Harold Williams v. Dakota Coast, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 00-170204

**Employee:** Harold Williams (deceased)

**Substituted Claimant:** Dustin Williams

**Employer:** Dakota Coast, Inc. (settled)

**Insurer:** Virginia Surety Company, Inc. (settled)

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

This 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, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Along with its brief, employee moved to submit additional evidence that was missing from the transcript. Specifically, employee alleged that the first two pages of a 1988 report by Dr. Thomas Highland were inadvertently omitted, leaving only the third and final page in the record. This report regarded employee's back condition at that time in relation to a 1986 back injury.

State regulation 8 CSR 20-3.030(2)(A) allows a party to submit additional evidence in certain circumstances. This regulation provides that "[t]he hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge." 8 CSR 20-3.030(2)(A). Subsection (B) of the same regulation states the following, in pertinent part, "As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice."

Here, employee had pages one and two of Dr. Highland's report prior to the hearing before the administrative law judge. Therefore, such evidence was not newly discovered evidence and could have been submitted at the hearing. However, admission of the two pages would further the interests of justice in this matter. The Second Injury Fund has not objected to the admission of these two pages nor provided any rebuttal evidence in response to employee's motion. We find that no party would be prejudiced by the admission of the two pages; the two pages did not present anything new regarding the primary injury in this matter. For these reasons and in accordance with the mandate in § 287.550, RSMo, that proceedings before the Commission "be simple, informal, and summary, and without regard to the technical rules of evidence," we hereby grant employee's motion with the case and allow the admission of the two pages.

Injury No.: 00-170204

Employee: Harold Williams (deceased)

-2-

Medical testimony and documents indicate that employee's medical condition reached maximum medical improvement by the end of 2001.¹ For example, Dr. Allen Parmet opined that employee "was at maximum medical improvement since 2001." *Transcript*, page 182. Similarly, both Drs. Timothy Galbraith and William Allen indicated that by the end of 2001 employee could return to work without restrictions regarding his knee. *Transcript*, pages 332, 511.

Regarding employee's mid-back, Dr. Randal Trecha stated on July 9, 2001, that employee might recover without surgery. *Transcript*, page 492. There is no evidence that employee ever had or needed surgery on his back or any later procedures to cure and relieve the effects of the primary injury regarding his back. We find that employee's medical condition related to the December 3, 2000 primary injury² had stabilized and could no longer reasonably improve with additional medical care by the end of 2001.

Dr. Raymond Cohen's opinion did not dispute that employee was at maximum medical improvement by the end of 2001. On the contrary, Dr. Cohen's opinion regarding the need for future medical treatment was only speculative, contingent on the results of possible exploratory MRI procedures. On October 30, 2012, Dr. Cohen opined that employee would require additional treatment for his right knee and for his lower back, but only if exploratory MRIs supported such action. Dr. Cohen agreed that if an exploratory MRI of his right knee "determined that [employee] is a non-surgical case, then he can continue to use the knee brace as well as appropriate medications for pain." *Transcript*, page 219. Thus, if the MRI did not support surgery, then employee was at maximum medical improvement regarding the right knee.

Similarly, Dr. Cohen recommended an MRI with contrast on the lumbar spine only "to determine if there is any impingement on [employee's] right lower lumbar nerve roots." Dr. Cohen continued that "[i]f that study is positive, I would recommend that [employee] see a spine surgeon for additional treatment including the possibility of a lumbar spine surgery." *Transcript*, page 219. There is no evidence that any exploratory MRI indicated the need for spine surgery. Therefore, Dr. Cohen's statements that employee needed additional treatment are conditional based on the results of the exploratory MRIs and do not negate a finding that employee was at maximum medical improvement by the end of 2001.

Although employee was at maximum medical improvement, employee's inherent lack of credibility and the absence of real synergy makes it impossible for us to find fund liability.

