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.

- 2 -

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 down the hall, you know."10 Dr. Lennard testified that it was "extremely unlikely" that either knee would have been asymptomatic before the injury. ${ }^{11}$ He assigned a preexisting disability of 30 % to the left knee and 35 % to the right knee and testified that the disabilities significantly aggravated and accelerated the work injury. The record also reflects that the employee suffered from longstanding morbid obesity and uncontrolled insulindependent diabetes, both of which not only prevented him from having knee surgery but hindered his recovery, impacted his mobility, and made him fall asleep at work because pain in his back and knees affected his sleep.

"The Commission was not free to arbitrarily disregard and ignore Dr. Liss' and Dr. Sky's testimony regarding Claimant's preexisting disabilities and base its finding 'upon conjecture or its own mere personal opinion unsupported by sufficient competent evidence.' (citations omitted)." Hazeltine v. State, 591 S.W.3d 45,63 (Mo. App. 2019). According to Dr. Lennard's testimony, both knees, morbid obesity and diabetes were qualifying SIF disabilities under

[^0]

[^0]: 7 Transcript, p. 4143.

8 Id., p. 4076.

9 Id., p. 418, 532.

10 Id., p. 26.

11 Id., p. 4069.

§287.220.3(1)(a)(iii) RSMo in that each constituted fifty weeks of PPD and aggravated and accelerated the work injury. Dr. Lennard testified that it was "really difficult to separate that [the employee's back and knees] out with his underlying morbid obesity" insofar as how much each of these conditions interacted with and aggravated the employee's work injury. ${ }^{12}$ The employee's diabetes affected his recovery from the primary injury. Dr. Lennard's testimony was consistent with the employee's testimony and medically documented preexisting disability. There is no medical evidence to the contrary. The commission must adopt Dr. Lennard's credible medical opinion and award the employee PTD against the SIF.

The ALJ found Dr. Lennard to be more credible than Dr. Koprivica. Dr. Lennard testified that the employee reached MMI on January 4, 2019, but the ALJ erroneously concluded that the date was August 31, 2018, and as a result determined that PTD occurred well after the employee attained MMI, which was not true. Dr. Lennard put the MMI date at January 4, 2019, in his report and reaffirmed that date in his testimony. ${ }^{13}$ The timing of MMI is important because the employee was terminated from his job less than a month after Dr. Lennard's MMI date of January 4, 2019, powerful evidence that the work-related disability combined with preexisting qualifying disabilities to cause PTD. It is unquestioned, and the ALJ so found, that the employee suffered PPD from the work injury in isolation.

As such, if we determine that the employee was not PTD from the work injury by itself, $\S 287.220 .3$ RSMo requires that we examine whether the work injury combined with prior qualifying disabilities to cause PTD, which the ALJ failed to do. In doing so, because of the 2014 amendments to $\S 287.220 .3$ RSMo, we must include any progression in those preexisting disabilities that occurred post-injury. When $\S 287.220$ RSMo was amended in 2012, language referring to SIF liability for PTD, which required the degree of preexisting disabilities to be fixed at the time of the work injury, was deleted:

After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for (emphasis added). If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this section for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due to permanent total disability under section 287.300 out of the second injury fund.

Section 287.220.1, RSMo (1992 Supp).

[^0]

[^0]: ${ }^{12} Transcript, p. 4067.

{ }^{13}$ Id., pp. 4043, 2097.

The language deleted in 2012 had been relied upon by prior courts to refuse to consider postinjury deterioration in preexisting disabilities when determining SIF liability for PTD:

In determining the liability of the Second Injury Fund, the Commission should consider "the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained. . ." §287.220.1 RSMo Supp. 1992 (emphasis added). This language implies the Second Injury Fund is not liable for any progression of Claimant's pre-existing disabilities not caused by Claimant's last injury. Lawrence v. Joplin R-VIII School Dist.,834 S.W.2d 789, 793 (Mo. App. 1992); See also, Wilhite v. Hurd, 411 S.W.2d 72, 76-77 (Mo. 1967) the worsening of claimant's vision in his left eye after he lost the vision in his right eye in work-related accident is not chargeable to the Second Injury Fund.

Frazier v. Treasurer of Missouri, 869 S.W.2d 152, 155 (Mo. App. 1993).

The 2012 amendments to $\S 287.220 .3$ did away with the calculation of preexisting disability at the time of the work injury and SIF liability became purely an issue of whether prior qualifying disabilities combine with the work-related disability to create PTD at any time:

(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 287.220 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:

(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; . . .

Including the progression in preexisting disabilities is consistent with case law, "Section 287.220.1 [RSMo] does not state preexisting disability or disabilities must be at MMI in order to be considered for PTD benefits." Lewis v. Treasurer of State, 435 S.W.3d 144, 155 (Mo. App. 2014). The deletions to $\S 287.220$ RSMo removed the requirement that the degree of preexisting disability be strictly evaluated as it existed at the time of the injury without consideration of progression of the preexisting disability and replaced it with a fifty-week minimum, aggravating or accelerating requirement. The ALJ was wrong to exclude progression in the employee's preexisting qualifying disabilities when determining SIF liability. By the uncontradicted medical testimony of Dr. Koprivica, who testified that preexisting morbid obesity by itself aggravated or accelerated and Dr. Lennard, which the ALJ cannot ignore in a complicated medical case such as this, the employee's morbid obesity, diabetes, left knee, and right knee were all qualifying disabilities. The Commission cannot overlook the unequivocal meaning of the doctor's testimony and ignore the more credible medical opinion on a complex medical issue. Malam v. State, 492 S.W.3d 926, 929 (Mo. banc 2016). "It need not be shown that the claimant or the employer knew of the preexisting disability prior to the work injury. Citing Messex v Sachs Elec. Co., 989 S.W.3d 206,214 (Mo. App. 1999)." Lewis, supra at 155. Moreover, the very mechanism of the accident is evidence that the preexisting disabilities aggravated and accelerated the injury, where the wheelchair tipped over because the employee was morbidly obese, the injury was more severe because he was morbidly obese and he was using the wheelchair because he had bad knees. The employee is clearly PTD when the disability from the work injury is combined with prior disabilities, including the post-injury progression.

Because the majority awards only a negligible amount of disability related to the employee's primary injury and denies his SIF PTD claim, for the above reasons, I respectfully dissent.

Shalonn K. Curls, Member

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

OCTOBER 15, 2021

18-110427

Scan Copy

*Employee : TIMOTHY R MCCANN 13318209 4 844 W MAPLEWOOD ST SPRINGFIELD, MO 65807*Employee : CHANGE HEALTHCARE INC 13318210 0 3055 LEBANON PIKE NASHVILLE, TN 37214-2230*Insurer : STARR INDEMNITY & LIABILITY CO 13318212 4 c/o SEDOWICK CLAIMS MANAGEMENT SER PO BOX 14155 LEXINGTON, KY 40512-4155*Asst Atty General : ATTY GENERAL ERIC SCHMITT 13318208 7 149 PARK CENTRAL SQ STE 1017 SPRINGFIELD, MO 65806

*Employee Attorney : RANDY C ALBERHASKY 415 N BOONVILLE AVE SPRINGFIELD, MO 65806*Employer : NEISMART 13318211 7 1959 E KERR ST SPRINGFIELD, MO 65803-4775*Insurer Attorney : BRANDY L JOHNSON 1740 INNOVATION DR BOX 18 CARBONDALE, IL 62903

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

AMAND ON HEARING HLP

Please visit our website at www.labor.mo.gov/DWC

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**MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS**

Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

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WC-142 (05-21)

AWARD OF HEARING

RUP

Relay Missouri: 800-735-2966

**Employee:** Timothy McCann

**Dependents:** N/A

**Employer:** Change Healthcare

**Additional Party:** Second Injury Fund

**Insurer:** Starr Indemnity & Liability Company

**Hearing Date:** 7/20/21 & 8/16/21

**Injury No.:** 18-110427

**Before the**

**Division of Workers'**

**Compensation**

**Department of Labor and Industrial**

**Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** KRT/bh

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. Dates of accident or onset of occupational disease: June 1, 2018

1. State location where accident occurred or occupational disease was contracted: Greene County, MO

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 happened or occupational disease contracted: Claimant was returning from a business trip. While using a wheelchair to transverse a jetway, the attendant assisting him caused the wheelchair to tip forward and Claimant fell to the floor.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Parts of body injured by accident or occupational disease: Low back and left hip
3. Nature and extent of any permanent disability: See award

15.Compensation paid to date for temporary disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer? $2,465.29

17.Value necessary medical aid not furnished by employer/insurer? $0.00

1. Employee's average weekly wage: Sufficient to meet maximum rates
2. Weekly compensation rate: $923.01 TTD & $483.48 PPD
3. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

20 weeks of permanent partial disability from Employer $9,669.60

1. Second Injury Fund liability: None
2. Future requirements awarded: None

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: Randy Alberhasky, Esq.

**Employee:** Timothy McCann

**Dependents:** N/A

**Employer:** Change Healthcare

**Additional Party:** Second Injury Fund

**Insurer:** Starr Indemnity & Liability Company

**Hearing Date:** 7/20/21 & 8/16/21

**Injury No.:** 18-110427

**Before the**

**Division of Workers'**

**Compensation**

**Department of Labor and Industrial**

**Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** KRT/bh

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The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on July 20, 2021 and August 16, 2021. The record was closed on August 16, 2021, and the parties were afforded an opportunity to submit briefs or proposed awards within two (2) weeks. The parties asked for additional time to complete the proposed awards and the undersigned granted the request. The proposed awards were thereafter timely submitted.

The claimant appeared personally and through his attorney, Randy Alberhasky. The employer and insurer appeared through their attorney, Brandy Johnson. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about June 1, 2018, Change Healthcare was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Starr Indemnity & Liability Company.
2. On the alleged injury date of June 1, 2018, Timothy McCann was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.
3. On or about June 1, 2018, the claimant sustained an accident, which arose out of and in the course of his employment with the employer.
4. The above-referenced employment and accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.
5. The claimant notified the employer of his injury as required by Section 287.420, RSMo.
6. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of June 1, 2018, the claimant's average weekly wage was sufficient to allow the maximum compensation rates of $923.01 for temporary total disability compensation/permanent total disability compensation, and a compensation rate of $483.48 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the claimant in the amount of $0.00, representing 0 weeks in disability benefits.

(9) The employer and insurer have provided medical treatment to the claimant, having paid $2,465.29 in medical expenses.

The issues to be resolved by hearing include:

(1) Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed?

(2) Whether the claimant has sustained injuries that will require additional or future medical care in order to cure and relieve the effects of the injuries?

(3) Whether the claimant sustained any permanent disability as a consequence of the alleged accident and, if so, what is the nature and extent of the disability?

(4) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for permanent total disability compensation?

EVIDENCE PRESENTED

The claimant testified at the hearing in support of his claim. Also, the claimant presented at the hearing of this case the testimony of two witnesses - Yvonne Massey and Phillip Eldred. In addition, the claimant offered for admission the following exhibits:

Exhibit 1 - Mercy, 737 pages certified 6.11.19

Exhibit 2 - Mercy Clinic, 4 pages certified 6.26.17

Exhibit 3 - Mercy Endocrinology, 357 pages certified 6.24.19

Exhibit 4 - Mercy Gastroenterology, 72 pages certified 6.27.19

Exhibit 5 - Mercy Internal Medicine, 1,344 pages certified 6.24.19

Exhibit 6 - Mercy Orthopedics, 185 pages certified 6.13.19

Exhibit 7 - Mercy Therapy Services, 355 pages certified 6.12.19

Exhibit 8 - Mercy Urgent Care, 50 pages certified 7.1.19

Exhibit 9 - Mercy Neurology, 12 pages certified 9.20.19

Exhibit 10 - Mercy Pain Management, 8 pages certified 10.2.19

Exhibit 11 - Mercy Podiatry, 114 pages certified 3.30.20

Exhibit 12 - Social Security file, 196 pages certified 10.14.20

Exhibit 13 - 18-110427 Claim dated 4.24.19

Exhibit 14 - 18-110427 Answer from Employer/Insurer dated 2.25.20

Exhibit 15 - 18-110427 Amended Claim

Exhibit 16 - 18-110427 Amended Answer from SIF dated 5.2.19

Exhibit 17 - 18-110427 2nd Amended Claim dated 12.17.19

Exhibit 18 - 18-110427 2nd Amended Answer from SIF dated 12.26.19

Exhibit 19 - Division File

Exhibit 20 - RSMO 287.210 letter dated 11.14.19

Exhibit 21 - RSMO 287.210 letter dated 2.4.20

Exhibit 22 - RSMO 287.215 letter dated 2.24.21

Exhibit 23 - Deposition Transcript of Dr. P. Brent Koprivica dated 12.4.20

Exhibit 24 - Video of the Deposition of Dr. P. Brent Koprivica parts 1 & 2

Exhibit 25 - Report of Dr. P. Brent Koprivica dated 8.20.19 (a. CV)

Exhibit 26 - Addendum Report dated 10.23.19

Exhibit 27 - Report of Phillip Eldred dated 9.28.20 (a. CV)

Exhibit 28 - Addendum Report of Phillip Eldred dated 7.20.21

The exhibits were received and admitted into evidence

The employer and insurer presented no witnesses at the hearing of this case. The employer and insurer offered for admission the following exhibits:

Exhibit A - Report of Dr. Ted Lennard dated 9.3.20

Exhibit B - Deposition of Dr. Ted Lennard dated 1.15.21 (B1. CV; B2. Report)

Exhibit C - Report of Michelle Sprecker dated 12.28.20

Exhibit D - Supplemental Report of Michelle Sprecker dated 2.8.21

Exhibit E - Deposition of Michelle Sprecker dated 2.24.21 (C1. CV; C2. Report; C3. Supp. Report; Errata Sheets & Signature)

Exhibit F - Claimant's Earnings

Exhibit G - Sedgwick Medical Payment Log

Exhibit H - Deposition of Timothy McCann dated 5.6.20

Exhibit I - Deposition of Robert Hosutt taken for 4.12.21

Exhibit J - CV of Robert Hosutt

Exhibit K - Omitted

Exhibit L - Omitted

Exhibit M - Report of Robert Hosutt dated 4.6.21

The exhibits were received and admitted into evidence

The Second Injury Fund did not present any witnesses. The Second Injury Fund offered for admission the following exhibits:

Exhibit I - Deposition of Timothy McCann dated 5.6.20

Exhibit II - Deposition of Robert Hosutt dated 4.12.21

Exhibit III - CV of Robert Hosutt

Exhibit IV - Report of Robert Hosutt dated 4.6.21

Exhibit V - Report of Dr. Ted Lennard dated 9.3.20

Exhibit VI - Deposition of Dr. Ted Lennard dated 1.15.21 with Exhibits

Exhibit VII - Claimant's Earnings

Exhibit VIII - FCE Checklist Talley

Exhibit IX - FCE Checklist Completed by Employee

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Request for Hearing-Final Award

- Answer of Employer/Insurer to Claim for Compensation

- Answer of Second Injury Fund to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

Timothy McCann (Claimant or Employee) is 63 years of age, having been born on October 4, 1957. He is divorced and resides with his elderly mother in Springfield, Missouri.

Claimant graduated from high school in 1976. (Exh. H at 22). He attended college for a semester at Southwest Missouri State University before attending Missouri Southern State College. He attended Missouri Southern State College from 1977-1978, taking classes in criminal justice. (Exh. H at 23-24). After a right knee ACL tear prevented him from continuing to play football, Claimant transferred to Drury University. (Exh. H at 24-25). He received an associate degree in criminal justice. (Exh. H at 24). Although he had earned approximately 120 college credit hours, Claimant did not have all of the necessary coursework to qualify for a four-year degree. Id. He was working full time and decided not to pursue a four-year degree. (Exh. H at 25). Claimant completed sufficient Dale Carnegie course work to be qualified as an instructor and he actively participated in Toastmasters International.

Claimant worked as a commercial driver for Commerce Bank in Springfield, Missouri, from 1980 to 1981. (Exh. H at 25-27). From 1981 to 1983, he was a technician and on-site manager for O'Kelly Engineering in Tulsa, Oklahoma. (Exh. H at 27). He moved to Texas in 1983 and worked for Foster Medical until 1988; his positions included driver/technician, warehouse manager, operations manager, and district manager. (Exh. H at 29). Claimant served as a branch manager for St. Paul Hospital from 1988 to 1990. (Exh. H at 30-31). He then went to work as a general and sales manager for Texas Air Supply and held this position from 1990 to 1993. (Exh. H at 31-32). In 1994 and 1995, Claimant was a general manager for Signature Health Care. (Exh. H at 33-34). At the same time, he was the purchasing and inventory manager for the Texas Rangers. (Exh. H at 34). In 1995 and 1996, Claimant worked as a sales manager for Alert Healthcare. Id. His next job was for Apria Healthcare. (Exh. H at 35). Between 1996 and 1998, he was their general manager. Id. In 1998, he transferred to the company's Cape Girardeau, Missouri, location and worked as a regional manager. Id. Around November of 1999, Claimant accepted a job with McKesson Corporation in Springfield, Missouri. (Exh. H at 35-36). He also started a vending machine business that he sold a year later. (Exh. iv at 7).

