Williams v. Treasurer of Mo.

• Decision Date: 07 April 2020
• Docket Number: No. ED 108262,ED 108262
• Citation: 598 S.W.3d 180
• Parties: Cherisse WILLIAMS, Appellant, v. TREASURER OF MISSOURI as Custodian of Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

598 S.W.3d 180

Cherisse WILLIAMS, Appellant,

v.TREASURER OF MISSOURI as Custodian of Second Injury Fund, Respondent.

No. ED 108262

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: April 7, 2020

Kevin D. Wayman, 2333 S. Hanley Road, Suite 101, Brentwood, MO 63144, For Appellant.

Mathew Kincade, P.O. Box 861, St. Louis, MO 63101, For Respondent.

SHERRI B. SULLIVAN, J.

Introduction

Cherisse Williams (Appellant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) affirming the administrative law judge’s (ALJ) award of permanent partial disability benefits from the Missouri Second Injury Fund (SIF or Respondent). Appellant claims she is entitled to permanent total disability benefits. We find the Commission misapplied the law in rejecting Appellant’s claim for permanent total disability. We further find the award to be against the overwhelming weight of the evidence and unsupported by substantial evidence. Accordingly, we reverse and remand.

Factual and Procedural Background

Appellant worked for Gate Gourmet, Inc. (Employer) for approximately 24 years, from 1983 to 2008. In addition to driving a truck, Appellant would help restock food and beverages onto airplane galleys. In 2005, Appellant suffered the first work-related injury to her neck while lifting a carrier of bottled water. Appellant’s injury was treated by Dr. David Lange (Dr. Lange). Dr. Lange diagnosed Appellant with a degenerative disc at C5-C6. Appellant had surgery for this injury, resulting in almost complete symptom relief. Appellant eventually returned to work at full duty. However, Appellant still experienced some pain, and some of her life activities became limited as a result. Appellant’s claim against Employer for the injury was resolved by mutual consent in 2006.

In 2008, Appellant was again injured, this time while unloading a cabinet from a compartment in a plane. Appellant experienced a sharp pain between her shoulder blades and neck, and knew immediately she had hurt herself again. Appellant came under the care of Dr. David Raskas (Dr. Raskas). An MRI revealed a cervical disc herniation at C6-C7. Appellant received an epidural injection

and then a selective nerve root block as treatment. When that failed to provide relief, Dr. Raskas ordered a Functional Capacity Evaluation (FCE) to identify the precise cause of the symptoms.

The FCE revealed Appellant’s maximum work capacity was not up to the level required by her job duties. Upon further examination, Dr. Raskas recommended another surgery. Appellant again saw Dr. Lange, who performed surgery to address the disc herniation caused by her work injury.

After surgery, Appellant attended physical therapy at PRORehab. Records from that treatment indicate Appellant experienced ongoing neck pain. Evaluations of her capabilities noted high levels of subjective pain complaints, and possible guarded, self-limiting behavior by Appellant. The record states Appellant showed capabilities to perform light demand work, but noted final disposition should be made by a physician.

Appellant reported the second surgery did not ultimately help her symptoms. Appellant next sought help from Dr. James Coyle (Dr. Coyle). After examination, Dr. Coyle recommended further surgery. Dr. Coyle performed two surgeries on Appellant, in 2010 and 2011. Afterwards, Appellant still had ongoing neck pain, as well as weakness and numbness in her arm. Dr. Coyle referred Appellant to a physical therapist. He also recommended work restrictions of no lifting over 20 pounds, no lifting overhead, and avoiding high-impact activities. Appellant took another FCE at PRORehab. This FCE yielded results similar to the first: that she was physically limited by her injuries, performed the test with some indication of guarding/self-limiting behavior, and had high subjective pain complaints. The FCE report concluded light-work demand level was appropriate, subject to final determination by a physician. Dr. Coyle evaluated Appellant in 2011 and placed permanent lifting restriction of 20 pounds, and no pushing or pulling greater than 44 pounds.

Appellant continued to experience pain and numbness around her neck, especially when lifting. The neck pain also caused nausea, weakness in extremities, and interfered with life activities. Appellant’s pain and weakness required her to lie down and rest several times a day, and complete tasks at a slow pace.

Appellant began taking classes at a community college towards a degree in childcare, earning an associate’s degree. Appellant also spent time caring for her aunt, earning a paycheck from her aunt’s home care service. Appellant obtained this job at the request of her aunt; it was not competitively obtained. Appellant testified she was unable to obtain employment in the childcare field due to her physical restrictions resulting from her work injuries.

Dr. Shawn Berkin (Dr. Berkin) evaluated Appellant twice for the instant claim, first in 2011 and again in 2018. Dr. Berkin’s report and testimony via deposition were presented to the ALJ. Dr. Berkin noted pain and loss of range of movement in Appellant’s neck. He noted normal muscle bulk and tone in Appellant’s upper extremities, but decreased sensation over the lateral surface of her upper right arm. Dr. Berkin opined that the 2008 work injury was the prevailing cause of Appellant’s herniated disc

at C6-C7, the resulting surgeries, and continuing pain and complications. He rated Appellant as having a 42.5 percent permanent partial disability of the body as a whole referable to the 2008 injury and the resulting treatment. He further opined Appellant’s 2005 injury represented a 30 percent disability to the body as a whole. Dr. Berkin noted the 2008 injury and preexisting injury combined synergistically, and amounted to a greater disability than their individual sum; however, Dr. Berkin did not state the ultimate degree of the disability.

Dr. Berkin also offered treatment recommendations and work restrictions. In his 2011 report, Dr. Berkin stated Appellant’s lifting should be limited to 35 pounds on occasion and 25 pounds on a frequent basis; Appellant should push or pull no more than 35-40 pounds; no lifting with arms extended from her body; no lifting or working above shoulder level; and no forceful gripping, squeezing, pinching, pulling, or twisting with her right hand/wrist. Dr. Berkin also opined that Appellant would need to pace herself through any exertion and take frequent breaks. The results of Dr. Berkin’s 2018 report were largely the same. They differed in that Dr. Berkin changed the lifting recommendation to 20-25 pounds occasionally, 15 pounds frequently, and limited pushing and pulling to 35 pounds. Dr. Berkin suggested the reason for this change was that Appellant was older at the time of the second evaluation.

Appellant also presented the testimony of J. Stephen Dolan (Mr. Dolan) via deposition. Mr. Dolan testified as a certified vocational rehabilitation counselor. Mr. Dolan reviewed Appellant’s extensive medical and work history. Mr. Dolan testified Appellant had an excellent work history. Mr. Dolan also discussed the limitations which resulted from Appellant’s work injuries, including her need to lie down throughout the day to ease the pain and discomfort in her neck. He noted Appellant had to miss class or leave early a number of times due to her pain. Mr. Dolan stated Appellant’s vocational test results revealed achievement levels in reading, spelling, and math below average, causing him to question how Appellant had managed to receive an associate’s degree. With regard to job skills, Mr. Dolan noted that Appellant had skills in both truck driving and childcare. However, her restrictions prevent her from obtaining jobs in those fields. Based on his findings, Mr. Dolan concluded Appellant is unable to perform any job in the open labor market, and that no reasonable employer could be expected to hire Appellant in her present physical condition. On cross-examination, he acknowledged Dr. Berkin had not stated Appellant was 100 percent medically disabled, but nonetheless Mr. Dolan concluded no employer would be willing to accommodate the restrictions imposed by Dr. Berkin. The SIF presented no witnesses or exhibits at the hearing.

After reviewing the evidence, the ALJ awarded Appellant permanent partial disability benefits, but denied Appellant’s claim for permanent total disability. The ALJ found Appellant’s testimony about her pain and physical limitations to be credible. The ALJ also found the medical evidence in the record demonstrates Appellant has substantial work restrictions as a result of her work-related injuries. Nonetheless, the ALJ found the medical evidence insufficient to establish total disability. The ALJ noted the Workers’ Compensation Act requires an individual’s disability "be demonstrated and certified by a physician." The ALJ found Dr. Berkin had testified and reported extensively on Appellant’s work-related injuries and their resulting limitations on Appellant’s ability to function, including how the two injuries combined synergistically to impair Appellant to a much greater degree than either would alone. However, in the ALJ’s view, Dr. Berkin had come short of meeting the statutory requirement of demonstrating and certifying total disability. The ALJ conceded that Mr. Dolan, the certified vocational expert, had relied on Dr. Berkin’s medical testimony, as well as his own expertise in the labor market, in forming his opinion Appellant was unable to obtain employment in the open labor market. However, because such an opinion came from Mr. Dolan, who was not a physician, it could not satisfy the statutory standard of being competent evidence from a physician of permanent total disability.

Appellant appealed her decision to the Commission. The Commission adopted the ALJ’s findings and affirmed its decision on the same grounds. The Commission decided that while the law does not...