Anthony Davis v. Negri Plumbing

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No. 10-069808**

**Employee:** Anthony Davis

**Employer:** Negri Plumbing (settled)

**Insurer:** Netherlands Insurance Company (settled)

**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. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the following issues: (1) Did employee's preexisting condition of osteogenesis imperfecta constitute a hindrance or obstacle to employment for purposes of Second Injury Fund (SIF) liability; and (2) If so, is the SIF liable for permanent partial disability or permanent total disability.

In June 6, 2019, award, the administrative law judge made the following findings and conclusions:

- Employee was credible and worthy of belief.

- Employee sustained injury to his right knee as the result of the September 1, 2010, compensable injury. He settled his claim against employer for 45% permanent partial disability to his right knee plus consideration for future medical.

- Employee's preexisting osteogenesis imperfecta was not a hindrance or obstacle to his employment or reemployment prior to the September 1, 2010, injury and therefore did not constitute a preexisting permanent partial disability for purposes of SIF liability.¹

Employee filed a timely application for review with the Commission alleging the administrative law judge erred:

1. By determining that employee's preexisting osteogenesis imperfecta and deformed right ankle were not a hindrance or obstacle to his employment for SIF purposes, in that the administrative law judge

¹ In dicta, the administrative law judge opined that if employee's preexisting osteogenesis imperfecta was considered a hindrance or obstacle to his employment or reemployment prior to the September 1, 2010, injury that the credible and substantial evidence showed employee capable of obtaining employment in the open labor market and therefore he would have awarded only permanent partial disability benefits.

Injury No. 10-069808

Employee: Anthony Davis

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should have determined whether these preexisting disabilities had the potential to be a hindrance or obstacle to employment.

1. By finding there were no preexisting disabilities when the preponderance of the evidence established that the employee suffered fractured bones nearly thirty times, including while working and had physical and anatomical deformity to his right ankle caused by multiple fractures and that unrebutted expert medical testimony indicated that employee's osteogenesis imperfecta and deformed right ankle were preexisting disabilities that should have prevented employee from working at heights or from standing for prolonged periods, regardless of whether employee actually knew of or worked within those restrictions before his primary injury.

1. In finding employee capable of employment in the open labor market where employee's claim involved a complex medical issue and the only medical opinion regarding employability was from Dr. Swaim, who opined that employee was permanently and totally disabled; in failing to consider pain, the synergistic interaction of employee's prior and work related disabilities, job availability within the relevant geographic location and the fact that employee was unable to return to work for nearly nine years at the time of hearing.

We reverse the administrative law judge's award and decision concluding that the SIF has no liability in this matter.

Findings of Fact

Employee has osteogenesis imperfecta, a genetic disorder, diagnosed when he was a child. He sustained twenty-two different broken bones between the ages of nine month and twenty-eight years. In the 1980's employee underwent Missouri Vocational Rehabilitation due to his osteogenesis imperfecta. Employee's right leg and ankle show marked deformity due to fractures that occurred prior to the September 1, 2010, work injury.² Employee limited the types of work he chose to pursue due to his brittle bone condition. For example, employee avoided jobs that would require him to run or jump.

Despite his physical limitations, employee performed all aspects of his heavy labor job in the plumbing field between 1995 and 2010, including climbing on ladders and lifting up to 100 pounds. Employee missed no time from work due to his ankle and had no broken bones in the twenty years before his September 1, 2010, work injury. However, employee remained constantly vigilant and cautious regarding his right ankle. Employee's right leg hurt when he stood or walked a lot or did a lot of carrying at work.

On September 1, 2010, employee sustained injury in the course and scope of his employment, when he slipped on some garbage on a basement floor and his right knee

2 Claimant's Exhibits 22, 23 and 24, Transcript 703-705.

Injury No. 10-069808

Employee: Anthony Davis

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went out of socket.³ After the injury, employee underwent surgery on his right knee. Following the surgery, he attempted to return to his former work but was unable to build up to his regular duties due to problems with his right knee. Employee's right ankle condition has worsened since the injury to his right knee. Subsequent to the work injury, employee obtained employment as an apartment complex maintenance man, but was unable to maneuver steps and found the job required more walking than he was able to do. He worked at that job for only about three weeks. Employee has not attempted or applied for any other jobs since his injury. He is certain he cannot return to his plumbing job but uncertain if he could return to any other job.

Medical Expert Opinions

Dr. Truitt L. Swaim

Orthopedic surgeon Dr. Truitt L. Swaim examined employee on November 21, 2011. Dr. Swaim's nine-page report documented his review of employee's medical history records and physical examination. He made the following conclusions regarding employee's permanent disability:

The occupational injury of September 1, 2010, Mr. Davis sustained working for Negri Plumbing, caused or was the prevailing factor to cause him to develop a 50% permanent partial disability of the right leg at the 160 week level or 80 weeks, due to the right knee condition.

Mr. Davis had a 40% permanent partial disability of the right leg at the 160 week level or 64 weeks, due to the preexisting right knee, tibia, and ankle conditions.

Mr. Davis had a preexisting 20% permanent partial disability of the body as a whole or 80 weeks due to osteogenesis imperfecta.⁴

Dr. Swaim opined that combined effects of these disabilities rose to a level that created an enhancement of employee's overall disability and that employee's overall disability was enhanced by 9% of the body as a whole or 36 weeks.

Considering the severe disability related to employee's right leg condition, Dr. Swaim considered him permanently totally disabled from performing the essential duties of his previous occupation as a plumber. He further opined that employee was probably permanently and totally disabled, but acknowledged, "[A] vocational evaluation would be of benefit to determine if [employee] has transferable skills which will allow him to become gainfully employed.⁵

Dr. Swaim opined that employee should restrict occupational stresses to sedentary to light work, limiting his exertion of force to between ten and thirty pounds on an infrequent

³ On November 30, 2012, employee settled his claim against the employer and insurer for $30,000.00 based on approximate disability of 45% of the right knee at the 160-week level, plus a lump sum of 36,590.85 for future medical with yearly payments of 875.53.

⁴ Transcript, 489.

⁵ Id.

Injury No. 10-069808

Employee: Anthony Davis

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basis. He recommended that employee sit most of the time, have the ability to stand or walk for brief periods, avoid navigating uneven ground as well as climbing, repetitive stooping, twisting, squatting, kneeling, or crawling. He further recommended that employee significantly limit standing or walking.

Dr. John L. Putnam

On August 17, 2011, orthopedist Dr. John L. Putnam performed an independent medical examination of employee. His report of that date noted employee's past medical history as "Osteogenesis imperfecta type II". Dr. Putnam found employee's pathology consistent the mechanism of his workers' compensation injury, recommended life-long bracing and advised employee of the importance of avoiding any further injury due to his osteogenesis imperfecta.

Counsel for the SIF referenced a November 28, 2011 rating and restriction report of Dr. Putnam during her cross-examination of vocational expert Phil Eldred at hearing. Vocational expert James M. England also referenced Dr. Putnam's November 28, 2011, evaluation of employee in his December 12, 2012, vocational evaluation. The administrative law judge cited Dr. Putnam's November 28, 2011, report in his award. We note that the aforementioned report is not included in the Putnam Orthopaedic Center records admitted into evidence as Claimant's Exhibit 8 or any other exhibit produced at the hearing. That said, no party disputes that on November 28, 2011, Dr. Putnam rated employee at 10% permanent partial disability of the body as a whole and found employee capable of doing light deskwork with no working at heights, no climbing stairs, and no prolonged walking or standing.

Vocational Expert Opinions

Philip Eldred

Certified vocational rehabilitation counselor Phillip Eldred testified for employee at hearing. Mr. Eldred's March 9, 2018, vocational rehabilitation evaluation is also included in the record. Mr. Eldred based his evaluation on a review of employee's medical records and reports, interview and vocational testing of employee.

Mr. Eldred opined, based on his review of employee's medical records and Dr. Swaim's independent medical evaluation, that employee had an impairment which was vocationally disabling such as to constitute a hindrance or obstacle to employment before his September 1, 2010, work injury.

Addressing employee's functional capacity since his work injury, Mr. Eldred noted employee "stated that he doesn't believe that he can work as a plumber and doesn't know what he can do." Mr. Eldred's report noted that when completing a questionnaire

6 Transcript, 467.

7 Id. 840, excerpt from December 12, 2012 Vocational Rehabilitation Evaluation of James M. England.

8 Award, p. 11.

9 Claimant's Exhibit 8, Putnam Orthopaedic records, Transcript, 466.

10 Transcript, 840.

11 Id., 494.

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designed to measure employee's self-perception of his functional limitations, when asked to rate his ability to return to work, employee responded, "Do Not Know."12

Employee tested at the 11.7 grade equivalent in word reading and at the 12.9 grade equivalent on math computation. Employee's math computation score was higher than 81% of persons in his age group. Mr. Eldred found employee's worker trait profile comparable to eleven sedentary jobs "if employee had the physical and academic ability to be retrained."13 In spite of these noted strengths, Mr. Eldred concluded that employee is not only unable to return to his prior work as a plumber but is further unemployable in the open labor market because of his age, lack of transferable skills, and physical restrictions.

James M. England

The SIF produced the deposition and report of vocational rehabilitation counselor James M. England. On December 12, 2012, after reviewing employee's medical records and doctors' reports, employee's April 2012 deposition and Dr. Swaim's June 2012 deposition, Mr. England noted,

[Employee] indicated that his pain is not severe and is generally in the 1-3 range on a 1-10 scale. Nevertheless he reported inability to continue working as a plumber because of his discomfort. He said that he has trouble being up on his feet very long, but was not specific.

He is not taking any medication at all.

He indicated that Dr. Putnam was seen for a second opinion and advised him that he did not believe Anthony could go back to work as a plumber, but did not rule out other forms of employment. In fact, [employee] did not recall any doctor telling him that he was totally unable to do some type of alternative work.14

Mr. England considered employee's successful completion of a two-year electronics course as evidence that he has "good basic academic abilities with regard to reading and math."15 Noting that employee takes no pain medication and qualifies as a younger worker under U. S. Department of Labor Guidelines, Mr. England concluded:

Although [employee] is restricted to work in the sedentary to light range of exertion with the need to be off his feet most of the day, he is not restricted to the point that I believe he would be unemployable. To the contrary, I believe that using the knowledge and skill he has acquired in the past he would be an ideal candidate for an inside sales position dealing with plumbing materials and supplies. He could also perform customer service work and work as an alarm monitor provided that he acquired some basic

12 Id., 498.

13 Transcript, 506.

14 Id., 841.

15 Id., 842.

Injury No. 10-069808

Employee: Anthony Davis

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keyboarding skills. There would also be some cashiering positions he could perform such as in a parking garage type setting. 16

**Nature and Extent of Employee's Permanent Disability**

Based on Dr. Swaim's expert opinion, we find that the accident of September 1, 2010, was the prevailing factor causing employee to suffer 50% permanent partial disability to his right leg at the 160-week level, consisting of 80 weeks due to the right knee condition.

We credit Dr. Swaim's opinion that employee had preexisting disability due to his right knee, tibia, and ankle conditions consisting of 40% permanent partial disability of the right leg, consisting of 64 weeks, and 20% of the body as a whole, consisting of 80 weeks, due to osteogenesis imperfecta. Based on Dr. Swaim's opinion and employee's hearing testimony, we further find that employee's permanent partial disability from his work injury synergistically combined with his preexisting osteogenesis imperfecta to result in greater overall permanent partial disability than their simple sum.

We credit Mr. England's vocational assessment, which considered employee's medical history, educational background, vocational history, functional restrictions and limitations, including employee's self-perceived functional limitations. Ultimately, in light of this evidence we are not persuaded to render a finding that employee is permanently and totally disabled, whether as a result of the combined effects of the primary injury and his preexisting conditions of ill-being, or for any other reason. We find Mr. England's assessment finding that employee is capable of working in some capacity in the open market more credible and persuasive than Mr. Eldred's conclusion that employee is permanently and totally disabled from any employment in the open labor market.

**Conclusions of Law**

**Second Injury Fund Liability**

Section 287.220 RSMo creates the SIF and controls the assessment of SIF liability in "all cases of permanent disability where there has been previous disability." Section 287.220 provides as follows with respect to SIF liability for enhanced permanent partial disability benefits:

If any employee who has 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if

16 Id., 844.

Injury No. 10-069808

Employee: Anthony Davis

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a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

The administrative law judge found that *Loven v. Greene County*, 63 S.W.3d 278 (Mo. App. 2001), compels a finding that employee failed to prove that his preexisting osteogenesis imperfecta was a hindrance or obstacle to his employment for SIF purposes. We disagree.

