Jason Harrington v. Fordyce Concrete

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 13-087679

**Employee:** Jason Harrington

**Employer:** Fordyce Concrete (settled)

**Insurer:** Self-Insured

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the amended award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the amended award and decision of the administrative law judge with this supplemental opinion.

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).

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 administrative law judge that employee established that 1) he had a preexisting injury that constituted a hindrance or obstacle to employment or to obtaining reemployment; 2) he had a 20% permanent partial disability related to his right knee from his

Injury No.: 13-087679

Employee: Jason Harrington

-2-

primary injury; and 3) employee was permanently and totally disabled due to the combination of the two injuries.

The administrative law judge also found that the "pre-existing disabilities combined with the work-related accident of November 18, 2013[,] to create a synergistic effect of greater overall disability resulting in permanent, total disability." Award, p. 12. However, pursuant to § 287.220 RSMo, synergy is not an element to finding permanent total disability. Synergy is only an element for establishing permanent partial disability.

"The Fund is liable where a claimant establishes either [1] that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability or [2] the combination of his present compensable injury and his preexisting permanent partial disabilities create a greater overall disability than the sum of the disabilities independently. Lewis, 435 S.W.3d at 152 (emphasis and numbering added) (citing Highley v. Von Weise Gear, 247 S.W.3d 52, 55 (Mo. App. E.D. 2008); Elrod v. Treas. of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717-18 (Mo. banc 2004)).

With this clarification that the finding of synergy was not required in this matter, we affirm the amended award.

**Conclusion**

We affirm and adopt the amended award of the administrative law judge as supplemented herein.

The amended award and decision of Administrative Law Judge Angela C. Heffner is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 30th day of May 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornelo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

Employee: Jason Harrington

Injury No. 13-087679

Employer: Fordyce Concrete (settled)

Self-Insured: Fordyce Concrete (settled)

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Date: June 19, 2018

Checked by: $\mathrm{ACH} / \mathrm{lh}$

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 18, 2013
5. State location where accident occurred or occupational disease was contracted: Claycomo, Clay County, 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: While in the course and scope of his employment, Employee was stepping down from a ladder when he stepped in a hole causing his right knee to twist.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: right knee

1. Nature and extent of any permanent disability: 20% permanent partial disability of the right knee against the Employer (previously settled). Permanent total disability against the Second Injury Fund.

1. Compensation paid to-date for temporary disability: $607.10

1. Value necessary medical aid paid to date by employer/insurer? $20,928.12

1. Value necessary medical aid not furnished by employer/insurer? None

1. Weekly compensation rate: 607.10 for temporary and permanent total disability and 446.85 for permanent partial disability

1. Method wages computation: By stipulation

1. Amount of compensation payable:

The Second Injury Fund shall pay permanent total disability benefits of $160.25 per week for 32 weeks beginning June 6, 2014, and thereafter, to pay permanent total disability benefits of $607.10 per week for Claimant's lifetime.

Future requirements awarded: None.

The compensation awarded to Mr. Harrington shall be subject to a twenty-five percent (25%) lien of the benefits due and owing and 25% of each weekly benefit paid thereafter in favor of Rice & Associates, P.C., for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

On June 19, 2018, the Employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110 RSMo. The Employee, Jason Harrington (Claimant or Employee), appeared in person and with counsel, John Redmond. Second Injury Fund ("Fund") appeared by and through its counsel, Assistant Attorney General Alexandra Alpough.

On July 26, 2018, Claimant filed Employee's Motion to Allow the Corrected/Amended Report (Now Marked "Exhibit CC") of Dr. William Hopkins to be Admitted Into Evidence and/or Employee's Application for a Continuance Granting Employee Leave to File Corrected/Amended Exhibit CC. The Second Injury Fund filed its Objection to Employee's Motion for Admission of Amended Report on July 26, 2018. Claimant filed Employee's Response to Second Injury Fund's Objection to Employee's Motion for Admission into Evidence of Dr. Hopkins' Corrected/Amended Report (Amended "Exhibit CC") and/or Employee's Application for a Continuance Granting Leave to File a Corrected/Amended Exhibit CC on July 27, 2018. Employee's Motion to Allow the Corrected/Amended Report (Now Marked "Exhibit CC") of Dr. William Hopkins to be Admitted Into Evidence and/or Employee's Application for a Continuance Granting Employee Leave to File Corrected/Amended Exhibit CC is denied.

