Rebecca Illiges v. Gentiva Health Services, Inc.

qualifying preexisting disabilities. He further relied on the opinion of vocational expert Delores Gonzales that the employee was PTD as a result of her January 23, 2015, work accident in combination with preexisting disabilities.

The ALJ concluded that the employee established SIF liability for PTD under 287.220.3. He found the SIF liable for PTD benefits beginning June 28, 2017. This start date comported with the parties' stipulation that the employee reached maximum medical improvement (MMI) on June 27, 2017.

The SIF filed a timely application for review, alleging the ALJ erred in:

- Relying on Dr. Volarich's expert medical opinions to satisfy 287.220.3(2)(a)a(iii).

- Finding that the employee's preexisting low back and pancreatitis met the requirements of 287.220.3(2)(a) and ignoring evidence that showed that the employee was PTD when considering multiple preexisting conditions.

- Failing to credit the SIF for amounts employer/insurer paid for employee's PPD.

The SIF's brief also challenged the credibility of vocational expert Delores Gonzales' opinion. Because its application for review did not raise this issue, we find it is not properly preserved for our review. See Lawson v. Emerson Electric Co. 809 S.W.2d 121 (Mo. App. 1991) and Hutson v. Treasurer of Mo., 365 S.W.3d 269 (Mo. App. 2012).

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of the SIF's entitlement to a credit for amounts the employer/insurer paid for PPD attributable to the employee's January 23, 2015, primary injury.

The parties tried the employee's 2015 SIF claim on March 29, 2021, less than a month before the Supreme Court handed down its April 20, 2021, decision in Treasurer v. Parker, 622 S.W. 3d 178 (Mo. banc 2021). Parker was highly anticipated because it involved issues involving the application of $\S 287.220 .3(2)(a)$ to claims like the employee's herein. Recognizing the uncertain legal terrain involving statutory interpretation of $\S 287.220 .3$, the employee's attorney solicited Dr. Volarich's opinion regarding multiple scenarios relating to medical causation of employee's PTD. Dr. Volarich amended his original September 18, 2018, IME several times to address employee's attorney's additional questions in anticipation of the Supreme Court's Parker ruling. Dr. Volarich gave his last opinion at his November 6, 2020, deposition.

The ALJ found:

At the time of his deposition on November 6, 2020, Dr. Volarich testified that Employee was permanently and totally disabled as a result of her January 23, 2015 work-related injury in combination with her pre-existing disabilities. As a further clarification, he testified that Employee was also permanently and totally disabled as a result of her January 23, 2015 workrelated injury in combination with just her pre-existing lumbar spine and pancreatitis. Finally, Dr. Volarich opined that the pre-existing disability relating to her pancreatitis and lumbar spine directly and significantly aggravated or accelerated the subsequent January 23, 2015 work-related injury. ${ }^{2}$

The SIF urges us to find that Dr. Volarich's amendments to his original opinion and responses designed to address different potential interpretations of 287.220 .3 are evidence that he lacked credibility. The employee responded to these arguments by noting that the SIF failed to provide any expert opinions to counter Dr. Volarich or vocational expert Delores Gonzales and that its appeal hinges on ignoring evidence contrary to the SIF's position and the ALJ's credibility findings and award. In this case, we agree with the employee's position. We further find that a medical expert's alternate opinions on the issue of medical causation in response to an attorney's questions based on assumptions relating to various potential legal interpretations of $\S 287.220 .3$ does not, in and of itself, demonstrate a lack of trustworthiness or credibility.

SIF's Entitlement to Credit for Monies Employer/insurer Paid to Employee for PPD Section 287.220.2 RSMo provides that the liability of the SIF only commences "after the completion of payment of the compensation by the employer." An award of PTD against the SIF first requires a determination of PPD attributable to the primary injury. See Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240,248 (Mo. 2003). The January 1, 2014, amendments enacting § 287.220 .3 did not amend or repeal this provision of $\S 287.220 .2$. We therefore concur with the SIF's assertion that, if found liable for PTD, the SIF is entitled to a credit for amounts employer has paid to employee for disability related to the primary injury.

