Tina Danner v. Missouri Department of Public Safety

- 2 -

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 examined the employee and found

"[There is] some tenderness to percussion over the lumbar spinous process. There is moderate lumbar paraspinous muscle spasm most notable on the left. There is no sacroiliac joint tenderness. Active range of motion of the lumbar spine is within the functional limits in all planes

[^0]

[^0]: ${ }^{12} Award, p. 10.

{ }^{13} \mathrm{Id}.

{ }^{14} American Heritage { }^{\circledR}$ Dictionary of the English Language, Fifth Edition. Copyright © 2016 by Houghton Mifflin Harcourt Publishing Company. https://www.thefreedictionary.com/aggravation

${ }^{15}$ See 287.220.3 RSMo.

With pain at all end ranges. Toe and heel walking normal. Deep tendon reflexes are symmetrical and brisk."16

Dr. Tharp diagnosed the employee with a lumbar strain referable to the injury of June 4, 2014, and prescribed medication.

On June 9, 2014, the employee again visited U. S. HealthWorks and consulted with Dr. Bern Boyett. At that visit, the employee told Dr. Boyett that physical therapy had not yet been approved. On examination, he found "no lower extremity sciatica." ${ }^{17} \mathrm{He}$ stated that the employee was able to "transition from standing to sitting on the exam table without my assistance." ${ }^{18}$ Dr. Boyett continued to diagnose the employee with a strain. He next saw the employee on June 16, 2016. On that date, the employee reported she had still not received approval for physical therapy. Dr. Boyett's examination showed no areas of spasm and a negative straight leg test bilaterally. He concluded, "[I]t does not appear to involve the disc and the patient's request for an MRI is inappropriate and would be unnecessary at this time."19

On June 23, 2014, Dr. Boyett stated, "the patient is alert and fully oriented, and appears in only mild resting back pain and discomfort." ${ }^{20}$ Also, he noted

"[N]o sciatica symptoms on either right or left straight leg test. . . . The patient had no palpable tenderness on palpation of the lower back or paraspinous either in paraspinous or vertebral spinous regions. Sacroiliac joint testing was also negative bilaterally. Sciatic notch testing bilaterally was also negative. No active spasm was noted. There is no spine deformity."21

Dr. Boyett concluded, "Today's exam was rather benign and not supportive of sciatica."22

On July 3, 2014, the employee saw Dr. Boyett again. On that date, he noted that the employee indicated, "Once she is on her feet, she does reasonably well, but she complains of pain when she has to transition from sitting to standing positions."23 There were still no complaints of lower extremity issues and on physical examination, the employee had a negative straight leg test on both sides. On July $9^{\text {th }}$, Dr. Boyett identified a "mild back strain" and again noted no radicular or sciatic symptoms. ${ }^{24} \mathrm{He}$ released her to full duty.

It was not until the employee's physical therapy notes of August 25, 2014, that the record shows any mention of pain outside of the lower back. At that time, the employee

[^0]

[^0]: ${ }^{16} Transcript, p. 1342.

{ }^{17} Id., p. 1345.

{ }^{18} Transcript, p. 1345.

{ }^{19} Id., p. 1348.

{ }^{20} Id., p. 1351.

{ }^{21} Id.

{ }^{22} Id.

{ }^{23} Id., p. 1353.

{ }^{24}$ Id., p. 1357.

began complaining of pain "located in the center of the low back and spreading across to bilateral hips . . . has intermittent pain down the L LE over the posterior, lateral thigh." ${ }^{25}$ It was also at this time that the employee describes a "burning in the back, . . . a dull aching pain and numbness in LLE down [the] back and outer thigh." ${ }^{26}$ A pain diagram marked by the employee on August 25, 2014, indicated the same thing. The ongoing physical therapy notes showed some changes in her low back pain but indicated the employee was getting no relief from her left lower extremity symptoms. These lower extremity complaints were not documented before the second accident in July 2014.

