The second injury fund appealed a finding of permanent and total disability and asserted that claimant failed to establish an actual and measurable pre-existing disability at the time of the primary injury because the prior conditions were still receiving treatment and had not reached any maximum medical improvement. The court of appeals affirmed the award. Lewis v Treasurer of the State of Mo, 2014 Mo App. Lexis 730 (June 30, 2014).
Any award of second injury fund liability requires different proof for permanent partial and permanent total according to the Court. In the context of a permanent total award, the court concluded claimant must only show that there is a prior condition that is an obstacle or hindrance to employment. There is no requirement that it reaches a statutory threshold or is measurable. Section 287.220.1 provides: "If all of Claimant's disability is from the work injury, then there is no Fund liability. However, if there is any percentage of Claimant's disability that is not attributable to the work injury, then the Fund becomes liable for the difference." The requirement to show actual and measurable disability enunciated in Messex v Sachs Electric Co., 989 S.W.2d 206 (Mo. App. 1999) applies only in the context of permanent partial awards. The claimant does not require proof a specific percentage of disability, but in this case such ratings supported the finding of a measurable disability. Claimant testified that the employer downgraded his position after 31 years demonstrated his ability to maintain the same production requirements. Claimant testified that he was unable to meet the job requirements or find alternate work.
The court describes several decisions which appear to support the Fund's defense but are distinguished as judicial "oversights" which do not appreciate a distinction between calculation of PPD and PTD.
The employer at the time of the hearing settled the primary case which involved an alleged ganglion cyst. The ALJ found the primary injury in the case resulted in 15% disability to the thumb. The treating physician gave him a full duty release.
Experts: Berkin, Poetz, Volarich, England
Panel: Sullivan, Mooney, Dowd