issued by the labor and industrial relations …...section 287.190.6(2) provides, in pertinent part,...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

Additional Party:

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion)

Cherisse Williams

Gate Gourmet, Inc. (Settled)

Liberty Insurance Corporation (Settled)

Treasurer of Missouri as Custodian of Second Injury Fund

Injury No. 08-108467

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

Discussion

The administrative law judge found that employee failed to meet her burden of proving permanent total disability as a result of permanent partial disability to her cervical spine attributable to her November 30, 2008, work injury in combination with preexisting permanent partial disability to her cervical spine and right wrist because she failed to provide sufficient medical evidence demonstrating that she is permanently and totally disabled.

Section 287.190.6(2) provides, in pertinent part, "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." While a medical expert need not use "magic words" to satisfy the requirements of this section, we find that the record in this case lacks sufficient competent and substantial evidence to support the conclusion that the employee is permanently and totally disabled. We note that Dr. Shawn Berkin, the only medical expert produced in this case, explicitly avoided finding employee permanently totally disabled and rather assessed only permanent partial disability. 1 Moss v. Treasurer of Mo. - .Custodian of the Second Injury Fund, 570 S.W.3d 11 O (Mo. App. 2018) permits the Commission to consider nonmedical expert opinions in conjunction with medical evidence in determining if an employee is permanently and totally disabled. Moss instructs:

Consistent with the definition of "total disability," we interpret § 287.190.6(2)'s mandate that permanent total disability "be demonstrated and certified by a physician" to require that a physician show clearly and attest as being true the employee's medical condition and resulting work-related restrictions post injury. Once a physician does that, the requirement of § 287.190.6(2) is satisfied, and it is within the Commission's expertise to determine whether the employee, with the medical conditions and physical limitations confirmed by the physician, is employable. See Patterson, 452 S.W.3d at 767. ("[U]ltimately, the employability of an individual is a technical matter within the Commission's expertise."). Id. at 116.

1 See Transcript, 453.

Injury No. 08-108467 Employee: Cherisse Williams

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Moss does not require the Commission to award permanent total disability where the record includes no medical opinion that supports such a conclusion. Based on our experience in reviewing workers' compensation disability claims, we find that employee's self-reported limitations, in conjunction with the opinion of a single vocational expert retained by her attorney, does not constitute competent and substantial evidence upon which to base a finding of permanent total disability. As a result, we hereby use our expertise, as outlined in Moss, to determine that this employee is permanently partially disabled.

The above clarifications of the administrative law judge's award do not detract from his legal reasoning or his correct analysis of the evidence in the record.

Award

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

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

The award and decision of Administrative Law Judge John K. Ottenad, issued April 5, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this _ __;\:....\:....-1-> ___ day of September 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

~-&aL.?"eP

Q:c~ id. Filrrester, Member

DISSENTING OPINION FILED Curtis E. Chick, Jr., Member

Attest:

~~ .. ~ Secretary


DISSENTING OPINION

The majority finds that employee credibly testified concerning ongoing pain and functional limitations that attributable to various disabilities clearly enumerated in her medical treatment records. The majority notes that vocational rehabilitation expert Mr. J. Stephen Dolan relied on work restrictions imposed by medical expert Dr. Shawn Berkin as the basis for his opinion that employee is unable to obtain employment in the open labor market. The majority does not take issue with the work restrictions Dr. Berkin imposed nor does it discredit the opinion of vocational expert Mr. Dolan.

Section 287.190.6(2) provides, in pertinent part, "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." Citing the strict construction mandate of 287.800, the administrative law judge concluded that employee failed to meet her burden of proof on the issue of permanent total disability. The Commission majority endorses the administrative law judge's finding that employee failed to meet her burden of proof on the issue of permanent total disability because no medical doctor expressly "echoed, endorsed or ratified" Mr. Dolan's opinion that employee is unable to obtain employment in the open labor market.

Three days before the administrative law judge's April 5, 2019, Award, the Supreme Court denied transfer in the Western District case of Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund, 570 S.W.3d 110 (Mo. App. 2018). Moss specifically rejected the contention that 287.190.6(2) implies or mandates any requirement that a medical expert specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied. Moss holds that in determining if an employee is permanently and totally disabled "the Commission may rely on both evidence provided by a physician demonstrating and certifying the claimant's medical condition and functional abilities and evidence provided by other non-medical experts assessing whether, in light of his medical condition and functional ability, the claimant is employable."2

Moss holds that § 287.190.6(2)'s mandate that permanent total disability "be demonstrated and certified by a physician" requires only "that a physician show clearly and attest as being true the employee's medical condition and resulting work-related restrictions post injury."3 Once a physician does that, "it is within the Commission's expertise to determine whether the employee, with the medial conditions and physical limitations confirmed by the physician, is employable."4

Moss expressly rejected the Second Injury Fund's contention that a finding of permanent and total disability can only be made in cases where the employee presents an opinion from a physician specifically stating that the employee is unable to perform any work.

Dr. Berkin's opinion complies with the criteria set out in Moss by attesting to employee's medical condition and imposing the following work-related restrictions:

• Avoiding rapid and extreme movements of her neck and maintaining her neck fixed for extended period of time.

• Limiting lifting to 20-25 pounds on an occasional basis and 15 pounds on a frequent basis.

• Avoiding lifting with her arm extended from her body, lifting, or working with her arm above shoulder level.

2 Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund, 570 S.W.3d 110, 117. (Mo. App. 2018). 3 Id. at 116. 4 Id.


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• Limiting pushing and pulling to 35 pounds. • Avoiding forceful gripping, squeezing, pinching, pulling, twisting, turning and reaching

with her right hand for extended period of time and limiting exposure to operating power tools or vibratory equipment.

The majority mischaracterizes Dr. Berkin's testimony as concluding that employee is not permanently and totally disabled. A close reading of Dr. Berkin's deposition testimony and reports reveals that Dr. Berkin confined his assessment of employee to his evaluation of permanent disability relating to her November 30, 2008, injury (42.5 percent of the body as a whole referable to the cervical spine) and a separate determination of employee's preexisting industrial disability (30 percent of the body as a whole of the cervical spine and 30 percent of the right wrist). Dr. Berkin noted that disability from employee's November 30, 2008, injury combined synergistically with her preexisting disabilities to result in overall disability greater than the amounts assessed individually. However, Dr. Berkin never opined on the subject of whether the total sum of employee's disabilities rendered employee permanently and totally disabled from employment in the open labor market. Dr. Berkin's reluctance to make such a determination was entirely reasonable, considering that evaluation of employee's employment prospects in the context of her educational level, vocational history, and Dr. Berkin's physical limitations, is the sort of determination better made by a vocational expert rather than a medical doctor. Dr. Berkin simply confined his assessment of employee's disability to matters within his expertise.

The only evidence in the record regarding whether employee is unemployable due to the medical conditions and physical limitations demonstrated and certified by Dr. Berkin is the opinion of vocational expert Mr. Dolan. After vocational testing of employee and a review of her vocation profile, Mr. Dolan concluded, "Based on Mrs. Williams' education, work experience, academic skills, [and] work skills, and Dr. Berkin's permanent restrictions, Mrs. Williams is unable to perform any employment for which a reasonably stable market exists."5

Given Dr. Berkin's certification of employee's medical condition and work restrictions, and vocational expert Mr. Dolan's uncontroverted opinion regarding her employability in the open labor market, the majority's conclusion that employee is not permanently and totally disabled is against the weight of the evidence in this case. The majority's endorsement of the administrative law judge's finding that only a medical expert can establish that employee is unable to perform any work for purposes of a permanent total disability award is incorrect as a matter of law.

