James LeRoy v. Ahal Contracting Co.

Jackson Paving Co., 35 S.W.3d 879, 884 (Mo.App. 2001); § 287.020.7. "It does not require that the claimant be completely inactive or inert." Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo.App. 1995); see also Brookman v. Henry Transp., 924 S.W.2d 286, 290 (Mo.App. 1996); Reiner v. Treasurer, State of Missouri, 837 S.W.2d 363, 367 (Mo.App. 1992).

"'To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition." Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. 2000); see also Massey v. Missouri Butcher \& Cafe Supply, 890 S.W.2d 761, 763 (Mo.App. 1995).

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App. 2003).

[T]he Commission does not have to make its decision only upon testimony from physicians; it can make its findings based on the entire evidence. Smith, 32 S.W.3d at 573; see Eimer, 895 S.W.2d at 120. "In determining the percentage of disability, the Commission is not bound by the percentage estimates of medical experts and it may consider all of the evidence, including the testimony of the employee and all reasonable inferences." Eimer, 895 S.W.2d at 120.

Pavia, 118 S.W.3d at 239 (citing Smith v. Richardson Bros. Roofing, 32 S.W.3d 568 (Mo.App. 2000)). ${ }^{[1]}$

Section 287.220 creates the second injury fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." It matters not whether the previous disability is "from compensable injury or otherwise."

That portion of $\S 287.220$ pertaining to permanent total disability is: "*** If the previous disability * * *, and the last injury together result in total and permanent disability, the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable, is less than the compensation provided in this chapter for permanent total disability then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the second injury fund ****."

Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo. 1966).

To trigger the liability of the Second Injury Fund, an employee must have a pre-existing permanent partial disability, whether from a compensable injury or otherwise. Section 287.220.1; "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." 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." 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, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App. 2002), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

A disability is considered "permanent" if it can be "shown to be of indefinite duration in recovery or substantial improvement is not expected." Tiller v. 166 Auto Auction, 941 S.W.2d 863, 865 (Mo.App. 1997).

Kerns v. Midwest Conveyor, 126 S.W.3d 445, 451 (Mo.App. 2004).

The administrative law judge found the opinion of Dr. Chabot regarding employee's restrictions to be more persuasive than that of Dr. Volarich's. However, Dr. Chabot only evaluated employee in regards to his primary injury of September 30, 2004. Thus, his restrictions were based solely on this injury. Therefore, neither his restrictions nor ultimate opinion addressed whether employee was permanently and totally disabled as a result of the combination of his primary injury and preexisting disabilities.

On the other hand, Dr. Volarich evaluated employee's primary injury and each of his preexisting disabilities. Dr. Volarich also evaluated the combined effects of the primary injury and preexisting disabilities in making his determination that employee was permanently and totally disabled. Therefore, Dr. Volarich's opinion is more persuasive and credible in addressing whether employee was permanently and totally disabled.

The administrative law judge also reasoned in his award that not all of employee's preexisting injuries synergized with his primary injury. The administrative law judge specifically set forth that employee's prior neck injury and right knee injury synergized with the primary injury. He then noted that there was insufficient evidence to show that the left elbow, left wrist or left ${ }^{[2]}$ knee injuries limited employee's pre-accident activity.

The Commission disagrees with this determination. The competent and substantial evidence shows that all of employee's prior injuries synergize with his primary injury to cause a greater disability than their simple sum. Employee testified that he still suffers pain and has diminished grip strength due to his left wrist and elbow injuries. He also testified that he cannot squat, kneel, or climb a ladder any longer due to the pain and potential that his left knee could "pop out" as a result of the prior injury to that knee.

Dr. Volarich testified that employee's primary injury and preexisting disabilities were all a hindrance to his reemployment. In his opinion, the combination of employee's primary injury and preexisting disabilities caused employee to be permanently and totally disabled.

The administrative law judge also erred when he "accepted" Mr. England's "alternative opinion" that employee was still employable. Mr. England did not opine that employee was still employable. Mr. England did discuss alternative conclusions regarding employee's employability depending on whether one accepted the restrictions of Dr. Chabot or Dr. Volarich in his report. His report notes that under Dr. Chabot's restrictions, employee could perform some types of sedentary work, while under Dr. Volarich's restrictions, employee would not be capable of working in the open labor market. However, the administrative law judge ignores Mr. England's ultimate opinion that employee is not employable in the open labor market. Thus, Mr. England clearly and unequivocally adopted Dr. Volarich's restrictions in finding employee unemployable, and did not opine directly or alternatively that employee was still employable.

Furthermore, as set forth above, Dr. Chabot's restrictions are based only on employee's primary injury, and therefore not as credible or persuasive as those of Dr. Volarich. As such, reliance on those restrictions to find that employee is employable was erroneous.

Based upon the foregoing, we do not believe any employer would reasonably be expected to hire employee in his present physical condition. Pavia, 118 S.W.3d at 234. Employee is permanently and totally disabled and unable to compete in the open labor market. We accept Dr. Volarich's and Mr. England's testimony that employee's inability to compete in the open labor market is due to the disability he suffers from the synergistic effect of the combination of his primary work injury and pre-existing disabilities. Therefore, the Second Injury Fund is liable to employee for permanent total disability benefits. See §287.220 RSMo.

We modify the award of the administrative law judge on the issue of Second Injury Fund liability for permanent total disability benefits. The Second Injury Fund is liable to employee for permanent total disability benefits. In all other respects, we affirm th