James Wickam v. Republic Services

Employee: James Wickam

Injury No: 00-177324

Dependents: N/A

Employer: Republic Services (Settled)

Insurer: Liberty Insurance Co. (Settled)

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Hearing Date: February 4, 2015

Briefs Filed: February 25, 2015

Checked By: ESM/lh

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: 11/06/2000
5. State location where accident occurred or occupational disease was contracted: Jackson County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Wickam

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Repetitive injury to both upper extremities from his employment activities using his hands operating heavy equipment and truck driving.
2. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Upper extremities
2. Nature and extent of any permanent disability: 18 % permanent partial disability to the body as a whole as previously settled with the employer
3. Compensation paid to-date for temporary disability: 0
4. Value necessary medical aid paid to date by employer/insurer? $\ 10,067.83
5. Value necessary medical aid not furnished by employer/insurer? Unknown
6. Employee's average weekly wages: $\ 800.00
7. Weekly compensation rate: $\$ 533.33 / \ 314.26
8. Method wages computation: Stipulation
9. Amount of compensation payable: 18 % permanent partial disability to the body as a whole as previously settled with the employer.
10. Second Injury Fund liability: None
11. Future requirements awarded: N/A

Employee: James Wickam

Injury No: 00-177324

Dependents: N/A

Employer: Republic Services (Settled)

Insurer: Liberty Insurance Co. (Settled)

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Hearing Date: February 4, 2015

Briefs Filed: February 25, 2015

Checked By: ESM/lh

On February 4, 2015, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Employee, James Wickam, appeared in person and with counsel, Stephen Mayer. The Second Injury Fund appeared through Assistant Attorney General, David Zugelter. There was no appearance on behalf of the Employer and Insurer as the claim between the Employer and the Employee has previously been settled.

The parties stipulated to the following:

(1) That the Employer, Republic Services, was an employer operating and subject to the provisions of the Missouri Compensation Law on November 6, 2000 and was fully insured by Liberty Mutual Insurance, Co.;

(2) That James Wickam was its Employee and working subject to the law in Kansas City, Jackson County, Missouri;

(3) That Employee sustained an accident or occupational disease arising out of and in the course and scope of his employment on November 6, 2000;

(4) That Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;

(5) That Employee's average weekly wage was $\ 800.00 resulting in a compensation rate of $\ 533.33 for temporary total and permanent total disability and $\ 314.26 for permanent partial disability compensation;

(6) That the Employer has paid temporary total disability compensation in the amount of zero and medical care costs of $\ 10,067.83;

(7) That the Employer and the Employee settled the primary claim for 18 % permanent partial disability to the body as a whole.

The issues to be resolved by this hearing are as follows:

(1) Whether the Employee suffered any disability from the last accident and if so the nature and extent of such disability, and

(2) Whether the Second Injury Fund is liable to Employee for any disability compensation.

The Employee, James Wickam, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

A - Dr. Koprivica Independent Medical Exam report dated 11/1/01

B - Occupational Health Services

C - Health South Rehabilitation

D - Dr. Thomas McCormack

E - Dr. C. Daniel Smith

F - Dr. C. Craig Satterlee

G - Trinity Lutheran - Dr. Ahmed EMG

H - Dr. Satterlee Operative Report

I - North Kansas City Hospital

J - Health South Rehabilitation

K - Health South Rehabilitation - FCE report

L - Dr. Koprivica Independent Medical Exam report dated 10/12/04

M - Northland Bone \& Joint

N - North Kansas City Hospital

O - Health South FCE report

P - Marry Titterington, vocational consultant report dated 9/8/07

Q - Dr. Koprivica Addendum dated 4/16/09

R - Dr. Koprivica Addendum dated 10/25/09

S - Dr. Raghavendra Adiga

T - Dr. Sidney Christiansen

U - Heartland Health

V - KU Medical Center

W - Mid America Cardiology

X - Dr. Koprivica 4/15/10 deposition with exhibits

Y - Mary Titterington 7/27/10 deposition with exhibits

Z - Dr. Allan Schmidt Psych Evaluation report dated 3/30/11

AA - Dr. Koprivica Addendum dated 12/26/11

BB - Dr. Koprivica 10/18/12 deposition with exhibits

CC - Dr. Schmidt 3/7/13 deposition with exhibits

The Second Injury Fund did not call any witnesses and offered the following exhibits which were admitted into evidence without objection:

1 - Claim for Compensation

2 - Stipulation

Claimant (James Wickam) is a 72 year old male. He completed high school in 1960 with above average grades. Through his life he has had a variety of jobs such as butcher, police officer, tractor trailer operator, and heavy equipment operator.

Mr. Wickam reported several injuries and problems prior to his November 6, 2000, occupational disease. In 1961, he suffered a right hand injury which led to the amputation of his distal right index and middle finger. On August 17, 1999, he sustained an injury to his right shoulder, for which he underwent a right shoulder replacement on December 6, 2000. Claimant also testified regarding some personality traits which have hindered him during his lifetime.

Mr. Wickam's November 6, 2000, occupational disease symptoms initially appeared following the 1999 right shoulder injury. Following this shoulder injury, Mr. Wickam complained of numbness in his right hand, leading his physician, Dr. Ahmed, to perform electrodiagnostic studies on his right upper extremity on November 6, 2000. This test revealed moderate to severe carpal tunnel syndrome on the right along with mild ulnar neuropathy at the wrist.

Following this diagnosis, Mr. Wickam filed his claim for compensation with the Division of Workers' Compensation alleging these symptoms were work related and indicated an injury or occupational disease date of November 6, 2000. Claimant eventually underwent a right carpal tunnel release on September 12, 2003, and a left carpal tunnel release on December 22, 2003. Mr. Wickam subsequently filed an amended claim for compensation for the 2000 occupational disease in November 2004, alleging an injury date of April 18, 2003, the approximate last day he worked. He also named an additional employer List and Clark for whom he was working on April 18, 2003. He had not worked for Republic Services since 2000.

Subsequent to the November 6, 2000, occupational disease, Claimant underwent significant treatment to both knees, his shoulder and for sleep apnea. He has undergone arthroscopies to both knees for debridement purposes and has received a recommendation for a

total knee arthroplasty to the left knee. For his sleep apnea condition he underwent a tracheotomy on June 3, 2003. He has undergone two unsuccessful attempts at tracheal debridement surgically since. He has also undergone a shoulder replacement.

Employee testified that he lost the tips of his fingers on his right hand in 1961. He stated it was just the tips and over the last 50 years he has learned to work around them. He was initially diagnosed in April 1999 after a sleep test, with sleep apnea. He stated that he had hurt his shoulder and was off work and gained a great deal of weight. This weight gained was the catalyst to his sleep apnea. However it is noted that his shoulder injury was in August of 1999 some 4 months after the initial sleep test. He also stated that he did not feel his sleep apnea was "that big enough of a deal" to worry about. He stated it was bothering him in 2003 and that he would sleep in his truck prior to starting jobs, he would also sleep in the cab of his machine during breaks as well as nap on the way home if necessary. However there is no testimony about how it affected him prior to his 2000 injury other than the fact there was a sleep test done which was never followed up with any treatment or care. Finally Employee also testified that due to his knee problems he would use a milk crate to climb into his machines. However again there is no timeline or dates to show whether this was before or after his 2000 injury.

Claimant retained several medical and vocational experts to evaluate his claim. Dr. Koprivica, retained by Mr. Wickam, issued five reports, although he evaluated Mr. Wickam on two occasions: November 1, 2001, and October 12, 2004. In his November 1, 2001, report, Dr. Koprivica diagnosed Claimant with bilateral carpal tunnel syndrome and opined his employment as a heavy equipment operator was the substantial factor in the development of his symptoms. He recommended further treatment, including surgical decompression, to treat the bilateral carpal tunnel syndrome. He also recommended filing a separate injury claim for the diagnosis.

Dr. Koprivica made no mention of sleep apnea or knee complaints in his 2001 report. It is not until the 2004 report when he notes these complaints and provides ratings for these conditions. He further opined in his 2004 report that Mr. Wickam is permanently and totally disabled from the primary occupational disease combined with his pre-existing disability. He deemed the sleep apnea and bilateral knee problems and his right shoulder replacement as preexisting conditions. Dr. Koprivica did not provide a rating or opine Claimant's 1961 injury to his fingers to be a pre-existing hindrance or obstacle to employment.

