Harry Bell v. Noranda Aluminum, Inc.

At the time of the primary injury, employee was also receiving ongoing treatment for depression. Employee was taking Effexor, Wellbutrin, and Elavil for the condition. In fact, on August 5, 1999, employee's Effexor XR was increased from 37.5 mg to 75 mg with a continuation of his other medications.

On June 5, 2003, Dr. Cohen saw employee for the purpose of an independent medical evaluation. Dr. Cohen opined in his report that employee is 70 % permanently partially disabled of the body as a whole referable to the lumbar spine. Dr. Cohen clarified during his deposition that the 70\% lumbar spine rating accounts for employee's preexisting multilevel degenerative disc disease. Dr. Cohen also opined that employee suffers from 20\% permanent partial disability of the body as a whole referable to his depression. With respect to employee's 1993 neck injury, Dr. Cohen opined that employee sustained 30\% permanent partial disability of the body as a whole referable to his cervical spine. Finally, Dr. Cohen opined that employee's primary injury combines with his preexisting disabilities to render him permanently and totally disabled.

Dr. Gornet's treatment of employee was limited to his low back. Dr. Gornet opined that employee's low back condition was due to a combination of the last injury and the preexisting degenerative changes in his low back. Dr. Gornet testified that employee's multilevel degenerative disc changes predated the primary injury of September 23, 1999.

Mr. England evaluated employee on March 24, 2004, for the purpose of providing a vocational assessment. Mr. England stated: "Looking at [employee's] combination of problems, it appears ... that [employee] would not be able to compete successfully for employment, nor would he be able to sustain any type of work on a consistent, day-to-day basis." Mr. England further stated that "[a]ssuming [employee's] combination of problems with his neck, low back and his emotional problems, I believe he is totally disabled from a vocational standpoint." On cross-examination, Mr. England was asked whether, assuming that employee had no prior neck or depression conditions, if he would be employable in the open labor market. Mr. England responded, "I really don't know. I guess it would depend on how he was functioning and what restrictions he would have just from the low back."

The Second Injury Fund did not offer any contradictory expert testimony.

Employee settled his claim against employer for the lump sum of $\ 97,500.00. In light of employee's stipulated permanent partial disability rate of $\ 303.01, this lump sum settlement amounts to approximately 321.77 weeks of compensation, or 80.4 % permanent partial disability of the body as a whole.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." In order to trigger liability of the Second Injury Fund, employee must show the presence of an actual and measurable disability at the time the work injury is sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or reemployment should the employee become unemployed. E. W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo. App. W.D. 2002), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Based upon the medical records and reports, medical expert testimony, employee's testimony, and the record as a whole, we find that employee met his burden of proving that his preexisting cervical neck condition, multilevel degenerative disc disease, and depression amounted to actual and

In evaluating cases involving preexisting disabilities, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo. App. W.D. 1999), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). In Kizior, the Court set out a step-by-step test for determining Second Injury Fund liability:

Section 287.220.1 contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (1) the employer's liability is considered in isolation - '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'; (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund.

Kizior, 5 S.W.3d at 200.

The Second Injury Fund argues that employee is permanently and totally disabled solely as a result of the last injury; however, the Second Injury Fund did not present any expert medical evidence supporting said argument. Based on employee's settlement with employer and the record as a whole, we find that as a result of the primary injury employee sustained 80.4 % permanent partial disability of the body as a whole referable to the lumbar spine. We further find that he suffered significant disabilities from his aforementioned preexisting conditions. In accordance with Dr. Cohen and Dr. Gornet's opinions, we find that employee's disabilities from his work injuries combine with his preexisting disabilities to produce greater overall disability than the simple arithmetic sum of the separate disabilities.

In determining whether employee is permanently and totally disabled, we turn to § 287.020.7 RSMo, which defines "total disability" as the "inability to return to any employment...." The Court in Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849 (Mo.App. 1995) provided a test for evaluating permanent total disability:

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Id. at 853 (citations omitted).

Based upon the medical records, medical and vocational reports, employee's testimony, and the expert testimony of Dr. Cohen, Dr. Gornet, and Mr. England, we believe that no employer would reasonably be expected to hire employee in his present condition. We conclude employee is permanently and totally disabled due to the combination of the disabilities from his work injuries with his preexisting disabilities. The Second Injury Fund is liable to employee for permanent total disability benefits.

We affirm the award of the ALJ as supplemented herein.

Based upon the aforementioned findings and the stipulations of the parties, beginning December 24, 2003, to February 21, 2010, the Second Injury Fund shall pay to employee $\ 118.09, the difference between employee's PTD rate and his PPD rate. ${ }^{2} Thereafter, the Second Injury Fund shall pay to employee \ 421.10 for the remainder of employee's life, or until modified by law.

The award and decision of Administrative Law Judge Carl Strange, issued May 3, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and 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.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{2} \$ 421.10-\ 303.01

Employee: Harry Bell

Injury No. 99-129492

Dependents: N/A

Employer: Noranda Aluminum, Inc.

Additional Party: Second Injury Fund

Insurer: Self-insured

(TPA: Sedgwick Claims Management Services)

Hearing Date: January 24, 2011

Checked by: CS/rf

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? September 23, 1999.
5. State location where accident occurred or occupational disease contracted: New Madrid County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational di