John Kolar v. First Student Inc., and Treasurer of Missouri as Custodian of the Second Injury Fund

In the Missouri Court of Appeals
Eastern District
DIVISION ONE

JOHN KOLAR, ) ED102450
)
Respondent, )
)
vs. ) Appeal from the Labor and
) Industrial Relations Commission
FIRST STUDENT, INC., )
)
Appellant, )
)
and )
)
TREASURER OF MISSOURI AS )
CUSTODIAN OF THE SECOND )
INJURY FUND, )
) Filed: September 22, 2015
Respondent. )

First Student (“Employer”) and New Hampshire Insurance Company (“Insurer”) appeal

from the decision of the Labor and Industrial Relations Commission (“the Commission”) in

favor of John Kolar (“Employee”). Employer asserts four points on appeal. We affirm.

Employee was employed as a bus driver for Employer. When Employee began working

for Employer, he weighed almost 400 pounds. However, despite being overweight, there is no

evidence he had difficulty doing his job before his injury.

On October 26, 2009, Employee was performing a pre-trip inspection of the bus when he

fell in a grassy area and injured himself. Employee was taken by ambulance to the emergency
room where it was discovered he had broken his tibia and fibula in his right leg. Employee

underwent surgery the next day to repair the break. Employee spent the next 30 days in the

hospital and was then discharged to a rehabilitation facility because he was not allowed to bear

weight on his right leg, which prevented him from negotiating the stairs in his home. While

Employee was in the hospital he was also diagnosed and began receiving treatment for diabetes.

After three months at the rehabilitation facility, Employee was released, but continued

with outpatient therapy. On November 12, 2010, Employee reached maximum medical

improvement and no longer needed a cane and could walk the distance required of him to do his

job.

Employee testified that while he was at the rehabilitation center, he began having pain in

his left leg, which he attributed to putting more weight on that leg while his right leg was injured.

Employee’s physical therapist noted the complaints of soreness and pain. Dr. Robert Medler,

who performed the surgery on Employee’s right leg, also noted Employee was complaining of

pain in his left knee, although he did not think it was related to the work injury and never

examined or treated Employee’s left knee. Employee later received cortisone injections on his

left knee from a different doctor and currently has a recommendation for a total knee

replacement.

In August of 2010, Employee returned to work performing the same general duties he did

before his accident. However, he did not take any extra routes after he returned, which resulted

in him working fewer hours. Employee attributed his need to cut his hours to leg pain and

decreased endurance. Employee performed all duties of a bus driver throughout the 2010-11 and

2011-12 school years.

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 In June of 2012, Employee did not pass Employer’s annual physical due to high blood

pressure and high blood sugar. He was also diagnosed with neuropathy in August of 2012, but

he testified he began having foot numbness at the end of the 2011-12 school year. At the time of

the hearing, Employee had numbness in both his hands and feet. Employee did not take the

Department of Transportation (“DOT”) physical in 2012 because he could not pass with his high

blood pressure, neuropathy, dependence on insulin, and he also believed he could not jump off

the bus or carry the weight the DOT required.

At the time of the hearing, Employee complained of deep, aching pain in his right leg,

which limits his endurance, balance, and mobility. Employee also stated he had pain in his left

knee, and that his weight caused endurance problems.

Dr. David Volarich examined Employee and testified his left knee pain was due to

patellofemoral syndrome and patella mistracking from abnormal weight bearing. Dr. Volarich

found the October 26, 2009 work accident was the prevailing factor in causing the diagnoses.

Dr. Volarich assigned disability ratings of 45% permanent partial disability of the right lower

extremity due to the fracture and 35% permanent partial disability of the left knee due to

patellofemoral syndrome. The only preexisting disability Dr. Volarich found was morbid

obesity, which has not changed significantly since the accident. He rated that disability at 35%

permanent partial disability of the body as a whole due to difficulties with agility, endurance, and

shortness of breath. While the obesity was a hindrance to employment, Dr. Volarich

recommended a few options for weight loss and found the condition not to be permanent.

Dr. Medler testified regarding how he repaired Employee’s right leg. Dr. Medler also

testified he did not believe the left knee pain was related to the right leg injury. Dr. Medler

assigned permanent partial disability of 5% of the right leg below the knee.

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 On April 22, 2010, Employee filed a claim for workers’ compensation. The Division of

Workers’ Compensation (“Division”) found Employee had 35% permanent partial disability of

the right lower extremity at the level of the knee and 15% permanent partial disability of the left

knee. Thus, the Division awarded Employee a total of $45,210.28 in compensation.

Employer appealed to the appeals tribunal. The Administrative Law Judge (“ALJ”)

found Employee suffered permanent partial disability of 35% of the right lower extremity at the

level of the knee and 15% permanent partial disability of the left lower extremity at the level of

the knee. The ALJ also awarded a multiplicity factor of 12.5%. Thus, Employer was liable to

Employee for $31,500.00. In addition, the ALJ ordered Employer to provide future medical care

to remove the hardware in Employee’s right leg should it become necessary. Lastly, the ALJ

found the Second Injury Fund was liable for only thirty-six weeks of permanent partial disability

compensation.

Employee then filed an application for review with the Commission, in which he asserted

he was entitled to permanent total disability benefits from the Second Injury Fund, permanent

partial disability benefits greater than those issued by the ALJ, and future medical care.

Employer also filed an application for review with the Commission, in which it made arguments

substantially similar to those it asserts in this appeal. The Commission affirmed and adopted the

findings of the ALJ as its own. This appeal follows.

Our review of the Commission’s decision is governed by Article V, Section 18, of the

Missouri Constitution and Section 287.495, RSMo Cum. Supp. 2013. Scholastic, Inc. v. Viley,

452 S.W.3d 680, 682 (Mo. App. W.D. 2014). Article V, Section 18, provides for judicial review

of the Commission’s award to determine whether the decision is authorized by law and whether

it is supported by competent and substantial evidence upon the whole record. Id. at 682-83.

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Under Section 287.495, we must affirm unless the Commission acted in excess of its powers, the

award was procured by fraud, the facts do not support the award, or insufficient competent

evidence exists to warrant the making of the award. Id. at 683. To determine whether there is

sufficient competent and substantial evidence to support the award, we examine the evidence in

the context of the whole record. Id. We defer to the commission on issues of fact, the credibility

of the witnesses, and the weight given to conflicting evidence. Id. We review issues of law de

novo. Id. Where, as here, the Commission affirms and incorporates the ALJ’s decision in its

award, we examine the ALJ’s findings as adopted by the Commission. Storie v. Americare

Systems, Inc., 304 S.W.3d 254, 257 (Mo. App. S.D. 2010).

In its first point, Employer argues the Commission erred in causally relating the alleged

left leg injury to the accident of October 26, 2009 because there is insufficient competent,

substantial, credible medical testimony or other evidence in the record to support that portion of

the award. We disagree.

Employer contends the testimony of Dr. Volarich was less credible than that of Dr.

Medler. Dr. Volarich testified Employee suffered from patellofemoral syndrome and patella

mistracking due to abnormal weight bearing after his injury, which prevented him from bearing

weight on his right lower extremity. Dr. Volarich admitted these symptoms could be related to

Employee’s morbid obesity, but stated, if that were the case, he would expect to see them on the

right knee as well, but it was completely normal. Moreover, Dr. Volarich testified Employee did

not have any problems with his joints before the October 26, 2009 injury, despite being morbidly

obese then too.

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 Dr. Medler testified the left knee injury was unrelated to the October 26, 2009 injury. Dr.

Medler testified a patient could experience temporary discomfort as complained of by Employee,

but once weight-bearing return to normal, the pain would cease.

Employer notes Dr. Medler is an orthopedic surgeon, who actually treated Employee,

while, on the other hand, Dr. Volarich is not an orthopedic surgeon and did not treat Employee.

Thus, Employer contends Dr. Medler was more credible than Dr. Volarich.

As noted above, we defer to the commission on issues of fact, the credibility of the

witnesses, and the weight given to conflicting evidence. To choose between two conflicting

medical theories is a determination particularly for the Commission because the weighing of

expert testimony on matters relating to medical causation lies within the Commission’s sole

discretion and cannot be reviewed by this Court. Proffer v. Federal Mogul Corp., 341 S.W.3d

184, 187 (Mo. App. S.D. 2011).

The Commission stated it found Dr. Volarich’s opinion to be more persuasive because he

examined the left knee and carefully considered the facts before reaching his conclusion.

Further, Dr. Volarich gave a reasonable explanation for his diagnosis and cited objective

evidence in support. On the other hand, the Commission noted Dr. Medler did not even examine

the left knee and failed to consider that the left leg injury could be causally related to the October

26, 2009 injury. Lastly, the Commission noted Employee’s left knee had not returned to normal

with the improvement of Employee’s right leg injury as Dr. Medler had predicted.

Thus, the Commission’s award, finding Dr. Volarich’s determination that Employee’s

left knee injuries were causally related to the October 26, 2009 injury to be more credible than

Dr. Medler’s findings, was supported by sufficient competent and substantial evidence and was

not clearly against the overwhelming weight of the evidence. Point denied.

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 In its second point, Employer argues the Commission erred in the extent of the award of

permanent partial disability benefits against Employer/Insurer because Employee testified to

only minimal functional limitations in the right leg, in that the overwhelming weight of the

credible, substantial, and objective evidence in the record does not support the extent of the

award. We disagree.

Employer is essentially arguing that Dr. Medler’s opinion as to the extent of permanent

partial disability is more persuasive than Dr. Volarich’s. Dr. Volarich testified that Employee

suffered 45% permanent partial disability to the right lower extremity at the level of the knee, as

well as 35% permanent partial disability to the left lower extremity at the knee, and that the work

event of October 26, 2009 was the primary or prevailing factor in causing both knee injuries and

the corresponding rates of permanent partial disability. On the other hand. Dr. Medler assigned

5% permanent partial disability to the right leg below the knee, but did not find the left leg was

disabled at all.

The record shows Employee complained of deep, aching pain in his right leg, especially

when the weather was cold and wet, but also on normal days. Further, he stated his right leg was

painful with weight-bearing and limited his endurance. Employee noted he had trouble going up

stairs and experienced pain going down stairs. Employee noted he had to take one stair at a time.

Moreover, he also reported balance issues due to left knee pain in combination with right leg

pain.

Again, Employer is asking us to substitute our judgment of the credibility of the

witnesses for that of the Commission. However, we are bound to accept the Commission’s

credibility determinations, which are supported by sufficient competent and substantial evidence

in the record.

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 Therefore, we find the Commission did not err in the extent of the award of permanent

partial disability benefits against Employer. Point denied.

In its third point, Employer argues the Commission erred in affirming and adopting the

ALJ’s award of a “multiplicity factor” because, although the Commission previously enjoyed

broad discretion awarding disability benefits, the notion of “multiplicity” is absent from the

statutory framework of the version of the Missouri Workers’ Compensation Act in effect both

now and at the time of Employee’s injury, and therefore violated the strict construction and

impartial framework of Section 287.800. We disagree.

As noted above, the Commission awarded a multiplicity factor of 12.5% to address

cumulative disabilities. In doing so, the Commission cites cases from before 2005, when the

legislature determined the provisions of the Workers’ Compensation Act were to be strictly

construed. Employer argues there is no statutory authority for a multiplicity factor, and, as a

result, it cannot be presumed that a multiplicity factor is permissible.

A multiplicity factor is a special or additional allowance for cumulative disabilities

resulting from a multiplicity of injuries. Sharp v. New Mac Elec. Co-op., 92 S.W.3d 351, 354

(Mo. App. S.D. 2003). The Commission has the discretion to include a multiplicity factor in

assessing cumulative disabilities but is not required to do so. Id.