On April 13, 2011, Dr. Allan Schmidt, a psychologist, evaluated Claimant at his request. The evaluation, completed over ten years after the primary injury, led to the diagnoses of attention deficit hyperactivity disorder and a personality disorder. At the time of the evaluation, Mr. Wickam denied any prior history of previous mental health treatment or use of psychotropic medications. After interviewing Employee and testing his Dr. Schmidt noted in his report that the degree of disability of Employee's psychological impairment in his activities of daily living prior to his accident was no impairment but mild after his accident, his social functioning was a mild impairment pre and post accident, his concentration was a moderate impairment before and after his accident and his adaptation was mild impairment pre and post accident. Dr. Schmidt rated this diagnoses, which he deemed to be pre-existing the 2003 occupational disease, as a 20\% body as a whole psychological impairment.

Finally, Mr. Wickam hired Mary Titterington to perform a vocational evaluation, which was completed on August 29, 2007. She too opined Claimant to be permanently and totally disabled in light of his primary occupational disease when combined with his pre-existing disabilities. Ms. Titterington included Claimant's sleep apnea, right shoulder replacement and knee issues in her employment analysis and final conclusions. She also included low back impairments in her analysis, which no physician or rating doctor opined to be a hindrance or obstacle to employment.

A dispositive issue that must first be addressed in this case is whether Mr. Wickam's bilateral knee complaints and treatment, shoulder replacement, ADHD, as well as his sleep apnea and its resulting treatment and limitations, are considered pre-existing disabilities or subsequent deterioration. Mr. Wickam is claiming he is permanently and totally disabled under the Missouri Workers' Compensation Law and further that his permanent and total disability results from the combination of the disability resulting from the 2000 workplace occupational disease combining with permanent disability from prior injuries, including the bilateral knees, right shoulder and sleep apnea. Section 287.020.7 RSMO. 2000 defines total disability as an "inability to return to any employment and not merely...inability to return to the employment in which the employee was engaged at the time of the accident."

In order for there to be Fund liability for permanent partial or permanent total disability benefits, an employee must have:

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 . . .

§287.220.1 RSMo. ${ }^{1}$

When an employee has a qualifying preexisting disability and receives a subsequent compensable work injury such that the combination results in permanent total disability, the Fund is liable for the employee's permanent total disability benefits. § 287.220.1 RSMo; Brown v. Treasurer, 795 S.W.2d 479, 482 (Mo. App. E.D. 1990).

When the Commission analyzes a preexisting disability for Fund purposes, it looks to see whether measurable disability existed "at the time the work injury [was] sustained." Portwood v. Treasurer, 219 S.W.3d 289, 292 (Mo. App. W.D. 2007) (internal citation omitted). That is, the Commission assesses preexisting disability at the time of the compensable work injury. Gassen v. Lienbengood, 134 S.W.3d 75, 80 (Mo. App. W.D. 2004). "The Second Injury Fund is not responsible for progression of preexisting conditions or new conditions that develop after and unrelated to the work injury." Lammert v. Vess Beverages, Inc., 968 S.W.2d 720, 725 (Mo. App. E.D. 1998), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220

[^0]

[^0]: ${ }^{1}$ All references to RSMo are to RSMo 2000 unless otherwise noted.

(Mo. 2003). Put more simply, the Fund is not responsible for subsequent deterioration. Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 803-04 (Mo. App. W.D. 2011).

Mr. Wickam argues the proper date of injury, or occupational disease for the purposes of this claim, is April 18, 2003. Such an argument would allow Claimant's bilateral knee symptoms and treatment, as well as those of his sleep apnea and shoulder injury, to be considered in the evaluation of the Second Injury Fund's liability for permanent total disability benefits. Employee amended his claim on December 12, 2004 to an injury date of April18, 2003. In that amended claim he also added the employer List and Clark, which was the employer he was working for on April 18, 2003. Employee settled his claim with Republic Services on March 6, 2006 for the injury date of November 6, 2000.

At hearing the Court inquired as to the status of the claim against List and Clark:

"THE COURT: I did have one question, Mr. Mayer. You have a settlement -- let me put it this way. You amended your claim to include List \& Clark for an injury date of April 18, 2003 on November 14, 2004, correct?

"MR. MAYER: Yes.

"THE COURT: That's what I'm looking at --

"MR. MAYER: Yes.

"THE COURT: -- in the computer.

"MR. MAYER: Yes. Yeah.

"THE COURT: I see that there is a settlement stipulation with Republic Services who is the original employer that you filed the first claim for. What happened with the claim with regard to the other employer that you amended the claim for, List \& Clark?

"MR. MAYER: Nothing. And they never responded so I presumed that -obviously, it's been settled with Republic. It's the same. It is -- that is the injury part.

"THE COURT: Is List \& Clark the same company as Republic Services?

"MR. MAYER: No.

"THE COURT: Okay. So it's a separate --

"MR. MAYER: It is separate, yes.

"THE COURT: And they never filed an answer?

"MR. MAYER: That's correct.

"THE COURT: Okay. But you never pursued the claim against them in any way other than filing --

"MR. MAYER: Other than filing the amended claim, that's correct. '

It appears that Employee has never pursued the claim against List and Clark for the injury date of April 18, 2003. There is no settlement or award in the records or introduced into evidence. It appears that the claim against List and Clark has been all but abandoned. There are no documents confirming either a settlement or a dismissal of List and Clark. Therefore this Court may only consider the injury date of November 6, 2000 with regard to the Second Injury Fund liability in the case at hand.

Mr. Wickam first complained of numbness in his upper extremities shortly after his 1999 shoulder injury, leading to his diagnosis of moderate to severe carpal tunnel syndrome with mild ulnar neuropathy at the wrist in November 6, 2000. As this was the date his symptoms were diagnosed by a medical physician, I conclude the proper injury date for this claim to be November 6, 2000. Further supporting this finding is the fact Claimant initially filed a Claim for Compensation with the Missouri Division of Workers' Compensation with this date listed as the date of injury. Also, Dr. Koprivica, in his 2001 report, noted the treatment Claimant had received to his upper extremities and opined it was work related and that further treatment was necessary. To find that Claimant's actual occupational disease was not present until after these events occurred would be incorrect. Employee may have suffered additional injury to his upper extremities over time but it was with a different employer. He did include that employer in his amended claim but never pursued that claim against that employer (List and Clark). Hence the Court may only look to the November 6, 2000 injury settled with Republic Services as an injury date for purposes of permanent total disability against the Second Injury Fund, herein.

The next issue to be determined is whether the Claimant has suffered any disability from his last accident, in this case his November 6, 2000 injury date. Claimant, while being treated for his 1999 shoulder injury complained of right hand numbness and tingling. His treating physician ran an EMG test and found that he suffered from mild to moderate carpel tunnel syndrome and suggested treatment. Claimant then filed his claim for the occupational disease caused by the repetitive trauma to his upper extremities from his job related duties. Claimant underwent medical care and was ultimately evaluated and determined to have suffered disability to his upper extremities for which he settled his claim with his employer for 18 % permanent partial disability to the body as a whole as related to his bilateral wrists. The second injury Fund offered no evidence to counter this disability. Employee testified that his wrists bothered him and his hands were weaker and would become numb. The Court finds that Claimant did suffer an 18\% permanent partial disability to the body as a whole related to his bilateral wrists.

The next issue to be determined is whether the Second Injury Fund is liable to the Employee for any disability, either permanent partial or permanent total disability. In this case

the Employee has alleged that he is permanently and totally disabled. There is no credible evidence that the Employee was rendered permanently and totally disabled as a result of the injury caused by his November 6, 2000 accident considered alone and without regard to his alleged preexisting disability. An employer is liable for permanent total disability compensation under $\S 287.220$ RSMo 1994 only where it is found that the primary accident alone caused the employee to be permanently and totally disabled. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271,276 (Mo. App. 1996); Feldman v. Sterling Properties, 910 S.W.2d 808 (Mo. App. 1995); Moorehead v. Lismark Distributing Company, 884 S.W.2d 416, 419 (Mo. App. 1994); Kern v. General Installation, 740 S.W.2d 691, 692 (Mo. App. 1987). Compensation cases in which there has been a previous disability are to be determined under §287.220.1 RSMo (1994). In partial disability cases, the Employer is liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. In total disability cases, the Employer is liable only for the disability resulting from the last injury considered alone and of itself. The Employer's liability for permanent partial disability compensation is determined under §287.190; Stewart v. Johnson, 398 S.W.2d 850 (Mo.App. 1996).

In order to determine whether an individual is permanently and totally disabled under the Missouri Workers' Compensation Law it is necessary to consider the Claimant's age, education, occupational history and job skills, as well as his physical condition in determining his ability to compete in the open labor market.

The terms "any employment" means "any reasonable or normal employment or occupation." Brown vs. Treasurer of Missouri, 795 S.W.2d 479, 483 (Mo App. 1990). The Missouri Courts have repeatedly held that the test for determining permanent total disability is whether the individual is able to compete in the open labor market and whether the employer in the usual course of business would reasonably be expected to employ the Employee in his present physical condition. See e.g. Faubion v. Swift Adhesives Co., 869 S.W.2d 839 (Mo App. 1994); Hines v. Conston of Missouri \#852, 857 S.W.2d 546 (Mo App 1993); Lawrence v. R-VIII School District, 834 S.W.2d 789 (Mo app 1992); Carron v. St. Genevieve School District, 800 S.W.2d 64 (Mo App. 1991); Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195 (Mo App. 1990). The critical question is whether Employer could reasonably be expected to hire the Claimant, considering her present physical condition, and reasonably expect her to successfully perform the work. Forshee v. Landmark Excavating and Equipment, et al, No. 85582 (Mo app. E.D. 2005); Sutton v. Vee Jay Cement Contracting Company, 37 S.W.3 ${ }^{\text {rd }} 803,811$ (Mo App. 2000). Total disability means the inability to return to any reasonable or normal employment. It does not require that the employee be completely inactive or inert. Isaac v. Atlas Plastic Corporation, 793 S.W.2d 165 (Mo app. 1990); Kowalski v. M.G. Metals and Sales, Inc., 631 S.W.2d 919 (Mo App. 1982). The following factors are to be considered in determining whether an individual is permanently and totally disabled: the Claimant's physical condition, including his limitations and capabilities, his age, education and occupational background and skills. See generally Brown v. Treasurer of Missouri, 795 S.W.2d 479 (Mo App. 1990); Issac, 793 S.W3d 165 (MO App. 1990); Reve v. Kindell's Mercantile Company, Inc., 793 S.W.2d 917 (Mo App. 1990).

The last factor in determining whether a person is permanently and totally disabled under the Missouri Workers' Compensation Law is the Claimant's physical condition. The initial

relevant issue is the Claimant's disability caused by the injury in the work-related accident. The credible testimony of a claimant concerning work-related functioning can constitute competent and substantial evidence. See Hampton v. Big Boy Steel Erection, 121 S.W.3 220, 223-224 (Mo. Banc 2003).

Three medical and vocational experts testified in this case. The two that rendered opinions regarding Mr. Wickam's ability to work in the open labor market, Dr. Koprivica and Mary Titterington, both relied on the diagnoses, symptoms, and limitations of Claimant's bilateral knee, right shoulder and sleep apnea problems. These conditions were discussed by both experts in regard to the April 2003 injury date. Neither expert discussed these conditions as they affected the Employee prior to his November 6, 2000 injury. There is no evidence of how Employee's knees, shoulder or his sleep apnea may have affected his ability to work prior to his November 6, 2000 injury. The only evidence the Court finds regarding his sleep apnea is the April 1999 diagnosis of such. However there is very little information in those records other than that he was fatigued to aid this court in determining the effect of the sleep apnea on Employee prior to the 2000 injury. Also the first medical record to be found in the evidence regarding his knees is the one from Dr. Thomas in July 21, 2003. In fact the FCE dated June 5, 2001, shows that Employee was capable of kneeling, standing, sitting, stooping, squatting, and crawling on a frequent basis. All these activities affect his knees. It appears to indicate that his knees were not affecting him to such a degree that they would be a hindrance or obstacle to his employment even after his 2000 injury. As stated before he did testify to using a milk crate to aid himself with climbing into his machine but again there is no timeframe within which to determine if it was before or after his 2000 injury. As a result, I find that Dr. Koprivica and Mary Titterington's opinions are not relevant to the injury date of November 6, 2000 in that they do not discuss Employee's disabilities prior to the 2000 injury date. Further it is evident that Claimant continued to work after his November 6, 2000 in jury in the same type of employment, albeit with different employers. This work included operating earth moving equipment for List and Clark as well as operating a water truck for I Decker. Both jobs were considered medium and semi-skilled work. Claimant was able to obtain these jobs in the open labor market and there was no evidence of extreme accommodation. Both of these jobs were performed between September 2002 and April 2003, well after his November 6, 2000 injury date. The Employee has failed to carry his burden of proof that he was permanently totally disabled when considering his 2000 occupational disease injury and his pre-existing disabilities considered as of November 6, 2000 .

As I find that Mr. Wickam is not permanently and totally disabled, regarding his November 6, 2000 injury, the next issue to evaluate is the liability of the Second Injury Fund for permanent partial disability benefits.

In order for the Fund to be liable for permanent disability benefits, the worker must have "a preexisting permanent partial disability whether from compensable injury or otherwise . . .." §287.220.1, RSMo. As stated earlier the effect of Claimant's knee problems and his sleep apnea are not considered pre-existing for purposes of the 2000 injury date. The knees were not diagnosed until after that injury date and there was no clear evidence that they affected him prior to the 2000 injury date. The sleep apnea was diagnosed in mid 1999 but again the claimant failed

to provide evidence that it affected him prior to the 2000 date such that it would be considered a hindrance or obstacle to his employment.

Claimants 1999 shoulder injury occurred prior to his 2000 injury date. However he continued to treat for that injury after the 2000 injury and there was no final determination of any disability to his shoulder until well after the 2000 injury date. Where a claimant's injury has not reached MMI, permanent partial disability cannot be determined for that injury and it cannot be considered for Fund liability. Hoven v. Treasurer, 414 S.W.3d 676, 678, 681 (Mo. App. E.D. 2013). Where doctors had indicated that a worker might benefit from or might need further treatment, including possibly surgery, the injury was not considered to be at MMI and thus not permanent for Fund liability consideration. Hoven, 414 S.W.3d at 679. An issue in Hoven was whether the claimant's 2004 injury could be considered for Fund liability for his primary injury in 2007. Id. at 681. The claimant's testimony, as well as evidence from treating doctors, indicated he remained in need of further treatment at the time of the primary injury. See id. at 679. It did not matter that one doctor had issued a letter indicating the claimant was at MMI for his prior 2004 injury because subsequent to the issuance of that MMI opinion and the primary injury, the claimant had surgery for the prior injury. Id. at 679-80. The fact that the prior disability settled with the employer prior to his primary 2007 injury also did not change the conclusion that the claimant's prior injury was not at MMI for Fund liability determination. Id. at 680-81. The conclusive presumption of $\S 287.190 .6(1)$ does not apply to the Fund, nor is the Fund bound by or collaterally estopped by a settlement to which it is not a party. Id.

Where an employee suffered a neck injury in 2006, elected not to undergo surgery at that time, suffered a later work injury in 2007, and then elected to have the neck surgery in 2008, the 2006 neck injury could not be considered a permanent partial disability for Fund liability for the 2007 work injury because it did not reach MMI until after his primary 2007 injury. Miller v. Treasurer, 2014 WL 1225214 at *1-2 (Mo. App. E.D. March 25, 2014).

At the time of the onset of the 2000 primary occupational disease claim, Claimant was still receiving treatment for his prior right shoulder injury, and in fact would not undergo surgery to repair the injury until exactly one month later. As a result, it is not possible to evaluate the permanent partial disability that existed in the right shoulder as of November 6, 2000, and it cannot be considered for Fund liability.

With the elimination of the pre-existing right shoulder, there are two other alleged preexisting disabilities to evaluate. In regards to the finger amputations, no physician provided testimony that this injury was a hindrance or obstacle to employment or even provided a rating of disability. Further there has been no testimony from Employee regarding how his injury affected his ability to work or on his daily functioning as a result. In fact the Employee stated that over the 50 years with his fingers in the condition they were in he basically became used to them and was able to work fine with them. Therefore I cannot factor it into an analysis of the Fund's liability.

The sole remaining pre-existing disability is the psychological disability outlined by Dr. Schmidt. Dr. Schmidt opined a pre-existing psychological disability of 20 % body as a whole. It

is not clear which injury date Dr. Schmidt is referring to in his report but in his deposition he referred to the 2003 injury date, which again this court finds is not the date to be considered herein. Further I find this rating to be high in light of the very minimal impact Employee's conditions had on his work and personal life as outlined in Dr. Schmidt's report. I find his preexisting psychological disability to be 10 % of the body as a whole. As this does not meet the statutory threshold that triggers Fund liability, the Second Injury Fund is not liable for any permanent partial disability benefits.

Therefore, the Second Injury fund is not liable for any benefits in this matter.

Made by: $\qquad$

Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation