2, 2017 and CV.
4. Mr. Phillip Eldred Deposition and Reports of November 18, 2015, March 16, 2017, and November 10, 2017 and CV.
5. Pike County Memorial Hospital records.
6. Pike County Memorial Hospital records.
7. Columbia Orthopedic Group records.
8. Midwest Orthopedic Specialists records.
9. Hannibal Clinic Operations, LLC records.
10. Hannibal Regional Medical Group records.
11. Eastern Missouri Health Services records.
12. St. Joseph Hospital West records.
13. Midwest Spine Surgeons records.
14. Orthopedic Sports Medicine and Spine Care Institute records.
15. Advanced Physical Therapy and Sports Medicine records.
16. MRI Partners of Chesterfield records.
17. Pain Management Services records.
18. Vandalia Medical Clinic records.
19. SSM Health S. Joseph Hospital-Wentzville records.
20. Eastern Missouri Health Services bills.
21. Pike County Memorial Hospital bills.
22. Division of Workers' Compensation records.
23. VCLF Expenses.
24. VCLF Contingent Fee Agreement.

Employer offered the following exhibits, which were admitted into evidence without objection:

A. Deposition - Dr. James Coyle.

B. Deposition - James England.

C. Deposition - Dr. Cristopher Wolf.

D. Report - Dr. James Coyle.

The Second Injury Fund offered the following exhibits, which were admitted into evidence without objection:

i. Deposition of Tammy L. Suchland.

ii. Division of Workers' Compensation records.

FINDINGS OF FACT

Based upon the competent and substantial evidence, I find:

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Claimant is a 54-year-old high-school graduate with a cosmetology license. After working as a cosmetologist after graduation, Claimant worked briefly as a materials handler and then a hair stylist in the late 1980s. She then went to work in a plastics factory, starting as a laborer and then becoming a quality control specialist. Claimant then ultimately began work as a correctional officer in 2006 at the Missouri Department of Corrections in Bowling Green. There, she performed a variety of office work, which included the supervision of inmates and patrolling the facilities. This was mostly light work that did not require lifting more than fifty pounds.

Prior to her December 23, 2013 accident at the Department of Corrections, Claimant suffered from multiple injuries and disabilities. These disabilities are as follows:

1. **Right Upper Extremity:** Claimant originally underwent bilateral carpal tunnel surgeries in 1999. Prior to these surgeries, Claimant was a cosmetologist and worked at a plastics plant, but she testified that she changed jobs due to her upper extremity issues. She then further underwent a volar ganglion excision and release of her first dorsal compartment in April 2013.

1. **Left Upper Extremity:** Claimant was additionally diagnosed with left wrist De Quervain tenosynovitis in 2007. She underwent an excision of a ganglionic cyst and release of the dorsal compartment at that time. Claimant testified that her bilateral hand issues continued to affect her recreational activities leading up to her December 2013 work injury. Specifically, she had no strength in her dominant left hand in order to bowl. Claimant was further limited in her ability to go fishing and often just watched.

1. **Psychiatric:** Claimant testified that she regularly attended counseling for anxiety from 2007 to her injury in 2013. During that time, she testified that she would be anxious about the unknown. She testified that she would also cry and be mad at the world in the same day. As for how it affected her work, Claimant testified that she would call out due to her anxiety approximately three times per month. In addition to general anxiety, Claimant was formally diagnosed with major depressive disorder and panic disorder in 2009. She was hospitalized on July 31, 2010 for an intentional overdose after a depressive episode. Claimant continued to struggle with anxiety, as a September 14, 2011 treatment note indicated that Claimant had been off work for a week due to anxiety symptoms at that time. She was provided a

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continued prescription of Lamictal for her bipolar disorder.

1. Headaches- Claimant testified she had regular headaches prior to her December 2013 injury, but they were less severe than what she suffered after. Medical records additionally reveal that Claimant underwent a CT scan on February 4, 2013 for a diagnosis of dizziness.

Primary injury of December 23, 2013

Employee testified that she suffered the primary injury on December 22, 2013 when she slipped in the parking lot of the institution and hit the back of her head and neck on the running board of her truck. She testified that she felt very dazed immediately after the fall and had significant pain in the back of her head, neck, and right knee. She immediately reported her injury and eventually filed a workers' compensation claim. The Employer and Insurer accepted compensability of the case and authorized treatment.

