James Swafford v. Waller Truck Company, Inc.

(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 workrelated 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 workrelated 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[.]

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 concluded that employee had no preexisting disability that met the requirements of 287.220 .3 . He found that employee's prior shoulder condition did not reach the threshold of fifty weeks, based on employee's expert's rating of that condition at 10 % at the 232 -week level. He noted that employee's prior cardiac condition and ankylosing spondylitis on the other hand, each rated at 25 % of the BAW (100 weeks), exceeded the fifty-week threshold but found that these conditions failed to qualify as preexisting disabilities under 287.220 .3 because neither resulted from a compensable work injury, a military related disability, or an injury to the opposing extremity, and there was "no medical evidence that either condition directly or significantly aggravated the primary right shoulder injury (emphasis added)." 1

[^0]

[^0]: ${ }^{1}$ Award, p. 8.

Improvee: James Swafford

-3-

Employee's timely application for review alleged in part that the administrative law judge erred in that he arbitrarily disregarded and ignored Dr. Erich Lingenfelter's opinion that employee's preexisting heart condition and ankylosing spondylitis aggravated injuries resultant from employee's October 6, 2017, work related fall.

The Second Injury Fund contends that employee may not rely on Dr. Lingenfelter's April 18, 2018 report and records of Dr. Kent Huston in his appeal to the Commission because employee did not use the documents "as his evidence in his case in chief".[^2] The Second Injury Fund asserts that because employee failed to properly submit Dr. Lingenfelter's report pursuant to 287.210.5 as a "complete medical report" in compliance with 287.210.7, the report constitutes inadmissible hearsay and does not qualify as competent and substantial evidence. The Second Injury Fund alternatively argues that, "[N]either Dr. Lingenfelter nor Dr. Huston ever definitively opined that any of claimant's pre-existing conditions significantly and directly aggravated the primary injury."[^3]

Employee's attorney offered Dr. Lingenfelter's report and Dr. Huston's records at hearing as Claimant's Exhibits 6 and 17. At that time, the Second Injury Fund's attorney specifically stated "No objection" in response to both exhibits.[^4] We find the administrative law judge properly made these documents a part of the record and that Dr. Lingenfelter's report and Dr. Huston's records therefore constitute competent evidence in this case.

We find that Dr. Lingenfelter's vaguely worded report, referencing employee's ankylosing spondylitis and hypertrophic cardiomyopathy as preexisting pathology that contributed to employee's right shoulder condition, and Dr. Huston's treatment records, documenting employee's complaints of pain in his neck and right shoulder after his work injury, fall short of establishing, as a factual matter, that employee's ankylosing spondylitis and hypertrophic cardiomyopathy significantly and directly aggravated his primary injury.

The administrative law judge provided detailed factual findings and explained his view of the opinion evidence. Other than our affirmative findings regarding the issue of admissibility of Dr. Lingenfelter's opinion and Dr. Huston's records and our more expansive discussion relating to statutory interpretation of § 287.220.3, we otherwise agree with the administrative law judge's findings and conclusions with regard to the issues involved in this appeal.

Because we resolve this appeal based on a finding that the employee failed to establish, as a threshold issue, any qualified preexisting disability pursuant to § 287.220.3(2)(a) we do not consider additional issues discussed in the parties' briefs involving application of § 287.220.3(2)(b).[^5]

[^2]: Brief of Respondent Treasurer, p. 10.

[^3]: Id., p. 18.

[^4]: Transcript, pp. 4, 7.

[^5]: We note the Supreme Court of Missouri recently provided new guidance relating to statutory interpretation of § 287.220.3(2)(b) in Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker, SC98704 (April 20, 2021).

Employee: James Swafford

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

The award and decision of Administrative Law Judge Mark S. Siedlik is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 17th \qquad$ day of May 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Reid K. Forrester, Member

DISSENTING OPINIONG FILED

Shalonn K. Curls, Member

Attest:


I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole, relevant provisions of the Missouri Workers' Compensation Law and judicial precedent.

I concur with the majority's decision to the extent it finds orthopedic surgeon Dr. Erich Lingenfelter's report and treatment records of employee's rheumatologist, Dr. Kent Huston competent evidence in this appeal. I disagree with the majority's finding that this evidence is insufficient to support a finding that employee's preexisting ankylosing spondylitis and hypertrophic cardiomyopathy directly and significantly aggravated disability to employee's right shoulder and right elbow resultant from the October 6, 2017, primary work injury.

The Missouri Workers' Compensation Law does not define the terms "aggravate" and "accelerate." "When a term is not defined the application of 'the plain and ordinary meaning of a statute's words' is the 'north star' of statutory interpretation." State v. Missouri Dept. of Corr., 572 S.W.3d 531, 537 (Mo. App. 2019). "When a term is not defined, the legislature is not held to a technical meaning, but rather reference is made to the dictionary to find the meaning the legislature intended." Fisher v. Waste Mgmt.of Mo., 58 S.W.3d 523, 526 (Mo. 2001).

The employer sent employee to Dr. Lingenfelter, an orthopedic surgeon, for evaluation of his right shoulder. Dr. Lingenfelter made the following entry in his IME report:

The labral tear has been present and has existed since 2012 which is confirmed by previous MRIs. This did not happen acutely and quite frankly labral tears in this age group do not even get fixed. At the most they sometimes get debrided but I do not believe this is his pain generator. I think he has AC joint arthropathy and mechanical impingement both from a fall as well as his pre-existing AS. He has history reports that this was somewhat more of a sentinel event that changed his function however there is no detectable signs of a rotator cuff tear on MRI and a partialthickness tear typically would not cause this degree of weakness. I think he does now have inflammatory bursitis as a result of the fall and that fall is the sentinel event and primary prevailing factor for his inflammatory bursitis and AC joint arthropathy however at present he is a poor surgical candidate and has issues such as hypertrophic cardiomyopathy and other significant medical issues that would make him be a very poor surgical candidate and I would not advise doing anything about this anyway at this point or likely ever. [Of] . . . equal share to blame is his current autoimmune situation. Because of his spine issues his scapula is now postured in a position that cannot elevate and protract regularly in order to allow more room for the supraspinatus outlet. This creases impingement phenomenon as well so this is also likely equal[ly] a contributing factor. . . . In summary he has significant preexisting pathology and some things that are equally contributing to his issues however the sentinel event that created the chronic inflammatory bursitis which I might add is likely

exacerbated by his disease process could be treated with cortisone and a round of therapy but no further treatment on top of that. [emphasis added] ${ }^{1}$

Additionally, Dr. Lingenfelter's IME report notes that employee has "relatively good painfree range of motion of left side but it is also limited because of the scapular posturing which is likely a manifestation of his ankylosing spondylitis." ${ }^{2}$ He added that Mr. Swafford "has limited ability to protract or move his scapula in a coordinated position", and that he "has extremely poor posture likely not his fault because his spine is probably fused at this point or close to that." ${ }^{3}$

Dr. Lingenfelter's IME report demonstrates that employee's preexisting ankylosing spondylitis makes his right shoulder injury significantly worse. He explained how the ankylosing spondylitis prevented employee's scapula from functioning properly, which, in combination with the work injury, significantly contributed to the impingement phenomenon in the right shoulder. Dr. Lingenfelter expressly stated that employee's inflammatory bursitis from the shoulder injury was exacerbated by the preexisting disease process. Dr. Lingenfelter also confirmed that the effects of Mr. Swafford's shoulder injury are made worse by the fact that employee is not a surgical candidate due to his preexisting heart condition.

Dr. Lingenfelter opined that the effects of the shoulder injury employee suffered related to his October 6, 2017, work accident were significantly worse due to employee's preexisting ankylosing spondylitis. The October 6, 2017, injury would not have been as bad, as serious, or as severe as it was without the ankylosing spondylitis.

Dr. Lingenfelter's belief—as an orthopedic surgeon—was that Mr. Swafford's pain, weakness, and limitations were coming from both the work injury and the ankylosing spondylitis.

Additionally, employee's treatment records from his rheumatologist, Dr. Huston, support Dr. Lingenfelter's conclusions that employee's ankylosing spondylitis was a significant contributor to employee's shoulder problems, including shoulder pain and loss of motion. Employee started treating with Dr. Huston in 2015 for ankylosing spondylitis. He complained to Dr. Huston about right shoulder pain, beginning in January 2016. At that point, Dr. Huston's examination revealed full range of motion of the shoulders and elbows, and good grip strength bilaterally. By March 2017, employee reported to Dr. Huston's nurse practitioner that he was having pain in his right shoulder and right elbow and her examination revealed right shoulder pain with decreased range of motion. He received steroid injections in his right shoulder and right elbow. On October 18, 2017, employee reported to Dr. Huston's nurse practitioner that he was noticing more pain in his neck and right shoulder, and his physical examination showed decreased range of motion in the right shoulder with pain. Employee received another injection in his right shoulder.

[^0]

[^0]: ${ }^{1} Transcript, p. 1804.

{ }^{2} Id., p. 1803.

{ }^{3}$ Id., p. 183.

The rheumatology records show that employee's ankylosing spondylitis had progressed to the point before his work injury where it was impairing the range of motion in his right shoulder and causing right shoulder pain. However, he was still able to work as a hostler. The shoulder problems caused by the ankylosing spondylitis aggravated the work injury by making his shoulder worse and rendering him unable to continue his work as a hostler.

Dr. Brent Koprivica's opinions do not contradict or dispute Dr. Lingenfelter's opinions about the interaction between employee's preexisting disabilities and his work injury. In analyzing the case under $\S 287.220 .2$, Dr. Koprivica did not specifically express an opinion about whether employee's preexisting disabilities directly and significantly aggravated or accelerated employee's work injury. However, Dr. Koprivica did not deny or refute Dr. Lingenfelter's conclusion despite specifically referencing Dr. Lingenfelter's notes in his report.

Several of Dr. Koprivica's opinions support the conclusion that employee's preexisting disabilities aggravated his work injury by making the effects of that injury worse, more troublesome, and more burdensome than it would be without the preexisting disabilities. Dr. Koprivica stated that, "[W]hen one looks at the impact of combining the significant preexistent industrial disabilities that I have identified with the additional disability attributable to the October 6, 2017, work injury claim, there is significant synergistic effect [emphasis added]." ${ }^{4}$ He added, "[N]oting that Mr. Swafford has not successfully returned to the open labor market since the October 6, 2017, work injury, noting the level of disability which he presents from the combination of the multiple disabilities, there are concerns that Mr. Swafford is, in fact, permanently and totally disabled." Id. [emphasis added]. Dr. Koprivica's report notes, "[T]he level of significance of his thoracic and lumbar pain represented an ongoing permanent obstacle to reemployment for job tasks requiring any significant amount of bending, pushing, pulling, twisting and heavier lifting and carrying [emphasis added]."5 He stated, "[t]here is contribution to the restrictions I would place regarding right shoulder from preexistent industrial disability." ${ }^{6}$

Dr. Koprivica confirmed that employee's ankylosing spondylitis and heart condition each constituted preexisting permanent partial disability of twenty-five percent permanent partial disability to the body as a whole, which exceeds the threshold of fifty weeks required by section 287.220.3(2)(a)a.

Dr. Lingenfelter's uncontroverted and unimpeached IME report, along with the support of Dr. Huston's treatment records and Dr. Koprivica's report provide strong medical evidence that these preexisting disabilities directly and significantly aggravated or accelerated disability attributable to employee's work injury.

In this case, Dr. Lingenfelter's IME report establishes that employee's preexisting ankylosing spondylitis directly and significantly aggravated and accelerated the right

[^0]

[^0]: 4 Transcript, p. 243

5 Id., p. 232.

${ }^{6}$ Id., p. 242

Improvee: James Swafford

upper extremity injury he suffered at work. It is undisputed that the preexisting ankylosing spondylitis exceeds fifty weeks of permanent partial disability.

