Donald Brown v. Noranda Aluminum, Inc.

Employee's medical condition and resulting work-related restrictions post injury. Once a physician does that, the requirement of $\S 287.190 .6(2)$ is satisfied, and it is within the Commission's expertise to determine whether the employee, with the medical conditions and physical limitations confirmed by the physician, is employable. See Patterson, 452 S.W.3d at 767 ("[U]ltimately, the employability of an individual is a technical matter within the Commission's expertise.").

The above brief amendment to the ALJ's award does not detract from her legal reasoning or her correct analysis of the evidence in the record.

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

The award and decision of Administrative Law Judge Amy L. Young, issued May 3, 2022, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 3rd \qquad$ day February of 2023.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Shalonn K. Curls, Member

DISSENTING OPINION FILED

Kathryn Swan, Member

Attest:


I have reviewed the evidence, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to affirm the administrative law judge's (ALJ) decision.

The ALJ and Commission majority found that employee is permanently and totally disabled (PTD) from the 2016 primary injury combined with three preexisting disabilities:

- September 13, 2010 injury: 32.5 % of the body as a whole (BAW) referable to the lumbar spine;

- September 13, 2010 injury: 30\% of the left elbow (63 weeks) and a 10\% load factor (19.3 weeks); and

- July 16, 2007 injury: 17.5 % of the left elbow ( 36.75 weeks).

In determining that the Second Injury Fund (Fund) bears liability for PTD, the ALJ and Commission majority stacked two distinct injuries, combining the qualifying left elbow injury in September 13, 2010 with the non-qualifying July 16, 2007 left elbow injury. I find no authority for that approach.

There is no provision in the Workers' Compensation Act that expressly permits stacking to determine Fund liability for PTD. Further, the Supreme Court of Missouri and the lower appellate courts have not ruled on whether cumulative disabilities can be stacked to find the Fund liable under $\S 287.220 .3$ RSMo.

It is clear, however, that the intent of the Missouri Legislature's 2013 amendments to § 287.220.3 RSMo was to limit the Fund's liability. Treasurer of the State as Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021). I conclude that the ALJ's decision as affirmed by the Commission majority in this case incorrectly expands the Fund's Liability and is contrary to the legislature's intent.

For these reasons, I respectfully dissent from the majority's decision in this matter.

Employee: Donald Brown

Injury No. 16-027102

Dependents: N/A

Employer: Noranda Aluminum, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Co. (Settled)

Appearances: Thomas W. Collins, III for Employee

Crystal Williams for the Second Injury Fund

Hearing Date: February 7, 2022

Checked by: ALY/kg

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? February 9, 2016.
5. State location where accident occurred or occupational disease contracted: New Madrid County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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 the employer insured by above insurer? Yes.

On February 7, 2022, the employee, Donald Brown, appeared in person and with his attorney, Thomas W. Collins, III, for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Crystal Williams. For purposes of judicial efficiency and convenience of the parties, the Hearing included evidence for both Injury No. 16-027102 and Injury No. 16-011590. Separate awards are being issued for each case. 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 a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by New Hampshire Insurance Company.
2. On or about the date of the alleged accident or occupational disease, the employee was an employee of Noranda Aluminum and was working under the Workers' Compensation Act.
3. On or about February 9, 2016, the employee sustained an accident or occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 2,123.47, resulting in a compensation rate of $\ 886.92 for temporary total disability benefits and $\ 464.58 for permanent partial disability benefits.
7. Medical aid was furnished by Employer-Insurer in the amount of $\ 4,215.75.
8. Temporary total disability was paid by Employer-Insurer in the amount of $\ 7,728.87 for 8 $6 / 7$ weeks.
9. Employee reached maximum medical improvement on August 16, 2016.
10. The Stipulation for Compromise Settlement in Injury No. 16-011590 should read "BAWHemorrhoid" and the Stipulation for Compromise Settlement in Injury No. 16-027102, marked as Exhibit 6, should read "BAW-Back."

