David First v. Grey Eagle d/b/a D & D Distributors, LLP

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006 unless otherwise indicated.

Employee testified he has numerous ongoing symptoms as a result of all of his injuries. Employee sleeps no more than four hours a night. He can stand no more than 10 minutes at a time. His legs often buckle. Climbing stairs causes pressure to both knees. Lifting causes low back pain and overhead activities cause pain in both shoulders. He has decreased strength in both hands.

Employee testified that he can no longer work due to a combination of all of his injuries.

The only expert medical opinion given in this case was that of Dr. Volarich. Dr. Volarich evaluated employee on August 26, 2008. As part of Dr. Volarich's evaluation, he took a history of the primary injury as well as the history of employee's preexisting conditions involving his neck, low back, left knee, face, left hand, right hand, left shoulder, and right shoulder. Dr. Volarich reviewed all medical records pertaining to employee's past and primary injuries. After personally evaluating employee and reviewing all of the medical records, Dr. Volarich opined that employee is "unable to engage in any substantial gainful activity, nor can he be expected to perform in an ongoing work capacity in the future." Dr. Volarich concluded that it is his opinion that employee "is permanently and totally disabled as a direct result of the work related injury of April 19, 2007, in combination with his preexisting medical conditions."

The only vocational expert opinions presented in this case were from Mr. England. Mr. England evaluated employee on March 19, 2009. As part of his vocational assessment, Mr. England took a history from employee, inquired as to his current complaints, reviewed his family and social background, his educational background, his vocational history, performed vocational testing, and inquired as to functional restrictions and limitations. Mr. England stated that employee would not be able to return to his past work and would not be a good candidate for even sedentary to light activities. Mr. England went on to conclude that employee would not be able to successfully sustain any type of work activity on a consistent basis and that his combination of physical problems rendered him totally disabled from a vocational standpoint.

First, there is no question that the primary injury on April 19, 2007, resulted in permanent partial disability to employee. Second, there is no question that employee suffered from preexisting disabilities prior to the primary injury that were a hindrance and obstacle to his employment such that Second Injury Fund liability is triggered. See Messex v. Sachs Elec. Co., 989 S.W.2d 206, 215 (Mo. App. 1999). The only issue concerning this case is the nature and extent of employee's permanent disability resulting from the combination of his primary injury and preexisting disabilities.

Employee contends that the ALJ erred in denying him PTD benefits against the Second Injury Fund. Section 287.020.6 RSMo defines "total disability" as the "inability to return to any employment ...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would

reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

*Gordon v. Tri-State Motor Transit Company*, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).

The testimony of employee, Dr. Volarich, and Mr. England, along with the supporting medical records and reports, are all consistent in showing that employee suffered from numerous preexisting disabilities that posed a hindrance and obstacle to his employment or reemployment, and when combined with this primary injury, result in his permanent and total disability. Dr. Volarich, the only medical expert who testified and/or provided a thorough independent medical evaluation, ultimately concluded that employee is permanently totally disabled. Mr. England, the only vocational and rehabilitation expert who testified and/or provided a vocational assessment, buttressed the opinion of Dr. Volarich and concluded that employee would not be able to successfully return to his past work or be able to successfully sustain any type of work activity on a consistent basis. Mr. England stated that it is a combination of employee's physical problems that render him totally disabled from a vocational standpoint.

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

In spite of all of the aforementioned evidence suggesting that employee is permanently and totally disabled as a result of his primary injury combining with his preexisting disabilities, the ALJ found that Dr. Volarich and Mr. England's conclusions of PTD are "not credible in light of the medical evidence to the contrary." However, the only evidence the ALJ cited "to the contrary" was the fact that after employee's last injury he returned to work for a brief period of time without restrictions and continued to enjoy leisure activities such as golf and motorcycle riding. In looking at the record as a whole, we do not find this evidence persuasive. We find that the ALJ's decision to deny employee PTD benefits is not supported by substantial and competent evidence. Dr. Volarich and Mr. England's opinions regarding the nature and extent of employee's permanent disabilities are supported by the medical records and are not contradicted by any evidence in the record.

For the foregoing reasons, we reverse the ALJ's award and find that employee is permanently and totally disabled as a direct result of the combination of his injuries and his preexisting disabilities.

As previously stated, we adopt and incorporate employee and employer's agreed upon permanent partial disability ratings for the primary injury. Therefore, we find that the primary injury resulted in 22.5% PPD to the right knee, 5% PPD to the left knee, and 12.5% PPD of the body as a whole referable to the low back.

