Peggy Callahan v. Lake Regional Health System

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 17-092543

Employee: Peggy Callahan

Employer/Insurer: Lake Regional Health System (settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

§287.220.3(2) and (3) RSMo provide, in relevant part:

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability,

as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

Under § 287.220, "[p]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined." ${ }^{1}

According to the Supreme Court in Second Injury Fund v. Parker, { }^{2}$ to establish a compensable Second Injury Fund claim under § 287.220.3, an employee must meet two conditions:

(1) Have at least one "qualifying" preexisting disability as defined by § 287.220.3(2)(a);

(2) Thereafter sustain a subsequent compensable work-related injury that combined with employee's qualifying preexisting disability(ies) results in permanent total disability. ${ }^{3}$

A "qualifying" preexisting disability need not have been known to employee or reached maximum medical improvement before employee's primary work injury. ${ }^{4}$

In Klecka, the Court stated that:

Under-section 287.220.3, employees must meet two conditions to make a compensable [permanent and total disability] claim against the [Second Injury] Fund. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal at least 50 weeks of [permanent partial disability], and meet one of four listed criteria in-section 287.220.3(2)(a)a(i)-(iv)....[Second, the employee must show he 'thereafter sustains a subsequent compensable work-related injury [often referred to as the primary injury] that, when combined with the preexisting disability[,] ... results in a permanent total disability as defined under this chapter.' [Section 287.220.3(2)(a)b]. As this Court recently explained in Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021):

[^0]

[^0]: ${ }^{1}$ Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo.banc 2003).

${ }^{2} 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021).

{ }^{3} Parker, 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021).

{ }^{4}$ Id., at 182 .

'[A]n employee satisfies the second condition by showing the primary injury results in [permanent and total disability] when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition.'5

The Court in Klecka also noted that the employee in that case "correctly observes section 287.220 .3 does not prohibit the consideration of other 'life factors,' including, but not limited to... age, education, transferable skills, and physical appearance."6

As noted by the administrative law judge, employee settled the November 10, 2017 injury claim against the employer/insurer based on permanent partial disability of 40 % of the left hip. Employee also settled a claim against the employer/insurer or an October 5, 2016 injury based on permanent partial disability 33 % of the right shoulder and 25 % of the body referable to the neck. However, the parties did not stipulate at the hearing that the prior settlements reflected the extent of permanent partial disability in the claim against the Second Injury Fund.

Employee also had a preexisting left hip injury which was not work-related. Employee's expert, Dr. Neighbor, opined that employee had a preexisting disability of 20 % of the left hip ( 41.4 weeks). This preexisting disability is below the 50 -week statutory threshold. We also find that employee failed to prove that her preexisting left hip injury "directly and significantly aggravates or accelerates the subsequent work-related injury." ${ }^{7}$ The preexisting left hip is therefore not a qualifying disability for Second Injury Fund liability.

Based upon our review of the evidence, we find employee does not qualify for Second Injury Fund benefits because the medical and vocational expert testimony presented by employee's experts considered non-qualifying disabilities in their opinions of whether employee was permanently and totally disabled (PTD). The experts considered the qualifying disabilities from the October 5, 2016 injury to her right shoulder and neck (the 2016 injury) in conjunction with a non-qualifying disability (her preexisting left hip injury prior to 2016) in order to reach their conclusion that employee was PTD. As the Court directed in Parker and Klecka, non-qualifying disabilities are not to be used in determining whether an employee is entitled to Second Injury Fund benefits: "Nonqualifying preexisting disabilities cannot be considered in determining whether a claimant satisfies the second condition of section 287.220(3)."8

None of the medical or vocational experts opined that employee's two qualifying (over 50 weeks) right shoulder and neck disabilities from her October 5, 2016 injury combined with her November 10, 2017 primary left hip injury (the 2017 injury) to render her PTD. Employee's experts opined that she was PTD due to the primary injury and all of her preexisting disabilities, including her non-qualifying preexisting disabilities. Therefore, employee does not qualify for Second Injury Fund benefits based upon the record in this case.

[^0]

[^0]: ${ }^{5} Klecka, 644 S.W.3d at 566.

{ }^{6} Id. at 567 .

{ }^{7} \S 287.220 .3(2).

{ }^{8}$ See Klecka, 644 S.W.3d at 567 (citing Parker, 622 S.W.3d at 182).

