Kathleen Wright v. Sitton Motor Lines, Inc.

employee to experience unpredictable bouts of balance problems if she doesn't take medication. The Second Injury Fund argues that employee fell on August 4, 2009, due to Meniere's disease, and thus her injury is not compensable.

At the outset, we note that the parties and the administrative law judge appear to have inappropriately framed this issue as one of "medical causation." We believe that when the Second Injury Fund argues employee fell because of an idiopathic cause, it is raising an issue of legal causation. The distinction becomes clear when we recognize that the Second Injury Fund is not arguing that employee didn't actually break her arm as a result of the fall, but instead that her injuries are not compensable under § 287.020.3(3) RSMo because they resulted from an idiopathic cause. This is a defense for the Second Injury Fund, as opposed to an element of employee's claim.

The distinction is not merely of academic concern. Because the administrative law judge analyzed the issue as one of medical causation, she inappropriately applied the burden of proof to employee. The Second Injury Fund's defense is based on the factual proposition that employee experienced an episode of Meniere's-related dizziness which caused her to fall and break her arm on August 4, 2009. As a result, it is the Second Injury Fund's burden to prove that fact under § 287.808 RSMo, which provides: "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." See also Taylor v. Contract Freighters, Inc., 315 S.W.3d 379, 382 (Mo. App. 2010). We believe the Second Injury Fund misstates the law when it argues employee had the burden to provide expert testimony establishing she didn't fall because of Meniere's disease. We find no support in the relevant case law for such an analysis, and given the circumstances of this case, we believe the statute clearly places the burden of proof with the Second Injury Fund.

Turning to the substance of the Second Injury Fund's defense, we believe it fails because employee (who provided the only firsthand testimony) identified her foot twisting on a piece of concrete as the reason she fell; employee was specifically asked about Meniere's disease and testified that she was not suffering from Meniere's-related symptoms at the time and that Meniere's disease played no role in causing her to fall. The Second Injury Fund ignores employee's testimony (and the administrative law judge's finding that employee was credible) and instead points to the deposition of employee's vocational expert Jeffrey Magrowski, who "thinks" Meniere's-related dizziness played a role in causing employee to fall. Mr. Magrowski did not identify any source for this belief, and it appears to us that Mr. Magrowski was merely offering an idle speculation based on a question that suggested employee was diagnosed with Meniere's disease around the same time of the August 2009 accident. We note that Mr. Magrowski's testimony on the topic conflicts with his report, wherein he recorded employee's history that "she climbed out of her truck and fell on uneven ground." Transcript, at 127. Finally, we note that Mr. Magrowski is not a medical expert, so it would appear that he is not even qualified to opine regarding the effects of Meniere's disease or the likelihood that symptoms of that disease would cause employee to fall. For all of these reasons, Mr. Magrowski's vague and speculative testimony about Meniere's disease does not, in our view, provide a compelling reason to

disturb the administrative law judge's finding that employee provided credible testimony about why she fell.

Because there is no credible evidence on this record to support the Second Injury Fund's defense, we conclude that employee's injuries did not result directly or indirectly from an idiopathic cause for purposes of $\S 287.020 .3(3)$ RSMo.

The primary injury left employee with a 10-pound right-arm lifting restriction, an inability to perform twisting actions such as taking a top off a soda bottle, and pain and weakness in her right arm. In addition, employee suffered the following preexisting disabling conditions: (1) a left knee meniscal tear requiring surgery; (2) right knee degenerative arthritis requiring a total knee replacement; (3) a bulging L4-5 disc resulting from a low back injury when employee was thrown from a horse; (4) a torn rotator cuff in employee's left shoulder; and (5) Meniere's disease. Dr. Berkin and Mr. Magrowski (the only experts to testify) agree that the combination of employee's primary injury and her limitations stemming from the preexisting conditions render her unable to compete for work. The courts have articulated the following test for determining whether an employee is permanently and totally disabled:

The test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. The primary inquiry is whether an employer can reasonably be expected to hire the claimant, given his present physical condition, and reasonably expect the claimant to successfully perform the work.

Dunn v. Treasurer of Mo., 272 S.W.3d 267, 272 (Mo. App. 2008).

The Second Injury Fund ignores the foregoing test and instead argues the determinative inquiry should be whether employee is physically capable of performing some work given the restrictions from her doctors, pointing to some testimony from Mr. Magrowski. But the Second Injury Fund fails to provide the appropriate context for Mr. Magrowski's comments, which are as follows:

With the limitations from Dr. Strege, Ms. Wright could not return to her past employment but probably perform some type of work. However, I do not believe she could compete successfully in the open labor market for a job based upon her lack of skills.

Transcript, 131-32 (emphasis added).

We believe the Second Injury Fund also misstates the record when it suggests employee never looked into other employment after employer closed its doors in late 2009; employee specifically testified that she did seek other employment during a time that she claimed and received unemployment benefits, but that she was unsuccessful finding work and instead sought, and obtained, disability benefits. Transcript, 16-18.

We agree with the administrative law judge that the credible evidence best supports a finding that employee is permanently and totally disabled. But because the administrative law judge's summary comments do not identify the analysis she applied to resolve the question of Second Injury Fund liability, we provide the following supplemental findings and conclusions.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, employee must show that she suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry 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.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

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 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 consider employee's preexisting bilateral knee problems, low back injury, left shoulder injury, and Meniere's disease, we are convinced that each of these conditions were serious enough to represent a hindrance and obstacle to employment at the time of the work injury, because we believe that a cautious employer could reasonably perceive such conditions 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. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995). Accordingly, we conclude that at the time employee sustained the primary injury, employee suffered from preexisting permanent partially disabling conditions that were serious enough to constitute hindrances or ob