The maximum improvement date determines when permanent total disability payments commence from the Second Injury Fund, as opposed to temporary total disability payments by the employer.
Awards of temporary total disability are intended to cover healing periods. These awards are payable until the employee is able to find some employment or until the employee's condition "has reached the point where further progress is not expected."
*Vinson v. Curators of Univ. of Mo., 822 S.W.2d 504, 508 (Mo. App. 1991) (quoting Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. 1955)).*
I find persuasive that employee reached maximum improvement on September 8, 2003, because he reached a point where further progress was not expected. The subsequent treatment, including the total knee replacement a decade later, was not part of the rehabilitative process, but was merely pain management, followed by a replacement of orthotics.
Employee's original treatment consisted of three left knee surgical procedures by August 15, 2003, including a partial knee replacement. This partial knee replacement was never intended to last indefinitely. On September 8, 2003, employee was released without restrictions to return to work. On this date, further progress was not expected, even though employee continued to have pain and required treatment for such pain. Subsequently, on February 5, 2004, Dr. Michael Nogalski indicated in an independent medical evaluation that employee had reached maximum medical improvement. On June 28, 2004, Dr. Raymond Cohen stated that employee's permanent disability could be ascertained, which is only possible when one has reached maximum medical improvement.
The treatment employee received after September 8, 2003, focused on employee's pain management and did not focus on improving employee's overall condition. On February 24, 2006, employee went to his primary care physician due to back pain complaints; employee received a muscle relaxer. Employee continued to take prescription pain medication. On August 3, 2007, employee's primary care physician prescribed more pain medication. Employee then moved to Tennessee where he saw an orthopedic surgeon who treated employee's pain with steroid injections. Employee also received more pain medication. At one point, employee received a magnetic resonance imaging scan to determine the possibility of further knee surgery to replace the 2003 partial knee replacement.
Injury No.: 02-048799
Employee: Thomas Williams
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On April 8, 2016, employee received a fourth left knee surgical procedure to remove the partial knee replacement with a total knee replacement. On May 9, 2016, Dr. Thomas Aleto released employee from care. This fourth surgical procedure, over a decade after his third left knee procedure, does not alter the fact that as of September 8, 2003, employee was not expected to progress further.
Therefore, I specifically find that employee's treatment between September 8, 2003 and April 8, 2016 was not part of the rehabilitative process, but merely addressed pain management. The April 8, 2016 surgery was merely a replacement of orthotics and also was not part of the rehabilitative process.
Permanent Total Disability
Although employee was released on September 8, 2003 to return to work without restrictions, employee was unable to compete in the open labor market. I find persuasive the opinions of employee's experts that employee was permanently and totally disabled due to a combination of his work-related injury and his pre-existing injuries as of September 8, 2003.
Section 287.020.7, RSMo 2000, provided, "The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident."
"The test for permanent 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. The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this [employee] in his or her present physical condition." Lorentz v. Mo. State Treasurer, 72 S.W.3d 315, 319 (Mo. App. 2002) (citations omitted) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).
By September 8, 2003, employee's February 28, 2002 occupational disease exposure injury combined with his pre-existing right foot condition to render him permanently and totally disabled. Employee has a pre-existing congenital deformity to his right foot. This condition has prevented employee from working for months at a time. When he was working, employee missed one to two days per week due to his right foot; most of these days were covered through FMLA leave. Employee's right foot condition made him use his left foot predominantly in his work, resulting in the February 28, 2002 occupational disease exposure.
On June 28, 2004, Dr. Cohen rated employee's work-related injury at 80% permanent partial disability at the left knee and 10% body as a whole at the lumbar spine. Dr. Cohen also rated employee's pre-existing right foot at 60% permanent partial disability at the ankle. Dr. Cohen stated, employee "needs to be restricted from any work in which he does any prolonged standing, stooping, crawling, kneeling or any other repetitive work involving the lower extremities." Tr., p. 149. Dr. Cohen also found that his work-related injury and his pre-existing injuries were a hindrance or obstacle to employee's employment or reemployment.
On September 3, 2015, Dr. Cohen looked at employee again. Dr. Cohen emphasized that his analysis considered only the work-related occupational disease exposure up through February 28, 2002, but not after. Dr. Cohen did not change his rating from June 28, 2004. The administrative law judge found Dr. Cohen's ratings persuasive and Dr. Cohen's opinion persuasive. I do not see a reason to disturb the administrative law judge's credibility finding on this issue. Dr. Cohen's rating and opinions support that employee was permanently and totally disabled by September 8, 2003.
Injury No.: 02-048799
Employee: Thomas Williams
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Similarly, on January 2, 2008, Mr. Timothy Lalk, a vocational expert, opined that employee's prospects for work were extremely limited, by stating:
[b]ased upon the restrictions of Dr. Cohen[,] Mr. Williams is limited to sedentary or near sedentary occupations. He would need to look for jobs similar to his work as a customer service representative performing duties such as a parts manager or dispatcher. Alternatively[,] he could consider jobs such as cashier in a self-service convenience store, desk clerk at a motel or rental store, information clerk or unarmed security guard and a variety of other customer service representative positions.
Tr., p. 286. Mr. Lalk also noted that it was obvious that employee had difficulty changing positions and that he was unsteady when he walked. Mr. Lalk then concluded:
It is my opinion that Mr. Williams is not able to maintain employment in the open labor market and is not able to successfully compete for employment. If Mr. Williams presents himself as having difficulty simply