- 4 -

Employee argues in her brief that this Commission should combine the number of weeks from the Second Injury Fund qualifying preexisting disabilities (right shoulder and neck) with the 2017 injury, which would equal 259.36 weeks. Under §287.220.3, Second Injury Fund liability is not calculated by combining disabilities in that manner.

We note that based upon the testimony of Dr. David Minges and vocational expert Mr. Robert Hosutt, employee may not be PTD. Dr. Minges opined that employee was not permanently partially disabled (PPD) due to her 2017 injury, and assigned no PPD for the 2017 injury. Additionally, according to Dr. Minges, employee had only 2% PPD of the body as a whole at the cervical spine due to the 2016 injury, and the remaining 15% PPD at that level was due to natural aging. Mr. Hosutt further opined that there were a number of jobs that employee can perform.

Moreover, employee continued to work after the 2016 injury and the 2017 injury. Employee resigned from employer on July 26, 2020, but continued to work after her resignation until September 18, 2020.

Therefore, we find that employee has not sustained her burden of proof and persuasion that she qualifies for Second Injury Fund benefits.

We affirm and adopt the award of the administrative law judge as supplemented herein.

Employee’s claim against the Second Injury Fund is denied because employee failed to demonstrate that the primary injury combines with qualifying preexisting disabilities to result in permanent total disability.

The award and decision of Administrative Law Judge Hannelore D. Fischer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **21st** day of November 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Hodney J. Campbell, Chairman**

**DISSENTING OPINION FILED**

**Shalonn K. Curls, Member**

**Kathryn Ryan, Member**

Attest:

**Sue L. Hoag**

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record.

I would reverse the administrative law judge's award and find that employee is permanently and totally disabled due to a combination of her November 10, 2017 primary injury and preexisting disabilities; and that the Second Injury Fund is liable to employee for permanent total disability benefits.

Dr. Neighbor and Mr. Dreiling both opined that employee was permanently and totally disabled due to the combination of her 2017 primary injury to her left hip, her preexisting 2016 compensable disabilities to her right shoulder and her neck, and her preexisting left hip disability prior to 2016.

"In 2013, the legislature amended section 287.220 to limit the number of workers eligible for fund benefits because the fund was insolvent."1 It is reasonable to infer that the legislature's statutory changes were designed to ensure that the most severely injured workers be given priority in determining eligibility for an award against the Second Injury Fund.

No provision of § 287.220.3(2) RSMo requires the administrative law judge or the Commission to confine its consideration of medical causation of an employee's permanent total disability to the specific words used by a medical or vocational expert without regard for the context of their opinions. The administrative law judge correctly based her Second Injury Fund permanent total disability award on careful consideration of the evidence in the record as a whole regarding the seriously disabling effects of the employee's multitude of disabling preexisting conditions in combination with disability attributable to her primary injury.

As noted by the Southern District in Pavia v. Smitty's Supermarket, ${ }^{2}$ "the Commission does not have to make its decision only upon testimony from physicians; it can make its findings based on the entire evidence . . . the Commission is not bound by the percentage estimates of medical experts and it may consider all of the evidence, including the testimony of the employee and all reasonable inferences."3

On February 15, 2022, well after the parties submitted their case to the administrative law judge following the September 20, 2021 hearing, the Court of Appeals of the Western District issued a decision in James Swafford v. Second Injury Fund ${ }^{4}$. Swafford involved the critical issue of whether the Supreme Court's decision in Cosby constituted a substantive law change establishing good cause to allow an employee to present additional evidence to meet the burden of proof in a post-2014 Second Injury Fund Claim. The court reasoned that it was unfair to punish an employee for failing to introduce evidence when he did not have the benefit of the court's guidance as to the

[^0]

[^0]: ${ }^{1} Cosby v. Treasurer of State, 579 S.W.3d 202, 205 (Mo. banc. 2019).

{ }^{2} 118, S.W.3d 228 (Mo. App. 2003).

{ }^{3} Pavia, 118, S.W.3d 228, 239.

{ }^{4}$ WD84562 (February 15, 2022).

evidence necessary to make an adequate case and unfair to deny the employee an opportunity to present evidence relevant to a newly announced legal standard.

