FINAL AWARD ALLOWING COMPENSATION - Missouri · FINAL AWARD ALLOWING COMPENSATION (Affirming Award...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No.: 11-096226

Employee: Lisa Deardorff Employer: State of Missouri, Fulton State Hospital Insurer: CARO Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 3, 2017. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued March 3, 2017, is attached and incorporated by this reference. The Commission further approves and affirms the administrative law judge’s allowance of attorney’s fee herein as being fair and reasonable. Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this 13th day of June 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

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AWARD

Employee: Lisa Deardorff Injury No. 11-096226 Dependents: Employer: Fulton State Hospital Additional Party: Second Injury Fund Insurer: Self-insured Hearing Date: December 21, 2016 Checked by: RJD/cs

FINDINGS OF FACT AND RULINGS OF LAW 1. Are any benefits awarded herein? Yes. 2. Was the injury or occupational disease compensable under Chapter 287? Yes. 3. Was there an accident or incident of occupational disease under the Law? Yes. 4. Date of accident or onset of occupational disease: November 27, 2011. 5. State location where accident occurred or occupational disease was contracted: Callaway 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? Employer is self-insured. 11. Describe work employee was doing and how accident occurred or occupational disease contracted: In the

course of her employment, Employee was slammed into a wall by a mental patient. 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: Low back. 14. Nature and extent of any permanent disability: 7.5% permanent partial disability of the body as a whole

related to the low back,

15. Compensation paid to-date for temporary disability: $1354.04. 16. Value necessary medical aid paid to date by employer/insurer? $568.70. 17. Value necessary medical aid not furnished by employer/insurer? None.

Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Lisa Deardorff Injury No. 11-096226

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18. Employee's average weekly wages: $568.70. 19. Weekly compensation rate: $379.13. 20. Method wages computation: Stipulation.

COMPENSATION PAYABLE

FROM EMPLOYER: 30 weeks of permanent partial disability benefits, totaling $11,373.90. FROM SECOND INJURY FUND: None. The claim against the Second Injury Fund is denied in full. Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Van Camp Law Firm, LLC


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FINDINGS OF FACT AND RULINGS OF LAW: Employee: Lisa Deardorff Injury No. 11-096226 Dependents: Employer: Fulton State Hospital Additional Party: Second Injury Fund Insurer: Self-insured Hearing Date: December 21, 2016

PRELIMINARIES These three cases (Injury No. 11-087035, Injury No. 11-096226 and Injury No. 13-064364) were consolidated for hearing. The evidentiary hearing was held on December 21, 2016 in Columbia. Claimant, Lisa Deardorff, appeared personally and by counsel, Christine Kiefer; Employer, Fulton State Hospital, appeared by counsel, Kirsten Dunham, Assistant Attorney General; the Second Injury Fund appeared by counsel, Da-Niel Cunningham, Assistant Attorney General. The parties requested leave to file post-hearing briefs, which leave was granted. The cases were submitted on January 27, 2017.

ISSUES TO BE DECIDED IN INJURY NO. 11-087035

In Injury No. 11-087035, the parties agreed that the issues to be decided were:

1. Whether the accident of October 10, 2011, was the prevailing factor in causing any or all of the injuries and/or conditions alleged in evidence;

2. The liability, if any, of Employer for permanent partial disability benefits;

3. The liability, if any, of the Second Injury Fund for permanent partial disability

benefits; and 4. The liability, if any, of Employer for future medical benefits.

STIPULATIONS IN INJURY NO. 11-087035

In Injury No. 11-087035, the parties stipulated as follows:

Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri


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1. That the Missouri Division of Workers' Compensation has jurisdiction over the hearing and adjudication of the claim;

2. That venue for the hearing is proper in Callaway County and adjoining counties, including Boone County;

3. That the claim for compensation was filed within the time allowed by the statute of

limitations, §287.430;

4. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;

5. That Employee, Lisa Deardorff, sustained an accident arising out of and in the course

of her employment with the Fulton State Hospital on October 10, 2011;

6. That Claimant's average weekly wage is $590.55, and that the compensation rates are $393.70 for temporary total disability and permanent total disability, and $393.70 for permanent partial disability;

7. That the notice requirement of §287.420 is not a bar to the claim for compensation;

8. That Fulton State Hospital was an authorized self insured for Missouri Workers'

Compensation purposes at all relevant times; and

9. That Employer paid $2090.65 in medical benefits and no temporary total disability benefits.



1. Whether the accident of November 27, 2011, was the prevailing factor in causing any or all of the injuries and/or conditions alleged in evidence;

2. The liability, if any, of Employer for permanent partial disability benefits;

3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits; and

4. The liability, if any, of Employer for future medical benefits.




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1. That the Missouri Division of Workers' Compensation has jurisdiction over the hearing

and adjudication of the claim;

2. That venue for the hearing is proper in Callaway County and adjoining counties, including Boone County;

3. That the claim for compensation was filed within the time allowed by the statute of limitations, §287.430;


5. That Employee, Lisa Deardorff, sustained an accident arising out of and in the course of her employment with the Fulton State Hospital on November 27, 2011;



8. That Fulton State Hospital was an authorized self insured for Missouri Workers' Compensation purposes at all relevant times; and

9. That Employer paid $568.70 in medical benefits and $1354.04 in temporary total disability benefits.



1. Whether the accident of September 4, 2013, was the prevailing factor in causing any or all of the injuries and/or conditions alleged in the evidence;

2. The liability, if any, of Employer for permanent partial disability benefits or permanent total disability benefits;

3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits;

4. The liability, if any, of Employer for future medical benefits; and

5. Whether additional benefits may be allowed for disfigurement.


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1. That the Missouri Division of Workers' Compensation has jurisdiction over the hearing and adjudication of the claim;

2. That venue for the hearing is proper in Callaway County and adjoining counties,

including Boone County;

3. That the claim for compensation was filed within the time allowed by the statute of limitations, §287.430;


5. That Employee, Lisa Deardorff, sustained an accident arising out of and in the course of her employment with the Fulton State Hospital on September 4, 2013;



8. That Fulton State Hospital was an authorized self insured for Missouri Workers' Compensation purposes at all relevant times;

9. That Employer paid $96,389.31 in medical benefits and $19,958.14 in temporary total disability benefits;

10. That Claimant reached maximum medical improvement on January 18, 2015.

EVIDENCE The evidence consisted of the testimony of Claimant, Lisa Jane Deardorff, as well as deposition testimony of Claimant; extensive medical records; narrative report of Dr. David T. Volarich; the narrative reports of Dr. Michael Snyder; the deposition testimony and narrative reports of Dr. A. E. Daniel; the narrative report and deposition testimony of Kristine Skahan, a vocational consultant; narrative reports of Dr. Andrew Wayne; the narrative report and deposition testimony of Benjamin Hughes, a vocational rehabilitation counselor; narrative report of Dr. Glen Johnson; narrative reports and deposition testimony of Dr. Jennifer Brockman; neuropsychological evaluation report of Michael Oliveri, PhD; physical therapy records; photographs; contingent fee agreement; Van Camp Law Firm expense records.


