Issued by THE LABOR AND INDUSTRIAL RELATIONS … · (1) All claims against the second injury fund...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION (Reversing Award and Decision of Administrative Law Judge)

Injury No.: 13-104240 Employee: Lisa Coffer

Employer: Health Management Associates, Inc./ Twin Rivers Regional Medical Center (settled)

Insurer: Liberty Insurance Corporation (settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to§ 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

Preliminaries The parties asked the administrative law judge to resolve the issue of Second Injury Fund liability.

The administrative law judge determined that the Second Injury Fund is liable for permanent total disability as a result of the combination of employee's pre-existing neck, low back, anxiety, colon cancer, and right elbow conditions and disabilities, and the bilateral hands and wrists condition and disability caused by the December 13, 2013 occupational disease.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred in applying § 287.220.2 RSMo to employee's claim, because the Missouri Workers' Compensation Law§ 287.010 RSMo, as amended in 2013, provides a permanent disability claim filed against the Second Injury Fund for occupational disease after January 1, 2014, is governed by§ 287.220.3 RSMo.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Findings of Fact Employee worked for Health Management Associates, for 23 years, beginning in 1990, engaged for the most part, as a PBX operator. The last day she worked was December 13, 2013, when she was taken off work by her doctor related to pain in her hands, wrists, and elbows. On December 7, 2013, a nerve conduction study was done, which revealed severe left carpal tunnel syndrome and entrapment of the left ulnar nerve across the elbow; and mild to moderate right carpal tunnel syndrome with entrapment of the right ulnar nerve as well.

On December 13, 2013, employee sustained an occupational disease (bilateral carpal tunnel syndrome) arising out of and in the scope of her employment with employer. Employee was previously diagnosed and treated for colon cancer, undergoing surgery

Injury No. 13-104240 Employee: Lisa Coffer

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in 2004, and also developed anxiety after this event. Employee underwent cervical discectomy and fusion at C5-6 in 2011. She developed low back pain in 2006, for which she underwent disc decompression at L4-5, L5-S1 in March 2008. On February 6, 2012, employee underwent surgery to repair her right lateral epicondylitis (elbow). No evidence was provided to show that any of the pre-existing disabilities claimed by employee fell within the conditions enumerated in§ 287.220.3(2). Employee filed an occupational disease claim for workers' compensation on November 24, 2014, seeking permanent total disability benefits from the Second Injury Fund.

Dr. Robert Paetz opined that employee was permanently and totally disabled as a result of the combination of pre-existing and primary injuries. He found her to be at maximum medical improvement as of December 13, 2013, although she could get benefit from additional treatment. He rated employee's primary injury disability at 30% permanent partial disability of the right hand and wrist and 25% permanent partial disability to the left hand and wrist. Dr. Paul Hinton agreed that employee was permanently and totally disabled as a result of the combination of pre-existing and primary injuries, but rated the primary injury at 18. 75% permanent partial disability of each wrist. A vocational rehabilitation specialist, Ms. Susan Shea, evaluated employee on March 21, 2017, and opined that employee was permanently and totally disabled due to restrictions and limitations from her extensive pre-existing conditions in combination with her bilateral carpal tunnel syndrome, and that no employer would hire the employee reasonably expecting her to perform the job for which she is hired. Employee also credibly testified regarding her pain, current symptoms and limitations, and her belief that she is unable to perform any employment.

We find that employee was permanently and totally disabled as a result of the combination of her pre-existing and primary injuries, and that the disability rating attributable to her bilateral carpal tunnel syndrome work-related occupational disease was 22.75% to the right wrist and 20% to the left wrist. We find employee provided no evidence that any of her pre-existing disabilities met a required condition set forth in § 287.220.3(2)(a) or (b).

On March 1, 2016, employee settled her claim against the employer/insurer for 18.75% permanent partial disability of the body as a whole referable to carpal tunnel syndrome in both wrists.

The parties stipulated at the hearing on January 16, 2019, that the date of onset of the occupational disease was December 13, 2013. Employee filed her occupational disease claim for permanent total disability benefits against the Second Injury Fund on November 24, 2014. The parties further stipulated before the administrative law judge, that appellate jurisdiction remains with the Missouri Court of Appeals, Southern District.

Conclusions of Law Due to the date of the filing of employee's claim in 2014, § 287.220.3(1) RSMo, applies in this matter.


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Section 287.220.3 provides as follows:

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

(Emphasis ours.)

We focus our decision on the language of the statute addressing a subsequent compensable injury which is an occupational disease filed after January 1, 2014. The statute clearly states such injuries, by occupational disease, "shall be compensated as provided in this subsection," i.e. subsection 3, as opposed to subsection 2. 1 We understand this language to mean that when one (a) files a workers' compensation claim (b) against the Second Injury Fund where (c) the subsequent compensable injury is an occupational disease and (d) the filing date is after January 1, 2014, then § 287.220.3 RSMo, applies.

Here, employee's claim against the Second Injury Fund involves a subsequent compensable injury which is an occupational disease. Employee filed her claim on November 24, 2014. Therefore,§ 287.220.3 RSMo, applies in this matter. The language of subsection 3 is clear and unambiguous, requiring that a claim against the Fund involving an occupational disease filed after January 1, 2014, is governed by that subsection. We must read and apply the statute under the dictate of strict construction, which means we cannot presume anything not expressed by the actual words chosen by the legislature.2 § 287.800 RSMo.

Employee is seeking permanent total disability benefits against the Second Injury Fund. In reviewing employee's claim as required under§ 287.220.3(2), the language of the subsection clearly shows her claim for permanent total disability is not compensable against the Second Injury Fund. Employee's pre-existing disabilities do not meet the allowable conditions prescribed by the statute, as amended in 2013.

1 This particular issue was a matter of first impression, until the Missouri Court of Appeals, Eastern District issued its decision in Bruce Krysl v. Treasurer of Missouri as Custodian of/he Second Injury Fund, No. ED107591 (Oct. 1, 2019, as corrected on October 22, 2019, request for rehearing or transfer denied, November 4, 2019). The Court held that the date of injury assigned to Krysl's occupational disease (1/1/13) was determinative as to which subsection prevailed. At the time of this writing, that matter was awaiting finality. The time for requesting transfer directly to the Supreme Court under Court Rule 83.04 had not yet expired. In so ruling, the Missouri Court of Appeals, Eastern District, reversed the Commission in its ruling that the date of filing the occupational disease claim was determinative. In contrast to our analysis in this case, and our analysis in the Krys/ case, the Eastern District Court's decision gave no effect to the plain and unambiguous words, "filed after,'' in subsection 3. 2 We also note that the Chairman of the Commission was a member of the 97 th General Assembly and voted on the exact changes. This exact fact pattern was expressly contemplated during the debate and was meant to be covered by the plain and unambiguous words "filed after'' in§ 287.220.3 RSMo.


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Subsection 287.220.3 provides as follows:

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287 .200 against the second injury fund shall be compensable only when the following conditions are met: (a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is: (i) A direct result of active military duty in any branch of the United States Armed Forces; or (ii) A direct result of a compensable injury as defined in section 287.020; or (iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or (iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

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

Employee has not provided evidence that her preexisting conditions and disabilities fall under any of the allowable criteria designated in subsection 3 (2). Because § 287.220.3 RSMo, prevents employee's claim for permanent total disability against the Second Injury Fund, as a matter of law, we must deny employee's claim. All other issues are moot.3

We reverse the award of the administrative law judge.

Employee's occupational disease claim against the Second Injury Fund for permanent total disability is denied because it is barred by§ 287.220.3 RSMo.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten is attached solely for reference.

3 We acknowledge that the parties stipulated to the date of injury of the occupational disease as December 13, 2013. However, the stipulation does not change the filing date. Nor does such stipulation prevail over the language of the statute.


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Given at Jefferson City, State of Missouri, this ::zs-t~day of November 2019.

Secretary

LABOR AND INDUSTRIAL RELATIONS COMMISSION

< c,ertW.

Reid K. Forrester, Member

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


DISSENTING OPINION

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

The majority has denied the employee's permanent total disability claim against the Second Injury Fund (Fund). Based on my review of the evidence, it is clear the employee is permanently and totally disabled from a combination of her occupational disease and her pre-existing disabilities. The issue then is whether the 2013 amendments to the statute were intended to deny compensation under these circumstances.

Employee's occupational disease of bilateral carpal tunnel syndrome developed over years of work with the employer. She was employed there for 23 years and encountered many additional health problems during her tenure, resulting in disabilities over that time. Those prior disabilities did not render her to be totally disabled in themselves. The parties stipulated to the date of injury or identified onset of the disease as December 13, 2013. I believe the administrative law judge was correct in finding that this case should be considered under the section of the law governing "all cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014 ... " § 287.220.2 RSMo. Clearly, all her pre-existing disabilities arose prior to that date, and the parties stipulated that the injury by occupational disease was prior to January 1, 2014. Giving meaning to the unambiguous terms of this section of statute addressing Fund liability, one must read the term "all cases of permanent disability" to apply to the matter before us.4 That is, a case of permanent disability, where there has been "previous disability due to injuries occurring prior to January 1, 2014."

I am aware of the recent Cosby5 case from our Supreme Court. I do not find that it would preclude us from applying subsection 2, allowing a Fund claim under these circumstances. The work injury in Cosby was an accidental injury to the claimant's knee, in contrast to the occupational disease case which is before us now. The distinction being that an injury by accident is a discrete event, as opposed to the development of disabling conditions which eventually prompt the claim for occupational disease. Another distinction in Cosby was the claimant was seeking permanent partial disability against the Fund, which is clearly not allowed for injuries occurring after January 1, 2014.

4 This was the approach in the case of Bruce K,ys/ v. Treasurer of Missouri as Custodian of the Second /nju,y Fund, No. ED107591 (Oct. 1, 2019, as corrected on October 22, 2019, Motion for rehearing or transfer denied by Missouri Court of Appeals, Eastern District, on November 4, 2019). While the Commission found that Mr. Krysl's occupational disease of carpal tunnel syndrome occurring in 2013, was governed by the amendments to the statute,(§ 287.220.3 RSMo), the Court reversed that ruling, finding that the language of subsection 2, referencing "all cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014 ... " governed Krysl's claim. 5 Cosby v. Treasurer of the State of Missouri, as Custodian of the Second lnju,y Fund, 579 S.W. 3d 202, (Mo. 2019).

