MaryAnn Gray v. not specified

ALJ would essentially be ordering a second trial before a new ALJ who is unfamiliar with the case."1

In its October 7, 2021, brief before the Commission, the employer/insurer attempts to resurrect the issues of timeliness of the employee's application for review and adequacy of the employee's brief. The employer/insurer also, for the first time, challenges the sufficiency of the employee's application for review under Commission Rule 8 CRS 20$3.040(3)(\mathrm{A})$.

For purposes of our review herein, our prior actions resolving opposing parties' challenge to the timeliness of the employee's application for review and the adequacy of her attorney's brief are final. We decline to extend the time limit for filing an answer to the employee's application for review set out in 8 CSR 20-3-020.(4) to entertain the employer/insurer's over twenty-three months late challenge to the adequacy of the employee's application for review.

We deny the employee's request for a remand to submit additional evidence to meet the statutory requirements of $\S 287.220 .3$. We concur with the appellate court's reasoning in the recent case of Randall Clinkenbeard v. State of Missouri Department of Corrections and Treasurer of Missouri as Custodian of Second Injury Fund, SD36942 (December 21, 2021), which held,

Contrary to Claimant's argument, Cosby did not bring about a change in the law. "[T]he plain and ordinary language of section 287.330 .3 " has not changed since its effective date on January 1, 2014, and it applies to "[a]ll claims against the [SIF] for injuries occurring after January 1, 2014.

Id. p. 9. (citations omitted, emphasis in original)

In the interest of judicial efficiency, we further deny the employee's request to remand this case to the Division for more complete findings of fact as authorized by $\S 287.510 .5$.

Injury No. 13-095678

This claim alleged the employee sustained "trauma to her right knee, right ankle, right forearm and back while working" on December 14, 2013. In addition to the employee's primary injury claim against the employer/insurer, she filed a claim against the SIF alleging permanent partial disability (PPD) based on preexisting injuries that included chronic asthma/fibromyalgia, right shoulder, back and hip, depression/anxiety, right orbital bone, right forearm, and right foot/toes.

The ALJ's award listed the issues to be decided in this claim as 1) the employee's entitlement to additional temporary total disability (TTD) from the employer after December 14, 2013, and 2) the liability of the employer and/or SIF for PPD.

[^0]

[^0]: ${ }^{1}$ Brief of Respondent Employer, p. 4.

The award included no findings on the issue of the employer's liability. Rather, the ALJ denied the employee's claim based on the issue of SIF liability, concluding, "Claimant has failed to meet her burden that this injury combines synergistically with her preexisting conditions to create a greater overall disability than the simple sum of the disabilities when added together. ${ }^{2}$

The employee's application for review raised the following issues regarding the ALJ's findings in respect to the employee's 2013 injury claim:

1. The Administrative Law Judge ignored the issue of employer's liability, not making any findings of fact or rulings of law, about whether there was even a compensable injury, and instead made determinations on issues that presuppose that the issue of employer's liability had already been addressed.
2. The Administrative Law Judge cannot make any determinations regarding Second Injury Fund liability, either for PPD or PTD benefits, without first addressing the issue of employer's liability.
3. The Administrative Law Judge, without addressing whether there has been a compensable injury denied additional TTD benefits. Such a ruling presupposes a finding on the existence or nonexistence of a compensable injury.

We agree that the ALJ erred in failing to make findings on the issue of the employer/insurer's liability for disability related to the employee's December 14, 2013, primary injury claim. SIF liability does not arise until after the degree of disability from the last (primary) injury considered alone is assessed. See Lawrence v. Treasurer of Mo. - Custodian of the 2nd Injury Fund, 470 S.W.3d 6, 14 (Mo. App. 2015).

Employer/insurer's Exhibit G included a December 23, 2013, Workhealth Work Status Summary that stated its purpose as "WC Injury Followup." ${ }^{3}$ This record diagnosed the employee with knee and wrist contusions and sprains, and strains of her lumbar region and neck. It listed work restrictions of "Wear Splint/Brace, No Lifting, No Bending (at waist), No Kneeling/Squatting, 10 lb . Max Push/Pull-L, Alternate Stand and Sit, Limited Rigorous Grasping-R"4 It indicated the employee's work status as "Return to Work with Restrictions As Of: 12/16/13." 5 The Employer/Insurer's Exhibit G included December 23, 2013, and January 2, 2014, and January 3, 2014, Workhealth charting notes that documented treatment related to employee's December 14, 2013, fall injury for discomfort in the employee's mid-back, right hand and wrist, right knee and ankle, and associated with headaches due to her work fall. The Employer/Insurer's Exhibit E, a January 3, 2014, office note from SSM Physical Therapy, documented the employee's

[^0]

[^0]: ${ }^{2} Award, p. 13.

{ }^{3} Transcript, p. 993.

{ }^{4} \mathrm{Id}.

{ }^{5}$ Transcript, p. 994.

Improve: MaryAnn Gray

-4 -

December 14, 2013, injury and related treatment. This note stated, "Pt. injured her back, right wrist and right knee at work on 12/14/13 when she walked into a metal cart, hitting her knee and catching herself with her right wrist as she fell forward over the table."6 A SSM Physical Therapy January 3, 2014, note recorded the employee's status as "currently off work from her job due to the injury."7 It stated the employee was "having [a] lot of back pain which hinders her activity level."8

Dr. Volarich's July 1, 2015, report found that the employee's December 14, 2013, work injury was "the substantial contributing factor as well as the prevailing or primary factor causing the cervical bilateral shoulder girdle strain injuries with myofascial pain, aggravation of her lumbar syndrome, the right wrist strain and the right knee contusion for which she received conservative treatment. The work injury was the prevailing factor causing her symptoms, need for treatment, and resulting disabilities."9

Dr. Volarich evaluated the employee's disability relating to this injury as:

1. 20% PPD BAW rated at the cervical spine and bilateral shoulder girdles due to severe strain and myofascial pain syndrome, accounting for neck discomfort and lost motion.
2. 5% PPD BAW rated at the lumbar spine due to aggravation of lumbar syndrome causing increased myofascial pain.
3. 15% PPD of the right lower extremity at the knee due to the contusion causing residual patellofemoral pain.
4. No PPD attributable to employee's right ankle strain.

Dr. Volarich's report included no disability ratings attributable to the employee's preexisting disability based on his finding that the employee's prior right knee strain, lumbar strains, right shoulder strains and contusions, and fracture of the nose resolved before all three of the employee's current work injuries. Dr. Volarich found considerable disability existed because of the employee's psychiatric disorders and deferred to psychiatry for assessment. He found that the combination of the employee's disabilities created a substantially greater disability than the simple sum or total of each and that a loading factor should be added.

Employer/insurer's expert Dr. Bernard Randolph, Jr. provided no disability ratings for the employee because he was not asked to do so.

Based on the employer's treatment records and in the absence of any ratings other than Dr. Volarich's, we find the weight of the evidence supports an award of PPD against the employer/insurer related to the employee's December 14, 2013, injury. We find that the employee sustained PPD related to this injury consisting of:

- 15\% PPD BAW (60 weeks) rated at the cervical spine and bilateral shoulder girdles due to severe strain and myofascial pain syndrome, accounting for neck discomfort and lost motion.

- 5\% PPD BAW (20 weeks) rated at the lumbar spine due to aggravation of lumbar syndrome causing increased myofascial pain.

- 10\% PPD (16 weeks) of the right lower extremity at the knee due to the contusion causing residual patellofemoral pain.

