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Glasco v. Treasurer of State-Custodian of Second Injury Fund

Court of Appeals of Missouri, Western District, First Division

October 24, 2017

WANAE GLASCO, Appellant,
v.
TREASURER OF THE STATE OF MISSOURI-CUSTODIAN OF THE SECOND INJURY FUND, Respondent.

         Appeal from the LABOR AND INDUSTRIAL RELATIONS COMMISSION

          Before Cynthia L. Martin, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

          JAMES EDWARD WELSH, JUDGE.

         Wanae Glasco appeals the Labor and Industrial Relations Commission's decision denying her claim for permanent total disability benefits from the Second Injury Fund. We affirm.

         Background

         Wanae Glasco, who was born in 1956, is a licensed practical nurse (LPN) and holds a bachelor's degree in accounting. In 2000, Glasco began working as a customer service representative at Citicorp, Inc., where she worked 10 hour shifts. Glasco was discharged by her employer on August 12, 2012, as she was unable to return to work after July 2011.

         Glasco has long suffered from various maladies, including recurring problems with her right knee, for which she has undergone two surgeries, and a heart condition, for which she underwent surgery in February 2007. The most troublesome of Glasco's health problems, however, is chronic and recurring low back pain, which has plagued her since the late 1990s.

         Dr. Robert Drisko has treated Glasco's back problems since 1997. According to Dr. Drisko, Glasco had undergone multiple back surgeries prior to 2008.[1] In 2008, he performed another surgery on Glasco's back, this time consisting of a laminectomy, a fusion at the 3rd and 4th lumbar vertebrae (L3-L4), and the placement of a bone growth stimulator.

         In May 2010, Dr. Jonathan Jacobs diagnosed Glasco with "failed back syndrome"[2] and recommended that she see a pain specialist and a psychiatrist. Five months later, Glasco returned to Dr. Drisko for severe pain in the left side of her back radiating down the back of her left leg and sometimes into the foot. Dr. Drisko discovered that Glasco was developing stenosis above the site of her prior surgery, a condition that he termed "transition syndrome." Dr. Drisko took her off work and ordered injections in the low back to treat her sacroiliac (SI) dysfunction.

         In January 2011, Dr. Drisko noted that Glasco reported that she was suffering severe low back pain with radiation into both legs following two recent falls down flights of stairs. The doctor diagnosed post-traumatic radicular flares and provided her with another SI joint injection. Dr. Drisko again prepared short-term disability paperwork to keep Glasco off work due to her inability to work.

         On February 3, 2011, Glasco reported to Dr. Drisko that she could not stand up straight, was suffering constant pain in her left leg, and was "miserable." Dr. Drisko recommended an MRI and continued to keep Glasco off work. The MRI revealed numerous spine abnormalities. When Glasco saw Dr. Drisko on February 10, 2011, she reported that she could "not do anything at all" due to the constant pain and numbness in her left leg. Given that medication was not helpful, Dr. Drisko recommended a dorsal column stimulator for her pain.[3]

         When Glasco saw Dr. Drisko for a follow-up at the end of March, she told him that she wanted to return to work as she had exhausted her short-term disability benefits. Dr. Drisko released Glasco to return to light-duty work on April 12, 2011, with restrictions of no lifting, carrying, pushing, or pulling, and the accommodation of getting up for 10 minutes every 2 hours.

         Two weeks later, on April 27, 2011, Glasco fell at work and injured her left knee (the "primary" injury). Glasco reported the incident to her employer, and the employer sent her for medical treatment. Dr. David Prickett diagnosed Glasco with a left knee strain, ordered an MRI, and released her to return to work with the use of a cane if needed. Dr. Prickett referred Glasco to another doctor, who prescribed hydrocortisone injections and physical therapy.

         After receiving treatment by the company's doctors for her knee injury, on July 19, 2011, Glasco returned to see Dr. Drisko about her chronic back problems. Dr. Drisko again took Glasco off work for three months due to her inability to work. On September 19, 2011, Dr. Drisko performed another back surgery consisting of a fusion at L2-L3, re-exploration of the earlier L3-L4 fusion, and placement of a bone growth stimulator.

         On October 18, 2011, Dr. Drisko completed new paperwork to keep Glasco off work until December 12th due to her back pain, noting that she was unable to stand or sit for more than thirty minutes and was significantly limited in her activities of daily living. When Dr. Drisko saw Glasco on March 7, 2012, he saw some improvement but noted that she continued to suffer significant pain, so he prescribed oxycodone. Glasco was never physically able to return to work after July 2011. She was terminated by her employer on August 12, 2012.

         Glasco filed a claim for workers' compensation for injury to her left knee as a result of her fall at work. She eventually entered into a settlement agreement with Citicorp on that claim for 15% permanent partial disability, referable to her left knee. Glasco also filed a claim against the Second Injury Fund, alleging that the combination of her primary injury to her left knee and her pre-existing disabilities rendered her permanently and totally disabled.

         At a hearing before an Administrative Law Judge (ALJ), the parties stipulated that Glasco was an employee of Citicorp when she sustained her knee injury; that the injury occurred while she was working in the course and scope of her employment; and that Glasco timely notified her employer and timely filed her claim. Among the issues to be resolved were: (1) whether Glasco had a compensable injury that resulted in permanent partial disability; (2) whether she suffered any pre-existing disability that was a hindrance or obstacle to employment; and (3) the liability, if any, of the Second Injury Fund.

         Glasco testified about her primary injury and her pre-existing disabilities. She also introduced the expert testimony of Dr. Daniel Zimmerman and of Michael Dreiling, a vocational rehabilitation counselor, both via deposition. The Fund introduced the deposition testimony of Dr. Drisko and of Dr. Daryl Thomas, whom Citicorp had deposed in the case. Both parties submitted a plethora of Glasco's medical records.

         Expert Testimony

         Dr. Daniel Zimmerman testified, via deposition, that he conducted an independent medical examination of Glasco on July 22, 2013. He opined that she was permanently and totally disabled due to the combination of her primary injury with her pre-existing conditions. Dr. Zimmerman had not been provided Dr. Drisko's office notes to review, however, and, thus, was unaware of the complete history of Glasco's back problems, such as the fact that she had undergone multiple back surgeries prior to 2008. He also seemed to be unaware that Glasco had been on short-term disability for three months before the accident due to low back and left leg radicular pain or that she had worked only about two weeks in 2011 before the April 27 accident. After reviewing Dr. Drisko's February 10, 2011 office note, which suggested a dorsal column stimulator and related Glasco's claim that she "really [could] not do anything at all, " Dr. Zimmerman agreed that the note "implied" that Glasco was severely disabled prior to April 2011.

         Vocational rehabilitation counselor Michael Dreiling testified via deposition that he evaluated Glasco in November 2013. He initially opined that, due to her age, education, and the extent of her current disabilities, he did not believe that she could "realistically compete or obtain employment in the labor market." On cross-examination, Dreiling acknowledged that he was unaware that, prior to her work accident, Glasco had severe back pain that radiated into both legs and had undergone numerous back surgeries. He too was unaware that Glasco had been on short term disability from January 2011 until two weeks before her work accident or that she had told Dr. Drisko that she "really [could] not do anything at all." Upon learning the full history of her back problems, Dreiling agreed that there was significant pre-existing disability and that, even if he assumed that the left knee was fine, Glasco would have been "virtually unemployable" outside the Citicorp job setting due to her back condition and its effect on her ability to function.

         Dr. Drisko testified via deposition that Glasco had undergone six spinal surgeries. He opined that she is totally disabled due to her progressive back problems. He stated that he had taken Glasco off work in January 2011, July 2011, and after the September 2011 surgery, not because of any work injury, but rather solely due to the "transition syndrome" in her back. Dr. Drisko stated that the prevailing factor in the development of her condition was degenerative, and he believed that it was disabling as of 2010. He did not dispute that Glasco hurt her left knee at work in April 2011 and that such injury may be a contributing factor in her disability. He maintained, however, that she was totally disabled due to the pre-existing back condition alone.

         Dr. Thomas testified primarily about Glasco's work-related injury to her left knee, which he rated at 10% permanent partial disability. He stated, however, that he did not believe that the April 2011 work accident caused Glasco to suffer any additional disability to her low back.

         Commission's ...


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