Employee was initially seen at Pike County Memorial Hospital on the date of the injury where they noted right posterior neck pain, right elbow pain, and right knee pain after a fall at work. They performed CT scans of the cervical spine and head, which were negative. She was then referred to Dr. Henry who saw her on December 23, 2013. Dr. Henry noted right knee pain, right elbow pain, and neck pain. He also noted that she had nausea, dizziness, and blurred vision and was walking unsteady. Dr. Henry took her off work and prescribed Norco at that time. She followed up with Dr. Henry on December 26, 2013 and was put back on light duty. On January 2, 2014, Dr. Henry noted severe headaches and continuing neck and right knee pain and ordered physical therapy. On January 13, 2014, Dr. Henry continued her on light duty and recommended that she finish physical therapy. Finally, on January 22, 2014, Dr. Henry put her at maximum medical improvement.

Employee testified that after being released by Dr. Henry she asked Pam at CARO for additional treatment because she was still having severe headaches and neck pain, but no treatment was offered at that time. Therefore, she was forced to seek treatment on her own and ended up going to Eastern Missouri Health on February 6, 2014, due to neck pain and headaches with vomiting and photophobia. The doctor noted a concussion in December and ordered a CT scan of her head which was performed on February 10, 2014 and showed no acute intracranial process. She was prescribed Mobic, Flexeril and Sumatriptan and given a Toradol injection for her pain. She went back to the Emergency Room on February 18, 2014 and another CT scan was

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taken of her head, which was normal. Finally, she followed up at Eastern Missouri Health on February 24, 2014 and her Sumatriptan and anxiety medications were refilled.

CARO eventually authorized additional medical treatment and set up a visit with Dr. Cantrell on March 11, 2014. Dr. Cantrell noted left sided headaches, left sided neck pain, intermittent radiating pain into the left arm and hand, numbness and weakness in the left hand, and right knee pain. Dr. Cantrell ordered an MRI of the neck and right knee and recommended physical therapy. His diagnoses were head contusion, cervical sprain/strain and right knee sprain. An MRI of the neck was performed on March 28, 2014 that revealed C4-5 diffuse annular disc bulge with disc osteophyte complex and bilateral facet arthropathy contributing to bilateral foraminal stenosis, right worse than left; C5-6 diffuse annular disc bulge and asymmetric left facet arthropathy contributing to severe left foraminal exit stenosis; and C6-7 diffuse annular disc bulge with left foraminal disc protrusion contributing to severe left neural foraminal exit stenosis and encroaching on the left C7 nerve root. An MRI of the right knee was taken on the same day and showed thickening and increased signal of ACL likely related to a low-grade ACL sprain. Employee followed up with Dr. Cantrell on March 7, 2014 and was prescribed a Medrol dosepak. On April 28, 2014, Dr. Cantrell noted that the Medrol dosepak provided 25-30% reduction in neck pain but did not help her paresthesia or numbness. Dr. Cantrell ordered additional physical therapy and prescribed Voltaren gel and Flexeril.

Employee saw Dr. David Robson for an independent medical evaluation on May 20, 2014. Dr. Robson diagnosed her with a herniated disc with severe foraminal stenosis at C6-7 on the left and a disc bulge with severe spinal stenosis at C5-6 on the left. He recommended a left C7 selective nerve root block but felt that she would eventually need surgery consisting of a partial vertebrectomy of C6, a discectomy at C5-6 and C6-7 and a fusion from C5 to C7. He further opined that the prevailing factor in the development of symptoms and need for surgery was the work injury on December 22, 2013. On June 5, 2014, Dr. Robson issued a supplemental report stating that Employee was not employable in the open labor market in her current condition and would require restrictions including a 10-pound lifting limit, no overhead work, twisting, or awkward positions, and no repetitive loading of her cervical spine with any head gear. He also opined that the treatment she received up to this date had been fair and reasonable.

Dr. Hurford performed an epidural steroid injection on May 22, 2014. On June 2, 2014, Dr. Cantrell noted continued paresthesia in the left arm and ordered a left C6 nerve root injection and additional physical therapy. The left C6 nerve root injection was performed by Dr. Hurford.

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on June 5, 2014. Employee followed up with Dr. Cantrell on June 16, 2014 who noted that the injection did not provide any temporary or lasting relief. Dr. Cantrell recommended another injection, but Employee was hesitant to proceed with another injection since the last one did not help. Dr. Cantrell kept Employee on light duty while she considered whether to proceed with additional injections.