The employer's designated health care provider, Workhealth, released the employee to return to work with restrictions on December 16, 2013. The employee offered no arguments in support of an award of additional TTD in her September 22, 2021, brief to the Commission. We find insufficient evidence in the record to support an award for additional TTD related to the employee's December 14, 2013, work injury.

Regarding SIF liability under § 287.220.2, Dr. Volarich's evaluation left open the possibility of an SIF PPD award based on proof of preexisting psychiatric disability that combined with disability from the primary injury to result in greater disability. However, the employee's expert, psychiatrist Dr. Liss, confined his opinion regarding the effects of the employee's preexisting psychiatric disability to the employee's June 17, 2014, work injury claim. We, therefore, concur with the ALJ's finding that the employee failed to establish a SIF PPD claim related to her December 14, 2013, injury.

This claim alleged that on June 17, 2014, in the course and scope of her employment, the employee "sustained trauma causing permanent injury . . . to her face, head, BAW [body as a whole], psych, and right forearm." In addition to the primary injury claim against the employer/insurer, the employee alleged permanent total disability (PTD) against the SIF.

The ALJ's award listed the issues to be decided in this claim as 1) the employee's entitlement to additional TTD from the employer/insurer after November 19, 2014, and 2) the liability of the employer/insurer and/or the SIF for PTD or PPD.

Without resolving the issues relating to the employer/insurer's liability, the ALJ found that $\S 287.220 .3$ applied to the employee's June 17, 2014 work injury, under Cosby v. Treasurer of State, 579 S.W.3d 202 (Mo. banc 2019). Addressing the issue of SIF liability, the ALJ found, "It is unclear whether either of these claims [Injury No. 13095678 or Injury No. 12-107092] could be considered under the second category [§ 287.220.3(2)(a) (ii)], as it will depend on the assessment of disability, if any."10 This statement appears to be a non sequitur in that it followed the ALJ's denial of all compensation for both these injury claims earlier in the same award, though without any findings regarding the employer/insurer's liability for either claim. The ALJ then stated, "However, Claimant also does not have any expert evidence that evaluates if either of those claims would be sufficient to combine with the primary injury to cause total disability."11

[^0]

[^0]: ${ }^{10} Award, p. 14.

{ }^{11}$ Award, p. 14.

The ALJ opined that the employee's preexisting psychological condition might constitute a preexisting disability that directly and significantly aggravated or accelerated the subsequent work-related injury under $\S 287.220 .3(2)$ (a)(iii) but found, "Claimant has not presented any evidence to support that condition would fall into that category or that it would be sufficient when combined with the primary injury to cause total disability (emphasis added)." 12

This finding is arguably inaccurate in light of the employee's expert Dr. Jay L. Liss's opinion that the employee's preexisting psychiatric conditions combined with psychiatric disability related to the 2014 injury and that "Because the sum of the parts are greater than a whole, Ms. Gray is permanently and totally disabled and could not enter the job market because of the psychiatric diagnoses alone."13 Dr. Liss's opinion might be interpreted as finding that the employee's preexisting psychiatric condition of greater than fifty weeks directly and significantly aggravated and accelerated the PTSD he found the employee sustained as a result of her 2014 work injury.

Also inconsistent with the ALJ's finding that the employee presented no evidence that a preexisting disability exceeding fifty weeks aggravated or accelerated psychiatric disability attributable to the employee's 2014 injury is his denial of compensation against the SIF based on a finding the expert opinion of the employer's witness, psychiatrist Dr. Stacey Smith, was "much more persuasive and comprehensive"14 than the testimony of the employee's expert Dr. Liss, who "saw Claimant one time and only for a brief period."15

The final paragraph of the ALJ's substantive findings asserts, "Additionally, the Court finds Claimant's testimony not credible, especially in light of her personal disposition toward Employer, her new duties and responsibilities and the substantial and well voiced complaints by Claimant of her working conditions."16 We disavow this blanket disparagement of the employee's believability. We note these findings are inconsistent with the ALJ's specific reliance on the employee's testimony earlier in his Findings of Fact. ${ }^{17}$ We further find that the legitimacy of the employee's dissatisfaction with her duties, responsibilities, and working conditions was substantiated by the employer/insurer's psychiatric expert Dr. Smith's release of the employee to return to work conditioned on the employer's placement of the employee outside of its in-patient unit. ${ }^{18}$

The ALJ concluded his award by stating: "For Injury \#14-046969, Claimant has failed to meet her burden to show she is permanently and totally disabled pursuant to the requirements of the law. Therefore, no award of benefits is awarded in this matter."19

[^0]

[^0]: 12 Id.

${ }^{13} Transcript, p. 135.

{ }^{14} Award, p. 14.

{ }^{15} \mathrm{Id}., p. 15

{ }^{16} \mathrm{Id}.

{ }^{17} Id., pp. 6-7.

{ }^{18} Transcript, pp. 876-877.

{ }^{19}$ Award, p. 15.

The employee's application for review raised the following issues regarding the ALJ's findings in respect to the employee's 2014 injury claim:

1. The Administrative Law Judge ignored the issue of employer's liability, not making any findings of fact or rulings of law, about whether there was even a compensable injury, and instead made determinations on issues that presuppose that the issue of employer's liability had already been addressed.
2. The Administrative Law Judge cannot make any determinations regarding Second Injury Fund liability, either for PPD or PTD benefits, without first addressing the issue of employer's liability.
3. The Administrative Law Judge, without addressing whether there has been a compensable injury denied additional TTD benefits. Such a ruling presupposes a finding on the existence or nonexistence of a compensable injury.
4. The Administrative Law Judge applied the wrong versions [sic] of Section 287.220 in denying Second Injury Fund benefits, and should have applied the controlling precedent laid out in Gattenby v. Treasurer of the State of Missouri - Custodian of the Second Injury Fund, 516 S. W.3d 859 (2017).

For the same reasons as discussed in our findings regarding the employee's 2013 claim, we find the ALJ erred in failing to determine the employer/insurer's liability for the employee's June 17, 2014, primary injury.

Employer/insurer's Exhibit F documented employee's emergency department treatment at SSM St. Mary's Health Center on June 17, 2014, and her report of an assault at work when "this hugh [sic] patient attacked me, punched me in the face, [and] hurt [my] left back and right arm". ${ }^{20}$ The emergency department staff's diagnoses were "contusion of forearm and alleged assault." ${ }^{21}$ Employer's Workhealth records also documented the employee's June 17, 2014, injury. They included a diagnosis of "\#1. Left neck sprain: Significant pain. \#2. Contusion face: Resolving. \#3. Contusion right forearm: Resolving. \#4. Posttraumatic stress reaction: Followed by counselor at work."22

Dr. Volarich evaluated the employee's disability related to the 2014 injury as 5\% PPD of the BAW rated at the cervical spine ( 20 weeks) due to aggravation of her cervical myofascial pain syndrome contributing to lost motion in the neck. ${ }^{23}$ Dr. Volarich's evaluation of 5\% PPD related to the employee's June 7, 2014, injury is uncontroverted by any other medical opinion and supported by the employer's records of treatment

[^0]

[^0]: ${ }^{20} Transcript, p. 967.

{ }^{21} Id., p. 980.

{ }^{22} Id., p. 522.

{ }^{23}$ Transcript, p. 89.

Injury Nos. 12-107092, 13-095678 & 14-046969

Employee: MaryAnn Gray

- 8 -

related to the employee's 2014 injury. We credit Dr. Volarich's opinion that the employee sustained a 5% PPD disability related to her 2014 work injury.

