Missouri statute § 287.220 creates the Second Injury Fund. Section 287.220.2 applies to injuries occurring prior to January 1, 2014, and provides when and what compensation will be paid by the Fund in "all cases of permanent disability where there has been previous disability." Id. This section provides, in pertinent part:
. . If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation, or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, . . . receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury, or if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of the employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. . .
Administrative Law Judge John K. Ottenad found that employee met the threshold of a minimum of fifty weeks of compensation based on Dr. David Volarich's assessment of permanent partial disability related to employee's preexisting insulin-dependent diabetes mellitus, causing diabetic peripheral neuropathy, retinopathy and Charcot foot formation. Based on the totality of the evidence, the administrative law judge found that employee had preexisting permanent partial disability of 37.5 % of the body as a whole (150 weeks) referable to his diabetes and related conditions. Adding a loading factor of
12.5 %, the administrative law judge awarded 23.398 weeks of permanent partial disability against the Second Injury Fund.
The administrative law judge rejected the Second Injury Fund's argument that employee's diabetes-his only alleged preexisting disability-failed to meet the threshold set out in $\S 287.220 .2$ because the condition had not reached maximum medical improvement prior to employee's January 1, 2013, primary injury and therefore did not constitute a permanent preexisting condition as required by the statute.
A permanent partial disability claim pursuant to $\S 287.220 .2$ requires an employee to prove:
- That he incurred a compensable injury that resulted in a permanent partial disability;
- When employee's compensable injury occurred he had a preexisting permanent partial disability of such seriousness as to constitute a potential hindrance or obstacle to employment or re-employment;
- That employee's preexisting disability meets statutory thresholds;
- That the compensable injury and the preexisting disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently.
Winingear v. Treasurer of State - Custodian 2d Injury Fund, 474 S.W.3d 203,208 (Mo. App. 2015).
"Permanent partial disability" means a disability that is permanent in nature and partial in degree. See § 287.190.6. A disability is permanent when further medical improvement is no longer expected, also known as MMI. Cardwell v. Treasurer, 249 S.W.3d 902,910 (Mo. App. 2008); see also Hoven v. Treasurer, 414 S.W.3d 676 (Mo. App. 2013); Miller v. Treasurer, 425 S.W.3d 218 (Mo. App. 2014).
The employee herein failed to establish that his preexisting condition of diabetes was permanent in degree prior to his January 1, 2013, primary injury because he underwent significant treatment for his diabetic condition after that date. Dr. Victoria Jansen characterized employee's diabetes as "uncontrolled" at numerous appointments, including May 18, 2012, July 6, 2012, and August 28, 2012. Dr. Jansen did not identify employee's diabetes as "controlled" until after the primary injury, on February 22, 2013. Thus, employee's diabetic condition did not reach a point of stability until after his primary injury. Furthermore, employee was not diagnosed with Charcot foot in his left foot, due to peripheral neuropathy, until May 13, 2013. This condition raised the prospect, discussed by Dr. Nicholas Martin, of future surgery to remove parts of bone in employee's left foot and even potential amputation. Because employee's left Charcot foot condition was not even diagnosed at the time of employee's primary injury and progress was expected for years following, his diabetic condition was not at MMI on the date of his primary injury.
Employee also began treatment for his diabetic retinopathy after his primary occupational disease. Employee's diabetic retinopathy was not diagnosed until July 19, 2013. The medical evidence demonstrates that employee experienced substantial improvement in his vision from Lucentis injections resulting from significant treatment after his primary injury.
All of the conditions associated with employee's diabetes eventually reached a point of stability where treatment to maintain his condition was required, but this did not occur prior to employee's primary injury.
The administrative law judge ruled that Hoven and Miller, supra, are not controlling because 1) employee's primary injury was an occupational disease and his preexisting disability was a condition rather than an injury; and 2) employee's preexisting disability was not an open workers' compensation claim.
In Hoven, supra, the court held that a preexisting condition can only be considered for Second Injury Fund liability in a permanent partial disability claim if it is at MMI prior to the date of an employee's primary injury. Hoven, at 681. The issue in Hoven was whether the employee had a preexisting permanent partial disability that was permanent when the primary injury was sustained. Id., at 678. Hoven relied on the holding in Cardwell that the level of permanent disability associated with an injury cannot be determined until it reaches a point of MMI, that is, the point at which further medical improvement cannot be reached. Hoven denied Second Injury Fund benefits because employee's preexisting disability was not at MMI. In Miller, supra, the court applied the same principle to a similar set of facts and again denied Second Injury Fund benefits for a preexisting disability that was not at MMI.
We hold that the administrative law judge improperly found both Hoven and Miller distinguishable and not determinative of the outcome of the case at hand. The administrative law judge urges that imposing the Hoven and Miller standard on a preexisting condition that was not an injury did not make sense. He reasoned that a condition such as diabetes may become a disability at the onset of symptoms or the diagnosis of the condition and that a condition like diabetes often does not have a "definitive end" to treatment. Award, p. 14.
But, permanency can be found even if the preexisting disability is not an injury. In Hoven, the employee's preexisting disability was carpal tunnel syndrome. An expert testified that the employee's preexisting carpal tunnel syndrome was not at MMI prior to the primary injury and that it "might benefit from further treatment, including possibly more surgery." Id., at 679. Another expert also testified that the employee's carpal tunnel syndrome was not at MMI and would need further evaluation and surgery. This same expert performed bilateral carpal tunnel releases years after employee's primary injury. The Hoven court upheld the Commission's finding that employee's preexisting carpal tunnel syndrome was not at MMI cased on the testimony of the experts. The court ultimately held that because the preexisting condition was not at MMI at the time of the employee's primary injury that the preexisting carpal tunnel syndrome could not
be considered in calculating Second Injury Fund liability for the permanent partial disability claim.
The administrative law judge contends that the standard of permanency developed in Hoven and Miller cannot be applied to preexisting conditions or diseases because they do not alway