CARO ended up referring Employee to Dr. James Coyle for a surgical spine consultation on July 2, 2014. Dr. Coyle diagnosed her with cervicalgia and cervical myeloradiculopathy at C5-6 and C6-7 and recommended a C7 nerve block. Dr. Coyle also specifically concluded that the work injury was the prevailing factor of her condition and need for treatment. The left C6-7 nerve block was performed on that same day and, on July 8, 2014, Dr. Coyle noted partial relief with reduced numbness in the left arm, but some residual neck pain. At the follow-up on August 12, 2014, it was noted that Employee continued to have intractable neck pain, left sided paracervical pain and numbness in the long and ring finger of her left hand as well as weakness in her left triceps. Dr. Coyle recommended surgery in the form of an anterior cervical discectomy and fusion at C5-6 and C6-7 and opined that the work injury was the prevailing factor of her condition and her need for surgery. Surgery was performed on August 14, 2014 and Employee was taken off work until September 24, 2014, when she was returned to light duty. On October 7, 2014 Dr. Coyle noted that Employee had increased pain after returning to work and was taken off work again and advised to remain in a cervical collar for an additional week. Dr. Coyle also ordered a CT scan and prescribed Tramadol for her ongoing neck pain at that time. The CT scan taken on October 15, 2014 showed a solid inter-body fusion from C5 to C7 with internal disc derangement at C4-5 and facet joint arthropathy. Employee followed up with Dr. Coyle on November 26, 2014 and was kept on light duty.

On January 13, 2015, Dr. Coyle stated that Employee could work, observing normal safety precautions and referred her to physical therapy to focus on a home exercise program. In that note, Dr. Coyle reported "excellent" strength in both upper extremities. The physical therapy record dated January 16, 2015 noted only 4/5 strength in left shoulder abduction and flexion and 4+/5 strength in left shoulder external and internal rotation. Dr. Coyle also noted no "focal sensory deficits" in his January 13, 2015 report, however, the physical therapy report dated January 16, 2015 noted that median nerve tension reproduced symptoms on the left. Moreover, Dr. Coyle noted about eighty percent of normal cervical rotation, flexion and extension, while the physical therapy report three days later reported 75% extension and flexion.

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only 50% retraction, and only 46-48% rotation to the right and left respectively. Employee saw Dr. Coyle on February 10, 2015, where he noted reduced range of motion and residual numbness but released her at maximum medical improvement.

The final physical therapy record from February 9, 2015 reports ongoing 5/10 pain, aggravated by working on the computer, sitting too long, picking up anything with weight, end range motion, or sleeping. The report also notes that Employee dropped a couple of items over the weekend and noticed numbness coming back into the arm and hand. Moreover, the report noted moderate restriction in flexibility and weakness in muscle testing of the upper extremity. Finally, the report noted 18 pounds less grip strength in her left (dominant) hand.

Employee saw Dr. Trone, her primary care physician, on February 23, 2015. Dr. Trone noted that Employee continued to suffer from pain, numbness, and weakness of the neck and left arm. He also noted that Employee's symptoms had worsened to the point where she was unable to work around January 12, 2015. Dr. Trone diagnosed Employee with cervical radiculopathy and carpal tunnel syndrome and filled out long term disability forms for her.

Claimant's Testimony

Employee testified that as a result of the December 22, 2013 injury she has constant pain in her neck that radiates down her left arm. She testified that the pain is a 5-6/10 on average and a 7-8/10 at its worst. She also testified that activities like cleaning, driving, and cooking all aggravate her pain. She continues to have limited range of motion in her neck as well as numbness and weakness in her left hand. Moreover, she testified that she wakes up whenever her Tramadol wears off, has trouble going back to sleep, and sleeps in the recliner at times. On a good night she gets about five hours of sleep, but on bad nights she only gets two to three hours of sleep. She testified that this leaves her feeling constantly tired and sluggish which makes it difficult to concentrate. She also testified that she lies down throughout the day due to neck pain and limits her activities to try to prevent flare ups.

Regarding her ongoing headaches, Employee testified that she has two to three regular headaches a week. She rated the pain for these headaches as a 4/10 and testified that they last an hour or two. She also testified that she gets migraine headaches ever since the injury on December 22, 2013. She testified that these migraine headaches last anywhere from hours to full days and are associated with nausea as well as sensitivity to bright lights, screens, and flashing lights. She rated the pain for these migraines as a 7/10 and testified that she takes Tramadol and lies down in a quiet/dark room to get rid of these headaches.

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Regarding her right knee, Employee testified that she continues to have pain and a catching sensation, especially when going up and down stairs. She also testified that it gets to hurting at times when she is active, and she has to sit down. Moreover, she testified that she has pain when she kneels on her knee and pain and popping when she tries to stand back up.

Finally, regarding her anxiety and depression, Employee testified that her symptoms worsened as a result of the December 22, 2013 injury. She testified that she gets upset because of her physical limitations and constant pain. Her anxiety and depression are also worse because of her lack of sleep. She testified that she is tense all the time because of her neck pain, which doesn't help her anxiety, depression, and headaches. She also testified that she has a harder time being around people as a result of the work injury. She testified that since the injury she doesn't even like to go out to get groceries because she doesn't want to be around people.