At McKesson, Claimant started as a project manager. (Exh. H at 37). In this role, he traveled to customer sites throughout the country to help with software implementation, clinical documentation, billing, database builds, modifications, and training. Id. In 2001, Claimant worked as an educator and consultant. (Exh. H at 38-39). He became a senior account executive in 2003 or 2004. (Exh. H at 39).

As a senior account executive, Claimant maintained relationships with existing clients, helped make their businesses more successful, and developed them into references. Id. He provided software, hardware, training, demonstrations, problem solving, and general advice. Id. Claimant's duties also included preparing and reviewing contracts, quotes, budgets, billing statements, and other documents. He traveled to meet with clients weekly, typically spending approximately four days with a client before returning home to complete reports and documents related to the visit. Claimant estimated that he worked 70 hours a week and 25% of that time was spent in travel; although he did a fair amount of driving, the majority of his travel was by air. (Exh. H at 40). The most physical part of his job was transporting his 45-pound suitcase and 35-pound backpack through airports. (Exh. H at 41).

In 2017, McKesson transferred Claimant's division to Change Healthcare. (Exh. H at 36). He worked as a senior account executive at Change Healthcare until the home care division was sold to NetSmart in 2018. (Exh. H at 36-37). On July 2, 2018, Claimant became an employee of NetSmart, where he continued to work as a senior account executive. (Exh. H at 95). His job duties for Change Healthcare and NetSmart were exactly the same as they had been for McKesson. Id. Claimant worked for NetSmart until he was dismissed on February 1, 2019. Id. He testified that he was dismissed for not meeting expectations, but he admitted that he did not know the exact reason he was dismissed and that other older employees were let go around the same time. (Exh. H at 96-98).

Claimant collected unemployment benefits for 20 weeks. (Exh. H at 81). He sought jobs that did not require travel and that allowed him to either work remotely or in the Springfield area. (Exh. H at 82). On October 10, 2019, Claimant completed his application for Social Security disability benefits. (Exh. 12 at 10). He was awarded benefits on November 9, 2019. (Exh. 12 at 3).

**Claimant's Prior Medical Conditions**

Prior to sustaining the work injuries of June 1, 2018, Claimant suffered from several injuries and/or medical conditions which caused him to present with certain permanent disability. These prior medical conditions include: (1) morbid obesity; (2) diabetes Type II; (3) peripheral neuropathy; (4) severe, bilateral knee osteoarthritis; (5) bilateral carpal tunnel syndrome; (6) lumbar degenerative joint disease; (7) obstructive sleep apnea; (8) a surgically repaired near amputation of the left ring and middle fingers; (9) an ACL tear with significant internal derangement of the right knee; (10) anxiety/depression; (11) venous insufficiency in the lower extremities; and (12) injuries to his cervical, thoracic, and lumbar spine. (Exh. 5; Exh. 6; Exh. 25 at 4-10, 12; Exh. A at 2-3).

In 2000, Claimant began treating with his primary care physician, Dr. Kelly Trygg, for conditions that included morbid obesity, diabetes, fatigue, and osteoarthritis of the knees. (Exh. 5 at 8-9). On June 26, 2000, she documented that back and knee pain limited Claimant's ability to exercise. (Exh. 5 at 16). On March 2, 2001, Dr. Trigg noted that Claimant was experiencing a lot of anxiety and "worsening post-traumatic arthritic pain of the knees, particularly the left knee and also his low back." (Exh. 5 at 18). His diagnoses included post-traumatic arthritis of the knees exacerbated by morbid obesity and lumbar back pain "likely related to mechanical back pain and/or some component of degenerative arthritis given his large weight." (Exh. 5 at 19).

On April 22, 2002, Claimant was seen by Dr. Trigg for a mid-thoracic injury that he sustained from picking up his computer bag. (Exh. 5 at 25). The symptoms included severe spasms going up

To his neck and down to his lumbar area. *Id.* The injury was treated conservatively with medication and physical therapy. (Exh. 5 at 25; Exh. 7 at 14-34).

On April 14, 2005, Claimant was referred to an orthopedic specialist for worsening knee pain. (Exh. 5 at 30). He reported that he could not bend the knee or walk on it well at times. *Id.* On June 27, 2005, Dr. P. Nachtigal evaluated Claimant and noted that he was "pretty abusive to his knees when playing football at a young age," had a right ACL tear, and had some lesser degree of symptoms in the left knee. (Exh. 6 at 14). Claimant was diagnosed with severe, tricompartmental degenerative joint disease of both knees. (Exh. 6 at 15). He underwent a series of Hyalgan injections for the right knee. (Exh. 6 at 8, 15).

On June 19, 2006, Dr. Trygg documented severe pain due to tricompartmental arthritis and noted that Dr. Nachtigal did not want to do "any type of surgery because of [Claimant's] weight." (Exh. 5 at 34). Dr. Trygg further documented that Claimant's pain was so bad at times he could not "get around at all." *Id.* On August 4, 2006, Claimant contacted Dr. Trygg for a back injury that had persisted for two to three days. (Exh. 5 at 36). On December 31, 2007, Claimant reported a back injury that was causing muscle spasms. (Exh. 5 at 39).

On June 3, 2008, Dr. Trygg noted that Claimant's knee pain was getting "more and more intense." (Exh. 5 at 82). She specifically indicated that there was pain "in both knees" that worsened with walking as well as weightbearing, but the pain was greater in right knee. *Id.* On July 9, 2008, a cortisone injection was administered into Claimant's right knee. (Exh. 6 at 2-5). On August 13, 2008, Dr. Nachtigal recommended the regular use of anti-inflammatory medication since Claimant was not ready to commit to total knee replacements. (Exh. 6 at 6).

On February 20, 2015, a right knee MRI showed: (1) a large cystic lesion along the medial soft tissues immediately adjacent or involving the medial collateral ligament that most likely represented a complex cystic structure/ganglion related to the MCL injury or parameniscal cyst related to extensive tearing of the medial meniscus; and (2) a chronic ACL tear with severe tricompartmental osteoarthritis that was greatest within the medial tibial femoral compartment. (Exh. 6 at 172-173).

On January 25, 2016, Claimant presented to Dr. Trygg to reestablish care. (Exh. 5 at 214). Dr. Trigg noted that it was getting harder for Claimant to ambulate, and his knees needed replaced. *Id.* His diagnoses included uncontrolled diabetes, morbid obesity, hypertension that was under questionable control, venous insufficiency of the legs, chronic leg edema, and degenerative joint disease of the knees. (Exh. 5 at 218). Claimant was referred to Dr. Richard Seagrave for his knees. (Exh. 5 at 219). On February 17, 2016, Dr. Seagrave evaluated Claimant's knees, noting that he had "pain in his knees for years" and his "knees are really bothering him." (Exh. 6 at 44-45). He could walk without support, but had a significant limp and a "marked varus deformity of the knees." (Exh. 6 at 45). Dr. Seagrave diagnosed severe arthritic changes of the knees that were worse on the right and administered injections into both knees. *Id.* He recommended knee replacements, but indicated that Claimant first needed to lose 70-80 pounds. *Id.* On April 15, 2016, Claimant told Dr. Trygg that his knee pain was keeping him up "a bit at night" and that he still had to lose over 50 pounds before he could undergo knee replacement surgery. (Exh. 5 at 341). On the May 18, 2016, Dr. Seagrave documented knee pain, intermittent swelling, and a worsening of pain with ambulation and/or activity. (Exh. 6 at 64). X-rays showed bone-on-bone arthritis bilaterally and a varus deformity on

the right knee. Id. A right knee injection was administered on May 18, 2016. (Exh. 6 at 64-65). On November 3, 2016, hydrocodone 5-325 was one of Claimant's medications. (Exh. 5 at 410).

On March 15, 2017, a right knee injection was administered, and it was noted that Claimant would "need both his knees totaled soon." (Exh. 6 at 98). On April 7, 2017, Claimant presented to Dr. Trygg for numbness/tingling in his fingertips bilaterally and back pain that had been present since a fishing trip two weeks prior. (Exh. 5 at 528-529). Claimant reported that the numbness/tingling was worse on the left side, the symptoms were more noticeable when he typed, and his grip "was not good." Id. Dr. Trygg documented that Claimant's gait was limited by his weight and severe bilateral knee degeneration. (Exh. 5 at 531). Physical therapy and an EMG/nerve conduction study were ordered. Id. Hydrocodone 5-325 was listed among Claimant's medications. (Exh. 5 at 533). On April 14, 2017, Claimant was seen by the physical therapist for "midline low back pain" that ranged in severity from a 3-7/10. (Exh. 7 at 29-33). The pain was described as "sharp and dull at the low back with tightness across the low back." (Exh. 7 at 31). Although Claimant's ability to twist his low back and sleep at night were restricted prior to the fishing incident, the therapist noted that his prior limitations were to a "much lesser degree." Id. He was provided with a home exercise program and discharged. (Exh. 5 at 35).

On May 22, 2017, an EMG/nerve conduction study showed peripheral neuropathy and bilateral median neuropathy at the wrist. (Exh. 9 at 12). On June 29, 2017, Claimant contacted Dr. Trygg by email to request pain medication for his knee. (Exh. 5 at 571). Claimant stated:

"I am sleeping 3/4 hours a night due to pain in my knees, particularly the right one with the huge cyst on it. I take naproxen twice a day (500 mg) but it has not touched it. I still need to lose weight to get my knee replacement due to insurance. I took some codeine you prescribed last June and got some rest last night but otherwise I felt I was about to collapse with exhaustion. I am open to anything at this point so I will ask your help in dealing with the pain. I have dealt with pain daily for ten years but this is worse like a 7/8 especially at the end of the day. Thanks."

Id. Dr. Trygg prescribed Tylenol 3. Id. Increased anxiety and leg swelling were noted on July 3, 2017. (Exh. 5 at 582). On July 28, 2017, Claimant requested that Dr. Trygg increase his Xanax and prescribe a stronger pain medication for his knees. (Exh. 5 at 663). Hydrocodone 5-325 was prescribed. (Exh. 5 at 664). Claimant again requested pain medication on January 8, 2018, indicating that he would take half a pill to help him sleep. (Exh. 5 at 745). His hydrocodone 5-325 was refilled. (Exh. 5 at 754).

On January 17, 2018, Claimant returned to Dr. Seagrave's office for bilateral knee pain and received injections in both knees. (Exh. 6 at 112). He wanted to have his "knees done," but his weight and other health concerns prohibited surgery. Id. Claimant's hydrocodone was refilled on March 27, 2018. (Exh. 5 at 779).

On April 2, 2018, Claimant saw Dr. Trygg for worsening fatigue. (Exh. 5 at 809). He indicated that his "fatigue is not anything new but it just seems to be getting worse and worse." (Exh. 5 at 809-810). He was averaging four to five hours of sleep at night; he had a hard time falling asleep and his sleep was interrupted by getting up to urinate around four times a night. (Exh. 5 at 810). Claimant indicated that he "sometimes can even fall asleep desk at work [sic]." Id. He quit

taking Xanax at night because it gave him a "hangover effect," but he usually would take a Norco to help him sleep due to "bad knee pain." Id. He also continued to have leg edema. Id. Dr. Trygg diagnosed fatigue secondary to untreated recurrent obstructive sleep apnea that was exacerbated by weight and inactivity. (Exh. 5 at 816). Bilateral knee injections were performed on April 25, 2018. (Exh. 6 at 162).

On May 29, 2018, Claimant sent a message to Dr. Trygg regarding his increasing weight and exhaustion as well as requesting medication refills that included hydrocodone. (Exh. 5 at 889). In his message, Claimant indicated: "My exhaustion is so bad, I feel like I am able to sleep all night and day barring bathroom breaks. I feel like I cannot go on much longer and not trying to be dramatic. [sic] I traveled with my boss and she could tell." Id. On the same day, Dr. Trygg sent a message inquiring about what made Claimant feel like he could not go on. Id. When he responded on June 3, 2018, he indicated his belief that "it is the fatigue." Id. He went on to state that "I feel like I cannot function anymore" and that his boss told him that she would support 50-90 days of short-term disability to "get [him] in a better place physically" but the "timing never seems right." Id. On June 4, 2018, Dr. Trygg sent a message agreeing to try a period of short-term disability if Claimant could make the time. (Exh. 5 at 887). Although Claimant's last message to Dr. Trygg in this exchange occurred on June 3, 2018, he did not mention the work accident or injuries to his back, left hip, and/or left knee. (Exh. 5 at 887-889). In a subsequent message sent on June 3, 2008, Claimant did advise Dr. Trygg that he had been "dumped out of a wheelchair at the airport Friday." (Exh. 5 at 904).

The Work Accident on June 1, 2018

On June 1, 2018, while engaged in employment and performing his work duties with Change Healthcare, Claimant allegedly incurred injuries to his low back, left hip, and left knee. On May 27, 2018, he twisted his right knee while at home. (Exh. H at 60-61). When he left for a business trip the next day, Claimant was walking with a cane and limping due to his right knee condition. (Exh. H at 56-57, 60-62). At the airport, the airline offered to have carts transport Claimant to and from the gates on each leg of his trip. (Exh. H at 57). Instead of a cart, he was met by an attendant with a wheelchair when he landed at the airport in Springfield, Missouri on June 1, 2018. Id.

Claimant agreed to utilize the wheelchair, but the attendant had a difficult time pushing him over the first rubber hump in the jetway. (Exh. H at 57-58). When approaching the second rubber hump in the jetway, the attendant started gathering speed to help maneuver the chair over it. (Exh. H at 58). The chair hit the rubber hump, came to an abrupt halt, and Claimant was ejected onto the jetway floor. Id. He attempted to catch himself with his left hand, causing his body to turn towards his left side before he landed on the floor. Claimant testified that the fall impacted his left hip, left knee, and jarred his back. (Exh. H at 58-59, 121-123). He was assisted up, walked to the chairs outside of the gate, and sat for a while. (Exh. H at 58-59). Claimant's low back began to tighten up and ache from hip to hip. (Exh. H at 59, 65). He walked to the front of the airport, stopping every 30-40 yards to sit. Id. Claimant walked to his truck, drove home, and went to bed. Id.

Medical Treatment

On June 2, 2018, Claimant presented at Urgent Care for left hip and low back pain. (Exh. 8 at 16-17). He reportedly tried to catch himself with his left hand, but was unable to do so and landed on his left hip before he "planted his face" to the ground. Id. He denied hitting his back. Id. On exam,

Claimant was noted to be 6 foot 3 inches tall and weigh 447 pounds. (Exh. 8 at 19). He was very point tender over the lateral aspect of the left hip and had pain with internal/external hip rotation. *Id.* There was mild back spasms and tenderness in the midline and lower lumbosacral regions. *Id.* X-rays of the lumbar spine and left hip showed mild arthritic changes. *Id.* Claimant was diagnosed with a lumbar strain and left hip contusion. (Exh. 8 at 20). He was prescribed tizanidine and given three days of hydrocodone to use until his regular script was refilled. *Id.* He was to walk as able with his cane. *Id.*

On June 3, 2008, Claimant sent a message to Dr. Trygg advising that he had been "dumped out of a wheelchair at the airport Friday" onto his "hip and face" and thought he might have broken his left hip and lower back. (Exh. 5 at 904). He reported that he went to urgent care and would call his endocrinologist the next day. *Id.*

On July 5, 2018, Dr. Trygg noted pain in the lower aspect of Claimant's lumbar spine that went across his back. (Exh. 5 at 921). The pain was worse with walking and standing. *Id.* Claimant indicated that he had been treating this new pain with Naprosyn, ibuprofen, and "a couple of doses" of hydrocodone "here and there." *Id.* Claimant's exam was complicated by his weight and pain, including knee pain when standing. (Exh. 5 at 924). Dr. Trygg was unable to elicit focal pain to palpation of the lumbar spine, SI joints, or the greater trochanters. *Id.* There were no spasms to palpation in the lower paraspinous muscles. *Id.* Claimant was diagnosed with acute, low back pain from a severe lumbar sprain. (Exh. 5 at 924-925). Dr. Trygg felt that Claimant's low back pain was exacerbated by his degenerative arthritis and body habitus. *Id.* Physical therapy was ordered, and Claimant was prescribed Norco, Skelaxin, and a Flector patch. (Exh. 5 at 925). He was also instructed to continue taking an anti-inflammatory medication. *Id.* The Flector patch was discontinued by August 10, 2018. (Exh. 5 at 965). Between July 20, 2018 and August 31, 2018, Claimant attended 10 therapy sessions and canceled his remaining appointments; he underwent both land-based and aqua therapy. (Exh. 7 at 50-339). At his last therapy session, Claimant indicated that his left hip was approximately 70% improved since starting therapy and his low back was about 45% improved. (Exh. 7 at 338).