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DISCUSSION Lisa Deardorff (“Claimant”) was born on November 14, 1962, has an eleventh grade education, and no G.E.D. She had no certifications or formal training after high school. Claimant was employed at Fulton State Hospital from September 2004 through 2013. Claimant has not worked since leaving Fulton State Hospital. Claimant sustained three admitted accidents while employed at Fulton State Hospital; all three of these accidents were the subject of the December 21, 2016 evidentiary hearing. The first such accident occurred on October 10, 2011 (Injury No. 11-087035). On that day, Claimant slipped on a wet bathroom floor, twisting her low back and left knee. She had difficulty getting up and needed the assistance of co-workers. She reported the incident but essentially had no medical treatment for this injury. She did not miss any work due to this injury, but did have ongoing swelling in the left knee and back pain with certain sitting and bending positions. The back pain essentially resolved. Claimant testified that the knee pain got “85% better, but still caused problems.”

The second accident occurred on November 27, 2011 (Injury No. 11- 096226). On that date, Claimant was trapped by a client and slammed into a granite wall. This caused immediate pain in the low back. Claimant treated with Dr. Elliott, who simply told her to “sit on a jacket while at work” to alleviate the pain. Claimant went to about 3 to 4 sessions of physical therapy, which did not help. She then saw Dr. Noble on her own and had epidural steroid injections in her low back. She testified that these helped her back pain and lead to “big improvement,” allowing her to do all her normal daily activities. Claimant continued to have pain in the back if she bent a certain way or if she did any heavy lifting. She did home exercises which helped. Although Claimant didn’t give up any activities, she did have pain when sitting for long periods of time, and pain if she did not take over-the-counter pain medications. The third and final accident occurred on September 4, 2013 (Injury No. 13-064364). Claimant was sitting in a hallway with another staff member, looking after a patient in her room in a “2 to 1.” (A “2 to 1” is mandated when a patient’s behavior is such that two staff members are needed to control the patient at all times.) While Claimant was sitting in the hallway, another patient walked towards Claimant, called Claimant’s name, and struck Claimant in the head. He continued to hit Claimant and pushed her into the bedroom where he followed. He continued to repeatedly hit, kick, and stomp on Claimant, who had become trapped between the bed and the wall. Claimant’s co-workers were finally able to restrain her attacker. Claimant was bleeding from her face and was having trouble breathing. Claimant immediately reported the accident, and was mandated to drive herself to the hospital. Claimant got lost on her way to the hospital and had to call her sister for help. The emergency room physician noted Claimant had been punched and kicked in the face, neck, back, right shoulder, arm, knees, and left elbow. X-rays of Claimant’s knees and chest were read as showing no fracture. Claimant was diagnosed with a nasal fracture and concussion. On September 5, 2013, a right knee MRI revealed a focal tear of the posterior horn of the medial meniscus and osteoarthritic changes.


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Dr. Lyndon Gross examined Claimant on 9/9/13 and noted the assault and a fall onto both knees. Dr. Gross reviewed the MRIs and diagnosed degenerative changes, injected her knees, and recommended physical therapy and medications.

Dr. C. David Chang examined Claimant on 9/12/13 for her nasal fracture and blurred

vision. A CT scan was noted to reveal no significant fractures. Claimant was diagnosed with a nasal contusion and placed her at maximum medical improvement for her nose.

Dr. Michael Snyder performed an IME on 9/19/13 and noted the assault and numbness

and tingling to Claimant’s left hand and small finger, increased low back pain that radiated to her right buttock, and pain in her knees and shoulders. Dr. Snyder diagnosed a right knee acute fracture, a left knee meniscal tear, left C5 radiculopathy, and exacerbation of low back pain.

Dr. Gross re-evaluated Claimant on September 30, 2013, and noted ongoing pain in her posterior right shoulder and left arm, but improvement in her knee pain after the injections. X-rays of her right shoulder were obtained and read to show osteoarthritis at the AC joint and a type II acromion. Dr. Gross diagnosed scapulothoracic bursitis and recommended medications and physical therapy.

Dr. A. E. Daniel diagnosed an anxiety disorder on October 3, 2013. Dr. Bernard Randolph evaluated Claimant and noted her injury and treatment to date, and

ongoing pain in her left forearm to her hand, pain in her low back to her thigh, neck, shoulders, and thoracic spine. Dr. Randolph diagnosed myofascial injuries of her axial spine and shoulder girdle, and recommended physical therapy, and ordered an EMG/NCS of her left upper extremity and an MRI of her cervical spine.

Dr. Gross noted improvement in Claimant’s right shoulder but ongoing pain in both

knees on 10/21/13, and diagnosed an exacerbation of her osteoarthritis in her knees and recommended continued conservative treatment.

An MRI of her cervical spine obtained on November 5, 2013, revealed a small central

disc protrusion at C4-5 with cord impingement, and right posterior disc protrusion at C5-6 without impingement.

Dr. Randolph performed an EMG/NCS of Claimant’s left upper extremity on November

5, 2013, and interpreted it to be consistent with a left ulnar neuropathy but no radiculopathy, plexopathy, or neuropathy. Dr. Randolph noted Cymbalta was not tolerated, stopped physical therapy and continued restrictions. Dr. Gross recommended trigger point injections for the right shoulder along the medial scapular border on November 11, 2013, and Dr. Helen Blake administered the injections.

Dr. Glen Johnson examined Claimant for a second opinion regarding her knees on

November 15, 2013, and noted left more than right knee pain with severe bilateral medial degenerative joint disease worse on the left. Dr. Randolph noted gabapentin helped her neuropathic symptoms on November 26, 2013, but also noted increased sensitivity of her left ulnar nerve and ongoing pain at the base of her neck into her shoulders. Dr. Randolph diagnosed


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shoulder, cervical and thoracic spine strains and a left elbow ulnar nerve contusion, and continued physical therapy and restrictions.

Dr. Gross noted some improvement in Claimant’s knees and right shoulder on December

10, 2013, and continued medications and restrictions for her knees. A psychological evaluation on December 19, 2013, recommended ongoing treatment. Dr. Randolph noted improvement in her spine symptoms on December 27, 2013, but ongoing numbness in her left hand and ordered a repeat EMG/NCS. Dr. Gross noted some ongoing pain in her knees and right shoulder on January 14, 2014, but released Claimant with no restrictions.

Dr. Randolph performed a repeat EMG/NCS of Claimant’s left upper extremity on

January 17, 2014, and interpreted it to be consistent with a mild left ulnar neuropathy. Dr. Randolph continued Gabapentin, but released her to work full duty. Dr. Gross placed her at maximum medical improvement for her shoulder and left knee on February 10, 2014. Dr. Randolph noted ongoing weakness in Claimant’s left forearm and hand on March 7, 2014, and recommended a second opinion by a hand specialist, but placed her at maximum medical improvement for her spine.

