Larry Obermann v. BRM LLC

No party disputes that the employee is permanently and totally disabled, as defined by law. We do not disturb the ALJ's finding that the employee sustained PPD in the amount of 22.5 % of the right shoulder at the 232 -week level attributable to his November 3, 2017, primary injury.

We further agree with the ALJ's finding that the employee had the following medically documented preexisting compensable disabilities:

- Attributable to a 1991 right knee injury: 32.5\% PPD at the 160-week level (52 weeks)

- Attributable to a 1995 left knee injury: 17.5\% PPD at the 160-week level (28 weeks)

- Attributable to a 2008 right ankle injury: 50\% PPD at the 160-week level (80 weeks)

- Attributable to a 2008 left ankle injury: 40\% PPD at the 160-week level (64 weeks)

We concur that the employee further had preexisting disability of 22.5 % of the right shoulder ( 52.2 weeks) attributable to chronic rotator cuff tear, AC joint arthritis, synovitis, and bicipital tendonitis, which was asymptomatic before his November 3, 2017, primary injury.

No medical or vocational expert opined that the employee's PTD resulted solely from the combination of the November 3, 2017, primary injury and the preexisting disabilities exclusive of disability attributable to his compensable 1995 left knee injury.

Based on the medical documentation and the opinions in evidence, we, therefore, find that the employee is PTD, as defined by law, as a result of the combination of the primary injury and all of his preexisting disabilities, including the left knee injury.

Employee seeks an award of PTD benefits from the Second Injury Fund. Because the employee's primary injury occurred after January 1, 2014, the criteria set forth under § 287.220.3.(2) RSMo applies to establish a compensable claim against the Second Injury Fund. See Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019).

In relevant part, the statute provides as follows:

Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(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 [emphasis added]; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent workrelated injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent workrelated 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 workrelated 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[.]

§ 287.220.3(2) RSMo.

Under § 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our courts have instructed:

A strict construction of a statute presumes nothing that is not expressed. ... [I]t means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).

The ALJ correctly cited § 287.220.3(2) RSMo as applicable to the employee's claim. She acknowledged that neither employee's medical expert Dr. Shawn Berkin nor the employee's vocational expert Susan Shea specifically addressed whether they would consider the employee permanently and totally disabled excluding his preexisting compensable 17.5 % left knee disability, totaling 28 weeks.

Despite this finding, the ALJ awarded PTD against the SIF under § 287.220.3(2) RSMo. She reasoned:

[T]he credible evidence supports the conclusion that the Employee's 1995 left knee injury did not negatively impact his residual functional capacity to any significant degree, and as such I find that excluding Employee's 1995

non-qualifying left knee injury from the analysis does not impact the ultimate conclusions regarding his employability. ${ }^{1}$

We reverse the ALJ's award because it is based on her personal opinion and unsupported by the expert medical and vocational evidence in the record. "The record must contain medical testimony or evidence supporting the Commission's finding of causation. . . Absent medical testimony, any finding of causation [is] based merely on conjecture and speculation rather than on substantial evidence. (citations omitted)." Lynch v. Treasurer, 635 S.W.3d 573,584 (Mo. App. 2021). We deny the employee's Second Injury Fund claim because he failed to demonstrate that his permanent total disability resulted solely from a combination of disability attributable to the employee's primary injury and one or more preexisting disabilities that qualify based on the enumerated criteria under § 287.220.3(a)a. Klecka v. Treasurer of Mo. As Custodian of the Second Injury Fund, 644 S.W.3d 562, 566 (Mo. banc 2022), citing Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021).

The only evidence in the record demonstrates that the employee's PTD is due to the combination of his primary injury and multiple claimed preexisting disabling conditions, including at least one--17.5\% PPD at the 160-week level attributable to the employee's 1995 compensable left knee injury, totaling 28 weeks--that did not equal a minimum of fifty weeks of compensation according to medical standards used in determining such compensation as required by $\S 287.220 .3(2)$ RSMo. Because the left knee was below the statutory threshold, it cannot be considered in the Commission's PTD determination.

Accordingly, under the Supreme Court of Missouri's interpretation of the law applicable to post-2014 SIF claims in Parker and Klecka, supra, the employee has failed to satisfy the requirements of $\S 287.220 .3 RSMo. The ALJ incorrectly applied \S 287.220 .3$ RSMo to the evidence in the record and exceeded her statutory authority by including a nonqualifying preexisting condition in awarding PTD against the SIF. For this reason, we are compelled to reverse her award as a matter of law. Because we resolve the SIF's appeal on this issue alone, the remaining issues raised by the SIF's application for review are moot for purposes of this award.

We reverse the award of the administrative law judge.

The employee's claim against the Second Injury Fund is denied because his evidence fails to satisfy the standard set forth under § 287.220.3 RSMo.

The award and decision of Administrative Law Judge Amy L. Young, issued December 30, 2021, is attached solely for reference.

[^0]

[^0]: ${ }^{1}$ Award, p. 18.

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Given at Jefferson City, State of Missouri, this $\qquad 13^{\text {th }} \qquad$ day of September 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Attest:

Rodney J. Campbell, Chairman

DISSENTING OPINION FILED

Shalonn K. Curls, Member


Kathryn Swan, Member

I have reviewed and considered all of the competent and substantial evidence on the whole record.

I would affirm the administrative law judge's (ALJ) award allowing benefits for permanent total disability (PTD) against the Second Injury Fund (SIF).

"In 2013, the legislature amended section 287.220 to limit the number of workers eligible for fund benefits because the fund was insolvent." Cosby v. Treasurer of State, 579 S.W.3d 202, 205 (Mo. banc 2019). It is reasonable to infer that the legislature's statutory changes were designed to ensure that the most severely injured workers be given priority in determining eligibility for an award against the SIF.

No provision of $\S 287.220 .3 .2$ RSMo requires the ALJ or the Commission to confine its consideration of medical causation of an employee's PTD to the specific words used by a medical or vocational expert without regard for the context of their opinions. The ALJ correctly based her SIF PTD award on careful consideration of the evidence in the record as a whole regarding the seriously disabling effects of the employee's multitude of disabling preexisting conditions in combination with disability attributable to his primary injury.