Employee testified that she has looked for jobs since she stopped working but hasn't applied for anything because she doesn't think she can perform any job. She testified that she worked consistently from the time she graduated high school until she stopped working in 2015 and liked her jobs. She also testified that she has gone through extreme financial hardship due to her inability to work. She testified that she now relies on social security disability, rent assistance, energy assistance, food stamps, long term disability, and money from her parents in order to make ends meet.

Expert Testimony

Dr. Raymond Cohen:

Employee saw Dr. Raymond Cohen, a board-certified neurologist, for an independent medical evaluation on April 5, 2015. Dr. Cohen noted that Employee continued to suffer from neck pain on a daily basis as a result of her injury. He also noted that the neck pain made it difficult for her to get to sleep and stay asleep, which left her constantly tired during the day. At the time of the evaluation, Employee rated her pain at a 6-7/10 on average, but also stated that her pain could go up to an 8-9/10 with activities such as lifting pots and pans or driving. Dr. Cohen also noted that Employee continued to have numbness radiating down from her neck to the left arm, hand, and fingers as well as weakness in her left (dominant) arm. Moreover, he noted that she had difficulty gripping and grasping with the left hand and dropped things regularly. He also noted that the neck pain radiated down her left arm to the fingers, and she had difficulty bringing her left arm over her head. Employee stated that she had difficulty driving because it was hard for her to turn her neck. She also told Dr. Cohen that she had to sit on the

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couch frequently with a heating pad on her neck in order to relieve the pain. Finally, she told Dr. Cohen that her neck pain affected her ability to bowl, garden, cook, clean, and walk her dog.

Regarding her headaches, Dr. Cohen noted that she continued to have pain along the back of her head and the left frontal area at times. Employee stated that she had 2-3 headaches a month that required her to lie down and made it impossible to participate in any of her activities. Dr. Cohen further noted that some of Employee's headaches are associated with nausea and that her headaches are made worse with bright lights and loud sounds. Regarding her right knee, Dr. Cohen noted that she continued to have pain in the joint that she rated as a 7/10, especially when going up steps. She also described extreme pain if she had to get down on her knee as well as a pulling like feeling behind the right kneecap at times.

Dr. Cohen reported that Employee stopped working on January 12, 2015 because she could no longer do her job duties as a correctional officer as a result of her neck pain, lost range of motion, and upper extremity weakness and pain. Furthermore, he noted that she could only sit about 30 minutes without having to get up and move around and could only stand about 30-45 minutes before she had to sit down.

Regarding her prior hand symptoms, Dr. Cohen noted numbness and tingling in both hands prior to the injury on December 22, 2013. He also noted swelling in the fingers of both hands. These symptoms made it painful to type or perform other similar activities.

On examination, Dr. Cohen noted that Employee appeared to be in moderate discomfort due to her neck and left arm. He also noted reduced grip strength in the hands and median sensory loss due to pain. Phalen's and Tinel's were also both positive on physical examination.

Regarding her right knee, Dr. Cohen noted that she complained of pain with extension and that anterior drawer testing was positive and McMurray's revealed increased joint line pain medially. Regarding the cervical spine Dr. Cohen noted paraspinous muscle spasms as well as marked tension along the lower cervical segments. Physical examination of the neck also revealed a 10-degree loss in flexion, and 30-degree loss in extension, a 15-degree loss in side bending, a 40-degree loss in right rotation, and a 30-degree loss in left rotation.

As a result of the work-related injury on December 22, 2013, Dr. Cohen diagnosed Employee with C6-7 cervical radiculopathy, central and foraminal stenosis at C5-6, central and foraminal stenosis at C6-7, and disc prolapse at C5-6 and C6-7. He also diagnosed her with cervical syndrome with myofascial pain, cervicogenic headaches, and right knee prepatellar syndrome.

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Regarding her prior injuries and conditions, Dr. Cohen provided diagnoses of bilateral carpal tunnel releases, bilateral wrist ganglion excisions, and left de Quervain's release. Dr. Cohen rated her disabilities at 50% of the neck, 15% of the head, and 15% of the right knee for the primary work injury. He also provided ratings of 30% of the left wrist and 30% of the right wrist for her preexisting conditions. Additionally, Dr. Cohen provided the following restrictions for the work-related injuries:

1. Regarding her cervical spine: she should be restricted from repetitive bending, turning, or twisting of the cervical spine and no keeping the head and neck in any type of sustained or awkward position. No lifting greater than 5-10 pounds except on an occasional basis.

1. Regarding the left upper extremity: no lifting from the ground to the chest level greater than 5 pounds except on occasion. No overhead lifting greater than 5 pounds. No repetitive work with the left upper extremity.

1. Regarding the headaches: she needs to be allowed to go lie down in a quiet dark room when she has a severe headache or to be allowed to go home if she cannot obtain any relief of the headache.

1. In regard to her right knee: she needs to be restricted from kneeling or squatting with the right knee, no repetitive movements involving the right lower extremity, no excessive use of stairs or steps, and no ladder work.

1. She also needs to be restricted from sitting greater than 30-40 minutes without changing positions, no standing greater than 30 minutes without changing positions, and no walking greater than 100-150 yards without being allowed to sit and rest.

Dr. Cohen provided the following restrictions for her prior conditions:

1. I would have restricted her from repetitive use of the hands such as repetitive gripping, grasping, and exposure to vibratory tools, forceful use of the hands as well as awkward use of the hands.

Regarding future medical treatment, Dr. Cohen stated that it would be reasonable for her to be on appropriate medications for chronic neck pain including analgesics, anti-inflammatory agents, and muscle relaxants. He also opined that she needs to be on Sumatriptan for her work-related headaches and will need to be followed by a physician to prescribe those medications. Moreover, Dr. Cohen opined that the medical bills for treatment related to her primary work injury

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were fair and reasonable as well as necessary to cure and relieve her from the effects of the work injury.

Finally, Dr. Cohen opined that Employee's combination of disabilities renders her permanently and totally disabled and not capable of gainful employment in today's open labor market.

Dr. Cohen evaluated Employee again on February 4, 2020. He noted that Employee continued to have 2-3 severe headaches a month, where she will go lie down in a dark, quiet room and take Tramadol and Tylenol. He also noted that she continued to complain of pain in her right neck that radiates down her left upper arm with numbness and tingling into her left hand and weakness in the left arm and hand. She also continued to experience right knee pain when going downstairs at the time of this evaluation. After reviewing additional records from Dr. Coyle, Dr. Wolf, Mr. Eldred, and Mr. England, Dr. Cohen's opinion remained unchanged that Employee is permanently and totally disabled due to the combination of her disabilities and is not capable of gainful employment in today's open labor market.

Dr. James Coyle:

Dr. Coyle issued a report on July 16, 2015 after reviewing Dr. Cohen's April 6, 2015 report. (Exhibit A) Dr. Coyle recommended an extensive evaluation of Employee due to the symptoms reported by Dr. Cohen. He also recommended a repeat CT scan with fine cuts to evaluate for pseudo arthrosis. Finally, he recommended an EMG nerve conduction study to assess any weakness or numbness.

Dr. Cohen issued a supplemental report on August 13, 2015, specifically listing the records that he reviewed in preparation for his April 6, 2015 report. (Exhibit A)

The Employer and Insurer sent Employee back to Dr. Coyle on January 22, 2019. Dr. Coyle noted that Employee was on disability at the time of the evaluation. He also noted that her chief complaint was headaches as well as left-sided neck pain and arm pain. Dr. Coyle reviewed a CT scan and EMG and recommended no additional treatment.

Mr. Phillip Eldred:

Employee saw Phillip Eldred for a vocational evaluation on November 18, 2015. (Exhibit 4) Mr. Eldred opined that Employee had impairments regarding her bilateral upper extremities and anxiety that were obstacles to her employment prior to December 22, 2013. Mr. Eldred also opined that Dr. Cohen gave restrictions at less than the sedentary work level. At the evaluation, Employee was administered the Wide Range Achievement Test and she tested in the bottom 10% in reading, in the bottom 21% in spelling, and in the bottom 4% in math. These

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scores are equivalent to a 7th grade reading level, a 9th grade spelling level, and a 4th grade math level. Mr. Eldred also tried to administer the Purdue Pegboard test to test Employee's dexterity, but the test had to be stopped due to pain in her neck radiating to her left hand.

Mr. Eldred noted that Employee had not worked in competitive employment since January 13, 2015 and was receiving long-term disability at the time of the evaluation. He also concluded that as Employee's medical limitations are less than the sedentary work level, she cannot return to her previous work, has no transferable skills, has no training potential, and cannot perform any unskilled jobs. Mr. Eldred further concluded that even if Employee could perform sedentary work, she would not be able to return to any of her previous occupations and would not have any transferable jobs. Moreover, her worker trait profile would only be comparable to four sedentary jobs if she could be retrained and perform sedentary work (one of those jobs being a psychic reader), and her worker trait profile would only be comparable to one unskilled sedentary occupation. Mr. Eldred also believed that Employee would have problems being retrained due to her constant pain, use of narcotic pain medication, and low academic scores. Therefore, he concluded that it is highly unlikely that any reasonable employer in the normal course of business would hire Employee for competitive, gainful employment and she is thus unemployable in the open labor market and permanently and totally disabled. Finally, Mr. Eldred opined that Employee's permanent and total disability is a result of her injury on December 22, 2013 in isolation even though he noted that she had pre-existing limitations.

Mr. James England:

James England performed a vocational evaluation on behalf of the Employer and Insurer on October 3, 2016. (Exhibit B) Mr. England noted that Employee's wrists were never the same after her bilateral carpal tunnel surgery in that they were weaker and she continued to experience trouble with pain, numbness, etc. He also noted that Employee wore braces on her wrists at work prior to the injury on December 22, 2013. These braces were approved by her employer. Mr. England further noted Employee's depression and ongoing anxiety. And, he noted that Employee had 2-3 milder headaches a week as well as 1-2 severe headaches a week. At the time of this evaluation, Employee was taking Ibuprofen for less severe headaches and Sumatripan for severe headaches. She was also taking Buspar for anxiety and Tramadol for pain. Mr. England noted that Employee continued to suffer from numbness and tingling in her left arm, difficulty reaching overhead, and difficulty kneeling and squatting. He also noted that she could only lift her 19-pound grandchild briefly and could only sit for about 30 minutes before getting up to

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move around. According to Mr. England, Employee no longer participated in gardening and bowling at the time of the evaluation and had limited ability to fish. Moreover, Employee was only getting about three hours of sleep some nights and only five hours of sleep on a good night. Mr. England also noted that Employee needed assistance from her husband to do the mopping, vacuuming, cooking, and grocery shopping. In the end, Mr. England opined that Dr. Cohen's findings, in total, would preclude Employee from any type of employment.

Dr. A.E. Daniel:

Employee saw Dr. A. E. Daniel, a board-certified psychiatrist, for an independent medical evaluation on December 13, 2016 and January 6, 2017. Dr. Daniel issued a report on February 2, 2017. (Exhibit 3) Dr. Daniel noted that Employee had a history of anxiety and depression starting in 2007 and culminating in an attempted overdose in 2010. He also noted that her anxiety and depression worsened after the work-related injury in 2013. Specifically, he noted that after the accident she would "get mad" because she was unable to do things that she used to do. She also could not be around a lot of people due to her anxiety and depression. At the time of the evaluation, Employee was taking Buspar for anxiety and Sumatriptan for migraines. On examination, Dr. Daniel noted that Employee's mood was moderately depressed and anxious with corresponding depression and constricted affect. Moreover, Employee's MMPI testing produced a valid profile similar to individuals experiencing psychological distress who may experience self-doubt, low morale, depressed mood, feelings of guilt and worthlessness, poor memory, indecisiveness, obsessiveness, concentration problems, loss of sleep and appetite, and a slow personal tempo. People with a similar profile may also feel high-strung, insecure, inferior, lonely, and poorly understood. Additionally, individuals with this profile report somatic problems and view their physical health as failing. Finally, there is a strong possibility that individuals with a similar profile to Employee have seriously contemplated suicide.

Dr. Daniel diagnosed Employee with major depressive disorder (recurrent, moderately severe) and anxiety disorder (unspecified). Regarding causation, Dr. Daniel concluded that the cause of Employee's major depressive disorder is multifactorial, however, the 2013 injury and the loss of her job are the primary, and therefore, the prevailing factors leading to the second episode of depression. Dr. Daniel rated Employee's psychiatric disability at 30% of the body as a whole related to the December 22, 2013 injury with an additional 15% disability associated with her pre-existing depression and anxiety. Dr. Daniel also concluded that Employee is totally

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and permanently disabled due to the combined impact of both her physical and psychiatric disabilities. He further elaborated that this total disability is due to the combination of pre-existing psychiatric disability and the disability (physical and psychiatric) caused by the last injury. Dr. Daniel also noted that Employee would have significant deficit in sustaining attention, maintaining persistence and pace, and completing assigned work tasks. Finally, regarding Employee's need for ongoing psychiatric treatment, Dr. Daniel recommended that Employee continue to receive medication management and psychotherapy.

Dr. Christopher Wolf:

Dr. Christopher Wolf evaluated Employee on behalf of the Employer and Insurer on September 10, 2018. Dr. Wolf noted that after being released by the workers' compensation doctors, Employee sought treatment with her primary care physician and was taking Tramadol 2-3 times a day due to pain. He also noted that Employee's headaches gradually worsened over time and she continued to suffer from numbness and pain in the left upper extremity. Moreover, Dr. Wolf noted that Employee had ongoing memory and cognitive impairments that both her and her husband felt had not improved. Dr. Wolf also noted depression, sleep disturbances, anxiety, increased stress, and fatigue in his report. Dr. Wolf diagnosed Employee with a concussion, headache, and cervical disc disorder with radiculopathy. He recommended that Employee get off most of her medications to make sure she is not suffering from medication overuse headaches and also recommended a prophylactic medication to help with the headaches. Finally, he recommended an EMG and nerve conduction test to assess any ongoing cervical radiculopathy as well as a follow-up visit with Dr. Coyle.

Dr. Wolf authored a report on March 10, 2019, stating that Employee was at maximum medical improvement. (Exhibit C) Additionally, Dr. Wolf stated that due to Employee's ongoing headaches related to her head injury she has 1% total body permanent partial disability.

RULINGS OF LAW

Nature and Extent of Disability against the Employer/Insurer

Based upon the competent and substantial evidence, I find:

Claimant's testimony was credible and consistent with the medical evidence. The following findings of fact are based on the hearing testimony of Claimant, Claimant's deposition testimony, medical records and the depositions of experts admitted into evidence.

Claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and the injury. Cook v. Sunnen Products

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

The term "total disability" is defined as the "inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." Section 287.020(7), RSMo. "An employee is permanently and totally disabled if no employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition." Pennewell v. Hannibal Regional Hosp., 290 S.W.3d 919, 924-25 (Mo. App. E. D. 2013).

It is undisputed that claimant suffered permanent disability to her head and neck as a result of her December 2013 work accident. The only question that remains is the extent of this disability. Claimant alleges that the work accident of December 22, 2013 rendered her permanently and totally disabled, either alone or in combination with other pre-existing conditions.

Under Section 287.020.7, "total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Fletcher v. Second Injury Fund, 922 S.W.2d 402, 404 (Mo. App. W.D.1996). The primary inquiry is whether an employer can reasonably be expected to hire the claimant, given his present physical condition, and reasonably expect the claimant to successfully perform the work. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. App. E.D. 2007).

Second Injury Fund liability exists only if an employee suffers from a pre-existing permanent partial disability that constitutes a hindrance or obstacle to employment or reemployment that combines with a compensable injury to create a disability greater than the simple sums of disabilities. Section 287.220.1 RSMo 2000.

It is clear Claimant suffered from pre-existing disabilities that constituted a hindrance or obstacle to her employment. She underwent multiple upper-extremity surgeries and suffered from psychiatric disability that led to multiple hospitalizations and frequent contact with mental health professionals. Nevertheless, an Administrative Law Judge must first determine the extent

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of the compensable injury. *Roller v. Treasurer of the State of Mo.*, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. *Id.* It is, therefore, necessary that the employee's last injury be closely scrutinized to determine if it alone results in permanent total disability.

In this case, Employee's testimony established a substantial injury on December 22, 2013, and an inability to return to the open labor market in any employment capacity following that injury. "The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." *Reiner v. Treasurer of State of Mo.*, 837 S.W.2d 363, 367 (Mo. App. E.D. 1992) (overruled on other grounds by *Hampton*, 121 S.W.3d at 226). Employee testified that as a result of the primary injury she suffers from constant, debilitating neck pain that radiates down her dominant arm. She also testified that the neck injury has led to numbness and weakness in her dominant arm. She testified that she also suffers from severe headaches as a result of the concussion sustained on December 22, 2013 as well as trouble concentrating. Moreover, she testified that she can't sleep as a result of these symptoms, which leaves her feeling constantly fatigued. Finally, she testified that these symptoms and her limitations have aggravated her mental health condition to the point where she avoids people entirely and regularly feels angry and depressed about her situation.

The medical physicians' evaluations support the testimony of Employee. Dr. Cohen, Dr. Daniel, and Mr. Eldred all concluded that Employee is permanently and totally disabled. Dr. Cohen rated Employee's disability referable to the primary injury at 50% of the neck, 15% of the head, and 15% of the right knee. Moreover, he provided significant restrictions referable to the last injury alone. Dr. Daniel also provided a rating of 30% disability associated with the last injury alone. Finally, Mr. Eldred concluded that Employee is permanently and totally disabled as a result of the December 22, 2013 injury in isolation. Furthermore, Mr. England concluded that Dr. Cohen's restrictions related to the primary work injury would render Employee permanently and totally disabled, specifically stating, "I believe the need that he recommended regarding lying in a dark room as needed for severe headaches would likely preclude any type of employment based on the frequency of these problems that she reported to me." I find that Mr.

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England's assessment of this specific restriction to be compelling, in and of itself, to find that Employee is permanently and totally disabled due to the primary injury alone.

I find the opinion of Mr. Eldred credible on this issue. It is unlikely that any reasonable employer would hire Employee as a result of the physical restrictions and limitations solely associated with the December 22, 2013 injury. It is also unlikely that Employee is capable of being retrained as a result of her pain and educational profile. Moreover, the medical, vocational, and claimant testimony clearly indicate that Employee would not be able to perform any work for which she was hired, and she is thus permanently and totally disabled. Therefore, I find that the Employer and Insurer are responsible for all compensation and the Second Injury Fund has no liability.