We find that employee reached maximum medical improvement on August 26, 2008 (the date of Dr. Volarich's independent medical evaluation). Therefore, going forward

from August 27, 2008, the Second Injury Fund is liable for the difference between the PTD benefits and the PPD benefits ( $\ 718.87 PTD rate - $\ 376.55 PPD rate) for 94 weeks ( 22.5 % PPD of right knee $=36$ weeks +5 % PPD of left knee $=8$ weeks +12.5 % PPD of the body as a whole rated at the lower back $=50$ weeks). Thereafter, the Second Injury Fund shall be liable for employee's PTD benefit of $\ 718.87 for the remainder of employee's life, or until modified by law.

James S. Haupt, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge John A. Tackes, issued June 16, 2010, is attached and incorporated to the extent it is not inconsistent with this final award.

Given at Jefferson City, State of Missouri, this $\qquad 22^{\text {nd }} \qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: David First

Injury No.: 07-034786

Dependents: N/A

Employer: Grey Eagle dba D\&D Distributors LLP (Settled)

Additional Party: Second Injury Fund

Insurer: Travelers (Settled)

Hearing Date: March 18, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April 19, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant jumped off truck to the ground injuring both knees and his low back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Both knees and low back
14. Nature and extent of any permanent disability: Right knee 22.5\%; Left knee 5\%; BAW 12.5\%
15. Compensation paid to-date for temporary disability: $\quad \ 6,250.75
16. Value necessary medical aid paid to date by employer/insurer? $\ 12,349.39

Employee: David First Injury No.: 07-034786

1. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}
2. Employee's average weekly wages: \ 1,400.00
3. Weekly compensation rate: $\$ 718.87 / \ 376.55
4. Method wages computation: Agreement

1. Amount of compensation payable:

Settled against Employer/Insurer December 2, 2008

$(\ 35,395.70)

1. Second Injury Fund liability: Yes

79.87 weeks of permanent partial disability from Second Injury Fund $\quad \ 30,075.04

TOTAL: $\quad \ 30,075.04

1. Future requirements awarded: None.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: James S. Haupt

Employee: David First

Dependents: N/A

Employer: Grey Eagle d/b/a D\&D Distributors, LLP (Settled)

Additional Party: Second Injury Fund

Insurer: Travelers (Settled)

Hearing Date: March 18, 2010

Injury No.: 07-034786

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

The parties appeared before the undersigned administrative law judge on March 18, 2010 for a final hearing to determine the liability of the Second Injury Fund in the matter of David First (Claimant). Attorney James S. Haupt represented Claimant. Assistant Attorney General DaNiel Cunningham represented the Second Injury Fund. Prior to the hearing, Employer, Grey Eagle d/b/a/ D\&D Distributors, LLP, and Travelers, its Insurer, previously settled with Claimant and did not participate in the hearing.

The parties stipulated to the following:

1. On or about April 19, 2007, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in St. Louis, Missouri.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in St. Louis City.
4. Employer received proper notice of the claim.
5. Claimant filed the claim within the time allowed by law.
6. The average weekly wage at the date of injury was $\ 1,400.00, resulting in the maximum compensation rates of $\ 718.87 for temporary total disability (TTD), and $\ 376.55 for permanent partial disability (PPD) and permanent total disability (PTD).
7. Employer paid TTD of $\ 6,250.75, representing a period of time from May 22, 2007 to August 1, 2007, or $85 / 7 weeks; and medical expenses totaling \ 12,349.39.

There are two issues:

1. What is the nature and extent of Claimant's disability?; and
2. What is the liability of the Second Injury Fund?

All evidence was reviewed but, only evidence necessary to support the award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

Claimant offered the following exhibits, which were received into evidence without objection:

A. Stipulation for Compromised Settlement and medical records

B. Deposition of Dr. Volarich (February 5, 2010)

C. Deposition of Mr. England (November 24, 2009)

The Second Injury Fund did not offer any additional exhibits.

