Chambers v. Treasurer of Mo.
| Decision Date | 23 November 2021 |
| Docket Number | No. SD 37036,SD 37036 |
| Citation | 637 S.W.3d 681 |
| Parties | James D. CHAMBERS, Appellant, v. TREASURER OF MISSOURI as Custodian of the Second Injury Fund, Respondent. |
| Court | Missouri Court of Appeals |
Appellant's attorneys: Aaron Hadlow and Scott Pettit of Aurora, MO.
Respondent's attorneys: Eric S. Schmitt, Attorney General, and Sheila B. Skulborstad, Assistant Attorney General, of Springfield, MO.
James Chambers pursued permanent total disability benefits from the Second Injury Fund while working nine-hour days, seven days a week for five and a half months of the year. Chambers claims the Commission erred in concluding he is employable in the open labor market and that he is not permanently and totally disabled. We affirm.
After Chambers stopped attending high school, he worked as a physical laborer and later as a commercial truck and bus driver. During this time he had two surgeries on his spine and ongoing back pain, for which he was prescribed medication. In 2009, the administrative law judge ("ALJ") approved stipulations for compromise settlement entered by Chambers, his then-employer, and the Second Injury Fund ("Fund") for permanent partial disability of the body as a whole. In January 2008, Chambers was released to work without restrictions but with a recommendation that he pursue sedentary work rather than manual labor.
In 2009, when he was about 40 years old, Chambers began working part-time, seasonally, for a company that operates a campground and provides river float trips (hereinafter the "campground and river outfitter"). His duties included shuttling customers upriver by bus and lifting and carrying canoes. Three years later, Chambers began working full-time for this company as a campground manager for five and a half months of the year. He worked nine-hour days, seven days a week. His duties included occasional shuttling and lifting as before, plus supervision of employees, operation of a tractor and a backhoe, and repair of electrical boxes low to the ground.
During the off-season, Chambers drew unemployment benefits. Each year in the spring he was rehired and resumed full-time work.
In addition to his work for the campground and river outfitter, Chambers also worked as a school bus driver from 2012 until 2014, then as a maintenance person for the City of Galena ("City") from 2014 until 2016. His maintenance duties included activities such as lawnmowing, weed-eating, patching roads, salting roads in the winter, installing road signs, and installing and replacing utility meters.
In November 2015, Chambers was working for the City when the truck he was driving lurched and rolled into a ditch, coming to rest on its top. Chambers strained muscles in his neck and upper back. Medication was prescribed to ease his pain. Chambers participated in several sessions of physical therapy.
In April 2016, Chambers told his treating physician that physical therapy was not helping and he was in constant pain, which was aggravated by activity. The doctor noted a discrepancy between Chambers’ subjective pain complaints and surveillance video showing him driving, bending, shoveling, and lifting a barrel into the back of a truck without difficulty. Chambers was found to have achieved maximum medical improvement and was cleared to work subject to a 40-pound lifting restriction due to his previous back surgery.
Chambers filed a claim for workers’ compensation benefits. He entered into a stipulation for compromise settlement with the City and pursued a claim against the Fund for permanent total disability benefits.
At the administrative hearing in February 2020, Chambers affirmed that even after the 2015 accident he had continued to work for the City and he had continued to work for five-and-a-half months of each year with the campground and river outfitter. He expected to work full-time for the campground and river outfitter again from mid-April through September of 2020. A vocational expert testified Chambers was gainfully employed in the open labor market and that he would be able to compete for and perform sedentary or light-level work even with a 40-pound lifting restriction.
The ALJ found Chambers was not permanently and totally disabled. His work after the 2015 accident was regular and, at times, more than full-time. Although he received accommodations at his job with the campground and river outfitter, that employer made it clear that Chambers’ employment was a job, not a favor. The ALJ found no Fund liability because Chambers was not permanently and totally disabled and there is no provision for payment of permanent partial disability under § 287.220 RSMo (2016) for cases arising after January 1, 2014. A majority of the Commission affirmed and adopted the ALJ's award of no compensation.
We review all final decisions, findings, and orders of the Commission to determine whether they are supported by competent and substantial evidence upon the whole record. Annayeva v. SAB of TSD of City of St. Louis , 597 S.W.3d 196, 198 (Mo. banc 2020). When the Commission adopts the findings of the ALJ, as here, we review those findings as if originally made by the Commission. Id. at 198 n.2. In the absence of fraud, we defer to the Commission's findings of fact, witness credibility determinations, and weighing of conflicting evidence. Id. at 198.
The Fund was created by statute in 1943. Treasurer of State-Custodian of Second Injury Fund v. Witte , 414 S.W.3d 455, 460 (Mo. banc 2013) (superseded by subsequent statutory amendments in other respects). "The purpose of the fund is ‘to encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury.’ " Id. (). "Any disability attributable to the combination of the work injury with preexisting disabilities is compensated, if at all, by the fund." Id. (citing § 287.220.1 RSMo Cum. Supp. (2012)). "In summary, ‘the Second Injury Fund compensates workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury.’ " Atchison v. Missouri State Treasurer , 603 S.W.3d 719, 722 (Mo. App. 2020) (quoting Payne v. Treasurer of State, Custodian of Second Injury Fund , 417 S.W.3d 834, 847 (Mo. App. 2014) ).
"The term ‘total disability’ ... shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." Section 287.020.6 RSMo (2000). " ‘The determination of whether a claimant is permanently and totally disabled is based upon the claimant's ability to compete in the open labor market.’ " Atchison , 603 S.W.3d at 724 (quoting Lewis v. Treasurer of State , 435 S.W.3d 144, 159 (Mo. App. 2014) ); Brashers v. Treasurer of State as Custodian of Second Injury Fund , 442 S.W.3d 152, 155 (Mo. App. 2014) ). " ‘The primary determination is whether an employer can reasonably be expected to hire the employee, given his or her present physical condition, and reasonably expect that employee to successfully perform the work.’ " Id. (quoting Lewis , 435 S.W.3d at 159 ). The extent of a claimant's disability is a fact issue within the special province of the Commission. Jefferson City Country Club v. Pace , 500 S.W.3d 305, 323 (Mo. App. 2016).
"[Chambers], as the workers’ compensation claimant, bears the burden of proof to show that [his] injury was compensable in workers’ compensation." Johme v. St. John's Mercy Healthcare , 366 S.W.3d 504, 509 (Mo. banc 2012). "[Chambers’] overall burden of proof is made up of two separate burdens, the burden of persuasion and the burden of production." Annayeva , 597 S.W.3d at 200 n.8. The Commission is free to believe or disbelieve any evidence, and it is irrelevant that there is evidence supportive of a contrary finding. Guinn v. Treasurer of State , 600 S.W.3d 874,...
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