Claimant testified live. His testimony was credible.
Claimant was born on June 3, 1957. Claimant worked for City of Columbia (Employer) for over 25 years prior to his retirement in October 2015.
On April 8, 2010, Claimant was removing a transmission from a truck. As Claimant was in the process of breaking a bolt loose, he felt a pop in his right shoulder, immediately followed by a stinging sensation and pain. Claimant was treated conservatively with oral medications, physical therapy and injections. Claimant proceeded to surgery on March 30, 2011; Dr. Matthew Smith performed an arthroscopic repair of the subscapularis and supraspinatus, a biceps tenotomy, subacromial decompression, release of coracromial ligament, and partial acromioplasty. Claimant settled this case with Employer for 25\% permanent partial disability of the right shoulder on August 21, 2014.
In 2004 Claimant was diagnosed with coronary artery disease and had a stent placed. Claimant has been on medication for his heart since 2004. Claimant testified that his heart condition was doing well before 2010 and that he did a lot of walking. The medical records indicate that, before the 4-8-2010 accident, Claimant's heart disease was stable, and that Claimant was denying chest pain. Claimant has complained of shortness of breath, but only within the last 18 months prior to the hearing. Dr. David Volarich testified that Claimant had a preexisting 20 % permanent partial disability of the body as a whole due to the heart condition.
Claimant injured his left shoulder at work in March 2005. He was diagnosed with impingement syndrome and surgery was performed. Claimant settled that claim with Employer for 10 % permanent partial disability of the left shoulder. Dr. David Volarich testified that Claimant had a preexisting 15 % permanent partial disability of the left shoulder due to this condition.
Claimant is also alleging a preexisting permanent partial disability of the low back. Claimant advised Dr. Volarich that he had injections in his low back in 2004 and 2005. In 2007, Claimant's primary care physician noted a history of herniated lumbar disc. In March 2012, Claimant saw an orthopedic surgeon for his low back and radiating pain into his right lower extremity. A lumbar MRI performed in March 2012 revealed a right-sided L4-5 disc herniation. Surgery was performed on April 25, 2012. Dr. David Volarich testified that Claimant had a preexisting 20 % permanent partial disability of the body as a whole due to the low back condition.
Regarding the potential liability of the Second Injury Fund for the combination of the preexisting disabilities due to the heart, left shoulder and low back, and the right shoulder disability occasioned by April 8, 2010 work accident, Dr. Volarich stated:
The combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added.
I find that Claimant's preexisting heart condition, which required surgery, resulted in a disability of 12.5 % of the body as a whole, and, as such, meets the threshold for Second Injury Fund liability for permanent partial disability benefits. While there is minimal evidence that the heart condition was a hindrance or obstacle to Claimant's employment with Employer between 2004 and April 8, 2010, I find that the heart condition constituted a hindrance or obstacle to reemployment in the event Claimant had become unemployed.
In Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. E.D. 1995), the court stated:
The Second Injury Fund statute recognizes that employers have a financial incentive to discriminate against individuals who have a condition which renders them more susceptible to a greater degree of disability compared to workers who have no such condition. That incentive to discriminate is precisely the same whether the condition has previously caused the employee to miss work or not. Many occupations can be ably performed by workers with one eye or one arm. In such cases, the condition may not cause the employee to miss any work or otherwise diminish his earning power. The condition becomes disabling only when combined with a further injury. It is the potential for those more serious combinations of injury and previous condition that gives rise to the employer's incentive to discriminate in the absence of a Second Injury Fund. Thus, a requirement that the condition be shown to have caused the employee to have missed work or suffer diminished earnings prior to the injury which combines with the condition to render the employee disabled is inconsistent with the purpose of the Fund. In many instances, the effect would be to deny the protection of the Fund to those most in need of it. If the Second Injury Fund is to fulfill its acknowledged purpose, the proper focus of the inquiry as to the nature of the prior disability 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.
That is certainly the case here. If Claimant would have had to obtain new employment between 2004 and April 8, 2010, his heart condition would clearly have been a hindrance or obstacle to reemployment.
I find that Claimant's low back condition cannot be considered in determining the liability of the Second Injury Fund, as his low back condition had not reached maximum medical improvement until after the April 8, 2010 injury, i.e., after Claimant had recovered from the April 25, 2012 surgery. Hoven v. Treasurer, 414 S.W. 3d 676 (Mo. App. E.D. 2013); Miller v. Treasurer, 425 S.W.3d 218 (Mo. App. E.D. 2014).
I find that Claimant's preexisting left shoulder condition constituted a preexisting permanent partial disability of 10 % of the shoulder. While this preexisting disability (considered alone) does not meet the statutory threshold, it must also be considered in determining the liability of the Second Injury Fund.
This Court finds there must be a single preexisting permanent partial disability that meets the thresholds to trigger the fund's liability and there is no threshold requirement for the last injury. Additionally, all preexisting injuries must be considered in calculating the amount of compensation for which the fund is liable. (Italics not in original.) Treasurer v. Witte, 414 S.W. 3d 455, 467 (Mo. 2013).