Gary Page v. OCCI, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-001987

Employee: Gary Page

Employer: OCCI, Inc.

Insurer: Travelers Indemnity Company of America

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 11, 2017, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued July 11, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 30^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Gary Page

Injury No. 11-001987

Dependents:

$\begin{array}{ll}\text { Before the } & \\ \text { DIVISION OF WORKERS' } & \\ \text { COMPENSATION } & \\ \text { Department of Labor and Industrial } & \\ \text { Relations of Missouri } & \\ \text { Jefferson City, Missouri }\end{array}$

Employer: OCCI, Inc.

Add'l Party: Second Injury Fund

Insurer: Travelers Indemnity Company of America

Hearing Date: May 9, 2017

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: January 12, 2011.
5. State location where accident occurred or occupational disease was contracted: State of Texas
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Prior to January 12, 2011, Claimant's left ankle was chronically painful and swollen; on January 12, 2011 Claimant "rolled" his left ankle while moving material on a skid.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: None.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: $\ 4,569.60.

1. Value necessary medical aid paid to date by employer/insurer? $\ 2,036.90.
2. Value necessary medical aid not furnished by employer/insurer? None.
3. Employee's average weekly wages: $\ 921.00.
4. Weekly compensation rate: $\ 614.00 for temporary total disability and permanent total disability; $\ 418.58 for permanent partial disability.
5. Method wages computation: Stipulation.

None.

The claim against Employer and Insurer is denied in full.

The claim against the Second Injury Fund is denied in full.

Employee: Gary Page

Departments: OCCI, Inc.

Add'l Party: Second Injury Fund

Insurer: Travelers Indemnity Company of America

Hearing Date: May 9, 2017

These cases (Injury No. 08-096549 and Injury No. 11-001987) were consolidated for hearing. The evidentiary hearing was held in these cases on May 9, 2017, in Jefferson City. Gary Page ("Claimant") appeared personally and by counsel, Scott Holwitt. OCCI, Inc. ("Employer") appeared by counsel, Lynn Newmark. Travelers Indemnity Co. of America ("Insurer") appeared by counsel, Lynn Newmark. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on June 16, 2017.

In Injury No. 08-096549, the hearing was held to determine the following issues:

1. Whether the work-related accident of October 3, 2008 is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Employer-Insurer's liability, if any, for temporary total disability benefits;
3. Employer-Insurer's liability, if any, for permanent partial disability benefits or permanent total disability benefits;
4. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits; and
5. Employer-Insurer's liability, if any, to provide Claimant with future medical benefits pursuant to $\S 287.140$, RSMo.

In Injury No. 08-096549, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Callaway County and adjoining counties, including Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the average weekly wage is $\ 1,156.26, with compensation rates of $\ 770.84 for temporary total disability and permanent total disability and $\ 404.66 for permanent partial disability;
6. That Gary Page sustained an accident arising out of and in the course of his employment with OCCI, Inc. on October 3, 2008;
7. That Employer-Insurer has paid medical benefits in the amount of $\ 196,109.08;
8. That Employer-Insurer has paid temporary total disability benefits in the amount of $\ 107,619.58
9. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
10. That Travelers Indemnity Co. of America fully insured the Missouri Workers' Compensation liability of OCCI, Inc. at all relevant times.

In Injury No. 11-001987, the hearing was held to determine the following issues:

1. Whether Gary Page sustained an accident arising out of and in the course of his employment with OCCI, Inc. on January 12, 2011;
2. If found to have been sustained, whether the January 12, 2011 work accident is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
3. Employer-Insurer's liability, if any, for temporary total disability benefits;

1. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits;
2. Employer-Insurer's liability, if any, for temporary total disability benefits; and
3. Employer-Insurer's liability, if any, to provide Claimant with future medical benefits pursuant to $\S 287.140$, RSMo.

