The matter before us at this time involves a primary injury to employee's left shoulder on November 12, 2012. Employee² requested benefits from the Second Injury Fund based on two preexisting disabilities. The administrative law judge found synergy was proven regarding only one of those disabilities referable to the neck injury.
Pursuant to a Final Award of the Commission, employee was compensated for a 1999 work injury to his neck, resulting in cervical fusion at C-6/C-7 (Injury No. 99-177469). Employee and this same employer settled that claim for 35% permanent partial disability to the body as a whole referable to the neck. The Second Injury Fund appealed a ruling by the Commission in that matter finding the Fund liable for enhanced benefits on two bases, due to the employee's preexisting left eye blindness (non-work-related). The matter was appealed to the Court of Appeals for the Eastern District which upheld the finding of 30% enhanced permanent partial disability was generated from the synergistic interaction between employee's preexisting total blindness of his left eye in relation to the neck injury, pursuant to § 287.220 RSMo. The Court of
1 We do not address the broader doctrine of res judicata because we find that it is clearly not applicable. The doctrine prohibits a party from bringing a previously litigated claim. The claim before us now, involving a left shoulder injury occurring in 2012, has never been finally adjudicated. There was no identity of "the thing sued for," as required for the doctrine to apply. King General Contr. Inc. v Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo banc 1991). The neck injury of 1999 and the shoulder injury of 2012 do not both arise out of "the same act, contract, or transaction." Id. at 690.
2 We note that the record and the pleadings in this matter include references to both claimant and employee. We generally refer to the injured worker as "employee" and to anyone else pursuing a claim on behalf of the employee, as "claimant," because of the relevant definitions under § 287.020 RSMo. However, in this matter the terms are used interchangeably by the parties and the administrative law judge. We use the designation of "employee" throughout in the interest of consistency.
Injury No.: 12-098146
Employee: Thomas Pierson
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Appeals transferred the matter to the Missouri Supreme Court³ to address the issue of whether an additional 10% premium due to total loss of use of the left eye was enforceable against the Second Injury Fund under the statute, § 287.190.2 RSMo. A final award was rendered in 2004.
In the matter before us now, employee advances two theories relying on the final rulings in that earlier matter. First, that the permanent partial disability rating referable to the 1999 neck injury is presumed to continue undiminished under § 287.190.6 (1) RSMo. As correctly noted by the administrative law judge, that section of the law only applies where a "subsequent injury to the same member or same part of the body also results in permanent partial disability for which compensation under this chapter may be due..." Id. We find the administrative law judge properly ruled that the primary injury in this current claim was to a separate body part, (the left shoulder), and therefore, the permanent partial disability rating to the neck from the 1999 injury is not subject to any presumption of undiminished capacity in this proceeding.⁴
The second theory advanced by the employee was that the principle of res judicata (claim preclusion) or collateral estoppel (issue preclusion) applies here to prohibit the Second Injury Fund from relitigating issues related to the preexisting disabilities found in the 2004 final award. Those issues are:
(a) The disability rating to the neck; and
(b) The synergistic effect of the employee's preexisting left eye loss of sight in combination with the neck.
The relevant issue for our purposes in this case, was the permanent partial disability affecting the neck at the time of the November 12, 2012 primary injury (the left shoulder). For obvious reasons, that issue was not adjudicated in the earlier proceeding finalized in 2004⁵. The evidence before us on issue (a) - the disability rating of the prior neck injury, includes the fact that a prior adjudication established a rating of 35% in 2004, based on the evidence in that proceeding. The evidence in the case before us also includes the opinion of a single medical professional in 2014 as to that preexisting neck injury. The administrative law judge found the opinion of this expert, Dr. Woiteshek, to be persuasive. The doctor opined that the previous neck injury represented a 25% permanent partial disability. We are not convinced that this rating should be disturbed.
³ See Pierson v. Treasurer of Missouri, as Custodian of the Second Injury Fund, 126 S.W.3d 386 (S. Ct. 2004) The Supreme Court ruled the 10% premium for loss of use of the eye was not allowed under the statute (§ 287.190.2), as this provision applies only to the employer. The Court left the disability ratings and the synergy rating (neck to left eye) undisturbed.
⁴ We note employee's argument that the past disability rating was to the body as a whole, referable to the neck; and that this body as a whole disability is still binding. This term of art in workers' compensation is merely a reference to a "non-scheduled" injury, distinct from those addressed with a specific schedule of weeks denoting disability loss, under § 287.190.1 RSMo. Disability ratings for unscheduled body as a whole injures as applied to employer's liability are addressed under § 287.190.3.
⁵ The Commission's Award was in 2002; the Court of Appeals Decision was in 2003; the Supreme Court remanded to the Commission in 2004 to take action consistent with its rulings. For simplicity, we refer to "2004" final adjudication.
Injury No.: 12-098146
Employee: Thomas Pierson
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Issue (b) - the synergistic effect between the preexisting disabilities, was also an adjudicated finding from the 1999 injury case. Employee asserts the synergy rating of the 2004 final award, should bind the parties with regard to the current primary injury (the left shoulder). However, the 2004 award addresses the issue of the synergy generated between the loss of sight of the left eye to the neck injury. In order to apply the doctrine of collateral estoppel to preclude a party from relitigating an issue, several conditions must be met:
(1) The issue decided in the prior adjudication was identical with the issue presented in the present action; (2) the prior adjudication resulted in a judgement on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.
Xiaoyan Gu v. Da Hua Hu, 447 S.W.3d 680, at 686 (Mo. App. E.D. 2014)(internal citations omitted).
Regarding the issue of synergy between the left eye loss of sight and the left shoulder injury which is the subject of the present matter, point (1) is not met. The issue in the prior adjudication was not identical to that presented in this claim. All elements of the doctrine must coincide in order for it to apply. Since the analysis fails on the first point, we need not go any further. Nevertheless, we note that point (4) also is not met. The issue of the synergy between the present injury (the left shoulder) and the loss of sight in the left eye was not an issue that the parties had a full and fair opportunity to litigate in the prior suit, because the left shoulder injury of November 12, 2012, had not yet occurred.
There was little evidence in this matter on the level of synergy between the current primary injury of the left shoulder and the preexisting loss of sight in the left eye. We find the administrative law judge's evaluation of that evidence was supported. His weighing of the evidence included consideration of the employee's limited testimony on the issue. In the opinion of the administrative law judge, the evidence adduced only proved the synergy between the primary injury and the preexisting neck injury. The only medical opinion offered was in the form of a response to a hypothetical posed to Dr. Woiteshek about a connection between left eye blindness and its impact on his opinions. Dr. Woiteshek responded, "there could be more - more synergy." Transcript page 69. Employee's evidence did not clearly establish in what way the left eye preexisting disability synergistically enhanced his disability when combined with his left shoulder injury. Winingear v. Second Injury Fund, 474 S.W.3d 203 (Mo. App. 2015).
We base our decision on the evidence provided by the employee and his failure to prove how the preexisting left eye disability combined to create a higher level of disability with the left shoulder. We do not base our decision on the Second Injury Fund's argument that merely because it paid compensation for the synergistic effect between the prior neck injury and the preexisting left eye blindness disability, it should