Employee, sixty-six years of age at hearing, held a variety of skilled labor jobs before he began working for employer as a warehouse maintenance manager in July 1999. Employee sustained injury on July 7, 2016, while driving a delivery of frozen chickens to an Iowa grocery store. As employee was slowing to avoid debris on the highway and merge with traffic, a utility truck rear-ended his vehicle causing injury to employee's low and mid-back.
Employee returned to work for employer for approximately four months after the July 7, 2016, injury. Upon his return to work, employer accommodated employee by not
¹ The "Final Award as to the Second Injury Fund Only" incorrectly references Section 287.220.3 (2013) as "Section 287.220(3)".
Injury No.: 16-053081
Employee: Everett Ptomey
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requiring him to reach above shoulder level, squat or perform repairs below his waist level. Unlike other employees, employer did not time employee's work as a "picker." Employee's position ended on November 11, 2016, after employer sold its business and its successor told employee it had no position for him.
Employee settled his claim against employer/insurer on October 25, 2018, for $23,866.50 based on 12.5% permanent partial disability of the body as a whole, with future medical left open. He now claims permanent total disability against the Second Injury Fund.
Employee's expert, board certified orthopedic surgeon Dr. James A. Stuckmeyer, assessed employee's work-related preexisting disabilities as 25% permanent partial disability to each knee (40 weeks per knee) and 20% permanent partial disability to the neck (80 weeks). Dr. Stuckmeyer additionally assessed employee's non-work related disabilities as 15% to the body as a whole for atrial fibrillation (60 weeks) and 5% to the lumbar spine (20 weeks).
Dr. Stuckmeyer imposed restrictions of no repetitive flexion, extension, side bending of the cervical spine, no prolonged standing, walking, lifting or bending involving the lumbar spine, no lifting in excess of twenty pounds on an occasional basis below the waist, no lifting above the waist in excess of fifteen pounds on an occasional basis, and no lifting above shoulder height in excess of fifteen pounds on an occasional basis. He further recommended, with regard to employee's bilateral knee condition, no repetitive kneeling, squatting, repetitive stair climbing greater than needed for activities of daily living and no ladder climbing.
Employee's vocational expert Terry Cordray assessed employee's educational level, transferrable skills, and jobs available in employee's town of Denton, Kansas. Considering the results of this assessment and Dr. Stuckmeyer's restrictions, Mr. Cordray concluded that employee is not realistically employable in the open labor market.
The administrative law judge credited the testimony of employee and his experts. He found that employee was not permanently and totally disabled prior to his July 7, 2016, work injury. He further found:
- Employee had a preexisting, medically documented, work-related disability to the cervical spine equaling 20% of the body as a whole which translates to 80 weeks, which exceeds the 50 week threshold set out in § 287.220.3.
- Employee further had a preexisting non-work related disability of 5% of the lumbar spine, which translates to an additional 20 weeks of preexisting disability to the spine.
Injury No.: 16-053081
Employee: Everett Ptomey
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- Employee had a preexisting work-related disability to his lower extremities equating to 20% PPD of the body as a whole, which translates to another 80 weeks of preexisting disability.²
- Employee's primary injury caused 12.5% permanent partial disability to the body as a whole that not only combined with his preexisting work-related disability to cause employee to become permanently and totally disabled but further, employee's preexisting disability aggravated his primary injury.
- Vocational expert Terry Cordray opined that EE is not realistically employable in the open labor market due to Dr. Stuckmeyer's medical restrictions related to the spine, resulting from EE's last injury in combination with his preexisting disability.
Based on this evidence, the administrative law judge found employee permanently totally disabled "due to his last accident of July 7, 2016 in combination with his medically documented disability due to pre-existing work related injuries [emphasis added]."³
There is no evidence on this record that would suggest (let alone persuasively demonstrate) that employee is unable to compete for work in the open labor market owing to the effects of his July 7, 2016, injury in combination with a single preexisting disability that meets the 50-week requirement set out in § 287.220.3 (2). Accordingly, we find employee permanently and totally disabled due to a combination of the effects of the primary injury and various preexisting disabilities, including 5% non-work related disability to the lumbar spine, representing 20 weeks of permanent partial disability.
**Conclusions of Law**
**Second Injury Fund liability**
Employee seeks an award of permanent total disability benefits from the Second Injury Fund. Because employee's primary injury occurred after January 1, 2014, we must apply the new criteria set forth under § 287.220.3 (2) RSMo for establishing a compensable claim against the Second Injury Fund. See *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019).
In relevant part, the statute provides as follows:
> Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:
>
> (a) an employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability
² The administrative law judge arrived at this evaluation by combining Dr. Stuckmeyer's separate assessment of disability to employee's right and left knees as 25% rated at the 160-week level, and converting these ratings to a single 20% body as a whole rating. Because we resolve this appeal on other grounds, we need not address the Second Injury Fund's challenge to the administrative law judge's calculation method.
³ Award, p. 10.
Injury No.: 16-053081
Employee: Everett Ptomey
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compensation according to the medical standards that are used in determining such compensation which is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and
b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.]
§ 287.220.3 (2) RSMo.
Employee's preexisting work-related cervical spine injury resulted in 80 weeks of permanent partial disability. Given that this disability resulted from a compensable injury, we conclude that the criteria under § 287.220.3 (a)a (ii) is satisfied with regard to this preexisting condition. As we have found, the Second Injury Fund disputes the administrative law judge's finding that employee's preexisting disability to his lower extremities, separately evaluated by Dr. Stuckmeyer as 25% of each extremity rated at the 160-week level, equates to 20% permanent partial disability of the body as a whole. No party disputes that employee's claimed non-work related preexisting condition of 5% permanent partial disability to his lumbar spine, does not satisfy the minimum 50-week criteria set out in § 287.220.3 (a)a.
The question presently before us, then, is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and a preexisting disability that satisfies the enumerated criteria under § 287.220.3 (a)a., but rather from the combination of his primary injury and various claimed preexisting disabling conditions, including at least one preexisting permanent partial disability that does not equal a minimum of 50 weeks of compensation according to medical standards used in determining such
TI3681-1999
Injury No.: 16-053081
Employee: Everett Ptomey
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compensation. After careful consideration, we must conclude employee is not entitled to permanent total disability benefits from the Second Injury Fund, for the following reasons.
Pursuant to § 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our courts have instructed:
> A strict construction of a statute presumes nothing that is not expressed. ... [I]t means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.
*Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).*
It appears to us that employee invites us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply § 287.220.3 (2)(a)b as if it read as follows:
> Such employee thereafter sustains a subsequent compensabl