Employee lacks credibility because he repeatedly minimized his 1986 back injury. Employee had a back injury in 1986, which resulted in a workers' compensation claim settlement agreeing to 20% of the body as a whole permanent partial disability. However, in his 2003 deposition, claimant downplayed the 1986 injury as only pulled muscles in his back. *Transcript*, page 82. Employee mentioned that he received a shot for his back, but did not mention physical therapy.

1 The Administrative Law Judge erroneously stated that "the term maximum medical improvement is not included in the statute." Award, page 9. One month prior to the issuance of the award, § 287.020.12, RSMo, became effective, defining maximum medical improvement as "the point at which the injured employee's medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty."

2 We note that the administrative law judge erroneously listed the primary injury date of October 3, 2008, in his award. Award, page 11.

Injury No.: 00-170204

Employee: Harold Williams (deceased)

-3-

not working for five weeks, or the resulting workers' compensation claim that settled. See Transcript, pages 82, 475-76.

Later, in 2011, employee discussed his medical issues with Dr. Parmet. Employee also minimized his pre-existing back problems by indicating that he suffered an injury in 1983 that only required physical therapy. Transcript, page 143-44. Employee stated that he fully recovered from the "1983" back injury and had no back problems until the December 3, 2000 primary injury. Transcript, page 144. Employee did not mention the continuing severe back pain that is found in medical records from the 1986 injury through to 1998. See Transcript, pages 144-45.

Furthermore, employee lacks credibility because he exaggerated his pain and disability to Dr. Parmet that resulted from the primary injury. Dr. Parmet stated that employee was "projecting more pain and disability than can be reasonably established on a physical basis [and] magnifying his symptoms." Transcript, page 177.

Employee's lack of credibility, downplay of the 1986 back injury, and exaggeration of the injuries from the December 3, 2000 primary injury, counters any credible argument of synergy between the pre-existing back injury and the December 3, 2000 primary injury. If employee's statements are true regarding how quickly he recovered from the 1986 injury, then there was nothing remaining by the time of the primary injury.

In addition to employee's lack of credibility, the medical evidence does not support a finding of synergy. In 2012, Dr. Cohen opined that employee's pre-existing injuries related to employee's lower back combined with the primary injury "to create a greater overall disability than their simple sum." Transcript, page 220. Dr. Cohen recommended a loading factor of 15%. Id.

We find that Dr. Cohen's conclusory statements in this matter did not persuasively establish synergy. Missouri courts have declared that an employee fails to meet his burden of proof where his expert "fail[s] to provide any legitimate, persuasive explanation ... making only conclusory and unsupported statement[s]." Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 378 (Mo. App. 2006). Dr. Cohen does not explain how or in what way the primary injury combined with the pre-existing injuries to create a greater overall disability.³

Employee did not meet his burden to show fund liability because of his lack of credibility and because the evidence does not support that the pre-existing back injury synergistically combined with the primary injury.

Decision

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Robert Dierkes, issued September 28, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

3 Dr. Parmet also agreed to a 15% loading factor, but only if one included pre-existing disabilities of employee's liver cirrhosis and the loss of a kidney. Transcript, page 139. We agree with the administrative law judge that the evidence does not support that employee's liver cirrhosis and loss of a kidney pre-existed the primary injury. It is not clear that employee's liver cirrhosis existed or affected him at the time of the primary injury. Furthermore, at the time of the primary injury, employee still had both kidneys, with a benign mass on one of them. There is no evidence that the benign mass affected employee at the time of the primary injury.

-4-

Given at Jefferson City, State of Missouri, this 12th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No additional benefits are awarded.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: December 3, 2000.
5. State location where accident occurred or occupational disease was contracted: Callaway County.
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: Employee was refueling his truck when he slipped on diesel fuel and fell onto the ground, injuring his low back, right knee, and left hand.
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: low back, right knee, left hand.
14. Nature and extent of any permanent disability: 33.7 % permanent partial disability of the right knee; and 7.5 % permanent partial disability of the left hand referable to the thumb.

1. Compensation paid to-date for temporary disability: N/A.
2. Value necessary medical aid paid to date by employer/insurer? N/A.
3. Value necessary medical aid not furnished by employer/insurer? N/A.
4. Employee's average weekly wages: Sufficient for maximum rates.
5. Weekly compensation rate: $\ 599.96 for permanent total disability and $\ 314.26 for permanent partial disability.
6. Method wages computation: Stipulation.

None. The claim against the Second Injury Fund is denied in full.

Employee: Harold Williams (deceased)

Injury No. 00-170204

Substituted Claimant: Dustin Williams

Employer: Dakota Coast, Inc. (settled)

Additional Party: Second Injury Fund

Insurer: Virginia Surety Company, Inc. (settled)

Hearing Date: July 11, 2017

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and

Industrial

Relations of Missouri

Jefferson City, Missouri

An evidentiary hearing was held on this workers' compensation claim on July 11, 2017, in Jefferson City. Harold Williams ("Employee") passed away on May 10, 2013, from causes unrelated to the work injury. Dustin Williams ("Claimant"), Employee's son and his estate's personal representative, was substituted as claimant on January 30, 2015. Claimant appeared personally and by counsel, Rick Montgomery. Dakota Coast, Inc. ("Employer") previously settled their liability. The Treasurer of Missouri, as Custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties were afforded an opportunity to submit briefs/proposed awards, resulting in the record being completed and submitted to the undersigned on August 18, 2017. The hearing was held to resolve the following issues:

1. Whether the accident that occurred on December 3, 2000, was a substantial factor in causing an injury to Employee's left knee.
2. The liability, if any, of the Second Injury Fund for permanent partial or permanent total disability.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Callaway County and adjoining counties, including Cole County;

**Employee:** Harold Williams

**Injury No. 00-170204**

1. That the claim for compensation was filed within the time allowed by the statute of limitations, RSMo §287.430;
2. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
3. That Employee's compensation rates are $599.96 for temporary total disability benefits and permanent total disability benefits, and $314.26 for permanent partial disability benefits;
4. That Employee sustained an accident arising out of and in the course of his employment with Dakota Coast, Inc., on December 3, 2000, in Callaway County, Missouri;
5. That the notice requirement of RSMo §287.420 does not serve as a bar to the claim for compensation;
6. That Employer paid medical benefits in the amount of 25,968.91;
7. That Employer paid temporary disability benefits of 24,892.00; and
8. That Virginia Surety Company, Inc., fully insured the Missouri Workers' Compensation liability of Dakota Coast, Inc., at all relevant times.

Substituted Claimant, Dustin Williams (hereinafter "Claimant"), testified at the hearing in support of his claim. Additionally, Claimant offered the following exhibits into evidence, which were admitted without objection, with the exception of Exhibit 7, "Social Security Decision", which was not admitted into evidence following an objection by the Second Injury Fund.

1. Order Substituting Party - January 30, 2015;
2. Letters of Administration - May 14, 2014;
3. Certification of Death of Harold J. Williams;
4. Stipulation for Compromise Settlement - Injury No. 00-170204 approved 1/30/15;
5. Certified records from Division of Workers' Compensation for Injury No. 00-010204;
6. Certified records from the Division of Workers' Compensation for Injury Nos. 86-002183, 86-122378, and 87-146917;
7. NOT ADMITTED;
8. Deposition of Harold Williams taken July 29, 2003;
9. 60-day letter to Mr. Eric Doner dated November 14, 2016;
10. Allen J. Parmet, M.D., MPH - curriculum vitae;
11. Allen J. Parmet February 25, 2016 medical report;
12. Allen J. Parmet February 24, 2011 medical report;
13. Deposition of Allen Jeffrey Parmet, MD, taken August 22, 2012;
14. 60-day letter to Ms. Maggie Ahrens dated December 22, 2015;
15. Raymond F. Cohen, D.O., C.I.M.E., curriculum vitae;
16. Raymond F. Cohen, D.O., C.I.M.E., October 30, 2012 report;

