Kenneth Dixon v. Jefferson Asphalt Co.

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 06-057579

Employee: Kenneth Dixon

Employer: Jefferson Asphalt Co. (Settled)

Insurer: General Casualty Company of Wisconsin (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated April 5, 2012, as supplemented herein.

On June 20, 2006, employee injured his left forearm at work when a backhoe hit him. Employee settled his permanent partial disability claim against employer/insurer. Employee proceeded to final hearing of his claim against the Second Injury Fund.

The ALJ found that as a result of employee's primary injury he sustained 15\% permanent partial disability of the left forearm at the 200 week level. The ALJ further found that " $[t]$ he disability imposed on [employee] by his preexisting cardiac and cervical spine injuries is similarly found to be 20 percent of the body...." The ALJ then concluded that [t]he synergistic effect or disability above and beyond the simple sum of the disabilities to the left forearm from the June 20, 2006, accident and injury and the preexisting cardiac and cervical spine injuries is two and three quarters percent of the body..." and found the Second Injury Fund liable for the same.

The Second Injury Fund appealed to the Commission alleging that the ALJ erred in awarding employee compensation from the Second Injury Fund because one or both of employee's preexisting disabilities did not meet the statutory threshold of permanent partial disability required under § 287.220.1 RSMo.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are adopted and incorporated by the Commission, herein.

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005, unless otherwise indicated.

The Second Injury Fund largely relies on a recent Missouri Court of Appeals for the Western District decision, Treasurer v. Witte, 2012 Mo. App. LEXIS 1093 (Mo. App. Sep. 4, 2012), for its argument that the ALJ erred in combining employee's preexisting cardiac and cervical spine conditions to meet the preexisting "body as a whole" statutory threshold under § 287.220.1 RSMo. The Second Injury Fund argues that according to Witte, the ALJ was required to consider the cervical spine and cardiac conditions separately. The Second Injury Fund argues that, as the ALJ's award stands, it violates § 287.220.1 RSMo in that one, or both, of the preexisting disabilities does not meet the threshold required for Second Injury Fund liability. ${ }^{2}$

In Witte, the Commission reversed an ALJ's award denying a claim for benefits against the Second Injury Fund. The Commission found that the claimant in Witte suffered from the following permanent partial disabilities: 10 % of the body as a whole referable to diabetes, 10 % of the body as a whole referable to the claimant's gastrointestinal condition, 10 % of the body as a whole referable to the claimant's psychiatric problems, 10 % of the right leg at the 207-week level referable to the claimant's childhood right leg injury, and 5\% of the body as a whole referable to the lumbar spine. Witte, 2012 Mo. App. LEXIS 1093 at *3-4. The Commission believed that the ALJ had denied the claimant enhanced permanent partial disability benefits against the Second Injury Fund on the basis that each of the claimant's preexisting disabilities, considered in isolation, must meet the minimum thresholds set out in § 287.220.1 RSMo. The Commission concluded that there was no support for such a proposition in Missouri's Workers' Compensation Law and, instead, found that the ALJ should have calculated the claimant's "overall preexisting permanent partial disability" by converting all of his preexisting permanent partial disabilities into a common unit of measurement - weeks of compensation - and then determining whether the claimant's "overall preexisting permanent partial disability" satisfied the 50-week minimum threshold set forth in § 287.220.1 RSMo. Id.

Based upon the aforementioned, the Commission then calculated the claimant's weeks of compensation as follows: 40 weeks for employee's diabetes, 40 weeks for his psychiatric problems, 40 weeks for his spastic colon, 20.7 weeks for his right leg, and 20 weeks for his low back. The Commission concluded that the sum of the preexisting disabilities is 160.7 weeks and easily meets the 50-week threshold. Id. at *5.

The Second Injury Fund sought review of the Commission's decision in Witte. The Second Injury Fund argued on appeal that the Commission erroneously interpreted § 287.220.1 RSMo. The Second Injury Fund asserted that the plain language of § 287.220.1 RSMo "must be interpreted to require each preexisting PPD, considered in isolation, to meet either the 50-week minimum threshold, if an injury to the body as a

[^0]

[^0]: ${ }^{2}$ For permanent partial disability enhancement awards, § 287.220.1 RSMo requires preexisting permanent partial disabilities of the body as a whole to equal a minimum of 50 weeks (or 12.5 % ) of compensation before Second Injury Fund liability is triggered. The Second Injury Fund argues that because the ALJ found that employee's cardiac and cervical conditions combine to equal only 20\% permanent partial disability, the two disabilities cannot both individually meet the 12.5 % threshold.

whole, or the 15\% PPD minimum threshold, if an injury to a major extremity, before Fund liability is triggered."

In response to the Second Injury Fund's "stacking" argument, the claimant in Witte relied on Shipp v. Treasurer of Mo., 99 S.W.3d 44 (Mo. App. 2003). In Shipp, the Commission adopted an ALJ's finding that a claimant had a "preexisting PPD of the right wrist and right elbow which were found to constitute fifteen percent PPD of the right upper extremity at the level of the shoulder." Id. at 49. In Shipp, the Second Injury Fund cross-appealed the Commission's findings, asserting that "the [C]omission could not combine or 'stack' claimant's preexisting injuries to her right elbow and right wrist in order to meet the required fifteen percent PPD of a major extremity, which triggers potential [Fund] liability." Id. at 51-52. The Missouri Court of Appeals for the Eastern District affirmed the Commission's decision in Shipp, concluding that "[i]f a claimant has multiple injuries to a major extremity at various levels, it may be appropriate, depending on the facts and circumstances, to rate the percentage of disability to the entire major extremity." Id. at 53.

The court in Witte distinguished its facts from those in Shipp by stating the following:

The court in Shipp addresses only the stacking of separate disabilities at different levels to the same major extremity. It does not stand for the proposition that all of a claimant's preexisting PPDs, regardless of whether they are injuries to the body as a whole or injuries to a major extremity, can be 'stacked' or 'combined' to determine whether the minimum thresholds were satisfied. And the Shipp court narrowly tailored its holding to indicate that such 'stacking' of injuries to a major extremity is appropriate in limited situations depending upon the facts and circumstances surrounding the injuries. Thus, the Commission's calculation of [c]laimant's 'overall' preexisting PPD, regardless of the facts and circumstances surrounding those PPDs, differs significantly from the court in Shipp affirming the Commission's rating of the claimant's injuries to her wrist and elbow as a 15\% PPD to the claimant's upper right extremity. Shipp, therefore, cannot justify the Commission's calculation of [c]laimant's 'overall' preexisting PPD in order to satisfy the minimum thresholds set forth in § 287.220.1.

Witte, 2012 Mo. App. LEXIS 1093 at *28.

The court in Witte concluded that the Commission erred as a matter of law in finding that each of the claimant's injuries, considered in isolation, need not satisfy the minimum thresholds in § 287.220.1 RSMo. The court reversed the Commission's decision. However, due to there being nine other pending appeals in all three districts of the Court of Appeals involving the proper interpretation of § 287.220.1, and because of the general interest and importance of the issues involved in the case, the court ordered the case transferred to the Missouri Supreme Court. At the time of this award, Witte is still pending with the Missouri Supreme Court.

We find that in addition to the decision in Witte not being final, this case is distinguishable from Witte in that in this case the only two preexisting disabilities added together to meet the 50-week threshold are "body as a whole" disabilities, whereas, in Witte, the Commission combined "body as a whole" disabilities with "major extremity" disabilities to meet the 50-week threshold. In other words, this case does not involve mix-matching preexisting "body as a whole" disabilities with "major extremity" disabilities to meet the $\S 287.220 .1$ threshold.

Section 287.190.1 RSMo defines "scheduled" or "extremity" injuries including, but not limited to, injuries to a person's hand, elbow, shoulder, foot, knee, and hip. "Nonscheduled" or "body as a whole" injuries are defined by § 287.190.3 RSMo, which states, in pertinent part:

For permanent injuries other than those specified in the schedule of losses, the compensation shall be paid for such periods as are proportionate to the relation which the other injury bears to the injuries above specified [in subsection 1], but no period shall exceed four hundred weeks, at the rates fixed in subsection 1. The other injuries shall include permanent injuries causing a loss of earning power.

In this case, the ALJ classified that employee suffered from preexisting "body as a whole" injuries attributable to employee's cervical spine and cardiac conditions. The Second Injury Fund does not contest that either of these preexisting conditions is not properly categorized as a "body as a whole" injury.

As a result of employee's cervical spine and cardiac conditions, the ALJ concluded that employee's weeks of compensation related to his preexisting "body as a whole" injuries was 80 weeks. ${ }^{3}$

The Second Injury Fund argues that one or both of employee's preexisting disabilities does not equate to a minimum of 50 weeks of compensation and, therefore, employee's claim against the Second Injury Fund should be denied.

We find that the Second Injury Fund ignores our legislature's use of the word "disability" in § 287.220.1 RSMo. For example, within the first sentence of § 287.220.1, the statute describes a person with a "preexisting permanent partial disability" who sustains a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability ... caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself ..." (emphasis added).

Thereafter, in the second sentence of $\S 287.220 .1, the General Assembly refers to "disability" as follows, " [t]$ he degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained ..." (emphasis added).

[^0]

[