William Hogan v. Jadwin Canoe Rental

(Affirming Award and Decision of Administrative Law Judge)

**CORRECTED**

Injury No. 00-174497

Employee:

William Hogan, dec.

Spouse:

Sharon Hogan

Employer:

Jadwin Canoe Rental (settled)

Insurer:

MO Employers Mutual Insurance Company (settled)

Additional Party:

Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial

Relations Commission (Commission) for review as provided by § 287.480 RSMo.

Having reviewed the evidence and considered the whole record, the Commission finds

that the award of the administrative law judge is supported by competent and

substantial evidence and was made in accordance with the Missouri Workers'

Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award

and decision of the administrative law judge dated August 12, 2021, and awards no

compensation in the above-captioned case.

The award and decision of Administrative Law Judge Bruce Farmer, issued August 12,

2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 30th day of March, 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Reid K. Forrester, Chairman

Shalonn K. Curls, Member

VACANT

Member

Attest:

Secretary

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 526-8983

www.labor.mo.gov/DWC

AUGUST 12, 2021

00-174497

Scan Copy

*Employee . . . . WILLIAM O HOGAN (DECEASED) 13317985 8 800 MCGRATH LN APT A SALEM, MO 65560-3001* Employee Attorney: MELVIN G FRANKE PO BOX 188 GRAY SUMMIT, MO 63039* *Employee Attorney: J D ROHRER 211 MAIN STREET PO BOX 1070 STEELVILLE, MO 65565* Asst Atty General: ATTY GENERAL ERIC SCHMITT 13317984 1 PO BOX 899 SUPREME COURT BLDG JEFFERSON CITY, MO 65102

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

WCC-142 (05-21) 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.

Employee: William Hogan (deceased)

Sharon Hogan (surviving spouse)

Employer: Jadwin Canoe (settled)

Additional Party: Second Injury Fund

Insurer: Missouri Employers Mutual (settled)

Hearing Date: May 10, 2021

Briefs submitted: June 24, 2021

Injury No.: 00-174497

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

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 5, 2000.
5. State location where accident occurred: Shannon 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 fell backwards over a trailer hitch.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Low back.
14. Nature and extent of any permanent disability: PPD 28.5\% low back per Stipulation with Employer/Insurer.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer: None.

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: $\ 394.73.
3. Weekly compensation rate: $\ 263.15.
4. Method wages computation: Stipulation.

COMPENSATION PAYABLE

1. Second Injury Fund liability: None.

Issued by DIVISION OF WORKERS' COMPENSATION

On May 10, 2021, the parties appeared for a final hearing in Rolla, Missouri. Sharon Hogan, William Hogan's widow, ("Claimant") appeared personally and by counsel, Melvin Franke. The Treasurer of Missouri, as the Custodian of the Second Injury Fund, appeared by counsel, Deidre Wood, Assistant Attorney General. The parties requested an opportunity to file post-hearing briefs. The record was completed and submitted on June 24, 2021.

The parties stipulated to the following facts:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Phelps County;
3. That the claim for compensation was timely filed and proper notice was given;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That on or about August 5, 2000, Employee sustained an accident, which arose out of the course and scope of employment;
6. That at the time of the accident, Employee's average weekly wage was 394.73 and his PTD and PPD rate was 263.15.

1. The liability of the Second Injury Fund for permanent total disability or permanent partial disability.

Claimant testified at the hearing in support of the claim. I take administrative notice of the division's files related to William Hogan. Claimant offered the following exhibits, which were admitted without objection:

A. Stipulation for Compromise Settlement executed by the widow Sharon Hogan dated 1/28/2011

B. Certified Copy of Judgment Determining Heirship in Circuit Court of Dent County, Probate Division in case 17DE-PR00073 entered on 4/25/18 - 2 pages

C. Certificate of Death of William Oscar Hogan, DOB 4/28/55;

D. Birth Certificate of Joshua Scott Hogan - 2 pages

E. Marriage License of William Oscar Hogan and Sharon Kay Dilport; dated 7/2/03 - 2 pages

F. Deposition of William Oscar Hogan 11/26/01

G. Deposition of William Oscar Hogan 9/26/08

H. Finding of Social Security Administration dated 1/29/13 found disabled as of 6/9/01 - 8 pages

I. Order of Substitution of Party entered by ALJ Vicky Ruth on 1/8/11 - 1 Page

J. Salem Memorial District Hospital Records 5/9/05 - 5/11/08 - 204 pages

K. St. Louis University Hospital records 12/22/05 - 1/13/06 - 342 pages

L. St. Louis University Health Sciences Center - Doctors Office Building 11/29/05 - 11/7/05

M. University of Missouri Orthopedic Clinic Note 2/10/03 - 9/24/01 (Dr. Alander) - 17 Pages

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N. St. Louis University Health Sciences Center - Orthopedic Rehabilitation Center 1/17/05 - 11/29/05 - 17 Pages

