Carolyn Jones v. Missouri Western State College

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact on the disputed issues. We have incorporated those findings to the extent that they are not inconsistent with the modifications set forth in our award. Therefore, we address only those findings of fact pertinent to our modification herein.

In 2002, a drunk driver crashed into employee's vehicle, leaving her with injuries to her cervical spine including herniated discs at C5-6 and C6-7 and spinal stenosis. Conservative measures failed to relieve employee's symptoms but doctors advised against surgery due to employee's obesity. Employee experiences constant neck pain and radicular symptoms and can't do any overhead work or lifting.

On March 26, 2004, employee tripped and fell at work and injured both arms, her left knee, and right shoulder. The accident also aggravated employee's cervical spine injury. We consider the administrative law judge's finding of 25 % permanent partial disability of the body as a whole a fair and reasonable rating of the permanent disability resulting from the primary injuries and do not disturb it herein.

Employee failed, in both her Application for Review and her brief, to identify the date she reached maximum medical improvement or to direct us to any evidence on the issue. It appears the last day employee received treatment connected with the March 2004 accident was July 25, 2008, when she saw Dr. DePriest for follow-up in connection with her bilateral carpal tunnel surgeries. We find employee reached maximum medical improvement on July 26, 2008.

Dr. P. Brent Koprivica testified for employee and opined that employee suffered preexisting permanent partial disability of 12.5 % of the body as a whole referable to obesity, and that this condition constituted a hindrance or obstacle to employment. We find this opinion and rating credible and adopt it. Dr. Koprivica also credibly opined that employee remains in need of future medical care in connection with the injuries she sustained in the accident of March 26, 2004. We find that employee remains in need of future medical care from the effects of the primary injuries.

Dr. Koprivica believes employee is permanently and totally disabled due to the combination of her preexisting disabling conditions and the effects of the primary injuries. Mary Titterington, who offered her expert vocational opinion for employee, agreed. Neither the employer nor the Second Injury Fund offered testimony from any expert to contradict the findings of Dr. Koprivica and Ms. Titterington on the issue of permanent total disability.

Faced with this record, it appears to us the administrative law judge inappropriately substituted his own opinions for those of the experts when he found that employee's obesity could not be considered because it was "self-inflicted." We find no basis in the

Injury No.: 04-028875

Employee: Carolyn Jones

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law or the facts of this case for the administrative law judge's findings on this issue. To the contrary, it is well-established that obesity can be a permanent disability and—where the uncontested expert opinions so establish—it cannot be ignored when resolving the issue of permanent total disability. See *Garibay v. Treasurer of Mo. as the Custodian of the Second Injury Fund*, 964 S.W.2d 474, 480 (Mo. App. 1998). Accordingly, we specifically disclaim the administrative law judge's findings—and his gratuitous remarks—as to claimant's obesity, its causes, its permanency, and its effect on her permanent total disability. And, because we discern no basis for rejecting the uncontradicted expert opinions from Dr. Koprivica and Ms. Titterington, we credit their opinions and find that employee is permanently and totally disabled due to the combination of her preexisting disabling conditions and permanent disability resulting from the primary injuries.

We conclude employee has met her burden on the issue of future medical treatment. Section 287.140.1 RSMo provides, as follows:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

We have credited Dr. Koprivica's opinion that employee will need future medical treatment as a result of her work injuries sustained on March 26, 2004. Accordingly, we conclude that employer is liable for any future medical treatment that may reasonably be required to cure and relieve from the effects of the work injury.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that she suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ..." *Id.* The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment:

> [T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

*Knisley v. Charleswood Corp.*, 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

We are convinced that employee's preexisting disabilities were serious enough to constitute hindrances or obstacles to employment for purposes of § 287.220 RSMo. We have adopted the administrative law judge's findings that employee suffered preexisting disability of 15 % of the body as a whole referable to her lumbar spine, 12.5 % referable to her cervical spine, and 20 % referable to her coronary artery disease. In addition, we have found employee suffered preexisting disability of 12.5 % of the body as a whole referable to obesity, and credited Dr. Koprivica's opinion that this condition constituted a hindrance or obstacle to employment. Accordingly, we conclude that at the time she sustained the primary injuries in this matter, employee suffered from preexisting permanent partial disabilities referable to her cervical spine, coronary artery disease, and obesity, and that each of these conditions constituted hindrances or obstacles to her employment or reemployment.

We now proceed to the question whether employee met her burden of establishing entitlement to compensation from the Second Injury Fund. Section 287.220.1 RSMo provides, in relevant part, as follows:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, $\ldots$ the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...

The foregoing section requires us to first determine the compensation liability of the employer for the last injury, considered alone. If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, and not the Second Injury Fund, is responsible for the entire amount of compensation. See ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). We have found that, as a result of the last injury, employee sustained a 25 % permanent partial disability of the body as a whole. Dr. Koprivica and Ms. Titterington agreed that employee is permanently and totally disabled as a result of the permanent disability resulting from her work injuries in combination with employee's preexisting conditions of ill, and we have found these experts credible. We conclude that employee did not sustain enhanced permanent partial disability, but rather that employee is permanently and totally disabled due to a combination of her preexisting disabilities in combination with the effects of the primary injuries.

In sum, we are persuaded that employee has met her burden of establishing Second Injury Fund liability for permanent total disability under § 287.220.1. The Second Injury Fund is liable for permanent total disability benefits.

We modify the award of the administrative law judge on