The Employee, David Connors, appeared in person and offered the following exhibits, and with the sole exception of Exhibit V, all were admitted into evidence without objection:
Claimant's Exhibit A - Stipulation for Compromise Settlement, Injury No. 07-135302, approved $9 / 16 / 10$
Claimant's Exhibit B - Stipulation for Compromise Settlement, Injury No. 08-120575, approved $9 / 16 / 10
Claimant's Exhibit \boldsymbol{C}$ - Transcript of the deposition of Michael J. Poppa, D.O. taken 9/27/12, with deposition exhibits 1,2 and 3
Claimant's Exhibit $\boldsymbol{D}$ - Transcript of the deposition of Allan D. Schmidt, Ph.D., taken 11/20/12, with deposition exhibits 1 and 2
Claimant's Exhibit $\boldsymbol{E} - Transcript of the deposition of Mary W. Titterington, MS, CCFC, taken 9 / 25 / 12, with deposition exhibits 1 and 2
Claimant's Exhibit \boldsymbol{F}$ - Transcript of the deposition of Claimant David Connors, taken 9/18/12
Claimant's Exhibit G - Medical records, Advanced Cardiovascular Specialists
Claimant's Exhibit $\boldsymbol{H}$ - Medical records, DiPoto Counseling Group
Claimant's Exhibit I - Medical records, Gary Go, M.D., rating report of 2/9/09
Claimant's Exhibit J - Medical records, KU MedWest Occupational Health
Claimant's Exhibit $\boldsymbol{K} - Medical records, KU MedWest Therapy
Claimant's Exhibit \boldsymbol{L} - Medical records, Zafar Mahmood, M.D.
Claimant's Exhibit \boldsymbol{M}$ - Medical records, Northland Bone \& Joint
Claimant's Exhibit $\boldsymbol{N} - Medical records, Rockhill Orthopaedics
Claimant's Exhibit \boldsymbol{O} - Medical records, Sharon Scott, M.D.
Claimant's Exhibit \boldsymbol{P} - Medical records, St. Luke's Imaging Center
Claimant's Exhibit \boldsymbol{Q} - Medical records, Surgicenter of Kansas City
Claimant's Exhibit \boldsymbol{R}$ - Medical records, Mid American Foot \& Ankle
Claimant's Exhibit $\boldsymbol{S}$ - Medical records, MidAmerica Neuroscience Institute
Claimant's Exhibit T - Medical records, Neurosurgery of Kansas City
Claimant's Exhibit $\boldsymbol{U}$ - Medical records, North Kansas City Hospital
Claimant's Exhibit V - Medical records, report of Douglas M. Rope, M.D., dated 2/23/10 (not admitted)
Claimant's Exhibit $\boldsymbol{W} - Medical records received from opposing counsel
Claimant's Exhibit \boldsymbol{X}$ - List of Claimant's current medications
The Second Injury Fund did not call any witnesses, offered no exhibits and offered no evidence other than the cross examination of the Employee.
Based on the above exhibits and Employee's testimony, this Court makes the following findings:
On December 14, 2007, while on the job in Liberty, Missouri, Employee was unhooking a trailer when he accidentally slipped on an icy surface and twisted and wrenched the knee. Dr. Go performed arthroscopic surgery on the left knee on January 29, 2008 which consisted of a partial medial meniscectomy, chondroplasty of the medial femoral condyle and chondroplasty of the patellofemoral joint and extensive synovectomy. He was released to return to work regarding the left knee on April 21, 2008. The following day, April 22, 2008, he underwent surgery to treat pre-existing right knee problems. ${ }^{1}$ He was released from treatment on the right knee on June 18, 2008 and then returned to his job at FedEx Freight on a full duty basis. He continued to work until he sustained another work-related injury to the left knee on July 15, 2008.
Employee settled a workers' compensation claim for the December 14, 2007 injury at FedEx Freight, Inc. for 15 percent permanent partial disability of the left knee.
Although his work status was technically "full duty" between June 18, 2013 and July 15, 2008, Employee's actual job duties were not as they had been before the injury in December, 2007. Due to the condition of his knees, he found it difficult to climb up and into a truck or the back of a trailer. He self-accommodated by crawling into the trailer and then rolling in. And, fortunately for Employee, his employer was tolerant of Employee's physical problems and worked with him as much as possible to try to help him. For example, he was provided a smaller truck with smaller steps which made it easier for Employee to get into the truck. Additionally, Employee sought and received the assistance of co-workers when he was required to crawl under trailers for pre-trip inspections and when he had to hook and unhook trailers.
Dr. Michael Poppa examined Employee at the behest of his attorney. Regarding preexisting disabilities, he opined that prior to July 15, 2008, Employee had 20 percent permanent partial disability of the right lower extremity at the 160 week level, 15 percent permanent partial disability of the body as a whole referable to the cervical spine and 12.5 percent permanent partial disability of the body as a whole referable to the lumbar spine. The pre-existing right knee problems were progressive in nature. Regarding the pre-existing neck disability, Employee was diagnosed with cervical stenosis and three bulging disks and was once treated with a nerve block. And, Employee had a pre-existing diagnosis of lumbar stenosis. Dr. Poppa opined that there was 15 percent enhancement of disability due to the combination of the prior disabilities with each other and with the disability from the primary claim of injury in July, 2008.
Dr. Allan Schmidt, a psychologist, was retained by Employee to perform an independent psychological evaluation. Dr. Schmidt opined that prior to July 15, 2008, Employee had 15 percent psychological disability. Employee's pre-existing psychological problems included depression, patterns of obsessive behaviors regarding food, exercise, his weight, golf, jigsaw puzzles, fishing, drawing and shopping and anger management problems at work.
The first issue to be determined by this Court is whether the Employee's prior disabilities were a hindrance or obstacle to his ability to maintain employment or to be reemployed should he have become unemployed. In that regard, the Employee testified that due to the pre-existing
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[^0]: ${ }^{1}$ Employee underwent arthroscopic right knee surgery which consisted of extensive synovectomy, partial medial and lateral meniscectomies and chondroplasty of the medial femoral condyle and patellofemoral joint.
disabilities of the right knee, cervical spine and lumbar spine, he had difficulty lifting and carrying heavy weights and his employer allowed others to help him when he was required to unload heavy freight from a trailer. For example, if a particular item could not be lifted and moved with a forklift, the employer would send someone out to help Employee unload the heavy freight. The movement of the seats in the trucks he had to drive caused headaches with pain running down into the neck area and a burning sensation in the shoulders, and this slowed him down at work. He self-accommodated by taking frequent breaks - he would have to stop driving and get out of the truck in order to manage the headaches and pain in the neck and shoulders.
Moreover, Employee's pre-existing psychological problems presented issues at work prior to December 14, 2007. He reported a history of anger management problems beginning in 2005. The Claimant had numerous confrontations with co-workers and managers which usually turned into shouting matches. As a result, he was given verbal warnings and was written up for aggressive behavior in the workplace.
In reviewing the medical records, the reports from Dr. Poppa and Dr. Schmidt and Employee's testimony, this Court finds that Employee's prior disabilities did, in fact, cause a hindrance or obstacle to employment or to Employee's ability to obtain reemployment if he had become unemployed.
The next issue to be determined in this matter is whether the Second Injury Fund is liable to the Employee for any disability compensation. In order to establish Second Injury Fund liability for permanent partial disability benefits, the Employee must prove:
(1) That he has sustained a permanent disability resulting from a compensable workrelated injury. See Section 287.210.1 RSMo (1964). This Court notes and determines that Employee has a compensable work-related injury resulting in a 15 percent permanent partial disability to the left lower extremity at the 160 week level which equates to 24 weeks of disability.
(2) That the Employee has permanent disability predating the compensable workrelated injury which is of such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the Employee had become unemployed. §287.220.1 RSMo (1994); Messex v. Sachs Electric, Co., 989 SW 2d (Mo. App. 1997); Garibay v. Treasurer, 964 SW 2d 474 (Mo. App. 1998); Rose v. Treasurer, 899 SW 2d 563 (Mo. App. 1995); Leutzinger v. Treasurer, 837 SW 2d 615 (Mo. App. 1995). As previously determined by this Court, the evidence herein does show that Employee suffered preexisting disabilities which were a hindrance or obstacle to employment or to obtain reemployment if the employee should have become unemployed. This prior disability is rated at 20 percent permanent partial disability to the right lower extremity at the 160 week level which equates to 32 weeks of disability, 15 percent of the body as a whole, referable to the cervical spine, which equates to 60 weeks of disability, 12.5 percent permanent partial disability to the body as a whole, referable to the lumbar spine, which equates to 50 weeks of disability, and 15 percent of the body as a whole referable to psychological disability. Applying an augmentation factor of 2.5 % to the 2007 left knee injury in combination with the pre-existing right knee disability is appropriate given the bilateral nature of the injuries. Therefore, there is a total of 5.65 weeks of pre-existing disability.
(3) That the combined effects of the disability resulting from the work-related injury and the disability that is attributable to any condition existing at the time that the last injury was sustained results in an enhanced permanent partial disability greater than the sum of the individual parts. Boring v. Treasurer, 947 SW 2d 483 (Mo. App. 1997); Reiner v. Treasurer, 837 SW 2d 363 (Mo. App. 1992); Frazier v. Treasurer, 879 SW 2d 152 (Mo. App. 1994). Dr. Poppa opined that Employee did sustain a synergistic effect due to the combination of his primary injury and his pre-existing disabilities, assigning a 15 percent enhancement factor to the primary injury and all pre-existing disabilities. Further, Employee's testimony that the combination of his primary injury and preexisting disabilities rendered it difficult for him to lift, carry, push, pull, squat, stoop, kneel, crawl and perform the other physical requirements of the job is consistent with a 15 percent enhancement factor. Wherefore, this Court finds that the Second Injury Fund owes permanent partial disability to the Employee for a combination of his primary injury and his preexisting disabilities. The primary injury resulted in a 15 percent permanent partial disability to the left lower extremity at the 160 week level equating to 24 weeks, and his prior disabilities resulted in 20 percent permanent partial disability to the right lower extremity at the 160 week level equating to 32 weeks, 15 percent of the body as a whole referable to the cervical spine which equates to 60 weeks, 12.5 percent permanent partial disability of the body as a whole which equates to 50 weeks and 15 percent psychological disability which equates to 60 weeks. The enhancement factor is 2.5 %. After applying the enhancement factors as stated, the combined weeks total 5.65 , and at the weekly compensation rate of $\ 389.04 the Second Injury Fund owes to Employee $\ 2,198.08.
Finally, this Court awards to Employee's attorney, Christopher Smith, a fee of 25 percent of all benefits awarded herein.
Any past-due compensation shall bear interest as provided by law.
Made by:
Mark S. Siedlik
Administrative Law Judge
Division of Workers' Compensation