Norris Stanley v. Noranda Aluminum, Inc.

^{1} Petitioner’s Brief, p. 27. ^{2} Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. 2021).

We find the Supreme Court's April 26, 2022 decision in Klecka v. Treasurer of Mo. As Custodian of the Second Injury Fund, 644 S.W.3d 562 (Mo. 2022) dispositive. In response to similar if not identical arguments as the employee raises herein, the Court expressly found:

Non-qualifying preexisting disabilities cannot be considered in determining whether a claimant satisfies the second condition of section 287.220(3). Parker, 622 S.W.2d at 182 (emphasis added). There was no evidence [the employee's] primary injury, combined with his qualifying preexisting disability, resulted in PTD because he failed to elicit testimony from any of his experts indicating he would still be rendered permanently and totally disabled, absent his non-qualifying injuries (emphasis added). Id., at 557.

We are bound by the Supreme Court's holdings in both Parker and Klecka to affirm the ALJ's denial of compensation in this matter.

We affirm and adopt the award of the administrative law judge, addressing both of the above-cited claims, as supplemented herein.

The award and decision of Administrative Law Judge Maureen Byrne, dated January 25, 2022, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of November 2022.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


DISSENTING OPINION FILED

Shalonn K. Curls, Member


Kathryn Swar, Member

Attest:

$\frac{\text { Fula }}{1} \frac{\text { Hoge }}{\text { Secretary }}$

The Commission is bound by the Court's decision in Treasurer of State v. Parker, 622 S.W.3d 178 (Mo. 2021), despite its dire consequences for the state's most severely injured workers.

As earlier stated in my dissent to the majority's June 6, 2022 Order denying the employee's April 14, 2022 Motion to Stay Appeal/Motion to Present Additional Evidence, the interests of justice demand that the Commission remand this matter to the administrative law judge to allow the employee to present additional evidence.

On February 15, 2022, well after the parties submitted their case to the administrative law judge following the November 8, 2021 hearing, the Court of Appeals of the Western District issued James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, WD85662 (February 15, 2022). ${ }^{1}$ Swafford involved the critical issue of whether the Supreme Court's decision in Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019) constituted a substantive law change establishing good cause to allow an employee to present additional evidence to meet the burden of proof in a post-2014 Second Injury Fund Claim. The appeals court found it was unfair to punish an employee for failing to introduce evidence when he did not have the benefit of the court's guidance as to the evidence necessary to make a submissible case and unfair to deny the employee an opportunity to present evidence relevant to a newly announced legal standard.

The interests of justice compel that the employee's attorney is allowed an opportunity to present additional evidence on the issue of medical causation in light of the impact of Treasurer of State v. Parker, 622 S.W. 3d 178,182 (Mo. 2021) as interpreted in Klecka v. Treasurer of Mo. As Custodian of the Second Injury Fund, 644 S.W.3d 562 (Mo. 2022). To deny the employee the ability to clarify whether he is permanently and totally disabled from his conditions excluding the sole "nonqualifying" condition of his right knee is contrary to Parker's mandate that the existence of non-qualifying disability should not be counted against the employee and Klecka's instruction that "life factors" are appropriately considered in a post-2014 permanent total disability claim.

Because the employee has been denied a full opportunity to present his case under the current state of the law, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1}$ The Supreme Court of Missouri accepted the Second Injury Fund's Application for Transfer of Swafford on May 17, 2022. James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, SC99563.

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

JANUARY 25, 2022

16-005037

Scan Copy

@Employee . . . . : NORRIS D STANLEY 130 ST THOMAS NEW MADRID, MO 63869 @Anst Atty General: ATTY GENERAL ERIC SCHMITT 2311 BLOOMFIELD ST STE 106 CAPE GIRARDEAU, MO 63703 @Employee Attorney: ROBERT W BUTLER 10639 BUSINESS 21 HILLSBORO, MO 63050-5094

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 (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.

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

JANUARY 25, 2022

16-005266

Scan Copy

@Employee . . . . : NORRIS D STANLEY 130 ST THOMAS NEW MADRID, MO 63869 @Anst Atty General: ATTY GENERAL ERIC SCHMITT 2311 BLOOMFIELD ST STE 106 CAPE GIRARDEAU, MO 63703 @Employee Attorney: ROBERT W BUTLER 10639 BUSINESS 21 HILLSBORO, MO 63050-5094

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 (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: Norris Stanley

Injury No. 15-024270, 16-005037, 16-005266, 16-022878

Dependents: N/A

Employer: Noranda Aluminum, Inc.

Additional Party: The Second Injury Fund

Insurer: New Hampshire Insurance Co. (settled)

Hearing Date: November 8, 2021

Checked by: $\mathrm{MB} / \mathrm{kg}$

1. Are any benefits awarded herein?

15-024270: No

16-005266: No

16-005037: No

16-022878: No

1. Was the injury or occupational disease compensable under Chapter 287?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Was there an accident or incident of occupational disease under the Law?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Date of accident or onset of occupational disease?

15-024270: April 8, 2015

16-005266: January 21, 2016

16-005037: January 27, 2016

16-022878: March 11, 2016

1. State location where accident occurred or occupational disease contracted:

15-024270: New Madrid County, Missouri

16-005266: New Madrid County, Missouri

16-005037: New Madrid County, Missouri

16-022878: New Madrid County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Did the employer receive proper notice?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Did accident or occupational disease arise out of and in the course of the employment?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Was claim for compensation filed within time required by law?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Was the employer insured by above insurer?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Describe work employee was doing and how accident happened or occupational disease contracted:

15-024270: Employee injured his right shoulder while swinging a sledgehammer against a piece of aluminum.

16-005266: Employee fell and injured his low back while at work.

16-005037: Employee sustained an occupational disease of carpal tunnel syndrome from repetitive use of bilateral wrists.

16-022878: Employee sustained an occupation disease of tinnitus through noise exposure at work.

1. Did accident or occupational disease cause death?

15-024270: No

16-005266: No

16-005037: No

16-022878: No

1. Parts of body injured by accident or occupational disease:

15-024270: Right shoulder

16-005266: Low back

16-005037: Bilateral wrists

16-022878: Body as a whole (tinnitus/hearing loss)

1. Nature and extent of any permanent disability:

15-024270: 22.5 % right shoulder

16-005266: 8.75 % of the body as a whole (low back)

16-005037: 15 % permanent partial disability of the left wrist and 2.5 % permanent partial disability right wrist

16-022878: 3.765 % body as whole (tinnitus/hearing loss)

Employee: Norris Stanley

Injury No. 15-024270; 16-005037; 16-005266; 16-022878

1. Compensation paid to-date for temporary total disability:

15-024270: 10,947.51

16-005266: 16,290.80

16-005037: 8,265.80

16-022878: 0.00

1. Value necessary medical aid paid to-date by employer-insurer:

15-024270: 57,092.76

16-005266: 14,554.92

16-005037: 7,364.68

16-022878: 1,020.00

1. Value necessary medical aid not furnished by employer-insurer:

15-024270: N/A

16-005266: N/A

16-005037: N/A

16-022878: N/A

1. Employee's average weekly wage:

15-024270: 1,291.56

16-005266: 1,257.84

16-005037: 1,257.84

16-022878: 1,330.38

1. Weekly compensation rate:

15-024270: TTD & PTD: $861.04/PPD $451.02

16-005266: TTD & PTD: $814.54/ PPD $464.58

16-005037: TTD & PTD: $838.56/PPD $464.58

16-022878: TTD & PTD: $886.92/PPD $464.58

1. Method wages computation:

15-024270: By agreement

16-005266: By agreement

16-005037: By agreement

16-022878: By agreement

1. Amount of compensation payable:

15-024270: Employee's claim against the employer-insurer settled by compromise settlement agreement prior to the hearing.

16-005266: Employee's claim against the employer-insurer settled by compromise settlement agreement prior to the hearing.

16-005037: Employee's claim against the employer-insurer settled by compromise settlement agreement prior to the hearing.

16-022878: Employee's claim against the employer-insurer settled by compromise settlement agreement prior to the hearing.

1. Second Injury Fund liability:

15-024270: None

16-005266: None

16-005037: None

16-022878: None

1. Future requirements awarded:

15-024270: None

16-005266: None

16-005037: None

16-022878: None

On November 8, 2021, the employee, Norris Stanley, appeared in person and with his attorney, Robert Butler, for a hearing for a final award hearing on four claims: 15-024270, 16005266, 16-005037 and 16-022878. The Second Injury Fund was represented by Assistant Attorney General, Crystal Williams. The primary cases had all been previously settled, therefore no one appeared on behalf of the employer-insurer. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

15-024270

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was fully insured by the insurer above.
2. On or about April 8, 2015, Employee was an employee of Employer and was working under the Workers' Compensation Act.
3. On or about April 8, 2015, Employee sustained an accident arising out of and in the course of employment.
4. Employer had notice of Employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. Employee's average weekly wage is $\ 1,291.56. Employee's compensation rate is: TTD and PTD $\ 861.04 and for PPD $\ 451.02
7. Employee's injury was medically causally related to the accident on April 8, 2015.
8. Employee was furnished medical aid by Employer in the amount of $\ 57,092.76
9. Employee was paid temporary disability by Employer in the amount of $\ 10,947.51.

1. Employee is making a claim against the Second Injury Fund for permanent total disability.

16-005266

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was fully insured by the insurer above.
2. On or about January 21, 2016, Employee was an employee of Employer and was working under the Workers' Compensation Act.
3. On or about January 21, 2016, Employee sustained an accident arising out of and in the course of employment.

1. Employer had notice of Employee's accident.
2. Employee's claim was filed within the time allowed by law.
3. Employee's average weekly wage was $\ 1,257.84. Employee's rate was: TTD \& PTD $\ 814.54 and for PPD $\ 464.58.
4. Employee's injury was medically causally related to the accident on January 21, 2016.
5. Employee was furnished medical aid by Employer in the amount of $\ 14,554.92.
6. Employee was paid temporary disability by Employer in the amount of $\ 16,290.80.

1. Employee is making a claim against the Second Injury Fund for permanent total disability.

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was fully insured by the insurer above.
2. On or about January 27, 2016, Employee was an employee of Employer and was working under the Workers' Compensation Act.
3. Employer had notice of Employee's occupational disease.
4. Employee's claim was filed within the time allowed by law.
5. Employee's average weekly wage and compensation rate was $\ 1,257.84. Employee's rate was: TTD \& PTD $\ 838.56 and for PPD 464.58.
6. Employee was furnished medical aid by Employer in the amount of $\ 7,364.68.
7. Employee was paid temporary disability by Employer in the amount of $\ 8,265.80.

1. Whether Employee sustained an occupational disease arising out of and in the course of his employment.
2. Whether Employee's injury was medically causally related to his occupational disease.
3. Employee is making a claim against the Second Injury Fund for permanent total disability.

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was fully insured by the insurer above.
2. On or about March 11, 2016, Employee was an employee of Employer and was working under the Workers' Compensation Act.
3. On or about March 11, 2016, Employee sustained an occupational disease arising out of and in the course of employment.
4. Employer had notice of Employee's occupational disease.
5. Employee's claim was filed within the time allowed by law.
6. Employee's average weekly wage was $\ 1,330.38. Employee's rate was: TTD \& PTD $\ 886.92 and for PPD $\ 464.58.
7. Employee's injury was medically causally related to the occupational disease of March 11, 2016.
8. Employee was furnished medical aid by Employer in the amount of $\ 1,020.00.
9. Employee was paid temporary disability by Employer in the amount of $\ 0.00.

1. Employee is making a claim against the Second Injury Fund for permanent total disability.

The following exhibits were offered and admitted into evidence for all four claims:

1. Dr. Paul Hinton Deposition Transcript and Exhibits
2. Timothy Kaver's Deposition Transcript and Exhibits
3. 16-022878 Stipulation for Compromise Settlement and Addendum, D/A: 3/11/2016
4. IME Dr. Sheldon Davis $11 / 29 / 2018$
5. IME Dr. Anthony Mikulec 7/7/2016
6. 16-005037 Stipulation for Compromise Settlement and Addendum, D/A: 1/27/2016
7. Regional Brain \& Spine Left Hand and Arm 3/2/2016 - 4/3/2017
8. 16-005266 Stipulation for Compromise Settlement, D/A: 1/21/2016
9. Regional Brain \& Spine, Records 3/2/2016-7/29/2016
10. Noranda Health Department Record 1/27/2016 - 2/19/2016
11. 15-024270 Stipulation for Compromise Settlement, D/A: 4/8/2015
12. Dr. Michael Milne 4/1/2015 - 11/17/2015
13. 05-142923 Stipulation for Compromise Settlement, D/A: 9/16/2005

1. Orthopedic Associates Dr. Patrick Knight 11/30/2006 - 1/9/2009
2. Advanced Orthopedic Specialist $8 / 3 / 2004-12 / 3 / 2008$
3. 05-142923 Final Award- SIF ONLY
4. 03-107368 Stipulation for Compromise Settlement, D/A 2/6/2003
5. 03-107368 Stipulation for Compromise Settlement SIF
6. Dr. Charles Chueng $6 / 4 / 2003-3 / 15 / 2005$
7. Misc Records Dr. Pfefferkorn, Dr. Jones 2/6/2003 - 7/12/2004
8. Dr. James Coyle Records 2/15/2006 - 8/23/2007
9. 02-063232 Stipulation for Compromise Settlement, D/A: 6/7/2002
10. Bone \& Joint Clinic Dr. Carl Huff \& Dr. Pat Younger, 7/19/2002 - 9/26/2002

The Second Injury Fund did not offer any exhibits into evidence.

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations of Employee at hearing, I find:

The employee, Norris Dwayne Stanley, is 60 years old and his date of birth is January 23, 1961. He lives in New Madrid, Missouri, with his wife, Katherine Stanley. He has a high school education and did take vocational training in welding. Employee was never in the military.

Employee worked for Noranda Aluminum, Inc. ("Employer") from 1979 until the plant shut down on March 11, 2016. Employee received on-the-job training for various types of heavy machinery and Employee was a welder. Employee's first job with Noranda was as a pot room utility laborer, where he would set carbon and jack frames. This job involved a lot of shoveling and cleaning up.

From 1984-1995 Employee worked as a material handler, which involved driving equipment. Employee next worked as a cell operator on the pot lines, which included shoveling and cleaning up, similar to the pot room position. Employee then moved to pot service as a pot reconditioner. He would build pots and lay bricks around the perimeter. Laying bricks required Employee to get down on his hands and knees.

From 2002 to 2016 Employee worked as a department service person doing light fabrication with aluminum, welding and sanding blocks. He would use a sledgehammer daily and could hit pieces five or six times. Employee used the sander for about four hours per day and it would vibrate. Employee worked with the same five people in his crew for many years, who all knew his situation with his back and would help each other.

After the plant closed down, Employee applied for and received social security disability benefits.

Employee injured his right knee when he slipped and fell on a catwalk at Noranda. Employee treated with Dr. Huff, who performed an arthroscopic surgery on August 7, 2002. The post-operative diagnosis was chondroplasty of patella with residual synovitis. Employee got better but was still having problems.

Employee testified that he then went to see Dr. Thorpe, who ordered another MRI and recommended another surgery. Employee first saw Dr. Thorpe on August 30, 2004. Dr. Thorpe diagnosed a persistent tear of the medial meniscus, probably ACL insufficiency, and possible medial joint osteochondral fracture medical femoral condyle. On April 5, 2005, Dr. Thorpe performed a right knee arthroscopy, ACL repair, chondroplasty patella, chondroplasty trochlea, chondroplasty medial femoral condyle, synovectomy. Employee followed up with Dr. Thorpe until May 24, 2005, when he was released to return to work with no restrictions.

Employee settled this claim for 17.5 % of the right knee or 28 weeks with Employer.

Employee stated the second surgery helped. However, he was not able to do any squatting and he would sometimes have an ache in it. The pain would be located on the inside of the knee and it would worsen throughout the day with activity. After this injury, Employee started exercising with an elliptical to help reduce stress on the knee.

Employee injured his low back when he slipped and fell on ice at work on February 6, 2003. Employee first treated conservatively with Dr. Pfefferkorn and Dr. Jones and was diagnosed with a lumbar strain. When his back did not improve, Employee was sent to Dr. Cheung. Employee was administered an injection but after no significant improvement, a surgery was recommended. Employee was then sent to Dr. Vaught for a second opinion, who agreed with Dr. Cheung's surgery recommendation.

On September 9, 2003, Dr. Cheung performed a right-sided L5-S1 microdiscectomy. Employee continue to complain of pain and difficulties after this surgery and additional treatment was attempted. However, after Employee failed to improve, a second surgery was recommended but Employee wanted more options. He last treated with Dr. Cheung in March 2005.

Employee was then referred to Dr. Coyle for treatment. Dr. Coyle saw Employee on February 15,2006 , to evaluate his lower back and right leg pain and ordered an MRI. After reviewing the MRI, Dr. Coyle did recommend a revision surgery, which was performed on December 28, 2006.

Employee followed up with Dr. Coyle until August 8, 2007, when he was released at maximum medical improvement. Dr. Coyle did not place any work restrictions on Employee but advised he observe normal safety precautions with bending, twisting and lifting. Dr. Coyle rated Employee with twenty percent permanent partial disability as a result of this injury.

Employee settled this claim for 30% of the low back or 120 weeks with his employer.