In *Loven*, the court held that an employee's morbid obesity did not qualify as a preexisting disability for purposes of SIF liability. Employee testified that his obesity did not cause any hindrance or obstacle to employment and in fact was an asset in his work as an ironworker. The *Loven* court specifically noted that morbid obesity could qualify as a preexisting disability that would trigger SIF liability but found that the evidence in the record did not support such a factual finding in that case.

As we have found, in this case employee self-accommodated his osteogenesis imperfecta by avoiding jobs that presented certain physical risks, such as running or jumping. He proactively attempted to prevent further injury by vigilantly guarding his right leg, damaged and significantly deformed due to bone breaks prior to the work injury. Unlike *Loven*, there is no evidence that employee's osteogensis imperfecta was an asset to his employment.

*Loven* noted that the prior judicially established standard that required a preexisting "industrial disability," defined as a loss of earning capacity rather than physical impairment as such, was abrogated by the legislature's 1993 amendment to § 287.220.1 which added language requiring that a preexisting injury for purposes of SIF liability be "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining employment if the employee becomes unemployed." Under the new standard, courts have held the proper focus of the inquiry as to the nature of a prior disability 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

TI3661-0301

Injury No. 10-069808

Employee: Anthony Davis

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absence of the condition. Employee in this case has satisfied the explicit statutory requirement of demonstrating a preexisting permanent partial disability that constituted a potential hindrance or obstacle to employment. See *Loven*, 287.

As stated by the court in *Wuebbling v. West County Drywall*, 898 S.W.2d 615 (Mo. App. 1995), under the law that applies to this case, a preexisting disability need not be shown to have caused the employee to miss work or to have reduced his earnings to trigger SIF liability. Rather, the key is whether a preexisting disability would cause a prospective employer to discriminate in hiring. *Id.* 619, 620.

In *Knisley v. Charleswood Corp.*, 211 S.W.3d 629 (Mo. App. 2007), the court reiterated that the standard for determining SIF liability related to a preexisting condition 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 [emphasis added]." *Id.* 636, citing *Wuebbling v. West County Drywall*, 898 S.W.2d 615, 620 (Mo. App. E.D. 1995).

We conclude that employee has satisfied each of the statutory requirements for proving SIF liability for permanent partial disability benefits. We find that the administrative law judge's focus on employee's ability to work in a physically demanding job prior to his work injury, notwithstanding his known preexisting congenital disorder, as a matter of law, was incorrect.

As we have found, based on employee's testimony, his medical and vocational history, and Dr. Swaim's expert opinion, employee's preexisting condition of osteogenesis imperfecta constituted a significant potential impediment to his employability and affected his ability to compete for jobs prior to the date of the primary injury. We have further found, based on Dr. Swaim's opinion and employee's credible testimony, that there is a synergistic interaction between employee's preexisting disability and the primary injury of September 1, 2010, that results in greater permanent partial disability than the simple sum of the conditions. We deem a 20% synergy factor appropriate to account for this enhanced permanent partial disability.

Accordingly, we calculate the SIF's liability as follows: 144 weeks (40% preexisting permanent partial disability rated at the right leg rated at the 160-week level (64 weeks) + 20% permanent partial disability of the body as a whole referable to osteogenesis imperfecta (80 weeks)) + 80 weeks (50% permanent partial disability of the right leg at the 160 week level) = 224 weeks x the 20% load factor = 44.8 weeks of enhanced permanent partial disability. At the stipulated permanent partial disability rate of 418.58, the SIF is liable for 18,752.38 permanent partial disability benefits.

**Decision**

We reverse the award of the administrative law judge.

The Second Injury Fund is liable to employee for enhanced permanent partial disability benefits in the amount of $18,752.38.

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Employee: Anthony Davis

The award and decision of Administrative Law Judge Kevin A. Elmer, issued June 6, 2019, is attached solely for reference.

For necessary legal services rendered to employee, Randy Alberhasky, Attorney at Law, is allowed a fee of 25% of the compensation awarded, which shall constitute a lien on said compensation.

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

Given at Jefferson City, State of Missouri, this 14th day of January 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Secretary

Employee: Anthony Davis

I have reviewed the evidence, read the briefs of the parties, heard the parties' arguments, and considered the whole record. I have reviewed and considered all of the competent and substantial evidence on the whole record.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Anthony Davis

Injury No. 10-069808

Dependents: N/A

Employer: Negri Plumbing (settled)

Insurer: Netherlands Insurance Company (Settled)

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

Hearing Date: March 18, 2019

Checked by: KAE

1. Are any benefits awarded herein? No
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: September 1, 2010
5. State location where accident occurred or occupational disease was contracted: Howell County, MO
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 walking in a basement, slipped on some garbage, and his right knee went out of socket.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right knee
14. Nature and extent of any permanent disability: 45 % of the right knee at the 160 -week level
15. Compensation paid to-date for temporary disability: $\ 27,045.51
16. Value necessary medical aid paid to date by employer/insurer? $\ 70,329.95
17. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
18. Employee's average weekly wages: $\ 627.87

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

1. Weekly compensation rate: $418.58 (PPD/PTD/TTD)

1. Method wages computation: Agreement of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: 0.00

- Unpaid medical expenses: 0.00

- Weeks of temporary total disability (or temporary partial disability): 0

- Weeks of permanent partial disability from Employer/Insurer: 0

- Weeks of disfigurement from Employer/Insurer: 0

- Permanent total disability benefits from Employer beginning, for Claimant's lifetime: No

1. Second Injury Fund liability: None.

- Weeks of permanent partial disability from Second Injury Fund: 0

- Uninsured medical/death benefits: 0.00

- Permanent total disability benefits from Second Injury Fund: 0.00

**TOTAL: $0.00**

1. Future requirements awarded: $0.00

Page 2

Employee: Anthony Davis

Injury No. 10-069808

Dependents: N/A

Employer: Negri Plumbing (Settled)

Insurer: Netherlands Insurance Company (Settled)

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

Hearing Date: March 18, 2019

Checked by: KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on March 18, 2019. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about April 12, 2019.

The employee appeared personally and through his attorney, Randy Alberhasky. The employer and insurer did not appear, having previously settled their case. The Second Injury Fund appeared through its attorneys, Cara Lee Harris, Assistant Attorney General, and Andrew Shireman, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about September 1, 2010, Negri Pluınbing was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured.

(2) On the alleged injury date of September 1, 2010, Anthony Davis was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about September 1, 2010, the employee sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Howell County, Missouri. The parties agree to the venue lying in Greene County, Missouri, for purposes of this hearing. Venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

(7) At the time of the alleged accident of September 1, 2010, the employee's average weekly wage was 627.87, which is sufficient to allow a compensation rate of 418.58 for temporary total disability compensation/permanent total disability compensation, and a compensation rate of $418.58 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the employee in the amount of $27,045.51.

(9) The employer and insurer have provided medical treatment to the employee, having paid $70,329.95 in medical expenses.

(10) The employee reached maximum medical improvement on November 28, 2011.

The issues to be resolved by hearing include:

(1) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation.

EVIDENCE PRESENTED

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of Phillip Eldred. In addition, the employee offered for admission the following exhibits:

Exhibit 1........................................................ Burton Creek Rural Clinic, 45 pages

Exhibit 2........................................................ Burton Creek Rural Clinic, 2 pages

Exhibit 3........................................................ Hubbard Bone & joint Clinic, 2 pages

Exhibit 4........................................................ Ozarks Medical Center, 3 (sic) pages

Exhibit 5........................................................ Ozarks Medical Center, 5 pages

Exhibit 6........................................................ Ozarks Prosthetics & Orthotics, 16 pages

Exhibit 7........................................................ Physical Therapy Specialty Clinic, 147 pages

Exhibit 8........................................................ Putnam Orthopaedics, 3 pages

Exhibit 9........................................................ West Plains Ambulatory Surgery, 11 pages

Exhibit 10........................................................ Dr. Truett Swaim IME report

Exhibit 11........................................................ Phil Eldred report

Exhibit 12........................................................ Claim for Compensation

Exhibit 13........................................................ Answer from Second Injury Fund

Exhibit 14........................................................ Answer from Employer/Insurer

Exhibit 15........................................................ R.S.Mo $287.210 letter

Exhibit 16........................................................ R.S.Mo $287.210 letter

Exhibit 17........................................................ Medical Disclosure (Eldred report)

Exhibit 18........................................................ Medical Disclosure

Exhibit 19........................................................ Medical Disclosure

Exhibit 20........................................................ Deposition of Anthony Davis

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Exhibit 21 Deposition of Dr. Truett Swaim

Exhibit 22 Picture #1

Exhibit 23 Picture #2

Exhibit 24 Picture #3

Exhibit 25 History of Fractures

Exhibit 26 Stipulation for Compromise Settlement with Employer/Insurer

The exhibits were received and admitted into evidence.

The Second Injury Fund called no witnesses, but offered for admission the following exhibits:

Exhibit I Deposition of Anthony Davis

Exhibit II Deposition of James England

Exhibit II Work History Form Prepared for Phillip Eldred

The exhibits were received and admitted into evidence.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION

Background & Employment

The employee, Anthony Davis, is 56 years of age, having been born on September 19, 1962. Mr. Davis graduated from high school and has vocational training in plumbing and electronics. Subsequently, he has worked primarily in the fields of maintenance, construction, and plumbing.

Prior Medical Conditions

Prior to sustaining the work injury of September 1, 2010, Mr. Davis was diagnosed with osteogenesis imperfecta, also known as brittle bone disease. He was diagnosed with this condition as a young child, and throughout his youth and high school he sustained many broken bones due to this condition. Employee offered Exhibit 25, which lists the broken bones he has sustained throughout his lifetime. The list starts with a broken right tibia when he was 9 months of age in June 1963. The list includes 22 different broken bones sustained by Mr. Davis between the age of 9 months and when he was 28 years old in November 1990. Employee testified that between 1990 and the work injury of September 1, 2010, he had no broken bones.

Employee has no other pre-existing medical conditions other than the osteogenesis imperfecta. The most significant of Mr. Davis' prior fractures are three to his right lower leg and ankle. Mr. Davis offered pictures of his right lower leg and ankle, which show almost a bowing of the lower leg, a loss of muscle mass, and deformity where the ankle and foot join. Mr. Davis never had any surgery for any of his fractures prior to the work injury, including his right lower leg and ankle. Mr. Davis testified that at the time of a broken bone - all prior to him starting in the

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

plumbing field - he would miss time from work while the bone healed; however, he always returned to work. Mr. Davis testified that his parents encouraged him to go to Missouri Vocational Rehabilitation in the 1980s due to his osteogenesis imperfecta, which he did. He was sent for vocational training in electronics; however, he did not finish that training due to an ATV accident.

Mr. Davis testified that he worked in the plumbing field exclusively between 1995 and 2010. In performing his plumbing duties, he testified he had to crawl, dig ditches, carry large pieces of pipe, shovel gravel and dirt, climb ladders, and use sanders, jackhammers and concrete saws. Mr. Davis testified specifically that his right ankle, the most significant of his prior broken bones, never stopped him from doing anything in his plumbing jobs. He testified he was more vigilant and cautious regarding his right ankle, but he did all aspects of his job and never missed time from work due to the ankle.

Mr. Davis testified that he has some pain in his right lower leg and ankle which comes and goes. When he is on his feet more, the pain is worse. It is also made worse by certain weather conditions and more standing on ladders. Since Mr. Davis is no longer working, he testified the pain in his right lower leg and ankle is not as bad, but it will still hurt if he does a lot of walking.

On cross-examination by the Second Injury Fund, Mr. Davis testified that his osteogenesis imperfecta is "mild." He also testified that it has gotten better as an adult, as is evidenced by him having no broken bones in the 20 years before his September 1, 2010 work injury. He agreed he has never had any internal fixations, surgeries, or even been hospitalized for any of his broken bones. He testified the pain in his right ankle is very low and agreed in his deposition testimony that he had only "a little" pain in his right ankle after the last break to the ankle healed. He also agreed in his deposition testimony that his right ankle never caused him any problems in his construction jobs, even when he was working 12 hours on his feet or when he was doing plumbing; again, testifying he was on his feet most of the time "a lot of days." (Exhibit I, page 29). Mr. Davis testified he had some problems walking from the right ankle, however, nothing like what he has today due to his last injury.

Mr. Davis testified in his deposition and was questioned again at the hearing regarding any problems he had doing any plumbing or construction jobs. He testified all jobs were physically demanding, requiring him to lift up to 100 pounds, be in awkward positions and on his feet a lot, yet he never had any problems at all being able to do what he needed to do in any job due to his osteogenesis imperfecta or his right ankle. He testified in his deposition that his right ankle never prevented him from climbing stairs or ladders. He described his jobs as being physically demanding and testified he never felt that his osteogenesis imperfecta interfered at all with his ability to do his jobs. (Exhibit I, pages 26-37).

Accident

On September 1, 2010, while engaged in employment and performing his work duties with Negri Plumbing, Mr. Davis was working in a basement and slipped on some garbage, and his right knee went out of socket. Mr. Davis was able to get to his car and call his employer. As a result of this injury, Mr. Davis underwent surgery on his right knee on October 5, 2010. The surgery consisted of ACL reconstruction with internal fixation devices, a partial medial and lateral meniscectomy and chondroplasty of the patellofemoral joint and medial and lateral joint line.

Page 6

Following the surgery, Mr. Davis underwent a course of physical therapy and was prescribed a brace for his knee.

Following the surgery, Mr. Davis attempted to return to work for Negri Plumbing, but his knee continued to cause him problems. He did light work first and tried to build up to his regular duties but was unable to do so.

He wears a brace at times that holds his knee to keep it from sliding around. He has the most problems with uneven ground and currently only wears his brace when he knows he will be on uneven ground. Mr. Davis testified he can function on a level floor without his brace.

Mr. Davis testified he currently has problems with his right knee, in that it will "barely hold him up," he is unable to squat or carry any weight, and has problems on inclines and declines. He testified he can bear weight to stand and that he can stand up to 30 minutes and walk up to 30 minutes. If he steps funny, his right knee will go out of socket, so he concentrates on how he steps.

When asked about the effect of his right knee and right ankle, Mr. Davis testified he doesn't know if his right ankle problems make the knee any worse, but his right ankle is not what makes his right knee go out. He had no problems walking or standing like he has now prior to the September 1, 2010 injury to his right knee. He does not take any pain medication for anything, in part due to concern over substance abuse. He does not believe further treatment would be helpful for his knee. Mr. Davis testified that his right ankle has gotten worse since the injury to his right knee. He testified that sometimes now he has occasional swelling, popping, or weakness in his right ankle. He did not testify he had any of these problems in his right ankle prior to the September 1,2010 injury.

Following the September 1, 2010 injury, Mr. Davis obtained employment as a maintenance man at an apartment complex. The apartment complex was two stories, and he found it difficult to maneuver the steps and found the job required more walking than he was able to do. He worked there about three weeks. Mr. Davis testified that the job at the apartment complex is the only job he has attempted to do or even applied for since the injury of September 1, 2010.

Mr. Davis testified that currently his girlfriend helps with his shopping; however, he takes care of all of his own household chores. Since the injury of September 1, 2010, Mr. Davis has been fishing, going about three to four times in 2018. He testified that he elevates his right leg to help with discomfort typically sometime every day. Mr. Davis testified he is certain he cannot return back to his plumbing job; however, he is uncertain if he could return to any other job.

I found Mr. Davis' testimony, both at the hearing and in the deposition, to be credible and worthy of belief.

Phillip Eldred, Certified Rehabilitation Counselor, who evaluated Mr. Davis at his attorney's request, testified live at the hearing.

Mr. Eldred testified that based on his review of the records and restrictions and his interview with Mr. Davis, Mr. Davis is unemployable in the open labor market due to a combination of his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

pre-existing osteogenesis imperfecta and his work-related injury of September 1, 2010. He found Mr. Davis' pre-existing osteogenesis imperfecta to be a hindrance or obstacle to his employment. Mr. Eldred noted that Mr. Davis had prior problems with his right ankle and that "eight to ten years ago" Mr. Davis "started losing feeling in his fingers on both hands and now he fumbles with his hands." (Exhibit 11, page 2). Mr. Eldred admitted he saw nothing in the records regarding Mr. Davis having numbness in his fingers, and Mr. Davis did not testify that he had numbness in his deposition testimony, which is in evidence, or his testimony at hearing. Mr. Davis told Mr. Eldred his problems in order of severity include only his "right knee (constant pain)." (Exhibit 11, page 16).

On cross-examination by the Second Injury Fund, Mr. Eldred agreed he had no medical records regarding any treatment Mr. Davis received for any medical conditions prior to the September 1, 2010 injury. He also admitted he had no information from either Mr. Davis or any of the records he reviewed that Mr. Davis has ever had any problem obtaining or maintaining employment prior to his injury of September 1, 2010. He knew of no job Mr. Davis ever attempted to obtain which he was unable to do. He likewise knew of no problems Mr. Davis ever had in performing any of his past jobs and noted that when he left jobs, he did so going to other jobs in which he was paid more money.

Mr. Eldred testified regarding the Work History Form that he had Mr. Davis fill out as part of his evaluation. (SIF Exhibit III). He agreed that Mr. Davis stated on the form that at Negri Plumbing he lifted up to 150 pounds and worked 40 hours per week. Mr. Eldred testified that while on the form Mr. Davis indicated he stood, sat, and walked eight hours each in his job, he believes that is a mistake on Mr. Davis' part (as he only worked eight hours total in a day), and he further understood Mr. Davis' job at Negri Plumbing required him to be on his feet most of the time. Mr. Eldred agreed that as Mr. Davis described his job at Negri Plumbing, it would be a "very heavy" job as defined by the Dictionary of Occupational Titles ("DOT"). He further notes that Mr. Davis wrote about his job that he did "about anything there is to do with plumbing from below ground up, industrial, commercial and residential." Mr. Eldred noted that Mr. Davis' prior job at DeLong Plumbing was slightly less physically demanding in that he did commercial and residential service calls and lifting only 50 pounds there. Finally, Mr. Eldred testified it was his understanding that Mr. Davis was never accommodated in any fashion by any of his employers while working in the plumbing field.

