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 6