Brown v. Treasurer of Missouri, 57288

Decision Date10 July 1990
Docket NumberNo. 57288,57288
Citation795 S.W.2d 479
PartiesGeorge D. BROWN, Employee/Appellant, v. TREASURER OF MISSOURI, as Custodian of the Second Injury Fund, Appellee.
CourtMissouri Court of Appeals

Kenneth A. Leeds, Clayton, for employee, appellant.

William E. Roussin, Susan Kreher Roach, Chesterfield, for appellee.

CARL R. GAERTNER, Judge.

Worker's compensation claimant, George Brown, appeals from the decision of the Labor and Industrial Relations Commission affirming the administrative law judge's denial of permanent total disability benefits from the Second Injury Fund. We reverse and remand.

At the time of the hearing Brown was sixty years old with a high school education. He had been a mechanic for twenty years prior to sustaining a back injury in 1962 which necessitated a lumbar laminectomy and additional low back surgery in 1965. Because of this injury, Brown was forced to seek less physically strenuous employment. Although continuing to experience problems with his back, he was able to work as a maintenance foreman until August 18, 1981. On that date he fell from a ladder at work reinjuring his back and severely damaging the nerves in his right foot. He has undergone five separate surgical procedures on his foot including amputation of the index toe, exostectomy to the great toe, two tarsal tunnel releases as well as extensive physical therapy and a pain management program. He continues to require the use of crutches to walk more than a short distance. His back injury was aggravated and has been progressively more painful. Standing and walking cause pain in his foot, sitting and lying down cause pain in his back. He identified seven drugs which were currently prescribed for pain and to help him sleep.

The medical evidence consisted of various hospital records and the reports of four doctors. Dr. David Stronsky, Brown's orthopedic surgeon and treating physician, concluded "it is anticipated that he will never return to work." Dr. Jerome Levy, who examined Brown in 1983 and again in 1986, reported that his condition had considerably worsened during the interim and concluded that the combination of partial disabilities of his foot and back rendered him "permanently and totally disabled for any work for which he is reasonably trained by way of education and experience." Dr. Marshall Conrad, noting that Brown's abnormal gait caused by the foot injury contributed to his back problems, concluded "I do not believe that this man is going to be able to get back to anything but the most sedentary work. This would have to be work that he could do at bench sitting and still would be able to get up and move around occasionally to alleviate his back pain." Dr. Ralph Graff examined Brown on behalf of the Second Injury Fund and reported that he had twenty-five percent permanent partial disability of the man as a whole as a result of the preexisting back condition and an additional fifteen percent due to aggravation of the back condition in the 1981 fall. Dr. Graff rated his disability as a result of the foot injury to be twenty percent permanent partial disability of the man as a whole. He concluded "it is my opinion that these conditions do not preclude Mr. Brown from working." Although examining for and reporting to the Second Injury Fund, Dr. Graff's report is silent regarding the effect upon Brown's disability of the combination of the two disabilities which he considered separately.

Brown filed a claim with the Division of Worker's Compensation seeking benefits for permanent total disability against his employer and the Second Injury Fund. He entered into a settlement agreement of his claim against the employer pursuant to which he was awarded permanent partial disability benefits for the injuries to his foot and for the aggravation of his preexisting back injury. His claim against the Second Injury Fund proceeded to hearing. The administrative law judge found:

Based on all the credible evidence as well as the claimant's own testimony and demeanor at trial, it cannot be disputed that Mr. Brown severely damaged the nerves in his right foot or that he exacerbated a preexisting back condition; however, these problems would entitle him to an award for permanent partial disability but fall short of the evidence required to establish permanent total liability against the Second Injury Fund. Accordingly, it is found that the Second Injury Fund is responsible for permanent partial disability in the amount of fifty weeks or $5,220.

In reaching this conclusion the ALJ found "significant" Brown's testimony that he could work except for residual disability to his foot and that although the 1981 accident increased his back complaints, "these increased symptoms would not have kept the employee from working...." For these reasons the ALJ rejected Brown's contention the combined effect of the two injuries "made him a permanent total against the Second Injury Fund." The ALJ made no specific finding regarding a greater degree or percentage of disability resulting from the combination of the two disabilities. This award was affirmed on appeal to the Labor and Industrial Relations Commission with one dissenting vote. Only the dissenting member wrote an opinion.

The scope of appellate review of a worker's compensation award is circumscribed by § 287.495 RSMo. 1986. Insofar as the issues presented by this appeal are concerned, we must affirm the Commission unless the facts found by the Commission do not support the...

To continue reading

Request your trial
21 cases
  • Hampton v. Big Boy Steel Erection
    • United States
    • Missouri Court of Appeals
    • 6 Mayo 2003
    ...904 S.W.2d 464, 466 (Mo.App. 1995). Nor is it required that the claimant be completely inactive or inert. Brown v. Treasurer of Missouri, 795 S.W.2d 479, 483 (Mo.App. 1990). The extent and percentage of disability sustained by an employee is a finding of fact within the special province of ......
  • Lewis v. Treasurer of State
    • United States
    • Missouri Court of Appeals
    • 30 Junio 2014
    ...to any reasonable or normal employment, it does not require that the employee be completely inactive or inert.” Brown v. Treas. of Mo., 795 S.W.2d 479, 483 (Mo.App. E.D.1990). “The central question is whether in the ordinary course of business, any employer reasonably would be expected to h......
  • Lewis v. Kansas Univ. Med. Ctr.
    • United States
    • Missouri Court of Appeals
    • 6 Diciembre 2011
    ...to any reasonable or normal employment, it does not require that the employee be completely inactive or inert.” Brown v. Treas. of Mo., 795 S.W.2d 479, 483 (Mo.App.1990). “ ‘Any employment’ means any reasonable or normal employment or occupation.” Mell v. Biebel Bros., Inc., 247 S.W.3d 26, ......
  • Gordon v. Tri-State Motor Transit Co.
    • United States
    • Missouri Court of Appeals
    • 13 Octubre 1995
    ...367 (Mo.App.E.D.1992). Total disability means the "inability to return to any reasonable or normal employment." Brown v. Treasurer of Mo., 795 S.W.2d 479, 483 (Mo.App.E.D.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled.......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT