          In the Missouri Court of Appeals
                  Eastern District
                                   DIVISION FOUR

THOMAS WILLIAMS,                            )        No. ED108319
                                            )
       Appellant,                           )        Appeal from the Labor and
                                            )        Industrial Relations Commission
v.                                          )
                                            )        Injury No: 02-048799
TREASURER OF THE STATE OF                   )
MISSOURI, AS CUSTODIAN OF THE               )
SECOND INJURY FUND,                         )
                                            )
       Respondent.                          )        Filed: June 30, 2020


                                      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.



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       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



                                             3
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



                                               4
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



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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 to return to work. See Birdsong v. Waste Mgmt., 147 S.W.3d 132, 140 (Mo.

App. S.D. 2004) (claimant entitled to temporary disability benefits until claimant can find

employment or condition has reached point of maximum medical progress). “Temporary


1
 Williams’ injury occurred in 2002, thus the applicable version of the Workers’ Compensation Law is
Chapter 287, RSMo. 2000. All statutory references herein are to this chapter, unless otherwise indicated.

                                                   6
disability awards are intended to cover a healing period.” Williams v. Pillsbury Co., 694

S.W.2d 488, 489 (Mo. App. E.D. 1985), cited in Greer v. SYSCO Food Servs., 475 S.W.3d

655, 667 (Mo. banc 2015). Such awards do not “encompass disability after the condition

has reached the point where further progress is not expected.” Id. If a claimant reaches

this point and does not fully recover from his or her injuries, then permanent disability

benefits become available.

        Here, neither party disputes the Commission’s finding that Williams is permanently

and totally disabled. The Workers’ Compensation Law defines “total disability” as

“inability to return to any employment and not merely . . . inability to return to the

employment in which the employee was engaged at the time of the accident.” Section

287.020.7. 2 The sole issue is when Williams became eligible for PTD benefits, essentially,

when Williams’ inability to work became permanent, rather than temporary. Determining

that date required the Commission to ascertain the point in time at which Williams’

condition shifted from a healing period to a stage where further progress was no longer

expected.

        Though the term “maximum medical improvement” (MMI) was not part of the

Workers’ Compensation Law prior to 2017, our courts have long used the term, or similar

language, in determining the point at which a claimant’s condition was not expected to

improve, therefore becoming a permanent condition. 3 See Cardwell v. Treasurer of State

of Mo., 249 S.W.3d 902, 909-10 (Mo. App. E.D. 2008) (discussing various terms used by




2
  Section 287.020 has since been amended, but the definition of “total disability” remains the same. Section
287.020.6, RSMo. Supp. 2017.
3
  Currently, Section 287.200.1, RSMo. Supp. 2017 states, “Compensation for permanent total disability shall
be paid during the continuance of such disability from the date of maximum medical improvement . . . .”
(emphasis added). The version of this section in RSMo. 2000 omits the italicized language.

                                                     7
courts over time, noting use of “maximum medical improvement” in Vinson v. Curators of

Univ. of Mo., 822 S.W.2d 504, 508 (Mo. App. E.D. 1991)). “Although the term [MMI] is

not included in the statute, the issue of whether any further medical progress can be reached

is essential in determining when a disability becomes permanent . . . .” Id. at 910.

       Here, the evidence in the record does not support the Commission’s finding that

Williams reached MMI after his release from his most recent knee replacement surgery on

May, 9, 2016. The Commission considered expert testimony in the form of depositions

from Dr. Cohen on behalf of Williams and Dr. Nogalski on behalf of the SIF, and both

found Williams reached MMI well before his 2016 surgery. Dr. Nogalski, who saw

Williams in 2004, believed Williams had reached MMI at that point, though he did not find

Williams’ injuries to be caused by Williams’ employment.

       Dr. Cohen, whose testimony the Commission found “to be more credible and thus

persuasive to the issues at hand,” concluded in 2004 that Williams was permanently

disabled, including 80% permanent partial disability at the left knee, 10% permanent partial

disability of the whole body at the lumbar spine, and 60% pre-existing permanent partial

disability at the right ankle. Moreover, Dr. Cohen rated Williams’ levels of disability the

same in his second evaluation of Williams, on May 24, 2016. Dr. Cohen deferred to a

vocational expert regarding whether Williams would be able to obtain employment on the

open labor market, but he did place work restrictions on Williams, which were the same in

both 2004 and 2016. Dr. Cohen further predicted Williams would need additional knee

replacement procedures due to the nature of such a surgery. He explained in both 2009

and 2016 that knee replacements do not last longer than approximately 15 years, decreasing




                                             8
with each subsequent knee replacement, and thus Williams would need multiple knee

replacement surgeries in the future.