For the reasons noted below, I find the Second Injury Fund is liable to Claimant for permanent total disability compensation and, therefore, award him permanent total disability benefits from the Second Injury Fund.

The parties stipulated that:

1. On or about November 18, 2013, Fordyce Concrete Company was an employer operating subject to Missouri's Workers' Compensation law;
2. Jason Harrington was its employee working subject to the law in Claycomo, Clay County, Missouri;

[^1] [^0]: Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

1. Mr. Harrington notified the Employer of his injury and filed his claim within the time allowed by law;
2. Mr. Harrington's weekly compensation rate of 607.10 for permanent and temporary total disability, and 446.85 for permanent partial disability;
3. The Employer provided Mr. Harrington with medical care costing 20,928.12;
4. Employer paid 607.10 in temporary total disability benefits; and
5. If a finding of permanent total disability is made, the commencement date for permanent total disability benefits is June 6, 2014.

ISSUES

The parties requested the Division to determine:

1. Whether the Second Injury Fund is liable to the employee for any disability compensation.

FINDINGS OF FACT

Mr. Harrington testified on his own behalf, and offered the following Exhibits, which were admitted into evidence without objection:

CLAIMANT'S EXHIBITS:

A Injury No. 13-087679 Amended Claim for Compensation

B Attorney Contract, 11/20/14

C Second Injury Fund's Answer to Claim for Compensation

D Section 287.440 RSMo. 2017

E Application for Hearing filed in Kansas, Docket No. 1,072,011

F Pretrial Stipulations, 4/15/15

G 1/4/16 Award denying jurisdiction of Kansas claim

H US HealthWorks Medical record, 11/21/13

I MRI of right knee, 12/30/13

J Medical records of Dr. Thomas Samuelson, M.D., 1/20/14 to 6/6/14

K 2/4/14 operative report of Dr. Samuelson

L 12/23/14 medical report of Dr. William O. Hopkins, M.D.

M Employer/Insurer's Stipulation, Injury No. 13-087679,

N Medical records of George Robinson, M.D., 9/23/10, 9/27/10 & 10/11/10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

O Providence Medical Center Sleep Study, 4/6/11

P United Medical Group medical records, 8/2/11 to 1/19/12 (Gout)

Q Nephrology Associates medical records, 5/1/12 to 2/26/15 (Kidney)

R Shawnee Mission Medical records, 3/26/15 (Dialysis)

S Shawnee Mission Medical records, 5/11/15 (Dialysis)

T Shawnee Mission Medical records, 8/4/15 (Dialysis)

U Shawnee Mission Medical records, 8/31/15 (Dialysis)

V Shawnee Mission Medical records, 9/1/15 (Dialysis)

W Shawnee Mission Medical records, 9/2/15 (Dialysis)

X Bariatric Center records, 10/20/15

Y K.C. Pulmonary Associates medical records, 11/13/15

Z Clinical Cardiovascular Associates records, 2/12/16 to 2/16/16

AA Shawnee Mission Medical Center records, bariatric surgery, 4/5/16

BB 12/8/16 report of William O. Hopkins, M.D.

CC 10/23/17 report of William O. Hopkins, M.D.

DD CV of William O. Hopkins, M.D.

EE 10/10/17 deposition of Terry Cordray with exhibits

FF Social Security Administration Notice of Award, 8/9/15

The Second Injury Fund offered the following exhibits, which were admitted into evidence without objection.

Second Injury Fund's EXHIBITS:

1 Deposition of Claimant,

2 7/18/17 report of Dr. Capling

Based on the above exhibits and the testimony of the witnesses, I make the following findings. Mr. Harrington is a 41-year-old male. He is a high school graduate and attended some college courses but did not graduate from college. Claimant has no vocational training. Mr. Harrington has had a Class "A" commercial driver's license with airbrake endorsement since 1999. He still has a valid CDL that he is unable to use because he cannot qualify for a DOT card due to his kidney condition and dialysis treatment he is currently undergoing. Mr. Harrington has worked briefly as a customer service representative; however, his primary form of employment has been as a truck driver.

Mr. Harrington testified that he began his employment as a cement truck driver with Fordyce Concrete in 2006 and continued his employment until he was injured on November 18, 2013. As a cement truck driver, Claimant was required to walk around the truck, check fluids and climb up and down the ladder on the truck many times during a shift to ensure the cement was mixing properly. He testified that he was in and out of his truck and went up and down stairs

5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

frequently. On November 18, 2013, Claimant was stepping off of a ladder and stepped in a hole when his right knee twisted and he fell to the ground. He felt immediate pain in his right knee.

Claimant was initially treated at U.S. HealthWorks and was diagnosed with a sprain of the right knee. He was released to return to work with restrictions. An MRI of the right knee was performed on December 30, 2013 and revealed a tear of the medial meniscus. Dr. Thomas Samuelson performed an arthroscopic repair of this right medial and lateral meniscus. Claimant completed a physical therapy program following his surgery. On April 23, 2014, Dr. Samuelson released Claimant to return to full work duties without restriction. Claimant returned to the same position he held before his work accident and was able to successfully complete all of his required duties. Employer and Employee reached a compromise settlement, which reflects 20% permanent partial disability to his right knee.

Claimant testified that he continued to work as a cement truck driver for Employer until March of 2015 when Employer terminated him because he could not pass the physical examination required to obtain a DOT license. Claimant testified that the reason he could not pass the physical was because he was undergoing dialysis treatment for his kidney condition. Following his termination as a cement truck driver with Employer, Claimant applied for a dispatch position that was vacant with Employer. Claimant testified that he believed he was qualified for the position but Employer never contacted him for an interview.

Prior to the November 18, 2013 work injury, Mr. Harrington had pre-existing injuries. In 1994, Claimant injured his left knee while playing football resulting in a torn MCL, ACL and dislocation of his left knee. Due to this injury, Claimant had surgery to repair the left knee but continued to have pain in it. In 2010, He went to Dr. George Robinson because he was experiencing constant pain in his left knee. An MRI at that time revealed a possible medial meniscus tear but Dr. Robinson did not think Claimant would have improvement following another surgery. Dr. Robinson suggested that Claimant find another job to maintain his knee for as long as he could before he required a knee replacement.

Claimant was diagnosed with kidney disease in 2007 and began treating with medicine. He testified that everything was working properly at that time and it did not affect him. His kidney disease worsened at the end of 2014 and his medication was changed. By February 26, 2015, his kidney disease was much worse and he began dialysis in March 2015. Claimant stated to the doctor that he could not understand how his renal function declined so quickly when he felt so good. (Ex. Q, p.13)

Currently, Claimant undergoes dialysis treatment every Monday, Wednesday and Friday from 7:30 am until 1 pm. On the days of his dialysis treatment, Claimant does not feel well enough to go to a job. He cannot predict how he will feel on the days he does not have dialysis treatment and sometimes feels very sick. When he began dialysis, he applied for Social Security Disability and was granted the benefit. Claimant is working toward being placed on the donor list and testified that if he gets a transplant, he will no longer receive Social Security Disability benefits.

Claimant was diagnosed with gout in 2011. He testified that the gout could affect any of his joints. He treats the condition with medication but it is not always effective.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

Claimant underwent a sleep study in 2011 and was diagnosed with sleep apnea and prescribed a CPAP unit that he uses nightly.

Mr. Harrington testified he had constant pain in his left knee and felt pain with every step. Sitting too long is painful. Claimant testified that nothing could be done to make his left knee feel 100% again. Prior to the primary injury, Mr. Harrington testified that he had tried to learn to play golf but that he could no longer play golf due to his left knee. He was also unable to continue playing softball because he could not run the bases. He often went hunting and fishing prior to the primary injury but those activities are too difficult now.

At the direction of Claimant's counsel, Dr. Hopkins evaluated Mr. Harrington on December 8, 2016 for an independent medical examination. Dr. Hopkins believed Mr. Harrington suffered an injury to his left knee resulting in a surgical repair of his left anterior cruciate ligament and meniscus. Dr. Hopkins felt Mr. Harrington had suffered a 35% permanent partial disability to his left knee as a result of that injury.

Dr. Hopkins opined that Mr. Harrington is currently in renal failure and requires dialysis treatments three days a week. As a result, he opined that Claimant's kidney disease results in a 70% permanent partial disability to his body as a whole.

In addition, Dr. Hopkins believes Claimant has a 5% permanent partial disability to his body as a whole as a result of gout and the medications he takes to treat this condition.

Dr. Hopkins felt there was a significant synergistic effect of overall greater disability when one combined the pre-existing disabilities with the primary work injury resulting in permanent total disability.

Dr. Hopkins assigned permanent restrictions to Mr. Harrington due to his bilateral knee disabilities of no standing or walking for more than 30. No stairs, ladders or inclines as a part of his work day or lifting more than 15 pounds occasionally.

On October 23, 2017, Dr. Hopkins prepared a third report after he reviewed additional records including Mr. Cordray's February 28, 2017 and September 26, 2017 reports and Dr. Capling's report. Dr. Hopkins concludes, "I believe that Mr. Harrington is permanently and totally disabled on the basis of his bilateral end stage arthritis in both eyes... Certainly his comorbidities add to that disability but again I believe that his knee injuries are in themselves responsible for a permanent work incurred disability." 2 emphasis added (Ex. CC)

2 On July 26, 2018, Claimant filed Employee's Motion to Allow the Corrected/Amended Report (Now Marked "Exhibit CC") of Dr. William Hopkins to be Admitted Into Evidence and/or Employee's Application for a Continuance Granting Employee Leave to File Corrected/Amended Exhibit CC. The Second Injury Fund filed its Objection to Employee's Motion for Admission of Amended Report on July 26, 2018. Claimant sought to replace Ex. CC that was admitted into evidence without objection at hearing with a new version of the same document with two corrected typographical errors. The Court denied Employee's Motion to Allow the Corrected/Amended Report (Now Marked "Exhibit CC") of Dr. William Hopkins to be Admitted Into Evidence and/or Employee's Application for a Continuance Granting

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

At the Second Injury Fund's request, Dr. Richard Capling reviewed Claimant's records. Dr. Capling did not find any evidence in the records that the primary injury influenced his loss of kidney function. He notes that after the primary injury, Claimant progressed to end stage renal disease and required dialysis to replace his kidney function. Dr. Capling does not believe Claimant's employment would have been limited by his kidney disease prior to his November 18, 2013 injury at work. "In other words, prior to his injury on 11/18/2013, there was no chronic kidney disease reason why he would not pass his DOT physical." (SIF Ex. 2) Dr. Capling states that Claimant is receiving dialysis to keep him alive but it will not cure his kidney disease. "Even with the best forms of renal replacement therapy being renal transplantation, I think it would be unrealistic to believe that this would allow him to return to his previous career field." (SIF Ex. 2)

Vocational expert Terry Cordray evaluated Mr. Harrington on January 26, 2017. Mr. Cordray concluded prior to November 18, 2013, Mr. Harrington had the following vocational profile:

> Mr. Harrington will be considered a high school graduate. His commercial driver's license is not useful in a job, as he cannot pass a medical clearance. His lack of any vocational or academic training for sedentary types of jobs will have a significant limiting effect upon his ability to find work given his current physical limitations.