On this basis, I respectfully dissent.

Curtis E. Chick, Jr., Member

5 Transcript 553, 554.

Issued by DIVISION OF WORKERS' COMPENSATION Injury No. 08-108467

AWARD

Employee: Cherisse Williams

Dependents: NIA

Employer: Gate Gourmet, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Liberty Insurance Corporation (Settled)

Hearing Date: January 10, 2019

Injury No.: 08-108467

Before the Division of Workers'

Compensation Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

I. 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: November 30, 2008

5. State location where accident occurred or occupational disease was contracted: St. Louis County

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

7. Did emp1oyer 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 was employed as a truck driver for Employer and was unloading a cabinet that weighed approximately 30 pounds from a compartment on the airplane above her shoulders, when she developed a sharp pain between her shoulder blades and into her neck.

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

13. Part(s) of body injured by accident or occupational disease: Body as a Whole-Cervical Spine

14. Nature and extent of any permanent disability: 45% of the Body as a Whole-Cervical Spine

15. Compensation paid to-date for temporary disability: $45,789.71

16. Value necessary medical aid paid to date by employer/insurer? $113,048.21

Revised Fonn J J (3/97) Page I

Issued by DIVISION OF WORKERS' COMPENSATION Injury No, 08-108467

Employee: Cherisse Williams Injury No.: 08-108467

17, Value necessary medical aid not furnished by employer/insurer? NIA

18, Employee's average weekly wages: Sufficient to result in the appropriate rates of compensation

19, Weekly compensation rate: $397.28 for TTD/$397.28 for PPD

20, Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

21. Amount of compensation payable:

Employer's liability resolved by virtue of the compromise settlement

22, Second Injury Fund liability:

46,593 weeks of permanent partial disability $18,510.46

TOTAL: $18,510.46

23, Future requirements awarded: None

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

The compensation awarded to the claimant shall be subject to a lien in the amount of25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kevin D. Wayman,

Revised Form 31 (3/97) Pnge 2


FINDINGS OF FACT and RULINGS OF LAW:

Employee: Cherisse Williams

Dependents: NIA

Employer: Gate Gourmet, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Liberty Insurance Corporation (Settled)

Injury No.: 08-108467

Before the Division of Workers'

Compensation Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

On January 10, 2019, the employee, Cherisse Williams, appeared in person and by her attorney, Mr. Kevin D. Wayman, for a hearing for a final award on her claim against the Second Injury Fund. The employer, Gate Gourmet, Inc., and its insurer, Liberty Insurance Corporation were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by its attorney, Assistant Attorney General Mathew Kincade. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

STIPULATIONS:

I) On or about November 30, 2008, Cherisse Williams (Claimant) sustained an accidental injury arising out of and in the course of her employment that resulted in injury to Claimant.

2) Claimant was an employee of Gate Gourmet, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of $397.28 for total disability benefits and $397.28 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of$45,789.71, representing a period of time of 115 weeks.

8) Employer paid medical benefits totaling $113,048.21.

9) Claimant reached the point of maximum medical improvement from this work injury on June 7, 2011.

WC-32-R! (6-81) Page J


ISSUES:

I) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

2) What is the liability, if any, of the Second Injury Fund?

EXHIBITS:

The following exhibits were admitted into evidence:

Employee Exhibits:

I. Certified medical treatment records of St. Louis Orthopedic, Inc. (Dr. David Lange) dated June 20, 2005 to October 6, 2005

2. Certified medical treatment records of BarnesCare Westport 3. Certified medical treatment records of St. Louis Spine Care Alliance

(Dr. David Raskas and Dr. Patricia Hurford) 4. Certified medical treatment records of St. Louis Orthopedic, Inc. (Dr. David

Lange) dated May 26, 2009 to July 6, 2010 5. Certified medical treatment records of Dr. James Coyle 6. Certified medical treatment records of SSM/DePaul Medical Group at Cross Keys 7. Certified medical treatment records of The Work Center, Inc. 8. Certified medical treatment records of PRO Rehab 9. St. Louis Community College Transcript dated December 13, 2012 I 0. Synergy HomeCare Care Plan for Florence Washington 11. Stipulation for Compromise Settlement in Injury Number 08-108467 (Date of

Injury of November 30, 2008) between Claimant and Employer 12. Deposition of Dr. Shawn Berkin, with attachments, dated May 30, 2018 13. Deposition of Mr. J. Stephen Dolan, with attachments, dated June 20, 2018 14. Stipulation for Compromise Settlement in Injury Number 05-072472 (Date of

Injury of April 2, 2005) between Claimant and Employer

Second Injury Fund Exhibits:

Nothing offered or admitted into evidence

Notes: 1) The parties asked that I take Judicial and/or Administrative Notice of any prior settlements contained in any of Employee's prior Workers' Compensation cases in the files kept by the Missouri Division of Workers' Compensation. Without objection, I will take such Judicial and/or Administrative Notice of any such prior settlement documents contained in Employee's prior cases.

2) Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on January 10, 2019. No additional markings have been made since their admission on that date.

WC-32-Rl (6-81) Page 4


FINDINGS OF FACT:

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and deposition, the vocational opinion and deposition, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, I find:

I) Claimant is a 55-year-old, currently unemployed individual, who was working for Gate Gourmet, Inc. (Employer) as a truck driver on or about November 30, 2008. She worked for Employer for approximately 24 years, from 1984 to 2008, when she stopped working after her injury because Employer could not accommodate the restrictions placed on her by Dr. Coyle. Claimant testified that she was technically employed by Synergy for about a year after her 2008 injury, into 2018, basically being paid to provide home care for her aunt, but she has not worked anywhere else since 2008 because of the effects of all of her injuries/conditions.

2) Claimant testified that she graduated from Normandy High School in 1982. She also took classes for one year at Florissant Valley Community College for an associate's degree in childcare after her release from the doctor in 2011. She has not had any other formal education.

3) Claimant worked at McDonald's during high school, and, otherwise, has spent the rest of her working career at Gate Gourmet, Inc. (Employer). Claimant worked for Employer as a utility worker, preparing meals for airline flights, and, then, also as a truck driver. She worked full time, 40 hours per week, plus overtime, on a regular basis for Employer.

4) Claimant testified that she suffered her first injury at work in 2005. She said that she hurt her neck when she was loading airplanes with 40-pound carriers with bottled water in them. She said that she received treatment and surgery from Dr. Lange. She had complaints across her neck and into her shoulders, with numbness, tingling and a heavy feeling into the arm.

5) Medical treatment records from St. Louis Orthopedic, Inc. (Exhibit I) document the treatment she received from Dr. David Lange in 2005. At her first visit on June 20, 2005, Claimant reported a three-month history of neck pain going into her right shoulder, severe headaches, and right arm numbness going into her hand. The report indicated that she had had diagnostic studies that showed right carpal tunnel syndrome. Dr. Lange diagnosed Claimant with a significant degenerative disc at C5-C6, with right C6 radiculopathy, for which he recommended surgery. Dr. Lange took Claimant to surgery at DePaul Health Center on July 8, 2005. He performed a decompression of the right C6 nerve root, pai.tial vertebrectomy at CS and C6, anterior fusion at C5-C6, placement ofVG-2 implant at C5-C6 and placement of anterior UNIPLATE at C5-C6, to treat Claimant's degenerative C5-C6 disc, right C6 radiculopathy, congenital failure of segmentation at C4-C5 and cervical stenosis at C5-C6. Following surgery, she reported complete relief of the numbness in her right

WC-32-Rl (6-81) Page 5


arm, but ongoing neck aching. By October 6, 2005, she had some aching in the right trapezius area with lifting and negligible right arm symptoms. Dr. Lange gave her a note to keep her off work until November 1, but, otherwise, released her from care for her neck at that visit.

6) Claimant testified that she returned to the same job, full duty, without any permanent restrictions from the doctor for her neck, but was more cautious, and self-limited her activities to avoid aggravating her neck. She said that she missed work after the injury and estimated an additional week off work over time because of neck complaints. Claimant said that she would ask coworkers for help with lifting and she was slower than before the injury. She also noted that she stopped bowling and playing tennis after her neck surgery.

7) Although Claimant, initially, believed that she entered into a compromise lump sum settlement to resolve this case under the Missouri Workers' Compensation Act, a review of her prior files reveals no such neck claim or settlement from 2005.

8) Claimant did have a prior right wrist carpal tunnel syndrome claim in 2005, for which she had right carpal tunnel surgery. She said that she had swelling and aching in the hand, and she noted ongoing weakness in the hand following the surgery. She admitted that she had no permanent restrictions from a doctor, for the right hand after the surgery, but she was just careful with how she would use the hand.

9) Claimant and Employer resolved the April 2, 2005 injury (Injury Number 05-072472) by Stipulation for Compromise Settlement (Exhibit 14) for the payment of $11,552.65, or 17.5% permanent partial disability of the right hand/wrist and 2 weeks of disfigurement. This Stipulation was approved by Chief Administrative Law Judge Edwin J. Kohner on November 1, 2006.

10) According to the records of the Missouri Division of Workers' Compensation, Claimant's only other prior reported injury was a March 24, 2007 injury to her left lower leg. She apparently leaned into the cart with her left leg to keep the cart from falling, and felt pain in the left leg. The case was closed with only a minimal amount of medical paid and no settlement documenting any permanent partial disability as a result of the injury. In fact, Claimant admitted that she had no continuing problems with her left leg.

11) Claimant testified that between 2005 and 2008, as she continued to work for Employer, she would get help with loading the trucks and help with lifting some of the heavy items, like caniers with water or soda in them.

12) Claimant testified that on or about November 30, 2008, she suffered another injury to her neck while working for Employer. Claimant said that she was unloading a cabinet that weighed approximately 30 pounds from a compartment on the plane above her shoulders, when she developed a sharp pain between her shoulder blades and into her neck. She said that she knew she had hurt herself and she reported the injury to her supervisor. Employer sent her for medical treatment for her neck injury.

WC-32-Rl (6-81) Page 6

Issued by DIVISION OF WORKERS' COMP EN SA TION Injury No. 08-108467

13) Claimant received initial medical treatment for her injury at BarnesCare Westport (Exhibit 2) on December 3, 2008. The rep01t indicates a consistent history of working with a carrier overhead, when she felt pain to the right side of her neck and posterior shoulder, which also radiates to the left shoulder and down her upper back. She said her right arm felt "heavy" and she reported her prior neck fusion surgery. She was diagnosed with a neck sprain and sprain of the right thoracic region. She was prescribed physical therapy, medications and work restrictions. When Claimant continued to report complaints in her neck and into her arms, on December I 0, 2008, she was referred to a qualified orthopedic surgeon for an evaluation and decision on further treatment.

14) Claimant, next, came under the care of Dr. David Raskas at St. Louis Spine Care Alliance (Exhibit 3) on December 19, 2008. Claimant provided a consistent history of injury and of her continued complaints in the neck, right arm and, now, left arm. Dr. Raskas recommended continued light duty, medications, and an MRI of the cervical spine to further evaluate her neck condition. Claimant had the MRI on January 13, 2009, which showed a cervical disc herniation at C6-7, causing cervical radiculopathy. Dr. Raskas opined that the injury on November 30, 2008 was the prevailing factor in the cause of the C6-7 disc herniation, and her need for treatment for the cervical radiculopathy. He recommended a cervical epidural injection and ongoing work restrictions.

15) Dr. Patricia Hurford (Exhibit 3) administered the cervical epidural steroid injection under fluoroscopic guidance on February 24, 2009. Claimant reported that the injection did not help, so Dr. Raskas, on March 11, 2009, recommended selective nerve root blocks on the right at C7 and on the right at C4. Dr. Hurford administered the right C4 selective nerve root injections under fluoroscopic guidance on March 17, 2009 and March 31, 2009. Again, Claimant reported no relief from the injections. On April 8, 2009, Dr. Raskas recommended an EMG/nerve conduction study and Functional Capacity Evaluation (FCE) to try to get fu1ther clarity on the source of her continued complaints.

16) The Functional Capacity Evaluation (FCE) was performed at The Work Center, Inc. (Exhibit 7) on April 14, 2009. It showed she provided near full maximal effort throughout the evaluation. She was found to be capable of performing in the sedentary and some light-work demand level by lifting 20 pounds from floor to waist and 10 pounds overhead. It was noted that this did not meet the required demand for her usual and customary work as a truck driver. It was suggested that she seek a position that did not require her to lift greater than 10 pounds on an occasional basis with limited walking.

17) Dr. Hurford (Exhibit 3) performed the electrodiagnostic testing on April 22, 2009, which showed no evidence to support cervical radiculopathy, brachia! plexopathy, thoracic outlet syndrome or peripheral neuropathy. Dr. Raskas noted, on that same date, that her FCE showed good effort, but she was only capable of doing lighter sedentary type activity. He ordered a myelogram CAT scan to see if more surgery

WC-32-Rl (6-81} P11ge?


might be of benefit to her condition. On May 6, 2009, Dr. David Raskas read the CAT scan as showing significant spinal cord compression at C6-7 from the herniation at that level. He recommended surgery to address the condition and, once again, medically causally related the disc herniation and need for surgery to the November 30, 2008 work injury.

18) At this point, on May 26, 2009, Employer/Insurer sent Claimant back to Dr. David Lange at St. Louis Orthopedic, Inc. (Exhibit 4) for a second opinion independent spine evaluation. Dr. Lange diagnosed myeloradiculopathy due to a herniation at C6-7, which he medically causally related to the work injury of November 30, 2008. He explained why the work injury was the prevailing factor in the diagnosis and need for surgery, and not the pre-existing degenerative changes in the spine ( congenital fusion at C4-5 and prior surgical fusion at CS-6).

19) Dr. David Lange (Exhibit 4) took Claimant back to surgery at DePaul Health Center on August 7, 2009. He performed a decompression of the right C7 nerve root, anterior cervical fusion at C6-7, removal of the old DePuy UNIPLATE at CS-6, placement of interbody implants at C6-7 and placement of an anterior DePuy UNIPLA TE at C6-7, to treat Claimant's herniated C6-7 disc, right C7 radiculopathy and retained anterior spinal plate at CS-6.

20) As Claimant continued to follow-up with Dr. Lange (Exhibit 4) postoperatively, she reported gradual decreasing of her neck and arm complaints until November 17, 2009, when she, again, noted neck aching and complaints into her arms. There are references, following the surgery, to the lower screw crossing the caudal endplate of the C7 vertebral body, with Dr. Lange explaining that he had some trouble during surgery visualizing where to insert the screw. Dr. Lange noted that the fusion was still not solid as of November 17, 2009, so it was not unexpected to have residual symptoms. He recommended continued time for healing. When she continued to complain of neck and bilateral arm complaints, Dr. Lange suggested additional testing and/or removal of the hardware, if they could see that the fusion was solid.

