Frazier v. Treasurer of Missouri as Custodian of Second Injury Fund, No. 63949

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: CRIST; CRANDALL, P.J., and REINHARD
• Citation: 869 S.W.2d 152
• Docket Number: No. 63949
• Decision Date: 23 November 1993
• Parties: Randy FRAZIER, Appellant, v. TREASURER OF MISSOURI AS CUSTODIAN OF SECOND INJURY FUND, Respondent.

Page 152

869 S.W.2d 152

Randy FRAZIER, Appellant, v. TREASURER OF MISSOURI AS CUSTODIAN OF SECOND INJURY FUND, Respondent.

No. 63949.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 23, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 29, 1993.

Application to Transfer Denied Feb. 22, 1994.

Mogab & Hughes, Thomas J. Gregory, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Maria W. Campbell, Asst. Atty. Gen., Jefferson City, for respondent.

CRIST, Judge.

Randy Frazier (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) denying him benefits from the Second Injury Fund for permanent total disability. We affirm in part and reverse in part.

On June 19, 1987, Claimant was employed by the Missouri Department of Corrections as a corrections officer. On that date, Claimant injured his right knee while performing training exercises.

Claimant filed a claim for workers' compensation benefits against both his employer and the Second Injury Fund. Claimant received temporary total disability from his employer totalling $5,413.64. His employer also paid medical bills totalling $13,566.05. Claimant then settled his primary claim against his employer for $11,909.96 based on a 47 1/2 percent permanent partial disability rating to his right knee.

Claimant's claim against the Second Injury Fund referred to prior injuries to his left knee, back and heart. At the hearing on his claim against the Second Injury Fund, evidence revealed Claimant had previously injured his back while working for Dresser Industries in 1970. Claimant received a 25 percent permanent partial disability settlement for that injury. Claimant also injured his left knee while working for Laclede Cab Company on May 11, 1985. As a result of that injury, Claimant received a workers' compensation settlement based on a 30 percent permanent partial disability of his left knee. He also received a settlement from the Second Injury Fund based on a combination of the left knee disability and his pre-existing 25 percent disability to his lower back. Claimant also testified he had a heart catherization in 1975. He had no additional problems with his heart until June of 1990.

After the primary injury on June 29, 1987, Claimant received various medical treatments. In September of 1987 and May of 1988, he had arthroscopic surgery on his right knee due to the primary injury. In July 1989 and September 1989, he received knee replacements for both of his knees. Following the knee replacements, Claimant testified both of his knees and his back have gotten progressively worse until he was forced to quit working in April of 1991. He is not currently under medical care. He takes aspirin and Tylenol to deal with pain. He testified his left knee hurts worse than his right one.

Claimant's evidence consisted of the medical reports of Alex Shreim, M.D., and Samuel Bernstein, Ph.D. Dr. Shreim evaluated Claimant in April of 1991. He found Claimant had a 60 percent permanent partial disability to his right knee due to the primary injury. He further stated Claimant had pre-existing permanent partial disabilities of 25 percent to his lower back, 30 percent to his left knee, 10 percent due to chronic obesity, and 10 percent for his heart condition. He concluded Claimant was totally and permanently disabled, unable to compete in the open labor market. Dr. Bernstein examined Claimant on May 19, 1992, and concluded Claimant was unemployable in the labor market.

The Second Injury Fund offered the medical report of Raymond Ritter, M.D. Dr. Ritter examined Claimant on July 12, 1991. He found Claimant had a 40 percent impairment of his right knee, a 25 percent impairment of his left knee, and a 15 percent impairment of his body as a whole due to his prior back injury. However, he concluded the impairment was not greater than the simple sum of the impairments of the specific parts.

The Second Injury Fund further offered the report of James M. England, a rehabilitation counselor. England's report concluded Claimant had "transferable skills from his police and correctional work which would make him an ideal candidate for more sedentary positions within both the government sector, as well as the private security field."

The Commission found Claimant was not permanently and totally disabled. However, it did find Claimant had pre-existing disabilities which were industrially disabling. It held the Second Injury Fund liable for permanent partial disability. The Commission found Claimant's pre-existing disability totalled 148 weeks (100 weeks for 25 percent back injury and 48 weeks for 30 percent disability to left knee). The June 29, 1987, accident resulted in a 47 1/2 percent, or 76 weeks, disability to Claimant's right knee. It then concluded the sum of pre-existing disabilities and the primary injury was 224 weeks, resulting in an excess disability of 20 percent or 44.8 weeks. However, the Commission gave the Second Injury Fund credit for its prior payment in 1987 of 22.2 weeks for the combination of lower back and left knee. It then ordered the Second Injury Fund liable for 22.6 weeks for a total of $3,541.65.

On appeal to this court, Claimant first argues the Commission erred in denying benefits for permanent total disability because: (1) it should have considered the deterioration of Claimant's pre-existing disability in assessing whether he was totally disabled; and (2) even without the post-injury progression, substantial and competent evidence exists to show Claimant was totally disabled.

Appellate review of the Commission's decision is limited to questions of law, and we may reverse only upon the following grounds:

(1) That the Commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the Commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

§ 287.495, RSMo Supp.1992. We further review all evidence in the light most favorable to the Commission's decision. Carron v. Ste. Genevieve School Dist., 800 S.W.2d 64, 67 (Mo.App.1990). We cannot substitute our judgment for that of the Commission even if we would make a different conclusion. Id. at .

The Commission made the following finding:

In conclusion, both the testimony of the employee and the medical evidence indicate that many of the employee's present complaints are not related to pre-existing industrially disabling problems. Although the employee's prior back condition and left knee injury did affect his ability to work to some degree, it appears the left leg and the low back conditions gradually became worse and were further aggravated by the employee's subsequent medical treatment in 1989.

In determining the liability of the Second Injury Fund, the Commission should consider "the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained...." § 287.220.1, RSMo Supp.1992 (emphasis added). This language implies the Second Injury Fund is not liable for any progression of Claimant's pre-existing disabilities not caused by Claimant's last injury. Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 793 (Mo.App.1992); See also, Wilhite v. Hurd, 411 S.W.2d 72, 76-77 (Mo...