Employee testified that the surgery helped but he still had problems with his back. The nerve pain in his right leg returned after about two years. Employee stated that prior to the January 2016 injury to his low back, his pain would average 3/10 and twisting would increase his pain. He tried to limit his lifting to twenty pounds, standing in one spot to thirty or forty minutes and sitting to forty-five minutes to an hour. Stooping and repetitive bending was difficult and squatting bothered his low back and right knee. He would relieve his pain by sitting or taking a break at work. Employee stated he did take more breaks at work after the back injury.

2005 Left shoulder

Employee injured his left shoulder at work on September 16, 2005, while using a sledgehammer. Employee treated with Dr. Patrick Knight, who performed a rotator cuff repair on May 10, 2007, after conservative treatment failed to improve Employee's symptoms. After the surgery, Employee continued to have problems. He received an injection and a repeat MRI was ordered. That MRI revealed a new tear since his surgery and last MRI. On December 13, 2007, Employee underwent a left shoulder scope with mini open rotator cuff repair performed by Dr. Knight. Employee followed up with Dr. Knight until July 17, 2008, when he was released to full duty work. In a letter dated January 9, 2009, it appears Dr. Knight was asked to opine on causation of the second surgery. However, the information he had received was different from what was indicated by the insurance company, so there was some uncertainty as to whether the second surgery was related to the original injury.

Employee settled this claim for 30% of the left shoulder or 69.6 weeks.

Employee described loss of strength in this shoulder, loss of range of motion, and he would have muscle spasms in the biceps area. He also experienced cramping in the front of the shoulder. He had pain with any reaching motion and if he slept on it. In his job, Employee had to compensate for the left weakness by using the right arm more. He would be slower at performing his task, but his co-workers would help him get the job done.

2015 Right shoulder

Employee injured his right shoulder at work on April 8, 2015, when he was swinging a sledgehammer and missed the piece of aluminum he was hammering. Employee was sent to Dr. Milne for treatment. Dr. Milne performed a right shoulder arthroscopic rotator cuff repair with two anchors, right shoulder arthroscopic biceps tenodesis, right shoulder subacromial decompression, and right shoulder distal clavicle resection on June 26, 2015. Employee participated in physical therapy and followed up with Dr. Milne until released with no restrictions in November 2015.

Employee settled for 22.5% of the right shoulder or 52.2 weeks.

11

Employee testified that he had a better outcome with the right shoulder than the left, but he would still be careful with it. He thought he retained about seventy-five percent strength in it and the hardest activity would be reaching behind him.

Employee injured his low back on January 21, 2016, when he was jacking a pot and fell in a hole in the catwalk. Employee was sent to Dr. Kevin Vaught for an independent medical evaluation. On April 9, 2016, Dr. Vaught opined Employee's symptoms and need for further diagnostic work up and treatment were related to the work injury. Dr. Vaught diagnosed Employee with a lumbar spondylosis and lumbar muscle strain. Employee treated with physical therapy and a medial branch block at L4-5. On July 15 and July 29, 2016, Dr. Cleaver performed a lumbar radiofrequency rhizotomy. Employee did not think any of these procedures significantly improved his condition.

Employee settled this claim with his Employer for 8.75 % of the low back or 35 weeks.

He stated after this injury the pain became constant and more intense. He had pain in the right leg, which was more frequent and intense. This pain goes down the leg to the outside of his foot, along with a burning sensation. Employee stated his lifting was reduced to ten pounds, standing was more difficult after thirty minutes, and walking was limited to thirty to forty minutes. Employee stopped doing any lifting with stooping after this injury. For his last five or six weeks of work, Employee stated he was taking hydrocodone and ibuprofen at work and his co-workers helped him.

Employee reported an injury to his left and right wrist on January 27, 2016. He reported to Dr. Vaught left-hand symptoms of more than one-year duration. He described himself as a laborer who performed duties at the plant. Employee denied a specific inciting event that preceded the onset of the left hand and forearm aching, stabbing, and burning. Employee describes persistent cramping of the left hand on most days, and there is paresthesia described in all fingers of the left hand, primarily some thumb and second digit.

Employer initially sent Employee to Dr. Kevin Vaught for an independent medical evaluation on March 2, 2016. Employee described "cramping and drawing up" of the left hand multiple times a day. Further, there was nondescript paresthesia located in all left-hand fingers. He reported exacerbating factors as holding his hand in a static position, holding the phone, driving, lifting, and operating vibrating tools. He had modified his activities and utilized NSAIDs and hydrocodone without significant symptom reduction. Dr. Vaught opined that the condition was not work related but did diagnose probable left carpal tunnel syndrome and possible cubital tunnel syndrome. He recommended Employee undergo EMG/NCV studies of the left upper extremity to assess for median nerve or ulnar nerve entrapment. Additionally, he recommended nocturnal left-hand splinting and physical therapy.

Employee underwent an EMG/NCV study on April 3, 2017. Dr. Vaught reports that the findings are consistent with mild bilateral, right greater than left distal median nerve compromise at or near the wrist/carpal tunnel affecting the sensory and motor components. He believed this was indicative of bilateral carpal tunnel syndrome. Dr. Vaught found Employee's left-hand symptoms had persisted despite conservative care and offered surgical decompression of his left hand. Employee indicated that the right-hand symptoms were not severe enough and that he was not interested in pursuing any treatment surgical treatment of the right hand.

Employee underwent surgery on his left carpal tunnel syndrome but did not have surgery on his right hand.

Employee indicated that he used his hands a lot in the performance of his job duties. Those duties included slinging a 10-pound sledgehammer to shape metal before the welding. He would grip the welder, which was like a gun with a trigger that he squeezed. However, his main job was performing a lot of sanding on aluminum blocks. Sanding was one of the more strenuous tasks on his hands.

Additionally, Employee would remove eight steel bolts from each block. An impact wrench was required to remove and clean the bolts. The impact wrench vibrated and demanded that he hold a trigger.

Employee worked in an area with a large exhaust fan that removed welding fumes. The fan and machinery created a loud environment. He was required to wear hearing protection, which included earplugs and earmuffs.

On July 7, 2016, Employee was seen by Dr. Anthony Mikulec for hearing loss and tinnitus as it relates to his employment with Noranda from 1979 to March 2016. Based on Missouri Workers' Compensation standards, Dr. Mikulec opined Employee had a 0\% rating for bilateral hearing loss related to his occupational exposure but did have age-related hearing loss. He further opined that Employee had minimal bother from his tinnitus and therefore, did not assess any permanent disability to this condition as it related to his occupational exposure. Dr. Mikulec found Employee to be at maximum medical improvement as it related to his hearing loss and tinnitus.

Employee presented to Dr. Sheldon Davis on November 29, 2018, for his hearing loss and tinnitus. Employee worked for Noranda from 1979 until March 11, 2016. Hearing protection was not required until around 2000. A formal audiogram was performed and showed mid to high frequency bilateral sensory neural hearing loss, worse on the left side. Dr. Davis thought Employee's occupational noise exposure was the prevailing factor in Employee's hearing loss and tinnitus. Dr. Davis stated that although the Workers' Compensation formula resulted in 0\% hearing loss calculation, Employee had significant hearing loss in both ears and as a result of the hearing loss, Employee had significant tinnitus which was intrusive and negatively affected his quality of life. Therefore, Dr. Davis rated Employee with 10\% permanent partial disability body

**Injury No. 15-024270; 16-005037; 16-005266; 16-022878**

as a whole for tinnitus in the left ear and 8% permanent partial disability body as a whole for tinnitus in the right ear.

Employee does not have hearing aids and has had no treatment for his ear condition. Employee settled this claim for 3.765% body as a whole for tinnitus and hearing loss.

According to Dr. Hinton's report, Employee stated his hearing for his right ear is not too bad, but it is progressively getting worse on the left. Employee could wear a hearing aid on the left side if he wanted to but he has decided to wait until absolutely necessary. He is at the point of having difficulty distinguishing what is being said. He has a constant ringing in his head.

Employee testified that he has a continual ringing in his ears and he has to sleep with a fan on to drown out the noise. He notices the ringing more the quieter the environment is.

As it relates to his other conditions, Employee must alternate positions every thirty to forty minutes. If he cannot get relief, then he will go lie down once or twice a day for thirty minutes to an hour. He takes hydrocodone and ibuprofen for pain and gabapentin at night for nerve pain in the right leg. Employee takes Flexeril every other month to help with the spasms. Employee describes his biggest problem as his low back pain, which prevents him from doing most of the outside chores because of the bending or stooping. Employee still goes to the gym two to three times per week and uses the elliptical.

In an average day, Employee will spend time sitting on a heating pad, helping with chores some and usually goes to the gym later in the day to break it up. He will still golf once a week but has increased back pain the next day. Employee goes hunting on a limited basis and misses out on many family activities depending on how his back is doing. Employee testified that it was his back pain that prevents him from returning to work.

At the request of Employee, Dr. Hinton performed an IME of Employee on April 29, 2020, issued a report dated May 26, 2020, and was deposed on March 10, 2021.

Dr. Hinton diagnosed Employee with mid to high frequency bilateral sensorineural hearing loss, worse on the left, and tinnitus as a result of his occupational exposure occurring March 11, 2016. For his preexisting conditions, Dr. Hinton diagnosed the following:

- bilateral carpal tunnel syndrome resultant from occupational injury occurring January 27, 2016, and status post left carpal tunnel release performed April 2017

- right knee chondromalacia of the medial patella facet, June 2002, status post arthroscopy right knee with medial patella facet chondroplasty performed August 7, 2002; right knee ACL tear interstitial, chondral fracture patellofemoral joint with chondromalacia grade III, chondromalacia medial femoral condyle, and medial meniscus tear; status post right knee arthroscopic ACL repair, partial medial meniscectomy, synovectomy, and multiple chondroplasty performed on April 5, 2005

Employee: Norris Stanley

Injury No. 15-024270; 16-005037; 16-005266; 16-022878

- Right L5-S1 disc herniation, February 2003; status post microdiscectomy on right at L5-S1 performed on September 9, 2003; status post revision laminotomy, right L5-S1 with partial medial facetectomy and right L5-S1 foraminotomy, performed on December 28, 2006

- Type 1 SLAP partial cuff tear, impingement distal clavicle and degenerative joint disease, September 2005; status post left shoulder arthroscopy, debridement of SLAP lesion, undersurface cuff tear, extensive debridement, subacromial decompression, and distal clavicle resection performed on May 10, 2007; left shoulder rotator cuff tear; status post left shoulder arthroscopy, mini open rotator cuff repair performed December 13, 2007

- Right shoulder full thickness rotator cuff tear, impingement syndrome, acromioclavicular joint arthrosis, and superior labral tear, April 2015; status post right shoulder arthroscopic rotator cuff repair with two anchors, arthroscopic biceps tenodesis, subacromial decompression, and distal clavicle resection performed on June 26, 2015

- Lumbar strain with small disc protrusion L3-4 and mild central canal stenosis, January 2016

Dr. Hinton gave the following restrictions: use caution with pushing and pulling, use caution with extremes of heavy lifting and strenuous activity; avoid excessive prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing; avoid overhead use of upper extremities; avoid excessive and repetitive use of upper extremities; avoid use of equipment that creates torque, vibration, or impact to the upper extremities; avoid exposure to loud environments; avoid stressful situations; and avoid any activity that exacerbates symptoms or is known to cause progression of the disease process.

Dr. Hinton provided the following ratings:

- 18% PPD to the body as a whole due to hearing loss and tinnitus due to the 3/11/16 occupational injury

- 22% PPD of the upper left extremity at the hand or wrist resultant from the 1/27/16 injury

- 15% PPD to the upper right extremity at the hand or wrist resultant from the 1/27/16 injury

- 17.5% PPD to the lower right extremity at the right knee (2002)

- 30% PPD of the lumbar spine (2003)

- 30% PPD to the left shoulder (2005)

- 22.5% PPD of the right shoulder (2015)

- 8.75% PPD of the lumbar spine (2016)

Dr. Hinton opined Employee is permanently and totally disabled as a result of the combination of the January 27, 2016 and March 11, 2016 occupational injuries and his preexisting conditions.

In his deposition testimony, Dr. Hinton was asked if Employee would still be permanently and totally disabled without the tinnitus claim and excluding the back injury from 2016, and Dr. Hinton believed Employee would still be totally disabled. However, Dr. Hinton confirmed on cross-examination that he believed Employee was totally disabled due to a combination of his back injuries, right knee injury, bilateral shoulder injuries and his bilateral

carpal tunnel syndrome and his hearing loss and that all of those conditions contribute to his total disability.

At the request of Employee, Mr. Kaver performed a vocational evaluation on May 6, 2020, and was deposed on March 25, 2021. Mr. Kaver opined Employee was unable to return to the workforce to obtain gainful employment in the open labor market due to the combination of his January 21,2016 injury in combination with his preexisting conditions, which includes the right knee injury in 2002, the low back injury in 2003, the left shoulder injury in 2005, and the right shoulder injury in 2015, as well as the left and right wrists in 2016.

In his deposition, Mr. Kaver testified that he considered Employee's January 27, 2016 claim to his upper extremities as a preexisting condition to his low back claim. Mr. Kaver was also asked if he excluded the January 21, 2016 low back claim, if Employee would still be totally disabled, and Mr. Kaver was not able to exclude that condition from his total disability because Employee continued to work.

Mr. Kaver was provided a copy of Dr. Hinton's report after his own report, but he did not issue any other reports after reviewing Dr. Hinton's report or discuss on any of the restrictions provided by Dr. Hinton. While Mr. Kaver was aware of Employee's hearing loss and tinnitus claim, he does not provide an opinion as to that condition or whether it would contribute to Employee's total disability.

The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. Id. at 704 .

Under RSMo § 287.020.6, "total disability" is defined as the "inability to return to any employment and does not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability is claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his/her present physical condition. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173

(Mo. App. E.D. 1995), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).

When the Fund is involved, the disability attributable to the primary injury must be determined first. Roller v. Treasurer of the State of Missouri, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Id. On the other hand, "[w]here a preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the Employee for the permanent total disability after the employer has paid the compensation due the Employee for the disability resulting from the work-related injury." Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363, 366 (Mo. App. 1992) (emphasis added).

If the last injury alone did not cause Employee's total disability, then the requirements of Fund liability must still be met. Section 287.220, which governs Fund liability, was amended effective January 1, 2014. These amendments changed the structure of Fund liability for both permanent partial and permanent total disability benefits. The amended law applies in this case.

Section 287.220 .3 provides that permanent total disability against the Fund is compensable if the preexisting conditions meet certain requirements, outlined in the statute as categories. First, the preexisting disability must be "medically documented" and must equal fifty weeks of permanent partial disability compensation. $\S 287.220 .3(2)$ (a). Second, not only must the preexisting disability equal fifty weeks of compensation, the disability must also fall into one of four categories:

i. An injury as a direct result of active military service;

ii. An injury as a direct result of a compensable injury as defined in 287.020;

iii. not a compensable injury, but such pre-existing 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;

iv. A pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, where there is a subsequent compensable workrelated injury as set forth in subsection b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.

§ 287.220.3(2)(a)(i-iv).

The Missouri Supreme Court has given further guidance on this subsection in the recent Parker decision. While the Court held that multiple preexisting conditions can be considered to combine with the primary condition, the Court stated the preexisting conditions must still qualify by meeting all of the conditions as stated in subsection three. Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. 2021).

There was no evidence presented that this claim in combination with preexisting conditions that qualify under $\S 287.220 .3$ resulted in Employee becoming permanently and

**Injury No. 15-024270; 16-005037; 16-005266; 16-022878**

totally disabled. Therefore, Employee has failed to meet his burden of proof showing he is permanently and totally disabled as a result of this primary claim in combination with his preexisting conditions that meet the requirements of the new law as stated in § 287.220.3. Therefore, Employee's claim against the Second Injury Fund is denied.

**16-005266**

The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. *Id.* at 704.

Under RSMo § 287.020.6, "total disability" is defined as the "inability to return to any employment and does not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability is claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his/her present physical condition. *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173 (Mo. App. E.D. 1995), overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). When the Fund is involved, the disability attributable to the primary injury must be determined first. *Roller v. Treasurer of the State of Missouri*, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. *Id.* On the other hand, "[w]here a preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the Employee for the permanent total disability *after* the employer has paid the compensation due the Employee for the disability resulting from the work-related injury." *Reiner v. Treasurer of State of Missouri*, 837 S.W.2d 363, 366 (Mo. App. 1992) (emphasis added).

If the last injury alone did not cause Employee's total disability, then the requirements of Fund liability must still be met. Section 287.220, which governs Fund liability, was amended effective January 1, 2014. These amendments changed the structure of Fund liability for both permanent partial and permanent total disability benefits. The amended law applies in this case.

Section 287.220.3 provides that permanent total disability against the Fund is compensable if the preexisting conditions meet certain requirements, outlined in the statute as categories. First, the preexisting disability must be "medically documented" and must equal fifty weeks of permanent partial disability compensation. §287.220.3(2)(a). Second, not only must the preexisting disability equal fifty weeks of compensation, the disability must also fall into one of four categories:

*MNKOI 0000914466*

i. An injury as a direct result of active military service;

ii. An injury as a direct result of a compensable injury as defined in 287.020 ;

iii. not a compensable injury, but such pre-existing 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;

iv. A pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, where there is a subsequent compensable workrelated injury as set forth in subsection b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.

