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

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[^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

WC-32-R1 (6-81)

Page 1

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 res