Thomas Williams v. Hussmann Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 02-048799

**Employee:** Thomas Williams

**Employer:** Hussmann Corporation (settled)

**Insurer:** Pacific Employers Insurance Company (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 parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing 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.

The administrative law judge analyzed the issue of medical causation by applying the post-2005 amendments to Chapter 287, RSMo, to the matter at hand. However, the date of injury in this matter pre-dated the 2005 amendments. Section 287.020.3, RSMo, as it existed in February 2002, provided:

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.

1. 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.

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Injury No.: 02-048799

Employee: Thomas Williams

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Section 287.020.2, RSMo, provided, in pertinent part:

"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 February 28, 2002 occupational disease exposure was "a substantial factor in the cause of the resulting medical condition or disability" or simply "a triggering or precipitating factor."

Having clarified this point, we are persuaded that, because the post-2005 amendment standard for medical causation has a higher burden of proof than the pre-2005 amendment standard, the medical causation result does not change in this matter. We conclude that employee's work for employer was a substantial factor in causing the February 28, 2002 injury by occupational disease.

**Conclusion**

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

The award and decision of Administrative Law Judge Marvin O. Teer, Jr., is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 3rd day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 02-048799

Employee: Thomas Williams

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 modified.

I agree with the majority that the pre-2005 standard applies for medical causation. However, I disagree with the May 9, 2016 maximum medical improvement date. I also find persuasive that employee was permanently and totally disabled much earlier than found by the administrative law judge.

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 changing positions and appearing unsteady when walking[,] an employer will be reluctant to hire him for any position. If he is able to present himself appropriately during an interview[,] Mr. Williams will have difficulty maintaining employment if the added activity of repeatedly standing up to wait on customers in the positions that I noted above increase his right foot symptoms to the point that he is unable to function on the following day.¹

Tr., pp. 286-87. The administrative law judge found Mr. Lalk's opinion persuasive. I do not see a reason to disturb the administrative law judge's credibility finding on this issue, but just the date of employee's permanent and total disability.

I would modify the administrative law judge's award allowing benefits by finding the maximum and medical improvement date to be September 8, 2003, and finding that claimant was permanently and totally disabled as of that date. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

¹ Mr. Lalk's August 17, 2016 opinion did not differ much in substance or conclusion.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

Employee: Thomas W. Williams

Dependents: N/A

Employer: Hussmann Corporation (settled)

Additional Party: Second Injury Fund

Injury No.: 02-048799

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Pacific Employers Insurance Company (settled)

Hearing Date: July 12, 2018

Checked by: MOT

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

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

1. Date of accident or onset of occupational disease: February 28, 2002

1. State location where accident occurred or occupational disease was contracted: St. Louis County

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 repetitively used his left leg to push a pedal and stepping up and down continuously onto a raised platform.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Low back and left knee

1. Nature and extent of any permanent disability: Permanent total disability

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

1. Value necessary medical aid paid to date by employer/insurer? $0.00

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

1. Value necessary medical aid not furnished by employer/insurer? 0.00

1. Employee's average weekly wages: 494.13

1. Weekly compensation rate: $329.42/$329.42

1. Method wages computation: stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer

Settled

1. Second Injury Fund liability:

Permanent and total disability benefits beginning May 9, 2016 and continuing for life. SIF is given credit for 128 weeks PPD paid by employer.

TOTAL: TBD

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 25% of all payments hereunder in favor of Attorney Dean Christianson for necessary legal services rendered to the claimant. (The Court notes there exists an active lien on file on behalf of Attorney Radford Raines. As Mr. Raines did not appear, failed to produce any testimony or evidence in support of said lien, nor did current Counsel present any facts in support of same, the Court finds the lien on behalf of Mr. Raines to be null and void.)

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

Employee: Thomas W. Williams

Dependents: N/A

Employer: Hussman Corporation (settled)

Additional Party: Second Injury Fund

Injury No.: 02-048799

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Pacific Employers Insurance Company (settled)

On July 12, 2018, Claimant Thomas Williams ("Claimant") and the State Treasurer as Custodian of the Second Injury Fund ("Fund") appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110 RSMo. Employee appeared in person and with counsel, Dean Christianson. The Fund appeared through counsel, Assistant Attorney General Mathew Kincade. The record was closed on July 12, 2018, and the parties filed briefs due August 27, 2018. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute.

