Peggy Callahan v. Lake Regional Health System

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 17-092543

Employee: Peggy Callahan

Employer/Insurer: Lake Regional Health System (settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

§287.220.3(2) and (3) RSMo provide, in relevant part:

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability,

as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

Under § 287.220, "[p]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined." ${ }^{1}

According to the Supreme Court in Second Injury Fund v. Parker, { }^{2}$ to establish a compensable Second Injury Fund claim under § 287.220.3, an employee must meet two conditions:

(1) Have at least one "qualifying" preexisting disability as defined by § 287.220.3(2)(a);

(2) Thereafter sustain a subsequent compensable work-related injury that combined with employee's qualifying preexisting disability(ies) results in permanent total disability. ${ }^{3}$

A "qualifying" preexisting disability need not have been known to employee or reached maximum medical improvement before employee's primary work injury. ${ }^{4}$

In Klecka, the Court stated that:

Under-section 287.220.3, employees must meet two conditions to make a compensable [permanent and total disability] claim against the [Second Injury] Fund. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal at least 50 weeks of [permanent partial disability], and meet one of four listed criteria in-section 287.220.3(2)(a)a(i)-(iv)....[Second, the employee must show he 'thereafter sustains a subsequent compensable work-related injury [often referred to as the primary injury] that, when combined with the preexisting disability[,] ... results in a permanent total disability as defined under this chapter.' [Section 287.220.3(2)(a)b]. As this Court recently explained in Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021):

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[^0]: ${ }^{1}$ Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo.banc 2003).

${ }^{2} 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021).

{ }^{3} Parker, 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021).

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

'[A]n employee satisfies the second condition by showing the primary injury results in [permanent and total disability] when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition.'5

The Court in Klecka also noted that the employee in that case "correctly observes section 287.220 .3 does not prohibit the consideration of other 'life factors,' including, but not limited to... age, education, transferable skills, and physical appearance."6

As noted by the administrative law judge, employee settled the November 10, 2017 injury claim against the employer/insurer based on permanent partial disability of 40 % of the left hip. Employee also settled a claim against the employer/insurer or an October 5, 2016 injury based on permanent partial disability 33 % of the right shoulder and 25 % of the body referable to the neck. However, the parties did not stipulate at the hearing that the prior settlements reflected the extent of permanent partial disability in the claim against the Second Injury Fund.

Employee also had a preexisting left hip injury which was not work-related. Employee's expert, Dr. Neighbor, opined that employee had a preexisting disability of 20 % of the left hip ( 41.4 weeks). This preexisting disability is below the 50 -week statutory threshold. We also find that employee failed to prove that her preexisting left hip injury "directly and significantly aggravates or accelerates the subsequent work-related injury." ${ }^{7}$ The preexisting left hip is therefore not a qualifying disability for Second Injury Fund liability.

Based upon our review of the evidence, we find employee does not qualify for Second Injury Fund benefits because the medical and vocational expert testimony presented by employee's experts considered non-qualifying disabilities in their opinions of whether employee was permanently and totally disabled (PTD). The experts considered the qualifying disabilities from the October 5, 2016 injury to her right shoulder and neck (the 2016 injury) in conjunction with a non-qualifying disability (her preexisting left hip injury prior to 2016) in order to reach their conclusion that employee was PTD. As the Court directed in Parker and Klecka, non-qualifying disabilities are not to be used in determining whether an employee is entitled to Second Injury Fund benefits: "Nonqualifying preexisting disabilities cannot be considered in determining whether a claimant satisfies the second condition of section 287.220(3)."8

None of the medical or vocational experts opined that employee's two qualifying (over 50 weeks) right shoulder and neck disabilities from her October 5, 2016 injury combined with her November 10, 2017 primary left hip injury (the 2017 injury) to render her PTD. Employee's experts opined that she was PTD due to the primary injury and all of her preexisting disabilities, including her non-qualifying preexisting disabilities. Therefore, employee does not qualify for Second Injury Fund benefits based upon the record in this case.

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[^0]: ${ }^{5} Klecka, 644 S.W.3d at 566.

{ }^{6} Id. at 567 .

{ }^{7} \S 287.220 .3(2).

{ }^{8}$ See Klecka, 644 S.W.3d at 567 (citing Parker, 622 S.W.3d at 182).

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Employee argues in her brief that this Commission should combine the number of weeks from the Second Injury Fund qualifying preexisting disabilities (right shoulder and neck) with the 2017 injury, which would equal 259.36 weeks. Under §287.220.3, Second Injury Fund liability is not calculated by combining disabilities in that manner.

We note that based upon the testimony of Dr. David Minges and vocational expert Mr. Robert Hosutt, employee may not be PTD. Dr. Minges opined that employee was not permanently partially disabled (PPD) due to her 2017 injury, and assigned no PPD for the 2017 injury. Additionally, according to Dr. Minges, employee had only 2% PPD of the body as a whole at the cervical spine due to the 2016 injury, and the remaining 15% PPD at that level was due to natural aging. Mr. Hosutt further opined that there were a number of jobs that employee can perform.

Moreover, employee continued to work after the 2016 injury and the 2017 injury. Employee resigned from employer on July 26, 2020, but continued to work after her resignation until September 18, 2020.

Therefore, we find that employee has not sustained her burden of proof and persuasion that she qualifies for Second Injury Fund benefits.

We affirm and adopt the award of the administrative law judge as supplemented herein.

Employee’s claim against the Second Injury Fund is denied because employee failed to demonstrate that the primary injury combines with qualifying preexisting disabilities to result in permanent total disability.

The award and decision of Administrative Law Judge Hannelore D. Fischer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **21st** day of November 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Hodney J. Campbell, Chairman**

**DISSENTING OPINION FILED**

**Shalonn K. Curls, Member**

**Kathryn Ryan, Member**

Attest:

**Sue L. Hoag**

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record.

I would reverse the administrative law judge's award and find that employee is permanently and totally disabled due to a combination of her November 10, 2017 primary injury and preexisting disabilities; and that the Second Injury Fund is liable to employee for permanent total disability benefits.

Dr. Neighbor and Mr. Dreiling both opined that employee was permanently and totally disabled due to the combination of her 2017 primary injury to her left hip, her preexisting 2016 compensable disabilities to her right shoulder and her neck, and her preexisting left hip disability prior to 2016.

"In 2013, the legislature amended section 287.220 to limit the number of workers eligible for fund benefits because the fund was insolvent."1 It is reasonable to infer that the legislature's statutory changes were designed to ensure that the most severely injured workers be given priority in determining eligibility for an award against the Second Injury Fund.

No provision of § 287.220.3(2) RSMo requires the administrative law judge or the Commission to confine its consideration of medical causation of an employee's permanent total disability to the specific words used by a medical or vocational expert without regard for the context of their opinions. The administrative law judge correctly based her Second Injury Fund permanent total disability award on careful consideration of the evidence in the record as a whole regarding the seriously disabling effects of the employee's multitude of disabling preexisting conditions in combination with disability attributable to her primary injury.

As noted by the Southern District in Pavia v. Smitty's