James Witte v. Sho-Me Livestock Cooperative, Inc.

We find Dr. Poetz's disability ratings as to the primary injury to be credible. We find that, as a result of the primary injury, employee sustained a 20\% permanent partial disability of the body as a whole referable to his lumbar spine and a 30\% permanent partial disability of the right hip.

Employee suffered from multiple preexisting conditions of ill at the time of the April 2007 primary injury. We discuss each condition below.

Employee was in a bicycle accident when he was six years old. Employee broke his right leg in five places and underwent multiple surgeries. His right leg healed in such a fashion that his right leg ended up shorter than his left. Employee's leg length discrepancy results in an uneven gait, and this condition, combined with employee's great height (seven feet) and attendant need to bend or stoop throughout his entire life, has caused employee to experience some back problems in the past. Employee saw a chiropractor for his low back before the primary injury. Doctors advised employee to try orthotics to balance his gait and relieve the tension on his hips and spine, but employee did not obtain the orthotics because they were too expensive and he lacked insurance. Although he had low back pain and discomfort, employee wasn't under any doctor's work restrictions and wasn't missing work due to his low back as of April 2007. Employee was taking ibuprofen to manage his pain.

Employee suffers from preexisting type 2 diabetes. An August 13, 2006, treatment record from St. John's Mercy Hospital indicates employee's diabetes was "poorly controlled." Employee gets tingling in his feet. Employee takes insulin twice a day.

Employee had several surgeries on his left eye to address a large angle exotropia. The problem started when he was about six years old. But employee's visual acuity is 20/20 with glasses, and employee doesn't miss work due to his left eye condition.

Employee suffered preexisting depression and anxiety. Employee suffered from these psychiatric problems from the age of about ten years old. Employee has seen various doctors over the years for these conditions and has intermittently sought relief through the use of psychiatric medications such as antidepressants. Employee's psychiatric problems sometimes kept employee confined indoors.

Finally, employee has a spastic colon which causes him severe diarrhea or constipation when stressed. Employee has suffered this condition since he was seven years old. The condition makes it difficult for employee to predict when he will need restroom breaks and has posed a problem with some of employee's jobs. Employee was taking medication for this condition both before and after the April 2007 primary injury.

Dr. Poetz rated employee's preexisting permanent partial disabilities as follows: 15\% of the body as a whole referable to diabetes; 20 % of the body as a whole referable to the left eye; 15 % of the right lower extremity referable to the childhood right leg injury; 15 % of the body as a whole referable to a spastic colon; 20 % of the body as a whole

Referable to anxiety and depression; and 10% of the body as a whole referable to the lumbar spine.

After carefully considering all of the evidence, we find employee suffered the following preexisting permanent partial disabilities: 10% of the body as a whole referable to diabetes, 10% of the body as a whole referable to employee's gastrointestinal condition, 10% of the body as a whole referable to his psychiatric problems, 10% of the right leg at the 207-week level referable to the childhood right leg injury, and 5% of the body as a whole referable to the lumbar spine. 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 April 2007 primary injury. We have not assigned a rating to the preexisting left eye condition because we are not persuaded that employee suffered preexisting permanent partial disability referable to this condition, as employee had perfect vision with correction and testified that he did not have problems with work related to his eyesight.

Dr. Poetz 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. Poetz 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 15%.

On page 6 of her award, the administrative law judge explained why she denied employee's claim against the Second Injury Fund: "While [employee] had multiple complaints referable to diabetes, colon, mental health, left eye, right leg, and back, there is very little evidence that any of these complaints were significant enough ... to reach the thresholds set out in Section 287.220.1 for Second Injury Fund liability for permanent partial disability." 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 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 preexisting 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