Walter Adams v. Jim Hawk Truck Trailers

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 15-073485

Employee: | Walter Adams |

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ).

At the June 2, 2020, hearing, disputed issues involving the employee's September 17, 2015, injury claim were:

(1) Accident

(2) Nature and extent of temporary total disability

(3) Nature and extent of permanent disability

(4) Second Injury Fund (SIF) liability

In his September 29, 2020, award Administrative Law Judge Mark S. Seidlik awarded permanent partial disability (PPD) against employer/insurer in the net amount of $\ 44,152.44. He found the SIF liable for permanent total disability (PTD).

In assessing liability for PTD against the SIF, the ALJ found:

There is no failure to provide adequate proof of permanent and total disability in this case based on the lack of specificity in apportionment of disability in the 2001 work-related injury relating to bilateral knees and low back [because the Western District Court of Appeals, in Treasurer v. Parker, held that] as long as an employee has a preexisting disability that satisfies one of the thresholds in 287.220(3), and the employee has a qualifying subsequent primary injury, less serious preexisting injuries and disabilities as well as other characteristics may be taken into consideration to determine whether an employee is permanently and totally disabled as a result. ${ }^{1}$

Employer/insurer did not appeal the award.

The SIF filed a timely application for review. It alleged the ALJ erred:

- In considering disability related to employee's 2001 work injury as qualifying pursuant to 287.220 .3 because:

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[^0]: ${ }^{1}$ Award, p. 9.

Employee's 2001 accident resulted in injury to two different body parts and therefore did not constitute "a medically documented preexisting disability equaling a minimum of fifty weeks"; and

1) Disability related to employee's 2001 injury "once considered separately would not each meet the minimum of fifty weeks as the two body parts combined met only 60 weeks of disability."

- In relying on the Western District Court of Appeals' ruling in Parker v. Treasurer² to find the SIF liable under $\S 287.220 .3 .(2)$ in that Parker was transferred to the Supreme Court.

Employee and the Second Injury Fund agree that § 287.220.3 RSMo applies to employee's 2015 claim.

In relevant part, § 287.220.3.(2) provides as follows:

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 [emphasis added]; 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 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[.]

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[^0]: ${ }^{2}$ Treasurer of the State As Custodian of the Second Injury Fund v. Jonathan Parker, (WD83030, July 14, 2020).

On September 4, 2020, the Missouri Court of Appeals Western District granted the SIF's motion to transfer Parker, supra, to the Missouri Supreme Court. On April 20, 2021, the Supreme Court issued its decision. ${ }^{3}$

Noting the parties' agreement that the Commission erred in applying subsection 2 of $\S 287.220$ rather than subsection 3 of that statute, the Court remanded to the Commission to find the facts and determine whether the employee is entitled to benefits under $\S 287.220 .3$. In the interest of avoiding unnecessary litigation and delay, the Court addressed several questions of statutory construction of $\S 287.220 .3$.

The Court instructed that to establish a compensable Second Injury Fund (SIF) claim under $\S 287.330 .3$, an employee must meet two conditions:

- First, have at least one "qualifying" preexisting disability as defined by $\S 287.220 .3(2)$ (a). Specifically, the employee's preexisting disability must be medically documented, equal at least fifty weeks of permanent partial disability, and met one of the four criteria set out in § 287.220.3(2)(a)a, supra.

- Second, the employee must thereafter sustain a subsequent compensable work-related injury that combined with employee's preexisting disability(ies) results in a PTD. § 287.220.3(2)(b).

In explaining the requirements of the second condition, the Court held that an employee must show that "the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in [§ 287.220.3(2)(a)]."4 The Court specifically and unequivocally rejected the employee's argument that the second condition can be met by showing that the employee's primary injury resulted in PTD when combined with all of the employee's disabilities "regardless of whether those disabilities meet the first condition."5

Employee, a mechanic, sustained a work injury involving his right upper extremity on or about September 17, 2015, while working on a vehicle. The SIF does not dispute the ALJ's finding that employee sustained PPD from his primary injury consisting of 25 % of the shoulder at the 232-week level and 27 % of the right hand at the 175 -week level.

Employee sustained a 1984 work-related injury to his left hand, which he settled with employer/insurer for 32.5 % of the left hand at the 175 -week level ( 56.875 weeks).

Employee had a June 14, 2001, work-related injury involving bilateral knees and his low back. Employee entered into a stipulation for compromise settlement with employer/insurer related to

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[^0]: ${ }^{3}$ Treasurer of the State As Custodian of the Second Injury Fund v. Jonathan Parker, 622 S.W.3d 178 (Mo banc, 2020).

${ }^{4} Id. at 182 .

{ }^{5} \mathrm{Id}$. [emphasis added].

this injury. The parties' based their voluntary settlement on approximate disability of 15\% PPD to the body as a whole at the 400-week level ( 60 weeks) referable to bilateral knees and the low back. Employee's settlement stipulation failed to separately estimate disability involving different body parts as outlined in the schedule of losses established in § 287.190. We find, as a factual matter, that preexisting disability relating to employee's 2014 work injury did not result in PPD of at least fifty weeks to either employee's back or bilateral knees.

No party disputes that employee's PTD resulted from the combination of disability from his primary injury in combination with all of the above-referenced preexisting conditions.

In Parker, supra, the Supreme Court clearly held that multiple qualifying preexisting disabilities may be considered to determine SIF liability for PTD under § 287.220.3.

This appeal presents the question of whether 15\% PPD of the body as a whole ( 60 weeks) attributable to employee's bilateral knees and low back resultant from his 2001 work injury qualifies as a medically documented preexisting disability "equaling a minimum of fifty weeks of permanent partial disability compensation" pursuant to § 287.220.3(2)(a).

The SIF argues that the employee fails to satisfy the criteria of § 287.220.3.2(a)a because disability resulting from his 2001 work injury did not result in at least fifty total weeks of PPD to either employee's back or his bilateral knees.

Employee argues that the Missouri Court of Appeals Eastern District opinion in Klecka v. Treasurer, (ED108721, June 22, 2021) allows inclusion of employee's 2001 back and knee injury because the court in that case opined that once an employee demonstrates that he has one qualifying preexisting disability (in this case, employee's 1984 preexisting disability to the left upper extremity) the trier of fact must then "look at all of the employee's physical conditions as well as other considerations such as age, education, and transferable work skills when analyzing whether an employee is PTD." Id., at 16.

The SIF asserts Klecka is contrary to the Supreme Court's directive in Parker and notes its pending Motion for en Banc Rehearing and Application [for] Transfer to the Missouri Supreme Court filed with the Missouri Court of Appeals Eastern District on July 7, 2021.

This question appears to be an issue of first impression.

We find that Parker explicitly requires an employee to demonstrate PTD under § 287.220.3. solely by a combination of disability related to the employee's primary injury and preexisting disabilities that qualify under that statute. In so finding, the Court expressly rejected the notion that additional, non-qualifying preexisting disabilities may be considered in assessing SIF liability under § 287.220.3.

As we have found, in this case employee's back and bilateral knee disabilities resultant from his June 14, 2001, work injury fail to qualify as preexisting disabilities as defined by § 287.220.3.(2) because neither condition resulted in at least fifty total weeks of PPD. No expert suggests that employee would be PTD in the absence of disability attributable to his 2001 work injury.

Because non-qualifying preexisting disabilities contributed to employee's PTD, Parker compels us to conclude that the SIF has no liability in this case.

We reject employee's contention that Klecka, supra, compels otherwise because the appellate court's decision in that case is not final and does not constitute binding precedent.

We deny employee's claim for PTD against the SIF.

Administrative Law Judge Mark S. Seidlik's September 29, 2020, Final Award Allowing Compensation is attached for information only.

Given at Jefferson City, State of Missouri, this $\qquad 18th \qquad$ day of August 2021.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


In this case, employee's permanent total disability (PTD) clearly results from disability attributable to his September 17, 2015, primary injury in combination with disability attributable to 1985 and 2001 compensable work injuries. The PPD attributable to each of those prior compensable injuries was greater than fifty weeks. Employee's claim for permanent total disability (PTD) against the Second Injury Fund (SIF) under § 287.220.3 RSMo must therefore prevail.

The plain words of $\S 287.220 .3 .(2)$ (a)a.(ii) state that medically documented PPD th