Michael Deters v. Boeing Company

Injury No.: 14-091486

Employee: Michael Deters

- 2 -

benefits from the Second Injury Fund—accrued on the date that employee reached maximum medical improvement. This conclusion by the administrative law judge was correct under the relevant and controlling case law.

Specifically, in the case of Jim Plunkett, Inc. v. Ard, 499 S.W.3d 333, 339 (Mo. App. 2016), the court considered the question when an injured worker's right to permanent disability benefits must be deemed to have "accrued." Id. at 338-39. Consulting prior case law, and observing that the degree of permanent disability associated with an injury cannot be determined until the injury reaches the point where it will no longer improve with medical treatment, the court confirmed that an employee's right to payment of weekly benefits for permanent disability "accrues at the time [the employee] reaches maximum medical improvement," and not at any other time. Id. There are a number of other appellate decisions reaching the same result. See, e.g., Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008) and Cantrell v. Baldwin Transp., Inc., 296 S.W.3d 17, 20 (Mo. App. 2009).

Our courts have also consistently declared the fact an employee receives some earnings during a particular time period is not preclusive of an award of permanent total disability benefits during the same time period. See, e.g., Brashers v. Treasurer of the State As Custodian of the Second Injury Fund, 442 S.W.3d 152 (Mo. App. 2014); Abt v. Miss. Lime Co., 388 S.W.3d 571 (Mo. App. 2012); Molder v. Mo. State Treasurer, 342 S.W.3d 406 (Mo. App. 2011); and Brown v. Treasurer of Missouri, 795 S.W.2d 479 (Mo. App. 1990).

Turning to the parties' Memorandum of September 22, 2017, we note that they do not, therein, specifically address the date of maximum medical improvement. The parties now agree, however, that permanent total disability benefits should commence from the Second Injury Fund on May 29, 2015, "when Claimant was found to be PTD[.]" Memorandum, page 1. The question presently before us is whether we are able to give effect to the parties' agreement, or whether it constitutes an attempt to fix a legal conclusion for which there is no support in the law.

[S]tipulations of fact are generally binding in Missouri. Although stipulations are controlling and conclusive and courts are bound to enforce them, they are to be viewed with an eye toward what they were designed to accomplish. Also, a stipulation may not be invoked to fix a conclusion of law. ... [T]he Commission [is] not bound by any stipulation which [is] clearly contrary to the actual facts and which would result in a manifest injustice.

Bull v. Excel Corp., 985 S.W.2d 411, 415-19 (Mo. App. 1999).

On the other hand, we are mindful of the public policy favoring resolution of disputed claims via compromise, and we are generally inclined to give effect to parties' voluntary settlement of legitimately justiciable disputes, wherever possible.

In accordance with the principle that the law favors a compromise, the Legislature intended to and did preserve to the parties in compensation cases their right to make voluntary agreements of settlement with the approval of the commission, and such a contract once made is just as inviolable as any other valid agreement. The integrity of valid contracts should not be impaired, and there is nothing in the compensation law or elsewhere to justify any action inimical to contractual rights.

Brown v. Corn Prods. Ref. Co., 55 S.W.2d 706, 710 (1932).

1. Are any benefits awarded herein? Yes.
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: November 19, 2014
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was employed as a SMAR for Employer and injured his left elbow while using a vice.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Left elbow.
14. Nature and extent of any permanent disability: 15 % permanent partial disability to the left elbow.
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? \$4,229.49

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 1,520.80
3. Weekly compensation rate: $\$ 861.04 / \ 451.02
4. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: Against Employer previously settled.
2. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential (\410.02) payable by SIF for 31.5 weeks beginning January 13, 2015 and thereafter \ 861.04 per week for Claimant's lifetime or until modified by law.

TOTAL: TO BE DETERMINED

1. Future requirements awarded:

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the attorney, James S. Haupt, for necessary legal services rendered to the claimant.

Employee: Michael Deters

Injury No.: 14-091486

Dependents: N/A

Employer: Boeing Company

Additional Party: Second Injury Fund

Insurer: Sedgwick CMS

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJB

The matter of Michael Deters ("Claimant") proceeded to hearing to determine the liability of the Second Injury Fund ("SIF"). Attorney James S. Haupt represented Claimant. Assistant Attorney General Da-Niel Cunningham represented the Second Injury Fund. Boeing Company ("Employer") previously settled its risk of liability and Claimant proceeded against the SIF only.