In support of its application of a multiplicity factor, the Commission cites to Eagle

Chambliss v. Lutheran Medical Center, 822 S.W.2d 926, 932 (Mo. App. E.D. 1991) and Sharp v.

New Mac Elec. Co-op, 92 S.W.3d 351, 354 (Mo. App. S.D. 2003). Both of these cases have

been overruled by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), but

they were not overruled based on their use of a multiplicity factor. The case law demonstrates

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multiplicity factors were permitted before the 2005 amendments, and the amendments did not

mandate any change with respect to multiplicity factors.

In 2005, Section 287.800 was amended. Previous to the amendment, it provided: “All of

the provisions of this chapter shall be liberally construed with a view to the public welfare . . ..”

The current version, however, provides: “[a]dministrative law judges, associate administrative

law judges, legal advisors, the labor and industrial relations commission, the division of workers'

compensation, and any reviewing courts shall construe the provisions of this chapter strictly.”

Section 287.800 Cum. Supp. 2008.

When the legislature amends a statute, it is presumed that its intent was to bring about

some change in the existing law. Hogan v. Board of Police Com'rs of Kansas City, 337 S.W.3d

124, 130 (Mo. App. W.D. 2011) (quoting State v. Joos, 218 S.W.3d 543, 548-49 (Mo. App.

S.D.2007)). The legislature is presumed to have acted with a full awareness and complete

knowledge of the present state of the law, including judicial and legislative precedent. Id. This

Court should never construe a statute in a manner that would moot the legislative changes,

because the legislature is never presumed to have committed a useless act. Id. To amend a

statute and accomplish nothing from the amendment would be a meaningless act. Id.

However, we note neither the original nor the amended version of the Workers’

Compensation Act mentions the use of a multiplicity factor. Instead, that mechanism was

developed by case law. We find allowing multiplicity factors to continue to be used is not

inconsistent with strict construction of the Workers’ Compensation Act. Had the legislature

intended to discontinue their use, it could have done so explicitly in the amended statute.

Because it did not do so, we presume it did not intend to prohibit their use.

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 Therefore, the Commission did not err in affirming and adopting the ALJ’s award, which

made use of a multiplicity factor. Point denied.

In its fourth point, Employer argues the Commission erred in awarding future medical

care to Employee because Employee failed to establish, through competent medical evidence,

that there is a reasonable probability that he will require additional treatment in the future. We

disagree.

To be entitled to future medical expense benefits, an employee need not show conclusive

evidence of a need for future medical treatment. Greer v. Sysco Food Services, 2014 WL

6464473, (Mo. App. E.D. 2014). Nor is an employee required to show evidence of the specific

nature of the treatment needed. Id. Instead, an employee need only demonstrate a reasonable

probability that future medical treatment is needed by reason of his work-related injury. Id.

Future care to relieve an employee’s pain should not be denied simply because he may have

achieved maximum medical improvement. Id.

The Commission ordered Employer to provide future medical care, but only to remove

the hardware in Employee’s right leg should it become necessary. Employer contends Dr.

Volarich did not see any indication that the hardware used to repair Employee’s right leg would

need to be removed in the future, but acknowledged such a need could arise. Dr. Medler stated

that “[e]verybody has the option to get their hardware removed if it’s painful, but most people

don’t get the hardware taken out.” Further, he testified the time since Employee’s injury tended

to indicate he would not have the hardware removed.

However, we note there is substantial evidence in the record that Employee was still

experiencing pain in his right leg. If, in the future, Employee did need to have the hardware

removed, the Commission found such care would flow from the October 26, 2009 injury and

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would cure and relieve the effects of the injury. Thus, we find there was competent and

substantial evidence to support the Commission’s award of future medical care only to remove

the hardware in Employee’s right leg should it become necessary.

Therefore, the Commission did not err in awarding future medical care to Employee.

Point denied.

The decision of the Commission is affirmed.

ROBERT G. DOWD, JR., Presiding Judge

Mary K. Hoff, J. and
Roy L. Richter, J., concur.

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