Under Swafford, the interests of justice compel that the employee's attorney, in this case, is provided an opportunity to present additional evidence clarifying the impact of recent rulings of the Court in Parker and Klecka given the ambiguities involved in both decisions. To deny the employee the ability to clarify whether she is permanently and totally disabled from her conditions excluding her "non-qualifying" disabilities is also contrary to Parker's mandate that the existence of a non-qualifying disability should not be counted against the employee and Klecka's instruction that "life factors" are appropriately considered in a post-2014 permanent total disability claim.

The Supreme Court of Missouri accepted the Second Injury Fund's Application for Transfer of Swafford on May 17, 2022. ${ }^{5}$ In the absence of a remand to allow the presentation of additional evidence, the Commission should at least stay the employee's appeal pending the Supreme Court's resolution of the Swafford case.

For these reasons, I would find the Second Injury Fund to be liable for employee's permanent total disability, or at least allow the employee a full opportunity to present her case under the current state of the law. Because the majority of the Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{5}$ James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, SC99563.

Employee: Peggy Callahan

Dependents: N/A

Employer: Lake Regional Health System (previously settled)

Additional Party: Treasurer of the State of Missouri,

Custodian of the Second Injury Fund

Insurer: N/A

Hearing Date: September 20, 2021

Injury No.: 17-092543

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: November 10, 2017

1. State location where accident occurred or occupational disease was contracted: Camden County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

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

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

1. Was employer insured by above insurer? N/A

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

See Award

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: Left hip

1. Nature and extent of any permanent disability: 40% left hip at 207 week level

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

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

WC-32-R1 (6-81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Peggy Callahan

Injury No. 17-092543

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

1. Employee's average weekly wages: --

1. Weekly compensation rate: $923.01 for permanent total disability benefits

1. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable: Employer previously settled.

1. Second Injury Fund liability: No.

1. Future Requirements Awarded: None

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

The compensation awarded to 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: Mr. John McKay

WC-32-03 (6-81)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Peggy Callahan

Injury No. 17-092543

Employee: Peggy Callahan

Injury No: 17-092543

Dependents: N/A

Employer: Lake Regional Health System (previously settled)

**Additional Party:**

- Treasurer of the State of Missouri

- Custodian of the Second Injury Fund

**Insurer:** N/A

**Before the DIVISION OF WORKERS' COMPENSATION**

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on September 20, 2021. Memoranda were submitted by October 22, 2021.

The parties stipulated that on or about November 10, 2017, the claimant, Peggy Callahan, was in the employment of Lake Regional Health System. The parties stipulated that all facts relevant to the claimant's relationship with the employer/insurer are resolved in the claimant's favor in her claim against the Second Injury Fund. The claimant's weekly compensation rate is 483.48 for permanent partial disability benefits and 923.01 for permanent total disability benefits.

The issue to be resolved by hearing is the liability of the Second Injury Fund.

The parties stipulated that the November 10, 2017 claim against the employer/insurer settled based on a permanent disability of 40 percent of the left hip and that a claim for an injury date of October 5, 2016 (16-077816) settled based on a permanent disability of 33 percent of the right shoulder and 25 percent of the body referable to the neck; the parties do not, however, agree that the settlements reflect the extent of permanent disability resulting from the November 10, 2017 and October 5, 2016 claims in the pending claim against the Second Injury Fund.

The claimant, Peggy Callahan, was born in 1955, making her 65 years old as of the date of hearing.

On October 5, 2016, Ms. Callahan had been employed at Lake Regional Health System as a recovery room staff nurse for about five years. On that date, Ms. Callahan was in the recovery room assisting a large, 280-pound patient coming out from anesthesia when she was grabbed and her right arm was torqued or twisted from the base of her skull down to her wrist. Ms. Callahan also described a lot of pressure on her left hip from this twisting motion. Ms. Callahan screamed and four people arrived to help separate Ms. Callahan from her attacker. Ms. Callahan had right rotator cuff surgery performed on January 19, 2017, as well as the repair of a torn right bicep. After surgery, Ms. Callahan continued to have difficulty with right arm overhead lifting as well.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Peggy Callahan

Injury No. 17-092543

as with manipulating the mouse on her computer using her right arm. Ms. Callahan described pain in her neck and right shoulder into her forearm which she said was like a tourniquet or burning feeling.

On November 10, 2017, Ms. Callahan was moving a cart with a 365-pound patient and jammed her left hip and leg into the cart when the cart hit a plate about one and one half to two inches above the floor. Ms. Callahan initially attempted to treat the area with ice. Ms. Callahan developed a large, eight by four to five inch bruise on her femur. On March 27, 2018, Ms. Callahan had surgery on her left hip for a torn labrum. After the surgery Ms. Callahan continued to have difficulty with left hip pain and fatigue. Ms. Callahan reclines as well as sits on a pillow to alleviate the left hip pain. Ms. Callahan described her left hip pain after the November accident and injury as between a three and a five on a ten-point scale.

Ms. Callahan had anterior neck surgery at two levels on October 18, 2019, with immediate improvement of the pain in her neck and shoulder and arm and fingers. Currently, her pain in her neck and right arm fluctuates between three and a five while her right shoulder pain is at a three and a four.

Ms. Callahan testified that after her recovery, her employer, Lake Regional Health System, attempted to accommodate her limitations, restricting her from heavy lifting and having to pump up the hospital beds with her legs. Ms. Callahan was given a rolling chair so that she would not have to get up and down from a seated or standing position and was not assigned heavy patients.

Ms. Callahan testified that she injured her left femur previously in 2015, and on May 27, 2015, Dr. Jeffrey Jones performed a percutaneous screw fixation of the left femoral neck fracture. Ms. Callahan recovered to the point that she was able to lift patients' legs weighing up to 80 pounds for five minutes. Callahan said that any lingering symptoms from her prior left femur injury resembled fatigue rather than pain.

Ms. Callahan described her limited activities since her accidents, stating that she has to sit to get dressed and has difficulty getting tops on due to her right shoulder pain. While Ms. Callahan did housework prior to the accident, since the November 2017 accident and injury her husband does the housework, including the laundry. Ms. Callahan said that she participated in recreational activities prior to the two accidents in 2016 and 2017, but now only drops a line in the water when fishing, only meets her husband at car shows to eat, and no longer drives more than about 30 minutes. Ms. Callahan now reclines in the middle of the day, something she did not feel she needed to do prior to the 2016 and 2017 accidents. Ms. Callahan reclines about four times a day between eight and five and sleeps about 30 minutes a day.

Ms. Callahan resigned from her job at Lake Regional Health System on July 26, 2020, because, even with accommodations, she was in bed by 8:30 every evening and spent weekends in bed; Ms. Callahan said that she felt that she was in "survival mode." Ms. Callahan actually continued to work after her resignation until September 18, 2020. Ms. Callahan testified that she does not believe that she could work a 40-hour week at any job.

WC-32-81 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Peggy Callahan

Injury No. 17-092543

During cross-examination Ms. Callahan testified to her previous work as a financial advisor as well as her work in cancer research and her supervisory roles at several Kansas City area hospitals.

Stephanie Wyatt, Ms. Callahan's hairstylist, testified to Ms. Callahan's shortened time for hair procedures due to her discomfort. Ms. Wyatt has been styling Ms. Callahan's hair since 2017. Similarly, Michelle Lutz, Ms. Callahan's aesthetician, spent an hour a month performing facials and skincare on Ms. Callahan prior to 2016 and since 2016 performs only a five to ten minute lip wax every three weeks.

Patrick Callahan, Ms. Callahan's husband for the past 32 years, testified that prior to October of 2016 Ms. Callahan was very active, but that after October of 2016 Ms. Callahan would be in bed or asleep 50 percent of the time after work. Mr. Callahan described the severe curtailment of Ms. Callahan's activities after October of 2016; Mr. Callahan said that Ms. Callahan needed an electric rather than manual recliner after her October 2016 accident and that they began sleeping in separate beds after Ms. Callahan's October 2016 accident because Ms. Callahan was up and down all night long resulting in Mr. Callahan's inability to get a full night's sleep.

