Richard Joyner v. Monsanto

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-035903

**Employee:** Richard Joyner

**Employer:** Monsanto

**Insurer:** American Zurich Insurance Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 9, 2020. The award and decision of Administrative Law Judge Joseph P. Keavney, issued April 9, 2020, is attached and incorporated by this reference.

The Commission further approves and affirms 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 **20th** day of November 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

Secretary

Injury No. 17-035903

Employee: Richard Joyner

I have read the briefs of the parties, heard the parties' arguments 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 concur with the majority's decision affirming the administrative law judge's award finding employer liable for employee's permanent total disability.

I deferred to the administrative law judge's findings in making my decision to affirm mainly because the medical expert testimony of Drs. Brian Fissel and David Volarich do not appear to be consistent with the opinions of vocational expert Mr. Benjamin Hughes on the issue of employee's ability to compete in the open labor market. For example, Mr. Hughes opined that employee could perform plumbing related sales jobs, and some unskilled/semiskilled positions such as a parking lot attendant, ticket sales, cashier, an office cleaner, and other related jobs. He further opined that under Dr. Fissel's restrictions, employee could compete for jobs at the light level. Mr. Hughes believed that under Dr. Volarich's restrictions, employee could compete in sedentary and some light duty positions. Dr. Fissel placed the following physical restrictions on employee: no climbing on ladders, no squatting and no kneeling. Dr. Volarich also placed physical restrictions on employee, such as limited repetitive stooping, squatting, crawling, kneeling, pivoting, climbing, and all impact maneuvers, caution when navigating uneven terrain, limited prolonged weight bearing, and on standing or walking to 60 minutes. It does not appear to me that employee could successfully compete in the labor market for any of the jobs that Mr. Hughes recommended under the physical restrictions imposed by either doctor. If there was more medical evidence supporting Mr. Hughes' view that employee could successfully participate in the open labor market under Drs. Fissel or Volarich's physical restrictions, I would have been much more inclined to rule differently, by concluding that employee was not permanently and totally disabled. However, that was not the case with this decision. There was no evidence from Drs. Fissel or Volarich indicating that employee would have no problem finding work in light duty or semi-skilled positions after his January 18, 2017 primary work injury, and his resulting deep vein thrombosis.

In all other respects, I concur with the majority's decision to affirm the administrative law judge's award.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

AWARD

Employee: Richard Joyner

Dependents: N/A

Employer: Monsanto

Additional Party: Treasurer as Custodian of the Second Injury Fund

Insurer: American Zurich Insurance Company

Hearing Date: January 16, 2020

Injury No.: 17-035903

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: JPK

FINDINGS OF FACT AND RULINGS OF LAW

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: January 18, 2017

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 was working on his knees, all day, in a water closet. While turning a valve, he twisted his left knee.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Left knee, Pulmonary system

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

1. Compensation paid to-date for temporary disability: $47,777.89

1. Value necessary medical aid paid to date by employer/insurer? $71,122.99

WC-32-R1 [6-01]

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 1,560.00

1. Weekly compensation rate: 911.27 TTD/ $477.33 PPD

1. Method wages computation: Stipulation

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

$911.27 per week from Employer and Insurer for Employee's lifetime

**INDETERMINATE**

1. Second Injury Fund liability: None

**TOTAL:**

**INDETERMINATE**

1. Future requirements awarded:

All necessary medical care to treat Employee's deep vein thrombosis and pulmonary emboli and to prevent their reoccurrence.

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 the following attorney for necessary legal services rendered to the claimant: Thomas J. Gregory.

WC-32-R1 (6-81)

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On January 16, 2020, the parties appeared for a hearing. Richard Joyner ("Employee") appeared in person and with Attorney Thomas J. Gregory. Assistant Attorney General Jennifer Sommers represented the Second Injury Fund. The Employer, Monsanto, and its Insurer, American Zurich Insurance Company were represented by Attorney Andrew Kovacs.

