Charlie Hammons v. George J. Shaw Construction Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 16-074722

**Employee:** Charlie Hammons

**Employer:** George J. Shaw Construction Company (Settled)

**Insurer:** Midwest Builders Casualty Mutual (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. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying 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 award and decision of the administrative law judge with this supplemental opinion.

The question before us 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 single preexisting disabling condition that satisfies the enumerated criteria under § 287.220.3(a)a, but rather from the combination of his primary injury and all of his claimed preexisting disabling conditions, including those conditions that do not satisfy § 287.220.3(a)a.

We affirm with the administrative law judge's award finding that strict construction of § 287.220.3(2) requires an employee to prove that he or she is permanently and totally disabled due to a combination of only one qualifying preexisting disability in combination with a subsequent compensable work-related injury.

Section 287.800 RSMo requires administrative law judges and the Commission to construe provisions of the Missouri Workers' Compensation Law strictly. As 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.

Injury No.: 16-074722

Employee: Charlie Hammons

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Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009)(citations omitted).

Pursuant to the requirements of the amended test for permanent total disability claims against the Second Injury Fund provided for in § 287.220.3, set out in the administrative law judge's award, we conclude it is necessary to identify, with specificity, which of an employee's identified preexisting disabling conditions are claimed to combine with the primary injury to render the employee permanently and totally disabled.

If this were not the case, we would be permitted to include all identified preexisting disabilities in our analysis, without regard to whether they individually satisfy the enumerated criteria under § 287.220.3(a)a. Such an analysis would require us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply § 287.220.3(a)b as if it read as follows:

> 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, and all other disability existing at the time the last injury was sustained, results in a permanent total disability as defined under this chapter[.]

(additions in bold).

Pursuant to the strict construction mandate, we cannot read the foregoing additional words into the language of § 287.220.3(a)b. Rather, we conclude that the language of the statute requires that an employee prove that his or her permanent total disability results from a combination of the primary injury and a preexisting disability that meets the 50-week and categorical criteria under § 287.220.3(a)a. As stated above, we are further of the opinion that the employee must prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test.

There is no evidence on this record that suggests employee is permanently and totally disabled as a result of the combination of the primary injury with his sole qualifying preexisting disability that related to the lumbar spine. Accordingly, it follows, and we so conclude, that employee has failed to satisfy the requirements of § 287.220.3.

For the foregoing reasons, we deny employee's claim against the Second Injury Fund.

**Decision**

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

The October 1, 2019, award and decision of Administrative Law Judge Emily S. Fowler is attached and incorporated herein.

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Given at Jefferson City, State of Missouri, this **13th** day of July 2020.

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Shalonn K. Curls, Member**

Attest:

**Secretary**

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Injury No.: 16-074722

Employee: Charlie Hammons

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Purpose, history, and context are all important factors in determining the legislature's intent in amending § 287.220 in 2014.

**Purpose of the Second Injury Fund**

Barring a law to the contrary, the employer and its insurer are responsible for paying lifetime benefits to injured workers whose last injury, in combination with preexisting conditions, causes them to become permanently and totally disabled. See § 287.120.1 and 287.200 RSMo (2014) and Federal Mutual Insurance Co. v. Carpenter, 371 S.W.2d 955,957 (1963). This naturally discourages employers from hiring workers with preexisting disabilities. In post-World War II America, veterans and labor organizations lobbied for the creation of the Second Injury Fund to relieve prospective employers of the fear of hiring workers with preexisting disabilities. *Wuebbeling v. West County Drywall*, 898 S.W.2d 615, 621, n. 1 (Mo. App. 1995).

The General Assembly created the Second Injury Fund in 1947 to "encourage the employment of individuals who [were] already disabled from a pre-existing injury, regardless of the type of cause of that injury. ... it encourages such employment by ensuring that the employer is only liable for the disability caused by the work injury. Any disability attributable to the combination of the work injury with pre-existing disabilities [was] compensated, if at all, by the fund." *Treasurer of State-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 460 (Mo. banc 2013) (citation omitted).

**History of the Second Injury Fund**

Originally, the legislature placed no limits on Second Injury Fund eligibility. As more injured workers filed claims against the Second Injury Fund, the courts restricted Second Injury Fund liability by limiting eligibility to parties who could demonstrate a preexisting "industrial disability" from a bona fide work-related injury. The legislature replaced the judicially created standard with more precise numerical thresholds for permanent partial disability cases in 1993 but also allowed the courts to consider non-work-related preexisting conditions when awarding Second Injury Fund permanent partial disability benefits. *Id.*, at 465.

In 2005, the legislature significantly revised the Workers' Compensation Law to restrict access to all workers' compensation benefits—including Second Injury Fund benefits. Among the changes was to require administrative law judges, the Commission, and reviewing courts to apply "strict construction" when interpreting the law instead of the "liberal construction" that previously existed. Compare § 287.800 RSMo (2004) to § 287.800 RSMo (2014).

In 2014, the legislature again modified § 287.220 to limit the number of workers eligible for Second Injury Fund benefits. It eliminated permanent partial disability liability for injuries occurring on or after January 1, 2014, and restricted eligibility for permanent total disability benefits. See *Cosby v. Treasurer of the State of Missouri*, 579 S.W.3d 202, 209-210 (Mo. banc, 2019). Unfortunately, it is not clear how much the legislature intended to limit eligibility for permanent total disability benefits. In rejecting claims of

Injury No.: 16-074722

Employee: Charlie Hammons

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unconstitutional vagueness, the Court tacitly acknowledged that the statute is ambiguous. *Id.*, at 208-209.

As the Supreme Court stated in *Witte*: "[t]he primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words used in their plain and ordinary meaning. ... Only where the language is ambiguous will the Court resort to other rules of statutory construction." *Treasurer of State-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 461 (Mo. banc 2013).

In *Kilbane v. Director of Dept. of Revenue*, 544 S.W.2d 9 (Mo. banc 1976), the Court declared that "in construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one on the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act." *Id.*, 11 (citations omitted).

The 2014 legislative changes came on the heels of the above-referenced *Witte* opinion. In *Witte*, the Court addressed multiple cases in which injured workers sought compensation for permanent partial disability from the Second Injury Fund. *Witte* did not address Second Injury Fund liability in permanent total disability cases. However, the post-*Witte* changes the legislature chose to make, and chose not to make, are illuminating.

The *Witte* Court found it significant that in the 2013 version of the statute, when addressing Second Injury Fund liability for permanent partial disability claims, the legislature referred to "a disability" and "the disability" as opposed to "disabilities" when determining eligibility for permanent partial disability benefits from the Second Injury Fund. And, "[t]he statute also use[d] the singular 'injury' rather than the plural 'injuries.'" *Treasurer of State-Custodian of Second Injury Fund v. Witte*, *supra*, at 463.

The 2014 revision replaced subparagraph 287.220.1 with three separate subparagraphs. The new subparagraph one describes the purpose of the Second Injury Fund. The legislature took the description from the end of the previous subparagraph one. Subparagraph two consists of the rest of the previous subparagraph one but the legislature added a sentence to the beginning of the new subparagraph two that refers to "disability due to injuries [emphasis added]" thereby expanding the definition of a disability within the meaning of the statute to include more than one preexisting condition. See, § 287.220.1 RSMo (2013), compare § 287.220.2 RSMo (2014). It also continued to allow injured workers to claim Second Injury Fund permanent partial disability benefits if their last work-related injury occurred before January 1, 2014.

Injury No.: 16-074722

Employee: Charlie Hammons

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The third subparagraph eliminated claims for permanent partial disability against the Second Injury Fund for work-related injuries that occurred on or after January 1, 2014, and placed restrictions on the types and severity of preexisting conditions that trigger Second Injury Fund liability in permanent total disability claims. The thresholds the legislature placed on qualifying preexisting disabilities are similar to the permanent partial disability thresholds it wrote into the law for Second Injury Fund liability for permanent partial disability cases in 1993.

The legislature also chose to separate the alternative thresholds listed in § 287.220.3(2)(a)a with "or". "The disjunctive 'or' in its ordinary sense marks an alternative. . . ." *State v. Acevedo*, 339 S.W.3d 612, 617 (Mo. App. 2011) (citations omitted); see also *Anthony Piercy v. Missouri State Highway Patrol*, 583 S.W.3d 132, 142 (August 20, 2019). Therefore, the Commission must apply subsections (i) through (iv) separately and independently. They are alternatives to one another.