$\S 287.220 .3(2)(a)(i-i v)$.

The Missouri Supreme Court has given further guidance on this subsection in the recent Parker decision. While the Court held that multiple preexisting conditions can be considered to combine with the primary condition, the Court stated the preexisting conditions must still qualify by meeting all of the conditions as stated in subsection three. Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. 2021); See also, Phelps v. Missouri State Treasurer, 629 S.W.3d 47, 58 (Mo. App. S.D. 2021), transfer denied (Oct. 5, 2021).

Strictly construing this statute, I find Employee has failed to meet his burden to prove that he is entitled to Fund benefits.

The only expert that might have considered this claim as the primary claim is Mr. Kaver because he thought Injury \#16-005037 (bilateral wrist claim) preexisted this claim. Therefore, if the bilateral wrists were a preexisting condition, then Mr. Kaver considered a non-qualifying preexisting condition. The left wrist settled for 15 %, or 26.25 weeks, and the right wrist settled for 2.5 %, or 4.375 weeks. Employee's own physician rated each extremity at less than 50 weeks, i.e. 22 % of the left wrist or 38.5 weeks and 15 % of the right wrist or 26.25 weeks. Based on all of the evidence presented, I find that Employee sustained 15 % permanent partial disability of the left wrist ( 26.25 weeks) and 2.5 % of the right wrist ( 4.375 weeks). Therefore, neither hand reaches the 50 -week threshold by itself.

In addition, Mr. Kaver considered the 2002 right knee, which is another non-qualifying condition as it settled and was rated by Employee's own rating physician at less than 50 weeks, or specifically 17.5 % permanent partial disability of the right knee ( 28 weeks). Based on all of the evidence presented, I find Employee sustained 17.5 % permanent partial disability from his 2002 right knee injury.

Employee has failed to meet his burden of proof that he is permanently and totally disabled as a result of this primary claim in combination with his preexisting conditions that meet the requirements of the new law as stated in $\S 287.220 .3$. Therefore, Employee's claim against the Second Injury Fund is denied.

Employee alleges he developed carpal tunnel in his left and right wrist due to his repetitive work at Noranda. From 2002 to 2016, Employee worked as a department service person doing light fabrication with aluminum, welding and sanding blocks. He would use a sledgehammer daily and could hit pieces five or six times. Employee used the sander for about four hours per day and it would vibrate.

Employee was evaluated by Dr. Vaught on March 2, 2016. Dr. Vaught opined that Employee's symptoms in his left upper extremity were not causally related to his employment at Noranda.

Dr. Hinton opined that Employee sustained bilateral carpal tunnel syndrome resultant from occupational injury occurring January 27, 2016.

Based on all of the evidence presented, including the credible testimony of Employee regarding his work related activities, I find the opinion of Dr. Hinton more credible and persuasive than the opinion of Dr. Vaught on the issues of medical causation and occupational disease. Based on all of the evidence presented, I find that on or about January 27, 2016, Employee sustained the occupational disease of bilateral carpal tunnel syndrome, which was arising out of and in the course of his Employment at Noranda. I find that Employee's work at Noranda was the prevailing factor in causing Employee's bilateral carpal tunnel syndrome. Furthermore, I find that Employee's bilateral hand injuries were medically causally related to his occupational disease.

The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. Id. at 704.

Under RSMo § 287.020.6, "total disability" is defined as the "inability to return to any employment and does not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability is claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his/her present physical condition. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173

(Mo. App. E.D. 1995), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).

When the Fund is involved, the disability attributable to the primary injury must be determined first. Roller v. Treasurer of the State of Missouri, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Id. On the other hand, "[w]here a preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the Employee for the permanent total disability after the employer has paid the compensation due the Employee for the disability resulting from the work-related injury." Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363, 366 (Mo. App. 1992) (emphasis added).

If the last injury alone did not cause Employee's total disability, then the requirements of Fund liability must still be met. Section 287.220, which governs Fund liability, was amended effective January 1, 2014. These amendments changed the structure of Fund liability for both permanent partial and permanent total disability benefits. The amended law applies in this case.

Section 287.220 .3 provides that permanent total disability against the Fund is compensable if the preexisting conditions meet certain requirements, outlined in the statute as categories. First, the preexisting disability must be "medically documented" and must equal fifty weeks of permanent partial disability compensation. $\S 287.220 .3(2)$ (a). Second, not only must the pre-existing disability equal fifty weeks of compensation, the disability must also fall into one of four categories:

i. An injury as a direct result of active military service;

ii. An injury as a direct result of a compensable injury as defined in 287.020;

iii. not a compensable injury, but such pre-existing 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;

iv. A pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, where there is a subsequent compensable workrelated injury as set forth in subsection b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.

§ 287.220.3(2)(a)(i-iv).

The Missouri Supreme Court has given further guidance on this subsection in the recent Parker decision. While the Court held that multiple preexisting conditions can be considered to combine with the primary condition, the Court stated the preexisting conditions must still qualify by meeting all of the conditions as stated in subsection three. Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. 2021); See also, Phelps v. Missouri State Treasurer, 629 S.W.3d 47, 58 (Mo. App. S.D. 2021), transfer denied (Oct. 5, 2021).

**Injury No. 15-024270; 16-005037; 16-005266; 16-022878**

The only expert that considered this claim as the primary claim is Dr. Hinton and he only did so after being asked to exclude the March 11, 2016 injury and the January 21, 2016 low back injury. Dr. Hinton's opinion was that Employee is permanently and totally disabled as a result of the combination of the January 27, 2016 and March 11, 2016 occupational injuries and his preexisting conditions, and he confirmed on cross-examination that it was his opinion that he believed Employee was totally disabled due to a combination of his back injuries, right knee injury, bilateral shoulder injuries and his bilateral carpal tunnel syndrome and his hearing loss and that all of those conditions contribute to his total disability.