On September 24, 2018, Claimant sent a message to Dr. Trygg, stating that he had undergone therapy and, until the last few days, had been "doing ok." (Exh. 5 at 1010). He then began experiencing a worsening of his back pain. *Id.* He inquired as to whether he could get a disabled placard due to his back and bilateral knee conditions. *Id.* Claimant also inquired about whether he could travel for work. *Id.* Dr. Trygg indicated that she would send Claimant a form for the placard. *Id.* With regard to traveling for work, she indicated that whatever Claimant wanted to try was up to him. *Id.* Claimant's hydrocodone was refilled on September 28, 2018 and November 28, 2018. (Exh. 5 at 1027-1028, 1038).

On January 4, 2019, Claimant saw Dr. Trygg for a multitude of complaints that included back pain and fatigue. (Exh. 5 at 1070). He complained of a lot of very chronic fatigue that seemed to be worsening, but admitted that he had been unable to "follow through with a referral to the sleep clinic due to some issues that were happening at home with his mother." *Id.* Claimant stated that "some of it may be due to depression with his failing health and his mother's worsening medical problems including lung cancer." *Id.* He felt that he could sleep all of the time. *Id.* Claimant's biggest complaints were chronic pain in his back and knees. *Id.* Dr. Trygg noted that Claimant's back seemed "to be worse since he had a bad fall at the airport last year." *Id.* He was using Naprosyn and

18-110427

Two hydrocodone tablets daily. *Id.* The back pain was in the lower lumbar area and no radicular symptoms were reported. *Id.* Dr. Trygg diagnosed back pain due to degenerative arthritis and chronic fatigue that was multifactorial considering Claimant's chronic pain, untreated sleep apnea, and undertreated depression. (Exh. 5 at 1074). She was unsure that Claimant would be a good candidate for the pain clinic due to his body habitus and the difficulty performing any epidural pain injections. *Id.* Hydrocodone 10-325 was prescribed, and Claimant was encouraged to obtain a new sleep study. (Exh. 5 at 1075). On February 6, 2019, Claimant sent Dr. Trygg a refill request for his pain medication. (Exh. 5 at 1138). He indicated that he was "still taking one per night to help with the pain," and he was no longer "comfortable traveling due to [his] back and knees." *Id.*

On April 24, 2019, Claimant was seen by Dr. Trigg for an ulcer on his left great toe and worsening pain in the low back and his knees. (Exh. 5 at 1171-1172). His low back and knees were causing him even more problems with walking. (Exh. 5 at 1172). Dr. Trygg noted that Claimant generally used one Norco a day and had "never been oversedated or had any bad side effects with the Norco." *Id.* Claimant's diagnoses included chronic pain due to "very advanced osteoarthritis of the knees and lumbar degenerative arthritis, under poor control." (Exh. 5 at 1180). His hydrocodone was refilled. *Id.* On May 15, 2019, Claimant sent Dr. Trygg a message about his pain. (Exh. 5 at 1224). While the hydrocodone managed his day pain, Claimant woke up nightly with pain in his knee, back, and hip. *Id.* Dr. Trygg refused Claimant's request for Xanax, as it was incompatible with hydrocodone, and inquired as to the amount of pain medication being used daily. (Exh. 5 at 1223). On May 16, 2019, Claimant stated that he was using two and a half to three, a day, for pain. *Id.* Walking to the back of Walmart "fired up" his back. *Id.* The pain extended down to his right hip, and he had numbness on the outside of his right leg after 15 minutes of standing. *Id.* Percocet and trazodone were prescribed. *Id.*

Dr. Brent Koprivica, a physician practicing in the specialty of occupational medicine, testified by deposition on behalf of Claimant on December 4, 2020. (Exh. 23). Dr. Koprivica performed an independent medical examination of Claimant on August 20, 2019. (Exh. 25). At the time of this examination, Dr. Koprivica took a history from Claimant, reviewed various medical records, and performed a physical examination. *Id.* After reviewing additional medical records, Dr. Koprivica prepared a supplemental report dated October 23, 2019. (Exh. 26)

In light of his examination and evaluation, Dr. Koprivica opined that Claimant suffered from the following conditions: (1) left hip contusion; (2) a low back sprain/strain injury; (3) chronic axial low back pain and left hip pain; (4) morbid obesity; (5) uncontrolled diabetes; (6) end-stage bilateral knee degenerative joint disease; (7) lumbar degenerative arthritis; and (8) severe, bilateral carpal tunnel syndrome. (Exh. 23 at 30-31, 34-35, 52, 54; Exh. 25 at 16-21). Dr. Koprivica concluded that the work accident resulted in a hip contusion, a back strain/sprain, and chronic pain in his low back and left hip. (Exh. 23 at 35, 54-55, 76, 84; Exh. 25 at 16). He testified that Claimant's morbid obesity, in and of itself, contributed to the severity of the injuries incurred as a result of the work accident. (Exh. 23 at 91). He believed that Claimant attained maximum medical improvement for the work injuries on August 31, 2018. (Exh. 23 at 38; Exh. 25 at 16).

13

TI06880184

Timothy McCann v. Change Healthcare

18-110427

Dr. Koprivica found that Claimant had a 25% permanent partial disability of the body-as-a-whole from his back and hip condition; a 35% permanent partial disability of each wrist from the bilateral carpal tunnel syndrome; a 25% permanent partial disability of the body-as-a-whole from his morbid obesity; a 15% permanent partial disability of the body-as-a-whole from diabetes; and a 35% permanent partial disability of each knee for the end-stage degenerative joint disease. (Exh. 23 at 36; Exh. 25 at 18-21). He concluded that the severity of Claimant's disability presentation, in terms of physical limitations, was unusual in response to the nature of the objective physical impairment involved. (Exh. 25 at 16). It was out of portion from what would be expected, and Dr. Koprivica questioned whether there was a psychological contribution to the overwhelming disability presentation. (Exh. 23 at 82).

In discussing Claimant's low back condition, Dr. Koprivica testified that the pre-existing morbid obesity biomechanically loaded the low back and aggravated the pre-existing lumbar degenerative arthritis. (Exh. 23 at 29-30, 58). It impacted Claimant's ability to stand and walk. (Exh. 23 at 42-44, 82-84). According to Dr. Koprivica, the morbid obesity was a hindrance and/or obstacle to Claimant's employment prior to the work accident. (Exh. 23 at 86-87). After the work accident, Claimant's lumbar degenerative arthritis and morbid obesity exacerbated the pain from the lumbar strain. (Exh. 23 at 52, 54). Dr. Koprivica concluded that the interaction between the pre-existing morbid obesity and Claimant's low back condition was "very significant." (Exh. 23 at 29). For example, the morbid obesity impacted Claimant's lumbar flexion, hip flexion, and his ability to stand, walk, and squat. (Exh. 23 at 29-30, 42). Dr. Koprivica testified that there was a major component of Claimant's back and bilateral knee conditions that were degenerative and, by nature, degenerative conditions progress over time and were made worse by his morbid obesity. (Exh. 23 at 83-84). He concluded that Claimant's morbid obesity was a contributing factor to development of the work injuries, as the structures of the low back and hip could not absorb the force caused by his extreme mass. (Exh. 23 at 91).

Dr. Koprivica determined that Claimant required permanent restrictions including: (1) limiting repetitive hand use activities such as pinching and grasping; (2) avoiding repetitive wrist flexion/extension or repetitive ulnar deviation of the wrist; (3) avoiding exposure of the upper extremities to vibration; (4) avoiding frequent or constant pushing, pulling, twisting, and bending at the waist; (5) avoiding sustained or awkward postures of the lumbar spine; (6) avoiding exposure to whole body vibration or jarring like what occurs with operating heavy equipment or commercial over-the-road driving; (7) limiting squatting, kneeling, crawling, and climbing; (8) alternating sitting, standing, and walking as needed; (9) restricting occasional lifting or carrying to less than one third of an eight hour day; and (10) having the ability to take bathroom breaks as needed. (Exh. 25 at 22-24). Dr. Koprivica indicated that the restrictions addressing standing, walking, squatting, kneeling, crawling, and climbing were due to both Claimant's low back and bilateral knee conditions. (Exh. 25 at 22-23). He admitted that Claimant's pre-existing bilateral knee degeneration and his morbid obesity impaired his ability to perform activities such as kneeling, crawling, climbing, bending, and squatting prior to the work accident. (Exh. 23 at 69-70). He further conceded that, prior to his evaluation, Claimant did not have any work restrictions from a medical doctor. (Exh. 23 at 70, 80).

Claimant reported subjective limitations involving an inability to sit for more than two hours, stand for over 15 minutes, walk for more than five minutes, and a need to lie down unpredictably throughout the day. (Exh. 23 at 1; Exh. 25 at 11, 23). Dr. Koprivica testified that he would not mandate lying down throughout the day based on what "objectively is wrong" with Claimant. (Exh.

23 at 38). He did not think that lying down was going to protect Claimant from further disability. Id. Nevertheless, Dr. Koprivica stated that Claimant's disability was severe enough that it warranted lying down for the purposes of pain relief. Id. He acknowledged that Claimant's need to lie down throughout the day was due to pain and sleep disruption. (Exh. 23 at 36). He further recognized that knee pain interrupted Claimant's sleep and contributed to the need to lie down throughout the day. (Exh. 23 at 36-37). Dr. Koprivica also determined that Claimant's morbid obesity contributed to his need to lie down throughout the day. (Exh. 23 at 42).

Dr. Koprivica recognized that Claimant's bilateral knee end-stage degenerative joint disease contributed to his functional limitations, impaired his ability to get out of a chair, and was a major contributor to his inability to stand, walk, and squat. (Exh. 23 at 30-31, 57-58, 63, 65, 73). He agreed that knee pain can result in a limp/altered gait, and morbid obesity impacted both knee pain and Claimant's ability to stand. (Exh. 23 at 57-58, 65). In addition, an altered gait could cause hip and back pain. (Exh. 23 at 58). Claimant's bilateral knee problems and his morbid obesity had an effect on his low back pain. (Exh. 23 at 68).

Further, Claimant's diabetes and peripheral neuropathy influenced his ability to stand, walk, and impacted the severity of his strength deficits. (Exh. 23 at 30). Dr. Koprivica explained that diabetes caused fatigue, extreme thirst, frequent urination, and extreme hunger. (Exh. 23 at 33-34). He testified that Claimant had uncontrolled diabetes that led to issues with fatigue and the need for frequent, unpredictable bathroom breaks. (Exh. 23 at 34-35). Getting up and down could affect both back and hip pain. (Exh. 23 at 72).

Dr. Koprivica could not identify, to a reasonable degree of medical certainty, the amount of Claimant's back and/or left hip sequelae that was attributable to just the work injury. (Exh. 23 at 63-64). When asked if he could determine the extent of Claimant's functional limitations that were due to the work injury alone, Dr. Koprivica indicated that Claimant's presentation was very complex and incorporated all contributors. (Exh. 23 at 64-65). He was unable to determine the amount of Claimant's lumbar range of motion deficits that were solely from the work injury, testifying that the limitations were from both his work injury and his comorbidities. (Exh. 23 at 73).

Dr. Koprivica concluded that Claimant was permanently and totally disabled. (Exh. 25; Exh. 23 at 90). While he opined that the injuries from the work accident alone could potentially result in a permanent total disability, Dr. Koprivica testified that he did not think that was probable or "really is the case." (Exh. 23 at 37, 75). He specifically testified that it was not his opinion that it was probable that the work injuries alone resulted in Claimant's permanent total disability. (Exh. 23 at 75). Instead, he determined that Claimant's other disabilities contributed to his current global disability. (Exh. 23 at 36). He testified that:

I think there is contribution from other disabilities, but the fact is that his back hurts him so bad that he is laying down unpredictably. That's fully disabling. Now, when I look at that, why is it that he is laying down? Well, he's morbidly obese, and that predated this injury, and that makes his back pain that much worse, and that's part of it. And when you add injury to the back from this event that he is now doing [sic] that the morbid obesity is part of it and both of his knees and the severity of that pain with standing and walking and the severity of that pain that he has with having knee pain at night and not being able to sleep, I think that is how I would interpret why he is laying down. But the possibility

exists that, you know, just with his low back alone, if you just say, hey, look at how bad this low back pain is that followed this injury? Would he be laying down unpredictably? If possible [sic]. I just don't know that I can say that that [sic] is probable even though time wise, that is what has happened.

(Exh. 23 at 37-38). Dr. Koprivica concluded that Claimant's disability in the low back was directly impacted by his morbid obesity, and it significantly aggravated and accelerated his back pain and the structural problems in his back. (Exh. 23 at 29, 39-40, 58-59, Exh. 25 at 19). He opined that Claimant's morbid obesity in combination with the back injury would render him permanently and totally disabled. (Exh. 23 at 41; Exh. 25 at 19-20).

Moreover, Dr. Koprivica testified that Claimant's end-stage degenerative joint disease of the knees was severe enough that it could accelerate his back disability if he were on his feet two to three hours throughout the day. (Exh. 23 at 39-40, 61-62). Dr. Koprivica further concluded that Claimant's diabetes, bilateral carpal tunnel syndrome, and bilateral knee conditions had a synergistic effect on his condition and ability to function. (Exh. 23 at 62; Exh. 25 at 20-21). Claimant's diabetes, bilateral knee, and bilateral hand conditions were part of his global disability presentation and contributed to his overwhelming severity. (Exh. 23 at 63). Dr. Koprivica felt that Claimant would be permanently and totally disabled if you consider his work injuries, morbid obesity, diabetes, end-stage osteoarthritis of the knees, and bilateral carpal tunnel syndrome. (Exh. 25 at 21).

Ted Lennard, M.D., a physician practicing in the specialty of physical medicine and rehabilitation, testified by deposition on behalf of Employer/Insurer on January 15, 2021. (Exh. B). Dr. Lennard performed an independent medical examination of Claimant on September 3, 2020. (Exh. A). At the time of this examination, Dr. Lennard took a history from Claimant, reviewed various medical records, and performed a physical examination. Id. Claimant complained of low back pain that radiated to the right hip, numbness in the right outer thigh that occurred mostly while standing, constant left knee pain, left knee locking/popping/giving way, numbness/tingling in his hands and fingers, trigger fingers, and anxiety. (Exh. A at 2-3; Exh. B at 11-12). He was taking Percocet 10-325 up to two times a day and 500 milligrams of naproxen twice a day. Id. Claimant's reported functional capabilities included standing for 15 minutes, sitting for two hours with repositioning, sitting for 20 minutes without repositioning, and lifting up to 10 pounds. (Exh. A at 3). He had difficulty standing from a seated position, bending, and twisting. Id. Prior to the work accident, Claimant reportedly could sit for 2-3 hours, stand for 2-3 hours, lift 180 pounds, bend without difficulty, twist, stand from a seated position with no difficulty, and climb five flights of stairs. (Exh. A at 2-3; Exh. B at 42).

In light of his examination and evaluation of, Dr. Lennard opined that Claimant suffered from the following conditions: (1) a lumbar strain; (2) a left hip strain; (3) underlying lumbar degenerative joint disease; (4) morbid obesity; (5) chronic bilateral knee pain; (6) severe degenerative joint disease of the knees; (7) diabetes; (8) polyneuropathy; and (9) bilateral carpal tunnel syndrome. (Exh. A at 11; Exh. B at 22). He concluded that the work accident was the prevailing factor of the lumbar and left hip strains. (Exh. A at 12; Exh. B at 25). Dr. Lennard did not believe the work accident was the prevailing factor of Claimant's left knee condition. (Exh. A at 12; Exh. B at 25-26). He cited Claimant's pre-existing left knee pathology, the treatment for said pathology prior to the work

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accident, and the pre-existing recommendation for a left knee total knee replacement. (Exh. A at 12).

He further noted that Claimant indicated that his left knee problems did not start until at least two weeks after the work accident. *Id.*

Dr. Lennard determined that Claimant reached maximum medical improvement for the work accident as of August 31, 2018. (Exh. B at 28). He did not believe that any additional treatment would be needed for the work related lumbar and hip strains. (Exh. A at 12; Exh. B at 28). He acknowledged that Claimant's lumbar and hip strains did not prevent him from working for eight months following the accident on June 1, 2018, and concluded no permanent restrictions were needed for the strains. (Exh. A at 12; Exh. B at 29-30, 48). Dr. Lennard felt that Claimant required the following restrictions as a result of his obesity, diabetes, and bilateral knee conditions: (1) no lifting, pushing, pulling, or carrying over 10 pounds; (2) no overhead activities; (3) no repetitive bilateral hand use; and (4) seated activities only with occasional standing/walking for positional changes. (Exh. A at 12). Dr. Lennard testified that the 10-pound weight restriction was primarily due to Claimant's bilateral knee issues. (Exh. B at 33).

Concerning Claimant's permanent partial disability, Dr. Lennard found that he had a 10% permanent partial disability of the body-as-a-whole for the lumbar spine and left hip; a 30% permanent partial disability of the left knee; a 35% permanent partial disability of the right knee; a 25% permanent partial disability of the body-as-a-whole for his morbid obesity; and a 20% permanent partial disability of the body-as-a-whole for his diabetes and peripheral neuropathy. (Exh. A at 12; Exh. B at 27). Dr. Lennard advised that his rating for the back/hip encompassed both the work injuries as well as the effect of Claimant's pre-existing conditions on the back/hip. (Exh. B at 28). He determined that only 5% of the permanent partial disability for the back/hip was attributable to the work accident. (Exh. B at 36). Further, he determined that Claimant's work injuries were enhanced by his pre-existing morbid obesity, diabetes, and degenerative joint disease of the knees. (Exh. A at 12). He testified that these conditions have, and continue to, directly and significantly aggravate or accelerate the work injury to the back. (Exh. A at 12; Exh. B at 52-53).

While Dr. Lennard determined that the left hip injury resolved, he felt that the lumbar strain had continued to some extent and was aggravated by Claimant's pre-existing conditions. (Exh. B at 35 38-40, 47-48, 56-57). In addition to Claimant's lumbar degenerative changes, Dr. Lennard felt that there could be some residual inflammation. *Id.* He believed the lumbar strain had not completely resolved due to a number of factors, including a continued aggravation of Claimant's back condition from his morbid obesity and the hindrance that diabetes poses to the healing process. (Exh. B at 47-48, 56-57). He acknowledged that the lumbar strain could still resolve. (Exh. B at 35-36).

Dr. Lennard testified that morbid obesity is one of the primary causes of spine degeneration and it can cause an acceleration of degeneration. (Exh. B at 22-23, 38-39). In addition to aggravating Claimant's lumbar degenerative pathology, his morbid obesity would aggravate any strained or inflamed tissue in the back. (Exh. B at 38-39). Morbid obesity limits an individual's abilities during recovery/rehabilitation, and the added weight can prevent functional and/or subjective improvement. (Exh. B at 23). Dr. Lennard indicated that Claimant's morbid obesity would also have an impact on his hip and bilateral knee pain. *Id.* He explained that, biomechanically, the morbid obesity placed greater forces on the hip, knee, and ankles. *Id.* It can create a primary problem or aggravate a secondary problem. *Id.* Dr. Lennard concluded that Claimant's morbid obesity was a

17

Contributing factor to the development of a back strain on June 1, 2018, as a large body habitus can cause the tissue damage from a traumatic event to be more significant. (Exh. B at 48).

Dr. Lennard testified that knee pain can cause an altered gait and a limp. (Exh. B at 24). Biomechanically, an altered gait/limp impacts the smooth, arrhythmic motion of the lumbar spine with all activities and can aggravate it. *Id.* Claimant's limp would aggravate his lumbar strain and lumbar degeneration. (Exh. B at 39).

Dr. Lennard was unable to separate the amount of back/hip pain attributable to the work accident from the symptoms stemming from his pre-existing conditions. (Exh. B at 24, 29-30, 39-40). He testified that it would be very difficult to separate the impact of the degenerative changes, morbid obesity, and abnormal gait. (Exh. B at 28, 39-40).

Dr. Lennard concluded that Claimant was permanently and totally disabled. (Exh. A at 12; Exh. B at 30, 33). He explained that Claimant's pre-existing conditions have progressively worsened with time, and it would be very difficult for Claimant to maintain full time gainful employment based on his morbid obesity, severe bilateral knee arthritis, diabetes, and peripheral neuropathy. (Exh. B at 29-33, 40-41, 52). He believed that Claimant would be permanently and totally disabled even if the lumbar degeneration and/or lumbar strain did not exist. (Exh. B at 52).

Shari Hood, FNP-C performed an independent medical examination of Claimant for the Social Security Administration on September 3, 2020. (Exh. 12 at 76). At the time of this examination, Ms. Hood took a history from Claimant, reviewed various medical records, and performed a physical examination. (Exh. 12). In light of her examination and evaluation, Ms. Hood opined that Claimant suffered from the following conditions: (1) primary osteoarthritis of both knees; (2) essential hypertension; (3) uncontrolled diabetes Type II with neuropathy; (4) diabetes Type II with hyperglycemia and long-term insulin use; (5) hypercholesterolemia; (6) morbid obesity; (7) nonrheumatic aortic valve insufficiency; (8) lumbar osteoarthritis; (9) venous insufficiency in the legs; (10) GERD; (11) hyperopia of both eyes with regular stigmatism and presbyopia; (12) dry eye bilaterally; and (13) senile cataracts bilaterally. (Exh. 12 at 81).

Ms. Hood observed that Claimant ambulated with a cane with mild difficulty and became short of breath with minor exertion. (Exh. 12 at 81). He reported exertional shortness of breath after walking 100 feet, climbing 5 or 6 steps, and vacuuming. *Id.* He experienced orthopnea and paroxysmal nighttime shortness of breath. *Id.* Range of motion deficits were noted for his shoulders, hips, cervical spine, left wrist, lumbar spine, and legs. *Id.* His bilateral grip strength was decreased, and he had varying degrees of difficulty with fine and gross manipulative movements of his hand and fingers. *Id.* Bilateral lower extremity edema and chest pain, at rest and with exertion, were documented. Claimant reported that he left his home often and frequently drove. *Id.* Ms. Hood determined that Claimant could sustain job-related duties of sitting, hearing, and speaking without difficulty. *Id.* He would be unable to sustain job-related duties involving standing, walking, lifting, carrying, handling objects, and/or traveling due to morbid obesity, chronic lower back pain, and decreased manual dexterity. *Id.*

On or around March 11, 2020, Dr. James Weiss completed a disability determination of Claimant for the Social Security Administration. (Exh. 12 at 14-27). He assessed the following conditions: (1) anxiety; (2) insomnia due to anxiety; (3) obesity (4) diabetes Type II with neuropathy; (3) osteoarthritis; (4) aortic stenosis; (5) hypertension; (6) venous insufficiency; (7) carpal tunnel syndrome; and (8) degenerative disc disease of the back. (Exh. 12 at 18). Dr. Weiss noted that Claimant limped and ambulated with a cane. Id. He had reduced range of motion in his hips, lumbar spine, and cervical spine. Id. There was a large cyst on Claimant's right knee, he had reduced grip strength, and there were mild/moderate difficulties with fine finger manipulation. Id. Dr. Weiss concluded that Claimant's impairments "could cause some functional limitations, however he can perform and persist with a sedentary level of activity with frequent fine finger manipulations." Id.

Dr. Weiss concluded that Claimant required restrictions of: (1) no frequent or occasional lifting and/or carry over 10 pounds; (2) no standing or walking for more than 2 hours; (3) no sitting for over 6 hours during an 8 -hour workday; (4) limiting climbing stairs and ramps to an occasional basis; (5) no climbing ladders, ropes, or scaffolds; (6) limiting balancing, stooping, kneeling, crouching, and/or crawling to an occasional basis; (7) no exposure to hazards; and (8) no concentrated exposure to vibration, extreme heat, or fumes/gases. (Exh. 12 at 20-22).

Phillip Eldred, a rehabilitation counselor, testified live at hearing on behalf of Claimant on July 20, 2021. Mr. Eldred performed a vocational evaluation of Claimant on September 9, 2020. (Exh. 27).

At the time of this vocational evaluation, Mr. Eldred took a history from Claimant, reviewed various medical records, performed a vocational interview and administered several vocational assessments and tests, including the following: Back Function Questionnaire, Functional Capacity Checklist, and Purdue Pegboard Test.

In answering the Back Function Questionnaire, Claimant indicated that he could sit for less than 1 hour, stand less than 30 minutes, and walk less than 10 minutes. (Exh. 27 at 13-14). He reported severe pain with squatting, stair climbing, and everyday housework/chores. (Exh. 27 at 14). He had moderate pain with getting up/down from a chair, lifting 10-50 pounds, twisting/turning, desk work, and overhead activities. Id. Claimant did not believe he was able to work. Id. On the Functional Capacity Checklist, Claimant identified 47 activities that he could not do or could only do with great pain, 25 activities that were very difficult, 33 activities that could be done with some pain, 27 activities that were a little difficult, and 18 activities that were unchanged by the work accident. Id. Claimant also marked 3 of the 22 vocational relevant physical activities as severely impaired, 6 as moderately-severely impaired, 4 as moderately impaired, and 7 as mildly impaired. Id. The Purdue Pegboard test measures assembly and fingertip dexterity. Claimant tested in the less than one percentile and complained of bilateral hand numbness during the exam. (Exch. 27at 23-24). Mr. Elder determined that Claimant's test scores were low. Id.

Mr. Eldred opined that Claimant was functioning at a less than sedentary level and, therefore, did not have any transferrable skills. (Exh. 27 at 24-25). He concluded that Claimant was restricted in his ability to stand, walk, sit, lift, carry, push, pull, climb, balance, stoop, kneel, crouch, and crawl. (Exh. 27 at 25). He also had difficulty with handling and/or fingering items with both hands. *Id.* Mr. Eldred opined that Claimant was restricted in his ability to work in proximity to vibration, mechanical parts, radiation, toxic/caustic chemicals, hazards that pose physical harm, and environments where there is a possibility of electric shock. *Id.* He further found that Claimant was limited in his ability to work in extreme heat, high exposed places, and with explosives. *Id.*

Mr. Eldred opined that Claimant could not return to his previous job, had no transferrable skills, had no training potential, and could not perform unskilled work. (Exh. 27 at 25). Considering Claimant's pain, restrictions, age, and use of narcotic medication, Mr. Eldred did not believe that an employer in the normal course of business would consider hiring Claimant. (Exh. 27 at 26). Mr. Eldred was of the opinion that Claimant would not be able to find a sedentary job that permitted him to lie down throughout the day. He acknowledged that Dr. Koprivica's restrictions did not include lying down throughout the day.

In light of this vocational examination and evaluation, Mr. Eldred opined that Claimant is presently governed by permanent restrictions and limitations that render him permanently unemployable in the open and competitive labor market. Under Dr. Koprivica's restrictions, Mr. Eldred testified that Claimant would not even be permitted to perform sedentary work. He felt that sedentary work would be possible under Dr. Lennard's restrictions for the work accident. However, Mr. Eldred testified that Claimant would not be able to perform sedentary work if Dr. Lennard's restrictions for the pre-existing conditions were considered.

Mr. Eldred conceded that Claimant continued working between June 1, 2018 and February 1, 2019. He further conceded that Claimant did not have any work restrictions from a medical professional until he saw Dr. Koprivica on August 20, 2019. Mr. Eldred admitted, after the work accident, Claimant continued to work 55-60 hours a week, performed his job duties, and maintained his client relationships. Mr. Eldred testified that Claimant collected unemployment after February 1, 2019; in doing so, Claimant represented that he was ready, able, and willing to work.

Mr. Eldred testified that Claimant was permanently and totally disabled solely as a result of the work accident on June 1, 2018. (Exh. 27 at 29). While Mr. Eldred acknowledged that Claimant had pre-existing impairments, he concluded the "last injury alone is the prevailing injury that is attributable to the restrictions that cause [Claimant] to be unemployable." *Id.* He opined that Claimant's pre-existing conditions "did not constitute a hindrance or obstacle to employment since he was able to continue working." *Id.* However, Mr. Eldred indicated that, if Claimant was not adjudicated to be permanently and totally disabled from the last injury alone, then his inability to work would be due to the work injuries in combination with his pre-existing conditions. *Id.* He believed that Claimant's back and right knee conditions would render him permanently and totally disabled. Similarly, he felt Claimant's obesity, back, and right knee conditions would render him permanently and totally disabled.

Michelle Sprecker, a rehabilitation counselor, testified by deposition on behalf of the Employer/Insurer on February 24, 2021. Ms. Sprecker performed a vocational evaluation of Claimant on November 24, 2020. (Exh. C). She completed the evaluation with a subsequent phone call with Claimant on November 30, 2020. (Exh. C at 2). Upon reviewing additional materials, Ms. Sprecker issued a supplemental report on February 8, 2021. (Exh. D).

At the time of this vocational evaluation, Ms. Sprecker took a history from Claimant, reviewed various medical records, performed a vocational interview, and administered vocational testing, including the following: Wide Range Achievement Test - Revision 5 and the Wonderlic Personnel Test. Ms. Sprecker determined that Claimant scored above the high school level in word reading, spelling, math computation, and sentence comprehension. (Exh. C at 30; Exh. E at 22). His word reading score was in the $98^{\text {th }} percentile, his sentence comprehension was in the 66^{\text {th }} percentile, and both his spelling and math computation scores were in the 68^{\text {th }}$ percentile. Id. The Wonderlic Personnel Test provides a highly accurate estimate of an adult intelligence and is a useful measure of educational/training potential. There is a short form test of general cognitive ability. Claimant scored a 29 with a 5-point age adjustment. (Exh. C at 31; Exh. E at 23). Individuals that score a 28 or above on the test are capable of upper-level management. (Exh. C at 31).

Claimant discussed his subjective limitations with Ms. Sprecker. (Exh. C at 7-8). His reported limitations included: (1) an inability to stand for over seven to eight minutes; (2) right lower extremity numbess after standing for 15 minutes; (3) an inability to sit for two hours in his lift chair; (4) an inability to walk more than 100-150 feet; (4) difficulty keeping his balance on uneven surfaces; and (5) the need to use a cane due to his left knee giving out. (Exh. C at 8).

Based on his vocational history, Ms. Sprecker testified that Claimant had supervisory skills. (Exh. E at 53). Claimant's training, skills, experience, and ability to communicate would be sought after in our day and age. (Exh. E at 58-59). Ms. Sprecker indicated that there were more options available today for remote work and alternatives to traveling. (Exh. E at 60). She agreed that Claimant was highly skilled, and, with higher skilled positions, employers tend to be more flexible regarding when, where, and how the work is performed. (Exh. E at 61).

Ms. Sprecker testified that being morbidly obese and utilizing a cane would not necessarily be a barrier to employment if the position sought was in a sedentary level. (Exh. E at 40, 50-51). She indicated Claimant's job performance was not impaired by his use of a cane at work prior to June 1, 2018. (Exh. E at 65-66). Ms. Sprecker explained that employers will look at the whole picture, including Claimant's education, skill set, steady work history, personality, and other such factors. (Exh. E at 40, 50-51). She further explained that it was easier for older and/or disabled individuals to secure a professional job, especially if they possess a resume like Claimant. (Exh. E at 65, 68). Similarly, gaps in employment are less important when an articulate individual with a resume like Claimant's is seeking a professional job. (Exh. E at 70-71). Claimant presented as professional and was charismatic, which would further aid him in obtaining employment. (Exh. E at 68-69).

Claimant told Ms. Sprecker that he applied with, or sent resumes to, approximately 30 employers for sales related positions after his employment with NetSmart ended. (Exh. C at 31). He expressed mixed feelings about returning to work. (Exh. C at 31; Exh. E at 21). He feared that he

would not be able to physically tolerate doing a lot. Id. He felt he would need to find employment that allowed him to alternate sitting and standing plus take naps as needed. Id. When asked about the amount of money for which he would consider returning to work, Claimant indicated he would not consider employment that paid less than 75,000.00 to 80,000.00 annually. (Exh. C at 32; Exh. E at 21, 60). It was Ms. Sprecker's understanding that he would not consider a job that paid even $60,000 a year. (Exh. E at 72). Additionally, he was only willing to consider daytime employment in Springfield, Missouri or a job that allowed him to work from home during the day. Id. Ms. Sprecker testified that such limitations would narrow Claimant's choices considerably and make it harder to secure employment. (Exh. E at 71). She agreed that it would be easier for Claimant to find a job without the income limitation and the requirement that he be able to work from home. (Exh. E at 72).

In light of this vocational examination and evaluation, Ms. Sprecker concluded that no medical professional had provided restrictions solely based on the work injuries alone and, consequently, the work accident did not cause Claimant to be unemployable in the open labor market. (Exh. E at 32-33). She noted that Dr. Lennard did not find any restrictions were warranted for the work injuries; considering only Dr. Lennard's findings regarding the work injuries, Ms. Sprecker testified that Claimant would be employable in the open labor market and able to return to any of his prior positions/occupations. (Exh. C at 32; Exh. D at 18; Exh. E at 24, 27). She was able to identify three positions in Springfield, Missouri that had employment opportunities as an account manager, a clinical specialist, and a health care medical software representative. (Exh. C at 33; Exh. E at 27-30). Ms. Sprecker's research determined that an experienced sales representative in the Springfield Metropolitan area earned around $83,306.00 annually. Id. When Dr. Lennard's restrictions for the knees, diabetes, and morbid obesity were considered, Ms. Sprecker concluded that Claimant would not be unemployable in the open labor market. (Exh. C at 32; Exh. D at 18; Exh. E at 25, 27, 43, 70). Likewise, Ms. Sprecker found that Claimant would be unemployable in the open labor market under the restrictions of Dr. Koprivica due to his work injuries in combination with his pre-existing morbid obesity. (Exh. C at 32; Exh. D at 18; Exh. E at 25, 43). Ms. Sprecker found Claimant to be unemployable in the open labor market under the restrictions noted by Shari Hood, FNP-C and/or Dr. Weiss for all of Claimant's conditions. (Exh. D at 17; Exh. E at 30-32, 45, 56).

The vocational opinions of Ms. Sprecker are supported by the medical opinions, and in particular the medical opinions of Dr. Lennard, Dr. Koprivica, Dr. Weiss, and Shari Hood.

1. Opinions and Testimony of Robert Hosutt

Robert Hosutt, a rehabilitation counselor, testified by deposition on behalf of the Second Injury Fund on April 12, 2021. (Exh. ii). Mr. Hosutt performed a vocational evaluation of Claimant on March 30, 2021. (Exh. ii at 9). At the time of this vocational evaluation, Mr. Hosutt took a history from Claimant, reviewed various medical records, and performed a vocational interview.

In addition to the background information obtained by the other experts in this case, Mr. Hosutt documented that Claimant had completed enough course work at Dale Carnegie to be qualified as an instructor. (Exh. iv at 4). He also participated in Toastmasters International. Id. Claimant was noted to have a lot of computer knowledge and experience with hardware and software systems. (Exh. ii at 19; Exh. iv at 4, 33). Mr. Hosutt further noted that Claimant had experience writing and reviewing manuals, proposals, bids, budgets, and quotes. (Exh. ii at 118; Exh. iv at 8).

After February 1, 2019, Claimant participated in classes addressing Microsoft updates through the Missouri Job Centers. (Exh. ii at 20; Exh. iv at 33).

Mr. Hosutt obtained additional details regarding Claimant's work after June 1, 2018. Claimant reported that he worked 55-60 hours a week without missing any time and he continued to maintain close contact with his clients, assisted with products, provided hardware/software needs, engaged in acute discussions, and demonstrated how to use products. (Exh. ii at 42-44, 99-101, 112, 129-130, 132; Exh. iv at 33). When he worked from home, Claimant adjusted his schedule; instead of working for 10 hours straight, for example, he may have worked from 7 a.m. to 12 p.m., rested a couple hours, and then worked from 2 p.m. to 8 p.m. (Exh. ii at 95-98; Exh. iv at 33). Claimant indicated that he completed all of his work until he was let go on February 1, 2019. (Exh. ii at 42-44, 129; Exh. iv at 33). Mr. Hosutt concluded that, after the work accident, Claimant continued to "perform at a high level in a stressful, challenging, and highly competitive work environment as evidenced by his 2018-year end compensation." (Exh. ii at 112Exh. iv at 41). He found "nothing to suggest [Claimant] was not performing the essential typical executive level duties during this period of time." Id. There was also no evidence that his earning capacity was impacted. (Exh. ii at 153).

In light of this vocational examination and evaluation, Mr. Hosutt opined that Claimant remained competitively employable in the open labor market. (Exh. ii at 49, 52, 133; Exh. iv at 40-42). Mr. Hosutt determined that Dr. Lennard's restrictions were within the sedentary level of physical activity as defined by the Department of Labor. (Exh. iv at 41). He opined that Claimant's professional and executive work background made him highly suited for sedentary occupations in the open labor market. (Exh. ii at 52; Exh. iv at 41). Considering Dr. Koprivica's restrictions, Mr. Hosutt also felt Claimant would be able to perform sedentary work. (Exh. ii at 49; Exh. iv at 41). However, Mr. Hosutt felt Claimant would be unemployable in the open labor market if he were medically required to lie down multiple times throughout the day. (Exh. ii at 49-51, 104-105; Exh. iv at 41).

Mr. Hosutt noted that Claimant had experience in several fields, including the medical industry, sales, management, and technology settings. (Exh. ii at 37, 65-66, 111). Mr. Hosutt testified that jobs are always available for someone with Claimant's knowledge and/or expertise. (Exh. ii at 48). In fact, the pandemic was actually a positive for people like him, as it created more opportunities for remote work that will continue to exist after the pandemic. (Exh. ii at 62-63). Knowledge of medical equipment, hospitals, and other types of medical information have become even more highly sought-after because of the pandemic. Id.

Mr. Hosutt agreed that Claimant was charismatic and would know how to sell himself to potential employers despite his medical problems and/or appearance. (Exh. ii at 110-111, 146-147). He also opined that Claimant would be qualified for an executive position; thus, his obesity, use of a cane, and age would be less significant considerations. (Exh. ii at 89-92, 94, 108-110, 146-147; Exh. iv at 35). Claimant's unemployment since 2019 also would not be as significant a consideration because of his business and technological expertise. (Exh. iv at 35). Claimant's experience and knowledge would allow him to secure a job that allowed him the freedom to set his own schedule, move about, and lie down during the day. (Exh. ii at 105, 144-145). He agreed that Claimant could dictate, talk on the phone, and review materials while lying down. (Exh. ii at 145).

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In evaluating Claimant, Mr. Hosutt considered the current labor market and identified several positions that were remote or in the Springfield area. (Exh. iv at 35-39). Mr. Hosutt expected Claimant's earning capacity with such jobs would be $80,000 annually. (Exh. iv at 42). Given Claimant's education, training, and skills, Mr. Hosutt felt that becoming an online instructor of subjects like leadership and/or public speaking would be good options for him. (Exh. ii at 116). Mr. Hosutt indicated that there could be opportunities for Claimant as an instructor, coach, a personal trainer, a consultant, and/or a motivational speaker. Id. A lot of these types of jobs could be performed remotely. (Exh. ii at 117-118). Mr. Hosutt testified that there could also be remote jobs available where Claimant could write, edit, review, and/or proofread documents such as manuals, transcripts, books, budgets, and/or bids. (Exh. ii at 118).

Mr. Hosutt testified that Claimant was selective about the jobs for which he would apply, and he believed that he needed a low stress work environment. (Exh. ii at 137-138, 140-143; Exh. iv at 34). Claimant also had concerns about working due to his responsibilities to his ailing mother and his grandchildren. (Exh. ii at 144; Exh. iv at 34). While Mr. Hosutt believed that Claimant was highly motivated while working, he acknowledged that Claimant likely lost any motivation/incentive to return to the workforce once he was approved for Social Security disability benefits. (Exh. ii at 67, 148-149; Exh. iv at 35).

Other Witness Testimony

1. Testimony of Yvonne Massey

Yvonne Massey testified on behalf of the Claimant at the hearing on July 20, 2021. She had known Claimant for 20 years. In addition to being a friend of Claimant, Ms. Massey worked with him at both McKesson and Change Healthcare. Between 2000 and 2005, she was the Director of Education and Consulting; in this capacity, she supervised Claimant. She later moved into a sales position, where she performed the same job as Claimant.

Senior Sales Executives typically traveled weekly and were only in the office one or two days a week. In this position, an individual could stand, stretch, or walk around at will. As long as they completed their job duties, senior sales executives had flexibility regarding when and where they worked. Senior sales executives that performed well typically earned 50,000-60,000 above their base salary.

Ms. Massey testified that Claimant was friendly and social before the work accident. She maintained that Claimant walked without an assistive device or any problem prior to June 1, 2018. Ms. Massey testified that, after June 1, 2008, Claimant used a cane to walk; became withdrawn; used a disabled parking placard; had difficulty getting up and down; tended to stay at his desk at the office; worked from home more, stopped traveling; fell asleep at his desk; and had difficulty completing work. Ms. Massey believed that Claimant was not sleeping because of back and knee pain.

On cross-examination, Ms. Massey admitted that Claimant walked slowly prior to June 1, 2018. She further admitted to being unaware that Claimant traveled by car to visit clients after June 1, 2018. Ms. Massey traveled on Monday through Thursday. She was typically only in the office on Fridays and did not have a view of Claimant's desk from her cubicle. Ms. Massey testified that NetSmart released several employees in February of 2019. She was surprised that Claimant was one of these employees, and conceded that she did not know why he was dismissed.

Prior to June 1, 2018, Claimant's right knee caused him difficulties with activities like sleeping, kneeling, using stairs, weightbearing, squatting, rising from a seated position, and walking. (Exh. H at 46-47, 56, 130-132, 135-138). Starting in 2007 or 2008, he experienced right knee pain while working, especially when he had to walk a lot, and the pain caused him to limp. (Exh. H at 4243,62 ). While Claimant's deposition testimony indicated that his right knee condition caused him to have trouble getting in/out of the shower, he denied any such problem during the hearing. (Exh. H at 130). Leading up to the work accident, his right knee had progressed to the point where it was stiffer, more painful, and caused greater functional limitations. (Exh. H at 45, 62). He experienced right knee pain after standing for 30 minutes and began carrying a cane with him. (Exh. H at 47-48, 64). He used the cane approximately 30 % of the time. (Exh. H at 64). Claimant's right knee condition caused him to walk slower; take steps to ensure he had enough time to get to the gateway at the airport; and avoid ascending/descending stairs, squatting, and kneeling. (Exh. H at 45-47, 130-132, 136). Despite the above limitations, Claimant maintained that his right knee did not slow him down. (Exh. H at 42).

Claimant admitted to having a left knee condition before the work accident, but stated that it did not cause him any real problems until approximately 30-60 days after the work accident. (Exh. H at 18-19,44-45,70-72,128-129 ). At that time, his left knee started locking up and giving out, causing him to use a cane constantly. (Exh. H at 18).

Claimant used hydrocodone for over four years before June 1, 2018; he testified that, at most, he used hydrocodone one time per day in the year leading up to the accident. (Exh. H at 16-17). The medication was to help manage his knee pain and sleep. (Exh. H at 137.) Right knee pain limited his sleep to three to four hours a night in 2017. (Exh. H at 137-138). In April of 2018, he was taking Norco every night and still only achieving four and a half to five hours of sleep. (Exh. H at 139).

In the years leading up to the work accident, Claimant began having bilateral hand numbness, left hand tremors, and problems with bilateral trigger fingers. (Exh. H at 50-51). His bilateral hand conditions impacted his ability to type and perform activities like cooking without burning himself. (Exh. H at 53-54, 56). Over the past 20 years, Claimant generally weighed between 380-420 pounds.

According to Claimant, he did not have any difficulties performing his job duties before the work accident. (Exh. H at 42). He testified that he was using a wheelchair on the date of the work accident because of his right knee pain. He believed that the injuries that he sustained in the work accident were due, in part, to his weight.

After the accident, Claimant experienced back spasms, back pain, left knee instability, difficulty concentrating, and right leg numbness with prolonged standing. (Exh. H at 70, 72-73). He explained that the use of a muscle relaxer, Xanax, and Norco caused difficulty concentrating and drowsiness. (Exh. H at 72-73). Once the muscle relaxer was removed from Claimant's medication regimen, his ability to concentrate was 90 % improved. (Exh. H at 73-74). His deposition testimony indicated that he stopped using the muscle relaxer after a few months, but he maintained at the hearing that he took the muscle relaxer for four or five months. (Exh. H at 73).

On the first workday following the accident, Claimant worked from home to put together a major quote with fewer interruptions. (Exh. H at 67-68). He returned to the office the next day. (Exh. H at 67). Claimant testified that back pain made it harder to travel after the accident. (Exh. H at 68). He substituted the majority of his travel with phone calls and remote/online conferences, meetings, and presentations/demonstrations. (Exh. H at 69, 95). He traveled by car to meet with clients in St. Louis, Kansas City, Rolla, Oklahoma City, and Peoria. (Exh. H at 78). During these trips, claimant's boss accompanied him and usually drove. (Exh. H at 147). Claimant testified that he obtained a disabled parking placard because he was traveling by car to see clients. (Exh. H at 146). He worked between 55 and 60 hours a week. (Exh. H at 69-70, 78). Claimant testified that he measured his productivity by his commissions and 2018 was "a very good year." (Exh. H at 95). Claimant explained that the majority of his commissions in 2018 occurred before July because there was a push to complete transactions before the division was sold to NetSmart. In 2018, Claimant's earnings totaled 136,683.00; his annual earnings typically varied from 125,000 to $145,000.

In his deposition, Claimant testified that, although he stopped traveling, it was "absolutely true" that he was able to continue performing his job duties without any real problems after the work accident. (Exh. H at 96). He conducted a lot of phone calls, Zoom presentations, and remote demonstrations. (Exh. H at 69). During the hearing, however, Claimant testified that he had difficulty working after the accident. He maintained that he had trouble concentrating, fell asleep at work daily, and increasingly worked from home. During the last two months of his employment, he worked mostly from home and would lie down once a day. He claimed that he was not as efficient, did not complete assignments, and he had to work around 16 hours a day to accommodate his need to lie down. Claimant conceded that he did not have any physician-imposed work restrictions before August 20, 2019. (Exh. H at 70, 78-79, 145).

Claimant testified that he applied for 90-100 jobs while collecting unemployment. In his hearing testimony, he denied limiting his job prospects as documented by the vocational counselors. He stated that he was willing to consider any job that did not involve travel. Although he had a couple of interviews, he was not offered a job. Claimant received calls from headhunters for years, but they were not interested once he explained his situation. (Exh. H at 90). Claimant further testified that he does not believe himself capable of working due to his age, use of a cane, fatigue, and need to change positions frequently. He did not believe that an employer would willingly invest the time to train him.

Since the work accident, Claimant has continued to have low back pain, right hip pain, right leg pain, and bilateral knee pain. His right knee pain is comparable to what he experienced before the work accident. (Exh. H at 71, 75, 77). He testified that his right knee continues to degenerate a little more every year, making it harder to walk. (Exh. H at 132). While his low back condition has stayed the same, Claimant believed his left knee now gives out more often. (Exh. H at 84-85). It will give way several times a day. (Exh. H at 85). Additionally, he believed that his bilateral hand conditions had slowly progressed. (Exh. H at 76-77). Anxiety and a lack of sleep caused Claimant to have trouble concentrating; he attributed his lack of sleep to pain, but he agreed that some of his fatigue could have been from sleep apnea. (Exh. H at 85-86, 143). He was getting up four to five times a night to use the bathroom between June 1, 2018 and February 1, 2019. More recently, his bathroom trips have reduced to two to three times a night.

At the time of the hearing, Claimant weighed around 430-435 pounds and frequently needed to change positions secondary to pain. (See also, Exh. H at 86). Claimant's deposition testimony indicated that he could only sit for 20-30 minutes without moving before his back-pain increased. (Exh. H at 86-87). At the hearing, he testified that he could sit for two hours. Claimant experienced right leg numbness after standing for 15-20 minutes. (Exh. H at 87-88). His walking was limited to around 100 feet because of right knee pain, hip pain, and back spasms. (Exh. H at 88-89). He now uses a cane 100% of the time. Claimant could not fully twist or bend, and his driving was limited to short distances because of back and right knee pain. (Exh. H at 89-90, 157). Peripheral neuropathy caused numbness in his feet. (Exh. H at 91-92, 142). Claimant would lie down once during the day to change positions and help with his pain. (Exh. H at 151-152). His hydrocodone dosage was increased after the alleged work accident, and he began using it up to three times a day for back, hip, and knee pain. (Exh. H at 18, 141). He was prescribed oxycodone when the hydrocodone stopped being effective. (Exh. H at 140-141). He stated that he needs the medication for his back, right hip, and knees. (Exh. H at 140).

On an average day, Claimant spends most of his time sitting in a recliner that can be adjusted electronically. (Exh. H at 86-88, 158-159). He occasionally will walk around in the backyard. (Exh. H at 87-88). Claimant's mother and his two daughters help him with housekeeping. (Exh. H at 153-155). He mainly eats frozen and/or preprepared food. (Exh. H at 153-154, 159). Claimant cleans his bedroom and bathroom. (Exh. H at 153). He can bathe, groom, and dress himself. Id. He has trouble putting on socks and shoes. Id.

The burden of proving an entitlement to compensation is on the claimant, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

The claimant has the burden of proving all elements of his or her claim, including causation, to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo. App. 2008). Pursuant to Section 287.020.3(1):

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.

R.S.Mo. $\S 287.020 .3(1)$ (2005). Thus, for an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. Clark v. FAG Bearings Corp., 134 S.W.3d 730, 734 (Mo. App. 2004); Lingerfelt v. Elite Logistics, Inc., 255 S.W.3d 1, 6 (Mo. App. 2008).

Claimant has alleged injuries to his back, left hip, and left knee as a result of the work accident on June 1, 2018. (Exh. 17). The totality of the credible evidence established that Claimant sustained work-related injuries to the low back and left hip on June 1, 2018. However, Claimant failed to meet his burden of proving a compensable left knee injury.

When Claimant first presented for treatment on June 2, 2018, he complained of left hip and low back pain. (Exh. 8 at 16-17). There were no complaints regarding the left knee, and Claimant's physical exam did not note any findings regarding the left knee. (Exh. 8 at 19). He was diagnosed with a lumbar strain and left hip contusion. (Exh. 8 at 20). Likewise, Claimant only mentioned his left hip and low back when he sent a message to Dr. Trygg on June 3, 2018. (Exh. 5 at 904).

After the evaluation at Urgent Care, Claimant did not seek further treatment for approximately a month. On July 5, 2018, he saw Dr. Trygg for lumbar pain and was diagnosed with a low back sprain. (Exh. 921-925). Again, an injury involving the left knee was not documented. *Id.* Claimant underwent physical therapy from July 20, 2018 to August 31, 2018; the records lack any documentation of a left knee injury or left knee complaints related to the work accident. (Exh. 7 at 50-339).