1. Claimant worked over thirty years for Employer as a draft beer driver. He worked full time delivering beer kegs locally in the St. Louis area. He is a high school graduate with no skilled or specialized training other than his work with Employer. Claimant's work is physically intensive requiring the delivering and stocking of beer using a two wheel cart or dolly. He used both upper and lower extremities including his back to complete his work. At times this required lifting the kegs over his head. At the time of the hearing, Claimant was 5' 11" tall and weighed 221 pounds. He estimates that he weighs about 10 pounds more than what he weighed on his last day of work on August 10, 2007.
2. On April 19, 2007, Claimant injured his low back and both knees when he jumped several feet off the back of his delivery truck landing on the ground. Claimant felt pain in his back and knees which he reported. He received medical care as described in Exhibit A. He was initially treated at Concentra but was referred for more treatment because of ongoing pain. He eventually had surgery in May, 2007 on his right knee. On July 11, 2007, Dr. Kraus, a treating physician, released Claimant to return to regular duty without restriction. On December 20, 2007, an MRI revealed disk protrusion and a partial tear at L4-5. He

received epidural steroid injections to the low back shortly thereafter. Claimant continues to have problems with each of the body parts injured on April 19, 2007. In August, 2008 he was evaluated by Dr. Volarich for the injuries related to his last injury.

1. Claimant settled the workers' compensation claim arising out of the last accident against the Employer for a lump sum settlement of $\ 35,395.70 representing 22 % of the right knee, 5 % of the left knee, and 12.5 % of the BAW referable to the low back. The Treasurer of Missouri as custodian of the Second Injury Fund (SIF) was not a party to this agreement.
2. Claimant continues to complain of radiating low back and bilateral knee pain. At the time of his release to return to work at maximum medical improvement, Claimant was not under any restrictions from a treating physician. Before his last injury, Claimant had multiple pre-existing injuries to other body parts.
3. Prior to the last injury, Claimant had the following disabling injuries or conditions:

a. In 1966 Claimant sustained an injury to his face playing basketball for which open reduction internal fixation surgery was performed to the right mallar bone and right zygomatic bone. Claimant was examined by Dr. Richard Rainey in 1993 and rated at 25 % BAW. He complains of ongoing numbness and tingling in the cheek and lips with pain and aching in head from the injuries.

b. On February 14, 1992, while working for Employer, Claimant injured his right shoulder. He had surgery April 14, 1993 to repair a torn labrum. He continues to complain of right arm and shoulder pain and tightness and decreased range of motion. Claimant settled the workers' compensation claim arising out of the injury against the employer for 28 % of the right shoulder and against the SIF for 25 % BAW for preexisting facial injuries (1966).

c. On December 31, 1992 Claimant sustained an injury to his right hand when a $1 / 2$ barrel fell on it at work. Claimant was given an injection. He developed right hand atrophy. A nerve block was performed which developed into Reflex Sympathetic Distrophy (RSD) in the right hand. The claim was settled against Employer for 30\% PPD to the right hand. Claimant continues to complain of pain, aching, loss of strength, shooting pain, and changes in pain intensity with weather.

d. On July 30, 1998 Claimant slipped on a wet floor at work and fell injuring his lumbar and cervical spine. Claimant received medical care as described in Exhibit A. He continued to have problems in his low back and neck. The claim against the Employer was settled for 12.5 % PPD of the BAW referable to the low back and 2.5 % PPD referable cervical spine. The claim was settled concurrently with the SIF for

pre-existing conditions to right hand (30\%), right shoulder (28\%) and BAW (25\%) for facial injuries.

e. On January 7, 1999, Claimant injured his left shoulder at work when a bay door he was opening jammed. He was treated conservatively with an injection and pain medication. He continues to complain of pain. The claim was settled against the Employer for 15 % of left shoulder. The claim was settled concurrently with the SIF for the following pre-existing injuries: 12.5 % BAW referable to the lumbar spine; 30 % for right hand; 28 % for the right shoulder; and 25 % BAW for facial injuries.

f. On April 27, 2000, Claimant injured his left knee at work while climbing down a ladder. Initially he received conservative care at Concentra but underwent surgery when symptoms persisted. On May 16, 2000, Dr. Gross performed left knee medial meniscectomy to repair a tear. Claimant had physical therapy and returned to work but continued to complain of left knee pain, crepitus, and decreased range of motion including increased discomfort with bending, squatting and stooping. The claim was settled against the Employer for 25 % PPD of left knee; The SIF settled at the same time for pre-existing disability of 15 % of left shoulder; 12.5 % BAW low back; 30 % right hand; 28 % for the right shoulder; and 25 % BAW (facial).

g. On January 31, 2002, Claimant injured his low back arising out of an in the course of his employment when he slipped on a step and fell on his low back at a pizza parlor. Initially he was treated at Concentra for low back pain. An MRI was performed but surgery was not recommended. Several months of physical therapy was prescribed before Claimant was released to return to work. He continues to complain of low back pain which he believes was made worse by this injury. The claim was settled against the Employer on January 31, 2002 for 12.5\% PPD of the body as a whole (BAW) at low back. The SIF was settled concurrently for preexisting injuries including 25 % PPD at the left knee; 15 % left shoulder; 12.5 % BAW for the low back; 30 % right hand; 28 % right shoulder; 25 % BAW (facial).

