Linda Miller v. Henniges Automotive Sealing Systems North America Inc.

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Commission Rule 8 CSR 20-3.030(5) states, in relevant part:

(A) All briefs shall be subject to the following requirements:

1. Be double-spaced, except the cover, if any, certificate of service and signature block may be single-spaced.

(B) The brief of the petitioner shall not exceed thirty (30) pages.

(C) The petitioner's brief shall contain a fair and concise statement of facts without argument, with citations to the pertinent pages of the transcript supporting each factual assertion.

We will use our discretion and deny employer's and Second Injury Fund's motions to dismiss or strike employee's brief. We have reviewed employee's brief as well as all of the other documents pertaining to injury numbers 15-061022 and 16-024233.

In regard to the administrative law judge's award in injury number 15-061022, we find that the expert testimony of Dr. Raymond Cohen and vocational expert Ms. Kristine Skahan were not credible or persuasive. We find that the testimony of the following experts were credible and persuasive: Dr. David Brown, Dr. Michael Nogalski, and vocational expert Mr. Benjamin Hughes. We also find the opinions of Dr. Benjamin W. Verdine, employee's treating physician, to be especially credible and persuasive in regard to employee's carpal tunnel syndrome in injury number 16-024233.

We affirm and adopt the awards and decisions of the administrative law judge as supplemented herein. The awards and decisions of Administrative Law Judge Edwin J. Kohner are attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 9th day of February 2022.


**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

**ABCT**

**ABCT**

**Secretary**

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 17, 2015
5. State location where accident occurred or occupational disease was contracted: Franklin 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 occurred or occupational disease contracted: The employee, a re-packer, suffered a myofascial pain while operating a pallet jack.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Alleged right shoulder, elbow, hand, neck and body as a whole
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 7,679.77

Issued by DIVISION OF WORKERS' COMPENSATION Linda M. Miller Injury No.: 15-061022 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 646.15 19. Weekly compensation rate: $\ 430.77 20. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Cory D. Jackson, Esq.

Issued by DIVISION OF WORKERS' COMPENSATION Linda M. Miller

This Workers' Compensation case raises several issues arising out of an alleged work-related injury in which the claimant, a re-packer, suffered a myofascial pain while operating a pallet jack. The issues for determination are: (1) Medical causation, (2) Temporary disability, (3) Permanent disability, and (4) Second Injury Fund liability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a medical report from Raymond F. Cohen, D.O., depositions of Kristine Skahan and the claimant, the claimant's personnel file, photograph of the claimant's neck and hands, and voluminous medical records. The defense offered depositions of the Michael P. Nogalski, M.D., Benjamin W. Verdine, M.D., Raymond F. Cohen, D.O., and Benjamin D. Hughes, medical records and reports from David M. Brown, M.D., Bobby Enkvetchakul, M.D., and Mark W. Drymalski, M.D.

All objections not previously sustained are overruled. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On August 17, 2015, this then 55-year-old claimant, a re-packer who cut, trimmed, and re-packaged parts into boxes, was using a hand jack to move a skid. When she pulled on the hand jack, she felt an electrical shock up her right side, pinky finger, elbow and neck. She thought she tore something. After the August 2015 accident, she could not sleep through the night, had dizziness, headaches, and could not lay on her right side or back. She had difficulty grabbing, holding, and lifting.

On the date of injury, the claimant went to Dr. Enkvetchakul for evaluation of her right shoulder and arm. Dr. Enkvetchakul took a medical history of moving a pallet of produce using a pallet jack. When pulling on the pallet-jack, the claimant felt right shoulder pain that radiated down to the small finger of her right hand. She did not fall and nothing struck her shoulder. She had her arm down at her side at waist level or at the level of the handles. The claimant reported that it is not typically very hard to move this pallet or pallet jack, but it got stuck momentarily. The claimant complained of pain from the base of her skull, more on the right side, down the right side of her neck to the shoulder and all the way down the arm into the hand. She also

Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

reported a tingling sensation down in the hand mostly to the small finger side. Her pain was most prominent around the right shoulder. She reported she did not fully recover after her most recent rotator cuff surgery and never regained full range of motion. She also reported that she was evaluated for cervical complaints after falling at home and was told she has a neck issue and nerve pain. She had been taking gabapentin for that condition. She reported that she had some pain and discomfort prior to this recent incident, but the pain had worsened. Dr. Enkvetchakul diagnosed right shoulder and arm pain and imposed restrictions from lifting with the right upper extremity. See Exhibit D.

From August 24, 2015, to September 9, 2019, the claimant continued to consult Dr. Enkvetchakul for right shoulder and right upper extremity pain. Dr. Enkvetchakul restricted the claimant from lifting with her right upper extremity. See Exhibit D.

On September 15, 2015, the claimant went to Dr. Smith for right shoulder pain. The claimant reported pain mostly at base of neck radiating towards the trapezius that worsened with use and when she raises her arm away from her body. Dr. Smith's examination revealed some superficial swelling and pain along the T1 prominence tenderness into the trapezius and on the right side of neck. Dr. Smith speculated that the condition may be a cervical spine injury or a disc herniation. On September 21, 2015, a cervical spine MRI revealed a mild disc bulge at C6-7 similar to the prior study with no disc herniation, significant spinal canal, or foraminal stenosis. See Exhibit 7.

On September 21, 2015, and September 28, 2015, the claimant returned to Dr. Enkvetchakul with complaints of pain from base of the neck on the right side, across the top and back of the shoulder, and then down around and sort of underneath the shoulder into the armpit region. The claimant reported some pain radiating down the arm and some tingling in to the small finger on the right hand. Dr. Enkvetchakul diagnosed right shoulder pain and opined that the condition appeared to be old and myofascial in nature. He restricted the claimant from lifting with right upper extremity. See Exhibit D.

On October 7, 2015, the claimant went to Dr. Drymalski for evaluation of neck and upper shoulder pain. On physical examination, the claimant had fairly full range of motion in cervical spine in all plans, slightly decreased range of motion in both shoulders with full abduction otherwise fairly full range of motion in both shoulders in all plains. Dr. Drymalski noted a prominent fat pad in the lower cervical/upper thoracic region. His impression was acute or chronic cervical scapular myofascial pain. He found no evidence on MRI imaging or on exam of cervical radiculopathy or cervical spinal stenosis. He opined her cervical scapular pain was well documented in the past, was pre-existing, and not related to her recent work injury on August 17, 2015. He opined that the injury may have exacerbated her symptoms to some degree, but the major confronting factor to her neck and periscapular pain was pre-existing myofascial/chronic neck pain issues. Dr. Drymalski did not place any restrictions from a cervical spine standpoint. He opined the fat pad prominence in her upper thoracic/lower cervical spine is not swelling but fat deposition. See Exhibit 7.

On November 10, 2015, the claimant returned to Dr. Enkvetchakul with no change in overall condition. Dr. Enkvetchakul diagnosed right neck, right trapezius and right scapular pain. The claimant opined that she could no longer perform her previous job duties. Dr. Enkvetchakul

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

concluded that he was not sure why she could not resume her previous job duties since it appeared that any restrictions, he had placed had already been present and applied by Dr. Smith. See Exhibit D.

On December 7, 2015, Dr. Drymalski examined the claimant for neck and arm pain, and the claimant reported that she continues to struggle with neck and right arm pain, numbness and weakness. Dr. Drymalski found no pathology demonstrated on the MRI image of neck that can account for this persistent pain and sent a note to Dr. Smith to see if he would like to see her back, as her cervical pathology has been ruled out for this work injury. "She certainly does have a component of cervical scapular myofascial pain, but this has been persistent since back in 2013, and if it were a simple strain should have improved long ago. Some myofascial pain syndromes persist, and she may have a component of this as well. These are typically not considered work-related." See Exhibit 7.

The claimant testified that she is now able to lift 20 pounds and that her right arm range motion was affected by the August 17, 2015, accident. The claimant returned to work for this employer full-time after the August 17, 2015, accident, working in the office, sorting papers, dusting, sweeping, updating information boards, pealing letters and putting them on boards, helping HR with insurance packets, sorting and stapling. The claimant last worked for this employer on January 22, 2016. Her employer had nothing for her to do and her employer let her go. She has not worked anywhere since then. She testified that it would be very hard to work anywhere and has not sought employment since then. She began receiving SSDI benefits in July 2016.

