414 S.W.3d 455 (Mo. 2013), SC 92834, Treasurer of State-Custodian of Second Injury Fund v. Witte

Docket Nº:SC 92834, SC 92867, SC 92842, SC 92850.
Citation:414 S.W.3d 455
Opinion Judge:PATRICIA BRECKENRIDGE, Judge.
Party Name:TREASURER OF the STATE of Missouri-CUSTODIAN of the SECOND INJURY FUND, Appellant, v. James WITTE, Respondent. Joseph Salviccio, Respondent, v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Appellant. William Dyson, Respondent, v. Treasurer of the State of Missouri as Custodian of Second Injury Fund, Appellant. Eric Bu
Attorney:Douglas B. Salsbury, The Miller/Salsbury Law Firm, Eureka, for James Witte. Cara L. Harris, Kristin M. Frazier, Rochelle L. Reeves and Daniel A. Cunningham, Attorney General's Offices, Jefferson City, Springfield and St. Louis, for Treasurer of the State of Missouri as Custodian of Second Injury ...
Judge Panel:RUSSELL, C.J., FISCHER, STITH, DRAPER and TEITELMAN, JJ., concur. WILSON, J., not participating.
Case Date:November 12, 2013
Court:Supreme Court of Missouri

Page 455

414 S.W.3d 455 (Mo. 2013)

TREASURER OF the STATE of Missouri-CUSTODIAN of the SECOND INJURY FUND, Appellant,

v.

James WITTE, Respondent.

Joseph Salviccio, Respondent,

v.

Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Appellant.

William Dyson, Respondent,

v.

Treasurer of the State of Missouri as Custodian of Second Injury Fund, Appellant.

Eric Buhlinger, Respondent,

v.

Treasurer of Missouri as Custodian of Second Injury Fund, Appellant.

Nos. SC 92834, SC 92867, SC 92842, SC 92850.

Supreme Court of Missouri, En Banc.

November 12, 2013

Page 456

[Copyrighted Material Omitted]

Page 457

Douglas B. Salsbury, The Miller/Salsbury Law Firm, Eureka, for James Witte.

Cara L. Harris, Kristin M. Frazier, Rochelle L. Reeves and Daniel A. Cunningham, Attorney General's Offices, Jefferson City, Springfield and St. Louis, for Treasurer of the State of Missouri as Custodian of Second Injury Fund.

Elizabeth J. Ituarte, Kriegel & Ituarte PC, St. Louis, for Joseph Salviccio.

James S. Haupt, St. Louis, for William Dyson.

Dean L. Christianson, Schuchat, Cook & Werner, St. Louis, for Eric Buhlinger.

PATRICIA BRECKENRIDGE, Judge.

The treasurer of the State of Missouri as custodian of the second injury fund (" the fund" ) appeals four separate decisions of the labor and industrial relations commission that determined the fund was liable for compensation to injured claimants. The fund claims that the commission misinterpreted and misapplied the law in those decisions by combining or " stacking" injuries to meet the statutory thresholds in section 287.220.1 1 that trigger the fund's liability and by considering injuries that did not meet the statutory thresholds to calculate the extent of its liability. After

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opinions by the court of appeals, this Court granted transfer due to the general interest and importance of the issues involved. Mo. Const. art. V, sec. 10. Because the cases all require interpretation of section 287.220.1, they are consolidated for opinion. This Court finds that the commission misapplied section 287.220.1 in triggering the fund's liability by combining preexisting permanent partial disabilities to meet the statutory thresholds. Nonetheless, Mr. Salviccio, Mr. Dyson, and Mr. Buhlinger each had a preexisting injury that met the thresholds, and this Court affirms the commission's awards in those cases. Mr. Witte did not have a preexisting disability that met the thresholds, and this Court reverses the commission's award in his case.

Factual and Procedural History

The facts are undisputed in each case, and are as follows:

Witte v. Treasurer

In April 2007, James D. Witte slipped and fell while at work, breaking his right leg and hip. He filed a claim for workers' compensation benefits against his employer, Show-Me Livestock Co-op., Inc., and the fund in July 2007. Mr. Witte and Show-Me Livestock settled his claim by stipulating that he had a permanent partial disability of 20 percent of the body as a whole, referable to the lumbar spine, and 30 percent of the right hip. His claim against the fund, however, was disputed. At a hearing before an administrative law judge, a medical expert testified that Mr. Witte had preexisting disabilities of diabetes, depression, anxiety, a spastic colon, back problems, a leg injury from a bike accident, and an eye condition that was surgically corrected.

The administrative law judge (ALJ) concluded that Mr. Witte " failed to sustain his burden of proof that he is entitled to permanent partial disability benefits" from the fund. The ALJ found that although Mr. Witte had multiple preexisting disabilities, none of them were significant enough to constitute a hindrance or obstacle to employment or to reach the thresholds set out in section 287.220.1.

Mr. Witte filed an application for review with the commission, which found that Mr. Witte suffered preexisting permanent partial disabilities of 10 percent of the body as a whole, referable to diabetes; 10 percent of the body as a whole, referable to gastrointestinal issues; 10 percent of the body as a whole, referable to psychiatric problems; 5 percent of the body as a whole, referable to his lumbar spine; and 10 percent of his right leg. The commission concluded that, instead of requiring each condition to meet the minimum thresholds set out in section 287.220.1, the ALJ should have determined whether Mr. Witte's " overall preexisting permanent partial disability" satisfied the 50-week minimum threshold. After converting all of Mr. Witte's preexisting disabilities into weeks of compensation, the commission combined them and determined his " overall preexisting permanent partial disability" to be 160.7 weeks, well above the 50-week threshold. It awarded Mr. Witte $8,478.55 of compensation from the fund.

Salviccio v. Treasurer

In November 2008, Joseph Salviccio injured his left knee while employed with Western Supplies Company. Following surgery to repair his knee, he filed a workers' compensation claim against Western Supplies and the fund. Mr. Salviccio's claim against Western Supplies was settled for 20 percent permanent partial disability of the left knee.

An ALJ heard his case to determine the fund's liability and made the following conclusions

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concerning his preexisting disabilities: Mr. Salviccio's little finger on his left hand was permanently injured in 1995 during a work-related accident; he suffered ventral hernias in 1999 and 2005; and he was diagnosed with diabetes in 1995. Despite expert testimony of higher ratings, the ALJ found that the disability to Mr. Salviccio's little finger did not rise to 15 percent permanent partial disability and that neither his diabetes nor his hernias warrant 50 weeks of compensation. The AJL, therefore, determined that the fund was not liable for compensation because none of Mr. Salviccio's preexisting permanent partial disabilities rose to the level necessary to satisfy the statutory thresholds outlined in section 287.220.1.

Upon Mr. Salviccio's application for review, the commission concluded the ALJ's ratings of Mr. Salviccio's preexisting injuries were not supported by the evidence presented. It determined the evidence supported preexisting permanent partial disabilities of 50 percent of the little finger; 12.5 percent of the body as a whole, referable to diabetes; 4 percent of the body as a whole, referable to the 1999 hernia; and 3.5 percent of the body as a whole, referable to the 2005 hernia. Because Mr. Salviccio claimed multiple preexisting disabilities, the commission concluded that it was necessary to convert all of his preexisting disabilities to weeks of compensation and combine them to determine if they collectively met the statutory thresholds. After combining all of his preexisting disabilities, it found that Mr. Salviccio had 91 weeks of compensation, surpassing the 50-week threshold, and determined that the fund was liable. The commission awarded Mr. Salviccio $4,977.32 of compensation from the fund.

Dyson v. Treasurer

In June 2008, William Dyson injured his right shoulder while at work and filed a workers' compensation claim against his employer, D & D Distributors, and the fund. He settled his claim with D & D Distributors for 25 percent permanent partial disability of the right shoulder. Five months prior to his shoulder injury, Mr. Dyson suffered a work-related neck injury 2 and he also injured his right ankle in 2001.

An ALJ determined that Mr. Dyson was entitled to workers' compensation benefits from the fund after concluding that his neck injury, with a 15 percent permanent partial disability of the body as a whole, met the minimum thresholds set forth in section 287.220.1. The ALJ also found that Mr. Dyson's disability due to his right ankle injury was not sufficient to meet the same thresholds.

After Mr. Dyson applied for review, the commission determined that his preexisting ankle injury should have been included in determining the fund's liability. It found that the injury resulted in 7.5 percent permanent partial disability of that extremity, converted that percentage to its equivalent number of weeks, and added it to Mr. Dyson's other injuries to determine that he met the thresholds for all of his injuries. Accordingly, the commission held the fund liable for all of his injuries and awarded Mr. Dyson $5,041.96 of compensation from the fund.

Buhlinger v. Treasurer

In August 2008, Eric R. Buhlinger worked for Bryant Company as a laborer and a driver when the skid loader on which he was working " bucked," causing him to hit his head on a crossbar and lose consciousness.

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As a result of the accident, Mr. Buhlinger suffered a concussion and sustained injuries to his neck, back, and left elbow. He filed a workers' compensation claim against Bryant Company and the fund. The claim against Bryant Company was settled for 27.5 percent of the body as a whole, referable to the neck; 5 percent of the body as a whole, referable to the concussion; and 5 percent of the left elbow.

An ALJ heard Mr. Buhlinger's case to determine the fund's liability and found that, from his last injury, Mr. Buhlinger sustained permanent partial in the same amounts as the settlement. During the hearing, there was testimony about Mr. Buhlinger's prior work-related injury to his left foot and ankle that occurred in 1990 or 1991. With regard to the prior injury, the ALJ found that Mr. Buhlinger had a preexisting permanent partial disability of 17.5 percent of the left ankle. The ALJ concluded the fund was liable because Mr. Buhlinger's permanent partial disabilities from the last injury, collectively, and preexisting permanent partial disability met the thresholds set forth in section 287.220.1. The ALJ awarded Mr. Buhlinger $6,782.10 of compensation from the fund.

The fund filed an application for review of the...

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