March v. Treasurer of Mo.

• Court: Missouri Supreme Court
• Writing for the Court: GEORGE W. DRAPER III, Judge
• Citation: March v. Treasurer of Mo., 649 S.W.3d 293 (Mo. 2022)
• Decision Date: 26 July 2022
• Docket Number: SC 99381
• Parties: Robert MARCH, Appellant, v. TREASURER OF the STATE of Missouri – Custodian of the Second Injury Fund, Respondent.

649 S.W.3d 293

Robert MARCH, Appellant,

v.TREASURER OF the STATE of Missouri – Custodian of the Second Injury Fund, Respondent.

No. SC 99381

Supreme Court of Missouri, en banc.

Opinion issued July 26, 2022

March was represented by Jerry Kentner of Boyd Kentner Thomas & Parrish LLC in Sedalia, (660) 829-1118.

The treasurer was represented by Keyla S. Rhoades of the attorney general's office in Cape Girardeau, (573) 751-3321.

GEORGE W. DRAPER III, Judge

Robert March (hereinafter, "Claimant") appeals from the decision of the Labor and Industrial Relations Commission (hereinafter, "the commission") denying his claim for permanent total disability (hereinafter, "PTD") benefits from the Second Injury Fund (hereinafter, "the Fund"). This Court holds the commission appropriately found it was not persuaded the combination of his preexisting disabilities and his primary injuries entitled him to PTD benefits because it was "equally likely" his preexisting disabilities alone rendered him permanently and totally disabled. Further, the commission did not give the Fund the benefit of the doubt in its determination Claimant's evidence stood in equipoise—even in the absence of any impeaching evidence—because Claimant bears the burden of proving it was more likely true than not true that he was permanently and totally disabled due to the combination of his preexisting disabilities and his primary injuries. The commission's decision is affirmed.¹

Factual and Procedural Background

Claimant is a sixty-year old high school graduate who spent fifteen years working as a meat cutter using a vibrating knife and pushing 1,800-pound racks of meat. During this employment, Claimant had surgery to repair a tear to his left rotator cuff, an injury to his right finger, and carpal tunnel. Claimant missed work due to these injuries but returned to work without restrictions.

In 1996, Claimant began working for Milbank Manufacturing Company (hereinafter, "Employer"). Claimant fabricated metal electrical boxes via metal inert gas welding and stick welding followed by sanding with a twenty-pound grinder. Claimant fabricated between 300 and 400 boxes per day, with the boxes ranging in weight from 10 to 500 pounds.

Before Claimant suffered the primary injuries underlying his workers’ compensation claim, he endured other health issues, including: morbid obesity, thyroid issues, hypothyroidism, hypertension, a transient ischemic attack, atrial fibrillation, asthma, a second left rotator cuff tear, and a left leg laceration. Claimant's left leg injury, inflicted during a hunting trip, eventually required treatment for stasis ulcers, affected his ability to stand, and created blood flow issues. The most significant of Claimant's preexisting medical conditions was his bilateral lower extremity condition for which he was diagnosed in 2005 with edema and pain radiating down both legs into his ankles, secondary to morbid obesity, and venous varicosities associated with obesity.

In 2015, Employer changed its electrical box fabrication method, requiring Claimant to perform his job duties in a standing position rather than primarily in a seated position. Claimant explained working in a standing position required him to reach farther out, extend his arms above his shoulders, and to hold the boxes down. Claimant began experiencing numbness, tingling, and cramping in both hands, which he attributed to using a buffer and sander. Claimant also experienced bilateral shooting pains in his arms, shoulders, and neck.

In April 2015, Employer referred Claimant to Dr. Thomas Winston (hereinafter, "Dr. Winston") for treatment. Dr. Winston diagnosed Claimant with carpal tunnel syndrome in his right hand. Dr. Winston noted Claimant's complaint he had leg pain and venous stasis disease, which Dr. Winston stated were aggravated by standing but also "probably due to his weight and situation other than work." Dr. Winston recommended Claimant be allowed to work from a seated position. Claimant was given an injection in his right shoulder and released to return to work in May 2015. The parties stipulated Claimant achieved maximum medical improvement (hereinafter, "MMI") on May 15, 2015. Claimant subsequently sought and received an accommodation from Employer to allow him to sit for two-hour intervals, followed by two hours of standing, during his shifts.

