Ray Ingles v. Corrigan Brothers, Inc.

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.

(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 § 287.220, "[p]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined." ${ }^{3} In order to establish a compensable Second Injury Fund claim under \S 287.220 .3$, 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 permanently and totally disabled. ${ }^{4}$

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 do not believe that employee is permanently and totally disabled based upon a combination of his August 5, 2014, primary injury (2014 injury) and his qualifying preexisting disabilities. We base our decision on vocational expert Mr. Terry Corday's initial March 25, 2019 report, which concluded that employee was permanently disabled due to a combination of his primary injury and preexisting left shoulder, low back, and bilateral hand disabilities. ${ }^{6}$ Similarly, Dr. David Volarich considered all of employee's preexisting disabilities prior to the 2014 injury (qualifying and non-qualifying) in his determination that employee was permanently total disabled. Although it appears that employee's 2011 injury qualifies under $\S 287.220 .3(2)(a)(i v)$ because it exceeds the 50 -week threshold and because

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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 .

{ }^{6}$ We acknowledge, but do not give any weight to Mr. Cordray's revised opinion in his May 5, 2020 report regarding employee.

Employee's 2014 injury was a subsequent compensable work-related injury of the opposite extremity, there was no credible expert testimony that only considered those two injuries alone. ${ }^{7}$

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

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

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[^0]: ${ }^{7}$ Employee's preexisting injuries to his lumbar spine also exceed the 50 week threshold, but there is no medical expert testimony in the record to demonstrate that either one of them aggravated or accelerated his 2014 injury. Furthermore, the evidence demonstrates that employee was permanently and totally disabled only after the post 2014 injury.

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 February 7, 2011, preexisting injury to his left shoulder and his August 5, 2014 primary injury combined to make him permanently and totally disabled and entitled to Second Injury Fund liability.

The fact that Dr. Volarich and Mr. Cordray also considered employee's other non-qualifying preexisting disabilities 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 liable for employee's permanent and total disability. Because the majority of the commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls Member

Employee: Ray Ingles

Imjury No.: 14-102499

Insurer: Old Republic (settled)

Hearing Date: November 17, 2020

Briefs due: January 15, 2021

Checked by:

1. Are any benefits awarded herein? No
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: August 5, 2014
5. State location where accident occurred or occupational disease was contracted: Callaway 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: Employee attempted to lift a piece of pipe injuring his right shoulder.
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 shoulder
14. Nature and extent of any permanent disability: 23.9 % right shoulder
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer: N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\ 861.04 for PTD
4. Method wages computation: Stipulation

1. Amount of compensation payable: employer previously settled
2. Second Injury Fund liability: None
3. Future requirements awarded: None

On November 9, 2020, the parties appeared for a final hearing in Jefferson City, Missouri. Ray Ingles ("Claimant") appeared personally and by counsels, Joseph Hughs and R. L. Veit. The Treasurer of Missouri, as the Custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties requested an opportunity to file post-hearing briefs. The record was completed and submitted on January 15, 2021.

1. The liability of the Second Injury Fund for permanent total disability.

The parties have stipulated to the following facts:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Cole County;
3. That the claim for compensation was timely filed and proper notice was given;
4. That both Employer and Claimant were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant sustained an accident or occupational disease arising out of and in the course of his employment with Corrigan Brothers Inc. on or about August 5, 2014;
6. That the maximum rate for PTD at the time of the August 5, 2014 injury, applies to this claim - $\ 861.04;

Claimant and his wife testified at the hearing in support of his claim. I take administrative notice of the division's files related to Claimant. The Second Injury Fund ("Fund") did not present witnesses or submit additional exhibits. Claimant offered the following exhibits, which were admitted without objection:

1. Claim for Compensation Injury 14-102499
2. Stipulation Injury 01-001103
3. Stipulation Injury 11-008353
4. Stipulation Injury 14-102499
5. Dr. Volarich deposition (11/26/19)
6. Dr. Volarich deposition (4/10/20)
7. Terry Cordray deposition

Claimant is 66 years old and a high school graduate. Claimant spent virtually his entire career as a pipefitter in the union. After completing high school, he went to work for Delong Steel. After a short stint with Delong, Claimant went into the Pipe Fitters Local \#562, where he worked

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union jobs until October 2014. Although he worked for many different employers, and each job might have slightly different requirements, he was a pipe fitter for nearly 40 years.