Based on the whole record, particularly the opinion of Mr. Eldred, I find and conclude that Claimant is permanently and totally disabled from the last injury alone. Therefore, the Employer is liable for the payment of permanent and total disability benefits. Weekly benefits of $365.69 shall begin on February 10, 2015. Such permanent total disability benefits shall continue to be paid for the remainder of Claimant's lifetime.

Issue of Unpaid Medical

Claimant seeks reimbursement for past medical expenses incurred as a result of treatment she obtained on her own without employer authorization. While an employer is charged with the duty of providing injured employees with medical care, the employer is given control over the selection of a medical provider. *Blackwell v. Puritan-Bennett Corp.*, 901 S.W.2d 81, 85 (Mo App. E.D. 1995). It is only when the employer fails to do so that the employee is free to pick his own provider and assess the cost against his employer. *Id.* Therefore, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand has been made on the employer to furnish treatment, and the employer refuses or fails to provide the needed treatment. *Id* (citing *Hawkins v. Emerson Electric Co.*, 676 S.W.2d 872, 880 (Mo App. 1984).

Here, the issue of whether Employer refused to provide needed treatment is disputed and the evidence presented is insufficient to meet Claimant's burden of proving that Employer refused to provide needed treatment. On the contrary, the evidence is clear that claimant was under a nearly consistent course of care from the time of her first demand for treatment to her final release from Dr. Coyle in February 2015. Accordingly, there is no basis for an award of reimbursement for unauthorized medical treatment.

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Missouri Law requires that employers provide injured employees with medical treatment.

Section 287.140.1 reads:

> "In addition to all other compensation paid to the Claimant under this section, the Claimant shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury."

Employer shall provide medical treatment to cure and relieve the effects of the injury even though some of such treatment may also give relief from pain caused by a preexisting condition. *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 512 (Mo. App. W.D. 2011).

The threshold for determining if additional treatment is needed is reasonable probability. *Downing v. Willamette Industries, Inc.*, 895 S.W.2d 650, 655 (Mo.App. 1995). "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." *Tate v. Southwestern Bell Telephone Co.*, 715 S.W.2d 326, 329 (Mo.App. 1986). Section 287.140.1, RSMo. does not require that the medical evidence identify particular procedures or treatments to be performed or administered. *Talley v. Runny Meade Estates, Ltd.*, 831 S.W.2d 692, 695 (Mo.App. 1992). Further, the employer/insurer may be ordered to provide medical treatment to cure and relieve a claimant from the effects of the injury even though some of such treatment may also give relief from pain caused by a preexisting condition. *Hall v. Spot Martin*, 304 S.W.2d 844, 854-55 (Mo. 1957). See also *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511 (W.D. App. 2011).

Here, it is clear that future medical treatment is required to continue to cure and relieve the effects of the injury. Dr. Cohen stated that it would be reasonable for Employee to be on appropriate medications for chronic neck pain including analgesics, anti-inflammatory agents, and muscle relaxants. He also opined that she needs to be on Sumatriptan for her work-related headaches and will need to be followed by a physician to prescribe those medications. Dr. Wolf seemed to agree with these statements, recommending that Employee be switched to a prophylactic headache medication. Finally, Dr. Daniel stated that Employee would benefit from medication management and psychotherapy for her depression. The Employer should be responsible for providing this ongoing treatment even though it may also give relief for her preexisting mental health condition consistent with the ruling in *Tillotson*.

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Employee testified that she is currently prescribed Tramadol and a muscle relaxer for her pain as well as Buspar and generic Xanax for her anxiety and depression. She testified that she is currently getting these medications from her primary care physician. I find Employee's testimony of continued neck and radicular pain credible. I also find Employee's testimony regarding worsening anxiety and depression credible. Therefore, I find that Employee has sustained her burden of establishing that she is in need of additional treatment as set forth by Dr. Cohen and Dr. Daniel. Therefore, the Employer is ordered to provide treatment, including, but not limited to medication, therapy and other strategies as recommended by physicians and desired by the employee.

Therefore, based on the evidence, Claimant is awarded benefits as detailed as follows: I find Claimant became permanently and totally disabled as a result of the primary injury of December 22, 2013 alone, and that compensation should begin on February 10, 2015, the date Claimant was placed at maximum medical improvement. Because I find that Claimant is permanently and totally disabled as a result of the primary injury of December 22, 2013 alone, the Second Injury Fund has no liability.

This award is subject to a lien in the amount of 25% of the additional payments hereunder in favor of the Claimant's attorney, Van Camp Law Firm, LLC, for necessary legal services rendered to claimant.

**Jason A.** Digitally signed by Jason A. Tilley Date: 2021.06.14 13:03:42 -05'00'

By: ***_******_******_******_***__

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