The ALJ also opined that the opinion of Dr. Robson is in line with that of Dr. Hopkins. This is inaccurate. Page one of Dr. Hopkins' report noted two separate accidents, one on June 4-2014, and the other on or about July 17, 2014. He also wrote, "as a result of her above injuries that she has constant low back pain with loss of back motion with pain in her left leg to the foot with weakness in her left leg (emphasis added)."27 Dr. Hopkins' uses the word "injuries," not "injury." He further wrote, "Ms. Danner indicates as a result of her two previous injuries that she has difficulty sitting and can sit for about 30 minutes and she can stand for approximately 15 minutes (emphasis added)." ${ }^{28}$

Dr. Hopkins' stated:

Ms. Danner had injuries to her lumbar spine (emphasis added). Her first reported work injury was on or about June 4, 2014, performing the duties of a certified nursing assistant for which she was evaluated and treated in association with x-rays and physical therapy with persistent symptoms.

Her second injury, with an additional reported injury to the same area on or about July 17, 2014 while performing the duties of a CAN [sic] lifting a patient. ${ }^{29}$

He concluded, "These accidents on or about June 4, 2014 and July 17, 2014 are the direct and prevailing factor for her current medical condition, medical treatment and disabilities (emphasis added)."30

Dr. Hopkins also concluded that:

When one combines the prior permanent partial disability involving her cervical spine with the additional permanent partial disability from the work injury of June 4, 2014 and July 17, 2014, a significant synergism of the combined rises above the simple arithmetic sum of the separate disabilities and there is a synergism of 15 %. . . ${ }^{31}$

[^0]

[^0]: ${ }^{25} Id., p. 108.

{ }^{26} \mathrm{Id}.

{ }^{27} Transcript, p. 1966.

{ }^{28} Id., p. 1967.

{ }^{29} Id., p. 1979.

{ }^{30} \mathrm{Id}.

{ }^{31}$ Id., p. 1981.

Dr. Hopkins further testified in his deposition that the employee's disability was from both the June and July injuries, that her restrictions stemmed from both injuries, and that she was at maximum medical improvement from both.

Dr. Hopkins clarified that his ratings referable to the injuries of June and July 2014 were 20\% of the body as a whole referable to the back as it related to the June 4, 2014 injury and 30 % of the body as a whole referable to the back as it related to the July 17, 2014 injury. He also felt that there was 5\% preexisting disability due to "significant structural or degenerative changes in [her] spine without symptoms."32 In his deposition testimony, Dr. Hopkins clarified that he was able to attribute a certain percentage of disability to the June injury and a certain amount of disability to the July injury. ${ }^{33}$

Dr. Hopkins clarified that the employee's inability to compete in the open labor market was based on both injuries to the back, along with the injury to the neck from the past "but primarily from her low back."34

The ALJ presented no discussion regarding the fact that the employee had an injury on June 4, 2014, that was treated conservatively with medications only on June 5, 2014, was on light duty for a period of time, and was only back to full duty for a few days when the second injury took place. He also ignored the fact that there were no MRI or other diagnostic tests done before the July 2014 injury. There is no medical evidence to support his finding that there was only one injury in June 2014.

For the above-stated reasons, the ALJ erred in failing to reach the merits of the employee's SIF claim, based on a finding that she suffered no work injury on July 17, 2014.

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{32} Id., p. 1919.

{ }^{33} Id., p. 1938.

{ }^{34}$ Id., p. 1926.

Employee: Tina Danner

Injury Number: 14-050921

Dependents: N/A

Employer: State of Missouri, Missouri Department of Public Safety (Settled)

Insurer: CARO (Settled)

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Date: August 24, 2021

Checked by: RSA/pke

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged to be $7 / 17 / 2014$
5. State location where accident occurred or occupational disease was contracted: Cameron, DeKalb County, Missouri.
6. Was above Employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? N/A
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured her low back transferring a patient back onto a mattress on the floor.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

1. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Body as a whole for low back

1. Nature and extent of any permanent disability: Claimant is permanently and total disabled, but Second Injury Fund is not liable

1. Compensation paid to date for temporary disability: N/A

1. Value of temporary total disability benefits not paid by employer/insurer: N/A

1. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 481.72

1. Weekly compensation rate: 321.15 TTD/PTD; $321.15 PPD

1. Method wages computation: Stipulation

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

The above-referenced workers' compensation claim was heard before Administrative Law Judge Asbridge on August 24, 2021. The employee, Tina Danner (Claimant or Employee) appeared personally and through her attorney, Christine Kiefer. The Treasurer of the State of Missouri as Custodian of the Second Injury Fund (Fund) appeared through Assistant Attorney General Erika Eliason. Claimant had previously settled her claim with the Employer and the Insurer.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. Prior to this Final Hearing, settlement was reached between the Employer State of Missouri and the Claimant;
2. That the employer, Missouri Department of Public Safety (Employer), was an employer operating subject to the provisions of the Missouri Workers' Compensation law on July 17, 2014;
3. That Tina Danner was an Employee of Employer Missouri Department of Public Safety and she was working subject to the Missouri Workers' Compensation law in the City of Cameron, DeKalb County, Missouri;
4. The above-referenced accident occurred in DeKalb County, Missouri and that venue is proper in St. Joseph;
5. The parties stipulated to have the Final Hearing held at the Missouri Division of Worker's Compensation's Kansas City office.
6. The Employee sustained an accident arising out of and in the course of her employment;
7. The Employee notified the Employer of her injuries as required by law and his claim was filed within the time allowed by law;
8. The Employer paid 0.00 in medical care, of 0.00 in temporary disability, and $37,500.00 in permanent partial disability benefits based on 29.2% permanent partial disability to the body as a whole;

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

ISSUES

1. Whether the employee suffered any disability and, if so, the nature and extent of the employee's disability and whether the employee is permanently and totally disabled.
2. Whether the alleged accident or occupational disease caused the disability the employee claims.
3. Whether the Second Injury Fund is liable to Employee.
4. Determine the Claimant's date of Maximum Medical Improvement

EVIDENCE PRESENTED

Claimant Tina Danner testified at the Hearing in support of her claim. In addition, Claimant offered for admission the following exhibits:

1. Cameron Regional Medical Center
2. Arc Physical Therapy
3. Comprehensive Spine Care
4. North Kansas City Hospital
5. North Kansas City Hospital
6. Northland Imaging
7. Precision Spine and Orthopedic Specialists
8. Prime Care Consulting
9. Professional Imaging
10. The Kansas City Neurosurgery Group
11. US HealthWorks
12. Centerpoint Medical Center
13. Cameron Regional Medical Center
14. Dr. Cantrell
15. Dr. Montone
16. Precision Spine and Orthopedic Specialist
17. Dr. Cantrell
18. Dr. Reintjes
19. Division of Workers' Compensation Records
20. Lawson Family Practice
21. Jackson County Neurosurgery
22. Northland Pain Consultants
23. Spine and Scoliosis Surgery Inc.
24. Deposition and Report- Dr. Hopkins 11-6-2020
25. Dr. Robson
26. Deposition of Kristine Skahan
27. Exhibits- Deposition of Kristine Skahan
28. Stipulation with Employer 14-039564
29. Stipulation with Employer 14-050921
30. Check Stubs

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

All Exhibits were received without objection and admitted into evidence.

The Second Injury Fund did not offer any additional exhibits.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

Claimant testified at Trial that on 6/4/2014, as she lifted a patient's legs to place a wedge underneath them, she felt a pop and immediate pain in her low back. The following day, Claimant sought treatment at Cameron Regional Medical Center where x-rays of her lumbar spine were ordered. (Ex. 1, p. 26.) The x-rays revealed no fracture or subluxation, normal alignment, and that vertebral bodies maintained height. *Id.* Later that same day, 6/5/2014, Claimant saw Dr. Tharp at U.S. HealthWorks Medical Group. (Ex. 8, p. 14.) Dr. Tharp diagnosed a lumbar strain, prescribed pain medication and a muscle relaxer, and recommended physical therapy. *Id.* p. 17-18.

On 6/9/2014, Claimant saw Dr. Boyett at U.S. HealthWorks Medical Group. (Ex. 8, p. 19.) Dr. Boyett diagnosed a lumbar back strain with spasm, continued Claimant's pain medication, and recommended physical therapy. *Id.* p. 20. Claimant continued care with Dr. Boyett over the next month. *Id.* p. 22-34. Claimant began physical therapy on 6/26/2014. *Id.* p. 26. On 7/9/2014, Dr. Boyett noted that Claimant refused to perform her low back exercises in physical therapy. *Id.* p. 33. On 7/9/2014, Dr. Boyett marked Claimant at full duty, pending modifications made by the pain specialist she was referred to. (Ex. 8, p. 34) On 7/17/2014, Claimant claimed she injured her low back while lifting a patient from the floor to a mattress on the floor. At Trial, Claimant testified she felt worsened pain in the "same spot" and that she "aggravated the back" injury from 6/4/2014. Claimant finished her shift and then returned to Dr. Boyett. Dr. Boyett's records reflect that Claimant was being treated for her 6/4/2014 injury. (Ex. 11, p. 2.)

On 8/5/2014, Claimant saw Dr. Wheeler at Prime Care Consulting. (Ex. 8, p. 67.) Dr. Wheeler's records reflect that the date of injury for which Claimant sought care was 6/4/2014; and that injury occurred when Claimant was placing a wedge under a patient's legs. *Id.* Dr. Wheeler referred Claimant for an MRI. *Id.* p. 69. On 8/11/2014, Claimant received an MRI of the lumbar spine which revealed: (1) a disc bulge and central disc protrusion at L3-L4 resulting in mild central spinal canal stenosis but no foraminal stenosis; (2) disc bulge with left paracentral and foraminal shallow disc protrusion at L4-L5 resulting in mild left lateral recess stenosis; and (3) mild disc bulge without facet arthropathy at L5_S1 resulting in bilateral mild

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

foraminal stenosis but no significant spinal canal compromise. (Ex. 9, p. 2.) On 8/21/2014, Claimant returned to Dr. Wheeler, who recommended continued physical therapy. (Ex. 8, p. 64.)

Claimant received physical therapy at ARC Physical Therapy between the dates of 8/25/2014 and 10/24/2014. (Ex. 2.) Notably, all ARC Physical Therapy records reflect the date of injury as 6/4/2014. Id. On 8/26/2014, 9/4/2014, and 9/22/2014, Claimant received epidural steroid injections from Dr. Eubanks. (Ex. 27, p. 89.) On 10/31/2014, Claimant saw Dr. Bailey at Precision Spine. (Ex. 18, p. 6) Again, Dr. Bailey's records reflect that claimant was being treated for an injury that occurred on 6/4/2014. Dr. Bailey evaluated Claimant and her history and did not recommend surgery. Id. p. 1. Claimant next saw Dr. Ebelke and Dr. Reintjes; both advised against surgery. (Ex. 27, p. 90.)

Claimant received at CT myelogram at Dr. Reintjes's request on 3/26/2015. The CT revealed a generalized disk bulge at the L3-L4, a mild generalized disk bulge with herniation at the L4-L5, and a mild posterior disk bulge at the L5-S1. Id. On 6/28/2015, Claimant received a cervical MRI which evidenced spinal stenosis. Id. p. 91. Claimant next began treatment with Dr. Hancock, who administered a series of sacroiliac joint injections and lumbar epidural steroid injections on 6/28/2016, 7/14/2016, 7/26/2016, 9/29/2016, 10/13/2016, and 10/27/2016. Id. p. 90-92. Claimant testified she experienced some improvement in symptoms after each injection, but the pain always returned.

Finally, Claimant began treatment with Dr. Montone on 12/5/2016. Id. p 92. Dr. Montone first performed surgery on 1/4/2017 for spinal stenosis. Id. Dr. Montone performed left L3-L4, and L4-L5 hemilaminectomies with a partial medial facetectomy with foraminotomy. Id. Claimant testified that this first surgery reduced the pain she felt in her legs. Next, on 10/11/2017, Dr. Montone performed a bilateral posterolateral spinal fusion at the L3-L4 level to treat spondylolisthesis. Id. p. 93. Claimant testified that this surgery did nothing to alleviate her symptoms. Because Claimant's symptoms continued, Claimant next sought treatment from Dr. Ananth, who placed a dorsal column stimulator at T12-L1. Id. 94. Claimant testified this final surgery reduced the symptoms she experienced in her hips, but that pain in the low back continued. Claimant continues to use prescription pain medications, including Oxycodone and Percocet.

Testimony

At Trial, Claimant testified that the alleged 7/17/2014 injury was an aggravation of her 6/4/2014 injury. She said she felt pain in the same spot during each incident. Claimant stated, "my back pain has never changed since June 2014." Furthermore, Claimant testified that she had recently reentered the workforce. From February through July of this year, Claimant worked as a waitress at Dino's Diner in Cameron. Claimant stated she worked about 30 hours a week. Claimant received some workplace accommodations; co-workers helped her carry food and drinks to tables of 5 or more people. Claimant testified that she is able to do some small chores such as doing the laundry. She cannot sit or stand for long periods and has to lay down throughout the day.

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

Claimant injured her neck on 5/31/2002 while at work. This workman compensation claim settled at 11.25% BAW (45 weeks) and is thus not a qualifying pre-existing injury. (Ex. 21, p. 33.) Claimant testified the pain she experienced from this injury was minimal. Furthermore, Claimant was able to work full time without restrictions until her 6/4/2014 injury.

Claimant left high school in tenth grade but later received her high school diploma via an online program in 2011. (Ex. 30, p. 15-16.) Claimant received a nurse aide certification first in 1994 and again in 2013. *Id.* p. 16. In 1989, while in high school, Claimant worked as a carhop at Sonic. *Id.* p. 17. Claimant ran her own in-home daycare from 1994-1996. *Id.* Claimant did not employ anyone else; she assumed sole responsibility for all childcare and billing. *Id.* This job required her to lift and carry up to 30 pounds. *Id.*

Claimant next worked for Triality, first as a nurse aide, then as a cook. *Id.* As a cook, she had to fill in on a daily basis as a nurse aide as well. As a nurse aide, Claimant had to help lift patients for routine care. As a cook, Claimant was required to lift heavy pots and pans. Then Claimant worked as an in-home aide. Her duties included assisting patients in bathing, dressing, cooking, cleaning, and running errands. *Id.* Claimant worked at Employer as a nurse aide. *Id.* This job required lifting over 100 pounds. *Id.* Job duties included charting, taking vitals, transferring patients, bathing, feeding, and dressing. *Id.* Claimant returned to work from February - June 2021 as a waitress at Dino's Diner. Claimant testified that she carried on a tray up to four plates of food and drinks at a time. Claimant worked approximately 30 hours a week. Claimant's testimony of her work at Dino's Diner indicated that her work was heavily accommodated by employer with assistance by coworkers for even light tasks. Claimant ceased working due to inability to physically perform her work duties.

Claimant retained Dr. William Hopkins to provide an Independent Medical Evaluation (IME). Dr. Hopkins notes that the injury on 7/17/2014 was a continuation of her 6/4/2014 injury just one month prior. (Ex. 27, p. 97.) He also continuously refers to two dates but a single injury: "from the work injury on June 4, 2014 and July 17, 2014." (Ex. 27, p. 99.) However, he provided separate ratings for the two injuries. For the 6/4/2014 injury, he gives a rating of 15% permanent partial disability (PPD) BAW to the lumbar spine. *Id.* p. 98. For the alleged 7/17/2014 injury, he gives a rating of 25% PPD BAW to the lumbar spine. Furthermore, Dr. Hopkins opines that Claimant had asymptomatic preexisting abnormalities in her lumbar spine, which account for an additional 10% PPD BAW. *Id.* Dr. Hopkins also acknowledges the 2002 injury and agrees with the ratings reached in settlement. *Id.*

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." (Ex. 27, p. 98-99.) Dr. Hopkins provided the following restrictions:

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

- No frequent bending at the waist, pushing, pulling, twisting, or squatting;

- No lifting and carrying more than 10 pounds occasionally;

- No climbing ladders and only climb stairs with handrails;

- Avoid walking on inclines;

- Needs a self-paced environment and the ability to lay down when needed.

Ex. 17, p. 99.

Claimant retained Dr. David Robson to provide an IME on 6/16/2015. Dr. Robson notes the 7/17/2014 incident was an aggravation of the 6/4/2014 injury. (Ex. 19, p. 1.) Moreover, that Claimant's "areas of complaints did not change following the July 17th incident." Id. Dr. Robson opined that the 6/4/2014 injury was the prevailing factor in Claimant's need for treatment and surgery. Id. at 8.

Claimant obtained a vocational assessment from Kristine Skahan on 3/2/2020. (Ex. 30, p. 4.) She outlined Ms. Danner's medical records, interviewed the Claimant, and provided vocational testing. Ms. Skahan explained that the Claimant had an injury to her neck in 2000 and that after the injury she continued to work at a job requiring her to lift up to 100 pounds. Ms. Danner reported that she did have some neck pain when working, but she continued to work on her farm doing activities such as mowing, feeding and watering the animals, and carrying bales of hay. She became unable to do these activities after the injuries in 2014. The Claimant left high school in the 10th grade because she became pregnant but did get her GED years later.

Ms. Danner took a typing test at her meeting with Ms. Skahan and typed only 15 words per minute. The Claimant's work history consisted entirely of medium jobs in the healthcare field with the exception of a six-month employment in the light level as a carhop in 1989. Vocational testing showed the Claimant to read at the 8th grade level, to read and compute math at the 8th grade level, and to spell at the 7th grade level. When asked about her ability to work, Ms. Danner told Ms. Skahan that the main reason she's unable to work is because of daily back pain.

Ms. Danner explained to Ms. Skahan that doing activities such as lifting a vacuum or making a trip to the grocery store will result in her having to be in bed the entire next day. On her bad days, she lays down to sleep or to stretch her back and this happens frequently. She does not believe she could do any of her past work as a nurse aide or home health care aide because she cannot be on her feet and cannot perform any heavy lifting. Ms. Skahan evaluated the Claimant's transferable skills and found no jobs matching the Claimant's in similar work fields. She indicated that the transferable skills from her work related to similar jobs in a light to heavy nature but there is no transferability to even sedentary jobs.

Ms. Skahan noted that Dr. Hopkin's restrictions placed her in a less than sedentary capacity for work. She stressed the restriction of alternating sitting and standing and the need to be in a self-paced environment knock her out of the labor market. Ms. Skahan concluded that Ms. Danner was unable to perform any of her past work and would also be unable to perform any

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

sedentary work. She felt that her vocational disability and lack of access to the open labor market was due to the work-related injuries. She did not feel that any pre-existing injuries prior to June 4, 2014 were hindrances or obstacles to her employment. (Ex. 30.) Ms. Skahan testified that when looking at Dr. Hopkin's restrictions, the ten-pound weight restriction put the claimant at sedentary work but that the need to change positions would not be tolerated by an employer, nor would leaving the workstation to lie down be possible in any kind of employment. (Ex. 29, p. 48.)

Claimant has the burden of proving all material elements of her claim. Jefferson City Country Club v. Pace, 500 S.W.3d 305, 313 (Mo. App. W.D. 2016); Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. Banc 2012). She has met her burden in part, and failed to meet her burden in part, as set out below.

1. Whether the employee suffered any disability and, if so, the nature and extent of the employee's disability and whether the employee is permanently and totally disabled.

"Expert opinion evidence is necessary in order to prove the extent of a preexisting disability, so that such percentage can be evaluated against the disability percentage existing after the compensable injury, in order to determine what percentage of permanent partial disability is attributable to the job-related injury which is the basis for the worker's compensation claim." Plaster v. Dayco Corp., 760 S.W.2d 911 at 913 (Mo. App. S.D. 1988).

Section 287.020.6 RSMo defines "total disability" as the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." An employee is permanently and totally disabled if no employer in the usual course of business would reasonably be expected to employ the employee in his or her present physical condition." Pennewell v. Hannibal Regional Hosp., 390 S.W.3d 919, 924-25 (Mo. App. E.D. 2013) (citing Clark v. Harts Auto Repair, 274 S.W.3d 612, 616 (Mo. App. W.D. 2009)).

It is well established that the test for determining whether a claimant is permanently and totally disabled "is whether the worker is able to compete in the open labor market." Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011) (internal citations omitted). "The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition." Archer v. City of Cameron, 460 S.W.3d 370, 375 (Mo. App. 2015) (injury in Archer occurred in 2008). The burden is on the claimant to establish he is permanently and totally disabled. Id. Whether a Claimant is permanently and totally disabled is a factual question, not a legal question. Id at 376 (citing Rader v. Werner Enters., Inc., 360 S.W.3d 285, 301 (Mo. App. E.D. 2012)).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

The Court finds that Claimant to be a credible witness as her demeanor was clear and direct, and her testimony was consistent with the Exhibits in evidence. Claimant's testimony and the expert medical and vocational testimony, including Dr. Hopkins and Ms. Skahan, all make clear that, based on her age, experience, transferable skills, and current work restrictions, the Claimant has met her burden of proof that she is permanently and totally disabled. While Claimant attempted to work for four months in 2021, this attempt was heavily accommodated by the employer in a way that the Court finds to be out of the ordinary for jobs Claimant may be otherwise qualified in the open labor market. Even with substantial accommodations, Claimant was still unable to maintain employment with this employer for more than a few months. Claimant has limited transferable education and technical job skills and the Court finds that Claimant is unemployable on the open labor market. Therefore, the Court finds that Claimant is permanently and totally disabled.

1. Whether the alleged accident or occupational disease caused the disability the employee claims.

Section 287.020.2, RSMo defines accident as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." According to Section 287.020.3, injury is defined as "an injury which has resulted out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Prevailing factors defined by the primary factor in relation to any other factor causing both the result medical condition and disability."

While it is noted that Claimant and Employer/Insurer settled Claims for Compensation for both the work injury that occurred on 6/4/2014 and the alleged work injury of 7/17/2014, the evidence and testimony in the case does not indicate this conclusion. Dr. Hopkins stated that "(b)ased on the short period of time between her two injuries with the injuries in the same portion of her body, I believe that her low back injury on July 17, 2014, was a continuation of her first injury just over one month prior." (Ex. 27, p. 97.) This is consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opine that the 7/17/2014 incident was an aggravation or continuation of the 6/4/2014 injury. Dr. Robson, whose opinion the Court finds to be most credible, specifically states that the 6/4/2014 injury was the prevailing factor in Claimant's need for treatment.

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 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.

1. Whether the Second Injury Fund is liable to the Claimant for benefits.

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." Treasurer v. Cook, 323

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: TINA DANNER

Injury No: 14-050921

S.W.3d 105, 111 (Mo. Ct. App. 2010). "If a claimant establishes either that the preexisting partial disability combined with a disability from a subsequent injury to create a permanent and total disability or that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, the Second Injury Fund is liable." *Id.*

In order to find Second Injury Fund liability, the Court must determine whether or not the employee's prior disabilities are a hindrance or obstacle to employment or to obtain re-employment if the employee becomes unemployed. §287.220.1 R.S.Mo. (1994); *Messex v. Sachs Electric Co.*, 989 S.W. 2d (Mo. App. 1997); *Garibav v. Treasurer*, 964 S.W. 2d 474 (Mo. App. 1998); *Rose v. Treasurer*, 899 S.W. 2d 563 (Mo. App. 1995); *Leutzinger v. Treasurer*, 895 S.W. 2d 591 (Mo. App. 1995). The focus of whether a pre-existing disability rises to the level of "a hindrance or obstacle to employment or reemployment if the employee becomes unemployed" is on the potential that the pre-existing injury may combine with a future work-related injury to result in a greater degree of disability than would have resulted if there were no such prior condition. *Garibav v. Treasurer of Missouri*, 930 S.W.2d 57 (Mo. App. 1996). "Any preexisting injury which could be considered a hindrance to an employee's competing for employment in the open labor market should trigger second injury fund liability." *Leutzinger*, 895 S.W.2d at 593.

