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, and the right foot is weak, causing walking on uneven surfaces to make him feel as if the foot will roll or break. Mr. Wilson has numbness in the toes of the right foot and uses a brace and a cane when he is outside. Mr. Wilson never returned to work after the right foot.

Improve: William Wilson

injury. Mr. Wilson can no longer lead with his right foot when climbing truck steps as he did before the 2017 accident and injury.

Mr. Wilson described his work history as including a very short time working on an oil rig followed by about 25 years as a laborer in the construction industry. In 2005, Mr. Wilson could no longer handle construction work as the result of the many knee surgeries he had sustained along with the attendant weakness in the knees and the inability to work on his knees.

Mr. Wilson started over the road truck driving; however, after he contracted the staph infection in 2011, Mr. Wilson did not work for three years and received social security disability benefits. Mr. Wilson said that the work of climbing up and down on trailers as well as strapping them down or taking the straps off was more than he could handle while struggling with the staph infection in the left knee. Mr. Wilson testified that he also gave up woodworking and mechanical work that he had enjoyed as hobbies because his cardiovascular issues left him without energy. When Mr. Wilson felt that he could return to work, he returned to Doolittle Trucking in 2015. Mr. Wilson said that he could no longer climb up and down off of the trailers because his legs would not allow it; the right leg was the better leg after the left knee staph infections and Mr. Wilson led with his right leg when climbing. Mr. Wilson could no longer handle driving more than an hour before he had to take a break and walk around. Mr. Wilson left over the road truck driving with Doolittle and began truck driving for Lazer Spot, shuttling trailers, making one and one half hour, one-way trips and then returning. Mr. Wilson described the job with Lazer Spot as less demanding although he admitted that he had difficulty using the clutch and often used both legs on the clutch and that sitting for even one and a half hours was "bad" for his legs. Mr. Wilson said that he left Lazer Spot for Jack's because the driving at Jack's only involved driving much shorter distances, 15 -minute runs in Jefferson City from one side of town to the other. Mr. Wilson was injured on his third day of work at Jack's.

Currently, Mr. Wilson takes Gabapentin as well as ibuprofen and Tylenol.

Mr. Wilson described the left knee condition after the replacement surgeries as making the right foot injury of 2017 worse because he can no longer put weight on either lower extremity; Mr. Wilson said that the left knee condition aggravated and accelerated the right foot injury. Similarly, Mr. Wilson said that the right knee condition after the right knee replacement aggravated the right foot injury because he has no strength in the right lower extremity and can no longer climb stairs. Mr. Wilson can only climb stairs that have handrails and has to place his left foot on each stair first before placing his right foot on the stair.

Mr. Wilson admitted that he had not been fired from his truck driving positions prior to his employment with Jack's and that he sometimes worked long hours at these jobs.

During his deposition testimony taken on January 9, 2020, Mr. Wilson was asked whether the fall from the roof (which occurred in 1987) was a worker's compensation injury and Mr. Wilson responded that it was.

Dr. David Volarich testified by deposition that he evaluated Mr. Wilson on August 27, 2019, and authored a report pertaining thereto on the same day. Dr. Volarich diagnosed Mr. Wilson with right foot navicular, medial and lateral cuneiform, talus and fourth metatarsal head fractures with

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Wilson

Injury No. 17-085134

a nonunion of the navicular bone as a result of the November 8, 2017 accident. With regard to preexisting injuries, Dr. Volarich diagnosed multiple right knee internal derangements resulting in multiple surgeries, including a right knee total arthroplasty, multiple left knee internal derangements followed by multiple surgeries including multiple left knee total arthroplasties, and advanced coronary artery disease including cerebrovascular and peripheral vascular disease resulting in multiple stents and angioplasties. Dr. Volarich opined that Mr. Wilson has a permanent disability of 50 percent of the right foot as the result of the accident and injury of November 8, 2017. Dr. Volarich further found preexisting disability of 50 percent of the right knee, 85 percent of the left knee and 50 percent of the body referable to the cardiovascular system. Dr. Volarich opined that Mr. Wilson's right foot injury combined with his preexisting injuries to his right knee, his left knee and his cardiovascular system to render him permanently and totally disabled. Dr. Volarich stated that Mr. Wilson's cardiovascular disease aggravated and accelerated the right foot injury of November 8, 2017, in that the poor blood flow resulting from the blocked arteries did not allow the navicular bone in the right foot to heal.

Records from Dr. McAleer note concerns that the navicular bone in the right foot was not healing properly and that efforts were being made to have Mr. Wilson decrease or cease tobacco use. Records from the Columbia Orthopedic Group, Dr. Brian Kleiber for February 26, 2019, include the statement that Mr. Wilson did not want to proceed with revision surgery of the right foot because of the issues with his staph infection in conjunction with knee replacement surgery.

Records from the Division of Workers' Compensation reflect a settlement for the August 4, 1992 injury while working for Hagemeyer Concrete based on a permanent disability of 55 percent of the left knee.

Records from the Division of Workers' Compensation reflect Mr. Wilson's work injury to his right knee on August 5, 1987, while employed by Capital City Home Improvement, well as correspondence from the workers' compensation carrier, Transamerica Insurance Services, indicating that benefits were being provided, and multiple copies of treatment records which include the right knee surgeries with Dr. Ryan and Dr. Smith. The records also show that Mr. Wilson's file with the Division of Workers' Compensation was closed in 1992 after Mr. Wilson failed to appear at conferences set by the Division of Workers' Compensation before a legal advisor on a regular basis since 1989.

APPLICABLE LAW

RSMo Section 287.220.3(2) No claims for permanent partial disability occurring after January 1, 2014, 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) 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:

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**Employee:** William Wilson

**Injury No.:** 17-085134

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

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

**RSMo Section 287.020.3 (1)** In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident 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.

**(2)** An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

**(3)** An injury resulting directly or indirectly from idiopathic causes is not compensable.

**(4)** A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

**(5)** The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease.

**Employee:** William Wilson

**Injury No.:** 17-085134

or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

In *Michael Lexow v. Treasurer of Missouri as Custodian of Second Injury Fund*, when interpreting § 287.220.3(2)(a), the Commission determined that "we are of the opinion that the employee must prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test." (emphasis added) Award p. 8. The Commission again adopted this interpretation in *Everett Ptomey v. Treasurer of Missouri as Custodian of Second Injury Fund*. Award p. 5.

The claimant, William Wilson, has failed to sustain his burden of proof that he is permanently and totally disabled as the result of his November 8, 2017 injury to his right foot in combination with a single preexisting disability that meets the 50-week requirement set out in section 287.220.3(2).

Based on Mr. Wilson's testimony and the opinion of Dr. Volarich, I find that the permanent disability resulting from the November 8, 2017 injury to the right foot is 42.5 percent of the right foot. Similarly, and based on Mr. Wilson's testimony and the opinion of Dr. Volarich, I find that the disability to the left knee from the August 4, 1992 injury is 55 percent of the left knee; the disability from the right knee injury of August 5, 1987, is 35 percent of the right knee; and the disability resulting from the cardiovascular condition prior to November 8, 2017, is 35 percent of the body.

Mr. Smith has demonstrated that his disability from the right knee injury is 35 percent of the knee or 56 weeks, the disability from the left knee is 55 percent of the knee or 88 weeks, and the disability from the cardiovascular condition prior to November 8, 2017 is 35 percent of the body or 140 weeks. Each of the three preexisting disabilities is more than 50 weeks.

I find that Mr. Smith sustained work related injuries in 1987 and 1992. Division of Workers' Compensation records support Mr. Wilson's testimony that he injured his right knee and left knee, respectively, as a result of accidents while working for Capital City Home Improvement and Hagemeyer Concrete, respectively.

I find that Mr. Wilson's preexisting cardiovascular condition aggravated and accelerated the 2017 injury to the right foot. Dr. Volarich testified that Mr. Wilson's right foot did not heal as anticipated in part as the result of diminished blood flow stemming from his cardiovascular condition. I find Dr. Volarich's opinion credible. There was no conflicting medical evidence.

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Employee: William Wilson

Injury No. 17-085134

Dr. Volarich testified credibly to the permanent and total disability resulting from the combination of the 2017 right foot injury with the 1992 left knee, 1987 right knee, and preexisting cardiovascular condition. Similarly, Mr. Wilson testified credibly to his inability to work as the result of the combination of his disabilities.

I find, however, that the requirements of Section 287.220.3(2) have not been met and that Mr. Wilson is not entitled to permanent and total disability benefits from the Second Injury Fund.

I certify that on 7-21-20

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 $\qquad$ unp