Once Claimant began receiving dialysis, he was terminated from his job as a cement truck driver. Claimant applied for a dispatcher position at Fordyce Concrete but was not interviewed for the position. Mr. Cordray concludes, "[g]iven the fact that he is now receiving dialysis four hours a day, three days a week, he cannot maintain a regular work schedule and, therefore has not applied for other jobs." (Ex. EE)

Mr. Cordray opined when Claimant's right knee injury in combination with this prior left knee injury are considered, that Claimant would be at a sedentary physical demand category, and with no computer skills from his previous employment, he would be as an unskilled worker, vocationally disabled.

Mr. Cordray met with Claimant a second time on September 26, 2017. At the time of that meeting, he also had a copy of Dr. Hopkins' December 8, 2016 report and Dr. Capling's July 18, 2017 report. After a review of these additional medical reports, Mr. Cordray's original conclusion did not change.

Mr. Cordray notes in the September 26, 2017 report that Employer would not consider Claimant for the dispatch position, which is a sedentary position, resulted in Mr. Cordray feeling even stronger in his opinion that it would not be realistic to believe that any other employer in Employee Leave to File Corrected/Amended Exhibit CC. When reading Dr. Hopkins three reports and the entirety of the evidence in this hearing, it is clear that the Claimant's bi-lateral knee disabilities are at issue. In Ex. CC, Dr. Hopkins refers to the Claimant's bi-lateral knees multiple times in his report. There is no other reference to the Claimant's eyes or any related disability to his eyes in the record.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

the usual course of business hiring individuals to perform work as it is customarily performed would accommodate Mr. Harrington given his lack of clerical skills, education level and physical restrictions. Mr. Cordray opines:

Therefore, my opinion is that Mr. Harrington is disabled as a result of his current and pre-existing conditions. However, his dialysis, diabetes, gout, and obesity are not factors in his total vocational disability. His disability is as a result of the combination of the right and left knee injuries.

The Second Injury Fund did not submit any evidence from a vocational expert.

RULINGS OF LAW

Second Injury Fund Liability

The first issue to be resolved by the Court is whether the Second Injury Fund is liable to the employee for any disability compensation.

Section 287.020.6 RSMo. defines total disability as the inability to return to any employment and not merely to return to the employment in which the employee was engaged at the time of the accident. The terms "any employment" mean "any reasonable or normal employment or occupation." *Fletcher v. Second Injury Fund*, 922 S.W.2d 402 (Mo.App. 1996); *Crum v. Sachs Electric*, 786 S.W.2d 131 (Mo.App. 1989); *Kowalski v. M-G Metals and Sales*, 631 S.W.2d 919 (Mo.App. 1992); *Groce v. Pyle*, 315 S.W.2d 482 (Mo.App. 1958). It is not necessary that an individual be completely inactive or inert in order to meet the statutory definition of permanent total disability. It is necessary, however, that the employee be unable to compete in the open labor market. See *Fletcher v. Second Injury Fund*, *Searcy v. McDonnell Douglas Aircraft*, 894 S.W.2d 1173 (Mo.App. 1995); *Reiner v. Treasurer*, 837 S.W.2d 363 (Mo.App. 1992); *Brown v. Treasurer*, 795 S.W.2d 478 (Mo.App. 1990).

Missouri courts have repeatedly held the test for determining permanent total disability is whether the individual is able to compete in the open labor market and whether an employer in the usual course of business would be reasonably expected to employ the employee in his present condition. *Sullivan v. Masters Jackson Paving Company*, 35 S.W.3d 879 (Mo.App.S.D. 2001). See *Garcia v. St. Louis County*, 916 S.W.2d 263 (Mo.App. 1995); *Lawrence v. RV-III School District*, 834 S.W.2d 789 (Mo.App.1992). Thus, a determination of permanent total disability focuses on the ability or inability of the employee to perform the usual duties of various employments in the manner that such duties are customarily performed by the average person engaged in such employment. *Gordon v. Tri-State Motor Transit*, 908 S.W.2d 849 (Mo.App. 1995). Even though a claimant might be able to work for brief periods of time or on a part-time basis it does not establish that they are employable. *Grgic v. P&G Construction*, 904 S.W.2d 464, 466 (Mo.App.1995). Courts have held various factors may be considered, including claimant's physical and mental condition, age, education, job experience and skills in making a determination as to whether the claimant is permanently, totally disabled. See *Tiller v. 166 Auto Auction*, 941 S.W.2d 863 (Mo.App. 1997); and *Olds v. Treasurer*, 864 S.W.2d (Mo.App. 1993).

MNKOI 0000811627

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

In order to establish Second Injury Fund liability for permanent, total disability benefits, Mr. Harrington must prove that: (1) he has permanent disability resulting from a compensable work-related injury; (2) he has permanent disability predating the compensable work-related injury which is of "such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the employee becomes unemployed," §287.220.1 RSMo. 1993; Garibay v. Treasurer, 930 S.W.2d 57 (Mo.App. 1996); Rose v. Treasurer, 899 S.W.2d 563 (Mo.App. 1995); Leutzinger v. Treasurer, 895 S.W.2d 591 (Mo.App. 1995); and Wuebbeling v. West County Drywall, 898 S.W.2d 615 (Mo.App. 1995); and, (3) the combined effect of the disability resulting from the work-related injury and the disability attributable to all conditions existing at the time the last injury was sustained results in permanent, total disability, Boring v. Treasurer, 947 S.W.2d 483 (Mo.App. 1997); Reiner v. Treasurer, 837 S.W.2d 152 (Mo.App. 1994).

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Stewart v. Johnson, 398 S.W.2d 850, 852 (Mo. 1966); Roller v. Treasurer of Mo., 935 S.W.2d 739, 741 (Mo.App.S.D. 1996). "Until that disability is determined, it is not known whether the Second Injury Fund has any liability . . . ." Stewart, 398 S.W.2d at 854. Accordingly, a claimant's pre-existing disabilities are irrelevant until employer's liability for the last injury is determined. Kizior v. Trans World Airlines, 5 S.W.3d 195, 201 (Mo.App.W.D. 1999); Roller, 935 S.W.2d at 743-44. 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.

The uncontroverted evidence is, and I so find, that Mr. Harrington suffered a work-related accident on November 18, 2013 that arose out of and in the course of his employment. I find Mr. Harrington sustained 20% permanent partial disability to the right knee. Regarding Mr. Harrington's pre-existing condition of his left knee, I find Mr. Harrington continued to suffer the permanent effects from this injury, which I find, combined with his primary injury to the right knee to create an overall synergistic effect. I find preponderance of the credible evidence proves that Mr. Harrington's pre-existing disabilities combined with the November 18, 2013 work-related accident to create a synergistic effect of greater overall disability resulting in permanent and total disability. Therefore, I find Mr. Harrington is entitled to permanent total disability benefits from the Second Injury Fund.

As discussed above, I find Mr. Harrington sustained 20% permanent partial disability to the right knee as a result of the November 18, 2013 accident claim. I further find Mr. Harrington is not permanently and totally disabled as a result of the November 18, 2013 accident. Accordingly, Mr. Harrington has satisfied the first element to establish his claim for permanent total disability against the Second Injury Fund.

The next element Mr. Harrington must establish is that he has permanent disability predating the compensable work-related injury which is of "such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment." As I previously outlined above, Mr. Harrington established this as well. The Second Injury Fund presented no evidence to dispute the Claimant or Dr. Hopkins' testimony or the vocational opinion of Mr. Cordray. Based on the testimony of Dr. Hopkins and Mr. Cordray, Mr. Harrington, and the medical records offered at the hearing, I find Mr. Harrington suffers from permanent disability predating

10

TI13881166

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

the compensable accident of November 18, 2013. I further find Mr. Harrington's pre-existing disability was of such seriousness as to constitute an obstacle or hindrance to his employment or reemployment as required by Missouri Law. As a result, I find Mr. Harrington has satisfied the second element required to establish permanent total disability against the Second Injury Fund.