In Injury No. 11-001987, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Callaway County and adjoining counties, including Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the average weekly wage is $\ 921.00, with compensation rates of $\ 614.00 for temporary total disability and permanent total disability and $\ 418.58 for permanent partial disability;
6. That Employer-Insurer has paid medical benefits in the amount of \$2,036.90;
7. That Employer-Insurer has paid temporary total disability benefits in the amount of $\ 4,569.60;
8. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
9. That Travelers Indemnity Co. of America fully insured the Missouri Workers' Compensation liability of OCCI, Inc. at all relevant times.

Claimant's evidence at hearing consisted of his own live testimony, as well as the following exhibits:

Employer: Gary Page

Injury No. 11-001987

Exhibit 1 $\qquad Medical records from Boone County Hospital

Exhibit 2 \qquad Medical records from Iowa Methodist Medical Center

Exhibit 3 \qquad$ Medical records from Des Moines Orthopedic Surgeons (Dr. Stephen Taylor)

Exhibit 4 $\qquad Medical records from Columbia Orthopedic Group (Dr. Paul Shurnas)

Exhibit 5 \qquad WITHDRAWN

Exhibit 6 \qquad$ Medical records from Orthopedic Center of St. Louis (Dr. John Krause)

Exhibit 7 $\qquad Medical records from Advance Physical Therapy

Exhibit 8 \qquad$ Medical records from University Hospital \& Clinics (Dr. Joseph Burris)

Exhibit 9 $\qquad$ Medical records from Midwest Orthopedic Specialists (Dr. Curtis Burton)

Exhibit 10 $\qquad$ Deposition of Dr. Jerry Meyers (12/18/2012)

Exhibit 11 $\qquad$ Deposition of Dr. D. Wade Hammond (03/31/2015)

Exhibit 12 $\qquad$ Deposition of Gary Weimholt, MS, CDMS (05/15/2015)

Exhibit 13 $\qquad Photographs of feet, front view only (2011)

Exhibit 14 \qquad Photographs of feet, front and left side views (2011)

Exhibit 15 \qquad Photograph of feet (2017)

Exhibit 16 \qquad Photograph of feet (2017)

Exhibit 17 \qquad Photograph of feet (2017)

Exhibit 18 \qquad$ Job Log/Journal (2012-2017)

The Second Injury Fund did not object to the admission into evidence of Exhibits 1 through 4 and 6 through 18. Employer-Insurer did not object to the admission into evidence of Exhibits 1 through 4, 6, 7, and 9 through 17. Employer-Insurer objected to the admission of Exhibits 8 and 18. The objection to the admission of Exhibit 18 was overruled at the hearing. The objection to the admission of Exhibit 8, the certified medical records of Dr. Joseph Burris, was deferred at the hearing, and, upon further consideration and review of the evidence, is hereby overruled.

Employer-Insurer's evidence consisted of the following exhibits:

Exhibit A Deposition of Dr. John Krause (02/18/2013)

Exhibit B Deposition of Karen Kane-Thaler (11/09/2016)

Exhibit C Deposition of Gary Page (04/26/2017)

Exhibit D Deposition of Gary Page (07/11/2012)

Exhibit E Surveillance video footage

Exhibit F Surveillance video footage

Exhibit G Surveillance video footage

The Second Injury Fund stipulated to the admission into evidence of Exhibits A through G. Claimant stipulated to the admission into evidence of Exhibits A through B and E through G. Claimant objected to the admission into evidence of Exhibits C and D (the 2012 and 2017 depositions of Claimant) as cumulative and duplicative. Claimant's objections were overruled and Exhibits C and D were admitted into evidence.

The Second Injury Fund offered no evidence.