Dr. Mitchell Rotman evaluated Claimant’s left arm and hand on April 8, 2014, and noted

her injury and persistent numbness and tingling. Dr. Rotman diagnosed myofascial discomfort and did not recommend additional treatment or restrictions. Dr. Rotman re-evaluated her on May 20, 2014, and recommended a repeat EMG/NCS.

Dr. Snyder re-evaluated Claimant on June 25, 2014, and noted low back pain that radiated

to both lower extremities to her ankles, left worse than right, pain and catching in her left knee, pain in her right knee, and persistent numbness and tingling in her left arm and hand. Dr. Snyder diagnosed bilateral lumbar radiculopathy and ordered an MRI, also diagnosed a right knee healed lateral tibial plateau fracture and osteoarthritis exacerbated by the assault, and a left knee meniscal tear with exacerbation of her osteoarthritis, and recommended surgery.

Dr. Randolph performed another EMG/NCS of Claimant’s left upper extremity on July 1,

2014, and interpreted it to be consistent with left ulnar neuropathy with reduced motor function but similar sensory function. Dr. Rotman reviewed the study on July 1, 2014, and recommended surgery.

The MRI of Claimant’s lumbar spine obtained on July 2, 2014, revealed facet arthropathy

at L4-5. Dr. Snyder reviewed the study on July 9, 2014, and recommended pain management for her back, but recommended surgery for her left knee.

On August 22, 2014, Dr. Snyder took Claimant to surgery and performed a left knee

arthroscopic partial medial and lateral meniscectomy, debridement, and chondroplasty of the patellofemoral joint, and a lateral release. Postoperatively, Dr. Snyder noted improvement and released her with no restrictions on September 22, 2014.


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Dr. James Doll evaluated Claimant’s lumbar spine on October 21, 2014, and diagnosed mechanical low back pain with spondylosis and S1 joint degenerative joint disease and placed her at maximum medical improvement.

Dr. Snyder noted some ongoing crepitus with movement on October 29, 2014, and

diagnosed mild synovitis and injected her left knee. On November 26, 2014, Dr. Rotman took Claimant to surgery and performed a left ulnar

nerve transposition and flexor pronator lengthening. Postoperatively Dr. Rotman noted improvement and recommended a course of physical therapy and gradually relaxing restrictions.

Dr. A. E. Daniel performed another psychiatric evaluation on January 14, 2015, and

diagnosed an anxiety disorder, major depression, and possible PTSD, and opined Claimant was permanently and totally disabled.

Dr. Rotman noted improvement in Claimant’s left arm on January 8, 2015, and released

her with no restrictions, and on February 2, 2015, noted less numbness in her left hand and placed her at maximum medical improvement. Claimant returned to Dr. Rotman on March 17, 2015, after she dropped a 5-pound feed bucket. Dr. Rotman did not recommend additional treatment or restrictions, and continued her at maximum medical improvement. Dr. Rotman rated Claimant’s permanent partial disability at 5% of the left elbow. Dr. Rotman noted that Claimant still had some numbness in the ulnar nerve distribution along with complaints in the medial forearm, reduced grip strength and soreness over the transposed nerve.

At the request of her attorney, Claimant was evaluated by Dr. David Volarich on August 26, 2015. He made the following diagnoses:

As it relates to the October 10, 2011 accident (Injury No. 11-087035), lumbosacral strain/sprain and left knee strain/sprain, and provided a rating of 5% of the body as a whole referable to the back and 5% of the left knee. As it relates to the November 27, 2011 accident (Injury No. 11-096226), he diagnosed Claimant with severe lumbar contusion and sprain/strain with myofascial pain. He provided a rating of 15% of the body as a whole referable to the lumbar spine. As it relates to the September 4, 2013 accident (Injury No. 13-064364), he diagnosed Claimant with blunt trauma to the face causing concussion with post-concussion syndrome, including headaches, dizziness, and nasal fracture along with nerve neuritis, aggravation of lumbar syndrome with L4-5 degenerative disc disease and disc bulging causing intermittent left leg radiculopathy, cervical left arm radiculopathy from disc extrusion at C4-5 and protrusion C5-6, right knee lateral tibial plateau fracture, left knee internal derangement – status post arthroscopic partial medial and lateral meniscectomies, left elbow ulnar neuropathy – status post ulnar nerve transposition, and right scapulothoracic bursitis. He provided ratings of 15% of the body as a whole referable to the head, 25% of the body as a whole referable to the neck, 20% of the body as a whole referable to the lumbar spine, 20% of the right knee, 35% of the left knee, 35% of the left elbow, and 20% of the right shoulder. Dr. Volarich found that Claimant had


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conditions that preexisted the injury of October 10, 2011, those being internal derangement of the left knee – status post 2004 arthroscopic retropatellar debridement and debridement of the medial femoral condyle and lateral release. Dr. Volarich also found prior right knee internal derangement – status post 2003 arthroscopic medial and lateral meniscectomies, excision of loose bodies, three compartment chondroplasty with synovectomy and excision of plica, plus two additional right knee surgeries in 2005 and 2010. He provided a rating of 40% of the right knee and did not rate the left knee. Dr. Volarich also believed there was disability associated with psychiatric issues but referred to psychiatry for that assessment. It was Dr. Volarich’s opinion that Claimant was unable to engage in any substantial gainful employment and that she was permanently and totally disabled as a result of all three of her work injuries in combination with her preexisting medical conditions.

Claimant was evaluated by psychiatrist Dr. A. E. Daniel on October 3 and October 10, 2013. Claimant told Dr. Daniel that she was experiencing intrusive thoughts and images of the patient who assaulted her in September 2013, but that those images were no longer present except for when she had to go to doctors’ appointments or communicate with her employer. She reported restless sleep, depression, sadness, and feeling easily angered. Dr. Daniel noted that Claimant spoke with someone at the Employee Assistance Program once following her injury but did not consult a psychiatrist. Claimant also told Dr. Daniel that she was prescribed Xanax in 1990 for depression and anxiety after her divorce and that she did not continue with the medication for more than three months. Claimant advised Dr. Daniel that she was also prescribed Wellbutrin for smoking cessation about three years ago and it was not helpful. Dr. Daniel’s diagnoses were anxiety, depression, and anxious affect, and fear of getting hurt, with no suicidal ideations or psychotic symptoms. Dr. Daniel administered the MMPI. He was of the opinion that the injury of November 27, 2011 did not produce any discernable psychiatric symptoms, but such an injury probably laid the foundation for future anxiety disorder and potentially for the development of post-traumatic stress disorder (“PTSD”). He noted that Claimant did not develop the full criteria for PTSD, but the “likelihood of development of such a disorder was high if she does not receive proper psychiatric treatment” and, that to date, she had not received proper psychiatric treatment. Dr. Daniel also noted that Claimant did not have any preexisting psychiatric disorders although she had mild depression in the 1980’s. He concluded that the psychological injury was caused by the injury of September 4, 2013 and it was the prevailing factor in leading to Claimant’s diagnoses and symptoms. He indicated that Claimant was not at maximum medical improvement and that she required systematic psychiatric treatment to cure and relieve her of the effects of her condition. He recommended psychotherapy and medication management. He indicated she had significant limitations with poor concentration, depressed mood, anxiety, and some post-traumatic symptoms which would affect her persistence and pace at work.

