Robert Cantrell v. Spire, Inc.

On June 23, 1997, employee suffered a right elbow injury. Claimant filed a Workers' Compensation claim (Injury No. 97-057374) that he settled with his employer for 12.5\% permanent partial disability of the right elbow at the 210-week level, or 26.25 weeks.

On October 6, 1998, employee suffered a left elbow injury. Claimant filed a Workers' Compensation claim (Injury No. 98-174159) that he settled with his employer for 15\% permanent partial disability of the left elbow at the 210-week level, or 31.5 weeks.

On August 16, 1999, employee suffered a low back and right shoulder injury. Claimant filed a Workers' Compensation claim regarding both shoulders and the low back (Injury No. 99-138599) that he settled with his employer for a 43 % permanent partial disability of the body as a whole referable to his right shoulder (only) ${ }^{1}$ and low back, or 172 weeks.

On February 23, 2009, employee suffered a right knee injury. Claimant filed a Workers' Compensation claim (Injury No. 09-012376) that he settled with his employer for 24 % of the right lower extremity at the 160-week level, or 38.4 weeks.

Employee also has preexisting psychological conditions of generalized anxiety disorder and major depressive disorder, as diagnosed on October 27, 2014, by psychologist Kevin Mays, PhD. On March 14, 2019, Dr. Allan Schmidt assessed 25\% permanent partial disability due to preexisting psychological conditions.

On October 15, 2018 and February 8, 2019, Dr. Ann Rosenthal performed two independent medical examinations (IME) of employee. Initially, Dr. Rosenthal did not place employee on any restrictions. After the February 8, 2019, IME, Dr. Rosenthal placed restrictions on employee "lifting more than 10 lbs . to chest level with both hands and no repetitive reaching, grasping, pushing or pulling with his right upper extremity." Tr., p. 126.

In the conclusion of her report for the February 8, 2019, IME, Dr. Rosenthal did not opine that employee was permanently and totally disabled, but stated that considering employee's primary injury, "his significant pre-existing injuries previously discussed and need for permanent restrictions, [and] his educational level and age, he will have a difficult time finding employment." Tr., p. 128. Dr. Rosenthal then deferred to a vocational expert.

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[^0]: ${ }^{1}$ Although employee filed an initial Workers' Compensation claim for a bilateral shoulder and a low back injury, the settlement only included the right shoulder and the low back.

On May 15, 2019, after receiving a vocational report from Mr. Terry Cordray (as discussed below), Dr. Rosenthal opined that "practically and realistically, [employee] is permanently totally disabled." Tr., p. 155. She continued, "I would not materially change my opinion under Missouri Statutes that the permanent total disability is based on the synergism of combining the identified pre-existent industrial disabilities, his psychological disability with the additional disabilities attributable to the primary injury claim of $3 / 16 / 18 . "$ Id.

On March 14, 2019, Dr. Allan Schmidt performed an independent psychiatric evaluation of employee and assessed a total psychological disability rating of 40 \%, 25 % of which was due to preexisting conditions and 15 % of which was due to the primary injury. Dr. Schmidt did not opine regarding employee's ability to perform work.

On April 3, 2019, Mr. Terry Cordray performed a vocational assessment of employee. After reviewing all of employee's preexisting conditions, Mr. Cordray opined that employee was "totally vocationally disabled from all jobs due to the physical limitations of his injury of 3/16/18 in combination with his previous physical restrictions and preexisting psychological impairment." Tr., p. 153, emphasis in original.

Section 287.220.3(2) RSMo ${ }^{2}$ provides, in relevant part:

(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)

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

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[^0]: ${ }^{2}$ All statutory references are to the Revised Statues of Missouri, unless otherwise noted.

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent workrelated 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.

According to the recent supreme court decision in Treasurer of State v. Parker, ${ }^{3}$ in order to establish a compensable Second Injury Fund claim under § 287.220.3, an employee must meet two conditions:

(1) have at least one "qualifying" preexisting disability as defined by $\S 287.220 .3(2)(a)$; and

(2) Thereafter sustain a subsequent compensable work-related injury that combined with employee's preexisting disabilit(ies) results in permanent total disability.

Parker further instructs, "[An] employee satisfies the second condition by showing the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition."4

The Second Injury Fund argues that none of employee's preexisting conditions qualify pursuant to $\S 287.220 .3(2)$ (a). Employee asserts that his August 16, 1999 low-back and shoulder injuries, for which he settled with employer for a 43 % permanent partial

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

${ }^{4}$ Id. at 182 .

disability of the body as a whole, or 172 weeks, constitute qualifying preexisting disabilities pursuant to $\S 287.220 .3(2)$ (a), RSMo.

The Second Injury Fund argues that this August 16, 1999 injury cannot qualify because it involves three distinct body parts. We note that even if one divided the permanent partial disability three ways, each of the three body parts would have at least 50 weeks permanent partial disability. Accordingly, we conclude that the August 16, 1999 injury qualifies pursuant to $\S 287.220 .3(2)$ (a), RSMo.

However, because none of the experts in this matter opined that employee was permanently and totally disabled due to the primary injury solely in combination with the disability attributable to the qualifying August 16, 1999 preexisting injury, in accordance with the Missouri Supreme Court's directive in Parker, supra, we conclude that the Second Injury Fund is not liable for employee's permanent total disability benefits. ${ }^{5}$

We reverse the award of the administrative law judge.

We deny employee's claim against the Second Injury Fund because employee was not permanently and totally disabled due solely to a combination of his primary injury and his only qualifying preexisting disability, as defined by statute.

The award and decision of Administrative Law Judge Lawrence Rebman is attached solely for reference.

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[^0]: ${ }^{5}$ In his brief, employee asks this Commission to remand this matter to the Division of the Workers' Compensation in order for him to address that specific question to the experts, namely whether employee was permanently and totally disabled due to the primary injury combined with the August 16, 1999 preexisting injury. We construe this as a request to submit additional evidence, which is governed by Commission rule 8 CSR 20-3.030(2). Employee assumed the risk of relying on a particular appellate court's interpretation of $\S 287.220$ as applied to post-2014 claims knowing that the issue was under review by the Missouri Supreme Court while employee's claim was pending. Nothing precluded employee from addressing alternative theories of liability at the time of the September 10, 2020, hearing. With the exercise of reasonable diligence, employee could have offered evidence substantially the same as that he now seeks to submit at the hearing before the administrative law judge. We are not convinced that the interests of justice require a departure in this case from our general policy opposing the submission of additional evidence. We deny such request.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of September 2021.


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K.