**Primary Injury**

At the time of his primary injury, Claimant was working a union job for Corrigan Brothers Inc. as a pipe fitter and welder for approximately eight months. This required Claimant to primarily be on his feet installing pipe for most of an eight-hour shift, five days a week. He would lift up to 100 pounds of pipe at times, and would often repetitively use his upper extremities when wrenching pipe.

On August 5, 2014, Claimant attempted to lift a piece of pipe weighing over 100 pounds when he felt a burning sensation in his right shoulder. After failing conservative treatment, Dr. Tarbox diagnosed Claimant with a rotator cuff rupture and performed surgery. Claimant settled this injury with his employer for 23.9% of the right shoulder.

**Preexisting Conditions**

Claimant testified he suffered several injuries and disabilities prior to the August 5, 2014 accident. These disabilities are as follows:

1. **Lumbar Spine.** Claimant testified he originally injured his low back in 1978 when he had to jump off a scaffold approximately twelve-feet high. This resulted in treatment at the emergency room, and he missed a few days from work. Claimant testified he re-injured his back at work years later and had additional x-rays. Division records additionally include a report of injury for a back strains in 1991 and 1992. While Claimant testified all his back injuries occurred at work, he did not receive a settlement or award for permanent disability.

1. **Left Shoulder.** Claimant suffered a work-related injury to his left shoulder on February 7, 2011. While he was moving a large piece of pipe with a forklift through a doorway, it caught and began to fall off the lift. Claimant reached for the pipe and felt immediate pain his shoulder. This injury ultimately resulted in two separate shoulder surgeries. Claimant eventually settled his workers' compensation claim for 40 percent of the left shoulder.

**Experts**

**Dr. Volarich**

Claimant was evaluated by Dr. Volarich at the request of his attorney on October 28, 2018. Dr. Volarich took a history from Claimant, reviewed medical records, and performed a physical evaluation. Dr. Volarich made the following diagnoses for Claimant's injuries August 5, 2014 injury:

1. Internal derangement right shoulder (rotator cuff tear with impingement and partial biceps tear) - S/P arthroscopic subacromial decompression, biceps tenoplasty, and rotator cuff repair.

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Dr. Volarich assessed a 30% permanent partial disability (PPD) for this condition.

Dr. Volarich further diagnosed and assessed disability for the following preexisting conditions:

1. Chronic lumbar syndrome secondary to degenerative disc disease and degenerative joint disease T12 through L5 - S/P non-operative treatment.
2. Left shoulder internal derangement - S/P open rotator cuff repair, Coracoacromial ligament extension, acromioplasty, and bicep tenodesis.
3. Recurrent left shoulder internal derangement - S/P manipulation under anesthesia followed by arthroscopic lysis of adhesion, subacromial decompression with repeat mini open rotator cuff repair.
4. Right hand carpal tunnel syndrome - S/P open carpal tunnel release
5. Left hand carpal tunnel syndrome - S/P open carpal tunnel release
6. Right 5th metatarsal fracture well healed and asymptomatic
7. Right great toe bunion surgery with ankylosis of the metatarsophalangeal joint.

Dr. Volarich gave restrictions for the primary injury, and claimant's preexisting left shoulder, hands, and low back. For the primary injury, Dr. Volarich restricted the following:

1. He should limit overhead use of the right arm and prolonged use of the right arm away from his body especially above chest level.
2. He should limit pushing, pulling, and particular traction maneuvers with the right upper extremity; he is instructed with proper ergonomic use.
3. He should not handle weight greater than 3 pounds with his right arm extended away from the body to overhead and limit their tasks as needed.
4. He should handle weight to tolerance with the right arm dependent assuming proper lifting techniques, but in general, I recommend 15 pounds with the right arm alone.