Notably, until his October 6, 2017, work injury, employee was able to work as a hostler within the restrictions imposed by his preexisting disabilities. The injury to his right upper extremity at Waller Truck Company, Inc. not only closed the door on his ability to do that job, but it also closed the door on any other job that might be available in the open labor market, including jobs in retail sales and as a cashier because those jobs require use of his right upper extremity which exceed his medical restrictions. Employee is therefore permanently and totally disabled.

Employee's ankylosing spondylitis and heart condition each exceed the fifty-week minimum on their own. Those conditions satisfy the requirement that there be "a medically documented preexisting disability equaling a minimum of fifty weeks." As explained above, those conditions aggravated and accelerated employee's October 6, 2017, right shoulder injury.

The administrative law judge's award denying compensation based on a finding that employee had no qualifying preexisting disabilities pursuant to $\S 287.220 .3$ is against the weight of the evidence in this case.

Because the majority holds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

FINAL AWARD

AS TO SECOND INJURY FUND ONLY

Employee: James Swafford

Injury No. 17-085909

Dependents: N/A

Employer: Waller Truck Company, Inc. (Settled)

Self-Insurer: Missouri Employers Mutual Insurance Company (Settled)

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: November 21, 2019

Checked by: MSS/lh

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No.

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

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

1. Date of accident or onset of occupational disease: October 6, 2017.

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

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

1. Did employer receive proper notice? Yes.

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

1. Was Claim for Compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was exiting a truck and injured his right shoulder.

WC-32-R1 (6-81)

Page 1

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

1. Did accident or occupational disease cause death? No. Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Right shoulder.
3. Nature and extent of any permanent disability: Unknown.
4. Compensation paid to-date for temporary disability: -0 -
5. Value necessary medical aid paid to date by employer/insurer? $\ 3,764.80
6. Value necessary medical aid not furnished by employer/insurer? N/A
7. Employee's average weekly wages: $\ 857.58
8. Weekly compensation rate: $\$ 571.72 / \ 483.48
9. Method wages computation: By stipulation.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: None.

TOTAL: -0 -

1. Future requirements awarded: N/A

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

Employee: James Swafford

Injury No. 17-085909

Dependents: N/A

Employer: Waller Truck Company, Inc. (Settled)

Self-Insurer: Missouri Employers Mutual Insurance Company (Settled)

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: November 21, 2019

Checked by: MSS/lh

This case comes on for hearing before Administrative Law Judge Siedlik in Kansas City, Missouri on November 21, 2019. The Claimant, James Swafford, who was present with his counsel Mr. Edward Murphy. The Second Injury Fund was represented by their counsel Ms. Maureen Shine. This case is previously settled with the employer and insurer.

This case involves injuries alleged on or about the 6th day of October 2017 when the Claimant alleged that while in the employ of Waller Truck Company, Inc., he sustained injuries by accident and/or an occupational disease while in the course and scope of his employment in Kansas City, Kansas. At the time of the injury the parties were subject to the Missouri Worker's Compensation Law and the employer's liability insured by Missouri Employers Mutual Insurance. The parties had notice of the injury and claims were timely filed.

The parties agree to an average weekly wage of 857.58, and a compensation rate of 571.72 over 483.48. There were no weekly benefits paid and medical expenses of 3,764.80 have been paid.

This case having previously settled with the employer and insurer, leave for determination today liability of the Second Injury Fund.

On October 6, 2017, Mr. Swafford was injured while working as a hostler at Waller Truck Company. Mr. Swafford was climbing down out of his truck, slipped, and was hanging by his arm and felt something pop. The entirety of the Claimant's weight was hanging by his right arm. Mr. Swafford experienced pain in his right shoulder due to the physical cranking requirements of his job, which required him to hook and unhook commercial trailers with a hand crank many times over the course of the work shift. Mr. Swafford suffered from an injury to his right shoulder and right elbow on October 6, 2017.

The Claimant attended a previously scheduled medical visit on October 8, 2017 with the Center for Rheumatic Disease and the Center for Allergy in Immunology as a follow-up to his ankylosing spondylitis. The Claimant was noted to have right shoulder pain and very limited range of motion associated with a work injury, and a Depo Medrol injection was administered.

