Gregory Phelps v. Gideon 37 School District

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 16-025639

**Employee:** Gregory Phelps

**Employer:** Gideon 37 School District (settled)

**Insurer:** Missouri United School Insurance (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 parties' briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation for employee's Second Injury Fund claim 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 administrative law judge's award and decision with this supplemental opinion.

Although not the basis of this award, we note that employee also failed to demonstrate that a single qualifying preexisting disability, exclusive of any other preexisting disabilities, combined with disability from his primary injury to result in permanent total disability. Employee's contention that *Treasurer of Missouri as Custodian of the Second Injury Fund v. Parker*, (WD83030, July 14, 2020) controls this issue is incorrect. On September 4, 2020, pursuant to Rule 83.02, the Western District Court of Appeals transferred its opinion in this case to the Supreme Court. In addition, the Eastern District Court of Appeals, in *Sterling Bennett v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund* (ED108713, August 25, 2020), specifically endorsed the Commission's denial of Second Injury Fund liability pursuant to § 287.220.3(2) where the employee failed to present a total disability opinion that considered only the combination of his primary injury and a single preexisting right shoulder injury.

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

The award and decision of Administrative Law Judge Amy L. Young is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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Given at Jefferson City, State of Missouri, this ______ 25th ______ day of January 2021.


**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Shalonn K. Curls, Member**

Attest:

**Secretary**

This case turns on the application of $\S 287.220 .3(2)$ to employee Gregory Phelps' permanent total disability claim against the Second Injury Fund.

Employee, a fire engineer, injured his left shoulder on April 14, 2016, while working on a school bus. As employee was replacing a belt, a ratchet he was using slipped, causing the belt's tensioner to yank and twist his left arm forward. . Employee settled his claim against employer/insurer on November 3, 2017, for $\ 28,860.33 based on 30 % of the left shoulder at the 232 -week level.

The only issue in dispute in this appeal is the Second Injury Fund's liability for compensation. Administrative Law Judge Amy L. Young found that employee, his medical expert Dr. David Volarich, and vocational expert Ms. Susan Shea were credible. She further found that employee is permanently and totally disabled. The administrative law judge yet denied compensation because she found that employee had no qualifying preexisting injury under categories i., ii. or iv. of Section 287.020.3(2)(a)a.

No party disputes that $\S 287.220 .3(2)$, effective January 1, 2014, applies to employee's Second Injury Fund claim in this case, based on his April 14, 2016, work injury. Cosby v. Treasurer of the State of Missouri, 579 S.W.3d 202 (Mo. banc 2019).

Section 287.220.3(2) reads, in pertinent part:

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; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent workrelated injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent workrelated 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

Injury No. 16-025639

Employee: Gregory Phelps

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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[.]

(emphasis added)

Section 287.220.3(2)(a)a sets up several initial hurdles an employee must overcome to trigger eligibility for Second Injury Fund benefits. For purposes of this opinion, analysis of this part of the statute is limited to subsection (ii) that provides that the preexisting disability is "a direct result of a compensable injury as defined in section 287.020" and subsection (iv) which provides that the preexisting disability is to an extremity "when there is a subsequent compensable work-related injury [the primary injury] of the opposite extremity."

Workers' compensation law is a creature of statute. When interpreting the law, the adjudicator should ascertain legislative intent by "considering the plain and ordinary meaning of the terms and giving effect to that intent if possible." *Templemire v. W & M Welding, Inc.*, 433 S.W.3d 371, 381 (Mo. 2014) (citations omitted). In the absence of statutory definitions, a court may consult a dictionary and consider the entire context of the statute to discern the plain and ordinary meaning of statutory terms. *Mantia v. Mo. DOT*, 529 S.W.3d 804, 809 (Mo. 2017). When a burden of proof is undefined, it is also appropriate to review the Missouri Approved Jury Instructions (MAI) for determination of the undefined standard and application of same. *Id.*, 809-810.

To meet the first hurdle, the employee must establish that he had a "medically documented preexisting disability." § 287.220.3(2)(a)a. This phrase is undefined in The Workers' Compensation Law. "Medically" is the adverb form of "medical" which relates to physicians, the practice of medicine, and medical treatment and "documented" is the past tense form of the verb "document" which means to support with documentary evidence. *Webster's Third New International Dictionary* 1402, 666 (2002). Earlier case law defined "preexisting disability" as an "industrial disability" occurring prior to the last or primary accident. *Stoddard v. Wilson Freight, Inc.*, 651 S.W.2d 152, 157-158 (Mo. App. 1983). As the court in *Stoddard* explained, if bodily infirmities prevent an employee from performing a part of their occupation or any other occupation so that their earning power is affected, then the employee is partially industrially disabled. *Id.*, at 158. More recent case law addressing the formerly used "hindrance and obstacle" language, has found that if a cautious employer could reasonably foresee that the preexisting injury has the potential to combine with a future work-related injury to result in more disability then the preexisting injury is disabling and constitutes a hindrance and obstacle to employment or re-employment. *Garibay v. Treasurer of Missouri*, 930 S.W.2d 57, 60 (Mo. App. 1996).

In this case, employee tendered testimony and extensive medical evidence that documented that he suffered from multiple disabling conditions that preexisted his April 14, 2016, work injury. Physicians diagnosed and actively treated employee for

Injury No. 16-025639

Employee: Gregory Phelps

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disabling conditions to his pulmonary system, which caused shortness of breath with exertion with wheezing, rhonchi, and cough. Employee also submitted evidence of multiple right knee injuries that had required three surgeries and limited the types of work he was able to perform. Further, employee tendered medical documentation that showed he suffered multiple low back injuries and had annular tears and disc protrusions at the L4/5 and L5/S1 lumbar spine levels which limited his ability to lift, bend and sit and his employer accordingly limited his job duties. These prior conditions had the potential to, and ultimately did, combine with a later work-related injury to create a greater overall disability. The first step of the analysis is met because employee's conditions related to his pulmonary system/lungs, right knee and low back all were "medically documented," affected his ability to perform part of his occupation, occurred prior to April 14, 2016, and were preexisting disabilities.

The second element is that the preexisting disability must equal a minimum of fifty weeks of permanent partial disability. "Permanent partial disability" is defined by § 287.190.6 as a disability that is permanent in nature and partial in degree. Permanent partial disability is required to be demonstrated and certified by a physician and stated within a reasonable degree of medical certainty. § 287.190.7. Notably absent from this second element is any requirement that the permanent partial disability be sourced to a single injury.

In this case, medical expert Dr. Volarich demonstrated and certified that employee had the following preexisting disabilities: 30% permanent partial disability of the pulmonary system rated at the body as a whole, 50% permanent partial disability of the right knee, and 25% permanent partial disability of the body as a whole at the lumbar spine. Dr. Volarich explained that the percentages of disability that preexisted April 14, 2016, were due to the recurrent injuries to each body area. Pursuant to § 287.190, Dr. Volarich's ratings equate to 120 weeks of permanent partial disability for the pulmonary system/lungs, 80 weeks of permanent partial disability for the right knee and 100 weeks of permanent partial disability for the low back. There are no opposing ratings in the record. Each of these preexisting permanent partial disabilities meet and exceed the fifty-week threshold of § 287.220.3(2)(a).

The administrative law judge in this case interpreted § 287.220.3(2)(a) as requiring each instance of employee's prior accidents and resultant injuries to be examined in isolation regardless of whether the employee sustained a re-injury to the same body area. Her award states that each single injury event must equal or exceed the fifty-week disability criteria for the preexisting disability to qualify and trigger Second Injury Fund liability. The plain language of § 287.220.3(2)(a) includes no commandment that each accident and resultant injury must meet the fifty-week threshold on its own. Therefore, the administrative law judge incorrectly erred in requiring the employee to distinguish each incident of disability and assign a separate percentage of disability to recover benefits. See Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. App. 2007).

The final hurdle in this case is for the preexisting disability to be either "a direct result of a compensable injury as defined in section 287.020" or to an extremity "when there is a subsequent compensable work-related injury of the opposite extremity." § 287.220.3(2)(a)a(ii) and (iv). Examining first § 287.220.3(2)(a)a(ii), this section refers

TI3671-0300

Injury No. 16-025639

Employee: Gregory Phelps

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back to § 287.020 for a definition of "injury," which as of 2014 provided that an "injury" is defined to be an injury which has arisen out of and in the course of employment. § 287.030.3(a). The term "compensable" references ability to be compensated under The Workers' Compensation Law. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 463 (2002).

The phrase "direct result" is undefined in the statute but is a legal term frequently used, especially in Missouri jury trials. For example, in negligence cases, the required verdict director asks the jury to find for the plaintiff they believe as a "direct result" of such negligence that the plaintiff sustained damages. MAI 17.01. "Direct result," though, does not equate to exclusive or sole cause. In *Crabtree v. Bugby*, 967 S.W.2d 66 (Mo. 1998), which the predecessor of the *Templemire* decision, the employer challenged the verdict director submitted by the discharged employee that directed the jury to find in plaintiff's favor if it found "as a direct result of plaintiff's filing a claim for [workers'] compensation, defendant discharged plaintiff." *Id.*, at 71. At the time § 287.780 was interpreted to require that a plaintiff prove that the "exclusive cause" of their discharge was the filing of a workers' compensation claim. *Crabtree* at 71-72 and *Templemire*, at 378. The Missouri Supreme Court in *Crabtree* held that the jury instruction using "direct result" was erroneous in that it permitted the jury to return a verdict for the plaintiff because "direct result" may include other causes of factors. *Id.*

In cases involving two or more causes of damages, the general rule is that if a defendant is negligent and his negligence combines with that of another or with any other independent, intervening cause, he is liable, even though his negligence was not the sole negligence or the sole proximate cause, and although his negligence without such other independent, intervening cause, would not have produced the injury. *Carlson v. K-Mart Corp.*, 979 S.W.2d 145, 147 (Mo. 1998). The MAI further provides that the "direct result" language in cases involving two or more causes of damage, should be modified to either "directly caused or directly contributed to cause damage to the plaintiff" or "directly caused damage to plaintiff or combined with the [acts of another causing damage] to directly cause damage to the plaintiff" to explain to the jury that "direct result" includes outside acts and events. MAI 19.01. Hence, the term "direct result" encompasses not only the single act, but the combination of acts and events that result in damages or, in workers' compensation parlance, disability. Put another way, without the prior compensable injury, the total preexisting disability would not have been created. Nowhere does § 287.220 state or imply that "direct result" only encompasses a single, solitary event as the sole cause of the resulting disability. The plain and ordinary meaning of "direct result" is that it directly caused or directly contributed to the resulting preexisting disability.

In this case, the employee established that the preexisting disabilities to his lungs/pulmonary system, right knee and low back were all a "direct result of a compensable injury as defined in section 287.020." On March 9, 2000, employee sustained a compensable injury to his lungs when he suffered chemical burns to his lungs. Division records document that the injury was compensable because the employer's workers' compensation insurer covered it. Employee had other causes for his pulmonary/lung disability including asthma and smoke/chemical inhalation as a fireman, but the compensable injury of March 2000 combined with those other causes to create the resulting damage and disability. Similarly, for his right knee, employee

Injury No. 16-025639

Employee: Gregory Phelps

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sustained three separate injuries including a knee injury while working a truck wreck as a fireman in 1998 and a 2009 injury while working for the Gideon School District. There is no dispute that the 2009 right knee injury was compensable as the compensation that employee received is documented by Division records and again, combined with the other instances of right knee injuries to create the resultant disability. For the low back, employee suffered two compensable injuries in 2007 and 2015. The "direct result" of his preexisting disability to his low back was the combined effect of the two injuries. None of the compensable injuries were minor or de minimis events as they each substantially affected and caused the resulting preexisting disability. In accord with the plain language of the statute, employee's preexisting disabilities to his lungs/pulmonary system, low back, and right knee meet the requirements of § 287.220.3(2)(a)a(ii).

Regarding § 287.220.3(2)(a)a(iv), "[a] preexisting permanent partial disability of an extremity ... when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity. ...", the terms are again undefined by the statute, but the subsection does not require the preexisting disability to be caused or result from any particular source. Subparagraph b though refers to the primary or last compensable work injury on which the Second Injury Fund is premised. "Extremity" refers to a limb of the body (e.g. hand or foot) or other appendage. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002). Definitions of "Opposite" include, inter alia, being completely different or positioned on the other side. See Id. The subsection therefore requires that the preexisting disability to an extremity (such as an arm or leg) and that the primary or last work-related injury be to an extremity on a completely different side of the employee's body.

Here, the primary compensable work-related injury to the employee resulted in disability to his left shoulder, which was an extremity of the body. The opposite of left is right. The preexisting disability to his right knee was to an extremity on the opposite of the left shoulder. According to the subsection, this meets the triggering criteria for Second Injury Fund liability.

As set forth above, each of the employee's preexisting disabilities to his pulmonary system/lungs, right knee, and low back were medically documented, predated the April 14, 2016, work injury and equaled and exceeded a minimum of fifty weeks of permanent partial disability. Employee's preexisting disabilities to his pulmonary system/lungs, right knee, and low back were a direct result of a compensable injury and the right knee permanent partial disability was to the opposite extremity of his left shoulder primary injury. Employee therefore met his burden to establish qualifying preexisting disabilities to trigger Second Injury Fund liability.

The administrative law judge addressed each of employee's preexisting work-related injuries by their individual accident dates. For any injury in which the employee did not file a claim for compensation and receive a settlement the administrative law judge required that employee prove that the accident was the prevailing and/or substantial factor (depending on the injury date) in causing the injury for that particular date and in and of itself resulted in the threshold fifty weeks of permanent partial disability. Effectively, this meant that employee was doubly penalized for not pursuing a settlement for prior work injuries and raising the burden of proof as to what a "compensable injury" means under § 287.220.3(2)(a)a(ii).

MNKOI 0000811611

Injury No. 16-025639

Employee: Gregory Phelps

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As previously stated, "compensable injury" means an injury that has arisen out of and in the course of employment and entitles an employee to compensation. There is no requirement under § 287.220.3(2)(a)a(ii) to re-litigate each of the prior work-related injuries and proving substantial or prevailing factor. Simply put, if the employee received compensation for the injury, then it was a "compensable injury." The administrative law judge acknowledged the same by accepting instances wherein employee filed a claim and settled the injury as being a "compensable injury." However, in employee's case, he was unaware he was even entitled to permanency for his prior injuries and did not get an attorney to help him until notified by the Division following his 2009 right knee injury.

Although the administrative law judge accepted the Division records for the 2009 right knee and later injuries as proof they were a "compensable injury" because each had a claim and stipulation, the administrative law judge rejected the unrebutted testimony, medical records, and Division records establishing that the prior work-related injuries arose out of and in the course of employment and were entitled to compensation. In particular, for the 2000 pulmonary injury stemming from the chemical burn, employee testified as to the cause and treatment provided by the workers' compensation insurer. Contemporaneous Division records further showed the employee received compensation (e.g. medical treatment and temporary disability) for the same. Similarly, for the 2007 low back injury, employee testified as to the cause of the injury while moving a file cabinet and the treatment that employer's workers' compensation insurer provided. The same was noted and documented in later medical records for treatment provided relating to employee's 2015 low back injury. There was no evidence to the contrary.

Employee's 2000 pulmonary and 2007 low back injuries each constituted a "compensable injury" because they arose out of and in the course of employment and employee received compensation for the same.

The administrative law judge found the employee to be "clearly" permanently and totally disabled, but halted further analysis of Second Injury Fund liability due to the errors discussed, supra. In addition to being "clearly" permanently and totally disabled, it is also clear that employee is permanently and totally disabled due to the combination of his subsequent compensable injury to his left shoulder combined with his qualifying preexisting disabilities and all other relevant factors including his age, education, work history, and non-qualifying disabilities.

It has long been held that under the Missouri Workers' Compensation Act that other factors such as an employee's physical condition, age, education, job skills, and work experience should be considered in determining whether the employee is permanently and totally disabled and eligible to receive Second Injury Fund benefits. Karoutzos v. Treasurer of the State of Missouri, 55 S.W.3d 493 (Mo. App. 2001).

While employee concurs that the purpose of the amendments to § 287.220 were enacted to create stricter standards for Fund liability, the amendments did not change the Second Injury Fund's purpose. The General Assembly created the Second Injury Fund in 1947 to "encourage the employment of individuals who [were] already disabled

Injury No. 16-025639

Employee: Gregory Phelps

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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).

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 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).

An interpretation of the 2014 amendments to § 287.220.2 excluding consideration of multiple preexisting disabilities suggests that our legislature intended to shift the burden of compensating the most severely disabled workers upon the public as a whole. 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 this proposition.

