Court of Appeals of Missouri, Western District, First Division
from the LABOR AND INDUSTRIAL RELATIONS COMMISSION
Cynthia L. Martin, P.J., James Edward Welsh, and Karen King
EDWARD WELSH, JUDGE.
Glasco appeals the Labor and Industrial Relations
Commission's decision denying her claim for permanent
total disability benefits from the Second Injury Fund. We
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.
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
Robert Drisko has treated Glasco's back problems since
1997. According to Dr. Drisko, Glasco had undergone multiple
back surgeries prior to 2008. 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.
2010, Dr. Jonathan Jacobs diagnosed Glasco with "failed
back syndrome" 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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.