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:

[^0]

[^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 that exceeds fifty weeks and is "a direct result of a compensable injury" constitutes a qualified preexisting disability for purposes of $\S 287.220 .3 .(2)$ RSMo. Nothing in this statute requires that disability resulting from a prior compensable work injury must involve only a single body part. The majority's interpretation of $\S 287.220 .3 .(2) is contrary to strict construction of the law as mandated by \S 287.800$ RSMo. It unfairly and illogically discriminates against injured workers whose preexisting disability from a single compensable injury happens to involve multiple body parts.

Parker states:

The existence of non-qualifying disabilities does not count against (or for) the claimant in evaluating whether he meets the second threshold condition. In other words, two claimants with identical qualifying preexisting disabilities and primary injuries should be evaluated the same way when determining if they meet the second condition regardless of whether one has additional non-qualifying disabilities. ${ }^{1}$

Based on this language, Parker clearly allows consideration of multiple preexisting disabilities, so long as the employee has one "qualifying" disability under § 287.220.3.(2)(a).

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

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[^0]: ${ }^{1}$ Treasurer of the State As Custodian of the Second Injury Fund v. Jonathan Parker, 622 S.W.3d 178, 182 (Mo banc, 2020).

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 526-8983 FAX: (573) 751-2012

www.labor.mo.gov/DWC

SEPTEMBER 29, 2020

15-073485

Scan Copy

@Employee . . . . : WALTER E ADAMS 606 E SEYBOLD ST EXCELSIOR SPR, MO 64024-0000 *Employer . . . . : JIM HAWK TRUCK TRAILERS 13316654 4 7500 GARDNER AVE KANSAS CITY, MO 64120-2312 *Insurer . . . . : TRAVELERS INDEMNITY CO OF AMERICA 13316656 8 PO BOX 660456 DALLAS, TX 75266-0456 *Insurer Attorney : RONALD A PRICHARD PO BOX 64093 ST PAUL, MN 55164-0093 #Employee Attorney: DANIEL L DOYLE 748 ANN AVE KANSAS CITY, KS 66101 *Employer . . . . : JIM HAWK TRUCK TRAILERS 13316655 1 3403 SOUTH 9TH ST COUNCIL BLUFFS, IA 51501 *Insurer . . . . : TRAVELERS INDEMNITY CO OF AMERICA 13316657 5 PO BOX 660456 DALLAS, TX 75266-0456 #Asst Atty General: ATTY GENERAL ERIC SCHMITT 615 E 13TH ST STE 401 KANSAS CITY, MO 64106

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

Please visit our website at www.labor.mo.gov/DWC

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Walter Adams

Employee: Walter Adams

Injury No. 15-073485

Dependents: N/A

Employer: Jim Hawk Truck Trailers

Insurer: Travelers Indemnity Company of America

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

Hearing Date: June 2, 2020

Checked by: MSS/lh

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: September 17, 2015
5. State location where accident occurred or occupational disease was contracted: Clay County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was Claim for Compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured upper extremity working on vehicle
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right upper extremity, whole body.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Walter Adams

Injury No. 15-073485

1. Nature and extent of any permanent disability. 25% right shoulder at 232 week level, 27% right hand at 175 week level to Employer and Insurer, permanent total disability to the Second Injury Fund

1. Compensation paid to-date for temporary disability: $45,050.49

1. Value necessary medical aid paid to date by employer/insurer? $64,774.07

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 761.76

1. Weekly compensation rate 507.84/$464.58

1. Method wages computation: By agreement.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

From the Employer/Insurer: 49,013.19, less credit from civil suit of 4,860.75, for a total of $44,152.44.

