Claimant contends he is permanently totally disabled. Chatmon v. St. Charles County Ambulance District, 555 S.W.3d 451 (Mo. App. E.D., 2001)(overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, (Mo. 2003)) outlines the basis for permanent total disability.
"Total disability" means 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." §287.020.7 (RSMo 2000). "The test for permanent total disability is a worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment." Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 811 (Mo.App. 2000). "The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this employee in his or her present physical condition." Reese v. Gary and Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App. 1999)."
Dr. Stillings and Dr. Lichtenfeld found Claimant is permanently and totally disabled. Dr. Stillings describes Claimant's appearance best in his report as a less than alert, cooperative, tremulous man with moderate psychomotor retardation. He describes Claimant's speech as slow in tempo and with a latency of response to questions. He found Claimant had no formal thought disorder, poor verbal comprehension, and a failure to understand some simple questions. He felt Claimant had impaired concentration and he easily wandered off the topic at hand. Dr. Stillings found Claimant was withdrawn and his affect was constricted and somewhat blunted. Claimant appeared automatic in his movements and his mood was depressed. This accurately describes my impression of Claimant during his testimony.
The only vocational evidence presented is the report and deposition of Timothy Lalk, submitted on behalf of Claimant. Mr. Lalk is a certified rehabilitation counselor. He found that given Claimant's poor reading and math abilities, it is doubtful he would be able to pursue any training programs. He opined Claimant is not able to compete for any position in the open labor market. His physical limitations restrict him from any labor positions, he has no marketable skills, and his depression prevents him from any type of customer service or unskilled work.
Claimant is fifty-five years old with limited education. He has worked as a laborer his entire career. He is unable to type and has very limited computer knowledge. He has no formal vocational training.
Based on the evidence and my observations of Claimant at trial, I find he has satisfied his burden of proving he is permanently and totally disabled and incompetent to compete in the open labor market.
The next question is whether he is permanently and totally disabled as a result of his December 16, 2003, work injury or as a result of the combination of all his disabilities. In Hughey v. Chrysler Corp., 34 S.W.3d 845 (Mo. App. E.D. 2000), the court held that:
"In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Until that disability is determined, it is not known whether the second injury fund has any liability. Accordingly, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount."
Id at 847 (citations omitted)
Accordingly, I must first determine the disability from Claimant's last injury.
The fact-finding body is not bound by or restricted to the specific percentages of disability suggested or stated by the medical experts. It may also consider the testimony of employee and other lay witnesses and draw reasonable inferences from such testimony. Fogelsong v. Banquet Foods Corporations, 526 S.W.2d 886, 892 (Mo.App. 1975). Employer's expert, Dr. Kreighshauser, found a 10 % disability to Claimant's right shoulder and imposed a 25 -pound lifting restriction. Claimant's expert, Dr. Lichtenfeld, found he had a 42 \frac{1}{2} % permanent disability to his shoulder and agreed with Dr. Kreighauser's restrictions. Dr. Stillings also assess disability due to the last injury based on his opinion the work injury aggravated Claimant's preexisting psychiatric condition.
Claimant was able to return to work within his lifting restrictions for nearly a year before his termination. Employer testified Claimant was a very valuable employee. He was terminated due to excessive absenteeism related to his migraines and his depression. I find Claimant's right shoulder and aggravation of his psychiatric injury alone do not render him permanently and totally disabled. Based on Claimant's continued complaints and on the medical evidence, I find Claimant sustained a 30 % permanent partial disability to his right shoulder as a result of his work injury. I find Claimant has sustained an additional 5 % disability to the body as a whole as a result of the aggravation of his pre-existing psychological condition.
Section 287.220 (RSMo 2000) creates the Second Injury Fund and outlines the compensation to be paid in cases of permanent disability where there is previous disability.
To trigger the liability of the Second Injury Fund for his permanent total disability, Claimant must have a pre-existing permanent partial disability, whether from a compensable injury or otherwise. Section 287.220.1; Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 (Mo.App.2001)(overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.2003)). "The permanent disability pre-dating the injury in question must exist at the time the work-related injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed.' "Id. (quoting Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo.App.1999)). See also 287.220.1. To determine whether a pre-existing partial disability constitutes a hindrance or obstacle to the employee's employment, "the Commission should focus on the potential that the pre-existing injury may combine with a future work related injury to result in a greater degree of disability than would have resulted if there was no such prior condition."
Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo.App.1997)(overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.2003)). Claimant must then prove that the combined effect of the disability resulting from the work-related injury and the disability that is attributable to all conditions existing at the time of the last injury resulted in permanent total disability, Boring v. Treasurer, 947 S.W.2d 483 (Mo.App. 1997)(overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.2003)).
If there is any percentage of Claimant's disability that is not attributable to the work injury, then the Fund becomes liable for the difference. Messex v. Sachs Elec. Co. 989 S.W.2d 206, 215 (Mo.App. E.D.,1999)(overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.2003))
I find Claimant has satisfied his burden to trigger Second Injury Fund liability for his permanent total disability.
Claimant had preexisting permanent partial disability due to his left shoulder surgery, migraines and depressive disorder. Each one of these disabilities caused him to miss a significant amount of work before his last injury. He had to compensate for his physical limitations with his left shoulder by over-using his right shoulder. His missed several weeks of work before his 2003 work injury due to his depression and his migraines. He took a demotion from his lead man position back to a laborer due to his psychiatric condition. Dr. Bassett and Dr. Stillings agree Claimant had a major depressive disorder prior to his work accident. All of these disabilities constitute a hindrance or obstacle to his employment or to obtaining reemployment.