Robert Grothaus v. Mehlville Fire Protection District

the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo. App. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the administrative law judge.

William F. Ringer, Chairman

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

The administrative law judge erred in failing to find that employee is permanently and totally disabled due to the disability from his primary knee injury combined with his preexisting disabilities including osteoarthritis, obesity, cervical spine problems and knee conditions. The administrative law judge correctly found that employee suffered from these preexisting disabilities and that the disabilities were hindrances or obstacles to employment or reemployment.

The administrative law judge concedes in a footnote that employee may have been totally disabled as of the time of trial. The administrative law judge nonetheless denied permanent total disability benefits finding that if employee was totally disabled at the time of trial, it was due to post-accident weight gain and post-accident worsening of his preexisting osteoarthritis.

There is sufficient evidence in the record to establish that employee had preexisting obesity and osteoarthritis that were a hindrance or obstacle to employment at the time of his injury. The evidence also shows that, until the primary injury, employee was able to perform most work duties by modifying the way he worked. I would find that employee was rendered permanently and totally disabled by a combination of the primary injury with his preexisting disabilities.

I would affirm the administrative law judge's permanent partial disability award against employer/insurer for the primary injury. I would also award future medical care in the form of a knee replacement to be provided by employer/insurer. I would award permanent total disability benefits against the Second Injury Fund.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Robert Grothaus

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Injury No.: 00-111075

Before the

Division of Workers'

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: September 13, 2000
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Mo.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Struck right knee with “jaws of life”.
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: Right knee
14. Nature and extent of any permanent disability: 20% permanent partial disability of the right knee
15. Compensation paid to-date for temporary disability: $20,398.64
16. Value necessary medical aid paid to date by employer/insurer? $27,613.80

Employee: Robert Grothaus Injury No.: 00-111075

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee’s average weekly wages: @1,400.00
3. Weekly compensation rate: 599.96 PTD/TTD; $314.26 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable: 32 weeks of permanent partial disability from Employer $10,056.32
2. Second Injury Fund liability: No

1. Future requirements awarded: None

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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Timothy O'Mara

A hearing in this proceeding was held on February 22, 2005. The parties submitted proposed awards on April 5, 2005. The record comprises 277 pages of medical and vocational records and reports and 207 pages of medical and vocational depositions. Additional time was required in issuing this award due to the voluminous record and complexities of this alleged permanent total disability case.

The parties stipulated that on or about September 13, 2000:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employer's liability was insured by Missouri Fire \& Ambulance District Insurance;
3. the employee's average weekly wage was approximately $\ 1,400.00;
4. the rate of compensation for temporary total disability and permanent total disability was $\ 599.96 and the rate of compensation for permanent partial disability was $\ 314.26; and

1. the employee sustained an injury by accident arising out of and in the course of employee's employment occurring in St. Louis County, Missouri.

The parties further stipulated that:

1. the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
2. compensation has been paid in the amount of $\ 20,398.64 representing 34 weeks of benefits covering the period from September 14, 2000 to May 16, $2001^{\text {III }}$; and
3. employer/insurer have paid $\ 27,613.80 in medical expenses.

The issues to be resolved in this proceeding are:

1. whether some or all of employee's current symptoms are the result of a preexisting condition or the result of the work-related accident;
2. whether the employee should be provided with any future medical treatment;
3. the nature and extent of any permanent disability sustained by the employee as a result of the work-related injury of September 13, 2000; and
4. whether and to what extent employee has sustained any additional permanent partial or permanent total disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disabilities with the primary injury.

Employee claims that he sustained tears of both his medial and lateral menisci of his right knee as a result of the work-related accident of September 13, 2000. Employer/insurer contend that those tears were degenerative and preexisted the work-related accident and that he sustained at most a temporary aggravation of his underlying degenerative osteoarthritis.

The employee must establish a causal connection between the accident and the claimed injuries. Davies v. Carter Carburetor Div., 429 S.W.2d 738 (Mo. 1968); McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Blankenship v. Columbia Sportswear, 875 S.W.2d 937, 942 (Mo. App. 1994); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990); Cox v. General Motors Corp., 691 S.W.2d 294 (Mo. App. 1985); Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974); Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664 (Mo. App. 1963).

Amendments made to Section 287.020 .2 in 1993 require that the injury be "clearly work related" for it to be compensable. An injury is clearly work related "if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor." The Supreme Court held in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. 1999) that the foregoing language overruled the holdings in Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983), Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169 (Mo. 1970), and many other cases which had allowed an injury to be compensable so long as it was "triggered or precipitated" by work. Injuries which are triggered or precipitated by work may nevertheless be compensable if the work is found to be a "substantial factor" in causing the injury. Kasl, supra at 853. A substantial factor does not have to be the primary or most significant causative factor. Bloss v. Plastic Enterprises, 32 S.W.3d 666, 671 (Mo. App. 2000); Cahall v. Cahall, 963 S.W.2d