I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has proven he is entitled to permanent total disability benefits from the Second Injury Fund.
Employee was a long-term sewer worker for employer. Since at least 2011, employee had been under the care of cardiologists for aortic stenosis, a progressive cardiac condition. When employee sustained a serious shoulder injury on March 1, 2015, employer's authorized treating orthopedic surgeon, Dr. Christopher Rothrock, ultimately concluded that employee could not undergo recommended surgical repair because his preexisting cardiac condition was so disabling that submitting to the needed shoulder surgery would kill him.
Employee never received the surgical repair Dr. Rothrock recommended. As a result, he is left with a painful dominant right arm he cannot not raise above shoulder level. Climbing into and out of manholes was a primary function of employee's work for employer. Employee can no longer climb. Lacking skills and experience outside of sewer repair, employee is unable to successfully compete in the open labor market.
Pursuant to the Supreme Court of Missouri's decision in *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. 2019), § 287.220.3 RSMo applies to employee's claim against the Second Injury Fund in this case. This section requires employee to demonstrate that his preexisting aortic stenosis, not a compensable injury, equals a minimum of fifty weeks of permanent partial disability and directly and significantly aggravated or accelerated his March 1, 2015, work injury to result in permanent total disability.
The Second Injury Fund objected to Dr. Sides' opinion that employee's longstanding aortic stenosis constituted a 15% preexisting permanent partial disability, as this opinion was not included in Dr. Sides' original, March 9, 2017 report. The Commission is not bound by the exact disability percentages given by medical experts. See *Sharp v. New Mac Electrical Cooperative*, 92 S.W.3d 351 (Mo. App. 2003), citing *Jost v. Big Boys Steel Erection, Inc.*, 946 S.W.2d 777, 779 (Mo. App. 1997). The testimony of Drs. Schuman and Sides, as well as the objective entries in employee's medical records, establish that employee's preexisting disability from aortic stenosis was indeed severe by the date of his primary injury, and precluded surgical repair of his right shoulder. As a result, employee received no further care for his primary injury.
Dr. Rothrock's records document that employee continues to experience pain and weakness about his right shoulder. Employee's physical therapy records evidence his complaints of constant throbbing and aching pain in the right shoulder and upper arm, with a pain level ranging from five to seven out of ten. Employee has difficulty and pain with everyday functional activities, including reaching overhead and reaching to the side. He has trouble sleeping due to pain in his right shoulder. As Dr. Schuman concluded, "[Employee] may have to continue to suffer with pain in his shoulder because the surgery on his shoulder might be too risky for him."
Section 287.190.6.(2) of the Missouri Workers' Compensation Law provides, in pertinent part, "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those finding demonstrable on physical examination or by appropriate tests or diagnostic procedures."
MNKOI 0000811657
Injury No. 15-012160
Employee: John D'Angelo
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The administrative law judge violated this provision by giving greater weight to employee's lack of subjective complaints prior to his work injury than to serial Doppler (a/k/a heart ultrasound or echocardiogram) studies that measured the progression of employee's aortic stenosis to severe over a period of years. The administrative law judge also disregarded the opinion of the Second Injury Fund's expert witness, Dr. Schuman, who testified that the aortic valve should be replaced once the aortic valve area shrinks to 0.7 cm, and employee's aortic valve area measured 0.65 cm prior to the March 1, 2015, date of primary work injury. Instead, the administrative law judge relied on employee's lack of subjective complaints of chest pain and shortness of breath to conclude that the objective Doppler studies were wrong.
The administrative law judge's denial of compensation is contrary to law and not supported by the competent and substantial evidence in the record. Because the majority finds otherwise, I respectfully dissent.
Shalonn K. Curls, Member