2l)Medical treatment records from PRORehah (Exhibit 8) document the physical therapy Claimant attended at that facility from March 25, 2010 to July 2, 2010. The records seem to document some improvement in her condition during the therapy, but by July 1, 2010, she noted ongoing neck pain and throbbing on the right side of the neck, with aggravation of her neck complaints while doing computer work for the classes she is taking or carrying a full load of laundry. The records also document a Functional Capacity Evaluation (FCE) taken on June 30, 2010. The report notes that Claimant provided a fair effort, but she was self-limiting and had high subjective pain complaints, so the results showed what she was willing to tolerate, but not, perhaps, what her maximum capacity is. They concluded that she was able to safely function in the light-work demand level, but final disposition (restrictions) should be determined by a physician.

22) On April 26, 2010, Claimant reported being more active and feeling "stronger" from the physical therapy she attended (Exhibit 4). On June 7, 2010, she was, again, doing

\VC-32-Rl (6-81) Page S


somewhat better, but still with some paresthesias in the upper extremities. He ordered another FCE and more physical therapy. When Claimant was last examined by Dr. Lange on July 6, 2010, her complaints were, essentially, the same in the neck and the arms. He believed Claimant was capable of, at least, a trial back to work at her usual full-duty job. He recommended a final check in 60 days, but said that she showed no interest in pursuing the hardware removal.

23) Claimant testified that this second surgery from Dr. Lange did not help her complaints, so she was sent to Dr. James Coyle (Exhibit 5) for an evaluation and determination on the need for treatment. Dr. Coyle first examined Claimant on September 15, 2010. Claimant provided a consistent history of injury and of ongoing complaints in the neck and both arms. Dr. Coyle noted the presence of a congenital fusion at C4-5, a solid fusion at C5-6 and, most likely, a nonunion at C6-7. He diagnosed a pseudoarthrosis at C6-7 and recommended additional diagnostic tests, and an evaluation by an ear, nose and throat specialist before considering more surgery. He also noted the lower screw in the C7-Tl disc space and the need to evaluate the integrity of the disc at that level. Ultimately, Dr. Coyle recommended more surgery to address her ongoing issues, and he medically causally related the diagnoses and need for that surgery to the November 30, 2008 work injury.

24) Dr. Coyle took Claimant to surgery at the St. Louis Spine Surgery Center (Exhibit 5) on November 18, 2010. He performed removal of the anterior cervical instrumentation at C6-7, exploration of the pseudoarthrosis with removal of the interbody fusion cage and partial vertebrectomy at C6 and C7, anterior interbody arthrosis at C6-7 with Synthes machined allograft spacer, Infuse bone morphogenic protein and anterior cervical plate. Claimant continued to follow-up with Dr. Coyle after surgery, reporting decreasing neck pain, but some residual numbness in the arms. With the fusion consolidating nicely, he felt it appropriate to remove the anterior cervical plate. On February 17, 2011, Dr. Coyle took Claimant back to surgery to remove the anterior instrumentation at C6-7. On March 30, 2011, Claimant was doing well with a consolidated fusion, but some ongoing neck and arm complaints. He referred Claimant for a course of physical therapy and noted work restrictions of no overhead work, no lifting over 20 pounds and avoiding impact activities. By May 10, 2011, Dr. Coyle noted that she had a solid fusion from C4 through C7 and that her upper extremity dysesthesia was referable to C5-6. She had good strength and about 60% of normal range of motion in the neck. Dr. Coyle placed Claimant at maximum medical improvement and suggested a functional capacity evaluation to establish work limitations for her.

25) Claimant attended the Functional Capacity Evaluation at PRO Rehab (Exhibit 8) on May 31, 2011. The findings and commentary from the evaluator is remarkably similar to the prior FCE taken June 30, 2010. Claimant, again, provided a fair eff01i, but she was self-limiting and had high subjective pain complaints, so the results showed what she was willing to tolerate, but not, perhaps, what her true work capacity is at this time. They concluded that she was able to safely function in the light-work demand level, but final disposition (restrictions) should be determined by a physician.

WC-32-Rl (6-81) Pnge 9


26)In a report dated June 7, 2011, Dr. Coyle noted that he reviewed the FCE from May 31, 2011. He referenced the evaluator's impression that Claimant was selflimiting/guarding making it difficult to determine her true capacity. It was felt that Claimant could safely function in, at least, the light-work demand level. Dr. Coyle placed a permanent lifting restriction on her of 20 pounds, and no pushing or pulling greater than 44 pounds.

27) Claimant testified that she continues to see her primary care physician for medications to treat her ongoing complaints. Medical treatment records of SSM/DePaul Medical Group at Cross Keys (Exhibit 6) document Claimant's visits and treatment there from December 6, 2011 through September 2, 2013. The records show a number of visits during that time for chronic neck pain, for which the doctor prescribed medications. In addition to other various conditions for which Claimant treated, on August 20, 2013, Claimant also complained of numbness in her right leg, which prompted lumbar spine x-rays the next day. The lumbar spine x-rays revealed moderate facet hypertrophy at the lower levels, but no significant loss of disc height. At that same visit, Claimant noted ongoing, occasional numbness in her arms since her neck surgery.

28) Claimant testified that while treating for her neck, and after her release by Dr. Coyle, she took classes at Florissant Valley Community College toward a degree in childcare. Claimant's Transcript from St. Louis Community College (Exhibit 9) shows that she originally took classes from Fall 1982 through Spring 1984 in general courses like algebra, college writing and psychology, just to name a few. Then, in Spring 2010 through Spring 2012, Claimant took classes in childcare, development and education, culminating in an Associate' s Degree in Applied Science and Certificate of Proficiency in Early Care & Education, which were awarded on May 18, 2012. She had a cumulative GPA of2.63 on a 4.0 scale.

29) Claimant and Employer resolved this November 30, 2008 injury (Injury Number 08-108467) by Stipulation for Compromise Settlement (Exhibit 11) for the payment of $71,510.40, or 45% permanent partial disability of the body as a whole referable to the neck. The Second Injury Fund Claim was left open on the Stipulation. This Stipulation was approved by Chief Administrative Law Judge Lee B. Schaefer on September 22, 2014.

30) Claimant testified that for a period of about a year, from 2017 into 2018, she helped out her aunt, while the aunt was living at home, with basic household chores, like cooking, laundry and small tasks. She said that she was able to do this for her aunt because she worked at her own pace and sat down regularly. She said that she was paid as a home care attendant, at the request of her aunt, by Synergy HomeCare. Claimant estimated that she might spend as much as four hours a day as a companion for her aunt. Claimant testified that she applied to Synergy to take care of her aunt, but her aunt put the wheels in motion by telling Synergy she wanted Claimant to be paid for taking care of her. Claimant said that Synergy was doing her aunt a favor, by having Claimant get paid for taking care of her. Claimant had no other income since 2008, and the small amount she got for taking care of the aunt helped with the bills.

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She confirmed it was not a competitive process and she has not cared for anyone else for Synergy besides her aunt. However, she noted that she did help take care of her mom when she had cancer, but she was not paid, she just took care of her because it was her mom. She said that she is not employed by them anymore. However, she still visits her aunt, and her aunt will give her some money occasionally, but she is not employed.