As noted by the appellate court in Pavia v. Smitty's Supermarket, 118, S.W.3d 228 (Mo. App. 2003), "the Commission does not have to make its decision only upon testimony from physicians; it can make its findings based on the entire evidence . . . the Commission is not bound by the percentage estimates of medical experts and it may consider all of the evidence, including the testimony of the employee and all reasonable inferences." ${ }^{2}$

In this case, the ALJ reasoned that because the employee credibly testified that his left knee did not cause him any problems at work after he was released from treatment; because his treating doctors imposed no permanent physical restrictions related to his left knee; because vocational expert Susan Shea made no mention of the employee's left knee injury in her report or deposition; and because Dr. Berkin found no tenderness, swelling, pain, instability, or significant loss of range of motion in the employee's left knee, that "the credible evidence supports the conclusion that the Employee's 1995 non-qualifying left knee injury did not negatively impact his residual functional capacity to any significant degree, and as such . . .excluding Employee's 1995 left knee injury from the analysis [of medical causation of his PTD] does not impact the ultimate conclusions regarding his employability." ${ }^{3}$

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the ALJ correctly excluded the employee's minimally disabling non-qualifying 1995 left knee injury in concluding that his numerous qualifying preexisting disabilities combined with disability from his primary injury to cause the employee PTD consistent with the requirements of § 287.220.3 RSMo The majority's opposite conclusion thwarts the intent of the

[^0]

[^0]: ${ }^{2} Pavia v. Smitty's Supermarket, 118, S.W.3d 228, 239 (Mo. App. 2003).

{ }^{3}$ Award, p. 18.

Improvee: Obermann, Larry

- 2 -

legislature to reduce SIF liability by prioritizing awards to the most severely injured workers. The award should be affirmed.

In the alternative, an appropriate course of action under these circumstances would be to remand this matter to the ALJ to allow for the presentation of additional evidence on the issue of medical causation of the employee's PTD.

On February 15, 2022, well after the parties submitted their case to the administrative law judge following the September 29, 2021 hearing, the Court of Appeals of the Western District issued James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, WD85662 (February 15, 2022). Swafford involved the critical issue of whether the Supreme Court's decision in Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019) constituted a substantive law change establishing good cause to allow an employee to present additional evidence to meet the burden of proof in a post-2014 Second Injury Fund Claim. The Court reasoned that it was unfair to punish an employee for failing to introduce evidence when he did not have the benefit of the court's guidance as to the evidence necessary to make a submissible case and unfair to deny the employee an opportunity to present evidence relevant to a newly announced legal standard.

Under Swafford, the interests of justice compel that the employee's attorney, in this case, is provided an opportunity to present additional evidence clarifying the impact of recent rulings of the Court in Treasurer of State v. Parker, 622 S.W. 3d 178,182 (Mo. 2021) and Klecka v. Treasurer of Mo As Custodian of the Second Injury Fund, 644 S.W.3d 562 (Mo. banc, 2022) given the ambiguities involved in both decisions. To deny the employee the ability to clarify whether he is permanently and totally disabled from his conditions excluding the sole "nonqualifying" condition of his right knee is also contrary to Parker's mandate that the existence of non-qualifying disability should not be counted against the employee and Klecka's instruction that "life factors" are appropriately considered in a post-2014 permanent total disability claim.

The Supreme Court of Missouri accepted the SIF's Application for Transfer of Swafford on May 17, 2022. James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, SC99563. In the absence of a remand to allow the presentation of additional evidence, the Commission should at least stay the employee's appeal pending the Supreme Court's resolution of the Swafford case.

For the above-stated reasons, I disagree with the majority's decision to reverse the ALJ's award without at least allowing the employee a full opportunity to present his case under the current state of the law.

I respectfully dissent.

Shalonn K. Curls, Member

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? November 3, 2017.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was the employer insured by above insurer? Yes.

Employee: Larry Obermann

Injury No. 17-088357

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee injured his right shoulder while trying to dislodge a boulder from a conveyer belt.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Right shoulder.

1. Nature and extent of any permanent disability: 22.5% of the right shoulder.

1. Compensation paid to date for temporary total disability: $3,157.50.

1. Value necessary medical aid paid to date by the employer-insurer: $2,385.25.

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 1,105.13.

1. Weekly compensation rate: 483.48 for permanent partial disability and $736.75 for permanent total disability.

1. Method wages computation: By stipulation.

1. Amount of compensation payable: See Award.

1. Second Injury Fund liability: See Award.

1. Future requirements awarded: N/A.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Chris Weiss.

Page 2

Employee: Larry Obermann

Injury No. 17-088357

On September 29, 2021, the employee, Larry Obermann, appeared in person and with his attorney, Chris Weiss, for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Keyla Rhoades. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Employers Mutual Insurance Co.
2. On or about the date of the alleged accident or occupational disease, the employee was an employee of Base Rock Minerals and was working under the Workers' Compensation Act.
3. On or about November 3, 2017, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was 1,105.13, resulting in a compensation rate of 736.75 for temporary total and permanent total disability benefits and $483.48 for permanent partial disability benefits.
7. The employee's injury was medically causally related to the accident.
8. Employer-Insurer furnished medical aid in the amount of 2,385.25.
9. The employer-insurer paid 3,157.50 in temporary disability benefits representing 4 2/7 weeks.
10. There is no claim for additional medical.

1. Liability for Employer-Insurer for permanent partial versus permanent total disability;
2. Liability of the Second Injury Fund for permanent total disability;
3. The date of maximum medical improvement.

The following exhibits were offered and admitted into evidence:

1. Orthopaedic Associates (1991-1996)
2. Walgreens (2008-2013)
3. Orthopaedic Surgery, Division of Washington University (2008-2009)

Page 3

Employee: Larry Obermann

Injury No. 17-088357

1. Saint Francis Medical Center (2008, 2009, 2017)
2. Dr. Gary J. Schmidt (2009)
3. Mid America Rehab (2009)
4. Pain Treatment Center (2010)
5. Dr. Peeples (2010)
6. X-rays from the Orthopedic Center of St. Louis (2010-2013)
7. Olive Surgical Group (2011)
8. Mercy Hospital (2012)
9. Regional Brain & Spine (2013)
10. Dr. Krause/Orthopedic Center of STL - Rating report 10/25/13 and medical records (2012-2013)
11. Cape Girardeau Surgical Clinic (2015-2018)
12. PCLS Toxicology Report (2016)
13. Auburn Park Imaging (2017)
14. Dr. Mall/Orthopedic Center of STL - Rating report 5/24/18 and medical records (2017-2018)
15. Orthopedic Center of St. Louis (2018)
16. Dr. Solman/Orthopedic Sports Medicine - IME 4/4/18
17. Stipulation for Compromise Settlement #91-151399
18. Stipulation for Compromise Settlement- #95-156592
19. Stipulation for Compromise Settlement - #01-167054
20. Stipulation for Compromise Settlement- #08-100779
21. Stipulation for Compromise Settlement- #08-100779 (Fund only)
22. Stipulation for Compromise Settlement- #17-088357
23. Susan Shea deposition and report
24. Dr. Berkin deposition and reports 9/16/18 and 3/11/19
25. Dr. Volarich report 9/25/20
26. Deposition of Employee 1/7/19

The Second Injury Fund Exhibits:

i. Deposition of Robert Hosutt, with Report and CV - 145 pages

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.

Any objections not previously ruled upon are hereby overruled.

The Court took judicial notice of all the records contained in the files of the Division of Workers' Compensation.

Page 4

Employee: Larry Obermann

Injury No. 17-088357

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations at Hearing, I find:

Larry Obermann (hereafter "Employee") was born on June 14, 1957. He is divorced and has three adult children. His children are not dependent upon him. Employee is not currently working and receives Social Security Disability.

Employee dropped out of high school his junior year to work so he could help his mother pay the bills after his father died. He worked at a gas station for six months, then worked at a furniture store for approximately 4 1/2 years. He started as a laborer moving furniture then advanced to a piece-rate job installing seat springs and back springs for sofas and chairs. Eventually he became an hourly rate employee. After he left the furniture store, he took a job burying phone cable for approximately 12 years. In approximately 1990, he went to work as a heavy equipment operator for Columbia Construction. He operated backhoes and performed "dirt work." He attempted to operate a crane, but was not very good at it. He performed general laborer work and some carpentry, although he described himself as a "rough" carpenter. In 2002, he went to work for Strack Stone, which was eventually bought out by Base Rock Minerals (hereafter "Employer"). Employee described himself as a working foreman. He operated front-end loaders, track hoes, and bulldozers, fed the rock crusher, shoveled rock and performed general labor. He performed maintenance at the quarry such as replacing conveyor belts on equipment. He testified he worked 12 hours a day, 6 days a week with some overtime. Despite his job title as foreman, Employee testified that he did not set schedules and the owner of the company made all the decisions while he served as the "go between guy." He did not manage inventory and does not know how to use a computer. He has tried unsuccessfully to learn.

On November 3, 2017, Employee injured his right shoulder while trying to dislodge an 8-10 inch boulder out of a conveyor belt. Employee denied any problems with his right shoulder prior to this accident. Employer authorized treatment with Dr. Nathan Mall. An MRI was ordered and showed a full thickness retracted rotator cuff tear of the supraspinatus. Dr. Mall performed an arthroscopic repair of the infraspinatus, superior capsular reconstruction for repair and reconstruction of the supraspinatus tendon, extensive debridement of the sub acromial space and intra-articular space including the labrum and the greater tuberosity. He also performed a partial synovectomy, sub acromial decompression and acromioplasty, an open AC joint resection, open exostosis excision and open subpectoral biceps tenodesis. Dr. Mall opined that the rotator cuff tear was of a chronic longstanding nature and predated the work injury. He further opined that

Page 5

**Injury No. 17-088357**

Employee sustained a strain of the shoulder as a result of the work accident. In his report dated December 12, 2017, Dr. Mall noted that he explained to Employee that if he had not had the longstanding preexisting rotator cuff arthropathy that the injury mechanism would have "potentially produced a small shoulder strain but would not have produced this degree of injury and the amount of dysfunction." Postoperatively Employee attended physical therapy.

Employee was seen by Dr. Solman for an Independent Medical Evaluation on April 4, 2018. Dr. Solman disagreed with Dr. Mall's causation opinion and opined that Employee had sustained an acute on chronic rotator cuff tear. He stated, "It is my opinion that he had a chronic tear of the supraspinatus but that the acute tear of the infraspinatus tipped him in the scale of requiring surgical management of the shoulder and, again, I feel that the surgical management of the problem was appropriate and necessary to restore function and pain relief to the right shoulder." He further opined that assuming the history provided by Employee was accurate that, "I would state that, within a reasonable degree of medical certainty, the injury of November 3, 2017 is the prevailing factor in the development of his infraspinatus tear and the need for the procedure that was performed on him by Dr. Mall which again I feel was performed appropriately and timely. I believe thus that the injury was an acute on chronic injury and is compensable under workers' compensation." Because Employee was still attending physical therapy at the time of the evaluation, Dr. Solman opined that he was not at maximum medical improvement.

On May 8, 2018, Dr. Mall opined that Employee had achieved an excellent result and could return to his normal activities. Dr. Mall issued a subsequent report dated May 24, 2018, wherein he opined that Employee had reached maximum medical improvement from his work injury on December 12, 2017 and that his chronic rotator cuff tear was unrelated to his work injury. He assigned 0% permanent partial disability to Employee's work accident. Employee did attempt to return to work for Employer, however when he attempted to operate the equipment the vibrations of the machine made his hand go numb after ten minutes.

Employee settled his claim against Employer-Insurer for 22.5% of the right shoulder at the 232-week level.

On November 6, 1991, Employee injured his right knee while stepping off a backhoe while working for Columbia Construction. He sustained a torn medial meniscus of the right knee, surgically repaired with an arthroscopic lateral retinacular release and partial medial meniscectomy. Dr. Eller, his treating surgeon, rated him as having a 30% permanent partial disability to the right knee. Employee reached a settlement with Employer-Insurer for 32.5% of the right knee. As part of the settlement, the parties stipulated that Employee sustained an accidental injury arising out of and in the course of his employment. Following his release from treatment, he continued to experience weakness in the right knee. Employee testified that his right knee gives out on him if he puts too much strain on it. Walking a ½ mile or more bothers his right knee.

Page 6

**Injury No. 17-088357**

In June of 1995, he injured his left knee while working for Columbia Construction. He was taking off a cement form and the edge of the form hit his knee. He was diagnosed with a bucket handle tear of the medial meniscus that was repaired arthroscopically. Dr. Eller rated him as having a 15% permanent partial disability to the left knee. Employee settled with Employer-Insurer for 17.5% permanent partial disability of the left knee. As part of the settlement, the parties stipulated Employee sustained an accidental injury arising out of and in the course of his employment. Employee testified that the surgery to his left knee resulted in further issues in his right knee. However, he testified at his deposition that once his left knee recuperated it did not cause him any problems at work. He denied any weakness, pain, or stiffness in his left knee while working. He also testified at trial that his left knee did not cause him problems at work and he did not experience weakness in his left knee like he did in his right knee. He testified that his right knee is much worse than his left knee.

On November 10, 2008, Employee fell 10-12 feet down a rock slope at work and sustained bilateral calcaneal fractures. He underwent non-operative treatment and after that failed he underwent surgery on the right foot on April 7, 2009. Dr. Gary Schmidt performed a right subtalar arthrodesis and repair of the right subluxing peroneal tendons. On June 19, 2009, Dr. Schmidt operated on Employee's left foot for traumatic arthropathy of the ankle. Post-operatively Employee developed some wound problems that cleared with conservative treatment. He was placed at maximum medical improvement by Dr. Schmidt on January 11, 2010, and was released to full duty without restriction. Dr. Schmidt rated him as having an 8% permanent partial disability at the 155-week level of each foot.

Employee returned to his regular job as an equipment operator, which required him to use foot pedals and this aggravated his left heel pain. He also experienced pain standing on ladder rungs and walking on uneven hard surfaces. He took prescription medications for pain and tried over-the-counter anti-inflammatories and orthotics. His symptoms did not improve and he was sent to Dr. Graham, a pain management doctor, for evaluation of complaints to his left heel and right ankle. Dr. Graham started him on a pain management regimen that included Neurontin and Ultram and referred him to Dr. David Peeples to check for nerve entrapment.

Employee saw Dr. Peeples, a neurologist, for electro diagnostic evaluation of his ongoing left heel pain. He underwent a nerve conduction study that was negative for entrapment neuropathy, however it was noted that his lateral foot pain was consistent with direct trauma to the left lateral plantar sensory nerve. Following this evaluation, Dr. Graham increased Employee's Neurontin and Ultram for pain control and referred him to an orthopedic surgeon for further evaluation.

Employee was subsequently evaluated by Dr. John Krause on June 7, 2010, for a second opinion. Dr. Krause opined that Employee had a non-union of his previous fusion of the left subtalar joint. Over the next 3 years, Employee underwent the following surgical procedures:

- July 15, 2010 - a revision of left subtalar arthrodesis for non-union with bone graft, hardware removal.

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**Injury No. 17-088357**

- December 2, 2010 - surgery to right leg for plantar displacement and osteotomy, debridement with lengthening, and hardware removal.

- February 24, 2011 - irrigation and debridement of the left foot including bone, deep hardware removal of the left calcaneus due to erythema and abscess formation;

- November 1, 2011 - irrigation and debridement and wound closure of left foot by Dr. Krause due to persistent drainage from lateral wound on left foot;

- February 28, 2012 - surgery for irrigation and debridement of left foot and left ankle. Due to deep wound infection of left hind foot and septic arthritis of the left ankle;

- April 30, 2021 - debridement and complex repair of the left foot wound with insulation of graft jacket after diagnosis of MRSA infection;

- September 20, 2012 - irrigation and debridement of left lateral foot and sinus tarsi with wound vac placed in middle of left hind foot due to deep infection;

- March 7, 2013 - right ankle arthroscopy with extensive debridement, open right dorsal talar exostectomy due to ankle impingement and development of osteophytes and pain in right ankle.

Dr. Krause released him at maximum medical improvement from an orthopedic standpoint on August 28, 2013, and provided a rating of 20% of the left ankle at the 155-week level and 16% of the right ankle at the 155-week level as a result of the 11/10/2008 work injury.

In September of 2013, Employee came under the care of pain management specialist, Dr. Cleaver, for chronic ankle pain. Dr. Cleaver opined that the prevailing factor for his current symptoms and need for further diagnostic workup was the work injury.

By the time Employee completed his medical treatment for his bilateral foot/ankle injury, he had missed approximately 4 1/2 to 5 years of work. To his credit, he returned to work for Strack Stone after he completed his medical treatment at the same rate of pay. He performed the same job duties he had prior to his injury, however he did so with difficulty. He had to climb 7 rungs up a ladder on the crusher every day, but did so very carefully. He tried to avoid walking on uneven ground around the quarry. As a result of his injury, Employee's right foot does not pivot normally and this made it difficult for him to operate heavy equipment. He testified that he had to be precise when operating a track hoe with his feet. He testified that he was able to continue operating a front end loader with his right arm as it was operated by two knobs. He was unable to operate the track hoe with his feet. He had to wear steel toe boots and high tops for stability. He continued to take pain medications. At the end of the day his feet would swell. He used a foot sauna at home to relax his feet and reduce swelling. He also elevated his feet in a recliner. Initially he worked the same hours for Strack Stone, but his body could not handle it and eventually his employer let him leave after 8 or 9 hours instead of the 10-11 hours he used to work. Before he injured his bilateral heels, he performed some side jobs such as dirt work, but after his injury, he could no longer do so because of pain.

Page 8

**Injury No. 17-088357**

Employee settled his claim against Employer-Insurer for 50% of the right leg at the 160-week level, 40% of the left leg at the 160-week level and 5% of the body as a whole. As part of the settlement, the parties stipulated that Employee sustained an accidental injury arising out of and in the course of his employment that resulted in injury. Employer-Insurer also paid an additional $15,000.00 for future medical needs. Employee also settled his claim against the Second Injury Fund for a primary disability of 50% of the right leg at the 160-week level, 40% of the left leg at the 160-week level, 5% of the body as a whole and a preexisting disability of 32.5% of the right knee at the 160-week level and 17.5% of the left knee at the 160-week level plus a load factor.

In addition to the difficulties outlined above, Employee testified he has had trouble lifting items with his right arm. Employee was observed at hearing to have difficulty lifting his right arm above chest level. He can lift his right arm straight out in front of him but cannot hold more than three pounds while doing so. He cannot lift a gallon of milk and instead has to hold it at his side. He can mow his ½-acre yard with a riding mower that has a right foot control. He has to pick his foot up and use his whole leg with his heel on top of the pedal to operate it because of loss of flexion in his foot due to his prior work injury. He can mow for approximately 20 minutes at a time. He cannot use the steering wheel with his right hand because the vibration makes his right arm go numb. He drives a vehicle with his left hand. He no longer goes camping because he cannot set up a tent using his right shoulder.

He testified that his right foot is worse than his left foot. The right foot does not bend normally. He walks awkwardly due to hardware in his right foot. He testified he cannot put any pressure on his toes. If he does, he will fall down. He has pain every day and takes 10 mg hydrocodone for his heel pain. The hydrocodone also helps with his right shoulder pain. He can only stand for approximately 10-15 minutes due to instability between his foot and knee injuries. His right knee will start shaking. He must use a handrail to go up and down steps, otherwise he may fall. He has difficulty going up and down inclines. He cannot walk on uneven ground because it throws off his balance. He has a limp due to his right lower extremity problems. He cannot run. Before he injured his bilateral heels, he used to bow, deer, and squirrel hunt and go fishing. He can no longer fish on a bank because he cannot stand on angled ground.

Employee testified that on an average day he stays home or may visit his granddaughters in Scott City. He is unable to do chores around his house. He had to rely upon his son to fix a leak in his roof. He spends time with his dog in the backyard and watches a lot of television. He is able to meet his daily needs of showering and dressing. He no longer buys in bulk at the store because he cannot carry the items. If he buys a pack of water bottles, he must carry it with his left arm. He testified to difficulty sitting for more than an hour or two because he gets Charley horses in both legs.

Employee testified he did not believe he was hirable as a crane operator because certification is required and he would be a liability to people on the ground. He explained that he ran a crane while working for Columbia Construction, but was not proficient at it and did not feel

**Injury No. 17-088357**

comfortable doing so. He explained that operating a crane is different than operating other equipment because one has to keep his arm steady and he is unable to do so. He struggles with using technology and cannot retain information when his children try to teach him to use his phone or computer. He does not think he is able to return to employment and believes that his shoulder injury "finished him off." He testified that he used his arms to compensate for the injuries to his feet. But, after his right shoulder injury, he could no longer meet the three points of contract rule while operating equipment. Employee was approved for social security disability benefits in 2018.

Clint Obermann, Employee's son, is 31 years old and works at Havco as an operator. He sees his dad every week. After Employee completed treatment for his bilateral heel/ankle injury, he could tell his dad was in pain because he observed him wince, limp, and show other visible signs of pain. Since that injury, he has helped his dad with household chores and occasionally with grocery shopping. After 2013, he saw his dad when he would get off of work and he appeared to be in a "pretty rough state." He gifted him the "hot tub" for his feet to help with cramping. He testified that before his heel injuries, he was much more active and able to do more activities such as fishing and walking around the lake. Now he does not do much because his legs cramp up.

Mr. Obermann testified that after his dad's shoulder injury, he did not engage in much activity. He testified that he is unable to perform activities that involve full body movement and no longer shoots guns or plays pool. He observed that Employee appears overexerted with little activity.

Employee submitted the report and testimony of Dr. Shawn Berkin in support of his claim. Dr. Berkin examined Employee on July 11, 2018, for purposes of an independent medical evaluation. Dr. Berkin reviewed Employee's treatment records and prior stipulations for settlement. He performed a physical exam and testified that with regard to the right shoulder he found anterior shoulder tenderness, slight crepitus to passive circumduction, positive signs for impingement and a painful O'Brien's test. He noted some loss of range of motion of the right shoulder and some diminished grip strength in the right hand. With regard to the right ankle, he noted swelling and tenderness and a loss of sensation over the anterior surface of the right foot. Regarding the left foot, there was tenderness. Dr. Berkin noted pain to both feet when Employee elevated on his toes. Employee was unable to squat. Dr. Berkin noted loss of range of motion on both ankles. Examination of the left knee failed to reveal any tenderness, swelling or inflammation. There was no sign of instability. Examination of the right knee was positive for patellofemoral crepitus and pain, but there was no sign of instability. He demonstrated normal extension and 140 degrees of flexion (150 degrees is normal) in both knees.

Dr. Berkin testified that Employee described his limited motion to his arm and reported that his right shoulder pain was worse when lifting his arm above waist level and that he could

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**Injury No. 17-088357**

not lift more than five pounds. After taking a history and performing a physical examination, he opined that the primary work accident was the prevailing factor in causing an acute right shoulder sprain with acute tear of the infraspinatus tendon with aggravation of a chronic tear of the supraspinatus tendon associated with AC joint osteoarthritis, synovitis, bicipital tendonitis, and shoulder impingement. He opined Employee sustained 32.5% permanent partial disability of the right shoulder as a result of his work accident. He further opined that Employee had a 25% permanent partial disability of the shoulder due to a pre-existing rotator cuff tear, AC joint arthritis, synovitis, and bicipital tendonitis.

Dr. Berkin explained in his report,

> The industrial accident that occurred on 11/03/2017 when Mr. Obermann was using a five-foot long rock bar to break up rock and felt a pop to his right shoulder followed by the progressive onset of right shoulder pain was the prevailing factor in causing the acute sprain to the right shoulder with an acute tear of the infraspinatus tendon with aggravation of a chronic tear of the supraspinatus tendon associated with AC joint osteoarthritis, synovitis, bicipital tendonitis, and shoulder impingement. Although there were chronic changes of the supraspinatus noted on the MRI scan of the shoulder and at the time of surgery, I feel the infraspinatus tear was acute and was successfully repaired. Even though the supraspinatus tear develops chronically over time his shoulder was asymptomatic prior to his injury and he was actively functioning and able to work as a laborer. Even if the injury did not materially alter the structural integrity of the shoulder, I feel it was the prevailing factor in causing him to require surgery for treatment of the supraspinatus tear within four to five weeks from the time of his injury. If based on the mechanism of his injury there was any expectation that he had sustained a strained injury on top of a chronic rotator cuff process, a more conservative approach would have more likely been the first consideration to observe for resolution of his symptoms after 4 to 6 weeks and a return to his pre-injury status of an symptomatic shoulder.

Dr. Berkin testified that one can have supraspinatus tearing without symptoms and in his opinion the work injury aggravated Employee's prior tear, but also caused an acute tear of his infraspinatus. Dr. Berkin testified that he agreed with Dr. Solman's causation opinion.

