| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Shirley (Bowen) Smith |
| Employer: | Dannie Gilder, Inc. (Settled) |
| Insurer: | Commerce & Industry Insurance Company (Settled) |
| 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. We have reviewed the evidence, read the parties’ briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modification set forth below. |
| Discussion Permanent total disabilityThe administrative law judge considered the issue whether the Second Injury Fund is liable for permanent total disability benefits. That inquiry required the administrative law judge to apply § 287.220.1 RSMo and determine (1) whether employee suffered a permanent partial disability as a result of the last compensable injury, and (2) whether that disability combined with employee’s prior permanent partial disability to result in total and permanent disability.The administrative law judge found employee’s expert opinion evidence from Dr. David Volarich and Susan Shea to be lacking persuasive force, and found that employee’s disability from the last injury does not combine with her prior permanent partially disabling conditions to result in total and permanent disability. The administrative law judge then went a step further, however, and found that employee is permanently and totally disabled due to “the subsequent substantial deterioration of her physical and psychiatric condition after [the primary injury] due to the diagnosis of and treatment for breast cancer.” Award, page 20. In rendering this affirmative factual finding, the administrative law judge expressly relied, in part, upon his own lay opinion that employee’s breast cancer caused her to suffer the medical condition of depression.We defer to the administrative law judge’s assessment of the weight to be given to the expert opinions; for this reason we will not disturb his conclusion that the Second Injury Fund is not liable for permanent total disability benefits. But we must disclaim his additional findings regarding alternative reasons why employee may be unable to compete in the |
Injury No.: 06-134271
Employee: Shirley (Bowen) Smith
- 2 -
open labor market.¹ We simply find that employee's permanent partial disability resulting
from the last injury does not combine with employee's prior disability to result in total and
permanent disability, and conclude therefore that the Second Injury Fund is not liable for
permanent total disability benefits.
Enhanced permanent partial disability
The parties agree, in their briefs, that if the Commission approves the administrative law
judge's award of permanent partial disability benefits against the Second Injury Fund, the
award must be modified in order to conform to the decision in *Treasurer of Missouri-
Custodian of the Second Injury Fund v. Witte*, 414 S.W.3d 455 (Mo. 2013), wherein the
Supreme Court of Missouri held that, to trigger Second Injury Fund liability for permanent
partial disability benefits, only one of an employee's preexisting permanent partially disabling
conditions must meet the applicable threshold under § 287.220.1, and that thereafter all of an
employee's permanent partially disabling conditions (including those below threshold) are to
be included when calculating Second Injury Fund liability. *Id.* at 466-67.
Here, the administrative law judge left out of his calculations employee's permanent partial
disability resulting from the primary injury referable to the left elbow, as well as employee's
preexisting permanent partial disability referable to the left elbow. We defer to (and hereby
adopt) the administrative law judge's ratings as to these and employee's other permanent
partially disabling conditions, as well as his finding that a 20% load factor is appropriate to
account for the synergistic combination of these conditions.
Accordingly, we recalculate Second Injury Fund liability for permanent partial disability
benefits as follows: 47.25 weeks (27% permanent partial disability of the right wrist/hand at
the 175-week level) + 10.5 weeks (5% of the left elbow at the 210-week level) + 21 weeks
(10% of the left elbow) + 160 weeks (40% of the body as a whole referable to the spine) =
238.75 x the 20% load factor = 47.75 weeks of enhanced permanent partial disability. At
the stipulated permanent partial disability rate of 376.55, the Second Injury Fund is liable
for 17,980.26 in permanent partial disability benefits.
Conclusion
We modify the award of the administrative law judge as to the issue of Second Injury
Fund liability. Employee is entitled to, and the Second Injury Fund is hereby ordered to
pay, $17,980.26 in permanent partial disability benefits.
The award and decision of Administrative Law Judge Lawrence C. Kasten, issued
November 13, 2013, is attached hereto and incorporated herein to the extent not
inconsistent with this decision and award.
¹ See, e.g., *Abt v. Miss. Lime Co.*, 388 S.W.3d 571 (Mo. App. 2012), where the Commission affirmed and adopted an
award rejecting expert opinion evidence regarding the cause of an employee's permanent total disability in favor of a
theory that the employee was permanently and totally disabled owing to subsequent deterioration. In reversing the
Commission, the *Abt* court noted that "[r]ather than choosing one of the medical opinions, the Commission made a
finding that is not consistent with any medical opinion in the record." *Id.* at 581.
The Commission approves and affirms the administrative law judge's allowance of an 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 $26^{\text {th }}$ day of August 2014.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
John J. Larsen, Jr., Chairman
James G. Avery, Jr., Member
Curtis E. Chick, Jr., Member
Attest:
Secretary
| Employee: | Shirley Bowen Smith | Injury No. 06- |
| 134271 |
| Dependents: | N/A |
| Employer: | Dannie Gilder, Inc. (settled) |
| Additional Party: | Second Injury Fund |
| Insurer: | Commerce & Industry Insurance Company (settled) |
| Appearances: | Joe Rice, attorney for the employee. <br> Jon Lintner, attorney for the Second Injury Fund. |
| Hearing Date: | August 7, 2013 | Checked by: LCK/rm |