"Section 287.220 creates the Second Injury Fund and sets forth when and in what amounts compensation shall be paid from the [F]und in '[a]ll cases of permanent disability where there has been previous disability." For the Fund to be liable for permanent, total disability benefits, the claimant must establish that: (1) he suffered from a permanent partial disability as a result of the last compensable injury, and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. Section 287.220.1. The Fund is liable for the permanent total disability only after the employer has paid the compensation due for the disability resulting from the later work-related injury. Section 287.220.1 ("After the compensation liability of the employer for the last injury, considered alone, has been determined ..., the degree or percentage of ... disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined...."). Thus, in deciding whether the Fund is liable, the first assessment is the degree of disability from the last injury considered alone. Any prior partial disabilities are irrelevant until the employer's liability for the last injury is determined. If the last injury in and of itself resulted in the employee's permanent, total disability, then the Fund has no liability, and the employer is responsible for the entire amount of compensation. ABB Power T \& D Company v. William Kempker and Treasurer of the State of Missouri, 263 S.W.3d 43, 50 (Mo.App. W.D. 2007).
The test for permanent, total disability is the worker's ability to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Id. at 48 .
To analyze the impact of the 1993 amendment to the law, the courts have focused on the purposes and policies furthered by the statute:
The proper focus of the inquiry as to the nature of the prior disability 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. That potential is what gives rise to prospective
employers' incentive to discriminate. Thus, if the Second Injury Fund is to serve its acknowledged purpose, "previous disability" should be interpreted to mean a previously existing condition that a cautious employer could reasonably perceive 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. A condition satisfying this standard would, in the absence of a Second Injury Fund, constitute a hindrance or obstacle to employment or reemployment if the employee became unemployed. Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo.App. E.D. 1995).
Section 287.220.1, RSMo 1994, contains four distinct steps in calculating the compensation due an employee, and from what source:
- The employer's liability is considered in isolation- "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no pre-existing disability."
- Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered;
- The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and
- The balance becomes the responsibility of the Second Injury Fund. Nance v. Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).
Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. Sanders v. St. Clair Corp., 943 S.W.2d 12, 16 (Mo.App. S.D. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." Tiller v. 166 Auto Auction, 941 S.W.2d 863, 865 (Mo.App. S.D. 1997).
Based on the entire record, the claimant suffered a compensable work related injury in 2008 resulting in a 50 % permanent partial disability to the low back ( 200 weeks). At the time the last injury was sustained, the claimant had a 121 / 2 % pre-existing permanent partial disability to the low back ( 50 weeks). The permanent partial disability from the last injury combines with the pre-existing permanent partial disability to create an overall disability that exceeds the simple sum of the permanent partial disabilities by 10 %.
The credible evidence establishes that the last injury, combined with the pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. The claimant testified credibly about significant ongoing complaints associated with these injuries. The claimant changed how he performs many activities both at home and at work due to the combination of the problems. The claimant testified that as a result of the combination of the problems, he had limited ability to lift items.
The principal issue in this case is whether the claimant is employable in the open labor market and therefore, permanently and totally disabled due to his permanent partial disability from the 2008 accident in combination with his pre-existing permanent partial disability. Mr. England credibly testified that this determination depended on whether one places credence on the findings of Dr. Lennard of the findings of Dr. Volarich.
Dr. Lennard, a physician certified in physical medicine and rehabilitation, opined that the claimant should avoid lifting more than 25 pounds, avoid prolonged bending activities, and that the claimant could go back to work within those restrictions even considering the prior back surgery. See Dr Lennard deposition, pages 10, 21, 22. Dr. Lennard testified that as a part of his medical practice, he treats patients with similar injuries to the claimant on a regular basis. See Dr Lennard deposition, page 22 .
Dr. Volarich placed the following restrictions on the claimant referable to the spine after October 28, 2008: avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing, and other similar tasks to an as needed basis; not handle any weight greater than 20 pounds, and limit this task to an occasional basis assuming proper lifting techniques; not handle weight over his head or away from his body, nor should he carry weight over long distances or uneven terrain; avoid remaining in a fixed position for any more than about 30 minutes at a time including both sitting and standing; and change positions frequently to maximize comfort and rest when needed. However, he opined that the claimant is unable to engage in any substantial gainful activity and cannot be be expected to perform in an ongoing working capacity in the future. Dr. Volarich found that the claimant cannot be reasonably expected to perform in an ongoing basis for 8 hours per day, 5 days per week throughout the work year. See Dr Volarich deposition, page 11. Dr. Volarich opined that based on his medical assessment alone, the claimant is permanently and totally disabled as a direct result of the work related injury of October 2008, in combination with the pre-existing low back surgical repair. See Dr Volarich deposition, page 12.
