We affirm and adopt the award of the administrative law judge, as supplemented herein.
The award and decision of Administrative Law Judge Margaret Ellis Holden issued November 28, 2012, is attached and incorporated by this reference.
We approve and affirm 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.
Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of July 2013.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
John J. Larsen, Jr., Chairman
DISSENTING OPINION FILED
James G. Avery, Member
Curtis E. Chick, Jr., Member
Attest:
BISSENTING OPINION
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 63-year-old employee suffered from an overwhelming array of preexisting disabling conditions of ill-being, including Moyamoya disease (causing headaches, seizures, and balance problems), chronic low back pain, bilateral carpal tunnel syndrome with surgeries, bilateral knee surgeries including a total knee replacement on the right, a C5-C6 discectomy and fusion, right rotator cuff tear with surgery, a fractured right ankle, diagnoses of fibromyalgia and osteoarthritis affecting both upper and lower extremities, a diagnosis of depression, and multiple other surgeries including a partial hysterectomy, appendectomy, craniotomy, surgeries to both feet, bladder suspension, and gallbladder surgery. After she was determined eligible for Social Security Disability benefits in 1992, employee spent approximately fifteen years out of the work force before going to work at a dress shop working only 8 hours per week. Employee left that job because she was unable to perform her duties owing to her bilateral upper extremity problems. From there, employee took a part-time job with employer.
Before the work injury, employee had medical restrictions limiting her to sedentary work, was unable to perform prolonged activity on her feet, was limited in her ability to crawl, climb, and squat, was unable to perform overhead work on a sustained basis, was unable to bend without pain, and was unable to perform any repetitive upper extremity activities such as pinching and grasping. Employee only worked about 6.5 hours per day for employer from March 2007 to May 2007; this was reduced to 4 hours per day during June and July 2007; and reduced even further in August 2007, when employee stopped riding the noon bus route. Instead, employee would go home and take a nap during the noon hour. Employee explained that she had to reduce her hours for employer because the job was taking a toll on her.
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, James England, most persuasively evaluated employee's preexisting condition when he opined that employee was permanently and totally disabled before the work injury. In rejecting Mr. England's testimony, the majority fails to note that even employee's own medical expert, Dr. Parmet, agreed that he might have found employee to be permanently and totally disabled had he seen her for purposes of an independent medical evaluation in 2005.
I disagree with the majority's reasoning finding the fact of employee's employment at the time of the primary injury to be conclusive proof of her ability to compete in the open labor market. Far from dispositive, I read Laturno v. Carnahan, 640 S.W.2d 470 (Mo. App. 1982) as a case that speaks to the timing of payments from the Second Injury Fund. The dicta cited by the majority for abandoning the well-established 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. The 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.
I believe the majority's position is also inherently contradictory. If we are to regard the fact of an employee's past employment as dispositive proof that she was not permanently and totally disabled before the work injury, I fail to see how we can then conclude that this employee was rendered permanently and totally disabled after the work injury-where employee went back to the same job. It is uncontested that employee was showing up and performing her job in line with employer's expectations until December 2009, almost a full year after the primary injury. If the fact of employee's working this job is dispositive proof of her ability to compete in the open labor market before the work injury, why is it not dispositive afterward? The majority's analysis does nothing to relieve this contradiction.
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 work very limited hours for employer performing a largely sedentary job that was so difficult for her that it required her to take a nap during the day. I disagree with the majority's choice to credit the vocational expert testimony from Michael Lala. I credit instead Mr. England and find that employee was permanently and totally disabled before the work injury of January 8, 2009. It follows that there is no Second Injury Fund liability under § 287.220.1 RSMo, 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