Pamela McCoy v. Meridian Medical Technology

[^0] [^0]: ${ }^{1} 644 S.W.3d 562 (Mo. banc April 26, 2022). { }^{2} 643$ S.W.3d 501 (Mo. banc Mar. 15, 2022).

(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." ${ }^{3}

According to the Supreme Court in Second Injury Fund v. Parker, { }^{4}$ in order 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. ${ }^{5}$

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

${ }^{4} 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021).

{ }^{5}$ Parker, 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021). Emphasis in original.

A "qualifying" preexisting disability need not have been known to employee or reached maximum medical improvement before employee's primary work injury. ${ }^{6}$

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):

'[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. ${ }^{7}$

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." ${ }^{8}$

Commission Rule 8 CSR 20-3.030(2) provides:

(2) Additional Evidence.

(A) After an application for review has been filed with the commission, any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge. The motion to submit additional evidence shall set out specifically and in detail-

1. The nature and substance of the newly discovered evidence;
2. Names of witnesses to be produced;
3. Nature of the exhibits to be introduced;
4. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge;

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[^0]: ${ }^{6} Id. at 182 .

{ }^{7} Klecka, 644 S.W.3d at 566.

{ }^{8} \mathrm{Id}$., at 567

1. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition, shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and
2. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.

(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.

Employee's motions to submit additional evidence, discovery, and additional briefs have been denied. We do not believe that employee met all of the requirements of 8 CSR 20-3.030(2)(A)16. Based upon our review of employee's motion to lift stay, employee wanted the opportunity to add additional evidence (testimony) from Dr. David Volarich and vocational expert Mr. Timothy Lalk to the record.

Even if employee attached this additional testimony to her motion (thereby complying with subsection 5), we do not believe that employee has met the requirements of subsections 4 and 6. This is because this testimony could have been discovered before the first administrative law judge hearing (subsection 4), and the experts' testimony will be cumulative (subsection 6).

The Supreme Court's decision in Klecka clarified the analysis of $\S 287.220$, but did not change the law. The Klecka decision was unlike the Supreme Court's decision in Cosby v. Treasurer of State-Custodian of Second Injury Fund, ${ }^{9} a case that significantly changed how courts apply \S 287.220 .3$ in Missouri workers' compensation cases and the result of which could not have been easily foreseen.

Although Dr. Volarich and Mr. Lalk are not attorneys, they have both served as experts for numerous workers' compensation cases prior to employee's case. They have also been around experienced attorneys that practice in the area of workers' compensation law.

If these experts truly believed that employee was permanently and totally disabled from her primary injury combined with any qualifying preexisting disability, they could have included that opinion in their original medical reports and testimony or amended their reports before the administrative law judge's hearing in employee's case. Dr. Volarich successfully amended his original report with a December 17, 2019 addendum. If employee was allowed to present this additional evidence and testimony, it would unnecessarily add several more months before a decision is rendered by the Commission in employee's case.

We do not believe that it is in the public's best interest for employee's case to remain at the Commission for several more months while employee is allowed the opportunity to obtain cumulative testimony from the same experts.

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[^0]: ${ }^{9} 579$ S.W.3d 202 (Mo. banc 2019).

The administrative law judge found employer to be liable for employee's 10\% permanent partial disability of the right elbow. The parties have not appealed this ruling. We find the administrative law judge's award of 10 % permanent partial disability of the right elbow to be supported by substantial and competent evidence, and we adopt this ruling.

We find the administrative law judge's determination of Second Injury Fund liability for employee's permanent total disability benefits to be incorrect. Here, Dr. Volarich and Mr. Lalk incorrectly considered non-qualifying preexisting disabilities in arriving at their opinions that employee is permanently and totally disabled.

Dr. Volarich opined that employee had carpal tunnel syndrome resulting in 17.5 % of each wrist. This would result in 30.625 weeks of disability, which is below the 50 -week statutory threshold. As such, employee's carpal tunnel syndrome is a non-qualifying preexisting disability and cannot be considered in the permanent total disability analysis.

Dr. Volarich provided a rating of 65 % permanent partial disability to the body as a whole, but he indicated that the disability was due to employee's morbid obesity, diabetes mellitus, restrictive lung disease, sleep apnea, ventral hernias, hypertension, back pain, and bilateral knee pain. We do not find that the stacking of these conditions credibly establishes a preexisting disability that meets the 50 -week threshold.

Moreover, Dr. Volarich's opinions considered the synergistic effect of all of the preexisting disabilities (including employee's non-qualifying preexisting disabilities) along with employee's 2017 injury, which is not allowed under our understanding of the Parker decision.

