The dispositive issue in this matter is whether employee met his burden of proving his entitlement to either permanent partial or permanent total disability benefits from the Second Injury Fund stemming from the alleged combination of his many preexisting disabling conditions with a primary injury by accident to his low back on April 9, 2002, or alternatively, an occupational disease to the low back up through August 8, 2002. 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."
For the Fund to be liable for permanent total disability benefits, employee must establish that: (1) he suffered from a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). The present claim was heard together with employee's claim for a later-in-time injury. Both of employee's experts included the later-in-time injury in their opinion that employee is permanently and totally disabled. Dr. Poetz was specifically asked whether the low back injury combined with any preexisting disability to render employee permanently and totally disabled. Dr. Poetz reiterated his opinion that it was all of employee's preexisting conditions and injuries (including the later-intime injury) that rendered employee permanently and totally disabled. Gary Weimholt, employee's vocational expert, also lumps the primary injury together with later-in-time injuries as well as employee's preexisting conditions in reaching his opinion that employee is permanently and totally disabled. Employee testified that he thinks he is unable to work at all and described his limitations related to his back, but did not indicate which, if any, of his preexisting conditions he thinks combines with his back to render him permanently and totally disabled.
Where the uncontested expert testimony does not support a finding that employee is permanently and totally disabled due to any combination of the back injury with employee's preexisting conditions, and where employee's testimony likewise does not provide a basis for such a finding, we are persuaded that employee has failed to meet his burden of proving he is entitled to permanent total disability benefits from the Second Injury Fund in this matter. We find that employee is not permanently and totally disabled due to any combination of his primary low back injury and his preexisting conditions.
For the Fund to be liable for permanent partial disability enhancement benefits, employee must establish that the combination of the preexisting disability with the disability from the primary injury results in a greater disability than the sum of the two disabilities. See § 287.220 RSMo. Employee offers the opinion of Dr. Poetz in support of his claim (Mr. Weimholt does not address the issue of permanent partial disability enhancement). But Dr. Poetz merely rendered his conclusory opinion that the "present and prior" disabilities combine to enhance employee's overall permanent partial
disability, without identifying which of employee's many preexisting conditions or the multiple primary injuries combine, let alone how they combine. Conclusory expert opinions that fail to provide any legitimate, persuasive explanation are generally insufficient to meet an employee's burden of proof. See Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 378 (Mo. App. 2006). Here, the problem with Dr. Poetz's combination opinions is that his report lacks any explanation or basis for them, and his relevant testimony consists almost entirely of monosyllabic responses to a series of ponderous leading questions. This evidence is not useful or persuasive and ultimately we find Dr. Poetz's opinion lacking credibility because we are unable to discern the basis for or the meaning of his opinions.
As employee recognizes in his Application for Review, this case presents medically complex issues. We are convinced that where the existence, nature, and extent of any combination of employee's low back problems with any of his many preexisting disabilities is not plainly within the realm of lay understanding, Dr. Poetz's lack of credibility (and Mr. Weimholt's failure to address the issue) is fatal to employee's claim for permanent partial disability enhancement from the Second Injury Fund. We find that any disability resulting from the primary low back injury does not combine with any preexisting disability to render employee more disabled than the sum of the two disabilities.
Given the foregoing findings, we conclude that employee failed to meet his burden of proving his entitlement to either permanent partial or permanent total disability benefits from the Second Injury Fund. All other issues are moot.