Kimberly Clark v. Don Rosner's Homestead Restaurant

the employee failed to establish and/or prove any Second Injury Fund liability.

The administrative law judge set forth the legal standards to follow in order to determine if an employee is permanently totally disabled. The administrative law judge thoroughly weighed the evidence presented by the employee, two medical experts and two vocational experts, and determined that the employee was capable and is capable of performing light or sedentary work, and is not permanently and totally disabled.

To recover from the Second Injury Fund, employee had the burden of proof that she had a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or re-employment. Lammert v. Vess Beverage Inc., 968 S.W.2d 720 (Mo. App. E.D. 1998). The law requires that the primary injury combined with actual and measurable pre-existing disabilities. Messex v. Sachs Elec. Co., 989 S.W.2d 206, 215 (Mo. App. E.D. 1999), that existed at the time of the primary injury. Tidwell v. Kloster Co., 8 S.W.3d 585, 589 (Mo. App. E.D. 1999).

Acceptance or rejection of medical is generally for the Commission. Houston v. Roadway Express Inc., 133 S.W.3d 173, 179 (Mo. App. S.D 2004). Moreover, the Commission is free to disbelieve uncontradicted and unimpeached testimony. Id. (citing Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993)). However, where the record is devoid of conflicting evidence or testimony, "the reviewing court may find the award was not based upon disbelief of the testimony of the witnesses." Id. (quoting Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 (Mo. banc 1960)). The Commission may not disregard and ignore competent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached. Id.

In the instant case, employee principally attempted to meet her burden of proof to establish Second Injury Fund liability based on her testimony at trial, and the evaluating medical reports (not treating records) of Dr. Berkin and Dr. Levy.

Employee's testimony at trial was to the effect that she was virtually injury free with very few health problems prior to the accident occurring October 18, 2000. Based on the employee's testimony alone at trial, it would be difficult to conclude that employee had a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or re-employment.

Employee also, in practicality, denied any pre-existing problems or injuries to both of the evaluating physicians, Dr. Berkin and Dr. Levy. However, several exhibits, comprised of treating medical records from various physicians and healthcare providers, clearly refute employee's trial testimony by indicating employee has suffered from chronic low back pain which has progressively worsened since she was a child. The histories contained in these treating medical records are opposite to employee's trial testimony and the self-serving histories given the two evaluating physicians.

Employee's testimony is replete with conflicts and contradictions to render her testimony untrustworthy and not credible in determining the issue of Second Injury Fund liability.

The report of Dr. Berkin also is neither persuasive nor worthy of belief to establish Second Injury Fund liability.

Employee denied any pre-existing injuries to Dr. Berkin. Dr. Berkin has a conclusory opinion that employee had a pre-existing permanent partial disability of 40 % of the body as a whole at the level of the lumbar spine. Dr. Berkin states that he felt that employee's degenerative disc disease of her low back and spondylolysis were conditions that pre-existed the accident occurring October 18, 2000, and he further felt they were substantial factors contributing to her chronic lower back pain as documented in her medical records. However, Dr. Berkin did not review any treating medical records prior to the date of accident occurring October 18, 2000, as evidenced in his medical report. Dr. Berkin then further states that he felt her pre-existing condition represented a hindrance or obstacle to employment or re-employment at the time of the injury occurring October 18, 2000. This is a conclusory statement without any foundation or evidence to support it. Employee denied any problems to him and there was no history of Dr. Berkin having any facts presented to him concerning a possible hindrance or obstacle to employment or re-employment at the time the injury occurred. In fact, the only evidence presented to Dr. Berkin was that she denied any injuries when asked and there was no explanation by employee to Dr. Berkin of any possible problems she has experienced in employment or re-employment prior to October 18, 2000.

In addition, Dr. Berkin did not render a rating concerning disability attributable to the primary injury occurring October 18, 2000. Regardless, Dr. Berkin opined that employee's pre-existing disability combined with the disability to her lower back (whatever it may be as he didn't rate it) resulting from the October 18, 2000, primary injury, to create a significantly greater disability than the sum of her individual disabilities.

Due to the deficiencies contained in the medical report of Dr. Berkin, his medical opinions are unreliable to be the basis of any award concerning Second Injury Fund liability.

As to Dr. Levy, employee presented to Dr. Levy with a history of denial of any previous serious problems with her back. Dr. Levy was also of the impression that employee sustained immediate and severe pain at the time of her accident occurring October 18, 2000, and immediately sought medical attention. At trial, employee testified opposite to both of these histories utilized by Dr. Levy.

Dr. Levy was further of the opinion that employee had some pre-existing developmental back abnormalities, that caused very little problem and he considered her inability to work and her overwhelming disability to be a residual of the work related accident occurring October 18, 2000.

Dr. Levy did render a rating of 10 % permanent partial disability of the body as a whole referable to her pre-existing low back condition, degenerative and chronic in nature.

Dr. Levy also apparently did not review any pre-existing treating medical records, although the gist of his opinion was that the work related accident was the overwhelming cause of her present disability in lieu of the pre-existing disability.

Since neither the administrative law judge nor the Commission are of the opinion that employee is presently permanently totally disabled, Dr. Levy's report also cannot be the basis for an award of liability against the Second Injury Fund as his opinion is that the pre-existing disability was extremely minimal in nature, i.e., a rating of 10 % permanent partial disability of the body as a whole, which does not meet the statutory minimum threshold to assess Second Injury Fund liability as required by section 287.220 RSMo. Likewise, Dr. Levy did not render an opinion as to the combination of any possible pre-existing disability with the disability attributable to the primary injury.

In summary, the determination by the administrative law judge that the employee is presently able to work, and is not permanently totally disabled, is based on competent and substantial evidence in the record and there is no reason to disturb that finding. Furthermore, as to Second Injury Fund liability, due to the conflicting and contradictory evidence offered by employee in the form of her own testimony at trial, and the medical reports of two medical experts, Dr. Berkin and Dr. Levy, employee did not satisfy her burden of proof that there was a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or re-employment; nor did employee establish a synergistic effect establishing Second Injury Fund liability as to permanent partial disability.

William F. Ringer, Chairman

Employee: Kimberly A. Clark

Injury No. 00-176640

SUMMARY OF FINDINGS

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Undetermined
3. Was there an accident or incident of occupational disease under the Law? Undetermined
4. Date of accident or onset of occupational disease? October 18, 2000
5. State location where accident occurred or occupational disease contracted: St. Francois 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? Yes
11. Describe work employee was doing and how accident happened or occupational disease contracted: The employee slipped and fell while emptying a five-gallon bucket.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Alleged injury to low back
14. Nature and extent of any permanent disability: Employee settled her disputed claim against the employer-insurer for 12.5% of the body as a whole.
15. Compensation paid to date for temporary total disability: Undetermined
16. Value necessary medical aid paid to date by employer-insurer: Undetermined
17. Value necessary medical aid not furnished by employer-insurer: Undetermined
18. Employee's average weekly wage: 201.25
19. Weekly compensation rate: 134.16
20. Method wages computation: By agreement
21. Amount of compensation payable: Employee’s claim against the employer-insurer was settled by a compromise settlement agreement prior to the hearing.
22. Second Injury Fund liability: Employee’s claim against the Second Injury Fund