The parties requested the Division to determine:

1. Nature and Extent of Alleged Occupational Disease, and Medical Causation
2. Nature and Extent of Second Injury Fund Liability
3. Date of Maximum Medical Improvement

Employee testified on his own behalf and presented the following exhibits without objection:

1. Deposition of Dr. Cohen of 9/22/09
2. Deposition of Dr. Cohen of 5/24/16
3. Deposition of Timothy Lalk of 8/18/09
4. Deposition of Timothy Lalk of 10/11/16
5. Certified Records of Phelps County Regional Medical Center (cert 8/26/15)
6. Certified Records of Phelps County Regional Medical Center (cert 4/25/17)

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Injury Number: 02-048799

1. Certified Records of Internal Medicine Associates (Dr. Grus)

1. Certified Records of Rolla Family Clinic (cert 8/12/15)

1. Certified Records of St. Peters Bone and Joint Surgery (cert 2/13/03)

1. Certified Records of Barnes-Jewish St. Peters Hospital (cert 10/18/04)

1. Certified Records of Excel Sports (cert 2/18/03)

1. Certified Records of DePaul Health Center (cert 11/10/04)

1. Certified Records of University of Missouri Health System (cert 3/8/17)

1. Certified Records of HealthSouth (cert 10/21/04)

1. Medical Records of Dr. Steel

1. Medical Records of Northland Orthopedics

1. Medical Records of Regents Medical Center

1. Medical Records of Dr. Vissers

1. Medical Records of Internal Medicine Associates (cert 2/20/13)

The Fund presented the following exhibit without objection:

I. Deposition of Michael P. Nogalski, M.D, taken on behalf of Employer/Insurer on August 22, 2011.

Any objections made during the hearing but not ruled on during the hearing or in this award are now overruled. All exhibits, not previously ruled on, are hereby admitted. To the extent there are marks or highlights contained in the exhibits, they were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

STIPULATIONS

1. Claimant was an Employee of Employer pursuant to Chapter 287 RSMo.¹

1. Venue is proper in St. Louis County.

1. Claimant filed the claim for compensation within the time allowed by law.

1. The permanent total disability rate and the permanent partial disability rate for this claim is $329.42.

1. All depositions introduced by the parties are admitted in lieu of live testimony, subject to the objections contained in those depositions.

1. The Employer/Insurer paid no medical expenses or temporary total disability benefits to Claimant.

¹ All statutory references are to Revised Statutes of Missouri, 2009 Cumulative Supplement unless otherwise noted.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

Claimant was born January 18, 1955, and was 63 years old on the day of the hearing and currently lives in Rolla, Missouri. He is five feet nine inches tall and weighs 255 pounds. He said he has gained weight since his injury due to inactivity. He currently takes pain medications in the form of oxycodone, gabapentin and tylenol. These are prescribed by his primary care physician, Dr. Jimmy Bell.

Claimant testified he graduated high school but has no further formal or vocational training and has very basic computer knowledge. Claimant further testified he twice tried to enter the military, both Army and Air Force, but was denied due to his congenital right foot problem.

Prior to working for Hussmann, he worked for a manufacturer in which he would inspect and clean manufactured parts. He also worked for a couple of auto parts stores. He worked for a car rental company, cleaning the cars. He also worked as a driver for a flower shop. Claimant testified, while he worked for one of the auto parts stores as a manager, he did not believe he could do that position, as it required that he be on his feet and carrying heavy items. Claimant is not currently working and has not worked since his employment with the Hussmann Corporation. He began working for them on September 8, 1992, and last worked for them on March 8, 2002. He contacted them in September of 2003 in an attempt to return to work for them, but was told there was no job available for him.

Claimant testified his job with Hussmann Corporation was that of an assembler. He said his duties involved electrical testing of commercial refrigeration units that were on the assembly line. A unit would come down the line and he would pump a pedal to raise it into proper position at his station. He always used his left foot to pump the pedal because of the problems he has with his right foot. After pumping the pedal, he would then step up onto a platform to attach the electrical cables to the unit which was approximately 1 1/2 feet tall. He always used his left leg to step up, again due to the problems with his right foot. He would also always use his left

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

foot to step down from the platform. After he stepped up to the platform to attach the wires, he would step down and test the unit. He would then step back up to detach the wires and then step back down again. He performed this on approximately 65 to 85 units per day. He said he worked 5 days per week, usually 8 to 10 hours per day. He sometimes worked 8 hours Saturday as well.

