Michael Thomson v. Payne Electric

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 05-041432

**Employee:** Michael Thomson

**Employer:** Payne Electric (Settled)

**Insurer:** Amerisure (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.

Employee claims an injury resulting when he missed the last rung of a ladder while descending and landing on his right foot. Employee did not feel pain at the time, but "felt a stretch ... [and] discomfort." Tr., p.120. Employee felt pain two days later and received medical treatment thereafter.

The administrative law judge found that an accident occurred. However, regarding causation, the administrative law judge found that the accident did not cause the "resulting medical condition" as defined in RSMo, 287.020.3, RSMo, Supp. 2005.

Employee appealed the administrative law judge's decision, arguing that the administrative law judge erred in finding that the accident did not cause the resulting medical condition. Specifically, employee argued that the administrative law judge relied on hearsay over credible expert testimony.

For the following reasons, we agree with the result of the administrative law judge's decision.

We note, however, that the administrative law judge used law that was not yet in effect on the date of the injury. The date of injury in this matter was April 26, 2005, before substantial amendments that took effect on August 28, 2005. Therefore, we must apply the law prior to the 2005 amendments in this matter. Section 287.020.3, RSMo, as it existed in April 2003, provided:

MNKOI 0000714566

Injury No.: 05-041432

Employee: Michael Thomson

- 2 -

(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. The injury must be incidental to and not independent of the relation of employer and employee. Ordinarily, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life[.]

Section 287.020.2, RSMo, provided:

"An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor."

Thus, the appropriate question is whether employee's April 26, 2005 accident of missing a ladder rung was "a substantial factor in the cause of the resulting medical condition or disability" or simply "a triggering or precipitating factor."

Even pursuant to the applicable law, Dr. Shelby Kopp's opinion persuades this Commission to find that employee failed to meet his burden to show medical causation. We find persuasive that employee's bilateral avascular necrosis in his hips caused his medical condition; the incident of missing a step was simply a triggering or precipitating factor.

We note that both Dr. Robert Pierron and Dr. Michael Burns agreed that there was a possibility of a subchondral fracture. However, Dr. Burns never saw a fracture line and Dr. Pierron never mentioned the possibility of a fracture after reviewing the MRI taken on September 8, 2005. Dr. Pierron's impression after reviewing the new MRI was, "Findings compatible with bilateral avascular necrosis of the hips. The right side is affected to a greater extent than the left which would correspond with the patient's clinical presentation." Tr., p. 144.

Injury No.: 05-041432

Employee: Michael Thomson

- 3 -

We do not find persuasive Dr. David Volarich's or Dr. Robert Sciortino's opinions regarding medical causation. After employee's initial visit with Dr. Sciortino, Dr. Sciortino never again mentioned the possibility of a fracture. Instead, Dr. Sciortino focused on employee's avascular necrosis.

Therefore, employee failed to meet his burden regarding medical causation.

**Comments by the Administrative Law Judge**

We disavow particular comments by the administrative law judge in this matter regarding medical causation, namely, that:

1. "Falling off a single rung of a ladder, hardly supports Dr. Volarich's assertion of an 'impaction injury.'" Award, p. 12.
2. "Again, employee's minor fall is not a reasonable supposition to impose liability of surgical treatment of a chronic condition." Award, p. 12.

The administrative law judge's comments regarding medical causation were not appropriate as a basis for determining a lack of medical causation. "[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." *Van Winkle v. Lewellens Prof'l Cleaning, Inc.*, 258 S.W.3d 889, 897 (Mo. App. 2008) (quoting *Elliott v. Kan. City School Dist.*, 71 S.W.3d 652, 658 (Mo. App. 2002)). The *Van Winkle* court continued, "[a]ccordingly, where expert medical testimony is presented, 'logic and common sense,' or an [administrative law judge's] personal views of what is 'unnatural,' cannot provide a sufficient basis to decide the causation question, at least where the [administrative law judge] fails to account for the relevant medical testimony." *Van Winkle*, 258 S.W.3d at 897-98.

