William Wilson v. Jack's Truck Rental Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-085134**

**Employee:** William Wilson

**Employer:** Jack's Truck Rental Inc. (settled)

**Insurer:** Missouri Employer's Mutual Insurance (settled)

**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 July 21, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued July 21, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 19th day of March 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I believe that the administrative law judge in this case improperly applied § 287.220.3. The administrative law judge incorrectly determined that employee was not permanently and totally disabled due to his November 8, 2017 primary injury to his right foot in combination with his preexisting disabilities. The administrative law judge determined that, based on Dr. David Volarich's testimony, that employee was 42.5 % permanent partially disabled (PPD) at his right foot from the November 8, 2017 injury, 55\% PPD at the left knee from the August 4, 1992 injury, 35\% PPD at the right knee from the prior right knee injury from August 5, 1987, and 35\% PPD due to his preexisting cardiovascular condition. The administrative law judge also determined that employee's preexisting cardiovascular condition aggravated and accelerated his November 8, 2017 injury to the right foot, and noted that Dr. Volarich testified that employee's right foot did not heal as anticipated in part as the result of diminished blood flow stemming from his cardiovascular condition.

Each of employee's preexisting conditions satisfy $\S 287.220 .3(2)$ (a)a, and meet the 50 week threshold. Therefore, I believe that employee, under $\S 287.220 .3(2)$ (a)a, should be able consider all of his qualifying preexisting in disabilities when determining whether he is entitled to an award from the Second Injury Fund. I believe that employee's situation is similar to that of the claimant in SIF v. Jonathan Parker ${ }^{1}$. In Parker, the Court determined that

[S]o long as an employee has a preexisting disability that satisfies one of the thresholds in Subsection 3 and the employee has a qualifying subsequent primary injury, then the Commission may consider less serious preexisting injuries and disabilities as well as all other characteristics of the individual in determining whether an employee is permanently and totally disabled as a result. Thus, even applying Subsection 3, we find that the facts as found by the Commission are sufficient to warrant the making of the award.

Dr. Volarich, the only medical expert to testify in employee's case, opined that employee's November 8, 2017 right foot injury combined with his preexisting injuries to his right knee, left knee and his cardiovascular system to render him permanently and totally disabled. Dr. Volarich also believed that employee's cardiovascular disease aggravated and accelerated employee's November 8, 2017 injury, in that the poor blood flow resulting from the blocked arteries did not allow the navicular bone in the right foot to heal. I believe that employee met his burden and established he is permanently and totally disabled from the combination of his November 8, 2017 injury and his preexisting disabilities.

For these reasons, I would find Second Injury Fund to be liable for employee's permanent total disability. Because the majority of the commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1}$ (WD83030) (Transferred to the Supreme Court on September 4, 2020 - SC98704).

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: November 8, 2017
5. State location where accident occurred or occupational disease was contracted: Cole County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right foot
14. Nature and extent of any permanent disability: 42.5 % Right foot
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: William Wilson

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: ---
3. Weekly compensation rate: $\ 400.00
4. Method wages computation: By agreement

1. Amount of compensation payable: Employer previously settled.
2. Second Injury Fund liability: No
3. Future Requirements Awarded: None

Employee: William Wilson

Injury No: 17-085134

Employer: Jack's Truck Rental (previously settled)

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: $\quad \mathrm{N} / \mathrm{A}$

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on June 23, 2020. Memoranda were submitted by July 10, 2020.

The parties stipulated that on or about November 8, 2017, the claimant, William Wilson, was in the employment of Jack's Truck Rental, Inc. (Jack's). The parties stipulated that all facts relevant to Mr. Wilson's relationship with the employer/insurer in the underlying primary claim are resolved in Mr. Wilson's favor in his pending claim against the Second Injury Fund. The parties stipulated to a compensation rate of $\ 400.00 per week for all benefits.

The issue to be resolved by hearing is the liability of the Second Injury Fund. (Permanent total disability is alleged.)

The parties stipulated that the claim against the employer/insurer settled based on a permanent disability of 42.5 percent of the right foot; the parties do not agree that this settlement represents the extent of permanent disability resulting from the injury of November 8, 2017, in the pending claim against the Second Injury Fund.

The parties stipulated to February 26, 2019, as the date of maximum medical improvement.

The claimant, William Wilson, was born in 1963, making him 56 years old as of the date of hearing. Mr. Wilson completed the $9^{\text {th }}$ grade in the Jefferson City School District and testified that he had to repeat three grades before the completion of his $9^{\text {th }}$ grade year. Mr. Wilson said that he has dyslexia, which caused him to attend special education classes while he was in school. Mr. Wilson had no additional education after beginning his $10^{\text {th }}$ grade year and then terminating his education.

**Employee:** William Wilson

**Injury No.:** 17-085134

Mr. Wilson testified to his health history prior to November 8, 2017, as follows:

In 1979, Mr. Wilson injured his right knee while playing football and had ligaments in his right knee repaired surgically. Mr. Wilson described the right knee as unstable thereafter, but he was able to work construction. On August 5, 1987, Mr. Wilson fell off of a second story roof, a distance of about 16 feet, while hanging a long piece of guttering. Mr. Wilson underwent a right knee construction with Dr. Ryan on November 3, 1987. Because the knee remained weak and swollen, he had another right knee construction performed by Dr. Pat Smith on March 31, 1988. The right knee continued to be unstable and painful; Mr. Wilson had a right knee replacement performed on October 4, 2011, by Dr. Michael Snyder. Mr. Wilson said that his pain improved from a level nine out of ten before the surgery to a level six out of ten post surgery, but that the right knee continued to feel unstable and loose, with popping and clicking. Mr. Wilson has had difficulty maneuvering on stairs and uneven ground since the last surgery on the right knee in 2011.

On August 4, 1992, Mr. Wilson "blew out" his left knee while pouring concrete for Hagemeyer Concrete. On October 9, 1992, Dr. Cameron cleaned out cartilage and ligament in the left knee. Mr. Wilson continued to have trouble with the left knee and had a second surgery on the left knee performed by Dr. Pat Smith in February of 1994. Mr. Wilson had a left knee replacement with Dr. Snyder shortly after the right knee replacement in 2011. The left knee replacement resulted in a staph infection, causing Mr. Wilson to need two additional left knee replacements performed by Dr. Snyder in 2011. On January 11, 2012, Mr. Wilson had surgery with Dr. Alito to remove the prosthetic in the left knee; on March 21, 2012, a new artificial joint was placed in the left knee along with skin grafting. Mr. Wilson had a ninth surgery on the left knee in 2012 to remove an infected area of the knee.

In 1999, Mr. Wilson was initially diagnosed with coronary artery disease which caused impaired blood flow. Mr. Wilson had two heart attacks and eight stents placed in his arteries between 2000 and November of 2017. Mr. Wilson's cardiovascular issues cause him to be short of breath, unable to walk farther than about 150 feet and to suffer from chest pain, particularly while lying down, eating, and walking.

On November 8, 2017, while working for Jack's, Mr. Wilson was getting ready to unload pallets when the higher of two stacked pallets fell on him, the brunt of the weight on his right foot. Mr. Wilson said that four bones were broken and that he had surgery with Dr. McAleer, who put the broken bone back together with screws. Mr. Wilson said that his right foot never healed and that his care was transferred to Dr. Kleiber. Dr. Kleiber recommended a total fusion of the right foot to solidify the bones; Mr. Wilson does not want additional surgery for fear of another staph infection such as the one following his left knee replacement. Mr. Wilson said that the blood flow to his feet is impaired, increasing the possibility of a staph infection. Mr. Wilson has pain at a level six or seven out of ten in his right foot, his right foot swells if he is on it for an extended period of time, a