Larry Calvert v. Noranda Aluminum Incorporated

Enployee: Larry D. Calvert

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considering the liability of the Second Injury Fund. Such an approach has no support in the Missouri Workers' Compensation Law or in Missouri case law. We reject the administrative law judge's reasoning regarding the triggering of Second Injury Fund liability. Our analysis of the operation of the Second Injury Fund thresholds follows.

The purpose of the Second Injury Fund is "to encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury." *Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund*, 126 S.W.3d 386, 390 (Mo. 2004) (citation omitted). The Second Injury Fund statute encourages such employment by ensuring that an employer is only liable for the disability caused by the work injury. Any disability attributable to the combination of the work injury with preexisting disabilities is compensated, if at all, by the Second Injury Fund.

Before 1993, any preexisting disability that was a hindrance to employment or reemployment could open the door to possible Second Injury Fund liability. The Second Injury Fund statute was amended in 1993 to limit permanent partial disability awards against the Second Injury Fund to those cases where both the preexisting disabilities and the disabilities from the work injury are more than de minimis. The provision defining what disabilities will trigger Second Injury Fund liability now states:

> If any employee who has 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, 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.

The thresholds found in the quoted provision serve to protect the Second Injury Fund from enhanced permanent partial disability claims of claimants with de minimis disabilities. And that is where the service of the thresholds ends. Section 287.220.1 goes on to say:

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Injury No.: 03-077312

After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund...(emphasis added).

Under the plain language of the statute, once it is determined that the thresholds are met, all disabilities that exist at the time of the work injury should be considered in the calculation of Second Injury Fund liability. Likewise, the plain meaning of the phrase "disability resulting from the last injury" provides no support for discounting certain less disabling effects of a work injury, but rather clearly instructs that we include all of that disability in our calculation.

The second threshold applies when a claimant has preexisting or primary permanent partial disability of a single major extremity ("if a major extremity injury only"). In all other circumstances, the first threshold applies.

The legislature chose two different units of measurement to describe the thresholds: "fifty weeks of compensation" for preexisting disabilities of the body as a whole; and "fifteen percent permanent partial disability" for a preexisting or primary disability to a major extremity only. We believe the legislature rested on different units of measurement to foster arithmetic simplicity.

Where a claimant has only a preexisting or primary disability to a major extremity, the legislature made "a simple 15\% disability to a major extremity the threshold rather than attempt a more complex formula based on weeks of disability to various body parts at various levels." Motton v. Outsource Int'l, 77 S.W.3d 669, 675 (Mo. App. 2002).

But where there is more than one preexisting or primary disability, the simplicity described above cannot be achieved. In that event, we need a method to combine the various disabilities to determine claimant's overall preexisting disability as of the moment of the primary injury, as well as the overall disability resulting from the work injury. In order to combine the disabilities for comparison to the threshold, the disabilities must be converted to a common unit of measure. The legislature selected weeks of compensation as the common unit of measure.

In the instant case, employee had more than a single preexisting disabling condition and the work injury resulted in more than one disabling condition, so the first threshold applies. For both the preexisting disability and primary disability, we must determine if employee's overall disability - stated in weeks - meets or exceeds this amount.

As to employee's preexisting disabilities, we find appropriate and affirm the administrative law judge's findings that employee suffered a 22 % permanent partial disability of the body as a whole referable to his neck, 15 % permanent partial disability of the body as a whole referable to his back, and 15 % permanent partial disability of the left knee. In addition, based on the testimony from employee as well as the evidence of his prior workers' compensation settlements in connection with preexisting right thumb and right knee conditions, we find that employee suffered a 15 % permanent partial disability of his right thumb at the 60 -week level, and a 5 % permanent partial disability of his right knee.

Converting employee's preexisting disabilities into weeks of compensation yields the following results: 88 weeks for the neck, 60 weeks for the back, 24 weeks for the left knee, 9 weeks for the right thumb, and 8 weeks for the right knee. The sum equals 189 weeks. Employee has met the 50 -week threshold. We proceed now to analyze whether employee met the threshold for permanent partial disability resulting from the primary injury.

We find appropriate and affirm and adopt the administrative law judge's findings as to the permanent partial disability resulting from the primary injury, which are as follows: 15 % of the right wrist plus one week scarring, 15 % of the left elbow plus seven weeks scarring, 7.5 % of the body as a whole referable to the lumbar spine, and 7.5 % of the body as a whole referable to the cervical spine.

Converting employee's permanent partial disability resulting from the primary injury into weeks of compensation yields the following results: 27.25 weeks for the right wrist, 38.50 weeks for the left elbow, 30 weeks for the lumbar spine, and 30 weeks for the cervical spine. The sum is 125.75 weeks. Employee has met the 50 -week threshold.

We have found that employee's preexisting conditions amount to 189 weeks of permanent partial disability, and his primary injury resulted in 125.75 weeks of permanent partial disability. The sum of these two amounts is 314.75 weeks. When we multiply the sum by the 10 % load factor, the result is 31.475 weeks.

We conclude that the Second Injury Fund is liable for 31.475 weeks of permanent partial disability benefits.

We modify the award of the administrative law judge as to the extent of Second Injury Fund liability.

The stipulated rate of compensation is $\ 347.05. The Second Injury Fund is liable to employee for $\ 10,923.40 in permanent partial disability benefits.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.