As opposed to relying on the administrative law judge's statements regarding medical causation, we rely on the statements and opinions of the medical experts in this matter, as stated above.

Because we do not find that employee established medical causation in this matter, we must deny the claim. All other issues are moot.

**Decision**

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

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued May 31, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Employee: Michael Thomson

Given at Jefferson City, State of Missouri, this $\qquad$ day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Curtis E. Chick, Jr., Member

Attest:


Injury No.: 05-041432

Employee: Michael Thomson

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Pursuant to the law predating the 2005 amendments, the law is to be liberally construed with a view to the public welfare. Section 287.800, RSMo 2000. "Any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee." *Van Winkle v. Lewellens Prof'l Cleaning, Inc.*, 258 S.W.3d 889, 894 (Mo. App. 2008) (quoting *Schhoemehl v. Treasurer of State*, 217 S.W.3d 900, 901 (Mo. 2007)).

In light of the liberal construction mandate, I disagree with the majority's medical causation analysis. I am persuaded by Dr. David Volarich's opinion that employee's April 26, 2005 accident was "the substantial contributing factor as well as prevailing or primary factor causing" employee's resulting medical condition. *Tr.*, p. 226. Here, there is some doubt regarding whether an acute injury took place. While Dr. Volarich, opined that there was an acute fracture on top of avascular necrosis, other experts only suggested a "possible" fracture. In resolving the doubt in employee's favor, there was an acute fracture. Dr. Volarich addressed this fracture as the substantial contributing factor in employee's medical condition. Dr. Volarich also properly rated employee's disabilities and found synergy. Dr. Robert Sciortino also found "an acute process as evidenced by [employee's] MRI scan of May of 2005." *Tr.*, p. 147. Dr. Sciortino ultimately agreed with Dr. Volarich's causation opinion and opined that employee's April 26, 2005 work injury was a substantial factor in the cause of the resulting medical condition or disability.

Based on the evidence in the record, I find that employee's injury arose out of and in the course of employment. In addition to Dr. Volarich's persuasive disability ratings and finding of synergy, I find persuasive that employee was permanently and totally disabled due to the combination of the April 26, 2005 injury and the preexisting injuries. I further find that the Second Injury Fund should be liable for compensation in the amount of the increase in disability caused by the synergistic effect resulting from the combination of the April 26, 2005 injury and employee's preexisting injuries.

I would reverse the administrative law judge's award denying compensation. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

injury NO.: 05-041432

Employee: Michael Thomson

Dependents: N/A

Employer: Payne Electric (Settled)

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

Insurer: Amerisure (Settled)

Hearing Date: 2/27/18

Injury No.: 05-041432

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: JPK

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No (See narrative award)

1. Was there an accident or incident of occupational disease under the Law? Yes (Alleged)

Claimant's missing the bottom rung of the ladder was undisputed in the record.

1. Date of accident or onset of occupational disease: 4/26/05

1. State location where accident occurred or occupational disease was contracted: St. Louis (Alleged)

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

Claimant was coming down a ladder and missed the last step.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Right hip

1. Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer? $146.27

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 675.90 / \ 354.05
4. Method wages computation: Stipulated

COMPENSATION PAYABLE

1. Amount of compensation payable:

N/A

1. Second Injury Fund liability: N/A

TOTAL:

N/A

1. Future requirements awarded:

N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Nile D. Griffiths

This case involves two separate Claims for Compensation alleged by Claimant against the Second Injury Fund. The first injury is a tear of the right rotator cuff and long head biceps tendon tear, suffered by Claimant, identified by Injury Number 04-076514 with a reported accident date of 7/20/04. The second case is an injury to the right hip, identified by Injury Number 05-041432, with a reported accident date of 4/26/05. Claimant seeks permanent total disability in the second case. These cases may be referred to hereinafter as the first and second cases, respectively and chronologically.

The testimony and exhibits in this record constitute the evidence in each Claim. Separate awards are issued on each claim.

On 2/27/18, the parties appeared for a hearing. Michael Thomson ("Claimant") appeared in person and with Attorney Nile D. Griffiths. Assistant Attorney General Kristen Frazier represented the Second Injury Fund. The Employer, Payne Electric Company, and its Insurer, Amerisure Companies, previously settled with Claimant and did not participate in the hearing.

1. The Employer was operating subject to Missouri's Workers' Compensation Law at all times, heretofore.
2. Claimant was employed at all times relevant herein.
3. The Employer received proper notice of the claim.
4. Claimant filed the claim within the time allowed by law.
5. The City of St. Louis is the proper venue.
6. The average weekly wage at the date of injury was sufficient to qualify for rates of 675.90 for temporary total disability (TTD), and 354.05 for permanent partial disability (PPD).
7. In the first case, Employer paid $25,702.23 in medical expenses and zero TTD.
8. In the second case, Employer paid $146.27 in medical expenses and zero TTD.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Prior Medical Records

2) The Stipulation and records relating to Injury No. 04-076514.

3) The Stipulation and records relating to Injury No. 05-041432.

4) The deposition of Mr. James England dated May 15, 2013

5) The deposition of Dr. David Volarich dated May 21, 2013

6) The deposition of Mr. Michael Thomson dated December 28, 2012.

The Second Injury Fund introduced, and had admitted into evidence, the following Exhibits:

I) Dr. Sciortino treatment Records

II) Claimant deposition 2007

III) SSM Rehab

IV) Reliable Imaging (2 pages)

1) In the first case, liability of the Second Injury Fund of permanent partial disability.

2) In the second case, the occurrence of an accident event.

3) In the second case, medical causation.

4) In the second case, liability of the Second Injury Fund for permanent total disability.

Claimant was born in Jennings, Missouri on 1/28/51. He has lived in the St. Louis area all of his life. Claimant graduated from Normandy High School in 1969 and his favorite subjects were math and art. He learned electrician work through on-the-job training and an apprenticeship from 1995 - 2000.

Claimant was employed by Payne Crest Electric from 2001 or 2002 through the time of his injury in April of 2005. He was a member of IBEW Local No. 1. He earned $\ 42.00 per hour.

1) Rotator cuff tear and biceps tendon tear - Dr. Michael Nogalski operated on 8/10/04 and performed an arthroscopic subacromial decompression, excision of biceps stump, and debridement of glenoid labrum with medial rotator cuff repair. Dr. Nogalski released him to full duty on $1 / 18 / 05$ and placed him at MMI.

2) Chiropractic treatment for the neck in 1974.

3) Bilateral shoulder strain, right bicipital tendonitis and mild cervical strain as a result of tripping over some wire and falling on his hands on 12/3/02.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 05-041432

4) In 1994, right thumb and hand crush injury after which the right nail grew out of the side of his thumb on 3 occasions.

5) On 5/1/96 Dr. Emil DiFilippo took him to surgery and performed a right knee arthroscopy, partial medial meniscectomy, and joint debridement.

6) On 8/31/99, Dr. DiFilippo recommended an MRI, which showed a medial meniscal tear.

7) Dr. Robert Pierron, on 10/17/05 noted degenerative arthritis in both knees.

First Case

On 7/20/04, Claimant was injured at work when he attempted to grab a conduit pipe bender that was getting away from him. He reported that as he grabbed it, he felt a sharp snap in his right upper biceps area. Thereafter, he had pain in the right biceps and weakness in the right arm. He was examined by Lewis Fischer, M.D. There was considerable tenderness to firm palpation of the upper biceps muscle. There was a balled-up appearance to the right biceps muscle as compared to the left. Flexing the right elbow against resistance gave less than 50% strength on the right side compared to the left. Dr. Fischer believed Claimant had torn his right biceps tendon and referred him to an orthopedic specialist for further evaluation and treatment.

He was seen by Michael Nogalski, M.D. on 7/21/04. X-rays of the right shoulder, humerus, and elbow showed no specific abnormalities. Dr. Nogalski's impression was a torn long head biceps and he ruled out a rotator cuff tear. An MRI done on 7/23/04, showed a complete tear of the rotator cuff. The integrity of the long head of the biceps tendon was not confirmed. It also showed acromioclavicular and glenohumeral osteoarthritis.

Claimant returned to Dr. Nogalski on 7/28/04. Dr. Nogalski recommended rotator cuff repair. On 8/10/04, Dr. Nogalski performed an arthroscopic subacromial decompression, excision of the biceps tendon stump and debridement of the glenoid labrum, and "mini" open repair of the rotator cuff. Claimant followed up on 8/17/04, and was prescribed physical therapy three times a week for one week.

Claimant returned to Dr. Nogalski on 9/7/04, and he reported his shoulder was fairly sore. He was to continue physical therapy and use Ibuprofen as needed. He was allowed light duty work with no use of the right arm except for paperwork. He had his right arm in a sling in the workplace.

After several follow-up visits, on 1/18/05, Claimant returned to Dr. Nogalski. He had full forward flexion and abduction and almost normal strength. He was discharged from therapy, but he was to remain on a home exercise program. Claimant was released from care.

Claimant returned to Dr. Nogalski on 4/15/05. He was at maximum medical improvement. Dr. Nogalski felt he had 8% permanent partial disability of the right upper extremity at the level of the elbow.

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On 4/26/05, Claimant was coming down a ladder and missed the last step. He felt a stretch in the right thigh but no pain. The second day he felt discomfort, and on the third day, he felt extreme pain when he walked. He developed a limp over the next couple of days.

On 4/29/05, he was unable to work and sought treatment with Dr. Shelby Kopp at Concentra. He reported a sharp pain in his right hip area. Claimant denied any prior problem in this area. He noted no paresthesias, but he had discomfort sleeping at night. He used his hands to raise his right leg up onto the table. He had sudden and severe pain of very short duration in lowering the leg. X-rays of the hip were unremarkable. Examination showed no swelling or ecchymosis. Dr. Kopp's diagnosis was right hip pain not work related. Dr. Kopp recommended Claimant see his private doctor for treatment.

That same day, Claimant was seen by Dr. Vikram Patney. He reported excruciating pain with weight bearing or rotating of the leg. Dr. Patney prescribed Vicodin and Flexeril and referred him to physical therapy three times a week for three weeks.

He began therapy on 5/2/05. He reported episodes of sharp pain, which he rated as 10/10, with movements of his right lower extremity and weight bearing activities. The therapist reported Claimant presented with signs and symptoms which were consistent with an acute right hip strain.

Claimant returned to Dr. Patney on 5/5/05. He reported his hip pain got better and then got worse. His medications were adjusted and he was referred to an orthopedist.

On 5/11/05, Claimant was seen by Robert Pierron, M.D. for evaluation of his right hip. After examination, Dr. Pierron recommended an MRI of the right hip, which was completed on $5 / 13 / 05. He followed up with Dr. Pierron on 5 / 18 / 05$. It was grossly abnormal with a small area that appeared to be equivalent to avascular necrosis on the superior portion of the left femoral head, which was not the site of the injury. There was a larger area of irregularity suggesting avascular necrosis, a possible subchondral fracture on the right hip with an adjacent bone edema of the lateral side of the femoral head and neck. This suggested an acute injury probably on top of an underlying area of avascular necrosis, but now with subchondral fracture and bone edema. Dr. Pierron recommended Claimant be protected from full weight bearing on the right side for at least three months.

On 8/16/05, Claimant was seen by Michael Burns, M.D. for a second opinion regarding the right hip. Dr. Burns reviewed x-rays and noted an area of what appeared to be avascular necrosis in the femoral head. The MRI revealed possible microfracture involving the right femoral neck along with an insufficiency fracture involving the femoral head in the avascular region. Dr. Burns had nothing new to offer and suggested Claimant follow up with Dr. Pierron.

When Claimant returned to Dr. Pierron on 9/1/05, new films showed some sclerosis along the inferior portion of a cystic area in the femoral head. A new MRI of the pelvis showed

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 05-041432

findings compatible with bilateral avascular necrosis of the hips; the right side affected to a greater extent than the left.

On 9/27/05, Claimant was seen by Robert Sciortino, M.D. for an independent medical examination and second opinion. New x-rays showed some subtle suggestions of avascular necrosis, but no evidence of a subchondral fracture or any significant deformity in the femoral head. His hip range of motion was essentially symmetrical, but he had some pain with extreme motion. Dr. Sciortino's impression was acute subchondral fracture of the right femoral head on top of bilateral avascular necrosis. Dr. Sciortino believed Claimant needed further treatment and needed to stay on crutches for six months to a year from the initial injury. Dr. Sciortino believed the described work injury was a substantial cause for the needed treatments and tests. Claimant was able to do sedentary work only.

A year later, on 9/6/06, Dr. Sciortino recommended a new MRI to determine the extent of his avascular necrosis and whether it was resolving. The examination remained unchanged on 9/15/06. The MRI was reviewed and showed persistence of the AVN of his hip. Dr. Sciortino recommended core decompression, and Claimant agreed.

On 9/26/06, Dr. Sciortino performed a core decompression of the right femoral head and insertion of bone graft substitute. On 12/26/06, Claimant reported his hip was somewhat better. He was allowed to put weight on it, tolerated.

Claimant began physical therapy on 1/8/07. He was seen for 17 visits and reported overall 50% improvement in function and pain level. He was discharged on 3/25/07, with instructions in a home exercise program. Claimant never returned to work.

Opinion Evidence

David Volarich, D.O.

Claimant offered the deposition testimony of David Volarich, D.O. as Exhibit 5. He was deposed on 5/21/2013. Dr. Volarich examined Claimant on or about 2/23/12. His diagnoses that were present prior to 4/26/05, included:

1) Internal derangement right shoulder - S/P arthroscopic subacromial decompression, excision of the biceps stump, debridement of the labrum, and open rotator cuff repair.

2) Chronic cervical syndrome

3) Right thumb nail bed injury.

4) Right knee internal derangement - S/P arthroscopic partial medial meniscectomy and joint debridement.

5) Left knee internal derangement - S/P arthroscopic partial medial meniscectomy, chondroplasty of the patellofemoral joint, and excision plica.

6) Bronchitis and reversible obstructive airways disease.

7) Hypertension with early hypertensive retinopathy.

Within a reasonable degree of medical certainty, he assigned ratings for the injuries prior to the 4/26/05. The ratings assigned were:

WC-32-R1 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 05-041432

1) 33% permanent partial disability of the right upper extremity rated at the shoulder due to the internal derangement that required arthroscopic subacromial decompression, excision of a biceps tendon stump, debridement of the labrum, and open rotator cuff repair.

2) 15% permanent partial disability of the body as a whole rated at the cervical spine due to his cervical spine syndrome.

3) 10% permanent partial disability of the right hand due to the nail bed injury.

4) 40% permanent partial disability of the lower right extremity rated at the knee due to the internal derangement that required partial medial meniscectomy and debridement of the joint.

5) 40% permanent partial disability of the left lower extremity rated at the knee due to the medial meniscus tear and chondral injuries.

6) 15% permanent partial disability of the body as a whole rated at the pulmonary system due to his chronic bronchitis and reversible obstructive airways disease.

7) 15% permanent partial disability of the body as a whole rated at the cardiovascular system due to his hypertension.

His diagnosis for the second case, the work injury of 4/26/05, was "right femoral head acute subchondral stress fracture and aggravation of underlying avascular necrosis, status post core decompression of the right femoral head with bone graft substitute." He found that the incident that occurred when "Claimant missed the last rung on the ladder, slipped to the ground, falling about six to eight inches, landing on his feet, right more than left, causing an impaction-type jamming incident to the right hip. That was the substantial contributing factor as well as the primary factor causing the acute subchondral femoral head fracture and aggravation of avascular necrosis that ultimately required surgical repair."

Dr. Volarich rated Claimant at 25% permanent partial disability of the lower right extremity at the hip due to the subchondral fracture from the impact trauma to the hip. The rating accounted for the aggravation of his underlying avascular necrosis that ultimately required surgical repair that included core decompression and bone graft substitute.

Based on his medical evaluation, Dr. Volarich did not believe Claimant could return to any work.

Vocational Opinions

James M. England Jr.

Claimant offered the deposition testimony of James M. England, Jr. as Exhibit 4. He was deposed on 5/15/13. Mr. England evaluated the Claimant on or about 10/20/09, and issued a report dated 10/26/09. Mr. England is a licensed vocational rehabilitation counselor.

Mr. England noted that, "In a report dated 6/12/07, Dr. Nogalski stated he reviewed Mr. Thomson's records with respect to his right hip and claimed injury of 4/26/05. Dr. Nogalski believed Mr. Thomson's activities as claimed would not be substantial or the prevailing factor in his current right hip condition. The initial descriptions of the event were essentially those of a

WC-32-R1 (6-01)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 05-041432

stretch or a strain sensation; there was a limp, and then increased pain up to two days afterwards. This did not appear to be the sign of an acute injury and would be most compatible with an avascular necrosis process manifesting itself as symptomatic. There was no collapse or subchondral collapse of the bone which would imply a fracture or disruption of the femoral head. Therefore, this argued much more strongly against any sort of traumatic etiology. It was Dr. Nogalski's opinion that Claimant had idiopathic avascular necrosis, and it was not caused by a traumatic issue."

Mr. English noted that Claimant has some transferable skills and knowledge that could be utilized down to light levels of exertion if he could actually function at that level. From a physical standpoint, he seems to be functioning at less than a sedentary level of exertion and he has trouble not only with being on his feet but also has difficulty just sitting for more than fairly short amounts of time without the need to get up and move around because of pain.

Mr. English concludes," Considering Mr. Thomson's age of 58 combined with all of his medical problems, I believe that he is likely to remain totally disabled from a vocational standpoint and that he would not be a good candidate for vocational rehabilitation assistance. His disability is obviously due to a combination of his pre-existing medical problems and injuries combined with the primary injuries."

RULINGS OF LAW

Section 287.220 RSMo. creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment if the employee becomes unemployed." Id. Missouri courts have used the following test for determining whether a pre-existing disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which a condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corporation, 211 S.W.3d 629,637 (Mo.App. 2007)

A claimant in a workers' compensation proceeding has the burden of proving all elements of his claim to a reasonable probability. Cardwell v. Treasurer of the State of Missouri, 249 S.W.3d 902,911 (Mo.App. E.D. 2008). In order for a claimant to recover against the Second Injury Fund, he must prove that he sustained a compensable injury, referred to as "the last injury," which resulted in permanent partial disability. Section 287.220.1 RSMo. A claimant must also prove that he had a pre-existing permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to his employment or re-employment should he become unemployed; and (3) equals a minimum of 50 weeks of

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 05-041432

compensation for injuries to the body as a whole or 15% for major extremities. *Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund*, 272 S.W.3d 267, 272 (Mo.App.E.D. 2008) (Citations omitted). In order for claimant to be entitled to recover permanent partial disability benefits from the Second Injury Fund, he must prove that the last injury, combined with his pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717-18 (Mo. Banc 2004). Claimant did not meet the burden imposed by law.

Claimant suffered considerable permanent partial disability with respect to each of the pre-existing conditions. His pre-existing disability referable to these conditions was serious enough to be hindrances or obstacles to employment for purposes of §287.220. Claimant's pre-existing disabilities to his neck, shoulder, cervical spine, right hand, right knee and left knee affected his job performance before the 7/20/2004 injury. Claimant's pre-existing disabling conditions have the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of these pre-existing conditions. See *Wuebbeling v. West County Drywall*, 898 S.W.2d 615, 620 (Mo.App.1995).

First Case

Here, Claimant has met the burden imposed by law.

I find Claimant sustained a compensable work injury on 7/20/2004, which resulted in permanent partial disability equivalent to 35% of the right upper extremity, as evaluated by Dr. Volarich. Claimant testified he continues to have soreness and cannot lift his arm above his shoulder. The total number of weeks is 81.20 weeks.

After reviewing the evidence and listening to the testimony, I find the following disabilities to exist prior to July 2004:

Total weeks for pre-existing disabilities: 151.00

The bronchitis, reversible obstructive airways disease and hypertension were not considered in the determination because I felt there was insufficient evidence that they were a hindrance to employment or reemployment.

The Second Injury Fund is liable for the following:

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 05-041432

First Work Injury

- 81.20 weeks for last injury

- 151.00 weeks for pre-existing injuries

- 232.20 weeks

- X 20%

- 46.44 weeks of greater disability

- X 354.05 Stipulated PPD rate

- 16,442.08 permanent partial disability due Claimant

Second Case

RSMo. 287.020.2 defines the word "accident" as "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."

RSMo. 287.020.3 states "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.

RSMo. 287.020.6 defines "total disability" 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. Any employment means any reasonable or normal employment of occupation; it is not necessary that the employee be completely inactive or inert in order to meet the statutory definition. Kowalski v. M-G Metals and Sales, Inc. 631 S.W.2d 919,922 (Mo. App. 1982).

In the second case, Claimant did not meet the burden imposed by law.

Claimant states that, on 4/26/05, he missed the last rung of a ladder while descending. Claimant also states that he felt a stretch to the right thigh but no pain. It wasn't until three days later that the Claimant felt "extreme" pain. Dr. Shelly Kopp diagnosed him, on 4/29/05, with right hip pain not work related. Dr. Pierron, on 5/18/05, diagnosed an avascular necrosis and a possible subchondral fracture on the right hip. On 8/16/05, Dr. Michael Burns diagnosed avascular necrosis and a possible microfracture. On 9/27/05, Dr. Robert Sciortino's impression was acute subchondral fracture of the right femoral head on top of bilateral avascular necrosis.

Dr. Volarich examined Claimant on or about 2/23/12. His diagnosis of the 4/26/05, injury was right femoral head acute subchondral stress fracture and aggravation of underlying avascular necrosis. The fall on 4/26/05, was the substantial contributing factor as well as the primary factor causing the acute subchondral femoral head fracture and aggravation of avascular necrosis. Dr. Volarich did not believe Claimant could return to work.

James England Jr., a vocational rehabilitation counselor, also had the opinion that Claimant could not return to work. However, he noted Dr. Nogalski's opinion dated 6/12/07,

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 05-041432

that stated the incident from 4/26/05, would not be substantial or the prevailing factor in his

current hip condition.

I find Claimant experienced an accident as defined in RSMo. 287.020.2 but the accident

did not cause the "resulting medical condition" as defined in RSMo. 287.020.3

I find Dr. Noglaski's opinion more persuasive than Dr. Volarich's opinion. Also, Dr.

Kopp opined the injury was not work related. Dr. Pierron and Dr. Burns diagnosed possible

fracture. However, all of the doctors diagnosed avascular necrosis. Claimant very well may

never return to work but the evidence suggests that would be because of the necrosis and not

the possible subchondral fracture. Indeed, Claimant was not treated for the fracture but for

possible hip replacement surgery. Falling off a single rung of a ladder, hardly supports Dr.

Volarich's assertion of an "impaction injury." Moreover, Dr. Volarich did not address the

lack of acutely disabling symptoms or, more importantly, the bi-lateral nature of the

condition. Again, Claimant's minor fall is not a reasonable supposition to impose liability of

surgical treatment of a chronic condition. Therefore, this Court must deny Claimant's claim

for permanent total disability against the Second Injury Fund.

**CONCLUSION**

The Second Injury Fund is not liable to Claimant for permanent total disability benefits.

I certify that on May 31, 2018

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.

By _my_


Made by: Joseph P. Keavegy

Administrative Law Judge

Division of Workers' Compensation

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