Michael Davis v. City of Chaffee

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, hereinafter provided for.

We find that employee sustained a primary injury of the low back that left him with a 25 % permanent partial disability of the body as a whole referable to the lumbar spine. We credit Dr. Cohen and find that, at the time employee sustained the primary injury, employee suffered from preexisting permanent partial disabling conditions of both hands. In light of the distinct potential that employee's bilateral hand conditions may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition, we find that these conditions were serious enough to constitute hindrances or obstacles to employment at the time the last injury was sustained. See Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Employee's preexisting permanent partial disability is not referable to "a major extremity injury only," for purposes of the foregoing language from § 287.220.1. Instead, employee suffered preexisting conditions of ill affecting both of his upper extremities, so we will apply the 50-week "body as a whole" threshold. Id.

We credit Dr. Cohen and find that employee suffered a preexisting permanent partial disability of 30 % at the 175 -week level at the time he sustained the primary injury. Converting employee's preexisting disabilities into weeks of compensation yields a total of 52.5 weeks for each hand. The sum of employee's preexisting disabilities is 105 weeks. Employee has met the 50-week threshold.

We credit Dr. Cohen and find that employee's preexisting disabling conditions combine synergistically with the effects of the primary injury to render him more disabled than in the absence of such conditions. We note also Dr. Cohen's uncontradicted opinion that employee's preexisting hypertension, heart disease, and depression do not combine with the primary work related injury; in his brief, employee does not argue that these conditions combine with the work injury, and only requests that we consider the preexisting bilateral hand conditions. Accordingly, we adopt Dr. Cohen's opinion (and so find) that employee's preexisting hypertension, heart disease, and depression do not combine with the work injury.

We find that a 10\% load factor is appropriate to represent the synergistic combination of employee's preexisting and primary disabilities. Employee's primary injury resulted in 25\% permanent partial disability of the body as a whole referable to the lumbar spine, or 100 weeks of permanent partial disability. Employee's bilateral hand condition amounts to 105 weeks of permanent partial disability. The sum of preexisting and primary permanent partial disability is 205 weeks. When we multiply the sum by the 10 % load factor, the result is 20.5 weeks.

We conclude that the Second Injury Fund is liable for 20.5 weeks of permanent partial disability benefits.

We issue the foregoing findings, conclusions, award, and decision as to the issue of Second Injury Fund liability for permanent partial disability benefits.

The stipulated rate of compensation is $\ 341.90. The Second Injury Fund is liable to employee for $\ 7,008.95 in permanent partial disability benefits.

Any past due compensation shall bear interest as provided by law.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued December 21, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Michael Davis

Injury No. 08-070355

Dependents: N/A

Employer: City of Chaffee (settled)

Additional Party: Second Injury Fund

Insurer: Missouri Rural Services Workers’ Comp Insurance Trust (settled)

Appearances: Chris Weiss, attorney for employee.

Jonathan Lintner, Assistant Attorney General for the Second Injury Fund.

Hearing Date: September 21, 2011 Checked by: LCK/rf

1. Are any benefits awarded herein? No.
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? February 19, 2008.
5. State location where accident occurred or occupational disease contracted: Scott 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 disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

On September 21, 2011, the employee, Michael Davis appeared in person and with his attorney, Chris Weiss, for a hearing for a final award. The Second Injury Fund was represented at the hearing by Assistant Attorney General Jonathan Lintner. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issue that was in dispute. These undisputed facts and issue, together with the findings of fact and rulings of law, are set forth below as follows:

1. The City of Chaffee was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by the Missouri Rural Services Workers' Compensation Insurance Trust.
2. On February 19, 2008 Michael Davis was an employee of the City of Chaffee and was working under the Workers' Compensation Act.
3. On February 19, 2008 the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim for compensation was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 512.85. The rate of compensation for permanent total disability and permanent partial disability is $\ 341.90 per week.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid $\ 10,080.46 in medical aid.
9. The employer-insurer paid $\ 8,984.76 in temporary disability benefits representing $262 / 7$ weeks of compensation. The time periods paid were March 3 through March 13, 2008; May 5 throu