Theresa Thompson v. CSI Commercial Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 10-087819

**Employee:** Theresa Thompson

**Employer:** CSI Commercial Services, Inc.

**Insurer:** Oak River Insurance Company C/O Berkshire Hathaway Homestate Insurance

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 1, 2022. The award and decision of Administrative Law judge Jason A. Tilley, issued March 1, 2022, is attached and incorporated by this reference.

The Commission further approves and affirms 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 **14th** day February of 2023.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Rodney J. Campbell, Chairman

**VACANT**

Member

Kathryn Sivan, Member

Attest:

*Jenita S. Hogg*

Secretary

**Claimant:** Theresa M. Thompson

**Dependents:** N/A

**Employer:** CSI Commercial Services, Inc.

**Additional Party:** Second Injury Fund

**Insurer:** Oak River Insurance Company C/O Berkshire Hathaway Homestate Insurance

**Hearing Date:** November 16, 2021

**Injury No.:** 10-087819

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** JAT

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: On or about July 20, 2010
5. State location where accident occurred or occupational disease contracted: St. Louis County, Missouri
6. Was above Claimant in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work Claimant was doing and how accident happened or occupational disease contracted: Claimant was lifting and shelving copper coils.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Parts of body injured by accident or occupational disease: Low back, body as a whole
14. Compensation paid to-date for temporary disability: 19,043.04
15. Value necessary medical aid paid to date by Employer? 223,372.27
16. Value necessary medical aid not furnished by Employer? 0.00
17. Claimant's average weekly wages: $644.69

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Said payments to begin immediately 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 attorneys for necessary legal services rendered to the Claimant: Candace Burke

Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 10-087819

Claimant: Theresa M. Thompson

Dependents: N/A

Employer: CSI Commercial Services, Inc.

Additional Party: Second Injury Fund

Insurer: Oak River Insurance Company C/O Berkshire Hathaway Homestate Insurance

Hearing Date: November 16, 2021

injury No.: 10-087819

Before the Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: JAT

Claimant, Theresa Thompson, (hereinafter "Claimant") requested a hearing for a final award to determine the liability of CSI Commercial Services, Inc. (hereinafter "Employer") for permanent partial disability ("PPD") benefits for an injury alleged on July 20, 2010 while at work and the liability of the Second Injury Fund for PPD benefits or permanent total disability ("PTD") benefits.

On November 16, 2021, Claimant appeared in person and by counsel, Attorney Candace Burke, at the Missouri Division of Workers' Compensation office in St. Louis. Employer was represented by Donald Balfour. The Second Injury Fund appears in person, through its attorney, Kristin Frazier. The Division has jurisdiction to hear this case pursuant to Section 287.110 RSMo. Claimant's counsel requested twenty-five percent (25%) of the amount awarded to Claimant herein as and for his attorney's fees.

These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth as follows:

1. Claimant was operating under and subject to the Provision of Missouri Workers' Compensation Act, and the Employer's Workers' Compensation liability was fully insured by Oak River Insurance Company C/O Berkshire Hathaway Homestate Companies;

1. On or about July 20, 2010, Claimant was employed by CSI Commercial Services, Inc. and was working under the Missouri Workers' Compensation Act;

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

1. On or about July 20, 2010, Claimant sustained an accident arising out of and in the course of her employment. The accident occurred within St. Louis County, State of Missouri;

1. Venue is proper in the City of St. Louis, Missouri;

1. Employer had proper notice of Claimant's accident within the time frame specified under the Missouri Workers' Compensation Act.

1. Claimant's claim was filed within the time required by law.

1. At all relevant times, Claimant earned an average weekly wage of 644.69, resulting in applicable rates of compensation of 429.79 for any temporary total disability benefits and possible permanent total disability benefits and $418.58 for permanent partial disability benefits.

1. The Employer paid medical benefits totaling 223,372.27.

1. Employer paid 19,043.04 of temporary total disability benefits from October 28, 2010, through August 30, 2011. There was an underpayment of $1,482.97 in temporary total disability benefits paid from October 28, 2010, through August 30, 2011.

ISSUES:

1. Whether Claimant is entitled to additional temporary total disability benefits after temporary total disability benefits were terminated on August 30, 2011;

1. Whether Claimant is entitled to any additional past medical treatment that Employer should be responsible for;

1. Future medical treatment;

1. Liability of Employer for permanent partial disability or permanent total disability;

1. Liability of Second Injury Fund for permanent partial disability or permanent total disability.

The parties offered the following exhibits, which were received into evidence:

Claimant's List of Exhibits:

1. Medical Records- Mercy Clinic Family Medicine-Hazelwood

1. Medical Records- SSM Physical Therapy

1. Medical Records- Metro Imaging

1. Medical Records- Mid County Orthopedic Surgery-Dr. Daniel Sohn

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

1. Medical Records- Dr. Lukasz Curvlo

1. Medical Records- St. Louis Spine Care Alliance- Dr. D. Robson and Dr. P. Hurford

1. Medical Records- St. Louis Spine and Orthopedic Center

1. Medical Records- Comprehensive Spine Care - Dr. David Robson

1. Medical Records- Professional Imaging

1. Medical Records- The Work Center

1. Medical Records- BJC Medical Group - Dr. Nancy Maebe

1. Medical Records- Dr. James Coyle

1. Medical Records- St. Luke's Hospital

1. Medical Records- Pain Management Services- Dr. Gregory Smith

1. Medical Records- Aquatic Fitness, Inc.

1. Medical Records- SSM Medical Group - Dr. Chad Smith

1. Deposition of Dr. David T. Volarich with Exhibits 1-5

1. Deposition of Ben Hughes with Exhibits 1-3

1. Deposition of Dr. James Coyle taken on 8/19/2016 with Exhibits A-C

1. Report of Injury

Employer's/Insurer's List of Exhibits:

A. Missouri Division of Employment Security Unemployment File

B. Social Security Disability Award

C. Dr. Robson's Medical Records and Reports through September 12, 2012

D. Athletico Work Center FCE prepared for Dr. Robsen

E. Dr. James Coyle Medical Records

F. Aquatic Fitness Records

G. Dr. Coyle Deposition August 9, 2016 with Exhibits A-C

H. Dr. Coyle Deposition May 24, 2018 with Exhibit D

I. Delores Gonzales Deposition February 19, 2021 with Exhibits 1-3

All Objections not previously sustained are overruled as waived. Jurisdiction in the Forum is authorized under Section 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

Claimant testified that she began her employment with the employer as a parts manager in August 2008. Her job duties included inventory, compiling reports and some physical labor emptying vans within the warehouse.

Claimant testified she injured her low back on July 20, 2010, when she was putting copper coils onto shelves overhead and the weight of the copper coils shifted pushing her down and she noted the immediate onset of pain and symptoms in her low back.

Claimant reported her injury to the office manager Shelley. Claimant took a few days off of work. The following week Claimant returned to work but her back pain and lower extremity symptoms continued. She spoke to Brad Earhart, the President of the employer. He told her to go see a doctor.

Claimant initially saw her primary care physician, Dr. Mulford, who diagnosed her with a low back strain and referred her for pain management to Dr. Sohn and some physical therapy. Dr. Sohn gave Claimant a few steroid injections which only gave Claimant temporary relief. Dr. Sohn then told Claimant to go see an orthopedic surgeon.

Claimant testified she spoke to President Brad Earhart about the orthopedic surgeon recommendation. Claimant was referred by the employer to see orthopedic surgeon Dr. David Robson. Claimant received her weekly salary wage from the employer from the July 20, 2010, work injury through October 28, 2010. Claimant commenced receiving temporary total disability payments on October 28, 2010.

Claimant testified Dr. Robson indicated she had a bulging disc at L2-L3 and needed a surgical fusion at the L2-L3 level of her spine due to a bulging disc.

Claimant testified she underwent a surgical fusion at the L2-L3 level of her spine by Dr. Robson on March 7, 2011. Claimant testified Dr. Robson's surgery did not relieve her back pain and numbness and tingling in her lower extremities.

Claimant testified Dr. Robson then had an EMG test performed on her lumbar spine regarding her lower extremity complaints. Claimant said Dr. Robson indicated her symptoms were coming from the L5-S1 level of her lower back. (Note: Dr. Robson opined in his reports that Claimant's continuing complaints following the March 7, 2011, surgery were related to chronic changes at the L4-5 and L5-S1 level which were degenerative in nature and were not

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acutely injured during the work-related injury of July 20, 2010). Claimant testified Dr. Robson had her undergo a nerve root injection which she said only gave her temporary relief.

Claimant testified that Dr. Robson sent her for an FCE (Note: the FCE was done at the Work Center on August 1, 2011, and showed Claimant was capable of working at a light to medium physical demand level; Employer exhibit D).

Claimant testified Dr. Robson found her at maximum medical improvement as to the L2-L3 work related injury on August 18, 2011, and released her from care with work restrictions of lifting 30 pounds occasionally, 20 pounds repetitively, and no repetitive bending, stooping or twisting at the waist.

Claimant testified she called Brad Earhart, the President of the employer. Claimant testified they agreed she would not be able to continue working for the employer due to the work restrictions of Dr. Robson. (Note: temporary total disability benefits were terminated as of August 30, 2011, due in part to the MMI report of Dr. Robson). Claimant testified she applied for and commenced receiving unemployment benefits from Missouri upon the termination of her TTD benefits and received unemployment benefits from September 2011 through December 2012.

Claimant testified that she began a job search through the Missouri Division of Unemployment, Monster, Indeed and the Job Center for jobs that do not require physical labor due to her ongoing low back pain and bilateral leg pain, numbness and tingling. She testified that she applied for between 100 and 200 jobs but was not successful in finding any job position that she could fill with her restrictions. She did not provide a list of any jobs she allegedly applied for. She testified since she left the employer she has been unable to find a job and has not worked to date.

Claimant testified that when her unemployment benefits terminated in December 2012, she, at the urging of a few individuals including her primary care physician Dr. Maebe, applied for Social Security Disability benefits. She testified she alleged she was disabled due to back pain, surgery, pain, anxiety, and depression. Claimant testified she was awarded Social Security Disability benefits as of January 8, 2013, and has received Social Security Disability benefits to date. (Employer exhibit B)

Claimant testified that she last saw Dr. Robson in 2013. She testified she was referred by Workers' Compensation to see Dr. James Coyle for evaluation (note: the two examinations

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occurred in May and June 2013). Claimant testified that Dr. Coyle told her she had a torn disc at L5-S1 but he did not provide her any treatment.

Claimant testified that from 2013 through 2016 she saw her primary care physician for pain medications regarding her lower back and bilateral leg pain. She testified she continued her job search but was unable to locate any jobs. Claimant did not name any jobs or provide a list of any jobs she allegedly applied for.

Claimant testified she was sent back by the Employer to see Dr. Coyle in 2016. Dr. Coyle recommended diagnostic injections at the L5-S1 level. She testified she got temporary relief following the injections from her low back and bilateral radicular complaints. Dr. Coyle then recommended she undergo surgery at the L5-S1 level. Claimant underwent the recommended and authorized surgical fusion at the L5-S1 level by Dr. Coyle on May 22, 2017.

Claimant testified that following the May 22, 2017, surgical fusion she received postsurgical care at the direction of Dr. Coyle through November 30, 2017, including aqua and land based physical therapy at the Aquatic Fitness Center.

Claimant testified that she had ongoing complaints of back pain and left leg radicular pain and complained to Dr. Coyle about her ongoing low back and radicular problems.

Claimant testified that she told Dr. Coyle during the post-operative care and physical therapy that she wanted to go back to work and did not want stay on disability.

Claimant testified that Dr. Coyle released her to return to work on a November 30, 2017, with restrictions of 30 pound lifting occasionally and 20 pounds frequently.

Claimant testified that she has not conducted a job search since Dr. Coyle released her on November 30, 2017. She testified she cannot work due to back pain and lower extremity radicular pain and numbness. She testified she has ongoing pain when she to sit or walk for extended periods of time. She testified she cannot drive a car very far from her home because of her lower extremity pain and numbness. She testified she is very limited in her daily life in terms of going anywhere, doing shopping and in her daily existence including house cleaning and activities around her home. She denied her vocational specialist Kaver's testimony that she told him she had to rest in a reclining position for most of the day.

Claimant testified that since Dr. Coyle released her she sees her primary care physician, Dr. Smith, for treatment, medications, and prescriptions for both her pre-existing depression and her back injury. She testified she would like pain management treatment and aqua therapy for the back injury but it is too expensive.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

Prior injury

Claimant testified that she was diagnosed with depression and anxiety in 2000 before her July 20, 2010 work injury. Her primary care physician referred her to a psychiatrist for one examination in early 2000. Claimant testified she was prescribed Xanax and Effexor in early 2000 for her depression and anxiety and continues to take these medications to date. She testified she was fully employed before her July 20, 2010 work injury and her pre-existing diagnoses of depression and anxiety and the pain medication she had been taking from 2000 until the July 20, 2010 work injury did not affect her ability to work before the July 20, 2010 work injury.

Post primary injury history

Claimant testified that in approximately 2018 she was diagnosed with chronic obstructive pulmonary disease. Claimant was prescribed an inhaler by Dr. Chad Smith after pulmonary function tests in 2018 which she utilizes to date.

Claimant first requested, through her attorney, additional medical treatment more than three years after she was released from care by Dr. Coyle due to an alleged onset of pain while decorating a Christmas tree. That request was refused.

MEDICAL RECORDS AND OPINIONS

Medical Summary of Dr. David Robson

Dr. David Robson, a board-certified orthopedic surgeon, first saw Claimant on January 26, 2011 for examination purposes.

Claimant gave a history of a low back injury on July 20, 2010, while she was shelving copper tubing. She had complaints of low back pain and bilateral leg pain which she related to the July 20, 2010 work injury. Prior to seeing Dr. Robson she had been treated conservatively by Drs. Mulford and Sohn and she had undergone some physical therapy.

Dr. Robson clinically examined Claimant and reviewed a September 2, 2010 MRI. He scheduled a CT scan of the lumbar spine. In his initial January 26, 2011 report he indicated the July 20, 2010 work incident was the prevailing factor in Claimant's low back symptoms and need for treatment. (Employer exhibit C, page 71).

Dr. Robson next saw Claimant following a CT scan of her lumbar spine on February 10, 2011. Dr. Robson, after reviewing the CT scan along with the MRI and clinically examining Claimant, made a diagnosis of a disc bulge with stenosis and radiculopathy at the L2-3 level of Claimant's lumbar spine. Dr. Robson recommended Claimant undergo a laminectomy and

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fusion with fixation at the L2-3 level. He indicated the July 20, 2010 work injury was the prevailing factor in Claimant's need for surgery who he noted failed conservative treatment. (Employer exhibit C, page 66.) Claimant underwent a laminectomy and fusion at the L2-3 level of her lumbar spine by Dr. Robson on March 7, 2011.

Dr. Robson saw Claimant for post-surgical treatment on April 7, 2011, and May 10, 2011. Claimant had continuing complaints of numbness and pain in her left leg. Dr. Robson had Claimant start physical therapy. (Employer exhibit C, page 60).

