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

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[^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

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[^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 condition