Kevin Phillips v. M & S Painting, Inc.

Instead, the record provides evidence supporting Dr. Liss's conclusion. Employee credibly testified (and we so find) that he did not finish high school and never obtained a GED; that he has a very erratic work history; that all of his prior jobs involved physical abilities such as lifting, bending, stooping, and climbing; that he's never had a desk job or a job involving a computer; that his work injuries have left him with pain and limited use of his dominant right upper extremity; and that he doesn't believe he would be able to go back to his prior jobs. Employee's testimony is fully supported by the medical record and expert medical opinions. Employee's testimony suggests that he was marginally employable prior to his last injury, and that it is doubtful that any employer in the ordinary course of business would hire him now.

Section 287.190.6(2) RSMo states that "[p]ermanent partial disability or permanent total disability shall be demonstrated and certified by a physician," but does not require vocational expert testimony to establish permanent total disability. We acknowledge that vocational expert testimony can be helpful in these cases, but especially when we apply the strict construction of Chapter 287 mandated by § 287.800 RSMo, we cannot hold that the absence of a vocational expert opinion is fatal to this employee's claim for permanent total disability benefits.

We believe the administrative law judge raised valid concerns regarding Dr. Liss's qualifications, as a psychiatrist, to assess employee's physical disabilities and overall ability to compete in the labor market. We additionally take note of Dr. Liss's failure, in his report or in his testimony, to articulate the bases for his ultimate conclusions. In our final analysis, however, these weaknesses go to the weight, rather than the credibility, of Dr. Liss's opinions. We note that, despite her finding that Dr. Liss's opinions were not credible, the administrative law judge appears to have partially relied on them in finding a synergistic combination to exist between employee's preexisting psychiatric condition and his physical injuries.

In sum, although we are of the opinion that Dr. Liss's testimony on the topic of permanent total disability is not entitled to great weight, absent some contradictory evidence, we are not persuaded that it is entitled to no weight. We find that employee has met his burden of proof with respect to the issue of permanent total disability. We adopt the opinion from Dr. Liss that employee is permanently and totally disabled owing to a combination of his preexisting conditions and the effects of the work injury.

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, the employee must show that he 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).

We have adopted the administrative law judge's findings that, at the time he sustained the work injury, employee suffered from preexisting permanent partially disabling conditions referable to his psychiatric conditions, his lumbar spine, and his left arm. We are convinced each of these conditions was serious enough to constitute hindrances or obstacles to employment. This is because we are convinced employee's preexisting conditions had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of these conditions. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

Having found that employee suffered from preexisting permanent partially disabling conditions that amounted to hindrances or obstacles to employment, we turn to the question whether the Second Injury Fund is liable for permanent total disability benefits. In order to prove his entitlement to such an award, employee must establish that: (1) he suffered a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with 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). Section 287.220.1 requires us to first determine the compensation liability of the employer for the last injury, considered alone. If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. "Pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

We have adopted the administrative law judge's finding that employee sustained 112.22 weeks of permanent partial disability as a result of the primary injury, and credited the expert opinion from Dr. Liss that employee's permanent total disability results from a combination of his preexisting disabling conditions with the effects of the primary injury. We find that employee is not permanently and totally disabled as a result of the last injury considered in isolation.

We conclude employee is permanently and totally disabled owing to a combination of his preexisting disabling conditions in combination with the effects of the work injury. The Second Injury Fund is liable for permanent total, rather than permanent partial, disability benefits.

The parties stipulated that employee reached maximum medical improvement on December 6, 2010. Because the rates for permanent partial and permanent total disability benefits are equal in this case, the Second Injury Fund is liable for permanent

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the administrative law judge's award assessing permanent partial disability benefits against the Second Injury Fund was correct and should be affirmed without modification.

I disagree with the majority's choice to disturb the administrative law judge's credibility findings as to the issue of permanent total disability. In its decision, the majority acknowledges the multiple deficiencies in the opinions of employee's rating psychiatrist, Dr. Liss, so there is no need to repeat them here. But the majority goes on to overlook these deficiencies because, while they may affect the "weight" to be afforded Dr. Liss's conclusions, they do not affect the "credibility" of those conclusions. I fail to appreciate the difference between the weight and the credibility of Dr. Liss's opinions.

The primary problem I perceive with employee's case for permanent total disability is that Dr. Liss opined employee's preexisting psychiatric disability combines with the physical effects of the work injury to render employee permanently and totally disabled, but at the same time failed to identify what physical disabilities he believes employee sustained as a result of