Donna Blankenship v. Von Weise Gear

the Second Injury Fund.

Permanent and total disability is defined by section 287.020 .7 RSMo (2000) as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident.

"In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself." Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App. W.D. 2004) citing Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 (Mo.App. W.D. 2001).

"Liability of the Second Injury Fund is triggered only 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained.'" E.W. v. Kansas City School District, 89 S.W.3d 527, 537 (Mo.App. W.D. 2002) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)).

The administrative law judge ultimately concluded that employee was not unable to compete in the open labor market as a result of the combination of her work injuries and her pre-existing disabilities. However, competent and substantial evidence establishes that employee is entitled to permanent total disability benefits against the Second Injury Fund as she is permanently and totally disabled due to a combination of her pre-existing disabilities and her subsequent shoulder conditions.

The record shows that employee suffered from pre-existing conditions. She suffered from a chronic degenerative back condition, as well as residual symptoms after having surgical repair for bilateral carpal tunnel syndrome.

Employee provided testimony regarding her pre-existing injuries. She testified that she sustained multiple injuries to her low back. She missed a measurable amount of work as a result of her low back injuries for which she received temporary total disability benefits. Prior to November 2003, employee received a settlement along with awards for her back injuries that totaled 171 / 2 % permanent partial disability to the body as a whole referable to the low back. Employee also changed to a less strenuous, light-duty job for a few years as a result of her back injuries. Employee testified as to the limitations she had as a result of her back condition which included difficulty with prolonged sitting and standing as well as difficulty sleeping due to pain. Employee also underwent carpal tunnel release surgery on both wrists. She continued to experience weakness and difficulty with regard to her grip after the surgeries.

Employee also provided testimony with regard to her primary injuries. Employee underwent three surgical procedures on her right shoulder and one surgery on her left shoulder. As a result of her surgeries she experiences chronic pain. Employee settled her claim for 321 / 2 % permanent partial disability of the right shoulder and 20 % permanent partial disability of the left shoulder. Employee testified as to her inability to sustain work as a result of a combination of her primary and pre-existing conditions.

Additionally, employee provided expert testimony to corroborate her testimony. Employee's medical and vocational experts testified that employee was unable to sustain work. Dr. Volarich testified that employee's preexisting conditions were obstacles to her employment. Dr. Volarich noted that degenerative changes in employee's lumbar spine along with bulging discs accounted for her pain prior to her November 2003 injuries. Dr. Volarich testified that employee sustained a 30\% permanent partial disability to the body as a whole referable to her low back. Dr. Volarich opined that employee suffered 25 % permanent partial disability referable to each wrist. He further testified that employee was permanently and totally disabled as a result of the combination of employee's primary and pre-existing disabilities. In addition, vocational expert, Mr. Lalk, testified that employee could not compete in the open labor market. He opined that her shoulder injuries alone would not render her unemployable; however when considered in combination with her low back symptoms and wrist complaints, she would not be able to compete for any position.

The record demonstrates that employee did suffer from actual and measurable disabilities at the time of her work injuries on November 19, 2003, that were an obstacle or hindrance to employment. The evidence supports a finding that employee's pre-existing disabilities combined with her subsequent shoulder injuries to render her

permanently and totally disabled.

Based on the foregoing, I conclude that employee is permanently and totally disabled as a result of the combination of employee's pre-existing disabilities and her November 19, 2003 injuries.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-019858

Employee: Donna M. Blankenship

Employer: Von Weise Gear (Settled)

Insurer: Travelers (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: March 9, 2004

Place and County of Accident: Franklin County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 31, 2007. The award and decision of Administrative Law Judge Kevin Dinwiddie, issued May 31, 2007, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\underline{13^{\text {th }}}$ day of November 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

1. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}$
2. Employee's average weekly wages: by agreement
3. Weekly compensation rate: $\$ 444.46 / \ 347.05
4. Method wages computation: by agreement of the parties

1. Amount of compensation payable:
2. Second Injury Fund liability: Yes

34.275 weeks of permanent partial disability from Second Injury Fund at $\ 347.05 per week. $\ 11,895.14

TOTAL:

$\ 11,895.14

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

Said payments to begin as of the date of this award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

John J. Larsen Jr.

Employee: Donna M. Blankenship

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $