Robert Schebaum v. ABB Holdings, Inc.

[^0] [^0]: ${ }^{1}$ All statutory references are to the Revised Statues of Missouri, unless otherwise noted.

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; or (b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 , and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, 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.

According to the recent supreme court decision in Treasurer of State v. Parker, ${ }^{2} under \S 287.220$, "[p]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined. ${ }^{3} In order to establish a compensable SIF claim under \S 287.220 .3$, an employee must meet two conditions:

(1) have at least one "qualifying" preexisting disability as defined by $\S 287.220 .3(2)(a)$;

(2) Thereafter sustain a subsequent compensable work-related injury that combined with employee's preexisting disability(ies) results in PTD. ${ }^{4}$

A "qualifying" preexisting disability need not have been known to employee or reached maximum medical improvement before employee's primary work injury. ${ }^{5}$

Based upon our understanding of Parker, we find that employee is not permanently and totally disabled based upon a combination of his January 14, 2014, primary injury (2014 injury) and his qualifying preexisting disabilities. Drs. Preston Brent Koprivica and Michael Snyder both considered all of employee's preexisting disabilities prior to the 2014 injury, including those that do not qualify pursuant to $\S 287.220 .3(2)$, in their determination that employee was permanently and totally disabled. For example, employee's preexisting hearing loss does not qualify under $\S 287.220 .3$ as a preexisting disability. Although the hearing loss does appear to meet the first requirement for Second Injury Fund liability (in that it exceeds the 50-week minimum threshold) it fails to meet any of the four subcategories in $\S 287.220 .3(2)$ (a) in order to meet the second condition and qualify as a preexisting disability that counts towards Second Injury Fund liability.

Employee's August 2, 2007 preexisting injury to his right knee appears to qualify as a preexisting injury for Second Injury Fund liability under § 287.220.3(2)(a)(iv), because it exceeds the 50-week threshold ( 45 % PPD, at the 160-week level), and because employee's 2014 primary injury to the left knee was a subsequent compensable work-related injury of the

[^0]

[^0]: ${ }^{2} 622 S.W.3d 178 (Mo. banc Apr. 20, 2021).

{ }^{3} Landman v. Ice Cream Specialties, Inc., I 07 S.W.3d 240, 248 (Mo. 2003).

{ }^{4} Parker, 622 S.W.3d 178 (Mo. banc Apr. 20, 2021).

{ }^{5}$ Id. at 182 .

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opposite extremity. However, as we stated above, neither medical expert considered the preexisting right knee and the primary left knee injuries alone. Therefore, we find no Second Injury Fund liability in this case.

We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Hannelore D. Fischer is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this ______ 10th ______ day of August, 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I believe that the recent Parker decision stands for the proposition that an employee must show that a primary injury resulted in permanent and total disability "when combined with all preexisting disabilities that qualify under [§ 287.220.3(2)(a)]." However, "the existence of nonqualifying disabilities does not count against (or for) the claimant in evaluating whether he meets the second threshold condition."

I believe that the commission may still consider other non-qualifying disabilities, and that the commission must look at the individual as a whole and consider everything together in order to determine whether an individual is permanently and totally disabled.

Based upon my interpretation of the Supreme Court's decision in Parker, and the medical expert opinions, employee's August 2, 2007 preexisting injury and his January 14, 2014 primary injury combined to make him permanently and totally disabled and entitled to Second Injury Fund liability.

The fact that Drs. Koprivica and Snyder also considered employee's total hearing loss as part of their permanent and total disability determination does not count against (or for) employee in the evaluation of whether employee's qualifying preexisting disability to his right knee meets the criteria set out in § 287.220.3(2)(a), and should not factor into the calculation of employee's Second Injury Fund benefits.

For these reasons, I would find the Second Injury Fund to be liable for employee's permanent and total disability. Because the majority of the commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

Employee: Robert Schebaum

Dependents: N/A

Employer: ABB Tool and Die (previously settled)

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: N/A

Hearing Date: July 28, 2020 and August 25, 2020

Injury No.: 14-029821

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

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: January 14, 2014

1. State location where accident occurred or occupational disease was contracted: Cole County, Missouri

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? N/A

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

See Award

1. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Left knee

1. Nature and extent of any permanent disability: 25% left knee

1. Compensation paid to-date for temporary disability: N/A

1. Value necessary medical aid paid to date by employer/insurer? N/A

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1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: ---
3. Weekly compensation rate: $\$ 567.75 / \ 446.85
4. Method wages computation: By agreement

1. Amount of compensation payable: Employer previously settled.
2. Second Injury Fund liability: No

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Roger Brown.

Employee: Robert Schebaum

Injury No: 14-029821

Employee: Robert Schebaum

Injury No: 14-029821

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: ABB Tool and Die (previously settled)

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: $\quad \mathrm{N} / \mathrm{A}$

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on July 28, 2020, and August 25, 2020. Memoranda were submitted by September 18, 2020.

