Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the Fund in all cases of permanent disability where there has been previous disability. The administrative law judge awarded permanent partial disability benefits to employee from the Second Injury Fund based upon a finding that her preexisting disability referable to the low back interacts synergistically with the disabling effects of her primary injury affecting the left ring finger. The administrative law judge excluded from his consideration any disability referable to the right knee injury of April 2013, based on his finding that the right knee injury had not reached maximum medical improvement as of the date of the primary injury in this matter.
We acknowledge employee's argument, in her brief, that she need not have demonstrated that her right knee injury had reached maximum medical improvement as of the occurrence of the primary injury. In support, employee cites case law holding that such a showing is not necessary in the context of a claim against the Second Injury Fund for permanent total disability benefits. See, e.g., Lewis v. Treasurer of Mo., 435 S.W.3d 144, 160 (Mo. App. 2014). We are not persuaded, as the claim presently before us is one for permanent partial disability benefits, and the applicable case law is clear that an employee must demonstrate the level of preexisting permanent partial disability referable to a prior condition existing as of the date of the primary injury in order to include such condition in any calculation of Second Injury Fund liability for permanent partial disability benefits. See, e.g., Miller v. Treasurer, 425 S.W.3d 218, 220-21 (Mo. App. 2014). Employee advances no argument why Miller and similar cases are not
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controlling here, nor does she argue that any disability referable to her right knee injury was permanent and quantifiable as of June 27, 2013.
We have found that employee's right knee injury of April 2013 had not reached maximum medical improvement as of the date of the primary injury in this matter. We conclude that the April 2013 right knee injury is properly excluded from consideration for purposes of assessing Second Injury Fund liability.
Turning to employee's preexisting low back condition, we have found that the record before us fails to persuasively demonstrate a synergistic interaction as between this condition and the subsequent compensable injury affecting the left ring finger.
[T]he claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. This is referred to as the "synergistic effect." If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability.
Winingear v. Treasurer of State, 474 S.W.3d 203, 207-08 (Mo. App. 2015).
In her testimony, employee did not describe any new or enhanced disability or limitation specifically referable to an interaction between her preexisting low back injury and the subsequent injury to her left ring finger. Employee does advance the expert medical opinion of Dr. Berkin that the combination of employee's disabilities is significantly greater than their simple sum, and that a loading factor should be applied, but we have deemed this opinion lacking persuasive force. We have long held that conclusory expert opinions, in the absence of any explanation or supporting evidence, are generally insufficient to satisfy the proponent's burden of proof; we are not persuaded to depart from this general policy here.
In sum, owing to the lack of persuasive evidence on the topic, we have not been persuaded to make a finding that the effects of employee's primary left ring finger injury and her preexisting low back disability combine in such a way as to result in greater or enhanced disability beyond the simple sum of disability referable to these conditions. Instead, we have found that there is no such synergistic interaction. We conclude, therefore, that the Second Injury Fund is not liable for permanent partial disability benefits.