Connie Miles v. Jefferson County R-7 School District

Stairs, and prolonged standing. If employee bumped the knee, she would suffer swelling and increased pain, and sometimes used a crutch until the swelling went down. Employee settled a claim arising from her 1993 left knee injury with her employer for 25 % permanent partial disability of the left knee.

Employee presented expert medical testimony from Dr. Robert Poetz, who identified the following permanent and partially disabling conditions preexisting the primary injury: 40 % of the left knee referable to the 1993 injury; 5 % of the body as a whole referable to degenerative conditions of the lumbar spine; and 5 % of the left shoulder. We note that employee, in her testimony at the hearing before the administrative law judge, did not identify any preexisting injuries or problems with either her low back or her left shoulder. Nor did she provide any medical records predating the primary injury that would substantiate any preexisting permanent partial disability referable to the lumbar spine or left shoulder.

We find unpersuasive Dr. Poetz's opinions and ratings identifying preexisting permanent partial disability of the low back and left shoulder. We do, however, find persuasive Dr. Poetz's opinion identifying preexisting permanent partial disability of the left knee, and find that employee suffered 25 % permanent partial disability of the left knee at the time of the primary injury.

Employee worked for employer as a transportation director. On December 15, 2003, employee was walking through employer's parking lot when she slipped on ice and fell, suffering injuries. Employee received treatment at the Jefferson Memorial Hospital, where physicians diagnosed strains of the neck and lumbar spine and contusion of the left hip and knee, took employee off work, and prescribed Soma, Anaprox, and Lorcet.

Employee continued to suffer from unrelenting low back and radicular pain. Her complaints did not respond to an extensive course of conservative treatment, so treating physicians ordered MRIs of the lumbar spine which demonstrated a herniated disc at L4-5. On January 20, 2005, employee underwent a lumbar microdiscectomy and anterior lumbar interbody fusion surgery at L4-5. The parties stipulated that employee reached maximum medical improvement following this surgery on June 22, 2005. Dr. James Coyle, an authorized treating physician, rated employee's permanent partial disability resulting from the primary injury at 20 % of the body as a whole referable to the low back. Employee settled her claim arising from the primary injury with employer for 42.5 % permanent partial disability of the body as a whole referable to the low back. Employee continues to suffer low back pain which limits her ability to endure prolonged walking or sitting, makes housework difficult, and prevents her from picking up her grandchildren.

Dr. Poetz identified the following permanent partially disabling conditions resulting from the primary injury: 50 % of the body as a whole referable to the lumbar spine; 15 % of the body as a whole referable to the coccyx (tailbone); 20 % of the left knee; and 20 % of the body as a whole referable to depression (Dr. Poetz identified a subsequent 2005 injury as also contributing to this rating). We find Dr. Poetz's opinions persuasive to the extent he identifies permanent partial disability of the body as a whole referable to the tailbone and low back resulting from the primary injury, but we are not persuaded that the

Primary injury caused employee to suffer permanent partial disability referable to the left knee or depression.

In addition to the testimony of Dr. Poetz, who opined that employee is permanently and totally disabled owing to a combination of her preexisting conditions, the primary injury, and a subsequent August 2005 left shoulder injury, employee presented the expert vocational testimony of Sherry Browning, who agreed that employee is unemployable in the open labor market. Ms. Browning identified problems with the left shoulder, low back, and left knee as contributing to employee's permanent and total disability. Ms. Browning opined that if employee had a need to lie down during the day referable to the primary low back injury, this would not render employee permanently and totally disabled due to the low back alone, and reiterated her belief that employee is permanently and totally disabled due to a combination of the low back, left knee, and left shoulder conditions.

It appears to us that employee's expert opinion evidence as to the issue of permanent total disability is not particularly relevant, in that both Dr. Poetz and Ms. Browning identify a subsequent left shoulder injury and surgery as contributing to employee's inability to compete in the open labor market. The August 2005 left shoulder injury is not before us. Rather, we are concerned with the question of employee's medical condition when she reached maximum medical improvement on June 22, 2005, and whether the primary injury considered alone or in combination with employee's disability preexisting December 15, 2003, renders her permanently and totally disabled.

The Second Injury Fund presented the expert vocational testimony of James England, who opined that employee is permanently and totally disabled as a result of the primary injury if one assumes employee has to lie down during the day and doesn't get adequate sleep owing to her low back pain. Mr. England alternatively opined that employee is not permanently and totally disabled and that she could handle at least sedentary work. We do not find Mr. England's testimony as supportive of a finding that employee is permanently and totally disabled as a result of the work injury considered in isolation, because we are not persuaded that employee has a need to lie down to relieve pain that is solely due to the work injury. We note that employee, at the hearing before the administrative law judge, merely testified that she began to lie down for pain relief after the primary injury, and did not specifically identify the effects of the primary injury as the reason she needs to lie down. Given employee's preexisting pain condition referable to the left knee, and the aforementioned subsequent August 2005 left shoulder injury, and in light of employee's failure to provide specific credible testimony to resolve this issue, we decline to make any finding that employee has a need to lie down referable to the primary injury considered in isolation, or due to any combination of conditions.

In light of the foregoing considerations, we are not persuaded that as of June 22, 2005, employee was rendered permanently and totally disabled by the primary injury, considered alone and in isolation. Rather, we find that the primary injury caused employee to suffer an overall 42.5% permanent partial disability of the body as a whole referable to her low back and tailbone injuries. Nor are we persuaded that as of June 22, 2005, employee was

rendered permanently and totally disabled owing to a combination of the effects of the primary injury and her preexisting disability referable to the left knee.

We do, however, find persuasive Dr. Poetz's testimony to the extent he identified a synergistic interaction between employee's preexisting disabling condition of the left knee and employee's disability resulting from the primary injury. We find that employee's preexisting left knee disability combines with the effects of the primary injury in such a way as to produce more disability than the simple sum of disability referable to these conditions.

Section 287.220.1 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund 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 found that employee suffered from a 25 % permanent partial disability of the left knee at the time of the primary injury. We are convinced that this condition was serious enough to constitute a hindrance or obstacle to employment. This is because we are convinced employee's preexisting left knee condition had the potential to combine with a future work injury to result in greater disability than would have resulted in the absence of the condition. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

We have credited Dr. Poetz's opinion that employee's primary injury combines synergistical