Even if employee's preexisting morbid obesity and the other "associated disorders" were found to be a qualifying preexisting disability(ies), employee is still not entitled to Second Injury Fund benefits. Similar to Klecka, employee's experts' opinions that she was permanently and totally disabled were not sufficient to prove that she was entitled to Second Injury Fund benefits. Their testimony analyzed employee's non-qualifying preexisting disabilities in their permanent total disability analysis. "Non-qualifying preexisting disabilities cannot be considered in determining whether a claimant satisfies the second condition of section 287.220(3)."10

Furthermore, we do not find the opinions of Dr. Volarich or Mr. Lalk to be credible or persuasive. Mr. Lalk opined that employee was permanently and totally disabled based on his review of opinions from Drs. Volarich, Robert Griesbaum, and Adam Fitzgerald. Dr. Volarich stated at the time of his independent medical examination that employee was not working and was "on disability for unrelated problems." Dr. Fitzgerald told employee on April 17, 2017 that he did not think employee was physically capable of going back to work and placed her on continuous medical leave related to her back pain, lung disease, and hernia-all of this before her primary injury right elbow complaints began. Dr. Griesbaum saw employee on August 18, 2017 for obstructive sleep apnea and asthma and advocated for a total disability determination due to employee's morbid obesity and inability to commute to work-also unrelated and without combination to the right elbow. Mr. Lalk also opined that employee would not be considered for any job based upon her presentation and body habitus, which is also not related to the right elbow.

Therefore, we do not believe that employee qualifies for Second Injury Fund benefits.

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[^0]: ${ }^{10}$ See Klecka, 644 S.W.3d at 567 (citing Parker, 622 S.W.3d at 182).

- 6 -

We affirm and adopt the award of the administrative law judge as modified 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 Suzette Carlisle Flowers is attached and incorporated herein to the extent not inconsistent with this modifying decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

**Rodney J. Campbell**, Chairman

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

**Kathryn S. Winn**, Member

Attest:

**Karla S. Hogg**

Secretary

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

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

"In 2013, the legislature amended section 287.220 to limit the number of workers eligible for fund benefits because the fund was insolvent." ${ }^{11}$ 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 $\S 287.220 .3(2)$ 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." ${ }^{3}$

The majority finds that employee's preexisting disabilities do not meet the 50-week statutory threshold. However, the Court in Parker noted in a footnote that the Court's previous holding in Witte no longer applies. In Witte, the Court held that claimants could not stack multiple disabilities to meet the threshold for fund liability. If that holding no longer applies, I believe employee's preexisting disabilities would qualify. Dr. Volarich rated 17.5\% permanent partial disability of each wrist due to bilateral carpal tunnel syndrome. Combining the wrists, this would equal 61.25 weeks, which would exceed the 50-week threshold. Dr. Volarich also rated 65\% permanent partial disability to the body as a whole due to employee's morbid obesity, diabetes mellitus, restrictive lung disease, sleep apnea, ventral hernias, hypertension, back pain, and bilateral knee pain. Despite the multiple listed conditions, I would find that these preexisting disabilities should be allowed to stack to meet the 50-week threshold.

Moreover, I believe that the Commission majority should have granted employee's motions to submit additional evidence, conduct discovery, and file additional briefs. Given the Supreme Court of Missouri's recent decisions in Parker and Klecka setting forth the proper legal analysis required for permanent total disability claims against the Second Injury Fund, I believe that both parties would have benefited from the opportunity to file additional reports from medical and vocational experts on the issue of whether the combination of employee's pre-existing morbid obesity and primary injury of lateral epicondylitis render her permanently and totally disabled, absent her pre-existing bilateral carpal tunnel diagnoses.

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[^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.

On February 15, 2022, well after the parties submitted their case to the administrative law judge following the September 29, 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 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 the above-stated reasons, I disagree with the majority's decision to reverse the administrative law judge's award without at least allowing the employee a full opportunity to present her case under the current state of the law.

I respectfully dissent.

Shalonn K. Curls, Member

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[^0]: ${ }^{4} WD84562 (February 15, 2022).

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

Hearing Date: November 2, 2020

Checked by: SC

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April 10, 2017
5. State location where accident occurred or occupational disease was contracted: St. Louis City
6. Was the employee employed by the employer at the time the alleged occupational disease occurred? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant repetitively shook drug vials at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right elbow
14. Nature and extent of any permanent disability: 10 % permanent partial disability of the right elbow
15. Compensation paid to-date for temporary disability: $\ 0
16. Value of necessary medical aid paid to date by employer/insurer? $\ 3,355.55

1. Value of necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: 705.52
3. Weekly compensation rate: 477.33/$477.33/$477.33
4. Method wages computation: Stipulation by the parties

1. Amount of compensation payable:

1. Second Injury Fund liability: Yes

Permanent total disability benefits from the Second Injury Fund: A weekly amount of $477.33 payable to Claimant for her lifetime after the Employer's liability ends.

**TOTAL:** **TO BE DETERMINED**

1. Future requirements awarded: N/A

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Ryan R. Cox

Employee: Pamela McCoy

Injury No.: 17-034007

Dependents: N/A

Employer: Meridian Medical Technology

Additional: Second Injury Fund

Insurer: New Hampshire Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On November 2, 2020, Ms. Pamela McCoy, ("Claimant") appeared for an in-person hearing at the Missouri Division of Workers' Compensation ("DWC"), St. Louis Office, before the undersigned administrative law judge, and requested the issuance of a final award. Claimant seeks Workers' Compensation benefits from Meridian Medical Technology ("Employer"), New Hampshire Insurance Company ("Insurer"), and the Second Injury Fund ("Fund") for either permanent partial disability ("PPD") or permanent total disability ("PTD") benefits.

At the hearing, Attorney Ryan Cox represented Claimant. Attorney Brian McBrearty represented the Employer and Insurer, and Assistant Attorney General David Drescher represented the Fund. Court Reporter Lori Sanders transcribed the proceedings. The record closed on November 2, 2020 after presentation of all the evidence. The parties submitted memorandums of law to the Court by November 24, 2020.

Jurisdiction properly lies with the DWC. The parties stipulated that venue is proper in St. Louis City.

At the start of the hearing, the parties agreed upon the following undisputed facts:

1. On April 10, 2017, Claimant was employed by the Employer. Employer's liability was fully insured by the Insurer ${ }^{1}$;
2. Employer and Claimant operated under and were subject to the Missouri Workers' Compensation Law (The "Act"); ${ }^{2}$
3. Claimant sustained an occupational disease injury that arose out of and in the course of her employment with the Employer;
4. Venue is proper in St. Louis City, located in Missouri;
5. Employer received proper notice of Claimant's occupational disease injury;
6. The Claim for Compensation was timely filed;
7. Claimant's average weekly wage was $\ 705.52, and resulted in a rate of compensation of $\ 477.33 per week for temporary total disability ("TTD"), PTD and PPD benefits;
8. Employer paid $\ 3,355.55 in medical benefits;
9. Employer paid no ( $\ 0 ) TTD benefits; and
10. Claimant reached maximum medical improvement ("MMI") on June 12, 2017.

Prior to the start of the hearing Claimant offered the following exhibits electronically through Box.com. At the start of the hearing the exhibits were admitted into evidence without objection from the Employer or the Fund. The Employer offered no exhibits. The Fund offered Exhibit I but withdrew it before the record closed.

Any marks or highlights contained in the exhibits were made before they became a part of the record and were not placed there by the undersigned administrative law judge. Any objections contained in the depositions or made during the hearing but not ruled on during the hearing or in this award are now overruled.

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[^0]: ${ }^{1}$ Any reference in the award to the Employer also refers to the Insurer, unless stated otherwise.

${ }^{2}$ All references in this award are to RSMo Supp. 2013, unless otherwise stated.

Exhibits | Description |

December 24, 2018 |

5-12-2017 to 6-12-2017 |

27-2016 |

17-2004 to 8-29-2005 |

11-24-2014 to 9-11-2017 |

and fingers) |

carpal tunnel) |

At the start of the hearing, the parties identified the following issues for disposition:

1. What is the nature and extent of the Employer's liability for PPD or PTD benefits, if any? Answer: 10 % PPD of the right elbow
2. What is the nature and extent of Fund liability for PTD benefits, if any? Answer: PTD benefits

Claimant proved the following facts by a preponderance of the evidence:

At the time of the hearing, Claimant was 49 years old. She has been married to Shawn McCoy for eight years (date of birth June 13, 1969). Claimant has two dependent children, Madelyn McCoy, age 15, (date of birth April 21, 2005), and Shawn McCoy, age 8, (date of birth January 31, 2012). The highest grade Claimant completed in school was $10^{\text {th }}$ grade, where she earned C's and D's. She did not earn a GED. After Claimant left high school, she did not receive any formal education or vocational training. Her computer skills are limited.

Issued by DIVISION OF WORKERS' COMPENSATION

17-034007

Claimant worked in fast food as a cashier. She worked at St. Alexian Brothers as a housekeeper, St. Anthony's Hospital as a lead housekeeper, shift manager at Papa John's and Sub Express, and J.S. Express as a courier delivering packages. As a manager she delegated duties, supervised work, closed cash register drawers, and performed the same job duties as the other workers.

Employer hired Claimant March 27, 2000 as an assembler. Employer manufactured auto injectors to counteract allergic reactions. Claimant assembled the injector unit. Assembly included the basic unit, power pack, plastic, and casing, label, packing and shipping. She worked as an assembler for eleven years. Two of those years Claimant worked as a senior assembler. She made sure everyone was working, the line ran smoothly, and the batch record was completed. After Claimant developed carpal tunnel syndrome, she became an inspector because it was difficult to install power packs due to hand weakness and problems with assembly. She worked as an inspector for about six years.

As an inspector she received pans of vials that contained drugs. She grabbed a vial from the pan with her left hand and transferred it to her right hand. She held one vial at a time, shook it, flipped it, spun it, and looked for foreign objects. The timer would be hit twice and she mainly used her right hand to perform these tasks. She processed between 500 and 1200 units per day. The weight of her arms gave her shoulder and neck pain. To relieve discomfort, she rested her elbows on the counter or used an arm rest. Claimant worked eight to twelve hours per day, 40 hours per week while on light duty. When Claimant was not on light duty she worked up to 50 hours per week.

1. Claimant weighs between 480 pounds and 500 pounds and stands 5 foot six inches tall. Her weight issues have been ongoing most of her adult life. She had a permanent lifting restriction of eight pounds because of two non-operated hernias. At work Claimant had difficulty sitting on chairs, lowering chairs to avoid leg swelling, and walking to different rooms. While working on the line she propped her legs to reduce swelling which occurred frequently and made it difficult to walk, sit, or lift heavy items.

