455 S.W.3d 494 (Mo.App. W.D. 2015), WD77607, Gleason v. Treasurer of the State

Docket Nº:WD77607
Citation:455 S.W.3d 494
Opinion Judge:Cynthia L. Martin, Judge
Party Name:EDWARD GLEASON, SR., Appellant, v. TREASURER OF THE STATE OF MISSOURI - CUSTODIAN OF THE SECOND INJURY FUND, Respondent
Attorney:Edward Gleason, Sr., Appellant, Pro se. Kimberley Cox Fournier, Kansas City, MO, for respondent.
Judge Panel:Before Division One: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Mark D. Pfeiffer, Judge. All concur.
Case Date:March 03, 2015
Court:Court of Appeals of Missouri
 
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Page 494

455 S.W.3d 494 (Mo.App. W.D. 2015)

EDWARD GLEASON, SR., Appellant,

v.

TREASURER OF THE STATE OF MISSOURI - CUSTODIAN OF THE SECOND INJURY FUND, Respondent

WD77607

Court of Appeals of Missouri, Western District, First Division

March 3, 2015

Appeal from the Labor and Industrial Relations Commission.

Edward Gleason, Sr., Appellant, Pro se.

Kimberley Cox Fournier, Kansas City, MO, for respondent.

Before Division One: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Mark D. Pfeiffer, Judge. All concur.

OPINION

Cynthia L. Martin, Judge

Page 495

Edward Gleason, Sr. (" Gleason" ), who appears pro se, appeals from the Labor and Industrial Relations Commission's (" Commission" ) decision denying his claim for permanent disability benefits from the Second Injury Fund following Gleason's 20- to 25-foot fall from the top of a railcar he was inspecting. The Commission concluded that Gleason's inability to explain why he fell was " fatal to [his] claim," negating, as a matter of law, his ability to prove that his injuries did not come from a hazard or risk unrelated to his employment and as to which he was

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equally exposed in normal nonemployment life. Because the Commission erroneously declared and applied the law, we reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural History

Ceva Logistics employed Gleason as a transportation coordinator. Ceva Logistics works with Ford Motor Company to deliver new vehicles throughout the United States and Mexico. Gleason worked in a supervisory position over a crew of five to seven employees. He testified:

We would load [the vehicles] on trains and secure them down . . . . [I]t could be five railroad cars or ten railroad cars of trains which would generally be 75, 80 or 100 some new cars . . . . [T]hen I would go up [onto the railcars] and inspect and make sure everything was right and then we would ship it off.

Gleason was employed in that capacity from February 2007 to November 2007.

On August 5, 2007, Gleason was walking atop one of the railcars conducting an inspection when he fell approximately 20 to 25 feet to the ground. Gleason sustained injuries to his head, neck, right shoulder, clavicle, and ribs. Gleason has no memory of the circumstances leading up to the fall, the fall itself, or the three days after the fall when he was hospitalized. Accordingly, Gleason cannot explain why he fell. No one testified to having seen the fall.

Gleason filed a claim for workers' compensation against Ceva Logistics. Gleason also asserted that he was entitled to permanent total disability benefits from the Second Injury Fund.

Ceva Logistics and Gleason entered into a compromise settlement that was approved by an Administrative Law Judge (" ALJ" ). The Stipulation for Compromise Settlement stated that Gleason and Ceva Logistics agreed that " [Gleason], while in the employment of [Ceva Logistics], sustained an accidental injury/occupational disease arising out of and in the course of [Gleason's] employment and that an accidental injury/occupational disease resulted in injury to [Gleason]." Ceva Logistics agreed to pay Gleason a lump sum of $34,000 in exchange for a release based on a determination that Gleason sustained a permanent disability of 15 percent at the 232 week level on the right side, as well as 13 percent body as a whole referable to the cervical region.1 Gleason's claim against the Second Injury Fund remained pending.

An ALJ held a hearing on Gleason's claim against the Second Injury Fund. Gleason and the Second Injury Fund entered into various stipulations prior to the hearing leaving three issues to be determined: (1) " whether [Gleason] sustained an accident arising out of and in the course and scope of his employment" ; (2) " whether [Gleason] suffered any disability either permanent partial or permanent total" ; and (3) " whether the Second Injury Fund is liable to [Gleason] for any disability compensation."

After considering the evidence presented at the hearing, the ALJ issued its written decision denying Gleason's claim for benefits from the Second Injury Fund. The ALJ concluded that Gleason did not meet his burden of proving that he suffered a work injury on August 5, 2007, in that there was no evidence presented regarding the cause of Gleason's fall. The ALJ also concluded that Gleason was employable on the open labor market after his fall from the railcar, and that his inability

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to find work resulted from a worsening cardiac condition and the effects of a stroke that occurred after Gleason's fall from the railcar.

Gleason filed an application for review with the Commission. The Commission issued its Final Award Denying Compensation, with one member dissenting. The Final Award did not incorporate the findings of the ALJ. The majority of the Commission concluded that because Gleason was unable to explain why he fell, Gleason had not met his burden to prove that " his injury did not come from a hazard or risk unrelated to his employment to which workers would be equally exposed outside of and unrelated to employment in their normal nonemployment lives." Thus, the majority concluded that Gleason failed to show that his injury arose out of and in the course of his employment with Ceva Logistics. The Commission did not address whether Gleason would otherwise have been entitled to benefits from the Second Injury Fund.

Gleason appeals.

Standard of Review

We review the findings of the Commission, not the findings of the ALJ. Smith v. Capital Region Med. Ctr., 412 S.W.3d 252, 258 (Mo. App. W.D. 2013). We may modify, reverse, remand for rehearing, or set aside the award of the Commission only if we determine that the Commission acted without or in excess of its powers, that the award was procured by fraud, that the facts found by the Commission do not support the award, or that there was not sufficient competent evidence to warrant making the award. Section 287.495.1.2

" We review the whole record to determine whether there is sufficient competent and substantial evidence to support the award or if the award is contrary to the overwhelming weight of the evidence." Smith, 412 S.W.3d at 258. " The Commission is free to believe or disbelieve any evidence, and we defer to the Commission's credibility determinations." Id. The Commission's determinations of law, however, are reviewed independently. Id.

Analysis

Although Gleason's Brief sets forth four points on appeal, the limited argument in his Brief primarily claims that the Commission erred in concluding that this fall from a great height while performing the duties of his work did not result in a compensable injury.3

" 'The Second Injury Fund compensates injured workers who are permanently . . . disabled by a combination of past disabilities and a...

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