Gary Page ("Claimant") is forty-three years old and is currently unemployed, having last worked on January 12, 2011, for Employer. Claimant is a high school graduate, describing himself as an average student. He attended college in Utah for a short time in or around 1991, but left to return home to northeast Missouri before the end of the first year. In or around 1994, Claimant obtained vocational/technical training in welding from Hannibal Vocational-Technical School. Claimant has also received on-the-job training in heavy equipment operation. Much of Claimant's work history consists of construction labor, mainly as a welder or heavy equipment operator. He performed such duties for Employer for a few weeks before his injury of October 3, 2008. Claimant performed similar work for Schick Steel from early 2007 until late 2008, and performed welding/fabrication work for Knapheide in Quincy, Illinois for approximately six years.

From approximately 2004 through 2008, Claimant was self-employed as a general contractor, mainly residential remodeling. From approximately 2004 to 2008, Claimant also operated a bar \& grill in Hannibal, called The Other Place. Claimant worked mainly in the kitchen, but also behind the bar from time to time. The administrative and financial aspects of the business (payroll, accounting, etc.) were handled by a General Manager whom Claimant retained.

Prior to October 3, 2008, Claimant's only preexisting injuries/conditions consisted of a right rotator cuff tear sustained in 1998, with surgery in 1998 and in 1999. Claimant testified that his right shoulder caused minimal problems in his work prior to October 3, 2008.

As stipulated, Claimant sustained work-related injury to his legs on October 3, 2008, while working for Employer in the state of Iowa. Claimant was driving a truck full of pre-cast concrete heading downhill towards a ravine/culvert, when the truck's brakes failed. Claimant jumped from the runaway truck, injuring his left and right ankles and right knee. Claimant was treated emergently at Boone County (Iowa) Hospital and, when stable enough to travel, was transferred to Iowa Methodist Medical Center the same day, where he came under the care of his first orthopedic surgeon, Dr. Stephen Taylor. Dr. Taylor performed emergency surgery to repair an unstable open dislocated fracture of the left ankle, disruption of the deltoid and distal tibial fibular ligaments, and fracture of the left fibula. Extensive hardware was used in the surgery.

On October 6, 2008, Dr. Taylor performed surgery to address the injuries to Claimant's right knee. Though examination and radiology revealed disruption of the anterior cruciate ligament (ACL) and a torn medial meniscus, only the meniscus was repaired at the time; the ACL repair would be deferred until such time as the swelling subsided and Claimant advanced in his recovery from the left ankle injuries.

A few weeks after the accident, Claimant returned home to northeast Missouri, still suffering pain and swelling in his left ankle and right knee, as well as pain and tenderness in his right ankle. He continued his treatment with Dr. Paul Shurnas at Columbia Orthopedic Group, from November of 2008 through the end of 2009. Due to ongoing instability in the left ankle (maluniuon of the fractures), as well as pain and abnormal sensation secondary to nerve injury, Dr. Shurnas performed a second ankle surgery in January of 2009; the fracture repairs were revised and new hardware implanted.

As he recuperated and rehabilitated from his second ankle surgery, Claimant consulted with Dr. Shurnas' colleague, Dr. Patrick Smith, as regards treatment options for his right knee. Upon imaging and examining the knee, Dr. Smith noted that the ACL tear showed some healing and the lateral meniscus remained abnormal and torn. Dr. Smith stated that further surgery would be required (a lateral meniscus repair and possible ACL reconstruction), but that any such treatment would need to be postponed until the left ankle had healed sufficiently to allow for proper post-operative knee rehabilitation.

Due to ongoing pain, swelling and instability in Claimant's left ankle following the second surgery, Dr. Shurnas proposed a third ankle surgery in which he would debride the joint once again and lengthen the calf muscles to allow for greater mobility. However, following a second opinion evaluation at Employer's request, Employer transferred Claimant's further medical care to Dr. John Krause in St. Louis. On February 9, 2010, Dr. Krause performed a third round of surgical procedures on Claimant's left ankle, primarily to address the malunion of the fibular fracture; the entire joint was debrided and loose bodies removed, the bones and tissues placed in proper alignment and new hardware was implanted. This surgery was to be followed three months later by a right knee arthroscopy and then later still by an ACL reconstruction.

Due to ongoing pain, swelling, and instability after the third surgery, Dr. Krause performed a fourth round of surgeries on Claimant's left ankle on May 6, 2010. These procedures, including a partial ankle fusion, were aimed at repairing broken hardware and the consequent widening of the leg bones at the ankle joint. Following the fourth surgery, Claimant continued to suffer pain and swelling in his left ankle, as well as continued pain and instability in his right knee. Dr. Krause administered pain injections to Claimant's left ankle, with only temporary relief. Claimant also participated in physical therapy for the left ankle, with little to moderate effect. Following a functional capacity evaluation (FCE), Dr. Krause released Claimant to return to work full duty as of November 5, 2010. On November 23, 2010, Dr. Krause opined at that Claimant had sustained permanent partial disabilities of 5 % of the right knee and 20 % of the left ankle as a result of his work injury of October 3, 2008.

Claimant briefly returned to work for Employer in early January of 2011. On January 12, 2011, Claimant "rolled" his left ankle while moving some material on a skid while working for Employer on a job site in the state of Texas. There remained chronic pain and swelling in his left ankle from his 2008 injury and previous four surgeries, though Claimant experienced a temporary increase or aggravation in pain following this incident. Employer returned Claimant to St. Louis and resumed medical aid with Dr. Krause. By Claimant's second appointment of 2011, Dr. Krause had determined that Claimant should undergo a fifth surgery to the left ankle, this to completely fuse the joint.

On March 15, 2011, Dr. Krause performed a fifth ankle surgery on Claimant, a deep hardware removal and ankle arthrodesis (total ankle fusion). According to Dr. Krause, these procedures were aimed at relieving Claimant's pain, which was felt to be coming from the ankle joint itself. Dr. Krause was not convinced that the fifth surgery would have a significant effect on Claimant's chronic swelling. Following the fifth surgery, Claimant continued to suffer pain and swelling in his left ankle as his activity level increased (particularly as he transitioned from non-weight bearing to weight bearing), as well as continued pain and instability in his right knee. Claimant participated in physical therapy for the left ankle and right knee, with little to moderate, and largely temporary, effect.

Dr. Krause ordered a second FCE, which occurred on September 28, 2011. Following his review of the FCE and without further examination of Claimant, Dr. Krause declared Claimant to have reached maximum medical improvement (MMI) and released Claimant from further care with permanent activity restrictions of no lifting greater than thirty pounds, no running, and alternating sitting and standing every thirty minutes. Dr. Krause ascribed a permanent partial disability rating of 20 % to Claimant's left ankle, 20 % to the right knee, and noted that Claimant would benefit from switching to a sedentary-type occupation.

Claimant was seen at the request of his attorney on November 17, 2011, by Dr. Jerry Meyers, retired general surgeon. Dr. Meyers testified that Claimant gave a history of being unable to do his usual activities and unable to return to work. Dr. Meyers stated that Claimant could not move his toes, so he cannot ambulate in a normal fashion. Dr. Meyers at first opined surgical consultation for a below-the-knee amputation would be Claimant or if it was Dr. Meyers' initial recommendation.

Dr. Meyers submitted a second report (dated December 26, 2011) without additional examination of Claimant, consultation with treatment physicians, or reviewing additional medical records. That second report stated that the only therapeutic option was a below-the-knee amputation. Dr. Meyers admitted that there could be significant risks from a below-the-knee amputation, including phantom pain. Dr. Meyers found Claimant totally disabled but also provided ratings of 100 percent of the left ankle and 20 percent of the left knee.

