Tina Danner v. Missouri Department of Public Safety

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The award and decision of Administrative Law Judge Ryan S. Asbridge, issued December 16, 2021, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

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

Given at Jefferson City, State of Missouri, this ___ 13th ___ day of September 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Kathryn Swan, Member

Attest:

Kathryn Swan

Secretary

I disagree with the administrative law judge's denial of Second Injury Fund (SIF) liability on a finding that the employee failed to establish that she sustained a work injury on July 17, 2014, separate and distinct from an earlier June 4, 2014, work injury.

In this case, the administrative law judge (ALJ) found that the employee is clearly permanently and totally disabled (PTD) based on her age, experience, transferable skills, and current work restrictions. There were no conflicting medical opinions provided by the Second Injury Fund. The employee's testimony was not impeached. The ALJ specifically found the employee was "a credible witness as her demeanor was clear and direct, and her testimony was consistent with the Exhibits in evidence." ${ }^{1}$

The ALJ's findings regarding whether an accident took place on July 14, 2014, include no analysis of the medical experts' credibility. He acknowledged that the employee settled two claims for injuries in June and July of 2014 but found "the evidence and testimony in the case does not indicate this conclusion." ${ }^{2}$ The ALJ seemingly based this opinion entirely on Dr. William Hopkins' statement, "I believe that her low back injury on July 17, 2014, was a continuation of her first injury just over a month prior." ${ }^{3}$ There is no further discussion by the ALJ of Dr. Hopkins' opinions.

Also, the ALJ stated that it is "consistent with the expert medical testimony of Dr. [David] Robson and Dr. [Alexander] Bailey who both opine that the 7/17/14 incident was an aggravation or continuation of the June 2014 injury." ${ }^{4}$ This misstates the evidence. Dr. Robson noted, "[The employee] attempted to return to work on July $17^{\text {th }}$ where she reinjured herself lifting a patient (emphasis added)."5 A "reinjury" is defined as "an injury which follows a previous injury to the same place in the body." ${ }^{6}$ A "reinjury" is a separate incident and a second injury to the low back is one that "follows a previous injury to the same place in the body."

"Accident" is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the same time objective symptoms of an injury caused by a specific event during a single work shift." §287.020(2) RSMo. The ALJ in this case found the employee credible. The employee testified to a second unexpected and traumatic event. She was referred to another physician and released by Healthworks on July 9, 2014. There was a separate occurrence that produced new symptoms as outlined in her pain chart, where leg complaints surfaced.

The employee testified to objective symptoms occurring at the time of her July 14, 2014, injury. The employer was not present to deny the occurrence of an accident. The SIF, present at the hearing, did no cross-examination to impeach the witness regarding the occurrence of a second event. Medical records show another complaint of an accident at this time and a return to the doctor who had released her.

[^0]

[^0]: ${ }^{1} Award, p. 10.

{ }^{2} \mathrm{Id}.

{ }^{3} Transcript, p. 1979.

{ }^{4} Award, p. 10.

{ }^{5} Transcript, p. 126.

{ }^{6} Collins English Dictionary, Complete and Unabridged, 12 { }^{\text {th }}$ Edition 2014 © HarperCollins Publishers, 2014. https://www.thefreedictionary.com/reinjury

The ALJ wrote in his award, "Dr. Hopkins opined that Claimant is PTD as a combination of 'the work injury on or about June 4, 2014 and July 17, 2014 and the disabilities attributable to all conditions pre-existing."' He stated that the employee's testimony and that of Dr. Hopkins and vocational expert Kristine Skahan, "make clear . . . that she is permanently and totally disabled." ${ }^{8}$ In the ALJ's assessment of whether the accident caused the disability, he wrote:

Considering all of the medical evidence, along with Ms. Danner's testimony, the Court finds that, based upon the overwhelming majority of the expert medical evidence as described above combined with Claimant's credible testimony, Claimant failed to meet her burden that she suffered a new and distinct work injury of 07/17/2014. The court finds that the 6/4/2014 work injury in isolation was the prevailing factor causing Claimant's medical condition and disability. ${ }^{9}$

The ALJ found the employee credible, along with the experts, yet he ignored uncontradicted testimony and records indicating a second injury. The ALJ failed to mention other evidence such as the change in symptoms as outlined in the original treatment notes and noted in the physical therapy records. Again, the ALJ also relied on one sentence by Dr. Hopkins where he states that "her low back injury on July 17, 2014, was a continuation of her first injury just over one month prior."10

The ALJ also stressed Dr. Robson's opinion who stated that the June 4, 2014 injury was the prevailing factor in the employee's need for treatment. However, Dr. Robson did not address a second injury at all. It is certainly possible for Dr. Robson to believe that the June 4, 2014 injury was the prevailing factor in the employee's need for treatment and that the July 17, 2014 injury was also the prevailing factor in the employee's need for treatment. Dr. Robson did not give an opinion at all on the second injury. The ALJ found Dr. Robson to be credible, yet ignored the lack of information or opinion provided by Dr. Robson.

When the ALJ addressed the issue of SIF liability, he simply stated:

As described above, the Court finds that Claimant did not suffer a new and distinct work injury on 7/17/2014 and that all of Claimant's injuries and resulting disability are the result of the work injury sustained on 6/4/2014. Therefore the Court finds that there was no work injury subsequent to 6/4/2014 that combined with preexisting disability to result in Claimant's permanent total disability. Therefore, the Court finds that Claimant has failed to meet her burden that the Second Injury Fund is liable to her for permanent total disability benefits. ${ }^{11}$

[^0]

[^0]: ${ }^{7} Award, p. 7.

{ }^{8} Id., p. 10.

{ }^{9} \mathrm{Id}.

{ }^{10} Transcript, p. 1979.

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

When the ALJ references in his award, "As described above," the reader has little insight into what exactly the tribunal is using to draw this conclusion. The ALJ seems to insinuate that he is basing this opinion on the one expressed earlier in his award when he addressed Issue Number 2, where he stated:

Considering all of the medical evidence, along with Ms. Danner's testimony, the Court finds that, based on the overwhelming majority of the expert medical evidence as described above combined with Claimant's credible testimony, Claimant failed to meet her burden that she suffered a new and distinct work injury on 7/17/2014. The Court finds that the 6/4/2014 work injury in isolation was the prevailing factor causing Claimant's medical condition and disability. ${ }^{12}$

However, as noted, this is simply noted in one paragraph on page ten where the ALJ focused on one sentence from Dr. Hopkins and one opinion from Dr. Robson, who was silent on the issue of a second injury. Further, he noted that Dr. Bailey found that the July 17, 2014 incident was "an aggravation or continuation of the 6/4/2014 injury."13 However, Dr. Bailey expressly stated that there was an incident on the latter date. Further, just because an incident is an aggravation or continuation of a previous injury does not mean that a second injury did not occur.

"Aggravation" is defined as "an increase in intensity, seriousness, or severity; act of making worse."14

No factfinder can know what the trajectory of the employee's symptoms and problems would have been had the second injury not occurred. But there is no contradicting evidence that an act occurred, an act that worsened what she had before, a second injury that combined with the first injury to meet the criteria required to establish SIF liability. ${ }^{15}$ There was no MRI between the two injuries. However, there was a second accident by injury, and this second injury, combined with the first one, clearly were the prevailing factors leading to the employee's condition and disability.

The employee's original treating physicians' medical records show a change in symptoms after the second incident. On June 5, 2014, the day after the first injury, Dr. Judith Tharp of U. S, HealthWorks Medical Group examined the employee and stated that the employee had back pain with no radiation. Dr. Tharp