The final element that Mr. Harrington needs to establish to successfully claim permanent total disability benefits from the Second Injury Fund is that the combined effect of the disability resulting from the November 18, 2013 accident and the disability attributable to all conditions existing at the time the last injury was sustained results in permanent total disability.

The evidence presented convinces me that Mr. Harrington is permanently, totally disabled due to the combined effect of the disability resulting from the November 18, 2013 accident and the disability attributable to his pre-existing condition. As a result, I find that Mr. Harrington has satisfied the final element needed to establish a claim for permanent total disability benefits against the Second Injury Fund.

The Second Injury Fund did not present any vocational evidence or testimony or witness to establish that Mr. Harrington was capable of competing for work in the open labor market. Dr. Capling testified "[e]ven with the best forms of renal replacement therapy being renal transplantation, I think it would be unrealistic to believe that this would allow him to return to his previous career field." (SIF Ex. 2) This opinion does not meet the legal standard of determining whether the individual is able to compete in the open labor market and whether an employer in the usual course of business would be reasonably expected to employ the employee in his present condition. Dr. Capling's opinion establishes that Claimant cannot return to work as a cement truck driver. It does not state that Claimant cannot compete in the open labor market and that no employer would be reasonably expected to employ Claimant in his present condition. Further, Dr. Capling's report addresses Claimant's kidney disease and its progression. It does not address the effect Claimant's bi-lateral knee injuries has on his employability or Dr. Hopkins and Mr. Cordray opinions that Claimant is permanently and totally disabled due to the combination of disabilities to his left and right knees.

The Court acknowledges Claimant's own testimony that he returned to work full-time in his prior position of cement truck driver after he was released at maximum medical improvement from the primary injury. And that he successfully maintained his employment for almost an entire year. Claimant also testified that Employer terminated him because he could no longer pass the DOT physical due to his kidney disease and dialysis which made him ineligible to work as a cement truck driver. Claimant is able to ride his bike for two to three miles, work out and go fishing which are all activities that are strenuous to your knees. Claimant has not applied for employment other than the dispatcher position because he does not believe any employer would hire him due to his dialysis schedule and how he feels. Claimant's own testimony conflicts with his experts as to the reason he is unable to work. However, the overwhelming evidence supports a finding of permanent, total disability based on Claimant's bi-lateral knee injuries. The Second Injury Fund did not present any contradictory medical or vocational evidence to dispute Dr. Hopkins' and Mr. Cordray's opinions.

11

TI1678-0001

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

The Court agrees with Dr. Hopkins and Mr. Cordray that Mr. Harrington is permanently and totally disabled. I find Mr. Harrington's pre-existing disabilities combined with the workrelated accident of November 18, 2013 to create a synergistic effect of greater overall disability resulting in permanent, total disability. I do not believe that any employer in the usual course of business would be reasonably expected to employ Mr. Harrington in his present condition.

Mr. Harrington proved that his disability from the accident of November 18, 2013 became permanent on June 6, 2014. Again, as noted earlier, he proved that he sustained 20\% permanent partial disability to the right knee from the accident he sustained stemming from the November 18, 2013 claim totaling 32 weeks of permanent partial disability. He proved the employer is liable for 32 weeks of permanent partial disability benefits at the rate of $\ 446.85 per week beginning on June 6, 2014. Mr. Harrington also proved the Second Injury Fund's liability for the differential of $\ 160.25. per week for 32 weeks. At the expiration of 32 weeks from June 6,2014 , the Fund is ordered to continue to pay Mr. Harrington permanent total disability benefits at the rate of $\ 607.10 per week for the remainder of Mr. Harrington's lifetime.

Mr. Harrington's counsel requested a fee equal to 25 % of all amounts awarded. I find this fee request to be fair and reasonable. Therefore, this Award shall be subject to a lien in favor of Rice \& Associates for reasonable and necessary attorney's fees pursuant to Mo. Rev. Stat. $\S 287.260 .1$.



Agela C. Heffner

Administrative Law Judge

Division of Workers' Compensation