Williams v. Treasurer of Mo.

Decision Date30 June 2020
Docket NumberNo. ED 108319,ED 108319
Citation604 S.W.3d 352
Parties Thomas WILLIAMS, Appellant, v. TREASURER OF the STATE of Missouri, as Custodian of the Second Injury Fund, Respondent.
CourtMissouri Court of Appeals

FOR APPELLANT: Dean L. Christianson, 1221 Locust Street, Suite 250, Saint Louis, MO 63103.

FOR RESPONDENT: Mathew Kincade, P.O. Box 861, Saint Louis, MO 63101.

FOR OTHER PARTY: Radford R. Raines, III, 105 Church Street, O'Fallon, MO 63366.

Gary M. Gaertner, Jr., Judge

Introduction

Thomas Williams (Williams) appeals the award of permanent total disability benefits by the Labor and Industrial Relations Commission (Commission), which found that he was entitled to benefits beginning on May 9, 2016. Because we find the Commission ignored uncontradicted and unimpeached evidence that Williams actually reached maximum medical improvement on September 8, 2003, we conclude the starting date of the award is not supported by sufficient evidence and is against the overwhelming weight of the evidence. We modify the Commission's award to begin benefits on September 8, 2003 and affirm the award as modified.

Background

Williams began working for the Hussmann Corporation (Employer) as an assembler in 1992. His job required pumping a pedal with his foot to raise equipment on an assembly line, and then stepping up to and down from a 1.5-foot-tall platform, 65 to 85 times per day. Because of a pre-existing condition in his right foot, Williams pumped the pedal and stepped up and down solely with his left foot. Over time, he developed pain in his left knee.

In 2002, Williams sought treatment for his left knee. He received three knee surgeries, including first a repair of a torn medial meniscus in May of 2002, then a partial knee replacement in August of 2002, and finally a revision of the previous knee replacement in August of 2003. Williams also was seeing a physician for treatment of back pain. On September 8, 2003, the knee surgeon, Dr. Maylack, released Williams from his care. Williams continued to experience pain, but he attempted to return to work with Employer. At that time, Employer notified Williams there was no job available with the restrictions he required. Williams continued to seek treatment for ongoing left knee and low back pain for the next several years.

In 2010, Williams moved to Tennessee. He sought treatment there for pain in his left knee and right ankle, and he received injections and pain medication from doctors there. In 2014, Williams moved to Rolla, Missouri. He continued to seek treatment for pain in his left knee and lower back, receiving injections and pain medication. He underwent surgery for a total knee replacement on April 8, 2016, and the surgeon released him from care on May 9, 2016. Since then, Williams has continued receiving medication to treat pain in his knee and lower back from his primary care physician.

In the summer of 2006, he attempted to return to work, but the physical demands, which included loading drinks onto a golf cart for sale to customers using the golf course, increased pain in his left knee, back, and right foot. He has not worked since that time. Williams sought disability benefits from the Second Injury Fund (SIF). The ALJ heard the following evidence.

Dr. Raymond Cohen offered testimony on behalf of Williams. Dr. Cohen evaluated Williams on two occasions. On June 28, 2004, Dr. Cohen diagnosed Williams with a cumulative trauma/overuse disorder involving the left knee, as well as a lumbar myofascial pain disorder due to a compensatory gait. He found that Williams was permanently disabled as a result of these conditions: 80% permanent partial disability at the left knee and 10% of the body as a whole at the lumbar spine. He further found Williams had a pre-existing 60% permanent partial disability at the right ankle, and that his pre-existing condition combined with the work-related injury created a greater overall disability than their simple sum. Dr. Cohen stated that Williams would need additional medical care, and restricted Williams’ activities as follows: no prolonged standing, stooping, crawling, kneeling, or any other repetitive work involving lower extremities. Dr. Cohen further observed that at some point, Williams would need another knee replacement. He testified at a deposition in 2009 that a typical total knee replacement lasts between seven and fifteen years, and any subsequent knee replacement lasts approximately half the time the prior one lasted. According to Dr. Cohen, partial knee replacements may last longer, but it depends on the type of partial knee replacement.

On September 3, 2015, Dr. Cohen evaluated Williams again, finding Williams had a severely antalgic gait, that he walked with a cane, and that there was a severe loss in range of motion in the lumbar spine with marked tenderness to palpitation. Dr. Cohen assigned the same disability ratings and recommended the same restrictions on physical activity regarding Williams’ low back and left knee. At the time of Dr. Cohen's second evaluation, he noted that Williams intended to undergo surgery for a total left knee replacement. Dr. Cohen did not examine Williams after this final surgery, but he noted again that Williams will likely need additional knee replacements in the future because each replacement lasts for approximately half the time of the prior one.

Dr. Michael Nogalski offered testimony on behalf of Employer at a deposition in 2011, which the SIF submitted as evidence at the hearing before the ALJ. Dr. Nogalski evaluated Williams on February 5, 2004. Though he did not find that Williams’ work injuries caused his disability, Dr. Nogalski did opine that Williams had reached maximum medical improvement (MMI) as of the date of his evaluation on February 5, 2004. Dr. Nogalski stated that Williams still had ongoing symptoms that are most likely related to degenerative disease within the knee itself.

Timothy Lalk, a vocational rehabilitation counselor, offered testimony on behalf of Williams. Lalk evaluated Williams on October 18, 2007. He concluded that with the restrictions Dr. Cohen gave, Williams would only be able to work in a limited capacity at sedentary or near sedentary occupations. However, based upon Lalk's observations of Williams’ physical difficulty during his interview, Lalk believed Williams would not be able to maintain employment in the open labor market. Lalk observed that Williams was unable to change positions without difficulty and appeared unsteady when walking, which Lalk felt would concern a potential employer during a typical job interview. Lalk again evaluated Williams on June 23, 2016, after Williams’ release from care following his most recent surgery. Lalk again observed that Williams had difficulty and discomfort when sitting, changing positions, walking, and standing. He did not believe Williams would be able to secure employment in the open labor market.

After reviewing all of the evidence and testimony submitted, the ALJ concluded that Williams was unable to secure and maintain employment in the open labor market, that Williams’ work activities caused his medical condition and disability, and that his pre-existing disability combined with the work-related disability rendered him permanently and totally disabled. The ALJ found Williams reached MMI on May 9, 2016, the date he was released from care after his most recent knee surgery. Thus, the ALJ concluded that the SIF is liable for permanent total disability (PTD) benefits starting on May 9, 2016.

Williams appealed the ALJ's decision to the Commission, which affirmed the ALJ's award, while clarifying in a supplemental opinion that the applicable version of Chapter 287 is from RSMo. 2000, based on the date of Williams’ injury in 2002. The Commission also incorporated the ALJ's award by reference. One commissioner dissented, noting that he would find that Williams reached MMI on September 8, 2003, when Dr. Maylack released Williams from care following his third knee surgery. This appeal follows.

Discussion

Williams’ sole point on appeal is that the Commission erred in finding that Williams reached MMI on May 9, 2016, rather than September 8, 2003, and thus erred in failing to award PTD benefits beginning on September 8, 2003. We agree.

In reviewing a decision by the Commission, we review only questions of law and may modify, reverse, remand for rehearing, or set aside the award only if: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant making the award. Section 287.495, RSMo 2000.1 We examine the whole record to determine whether there is sufficient competent and substantial evidence to support the award, or whether the award is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). "We defer to the Commission's assessment of witness credibility and the weight given to the testimony." Pursley v. Christian Hosp. Ne./Nw., 355 S.W.3d 508, 514 (Mo. App. E.D. 2011).

At the time of Williams’ injury, Section 287.800 required the Workers’ Compensation Law "to be broadly and liberally interpreted with a view to the public interest, and [the law wa]s intended to extend its benefits to the largest possible class." Wolfgeher v. Wagner Cartage Serv., Inc., 646 S.W.2d 781, 783 (Mo. banc 1983) (citing Section 287.800, RSMo. 1978 (identical to Section 287.800, RSMo. 2000 )). "Any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee." Id.

The Workers’ Compensation Law provides benefits to injured employees based on a progression of their injuries, from temporary to permanent. Temporary disability begins at the time of the injury and covers a claimant's expenses from that date, typically until he or she is able...

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