Regarding Mr. Davis' most recent employment with the apartment complex, Mr. Eldred testified he understood no accommodations were made for Mr. Davis while working there. Mr. Eldred is unaware if Mr. Davis had any special connection in obtaining that employment and unaware if Mr. Davis has tried to get any other employment, specifically any less-demanding employment, since the September 1, 2010 injury.

Regarding the problems that Mr. Davis has which could impact his employability, Mr. Eldred noted that Mr. Davis has no problems with reaching or deskwork. Regarding Mr. Davis' ongoing pain complaints, Mr. Eldred noted that at its worst, the pain is a 6 on a 0-10 scale and at its best, a 1-2. He was aware that Mr. Davis testified in his deposition that his knee is "not extremely painful." (Exhibit I, page 45) He also testified that it is his understanding that prior to the injury of September 1, 2010, Mr. Davis had no pain on an ongoing basis. Mr. Eldred testified that no medical professional has stated that Mr. Davis needs to be able to alternate between sitting and standing throughout the day.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

Mr. Eldred relied on the restrictions placed on Mr. Davis as part of the basis for his opinions. He noted that Dr. Swaim placed restrictions on Mr. Davis and agreed that all of those restrictions have come about only since and because of the injury of September 1, 2010. He agreed that prior to the September 1, 2010 injury, Mr. Davis was capable of lifting anything he needed to, including weights up to 150 pounds; yet, following the September 1, 2010 injury, Dr. Swaim has limited Mr. Davis' lifting to only 10 pounds frequently and up to 30 pounds infrequently. Mr. Eldred also noted that Dr. Swaim stated Mr. Davis is restricted to sedentary to light work as defined by the DOT and should sit most of the time with the ability to stand or walk for brief periods of time. Mr. Eldred testified that he found Dr. Swaim's restrictions at the "less than sedentary work level to the sedentary work level" only because of the sit/stand part of Dr. Swaim's restrictions. Mr. Eldred, however, admitted there are jobs in the open labor market which have a sit/stand option and admitted that sedentary work is done, by definition, typically in a seated position, which Dr. Swaim testified Mr. Davis is capable of doing.

Mr. Eldred testified he missed the November 28, 2011 restriction of Dr. Putnam when he was reviewing records. He noted after reviewing them during his hearing testimony that Dr. Putnam gave restrictions of "light duty desk type work only with no working at heights, no climbing stairs and no prolonged walking or standing." Mr. Eldred admitted he did not take these restrictions into account in reaching his opinions and that he limited his review of potential employment for Mr. Davis to the sedentary level. He also admitted had he considered Mr. Davis capable of light work, it would increase his employment options.

Mr. Eldred noted that Mr. Davis did well on his academic testing, scoring in the 11th grade in reading and post-high school in math. Mr. Eldred also agreed that Mr. Davis has no restrictions on use of his hands or arms.

Mr. Eldred used a computer program called OASYS to compare Mr. Davis' restrictions and abilities against the requirements of all job titles in the DOT. Mr. Eldred explained that he uses the medical records and restrictions as well as the information he obtained from Mr. Davis in his interview to develop a "current ability profile" which is then compared to all of the job titles in the DOT. (Exhibit 11, computer printout pages 12, 13) In reviewing the "current ability profile" Mr. Eldred prepared for Mr. Davis, Mr. Eldred was unable to explain why he did not consider jobs that would have required Mr. Davis to "reach" and "handle" constantly since he has no restrictions or problems with his hands or arms. Mr. Eldred was also unable to explain why he lowered Mr. Davis' ability to do jobs involving "motor coordination, finger dexterity, and manual dexterity" in light of the fact that Mr. Davis has no restrictions on his hands or fingers and testified to no problems with either in both his hearing and deposition testimony. Mr. Eldred testified that just by changing "manual dexterity" from an aptitude level 3 (what Mr. Davis has done in the past) to an aptitude level of 4, he eliminated 8,661 job titles from the DOT from being considered as jobs Mr. Davis might have the aptitude and ability to do.

Even with the "current ability profile" that Mr. Eldred created and used to compare to the job titles in the DOT, (i.e. using frequent instead of constant for reaching and handling and aptitude level 3 instead of 4 for motor coordination, finger dexterity, and manual dexterity), Mr. Eldred found 21 job titles in the DOT that match or require less ability than he determined Mr. Davis currently has. (Exhibit 11, computer printout page 14) Those job titles include surveillance system monitor and table worker, both job titles which Mr. Eldred admitted are available in the open labor

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

market in southwest Missouri, both job titles of which fit all of the criteria Mr. Eldred found Mr. Davis to currently have considering both his pre-existing osteogenesis imperfecta and any limitations he has from the September 1, 2010 injury.

James England, Certified Vocational Rehabilitation Counselor, examined records and depositions regarding Mr. Davis at the request of the Second Injury Fund. Mr. England did not meet with Mr. Davis personally. Mr. England testified by deposition. Mr. England testified he believes Mr. Davis has the academic ability to handle entry-level jobs and that he could possibly benefit from retraining. He noted that Mr. Davis had a good work history and in the past had done heavy work and supervised people. Mr. England understood that Mr. Davis' osteogenesis imperfecta had gotten better in his adulthood, and he understood that for the 20 years prior to the injury of September 1, 2010, Mr. Davis had worked a heavy job without being accommodated or having physician- or self-imposed restrictions. From the records he reviewed he had no history that Mr. Davis ever had difficulty obtaining or maintaining employment prior to the September 1, 2010 injury.

Mr. England understood from reviewing Mr. Davis' deposition that since the injury of September 1, 2010, he has ongoing pain at a level of 1-2 in his knee and had trouble with stairs, squatting, kneeling and with walking on uneven ground. Mr. Eldred noted Dr. Putnam's restrictions to "light duty desk type work" and Dr. Swaim's restrictions to sedentary work with 10 pounds and 10-30 pounds infrequently, the ability to sit most of the time, and the ability to get up and move periodically, with no uneven ground, climbing, repetitive stooping, twisting, squatting, kneeling or crawling.

Upon consideration of all of the information he had, Mr. England opined that Mr. Davis is employable in the open labor market. He testified that while Mr. Davis could not return to his past employment as a plumber, he could do customer service work, possibly using some of his plumbing knowledge, could do inside sales, alarm monitoring, cashiering, light assembly packing, or night clerk at a motel. He noted that if Mr. Davis got some additional training, his job opportunities would increase. He felt Mr. Davis would be employable both on a full- and part-time basis. He also testified Mr. Davis should be capable of being a bus monitor.

Independent Medical Examinations and Doctor Ratings

Dr. Truitt Swain testified by deposition on behalf of Mr. Davis. Dr. Swaim performed an independent medical examination of Mr. Davis on November 21, 2011. At the time of this examination, Dr. Swaim took a history from Mr. Davis, reviewed various medical records, and performed a physical examination of him.

Dr. Swaim opined that as a result of the September 1, 2010 injury, Mr. Davis has a 50% permanent partial disability to his right leg at the 160-week level. He opined as a result of the prior breaks to his right lower leg and ankle, he has a 40% permanent partial disability to the right leg at the 160-week level. Finally, due to his osteogenesis imperfecta, Dr. Swaim opined Mr. Davis has a 20% permanent partial disability to the body as a whole. Dr. Swaim limited Mr. Davis to "sedentary to light work level according to the DOT" with the ability to infrequently exert force between 10-30 pounds. He opined he should sit most of the time with the ability to stand and/or walk for brief periods of time. He should not be on uneven ground, climb, repetitively stoop, twist, squat, kneel or crawl, and should limit significant standing and walking.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

On cross-examination, Dr. Swaim testified he understood that prior to the September 1, 2010 injury, Mr. Davis was doing all of the job duties associated with being a plumber. Dr. Swaim also testified that in his physical examination he noted Mr. Davis had good stability in both of his ankles. Dr. Swaim testified that he would defer to a vocational expert as to how the restrictions he placed on Mr. Davis would impact his ability to be employed.

Dr. John Putnam saw Mr. Davis on August 17, 2011, for a second opinion. Dr. Putnam opined Mr. Davis was not in need of further surgical intervention. On November 28, 2011, Dr. Putnam issued a rating and restriction report, opining that Mr. Davis has a 24% permanent partial disability to the right knee at the 160-week level due to the injury of September 1, 2010. He also opined that Mr. Davis should be limited to "light duty desk type work only with no working at heights, no climbing stairs and no prolonged walking or standing."

FINDINGS AND CONCLUSIONS

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808, RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800, RSMo.

I. Accident & Injury and Permanent Disability from September 1, 2010 injury

There is no dispute that Mr. Davis sustained an injury to his right knee in the scope and course of his employment with Negri Plumbing on September 1, 2010. Mr. Davis settled that claim with Negri Plumbing for 45% permanent partial disability to his right knee plus consideration for future medical.

II. Liability of Second Injury Fund

Mr. Davis is seeking either additional permanent partial disability benefits or permanent total disability benefits from the Second Injury Fund based on the combination between the disability from his September 1, 2010 injury and his pre-existing osteogenesis imperfecta.

Mr. Davis has the burden of proving all elements of his claim to a degree of reasonable probability. *Cardwell v. Treasurer of State of Missouri*, 249 S.W.3d 902, 911 (Mo.App. E.D. 2008) In determining the liability of the Second Injury Fund, the liability of the employer in isolation must be determined first. *APAC Kansas, Inc. v. Smith*, 227 S.W.3d 1, 4 (Mo.App. W.D. 2007).

I find the stipulation between Mr. Davis and the employer, settling Mr. Davis' permanent partial disability for the September 1, 2010 injury for 45% permanent partial disability to his right knee, to accurately reflect the extent of disability Mr. Davis sustained in that injury. I do not find Mr. Davis permanently and totally disabled from that injury alone.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

Having found Mr. Davis not to be permanently and totally disabled as a result of the September 1, 2010 injury alone, I must now determine the extent, if any, of the liability of the Second Injury Fund.

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer*, 352 S.W.3d 604, 608 (Mo.App. W.D. 2011) (internal quotation marks and citations omitted). Section 287.220.1, RSMo. establishes the Second Injury Fund, and benefits may only be awarded from the Second Injury Fund if the claimant proves the following: 1) a compensable work injury resulting in permanent partial disability, 2) a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment, and 3) that the compensable injury and the pre-existing permanent partial disability combined together to result in permanent total disability. A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W.2d 789, 792 (Mo.App. S.D. 1992). A claimant is not required to prove all elements of his claim with "absolute certainty," however he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo.App. E.D. 1999). "'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt" *Mathia v. Contract Freighters, Inc.*, 929 S.W.3d 271, 277 (Mo.App. S.D. 1996).

The parties stipulated that Mr. Davis sustained a compensable injury while working for Negri Plumbing on September 1, 2010, so Mr. Davis has met the first requirement of Second Injury Fund liability.

The question as to if Mr. Davis has proven he had a pre-existing disability of such seriousness as to constitute a hindrance or obstacle to his employment or reemployment is the next issue I must determine, and it proves more thought provoking. The Court in *Loven v. Greene County*, 63 S.W.3d 278 (Mo.App. S.D. 2001) has a very detailed analysis regarding evaluating pre-existing conditions to see if they qualify as a pre-existing disability for Second Injury Fund purposes. In *Loven*, the Court analyzed the change that was made to §287.220.1 in 1993 with the addition of the qualifying terms for the pre-existing disability by the addition of the terms of "such seriousness as to constitute a hindrance or obstacle to employment." *Id.* at 283, 284. The Court also reviewed the purpose of the Second Injury Fund, which is 1) to encourage the hiring individuals who are already disabled, and 2) to relieve an employer of liability for the previously disabled employee's total disability when that disability is not specifically attributable to the injury occurring during their employment. *Id.* at 282.

The Court in *Loven*; again, while noting the difference between the statutory change in 1993 and the previous "industrial disability" requirement, noted that "'Disability' is defined as 'the inability to do something'; 'deprivation or lack of esp. of physical, intellectual, or emotional capacity or fitness'; 'the inability to pursue an occupation or perform services for wages because of physical or mental impairment'; 'a physical or mental illness, injury, or condition that incapacities in any way.'" *Loven*, 63 S.W.3d at 284, citing Webster's Third New International Dictionary (1976). The *Loven* court wrote, "in keeping with the definition of 'disability' and the purpose of workers' compensation as being to indemnify for a loss resulting from a disability to work or harm to earning capacity, it is logical that the 'pre-existing permanent partial disability' referred to in Section 287.220.1 relates to a condition that affects or

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

has the potential to affect an ability to work and earn." *Id.* at 285. The *Loven* court also addressed the "potential" language relied on heavily in *Wuebbeling v. West County Drywall*, 898 S.W.2d 615, 620 (Mo.App. E.D. 1995), noting what while *Wuebbeling* was written after the 1993 change in the law, it "primarily involved a discussion and criticism of the previous 'industrial disability' standard to the extent it had been interpreted as requiring missing work or diminished earnings prior to the subsequent work-related injury." *Id.* at 288.

In *Loven*, the claimant alleged his pre-existing morbid obesity was a pre-existing disability for purposes of the Second Injury Fund. *Id.* While the claimant offered testimony from doctors and vocational experts that his pre-existing morbid obesity was a hindrance or obstacle to his employment, the Court looked primarily to the claimant's own testimony and his work history to find that his morbid obesity was not a pre-existing disability of such seriousness as to constitute a hindrance or obstacle to his employment. *Id.* The claimant in *Loven* testified he never had difficulty doing any aspect of any of his past physically-demanding jobs. The Court noted that the claimant testified he was able "to fully execute the requirements of his various occupations over a span of many years. This included activities such as lifting, stooping, bending, crawling, going up and down stairs, doing overhead work, and working at heights on structural steel." *Id.* at 289. He, likewise, testified that he returned to employment for a previous employer (Greene County) because they were so satisfied with his previous employment. *Id.* at 281.

Similar to the claimant in *Loven*, Mr. Davis testified that he performed physically-demanding jobs without difficulty for the twenty years prior to the work injury of September 1, 2010. He told Mr. Eldred in his job with Negri Plumbing he lifted at times up to 150 pounds and was involved in all aspects of commercial and residential plumbing from the ground up. Mr. Davis testified at hearing and in his deposition that he had no difficulty whatsoever in performing the job duties he was assigned at any of the places he worked. His pre-existing osteogenesis imperfecta, while causing many broken bones while he was younger, saw improvement per Mr. Davis' own testimony when he entered adulthood. He had not had a broken bone in the 20 years previous to the September 1, 2010 injury, even while working in very physically-demanding jobs. Furthermore, like the claimant in *Loven*, Mr. Davis changed jobs at least twice because he was offered more money. He left Negri to go to DeLong Plumbing in Springfield for more money, but then returned back to Negri Plumbing because they offered him more money. While Mr. Davis' pre-existing osteogenesis imperfecta certainly caused Mr. Davis to have a lot of broken bones years ago, there is no evidence that his osteogenesis imperfecta was a hindrance or obstacle to his employment or re-employment prior to his September 1, 2010 work injury. In keeping with the holding in *Loven*, I do not find that Mr. Davis' pre-existing osteogenesis imperfecta was a hindrance or obstacle to his employment for Second Injury Fund purposes. Thus, I find Mr. Davis failed to prove the second element of his claim against the Second Injury Fund, and I find the Second Injury Fund has no liability in this matter.

Even had I found that Mr. Davis' pre-existing osteogenesis imperfecta to be a pre-existing disability for purposes of the Second Injury Fund, I would not have awarded Mr. Davis permanent total disability benefits.

The term "total disability" means the inability to return to any employment and not merely the inability to return to employment in which the employee was engaged at the time of

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anthony Davis

Injury 10-069808

the last injury. §287.020.6 RSMo. The test for permanent total disability is if the worker is able to compete in the open labor market with a reasonable employer, in the ordinary course of business, hiring him. *ABB Power T & D Co., v. Kempker,* 236 S.W.3d 43, 48 (Mo.App. W.D. 2007). While "total disability" does not require that a claimant be completely inactive or inert, it does require a finding that the claimant is unable to work in any employment in the open labor market and not merely a finding that he is unable to return to his last employment. *Sifferman v. Sears Roebuck and Co.,* 906 S.W.2d 823, 826 (Mo.App., S.D. 1996), overruled on other grounds, *Hampton v. Big Boy Steel Erection,* 121 S.W.2d 220 (Mo.banc 2003); *Sullivan v. Masters Jackson Paving Co.,* 35 S.W.3d 879, 884 (Mo.App. S.D. 2001), overruled on other grounds *Hampton v. Big Boy Steel Erection,* 121 S.W.2d 220 (Mo.banc 2003).

The evidence establishes through both experts and Mr. Davis' own testimony that he had a significant injury to his right knee on September 1, 2010, one which causes him some ongoing difficulty. However, I do not find that the evidence establishes that Mr. Davis is unable to work in some capacity in the open labor market. Mr. Davis was a personable man who presented well at the hearing, he has a high school diploma and some vocational training. He did well on his recent academic testing with Mr. Eldred, scoring in the 11th grade in reading and post-high school in math. Mr. Davis has a strong work history and knowledge about both plumbing and construction, which Mr. England found could be applied in a less physically-demanding job, such as customer service work or inside sales involving those areas. Mr. Davis has no limitations on his upper extremities, including reaching and fingering.

I specifically note that Dr. Swaim, Mr. Davis' chosen IME doctor, deferred to a vocational expert for a final determination as to Mr. Davis' current employability. While two vocational experts, one for each side, gave opinions in this matter, I find, especially after full examination, that their opinions do not differ all that much. Mr. Eldred, while testifying that Mr. Davis is permanently and totally disabled, found 21 jobs in his computer search that required the same or less physical and mental ability than what he determined Mr. Davis currently possesses. Mr. England, likewise, found jobs, some of which match Mr. Eldred's search, which he believes Mr. Davis is both physically and mentally capable of performing. I find Mr. Davis and the opinion of all experts credible, that he is not able to return back to his normal employment in the plumbing field; however, that is not the test for an award of permanent total disability. *Sifferman,* 906 S.W.2d at 826. I find the credible and substantial evidence to show that Mr. Davis is capable of obtaining employment, doing a job as a reasonable employer would expect in the open labor market, and as such, had I found him to have proven he had a pre-existing permanent disability of such seriousness as to constitute a hindrance or obstacle to his employment, I would have awarded only permanent partial disability benefits, not permanent total disability benefits.

I certify that on 6-6-19 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

Made by:

Kevin A. Elmer

Administrative Law Judge

Division of Workers' Compensation

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