We find, based on employee's testimony and the record as a whole, that there is simply insufficient evidence to support employee's argument that his cardiac condition manifested itself as an actual or measurable disability at the time of the primary claim.
We find that Dr. Koprivica's permanent partial disability ratings with regard to employee's primary injury and preexisting disabilities are credible. However, we find that Dr. Koprivica's testimony stating, employee is "totally disabled" even taking the heart condition out of the equation, is not credible. We ultimately concluded, and readopt in this award, that employee is merely permanently partially disabled when his cardiac condition is excluded from the determination of the nature and extent of his disability.
The award and decision of Chief Administrative Law Judge Paula A. McKeon, issued May 3, 2010, is attached and incorporated by this reference.
The Commission further approves and reaffirms 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.
Given at Jefferson City, State of Missouri, this 9th day of December 2011.
**LABOR AND INDUSTRIAL RELATIONS COMMISSION**
William F. Ringer, Chairman
Alice A. Bartlett, Member
**DISSENTING OPINION FILED**
Curtis E. Chick, Jr., Member
Attest:
Secretary
I did not participate in the initial review and decision of the Commission, as I was not a sitting member at that time; however, having reviewed the evidence and considered the whole record, I agree with and adopt former Commissioner John J. Hickey's dissenting opinion, issued November 1, 2010.
In denying employee's claim for permanent total disability benefits, the majority is taking the position that employee's cardiac condition did not manifest itself as an actual and measurable disability at the time the work injury occurred. However, the majority is also taking the position that employee is currently permanently and totally disabled only if you consider his cardiac condition along with his other disabilities. I disagree with the majority's apparent conclusion that all of employee's disability attributable to his cardiac condition occurred subsequent to the primary injury. It is my opinion, based on the employee's testimony, the medical records, and Dr. Koprivica's report, that employee should be awarded permanent total disability benefits instead of the mere permanent partial disability benefits awarded by the administrative law judge.
Under Missouri Workers' Compensation law, "[l]iability of the Second Injury Fund is triggered only 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained.'" E.W. v. Kansas City Missouri Sch. Dist., 89 S.W.3d 527, 537 (Mo. App. 2002), citing Messex v. Sachs Elec. Co., 989 S.W.2d 206, 215 (Mo. App. 1999).
Employee sustained a work-related neck injury on August 25, 2006, which ultimately resulted in a two-level cervical fusion. During routine pre-hospitalization for neck surgery on November 16, 2006, employee failed an EKG heart examination. Employee was referred to a cardiologist and underwent a triple by-pass on November 21, 2006.
Employee testified that although his cardiac condition was not diagnosed until November 2006, he was having substantial problems with his heart well before the accident. Employee testified that during the time period leading up to the accident he had been experiencing increased fatigue. Employee stated that he would get winded from going up a flight of steps and would get severely "over-winded" when he was doing even small chores like mowing the lawn. He also stated that it took a long time for him to recover once he lost his breath.
Employee stated that he believed his heart condition slowed him down at work because it was hard to work when he was constantly out of breath. Employee recalled going from being able to carry two boxes of tools, down to one, and eventually having to buy a cart with wheels that allowed him to roll his tools around.
The majority explains away the aforementioned symptoms by pointing out that employee was a smoker during that time. I disagree with the majority's conclusion as Dr. Koprivica's expert medical opinions make clear that these symptoms were caused by his undiagnosed progressive heart condition.
Dr. Koprivica testified that he pointed out in both of his reports that employee's cardiac impairment was symptomatic and present prior to the August 25, 2006, accident. He
Enployee: Mark Tombaugh
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further testified that although employee's cardiac impairment was not diagnosed until after the accident on August 25, 2006, it was clearly disabling before the accident.
Dr. Koprivica testified that in his opinion employee was permanently and totally disabled. Dr. Koprivica made clear that in coming to the conclusion that employee is permanently and totally disabled he excluded post-accident progression of employee's cardiac impairment. He found employee permanently and totally disabled as a result of the combination of employee's injuries from the August 25, 2006, accident and his preexisting disabilities (including employee's preexisting cardiac impairment).
Although liability of the Second Injury Fund is only triggered by a finding of the presence of an actual and measurable disability at the time the work injury is sustained, to qualify as a preexisting condition, it need not be shown that the employee or the employer knew of the preexisting disability prior to the work injury. Messex, 989 S.W.2d at 214. Therefore, it is not dispositive that employee's cardiac impairment had not yet been diagnosed at the time of the accident. It is only pertinent that employee's cardiac impairment existed at the time of the accident. It is clear based on employee's testimony and the fact that he underwent triple by-pass surgery less than three months after the accident that the onset of employ