The parties stipulated that on or about November 19, 2014, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in St. Louis, Missouri. The parties stipulated that Claimant was an employee of Employer earning an average weekly wage of $\ 1,520.80, which resulted in applicable rates of compensation of $\ 861.04 for total disability benefits and $\ 451.02 for permanent partial disability ("PPD") benefits. The parties further stipulated venue is proper in the city of St. Louis, Employer received proper notice, and Claimant filed the claim within the time required by law. Employer paid $\ 0 in temporary total disability ("TTD") benefits and paid medical benefits totaling $\ 4,229.49. The parties agreed that Claimant reached maximum medical improvement ("MMI") from his work-related injury on January 12, 2015.

The only issue for determination is the liability of the Second Injury Fund with regard to permanent total disability benefits.

At the hearing, Claimant testified in person and offered the depositions of Dr. David Volarich and Mr. James England, as well as medical records and multiple settlement stipulations. The Second Injury Fund did not offer any exhibits.

Claimant is an unemployed individual who was working for Boeing Company as a SMAR (sheet metal worker) on or about November 19, 2014. On November 19, 2014, Claimant was tightening a bench vice with his left arm when he felt a snap in his left elbow. He noticed immediate pain in the left elbow and reported his injury to Employer. Claimant is right hand dominant but was using his left hand on the vice due to numerous preexisting injuries to his right arm and hand. At the time of the injury, he was sixty-six years old.

Claimant attended O'Fallon High School and later transferred to Central High School where he graduated in 1966. He did not attend college and has no special training or vocational training. He served in the Army from 1967 to 1969, was honorably discharged, and sustained no injuries while in the Army. Claimant attended the St. Louis Police Academy and worked for the Florissant Police Department for approximately 11 years as a police officer. He also worked briefly as a salesperson at the Federal Meat Company. Claimant, thereafter, went to work for Employer, then named McDonnell Douglas, in 1986 as a sheet metal worker where he worked up until May 2015.

Claimant was initially examined at the Boeing Clinic. An MRI of the left elbow was performed on November 25, 2014. The MRI was interpreted as revealing a large joint effusion along with high-grade tears to the common extensor tendon and the lateral collateral ligament near their origins from the lateral epicondyle of the humerus over the lateral aspect of the elbow.

Employer referred Claimant to Dr. David Brown for further evaluation and medical treatment. Claimant complained of having pain over the medial aspect and ulnar forearm. Due to a discrepancy between the MRI findings and Claimant's clinical finding and symptoms, Dr. Brown recommended an MRI with arthrogram to evaluate for possible collateral ligament injury and to also confirm the previous MRI findings.

Claimant underwent the MRI with arthrogram on November 28, 2014. The test revealed a tear of the radial collateral ligament, a partial tear of the common extensor tendon at the lateral epicondyle, and a partial tear of the ulnar collateral ligament unchanged from the prior study. Dr. Brown recommended and Claimant received physical therapy for approximately four weeks. Dr. Brown released Claimant from his care on January 12, 2015 without restrictions and later rated him with 3 % permanent partial disability of the left elbow as a result of the work injury.

Although Dr. Brown returned him to work without restriction, Claimant testified he returned to work on January 12, 2015, but was having severe difficulties performing his work activities because of his primary injury to his left elbow in combination with his preexisting medical conditions. He worked slower and sometimes with assistance of co-employees, was unable to complete activities in a timely manner, and was in such severe pain to numerous body parts that he terminated his employment with Employer on May 31, 2015. Claimant and Employer settled his left elbow claim for 15 % permanent partial disability. The claim against the Second Injury Fund was left open. Claimant testified as to continuing problems and complaints regarding his left elbow as a result of his injury of November 19, 2014. He described how the severity of his complaints increased from his prior left elbow injury of April 16, 2012.

Claimant suffered from a number of preexisting disabling injuries/conditions that impacted his ability to work prior to November 19, 2014. On June 23, 1994, Claimant sustained an injury to his low back while moving a side panel at work. It was recommended he consult with a neurosurgeon. Claimant underwent a CT on August 5, 1994 which showed an L5-S1 herniated nucleus pulposus.

