Timothy R. McCann v. Change Healthcare Inc. Netsmart

This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge (ALJ) allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

We affirm the ALJ’s award of 5% permanent partial disability (PPD) of the body as a whole (BAW) related to the employee’s June 1, 2018, work injury, consistent with physical medicine and rehabilitation expert Dr. Ted Lennard’s expert opinion. Dr. P. Brent Koprivica’s higher evaluation of 25% PPD of the body attributable to the primary injury referenced the employee’s “global disability.”^{1} This context persuades us that Dr. Koprivica considered disability factors unrelated to the employee’s primary injury in his assessment. We, therefore, find Dr. Lennard’s 5% PPD BAW evaluation the most competent and credible evidence in the record regarding the nature and extent of disability related to the employee’s primary injury.

We further find that the employee is not permanently and totally disabled (PTD) based on vocational expert Bob Hosutt’s April 6, 2021, evaluation of his employability and earnings capacity. Mr. Hosutt noted, “Mr. McCann presents with an extensive employment background in the medical industry with a substantial portion in executive level sales positions involving highly technological equipment.”^{2} He concluded the employee “has sufficient knowledge, skills and capacity necessary to perform work within the sedentary category while staying within the restrictions generally agreed upon by his medical evaluators.”^{3}

Further evidence of the employee’s ability to compete in the open labor market was the fact that he continued to work without restrictions for nine months after his primary injury until the employer’s successor laid him off on February 1, 2019. The employee testified that he thereafter collected unemployment benefits for twenty weeks in the amount of $6,400.00 and sought jobs that did not require travel and that allowed him to work remotely or in the Springfield area.

We adopt the ALJ’s credibility finding, based on his observation of the employee at the hearing, that the employee is less than credible as to what is causing his ongoing subjective complaints. This finding is consistent with Dr. Koprivica’s observation that the severity of the employee’s disability presentation was unusual in response to his objective physical impairment.

Based on the above evidence we find that the employee is not PTD. We are not bound by Drs. Lennard and Koprivica’s contrary opinions.

^{1} Transcript, p. 3953 ^{2} Id., p. 4779. ^{3} Id.

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Injury No. 18-110427

Because, as we have found, the employee is not PTD, the issue of Second Injury Fund (SIF) liability under §287.220.3 RSMo is moot.

Even assuming we consider the employee to be PTD, we concur with the ALJ's conclusion that his SIF claim would fail because the employee's current disability is due to a deterioration of his functional abilities resulting from the continued progression of his morbid obesity, severe bilateral knee arthritis, diabetes, and peripheral neuropathy subsequent to the primary injury.

The plain language of §287.220.3(2)(a) RSMo by specifically referencing "preexisting" PPD, clearly precludes any consideration of disabilities that come after the primary injury. As stated in *Lawrence v. Joplin R-VII School Dist.*, 834 S.W.2d 789, 793 (Mo. App. 1992), "The view urged by the claimant would convert the Second Injury Fund to a form of health insurance which it is not."

The employee's evidence further fails to satisfy the elements of §287.220.3 RSMo as interpreted by the Supreme Court of Missouri in that no medical expert opined that his PTD resulted solely from a combination of disabilities that qualify under §287.220.3(2)(a) RSMo and disability attributable to the June 1, 2018, primary injury. *Treasurer of the State as Custodian of the Second Injury Fund v. Parker*, 622 S.W.3d 178 (Mo. App. 2021).

This clarification of the administrative law judge's award does not detract from his correct analysis of the evidence in the record or his ultimate legal conclusions.

**Conclusion**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Kevin Thomas, dated October 15, 2021, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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 24th day of August 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney Campbell, Chairman

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Kathryn Swan, Member

Attest:

Secretary

The employee was never diagnosed with degenerative arthritis in the lumbar spine until his physician Dr. Kelly A. Trygg made an entry on January 4, 2019, after the employee's June 1, 2018, work injury. ${ }^{4}$ There is no evidence that the employee's preexisting degenerative disk disease in his lumbar spine was permanently disabling. On the contrary, the overwhelming evidence is that the employee's low back injury was substantially aggravated by his preexisting morbid obesity, diabetes, and bilateral degenerative arthritis in both knees, as Dr. Ted Lennard testified. Dr. P. Brent Koprivica also testified that the employee's preexisting morbid obesity made his lumbar injury worse and, in part, resulted in his needing to lie down and use assistive devices such as a cane, a mechanized lift chair, and a hospital bed. The employee testified that the injury to his back resulted in him immediately not being able to travel for his job, walk without a cane, or sleep without pain-induced deprivation.

The employee ultimately lost his job due to poor performance. He was the only person on the employer's Springfield team to be discharged, just seven months after his work injury forced him to work from home and less than a month after he reached maximum medical improvement (MMI). The only logical inference is that the employee lost his job, when no one else did because he was unable to perform the essential duties of the job, which included travel as his co-worker Yvonne Massey testified. The employee went from earning $\ 135,000.00 a year to not being able to find employment. Ms. Massey testified that the employee started falling asleep at work "daily" (co-workers would wake him up), wasn't answering client calls and emails on time, and wasn't writing contracts, all of which his clients "noticed."5 The employee told Ms. Massey he had trouble sleeping because of pain in his back and knees, that "he was just in pain all the time," and taking pain medication. ${ }^{6}$ Ms. Massey testified that she never recalled the employee using a cane before the work injury, but that afterward he became 100\% dependent upon his cane, stopped going out for lunch, and eventually worked from home. He would use the walls in the office for support when walking.

The overwhelming evidence is that the employee sustained a back injury from his fall at work that resulted in substantial disability. Dr. Koprivica's 25\% body as a whole permanent partial disability evaluation for the work injury in isolation should be adopted.

The Commission is not authorized to substitute its own opinions, unsupported by competent and substantial evidence, regarding the medical causation of the employee's permanent total disability (PTD). Abt v. Miss. Lime Co., 388 S.W.3d 571, 578 (Mo. App. 2012); Williams v. City of Jennings, 605 S.W.3d 152, 169 (Mo. App. 2020). The opinion of uncontradicted medical experts cannot be ignored by the Commission when dealing with complicated medical issues beyond the understanding of lay persons, "medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." Malam v. Dep't of Corr., 492 S.W.3d 926, 929 (Mo. banc 2016) citing Gordon v. City of Ellisville, 268 S.W.3d 454, 461 (Mo. App. 2008).

The administrative law judge (ALJ) found Dr. Ted Lennard to be more credible than Dr. T. Brent Koprivica. Dr. Lennard testified that all of the employee's preexisting disabilities (morbid obesity, diabetes, and bilateral knee degenerative joint disease) met the fifty-week threshold,

[^0]

[^0]: ${ }^{4} Transcript, p. 484.

{ }^{5} Id., p. 24

{ }^{6}$ Id., p. 26.

http://www.healthline.com/health/health-news/2019/07/21/health-news/21110427.html?utm_source=g1

that they aggravated and accelerated the work injury, and that the preexisting disabilities combined with the employee's primary injury to cause PTD. He opined, "The injuries McCann sustained in his work accident on 6/1/18 were enhanced by his pre-existing morbid obesity, diabetes, and bilateral severe knee DJD [degenerative joint disease]. These conditions directly and significantly aggravated or accelerated his work injuries." The employee's PTD was the result of the work injury in combination with qualifying preexisting disabilities:

Q: And that permanent total disability arises from the combination of his primary work injury to his back, along with this previous disabilities to his knee, morbid obesity and diabetes?

A: It's a majority of those latter three diagnoses. ${ }^{8}$

"An employee satisfies the second condition by showing the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition." Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021). "The statute does not require the employee know his injury equals a minimum of 50 weeks of PPD before suffering the injury. . ." Id., 182. Whether the employee may also be PTD without consideration of the work-related disability is irrelevant and not an issue to be considered by the Commission. ("The existence of non-qualifying disabilities does not count against (or for) the claimant. . ." Id.) Dr. Lennard determined that the employee reached MMI when he finished care with Dr. Trygg on January 4, 2019, which coincides with less than four weeks after when the employee was discharged from his employment and never worked again. There is clear evidence that the work injury caused the employee's termination and rendered him unemployable.

The record reflects that the employee had severe and debilitating degenerative arthritis in both knees, right worse than left, for twenty or more years before the work injury, which required injections. Repeated recommendations were made for bilateral knee replacements, at least as far back as June 19, 2006, and most recently on February 17, 2016, but they could not be performed because the employee was morbidly obese and unable to lose weight. ${ }^{9}$ It was medically documented that he walked with a limp, had bone-on-bone x-rays in both knees, required multiple knee injections, and had a visual varus deformity of the knees. Yvonne Massey testified that before the injury the employee's knee hurt, he would walk gingerly, and "I never saw Tim run