Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." In order to trigger liability of the Second Injury Fund, employee must show the presence of an actual and measurable disability at the time the work injury is sustained and that work-related injury is of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. E. W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App. W.D. 2002), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).
In this case, it is clear based upon prior medical records, medical reports, medical expert testimony, and employee's own testimony that at the time of his July 18, 2005,
Improve: Marion Lamberson
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accident, he had multiple preexisting disabilities that were hindrances and obstacles to his continued employment or reemployment.
In evaluating cases involving preexisting disabilities, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. *Kizior v. Trans World Airlines*, 5 S.W.3d 195 (Mo. App. W.D. 1999), overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). In *Kizior*, the Court set out a step-by-step test for determining Second Injury Fund liability:
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*, 5 S.W.3d at 200.
- Primary Injury
Based upon the steps provided in *Kizior*, to determine employer's liability we must first establish the degree or percentage of disability that resulted from the July 18, 2005, injury had there been no preexisting disabilities.
Dr. Volarich saw employee for an independent medical evaluation on January 7, 2009. With respect to causation, Dr. Volarich opined that the July 18, 2005, work accident was the substantial, as well as the prevailing or primary factor causing employee's right knee chondral injury, the right ankle strain/sprain, as well as the progression of the L5-S1 disc bulge to a herniation causing bilateral lower extremity radicular symptoms that required anterior lumbar fusion with instrumentation at the L5-S1 level.
With respect to employee's permanent disabilities resulting from the July 18, 2005, injury, Dr. Volarich opined that employee sustained 50% PPD of the body as a whole rated at the lumbosacral spine, 25% PPD of the right lower extremity rated at the knee, and 10% PPD of the right lower extremity rated at the ankle.
Dr. Wayne opined that the July 18, 2005, injury resulted in 2% PPD of the body as a whole. Dr. Wayne believes that employee suffered more from degenerative damage to his back than from any traumatic damage from the July 18, 2005, injury. Dr. Wayne does not believe that the primary injury was a substantial factor in employee's need for the December 27, 2006, low back surgery.
Dr. Stillings saw employee for a psychiatric independent medical evaluation on March 24, 2009. Dr. Stillings opined that employee's July 18, 2005, work injury is a substantial factor in causing employee 30\% PPD of the body as a whole referable to his psychiatric disability. Dr. Stillings attributed one-half (15\%) of employee's psychiatric disability to a mood disorder and the other half (15\%) to a pain disorder.
The ALJ found that the July 18, 2005, injury necessitated employee's December 27, 2006, anterior lumbar fusion with instrumentation at the L5-S1 level and, therefore, found employer liable for employee's unpaid medical bills associated with the same. We agree with this finding.
The great weight of the evidence establishes that the accident resulted in a serious injury to employee's lumbar spine. Employee was initially treated conservatively for this injury, but such treatments were unable to relieve his pain. Based upon Dr. Volarich's opinion and the record as a whole, we find that the December 27, 2006, surgery was reasonable and necessary to cure and relieve employee from the effects of the July 18, 2005, injury. As it relates to medical causation, we do not find Dr. Wayne's opinion is supported by the record. Therefore, we agree with the ALJ's finding that employer is liable for the unpaid medical bills associated with employee's December 27, 2006, surgery.
We also agree with the ALJ's findings that as a direct result of the primary injury employee sustained 15\% PPD of the right lower extremity rated at the knee and 10\% PPD of the right lower extremity rated at the ankle. These findings are supported by competent and substantial evidence.
With respect to employee's lower back, the ALJ found that employee has 35\% PPD of the body as a whole referable to his lumbosacral spine. However, without explanation, the ALJ found employer liable for only 25\% PPD of the body as a whole rated at the lumbosacral spine. We find that this was in error. After reviewing the entire record, we find that the ALJ's assessment of 35\% PPD of the body as a whole rated at the lumbosacral spine is supported by competent and substantial evidence. However, we find that because the weight of the evidence suggests that all of employee's lower back problems arose as a result of the primary injury, employer is liable for the entire 35\% PPD of the body as a whole referable to employee's lumbosacral spine.
The ALJ also found employer liable for employee's future medical treatment. We agree with this finding as well.
While the ALJ addressed all of employee's physical disabilities resulting from the primary injury, he neglected to address employee's permanent psychiatric disability resulting from the primary injury. As stated above, Dr. Stillings opined that as a result of the July 18, 2005, work injury, employee sustained 30\% PPD of the body as a whole referable to his psychiatric disability. After reviewing employee's testimony and the record as a whole, we find that a more accurate assessment of employee's permanent psychiatric disability attributable to the primary injury is 15 % PPD of the body as a whole.
In sum, we find that the primary injury considered in isolation caused the following permanent partial disabilities: 35\% PPD of the body as a whole referable to the lumbosacral spine, 15 % PPD of the right l