1) The employer, Monsanto, was operating subject to the Missouri Workers' Compensation Law at all times herein. 2) Claimant was in the employ of Murphy \& Miller Company at the time of the injury, but the Claimant's injury occurred on Monsanto's premises during a Monsanto construction project. Monsanto provided workers' compensation coverage for all of the contactors working on the job during this period of construction. 3) The employer was provided notice of the Employee's alleged injury and the Report of Injury was timely filed. 4) St. Louis, Missouri is the proper venue. 5) The average weekly wage on the date of injury was $\ 1,560.00, which is sufficient to qualify for rates of $\ 911.27 for temporary total disability (TTD), and $\ 477.33 for permanent partial disability (PPD). 6) Employer paid $\ 71,122.99 in medical expenses and $\ 47,777.89 in benefits, representing 523/7 weeks, during February 7, 2017 through February 8, 2018. 7) Employee reached maximum medical improvement on February 8, 2018 and received temporary total disability benefits up to that date.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

Claimant introduced, and had admitted into evidence, the following Exhibits:

1. Stipulation for Compromise Settlement in Injury Number 86-135106 - Richard Joyner v. Finch Plumbing (D/A 11/21/86)
2. Treatment records from Division file in Injury Number 86-135106 from Dr. Markenson, Dr. Burmeister and Dr. Conrad
3. Stipulation for Compromise Settlement in Injury Number 05-128051 - Richard Joyner v. Bieg Plumbing (D/A 11/03/05)
4. Medical records of Dr. Thomas K. Lee from February 21, 2005 to June 14, 2006
5. Medical records of Dr. Justin Hugo from February 6, 2006 to November 14, 2018
6. Inpatient records from St. Anthony's Medical Center from February 6, 2017 to February 11, 2017
7. MRI of left knee from St. Louis Imaging dated January 24, 2017
8. Inpatient records from St. Anthony's Medical Center from November 25, 2017 to November 28, 2017
9. Deposition of Dr. David Volarich taken on July 12, 2019
10. Deposition of Delores Gonzalez taken on August 5, 2019
11. Medical records from the office of Dr. Brian Fissel

Employer/Insurer introduced, and had admitted into evidence, the following exhibits:

A) The final rating report of Dr. Brian Fissel, dated April 20, 2018

B) The deposition of Vocational Expert Benjamin Hughes, dated October 3, 2019

The Second Injury Fund did not introduce any exhibits into evidence.

1. Liability of the Employer/Insurer for future medical treatment
2. Nature and extent of disability, whether permanent partial or permanent total
3. Liability of the Second Injury Fund

Employee was a journeyman plumber in the employ of Murphy & Miller at the time of the injury. He had been working as a plumber since 1983 at various companies. Employee describes the job of a journeyman plumber as being on his feet all day. He would have to bend, kneel, squat, reach, balance objects, carry objects, push, pull and climb ladders. He testified that he would work 40 to 60 hours per week. Lifting heavy objects was part of the job.

On January 18, 2017, the Employee injured his left knee while attempting to perform his job. His employer, Murphy & Miller, was a subcontractor on a job at Monsanto and Monsanto provided the workers' compensation insurance for the entire job. Employee indicated that all new fixtures had been put in, and when Monsanto measured, the new fixtures were off a half-inch and they were required to come in and tear out the new water closets, toilets, and water

WC-32-81 (6-01)

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lines. He indicated there was a row of lavatories where he had to go and take the valves off so he could drain the system. It required him to get down very low beneath the lavatories. He twisted his left knee, heard a popping noise and felt immediate pain. He indicated that he could not get up on his own and another worker came in and helped him up. He had severe pain in his left knee and he could not walk without help.

Employee was accompanied by Murphy's safety supervisor to Mercy Corporate Health, where he was examined by Dr. Emerson. They took an x-ray of his knee, gave him a brace for his leg and provided him with some crutches. Dr. Emerson indicated that Employee would be sent for an MRI.

Employee continued to work while the MRI was being scheduled, as Murphy did not want him to miss work. He came into the shop for three or four days and they would give him things to solder. He indicated that his leg was in a brace and he used crutches.

The MRI was performed and it indicated a torn meniscus and a small PCL tear. Dr. Emerson told him that he would refer him out to have surgery. Employee had a week-long vacation scheduled with family and friends in Costa Rica. Not wanting to lose money by cancelling, he asked Dr. Emerson if he could still take the vacation. Dr. Emerson advised Employee that it would not be a problem since it would take some time to get him in to see an orthopedic surgeon. He cautioned him to keep the brace on and use his crutches.

Employee testified that he took his trip to Costa Rica and did nothing on the trip except lay around the pool, most of the time. He kept his knee brace on and used his crutches anytime he ambulated. However, he noticed that his left leg was swollen and he became tired and short of breath. When he returned to the United States, he was so weak that he could hardly get off the plane. The next day, he was barely able to breathe, so his wife took him to St. Anthony's Medical Center, where he was hospitalized for five days, from February 6, 2017 until February 11, 2017.

The diagnoses were deep vein thrombosis (blood clots) in his left leg, which caused pulmonary embolism in both lungs, and respiratory failure with hypoxia.

During his hospitalization, Employee was given medication to dissolve the clots and therapy to improve his breathing. He was discharged with a prescription for the blood thinner, Eliquis. Employee was told that he had to stay on Eliquis, or some kind of blood thinner, for one year. At a minimum, he had to stay on them for six months without a break. After six months, he could stop taking Eliquis temporarily, to have surgery, and then following the surgery, he would go back on the Eliquis until a year had passed.

Dr. Brian Fissel was authorized to be the treating physician for Employee's knee surgery. Employee first saw Dr. Fissel on February 25, 2017. Dr. Fissel agreed with Dr. Hugo that Employee had to be on Eliquis for six months before surgery could be done. During that six-month period, Employee saw Dr. Fissel every month. He also had a course of physical therapy, some injections in the knee, and fluid drained from the knee. Employee was off work for the entire six-month period. After the six months had passed, Employee stopped taking the blood thinners for a month. Dr. Fissel performed surgery on the left knee on September 15, 2017. Following the surgery, Employee had a course of physical therapy which covered 24 visits between September 20, 2017 and November 20, 2017. Following surgery, Employee resumed

WC-32-81 (6-81)

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taking the blood thinners, with the intention of taking it through the beginning of 2018, until one year had passed since his initial onset of deep vein thrombosis.

Employee testified that he followed up with Dr. Fissel on September 29, October 17, November 11, and December 18, 2017, when he was released. After his November 11, 2017 visit to Dr. Fissel and before his last visit on December 18, 2017, Employee had another episode of deep vein thrombosis (blood clots), and a pulmonary embolism toward the end of November of 2017. He had trouble breathing, so his wife took him back to the hospital. He was put in the intensive care unit for three days, from November 25, 2017 until November 28, 2017. During the three-day hospitalization, a therapist worked with him to get his oxygen levels high enough so he could go home.

Since he has now had two episodes of blood clots and pulmonary embolism, the doctors have indicated that he now has to be on Eliquis or a similar type of blood thinner for the rest of his life.

At his last visit to Dr. Fissel, Dr. Fissel gave him permanent restrictions of no ladders, no squatting, no climbing, and no kneeling.

In the mid 1980's, while working for Finch Plumbing, Employee stepped on a nail and it pierced his foot between the third and fourth toes. After completing treatment for that injury, Employee continued to experience pain across the metatarsal heads.

In November 2005, while working for Bieg Plumbing, Employee suffered an injury to his low back. He was diagnosed with a disc herniation at L5-S1 to the left and with left leg radiculopathy. Employee was taken to surgery for an L5-S1 discectomy. Following his release from treatment for that injury, Employee continued to complain of pain with increase in activity, specifically with bending, turning or twisting. He stated that sitting for an hour or standing longer than 30 minutes would result in pain. Employee testified that his low back caused him difficulties performing all aspects of his job, while working at Bieg, and that he was let go because of his inability to perform at 100 percent.

Opinion Evidence

Dr. Volarich

Claimant offered the deposition testimony, Independent Medical Examination (IME) dated August 8, 2006, IME dated April 16, 2018, and an Addendum to IME of April 16, 2018 dated February 28, 2019 of Dr. David Volarich, D.O., as Exhibit 9. He was deposed on July 12, 2019. Dr. Volarich evaluated Employee on August 8, 2006 and April 16, 2018. His diagnoses that were present prior to January 18, 2017 included:

1) Lumbar left leg radiculopathy secondary to disc protrusion L5-S1 - S/P left sided L5-S1 laminotomy and discectomy.

2) Chronic lumbar syndrome secondary to postoperative changes L5-S1 as well as disc bulging and protrusions L2-3, L3-4, and L4-5 with occasional left lower extremity paresthesias.

3) Left foot puncture wound with infection - S/P surgical debridement and antibiotic therapy.

WG-32-011 (6-01)

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Within a reasonable degree of medical certainty he assigned ratings for the injuries prior to January 18, 2017. The ratings assigned were:

1. 35 percent permanent partial disability of the body rated at the lumbar spine due to his lumbar left leg radiculopathy that required laminotomy and discectomy at L5-S1. The rating accounts for his chronic back pain syndrome, loss of motion, left lower extremity paresthesias and mild sensory loss along the L5 nerve root.
2. 15 percent permanent partial disability of the left foot due to the puncture wound and infection that required debridement and caused ongoing soft tissue scarring and contracture of the toes as well as difficulty with prolonged weight bearing.

Pertaining to, and as a direct result of, the injury sustained on January 18, 2017, while in the employ of Murphy & Miller Company, Dr. Volarich rated "35 % permanent partial disability of the left lower extremity at the knee due to the torn medial meniscus that required arthroscopic partial medial meniscectomy. The rating accounts for ongoing discomfort, loss of motion, crepitus, swelling, and weakness in the left lower extremity. There is a 25% permanent partial disability of the body rated at the pulmonary system due to the deep vein thrombosis causing bilateral pulmonary emboli on two occasions. The rating accounts for dyspnea on exertion, loss of endurance, and easy fatigability. The rating also accounts for the need for lifelong anticoagulation."

Dr. Volarich assigned the following restrictions:

1. Limit repetitive stooping, squatting, crawling, kneeling, pivoting, climbing, and all impact maneuvers.
2. Be cautious navigating uneven terrain, slopes, steps, and ladders especially if he must handle weight, and handle weight to tolerance.
3. Limit prolonged weight bearing including standing or walking to 60 minutes or to tolerance. Additionally, if he must be on his knees for any reason, he should appropriately pad the surface upon which he is kneeling.
4. Pursue an appropriate strengthening, stretching, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking, or swimming to tolerance daily.

When asked to explain his diagnoses of residual shortness of breath on exertion, easy fatigability, and lack of endurance secondary to the pulmonary emboli, Dr. Volarich responded with a short explanation of the effects of the emboli on the lungs. "The thing that happens after a pulmonary embolus is the blood clot doesn't just go away. It has already caused damage to the circulation in the lungs. Part of the lung, when tissue has died, there's not a complete infarct where there's a wedge defect of the lung, but there's scarring of the lung from these clots. That prevents efficient gas exchange. He cannot move oxygen and get rid of carbon dioxide as efficiently, that's why he's having these symptoms. He fatigues very easily because he's not getting enough oxygen."

WC-52-01 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

Dr. Volarich is uncertain whether Employee is able to return to the open labor market in the future. He notes that Employee is 60 years old at the time of the second IME. He opined that if vocational assessment can identify a job for which Employee is suited, or finds that he can be retrained, he has no objection with Employee attempting to return to work based on the assigned restrictions. If the vocational assessment is unable to identify a job for which Employee is suited, it is Dr. Volarich's opinion that Employee is permanently and totally disabled as a direct result of the work-related injury of January 18, 2017 in combination with his preexisting conditions.

Dr. Fissel

Employer and Insurer offered the final rating report of Dr. Brian Fissel as Exhibit A. Dr. Fissel, Employee's treating orthopedic surgeon issued a final rating report dated April 20, 2018. It is his opinion, within a reasonable degree of medical certainty, that the injury sustained on January 18, 2017, resulted in 5% permanent partial impairment of his left knee. Employee will not require any further medical treatment, surgical treatment, physical therapy, durable medical equipment or medical prescriptions secondary to his knee portion of his work-related injury. He continued, "The patient did have a deep venous thrombosis and pulmonary embolism subsequent to this work injury which may require treatment, but I will leave that up to his primary care physician. The patient may require a knee replacement surgery, but he had preexisting degenerative changes and this would be secondary to his work-related injury."

On December 18, 2017, Dr. Fissel placed Employee at maximum medical improvement. At that time, Dr. Fissel placed restrictions on Employee of no climbing on ladders, no squatting, no climbing, and no kneeling. (Exhibit 11) It was Dr. Fissel's opinion that the deep vein thrombosis and pulmonary emboli from his left lower extremity was a direct result of his work-related injury.

Vocational Opinions

Delores Gonzalez

Claimant offered the deposition testimony and Initial Vocational Rehabilitation Evaluation of Delores Gonzalez as Exhibit 10. She was deposed on August 5, 2019. Ms. Gonzalez examined Employee on July 28, 2018 and issued a report dated November 1, 2018. Ms. Gonzalez is a licensed rehabilitation counselor with multiple licenses and certifications.

After administering vocational tests, it was determined that Employee's reading level was 12th grade, sentence comprehension was 11th grade, his spelling was 9th grade and math was 12th grade.

Ms. Gonzalez noted that on November 17, 2017, Dr. Fissel opined that Employee could perform sedentary work only. On December 18, 2017, Dr. Fissel opined that Employee had reached maximum medical improvement and could continue to work; however, he could not do ladders, squatting, climbing, or kneeling. "If credence is given to the opinions of Dr. Fissel, Mr. Joyner could not return to his job as a journeyman plumber." Ms. Gonzalez opined that Employee may be able to perform a limited range of sedentary-to-light exertional work. It should be noted that most medium and heavy exertional jobs are more manual labor-type jobs.

WC-32-0116-01]

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

and the nature of the job would require squatting, climbing and kneeling or the job would require accommodation by the employer.

Ms. Gonzalez opined, in the alternative, "If credence is given to Dr. Volarich, then Mr. Joyner has permanent physical disabilities that prevent him from performing his past jobs or any job on the open labor market as a result of his severely reduced physical residual functional capacities."

Ms. Gonzalez noted, further, that it was important to understand, that, if forced to search for work, Employee would face extraordinary resistance in the workforce. Several factors present a hindrance to his potential for either employment or vocational rehabilitation including his age, his lack of post-secondary education to include a degree or certificate, his work experience limited to a single industry, his lack of transferable skills, and his overall reduced residual functional capacity. Employee would be searching for jobs in the unskilled level of work. Employee would be competing for jobs with individuals who are, generally, more educated and as the pool of candidates is larger for the unskilled positions, employers are apt to choose the best candidate. This is a significant hindrance in his ability to find work and, further, greatly erodes his already reduced occupational base.

Ms. Gonzalez concluded that, in light of the restrictions set forth by Dr. Fissel, it was her vocational opinion that Employee is not employable on the open labor market. His impairments remain significant despite surgery, injection therapies, regular medical attention and treatment. Employee's impairments have severely compromised his ability either to return to his past relevant jobs or to perform any job on a sustained basis.

Finally, Ms. Gonzalez opined, that Employee is not a candidate for vocational rehabilitation as he is not currently capable of any competitive work for which there is a reasonably stable job market as a result of the accident of January 18, 2017 in combination with his preexisting disabilities/conditions.

Benjamin Hughes

Employer and Insurer offered the deposition testimony and Vocational Rehabilitation Evaluation of Benjamin Hughes as Exhibit B. He was deposed on October 3, 2019. Mr. Hughes evaluated Employee on February 12, 2019 and issued a report on February 20, 2019.

Mr. Hughes is a vocational rehabilitation counselor with multiple certifications. During his deposition, he opined: "I think if you look at this gentleman's background, his educational background, as well as testing that we just mentioned here previously that Mr. Joyner's - - really his best work options would relate specifically to any kind of plumbing. Really for about 35 years he was a plumber. I think he would do quite well in doing some sales jobs relating to plumbing. He could certainly do some work as a cost estimator, or he could simply work at a plumbing supply house. Outside of that, I think he could also perform some unskilled/semiskilled positions that would include working as a parking lot attendant. He could certainly do some ticket sales, ticket taking, work as a basic cashier, an office cleaner. He could work as an usher, customer service representative, information clerk, a chauffeur, a gate guard, or a merchant patroller. He could also do some small parts assembly, work as an alarm system

WC-32-R1 (0-81)

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Inonitor, or do some security guard jobs where a person wouldn't have to have a certification or license to use a gun and such, but basically just like a sedentary security guard position."

Mr. Hughes concluded that with the restrictions imposed on Employee by either Dr. Fissel or Dr. Volarich, that Employee could compete for jobs in the open labor market. Using Dr. Fissel's restrictions, Mr. Hughes thought that Employee could compete for jobs at the light level. Using the restrictions imposed by Dr. Volarich, Mr. Hughes felt that he could compete at the sedentary and some light duty positions.

Finally, Mr. Hughes stated, "If this gentleman is found to be permanently and totally disabled, I believe this to be a clear case of his preexisting issues, in combination with the last injury, as concluded by Dr. Volarich.

RULINGS OF LAW

In *Cosby v. Treasurer of State of Missouri as Custodian for Second Injury Fund*, 579 S.W.3d 202 (Mo. Ban 2019) the Court held "section 287.220.2 must be interpreted to apply to all cases of permanent disability in which all injuries, including the subsequent compensable injury occurred prior to January 1, 2014," and "section 287.220.3 applies to all [permanent total disability] or [permanent partial disability] claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014."

RSMo. 287.220.3(2) provides claims for permanent total disability against the Second Injury Fund shall be compensable only when the following conditions are met:

"(a) a. An employee has a medically documented pre-existing 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 injury and shall not include unrelated preexisting injuries or conditions that do not 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 loss 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 WC-32-01 (0-01)

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subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter."

Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition. *Knisely v. Charleswood Corp.*, 211 S.W.3d 629, 637 (Mo. App. 2007)

A claimant must also prove that he had a preexisting permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to his employment or reemployment should he become unemployed; and (3) equals a minimum of 50 weeks of compensation for injuries to the body as a whole or 15 percent for major extremities. *Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund*, 272 S.W.3d 267, 272 (Mo.App.E.D.2008 (Citations omitted).

Section 287.220 requires us to first determine the compensation liability of the employer for the last injury, considered alone. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003).

Employee suffered considerable disabilities that were a hindrance or obstacle to his employment or reemployment which were present prior to the January 18, 2017 injury:

1. 22.7% permanent partial disability of the left foot (110 week level), as the result of a compensable work injury, specifically a puncture wound injury and infection of the left foot while in the employ of Finch Plumbing.
2. 27.5% permanent partial disability of the body as a whole rated at the lumbar spine due to lumbar left leg radiculopathy that required a laminotomy and discectomy at L5-S1 as the result of a work-related injury that occurred while Employee was employed by Bieg Plumbing on November 3, 2005.

Regarding the primary injury that occurred January 18, 2017, I find Employee sustained the following permanent partial disabilities:

1. 27.5% permanent partial disability of the left lower extremity at the knee due to the torn medial meniscus and partial tear of the posterior collateral ligament that required arthroscopic partial medial meniscectomy.
2. 20% permanent partial disability of the body rated at the pulmonary system due to deep vein thrombosis causing bilateral pulmonary emboli on two occasions.

In determining whether Employee is permanently and totally disabled is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured

WC-92-03 [6-01]

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worker, given his present physical condition. *Rader v. Werner Enterprises, Inc.*, 360 S.W.3d 285 (MO.App.2012). I find Claimant has met his burden.

I find Dolores Gonzalez' and Dr. Volarich's testimony more persuasive than the testimony of Benjamin Hughes. Ms. Gonzalez' assessment of the challenges that Employee will face competing for an unskilled job, at the sedentary or lower level, and being 62 years old a more accurate depiction of the current employment environment. Dr. Volarich deferred to the vocational rehabilitation counselor for a determination of permanent total disability but qualified that by stating that if Employee was determined permanently totally disabled, it was by combination. Ms. Gonzalez also qualified her opinion that Employee was permanently and totally disabled by combination. Mr. Hughes stated that Employee was not permanently and totally disabled but if it was determined that he was totally disabled it was by combination. This court rejects the notion that Employee is permanently and totally disabled by a combination of his preexisting injuries in combination with his subsequent injuries.

Employee suffered a torn medial meniscus and partial tear of the posterior collateral ligament. This is an injury that is not normally totally disabling. However, as a direct result of incurring that injury, Employee developed deep vein thrombosis (DVT) causing pulmonary emboli on two separate occasions. Dr. Volarich and Dr. Fissel agree that the DVT was provoked because of the immobilization and the surgery. The deep vein thrombosis with pulmonary emboli will require lifelong anticoagulation. The effects of DVT is residual dyspnea on exertion, easy fatigability, and lack of endurance. Ms. Gonzalez opined that, when abiding by the restrictions imposed by Dr. Volarich, Employee would be left with residual functional capacity of less than sedentary work.

Therefore, based on Employee's vocational expert's testimony that Employee would not be able to perform even sedentary work because of the limitations he has from shortness of breath, easy fatigability and lack of endurance, which are a direct result of the last injury alone, I find that the last injury alone, resulted in Employee's permanent total disability. Therefore, the Second Injury Fund has no liability. The Employer and Insurer is responsible for permanent total disability benefits in the amount of $911.27 per week commencing on February 9, 2018 and payable for life.

Future medical

I find that Employer and Insurer is liable to pay for whatever blood-thinning medications Employee's authorized treating doctor determines to be most effective in preventing a recurrence of deep vein thrombosis and/or pulmonary embolisms and all treatment medically necessary to treat those conditions, should they reoccur.

WIC-92-011 (R-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employer and Insurer is liable for weekly permanent total disability benefits of $911.27 per week, beginning February 9, 2018. The weekly payments shall continue for employee's lifetime, or until modified by law. In addition, Employer and Insurer shall provide the necessary medical care to prevent a recurrence of deep vein thrombosis and/or pulmonary embolisms and all treatment medically necessary to treat those conditions, should they reoccur.

Made by:

[Signature]

Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation

I certify that on **4-9-20**, 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 **my**

WIC-92-81 [6-81]

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