Finally, the legislature chose to place a limit on what types of qualifying preexisting conditions the court may consider in only one of the four alternative thresholds. Section 287.220.3(2)(a)a(iii) allows Second Injury Fund liability if the preexisting condition is not "a compensable injury, but such pre-existing 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. . . [emphasis added]"

The Court has stated that when ascertaining the legislature's intent, "each word, clause, sentence, and section of a statute should be given meaning. . . . The corollary to this rule is that a court should not interpret a statute so as to render some phrases mere surplusage." *Middleton v. Missouri Department of Corrections*, 278 S.W.3d 193, 196 (Mo. banc 2009) (citations omitted). Therefore, the Commission must read the restriction on considering preexisting conditions as unique to subparagraph (iii) since the restriction would be "mere surplusage" if it duplicated a restriction that also applies to subparagraphs (i), (ii), and (iv).

Had the legislature intended courts to apply the prohibition contained in subparagraph (iii) to the other three subparagraphs, it would have added the word "only" to § 287.220.3(2)(a)b. This section currently states, "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 and total disability as defined under this chapter."

If the legislature had intended the restriction on considering preexisting conditions to apply to subparagraphs (i), (ii), or (iv) as well as subparagraph (iii), it would have omitted the last part of subparagraph (iii) and subparagraph 287.220.3.(2)b would have included "combined only with the preexisting disability". Since the legislature chose to confine the restriction to subparagraph (iii), it did not intend the Commission to apply it more broadly.

Injury No.: 16-074722

Employee: Charlie Hammons

- 5 -

Finally, § 287.220.1 RSMo (2013) granted the Second Injury Fund a credit for the amount the employer pays the injured worker for disability resulting from the last work-related injury. Employee's attorney notes that legislature chose to place that credit in § 287.220.2 RSMo (2014) but nowhere else in the 2014 revision. He argues that the credit only applies if both subsections two and three are consulted in cases where a worker is awarded Second Injury Fund benefits for injuries occurring on or after January 1, 2014. Employee's attorney contends that allowing the Second Injury Fund a credit for amounts the employer paid the employee for permanent partial disability in post-2014 claims is logically inconsistent with the administrative law judge's theory of this case. The potential for adverse impact on the financial welfare of Second Injury Fund under this scenario is worthy of consideration.

In 2014, the legislature attempted to strike a balance between two objectives: its desire to protect the viability of the Second Injury Fund by limiting eligibility and its desire to encourage employers to hire disabled individuals by limiting their liability if the disabled person they hire suffers a subsequent work-related injury that makes them unemployable in the open labor market. See *Cosby v. Treasurer of the State of Missouri*, 579 S.W.3d 202, 205 (Mo banc, 2019) and *Treasurer of State-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 460 (Mo. banc 2013).

Application of § 287.220.3(2) to Employee's Claim

The question in this case is whether the legislature intended judges to read subsections two and three together, or partition them from one another. The administrative law judge in this case chose to partition and the majority affirms her decision. In doing so the administrative law judge and the majority decline to consider any preexisting condition not specifically listed in (a)a. While this approach certainly limits the number of injured workers eligible for Second Injury Fund benefits, it significantly reduces the incentive for employers to hire workers with preexisting disabilities by increasing their liability should a work injury case render an employee permanently and totally disabled when combined with preexisting conditions.

Employee's attorney persuasively argues that if the legislature intended judges to read subparagraph three in isolation, then the disjunctive "or" it placed between subparagraphs (i), (ii), (iii), and (iv), would prevent the Commission from considering more than one of the listed preexisting conditions when determining whether the injured worker is entitled to compensation from the Second Injury Fund. In other words, if the injured worker qualified under each threshold but none alone combined with the last work related injury to cause the worker to become permanently and totally disabled then the judge must deny Second Injury Fund benefits even if the injured worker is permanently and totally disabled when considering all of the qualifying preexisting conditions.

If that were the legislature's intent, the Commission would have to deny Second Injury Fund permanent and total disability benefits to the hypothetical injured worker whose post-2013 work related injury combined with qualifying preexisting injuries directly resulting from military service; and a separate compensable injury as defined in

Injury No.: 16-074722

Employee: Charlie Hammons

- 6 -

§ 287.220; and a separate non-compensable preexisting disability that directly and significantly aggravated or accelerated the subsequent work related injury.

I agree it is absurd to conclude that the legislature intended to direct the Commission to deny benefits to an injured veteran who had overcome multiple significant disabilities in order to continue working prior to his or her last work related injury. Such a result is clearly contrary to the purpose of the Second Injury Fund.