O. St. John's Clinic - Salem 5/19/06 - 4/25/03 (Dr. Bob Carnett) - 95 Pages

P. McCoy Vision Clinic 3/26/04 - 6 Pages

Q. St. Louis University Health Services Center - Des Peres 7/14/05 - 1/9/06 - 19 Pages

R. Midwest Endoscopy Consultants 12/4/04 - 10/17/06 (Dr. Guiseppe Aliporti - Barnes Jewish West County) - 84 Pages

S. Dr Kaczmarek - Central M0. Urology Clinic 2/15/05 - 9/11/06 - 9 pages

T. Gray Family Chiropractic 1/6/88 - 7/15/92 - 5 Pages

U. Phelps County Regional Medical Center (Dr. Dana Voight) 11/23/04 - 11/29/04 - 2 Pages

V. Dr Thomas Satterly 7/31/01 - 3/5/04 - 7 Pages

W. Powell Chiropractic Center 11/10/99 - 11/15/99 - 1 Page

X. Contract between Sharon Hogan and Melvin G. Franke - 2 Pages

Y. Contract between Joshua Hogan and Melvin G Franke - 2 Pages

Z. Deposition of Dr. Jeffery Magrowski, PHD 10/18/19 - 26 Pages

AA. Deposition of Dr. Alan Umbright 12/18/19 - 15 Pages

BB. Attorney's Itemization of Costs and Expenses - 1 Page

CC. Exhibit List - 1 Page

DD. Records from Dr. Hess at St. Joseph Hospital 4/2606, 7/14/05, 4/14/05, 1/13/05 - 10 Pages

EE. Records from Powell Chiropractic Center 11/399 - 11/10/99 - 10 Pages

FF. Original Claim for Compensation filed August 2001 - 2 Pages

GG. Answer to claim filed by Attorney General's Office 8/21/2001 - 2 Pages

HH. Notice of Deposition by Vickey Anthony on behalf of Employer/Insurer 9/13/01

II. Amended Claim for Compensation filed by Melvin G Franke 9/7/10

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

i. Claimant's deposition 11/26/01.

DISCUSSION

William Hogan ("Employee") was 44 years old on the day of the accident. He died on November 15, 2010, from causes unrelated to the work accident. Employee died from a presumed myocardial infarction survived by his wife, Sharon Hogan, and his son, Joshua Hogan. Ex. C.

During a work span of 21 years for Jadwin Canoe, Employee loaded canoes, shuttled patrons, and performed grounds keeping work. On August 5, 2000, while loading canoes onto a trailer, Employee fell backwards over a trailer hitch. For the next two months, he finished the fall season as a canoe hauler. During the following season, Employee worked from March 2001 until June 9, 2001. He relied upon his coworkers to help him load canoes.

After a denial of medical treatment by the employer, he sought treatment from a chiropractor, Dr. Powell. After three unsuccessful chiropractic sessions, Employee began receiving treatment from his primary care physician, Dr. Carnett, on January 19, 2001. An x-ray revealed mild degenerative changes and narrowing at L4-5. Dr. Carnett treated Employee with Naprosyn and Flexeril. After no significant improvement, Dr. Carnett referred Employee to orthopedic physician, Dr. Satterly.

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Initially, Dr. Satterly felt that Employee exacerbated his underlying lumbar degenerative arthritis and treated Employee with Indocin and a back belt. An MRI on September 24, 2001, revealed degenerative changes at L4-5 with protrusion along the left lateral L4-5 area. He recommended Employee undergo an L4-5 laminectomy.

After four additional years of conservative treatment, on December 15, 2005, Dr. Alander performed a two-level lumbar fusion at L3-4 and L4-5. Ex. K, p. 39. He diagnosed Employee with "severe disk degeneration L3-4 and L4-5 level with left leg radicular pain." Id. On January 3, 2006, Dr. Alander debrided the iliac crest graft site after an infection. Ex. N, p. 5. He placed Employee at maximum medical improvement (MMI) on July 14, 2006. Dr. Alander indicated that "[w]ork status at this point, it is extremely unlikely given his history, education level, and overall situation for him to be able to return to work as a truck driver. At best, he would be able to do some very sedentary work with ability to sit and stand at his option." Ex. Q, p. 2.

