Delton Shepherd v. K & T Enterprises, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-033378

Employee: Delton D. Shepherd

Employer: K \& T Enterprises, Inc. (Settled)

Insurer: Missouri Employers Mutual Insurance Company (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. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated February 4, 2013. The award and decision of Administrative Law Judge L. Timothy Wilson, issued February 4, 2013, is attached and incorporated by this reference.

The Commission further approves and affirms 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 1st day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Delton D. Shepherd

Injury No. 09-033378

Dependents: N/A

Employer: K \& T Enterprises, Inc. (Settled)

Insurer: Missouri Employers Mutual Insurance Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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

Hearing Date: December 5, 2012

Checked by: LTW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: May 14, 2009
5. State location where accident occurred or occupational disease was contracted: Morgan County, Missouri (The parties agree to venue lying in Greene County, Missouri.)
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While engaged in employment with the Employer and attempting to remove guttering, Employee began to slip from the roof and fell approximately eight feet from the edge of the roof, landing on both feet. Although landing on both feet, he landed more on the left foot than the right foot. As a consequence of this work incident Employee sustained an injury to his left lower extremity, which involved a complex severely comminuted calcaneus fracture extending into the subtaler joint, with some minimal extension into the calcaneal joint without displacement.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left Lower Extremity (BAW)
14. Nature and extent of any permanent disability: 33 % to BAW
15. Compensation paid to-date for temporary disability: $\ 10,754.82
16. Value necessary medical aid paid to date by employer/insurer? $\ 33,820.89

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Not Identified
3. Weekly compensation rate: $\ 252.63 (TTD / PTD / PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable: N/A (Employee and Employer / Insurer entered into a Stipulation for Compromise Settlement.)
2. Second Injury Fund liability: Yes

Weeks of permanent partial disability from Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: Yes.

Employee is entitled to permanent total disability benefits ( $\ 252.63 per week) for his lifetime. There is not a weekly differential between permanent partial disability compensation paid by Employer / Insurer and permanent total disability compensation paid by Second Injury Fund. Therefore, in light of Employee reaching maximum medical improvement on May 3, 2010, and Employer / Insurer responsible for 132 weeks of permanent partial disability compensation, payment of permanent total disability compensation by the Second Injury Fund shall take into consideration the 132 weeks of permanent partial disability compensation paid by the Employer. ${ }^{1}$

TOTAL: \$252.63 PER WEEK (LESS 132 WEEKS OF PPD OWED BY EMPLOYER/INSURER) FOR EMPLOYEE'S LIFETIME, EFFECTIVE AS OF MAY 3, 2010.

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Darren Morrison, Esq.

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[^0]: ${ }^{1}$ It is understood that the Employee and Employer / Insurer entered into a Stipulation for Compromise Settlement based upon a compromised settlement, wherein the parties agreed that the Employer / Insurer would pay 110.8 weeks of permanent partial disability compensation. However, the undersigned is not bound by this settlement agreement in the adjudication of this claim, and determined that the work injury caused the Employee to sustain 132 weeks of permanent partial disability.

Employee: Delton D. Shepherd

Injury No. 09-033378

Dependents: N/A

Employer: K \& T Enterprises, Inc. (Settled)

Insurer: Missouri Employers Mutual Insurance Company (Settled)

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on December 5, 2012.

The employee appeared personally and through his attorney, Darren Morrison, Esq. The employer and insurer were not part of the evidentiary hearing, having previously entered into a stipulation for compromise settlement with the employee, resulting in approval by an administrative law judge on or about September 19, 2011. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about May 14, 2009, K \& T Enterprises, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Employers Mutual Insurance Company.

(2) On the alleged injury date of May 14, 2009, Delton D. Shepherd was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about May 14, 2009, the employee sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Morgan County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 252.63 for temporary total disability compensation, permanent partial disability compensation and permanent total disability compensation.

(8) Temporary disability benefits were provided to the employee in the amount of $\ 10,754.82.

(9) The employer and insurer provided medical treatment to the employee, having paid $\ 33,820.89 in medical expenses.

(10) The employee and employer / insurer entered into a stipulation for compromise lump sum settlement for $\ 28,000.00 based on approximate disability of 27.7 percent to the body as a whole, with the employer and insurer remaining responsible for future medical care. An administrative law judge with the Division of Workers' Compensation approved this Stipulation for Compromise Settlement on or about September 19, 2011, which resolved the underlying claim filed against the employer.