Claimant testified, as he performed his job at Hussmann, he began to experience pain in his left knee. He reported this to his supervisors but was not sent for medical care. He therefore sought medical care on his own through his primary care physician, Dr. Grus. Dr. Grus evaluated him and referred him to an orthopedic surgeon, Dr. Luechtfeld. Dr. Luechtfeld evaluated him and eventually performed surgery on the left knee for a torn medial meniscus. Dr. Grus also referred him to Dr. Graven because he was having complaints in his back. Dr. Graven performed testing but provided no further medical treatment.

Claimant testified the left knee surgery with Dr. Luechtfeld was not helpful as he continued to have knee pain. He also began to have complaints with his lower back, which he attributed to walking "off balance" due to his left knee. Dr. Luechtfeld then performed a second surgical procedure on his left knee in the form of a partial left knee replacement. He again continued to have problems with his knee following this procedure and was still not able to return to work. After Dr. Luechtfeld retired, Employee came under the care of the Doctor's partner, Dr. Maylack. Dr. Maylack eventually performed a third surgery on Employee's left knee in August of 2003. This surgery consisted of a revision of the previous left knee replacement. At the same time, Claimant was also seeing Dr. Grus off and on for pain he was having in his back. Claimant testified the surgery performed by Dr. Maylack was also not helpful to him as he continued to have multiple symptoms in his knee. As indicated previously, he attempted to return to work with Hussmann at that point in time but was not able to do so.

Claimant then continued to receive medical treatment with Dr. Grus. He eventually moved to the State of Tennessee as he did not have a place to live and a friend had offered him a place to stay. He moved in with his friend in Tennessee and stayed there. He treated with doctors in Tennessee by the names of Dr. Visser and Dr. Steel. Dr. Steel was his primary care

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

physician in Tennessee and provided him with medications. Dr. Visser was an orthopedic surgeon.

In 2014, Employee's son encouraged him to return to Missouri to live with him. He did that and currently resides in Rolla, Missouri with his daughter. After returning to Missouri, he began receiving treatment at the Rolla Family Clinic, using them as his primary care physicians as well as providing him with medications. At one point in time, they referred him to Dr. Rieth, who provided him with electrical testing due to his ongoing back complaints. Claimant was referred to the Phelps County Regional Medical Center Pain Management Program. He received medications and injections into his back. Eventually he was referred to a surgeon at the University of Missouri Department of Orthopedics. He underwent a complete left knee joint replacement. Since then he has been receiving treatment, including pain medications, with his primary care physician, Dr. Jimmy Bell.

Claimant testified he continues to have complaints he believes are related to his work at the Hussmann Corporation. With regard to his left knee, he indicated he has lost range of motion, and he stated the knee feels "loose". He states the pain and lost motion make it difficult for him to put on clothing, such as his socks. He states he always has at least a hint of pain in the left knee, and it becomes bad with activity. He described activity as causing a very sore, throbbing pain. This is improved by getting off of his feet for several hours.

With regard to his lower back, he states there are times when he has no back complaints. Claimant states when he is active he gets a stabbing pain in his lower back, making it hard to straighten up. When he gets these complaints, he has to lie down for at least an hour to decrease his pain.

Claimant testified he attempted, at one point in time, to return to work. He stated he had a friend who worked at a golf course who offered him a part time job. The job involved loading drinks onto a golf cart and then driving around the course to help people and sell them drinks. He would do this for 2 to 3 hours per day. The job lasted somewhere between 3 and 5 weeks. He stated he had to stop because he had increased problems with his left knee, back and right

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

foot due to the lifting involved in loading the golf cart. He also did not appreciate the fact he was being paid cash, as he felt that this was not proper.

In a typical day, Claimant does very little around his home. Occasionally he will try to wash a few dishes, though this is not very often as he is not able to stand at the sink. Doing so causes increased pain in his back and hip, along with the left knee. The standing causes additional pain in his right foot, as it places too much pressure on the foot. He is not able to do any work around the yard. He is able to drive, though he does not do this very much, only to see a doctor and only if it is near his home. He stated simply riding in a car "becomes an issue" after a while. He has to shift constantly in his seat due to his various complaints. He stated his sleep is not restful. He is only able to sleep for three to four hours because of pain in the left knee, right foot and back. He stated he does feel rested when he arises in the morning. He therefore takes naps approximately twice per day, each one usually one to two hours long.

With regard to standing, Employee stated he can stand approximately ten minutes, perhaps longer if he uses his cane. He develops ongoing complaints in his back, left knee and right foot. With sitting he also fidgets in his seat due to complaints in the knee, foot and back. He felt he can walk approximately one block, though this is even difficult for him due to his complaints. He avoids stairs because he is unable to lead with his right foot. If he climbs stairs, he has to use his cane and take his time. He is able to take care of his personal needs, though it takes longer to shower and is difficult to put clothing on his legs, such as his socks.

Claimant testified before he began to work for Hussmann he had a problem with his right foot. He stated he was born with a right "club foot". He indicated he had four or five surgeries on the foot between birth and age sixteen. He said these surgeries were performed to help straighten out his foot. He wore orthotics and special shoes for a while, though his mother thereafter could not afford to provide him these shoes. As a child, he continued to perform regular activities such as playing sports. When he entered the work force, he had a couple of

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

injuries to the right foot. In 1984 or 1985 an engine crank shaft fell on his right foot, striking the bridge of the foot. He thereafter had some physical therapy and possibly some injections. He stated that he missed one year of work due to the problems associated with this injury.

Later, in approximately 1993, he had another injury to his right foot. He was pulling a heavy steel cage on wheels through a manufacturing plant. He tried to stop the cage quickly, which caused it to roll onto the back of his right foot. He thereafter had physical therapy on the foot. He stated this injury occurred when he was performing a temporary job, during a layoff from his work with the Hussmann Corporation. When he was called back to work at Hussmann, he was not able to return to work immediately due to the foot injury. He felt he missed three or four months from work because of this injury.

Claimant also testified he had a pre-existing injury to his left knee in 1985. He could not remember how that injury had occurred. He was taken to surgery and an orthoscopic procedure was performed. He felt that his left knee was fine after this, and he had no ongoing complaints.

Additionally, previous to the work accident, in addition to the problems previously discussed, Claimant had surgery for a congenital urethral stricture and a strangulated hernia. He said he had no continuing problems following these procedures.

Claimant's Expert Testimony

Dr. Raymond Cohen

The deposition of Dr. Raymond Cohen, a board certified neurologist, was taken on behalf of Employee on two separate occasions: September 22, 2009, and May 24, 2016. His first evaluation of Claimant took place on June 28, 2004. He evaluated Employee and reviewed medical records, before reaching a diagnosis of a cumulative trauma/overuse disorder involving the left knee and resulting in a medial meniscus tear, chondromalacia and degenerative changes in the knee. He also diagnosed a lumbar myofascial pain disorder due to a compensatory gait. He stated Claimant's work for Hussmann was a substantial factor in causing injury to the left knee and low back, and the treatment performed was reasonable and necessary for these.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

conditions. He further testified Claimant will need additional medical care as a result of these injuries. He testified Claimant has permanent disability from these conditions of 60% of the left knee and 10% of the body as a whole. He said Claimant also had pre-existing disability of 20% in the left knee, due to his prior left knee surgery. He restricted Employee's activities as such: no prolonged standing, stooping, crawling, kneeling or any other repetitive work involving the lower extremities. He finally testified Claimant had pre-existing disability of 60% of the right ankle.

Dr. Cohen testified a second time on May 24, 2016. This testimony followed his second examination of Employee on September 3, 2015. His examination also included a review of numerous medical records. He found Claimant has a severely antalgic gait favoring both of his lower extremities, such that he walked with a cane. There was a severe loss in range of motion in the lumbar spine with marked tenderness to palpation. His diagnosis was an overuse disorder/cumulative trauma disorder of the left knee and lumbar spine, medial meniscus tear, chondromalacia, degenerative changes, and lumbar myofascial pain disorder due to compensatory gait. Dr. Cohen further stated Claimant's work duties for Hussmann were a substantial factor in causing these conditions. With regard to pre-existing conditions, he diagnosed a congenital right clubfoot with subsequent injuries, resulting in severe degenerative joint disease of the right ankle. He again testified Claimant had 80% disability in his left knee and 10% of his lumbar spine. He also found pre-existing disability of 60% of the right ankle.

Dr. Michael P. Nogalski, M.D.

Dr. Nogalski performed an independent medical evaluation on February 5, 2004. At that point in time, Dr. Nogalski performed a physical examination of the left knee and noted range of motion up to 120 degrees with pain at the extremities of both extension and flexion, intact ligament stability, 5-15 motor strength in flexion and extension, pain with resisted muscle testing, and decreased sensation in the left knee. Dr. Nogalski opined he did not feel as if "the nature of [Claimant's] work would predispose in a substantial way to a significant injury or problems with regard to the knee, especially given the degenerative condition which was indeed present." Dr. Nogalski also indicated that he did not identify problems with the left knee prior to 2000.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

Timothy G. Lalk

Mr. Timothy Lalk, a board-certified vocational rehabilitation counselor, was deposed on behalf of Claimant on two occasions: August 18, 2009, and October 11, 2016. Mr. Lalk first evaluated Claimant on October 18, 2007. He spoke with Claimant personally, reviewed his medical records, and performed testing. He concluded if Claimant could function up to the level of restrictions set by Dr. Cohen, then he would be able to work only in a limited capacity of sedentary or near sedentary occupations. Additionally, he noted, if Claimant is having the difficulties reported by him in his interview, then he would not be able to compete for work or maintain employment in the open labor market.

If I note the problems that Mr. Williams is having at this time, his reported difficulty, and just my observation of how he conducted himself in my office where all I had him do was sit, stand and walk to do - to complete an interview, then based on that, it's my opinion that Mr. Williams will not be able to maintain employment in the open labor market.

(Exhibit 3, p. 44).

And:

He's unable to simply change positions without difficulty, he appears unsteady with his walking. I think that those things are so obvious that any potential employer that observes him during a typical job interview would be reluctant to hire him because of fear of something happening on the job or the liability that could be incurred by hiring that individual. There would also be concern that a person with those types of problems might not be able to either fulfill their full job duties during each workday or even be able to come in to work on the expected days. I also do not believe that he would be able to maintain employment, because he develops additional symptoms whenever he, he tries to stand up. If he has to wait on customers, and most of those positions that I talked about would all require some standing, then his foot symptoms develop to the point that he's unable to function during the day. In that regard, I don't believe he would be able to carry out his duties even in a sedentary position.

(Exhibit 3, p. 44-45).

Mr. Lalk evaluated Claimant a second time on June 23, 2016. (Exhibit 4, p. 7). He made these observations of Claimant during that evaluation:

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

I noted that when sitting he tended to move in his seat, and there was some grimacing when he changed positions from standing to sitting and from sitting to standing. He seemed to have difficulty and discomfort not only when sitting and changing positions but also when walking and standing. His ambulation involved taking short steps in a very slow manner.

Mr. Lalk again testified that he does not believe that Claimant is able to secure employment in the open labor market and will not be able to compete for employment because of his presentation in which he appears to have significant difficulty and discomfort changing positions and walking.

RULINGS OF LAW

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund*, 352 S.W.3d 604, 608 (Mo. App. W.D. 2011) (internal quotation marks and citation omitted). The Fund is a creature of statute, and benefits from the Fund are awarded only if a claimant proves that under §287.220.1 RSMo. he is entitled to such benefits. To prevail against the Second Injury Fund for permanent total disability, the employee must show: (1) A compensable work injury resulting in permanent partial disability; (2) that at the time of the work injury, the employee had a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment; (3) that the compensable injury and the pre-existing permanent partial disability combine together to result in permanent total disability; and (4) that the claim was filed within the statute of limitations. § 287.220.1.

A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W. 2d 789, 793 (Mo. App. S.D. 1992). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo.App. E.D. 1999). "'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W. 2d 271, 277 (Mo.App. S.D. 1996).

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo Highway and Transportation Commission*,

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

222 S.W.3d 322, 331 (Mo.App. S.D. 2007) Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo.App. E.D. 2008). The weight to be given the expert's opinion on medical causation is within the sole discretion of the [fact finder]. *Id.* at 458. The [fact finder] is the sole judge of the weight of evidence and credibility of witnesses. *Id.* The Administrative Law Judge is free to disbelieve the testimony of any witness, even if there is no contrary or impeaching evidence. *ABB Power T&D Company v. Kempker*, 236 S.W.3d 43, 51-52 (Mo.App. W.D. 2007). Thus, the ALJ is free to accept or reject any evidence, including expert evidence. *Id.*

#### a. Causation

An occupational disease due to repetitive motion is compensable only if the occupational exposure 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable. § 287.067

This tribunal finds Claimant's testimony to be consistent, credible and forthright. Additionally this Court finds the testimony and findings of Dr. Cohen to be more credible and thus persuasive to the issues at hand. This Court further states the weight of the credible evidence finds Claimant's work for Hussmann was a prevailing factor in causing his left knee and low back conditions.

It is further found that Dr. Cohen's explanation for how Employee's work duties constituted a prevailing factor is credible.

> [w]hat causes this is the repetitive stress on this joint that after the individual does some type of work or activity in which this joint is repeatedly put in some type of position that it's not made to be put in, everybody as a rule can do some type of work or activity in which usually does not hurt a particular joint, but when that part of the body, and of course this case the knee is used over and over and over and he described several hundred times per day, and it it's a little bit less than that or a little bit more than that, but when that joint in that knee supports the entire body goes up and down and hits that articular cartilage, it causes these micro tears, swelling pressure, and each day as that goes by it starts damaging the articular cartilage, which is the smooth surface that allows the femur or thigh bone to articulate with the tibia or the lower extremity, and after a period of time that it

WV-32-R1 (6-81)

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

begins to degenerate and to tear those fibers apart it becomes a chronic process and it gradually becomes worse. It's not an injury in the acute sense. It is a slow progressive process that occurs in that the knee cannot tolerate this day after day of this repetitive stress on this knee. In addition to that, he has the bad foot or the right foot, and the knees in humans are divided 50/50 between the weight of the person, and he did this getting up and down on that platform and eventually the knee cannot take any more of the stress and becomes symptomatic, and that's what was ultimately identified in Dr. Luechtefeld's records, he did have a prior knee surgery and I inadvertently, and I apologize, that I did not have that in the reports so there is a small amount of pre-existing disability. Dr. Luechtefeld did note that it was a ligament problem and some loose bodies, which does affect the knee somewhat, but nevertheless in summary he did 12 years of line work at Hussmann, and that is a repetitive type of work or overuse type of work on the knee joint. (Exhibit 1, p. 23-24).

Date of Maximum Medical Improvement

Claimant alleges he reached maximum medical improvement ("MMI") on September 8, 2003, when he completed his third surgery and was released from care by Dr. Maylack. The Second Injury fund argues the date of MMI should be when all surgeries and care of Claimant's work related injury treatments stopped.

Courts have held the "level of disability associated with an injury cannot be determined until it reaches the point of maximum medical improvement ("MMI"). *Cardwell v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 249 S.W.3d 902, 910 (Mo.App.2008). In other words, maximum medical improvement represents a point where no further progress can be expected for a medical condition. *Id.* The issue of whether a claimant can reach additional medical improvement is essential for determining when a disability becomes "permanent" for permanent partial disability payment calculations. *Id.*

When calculating Second Injury Fund liability, Missouri courts have typically first calculated disability benefits for the Employer. Moreover, Missouri courts would note that payments for the Second Injury Fund would start from the date of maximum medical improvement. *Id.* Maximum medical improvement is reached when the medical condition has reached the point where further progress is not expected. *Id.*

In this case, although Claimant was released from care in 2003, Claimant remained symptomatic and Claimant underwent additional medical treatment and surgical intervention that his expert directly related to the primary injury. Specifically, Claimant required another revision

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 02-048799

of his left total knee replacement which was performed in 2016. Based on the above, the

evidence in this case supports a finding Claimant reached maximum medical improvement after

his release by Dr. Aleto on May 9, 2016.

The evidence supports a finding Claimant has permanent disability of 55% of the left

knee and 10% of the body due to his occupational disease/repetitive stress injuries, which arose

out of his work duties for Hussmann. He is also found to have pre-existing disability of 50% of

the right ankle due to his congenital clubfoot and two additional right foot injuries occurring

prior to the development of his occupational disease.

Additionally, the evidence supports a finding Claimant is unable to secure and maintain

employment in the open labor market, because of his need to constantly re-position himself, due

to the symptoms in his low back, left knee and right foot. These symptoms cause his need to rest

and recline during the day. Accordingly, the evidence shows Claimant's inability to work is the

direct result of a combination of his primary injury and his pre-existing medical conditions and it

is found the Second Injury Fund is liable for his permanent total disability.

I certify that on 10-17-18

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


Made by:

Marvin O. Teer, Jr.

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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