We employ a four-part test to determine the liabilities of the employer and second injury fund. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App.W.D.1999). We first consider the liability of the employer in isolation by determining the degree of the employee's disability due to the last injury.
This governing principle for PTD benefit analysis has also been enunciated and recognized by the Western and Southern Districts. In Kizior v. Trans World Airlines, 5 S.W.3d 195, 201 (Mo.App. W.D.1999) (overruled on other grounds, Hampton, 121 S.W.3d 220), the Western District reviewed an appeal by an employer asserting the Commission erred in determining the employer's liability for the primary injury because, in part, the disability ratings for the claimant's preexisting and primary injury used by the Commission in finding the claimant was permanently totally disabled added up to more than 100%. The court rejected the employer's argument, noting PTD benefits are calculated by determining the disability resulting from the last injury alone (for which the employer is responsible), then determining the compensation due to the employee for PTD, and then determining Fund liability by subtracting the total compensation due by the amount owed by employer.
"I find Dr. Belz opinions to be most credible with regard to permanent disability and his statement . . . that Claimant is permanently totally disabled from the June 21, 1996, injury, without regard to Claimant's prior surgeries or medical conditions, are both plausible and physically possible. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo.App.W.D. 1999). The problems the Claimant suffers from that make her permanently and totally disabled arise from the injury of June 21, 1996, alone.
We must first determine whether the whole record, viewed in the light most favorable to the award of the Commission, contains sufficient competent and substantial evidence to support the Commission's award. Kizior v. TransWorld Airlines, 5 S.W.3d 195, 199 (Mo.App. 1999). If we find that it does, then we make a determination as to whether the award is against the overwhelming weight of the evidence.
.3d 666 (Mo. App. 2000); Brockmeyer v. Stieferman Bros. Van Storage, 34 S.W.3d 236 (Mo. App. 2000); Irving v. Missouri State Treasurer, 35 S.W.3d 441 (Mo. App. 2000); Cuba v. Jon Thomas Salons, Inc., 33 S.W.3d 542 (Mo. App. 2000); Smith v. Richardson Bros. Roofing, 32 S.W.3d 568 (Mo. App. 2000); Wilmeth v. TMI, Inc., 26 S.W.3d 476 (Mo. App. 2000); Deckard v. O'Reilly Automotive, Inc., 31 S.W.3d 6 (Mo. App. 2000); Boyles v. USA Rebar Placement, Inc., 26 S.W.3d 418 (Mo. App. 2000); DiMaggio v. Johnston Audio/D M Sound, 19 S.W.3d 185 (Mo. App. 2000); Soos v. Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000); Higgins v. D.W.F. Wholesale Florists, 14 S.W.3d 286 (Mo. App. 2000); Harp v. Malone Freight Lines, Inc., 16 S.W.3d 667 (Mo. App. 2000); Maxon v. Leggett Platt, 9 S.W.3d 725 (Mo. App. 2000); Ransburg v. Great Plains Drilling, 22 S.W.3d 726 (Mo. App. 2000); Kuczwara v. Continental Baking Co., 24 S.W.3d 712 (Mo. App. 1999); Tidwell v. Kloster Co., 8 S.W.3d 585 (Mo. App. 1999); Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo. App. 1999); Seaton v. Cabool Lease, Inc., 7 S.W.3d 501 (Mo. App. 1999); Loyd v. Ozark Elec. Co-op., Inc., 4 S.W.3d 579 (Mo. App. 1999); Willeford v. Lester E. Cox Medical Center, 3 S.W.3d 872 (Mo. App. 1999); Conley v. Treasurer of Missouri, 999 S.W.2d 269 (Mo. App. 1999); Reese v. Gary Roger Link, Inc., 5 S.W.3d 522 (Mo. App. 1999); Mickey v. City Wide Maintenance, 996 S.W.2d 144 (Mo. App. 1999); Mid-Missouri Mental Health Center v. Polston, 995 S.W.2d 527 (Mo. App. 1999); Gausling v. United Industries, 998 S.W.2d 133 (Mo. App. 1999); King v. A.P. Green Industries, Inc., 991 S.W.2d 223 (Mo. App. 1999); Pemberton v. 3M Co., 992 S.W.2d 365 (Mo. App. 1999); Williams v. DePaul Health Center, 996 S.W.2d 619 (Mo. App. 1999); Decker v. National Accounts Payable Auditors, 993 S.W.2d 518 (Mo. App. 1999); Kaderly v. Race Brothers Farm Supply, 993 S.W.2d 512 (Mo. App. 1999); Jacobs v. City of Jefferson, 991 S.W.2d 693 (Mo. App. 1999); Davis v. General Elec. Co., 991 S.W.2d 699 (Mo. App. 1999); Reese v.
Section 287.220 provides the methodology for calculating disability where permanent disability results and there was a previous disability. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D.1999). As described in Kizior, there are four steps in calculating the employee's compensation and the source of liability:
The Fund attorney's cross-examination questions required Dr. Cohen to consider Birdsong's last injury in isolation and state whether this injury, in and of itself, was totally disabling. See Lockman v. Citizen's Memorial Hosp., 140 S.W.3d 214, 218 (Mo.App. 2004) (first step in the analysis is to consider employer's liability in isolation and determine what degree of disability would have resulted from the last injury had there been no preexisting disability); Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. 1999) (same holding). Thus, these questions properly sought Dr. Cohen's expert medical opinion on the issue determinative of the Fund's liability, viz.: whether Birdsong was still permanently and totally disabled without considering the preexisting injury to his lumbar spine.
The Fund is liable for that portion. See Kizior v. Trans World Airlines, 5 S.W.3d 195, 201 (Mo. App. 1999); see also § 287.220.1. In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself.
(1) The employer's liability is considered in isolation — "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability;" (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App.W.D. 1999) (quoting § 287.220.1). Nance argues that the Commission erred in each step of its calculations, resulting in an award against the Fund that was lower than the evidence would support.
Stewart, 398 S.W.2d at 854. Accordingly, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. Kizior v. Trans World Airlines, 5 S.W.3d 195, 201 (Mo.App.W.D. 1999); Roller, 935 S.W.2d at 743-44. If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount.