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.

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[^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 cre