Claimant's medical expert, Dr. Koprivica, concluded that the work accident resulted in a left hip contusion and a low back sprain/strain. (Exh. 23 at 35, 54-55, 76, 84; Exh. 25 at 16). Although Dr. Koprivica assessed Claimant with end-stage degenerative joint disease in the left knee, he did not find that the work accident resulted in a left knee injury. (Exh. 23). Similarly, Employer/Insurer's medical expert, Dr. Lennard, found that Claimant sustained low back and left hip strains as a result of the work accident. (Exh. A at 12). Dr. Lennard specifically found that the work accident was not the prevailing factor of Claimant's left knee condition. *Id.* His opinion was based, in part, on Claimant's statement that left knee symptoms did not start until two to three weeks after the accident. (Exh. A at 2, 12).

In his deposition, Claimant indicated that his left knee started locking up and giving out on him 30-60 days after the work accident. (Exh. H at 19, 70-72). He attributed this to the work accident, indicating that he had not really had any problems with his left knee prior to June 1, 2018. The medical records, however, indicate otherwise. While it is undisputed that Claimant's right knee was more problematic than his left knee, the medical records clearly document a long-standing history of left knee pain extending back to 2000. (Exh. 5; Exh. 6). Moreover, the fact that Claimant's left knee began locking/giving out a month or two after the work accident does not mandate the conclusion that the work accident was the prevailing factor of his current left knee condition - especially in light of his pre-existing, end-stage osteoarthritis. Simply put, correlation does not imply causation.

Both medical experts in this case agreed that the work accident was the prevailing factor of Claimant's low back and left hip injuries. Neither expert concluded that Claimant sustained a left knee injury as a result of the accident on June 1, 2018. In fact, no medical professional has evaluated Claimant's left knee since June 1, 2018, or causally related his current condition to the work accident. Additionally, the medical records lacked any documentation that is supportive of a left knee injury on June 1, 2018.

Based on the experts' opinions and the record as a whole, the undersigned judge determines Claimant has proven that the work accident was the prevailing factor of his lumbar strain and hip contusion/strain injuries but there is no causal connection between the work accident and the alleged injury to his left knee.

By statute, a claimant is entitled to receive, at the employer's expense, such "medical, surgical, chiropractic, and hospital treatment, . . . as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." R.S.Mo. § 287.140.1 (2004). In order to hold an employer liable for benefits, however, the evidence must demonstrate that the required future medical care flows from the accident. Landers v. Chrysler Corp., 963 S.W.2d 275, 283 (Mo. App. 1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 226 (Mo. banc 2003). Moreover, "[w]here future medical benefits are to be awarded, the medical care must of necessity flow from the accident, via evidence of a 'medical causal relationship' between the injury from the condition and the compensable injury, before the employer is to be held responsible." Mickey v. City Wide Maintenance, 996 S.W.2d 144, 149 (Mo. App. 1999), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 226 (Mo. banc 2003). An employer is not responsible for compensation for future medical care unless the evidence establishes a reasonable probability that additional medical treatment is needed and that the need arose from the work injury. Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo. App. 2001). The claimant has the burden of proving entitlement for future medical expenses. Id.

A thorough review of the record did not reveal any future treatment recommendations for the work injuries. Claimant has been evaluated by Dr. Trygg, Dr. Koprivica, and Dr. Lennard. None of these physicians determined that future medical care will be needed for Claimant's lumbar strain and/or hip contusion/strain. In fact, Dr. Lennard concluded that Claimant did not require additional treatment to cure and relieve the effects of the work injuries. (Exh. A at 12; Exh. B at 28).

Based on the evidence, Claimant has failed to demonstrate a reasonable probability that future medical care will be needed as a result of the work injuries of June 1, 2018. Therefore, no future medical care is awarded herein.

III. Whether the claimant sustained any permanent disability as a consequence of the alleged accident of June 1, 2018, and, if so, what is the nature and extent of the disability?

Timothy McCann v. Change Healthcare

18-110427

Claimant alleges that he is unemployable in the open labor market and is entitled to permanent total disability benefits. Employer/Insurer denies that Claimant is permanently and totally disabled as a result of the work injury on June 1, 2018. While some of the evidence shows that Claimant is unemployable in the open labor market, it does not necessarily establish an entitlement to permanent total disability benefits from the employer and/or the SIF. Indeed, the record reveals that if Claimant is currently unable to compete in the open labor market this circumstance occurred well after he attained maximum medical improvement for the work-related injuries and was the result of a subsequent deterioration of his pre-existing conditions.

Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. *Sanders v. St. Clair Corp.*, 943 S.W.2d 12, 16 (Mo. App. S.D. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." *Tiller v. 166 Auto Auction*, 941 S.W.2d 863, 865 (Mo. App. S.D. 1997). The burden of establishing permanent total disability lies with the claimant. *Schuster v. State Division of Employment Security*, 972 S.W.2d 377, 381 (Mo. App. 1998).

Section 287.020.7 defines "total disability" as an inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. R.S.Mo. § 287.020.6 (2005). The term "any employment" means "any reasonable or normal employment or occupation." *Crum v. Sachs Electric*, 769 SW 2d 131, 133 (Mo. App. 1989) (quoting *Kowalski v. M-G Metals & Sales, Inc.*, 631 SW 2d 919, 922 (Mo. App. 1982)). If the claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount. *Hughey v. Chrysler Corp.*, 34 S.W.3d 845, 847 (Mo. App. 2000); *Atchison v. Missouri State Treasurer*, 603 S.W.3d 719, 724 (Mo. App. 2020).

The primary determination with respect to the issue of total disability is whether in the ordinary course of business, any employer would reasonably be expected to employ the claimant in his or her present physical condition and reasonably expect her or him to perform the work for which he or she is hired. *Reiner v. Treasurer of the State of Missouri*, 837 S.W.2d 363, 367 (Mo. App. 1992); *Talley v. Runnymede Estates, Ltd.*, 831 S.W.2d 692, 694 (Mo. App. 1992); *Fischer v. Archdiocese of St. Louis*, 793 S.W.2d 195, 199 (Mo. App. 1990). The test for permanent and total disability is whether given the employee's condition, he or she would be able to compete in the open labor market; the test measures the claimant's prospects for obtaining employment. *Reiner*, 837 S.W.2d at 367; *Fischer*, 793 S.W.2d at 199.

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The "trier of fact must make his or her decision upon the whole record, must consider all the evidence and may not arbitrarily disregard any evidence in the record." Barnes v. Ford Motor Co., 708 S.W.2d 198, 200 (Mo. App. 1986). It is the trier of fact that determines the weight and credibility of the evidence. Id., at 200. "The Commission, alone, resolves questions of credibility and weight of the evidence." Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo. App. 1993). Indeed, the Missouri Supreme Court has stated that it "must defer to the commission's findings on issues of fact, the credibility of witnesses, and the weight given to conflicting evidence." Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. 2015). Expert testimony may be required where there are complicated medical issues. Goleman v. MIC Transporters, 844 S.W.2d, 463, 466 (Mo. App. 1993); Griggs 503 S.W.2d at 704. Where the opinions of medical experts are in conflict, the fact-finding body determines which expert to believe and which is most credible. Cheney v. City of Gladstone, 576 S.W.3d 308, 317 (Mo. App. 2019); see also, Hawkins v. Emerson Electric Co., 676 S.W.2d, 872, 877 (Mo. App. 1984). The fact finder may reject all or part of an expert's testimony that it does not consider credible and accept as true the contrary testimony given by the other expert. Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo. App. 1992); Hutchinson v. Tri-State Motors Transit Corp., 721 S.W.2d 158, 163 (Mo. App. 1986).

However, where the facts are within the understanding of lay persons, the claimant's testimony or that of any other lay witness may constitute substantial and competent evidence. This is especially true where such testimony is supported by some medical evidence. Pruteanu v. Electro Core, Inc., 847 S.W.2d 203, 206 (Mo. App. 1993). The trier of fact may even base her findings solely on the testimony of the claimant. Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 198199 (Mo. App. 1990). The testimony of a witness may be disbelieved even if there is no contradictory or impeaching testimony. Hutchison v. Tri-State Motor Transit Co., 721 S.W.2d 158, 161-162 (Mo. App. 1986).

The determination of the degree of disability sustained by an injured claimant is not strictly a medical question. While the nature of the injury and its severity and permanence are medical opinions, the impact that the injury has upon the claimant's ability to work involves factors which are both medical and non-medical. Accordingly, courts have repeatedly held that the extent of percentage of disability sustained by an injured claimant is a finding of fact within the special providence of the Commission. Sellers v. Trans World Airlines, Inc., 776 S.W.2d, 502, 505 (Mo. App. 1989). The fact-finding body is not bound by or restricted to the specific percentages of disability suggested or stated by the medical experts. Id. It may also consider the testimony of the claimant and other lay witnesses and draw reasonable inferences from such testimony. Id. Focalsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975).

In the case at bar, there is no dispute that the work accident caused a lumbar strain and a left hip contusion/strain. Claimant underwent 10 physical therapy sessions and cancelled his remaining appointments. (Exh. 7 at 338). His treatment also included use of a muscle relaxer for a period of time in addition to the hydrocodone that he had previously been taking for his knee condition. (Exh. 5). Both Dr. Koprivica and Dr. Lennard determined that Claimant was at maximum medical improvement for the work injuries on August 31, 2018 (i.e. three months post-injury). (Exh. 23 at 38; Exh. 25 at 16; Exh. B at 28).

Timothy McCann v. Change Healthcare

18-110427

Further, it is undisputed that Claimant continued to work until February 1, 2019, and did not miss any time from his job due to the work injuries. No medical professional restricted Claimant's capacity to work before he attained maximum medical improvement for the work injuries. Indeed, Claimant was given no work restrictions until Dr. Koprivica performed an independent medical exam over a year after the accident.

Dr. Koprivica concluded that Claimant was permanently and totally disabled. (Exh. 25; Exh. 23 at 90). However, he testified that he did not think that it was probable or "really is the case" that the work accident resulted in the permanent total disability. (Exh. 23 at 37, 75). Dr. Koprivica could not identify, to a reasonable degree of medical certainty, the amount of Claimant's back and/or left hip sequelae that was attributable to just the work injuries. (Exh. 23 at 63-64). He also could not determine the extent of Claimant's functional limitations that were due to the work injuries alone, stating that Claimant's presentation was very complex and incorporated all contributors. (Exh. 23 at 64-65). In short, he specifically testified that it was not his opinion that it was probable that the work injuries alone resulted in Claimant's permanent total disability. (Exh. 23 at 75). Instead, Claimant's other disabilities contributed to his current global disability. (Exh. 23 at 36).

Similarly, Dr. Lennard found that Claimant was permanently and totally disabled, but he concluded that Claimant's inability to maintain full time gainful employment was based on his morbid obesity, severe bilateral knee arthritis, diabetes, and peripheral neuropathy. (Exh. A at 12; Exh. B at 29-30, 33). Dr. Lennard recognized that Claimant's obesity and abnormal gait aggravated his pre-existing lumbar degeneration and the work-related back strain. (Exh. B at 23-24, 38-39). He was unable to separate the amount of back pain attributable to the work accident from the symptoms stemming from Claimant's pre-existing conditions. (Exh. B at 24, 29-30, 39-40). He testified that it would be very difficult to separate the impact of the degenerative changes, morbid obesity, and abnormal gait. (Exh. B at 28, 39-40). Dr. Lennard stated that Claimant's degenerative bilateral joint disease was not attributable to his June 1, 2018, work injury. (Exh. A, p. 12). Additionally, Dr. Lennard testified that Claimant's pre-existing conditions have progressively worsened with time, culminating in an inability to compete in the open labor market. (Exh. B at 29-33, 40-41, 52). He believed that Claimant would now be permanently totally disabled even if the lumbar degeneration and/or lumbar strain did not exist. (Exh. B at 52).

Dr. Lennard was the only medical professional to examine what, if any, work restrictions were warranted for the work injuries alone. Considering just Dr. Lennard's determination that the work injuries did not necessitate any restrictions, all three vocational experts agreed that Claimant was capable of sedentary work. (Exh. E at 32-33; Exh. iv at 41). When the work restrictions for all of Claimant's medical conditions were factored in, Ms. Sprecker and Mr. Eldred concluded that Claimant was unemployable in the labor market. (Exh. 27 at 29; Exh. C at 32; Exh. D at 18; Exh. E at 25, 27, 43, 70). Mr. Hosutt believed that Claimant remained capable of sedentary work, but acknowledged that Claimant would be unemployable if he were deemed medically required to lie down multiple times throughout the day. (Exh. ii at 49-51, 104-105; Exh. iv at 41). Arguably, some of the evidence supports a finding of permanent and total disability.

Having determined that some of the evidence supports a suggestion that Claimant is permanently and totally disabled, the cause of his inability to compete in the open labor market must be addressed. As stated above, Claimant continued to work and perform his job duties after the accident. He attained maximum medical improvement for the work injuries on August 31, 2018, and

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continued to work for another five months. Although he stopped traveling by air to see clients after the work accident, he substituted this travel with phone calls and remote/online conferences, meetings, and presentations/demonstrations. (Exh. H at 69, 95). He also traveled by car to meet with clients in St. Louis, Kansas City, Rolla, Oklahoma City, and Peoria. (Exh. H at 78). Upon being dismissed from his job on February 1, 2019, Claimant represented that he was ready, willing, and able to work for the 20 weeks he collected unemployment benefits.

Claimant contended at the hearing that his ability to do his job was meaningfully impaired after the work accident. He claimed that he was not as efficient, had trouble concentrating, did not complete assignments, had to lie down once a day, worked around 16 hours a day to accommodate his need to lie down, fell asleep at work daily, and increasingly worked from home. The record, however, does not support his assertions he made at trial. In his deposition, Claimant testified that it was "absolutely true" that he was able to continue performing his job duties without any real problems after the work accident and he worked 55-60 hours a week. (Exh. H at 69-70, 78, 96). He stated that his back pain made it harder to travel, but he conducted a lot of phone calls, Zoom presentations, and remote demonstrations. (Exh. H at 69, 95). Claimant's deposition testimony did not mention an inability to: complete assignments, meet clients' needs, or perform his day-to-day job duties. He did not mention increased work hours or a need to interrupt work to lie down during the day. Likewise, Claimant does not appear to have relayed this information to Dr. Koprivica, Dr. Lennard, Michelle Sprecker, Robert Hosutt, or Phillip Eldred. Claimant's 2018 earnings also do not reflect an impairment in his job performance. His earnings were comparable to other years. Had Claimant's job performance been significantly impacted by the work injury for six months, one would expect a noticeable decrease in earnings, a circumstance that did not occur.

Further, the medical records reveal that some of the symptoms that Claimant attributed to the work accident actually pre-date it. At the hearing, Claimant claimed that he had difficulty concentrating after the work accident and denied ever falling asleep at work before June 1, 2018. However, the medical records document extreme fatigue and concentration problems that pre-date the work accident. Approximately a year prior, Claimant was sleeping three to four hours a night and was "about to collapse with exhaustion." (Exh. 5 at 571). On April 2, 2018, Claimant saw Dr. Trygg for worsening fatigue. (Exh. 5 at 809). He indicated that his "fatigue is not anything new but it just seems to be getting worse and worse." (Exh. 5 at 809-810). He was averaging four to five hours of sleep at night and indicated that he "sometimes can even fall asleep desk at work [sic]." (Exh. 5 at 810). By May 29, 2018 (i.e., three days before the work accident), Claimant sent a message to Dr. Trygg stating: "My exhaustion is so bad, I feel like I am able to sleep all night and day barring bathroom breaks. I feel like I cannot go on much longer and not trying to be dramatic. [sic] I traveled with my boss and she could tell." (Exh. 5 at 889) He attributed his inability to go on much longer to his fatigue, relayed feeling like he could not "function anymore," and reported that his boss told him that she would support a period of short-term disability to "get [him] in a better place physically" but the "timing never seems right." Id. There is no credible evidence that Claimant's fatigue and concentration problems significantly differed post-injury or that the work accident was the cause of his alleged difficulties. Thus, Claimant's assertion that his fatigue and trouble concentrating were work-related is based on supposition and lacks the necessary evidentiary support.

When the whole record is considered, the evidence does not prove, that it is more likely true than not true, that the work injuries caused any of Claimant's alleged permanent total disability. Section 287.808 RSMo. Instead, the undersigned judge finds and determines that

18-110427

The record shows Claimant's permanent total disability is due to a subsequent deterioration of his functional abilities resulting from the continued progression of his morbid obesity, severe bilateral knee arthritis, diabetes, and peripheral neuropathy.