h. On August 1, 2005, Claimant while in the employ of Employer experienced an occupational disease, i.e. repetitive trauma, to both hands. The symptoms were not serious enough according to the nerve conduction study to warrant surgery. The claim was settled against the Employer for 10 % of both right and left hands. The claim against the SIF was dismissed. Claimant had pre-existing PPD to the right hand of 30 %. Claimant continues to complain of numbness, weakness, and tingling in both hands.

i. On February 10, 2006, Claimant injured his left shoulder at work when placing empty barrels in a truck. He was initially treated at Concentra. He received an epidural steroid injection and MRI on his left shoulder. Surgery was performed on

October 9, 2006 at Des Peres Hospital for a labrum tear, rotator cuff tear, and decompression. Claimant continued to have problems with physical therapy and experienced significant loss of range of motion. A second surgery on the left shoulder was performed on January 12, 2007 followed by more physical therapy. Under anesthesia, the shoulder was manipulated to unfreeze the shoulder for better range of motion. The claim settled against the Employer for 30 % of left shoulder. The claim settled concurrently against the SIF for 12.5 % PPD of BAW for low back; left knee; 15 % PPD left shoulder; 12.5 % PPD of BAW low back; 30 % of the right hand; 28 % of the right shoulder; and 25 % BAW (facial).

1. Claimant last worked for the Employer in August, 2007. He retired effective August 10, 2007 because he found the work too difficult given all his aches and pains. At the time of his retirement, he was under no physical restrictions from a treating physician. Claimant developed nodules in his left hand but the condition was diagnosed as a non work related Dupuytren's contracture.
2. Claimant continues to ride his motorcycle but complains of stiffness in his back and legs if he rides for more than an hour. He also plays golf but complains of soreness in his left arm the day after.
3. Claimant currently complains of pressure in his knees which is greater the more he walks, stands, or uses stairs. Claimant is able to bend, twist, pull, lift, and climb but prolonged activity is difficult. Toward the end of his career with Employer, Claimant estimates that he missed about six days a year because of pain.
4. Claimant's testimony regarding his physical limitations are found to be exaggerated and therefore given the weight they are due in this decision. The complaints are not consistent with his treating physician's restrictions, the medical records, or his social activities.

1. The injuries described in enumerated paragraph 5 above were evaluated by Dr. Volarich on August 26, 2008 when he performed an IME at Claimant's request. Dr. Volarich opined that Claimant is permanently and totally disabled as a result of his April 19, 2007 work injuries in combination with his pre-existing medical conditions. He found the preexisting injuries were a hindrance or obstacle to Claimant's employment/re-employment.
2. Dr. Volarich examined Claimant, took a history, and issued a report. He found Claimant sustained an accident arising out of and in the course of employment on April 19, 2007 that resulted in injury to Claimant. He provided the following ratings of permanent partial disability:

a. With respect to the primary injury: 25 % of the BAW at the lumbosacral spine; 35 % of the right knee, and 10 % of the left knee.

b. With respect to the preexisting disabilities, which constitute a hindrance or obstacle to employment/re-employment:

i. 25 % PPD of the BAW at the lumbosacral spine due to chronic lumbar syndrome secondary to degenerative disk disease at L4-5.

ii. 25 % PPD of the left lower extremity at the knee.

iii. 50 % PPD of the left upper extremity of the shoulder due to internal derangement.

iv. 25 % PPD of the right upper extremity of the shoulder due to labral tear and impingement.

v. 47.5 % PPD of the right upper extremity at the wrist due to signs of carpal tunnel syndrome, torn TFCC, torn radio carpal ligaments and fracture.

vi. 32.5 % PPD of the left upper extremity at the wrist due to signs of carpal tunnel and navicular fracture.

1. On March 19, 2009, Claimant was seen by vocational expert James England, for an evaluation. Mr. England opined that Claimant was unable to return to his work with the Employer and would not be a good candidate for sedentary work or any work on a consistent basis. He based his opinion on Claimant's complaints of lack of sleep, and trouble with standing, sitting and walking. No vocational rehabilitation was recommended by Mr. England who concluded Claimant is totally disabled.