1. Liability of the Second Injury fund for permanent total disability.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

1. IME performed by David T. Volarich, M.D.
2. Deposition of J. Stephen Dolan
3. Vocational and Rehabilitation Assessment of Donald Dwayne Brown performed by J. Stephen Dolan, M.A., C.R.C., L.C.P.C.
4. Curriculum Vitae of J. Stephen Dolan, M.A., C.R.C.
5. Stipulation for Compromise Settlement for Injury No. 16-011590
6. Stipulation for Compromise Settlement for Injury Number 16-027102
7. Stipulation for Compromise Settlement, Injury No. 10-073845
8. Stipulation for Compromise Settlement, Injury No. 10-073845 SIF
9. Medical records of Regional Brain and Spine
10. Medical records of Orthopedic Sports Medicine \& Spine Care Institute
11. Functional Capacity Evaluation performed by The Work Center, Inc.
12. Medical records of James Coyle, M.D., 1 of 3
13. Medical records of James Coyle, M.D., 2 of 3
14. Medical records of James Coyle, M.D., 3 of 3
15. Medical Records of Patrick Knight, M.D.
16. X-ray films
17. Medical records of Colleen Hunter-Pearson, M.D. 1 of 4
18. Medical records of Colleen Hunter-Pearson, M.D. 2 of 4
19. Medical records of Colleen Hunter-Pearson, M.D. 3 of 4
20. Medical records of Colleen Hunter-Pearson, M.D. 4 of 4
21. Medical records of Mercy Hospital, 1 of 11
22. Medical records of Mercy Hospital, 2 of 11
23. Medical records of Mercy Hospital, 3 of 11
24. Medical records of Mercy Hospital, 4 of 11
25. Medical records of Mercy Hospital, 5 of 11
26. Medical records of Mercy Hospital, 6 of 11
27. Medical records of Mercy Hospital, 7 of 11
28. Medical records of Mercy Hospital, 8 of 11
29. Medical records of Mercy Hospital, 9 of 11
30. Medical records of Mercy Hospital, 10 of 11
31. Medical records of Mercy Hospital, 11 of 11
32. Medical records of Orthopedic Center of St. Louis, 1 of 2
33. Medical records of Orthopedic Center of St. Louis, 2 of 2
34. Medical records of Pain Management Services, 1 of 2
35. Medical records of Pain Management Services, 2 of 2
36. Medical records of Bootheel Primary Care
37. Medical records of Loring Helfrich, M.D.

The Second Injury Fund did not present any witnesses or exhibits.

The Court took judicial notice of all the records contained in the files of the Division of Workers' Compensation. The Second Injury Fund objected to judicial notice being taken of Dr.

Musich's report dated October 5, 2012, to the extent it is included in the Division's file because the report was not admitted into evidence as part of this proceeding. Employee did not argue against Employer-Insurer's objection. The Court took the objection under advisement. The report is not found in the Division's records, therefore the objection is moot. Nonetheless, to the extent the report may be found in the Division's file, the objection is sustained and the report will be excluded from evidence.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

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

Employee lives in New Madrid, Missouri with his wife. He has two adult children. He graduated high school in 1986. He began working for Noranda (hereafter "Employer") in 1987 tending to smelter pots. From 1991 until 2010, he worked as a pot re-conditioner. This job required him to operate an excavator equipped with a jackhammer. He used the excavator to break down and remove material used in the aluminum smelting pots. He would build new pots using brick and refractory blocks. This required him to weld the steel used to hold the pots in place. He also operated an 18 wheeler to carry pots around the plant. His job was considered a heavy manual labor job. After a back injury in 2010, he was given permanent restrictions and was moved to a different job for Employer where he operated a machine that rethreads bolts. He also served as a monitor for employee training and acted as an errand runner. Following a large company layoff, he was moved back to his position as a pot re-conditioner in February of 2016.

Employee has a history of anxiety and panic attacks dating back as early as 2005. In April of 2010, Employee saw Dr. Colleen Hunter Pearson for complaints of chest pain that was considered a manifestation of his anxiety. Employee has been prescribed various medications over the years to treat his anxiety and panic attacks. He currently takes Valium and Buspar.

On July 16, 2007, Employee ruptured his biceps tendon while cutting a bolt at work for Employer. The bolt popped up and threw him into the side of a pot. The injury was accepted as

**Injury No. 16-027102**

Compensable and Employer-Insurer provided authorized medical care. After Employee failed conservative care, Dr. David Strege performed a left distal biceps tendon tenolysis on September 4, 2008. Employee filed a claim for workers' compensation. He settled his claim against Employer for 17.5% of the left elbow (36.75 weeks). He returned to work without significant restrictions.

On September 13, 2010, Employee injured his low back while using a pry bar to separate two catwalks that had become stuck together in a magnetized room. Employee underwent physical therapy, nerve blocks, trigger point injections, epidural steroid injections, and heat therapy. After conservative treatment failed, Dr. James Coyle opined that Employee needed surgery and that the September 13, 2010 work accident was the prevailing factor in causing his condition and need for treatment. Dr. Coyle performed a spinal fusion on July 14, 2011 from L4 through S1. After surgery, Employee awoke with numbness and tingling in his left ulnar-sided forearm and his left 4th and 5th digits. He was evaluated by Dr. David Knight and diagnosed with ulnar neuropathy causally related to his positioning during his lumbar spine surgery. Dr. Knight performed a left cubital tunnel release of the left elbow, but it did not relieve the numbness. Thereafter, Employee was referred to Dr. David Brown, who performed a second ulnar nerve surgery. The second surgery helped a little bit, but Employee continues to experience numbness and tingling in his fingers. Dr. Brown released Employee to full duty with no restrictions.

Employee was thereafter referred to Dr. Gregory Smith for pain management. Dr. Smith recommended a spinal cord stimulator. Ultimately it was determined by Dr. Cantrell that a spinal cord stimulator would not be beneficial and he released Employee at maximum medical improvement (hereafter "MMI") with a final rating of 20% permanent partial disability to the body as a whole. Neither Dr. Coyle nor Dr. Cantrell assigned work restrictions, however Dr. Smith recommended restrictions of no lifting greater than 15 pounds, no excessive bending, no climbing, no crawling, and no squatting. He further recommended Employee continue taking prescription pain medication.

Employee has had persistent low back symptoms since his 2011 surgery. He returned to work for Employer, but was placed in a less physically demanding job in the shop where he did not lift more than 10 pounds. He threaded bolts and prepared materials to use in the plant. This job also allowed him to change positions from seated to standing on an as-needed basis.

Employee settled his claim against Employer-Insurer for his September 13, 2010 injury for 32.5% body as a whole referable to the lumbar spine (130 weeks), 30% of the left elbow (63 weeks), and a 10% load factor. The settlement totaled 212.3 weeks of disability. Employee settled his claim against the Second Injury Fund for 32.5% of the body as a whole (lumbar), 30% of the left elbow (carpal tunnel syndrome) for the primary injury and 17.5% of the left elbow (biceps tendon) and 10% body as a whole (anxiety) for his preexisting disabilities.

Following lay-offs at Noranda in 2016, Employee was re-assigned to a more physically demanding job, which led to his 2016 injury discussed below.

On or about February 9, 2016, Employee strained his low back at work while operating a jackhammer.

On or about February 22, 2016, he sustained a thrombosed external hemorrhoid while squatting to pick up chains at work. The hemorrhoid was surgically excised. After surgery, his symptoms completely resolved. He was released at MMI for the February 22, 2016 injury on May 9, 2016.

Employee's back symptoms persisted and he was evaluated by Dr. Russell Cantrell on March 8, 2016. Dr. Cantrell ordered a CT scan that confirmed his prior 2010 fusion was solid and there was no evidence of hardware failure. Dr. Cantrell released Employee at MMI with permanent restrictions of lifting less than 20 pounds, pushing/pulling less than 150 pounds, and to avoid repetitive bending.

