John Deibel v. United Parcel Service

Employee works as a parcel delivery driver for employer. On average, employee delivers 300 or more packages per day.

In February 1999, employee suffered a detached retina in his right eye as a result of a work injury. Employee underwent laser surgery as a result of this injury. Employee did not provide any treatment records related to this injury. Within six to nine months following the initial surgery for his right eye, employee experienced cloudiness in that eye. Employee eventually underwent lens replacement surgery to correct cataracts in his right eye. Employee did not provide any treatment records connected to the cataract surgery. Employee settled a claim for compensation against employer for 10\% permanent partial disability of the right eye at the 140-week level on April 14, 2000.

In April 2005, employee injured his knee when he stepped off a package inside his delivery truck. On October 12, 2005, employee settled a claim for compensation against employer for 20 % of the right knee. Currently, the skin of employee's knee is always numb, but employee does not experience any functional limitations as a result of the April 2005 knee injury.

On July 18, 2005, employee suffered injury to his left eye while pulling a roll of carpet from his delivery truck. Employee underwent surgery to repair a torn retina. Employee did not provide any treatment records related to this injury. At some point following the surgery to repair employee's torn retina, employee developed a cataract in his left eye, which was treated surgically. Employee did not provide any treatment records from the cataract surgery. Vision in employee's right eye worsened progressively following the July 2005 left eye injury.

On March 29, 2006, Dr. Joan Pernoud examined employee for the purpose of assessing the nature and extent of any permanent disability of employee's left eye. Dr. Pernoud diagnosed bilateral retinal detachments. Dr. Pernoud noted that the implant in employee's right eye increased an asymmetry between his two eyes requiring employee to use contact lenses, rather than glasses, to achieve normal binocularity. Dr. Pernoud determined that employee was at maximum medical improvement and rated his disability at 21.6 % permanent partial disability of the left eye. Dr. Pernoud opined that employee's left eye condition complicates and worsens his pre-existing visual asymmetry. Dr. Pernoud did not provide any opinion as to the extent of any preexisting permanent partial disability in employee's right eye.

On May 18, 2006, Dr. Pernoud opined, in a letter to employee's counsel, that it would be prudent to leave medical treatment open for at least an additional year in light of the fact that the cataract in employee's right eye did not need to be removed for two years following the retinal detachment repair. Dr. Pernoud recommended that employee be evaluated again in the summer of 2007, if not earlier, in order to determine whether "his cataract has become worse." Dr. Pernoud did not specify whether she was speaking of a cataract in employee's right or left eye.

On June 28, 2006, employee settled a claim for compensation against his employer for 21.6 % permanent partial disability of the left eye at the 140 -week level. Employer agreed to leave medical treatment open until 2007 for cataract repair of the left eye.

On October 3, 2007, Dr. Pernoud again examined employee. Dr. Pernoud issued a supplemental report on October 4, 2007, addressing the condition of both of employee's eyes. Dr. Pernoud diagnosed traumatic cataract formation and removal in each eye, and issued new disability ratings. Dr. Pernoud rated employee's right eye at 72 % permanent partial disability at the 140 -week level, and employee's left eye at 67.6 % permanent partial disability at the 260 -week level. Dr. Pernoud provided little in the way of explanation or elaboration to support the assigned ratings. Dr. Pernoud merely filled out a Division of Workers' Compensation Form 9-A Physician's Report on Eye Injuries, without authoring a narrative report to explain her findings and ratings. Due to the summary nature of her report, we are unable to determine whether her ratings are meant to identify the extent of right eye disability as of the date of her report or whether the right eye rating is to be understood as pre-existing the primary injury. Dr. Pernoud's report indicates that employee has 20/20 vision with correction.

Initially, we note that we agree with the finding of the administrative law judge that the preexisting right knee injury does not combine in a synergistic fashion with the primary injury. We further find that employee failed to establish that the preexisting right knee injury constituted a hindrance or obstacle to employment at the time of the primary injury: employee admitted that he experiences no functional limitations as a result of the knee injury. Given these findings, we conclude that employee is not entitled to benefits from the Second Injury Fund on the basis of any combinative disability stemming from the right knee injury and the primary injury. See E.W. v. Kan. City Sch. Dist., 89 S.W.3d 527, 537 (Mo. App. 2002). We will now address employee's claim that his preexisting right eye injury combines with the primary injury to trigger Second Injury Fund liability.

The sole issue before the Commission is the nature and extent of any Second Injury Fund liability. 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." Here, employee seeks an award of permanent partial disability benefits from the Second Injury Fund. The Second Injury Fund is liable for permanent partial disability benefits as follows:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation,

Enployee: John Deibel

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receives a subsequent compensable injury resulting in additional permanent partial disability ... 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. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund ....

Section 287.220.1 RSMo

Under the foregoing section, in order to recover permanent partial disability benefits from the Second Injury Fund, an employee is required to prove the existence of a preexisting permanent partial disability that equals a minimum of fifty weeks compensation for injuries to the body as a whole or fifteen percent permanent partial disability of a major extremity. Here, employee argues that he is entitled to benefits from the Second Injury Fund on the basis of his preexisting right eye injury. "An injury to the eye is also a partial injury to the body as a whole for purposes of fund liability." *Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund*, 126 S.W.3d 386, 390 (Mo. 2004). Therefore, in assessing the nature and extent of Second Injury Fund liability in this case, we must examine the record to determine whether, on the date of the primary injury, employee's right eye disability met the statutory threshold of fifty weeks compensation for an injury to the body as a whole.

Employee provided little evidence of the degree of disability of his right eye at the time of the primary injury. Employee provided evidence of his April 14, 2000, settlement with employer for 10% permanent partial disability of the right eye at the 140-week level. The settlement is relevant evidence of the extent of right eye disability. See *Conley v. Treasurer*, 999 S.W.2d 269, 275 (Mo. App. 1999). Clearly, though, the settlement does not provide evidence of a permanent partial disability equal to or greater than fifty weeks. Although employee provided his testimony that he developed cataracts in his right eye six to nine months following his surgery for a detached retina, and that he underwent a subsequent surgery to