Dr. Berkin opined Employee had the following preexisting disabilities that were a hindrance or obstacle to Employee's employment or reemployment:

- 1991 right knee injury: 32.5% permanent partial disability

- 1995 left knee injury: 17.5% permanent partial disability

- 2008 right ankle injury: 50% permanent partial disability

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Employee: Larry Obermann

Injury No. 17-088357

- 2008 left ankle injury: 40% permanent partial disability

Dr. Berkin recommended that Employee not lift more than 15 to 20 pounds with his right arm on an occasional basis and lift only 10 pounds on a frequent basis. He recommended Employee avoid lifting with his right arm extended away from his body and avoid lifting or working with his arm above shoulder level. He further recommended that due to prior injuries to his knees and lower legs, Employee avoid squatting, kneeling, stooping, turning and twisting and avoid walking for long distances and standing for long periods of time.

Dr. Berkin further opined as follows:

> I feel there exists a synergistic effect between his pre-existing disabilities and the disability resulting from the November 2017 injury involving his right shoulder that exceeds the sum of the disabilities assigned to each of his clinical conditions. This synergistic effect is based on the additional limitations imposed by the combination of his disabilities that are over and above the limitations and loss of function due to each of his individual disabilities. Despite the disabilities that existed prior to the November 2017 injury, Mr. Obermann's symptoms improved to the extent that he was able to return to work and be gainfully employed as a laborer. Based on his age, limited education, lack of transferable job skills, and the limitations imposed by his disabilities, Mr. Obermann would not be considered to be an attractive or viable job candidate to any prospective employer. An employer would not reasonably be expected to accommodate his limitations in a full-time working environment. I recommend Mr. Obermann be referred to a vocational rehabilitation expert to determine if based on his limitations there are any jobs available for which he would be considered qualified. If it were to be determined that based on his limitations, job skills, or whether he would be considered a candidate for vocational rehabilitation, it were to be determined there were no jobs available for which he would be considered qualified, I would consider Mr. Obermann to be unable to compete in the open labor market and would consider him to be permanently and totally disabled to work.

After reviewing additional medical records, Dr. Berkin issued a supplemental report dated March 11, 2019, and confirmed that his opinions remained the same.

**Independent Medical Evaluation of Dr. David Volarich**

Employee submitted the report of Dr. David Volarich in support of his claim. Dr. Volarich evaluated Employee on September 25, 2020. His report is directed to the attention of the Second Injury Fund attorney. Dr. Volarich stated that after reviewing Employee's medical

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Employee: Larry Obermann

Injury No. 17-088357

records, discussing his history and complaints with him and performing a physical examination, he agreed with the impressions, opinions and ratings of Dr. Berkin, including his opinion that Employee is permanently and totally disabled due to his primary work accident in combination with his preexisting conditions.

Employee submitted the vocational evaluation and testimony of Susan Shea in support of his claim. Ms. Shea reviewed Employee's records and took a history from him. She administered the WRAT III Test and noted that Employee scored at the 6th grade level in spelling and reading and the 8th grade level in math. Ms. Shea concluded that Employee was unemployable in the open labor market and she noted the following factors in support of her opinion:

1. Mr. Obermann has a pain level which requires narcotic medication. Even with this medication, he reports being in constant pain.
2. Mr. Obermann could not return to any past work.
3. Mr. Obermann has been determined as permanently and totally disabled by the Social Security Administration.
4. Mr. Obermann has a medical history which would be a deterrent to any employer.
5. Mr. Obermann is at an age where it is highly unlikely that any employer or agency would invest in retraining or retraining him.
6. Mr. Obermann's functional capacity prohibits any work as generally performed in the national labor market.
7. Mr. Obermann's physical issues are exacerbated by anxiety. In summary, Mr. Obermann is a 61 year old man with little use of his right upper extremity and chronic pain in both lower extremities. He has an extensive medical history. He takes narcotic medication and suffers from anxiety. It is highly unlikely that any potential employer would consider hiring Mr. Obermann.

Ms. Shea testified that the use of narcotics, such as the Norco Employee was taking for his bilateral ankle pain, often disqualifies an individual from operating heavy machinery because it can cause drowsiness, affect concentration, and cause one to make mistakes. She testified that Employee told her he started taking the medication because he experienced increased pain with standing, walking, flexion, extension and lifting—all activities necessary to perform his job. She testified that this was a hindrance or obstacle to his employment or reemployment. She testified that his inability to stand more than ten minutes would inhibit him from performing his past work. She testified that because Employee missed five years of work while treating for his bilateral foot injuries, this could be seen by potential employers as a hindrance to employment and deter them from hiring him. She agreed that his described difficulty of pushing pedals with his feet to operate heavy machinery would be a hindrance to employment. She testified that symptoms associated with his anxiety would also be a hindrance or obstacle to employment.

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Employee: Larry Obermann

Injury No. 17-088357

When asked if she thought Employee was disabled from the right arm injury alone or a combination of his issues, she testified she believed it was due to the combination of his right arm injury and past injuries or conditions. She testified that factor 6 listed above would make him unemployable and she referred to the restrictions outlined by Dr. Berkin and Dr. Mall. She noted that the two-pound lifting restriction by Dr. Mall would by itself eliminate him from the work force.¹ She testified that Dr. Berkin's restriction of lifting no more than ten pounds on a frequent basis would allow him to perform sedentary work. She testified that his functional capacity was based upon the limitations from his shoulder injury and his prior injury to his feet. She testified that:

His functional capacity would put him at, if anything, a sedentary level of work, and at his age he would be considered disabled with the combination of his age, his inability to work at even the sedentary level and taking the narcotic, and the chronic pain and so forth.

The Second Injury Fund submitted the report and testimony of Robert Hosutt in support of their defense. Mr. Hosutt performed an extensive records review of Employee's treatment records and relied upon the vocational testing administered by Susan Shea. He did not meet with Employee. He concluded that Employee had sufficient transferrable skills and abilities to "consider a number of employment opportunities available in the general labor market." Mr. Hosutt noted that Employee had no physician-imposed restrictions apart from those assigned by Dr. Berkin. He opined that based upon Dr. Berkin's restrictions, Employee would be able to perform at light and even some work into a medium level of physical activity. Mr. Hosutt performed a transferrable skills analysis and an OASYS comparison and was able to identify a number of jobs that he opined Employee would be reasonably capable of obtaining and maintaining within the light and sedentary work levels. Mr. Hosutt also performed a labor market survey that identified employment opportunities in the vicinity of Employee's home in Cape Girardeau. As a result, Mr. Hosutt concluded that given Employee's physician-imposed restrictions and limitations, he was employable in the open labor market.

1. **Liability of Employer-Insurer for permanent partial versus permanent total disability**

Although Employer-Insurer previously settled their liability for the primary injury in this case, the Second Injury Fund is not bound by the percentage of disability set forth in the stipulation for settlement and therefore asks this Court to make an independent determination regarding Employer's liability prior to determining the Second Injury Fund's liability for

---

¹ It is important to note that Dr. Mall did not recommend any permanent physical restrictions for Employee. The two-pound lifting restriction referenced by Susan Shea was a temporary physical restriction recommended while Employee was undergoing treatment. Dr. Mall released Employee to return to his normal activities.

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Employee: Larry Obermann

Injury No. 17-088357

permanent and total disability. The Second Injury Fund asserts that Employee is permanently and totally disabled due to the last injury alone.

Section 287.020.6 RSMo provides as follows:

> The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. *Kowalski v M-G Metals and Sales, Inc.,* 631 S.W.2d 919, 922 (Mo.App.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. *Reiner v Treasurer of the State of Missouri,* 837 S.W.2d 363, 367 (Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". *Brown v Treasurer of the State of Missouri,* 795 S.W.2d 479, 483 (Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. *Id.* The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. *Reiner* at 365. See also *Thornton v Haas Bakery,* 858 S.W.2d 831, 834 (Mo.App.1993).

The question of whether a claimant is totally and permanently disabled is "not exclusively a medical question" and the Commission "need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence." *Lewis v. Kansas Univ. Med. Ctr.,* 356 S.W.3d 796, 802 (Mo.App.W.D.2011). The Commission may even rely on testimony from the claimant himself. See *Pavia v. Smitty's Supermarket,* 118 S.W.3d 228, 234 (Mo.App.S.D.2003). "The testimony of lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." *Id.*

Permanent partial disability is defined by Section 287.190.6(1) as "a disability that is permanent in nature and partial in degree."

After considering all the evidence, including the credible testimony of Employee and the credible opinions of Dr. Solman and Dr. Berkin, I find that the accident of November 3, 2017, was the prevailing factor in causing the acute sprain to the right shoulder with an acute tear of the infraspinatus tendon with aggravation of a preexisting chronic tear of the supraspinatus tendon associated with AC joint osteoarthritis, synovitis, bicipital tendonitis, and shoulder impingement. The only doctors to provide opinions regarding the extent of Employee's disability from the primary injury are Dr. Mall and Dr. Berkin. Dr. Mall provided a rating of 0%, but only considered Employee's diagnosis of a strain to be causally related to the accident. Dr. Berkin

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Employee: Larry Obermann

Injury No. 17-088357

opined Employee sustained 32.5% permanent partial disability as a result of the work accident. There are no medical opinions that Employee's last injury resulted in permanent total disability. I further find that neither of the vocational opinions support a finding of permanent total disability as a result of the last injury in isolation. After consideration of all the evidence, I find that as a result of the November 3, 2017 accident, Employee sustained a permanent partial disability of 22.5% of the right shoulder at the 232-week level.

1. Liability of the Second Injury Fund for permanent total disability;

"The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." Section 287.808 RSMo.

Employee's primary injury occurred after January 1, 2014; therefore, his burden of proof for a compensable claim against the Second Injury Fund is set forth in Section 287.220.3 RSMo, Supp. 2013. See *Cosby v. Treasurer of the State of Mo as Custodian of the Second Injury Fund*, 579 S.W.3d 202, (Mo. banc, June 25, 2019.) The test for finding the Second Injury Fund liable for permanent total disability under Section 287.220.3 RSMo, is as follows:

1. All claims against the second injury fund for injuries occurring after January 1, 2014 and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014 shall be compensated as provided in this subsection.

1. No claims for permanent partial disability occurring after the effective date of this section shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

a. 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

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**Injury No. 17-088357**

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;

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work related injury considered alone and of itself.

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250.

Section 287.800 RSMo mandates that that the provisions of Chapter 287 be strictly construed.

After consideration of Employee's credible testimony, my review of the medical records, the prior stipulations for settlement, and the opinions of Dr. Berkin, I find Employee has the following medically documented preexisting disabilities that were a direct result of a compensable injury as defined in section 287.020:

- 1991 right knee injury: 32.5% permanent partial disability at the 160-week level (52 weeks)

- 1995 left knee injury: 17.5% permanent partial disability at the 160-week level (28 weeks)

- 2008 right ankle injury: 50% permanent partial disability at the 160-week level (80 weeks)

- 2008 left ankle injury: 40% permanent partial disability at the 160-week level (64 weeks)

I further find, after considering the credible opinions of Dr. Solman and Dr. Berkin that Employee has the following medically documented preexisting disability that directly and significantly aggravates or accelerates the subsequent November 3, 2017 work-related injury:

- Chronic rotator cuff tear, AC joint arthritis, synovitis, and bicipital tendonitis: 22.5% permanent partial disability right shoulder (52.2 weeks)

Although Employee's preexisting disability to his right shoulder was asymptomatic, I find that the medical evidence supports that this preexisting disability was a hindrance and/or obstacle to Employee's employment or reemployment in that it made him more susceptible to further injury as substantiated by Employee's November 3, 2017 right shoulder injury and need for surgical intervention. "[A]n employee who suffers a preexisting disability before his primary injury can meet the [requirement of Section 287.220.2(2)(a)] regardless of whether he knew (or it had been determined) before suffering his primary injury that his preexisting disability equaled 50 weeks PPD." *Treasurer of State v. Parker*, 622 S.W.3d 178 182 (Mo. 2021).

I further find that Employee's 1991 right knee injury, 2008 right and left ankle injuries, and preexisting right shoulder disability meet the 50 week minimum set forth in Section

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Employee: Larry Obermann

Injury No. 17-088357

287.220.3(2)(a)a RSMo. I find Employee's 1995 left knee injury does not meet the 50-week minimum threshold requirement.

I find credible the testimony of Dr. Berkin and Susan Shea. Dr. Berkin opined that if a vocational expert were unable to identify employment for Employee that he would consider him permanently and totally disabled. Susan Shea testified as to her opinion that Employee was permanently and totally disabled due to a combination of his November 3, 2017 right shoulder injury and preexisting disabilities. Neither expert specifically addressed whether they would consider Employee permanently and totally disabled excluding his 1995 left knee injury. Is this fatal to Employee's claim as suggested by the Second Injury Fund? Section 287.220.3(2)(b) specifies that to find the Second Injury Fund liable for permanent total disability, the primary work injury must combine "with the preexisting disability as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph." According to Parker, "[b]y 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." Id. The Court in Parker also noted that "[t]he existence of non-qualifying disabilities do not count against (or for) the claimant in evaluating whether he meets the second threshold condition." Id.