1. Second Injury Fund liability: Weekly differential of 43.26 per week, for 105.5 weeks (4,563.93) beginning March 25, 2019, and 507.84 per week for life thereafter

**TOTAL:** To be determined

1. Future requirements awarded: None.

Said payments to begin as of the date of the award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to 25 percent a lien in favor of Dan Doyle, Attorney at Law, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Walter Adams

Injury No. 15-073485

**Employee:** Walter Adams

**Dependents:** N/A

**Employer:** Jim Hawk Truck Trailers

**Insurer:** Travelers Indemnity Company of America

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

**Hearing Date:** June 2, 2020

**Checked by:** MSS/lh

This case comes on for hearing before Administrative Law Judge Siedlik in Kansas City, Missouri on June 2, 2020. Claimant is Walter Adams who was present with his counsel Mr. Dan Doyle and Mr. Noah Ballard. The employer and insurer were represented by their counsel Mr. Ron Pritchard. The Second Injury Fund was represented by their counsel Ms. Kim Fournier.

This case involves injuries on or about September 17, 2015, while the claimant was in the employ of Jim Hawk Truck Trailers and allegedly sustained an injury by accident arising out of and in the course and scope of his employment in Clay County, Missouri. At the time of the alleged injuries, the employer had notice of said injury and claims were timely filed.

The claimant's average weekly wage was agreed to be 761.76, resulting in a compensation rate of 507.84. Weekly benefits have been paid totaling 45,050.49. Medical expenses of 64,774.07 have been paid.

The issues to be resolved are (1) accident (as alleged by Second Injury Fund); (2) the nature and extent of temporary total disability alleged due; (3) the nature and extent of permanent disability; (4) the liability of the Second Injury Fund.

The parties have agreed that the claimant's release from care occurred on January 15, 2019 at which time the claimant was deemed at maximum medical improvement. The parties further agree that collateral litigation regarding the claimant's discharge resulted in a payment by the employer of a sum for lost wages representing 9.4/7 weeks of weekly benefits, which serve to extend the date at which additional compensation would be due.

Claimant offered the following exhibits:

- Exhibit 1 (1A-1E) - Expert Deposition of Terry Cordray (pages 1-434)

- Exhibit 2 (2A-2D) - 60-Day letter for Dr. Rosenthal report and records (pages 1-391)

- Exhibit 3 - Receipt for Compensation 84-62757

- Exhibit 4 - Stipulation for Compromise Settlement 01-069707

- Exhibit 5 - Stipulation for Compromise Settlement 01-069707 (SIF)

- Exhibit 6 - Dr. Daniel J. Stechschulte, Jr., Rating of 8-30-2019

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Walter Adams

Injury No. 15-073485

Exhibit 7 - Walter Adams' Deposition

Exhibit 8 - 10-15-2019 Social Security Award

Exhibit 9 - Calculations Unpaid TTD Payments

The Employer/Insurer offered the following exhibit:

Exhibit A (A1-A2) - 60-Day submission of Dr. Stechschulte's Rating Report

Claimant is at the time of this hearing a 60-year-old man who worked as a mechanic at Jim Hawk Truck Trailers on the date of his injury. Claimant is a resident of Excelsior Springs, Missouri where he resides with his wife.

The claimant credibly testified regarding the nature of his work injury on September 17, 2015. The claimant was engaged in repairing brakes on the trailer. The claimant testified that as the job was nearing completion the claimant retrieved a large jack to lower the trailer. As the claimant attempted to retrieve the jack to lower the trailer to the ground, the jack struck a hose and lurched forward trapping the claimant's right hand between the jack and the trailer. The claimant testified this smashed his right hand. The claimant also testified that without any coworker in the area to assist him he had to physically wrench his hand out from where it was crushed, and in doing so the jack fell to the ground.

The claimant was immediately sent for medical care. At the recommendation of the examining physician, the claimant was scheduled to have an MRI performed to determine the extent of his injuries. Numerous attempts to schedule that MRI were made by the employer and insurer which was initially recommended by Dr. Alexander Strong on December 2, 2015. Subsequent attempts to schedule an MRI were made with Dr. James Carlisle, Dr. Chris Fevurly and Dr. Daniel Stechschulte. The issue causing the multiple rescheduling of the MRI procedure was the claimant's extreme claustrophobia. That MRI was ultimately performed under anesthesia on December 5, 2017. Subsequent to that MRI taking place, surgery was scheduled on August 10, 2018.

