Phillip Fulkerson v. Ameren UE

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, and we have considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision affirming the September 23, 2008, award and decision of the administrative law judge as supplemented herein.

Employee settled his claim against employer. The administrative law judge heard this matter to consider the nature and extent of any Second Injury Fund liability.

The administrative law judge found that the employee sustained thirty-two percent (32\%) permanent partial disability measured at the level of the body as a whole due to the primary injury. The administrative law judge further found employee to be permanently and totally disabled as a result of the permanent partial disabilities suffered from the primary injury combining with his preexisting permanent partial disabilities. As a result of this conclusion, the administrative law judge found the Second Injury Fund liable for employee's permanent and total disability benefits.

The Second Injury Fund appealed to the Commission alleging the administrative law judge erred in finding the Second Injury Fund liable for employee's permanent total disability benefits because employee's permanent and total disability results from the last injury alone.

The findings of fact and stipulations of the parties were recounted in the award of the administrative law judge; therefore, the pertinent facts will merely be summarized below.

In 1993, employee sustained an injury at work when he was thrown onto the concrete floor following an explosion. As a result, he injured his neck and right upper extremity. Following a right carpal tunnel release

and two cervical fusions, which were performed by Dr. David Kennedy, employee returned to work with Dr. Kennedy's permanent restrictions of no lifting greater than forty pounds, no vibrating tools, no welding, and no climbing ladders. Dr. Robert Margolis, a physician who provided an Independent Medical Evaluation of employee on April 7, 1998, agreed with Dr. Kennedy as to employee's permanent work restrictions and provided said endorsement in his report.

Employee testified that following the 1993 injury and subsequent surgeries, he was no longer able to participate in the recreational activities he once enjoyed, which included bow hunting, jogging, volleyball and softball. In addition, he testified that after the injury he wore a back brace to work.

As a result of the 1993 injury, employee received a settlement based on 40\% permanent partial disability of the neck, 15 % permanent partial disability of the right hand, and 10 % permanent partial disability of the back.

Despite employee's restrictions and limitations incurred as a result of the 1993 injury, he was able to keep his welding certification by performing one certified weld every six months. By keeping his welding certification, his employer allowed him to maintain the same level of income. Employer further accommodated employee by only requiring him to perform jobs he was able to do. Employee testified that his foreman would assign him jobs, but if he could not do the jobs, he would let them know and they would reassign him. Employee stated that had his employer not provided the accommodations they did following the 1993 injury up until the primary injury, he would not have been able to remain employed by employer.

On February 7, 2005, the primary injury occurred. The injury occurred while employee was cleaning up at the end of the day and stepped out of a shower onto a rubber mat to dry off. As employee walked to his locker, he stepped on something sharp, reached down to pull it out of his foot and fell onto the hard concrete floor. He injured his neck and right upper extremity. Following this injury, employee had two additional cervical fusions performed by Dr. Kennedy on April 22, 2005 and December 15, 2005, respectively. As a result of this injury, employee received additional compensation based on 32\% permanent partial disability of the neck. Employee remained off work for almost a year.

Following this primary injury, Dr. Kennedy imposed additional permanent restrictions on employee's work activities. These restrictions included no lifting greater than ten pounds, no repetitive overhead use or lifting, and no overtime. Employer worked with employee to accommodate him, but once he was able to return to work on April 5, 2006, his duties were relegated to merely pushing a broom 90 % of the time. Employee was allowed 45 minute to 2 hour breaks at a time. However, eventually employee could no longer continue working, even with the breaks and other accommodations.

On November 8, 2006, employee was seen by Dr. David T. Volarich for the purpose of obtaining an Independent Medical Evaluation. Dr. Volarich opined that employee is permanently and totally disabled as a direct result of the work-related injury of February 7, 2005, in combination with his preexisting medical conditions.

Dr. Volarich testified that when the primary injury occurred employee had 45\% preexisting permanent partial disability of the body as a whole rated at the cervical spine. Dr. Volarich stated that the preexisting 45\% permanent partial disability accounted for employee's neck pain syndrome, lost motion, and continuing upper extremity paresthesias with neck stiffness and occasional headaches. Dr. Volarich further testified that employee had 15 % preexisting permanent partial disability of the right upper extremity at the wrist due to the carpal tunnel syndrome that required open carpal tunnel release. Said 15 % rating accounted for pain and paresthesias in the dominant hand. Lastly, Dr. Volarich testified that employee had 15\% preexisting permanent partial disability of the body as a whole rated at the lumbosacral spine due to his chronic lumbar syndrome causing back pain and lost motion.

As for the February 7, 2005 primary injury, Dr. Volarich testified that said injury, in isolation, amounted to "a 50 % permanent partial disability of the body as a whole rated at the cervical spine due to the recurrent disk herniation at C4-5 and C5-6 that required two surgical repairs...." The rating accounts for the primary injury's contribution to employee's neck pain syndrome, lost motion, right upper extremity weakness, and continuing radicular symptoms in the right arm, in addition to his headaches.

On December 13, 2006, employee was seen by Mr. James England, employee's vocational consultant. Mr. England testified that employee was unemployable in the open labor market due to a combination of problems he had. The specific factors Mr. England listed as contributing to employee's unemployability were the difficulty employee had functioning, the affects of the medication he was taking, his inability to get through the day without lying down periodically, and his stiff appearance. Based on employee's day-to-day functioning, Mr. England does not feel employee would be able to sustain any type of work in the long-run.

Most importantly, Mr. England testified that he is of the opinion that employee's unemployability is attributed to the combination of employee's February 7, 2005 injury and his preexisting injuries.

Both Dr. Volarich and Mr. England reviewed all treatment records, and examined employee.

Dr. David Robson, a spine specialist, reviewed employee's medical treatment records and determined that employee is permanently and totally disabled as a result of the February 7, 2005 injury alone. Dr. Robson did not meet or examine employee prior to issuing his opinion.

As the administrative law judge correctly stated in the award, there is no doubt that the employee is permanently and totally disabled. The issue challenged in the Second Injury Fund's Application for Review is whether the employee is unemployable in the open labor market as a result of the last accident alone or a combination of the last accident and employee's preexisting conditions.

Section 287.220 RSMo 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." In order to trigger liability of the Second Injury Fund, employee must show the presence of an actual and measurable disability at the time the work injury is sustained and that work-related injury is of such seriousness as to constitute a hindrance or obstacle to employment or re-employment. E. W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App. W.D. 2002), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

In this case, it is clearly based on prior medical records, medical and vocational reports, medical and vocational expert testimony, a prior workers' compensation claim settlement, and employee's own testimony, that employee had preexisting disabilities at the time of the primary injury that caused hindrances and obstacles to his continued employment with employer.

Following employee's 1993 injury and leading up to the primary injury, employee had suffered substantial hindrances and obstacles in his employment. Prior to this 1993 injury he had performed all of the duties of a Certified Repairman. However, when he returned to work following the 1993 injury, he was relegated to only the jobs his permanent restrictions, which were assigned to him by Dr. Kennedy, would allow him to perform. Employee's foreman worked with him and only required him to do jobs that he was physically able to do. Employee was able to maintain the same level of income by completing only one certified weld every six months. Employer went to great lengths in accommodating employee and keeping him employed leading up

until the primary injury. Employee even testified that had employer not made these accommodations, he would not have been able to remain employed with employer.

Although employee clearly had preexisting disabilities prior to the primary injury, establishing preexisting disabilities is not the only burden for an employee asserting Second Injury Fund liability. To establish Second Injury Fund liability employee must also show 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).

Therefore, in evaluating cases such as this, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo.App. W.D. 1999), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). In Kizior, the Court set out a step-by-step test for determining Second Injury Fund liability:

Section 287.220.1 contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (1) the employer's liability is considered in isolation 'the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability'; (2) Next, the degree or percentage of th