Kenneth Weber v. Kraft Foods, Inc.

The ALJ found as follows:

1. The work accident of October 26, 2008, was the prevailing factor in the cause of injury to the employee's lumbar spine.
2. The December 30, 2008, surgery consisting of discectomy and fusion with instrumentation at L4-5 was reasonably required to cure and relieve employee of the effects of the injuries sustained in the work accident of October 26, 2008.
3. The November 3, 2009, surgery consisting of anterior cervical discectomy and fusion from C3 to T1 was reasonably required to cure and relieve employee of the effects of the injuries sustained in the work accident of October 26, 2008.
4. As a direct result of the injuries employee sustained in the work accident of October 26, 2008, employee has sustained PPD of 15 % of the body as a whole rated at the lumbar spine and additional PPD of 15 % of the body as a whole rated at the cervical spine, resulting in 120 weeks of PPD.
5. As of the time the last injury was sustained, employee had a preexisting PPD of the lumbar spine which disability meets the statutory threshold and is of such seriousness as to constitute a hindrance or obstacle to employment or reemployment, being 22\% PPD of the body as a whole (88 weeks)
6. As of the time the last injury was sustained, employee had a preexisting PPD of the right elbow which was of such seriousness as to constitute a hindrance or obstacle to employment or reemployment, being 10\% PPD of the right elbow ( 21 weeks).
7. Employer terminated employee's employment after the December 30, 2008, back surgery.
8. The test for PTD is whether the employee can compete in the open labor market.
9. Despite his significant disabilities, employee has been working five days a week, four hours a day, at a car wash establishment, for the past five years.
10. Employment in the open labor market can include part-time work.
11. Employee obtained his position at the car wash by applying and interviewing for the job.
12. Employee has proven his ability to compete in the open labor market.
13. Employee is not permanently and totally disabled.
14. The credible evidence establishes that the last injury, combined with the preexisting permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. A 20\% loading factor is required to compensate employee for the synergistic combination of these disabilities. The Second Injury Fund liability for PPD benefits is thus calculated as follows: 120 weeks for the last injury +109 weeks for preexisting disabilities $=229$ weeks X 20 % load $=45.8 weeks. 45.8 weeks times \ 404.66 equals $\ 18,533.43.

Employee filed an application for review alleging the ALJ erred in concluding that employee's informal, accommodated part-time work constituted the ability to compete in the open labor market and therefore erred in denying claimant PTD benefits.

For the reasons stated below, we modify the award of the ALJ referable to the issue of nature and extent of the employee's permanent disability and liability of the Second Injury Fund. In all other respects, we affirm and adopt the award and decision of the ALJ.

Section 287.220 RSMo 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 he 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.

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).

Section 287.220 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). The ALJ found that employee sustained PPD of 15 % of the body as a whole rated at the lumbar spine and additional PPD of 15 % of the body as a whole rated at the cervical spine as a direct result of the injuries he sustained in the work accident of October 26, 2008. We affirm these findings and agree with the ALJ's conclusion that employee sustained only a permanent partial disability as a result of the work injury. ${ }^{1}$ We must next determine the nature and extent of the employee's disability as a result of the effects of his work injury in combination with his preexisting disabilities.

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[^0]: ${ }^{1}$ On August 8, 2013, employee agreed to a compromise lump sum settlement of his claim against the employer/insurer related to his October 26, 2008, injury. Claimant's Exhibit 15, Tr. 483-489. The settlement provided for payment of $\ 20,233.00, based on permanent partial disability of approximately 12.5 % of the body as a whole and a compromise of all other disputes. Employee's settlement with employer/insurer prior to hearing does not preclude the ALJ or the Commission from independently determining the disability attributable to the employee's work-related injury for purposes of resolving his remaining claim against the Second Injury Fund.

The ALJ found that at the time of the primary injury employee had the following preexisting disabilities:

1. PPD of the lumbar spine of 22 % of the body as a whole ( 88 weeks)
2. PPD of the right elbow of 10 % of the right elbow ( 21 weeks)

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).

We agree with the ALJ's conclusion that employee's preexisting disabilities were serious enough to constitute a hindrance or obstacle to employment and that each of employee's preexisting disabling conditions combined with his work injury to result in worse disability than would have resulted in the absence of the preexisting conditions. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620. (Mo. App. 1995). We disagree with the ALJ's conclusion that the employee has proven his ability to compete in the open labor market and is therefore not permanently and totally disabled.

As of the date of this award, the employee is sixty-five years of age. His wife of fortyfour years accompanied him to the hearing. The ALJ described employee as "very pleasant." Employee has trouble with comprehension and retention. He believes his low birth weight of two pounds and eight ounces adversely affected his development. He was held back in school and attended special education classes. Employee recalls being diagnosed with attention deficit disorder as a child. He graduated from high school in 1971. For the next thirty-seven years he worked almost exclusively in jobs that required the performance of heavy labor. His work for employer involved lifting and loading fifty pound bags of meat cure for seven hours with no assistance and no breaks. Employee tried unsuccessfully to pass the test to become a commercial driver. He was unable to obtain higher than a grade "C" license from the state relating to work in the field of water treatment. He was forced to drop out of a course in radio and television repair because he fell behind in his lessons. Employee has no computer skills. When the employee attempted to return to work after his 2008 work injury, his employer told him that due to his medical restrictions "I couldn't work there any longer, that they were afraid I would get paralyzed." Transcript, 25. As a result of disability attributable to his multiple injuries, the employee cannot do any physical work. He is unable to do heavy lifting. He relies on a friend to perform needed home repairs. He is no longer able to work in a garden. In 2009, after employer's discharge, the employee successfully applied for social security disability.

In 2010, the employee learned about a part-time job at a local car wash through his grandson. The car wash owner interviewed employee and hired him to work Monday through Friday, from 8:00 a.m. until noon. Employee characterizes his position as a manager. He testified that he greets customers, collects money out of machines in the car wash bays, takes deposits to the bank, and cleans up the car wash bays using a power wash.

The car wash owner learned about employee through a former worker at his car wash facility. Owner testified he hired employee knowing that employee's abilities are very limited, that the employee has had a rough time in life, and that it would be difficult for employee to find employment in the local labor market. Owner testified he hired employee in part because he "felt bad for him." Owner allows employee freedom to leave the premises off and on during his 8:00 a.m. to noon shift. He explained "[The employee is] not really tied down. I'm not upset if I show up and he's not there because I know at some point he'll be back." Transcript, 499. E