After his release from Dr. Alander, Employee continued to complain of a constant severe burning sensation and pain down the back of his left leg. During an evaluation with Dr. Umbright, Employee indicated that while sitting, he experienced tremors in both lower legs. He experienced intermittent pain that worsened with prolonged sitting or if he walked more than 500 feet. Ex. AA. These statements are consistent with Employee's testimony during his deposition. He stated that he could walk only one block at a time; sit for an hour; had difficulties while sleeping; and experienced pain from his back down into both legs. Ex. G, p. 21, 23-24.

William Hogan

Employee's deposition was taken twice before he died. The transcripts were submitted into evidence. Ex. F and G. Employee testified that his work at Jadwin Canoe was seasonal, typically from March to October. Ex. F p. 10. During the off season he would draw unemployment. Employee testified that his back problems started with the August 5, 2000 work accident. Id. p. 16-17. He denied a prior history of back problems. Id. Employee testified that he did not say anything to the owner of the business until July 2001, but that "it was known around the office" he had injured his back. Id. p. 20.

Employee testified that he last worked on June 9, 2001, and never attempted to return. Ex. F p. 15-16. After the accident, Employee testified that he worked until October and then returned in the spring from March to June 2001. Employee testified that his co-workers helped him "a tremendous amount" and that he was not sure if he could have done the work without their help. Id. p. 44, 54.

Mrs. Hogan

Mrs. Hogan testified at the hearing. Her testimony, however, was inconsistent and contradictory. This is not surprising considering that the hearing took place 11 years after her husband's death and she was asked to recall events going back to 2000.

The Hogans were married on July 2, 2003. Mrs. Hogan testified that they dated 3 years before that and their first date occurred after the August 5, 2000 work accident. Nevertheless, Mrs. Hogan testified about various physical ailments that she said Employee suffered from prior to

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August 2000. She testified that Employee had shortness of breath prior to August 2000. She also testified that Employee did not have breathing problems prior to August 2000.

Mrs. Hogan testified that Employee did not have back problems or hand problems prior to August 2000. She later testified that he did. She testified that he had to lie down prior to August 2000 because of his back even though she admitted that she did not know him prior to the work accident. She also testified that Employee had stomach problems prior to August 2000.

Mrs. Hogan testified the Employee liked to hunt but that he stopped in 2005, two years after they were married. She testified that Employee had trouble reading but that he would read two to three books a week. Mrs. Hogan testified that they were married seven years and after the fourth year, Employee's health started deteriorating especially his stomach and back.

Preexisting Medical Conditions

Right Little Finger

Sometime in 1985, Employee allegedly suffered an injury to his right hand while working at Givens Sawmill. Employee did not file a claim for compensation. Ex. i, p. 41. At the final hearing, no evidence was presented showing Employee had any permanent work restrictions leading up to the primary work injury. In addition, Employee did not provide any medical records that predated the primary work injury. Dr. Satterly noted Employee complained about his right hand on July 9, 2002, two years after the primary work injury. Ex. V. Dr. Satterly indicated that Employee did not have good grip strength and experienced "a bit of pain" in the PIP joint of the ring finger and long finger. Id.

Employee testified during his deposition that despite this prior injury, he did not need any assistance with his job duties. Ex. i, p. 44. He further explained that, although he cautiously executed some tasks, there were no activities he could not do. Ex. G, p. 27. "For the most part [he] could do the biggest part of whatever [he] had to do." Id. He returned to the saw mill after the injury and performed the same job without having to change the way he performed his job duties. Id. at 40. He never missed work because of his prior hand injury. Id. at 41.

COPD

According to the amended claim for compensation, Employee claims a preexisting condition of "lungs, COPD." Employee did not submit any medical records which provide a date of diagnosis or which predate the primary work injury. At the final hearing, Employee did not produce any evidence which showed he had any permanent work restrictions leading up to the primary work injury.

Employee initially testified on November 26, 2001, that he did not "have breathing problems." Ex. i, p.39-40. He further explained on June 26, 2008, that he did not receive treatment for breathing issues prior to the primary work injury and had "not been diagnosed with a major problem" prior to the primary work injury. Ex. G, p. 21, 42-43. He did not experience a shortness of breath until after the primary work injury and heart surgery. Ex. G, p.28.

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At the final hearing, Mrs. Hogan testified that she did not know when Employee received the COPD diagnosis. Mrs. Hogan testified that Employee did not have breathing problems before August 2000.

Glaucoma (Right Eye)

Two amended claims for compensation were filed. Neither claim identified glaucoma as a preexisting condition. It is unknown when Employee received a diagnosis of glaucoma. During the final hearing, Mrs. Hogan testified that Employee had glaucoma in his right eye although she did not provide a diagnosis date.

When reviewing medical records, a treating optometrist noted during an eye exam on June 11, 1999, that Employee complained of blurry vision. Ex. P, p.4. The remainder of the handwritten form is illegible and a specific diagnosis of glaucoma is not clearly listed. Id. Within the records there is another examination form in which it clearly states that "Pt. has Glaucoma- Not on tx currently," although the date of the exam is not listed. Id. at p. 3.

The Social Security Administration Decision notes that the "claimant's treating optometrist stated, on October 26, 2001, that although the claimant's eye condition was serious, it should not prevent him from any physical impairment concerning carrying, lifting, handling or traveling. It was stated he would do quite well if he used his medication appropriately." Ex. H, p. 5.

Dr. Magrowski indicated in his report and deposition that Employee began receiving treatment for his "eyes" after leaving his employment. Ex. Z, p. 24. During a stress test on December 5, 2005, the practitioner noted Employee had prescribed "glaucoma eye drops." Ex. J, p.3.

On November 26, 2001, Employee confirmed that he had glaucoma in the right eye. Ex. i, p. 40. He did not provide any additional information on treatment or date of diagnosis. Additionally, Employee was not on any permanent work restrictions leading up to the primary work injury.

GERD/Stomach

Similarly, the amended claims for compensation do not identify preexisting stomach issues. During his deposition on November 26, 2001, Employee testified that he had "ulcers basically" but "it's better." Ex. i, p. 39. Seven years later, during his deposition on June 26, 2008, Employee testified that his stomach problems returned in 2003 after the primary work injury and that his previous ulcers never caused him any continuing problems. Ex. G, p. 56.

A letter from Dr. Burton on November 8, 2005, outlines the "two year history" of Employee's abdominal pain. She notes that Employee had a negative ultrasound of the abdomen in November 2004; a negative red blood cell scan in October 2004; CT of the abdomen and pelvis in August 2005; exploratory laparoscopy in November 2004; a recent colonoscopy in October 2004; and an endoscopy completed in October 2004. Ex. L, p. 7. No evidence was presented showing Employee had any permanent work restrictions leading up to the primary work injury.

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Experts

Dr. Umbright

Employee retained Dr. Umbright to conduct an independent medical evaluation (IME). Ex. AA. Dr. Umbright examined Employee on May 14, 2003, and issued a report dated May 17, 2003. Dr. Umbright noted that prior to August 2000, Employee "had no history of low back problems or missing work because of back pain." Id. Dr. Umbright did not recommend surgery.

Due to the primary work injury, Dr. Umbright rated Employee with a 40% PPD BAW. Ex. AA. Additionally, Dr. Umbright provided a combined rating of 20% PPD for both the Employee's alleged preexisting right fifth finger injury and glaucoma condition. Dr. Umbright noted that Employee's glaucoma was controlled by medication.

Dr. Umbright examined Employee again on April 25, 2007, and issued a supplement report dated May 27, 2007. Dr. Umbright noted conditions since his 2003 report including cardiac bypass surgery in 2004 and chronic pancreatitis in 2006. Dr. Umbright increased his rating for the primary work injury to 65% PPD BAW. Ex. AA. He reiterated his 20% rating for glaucoma and the right little finger.

Dr. Umbright added disability ratings for injuries and diseases that occurred after the primary work injury, stating: "Finally, the discovery of his COPD, smoking history, pancreatitis and prostate hypertrophy would account for an additional 35% permanent partial impairment of the person as a whole." Ex. AA. After consideration of the combined preexisting, primary, and post injuries and diseases, Dr. Umbright provided a PTD opinion. He provided additional restrictions including: no lifting more than 10 pounds at knee height; no work above mid chest; no walking more than 100 feet at a time; no sitting longer than 20 minutes at a time; no work in temperatures greater than 80 degrees or colder than 45 degrees. The only restriction not related to Employee's primary work injury was the temperature restriction of 80 degrees and 45 degrees, secondary to Employee's coronary artery disease. Id. at p. 14.

