Susan Green v. ZLB Plasma Services

Enployee: Susan Green

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For the reasons stated below, we modify the award of the administrative law judge referable to the issue of Second Injury Fund liability.

Section 287.220 RSMo ${ }^{1}$ 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 she 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 deem reasonable and hereby adopt the administrative law judge's finding that employee suffered from a preexisting permanent partially disabling condition referable to her low back. We additionally find persuasive the uncontested opinion from Dr. Brent Koprivica that employee suffered preexisting permanent partial disability affecting her bilateral upper extremities referable to carpal tunnel syndrome as of the date of the primary injury. ${ }^{2}$ Finally, we find persuasive the unrebutted psychological opinion from Dr. Allan Schmidt that employee suffered from a preexisting personality disorder; we deem employee's history of requiring psychiatric medications sufficient to support a finding that she suffered preexisting permanent partial psychiatric disability referable to this condition.

After careful consideration, we are convinced that each of these conditions were 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 preexisting conditions. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

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[^0]: ${ }^{1}$ We note that it appears from the administrative law judge's award that he applied the 2013 amendments to § 287.220 RSMo to this claim alleging a primary injury of September 9, 2007. Those amendments, by their express terms, apply prospectively to claims alleging primary injuries by accident occurring after January 1, 2014. Consequently, we have applied the version of $\S 287.220 RSMo as it existed on the date of employee's work injury.

{ }^{2}$ The Second Injury Fund makes much of Dr. Koprivica's concession that he could not say with "absolute certainty" that employee's carpal tunnel syndrome predated 2007, but the applicable standard is not "absolute certainty" but rather "a reasonable degree of medical certainty." See § 287.190.6(2) RSMo. Especially in the absence of any contrary expert medical opinion evidence, we find Dr. Koprivica's testimony sufficient to meet this burden.

Fund liability for PTD under Section 287.220.1 occurs when [the employee] establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For [the employee] to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD.

Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014).

Section 287.220.1 requires us to first determine the compensation liability of the employer for the last injury, considered alone. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003). 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. Id.

None of the experts to address the issue testified that employee was permanently and totally disabled as a result of the primary injury alone. We deem reasonable and hereby adopt the administrative law judge's finding that, as a result of the accident of September 9, 2007, employee sustained a 26\% permanent partial disability of the body as a whole. We conclude that employee is not permanently and totally disabled as a result of the last injury considered in isolation.

We turn now to the question whether the evidence supports a finding that employee is permanently and totally disabled as a result of the effects of the last injury combined with her preexisting conditions of ill-being. The administrative law judge quoted testimony from employee's vocational expert, Mary Titterington, that employee most likely would have been unemployable on the open labor market between her September 9, 2007, work injury and her last day of work for employer in April 2010. The administrative law judge did not indicate that he disbelieved this essentially uncontradicted vocational opinion from Ms. Titterington, which is supportive of a finding of Second Injury Fund liability for permanent total disability benefits. Yet, without explanation, he rejected that opinion in rendering his final award. ${ }^{3}$

The Second Injury Fund suggests the administrative law judge's choice to disregard the testimony from Ms. Titterington is supported because employee remained employed by employer for about a year and a half following the work injury. But this argument is circular in that it ignores the very substance and import of Ms. Titterington's testimony. Notably, there is no dispute as to the administrative law judge's finding that employee was permanently and totally disabled as of the date of the March 25, 2014, hearing in this matter. Logically then, the Second Injury Fund appears to take the position that employee has been rendered permanently and totally disabled owing to a worsening of her condition not shown to be causally related to the accident of September 2007. But the Missouri courts have suggested medical expert testimony is necessary to support a finding that an

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[^0]: ${ }^{3}$ The courts have repeatedly cautioned that the fact-finder in a workers' compensation matter must provide specific reasoning for rejecting uncontradicted testimony. See Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179-80 (Mo. App. 2004), discussing the so-called Corp versus Alexander rules.

employee's permanent and total disability is the product of post-accident worsening. See, e.g., Abt v. Miss. Lime Co., 388 S.W.3d 571, 581 (Mo. App. 2012), holding that because "no medical expert concluded that [the employee] was permanently and totally disabled due solely to subsequent deterioration, the Commission's finding [that the employee was permanently and totally disabled for that reason] is not supported by substantial and competent evidence." Here, as in Abt, there is no such testimony on the record.

Employee's work for employer after reaching maximum medical improvement from the effects of the work injury is certainly a relevant factor, but is by no means dispositive, because the relevant test is whether employee was capable of competing for work in the open labor market, not whether she was able to return to her former employment. See Brashers v. Treasurer of the State as Custodian of the Second Injury Fund, 442 S.W.3d 152, 162-63 (Mo. App. 2014). Employee was absent for sustained periods of time after returning to work for employer (including two different twelve week periods) and employer disciplined her for poor attendance. ${ }^{4}$ The record further reveals that employer moved employee to various positions in an effort to find one that would be compatible with employee's physical limitations, but employee was ultimately unable to tolerate even very limited work duties.

After careful consideration, we discern no basis for rejecting the uncontradicted testimony from Ms. Titterington regarding employee's ability to compete in the open labor market between September 2007 and April 2010. We credit her testimony on that point, as well as Dr. Koprivica's opinion that employee is permanently and totally disabled owing to a combination of her preexisting disabling conditions in combination with the effects of the September 2007 work injury. We so find.

We conclude, therefore, that the Second Injury Fund is liable for permanent total disability benefits.

We modify the award of the administrative law judge as to the issue of Second Injury Fund liability.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning on the date of maximum medical improvement, November 18, 2008, at the differential rate of $\ 38.29 for 104 weeks, and thereafter at t