In this case, the ALJ found that employee suffered 30\% PPD of the body as a whole referable to the neck ( 120 weeks) and 40 % PPD of the left upper extremity at the 232week level ( 92.8 weeks) as a result of her January 23, 2015, primary injury. ${ }^{3}$ After finding, as the parties stipulated, that the employee reached MMI on June 27, 2017, he found the SIF liable for weekly PTD benefits starting June 28, 2017.

We conclude that the ALJ erred in not allowing the SIF a credit against its PTD obligation for PPD paid by employer/insurer related to employee's primary injury.

[^0]

[^0]: ${ }^{2} Award, p. 8.

{ }^{3}$ Id., pp. 8-9.

We modify the award of the administrative law judge as to the issue of the SIF's liability.

The employee is entitled to, and the SIF is hereby ordered to pay, weekly PTD benefits in the amount of $\ 186.67 beginning 212.8 weeks after June 28, 2017, for employee's lifetime, as provided by law.

The award and decision of Chief ALJ Carl Strange is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $\qquad 24^{\text {th }}$ day of January, 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:

Secretary

As a matter of law, I concur with the majority's decision to the extent that it allows the Second Injury Fund (SIF) a credit of 212.8 weeks for permanent partial disability (PPD) attributable to the employee's primary injury against its PTD award.

However, 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 decision of the administrative law judge (ALJ) awarding permanent total disability (PTD) against the Second Injury Fund (SIF) should be reversed.

As stated in the SIF's application for review and persuasively argued in its brief, the ALJ erred in awarding employee PTD under § 287.220.3 based on Dr. David Volarich's expert opinion.

Dr. Volarich's opinions regarding the effects of the employee's preexisting conditions and the cause of her PTD are inconsistent. It is unclear what Dr. Volarich's genuine opinion is, as he agreed to multiple variations in his views. Therefore, his statements cannot be considered credible evidence as to the nature and extent of the employee's disabilities or the cause of her total disability.

As part of Dr. Volarich's initial, 2018 evaluation Dr. Volarich opined that the employee was PTD due to the primary injury in combination with her preexisting medical conditions. Dr. Volarich diagnosed four separate preexisting conditions. His discussion of synergistic effects discussed all four of these conditions and their impact on the employee. While discussing these synergistic effects, Dr. Volarich gave no opinions about and used no language concerning the requirements of $\S 287.220 .3$. He further referenced an L4-5 fusion employee had in May of 2016, over a year after her primary injury, as relevant to the employee's PTD.

Dr. Volarich's August 2020 addendum attempted to address § 287.220.3 but failed to state that the employee's lumbar spine directly and significantly aggravated or accelerated the employee's primary injury, as required by the statute. The addendum includes no mention of the employee's prior cervical spine or right foot conditions. Though the addendum concludes by opining that the employee was PTD due to a combination of her primary injury and lumbar syndrome, Dr. Volarich admitted in his deposition testimony that this was incorrect.

Dr. Volarich's third addendum attempts to address only two of the employee's preexisting conditions, pancreatitis and lower back. It includes no specific analysis and fails to amend his prior PTD opinions, which stated that the employee was PTD due to a combination of her primary injury and all of her preexisting conditions. Dr. Volarich went on in his deposition to change his PTD opinion, stating that he felt the employee was PTD due to a combination of her primary injury and her preexisting pancreatitis and low back condition, emphasizing a synergistic effect.

Dr. Volarich's opinions morphed over time with each request from the employee's counsel, not because of new evidence or records, but because he was asked to fit the

Employee's preexisting conditions into the categorical requirements of $\S 287.220 .3$. While he attempts to give opinions to support these requirements, his opinions are vague generalizations. He speaks in general terms and does not explain how either of the employee's preexisting conditions actually directly and significantly aggravated or accelerated her primary neck and left shoulder injuries. His opinions are thus not credible, are insufficient to meet the categorical requirements of that statute, and cannot be considered sufficient evidence upon which to base an award of PTD against the SIF. Section 287.220 .3 was added to the law to provide stricter requirements for SIF liability. Even under $\S 287.220 .3$, there must be more than a blanket statement to find SIF liability. See Winingear v. Treasurer of State, 474 S.W.3d 203 (Mo. App. 2015).

As Dr. Volarich's opinions are not credible, the ALJ's award is not supported by competent evidence. Even assuming arguendo that Dr. Volarich's opinions are to be believed, his opinions are still insufficient to support a finding of SIF liability. The ALJ's determination and interpretation of $\S 287.220 .3(2)$ (a)a(iii) based on Dr. Volarich's opinions renders the language "directly and significantly" in the statute meaningless and redundant. It is contrary to the legislative intent of the 2014 amendments to the law and the strict construction mandate of $\S 287.800$. Such an interpretation affronts the objectives of statutory construction and should not be accepted.

Because the majority concludes otherwise, I respectfully dissent.


Reid K. Forrester, Member

Employee: Rebecca Ellen Illiges

Injury No. 15-004011

Dependents: N/A

Employer: Gentiva Health Services d/b/a American Home Care

Additional Party: Second Injury Fund

Insurer: Trumbull Insurance Company

Hearing Date: March 29, 2021

Checked by: CS/kg

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 23, 2015.
5. State location where accident occurred or occupational disease contracted: St. Francois County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was loading a heavy bag which shifted causing injury to her left shoulder and neck.

Employee: Rebecca Ellen Illiges

Injury No. 15-004011

1. Did accident or occupational disease cause death? N/A.

1. Parts of body injured by accident or occupational disease: Left shoulder and neck.

1. Nature and extent of any permanent disability: (See Findings).

1. Compensation paid to date for temporary total disability: $13,390.32.

1. Value necessary medical aid paid to date by the employer-insurer: $90,545.72.

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 280.00.

1. Weekly compensation rate:

- 186.67 for temporary total disability and permanent total disability; and

- $186.67 for permanent partial disability.

1. Method wages computation: By Agreement.

1. Amount of compensation payable:

a. Employee's claim against the employer-insurer previously settled by compromise settlement agreement.

b. Employee awarded permanent total disability benefits from Second Injury Fund at a rate of $186.67 per week beginning June 28, 2017 (See Findings).

1. Second Injury Fund liability: Yes.

1. Future requirements awarded: N/A.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 costs plus 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kenneth A. Seufert

On March 29, 2021, the employee, Rebecca Ellen Illiges, appeared in person and by her attorney, Kenneth A. Seufert, for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General, Rachel R. Harris. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about January 23, 2015, Gentiva Health Services d/b/a American Home Care was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Trumbull Insurance Company.
2. On or about January 23, 2015, the employee was an employee of Gentiva Health Services $\mathrm{d} / \mathrm{b} / \mathrm{a}$ American Home Care and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about January 23, 2015, the employee sustained an accident or occupational disease arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 280.00, her rate for temporary total disability and permanent total disability is $\ 186.67, and her rate for permanent partial disability is $\ 186.67.
7. The employee's injury is medically causally related to the work injury occurring on or about January 23, 2015.
8. The employer has furnished $\ 90,545.72 in medical aid to the employee.
9. The employer has paid temporary total disability benefits at a rate of $\ 186.67 per week for a total of $\ 13,390.32.
10. The employee reached maximum medical improvement on June 27, 2017.

1. Nature and extent of disability.
2. Liability of the Second Injury Fund.

The following Employee's Exhibits were offered and admitted into evidence:

1. A. Report of Dr. David Volarich;

B. Addendum Report of Dr. David Volarich;

C. Curriculum Vitae of Dr. David Volarich;

D. Records and Documents Provided to Dr. David Volarich;

E. Addendum Report of Dr. David Volarich;

F. Addendum Report of Dr. David Volarich;

G. Deposition of Dr. David Volarich;

1. A. Report of Delores Gonzalez;

B. Curriculum Vitae of Delores Gonzalez;

C. Records and Documents Provided to Delores Gonzalez;

D. Addendum Report of Delores Gonzalez;

E. Deposition of Delores Gonzalez;

1. Report of Injury;
2. Claim for Compensation;
3. Medical Records for Employee's Injuries Sustained on January 23, 2015 of:

A. Midwest Health Group/Convenient Care;

B. Dr. Paul Maynard;

C. Pro-Rehab;

D. Parkland Health Center; and

E. Dr. Mitchell Rotman/The Orthopedic Center of STL;

1. Medical Records for Employee's Injuries Sustained PRIOR to January 23, 2015 of:

A. Advanced Pain Center;

B. Midwest Health Group;

C. Dr. Raul Borrego/Medical Arts Clinic;

D. Parkland Health Center;

E. Midwest Imaging Center;

F. Dr. Rafael Figueroa Dugarte/MARMC;

G. Missouri Baptist Medical Center; and

H. Dr. Xiaohui Fan/Select Pain \& Spine Center;

1. Medical Records for Employee's Injuries Sustained POST January 23, 2015 of:

A. Dr. Raul Borrego/Medical Arts Clinic;

B. Midwest Imaging Center;

C. Missouri Baptist Medical Center;

D. Dr. Michael Fan/Mineral Area Pain Center, P.C.; and

E. Dr. David Robson/Comprehensive Spine Care, P.C.;

1. Social Security Administration Notice of Award;
2. Education History;
3. Work History;
4. Medical Expense Summary and itemized bills of:

A. Dr. David Robson; and

B. Missouri Baptist Medical Center;

1. Medical Records of Dr. Michael Fan;

A. Medical Records of Dr. Michael Fan;

1. Walgreens Printout;

A. Walgreens Printout;

1. Medical Records of Dr. David Robson;
2. Medical Records of Dr. David Robson;

1. Medical Records of Missouri Baptist Medical Center; and
2. Medical Records of Parkland Health Center for:

A. Recurrent Pancreatitis with Abdominal Pain;

B. Abdomen and Pelvis.

- The test for finding the Second Injury Fund liable for permanent total disability benefits in this case is set forth in Section 287.220.3 RSMo as follows:

"(1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

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

**Injury No. 15-004011**

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250.

- In accordance with Section 287.800 RSMo:

> "1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

> 2. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts."

Rebecca Illiges ("Employee") has requested an award of permanent total disability benefits against the Second Injury Fund. In support of this position, Employee has offered her medical records along with the opinions of Dr. David Volarich and Vocational Rehabilitation Expert, Delores Gonzalez. The Second Injury Fund did not offer any contradictory expert opinion in support of their position that they are not liable for benefits. If Employee is permanently and totally disabled, the Second Injury Fund is only liable for permanent total disability benefits if Employee complies with Section 287.220.3 RSMo (post January 1, 2014). The Second Injury Fund is also not liable if the last injury alone caused Employee to be permanently and totally disabled.

Employee was born in 1959 and resides in Park Hills, Missouri with her husband. Although Employee did not graduate high school or obtain a GED, she received her CNA certificate in 1992. She has no prior military service, limited computer skills, and difficulty with reading comprehension and spelling. Employee's previous work experience includes car hopping, cleaning houses, weatherizing homes, working in a greenhouse, and owning an auto sales shop. Employee began working for Gentiva Health Services d/b/a American Home Care ("Employer") in 2001. As part of her duties for Employer, Employee would go to client's home, assist client with chores, clean, cook, run errands, do laundry, and pick up food.