In his December 18, 2018 deposition, Dr. Umbright testified: "[I]t is my medical opinion that all his lumbar disability is related to his August 2000 back injury and there was no pre-existing injuries." Ex. AA, p. 11. He further testified that Employee's cardiac, pancreatitis, prostate, and COPD conditions were not preexisting. Id. p. 13. Finally, Dr. Umbright agreed with Dr. Alander that Employee was at MMI on July 14, 2006. Id. p. 14.

Mr. Magrowski

Employee retained Jeffrey Magrowski, PhD, as a vocational consultant. Ex. Z. Mr. Magrowski interviewed Employee on May 6, 2008, and issued a report dated June 8, 2008. Mr. Magrowski's deposition was taken on October 18, 2019.

Mr. Magrowski concluded that although Employee had transferable job skills to "driving type" jobs, he had a total loss to the open competitive labor market based on the "physical limitations as reported by Dr. Satterly, Dr. Alander, and Dr. Umbright." Ex. Z. Mr. Magrowski's report noted that Employee reported that after the work injury "most of his work was done by co-workers." Id.

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Issued by DIVISION OF WORKERS' COMPENSATION

During his deposition, Dr. Magrowski conceded that Dr. Satterly based his work restrictions solely on the primary work injury. Ex. Z, p. 23. He confirmed that the physical limitations noted by Dr. Umbright were also related to the primary work injury. *Id.* Dr. Magrowski confirmed that after Employee quit working, he received treatment for his heart, stomach, abdomen, eyes, chronic COPD, chronic pancreatitis, prostate, anxiety, depression, and somatization. *Id.* He further testified that when considering these post-primary work injury conditions, "in combination" with the primary work injury would have an "overwhelming" impact for Employee's ability to compete in the open labor market. Ex. Z, p. 23.

Dr. Satterly

Dr. Satterly was a treating physician. He was not retained as an expert in this case, nor did he issue a report or testify.

Dr. Satterly examined Employee on July 31, 2001, almost a year after the work injury. Ex. V. Dr. Satterly felt that Employee exacerbated his underlying lumbar degenerative arthritis and treated Employee with Indocin and a back belt. Employee returned on August 30, 2001, reporting no improvement. Dr. Satterly ordered a MRI. This was done on September 24, 2001. It revealed degenerative changes at L4-5 with protrusion along the left lateral L4-5 area.

Employee continued with conservative care. On July 9, 2002, Dr. Satterly recommended that Employee proceed with a laminectomy discectomy with an interbody fusion for the primary work injury. Ex. V. He opined Employee was "at that time" totally disabled due to the problem of his lumbar spine. *Id.* He imposed temporary restrictions of no repeated lifting, bending, or stooping and no lifting more than 10 pounds. *Id.*

Dr. Satterly did not see Employee again until January 27, 2004. He ordered a repeat MRI. On March 5, 2004, Dr. Satterly again recommended back surgery.

FINDINGS OF FACT AND RULINGS OF LAW

The claimant in a workers' compensation case has the burden to prove all the essential elements of his claim, including the causal connection between the injury and work. *Jefferson City Country Club v. Pace*, 500 S.W.3d 305, 313 (Mo. App. 2016). The claimant does not have to establish the elements of his case with absolute certainty; it is sufficient if he shows them by reasonable probability. *Moreland v. Eagle Picher Techs., LLC*, 362 S.W.3d 491, 504 (Mo. App. 2012).

The claimant only meets his burden of production when he submits enough competent and substantial evidence that supports a finding of all facts that are required to support the claim for benefits. The claimant has both the burden of production of evidence and the burden of persuasion to prove his claim for benefits. *Annayeva v. SAB of TSD of City of St. Louis*, 597 S.W.3d 196, 199 (Mo. banc 2020).

In order to find permanent total disability against the Second Injury Fund, it is necessary that the employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with a prior permanent partial disability to result in total disability. Section 287.220.1; *Brown v. Treasurer of Missouri*, 795 S.W.2d 479, 482 (Mo. App. 2012).

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1990). The liability of the employer for the last injury alone is to be determined first. Section 287.220.1; *ABB Power T&D Co. v. Kempker*, 236 S.W.3d 43, 50 (Mo. App. 2007). "If the last injury in and of itself resulted in the employee's permanent total disability, then the Fund has no liability, and the employer is responsible for the entire amount of compensation." *Kempker*, 236 S.W.3d at 50. If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. *Roller v. Treasurer of the State of Missouri*, 935 S.W.2d 739, 742-43 (Mo. App. 1996).