Injury No. 13-104240

Employee: Lisa Coffer - 2 -

As noted by the separate opinion (concurring in part and dissenting in part) by Judge Laura Denvir Stith, in Cosby, '~dmittedly, sections 287.220.2 and 287.220.3(2) are confusing if read in isolation. Subsection 3 clearly bars permanent partial disability claims against the second injury fund when the claim of permanent partial disability occurs after January 1, 2014. But this confusion cannot be resolved by interpreting out of existence the language of subsection 2." Id. at page 4 of Stith opinion. Judge Stith further notes, "Where two statutory provisions covering the same subject matter are unambiguous standing separately but are in conflict when examined together, a reviewing court must attempt to harmonize and give them both effect." S. Metro Fire Prat. Dist. v. City of Lee's Summit, 278 S.W. 3d 659, 666 (Mo. Banc 2009).

Judge Stith continued at page 5 of her separate opinion, "The two provisions can both be given effect by interpreting section 287.220.2 to apply to those cases in which an employee has suffered a previous permanent disability before January 1, 2014, and then suffers a new injury. Section 287.220.3, on the other hand, would apply to all cases in which an employee first suffered a permanent disability after January 1, 2014. This gives meaning to all the provisions of the statute without reading into subsection 2 language that simply is not there." Cosby at 212. While the nature of injury affecting Mr. Cosby was different than employee's occupational disease in this case, employee also suffered a previous permanent disability before January 1, 2014 and then suffered a new injury, the scenario which Judge Stith found to invoke subsection 2.

I believe that the majority is ignoring subsection 2 in denying employee's occupational disease claim, which is a case of permanent disability (as addressed in subsection 2), occurring along with other previous disabilities before January 1, 2014. Therefore, if one gives full effect to the words of subsection 2, employee's permanent total disability claim is covered by§ 287.220.2, as maintained by employee. As such, I would conclude the Second Injury Fund is liable for permanent total disability benefits, after consideration of the employer's extent of the liability as found by the administrative law judge.

I respectfully dissent.

Employee: Lisa Coffer Injury No. 13-104240

Employee:

Dependents:

Employer:

Additional Party:

Insurer:

Appearances:

Hearing Date:

ISSUED BY DIVISION OF WORKERS' COMPENSATION

FINAL AWARD

Lisa Coffer lnjuryNo. 13-104240

NIA

Health Management Associates, Inc. / Twin Rivers Regional Medical Center (Settled)

Second Injury Fund

Liberty Insurance Corporation (Settled)

D. Matthew Edwards, attorney for the employee. Rachel Harris, attorney for the Second Injury Fund.

January 16, 2019 Checked by: LCK/kg

SUMMARY OF FINDINGS

1. Are any benefits awarded herein? Yes.

2. Was the injuiy 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? December 13, 2013.

5. State location where accident occurred or occupational disease contracted: Dunklin County, Missouri.

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

7. Did the 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.

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I 0. Was the employer insured by above insurer? Yes.

11. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee developed bilateral carpal tunnel syndrome from repetitive work activities and duties with her upper extremity.

12. Did accident or occupational disease cause death? No.

13. Parts of body injured by accident or occupational disease: Right hand at 1i,,rist and left hand at wrist.

14. Nature and extent of any permanent disability: 22.75% of the right hand at the wrist and 20% of the left hand at the wrist.

15. Compensation paid to date for tempora1y total disability: $0

16. Value necessary medical aid paid to date by the employer-insurer: $2,868.72

17. Value necessary medical aid not furnished by the employer-insurer: NIA.

18. Employee's average weekly wage: $500

19. Weekly compensation rate: $333.33 for permanent partial disability and permanent total disability.

20. Method wages computation: By agreement.

21. Amount of compensation payable: See Rulings of Law.

22. Second Injury Fund liability: Permanent total disability.

23. Future requirements awarded: See Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: D. Matthew Edwards.

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STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW

On January 16, 2019, the employee, Lisa Coffer, appeared in person and with her attorney, D. Matthew Edwards for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General Rachel Harris. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

UNDISPUTED FACTS:

1. The parties agreed that the final hearing will be heard in Cape Girardeau but appellate jurisdiction remains with the Southern District Court of Appeals.

2. Health Management Associates, Inc. / Twin Rivers Regional Medical Center was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Liberty Insurance Corporation.

3. On or about December 13, 2013, Lisa Coffer was an employee of Health Management Associates, Inc. / Twin Rivers Regional Medical Center, and was working under the Workers' Compensation Act.

4. The employer had notice of the employee's alleged occupational disease as required by law.

5. The employee's claim for compensation was filed within the time allowed by law. 6. The employee's average weekly wage was $500. The rate of compensation for pern1anent

total disability and permanent partial disability is $333.33 per week. 7. Prior to the compromise settlement, the employer-insurer did not pay any medical aid. As

part of the compromise settlement, the employer-insurer paid $2,868.72 for future medical.

8. The employer-insurer paid no temporary disability benefits.

ISSUES:

1. Occupational disease. 2. Medical causation. 3. Liability of the Second Injury Fund for either permanent total disability or permanent

partial disability.

EXHIBITS:

Employee Exhibits:

1. Stipulation for Compromise Settlement in Injury No. 13-104240 2. Medical Records from Twin Rivers Regional Medical Center 3. Medical Records from St. Francis Medical Center 4. Medical Records from St. Bernard's Hospital

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Employee: Lisa Coffer Injmy No. 13-104240

5. Medical Records from Washington University Physicians 6. Medical Records from Barnes-Jewish Hospital 7. Medical Records from Kennett Clinic 8. Medical Records from Kennett Orthopaedic Center 9. Medical Records from Rehab Services Pro of Kennett I 0. Medical Records from Neurology Associates of NE Arkansas 11. Medical Records from St. Bernard's Neurosurgery 12. Medical Report from Dr. Robert Paetz 13. Deposition of Dr. Paul Hinton including his C.V. and report 14. November 17, 2017 Deposition of Susan Shea including her C.V. and report 15. September 25, 2018 Deposition of Susan Shea including her addendum report

Ruling on Admissibility to Employee Exhibit 12 and Employee Exhibit 14:

At the hearing, the Second Injury Fund objected to the admission of Exhibit 12 alleging that Dr. Paetz was unavailable for cross examination and was not available within 7 days of the hearing to be cross examined. The employee stated that in February of 2017, Dr. Poetz's report was tendered to the Second Injury Fund under Section 287.210.7 RSMo, more than a year prior to their request to take his deposition. At the time the Second Injury Fund requested his deposition, Dr. Paetz was unavailable for deposition and later passed away. The Second Injury Fund argued that under Section 287.210.7 RSMo, the physician must be made available for cross examination up to 7 days before the hearing.

At the hearing, the Second Injury Fund objected to portions of Exhibit 14 which was Susan Shea's November 17, 2017 deposition and her report that related to Dr. Paetz. The specific portions of the deposition that was objected to were page 16, lines 18-25; page 17 lines 1-7, 13-14 and 18-22; page 24 lines 15-23; page 38 lines 12-25; page 39 lines 1-2 of her deposition. The pages of her report objected to were pages 6-1 0; 18 and 21.

At the hearing, the objections to Exhibits 12 and 14 were taken under advisement. In the proposed Awards, the attorneys made additional arguments on behalf of their respective clients.

In JvfcDowe/1 v. Mo. Dep 't of Transportation, Injmy No. 12-042672 (Mo. LIRC dee. March 3, 2017), The Missouri Labor and Industrial Relations Commission held that Section 287.210. 7 RS Mo codifies an exception to the hearsay rule by allowing admission of the complete report of a treating or examining physician without other foundational evidence, subject to a pmiy' s compliance with specified procedures set f011h in the statue including the requirements that a pmiy give notice to the other side within sixty days of the hearing that it intends to submit a repo11 in lieu of testimony of its medical expe11 and also provide the other side a "reasonable opportunity" to obtain cross-examination testimony from the treating or examining physician. On August 14, 2014, the employee provided notice to the employer 60 days in advance of the hearing to submit Dr. Stillings· report in evidence. The employee's attorney offered possible dates and contact information to schedule a deposition. The employer did not depose Dr. Stillings prior to him passing away on March 16. 2015. The final hearing was held on April 6, 2016. The Commission stated that there was no evidence that the employee placed unreasonable

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restrictions on Dr. Stilling's availability. Dr. Stilling's unavailability nearly 7 months after the employee's 60 day notice was not something that the employee caused or could have avoided. The employer's delay of nearly 7 months in deposing Dr. Stillings was not relevant to the issue of whether the employee provided reasonable access and reasonable opportunity to depose him. The Commission found that employee provided the employer with a reasonable opportunity to obtain Dr. Stilling's cross-examination testimony as set forth in Section 287.210.7 RSMo.

In Ms. Coffer's case, on February 17, 2017, the employee submitted a complete medical report of Dr. Robe1i Poetz pursuant to Section287.210.7 RSMo. The employee's attorney stated that the employee intended to submit the testimony of Dr. Robe1i Poetz on the issues in controversy by his complete medical report dated January 18, 20 I 7. On February 17, 2017 a copy was sent to the Second Injury Fund's attorney. A letter enclosing an Intent to Submit Complete Medical Report Pursuant to Section 287.210. 7 RS Mo dated February 17, 2017 was received by the Division of Workers' Compensation on February 21, 2017. A letter dated February 17, 2017 from the employee's attorney to the Second Injury Fund's attorney stated that "I intend to submit the testimony of Dr. Poetz into evidence on the issues in controversy by the complete medical report. If you wish to cross~examine Dr. Poetz, please let me know and I will make arrangements for the deposition at your cost." The employee was evaluated by Susan Shea on March 21, 2017, the employee's deposition was taken on April 24, 2017, Ms. Shea issued a report, and her deposition was taken on November 17, 2017.

A letter dated Januaty 8, 2018 from the employee's attorney to the Division stated that the employee had been ready for hearing for several months. He requested that a phone conference or other setting be scheduled to establish a discove1y schedule for the Second Injury Fund. A telephone conference was held on February 7, 2018 with the patiies. The minute entry of the Honorable Maureen Tilley noted that the Second Injury Fund had an evidentiary issue regarding the repmi of Dr. Poetz and would be filing a Motion to Object to the Repoti of Dr. Poetz. Said Objection was filed with the Division on February 20, 2018. The employee's Response was filed on February 26, 2018. On March 12, 2018 Judge Tilley had a phone conference with the patiies. Her minute entiy noted that Dr. Poetz was no longer available for cross-examination. On October 23, 2018, the employee's Request for Final Hearing was approved. On November 6, 2018 Notice of the Final Hearing was sent out notifying the parties it was scheduled on January 16,2019.

