Charles Kelting v. D & D Distributors, LLLP

As the Missouri courts have recently clarified, there is a "vast distinction" between the analyses referable to Second Injury Fund liability for permanent partial as opposed to permanent total disability benefits. Lewis v. Treasurer of Mo., 435 S.W.3d 144, 156 (Mo. App. 2014). A careful reading of $\S 287.220$ RSMo reveals that while the statute does require a showing of synergy to support an award of permanent partial disability benefits, there is no such requirement for purposes of proving entitlement to permanent total disability benefits. Instead, the employee is required only to show that the primary injury and preexisting conditions of ill-being "together result" in permanent total disability:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability ... then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of the second injury fund.

§287.220.1 RSMo (emphasis added).

In denying employee's claim for permanent total disability benefits from the Second Injury Fund, the administrative law judge also relied, in part, on a finding that "actual preexisting hindrances and obstacles to employment are not demonstrated." Award, page 8. It is difficult to reconcile this finding with the administrative law judge's subsequent award of permanent partial disability benefits from the Second Injury Fund, which, of course, required an (implicit) finding that employee's preexisting disabling conditions were sufficiently serious to constitute hindrances or obstacles to employment or reemployment, and with the administrative law judge's express finding that employee's preexisting conditions of ill-being together totaled 244.075 weeks of permanent partial disability. ${ }^{1}$

Finally, we note that the administrative law judge relied on assertions from the Second Injury Fund's vocational expert, J. Stephen Dolan, as to purported admissions regarding preexisting disability contained in a deposition of the employee. That deposition was not offered into the record at the hearing in this matter, and thus we are unable to review it. Nor was employee confronted at the hearing with the relevant deposition testimony, or offered an opportunity to explain any (purported) contradiction between his hearing testimony and the testimony offered at that deposition. Ultimately, where Mr. Dolan substantially relied upon purported admissions by the employee that we are not able to review for ourselves, it is difficult for us to find his opinions persuasive, however credible his analysis may otherwise be.

[^0]

[^0]: ${ }^{1} The administrative law judge suggested \S 287.190 .6(1)$ RSMo required him to find, as a matter of law, that employee suffered preexisting permanent partial disability consistent with employee's prior workers' compensation settlements. But the conclusive presumption of continuing disability under that section only applies where there is "a subsequent injury to the same member or same part of the body [which] also results in permanent partial disability[.]" Thus, in this case, § 287.190.6(1) would only apply with respect to the prior left knee settlement.

For the foregoing reasons, although we agree that the evidence in this matter could reasonably support an award of permanent partial as opposed to permanent total disability benefits from the Second Injury Fund, we are unable to adopt the administrative law judge's analysis with respect to the issue of Second Injury Fund liability; instead, we must, and do hereby, disclaim it. Our own analysis follows immediately below.

The parties dispute, in their briefs, whether employee's left total knee replacement surgery of November 2007 flowed from the effects of the work injury of September 2005, or whether the need for that surgery resulted instead from subsequent worsening of osteoarthritis unrelated to the work injury. ${ }^{2}$ Employee advances the expert medical opinion of Dr. David Volarich, who believes that the September 2005 accident was the prevailing factor causing significant progression of a preexisting minimally symptomatic arthritic condition in the left knee to the point that it required significant medical care, including the total left knee replacement.

The Second Injury Fund, on the other hand, advances the expert medical opinion of Dr. Bernard Randolph, who believes the prevailing and primary factor necessitating the total knee replacement procedure, was employee's preexisting osteoarthritis of the knee. Dr. Randolph reasoned that although it is possible the September 2005 accident "triggered" increased symptoms in employee's left knee, that accident did not "aggravate" or otherwise alter the "natural history" of a preexisting arthritic disease process in employee's left knee. Transcript, page 508. We note that this explanation is somewhat at odds with Dr. Randolph's ultimate rating of an increased 4\% permanent partial disability of the left knee as resulting from the effects of the September 2005 accident.

In light of Dr. Randolph's ultimate concession that the pathology resulting from the September 2005 accident involved new and increased permanent partial disability, the uncontested expert medical evidence before us compels, at the very least, a determination that the accident of September 2005 caused a "resulting medical condition" in employee's left knee, along with a permanent increase in "disability" referable thereto, or in other words, a compensable injury under § 287.020.3(1) RSMo. ${ }^{3}$

Consequently, it appears to us that the appropriate question is not whether the accident was the prevailing factor causing the need for total left knee replacement surgery; instead, we must determine whether such treatment was reasonably required to cure and relieve the effects of employee's compensable injury for purposes of $\S 287.140$ RSMo. See Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. 2011). In the

[^0]

[^0]: ${ }^{2}$ Although the parties did not specifically place in dispute, at the hearing, any issue whether a particular medical treatment was reasonably required to cure and relieve the effects of the work injury, we deem the parties' arguments regarding the total knee replacement to reasonably fall within the scope of their dispute as to whether and when employee reached maximum medical improvement.

${ }^{3}$ Indeed, the parties did not place in dispute any issue of medical causation. Instead, they unanimously acceded to the administrative law judge's recitation of their stipulation that "[employee] sustained an accident and injury arising out of and in the course of employment on September 28, 2005." Transcript, page 1 .

Tillotson case, the court made clear that the "prevailing factor" test has no place in our analysis under $\S 287.140$, and provided the following guidance with regard to preexisting conditions:

[I]n determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant.

Id. at 519 .

Following Tillotson, we must conclude that Dr. Randolph's emphasis on employee's preexisting osteoarthritis is not particularly relevant. On the other hand, it likewise appears that Dr. Volarich failed to apply the appropriate test. However, if the accident was, as Dr. Volarich asserts, the prevailing factor causing the need for treatment in the form of a total left knee replacement, it follows by necessary implication that such treatment flows from the accident.

Turning to the medical records, we note that the total knee replacement surgery arose in the context of employee seeking ongoing treatment for the continuing complaints of pain and limitations he suffered as a result of the accident. It is apparent to us from the records and from employee's credible testimony (and we so find) that more conservative approaches in the form of physical therapy, injections, medications, and work restrictions provided only short-term or limited relief from the new and increased symptoms and limitations employee experienced as a result of the stipulated work injury. Thus, after careful consideration, we are persuaded (and we so conclude) that the total knee replacement surgery was reasonably required to cure and relieve the effects of employee's left knee injury on September 2005, despite the fact that surgery also benefitted employee's preexisting degenerative condition of osteoarthritis.

We find that employee reached maximum medical improvement on February 27, 2008, the date upon which he completed and was released from the post-surgery physical therapy program ordered by D