| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Robert Bollinger |
| Employer: | The Education Institute (Settled) |
| Insurer: | Travelers Commercial Casualty (Settled) |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. |
| Discussion On September 16, 2008, employee sustained a compensable right knee injury when he slipped and fell while working for employer. He settled his claim against the employer and proceeded to a hearing before an administrative law judge on his claim against the Second Injury Fund. The administrative law judge found that employee is entitled to 20.24 weeks of enhanced permanent partial disability benefits from the Second Injury Fund. The Second Injury Fund filed a timely Application for Review with the Commission. The Second Injury Fund alleges, among other things, that the administrative law judge erred in including employee's preexisting diabetes in her calculation of Second Injury Fund liability. The Second Injury Fund points out the administrative law judge specifically found that employee's preexisting diabetes was not a hindrance or obstacle to employment at the time of the primary injury on September 16, 2008. The administrative law judge provided the following rationale for so finding: |
| Although Claimant indicated that his diabetes is now out of control, such was not the case at the time of the last or primary injury. ... The testimony of Claimant and his spouse indicate that any problems with diabetes or diabetic neuropathy were minimal, consisting of an infrequent need to sip some juice to correct Claimant's blood sugar level. |
| Award, page 7. |
| We believe the administrative law judge inappropriately analyzed the question whether employee's diabetes constituted a hindrance or obstacle to employment. The courts have consistently instructed that the question whether a preexisting condition constitutes a hindrance or obstacle to employment does not turn on the degree of difficulty which the condition caused the employee in the past: |
| Many occupations can be ably performed by workers with one eye or one arm. In such cases, the condition may not cause the employee to miss any work or otherwise diminish his earning power. The condition becomes disabling only when combined with a further injury. It is the potential for those more serious combinations of injury and previous condition that gives rise to the employer's |
incentive to discriminate in the absence of a Second Injury Fund. Thus, a requirement that the condition be shown to have caused the employee to have missed work or suffer diminished earnings prior to the injury which combines with the condition to render the employee disabled is inconsistent with the purpose of the Fund. In many instances, the effect would be to deny the protection of the Fund to those most in need of it.
If the Second Injury Fund is to fulfill its acknowledged purpose, the proper focus of the inquiry as to the nature of the prior disability is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition 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. That potential is what gives rise to prospective employers' incentive to discriminate. Thus, if the Second Injury Fund is to serve its acknowledged purpose, "previous disability" should be interpreted to mean a previously existing condition that a cautious employer could reasonably perceive as having the potential to combine with a work related injury so as to produce a greater degree of disability than would occur in the absence of such condition. A condition satisfying this standard would, in the absence of a Second Injury Fund, constitute a hindrance or obstacle to employment or reemployment if the employee became unemployed.
Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995) (emphasis in original).
The foregoing "potential to combine" standard has been consistently cited by the courts to determine whether a preexisting condition constitutes a hindrance or obstacle to employment. See Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007); Concepcion v. Lear Corp., 173 S.W.3d 368, 371 (Mo. App. 2005); E.W. v. Kan. City Sch. Dist., 89 S.W.3d 527, 538 (Mo. App. 2002); and Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo. App. 1997). Nevertheless, the misperception continues that an employee's failure to provide evidence that a preexisting condition caused difficulty in the past means that the employee has failed to prove the condition was a hindrance or obstacle to employment.
Evidence that a preexisting condition affected an employee's earning potential before the work injury is certainly relevant to the question whether employee suffered from a preexisting permanent partial disability; this, of course, is a related but separate requirement for establishing Second Injury Fund liability under § 287.220 RSMo. It appears that much of the confusion in this area stems from the regular conflation of these two distinct concepts. Here, the administrative law judge found that employee's diabetes did amount to a preexisting permanent partial disability to the extent of 10 % of the body as a whole-but then cited the fact employee's diabetes was controlled by sipping some juice as evidence for finding employee's diabetes did not constitute a hindrance or obstacle to employment at the time of the primary injury.
We disagree with the administrative law judge's conclusion that employee's diabetes did not constitute a hindrance or obstacle to employment. When we apply the appropriate standard, as identified in Wuebbeling and consistently reaffirmed by the courts, we conclude that employee's preexisting diabetes amounted to a hindrance or obstacle to employment at the time he sustained the primary injury. This is because we are convinced a cautious employer could reasonably perceive employee's diabetes as having the potential to combine with a work related injury so as to produce a greater degree of disability than would occur in the absence of such condition.
As Dr. Shuter pointed out, employee's diabetes negatively impacted his treatment for the primary injury, leading to delays in December 2008 while treating doctors tried to get his diabetes under control. This case thus fittingly illustrates the concept expressed by the Wuebbeling court: a prospective employer considering whether to hire employee could reasonably anticipate that employee's diabetes, while under control at the date of hire, may-as actually happened herehamper employee's ability to recover from a subsequent work injury, and thus (in the absence of the Second Injury Fund) expose the prospective employer to more liability than otherwise would have resulted from the work injury. It follows that employee's diabetes is precisely the sort of preexisting condition the legislature had in mind when the Second Injury Fund was created.
Accordingly, we modify the analysis of the administrative law judge on the question of Second Injury Fund liability as follows. We conclude employee's preexisting diabetes was a hindrance or obstacle to employment for purposes of $\S 287.220$ RSMo.