Dr. Randolph released the employee to return to full duty work on October 9, 2014, with respect to her neck and shoulder injuries. Dr. Smith released the employee to full duty work half days effective October 27, 2014. On February 5, 2015, Dr. Smith released the employee to full duty work, eight hours a day, five days a week, "no in-[patient] unit." We find this evidence insufficient to support an award against the employer/insurer for additional TTD in connection with the employee's June 17, 2014, work injury. We note that the employee's attorney offered no arguments supporting additional TTD for the 2014 injury in his brief to the Commission.

As previously noted, Dr. Volarich assigned no preexisting disability to any preexisting physical conditions but found that considerable disability existed as a result of the employee's psychiatric disorder, which he deferred to psychiatry for assessment.

The psychiatric expert testimony regarding disability related to the employee's 2014 work injury and preexisting psychiatric disability was in stark contrast. The employee's expert Dr. Liss found that the employee sustained 50% PPD of the BAW for anxiety, depression, and ADD prior to her three workers' compensation claims. He further opined that the employee suffered PTSD as a result of the June 17, 2014, injury with associated anxiety and depression, as distinguished from anxiety and depression for which the employee received treatment before the injury. He evaluated the employee's psychiatric disability related to the 2014 injury as 50% PPD of the BAW. Dr. Liss considered the employee PTD solely because of her combined psychiatric diagnoses, the prevailing cause of which was her June 17, 2014, assault.

The employer/insurer's expert, psychiatrist Dr. Stacey L. Smith, treated the employee from September 11, 2014, through February 5, 2015. Dr. Smith opined that the employee had no psychiatric disability as a result of the 2014 work event. She believed that the employee's only psychiatric disorder consisted of preexisting somatization. Dr. Smith opined:

Ms. Gray's history and presentation is consistent with pre-event Somatization Disorder. Level of evidence for this is clear and convincing. Her emotional reaction to events of 6/17/14 is consistent with this diagnosis. The prevailing cause of her reaction is the pre-existing Somatization DO. This represents an ingrained longstanding response style. This response style is not 'caused' by an event.

24 Id., p. 876.

25 An allegation in the employee's brief's Statement of Facts suggesting that the employer was unable to accommodate the work restrictions associated with employee's June 17, 2014, work injury was unsubstantiated. Claimant's Brief for the Labor and Industrial Relations Commission, filed September 22, 2021, p. 4.

26 Transcript, p. 135.

27 Id., p. 827.

28 Id., p. 829.

29 Transcript., p. 935

Dr. Smith did not evaluate any physical disabilities the employee had related to her work injuries.

Based on the credible expert opinion of the employer/insurer's expert, Dr. Smith, we find that the employee sustained no psychiatric PPD as a result of her June 17, 2014, work injury.

Employee's vocational expert Delores Gonzalez opined that the employee "is not a candidate for vocational rehabilitation as she is not currently capable of any competitive work for which there is a reasonably stable job market as a result of the work injuries of 11-2012, 12-14-13, and 6-7-14 in combination with each other and in combination with her pre-existing psychiatric disabilities/conditions [emphasis added]."30 An opinion that includes non-qualifying preexisting disabilities in finding an employee PTD for purposes of SIF liability does not satisfy the requirements of § 287.220.3 RSMo. Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 182 (Mo. 2021).

The evidence in the record fails to support the employee's SIF claim for PTD under $\S 287.220 .3$, the statute applicable to the employee's 2014 injury claim under the Supreme Court's ruling in Cosby v. Treasurer of State, 579 S.W3d 202 (Mo. banc 2019). We find the SIF has no liability related to the employee's 2014 injury claim.

We modify the award of the ALJ. We affirm and adopt the ALJ's findings regarding the employee's Injury No. 12-107092. We modify the award of the ALJ concerning Injury Nos. 13-095678 and 14-046969 as to the issue of the employer/insurer's liability for PPD.

Regarding Injury No. 13-095678, the employee is entitled to, and the employer/insurer is hereby ordered to pay, permanent partial disability benefits at the stipulated weekly compensation rate of $\ 446.85 in the amount of:

- 15\% PPD BAW (60 weeks) rated at the cervical spine and bilateral shoulder girdles

- 5\% PPD BAW (20 weeks) rated at the lumbar spine due to aggravation of lumbar syndrome

- 10\% PPD (16 weeks) of the right lower extremity at the knee.

Regarding Injury No. 14-046969, the employee is entitled to, and the employer/insurer is hereby ordered to pay permanent partial disability benefits at the stipulated weekly compensation rate of $\ 446.85 in the amount of 5 % PPD BAW ( 20 weeks) for disability to the cervical spine.

[^0]

[^0]: ${ }^{30}$ Id., p. 193.

- 10 -

Injury Nos. 12-107092, 13-095678 & 14-046969

The Commission approves allowance of an attorney's fee of 25% of all payments hereunder in favor of Daniel Keefe, attorney at law, for necessary legal services rendered.

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

The award and decision of Administrative Law Judge Marvin O. Teer, Jr. is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 10th day of February 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**SEPARATE OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed the evidence, read the briefs of the parties, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I concur with the majority's opinion to the extent that it finds that the administrative law judge (ALJ) erred in failing to address the employer/insurer's liability with respect to the employee's claims in Injury Nos. 13-095678 and 14-046969.

Concerning Injury No. 12-107092, I would reverse the ALJ's denial of compensation. The ALJ correctly found, based on the employee's testimony, that she sustained a compensable accident in November 2012 while trying to catch an obese patient who appeared to be fainting. The patient threw her body on the employee, causing the employee to hit a box on the wall, feeling immediate pain in her left shoulder, left hip and low back. The ALJ rejected Dr. Volarich's diagnoses of lumbar right hip girdle contusion and right scapular contusion and his disability evaluations relating to this work injury based on a finding that "there is no objective medical evidence to support this finding as Claimant had no treatment, diagnoses or testing done at the time of the injury." ${ }^{31}$

The ALJ was not free to disregard Dr. Volarich's unrebutted, unimpeached expert medical testimony regarding the employee's 2012 work accident, even in the absence of objective evidence. The reference to objective evidence in $\S 287.190 .6(2)$ does not apply where there is no disagreement in medical opinions. That section states, "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings." (emphasis added). In this case, there are no conflicting medical opinions.

Dr. Volarich's opinion is the only one to speak to PPD sustained as a result of the employee's November 30, 2012, work accident.

Furthermore, the ALJ ignored Dr. Volarich's deposition testimony which discussed his objective findings regarding the employee's 2012 work injury:

Q For the injury that occurred in November of 2012 she didn't have any formal treatment for that injury, is that correct?

A Correct.

Q And yet you rated 10 percent permanent partial disability to the body referable to the lumbar spine and the lumbar right hip girdle.

And another 10 percent permanent partial disability of the right shoulder girdle.

Were there any objective findings in your physical exam that could provide evidence as to disability in those two regions?

[^0]

[^0]: ${ }^{31}$ Award, p. 12.

A Well, a couple things that I found. The sensory exam was difficult to interpret since she told me she couldn't feel pinprick around the shoulders or hip girdles. So I wasn't sure what that meant exactly.

As far as other objective findings, there was range of motion loss in the lumbar spine. And range of motion loss in the shoulder girdles.

I also found mildly positive impingement signs in the right shoulder girdle. Those are objective findings on physical exam.

And I believe everything else was pretty much okay.

Q Did you find any trigger points in her posterior shoulder or her lumbar spine?