WC-32-R1 (6-81)

Page 7

1. After bilateral carpal tunnel releases, Claimant had decreased hand strength and difficulty grasping. She exercised her hands to relieve pain. She became an inspector because it was difficult to pull power packs and lift heavy items.
2. Claimant had frequent back pain. To relieve pain, she stood, walked and took medication. She missed work when her back "went out." Sitting long periods aggravated her back.
3. At work the lunch room, bathroom, and locker room were far from her work area. It was difficult to adhere to the three minute time allowed to move or stand to put on the required "booties." She could not go to one building as required because the Employer did not have the required uniform in her size. When her size was obtained, she had to stand and balance to put it on. Dr. Fitzgerald (her primary care physician), and the Dr. Griesbaum (her lung specialist) encouraged her to lose weight. Claimant was not successful in losing weights despite her efforts to modify her eating habits and increase her activity level.
4. When Claimant walks her knees ache and catch.
5. In 2012, Claimant sustained two hernias during the birth of her son. Claimant testified her doctor said the hernias can be repaired but would come undone due to the girth of her stomach. Also, surgery at Claimant's weight could be deadly. He recommended Claimant lose weight to have the surgery. She has tried to lose weight. She became vegan, vegetarian, and engaged in water aerobics. Her activity is limited because of the hernias. The only activity she could perform is in water, and other health conditions prevent her from getting in the water to exercise. A February 6, 2015 medical report from St. Anthony's Medical Center shows the following history from Claimant:

" 2 ventral hernias intermittently pop out and causes quite a bit of pain. interfering with work and has been sent home." (Exhibit 13, pg. 69).

Due to the hernias, Claimant has a permanent lifting restrictions of eight pounds.

1. Claimant was diagnosed with hypertension, diabetes, and poor heart function.

1. Claimant constantly took off work because of issues related to her weight. After her son was born in 2012, Claimant took off work because of her back, lungs, hernia and asthma. She received FMLA benefits for her back and asthma conditions.
2. For three years leading up to 2017, Claimant developed pneumonia at least once or twice a year and was hospitalized at St. Anthony's Hospital. Asthma makes it hard to breathe or walk very far. Dr. Griesbaum prescribes Singulair, Albuterol, Symbicort and Flonase which she takes daily for asthma.
3. In 2004, Claimant was diagnosed with bilateral carpal tunnel syndrome due to the repetitive nature of her work. Both wrists were surgically repaired and Claimant missed work for two months after the surgery. A hearing was held and she was awarded 17.5 percent permanent disability of each wrist for the medical conditions. Residual complaints included a loss of strength, and minimal swelling in her left hand. Her fingers will lock when she washes dishes. At work, her hands continued to bother her, and she took medication to gain relief. Her hands cramp when she writes letters.

One day at work Claimant noticed pain in her right forearm while shaking vials. She received medical treatment at BJC Care and an MRI was ordered. Dr. Brown injected Claimant's right elbow several times, diagnosed lateral epicondylitis, and released her from medical care in June 2017. Claimant received medical treatment four to five times.

Claimant did not return to work because of multiple health conditions, including problems with her lungs and the hernias. In addition, she had concerns about using her right arm at work. She was approved for social security disability benefits in October 2017.

It is painful to lift her stomach to shower and it is difficult to wash her hair. In the past, Claimant used her right arm muscle to lift. Now she has lost that ability. At home, minor tasks cause right arm pain and she has lost right arm strength. When lifting a gallon of milk her arm shakes. She uses both hands to move a skillet. She sits to mop but cannot squeeze the mop. She cannot clean the bottom of the tub or base of the toilet because she gets cramps in her stomach.

She sits in a rolling chair to cook and wash dishes. She cleans one room a day. She can only use a light vacuum. She takes the stairs one at a time and pulls herself up. Claimant takes mini breaks during the day. Her right forearm remains swollen. To relieve pain, she takes ibuprofen and naproxen.

She leans because her arms are heavy. If her arms dangle they hurt. It is painful to use her right arm to push up from a chair, tub or bed due to her weight. She is right handed. Claimant uses her right hand, but it is painful. If she fell, she could not get herself off the floor.

If she drives more than an hour her legs swell and she has right arm discomfort. To exit the car, she pulls on the door. She arrives early at the grocery store to secure one of the limited riding carts and pick up small items. Her family shops for large items. She cannot bend to lift because of cramps. Also, the hernia may pop out and cause a need for emergency surgery. The eight-pound lifting restriction is still in effect.

Claimant wakes about 5: 00 a.m. She makes coffee, prays, and prepares food and supplies for her children for the school day. Claimant does some work around the house. She lays down during the day due to leg swelling and fatigue. While Claimant elevates her legs she helps her son with school work.

On April 10, 2017, Claimant received initial treatment at Barnes Care for tenderness over the right epicondyle. An MRI dated April 25, 2017 was poor quality due to Claimant's body habitus. An MRI revealed a small partial tear of the radial collateral ligament. Dr. Brown examined Claimant's right elbow twice and diagnosed right lateral epicondylitis. Twice he injected Claimant's right extensor tendon, and recommended a home exercise program and a brace. He returned her to work full duty, no restrictions on June 12, 2017. (Exhibit 9, pg. 3). ${ }^{3}$ Dr. Brown did not provide a rating.

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[^0]: ${ }^{3}$ Dr. Brown's records note Claimant was to return for an appointment in six weeks. However, the record contains no evidence of an office visit after June 12, 2017.

Issued by DIVISION OF WORKERS' COMPENSATION

17-034007

On June 27, 2018, David Volarich, M.D. performed an independent medical examination. He reviewed Claimant's medical records, wrote a report and an addendum, and testified at the request of Claimant's attorney.