Dr. Krause saw Claimant again on February 29, 2012. Dr. Krause found the ankle arthrodesis solid and in an acceptable position. Dr. Krause's medical opinion was that a below-the-knee amputation was not indicated, especially when the cause of the pain has not been pinpointed. He suggested the strong possibility of phantom pain resulting. He noted objectively that the surgical procedures have had a good result and that Claimant should have function in both his knee and ankle that allows him to work, but that, nevertheless, Claimant still has subjective complaints of pain. Dr. Krause repeated the restrictions as reasonable restrictions but not as limitations. He believed that potentially Claimant could do more. Dr. Krause stated that he, personally, would not perform an amputation but indicated another opinion could be sought.

Employer-Insurer scheduled an examination of Claimant by Dr. James Burke to be conducted on April 23, 2012. Claimant did not avail himself of that examination. Claimant did appear for an appointment scheduled by his own attorney with Dr. Wade Hammond on February 27, 2014. Dr. Hammond is a retired orthopedic surgeon. Dr. Hammond diagnosed a complex left ankle injury, torn right medial meniscus, and right anterior cruciate ligament strain. Dr. Hammond submitted a report and a supplemental report. The first report did not suggest any future medical treatment. Without additional examination or review of additional medical records, Dr. Hammond suggested additional options along with an amputation as a last resort in his supplement report. Dr. Hammond indicated was hesitant to recommend amputation because there is no guarantee it would completely relieve the symptoms or alleviate the problem. He agreed with the other physicians that there was the risk of phantom pain following an amputation. Dr. Hammond rated Claimant's disability at 60 percent of the left lower extremity and 20 percent of the right knee.

Claimant was evaluated by two vocational rehabilitation specialists. Gary Weimholt interviewed Claimant at the request of Claimant's attorney on April 23, 2014. He testified that Claimant had a history of jobs over the course of his life classified as medium to heavy. Mr. Weimholt did not think Claimant was employable or placeable in the open competitive labor market. Claimant told Mr. Weimholt that he could not perform activities of interior and exterior maintenance, any kind of home improvement, and that he was using a cane getting in and out of a vehicle. Mr. Weimholt limited his labor market exploration to one website and did not contact any potential employers. He did not provide any placement services.

Karen Kane-Thaler provided a vocational assessment at the request of Employer-Insurer. She met with Claimant on May 31, 2013. Ms. Kane-Thaler identified jobs that were available for which, in her opinion, Claimant could compete in the open labor market of Hannibal-Quincy. She stated that Claimant would be able to seek, be hired, and maintain employment in the available work force.

Exhibit 18 is a list which Claimant compiled entitled "Businesses I have applied". According to Exhibit 18, Claimant has made 56 job applications between May 2012 and February 2017. Most of these were multiple applications to the same businesses (e.g., Wal-Mart and Lowe's, five times each; AutoZone, Sprint, Farm \& Home, Bleigh Construction, three times each). Although Claimant testified that he has almost no computer skills, he also testified that the vast majority of the applications were made on-line. Claimant could only remember actually filling out one application in person, although he thought there might have been more. Claimant believes he personally followed up with his application with Bross Construction, but he did not personally follow up with any other applications. Claimant has not availed himself of any services with Missouri Vocational Rehabilitation.

Claimant admitted to performing the activities documented in surveillance video from 2009 and more recently in 2013 and 2014. This included cleaning and pushing his motorcycle, painting a garage floor, painting picnic tables with standard brushes and pole brushes, walking up a hill, walking on the roof of a carport while assisting estimating a home improvement job, going in and out of a Chevy van without assistance of a cane, loading lumber into van, driving vehicles, hooking a trailer to a vehicle, driving equipment on and off the trailer, operating digging equipment, and helping lift a jackhammer. Claimant did not disclose his ability to perform the activities documented in surveillance to the physicians, physical therapists or vocational experts.

Claimant testified that he was last prescribed narcotic pain medication two years ago yet still has enough pills to take 5-10 pills a week.

Claimant has applied for Social Security Disability. His application was denied on initial hearing and on appeal.

