Brashers v. Treasurer of Mo.
| Decision Date | 22 July 2014 |
| Docket Number | No. SD 32872.,SD 32872. |
| Citation | 442 S.W.3d 152 |
| Parties | Carolyn Martha BRASHERS, Claimant–Respondent, v. TREASURER OF the STATE of Missouri AS CUSTODIAN OF the SECOND INJURY FUND, Respondent–Appellant. |
| Court | Missouri Court of Appeals |
Cara L. Harris, Springfield, MO, for Appellant.
Darren J. Morrison, Springfield, MO, for Respondent.
The Treasurer of the State of Missouri as Custodian for the Second Injury Fund (“the Fund”) appeals the award of the Labor and Industrial Relations Commission (“the Commission”) that found Carolyn Martha Brashers (“Claimant”) entitled to receive permanent, total disability benefits from the Fund. Claimant was working as a bus monitor for Springfield Public Schools (“SPS”) when she was injured in a fall at work on January 8, 2009 (“the work injury”).
The Fund first contends that the award was not supported by substantial and competent evidence based on the Commission's finding that Claimant was “only permanently and partially disabled prior to the work injury” because the whole record shows that Claimant was already permanently and totally disabled (“PTD”) at the time she suffered the work injury. Alternatively, the Fund claims that if the Commission correctly found that Claimant's earlier continued employment constituted evidence that she was not PTD before the work injury, then Claimant was not rendered PTD by “a combination of [the] work injury ... and her preexisting disabilities” because she “returned to her regular job” following the work injury.
Finding no merit in either assertion, we affirm.
The language of the statute “applies to a claimant who has a ‘preexisting permanent partial disability,’ not to claimants who are already [PTD].” Schussler, 393 S.W.3d at 98. “The determination of whether a claimant is [PTD] is based upon the claimant's ability to compete in the open labor market[,]” Blackshear v. Adecco, 420 S.W.3d 678, 681 (Mo.App. E.D.2014), and “[w]hen [a claimant] became PTD [is] a fact issue within the special province of the Commission.” Stewart v. Zweifel, 419 S.W.3d 915, 917 (Mo.App.S.D.2014) (citing Schussler, 393 S.W.3d at 96 ).
Article V, section 18 of the Missouri Constitution provides that we review the Commission's award to determine whether the award is “supported by competent and substantial evidence upon the whole record.” See also Hampton, 121 S.W.3d at 222. “This court will not disturb the decision of the Commission on appeal unless it acted without or beyond its power, the award was procured by fraud, the facts do not support the award, or the award is not supported by sufficient competent evidence in the record.” Palmentere Bros. Cartage Serv. v. Wright, 410 S.W.3d 685, 691 (Mo.App.W.D.2013) ; see also section 287.495.1. Hampton, 121 S.W.3d at 223. “When the record can support either of two opposed fact findings, the Commission's determination binds this court.” Stewart, 419 S.W.3d at 917.
The Fund agrees that “[t]he question before this Court is one of a factual nature[.]” As a result, we “determine whether the Commission reasonably could have made its findings and reached its result based upon all of the evidence before it.” Fitzwater v. Dept. of Pub. Safety, 198 S.W.3d 623, 627 (Mo.App.W.D.2006). “In making this determination, [w]e do not reweigh the evidence; the Commission is the judge of the weight to be given to conflicting evidence and the credibility of the witnesses.” Palmentere, 410 S.W.3d at 691 (internal quotation and citation omitted).
The evidence consisted of a joint factual stipulation that was read into the record by the Administrative Law Judge (“ALJ”), plus exhibits consisting of depositions, medical records, and other documents.
Claimant was working for SPS “subject to the Missouri Workers' Compensation Law” at the time of the work injury, and the work injury “arose out of and in the course and scope of employment.” “[C]laimant reached maximum medical improvement on December 12, 2009[.]”
Claimant provided the following testimony. In 1992, Claimant applied for (and eventually received) Social Security benefits based upon disability associated with “Moyamoya”—a condition which caused strokes
, followed by seizures and balance problems. Before the work injury, Claimant had undergone various surgeries, including “a neck surgery and fusion[,]” “carpal tunnel releases on both ... hands[,]” “a rotator cuff repair on [her] right shoulder [,]” “arthroscopic surgeries ” on both knees, and one knee replacement. Claimant described various medical conditions that she had in addition to Moyamoya, including depression, bilateral ulnar neuropathy, osteoarthritis, and fibromyalgia.
Claimant was not employed again until sometime around 2006–2007, when she went to work for a dress shop, where she worked eight hours per week “at the most.” Hanging clothes and pinning pants on hangers caused her some pain, but she ultimately left the job because she was not “getting enough hours, and ... [she] learned that the ... school system was hiring.”
Before going to work for SPS in March 2007, Claimant was “limited in ... repetitive upper extremity activities” and in pinching and grasping; she had difficulty with crawling and squatting; she could kneel only with a cushion beneath her knees; and she had difficulty climbing stairs. Because of these limitations, and the fact that she could not tolerate prolonged standing and walking, Claimant was “limited to a sedentary type job[.]”
As a bus monitor, Claimant rode with special needs children and assisted them while they were on the bus. Bus monitors were given a choice as to the number of routes that they wished to work. Between March 2007 and May 2007, she worked about six-and-a-half hours per day, and she had breaks between the morning, noon, and afternoon routes. Claimant testified that during summer school in 2007, she worked four hours a day. In August 2007, she eliminated her noon route because it was “too hard” on her, and this change left her working approximately 4–5 hours per day on the morning and afternoon bus routes.
Claimant said the work injury occurred when she was walking toward a student and “tripped over an uneven sidewalk, and ... went down face first.” The fall left her with a broken nose
and tooth, and it also hurt her low back. As a result of the work injury, Claimant “cannot sit for very long periods of time, and [she has] trouble walking.” The trouble “starts in [her] lower back, [her] sciatic, and it goes down both [of her] legs, and [her] legs and feet get numb.” Claimant volunteered that her “own doctor, Dr. Wong,” did not recommend further treatment for her numbness and said Claimant did not have the pain running from her low back to her feet or the numbness in her feet before the work injury.
In February 2009, Claimant returned to work at SPS on “light duty” in the office, and she returned to her work on a bus the following month, working about five hours a day. Claimant did not work that summer because she “was starting to hurt.” She also had another knee replacement that summer. Claimant returned to work six weeks after the knee replacement.
Claimant recalled that when she went back for the 2009–2010 school year, she “was hurting a lot more than what [she] had before[,]” and she was “having trouble getting on and off the bus[.]” Claimant “was really having trouble sitting on the bus, and whenever [she would] take steps down to get off the bus ... [she felt] like [her legs] were going to go out from underneath [her].” She had pain that started in her low back and went down both hips to both feet. Her legs and feet would “go numb with the pain.” Claimant said she “was starting to hurt very, very bad with fibromyalgia
and degenerative bones in [her] back, [and] in [her] hips. It was just getting harder and harder for [her] to do” her job.
At the time of her deposition (June 2010), Claimant was able to sit for about 30 minutes before needing to stand up. Before the work injury, she “was able to sit for the whole two hours on the bus.”
Claimant was “terminated” by SPS in December 2009. Her understanding was that SPS had received a report from “Dr. Koprivica” that “said that [she] was not employable and that [she] should not be employed.” She had intended to work until the end of that school year and then not work anymore. Claimant had not worked after her job at SPS ended, and she had no plans to get another job.
A “Stipulation for Compromise Settlement” executed by Claimant and attorneys for Claimant and SPS was received into evidence. It stated that the settlement...
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