In Taube v. North Missouri Construction (Settled), 2011 MOWCLR LEXIS (Mo. Lab. & Ind. Rels. Comm’n Jan. 19, 2011), the Commission unanimously affirmed the decision of Administrative Law Judge Rebecca Magruder that denied permanent total disability benefits against the Missouri Second Injury Fund.In this case, the Claimant offered the opinions of Dr. Brent Koprivica and vocational expert Mary Titterington. Both Dr. Koprivica and Ms. Titterington initially opined that the employee was permanently and totally disabled due solely as a result of the employee’s primary low back injury — the employee was injured while trying to pull a telephone pole out of the ground and again when pulling a tarp that was full of dirt.
The employer then engaged the services of psychologist Patrick Caffrey who diagnosed a pre-existing learning disability. Following this diagnosis, both Dr. Koprivica and Ms. Titterington changed their opinions to say that the employee was permanently and totally disabled as a result of the combination of the primary injury and the pre-existing learning disability.
The Claimant settled his claim against the employer/insurer for 32% permanent partial disability.
The ALJ denied permanent total disability benefits against the Fund, finding Dr. Koprivica and Ms. Titterington’s initial opinions to be credible. Specifically, the judge found that the employee was permanently and totally disabled as a result of the primary injury. As such, and citing a number of cases, the judge found that the Second Injury Fund could have no liability. Rather, the employer was the only entity that could be responsible for any permanent total disability. Specifically, the ALJ cited huey v. Chrysler Corp., 34 S.W.3d 845 (Mo. Ct. App. 2000); Keysior v. TransWorld Airlines, 5 S.W.3d 195, 201 (Mo. Ct. App. 1999); Maas v. Treasurer of Missouri, 964 S.W.2d 541 (Mo. Ct. App. 1998); and Roller v. Treasurer of Missouri, 935 S.W.2d 739, 741 (Mo. Ct. App. 1996).