Employee requested Employer-Insurer provide a second opinion. Employee was evaluated by Dr. Kevin Vaught on June 15, 2016, for complaints of low back pain rated at 10/10 and pain, numbness, and tingling in both legs. Employee provided a history of low back pain since 2010 with exacerbation of symptoms and severe leg pain since the February 2016 accident. Dr. Vaught ordered an EMG-NCS and an MRI. The EMG-NCS showed mild to moderate, left greater than right, L5-S1 lumbar root level lesion. The MRI revealed surgical changes, mild to moderate bilateral foramina stenosis at L3-4, scar tissue at L4-5 and L5-S1. Dr. Vaught diagnosed lumbar strain with bilateral leg pain and numbness status post 2011 lumbar fusion at L4-L5. With regard to causation, he opined, "Donald D. Brown reports low back pain which persisted following lumbar fusion surgery which was related to an occupational injury in 2010. He was functioning in the community as well as in the workplace, with modifications. Since the February 2016 occupational injury he has experienced additional lower back and newly reported leg symptoms. Mr. Brown reports that his current lower back and leg symptoms render him unable to work and have interfered with his ability to function at his pre-injury (02/08/2016) baseline both at home and in the community. The February 8, 2016 work incident is the prevailing factor in causing the current diagnoses." ${ }^{1}$ Dr. Vaught recommended conservative treatment and referred Employee to pain management. Dr. Vaught released Employee at MMI from a neurosurgical standpoint on July 18, 2016. He also recommended restrictions of no lifting greater than 10 pounds, no highly repetitive bending, stooping, or twisting, no overhead work, no flexion/extension of the spine and sedentary work only.

Employee returned to Dr. Cantrell. Dr. Cantrell opined Employee did not suffer any acute pathological anatomical problems as a result of his work accident and attributed his current complaints to his prior two-level fusion.

[^0]

[^0]: ${ }^{1}$ Dr. Vaught refers to the work accident as occurring on February 8, 2016, however, this appears to be a typographical error as he acknowledges the correct date of injury (February 9, 2016) under the "History of Present Illness" section of his report.

Since 2016, Employee's anxiety has gotten worse. Employee was evaluated by Lara Huffman, M.D., a psychiatrist, on June 18, 2018. She diagnosed Employee with severe, recurrent Major Depressive Disorder and panic disorder. She noted that he was able to work before experiencing an onset of multiple health problems and opined that his health problems and psychiatric problems have exacerbated each other. She opined Employee is incapacitated due to a combination of his medical and psychiatric illnesses and he will require chronic treatment.

Employee settled his claim for his February 22, 2016 hemorrhoid injury against Employer-Insurer for 12.5 % of the body as a whole ( 50 weeks). Employee settled his claim against Employer for his February 9, 2016 back injury for 12.5 % of the body as a whole ( 50 weeks). ${ }^{2}$

As a result of the 2010 work injury Employee continues to experience back pain, numbness in his fourth and fifth fingers, and he cannot fully straighten those fingers. He has occasional numbness in his arm that extends to his fingers. He finds it hard to make a fist and has less grip strength. He describes his left hand as weaker than his right hand, making it hard to perform certain activities. He testified that the problems with his left hand make it impossible for him to work on a computer keyboard all day. Employee continued to utilize prescription medication for pain control following the 2010 work injury.

Employee explained that his pain after the February 9, 2016 injury was different and worse than his previous back pain. His back pain is now constant. It is painful to sit, even in a recliner. It hurts to stand too long. He must change positions after approximately 15 minutes. He cannot bend over to tie his shoes and therefore opts to wear slip-on shoes. Employee was observed to be wearing slip-on shoes at the hearing. He now has bilateral pain radiating to his legs and feet. Although he did experience some radiating leg pain following the 2010 accident, it resolved following his 2011 fusion and reoccurred after the February 9, 2016 injury. Employee was observed to use a cane at the hearing and walk slowly with a shuffling gait. Employee testified he uses the cane in his left hand because his left leg is not as strong as the right leg and tends to give out. He has loss of feeling in his foot and tends to trip and fall a lot. He has problems sleeping due to back pain and takes Trazadone to help with sleep.

Employee is able to drive, but limits himself to local driving. He cannot do laundry, cook or clean. He does not mow the lawn because he cannot tolerate the bouncing around. He can no longer perform household repair or work on vehicles. Employee no longer walks in the woods, goes deer hunting, takes his wife dancing, or goes boating on the lake.

