Nelson Gibler v. A. B. Chance Company

The record reveals that, in addition to depression, certain of the medical experts to testify in this matter opined that, prior to the May 2000 work injury, employee suffered from the disabling conditions of low back pain and a learning disorder. Dr. Cantrell opined employee had a 4 % preexisting permanent partial disability of the body as a whole referable to low back pain caused by degenerative disc disease. Employee testified he was in a sledding accident when he was 21 years old and that he went to a chiropractor afterwards. Employee also testified that he once experienced an episode of back pain at work that was bad enough that he went to the doctor, and that he sometimes got a sore back before May 2000 if he overexerted himself. But employee also testified that he never missed work due to low back pain, that back pain didn't affect his performance, that his complaints were relieved with Ibuprofen, and that employer didn't have to accommodate him in any way for this condition. We credit Dr. Cantrell's opinion to the extent he opined that employee suffered some preexisting low back disability, but in light of employee's testimony on the matter, we are convinced that employee's preexisting low back pain condition was not very disabling. Accordingly, we find employee suffered from only a 2 % preexisting permanent partial disability of the body as a whole referable to his low back condition.

There is also evidence that employee suffered a preexisting learning disorder that causes difficulty in the areas of reading, mathematics, and written expression. Dr. Peterson opined that employee suffered a 0 to 5 % preexisting permanent partial disability of the body as a whole referable to this condition. Dr. Peterson's report suggests that a rating this low correlates to a "Class 1" permanent impairment, or in other words, "no impairment," and thus it appears Dr. Peterson was not of the opinion that the condition was very disabling. Dr. Hughes also identified a learning disorder as a lifelong preexisting impairment, and provided his own rating of 0 to 5 % permanent partial disability.

Notably absent from employee's testimony is any mention of a learning disorder. Where both Dr. Peterson and Dr. Hughes appear to agree that employee suffered at least some minimal permanent partial disability referable to a learning disorder, we are inclined to credit their opinions. But where employee does not identify or discuss the condition at all in his testimony, we are convinced the condition could not have been very disabling as of May 2000. Accordingly, we find employee suffered from only a 2 % preexisting permanent partial disability of the body as a whole referable to his learning disability.

We turn now to employee's preexisting depression. The administrative law judge found employee had no preexisting permanent partial disability referable to this condition, on a finding that employee testified he had no disability related to depression. Employee certainly testified that he didn't miss work because of depression, wasn't accommodated at work for depression, that depression didn't affect his ability to complete as much work as he did before, and that nobody at work was aware that he suffered episodes of depression. But employee also testified that he needed medication and treatment to manage this condition. Employee testified he has continuously been on antidepressant medications since 1998. The condition clearly did not interfere with employee's work, but the fact he needed treatment to manage the condition strongly suggests to us that employee's depression constituted a disability. And where the evidence shows employee needed continuous medication over the course of several years to cope with his condition, we are convinced it was a permanently disabling one as of May 2000.

Enployee: Nelson Gibler

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Accordingly, we find that employee's preexisting depression constituted a 2% permanent partial disability of the body as a whole.

Given the distinct potential for employee's low back condition, learning disability, and depression to combine with future work-related injuries to render employee more permanently disabled than in the absence of those conditions, we find that these conditions constituted hindrances or obstacles to employment as of May 22, 2000.

Section 287.220.1 RSMo creates the Second Injury Fund and provides the framework for analyzing whether the Second Injury Fund may be liable for permanent total or permanent partial disability benefits. That section provides, in relevant part:

> 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. 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.

We agree with the administrative law judge's determination that employee is not permanently and totally disabled. Accordingly, the question is whether employee is entitled to benefits for any enhancement of permanent partial disability resulting from a combination of his preexisting conditions of ill and the primary injury. We have found that, as of May 22, 2000, employee suffered from preexisting low back pain, a learning disorder, and depression, and that these conditions were permanent partially disabling conditions of such seriousness as to constitute hindrances or obstacles to employment.

Section 287.220.1, set forth above, provides thresholds which operate to exclude liability for de minimis injuries. Here, employee's preexisting conditions did not amount to a "major extremity injury only," so the 15 % threshold is inapplicable. Rather, because employee had more than a single preexisting disabling condition, we apply the 50-week "body as a whole" threshold.

We have found employee suffered a 2 % permanent partial disability of the body as a whole referable to his preexisting low back condition, a 2 % permanent partial disability of the body as a whole referable to his preexisting learning disability, and a 2 % permanent partial disability of the body as a whole referable to his preexisting depression. When we convert these ratings into weeks of compensation under the schedule of losses set out in § 287.190 RSMo, and combine the results together, the sum is 24 weeks compensation ( 400 weeks $\times 2 \%=8$ weeks). This amount is insufficient to meet the 50 -week threshold. It follows that employee is unable to establish Second Injury Fund liability for permanent partial disability benefits.

Given the foregoing findings and analysis, we must conclude employee failed to meet his burden of proving Second Injury Fund liability.

We supplement the award of the administrative law judge with the foregoing findings and conclusions. In all other respects, we affirm the award.

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.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued November 8, 2010, is attached hereto and incorporated herein to the extent not inconsistent with our findings in this supplemental opinion.

Given at Jefferson City, State of Missouri, this $16