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.
At the time of the work injury on August 10, 2011, employee was suffering from a number of preexisting permanent partially disabling conditions, including a learning disability; a severe frostbite injury to both feet that prevented employee from working for approximately one year and continues to limit his ability to work outdoors; type 2 diabetes with neuropathy affecting the lower extremities, which causes employee to experience pain and occasional instability while walking on hard surfaces; right knee pain referable to chondromalacia that requires employee to wear a brace and inhibits his ability to engage in deep knee bending, squatting, and climbing; degenerative disc disease affecting his cervical spine and resulting in some neck and left arm pain requiring a course of conservative treatment including injections; and prior low back complaints prompting employee to seek medical treatment, including at least one discrete injury event in 2005.
Employee's learning disability and functional illiteracy are of particular concern to us, given the persuasive expert opinion evidence (further discussed below) that these conditions considerably narrow the prospective jobs employee might be capable of performing. Accordingly, we supplement the administrative law judge's findings on this particular topic with our own findings, as follows.
Employee's academic career in the public school setting ended in the seventh grade when Fulton Junior High School expelled him because of severe behavior and learning problems. Thereafter, employee was admitted to Fulton State Hospital as an outpatient in 1971 and diagnosed with a learning disturbance. In 1972, he was admitted as an inpatient because of ongoing severe difficulties and behavior problems at school and at home. Employee's treatment as an inpatient at Fulton State Hospital included individual therapy sessions, prescription medication, and special education. Employee briefly escaped from the hospital, whereupon he was made a ward of the Juvenile Court and committed to (what was then known as) the Division of Mental Diseases. Academically, employee was functioning at only a fourth-grade level when released in 1974. Employee never returned to public school, never obtained a GED, and remains functionally illiterate.
In light of these circumstances, we are convinced that this is not a case such as Tiller v. 166 Auto Auction, 941 S.W.2d 863, 866 (Mo. App. 1997), where the court noted the general rule in Missouri that "[w]here illiteracy is not due to inability to learn, but to lack
Injury No.: 11-063860
Employee: Clifford Potts
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of education, it is not a permanent partial disability for Second Injury Fund purposes." Instead, we are convinced that employee's illiteracy and limited academic achievement are, indeed, referable to a learning disability, that this condition is permanent, and that this condition thus qualifies as a preexisting permanent partial disability for purposes of § 287.220 .
We turn now to the question whether employee's preexisting partially disabling conditions were serious enough to constitute hindrances or obstacles to employment. Our analysis is guided by the following test, as articulated by the Missouri courts:
[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).
Although we acknowledge the Second Injury Fund's position that employee's preexisting conditions cannot be deemed hindrances or obstacles to employment or reemployment because employee was able to successfully perform his job for employer for well over 30 years, it appears to us that this argument improperly asks us to focus on the extent to which employee's conditions caused difficulty in the past. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995). Applying the relevant test as identified by the Knisley court above, we find that each of employee's preexisting disabling conditions were hindrances or obstacles to employment or reemployment, because we are convinced that each had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of these preexisting conditions.
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).
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). If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. Id. After careful consideration, we are not persuaded to disturb the administrative law judge's findings that employee suffered permanent partial disability resulting from the work injury to the extent of 5 % of
the body as a whole referable to the neck, and 20 % of the body as a whole referable to the low back, and that the effects of the work injury, considered alone, do not render employee permanently and totally disabled. We turn now to the question whether employee is permanently and totally disabled as a result of the effects of the work injury in combination with his preexisting disabling conditions.
We note that the administrative law judge found "that the opinion of James England is correct, i.e., that [employee] is able to perform less demanding physical work such as retail sales, security work, cashier positions, light assembly, and packing jobs. Thus, I find that [employee] is able to compete in the open labor market, and that [employee] is not permanently and totally disabled." Award, page 14. While we generally agree with the administrative law judge that Mr. England provided credible and persuasive testimony in this matter, we disagree with the administrative law judge's analysis, for the following reasons.
First, we note that the above-quoted statement suggests the administrative law judge believed that the mere fact employee could perform certain jobs necessarily compelled a finding that employee could compete for such jobs in the open labor market. But, as the Missouri courts have consistently instructed, our inquiry does not end with identifying the particular jobs, if any, that employee might be able to perform given his physician-imposed restrictions and physical limitations; instead, we must consider whether the employee is reasonably likely to be hired for such positions:
The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.
Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011).
Second, we note that Mr. England ultimately did not opine that employee would be capable of performing the full gamut of jobs listed by the administrative law judge. Instead, at his deposition, Mr. England acknowledged that employee's poor academic history and illiteracy will significantly limit employee's ability to perform such jobs:
[T]hings like retail sales, security work, cashiering, light assembly packing, office cleaning, I mean those would be light types of jobs, but I think his learning disability and his inability to read would negate his ability to do some of these things because I - you know, I think assembly packing, office cleaning would still be options, but on the other hand, if you look at retail sales, security work, cashiering, those would be negated not by physical restriction but by his - his le