The defense argued in its well written brief that Dr. Lennard's findings bear more credibility than those of Dr. Volarich:
However, the opinions of Dr. Lennard should be given more weight than those of Dr. Volarich. Dr. Lennard treated and examined the Claimant on at least 14 occasions, while Dr. Volarich only examined the Claimant once and at the request of Claimant's Attorney four years after the primary work injury. Because Dr. Lennard examined Claimant on a regular basis, Dr. Lennard was more aware of Claimant's complaints, symptoms, and limitations. Also, Dr. Lennard performed the injections to Claimant. In addition, Dr. Lennard treats the types of injuries that Claimant had on a regular basis as a part of his practice. Dr. Lennard was fully aware of Claimant's pre-existing back injury which was Claimant's only preexisting injury. For these reasons, Dr. Lennard's opinions should be given more weight than Dr. Volarich's opinions. See Defense Brief.
In reviewing the two medical opinions, one difference between these two different visions of the claimant's capabilities is the temporal relationship between the observations of the physicians. Dr. Lennard last examined the claimant on November 8, 2010. See Dr Lennard deposition, page 14. Dr. Volarich examined the claimant almost a year later on October 20,
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Ronald Herbert
- See Dr. Volarich deposition, page 6. Another difference is that Dr. Lennard did not have an opportunity to evaluate the claimant after his course of medical care from the employer was completed on February 14, 2011. The medical records submitted showed active medical care until that date but no further medical care by way of medication, physical therapy, or injections, or physical therapy after that date. At the time of Dr. Lennard's last appointment, the claimant was still receiving extensive medication and injections in his back for pain relief. Perhaps the termination of those medical services resulted in a diminished medical condition reflecting Dr. Volarich's perception of the claimant's capabilities. The claimant's presentation at the hearing was more consistent with Dr. Volarich's perception of the claimant. Dr. Volarich opined that the claimant could not sustain full-time employment for a 40 -hour work week. This appears to be consistent with the legal standard rather than determining whether the claimant is able to engage in a part time position. Dr. Lennard offered no contrary opinion. Based on these considerations, Dr. Volarich's findings seem more credible.
The defense also contests whether the claimant's pre-existing back injury was not an obstacle or hindrance to employment:
Specifically, Claimant testified that he had no limitations at his job because of his pre-existing back injury. Claimant admitted that prior to October of 2008 he had no problems physically doing his job. In addition, Dr. Volarich found that with regard to work and other activities referable to the spine prior to October 28, 2008, limitations were not required. (EE Exhibit A). Dr. Volarich testified that after Claimant's discectomy in the late 1980s, Claimant was able to return to work and perform heavy labor without having to favor his low back.
Also, Claimant continued to perform physical activities on a daily basis outside of work despite his pre-existing back injury. Claimant golfed 5 days a week, mowed his yard, fished and hunted up and until the primary work injury. Claimant may have had some aches and pains after performing a heavy job, but he was able to continue to perform his job duties and continue his hobbies after the pre-existing back injury. Claimant's testimony and the lack of restrictions certainly supports that his pre-existing injury to his back was not an obstacle or hindrance to employment. As a result, the SIF is not liable for any permanent partial disability to the Claimant. See Defense Brief.
It would have been logical to inquire of the only vocational expert to comment on this question, but a search of the record discloses no such evaluation from Mr. England. Dr. Lennard did not comment on this issue. However, Dr. Volarich opined in his medical report, "Pertaining to his medical conditions preexisting 10/28/08, it is my opinion that the following permanent industrial disabilities exist and are a hindrance to his employment or re-employment" referring to the claimant's pre-existing permanent partial disability to his low back. See Exhibit B, page 10, in Dr. Volarich deposition. Legal counsel elected not to cross examine Dr. Volarich on this point. The report was attached to the deposition and admitted into evidence by consent of counsel with only objections relating to hearsay. See Dr. Volarich deposition, page 12. None of those objections were taken up at the hearing.
In evaluating the strength of Dr. Volarich's medical opinion, the courts have compelled the Commission to avoid set aside the uncontradicted findings from qualified experts by substituting an ALJ's own personal view of the evidence without a finding that the expert opinion evidence lacks adequate foundation or is otherwise flawed.
"[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." Elliot v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 658 (Mo.App. W.D. 2002). Accordingly, where expert medical testimony is presented, "logic and common sense," or an ALJ's personal views of what is "unnatural," cannot provide a sufficient basis to decide the causation question, at least where the ALJ fails to account for the relevant medical testimony. Cf. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994) ("The commission may not substitute an administrative law judge's opinion on the question of medical causation of a herniated disc for the uncontradicted testimony of a qualified medical expert."). Van Winkle v. Lewellens Professional Cleaning, Inc., 358 S.W.3d 889, 897, 898 (Mo.App. W.D. 2008).
Certainly, a contrary opinion from the sole vocational expert or an opinion from any of the experts that Dr. Volarich lacked adequate credentials or information to render the opinion would have been powerful evidence. However, a search of the record reveals no such evidence. Further, he proper focus of the inquiry as to the nature of the prior disability 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. See Wuebbeling, supra. For these reasons, Dr. Volarich's finding appears to be a valid finding based on the other evidence and, therefore, binding on the finder of fact.
Based on the weight of the evidence, the Second Injury Fund bears liability for permanent total disability benefits. The attorney for the claimant is entitled to an attorney fee of 25 % of this award.
Made by: $\quad / \mathrm{s} /$ EDWIN J. KOHNER
EDWIN J. KOHNER
Administrative Law Judge
Division of Workers' Compensation