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

On October 20, 2017, Mr. Swafford was examined at Corporate Care. An x-ray of the right shoulder was negative for acute finding. The Claimant was seen in follow-up care on October 23, 2017, and was noted to have inflammation in the lateral right elbow. There was limited range of motion of the right shoulder with pain and a right rotator cuff tear was suspected. Right elbow pain and neck strain were also noted. MRI scans in the right elbow and right shoulder were recommended.

Claimant was seen on October 31, 2017 by Dr. Hutchison. An MRI scan of the right shoulder was performed on November 4, 2017, and it revealed a partial thickness rotator cuff tear involving the supraspinatus tendon along with labral tear.

On April 18, 2018, Dr. Lingenfelter evaluated the Claimant and noted the Claimant suffered from a partial thickness tear in his right shoulder and recommended cortisone injections or physical therapy. There was no further treatment provided for this work injury.

Claimant suffers from a pre-existing spine condition known as ankylosing spondylitis. This condition is well documented in the Claimant's medical records. Claimant began to develop symptoms as a young man, experiencing pain in the back and ribs for decades. Claimant sought treatment through muscle relaxers and pain relievers as well as oral prednisone and steroid injections without relief. The Claimant has had symptoms of pain for most of his adult life. Dr. Koprivica performed several tests on the Claimant noting limitation on his range of motion including cervical and lumbar flexion in the spine. Dr. Koprivica also noted bilateral sacroiliac pain.

The Claimant's spine condition causes him difficulty performing activities of daily living specifically dressing, which causes severe pain. The Claimant testified he cannot lie flat as a result of this condition. Over the years, portions of the Claimant's spine fused together and this condition will continue into the future. This condition causes the failure to expand and contract of the rib cage when breathing and further causes curvature of the cervical spine.

Dr. Lingenfelter noted the Claimant's decreased range of motion in the right shoulder and also found decreased range of motion present as a result of scapular posturing which is a "manifestation of his ankylosing spondylitis". Dr. Lingenfelter noted the Claimant has a limited ability to protract or move his scapula in a coordinated position and his posture is increasingly poor because his spine is likely fused at or near those points.

Claimant has a medically documented chronic right shoulder injury with the labral involvement prior to his work-related injury. Claimant has experienced chronic right shoulder pain since 2012, at which time an MRI scan of the right shoulder revealed a small tear through the posterosuperior glenoid labrum posterior to the biceps anchor. There was also present focal posterosuperior supraspinatus tendinopathy and a distal clavicle osteolysis with widening of the AC joint with an irregular articular surface. The Claimant has received steroid injections for that condition.

The Claimant's right shoulder condition and elbow pain is medically documented in the records of the Claimant's rheumatologist. Dr. Koprivica opined that the pre-existing shoulder condition would present a significant obstacle to work tasks requiring heavy overhead lifting, repetitive or sustained tasks above shoulder girdle level for the right upper extremity.

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

The Claimant has a pre-existing heart condition is medically documented and is contained in exhibits 3, 8, 9, 13, and 17. Documentation reveals that the Claimant has hypertrophic obstructive cardiomyopathy, cardiac arrhythmia, and reduced left ventricle ejection fraction.

Medical Evidence

The Claimant was evaluated on May 21, 2018 by Dr. Koprivica. Dr. Koprivica assesses the Claimant's injuries arising out of and during the course and scope of his employment as well as other pre-existing conditions.

The Claimant's injury at work was a partial thickness rotator cuff tear to his right shoulder. The Claimant's injury caused and causes significant and persistent pain in the right shoulder, as well as tightness, limited range of motion, loss of strength, interruptions in sleep and activities of daily living. Claimant also injured his right elbow causing him pain, difficulty extending his arm, and strength deficits. The Claimant was restricted from commercial driving, lifting no more than 5 pounds and was not to perform hosteling tasks, or push or pull more than 10 pounds. Claimant was restricted from lifting above chest height, repetitive use of the right arm, or forceful grasping. Dr. Koprivica was of the opinion that the work injury in isolation would not render the Claimant totally disabled.

As a result of the October 6, 2017, work injury, Dr. Koprivica found that the Claimant would be restricted from work tasks that require repetitive wrist movement with resistance due to his elbow injury. The doctor recommends the Claimant be restricted from repetitive activities above shoulder girdle level on the right side, as well as activities that require awkward postures of the cervical spine or those that require repetitive motions of the head and neck. Additionally, the Claimant should avoid jarring of the head and neck such as the operation of heavy machinery.

Dr. Koprivica found that on October 6, 2017, Claimant's work injuries resulted in a 20% permanent partial disability of the whole body. Dr. Koprivica concluded that the disability from the injury to the right shoulder represented 15% permanent partial disability of the level of the shoulder and that the injury to the elbow represented a 5 to 10% permanent partial disability and concluded the combination of those two conditions on the right upper extremity would result in a 20% permanent partial disability to the whole body.

Dr. Koprivica also evaluated the Claimant's pre-existing conditions and the resulting restrictions. The doctor noted the Claimant had a history of significant cardiovascular disease and was of the opinion that disease represents a significant obstacle to employment which would require aerobic demand.

Dr. Koprivica also found the Claimant suffered from ankylosing spondylitis which has been treated with immunosuppressive agents and those chronic pain complaints have been present since the age of 17. The doctor was of the opinion that the Claimant would be restricted from frequent or constant bending at the waist, pushing, pulling or twisting and should further avoid sustained or awkward postures of the spine and avoid any jarring to the body.

Dr. Koprivica further found Claimant had pre-existing chronic right shoulder pain with a documented labral injury, and found that this disability contributed to the restrictions placed on the Claimant. Dr. Koprivica found the combination of the Claimant's pre-existing disabilities together with the injuries from the October 6, 2017 accident has rendered the Claimant

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

permanently and totally disabled. Dr. Koprivica deferred, however, to a vocational expert for further evaluation regarding employability.

Terry Cordray, a certified rehabilitation counselor, evaluated the Claimant on November 7, 2018 for the purpose of a vocational assessment. Mr. Cordray did his assessment to determine expectations of employability of the Claimant given the Claimant's age, education, work background, and transferable skills in combination with restrictions from work-related injuries and pre-existing disabilities. Mr. Cordray had reviewed the Claimant's medical records and identified restrictions based on the doctor's evaluations and recommendations.

Mr. Cordray concluded the Claimant had a vocational profile of an individual approaching advanced age who had a GED and vocational training and work experience as a truck driver, truck hostler, and performed sheet-metal and welding work years in the past. Mr. Cordray determine the Claimant's physical restrictions from his pre-existing conditions as well as work injuries in combination with his age, education, prior work history, and lack of skills for light sedentary job made it unrealistic to expect the Claimant to be further employed.

In a workers' compensation claim the Claimant bears the burden of proof to show that the injury was compensable. *Johme v. St. John's Mercy Healthcare*, 366 S.W.2d 504 (Mo banc 2012). To meet this burden, the Claimant must prove that each factual proposition upon which the claim rests is more likely to be true than not true.

The Claimant alleges that he is permanently and totally disabled. To show that the disability constitutes a permanent and total disability under the Missouri Worker's Compensation Law, the Claimant must show that, given the employee's situation and condition, they are not competent to compete in the open labor market.

Section 287.020.7, RSMo, provides "total disability" as used in this chapter shall mean inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident. The phrase inability to return to any employment has been interpreted as the inability of the employee to perform the usual duties of employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. *Kowalski v. M-G Metals and Sales Inc.*, 631 S.W.2d 919 (Mo app 1982). The test for permanent total disability is whether, given the employee's situation and condition, they are competent to compete in the open labor market. The key question is whether any employer in the usual course of business would reasonably be expected to hire the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which they are hired. *Brown v. Treas. of Missouri*, 795 S.W.2d 479 (Mo app 1990).

Section 287.220, RSMo, creates the Second Injury Fund and sets forth when and in what amounts the compensation shall be paid from the Fund in all cases of permanent disability where there has been previous disability. In deciding whether the Fund has any liability, the first determination is the degree of disability from the last injury considered alone. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240 (Mo banc 2003). Accordingly, pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined. If the last injury in

WC-32-R1 (6-81)

Page 6

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

and of itself renders the employee permanently and totally disabled, then the Fund has no liability

and the employer is responsible for the entire amount of compensation.