Injury No. 11-001987. I want to address the alleged January 12, 2011 accident/injury first. All of the physicians have ignored this alleged accident/injury; they relate all of Claimant's left ankle and right knee conditions to the October 3, 2008 accident. Likewise, the vocational experts have ignored the alleged January 12, 2011 accident/injury. Claimant testified that he "rolled" his left ankle while moving material on a skid while working for Employer in the state of Texas on January 12, 2011. Claimant testified that his ankle was already chronically painful and swollen immediately prior to the January 12, 2011 incident and that the incident caused only a temporary spike in the pain and swelling.

An "accident" is "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." (Section 287.020.2). Considering Claimant's immediate complaints of pain and increased swelling, the January 12, 2011 incident does appear to meet the statutory criteria of "accident". However, it is clear that the January 12, 2011 "accident" did not cause an "injury". Section 287.020.3(1) states:

In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. 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.

The "medical condition" of the left ankle is "open dislocated fracture of the left ankle, disruption of the deltoid and distal tibial fibular ligaments, and fracture of the left fibula". The January 12, 2011 accident was NOT the prevailing factor in the cause of this medical condition. All the physicians have stated that this medical condition was solely caused by the October 3, 2008 accident. Likewise, no physician has opined that Claimant sustained any disability whatsoever from the January 12, 2011 accident. As Claimant clearly did not sustain an "injury" as a result of the January 12, 2011 accident, that accident is not compensable under the Missouri Workers' Compensation Law. The claim for compensation in Injury No. 11-001987 must be denied, and all other issues are moot.

Injury No. 08-096549: causation. It is undisputed that the October 3, 2008 accident was the prevailing factor in the cause of an open dislocated fracture of the left ankle, disruption of the deltoid and distal tibial fibular ligaments, and fracture of the left fibula. It is further undisputed that the need for the five ankle surgeries flowed directly from the October 3, 2008 accident. It is essentially undisputed that the October 3, 2008 accident was the prevailing factor in the cause of a disruption of the anterior cruciate ligament and a tear of the medial meniscus in Claimant's right knee. The only disputed question concerning causation the extent to which the October 3, 2008 accident has caused Claimant's left ankle to become painful (or chronically painful). As there is no evidence of any other potential cause of Claimant's left ankle condition, I find that this "left ankle pain dispute issue" is better characterized as a "degree of disability" issue rather than as a "causation" issue. Therefore, the "left ankle pain dispute issue" will be further discussed herein below.

Injury No. 08-096549: disability. Claimant alleges that he is permanently and totally disabled as a result of the October 3, 2008 accident and injury, and he is seeking weekly permanent total disability benefits from Employer (or, alternatively, from the Second Injury Fund).

Under Section 287.020.7, "total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Fletcher v. Second Injury Fund, 922 S.W.2d 402, 404 (Mo. App. W.D.1996). The test for permanent and total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. App. E.D. 2007). The primary inquiry is whether an employer can reasonably be expected to hire the claimant, given his present physical condition, and reasonably expect the claimant to successfully perform the work. Id.

Second Injury Fund liability exists only if Employee suffers from a pre-existing permanent partial disability that constitutes a hindrance or obstacle to employment or reemployment that combines with a compensable injury to create a disability greater than the simple sums of disabilities. Section 287.220.1 RSMo 2000; Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576, (Mo. App.E.D. 1985). When such proof is made, the Second Injury Fund is liable only for the difference between the combined disability and the simple sum of the

disabilities. Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990). In order to find permanent total disability against the Second Injury Fund, it is necessary that Employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with prior permanent partial disability(ies) to result in total disability. 287.220.1 RSMo 1994, Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo.App. 1990), Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576 (Mo.App. 1985). Where pre-existing permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the employee for the permanent total disability after the employer has paid the compensation due the employee for the disability resulting from the work related injury. Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo. App. 1992) (emphasis added). In determining the extent of disability attributable to the employer and the Second Injury Fund, an Administrative Law Judge must determine the extent of the compensable injury first. Roller v. Treasurer of the State of Mo., 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Id. It is, therefore, necessary that the Employee's last injury be closely evaluated and scrutinized to determine if it alone results in permanent total disability and not permanent partial disability, thereby alleviating any Second Injury Fund liability.

While recognizing that Claimant has a right knee disability from the October 3, 2008 accident, as well as a prior surgically-repaired right rotator cuff repair, the evidence concerning Claimant's alleged total disability nevertheless focuses exclusively on the left ankle. This is true of Claimant's testimony as well as the testimony of the physicians and vocational experts. Therefore, the "left ankle pain dispute issue" must be examined closely. It is difficult to see how a fused ankle, with minimal to moderate pain, would cause total disability. Dr. Meyers and Mr. Weimholt rely on Claimant's complaints of severe, unrelenting pain in making their respective opinions that Claimant is totally disabled.

Claimant's left ankle is now fused. The sole reason for fusing an ankle is for pain relief. Dr. Krause found the ankle arthrodesis (fusion) solid and in an acceptable position; no doctor has suggested otherwise. The fact that Claimant claims to have experienced absolutely no pain relief from the fusion certainly raises a red flag.

The fact that Claimant continues to ride his motorcycle, in light of his complaints of severe, unrelenting ankle pain, raises another red flag. Claimant's recent purchase of a Jeep with a manual transmission, requiring him to operate the clutch with his left foot, raises a red flag as well, as does Claimant's operation of heavy equipment (excavator), as shown on the surveillance video.

The fact that Claimant has told medical and vocational experts that he must use a cane to get in and out of vehicles (due to his ankle pain), when that is clearly not the case (as evidenced by the surveillance video) raises yet another red flag.

It is also curious that Claimant testified that he continued to take narcotic medication for his ankle pain at the rate of 5-10 pills per week ${ }^{1}$, yet he also testified that he hadn't had a prescription for the narcotic medication for two years. ${ }^{2}$

It is also curious that Claimant testified that he had no computer skills, yet also testified that he submitted approximately fifty job applications on-line. Similarly curious is the fact that Claimant professes a sincere desire to participate in the work force ${ }^{3}$, yet has failed to follow up in person on any of his many job applications.

It is apparent to me that Claimant has not been completely truthful. His subjective complaints of severe, unrelenting ankle pain are inconsistent with other undisputable facts. The evidence compels a finding that Claimant does not have severe, unrelenting pain in his left ankle. Once the severe, unrelenting left ankle pain is eliminated from the equation, Claimant's claim of permanent total disability fails.

I find that Claimant is not permanently and totally disabled. Therefore, neither Employer nor Second Injury Fund has any liability for payment of weekly permanent total disability benefits. I find that, from the accident and injury of October 3, 2008, Claimant has sustained a permanent partial disability only.

Even without the severe pain, Claimant's left ankle disability is significant. He has undergone five surgeries and now has a fused ankle. I find that Claimant has sustained a permanent partial disability of 70 % of the left ankle (155-week level) as a result of the October 3, 2008 accident.

I further find that Claimant sustained a significant injury to his right knee as a result of the October 3, 2008 accident, same being a disruption of the anterior cruciate ligament and a tear of the medial meniscus, causing weakness and instability in the knee. I find that Claimant has sustained an additional permanent partial disability of 35 % of the right knee (160-week level) as a result of the October 3, 2008 accident. ${ }^{4}$

[^0]

[^0]: ${ }^{1}$ Additionally curious is Claimant's testimony that his use of narcotic medication makes him sleepy and causes him a lack of concentration. Claimant displayed no evidence of sleepiness or lack of concentration at the hearing.

${ }^{2}$ Unless Claimant is obtaining narcotic medication from a non-prescription source, he simply cannot be taking the large amounts to which he testified.

${ }^{3}$ When asked about his non-employment status, Claimant testified: "It sucks. I hate it."

${ }^{4}$ I recognize that three doctors have each estimated Claimant's right knee disability at 20\%. Nevertheless, 20\% permanent partial disability is simply inadequate for a medial meniscus tear and an ACL disruption. The determination of the degree of disability sustained by an injured employee is not strictly a medical question. Landers v. Chrysler Corp., 963 S.W.2d 275, 284 (Mo. App. E.D. 1997). While the nature of the injury and its severity and permanence are medical questions, the impact that the injury has upon the employee's ability to work involves factors, which are both medical and nonmedical. Accordingly, the Courts have repeatedly held that the extent and percentage of disability sustained by an injured employee is a finding of fact within the special province of the Commission. Sharp v. New Mac Elec. Co-op, 92 S.W.3d 351, 354 (Mo. App. S.D. 2003). The fact-finding body is not bound by or restricted to the specific percentages of disability suggested or stated by the medical experts. Lane v. G \& M Statuary, Inc., 156 S.W.3d 498, 505 (Mo. App. S.D. 2005). It may also consider the testimony of the employee and other lay witnesses and draw reasonable inferences in arriving at the percentage of disability. Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886, 892 (Mo.App. K.C. 1975). The finding of disability may exceed the percentage testified to by the medical experts. Quinlan v. Incarnate Word Hospital, 714 S.W.2d

I find that Employer-Insurer has paid all TTD benefits and, therefore, Claimant's request for additional TTD benefits is denied.

Regarding the claim against the Second Injury Fund ("the Fund") in Injury No. 08096549, as Claimant is not permanently and totally disabled, I must consider the claim for permanent partial disability benefits from the Fund. I find that the claim must fail because Claimant has failed to prove a synergistic effect between the preexisting right shoulder injury and the injuries from the October 3, 2008 accident, as required by Winingear v. Treasurer, 474 S.W.3d 203 (Mo. App. W.D. 2015).

Employer's liability for future medical benefits. Section 287.140, RSMo, requires an employer/insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003). The claimant must prove the need for treatment by "reasonable probability" rather than "reasonable certainty." Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. W.D. 1995), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). "Probable" means founded on reason and experience, which inclines the mind to believe, but leaves room for doubt. Sifferman v. Sears, Roebuck \& Co., 906 S.W.2d 823, 828 (Mo. App. S.D.1995), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Claimant has had five ankle surgeries, the last being a fusion with hardware. There is always a reasonable probability that the hardware will need to be removed or revised. Further, the right knee ACL has never been addressed. There is more than sufficient evidence to prove a reasonable probability of the need for additional medical treatment.

In Injury No. 11-001987, in addition to those facts and legal conclusions to which the parties stipulated, I find the following facts and make the following rulings of law:

1. Prior to January 12, 2011, Claimant's left ankle was chronically painful and swollen as a consequence of the October 3, 2008 work injury.
2. On January 12, 2011, while working for Employer in the state of Texas, Claimant "rolled" his left ankle while moving material on a skid.
3. The January 12, 2011 incident caused a temporary increase in the pain and swelling in Claimant's left ankle.
4. Claimant sustained an accident arising out of and in the course of his employment with Employer on January 12, 2011.
5. The January 12, 2011 accident was not the prevailing cause of any medical condition.

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[^0]: 237, 238 (Mo.App. E.D. 1986). The Commission "is free to find a disability rating higher or lower than that expressed in medical testimony." Jones v. Jefferson City School Dist., 801 S.W.2d 486, 490 (Mo.App. W.D. 1990).

1. The January 12, 2011 accident was not the prevailing cause of any disability.
2. Claimant did not sustain an injury in the January 12, 2011 accident.

The claim for compensation in Injury No. 11-001987 is denied in full.

Made by

/s/ Robert J. Dierkes 7/11/17

Chief Administrative Law Judge

Division of Workers' Compensation