**Employee:** Dale Nivens
**Injury No.:** 07-002739
Mr. Nivens believes he had a torn meniscus and something loose on his patella; an MRI showed evidence of a meniscus tear, degenerative arthritis in the patellofemoral joint, and a possible loose body. Dr. Snyder operated on the right knee in June of 2008, performing a partial lateral meniscectomy and removal of a loose body from the patella. Mr. Nivens felt that Dr. Snyder's surgery improved the status of the right knee but did not completely address the looseness in the kneecap. Mr. Nivens testified that he was released to full duty work after the surgery to the right knee. Dr. Snyder opined that Mr. Nivens had a seven percent permanent disability of the right knee. In August of 2010, Mr. Nivens testified, he saw Dr. Lutz in St. Louis on his own to obtain a second opinion regarding treatment and left the appointment feeling that there was no additional appropriate treatment for the condition of his right knee.
An MRI ordered by Dr. Bal showed mild narrowing of the medial knee joint, a complex tear of the medial meniscus, a small radial tear of the posterior horn, truncations of the body and anterior horn of the lateral meniscus, three compartment osteoarthritis with cartilage loss and chondromalacia, and patellar subluxation with asymmetric cartilage loss. In July or August of 2011, however, Dr. Bal repaired the knee; Mr. Nivens wants to be reimbursed his $488.89 in out of pocket costs and would like to be held harmless from recourse his health insurer may have for costs it expended in regard to Dr. Bal's surgery. In his deposition testimony, Mr. Nivens stated that he never sought authority from Interstate Brands of their workers' compensation carrier to treat with Dr. Bal.
Mr. Nivens returned to Interstate Brands in July of 2008, but had an assistant who loaded the racks of bread products, drove the delivery truck, and handled the store deliveries. Mr. Nivens said that he voluntarily retired due to his inability to do his work for Interstate Brands on his own as the result of the back, right knee, and left wrist injuries. Mr. Nivens said that he has been receiving social security benefits since July of 2008.
In 2009, according to Mr. Nivens, he was diagnosed with a tendon rupture of the left ankle and plantar fasciitis in both feet. Mr. Nivens testified to surgeries and pulmonary emboli and deep vein thrombosis in his legs. It is since that time that he has been wearing the support stockings to help with the swelling in his legs.
Dr. Raymond Cohen evaluated Mr. Nivens on June 9, 2009, June 19, 2012, and January 2, 2015, and issued reports pertaining to those evaluations on the dates of the respective evaluations, as well as several supplemental reports. Dr. Cohen was deposed twice, on April 15, 2014, and again on June 29, 2015. In his April 2014 deposition Dr. Cohen testified that he believed Mr. Nivens to have a permanent disability of 50 percent of the left wrist and 10 percent of the right knee attributable to the 2007 accident and injury and an additional disability of 55 percent of the right knee as the result of the 2008 accident. Dr. Cohen's report of June 19, 2012, however, refers to an increased disability of the right knee after the second surgery of 65 percent of the knee attributable to the 2008 accident. Dr. Cohen opined that Mr. Nivens has a disability preexisting 2007 of 35 percent of the body attributable to his cardiac condition. Dr. Cohen opined to Mr. Nivens' permanent and total disability as the result of his 2008 accident and his preexisting disabilities.
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Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Dale Nivens
Injury No. 07-002739
In his 2015 deposition, Dr. Cohen noted that Mr. Nivens has disability preexisting his 2007 and 2008 accidents of 15 percent of the body referable to the lumbar spine and five percent of the right knee. Dr. Cohen remained steadfast in his opinion regarding Mr. Nivens' permanent and total disability as the result of his 2008 accident combined with his preexisting disabilities.
Dr. O. Allen Guinn opined to a permanent disability of six percent of Mr. Nivens' left wrist as the result of the accident and injury of January 15, 2007. Dr. Guinn noted that Mr. Nivens' chief complaint when he last saw him on May 20, 2008 for a disability rating was due to the irritation of the ulnar nerve by a dissolvable suture which would take additional time to dissolve.
Dr. Michael Snyder performed surgery on Mr. Nivens' right knee on June 10, 2008; Dr. Snyder performed a right knee partial lateral meniscectomy, a debridement and chondroplasty of the patellofemoral joint and a lateral release. Dr. Snyder opined to a permanent disability of seven percent of the knee. Dr. Snyder released Mr. Nivens from treatment on November 24, 2008. When Dr. Snyder last saw Mr. Nivens on December 28, 2009, he noted that Mr. Nivens complained of his right kneecap feeling like it would pop out. Dr. Snyder diagnosed Mr. Nivens with some lateral subluxation of the patella. Dr. Snyder recommended bracing, rehabilitation, and anti-inflammatory medication.
Dr. David Clymer, orthopedic surgeon, testified by deposition that he evaluated Mr. Nivens on February 8, 2016, and authored a report pertaining to that examination on the same date. Dr. Clymer felt that the right knee MRI taken in 2008 did not differ significantly from the MRI taken of the right knee in 2005; the 2008 MRI revealed "some evidence of tearing and abnormality of the lateral meniscus as well as some other areas of generalized degenerative wear" without clear evidence of a new injury. (Er Exh C, p15,111-14) Dr. Clymer opined that the arthroscopic surgery performed by Dr. Bal in 2011 "demonstrates evidence of a more generalized degenerative process with more medial meniscus damage than lateral meniscus damage." (Er Exh C-2) Dr. Clymer attributed the findings from Dr. Bal's surgery to be consistent with a gradual progressive degenerative process related to Mr. Nivens' age and morbid obesity rather than with workplace events. Dr. Clymer went on to state that although Mr. Nivens may at some point need a knee replacement, the need for such treatment would come from the degenerative process in Mr. Nivens' right knee; Dr. Clymer said that the 2007 and 2008 work accidents are not the "primary and prevailing factor" in Mr. Nivens' potential need for a knee replacement in the future. (Er Exh C-2) Dr. Clymer cited Mr. Nivens' weight and the aging process and the passage of time as the cause of the degeneration of the right knee and the need for additional medical treatment. Dr. Clymer did assign a permanent disability of five percent of the right knee attributable to the 2007 and 2008 accidents in equal amounts.
Benjamin Hughes, vocational rehabilitation counselor, testified by deposition that he evaluated Mr. Nivens' medical records, doctors' reports and depositions in an effort to determine Mr. Nivens' employability in the open labor market. Mr. Hughes issued his report pertaining to Mr. Nivens' employability on December 16, 2015. Mr. Hughes noted that Mr. Nivens' treating physicians, Dr. Guinn for the left wrist and Dr. Snyder and Dr. Bal for the right knee, gave him no work restrictions; only Dr. Cohen imposed permanent work restrictions on Mr. Nivens. Dr. Cohen imposed restrictions on the left wrist, the right knee, and pertaining to Mr. Nivens' prior cardiac condition. Mr. Hughes pointed out that Mr. Nivens has no restrictions at all.
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Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Dale Nivens
Injury No. 07-002739
regarding his right upper extremity. Mr. Hughes opined that, considering Dr. Cohen's restrictions on Mr. Nivens' cardiac condition, left wrist, and right knee, that Mr. Nivens is employable in a large range of sedentary to light positions. Mr. Hughes cited office cleaning, storage facility rental clerk, sales attendant, ticket sales, alarm monitor work, and parking lot attendant as positions for which Mr. Nivens would be qualified. Mr. Hughes testified that looking at the left wrist and right knee injuries and their respective restrictions individually that Mr. Nivens would have an even greater number of positions to which he has access.
Gary Weimholt, vocational rehabilitation consultant, testified by deposition twice, with regard to his evaluation of Mr. Nivens on November 24, 2009. Mr. Weimholt concluded that considering Mr. Nivens' condition of his left wrist, right knee, and cardiac condition that he has "a total loss of access to the open competitive labor market and is totally vocationally disabled from employment." (Clmt exh 5, exh 3) However, in his November 4, 2015 deposition testimony, Mr. Weimholt said that Mr. Nivens' permanent total disability status was either the result of a combination of disabilities or due to the last injury alone. In his second deposition on December 2, 2016, Mr. Weimholt was confused by the order of the injuries, initially claiming that Mr. Nivens' last work related injury was the left wrist injury rather than the right knee injury; Mr. Weimholt maintained that Mr. Nivens' permanent total disability was caused by a combination of his injuries.
Terry Cordray, certified rehabilitation counselor, testified by deposition that Mr. Nivens is not precluded from participation in the open labor market as the result of his 2007 and 2008 work-related accidents.
APPLICABLE LAW
RSMo Section 287.020.2 The word "accident" as used in this chapter shall mean 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. An injury is not compensable because work was a triggering or precipitating factor.
RSmo Section 287.020.3(1) 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.
RSMo Section 287.220.2 All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen
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Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Dale Nivens
Injury No. 07-002739
percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total 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.
AWARD
The claimant, Dale Nivens, has failed to sustain his burden of proof that the accident of January 15, 2007, was the prevailing factor in causing the current condition of Mr. Nivens' right knee. Mr. Nivens testified that he fell on January 15, 2007, and injured his left wrist and his right knee. Mr. Nivens had surgery on his left wrist. Mr. Nivens complained that he had pain in his right knee both before and after the January 15, 2007 accident. There is no medical report indicating a change in the condition of Mr. Nivens' right knee as the result of the January 15, 2007 accident and injury.
Mr. Nivens has sustained his burden of proof that he has a permanent disability of 25 percent of the left wrist as the result of the January 15, 2007 accident and injury. Mr. Nivens testified credibly with regard to the limitations he now has in his left wrist as the result of the 2007 accident and injury to the left wrist. There was no evidence of increased pain or an increase in limitations as the result of the January 15, 2007 accident and injury to the right knee.
Mr. Nivens has failed to sustain his burden of proof that he has permanent disability resulting from the combination of his 2007 left wrist injury and preexisting disabilities. Mr. Nivens
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Employee: Dale Nivens
Injury No. 07-002739
provided evidence of a prior low back injury, a prior right knee injury, and a prior cardiac condition; however, none of these conditions were significant enough to be a hindrance or impediment to employment where Mr. Nivens testified that for years he was able to perform the significantly strenuous work at Interstate Brands while only using Tylenol for back pain and slightly modifying the manner in which he made deliveries to minimize exertion. There was no testimony that Mr. Nivens was under any medical restrictions at the time of his 2007 accident and injury relative to his prior back, right knee, or cardiac condition. Thus the Second Injury Fund is not liable for benefits in this case.