Section 287.210.7 RSMo states in pe1iinent pati that "The pai1y intending to submit a complete medical rep011 in evidence sha!J give notice at least sixty days prior to the hearing to all paiiies and shall provide reasonable oppo1iunity to all pai1ies to obtain cross-examination testimony of the physician by deposition ... The party offering the repo1i must make the physician available for cross-examination testimony by deposition not later than seven days before the matter is set for hearing."

Since Dr. Poetz has not been available since February of 2018, it is the Second Injury Fund's position that his report is not admissible. I find that Section 287.210.7 RSMo does not require the offering party to make the physician available for cross-examination testimony up to 7 days before the hearing or within 7 days before the hearing. I find that it requires that the

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offering party provide reasonable opportunity to obtain cross examination of the physician but at a minimum be available for cross examination at least 7 days prior to the hearing. Dr. Poetz was available for cross-examination beginning on Februaiy 17, 2017 which was almost two years earlier than the final hearing that was set and held on January 16, 2019. I find that Dr. Poetz was therefore available for cross examination no later than 7 days before the date of the hearing. The Second Injury Fund had numerous months during 2017 to take the cross examination testimony of Dr. Poetz but chose not to. After Dr. Poetz was unavailable, the Second Injury Fund objected to his report.

Based on a review of the circumstances, I find that the employee complied with all the requirements in Section 287.210.7 RSMo regarding the submission of Dr. Poetz's report into evidence. Dr. Poetz was available for cross examination testimony starting on February 17, 2017. I find that the employee provided reasonable opportunity for the Second Injury Fund to obtain the cross-examination testimony of Dr. Poetz by deposition but did not do so. The Second Injury Fund's objections to the admission of Employee Exhibit 12 and to admission of the pmtions in Employee Exhibit 14 regarding Dr. Poetz are overruled. Employee Exhibit 12 and Employee Exhibit 14 are admitted into evidence in their entirety.

Second Injury Fund Exhibits:

A. Deposition of Lisa Coffer

Judicial Notice of the contents of the Division's file for the employee was taken.

WITNESSES:

Lisa Coffer, the employee and David Coffer, the husband of the employee.

PROPOSED A WARDS:

The employee and the Second Injury Fund filed their proposed Awards on Februaiy 13, 2019.

STATEMENT OF THE FINDINGS OF FACT:

The employee testified that she was born in 1964, has been rnanied to her husband David Coffer since 1980, and lives in Kennett. Missouri. She attended high school at SenathHornersville. She left school in the 10th grade when she became pregnant and ma1Tied David. They have 4 children. One child passed away and the other three are adults and live on their own. In school she mainly got A and B's. She never has taken a GED class or test. She has no problems with reading and writing. She can perfom1 basic math but nothing more complicated. She is 5'4" tall and weighs 313 pounds. She had gained about 20-25 pounds since 2014 and attributes her weight gain to inactivity. She is right handed and was never in the military.

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The employee testified that after she was married she was a housewife and mother. In 1990, she started working at Twin Rivers Regional Medical Center in Kennett in the housekeeping department. After 6 months or so, she transfened to the business office and became a PBX operator. PBX operators answered phones and redirected calls. The duties changed over time, and went to a computer system with a keyboard. She worked as a PBX operator for 23 years.

The employee testified that in late 1993 or early 1994 she had a non-work related motor vehicle accident. Her husband was driving and rear ended another vehicle. Her head went through the windshield, and she sustained head and neck injuries. She was off work for about 3 days, and continued to have ongoing problems with neck pain and stiffness, and headaches. Her symptoms got worse over time.

David Coffer testified that he works at American Railcar in Paragould, Arkansas. In the early to mid- l 990s, he was driving with his wife and rear ended a car. The employee was thrown into the windshield and had to be cut out of the vehicle. After the accident she had a lot of problems with her arm, head and neck.

The employee testified that due to her symptoms, her family doctor ordered a neck MRJ which showed a herniated disc. She started treating with Dr. Kee Park in 2001.

In August of 2001, the employee saw Dr. Park due to disabling neck pain and left am1 pain, numbness and weakness. Dr. Park noted the prior cervical MRI showed a left-sided C5-6 disc herniation. In September of2001 Dr. Park performed a CS-6 anterior cervical discectomy and fusion for the left-sided disc herniation.

The employee testified that after the fusion, she was off work for 12 weeks and used her sick time. She returned as a PBX operator and changed how she performed her job. She had to position differently due to limited mobility and pain, and move her body and not her neck. The surgery helped but she continued to have pain and headaches.

In March of 2003, the employee saw Dr. Park due to increased neck pain. After the neck fusion she had done well until about a month before when she had neck pain going into her shoulders bilaterally with some numbness and tingling in the left mm. Dr. Park ordered a cervical CT with reconstruction. The March 25 cervical CT scan showed bone screws in the 5th

cervical ve11ebrae, but no evidence of a herniated disc. Dr. Park stated that the CT was not done with sagittal reconstructions and it appeared that the C5-6 fusion was stable but he could not be certain. Dr. Park ordered a cervical myelogram for possible recunent disc herniation or pseudoarthrosis. The April 9, 2003 post myelogram CT scan showed mild spondylosis at C4-5 and C6-7 with small posterior osteophytes somewhat eccentric on the left at C6-7: and a small central osteoph)1e which did not encroach upon the cord or significantly naiTow the CS-6 canal.

Mr. Coffer testified that after the neck surgery, the employee had limited neck mobility on each side. They were involved with coaching baseball for their children. The employee was the scorekeeper. After the neck injury, she had a hard time keeping up with the games due to

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problems turning her head. The employee testified that up to 2013 she took over-the-counter medication including Tylenol at work for her neck. Outside of work she had problems with overhead activities.

The employee testified that she developed colon cancer in 2004 and was refen-ed to Barnes-Jewish Hospital in St. Louis.

On April 28, 2004, due to abdominal pain, the employee had an ultrasound of her upper abdomen which showed no significant lesions. On May 6, the employee had a colonoscopy due to hematochezia and abdominal pain. The colonoscopy showed a 2 cm mass mucosa in-egularity in the right colon. Biopsies were taken. On June 7, 2004, the employee saw Dr. Fleshman at Barnes-Jewish for abdominal pain and questionable cancer in the ascending colon. A CT of the abdomen and pelvis and a colonoscopy were ordered. The June 28 colonoscopy revealed a 3 cm mass and the pathology repo1i showed an invasive moderately differentiated adenocarcinoma extending into the submucosa. On June 29, Dr. Fleshman performed a laparoscopy with conversion to open with subsequent right colectomy and left oophorectomy. The postoperative diagnosis was right colon cancer and left complex ovarian mass. The employee was released from the hospital on July 3, 2004.

The employee testified that after she was released from the hospital she developed a wound infection and had to have another surgery.

On July 9, 2004, the employee went to Twin Rivers Regional Medical Center due to a wound abscess following a right hemicolectomy that had developed purulent drainage and induration around the midline incision. The wound was opened, in-igated and drained.

On July 19, 2004, due to redness and wound drainage, Dr. Fleshman recommended wound exploration and placement of a wound VAC. The employee was admitted to the hospital on July 20 for severe diaiThea, presumed to be C-diff colitis. She was started on Flagyl and the severe dian-hea immediately resolved. On July 23 Dr. Fleshman performed an exploration of the abdominal wound and placement of a wound V AC due to a deep incisional wound infection. The employee was released from the hospital on July 26.

On August 9, 2004, the employee was doing well with the wound V AC, but was having burning and pain into the left thigh from the genitofemoral or iliofemoral nerve. With regard to the Stage II colon cancer, Dr. Fleshman scheduled a return appointment to obtain a baseline CEA level. On August 30 the wound VAC had been removed. A CEA level was obtained. The employee returned to Dr. Fleslunan on December 6, 2004. Her wound had finally healed, but she was having 5-6 bowel movements per day.

The employee testified that she was off work for her cancer treatment about 16 weeks. She has been cancer free and undergoes regular screenings. She went back to work as a PBX operator. After the 2004 colon cancer surgery, she de,·eloped chronic diarrhea which affected her job. Due to the urgent diarrhea which hits suddenly, she had to leave her desk to go to the bathroom. Her job accommodated her. If she had to leave her position other co-workers helped.

Page 8


She continues to have the urgent diarrhea. Away from work, she has to take frequent stops when traveling. She is constantly worrying and she has to scope out where bathrooms are located. It has affected everything in her life including traveling.

Mr. Coffer testified that after the colon cancer diagnosis, the employee cried a lot and became anxious. After the surgery, she could not eat a lot and had to be close to restrooms due to diarrhea issues. They did not take as many trips and if they did, they had to plan on where they ate and to be close to bathrooms. She did not like to go to crowded places, had to sit away from people and be close to restrooms.

The employee testified that during her cancer treatment she developed anxiety. She was worried about her cancer and scared of crowds. She had trouble with anxiety and problems in public places. She will not go into Walmart alone. She goes to small stores if she has to, but otherwise has to have someone with her. She has continued to have problems with anxiety. The employee requested a break during the hearing when discussing her anxiety issues.

In March of 2005, the employee had a CT scan of the pelvis and abdomen due to abdominal pain and history of colon cancer. The test was negative. A colonoscopy in April of 2005 was negative. An abdominal CT scan performed in June of 2005 showed status post cholecystectomy but otherwise grossly within normal limits. In August of 2005, due to back and left shoulder pain, the employee had x-rays which showed mild degenerative changes of the 15-Sl disc with mild osteoarthritic changes and mild Grade II impingement of the shoulder.

In November of2005 the employee had a CT of the abdomen and pelvis due to abdominal pain and a histo1y of cholecystectomy. There was nonspecific findings of minimal wall thickening of the proximal sigmoid colon which could represent a possible inflammat01y or infectious etiology; and status post cholecystectomy. In mid-December of 2005, the employee had abdominal pain and diarrhea. Dr. Sparkman prescribed medication and ran tests.

In May of 2006, Dr. Sparkman saw the employee for diaIThea and abdominal pain. Blood tests were run. In October of 2006, the employee had abdominal pain. An upper GI small bowel follow through showed persistent narrowing at the ileocolic anastomosis. Colonoscopies in May of2005 and May of2006 were normal. Dr. Fleshman ordered a CT scan and barium enema which were normal. The employee was refe1Ted to a gastroenterologist. On October 13, 2006, due to ongoing nausea and abdominal pain, the employee underwent a series ofx-rays of her small bowels after Barium was administered. The testing showed a suspicious small segment of either te1minal small bowel or possible anastomosis which demonstrated persistent defon11ity and apparent thinning of the lumen.

The employee testified that she had developed low back pain in 2006 which affected her work. She had trouble sitting for long periods of time and had bad lower back pain that radiated down her lower left leg to her foot.

On January 8. 2007. the employee went to the Kennett Clinic for back and left leg pain. /\ January 15 x-ray of the left tibia and fibula was negative for fractures and acute bony injuries.

Page 9

Employee: Lisa Coffer Injury No. I 3- I 04240

The January I 6 whole body bone imaging scan due to left leg pain was within nonnal limits with no compelling evidence of bony metaphyses. The Januaiy 30 venous Doppler scan of the left leg was negative for deep vein thrombosis. A lumbar MRJ perfonned on February 13, 2007 due to low back and left leg pain showed minimal bulging at Tl 2-LI, mild bulging at L5-S I and degenerative disc disease at L5-S 1. On April 23, the employee had a radiographically guided epidural injection at LS-SI. When the employee went to the Kennett Clinic on May I, 2007, the doctor noted that the employee had back and leg pain; and was unable to do PT, work and take care of children.

The employee saw Dr. Land1y on May 1 I, 2007 due to left lower extremity sciatica after being referred by Dr. Nashir. The employee had onset oflower back pain with rapid development of radiating pain down the left lower extremity with numbness. Dr. Landry stated the Februaiy 13, 2007 MRJ showed loss of signal intensity of the L5-S I disc with central annular bulging. He diagnosed lumbar degenerative disc disease with left lower extremity sciatica. The symptoms and straight leg raising findings were consistent with left-sided nerve root compression. Dr. Landry recommended left lower extremity EMO/nerve conduction studies.

The employee went to the Kennett Clinic on June 4, 2007 for low back and left leg pain. She was on Prednisone and Percocet. On June I I the Prednisone was not effective and she was having severe pain. Percocet was continued. The June I I lumbar MRI showed posterior bulging discs at TI2-LI and L5-Sl; degenerative disc disease at L5-Sl and early degenerative arthritis.

On July 10, 2007 a venous Doppler scan was performed on the left leg due to pain and a mass. The mass was dete1mined to be fatty tissue with no evidence of deep vein thrombosis. The left thigh MRI performed on July I I due to left thigh mass and left leg pain showed no definite well-defined mass and a large amount of subcutaneous adipose tissue present.

In August of 2007 the employee had a CT of the pelvis due to left lower quadrant abdominal pain. It showed no acute process; and some mild degenerative changes in the lower lumbar spine and pelvis. The employee had a colonoscopy in September due to ongoing abdominal pain and diarrhea; and biopsies were taken. The onset of dian-hea had uncertain significance and there was no areas suspicious for recunence of colon cancer.

In Januaiy of 2008, the employee went to the Kennett Clinic with left shoulder and left neck pain from carrying groceries. The history of the CS-6 neck fusion was noted.

In Februmy 20 of 2008, the employee saw Dr. Park due to back and left leg pain. Dr. Park reviewed the prior MRJ. On exam, there was wealmess of the left biceps and triceps. A myelogram and discogram showed a left-sided L4-5 herniation and concordant pain and extravasation at L4-5 and L5-S I. Due to left lower extremity edema and pain, the employee had a venous Doppler in February which was negative for deep venous tlu·ornbosis.

On March 7. 2008. Dr. Park performed an L4-5 and L5-S I plasma disc decompression with fluoroscopy. The pre and postoperative diagnoses were L4-5 and L5-S 1 disco genie pain.

Page 10

Employee: Lisa Coffer Injmy No. 13-104240

On May 8, 2008 the employee went to Kennett Clinic due to leg cramps. On May 29, the employee had leg and foot swelling; and was on Percocet, Xanax, and Imodium.

The employee testified that the low back surgery helped with pain but she continued to have back and left-sided leg pain when sitting or standing for long periods of time. After the surgery she was off work for 4 weeks and when she returned, she changed how she did her job. Due to the back and left leg symptoms, she had to alternate standing and sitting. She could not walk as far or stand or sit for long periods without pain. She could not lift as much, and her husband had to do most of the grocery shopping. She had trouble with bending and stooping; and could not vacuum or sweep. She was able to do the small stuff and her husband did the rest. Mr. Coffer testified that the employee developed low back problems and had trouble sitting and standing which still continued after the low back surgery.

On June 9, 2008, the employee had a CT scan of her abdomen and pelvis due to abdominal pain. The scan showed diverticulosis of the sigmoid colon. On June 24, the employee had pain in her hips. On August 22, the employee had back pain and was diagnosed with low back strain and sciatica. Flexeril and Percocet were prescribed. On August 28, the employee had an x-ray of the sacrum/coccyx due to coccygeal pain which showed no acute fractures or acute bony injuries and modest degenerative changes in the lower lumbosacral spine. X-rays of the lumbar spine due to low back pain showed no acute injuries but widespread changes of degenerative disc disease especially in the lower lumbosacral spine.

At the end of October of2008 the employee had a headache for three weeks with pain on the right side of the neck. In November of 2008, a CT of the brain was ordered due to headaches. The brain CT performed in March of2009 showed no acute intracranial abnonnality. In April, the employee reported continued back and abdominal pain. A thoracic MRI was ordered and pain management was recommended. In May of2009 a CT of the abdomen and pelvis due to abdominal pain was within normal limits. In December of 2009, the employee had right upper quadrant pain. It was noted that her gallbladder had been removed.

In January of 2010, the employee had ongoing abdominal and rib pain. CT scans of the abdomen and chest were ordered due to abdominal and chest pain and were within normal limits. On February 2, the employee had continued abdominal pain and was prescribed Vicodin. The employee had a stomach biopsy due to epigastric pain. Diagnosed was gastritis. In April of 20 I 0, the employee had an acute abdominal series due to abdominal pain and the results were non localizing acute abdominal series. The employee had a thoracic MRI due to mid-back pain, history of colon cancer, and bilateral upper extremity numbness. The impression was bulging discs at Tl 2-LI and Ll-2; degenerative disc disease at T6-7, T7-8 and T8-9; and degenerative ai1hritis. In September of 2010, the employee had a CT of the abdomen due to right upper quadrant pain which was negative.

The employee testified that in late 2010, her job duties changed. Along ,vith her usual duties. she was given additional duties of checking in emergency room patients. Her work station changed as she was given an additional computer and additional keyboard in a different position which made her job more difficult. She used both computers and keyboards which

Page 11


increased the amount of keyboarding. She was constantly keyboarding the whole time and had to switch back and fo1th between her jobs. She had to quickly type and keyboard, and used a mouse at each computer. After her job duties changed, she started noticing pain, tingling, numbness, and cramping in her hands.

A cervical CT scan was performed in March of 2011 due to neck pain. It showed the prior anterior cervical discectomy and fusion at CS-6.

The employee testified that in 2011, she injured her right elbow. When she reached into a kitchen cabinet for an item it fe]I and injured her right elbow. She was home alone at the time; had pain and swelling, and saw Dr. Landry.

In May of 2011, the employee saw Dr. Landry for right elbow pain after reaching for a casserole dish and yanking her arm. She had pain, numbness and tingling that radiated from the elbow to the dorsum of the hand. Dr. Landry diagnosed acute lateral epicondylitis, ordered therapy and prescribed Vicodin. Later in May, Dr. Landry noted the elbow was not improving. He injected the right elbow and continued therapy. The employee had physical therapy throughout May.

On July 11, 2011, the employee had x-rays of the right forearm and right humerns due to an injury from a fa]I, There was no evidence of fracture or dislocation. The employee told Dr. Landry on August 24, 2011 that her elbow symptoms resolved after the steroid injection in May but she recently reinjured her right elbow after a fall. X-rays of the elbow were negative. Dr. Landry diagnosed a hematoma in the right foreann extensor and recommended sling, icing and additional physical therapy. The employee had physical therapy for her right elbow at the end of August to mid-September. In mid-September, Dr. Landry reported no improvement in therapy; re-injected the right elbow; and diagnosed a muscle strain and recmTence of lateral epicondylitis.

On September 27, 2011, the employee had a brain CT due to a headaches which was negative. On October 7, the employee saw Dr. Land1y with 80% improvement after the elbow injection. A CT scan of the head in November of 20 I I due to headaches was unremarkable.

In January of2012 the employee reported an increase in right elbow pain after lifting a laundry basket. Dr. Landry diagnosed right lateral epicondylitis and recommended surgery. On February 6, 2012 Dr. Landry performed a right tennis elbow repair for right lateral epicondylitis.

On March 5,2012, Dr. Landry noted the employee had resolving neuritis, was unable to work and therapy was continued. The employee was released to return to work on April 3,2012. The employee had physical therapy for her right elbow and am1 from the end of February through April 12, and on that day the right wrist and hand pain. stiffness and weakness had greatly improved. The employee saw Dr. Landry on April 16. 2012 with improved symptoms in the right elbow and right hand. She had continued good and bad days with tightness and stiffness in the hand and diminished grip strength. Dr. Landry noted the median nerve symptoms had resolved and he expected a gradual return of right grip strength.

Page 12


The employee testified that the February of 2012 surgery by Dr. Landry helped with the pain but she still had swelling. She still had achy pain and had hoped it would be better. She was off work for 6 weeks. When she returned to work, she could not type as fast, had to reposition her arm due to the pain, had to take breaks, could not lift as much and relied on her left ann more. Mr. Coffer testified that the employee continued to have problems with her elbow.

In March of 2013, due to back pain, the employee had lumbar x-rays which showed mild straightening of the lumbar lordosis, multilevel degenerative disk disease with multilevel anterior osteophyte fonnation.

A lumbar CT scan in September of2013 showed a small osteophyte disc complex causing minimal narrowing of the L3-4 neural foramen. At L4-5 there were degenerative changes in the facet joints with a central and left paracentral disc bulge/protrusion, moderate narrowing of the left neural foramen, and minimal central spinal canal stenosis. There was degenerative changes in the facet joints and osteophyte formation at LS-SI with moderate narrowing of the left neural foramen.

The employee had a CT scan of her abdomen and pelvis in September of2013 due to ongoing abdominal pain. There were no acute findings but there were changes of previous cholecystectomy without bilia1y ductal dilation.

The employee testified that up to December of 2013, she continued to have neck pain and stiffness, occasional headaches in the back of her head and avoided overhead work. With regard to the colon cancer, she continued to have chronic diarrhea and cramping. It was her understanding that when they removed pait of her colon a valve was removed which caused the dimThea urgency. She continued to have trouble with anxiety including trouble working in public and in cramped places. It bothered her to be around people she did not know. She was taking medications for anxiety. She continued to have left back pain with pain down the leg and numbness down the side of her leg to the foot. She alternated standing and sitting due to low back and leg pain about twice an hour. She continued to have right elbow pain and swelling with use. After her neck and elbow surgery, she did not have any numbness or tingling in her extremities. She was taking over-the-counter extra strength Tylenol 3-4 times a day, mainly at work for her wrists, hands, elbow, neck, back and leg.

Mr. Coffer testified that leading up to December of2013 the employee was working full time and was a good worker. The employee's job duties changed prior to 2013 and she was constantly using two computers, two keyboards and a mouse for each computer. In 2013, and leading up to December of 2013, the employee complained of her hands aching. Her hands, neck and back conditions caused her problems around the house as it was harder for her to do the laundry especially wet items. vacuuming and picking up heavy pols.

The employee testified that prior to December of 2013 she was planning on working at Twin Rivers until retirement. She had a good job close to home with good benefits and good coworkers that she liked. She was working full time as a PBX operator leading up to her hand

Page 13


problems. After recovering from her neck, back and colon cancer, and elbow surgeries she did not miss work.

The employee testified at some point after her job duties changed in late 2010, she started having pain and cramping in her hands and wrists which went up to the elbows which got worse over time. She cam1ot remember the exact time she started having problems but started noticing numbness, tingling and stiffness in her wrists, hands and all of her fingers. The left hand seemed to be worse at first and now her hands are about the same. In 2013 her hands became bad and by the fall of 2013, her hands were waking her up at night. In December of 2013, she was on medications for blood pressure which controlled that condition, and on medication for anxiety and acid reflux. To her knowledge, she has never been diagnosed with diabetes or fibromyalgia.

On December 7, 2013, Dr. Spanos saw the employee due to numbness and pain affecting the left ann, face and left leg. The prior neck fusion and lumbar CT scan were noted. Dr. Spanos' impression was limb pain, paresthesia, neck pain and low back pain. He recommended a cervical CT scan and EMG/NCS of the left upper and left lower extremities; and to obtain the prior lumbar imaging. The EMG/NCV performed that day showed severe left carpal tum1el syndrome, entrapment of the left ulnar nerve across the elbow, denervation potentials of the left tibial anterior muscle due to left LS-SJ radiculopathy and axonal abnom1ality of the left sciatic nerve due to peripheral nerve entrapment, and absent sural and superficial peroneal sensory nerve responses bilaterally due to a sensory polyneuropathy.

The employee testified that her hands got so bad that she went to her family doctor in tears on December 13, 2013. Her doctor took her off work due to the pain in her hands, wrists and elbows. She did not know at that time what was wrong with her upper extremities. The last day that she worked was December 13, 2013.

The December 18 cervical CT due to a clinical history of numbness showed the prior CS-6 fusion but no significant spinal stenosis or foraminal compromise at any level. There was mild ventral spondylosis resulting in mild central canal narrowing with no foraminal nairnwing.

On January 22, 2014, Dr. Spanos stated that the cervical spine testing did not show any new herniated discs or nerve impingement. He believed that the left upper extremity symptoms were related to severe carpal tunnel syndrome and entrapment of the ulnar nerve across the elbow. She had recently developed pain and swelling of the right upper extremity as well. The nerve studies of the left lower extremity showed evidence of L5-S 1 radiculopathy. He recommended refetTal to a neurosurgeon for both conditions.

The employee testified that after the testing, Dr. Spanos diagnosed bilateral severe carpal tunnel syndrome and nerve entrapment in the elbows. After she got the results of the tests, she talked to her supervisor Christy Blurton and informed her what Dr. Spanos said. Human Resources Department called her at home and suggested she resign. She was still employed, was on FMLA and did not resign. She signed up for sh011 term disability and then saw Dr. Campbell.

Page 14


On February 7, 2014, the employee saw Dr. Campbell, a neurosurgeon, due to numbness and tingling in her left hand extending into her shoulder with pain and ann discomfort. Dr. Campbell reviewed the testing and diagnosed severe left carpal tunnel syndrome and some left ulnar nerve entrapment. Dr. Campbell recommended surgery for the left wrist and elbow, but thought the most pressing concern was the left LS-S 1 radiculopathy and ordered a lumbar MRI.

The February 17, 2014 lumbar MRI due to left-sided low back pain radiating into the left leg with numbness in the left leg and left foot showed a moderate central disc extrusion at T12-L I, a possible small disc protrusion at L4-5 with endplate osteophytes, a moderate central disc protrusion at LS-SJ, and lumbar facet aiihropathy. A February 17 EMG/NCS of the right upper extremity showed entrapment of the right ulnar nerve across the elbow and mild to moderate right carpal tunnel syndrome.

Dr. Campbell saw the employee on March 19, and stated that the February 17 lumbar MRl was of poor quality due to motion artifact. A repeat lumbar MRI performed on March 19 showed a small midline disc protrusion that slightly effaced the thecal sac and no severe nerve root compression at L4-5; and a small midline disc protrusion barely contacting the thecal sac and nerve roots at LS-SI. The radiologist's impression was small central disc protrusions at L4-5 and LS-S 1 with no severe nerve root compression or stenosis; and mild facet disease at multiple levels. Dr. Campbell reviewed that MRl and stated that it showed minimal disc bulging at LS-S 1 but nothing that should be causing any type of left-sided lumbar radiculopathy. He diagnosed left leg pain of unclear etiology, severe left carpal tunnel, mild to moderate right carpal tunnel syndrome and bilateral ulnar nerve entrapment at the elbows. Nothing in the lumbar spine required surgical intervention and referred the employee back to Dr. Spanos. Dr. Campbell stated she might benefit from carpal tunnel release and ulnar nerve decompression.

The employee saw Dr. Spanos on April 17, 2014 with severe left leg pain worsened while driving. She had not been able to tolerate Neurontin or Lyrica due to suicidal ideation. The impression was left lower extremity nerve pain and carpal tunnel syndrome. He noted that Dr. Campbell did not recommend intervention at the lumbar spine but recommended a carpal tunnel release. Dr. Spanos recommended Nortriptyline and Lorcet; and pain management.

The employee filed her Claim for Compensation with the Division of Workers' Compensation on November 24, 2014. The date of the occupational disease listed was December 13, 2013.

The employee testified that Dr. Campbell recommended but did not perform surgery on her low back, elbows or hands. The low back symptoms were the same as she had before and there was no new injury. Dr. Campbell thought there was little chance of the surgeries helping her hands. She did not have any additional treatment by Dr. Campbell.

The employee testified that she never returned to work because the doctors would not release her to return. Her employment with Twin Rivers ended when she received a certified letter that stated that if the doctors did not release her in l O days she would be terminated due to her HALA running out. She could not return to work. After being terminated she did not have

Page 15


any income and did not file for unemployment. She was unable to work due to all of her problems and not just her hands. She applied for and got approved for Social Security disability without hiring an attorney or having a hearing. Her social security disability is her only source of income which is less than half when she worked at Twin Rivers. She has not attempted to return to work, has not applied for any positions, and has not done any volunteer work because she does not know of anything she could do. She was aware of any jobs she could perform due to her conditions and disabilities.

On March 1, 2016, the employee settled her Claim for Compensation against the employer-insurer for an approximate disability of I 8.75% of the body as a whole referable to carpal tunnel syndrome in both wrists. The Settlement provided that $2,868.72 in funds were to be paid for a self-directed Medicare Set Aside account for future medical treatment.

Dr. Paetz examined the employee on September 2, 2016. His report was dated January 18, 20 I 7. The chief complaint from her injuries leading up to December 13, 2013 was loss of strength in her hands; difficulty carrying and dropping things frequently; and numbness, tingling and pain in her hands. The symptoms have not been as bad since she stopped working. She was employed for 23 years performing telephone and keyboarding duties and gradually developed numbness, tingling and pain in her hands by mid-2013 after the addition of a second keyboard and desk. The employee was no longer working and had been receiving Social Security disability since 2014.

Dr. Paetz reviewed the medical treatment records from Dr. Spanos and Dr. Campbell along with the past treatment for hypertension, anxiety, cervical disc surgery, colon cancer, low back surgery and right tennis elbow repair. On physical examination, the employee had decreased range of motion in the right elbow and cervical spine. The Phalen's and Tinel's signs were positive bilaterally and grip strength was diminished on the right.

Dr. Paetz diagnosed bilateral carpal tunnel syndrome resultant from the occupational disease. It was Dr. Poetz's opinion that the occupational disease that occurred on or about December 13, 2013 was the substantial or prevailing factor in directly causing a 30% pennanent paiiial disability of the right upper extremity measured at the right hand and wrist and a 25% permanent partial disability of the left upper extremity measured at the left hand and wrist.

With regard to pre-existing injuries and conditions, Dr. Paetz diagnosed the employee with generalized anxiety disorder; C5-6 herniated nucleus pulposus status post C5-6 anterior cervical microdiscectomy and interbody fusion; right colon cancer status post laparoscopy with conversion to open with subsequent right colectomy of left oophorectomy: L4-5 disc herniation status post L4-5 and LS-SJ plasma disk decompression: and right lateral epicondylitis status post tennis elbow repair. It was Dr. Paetz' s opinion that the employee had sustained the following pre-existing disabilities that impacted her ability to work: 15% permanent partial disability of the body as a whole due to anxiety; 35% permanent partial disability of the body as a whole at the cervical spine: 25% permanent partial disability of the body as a whole at the colon: 25% permanent partial disability of the body as a whole at the lumbar spine: and 25% permanent partial disability of the right upper extremity at the elbow.

Page 16


Dr. Paetz recommended that the employee take Lasix for edema; should discontinue Ibuprofen and Meloxicam due to fluid retention; and recommended Voltaren gel or Flector Patch for pain. It was his opinion that the employee should avoid pushing and pulling; heavy lifting and strenuous activity; prolonged sitting, standing, walking and bending; overhead use of upper extremities, and excessive and repetitive use of the upper extremities; and stressful situations. It was Dr. Poetz's opinion that the employee was at maximum medical improvement from the occupational disease on or about December 13, 2013, but could get benefit from additional medical treatment.

It was Dr. Poetz's opinion that the combination of the present and prior disabilities resulted in a total which exceeds the simple sum by 20%. It was his opinion that the employee was pe1manently and totally disabled due to the combination of her December 13, 2013 occupational injury and her pre-existing conditions. It was his opinion that the employee is and will be pennanently and totally unemployable in the open labor market.

The employee saw Ms. Shea on March 21, 2017 for an evaluation of her ability to work in the open labor market. She issued a report and her deposition was taken on November 17, 2017. Ms. Shea noted that the employee had worked as a PBX Operator for 23 years and developed pain and numbness in her hands and elbows in mid-2013. She continued to work but the symptoms increased and she started having pain at night. The employee told her that although Dr. Campbell recommended carpal tunnel surgery she declined since there was no promise that surge1y would improve her symptoms.

Ms. Shea noted the employee's extensive pre-existing injuries and conditions with limitations including anxiety, neck, low and mid back, right elbow, and colon cancer. Ms. Shea noted that Dr. Paetz was the only physician to give absolute restrictions due to both the work related and pre-existing injuries. Ms. Shea noted that the employee had a 10th grade education, did not get a GED and had worked for a single employer for 24 years. The employee's functional capacity must allow her to sit and stand at will, and she is limited in her ability to use her upper extremities. It was Ms. Shea's opinion that with these limitations the employee had no transferable skills to other work nor are there any unskilled sedentmy jobs which she could perform.

It was Ms. Shea's opinion that the employee is not employable in any work typically performed in the open labor market and that no employer would hire the employee in her present condition reasonably expecting her to perfom1 the work for which she is hired. The factors that she based her opinion on include Dr. Poetz's limitations which include no prolonged standing or sitting, and no repetitive use of her upper extremities and those restrictions would prevent all work for which the employee is qualified; she did not complete high school and does not have a GED: she has pain throughout her body: has undergone numerous surgeries: was diagnosed as morbidly obese: suffers from anxiety·: and is considered vocationally to be an older adult. The employee is 53 years old and has worked one job during her vocational career; and she can no longer perform that work. She has had numerous medical issues o\'er the years which has affected her ability to do her job: and she can no longer perfonn the phYSical demands of that job or any other job as typically performed in the open labor market and is no longer employable in

Page 17


the open labor market due to the combination oftbe primary work-related injury of December 13, 2013 and the numerous pre-existing conditions. It was her opinion that the employee would remain unemployable for the foreseeable future.

The employee was evaluated by Dr. Hinton on April 25,2018. His deposition was taken on September 5,2018. He reviewed the medical treatment records. The last record regarding the primary injury was Dr. Campbell's March 19, 2014 entry where he recommended a carpal tunnel release and ulnar nerve decompression. It was Dr. Hinton's understanding that the employee did not have the recommended surgeries because of the bad result from her prior right epicondylitis surgery. The employee was fearful of getting the same results from the carpal tunnel surgery. On physical examination, the employee had diminished strength in her left upper extremity, and positive bilateral Phalen's and Tinel's signs consistent with carpal tunnel syndrome. There was limited range of motion in the right elbow due to the epicondylitis and surgical repair, limited range of motion in the cervical and lumbar spine with a negative straight leg test.

Dr. Hinton diagnosed the employee with bilateral carpal tunnel syndrome. It was Dr. Hinton's opinion that the prevailing factor in causing the carpal tunnel syndrome was chronic multiple years of repetitive use of her upper extremities. It was his opinion that the employee developed carpal tunnel syndrome as a result of repetitively using her hands working at Twin Rivers Regional Medical Center for 23 years. It was his opinion that the bilateral carpal tunnel resulted from an occupational injury on or about December 13, 2013; and the occupational injury was the substantial and prevailing factor to 18.75% pennanent pariial disability of each upper extremity at the ,wist which was directly resultant from the work-related bilateral carpal tunnel syndrome. Dr. Hinton agreed with the primary settlement.

Dr. Hinton stated that that the employee had multiple pre-existing injuries and conditions including a cervical fusion, multiple surgeries for colon cancer which left her with subsequent loose stools, lumbar disc decompression, right elbow epicondylitis and anxiety. Dr. Hinton diagnosed the employee with pre-existing generalized anxiety disorder; C5-6 herniated nucleus pulposus status post C5-6 anterior cervical microdiscectomy and interbody fusion; right colon cancer status post laparoscopy with conversion to open with subseqnent right colectomy of left oophorectomy; L4-S disc herniation with degenerative disc disease with residual lumbar stenosis and LS-SJ disc protrusion, status post L4-5 and LS-SI plasma disc decompression; and right lateral epicondylitis status post tennis elbow repair. It was Dr. Hinton's opinion that the employee had pre-existing pem1anent partial disabilities that impacted her ability to work. It was his opinion that the employee had pre-existing permanent partial disabilities of 15% of the body as a whole due to her anxiety; 35% of the body as a whole due to the cervical spine; 2S% of the body as a whole due to the colon cancer and subsequent conditions; 30% of the body as a whole for the chronic low back pain: and 2S% of the right upper extremity due to the epicondylitis.

Dr. Hinton stated that the employee's anxiety was better since she was not working but still has some depression or anxiety which is present to some degree throughout most of the day and can be worsened by ceriain situations. Dr. Hinton noted the employee was morbidly obese which would also limit her ability to work.

Page 18


Dr. Hinton prescribed a number of limitations due to all of her conditions and not just from the bilateral carpal tunnel syndrome. The limitations were to avoid pushing and pulling; avoid heavy lifting and strenuous activity; avoid prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing; avoid overhead use of the upper extremities; avoid excessive and repetitive use of the upper extremities; and avoid use of equipment that creates torque, vibration, or impact to the upper extremities. She should avoid any activity that exacerbates symptoms or cause progression of the disease process which would include taking rest when needed but he did not give a specific restriction of taking frequent breaks or rest.

It was his opinion that the pre-existing conditions combined with the primary workrelated injury to the hands to create an overall disability because the conditions affected multiple body parts that are being used through a nonnal work day which makes it hard to perfonn the job duties. It was Dr. Hinton's opinion that the employee was permanently and totally disabled due to a combination of the work-related injuries and pre-existing conditions and disabilities.

Ms. Shea issued an addendum report after reviewing the report of Dr. Hinton. Her second deposition was taken on September 25, 2018. After reviewing Dr. Hinton's report, Ms. Shea's opinion on the employee's employability in the open labor market did not change. It was her opinion that the employee is not employable as per any work as typically performed in the open labor market; and that no employer would hire the employee reasonably expecting her to perform the job for which she is hired. It continued to be Ms. Shea's opinion that the employee's unemployability in the open labor market was due to a combination of the December 13, 2013 injury and her pre-existing conditions.

The employee testified regarding her crnTent symptoms. She has neck pain and stiffness, and at times has sharp pain when she moves her neck a lot, loss of full range of motion, and headaches in the back of her head. She still has headaches sometimes every day or twice a day. To decrease her neck and head pain she applies a heating pad, Aspercreme, Icy Hot and Biofreeze; and takes Tylenol. With regard to her colon cancer, she still has urgent dianhea and cramping. Driving to the hearing she had to stop twice to use the batln·oom and as soon as she got to the hearing, she had lo use the batlu-00111. There is nothing she can do for those symptoms and has to live with it. With regard to the anxiety, she is afraid of crowds and is still taking the anxiety medication ofXanax which is being prescribed by Dr. Watson, her family doctor. She tries to be stress free as possible. She has never treated with a psychologist or psychiatrist. With regard to her low back, she has low back pain and pain going down the outside of her left leg. She has a sharp pain in her low back when standing and sitting. She has leg symptoms if she stands or sits too long including numbness and tingling. The pain and numbness comes and goes. She is taking Tylenol to decrease her low back pain as well as the same creams and heating pad she uses for her neck. She has pain in her right elbow especially when using it a lot. She uses the creams for her elbow and elevates her elbow on a pillow at home.

The employee testified that regarding her hands. she has pain, numbness and tingling. It is better since she quit working as a PBX operator. When using her hands .. she has cramping. She has problems holding onto things and cannot hold near as much. To help her symptoms. she tries not to use them. uses creams and takes pain medication. She rubs and massages her hands

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which helps with the numbness and tingling. She has stopped doing word search word puzzles; and does less crossword puzzles and reading due to cramping. She does not do games on the computer and does not work on keyboards. She does not talk on the phone as much due to problems with hands. She puts the phone on speaker because of additional pain to her hands if she uses them to keep the phone to her ear.

The employee testified that she is on medications for high blood pressure, anxiety, acid reflux, and over-the-counter pain medications. She has taken heavier pain medications in past but tries to avoid them. They do not take as many trips due to the bathroom issues with her colon. It is harder taking trips due to having to stop so much due to diarrhea, and also to stop to stretch her neck and low back. She does go to crowded places as long as someone is with her.

The employee testified that all of the injuries have affected the chores around house. Her husband does 90% of the housework. He does the vacuuming, sweeping, laundry, dishes and cooking. She can do light things such as dusting, making up the beds, picking up items and wiping tables. She cannot lift heavy dishes. Her husband mainly does the shopping. She does some and their daughter helps. She only goes to small stores and uses a cmi to lean on. She does not drive for long periods of time due to the problems holding onto the wheel due to her arms, elbows and hands.

Mr. Coffer testified that presently he does the chores around the house. He does the laundry and cooking because it is hard for her to do it. He does the cleaning including vacuuming. He does the household shopping because she cannot stay in a store for very long. They don't go on long distance driving trips, and normally their limit is 50-60 miles because it is hard for her to ride in a vehicle any longer, and she has to stop to stretch and use the restroom. She has not worked since December of 2013. They were depending on her income, benefits, and retirement. Her loss of income affected their family and she makes less money and has no retirement. They have had to cut back on a lot of things. Since December of 2013, when the employee last worked she has had a change in her mood. If she could go to work she would. She loved to work and wishes she could work. Now she sits at home and that affects her mood. Since 2013 he applies Aspercreme, heat and ice to her neck, low back, an11S and hands.