Dr. Robson had Claimant undergo an EMG/Nerve Conduction Study of her lumbar spine on June 21, 2011. He clinically examined Claimant following the EMG/Nerve Conduction Study which he indicated showed left L5 radiculopathy. He noted that the September, 2010 MRI along with the June, 2011 MRI showed degenerative changes at the L4-5 and L5-S1 level. He made a diagnosis of a healing fusion at L2-3 with left L5 radiculopathy. He noted the reason for the L5 radiculopathy is "likely a combination of the facet changes at L4-L5 and L5-S1 which are degenerated in nature." (Employer exhibit C, page 43).

Dr. Robson recommended Claimant undergo a left L5 selective nerve root block. Dr. Robson next saw Claimant on July 20, 2011. The L5 injection Claimant underwent got rid of her low back pain and left leg pain for a few hours. Dr. Robson made a diagnosis of a healed fusion at the L2-3 level with a left L5 radiculopathy. (Employer exhibit C, page 40).

Dr. Robson ordered an FCE with reference to the L2-3 surgical fusion. Claimant underwent an FCE on August 1, 2011, at the Work Center. (Employer exhibit D) Dr. Robson reviewed the FCE at an August 18, 2011, examination of Claimant. Dr. Robson noted the FCE evaluation indicated Claimant could "work in the light to medium work range, which would be 30 pounds occasional and 20 pounds repetitive lifting limit. No repetitive bending stooping twisting or awkward positions." (Employer exhibit C, page 36).

Dr. Robson, following the August 18, 2011 examination and review of the FCE, noted that:

"my impression is that she had a work-related injury, sustained a herniated disc at L2-3 underwent a surgical procedure and at this point is at maximum medical improvement; she does have a left L5 radiculopathy as evidenced by EMG/nerve conduction study; but in my opinion, as it has been in the past, her L4-5 symptoms are unrelated to the work-related

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Injury No.: 10-087819

incident. I would recommend the treatment for that would be unrelated to the work-related accident of July 20, 2010." (Employer exhibit C, page 36)

Dr. Robson, after finding Claimant at maximum medical improvement on August 18, 2011, and specifying work restrictions regarding the L2-3 surgery, issued a September 12, 2011 letter noting that Claimant was at maximum medical improvement when he released her on August 18, 2011. Dr. Robson opined that the July 20, 2010 work injury caused 10% permanent partial disability to Claimant. He noted Claimant had persistent pain complaints related to her L4-5 level which "I do not feel falls under her work-related injury". Dr. Robson gave work restrictions of 50 pounds weight lifting limit on an occasional basis and 35 pounds on a more repetitive basis. Dr. Robson noted that Claimant "underperformed on the functional capacity evaluation and gave a sub maximum effort in several instances". (Employer exhibit C, page 33)

Claimant, with continuing complaints of low back and left leg pain, followed up with Dr. Robson on October 12, 2011 and January 30, 2013. Dr. Robson recommended Claimant undergo a CT Myelogram of the lumbar spine regarding her continuing complaints of low back and left leg pain. (Employer exhibit C, page 28) Claimant underwent a CT Myelogram at Dr. Robson's direction on February 5, 2013, which Dr. Robson noted, showed the degenerative changes at the L4-5 and L5-S1 level of Claimant's lumbar spine unrelated to the work injury. (Employer exhibit C, page 23)

Dr. Robson last examined Claimant on February 12, 2013. Dr. Robson noted Claimant had some continuing complaints with her low back which he attributed to the degenerative process at L4-5, L5 S1 which was not related to the July 20, 2010 work injury. (Employer exhibit C, page 5) He indicated Claimant did not need any additional medical treatment related to the L2-3 injury at work on July 20, 2010. He stated Claimant had ongoing problems at L4-5 and L5-S1 and she needed to seek treatment for those levels privately. (Employer exhibit C, page 7)

Dr. Robson reaffirmed his work restrictions related to the injury as 30 pounds/20 pounds lifting and no repetitive bending, stooping, or twisting. (Employer exhibit C, page 7) He released Claimant from care. (Employer exhibit C, page 7)

Medical Summary of Dr. James Coyle:

Dr. James Coyle, a board-certified orthopedic surgeon, examined Claimant regarding her continuing lower back complaints at the request of the employer on May 15, 2013 and June 19, 2013. Claimant had complaints of bilateral leg pain and numbness and persistent low back pain. (Employer exhibit E, page 79)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

Dr. Coyle diagnosed Claimant with discogenic low back and left lower extremity pain L5-S1 status post L2-3 posterior fusion. (Employer exhibit E, page 79) Dr. Coyle following diagnostic tests recommended at his June 19, 2013 examination that Claimant not undergo surgery at L4-5 and L5-S1. (Employer exhibit E, page 75) Dr. Coyle found Claimant at maximum medical improvement from the standpoint of her low back. He concurred with Dr. Robson's work restrictions per the FCE. (Employer exhibit E, page 75)

Dr. Coyle was deposed on August 9, 2016. (Employer exhibit G, page 1) Dr. Coyle testified in his 2016 deposition that due to advancements in diagnostic testing he would recommend a targeted steroid injection inside the disc at L4-5 to see if Claimant got pain relief. (Employer exhibit G, page 17 line 17, page 19 line 1) Dr. Coyle testified the L5-S1 injury was related to the original injury of July 20, 2010. (Employer exhibit G, page 22 line 14, page 23 line 7)

Dr. Coyle reexamined Claimant on December 8, 2016. He noted she had complaints of intractable back pain on a daily basis with symptoms aggravated by extended standing, sitting, and repetitive bending. She had bilateral lower extremity pain and numbness. She was noted to be on Social Security Disability. (Employer exhibit E, page 63)

Dr. Coyle diagnosed Claimant at the December 8, 2016, examination with probable discogenic low back pain from the L5-S1 level. (Employer exhibit E, page 38) He referred Claimant for a series of intra disc anesthetic injections at L5-S1 as well as facet injections at L5-S1. (Employer exhibit E, page 63)

Claimant underwent two injections at the L5-S1 level which gave her temporary relief and illustrated a radial tear in the L5-S1 disc. (Employer exhibit E- page 40) Dr. Coyle recommended Claimant undergo an L5-S1 lumbar decompression and arthrodesis. Dr. Coyle indicated in a March 23, 2017, report that the work injury of July 20, 2010, was the prevailing factor in causing her current low back and lower extremity pain and complaints and the need for surgery. (Employer exhibit E, page 38)

Dr. Coyle performed the authorized L5-S1 fusion on Claimant on May 22, 2017. He indicated Claimant was to be on off-work status as of the May 22, 2017 surgical date. (Employer exhibit E, page 29)

Dr. Coyle provided post-surgical care and treatment for Claimant on June 8, 2017 (Employer exhibit E, page 26) and July 6, 2017 (Employer exhibit, page 22) examinations along with aqua and land-based therapy through Aquatic Fitness. (Employer exhibit F)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

Dr. Coyle examined Claimant on August 17, 2017. He noted Claimant had a forty-year history smoking cigarettes and at his request did stop smoking shortly before the May 22, 2017 surgery. She had resumed smoking which he had earlier strongly recommended she not do. Claimant refused Dr. Coyle's request for a nicotine test. Dr. Coyle advised Claimant that she "is jeopardizing her long-term outcome by continuing to smoke". Claimant responded "she expects to go on disability when she is released". Dr. Coyle noted Claimant "is significantly improved over where she was pre-operatively". (Employer exhibit E, page 15)

Dr. Coyle examined Claimant on September 17, 2017. Dr. Coyle noted Claimant felt like she was progressing with only mild left paralumbar pain but no lower extremity symptoms. (Employer exhibit E, page 11) Dr. Coyle indicated Claimant could return to work with lifting restrictions and intermittent sit stand and walk restrictions. (Employer exhibit E, page 13)

Dr. Coyle next examined Claimant on October 31, 2017. Dr. Coyle noted from his review of the physical therapy records that:

"She demonstrated the ability to perform single leg stance for thirty seconds, maintaining a neutral spine. She is able to reach below her knees. She is lifting twenty-five pounds for twenty repetitions on the chest press. She is rowing, doing lateral pull downs, and triceps extension with good mechanics. She demonstrated the ability to carry fifteen pounds one hundred feet, push seventy-five pounds in a cart for five hundred feet and climb and eight stair-tier for six consecutive repetitions." (Employer exhibit E, page 4)

Dr. Coyle noted "overall she looks very good". (Employer exhibit E, page 4) Claimant completed her physical therapy on November 10, 2017.

Dr. Coyle conducted his final examination of Claimant on November 30, 2017. He noted:

"The therapist noted that she appeared motivated and compliant with her exercise program and tolerated her exercises well. She is able to stand on a single leg for thirty seconds, maintaining a neutral spine. She demonstrated the ability to lift thirty pounds from floor to waist, twenty-five pounds from waist to shoulder, and fifteen pounds overhead for ten repetitions. She demonstrated the ability to push seventy-five pounds in a cart for five hundred feet, to climb an eight-stair tier for six consecutive repetitions, to reach overhead, and to walk

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one half mile on a treadmill in thirteen minutes. She demonstrated these abilities while maintaining a normal blood pressure." (Employer exhibit E, page 4)

Dr. Coyle found Claimant at maximum medical improvement on November 30, 2017. He indicated she did not need any additional future medical treatment or pain medications. (Employer exhibit E, page 4) Dr. Coyle gave Claimant permanent work restrictions of thirty pounds occasionally and twenty pounds frequently. (Employer exhibit, page 6)

Dr. Coyle provided a final report dated December 12, 2017. (Employer exhibit E, page 2) He reiterated that Claimant had made a very good recovery from his review of both the physical therapy records and his clinical examinations of her over his six-month post-operative treatment. Dr. Coyle gave Claimant 25% permanent partial disability of the lumbar spine based on the body as a whole which included the L2-3 surgery by Dr. Robson. Dr. Coyle noted it was "my impression that all along her L5-S1 disc pathology was the cause of her low back and lower extremity symptoms" (Employer exhibit E, page 3).

Dr. Coyle was deposed on May 24, 2018. (Employer exhibit H) Dr. Coyle testified the July 22, 2010, work injury was the prevailing factor in his L5-S1 diagnosis that required surgery. (Employer exhibit H, page 10 line 11-23)

Dr. Coyle testified that on August 17, 2017, when he told Claimant she would jeopardize her long-term outcome by continuing to smoke she replied that "she expected to go on disability when she was released". (Employer exhibit H, page 15 line 16-25)

Dr. Coyle testified that at his August 17, 2017 examination of Claimant and his review of the physical therapy records:

"She was really doing well, considering that she had been on disability for so long. I really looked at her, and I still do look at her as a major save". (Employer exhibit H, page 17 line 4-12)

Dr. Coyle testified that when he released her from care at maximum medical improvement on November 30, 2017, she could compete in the open labor market subject to thirty pounds/twenty-pound lifting restrictions. He stated:

"I think she certainly could have competed in the open labor market. One thing I want to point out is that it's one thing for somebody who weighs 280 pounds to lift thirty pounds. This lady only weighed 135 lbs. That is a pretty fit person who in their mid-

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fifties, who weighs 135 pounds and can lift thirty pounds."

(Employer exhibit H, page 22 line 11-24)

Dr. Coyle testified he gave her 25% permanent partial disability from the July 20, 2010 work injury which included Dr. Robson's surgical procedure and his surgical procedure. (Employer exhibit H, page 24 line 4-15)

Dr. Coyle testified that upon his release of her from care she was not taking any medications and she did not need any additional future medical treatment. He stated "she had done a very good job in rehabilitation and conditioning exercises." (Employer exhibit H, page 23 line 5-18)

Dr. Coyle testified that during the course of this six-month post-surgical care of Claimant she did not voice to him that she was having any problems of significance. He stated:

"She was a very happy woman. A very pleasant patient. She was tremendously improved over where she was when we set out to do the L5-S1 surgery." (Employer exhibit H, page 25 line 4-14)

Dr. Coyle further testified:

"She was motivated to get better she wasn't motivated to go back to work because that's a different thing. She would come in right after physical therapy and tell me I'm going to stay on disability." (Employer exhibit H, page 30 line 14-25)

Dr. Coyle further testified:

"She is by no means disabled. It would be a travesty if somebody gave her a disability for this. I know she was out for a long, time, but I gave her a second chance, and the question is, is she willing to take it and run with it." (Employer exhibit H, page 34 line 19-23).

Medical Summary of Dr. David Volarich:

Dr. David Volarich examined Claimant for disability rating purposes at Claimant's request of October 17, 2012, October 7, 2014 and June 12, 2018, and issued reports on those dates regarding his findings of significance. (Claimant exhibit 17 page 7) Dr. Volarich was deposed on October 4, 2019. (Claimant exhibit 17)

2012 Examination

Dr. Volarich testified at his deposition that Claimant, at the original October 17, 2012 examination, gave a history of injuring her low back on July 20, 2010 when she fell at work

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while moving copper tubing around the shelf and the shelf began to fall and she twisted and bent to avoid the contents of the shelf striking her and felt a pop and the onset of severe pain in the back. (Claimant exhibit 17, page 4-8)

Dr. Volarich clinically examined Claimant and reviewed diagnostic films. He made a diagnosis of a L2-3 disc herniation with aggravation of spinal stenosis that required a laminectomy fusion at the L2-3 level that was related to the July 20, 2010, work injury. Dr. Volarich also testified Claimant had a small disc herniation at the L5-S1 level with left L5 radiculopathy which he did not assess at the time or provide an opinion as to whether it was work related. (Claimant exhibit 17, line 1-20)

Dr. Volarich testified Claimant was not at maximum medical improvement. (Claimant exhibit 17-11, line 21-24)

Dr. Volarich gave Claimant a 50% permanent partial disability rating at the lumbar spine due to the L2-3 disc herniation that required a laminectomy and fusion and he indicated was related to the July 20, 2010, work injury. (Claimant exhibit 17-12, line 9-17)

Dr. Volarich testified he gave Claimant work restrictions which included no bending, twisting, lifting, pushing, pulling and no handling of any weight greater than 15 to 20 pounds and no over the head weight lifting and avoid remaining in a fixed position for any more than 30 minutes and she should change positions frequently. (Claimant exhibit 17-14, line 15-17)

2013 Examination

Dr. Volarich testified he next examined Claimant on October 7, 2013. He noted she had ongoing lumbar and lower extremity complaints which he attributed to the laminectomy fusion at the L2-3 level which was work related and a disc protrusion and annular tear at L5-1 with degenerative joint disease at L4-5 and L5-S1. (Claimant exhibit 17, line 8-22)

Dr. Volarich testified Claimant was at maximum medical improvement at his October 7, 2013 examination. (Claimant exhibit 17-18 line 21-1) Dr. Volarich gave Claimant a permanent partial disability rating of 65% to the person at the lumbar spine due to lumbar bilateral lower extremity radiculopathy due to the L2-3 disc herniation requiring a fusion and the protruding annular tear at the L5-S1 level. (Claimant exhibit 17-18, line 2-18)

He believed Claimant needed additional medical treatment, including possible surgical repair of her disc protrusion and annular tear at the L5-S1. (Claimant exhibit 17-19, line 4-14)