(11) The employee, Delton Shepherd, reached maximum medical improvement relative to this claim on May 3, 2010.

The sole issue to be resolved by hearing is as follows:

(1) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of his claim. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Records

Exhibit B ...........Stipulation for Compromise Settlement in Injury No. 09-033378

Exhibit C Deposition of P. Brent Koprivica, M.D.

Exhibit D Deposition of Dale Halfaker, Ph.D.

Exhibit E Deposition of Michael K. Lala, M.A.

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses. However, the Second Injury Fund offered for admission the following exhibit:

Exhibit I Deposition of Delton Shepherd

The exhibit was received and admitted into evidence.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The workers' compensation law for the State of Missouri underwent substantial change on or about August 28, 2005. The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

Background

The employee, Delton Shepherd, is 53 years of age, having been born on January 19, 1960. Mr. Shepherd resides in Sunrise Beach, Missouri.

Mr. Shepherd graduated from high school in 1978. Although he graduated from high school, he received low grades, which he characterized as Ds and Fs. He noted that he was in special education classes from seventh grade to ninth grade. He was then mainstreamed into classes for "slow people" in high school. Also, Mr. Shepherd indicated that he has always had difficulty reading; he is not able to read a newspaper and not able to use a computer. His computer skills are marginal, at best.

As a child, Mr. Shepherd's family moved frequently, which caused him to relocate to different cities. In explaining his childhood, Mr. Shepherd noted that his father was a carpenter, and the family would move whenever his father needed to relocate in order to secure employment.

Mr. Shepherd's employment is varied, and relates primarily to working in labor oriented occupations. This employment history includes factory work as a production worker in an aluminum window and door factory; work as a stocking clerk in a grocery store; landscaping work as a sod layer; welding and fabricating work as a steel fabricator. Mr. Shepherd obtained certification as a welder, but it took him approximately six attempts in order to secure this certification because of his learning disability.

In or around May 2008 Mr. Shepherd obtained employment with the employer, K \& T Enterprises, Inc., working as a laborer. In this employment Mr. Shepherd was responsible for removing old guttering and soffits, and installing new guttering and soffits. Mr. Shepherd's job duties required him to climb ladders and to perform certain lifting activity. He worked off of

ladders and roofs. He continued in this employment until suffering the work-related injury of May 14, 2009.

Prior to sustaining the work injury of May 14, 2009, Mr. Shepherd suffered from a psychological condition, which caused him to present with certain permanent disability. This prior medical condition included consideration of the following disorders:

- Anxiety and Depression: Prior to May 2009, Mr. Shepherd suffered recurrent episodes of depression with anxiety. He received medical treatment for this condition; in 2007 he was diagnosed with a panic disorder and treated this medical condition with prescription medication that included Xanex and Prozac. Dr. Halfaker notes that this psychological condition was likely a significant factor in Mr. Shepherd suffering alcohol dependence.

According to Mr. Shepherd, he suffered anxiety and depression for years, and self medicated through the use of alcohol, resulting in the loss of his family and his wife leaving him because of his alcoholism. This "self medication" often interfered with Mr. Shepherd's ability to work. He would frequently have disagreements with his boss for being late or doing the job improperly because of his alcohol use.

Mr. Shepherd is not presently suffering from the daily effects of alcoholism. Notably, at the time of the work injury Mr. Shepherd was sober, and had not had a drink since 2003.

- Borderline Intellectual Functioning: Prior to May 2009, Mr. Shepherd suffered from borderline intellectual functioning. The nature of this condition rendered Mr. Shepherd a very "concrete" thinker, and caused him to perform tasks slowly, and in some instances not take any action. As a consequence of this condition, Mr. Shepherd experienced limitations in his ability to perform certain occupations. Notably, he was forced to steer away from more intellectual rigorous pursuits and locations, limiting his work to more physical pursuits.

Among the limitations and disabilities experienced by Mr. Shepherd causally related to this condition include his inability to read at a functional level. According to Mr. Shepherd, he cannot fill out a check to pay for something, and cannot read the newspaper. Also, he is not able to complete a job application by himself. In the past, his wife would fill out a sample application for him to copy when he interviewed for a job.

Tests performed by Dale Halfaker, Ph.D., indicate that Mr. Shepherd placed his scoring within the Extremely Low to Borderline range functioning with grade equivalents that ranged from 2.5 to 4.2 . Yet, according to Dr. Halfaker, in being tested with an audio tape Mr. Shepherd possessed greater capacity in listening comprehension.

On or about May 14, 2009, while engaged in employment and performing his work duties with K \& T Enterprises, Inc., Delton Shepherd sustained a work injury while attempting to remove guttering. As he was performing this work, Mr. Shepherd began to slip from the roof and fell approximately eight feet from the edge of the roof, landing on both feet. Although landing on both feet, he landed more on the left foot than the right foot. As a consequence of this incident Mr. Shepherd sustained an injury to his left heel and foot. The injury to the left lower extremity involved a complex severely comminuted calcaneus fracture extending into the subtaler joint, with some minimal extension into the calcaneal joint without displacement.

Mr. Shepherd received initial treatment at Lake Regional Occupational Medicine. Xrays of the left ankle were suggestive of loss of Boehler's angle of the calcaneus. An MRI revealed a complex comminuted calcaneus fracture extending into the subtaler joint. There was also some minimal extension into the calcaneal joint without displacement. He received a referral to a foot and ankle specialists, Dr. Shurnas.

On May 27, 2009, Dr. Shurnas performed an open reduction and internal fixation procedure. Following this surgery Mr. Shepherd continued to experience severe pain in the left foot and heel. In light of this continuing pain Mr. Shepherd underwent injections from Dr. Thornburg. The injections did not provide Mr. Shepherd with any relief, and resulted in him being referred to a pain clinic in early 2010. This treatment included a lumbar sympathetic block, and similar to the other treatment did not provide Mr. Shepherd with any relief from his pain.

On or about May 3, 2010, and while recognizing that Mr. Shepherd continued to present with unresolved pain, Dr. Shurnas released Mr. Shepherd from his care. Further, at the time of this release from treatment Dr. Shurnas opined that Mr. Shepherd had sustained a permanent partial disability of 12 percent to the body as a whole.

Although released from medical care by Dr. Shurnas, in June 2010 Mr. Shepherd began receiving psychiatric treatment for psychological distress associated with his left lower extremity pain. Additionally, Mr. Shepherd continued to receive treatment in the nature of pain management with various physicians. Notably, Mr. Shepherd continues to have plates and screws in his left foot, he continues to experience disabling pain associated with this injury, and he is governed by restrictions and limitations associated with this injury. In this regard, Mr. Shepherd uses a cane when walking. (Mr. Shepherd does not believe he can walk more than 50 to 100 feet.) He occasionally uses an electric cart at Wal-Mart if he tries to go shopping.

Mr. Shepherd has not performed work activities since the day of his injury and is not engaged in any employment. He received temporary total disability compensation for 42.57 weeks following his injury, with payment of this disability compensation ending on March 5, 2010.

P. Brent Koprivica, M.D., testified by deposition on behalf of the employee, Delton Shepherd. Dr. Koprivica performed an independent medical examination of Mr. Shepherd on February 16, 2011. At the time of this examination, Dr. Koprivica took a history from Mr. Shepherd, reviewed various medical records, and performed a physical examination of him. In light of his examination and evaluation of Mr. Shepherd, Dr. Koprivica opined that the work incident of May 14, 2009, was the prevailing factor in causing Mr. Shepherd to sustain injury to his left lower extremity, which involved complex severely comminuted calcaneus fracture extending into the subtaler joint, with some minimal extension into the calcaneal joint without displacement. Further, Dr. Koprivica opined that this injury necessitated receipt of medical care, including an open reduction and internal fixation.

In describing the nature and severity of this injury, Dr. Koprivica opined that the medical care provided to Mr. Shepherd did not resolve fully his symptoms and complaints of pain. According to Dr. Koprivica, Mr. Shepherd continues to suffer "ongoing severe disabling pain in the left lower extremity, that severely impacts his gait capabilities." Dr. Koprivica further notes that while Mr. Shepherd is at maximum medical improvement, he will continue to experience indefinitely future medical treatment, and to suffer disabling pain and be governed by physical limitations and restrictions.

Also, Dr. Koprivica opined that this work injury caused Mr. Shepherd to sustain a permanent partial disability of 30 percent to the body as a whole, without consideration of additional permanent disability associated with psychological or psychiatric overlay. (Dr. Koprivica defers to the mental health professional for assessment of this additional permanent disability.) In explaining his opinion, Dr. Koprivica states,

In assigning permanent partial disability for the physical impairment attributable to this injury, I would note that Mr. Shepherd's limitations on standing and walking capabilities are similar to what one sees in an individual with a poor result from a total hip arthroplasty.

I would note that on a standardized basis, the need to use the wheelchair is actually assigned a standardized sixty (60) percent whole person impairment.

For the physical impairment attributable to the May 14, 2009, injury under Missouri statutes, I would assign a thirty (30) percent permanent partial disability to the body as a whole.

Any additional permanent partial disability apportioned on a psychological / psychiatric basis is to be combined with this permanent partial disability.

In considering whether Mr. Shepherd suffered from any preexisting permanent disability prior to May 14, 2009, Dr. Koprivica indicated that Mr. Shepherd did not present with any physical medical condition that was sufficiently severe to constitute an industrial disability.

However, Dr. Koprivica opined that prior to May 14, 2009, Mr. Shepherd presented with certain preexisting disability referable to psychological / psychiatric medical conditions, for which he deferred to an appropriate mental health expert for assessment of the permanent disability.

In addition, Dr. Koprivica offered an opinion as to whether this May 14, 2009, work injury, considered in isolation, or synergistically in combination with any prior disability, rendered Mr. Shepherd permanently and totally disabled. In rendering this opinion Dr. Koprivica propounded the following testimony:

Q. Were you concerned when you saw him [Mr. Shepherd] on February 16, 2011 that he might be permanently and totally disabled?

A. I was. I mentioned that in my report on Page 19 that I thought it was probable that he was permanently and totally disabled.

Q. Did you have an opinion as to whether or not the last work injury made him permanently and totally disabled?

A. I did.

Q. What was that opinion?

A. My opinion was that the last work injury was not totally disabling in isolation.

Q. And were than able to review and address Mike Lala's report?

A. I was.

Q. After reviewing Mike Lala's report, as well as Dr. Halfaker's report that you had seen previously, and after reviewing your records and your prior examination information, did you reach an opinion as to whether or not this gentleman is permanently totally disabled as a result of the combination effect of his preexisting disability, including psychiatric and borderline intellectual functioning, with the disability resulting from his last work injury?

A. I was.

Q. What is that opinion?

A. My opinion was that he was permanently and totally disabled, and that permanent totally disability arose from the synergistic effect of combining the preexisting industrial disability psychologically, including his Axis 2 diagnosis of borderline intellectual functioning, with the additional disability, both physical and psychological, attributable to the May 14, 2009 work injury. I looked at that issue again, and I did not believe the last

injury alone was totally disabling, but it was the combined effect of that preexistent psychiatric considerations that made him totally disabled.

Dale Halfaker, Ph.D., testified by deposition on behalf of the employee Delton Shepherd. Dr. Halfaker performed a limited psychological evaluation of Mr. Shepherd on May 14, 2009. At the time of this evaluation, Dr. Halfaker took a history from Mr. Shepherd, reviewed various medical records, and performed an examination of him, which included behavioral observations and formal psychological testing. (The psychological testing included the following tests: Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), Woodcock Johnson Tests of Achievement-Third Edition (WJ-III), and the Minnesota Multiphasic Personality InventorySecond Edition (MMPI-2).

In light of his examination and evaluation of Mr. Shepherd, Dr. Halfaker opined that prior to May 14, 2009, Mr. Shepherd suffered from a psychological condition that caused him to present with significant permanent disability. According to Dr. Halfaker, this psychological disability encompassed two psychological conditions: (1) Borderline Intellectual Functioning ${ }^{2}; and (2) Generalized Anxiety Disorder and Depressive Disorder NOS { }^{3}$.

In explaining the nature of Mr. Shepherd's psychological condition associated with Borderline Intellectual functioning, and identifying this condition to involve a permanent psychological disability, Dr. Halfaker propounded the following comments:

While such individuals function at a higher level than those classified as having mental retardation, their cognitive functioning is nevertheless limited, creating problems for everyday functioning, judgment, and academic or occupational achievement. People with a borderline intellectual functioning diagnosis are at a disadvantage when entering unfamiliar and stressful situations, but at the same time can function well enough to make it difficult to casual observers that there is a deficit present requiring assistance until their limited functions are challenged.

The deficits of these individuals often go unnoticed until they enter school settings or other demanding and unfamiliar environments. In these settings, this condition manifests itself in poor academic performance, lack of attention to tasks, and behavioral problems that can stem from the limited cognitive functions, resultant frustration, and emotional immaturity.

As adults, these individuals' functioning can exhibit relatively normal expression of affect though their abstract reasoning tends to be characterized by literal and concrete thinking causing them to miss the point of more abstract information or nuanced social situations. Such individuals may be described as being simple or slow. They are usually able to function on a day-to-day basis without significant assistance, including holding down a simple job and basic responsibilities of maintaining a dwelling.

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[^0]: ${ }^{2}$ This condition is identified by Dr. Halfaker as an Axis II (Personality disorders and Mental Retardation) diagnosis.

${ }^{3}$ This condition is identified by Dr. Halfaker as an Axis I (Clinical disorder and other conditions that may be a focus of clinical attention) diagnosis.

In Mr. Shepherd's case, comparison of the retained academic achievement results to the IQ results did not suggest significant differences to indicate a specific learning disorder. Thus, even while there is no specific learning disorder present, it does appear that this gentleman's impoverished level of cognitive functioning does impact his practical, daily living skills. As such, it is thought that his Borderline Intellectual Functioning represents a chronic, pre-existing, long-term condition that limited his occupational success and served as a hindrance or obstacle to employment in addition to his other pre-existing problems with anxiety, depression, alcohol dependence, and cannabis abuse.

In offering an assessment of permanent disability Dr. Halfaker opined that Mr. Shepherd presented with a permanent psychological disability of 40 percent to the body as a whole. Dr. Halfaker further opines that 32 percent of this disability predates the work injury of May 14, 2009, 3 percent is attributable to the work injury of May 14, 2009, and the remaining 5 percent is attributable to other concomitant stressors in life.

Michael K. Lala, M.A., testified by deposition on behalf of the employee Delton Shepherd. Mr. Lala performed a limited vocational evaluation of Mr. Shepherd on May 10, 2011. At the time of this evaluation, Mr. Lala took a vocational history from Mr. Shepherd, reviewed various medical records, and performed a vocational examination of him, which included certain vocational testing. In light of this vocational evaluation of Mr. Shepherd, Mr. Lala opined Mr. Shepherd is unemployable in the open and competitive labor market, and thus permanently and totally disabled. Mr. Lala further opined that this permanent total disability is "due to the combination of his vocational disabilities and limitations which arise." The vocational disabilities and limitation include the disability attributable to the work injury of May 14, 2009, in combination with the preexisting disabilities attributable to Mr. Shepherd's Borderline Intellectual Functioning and the Generalized Anxiety Disorder and Depressive Disorder NOS.

III.

Nature \& Extent of Permanent Disability

The evidence presented in this case is supportive of a finding that as a consequence of the May 14, 2009, accident, the employee, Delton Shepherd, sustained an accident that arose out of and in the course of his employment with the employer, K \& T Enterprises, Inc. The evidence is further supportive of a finding that as a consequence of this accident, Mr. Shepherd sustained an injury to his left lower extremity, which is the prevailing factor in causing Mr. Shepherd to sustain an injury in the nature of a complex severely comminuted calcaneus fracture extending into the subtaler joint, with some minimal extension into the calcaneal joint without displacement.

Notably, the parties acknowledge and stipulate that Mr. Shepherd sustained a compensable accident on May 14, 2009. Further, the employee and employer and insurer entered into a Stipulation for Compromise Settlement, agreeing to resolve the underlying claim for payment of a lump sum of $\ 28,000.00 based upon, among other consideration, approximate

disability of 27.7 percent to the body as a whole, with the employer and insurer remaining responsible for future medical care.

After consideration and review of the evidence, I find and conclude that the work injury of May 14, 2009, caused the employee, Delton Shepherd, to be governed by certain restrictions and limitations, which constitute a hindrance or obstacle to employment. I further find and conclude that this work injury caused Mr. Shepherd to sustain a permanent partial disability of 33 percent to the body as a whole, which includes consideration of psychological overlay attributable to the work injury.

In addition, I find and conclude that the work injury of May 14, 2009, considered alone and in isolation, does not render Mr. Shepherd permanently and totally disabled.

I find and conclude that the employee, Delton Shepherd, sustained a work injury on May 14, 2009, which caused him to sustain a permanent partial disability of 33 percent to the body as a whole, which includes consideration of psychological overlay attributable to the work injury. Because of this injury, Mr. Shepherd suffers residual pain and discomfort, and is governed by limitations and restrictions. The severity of this injury is sufficiently serious to constitute and presents a hindrance or obstacle to employment or potential employment, but considered alone does not render Mr. Shepherd permanently and totally disabled.

