with the employment and to have flowed from that source as a rational consequence.
- An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor.
Missouri Courts have isolated the crucial elements of an occupational disease claim.
In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort.
Claimant must also establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the workplace. Claimant must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." However, such conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. A single medical opinion will support a finding of compensability even where the causes of the disease are indeterminate...
As a general rule, disability sustained by the aggravation of a preexisting nondisabling condition or disease caused by a work-related accident is compensable even though the accident would not have produced the injury in a person not having the condition...
Aggravation of a preexisting disease or infirmity caused by nonaccidental conditions of employment is compensable as either an accident or as an occupational disease. Aggravation of a preexisting disease or infirmity caused by repetitive trauma is compensable as either an accident or as an occupational disease.²
Dr. Koprivica testified the workplace exposure was a substantial contributing factor in aggravating employee's multiple-joint, degenerative osteoarthritis. Dr. Koprivica identified pushing the heavy buggies as the work exposure that caused the exacerbation of the
² Kelley v. Banta & Stude Constr. Co., 1 S.W.3d 43, 49 (Mo. App. 1999).
Injury No.: 03-145626
Improvee: Charles Michael Angus
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osteoarthritis. The buggies weigh between 600 pounds and 1000 pounds. Dr. Koprivica testified that pushing the buggies applied an unusual whole body stress that was unique to employee's job.
Employee has established through the testimony of Dr. Koprivica that he suffered a compensable aggravation of his osteoarthritis.
**Permanent Disability/Primary Injury**
In his report, Dr. Koprivica offers his opinion that "[s]eparate from the rheumatoid arthritis, based on the progressive aggravating injury from the exposure to risk at work, I would assign a twenty-five (25) percent permanent partial disability to the body as a whole. I would clearly point out that I would not consider Mr. Angus' work place exposure to be totally disabling, considered in isolation, in and of itself."
The only other evidence bearing on the extent of employee's permanent partial disability from the primary injury is the Stipulation for Compromise Settlement entered into between employee and employer/insurer, wherein the parties settled the claim for the approximate permanent disability of 18% of the body as a whole.
The testimony of Dr. Koprivica regarding the extent of employee's permanent partial disability is entitled to greater weight than the disability percentage reached through compromise and settlement. Based upon the foregoing, we find that employee sustained a 25% permanent partial disability as a result of the aggravation of his degenerative arthritis due to the repetitive trauma he experienced while working.
Based upon the testimony and report of Dr. Koprivica, we find that employee reached maximum medical improvement from his primary injury on May 11, 2004, the date Dr. Whitley first reported that employee was permanently and totally disabled.
The parties stipulated that employee's permanent partial disability rate is 347.05 per week and his permanent total disability rate is 454.67 per week.
**Second Injury Fund Liability**
Having determined that employee sustained only a permanent partial disability attributable to his work injuries, we must consider the nature and extent of the Second Injury Fund's liability.
"Section 287.220 creates the Second Injury Fund and sets forth when and the amount of compensation that shall be paid from the fund in 'all cases of permanent disability where there has been previous disability.'"3 "In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself."4
3 Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000) (citations omitted).
4 Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004) citing Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 (Mo. App. 2001).
"Liability of the Second Injury Fund is triggered only 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained." ${ }^{5}$ To implicate the Second Injury Fund, the employee must have an actual and measurable preexisting disability at the time the work injury is sustained of such seriousness as to constitute a hindrance or obstacle to employment. ${ }^{6}$ "To determine whether a preexisting partial disability constitutes a hindrance or obstacle to the employee's employment, 'the Commission should focus on the potential that the preexisting injury may combine with a future work related injury to result in a greater degree of disability than would have resulted if there was no such prior condition." ${ }^{7}$
Dr. Koprivica testified that employee suffered from a preexisting permanent partial disability of 50 % of the body as a whole attributable to employee's rheumatoid arthritis. Dr. Koprivica noted that before September 2003, the symptoms of employee's rheumatoid arthritis should have restricted him from moving the heavy buggies he pushed in his job. The deformity of his fingers prevented employee from performing repetitive fine dexterity tasks with his hands. Employee was restricted to performing regular work for only 3-5 hours per day with light duty activities filling the remainder of his work day. Based upon the above work restrictions, we find that employee's preexisting rheumatoid arthritis constituted a hindrance and obstacle to employee's employment or reemployment.
Dr. Koprivica testified that when you combine employee's disability from the rheumatoid arthritis with his disability from the work aggravation of his degenerative osteoarthritis, the disabilities combine synergistically to render employee permanently and totally disabled. Dr. Koprivica specifically stated in his report that employee would not be totally disabled considering only the disability related to employee's work-related degenerative arthritis. Based upon Dr. Koprivica's opinions as summarized above, we find employee is permanently and totally disabled due to the combination of his preexisting disability with the disability from his aggravated work-related degenerative arthritis. The Second Injury Fund is liable for the payment of permanent total disability benefits to employee.