Dr. Hinton was then asked to exclude the last in time Injury #16-022878 for the hearing loss and tinnitus, thereby making this claim the primary claim. In that case, the preexisting conditions would be the 2002 right knee, the 2003 lumbar spine, the 2005 left shoulder, the 2015 right shoulder, and the 2016 lumbar spine (Dr. Hinton was later asked to exclude this condition as well). Out of those conditions, the ones that meet the threshold requirement are the 2003 lumbar spine, the 2005 left shoulder and the 2015 right shoulder. The 2002 right knee settled and was rated by Employee's own rating physician at less than 50 weeks, or specifically 28 weeks. Therefore, based on all of the evidence presented, I find that Employee sustained 28 weeks of disability to the right knee from his 2002 right knee injury.

Dr. Hinton was considering a non-qualifying conditions as contributing to Employee's total disability. Dr. Hinton's opinion is insufficient to support a finding that Employee is permanently and totally disabled as a result of the January 27, 2016 claim as the primary claim and would inconsistent with the Supreme Court's holding in *Parker*. Employee has failed to meet his burden of showing he is permanently and totally disabled as a result of this primary claim in combination with his preexisting conditions that meet the requirements of the new law as stated in § 287.220.3. Therefore, Employee's claim against the Second Injury Fund is denied.

**16-022878**

The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. *Id.* at 704.

Under RSMo § 287.020.6, "total disability" is defined as the "inability to return to any employment and does not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability is claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his/her present physical condition. *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173

22

(Mo. App. E.D. 1995), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).

When the Fund is involved, the disability attributable to the primary injury must be determined first. Roller v. Treasurer of the State of Missouri, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Id. On the other hand, "[w]here a preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the Employee for the permanent total disability after the employer has paid the compensation due the Employee for the disability resulting from the work-related injury." Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363, 366 (Mo. App. 1992) (emphasis added).

If the last injury alone did not cause Employee's total disability, then the requirements of Fund liability must still be met. Section 287.220, which governs Fund liability, was amended effective January 1, 2014. These amendments changed the structure of Fund liability for both permanent partial and permanent total disability benefits. The amended law applies in this case.

Section 287.220 .3 provides that permanent total disability against the Fund is compensable if the preexisting conditions meet certain requirements, outlined in the statute as categories. First, the preexisting disability must be "medically documented" and must equal fifty weeks of permanent partial disability compensation. $\S 287.220 .3(2)$ (a). Second, not only must the pre-existing disability equal fifty weeks of compensation, the disability must also fall into one of four categories:

i. An injury as a direct result of active military service;

ii. An injury as a direct result of a compensable injury as defined in 287.020;

iii. not a compensable injury, but such pre-existing 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;

iv. A pre-existing permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, where there is a subsequent compensable workrelated injury as set forth in subsection b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.

§ 287.220.3(2)(a)(i-iv).

The Missouri Supreme Court has given further guidance on this subsection in the recent Parker decision. While the Court held that multiple preexisting conditions can be considered to combine with the primary condition, the Court stated the preexisting conditions must still qualify by meeting all of the conditions as stated in subsection three. Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. 2021); See also, Phelps v. Missouri State Treasurer, 629 S.W.3d 47, 58 (Mo. App. S.D. 2021), transfer denied (Oct. 5, 2021).

Strictly construing this statute, I find Employee has failed to meet his burden to prove that he is entitled to Fund benefits.

The only expert that considered this claim as the primary claim is Dr. Hinton. Dr. Hinton opined Employee is permanently and totally disabled as a result of the combination of the January 27, 2016 and March 11, 2016 occupational injuries and his preexisting conditions.

For the preexisting conditions, Dr. Hinton considered the 2002 right knee, the 2003 lumbar spine, the 2005 left shoulder, the 2015 right shoulder, and the 2016 lumbar spine. (It should be noted that the 2016 left and right wrist claim would also be a preexisting condition although Dr. Hinton combines it with the March 11, 2016 claim). Out of those conditions, the only ones that meet the 50 -week requirement are the 2003 lumbar spine, the 2005 left shoulder and the 2015 right shoulder.

The 2002 right knee settled and was rated by Employee's own rating physician at less than 50 weeks, or specifically 17.5 % permanent partial disability of the right knee ( 28 weeks). Based on all of the evidence presented, I find Employee sustained 17.5 % permanent partial disability from his 2002 right knee injury.

Similarly, the bilateral wrist claim is not a qualifying preexisting condition because it does not meet threshold. The left wrist settled for 15 %, or 26.25 weeks, and the right wrist settled for 2.5 %, or 4.375 weeks. Employee's own physician rated each extremity at less than 50 weeks, i.e. 22 % of the left wrist or 38.5 weeks and 15 % of the right wrist or 26.25 weeks. Based on all of the evidence presented, I find that Employee sustained 15\% permanent partial disability of the left wrist ( 26.25 weeks) and 2.5 % of the right wrist ( 4.375 weeks). Therefore, neither hand reaches the 50 -week threshold by itself.

No evidence was presented which supports a finding that the March 11, 2016 hearing loss claim in combination with the 2003 lumbar spine, the 2005 left shoulder and the 2015 right shoulder are enough to cause Employee to be permanently and totally disabled. All evidence suggests Employee is permanently and totally disabled as a result of all of his conditions, both qualifying and non-qualifying, which would be inconsistent with the Supreme Court holding in Parker.

Based on all of the evidence presented, I find that Employee has failed to meet his burden of showing he is permanently and totally disabled as a result of this primary hearing loss/tinnitus claim in combination with his preexisting conditions that meet the requirements of the new law as stated in $\S 287.220 .3$. Therefore, Employee's claim against the Second Injury Fund is denied.

I certify that on Jan 252022

I 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: $\frac{\text { Hoomi }}{}$ Brassen


Made by:

Maureen Byrne

Administrative Law Judge

Division of Workers' Compensation