Jamey Blake v. Leo O'Laughlin, Inc.

On May 21, 1993, employee sustained a closed-head injury in a motor vehicle accident. Employee was diagnosed with a seizure disorder and prescribed Dilantin, which he took for one year. Because he feared he wouldn't be able to pass a DOT physical with his seizure condition, employee spent five years driving locally as a dump-truck driver after the May 1993 accident. Dr. Rope opined that, given that employee's occupation involves constant driving, if an employer learned that employee had seizures, employee's seizure disorder definitely would constitute a hindrance and obstacle to employment. Dr. Rope explained that he did not provide a disability rating in connection with this condition because he did not have sufficient information on the seizure disorder at the time of his evaluation.

We find Dr. Rope credible. We find that employee suffered a preexisting permanent partial disability of 20 % of the low back and that employee's low back and seizure conditions constituted hindrances or obstacles to employment.

Employee, 45 years old at the time of the hearing in this matter, worked his entire adult life as a truck driver, until September 23, 2004. On that date, employee was reentering his truck after fueling at the Flying J Truck Stop in Kansas City when he slipped on the steps and fell. As employee fell, his right arm was caught and twisted in the "handle bar," a large handle used to climb into the cab of the truck. Employee felt a pop or snap and experienced ongoing pain in his right shoulder and low back.

Employee was first seen in connection with the accident at Scotland County Memorial Hospital, where he was referred to Dr. William Dixon. An MRI showed severe degenerative disc disease at the L5-S1 level with a bulging disc and mild to moderate bilateral foraminal encroachment. On January 26, 2006, Dr. Lowry Jones diagnosed aggravation of a preexisting degenerative disc process and recommended surgery. Dr. Jones also diagnosed impingement in employee's right shoulder and recommended physical therapy or an injection. Dr. Jones opined that employee could not return to work as a truck driver with the level of pain he was experiencing. Employee testified that treating doctors recommended surgery but he declined to go that route due to concerns that doctors could not guarantee a favorable result.

Dr. Rope diagnosed the following injuries in connection with the September 23, 2004, accident: right shoulder impingement with residual loss of motion, pain, and mild weakness; and low back discomfort with probable protrusion at L5-S1 and bilateral lumbar radiculopathy, more pronounced on the right side. Dr. Rope assigned the following restrictions (specifying that they were predominately in light of the combination of the September 23, 2004, injury with employee's prior back condition): no sitting, standing, or walking in excess of 15 minutes, occasional lifting of no more than 10 pounds, and use of a cane while employee is on his feet. Dr. Rope opined that employee will likely be unable to return to driving in any degree, given his inability to sit for protracted periods.

In his brief and argument, employee failed to provide us any indication of when he reached maximum medical improvement following the work injury. Nor did employee elicit an opinion as to the date of maximum medical improvement from his medical expert. As a result, we were obliged to search the un-indexed medical record in an

effort to find evidence to aid our analysis as to this crucial fact. From our review, it appears that the last treatment employee received for symptoms related to the injuries of September 23, 2004, was to undergo an MRI of the lumbar spine and thoracic spine through Northeast Regional Medical Center on April 18, 2007. We find that employee reached maximum medical improvement from the work injury on April 18, 2007, the last day he treated for symptoms related to the injuries of September 23, 2004.

Dr. Rope opined that employee sustained a 15\% permanent partial disability at the 232 week level in connection with the right shoulder injury, and a 25 % permanent partial disability of the body as a whole in connection with the low back injury. We find Dr. Rope credible and adopt his diagnoses and ratings.

Other than working without pay for his girlfriend for about one year, which involved minimal duties such as occasionally operating a cash register or moving small, light boxes and figurines, employee has not worked since September 23, 2004.

With regard to employee's ability to work following the September 23, 2004, accident, Dr. Rope opined that employee is permanently and totally disabled due to the sequelae from that accident combined with employee's preexisting disabling conditions.

The vocational expert Terry Cordray evaluated employee at the request of his attorney. Mr. Cordray opined that employee is permanently and totally disabled due to a combination of his injuries sustained on September 23, 2004, and his preexisting back and seizure conditions.

The Second Injury Fund did not present any contrary expert medical or vocational evidence. We find Dr. Rope and Mr. Cordray credible. We find that employee is permanently and totally disabled due to the combination of employee's preexisting disabling low back and seizure conditions and his injuries sustained in the accident on September 23, 2004.

Section 287.220 RSMo, creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "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 ..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Enusley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

We are convinced that employee's preexisting disabilities were serious enough to constitute hindrances or obstacles to employment for purposes of $\S 287.220$ RSMo. Employee provided evidence of a preexisting low back injury and seizure condition. Each of these conditions had the potential to combine with future work-related injuries so as to cause greater disability than would have resulted in the absence of these conditions. Dr. Rope rated employee's preexisting back disorder at 20\% permanent partial disability of the body as a whole and opined that employee's seizure disorder was a hindrance or obstacle to employment, and we have found Dr. Rope credible. We conclude that at the time he sustained the September 23, 2004, work injury, employee suffered from a low back disability and a seizure condition, both of which constituted hindrances or obstacles to employment or reemployment.

We now proceed to the question whether employee met his burden of establishing entitlement to compensation from the Second Injury Fund. Section 287.220.1 RSMo, provides, in relevant part, as follows:

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, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...

The foregoing section requires us to first determine the compensation liability of the employer for