performed arthroscopic surgery on employee's right shoulder on April 13, 2005. His post-operative notes indicate that he found no discrete tear but that the bursa was thickened and frayed. His diagnosis was impingement syndrome in the right shoulder with acromioclavicular joint (AC joint) arthritis. During this procedure, Dr. Hulsey performed a subacromial decompression and excised the distal clavicle.
During this same general period of time, Dr. Hulsey noted that the left shoulder examinations revealed problems after August 20, 2004, very similar to those in the right (although perhaps not as pronounced as in the right shoulder). He believed that employee suffered from impingement syndrome, as well as a possible rotator cuff tear. He talked to employee about doing the same type of surgery for the left shoulder as had been done on the right, but employee declined that option.
Notes from employee's medical examinations between August 20, 2004, and February 14, 2006 (the last time Dr. David Volarich saw employee before the June 13, 2007, injury), reveal that employee continued to complain of persistent pain in his left shoulder. During this time, though, employee continued to perform his duties for employer. He received consistently positive evaluations of his work. While his work duties had not changed, employee made some changes in the way he performed those duties. He was not working under any doctor restrictions. As of February 14, 2006, Dr. Volarich's examination confirmed that employee suffered from impingement syndrome and a partial rotator cuff tear in the left shoulder. Dr. Volarich determined that employee had a permanent partial disability relative to his left shoulder of 20 %.
Shortly after the June 13, 2007, injury, employee sought help from Dr. James Emanuel. Ultimately, Dr. Emanuel performed a surgery on September 26, 2007, that was very similar to the one Dr. Hulsey had performed on the right shoulder in 2005. He performed a subacromial decompression and distal clavicle resection. His postoperative diagnosis for the left shoulder was subacromial bursitis with a spur and AC joint arthritis.
As of December 21, 2007 (after a couple of follow-up examinations that showed employee's continuing improvement regarding pain and function), Dr. Emanuel's office issued the following report:
Patient is doing very well with no complaints of the shoulder. . . . He has full range of motion his left shoulder symmetrical the right passive and active. $5 / 5$ strength with negative speeds and supinator tests. . . . He is discharged from our care concerning the shoulder.
Employee's only complaint during that examination was regarding pain in his knee.
After examining employee on October 15, 2008, Dr. Volarich found that employee's June 13, 2007, injury was the substantial contributing factor and the prevailing factor causing the progression of employee's left shoulder impingement syndrome that ultimately led to the surgery by Dr. Emanuel. Dr. Volarich admitted that his diagnosis for employee was the same as he made in February 2006 and that such problem was
the same one from which employee had suffered since 2004. Dr. Volarich opined that employee's left shoulder disability had increased by another 25 %. He based this opinion primarily on the loss of additional range of motion and the fact that bursitis was present when Dr. Emanuel performed the surgery and had not been present before June 13, 2007.
Dr. Volarich admitted, though, that bursitis was not a condition that usually would show up on the MRIs previously performed. He also admitted that employee may have had a "little bit" of bursitis and may have had a thickened bursa prior to June 13, 2007.
In his October 15, 2008, report, Dr. Volarich cites Dr. Emanuel as support because Dr. Emanuel was employee's surgeon and because Dr. Emanuel opined that employee's June 13, 2007, injury was the prevailing factor in the development of the left shoulder condition. But Dr. Volarich admitted that Dr. Emanuel's opinion was based on an inaccurate history provided by employee -- that employee did not suffer from left shoulder pain prior to the June 13, 2007, injury. Dr. Volarich admitted that the bone spur and arthritis pre-dated June 13, 2007. He admitted that prior to such date, employee suffered from all the following complaints connected with the left shoulder: pain, pain with overhead activity, limited range of motion, popping and cracking, difficulty lifting, pain radiating into the neck and down the left arm, increased pain when lying down, increased pain when the arm was used extensively, increased pain after driving more than an hour, and some atrophy.
Lastly, Dr. Volarich testified that his additional disability rating was influenced by employee's decision to surgically address his on-going left shoulder problems, even though a number of factors may have played a part in employee's decision to earlier decline such option (including the fact that he was still trying to recuperate from surgery on his right shoulder, which had not gone as well as hoped).
During his October 2008 examination and in his testimony, employee indicated that he had returned to work without restrictions and continued with his regular duties in June 2007 after seeking initial care from Barnes Care West and Dr. Emanuel (who initially administered an injection into employee's shoulder). Employee was involved in strenuous work activity up through some point approximately a month after the June 13, 2007, injury. At that later time, employee was performing concrete work and suffered a flare-up of his low back problems. Employee and Dr. Volarich both ultimately attributed employee's inability to work and inability to compete in the open market to employee's back problems after June 13, 2007. Employee testified that his back issues were in no way linked to the June 13, 2007, injury. Delores Gonzalez, employee's vocational expert, also made her assessments after including employee's back problems that arose after the June 13, 2007, injury that is the subject of the workers' compensation claim before us.
Dr. Russell Cantrell examined employee on August 11, 2009. Consistent with Dr. Emanuel's post-operative report in December 2007, Dr. Cantrell no longer found any symptoms in employee that pointed to subacromial bursitis or impingement syndrome. But employee did have such symptoms leading up to his September 2007 surgery. Dr. Cantrell did not believe that the June 13, 2007, injury was the prevailing factor in causing the left shoulder injury that
Injury No.: 07-057037
Employee: Donald Kaucher
necessitated employee's surgery. He based this opinion on the chronic left shoulder symptoms and diagnoses dating back to 2004. Both the AC joint arthritis and impingement syndrome pre-existed June 2007. And employee had consistently reported his left shoulder complaints since 2004.
Dr. Cantrell testified that the June 13, 2007, injury may have aggravated employee's preexisting arthritis and impingement; but that such activity was not the prevailing factor for causing employee's shoulder problems or the resulting surgery. Dr. Cantrell believed employee had a 10\% disability relative strictly to the left shoulder. He assessed only 3\%, however, of such total permanent partial disability to the June 13, 2007, injury. Dr. Cantrell confirmed that employee had sustained additional loss in his left shoulder's range of motion as a result of the June 13, 2007, injury.
Like the administrative law judge, we found the evidence from Dr. Cantrell to be more consistent, logical, and credible than the evidence of Dr. Volarich and Ms. Gonzalez. Even Dr. Cantrell, though, confirmed that employee suffered an increase in his left shoulder disability as a result of the June 13, 2007, injury. Dr. Cantrell assessed an additional 3\% disability with respect to that incident. Dr. Volarich assessed an additional 25\% disability related to such incident. Like the administrative law judge, we are persuaded that 10 % represents the best estimate of employee's increased disability directly attributable to the June 13, 2007, injury.
And employee did not become permanently totally disabled as a result of the activities leading up to such date. As indicated above, employee had returned to his normal duties after June 13, 2007. It was only after a later event, in which employee was performing concrete work, that employee suffered additional back problems that appeared to have caused him to stop working for employer. That later event is not the subject of this claim or appeal. Consequently, we conclude that employee suffered a 10\% permanent partial disability referable to his left shoulder as a result of the June 13, 2007, injury.
The question that remains is to what extent the Second Injury Fund should be liable for employee's increased disability. Section 287.220.1 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "[a]ll cases of permanent disability where there has been previous disability . . . ." The statute sets for