       No expert testified that Williams reached MMI upon his release from the revision

of his knee replacement surgery on May 9, 2016, and there was no testimony that the 2016

surgery improved Williams’ condition. Williams testified at the hearing on June 12, 2018

that he continues to have symptoms. Lalk, who evaluated Williams following his 2016

surgery, testified that he again observed Williams’ physical difficulties during his

evaluation, and that his opinion regarding Williams’ ability to maintain employment was

the same as it was during Lalk’s first evaluation, in 2007. Williams’ treatment since his

third surgery in 2003 has consisted of pain management and an additional knee replacement

surgery, as Dr. Cohen stated he would need, simply because of the nature of knee

replacements and their limited longevity. The SIF did not introduce expert testimony or

other evidence to contradict these experts’ opinions regarding Williams’ MMI, or Dr.

Cohen’s testimony regarding the longevity of knee replacements and the resulting necessity

for Williams’ 2016 left knee replacement.

       “Acceptance or rejection of evidence is generally an issue for the Commission to

determine.” Hazeltine v. Second Injury Fund, 591 S.W.3d 45, 59 (Mo. App. E.D. 2019).

However, “when a workers’ compensation record shows no conflict in the evidence or

impeachment of witnesses, ‘the reviewing court may find the award was not based upon

disbelief of the testimony of the witnesses.’” Houston v. Roadway Express, Inc., 133

S.W.3d 173, 179 (Mo. App. S.D. 2004) (quoting Corp v. Joplin Cement Co., 337 S.W.2d

252, 258 (Mo. banc 1960)). The Missouri Supreme Court reasoned as follows:

               [T]he Commission may not arbitrarily disregard and ignore
               competent, substantial and undisputed evidence of witnesses

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               who are not shown by the record to have been impeached, and
               the Commission may not base their finding upon conjecture or
               their own mere personal opinion unsupported by sufficient
               competent evidence.

Corp, 337 S.W.2d at 258 (quoting Sanderson v. Producers Comm’n Ass’n, 229 S.W.2d

563, 567 (Mo. 1950)). While the Commission is free to disbelieve uncontradicted and

unimpeached testimony, absent express findings to this effect, the Commission may not

ignore such evidence. See Hazeltine, 591 S.W.3d at 59; Houston, 133 S.W.3d at 179-80.

       Here, the Commission made no findings that it disbelieved Williams or any of his

experts on the issue of MMI. In fact, the only credibility findings were that Dr. Cohen’s

testimony was “more credible and thus persuasive to the issues at hand,” and that Williams’

testimony was “consistent, credible and forthright.” Because the Commission did not

expressly disbelieve this testimony, nor was it contradicted or impeached, we find the

Commission erred in disregarding it. See Hazeltine, 591 S.W.3d at 59. Both physicians

testified that Williams’ condition was of a permanent nature following his third surgery in

2003, and that he remained symptomatic and in need of pain medication. Williams

remained in that condition until his testimony in 2018. There was no evidence his condition

improved following his 2016 surgery; rather, the evidence was that he needed a knee

replacement because all knee replacements over time must be replaced again.

       The Commission’s reasoning regarding MMI does not contradict this testimony,

nor does its conclusion necessarily follow from its factual findings:

               [A]lthough Claimant was released from care in 2003, Claimant
               remained symptomatic and Claimant underwent additional
               medical treatment and surgical intervention that his expert
               directly related to the primary injury. Specifically, Claimant
               required another revision of his left total knee replacement
               which was performed in 2016.



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These findings are consistent with the uncontradicted and unimpeached evidence that

Williams reached MMI upon his release from care in 2003. His continuing symptoms did

not improve with the knee replacement surgery in 2016, and the medical treatment he has

received since his 2003 left knee replacement has consisted of pain management and a

revision of a knee replacement that had deteriorated. “The Commission may not arbitrarily

disregard or ignore competent, substantial, and undisputed evidence of witnesses not

impeached or base its finding on conjecture or its own opinion unsupported by sufficient

evidence.” Hazeltine, 591 S.W.3d at 60 (citing Bond v. Site Line Surveying, 322 S.W.3d

165, 171 (Mo. App. W.D. 2010)). Thus, the Commission erred in finding that Williams

did not reach MMI until May 9, 2016. Point granted.

                                      Conclusion

       The Commission’s finding that Williams reached MMI on May 9, 2016 is

unsupported by sufficient competent evidence and is against the overwhelming weight of

the evidence. The undisputed and unimpeached evidence shows that Williams reached

MMI when he was released from care on September 8, 2003.                We modify the

Commission’s award of PTD benefits to begin on September 8, 2003. In all other respects,

the award is affirmed.



                                            ____________________________________
                                            Gary M. Gaertner, Jr., Judge

James M. Dowd, P.J., and
Robin Ransom, J., concur.




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