Having settled his claim against Employer, Employee seeks an award under Section 287.220.1 Mo. Rev. Stat. (2000) for permanent total disability compensation against the Second Injury Fund. Employee claims that he is permanently and totally disabled as a result of the combination of the disability to his neck and low back from the December 28, 2000 accident and the preexisting disabilities to his low back and neck and from diabetes, sleep apnea, hypertension, and cardiac disease. The Second Injury Fund first contends that the December 28, 2000 accident caused only minor temporary aggravations of claimant's preexisting degenerative conditions in his neck and low back and no permanent disability. The Second Injury Fund also contends that claimant was not rendered permanently and totally disabled by the combination of claimant's primary injuries with his preexisting disabilities and that if he was rendered permanently and totally disabled, it was due to the post-primary injury deterioration of his preexisting pathology in his neck and due to diabetes, sleep apnea, hypertension, and cardiac disease.
Section 287.220.1 Mo. Rev. Stat. (2000) provides that where a previous partial disability or disabilities, whether from a compensable injury or otherwise, and the last injury combine to result in total and permanent disability, the employer at the time of the last injury is liable only for the disability which results from the last injury considered by itself, and the Second Injury Fund shall pay the remainder of the compensation that would be due for permanent total disability under Section 287.200; Grant v. Neal, 381 S.W.2d 838, 840 (Mo. 1964); Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo. App. 1992); Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990). The employee must prove that a prior permanent partial disability, whether from a compensable injury or not, combined with the subsequent compensable injury to result in total and permanent disability.
Obviously, where the disability caused solely by the primary injury is total disability, there can be no liability for the Second Injury Fund. For the Second Injury to be liable for permanent total disability compensation, the total disability must result solely from the combination of the preexisting disabilities and the disability caused by the primary disability. If total disability is caused by the primary injury alone, there can no combination. The employee is not entitled to permanent total disability compensation from both the Second Injury Fund and the employer. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000); Vaught v. Vaughts, Inc., 938 S.W.2d 931, 939 (Mo. App. 1997);
Roller v. Treasurer of State of Mo., 935 S.W.2d 739 (Mo. App. 1996).
Where the last injury alone causes the employee to become permanently and totally disabled, then the employer is liable for permanent disability compensation under Section 287.200 Mo. Rev. Stat. (2000). See Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 276 (Mo. App. 1996); Feldman v. Sterling Properties, 910 S.W.2d 808, 810 (Mo. App. 1995); Moorehead v. Lismark Distributing Co., 884 S.W.2d 416, 419 (Mo. App. 1994); Kern v. General Installation, 740 S.W.2d 691, 692 (Mo. App. 1987); see also Terrell v. Board of Education, City of St. Louis, 871 S.W.2d 20 (Mo. App. 1993); Reves v. Kindell's Mercantile Co., Inc., 793 S.W.2d 917 (Mo. App. 1990); Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987); Weinbauer v. Gray Eagle Distributors, 661 S.W.2d 652 (Mo. App. 1983); Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886 (Mo. App. 1975); Mashburn v. Chevrolet Kansas City Div., G.M. Corp., 397 S.W.2d 23 (Mo. App. 1965); Garrison v. Campbell "66" Express, 297 S.W.2d 22 (Mo. App. 1956).
On the other hand, where permanent and total disability results only from the combination of the disability from the primary injury with preexisting disabilities and with unrelated post-primary injury progression of preexisting disabilities, the Second Injury Fund is not liable for permanent and total disability. The Second Injury Fund is not liable for any post-accident worsening of an employee's preexisting disabilities which are not caused or aggravated by the last work-related injury or for any conditions which arise after the last work-related injury. Lammert v. Vess Beverages, Inc., 968 S.W.2d 720, 725 (Mo. App. 1998); Garcia v. St. Louis County, supra; Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo. App. 1994); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo. App. 1992); see also Wilhite v. Hurd, 411 S.W.2d 72 (Mo. 1967).
The first determination to be made is the extent of the compensation liability of the employer for the last injury, considered alone. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000); Vaught v. Vaughts, Inc., 938 S.W.2d 931, 939 (Mo. App. 1997); Roller v. Treasurer of State of Mo., 935 S.W.2d 739, (Mo. App. 1996). After that has been determined, then the extent of preexisting disabilities is to be determined. Lastly, the fact finder is determine whether the preexisting disabilities combine with disabilities from the primary injury to create permanent total disability. Where the combination of those disabilities causes permanent total disability, the Second Injury Fund is liable for permanent total disability, but only after the employer has paid the compensation due for the disability resulting from the primary injury. Cartwright v. Wells Fargo Armored Serv., 921 S.W.2d 165, 167 (Mo. App. 1996); Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995); Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576-77 (Mo. App. 1985).