3 I) The Care Plan from Synergy HomeCare (Exhibit I 0) documents the general home care items to be accomplished each day with the client. It includes things like taking out the garbage, doing laundry, cooking, cleaning and personal care items.

32) In terms of current complaints, Claimant testified that she continues to have constant, throbbing pain in the neck, especially with moving the neck or lifting. She still has numbness and tingling in her arms, and she said that her hands/arms feel heavy. She said that she wakes up with numbness in her arms depending on how she is laying. She reported being nauseous, at times, when she gets pain in the neck. She said that she cannot pick up a full laundry basket and she cannot even do all the grocery shopping at one time because of her complaints. Claimant noted that she Jays down, usually twice a day, for a half an hour at a time, and rests to relieve her complaints, as well as takes over-the-counter medications or medications from her doctor. She said that moving at her own pace helps. She noted that the location of the complaints is about the same as prior to 2008, but it is more intense now.

33) The deposition of Dr. Shawn Berkin (Exhibit 12) was taken on May 30, 2018 by Claimant to make his opinions in this case admissible at trial. Dr. Berkin is a boardcettified osteopathic family physician, who is also board certified as an independent medical examiner. He examined Claimant on two occasions, August 23, 2011 and April 11, 2018, for the purpose of independent medical examinations at the request of Claimant's attorney. He provided no treatment. Dr. Berkin issued his reports in this case on October 28,2011 and April 11, 2018, after his review of the medical treatment records and after performing physical examinations of Claimant. He testified consistent with the contents of his two reports. Dr. Berkin took a consistent history of the injury at work on November 30, 2008 and of Claimant's medical treatment and complaints following that injury, as well as of Claimant's pre-existing conditions/injuries and complaints. His physical examination of Claimant on August 23, 2011, revealed tenderness to palpation and Jost range of motion in the neck, but no trigger points or muscle spasms; normal muscle bulk and tone in the upper extremities, but decreased sensation over the lateral surface of the right upper arm; and a normal right wrist examination, except for the surgical scar and tenderness.

34) In his report dated October 28, 20 I I, Dr. Berkin opined that the work injury on November 30, 2008 was the prevailing factor in causing the cervical strain with rightsided radiculopathy and the herniated disc at C6-7, as well as her treatment and need for surgery. Medically causally related to the work injury on November 30, 2008, Dr. Berkin diagnosed a cervical strain with right-sided radiculopathy; a herniated cervical disc at C6-7; status post C6-7 discectomy, decompression of the right C7 nerve root and anterior cervical fusion with interbody implants and plating (including removal of

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the old plate at C5-6); pseudoarthrosis of the C6-7 cervical fusion; status post removal of surgical instrumentation, exploration of pseudoarthrosis and revision anterior interbody fusion; and, finally, status post removal of anterior instrumentation at C6-7. He rated Claimant as having 42.5% permanent partial disability of the body as a whole referable to the cervical spine on account of the November 30, 2008 injury and subsequent treatment. Pre-existing the November 30, 2008 work injury, Dr. Berkin diagnosed and rated 30% of the body as a whole referable to the cervical spine for her prior cervical condition, and 30% of the right wrist for the prior right carpal tunnel syndrome. He opined that the pre-existing disabilities represented a hindrance or obstacle to employment, and that the combination of the disabilities is significantly greater than their simple sum, so a loading factor should be applied. He offered some treatment recommendations, and some work restrictions, including limiting lifting to 3 5 pounds on an occasional basis and 25 pounds on a frequent basis, limiting pushing and pulling to 35-40 pounds, no lifting with her arms extended from her body, or lifting or working above shoulder level, and no forceful gripping, squeezing, pinching, pulling or twisting with the right hand/wrist. He also suggested her need to pace herself and take frequent breaks to minimize her symptoms.

35) Dr. Berkin examined Claimant a second time, on April 11, 2018, to assess her current clinical state, apparently because of the passage of time since his first examination. Claimant provided additional history that in June 2017, she started working for Synergy, a home health care agency, working two hours a day, taking care of her aunt in her home. She reported that her neck complaints were the same as her prior examination, including throbbing pain all the time, limited motion, and increased symptoms with lifting or performing activities. The results of her physical examination were similar to the prior examination, except for a new finding of palpable spasm in the neck, and a normal sensory examination in the upper extremities. Dr. Berkin's diagnoses regarding the November 30, 2008 injury remained the same. Pre-existing that work injury, he, more specifically, diagnosed a congenital cervical fusion at C4-5, a herniated disc at C5-6 and right carpal tunnel syndrome. Dr. Berkin's ratings of disability for the primary and pre-existing conditions remained unchanged from his initial report. Dr. Berkin provided a more detailed explanation in his second report on how the synergistic effect is based on the additional limitations imposed by the combination of the disabilities that are over and above the limitations and loss of function due to the disabilities considered separately. He, again, offered treatment recommendations and work restrictions. However, the work restrictions were changed to limiting lifting to 20-25 pounds on an occasional basis and 15 pounds on a frequent basis, and limiting pushing and pulling to 3 5 pounds, while keeping the rest of the restrictions, basically, the same.

36) On cross-examination, Dr. Berkin admitted that after her initial neck surgery in 2005, Claimant did have pain in the neck, but she went back to work without limitations. She had symptoms but she was able to work through it. As far as the change in the work limitations he placed on Claimant between his two reports, Dr. Berkin indicated that, overall, his recommendations were about the same. He did not think a 5 or 10-pound difference was that significant, and suggested that maybe he lowered the

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numbers a bit because she was a little bit older. He confirmed that her lifting restrictions were due to the disabilities in the neck and right upper extremity.

37) The deposition of Mr. J. Stephen Dolan (Exhibit 13) was taken on June 20, 2018 by Claimant to make his opinions in this case admissible at trial. Mr. Dolan is a certified vocational rehabilitation counselor. He evaluated Claimant at her attorney's request on November 1, 2012 to determine whether Claimant was able to be employed in the open labor market. He reviewed the extensive medical treatment records and the medical opinions in the course of his evaluation. He issued a report dated December 4, 2012, and he testified consistent with that report. Mr. Dolan characterized Claimant as having an excellent work history, with a proven track record of hard work and of being motivated to work. He noted her work restrictions imposed by Dr. Coyle and Dr. Berkin (from his first report in 2011), and also took a detailed listing of her own description of her limitations. Claimant's description of her daily activities seemed consistent with her description of her limitations. She said that she has to lie down every afternoon to ease the pressure on her neck, and she also described how she was able to tolerate going to school because it was not all day, every day. She noted that about twice a month she had to miss class or leave early because of neck pain. Mr. Dolan indicated that all of her vocational test results revealed achievement levels in reading, spelling and math below the average range for her age. He questioned how she earned an associate's degree with these scores, but noted it was in childcare. In terms of transferable skills, Mr. Dolan opined that Claimant had commercial driving skills that would transfer to other commercial driving jobs, and in his report he referenced childcare skills she was recently trained in. However, her restrictions prevent her from using those skills. Based on Claimant's education, work experience, academic skills, work skills, and Dr. Berkin's permanent restrictions, Mr. Dolan opined that Claimant is unable to perform any employment in the open labor market, and, further, that no employer in the usual course of business could reasonably be expected to hire Claimant in her present physical condition.

3 8) Mr. Dolan issued a couple of supplemental reports after his receipt and review of additional materials. After reviewing her community college transcript, the Care Plan and Activities Form from Synergy HomeCare and the updated report from Dr. Berkin, Mr. Dolan wrote letters dated May 10, 2013, March 8, 2018 and May I, 2018, in which he indicated that this new information did not change any of his previously stated opinions. He did not believe Claimant was capable of tolerating full-time competitive employment. With regard to the part-time work (two hours per day) taking care of her aunt for Synergy, Mr. Dolan testified that he was a little bit surprised that she was able to do that, but it was only two hours a day and taking care of a relative, so it was not full-time or competitive employment.

39) On cross-examination, Mr. Dolan admitted that Dr. Berkin did not opine Claimant was permanently and totally disabled from a medical standpoint, but he placed vocational restrictions on her that no employer in the normal course of business is going to allow, such as taking a break whenever she needs to do so. Mr. Dolan confirmed that the need for breaks was to keep her neck pain under control. With regard to Claimant's work taking care of her aunt for Synergy, Mr. Dolan testified that

WC-32-Rl (6-81) 1'11ge IJ


he did not know exactly how she was hired for that, but from his experience in the home care field, the standard is that the client (the aunt) would pick their own provider so the agency does not have to find someone.

40) On cross-examination by the Second Injury Fund, Claimant testified that she tried to apply for a childcare job after she stopped working for Employer, but she had to be able to pick up the kids, and she could not do that, so she did not get the job. She admitted that she also now has low back pain that limits her walking, but denied having any treatment for it prior to 2008. She noted that the low back pain started when caring for her aunt. She has borderline diabetes and, perhaps, neuropathy, but denied memory of a right foot injury in 2013, as well as denied having any problems with her right or left feet.

RULINGS OF LAW:

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and deposition, the vocational opinion and deposition, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, and based upon the applicable laws of the State of Missouri, I find:

There is no dispute in this case, and parties have agreed, that on November 30, 2008, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in an injury to her cervical spine. I find that Claimant was working as a truck driver for Employer and was unloading a cabinet that weighed approximately 30 pounds from a compartment on the airplane above her shoulders, when she developed a sharp pain between her shoulder blades and into her neck. Medically causally related to this November 3 0, 2008 work injury, I find that Claimant sustained a cervical strain with right-sided radiculopathy; a herniated cervical disc at C6-7; status post C6-7 discectomy, decompression of the right C7 nerve root and anterior cervical fusion with interbody implants and plating (including removal of the old plate at CS-6); pseudoarthrosis of the C6-7 cervical fusion; status post removal of surgical instrumentation, exploration of pseudoarthrosis and revision anterior interbody fusion; and, finally, status post removal of anterior instrumentation at C6-7. Consistent with the medical treatment records in evidence and the opinions of Drs. Lange, Coyle and Berkin, I find that the November 30, 2008 work injury was the prevailing factor in the development of these diagnoses, Claimant's need for neck treatment and surgery, and, the resultant disability in the cervical spine.

Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat.§ 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "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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Claimant bears the burden of proof on all essential elements of her Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S. W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). Claimant must establish a causal connection between the accident and injury. Id. at 198. The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence, Id. at 199.

In a Workers' Compensation case, expert medical testimony is not necessarily needed to establish the cause of the injury, if causation is a matter within the understanding of laypersons. Knipp v. Nordyne, Inc., 969 S.W.2d 236 (Mo. App. W.D. 1998) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S. W. 3d 220 (Mo. 2003). When the condition presented in a case is a sophisticated injury that requires surgical intervention or highly scientific technique for diagnosis, and especially when there is a serious question of pre-existing disability, then the proof of causation is not within the realm of lay understanding. Id. at 240.

As both issues in this case are so inter-related, I will address both of them together in the same section of the Award.

Issue 1: What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

Issue 2: What is the liability, if any, of the Second Injury Fund?

Under Mo. Rev. Stat. § 287.020.6 (2005), "total disability" is defined as the "inability to return to any employment and not merely .. , inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability is claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173 (Mo. App. E.D. 1995) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S. W.3d 220 (Mo. 2003).

Under Mo. Rev. Stat. § 287.190.6 (1) (2005), "'permanent partial disability' means a disability that is permanent in nature and partial in degree ... " The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717 (Mo. bane 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues, Id. at 704. Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the

• testimony of the Claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability, Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886,892 (Mo. App. 1975)(citations omitted).

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Additionally, under the 2005 amendments to the Workers' Compensation Law, the Legislature added further provisions that have an impact on the determination of the nature and extent of permanent disability. Mo. Rev. Stat.§ 287.190.6 (2) (2005) states,

Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

Therefore, according to the terms of this statute, it is incumbent upon the claimant to have a medical opinion from a physician that demonstrates and certifies claimant's permanent partial or permanent total disability within a reasonable degree of medical certainty. Further, if there are conflicting opinions from physicians in a given case, then objective medical findings must prevail over subjective findings.

In awarding permanent partial or permanent total disability for this injury under these statutory provisions, it is, thus, necessary to deal with each of these sections. Considering the competent and substantial evidence listed above, I find that the medical opinion from Dr. Berkin demonstrates and certifies, within a reasonable degree of medical certainty, that Claimant sustained permanent partial disability as a result of her pre-existing injuries/conditions, as well as the work-related injury on November 30, 2008, but his report and testimony is silent on permanent total disability or what may be the cause of any such permanent total disability.

In cases such as this one where the Second Injury Fund is involved, we must also look to Mo. Rev. Stat.§ 287.220 (2005) for the appropriate apportiomnent of benefits under the statute. In order to recover from the Fund, Claimant must prove a pre-existing permanent partial disability existed at the time of the primary injury. Then to have a valid Fund claim, that preexisting permanent partial disability must combine with the primary disability in one of two ways. First, the disabilities combine to create permanent total disability, or second, the disabilities combine to create a greater overall disability than the simple sum of the disabilities when added together.

In the second (permanent partial disability) combination scenario, pursuant to Mo. Rev. Stat. § 287.220.1 (2005), the disabilities must also meet certain thresholds before liability against the Second Injury Fund is invoked, and they must have been of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment should employee become unemployed. Messex v. Sac/ts Electric Co., 989 S.W.2d 206 (Mo. App. E.D. 1999) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S. W3d 220 (Mo. 2003). The preexisting disability must result in a minimum of 12.5% permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity. These thresholds are not applicable in permanent total disability cases.

Where the Second Injury Fund is involved and there is an allegation of permanent total disability, the analysis of the case, essentially, takes on a three-step process:

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First, is Claimant permanently and totally disabled?; Second, what is the extent of Employer's liability for that disability from the last

injury alone?; and Finally, is the permanent total disability caused by a combination of the disability from

the last injury and any pre-existing disabilities? In determining this case, I will follow this three-step approach to award all appropriate benefits under the Statute.

In order to successfully meet her burden of proof on the issue of permanent total disability, Claimant needed to present credible testimony on her own behalfregarding her continued problems, complaints and limitations associated with her various disabilities, as well as credible medical/vocational evidence to support her allegation of permanent total disability. In the case at bar, I find Claimant credibly testified concerning her ongoing pain and functional limitations that she attributes to her various disabilities, which are clearly enumerated in the medical treatment records.

I find that the evidence in the record also clearly establishes that Claimant has work restrictions and functional limitations on account of the problems/diagnoses in her neck and upper extremities. I find that the various Functional Capacity Evaluations (FCEs), as well as the reports and opinions of Dr. Lange and Dr. Coyle, all contain credible evidence that Claimant is unable to fully function, in unrestricted employment, at the current time. However, while it is clear Claimant could not return to the type of work she previously performed because of those restrictions, I find that none of this evidence contains the direct opinion that she is permanently and totally disabled either. All of the functional capacity evaluators reached the conclusion that Claimant was capable of functioning, at least, in the light-work demand level, and the physicians reviewing those FCEs, suggested a trial back at her regular full-duty job (Dr. Lange) or placed work restrictions on her that would allow her to function in that light-work demand level (Dr. Coyle). I find that none of this medical evidence directly supports an allegation of permanent total disability for Claimant.

The only medical evidence left in the record that could, then, potentially support such an allegation is the report and testimony of Dr. Shawn Berkin, who examined Claimant on her attorney's behalf for independent medical examinations on two occasions, and testified on Claimant's behalf(by deposition) at hearing. After an exhaustive review of Dr. Berkin's reports and deposition testimony, I am unable to find any reference to permanent total disability or Claimant's inability to work, much less any reference to what the cause of any permanent total disability for Claimant might be. I find that Dr. Berkin clearly provides opinions on permanent partial disability for the November 30, 2008 injury and Claimant's pre-existing conditions. I find that he even clearly opines on how the disabilities synergistically combine to create an overall disability greater than the simple sum of the disabilities. I find that the closest Dr. Berkin comes to offering an opinion on Claimant's ability or inability to work, is his placing work restrictions or functional limitations on Claimant. Admittedly, Claimant's vocational expert, Mr. Dolan, takes those work restrictions/limitations and uses them to form a basis for his opinion that Claimant is unable to obtain employment in the open labor market, but that vocational opinion on Claimant's inability to work is never echoed, endorsed or ratified by Dr. Berkin, or any other medical expert in this case.

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As noted above, I am required by statute to strictly construe the provisions of the Workers' Compensation Act when determining if benefits should be awarded. Strict construction means that a "statute can be given no broader application than is warranted by its plain and unambiguous terms." Harness v. Southern Copyroll, Inc., 291 S.W.3d 299,303 (Mo. App. S.D. 2009). "The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions." Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823, 828 (Mo. App. S.D. 2009) (citing 3 Sutherland Statutory Construction§ 58:2 (6th ed.2008)). "'A strict construction of a statute presumes nothing that is not expressed.' "Robinson v. Hooker, 323 S.W.3d 418,423 (Mo. App. W.D. 2010) (quoting Sutherland, supra).

Under Mo. Rev. Stat. § 287.190.6 (2) (2005), "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." The primary rule of statutory interpretation is to effectuate legislative intent through reference to the plain and ordinary meaning of the statutory language. Courts must presume every word, sentence or clause in a statute has effect, and the legislature did not insert superfluous language. Bateman v. Rinehart, 391 S.W.3d 441,446 (Mo. 2013). According to the Merriam-Webster Dictionary, "demonstrate" is defined as "to show clearly", "to prove or make clear by reasoning or evidence" or "to illustrate and explain especially with many examples." Black's Law Dictionary defines "demonstrate" as "to derive from admitted premises by steps of reasoning which admit of no doubt; to prove indubitably." According to the Merriam-Webster Dictionary, "certify" is defined as "to attest authoritatively" such as to "confirm", "to present in formal communication" or "to attest as being true or as represented or as meeting a standard." Black's Law Dictionary defines "certify" as "to authenticate or vouch for a thing in writing."

Therefore, based on the plain reading of the statute, strictly construed, and trying to give appropriate meaning to every word in the statute, I find that in order for Claimant to meet her burden of proving that she is permanently and totally disabled, she needed: 1) A physician; 2) to show clearly/prove by reasoning, evidence or the use of examples [demonstrate]; and 3) attest authoritatively or confirm in writing [certify], that she is permanently and totally disabled.

In the case at bar, I find that neither Dr. Berkin, nor any other physician, ever expressly opined that Claimant was permanently totally disabled, nor even opined directly on Claimant's ability or inability to work, except for the restrictions they placed on her. I find that the work restrictions/limitations Dr. Berkin placed on Claimant could certainly satisfy the requirement that he demonstrate, by use of examples, that Claimant is unable to work, but they do not clearly show that point, nor does Dr. Berkin, or any physician in the record, attest authoritatively, nor confirm in writing, that Claimant is permanently and totally disabled. While it is true his restrictions were subsequently used by a vocational expert to form the opinion that Claimant is unable to be employed in the open labor market, that clear attestation and written confirmation was from a vocational expert, not a physician, as is required by the statute. Therefore, I am left to conclude, based on my review of the medical opinions and testimony in evidence, that there is

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no physician who demonstrates and certifies that Claimant is permanently and totally disabled in this case.

Therefore, even though Claimant provided credible testimony on her own behalf that supported her Claim for permanent total disability, by virtue of failing to provide evidence from a physician that demonstrates and certifies her permanent total disability, I find that Claimant has failed to meet her burden of proof on the issue of permanent total disability. Her Claim for permanent total disability from the Second Injury Fund is denied.

Since Claimant failed to meet her burden of proving that she is permanently and totally disabled, the next step of the inquiry, then, is to determine the extent of Employer's liability for the last injury alone, and if the Second Injury Fund has any liability for permanent partial disability in this case.

Following her injury at work on November 30, 2008, Claimant developed a C6-7 herniated disc and right-sided radiculopathy, status post anterior cervical fusion, pseudoarthrosis at C6-7, revision cervical anterior inter body fusion, and, finally, removal of the anterior instrumentation at C6-7. I find that doctors, including even the treating physicians on behalf of Employer/Insurer, have placed significant restrictions on Claimant's ability to function in the workplace, such that she was unable to return to her regular employment that she held for over 20 years prior to this injury. Dr. Coyle placed a permanent lifting restriction on her of 20 pounds, and no pushing or pulling greater than 44 pounds, meaning that she could return only to the lightwork demand category. Dr. Berkin, who provided the most comprehensive reports on Claimant's condition, placed significant restrictions on her physical activities based on her various injuries/conditions, including the need to pace herself and take frequent breaks to minimize her symptoms. Additionally, Claimant credibly testified as to her continuing complaints and functional restrictions on account of her neck since the 2008 work injury.

The issue of nature and extent of permanent partial disability is further complicated in this case by the pre-existing neck injury and degenerative/congenital arthritis that is noted by virtually every doctor and diagnostic test in the record of evidence. Mo. Rev. Stat. § 287.190.6 (3) (2005) also provides that, "Any award of compensation shall be reduced by an amount proportional to the permanent partial disability determined to be a preexisting disease or condition or attributed to the natural process of aging sufficient to cause or prolong the disability or need of treatment." Therefore, in the case at bar, when determining how much permanent partial disability Claimant has in the cervical spine attributable to the work injury, I find that it is necessary to divide out any disability that pre-existed the November 30, 2008 work injury attributable to the prior, symptomatic cervical spine diagnoses and issues.

Based upon all of these findings, as well as based on Claimant's testimony and the medical evidence, I find that Claimant has 45% permanent partial disability of the body as a whole referable to the cervical spine, attributable to the November 30, 2008 work injury. I find that Claimant has an additional 25% permanent partial disability of the body as a whole referable to the cervical spine, attributable to the pre-existing cervical spine diagnoses and complaints, primarily at C4-5 and CS-6, for which she was previously treated. I arrived at this finding by taking into consideration the physical findings in the examinations of the physicians, including, but not limited to, Drs. Lange, Coyle and Berkin, as well as Claimant's continuing complaints

\VC-32-Rl (6-81)

Issued by DIVISION OF WORKERS' COMPENSATION lnj ury No. 08-108467

and problems with her cervical spine. I also took into consideration the prior conditions/injuries, complaints, symptoms, limitations and medical treatment for her cervical spine. Finally, I noted Claimant's settlement agreement with Employer that brought resolution to the claim against Employer prior to trial in this case.