Second Injury Fund analysis post Cosby v. Treas. of the State of Missouri,

579 S.W.3d 202 (Mo 2019)

In this case Claimant's injury was alleged as an occupational disease to the right shoulder,

elbow and neck from the repetitive motion of his job duties including hand cranking the trailer up

and down to line up with the truck to hook the trailer, and in the alternative from a specific

incident occurring on October 6, 2017, which occurred as the Claimant was exiting his truck, he

lost his footing, hung to grab the rail with his right arm and felt a pop. This occupational

disease/injury is post-January 1, 2014, the date of the change in the law set forth in Section

287.220.3 therefore, Section 287.220.3 applies, following a Missouri Supreme Court decision in

Cosby, id.

"Section 287.220.3 provides that to be entitled to Fund benefits, claimant must

prove the following:

(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.

(2) 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:

(2) 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 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 low 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

WC-32-R1 (6-81)

Page 7

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

items i, ii, iii, or iv of subparagraph a of this paragraph, results in a permanent total disability as defined under this chapter."

The Claimant's medical expert issued a report prior to January 25, 2019, the date the Missouri Supreme Court handed down the Cosby decision, and the report had been submitted pursuant to the 60 day notice statute. In his report, Dr. Koprivica did not address the specific requirements of Section 287.220.3, but simply stated that it was his opinion the Claimant was rendered permanently totally disabled from a combination of the prior conditions with the effects of the primary injury, relying on 287.220.2 rather than 287.220.3. The doctor's deposition was never taken, nor was an addendum report obtained. Mr. Cordray, the vocational expert engaged by the Claimant, opined that the Claimant is permanently totally disabled from the same combination. It is clear, however, that none of the Claimant's pre-existing conditions meet the statutory requirements of 287.220.3 for Second Injury Fund liability for permanent total disability because none of the pre-existing disabilities are (1) a military injury arising out of a direct result of active military duty in any branch of the United States Armed Forces, (2) a direct result of a compensable injury as defined in 287.220.3, (3) a pre-existing disability that directly and significantly aggravates or accelerates the primary injury, or (4) pre-existing permanent partial disability of an extremity, loss of eyesight in one eye or loss of hearing in one ear, when the primary is the opposite extremity, loss of eyesight in other eye, or loss of hearing in the other ear.

Although Dr. Koprivica rated the prior cardiac condition and the ankylosing spondylitis at 25% of the whole body, neither of the conditions result from a compensable work injury, a military related disability, and opposing extremity, and there is no medical evidence that either condition directly or significantly aggravated the primary right shoulder injury. The prior shoulder condition did not reach the threshold of 50 weeks of disability, as Claimant's own expert rated that condition at 10% at the 232-week level, significant inasmuch as the prior right shoulder would not qualify under the prevailing statute, for Second Injury Fund liability.

There is no medical evidence opining that any of the prior conditions significantly and directly aggravated or accelerated the primary right shoulder injury. Therefore, none of the prior conditions qualify pursuant to 287.220.3 for Second Injury Fund liability for permanent total disability benefits.

In enacting Section 287.220.3, the Missouri legislature set out specific requirements a Claimant must meet in order for prior condition to qualify for Second Injury Fund liability in a permanent total disability case. Pursuant to Section 287.800, Chapter 287 of the Missouri Statutes is to be strictly construed.

Conclusion

I find for the reasons set forth above Claimant failed to meet his burden of proof to establish Second Injury Fund liability. This case having already been settled with the employer and insurer, and tried on the sole issue of Second Injury Fund liability, therefor it is determined that no benefits are due.

WC-32-R1 (6-81)

Page 8

Issued by the DIVISION OF WORKERS' COMPENSATION

Employee: James Swafford

Injury No. 17-085909

I certify that on 2.13.20,

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon each party is retained with

the executed award in the Division's case file.

By __________________________


Made by: __________________________

Mark S. Siedlik

Chief Administrative Law Judge

Division of Workers' Compensation