| FINAL AWARD DENYING COMPENSATION |
| Injury No.: 03-042139 |
| Employee: | Michael Hutson |
| Employer: | Ultimate Electronics, Inc. (Settled) |
| Insurer: | Liberty Mutual Fire Insurance Co. (Settled) |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award of the ALJ dated January 21, 2011, by issuing a separate opinion denying compensation in the above-captioned case. |
| Preliminaries |
| Employee settled his claim against employer and proceeded to final hearing against the Second Injury Fund. The ALJ heard this matter to consider the nature and extent of any Second Injury Fund liability.The ALJ found that employee’s claim against the Second Injury Fund is denied because employee’s alleged preexisting disabilities do not meet the appropriate threshold for Second Injury Fund liability.Employee appealed to the Commission alleging that the ALJ erred in denying him enhanced permanent partial disability benefits against the Second Injury Fund.The only issue currently before the Commission is the nature and extent of any Second Injury Fund liability. |
| Findings of Fact |
| The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are incorporated and adopted by the Commission herein.Employee was deposed in February 2006. During said deposition, employee apparently provided testimony regarding his prior right shoulder injury. This February 2006 deposition was not admitted as evidence in this case. |
| Conclusions of Law |
| The ALJ’s conclusion that employee’s preexisting right shoulder disability does not meet the appropriate threshold for Second Injury Fund liability was based primarily on a |
[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2002 unless otherwise indicated.
finding that employee is not credible. However, the only basis the ALJ had for finding employee incredible were alleged discrepancies between employee's trial testimony and his testimony from the February 2006 deposition.
We find that the ALJ erred in relying on employee's February 2006 deposition testimony because it was not made part of the record. Evidence not admitted or made part of the record cannot be considered or relied upon.
Despite the aforementioned, we still agree with the ALJ's ultimate conclusion that employee's claim against the Second Injury Fund should be denied. However, we find that employee's failure to prove all material elements of his claim is the proper basis for denial.
To establish a claim for enhanced permanent partial disability against the Second Injury Fund an employee must show that a preexisting partial disability combined with a disability from the primary injury to result in a greater disability than that which would have resulted from the last injury by itself. See Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App. W.D. 2004).
In this case, employee provided no evidence establishing that primary disabilities and the disability from his preexisting shoulder injury combine to produce substantially greater overall disability than the simple sum.
Because the burden is on employee to prove all material elements of his claim, including Second Injury Fund liability, and because there is no evidence of how the primary injury combines with the alleged preexisting conditions, we find that employee has not met his burden of proving Second Injury Fund liability.