On November 14, 2013, Dr. Jennifer Brockman performed an independent psychiatric medical evaluation. Dr. Brockman noted Claimant’s steady work history and medical history, which indicated that Claimant saw a therapist a few months after a separation from her ex-husband years ago and that she took Xanax for a brief period during that divorce. Claimant had no further psychiatric treatment in her past. Dr. Brockman did indicate that Claimant was


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“socially isolated beyond her contact with several family members.” Dr. Brockman noted that Claimant also indicated that she had difficulties with activities of daily living and that her thinking patterns included guilt, anger, and disappointment. Dr. Brockman summarized medical records and diagnosed Claimant with mood disorder not otherwise specified and indicated that it was necessary to rule out acute stress disorder versus PTSD. Dr. Brockman also indicated there was a need to rule out a personality disorder.

Dr. Brockman felt that Claimant had symptoms of depression and possible PTSD. She indicated that Claimant’s primary emotion was anger and that she was frustrated, guarded, and hopeless when thinking of her future and that she was invested in blaming others for her situation and was resistant to change. Dr. Brockman felt that Claimant’s psychiatric symptoms would prevent her from completing the essential functions of her job and that she needed to be off work pending further treatment. Dr. Brockman recommended regular psychotherapy sessions and medication management. She indicated that Claimant’s prognosis was “fair to poor.” On February 6, 2014, Dr. Brockman wrote a letter noting that she had reviewed some records from Ms. Fliss along with Dr. Katherine Browning and that at that time Claimant was still unable to work due to her psychiatric condition. On April 6, 2014, Dr. Brockman saw Claimant again, noting that Claimant had been involved in psychiatric services at the Arthur Center and that Claimant had treated with both Dr. Browning and Ms. Fliss. Dr. Brockman summarized the medical records, including therapy notes indicating that Claimant was still suffering from anxiety and depression and that she was not yet at maximum medical improvement. Dr. Brockman felt that at this visit that Claimant was calm and collected but did become emotional and tearful during the interview. Dr. Brockman noted that Claimant spoke highly of her visits with Ms. Fliss and Dr. Browning and indicated that some of her symptoms had improved though she was still experiencing dizziness, was sleeping 10 to 11 hours a day, lacked motivation, was feeling as if she was unable to work, and had feelings of guilt. Claimant continued to have a negative outlook on the future and was continuing to have frustration and anxiety regarding what was going to happen next in her life. Dr. Brockman at that time felt Claimant was experiencing some improvement but that she needed an increase in her Lexapro. She felt that Claimant should continue to be off work at that time.

Dr. Brockman saw Claimant on June 23, 2014, and noted that Claimant had continued to treat with Ms. Fliss and Dr. Browning. At the time of this visit, Claimant expressed frustration because she did not have a psychiatric medication management visit since the time of her last visit with Dr. Brockman. Claimant was frustrated because those visits had been cancelled although she had continued to attend psychotherapy. Dr. Brockman indicated that Claimant became tearful in the session, experiencing stress since the last meeting, especially when it came to her finances. She was also overwhelmed with physical limitations preventing her from being able to do household chores and frustration regarding the lack of treatment she had received for her physical condition, noting that there was a court finding in February and that she was “only now preparing to receive treatment for her conditions.” This made Claimant angry and resentful towards the workers’ compensation system. Claimant explained how she was supposed to receive an increase in her Lexapro but this was never entered into the computer system and she ran out of medication in between appointments. She expressed feeling profoundly depressed at the time of the interview, with increased anger and great difficulty with activities of daily living. She also had extreme symptoms of anxiety, and she was unable to leave her home and was having panic


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symptoms with ongoing feelings of guilt, decreased concentration, and poor frustration tolerance. Dr. Brockman felt further medication management was in order and recommended additional medications. Dr. Brockman indicated that little progress had been made since Claimant’s visit in April 2014.

Dr. Brockman saw Claimant again on August 18, 2014. At that time, Claimant expressed ongoing stressors, including financial difficulties, grief, and loss regarding her son-in-law, concern for her daughter, and continued conflict with her family along with the possibility of moving in with her niece as she needed help with daily activities. She talked about trying different medications which resulted in adverse side effects. She indicated that she felt the Lexapro helped. Claimant discussed her difficulty with memory and that she needed a map to get to a location even though she had been there multiple times. She was continuing to sleep 10 to 12 hours a day and was concerned about her concentration and mental functioning. She was also concerned about the side effects of Gabapentin and other medications she was taking for her physical complaints. She discussed her feelings of apathy and worthlessness, noting that she was unable to keep her house clean and that she had difficulty cooking and that she had a problem with grease that burned her while she was at the stove. She also said she would fall asleep even after putting food in the oven. She expressed ongoing irritability. When asked about suicide, Claimant indicated, “There would be no more pain. If I can’t function what is there to live for.” She denied having any plan, but said “I can understand how people do it though.” She expressed ongoing frustration about her current situation, particularly the workers’ compensation process. Dr. Brockman acknowledged that Claimant was continuing to exhibit psychiatric symptoms of depression similar to those discussed at the time of the first session. She noted that Claimant had some improvement in some areas but was clinically stagnated in others. Dr. Brockman indicated that future improvement was possible but not likely and that little, if any, positive change had occurred despite ongoing treatment. Dr. Brockman stated that Claimant had feelings of anger regarding her employer and the workers’ compensation process and the frustration was dominating the sessions.

Also on August 18, 2014, despite Claimant’s ongoing symptoms and little improvement, Dr. Brockman found Claimant to be at maximum medical improvement regarding her psychiatric symptoms related to the injury of September 2013. Dr. Brockman thought Claimant should continue to treat on her own on a regular basis and that Claimant’s need for additional mental health treatment was not related to her work injury, despite having previously opined that there was no preexisting psychiatric condition. Dr. Brockman concluded that Claimant was not ever diagnosed with PTSD and did not meet the necessary criteria for a formal diagnosis. Dr. Brockman stated that a diagnosis of PTSD should continue to be considered by Claimant’s treatment providers. Dr. Brockman encouraged Claimant to engage in positive activities and some kind of work. Dr. Brockman noted vague cognitive symptoms and difficulty with finances. Dr. Brockman also noted ongoing symptoms of dizziness and recommended that Claimant see an ENT specialist. Dr. Brockman assessed a 10% permanent partial disability rating as it related to the psychiatric aspect of the September 4, 2013 injury. Dr. Brockman felt that the combination of Claimant’s disabilities created a greater disability than the simple sum, but did not specify what other disability she was referring to. She felt that psychosocial stressors, co-morbid medical problems, baseline personality traits, coping strategies, and work place attitudes were the prevailing factors in Claimant’s development of her current psychiatric symptoms and need for


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treatment. She felt that Claimant was able to work and thought she may benefit from participation in vocational rehabilitation. She felt that Claimant needed ongoing treatment and psychiatric medication. On October 13, 2014, Claimant was evaluated by Dr. Michael Oliveri who conducted a neuropsychological evaluation. At the time he saw her, Claimant was taking Gabapentin, Hydroxyzine, and Lexapro, was continuing to have neck and low back pain, and difficulties with her eye. She was sleeping a lot, was easily agitated and anger prone, had sensitivity to loud noise, persistent headaches, diminished short term memory, difficulty with word finding, and confusion. He administered several tests and noted that her recognition memory for digit sequences was atypical and that she was performing below neurological reference groups reflecting a non-credible level of performance. He found her non-verbal visual conception skills to be average, processing speed to be normal, and visual spatial memory below normal. He found her to be in the low normal range in visual conception tracking, with normal visual confrontation and normal visual spatial judgment. On a memory questionnaire, Dr. Oliveri noted subjective pain interfering with memory and memory interfering with work-related activities. He also found there to be some somatoform coping problems, with problematic validity in many tasks. He felt that she performed poorly on measures that patients with established residual brain dysfunction perform well on. He suspected non-injury factors, including mood and motivational confounds as well as pain to be contributing to her cognitive and symptom perception. He diagnosed Claimant with somatoform coping and somatoform disorder and no valid representation of residual acquired neurocognitive disorder. He did not feel that the test results supported a brain behavior dysfunction and that there were no neurocognitive restrictions. He felt Claimant was at MMI but said: “If more could be done with pain issues I would anticipate concomitant improvement in her subjective cognitive complaints.” Claimant was seen for counseling with Marta Fliss beginning in January 2014. Ms. Fliss noted that Claimant was suffering from explosive anger, excessive sleep, depression, insomnia, hopelessness, worthlessness, relationship problems, and that she is a victim of trauma. She indicated that Claimant would often sleep the entire day and there were days where she did not get out of bed at all. Ms. Fliss noted that Claimant was suffering from decreased energy, difficulty concentrating, depressed mood, tearfulness, and physical pain. Claimant stated to Ms. Fliss that she would move from the couch to the bed and did little else other than going to physical therapy, that she was behind in her housework, that there was a decline in her grooming and hygiene habits, and difficulties managing her anger, indicating that her sister was no longer speaking to her because Claimant would frequently yell. Ms. Fliss’ notes indicate that Claimant was having panic attacks, insomnia, that she was tearful and frustrated, and was indicating that nobody was helping her deal with her injury. Ms. Fliss indicated that Claimant was hostile, agitated, defensive, and guarded. In January 2014, Claimant told Ms. Fliss that the Lexapro was working and that she was feeling less irritable and depressed, but she had a lot of anxiety because work comp had stopped paying her and she had no income. Ms. Fliss’ notes from February 2014 indicate that Claimant had difficulty going to the store so she was going to Wal-Mart at night to avoid people.


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In February 2014, Dr. Browning indicates that Claimant saw a video of her assault during a court hearing which triggered an intense emotion and memories of the incident. Claimant also stated that she is finally able to turn the lights off in her house for the first time. Dr. Browning continued to prescribe Lexapro and Hydroxyzine. In October 2014, notes from Ms. Fliss indicated that Claimant was still suffering from anxiety, extreme anger, and that she was blaming people and thinking “of everyone as being a bad person.” Ms. Fliss gave Claimant a score of 69 (on an 85 scale) for PTSD symptoms and a score of 46 for depression falling in the severe category. Notes indicate that Claimant was struggling in accepting the workers’ compensation situation as people representing workers’ compensation “don’t believe she is actually in pain and can’t function.” She expressed a great amount of anger, a desire to be fixed, and that she was extremely upset with the medical care system and workers’ compensation. In November 2014, Dr. Browning noted Claimant’s difficulty in accessing healthcare and occupational programs due to the fact that Claimant had pain related to her on-the-job attack and delays in receiving her medical and psychiatric treatment, which was adding to her stress. Dr. Browning also noted that Claimant had been dismissed from her job after nine years due to her inability to work.

Dr. Daniel saw Claimant again on January 14, 2015, and at that time he reviewed the records of Dr. Brockman, Dr. Browning, Ms. Fliss, and Dr. Oliveri. At the time he saw her, Claimant was taking Gabapentin, Celexa, and Hydroxyzine which Claimant felt were beneficial in helping her to be able to leave the house, have fewer headaches, and less chest pain and depression, and anxiety. Dr. Daniel noted that treatment by Employer was stopped in December 2014, but that Claimant was continuing to see Dr. Browning on her own but had not applied for any jobs. Dr. Daniel concluded that Claimant was at maximum medical improvement; however, her symptoms continued to persist and her treatment was stopped abruptly causing decompensation. Dr. Daniel opined that the prevailing factor in the diagnosed disorder was the work injury of September 4, 2013. He believed that Claimant had a permanent disability rating of 30% of the body as a whole and that she was not capable of being employed in the open labor market and that she was permanently and totally disabled as a result of the last injury. He recommended ongoing psychiatric treatment. Issues in Injury No. 11-087035. Dr. Andrew Wayne and Dr. David Volarich agree that Claimant sustained a left knee sprain and a low back sprain in the October 10, 2011 accident. Therefore, I find that the October 10, 2011 work accident is the prevailing factor in the cause of a left knee sprain and a low back sprain. Drs. Wayne and Volarich both point out that Claimant had significant preexisting disability in the left knee, and that the 10/10/2011 left knee sprain caused some minor permanent pain in the left knee above and beyond the significant preexisting disability. Dr. Wayne opined that Claimant sustained a permanent partial disability of 2% of the left knee; Dr. Volarich opined that Claimant sustained a permanent partial disability of 5% of the left knee.


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Regarding the low back, Dr. Wayne opined that Claimant sustained a permanent partial disability of 1% of the body as a whole for “persistent mechanical lower back pain”; Dr. Volarich opined that Claimant sustained a permanent partial disability of 5% of the body as a whole. I find that, as a result of the October 10, 2011 work accident, Claimant has sustained a permanent partial disability of 3% of the left knee (4.8 weeks) and 2.5% of the body as a whole (10 weeks). This results in 14.8 weeks of compensation at the stipulated rate of $393.70, totaling $5,826.76. Dr. Wayne stated that Claimant was at maximum medical improvement for the October 10, 2011 injuries and that no future medical care is reasonably required. Dr. Volarich also stated that Claimant was at maximum medical improvement for the October 10, 2011 injuries. Although Dr. Volarich does recommend additional medical care in the form of medications and physical therapy, my reading of Dr. Volarich’s report is that such additional treatment recommendations are for the September 4, 2013 accident-related injuries, and thus no award of future medical benefits is made in Injury No. 11-087035. Regarding the claim against the Second Injury Fund in Injury No. 11-087035 for permanent partial disability benefits, Dr. Volarich notes that Claimant had a preexisting permanent partial disability of 40% of the right knee and had surgery on her right knee in 2002, 2005 and 2010. The only evidence of a synergistic effect is Dr. Volarich’s statement: “(t) combination of her disabilities creates a substantially greater disability that the simple sum or total of each separate injury/illness, and a loading factor should be added.” This is insufficient evidence of “synergistic effect”. See Winingear v. Treasurer, 474 S.W.3d 203 (Mo. App. W.D. 2015). The claim against the Second Injury Fund in Injury No. 11-087035 is denied. Issues in Injury No. 11-096226. Dr. Wayne and Volarich agree that Claimant sustained a lumbar strain in the November 27, 2011 accident. While they disagree as to the severity of that lumbar strain, they are in agreement that same occurred, and therefore I find that the November 27, 2011 work accident is the prevailing factor in the cause of a lumbar strain. Dr. Volarich opined that Claimant sustained a permanent partial disability of 15% of the body as a whole as a result of the November 27, 2011 lumbar spine inury. Dr. Wayne found that Claimant sustained a permanent partial disability of 1% of the body as a whole. (Dr. Wayne’s reports of December 15, 2011 and August 29, 2013 appear to opine that Claimant sustained a 1% body as a whole disability as a result of the combination of the October 10, 2011 accident and the November 27, 2011 accident.) Considering Claimant’s extensive treatment after the November 27, 2011 injury, I find that Claimant sustained a permanent partial disability of 7.5% of the body as a whole. This results in 30 weeks of compensation at the stipulated rate of $379.13, totaling $11,373.90. As noted above, Dr. Volarich’s additional treatment recommendations appear to be for the September 4, 2013 accident-related injuries only, and thus no award of future medical benefits will made in Injury No. 11-096226. Also as noted above, there is insufficient evidence of a “synergistic effect” for Second Injury Fund liability for permanent partial disability benefits, and therefore the claim against the Second Injury Fund in Injury No. 11-096226 is denied.


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ISSUES RELATED TO INJURY NO. 13-064364 Injury No. 13-064364: Medical causation (physical injuries). Nasal fracture: although Claimant was not treated for same, there is no question that Claimant sustained a nasal fracture in the September 4, 2013 accident. I find that the September 4, 2013 work accident is the prevailing factor in the cause of Claimant’s nasal fracture. Bilateral knees: all physicians agree that Claimant sustained traumatic contusions to both knees. There is no dispute that the September 4, 2013 accident caused a non-displaced tibial plateau fracture of the right knee which did not require surgery. Administrative Law Judge Hannelore Fischer conducted a hardship hearing in this case and found that the September 4, 2013 accident was the prevailing factor in the cause of a left knee meniscus tear, and ordered surgery. In so finding, Judge Fischer accepted the opinion of Dr. Michael Snyder as to the cause of the meniscus tear. I agree that the greater weight of the evidence demonstrates that the September 4, 2013 accident was the prevailing factor in the cause of Claimant’s left knee meniscus tear. I find that the September 4, 2013 work accident is the prevailing factor in the cause of Claimant’s right knee tibial plateau fracture and the left knee meniscus tear. Left upper extremity. On December 13, 2013, Dr. Bernard Randolph stated: “(Claimant) has some numbness which persists in the ulnar nerve distribution. Earlier diagnostics revealed findings consistent with an ulnar neuropathy likely caused by the contusion at the time of her accident.” On March 7, 2014, Dr. Randolph discussed the continued symptoms in the left ulnar nerve distribution, and stated: “(g)iven the length of time since her injury, I recommend a second opinion from a hand surgeon.” Claimant was referred to Dr. Mitchell Rotman, an upper extremity surgeon. After ruling out any cervical spine abnormalities as the cause of the symptoms, Dr. Rotman performed left ulnar nerve transposition surgery on November 26, 2014. (Dr. Rotman was apparently not asked to opine on causation of the left ulnar neuropathy.) Dr. Volarich was of the opinion that the September 4, 2013 accident was the prevailing factor in the cause of left elbow ulnar neuropathy. I find that the September 4, 2013 accident was the prevailing factor in the cause of left elbow ulnar neuropathy and need for ulnar nerve transposition surgery. Low back/lumbar spine. Claimant has degenerative problems in her lumbar spine. She had at least two prior lumbar spine injuries (i.e., the October 10, 2011 injury and the November 27, 2011 injury). Dr. Wayne, Dr. Doll and Dr. Snyder all agree that Claimant sustained a sprain or strain to the low back in the September 4, 2013 accident; they also appear to agree that this sprain or strain aggravated or exacerbated the underlying degenerative problems. Dr. Volarich opined that the September 4, 2013 accident also caused an L4-5 disc bulge with left leg radiculopathy. The medical evidence would suggest that the L4-5 disc bulge is degenerative and not traumatically induced. Claimant has not had surgery on her low back and no one is recommending same. I find that the September 4, 2013 accident is the prevailing factor in the cause of a low back sprain with aggravation of preexisting degenerative spine condition. Cervical spine. A CT of Claimant’s cervical spine after the September 4, 2013 injury showed no acute findings but did show mild spondylosis. Claimant testified that she has shooting pain down her neck on the left side and into her left arm. Nerve conduction studies were negative for


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cervical radiculopathy. The cervical MRI evidenced a central disc protrusion at C4-5 and a right-sided protrusion at C5-6, but nothing on the left side. Dr. Volarich’s opinion that the work accident of 9/4/2013 was the prevailing factor in the cause of “cervical left arm C5 radiculopathy” is quite simply not borne out by the extensive objective testing. I find that the work accident of 9/4/2013 was the prevailing factor in the cause of a cervical sprain only. Right scapulothoracic bursitis. Dr. Volarich diagnosed Claimant with “right scapulothoracic bursitis.” In the “CONCLUSIONS/CAUSATION” portion of his report, Dr. Volarich states that it is his opinion that the 9/4/2013 accident was the prevailing factor in the cause of all of the alleged injuries and/or conditions except the right scapulothoracic bursitis. The last sentence of the “CONCLUSIONS/CAUSATION” portion of Dr. Volarich’s report, he simply states: “(s)he was also diagnosed and treated for scapulothoracic bursitis of the right shoulder blade.” I find that there is insufficient evidence that the September 4, 2013 accident was the prevailing factor in the cause of right scapulothoracic bursitis. Closed head trauma, concussion, post-concussion syndrome. Dr. Volarich opined that the September 4, 2013 accident was the prevailing factor in the cause of “closed head trauma, nasal fracture and concussion with post-concussion syndrome.” Claimant testified that she has memory loss, confusion, and problems with concentration. She also testified that she has headaches which she did not have before the 9/4/2013 accident. Regarding the alleged memory loss, confusion, and concentration problems, it is certainly possible that same could be caused by post-concussion syndrome, or by psychiatric problems (or both). Despite extensive testing for neurological problems due to post-concussion syndrome or traumatic brain injury, there is no objective evidence of same. Therefore, while I find that the September 4, 2013 accident was the prevailing factor in the cause of closed head trauma and concussion, resulting in headaches, I find that the September 4, 2013 accident was not the prevailing factor in the cause of post-concussion syndrome or traumatic brain injury. Injury No. 13-064364: Medical causation (psychiatric conditions). Employer initially refused to provide Claimant with psychiatric evaluation or treatment. After Claimant obtained her own psychiatric evaluation from Dr. Daniel, Employer eventually provided evaluation and treatment with Dr. Brockman, Dr. Browning, and Marta Fliss. It is abundantly and indisputably clear that Claimant has significant psychiatric deficits. There is no credible evidence that Claimant had any psychiatric problems prior to the September 4, 2013 accident. Dr. Brockman’s final conclusions regarding causation (which appear to be diametrically opposed to her initial assessment) simply are at odds with the remaining evidence. There simply seems to be no logical reason for her reversal of opinion. Dr. Daniel’s opinions regarding the cause of Claimant’s psychiatric conditions are clearly in line with the evidence in the case, and I find them to be persuasive. I find that the September 4, 2013 accident was the prevailing factor in the cause of depression, anxiety and symptoms of post-traumatic stress disorder (“PTSD”).

Injury No. 13-064364: Disability Issues. Claimant alleges that she is permanently and totally disabled since the September 4, 2013 accident, and is seeking permanent total disability benefits from Employer or from the Second Injury Fund.


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Under section 287.020.7, “total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Fletcher v. Second Injury Fund, 922 S.W.2d 402, 404 (Mo.App. W.D.1996). The test for permanent and total disability is the worker’s ability to compete in the open labor market in that it measures the worker’s potential for returning to employment. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo.App. E.D. 2007). The primary inquiry is whether an employer can reasonably be expected to hire the claimant, given his present physical condition, and reasonably expect the claimant to successfully perform the work. Id. Second Injury Fund liability exists only if Employee suffers from a pre-existing permanent partial disability that constitutes a hindrance or obstacle to employment or re-employment, that combines with a compensable injury to create a disability greater than the simple sums of disabilities. § 287.220.1 RSMo 2000; Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576, (Mo.App.E.D. 1985). When such proof is made, the Second Injury Fund is liable only for the difference between the combined disability and the simple sum of the disabilities. Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo.App. 1990). In order to find permanent total disability against the Second Injury Fund, it is necessary that Employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with prior permanent partial disability(ies) to result in total disability. 287.220.1 RSMo 1994, Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo.App. 1990), Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576 (Mo.App. 1985). Where preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the employee for the permanent total disability after the employer has paid the compensation due the employee for the disability resulting from the work related injury. Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo.App. 1992) (emphasis added). In determining the extent of disability attributable to the employer and the Second Injury Fund, an Administrative Law Judge must determine the extent of the compensable injury first. Roller v. Treasurer of the State of Mo., 935 S.W.2d 739, 742-43 (Mo.App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Id. It is, therefore, necessary that the Employee’s last injury be closely evaluated and scrutinized to determine if it alone results in permanent total disability and not permanent partial disability, thereby alleviating any Second Injury Fund liability. At the request of her attorney, Claimant was evaluated by Kristine Skahan, a vocational consultant, on October 21, 2015. Ms. Skahan’s pertinent conclusions are as follows:

In conclusion, when considering all of the restrictions, as well as Ms. Deardorff’s worker profile, it is my opinion that she has a total loss to the open competitive labor market. I would opine that due to the severity of her physical restrictions, Ms. Deardorff would be unable to perform any of her past work which was rated as Light to Heavy in terms of the Dictionary of Occupational Titles. Therefore, she would be unable to perform the usual duties of any job for which she is qualified for, and would not be hired by and employer in the open competitive labor market in the normal course of business.


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When considering Mr. Deardorff’s age, sedentary capacity, testing scores, and restrictions, she would not qualify for funds for a retraining plan for sedentary work for a Missouri Vocational Rehabilitation plan. I have based these opinions on my firsthand knowledge of this worker obtained through this vocational assessment and evaluation, the medical opinions provided, and through my professional experience in the field of vocational rehabilitation.

It appears that the total vocational disability and loss of access to the open competitive labor market is due to a combination of her injuries on October 10, 2011, to her low back, left hip, left leg, left knee; November 27, 2011 injuries to her low back, both legs, groin, left arm, left hand; and September 4, 2013 injuries to her head, face, nose, left ear, right and left knees, right and left shoulders, back, neck, body as a whole. All of these injuries occurred while she was working as a Security Aide for the Fulton State Hospital.

At the request of Employer, Claimant was evaluated by Benjamin Hughes, a vocational rehabilitation counselor, on January 7, 2016. Mr. Hughes’ pertinent conclusions are as follows:

When observing the restrictions given by doctors Johnson, Gross, Randolph, Snyder, Doll, and Rotman, I see Ms. Deardorff being able to return to her previous work as a Security Aide. The same can be said regarding the lack of restrictions provided by doctors Brockman and Oliveri.

Considering Dr. Daniel and his second psychiatric evaluation, I conclude that Ms. Deardorff would be unemployable in the open labor market.

Assuming restrictions provided by Dr. Volarich, I see sedentary types of positions matching, according to the Dictionary of Occupational Titles (DOT). Matching vocations would be Security Alarm Monitor and Parking Lot Attendant.

During my evaluation of Ms. Deardorff, she stood on two occasions and held herself up using her hands and arms on the table-each lasted a few minutes and seemed to relieve her back pain. I also noted her walking with a slight limp after both meeting and ending our time. I found her complaints to be honest. With this in mind, I find Ms. Deardorff being employable in her previous position or at the Sedentary level. I believe in a case such as this, the trier of the fact will need to make a decision regarding the different physicians' restrictions. Provided that she is found to be disabled, it is my opinion this would clearly be to multiple injuries involving various body parts and not due to the last injury in isolation.

As noted above, Dr. Daniel opined that Claimant was not capable of being employed in the open labor market and that she was permanently and totally disabled as a result of the last injury. Also as noted above, Dr. Volarich opined that Claimant was unable to engage in any substantial gainful employment and that she was permanently and totally disabled as a result of all three of her work injuries in combination with her preexisting medical conditions.


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I find that Claimant is permanently and totally disabled. Claimant is 54 years of age, has an eleventh grade education with no GED or training, has two terrible knees, significant degeneration of the lumbar and cervical spine, is status post left ulnar nerve transposition surgery, has a history of closed head trauma with headaches, and has significant depression, anxiety and PTSD symptoms. Claimant has no ability to compete in the open labor market. The next question that must be answered is whether Claimant’s injuries and conditions resulting from the September 4, 2013 accident are sufficient to render Claimant permanently and totally disabled. Looking only at Claimant’s physical injuries from the September 4, 2013 accident, the answer is clearly “no”. When the psychiatric conditions caused by the September 4, 2013 accident are added into the mix, however, it is a much closer question. Dr. Daniel opined in his report that Claimant is permanently and totally disabled from the September 4, 2013 accident alone. However, in his deposition testimony, he clarified that opinion, as follows:

Q. But you do say that you found Ms. Deardorff to be permanently and totally disabled due to her last injury and in combination with her prior injury (sic). What do you mean by that? A. Well, what I mean by that is that the last injury was the main factor or major injury which caused her to be totally disabled, but you have to view that in context of a prior injury which resulted in physical limitations or physical conditions. So even though the first injury did not cause any psychiatric symptoms, the impact of the physical injury of the first time in combination with the second time, which caused psychiatric symptoms, cause her to be totally and permanently disabled. (Exhibit 3, page 40.)

While imperfectly stated, Dr. Daniel’s deposition testimony stands for the proposition that the 9-4-2013 accident, alone and of itself, did NOT cause Claimant’s total disability, but, rather that it is the combination of the 9-4-2013 accident, and all of the prior physical disabilities, that render Claimant permanently and totally disabled. I thus find that Dr. Daniel’s opinion on the cause of Claimant’s total disability is really no different than that of Dr. Volarich, Ms. Skahan or Mr. Hughes. I find, therefore, that the September 4, 2013 accident was not, in and of itself, the cause of Claimant’s total disability. I find that the September 4, 2013 accident resulted in permanent partial disability only. In that regard, I find that the September 4, 2013 accident resulted in the following disability:

• A 10% permanent partial disability of the right knee, due to tibial plateau fracture (16 weeks);

• A 15% permanent partial disability of the left knee, due to meniscus tear, surgically repaired (24 weeks);

• A 10% permanent partial disability of the left elbow, due to ulnar neuropathy (cubital tunnel syndrome), surgically repaired (21 weeks);

• A 10% permanent partial disability of the body as a whole at the lumbar spine, due to lumbar sprain (40 weeks);


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• A 5% permanent partial disability of the body as a whole at the cervical spine, due to cervical sprain (20 weeks);

• A 7.5% permanent partial disability of the body as a whole at the head, due to closed head trauma, concussion and nasal fracture resulting in headaches (30 weeks);

• A 30% permanent partial disability of the body as a whole due to depression, anxiety and symptoms of post-traumatic stress disorder (120 weeks).

Employer’s liability for payment of permanent partial disability benefits is $99,896.02 (271 weeks at the stipulated rate of $368.62). I further find that Claimant’s condition of permanent and total disability is caused by the injuries and condition due to the September 4, 2013 accident in combination with her physical disabilities that pre-existed the September 4, 2013 accident. Thus, the Second Injury Fund is liable for payment of permanent total disability benefits of $368.62 per week. As the parties have stipulated to a maximum medical improvement date of January 18, 2015, the Second Injury Fund’s liability begins on January 19, 2015, subject to a credit for Employer’s liability for permanent partial disability benefits. As the permanent partial disability benefit rate and the permanent total disability benefit rate are identical, the credit extends for a full 271 weeks, i.e., through March 29, 2020. The Second Injury Fund’s liability for weekly benefit payments shall begin on March 30, 2020. Disfigurement. Section 287.190.4, RSMo, states (in part): “If an employee is seriously and permanently disfigured about the head, neck, hands or arms, the division or commission may allow such additional sum for the compensation on account thereof as it may deem just, but the sum shall not exceed forty weeks of compensation.” Claimant is seriously and permanently disfigured about the left arm due to the surgical scar for her ulnar nerve transposition. Claimant is also seriously and permanently disfigured about the face due to scarring under her chin and crooked nose due to fracture. On behalf of the division, I am allowing 15 weeks of additional compensation for the disfigurement. At the stipulated rate of $368.62, Employer’s liability for disfigurement is $5,529.30.

Future medical treatment. Another issue to be decided is whether Employer-Insurer shall be ordered to provide Claimant with ongoing and future medical treatment pursuant to Section 287.140. In Dean v. St. Luke’s Hospital, 936 S.W.2d 601 (Mo.App. W.D. 1997), the Western District Court of Appeals stated (at 603):

The standard for proof of entitlement to an allowance for future medical treatment cannot be met simply by offering testimony that it is “possible” that the claimant will need future medical treatment. (Citation omitted.) Neither is it necessary, however, that the claimant present conclusive evidence of the need for future medical treatment. (Citation omitted.) To the contrary, numerous workers’ compensation cases have made clear that in order to meet their burden claimants such as Ms. Dean are required to show by a “reasonable probability” that they will need future medical treatment. Claimant has shown to a reasonable probability that she requires continuing, ongoing and future medical treatment for both knees, for headaches, and for her psychiatric conditions. Employer shall, therefore, be ordered to provide such medical, surgical, chiropractic, and


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hospital treatment, including nursing, custodial, ambulance, and medicines, as may reasonably be required to cure and relieve Claimant from the effects of the injury to both knees, head and psyche.

FINDINGS OF FACT AND RULINGS OF LAW IN INJURY NO. 11-096226

In Injury No. 11-096226, in addition to those facts and legal conclusions to which the parties stipulated, I find the following:

1. The work accident of November 27, 2011 was the prevailing factor in the cause of a lumbar sprain.

2. As a direct result of the November 27, 2011 work injury, Claimant has sustained a permanent partial disability of 7.5% of the body as a whole, resulting in 30 weeks of benefits at the weekly rate of $379.13, totaling $11,373.90.

3. There is insufficient evidence for an award of future medical benefits. 4. Although Claimant had permanent disabilities to her right knee, left knee and low back,

which preexisted the November 27, 2011 work accident, there is insufficient evidence of a synergistic effect for Second Injury Fund liability for permanent partial disability benefits.

ORDER IN INJURY NO. 11-096226 In Injury No. 11-096226, Employer is ordered to pay Claimant the sum of $11,373.90 for permanent partial disability benefits. Also in Injury No. 11-096226, the claim against the Second Injury Fund is denied in full.

Claimant’s attorney, Van Camp Law Firm LLC, is allowed 25% of all benefits awarded herein as and for necessary attorney’s fees, and the amount of such fees shall constitute a lien on those benefits. Any past due compensation shall bear interest as provided by law. Made by _________________________ /s/Robert J. Dierkes – 3/3/2017 Chief Administrative Law Judge Division of Workers’ Compensation

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