The recent decision of *Treasurer of State v. Parker*, WD83030 (July 14, 2020), currently on transfer to the Missouri Supreme Court, enunciated that the proper interpretation of § 287.220.3 requires that once an employee has a preexisting disability that satisfied one of the subsections that exceeds the fifty-week minimum, then the Commission may consider other preexisting injuries and disabilities as well as all other characteristics (e.g. age, education, employment history, etc.) to determine if the employee is permanently and totally disabled.

In this case, employee, age sixty-seven at the time of hearing, worked continuously since he was a teenager. He dropped out of high school, but made his way to serve as a full-time and volunteer fireman for more than twenty-five years, a maintenance supervisor for public housing and schools. He also operated his own handyman business. Employee suffered numerous injuries, yet prior to his April 2016 injury always eventually returned to full-time employment. Finally, though, employee's April 2016 left shoulder injury combined with his prior disabilities to render him unable to work. Employee's preexisting disabilities to his lungs/pulmonary system, right knee, and low back each met the qualifying criteria of § 287.220.3(2)(a)a(ii) and the preexisting right knee also met the criteria for § 287.220.3(2)(a)a(iv). Employee suffered a subsequent compensable injury (the primary injury) to his left shoulder. The combined effect of employee's qualifying preexisting disabilities and compensable primary injury triggered

Injury No. 16-025639

Employee: Gregory Phelps

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Second Injury Fund liability. All pertinent criteria may be considered to arrive at a determination that employee is permanently and totally disabled.

Dr. Volarich opined that the combination of preexisting disabilities to employee's lungs/pulmonary system, right knee, low back, in combination with employee's April 2016 left shoulder injury resulted in permanent total disability. Vocational expert Ms. Susan Shea stated that employee was unable to work due to the limitations of his numerous orthopedic injuries. While employee's age, education, and physical condition are relevant factors, employee simply could not work anymore due to the cumulative synergistic effect of his work-related injuries. This renders employee eligible for Second Injury Fund benefits under § 287.220.

In conclusion, the administrative law judge erred in interpreting § 287.220 and denying Second Injury Fund liability for this claim. Employee sustained a subsequent compensable injury that combined with qualified preexisting disabilities and considering other relevant factors such as employee's age, education, work history, and prior disabilities which when combined resulted in employee being permanently and totally disabled.

I would reverse the decision of administrative law judge and award employee permanent total disability benefits from the Second Injury Fund. Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

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? April 14, 2016.
5. State location where accident occurred or occupational disease contracted: New Madrid County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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 the employer insured by above insurer? Yes.

Employee: Gregory Phelps

Injury No. 16-025639

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee was changing a tensioner on a school bus engine when his ratchet slipped causing his left arm to rotate and yank forward causing the injury.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Left shoulder.

1. Nature and extent of any permanent disability: 30% of the left shoulder.

1. Compensation paid to date for temporary total disability: $475.57 (1 1/7 weeks).

1. Value necessary medical aid paid to date by the employer-insurer: $67,977.67.

1. Value necessary medical aid not furnished by the employer-insurer: 0.00.

1. Employee's average weekly wage: 621.99.

1. Weekly compensation rate: $414.66 for temporary total and permanent partial and permanent total disability.

1. Method wages computation: By stipulation.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

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Employee: Gregory Phelps

Injury No. 16-025639

On January 29, 2020, the employee, Gregory Phelps, appeared in person and with his attorney, D. Matthew Edwards, for a hearing for a final award. The employer-insurer was not present as the employee had settled the primary claim with the employer-insurer by stipulated settlement. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Crystal Williams. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri United School Insurance.
2. On April 14, 2016, the employee was an employee of Gideon 37 School District and was working under the Workers' Compensation Act.
3. On April 14, 2016, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was 621.99, resulting in a compensation rate of 414.66 for temporary total, permanent partial, and permanent total disability benefits.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer furnished medical aid in the amount of 67,977.67.
9. The employer-insurer paid 475.57 in temporary disability benefits.

1. Liability of the Second Injury fund for permanent total disability.
2. The date the employee reached maximum medical improvement.

The following exhibits were offered and admitted into evidence:

1. Stipulation for Compromise Settlement for Injury No. 16-025639
2. Records from Division of Workers' Compensation
3. Medical Records from Advanced Orthopedic Specialists
4. Medical Records from St. Francis Medical Center
5. Medical Records from Dr. John Hunt
6. Medical Records from Southeast Missouri Hospital
7. Medical Records from The Orthopedic Center of St. Louis

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**Injury No. 16-025639**

1. Medical Records from SEMO Sports and Rehabilitation

1. Medical Records from Heartland Plastic & Hand Surgery

1. Medical Records from Poplar Bluff Regional Medical Center

1. Medical Records from Kneibert Clinic

1. Medical Records from Orthopedic Sports Medicine and Spine Care Institute

1. Deposition of Dr. David Volarich

1. Deposition of Susan Shea

1. Medical Records from Dr. James Coyle

**The Second Injury Fund Exhibits:**

**A. Deposition of Gregory Phelps taken on March 7, 2019**

All exhibits appear as the exhibits that 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.

The Court took judicial notice of all the records contained in the files of the Division of Workers' Compensation.

**APPLICABLE LAW:**

"The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." **Section 287.808 RSMo.**

Employee's primary injury occurred after January 1, 2014; therefore, his burden of proof for a compensable claim against the Second Injury Fund is set forth in Section 287.220.3 RSMo, Supp. 2013. See *Cosby v. Treasurer of the State of Mo as Custodian of the Second Injury Fund*, 579 S.W.3d 202, (Mo. banc, June 25, 2019.) The test for finding the Second Injury Fund liable for permanent total disability under Section 287.220.3 RSMo, is as follows:

1. 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.

1. No claims for permanent partial disability occurring after the effective date of this section 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. 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:

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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; . . .

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250 .

Section 287.800 RSMo mandates that the provisions of Chapter 287 be strictly construed.

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations at hearing, I find:

Gregory Phelps (hereafter "Employee") was born on February 2, 1952, making him 67 years old at the time of hearing. Employee resides in Malden, Missouri, with his wife of 50 years, Judy Phelps. Employee and his wife have three self-supporting adult children.

Employee attended high school through the $11^{\text {th }}$ grade and obtained his GED in 1988. He has never taken a college course. The only educational training he has received since high school was firefighting training. He never served in the military.

Employee began working at 12 years old as a farm laborer picking cotton and "pitching" melons. He also worked part-time at a fruit market during high school. His first full-time position was working for Dunklin County Compress, a facility that took bales of cotton from a

**Injury No. 16-025639**

gin and compressed them into modules. He mostly worked as a forklift operator. After about a year, he left Dunklin County Compress and took a position as a carpenter's helper in Tennessee for about a year. After that, he went to work for the Malden Fire Department in 1971 as a volunteer fire fighter. After approximately three to three-and-a-half years, he continued to serve as a volunteer fire fighter, but also started a handyman business on the side performing jobs such as painting, concrete work, etc. on his days off and in the evenings.

At some point Employee returned to work at the Malden Fruit Market as a warehouseman for about six years. He drove and loaded trucks. After that he went to work for BC Aluminum on a factory line for about a year; then he went to work for Continental Homes, a modular home manufacturer. Throughout his employment, he continued to operate his handyman business on the side.

In 1978, Employee returned to work for the Malden Fire Department on a full-time basis. He held this position for approximately 13 years. In 1990 he took a job with the Malden Housing Authority as a maintenance supervisor for ten years, but continued to serve as a volunteer firefighter. His job duties as a maintenance supervisor included keeping houses in repair and lawn work. After a work-related injury in 2000, Employee quit and was out of the work force for approximately one year. Employee retired from the Fire Department after his accident because of his health.

He eventually took a job as a display technician at Bootheel Youth Museum, a non-profit organization. He was hired with grant money and was able to ease himself back into the work force. He worked there until about 2005 or 2006. The grant money was about to expire so he applied for a job as a maintenance worker.

Employee was hired by Risco School District as a maintenance supervisor in 2006. He also drove a bus on occasion to ball games. In 2009 he went to work for Gideon School District (hereafter "Employer") as a maintenance man/supervisor/bus mechanic. He worked there until 2016.

On April 14, 2016, Employee was working on a school bus for Employer. He was trying to change out a tensioner (mechanical device that keeps tension on belts) and had a ratchet in his right hand and a pry bar in his left hand. The ratchet slipped and his left arm was rotated and yanked forward causing immediate pain in his left shoulder. Employee was initially treated with a sling. He was then sent to Dr. Mall who diagnosed a rotator cuff tear and performed an arthroscopic rotator cuff repair of the subscapularis, supraspinatus and infraspinatus as well as subacromial decompression and acromioplasty, coracoplasty, extensive debridement of the superior and posterior labrum, and open AC joint resection. Dr. Mall released him at maximum medical improvement (hereafter "MMI") on December 13, 2016, to full duty. Dr. Mall assigned a rating of 7% permanent partial disability to the left shoulder. Surgery helped his symptoms but he continued to have ongoing problems. He last physically worked on January 17, 2017. He never returned to full duty. He eventually left his job because he could tell it was not going to get

Page 6

Employee: Gregory Phelps

Injury No. 16-025639

better. He was unable to get down on his hands and knees to work. His lungs bothered him and his neck hurt. He was not asked by his employer to leave, but they had hired another man to do his job and he believed he was training his replacement. He applied for and was awarded social security disability benefits. He has not attempted to return to work and has not performed any work since he retired.

Employee settled his claim with Employer-Insurer for 30% of the left shoulder at the 232-week level.

Preexisting injuries/conditions

Asthma/COPD

Employee was diagnosed with asthma as a child. He has taken steroid medications and breathing treatments for the condition, but he does not believe his asthma limited his activities. Employee is a smoker and began smoking at age 13.

While working for the Fire Department, Employee sustained several smoke and chemical inhalation injuries that he believes worsened his asthma and increased his need for medications and inhalers. Employee did not provide specific dates for these exposures. He recalled having breathing treatments at least three to four times. He did not file any claims for workers' compensation regarding these exposures and there are no reports of injury on file with the Division of Workers' Compensation.

On March 9, 2000, Employee suffered a chemical exposure while working for the Malden Housing Authority. He was running a spray rig using herbicides when the line broke and sprayed him. He inhaled the herbicide and suffered a reaction. A report of injury was filed with the Division of Workers' Compensation. He testified that he went to the hospital and was given steroid shots. He testified that he was diagnosed with chemical burn in his lungs. He testified he was also diagnosed with COPD, although it is unclear when this diagnosis was made. He testified that workers' compensation paid for his "initial treatment." A Receipt and Notice of Termination of Compensation Payments filed on behalf of the Housing Authority of the City of Malden on July 13, 2000, reflects that Employee was paid 3 2/7 weeks of temporary total disability benefits and stated that the nature of the disability was "CHEMICAL BURN." The notice reflected that benefits were terminated on July 5, 2000, because Employee had returned to work but that Employee was still treating for the injury. Employee testified that he continued to work as long as he could, but was unable to get the job done and believed his employer wanted him to leave so he finally quit. After that he was off of work for about a year. He did not receive a workers' compensation settlement and did not understand that he could pursue a settlement.