For the April 10, 2017 work injury, Dr. Volarich diagnosed overuse syndrome of the right elbow which caused lateral epicondylitis and a partial tear of the radial collateral ligament, status post non-operative treatment. Dr. Volarich rated 22.5 percent PPD of the right elbow for the work related injury.

Dr. Volarich diagnosed and rated the following disabilities that existed before April 10, 2017:

1. Bilateral carpal tunnel syndrome, surgically repaired - 17.5 percent PPD of each wrist, and
2. Morbid obesity - 65 percent PPD of the body as a whole for morbid obesity and related medical conditions, including diabetes, restrictive lung disease, sleep apnea, ventral hernia, hypertension, and pain in her back and bilateral knees. Dr. Volarich testified he believes Claimant's morbid obesity is permanent.

Dr. Volarich concluded Claimant performed repetitive activities when she inspected injectors. He noted Claimant held injectors at work, manipulated them in her hands, and flexed and extended her elbow 500 to 1000 times per day. He opined the repetitive activities caused right lateral epicondylitis and a partial ligament tear that required medical treatment and resulted in disability.

Dr. Volarich found a synergistic impact between Claimant's primary injury to her right elbow and her pre-existing disability from her bilateral hands, and morbid obesity and related medical conditions. Further, Dr. Volarich concluded the combination of Claimant's injuries creates more disability than their sum, and a loading factor should be applied.

Dr. Volarich imposed the following right arm restrictions: Use proper form, avoid awkward positions away from the body, minimize repetitive pinching, gripping, pulling, squeezing type actions, avoid impact and vibratory trauma, use braces, anti-vibration gloves and support braces, limit weight to five pounds unsupported and away from the body, and 15 pounds supported.

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For Claimant's bilateral hands, Dr. Volarich imposed the following restrictions: avoid using hands in a blind awkward manner, avoid repetitive squeezing, pinching, gripping activities, use proper ergonomic form, avoid impact and vibration, use braces, anti-vibration gloves, and support straps.

For Claimant's weight Dr. Volarich imposed the following restrictions; stay active, limit lifting to 20 pounds. They discussed bariatric surgery, which Claimant expressed an interest in getting once she received Medicare. Her current insurance did not cover it.

For future medical care for Claimant's right upper extremity, Dr. Volarich recommended home exercises, over the counter medication for pain, and aquatic exercise.

During cross-examination, Dr. Volarich testified Claimant's pre-existing disabilities contributed to her right arm problems; such as getting up from a chair, getting out of bed, and leaning on a counter to cook. He deferred to a vocational expert about Claimant's ability to work.

After a review of Claimant's deposition and Mr. Lalk's report, Dr. Volarich wrote an addendum dated December 17, 2019, and concluded Claimant was PTD due to the April 10, 2017 work injury and her pre-existing disabilities. (Exhibit 3) Dr. Volarich opined Claimant reached MMI on June 2, 2017.

During direct examination, Dr. Volarich's testified as follows:

Q. Okay. With regard to your opinions - and you talked about the synergistic effects and the combination. With regard to the changes in the statute since 2014 and the language now is -- do you have an opinion as to whether her comorbidities significantly aggravated her right upper extremity --and I point you to where you talked about having to lean forward to do the cooking, difficulties with the physical therapy, difficulties with rehabilitation. Do you have an opinion, within a reasonable degree of medical certainty, as to whether or not her comorbidities significantly aggravated her right upper extremity?

A. I think from what you just asked me, I think they would. She just can't use it as effectively.

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On December 17th of 2019, Mr. Timothy Lalk, a vocational rehabilitation counselor, interviewed Claimant, reviewed medical records, wrote an opinion, and testified at the request of Claimant's attorney. Mr. Lalk did not administer academic tests because Claimant demonstrated she could be promoted and perform supervisory and management work.

Mr. Lalk concluded Claimant could not secure and maintain employment based on medical opinions from Drs. Griesbaum, Fitzgerald, and Volarich, Claimant's interview with Mr. Lalk and his observations during the interview. He opined employers would not hire Claimant based on her body habitus and the risk factors associated with her morbid obesity. Mr. Lalk's opinion remained unchanged after reviewing Claimant's deposition.

Mr. Lalk identified the following pre-existing conditions and testified they were a hindrance or obstacle to Claimant's employment before her work injury on April 10, 2017; hernias, respiratory problems and morbid obesity.

For purposes of calculating PTD benefits, "[a] claimant's preexisting disabilities are irrelevant until [the] employer's liability for the last injury is determined." *Gleason v. Treasurer of State of Missouri-Custodian of Second Injury Fund*, 455 S.W.3d 494, 498 (Mo. App. 2015). Before the Fund will be liable for PTD benefits, the claimant must establish first the extent or percentage of the PTD resulting from the last injury alone and then the combination of the last injury and a prior PPD resulted in permanent and total disability. *Lawrence v. Treasurer of State—Custodian of 2nd Injury Fund*, 470 S.W.3d 6, 14 (Mo. App. 2015).

Section 287.020.6 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." Section 287.020.6 (emphasis added). "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. 2013).

Section 287.220.3 provides:

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(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 § 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 ... Mo. Ann. Stat. § 287.220.

(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.

Section 287.220.3(1) applies to "[a]ll claims against the second injury fund for injuries occurring after January 1, 2014." (Emphasis added). Section 287.020.3(1) defines "injury" to mean "an injury which has arisen out of and in the course of employment." When the legislature provides a statutory definition, it "supersedes the commonly accepted dictionary or judicial definition and is binding on the courts." *Cosby v. Treasurer of State*, 579 S.W.3d 202, 207-08 (Mo. 2019). *State ex rel. Jackson v. Dolan*, 398 S.W.3d 472, 479 (Mo. banc 2013). Section 287.020.3(5) further provides the term "injury" means "violence to the physical structure of the body." *Id.*

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Recently, the Missouri Supreme Court held that Section 287.220.3, amended in 2013, "applies to all PTD or [Permanent Partial Disability ('PPD')] claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014." *Bennett v. Treasurer of State*, 607 S.W.3d 251, 255 (Mo. Ct. App. 2020). (Citations omitted) Provisions of the workers' compensation statutes must be strictly construed. Section 287.800. (1-2).

Under Section 287.220.3, a PTD claim against the Fund..., shall be compensable when a subsequent compensable work-related injury combines with a qualifying pre-existing disability and results in Claimant becoming PTD. Section 287.220.3(2) and *Bennett v. Treasurer of State*, 607 S.W.3d 251, 255-56 (Mo. Ct. App. 2020).

The relevant test for permanent total disability is whether a claimant can compete in the open labor market. *Brashers v. Treasurer*, 442 S.W.3d 152, 162 (Mo. App. 2014). The key question is whether an employer in the ordinary course of business would reasonably be expected to hire the worker in her current physical condition and reasonably expect the worker to perform the work required. *Id.* (Citations omitted) Neither the worker's ability to engage in occasional or light duty work nor the worker's good fortune to obtain work other than through competition in the open labor market should disqualify the worker from permanent total disability benefits. *Id.* Unless a claimant is able to perform the usual duties of a job in the manner that such duties are customarily performed by the average person engaged in such employment, she is not considered employable. See *Kowalski v. M-G Metals and Sales, Inc.*, 631 S.W.2d 919, 922 (Mo.App.1982).

The Workers' Compensation Law distinguishes between two general categories of compensable injuries: (1) injuries by accident; and (2) injuries by occupational disease. *State ex rel. KCP & L Greater Missouri Operations Co. v. Cook*, 353 S.W.3d 14, 18 (Mo. App. 2011).

4 Several cases in this award may have been overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 223 (Mo. Banc 2003). No further reference will be made to the *Hampton* decision in this award.

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Section 287.220.3 applies to all [permanent total disability] or [permanent partial disability] claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014. Dubuc v. Treasurer of State - Custodian of Second Injury Fund, 597 S.W.3d 372, 379 (Mo. App. 2020).

The legislature then specifically uses the term "subsequent compensable injury" in its limitation of Fund liability for occupational disease in Section 287.220.3(1). Coffer v. Treasurer of State, 598 S.W.3d 909, 914 (Mo. Ct. App. 2020). The plain language of subsection 3(1) simply, if less than artfully, limits the Fund's liability for all claims for any injuries, both accidental and occupational, which occurred after January 1, 2014. Id. at 914.

Section 287.020.3(1) and section 287.020.3(5) are not incongruent and instead work in harmony. Section 287.020.3(1) provides that "the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment." (Emphasis added.) Section 287.020.3(5) provides that the term "'injury' ... shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body...." Read together, "injury" as defined in section 287.020.3(1) means "[violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body] which has arisen out of and in the course of employment." Cosby correctly concluded, therefore, that the term "injury" as used in sections 287.220 .2 and .3 refers to injuries arising out of and in the course of employment. Dubuc, 597 S.W.3d at 382.

Section 287.808 States: The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

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At the start of the hearing the parties stipulated Claimant's right lateral epicondylitis arose out of and in the course of her employment on April 10, 2017. Therefore §287.220.3 applies to determine if the Fund is liable for PTD benefits.

Dr. Brown saw claimant twice, diagnosed right epicondylitis, injected her elbow twice, and released her at MMI on June 2, 2017. Dr. Volarich's IME revealed decreased right arm strength 4/5, compared to the left at 5/5 strength. He rated 22.5 percent PPD for Claimant's right elbow for the injury. Claimant's testimony is credible that she has swelling around her right elbow, and difficulty holding skillets and pushing up from a chair or bed with her right arm. She rests her right arm on her stomach to avoid pain if it hangs. Weather, small tasks and leaning on her elbow cause pain.

Based on credible testimony by Claimant, medical records in evidence, and Dr. Volarich's persuasive IME opinion, Claimant met her burden to prove she sustained 10 percent PPD of the right elbow for the subsequent compensable injury on April 10, 2017. Further, Claimant met her burden to prove her primary injury alone did not cause her to be PTD.

Claimant met her burden to prove she sustained two pre-existing disabilities that qualified as compensable injuries under §287.220.3 (2); bilateral carpal tunnel syndrome and morbid obesity with associated medical conditions. Only theses disabilities can be considered in determining Fund liability for PTD benefits.

Claimant proved her bilateral carpal tunnel syndrome is a medically documented preexisting disability. The Fund's contention is not persuasive that Claimant's bilateral carpal tunnel syndrome represents separate injuries, therefore do not reach the 50 week statutory requirement. Applying strict construction, § 287.220.3. (2) (a) requires "a medically documented pre-existing disability equaling a minimum of fifty weeks of permanent partial disability..." Unlike §287.220.2, §287.220.3. (2) (a) does not impose a "body as a whole" or "major extremity requirement on the fifty weeks of pre-existing disability. At Claimant's

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hearing in 2006, the undersigned ALJ awarded Claimant 17.5 percent PPD of each wrist for bilateral carpal tunnel syndrome, which continues to exist.

In 2018, Dr. Volarich diagnosed bilateral carpal tunnel syndrome as one of Claimant's pre-existing disabilities before April 2017, and rated 17.5 percent PPD of each wrist. Claimant's testimony is credible that she has decreased grip strength, aching in both forearms to the elbow, inability to lift her nieces and nephews, and occasional finger locking and tenderness along the scar line. Claimant stopped wearing shoes with laces to avoid the hassle of tying them. At work she changed departments in order to work at a slower pace. Claimant met her burden to show the pre-existing carpal tunnel syndrome equals 30.625 weeks of disability per wrist for a total of 61.25 weeks, which exceeds the statutory requirement of fifty weeks. Claimant's bilateral carpal tunnel syndrome is a medically documented preexisting disability.

a. Claimant's pre-existing bilateral carpal tunnel disability is a direct result of a compensable injury under Section 287.020.

The Fund contends Claimant's hand injuries do not qualify as a pre-existing disability under §287.020.3(a) ii. In support of this position, the Fund relies on Section 287.020.3(5) for the proposition that occupational disease injuries are excluded. Section 287.020.3(5) defines "injury" as:

> "[A]n injury that arises out of and in the course of employment. Occupational disease injuries were excluded, except as provided for under the Act. (Emphasis added)

Section 287.067 is a part of the Act and defines "occupational disease" as an identifiable disease arising with or without human fault out of and in the course of the employment. Based on strict construction of the statute, occupational disease injuries are provided for under the Act, therefore, they are not excluded from the Act. During the hearing in 2006, the parties, including the Fund, stipulated that Claimant sustained bilateral carpal tunnel injuries that arose out of and in the course of her employment in 2002.

Dr. Volarich's testimony is persuasive and consistent with Claimant's testimony that her right upper extremity complaints included pinch and grip strength deficiencies related to carpal tunnel syndrome. Dr. Volarich's examination revealed a 15% decrease in adduction and opposition of the right thumb compared to the left, right elbow pain with palpation and resisted

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right wrist extension, and decreased range of motion on supination. Claimant credibly testified she mainly used her right hand to shake, flip, and spin hundreds of vials of drugs per day over a period of time. She developed right elbow pain. After bilateral carpal tunnel surgeries, Claimant had decreased hand strength and difficulty grasping. She exercised her hands to relieve pain. At work, Claimant became an inspector because it was difficult to pull power packs and lift heavy items as an assembler. Based on this evidence, Claimant met her burden to show her pre-existing carpal tunnel syndrome is a direct result of a compensable injury under §287.020.

b. Claimant's pre-existing morbid obesity is not a compensable injury, but it directly and significantly aggravates or accelerates the subsequent work-related injury and does not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury

In the alternative, Claimant proved her morbid obesity is a medically documented preexisting disability. Dr. Volarich rated 65% PPD of the body as a whole for morbid obesity and related health conditions, including sleep apnea, restrictive lung disease, back and bilateral knee pain, hypertension, diabetes, and ventral hernia.

Claimant credibly testified that after the birth of her son in 2012, she missed work because of problems with her back, lungs, asthma and two hernias. She used FMLA leave for her back and recurrent bouts of pneumonia. Claimant had a permanent eight-pound lifting restriction because of the hernias, which prevented her from changing jobs at work. At the time of the 2020 hearing, Claimant's lifting restriction remained in place. Claimant testified the hernias cannot be repaired until she loses weight, which she has been unable to do despite her efforts.

Claimant credibly testified she has been overweight most of her adult life. Claimant testified she weighed 320 pounds when she first started working for the Employer. During the hearing in 2006, Claimant estimated her weight to be 400 pounds. During the hearing in 2020, Claimant testified she weighed between 480 and 500 pounds.

At the hearing, Claimant testified about the daily challenges she faces because of her weight when she uses her right elbow to get out of bed, a chair or the tub. She is right handed. Before her elbow injury, Claimant used her right arm to lift, now it is painful to do so. Claimant cannot clean the bottom of the tub or base of the toilet because she gets cramps in her stomach.

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It is difficult for Claimant to shampoo her hair, lift her stomach in the shower or squeeze a mop. She leans because her arms are heavy. Claimant rests her right arm on her stomach to avoid pain if it dangles.

The Fund's contention is not persuasive that Dr. Volarich did not explain how Claimant's pre-existing disabilities aggravated or accelerated her right elbow injury. Dr. Volarich credibly explained that Claimant's bilateral hands and morbid obesity significantly aggravate her right upper extremity and make it more difficult to use her right arm. Claimant told Dr. Volarich that rehabilitation of her right elbow was difficult because of symptoms related to morbid obesity and bilateral carpal tunnel syndrome. Dr. Volarich reported Claimant weighed over 500 pounds with a BMI of 79.5 and she stood 5 feet, six and a half inches tall. He related the following health conditions to Claimant's morbid obesity; sleep apnea, restrictive lung disease, back and bilateral knee pain, ventral hernia, hypertension, and diabetes. Dr. Volarich believed Claimant's morbid obesity was a permanent condition.

Based on Claimant's testimony and Dr. Volarich's persuasive medical opinion, Claimant met her burden to prove her pre-existing morbid obesity directly and significantly aggravated or accelerated her right elbow injury pursuant to §287.220.3.(a) iii. In the alternative, Claimant met her burden to prove her morbid obesity is a medically documented preexisting disability that does not include unrelated preexisting injuries that do not aggravate or accelerate her right elbow injury.

1. Claimant's right elbow injury combines with her pre-existing bilateral carpal tunnel syndrome and/or morbid obesity to render her permanently and totally disabled

Claimant asserts she is PTD due to the subsequent injury to her right elbow and her preexisting disabilities from her hands and morbid obesity. The Employer asserts liability for PPD benefits only. The Fund contends Claimant does not have a qualifying preexisting injury as required by §287.220.3. The Fund's contentions were persuasive for the reasons discussed above.

During cross-examination, Claimant testified she did not return to work because of problems with her lungs, hernia and concern she may need surgery if she returned to work as an inspector. She could not work as an assembler due to the eight-pound lifting restriction imposed.

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before her right elbow injury, and her slower work pace after carpal tunnel syndrome. Leading up to April 17, 2017, Claimant testified she had problems with hypertension, diabetes, her heart and asthma. Three consecutive years she was hospitalized for pneumonia. In addition, she is concerned about the hernia popping out because it could be life threatening. During Claimant's testimony, I observed Claimant stand temporarily due to back pain and cry as she described her limitations.

Dr. Volarich identified two pre-existing disabilities; bilateral carpal tunnel syndrome and morbid obesity, and deferred to a vocational expert about Claimant's ability to work. Given Claimant's age, 47, Dr. Volarich was willing to consider sending Claimant back to work, if the vocational expert identified work she could do.

However, based on Dr. Volarich's restrictions for Claimant's hands, right elbow and weight, Mr. Lalk did not recommend work or vocational rehabilitation. Mr. Lalk concluded Claimant was permanently and totally disabled as a direct result of her work related injury of April 10, 2017 and her preexisting medical conditions.

Mr. Lalk would consider employment for Claimant if she changed her physical presentation and increased her level of activity. Based on Claimant's presentation, Mr. Lalk did not believe employers would hire her. Further, employers would not be willing to accommodate the amount of absences Claimant would need take, the need to control her symptoms, elevate her legs, avoid standing and walking, and rest as needed.

Mr. Lalk concluded Claimant cannot secure and maintain employment in the open labor market and would not be able to compete for any position. He noted that Drs. Volarich, Griesbaum, and Fitzgerald gave restrictions consistent with the symptoms and limitations Claimant reported to him. Mr. Lalk testified the following medical conditions were a hindrance to Claimant's employment before April 2017; two hernias, respiratory problems, and morbid obesity. He noted Claimant did not report hand complaints to him.

Based on Mr. Lalk's vocational opinion, Dr. Volarich credibly concluded Claimant was PTD due to her right elbow injury and pre-existing disabilities. Based on credible testimony by Claimant, Dr. Volarich and Mr. Lalk, Claimant met her burden to prove she is PTD due to her

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Subsequent right elbow injury and her pre-existing bilateral carpal tunnel syndrome and morbid obesity with related medical conditions.

In cases of permanent total disability [y], payment should begin when the disability begins. *Kramer v. Labor & Indus. Relations Commission*, 799 S.W.2d 142, 145 (Mo. App. 1990).

Here, the parties stipulated Claimant reached MMI on June 12, 2017. Therefore, Claimant reached MMI on that date. Claimant became PTD on June 13, 2017 and benefits should have begun on that date. As discussed above, Claimant sustained 10 percent PPD of the right elbow, which Employer is liable to pay. During the Employer's 21 week payment the Fund is not liable for a weekly differential payment, as the parties stipulated Claimant's rate of compensation is 477.73 per week for all benefits. The Fund's liability is 477.73 per week, commencing 21 weeks after Claimant became PTD, and continuing for the remainder of her life. *Laturno v. Carnahan*, 640 S.W.2d 470, 472 (Mo. Ct. App. 1982).

After careful consideration of the entire record, based on Claimant's demeanor during the hearing, competent and substantial evidence presented on the record, and the applicable law of the State of Missouri, Claimant met her burden to prove she is PTD for the reasons stated below:

1. Claimant's testimony is credible.
2. The Employer is liable for 10 percent PPD of Claimant's right elbow.
3. Claimant sustained medically documented pre-existing disabilities to her bilateral hands and morbid obesity, which includes related medical conditions.
4. Claimant's pre-existing disabilities do not include unrelated preexisting injuries or conditions that do not aggravate or accelerate her subsequent work-related injury.
5. Claimant is PTD due to a combination of her subsequent compensable injury and pre-existing disability.
6. The Fund is liable for PTD benefits in accordance with this award.

1. Claimant's attorney is entitled to attorney fees consistent with this award for legal services rendered.

I certify that on _1-26-21_

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.

By ____________________________


Suzette Carlisle

Made by: Flowers

Suzette Carlisle Flowers

14:15:06-06'00'

Administrative Law Judge

Division of Workers' Compensation