On January 23, 2015, Employee was picking up food for a client at the food pantry when she was loading a heavy bag which shifted causing injury to her left shoulder and neck. After Employee was evaluated at Urgent Care and receiving an MRI, Dr. Paul Maynard performed an arthroscopic biceps tenodesis, debridement of rotator cuff tears, and arthroscopic subacromial decompression with acromioplasty on April 28, 2015. After Employee continued to have

**Injury No. 15-004011**

Problems and complaints, Dr. Maynard performed a manipulation under anesthesia and an arthroscopic debridement of scar tissue in the subacromial space with subtotal bursectomy and debridement of previous sutures in the biceps tendon on September 15, 2015. On January 25, 2016, Employee saw Dr. Mitchell Rotman for an Independent Medical Examination. On March 2, 2016, Dr. Rotman performed a left shoulder arthroscopic release, adhesiolysis, and manipulation. Dr. Rotman placed Employee at maximum medical improvement for the shoulder on June 9, 2016. After she was released from treatment on her shoulder, her pain management doctor completed an MRI on her neck, and she was referred to Dr. David Robson for treatment. On February 3, 2017, Dr. Robson along with Dr. Todd Stewart performed an anterior arthrodesis C4-C5, C5-C6, C6-C7, an anterior instrumentation with Zavation plate C4-C7, a partial vertebrectomy at C5, and a partial vertebrectomy at C6. On April 25, 2017, Dr. Robson noted that Employee was doing well with her shoulder and neck.

Regarding her pre-existing disabilities, Employee had problems with pancreatitis, low back pain, right foot pain, and neck pain. Employee's pancreatitis problems started in 2003 when she was diagnosed with pancreatic duct obstruction and pancreatitis. As part of her treatment for chronic pancreatitis, Employee had extensive pain management, stents and/or balloon procedures, and narcotic medication. In 2007, Employee began treating her low back pain with heat and over-the-counter medications. Employee was eventually diagnosed with low back pain, sciatica, numbness in her feet, central stenosis at L3-4 and L4-5, indentation of the cord at T11-12, and degenerative changes particularly L4-S1. On November 2, 2007, Employee had surgery on her right 5th metatarsal for reduction of calluses. In 2009, Employee received treatment on her right leg for a laceration, but had no lasting effects. Finally, Employee experienced issues with pain and decreased range of motion in her neck prior to January 23, 2015.

On September 18, 2018, Dr. David Volarich issued his independent medical evaluation and opined that the January 23, 2015 work-related injury was the prevailing factor in causing the left shoulder internal derangement that required 3 separate arthroscopic surgical repairs and the cervical left arm radiculopathy that required anterior cervical discectomy with fusion and instrumentation from C4-C7. Dr. Volarich noted that Employee suffered a 45% permanent partial disability of the body as a whole at the 400 week level related to the cervical spine and a 60% permanent partial disability of the left upper extremity at the 232 week level related to the left shoulder. Further, Dr. Volarich opined that Employee had a pre-existing 10% permanent partial disability of the body as a whole at the 400 week level related to chronic cervical pain syndrome, a pre-existing 25% permanent partial disability of the body as a whole at the 400 week level related to chronic pancreatitis, a pre-existing 30% permanent partial disability of the body as a whole at the 400 week level related to the lumbar spine, and a 15% permanent partial disability of the right lower extremity at the 150 week level related to the right foot. Finally, Dr. Volarich opined that Employee was permanently and totally disabled as a direct result of the January 23, 2015 work-related injury in combination with her pre-existing medical conditions. On September 5, 2019, Dr. Volarich further clarified his opinion in an addendum to his report by noting that the treatment from Dr. Robson and Dr. Fan on Employee's cervical spine flowed from the January 23, 2015 work-related injury. Dr. Volarich issued a second addendum to his report on August 14, 2020 noting that "it remains my opinion that Ms. Illiges is

**Injury No. 15-004011**

Permanently and totally disabled as a direct result of her work related injury of January 23, 2015, to her cervical spine and left shoulder in combination with her lumbar syndrome. In his third addendum to his report dated September 17, 2020, Dr. Volarich further clarified that "pain and other movements in the neck and shoulder are made worse by movement and pain from other body parts. This would not occur except for the pre-existing conditions and disabilities to the abdomen and lumbar spine." At the time of his deposition on November 6, 2020, Dr. Volarich testified that Employee was permanently and totally disabled as a result of her January 23, 2015 work-related injury in combination with her pre-existing disabilities. As a further clarification, he testified that Employee was also permanently and totally disabled as a result of her January 23, 2015 work-related injury in combination with just her pre-existing lumbar spine and pancreatitis. Finally, Dr. Volarich opined that the pre-existing disability relating to her pancreatitis and lumbar spine directly and significantly aggravated or accelerated the subsequent January 23, 2015 work-related injury.