She testified that she has many issues with her hands. She had bilateral carpal tunnel surgery releases. Her left thumb still bothers her, and her right little finger cramps. She testified that she did not receive temporary total disability benefits from January 23, 2016, through March 21, 2016. She testified that she can hunt and peck to type but has never used Microsoft Word or PowerPoint. She has a computer and can email. She has a smartphone and sometimes emails from the smartphone. She looks at Facebook. She is currently taking Gabapentin for nerve pain, phenytoin for seizures, Advair, Aleve and uses cream for pain. The Gabapentin and Dilantin makes her very tired. They have reduced the amount she takes a little bit. She lies down once a day for 1-2 hours and her bedtime is at 8:30 pm. She testified that her typical day is boring. She gets up between 4:00 am and 6:00 am, has coffee, and eats something simple for breakfast. She does simple laundry. She used to cook a lot before 2013, but she barely cooks anymore. She cannot lift any hams or roasts.

Pre-existing Conditions

In 2011, the claimant sustained a compensable occupational disease injury to her right shoulder and underwent a right shoulder arthroscopy with subacromial decompression and interscalene approach to brachial plexus for postoperative pain control on July 29, 2011. The claimant estimated that she was out of work because of this injury/surgery for two to four weeks. She continued to have issues with her shoulder, and Dr. Howard recommended that she be removed from her Nissan Job and placed in a less physically demanding job for a month after her October 25, 2011, appointment. See Exhibit 7. On November 22, 2011, Dr. Howard opined that the claimant had attained maximum medical improvement and released her from care to full

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

duty without restriction. See Exhibit 7. Following the release, the claimant transferred positions within this employer to the "Honda Department." The claimant indicated that the "Honda Department" was not as physically demanding as her previous position as she was able to control the pace of the machine she worked with in that department, indicating the previous machine she worked with ran a faster, automated pace. The claimant settled her Workers' Compensation Claim with her employer based on a 20% permanent partial disability of her right shoulder. See Exhibit 1.

On February 21, 2013, the claimant fell down a staircase at her home, landing on her right shoulder. On April 3, 2013, Dr. Smith performed a right shoulder arthroscopy with rotator cuff repair, subscapularis. See Exhibit 7. During her recovery from her second right shoulder surgery, the claimant complained of ongoing neck pain with headaches and bilateral upper extremity numbness. Dr. Hall opined that her left hand symptoms were consistent with carpal tunnel syndrome. On October 8, 2013, a cervical/thoracic spine MRI revealed C6-7 and T5-6 disc herniations. See Exhibit 7. On October 10, 2013, Dr. Jefferies performed a C7-T1 epidural steroid injection. On November 12, 2013, Dr. Jeffries opined that the claimant was not a surgical candidate for her cervical complaints and referred her for a neurological evaluation. After the 2013 shoulder surgery, Dr. Smith gave the claimant permanent work restrictions: "twenty-pound lifting restriction floor to waist and at counter level. No heavy lifting above countertop level." See Exhibit 7. Dr. Hall examined the claimant on the same date and noted, "She has had a lot of difficulty since her surgery. She has recovered a lot of her motion and function but continues to have pain. I definitely think she has multiple problems. She has a slight cervical disk herniation, I do not know if it is enough to cause pain into her shoulders. I think it may be contributing to her headaches." See Exhibit 7. On December 3, 2013, the claimant's treating neurologist prescribed Gabapentin for pain, noting that the claimant had headaches and mechanical limitations in her right arm following her February fall. See Exhibit 7. The claimant testified that she has remained on Gabapentin.

The claimant testified that she applied for Social Security Disability benefits after her 2013 injury and subsequent treatment, but she withdrew her SSDI application when her employer told her that they had a position available within Dr. Smith's restrictions. The claimant testified that she would rather work than be on disability, if she was able. On November 21, 2013, the claimant returned to work in a "repack" position taking rubber parts from boxes shipped to her employer and placing them into plastic bins for easier use in the productions lines. See Exhibit 4. She testified that she worked 40 hours a week in that position, with occasional overtime. The claimant testified that, though, her right shoulder was tender, she was able to perform the "repack" job until her August 17, 2015, injury. The claimant testified that she required assistance from co-workers regularly/hourly lifting lids/skids while performing the repack job. See Exhibit 6.

In February 2013, the claimant visited the University of Missouri Health Neurology Clinic for evaluation of headache, neck pain radiating to both shoulders, arms and forearms ongoing since February 2013. On February 7, 2014, the claimant underwent an EEG revealed abnormal findings "...suggestive of focal structural brain involvement on the left side and/or partial seizure disorder." See Exhibit 7. The claimant did not undergo further medical treatment for any neck/headache/radicular complaints until the alleged August 17, 2015, occurrence.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

Raymond Cohen, D.O.

On September 12, 2016, Dr. Cohen, a neurologist, examined the claimant, took a medical history, and reviewed the claimant's medical records. With regard to the 2015 injury, Dr. Cohen diagnosed "cervical and upper thoracic myofascial pain disorder" and opined that the claimant suffered a "20% permanent partial disability of the whole person at the cervical spine, and a 5% permanent partial disability of the whole person at the thoracic spine." Dr. Cohen recommended that the claimant be restricted from any "repetitive twisting and turning of her head and neck, and no holding her head and neck in any type of awkward or sustained position." Dr. Cohen testified:

Q....What - what does a cervical and upper thoracic myofascial pain disorder diagnosis mean?

A. That means that the part of the body that is being assessed - in her case, her - her neck and upper thoracic spine, has symptoms consistent with that disorder, which means pain and aching, loss of motion, and an examination revealing tender areas that the condition is merely limited to the muscles of the particular area and also at times, the tendons and ligaments, but primarily that's a musculoskeletal condition.

Q....So, your estimation - the 8/17/15 injury, are you of the opinion that that was - a specific accident type injury? She jerked on the hand truck and - and had symptoms?

A. That was - acute injury in my opinion and happened at work, but yes.

Q. And are you of the opinion that the 8/17/15 injury where she was jerking on a hand truck was the primary factor in relation to any other factors causing the cervical and upper thoracic pain disorder?

A. That's correct. See Dr. Cohen deposition, pages 41-44.

With regard to the 2016 occurrence, Dr. Cohen diagnosed bilateral carpal tunnel syndrome (status post bilateral surgical release) as well as right hand trigger fingers involving the ring and small finger. Dr. Cohen recommended restricting the claimant from repetitive gripping, grasping, keeping the hands in any type of awkward positions, and avoiding exposure to vibration as well as a restriction of no lifting greater than 10 pounds with either hand except on an occasional basis as a result of this injury. See Exhibit 2.

With regard to pre-existing conditions, Dr. Cohen diagnosed prior shoulder surgeries and a seizure disorder. Dr. Cohen opined that the claimant suffered a 40% pre-existing permanent partial disability of the right shoulder and a 20% pre-existing permanent partial disability attributable to her seizure disorder. Dr. Cohen opined that the pre-existing conditions were a hindrance to her employment or re-employment. See Exhibit 2.

Dr. Cohen opined that the claimant's pre-existing permanent partial disabilities combined synergistically with her permanent partial disabilities from the 2015 and 2016 occurrences. He opined that the claimant "would have difficulty working in any occupation in which she had to do a significant amount of lifting with the right arm of 20 pounds over the shoulder, any

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

repetitive right shoulder work with lifting of 20 pounds over the shoulder, any repetitive right shoulder work with lifting of 20 pounds from the floor to the chest level."

He also opined that the claimant "would have difficulty in any occupation in which she worked around heights, dangerous equipment over-the-road driving, working on ladders or heights, or any similar work with regard to the seizure disorder. Dr. Cohen opined, "Due to this combination of disabilities, it is my opinion Ms. Miller is permanently and totally disabled and not capable of gainful employment in today's open labor market." He opined that the claimant "would benefit from additional treatment for the trigger fingers in her right hand. I would recommend she see a hand surgeon for a steroid injection. If this or a repeat injection does not stop the triggering, then a release of the trigger fingers in her right hand would be indicated. I would recommend she have treatment for her chronic right shoulder and neck pain. She has obtained some relief with the TENS unit. She should be on muscle relaxant as well as anti-inflammatory agent. She will need to be followed by a physician to prescribe those medications. Additionally, I would recommend she continue to be on an anti-seizure medication such as gabapentin or Lyrica for the chronic right-sided neck and right upper extremity pain." See Exhibit 2.

David Brown, M.D.

On July 3, 2017, Dr. Brown examined the claimant, took a medical history, and reviewed the claimant's medical records. He opined that the claimant's trigger finger condition in her left middle and ring fingers were not "causally related to her work activities" for this employer. See Exhibit C.

Michael Nogalski, M.D.

On December 8, 2015, Dr. Nogalski examined the claimant. At the time of his examination, the claimant complained of tenderness around the trapeziial area and pain from the neck down to the shoulder. She felt as though her arm was dropping. See Dr. Nogalski deposition, pages 7, 9, 10.

