Clifford Wolf v. Duckett Creek Sewer District

whole for this injury, which meets the threshold of fifty weeks of disability pursuant to $\S 287.220 .3 .(2)$.

Employee had non-compensable preexisting disability relating to polio in the amount of 35 % PPD of each lower extremity at the ankle, which also satisfies the fifty-week requirement set out in the statute. This disability directly and significantly aggravated or accelerated employee's primary injury thus qualifying as a preexisting disability under $\S 287.220 .3 .(2)$ (iii).

- Based on Benjamin Hughes's vocational assessment and employee's credible testimony, employee is PTD as a result of the combination of disability relating to his primary and preexisting injuries.

- The SIF is liable for PTD beginning January 27, 2017, the stipulated maximum medical improvement (MMI) date, with a partial credit based on the estimated weeks of PPD attributable to employee's primary injury included in his settlement with the employer/insurer.

The SIF filed a timely application for review. It alleged the ALJ's award was erroneous in that:

1) The ALJ improperly included the employee's back condition in her PTD analysis because this ailment had not reached MMI before the primary injury.

2) The ALJ improperly found employee's 2015 back surgeries to be a preexisting condition by relating them back to employee's 2013 work injury. Employee's 2015 back surgeries constituted a subsequent condition that the ALJ should have excluded from the PTD analysis.

3) The ALJ improperly found that employee's polio disability met 287.220.3.(2)(a)a.(iii) because Dr. Cohen opined that employee's foot drop aggravated and accelerated his back injury, but did not opine that employee's childhood polio or residual bilateral foot drop aggravated or accelerated his work-related carpal tunnel syndrome.

4) The ALJ improperly considered multiple alleged preexisting disabilities in combination with employee's primary occupational disease because 287.220.3(2)(a)b permits an award of PTD only when a single qualifying preexisting disability combines with the primary injury to render employee PTD.

5) The ALJ improperly considered employee's "long history of disabling injuries" without analyzing each preexisting injury separately and improperly considered conditions that do not qualify under the statute.

6) The ALJ improperly found that employee's primary carpal tunnel syndrome combined to render him PTD because this condition did not play a role in employee's inability to work, was not the reason employee stopped working, and because Dr. Brown provided no restrictions for employee's primary injury.

7) The ALJ improperly found employee PTD as a result of his 2014 injury and preexisting conditions in that employee's vocational expert testified that he would be employable in the open labor market considering Dr. Brown and Dr. Minges' restrictions and that, if employee is PTD, it is due to his subsequent back surgeries and other health conditions.

Section 287.220.3.(2) as revised effective January 1, 2014, applies to employee's December 2, 2014, injury claim. This section provides, in pertinent part:

(2) 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.

(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 . . .

In Treasurer of the State As Custodian of the Second Injury Fund v. Parker, the Supreme Court of Missouri held, "[A]n employee who suffers a preexisting disability before his primary injury can meet the first condition [of 287.220.3.(2)(a)] regardless of whether he knew (or it had been determined) before suffering his primary injury that his preexisting disability equaled 50 weeks PPD." ${ }^{1}$ This holding is dispositive of the SIF's argument that the ALJ erred in considering employee's back condition in her PTD analysis because this ailment had not reached MMI before employee's primary injury.

Parker further expressly held that multiple qualifying preexisting disabilities could be considered in determining SIF liability under 287.220.3.(2)(a). ${ }^{2}$ This holding is dispositive of the SIF's contention that 287.220.3.(2)(a) and (b) permits an award of PTD only when a single qualifying preexisting disability combines with the primary injury to render employee PTD.

In his March 27, 2019, report Dr. Raymond Cohen found employee's 2015 lumbar surgery to be related to employee's November 13, 2013, work-related fall. This constitutes competent and substantial evidence that employee's 2015 back surgery was medically causally related to his 2013 compensable injury.

Dr. Cohen further testified to a synergistic effect between employee's hands, back and feet and stated that employee cannot sustain gainful employment "because of all the parts together" with employee's lumbar spine the most limiting, followed by his hands and wrists. ${ }^{3}$ This testimony supports the ALJ's finding that employee's polio disability combined with his carpal tunnel syndrome (and back disability) to result in PTD. We note Dr. Cohen and vocational expert Mr. Benjamin Hughes testified they would consider the employee PTD even considering only his 2013 back injury and 2014 workrelated carpal tunnel syndrome. ${ }^{4}$

Dr. Cohen found that employee's hand condition played a role in causing him to be unable to work in that it caused him to have difficulty with tasks involving use of his hands forcefully. ${ }^{5}$ This constitutes competent and substantial evidence that disability from employee's primary carpal tunnel syndrome occupational disease combined with his qualified preexisting conditions to result in his PTD.

Vocational expert Mr. Hughes' statement that he would not consider employee PTD if, hypothetically, he considered only certain expert opinions in isolation. This does not undermine his conclusion, based on Dr. Malone and Dr. Cohen's opinions and

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[^0]: ${ }^{1}$ Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 182 (Mo banc, 2021).

${ }^{2}$ Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 182 (Mo banc, 2021).

${ }^{3} Transcript, 92-93.

{ }^{4}$ Dr. Cohen further testified that employee would not be able to sustain gainful employment considering only his primary work injury of December 14, in combination with his November 2014 lower back injury. Tr. 93, 121. After originally stating on August 27, 2019, that he considered employee's PTD "from a combination of . . . preexisting issues alongside the primary injury of 12/02/2014" (Tr. 216) vocational expert Benjamin Hughes later opined on March 30, 2020, "per Dr. Cohen's updated report, I find the man's inability to work or compete to be based on his work injuries of 2013 and 2014." Tr. 217.

${ }^{5}$ Transcript, 95.

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restrictions, that employee is not able to compete for, gain, or maintain any job in the open labor market. ${ }^{6}$

We regard the ALJ's reference to the employee's "long history of disabling injuries and health conditions leading up to [his primary injury of] December 2, 2014"7 as extraneous to her ultimate finding that employee's preexisting back and polio-related conditions constituted qualifying preexisting disabilities pursuant to 287.2203.(2)(a) that, in combination with disability from employee's primary injury, resulted in PTD. We disavow this language herein.

We affirm and adopt the award of the ALJ as supplemented herein.

We approve and affirm the ALJ's allowance of attorney's fee herein as being fair and reasonable.

The December 29, 2020, award and decision of Administrative Law Judge Margaret D. Landolt is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 25th \qquad$ 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]: ${ }^{6} Id., 215-216.

{ }^{7}$ Award, p. 8.

I have reviewed and considered all of the competent and substantial evidence in the record. Based on