The parties stipulated that on or about January 14, 2014, the claimant, Robert Schebaum, was in the employment of ABB Tool and Die (ABB). Mr. Schebaum sustained an injury by accident; the accident arose out of and in the course of his employment. All facts relevant to the claimant's relationship with the employer/insurer are resolved in the claimant's favor in his claim against the Second Injury Fund. The rate of compensation on the date of accident is $\ 567.75 per week for temporary and total disability benefits and $\ 446.85 per week for permanent partial disability benefits. The issue to be resolved by hearing is the liability of the Second Injury Fund for permanent total disability benefits. Also at issue is the date of maximum medical improvement.

The parties stipulated that the claim against the employer/insurer settled based on a permanent disability of 25 percent of the left knee; the parties do not, however, agree that this represents the degree of permanent disability resulting from the injury of January 14, 2014, in the pending claim against the Second Injury Fund. Similarly, the parties stipulated that a claim against the employer/insurer as the result of an August 2, 2007 injury settled based on a permanent disability of 45 percent of the right knee; the parties do not, however, agree that this represents the degree of permanent disability resulting from the injury of August 2, 2007, in the pending claim against the Second Injury Fund.

The claimant, Robert Schebaum, testified at hearing that he has been deaf since the age of four when he suffered a blow to his head. Mr. Schebaum graduated high school from the School for the Deaf in 1979 and attended Central College but dropped out before obtaining a degree. Mr. Schebaum said that he is able to read lips and has maintained employment by reading lips and writing and reading.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Schebaum

Injury No. 14-029821

Mr. Schebaum's work history includes carpentry work, where he worked as a framer; work as a machinist, including working with an auger; and work on an assembly line. It was while at work for ABB that, on August 2, 2007, he was on a platform 30 feet up in the air; the platform fell resulting in an injury to Mr. Schebaum's right knee. Mr. Schebaum had surgery on the right knee performed by Dr. Craighead on September 12, 2007. Mr. Schebaum returned to work at ABB until he was laid off in June of 2008. While laid off from ABB, Mr. Schebaum worked at AZZ as well as at an apartment complex managed by his wife. Between December of 2008 and June of 2011, Mr. Schebaum was unemployed. On June 6, 2011, Mr. Schebaum was rehired by ABB.

In December of 2011, Mr. Schebaum had a total right knee replacement performed by Dr. Snyder.

On January 14, 2014, Mr. Schebaum, while at work for ABB, injured his left knee when he fell on a concrete step on both knees. Mr. Schebaum had surgery on September 2, 2014, with Dr. Snyder.

Mr. Schebaum said that he had a total left knee replacement performed on March 3, 2018.

Mr. Schebaum testified that he does not feel that he can work. Mr. Schebaum said that his knees are inflamed and feel hot. Mr. Schebaum testified that he was on anti-inflammatory medication prior to 2014 and that since the 2014 accident and injury he has been on narcotic medication.

Mr. Schebaum testified that he was not able to work in the welding department of ABB because he cannot hear.

In his deposition testimony, Mr. Schebaum said that he was working mandatory overtime for ABB in the months leading up to his January 2014 accident; he was working 65 to 70 hours a week and standing all day. Mr. Schebaum said that both his right and left knees were causing him problems prior to January of 2014. Mr. Schebaum testified at his deposition that he felt discriminated against at ABB when his supervisors would not write things out for him or when there were meetings or policy changes and that he would have to ask friends to write out what had been said. In his deposition testimony, Mr. Schebaum said that he resigned from ABB because of conflict with Carol and Dave and because ABB would not allow him to work light duty. Also in his deposition testimony, Mr. Schebaum testified to left knee surgery in 1998 or 1999, performed by Dr. Galbraith; Mr. Schebaum said he had no problems with his left knee after he recovered from that surgery. Mr. Schebaum confirmed that he has been completely deaf since the age of four in his deposition testimony. According to his deposition testimony, Mr. Schebaum returned to work at ABB on March 13, 2014, after having physical therapy on the left knee and then worked at ABB until his September 2014 left knee replacement; Mr. Schebaum returned to work for a few weeks at ABB before resigning in December of 2014.

Phillip Eldred, vocational rehabilitation counselor, testified that he initially opined that Mr. Schebaum was permanently and totally disabled as the result of his 2007 injury to his right knee and his preexisting total deafness. Mr. Eldred acknowledged that Mr. Schebaum returned to work at full time employment with ABB and that he was not permanently and totally disabled after the 2007 accident and injury. Mr. Eldred testified at the hearing of this claim that

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Schebaum

Injury No. 14-029821

Mr. Schebaum is permanently and totally disabled as the result of his knee injuries of 2014 and 2007. Mr. Eldred acknowledged that communication is a factor in determining employability. In his June 28, 2018 report, Mr. Eldred maintained his position that Mr. Schebaum is permanently and totally disabled as the result of his August 2, 2007 accident and injury combined with his total deafness. In that June 28, 2018 report, Mr. Eldred acknowledged having received and read at least ten additional reports and depositions from Dr. Koprivica, Dr. Snyder, and Dr. Farley dated after January of 2014.