On January 4, 2019, Claimant reported a lot of very chronic fatigue that seemed to be worsening. (Exh. 5 at 1070). Dr. Trygg diagnosed back pain due to degenerative arthritis and chronic fatigue that was multifactorial considering Claimant's chronic pain, untreated sleep apnea, and undertreated depression. (Exh. 5 at 1074). His hydrocodone was increased from 5-325 to 10-325 and Claimant was encouraged to obtain a new sleep study. (Exh. 5 at 1075). On April 24, 2019, Claimant was seen by Dr. Trigg for worsening pain in the low back and his knees that were causing him even more problems with walking. (Exh. 5 at 1171-1172). His diagnoses included chronic pain due to "very advanced osteoarthritis of the knees and lumbar degenerative arthritis, under poor control." (Exh. 5 at 1180). After evaluating Claimant on August 20, 2019, Dr. Koprivica concluded that many of Claimant's conditions continued to progressively worsen after June 1, 2018; these conditions included his hands, knees, and low back. (Exh. 23 at 88-89). Dr. Lennard reached a similar conclusion, explaining that Claimant's pre-existing conditions progressively worsened with time and finally reached the point that it was very difficult for him to maintain full time gainful employment. (Exh. B at 29-33, 40-41, 52). Admissions by Claimant support the conclusions of Dr. Koprivica and Dr. Lennard. He testified that his right knee degenerated a little more every year and his left knee had worsened since February 1, 2019. (Exh. H at 85, 132). His bilateral hand conditions have slowly progressed, and he had gained a significant amount of weight. (Exh. H at 62, 75-77). His functional limitations appear to have also become more severe since February 1, 2019.

The competent and substantial evidence presented in this matter shows that Claimant has a complex medical history that is further complicated by the progressive nature of his pre-existing conditions and the impact these conditions have on one another. The record is clear that Claimant's pre-existing conditions were impacting his functional abilities prior to the work accident. The record also shows that Claimant had worsening functional deficits that he struggled with both before and after the work accident. Despite these difficulties, Claimant was able to work until sometime after February 1, 2019. In short, and unfortunately, Claimant's pre-existing conditions continued to progressively deteriorate and ultimately culminated in his current permanent and total disability.

As discussed above, I find Employee sustained a lumbar strain and left hip contusion/strain as a result of the June 1, 2018 accident. Dr. Koprivica assigned a 25% BAW PPD rating for the June 1, 2018 injury, which he believed was a lumbar sprain and left hip contusion. (Exhibit 25, pg. 18). As also noted above, Dr. Lennard believed Employee suffered a lumbar strain and left hip strain. (Exhibit v, pg. 12). However, Dr. Lennard believed Employee's left hip strain had resolved by his physical examination of Employee on September 2, 2020. (Exhibit vi, pg. 35). In his deposition testimony, Dr. Lennard assigned a 5% BAW PPD rating for Employee's ongoing lumbar strain. Dr. Lennard clarified that the 10% BAW PPD rating for the lumbar spine and left hip in his September 3, 2020 report also accounted for underlying degenerative changes in Employee's lumbar spine. Dr. Lennard testified 5% BAW PPD is attributable for the underlying degenerative changes, and 5% BAW PPD for the lumbar strain. (Exhibit vi, pg. 36).

I find the opinion of Dr. Lennard more credible and persuasive than that of Dr. Koprivica regarding ongoing disability. I do, however, agree with Dr. Koprivica's opinion that the severity of Employee's disability presentation is one that would be considered unusual in response to the

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TI06880664

Objective physical impairment he sustained. (See Exhibit 25, pg. 16). Employee's subjective complaints, as outlined in the various experts' reports and Employee's testimony, appear far beyond what is expected for a strain/sprain or contusion type injury to Employee's back. This is not the situation where the IME doctors are at odds over the nature of the work injury - they both agree it is a sprain/strain and contusion type injury. I simply do not find Employee credible as to what is causing his ongoing subjective complaints. Likewise, I do not find Dr. Koprivica's restrictions and limitations persuasive or credible. I find Dr. Lennard's restrictions more credible. Meaning, it is not the diagnosed ongoing lumbar strain he sustained on June 1, 2018 that is causing the extent of his overwhelming disability presentation.

I find and conclude Employee had other conditions that developed disability after the June 1, 2018 injury, and are unrelated to the June 1, 2018 injury. Both Dr. Koprivica and Dr. Lennard testified Employee has multiple conditions that are degenerative in nature, and worsen over time. Dr. Koprivica believed the degenerative changes to Employee's back and knees will continue to get worse over time. And, the degeneration will be worse due to his obesity. (Exhibit 25, pgs. 83-84). Dr. Koprivica testified, since June 1, 2018, Employee's low back, hands or carpal tunnel, and knee complaints have all gotten worse. He believes this is due to the conditions being degenerative, as well as Employee's size remaining large. (Exhibit 25, pgs. 88-89).

Dr. Lennard testified Employee's preexisting conditions have worsened since June 1, 2018, "Yeah. I mean I think his medical problems, his preexisting conditions, have continued to worsen with time which warrant, in my view, an opinion that he's permanently and totally disabled." (Exhibit vi, pg. 30). "I think it would be difficult for him to maintain full-time gainful employment based on his morbid obesity and his severe bilateral knee arthritis and his diabetes with the peripheral neuropathy, that combination of factors." (Exhibit vi, pg. 29). Later on in the deposition, Dr. Lennard, again, testified Employee's knees, obesity, and diabetes render Employee PTD - not even considering his back. (Exhibit vi, pg. 52).

Dr. Lennard was asked how he can find Employee PTD as of his examination on September 3, 2020, but did not give Employee any limitations for the June 1, 2018 injury. Dr. Lennard testified, "All of those medical diagnosis [degenerative knees, diabetes, obesity] are known to consistently get worse with time, the effects of those to get worse specific to the degeneration and his diabetes and his peripheral neuropathy. He's certainly given a history that he's gained considerable weight in the last five years alone. And those factors themselves are enough to warrant that he's not capable of gainful employment." (Exhibit vi, pgs. 31-32).

Other indications from the record that show Employee's health had dramatically deteriorated after June 1, 2018, but unrelated to the June 1, 2018 lumbar strain and left hip strain, are:

- On August 24, 2018, Employee communicated ongoing shortness of breath to the physician's office. Stating, "I am wondering if it could be, I am just so fat that it pushes up on my lungs and I can't get a breath," also indicating he stands and takes a few breaths to slowly recover, but panics, feeling like he will not breathe. She responded that it was possible his weight could cause a portion of his shortness of breath.

- On September 24, 2018, Employee communicated to Dr. Trygg he was doing okay since taking therapy but the last few days were getting worse with his back and knees and he would like to get a handicap sticker. He indicated it was hard getting through airports especially with

his back when carrying luggage, and stated, "[M]y boss is concerned and does not want me to try without talking with you first". Dr. Trygg replied "I think whatever you want to try on the work thing is up to you. We'll support your decision."

- On January 4, 2019, Employee presented to Dr. Trygg in no obvious distress, describing very chronic fatigue that seemed to be getting worse and noting that he felt like he could sleep all of the time. He described that some of it may be due to depression over his failing health and his mother's worsening medical problems. He failed to follow through with the referral to the sleep clinic due to issues happening at home with his mother. He noted that chronic pain with his knees and back seemed to be worse since his fall at the airport as he reported taking two Norco tablets a day and Naprosyn. Dr. Trygg's impressions included chronic fatigue due to chronic pain, untreated sleep apnea, and undertreated depression. She also noted back pain due to lumbar degenerative arthritis and questioned whether he would be a good candidate for pain clinic due to body habitus and difficulty with epidural pain shots.

- On February 7, 2019, Employee emailed Dr. Trygg stating, "I lost my job this week. Because I was no longer comfortable traveling due to my back and knees, I could no longer do what they expected physically."

- On April 24, 2019, Employee saw Dr. Trygg in no obvious distress and weighing 429 pounds. He came in because he developed an ulcer on the great left toe, and had continued swelling of his feet and legs. He reported worsening pain in the lower back and knees that was prohibiting his walking even more. Her impressions included diabetic foot ulcerative cellulitis of the toe, uncontrolled type II diabetes with diabetic neuropathy, and chronic pain due to very advanced and poorly controlled osteoarthritis of the knees and lumbar degenerative arthritis.

- On October 17, 2019, Employee saw Dr. Trygg reporting that he continued on Percocet for his advanced osteoarthritis of the knees and worsening low back pain when standing or walking. He indicated he was unable to do any exercise, but was current with his endocrinologist and noted his left toe ulcer had healed up after several visits with the podiatrist. Dr. Trygg's impression remained chronic lumbar and knee pain due to degenerative arthritis, uncontrolled type II diabetes, uncontrolled hypertension, obesity, aortic stenosis and regurgitation, hypercholesterolemia, and insomnia due to anxiety.

- Social Security Administration (SSA) records showed that Employee filed his initial claim for disability on October 7, 2019 indicating he was unable to function and/or work as of February 1, 2019 due to high blood pressure, osteoarthritis of both knees, venous insufficiency in his legs, high cholesterol, morbid obesity, acid reflux disease, aortic heart valve narrowing and regurgitation, long-term type II diabetes mellitus with hyperglycemia, and hyperopia of both eyes.

- Employee underwent an examination for disability, presumably at the request of SSA, on December 23, 2019 performed by nurse practitioner Shari Hood, F.N.P.-C. with Exam Pro, L.L.C. of Springfield. Ms. Hood's conclusion was that Employee could sustain job related duties of sitting, hearing, and speaking without difficulty, but would be unable to sustain job related duties of standing, walking, lifting, carrying, handling objects, or travel due to morbid obesity, chronic lower back pain, and decreased manual dexterity with the left hand.

It is clear, and I find, that Employee has developed disabilities after the June 1, 2018 injury, but these are not caused by the June 1, 2018 injury. Indeed, I find and conclude Employee has PPD in the amount of 5 % BAW, or 20 weeks, for the work related lumbar strain on June 1, 2018.

Timothy McCann v. Change Healthcare

18-110427

I do not find any PPD for the left hip strain, since I find Dr. Lennard's opinion credible and more persuasive that the left hip strain had resolved by the date Dr. Lennard saw Claimant, September 3, 2020. Exhibit B, p. 35.

The undersigned judge makes a finding that Claimant has proven he sustained a 5% permanent partial disability of the body-as-a-whole from the work accident relating to the lumbar strain, but he has failed to prove an entitlement to permanent total disability (PTD) benefits against employer/insurer under the Missouri Workers' Compensation Law.

Employer is only responsible for the disability sustained as a result of the "accident" that resulted in the "injury" relating to the fall from the wheel chair as those terms are defined within Section 287.020.2 & .3 RSMo. It is this judge's determination that disabilities Employee claims he is experiencing - beyond the lumbar strain, such as obesity, diabetes, and end stage degenerative joint disease, and the like, were not caused by the accident or the resulting injury resulting from the accident. Employer has no responsibility to Claimant for those unfortunate health conditions even if the totality of the evidence would point to PTD for Claimant.

Employer is responsible for 20 weeks of PPD at a compensation rate of 483.48, for a total of 9,669.60.

IV. Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund (SIF), is liable for payment of permanent total disability (PTD) compensation pursuant to Section 287.220.3, RSMo?

It is well established that, "[T]he Second Injury Fund is not liable for any progression of claimant's preexisting disabilities not caused by claimant's last injury. See *Frazier v. Treasurer of Missouri as Custodian of Second Injury Fund*, 869 S.W.2d 152, 155 (Mo.App.E.D.1993)." *Garcia v. St. Louis County*, 916 S.W.2d 263, 266 (Mo.App. E.D. 1995), *overruled, on other grounds, by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). All claims made against the Second Injury Fund for PTD made after January 1, 2014, shall only be compensable pursuant to Section 287.220.3(2) and its subsections. Section 287.220.3(2) RSMo. It is clear from the record that Employee's health has dramatically deteriorated; however, it is equally clear that Claimant's continued deterioration is not due to the June 1, 2018 injury, which was only a lumbar strain and left hip contusion strain.

Again, Section 287.220.3 applies to all claims against the Fund for injuries occurring after January 1, 2014. *Cosby v. Treasurer of State of Missouri as Custodian for Second Injury Fund*, 579 S.W.3d 202, 207 (Mo. banc 2019). Pursuant to § 287.220.3(2)(a)a, Claimant must first have "a medically documented preexisting disability" equaling a minimum of "50 weeks" of PPD 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 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

See, § 287.220.3(2)(a)a.

The Missouri Supreme Court has stated:

> Section 287.220.3(2)(b) specifies that the subsequent work-related injury must combine "with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph." (Emphasis added.) By specifying that the preexisting disability must qualify under one of the four eligibility criteria in the first condition, the legislature excluded disabilities that are not the primary injury and that do not qualify under the first condition from being considered when determining if the claimant meets the second condition. Therefore, 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 the State of Missouri v. Parker*, 622 S.W.3d 178 (Mo. 2021).

**Step 1:** Is there 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?

Dr. Koprivica rated multiple preexisting conditions: bilateral wrists (35% of each wrist), morbid obesity (25% BAW), diabetes (15% BAW), and bilateral knees (35% of each knee). Dr. Lennard rated multiple preexisting conditions as well: bilateral knees (30% of left knee, 35% of right knee), morbid obesity (25% BAW), diabetes with peripheral neuropathy (20% BAW), and degenerative changes in the lumbar spine (5% BAW).

**Right Knee:** Employee injured his right knee while playing college football at MSSU. According to Employee, he had tears of the ACL, MCL, medial and lateral meniscus. By 2005, the medical records show Employee had severe tricompartmental degenerative joint disease in his right knee. Also by 2005, Employee was receiving injections to his right knee. By 2008, Dr. Nachtigal was recording that Employee needed a total right knee replacement. The use of injections and narcotic pain medication for the right knee continued over the years leading up to June 1, 2018.

Leading up to June 1, 2018, Employee testified his right knee caused him to walk more slowly, and with a limp. He also testified to limitations with kneeling and squatting. He testified he

required the assistance of a cane about 30 % of the time. Employee testified he could, and would, climb stairs more slowly due to his right knee, but preferred to use an elevator when available.

I find and conclude Employee's right knee equaled, at a minimum, fifty weeks of permanent partial disability prior to June 1, 2018.

Left Knee: By June 2005, Dr. Nachtigal noted Employee's left knee also had severe tricompartmental degenerative joint disease. By July 2008, Dr. Nachtigal noted a left total knee replacement was discussed with Employee. It is also recorded in the medical records that, at times, the left knee also received an injection. However, Employee's account of his actual ability to function is one of little to no disability regarding his left knee.

Employee testified, "But I really wasn't having any issues with my left knee." (Exhibit i, pg. 44.) Employee testified his left knee was not functionally giving him problems with mobility prior to June 1, 2018. (Exhibit i, pg. 44-45). Likewise, Employee testified his left knee was not interfering at all with his ability to walk or climb stairs. Id. When being evaluated by Dr. Lennard on September 3, 2020, Employee denied prior problems with his left knee. (Exhibit v, pg. 2). Likewise, when being evaluated by Phil Eldred on September 9, 2020, Employee's left knee was not listed in the "Medical History" portion on page 2 of Exhibit 27. Further, Mr. Eldred did not identified the left knee as a preexisting condition on page 29 of Exhibit 27.

The definition of "preexisting disability" has been interpreted to mean different things over the years; however, a few cases help give clarity to the term. Leutzinger v. Treasurer of Missouri provides historical insight as to what "preexisting disability" means:

A claimant must have a permanent "previous disability" in order to trigger section 287.220 .1 RSMo Supp. 1993 (the second injury fund statute). "Disability" had been interpreted to relate to "disability to work," and to mean an "industrial disability," or "loss of earning capacity." Wilhite v. Hurd, 411 S.W.2d 72, 77 (Mo.1967). It did not simply mean any preexisting medical condition. Id. If an employee could not establish that he had a preexisting disability which was either "industrial" or related to his "loss of earning capacity," he could not collect from the second injury fund.

We note that the term "industrial disability," which has required much interpretation and reinterpretation by the courts, never arises in the statute. Rather, the term itself was judicially created to insure that $\S$ 287.220 would be used only for those who had previously suffered a bona fide work-related disability. Wilhite, 411 S.W.2d at 77. This was in keeping with the purpose of $\S 287.220$, which was enacted to encourage employment of disabled workers by reducing the liability of their employers. Meilves v. Morris, 422 S.W.2d 335, 338 (Mo.1968). If a claimant could not establish that his previous ailment was industrially disabling, $\S 287.220$ would not apply. Therefore, the employer's liability would not be reduced, and the second injury fund would not be liable.

Id.

The judicial construct of "industrial disability" was superseded on August 28, 1993, by the Missouri Legislature, when it amended § 287.220.1 to make it clear which preexisting conditions would be considered serious enough to trigger the statute. Laws of 1993, pp. 779-80. With respect to permanent partial disabilities, the statute now reads:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed [...]

Instead of the judicially created "industrial disability" requirement, the legislature has provided that the preexisting injury must be "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." Id. In addition, for injuries resulting in permanent partial disability, the preexisting injury to a body as a whole must equal a minimum of fifty weeks of compensation, or if an injury to a major extremity only, must equal a minimum of fifteen percent permanent partial disability.

Leutzinger v. Treasurer of Missouri, Custodian of Second Injury Fund, 895 S.W.2d 591, 592-93 (Mo.App. E.D. 1995). The history of the definition was further explained in the Loven decision:

In keeping with the definition of "disability" and the purpose of workers' compensation as being to indemnify for a loss resulting from a disability to work, or harm to earning capacity, it is logical that the "preexisting permanent partial disability" referred to in Section 287.220.1 relates to a condition that affects or has the potential to affect an ability to work and earn. This is fortified by the additional requirement in that statute that the "disability" be of such seriousness as to constitute a hindrance or obstacle to employment or reemployment.

Loven v. Greene County, 63 S.W.3d 278, 285 (Mo.App. S.D. 2001). The Loven court continued:

No authority is cited to us, and we have found none, indicating that a person is necessarily disabled if there is any conceivable occupation that he would not be able to perform because of his condition. Likewise, we are not cited to any authority holding that if a preexisting condition would hinder or be an obstacle in acquiring any conceivable type of occupations, it would qualify as a hindrance or obstacle under § 287.220.1. The "hindrance or obstacle" provision of § 287.220.1 obviously refers to a hindrance or obstacle to obtaining employment or reemployment for which the employee would otherwise be qualified. Otherwise, a preexisting condition that would be a hindrance or obstacle to obtaining any employment regardless if the applicant was otherwise qualified for the position would result in a false and inappropriate test for applicability of that statute.

Loven v. Greene County, 63 S.W.3d 278, 291 (Mo.App. S.D. 2001). As noted above, the statute has changed over the years:

Pre-1993: "permanent partial disability whether from compensable injury or otherwise"

1993 Amendment: "preexisting permanent partial disability whether form a compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes employed.

January 1, 2014 changes: "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..."

As noted above, "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes employed," is no longer in the statute. However, the legislature has once again defined the nature of the preexisting disability which will give rise to Fund liability: 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), (ii), (iii), or (iv). It is clear that not all preexisting conditions, or disabilities, will qualify for Fund liability.

I find and conclude Employee's left knee, as it existed before the June 1, 2018 accident, does not equal a minimum of fifty weeks of permanent partial disability. The medical records show an internal condition or impairment within Employee's knee; however, I find and conclude there is insufficient evidence to show Employee was functionally impacted in his ability to work or earn a living, or in his activities of daily living away from work, prior to June 1, 2018.

Diabetes: The medical records document Employee having diabetes as far back as 1998, and insulin dependent around 2006. The medical records show Employee's ability to control his blood sugar level has fluctuated over the years. On April 2, 2018, Employee presented to Dr. Trygg's office with worsening fatigue, ongoing stress due to his mother's health, difficulty falling asleep and sleep interruption with urination about four times per night. He reported he was averaging four to five hours of sleep per night, indicating he could even fall asleep at his desk while working. He continued to be fairly breathless on exertion and reported taking Norco due to knee pain and to help with sleep. Exhibit IV, pg. 16. Employee contacted Dr. Trygg's office on May 29, 2018 reporting fatigue. Employee indicated his exhaustion was so bad he questioned whether he would be able to "go on much longer." Dr. Trygg replied that he could be in congestive heart failure, that a repeat echocardiogram may be needed, and she encouraged him to talk to his endoscopy specialist. Exhibit IV, pg. 16. Dr. Koprivica testified, "His diabetic control was poor, and he had uncontrolled diabetes throughout his records, and that was leading to issues with fatigue." (Exhibit 23, pg. 34).

Timothy McCann v. Change Healthcare

18-110427

In his deposition testimony, Employee only mentioned right knee pain and occasional hand numbness as conditions that caused problems performing his job duties or activities of daily living prior to June 1, 2018. Dr. Koprivica opined Employee's uncontrolled diabetes was a significant contributing factor to Employee's bilateral carpal tunnel syndrome. (Exhibit 23, pg. 21). Dr. Lennard's diagnosis was diabetes with peripheral neuropathy. (Exhibit v, pg. 12).

In his deposition, Employee acknowledged a prior diagnosis of diabetic neuropathy in his feet, which caused numbness in his feet. However, he testified the numbness in his feet never woke him up at night, or affected his ability to walk. (Exhibit i, pg. 142).

I find and conclude Employee's diabetes, which caused fatigue, peripheral neuropathy, and bilateral carpal tunnel syndromes, equaled, at a minimum, fifty weeks of permanent partial disability prior to June 1, 2018.

**Lumbar Spine:** According to Employee, any prior back pain was temporary and eventually resolved. (Exhibit 25, pg. 8). Dr. Lennard rated underlying degenerative changes to Employee's lumbar spine at 5% BAW PPD, or 20 weeks. Dr. Koprivica did not even give a preexisting lumbar rating. Phil Eldred did not even list Employee's lumbar spine as a preexisting condition.

I find and conclude Employee's lumbar spine, as it existed before the June 1, 2018 accident, does not equal a minimum of fifty weeks of permanent partial disability. The medical records show an internal condition or impairment within Employee's back; however, I find and conclude there is insufficient evidence to show Employee was functionally impacted in his ability to work or earn a living, or in his activities of daily living away from work, prior to June 1, 2018.

**Anxiety:** Employee testified to having a level of anxiety that developed around his daughter's cancer diagnosis. (Exhibit v, pg. 3). He received some therapy, and was taking 1 mg of Xanax per day, about three years prior to June 1, 2018. The medical records also indicate Employee felt stress due to the high demands of his job. However, there is no evidence that Employee's ability to function at work or in his activities of daily living were impacted. Employee continued to be a top sales performer, as being a part of numerous President's Clubs indicates. In addition, the record lacks any expert testimony of a rating of permanent partial disability for anxiety.

I find and conclude Employee's anxiety, as it existed before the June 1, 2018 accident, does not equal a minimum of fifty weeks of permanent partial disability. I find and conclude there is insufficient evidence to show Employee was functionally impacted in his ability to work or earn a living, or in his activities of daily living away from work, prior to June 1, 2018.

**Obesity:** Employee has always been a larger man. When he went to play college football, it was as a lineman. Employee testified he has always been over 300 pounds as an adult. Dr. Trygg noted Employee weighed 400 pounds in 2001. By May 18, 2016, Dr. Seagrave noted Employee had lost a considerable amount of weight and Employee hoped to be below a BMI of 40 in a few months. He was at a BMI of 44.6. On March 15, 2017, Employee's BMI was 52.8. On May 22, 2017, Employees BMI was 53.7. On April 25, 2018, Employee's BMI was 53.6, and 429 pounds. Employee reported to Dr. Ted Lennard on September 3, 2020 that his weight had ranged from 316 to 478 pounds in the last five years.

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However, Employee testified he never had any problems performing his job duties for Commerce Bank, Foster Medical, St. Paul Hospital, Texas Air Supply, Signature Healthcare, Texas Rangers, Apria Healthcare, or when he first began working for McKesson. (Exhibit i, pgs. 26, 30, 32, 33, 34, 35, 42). Employee testified he was not having any physical problems doing anything he wanted in his personal life through 2003 or 2004, when he started as a senior account executive. (Exhibit i, pg. 41-42). Even after starting at McKesson, Employee did not have any problems performing his job due to obesity. Employee explicitly testified his weight had never prevented him from doing his job well in any way. "No. And I'd essentially been doing the same job, you know, traveling and seeing customers for 20 years, so..." (Exhibit i, pgs. 62-63).

In the years before June 1, 2018, Employee was active. He told Dr. Lennard he enjoyed working in his yard. He would plant flowers and put new mulch down every year. One year he built a new shed. He would also trim trees. He was outside doing activities in the yard 5-6 hours a day on Saturday and Sunday every weekend. He also liked to fish. He would fish about four times a month from spring to fall for 4-5 hours. He would pick up his grandchildren and take them fishing. (Exhibit v, pg. 3).

Around 2016, Employee performed home renovations. One project involved building a screened-in room. Employee performed demolition, which was his biggest contribution. He then put in the screening, hung lights, and performed the electrical work. (Exhibit i, pg. 11). In another project, Employee replaced toilets and fixtures around his home. (Exhibit i, pg. 11).

Employee reported being able to walk 10 miles during a cancer fundraising event with his younger daughter in June 2016. Although he reported bruising his toes during the walk, he indicated, otherwise, he handled the distance well. (Exhibit iv, pg. 23).

Employee told Dr. Lennard that, prior to the accident on June 1, 2018, he could stand 2-3 hours, sit 2-3 hours, bend without difficulty, lift 160 pounds, twist, climb 5 flights of stairs and stand upright from a seated position without problems. (Exhibit v, pgs. 2-3). Employee testified he could sit 8-9 hours per day at the office if he was not traveling, and that he did not have a limitation on his ability to sit prior to June 1, 2018. Likewise, he indicated he did not self-limit lifting prior to June 1, 2018. He testified he was able to take two or three forty pound bags of topsoil and walk them from the front of his house to the back of his house. (Exhibit i, pgs. 48-49).

Further, Phil Eldred, Employee's own vocational expert, opined Employee's obesity was a preexisting condition, but it did not constitute a hindrance or obstacle to employment. (Exhibit 27, pg. 29). At final hearing, Mr. Eldred testified he did not have any information or reason to believe Employee's weight was interfering with his ability to work or function outside of work before June 1, 2018.

Based on the evidence in this claim, I find and conclude Employee's weight or obesity, as it existed before the June 1, 2018 accident, does not equal a minimum of fifty weeks of permanent partial disability. The medical records show a preexisting condition; however, I find and conclude there is insufficient evidence to show Employee was functionally impacted in his ability to work or earn a living, or in his activities of daily living away from work, prior to June 1, 2018.

Importantly, and as an additional finding, I find and conclude Employee's obesity is not a "permanent partial disability" under 287.220.3(2)(a)a. "A 'permanent partial disability' is 'a disability that is permanent in nature and partial in degree.'" Jim Plunkett, Inc. v. Ard, 499 S.W.3d 333, 339 (Mo.App. W.D. 2016). Dr. Koprivica testified obesity is treatable through a variety of ways. (Exhibit 23, pg. 88). Dr. Lennard testified Employee does not have a medical condition, such as a thyroid, autoimmune, or body system functioning, that prevents him from losing weight. Dr. Lennard agreed Employee has the capacity to lose weight. (Exhibit vi, pg. 36-37). Employee, himself, testified he has been able to lose weight over the years. As such, I find Employee's obesity is not a permanent disability to trigger Fund liability.

Step 2: Does the medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation fit into (i), (ii), (iii), or (iv) of 287.220.3(2)(a)a?

As noted above, the only two preexisting disabilities, equaling a minimum of fifty weeks of PPD, are Employee's right knee and diabetes.

Right knee. Employee injured his right knee playing college football in 1977. By 2005, Dr. Nachtigal diagnosed severe tricompartmental degenerative joint disease. In June 2006, Dr. Trygg diagnosed severe tricompartmental degenerative joint osteoarthritis of the right knee. Dr. Koprivica diagnosed end-stage degenerative joint disease in the right knee. Dr. Lennard diagnosed degenerative joint disease of the right knee.

The only category that Employee's degenerative right knee condition could potentially fall within is 287.220.3(2)(a)a.(iii) which provides:

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[.]

(Bold added). "Injury" is defined by 287.020.3(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 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.

(Underline added).

Dr. Koprivica made a specific finding in his August 20, 2019 report, and in his deposition testimony, that Employee's end-stage degenerative joint disease in both knees do not aggravate or accelerate the June 1, 2018 lumbar strain/sprain and left hip strain - which is the violence to the physical structure of Employee's body. (Exhibit 23, pgs., 20-21 & 60). I find Dr. Koprivica more credible than any other physician on this issue. Once again, Employee bears the burden of production and persuasion. Employee produced the opinion of Dr. Koprivica. I find and conclude Employee has proven, by Dr. Koprivica's opinion, that his preexisting degenerative right knee condition did not directly aggravate or accelerate the June 1, 2018 lumbar strain/sprain and left hip contusion strain. As such, Employee's preexisting right knee does not qualify for Fund benefits pursuant to 287.220.3(2)(a)a.(iii).

Diabetes: As noted above, Employee's uncontrolled diabetes caused fatigue, peripheral neuropathy, and bilateral carpal tunnel syndromes. Once again, Dr. Koprivica made a specific finding in his August 20, 2019 report, and in his deposition testimony, that Employee's insulin dependent Type II diabetes mellitus does not aggravate or accelerate the June 1, 2018 lumbar strain/sprain and left hip strain - which is the violence to the physical structure of Employee's body. (See, Exhibit 23, pg. 19, 20 & 40). I find Dr. Koprivica more credible than any other physician on this issue. Once again, Employee bears the burden of production and persuasion. Employee produced the opinion of Dr. Koprivica. I find and conclude Employee has proven, by Dr. Koprivica's opinion, that his preexisting diabetes did not directly aggravate or accelerate the June 1, 2018 lumbar strain and left hip contusion strain. As such, Employee's preexisting diabetes does not qualify for Fund benefits pursuant to 287.220.3(2)(a)a.(iii).

Step 3: Does the June 1, 2018 injury (lumbar strain and left hip contusion strain) result in PTD when combined with all preexisting disabilities that qualify under Step 1 & 2?

As noted above, Employee does not have a single preexisting disability that satisfies 287.220.3(2)(a)a. As such, Employee is not entitled to benefits from the Second Injury Fund.

Employee's claim against the Second Injury Fund claim is denied.

SUMMARY AND CONCLUSION

This Final Hearing required two days of testimony and involved a multitude of exhibits between the three parties. A summary and conclusion of this award is therefore in order. Citations to the various record will be omitted within this summary.

According to Employee's medical expert, Dr. Koprivica, Employee weighed 430 pounds when he examined him in August 2019, and Dr. Koprivica said Employee was morbidly obese at the time of the injury. Employee's large size (447 pounds at the time of the accident) was readily admitted by Employee during his testimony at trial and it was readily observable.

It is abundantly clear to this judge, from reading the doctor's deposition transcripts, that the medical experts struggled, to a degree, in arriving at some of their findings and opinions in this matter

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relating to Mr. McCann. It is this judge's reasonable inference that this struggle, at times, was a result of Mr. McCann's obvious health conditions of which he presented that had no relationship to his work that he was performing prior to falling out of the wheel chair or, frankly, related to the asserted disability from the fall out of the wheel chair, itself. Obviously, these opinions and findings by the doctors would be important in deciding whether the Employer and/or the Second Injury Fund should be responsible for paying benefits to Mr. McCann for the alleged permanent total disability due to falling out of the wheel chair. In fact, much of the medical analysis centered on Claimant's morbid obesity, diabetes, and knee issues-severe degenerative joint disease, all conditions in existence well before his fall from the wheel chair. Clearly, this was a circumstance on the doctors' minds.

Employee, nevertheless, asserts he is permanently and totally disabled due to his preexisting disabilities and/or his work injury. Employee has the statutory burden to establish that he is entitled to such benefits. This judge firmly concludes that Employee has failed in this burden. The record shows that Employee was performing his work and life activities prior to the injury, an injury that resulted from falling out of the wheel chair at the airport. This injury resulted in a diagnosis of a lumbar strain and a hip contusion (a bruise). This judge accepts, as most persuasive, Dr. Lennard's assignment of a 5% BAW permanent partial disability associated with this work injury.

Also, this judge accepts, as most persuasive, Dr. Lennard's opinion that no work restrictions were required due to the lumbar and left hip strain. This would include the suggested restriction that Employee must lay down at times during a work day due to the disabilities that he claims. Therefore, considering Dr. Lennard's opinion, if Employee feels he "needs" to lay down during a work day this is not a "need" that results from the back strain and hip bruise that were a consequence from falling out of the wheel chair. Instead, the undersigned judge determines and finds that this "need" is clearly due to Employee's health related conditions that predated his work injury and then continued to progress thereafter, independently from the work injury. Employer's vocational expert, Mr. Hosutt, found that Claimant was employable in a sedentary capacity, in the absence of a need to lie down multiple times during a work day.

As discussed above, Employee developed progressive disabilities after the June 1, 2018, injury, but based on the more persuasive expert testimony these progressions were not caused by the June 1, 2018, injury. I find Dr. Lennard's opinion and Bob Hosutt's vocational opinion, mentioned above, most credible and most persuasive. I therefore find that Mr. McCann is employable in the open labor market in a sedentary capacity. If Employee cannot now work, it is only due to the disability that developed after the June 1, 2018, injury, disabilities not caused by the June 1, 2018 injury. In either scenario, neither the SIF nor the Employer is liable for PTD benefits to Employee pursuant to Chapter 287.

I hereby award Claimant the total sum of $9,669.60 of permanent partial disability compensation calculated based on 20 weeks at the weekly rate of $483.48. This is a final award and subject to appeal according to law.

The Alberhasky Law Firm is allowed a fee of 25 percent of all sums awarded under the provisions of this final award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein. Interest on all sums awarded hereunder shall be paid as provided by law.

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I certify that on Oct 152021

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: $\frac{\text { Hoomi. Gasson }}{\text { By: }}$


Made by: $\frac{\text { Kevin Thomas }}{\text { Administrative Law Judge }}$

Division of Workers' Compensation