Ricky Fielder v. NBA

requirements contemplate an unequivocal affirmative finding as to what the pertinent facts are.

**Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529, 533 (Mo. App. 2008) (citations omitted).**

Because the award of the administrative law judge lacks the findings mandated by § 287.460.1 RSMo, we are constrained to issue this supplemental opinion.

The initial inquiry in any case against the Second Injury Fund is the extent of employer's liability for the primary injury. **Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003)** overruled on other grounds by **Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003)**. "[P]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined." *Id.* (citation omitted). The primary claim in this matter is for repetitive trauma injuries to employee's bilateral upper extremities. Treating doctors diagnosed carpal tunnel syndrome and employee underwent carpal tunnel release surgeries in May and November 2006. Employee settled a workers' compensation claim against his employer for 15% of each wrist. Dr. Volarich opined that employee suffered a 35% permanent partial disability of each wrist as a result of the primary injuries, with a 15% multiplicity factor of the body as a whole. We agree with Dr. Volarich that employee suffered permanent partial disability as a result of the primary injuries, but find Dr. Volarich's ratings excessive; employee's limited testimony describing lingering discomfort does not convincingly support 35% permanent partial disability ratings for each wrist.

We find employee's settlement with his employer persuasive as to the extent of permanent partial disability employee sustained as a result of the primary injuries. We affirm the administrative law judge's finding that employee suffered 15% permanent partial disability of each wrist as a result of the primary injuries.

In order to establish entitlement to compensation from the Second Injury Fund under § 287.220.1 RSMo, employee must demonstrate that he suffered from a preexisting permanent partial disability which constituted a hindrance or obstacle to employment.

[T]he basis for liability of the Fund is 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.

**Loven v. Greene County, 63 S.W.3d 278, 283 (Mo. App. 2001).**

*Landman* is one of many cases that were partially overruled by **Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)**. We cite other cases herein that were partially overruled by Hampton; because these cases are cited for principles that were not overruled, we make no further mention of Hampton's effect.

Employee has significant lower back problems dating back to 1983, when employee was injured while helping move a television at work. As a result of that injury, employee underwent a total laminectomy at L-5 with an iliac bone graft and fusion from L-4 to S-1. Employee was off work for approximately 4 to 5 years. Employee essentially changed career paths due to the 1983 fusion surgery; employee's limitations precluded him from the types of jobs he had previously done. In order to return to work, employee retrained himself and sought degrees in health care administration so that he could perform sedentary jobs.

Employee credibly testified that he experienced ongoing problems with his back following the 1983 surgery. Dr. Houchin credibly testified that he treated employee from 1988 to the present for back pain related to the 1983 surgery. Employee usually complained of a moderate exacerbation of pain, but occasionally complained of severe pain. Employee used Vicodin for his intermittent back pain. Dr. Volarich opined that employee's preexisting back condition was a hindrance or obstacle to employment at the time of the primary injury; we find Dr. Volarich credible in this regard. Dr. Volarich rated employee's preexisting low back disability at 45 % of the body as a whole, and explained that his rating takes into account employee's chronic back pain syndrome, lost motion, and recurrent lower extremity radicular symptoms.

Given the foregoing, we find that employee's preexisting low back condition amounted to a hindrance or obstacle to employment as of August 18, 2004. Faced with the risk that employee's problematic low back condition might combine with a later work injury to further disable employee, a prospective employer, in the absence of the Second Injury Fund, would have an incentive not to hire employee. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995). We affirm the administrative law judge's finding that employee suffered a 43 % preexisting permanent partial disability of the body as a whole referable to the low back.

Employee injured his right shoulder in 1991 when he fell down some icy steps at work. Dr. Morris performed an intra-articular debridement and arthroscopic subacromial decompression. Employee settled a workers' compensation claim against his employer for 30 % permanent partial disability of the right shoulder. As a result of the 1991 right shoulder injury and surgery, employee continues to feel discomfort and pain in his right shoulder when he lifts heavy objects. Employee treats these complaints with aspirin. Employee can't lift over his head or open jars. Employee has difficulty carrying things with his right hand. Employee also has trouble sleeping on his right side. Dr. Volarich rated employee's preexisting right shoulder disability at 35 %. Dr. Volarich's rating accounts for pain, lost motion, crepitus, and weakness, as well as atrophy in employee's dominant arm. Sherry Browning, the Second Injury Fund's vocational expert, acknowledged that employee's shoulder condition was a hindrance and obstacle to employee's returning to work as a nurse or another physically demanding job. Dr. Volarich opined that employee's preexisting right shoulder disability was a hindrance or obstacle to employment at the time of the primary injury; we find Dr. Volarich credible in this regard.

Given employee's credible testimony, the evidence of his workers' compensation settlement for 30 % permanent partial disability of the right shoulder, and Dr. Volarich's credible testimony, we find that employee suffered from a preexisting right shoulder disability that was a hindrance or obstacle to employment as of August 18, 2004. We affirm the administrative law judge's finding of a 35 % preexisting permanent partial disability of the right shoulder.

Employee injured his left shoulder on June 5, 1997. Employee underwent surgery in connection with that injury. Employee settled a workers' compensation claim against his employer on March 28, 2000, for 20\% of the left shoulder. As a result of the 1997 left shoulder injury, employee experiences ongoing discomfort, has difficulty lifting items, and experiences pain if he turns his left arm in certain ways. Employee also has difficulty working overhead and is unable to pull out file cabinets above his shoulder. Dr. Volarich opined that employee's 1997 left shoulder injury left him with disability that constituted a hindrance or obstacle to employment; we find Dr. Volarich credible in this regard. Dr. Volarich rated employee's disability at 25 % of the left shoulder. Dr. Volarich's rating accounts for pain, lost motion, crepitus, and weakness.

We find employee's settlement with his employer more persuasive than Dr. Volarich's testimony as to the extent of permanent partial disability employee sustained as a result of the 1997 left shoulder injury. We affirm the administrative law judge's finding that employee suffered a 20 % preexisting permanent partial disability of the left shoulder. We find that employee's left shoulder condition was a hindrance or obstacle to his employment as of August 18, 2004.

We note that employee's vocational expert, James England, admitted on crossexamination that he was not aware of employee missing any work related to his preexisting back and shoulder conditions. We do not find this testimony determinative on the issue whether employee suffered preexisting permanent partial disabilities that were hindrances or obstacles to employment.

The Second Injury Fund statute recognizes that employers have a financial incentive to discriminate against individuals who have a condition which renders them more susceptible to a greater degree of disability compared to workers who have no such condition. That incentive to discriminate is precisely the same whether the condition has previously caused the employee to miss work or not.

Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

We proceed to consider the nature and extent of Second Injury Fund liability.

In cases against the Second Injury Fund for permanent partial disability, § 287.220.1 RSMo, imposes minimum thresholds of fifteen percent permanent partial disability for major extremity injuries, and fifty weeks for injuries to the body as a whole. Both the

Injury No.: 04-095916

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