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. Curls, Member

Attest:

I agree that the Supreme Court's recent decision in Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178 (Mo banc 2021) stands for the proposition that in order to establish Second Injury Fund (Fund) liability, an employee must show that a primary injury resulted in permanent and total disability (PTD) "when combined with all preexisting disabilities that qualify under [§ 287.220.3(2)(a)]." However, Parker also specifically stated "the existence of non-qualifying disabilities does not count against (or for) the claimant in evaluating whether he meets the second threshold condition." ${ }^{6}$

As recently noted by the Eastern District Court of Appeals in Christopher Klecka v. Treasurer of Missouri as Custodian of the Second Injury Fund, (June 22, 2021, ED 108721), August 10, 2021, Motion for Rehearing/Transfer to SC denied: August 25, 2021, Application for Transfer to SC filed in SC:

What "is not expressed" [in Chapter 287] is that section 287.220 .3 is designed to be a tidy, self-executing legislative packet to adjudicate all issues relevant to a PTD claim against the Fund. What is expressed is that PTD claims against the Fund continue to be governed by section 287.200 and the ultimate question of total disability continues to be governed by section 287.020 .6 .

Id. at 15 n.6.

The court in Klecka, continues:

In sum, the legislature instructs us in section 287.220 .3 to look through the lens of qualifying injuries when deciding who pays for a disabled employee's PTD, the Fund or the employer. The Fund has to pay only when the employee is PTD and has a qualifying injury. In section 287.020.6[,] the legislature instructs us to look through the lens of "a reasonable employer" deciding whether the disabled employee is PTD. Section 287.020 .6 and its longstanding case law require us to consider whether "a reasonable employer in the usual course of business would reasonably be expected to employ the employee in his or her present physical condition." Furthermore, the legislature instructs us to read these sections together in 287.220.3. The only way to harmonize and give both sections their full meaning is to look at all of the employee's physical conditions as well as other considerations such as age, education, and transferable work skills when analyzing whether an employee is PTD. Section 287.220 .3 simply tells us who is responsible for payment of the PTD, the Fund or the employer, when such is proven.

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[^0]: ${ }^{6}$ Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 182 (Mo banc 2021).

Id., at 20 (emphasis in original).

Pursuant to $\S 287.020 .6$, RSMo, "total disability" means the "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." Courts have consistently construed $\S 287.020 .6$, RSMo, as a test "whether, given the claimant's situation and condition he is competent to compete in the open labor market." Klecka v. Treasurer, (June 22, 2021, ED 108721) at 20 (inner citations omitted).

Then, separately, one looks to $\S 287.220 .3$, RSMo, to determine if a PTD claimant meets the criteria to impose Fund liability, namely, a qualifying primary injury that combined with one or more qualifying preexisting disabilit(ies), either with or without other non-qualifying conditions, to result in that PTD, as defined by § 287.020.6, RSMo.

Based upon my interpretation of the Supreme Court's decision in Parker, and the medical, psychological, and vocational expert opinions in this case, the disability attributable to employee's primary injury combined with the qualifying preexisting disability relating to his August 16, 1999, low back and shoulder injury in addition to other non-qualifying conditions of ill-being to make employee PTD and entitled to Second Injury Fund (Fund) benefits.

The fact that Dr. Anne Rosenthal and vocational expert Mr. Terry Corday considered employee's non-qualifying preexisting disabilities as part of their PTD determination, which included an evaluation of whether employee's preexisting shoulder and low back conditions satisfied the criteria set out in 287.220.3(2)(a), does not preclude Fund liability in this case.

For these reasons, I would find the Fund liable for employee's PTD. Because the majority of the commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls, Member

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

DECEMBER 10, 2020

18-019636

Scan Copy

*Employee: ROBERT G CANTRELL* Employee Attorney: JOSHUA P PERKINS 13316935 4 25717 S RODIER RD 5440 N OAK TRFY STE 100 FREEMAN, MO 64746-6169 KANSAS CITY, MO 64118-4605 #Asst Atty General: ATTY GENERAL ERIC SCHMITT 615 E 13TH ST STE 401 KANSAS CITY, MO 64106

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

W0-142 (06-15) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

1. Are any benefits awarded herein? Yes
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: March 16, 2018
5. State location where accident occurred or occupational disease was contracted: Harrisonville, Cass 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 sustained injury by accident to his right upper extremity while he was lifting and pulling a bottle of gas while changing a meter.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

1. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Right arm, right shoulder, right bicep.
2. Nature and extent of any permanent disability: 20 % permanent partial disability of the right upper extremity at the 232 week level per the Stipulation for Compromise Settlement.
3. Compensation paid to-date for temporary disability: $\ 12,946.05.
4. Value necessary medical aid paid to date by employer/insurer? $\ 64,380.42.
5. Value necessary medical aid not furnished by employer/insurer? N/A
6. Employee's average weekly wages: sufficient for the maximum compensation rate.
7. Weekly compensation rate: $\ 897.25 for permanent total disability and $\ 483.48 for permanent partial disability.
8. Method wages computation: By stipulation

1. Amount of compensation payable: See below.
2. Second Injury Fund liability: The Second Injury Fund is liable to Employee for $\ 413.77 ( $\ 897.25 - $\ 483.48 ) per week beginning November 19, 2018 through October 9, 2019 for a total of $\ 19,198.93 ( $\$ 413.77 \times 46.40$ ). Effective October 10, 2019, the Second Injury Fund is liable to the Employee for permanent and total disability benefits at the maximum rate of $\ 897.25 per week beginning on October 10, 2019, when the employer's liability ended.

The compensation awarded to the Employee shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Joshua P. Perkins for the necessary legal services rendered to the Employee.

Employee: Robert Cantrell

Injury No: 18-019636

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

Employer: Spire, Inc. (settled)

Additional Party: Missouri State Treasurer, As Custodian for the Second Injury Fund

Insurer: Self-Insured (settled)

Hearing Date: September 10, 2020

Briefs Filed: October 13, 2020

Checked by: LGR/lh

On September 10, 2020, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Robert Cantrell, appeared in person and with counsel, Joshua P. Perkins. The Second Injury Fund appeared through Assistant Attorney General, Shelly Hinson. There was no appearance on behalf of the Employer and Insurer as the claim between the Employer and the Employee previously settled.

The parties stipulated that:

1. On or about March 16, 2018, ("the injury date"), Robert Cantrell was an employee of Spire, Inc.;
2. The employer/insurer was operating subject to Missouri's Workers' Compensation Law;
3. The employer's liability was fully self-insured;
4. Venue is proper in Kansas City, Jackson County, Missouri;
5. A Claim for Compensation was filed within the time prescribed by law;
6. The employer received notice of said injury within the time prescribed by law;
7. On or about March 16, 2018, Robert Cantrell sustained an accident or occupational disease arising out of and in the course of his employment;
8. At the time of the alleged occupational disease or accident, Employee's average weekly wage was sufficient for the maximum compensation rate of $\ 897.25 for permanent total disability benefits and $\ 483.48 for permanent partial disability benefits;
9. The employer paid $\ 12,946.05 in temporary total disability compensation for Employee's work injury of March 16, 2018;

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Robert Cantrell

1. Medical aid was provided in the amount of $\ 64,380.42 for Employee's work injury of March 16, 2018; and 11. Employee settled his March 16, 2018, claim against the employer/insurer for 20 % permanent partial disability to the right shoulder per the Stipulation for Compromise.

The remaining issues were as follows:

1) Whether Employee's preexisting conditions represent an obstacle or hindrance to employment or ability to maintain employment should Employee become employable; and

2) Whether the Second Injury Fund is liable for permanent total disability compensation.

The Employee, Robert Cantrell, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

1 Original Claim for Compensation 07-27-18

2 Original Answer to Claim for Compensation 08-08-18

3 Amended Claim for Compensation (Second Injury Fund) 01-10-19

4 Answer to Claim for Compensation (Second Injury Fund) 01-22-19

5 Dr. Anne Rosenthal (report) 12-8-18

6 Dr. Anne Rosenthal (report) 03-09-19

7 Dr. Allan Schmidt (report) 03-22-19

8 Terry Cordray (report) 05-03-19

9 Dr. Anne Rosenthal (addendum) 03-22-19

10 Apex Orthopedics and Sports Medicine 03-26-18 thru 08-22-18

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

11 Apex Orthopedics and Sports Medicine

12 WeCare Counseling

Stipulation for Compromise Settlement

Stipulation for Compromise Settlement (Employer)

(Injury No. 18-019636)

(20% of the right shoulder)

Prior Psychological Conditions

14 Dr. Janie Kilmer

15 Psychiatry Associates of KC - Dr. Kevin Mays

Prior Low Back/Right Shoulder (Injury No.: 99-138599)

16 Stipulation for Compromise Settlement

(Injury No.: 99-138599)

(43% BAW referable to right shoulder and low back)

17 Report of Dr. P. Brent Koprivica

18 Stipulation for Compromise Settlement (SIF)

(Injury No.: 99-138599)

(12.5% of the RUE at the 210-week level)

Prior Right Knee (09-012376)

19 Stipulation for Compromise Settlement

(Injury No.: 09-012376)

(24% of the RLE at the 160-week level)

20 Rating Report of Dr. Ronald Stitt, M.D.

21 Dr. Ronald Stitt, M.D.

22 Stipulation for Compromise Settlement

(Injury No.: 97-057374)

(12.5% of the RUE at 210-week level)

23 Stipulation for Compromise Settlement

(Injury No.: 98-174159)

(15% of the LUE at the 210-week level)

11-16-18

12-10-18 thru

12-31-18

12-13-18

10-26-15 thru

11-23-15

10-27-14 thru

12-27-18

07-26-04

04-15-04

12-06-04

11-24-09

05-20-09 thru

07-10-09

02-07-01

02-07-01

24 Terry L. Cordray 11-04-19

25 Dr. Allan Schmidt 01-02-20

The Second Injury Fund offered the following exhibit which was admitted into evidence without objection:

i. Claimant's Deposition dated August 2, 2019

Based on the above exhibits and the testimony of the witness, this Court makes the following findings:

The Employee, Robert Cantrell, was present at the hearing and his testimony was credible. Employee is a 61-year-old, white male born on August 10, 1959. Employee graduated from Drexel Missouri High School in 1977 and has no formal education after high school.

Employee's work history can be summarized as follows: Following high school, Employee worked for two years at a welding shop as a "helper". Employee later worked for one year at a different welding shop where he painted roll bars and brush guards on trucks. Employee next worked for Western Electric in 1984 - 1985 as an assembler. Employee operated a coil winder. He would take the coil off the machine and place it in a pan. He was an inspector of parts. After six months, he was furloughed. Employee then worked for General Motors as an assembler. He used an air-powered sander. He would sand wet cars after the primer and before they were painted. He would walk alongside the moving vehicle on the assembly line. He also performed a different task of snapping a fire-retardant fiberglass liner on the inside of the hood. Employee began employment with Spire Energy Service in 1987. He began as a technician. Employee would obtain a work order to go to a Spire customer/resident's home to complete various tasks including, but not limited to, turning on gas, light a pilot light, read a gas meter, check for gas leaks, and install new gas meters.

On March 16, 2018, Employee sustained injury to his right upper extremity while he was lifting and pulling a bottle of gas while changing a meter. Employee reported the injury and was initially examined at US Healthworks on March 16, 2018. An MRI of the right shoulder was performed on March 22, 2018, which revealed a partial rotator cuff tear and AC joint degenerative disease.

On March 26, 2018, Employee was evaluated by orthopedic surgeon, Dr. Michael McCabe. Dr. McCabe ordered physical therapy. Employee was to follow-up in two weeks for consideration of cortisone injections if Employee had continued difficulty and discomfort. Employee followedup with Dr. McCabe on April 9, 2018. Dr. McCabe ordered an additional two weeks of physical

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

therapy before proceeding with treatment from a surgical standpoint. On April 23, 2018, Dr. McCabe recommended surgery consisting of a right shoulder arthroscopy subscapularis repair with open versus arthroscopic biceps tenodesis.

On May 22, 2018, Employee underwent surgery with Dr. McCabe consisting of a right shoulder arthroscopic rotator cuff repair, right shoulder arthroscopic biceps tenodesis and right shoulder extensive arthroscopic debridement.

Employee presented to his post-operative appointment with Dr. McCabe on June 4, 2018. Employee reported irritation of the anterior incision with yellow drainage. Dr. McCabe noted indication of a Popeye deformity of the right biceps muscle which was asymmetric when compared to the left side. Employee was prescribed antibiotics and was to follow-up in one week.

On June 11, 2018, Employee followed up with Dr. McCabe. Dr. McCabe noted mild Popeye deformity visible in the right bicep. Employee was to wear a sling for a total of six weeks and begin physical therapy in one week. Dr. McCabe placed restrictions of no active resisted internal rotation for six weeks post-op.

Employee followed-up with Dr. McCabe on July 6, 2018. Employee had pain with subscapularis testing. Dr. McCabe ordered additional physical therapy. Dr. McCabe placed restrictions of no lifting over three pounds with the right arm, no repetitive lifting/grasping activity with the right arm. On August 17, 2018, Employee followed up with Dr. McCabe. Dr. McCabe continued physical therapy and placed restrictions of no lifting/pushing/pulling/twisting over ten pounds with the right arm.

Employee was released at maximum medical improvement for his right shoulder injury by Dr. McCabe on November 19, 2018.

Employee currently has multiple complaints related to his March 16, 2018, right shoulder/bicep injury. Employee has pain in his right shoulder and bicep every day. Employee has decreased range of motion and decreased strength of his right shoulder. Employee has pain in the back of his shoulder. Employee has difficulty lifting and turning his right arm. Employee has difficulty opening and closing doors. Employee is unable to lift above his head or extend his arms out in front of him. Employee has difficulty performing simple tasks such as washing his back. Employee's pain averages 3/10 with a high of 6/10 and a low of 2/10. Employee describes his pain as aching and burning and the duration to be constant.

Employee was evaluated by Dr. Anne Rosenthal on February 8, 2019, who opined that Employee needed permanent restrictions of no use of the right arm at or above shoulder level, no lifting more than 10 pounds to chest level with both hands and no repetitive reaching, grasping, pushing or pulling with his right upper extremity.

EMPLOYEE'S PRE-EXISTING INJURIES

Right Upper Extremity (Injury No.: 97-057374)

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

Prior to the March 16, 2018, primary injury, Employee suffered a June 23, 1997, right elbow injury while working for Missouri Gas Energy and Southern Union Company. Employee began developing progressive right lateral elbow pain. Employee associated this injury with repetitive upper extremity use activities including using the "pokey bar" as well as the use of wrenches.

Employee treated with Dr. Reed beginning on August 7, 1997 and employee underwent an injection of the lateral epicondyle. On November 20, 1997, Employee received a second injection. Employee ultimately underwent surgery consisting of a right lateral epicondylectomy on May 6, 1998 performed by Dr. Reed. Employee was released from medical treatment on July 16, 1998.

Dr. Rosenthal opined that Employee should have the following restrictions for his right arm: no lifting with the right elbow extended and no pushing or pulling with the right arm. Employee settled this claim with the employer for 12.5% of the right elbow at the 210-week level on February 7, 2001 per the Stipulation for Compromise Settlement.

**Left Upper Extremity (Injury No.: 98-174159)**

Prior to the March 16, 2018, primary injury, Employee suffered an October 6, 1998, left elbow injury while working for Missouri Gas Energy and Southern Union Company. Employee began developing problems with his left elbow due to his repetitive job duties.

Employee was evaluated by Dr. McCormack on August 24, 1998, and was diagnosed with bilateral lateral epicondylitis. Employee underwent a left lateral epicondyle steroid injection on October 12, 1998 with Dr. McCormack. Employee ultimately underwent surgery consisting of a left lateral epicondylar release with Dr. McCormack on February 2, 1999. Employee was released from treatment on June 16, 1999.

Dr. Rosenthal opined that Employee should have the following restrictions for his left arm: no lifting with the left elbow extended and no pushing or pulling with the left arm. Employee settled this claim with the employer for 15% of the left elbow at the 210-week level on February 7, 2001 per the Stipulation for Compromise Settlement.

**Low Back/Right Shoulder (Injury No.: 99-138599)**

Prior to the March 16, 2018, primary injury, Employee suffered an August 16, 1999 low back and right shoulder injury while working for Missouri Gas Energy.

