(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 08-037253
Employee: Robert L. Treadway
Employer: Pemiscot-Dunklin Electric Coop
Insurer: Missouri Electric Cooperatives
Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund
The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated April 19, 2011. The award and decision of Administrative Law Judge Gary L. Robbins, issued April 19, 2011, is attached and incorporated by this reference.
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 $15^{\text {th }}$ day of March 2012.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
James Avery, Member
DISSENTING OPINION FILED
Curtis E. Chick, Jr., Member
Attest:
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be modified and employee should be awarded permanent total disability benefits against the Second Injury Fund.
There is no dispute that employee suffered an accident that arose out of and in the course of his employment on May 8, 2008. The primary issue is whether employee's May 8, 2008, injury combined with his preexisting disabilities to result in Second Injury Fund liability.
Section 287.220 RSMo ${ }^{1}$ 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 that work-related injury is of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. 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).
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.
In this case, employee testified to numerous ongoing complaints, which he attributes to his work injury. Employee stated that his back hurts every day and that the pain is constant and worse with exertion. He also continues to have complaints in his left leg,
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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007 unless otherwise indicated.
Improve: Robert L. Treadway
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which includes numbness on the top of his thigh and a knot in his left calf. Employee is limited in his abilities to complete household chores and lawn care tasks. Employee can only sit or stand comfortably for 15-20 minutes at a time.
Prior to the work-related accident employee was diagnosed with emphysema. His emphysema caused him problems with shortness of breath whenever he would exert himself. Employee has smoked at least a pack of cigarettes a day for the past thirty years.
Employee also testified to a past history of depression. Employee stated that before his accident his depression would affect him at work. There were times when he would simply feel overwhelmed, such that he would have to pull his truck over onto a small dirt road and lay down to "let it pass." Employee has continued problems with his depression in that since the accident he has had to increase his medications of Lexapro and Trazodone.
Dr. Bowen testified that it is his opinion employee has a permanent partial disability of 5% of the body as a whole due to his work-related back injury. Dr. Bowen used the AMA guidelines for impairment in reaching this 5% rating. Dr. Bowen placed permanent restrictions on employee of sedentary work only, with no lifting greater than 10 pounds. With regard to employee's ability to return to work, Dr. Bowen testified that "his ability to return to work are (sic) probably not existent, but I'm not sure they're from an organic cause with his lower back." Dr. Bowen stated that he believes employee's pain "is real to him." Dr. Bowen stated that he did not have records of employee's past history of depression and anxiety, and he did not "talk extensively" with the employee about his past history.
Dr. Lichtenfeld opined that as a result of the May 8, 2008, lower back injury employee sustained 15% permanent partial disability of the body as a whole. Dr. Lichtenfeld recommended that employee avoid twisting, bending, stooping, and working in awkward positions. Dr. Lichtenfeld also recommended that employee avoid working with his arms outstretched and overhead, and prolonged sitting and standing. With regard to employee's preexisting disabilities, Dr. Lichtenfeld opined that employee suffers from 25% permanent partial disability of the body as a whole due to his emphysema. Dr. Lichtenfeld also opined that employee's primary injury combines with his preexisting disabilities to create a greater overall disability than the simple arithmetic sum of the separate disabilities.
Dr. Stillings testified that the work accident resulted in a Mood Disorder and a Pain Disorder, for which he attributed permanent partial disability of the body as a whole of 20% and 15%, respectively. With regard to employee's preexisting disabilities, Dr. Stillings opined that employee is 7.5% permanently partially disabled of the body as a whole due to a Depressive Disorder and 7.5% permanently partially disabled of the body as a whole due to his Maladaptive Personality Traits. Dr. Stillings opined that employee's preexisting psychiatric problems combined with his work-related psychiatric problems to create a greater overall disability than the simple arithmetic sum of the separate disabilities. Dr. Stillings stated that from a psychiatric standpoint employee is permanently and totally disabled from gainful employment.
Improvee: Robert L. Treadway
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Vocational rehabilitation expert, Mr. Lalk, evaluated employee. Mr. Lalk noted that the restrictions of both Dr. Bowen and Dr. Lichtenfeld limit the employee to a sedentary level of exertion. He further noted the extensive psychiatric limitations based on Dr. Stillings' opinions. Mr. Lalk concluded that employee does not have either the experience or the training which would allow him to work in a skilled, sedentary position. Mr. Lalk opined that employee is not able to secure or maintain employment in the open labor market and is not able to compete for any position.
Vocational rehabilitation expert, Ms. Blaine, also evaluated employee. Ms. Blaine opined that employee could return to work if he worked within the framework of sedentary to light levels of work. Ms. Blaine stated that it was not feasible for employee to go back to the type of work he had done before, but she felt that he could consider jobs such as unarmed security, light delivery or a shuttle driver. On the other hand, Ms. Blaine stated that if she took the opinions of Dr. Stillings into consideration, she does not believe employee would be able to return to any employment.
Both Dr. Lichtenfeld and Dr. Stillings opined that employee's primary injuries combine with his preexisting disabilities to result in greater overall disability than the simple arithmetic sum of the separate disabilities. When considering employee's psychiatric condition, none of the experts believe that employee is able to compete in the open labor market.
Permanent and total disability is defined by § 287.020.6 RSMo as the "inability to return to any employment ..."
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.
Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).
Based on the totality of the evidence, I believe employee is permanently and totally disabled as a result of his primary injuries combining with his preexisting disabilities. As such, I would modify the award of the administrative law judge merely awarding employee permanent partial disability benefits against employer and award employee permanent total disability benefits against the Second Injury Fund.
For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.
Curtis E. Chick, Jr., Member