The administrative law judge erred in finding the Second Injury Fund liable for permanent total disability benefits to Jon Roehl in that she did not consider the competent and substantial evidence in the record of P. Brent Koprivica, M.D., who opined that the alleged occupational disease culminating on April 19, 2016, was not a compensable injury because it was not the prevailing factor in causing employee's condition and disability.
In a Missouri workers' compensation case, the employee has the burden of proving all material elements of the claim. *Fischer v. Archdiocese of St. Louis-Cardinal Richter Institute*, 793 S.W.2d 195 (Mo. App. 1990). It is the employee's burden to prove "not only causation between the accident and the injury, but also that a disability resulted and the extent of such disability." *Griggs v. A.B. Chance Company*, 503 S.W.2d 697 (Mo. App. 1973). Further, "proof of permanency of injury requires reasonable certainty." *Id.* This proof must be based on competent and substantial evidence and not merely on speculation. *Moriarty v. Treasurer of the State of Missouri*, 141 S.W.3d 69 (Mo. App. 2004).
The administrative law judge did not properly consider Dr. Koprivica's opinion on whether the April 19, 2016, occupational disease/injury employee alleged was the prevailing factor in his resulting condition because she adopted the employee's arguments in total without any reference to Dr. Koprivica's opinion on this issue, and without any analysis of the facts, the evidence, or the application of law to the facts.
Dr. Koprivica is the only expert who weighed the mechanism of injury and the resulting condition, and concluded that it was more likely than not that employee's self-reported trip and fall over his dog leash, documented in contemporaneous emergency room records on April 19, 2016, the date of employee's alleged work injury, was the mechanism of injury and the prevailing factor that caused the resulting condition in employee's low back. Dr. Koprivica's opinion constitutes competent and substantial evidence contradicting the opinions of Dr. Poppa, Dr. Clymer, Dr. Erickson, and supports a reversal of the administrative law judge's decision that the April 19, 2016, injury/occupational disease constituted a compensable injury. Notably, neither Dr. Poppa, Dr. Clymer, nor Dr. Erickson even referenced the April 19, 2016, trip and fall injury employee sustained in his yard, and it appears that none of these doctors were even made aware of that injury before rendering their opinions that employee's alleged work injury was the prevailing factor in employee's resulting condition, and therefore, compensable.
Because Dr. Koprivica's competent and substantial opinion on the issue of compensability was not even considered, the administrative law judge's decision that
Injury No.: 16-028437
Employee: Jon Roehl
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the April 19, 2016, injury/occupational disease constituted a compensable injury should be overturned.
**Employee's Preexisting Conditions Do Not Qualify for Second Injury Fund Liability Pursuant to § 287.220.3 RSMo.**
The administrative law judge further erred in finding the Second Injury Fund liable for permanent total disability benefits to Jon Roehl in that she did not consider the competent and substantial evidence of Dr. Koprivica, who opined that none of Jon Roehl's preexisting conditions met the requirements of Section 287.220.3 to qualify for Second Injury Fund liability for permanent total disability benefits for injuries occurring after January 1, 2014, because none were either a) a compensable injury equaling fifty weeks of disability; b) a military related injury/condition equaling fifty weeks of disability; an opposing extremity of the subsequent April 19, 2016 injury, equaling fifty weeks of disability; or c) a condition that significantly and directly aggravated or accelerated the subsequent April 19, 2016 injury, equaling fifty weeks of disability.
Here, claimant's claim for injury was alleged as an occupational disease to his low back from repetitive heavy lifting at work, culminating on April 19, 2016, which is post January 1, 2014, the date of the change in the law set out in Section 287.220.3. This section provides, in pertinent part:
- All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014 shall be compensated as provided in this subsection.
- No claims for permanent partial disability occurring after the effective date of this section shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:
a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
i. A direct result of active military duty in any branch of the United States armed forces; or
ii. A direct result of a compensable injury as defined in section 287.020; or
iii. Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not
Injury No.: 16-028437
Employee: Jon Roehl
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aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or low of hearing in the other ear; and
b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items i, ii, iii, or iv of subparagraph a of this paragraph, results in a permanent total disability as defined under this chapter.
Dr. Koprivica credibly testified that none of claimant's pre-existing conditions meet the requirements of Section 287.220.3 for Second Injury Fund liability for permanent total disability because none of the preexisting disabilities are 1) a military injury arising out of a direct result of active military duty in any branch of the United States armed forces; 2) a direct result of a compensable injury as defined in section 287.020; 3) a preexisting disability that directly and significantly aggravates or accelerates the primary injury; or 4) a pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when the primary is of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.
With regard to whether either claimant's preexisting Charcot Marie Tooth disease, alcoholism, or any other prior condition significantly aggravated or accelerated the primary occupational disease injury to the low back, Dr. Koprivica stated:
He did not have any prior military disability that he told me about, he did not have any prior workers' compensation claim for which he got a settlement. There really was not any interaction between the primary injury and his prior disabilities that I could tell that there would be an aggravation or acceleration of that disability significantly. Those are the—what I'm looking at, is there something that would potentially cause Fund liability, would it trigger Fund liability since this injury is after January 1st, 2014, and it's an occupational disease claim is what I understood. Now, there's some debate in my mind as to what the records say about it being related to work, but if you were to adopt that, I didn't really identify anything that I thought qualified after the revision of the statutes that would trigger Fund liability. One of the things I was really looking at is did he have prior back problems that would then aggravate or accelerate the new back problems he has of April 19, 2016, and he didn't volunteer any history to me of that and I couldn't find it in the record.
2 Transcript, 790-791.
Injury No.: 16-028437
Employee: Jon Roehl
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Dr. Koprivica did not view employee's prior history of ethanol abuse or Charcot Marie Tooth disease to qualify under Section 287.220.3 to trigger Second Injury Fund liability because neither of those conditions were a military or compensable work injury and neither of them significantly aggravated or accelerated the primary claim: "That's how I interpreted what he told me his level of function was from those prior conditions."3
Dr. Koprivica could find nothing that was industrially disabling that qualified under 287.220.3. He summarized his conclusions as follows:
> The issue is that it's (alcoholism, charcot marie tooth) not military disability, it's not a workers' compensation claim that he's received a 50-week disabilit