Fred Hoven v. Sachs Electric Co.

Employee, we find that at the time employee sustained the primary left knee injury, he suffered the following preexisting permanent partially disabling conditions: 25 % of the right knee, 10 % of the body as a whole referable to hearing loss, 5 % of the body as a whole referable to tinnitus, 15 % of the body as a whole referable to vertigo, 12.5 % of the body as a whole referable to the hernia, 2.5 % of the body as a whole referable to the low back, and 5 % of the left shoulder.

We do not make any findings of permanency referable to employee's claimed 2004 bilateral upper extremity injuries, because employee failed to demonstrate that his medical condition or any disability referable to those injuries are permanent. (We disclaim the administrative law judge's finding that employee reached maximum medical improvement from bilateral carpal tunnel syndrome and cubital tunnel syndrome in January 2010). We more fully discuss employee's failure to prove permanency referable to the 2004 injuries in our award and decision on employee's claim for Injury No. 04-145596.

The administrative law judge provided no analysis to explain her determination that employee's preexisting disabling conditions did not amount to hindrances or obstacles to employment or reemployment. The phrase "hindrance or obstacle to employment" is not defined in Chapter 287. As a result, we look to case law for guidance in interpreting its meaning:

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). When we apply this standard, we conclude that

Employee's preexisting hearing loss, tinnitus, vertigo, hernia, low back, and left shoulder conditions amounted to hindrances or obstacles to employment at the time he sustained the primary injury. This is because we are convinced a cautious employer could reasonably perceive each of these conditions as having the potential to combine with a subsequent work related injury so as to produce a greater degree of disability than would occur in the absence of such condition.

Section 287.220.1 RSMo sets forth thresholds for the extent of preexisting permanent partial disability necessary to trigger Second Injury Fund liability. The language of that section makes clear that a 15 % threshold applies where the employee suffers from preexisting permanent partial disability referable to "a major extremity injury only." Id. Here, employee did not suffer preexisting permanent partial disability referable to a major extremity injury only, but rather suffered multiple preexisting conditions of ill, so the 15 % threshold is not applicable. Rather, we look at all of employee's preexisting disabling conditions, determine the total amount of weeks of preexisting permanent partial disability, and ask whether this amount meets the 50 -week "body as a whole" threshold. Id.

Converting employee's preexisting disabilities into weeks of compensation yields the following results: 40 weeks for the right knee, 40 weeks for hearing loss, 20 weeks for tinnitus, 60 weeks for vertigo, 50 weeks for the hernia, 10 weeks for the low back, and 11.6 weeks for the left shoulder. The sum of these amounts is 231.6 weeks. Employee has met the 50 -week threshold.

We credit Dr. Lichtenfeld and find that these preexisting conditions combine with employee's primary injury to result in greater disability than the simple sum. We agree with the administrative law judge that a 15 % load factor is appropriate to represent this synergistic effect. We have found that employee's preexisting conditions amount to 231.6 weeks of permanent partial disability. Employee's primary injury resulted in 28.75 % permanent partial disability of the left knee, or 46 weeks of permanent partial disability. The sum of these two amounts is 277.6 weeks. When we multiply the sum by the 15 % load factor, the result is 41.64 weeks.

We conclude that the Second Injury Fund is liable for 41.64 weeks of permanent partial disability benefits.

We modify the award of the administrative law judge as to the extent of Second Injury Fund liability.

The stipulated rate of compensation is $\ 389.04. The Second Injury Fund is liable to employee for $\ 16,199.63 in permanent partial disability benefits.

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.

The award and decision of Administrative Law Judge Suzette Carlisle is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this **19th** day of July 2012.

**Attest:**

Secretary

Employee: Fred Hoven

Injury No.: 07-125562

Dependents: N/A

Before the

Employer: Sachs Electric Co. (Settled)

Division of Workers'

Compensation

Department of Labor and Industrial

Additional: Second Injury Fund

Relations of Missouri

Insurer: Zurich American Insurance Co. (Settled)

Jefferson City, Missouri

Hearing Date: October 13, 2011

Checked by:SC

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 10, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis City, MO
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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured his left knee when he slipped and fell at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left knee
14. Nature and extent of any permanent disability: 28.75 % of the left knee (Settled)
15. Compensation paid to-date for temporary disability: $\ 1,167.13
16. Value necessary medical aid paid to date by employer/insurer? $\ 20,880.19

Employee: Fred Hoven

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,200.00
3. Weekly compensation rate: $\$ 742.72 / / \ 389.04
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Employer settled prior to hearing

1. Second Injury Fund liability: Yes

12.9 weeks of permanent partial disability from Second Injury Fund $\ 5,018.62

TOTAL:

$\ 5,018.62

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Dean Christianson

Employee: Fred Hoven

Departments: N/A

Employer: Sachs Electric Company (Settled)

Additional Second Injury Fund

Insurer: Zurich American Insurance Company (Settled)

Injury No.: 07-125562

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The parties appeared for a hearing before the undersigned administrative law judge at the Missouri Divisi