The issues identified at hearing were 1) the nature and extent of permanent disability related to employee's February 3, 2015, occupational disease claim; 2) whether employee's preexisting disability was a hindrance or obstacle to maintaining employment or finding reemployment¹; and 3) liability of the Second Injury Fund, if any.
Employee settled his claim against employer/insurer *Research Medical Center/HCA Health Midwest/Ace American Insurance Co. c/o Broadspire Services, Inc.* on January 28, 2019, for the lump sum of $17,265.00 based on approximate disability of 12.5% of the low back.
The administrative law judge found the Second Injury Fund liable for permanent total disability benefits pursuant to § 287.220.3 RSMo.
The Second Injury Fund filed a timely application for review alleging the administrative law judge erred because 1) a medical expert found there was no work injury; 2) employee's rating physician found that if employee was permanently and totally disabled it was due to the last accident; 3) all the prior injuries admitted into evidence did not meet the fifty-week required standard to combine with the current injury to trigger Second Injury Fund liability; 4) the experts that opined that employee was permanently and totally disabled based on a combination of current and prior injuries used prior injuries that did not reach the fifty-week required standard under § 287.220[.3]; and 5) the administrative law judge used old physician ratings contemporaneous with the prior
1 The transcript records the parties' stipulation of a dispute as to whether employee's preexisting permanent partial disability was "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." Transcript, p. 4. Section 287.220.3, the statute that applies to employee's 2015 injury claim, does not condition Second Injury Fund liability on proof of this element. The administrative law judge's award included no findings on the issue; nor did the parties address it in their briefs. We deem the issue abandoned for purposes of this appeal.
Injury No.: 15-059529
Employee: Michael White
-2-
injuries and ignored the ratings in the settlement stipulations for those prior injuries in finding the Second Injury Fund liable for permanent total disability.
For the reasons set forth below, we reverse the award and decision of the administrative law judge.
**Findings of Fact**
Employee, a floor technician, laundry, and transport worker, claimed progressive injury to his back from May 2011 to February 3, 2015, relating to job duties involving floor stripping, using a stick with a razor blade to remove wax at baseboards, operating buffing machines, a micro mop, and wet vacuums, moving furniture, beds, loaded desks, file cabinets, pulling trash and handling soiled linens.
Employee worked for employer herein from May 23, 2011, to February 3, 2015, as a floor technician and in laundry and patient transport. Employee's work involved tasks that involved heavy lifting and repeated bending, stooping, and twisting while at work. His medical records and testimony reflect continued and increasing pain and symptoms. Dr. Brent Koprivica opined that employee's work activities for employer contributed to gradual deterioration of employee's low back. Dr. David Ebelke acknowledged, "[P]icking up objects, lifting objects bending and twisting over a period of a few years could be a contributing factor in causing disc degeneration".
Employee had back injuries as early as 1987. That year, he entered into a workers' compensation settlement based on 3% of the body as a whole related to the back, but had no significant back complaints or compensable injuries until 2010, when he experienced radicular pain in his legs. Employee quit his job with Truman Medical Center on February 12, 2010, due to disabling back symptoms. He did not claim workers' compensation benefits in that year and rested his back for over a year, hoping for improvement.
We find that employee's work activities for employer was the prevailing factor in his February 3, 2015, onset low back occupational disease. Based on the expert opinion of Dr. Koprivica, we find that employee's primary injury resulted in 25% permanent partial disability of the body as a whole and that this injury did not result in permanent total disability in isolation.
Based on Dr. Koprivica's expert opinion, we find that employee had 10% permanent partial of the body as a whole for preexisting lumbar impairment. Based on Dr. Foster's expert opinion, referenced in Dr. Koprivica's August 2, 2016, report, we find employee had preexisting disability of 20% permanent partial disability of the body as a whole related to a compensable February 13, 1998, left shoulder injury in addition to preexisting disability of 25% permanent partial disability of the body as a whole related to a September 2, 1997, compensable right shoulder injury. Evidence of an employee's agreement to compromise settlements based on lesser percentages of disability is not binding on the administrative law judge or the Commission and does not preclude assignment of a higher percentage of disability based in other evidence in the record.
Injury No.: 15-059529
Employee: Michael White
-3-
Based on the medical documentation and the opinions in evidence, we find that employee's preexisting medically documented compensable disabilities combined with disability attributable to his primary, low back disability to result in permanent total disability as defined by law.
**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) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability 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 [emphasis added]; 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.
TI16711199
Injury No.: 15-059529
Employee: Michael White
-4-
§ 287.220.3(2) RSMo.
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).*
The administrative law judge correctly cited 287.220.3(2) as the law applicable to employee's claim. The administrative law judge interpreted § 287.220.3 as requiring the Division "to determine if the compensable work related injury combines with the preexisting disabilities recognized in 2013 changes to render the claimant permanently and totally disabled [emphasis added]". *Award, p. 15.* He concluded, "Based on the medical documentation, the opinions in evidence, Mr. White has meet [sic] the elements of § 287.220.3(2)(a)a. RSMo 2013 and proven that his preexisting medically documented compensable disabilities in combination with his aggravating non-work related low back disability results in permanent total disability as defined by law." *Award, p. 16.* Based in these findings, the administrative law judge awarded PTD against the second injury fund.
As we have found, employee sustained a compensable occupational disease related to his low back with onset of February 3, 2015. We do not disturb the administrative law judge's factual findings regarding the nature and extent of disability attributable to employee's primary injury, the nature and extent of employee's preexisting disabilities and medical causation of employee's permanent total disability.
We find that employee's Second Injury Fund claim fails because, pursuant to § 287.220.3 the employee failed to demonstrate that his alleged permanent total disability resulted from a combination of disability attributable to employee's primary injury and a single preexisting disability that satisfies the enumerated criteria under § 287.220.3(a)a.
Based on the only evidence in the record employee's permanent and total disability is due to the combination of his primary injury and various claimed preexisting disabling conditions, including at least one (10% of the body as a whole attributable prior lumbar impairment) that clearly does not equal a minimum of fifty weeks of compensation according to medical standards used in determining such compensation.
Injury No.: 15-059529
Employee: Michael White
-5-
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 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 fo