A I did. I neglected to mention that. That's on the spinal examination. There were trigger points in both of those areas, the paraspinals around the neck, trapezius, and upper rhomboids.

And in the low back there were trigger points in the soft tissues of the paraspinals and over the pelvic brim. Those are objective as well.

Q And can somebody fake a trigger point?

A No. A trigger point is an objective finding on physical examination. ${ }^{32}$

A fact-finder "may not arbitrarily disregard or ignore competent, substantial, and undisputed evidence of witnesses not impeached or base its finding on conjecture or its own opinion unsupported by sufficient evidence." Bond v. Site Line Surveying, 322 S.W.3d 165, 171 (Mo. App. 2010).

Concerning the employee's 2013 claim, I dissent from the majority's decision to the extent that it does not award the full amount of disability Dr. David Volarich assessed as attributable to the employee's primary injury:

- 20\% PPD of the body as a whole (BAW) rated at the cervical spine and bilateral shoulder girdles due to the severe strain injury and myofascial pain syndrome, accounting for neck discomfort and lost motion.

- 5\% PPD of the BAW rated at the lumbar spine due to aggravation of the employee's lumbar syndrome causing increased myofascial pain.

- 15\% PPD of the right lower extremity at the knee due to the contusion causing residual patellofemoral pain.

Because there are no contrary opinions, Dr. Volarich's evaluation of disability should be adopted.

Concerning the majority's procedural rulings, I disagree with the majority's ruling on the employee's request to remand this case to the Division of Workers' Compensation (Division) to allow the employee an opportunity to develop her case for PTD against the Second Injury Fund (SIF) under § 287.220.3 RSMo. As employee's brief notes, when

[^0]

[^0]: ${ }^{32}$ Transcript, pp. 59-60.

Injury Nos. 12-107092, 13-095678 \& 14-046969

Employee: MaryAnn Gray

-3 -

this case was tried on June 10, 2019, Gattenby v. Treasurer of State of MissouriCustodian of Second Injury fund, 516 S.W.3d 859 (Mo. App. 1017) controlled the SIF's liability for PTD benefits in post-2014 primary injury cases. In that case, the appellate court held that if any of an employee's preexisting disabilities existed prior to January 1, 2014, then the SIF's liability would be analyzed under $\S 287.220 .2$, rather than the newer § 287.220.3. However, on June 25, 2019, the Missouri Supreme court handed down its decision in Cosby v. Treasurer, 579 S.W.3d 202 9Mo. banc 2019), overruling Gattenby, and redefining employees' burden of production to recover benefits from the SIF, and imposing additional requirements that, before the hearing, had not existed for claims like the employee's here.

Cosby could not have been expected to change the landscape with respect to the SIF's liability for PTD benefits, as that case dealt only with the SIF's liability for permanent partial disability benefits following the 2014 amendments. Nonetheless, Cosby overruled the Western District Court of Appeals' interpretation of the 2014 amendments with respect to PTD benefits as well as PPD benefits. When Cosby came down, the employee's evidence became incomplete. Due process demands that the employee at least be given a chance to elicit testimony from the experts who have already testified in this case as to which, if any, of the employee's preexisting disabilities fall into which, if any, of the categories delineated in $\S 287.220 .3$. The employee had no notice of the additional burdens that the Missouri Supreme Court would place on claims like hers when it handed down its decision in Cosby.

The Missouri Court of Appeals Eastern District recently addressed this very issue in the case of Gary M. Weibrecht v. Treasurer of Missouri as Custodian of Second Injury Fund, ED109591 (December 21, 2021). The court held:

[U]ntil Cosby directed that it no longer be followed—Gattenby was the only authoritative precedent on [the issue of SIF liability in post-2014 primary injury cases] and was repeatedly relied on by ALJs and the Commission. (citations omitted).

Pursuant to Gattenby, at the time this case was heard Claimant's claim was governed by $\S 287.220 .2. (footnote omitted) Therefore, evidence relating to \S 287.220 .3$ was not relevant at the time of that hearing and Claimant had no reason to present any such evidence at the hearing. After the hearing, but before the ALJ's decision Cosby abrogated Gattenby. There is no dispute that under Cosby, Claimant's claim is now governed by $\S 287.220 .3 and evidence pertaining to the requirements thereunder is now relevant. { }^{33}$

The Weibrecht court held that the substantive law change created by the Cosby holding constituted good cause to allow the employee to produce additional evidence in that case.

[^0]

[^0]: ${ }^{33}$ Gary M. Weibrecht v. Treasurer of Missouri as Custodian of Second Injury Fund, ED109591 (December 21, 2021), p. 11.

Injury Nos. 12-107092, 13-095678 & 14-046969

Employee: MaryAnn Gray

- 4 -

Psychiatric disability attributable to the employee's last injury, a patient assault on June 17, 2014, in combination with the employee's preexisting psychiatric conditions establishes her entitlement to PTD against the SIF. Delores Gonzalez, the only vocational expert to testify in this case, found the employee to be PTD. Employee's expert, Dr. Jay Liss, found the employee to be PTD exclusively because of her preexisting psychiatric conditions of anxiety, depression, and ADD, which he assessed at 50% PPD of the BAW (representing 200 weeks), in combination with PTSD attributable to her June 17, 2014, assault at work, which he assessed as 50% PPD of the BAW. The employee should not be deprived of a PTD award solely because, due to an entirely unforeseen change in the law, Dr. Liss failed to parrot the magic words "directly and substantially aggravates or accelerates the subsequent work-related injury", set out in § 287.220.3(2)(a)(iii), to describe the causal relationship between the employee's significant preexisting psychiatric disability and subsequent PTSD attributable to the employee's 2014 injury. The employee's attorney should be granted his modest request to take additional depositions only of the experts that have already testified regarding the employee's 2014 injury and to develop a full record in which each side is aware of the requirements that must be met to prevail in a SIF PTD claim under the legislature's 2014 amendments.

Because the majority finds otherwise concerning the above-discussed issues, I respectfully dissent.

Shalonn K. Curls

Shalonn K Curls, Member

Employee: MaryAnn Gray Injury,No's: 14-046969; 13-095678; 12-107092

Dependents: N/A

Employer: Hawthorne Children's Psychiatric

Hospital/State of Missouri

Additional Party: Second Injury Fund

Insurer: Missouri Office of Administration

Hearing Date: June 10, 2019

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

Unless otherwise noted, answers apply to all alleged injuries.

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? See Award.
3. Was there an accident or incident of occupational disease under the Law?

14-046969: Yes

13-095678: Yes

12-107092: No

1. Date of accident or onset of occupational disease:

14-046969: June 17, 2014

13-095678: December 14, 2013

12-107092: November 30, 2012

1. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri for all claims.
2. Was above Claimant in employ of above Employer at time of alleged accident or occupational disease? Claimant was employed by Employer for all claims.
3. Did Employer receive proper notice?

14-046969: Yes

13-095678: Yes

12-107092: No

1. Did accident or occupational disease arise out of and in the course of employment?

14-046969: Yes

13-095678: Yes

12-107092: Yes

1. Was claim for compensation filed within time required by Law?

14-046969: Yes

13-095678: Yes

12-107092: No

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

1. Was Employer insured by above Insurer? Yes, for all claims.

1. Describe what Claimant was doing and how accident occurred or occupational disease contracted:

14-046969: Claimant was punched in the face by a patient.

13-095678: Claimant was leaving the nursing office when she rounded a corner and went over a desk that was sitting there.

12-107092: Claimant was working in a cottage when an overweight patient began to act as if she was going to faint and Claimant tried to catch her.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease:

14-046969: Right side of face, right arm, and cervical spine

13-095678: Right knee, right wrist, cervical and lumbar spine

12-107092: Left shoulder, left hip and low back.

1. Nature and extent of any permanent disability: See award.

1. Compensation paid to date for temporary disability:

14-046969: $15,290.02 through November 18, 2014

13-095678: None

12-107092: None

1. Value necessary medical aid paid to date by Employer/Insurer:

14-046969: $28,150.22

13-095678: None

12-107092: None

1. Value necessary medical aid not furnished by Employer/Insurer: None

1. Claimant's average weekly wages:

14-046969: 1,096.85

1. Weekly compensation rate:

14-046969: 731.08 PTD rate; 446.85 PPD rate

13-095678: 446.85 PPD rate

12-107092: $433.58 PPD rate

1. Method wages computation: By stipulation

1. Second Injury Fund liability: 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: Daniel Keefe

On June 10, 2019, Ms. MaryAnn Gray ("Claimant"), Hawthorne Children's Psychiatric Hospital, State of Missouri ("Employer"), and the Second Injury Fund ("SIF") appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110 RSMo. The employee appeared in person and with counsel, Daniel Keefe. The Employer appeared through counsel, Assistant Attorney General, Joye Hudson. The Second Injury Fund appeared through counsel, Assistant Attorney General, Crystal L. Williams. The record was closed on June 10, 2019. At the time of hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

With respect to Injury Number 14-046969, the parties stipulated that:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was either fully insured by the insurer above or was a duly qualified self-insured employer for all claims.
2. On or about June 17, 2014, Claimant was an employee of the Employer and was working under the Workers' Compensation Act.
3. On or about June 17, 2014, Claimant sustained an accident arising out of and in the course of Claimant's employment.
4. Employer had notice of Claimant's accident.
5. Claimant's claim was filed within the time allowed by law.
6. Claimant's average weekly wage and compensation rates are as stated above.
7. Claimant's injury was medically causally related to accident.
8. Claimant was furnished medical aid by Employer in the amount stated above.
9. Claimant was paid temporary disability by Employer in the amount stated above.

With respect to Injury Number 13-095678, the parties stipulated that:

1. Employer was operating under and subject to the provisions of the Missouri Workers'

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

Compensation Act and was either fully insured by the insurer above or was a duly qualified self-insured employer for all claims.

1. On or about December 14, 2013, Claimant was an employee of the Employer and was working under the Workers' Compensation Act.

1. On or about December 14, 2013, Claimant sustained an accident arising out of and in the course of Claimant's employment.

1. Employer had notice of Claimant's accident.

1. Claimant's claim was filed within the time allowed by law.

1. Claimant's average weekly wage and compensation rates are as stated above.

1. Claimant's injury was medically causally related to accident.

1. Claimant was furnished no medical aid by Employer.

1. Claimant was paid temporary disability by Employer in the amount stated above.

With respect to Injury Number 12-107092, the parties made no stipulations.

ISSUES

The parties requested the Division to determine:

With respect to Injury Number 14-046969:

1. Whether Claimant is entitled to additional temporary total disability from the Employer after the date of November 18, 2014.

1. The liability of the Employer and/or the Second Injury Fund for permanent total disability or permanent partial disability.

With respect to Injury Number 13-095678:

1. Whether Claimant is entitled to additional temporary total disability from the Employer after the date of December 14, 2013.

1. The liability of the Employer and/or the Second Injury Fund for permanent partial disability.

With respect to Injury Number 12-107092:

1. Whether Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was either fully insured by the Insurer above or was a duly qualified self-insured employer.

1. Whether on or about the date of November 30, 2012, Claimant was an employee of the Employer and was working under the Workers' Compensation Act.

1. Whether on November 30, 2012, Claimant sustained an accident arising out of and in the course of Claimant's employment.

1. Whether Employer had notice of Claimant's accident.

1. Whether Claimant's claim was filed within the time allowed by law.

1. What was Claimant's average weekly wage and compensation rates?

1. Whether Claimant's injury was medically causally related to accident or occupational disease.

1. What amount of medical aid was furnished by Employer-Insurer for Claimant's injury?

1. What amount of temporary disability was paid by Employer-Insurer?

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

1. What amount of previously incurred medical aid has not been paid by Employer-Insurer?

1. Whether Claimant is owed mileage or other medical expenses under § 287.140 RSMo.

1. Whether Employer-Insurer is liable for Claimant's additional or future medical aid.

1. Whether Employer-Insurer owes additional TTD or TPD that is not paid.

1. When did Claimant reach maximum medical improvement for the above injury

1. Whether Claimant is Permanently Partially Disabled from the primary injury.

1. Whether the Fund is liable for either PTD or PPD.

**EXHIBITS**

Claimant testified on her own behalf and presented the following exhibits, those of which were admitted into evidence without any objections:

- Exhibit 1: 1/10/18 Deposition - Dr. David Volarich

- Exhibit 2: 1/12/18 Deposition - Dr. Jay Liss

- Exhibit 3: 11/12/17 Deposition - Delores Gonzalez

- Exhibit 4: Medical Records - ESSE Health

- Exhibit 5: Medical Records - Dr. Garry M. Vickar

- Exhibit 6: Business records - Missouri Division of Workers' Compensation

- Exhibit 7: Medical Records - SSM Workhealth

- Exhibit 8: Medical Records - MRI Partners of Chesterfield

- Exhibit 9: Medical Records - Mattingly Chiropractic

- Exhibit 10: Medical Records - Dr. Eduardo L. Garcia - Ferrer

- Exhibit 11: Medical Records - St. Louis Wellness Center

- Exhibit 12: 12/19/18 Emotional Support Animal Attestation - Dr. Eva Leven, PsyD

- Exhibit 13: Medical Records - ProRehab

- Exhibit 14: 1/5/18 Deposition - Maryann Gray

The Employer did not call any witnesses, but presented the following exhibits, those of which were admitted into evidence without objection:

- Exhibit A: Deposition of Dr. Randolph with exhibits

- Exhibit B: Deposition of Dr. Smith with exhibits

- Exhibit C: Metro Imaging records

- Exhibit D: Workhealth-Hazelwood records

- Exhibit E: SSM Physical Therapy records

- Exhibit F: St. Mary's Health Center records

- Exhibit G: Workhealth - Hazelwood records

The Second Injury Fund did not call any witnesses or present any exhibits.

The parties filed proposed awards or briefs in this matter.

Claimant was born in Ireland on April 26, 1951. She was adopted at six weeks old and has lived in Missouri since that time. She graduated high school from Firstland Academy and went to nursing school at Maryville College. She received her nursing certificate in 1976. Claimant completed approximately 30 hours towards her Bachelor's degree. Claimant worked for Christian Hospital as an RN for 30 plus years until 2011. Claimant supervised up to 10 people in this position and was responsible for scheduling and instructing.

After some time off, Claimant went to work for Hawthorne Children's Psychiatric Hospital as a charge nurse on July 3, 2012. When she was initially hired, Claimant was supposed to be over one cottage. Her responsibilities included supervising other employees (up to seven), care of the patients, responding to codes, and discipline and annual evaluations of other employees. Claimant testified after she was hired, she was frequently placed in the inpatient units, which required working with more severe psychiatric patients.

Claimant testified she was previously married, and there was one child born of that marriage. After her son was born in 1979, Claimant began having difficulty with post-partum depression. She began treating with psychiatrist, Dr. Gary Vikar, in the early 1980's and continued to treat with him until he retired. After Claimant's divorce, she became the victim of an abusive relationship and was diagnosed with PTSD.

Claimant testified because of this abuse, she was hypervigilent and non-trusting. However, she felt she had gotten it under control leading up to the primary injury. Before 2014, Claimant struggled with depression and had trouble focusing, experienced sadness, and dealt with a lot of death in her family. Claimant also struggled with anxiety before 2014. She would experience anxious thoughts, nervousness, and was easily startled. Before 2014, she was treated with medications and with counseling but never had any inpatient treatment. After Dr. Vikar retired, Claimant began treating with Dr. Garcia-Ferrar and continues to treat with her currently.

On November 30, 2012, Claimant was working in a cottage when an overweight patient began to act as if she was going to faint. Claimant tried to catch her as the patient was going down. Claimant states she hit a box on the wall and the patient threw her body on Claimant. Claimant felt pain in her left shoulder, left hip and low back. However, she asked for no treatment as she was still in her temporary period and feared she would lose her job if she asked for treatment. Claimant states she continues to have muscle spasms and pain in her shoulder and treated with her primary care physician, Dr. Plisco.

On December 14, 2013, Claimant was leaving the nursing office when she rounded a corner and went over a desk that was sitting there. She hit the desk with her right knee and caught herself with her right wrist. She was seen at WorkHealth. She was given braces for her knee and wrist. Later, her claim was denied and she received no further treatment from her employer after January 2014. Claimant states she went to a chiropractor and treated with Dr. Plisco. She continues to have weakness, soreness, and inflammation in her right wrist. She has difficulty with writing. For her right knee, Claimant testified she continues to have

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

inflammation, pain, swelling, and difficulty going up and down stairs.

Leading up to the next injury on June 17, 2014, Claimant testified in her deposition she was not having any physical problems completing her job duties. For this last injury, Claimant was in the office of a cottage removing insulin from the refrigerator for a patient when she heard a patient screaming down the hall. Claimant heard the patient say she was going to kill Claimant. There were four employees attempting to hold the patient back but the patient came into the office where Claimant was. The employees pushed the patient into the bathroom but did not get the patient restrained. Claimant states she was punched on the right side of the face and she raised her right arm to prevent further hits to her face.

Claimant was sent to the emergency room and then to Workhealth. She was later referred to Dr. Randolph. An MRI of Claimant's neck was performed on October 6, 2014, and revealed 2 mm of anterolisthesis of C4 on C5, which was likely degenerative, but there was no significant disc profile abnormality, central canal stenosis, or neuroforaminal exit stenosis. Dr. Randolph released her from care in November 2014. In her deposition, Claimant stated she never returned to work after the injury on June 17, 2014. At hearing, Claimant states she continued to work until June 2015, but stated she never returned to full duty after the last injury.

Claimant was then seen by Dr. Smith, a psychiatrist. On February 5, 2016, Dr. Smith released Claimant at maximum medical improvement but did indicate that Claimant should be restricted from working in the inpatient unit.

Claimant testified she continues to have night terrors and cries in her sleep. She is hypervigilant and she believes her psychiatric symptoms are more restrictive on her functioning than her physical complaints. Claimant indicated she enjoyed her work as a charge nurse and would still like to work. She indicated she is unable to lift with her right arm and cannot stand for long periods of time, but her psychological condition is her biggest limitation.

EXPERT TESTIMONY

Dr. Randolph

Dr. Randolph was deposed on February 1, 2019. He testified he first saw Claimant on September 2, 2014. He diagnosed her with contusions to the face and a cervical sprain as a result of the 2014 injury. He last saw her on November 3, 2014. He released Claimant with no restrictions and assessed no permanent disability as a result of this work injury. On September 2, 2014, Dr. Randolph performed trigger point injections to the left and right trapezius muscle groups, and prescribed physical therapy. Ex. 2 of Ex. A. Claimant followed up with Dr. Randolph on September 18, 2014, at which time he performed a second left trapezius trigger point injection, and he ordered a cervical MRI to rule out a disc herniation. On October 9, 2014, Dr. Randolph noted the cervical MRI showed no acute changes, although mild to moderate degenerative changes were noted. He also noted that, from a physical standpoint, Claimant was able to return to work full duty.

Claimant last treated with Dr. Randolph on November 3, 2014. He noted Claimant had full active range of motion of the cervical spine with only slight discomfort on the extreme of left

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

rotation and no radiating pain was noted with neck movement. Dr. Randolph placed the claimant at MMI, advised her to continue her exercise program, and to watch body mechanics when performing activities.

Dr. Smith

Dr. Stacey Smith, a board certified physician, with specialties in neurology and psychiatry, was deposed on December 13, 2018. She first saw Claimant on September 11, 2014 for a psychiatric independent medical evaluation. She last saw Claimant on February 15, 2015. At that time, she released Claimant with restrictions of 8-hour shifts, five days per week and no inpatient unit work. She recommended Claimant change jobs. She provided ratings of 15% permanent partial disability as a result of Claimant's pre-existing Somatization Disorder and 0% permanent partial disability as a result of the work injury. Dr. Smith first evaluated the claimant on September 11, 2014, at which time an extended interview took place. Ex. B of Ex. B. Before her June 17, 2014 accident, the claimant had a thirty-year history of treating with psychiatrist Dr. Gary Vickar, with Wellbutrin, Paxil, and Zoloft prescribed at various times, as well as Xanax and clonazepam. Ex. B of Ex. B.

Dr. Smith noted, before her June 17, 2014 accident, the claimant was prescribed multiple antidepressants, multiple sedative-hypnotics, muscle relaxers, and pain pills. Pg. 12 Ex. B of Ex. B. Dr. Smith also opined the combined simultaneous dosage of benzodiazepines prescribed by Dr. Vickar was not low; rather it was generous and was continued over a number of years. Id.

Dr. Smith diagnosed the claimant with pre-existing Somatization Disorder, and opined that her reaction to the events of June 17, 2014 was consistent with this diagnosis. Pg. 18-19 Ex. B of Ex. B. The claimant had four psychiatric diagnoses before June 17, 2014, which Dr. Smith felt was important due to the sheer number of complaints. Ex. B pg. 11-13. The claimant also reported multiple extended leaves of absence from work and abusive relationships before her June 17, 2014. Ex. B pg. 14-15.

Dr. Smith continued to provide authorized treatment for the claimant, including adjusting her medications. Dr. Smith felt the claimant was improving with this treatment. Ex. B pg. 17-18. She opined, "When I look at the years of psychiatric treatment she had, the years of combination medications and how she looked and felt when I saw her, my opinion was that she couldn't have been that much different or any worse than she would have presented in previous years. She was improving." Id.

Dr. Smith returned the claimant to full duty, half days on the night shift on October 27, 2014. Ex. B pg. 16-17. She stated, "I really think she was a good nurse and she's been doing that a long time, so I think she was interesting because I think she actually functions better at work than she does in her personal life. So I thought it would be therapeutic." Id. at 18.

When the claimant followed up with Dr. Smith on November 10, 2014, they discussed the fact that Dr. Vickar, who had been the claimant's psychiatrist for thirty years, was retiring. Ex. B pg. 18-19. Dr. Smith opined that this was a significant event for a lifetime patient to have to go

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

through and she was not surprised that the claimant would have some deterioration or flare of complaints around this time. *Id.* at 19.

The claimant last treated with Dr. Smith on February 5, 2015, at which time Dr. Smith placed her at MMI, Ex. B pg. 20-21, with restrictions for 8-hour shifts, five days per week, no work in the inpatient unit. Ex. B of Ex. B. Dr. Smith felt they made progress, especially tackling her year after year use of sedatives. *Id.* She opined that she provided the restrictions because she felt having the claimant work more than 40 hours per week was inviting trouble. Ex. B pg. 21.

On December 2, 2016, Dr. Smith provided a rating for the claimant. She opined that the claimant had 15% permanent partial disability for the pre-existing Somatization Disorder and 0% for the June 17, 2014, accident. Ex. B pg. 24. She testified she felt the claimant had no permanent partial disability from the June 17, 2014, accident because the claimant was back to working full time, had no specific complaints when she came in, was happy with her medicine, and reported being a star nurse. *Id.* Dr. Smith opined that she was at her psychiatric baseline.

Dr. Smith further went to state:

> "In other words, people who have somatization disorder and this type of personality makeup, they are reactive by nature. So the idea that she could be out of sorts or feeling a little more anxious or have similar mood complaints around that time, this is what you would expect with an individual with somatization disorder. But, I do not think she developed an additional psychiatric disorder as a result of that event. I feel like it was just reflective of what one would expect with an individual of this disorder."

The Court notes further, Dr. Smith recognized Claimant was angry at Employer, and a possible contributor to her ideations may have some financial recompense. Ex. B, pgs 63-64.

Q: What do you mean when you say that you believed that secondary gain is contributing here on page 2 of your October 27, 2014 report?

A: I felt that there was some contributor to the idea that there might be some financial recompense at some point. It's also because -- especially because she was so angry at her employer and -- so I just want to stress that.

Q: The paragraph says, "This individual had pre-injury- -pre-injury/pre-event psychiatric difficulties that are long standing and well documented. I do not believe that her current presentation is appreciably different from her pre-event state. I also believe secondary gain is contributing here." ((As read.) Contributing to what?

A: To the claim. Just contributing. See, one of the things we know about her is that she has been granted leave of absence at various times over her course, so the idea that she would be able to interface with a physician and then be granted time off—I'm not saying—I'm not offering opinion about whether that was justified at the time, but she is not a stranger to that circumstances, so I thought it was—a contributing factor.

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

Q: Okay. And how confident are you that your diagnosis of Somatization Disorder is the correct one?

A: I am more confident than to a reasonable degree of medical certainty. I would say it's more like clear and convincing.

The claimant's attorney sent her to see Dr. David Volarich for her physical complaints from these three alleged accidents, and to Dr. Jay Liss for her psychological complaints as a result of the June 17, 2014 accident. Both Dr. Volarich and Dr. Liss saw the claimant one time and provided no treatment for the claimant. Ex. 1 pg. 18; Ex. 2 pg. 22.

Dr. Volarich

Dr. Volarich examined Claimant for an IME at the request of Claimant's attorney and was deposed on January 10, 2018. For the 2012 injury, Dr. Volarich diagnosed Claimant with a lumbar right hip girdle contusion and right scapular contusion. For the 2013 injury, Dr. Volarich diagnosed a cervical bilateral shoulder girdle strain with moderately severe myofascial pain, a right wrist sprain/strain, a right knee patellofemoral syndrome and aggravation of lumbar syndrome. For the 2014 injury, Dr. Volarich opines that Claimant sustained left facial contusion, right forearm contusion, and aggravation of cervical and left shoulder girdle myofascial pain syndrome.

For all three of these injuries, Dr. Volarich opines the work incidents were the prevailing factor in causing the injuries and disabilities that he assessed.

He provided ratings as follows: 10% permanent partial disability to the right shoulder and 10% permanent partial disability of the lumbar spine (2012 injury); 20% permanent partial disability of the cervical spine, 5% permanent partial disability of the lumbar spine, and 15% permanent partial disability of the right knee (2013 injury); and 5% permanent partial disability of the cervical spine (2014 injury). Dr. Volarich provided no ratings for any other pre-existing conditions as they all resolved and he deferred to psychiatry for her psychiatric condition.

Dr. Volarich provided restrictions for the spine as follows: avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing, and other similar tasks to as needed; should not handle weights more than 15 to 20 pounds and limit that to an occasional basis; no lifting over her head or away from her body; avoid staying in a fixed position for more than 30-45 minutes, including both sitting and standing and change positions frequently to maximize comfort and rest when needed. For the shoulders, Dr. Volarich recommended Claimant limit overhead use of her arms or prolonged use of the arms away from her body; she should limit pushing, pulling, and traction maneuvers with the upper extremities and she can handle weights to tolerance with her arms dependent. For the lower extremities, Dr. Volarich recommended Claimant limit repetitive stooping, squatting, crawling, kneeling, pivoting, climbing and all impact maneuvers; should be cautious navigating uneven terrain, slopes, steps and ladders; and handle weight and bear weight with standing and walking to tolerance.

10

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

Dr. Volarich agreed Claimant did not seek any treatment after the November 2012 work incident.

Dr. Liss

Dr. Liss conducted a psychiatric evaluation of Claimant at the request of her attorney and was deposed on January 12, 2018. He diagnoses PTSD, with anxiety and depression as a result of the 2014 work injury. He rates this injury as 50% body as a whole. He diagnosed Claimant with pre-existing depression, anxiety and attention deficit disorder (ADD) and rated these conditions as 50% body as a whole. He opines that Claimant is unable to work due to her pre-existing and primary disabilities.

The Court notes, evidence adduced on cross-examination showed Dr. Liss admitted he was first made aware of Claimant's prior abusive relationship and Claimant's extended leaves of absences from her employer before 2014, at his deposition. This indicates to the Court he was not aware of it at the time that he wrote his report and assessed permanent disability in this case.

Delores Gonzalez

Claimant obtained the vocational opinion of Delores Gonzalez, who was deposed on November 22, 2017. Ms. Gonzalez concludes Claimant is permanently and totally disabled as a result of all three work injuries and the pre-existing psychological conditions. Ms. Gonzalez thought Claimant's most significant and limiting issue was her psychological condition.

RULINGS OF LAW

Based upon a comprehensive review of the aforementioned evidence, including testimony, expert medical opinions and depositions, medical records, other documentary evidence, my personal observations of Claimant at hearing, and the applicable laws of the State of Missouri, I find:

Claimant bears the burden of proof on all essential elements of her Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.

Injury #12-107092:

The evidence shows the Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a duly qualified self-insured employer on the date of November 30, 2012. Further, Claimant was an employee of the Employer and was working under the Workers' Compensation Act on that same date.

11

MNKOI 0000811699

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

Based on Claimant's testimony, on November 30, 2012, a patient acted as if she was going to faint and Claimant tried to catch her to keep her from hitting the ground. Claimant states she hit a box on the wall and the patient threw her body on Claimant. Claimant felt pain in her left shoulder, left hip and low back.

Claimant must prove her injury was medically causally related to the accident that occurred on November 30, 2012. Causation "must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause." *Williams v. DePaul Health Ctr., 996 S.W.2d 619, 631 (Mo. Ct. App. 1999)* overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003) (citations omitted).

In this case, there is no clear evidence showing a causal relationship between Claimant's current complaints and this accident that occurred in November 2012. She had no medical treatment or testing done after this injury and continued to work full-time for her Employer. She testified she did not ask for treatment from her Employer after this injury.

Dr. Volarich diagnosed Claimant with a lumbar right hip girdle contusion and right scapular contusion for the 2012 injury and provided ratings. However, there is no objective medical evidence to support this finding as Claimant had no treatment, diagnoses or testing done at the time of injury. Dr. Volarich's examination was completed approximately three years after this injury.

