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 s