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Dr. Volarich testified that in his October 7, 2013 examination of Claimant as reflected in his report he reiterated the work restrictions he had originally imposed on Claimant at his original October 17, 2012 examination as referred to above. (Claimant exhibit 17-20, line 5-7)

Dr. Volarich at the October 7, 2013 evaluation recommended Claimant undergo a vocational assessment and if she could not find a job with the restrictions he noted in both his original October 17, 2012 report and his October 7, 2013 report that Claimant would be permanently and totally disabled as a direct result of the July 20, 2010 work injury. (Claimant exhibit 17-19, line 15 page 20 line 6)

2018 Examination

Dr. Volarich next examined Claimant for his third disability evaluation on June 12, 2018, and he prepared a report on that date setting forth his conclusions. (Claimant exhibit 17 line 5)

Dr. Volarich noted Claimant had ongoing complaints of pain in her low back from standing, walking or sitting for long periods of time and twisting or leaning to the side with pain into her legs. (Claimant exhibit 17 line 85)

Dr. Volarich testified that at his June 12, 2018 examination he reaffirmed his earlier diagnosis of an L2-3 disc herniation requiring surgery and he additionally noted that Claimant, due to radicular symptoms at the L5-S1 level, underwent a L5-S1 lumbar fusion that he indicated was caused by the July 20, 2010 work injury. (Claimant exhibit 17-22, line 11-22)

Dr. Volarich testified that at the June 12, 2018 examination he found Claimant was at maximum medical improvement. Dr. Volarich reiterated that at the June 12, 2018 examination, Claimant had a permanent partial disability rating of 65% of the person related to the work injury due to the disc herniation and resulting surgical fusions at the L2-3 and L5-S1 levels of the lumbar spine. (Claimant exhibit 17-23, line 9-page 24 line 3)

Dr. Volarich testified that Claimant was permanently and totally disabled as a direct result of the July 20, 2010 work injury. (Claimant exhibit 17-24, line 8-24)

Dr. Volarich testified that Claimant had told him that she had applied for over 200 jobs in the "last year or two" from the July 12, 2018 examination, and had not found even sedentary work. (Claimant exhibit page 24, line 11-21)

Dr. Volarich testified Claimant needed future medical treatment including pain management, pain medications and aqua therapy to cure and relieve the effects of her July 20, 2010 work injury. (Claimant exhibit 17-25, line 1-19)

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Dr. Volarich testified that it was important as a disability rating doctor that he have all of the medical records when he examines an Claimant for disability rating purposes but he admitted he did not have those Dr. Coyle records to review until 15 minutes before his October 4, 2019 deposition and well after he prepared his June 12, 2018 report. (Claimant exhibit 17-28, line 14-page 30 line 16)

Dr. Volarich testified that Dr. Coyle's records, which he first reviewed 15 minutes before his October 4, 2019 deposition, did not change any of his opinions. (Claimant exhibit 17-30, line 17-page 31 line 16)

Dr. Volarich testified he did not provide any treatment to Claimant but saw her for three disability rating examinations while Dr. Coyle performed surgery on Claimant and saw her for six to eight times following the 2017 surgery. (Claimant exhibit 17-34, line 16-page 35 line 1)

Dr. Volarich noted Claimant's radicular complaints were significantly improved after the 2017 surgery by Dr. Coyle. Dr. Volarich testified when he examined Claimant on June 12, 2018, she told him she did not have any lower extremity radiating pain. (Claimant exhibit 17-36, line 3-22)

Dr. Volarich testified that from his review of Dr. Coyle's October 31, 2017 report that Claimant was not taking any narcotics or medications which Dr. Volarich testified indicated a "good recovery". (Claimant exhibit 17-38, line 7-24)

VOCATIONAL OPINION RECORDS AND TESTIMONY

Ben Hughes of England and Associates interviewed Claimant on February 21, 2019 and prepared a February 27, 2019 Vocational Report. (Claimant exhibit 18 exhibit 3) Mr. Hughes gave a deposition on December 2, 2020. (Claimant exhibit 18) He also reviewed a prior January 15, 2014, vocational report prepared by his associate Jim England regarding Claimant. (Claimant exhibit 18 exhibit 2) Both, England and Mr. Hughes, interviewed Claimant and prepared reports at the request of Claimant.

Dolores Gonzales interviewed Claimant at the request of the employer on May 8, 2014 and August 28, 2018. She prepared vocational reports dated June 27, 2014 and August 28, 2018. (Employer exhibit 1 exhibit 2 and 3). Ms. Gonzales gave a deposition on February 19, 2021. (Employer exhibit 1).

Summary of Vocational Specialist Ben Hughes

Mr. Hughes reviewed the reports of Dr. Coyle and Dr. Volarich regarding Claimant's work restrictions and ability to compete in the open labor market.

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Mr. Hughes indicated that Dr. Coyle offered restrictions of 30 pounds lifting occasionally and 20 pounds lifting frequently. Mr. Hughes indicated that Dr. Coyle believed Claimant could be expected to work at a light level. (Claimant exhibit 18 page 18 line 8-16) Mr. Hughes indicated, however, that given the restrictions opined by Dr. Volarich from his original report of August 17, 2012 and updated in Dr. Volarich's third report of June 12, 2018, along with the need to rest when needed, Mr. Hughes found Claimant unemployable. (Claimant exhibit 18 line 21-23).

Mr. Hughes testified that when he interviewed Claimant on February 21, 2019, Claimant indicated that:

> "She's basically living in a reclined position for much of the day because of her pain and physical limitations. I think that certainly is a pertinent piece of information. She reported to me that she really can't do anything with any kind of activity because it increases pain". (Claimant exhibit 18 page 15 line 23 page 16 line 8)

Mr. Hughes admitted on cross-examination, however, that he did not review Dr. Coyle's deposition and records when Dr. Coyle on November 30, 2017, "found Claimant to be a pretty fit woman, who is in her mid-50's weighing 135 pounds and can lift 30 pounds. And she did not voice any complaints and she was a very happy person". (Claimant exhibit 18 page 24 line 4 page 26, line 4).

Mr. Hughes admitted that Claimant's need to rest was based exclusively on what she told him and not any doctor reports. (Claimant exhibit 18 page 37 line 10-19) Claimant denied telling Mr. Hughes she needed to rest in a reclined position for much of the day.

Mr. Hughes stated that Claimant told him that she had applied for 200 jobs and had not been able to find gainful employment. (Claimant exhibit 18 page 25 line 8-12) Mr. Hughes testified he did not recall Dr. Coyle in his deposition indicating that Claimant told him she was not willing to go back to work. (Claimant exhibit 18 page 29 line 7-11)

Mr. Hughes also admitted that Claimant told him that she had not applied for any jobs since she was released following her second surgery with Dr. Coyle in May 2017. (Claimant exhibit 18, page 29, line 17-24) Mr. Hughes stated that if a person is not going to spend any

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effort getting a job, they are not going to have any opportunity to be employed. (Claimant exhibit page 31 line 13-17)

Mr. Hughes testified that Claimant's presentation was much more consistent with Dr. Volarich's work restrictions contained in his original report of October 17, 2012, and updated in his third report of June 12, 2018, then with the restrictions noted by Dr. Coyle in his November 30, 2017 report. (Claimant exhibit 18 page 42 line 18-25)

Mr. Hughes testified that based upon the restrictions imposed by Dr. Volarich along with "the need to rest when needed", Claimant is unemployable. (Claimant exhibit 18, page 18, line 21-23) Claimant denied she told Mr. Hughes she needed to rest in a reclined position for much of the day.

Summary of Vocational Expert Dolores Gonzales

Ms. Gonzales testified that the opinions of Dr. Volarich and Dr. Coyle differ as to Claimant's functional capacity and ability to compete in the open labor market. (Employer exhibit I -15 line 5-17 line 3)

Ms. Gonzales testified that, given Dr. Volarich's work restrictions and opinions, Claimant could be construed to be permanently and totally disabled from competing in the open labor market. (Employer exhibit I, page 15, line 11-16)

However, Ms. Gonzales testified that Dr. Coyle was of the opinion that Claimant was capable of competing in the open labor market in a sedentary, light and limited range of exertional level work. (Employer exhibit I page 17 line 3-6) Ms. Gonzales testified that, from her review of the opinions and work restrictions of Dr. Volarich and Dr. Coyle and her interviews with Claimant, she found Dr. Coyle's opinion that Claimant could compete in the open labor market more credible than Dr. Volarich's opinion that Claimant was unemployable. (Employer exhibit I, page 20, line 3-18)

Ms. Gonzales testified that she conducted vocational testing of Claimant and "she did quite well, everything was average". (Employer exhibit I-13 line 24-14 line 11) Ms. Gonzales testified that Claimant, based upon her vocational assessment, could assimilate adequately to a clerical position. (Employer exhibit I, page 14, line 12-18).

Ms. Gonzales noted Dr. Coyle in his November 30, 2017 report, gave permanent work restrictions of 30 pounds lifting occasionally and 20 pounds lifting frequently. Ms. Gonzales noted that Dr. Coyle indicated "this a pretty fit person who was in their mid-fifties, weight 135 pounds and can lift 30 pounds". (Employer exhibit I, page 11, line 7-25).

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Ms. Gonzales testified that Dr. Coyle's specifically noted:

> "She is able to stand on a single leg for thirty seconds maintaining a neutral spine; she demonstrated the ability to lift 30 pounds from floor to waist, 25 pounds, waist to shoulder, and 15 lbs. overhead for ten repetitions. She demonstrated the ability to push 75 pounds in a cart for 500 feet; the climb of 8 stair tier for six consecutive repetitions; to reach overhead; and to walk one half mile on a treadmill in 13 minutes while maintaining a normal blood pressure. She is a very fit person."

(Employer exhibit I, page 16 line 3-18)

Ms. Gonzales testified Claimant told her she did not need to rest in a reclined position for most of the day. (Employer exhibit I, page 10, line 11-14)

Ms. Gonzales testified that Claimant's representation to Dr. Volarich on June 18, 2018, that she had applied for over 200 jobs in the last year or two and had not found sedentary work was contrary to what she told Dr. Coyle on 2017 and herself and August 2018, that she had not conducted any job search. (Employer exhibit I, page 13, line 11-15)

Ms. Gonzales testified that Claimant told Dr. Coyle that she was going to stay on disability. (Employer exhibit I, page 8, line 14-24) Ms. Gonzales testified that Claimant said she had not been looking for a job and she was on disability and thought she could not work. (Employer exhibit I, page 8 line 4-13)

Ms. Gonzales testified that if a person is not motivated to perform her job search that person is not going to find a job. (Employer exhibit I, page 18 line 16-25) Ms. Gonzales testified that Claimant told her that she was not willing to make the effort to find a job. (Employer exhibit I, page 9, line 8-21)

Ms. Gonzales testified that Dr. Coyle's opinion that Claimant could compete in the open labor market was more credible than Dr. Volarich's opinion that Claimant was unemployable because of her residual functional capacity as noted by Dr. Coyle and Claimant "said some things to Dr. Volarich that may not have been true. She may not have been applying for 200 jobs. She told me she had not." Employer exhibit I, page 20 line 3-25)

Ms. Gonzales identified jobs in her report that Claimant could perform based upon her residual functional capacity and work restrictions of Dr. Coyle including price marker, routing clerk and gas station clerk. (Employer exhibit I, page 17, line 3-19)

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Claimant began missing work following the July 20, 2010 work injury on August 3, 2010. She received her weekly salary benefits until October 28, 2010.

The Parties stipulated that Claimant received weekly temporary total disability benefits ("TTD") from October 28, 2010 through August 30, 2011. Dr. Robson found Claimant at maximum medical improvement as of August 18, 2011.

The Parties stipulated there was an underpayment of TTD benefits in the amount of $1,482.97 from October 28, 2010 through the termination of TTD benefits on August 30, 2011.

Claimant applied for and received unemployment benefits from the Missouri Division of Employment Security following her termination of TTD benefits and received the weekly unemployment benefits through November 14, 2012. (Employer Exhibit A, page 13) In order to receive unemployment benefits Claimant needed to certify each week that she met the basic requirements such as being able to work and being available for full-time work. (Employer Exhibit A, page 12) Claimant, thus, is not entitled to TTD benefits from September 2011 through November 14, 2012, while she was receiving unemployment benefits.

The purpose of temporary total disability benefits is to cover Claimant's healing process. Temporary total disability benefits are owed until Claimant can find employment or his condition has reached maximum medical improvement. *Tilley vs USF Holland Inc.,* 325 S.W. 3rd 487 (Mo.App. E.D. 2010). When further medical procedures are not expected, temporary benefits are not owed and a temporary award for additional TTD benefits is not warranted. *Stevens vs Citizen's Memorial Healthcare Foundation,* 294 S.W. 3rd, 234 (Mo.App. S.D. 2008).

Claimant's claim for TTD benefits includes three periods of time after Claimant's unemployment benefits were terminated on November 14, 2012:

1. From November 14, 2012 (termination of unemployment benefits) until Dr. Coyle reexamined Claimant on December 8, 2016 prior to the second surgery on May 22, 2017;
2. From December 8, 2016, when Dr. Coyle reexamined Claimant and then performed a second low back surgery on her in May 2017 and provided post-surgical care until Dr. Coyle found Claimant at maximum medical improvement and capable of competing in the open labor market on November 30, 2017;

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1. From Dr. Coyle's release of Claimant at maximum medical improvement on November 30, 2017 to the present.

November 14, 2012 through December 8, 2016

The medical opinion of the authorized surgeon, Dr. Robson, indicated Claimant reached maximum medical improvement as of September 6, 2011, from her first surgery. TTD benefits were properly terminated. Dr. Coyle performed an IME of Claimant regarding her continuing low back complaints on November 15, 2013 and June 19, 2013. Dr. Coyle after performing diagnostic tests found Claimant at maximum medical improvement from the standpoint of her low back as of Dr. Robson's August 18, 2011 report. Dr. Coyle agreed with Dr. Robson's work restrictions per the FCE report.

Delores Gonzales, a Vocational Specialist who interviewed Claimant at the request of the employer on May 8, 2014, indicated, given the maximum medical improvement opinions of Dr. Robson and Dr. Coyle and the work restrictions, that Claimant could perform light to medium demand level work (Employer Exhibit I, page 100).

Accordingly, based on the evidence from Vocational Specialist Delores Gonzales which indicates that Claimant was capable of obtaining employment in the open labor market, combined with the medical evidence of MMI status from Dr. Robson and Dr. Coyle, the Court finds Claimant is not entitled to TTD benefits from her termination of unemployment benefits November 14, 2012 through Dr. Coyle's reexamination of her on December 8, 2016.

December 8, 2016, through November 30, 2017

Dr. Coyle upon reexamining Claimant on December 8, 2016, found that she needed additional surgical care and took her off work and performed a May 22, 2017 second surgery. He then provided Claimant the post-surgical care including physical therapy until he found Claimant at maximum medical improvement and able to compete in the open labor market at a November 30, 2017, examination.

