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 clearly based upon prior medical records, medical reports, medical expert testimony, and employee's own testimony, that at the time of her November 22, 2002, injury she had preexisting disabilities resulting from the June 16, 1999, injury that caused a hindrance and obstacle to her 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
Enployee: Jody Durbin
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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 November 22, 2002, injury had there been no preexisting disabilities.
The ALJ concluded that the record supports a finding of 15% permanent partial disability of the left shoulder. We agree. We find that the weight of the evidence supports a finding that Dr. Musich's 25% rating is slightly exaggerated and Dr. Hulsey's rating of 10% is slightly understated. Based upon the medical records, medical reports, medical testimony, employee's testimony, and the record as a whole, we find that employee sustained 15% permanent partial disability of the left shoulder as a result of the November 22, 2002, injury.
- Preexisting Disabilities
With respect to employee's preexisting disabilities suffered as a result of the June 16, 1999, injury, the experts' ratings range from no more than 3% to 50% permanent partial disability of the body as a whole.
We find that the 50% permanent partial disability rating by Dr. Musich is the most unreliable. This opinion was given more than nine years after the injury (October 2008). It in no way reflects employee's history of being able to return to work in December 1999 or the other experts' opinions and records. In addition, this 50% rating is inconsistent with Dr. Musich's own prior rating of 25% permanent partial disability, given in October 2004.
While we find that Dr. Musich's 50% permanent partial disability rating far exceeds employee's actual permanent disability sustained as a result of the June 1999, injury, we also find that Dr. Randolph's rating of "no more than 3% permanent partial disability" and Dr. Wilkey's rating of 6% permanent partial disability do not adequately account for employee's ongoing complaints and restrictions.
We find that in light of the medical records, medical reports, medical testimony, employee's testimony, and the record as a whole that the ALJ's initial finding of 15% permanent partial disability of the body as a whole is fully supported by the competent and substantial evidence. Therefore, we find that at the time of the November 22, 2002, accident, employee suffered from 15% permanent partial disability of the body as a whole.
- Combination
Employee argues that she is permanently and totally disabled as a result of the primary injury combining with her preexisting disabilities. Section 287.020.7 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).
In Dr. Musich's October 2004 report, he very generally concluded that the "combination of the present and past disabilities is significantly greater than their simple sum and will continue to produce a chronic hindrance in her routine activities of daily living." Dr. Musich came to this same conclu