Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge awarding permanent total disability benefits against the Second Injury Fund is in error, and should be reversed.
Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." The Fund is liable for permanent total disability benefits only where the work injury combines with a prior permanent partial disability to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007).
Before the primary injury in this case, this 47-year-old employee was relegated to parttime positions as a result of a preexisting history of seriously disabling chronic pain conditions including Fibromyalgia, arthritis, reflex sympathetic dystrophy, degenerative joint disease, and carpal tunnel syndrome. Employee also suffered from depression. Employee has been on Social Security disability benefits since the late 1990's. Since that time, employee has never worked more than 20 hours per week, and has never worked for any single employer longer than about 6 months. Before the work injury, employee would lie down one to two times per day for relief from her pain conditions. When employee worked, she was in pain. At the end of the day, she would go home, take a pain pill, and lie down for the rest of the night.
All of the foregoing are limitations that employee suffered before the primary injury; all of the foregoing are classic indicators for permanent total disability. I believe the vocational expert Wilbur Swearingin most credibly evaluated employee's preexisting condition when he opined that employee was permanently and totally disabled before the work injury. I believe the majority misreads Mr. Swearingin's opinion when they construe it as supportive of an award of permanent total disability benefits against the Second Injury Fund. I also note that employee's own medical expert opined that her work after 1997 did not represent work in the open labor market.
On a more fundamental level, I believe the majority's conclusion that this employee was not permanently and totally disabled prior to the work injury runs directly contrary to a long history of decisions from administrative law judges, this Commission, and from the courts awarding permanent total disability benefits to employees with similar, or even less limiting, disabilities. Far from dispositive, I consider Laturno v. Carnahan, 640 S.W.2d 470 (Mo. App. 1982) to be a case that speaks to the timing of payments from the Second Injury Fund. The dicta cited by the majority for abandoning the wellestablished test for permanent total disability cannot change the reality that if this employee were pointing to the same limitations and disabling conditions after a work injury, no reasonable person could seriously contend that she was capable of competing for work in the open labor market.
In sum, I find no support in the Missouri Workers' Compensation Law for the proposition that we should throw out the test for permanent total disability simply because the employee was able to eke out an extremely restricted employment history. I disagree with the majority's choice to credit Mr. England. I credit instead Mr. Swearingin and find that employee was permanently and totally disabled before the work injury of February 25, 2009. It follows that there is no Second Injury Fund liability, because there can be no "combination" of disabilities where employee was already permanently and totally disabled at the time of the primary injury. I would reverse the decision of the administrative law judge.
Because the majority has determined otherwise, I respectfully dissent.
James G. Avery, Jr., Member