I find that Employee was permanently and totally disabled from the last injury alone. I also find that Employee's inability to compete in the open labor market was due to a progression of his preexisting conditions and development of subsequent conditions. Therefore, the Second Injury Fund is not liable for permanent total benefits.

First, the credible evidence shows that Employee was able to work a physically demanding job for many years before the last injury. There is no credible evidence that Employee was unable to do his job to his employer's satisfaction. It was only after the primary injury that Employee became incapable of performing his job duties. Employee was only able to work a few months after the injury date but only because his co-workers helped him a "tremendous amount." Ex. i, p. 45-45, 54. Employee testified that he was not sure he could have performed his job duties without their assistance. *Id.*

Missouri law is "clear that the Commission is not prevented from finding that a claimant is permanently and totally disabled simply because he or she holds limited, sporadic and/or highly accommodated employment." *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 412 (Mo. App. 2011). "[T]he test is whether the claimant could compete in the open labor market." *Id.*; *See also Underwood v. High Road Industries, LLC*, 369 S.W.3d 59, 66-67 (Mo. App. 2012). I find that Employee was only able to work sporadically in his seasonal job after the primary injury because he was highly accommodated by his co-workers.

Second, except for the right little finger, Employee's pre-existing injuries and disabilities were minor and did not result in significant disability. Employee denied any history of back pain. Ex. i, p. 16. Employee's prior conditions, including the finger injury, did not require any work restrictions.

Third, on July 9, 2002, Dr. Satterly recommended that Employee proceed with a laminectomy discectomy with an interbody fusion for the primary work injury. Ex. V. He opined Employee was "at that time" totally disabled due to the problem of his lumbar spine. *Id.* He imposed temporary restrictions of no repeated lifting, bending, or stooping and no lifting more than 10 pounds. *Id.* Dr. Satterly did not see Employee again until January 27, 2004. He ordered a repeat MRI. On March 5, 2004, Dr. Satterly again recommended back surgery. The evidence shows that Employee's back condition did not improve after surgery.

Finally, Employee's testimony supports the conclusion that the last injury alone rendered him physically unable to work. His deposition was taken on November 26, 2001. Employee testified that he had a burning, aching pain in his low back and down his left leg. Ex. i, p. 29. It was "intense" pain and he was not "having any other problems with any other part of [his] body." *Id.* p. 30. In Employee's 2008 deposition, he reiterated that his back injury was painful and rendered him unable to work. Ex. G, p.16-17, 23-24, 29.

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Employee's inability to work, based on his testimony, was due to the last injury alone. The credible evidence shows that, before the last injury, Employee worked full time for several years in a physically demanding job. It was the last injury that render him essentially unable to work in any real physical capacity. This finding is also supported the medical records documenting his unsuccessful recovery from the primary injury to his back.

In addition, the Fund is not responsible for the progression of preexisting conditions or new conditions that develop after, and unrelated to, the work injury. Lewis v. Kansas University Med. Cntr., 356 S.W.3d 796 (Mo. App. 2011). In other words, the Fund is not responsible for providing an injured worker PTD benefits if that injured worker's inability to compete in the open labor market is the result of subsequent deterioration. Indeed, "[t]he preexisting disability necessary to trigger Second Injury Fund liability is permanent partial disability existing at the time the work-related injury was sustained." Lammert v. Vess Beverages, Inc., 968 S.W.2d 720, 725 (Mo. App. 1998). The Fund is "not responsible for progression of preexisting conditions or new conditions that develop after and unrelated to the workers' compensation claimant's work injury." Id.

After the primary work injury, Employee suffered from other health conditions including an appendix/gallbladder surgery in 2005, mini strokes in 2008, and open heart surgery in 2004. Ex. G, p. 8, 11, 14. Both experts, Dr. Umbright and Mr. Magrowski, include those subsequent conditions when assessing Employee's ability to compete in the open labor market. Taken as a whole, it is clear that both experts relied on subsequent health conditions in assessing permanent total disability. While Employee was permanently totally disabled from the last work injury, his subsequent health conditions also rendered him incapable of competing in the open labor market.

In light of my findings, it is not necessary to address any other issues raised by the parties.

The claim against the Second Injury Fund is denied.