Sara Perkins v. Missouri Department of Corrections

Employee claims she suffered multiple preexisting conditions of ill at the time she sustained the primary injury, including cardiac problems, depression, and sleep apnea. Employee's heart problems required surgeries to implant a pacemaker in 1996 and a stent in 2005. Dr. Raymond Cohen evaluated employee and provided his expert medical opinion in this matter and rated employee's cardiac disability at 30 % of the body as a whole. Dr. Robson, who performed employee's back surgeries, opined that employee suffered from 0 % preexisting permanent partial disability. Employee testified that she is able to satisfy her supervisor with her job performance, but that her heart problems cause her to experience daily fatigue, pain in her chest if she is tired or stressed, and shortness of breath.

We find employee's testimony as to her heart problems credible and persuasive. We also find credible Dr. Cohen's testimony that employee's heart condition amounted to a preexisting permanent partial disability, although we consider his rating somewhat high in light of his testimony that employee's work restrictions related to the heart condition are minimal. At the same time, we reject the (apparent) position of the Second Injury Fund in this matter that doctor-imposed work restrictions are necessary for a finding that employee suffers some permanent disability referable to her cardiac condition. Clearly, the absence of specific functional or mechanical restrictions such as a lifting restriction does not necessarily mean that employee is not disabled in the performance of her work by shortness of breath, chest pain, and fatigue.

Ultimately, we find employee suffered a 12.5 % preexisting permanent partial disability of the body as a whole referable to her cardiac condition.

Dr. Cohen did not provide ratings for employee's claimed conditions of depression and sleep apnea, and testified that he had no indication that depression caused any problems with employee's work. Employee notably did not testify at all about depression or sleep apnea.

We find employee did not suffer any preexisting permanent partial disability referable to the claimed depression and sleep apnea conditions.

Dr. Cohen credibly opined (and we so find) that employee's preexisting cardiac condition combines with the primary injury to result in greater overall disability than in the absence of the condition. Dr. Cohen opined that a load factor of 15 % reflects the degree of synergy between employee's preexisting condition and the effects of the primary injury. We find a load factor of 10 % more appropriate.

Employee brings this claim against the Second Injury Fund alleging multiple preexisting conditions of ill. On page 8 of his award, the administrative law judge explained why he denied employee's claim against the Second Injury Fund: "The Court finds that none of the employee's pre-existing disabilities meet the threshold requirements that are necessary to combine with the employee's disabilities from her primary injury to trigger Second Injury Fund liability." These comments suggest the administrative law judge was of the opinion

Injury No.: 07-118938

Employee: Sara Perkins

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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.

Imployee: Sara Perkins

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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.

Application of the thresholds

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." *Motion 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.

This claim

In the context of the instant case, employee claimed multiple preexisting conditions of ill, but proved only that her cardiac condition amounted to a permanent partial disability of the body as a whole. We first ask whether this condition was "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." § 287.220.1. The Missouri courts have articulated

the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he