Furthermore, as discussed supra, in the rare case in which a work related injury combines with only one qualifying preexisting disability to cause the worker to become permanently and totally disabled, employee's attorney points out consistency with the administrative law judge's reasoning in this case would require the Second Injury Fund to pay the full cost of the permanent disability from the last work related injury because the Second Injury Fund could not claim a credit for compensation the employer/insurer had already paid. Such a result would clearly not advance the legislature's goal of preserving the Second Injury Fund's solvency as stated in Cosby, supra.

A possible theory consistent with the administrative law judge's interpretation of the 2014 amendments to § 287.220.2 is that our legislature intended to shift the burden of compensating the most severely disabled workers upon the public. After all, if the employer or the Second Injury Fund are not liable, dramatically increased Social Security Disability claims and payments will inevitably result, the cost of which will be borne by taxpayers. This option would subvert not just the underlying purpose of the Second Injury Fund, but that of the Missouri Workers' Compensation Law as a whole, because "[t]he purpose of workers' compensation is to make industry bear the burden of compensating employees for injuries arising out of the scope and course of employment." Gaston v. J.H. Ware Trucking, Inc., 849 S.W.2d 70, 74 (Mo. App. 1993). I reject the proposition that a measure intended to promote and protect the solvency of the Second Injury Fund was, in reality, a silent plan to shift the burden of compensating the most severely injured workers to the public as a whole.

The Commission should interpret statutes to avoid unreasonable or absurd results, including those that might defeat the purpose of the legislature. St. Louis Police Officers' Ass'n v. Board of Police Comm'rs of City of St. Louis, 259 S.W.3d 526,528 (Mo. banc 2008).

As the Supreme Court stated in State ex rel. Evans v. Brown Builders Elec. Co., Inc., 254 S.W.3d 31 (Mo. en banc 2008) "[i]n determining the intent and meaning of statutory language, 'the words must be considered in context and sections of the statutes in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words' ... The provision of a legislative act is not read in isolation but construed together and if reasonably possible, the provisions will be harmonized with each other." Id. at 35. (citations omitted)

The only logical way to apply § 287.220 in its current form when considering whether to award permanent total disability benefits from the Second Injury Fund is to treat

Injury No.: 16-074722

Employee: Charlie Hammons

- 7 -

subsections (i), (ii), (iii), and (iv) as thresholds like the thresholds the legislature placed on permanent partial disability claims in 1993. Under this approach, the legislature is instructing the Commission to first determine whether any of the injured worker's preexisting conditions meet any of the criteria set out in § 287.220.3(2)(a)a. If one does, § 287.220.3(2)(a)b instructs the Commission to award Second Injury Fund benefits if the last work related injury combined with preexisting disability causes the injured worker to become permanently and totally disabled. Of course, the 2014 changes expanded the meaning of "disability" to include multiple preexisting conditions. So, if a preexisting condition meets the threshold, then the Commission considers all "previous disability or disabilities, whether from compensable injury or otherwise and the last injury..." as required under § 287.220.2 RSMo (2014).

If the injured worker's last work injury combined with all the preexisting conditions causes the worker to become permanently and totally disabled, the Second Injury Fund pays lifetime benefits after taking its credit for compensation the employer/insurer paid. This interpretation strikes a logical balance between the competing goals of limiting Second Injury Fund liability while maintaining the incentive for employers to hire workers with preexisting disabilities.

Under this more rational approach, the employee here, Charlie Hammons, is entitled to Second Injury Fund benefits under § 287.220 RSMo (2014). His preexisting work related back injury meets the fifty-week threshold under § 287.220.3(2)(a)a(ii) and he had a subsequent work-related injury which when combined with his preexisting disability resulted in permanent total disability.

For all of the foregoing reasons, I disagree with the Commission majority's reading of the new statutory test. I am convinced that employee's evidence satisfies that test. I would reverse the decision of the administrative law judge and award permanent total disability benefits from the Second Injury Fund.

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

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

**Employee:** Charlie Hammons

**Employer:** George J. Shaw Construction Co. (Settled)

**Insurer:** Midwest Builders Casualty Mutual (Settled)

**Additional Parties:** Missouri Treasurer as Custodian of the Second Injury Fund

**Hearing Date:** August 5, 2019

**Checked by:** ESF/lh

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: September 7, 2016

1. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.

1. Was above Employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of employment, Employee lifted an unexpectedly heavy item causing injury to the low back.

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: Back

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

1. Nature and extent of any permanent disability: Previously settled with the Employer for 15% permanent partial disability to the body as a whole. No disability as to the Second Injury Fund

1. Compensation paid to date for temporary disability: $0

1. Value necessary medical aid paid to date by employer/insurer? $5,336.10

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 963.99

1. Weekly compensation rate: 642.66/$477.33

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: The Employer and Employee previously settled the primary claim for 15% permanent partial disability to the body as a whole.

1. Second Injury Liability: Pursuant to the discussion herein the Second Injury Fund is not liable to the Employee for any benefits.

1. Future requirements awarded: N/A

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

**Employee:** Charlie Hammons

**Employer:** George J. Shaw Construction Co. (Settled)

**Insurer:** Midwest Builders Casualty Mutual (Settled)

**Additional Parties:** Missouri Treasurer as Custodian of the Second Injury Fund

**Hearing Date:** August 5, 2019

**Checked by:** ESF/lh

On August 5, 2019, the parties appeared for a final hearing. The Division had jurisdiction to hear the case pursuant to Section 287.110. The Employee, Charlie Hammons, appeared in person and was represented by attorney, Mr. Keith Yarwood. The Second Injury Fund appeared through Assistant Attorney General, Ms. Alexandra Wilson. Mr. Hammons had previously settled his claim with the employer and the insurer.

The parties stipulated to the following:

1. That the employer, George J. Shaw Construction Co., was an employer operating subject to the provisions of the Missouri Workers' Compensation law on September 7, 2016 and was insured by Midwest Builders Casualty Mutual;
2. That Charlie Hammons was its Employee and he was working subject to the law in Kansas City, Jackson County, Missouri;
3. The Employee sustained an accident arising out of and in the course of his employment;
4. The Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. The Employer paid 5,336.10 in medical care, 0 in temporary disability, and $28,639.80 in permanent partial disability benefits based on 15% permanent partial disability to the body as a whole;
6. The Employee's average weekly wage was 963.99, making his compensation rate 477.33 for permanent partial disability and $642.66 for permanent total disability.

The issue the parties have asked this Court to resolve by this hearing is:

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

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

The Employee, Charlie Hammons, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

- Exhibit 1 - Report of Dr. James Stuckmeyer with 60 Day notice

- Exhibit 2 - Deposition of Mr. Terry Cordray (Deposition objections are overruled)

- Exhibit 3 - Primary Stipulation in this matter

- Exhibit 4 - Stipulation Inj. No. 92-063767

- Exhibit 5 - Stipulation Inj. No. 99-054252

- Exhibit 6 - Settlement transcript 10-02-14

- Exhibit 7 - Definition of Impairment and Disability, AMA Guides to the Evaluation of Permanent Impairment, 4th Ed.

The Second Injury Fund did not call any witnesses but offered the following exhibits, all of which were admitted into evidence without objection:

- Second injury Fund Exhibit I - Deposition of Charlie Hammons dated 4-23-19, Deposition objections are overruled

- Second injury Fund Exhibit II - Deposition of Charlie Hammons dated 11-18-16, Deposition objections are overruled

Based on the exhibits and the testimony of the Employee the Court makes the following findings:

Charlie Hammons (hereinafter referred to as Employee) is a 54-year-old man who graduated from high school in 1983. Prior to graduation, he participated in a work study program performing ground keeping at Skyline Inn Motel. After graduation, he attended one year of community college but did not obtain a degree and then performed various very heavy labor construction jobs.

During that time, he suffered several work related injuries. In February of 1999, Employee suffered a work related injury to his left foot when he hit it with a sledge hammer. He settled that case based on 12.5% of the left foot. He testified that he continued to have problems with the foot for a while after he was released but he did not believe it hindered him in any way at the time of his September, 7, 2016 work injury.

Employee suffered a work related meniscus tear of his right knee in 2014. He settled that case based on 5% impairment under Kansas law without the aid of an attorney. As a result of the knee injury, Employee had difficulty walking down hills, kneeling and squatting.

He suffered a work related injury to his low back in April, 1992. At that time he worked as a hod carrier, which is very heavy work assisting masons. In April, 1992, he was assisting masons when it began raining. He quickly collected equipment to get it out of the rain when he slipped and hit his back on a rock. An MRI revealed a herniated disc at the L5-S1 level. Employee reported pain radiating down his right leg. Dr. Robert Drisko performed an L5-S1

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

discectomy. Employee remained off work for two years as he healed. Dr. Drisko released him with permanent restrictions of occasionally lifting 70 pounds, frequently lifting 35 pounds and constantly lifting 15 pounds. Dr. Drisko stated that there was no question that Employee would reinjure himself if he returned to work as a hod carrier. He strongly suggested that Employee undergo vocational rehabilitation so he could compete in the labor market for a lighter type of work. Employee settled his case based on 20.5% permanent partial disability to the body as a whole. Employee testified that upon his release, he returned to construction work but not as a hod carrier. Instead, he took less physically demanding work as a general laborer. The general laborer positions did not require as much bending, twisting and heavy lifting. He testified that he would set up forms for foundations and set up and breakdown equipment for carpenters and brick layers. While the work was not as heavy, it did require repetitive lifting, carrying, walking, and standing, bending and working in awkward positions.

It was common for Employee to experience back pain at the end of the day. He would not report an injury most of the time. Instead, he would give his back time to heal as recommended by doctors. However, sometimes, the back pain was significant enough for him to file a Report of Injury. Back pain sent Employee to the emergency room twice in the four months prior to his back injury in this case.

Despite his disability, Employee benefited from the construction worker culture. He explained at his hearing that younger, less experienced laborers will perform the more physically demanding work while more senior members perform less physically demanding work and teach younger workers how to work more efficiently and safely. Employee testified that in the years after his 1992 back injury, he was able to do less, lift less and work slower.

Employee also suffered numerous injuries due to a non-work-related motor vehicle accident in 2010. These injuries included fractures to his ribs, scapula, as well as fractures at the T1, T6 and C5 levels of his spine. He also suffered a pneumothorax due to this accident.

Employee went to work for George J. Shaw Construction in September, 2015 as a general laborer. The job required heavy lifting, bending, twisting, and working in awkward positions. On September 7, 2016, Employee was on a jobsite when his supervisor instructed him to lift a large piece of old wall out of a hole. Employee climbed into the hole, which was almost as deep as he was tall, picked up the concrete and threw it above his shoulder out of the hole. Unfortunately, he underestimated its weight and immediately felt pain in his low back.

He reported the incident to his supervisor who verbally acknowledged the report but did not file a report of injury. Employee drove home at the end of the work day and the pain intensified when he coughed while sitting at a stoplight.

Employee had already scheduled a vacation for the next week. During that week, he sought treatment with a chiropractor without relief. The pain persisted and on September 21, 2019 he called and left messages for his employer asking that the employer send him to a workers' compensation doctor - but the employer did not reply. He went to the North Kansas City Hospital emergency room where doctors ordered a CT scan of the lumbar spine. The doctor concluded that spinal stenosis at the L3-L4 and L4-L5 was causing lumbosacral radiculopathy.

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

He followed up with his personal physician, Dr. Emily Lott, two days later. The doctor's notes reflect that the pain was radiating into Employee' left leg and that the employer had denied the workers' compensation claim. The notes a week later revealed that pain medication and laying down only temporarily relieved the pain. Dr. Lott referred Employee to pain management.

Dr. Griffith administered epidural steroid injections at the L3-4 and L4-5 on October 19, 2016 and November 15, 2016 but did not recommend a third epidural injection because the first two were not helpful. Dr. Griffith referred Employee to neurosurgeon, Dr. Michael Kinsman.

Employee told Dr. Kinsman that he had pain in both his left leg and low back but the back pain was worse than the leg pain. However, the leg pain was constant. Dr. Kinsman advised Employee that a surgery would likely help his leg pain but may actually make his back pain worse. Dr. Kinsman operated on Employee on March 9, 2017.

In the operative report, Dr. Kinsman noted degenerative disc disease of the lumbar spine that was most significant at the L4-5 on the left with left sided radiculopathy. He performed a left L4 hemi-laminectomy with decompression of the L4-5 and resection of the synovial cyst. Dr. Kinsman's note dated March 23, 2017 states that the surgery had resolved the significant presurgery leg pain but had done nothing for the low back pain. When Employee saw Dr. Kinsman again on May 4, 2017, his low back pain had become a major issue. Dr. Kinsman ordered a CT of the lumbar spine and suggested that Employee may require fusion surgery due to "pre-existing [mechanical] low back pain that appeared to be worse than preoperative back pain." He asked Employee to return in mid-June. Employee testified that his private health insurance ran out before the next visit.

The employer/insurer eventually accepted responsibility for the injury and settled the case based on 15% permanent partial disability to the body as a whole with medical left open and an agreement to hold Employee harmless on the medical bills he incurred as a result of the injury.