Page 4

**Employee:** Harold Williams

**Injury No. 00-170204**

1. Raymond F. Cohen, D.O., C.I.M.E, December 11, 2007 report;
2. Moberly Rehab and Sports medical records;
3. Independence Regional Health Center medical records;
4. Randy Foster, D.O. medical records;
5. Moberly Radiology and Imaging medical records;
6. Gordon Moshman, M.D. medical records;
7. Center of Orthopedic Excellence, Inc. medical records;
8. Bone and Joint Sports Injury Clinic, Inc. medical records;
9. Boone Hospital Center medical records;
10. Thomas R. Turnbaugh, M.D. medical records;
11. Moberly Regional Medical Center medical records;
12. Columbia Orthopaedic Group medical records;
13. University Hospital and Clinics medical records;
14. University of Missouri Health Care medical records;
15. Missouri Department of Corrections medical records;
16. Northeast Correctional Center medical records.

Claimant settled Employee's primary claim with Employer on January 30, 2015, for a 33.7% permanent partial disability of the right knee, 5% permanent partial disability of the left knee, 15% permanent partial disability of the low back, and 7.5% permanent partial disability of the left hand referable to the thumb.

The Second Injury Fund offered no testimony, but offered the following exhibit into evidence:

A. List of criminal charges and sentences against Harold Williams Jr.

Harold Williams ("Employee") was born July 18, 1946. While Claimant offered little evidence or testimony with regard to Employee's educational or vocational history, the records show that Employee worked as a security aide at Fulton State Hospital in the 1980s prior to being incarcerated on January 1, 1990. Employee remained incarcerated until October 1998 when he began working as an over-the-road truck driver for RAMZ Trucking. Employee worked at RAMZ for about a year before going to work for Dakota Coast, Inc. ("Employer"), also as an over-the-road truck driver.

Prior to December 3, 2000, Employee sustained previous injuries. Employee fractured his left ankle in 1976. He injured his shoulder and back in a motor vehicle accident in 1983. There is no evidence Employee suffered any ongoing disability referable to either his ankle or shoulder prior to December 8, 2000. Employee also suffered a series of back strains during takedown incidents while working as a security aide at Fulton State Hospital during the 1980s. None of these resulted in any settlement of permanent partial disability.

Page 5

**Employee:** Harold Williams

**Injury No. 00-170204**

On October 18, 1986, Employee injured his back again when he fell at Fulton State Hospital. Treatment for this injury culminated in a discectomy surgery at L4-5. This injury was workers' compensation Injury No. 86-122378 and settled for 20% of the body as a whole, referable to the low back. While Department of Corrections records reveal further back treatment during Employee's incarceration in the 1990s, including bracing, medication, and a TENS unit, Employee minimized his prior back history in his July 29, 2003 deposition. He testified that his back injury at Fulton State was not serious and that he "just pulled muscles midways in my back". He testified that he thought he had gotten a shot for that injury, but he did not mention any surgery or other subsequent treatment.

On December 3, 2000, Employee sustained an injury while working as an over-the-road truck driver for Employer. Employee slipped on an oil spill, injuring his right knee, low back, and left thumb. Employee was evaluated the following day by Dr. Moshman who assessed right knee and left thumb pain. Dr. Foster, Employee's primary care physician, subsequently diagnosed right knee, left thumb, and back pain on January 9, 2001. Dr. Foster referred Employee to Dr. Galbraith for knee treatment and prescribed physical therapy for Employee's low back and thumb. Dr. Galbraith evaluated Employee on January 17, 2001, and ordered low back and right knee MRIs. Employee's low back MRI revealed a disk bulge and mild spinal stenosis at L4-5, but no disc herniation or acute spinal process. The MRI also revealed a right renal mass unrelated to the December 3, 2000 injury, and Employee underwent a radical right nephrectomy for a cystic mass for the right kidney on February 13, 2001.

After failed conservative treatment, Dr. Galbraith ultimately performed a right knee diagnostic arthroscopy with partial medial meniscectomy on April 4, 2001. After knee symptoms persisted, Dr. Allen performed an additional right knee arthroscopy for a right medial collateral ligament ganglion cyst excision on August 16, 2001.

Employee also received treatment for low back pain following his December 3, 2000 work accident. Dr. Trecha initially evaluated Employee for low back complaints on April 9, 2001. Dr. Trecha noted degenerative disc disease with slight lumbar stenosis at L4-5, and he recommended conservative treatment. Caudal steroid injections were performed on April 11, 2001, May 19, 2001, and June 6, 2001. When Employee's complaints persisted, Dr. Trecha recommended Employee finish knee treatment before proceeding with any additional back treatment.

Prior to receiving any additional treatment, Employee was incarcerated on felony drug charges. Employee received no orthopedic treatment from 2002 to 2004 while incarcerated. Dr. Trecha re-evaluated Employee's back pain on December 20, 2004, after Employee was released on parole. Dr. Trecha opined Employee was a candidate for a discogram to further define his pathology, but only after he quit smoking. Dr. Trecha later recommended a potential decompression and fusion at L4-L5 once Employee finished knee treatment, but Employee was

Page 6

**Employee:** Harold Williams

**Injury No. 00-170204**

once again incarcerated on a parole violation in 2005 until June 2007.

Dr. Komes evaluated Employee on May 9, 2008, for a disability consultation. Dr. Komes assessed a "[h]istory of a back injury with no significant neurological findings." Dr. Komes further opined that "[b]ased on today's evaluation, there are no significant abnormalities that prohibit sitting, standing, walking, lifting, carrying or handling objects, hearing, speaking, or traveling. Secondary gain issues need to be considered as the various workers' compensation claims."

Dr. Trecha again evaluated Employee on September 12, 2008, and recommended a further MRI. Employee was subsequently diagnosed with cirrhosis and liver lesions in 2009. Employee was once again incarcerated on September 30, 2009, and remained so until his death. Claimant testified that Employee was in a wheelchair throughout the last year of his life.

Claimant's counsel retained Dr. Cohen for an independent medical examination on December 11, 2007. Dr. Cohen diagnosed right knee, left thumb, and low back injuries as a result of the December 3, 2000 work injury. Dr. Cohen opined that Employee was not at maximum medical improvement and needed additional treatment. Assuming Employee received no further treatment, Dr. Cohen rated a 45% permanent partial disability for Employee's right knee and a 15% permanent partial disability for Employee's left thumb. With regard to Employee's low back, Dr. Cohen rated a 35% body-as-a-whole permanent partial disability with 25% referable to the primary injury and 10% pre-existing. Dr. Cohen gave work restrictions against prolonged standing, walking, and sitting. He also restricted Employee from lifting more than 10-15 pounds, climbing, or working on ladders. Dr. Cohen opined that Employee was permanently and totally disabled from his employment as an over-the-road truck driver or similar employment, but that he could be employed doing sedentary work if available.

Dr. Cohen evaluated Employee again on December 7, 2011, in Jefferson City Correctional Center. He authored a report based on this evaluation on October 30, 2012, seven months prior to Employee's death. Dr. Cohen opined that Employee was still in need of additional treatment for both his low back and right knee; he was not at maximum medical improvement for his December 3, 2000 work injury. He added diagnoses referable to the primary injury of right lower extremity radiculitis and left knee strain/sprain secondary to compensatory gait from the right knee trauma. Dr. Cohen now apportioned 20% of the total 35% lower back permanent partial disability to pre-existing conditions. He maintained his opinion that Employee was precluded from working as an over-the-road truck driver or similar employment, but that he was employable doing sedentary work.

Dr. Parmet evaluated Employee for an independent medical examination at the request of Employer's counsel on February 24, 2011. Dr. Parmet diagnosed right knee, mid-back, and left thumb injuries as a result of the December 3, 2000 work injury. He opined that the mid-back and

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Harold Williams

Injury No. 00-170204

left thumb injuries resolved without sequelae and assessed a 15% permanent partial disability with regard to Employee's right knee. Dr. Parmet noted there was currently no evidence of instability or need to wear a brace. He further noted it was difficult to examine Employee's knees because he was extremely guarded and resisted range of motion testing.

With regard to Employee's low back, Dr. Parmet noted that Employee represented to him that he never had any low back problems before December 8, 2000. Dr. Parmet testified that Employee's Waddell signs were 5/5 during his lumbar spine examination and that Employee was magnifying his symptoms. Dr. Parmet noted Employee was attempting to be evasive. He believed that Employee's presentation compared to his objective findings suggested significant secondary gain motive. Dr. Parmet testified in his deposition that it was possible Employee was permanently and totally disabled from a combination of his conditions, but that he would need to review additional records on Employee's conditions unrelated to the primary injury. These included Employee's liver cirrhosis as identified by a 2009 biopsy and Employee's kidney condition as a result of a 2001 nephrectomy procedure.

Dr. Parmet was subsequently retained by Claimant's counsel to evaluate Employee's pre-existing conditions and Second Injury Fund liability. Dr. Parmet rated a 15% body-as-a-whole permanent partial disability referable to the lumbar spine as a result of Employee's 1987 surgical discectomy and progressive degeneration. Dr. Parmet also opined that Employee had a permanent 35% body as a whole permanent partial disability as a result of the loss of the kidney that occurred in 2001, after Employee's primary injury. He also rated a 25% body-as-a-whole permanent partial disability from severe cirrhosis identified by a 2009 liver biopsy, over eight years after the primary injury. He gave no opinion with regard to employability.

Whether the accident that occurred on December 3, 2000, was a substantial factor in causing an injury to Employee's left knee. Dr. Cohen evaluated Employee initially on December 11, 2007, seven years after the December 3, 2000 accident. Dr. Cohen's evaluation at that time did not uncover any problems with Employee's left knee at that time. A left knee diagnosis was first made by Dr. Cohen on October 30, 2012, 11 years after the original accident, and Dr. Cohen was silent on any left knee disability. I find that the December 3, 2000 accident was not a substantial factor in causing an injury to Employee's left knee.

Liability of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits. Claimant alleges that Employee was permanently and totally disabled and is seeking permanent total disability benefits from the Second Injury Fund.

A claimant in a workers' compensation proceeding has the burden to prove all of the elements of his claim to a reasonable probability. *Hoven v. Treasurer*, 414 S.W.3d 676, 678 (Mo. App. E.D. 2013). Proof can only be made through competent and substantial evidence and cannot rest on speculation. *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App.

**Employee:** Harold Williams

**Injury No. 00-170204**

1974). 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 Second Injury Fund provides compensation for previously existing disabilities, not increased disabilities caused by post-accident worsening when that worsening was not caused by or aggravated by the last injury. *Lawrence v. Joplin R-VII School Dis.*, 834 S.W.2d 789 (Mo. App. 1992). Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent, and thus, when payments for permanent partial or permanent total disability should be calculated. *Cardwell v. Treasurer of State*, 249 S.W.3d 902, 910 (Mo. App. 2008).

No expert has given an opinion in this matter that Employee was permanently and totally disabled from any employment due to his injuries. While Dr. Cohen opined that Employee was permanently and totally disabled from his previous employment of approximately eighteen months as an over-the-road truck driver, or any similar jobs, he further stated that Employee could be employed in sedentary work if such work were available. This statement is significant in the absence of additional testimony from a vocational expert, and Dr. Cohen reiterated this opinion in his subsequent October 30, 2012 report.

Dr. Parmet originally testified that it was possible Employee was unemployable, but he stated he would need more information on Employee's liver and kidney conditions prior to making any employability determination. When Dr. Parmet did eventually evaluate and rate Employee's alleged pre-existing conditions in his subsequent February 25, 2016 report, he still did not opine on permanent total disability.

Dr. Parmet also improperly identified Employee's kidney and liver cirrhosis conditions as pre-existing disabilities. Dr. Parmet's liver disability rating was based almost solely on the results of a biopsy that occurred in 2009, over eight years after the December 3, 2000 work injury. There was no evidence that Employee's liver was disabling prior to December 3, 2000, as it appears he was successfully performing his job as an over-the-road truck driver for approximately 18 months prior to his primary work injury. Accordingly, there is no basis for finding that Employee's liver condition was a pre-existing disability.