Courts have awarded Claimant two separate periods of TTD benefits stemming from the same work-related injury, even in an instance where Claimant has been declared to be at maximum medical improvement if Claimant's condition worsened over time after the first period of TTD benefits. *Thorsen vs Sachs Electric, Co.*, 52 S.W. 3rd 611 (Mo. App. W.D. 2001) (overruled on other grounds by *Hampton*, 121 S.W. 3rd 224).

Accordingly, the Court finds Claimant is entitled to receive TTD benefits for a second period of time from Dr. Coyle's December 8, 2016 reexamination of Claimant and during her

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treatment by Dr. Coyle including a May 27, 2017, surgery and post-surgical care until Dr. Coyle released Claimant at maximum medical improvement as of November 30, 2017. The right to TTD during the second period of time terminated based upon Dr. Coyle's maximum medical improvement finding on November 30, 2017. *Tilley vs USF Holland Inc., supra.*

November 30, 2017 to the present

Dr. Coyle found Claimant at maximum medical improvement on November 30, 2017, and capable of competing in the open labor market. Claimant admitted to Dr. Coyle and Vocational Specialist Kaver that she did not look for jobs and would not look for jobs. She told Dr. Coyle she would stay on disability. See Social Security Disability Award (Employer exhibit B, dated 2/15/13).

Claimant always has the burden to prove all elements of her claim. *Meilves v. Morris, 422 S.W.2d 335, 339 (Mo.1968); Merriman v. Ben Gutman Truck Service, Inc., supra,* 392 S.W.2d at 296. In this case, the evidence demonstrates that claimant was capable of looking for work as of the date of MMI on November 30, 2017, but did not. In this case, a refusal to look for work demonstrates an unwillingness to return to work, not an inability to return to work. The court finds Claimant is not entitled to any additional TTD benefits from Dr. Coyle release of Claimant on November 30, 2017 to the present.

Past Medical Care:

Section 287.140.1 RSMo provides in part:

> "Claimant shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, and medicines, as may reasonably be required after the injury or disability, to cure and relieve the effects of the injury. If Claimant desires, he shall have a right to select his own physician, surgeon, or other requirement at his own expense."

The parties stipulated the employer paid $223,372.27 for authorized medical treatment through Dr. Robson and Dr. Coyle along with related appropriate diagnostic tests, surgical costs, post-surgical care including physical therapy for such treatment.

Claimant following the initial July 20, 2010 work injury received a brief course of treatment through her primary care physician Dr. Mulford with diagnostic referrals that were paid for by the employer's group health carrier. Claimant then commenced authorized treatment with Dr. Robson on September 2, 2010. Dr. Robson found Claimant at maximum medical improvement on August 18, 2011. She was released from care by Dr. Robson on February 12,

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2013 with no need for additional medical treatment. She followed up with authorized examinations with Dr. Coyle in May and June 2013. Claimant commenced authorized medical care with Dr. Coyle from December 8, 2016. Dr. Coyle released her from care November 30, 2017.

Other than the authorized medical care through Drs. Robson and Coyle, which was fully paid for by the Employer, Claimant, since the July 20, 2010 date of injury, received only occasional medical examinations and care for her general physical and emotional health from her primary care physicians, including Dr. Mulford from July 20, 2010 through December 21, 2010 (Claimant Exhibit 1), Dr. Mabe from December 15, 2011 through October 28, 2015 (Claimant Exhibit 11) and Dr. Chad Smith from May 2, 2016 to the present. (Claimant Exhibit 16) These primary care physicians provided Claimant with annual examinations for her general health and medical treatment for numerous conditions, including pain medications, most of which were unrelated to the July 20, 2010 work injury and/or related to Claimant's preexisting depression originally diagnosed in 2000 and alleged only against the Second Injury Fund.

Additionally, Dr. Coyle indicated in his November 30, 2017 report that Claimant would not need any additional medical treatment and/or pain medications related to the July 20, 2010, work injury.

Claimant has not provided any expert opinion that the medical care provided by Claimant's primary care physicians over time (Drs. Mulford, Mabe, and Smith) was causally related to the low back injury of July 20, 2010.

Additionally, a Claimant in seeking past medical expenses must introduce his medical bills into evidence, and identify those bills as being related to his work injury and established the reasonableness of those medical bills. *Martin v Mid America Farm Lines*, 769 S.W. 2d, 105,111 (Mo. banc 1989). Claimant introduced only her primary records from these three different primary care physicians for her general medical care and did not introduce any bills representative of that care as being related to the July 20, 2010 work injury and did not establish a causative link between the work injury and the treatment and reasonableness of the care as to the low back injury.

The Court finds that Claimant is not entitled to any past medical expenses she may have incurred.

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Future Medical Care:

Under Section 287.140.1, an employer must provide such care "as may reasonably be required after the injury or disability to cure and relieve the effects of the injury." This includes allowance for the cost of future medical treatment. *Pennewell vs Hanibal Hospital*, 390 S.W. 3d 19, 924 (Mo.App E.D. 2013). Additionally, "an award of future medical treatment is appropriate if an Claimant shows a reasonable probability that he or she is need of additional medical treatment for the work-related injury." *Id.* An employer will be responsible for future medical benefits only if the evidence establishes to a reasonable degree of medical certainty that the need for future medical care flows from the accident. *Sickmiller vs Timberland Forest Products Inc.*, 407 S.W. 3d 109, 122 (Mo.App. S.D. 2013).

As to the low back injury of July 20, 2010, Dr. Coyle performed the May 2017 surgery and provided Claimant with extensive post-surgical care. Dr. Coyle testified that when he released Claimant from care she would not need any additional medical treatment or pain medications for the low back.

Following his June 12, 2018 rating examination of Claimant, Dr. Volarich testified that Claimant would need future additional medical treatment including pain management, pain medications and aqua therapy related to the effects of the July 20, 2010 work injury.

Claimant testified that she would like pain management and aqua therapy.

Claimant testified following her release from treatment by Dr. Coyle that she sees Dr. Chad Smith for annual checkups and general medical care including pain medications and prescriptions for both her preexisting depression which arose in 2000 before the work injury and for her low back injury of July 20, 2010. Claimant, other than pain medications from Dr. Chad Smith since her November 30, 2017 release from Dr. Coyle, has not gotten any additional medical treatment for her low back injury from Dr. Chad Smith or any other medical provider to the present.

Claimant, by her attorney in December 2020, more than three years after her release from care by Dr. Coyle, requested the employer provide her additional medical treatment after she noticed the onset of pain in her low back while decorating her Christmas tree. The employer denied the request for additional medical treatment due in part to Claimant requesting no active medical treatment for more than three years after her release from Dr. Coyle and the increase in her pain while decorating the Christmas tree serving as an intervening event breaking any

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possible causation link between the July 20, 2010 work injury and need for medical treatment in 2020.

Claimant has not provided any updated medical opinion that she needs any additional medical treatment for her low back related to the July 20, 2010 work injury. While Claimant apparently is getting pain medication from Dr. Chad Smith for her low back she indicated during the course of her post-surgical treatment with Dr. Coyle that she was no longer taking or needing any pain medications.

Based upon Dr. Coyle's credible opinion that Claimant did not need any additional future medical treatment related to the July 20, 2010 low back injury and the intervening period of three years before Claimant requested additional medical treatment for her low back injury, the Court finds the opinion of Dr. Coyle to be more credible than the opinion from Dr. Volarich that Claimant would need future medical treatment.

The Court further finds that any future medical treatment and pain medications of Xanax and Effexor for Claimant's depression is related to Claimant preexisting depression condition, first diagnosed in 2000, and not reasonably required to cure and relieve Claimant from the effects of the July 20, 2010 work injury. Claimant did not plead depression as an injury against the employer in the July 20, 2010 work injury claim and Claimant only alleged depression against the Second Injury Fund as a preexisting condition and not arising from the July 20, 2010 claim against the employer which was limited to Claimant's low back.

