Joseph Salviccio v. Western Supplies Company

Employee's left little finger is permanently bent at 90 degrees at the proximal joint as a result of a workplace injury in 1995 which severed the tendons in his finger. Employee had surgery and settled a workers' compensation claim for 59 % of the left little finger at the 22 -week level. The finger gets in the way at work and employee has to work around it. Employee is right-handed.

Employee suffered a hernia in 1999 and another in 2005. Employee had separate surgeries to repair each. The second surgery involved reconstruction of the abdominal wall. Both were workplace injuries and employee settled his workers' compensation claims for permanent partial disability of 4 % referable to the body as a whole for the 1999 hernia and 3.5 % referable to the body as a whole for the 2005 hernia. Employee has to be very careful when he's lifting.

Employee suffers from diabetes, diagnosed approximately 15 years before the hearing in this matter. Employee takes two different types of insulin and Metformin daily. Throughout the day, employee experiences sensations of tingling, hot and cold, and pain in his hands, arms, feet, and toes.

Dr. Musich rated employee's preexisting permanent partial disabilities as follows: 15\% of the body as a whole referable to the two hernias, 20 % of the body as a whole referable to diabetes, and 15 % of the left hand referable to the little finger condition.

After carefully considering all of the evidence, we find employee suffered the following preexisting permanent partial disabilities: 50 % of the left little finger at the proximal joint, 12.5 % of the body as a whole referable to diabetes, 4 % of the body as a whole referable to the 1999 hernia, and 3.5 % of the body as a whole referable to the 2005 hernia. In light of the distinct possibility for each of these conditions to combine with a work injury to result in worse disability than in the absence of such condition, we conclude that each of these conditions was serious enough to constitute a hindrance or obstacle to employment at the time of the November 2008 primary injury.

Dr. Musich also opined that the disability from the primary injury combines with the disability from the preexisting injuries to result in greater disability than the simple sum of the disabilities. We find Dr. Musich credible on this point and find that employee's overall disability from the combination of his preexisting conditions and the primary injury is greater than the simple sum of those disabilities. We find that this synergism is best represented by a load factor of 10 %.

On page 5 of her award, the administrative law judge explained why she denied employee's claim against the Second Injury Fund: "I do find each of Claimant's preexisting conditions/injuries have a level of permanent partial disability, but none of the preexisting conditions reach the necessary level to trigger SIF liability." These comments suggest the administrative law judge was of the opinion that if none of a worker's preexisting disabilities, considered in isolation, meet one of the thresholds in § 287.220.1, then there can be no Second Injury Fund liability. 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

ènsuring 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:

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.

The second threshold applies when a claimant has preexisting 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 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 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 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. 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 so the first threshold applies. We must determine if employee's overall preexisting permanent partial disability - stated in weeks - meets or exceeds 50 weeks.

Converting employee's preexisting disabilities into weeks of compensation yields the following results: 50 weeks for employee's diabetes, 16 weeks for the 1999 hernia, 14 weeks for the 2005 hernia, and 11 weeks for the left little finger. The sum of the preexisting disabilities is 91 weeks. Employee has met the 50-week threshold.

We have found that employee suffers from a total of 91 weeks of preexisting permanent partial disability referable to his preexisting disabling conditions, and that these conditions constituted hindrances and obstacles to employment at the time he sustained the November 2008 primary injury. As a result of the work injury, employee suffers from a permanent partial disability of the left knee equivalent to 32 weeks. Under $\S 287.220 .1$, employee is entitled to compensation from the Second Injury Fund if he proved the disabilities combined 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 (Mo. App. 2004).

We have credited Dr. Musich's opinion that employee's preexisting conditions of ill combine with the effects of the November 2008 work injury to result in greater disability than the simple sum. We have also found that this synergism is best represented by a load factor of 10 % applied to the sum of permanent disability attributable to employee's preexisting conditions and primary injury.

Employee's preexisting conditions amount to 91 weeks of permanent partial disability. His primary injury resulted in 32 weeks of permanent partial disability. The sum of these two amounts is 123 weeks. When we multiply the sum by the 10 % load factor, the result is 12.3 weeks.

Employee has met his burden. We conclude that the Second Injury Fund is liable for 12.3 weeks of permanent partial disability enhancement.

We reverse the award of the administrative law judge. We conclude employee met his burden of proof on the issue of Second Injury Fund liability for enhanced permanent partial disability.

The stipulated rate of compensation is $\ 404.66 per week. The Second Injury Fund is liable to employee for $\ 4,977.32 in permanent partial disability benefits.

This award is subject to a lien in favor of Elizabeth Ituarte, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

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

The award and decision of Administrative Law Judge Linda J. Wenman, issued March 8, 2011, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $\qquad 8^{\text {th }} \qquad$ day of December 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary