Donald Steck v. Bluewood, Inc.

L5-S1 levels. Due to prior injuries, surgery on employee's back was delayed until January 7, 2009. On January 7, 2009, employee underwent micro-decompression surgery at L3-4, L4-5, and L5-S1 with laminectomy, medial facetectomies, foraminotomies, as well as complex repair of dural erosion with spinal fluid leak at L5S1. Employee was released from care post-surgery on February 24, 2009.

Employee injured his right knee playing high school football, and re-injured the knee several times - including, most prominently, in 1971, 1987, and 2003. The 1987 injury resulted in surgical removal of his right anterior cruciate ligament. In 2003, Dr. Michael Snyder performed a complete right knee replacement as the result of "severe degenerative arthritis." Employee was eventually allowed to return to work. However, he continued to experience difficulties with his knee as it impeded his ability to work.

Also prior to the November 16, 2007, accident, employee had sustained some hearing loss. This occurred while employee was serving in the United States Navy. Employee testified that he had been awarded a 10 % service-connected disability due to tinnitus.

Employee testified that he also suffered injuries to his feet while serving in the United States Navy. He stated that he has had bunions removed from both big toes and has "three dead spots in the bottom of his right foot." In addition, employee testified that he has screws in both big toes, which caused pain and problems walking before the primary injury and which also affected his employment.

Lastly, employee suffers from a number of significant internal medicine issues, including chronic pancreatitis, cardiac disease, coronary artery disease, lung disease, deep vein thrombosis, and pulmonary embolisms.

Dr. George Carr performed an independent medical evaluation of employee on May 11, 2009. Dr. Carr found that employee, despite continuing pain, had reached maximum medical improvement. Dr. Carr rated employee's primary injury, as a "30 percent permanent partial disability of the body as a whole related to the lumbosacral spine due to the disc herniation and subsequent surgery."

Dr. Carr rated employee's right knee at " 15 % permanent partial disability at the 160[week] level..." due to the injury's "contribution to his chronic right knee pain with reduced range of motion and limited endurance." Dr. Douglas Kiburz, the surgeon that performed the 1987 surgery, opined that employee sustained a 35 % permanent partial disability of his right knee.

Dr. Carr did not assign a rating to employee's hearing loss, bilateral foot problems, or his internal medicine issues. Dr. Carr testified that even though he did not provide a rating for employee's internal medicine issues, it is his opinion that they are disabling to employee to some degree.

Dr. Carr gave employee work restrictions that he "avoid repetitive bending, twisting, and lifting" and avoid "fixed positions for more than 20 minutes at a time, impact acitivities, and vibration." In addition, Dr. Carr stated that employee "need[ed] to follow proper lifting techniques," should not lift more than 20 minutes at a time, and should limit continuous walking or standing to periods of 20 minutes.

Dr. Carr testified that the primary injury was the "main factor in causing [employee's] back problems," but that employee's overall disability was affected by "all those other pre-existing problems." Specifically, Dr. Carr concluded that "[t]he combination of impairments creates a substantially greater disability than the simple total of each and a loading factor should be added."

Mr. Phillip Eldred, a vocational rehabilitation specialist, testified on behalf of employee. Mr. Eldred personally examined employee and obtained employee's work and educational history. Mr. Eldred also evaluated employee's pre-existing medical conditions by reviewing his medical history, records of past medical treatment and the results of the examination by Dr. Carr. Mr. Eldred found employee's impairments prior to November 16, 2007, were vocationally disabling and constituted a hindrance or obstacle to his employment. Mr. Eldred concluded that employee "is permanently and totally disabled as a result of his injury on November 16, 2007, combined with his preexisting medical conditions."

The Second Injury Fund did not offer any witnesses, expert evidence, or medical records to rebut employee's evidence.

Under § 287.220.1 RSMo, when an employee is permanently and totally disabled by a combination of the primary injury and pre-existing disabilities, the employer is responsible for only the disability benefits attributable to the primary injury and the remainder of the disability benefits are the responsibility of the Second Injury Fund. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000).

First, both parties agree that the November 16, 2007, accident resulted in permanent disability to employee's body as a whole. Second, they also agree that employee is now permanently totally disabled, as defined by $\S 287.020 .6$ RSMo. Therefore, the primary issues to be determined are: 1) At the time of the November 16, 2007, accident, did employee suffer from pre-existing disabilities that posed a hindrance and obstacle to his employment or reemployment?; and 2) If employee suffered from such pre-existing disabilities, did the November 16, 2007, accidental injury, considered alone, result in employee's permanent total disability, or was employee rendered permanently totally disabled as a result of the primary injury combining with employee's pre-existing disabilities?

With regard to the first issue, although Dr. Carr provided ratings for employee's preexisting disabilities, Mr. Eldred is the only expert that provided an opinion with regard to whether the pre-existing conditions constituted a hindrance or obstacle to his employment. After personally examining employee and reviewing his medical history, records of past

Improvee: Donald Steck

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medical treatment, and the results of the examination by Dr. Carr, Mr. Eldred concluded that employee's impairments prior to November 16, 2007, were, in fact, vocationally disabling and constituted a hindrance or obstacle to his employment.

Based on Mr. Eldred's uncontradicted opinion, we find that, at the time of the November 16, 2007, accident, employee suffered from pre-existing disabilities that posed a hindrance and obstacle to his employment. Having come to this conclusion, we must now turn to precedent for guidance in evaluating cases involving pre-existing disabilities.

The court in *Kizior v. Trans World Airlines*, 5 S.W.3d 195 (Mo. App. 1999), overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003) set out a step-by-step test for determining Second Injury Fund liability in cases involving pre-existing disabilities:

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 the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund.

*Kizior v. Trans World Airlines*, 5 S.W.3d 195, 200 (Mo. App. W.D. 1999).

In considering employer's liability in isolation, we are not bound by employee and employer's Stipulation for Compromise Settlement in which employee agreed to settle his claim against employer for 28% permanent partial disability of the body as a whole attributable to the November 16, 2007, back injury. However, said agreement does serve as relevant evidence of the nature and extent of the employee's permanent disability attributable to the primary injury. *Totten v. Treasurer of the State of Missouri*, as *Custodian of the Second Injury Fund*, 116 S.W.3d 624, 628 (Mo. App. 2003).

When the administrative law judge considered employer's liability in isolation, he came to the conclusion that the primary injury is solely responsible for employee's permanent total disability. In arriving at said conclusion, the administrative law judge relied heavily on his unsupported finding that employee's restrictions on standing, walking, sitting, and use of narcotic medication are all solely the result of employee's primary injury. Based on Mr. Eldred's testimony, we disagree with the administrative law judge.

Mr. Eldred specifically testified that it is a combination of both employee's back problems and knee problems that contribute to employee's restrictions on standing and

Smithsonian, Inc.

sitting. In addition, Mr. Eldred testified that employee should not "work in extreme hot or cold, specifically based on [the] knee replacement." Mr. Eldred went on to state that employee should not work "around vi