Dr. Nogalski diagnosed right-sided upper extremity and shoulder girdle neuropathic pain without any specific mechanical findings to support shoulder issues with respect to the rotator cuff, stability issue or labral issues. See Dr. Nogalski deposition, pages 25. He recommended more extensive EMG/NCS and MRI studies to evaluate the thoracic spine. See Dr. Nogalski deposition, page 26. He did not recommend any further evaluation or medical treatment specifically related to the claimant's right shoulder. See Dr. Nogalski deposition, page 27. Dr. Nogalski opined that the August 2015 work injury was not the prevailing factor regarding the claimant's current right shoulder condition. See Dr. Nogalski deposition, page 27. Dr. Nogalski testified the claimant required the same shoulder restrictions as set forth by Dr. Smith previously. He found she was at baseline level based on her exam. See Dr. Nogalski deposition, page 30.

Dr. Nogalski opined that the claimant had no objective findings of neuropathic pain related to the August 17, 2015, work injury and her cervical symptoms appeared to be were degenerative and spondylotic in nature. He did not observe any objective correlations with the studies. He did not recommend any additional medical treatment for the 2015 work injury. See

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

Dr. Nogalski deposition, page 36. He found no permanent partial disability resulting from the 2015 work injury. See Dr. Nogalski deposition, page 37.

Kristine Skahan

On November 11, 2016, Ms. Skahan, a vocational expert, interviewed the claimant and reviewed documents pertaining to the claimant's medical history and condition. Ms. Skahan testified that, prior to the 2015 and 2016 injuries, the claimant was working at "light" duty (twenty-pounds) as defined by the Dictionary of Occupational Titles based upon the restrictions assigned by the claimant's 2013 right shoulder surgeon Dr. Smith: 20 pound floor to waist and counter level with no heavy lifting above countertop level" and that such pre-existing shoulder conditions would have been a hindrance or obstacle to employment. Ms. Skahan administered the WRAT-IV test as well as a Pain Assessment Scale. Ms. Skahan testified that the restrictions as prescribed by Dr. Cohen would place the at a less than sedentary position. Ms. Skahan concluded that the claimant did not have any transferable skills, citing her work history, lack of technological skills and physical restrictions. Ms. Skahan concluded that the claimant was permanently and totally disabled/unemployable in the open labor market due to the 2015 and 2016 injuries, in combination with the claimant's pre-existing physical conditions. Ms. Skahan opined that the claimant would not qualify for funds for a retraining plan to sedentary work due to her age and total restrictions.

She testified that the claimant had a total loss to the competitive and open labor market due to a combination of the preexisting injuries to her right shoulder, combined with her work-related injury on August 17, 2015, and her "work-related occupational repetitive trauma disorder up through 1/1/16 while working as a re-packer for Henniges Automotive Sealing Systems." See Skahan deposition, page 38. She opined that the claimant's difficulties and symptoms related to her pre-existing right shoulder injury were a hindrance to her performing her regular job. See Skahan 1/8/17 report, page 15. She testified that she based her conclusion solely on Dr. Cohen's restrictions. See Skahan deposition, page 46.

Benjamin Hughes

Benjamin Hughes, a vocational expert, reviewed a number of records and concluded that the claimant could expect to work at the light level when observing the Dictionary of Occupational Titles. He testified that he found no specific set of restrictions to remove the claimant from employability. Considering all physician's restrictions, he testified that the claimant could expect to be successful in a number of sedentary/light jobs or be able to return to any previously held position from her past, depending on the specific physician recommendation. He testified that the claimant is capable of full-time work. See Hughes deposition, pages 19, 20 and report.

MEDICAL CAUSATION

"The claimant in a workers' compensation case has the burden to prove all essential elements of her claim, including a causal connection between the injury and the job." Royal v. Advantica Restaurant Group, Inc., 194 S.W.3d 371, 376 (Mo.App.W.D. 2006) (citations and quotations omitted). "Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission." Id. (citing Bloss v. Plastic Enterprises, WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

32 S.W.3d 666, 671 (Mo.App.W.D.2000)). Under the statute, "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. § 287.020.2. On the other hand, '[a]n injury is not compensable because work was a triggering or precipitating factor.' Id. Awards for injuries 'triggered' or 'precipitated' by work are nonetheless proper if the employee shows the work is the prevailing factor in the cause of the injury. Thus, in determining whether a given injury is compensable, a work-related accident can be both a triggering event and the prevailing factor."

The weight of the credible evidence does not support a conclusion that the Augusts 2015 accident was the prevailing factor causing the claimant's cervical/thoracic condition and the resulting disability. The claimant complained of trapezius and neck pain as early as August 15, 2013, while under treatment with Dr. Smith for her pre-existing right shoulder rotator cuff tear. She was point tender over the right trapezius and the right side of her cervical spine. Dr. Smith ordered physical therapy for a cervical strain/spondylosis referred the claimant to Dr. Jefferies for neck pain. See Exhibit 7.

On September 18, 2013, the claimant reported to Dr. Jefferies that the physical therapy for her neck provided no relief. She complained of neck pain with numbness into the region of her right upper extremity diffusely and relatively diffusely into her hand. Significantly, her pain diagram noted stabbing right-sided neck pain, stabbing low-neck pain with bilateral posterior shoulder pain and upper thoracic pain. Dr. Jefferies diagnosed neck pain and possible upper extremity radiculopathy. On September 24, 2013, Dr. Smith also noted that the claimant had trouble with her neck. She described significant neck pain, trapezius pain on both sides and headaches. See Exhibit 7.

On October 8, 2013, a cervical spine MRI revealed a C6-7-disc herniation and T5-6 disc herniation. Dr. Jefferies opined that the MRI showed a small, left sided disc protrusion at C6-7 and a small degenerative spondylolisthesis at C7 to T1. However, claimant's primary arm complaints were on the right side. The claimant reported a sensation as if her neck was not strong enough to hold her head up. On October 8, 2013, Dr. Smith again noted significant trapezius, neck and headache pain. Neurontin/Gabapentin or Lyrica was recommended to relieve her symptoms. On October 10, 2013, Dr. Jefferies performed a C7-T1 epidural steroid/anesthetic injection for the claimant's neck, arm pain, and C6-7 disc protrusion. See Exhibit 7.

On November 12, 2013, Dr. Jefferies noted both the injection and physical therapy did not provide the claimant with relief. The claimant continued to complain of right lateral neck and right shoulder pain radiating down her right extremity. Due to the claimant's headaches, it was recommended she be evaluated by neurology. On November 13, 2013, Dr. Smith noted the claimant's pain was most significant in her neck and headaches. The claimant reported her pain was worse than what it was before the epidural steroid injection. See Exhibit 7.

On January 14, 2014, the claimant went to Dr. Gupta for headaches and neck pain radiating to both shoulders, arms and forearms ongoing since February 2013 when she fell from stairs. The claimant's medications included 400 Mg of Neurontin a day and Dilantin. Dr. Gupta recommended conservative treatment for pain relief including non-opioid and opioid pain

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 15-061022

medication, Neurontin, chiropractic treatment, acupuncture, physical therapy and continued Neurontin with over the nonsteroidal anti-inflammatory medications. See Exhibit 7. On May 6, 2015, the claimant went to Dr. Hass for epilepsy and cervical radicular pain. She reported she was still in a lot of pain and requested a Gabapentin refill. See Exhibit 7.

The claimant testified she was taking Gabapentin prior to the August 17, 2015, work accident for her nerve pain. There is no evidence that her dosage increased after the August 17, 2015, work accident. The claimant testified her dosage had been reduced a bit. She testified that she continued to work full time following the August 17, 2015, accident.

Dr. Enkvetchakul found it difficult to determine whether the claimant's condition and complaints regarding her right shoulder and neck was new versus old. See Exhibit 7. The claimant's limited range of motion and stiffness in her right shoulder did not appear to be new findings. See Exhibit 7. Dr. Smith and Dr. Drymalski do not support a medical causal relationship between the claimant's condition and the work injury. Dr. Smith did not make any new diagnosis or place any new restrictions claimant's right shoulder following the August 17, 2015, work accident. See Exhibit 7. Dr. Drymalski opined the claimant's cervical scapular pain was pre-existing and not related to the August 2015 work accident. He acknowledged the work injury may have exacerbated her symptoms but "the major confronting factor to her neck and periscapular pain is the pre-existing myofascial/chronic neck pain issues." See Exhibit 7. Dr. Drymalski noted myofascial pain syndromes typically are not work related. See Exhibit 7. Dr. Drymalski did not place any restrictions regarding the cervical spine. See Exhibit 7. On October 7, 2015, Dr. Drymalski noted that the claimant had a prominent fat pad in her upper thoracic/lower cervical spine at T-1 that is not swelling but a fat deposit. See Exhibit 7.

On December 8, 2015, Dr. Nogalski examined the claimant. At the time of his exam, the claimant complained of tenderness around the trapezial area and pain from the neck down to the shoulder. She felt as though her arm was dropping. See Dr. Nogalski deposition, pages 7, 9, 10. Dr. Nogalski diagnosed right sided upper extremity and shoulder girdle neuropathic pain without any specific mechanical findings to support a shoulder issues with respect to the rotator cuff, stability issue or labral issues. See Dr. Nogalski deposition, pages 25. He recommended more extensive EMG/NCS and MRI studies to evaluate the thoracic spine. See Dr. Nogalski deposition, page 26. He did not recommend any further evaluation or medical treatment specifically related to the claimant's right shoulder. See Dr. Nogalski deposition, page 27. Dr. Nogalski opined that the August 2015 work injury was not the prevailing factor regarding the claimant's current right shoulder condition. See Dr. Nogalski deposition, page 27. Dr. Nogalski testified the claimant required the same shoulder restrictions as set forth by Dr. Smith previously. He found she was at baseline level based on her exam. See Dr. Nogalski deposition, page 30.

Dr. Nogalski opined that the claimant had no objective findings of neuropathic pain related to the August 17, 2015, work injury and her cervical symptoms appeared to be were degenerative and spondylotic in nature. He did not observe any objective correlations with the studies. He did not recommend any additional medical treatment for the 2015 work injury. See Dr. Nogalski deposition, page 36. He found no permanent partial disability resulting from the 2015 work injury. See Dr. Nogalski deposition, page 37.

WC-32-R1 (6-81)

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Linda M. Miller

Injury No.: 15-061022

On the other hand, Dr. Cohen, Dr. Cohen, a neurologist, examined the claimant, took a medical history, and reviewed the claimant's medical records. With regard to the 2015 injury, Dr. Cohen diagnosed "cervical and upper thoracic myofascial pain disorder" and opined that the claimant suffered a "20% permanent partial disability of the whole person at the cervical spine, and a 5% permanent partial disability of the whole person at the thoracic spine." Dr. Cohen recommended that the claimant be restricted from any "repetitive twisting and turning of her head and neck, and no holding her head and neck in any type of awkward or sustained position."

Notwithstanding the findings of Dr. Cohen, the weight of the credible evidence supports a finding that the claimant's disability from her cervical and thoracic spine condition predated the August 2015 accident and that the claimant suffered no disability from the August 2015 accident. Therefore, the 2015 Claim is denied.

I certify that on **1-7-20**, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **__________________________**.

Made by: **__________________________**

**EDWIN J. KOHNER**

Administrative Law Judge

Division of Workers' Compensation


Employee: Linda M. Miller

Injury No.: 16-024233

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Before the

Injury No.: 16-024233

Employer: Henniges Automotive Sealing Systems North America, Compensation

Inc.

Department of Labor and Industrial

Additional Party: Second Injury Fund

Relations of Missouri

Jefferson City, Missouri

Insurer: Travelers Indemnity Company of America

Hearing Date: October 9, 2019

Checked by: EJK/kmr

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 1, 2016
5. State location where accident occurred or occupational disease was contracted: Franklin 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 occurred or occupational disease contracted: The employee, a re-packer, developed carpal tunnel syndrome.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Both wrists and right ring finger
14. Nature and extent of any permanent disability: 20 % permanent partial disability of the right hand and a 171 / 2 % permanent partial disability of the left hand with additional 171 / 2 % for multiplicity.
15. Compensation paid to-date for temporary disability: $\ 7,958.14 (March 21, 2016 through August 4, 2016)
16. Value necessary medical aid paid to date by employer/insurer: $\ 9,180.56

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: 600.15
3. Weekly compensation rate: 400.10
4. Method wages computation: By agreement

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

1. Second Injury Fund liability: No

TOTAL: $33,981.91

1. Future requirements awarded: None

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Cory D. Jackson, Esq.

This Workers' Compensation case raises several issues arising out of an alleged workrelated injury in which the claimant, a re-packer, suffered a myofascial pain while operating a pallet jack. The issues for determination are: (1) Medical causation, (2) Temporary disability, (3) Permanent disability, and (4) Second Injury Fund liability. The evidence compels an award for the claimant for temporary and permanent disability.

At the hearing, the claimant testified in person and offered a medical report from Raymond F. Cohen, D.O., depositions of Kristine Skahan and the claimant, the claimant's personnel file, photograph of the claimant's neck and hands, and voluminous medical records. The defense offered depositions of the Michael P. Nogalski, M.D., Benjamin W. Verdine, M.D., Raymond F. Cohen, D.O., and Benjamin D. Hughes, medical records and reports from David M. Brown, M.D., Bobby Enkvetchakul, M.D., and Mark W. Drymalski, M.D.

All objections not previously sustained are overruled. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

The claimant testified that she held many positions with this employer involving repetitive use of her upper-extremities full-time. Training records contained in the personnel file reveal: "clipping wires, end cap assembly, clip assembly, packing/labeling, trimming, bracket assembly and Injection Molding." See Exhibit 4. The claimant testified that some of her earlier jobs also required lifting up to sixty-pounds several times an hour. See claimant deposition, page, 24 .

On June 18, 2014, Dr. Verdine examined the claimant for visible and palpable triggering of her right ring finger as well as a right volar wrist mass 1 centimeter in side over the radial carpal interval. See Exhibit B. He diagnosed bilateral carpal tunnel syndrome and explored treatment options for ring finger trigger digit, carpal tunnel syndrome, and volar wrist ganglion. Dr. Verdine reported that the claimant,

"...presented with a 5 year history of bilateral hand pain, numbness. Reports it has worsened recently. She did suffer a fall last year, with difficulties with

Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

shoulder and neck pain afterwards. She did undergo R rotator cuff surgery last April. She additionally reports knots and a month locking of the R ring finger. Positive for night waking. Has tried splinting with minimal relief. She has been previously evaluated with MRI of her neck as well as epidural steroid injections. She does have a left-sided disc issue, which did not significantly improve with injection. Has been taking Gabapentin for 6 months with relief. Past Medical History Diagnoses: Seizure disorder, Fatigue, Arthritis, Joint pain, SOB (Shortness of breath), Irregular heartbeat, Numbness and tingling, Environmental Allergies." See Exhibit B, Attachment B.

The claimant did not opt to pursue operative intervention for these conditions in 2014. Specifically, the claimant declined surgical procedures to remedy her carpal tunnel syndrome and trigger finger in her right ring finger. The claimant continued to work full time with accommodations for other health conditions in 2014 and 2015. The claimant described the work as "menial." See claimant deposition, pages 37, 38. When asked to elaborate, the claimant cited dusting, cutting little pieces of labels, collating and stapling 1500 copies of a five-page document. The claimant testified that during this time, longstanding bilateral upper extremity complaints began to flare up. She testified that she informed Mike Hall (safetyman) of increasing symptoms in her hands, including them cramping, falling asleep and hardening. See Exhibit 6, pages 38-43. The "Report of Injury" contained within the Division certified records notes, "Associate informed me on 1/21/16 that she is having carpal tunnel related symptoms, no specific time or date associated with injury." The Report of Injury also notes an occupation job title of "DL Tech 3" and states the claimant's employment status to be "DS Disabled." See Exhibit 1. The claimant testified that she learned on January 22, 2016, that this employer no longer had a job available for her and could not accommodate her restrictions. The claimant has not been employed since that date.

On January 27, 2016, the claimant went to Dr. Enkvetchakul who took a medical history that she had numbness and tingling in both of her hands for several years, and that the symptoms had been waking her up and disrupting her sleep for over a year. Dr. Enkvetchakul diagnosed "1. Right carpal tunnel syndrome. 2. Left hand numbness and tingling likely carpal tunnel syndrome as well. 3. Left thumb CMC arthritis 4. Right hand Dupuytren's contracture, very early." Dr. Enkvetchakul did not believe the CMC arthritis or Dupuytren's to be work related. Dr. Enkvetchakul understood that the claimant was no longer working on that date. Dr. Enkvetchakul commented that he would not place any further restrictions on the claimant with regard to her bilateral hand activities. On February 17, 2016, Dr. Enkvetchakul opined, "Based on the information available, it is my opinion that Ms. Miller's carpal tunnel syndrome (median neuropathy at the wrist) is related to her 27 years of work at Henniges Automotive." See Exhibit 7. On February 11, 2016, bilateral consultative electrical diagnostic studies revealed:

"In the left hand the ring finger is the most severely involved. She reports left thumb pain." Upon physical examination, palpable radial pulses were noted and Dr. Daniel Phillips felt she had bilateral positive Tinel's and Phalen's signs at the carpal tunnels and noted tenderness over the left CMC joint. He noted weakness in her right thenar group. EMG demonstrates chronic right thenar group denervation. Impressions included, "...rather severe chronic sensory motor median neuropathy across the left carpal tunnel. There is mild, predominantly

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demyelinate ulnar neuropathy across the left elbow... There is severe chronic sensorimotor median neuropathy across the right carpal tunnel. There is mild demyelinate ulnar neuropathy across the elbow... The study is not impressive for active cervical radiculopathy or brachial plexopathy. The right spinal accessory responses (sic) normal." See Exhibit 7.

On February 19, 2016, a cervical spine MRI revealed, "1. Degenerative discs are seen at all levels with diffuse disc bulge/protrusion at C6-C7, asymmetric to the left and 2. The cord is of normal size and signal. Marrow signal normal." See Exhibit 7.

On March 21, 2016, Dr. Verdine noted:

She presents with multiple complaints. The first is of right greater than left radial sided hand numbness and tingling. She reports this has been present for many years, and in fact has been previously evaluated by my office for this, though not as a workers compensation claim. She reports nighttime waking, not improved with splinting... She saw occupational medicine on January 27, 2016. In that examination, she was diagnosed with right carpal tunnel syndrome, left hand paresthesia, left thumb CMCC arthritis, and early Dupuytren's contracture of the right hand. She was started on conservative treatments with bilateral wrist splints to be worn at night. She was also referred for repeat nerve conduction studies. It was felt that her thumb and her Dupuytren's were not work related. In addition, she has a secondary workers' compensation claim related to her right upper extremity with an injury that occurred in September of last year, according to the patient. I have no documentation details regarding this, but she reports this involves neck pain and paresthesia which shoots down her arm, as well, distinct and different than her carpal tunnel type symptoms.... Assessment; 1. Carpal tunnel syndrome, right. 2. Carpal tunnel syndrome, left. 3. Intermittent paresthesia of right hand and foot. 4. Dupuytren's contracture of right hand... She does appear to have bilateral carpal tunnel syndrome. These do appear to be work related in nature... I have recommended sequential bilateral carpal tunnel release... Also importantly, she understands that her more proximal symptoms will not be alleviated by carpal tunnel, and that this is a completely separate issue for which I would recommend further neck and shoulder evaluation, neither of which I provide, and unrelated to this claim. See Exhibit 7.

On April 21, 2016, Dr. Verdine performed a right carpal tunnel release and a left carpal tunnel release on June 7, 2016. See Exhibit 7. On August 31, 2016, Dr. Verdine noted that he believed claimant to be at maximum medical improvement and released her from care with no restrictions. See Exhibit 7. On November 28, 2016, Dr. Verdine opined that the claimant suffered a "1% person for right, 1% person for left = 2%" in response to a question requesting a permanent partial impairment rating. See Dr. Verdine deposition, Attachment. He testified that the claimant suffered a permanent partial impairment of "two percent at the level of the right hand, one percent the level of the left hand." See Dr. Verdine deposition, page 18.

The claimant testified that she began receiving SSDI benefits sometime during her

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treatment with Dr. Verdine, in July 2016. The defense terminated temporary total disability benefits on August 4, 2016. See Exhibit F.

The claimant testified that she is now able to lift 20 pounds and that her right arm range of motion was affected by the August 17, 2015, accident. The claimant returned to work for this employer full-time after the August 17, 2015, accident, working in the office, sorting papers, dusting, sweeping, updating information boards, pealing letters and putting them on boards, helping HR with insurance packets, sorting and stapling. The claimant last worked for this employer on January 22, 2016. Her employer had nothing for her to do and her employer let her go. She has not worked anywhere since then. She testified that it would be very hard to work anywhere and she has not sought employment since then. She began receiving SSDI benefits in July 2016.

She testified that she has many issues with her hands. She had bilateral carpal tunnel surgery releases. Her left thumb still bothers her, and her right little finger cramps. She testified that she did not receive temporary total disability benefits from January 23, 2016, through March 21, 2016. She testified that she can hunt and peck to type but has never used Microsoft Word or PowerPoint. She has a computer and can email. She has a smartphone and sometimes emails from the smart phone. She looks at Facebook. She is currently taking Gabapentin for nerve pain, phenytoin for seizures, Advair, Aleve and uses cream for pain. The Gabapentin and Dilantin makes her very tired. They have reduced the amount she takes a little bit. She lies down once a day for 1-2 hours and her bedtime is at 8:30 pm. She testified that her typical day is boring. She gets up between 4:00 am and 6:00 am, has coffee, and eats something simple for breakfast. She does simple laundry. She used to cook a lot before 2013 but she barely cooks anymore. She cannot lift any hams or roasts.

Pre-existing Conditions

In 2011, the claimant sustained a compensable occupational disease injury to her right shoulder and underwent a right shoulder arthroscopy with subacromial decompression and interscalene approach to brachial plexus for postoperative pain control on July 29, 2011. The claimant estimated that she was out of work because of this injury/surgery for two to four weeks. She continued to have issues with her shoulder, and Dr. Howard recommended that she be removed from her Nissan Job and placed in a less physically demanding job for a month after her October 25, 2011, appointment. See Exhibit 7. On November 22, 2011, Dr. Howard opined that the claimant had attained maximum medical improvement and released her from care to full duty without restriction. See Exhibit 7. Following the release, the claimant transferred positions within this employer to the "Honda Department." The claimant indicated that the "Honda Department" was not as physically demanding as her previous position as she was able to control the pace of the machine she worked with in that department, indicating the previous machine she worked with ran a faster, automated pace. The claimant settled her workers' compensation claim with her employer based on a 20% permanent partial disability of her right shoulder. See Exhibit 1.

On February 21, 2013, the claimant fell down a staircase at her home, landing on her right shoulder. On April 3, 2013, Dr. Smith performed a right shoulder arthroscopy with rotator cuff repair, subscapularis. See Exhibit 7. During her recovery from her second right shoulder

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surgery, the claimant complained of ongoing neck pain with headaches and bilateral upper extremity numbness. Dr. Hall opined that her left hand symptoms were consistent with carpal tunnel syndrome. On October 8, 2013, a cervical/thoracic spine MRI revealed C6-7 and T5-6 disc herniations. See Exhibit 7. On October 10, 2013, Dr. Jefferies performed a C7-T1 epidural steroid injection. On November 12, 2013, Dr. Jeffries opined that the claimant was not a surgical candidate for her cervical complaints and referred her for a neurological evaluation. After the 2013 shoulder surgery, Dr. Smith gave the claimant permanent work restrictions: "twenty-pound lifting restriction floor to waist and at counter level. No heavy lifting above countertop level." See Exhibit 7. Dr. Hall examined the claimant on the same date and noted, "She has had a lot of difficulty since her surgery. She has recovered a lot of her motion and function but continues to have pain. I definitely think she has multiple problems. She has a slight cervical disk herniation, I do not know if it is enough to cause pain into her shoulders. I think it may be contributing to her headaches." See Exhibit 7. On December 3, 2013, the claimant's treating neurologist prescribed Gabapentin for pain, noting that the claimant had headaches and mechanical limitations in her right arm following her February fall. See Exhibit 7. The claimant testified that she has remained on Gabapentin.

The claimant testified that she applied for Social Security Disability benefits after her 2013 injury and subsequent treatment, but she withdrew her SSDI application when her employer told her that they had a position available within Dr. Smith's restrictions. The claimant testified that she would rather work than be on disability, if she was able. On November 21, 2013, the claimant returned to work in a "repack" position taking rubber parts from boxes shipped to her employer and placing them into plastic bins for easier use in the productions lines. See Exhibit 4. She testified that she worked forty-hours a week in that position, with occasional overtime. The claimant testified that, though, her right shoulder was tender, she was able to perform the "repack" job until her August 17, 2015, injury. The claimant testified that she required assistance from co-workers regularly/hourly lifting lids/skids while performing the repack job. See Exhibit 6.

In February 2013, the claimant visited the University of Missouri Health Neurology Clinic for evaluation of headache, neck pain radiating to both shoulders, arms and forearms ongoing since February 2013. On February 7, 2014, the claimant underwent an EEG revealed abnormal findings "....suggestive of focal structural brain involvement on the left side and/or partial seizure disorder." See Exhibit 7. The claimant did not undergo further medical treatment for any neck/headache/radicular complaints until the alleged August 17, 2015, occurrence.

Raymond Cohen, D.O.

On September 12, 2016, Dr. Cohen, a neurologist, examined the claimant, took a medical history, and reviewed the claimant's medical records. With regard to the 2015 injury, Dr. Cohen diagnosed "cervical and upper thoracic myofascial pain disorder" and opined that the claimant suffered a "20% permanent partial disability of the whole person at the cervical spine, and a 5% permanent partial disability of the whole person at the thoracic spine." Dr. Cohen recommended that the claimant be restricted from any "repetitive twisting and turning of her head and neck, and no holding her head and neck in any type of awkward or sustained position." Dr. Cohen testified:

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Q....What - what does a cervical and upper thoracic myofascial pain disorder diagnosis mean?