Employee retired from the Fire Department after his chemical exposure because of his health. He could no longer wear an air mask or perform his job duties. His breathing improved, but he did not fully recover. He continues to use medications (Symbicort and two different inhalers) on a regular basis.

Page 7

In approximately 1974, while working for Malden Fruit Market, Employee was training a new driver and was involved in a motor vehicle accident. Employee injured his neck. He received conservative treatment including pain pills, muscle relaxers, and he wore a C-collar for six to eight weeks. After the accident, he continued to experience stiffness and pain in his neck. When he went to work for Malden Housing authority, his neck pain increased with certain activities. Using a hedge trimmer or weed eater caused stress on his neck. His doctors told him to be careful with repetitive activities.

In the 1970s, Employee was involved in a non-work-related motor vehicle accident that left a scar on his head and caused a re-injury to his neck. He was treated with steroid shots and medications. He was put in a C-collar again. Employee testified that after this accident, his neck symptoms were about the same as before. He continued to experience stiffness and his neck did not move as well.

In approximately 1976, Employee sustained a non-work-related injury to his right knee. He had some torn cartilage that was removed surgically. After completing treatment, his right knee was weaker and caused him problems "now and then."

Employee testified that he re-injured his right knee in approximately 1998 while working at the scene of a motor vehicle accident for the Malden Fire Department when his right foot got stuck in the mud in a ditch. There is no record of a report of injury or a claim for compensation being filed with the Division of Workers' Compensation regarding this accident. Employee was evaluated by Dr. Michael Trueblood for complaints of locking and catching in his right knee and the mechanism of injury was listed as "truck off in ditch in the mud-while in the ditch knee deep in-the knee popped; swelling." Dr. Michael Trueblood diagnosed a medial meniscus tear and performed arthroscopic right medial meniscectomy on February 24, 1998. Employee's right knee was weaker after this surgery. As a result of this injury, he used his left leg more when working on his hands and knees. It took him longer to perform his handyman jobs, and he declined to perform some jobs that required crawling on his hands/knees. Instead, he referred those jobs to his sons, who worked for him. When he went to work for the Malden Housing Authority, his right knee continued to slow him down. His right knee slowed him down at subsequent jobs and he found it hard to get down on his knees when working on the school buses. He had problems standing on a ladder, developed a limp, and avoided steps. If he does use stairs, he has to walk one step at a time.

On September 23, 2009, while working for Gideon School District, Employee reinjured his right knee while working on a ladder. The ladder slipped, causing him to lose his footing, and he twisted his knee. The injury was accepted as compensable and his employer provided benefits. He was referred to Dr. Milne who diagnosed a right knee medial meniscus tear and chondromalacia and performed a right knee partial medial meniscectomy with chondroplasty. He was released at MMI on March 23, 2010, and Dr. Milne assigned a rating of 4 % permanent partial disability attributable to his work injury and 0 % permanent partial disability attributable to his preexisting condition. Employee testified that the surgery alleviated his pain but his knee

**Injury No. 16-025639**

became weaker. After this surgery, he could hardly get down on his right knee at all. Employee settled his claim for workers' compensation against Employer for 15% of the right leg.

In approximately 2007, Employee injured his back while working for Risco School District. He was moving a file cabinet with a dolly when it tipped and he hurt his low back while trying to catch it. A report of injury was filed with the Division of Workers' Compensation. Employee's medical records are not part of this record; however, he testified he was evaluated by Dr. Kee Park, who recommended a fusion. He sought a second opinion with Dr. Tolentino and he agreed with Dr. Park. The workers' compensation insurer sent him for a third opinion and he underwent injections. He had approximately six weeks of therapy. He testified that workers' compensation paid for this treatment. After he was released from treatment, he no longer did any heavy lifting and experienced numbness in his thighs and the tops of his legs, right worse than left. He continued to work but could no longer weed eat or mop. His back tightened up with sitting and standing and he had to alternate positions every 15-20 minutes. Muscle spasms made it harder to work. He had an achy pain all the time. His pain was worse with lifting or repetitive motion. He did not receive a settlement.

Employee reinjured his back on January 22, 2015, while unloading a truck while working for Gideon School District. He was diagnosed by Dr. James Coyle with an acute lumbar strain superimposed on degenerative disc disease with annular tears at L4-5 and L5-S1. Dr. Coyle opined his work accident was the prevailing factor in causing his condition. He further opined Employee was not a surgical candidate and recommended conservative care. Employee underwent physical therapy, an epidural steroid injection and a trigger point injection. He was released at MMI by Dr. Andrew Wayne on April 7, 2015. Dr. Wayne assigned a rating of 2% permanent partial disability of the whole person attributable to the January 22, 2015 work accident. He opined that none of that disability was attributable to his preexisting condition. Employee settled his claim with Employer-Insurer for 11.4% body as a whole, referable to his low back. His low back symptoms remained about the same except the numbness in his leg happened more frequently after this accident.

In 2012 he sustained an injury to his right index finger while working for Gideon School District. He was trying to get a locker door unstuck and he dislocated his right index finger. He was diagnosed with a radial collateral ligament injury and Dr. Deisher surgically repaired two torn ligaments in his finger. Dr. Deisher placed him at MMI on September 19, 2012, and assigned a rating of 20% permanent partial disability of the right index finger. Although surgery helped him regain mobility in his finger, he cannot make a full fist with his index finger and he has loss of feeling in the fingertip. He did not use his right hand as much after this injury and could no longer hold wrenches and hammers. He had problems gripping. He compensated by using his left hand more. Employee settled his claim against Employer-Insurer for 35% of the right index finger and five weeks disfigurement. He subsequently settled a claim against the Second Injury Fund that was based on 35% of the right finger and 15% of the right knee¹ for the

¹ It is unknown why the settlement references the right knee as part of the primary injury. The evidence supports that the 2012 accident resulted in injury to the right index finger and did not include injury to the right knee.

