FINAL AWARD DENYING COMPENSATION · 2020-02-21 · her ability to do her job. Employee saw Dr. Walz...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

with Supplemental Opinion)

Injury No.: 14-102494 Employee: Judith Gustin

Employer: Macy's Retail Holdings, Inc. (settled)

Insurer: Self-insured (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. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Discussion Employee alleges the administrative law judge erred in denying permanent total disability against the Second Injury Fund (SIF) by giving more weight to subjective medical opinions over objective medical evidence, in contravention of§ 287.190.6(2). This section states, in pertinent part, "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures."

In finding that the employee suffered no permanent disability related to her November 27, 2014, trip and fall at work, administrative law judge relied on the expert opinions of orthopedic physicians David C. Hicks and Brent Koprivica.

Dr. Hicks conducted an independent medical examination of employee and later personally reviewed employee's August 30, 2016, MRI. On August 4, 2016, after examining employee and reviewing her past radiographic history, Dr. Hicks concluded, "Based on the information that I have at this point I do not feel that her work related injury was the prevailing factor resulting in the arthritic changes she has throughout her midfoot and forefoot."1 On September 19, 2016, after reviewing the employee's August 30, 2016, MRI, Dr. Hicks concluded, "[T]he MRI shows chronic degenerative changes and no acute pathology as a result of the work related injury that Ms. Gustin sustained on November 27, 2014 [emphasis added]."2

1 Transcript, 4135. 2 /d., 4136.

Injury No.: 14-102494

Employee: Judith Gustin - 2 -

In his June 23, 2019, report Dr. Brent Koprivica opined, based on his independent medical evaluation of employee and her past treatment records:

In my opinion, Ms. Gustin's injury on November 27, 2014, is not felt to represent a condition that resulted in permanent disability.

I would characterize Ms. Gustin as having suffered a contusion to her dorsal left midfoot and anterior ankle based on the injury.

The nature of this type of injury from a structural standpoint is not one which produces new permanent structural injury, in my opinion ....

My opinion regarding the lack of disability would be consistent with the objective imaging on the MRI scan [emphasis added].3

We find that Ors. Hicks and Koprivica's opinions constituted objective medical evidence as defined by§ 287.190.6(2), in that both physicians based their conclusions regarding disability attributable to employee's primary injury based on a physical examination of the employee as well as review of the employee's August 30, 2016, MRI.

Case law construing § 287.190.6(2) suggests that the courts do not interpret § 287.190.6(2) as usurping the Commission's authority as fact finder. See Ballard v. Woods Supermarkets, 422 S.W.3d 473 (Mo. App. 2014); Johnson v. Ind. Western Express, Inc., 281 S.W.3d 885 (Mo. App. 2009); and Hall v. Mo. State Treasurer, 500 S.W.3d 282 (Mo. App. 2016). Based in the above analysis of evidence in the record we are not persuaded that§ 287.190.6(2) requires the Commission, as a matter of law, to reverse the administrative law judge's award in this case.

Employee alternatively argues that§ 287.220.3 does not require proof of any degree of permanent partial disability as result of a primary injury in order to establish permanent and total disability against the SIF, but rather only requires that an employee's preexisting disability "aggravate or accelerate the work related injury."4 This argument overlooks the definition of "injury" included in Section 287.020.3 of the act. This section states, in pertinent part, "An injury by accident is compensable only if the accident was the prevailing factor causing both the resulting medical condition and disability [emphasis added]."

Finally, we regard administrative law judge's findings regarding employee's lack of motivation to return to work extraneous to her denial of compensation based on employee's failure to meet her threshold burden of establishing any degree of permanent disability attributable to her November 27, 2014, primary injury.

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

3 /d., 4017-4018. 4 Application for Review, p. 3.


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

The award and decision of Administrative Law Judge Victorine R. Mahon, dated June 7, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this )\$J:, day of February 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

~7 7

f-- &c->c, ··· ~-?

Robert W. Cornejo, C

(R~ Reid K. Forrester, Member

DISSENTING OPINION FILED Shalonn K. Curls, Member

Attest:


DISSENTING OPINION

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has proven that injury sustained in her compensable work injury on November 27, 2014, and in combination with her prior disabilities caused permanent total disability.

Employee, a seasonal sales worker in the shoe department of employer's department store, sustained injury on November 27, 2014, when she stumbled over a shoebox. On January 30, 2017, employee settled her case with employer/insurer for $4,966.88, based on approximate permanent partial disability of 15% of the left foot. The administrative law judge heard employee's remaining claim against the Second Injury Fund (SIF) on April 2, 2019.

lniurv related to employee's primary iniurv The administrative law judge denied employee's SIF claim, based partly on her finding that employee suffered no permanent disability from her November 27, 2014, work injury. In so doing, the administrative law judge erred in prioritizing subjective medical opinions over objective medical findings of disability, in the form of well-documented visual swelling that started immediately after the injury, as reflected in all of employee's doctor visits over the following three years.

Section 287.190.6(2) provides, in pertinent part, "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures."

Physicians consistently observed objective swelling in sequential examinations of employee after her work injury. Dr. Walz found "some ecchymosis of the ankle and a little bit of swelling."1 Dr. Hicks noted "localized swelling" in employee's mid-foot.2

Finally, Dr. Koprivica reported, "Ms. Gustin does get swelling and tries to elevate [her] foot associated with the swelling."3

Employee's credibility is not in dispute. She reported, and the physicians observed, swelling in her left foot that began immediately after her work injury and was persistent and permanent. Employee testified that she has pain and discomfort that requires her to rest her leg and sometimes elevate it. Even Dr. Koprivica conceded that if swelling began immediately after employee's injury and persisted, there would be disability: "If truly there was the onset of the swelling follow[ing] a soft tissue injury and persisted from that date, from that point forward, then I think that is arguable that in fact it would

1 Transcript, 4128. 2 /d.4135. 3 Id. 4008.


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flow from the work injury."4 Dr. Koprivica also admitted that the MRI of employee's left ankle two years after the accident was "positive for nonspecific soft tissue changes consistent with inflammation," an objective finding. 5 The administrative law judge erred in ignoring objective evidence of swelling and in concluding that there was no permanent disability.