Employee was initially treated at the emergency room at Lee's Summit Medical Center and was initially diagnosed with a cervical strain on August 16, 1999. Employee was referred to orthopedic surgeon, Dr. McCormack on September 15, 1999 and was diagnosed with bilateral traumatic impingement of shoulders. Employee underwent a right shoulder arthroscopic subacromial decompression with Dr. McCormack on January 20, 2000. Employee was referred to orthopedic surgeon, Dr. Glenn Amundson on April 24, 2000 for continued low back pain with radiating pain down his right leg with cramping. Dr. Amundson diagnosed Employee with low back pain and radiculopathy. An MRI of the lumbar spine was performed on May 6, 2002. Employee was released at MMI for his right shoulder on May 31, 2000. Dr. Amundson

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

recommended surgery consisting of a lumbar fusion. Employee was sent for a second opinion with Dr. Adrian Jackson. Dr. Jackson performed surgery consisting of an anterior/posterior fusion at the L4-L5 level.

Dr. Rosenthal opined that Employee should have the following restrictions for his right arm: no use of either arm above head, no lifting above head and no lifting more than 20 pounds to his chest with both arms. Dr. Rosenthal opined that Employee should have the following restrictions for his low back: no repetitive bending or twisting, be allowed to sit, stand and change positions as needed, no climbing, avoid jarring or vibration of the back such as operating heavy equipment or over the road commercial driving, no activities that cause whole body vibrations, avoid sustained or awkward postures of the lumbar spine, no squatting, crawling or kneeling, no lifting from floor level.

Employee settled this claim with the employer for 43% of the body as a whole on July 26, 2004 referable to his right shoulder and low back per the Stipulation for Compromise Settlement.

Right Knee (Injury No.: 09-012376)

Prior to the March 16, 2018, primary injury, Employee suffered a February 23, 2009, right knee injury while working for Missouri Gas Energy. Employee underwent surgery consisting of an arthroscopy partial medial meniscectomy of the right knee on May 20, 2009 with Dr. Ronald Stitt. Dr. Rosenthal opined that Employee should have the following restrictions for his right knee: no twisting, no kneeling, no squatting and be allowed to sit as needed. Employee settled this claim with the employer for 24% permanent partial disability of the right lower extremity at the 160 week level on July 26, 2004 per the Stipulation for Compromise Settlement.

Psychological Conditions

Prior to the March 16, 2018, primary injury, Employee suffered from depression, anxiety and post-traumatic stress disorder. Employee sought and received treatment for these conditions prior to his primary injury. Employee reported that he is taking the following medications: trazodone, escitalopram, lorazepam, omeprazole, rosuvastatin, linzess, mupirocin, pro-air inhaler and pramipexole. Prior to the primary injury, Employee treated with psychologist, Kevin Mays, PhD. Employee was diagnosed with generalized anxiety disorder and major depressive disorder on October 27, 2014. Employee was formally diagnosed with post-traumatic stress disorder (PTSD) on December 27, 2018 by Dr. Mays. Dr. Mays noted that the PTSD diagnoses should have been included in the fall of 2015 after his daughter's suicide in 2015. Employee also received treatment from counselor, Janie Kilmer, LPC beginning October 26, 2015 for his depression related to his daughter's suicide. Following the primary injury, Employee's depression, anxiety and PTSD worsened and he treated with psychiatrist, Holly Chatain, PsyD. Dr. Chatain diagnosed Employee with post-traumatic stress disorder, panic disorder and major depressive disorder. Employee was referred for EAP services with Dr. Chatain following a minor fender bender accident in February of 2018 which resulted in the employer installing a camera in his work vehicle. Employee reported that the camera made him nervous and he felt like he was being watched. This created a great deal of stress and anxiety for Employee. Employee reported that he had seen a psychiatrist and counselor beginning prior to the March 16, 2018, injury with the primary focus being his depressive thoughts related to his daughter's suicide. Employee denied

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

suicidal ideation or intent but did recognize for considerable amount of time following his daughter's suicide he wished he were dead.

Employee continues to suffer from depression, anxiety, panic disorder and PTSD. His depression and anxiety have been worsened by the March 16, 2018 primary injury.

Employee's pre-existing psychological conditions made performing his job duties more difficult. The installation of a camera in his work vehicle aggravated his pre-existing psychological conditions a great deal. Employee would not be able to return to a workplace in which he felt closely monitored or in a workplace that requires making decisions that could potentially be life threatening for others.

Dr. Allan Schmidt performed an independent psychiatric evaluation on March 14, 2019. Dr. Schmidt noted that Employee continues to receive psychiatric and psychological treatment and will need these services indefinitely. Dr. Schmidt assigned an overall permanent partial impairment disability rating of 40 % to the body as a whole for Employee's collective psychological/psychiatric conditions. Dr. Schmidt assigned 25 % of that rating to Employee's preexisting psychological conditions that predated the March 16, 2018, primary injury, and 15 % was apportioned to the March 16, 2018, primary injury.

Workers' compensation law was "intended to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment..." James v. CPI Corp., 897 S.W.2d 92, 94 (Mo.App.E.D.1995) (citation omitted).

The Second Injury Fund was created to "encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury." Hall v. Missouri State Treasurer, 500 S.W.3d 282, 286 (Mo. App. S.D. 2016) (internal quotation omitted). The Fund "is responsible for the portion of disability attributable to the preexisting condition." Wickham v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, 499 S.W.3d 751, 756 (Mo. App. W.D. 2016). In 2013, the Missouri General Assembly modified the Second Injury Fund statute, Section 287.220. These changes went into effect on January 1, 2014. The Second Injury Fund is funded by a surcharge on every worker's compensation policyholder insured pursuant to Chapter 287. R.S.Mo. §287.715 2013

Section 287.220.3(2) provides, in relevant part:

(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 compensable injury as defined in section 287.020 ;[6] 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 preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability[7] as defined under this chapter[.]

To recover against the Fund, Employee has to establish that pursuant to Section 287.220.3(2) that he had: (1) a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation which was a direct result of a compensable injury under the workers' compensation act; and (2) he thereafter sustained a compensable work-related injury that, when combined with the preexisting disability, resulted in a permanent total disability. Section 287.220.3(2)(a)b.

Claimant suffers from multiple preexisting disabilities involving his right and left shoulders, right and left elbows, right knee and low back. It is Employee's August 16, 1999, work related injury that satisfies the first threshold as a compensable injury resulting in fifty weeks or more of permanent partial disability compensation. Employee offered Exhibit 16 which is a Stipulation for Compromise Settlement for Injury No. 99-138599. Exhibit 16 confirms that Employee settled his claim against Missouri Gas Energy for 43 % to the body as a whole or 172 weeks of compensation. The evidence presented supports the finding that Employee's work related injury to his low back and right shoulder sustained on August 16, 1999, met the statutory threshold of 287.220 .3 (2)(a)a(ii) in that he had a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation, which was a direct result of a compensable injury under the Workers' Compensation Act.

The evidence herein does show that Employee suffers from multiple preexisting disabilities involving his right and left upper extremities, right knee and low back as well as pre-existing psychological conditions consisting of depression, anxiety and PTSD.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

In addition to Employee's March 16, 2018, primary injury to his right shoulder and right bicep, Employee suffers from multiple preexisting injuries to his left and right upper extremities, low back, right knee and psychological conditions. Dr. Rosenthal is of the opinion that Employee's history of injuries to his right and left upper extremities, right knee and low back and pre-existing psychological conditions consisting of depression and PTSD constitutes an obstacle to employment or reemployment if unemployed and needs consideration in his total disability that preexisted the March 16, 2018, primary work injury. The evidence supports Dr. Rosenthal's findings.

Prior to the March 16, 2018, primary injury claim, Employee had significant ongoing complaints regarding his right upper extremity but continued to work at Spire. Employee required surgery to his right shoulder, several months of physical therapy and functional limitation. Employee has pain in his right shoulder every day. Employee has significant decreased range of motion and decreased strength in his right shoulder. Employee is unable to lift any weight above his head.

Prior to the March 16, 2018, primary injury claim, Employee suffered a June 23, 1997, right elbow injury. Dr. Rosenthal opined that Employee should have the following restrictions for his right arm: no lifting with the right elbow extended and no pushing or pulling with the right arm. Dr. Rosenthal assigned a 12.5 percent permanent partial disability rating of the right elbow at the 210-week level.

Employee suffered an October 6, 1998, left elbow injury. Dr. Rosenthal opined that Employee should have the following restrictions for his left arm: no lifting with the left elbow extended and no pushing or pulling with the left arm. Dr. Rosenthal assigned a 15 percent permanent partial disability rating of the left elbow at the 210-week level.

Employee suffered an August 16, 1999 low back and right shoulder injury. Employee ultimately underwent a right shoulder arthroscopic subacromial decompression and surgery consisting of an anterior/posterior fusion at the L4-L5 level. Dr. Rosenthal opined that Employee should have the following restrictions for his right arm: no use of either arm above head, no lifting above head and no lifting more than 20 pounds to his chest with both arms. Dr. Rosenthal opined that Employee should have the following restrictions for his low back: no repetitive bending or twisting, be allowed to sit, stand and change positions as needed, no climbing, avoid jarring or vibration of the back such as operating heavy equipment or over-the-road commercial driving, no activities that cause whole body vibrations, avoid sustained or awkward postures of the lumbar spine, no squatting, crawling or kneeling, no lifting from floor level. Dr. Rosenthal assigned a 43 percent permanent partial disability rating of the body as a whole for Employee's low back injury requiring a fusion and right shoulder injury requiring surgery.

Employee suffered a February 23, 2009, work-related right knee injury. Employee underwent surgery consisting of an arthroscopy partial medial meniscectomy of the right knee on May 20, 2009. Dr. Rosenthal opined that Employee should have the following restrictions for his right knee: no twisting, no kneeling, no squatting and be allowed to sit as needed. Dr. Rosenthal assigned a 24 percent permanent partial disability rating of the right lower extremity at the 160-week level.

Employee suffers from depression, anxiety, panic disorder and PTSD, predating the March 16, 2018 primary injury for which he was treated by a psychiatrist and counselor for several years. Dr. Schmidt assigned an overall permanent partial disability rating of 40 % to the body as a whole for Employee's collective psychological/psychiatric conditions. Dr. Schmidt apportioned 25\% of that rating to Employee's pre-existing psychological condition that predate the March 16, 2018 primary injury, and 15 % of that rating was apportioned to the December 13, 2013 primary injury.

Employee continues to suffer from depression, anxiety and PTSD. Employee is taking multiple medications including Prozac, Ativan, Adderall and Abilify for his anxiety and depression. Employee has reduced care for personal hygiene due to forgetfulness and apathy. Employee avoids driving due to anxiety. Employee has difficulty remembering and following simple instructions. Employee has difficulty concentrating for a reasonable amount of time.

In conclusion, Dr. Rosenthal is of the opinion that Employee's pre-existing disabilities outlined above and the additional disability caused by the March 16, 2018 primary injury, render Employee permanently and totally disabled. The medical records presented support the Employee's testimony that his multiple preexisting injuries and conditions represent significant preexisting industrial disabilities prior to the March 16, 2018 primary injury. Dr. Rosenthal is of the opinion that the preexisting and primary disabilities in combination have an enhancement factor of 15 % above the arithmetic sum of the separate disabilities and is felt to be appropriate.