Therefore, the evidence supports no causation has been established by clear medical evidence showing a cause and effect relationship between Claimant's complained of condition and the asserted cause or the accident that occurred on November 30, 2012. As such, all other issues are moot.

**Injury #13-095678:**

For this claim, the issues to be decided are whether Claimant is entitled to additional temporary total disability from the Employer after the date of December 14, 2013, and the liability of the Employer and/or the Second Injury Fund for permanent partial disability.

Under RSMo. § 287.190.6, "permanent partial disability" means a disability that is permanent in nature and partial in degree. "The Claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004)*. Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973)*. Expert testimony may be required when there are complicated medical issues. *Id.* at 704.

In cases such as this one where the Second Injury Fund is involved, the Court must also look to RSMo. § 287.220.2 for the appropriate apportionment of benefits under the statute. In order to recover from the Fund, Claimant must prove a pre-existing permanent partial disability, that existed at the time of the primary injury, and which was of such seriousness as to constitute

12

MNKOI 0000912577

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

a hindrance or obstacle to employment or reemployment should employee become unemployed. *Messex v. Sachs Electric Co.*, 989 S.W.2d 206 (Mo. App. E.D. 1999) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). In order to prove SIF liability, the pre-existing permanent partial disability must combine with the primary disability in one of two ways. First, the disabilities combine to create permanent total disability, or second, the disabilities combine to create a greater overall disability than the simple sum of the disabilities when added together.

Several decisions have addressed the issue of "synergy" and what is required to prove this element. The Court of Appeals addressed this in the *Winingear v. Treasurer* case. In this case, the findings of the ALJ were discussed as follows: "[Winingear] did not testify as to a synergistic effect: at least he did not do so clearly and convincingly. [3] ... Although [Dr. Cohen's] report contains his opinion that there is a greater overall disability, Dr. Cohen does not explain how the conditions or disabilities combined to create the greater overall disability. Moreover, [Winingear]'s testimony does not support Dr. Cohen's opinion that the primary injury combined synergistically with the pre-existing injury. [Winingear] did not testify to an enhanced or synergistic effect, and the medical records (other than those of Dr. Cohen) do not reflect that there was such an effect." *Winingear v. Treasurer of State -Custodian 2nd Injury Fund*, 474 S.W.3d 203, 208-09 (Mo. Ct. App. 2015). Therefore, the Court upheld the decision of the ALJ stating there was not sufficient evidence to support an award against the Second Injury Fund.

In the LIRC decision of *Kimberly Replogle v. Mexico School District, Inj. No. 06-124708*, the Commission again reviewed this issue and discussed the requirements as stated in the *Winingear* case. The Commission further added, "[w]hile it would certainly *seem* that employee's preexisting bilateral knee disability in particular might be susceptible to a synergistic interaction with employee's primary low back injury, we cannot render an award against the Second Injury Fund based purely on our own surmise or speculation."

In this case, Claimant provided no testimony in regards to the combination of this injury with her pre-existing conditions. Further, Dr. Volarich's report does not clearly or connectively address the synergistic combination. Therefore, Claimant has failed to meet her burden that this injury combines synergistically with her pre-existing conditions to create a greater overall disability than the simple sum of the disabilities when added together.

**Injury #14-046969:**

For this claim, the issues to be decided are whether Claimant is entitled to additional temporary total disability from the Employer after the date of November 18, 2014, and the liability of the Employer and/or the Second Injury Fund for permanent total disability or permanent partial disability.

Section 287.220, which governs Second Injury Fund liability, was amended effective January 1, 2014. These amendments changed the structure of Fund liability for both permanent partial and permanent total disability benefits. Claimant has failed to meet her burden of proof under the law as amended.

13

Employee: MaryAnn Gray

Injury #: 14,046969; 13-095678; 12-107092

Section 287.220.3 states, "All claims against the second injury fund for injuries occurring after January 1, 2014...shall be compensated as provided in this subsection." In the recent Missouri Supreme Court decision of *Cosby v. Treasurer* as *Custodian of the Second Injury Fund, SC97317*, issued on June 25, 2019, the Supreme Court stated, "Section 287.220.3 applies to all PTD or PPD claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014." (*Cosby* at p. 7). In a footnote the Court went on to analyze the prior case of *Gattenby v. Treasurer*, 516 S.W.3d 859, which was decided by the Western District Court of Appeals. In *Gattenby*, the Court of Appeals stated that if there were any pre-existing conditions before January 1, 2014, Section 287.220.2 would apply. However, the Supreme Court has rejected this analysis and stated that "[n]owhere does section 287.220.3(2) explicitly or implicitly provide an exception for employees whose previous injuries resulting in disability occurred before January 1, 2014...Accordingly, *Gattenby* should no longer be followed to the extent it is inconsistent with this opinion." *Cosby* at p. 8, fn 5.

Therefore, Section 287.220.3 would apply to this claim as the date of the primary injury is after January 1, 2014. This section provides that permanent total disability against the SIF is compensable if the pre-existing conditions meet certain requirements, which is outlined in the statute as categories. First, the pre-existing disability must equal fifty weeks of compensation. *RSMo. §287.220.3(2)(a)*. Second, not only must the pre-existing disability equal fifty weeks of compensation, the disability must also fall into one of four categories:

i. An injury as a direct result of active military service;

ii. An injury as a direct result of a compensable injury as defined in 287.020;

iii. 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;

iv. A pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, where there is a subsequent compensable work-related injury as set forth in subsection b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.

§287.220.3(2)(a)(i-iv).

In this case, Claimant was not in the military, so the first category would not apply. The second category allows for pre-existing disabilities that are a direct result of a compensable injury. Injuries #13-095678 and #12-107092 are currently pending and will be decided in this Award. It is unclear whether either of these claims could be considered under the second category, as it will depend on the assessment of disability, if any. However, Claimant also does not have any expert evidence that evaluates if either of those claims would be sufficient to combine with the primary injury to cause total disability.

Claimant's pre-existing psychological condition might fall into the third category, but Claimant has not presented any evidence to support that condition would fall into that category or that it would be sufficient when combined with the primary injury to cause total disability. The Court finds the testimony of Dr. Smith to be much more persuasive and comprehensive than

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the testimony of Dr. Liss. Dr. Liss saw Claimant one time and only for a brief period. Additionally, the Court finds Claimant's testimony not credible, especially in light of her personal disposition toward Employer, her new duties and responsibilities and the substantial and well voiced complaints by Claimant of her working conditions.

Based on the evidence referenced above, including the medical treatment records, the expert opinions, as well as based on my personal observations of Claimant at hearing, I find that Claimant has failed to show she is permanently and totally disabled as a result in whole or in part to the work-related incident giving rise to the Claim as well as pursuant to the requirements of the new law.

Injury Numbers 14-046969, 13-095678 \& 12-107092:

Claimant has failed to meet her burden of showing a causal connection between Claimant's current condition and her work accident in Injury \#12-107092. For Injury \#13095678, Claimant has failed to meet her burden of showing the injury combines synergistically with her pre-existing conditions to create a greater overall disability than the simple sum of the disabilities when added together. For Injury \#14-046969, Claimant has failed to meet her burden to show she is permanently and totally disabled pursuant to the requirements of the law. Therefore, no award of benefits is awarded in this matter.

I certify that on 9-12-19

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 $\qquad$


Made by:

Marvin O. Teer, Jr.

Administrative Law Judge

Division of Workers' Compensation