| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No. 18-042133 |
| Employee: | Randy Skaggs |
| Employer: | Missouri Department of Transportation |
| Insurer: | Self-Insured |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the administrative law judge’s award allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion. |
| Discussion |
| The issues at hearing in this appeal involved: |
| Whether the employee’s June 7, 2018, work incident was the prevailing factor in causing his injury and disability |
| Nature and extent of permanent partial disability (PPD)/permanent total disability (PTD) |
| Second Injury Fund (SIF) liability for PTD |
| Future medical |
| Administrative Law Judge Lawrence Rebman found: |
| The employee sustained a compensable work injury on June 7, 2018. |
| Employee’s primary injury was the prevailing factor causing his injury and disability. |
| Employee is PTD due solely to medical restrictions attributable to his June 7, 2018, work injury. |
| Employee had no qualifying preexisting disabilities for purposes of SIF liability under § 287.220.3(2). |
| The employer is liable for employee’s PTD and future medical treatment related to the work injury. |
| The employer filed a timely application for review challenging all of the above findings. |
Improvee: Randy Skaggs
Preliminarily, we address employer's allegation that the ALJ incorrectly found that the parties stipulated that, "On or about June 7, 2018, Randy Skaggs sustained an accident or occupational disease arising out of and in the course of his employment."1
The transcript documents the employer's attorney's agreement that the employee sustained an "incident" or "event" at work on June 7, 2018, and that employee reported burning in his right arm to the employer as required by law. ${ }^{2}$ We agree that employer fell short of stipulating that employee sustained a compensable accident as defined by $\S 287.020 .2$ RSMo. To the extent that the ALJ's description of the parties' stipulations suggests otherwise, we clarify the award to state that the parties stipulated that employee sustained a work incident or event on June 7, 2018, which he reported to the employer as required by law.
For purposes of responding to the parties' arguments on appeal relating to potential SIF liability, we consider the ALJ's analysis of $\S 287.220 .3(2)$.
The award initially states, "Employee had preexisting injuries/conditions but those do not reach the required threshold to trigger Second Injury Fund liability," and later reiterated "none of Employee's preexisting disabilities/conditions rise to the level of fifty weeks of permanent partial disability compensation as required by $\S 287.220 .3(2) .{ }^{3}$
In addressing "ISSUE 3 Whether the Second Injury Fund is liable for permanent total disability compensation", the award states:
To recover against the Fund, Employee must 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 funder 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. ${ }^{4}$
The award then concludes:
Employee's preexisting left shoulder, low back, bilateral knees, and diabetes do not qualify pursuant to 287.220 .3 (2) as they are not the direct result of a compensable injury . . .Employee's additional injuries and disabilities remove Employee from Fund liability under the statute because there was no evidence that these injuries fell within items (i), (ii), (iii), or (iv) of subparagraph a. of Section 287.220.3(2)(a). ${ }^{5}$
We find these statements confusing and inconsistent.
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[^0]: ${ }^{1} Award, p. 3.
{ }^{2} Transcript, pp. 3-4.
{ }^{3} Award, pp. 17-18, 19.
{ }^{4} Award, p. 19.
{ }^{5} \mathrm{Id}$.
The ALJ made no factual findings relating to the nature and extent of PPD related to employee's non-work-related chronic low back pain and radiculopathy or his left shoulder disability. Dr. Anne Rosenthal evaluated the employee's non-work-related chronic low back pain and radiculopathy as 20\% PPD rated at the 400-week level of the body as whole ( 80 weeks) and his left shoulder disability as 30 % PPD at the 232-week level of the upper extremity ( 69.6 weeks). These ratings each exceed the fifty-week threshold requirement of $\S 287.220 .3(2)$.
Assuming arguendo that employee's medically documented preexisting non-workrelated disability due to back pain exceeded fifty weeks of PPD, we agree that this condition would not qualify as a preexisting disability under $\S 287.220 .3(2)$ because there is no evidence that this condition met the additional requirement set out in § 287.220.3(2)(a), which states that, in addition to being medically documented and a minimum of fifty weeks of PPD, a preexisting disability must also be:
(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
(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;
Employee's preexisting non-work-related left shoulder disability, on the other hand, assuming adoption of Dr. Rosenthal's 69.6 week PPD evaluation, would qualify as a preexisting disability under $\S 287.220 .3(2)$ because employee's left shoulder constitutes an opposite extremity to his right shoulder under $\S 287.220 .3(2)(a)(i v) .{ }^{6}$
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[^0]: ${ }^{6}$ We have previously held that where an employee's PTD results from both qualifying and non-qualifying preexisting disabilities under $\S 287.220 .3(2)$, the SIF has no liability See James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 17-085909 (LIRC, May 17, 2021). We construe Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178 (Mo. banc, 2021) as requiring an employee to demonstrate PTD solely by a combination of disability related to the primary injury and preexisting disabilities that qualify under that statute. Id., at 182. The Missouri Court of Appeals Eastern District's contrary opinion in Christopher Klecka v. Treasurer for the State of Missouri-Custodian of the Second Injury Fund (ED108721, June 22, 2021) does not control this issue because the court's decision in that case, currently under review by the Supreme Court of Missouri, is not final and does not constitute binding precedent.