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**Injury No. 16-025639**

Primary injury and preexisting disabilities of 15% of the right knee (2009), and 10% of the right knee (1975 and 1998) and a 10% load factor.

Employee has a history of three strokes occurring in 2008, 2013, and 2015. Following the 2008 stroke, Employee underwent a right carotid endarterectomy with pericardial vascular patch on January 9, 2009. Following the stroke in 2013, he developed dizziness, balance problems, and problems focusing that were affecting his ability to work. He attended physical therapy to address these problems. Following the 2015 stroke, he underwent a redo carotid endarterectomy with bovine path angioplasty on June 12, 2015.

Regarding his left shoulder, Employee experiences weakness and pain in his joint. He has a sharp stabbing pain with certain movements. His shoulder joint is achy, especially with cold damp weather. He cannot raise his arm over his head very long. He has difficulty reaching behind his body so his wife helps him put his belt on. He cannot lift anything over 10 pounds out in front of him. He can lift up to 20 pounds at his side. His left shoulder is considerably weaker compared to his right side. His grip strength on his left upper extremity is half as much as it was compared to before the last work injury.

Regarding his neck, he has stiffness and achiness at times. The stiffness is worse in the morning.

His low back is weaker than it used to be. He has achiness in the morning in his right lower back at belt level. The pain spreads across his back. He continues to be limited to approximately 15-20 minutes on his ability to sit and stand. He must alternate positions. He must be careful when bending to pick items up. He continues to have occasional numbness and burning in his thighs.

His breathing is progressively getting worse and he gets winded easily. His breathing is affected by the weather and he cannot go outside in extreme temperatures. He mostly stays inside his house. He continues to use a nebulizer approximately three times per day as well as other inhalers.

With regard to his right hand, he has difficulty getting a good grip because he cannot close his right index finger all the way to hold on to anything. He also has pain in the knuckle joint of his right index finger.

Employee struggles to get up in the morning because of his knee, back, neck, hand, and shoulder. Before the accident he liked to go bank fishing, but he can no longer get up and down the bank. He used to shoot pool, but now it hurts his back to play and his right hand problems impact his ability to play. Around the house, his wife does most of the chores and his son-in-law or grandkids perform the yard work. He tries to help when he can by vacuuming. He cannot dust because it affects his breathing. He tries to mop but has to sit down because it hurts his back. He

**Injury No. 16-025639**

is not completely inert. He feeds himself. His primary difficulty is with bending and lifting. His wife babysits their grandchildren, but he is unable to pick them up as they all weigh over 30 pounds.

I find Employee's testimony at hearing was credible.

Employee was evaluated by Dr. David Volarich for purposes of an Independent Medical Evaluation on July 25, 2018. For the April 14, 2016 injury, Dr. Volarich diagnosed rotator cuff tears, impingement and labral injuries to the left shoulder. He opined that Employee had sustained a 45% permanent partial disability of the left shoulder as a result of the April 14, 2016 work injury.

Preexisting the April 14, 2016 injury, Dr. Volarich assessed Employee as having a 50% permanent partial disability of the right knee requiring two arthrotomies and arthroscopy; a 30% permanent partial disability of the body as a whole for the pulmonary system due to his asthma, COPD, and sleep apnea; a 25% permanent partial disability of the body as a whole at the lumbar spine due to Employee's lumbar syndrome from disc protrusions and annular tears at L4/5 and L5/S1; a 25% permanent partial disability of the body as a whole at the cerebrovascular system due to stenosis of the internal carotid that required endarterectomies in 2009 and 2015; and a 20% permanent partial disability of the right hand due to the tear in the right index collateral ligament. Dr. Volarich opined that the preexisting injuries were a hindrance or obstacle to employment before April 14, 2016. Dr. Volarich did not diagnose or rate Employee's cervical spine.

Dr. Volarich opined that the preexisting and primary work injuries combined to create a greater overall disability due to the multiple body areas that were now limited. He opined that Employee was permanently and totally disabled due to a combination of the April 14, 2016 work injury and his preexisting medical conditions. He prescribed numerous restrictions for the primary left shoulder injury and preexisting injuries to Employee's right knee, low back and breathing. No restrictions were prescribed for Employee's heart condition or right hand. Dr. Volarich testified that if the cerebrovascular condition was removed from consideration it would not change his opinion that Employee was permanently and totally disabled.

I find Dr. Volarich's opinions and testimony credible.

Susan Shea evaluated the Employee on October 9, 2018, to evaluate his ability to work. She reviewed the history of Employee's work-related injury and his pre-injury job duties for the Gideon School District. She recorded that after his left shoulder surgery, Employee had been released to return full duty but he wasn't physically able to do the work and finished the job doing transportation scheduling.

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**Injury No. 16-025639**

Ms. Shea noted Employee's preexisting injuries and the limitations caused by those injuries. Regarding Employee's residual functional capacity, Ms. Shea noted that Dr. Volarich provided several physical restrictions for Employee's upper and lower extremities and low back. She stated that Employee had left school in the 11th grade, but had subsequently obtained a GED and that he had remained steadily employed since then performing "physically active work." Ms. Shea also stated that Employee was in his 60s and that an employer would not be apt to employ someone in their 60s that would require extensive retraining or re-educating.

In her conclusions, Ms. Shea opined that that Employee was "just not physically able to work" and he had only performed "physically demanding work during his vocational career." Ms. Shea focused on his limitations limiting the amount of weight he can handle and the requirement that he change positions often due to his orthopedic conditions as being incompatible with work. Ms. Shea opined that Employee was not employable in any work as it is typically performed in the national labor market, and that no employer would hire Employee in his present condition reasonably expecting him to perform the work for which he is hired. Ms. Shea believed that this was due to Employee's numerous orthopedic injuries to his upper extremity, knee, and low back. If Employee did not have cardiovascular issues, it would not change her opinion that Employee was unemployable in the open labor market. On cross-examination, Ms. Shea clarified that her opinion regarding permanent and total disability considered Employee's work-related injuries and the orthopedic injuries.

I find Ms. Shea's opinions and testimony to be credible.

There is a dispute between the parties as to whether the Second Injury Fund is liable for permanent total disability benefits. Employee submits that he is no longer able to compete in the open labor market and is permanently and totally disabled due to a combination of his April 14, 2016 injury and preexisting injuries to his right knee, pulmonary system/lungs, and low back.

The evidence clearly supports a finding that Employee is permanently and totally disabled; however, after careful consideration, I must conclude Employee is not entitled to permanent and total disability benefits from the Second Injury Fund for the following reasons:

I find that Employee has no medically documented disabilities that fall under categories i., iii. or iv. of Section 287.020.3(2)(a)a RSMo.

Although Employee testified and a report of injury confirms that he sustained a chemical exposure at work in 2000, I find Employee did not meet his burden of proof that he sustained compensable injury as defined in section 287.020. Pursuant to the version of Section 287.020 in effect in 2000², Employee had the burden to prove that work was "a substantial factor" in

---

² Section 287.220.3(2) (a) a. ii. is silent as to whether an injury must be compensable per the version of 287.020 in effect at the time of the subsequent compensable injury or at the time the preexisting injury occurred. [I]t is a well-established principle that the law in effect on the date of the injury governs a claim under the Workers' Compensation Law. *Pavia v. Smiley's Supermarket*, 366 S.W.3d 542, 549 (Mo. App. S.D. 2012).

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**Injury No. 16-025639**

causing "the resulting medical condition or disability." Dr. Volarich provided an opinion that Employee had a 30% disability to his pulmonary system due to asthma, COPD, and sleep apnea, but he did not address whether the chemical exposure at work was a substantial factor in causing those conditions and the resultant disability. I find there is insufficient evidence in the record to meet Employee's burden of proof. I further find Employee did not meet his burden of proof that his multiple smoke and chemical exposures while working for Malden Fire Department resulted in compensable injuries.

Although Employee testified he sustained a work-related injury to his cervical spine in 1974, I find that Employee has not met his burden of proof that he sustained a minimum of fifty weeks of permanent partial disability referable to his this injury. Employee's 1974 cervical injury was not addressed by his medical expert, Dr. Volarich, in his report or testimony. Further, his subsequent cervical injury was a non-work-related injury and therefore does not meet the requirements of Section 287.020.3 RSMo.

I find that Employee's 1976 right knee injury was a non-work-related injury and therefore does not meet the requirements of Section 287.020.3 RSMo.

Although Employee testified that he injured his right knee at work in approximately 1998, the evidence is insufficient to support a finding that the 1998 accident was a substantial factor in causing Employee's right knee condition or any of Dr. Volarich's assigned disability rating of 50% of the knee. There is no record of a treating doctor or medical expert addressing medical causation as it pertains to this accident. I find Employee did not meet his burden of proof that this was a compensable injury as defined in the version of section 287.020 in effect at the time of injury.

I find, based on the testimony, medical evidence, and Employee's prior stipulation for compromise settlement, Employee has a medically documented preexisting disability of 15% of his right knee (24 weeks) that was a direct result of a compensable injury (on 9/23/2009) as defined in section 287.020. This disability does not satisfy the requirements of Section 287.020.3(2)(a)a because the disability equals less than fifty weeks of compensation.

Although Employee testified and a report of injury confirms that he sustained an injury to his lumbar spine at work in 2007, the evidence is insufficient to support a finding that the 2007 accident was the prevailing factor in causing Employee's back condition or any of Dr. Volarich's assigned rating of 25% of the body as a whole. There is no record of a treating doctor or medical expert addressing medical causation as it pertains to this accident. I find Employee did not meet his burden of proof that he sustained a compensable injury as defined in section 287.020.

I find, based on the testimony, medical evidence, and Employee's prior stipulation for settlement, that Employee has a medically documented preexisting disability of 11.4% of the body as whole referable to the lumbar spine (45.6 weeks) that was a direct result of a compensable injury (on 1/22/2015) as defined in section 287.020. This disability does not satisfy the requirements of Section 287.020.3(2)(a)a because the disability equals less than fifty weeks of compensation.

Page 13

I find, based on the testimony, medical evidence, and Employee's prior stipulation for settlement, that Employee has a medically documented preexisting disability of 35 % of the right index finger that was a direct result of a compensable injury (on $3 / 19 / 2012$ ) as defined in section 287.020. This disability does not satisfy the requirements of Section 287.020.3(2)(a)a because the disability equals less than fifty weeks of compensation.

I find that Employee has a medically documented preexisting disability to his cerebrovascular system that does not meet the requirements of any of the categories for Second Injury Fund liability.

Given the findings set forth above, I find that Employee has no qualifying disabilities for Second Injury Fund liability. Employee's claim against the Second Injury Fund is denied because his evidence fails to satisfy the standard set forth under Section 287.220.3 RSMo.

In light of the above findings, Issue 2 is moot and is not ruled upon.

Made by:


I defiered 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 $\qquad$