Claimant continued to have on-and-off low back pain, along with numbness in his left leg and left foot stemming from his back complaints, when he had another low back injury while lifting a heavy drill at work in August 2002. The injury caused him to experience pain going down his right leg, in addition to his low back. He was referred to Dr. David Raskas, a surgeon. After reviewing his MRI scan, Dr. Raskas diagnosed Claimant with L4-L5 severe degenerative disk disease, some spondylolisthesis at L3-4 with some accompanying stenosis, and an L5-S1 central disc protrusion. Due to ongoing episodes of back pain, Dr. Raskas recommended trying some epidurals. Claimant was released to go back to work after receiving physical therapy, but his low back pain continued and affected the performance of his work duties.

Claimant's low back pain continued and worsened such that he returned to Dr. Raskas in May 2007 mostly for complaints about his right buttock and radiation into his right leg, as well as numbness and tingling in his right leg. A myelogram on June 8, 2007, revealed a disc herniation at L3-L4. On August 17, 2007, Dr. Raskas took him to surgery and performed a "L3L4 X-stop procedure, L3-4 partial fasciectomy, L3-4 fluoroscopic guidance and replacement of instrumentation."

However, the surgery failed to provide long-standing relief. With his symptoms returning to almost the level where they were prior to surgery, Claimant was referred to Dr. Patricia Hurford for evaluation on September 25, 2007. She recommended a transforaminal or selective epidural at the L4-5 level. Due to ongoing, increasing pain in his back going into both his right and left legs, Dr. Hurford recommended a myelogram and CT scan. Claimant returned to Dr. Raskas on January 7, 2008. Dr. Raskas reviewed the myelogram and CT scan results and noted some significant stenosis more to the left side at L3-L4. On February 21, 2008, Claimant underwent a laminectomy at L3-4, L4-5 with removal of X-stop, microdissection with microscopic foraminotomies, minimal facet fusion at L3-4, L4-5, placement of Sextant pedicle screws L3-4-5 with PEEK rods, and fluoroscopic guidance for placement of instrumentation. Dr. Raskas diagnosed Claimant post-operatively with spondylolisthesis with spinal stenosis at L3-4, and spinal stenosis L4-5.

Claimant returned to work in April 2008 but with several restrictions. He continued treatment with Dr. Raskas for several months. In October 2008, Dr. Raskas noted his limited ambulation due to his back pain. He continued to have low back pain which affected his job performance up until the 2014 primary injury. Claimant settled a workers' compensation injury (Injury No: 05-093790) against the Second Injury Fund which allocated 12.5\% BAW with reference to the low back. As noted in Dr. Volarich's report dated October 17, 2014, in December 2011, Dr. Paul Matz diagnosed lumbar stenosis at L3 and took Claimant to surgery, performing laminectomies and foraminotomies at L2 and L3.

Claimant injured his low back again on October 6, 2014, after he fell off a stool in his work area and landed on his lower back and right hip area. He was treated at the Boeing Clinic

and diagnosed with a lumbosacral/buttock contusion. Claimant settled his workers' compensation claim (Injury No: 14-076462) for 4\% permanent partial disability of the low back.

Claimant testified in great detail as to ongoing problems and symptoms of the low back in performing job duties; That it caused him to perform his work in different ways, that it caused problems while lifting and moving objects in his job activities, that it caused him to work slower and it caused him to ask for help in performing some of his duties at work. Claimant also testified his sleep was disrupted because of his low back condition.

Prior to the 2014 injury, Claimant had disabling injuries/condition to his right wrist and right elbow. In 1995, Claimant began to experience numbness and tingling in his right hand while working. Following an abnormal EMG/NCS, Claimant was diagnosed with right carpal tunnel syndrome. Leading up to September 20, 2005, he continued to have problems with his right hand with regards to his work activities for Boeing and was referred to Dr. David Brown. On February 17, 2006, Claimant underwent a right carpal tunnel release and right ulnar nerve transposition. Due to ongoing symptoms, including numbness in his right little and ring fingers and subjective diminished sensation in the ulnar nerve distribution, Dr. Brown recommended repeat nerve conduction studies. Dr. Brown performed a revision right ulnar nerve transposition on August 3, 2006.

Claimant continued treatment with Dr. Brown as he still experienced numbness in his little and ring fingers and weakness and decreased grip strength in the hand. Dr. Brown recommended repeat nerve conduction studies to objectively measure Claimant's progress. Following the studies, Dr. Brown discharged Claimant noting that the studies did not demonstrate evidence of ongoing entrapment neuropathy. Clamant settled his workers' compensation case (Injury No: 05-093790) for 15\% permanent partial disability of the right wrist and 25 % permanent partial disability of the right elbow. He testified that after being released from treatment he still had problems with strength and weakness in his right wrist, as well as numbness in his right little and ring fingers. The problems affected him at work with lifting and moving objects. He would also take breaks and need to ask for assistance. His sleep was affected. These problems persisted up until the time of the primary injury.

Claimant developed right wrist pain again in early 2014 and filed a claim for compensation with a work injury on February 25, 2014. He presented to neurologist Dr. Daniel Phillips on March 3, 2014, with new symptoms of sharp, aching, right volar wrist pain with numbness and tingling involving his last three digits, preferentially the middle and ring. Dr. Phillips performed nerve conduction studies which were consistent with no recurrence of carpal or cubital tunnel syndrome, but chronic C7 radiculopathy. Claimant was referred to a neurosurgeon but did not meet with one prior to leaving his job and is not actively treating. Claimant settled his claim (Injury No: 14-012726) for 4\% permanent partial disability of the right hand.

Claimant testified in great detail as to subsequent problems and symptoms of the right wrist and elbow in performing his job duties. For example, they caused him to perform his work in different ways, created problems when he lifted and moved objects, caused him to work slower, and caused him to ask for help at work. Claimant also testified his sleep was disrupted because of his right wrist and elbow conditions.

Claimant also had a preexisting disabling condition to his cervical spine. He began to experience neck pain while at work with Employer in 1997. He treated at Christian Hospital in 1997 and was diagnosed with severe degenerative disk disease in his cervical spine. Due to ongoing problems, Claimant underwent a diskectomy and fusion at C6-C7 by Dr. Daniel Scodary on September 7, 1999.

Claimant returned to work but continued to have ongoing problems in his neck. He filed a claim for compensation for an injury occurring on March 1, 2001. On that day, Claimant presented to Dr. John E. Krettek, a neurosurgeon, with a three month history of localized headaches over the left suboccipital region and neck pain which is focal over the cervicothoracic region, extending over the left upper extremity. Claimant indicated the symptoms started in November 2000 while he was torquing 5/16" bolts to about 800 pounds. On February 15, 2005, Claimant underwent a cervical fusion from C5 to T1. Claimant settled the injury (Injury No: 01167377 ) for 20 % BAW referable to the cervical spine.

Claimant testified in great detail as to subsequent problems and symptoms of the cervical spine. The problems included limited cervical range of motion, difficulty sleeping, problems with overhead work, and pain with numbness radiating down his right arm. He had problems lifting and moving objects in his job activities. He needed to take breaks and ask for help from co-workers in performing some of his job duties. As an accommodation, Employer switched Claimant from working on the Boeing T-45 trainer for the Navy to the precision assemble center to help alleviate some of the neck stress. Other accommodations for his cervical spine and low back issues included the issuance of a tricycle and a handicap parking spot. Claimant also testified his sleep was disrupted because of his cervical spine condition.

Prior to the 2014 date of injury, Claimant had a disabling injury/condition to his left shoulder. On August 5, 2002, Claimant sustained accidental injury to his left shoulder at work with Employer when attempting to lift a 25 -pound steel panel and felt a "pop" in his left shoulder. Claimant sustained a tear to the rotator cuff. On January 10, 2003, Claimant underwent surgery on his left shoulder by Dr. James Emanuel in the form of debridement of the labrum and repair of the rotator cuff tear. Claimant testified he had ongoing symptoms regarding his left shoulder subsequent to this surgery. Claimant settled his workers' compensation case (Injury No: 02-078206) for 27.5 % permanent partial disability of the left shoulder.

Claimant testified in great detail as to subsequent problems and symptoms of the left shoulder both at and outside of work. Such problems include weakness and difficulty lifting objects above shoulder height. He has difficulty reaching with the left shoulder and difficulty putting on a belt around his waist. He worked slower and needed to take more breaks due to his left shoulder condition. His sleep was disrupted as well. His complaints were ongoing up until the time of the primary injury.