Medical records indicate that the procedure involved the reduction of the glenohumeral joint with no loss of bone or instability. There was a finding of cobblestoning of the humeral head. The claimant had labrum fraying, delamination in a type 2 slap configuration superiorly. Claimant had a fraying of the biceps tendon which was also repaired. The rotator cuff was repaired.

Claimant continues to complain of deficits in using his right dominant arm and hand. The claimant testified he was very much limited in using his right arm and hand and his strength is greatly diminished. The claimant believed the surgery relieved much of the claimant's pain but the right hand is not fully functional. Claimant testified to a prior injury to his left and non-dominant hand approximately 30 years ago, and because of this latest accident the claimant must primarily use that non-dominant left hand.

The claimant testified that Dr. Stechschulte had informed him there was limited treatment options for the right hand given the amount of time that had passed between the 2015 injury and the subsequent surgery nearly 3 years later. The claimant testified this lack of treatment to his right hand for that significant length of time has caused significant issues with the use of that.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Walter Adams

Injury No. 15-073485

hand. The claimant testified that prior to the 2015 injury the claimant primarily used his right hand for most of his work duties as a mechanic, albeit with some accommodations because of the pre-existing left-hand condition.

Claimant was ultimately released from medical care by Dr. Stechschulte on January 15, 2019. Dr. Stechschulte believed the claimant had a permanent partial disability of 14% of the right upper extremity at the 232 week level.

Claimant was examined by Dr. Anne Rosenthal and her report is in evidence. (Claimant's Exhibit 2) Dr. Rosenthal reviewed the claimant's history of the accident the treatment provided to date and opined that the claimant had from the work injury of September 17, 2015, a permanent partial disability of 35% of the right upper extremity at the shoulder as well as a 17% permanent partial disability to the right hand.

Temporary Total Disability

The claimant was paid temporary total disability beginning May 5, 2017 and paid until the claimant was deemed at maximum medical improvement on January 15, 2019. The claimant alleges temporary total disability is due from September 20, 2015 until May 4, 2017, a period of 75 6/7 weeks.

There is no question the claimant was authorized and directed to have performed an MRI on the shoulder by each of a number of authorized treating physicians. The claimant's inability to have that procedure performed was due to the claimant's extreme claustrophobia. Claimant's contention at trial is that it is through no fault of their own that the prescribed MRI testing was not done and that the claimant is therefore entitled to that period of temporary total disability.

The employer and insurer had scheduled the MRI for the claimant on numerous occurrences and the claimant either could not or would not complete the procedure because of his claustrophobia. The employer and insurer's repeated attempts to accommodate the claimant demonstrate their willingness to provide diagnostic testing recommended, and the failure to complete that testing is of no fault of the employer and the responsibility of the claimant. I find after significant delay the claimant was finally administered an MRI test under anesthesia and thereafter treatment and surgery was performed. I do not agree with the claimant's contention that it is the employer's responsibility to pay those weekly benefits for the period of time necessary to have the diagnostic testing completed. It is the claimant's own inability to go through with the testing which was the cause of the delay. I find therefore the claimant's contention that they are owed 75 6/7 weeks of temporary total disability is denied.

Pre-existing Conditions

The claimant had two significant pre-existing conditions which predated his September 2017 injury. The first was a 1984 injury to the claimant's left hand. The claimant was attempting to remove an exhaust system on a car when the clamp was jammed and spun lacerating his left hand and fingers. The claimant thereafter had another incident involving pulling on a door handle, tearing tendons in the left-hand. The claimant ultimately had two surgical procedures to repair the left-hand both of which were deemed necessary from the first 1984 injury. The 1984

WC-32-R1 (6-81)

Page 5

injury was resolved by a compromise settlement for 32.5 % of the left-hand at the 175 week level, the sum of 56.875 weeks.

The claimant in 2001 was involved moving the scaffolding inside of the trailer which was unstable, and the scaffold moved, causing the claimant to tear tendons in both knees. Dr. Hartley performed the surgical repair on both knees. After treatment and follow-up care, the claimant was examined by Dr. Truett Swaim on behalf of the claimant and Dr. Clymer on behalf of the employer and insurer who offered opinions on the degree of disability. That case was ultimately settled for 15 % of the body, total of 60 weeks referable to bilateral knees and the low back. There is no evidence presented to apportion the percentage of disability in the 2001 case to individual body parts.

The claimant was examined and interviewed by Mr. Terry Cordray a vocational specialist on July 22, 2019. Mr. Cordray's report and deposition testimony is in evidence. Mr. Cordray noted the severe injury to the left-hand in 1984 as well as the bilateral knee surgery related to the 2001 injury. Mr. Cordray was provided information to document the claimant's high school education and military background. Cordray noted the claimant lacked computer, keyboard or software skills or training. Mr. Cordray did note the claimant did have some HVAC training 40 years in the past.

After engaging claimant in an interview and vocational testing, Mr. Cordray was of the opinion that the claimant's lack of computer skills and training would limit the claimant's ability to access wider sedentary jobs. And taking this into consideration with the claimant's advanced age and in combination with his injuries and physical limitations, Mr. Cordray felt the claimant was unemployable. Mr. Cordray analyzed potential job placement in the Kansas City area and the claimant was tested after which a labor market search ensued. Mr. Cordray ultimately concluded that given the restrictions of pre-existing and current injuries claimant was totally vocationally disabled. Mr. Cordray further noted that since the claimant's injury the claimant had applied for numerous positions without ever being granted an interview.

Mr. Cordray in his testimony explained that the claimant with a high school education, no computer skills and primarily having done mechanical jobs his entire life had limited job placement opportunities. Mr. Cordray noted the 1984 significant injury to the claimant's nondominant left-hand as well as the 2001 injury to the claimant's knees and low back, coupled with the last injury involving the claimant's right shoulder and right hand. Mr. Cordray found no transferable skills for a person who in effect had little use of both hands. Mr. Cordray further noted the claimant had a 30 -pound weight restriction going back to 2001 after his bilateral knee injuries leaving the claimant with compromised upper as well as lower extremities. Ultimately Mr. Cordray felt the claimant was totally vocationally disabled and that it was unrealistic to believe an employer would hire the claimant.

There is no credible evidence that the claimant's last injury of September $17^{\text {th }} 2015$, is the cause of the claimant's inability to access the open labor market in isolation. All medical experts who have offered opinions on the degree of disability as well as the vocational

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Walter Adams

Injury No. 15-073485

assessment provided conclude the last accident was not the cause of the claimant's inability to continue working.

The consensus of the evidence does conclude that the claimant is in fact permanently and totally disabled and unable to access the open labor market. This condition arises from the claimant's last accident together with the claimant's pre-existing conditions of ill, age, education, and transferable skills.

The claimant contends it is the last accident in combination with the pre-existing conditions which cause the claimant to be unemployable in the open labor market and the responsibility for the permanent total disability benefits lie with the Second Injury Fund.

The evidence presented at trial leaves little dispute as to the unemployability of the claimant. Dr. Stechschulte, the treating physician rated the claimant at 14% permanent partial disability of the right upper extremity. There was no opinion provided on the extent of the pre-existing conditions of ill by Dr. Stechschulte. The overwhelming weight of the remaining evidence provides that the claimant is unemployable in the open labor market and that it is a combination of the last work injury and the pre-existing conditions which render the claimant permanently and totally disabled.

The source of the dispute lies in the application of 287.220 (3). That section provides the criteria which must be met for Second Injury Fund liability after January 1, 2014. That section provides:

"3.(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 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:

(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 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 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

WC-52-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Walter Adams

Injury No. 15-073485

subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or §287.220 RSMo 2014."

There is little dispute the claimant suffers from significant pre-existing medically diagnosed disabilities prior to his work-related injury. There is in evidence documentation of two pre-existing injuries each of which was a work-related injury and each of which settled with the respective employers in excess of 50 weeks of permanent partial disability. While the Second Injury Fund is not bound by the terms of prior settlements regarding the percentages of disability, there is sufficient evidence to provide medically documented pre-existing disabilities meeting or exceeding the minimum threshold of permanent partial disability compensation using medical standards, reports and testimony which are commonly provided for such determination.

