Melvin Gillham v. Melvin Gillham

Employee: Melvin Gillham

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Employer, on the other hand, argues that employee failed to meet his burden of proof on the issue because no medical expert identified the August 2001 accident as a substantial factor causing any of employee's psychiatric problems. Employer also points out that the treatment notes record a prior history of depression related to divorce and child custody issues.

After careful consideration, we agree with employer on this issue. Especially given the evidence that employee's psychiatric concerns may stem from a number of sources unrelated to the August 2001 accident, and because we believe the cause of this employee's psychiatric concerns does not reasonably come within the realm of lay understanding, we consider the absence of any medical expert opinion supporting employee's lay testimony on the issue to be determinative. We find that employee failed to meet his burden of proof on the issue of medical causation of his depression and anxiety conditions.

We conclude that employee's depression and anxiety are not clearly work related and that work is not a substantial factor in causing employee to sustain the medical conditions of depression and anxiety, or any disability associated therewith. Accordingly, employee's claim for past and future medical expenses related to depression and anxiety are denied, because he failed to prove that these conditions amount to compensable injuries stemming from the August 2001 accident.

We note employer's argument that most of employee's right knee disability should be considered the result of a preexisting right knee injury and degenerative condition, per the testimony of Dr. Farley. We agree that employee suffered some preexisting permanent partial disability of the right knee that should be apportioned as between the work injury and the preexisting condition. *Goleman v. MCI Transporters*, 844 S.W.2d 463, 466 (Mo. App. 1992). However, we disagree with Dr. Farley's ratings, as they do not fairly reflect the degree of pain and limitation employee now suffers as a result of the work injury.

Accordingly, we find that employee suffered a 5% preexisting permanent partial disability of the right knee, and we affirm the administrative law judge's finding that the work injury resulted in an additional 50% permanent partial disability of the right knee.

The administrative law judge determined, without analysis or explanation, that employee is permanently and totally disabled as a result of the effects of the primary injury of August 5, 2001, in combination with subsequent obesity and psychiatric issues. We disagree with the administrative law judge's determination on the issue of permanent total disability, as it finds no support in the expert medical or vocational testimony on record.

Dr. Musich and Gary Weimholt believe employee is permanently and totally disabled as a result of the last injury considered alone, while Dr. Farley and James England believe employee is permanently and totally disabled as a result of the effects of the primary injury in combination with employee's preexisting conditions of ill. After careful consideration, we find the testimony of Mr. England most credible on this issue. Mr. England explained that employee's overall health situation, not just the knee problem in isolation, contributes to render him unemployable on the open labor market. Mr. England identified employee's

preexisting morbid obesity as a serious concern harming his ability to compete for work, noting that the condition affected everything from employee's presentation to potential employers to a doctor's willingness to provide certain treatments for a work injury. Mr. England opined most employers, whether justly or not, would be "leery" of hiring and providing insurance for an individual who most likely would be assumed to suffer from the many health problems that go along with obesity. We are convinced employee's preexisting obesity constitutes a preexisting permanent partial disability, and based on the testimony of Mr. England, we believe that employee's preexisting obesity, along with the preexisting right knee disability, combines with the primary right knee injury to render employee unemployable on the open labor market.

Accordingly, we modify the award of the administrative law judge on the issue of permanent total disability. We find employee is permanently and totally disabled owing to a combination of the effects of the primary injury and his preexisting disabling conditions of ill.

We proceed now to the question of Second Injury Fund liability. Section 287.220 RSMo creates the Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ..." Id. We have determined that employee suffered from preexisting permanent partially disabling conditions referable to a preexisting right knee injury and morbid obesity. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

We note Mr. England's testimony that employee did not identify any specific past difficulty that made obesity a "hindrance or obstacle" to him prior to August 5, 2001. Transcript, page 478. But as the Missouri courts have made clear, past difficulties are not determinative. Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995). Rather, we must apply a "potential to combine" analysis. See Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007); Concepcion v. Lear Corp., 173 S.W.3d 368, 371 (Mo. App. 2005); E.W. v. Kan. City Sch. Dist., 89 S.W.3d 527, 538 (Mo. App. 2002); and Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo. App. 1997). When we apply the appropriate standard, as identified in Wuebbeling and consistently reaffirmed by the courts, we conclude that employee's preexisting obesity amounted to a hindrance or obstacle to employment at the time he sustained the primary injury. This is because we are convinced a cautious employer could reasonably perceive employee's obesity as having the potential to combine with a work related injury so as

to produce a greater degree of disability than would occur in the absence of such condition. Accordingly, we conclude employee's obesity was serious enough to constitute a hindrance or obstacle to employment for purposes of $\S 287.220 .1$.

Similarly, we conclude employee's preexisting right knee injury was serious enough to constitute a hindrance or obstacle to employment. The very facts of this case demonstrate that this condition not only had the potential to combine with a subsequent injury to result in increased disability, but that it actually did so when employee suffered the August 2001 primary injury.

The only remaining question is whether employee satisfied the statutory requirements for proving that the Second Injury Fund is liable for permanent total disability benefits. To establish Fund liability for permanent total disability benefits, employee must prove that: (1) he suffered a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with the prior permanent partial disability to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). Section 287.220.1 requires us to first determine the compensation liability of the employer for the last injury, considered alone. If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

We have adopted the administrative law judge's finding that, as a result of the last injury, employee sustained a 50 % permanent partial disability of the right knee. We have credited Mr. England and found that the primary injury, considered in isolation, did not render employee permanently and totally disabled, but that employee is permanently and totally disabled due to his preexisting disability as it existed on August 5, 2001, in combination with the disability stemming from employee's injuries sustained on that