I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.
In 1996, employee sustained a work-related back injury that required surgical treatment. Employee filed a workers' compensation claim regarding the 1996 back injury. On December 30, 1997, employee and employer settled that claim based upon approximate permanent partial disability of 17.5 % of the body as a whole.
On January 8, 2004, employee sustained a back injury in the instant matter. Employee filed workers' compensation claims against employer and the Second Injury Fund. On January 13, 2005, employee and employer settled his claim against employer based upon approximate permanent partial disability of 13.75 % of the body as a whole. The claim against the Second Injury Fund went to hearing and is the subject of the award under review.
The only issue in this matter is whether or not employee's preexisting back condition is a permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if employee becomes unemployed. The administrative law judge concluded it was not.
Dr. Stepp was credible in his opinions. The evidence clearly supported his opinions. There was no credible, competent or objective evidence which contradicted his opinions. While Claimant offered self-serving testimony that he imposed limitations upon himself following his return to work after the 1996 accident; there was no credible, competent or objective evidence which supported his testimony. Claimant did not make a credible witness on that issue.
Furthermore, although Claimant testified that as part of his self imposed limitations after the 1996 accident, his co-workers helped him do his heavy lifting; he offered no testimony from any co-worker who allegedly helped him with any heavy lifting. He offered no testimony from any supervisor who could have confirmed that the company allowed other workers to do part of another employee's job duties. He offered no job descriptions showing that his job duties changed after the 1996 injury. In fact, Claimant's own testimony seemed to indicate that his employer would not accommodate for his injuries. He testified that he quit his job after the 2004 accident to seek a less physically demanding job.
...Claimant failed to prove the Second Injury Fund's liability for compensation due to his failure to prove that the disability from his 1996 accident constituted a hindrance or obstacle to his employment or reemployment. His claim was not denied on any other basis.
The administrative law judge's conclusion that Dr. Stepp was "credible in his opinions" suggests that Dr. Stepp offered opinions in the instant case. He did not. The administrative law judge relies solely upon the medical records of Dr. Stepp generated when Dr. Stepp treated employee for his 1996 back injury. The administrative law judge's findings regarding Dr. Stepp's "opinions" are based upon medical reports prepared on or before September 12, 1997. While Dr. Stepp's records regarding employee's physical condition in 1997 may be useful as a tool to help us understand employee's back history, they are of no value in helping us determine whether employee's back condition was a hindrance or obstacle to employment or reemployment on January 8, 2004.
As a prerequisite to imposing liability on the Second Injury Fund, a claimant must first establish that a preexisting permanent partial disability existed at the time the work-related injury was sustained and was of such seriousness as to constitute a hindrance or obstacle to employment or re-employment. Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 (Mo. App. 2001).
Muller v. Treasurer of Mo., 87 S.W.3d 36, 40 (Mo. App. 2002) (emphasis added).
There is no indication that Dr. Stepp was ever asked, or spontaneously offered, his opinions regarding whether employee's disability as of January 8, 2004, was serious enough to constitute a hindrance or obstacle. In any event, there is no evidence of any such opinion in the record. The administrative law judge erred by relying on 6 year-old records.
The administrative law judge also failed to apply the proper focus in determining whether a disability constitutes a hindrance or obstacle to employment. "[I]n deciding whether a pre-existing injury constitutes a hindrance or obstacle to employment or reemployment, the focus is '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.'" E.W. v. Kansas City School District., 89 S.W.3d 527, 538 (Mo. App. 2002) (citation omitted).
I find that employee testified credibly regarding the manner in which he modified his job duties to accommodate his surgically repaired back. Employee testified regarding his ongoing symptoms and periodic need for pain relievers. Dr. Koprivica testified that employee's back condition was a hindrance or obstacle to employment when he sustained the instant work injury. Dr. Koprivica described how employee was limited mechanically in terms of bending, lifting, and carrying as a result of the 1996 back injury. Dr. Koprivica's testimony was uncontradicted. In the instant case, employee has shown not only the potential for his preexisting back injury to combine with a later injury, but also that it actually has hindered his employment.
The employee met his burden of going forward with evidence that his preexisting back disability was a hindrance to employment. The Second Injury Fund did not offer evidence to rebut employee's proof. Employee has proven his preexisting back condition was a hindrance or obstacle to employment or reemployment. The administrative law judge's conclusion that employee has not so proven is against the great weight of the evidence and contrary to the law. To the extent the administrative law judge believes that an employee can only prove a disability constitutes a hindrance or obstacle to employment through the testimony of a vocational expert, the belief is not supported by the Workers' Compensation Law or Missouri case law.
The administrative law judge suggests that Dr. Koprivica's opinion was sufficient to establish that the preexisting back disability combined synergistically with the primary back injury to result in greater disability than the simple sum of the disability resulting from each injury.
Thus, due to the denial of the claim on other grounds, it was not necessary to reach the Second Injury Fund's argument that Claimant's two back injuries did not combine with each other to result in a greater overall disability to Claimant's body as a whole than the disability represented by the simple sum of the disability from the injuries considered individually. It must be noted, however, that there was no evidence to support the Second Injury Fund's position.
While I agree with the administrative law judge on this point, his comments on this topic are dicta. I would reverse the decision of the administrative law judge and grant employee's request to remand this matter for further findings and conclusions as are necessary based upon a conclusion that employee's preexisting back injury is a hindrance or obstacle to employment or reemployment.