Employee never returned to work after September 7, 2016. He still has difficulty standing, walking, lifting, bending and twisting due to low back pain. He testified that prior to his last back injury, he increasingly self-accommodated by asking for help, limiting the amount he lifted and instructing younger workers to perform the heavier lifting tasks. The most he would lift on occasion were 40-pound forms. He would carry ten foot long two-by-four pieces of lumber on occasion. All of his activities were within Dr. Drisko's 1992 permanent restrictions.

However, since the accident, his limitations are so significant that he cannot return to any type of work he has performed in the past. In addition, although his left leg improved, his left buttock sometimes feels like it is on fire which further limits his ability to work. He testified that since September 7, 2016, he has difficulty sitting for more than thirty minutes, he cannot perform yardwork nor does he perform household repairs. He does not visit family and friends anymore since he would have to recline during his visits to alleviate his pain. Employee manages his pain with Percocet and by undergoing ablation procedures. Unfortunately, the positive effects of the ablations wear off in about six months.

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

Dr. James Stuckmeyer evaluated Employee on April 4, 2018. He noted that Employee has been unable to return to work due to "significant daily back pain." As a result of the September 7, 2016 work injury, Dr. Stuckmeyer formally increased Employee's restrictions to limiting prolonged standing or walking; no repetitive bending, lifting or twisting of the lumbar spine; he restricted against lifting more than 15 to 20 pounds occasionally below waist height; and will not allow lifting above waist height to exceed 10 pounds occasionally. Dr. Stuckmeyer summarized employees pre-existing physical disabilities by reviewing the back injury from his 1992 accident and agreeing that it was indeed a 20.5% permanent partial disability to his body as a whole. He noted that his disability to his right knee should be determined to be 20% permanent partial disability to the right knee and that for his chronic left ankle pain 12.5% permanent partial disability to the left foot and ankle was appropriate. He also felt that the injuries sustained in his automobile accident which predated his September 7, 2016 accident warranted a 20% permanent partial disability to the body as a whole. Finally he determined that employee suffered a 25% permanent partial disability to the body as a whole due to his last accident. Dr. Stuckmeyer further opined that the pre-existing lumbar spine, right knee, left foot, left ankle, and pulmonary condition all represent a hindrance or obstacle to employment.

Mr. Terry Cordray performed a vocational assessment of Employee on August 24, 2018. He noted that while Employee graduated from high school, testing revealed that he reads at only the ninth grade level and spells at the seventh grade level. His math abilities are that of an eighth grader. He concluded that Dr. Stuckmeyer's increased restrictions over Dr. Drisko's restrictions from the 1992 work injury would limit Employee to sedentary work. Mr. Cordray testified that sedentary, unskilled jobs requiring no more than a high school education represent only four percent of the jobs in the labor market. Those jobs, according to Mr. Cordray, typically require good keyboarding skills. Unfortunately, Employee had never performed sedentary work and, according to Mr. Cordray, Employee did not have the skills to perform sedentary work.

After reviewing the vocational assessment of Mr. Cordray, Dr. Stuckmeyer concluded that Employee is permanently and totally disabled from the open labor market as a result of significant pre-existing disabilities in combination with the disability stemming from the September 7, 2016 work injury.

In an addendum report by Dr. Stuckmeyer from October 2018, he reaffirmed his opinion that Employee is permanently and totally disabled as a result of the aforementioned pre-existing disabilities as outlined in his report of April 4, 2018, in combination with the primary back injury. Vocational expert, Terry Cordray also opined in his August 24, 2018 report that Employee is totally vocationally disabled due to the combination of his pre-existing and current injuries. He specified the following factors contributed to this conclusion: education, age, work history, history of missing work, pre-existing lumbar condition and surgery, pre-existing right knee injury and surgery, injuries from the motor vehicle accident, COPD, pulmonary issues, and restrictions from Dr. Stuckmeyer.

The only issue to be determined herein is whether the Second Injury Fund is liable to the Employee for any disability benefits.