Dr. Ernest Neighbor, orthopedic surgeon, evaluated Ms. Callahan on December 23, 2017 and April 30, 2020. Dr. Neighbor opined that as a result of the October 5, 2016 accident Ms. Callahan suffered a permanent partial disability of 40 percent of the right shoulder and 30 percent of the body referable to the cervical region or neck. With regard to the November 10, 2017 accident, Dr. Neighbor opined to a 40 percent permanent disability at the level of Ms. Callahan's hip. Dr. Neighbor also opined to a 20 percent permanent disability of Ms. Callahan's left hip preexisting the October 5, 2016 accident and injury; Dr. Neighbor specifically stated that Ms. Callahan did not have a 50-week disability preexisting the October 5, 2016 injury. Dr. Neighbor opined that Ms. Callahan is permanently and totally disabled as the result of the combination of Ms. Callahan's condition preexisting her October 5, 2016 accident and injury with her October 2016 and November 2017 injuries. Dr. Neighbor further opined that Ms. Callahan is incapable of full employment due to the combination of her work injuries and her preexisting injuries and that she is medically permanently and totally disabled. Dr. Neighbor stated preexisting her October 5, 2016 accident Ms. Callahan was restricted to two to three hours of standing and walking. When asked by counsel for the employer/insurer about whether the prior left hip injury aggravated the subsequent work-related left hip injury, Dr. Neighbor said "probably some." (Neighbor's depo p47 118) As the result of the October 5, 2016 work injury Ms. Callahan's restrictions include "no awkward positions of the neck, no lifting above the shoulder, no lifting greater than 5 to 10 pounds below the shoulder." (Neighbor depo p24,120-22) With regard to the November 10, 2017 accident, Dr. Neighbor's restrictions include "no squatting, stooping, climbing, standing, or walking for more than an hour." (Neighbor depo p24, 124, 25) Dr. Neighbor went on to say that Ms. Callahan needs the ability to change positions from sitting to standing to reclining to control pain as the result of the combination of the October 5, 2016 and November 10, 2017 accidents and injuries. Dr. Neighbor felt that Ms. Callahan reached maximum medical improvement on April 18, 2020.

WC-32-RJ (6-01)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Peggy Callahan

Injury No. 17-092543

Michael Dreiling, vocational rehabilitation expert, testified by deposition on January 19, 2021, that he met with Ms. Callahan on August 4, 2020, to perform a vocational rehabilitation assessment. Mr. Dreiling identified limitations or restrictions for Ms. Callahan referable to the left hip prior to October 5, 2016, as two to three hours of standing and walking. The restrictions Mr. Dreiling identified as attributable to the October 5, 2016 accident and injury for Ms. Callahan are "no awkward positions of neck, no lifting above shoulder, no lift greater than 5 to 10 pounds below shoulder." (Dreiling depo p7, 11-3) For the November 10, 2017 accident and injury, Mr. Dreiling identified restrictions of "no squatting, no stooping, no climbing, no standing, walking more than one hour" for Ms. Callahan. (Dreiling depo p7,8) Mr. Dreiling opined that the October 5, 2016 and November 2017 accidents and injuries combined to cause Ms. Callahan to need to change positions from sitting to standing to reclining to control her pain. Mr. Dreiling went on to say that each separate restriction or limitation would be an obstacle or hindrance to employment or to obtaining reemployment and would represent a significant vocational obstacle and barrier for Ms. Callahan's return to the open labor market. Mr. Dreiling opined that Ms. Callahan's age and the global pandemic would also negatively affect Ms. Callahan's vocational opportunities. Mr. Dreiling noted that although Ms. Callahan continued to work at Lake Regional Health System until September of 2020, Ms. Callahan often did not work a full day due to pain and would need to lie down at home for several hours after work. Mr. Dreiling said that Ms. Callahan is not capable of working eight hours a day, five days a week, 52 weeks a year, at any substantial gainful employment due to the combination of her preexisting restrictions and limitations and those attributable to the October 5, 2016 and November 10, 2017 injuries, respectively. Mr. Dreiling admitted that the restrictions upon which he based his conclusions were those of Dr. Neighbor. During cross-examination by counsel for the Second Injury Fund, Mr. Dreiling admitted to Ms. Callahan's impressive educational achievements as well as her equally impressive and varied work history prior to October 5, 2016.

Dr. David Minges, board certified orthopedic surgeon at the Onyx Spine Institute focusing on spine surgery only, evaluated Ms. Callahan on April 23, 2021, regarding her cervical spine. Dr. Minges noted that Ms. Callahan reported numbness into the fourth and fifth fingers of her right hand after her October 5, 2016 accident and injury, yet there was no "structural impingement upon the C8 nerve root on the right side" from which symptoms in the ring and small fingers emanate. (Minges depo p15 112,13) Dr. Minges pointed out that Dr. Mesfin performed a C4-6 anterior discectomy and that Ms. Callahan continued to complain of paresthesias in the fourth and fifth fingers after surgery. Dr. Minges opined that Ms. Callahan suffered an acute cervical strain or sprain as the result of her October 5, 2016 accident which resolved with medication management. Dr. Minges went on to opine that Ms. Callahan's neck symptoms for which she had surgery were related to her preexisting chronic degenerative condition in her cervical spine. Dr. Minges opined a permanent disability of two percent of the body to the cervical sprain resulting from the October 5, 2016 accident and injury; Dr. Minges imposed no permanent restrictions on Ms. Callahan as the result of the October 5, 2016 accident and injury and treatment therefor.

