In August 2001, employee was working as a bus monitor when an accident caused him to suffer a serious right shoulder injury that continues to produce debilitating pain despite four different surgeries, including a total shoulder replacement. Employee pursued claims against employer and the Second Injury Fund.
In his award, the administrative law judge found employee was permanently and totally disabled due to the work injury considered alone, but then, without explanation, awarded permanent partial disability benefits against employer and denied employee's claim against the Second Injury Fund. Employee filed an Application for Review with this Commission, arguing (among other things) that he is permanently and totally disabled owing to the effects of the work injury considered alone. Employer also filed an Application for Review, arguing (among other things) that employee is not permanently and totally disabled owing to the effects of the work injury considered alone.
While employee's appeal was pending here, we issued an Order Approving Stipulation for Compromise Settlement, which approved a settlement between employee and employer, in which employer agreed to pay employee a lump sum and waive any claim to the proceeds of employee's third-party action. In our Order, we dismissed employer's Application for Review, as well as employee's Application for Review so far as it relates to employee's claim against employer. Thereafter, employee filed a brief with this Commission arguing he is not permanently and totally disabled owing to the effects of the work injury considered alone, but instead due to a combination of the work injury and his preexisting conditions of ill, such that the Second Injury Fund is liable for permanent total disability benefits.
The only issues remaining before this Commission are (1) the nature and extent of permanent disability resulting from employee's work injury; and (2) employee's claim against the Second Injury Fund.
After a careful review of the entire record, we agree with the administrative law judge's finding that the more credible evidence demonstrates that employee is permanently and totally disabled owing to the effects of the work injury considered alone. But for unknown reasons, the administrative law judge issued an award that was inconsistent with this finding. Consequently, we must modify the administrative law judge's award in order to make clear and unequivocal findings as to the nature and extent of permanent disability resulting from the work injury, and to resolve the issue whether the Second Injury Fund is liable for benefits. Section 287.220.1 RSMo creates the Second Injury Fund and provides, in relevant part, as follows:
If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, ... the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...
The treating surgeon (Dr. Satterlee), employee's evaluating doctor (Dr. Swaim), and the only vocational expert (Michael Dreiling) agree that if employee has to lie down during the day to relieve the pain in his right shoulder, he is permanently and totally disabled due to the effects of the work injury considered alone. We find this testimony credible. Employee testified that he lies down at least once or twice per day for right shoulder pain and attributed most of his current physical difficulties to his inability to use his dominant right extremity as a result of the work injury. We find this testimony from employee credible. We find that employee has to lie down during the day due to right shoulder pain attributable to the primary work injury.
When determining whether the Fund has any liability, the Commission must first determine the degree of disability from the last injury considered alone. Preexisting disabilities are irrelevant until this determination is made. If the last injury in and of itself rendered the claimant permanently and totally disabled, then the Fund has no liability and the employer is responsible for all compensation.
Mihalevich Concrete Constr. v. Davidson, 233 S.W.3d 747, 754 (Mo. App. 2007) (citations omitted).
In light of our foregoing findings, we conclude that the effects of the primary injury, considered alone and in isolation, render employee permanently and totally disabled. It follows that there can be no Second Injury Fund liability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007).