A claimant in a worker's compensation proceeding has the burden of proving all elements of his claim to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo.App. E.D.2008). In order for a claimant to recover against the Second Injury Fund for PTD or PPD, he must prove that a pre-existing disability combined 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 pre-existing disability combined with the disability from the subsequent injury to create permanent total disability. Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App. E.D. 1999), citing Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-178 (Mo.App. 1995); Uhlir v. Farmer, 94 S.W.3d 441, 444 (Mo.App. E.D. 2003).

Claimant must also prove that he had a pre-existing permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to his employment

or reemployment should he become unemployed; and (3) equals a minimum of 50 weeks of compensation for injuries to the body as a whole or 15 % for major extremities. Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo.App. E.D. 2008)(Citations omitted).

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

Following an accident at work on April 19, 2007, Claimant received conservative treatment for his low back and left knee, and arthroscopic surgery was performed on his right knee. Physician restrictions limited the activities Claimant was to perform prior to being placed at MMI. When released, he was released with no restrictions to his normal work duties. After being released and returning to work without restrictions. After some time, Claimant made a decision to retire after thirty plus years of work. At the time of his retirement, no treating physician had diagnosed Claimant as being permanently totally disabled. Claimant's employment with Employer did not end because he could not return to work when released but because he chose to retire. Claimant could have continued to work but opted to retire instead.

Between the period of his last pre-existing condition and his last injury in 2007, Claimant was able to perform his work duties without any help and without any physician restrictions. He worked full time in a physically demanding position despite his multiple pre-existing injuries. Permanent Total Disability is the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of his last injury. §287.020.7. Claimant not only returned to employment following his last injury, but he was able to return without restriction to the employment in which he was engaged at the time of the injury.

Dr. Volarich and Mr. England's conclusion of PTD is not credible in light of the medical evidence to the contrary. I find those conclusions are contrary to the weight of the medical evidence. Claimant was not under any restrictions from a treating physician immediately prior to his last accident. The injuries from the last accident to his knees and low back were not totally disabling and Claimant was able to return to work after treatment. He also continued to enjoy leisure activities of golf and motorcycle riding. The competent and substantial evidence does not indicate that Claimant is permanently and totally disabled as a result of his last accident or as a result of a combination of his last accident and pre-existing injuries. I find Claimant is not permanently totally disabled. The Second Injury Fund is not therefore liable for PTD benefits.

The Fund is liable however for PPD benefits if the pre-existing injuries and the last injury combine in such a way that the disability is greater than the simple sum of those injuries. I find Claimant's primary injuries to his right knee and low back meet threshold to reach Fund liability. These injuries combine with pre-existing low back injuries from 1998 and 2002 along with other

upper body conditions and injuries to cause a greater disability than the sum of those injuries combined. In consideration of the nature and extent of the injuries, I find a load factor of 22 % is appropriate. Injuries which do not reach the threshold for Fund liability, i.e. 50 weeks for the body as a whole or 15 % of a major extremity, are not considered in the calculation. The disability percentages assigned by experts or included as part of prior settlements are instructive but not binding. With regard to Claimant's percentage of disability I find the following:

1. Claimant sustained a compensable last injury which resulted in permanent partial disability equivalent to 22.5 % of the right knee ( 36 weeks); 5 % of the left knee; and 12.5 % BAW referable to the low back ( 50 weeks).

Total weeks of disability from primary: 86

1. As of the time the last injury was sustained, Claimant had the following preexisting permanent partial disabilities, which meet the statutory thresholds to reach Fund liability and constitute a hindrance or obstacle to employment or reemployment:

a. 30 % of the left shoulder ( 69.6 weeks).

b. 12.5 % of the BAW (low back) ( 50 weeks).

c. 25 % of the left knee ( 40 weeks).

d. 30 % of the right hand ( 52.5 weeks).

e. 28 % of the right shoulder ( 64.96 weeks)

Total weeks for preexisting disabilities: 277.06

1. The credible evidence establishes that the combined disability resulting from the last injury and the pre-existing injuries is greater than the sum of those combined. In consideration of the injuries I find a load factor of 22 % is appropriate. The Second Injury Fund is therefore liable for an additional 79.87 weeks of PPD or $\mathbf{\$ 3 0 , 0 7 5 . 0 4}$.

The Second Injury Fund is not liable for Permanent Total Disability benefits. The Fund is however liable to Claimant for $\$ \ 30,075.04 in permanent partial disability benefits. Attorney for Claimant shall be entitled to an attorney fee of 25 % of this award.

This award is dated and attested to as of this $\qquad day of \qquad$ , 2010.

Naomi Pearson

Division of Workers' Compensation