Melvin Doss v. St. Louis Public Schools

Dr. Poetz opined that, as of the date of the primary injury, employee suffered from the following preexisting permanent partially disabling conditions: 35% of the body as a whole referable to the 2004 low back surgery, 20% of the body as a whole referable to the October 2004 injury, and 15% of the right knee. We credit Dr. Poetz on this issue and adopt these ratings as our own.

On December 21, 2007, employee, a teacher's aide, sustained an accident at work when she slipped and fell in a school hallway. Employee refused treatment because she felt okay after the fall, but two days later she went to Christian Hospital with complaints of soreness in her lower back. Doctors found a normal musculoskeletal exam, found employee's weight bearing, gait, and posture to be normal, and diagnosed low back, chest, and left shoulder pain, prescribed Ultram, and released employee with a 25-pound lifting restriction.

Employer sent employee to Concentra on January 2, 2008, where doctors diagnosed a contusion of the lumbar region and a lumbar strain, with no anticipation of permanent disability. Doctors prescribed Tylenol and Cyclobenzaprine, placed employee on modified duty of no lifting over ten pounds, and sent employee to physical therapy. Conservative treatment was ineffective in relieving employee's ongoing low back symptoms, so doctors sent employee to a physiatrist for pain management. Employee continues to see pain management doctors for epidural steroid injections and prescriptions for pain medicine.

Before the December 2007 injury, employee could skate, bowl, and take her grandchildren to the zoo or movies. Employee can no longer do any of these activities following the December 2007 injury. Employee is now unable to walk more than ten feet before she feels pain.

Employer presents the expert medical testimony of Dr. Doll, who opined the December 2007 fall was not the prevailing factor causing employee's current condition. Dr. Doll did not review any medical records from Christian Hospital, or from Dr. Hoffman (who provided the bulk of employee's preexisting low back treatment), or any medical records related to employee's previous surgeries for the low back, and did not even have certain of the Concentra records. Specifically, Dr. Doll did not have the initial note from January 2, 2008, when the Concentra doctors diagnosed lumbar strain/contusion. On cross-examination, Dr. Doll testified he would be happy to review additional medical records if someone would provide them to him, but nevertheless insisted he had enough background to make his determination to a reasonable degree of medical certainty.

We are not persuaded. Employee has an extensive and complicated medical history with regard to her low back, and now claims a new injury to the same part of her body. That Dr. Doll believes he can render a medical causation opinion without seeing any of the records from employee's preexisting back surgeries, and without even the benefit of the initial treatment notes from Christian Hospital and Concentra, renders his testimony, in our view, completely unbelievable.

Employee presents the expert medical testimony of Dr. Poetz, who opined the December 2007 fall was the prevailing factor causing employee to sustain the following permanent partially disabling conditions: 15 % of the low back, 15 % of the left knee, and 15 % of the left shoulder. Dr. Poetz opined that employee is permanently and totally disabled owing to the combination of her primary injury and preexisting conditions.

Employee presents the expert vocational testimony of James England. Mr. England opined employee cannot successfully compete for employment nor sustain it in the long run, and that her lack of employability is due to her preexisting problems involving her back combined with her current back problems and emotional difficulties. Mr. England explained that employee's presentation, which included walking with a cane, appearing tired and depressed, having almost no teeth, and having difficulty getting up out of her chair after sitting for only 15-20 minutes will be factors a potential employer would consider and would further hurt employee's chances at competing for jobs.

We credit Dr. Poetz and Mr. England. We find that employee suffered a lumbar strain and permanent disability in the December 2007 fall. We find that employee reached maximum medical improvement on April 11, 2008, the day Dr. Poetz saw employee and reached findings regarding permanent partial disability. We find employee will be unable to compete for jobs or sustain them in the long run owing to her preexisting and current back complaints.

Section 287.020.3(1) RSMo sets forth the standard for medical causation applicable to this claim and provides, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

We conclude that employee has met her burden on the issue of medical causation. We have credited Dr. Poetz's testimony that the December 2007 accident caused employee to suffer a lumbar strain and some permanent partial disability. Consequently, we conclude the December 2007 accident was the prevailing factor causing employee to sustain a lumbar strain/contusion and a 10\% permanent partial disability of the body as a whole referable to the low back. Employer is liable for permanent partial disability benefits.

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, the employee must show that she 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. 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 have credited Dr. Poetz's testimony that employee's preexisting low back and right knee conditions were permanently and partially disabling as of the date of the primary low back injury. When we apply the foregoing test, we are convinced that employee's preexisting low back and right knee conditions had the potential to combine with subsequent work injuries to cause greater disability than in the absence of these conditions. Accordingly, we conclude each of these conditions were serious enough to constitute hindrances or obstacles to employment for purposes of $\S 287.220 .1$ RSMo.

For the Fund to be liable for permanent total disability benefits, employee must establish 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 determined that employee sustained a 10\% permanent partial disability of the body as a whole referable to the low back. It follows that the primary injury, considered in isolation, does not render employee permanently and totally disabled. We have found, based on Mr. England's credible testimony, that employee is unable to compete in the open labor market owing to her preexisting disabling conditions in combination with her complaints referable to the primary injury.

We conclude employee met her burden of establishing Second Injury Fund liability for permanent total disability benefits under § 287.220.1. We conclude employee is entitled to, and the Second Injury Fund is obligated to pay, permanent total disability benefits. We have found employee reached maximum medical improvement on April 11, 2008. Because the rate for permanent partial and permanent total disability benefits is the same, and because employer's liability for the primary injury amounts to 40 weeks of permanent partial disability benefits, we conclude the Second Injury Fund is liable to pay permanent total disability benefits beginning January 16, 2009, at the stipulated rate of $\ 224.36 per week.

We reverse the award of the administrative law judge. Employer is liable for permanent partial disability benefits consistent with our determination that employee sustained a 10 % permanent partial disability of the body as a whole referable to the lumbar spine owing to the primary inj