The Fund argues that this Court should not consider Employee's following preexisting injuries as they do not result in permanent partial disability compensation of fifty weeks or more:

(1) June 23, 1997, work-related right elbow injury that settled for 12.5 % permanent partial disability at the 210 -week level or 26.25 weeks of compensation;

(2) October 6, 1998, work-related left elbow injury that settled for 15 % permanent partial disability at the 210 -week level or 31.50 weeks of compensation;

(3) February 23, 2009, work-related right knee injury that settled for 24 % of the right lower extremity at the 160 -week level or 38.40 weeks of compensation; and

(4) Employee's preexisting psychological conditions that Dr. Schmidt rated at 25 % to the body as a whole referable to Employee's preexisting PTSD, depression, and anxiety disorders which results in 100 weeks of compensation.

The Fund argues that because Dr. Rosenthal and vocational expert, Terry Cordray, considered Employee's preexisting injuries outlined above in reaching their opinions that Employee was permanently and totally disabled, that these additional injuries and disabilities remove Employee from Fund liability under the statute because there was no proof that these injuries fell within items (i), (ii), (iii), or (iv) of subparagraph a. of Section 287.220.3(2)(a). The Fund argues that the above referenced prior injuries and psychological conditions make Employee ineligible for Fund liability.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

The provisions of Chapter 287 shall be construed strictly and evidence shall be weighed impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflict. RSMo. § 287.800. The Courts have explained that:

> A strict construction of a statute presumes nothing that is not expressed. The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it does mean that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

*Allcorn v. Tap Enters, Inc.,* 277 S.W.3d 823, 828 (Mo. App. S. D. 2009)

The fundamental rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning. *Abrams v. Ohio Pacific Exp.,* 819 S.W.2d 338, 340 (Mo. banc 1991). There is no room for construction where words are plain and admit to but one meaning. *Id.* Further, where no ambiguity exists, there is no need to resort to the rules of construction. *Id.* In determining whether the language is clear and unambiguous, the standard is whether the statute's terms are plain and clear to one of ordinary intelligence. *Wolff Shoe Co. v. Director of Revenue,* 762 S.W.2d 29, 31 (Mo. banc 1988). Moreover, the plain and unambiguous language of a statute cannot be made ambiguous by administrative interpretation and thereby given a meaning which is different from that expressed in a statute's clear and unambiguous language. *Id. State ex rel. Doe Run Co. v. Brown,* 918 S.W.2d 303, 306 (Mo. App. 1996).

The Second Injury Fund argues that Employee's prior workers' compensation settlements do not meet the threshold requirement of §287.220.3.2.(a)a. In *Parker,* the Court of Appeals for the Western District of Missouri held that if the court were to adopt the Fund's argument, that under the language of the statute everything that is considered in determining if an employee is permanently and totally disabled must fall within items (i), (ii), (iii), or (iv) of subparagraph a. or the Fund cannot be held liable for a claim, the Commission and courts would be prohibited not only from considering other injuries, disabilities or physical limitations, but also from considering things such as the employee's age, weight, employment history, educational history, potential for retraining, physical limitations, etc. in determining Fund liability. *Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker,* WD 83030. The Western District went on to state that "[t]his would effectively eliminate all liability of the Fund for all claims, as every individual is unique and almost every individual will have some personal characteristics other than qualifying work related injuries that will affect their ability to be employed on the open labor market." *See Parker,* pg. 24

*Parker* holds that the Commission and trial courts *may* consider an employee's other disabilities or injuries in determining if an employee is permanently and totally disabled subjecting the Fund to liability. The Western District found in *Parker* that so long as an employee has a

preexisting disability that satisfies one of the thresholds in Subsection 3 and the employee has a qualifying subsequent injury, then the Commission and trial courts can consider less serious preexisting injuries and disabilities as well as other characteristics of the individual in determining whether an employee is permanently and totally disabled. (emphasis added). The combination of the prior documented preexisting disabling compensable injuries to exceed the 50 week threshold is consistent with the intent of the Workers' Compensation Statutes as well Second Injury Fund law to make it "responsible for the portion of disability attributable to the preexisting condition." Wickham v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, 499 S.W.3d 751, 756 (Mo. App. W.D. 2016). Any contrary determinations seek to place work related compensable losses on the last employer alone or upon the Social Security and Medicaid system. James v. CPI Corp., 897 S.W.2d 92, 94 (Mo.App.E.D.1995).

In the present case, the pre-existing compensable injury that occurred on August 16, 1999 involved the right shoulder, left shoulder and low back and settled for 43 % body as a whole, equaling 172 weeks of disability. The injury resulted in a disability that affects multiple body parts not multiple disabilities. Therefore, Employee has satisfied his burden of proof that his August 16, 1999, injury met the statutory threshold of 287.220 .3 (2)(a) (ii) in that he had a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation, which was a direct result of a compensable injury under the Workers' Compensation Act. This allows this Court to review and consider not only Employee's age, weight, employment history, etc., but also Employee's preexisting injuries to his right elbow, left elbow, right knee, right shoulder and low back as well his preexisting psychological conditions.

Once the medical restrictions and opinions are established, the determination of whether Employee is permanently and totally disabled is a question of whether Employee is able to compete in the open labor market with the given medical restrictions. Forshee v. Landmark Excavating and Equip., 165 S.W.3d 533, 537 (Mo. App. E.D. 2005) ("The pivotal question is whether an employer can reasonably be expected to hire this employee, given his present physical condition, and reasonably expect him to successfully perform the work.") Sutton v. Vee Jay Cement Contracting Co., 37 S.W. 3d 803, 811 (Mo. App. E.D. 2000). This determination is left to a vocational expert. The only vocational evidence presented in this case was the expert testimony of Terry Cordray who evaluated the Employee. The Second Injury Fund did not present any vocational evidence to contradict or impeach the report and testimony of Terry Cordray. Terry Cordray is of the opinion that Employee is unemployable in the open labor market. Terry Cordray found Employee to be unemployable in the open labor market due to a combination of the restrictions attributable to Employee's pre-existing injuries involving his right elbow, left elbow, right knee, right shoulder, low back, and psychological conditions as well as the additional restrictions imposed on Employee from the March 16, 2018 primary work injury.

Employee has also satisfied the second threshold question set forth in 287.220 .3 (2)(a) b. Employee sustained a compensable work injury on March 16, 2018, while employed by Spire. This claim was settled with the employer on December 13, 2018, for 20 % permanent partial disability of the right upper extremity at the 232 -week level. As a result of the March 16, 2018 primary injury, Employee underwent surgery with Dr. McCabe consisting of a right shoulder arthroscopic rotator cuff repair, right shoulder arthroscopic biceps tenodesis and right shoulder

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

extensive arthroscopic debridement. Dr. Rosenthal noted that Employee continues to have ongoing symptoms of significant right shoulder pain, loss of range of motion, no ability to perform overhead lifting with the right arm, and a Popeye effect due to the torn bicep tendon. The evidence is sufficient to establish that Employee thereafter sustained a compensable work-related injury thereby meeting the statutory threshold of subsection b.-that he sustained a subsequent workrelated injury.

Under the Act, the test for permanent total disability claims is whether the Employee is able to compete in the open labor market. Underwood v. High Road Industries, LLC, 369 S.W. 3d 59, 66 (Mo. App. 2012); Knisley v. Charleswood Corp., 211 S.W. 3d 629, 635 (Mo. App. 2007). As such, "total disability" is defined as "the inability to return to any reasonable or normal employment." Underwood, 369 S.W. 3d at 66 (citing Lewis v. Kansas Univ. Med. Ctr., 356 S.W. 3d 796, 800 (Mo. App. 2011); $\S 287.020(7)$ RSMo. Missouri courts have repeatedly held that the test for determining permanent total disability is whether the individual is able to compete in the open labor market and whether the Employer in the usual course of business would reasonably be expected to employ the Employee in his/her present physical condition. See Garcia v. St. Louis County, 916 S.W. 2d 263 (Mo. App. 1995); Lawrence v. R-VIII School District, 834 S.W. 2d 789 (Mo. App. 1992); Carron v. St. Genevieve School District, 800 S.W. 2d 6 (Mo. App. 1991); Fischer v. Arch Diocese of St. Louis, 793 S.W. 2d 195 (Mo App. 1990).

In other words, a determination of permanent total disability should focus on the ability or inability of the Employee to perform the usual duties of various employments in the manner that such duties are customarily performed by the average person engaged in such employment. Gordon v. Tri-State Motor Transit, 908 S.W. 2d 849 (Mo. App. 1995). The courts of this State have held that various factors may be considered including an Employee's physical and mental condition, age, education, job experience and skills in making the determination as to whether an employee is permanently and totally disabled. See e.g., Tiller v. 166 Auto Auction, 941 S.W. 2d 863 (Mo. App. 1997); Olds v. Treasurer, 864 S.W. 2d 406 (Mo. App. 1993); Brown v. Treasurer, 795 S.W. 2d 439 (Mo. App. 1990); Patchin v. National Supermarkets, Inc., 738 S.W. 2d 166 (Mo. App. 1987); Laturno v. Carnahan, 640 S.W. 2d 470 (Mo. App. 1982); Vogel v. Hall Implement Co., 551 S.W. 2d 922 (Mo. App. 1977).

The critical question is whether any employer could reasonably be expected to hire employee and whether employee could reasonably be expected to successfully perform the work. Underwood, 369 S.W. 3d at 66 (internal quotations omitted); Highley v. Von Weise Gear, 247 S.W. 3d 52, 55 (Mo. App. 2008); Michael, 334 S.W. 3d at 663; Mathia v. Contract Freighters, Inc., 929 S.W. 2d 271, 275 (Mo. App. 1996). The employee need not be completely inactive or inert to meet this statutory definition. He/she must, however, be unable to compete in the open labor market. See Reese v. Gary \& Roger Link, Inc., 5 S.W. 3d 522 (Mo. App. 1999); Carlson v. Plant Farm, 952 S.W. 2d 369, 373 (Mo. App. 1997); Fletcher v. Second Injury Fund, 922 S.W. 2d 402 (Mo. App. 1996); Search v. McDonnell Douglas Aircraft, 894 S.W. 2d 173 (Mo. App. 1995); Reiner v. Treasurer, 837 S.W. 2d 363 (Mo. App. 1992); Brown v. Treasurer, 795 S.W. 2d 478 (Mo. App. 1990).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

Mr. Cordray testified that he evaluated Employee on April 3, 2019. Mr. Cordray authored a report dated May 3, 2019. Mr. Cordray reviewed the medical records relating to Employee's multiple preexisting injuries and conditions as well as the medical records from his March 16, 2018 primary injury. He reviewed the permanent restrictions placed on Employee by Dr. Anne Rosenthal and other physicians. It is Mr. Cordray's opinion that the Employee is unemployable in the open labor market based on Employee's multiple disabilities, including the primary and preexisting injuries/conditions and emotional difficulties from the psychological conditions, as well as the permanent work restrictions associated therewith. Dr. Rosenthal issued an addendum report dated May 15, 2019, finding that Employee was permanently and totally disabled as a result of his preexisting industrial disabilities and the primary March 16, 2018 injury in combination.

Mr. Cordray testified by deposition that he is a certified vocational rehabilitation counselor and has worked in this field for 46 years. Mr. Cordray's testimony is credible. Mr. Cordray stated that Employee lacks the physical capacity to perform a limited number of sedentary unskilled jobs given that he has no computer skills. Mr. Cordray noted that Employee has never performed sedentary work and has no computer clerical skills. Mr. Cordray noted that Employee made a good faith effort to return to work. However, having a camera installed in his work vehicle triggered pre-existing psychological symptoms associated with Employee's anxiety and PTSD. Employee testified that his employer did not offer employment or accommodations. Employee's last day worked was December 3, 2018.

Mr. Cordray concluded that it is not realistic to expect that any employer in the state of Missouri, in the usual course of business seeking person to perform duties of employment in the usual and customary way would reasonably be expected to employ Employee in his physical and emotional condition. The evidence in this case supports Mr. Cordray's conclusion that Employee is permanently and totally disabled. The Second Injury Fund did not offer any evidence to contradict the testimony of Mr. Cordray.

Employee has permanent disability predating the compensable work-related event which is "of such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the employee becomes unemployable." §287.220.1 RSMo. (1994), *Messex v. Sachs Electric Co.*, 989 S.W. 2d 206 (Mo. App. 1997); *Garibay v. Treasurer*, 964 S.W. 2d 474 (Mo. App. 1998); *Rose v. Treasurer*, 899 S.W. 2d 563 (Mo. App. 1995); *Leutzinger v. Treasurer*, 837 S.W. 2d 615 (Mo. App. 1995); The opinions of the synergy of disability expressed by Dr. Rosenthal and vocational consultant Terry Cordray have been set forth in this award as demonstrating serious disabling conditions which had the potentials to be a hindrance and an obstacle to maintaining employment.

The combined effect of the disability resulting from the March 16, 2018, work-related injury and the disability that is attributable to all Employee's conditions existing at the time the last injury was sustained results in permanent total disability to the Employee. *Boring v. Treasurer*, 947 S.W. 2d 483 (Mo. App. 1997); *Reiner v. Treasurer*, 837 S.W. 2d 363 (Mo. App. 1992); *Frazier v. Treasurer*, 869 S.W. 2d 152 (Mo. App. 1994). *Miller v. State Treasurer*, 978 S.W. 2d 808 (Mo. App. 1998). Dr. Rosenthal found that Employee did sustain an enhanced or synergistic effect, due to the combination of his primary injury and his multiple preexisting disabilities and that resulted in permanent total disability, which I believe is a reasonable representation of that combination.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Cantrell

Injury No: 18-019636

Dr. Rosenthal is of the opinion that Employee's preexisting disabilities and conditions and the additional disability caused by the March 16, 2018 primary injury, rendered Employee permanently and totally disabled. The medical records presented support the Employee's testimony that his multiple preexisting injuries and conditions represented significant preexisting industrial disabilities prior to the March 16, 2018 primary injury. Terry Cordray testified that Employee lacks the physical capacity to perform a limited number of sedentary unskilled jobs given that he has no computer skills. Mr. Cordray noted that Employee has never performed sedentary work and has no computer clerical skills. Mr. Cordray noted that Employee made a good faith effort to return to work. However, having a camera installed in his work vehicle triggered preexisting psychological symptoms. Mr. Cordray concluded that it is not realistic to expect that any employer in the state of Missouri, in the usual course of business seeking person to perform duties of employment in the usual and customary way would reasonably be expected to employ Employee in his physical and emotional condition. The evidence in this case supports Mr. Cordray's conclusion that Employee is permanently and totally disabled.

**CONCLUSION**

I find that the Employee's primary injury and preexisting disabilities have combined to render him permanently and totally disabled. Employee entered into a settlement with his employer on December 13, 2018, per the Stipulation for Compromise marked as Employee's Exhibit 13. The settlement provided that the employer was liable for 20% permanent partial disability to the right shoulder which equals 46.40 weeks of compensation for permanent partial disability. The evidence supported the settlement. The permanent partial disability rate was 483.48 per week and results in 22,433.47 in a permanent partial disability benefit. The Second Injury Fund is entitled to a credit for the 46.40 weeks or $22,433.47 of permanent partial disability compensation paid by the employer. Employee was placed at maximum medical improvement by Dr. McCabe on November 19, 2018. As such, the Second Injury Fund is entitled to an offset of $483.48 per week for 46.40 weeks beginning November 19, 2018, through October 9, 2019.

The Second Injury Fund is liable to Employee for 413.77 (897.25 - $483.48) per week beginning November 19, 2018 through October 9, 2019 for a total of 19,198.93 (413.77 x 46.40). Effective October 10, 2019, the Second Injury Fund is liable to the Employee for permanent and total disability benefits at the maximum rate of $897.25 per week beginning on October 10, 2019, when the employer's liability ended. The Second Injury Fund shall remain liable to the Employee for permanent total disability benefits at the maximum rate of $897.25 per week for so long as Employee remains so disabled.

An award of 25 percent of all payments made pursuant to this award is allowed Joshua P. Perkins, attorney for Robert Cantrell, for necessary legal services provided. Joshua P. Perkins is hereby assigned a lien of 25 percent of this award for necessary legal services provided Employee.

I certify that an 12-10-20 delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

Madoz to __________________________ L Rebman

Lawrence Rebman

Administrative Law Judge

of Workers' Compensation