The applicable law is found in Section 287.220.3 which applies to all claims filed after January 1, 2014. § 287.220.3(1); *Cosby v. Treasurer*, 2019 Mo. LEXIS 244, 8-9 (2019). For a

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlie Hammons

Injury No.: 16-074722

claim against the Second Injury Fund to be compensable, Employee must have "a medically documented [pre-existing] disability equaling a minimum of fifty weeks." § 287.220.3(2)(a)(a). Once a pre-existing disability meets fifty weeks, it must also fall within one of the following categories: a direct result of active military duty; a direct result of a compensable work injury; a disability which directly and significantly aggravates or accelerates the subsequent work-related injury; or a disability to opposite extremity, eyesight, or hearing loss as in the primary injury. § 287.220.3(2)(a)(a)(i-iv).

The legislature then states, "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)(a)(b). The language does not say that a pre-existing disability which is not set forth as in the statute can also be included in the assessment of disability. Strict construction is proper when interpreting workers' compensation statutes, so the Court may not "add or subtract words from a statute or ignore the plain meaning of the words that are there." § 287.800.1; Dickemann v. Costco Wholesale Corp., 550 S.W.3d 65, 68 n.5 (Mo. banc 2018).

When strictly construed, "the pre-existing disability as set forth in items (i), (ii), (iii), or (iv)" indicates that any pre-existing disability that does not meet the statutory requirements cannot be considered in the permanent and total disability determination. As a result, the Second Injury Fund is only liable when the combination of the qualified pre-existing disabilities and the primary injury result in permanent and total disability. § 287.220.3(2)(b).

Here, Employee's lumbar spine injury occurred in 1992 as a direct result of a compensable injury. This injury that resulted in a lumbar laminectomy received a rating of 20.5%, amounting to 82 weeks. Accordingly, the lumbar spine injury from 1992 can be included in the assessment of permanent and total disability. This is the only pre-existing injury that does qualify under the statute.

Although Employee's right knee injury in 2014 occurred as a direct result of a compensable injury, Dr. Stuckmeyer rated this injury at 20%, falling short of the week requirement at only 32 weeks. Similarly, Employee's left foot and ankle qualify as compensable injuries but the rating of 12.5% only places those injuries at 18.75 weeks. Therefore, the right knee, left foot, and left ankle cannot be included in the assessment of disability for the Second Injury Fund liability.

Employee's 2010 motor vehicle accident caused injury to his ribs, shoulders, and lungs. Although he testified that his back was not injured in the accident, the records from North Kansas City Hospital Emergency Department indicate he presented with symptoms of chest and back pain. Dr. Stuckmeyer rated these injuries at 20% permanent partial disability to the body as a whole. But because this injury does not fall into any of the categories outlined in the statute, it does not qualify and cannot be included in the overall assessment. Additionally, Employee's respiratory issues began after the accident and were never addressed by Employee during his testimony. Consequently, any respiratory issues also do not qualify to be used in Second Injury Fund liability.

Only one pre-existing disability, the lumbar spine, can statutorily be included in the assessment of permanent and total disability regarding Second Injury Fund liability. However, no

Page 8

**Injury No.:** 16-074722

Experts excluded the unqualified pre-existing injuries in their assessments. Dr. Stuckmeyer opined Employee is permanently and totally disabled from the combination of his lumbar spine, right knee, left foot, left ankle, and the primary injury. He also mentions the respiratory issues as contributions to Employee's current condition. Vocational expert, Terry Cordray reported Employee is totally vocationally disabled considering his current condition combined with pre-existing injuries and limitations, specifying Employee's pre-existing lumbar spine, right knee, fractures from the motorcycle accident, and COPD as contributing to this disability. Both experts failed to assess disability based only off the combination of the qualified pre-existing lumbar spine injury and the subsequent lumbar spine injuries from his September 7, 2016 accident. As a result, Employee does not meet the burden of proof required to maintain Second Injury Fund liability. *Cardwell v. Treasurer of Mo.*, 249 S.W.3d 902, 911 (Mo. App. 2008) (The Employee in a workers' compensation proceeding has the burden of proving all elements of the claim to a reasonable probability.).

Strict construction does not allow unqualified pre-existing injuries to be included in assessment of Second Injury Fund liability. The experts herein clearly determined Employee was permanently totally disabled based upon all of his pre-existing disabilities combined with those from his last accident. To carry his burden of proof, the Employee needed the experts to view only his qualified pre-existing disability from his 1992 lumbar injuries with his disabilities from the last accident. It is apparent to this Court that the Employee is permanently totally disabled. However, the Second Injury Fund has no liability for Employee's alleged permanent total disability because he is not permanently and totally disabled as a result of qualified pre-existing injuries combined with the primary injury.

I certify that on **10-1-19** 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 **M.D.**


Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation