Employee pursues this claim against the Second Injury Fund premised on the argument his May 29, 2008 work injury combined with his preexisting conditions of ill-being, including injuries to both feet, injuries to his left knee, bilateral shoulder pain, and an injury to his right leg, to establish permanent total disability.
The administrative law judge denied the claim based on a finding that employee is permanently and totally disabled as a result of subsequent worsening of employee's condition, including carpal tunnel issues, foot surgeries, knee surgeries and replacement, removal of the bursa from the left elbow, surgery to employee's right shoulder, four angioplasties, injuries to the left hand, arthritis in the right knee, treatment for coronary artery disease, treatment for varicose veins, and two heart attacks.
We agree with the administrative law judge that employee's evidence is not supportive of a finding he is permanently and totally disabled owing to the combination of his preexisting conditions and the primary injury because employee's evidence identifies subsequent worsening of employee's preexisting conditions as primary factors in employee's inability to work.¹ For example, employee's testimony supported a finding
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¹ Employee makes a point to contest a statement by the administrative law judge that employee's "cardiac condition ... has deteriorated significantly since 2008." Award, page 7. Employee points out that the record does not support a finding that his heart condition has deteriorated. Employee's argument is misplaced. The administrative law judge's entire sentence shows that the administrative law judge did not intend to imply that employee's heart condition deteriorated, but that employee's overall condition deteriorated. The entire sentence states as follows, "[employee] testified at his deposition and at trial that he believes he is incapable of employment due to his current condition, which is inclusive of surgeries to the right shoulder and left knee post May 29, 2008, as well as his cardiac condition which has
Injury No.: 08-077068
Employee: Roy Schenewerk
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of permanent total disability that was the combined result of pre-existing conditions, the May 29, 2008 accident, and subsequent worsening of his condition. See Transcript, pages 58-60. In addition, the only expert medical evidence in support of a claim for permanent total disability is Dr. Snyder's May 5, 2016 Independent Medical Evaluation. It is clear that Dr. Snyder's permanent total disability opinion on May 5, 2016, includes subsequent worsening of employee's condition after the date of maximum medical improvement.
Parties stipulate that claimant's maximum medical improvement was achieved on September 2, 2009. It is incumbent on employee to advance evidence sufficient to permit us to evaluate the nature and extent of his permanent disability on that date. The record does not contain any medical opinion or employee testimony that addresses or describes employee's ability to compete in the open labor market as of the date of maximum medical improvement. There is no opinion regarding the levels of permanent partial disability existing as of the date of maximum medical improvement, and no real description of employee's symptoms and limitations as of the date of maximum medical improvement.
Just prior to the maximum medical improvement date, Dr. Snyder concluded on June 10, 2009 that employee "qualifies" for disability. Transcript, page 122. The opinion that one qualifies to apply for disability does not establish that employee was not able to compete in the open labor market. Furthermore, employee acknowledges in his brief that Dr. Snyder did not actually find employee disabled until after employee's 2010 and 2015 heart surgeries. Brief of Petitioner, page 7.
We agree that employee is not permanently and totally disabled as a result of his primary injury and his preexisting conditions.
Synergistic Effect-Permanent Partial Disability
We note that the administrative law judge did not address the issue of whether the Second Injury Fund is liable for permanent partial disability benefits; accordingly, we discern a need to briefly address same.
The credible and convincing evidence does not establish that there was the required synergy between the primary injury and the pre-existing conditions to establish Second Injury Fund liability. Ordinarily, where an employee demonstrates multiple disabling conditions affecting the bilateral upper and lower extremities, it would appear an award of permanent partial disability against the Second Injury Fund would be warranted.
deteriorated significantly since 2008." We find that employee's overall condition has deteriorated significantly since 2008 and that employee's current condition includes post May 29, 2008 surgeries to the right shoulder and left knee and employee's cardiac condition.
2 In his brief, employee argues a synergistic effect because Dr. Snyder concluded on June 10, 2009, that employee "qualifies" for disability. Brief of Petitioner, page 10; Transcript page 122. The opinion that one qualifies to apply for disability does not establish a synergistic effect between the preexisting conditions and the primary injury.
Injury No.: 08-077068
Employee: Roy Schenewerk
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The Second Injury Fund only has liability in certain cases of permanent disability where there is a preexisting disability. § 287.220.2, RSMo. See *Winingear v. Treasurer of State-Custodian 2nd Injury Fund*, 474 S.W.3d 203, 207 (Mo. App. 2015); *Lewis v. Treasurer of State*, 435 S.W.3d 144, 152 (Mo. App. 2014). After proving a preexisting permanent partial disability and a compensable injury that resulted in a permanent partial disability, an employee must also prove a synergistic effect between the two disabilities. *Winingear*, 474 S.W.3d at 207 (citing *Hoven v. Treasurer of State*, *Custodian of Second Injury Fund*, 414 S.W.3d 676, 678 (Mo. App. 2013)).
"If an employee 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." *Winingear*, 474 S.W.3d at 207-08 (citing *Treasurer of State-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 467 (Mo. banc 2013)).
"Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability." *Winingear*, 474 S.W.3d at 207-08 (citing *Calvert v. Treasurer of State*, 417 S.W.3d 299, 314 (Mo. App. 2013)).
Dr. Snyder's May 5, 2016 Independent Medical Evaluation does not address any synergistic effect between the primary injury and his preexisting conditions. Dr. Snyder's 2016 evaluation also included employee's worsening conditions since the primary injury. Progress notes from Dr. Snyder also do not show a synergistic effect.
In a September 3, 2008 progress note, Dr. Snyder described partial tears in employee's left shoulder, as found in a 2006 MRI. Dr. Snyder continued his progress note by stating that employee's "MRI from June of 2008 after his motor vehicle accident shows essentially the same partial tears and significant inflammation and irritation of the musculature of the subacromial bursa." *Transcript*, page 118. Instead of describing a synergistic effect, Dr. Snyder stated that the 2008 accident "exacerbated an underlying condition" and that employee "also has probably extended the partial tear somewhat and caused trauma and inflammation in the area ..." *Transcript*, page 118.
Similarly, Dr. Snyder did not describe a synergistic effect when he stated in his January 5, 2009, progress note that employee was functioning and doing fine. Dr. Snyder further wrote, "In my opinion, the motor vehicle accident that occurred while at work propagated the tear and has caused his symptoms." *Transcript*, page 120.
At most from Dr. Snyder's progress notes, we have opinions that the accident "exacerbated an underlying condition" and "propagated the tear" that already existed in employee's left shoulder. These opinions indicate a worsening of employee's left shoulder due to the accident, but do not indicate a synergistic effect that created a result greater than the sum of the preexisting condition and the primary injury.