The parties asked the administrative law judge to determine the following issues: (1) whether employee sustained an accident or occupational disease arising out of and in the course of his employment and whether employee's injury was medically causally related to the accident or occupational disease; (2) the nature and extent of any disability; (3) employer's liability for future medical; and (4) the liability of the Second Injury Fund.
The administrative law judge determined as follows: (1) employee sustained a work-related occupational disease on July 10, 2008, specifically a disc herniation at L4-5, that arose out of and in the course of his employment; (2) employee sustained a 15% permanent partial disability referable to the body as a whole regarding his lower back; (3) there was no liability for future medical care; and (4) the Second Injury Fund is liable for 30 weeks of permanent partial disability. The administrative law judge also concluded that a 2010 fusion for disc herniations at L4-5 and L5-S1 was not related to employee's work with employer and, therefore, not compensable.
Employee filed a timely application for review with the Commission alleging that the administrative law judge erred in concluding that employee's 2010 fusion for the L4-5 and L5-S1 herniations was not related to employee's work with employer and, therefore, not compensable. Employee also alleged that the administrative law judge erred in failing to award future medical benefits, permanent total disability, 25% permanent partial disability regarding employee's L4-5 disc herniation, and permanent total disability liability against the Second Injury Fund.
The Second Injury Fund also filed a timely application for review with the Commission alleging the administrative law judge erred in awarding liability against the Second Injury Fund because employee (1) failed to prove a preexisting injury and a synergistic effect
Injury No. 08-124704
Employee: Jeffrey Dudley
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between the primary injury and employee's preexisting injuries; and (2) failed to prove that employee's duties were the prevailing factor causing the disc herniation at L4-5 and permanent partial disability.
For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) the prevailing factor causing the injury and disability; (2) employer's liability for past medical expenses; and (3) the liability of the Second Injury Fund.
**Discussion**
**Prevailing Factor Causing the L4-5 Disc Herniation and Permanent Partial Disability:**
The administrative law judge found that employee's duties were the prevailing factor causing the disc herniation at L4-5 in this matter by stating,
> [t]he new disc pathology at L4-5 revealed by the July 2008 MRI, however, forms the basis for a new work related injury. This medical finding is accompanied by increased symptomotology [sic] and decreased productivity. It is undisputed that [Employee]'s work with Employer was heavy and no other activity is [sic] reasonably suggested in the record that would explain the onset of disabling symptoms. This is especially true in view of the positive clinical findings by Dr. Mirkin correlating with the radiological findings.
Award, p. 15. We note that employer did not appeal the administrative law judge's decision regarding this finding.
We agree with the administrative law judge, and so find, that the record supports a finding of a new occupational disease at the L4-5 level arising out of and in the course of employee's employment.¹ We also find that employee's duties were the prevailing factor causing the disc herniation at L4-5 and employee's 15% permanent partial disability.²
Section 287.067.1 and .2, RSMo, define a compensable occupational disease as follows:
- In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general
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¹ We do not find persuasive Dr. Coyle's deposition testimony as it was contradictory. At one point, Dr. Coyle testified that employee's duties were the prevailing factor causing the disc herniation at L4-5, but at a different point, he also denied the same.
² We are not persuaded to alter the finding of the administrative law judge that employee was at 15% permanent partial disability. We do not find persuasive the rating of Dr. Volarich regarding this occupational disease injury, because Dr. Volarich did not explain his equal rating for employee's L4-5 disc herniation, which was treated by a fusion in 2010; employee's 2003 L5-S1 disc herniation, which was treated by surgery; and employee's 2006 recurrent L5-S1 disc herniation, which was treated by injections. Dr. Volarich also appeared to confuse what treatment each injury required by stating that the 2006 recurrent disc herniation required a discectomy, when in fact it only required injections.
Injury No. 08-124704
Employee: Jeffrey Dudley
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public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
- An injury or death by occupational disease 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.
As employee's duties were the prevailing factor causing both the disc herniation at L4-5 and employee's 15% permanent partial disability, we conclude that employee had a compensable occupational disease, pursuant to § 287.067.1 and .2, RSMo.
**Reasonably Required Medical Treatment: the 2010 Fusion**
We also find that employee's 2010 fusion was reasonably required to cure and relieve the effects of the L4-5 disc herniation. Dr. Coyle, Dr. Mirkin (through medical records), and Dr. Volarich all agreed that the 2010 fusion was reasonably required to cure and relieve the effects of the L4-5 disc herniation (in connection with a recurrent disc herniation at L5-S1, which is the subject of claim number 06-076184). However, the administrative law judge did not find that the 2010 fusion was related to work because it also treated employee's L5-S1 recurrent herniation. We disagree.
Where experts agree to the treatment reasonably required to cure and relieve a compensable injury, such treatment is compensable even though it also treats non-compensable injuries. *Tillotson v. St. Joseph Med. Ctr.,* 347 S.W.3d 511, 518 (Mo. App. 2011). In *Tillotson,* the employee had a total knee replacement because it was the medical treatment required to cure and relieve the effects of a compensable torn lateral meniscus in light of employee's other non-compensable conditions; anything short of a total knee replacement was insufficient.
Similarly, here, the reasonably required treatment to cure the L4-5 disc herniation, in light of the prior L5-S1 recurrent disc herniation, was the 2010 fusion. Therefore, following the *Tillotson,* decision, we conclude that the 2010 fusion was compensable.
Employer has already paid $126,909.31 in past medical expenses. Absent any evidence to the contrary, we find that such was the proper amount due for past medical.³
³ We recognize that the parties in this matter did not present the issue of temporary total disability benefits. Employer has already paid $18,382.53 in temporary total disability benefits to employee for the period of time from the date of the 2010 fusion on August 3, 2010, through January 28, 2011, when employee reached maximum medical improvement. We note that our ruling with regards to compensability of employee's past medical treatment supports a finding that employer is liable for temporary total disability benefits for this period of time.
Injury No. 08-124704
Employee: Jeffrey Dudley
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**Synergy and Second Injury Fund Liability:**
In order to find Second Injury Fund liability, employee must establish a synergistic effect between the primary injury and employee's preexisting conditions, "resulting in additional permanent partial disability so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself[.]" § 287.220.2, RSMo.
If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability.
*Winingear v. Treasurer of State-Custodian 2nd Injury Fund*, 474 S.W.3d 203, 207 (Mo. App. 2015) (inner citations omitted).
To establish a synergistic effect, employee presented the opinion of Dr. Volarich, who stated in his report:
> The combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added.
*Tr.,* p. 240. Dr. Volarich did not expound further regarding this boilerplate finding.
Courts have held that mere boilerplate language does not establish a synergistic effect between an employee's primary injury and his preexisting injuries. *Winingear v. Treasurer of State-Custodian 2nd Injury Fund*, 474 S.W.3d 203, 209 (Mo. App. 2015). Without more, Dr. Volarich's finding of a "substantially greater disability than the simple sum or total of each separate injury/illness" is not persuasive to us. Based on the record before us, we do not find that the combination of employee's disabilities resulted "in a greater disability than that which would have occurred from the last injury alone" or "that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury." § 287.220.2, RSMo. Accordingly, we deny any Second Injury Fund liability for employee's permanent partial disability.
**Conclusion**
We modify the award of the administrative law judge as to the issues of: 1) the prevailing factor causing