For the left shoulder prior to August 5, 2014:

1. Limit overhead use of the left arm and prolonged use the left arm away from his body especially above chest level.
2. Limit pushing, pulling, and particular traction maneuvers.
3. I would have advised him to handle weight to tolerance with the left arm using proper lifting technique.

For the low back prior to August 5, 2014:

1. I would have advised him to bend, twist, lift, push, pull, carry, climb and perform other similar tasks to tolerance.
2. I would have advised him to handle weights to tolerance, with proper lifting techniques.
3. I would have advised him to handle weight over his head or away from his body, and to carry weight over distances or uneven terrain to tolerance.
4. I would have advised him to change positions frequently to maximize comfort and rest when needed.

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For the hands prior to August 5, 2014:

1. I would have advised him on proper ergonomic use of the upper extremities, and to avoid using the extremities in an awkward or blind fashion.

1. I would have advised him to avoid repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotatory motions, and similar tasks.

1. I would have advised him to avoid impact and vibratory trauma to the hands, and to use appropriate braces, anti-vibration gloves, support straps and other protective devices.

Dr. Volarich originally recommended a vocational evaluation to determine if Claimant was able to work. If such evaluation were unable to identify a job for which he was suited, it was his opinion Claimant was permanently and totally disabled as a result of the primary injury August 5, 2014, in combination with his preexisting medical conditions. After reviewing a report from Terry Cordray, Dr. Volarich concluded Claimant was PTD due to a combination of his primary and preexisting conditions. He clarified in his deposition that this opinion included all of Claimant's preexisting conditions.

Terry Cordray

Terry Cordray, a vocational rehabilitation specialist, evaluated Claimant at the request of his attorney on March 25, 2019. After reviewing the medical restrictions and performing vocational testing, Mr. Cordray concluded that Claimant was permanently and totally disabled due to a combination of his primary injury and preexisting left shoulder, low back, and bilateral hand disabilities. He reasoned Claimant's shoulder 15-pound lifting restriction for the primary injury alone precluded returning to that career. Ex. 7, p. 29. Then, Mr. Cordray concluded that Claimant's low back restrictions would further limit Claimant to sedentary to light work that would allow him to sit/stand as necessary. Ex. 7, p. 31. Once you then considered his bilateral hand restrictions, he was totally disabled.

On May 5, 2020, Mr. Cordray authored an addendum and opined that Claimant was totally vocationally disabled due to only his bilateral shoulder injuries "without consideration of Mr. Ingles' limitations to the hands." Ex. 7 (p. 4 of 5/20/20 report). He further testified that it was Claimant's back that prevented him from doing unskilled lights jobs. Ex. 7, p. 31. To address the apparent contradiction between his reports, Mr. Cordray testified that he believed Dr. Volarich restricted Claimant from repetitive use of his upper extremities in his shoulder restrictions. Ex. 7, p. 31-32. He nevertheless acknowledged Dr. Volarich could give specific repetitive restrictions if that were what he intended. Id, p. 32. He admitted Dr. Volarich did not include repetitive restrictions in the shoulder restrictions. Id.

FINDINGS OF FACT AND RULINGS OF LAW

The claimant in a workers' compensation case has the burden to prove all the essential elements of his claim, including the causal connection between the injury and work. Jefferson City Country Club v. Pace, 500 S.W.3d 305, 313 (Mo. App. 2016). The claimant does not have to establish the elements of his case with absolute certainty; it is sufficient if he shows them by reasonable probability. Moreland v. Eagle Picher Techs., LLC, 362 S.W.3d 491, 504 (Mo. App. 2012).

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The claimant only meets his burden of production when he submits enough competent and substantial evidence that supports a finding of all facts that are required to support the claim for benefits. The claimant has both the burden of production of evidence and the burden of persuasion to prove his claim for benefits. Annayeva v. SAB of TSD of City of St. Louis, 597 S.W.3d 196, 199 (Mo. banc 2020).

Claimant seeks an award of permanent total disability benefits from the Second Injury Fund. Claimant's primary injury occurred after January 1, 2014. Therefore, the criteria set forth in section 287.220.3(2), RSMo Supp. 2013, must apply to his claim against the Fund. See Cosby v. Treasurer, 579 S.W.3d 202, 208 (Mo. banc 2019).