Having now established the nature and extent of the permanent partial disability attributable to the primary injury against Employer, it is now appropriate to determine whether or not Claimant has successfully met her burden of proving Second Injury Fund liability for permanent partial disability based on the combination of her primary (November 30, 2008) injury and any pre-existing permanent partial disabilities. Having thoroughly considered all of the competent and credible evidence in the record, I find that Claimant has met her burden of proof to show an entitlement to a permanent partial disability award against the Second Injury Fund.

Claimant has alleged pre-existing disabilities to the right wrist and the body as a whole referable to her cervical spine that potentially combine with the disability from the primary 2008 cervical spine injury to trigger Second Injury Fund liability. In order for the alleged pre-existing disability to actually trigger Second Injury Fund liability, it must meet the appropriate threshold of 12.5% permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity and it must be found to have been a hindrance or obstacle to employment or re-employment, should Claimant become unemployed.

With regard to the pre-existing injuries and disabilities Claimant has alleged, I find Claimant has provided credible testimony and/or evidence to explain the nature of the injuries/disabilities to her neck and right wrist. She also credibly explained the various ways in which these disabilities impacted her ability to work, despite the fact that she continued to work full duty up until the 2008 injury. I also found medical treatment records and/or reports in evidence documenting the treatment Claimant received for her cervical spine and right wrist carpal tunnel syndrome, prior to the November 30, 2008 work injury. It is clear to me from Claimant's testimony and from review of the medical reports and opinions, that the prior neck and right wrist conditions were all disabling, to some extent, prior to the November 30, 2008 injury.

I, further, find Dr. Berkin's diagnoses and opinions on the pre-existing conditions to be competent, credible and reliable evidence. Dr. Berkin rated Claimant as having pre-existing permanent partial disability on account of the pre-existing conditions. Dr. Berkin, further, opined that the combination of the disabilities is significantly greater than their simple sum, so a loading factor should be applied. I find that he provided a more detailed explanation in his second report on how the synergistic effect is based on the additional limitations imposed by the combination of the disabilities that are over and above the limitations and loss of function due to the disabilities considered separately. Finally, Dr. Berkin opined that the disabilities represented a hindrance or obstacle to employment or re-employment.

Based on the totality of the evidence in the record, as described above, I find that Claimant had pre-existing permanent partial disabilities of 25% of the body as a whole referable to the cervical spine and 17.5% of the right wrist, which pre-existed the November 30, 2008 work injury.

\VC.J2-R! (6.81) Page 20


Given the applicable statutory thresholds of 15% of a major extremity or 12.5% of the body as a whole ( 50 weeks), I find that the pre-existing right wrist disability and the body as a whole disability referable to the cervical spine meet the statutory threshold to trigger Second Injury Fund liability. I further find that the pre-existing right wrist and body as a whole referable to the cervical spine disabilities were of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. Finally, consistent with Dr. Berkin's opinion on combination, I find that the combination of the preexisting and primary injury disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be added. I, therefore, find that Claimant is entitled to receive 46.593 weeks of compensation from the Second Injury Fund.

The Second Injury Fund argues that there is no synergistic combination of the disabilities and/or that the pre-existing disabilities did not represent a hindrance or obstacle to employment, since Claimant continued to work full-duty, without doctor-imposed restrictions, until the time of her November 30, 2008 work injury. I disagree. Claimant credibly testified how she had to modify the performance of her job duties due to her neck and right wrist conditions. While Claimant has both a pre-existing and primary disability at the level of the cervical spine, I find that the pre-existing disability was attributable to her C4-5 and C5-6 levels, while the primary (November 30, 2008) disability is attributable to the C6-7 level. Additionally, I find that her preexisting disabilities involved complaints into the right upper extremity, while her complaints following the November 30, 2008 primary injury also included her left upper extremity. I find it very significant that prior to November 30, 2008, she only had one affected upper extremity, but subsequent to it, both upper extremities were affected. I find that the involvement of both upper extremities, when a combination of her disabilities is considered, is a strong indicator that there is a synergistic combination of her disabilities and a greater overall disability than the simple sum, as opined by Dr. Berkin.

In order to calculate the amount of this award from the Second Injury Fund, I added together all of the qualifying disabilities and assessed a loading factor of 15% [45% of the body as a whole referable to the cervical spine (180 weeks)+ 25% of the body as a whole referable to the cervical spine (100 weeks)+ 17.5% of the right wrist (30.625 weeks)= 310.625 total weeks of compensation times the 15% loading factor= 46.593 weeks from the Fund]. I arrived at the 15% loading factor based on the credible evidence submitted at trial, the severity of the disabilities that combined to create the Second Injury Fund liability in this case, the involvement of symptoms in both upper extremities and the impact the combined disabilities had on Claimant's ability to work or compete for work in the open labor market.

Accordingly, the Second Injury Fund is responsible for the payment of 46.593 weeks of permanent partial disability pursuant to this award.

WC·32-Rl (6-81) Pag~ 21

Issued by DIVISION OF WORKERS' COMPENSA TJON Injury No. 08-108467

CONCLUSION:

Claimant sustained an accident on November 30, 2008, that arose out of and in the course of her employment for Employer, resulting in an injury to her cervical spine. Claimant was working as a truck driver for Employer and was unloading a cabinet that weighed approximately 30 pounds from a compartment on the airplane above her shoulders, when she developed a sharp pain between her shoulder blades and into her neck. Medically causally related to this November 30, 2008 work injury, Claimant sustained a cervical strain with right-sided radiculopathy; a herniated cervical disc at C6-7; status post C6-7 discectomy, decompression of the right C7 nerve root and anterior cervical fusion with interbody implants and plating (including removal of the old plate at C5-6); pseudoarthrosis of the C6-7 cervical fusion; status post removal of surgical instrumentation, exploration of pseudoarthrosis and revision anterior interbody fusion; and, finally, status post removal of anterior instrumentation at C6-7. Claimant sustained permanent partial disability as a result of this November 30, 2008 injury in the amount of 45% of the body as a whole referable to the cervical spine.

Even though Claimant provided credible testimony on her own behalf that supported her Claim for permanent total disability, by virtue of failing to provide evidence from a physician that demonstrates and certifies her permanent total disability, Claimant has failed to meet her burden of proof on the issue of permanent total disability. Her Claim for permanent total disability from the Second Injury Fund is denied.

However, Claimant met her burden of proof on her entitlement to permanent partial disability benefits from the Second Injury Fund. Claimant had pre-existing permanent partial disabilities of 25% of the body as a whole referable to the cervical spine and 17 .5% of the right wrist, which pre-existed the November 30, 2008 work injury. Based on the applicable thresholds, the pre-existing right wrist disability and the body as a whole disability referable to the cervical spine meet the statutory threshold to trigger Second Injury Fund liability. Claimant also met her burden of proof to show that the pre-existing right wrist and body as a whole referable to the cervical spine disabilities were of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. The Second Injury Fund is to pay 46.593 weeks of permanent partial disability benefits, or $18,510.46. Compensation awarded is subject to a lien in the amount of 25% of all payments in favor of Kevin D. Wayman, for necessary legal services.

Administrative law Judge ivision of Workers' Compensation

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issued by the labor and industrial relations …...section 287.190.6(2) provides, in pertinent part,...

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