Wesley Davis v. Lazer Spot, Inc.

(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; 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.

Under § 287.220, "[p]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined."1 In order to establish a compensable SIF claim under § 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. ${ }^{2}$

A "qualifying" preexisting disability need not have been known to employee or reached maximum medical improvement before employee's primary work injury. ${ }^{3}$

Based upon our understanding of Parker, we do not believe that employee is permanently and totally disabled based upon a combination of his August 22, 2014, primary injury (2014 injury) and his qualifying preexisting disabilities. We base our decision on reports and depositions of vocational expert Mr. Gary Weimholt, Dr. David Volarich, and Dr. Robert Bernardi.

[^0]

[^0]: ${ }^{1} Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

{ }^{2} Parker, 622 S.W.3d 178 (Mo. banc Apr. 20, 2021).

{ }^{3}$ Id. at 182 .

**Injury No. 14-063032**

- 3 -

Drs. Volarich and Bernardi considered all of employee's preexisting disabilities prior to employee's 2014 injury in their determinations of whether or not employee was permanently and totally disabled. Although Dr. Volarich's medical report did discuss the synergistic effects of his left and right knee disabilities in conjunction with employee's 2014 injury,[^4] there was no testimony by Drs. Volarich, Bernardi, or vocational expert Mr. Weimholt that specifically stated how employee's left knee preexisting disability by itself, or both of employee's knees directly and significantly aggravated or accelerated employee's 2014 injury.

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

Given at Jefferson City, State of Missouri, this 13th day of September 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornelo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

[^4]: See Transcript, at 1587-88.

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."5

I believe that the commission may still consider other non-qualifying disabilities. The commission must look at the individual as a whole and consider everything together 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 prior low back, left knee and right knee disabilities and his 2014 primary injury combined to make him permanently and totally disabled and entitled to Second Injury Fund benefits.

The fact that Drs. Volarich, Bernardi and vocational expert Mr. Weimholt 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 low back 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

[^0]

[^0]: ${ }^{1}$ Treasurer of State v. Parker, 622 S.W.3d 178 (Mo. banc Apr. 20, 2021).

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 08, 2020

14-063032

Scan Copy

*Employee . . . . : WESLEY L DAVIS

133165776 118 NORTH VENTURA APT C JEFFERSON CITY, MO 65109

*Asst Atty General: ATTY GENERAL ERIC SCHMITT

133165769 PO BOX 899

SUPREME COURT BLDG

JEFFERSON CITY, MO 65102

*Employee Attorney: RUDOLPH L VEIT

515 EAST HIGH STREET

PO BOX 28

JEFFERSON CITY, MO 65102

\# Denotes that the Division sent a copy of the Award by electronic mail to the email address that the party provided. The Certificate of Service for this document is maintained in the Division's records.

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

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

WC-142 (06-15)

AWARD OR HEARING

RLP

Relay Missouri: 800-735-2966

Missouri Division of Workers' Compensation is an equal opportunity employer/program.

Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: Wesley Davis

Injury No.: 14-063032

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Lazer Spot, Inc.

Before the

DIVISION OF WORKERS' COMPENSATION

Additional Party: Treasurer of the State of Missouri

Department of Labor and Industrial

Custodian of the Second Injury Fund

Relations of Missouri

Jefferson City, Missouri

Insurer: $\quad \mathrm{N} / \mathrm{A}$

Hearing Date: June 26, 2020

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 22, 2014
5. State location where accident occurred or occupational disease was contracted: Cole County, MO
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? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
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: Low back
14. Nature and extent of any permanent disability: 20 % body
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: $\ 346.97
4. Method wages computation: By agreement

1. Amount of compensation payable: Employer previously settled.
2. Second Injury Fund liability: No
3. Future Requirements Awarded: None