The Court finds that Claimant is not entitled for future medical care for either the low-back injury or depression related to the July 20, 2010 injury claim. Future medical care is denied.

Permanent Disability: Liability of Employer for permanent partial disability or permanent total disability:

Claimant maintains she is permanently and totally disabled from the July 20, 2010 work injury.

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 Claimant was engaged at the time of the accident".

The test for permanent total disability is the worker's ability to compete in the open labor market because it measures the worker's "potential for returning to employment". *Tilley vs US Holland Inc., 325 S.W. 3d 487,491 (Mo.App. E.D. 2010)*. Additionally, the ability to compete in

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the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition. *Archer vs City of Cameron*, 60 S.W. 3d 370, 375 (Mo.App. W.D. 2015). Claimant bears the burden of proving she is entitled to permanent total disability benefits. *Louis vs Kansas, University Med. Center*, 356 S.W. 3d 796, 800 (Mo.App W.D. 2011).

The employer maintains that Claimant is entitled to permanent partial disability related to the July 20, 2010 work injury. Permanent partial disability is defined as "a disability that is permanent in nature and partial in degree". Section 287.190.6 (1) RSMo. (2013).

The Court finds that Claimant has not sustained her burden of proof of proving permanent total disability against the employer when, following her second surgery, she was released from care by Dr. Coyle on November 30, 2017. I find the employer's expert testimony of Dr. Coyle and Vocational Rehabilitation Specialist Gonzales more credible than Claimant's testimony and the testimony of Dr. Volarich and Vocational Specialist Hughes on the permanent total disability vs permanent partial disability issue.

Claimant testified that she had been receiving Social Security Disability benefits since 2012, after her unemployment benefits ceased. Dr. Coyle testified that Claimant told him she was not motivated to go back to work and "I'm going to stay on disability". Claimant told Vocational Specialist Gonzales that she had not looked for a job since Dr. Coyle released her from care on November 30, 2017.

In *Ransburg vs Great Plain Drilling*, 22 S.W. 3d 726 (overruled on other grounds by *Hampton*, 121 S.W. 3rd 224) the Western District held that it is appropriate for the commission to determine through Claimant's testimony receiving pension and welfare benefits in determining whether Claimant had ever attempted to gain employment. Claimant's statements to Dr. Coyle and Vocational Specialist Hughes establishes that, due in part to Claimant receiving Social Security Disability payments, she chose not to make any effort to return to work following her release from Dr. Coyle on November 30, 2017.

Dr. Volarich did not provide any treatment to Claimant and saw her for a third disability rating examination on June 12, 2018. He gave Claimant 65% permanent partial disability and testified that Claimant told him she had applied for over 200 jobs in "the last year or two" when Claimant admitted to Dr. Coyle and Vocational Specialist Delores Gonzales that she had not looked for any employment since her 2016 surgery with Dr. Coyle.

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Dr. Volarich testified that at his June 12, 2018, examination Claimant's radicular complaints were significantly improved after Dr. Coyle's surgery and Claimant did not have any lower extremity radiating pain.

Dr. Volarich additionally admitted at his October 4, 2019 deposition that he had not even received Dr. Coyle's records for review until 15 minutes before his October 2019 deposition and well after he issued his final rating examination report of June 12, 2018.

Dr. Volarich testified that Claimant was permanently and totally disabled from the July 20, 2010 work injury.

Dr. Coyle, following his post-surgical care for Claimant and his review of the very favorable and positive physical therapy findings, opined that Claimant could return to work with 20 to 30 pound lifting restrictions. He testified she "is a very fit woman". Dr. Coyle testified Claimant could compete in the open labor market. He gave her a 25% permanent partial disability rating from the July 20, 2010 work injury which necessitated two low back surgeries.

Vocational Specialist Hughes, who examined Claimant at her request, noted in his February 27, 2019 report and deposition testimony that Claimant told him she had not applied for any jobs since Dr. Coyle released her. Hughes stated that "if a person is not going to spend any time looking for and getting a job they are not going to have the opportunity to be employed".

Mr. Hughes testified that the client told him, at the February 19 meeting, that she was living in a reclined position for much of the day. Hughes based his opinion that Claimant was unemployable in large part on her indication that she needed to rest in a reclined position for most of the day. Claimant testified at trial that she never told Hughes she needed to rest in a reclined position for most of the day.

Vocational Specialist Gonzales testified that she found Dr. Coyle's opinions that Claimant was capable of competing in the open labor market in a sedentary and limited range of exertional level work more credible than Dr. Volarich's opinion that Claimant was unemployable. She relied in part on the very favorable physical therapy findings as to Claimant's residual functional capacity in opining that Claimant was employable. Gonzales indicated Claimant told her she was on disability and thought she could not work. Ms. Gonzales agreed with Vocational Specialist Hughes that if a person is not motivated to perform a job search she is not going find a job.

WCO-32-R1 (6-81)

Page 29

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

Section 287.020.6 defines "total disability" as the "inability to return to any employment". A refusal to even make an attempt to obtain employment does not equate with an "inability to return to any employment".

Due to the more credible medical testimony of Dr. Coyle and vocational testimony of Delores Gonzales when compared to Claimant's own testimony and the medical testimony of Dr. Volarich and the Vocational testimony of Ben Hughes, I find the primary injury of July 20, 2010, resulted in the amount of 42.5% permanent partial disability of the body as a whole at the lumbar spine. The amount of permanent partial disability awarded takes into account the necessity of two surgeries and the resulting long-term effects.

Permanent Disability: Liability of Second Injury Fund for Permanent Partial Disability or Permanent Total Disability:

There is no evidence introduced that Claimant's depression, first diagnosed in 2000, alleged only as an injury against the Second Injury Fund before the 2010 primary injury against the employer, contributed to any preexisting permanent partial disability of Claimant or combined with the primary injury of July 20, 2010, for permanent total disability of Claimant after the injury.

Accordingly, I find the Second Injury Fund has no liability for any permanent partial disability or permanent total disability of Claimant.

CONCLUSION

The parties stipulated there was an underpayment of TTD benefits in the amount of $1,482.97 from October 28, 2010 through August 30, 2011. Claimant is entitled to that $1,482.97 underpayment from the employer.

Based upon the evidence offered, Claimant is entitled to back due temporary total disability benefits (TTD) from December 8, 2016 through November 30, 2017, a period of fifty-one (51) weeks at a weekly rate of 429.79 amounting to 21,919.29.

Based upon the evidence offered, Claimant is entitled to forty-two and 1/2 percent (42.5%) permanent partial disability of the body as a whole at the lumbar spine for injuries resulting from the July 20, 2010 work injury against the employer. This would total one hundred seventy weeks (170) of compensation at a weekly PPD rate of 418.58 amounting to 71,158.60 for permanent partial disability benefits against the employer.

Based on the evidence offered, Claimant is not entitled to any additional back temporary total disability benefits, additional permanent partial disability or permanent total disability

WC-35-011 (6-01)

Page 30

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

benefits, any past medical expenses and any future medical care from the employer except as

specifically outlined above.

Based upon the evidence offered, Claimant is not entitled to any Award against the

Second Injury Fund.

I certify that on 3-1-22,

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

Date:

JASON TILLEY

A true copy: Attest:

Division of Workers' Compensation

W0-32-R1 (6-81)

Jason

A. Tilley

Digitally signed

by Jason A. Tilley

Date: 2022.02.22

08:55:05 -06'00'

Administrative Law Judge

Division of Workers' Compensation

Jason

A. Tilley

Digitally signed

by Jason A. Tilley

Date: 2022.02.22

08:55:05 -06'00'