The construction of this section is under review by the Missouri Supreme Court in Treasurer v. Parker, SC98673, argued on January 20, 2021. The appellate courts have issued conflicting rulings. See Parker, WD83030, and Bennett v. Treasurer, 607 S.W.3d 251 (Mo. App. E.D. 2020). The Commission's position is consistent with Bennett and the dissenting opinion in Parker. See Jody Sneed, Injury No. 17-035499 (LIRC 2020), and Gregory Phelps, Injury No. 16025639 (LIRC 2020). Therefore, I will follow the Commission's current interpretation of the statute.

The statute, section 287.220 .3 , outlines what Claimant must prove in order to receive benefits from the Fund as follows:

(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 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;

As construed by the Commission, the plain language of 287.220 .3 (2)(a)b requires that an employee prove permanent total disability resulting from the combination of the primary and a single, qualifying preexisting disabling condition, in order to receive benefits from the Second Injury Fund .

The parties do not contend that Claimant's primary injury resulted in permanent total disability in isolation, so the first step in analyzing Fund liability is to determine if any alleged preexisting disabilities meet the new statutory thresholds set forth in 287.220.3(2)(a)(i-iv). Here, Claimant identifies two disabilities that he argues meet these criteria: a prior low back disability and a prior left shoulder disability. The previously twice-operated left shoulder plainly qualifies under 287.220.3(2)(a)(ii) as a prior compensable work injury that settled for more than fifty weeks. We next consider whether the alleged low back disability additionally qualifies.

I find Claimant's low back disability was not the direct result of a work accident or active military duty, but instead the result of degenerative condition. Even if it was a work-related disability, it can only be included in the Fund analysis if it were shown to have been a "medically documented preexisting disability of a minimum of fifty weeks" that also "directly and significantly aggravated or accelerated" the primary injury. Claimant has failed to prove either requirement.

Dr. Volarich testified that he based his low back rating on his examination of Claimant in 2018, four years after the primary injury. He admitted, however, that the records of low back treatment he reviewed were before 1992. Ex. 6, p. 9. Dr. Volarich was therefore not aware that Claimant's only substantive treatment for his low back in the prior twenty years occurred after a boating accident long after the primary injury. Dr. Volarich did not give a rating of a "medically documented preexisting disability," but instead a progressive disability that had been significantly aggravated between the primary injury and his evaluation. The minor low back strains medically documented prior to August 5, 2014 do not come close to fifty weeks of permanent partial disability.

Further, Dr. Volarich's opinion that Claimant's low back condition directly and significantly aggravated the primary is not persuasive. The doctor admitted that he just repurposed his prior synergistic effects section without any further explanation. The boilerplate combination language, without more, is not sufficient to carry Claimant's burden of proof and burden of persuasion.

Claimant's left shoulder disability is his only qualifying preexisting disability under the statute as construed. The question is whether the left shoulder and the primary injury alone resulted

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in permanent total disability. Section 287.020.6 states that "total disability' . . . shall mean inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." The test for total disability is the worker's ability to compete in the open labor market. *Greer v. SYSCO Food Service*, 475 S.W.3d 655, 664-65 (Mo. banc 2015).

Claimant may be permanently and totally disabled at the present time. However, the question is whether he was totally disabled after the primary work injury in combination with a single qualifying preexisting condition at that time. Here, Claimant's total disability is due to a combination of his primary work injury, all his preexisting conditions, and his post-primary accident back injury. I find that Claimant is not totally disabled as a result of his primary work injury and his conditions that preexisted the primary work injury. I also find that Claimant is not totally disabled as a result of his primary injury and his prior left shoulder injury alone. Consequently, Claimant does not meet the requirements of section 287.220.3(2).

The medical evidence is not sufficient to meet Claimant's burden of persuasion. In his initial report, Dr. Volarich diagnosed seven different preexisting conditions and described how each of these conditions together hindered Claimant in his employment before the primary injury occurred. Even so, Dr. Volarich had no objection to Claimant performing work if it could be found within his restrictions. This included limitations for Claimant's low back and hands in addition to restrictions on his shoulders. Dr. Volarich concluded:

> If vocational assessment is unable to identify a job for which he is suited, then it is my opinion that he is permanently and totally disabled as a direct result of the work-related injury of 8/5/14 in combination with his pre-existing medical conditions.

Ex. 5 (October 22, 2018 report). Dr. Volarich's opinion did not change after reviewing Mr. Cordray's June 3, 2019 report. *Id.* (June 14, 2019 addendum). And it did not change after twice reviewing additional medical records. *Id.* (August 16, 2019 and November 13, 2019 reports).

On December 30, 2019, Dr. Volarich was asked to reconsider his opinions in light of recent rulings and procedure changes in the law. Ex. 6, p. 6. Thereafter, Dr. Volarich issued his fourth addendum, but he reiterated his "opinion that the bilateral shoulder injuries and low back injury are the primary and prevailing factors causing his permanent and total disability. *Id.* (January 3, 2020 addendum). Dr. Volarich confirmed those opinions in his second deposition taken on April 10, 2020. There, he stated that "both the prior low back and left shoulder aggravated and accelerated his current right upper extremity . . . ." Ex. 6, p.8. And he confirmed that the left shoulder and back preexisting conditions were the primary factors combined with the right shoulder in making Claimant permanently and totally disabled. *Id.*

Due to the changing nature of his opinions, Mr. Cordray cannot be relied on to support Claimant's claim. Mr. Cordray originally provided an opinion that Claimant was permanently and totally disabled when considering all his disabilities. He outlined the logic supporting his opinion in his original vocational report and deposition. First, he concluded that Dr. Volarich's fifteen-pound lifting restriction for the primary injury would alone preclude any of Claimant's prior employment as a pipefitter without accommodation. Exhibit 7, p. 29. Then, he concluded Dr. Volarich's restrictions for claimant's hands and low back would further preclude him from

sedentary or light positions. Accordingly, he concluded Claimant was precluded from all employment due to a combination of all his disabilities.

After his initial report, Mr. Cordray was asked to reevaluate his opinions in light of clarifications in the law. Ex. 7. He subsequently gave an opinion that Claimant's restrictions for his primary injury and preexisting left shoulder alone would preclude him from all employment. Id. (May 5, 2020 report). To do so, Mr. Cordray reinterpreted Dr. Volarich's report and concluded that Dr. Volarich's repetitive use restrictions for the hands also applied to the shoulders. Ex. 7, pp. 32-33. Dr. Volarich, however, did not assign any repetitive use restrictions to the shoulders. In effect, Mr. Cordray modified his opinions in an attempt to save Claimant's PTD claim in light of the changing legal landscape. Therefore, I cannot find his opinions credible.

I have carefully reviewed the entire record, including the medical records and all the testimony. After the 2011 left-shoulder injury, Claimant returned to work apparently without restrictions. He continued to work for years in a physically demanding job. Neither his left shoulder nor his minor back issues kept him from working as a pipefitter. After his right shoulder treatment, Claimant was released to full duty by the treating doctor. The record does not support a claim that he was unable to work or compete in the open labor market at that time.

A year after the primary injury, Claimant suffered a new low back injury while boating at the Lake of the Ozarks. He now reported new radicular symptoms from his back and was placed on narcotic pain medication at that time. He continued to treat at the Columbia Orthopedic Group for his lumbar and cervical spine. The evidence shows that it was this new injury, sustained after the primary work injury, combined with the natural progression of his preexisting conditions, that rendered him totally disabled.

I am constrained by section 287.220 .3(2) as currently construed. The purpose of the 2013 amendments was to limit the Fund's liability due to the Fund's insolvency. Cosby, 579 S.W.3d at 210. Claimant does not meet the limited criteria set forth in the statute. Claimant has thus failed to prove that he is PTD from his primary injury and a single preexisting injury alone. Therefore, his claim against the Second Injury Fund is denied.

Claimant's claim for permanent and total disability against the Second Injury Fund is hereby denied.


Made by: $\frac{\text { Bruce Farmer }}{\text { Administrative Law Judge }}$

Division of Workers' Compensation