Fletcher v. Second Injury Fund

• Decision Date: 09 April 1996
• Docket Number: No. WD,WD
• Citation: 922 S.W.2d 402
• Parties: Fred C. FLETCHER, Appellant, v. SECOND INJURY FUND, Treasurer of Missouri, Respondent. 51760.
• Court: Missouri Court of Appeals

Page 402

922 S.W.2d 402

Fred C. FLETCHER, Appellant, v. SECOND INJURY FUND, Treasurer of Missouri, Respondent.

No. WD 51760.

Missouri Court of Appeals Western District.

April 9, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 28, 1996.

Kenneth C. Hensley, Hensley & Hensley, Raymore, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, Randell Collins, Assistant Attorney General, Kansas City, for respondent.

Before ULRICH, P.J., and BRECKENRIDGE and SMITH, JJ.

ULRICH, Presiding Judge.

Mr. Fletcher appeals the order of the Labor and Industrial Relations Commission adopting the administrative law judge's finding of partial permanent disability and determining that Section 287.220 RSMo 1993 should be applied retroactively. He claims the commission erred 1) in applying section 287.220.1 RSMo retroactively to his claim; 2) in applying the minimum standard set forth in section 287.220.1 RSMo to the second injury alone; and 3) in denying an award of permanent total disability.

The judgment is affirmed in part, reversed in part and remanded.

Mr. Fletcher suffered his first work related injury on November 21, 1986, while working at a golf course. He sustained a herniated disk at the L4-5 disk interspace which required surgery. Dr. Lowery Jones released Mr. Fletcher back to work April of 1990 with a permanent partial rating of 22% of the whole body. Mr. Fletcher was given work restrictions including single lift limit of 50 pounds and repetitious lifting restrictions of 35 pounds. Dr. Jones specified that Mr. Fletcher should not do any repetitive bending or lifting.

Mr. Fletcher was again injured on October 15, 1992, while working at WalMart as a mechanic. Dr. Jones conducted a clinical examination and concluded that Mr. Fletcher had suffered further injury to his L5 nerve root known as "traumatic nerve root injury." Dr. Jones further noted that claimant showed evidence of injury to his right sacroiliac joint and diagnosed the condition as being that of radiculopathy of the right leg.

Mr. Fletcher filed a claim for compensation from the employer and the Second Injury Fund on March 25, 1993. Mr. Fletcher settled with the employer on July 25, 1994, for 9.75% permanent partial disability to the body as a whole. He then sought permanent total disability compensation from the Second Injury Fund. The matter was tried before the Administrative Law Judge (ALJ) on November 1, 1994. The ALJ awarded permanent partial disability compensation from the Second Injury Fund. The judge found that Mr. Fletcher had incurred a permanent partial disability of 9.75% of the body as a whole from the second injury (the WalMart injury) and that he had a preexisting permanent partial disability of 22% to the body as a whole from the prior work related injury. The ALJ ordered the Second Injury Fund to pay Mr. Fletcher $3,575.70.

On appeal, the Labor and Industrial Commission affirmed the ALJ's denial of permanent total disability compensation but reversed the ALJ's award of permanent partial disability from the Second Injury Fund because the last injury was insufficient to meet the 12.5% threshold requirement set forth in section 287.220 RSMo 1994. ¹ Mr. Fletcher appeals the Commission's findings.

I. TOTAL PERMANENT DISABILITY

Mr. Fletcher asserts that the commission erred in denying an award of permanent total disability from the Second Injury Fund because the overwhelming weight of the evidence demonstrated that no employer in the usual course of business would reasonably be expected to employ Mr. Fletcher in his present physical condition, and he is therefore permanently totally disabled.

The term total disability means the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Section 287.020.7 RSMo (1993). The test for permanent total disability in Missouri is "the worker's ability to compete in the open labor market in that it measures the worker's prospect for returning to employment." Patchin v. Nat'l Super Markets, Inc., 738 S.W.2d 166, 167 (Mo.App.1987). The question then becomes whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's physical condition, reasonably expecting the claimant to perform the work for which he or she is hired. Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363 (Mo.App.1992).

The standard of review of the commission's finding is explicitly set forth in Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo.App.1995). The court in Davis summarized that:

The reviewing court may not substitute its judgment on the evidence for that of the Commission. The weight of the evidence and the credibility of witnesses are ultimately for the Commission. The court applies a two step process designed to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it. In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence.

Id. at 571.

The ALJ considered ten factors relevant in determining whether a claimant is permanently and totally disabled. These include: the claimant's age, education, physical condition as it affects ability to work, the claimant's occupational history, the claimant's job skills, pain experienced by the claimant in performing basic life activities, claimant's own opinions regarding the capacity to return to employment, expert medical opinions regarding the claimant's capacity to return to work, expert vocational opinions regarding the claimant's ability to compete in the labor market and any history of employment of the claimant following an allegedly permanently and totally disabling accident.

Substantial competent evidence was presented to support the ALJ's decision adopted by the commission. The claimant is thirty years old. He has successfully completed high school and graduated with honors from the Electronics Institute. Mr. Fletcher has incurred substantial injury to his back. Although he and his doctor testified as to his limitations and the pain that he still experiences, Mr. Fletcher's medical expert, Dr. Jones, testified that Mr. Fletcher is capable of working if an employer accommodates his restrictions.

Mr. Dreiling, claimant's vocational expert, opined that Mr. Fletcher was not employable and would not be able to compete for any job in the open labor market. However, the ALJ noted that Mr. Dreiling had not performed any vocational or intelligence testing to substantiate his opinion. The commission is the judge of the credibility of a witness. Faulkner v. St. Luke's Hosp., 903 S.W.2d 588, 591 (Mo.App.1995). Dr. Koprivica testified that Mr. Fletcher was not permanently and totally disabled. The existence of evidence to support a finding of a higher degree of impairment does not require reversal. Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 795 (Mo.App.1992). The commission's decision that Mr. Fletcher was not permanently and totally disabled was not against the substantial weight of the evidence. The finding of partial permanent disability is affirmed.

II. RETROACTIVE APPLICATION OF 287.220.1 RSMo

Mr. Fletcher asserts that the commission erred in retroactively applying the 1993 amendment to section 287.220.1 RSMo in that the statute substantively changed the law regarding Second Injury Fund liability. The ALJ found Mr. Fletcher suffered an additional permanent partial disability as a result of the October 15, 1992, accident and ordered the Second Injury Fund to pay $3,575.70. The award was entered on January 30, 1995. The commission on an application for review determined that Mr. Fletcher was not entitled to compensation from the Second Injury Fund.

The Commission based its decision on the recent opinion by the Eastern District in Leutzinger v. Treasurer, 895 S.W.2d 591(Mo.App.1995), handed down January 31, 1995. Leutzinger determined that the amended statute was remedial and should be applied retroactively. Id. The commission, therefore, denied Second Injury Fund liability because Mr. Fletcher's last injury did not meet the statutory threshold required by the new statute.

The pertinent part of the statute as it existed at the time Mr. Fletcher was injured stated:

All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earning at the time of the last injury. If any employee who has a permanent partial disability whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability caused by the combined disabilities is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last...