Similarly, Dr. Parmet erroneously rated pre-existing kidney disability as a result of a 2001 nephrectomy for a cystic adenoma of the kidney. While he noted that the condition may have represented a benign or very low-level malignancy tumor, he nevertheless rated a 35%

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Harold Williams

Injury No. 00-170204

body-as-a-whole permanent partial disability for the loss of an entire kidney. Employee's disability as of December 3, 2000, however, was not the "loss of an entire kidney", but rather a possible benign or very low-malignancy tumor. The condition as it existed prior to the primary injury is what is relevant to Second Injury Fund liability, and there is no evidence that the tumor was causing Employee any disability prior to December 3, 2000.

Without these disabilities, Dr. Parmet's reports provide little support for a permanent total disability finding. What remains is a primary right knee meniscus injury combining with a low back injury that Employee testified in his deposition was not a significant problem for him prior to December 3, 2000. Further, like Dr. Komes, Dr. Parmet identified Employee as having a significant pain magnification problem and secondary gain motive.

In addition to the lack of expert support for a finding of permanent total disability, there is no evidence that Employee ever reached maximum medical improvement for his December 3, 2000 work injuries. The Second Injury Fund does not owe benefits until a claimant reaches maximum medical improvement for his injuries. Dr. Cohen's October 30, 2012 report, issued less than seven months before Employee passed away, recommended further treatment for Employee's low back and right knee injuries, stating: "[Employee]'s injury at work was a substantial factor in his injuries and need for treatment. It continues to be my medical opinion that he is in need of additional treatment." Specifically, Dr. Cohen opined that Employee required right knee and low back MRIs and orthopedic evaluation for potential surgery. The need for additional treatment for both major conditions from Employee's primary injury strongly suggests Employee was not at maximum medical improvement as of October 30, 2012, and never reached maximum medical improvement prior to his death. Accordingly, benefits for permanent disability had not yet accrued at the time of Employee's death.

I find that Employee was not at maximum medical improvement for the injuries sustained as a result of the December 3, 2000 work accident, and, therefore, the Second Injury Fund has no liability for permanent benefits.

FINDINGS OF FACT AND RULING OF LAW

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. The work accident of December 3, 2000, was a substantial factor in the cause of an injury to Employee's right knee, lumbar spine, and left thumb.

1. The work accident of December 3, 2000, was not a substantial factor in the cause of any injury to Employee's left knee.

1. As a direct result of the injuries Employee sustained in the work accident of December 3, 2000, Employee sustained a permanent partial disability of 7.5% of the

Page 10

**Employee:** Harold Williams

**Injury No. 00-170204**

Left hand referable to the thumb, and 33.7% permanent partial disability of the right knee.

1. Employee was not permanently and totally disabled from any employment as a result of his December 3, 2000 injuries and pre-existing disability.

1. The Second Injury Fund is not liable for payment of permanent disability benefits until a claimant has reached maximum medical improvement for his primary injuries.

1. Prior to his death, Employee had never reached maximum medical improvement for the injuries he sustained to his low back and right knee as a result of the December 3, 2000 work accident.

1. Because Employee never reached maximum medical improvement for the low back and right knee injuries work injuries, there can be no Second Injury Fund liability for permanent disability as a result of these injuries.

1. Employee's only pre-existing disability was a lumbar spine condition as a result of a discectomy surgery at L4-5.

1. Claimant has failed to prove a synergistic effect between the pre-existing lumbar spine injury and the injuries from the October 3, 2008 accident.

1. The test for permanent total disability is whether Employee could compete in the open labor market, not merely whether Employee could return to his previous employment.

1. The Second Injury Fund has no liability in this case.

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

I certify that on 9-28-17 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

**Made by** [Signature]

Robert J. Bierkes

Chief Administrative Law Judge

Division of Workers' Compensation

By [Signature]