As previously set forth above, the claimant had a 1984 work-related injury to his left hand which required multiple surgeries. The settlement of that case is reflected in Claimant's Exhibit 3 and notes an agreed-upon settlement of 32.5% of the left hand at the 175-week level. That sum of 56.875 weeks exceeds the statutory requirements of 287.220 (3), and is well established by the medical evidence together with vocational opinions as set forth above.

The claimant had in 2001 another work-related injury, involving bilateral knees and low back. There is sufficient medical evidence in the record (Claimant's Exhibit 2), to document the injuries, subsequent treatment and opinions on disability to the claimant's knees and low back. That work-related injury was settled for 15% of the whole body (60 weeks), referable to the bilateral knees and low back.

It is the above-mentioned two work-related injuries, which in combination with the claimant's last work-related accident that render the claimant permanently and totally disabled. This is established by the credible weight of the evidence of both medical and vocational expert testimony, together with that of the claimant regarding his physical conditions. It is because the consensus of the evidence takes into consideration all pre-existing conditions of ill together with the last work-related accident which forms the basis of the Second Injury Fund contention that the evidence does not conform to the requirements of 287.220 (3). Specifically Second Injury Fund contention is that the 2001 accident and the expert opinions which set forth the disability do not apportion between the claimant's bilateral knees and low back. That failure to apportion does not provide the threshold disability for each mentioned body part as set forth in the requirements of 287.220 (3). The Second Injury Fund contends, for that reason, the claimant has not met their burden of proof to establish permanent and total disability, which is the responsibility of the Second Injury Fund.

Subsequent to the trial of this case, the Missouri Court of Appeals W.D. handed down the case of Treasurer v. Parker, W.D. 83030, July 14, 2020. In that case the evidence similar to that presented here is addressed by the court. In their opinion the Western District held that the question to be determined is whether consideration of less serious injuries, disabilities or conditions that do not meet 50 weeks or more permanent partial disability threshold may be taken into consideration when the threshold has otherwise been met.

That court took into consideration vocational experts which must rely on an individual's unique circumstances including age, work experience, potential for retraining, and transferable skills. This is common, historically considered expert testimony which provide credible evidence

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and assist the court in making determinations of whether an employee is permanently and totally disabled. This is evidence routinely considered in determining permanent and total disability in worker's compensation proceedings, including claims against the Second Injury Fund.

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. As the Court held in the Parker case, and this Court so holds, that as long as an employee has a pre-existing 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.

I find based on the evidence provided in the record the claimant has met his burden of proof to establish permanent and total disability. I find this based on the compensable last accident in 2015 in combination with pre-existing work-related injuries of 1984 and 2001.

I find as a result of the above-mentioned permanent and total disability and the claimant having been placed at maximum medical improvement on January 15, 2019, that the claimant's permanent partial disability from the last accident equals 25 % of the shoulder and 27 % of the right hand, which total 105.5 weeks of disability. At the agreed-upon compensation rate of $\ 464.58, the employer and their insurer are liable for the sum of $\ 49,013.19. The parties have stipulated and agreed that the employer and insurer is entitled to a credit of $9.4 / 7$ weeks of compensation which arose from the resolution of a civil suit collateral to this work-related injury. That sum of $\ 4,860.75 when applied to the permanent partial disability due reduces the employer and insurer's overall liability for permanent partial disability to $\ 44,152.44.

The Second Injury Fund liability is the differential between $\ 507.84 and $\$ 464.58, \ 43.26 per week for 105.5 weeks ( $\ 4,563.93 ) beginning March 25, 2019, and $\ 507.84 per week for life thereafter.

The claimant's attorney Mr. Dan Doyle is entitled to attorney's fees of 25 % of sums recovered for his legal services rendered.


mark siedlik

Mark S. Siedlik

Chief Administrative Law Judge

Division of Workers' Compensation