The administrative law judge discredited Dr. Mullins on the basis that he "abruptly" changed his mind as to whether there was a ligamentous injury after viewing employee's MRI results.6 Dr. Mullins in fact testified that employee's MRI, performed in August of 2016, almost two years after her fall, could not be used to rule in or exclude a ligamentous injury. He stated, "An MRI doesn't prove anything two years after. She could have had a completely torn ligament that healed by then."7 Employee's MRI confirmed objective structural evidence of a traumatic injury in the form of swelling.8

Transcript, 3833. Dr. Mullins ultimately concluded, based on review of employee's MRI, that her work injury aggravated her preexisting arthritis, causing it to become symptomatic. Employer waited so long to authorize treatment, that it was impossible for the MRI to detect a traumatic injury.9

Dr. Mullins went on to explain that while no one could use the MRI by itself to determine what injuries were caused by the November 27, 2014, injury, he could make that determination by looking at employee's medical history and his exam findings. 10

Dr. Mullins concluded that employee's work accident was the prevailing factor in causing 22% disability to her left foot, explaining, "[T]he difference is the fall. It caused those chronic changes in the ankle to become chronically painful. And that's a phenomenon we frequently see in the business is without a traumatic event, degenerative changes can go on many years without ever causing an individual any limitations or significant pain. In her case, it caused her to have chronic pain and limp and decreased her ability to function [emphasis added]."11 Even Dr. Koprivica admitted that one can have permanent disability from a soft tissue injury and that swelling can be an indication of permanent disability, however, he was unaware of employee's documented history of swelling from the date of the accident.12

In crediting the opinions of Ors. Hicks and Koprivica over that of Dr. Mullins, the administrative law judge relied upon a critically inaccurate understanding of the progression of employee's treatment and ignored how her work injury negatively affected her ability to do her job. Employee saw Dr. Walz on January 29, 2015. When her condition did not improve, she requested treatment from her employer but none was authorized. She filed a claim for compensation with an express request for treatment on September 21, 2015, after employer denied authorized treatment. The administrative law

4 Id. 4053-4054. 5 Transcript, 4054. 6 Award, p. 12. 7 Transcript, 3832. 8 Id. 3812. 9 Id. 3813. 10 Id. 3815-3816. 11 Id. 3826-3827. 12 Id. 4053-4054.


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judge incorrectly implies that employee saw Dr. Hicks "months" after seeing Dr. Walz. In fact, Dr. Mullins was the first physician employee saw, on March 7, 2016, not Dr. Hicks. Employee did not see Dr. Hicks until August 4, 2016, a year and a half after seeing Dr. Walz. It is, therefore, not surprising that Dr. Hicks found no evidence of an "acute" injury, since employee's injury was long past being acute. Dr. Koprivica did not see employee until 2018, three and a half years after the work injury, long past the time when there would be evidence of the acute injury Dr. Walz originally noted. Dr. Koprivica further incorrectly believed that employee was working only twenty hours before her injury. 13

In conclusion, we must rely on the complete, objective, and accurate history in the record that the administrative law judge ignored: Employee had immediate and permanent pain with documented swelling caused by a contusion that resulted in employee reducing her work hours by half. Employee's November 27, 2014, injury had a profound effect on her ability to work and perform her job duties, a fact the administrative law judge misunderstood. There has been steady and continual objective evidence of swelling resulting from an aggravation of arthritis that impacts employee's ability to stand and walk and has resulted in significant permanent disability.

Permanent and total disability for purposes of Second lniurv Fund Liability Section 287.220.3 (2014) applies to injuries occurring after January 1, 2014. This law changed the requirements for establishing SIF responsibility for permanent and total disability. An employee's preexisting disability must now "combine" with her primary injury to create total disability while meeting the following criteria: (1) Be a permanent disability equal to a minimum of fifty weeks; and (2) pertain to either a prior work-related injury, an injury to the "opposite extremity," or to significantly aggravate or accelerate the subsequent work-related injury. Id.

Employee in this case clearly had a qualifying preexisting work-related low back disability associated with an Illinois work injury settled based on 22.5% permanent disability of the body as a whole. Ors. Koprivica and Mullins each assigned 20% permanent disability of the body as a whole (80 weeks) for this prior disability. Preexisting disability related to employee's right upper extremity, evaluated by Dr. Mullins as 35% of the right shoulder (81.2 weeks) should also be eligible for SIF compensation as an "opposite extremity" to her left leg pursuant to 287.220.3(2)(a)(iv), meeting the threshold requirement of greater than fifty weeks. Also eligible for SIF compensation pursuant to the applicable version of 287.220.3(2)(a)(iii) are prior disabilities that "aggravated" or "accelerated" employee's primary injury. Both Ors. Mullins and Koprivica agreed that there was synergy between prior disabilities to employee's left hip, back, and right upper extremity and each meet the fifty-week threshold for preexisting disability.

Under§ 287.220.3(2)(a), once the threshold is met, if there is a "combined" effect that includes an eligible disability under subsection 287.220.3(2)(a), then a// prior eligible disabilities are considered when determining permanent total disability: "Such

13 Transcript, 4044, 89, 92.


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employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph results in a permanent total disability." If employee's prior back disability combines with her work injury in any way, by itself or with the prior disability to her right upper extremity or hip to create permanent disability, then the SIF is liable. This interpretation is consistent with prior case law regarding SIF liability and in keeping with the purpose of the SIF to (1) relieve employers from liability to employees for disabilities not specifically attributable to injury suffered while in their employment and (2) protecting employees by providing a fund from which employees are compensated for that portion, if any, of their disability above that attributable to their last injury. Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo. 1966); see Treasurer of State v. Witte, 414 S.W.3d 455, 469-470 (Mo. bane 2013).

The administrative law judge denied employee's permanently total disability claim against the SIF on a skewed factual findings not supported by and contrary to the evidence in the record.

The administrative law judge ignores employee's testimony that, after her injury, she could no longer use a ladder; she required assistance from co-workers, and that employer reduced her hours by half. By the end of her shift employee would sometimes cry in the parking lot because of throbbing pain and soak her foot when she got home.

The administrative law judge incorrectly states, "Nothing in the record remotely suggests that (employee's] job ended because she was physically incapable of performing the job."14 After employee reported her injury, employer promised to make an appointment to evaluate her foot. Employer never authorized the appointment. Prior to employee's injury, employer told her that she would be a good candidate for a permanent position at the end of her seasonal employment. However, employer not only reduced employee's hours by half after the injury but further failed to offer regular employment when her seasonal employment ended.

The administrative law judge asserts that employee "admitted to having no problems walking up until the time she left Macy's."15 To the contrary, employee testified that her foot pain drove her to tears. Employee asked for shorter shifts because if she was on her feet for any length of time, her pain would get worse. Employee soldiered on, working reduced hours, but her foot would swell. Employee stated that, by the time she left work, "I would limp out to the car. Sometimes I had tears in my eyes by the time I got home. It was painful."16

The administrative law judge stated "Claimant's managerial experience and business acumen places her in a different category than many individuals with similar education."17 While employee had past experience as a business owner, owning a business is not a job one can apply for, nor does it make a person employable.

14 Award, p. 13. 1s Id. 16 Transcript, 3782. "Award, p. 13.


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Employee is a high school graduate. Her real estate license in Illinois expired more than a decade ago. Vocational expert Phil Eldred did not believe employee had viable transferable skills or that she was capable of performing jobs employer's expert Ben Hughes identified such as ticket sales, clerk, information taker, or surveillance system monitor because such positions require sedentary or light work levels. He further noted the scarcity of such positions in the national labor market. Employee was unable to utilize transferable supervisory skills learned in her previous work, due to new physical restrictions on lifting and standing. Employee does not type well and lacks computer skills. Her advanced age combined with her functional limitations made it unlikely employers would hire her, especially in view of her post injury four-year long period of unemployment.

The administrative law judge criticized employee for not retaking a computer test at Bass Pro, after she failed the test by one point and failing to look for other work. In fact, employee was not allowed to take the computer test again. She further failed to obtain several jobs after leaving her work with employer. 18 Employee should not be faulted for giving up looking for jobs at that point and attempting to make the best of her involuntary retirement. The administrative law judge's decision inappropriately penalizes employee for being a successful business owner before her injury and having the means to visit her grandchildren. Total disability does not require an employee to be completely inactive or inert. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo. App. 1982); Underwood v. High Road Indus., 369 S.W.3d 59, 66 (Mo. App. 2012). Given employee's advanced age, need for accommodations, lack of education and the combined limitations from her left foot, shoulder, hip and back, she must be considered permanently and totally disabled as the result of the combination of her prior and work disabilities for SIF purposes.

Because the majority concludes otherwise, I respectfully dissent.

Shalonn K. Curls, Member

18 Transcript, 113-114, 3762.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

AWARD

Claimant: Judith Gustin

Dependents: N/ A

Employer: Macy's Retail Holdings, Inc. ( settled)

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

Insurer: Macy's Retail Holdings Inc. c/o Macy's Corp Services Ins. (settled)

Hearing Date: April 2, 2019 (Record closed May 2, 2019)

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No.

Injury No. 14-102494

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: VRM/ps

2. Was the injury or occupational disease compensable under Chapter 287? Yes, as to Employer.

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

4. Date of accident or onset of occupational disease: November 27, 2014.

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

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

7. Did employer receive proper notice? Yes.

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

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

10. Was employer insured by above insurer? Yes.

11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee stumbled over a box without falling, sustaining a contusion to the left foot.

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

13. Part(s) of body injured by accident or occupational disease: Left foot.

1

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Judith Gustin

14. Nature and extent of any permanent disability: None.

15. Compensation paid to-date for temporary disability: None.

16. Value necessary medical aid paid to date by employer/insurer: $3,124.32.

1 7. Value necessary medical aid not furnished by employer/insurer: None.

18. Employee's average weekly wage: Sufficient to allow the following rate:

19. Weekly compensation rate: $220.75.

20. Method of wage computation: By stipulation.

COMPENSATION PAYABLE

21. Amount of compensation payable: None.

22. Second Injury Fund liability: No.

23. Future requirements awarded: No.

Injury No.: 14-102494

2

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Judith Gustin Injury No. 14-102494

FINDINGS OF FACT and RULINGS OF LAW:

Claimant: Judith Gustin

Dependents: NIA

Employer: Macy's Retail Holdings, Inc. (settled)

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

Insurer: Macy's Retail Holdings Inc. c/o Macy's Corp Services Ins. (settled)

Hearing Date: April 2, 2019 (Record closed May 2, 20 I 9)

INTRODUCTION


Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: VRM/ps

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on April 2, 2019. The claim against Employer/Insurer settled prior to the hearing. The record remained open for 30 days to afford the parties an opportunity to submit additional evidence. The record was completed May 2, 2019. Claimant Judith Gustin appeared personally and with her attorney, Randy Alberhasky. The Treasurer of Missouri as Custodian of the Second Injury Fund appeared by Assistant Attorney General Skyler Burks. The parties reached stipulations of facts and narrowed the issues, as follows:

STIPULATIONS

(I) On or about November 27, 2014, Macy's Retail Holding Inc. (Macy's or Employer) was an employer operating under and subject to The Missouri Workers' Compensation Law.

(2) On the alleged injury date of November 27, 2014, Judith Gustin (Claimant) was an employee of Macy's, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about November 27, 2014, Claimant sustained an injury to her left ankle by accident as a result of a stumbling over a box, which incident arose out of and in the course of her employment with Macy's.

( 4) The above-referenced employment and accident occmTed in Greene County, Missouri. Venue is proper.

(5) The Claim for Compensation was filed within the time prescribed by§ 287.430 RSMo.

(6) At the time of the injury by accident of November 27, 2014, Claimant's average weekly wage was sufficient to allow a compensation rate of $220.75 for temporary total disability compensation/ permanent total disability/ permanent partial disability compensation.

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Issued by DIVISION OF WORJ<ERS' COMPENSATION Employee: Judith Gustin

(7) No temporary total disability has been provided.

(8) Employer/ insurer provided $3,124.32 in medical treatment to Claimant.

ISSUES


( 1) What, if any, percentage of permanent partial disability was caused by the primary injury?

(2) What is the date of maximum medical improvement?

(3) What is the nature and extent of the Second Injury Fund's liability for permanent total or enhanced permanent partial disability?

EVIDENCEPRESENTED1

Claimant testified at the hearing in support of her claim and presented the live testimony of Phillip Eldred, C.R.C. The Second Injury Fund tendered no witnesses. The following exhibits were offered and admitted:

Claimant's Exhibits

Medical records I. CoxHealth, 33 pages certified 09.14.16 2. Dreyer Medical Clinic, 76 pages 3. Margaret Pardee Memorial Hospital, 63 pages certified 10.22.15 4. · Mercy Hospital, 419 pages certified 01.13.16

· 5. Mercy Hospital, 1,311 pages certified 11.05.15 6. Mercy O1thopedic Hospital, 1,568 pages certified 02.20.19 7. Northwest Regional Medical, 28 pages certified 01.14.16

Rep01ts 8. Phil Eldred report 09.22.17

a. CV

Documents 9. Claim 09.17.15 10. Answer from Second Injury Fund 10.05.15 11. Answer from Employer/Insurer 10.09.15 12. Approved Stipulations for Compromise Settlement 0 1.30.17 13. Illinois Workers' Compensation docket sheets for 2007 injury 14. -17.

Correspondence pursuant to §287.210 (various dates) 18. Medical Disclosure (Mercy O1tho) letter dated 03 .14.19

1 All exhibits appear as the same as when they were received and admitted into evidence. The undersigned judge made no alterations.

4


Depositions 19. Deposition of Judith Gustin 05.17.16 20. Deposition of Judith Gustin 02.20.18 21. Dr. Mitch Mullins deposition dated March 27, 2019 with exhibits

Second Injury Fund's Exhibits2

I. Deposition- Judith Gustin 05.17.16 II. Deposition - Judith Gustin 02.20.18 III. CV - Dr. P. Brent Koprivica IV. Report-Dr. P. Brent Koprivica 06.23.18 V. Addendum Report-Dr. P. Brent Koprivica 10.2.18 VI. Deposition- Dr. P. Brent Koprivica VII. CV - Benjamin Hughes, rehabilitation counselor VIII. Report-Benjamin Hughes 09.6.18 IX. Deposition - Benjamin Hughes 11.26. I 8 X. Medical Record- Dr. Bradley Walz XI. MRI Report - Dr. Kevin Baehl 08.30.16 XII. Report - Dr. David Hicks 08. I 6.16 XIII. Addendum Report - Dr. David Hicks 09 .20. I 6 IXa. Functional Capacity Evaluation Xa. Functional Capacity Checklist Xla. Back Function Questionnaire

FINDINGS OF FACT


Judith Gustin was 78 years old at the time of the hearing. She holds a high school diploma and completed one semester of college. She worked about 40 years in real estate, serving as an agent, broker, and business owner. She first obtained her real estate license in 1979. She attained her broker's license in 1984. In 2004, she sold her business to Coldwell-Banker, but remained as the company's local office manager, managing as many as 38 agents.

In 2008, Claimant made the decision to move from Illinois to Missouri, a change that brought her closer to family. This coincided with the expiration of her Illinois real estate license which she did not renew. She did not work again until she obtained a temporary, seasonal, part-time, sales position in the shoe department at Macy's in Springfield, Missouri, in October 2014. During her six-year hiatus from the workforce, Claimant stayed at home to care for her husband who had Alzheimer's disease. He eventually died of cancer. Claimant indicated that she needed a break from caregiving and the job at Macy's provided that relief.

The job at Macy's had a definite start date and end date, and with varied hours from 8 to 40 per week. There was no set schedule. Claimant's duties included waiting on and checking out customers, straightening the floor, and restocking. Before the work accident of November 27, 2014, Claimant used

2 Exhibits l through XIII were pre-marked, offered at the beginning of the hearing, and admitted. During the hearing, the Second lnjuiy Fund offered three additional exhibits which also were marked IX, X, and XI, and admitted without objection. Due to the inadve1tent duplication of exhibit numbers, and to avoid confusion on appeal, the latter three exhibits cany the designation of"a" in addition to the roman numeral. The patties were so advised and had no objection.

5


a ladder in her job. After the injury, she had trouble with the ladder and her foot would swell. She tried to limit the amount of time she was on her feet after the accident. Although Claimant had hoped there might be a permanent position available following the seasonal work, such job did not materialize. Her seasonal job came to an end as scheduled on March 1, 2015.

Subsequently, Claimant applied for a position at Bass Pro in its telephone center. This required that she complete a four-week training course and pass a test. Claimant said she was "excellent" in the customer service aspect of the training, but failed the computer test by one point. While she could have retaken the test, she decided to stay home. Asked in her deposition why she did not return to retake the test, Claimant explained that she has five children scattered all over, grandchildren that are growing, and great grandchildren whom she visits, "and that's what I'd rather do at this point in my life." (Ex. II, p. 10). She has not worked since leaving Macy's on March 1, 2015.

Occupational Injury

During the busy Thanksgiving weekend, on November 27, 2014, Claimant stumbled over a box that hit her left foot and went "flying forward." Fortunately, she was caught by two customers before she hit the floor. While she began having throbbing and swelling on the top of her left foot, she was able to finish her work day. In fact, she continued to work her assigned shifts every day she was assigned to work until the temporary job ended. While working, she would sit down as time allowed and relied on coworkers to climb the ladders when needed. She did not, however, attempt to report the injury for nearly two weeks. She notified her supervisor by voice message, but the supervisor did not receive the message at that time.

Medical Treatment for the Accident

Two months after the incident on January 29, 2015, Claimant went on her own to see Dr. Bradley Walz, an orthopedic surgeon in Springfield, Missouri. Dr. Walz had treated Claimant in the past for her hip. She reported to Dr. Walz experiencing pain in her left ankle after a fall at Macy's, with decreased mobility, hip stiffness, and lmee discomfort. Dr. Walz found ecchymosis of the ankle with a "little bit" of swelling and slight tenderness to palpation over the lateral and medial aspect of the left ankle and knee joint. X-rays of the left ankle, however, showed no fractures and only "very mild degenerative changes." Dr. Walz diagnosed a left ankle contusion, recommended no treatment, and instructed Claimant to contact his office if she had any future issues with her knee or ankle. Claimant did not follow-up with Dr. Walz.

Claimant filed a claim for compensation on September 17, 2015. About 16 months after the work incident on March 7, 2016, Claimant saw Dr. Mitchell Mullins at the request of her attorney. Dr. Mullins did not believe Claimant had reached maximum medical improvement, and he recommended an MRl and surgical evaluation, opining that Claimant likely had a "ligamentous disruption."

Employer authorized a visit to Dr. David Hicks, an orthopedic surgeon. In August 2016, Dr. Hicks found swelling in the foot with pain and tenderness suggestive of a soft tissue contusion, but he did not believe it had resulted in the advancement of any arthritis. Dr. Hicks specifically noted that Claimant ambulated without an obvious limp or assistive device. The MRI, which Dr. Hicks ordered and personally reviewed, revealed arthritic changes tlu·ough the midfoot and in the forefoot with postsurgical changes as well as around the first metatarsophalangeal joint. He saw subchondral cysts

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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Judith Gustin Injury No. l 4-102494

around the tarsometatarsal joints which Dr. Hicks said was suggestive of chronic arthritic changes. He specifically found "no tendinous or ligamentous injuries" which had been Dr. Mullins' concern when he recommended the MRI months earlier. In reviewing medical records, Dr. Hicks noted Claimant's various preexisting orthopedic issues and prior diagnosed arthritic changes in her extremities. He concluded there was no evidence of any acute pathology from the incident at Macy's. Like Dr. Walz, Dr. Hicks imposed no limitations and recommended no treatment.

Settlement

On January 30, 2017, Claimant resolved her claim against Employer/Insurer for 15 percent of the left foot for $4,966.88 (Ex. 12).

Prior Medical Conditions

Although Claimant contended that she had little, if any, physical limitations prior to the last work injury, she had suffered from a number of preexisting medical conditions. In approximately 1991, she underwent right shoulder surgery to repair a tom rotator cuff. In 2005, she had a lumbar laminectomy at L4-5 for a herniated disk that was work-related and for which she received a disability settlement in Illinois based upon 22.5 percent to the whole body. In 2006, she was treated for a right foot contusion. In 2007, she was treated again for pain in the right foot. In 2008, she had surgery on both feet to correct exostosis of the first metatarsals. In 2009, Claimant complained several times of bilateral hand pain in left and right carpometacarpal joints with degenerative spurring of the index finger, as well as pain in the right third toe. In 2010 and 2011, Claimant sought treatment for bilateral thumb arthritis with adduction contractures and bilateral carpal tunnel syndrome, which were treated surgically through bilateral carpal tunnel release and right thumb arthroplasty. She continued to follow up in 2011 on several occasions for bilateral wrist and right thumb complaints.

On May 17, 2010, Claimant fell and suffered a left intertrochanteric hip fracture. She was hospitalized from May 17, 2010, through May 21, 2010, during which Dr. Walz performed an open reduction and internal fixation of the left hip fracture. She also was diagnosed on July 12, 2010, with osteopenia of the right hip. In November of 2011, she fell at home and fractured her right proximal humerus, requiring surgery and a right reverse total arthroplasty. She continued to treat for both thumbs and the shoulder in 2012. In 2013, she fell yet again, injuring her left hand and thumb, which required a left thumb arthrodesis.

On May 16, 2013, she was evaluated for lumbar spine and right femur for osteopenia. An MRI on August 27, 2013, revealed degenerative changes and disk bulges in the lumbar spine with nerve compression. In 2013 and early 2014 she continued to be seen for low back pain, osteoporosis, and lumbar disc disease.

Additional Medical Opinions

I. Dr. Mitchell Mullins

While his initial concern had been that Claimant was suffering from a "ligamentous disruption," he changed his view of Claimant's medical issue after Dr. Hicks' evaluation and the MRI found "no tendinous or ligamentous injuries." Dr. Mullins issued a report on October 24, 2016, and indicated that

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Claimant's work accident caused an "asymptomatic condition, specifically degenerative joint disease to become painful and therefore, it is work-related." Dr. Mullins repeated that opinion after he saw Claimant again for an independent medical evaluation (IME) on April 5, 2017. Dr. Mullins is not an orthopedist. Dr. Mullins believed the work accident caused chronic pain, a limp, and a decreased ability to function. Dr. Mullins assigned a 22 percent permanent partial disability for the primary work injury to the left ankle.

In addition to the primary injury, Dr. Mullins found the following preexisting disabilities:

20 percent to the body as a whole for the lumbar spine; 3 percent to the body as a whole for malignant melanoma; 26 percent to the left hip; 3 5 percent to the right shoulder for a total joint arthropathy; 24 percent of the right hand for basal thumb arthritis and atthroplasty; 28 percent of the left hand for basal thumb arthritis with arthroplasty; 20 percent to the right wrist for carpal tunnel release; 20 percent to the left wrist for carpal tunnel release; 18 percent to the BA W for Bell's palsy; 18 percent to the right foot for bunionectomy; 18 percent to the left foot for bunionectomy; 18 percent to the left knee for degenerative joint disease; and 16 percent to the right knee for degenerative joint disease.

Dr. Mullins noted that Claimant has several physical limitations including a reliance on a cane, and an inability to walk or stand more than 15-30 minutes, which Dr. Mullins attributed to both her ankle problems, as well as her preexisting orthopedic issues. He found that Claimant had problems holding things, which he attributed to her preexisting right shoulder, carpal tunnel surgeries, and basal thumb arthritis. He found that Claimant could sit for only 1-2 hours based upon her prior work-related back condition. He fu1ther found that the prior back injury prevented Claimant from lifting more than 20-25 pounds even before the November 27, 2014, work injury. He believed that her lifting ability deteriorated subsequent to the accident. Dr. Mullins noted that Claimant's inability to stand on one foot without holding onto something was a measure of her lack of strength in the leg, hips, and ankles.

Dr. Mullins determined that because of her back, hip, knees and especially the ankle, Claimant was limited to lifting no more than 20 pounds, but it was medically appropriate for her to limit herself to 8-10 pounds. He believed the ankle limited her standing and walking. The back and ankle limited her sitting because her ankle would get stiff and she needed to be able to move around. She could not use ladders, stairs or slippery surfaces due to the ankle. She would need to elevate the ankle on a daily basis to reduce swelling and prevent complications in the ankle. Her ankle would likely get better or worse depending upon how much she used it and how active she was. She might be active one day, but pay for the activity the next. Given all of her disabilities, Dr. Mullins described Claimant as "exceptional" given her resiliency.

Ultimately, Dr. Mullins concluded that Claimant was permanently and totally disabled as a result of her most recent work injury together with her preexisting injuries, including a prior work related lumbar laminectomy. He found Claimant to be unemployable in the open labor market because the preexisting disabilities combined with and aggravated her last work injury. He did not believe Claimant was capable of working a 40-hour work week.

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2. Dr. P. Brent Koprivica


Dr. Koprivica, like Dr. Mullins, is not an orthopedist. He saw Claimant at the request of the Second Injury Fund on June 23, 2018. Dr. Koprivica's opinions differed from those provided by Dr. Mullins. Dr. Koprivica limited his findings regarding preexisting disabilities to the following:

35 percent to the right shoulder; 20 percent to the right hand; 20 percent to the left hand, 20 percent to the body as a whole for the lumbar spine; 20 percent of the left hip; 15 percent to each foot;

As a result of the preexisting disabilities, Dr. Koprivica found a number of medical limitations:· 1) avoiding repetitive or sustained activities using the right arm above shoulder level, 1) no repetitive lifting with the arm flexed or abducted away, 3) no repetitive use of the hands (including pinching or grasping), and for the back specifically, 4) no frequent or constant bending at the waist, pushing, pulling or twisting, no sustained or awkward postures, no whole body vibration or jarring activities, no crawling, squatting, kneeling or climbing, no frequent use of ladders, and no lifting more than 25 pounds.

Dr. Koprivica found that several of the conditions rated by Dr. Mullins were not a significant preexistent industrial disability. These include melanoma in situ, left carpal tunnel, Bell's palsy, and mild degenerative disease in the knees bilaterally. Moreover, Dr. Koprivica disagreed with Dr. Mullins that Claimant's work injury on November 27, 2014, resulted in an industrial disability, as he stated:

Dr. Mullins, in his argument, seems to imply that the primaty injury ou November 27, 2014, resulted in industrial disability. In an addendum repmt dated October 24, 2016, Dr. Mullins opined, "Prior to Ms. Gustin's injury, she had no ongoing symptoms of pain. There is no date that there were arthritic changes in the foot at the time of the injury. Although the degenerative changes existed, they did not cause any ongoing symptoms of pain or impairment. Following the injury, she now has ongoing daily foot pain."

I would point out that somewhat in conflict with this opinion was Dr. Mullins' rating of an eighteen (18) percent permanent partial disability of the left foot due to prior bunionectomy.

My belief is that there were, in fact, disabling symptoms involving both feet prior to the November 27, 2014, claim. Ms. Gustin did have prior multiple surgeries on both feet. She had bilateral bunionectomies. She had resection ostectomies for hammertoe deformities involving multiple digits on both feet.

Ms. Gustin did tell me that her greatest pain was more in the forefoot, but she did have bilateral foot pain, which would go along with symptoms from the midfoot degenerative disease as well, even prior to November 27, 2014.

She did not wear high heels because of the pain she experienced in her feet with standing and walking tasks, even prior to November 27, 2014, based on my understanding of her histmy.

(Ex. 4, pp. I 9-20).

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Issued by DIVISION OF WORKERS' COMPENSATION Employee: Judith Gustin InjuryNo. 14-102494

Dr. Koprivica was quite clear that he did not believe Claimant had sustained any permanent disability from her stumble at Macy's on November 27, 2014. As Dr. Koprivica succinctly stated, "I don't believe the contusion is a permanent injury. I think that's a temporary soft tissue injury from which you would recover. But she still had ongoing pre-existent disability of the foot that continued. And that progressed, will continue to progress the rest of her life." (Ex. VI, p. 35). Dr. Koprivica certainly did not believe Claimant was permanently and totally disabled from the last injury or in combination with preexisting conditions. He mused that if Claimant was found to be permanently and totally disabled, it was arguable that Claimant had that degree of disability even before the accident at Macy's, noting Dr. Mullins' finding that Claimant had 570.22 weeks of preexisting industrial disability. This is an amount well above the 400 weeks representing a whole woman.

Moreover, Dr. Koprivica believed Claimant had sustained a subsequent disability involving the left hand that was unrelated to the November 27, 2014 accident, due to the poor outcome from multiple implant atihroplasties for the left index finger metacarpophalangeal joint. He believed this subsequent disability further compromised Claimant's hand capabilities in terms of strength. Dr. Koprivica issued an addendum report, dated October 2, 20 I 8, after reviewing the vocational report of Ben Hughes. Mr. Hughes' report did not change Dr. Koprivica's opinions.

In his deposition of January 31, 2019, Dr. Koprivica agreed that even prior to November 27, 2014, Claimant had profound preexisting disability. He explained that the prior surgeries on Claimant's feet, to correct bunion and hammertoe deformities, changed the mechanics of the feet, as well as made worse the mechanics in the low back and hip. While he believed there was synergism between the preexisting conditions themselves, he specifically denied that any preexisting condition had interacted with the contusion diagnosed from the November 27, 2014 accident. Simply put, as Dr. Koprivica stated,

I don't believe the contusion was a permanent injury. I think that's a temporary soft tissue injury from which you would recover. But she still had ongoing pre-existent disability of the foot that continued. And that progressed, will continue to progress the rest of her life.

(Ex. VI, p. 35).

Vocational Opinions

1. Phillip Eldred

Phil Eldred performed a vocational evaluation at the request of Claimant's attorney. He identified the left hip, right shoulder, both feet and back as preexisting disabilities. He believed that Claimant could not type well or use computers, which resulted in failing the test at Bass Pro. Based on Dr. Mullins' report, Mr. Eldred opined that Claimant was relegated to the less than sedentary exetiional level because she could only lift 8-10 pounds and had significant limitations on her ability to sit, stand and walk. Moreover, he believed that Claimant could not perform her previous jobs, had no transferable skills and was not a candidate for retraining. Placement potential was of particular concern given her advanced age and break in employment. Her pain and limitations on lifting and posture, such as sitting for only 30 minutes to an hour at a time, standing/walking for only 30 minutes at a time and need to occasionally elevate her leg, made it even less likely she would obtain job offers. He concluded that Claimant was permanently and totally disabled as a result of the combination of her prior disabilities in combination with her primary injury.

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2. Benjamin Hughes


Mr. Hughes performed a vocational evaluation on behalf of the Second Injury Fund. He agreed that under her medical restrictions, Claimant would only be capable of working part-time, but he considered 15-20 hours a week to be substantial, gainful employment. Moreover, he believed Claimant certainly was capable of retraining given her intellectual capabilities.

Comparative Conditions

Claimant said prior to moving to Missouri in 2008, she played golf three times per week, despite her numerous preexisting conditions. She quit playing golf after moving to Missouri, not because of any physical disability, but because of her husband's deteriorating health. Prior to her accident in 2014, she expressed no limitations on her ability to sit, walk, and drive. She limited lifting to 20 to 25 pounds.

After the work accident, and as of the date her job ended on March 1, 2015, Claimant testified she still had no limits on walking. She could walk better than standing. She could sit as long as she wanted. She had no trouble sewing and sewed four to five days a week. She also worked on her computer, using Facebook and correspondence.

Subsequent to March 1, 2015, Claimant has continued to drive, sew, quilt, garden, shop, clean, cook, and perform laundry. She states that her left foot and ankle have not improved and continue to swell. She now limits walking and standing to 30-60 minutes. She limits lifting to no more than 10 pounds out of concern for her back. If she sits or stands more than 1-2 hours at a time her back bothers her.

Credibility Findings

As detailed below, I do not find credible or persuasive the opinions of Dr. Mullins or Phillip Eldred in this case.

RULINGS OF LAW

Claimant has the burden of establishing entitlement to compensation. § 287.808 RSMo; Cardwell v. Treasurer, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially and resolve factual conflicts without giving the benefit of the doubt to any party, and shall construe strictly the provisions. § 287.800 RSMo; Dunn v. Second Injury Fund, 272 S.W.3d 267,275 (Mo. App. E.D. 2008).

Maximum Medical Improvement

Dr. Hicks evaluated Claimant on August 8, 2016. He indicated that there was no further treatment needed with respect to the work-related injury sustained on November 27, 2014. The date of maximum medical improvement was August 8, 2016.

Percentage of Disability - Last lnjwy

When an employee alleges pe1manent total disability, as in the instant case, the administrative law judge first must consider the degree of disability due to the last injury. APAC Kansas, Inc. v. Smith, 227 SW.3d

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1, 4 (Mo. App. W.D. 2007), and Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. E.D. 2000). Ms. Gustin resolved her claim with Employer based on 15-percent permanent partial disability to the left foot. That settlement is a compromise between Claimant and Employer. It is not binding on the Administrative Law Judge nor on the Second Injury Fund which was not a party to the settlement. Totten v. Treasurer of State, 116 S.W.3d 624,629 (Mo. App. E.D. 2003).

In bears repeating the mechanism of the alleged injury. Claimant's foot struck a box. She stumbled but was caught before she actually fell. Dr. Walz, the orthopedic surgeon whom Claimant saw on her own accord, found only a contusion and nothing that required treatment. Claimant was directed to observe the extremity and return if she had problems, which she did not do. Months later, Dr. Hicks, another orthopedic surgeon, personally reviewed an MRI and found no acute injury and no work-related aggravation of atihritic changes. Again, no treatment was recommended. Significantly, Dr. Hicks also observed that Claimant walked without noticeable limp and without an assistive device.

When Dr. Mullins first examined Claimant, he believed Claimant was suffering ankle pain and required an MRI as she likely had suffered a ligamentous disruption. When the MRI failed to substantiate his initial impressions, Dr. Mullins abruptly changed his opinion, stating that the "fall" caused an "asymptomatic condition" to become painful and was thus work-related. He abandoned his theory that it was a "ligamentous disruption." Dr. Mullins' opinion disagrees with that of a board certified orthopedic surgeon who personally reviewed the MRI.

After physically examining Employee and looking through all the medical records, Dr. Koprivica concluded Claimant suffered a contusion on November 27, 2014. He noted the left ankle MRI showed no acute findings. Dr. Koprivica opined the contusion did not have any ongoing disability, and played no factor in Employee's physical ability to function.

Thus, three physicians, two of which are orthopedic specialists, state that Claimant suffered, at most, a contusion, or bruise, on November 27, 2014. Only Claimant's IME doctor, Dr. Mullins, finds a permanent disability from the work incident, and his basis for such finding shifted from a ligamentous disruption to an aggravation of an asymptomatic condition, when his original theory was objectively shown by the left ankle MRI to be unsupported. The overwhelming weight of the evidence establishes Claimant suffered a contusion on November 27, 2014, causing no permanent disability.

No Permanent Total Disability

Even if I would have determined that Claimant suffered some modicum of permanency from the last work accident, I certainly find no credible evidence that that this slight injury combined with her multitude of preexisting injuries to cause permanent total disability.

Permanent total disability means an employee is unable to compete in the open labor market. Forshee v. Landmark Excavating and Equip., 165 S.W.3d. 533,537 (Mo. App. E.D. 2005). This means the inability to perform the usual duties of the employment in a manner that such duties are customarily perfonned by the average person engaged in such employment. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849 (Mo. App. S.D. 1995). While "total disability" does not require that the employee be completely inactive or inert, Sifferman v. Sears Roebuck and Co., 906 S.W.2d 220 (Mo. bane 2003), ove11'uled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. bane 2003), it does require a finding that empl9yee is unable to work in any employment in the open labor market and not merely the

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inability to return to his last employment. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. bane 2003). It is within the province of the Administrative Law Judge to determine the extent of any permanent disability. Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. App. E.D. 1998).

Claimant continued to work without interruption for months following her accident. Her job ended on schedule. Nothing in the record remotely suggests that her job ended because she was physically incapable of performing the job. While she contends her foot would swell, she admitted to having no problems walking up to the time she left Macy's. Further, Claimant's managerial experience and business acumen places her in a different category than many individuals with similar education. Contrary to her vocational expert's opinion, Claimant demonstrated an ability to learn, despite her advanced age, when she took a four-week course at Bass Pro. While she failed the computer test by one point, her decision to not retake the test or look for other work had nothing to do with her age or any intellectual or physical capability. She just decided to enjoy her children and grandchildren. In effect, she chose a well-deserved retirement after a most successful business career. That is NOT evidence of permanent total disability.

No Enhanced Permanent Partial Disability

Claimant alternatively seeks enhanced permanent partial disability. Section 287.220.3(2) RSMo 2014, provides that "No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund." 3 Further, even if a permanent partial disability claim against the Second Injury Fund remains legally viable after the enactment of the 2014 amendments to§ 287.220, Claimant's contusion to her foot was temporary injury, with no permanency, and I fail to find any credible evidence of synergism between this work injury and her preexisting disabilities.

As no benefits are awarded, there is no basis on which to award an attorney's fee.

I certify th3t on /o-1 ~Ii I delivered a copy of the oregoing award to the parties lo the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file. Made by:

_ -------? <:::vt ( ,:;~·····""7' . /}""'-',--... _.., __

:,,/ ..,(_.;T' rt-I•",,-,..,_,,~ ,,_. <t,,l...,_;::,_::.::::. Victorine R. Mahon

Chief Administrative Law Judge Division of Workers' Compensation

3 The undersigned is aware that the 2014 amendments to§ 287.220 RSMo, are being challenged in Cosby v. Treasurer, SD 35115, which is pending on transfer to the Missouri Supreme Court.

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FINAL AWARD DENYING COMPENSATION · 2020-02-21 · her ability to do her job. Employee saw Dr. Walz...

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