The employee testified that with regard to a typical day, she has trouble resting and sleeping the night before. Due to the pain she will not immediately fall asleep at night and gets 5-6 hours of restful sleep. She wakes up at night with pain mainly in her back, wrists and hands. When she wakes up at night she will go to the recliner. When she gets up in morning she is sleepy and it takes a while to get dressed. She leans on the sink or dresser due to left leg pain and problems putting on her pants, socks and shoes. She avoids wearing socks as much as possible. and slips on her shoes. She avoids clothing with buttons due to problems buttoning them due to her hands. She stopped taking baths and uses a shower instead. Her husband put a safety bar in the shower. Most of the day she rests in the living room in the recliner. She does a little bit of light chores around the house. She is emotionally frustrated due to her problems and staying at home. Since her husband works full time and their children are out of house, it is frustrating to be at home. She takes naps during day due to being sleepy due to problems with sleeping.

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Employee: Lisa Coffer InjuryNo. 13-104240

Issue 1. Occupational Disease; and Issue 2. Medical Causation:

It is disputed that on or about December 13, 2013, the employee sustained an occupational disease arising out of and in the course of her employment and that the employee's injuries were medically causally related to the alleged occupational disease.

Under Section 287.020.3 (I) RSMo, "injury" is defined to be an injury which has arisen out of and in the course of employment. Under Section 287.067.2 and 287.067.3 RSMo, an injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. An injury due to repetitive motion is recognized as an occupational disease. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. In order to be a compensable injury under a repetitive motion occupational disease, the employee has the burden to prove that the occupational exposure was the prevailing factor in causing the resulting medical condition and disability.

The employee's testimony regarding her repetitive work activities and job duties as a PBX operator was very credible and persuasive. Her last day of employment at Twin Rivers was on December 13, 2013 when she was taken off work due to the pain in her hands, wrists and elbows.

Dr. Paetz diagnosed the employee with bilateral carpal tunnel syndrome resultant from the occupational disease. It was Dr. Poetz's opinion that the occupational disease that occurred on or about December 13, 2013 was the substantial or prevailing factor in directly causing pem1anent patiial disability of the right hand and wrist and left hand and wrist.

Dr. Hinton diagnosed the employee with bilateral carpal tunnel syndrome. It was Dr. Hinton's opinion that the prevailing factor in causing the carpal tunnel syndrome was chronic multiple years of repetitive use of her upper extremities. It was his opinion that the employee developed carpal tunnel syndrome as a result of repetitively using her hands working at Twin Rivers Regional Medical Center for 23 years. It was his opinion that the bilateral carpal tunnel resulted from an occupational injury on or about December 13, 2013; and the occupational injury was the substantial and prevailing factor to permanent pmiial disability of each \\~·ist due to the work-related bilateral carpal tunnel syndrome.

1 find that the opinions of Dr. Paetz and Dr. Hinton are very persuasive.

Based on a thorough review of all of the evidence 1 find that the employee's repetitive work activities. job duties, and occupational exposure al the employer were the prevailing factor in causing the resulting medical condition and disability of bilateral carpal tunnel syndrome. 1 find that on December 13. 2013. the employee sustained a compensable work-related

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occupational disease and injury that arose out of and in the course of her employment. I find that the employee's bilateral carpal tunnel syndrome and the need for medical treatment are medically causally related to the employee's December 13, 2013 occupational disease.

Issue 3. Liability of the Second Inju,J' Fund for either permanent total disability or permanent partial disability.

Applicable Statute:

In 2013, Section 287 .220, RSMo which governs Second Injury Fund liability was amended with changes effective January 1, 2014. The Second Injury Fund in its proposed Award argued that amended Section 287.220.3 RSMo applies in this case; and based on the amended law the employee failed to meet her burden of proof for her claim against the Second Injury Fund.

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

The employee filed her Claim for Compensation with the Division of Workers' Compensation on November 24, 2014. The date of the occupational disease listed was December 13, 2013.

The Second Injury Fund argued that in occupational disease cases, it did not matter when the pre-existing injuries occurred as the statute clearly distinguishes injuries from occupational disease claims after January 1, 2014. The Second Injury Fund cited Gattenby v. Treasurer of the Stale of Missouri as Custodian of the Second Injury Fund, 516 S.W.3d 859,862 (Mo. App. W.D. 2017) and a recent Labor and Industrial Relations Commission opinion in Bruce Krysl v. Treasurer, Injury No. 13-104992 (Mo. LIRC dee. January 17, 2019) for the proposition that occupational disease claims filed after January 1, 2014, were subject to the new provisions of Section 287.220.3 RSMo. The Second Injury Fund argued that the date the Claim was filed controlled and not the date of the primary occupational injury.

The Second Injury Fund argued that since Ms. Coffer filed her Claim for Occupational Disease after January 1, 2014, the case falls under the "new law" and therefore her pre-existing disabilities would have to fit into one of the new categories of pre-existing disability for the alleged permanent total disability against the Second Injury Fund.

ln Gmtenby. the employee injured his right knee in a March of2014 accident. All of the employee's pre-existing injuries and conditions were prior to January l, 2014. The Second Injury Fund appealed the case after the employee was found to be permanently and totally disabled. The Court of Appeals addressed whether subsection 287.120.3 or subsection 287.120.2 was the applicable Second Injury Fund liability statute.

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The Comi in Gattenby stated that:

"At issue is the meaning of the 2013 legislative changes to section 287.220, Subsection 287.220.2 and 287.220.3, respectively, state in pertinent part as follows:

All cases of pennanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. § 287.220.2.

All claims against the second injury fund for injuries occurring after January 1, 2014, ... shall be compensated as provided in this subsection. § 287.220.3.

All claims against SIF require two distinct classes or categories of'injuries': (]) at least one preexisting injury; and, (2) a subsequent compensable inju1y ( often referred to as the 'primary' injury) ... Notably, with respect to claims involving occupational diseases, the legislature specifically used the plu·ase 'subsequent compensable injury' to describe when the 2013 modification to the law applies to the employee's claim. 3"

In its footnote the Court stated" 3 Specifically the legislature dictated that the 2013 requirements for SIF liability under subsection 287.220,3, In the first portion of subsection 238.220.3(1) the legislature states '[a]ll claims against the second injury fund for injuries occmTing after January 1, 2014.' This language does not distinguish between injury types (i.e., preexisting or subsequent compensable) and instead applies to all injuries not classified as an occupational disease. Conversely, the second portion of subsection 287.220.3(1) states '[a]ll claims against the second injury fund involving a subsequent compensable injury which is an occupalional disease filed after January 1, 2014.' § 287.220.3(1) (emphasis added). Thus, for any 'primary' injury involving an occupational disease that occurs after January 1, 2014, it matters not when the 'preexisting' inju1y occmTed. The words are different. Thus, the meaning must necessarily be different."

The Comi of Appeals further stated, "But with respect to claims for all other injuries, the legislature did not distinguish between 'preexisting' and 'subsequent compensable injuries,' and instead simply restricted application of section 287.220.3 to 'all claims ... for injuries occuning after January l, 2014.' . . . The legislature's choice to expressly refer to the 'subsequent compensable injury' in the context of occupational disease claims, but to refrain from such limitation in the context of claims for all other injuries, must be presumed intentional, and we must give it effect. By the same token, in subsection 287.220.2, the legislature plainly refers to ·previous disability,· whereas subsection 287.220.3 does not. Our legislature clearly knew how to contrast ·previous disability' with that resulting from 'subsequent compensable injuries,· but it made no such distinction in subsection 287.220.3. This confirms that the 'injuries' to which the legislature refers in subsection 287.220.3 are all of the employee's for which 1he claim is made against the SIF, i.e .. the emplo,·ee's preexisting al1(/ primary injuries. Accordingly. subsection 287.220.3 applies only where both the preexisting and primary injuries occur after January 1.

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2014. Especially when read in conjunction with the plain language of subsection 287.220.2 with an eye toward harmonizing both provisions, this result gives meaningful effect to all of the language chosen by our legislature, and is consistent with the strict construction mandate. Here, then, because Mr. Gattenby's claim against SIF involves a preexisting injury or injuries that resulted in disability before January 1, 2014, subsection 287.220.2 is the controlling statute guiding SIF liability."

The Court of Appeals held that Section 287.220.2 applied in Mr. Gattenby's case because the primary accidental injury was in March of2014 and all of the pre-existing injuries and conditions were prior to January 1, 2014. If the primary accidental injury and all of the preexisting injuries and conditions were after January 1, 2014, Section 287.220.3 would apply. The Court stated "Thus, for any 'primaiy' injury involving an occupational disease that occurs after Januaiy 1, 2014, it matters not when the 'preexisting' injury occurred."

Based on a thorough review of the rulings in Gatten by, I find that for Claims against the Second Injury Fund where the primary occupational disease injury or injuries occur after Januaiy 1, 2014, Section 287.220.3 RSMo applies whether or not the pre-existing injuries and conditions were prior to or after January 1, 2014. I find that for primary occupational disease injuries that occur prior to January 1, 2014, Section 287.220.2 RSMo applies.

Based on my ruling that Ms. Coffer's primary occupational injury occurred on December 13, 2013 which was prior to January 1, 2014, I find that Section 287.220.2 RSMo applies to her Claim against the Second Injmy Fund.

Section 287.220.2 RSMo has the same requirements for Second Injury Fund liability that were in existence prior to the 2013 amendments. Section 287.220.3 RSMo clearly has more restrictive requirements for permanent total disability to be awarded against the Second Injmy Fund.

The Second Injury Fund's position is that Section 287.220.3 RSM0 applies since the employee's Claim for occupational disease was filed after .January 1, 2014. To apply that section of the statute that went into effect after Januaty 1, 2014 instead of the section in effect on December 13, 2013 when Ms. Coffer sustained a compensable injmy would be in direct contradiction to the ruling by the Missouri Supreme Court in Gervich v. Condaire, Inc., 370 S.W.3d 617, 622 (Mo. En bane, 2012). In that case, the Supreme Court held that the statutes in effect at the time of injury govern a worker's compensation claim. The right to compensation and the substantive law are governed by the statutes in effect at the time of the injury.

In Ms. Coffer's case, I find that the changes to the liability of the Second Injury Fund beginning after January 1, 2014 are substantive and cannot be applied retroactively to affect her benefits for the December 13 .. 2013 cause of action. I find that Section 287.220.2 RSMo applies in her Claim against the Second Injury Fund.

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Liability of the Second Injuu Fund Under Section 287.220.2 RSMo:

The employee is claiming that she is pe1manently and totally disabled, The first question that must be addressed is whether the employee is pem1anently and totally disabled.

I find that the employee was a very credible and persuasive witness on the issue of permanent total disability. The employee and the employee's husband offered detailed testimony concerning the impact her condition has had on her daily ability to function in the work place and at home. The testimony of the employee and her husband were important on the issue of pem1anent total disability.

There is both medical and vocational evidence that addresses whether the employee is permanently and totally disabled.

Dr. Poetz and Dr. Hinton gave restrictions for the employee to avoid pushing and pulling; heavy lifting and strenuous activity; prolonged sitting, standing, walking and bending; overhead use of upper extremities, and excessive and repetitive use of the upper extremities. Dr. Paetz gave an additional restriction to avoid stressful situations. Dr. Hinton gave additional restrictions to avoid prolonged stooping; squatting, twisting or climbing; avoid use of equipment that creates torque, vibration, or impact to the upper extremities; and to avoid any activity that exacerbates symptoms or cause progression of the disease process which would include taking rests when needed,

It was Dr. Poetz's opinion that the employee was permanently and totally disabled; and is unemployable in the open labor market. It was Dr. Hinton's opinion that the employee was permanently and totally disabled. It was Ms. Shea's opinion that the employee is not employable in any work as typically perfom1ed in the open labor market and that no employer would hire the employee in her present condition reasonably expecting her to perfom1 the work for which she is hired,

I find that the opinions of Dr. Paetz, Dr. Hinton and Ms. Shea are very persuasive, Based on the evidence, I find that no employer in the usual course of business would reasonably be expected to employ the employee and reasonably expect the employee to perform the work for which she would be hired. I find that the employee is unable to compete in the open labor market and is pennanently and totally disabled.

Given the finding that the employee is permanently and totally disabled, it must be determined whether the December 13, 2013 occupational disease and injury to the bilateral hands and wrists alone and of itself resulted in permanent total disability.

It was Dr. Poetz's opinion that as a direct result of the December 13, 2013 occupational disease the employee sustained a 30% permanent partial disability of the right hand and wrist and a 25% pernrnnent paiiial disability of the left hand and wrist. It was his opinion that the employee was permanently and totally disabled due to the combination of her December 13, 2013 occupational injury and her pre-existing conditions.

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It was Dr. Hinton's opinion that the as a result of the December 13, 2013 occupational injury the employee sustained a 18. 75% permanent partial disability of each wrist which was directly resultant from the work-related bilateral carpal tunnel syndrome; and agreed with the primary settlement. It was his opinion that the employee was permanently and totally disabled due to a combination of the work-related injuries and pre-existing conditions and disabilities.

It was Ms. Shea's opinion that the employee is no longer employable in the open labor market due to the combination of the primary work-related injmy of December 13, 2013 and her numerous pre-existing conditions.

The employee's Claim against the employer-insurer for the December 13, 2013 occupational disease was settled for 18.75% permanent partial disability of the body as a whole referable to carpal tunnel syndrome in both wrists.

I find that the opinions of Dr. Paetz, Dr. Hinton and Ms. Shea that the December 13, 2013 occupational disease alone did not cause the employee to be permanently and totally disabled are very persuasive.

There is no evidence that the employee is permanently and totally disabled as a result of the December 13, 2013 occupational disease and injury to the bilateral hands and wrists alone and of itself, I find that the employee's permanent and total disability was not the result of the last injury alone. I find that as a direct result of the December 13, 2013 occupational disease and injmy the employee sustained a 22. 75% permanent partial disability of the right wrist and 20% of the left wrist. I find that the December 13, 2013 injmy alone did not cause the employee to be pemmnently and totally disabled.

It must be determined whether the employee's pre-existing conditions were a hindrance or obstacle to her employment or re-employment.

The testimony of the employee and the testimony of Mr. Coffer regarding how her preexisting neck, low back, colon cancer, anxiety and right elbow conditions substantially affected her ability to perform her job duties were credible and persuasive.

It was Dr. Poetz's opinion that the employee had pre-existing injuries, conditions and disabilities of generalized anxiety disorder; CS-6 fusion; colon cancer with multiple surgeries; L4-5 and L5-S 1 disc decompression; and right lateral epicondylectomy. It was his opinion that the employee had pre-existing permanent pa11ial disability of 15% of the body as a whole due to anxiety; 35% of the body as a whole at the cervical spine; 25% of the body as a whole at the colon; 25% of the body as a whole at the lumbar spine; and 25% of the right elbow. It was his opinion that those pre-existing disabilities impacted her ability to work.

It was Dr. Hinton's opinion that the employee had multiple pre-existing injuries and conditions including a cervical fusion at CS-6: multiple surgeries for colon cancer which left her with subsequent diaiThea: L4-5 and L5-S I disc decompression: right elbow epicondylectomy: and generalized anxiety disorder. It was his opinion that the employee had pre-existing

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Employee: Lisa Coffer InjuryNo. 13-104240

permanent partial disabilities of 15% of the body as a whole due to her anxiety; 35% of the body as a whole due to the cervical spine; 25% of the body as a whole due to the colon cancer and subsequent conditions; 30% of the body as a whole for the chronic low back pain; and 25% of the right upper extremity due to the epicondylitis with surgery. It was Dr. Hinton's opinion that those pre-existing pennanent partial disabilities impacted her ability to work.

It was Ms. Shea's opinion that the employee's numerous medical conditions over the years had affected her ability to do her job at Twin Rivers Medical Center.

The evidence including the testimony of the employee and Mr. Coffer; and the opinions of Dr. Poetz, Dr. Hinton and Ms. Shea are very persuasive and support a finding that the employee's pre-existing anxiety, cervical, lumbar, right elbow, and colon cancer conditions were hindrances or obstacles to her employment or re-employment.

I find that the employee's pre-existing disabilities to her neck, low back, right elbow, colon, and due to anxiety constituted hindrances or obstacles to her employment or to obtaining re-employment.

The final question that must be addressed is whether the employee is permanently and totally disabled as a result of the primmy December 13, 2013 occupational disease in combination with the pre-existing conditions.

The employee testified that she has symptoms to her neck, head, GI system including urgent diaiThea and cramping, anxiety, low back, left leg, right elbow, and hands. It was her opinion that she is unable to work due to all of her problems. Due to all of her conditions and disabilities she is not aware of any jobs she could perform.

It was Dr. Poetz's opinion that the combination of the present and prior disabilities resulted in a total which exceeds the simple sum. It was his opinion that the employee was pemmnently and totally disabled and unemployable in the open labor market due to the combination of her December 13, 2013 occupational injury and her pre-existing conditions.

Dr. Hinton stated that the restrictions that he gave the employee were due to all of her conditions. It was his opinion that the pre-existing conditions combined with the primary workrelated injmy to the hands to create an overall disability because the conditions affected multiple body parts being used through a normal work day which makes it hard to perform the job duties. It was Dr. Hinton's opinion that the employee was pem1anently and totally disabled due to a combination of the work-related injuries and pre-existing conditions and disabilities.

Ms. Shea noted the employee's extensive pre-existing injuries and conditions with limitations including anxiety. neck, low and mid back, right elbow, and colon cancer. The restrictions of Dr. Poetz were due to a combination of both the work-related and pre-existing injuries. It was Ms. Shea's opinion that no employer would hire the employee in her present condition reasonably expecting her lo perform the work for which she is hired. The factors that her opinion is based on include the overall restrictions regarding her hands and other body parts.

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and the numerous medical issues over the years which has affected her ability to work. It was Ms. Shea's opinion that the employee's unemployability in the open labor market was due to a combination of the primary December 13, 2013 work-related injury and her numerous preexisting conditions.

I find that opinions of Dr. Poetz, Dr. Hinton and Ms. Shea on the cause of the employee's permanent total disability are very persuasive.

Based on a review of the evidence, I find that the employee's pre-existing neck, low back, anxiety, colon cancer, and right elbow conditions and disabilities combined synergistically with the December 13, 2013 occupational disease and injury to the bilateral hands to cause the employee's overall conditions and symptoms. I find that the employee is permanently and totally disabled and unable to compete in the open labor market as a result of the combination of her pre-existing neck, low back, anxiety, colon cancer, and right elbow conditions and disabilities and the bilateral hands and wrists condition and disability caused by the December 13, 2013 occupational disease and injury.

Based on the evidence, I find that the employee was in her healing period and had not reached the point where further progress was not expected on her primary work injury until March 19, 2014 when she last saw Dr. Campbell. I find that for the purpose of determining liability of the Second Injury Fund, the 22. 75% permanent partial disability of the right wrist and 20% permanent partial disability of the left wrist would have been payable in 75 weekly installments commencing on March 20, 2014, at the end of the healing period and continuing through August 26, 2015. Commencing on August 27, 2015, the Second Injury Fund is ordered to pay permanent total disability benefits to the employee at the rate of$333.33 per week.

These payments for permanent total disability shall continue for the remainder of the employee's lifetime or until suspended if the employee is restored to her regular work or its equivalent as provided in Section 287.200 RSMo. Section 287.200.3 RSMo mandates that the Division "shall keep the file open in the case during the lifetime of any injured employee who has received an award of permanent total disability." Based on this section, the Division and/or the Commission should maintain an open file for purposes of reviewing the status of the employee's permanent disability pursuant to Section 287.200 RSMo.

ATTORNEY'S FEE:

D. Matthew Edwards, attorney at law, is allowed a fee of25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

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INTEREST:

Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on 1-14-19 I delivered a copy of the foregoing award to the parlies lo !he case. A complete record _of !he method of delivery and date of service upon each party is retained with the executed award in the Division's case file,

Made by:

Lawrence C. Kasten Chief Administrative Law Judge

Division of Workers' Compensation

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Issued by THE LABOR AND INDUSTRIAL RELATIONS … · (1) All claims against the second injury fund...

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