| Employee: | William A. Foster |
| Employer: | Morton Buildings, Inc. |
| Insurer: | Zurich American Insurance Company |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ We have read the briefs, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the award and decision of the ALJ. We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.
The ALJ found that before employee sustained the left shoulder injury that is the subject of this claim, employee was performing a very physical job and had no physician-imposed restrictions on his work activities. Consequently, the ALJ concluded that the primary injury, considered in isolation, rendered employee permanently and totally disabled. We disagree that this particular shoulder injury singlehandedly resulted in employee's total disability.
Employee credibly testified about many limitations on his physical activities that affected the way he did his job. When employee was approximately thirty-five years old, he fractured his ankle while at work. Later, he injured his right knee while working on a muddy job site, and in 2005 or 2006 employee injured his left knee. Employee required surgeries on both knees. Employee was able to continue working despite the effects of those injuries, but he had to alter the way he worked. Employee testified that when jobs required crawling, bending, and squatting, he would try to do something else and have another crew member do that task. If there wasn't anybody to help, employee did the job but in pain.
Additionally, in 1999, employee injured his neck while at work, which necessitated a spinal fusion. In 2004, employee injured his right shoulder by slipping on ice at work, which necessitated two surgeries. Finally, in 2007, employee injured his lower back while at work. Thereafter, employee had aching and burning pain in his lower back when he was physically active. Although employee continued working after these injuries, the effects of these injuries also altered the way employee was able to work. Employee was limited in his ability to do overhead work so he had crew members do those tasks for him. The effects of the right shoulder injury limited employee's ability to extend his arms, lift, use a screwdriver, and hammer. The pain from these conditions caused employee to be sore and stiff, whether he was using manual tools (like hammers), power tools, or just driving.
[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2008, unless otherwise indicated.
Employee testified that before the primary injury, he had to lie down at work three to four times per week, to alleviate his symptoms.
Section 287.220 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) (internal citation omitted).
Employee's credible testimony is that prior to the 2008 injury, he avoided many job duties when possible, and was able to pass those duties to other crew members. Although employee had no physician-imposed restrictions before he sustained his left shoulder injury, the facts in this case show us that employee had real, self-imposed restrictions. Employee testified that he believed if he had applied for his job with employer in 2006 after the surgeries on his knees, right shoulder, and neck, but before his left shoulder injury, he would not have obtained his job. ${ }^{2}$ However, employee was able to continue working until the primary injury in 2008, which impaired his only remaining uninjured limb.
Almost all of the experts in this case opined that employee is permanently and totally disabled due to the combination of the effects of the primary injury and his pre-existing conditions. Dr. Swaim and Dr. Pazell found that employee is permanently and totally disabled due to the combination of effects from the primary injury and employee's preexisting conditions. Additionally, they both found that employee sustained a 30\% permanent partial disability in his left shoulder due to that injury alone. Dr. Pazell wrote that due to the arithmetic sum of employee's disabilities, he "[could not] conceive of anything that [employee] could do that anyone would hire him for." Mr. Swearingin, a vocational expert, found that employee is neither employable nor placeable in the open labor market due to the combination of his impairments, which were "vocationally disabling sufficient to constitute a hindrance or obstacle to employment."
The substantial and persuasive evidence in the record supports a finding of permanent total disability due to a combination of the effects of employee's 2008 work injury and his pre-existing disabilities. Therefore, it is appropriate to award employee permanent total
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[^0]: ${ }^{2}$ While we recognize that total disability is not limited to the inability to return to the same job, employee had only done this one job his entire life and had no other job skills.
disability benefits payable by the Second Injury Fund. We find that the nature and extent of employee's disability from the 2008 injury, the torn rotator cuff in his non-dominant shoulder, amounts to a 25 % permanent partial disability at the 232 week level per $\S 287.190$ payable by employer.
For these reasons, we modify the award of the ALJ. Employer is liable for \23,470.28 in permanent partial disability benefits. { }^{3}$ Beginning February 3, 2010, the date employee reached maximum medical improvement, the Second Injury Fund is liable for permanent total disability benefits at the differential rate of $\ 120.19 for 58 weeks. ${ }^{4}$ Thereafter, the Second Injury Fund is liable for permanent total disability benefits at the stipulated permanent total disability rate of $\ 524.85 per week, which shall continue for employee's lifetime or until modified by law.
This award is subject to a lien in favor of James Johns, employee's attorney, in the amount of 25 % for necessary legal services rendered.
Any past due compensation shall bear interest as provided by law.
The award and decision of Administrative Law Judge Mark Siedlik, issued August 12, 2013, is attached for reference.
Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of June 2014.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
John J. Larsen, Jr., Chairman
James G. Avery, Jr., Member
Curtis E. Chick, Jr., Member
Attest:
Secretary
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[^0]: ${ }^{3} \ 404.66 PPD rate $\times 232 weeks \times 25 \%=\ 23,470.28.
${ }^{4} \ 524.85 PTD rate $-\ 404.66 PPD rate $=\ 120.19 per week.