On February 28, 2019, Ms. Delores Gonzalez issued her vocational rehabilitation report following her examination of Employee's case. Ms. Gonzalez noted that "it is not reasonable to expect an employer to hire an individual with Mrs. Illiges' physical disabilities/conditions over younger workers who would not have to be accommodated". As a result, Ms. Gonzalez opined that Employee was not a candidate for vocational rehabilitation and was not "currently capable of any competitive work as a result of the accident of 1-23-15 in combination with her pre-existing disabilities".

At the time of the hearing, Employee continued to have neck and shoulder problems that included but were not limited to knots and pain, tenderness, radiating pain, numbness, burning, locking, decreased range of motion, and decreased strength. After observing Employee's testimony and reviewing the evidence, I find Employee credible. Further, I find the opinions of Dr. Volarich and Ms. Gonzalez to be fully supported by the evidence and persuasive. In accordance with those opinions, the evidence indicates that Employee is permanently and totally disabled as a result of the combination of the January 23, 2015 work-related injury and her pre-existing disabilities related to her lumbar spine and pancreatitis. In accordance with 287.220, I find that Employee's claim for permanent total disability against the Second Injury Fund involves an injury that occurred on January 23, 2015 which is after January 1, 2014. Based on the evidence, I find that Employee had two medically documented pre-existing disabilities equaling a minimum of fifty weeks of permanent partial disability compensation which were a 25% permanent partial disability of the body as a whole at the 400 week level related to chronic pancreatitis which is equal to 100 weeks of permanent partial disability and a 30% permanent partial disability of the body as a whole at the 400 week level related to the lumbar spine which is equal to 120 weeks of permanent partial disability. Further, I specifically find that Employee's pre-existing disability to her cervical spine and right lower extremity do not meet a minimum of fifty weeks for Second Injury Fund benefits and are not considered in evaluation of Employee's permanent total disability. In accordance with the evidence and Dr. Volarich's testimony, I also find that the pre-existing disabilities related to her lumbar spine and pancreatitis directly and significantly aggravated or accelerated the January 23, 2015 work-related injury and were not compensable injuries. Next, I find that Employee suffered a 30% permanent partial disability of the body as a whole referable to the neck and a 40% permanent partial disability of the left upper

**Injury No. 15-004011**

Extremity at the 232 week level referable to the left shoulder as a result of the January 23, 2015 work-related injury. Consequently, I find that Employee is permanently and totally disabled as a result of a combination of Employee's subsequent compensable January 23, 2015 work-related injury and the pre-existing disability related to her lumbar spine and pancreatitis. In accordance with the stipulations and evidence, I find that Employee reached maximum medical improvement on June 27, 2017.

The Second Injury Fund is therefore directed to pay to Employee the sum of $186.67 per week commencing on June 28, 2017, and said weekly benefits shall be payable during the continuance of such permanent total disability for the lifetime of Employee pursuant to Section 287.200.1, unless such payments are suspended during a time in which Employee is restored to her regular work or its equivalent as provided in Section 287.200.2. Since part of the Second Injury Fund's liability has accrued prior to the date of the award, the Second Injury Fund shall make a lump-sum payment for the appropriate amount that is past due.

Kenneth A. Seufert, attorney at law, is allowed a fee of costs plus 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on **7-1-21** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **my**


**May**

Made by:

**Carl Strange**

Chief Administrative Law Judge

Division of Workers' Compensation