The administrative law judge found that employee had not proven permanent total disability occurred as a result of a combination of the last injury (hearing loss) and his preexisting disabilities, such that Second Injury Fund liability was established. We agree, however, we write to supplement the judge's reasoning in certain respects.
The last injury in this case (one of five injury claims which were tried together before the administrative law judge) is an occupational disease based on industrial exposure at the employer's workplace resulting in hearing loss. The administrative law judge wrote one decision combining all the injury claims and issued five identical decisions. The focus of the "combined injury disability" analysis was the four work-related back injury claims. The analysis did not specifically address the hearing loss claim with consideration of preexisting conditions, and whether hearing loss combined to reach permanent total disability under § 287.220.2 RSMo.
The occupational disease claim of hearing loss was filed August 1, 2014. Significant amendments were put into place by the legislature into the statutory provisions affecting Second Injury Fund liability, effective as of January 1, 2014. The analysis of a Second Injury Fund claim which falls under the amended (new) law requires the evaluation of new criteria set forth under § 287.220.3 RSMo to establish a compensable claim against the Second Injury Fund. See *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. 2019).
Section 287.220.3 RSMo provides, in relevant part, as follows:
- All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection. (Our emphasis)
¹ After the parties submitted the case to the Commission, the Missouri Supreme Court issued its opinion in *Cosby v. Treasurer of the State of Missouri*, 579 S.W. 3d 202 (Mo. June 25, 2019). Also the case of *Krysl v. Treasurer of Mo. as Custodian of the Second Injury Fund*, 591 S.W. 3d 13 (Mo. App. E.D. 2019, transfer denied Feb. 18, 2020). The parties were given the opportunity to supplement their arguments as a result of that ruling.
Injury No.: 12-107133
Employee: Jimmy Fields
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(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. 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...
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[.]
Section 287.220.3(a) a. (i-iv) sets forth additional qualifying language for preexisting conditions. We do not engage in evaluating whether there are qualifying conditions here because it is not necessary to our analysis. We acknowledge the position stated in the Missouri Court of Appeals, Eastern District in Krysl. Id. The Court found that the date of injury in Mr. Krysl's occupational disease claim, as stipulated by the parties, was January 1, 2013; and that the date of injury prevailed in determining which section of the statute applied. (Mr. Krysl filed his occupational disease claim in July 2016.) In so doing, the Court found that "old law" under § 287.220.2 RSMo applied. Similar to the Krysl case, Mr. Fields' hearing loss claim was filed on August 1, 2014, but the parties stipulated the date of injury was November 9, 2012.
While we apply the law as set forth by the Eastern District to this matter which falls within that Court's jurisdiction, we respectfully disagree with the interpretation that it is the date of injury, rather than the date filed, which governs the proper section to apply in an occupational disease case.
We believe such an interpretation requires us to ignore the plain language of the statute at § 287.220.3, which states that a claim "which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection." This is unambiguous and requires no further attempt to divine its meaning. We believe the interpretation taken by the Court, in fact, also requires us to add language to the statute to get to the Court's position. In effect, the Court urges us to insert additional words into § 287.220.3(1) "an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection, unless the date of injury of the occupational disease occurs before that date." (added words in bold) Strict construction of the statute, as required under § 287.800 RSMo forbids us from deviating from the plain words and meaning of the statutory language where their meaning is unambiguous.
Additional Findings of Fact
We adopt the administrative law judge's Findings of Fact to the extent they are not in conflict with our findings here.
We find the permanent partial disability rating referable to hearing loss is 10.25% at the 180 week level for binaural hearing loss, i.e. 18.45 weeks.
Dr. Robert Margolis provided ratings of 6.25% disability to the body as a whole referable to each of the four back injuries, which were filed as separate claims. We do not find his method of equal attribution to each injury to be persuasive. Dr. Russell Cantrell's opinion was that there was no permanent disability referable to the back with regard to the back injuries, with the
Injury No.: 12-107133
Employee: Jimmy Fields
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exception of the May 17, 2012 injury. In addition, both doctors noted some degenerative changes and spondylosis. We find there was a permanent partial disability to the body as a whole referable to the lumbar spine, including degenerative changes. We find the lumbar disability was a hindrance or obstacle to employment or reemployment. Dr. Margolis' written opinion on permanent total disability was based solely on the physical injuries, age, and work experience. He did not include hearing loss in his analysis as it had not yet been evaluated. Further, he indicated he would defer to vocational rehabilitation evaluation. Transcript, page 74.
Employee's primary care physician Dr. David Bean, who treated employee for various injuries, conditions, and pain complaints over the years, advised employee that he should not continue performing the duties of his job and he should apply for disability as early as February 2011. Transcript, page 2104. Nothing in the record suggests that Dr. Bean was considering hearing loss as reason employee could not perform his job duties.
Mr. Vincent Stock, the vocational rehabilitation specialist opining for employee identified limitations and injuries resulting from employee's neck, lower back, right shoulder, hands and both feet. Mr. Stock, who is also a psychologist, diagnosed employee with bipolar disorder and generalized anxiety disorder. Mr. Stock opined a 35-40% permanent partial disability, referable to the psychological conditions. His opinion regarding permanent total disability is primarily based on the physical limitations on movement and employee's reports of constant pain. In addition, Mr. Stock mentions a reading and hearing disability.
Conclusions of Law
Permanent total disability under § 287.220.2.
As the judge did not specifically address the hearing loss claim in combination with the alleged preexisting conditions to assess whether a preexisting condition(s) combined with hearing loss for permanent total disability, we do so here.
Section 287.220.2 provides for compensation from the Second Injury Fund for injuries where there has been preexisting disability due to injuries occurring prior to January 1, 2014. Under the old law, employee's burden is to show preexisting condition(s) of such seriousness to cause a hindrance or obstacle² to employment or reemployment; and that a subsequent compensable injury (primary) combines with them for a substantially greater degree of disability. Employee must first show the level of disability from the primary/last injury, in this case hearing loss. He has shown that to be 10.25% at the 180 week level.
We find employee has shown preexisting disabilities to the lumbar spine, right shoulder, hands, neck and psychological disabilities. The disabilities are permanent and are hindrances or obstacles to his employment or reemployment.
Employee has not persuaded us that his hearing loss (the primary injury) has combined with his preexisting conditions to result in permanent total disability. The evidence most strongly supports the conclusion that if employee is permanently and totally disabled, it is based on his prior physical injuries, pain, and physical limitations, without consideration of the hearing loss. In addition, the psychological disabilities identified by Mr. Stock may play a role in his overall disability level.
In summary, the evidence on this record does not persuade us that employee is permanently and totally disabled as a result of the combination of the primary injury with his preexisting
2 Where permanent total disability is claimed, "the minimum standards under this subsection for a body as whole injury or a major extremity injury shall not apply." § 287.220.2.
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Injury No.: 12-107133
disabilities. It follows, and we so conclude, that employee has failed to meet his burden of proof to satisfy the requirements of § 287.220.2.
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 award and decision of Administrative Law Judge Joseph P. Keaveny is attached and incorporated herein to the extent not inconsistent with this supplemental decision.
Given at Jefferson City, State of Missouri, this **22nd** day of September, 2020.
**LABOR AND INDUSTRIAL RELATIONS COMMISSION**
Robert W. Cornejo, Chairman
Reid K. Forrester, Member
**SEPARATE OPINION FILED**
Shalonn K. Curls, Member
Attest:
Secretary
Injury No.: 12-107133
Employee: Jimmy Fields