The only issue presented for consideration is the issue of Second Injury Fund liability for permanent partial disability benefits. Second Injury Fund liability is governed by Section 287.220 RSMo. In order for an administrative law judge or the commission to find Second Injury Fund liability, "a preexisting disability must combine with a disability from a subsequent injury in one of two ways: (1) the two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone and of itself; or (2) the preexisting disability combined with the disability from the subsequent injury to create permanent total disability." Uhlir v. Farmer, Treasurer of the State of Missouri, 94 S.W.3d 441, 444 (Mo App. 2003) (internal citations omitted, overruled on other grounds). As the employee is only claiming permanent partial disability the second portion of the statute quoted above is irrelevant. With regard to the first enumerated way to establish Second Injury Fund liability, the claimant must establish that the prior injury and the subsequent injury meet a minimum threshold which, "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".
The employee has previously settled his primary or subsequent injury against employer for 40 % permanent partial disability of the body as a whole referable to the back, legs and hips. Employee's Exhibit B is the Stipulation for Compromise Settlement. There is nothing in the record which would provide any basis for disturbing that permanent partial disability settlement. The Court finds that the disabilities suffered by employee as a result of the subsequent or primary injuries are consistent with the settlement. The Court specifically finds that the employee has a
40 % permanent partial disability from the 2003 accident. The disabilities for the primary or subsequent injury clearly meet the statutory minimum threshold required by Section 287.220 RSMo.
The remaining question to be decided by the Court is whether the previous disability resulting from the 1987 accident meets the statutory minimum threshold and combines with the subsequent injuries and disabilities from the 2003 accident resulting in a greater overall disability than that which would have resulted from the 2003 injury alone and of itself.
Since the burden of proof rests with the employee, benefits can only be awarded if the Court is persuaded that the employee's evidence meets the requirements of Section 287.220 RSMo. After considering the live testimony of the employee, the testimony of the experts and the medical records admitted, the Court finds that employee is entitled to permanent partial disability benefits from the Second Injury Fund.
As quoted, supra, in order for an employee to establish a right to Second Injury Fund benefits for permanent partial disability, the employee must satisfy two requirements for the preexisting disability: (1) it is of sufficient severity to meet the statutory minimum requirements and, (2) the preexisting disability combines with the primary injuries resulting in a greater overall disability than that which would have resulted from the new injury alone and of itself.
Dr. Berkin testified that the preexisting disability to the employee's back due to the 1987 injury and surgery amounted to a 25 % permanent partial disability of the body as a whole at the level of the lumbosacral spine. The Court finds that employee's preexisting disability to the lower back amounts to 15 % of the body as a whole due to the injury and the surgical repair. Thusly, the disability from the 1987 accident meets the statutory minimum threshold.
Dr. Berkin also opined that the preexisting disability represented a hindrance or obstacle to employment and that the employee's preexisting disability to his lower back combines with the disabilities from the 2003 accident to create a significantly greater disability than the sum of the individual disabilities.
The Court finds that the preexisting back disability from the 1987 accident combines with the disabilities from the 2003 accident resulting in a greater overall disability than that which would have resulted from the new injury alone and of itself.
The parties are certainly aware of the so-called "Back on Back Rule". "Indeed, as a general rule where the first and second injuries are to the same part of the body, as in this case, the second supplements the first rather than combining to create a greater disability than the sum of the two." Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173 (Mo. App. 1995) (overruled on other grounds). While that is the general rule, the same body part limitation is not found in Section 287.220. If the employee can demonstrate the two injuries to the same part of the body do, in fact, produce a synergistic effect, compensation will lie. Uhlir, supra. "In the instant case, Respondent's two injuries combined to produce a synergistic effect of greater overall disability pursuant to Section 287.220, despite the fact that the two injuries were to the
same part of his body." Id. at 445 . Although the rule is still applicable in most cases, there are clearly special circumstances that may justify a finding of a synergistic combination in certain cases. One example of such an exception is when an employee has a preexisting low back injury that causes pain to radiate down one lower extremity and then subsequently has another accident that injures the employee's low back with pain that radiates down the opposite lower extremity. Under those facts, the evidence might justify a conclusion that the preexisting injury and the primary injury did cause a synergistic combination because of the involvement of two opposite extremities. While the factual situation is somewhat different, the same principal exists in this case.
When you read the medical records and the operative reports, the 1987 surgery generally involved the L3-L4 levels of the lumbar spine while the 2004 and 2006 surgeries generally involved the L5-S1 levels of the lumbar spine. After the 1987 accident and surgery, the employee returned to work. His complaints involved back pain, leg weakness and foot drop and even though he took a lighter job in 1990 he testified that he did his job. The 2003 accident resulted in a back surgery in 2004 and due to bad results a second back surgery in 2006. The employee again complains of back pain, weakness in his hips and foot drop, except much worse. The evidence delineates differences between the disabilities from the 1987 accident and the 2003 accident that is more than the simple sum. First of all, the surgeries were at different levels. Secondly while the types of disabilities were similar, the problems from the last accident were much worse. Thirdly, while there was foot drop from the 1983 accident, braces were never required. The employee now has to wear a leg brace due to the severe case of foot drop. In addition, the employee returned to full duty, despite his problems after the 1987 accident. His continued problems required him to seek a less strenuous position that he held up until 2003. The employee could not due the physical aspects of his job in 2006. To his employer's credit, they assigned him to office duties until he reached his $62^{\text {nd }}$ birthday. All of these facts considered together document the something more that is necessary for Second Injury Fund liability. These facts document the synergism that is necessary to support a finding that the requirements of Section 287.220 RSMo. have been met and therefore, mandate that the Second Injury pay permanent partial disability benefits to the employee. These facts go beyond the general rule that the two back injuries supplement each other but do not combine to create a greater disability than their simple sum.
Based on the testimony of Dr. Berkin and the VERY credible testimony of the employee, the combination of the prior back injury from 1987and the primary back injury from 2003 is found to result in disability that is greater than the simple sum of the two disabilities. The Court notes that the Second Injury Fund offered no evidence or witnesses on its behalf. There is no evidence to offset the position or credibility of the employee or Dr. Berkin. It is also found that a 10 % loading factor is appropriate to quantify that synergistic effect. Therefore, the combined disability from the 1987 accident and the 2003 accident primary knee is found to be: 1987-15\% of the body as a whole $=60$ weeks, 2003-40\% of the body as a whole $=160$ weeks for a total of 220 weeks. With a 10 % loading factor the Second Injury Fund has permanent partial disability liability of 22 weeks, 220 weeks $x .10=22$ weeks.
Based on the live testimony of the employee, the deposition testimony of an expert witness, and the medical records admitted into evidence, the Court finds that employee is entitled to, and hereby awards the employee $\ 7,635.10 ( $22 \times \$ 347.05=\ 7,635.10 ). The Second Injury Fund shall pay this amount to the employee.