We affirm and adopt the award of the administrative law judge, as supplemented herein.
The award and decision of Administrative Law Judge Hannelore D. Fischer, issued February 28, 2014, is attached and incorporated by this reference.
We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable. We further approve payment of $\ 1,100.00 in attorney's fees and expenses from Edelman and Thompson, LLC, to Van Camp Law Firm, LLC, consistent with the terms of the Joint Motion for the Payment of Attorney's Fees and Expenses referenced in the body of this award.
Any past due compensation shall bear interest as provided by law.
Given at Jefferson City, State of Missouri, this $5^{\text {th }}$ day of February 2015.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
John J. Larsen, Jr., Chairman
James G. Avery, Jr., Member
DISSENTING OPINION FILED
Curtis E. Chick, Jr., Member
Attest:
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge should be modified to award permanent total disability benefits from the Second Injury Fund.
Setting aside, for the moment, employee's post-injury complaints referable to the left knee, let us consider the physical condition and employment prospects of this individual. Employee was 55 years of age at the time of the hearing before the administrative law judge; he graduated high school 39 years ago and has no further academic or vocational training; he has no typing or computer skills; he has a work history of performing basically unskilled labor jobs plus some supervisory work in food plants; he suffered a work injury on November 24, 2009, resulting in a low back injury requiring surgery that left him with a 20\% permanent partial disability of the body as a whole; at the time of the November 2009 work injury, employee suffered from several seriously disabling preexisting conditions of ill-being including a prior low back work injury that settled for 5\% permanent partial disability of the body as a whole but which, according to the administrative law judge, constituted a 10\% permanent partial disability of the body as a whole, and which left employee with a chronic pain condition requiring the use of narcotic medication including Percocet, a left knee surgery for osteoarthritis and degenerative meniscal tears resulting in a 20\% permanent partial disability of the left knee, a total right hip replacement resulting in a 35\% permanent partial disability of the body as a whole, osteoarthritis affecting the left hip amounting to a 30 % permanent partial disability of the body as a whole, and an anxiety condition dating back to the 1990s requiring medication and occasionally requiring employee to take as much as a week off work; he was terminated from his last employment in August or September 2010 owing to his physical inability to perform his normal duties, and hasn't worked anywhere since; he is receiving Social Security Disability and long term disability benefits as his sole source of income; he uses a sock-aid to put on his socks and wears moccasins because he can't reach his feet owing to pain in his back and hips; he has occasionally required the assistance of a cane for walking since a 2002 hip replacement; and he can only stand or sit for about 20 to 30 minutes at maximum before experiencing severe low back pain.
I tend to agree with the Commission majority that employee failed to meet his burden of proving that the primary work injury of November 2009 involved any injury to his left knee. But I disagree with the majority's determination that, even in light of the essentially uncontested facts I have just relayed, the record contains insufficient evidence to support a finding employee is permanently and totally disabled regardless of his left knee condition.
The primary confusion in this case appears to stem from the conflation of the related but separate issues of medical causation of employee's left knee condition on the one hand, and the nature and extent of permanent disability from which employee suffers on the other. As to the former issue, it is well-settled in Missouri that we are not permitted to substitute our lay opinions for those of the qualified medical experts on complicated issues of medical causation. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600
(mo. banc 1994). But as to the latter, we have always been permitted wide discretion to determine whether an employee is permanently and totally disabled. Brashers v. Treasurer of the State as Custodian of the Second Injury Fund, 442 S.W.3d 152, 155 (Mo. App. 2014).
As noted by the majority, both Dr. Stuckmeyer and Mr. Dreiling included employee's left knee condition in their opinions that employee is permanently and totally disabled. And why wouldn't they? Employee pursued his claim for compensation, in part, on a theory that he suffered a left knee injury as a result of the November 2009 accident. But the majority assumes that such inclusion by Dr. Stuckmeyer and Mr. Dreiling necessarily implies an unstated conclusion from these experts that employee is capable of competing for work in the open labor market if the work injury did not cause any injury to his left knee. I disagree with such a reading of the opinions from Dr. Stuckmeyer and Mr. Dreiling, as neither provided any indication that consideration of employee's left knee condition was necessary to their opinions regarding employability, and the Missouri courts have made clear that we are not permitted to make inferences from the silence of expert witnesses upon a particular topic. Clark v. FAG Bearings Corp., 134 S.W.3d 730, 735 (Mo. App. 2004).
Even if Dr. Stuckmeyer and Michael Dreiling had suggested the left knee condition was essential to their opinions regarding permanent total disability, we would still be entitled to find differently, because "[e]mployability is a matter within the Commission's expertise," Stewart v. Zwiefel, 419 S.W.3d 915, 918 (Mo. App. 2014), and "[t]he fact finder may reject all or part of an expert's testimony." Bennett v. Columbia Health Care, 134 S.W.3d 84, 92 (Mo. App. 2004).
It appears to me that the Commission majority, while sympathetic to the plight of this seriously disabled individual, is operating under the mistaken impression that expert testimony is needed to establish that employee is permanently and totally disabled even if his left knee complaints are set aside. I disagree with such a proposition because, as I have demonstrated, it finds no support in the Missouri Workers' Compensation Law.
After resolving the issue of medical causation of employee's left knee complaints, the Commission majority should have separately considered the issue whether, given employee's condition as of the date he reached maximum medical improvement from the primary low back work injury, he was capable of competing for work in the open labor market. Because I am convinced that the answer to that question is no, and that employee was instead rendered permanently and totally disabled owing to the effects of the primary injury in combination with his preexisting conditions of ill-being, I respectfully dissent.