A. That means that the part of the body that is being assessed - in her case, her her neck and upper thoracic spine, has symptoms consistent with that disorder, which means pain and aching, loss of motion, and an examination revealing tender areas that the condition is merely limited to the muscles of the particular area and also at times, the tendons and ligaments, but primarily that's a musculoskeletal condition.

Q...So, your estimation - the $8 / 17 / 15$ injury, are you of the opinion that that was a specific accident type injury? She jerked on the hand truck and - and had symptoms?

A. That was - acute injury in my opinion and happened at work, but yes.

Q. And are you of the opinion that the $8 / 17 / 15$ injury where she was jerking on a hand truck was the primary factor in relation to any other factors causing the cervical and upper thoracic pain disorder?

A. That's correct. See Dr. Cohen deposition, pages 41-44.

With regard to the 2016 occurrence, Dr. Cohen diagnosed bilateral carpal tunnel syndrome (status post bilateral surgical release) as well as right hand trigger fingers involving the ring and small finger. Dr. Cohen recommended restricting the claimant from repetitive gripping, grasping, keeping the hands in any type of awkward positions, and avoiding exposure to vibration as well as a restriction of no lifting greater than 10 pounds with either hand except on an occasional basis as a result of this injury. See Exhibit 2.

With regard to pre-existing conditions, Dr. Cohen diagnosed prior shoulder surgeries and a seizure disorder. Dr. Cohen opined that the claimant suffered a 40 % pre-existing permanent partial disability of the right shoulder and a 20 % pre-existing permanent partial disability attributable to her seizure disorder. Dr. Cohen opined that the pre-existing conditions were a hindrance to her employment or re-employment. See Exhibit 2.

Dr. Cohen opined that the claimant's pre-existing permanent partial disabilities combined synergistically with her permanent partial disabilities from the 2015 and 2016 occurrences. He opined that the claimant "would have difficulty working in any occupation in which she had to do a significant amount of lifting with the right arm of 20 pounds over the shoulder, any repetitive right shoulder work with lifting of 20 pounds over the shoulder, any repetitive right shoulder work with lifting of 20 pounds from the floor to the chest level."

He also opined that the claimant "would have difficulty in any occupation in which she worked around heights, dangerous equipment over-the-road driving, working on ladders or heights, or any similar work with regard to the seizure disorder. Dr. Cohen opined, "Due to this combination of disabilities, it is my opinion Ms. Miller is permanently and totally disabled and not capable of gainful employment in today's open labor market." He opined that the claimant "would benefit from additional treatment for the trigger fingers in her right hand. I would recommend she see a hand surgeon for a steroid injection. If this or a repeat injection does not stop the triggering, then a release of the trigger fingers in her right hand would be indicated. I

Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

would recommend she have treatment for her chronic right shoulder and neck pain. She has obtained some relief with the TENS unit. She should be on muscle relaxant as well as anti-inflammatory agent. She will need to be followed by a physician to prescribe those medications. Additionally, I would recommend she continue to be on an anti-seizure medication such as Gabapentin or Lyrica for the chronic right-sided neck and right upper extremity pain." See Exhibit 2.

David Brown, M.D.

On July 3, 2017, Dr. Brown examined the claimant, took a medical history, and reviewed the claimant's medical records. He opined that the claimant's trigger finger condition in her left middle and ring fingers were not "causally related to her work activities" for this employer. See Exhibit C.

Michael Nogalski, M.D.

On December 8, 2015, Dr. Nogalski examined the claimant. At the time of his examination, the claimant complained of tenderness around the trapeziial area and pain from the neck down to the shoulder. She felt as though her arm was dropping. See Dr. Nogalski deposition, pages 7, 9, 10.

Dr. Nogalski diagnosed right-sided upper extremity and shoulder girdle neuropathic pain without any specific mechanical findings to support shoulder issues with respect to the rotator cuff, stability issue or labral issues. See Dr. Nogalski deposition, pages 25. He recommended more extensive EMG/NCS and MRI studies to evaluate the thoracic spine. See Dr. Nogalski deposition, page 26. He did not recommend any further evaluation or medical treatment specifically related to the claimant's right shoulder. See Dr. Nogalski deposition, page 27. Dr. Nogalski opined that the August 2015 work injury was not the prevailing factor regarding the claimant's current right shoulder condition. See Dr. Nogalski deposition, page 27. Dr. Nogalski testified the claimant required the same shoulder restrictions as set forth by Dr. Smith previously. He found she was at baseline level based on her exam. See Dr. Nogalski deposition, page 30.

Dr. Nogalski opined that the claimant had no objective findings of neuropathic pain related to the August 17, 2015, work injury and her cervical symptoms appeared to be were degenerative and spondylotic in nature. He did not observe any objective correlations with the studies. He did not recommend any additional medical treatment for the 2015 work injury. See Dr. Nogalski deposition, page 36. He found no permanent partial disability resulting from the 2015 work injury. See Dr. Nogalski deposition, page 37.

Kristine Skahan

On November 11, 2016, Ms. Skahan, a vocational expert, interviewed the claimant and reviewed documents pertaining to the claimant's medical history and condition. Ms. Skahan testified that, prior to the 2015 and 2016 injuries, the claimant was working at "light" duty (twenty-pounds) as defined by the Dictionary of Occupational Titles based upon the restrictions assigned by the claimant's 2013 right shoulder surgeon Dr. Smith: 20 pound floor to waist and counter level with no heavy lifting above countertop level" and that such pre-existing shoulder conditions would have been a hindrance or obstacle to employment. Ms. Skahan administered

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the WRAT-IV test as well as a Pain Assessment Scale. Ms. Skahan testified that the restrictions as prescribed by Dr. Cohen would place the at a less than sedentary position. Ms. Skahan concluded that the claimant did not have any transferable skills, citing her work history, lack of technological skills and physical restrictions. Ms. Skahan concluded that the claimant was permanently and totally disabled/unemployable in the open labor market due to the 2015 and 2016 injuries in combination with the claimant's pre-existing physical conditions. Ms. Skahan opined that the claimant would not qualify for funds for a retraining plan to sedentary work due to her age and total restrictions.

She testified that the claimant had a total loss to the competitive and open labor market due to a combination of the preexisting injuries to her right shoulder, combined with her work-related injury on August 17, 2015, and her "work-related occupational repetitive trauma disorder up through 1/1/16 while working as a re-packer for Henniges Automotive Sealing Systems." See Skahan deposition, page 38. She opined that the claimant's difficulties and symptoms related to her pre-existing right shoulder injury were a hindrance to her performing her regular job. See Skahan 1/8/17 report, page 15. She testified that she based her conclusion solely on Dr. Cohen's restrictions. See Skahan deposition, page 46.

Benjamin Hughes

Benjamin Hughes, a vocational expert, reviewed a number of records and concluded that the claimant could expect to work at the light level when observing the Dictionary of Occupational Titles. He testified that he found no specific set of restrictions to remove the claimant from employability. Considering all physician's restrictions, he testified that the claimant could expect to be successful in a number of sedentary/light jobs or be able to return to any previously held position from her past, depending on the specific physician recommendation. He testified that the claimant is capable of full-time work. See Hughes deposition, pages 19, 20 and report. He testified, "I think, when you look at the numerous restrictions and comments given by Dr. Cohen, in this case, that she would still be able to perform some sedentary jobs, again from the perspective of the DOT. This would include things as information clerk, working as a customer service rep, security guard, surveillance system monitor, storage facility rental clerk, parking lot attendant, cashiering or ticket sales, ticket taking." See Hughes deposition, page 20.

MEDICAL CAUSATION

"The claimant in a workers' compensation case has the burden to prove all essential elements of her claim, including a causal connection between the injury and the job." Royal v. Advantica Restaurant Group, Inc., 194 S.W.3d 371, 376 (Mo.App.W.D. 2006) (citations and quotations omitted). "Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission." Id. (citing Bloss v. Plastic Enterprises, 32 S.W.3d 666, 671 (Mo.App.W.D.2000)). Under the statute, "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. § 287.020.2. On the other hand, "[a]n injury is not compensable because work was a triggering or precipitating factor." Id. Awards for injuries "triggered" or "precipitated" by work are nonetheless proper if

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the employee shows the work is the prevailing factor in the cause of the injury. Thus, in determining whether a given injury is compensable, a work-related accident can be both a triggering event and the prevailing factor."

The claimant testified that she held many positions with this employer involving repetitive use of her upper-extremities full-time. Training records contained in the personnel file reveal "clipping wires, end cap assembly, clip assembly, packing/labeling, trimming, bracket assembly and Injection Molding." See Exhibit 4. The claimant testified that some of her earlier jobs also required lifting up to sixty pounds several times an hour. See claimant deposition, page 24. She testified that this included cutting with machines, clippers, and scissors and assembly at this employer's factory and that her hands "were sleeping and weren't waking up." See claimant deposition, page 36. Dr. Verdine, the treating hand surgeon, opined, "She does appear to have bilateral carpal tunnel syndrome. These do appear to be work related in nature... I have recommended sequential bilateral carpal tunnel release..." See Exhibit 7. Dr. Cohen opined that the claimant's bilateral carpal tunnel syndrome was "an occupational disease (repetitive trauma disorder) from the patient's work." He also opined that the claimant's work was the prevailing factor causing this condition. See Exhibit 2. Dr. Enkvetchakul opined, "Based on the information available, it is my opinion that Ms. Miller's carpal tunnel syndrome (median neuropathy at the wrist) is related to her 27 years of work at Henniges Automotive." See Exhibit 7.

Based on the evidence, the claimant sustained her burden to prove that her work for this employer caused her bilateral carpal tunnel syndrome and this issue must be ruled in favor of the claimant.

TEMPORARY DISABILITY

Compensation must be paid to the injured employee during the continuance of temporary disability but not more than 400 weeks. Section 287.170, RSMo 1994. Temporary total disability benefits are intended to cover healing periods and are unwarranted beyond the point at which the employee is capable of returning to work. Brookman v. Henry Transp., 924 S.W.2d 286, 291 (Mo.App. E.D. 1996). Temporary awards are not intended to compensate the Employee after the condition has reached the point where further progress is not expected. Id. Section 287.020.7, RSMo 2000, defines the term "total disability" as used in workers' compensation matters as meaning the "inability to return to any employment and not merely mean[ing the] inability to return to the employment in which the employee was engaged at the time of the accident." The test for entitlement to TTD "is not whether an employee is able to do some work, but whether the employee is able to compete in the open labor market under his physical condition." Thorsen v. Sachs Electric Co., 52 S.W.3d 611, 621 (Mo.App. W.D. 2001). Thus, TTD benefits are intended to cover the employee's healing period from a work-related accident until he or she can find employment or his condition has reached a level of maximum medical improvement. Id. Once further medical progress is no longer expected, a temporary award is no longer warranted. Id. The claimant bears the burden of proving his entitlement to TTD benefits by a reasonable probability. Id.

Temporary total disability awards are designed to cover the employee's healing period, and they are owed until the claimant can find employment or the condition has reached the point

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Injury No.: 16-024233

of maximum medical progress. When further medical progress is not expected, a temporary award is not warranted. Any further benefits should be based on the employee's stabilized condition upon a finding of permanent partial or total disability. *Shaw v. Scott*, 49 S.W.3d 720, 728 (Mo.App. W.D. 2001). The Missouri Supreme Court ruled that if "additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to Section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries."

The plain language of section 287.149.1 does not mandate the commission arbitrarily rely on the maximum medical improvement date to deny TTD benefits, if the claimant is engaged in the rehabilitative process. Instead, whether a claimant is engaged in the rehabilitative process is the appropriate statutory guidepost to determine whether he or she is entitled to TTD benefits under the plain language of Section 287.149.1. It is plausible, and likely probable, that the maximum medical improvement date and the end of the rehabilitative process will coincide, thus, marking the end of the period when TTD benefits can be awarded. However, when the commission is presented with evidence, as here, that a claimant has reached maximum medical improvement yet seeks additional treatment beyond that date for the work-related injury in an attempt to restore himself or herself to a condition of health or normal activity by a process of medical rehabilitation, the commission must make a factual determination as to whether the additional treatment was part of the rehabilitative process. If the commission determines the additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries. *Greer v. Sysco Food Servs.*, 475 S.W.3d 655, 668-69 (Mo. Banc 2015).

The Court, thus, requires a detailed analysis of the claimant's medical treatment to determine whether the claimant is entitled to temporary total disability benefits. In this case, the claimant worked full time with accommodations for other health conditions in 2014 and 2015. The claimant described the work as "menial" in her deposition. When asked to elaborate, the claimant cited dusting, cutting little pieces of labels, collating and stapling 1500 copies of a five-page document. The claimant testified that her last day of work for any employer was on January 22, 2016. On March 21, 2016, Dr. Verdine commenced active medical treatment of the claimant's condition, and the defense initiated payment of temporary total disability benefits, which continued through August 4, 2016, for a total of $7,958.14.

The claimant contends that she is entitled to additional temporary total disability benefits from January 23 to March 20, 2016, because her employer terminated her from her "menial" work position and she was unemployable in the open labor market pending treatment of her bilateral carpal tunnel syndrome.

Given the medical records describing the claimant's condition, her employer's conclusion to terminate the claimant from even "menial" work, and the description of the claimant's medical

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

condition by Dr. Verdine and Dr. Enkvetchakul during that time, it is logical to conclude that no employer would employ the claimant pending her surgical procedures to cure and relieve her medical condition. Kristine Skahan's testimony certainly adds additional credence to this conclusion. Based on the weight of the evidence, the claimant is awarded temporary total disability benefits from January 23, 2016, to August 4, 2016, 27-5/7 weeks, (11,088.49) and the employer has a credit for payment of 7,958.14. Therefore, the claimant is awarded the balance of $3,130.45.

Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures. Section 287.190.6(2), RSMo 2016.

"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 2000. The test for permanent total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. *Sutton v. Masters Jackson Paving Co.*, 35 S.W.3d 879, 884 Mo.App. 2001. The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired. *Id.*

Workers' compensation awards for permanent partial disability are authorized pursuant to Section 287.190. "The reason for [an] award of permanent partial disability benefits is to compensate an injured party for lost earnings." *Rana v. Landstar TLC*, 46 S.W.3d 614, 626 (Mo. App. W.D. 2001). The amount of compensation to be awarded for a PPD is determined pursuant to the "SCHEDULE OF LOSSES" found in Section 287.190.1. "Permanent partial disability" is defined in Section 287.190.6 as being permanent in nature and partial in degree. Further, "[a]n actual loss of earnings is not an essential element of a claim for permanent partial disability." *Id.* A permanent partial disability can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. *Id.* "[T]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." *Id.* "It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered." *Id.* In a workers' compensation case in which an employee is seeking benefits for PPD, the employee has the burden of not only proving a work-related injury, but that the injury resulted in the disability claimed. *Id.*

None of the forensic experts opined that the claimant's last injury alone caused the claimant to be totally disabled as defined above. However, Dr. Cohen opined that the claimant suffered bilateral carpal tunnel syndrome and trigger fingers in her right ring and small fingers from the occurrence and opined:

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

Due to the work-related occupational disease (repetitive trauma disorder) up through 1-1-16, it is my opinion that she has a 25% permanent partial disability of the right wrist and a 25% permanent partial disability of the left wrist (or a total of 35% permanent partial disability of the right wrist and a 35% permanent partial disability of the left wrist). Due to the significant involvement of both upper extremities, there is a loading factor of 20%. See Exhibit 2.

Dr. Cohen recommended restricting the claimant from repetitive gripping, grasping, keeping the hands in any type of awkward positions, and avoiding exposure to vibration as well as a restriction of no lifting greater than 10 pounds with either hand except on an occasional basis as a result of this injury. See Exhibit 2. Dr. Cohen did not distinguish the disability from the trigger fingers and the bilateral carpal tunnel syndrome. He apparently lumped it together.

On November 28, 2016, Dr. Verdine opined that the claimant suffered a "1% person for right, 1% person for left = 2%" in response to a question requesting a permanent partial impairment rating. See Dr. Verdine deposition, Attachment. He testified that the claimant suffered a permanent partial impairment of "two percent at the level of the right hand, one percent the level of the left hand." See Dr. Verdine deposition, page 18. He opined, "that she did not have any restrictions for work." See Dr. Verdine deposition, page 19.

One area of contention in this case is that the employer denies liability for the claimant's trigger fingers. On September 12, 2016, Dr. Cohen diagnosed right hand trigger fingers in her right ring and small finger. See Exhibit 2.

On July 3, 2017, Dr. Brown examined the claimant, took a medical history, and reviewed the claimant's medical records pertaining to the claimant's trigger finger condition.

She indicates these symptoms began in 2015, although in the only record have, there is no documentation of trigger finger in the left hand. I would expect, if Mrs. Miller developed trigger fingers at the end of 2015 at the end of her work for Henniges, hand her employment at Henniges was the prevailing factor that her symptoms would improve now that she has not worked for over a year and a half. Either way, if it is documented that Ms. Miller did have left middle and ring trigger fingers while she was actively working at Henniges Automotive, she was exposed to repetitive activities, which could cause trigger fingers. If the triggering did not develop until after she last worked at Henniges Automotive, then I would not consider that work the prevailing cause. With regard to Ms. Miller's basal joint osteoarthritis, for this I would recommend a Cool Comfort thumb spica splint, a nonsteroidal anti-inflammatory medication, and she also may benefit from a steroid injection. Osteoarthritis is a common condition in women in their late 50's. This is a result of the aging process and I do not believe this would be causally related to her work activities being the prevailing cause. See Exhibit C.

On April 9, 2018, he reviewed medical records from Dr. Enkvetchakul and Dr. Verdine and found no diagnosis of trigger fingers between June 18, 2014, and August 31, 2016, and concluded,

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

With regards to the symptoms of triggering of the left middle and ring fingers, there is no mention in any of those records I reviewed of triggering of the left middle and ring fingers or a diagnosis of a left middle or ring finger in either Dr. Enkvetchakul's records or Dr. Verdine's records form June of 2014 through August of 2016. Based on the review of the additional records, it does not appear the need for treatment for Ms. Miller's symptoms of triggering of her left middle and ring fingers would be causally related to her work activities at Henniges Automotive where she last worked in January of 2016. See Exhibit C.

Given Dr. Brown's expertise as a hand surgeon, his method of analysis is particularly credible. While he reviewed Dr. Verdine's medical records and found no mention of trigger finger in the claimant's right hand, the medical records submitted in evidence reveal that Dr. Verdine recorded patient complaints of "knots and a month locking of her ring finger." trigger finger." See Exhibit B. On physical examination, Dr. Verdine found "visible and palpable triggering of the right ring finger." See Exhibit B. Dr. Verdine offered medical and surgical treatment for the condition, but the claimant declined treatment at that time. See Exhibit B.

Apparently, Dr. Brown did not have the opportunity to review that portion of Dr. Verdine's medical records. A search of the medical records prior to the date of injury fails to disclose any mention of triggering in the claimant's right small finger. Based on Dr. Brown's analysis, the claimant's working conditions were the prevailing factor of her trigger finger in her right ring finger and were not the prevailing factor causing the trigger finger in her right small finger.

Based on the credible evidence, the claimant suffered a 20% permanent partial disability of the right wrist due to her carpal tunnel syndrome and right ring trigger finger, and a 17 1/2% permanent partial disability of the left wrist due to her carpal tunnel syndrome. The combination of the disabilities exceed the simple sum of the individual disabilities by 17 1/2%.

In a well-written brief, the claimant argues that the employer has liability for permanent total disability benefit based on the findings of Dr. Cohen and Ms. Skahan. Dr. Cohen opined that the claimant had the following restrictions:

Regarding the work injury of 08-17-15, she needs to be restricted from any repetitive twisting and turning of her head and neck, and no holding her head in any type of awkward or sustained position. Regarding her hands, she needs to be restricted from repetitive gripping, grasping, keeping the hands in any type of awkward positions, and avoiding exposure to vibration. No lifting greater than 10 pounds with either hand except on an occasional basis.

Regarding the work related occupational disease up through 01-01-16, regarding her hands Ms. Miller needs to be restricted form any work in which she has to repetitively grip or grasp with her hands, no use of the hands with vibratory tools, and no use of her hands in sustained awkward positions. No significant pushing with her hands. No lifting greater than 10 pounds with either hand except on an occasional basis. See Exhibit 2

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

However, comparing the claimant's restrictions from the 2015 occurrence with those of the 2016 occurrence, they appear to be essentially identical. Assuming the validity of Dr. Cohen's restrictions, the obvious conclusion is that the claimant had the same issues regarding employability before the 2016 occurrence as she did after the 2016 occurrence. The inference is that if the claimant is now unemployable in the open labor market, she was unemployable in the open labor market prior to the 2016 occurrence. If the claimant had the same restrictions before the 2016 occurrence as she had after the 2016 occurrence, it follows that the claimant was unemployable in the open labor market prior to the 2016 occurrence based on Dr. Cohen's restrictions. Ms. Skahan based her conclusions exclusively on Dr. Cohen's restrictions.

Dr. Verdine, the treating hand surgeon opined that the claimant had no work restrictions due to her carpal tunnel syndrome after the carpal tunnel releases. See Dr. Verdine deposition, page 19. Thus, the claimant suffered no additional restrictions from the 2016 occurrence than she had before the 2016 occurrence.

It should be noted that the defense vocational expert, Mr. Hughes found various positions that the claimant for which the claimant would be a employable and place-able including information clerk, customer service representative, surveillance system monitor, cashier, and ticket sales/taker. See Mr. Hughes deposition, page 20. He also opined that those positions exist in reasonable numbers in the claimant's geographical area. While some positions that he listed such as parking lot attendant seem unavailable in that geographical area, others would seem to be available in reasonable numbers in her geographical area.

Based on the credible evidence, the claimant is awarded a 20% permanent partial disability of the right wrist due to her carpal tunnel syndrome and right ring trigger finger (35 weeks), and a 17 1/2% permanent partial disability of the left wrist due to her carpal tunnel syndrome (30.625 weeks). The combination of the disabilities exceed the simple sum of the individual disabilities by 17 1/2% (11.484375 weeks).

SECOND INJURY FUND

The pertinent provisions of Section 287.220, RSMo Supp. 2019, that control disability benefits from the Second Injury Fund are:

1. (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

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Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

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 work-related 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.

(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.

To recover against the Second Injury Fund in this case based upon two permanent partial disabilities, the claimant must prove the following conditions:

(1) The claimant has a medically documented pre-existing 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 (a) a direct result of a compensable injury as defined in section 287.020; (b) not a compensable injury, but such pre-existing disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated pre-existing injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or (c) a preexisting permanent partial disability of an extremity when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity.

(2) The claimant thereafter sustains a subsequent compensable work-related injury that, when combined with the pre-existing disability, as set forth in items (a) or (b), above results in a permanent total disability. Section 287.220.3, RSMo 2016.

WC-32-R1 (6-81)

Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Linda M. Miller

Injury No.: 16-024233

Section 287.220, RSMo 2016, contains four distinct steps in calculating the compensation due an employee, and from what source:

1. The employer's liability is considered in isolation—"the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability;"

1. Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered;

1. The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and

1. The balance becomes the responsibility of the Second Injury Fund. *Nance v. Treasurer of Missouri*, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

Based on the above findings, the claimant was unemployable in the open labor market prior to the 2016 occurrence based on the findings from Dr. Cohen and Ms. Skahan. However, even if the claimant were found to be permanently and totally disable from a combination of the disabilities from the last occurrence combined with her pre-existing permanent partial disabilities, the Second Injury Fund would have no liability under Section 287.220 as quoted above, because the claimant's pre-existing permanent partial disabilities are not the conditions that qualify the case for Second Injury Fund benefits under the statute.

With regard to pre-existing conditions, Dr. Cohen diagnosed prior shoulder surgeries, cervical and upper thoracic myofascial pain disorder, and a seizure disorder. Dr. Cohen opined that the claimant suffered a 20% permanent partial disability of the cervical spine (80 weeks), a 5% permanent partial disability of the thoracic spine (20 weeks), a 40% pre-existing permanent partial disability of the right shoulder (92.8 weeks), and a 20% pre-existing permanent partial disability attributable to her seizure disorder (80 weeks). Dr. Cohen opined that the pre-existing conditions were a hindrance to her employment or re-employment. See Exhibit 2. Dr. Cohen opined that the claimant's pre-existing permanent partial disabilities combined synergistically with her permanent partial disabilities from the 2015 and 2016 occurrences and resulting in permanent total disability. See Exhibit 2.

The claimant established no disability from military service or work at a sheltered workshop.

In addition, the record discloses no evidence that the claimant's pre-existing permanent partial disabilities "directly and significantly aggravates or accelerates the subsequent work-related injury". Although the claimant suffered a 20% permanent partial disability to her right shoulder in Injury Number 11-025447, the stipulated settlement does not equal a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation. The settlement approved by the Division of Workers' Compensation is equal to 46.4 weeks of benefits according to records of the Division of Workers' Compensation.

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Issued by DIVISION OF WORKERS' COMPENSATION Linda M. Miller

Injury No.: 16-024233

On the other hand, the evidence discloses a pre-existing 40% permanent partial disability to the claimant's right shoulder (92.8 weeks) and a subsequent 17 1/2% permanent partial disability to her left hand from this occurrence. However, the weight of the evidence does not establish that the claimant suffered permanent total disability from a combination of those two permanent partial disabilities. Therefore, the Claim against the Second Injury Fund is denied.

I certify that on **1-7-20**, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **__________________________**

Made by: **__________________________**

**EDWIN J. KOHNER**

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)