Prior to the 2014 date of injury, Claimant had disabling injuries/conditions to his right thumb. On January 31, 2008, Claimant sustained repetitive trauma to the right thumb causing a neuroma to the right sensory nerve. On April 17, 2008, Dr. Brown performed surgery for excision of the neuroma and reconstruction of the sensory nerve of Claimant's right thumb. Claimant testified he had ongoing symptoms regarding his right thumb subsequent to this surgery. Claimant settled his workers' compensation case (Injury No: 08-019660) for 27.5\% permanent partial disability of the right thumb. Claimant testified in great detail as to subsequent

problems and symptoms of the right thumb in performing job duties, that it caused him to perform his work in different ways, that it caused problems while lifting and moving objects in his job activities, that it caused him to work slower and it caused him to ask for help in performing some of his duties at work.

Prior to the 2014 date of injury, Claimant had a disabling injury/condition to his right shoulder. On July 16, 2009, Claimant sustained an injury while working for Boeing when a large drill locked causing his right shoulder to torque. Claimant sustained tears to the rotator cuff and a biceps tendon. On January 13, 2010, Claimant underwent surgery for right rotator cuff repair, debridement of the joint, a biceps tenotomy, a subacromial decompression and distal clavicle resection by Dr. Emanuel. Claimant settled his workers' compensation case (Injury No: 09-068103) for 20 % permanent partial disability of the right shoulder. Claimant testified in great detail as to subsequent problems and symptoms of the right shoulder in performing job duties, that it caused him to perform his work in different ways, that it caused problems while lifting and moving objects in his job activities, that it caused him to use other body parts to assist in performing his job duties, that it caused him to work slower and it caused him to ask for help in performing some of his job duties at work. Claimant also testified his sleep was disrupted because of his right shoulder condition.

On April 16, 2012, Claimant sustained a traumatic accidental work injury to his left elbow. The accidental injury occurred when Claimant was trying to catch a piece of equipment (jig) to prevent it from falling. Claimant felt an immediate pop and pain in the left elbow. The injury resulted in a rupture of the flexor pronator tendon origin from the medial epicondyle at the elbow. Claimant received authorized medical treatment, including surgery on June 7, 2012, by Dr. David Brown in the form of reattachment of the pronator tendon and decompression of the ulnar nerve. Due to a re-rupture, a second surgery was needed and performed on October 18, 2012, by Dr. David Brown in order to reattach the flexor pronator tendon origin. Dr. Brown released Claimant to return to work on February 4, 2013, but noted Claimant's residual symptoms of a hypermobile ulnar nerve at the elbow. After the April 16, 2012 accident, Claimant continued to experience pain in the left elbow with ongoing numbness and tingling in the left arm. Claimant and Employer settled the workers' compensation claim arising out of the accident of April 16, 2012, for 22.5 % of the left elbow. He returned to work upon his release from treatment but continued to have ongoing pain in the left elbow, and he performed his job duties differently and slower.

Claimant provided compelling testimony on how these various injuries/conditions over the years directly affected his ability to work. Employer made several accommodations to assist him in the performance of his duties. He was given a special parking space in 2008 on Employer's premises so that he would not have to walk so far. This accommodation was made at the request of Claimant's supervisor in an attempt to relieve some of the symptoms from Claimant's physical conditions. Employer also provided a stool for Claimant to perform his work duties. This enabled Claimant to sit on the stool and handle some of his tools in a fashion that took pressure off of his neck and low back. Claimant was also provided with coverings on vibrating tools at work. These coverings would lessen the vibration felt in Claimant's upper extremities while performing his work duties.

Claimant provided additional compelling testimony on his inability to continue to work because of the combination of all of his injuries. He altered the way he performed duties by

trying to use his upper extremities when his low back hurt, trying to use his legs when his arms hurt, trying to use his arms when his neck hurt, trying to use his left arm when his right arm was injured and by trying to use his right arm when his left arm was injured. Claimant testified that it was just impossible for him to continue to perform his work duties because of his physical limitations, lack of sleep, and pain in each of his body parts. The loss of sleep caused Claimant to be unable to concentrate on the performance of his job duties. He had trouble getting out of his vehicle, much less walking into the plant. It became increasingly difficult to use or pick up a drill. Difficulties at work led to difficulties with sleep. His problems became circular.