Further, prior to May 14, 2009, Mr. Shepherd suffered from significant pre-existing disabilities referable to two psychological conditions: (1) Borderline Intellectual Functioning; and (2) Generalized Anxiety Disorder and Depressive Disorder NOS. These pre-existing conditions impacted Mr. Shepherd's ability to perform certain activities, and to be governed by limitations and restrictions. These preexisting medical conditions were sufficiently severe to constitute a hindrance or obstacle to employment or potential employment.

The Second Injury Fund argues that the preexisting conditions presented in this case may not be considered in adjudicating Second Injury Fund liability, and identifies several cases in support of its arguments, including Roby v. Tarlton Corp. The cases cited by the Second Injury Fund are distinguishable and not applicable to the present case. Unlike Roby, the employee in this case suffered from a preexisting medical condition in the nature of Borderline Intellectual Functioning, which caused him to present with certain permanent disability, and which was sufficiently severe to constitute an actual hindrance or obstacle to employment, as well a hindrance or obstacle to obtaining reemployment. Notably, Dr. Halfaker discussed the permanent nature of this condition, as it existed prior to May 14, 2009. As highlighted by Dr. Halfaker, this preexisting condition prevented Mr. Shepherd from being able to read sufficiently for him to obtain many different types of employment, and forced him to work in more labor oriented and physically demanding occupations; and this preexisting condition prevented Mr. Shepherd from being able to learn to read more effectively, rendering educational or vocational programs ineffective or inapplicable to his condition.

Similarly, Dr. Halfaker noted that this preexisting condition caused Mr. Shepherd to be a very "concrete" thinker, which caused him to think or respond to circumstances slowly, and at

times to not take any action. In this regard, Mr. Shepherd is not choosing to act slowly, or refusing to take action because of an attitude or desire to achieve some other secondary gain. He is slow, and he takes the action (or inaction) that he does, because that is who he is. The nature of this medical condition caused Mr. Shepherd to pursue labor oriented work and precluded him from engaging in the sedentary occupations.

As a consequence of the preexisting permanent disability attributable to the psychological conditions (Borderline Intellectual Functioning and Generalized Anxiety Disorder and Depressive Disorder NOS), and the permanent disability referable to the left lower extremity, attributable to the work injury of May 14, 2009, Mr. Shepherd is governed by permanent restrictions and limitations that render him unemployable in the open and competitive labor market.

In light of the foregoing, and finding Dr. Koprivica, Dr. Halfaker, and Mr. Lala credible, reliable and worthy of belief, I find and conclude that at the time of the May 14, 2009, injury, Mr. Shepherd presented with a permanent partial disability of 32 percent to the body as a whole (128 weeks) referable to the Borderline Intellectual Functioning and Generalized Anxiety Disorder and Depressive Disorder NOS conditions. I further find and conclude that these preexisting disabilities presented a hindrance and obstacle to employment or potential employment. There is thus competent and substantial evidence supporting a finding that Mr. Shepherd is permanently and totally disabled as a result of a combination of the May 14, 2009, work injury and the preexisting permanent disabilities referable to the Borderline Intellectual Functioning and Generalized Anxiety Disorder and Depressive Disorder NOS conditions.

Accordingly, after consideration and review of the evidence, I find and conclude that as a consequence of the accident of May 14, 2009, and resulting disability referable to the left lower extremity (complex severely comminuted calcaneus fracture extending into the subtaler joint, with some minimal extension into the calcaneal joint without displacement), in combination with the preexisting industrial disabilities referable to the Borderline Intellectual Functioning and Generalized Anxiety Disorder and Depressive Disorder NOS conditions, Mr. Shepherd is permanently and totally disabled. He is unemployable in the open and competitive labor market as a consequence of the combination of these injuries and disabilities. Therefore, the Second Injury Fund is ordered to pay to the employee, Delton Shepherd, the sum of $\ 252.63 per week for the employee's lifetime. The payment of permanent total disability compensation by the Second Injury Fund is effective as of May 3, 2010, when he reached maximum medical improvement. Further, the payment of permanent total disability compensation shall take into consideration 132 weeks of permanent partial disability, which is attributable to the employer and insurer.

This award is subject to modifications as provided by law.

An attorney's fee of 25 percent of the benefits ordered to be provided is hereby approved, in favor of Darren Morrison, Esq., and shall be a lien against the proceeds until paid. Interest as provided by law is applicable.

Made by: /s/ L. Timothy Wilson

L. Timothy Wilson

Administrative Law Judge

Division of Workers' Compensation