Dr. Michael Snyder, orthopedic surgeon, testified by deposition on September 30, 2015, that he treated Mr. Schebaum for his January 2014 left knee injury. Dr. Snyder testified that on September 2, 2014, he performed a left knee arthroscopy to repair a torn medial meniscus. Dr. Snyder stated that his November 12, 2014 note regarding Mr. Schebaum's ability to be employed in the labor market referenced both knees as well as Mr. Schebaum's deafness as factors in Dr. Snyder's opinion that Mr. Schebaum is not employable in the open labor market.

Dr. Brent Koprivica, occupational medicine practitioner, testified by deposition on April 20, 2018, that he evaluated Mr. Schebaum multiple times, the most recent being December 19, 2015. Dr. Koprivica felt that Mr. Schebaum's total deafness, which preceded both his 2007 right knee injury and his 2014 left knee injury, is part of his "global disability presentation." (Koprivica depo, 4.20.18, p22,110)

With regard to the 2007 accident and injury, Dr. Koprivica opined that the right knee injury carried a permanent partial disability of 50 percent of the right knee and that Mr. Schebaum's deafness combined with the right knee injury to make Mr. Schebaum more disabled; Dr. Koprivica felt that the enhanced disability as the result of the combination of injuries is ten percent of the sum of the right knee disability and the disability attributable to deafness.

With regard to the 2014 accident and injury, Dr. Koprivica stated that Mr. Schebaum was at maximum medical improvement on October 13, 2014, when Dr. Snyder released him from treatment. Dr. Koprivica opined that Mr. Schebaum is permanently and totally disabled as the result of his total deafness, his 2007 right knee injury, and his 2014 left knee injury.

Dr. Timothy Farley evaluated Mr. Schebaum three times, for both his 2007 right knee injury and his 2014 left knee injury. In his May 9, 2017 report, Mr. Farley opined that Mr. Schebaum suffered a permanent disability of seven percent of the left knee as the result of the August 2, 2007 accident and injury and no permanent disability of the right knee as the result of the January 14, 2014 accident and injury.

APPLICABLE LAW

RSMo Section 287.220.3(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Schebaum

Injury No. 14-029821

(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 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; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

AWARD

The claimant, Robert Schebaum, has failed to sustain his burden of proof that he is permanently and totally disabled as the result of his injury of January 14, 2014, to his left knee in combination with a single preexisting disability that meets the requirements set out in section 287.220.3(2).

Based on Mr. Schebaum's testimony as well as the opinions of Dr. Koprivica, Dr. Snyder, and Dr. Farley, I find that the permanent disability resulting from the January 14, 2014 accident and injury is 25 percent of the left knee. Similarly, and based on Mr. Schebaum's testimony and the opinions of Dr. Koprivica, Dr. Snyder, and Dr. Farley, I find that the disability attributable to Mr. Schebaum's right knee is 45 percent of the right knee and the disability as the result of the total hearing loss is 180 weeks. I find that each of these disabilities exceeds the 50 week minimum set forth in section 287.220.3(2).

I find that the preexisting right knee injury and the primary left knee injury satisfy the requirement of subsection 287.287.220.3(2)(a)a.(iv).

Both Dr. Koprivica and Dr. Snyder testified credibly that Mr. Schebaum is permanently and totally disabled as the result of the 2014 left knee injury combined with his 2007 right knee

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**Employee:** Robert Schebaum

**Injury No.:** 14-029821

Injury and his preexisting complete loss of hearing. Mr. Schebaum testified to his inability to be gainfully employed as the result of his knee injuries and his complete loss of hearing. While Mr. Eldred testified at hearing that the two knee injuries combined to make Mr. Schebaum permanently and totally disabled, his testimony is contradicted by his report of 2018 in which he again cites Mr. Schebaum's deafness as a factor in his permanent and total disability and by his testimony at hearing in which he states that communication is a factor in determining employability. I find the opinions of Dr. Koprivica and Dr. Snyder more compelling than the internally inconsistent opinions of Mr. Eldred.

Thus, I find that the requirements of Section 287.220.3(2) have not been met and that Mr. Schebaum is not entitled to Second Injury Fund benefits. All other issues raised for resolution are hereby rendered moot.

I certify that on **11-10-20** 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 **me**

**Made by:**

**HANNELORE D. FISCHER**

Administrative Law Judge

Division of Workers' Compensation