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.

1. What is the Claimant's date of Maximum Medical Improvement

Maximum medical improvement is defined in Section 287.020 RSMO as follows: "For the purposes of this chapter, 'maximum medical improvement' shall mean the point at which the injured employee's medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty." In 2017, the workers' compensation law was amended to state clearly that TTD or TPD benefits shall be paid throughout the rehabilitative process "until the employee reaches MMI, unless such benefits are terminated by the employee's return to work or are terminated as otherwise specified in this chapter." Section 287.149.1 RSMo.

When the factfinder is presented with evidence that a claimant has reached maximum medical improvement yet seeks additional treatment beyond that date for the work-related injury in an attempt to restore themselves to a condition of health or normal activity by a process of medical rehabilitation, the factfinder must make a factual determination as to whether the additional treatment was part of the rehabilitative process; if it is determined that the additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to total temporary disability (TTD) benefits until the rehabilitative process is complete, and once the rehabilitation process ends, the factfinder then must make a determination regarding the permanency of a claimant's injuries. *Greer v. SYSCO Food Servs.*, 475 S.W.3d 655 (Mo. banc 2015).

Page 11

In Greer, the Court recognizes that the date of maximum medical improvement could aid the factfinder in determining the time when a disability becomes permanent and TTD benefits should be terminated. However, it held that the factfinder is not required to accept maximum medical improvement as a bright-line date to terminate TTD benefits when there is substantial and competent evidence presented that a claimant continues to be engaged in the rehabilitative process beyond a date initially believed to be the end of the rehabilitative process. Id. at 669.

Claimant argues that the date of MMI for the 6/4/2014 injury is 7/9/2014, when Dr. Boyett released her at full duty. (Ex. 8, p. 34.) As described above, however, the Court finds that Claimant did not suffer a new work injury on 7/17/2014 but, rather, experienced additional symptoms resulting from a continuation of the injury suffered on 6/4/214. Claimant testified that between 7/9/2014 and the date of the alleged second injury on 7/17/2014 she continued to complain of low back pain in the same area resulting from the 6/4/2014 work injury. Claimant testified that her back pain "has never changed since June 2014." In fact, she told Dr. Boyett "she is no better." (Ex. 8, p. 32). Although Dr. Boyett released her at full duty on 7/9/2014, he also referred Claimant to a pain specialist for continued care. (Ex. 8, p. 34.) The Court finds that Claimant did not reach maximum medical improvement on 7/9/2014.

Claimant testified that it was her understanding that she was released at maximum medical improvement on June 16, 2019 by Dr. Montone, which was after her last medical procedure which was additional treatment as part of the rehabilitative process for the work injury of June 4, 2014. This is supported by all of Claimant's treatment records after 7/17/2014 that refer to 6/4/2014 as the date of injury, including Dr. Hopkins' report which lists 6/16/2019 as the last day for which medical records are available. (Ex. 2; Ex. 8, p. 67; Ex. 11, p. 2; Ex. 18, p. 6; Ex. 27, p. 95.) Therefore, the Court finds Claimant's date of maximum medical improvement to be June 16, 2019.

**Conclusion**

The Court finds Claimant met her burden of proof that she is permanently totally disabled due to her work injury of June 4, 2014. The Court further finds that Claimant failed to meet her burden of proof that she suffered a new work injury on July 17, 2014 or that the Second Injury Fund is liable to Claimant for benefits. Furthermore, the Court finds Claimant's date of maximum medical improvement to be June 16, 2019.

The award is subject to modifications as provided by law.

I certify that on Dec 16 2021 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: *Hanni Carver*

Made by: *Ryan S. Asbridge*

Ryan S. Asbridge

Administrative Law Judge

Division of Workers' Compensation