Robert Hosutt, vocational rehabilitation specialist, testified by deposition on February 25, 2021, that he evaluated Ms. Callahan on behalf of the Second Injury Fund and issued a report based

WIC-32-RJ (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Peggy Callahan

Injury No. 17-092543

thereon on January 4, 2021. Mr. Hosutt noted that Ms. Callahan had no permanent restrictions given to her by her treating physicians after any of her 2016 and 2017 injuries. Also noted by Mr. Hosutt was Ms. Callahan's return to work after each of her injuries. Mr. Hosutt acknowledged that the restrictions imposed on Ms. Callahan by Dr. Neighbors would place Ms. Callahan into the sedentary work capacity. While Mr. Hosutt admitted that Ms. Callahan does have some vocational limitations, he opined that there are a number of jobs that Ms. Callahan can do, including research and preparing medical chronologies for attorneys. Mr. Hosutt said that Ms. Callahan might "have decreased functional abilities as compared to the demands of many of her previous jobs" and "appears unable to perform the physical demands of typical staff nursing positions." (Hosutt depo p32, 19,10 and 17, 18) Mr. Hosutt acknowledged that pain is a limiting factor in Ms. Callahan's ability to maintain full time employment and that Ms. Callahan handled her pain while working by being flexible in her work activities and body positions, adjusting them as needed to control her pain.

APPLICABLE LAW

RSMO §287.220.3 3. (1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Peggy Callahan

Injury No. 17-092543

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250.

All claims for permanent total disability shall be determined in accordance with the facts. When an injured employee receives an award for permanent total disability but by the use of glasses, prosthetic appliances, or physical rehabilitation the employee is restored to his or her regular work or its equivalent, the life payment mentioned in subsection 1 of this section shall be suspended during the time in which the employee is restored to his or her regular work or its equivalent. The employer and the division shall keep the file open in the case during the lifetime of any injured employee who has received an award of permanent total disability. In any case where the life payment is suspended under this subsection, the commission may at reasonable times review the case and either the employee or the employer may request an informal conference with the commission relative to the resumption of the employee's weekly life payment in the case.

A workers' compensation claimant satisfies the second condition for compensable permanent total disability benefits from the Second Injury Fund, that the claimant sustained a compensable work related injury, that when combined with preexisting disabilities, resulted in permanent total disability, by showing the primary injury results in permanent total disability when combined with all preexisting disabilities that qualify under one of the four enumerated eligibility criteria for a qualifying preexisting disability, regardless of additional non-qualifying disabilities. Treasurer of the State as Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178 (Mo banc 2021)

AWARD

The claimant, Peggy Callahan, failed to sustain her burden of proof that she is entitled to Second Injury Fund benefits for permanent total disability where there was no evidence of permanent and total disability based on the primary injury and the qualifying preexisting disabilities alone. Both Dr. Neighbor and Mr. Dreiling testified to permanent total disability based on the combination of

WC-52-R1 (6-81)

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**Employee:** Peggy Callahan

**Injury No.:** 17-092543

Ms. Callahan's 2017 primary injury to her left hip, her preexisting 2016 workers' compensation injuries to her right shoulder and her neck, and to her prior non-work injury to her left hip. The prior left hip disability does not qualify as a preexisting disability. There is no evidence that it meets the 50-week requirement set forth in Sec. 287.220.3(2)(a)a. Moreover, it does not meet any of the criteria set forth in subsections i, ii, iii or iv of Sec. 287.220.3(2)(a)a. Dr. Neighbors' comment on cross-examination that the prior left hip injury "probably" affected the 2017 hip injury is not sufficient evidence of direct and significant aggravation or acceleration of the subsequent work injury.

I certify that on **12-13-21**, 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.

**Name by:** *Dennell P. Fisher*

**HANNELORE D. FISCHER**

*Administrative Law Judge*

*Division of Workers' Compensation*