For the following reasons, I find Employee met his burden of proof that the primary work injury combined with his qualifying preexisting disabilities to result in permanent total disability. Employee testified that his left knee did not cause him problems at work after he was released from treatment. I find his testimony credible. Further, his treating doctor did not impose any permanent physical restrictions on him following his left knee injury and there is no evidence he had any physical limitations attributable to his left knee injury. Susan Shea did not mention the 1995 left knee injury in her report or deposition testimony and focused primarily on Employee's right shoulder and bilateral heel fractures/ankle injuries. Certainly, Employee's bilateral heel/ankle injuries were far more serious and disabling than the surgically repaired medial meniscus tear to his left knee. Dr. Berkin's physical examination of Employee's left knee did not reveal any tenderness, swelling, pain, instability or significant loss of range of motion. While the restrictions outlined by Dr. Berkin to Employee's lower extremities encompassed both his knees and feet, a reasonable inference is made that excluding the 1995 left knee injury would not impact these restrictions in light of the severity of the injuries to Employee's bilateral heels/ankles and right knee. Susan Shea's opinion regarding Employee's permanent total disability was based in large part on Employee's residual functional capacity. I find the credible evidence supports the conclusion that Employee's 1995 left knee injury did not negatively impact his residual functional capacity to any significant degree, and as such I find that excluding Employee's 1995 non-qualifying left knee injury from the analysis does not impact the ultimate conclusions regarding his employability. To conclude otherwise would lead to a nonsensical result in light of Employee's qualifying preexisting disabilities of 50% of the right ankle, 40% of the left ankle, 32.5% of the right knee and 22.5% of the right shoulder.

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Employee: Larry Obermann

Injury No. 17-088357

This Court also acknowledges that Employee's prior settlement for the 2008 bilateral lower extremity injury was based on permanent partial disability at the 160-week level of each leg. In *Parker*, the Court held that "[a]lthough section 287.220.3(2)(b) refers to the preexisting disability in the singular form - 'when combined with the preexisting disability' - section 1.030 instructs that the singular form should be interpreted to include the plural form. (emphasis added) *Id.* In footnote 4, the Court points out:

> Although this Court held in *Treasurer v. Witte*, 414 S.W.3d 455, 463-64 (Mo. banc 2013), that claimants could not stack multiple disabilities to meet the threshold for Fund liability, *Witte* predates the 2013 amendments and, therefore, no longer applies.

Applying the footnote to the case at hand, Employee's 1995 left knee disability and 2008 left lower extremity disability assessed at the 160-week level could be stacked to achieve a 57.5% disability at the 160-week level for a total of 92 weeks, exceeding the 50-week minimum threshold. I do not find that stacking is necessary in this case to meet Employee's burden of proof for the reasons set forth above.

The Second Injury Fund also argues that Susan Shea's inclusion of Employee's anxiety, a non-qualifying condition under the statute, in her analysis of Employee's employability, requires this Court to deny Employee's claim. I am not persuaded by this argument. Although Ms. Shea considered Employee's anxiety in formulating her opinions, she testified at her deposition that Employee's residual functional capacity alone (based on his physical restrictions) would render him permanently and totally disabled. I do not find her inclusion of Employee's anxiety necessary to her overall conclusion in light of Employee's other qualifying preexisting disabilities.

I find the opinions and testimony of Dr. Berkin and Susan Shea to be credible and to be more credible and persuasive that the opinions and testimony of Robert Hosutt. I find that Employee sustained a compensable injury to his right shoulder on November 3, 2017, that when combined with his preexisting 1991 right knee injury, 2008 right ankle injury, and 2008 left ankle injury, and preexisting chronic rotator cuff tear, AC joint arthritis, synovitis, and bicipital tendonitis resulted in permanent total disability. I find the Second Injury Fund is liable to Employee for permanent total disability benefits.

1. The date of maximum medical improvement.

Section 287.010 RSMo 2017 defines maximum medical improvement as "the point at which the injured employee's medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty."

Dr. Mall released Employee from care following his right shoulder surgery on May 8, 2018. No further treatment recommendations were made to improve or further stabilize Employee's right shoulder condition following this date. Following May 8, 2018, Employee did

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Employee: Larry Obermann

Injury No. 17-088357

not undergo further care for his right shoulder, apart from medications for pain control and maintenance. Therefore, I find Employee reached maximum medical improvement on May 8, 2018.

**CONCLUSION:**

Employee reached MMI on May 8, 2018. Employer-Insurer's liability for the 22.5% permanent partial disability to the employee's right shoulder attributable to the November 3, 2017 accident equals 52.2 weeks of compensation. The permanent partial disability benefits, if paid by the week, would therefore have commenced on May 9, 2018, and would have continued for 52.2 weeks through May 9, 2019. Those permanent partial disability benefits would have been payable at the rate of $483.48 per week.

Employee's rate of compensation for permanent total disability is 736.75, which is 253.27 higher than the permanent partial disability rate. The Second Injury Fund is therefore responsible for paying the difference between the permanent total disability rate and the permanent partial disability rate starting on May 9, 2018, and ending on May 9, 2019 (last day attributable to the 52.2 weeks of permanent partial disability benefits); and thereafter, commencing on May 10, 2019, the Second Injury Fund is responsible for paying the full permanent total disability benefits at the rate of $736.75 per week.

The Second Injury Fund is therefore directed to pay to Employee the sum of $253.27 per week commencing on May 9, 2018, and ending on May 9, 2019. Thereafter, commencing on May 10, 2019, the Second Injury Fund is directed to pay to the employee the sum of $736.75 per week for permanent total disability; and said weekly payments shall be payable for the lifetime of the employee pursuant to Section 287.200.1 RSMo, unless such payments are suspended during a time when the employee is restored to his regular job or its equivalent as provided in Section 287.200.3 RSMo.

**ATTORNEY'S FEE:**

Chris Weiss, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this 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:**

Interest on all sums awarded hereunder shall be paid as provided by law.

Page 20

Made by:

I certify that on 12-30-21,

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By $\qquad n p$


Digitally signed by Amy

L. Young

Date: 2021.12.22

10:07:18-06'00'

Amy L. Young

Administrative Law Judge

Division of Workers' Compensation