Claimant continued to experience bilateral leg pain, aching, swelling, edema, and fluid leakage that he explained was due to being unable to sit to perform his work. Claimant continued to receive treatment from his physicians for these conditions. Claimant's primary physician noted Claimant could not perform his job duties without special scheduling due to his leg conditions and instructed Claimant to not stand or walk for more than four hours per day and to elevate his legs. Dr. Michael Waldschmidt (hereinafter, "Dr. Waldschmidt"), a vascular specialist, began treating Claimant. Dr. Waldschmidt performed a bilateral saphenous vein endovascular laser ablation for severe bilateral lower extremity venous insufficiency to relieve Claimant's chronic ulceration difficulties. Dr. Waldschmidt recommended Claimant be restricted to twenty minutes of sitting or standing consecutively, avoid standing or sitting for more than one hour at a time, and keep his ankles elevated above his heart. Dr. Waldschmidt stated Claimant's "problem is obesity weight control," which "will be the final answer to his lower extremity problems."

Claimant left his employment with Employer on April 15, 2016. Thereafter, Claimant attempted to work as a security guard, but left that employment after two shifts because it required too much walking.

Claimant filed a workers’ compensation claim against Employer.² In his November 2015 claim, Claimant alleged his primary work-related injuries were "bilateral lower extremities – body as a whole." In his June 2016 first amended claim, Claimant sought PTD benefits from Employer. In his December 2016 second amended claim, Claimant alleged his primary work-related injuries were "bilateral lower extremities and bilateral upper extremities – body as a whole." In his third amended claim filed in December 2017, Claimant alleged his primary work-related injuries were "bilateral upper extremities" and, for the first time, asserted a claim against the Fund for PTD benefits due to a prior injury to his bilateral lower extremities. Claimant settled his claim with Employer for the primary bilateral upper extremity injuries and proceeded to a hearing against the Fund on his third amended claim for PTD benefits.

At the hearing before the administrative law judge (hereinafter, "ALJ"), Claimant provided live testimony, describing his employment history and responsibilities, his medical conditions dating back to 1988, his job responsibilities, and his injuries sustained while working for Employer. Claimant explained he was able to return to work after the treatment on his arms was completed, but his arms hurt more when he had to work from a standing position. Claimant further stated his leg conditions worsened due to standing. Claimant testified about the impact his injuries had on his quality of life. Claimant explained he must keep his legs elevated above his heart for 90 percent of the day. Claimant cannot sit for less than two hours without having leg problems, and he can stand for only approximately one hour without a problem. Claimant testified about the pain, numbness, and swelling he experiences in his arms and legs. The Fund offered Claimant's deposition into evidence.

Claimant also submitted medical records and two medical reports. Dr. Waldschmidt opined Claimant developed severe lower extremity tissue hypertension from a combination of issues, including saphenous vein valvular incompetence, lymphedema, and extreme pelvic congestion increasing the effect of the previously mentioned two issues. Dr. Waldschmidt found that standing for long hours on the job accelerated Claimant's preexisting condition, necessitating operative treatments.

Dr. William Hopkins (hereinafter, "Dr. Hopkins"), an orthopedic surgeon, performed an independent medical examination of Claimant and reviewed his medical records in rendering his opinion. Dr. Hopkins stated Claimant sustained bilateral upper extremity injuries during the course of his employment, resulting in a 30 percent right and 20 percent left permanent partial disability at the 175-week level. Dr. Hopkins found that due to Claimant's previous carpal tunnel syndrome, 5 percent of his permanent partial disability is preexisting and the remaining 25 percent is due to his April 2015 work-related injury.

With respect to Claimant's bilateral lower extremities, Dr. Hopkins noted Claimant had "a longstanding history of edema" and "an extended history of bilateral venous stasis ... compounded and added to by his weight ...." Dr. Hopkins agreed with Dr. Waldschmidt that "standing for long hours during the course of employment aggravated and necessitated Claimant's need for ablation surgery, and aggravated his preexisting venous stasis in his lower extremities, and increased his problem with ... [E]mployer not allowing him to work in a seated position, part of the day." Dr. Hopkins assigned a total of 45 percent right and 45 percent left lower extremity permanent partial disability at the 160-week level. Due to Claimant's preexisting disabilities prior to April 2015, Dr. Hopkins assessed 15 percent of the total to preexisting medical factors, the remaining 30 percent as the direct and prevailing factor of his cumulative work-related injuries, and applied a 15 percent load factor due to the bilateral nature of the disabilities. Dr. Hopkins noted Claimant would require additional care and treatment for his lower bilateral extremities and was at a high risk of requiring bilateral below-knee amputations.

Dr. Hopkins found Claimant's bilateral lower extremity condition prevented him from engaging in gainful employment,...