Employee is actively seeking treatment for his mental health. He wants to work, but does not believe he is physically capable of doing so.

[^0]

[^0]: ${ }^{2}$ See Stipulation 10 on p. 3 of this Award.

In support of his claim, Employee submits the Independent Medical Evaluation of Dr. David Volarich. As a result of the February 9, 2016 injury, Dr. Volarich diagnosed a severe lumbosacral strain with new disc intrusion at L3-4 and aggravation of his prior L4-S1 fusion and assigned 27.5 % permanent partial disability to the body as a whole. As a result of the February 22, 2016 injury, he diagnosed a thrombosed external hemorrhoid status post hemorrhoidectomy, now asymptomatic with no associated disability.

Pertaining to Employee's preexisting medical conditions, he opined Employee has:

- 40 % permanent partial disability of the body as a whole as a result of lumbar radiculopathy secondary to disc prolapses with annular tears at L4-5 and L5-S1 that necessitated a two level fusion in 2010

- 50 % permanent partial disability attributable to his 2011 left elbow ulnar neuropathy, persistent left elbow cubital tunnel syndrome with revision decompression with sub muscular transposition of the ulnar nerve in 2012 and $2008^{3}$ left biceps partial rupture with tendinitis that necessitated a distal bicep tenolysis.

Dr. Volarich described the combined effect of Employee's injuries as follows:

Leading up to early 2016, he was working light duty. His left elbow did not interfere with his ability to perform his light duty job, as there was not much dependency on back movement or back strength to perform administrative tasks or light production in an office type setting.

When he went back to the pot reconditioning job in early 2016, he was using a 90 -pound jackhammer bending over awkwardly using both arms to operate it. There was significant interplay between his left elbow symptoms, loss of grip strength, and back symptoms from his previous 2010 injury, which combined, enhanced, and acted synergistically to make these operations particularly difficult, as he had to simultaneously bend and twist at the waist while operating the jackhammer. Also, as noted above, a significant portion of his back symptoms were due to the previous back injury, which combined with his $2 / 9 / 16$ back injury and enhanced the difficulty with motion in his back. The interplay between his injuries made it more difficult to function efficiently at work and home.

The combination of his disabilities creates a substantially greater disability that thesimple sum or total of each separate injury/illness, and a loading factor should be added.

Based on my medical assessment alone, it is my opinion that Mr. Brown is permanently and totally disabled as a direct result of the work-related injury of $2 / 9 / 16$ in combination with his preexisting medical conditions. Mr. Brown

[^0]

[^0]: ${ }^{3}$ Dr. Volarich refers to this as a 2008 injury, however records show the injury occurred in 2007 and the surgery for the injury occurred in 2008.

is permanently disabled absent the disability assigned to his $2 / 22 / 16$ work related injury since he continues to be asymptomatic from the hemorrhoidectomy.

Dr. Volarich recommended the following restrictions:

1. He is advised to avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to as needed.
2. He should not handle weights greater than 10 pounds, and limit this to occasionally assuming proper lifting technique.
3. He should not handle weight over his head or away from his body, nor should he carry weight over long distances or uneven terrain.
4. He should avoid remaining in a fixed position for any more than 15-20 minutes at a time, including both sitting and standing.
5. He should change positions frequently to maximize comfort and rest when needed including resting in a recumbent fashion.
6. He should pursue an appropriate stretching, strengthening, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking, or swimming to tolerance daily.

1. I would have advised him to bend, twist, lift, push, pull, carry, climb and perform othersimilar tasks to tolerance.
2. I would have advised him to handle weights to 20

pounds, with proper lifting techniques.

1. I would have advised him to handle weight over his head or away from his body, and to carry weight over distances or uneven terrain to tolerance.
2. I would have advised him to maintain fixed positions including both sitting and standing to tolerance.
3. I would have advised him to change positions frequently to maximize comfort and rest when needed.
4. I would have advised him to pursue an appropriate stretching, strengthening, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking, or swimming to tolerance daily.

1. He is advised on proper ergonomic use of the left upper extremity, and to avoid using the left arm in an awkward or blind fashion.
2. He should minimize repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotatory motions, and similar tasks and limit to as needed.
3. He should avoid impact and vibratory trauma to the left arm, and use appropriate braces, anti-vibration gloves, support straps and other protective devices.
4. He should not handle weights greater than 2-3 pounds with his left upper extremity alone, particularly with the left arm extended away from his body.
5. He should handle weights to tolerance with the left arm dependent, close to his body, but in general, I recommend no more than 15 pounds.

Employee was evaluated by Stephen Dolan, a vocational rehabilitation expert, on October 11, 2017. Mr. Dolan concluded that Employee had an excellent work history, having worked for Employer since he was 19 years old. He administered Employee the Wide Range Achievement Test 4 and noted Employee's test results indicated he was at the bottom of the average range for word recognition and his other academic abilities were below average. Based on his review of the medical records, he noted that all the doctors agree Employee has chronic pain problems. He opined that Dr. Vaught's restrictions would limit Employee to sedentary work, but that Employee does not have transferable skills to a sedentary level of employment. Mr. Dolan opined that due to Employee's uncontrolled pain, he was unlikely to be hired for a sedentary job or be able to tolerate a normal work schedule if hired. After considering Employee's age, education, tests results, work history and physical restrictions, he concluded Employee no longer had access to a reasonably stable labor market.

Mr. Dolan acknowledged on cross-examination that he did not review the report of Dr. Volarich as part of his evaluation.

The only issue for consideration in this case is whether the Second Injury Fund is liable for permanent and total disability.

"The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." Section 287.808 RSMo.

Section 287.800 RSMo mandates that that the provisions of Chapter 287 be strictly construed.

Section 287.020.6 RSMo provides as follows:

The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment.

Kowalski v M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 363, 367 (Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483 (Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831,834 (Mo.App.1993).

The question of whether a claimant is totally and permanently disabled is "not exclusively a medical question" and the Commission "need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence." Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 802

(Mo.App.W.D.2011). The Commission may even rely on testimony from the claimant himself. See Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App.S.D.2003). "The testimony of ... lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." Id.

Permanent partial disability is defined by Section 287.190.6(1) as "a disability that is permanent in nature and partial in degree. ..."

After considering the credible testimony of Employee, the stipulation for compromise settlement, the medical records, and medical expert opinions, I find Employee has a permanent partial disability of 12.5 % of the body as a whole attributable to the February 9, 2016 injury. I further find the evidence supports that Employee is permanently and totally disabled.

Employee's primary injury occurred after January 1, 2014; therefore, his burden of proof for a compensable claim against the Second Injury Fund is set forth in Section 287.220.3 RSMo, Supp. 2013. See Cosby v. Treasurer of the State of Mo as Custodian of the Second Injury Fund, 579 S.W.3d 202, (Mo. banc, June 25, 2019.) The test for finding the Second Injury Fund liable for permanent total disability under Section 287.220.3 RSMo, is as follows:

(1) All claims against the second injury fund for injuries occurring after January 1, 2014 and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014 shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after the effective date of this section 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; . . .

(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.

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250 .

After considering Employee's credible testimony, my review of the medical records, the prior stipulations for settlement, and the opinions of Dr. Volarich, I find Employee has the following medically documented preexisting disabilities that were a direct result of a compensable injury as defined in section 287.020:

- September 13, 2010 injury: 32.5 % body as a whole referable to the lumbar spine (130 weeks); 30 % of the left elbow ( 63 weeks) and a 10 % load factor ( 19.3 weeks)

- July 16, 2007 injury: 17.5 % of the left elbow ( 36.75 weeks)

I further find Employee has the following medically documented preexisting disability that does not meet the criteria set forth in Section 287.220.3 RSMo:

- 10 % body as a whole referable to depression/anxiety ( 40 weeks).

Although Employee's preexisting depression/anxiety was disabling, it is not considered as part of the analysis for Second Injury Fund liability.

I find that Employee's 2010 lumbar spine and left elbow disability meets the 50 week minimum set forth in Section 287.220.3(2)(a)a RSMo. I find that Employee's 2007 elbow injury considered in isolation does not meet the 50 -week minimum threshold requirement. However,

our Missouri Supreme Court has acknowledged "[i]t is possible that multiple injuries can give rise to a single disability. Treasurer v. Witte, 414 S.W.3d 455, 464 (Mo. banc 2013). In Parker, the Missouri Supreme Court held that "[a]lthough section 287.220.3(2)(b) refers to the preexisting disability in the singular form - 'when combined with the preexisting disability' section $1.030^{4}$ instructs that the singular form should be interpreted to include the plural form." (emphasis added) Id. In footnote 4, the Court points out:

Although this Court held in Treasurer v. Witte, 414 S.W.3d 455, 463-64 (Mo. banc 2013), that claimants could not stack multiple disabilities to meet the threshold for Fund liability, Witte predates the 2013 amendments and, therefore, no longer applies.

If Section 287.220.3(2)(b) is to be interpreted to include the plural form, then it follows that Section 287.220.3(2)(a) a ii, should also be interpreted to include the plural form. Therefore, the 50 -week minimum can be reached with not only "a compensable injury", but "compensable injuries" as defined in section 287.020. I find that Employee's 2007 and 2010 compensable work-related injuries resulted in a preexisting disability of 47.5 % at the 210 -week level for a total of 99.75 weeks, and this disability exceeds the 50 -week minimum threshold requirement.

I find that the combination of Employee's primary injury and preexisting qualifying disabilities (2010 back disability and 2007/2010 left elbow disability) result in permanent total disability. In support of this finding, I rely upon Employee's credible testimony and the credible opinions of Dr. Volarich and Mr. Dolan. Dr. Volarich opined that Employee was permanently and totally disabled due to a combination of his primary injury and preexisting disabilities, which Dr. Volarich identified as the 2010 back disability and 2007/2010 left elbow disability. Mr. Dolan opined Employee was permanently and totally disabled based upon his age, education, test results, work history, chronic pain, and restrictions recommended by Dr. Vaught referable to Employee's back. I find the Second Injury Fund is liable for permanent total disability benefits.

Employee reached maximum medical improvement on August 16, 2016. EmployerInsurer's liability for the 12.5 % permanent partial disability to the employee's body as a whole attributable to the February 9, 2016 accident equals 50 weeks of compensation. The permanent partial disability benefits, if paid by the week, would therefore have commenced on August 17, 2016, and would have continued for 50 weeks through August 1, 2017. Those permanent partial disability benefits would have been payable at the rate of $\ 464.58 per week.

Employee's rate of compensation for permanent total disability is $\ 886.92, which is $\ 422.34 higher than the permanent partial disability rate. The Second Injury Fund is therefore responsible for paying the difference between the permanent total disability rate and the permanent partial disability rate starting on August 17, 2016, and ending on August 1, 2017 (last

[^0]

[^0]: ${ }^{4}$ Section 1.020.2 RSMo provides, "When any subject matter, party or person is described or referred to by words importing the singular number or the masculine gender, several matters and persons, and females as well as males, and bodies corporate as well as individuals, are included."

**Injury No. 16-027102**

day attributable to the 50 weeks of permanent partial disability benefits); and thereafter, commencing on August 2, 2017, the Second Injury Fund is responsible for paying the full permanent total disability benefits at the rate of $886.92 per week.

The Second Injury Fund is therefore directed to pay to Employee the sum of $422.34 per week commencing on August 17, 2016, and ending on August 1, 2017. Thereafter, commencing on August 2, 2017, the Second Injury Fund is directed to pay to the employee the sum of $886.92 per week for permanent total disability; and said weekly payments shall be payable for the lifetime of the employee pursuant to Section 287.200.1 RSMo, unless such payments are suspended during a time when the employee is restored to his regular job or its equivalent as provided in Section 287.200.3 RSMo.

Thomas W. Collins, III, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

I certify that on May 03, 2022, 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: __________________________


Amy L. Young

Administrative Law Judge

Division of Workers' Compensation