Dr. David Volarich testified by deposition on behalf of Claimant. Dr. Volarich is an osteopathic physician who is board certified in nuclear medicine, occupational medicine and is an independent medical examiner. He examined Claimant on two occasions, October 17, 2014, and January 6, 2016, at the request of Claimant's attorney. Dr. Volarich took a history, reviewed the medical treatment records, and performed a physical examination of Claimant on each occasion. With respect to the 2014 work injury, Dr. Volarich diagnosed severe left elbow medial compartment strain and aggravation of left elbow syndrome. He rated Claimant as having 20\% permanent partial disability of the left upper extremity rated at the elbow due to the severe strain injury and aggravation of his preexisting left elbow medial compartment syndrome. The rating was said to account for the injury's contribution to increased pain and ulnar nerve sensitivity in the left arm.

In addition, Dr. Volarich diagnosed and rated the following pre-existing injuries/conditions: 15 % permanent partial disability body as whole ("BAW") disability referable to the lumbar spine due to the injury of October 6, 2014; 45\% permanent partial disability BAW referable to the lumbar spine due to the prior surgeries and fusion pre-existing; 45 % permanent partial disability BAW referable to the cervical spine due to the surgery and fusion in 1999 and fusion in 2005; 30\% permanent partial disability of the left shoulder due to the internal derangement that required arthroscopic debridement and rotator cuff repair; 40 % permanent partial disability of the right wrist due to the carpal tunnel syndrome that required open tunnel release in 2006 and excision of the right thumb radial sensory neuroma in 2008; an additional 15 % permanent partial disability of the right hand due to the February 25, 2014 injury; 40 % permanent partial disability of the right elbow due to the cubital tunnel syndrome that required ulnar nerve transposition and flexor pronator origin lengthening and persistent ulnar neuropathy; 40 % permanent partial disability of the right shoulder due to the internal derangement that required arthroscopic rotator cuff and labrum repair in 2010; and 50\% permanent partial disability to the left elbow due to the tear of the flexor pronator tendon that required surgery in 2012.

Dr. Volarich opined Claimant's preexisting conditions represented a hindrance and obstacle to employment. He noted that the combination of Claimant's disabilities creates a substantially greater disability than the simple sum or total of each separate injury/condition and a loading factor should be added. Dr. Volarich concluded by stating that Claimant is unable to engage in any substantial gainful employment, nor can he be expected to perform in an ongoing working capacity in the future. Based on his medical assessment alone, Dr. Volarich opined that Claimant is permanently and totally disabled as a direct result of the work related injury of November 19, 2014 in combination with each and all of his pre-existing medical conditions.

Mr. James England, a certified rehabilitation counselor, issued a vocational report and testified by deposition on behalf of Claimant. He evaluated Claimant on March 16, 2016, to determine whether Claimant was able to be employed in the open labor market. He interviewed Claimant, reviewed medical records and medical opinions, and performed vocational testing. Mr. England testified Claimant normally would have transferrable skills usable down to a medium level of exertion in machine shops and to a light level of exertion in security work. However, the effect of his impairments negates the use of those skills. He did not believe Claimant could successfully compete for or sustain work activity in the long run due to the combination of his back problems as well as his upper extremities that would prevent him from sustaining work at any level of exertion. He agreed with Dr. Volarich that Claimant is totally disabled from a vocational standpoint.

Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. Sanders v. St. Clair Corp., 943 S.W.2d 12, 16 (Mo.App. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." Tiller v. 166 Auto Auction, 941 S.W.2d 863, 865 (Mo.App. 1997). The standard for determining whether an employee is permanently and totally disabled is whether the person is able to compete on the open job market, and the key test to be answered is whether an employer, in the usual course of business, would reasonably be expected to employ the person in his present physical condition. Houltzhouser v. Central Carrier Corp., 936 S.W.2d 908, 912 (Mo.App. 1997). An injured employee is not required to be completely inactive or inert in order to be totally disabled. Brown v. Treasurer of Mo., 795 S.W.2d 479, 483 (Mo.App. 1990). The pivotal question is whether any employer in the usual course of business would reasonably be expected to employ the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo.App. 1992).

"In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury." Blackshear v. Adecco, 420 S.W.3d 678, 681 (Mo. Ct. App. 2014) (citations omitted). A claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. Id. "If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount." Id. Based on the competent and substantial evidence, including Claimant's testimony, medical records, the settlement documents, and the opinions of the experts, I find Claimant sustained permanent partial disability equal to 15 % PPD of the left elbow. There is no evidence to suggest the primary work injury in and of itself is permanently and totally disabling.

Section 287.220 creates the Second Injury Fund and imposes liability on the Fund in certain cases of permanent disability where there is a preexisting disability. §287.220; Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App. E.D. 2000). If the claimant's last injury alone does not render him permanently totally disabled ("PTD"), then, to obtain compensation from the Fund, the claimant must show that he suffers from a preexisting PPD of such seriousness as to constitute a hindrance or obstacle to employment. §287.220.2; Patterson v. Central Freight

Lines, 452 S.W.3d 759, 764-65 (Mo. Ct. App. 2015). Claimant has presented ample evidence of his preexisting permanent partial disabilities which constituted a hindrance or obstacle to employment.

I find Claimant to be a credible witness. He testified in an open and honest manner about his ongoing complaints associated with his injuries, and did not engage in either exaggeration or minimization. He testified convincingly that he intended to work until age 70 or even 72 and had no plans to retire at age 66 . He was still contributing to his retirement plan and had no financial incentive to retire in May 2015.

In addition to the aforementioned previous settlements, Dr. Volarich endorsed a finding of prior disabilities which constituted a hindrance or obstacle to employment. These disabilities were supported by Claimant's testimony at trial. Dr. Volarich's opinion regarding Claimant's total disability was not contested by the SIF.

The only vocational rehabilitation expert to testify in this matter was Mr. James England. He noted that Claimant had continued to try to work after his last injury and even with accommodation from Employer finally reached a point where he could not sustain a job that allowed him to sit the majority of the day and lift only light amounts of weight. Mr. England shares Dr. Volarich's belief that Claimant is totally disabled from a vocational standpoint.

I find credible the uncontested expert medical and vocational opinions from Dr. David Volarich and Mr. James England that Claimant is unable to compete for work in the open labor market following the November 19, 2014, left elbow injury. As detailed by Dr. Volarich and Mr. England, the Claimant's disability referable to the numerous preexisting injuries/conditions are critical components of Claimant's permanent total disability. I find that Claimant reached maximum medical improvement on January 12, 2015. Following his release from treatment, Claimant had an unsuccessful attempt to return to work. Despite his desire to continue to work for Employer, the effects from the combination of his injuries forced him to finally quit in May 2015. Although Claimant worked for a brief period after he was placed at MMI. I find Claimant became permanently and totally disabled beginning January 13, 2015. ${ }^{1}$

I do not find that any employer reasonably would be expected to hire Claimant, given his present physical condition, age, and lack of transferable skills. I conclude that Claimant would not have been rendered permanently and totally disabled but for the combination of disabilities attributable to his preexisting injuries/conditions and his primary work-related injury. As such, it is found that Claimant is permanently and totally disabled as a result of the combination of his injury of November 19, 2014, and his preexisting conditions. The Second Injury Fund is liable for permanent and total disability benefits.

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[^0]: ${ }^{1}$ Employer's liability for permanent partial disability benefits is 15 % PPD of the left elbow, or 31.5 weeks of disability. Claimant's date of maximum medical improvement is January 12, 2015. Employer's responsibility for permanent partial disability begins January 13, 2015, and runs through August 17, 2015. The SIF is responsible for the pay differential between January 13, 2015, and August 17, 2015. The SIF is liable for full PTD benefits beginning August 18, 2015.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning January 13, 2015, at the differential rate of $\ 410.02 for 31.5 weeks, and thereafter at the stipulated weekly permanent total disability rate of $\ 861.04. The weekly payments shall continue for Claimant's lifetime or until modified by law.

This award is subject to a lien in favor of James S. Haupt, Attorney at Law, in the amount of 25 % for necessary legal services rendered. Any past due compensation shall bear interest as provided by law.

Made by: $\qquad$

Lorne J. Baker

Administrative Law Judge

Division of Workers' Compensation