Garibay v. Treasurer of State of Missouri as Custodian of Second Injury Fund, 72652

Decision Date03 March 1998
Docket NumberNo. 72652,72652
Citation964 S.W.2d 474
PartiesGilberto GARIBAY, Appellant/Employee, v. THE TREASURER OF THE STATE OF MISSOURI AS THE CUSTODIAN OF THE SECOND INJURY FUND, Respondent.
CourtMissouri Court of Appeals

Mogab & Hughes, P.C., Charles A. Mogab & Nancy R. Mogab, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Maria W. Campbell, Asst. Atty. Gen., Jefferson City, Vicky L. Anthony, Asst. Atty. Gen., St. Louis, for respondent.

KAROHL, Judge.

Claimant, for the third time, appeals an award of the Labor and Industrial Relations Commission (the Commission) denying benefits from the Second Injury Fund (the Fund). On January 16, 1989, claimant sustained an injury to his left shoulder. His claim against his employer was settled. An Administrative Law Judge (ALJ) heard his claim against the Fund which was based upon allegations of prior disabilities of "morbid obesity, sleep apnea and previous injuries to the 'left lower extremity' and 'right upper extremity.' " The ALJ found claimant was permanently and totally disabled and made an award against the Fund.

On July 22, 1994, the Commission, citing Shipp v. National Vendors, 862 S.W.2d 344 (Mo.App. E.D.1993), ruled claimant failed to prove his "preexisting problems" caused any difficulty which precluded him from performing his essential job functions. It decided claimant worked before the shoulder injury, full-time without interruption, so he was not entitled to recover from the Fund. We reversed and remanded to the Commission for reconsideration in accordance with a new standard set forth in section 287.220.1 RSMo 1994 because that statute, enacted in 1993, was a remedial statute and changed the standard for liability of the Fund. Garibay v. Marcraft, Inc., 899 S.W.2d 553 (Mo.App. E.D.1995) (Garibay I ).

On November 7, 1995, the Commission made a second final award denying compensation. It found, "although claimant has numerous preexisting injuries, none of them constituted an obstacle or hindrance to claimant's employment." We subsequently held the Commission failed to comply with our mandate following the first appeal. It "failed to apply the statutory standard in evaluating Garibay's preexisting disabilities." Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 60 (Mo.App. E.D.1996) (Garibay II ). We reversed and remanded to the Commission for further proceedings "consistent with the opinion."

On May 29, 1997, the Commission entered a third final award denying compensation. It found claimant's sleep apnea was not a permanent condition; his morbid obesity was not a permanent condition, a prior fracture of his left wrist did not cause a permanent disability and did not hinder or obstruct employment or re-employment; a prior left ankle injury caused no permanent disability, hindrance or obstacle to employment or re-employment; a right elbow condition was not a disability; and, injuries of his left ankle and his knee which were treated surgically, were not a permanent disability. The Commission concluded the Fund was not liable because claimant had no preexisting permanent partial disabilities.

We review claimant's points on his third appeal. The Commission's factual findings The ALJ held one hearing only. All of the evidence was before the Commission prior to the original award. In the first award, the Commission expressly accepted "as true the testimony of the claimant." It observed that "[t]his claimant no doubt had numerous preexisting injuries, none of them were 'industrially disabling.' " It did not reject the claim on the basis that the preexisting conditions were not permanent. In our first opinion we referred to "claimant's prior medical conditions." Garibay I, 899 S.W.2d at 555. The Commission's second award included a finding that claimant "had numerous preexisting injuries." It found those injuries were not a hindrance or obstacle to employment and denied benefits. It did not find the injuries did not cause permanent disabilities. On appeal, we found "this commission failed to apply the statutory standard in evaluating Garibay's preexisting disabilities." (Emphasis added). 930 S.W.2d at 60. We were required to reverse and remand because the Commission's award was based upon the former "industrial disability" evaluation which the legislature rejected and replaced. We reversed and remanded for proceedings consistent with our opinion and said, when reconsidering Garibay's preexisting disabilities in connection with the 1993 amendment, the Commission should be aware that not all portions of section 287.220.1 RSMo 1994, as amended, are to be applied retroactively, the provisions limiting the degree of disability that must be found in order for liability of the Fund to attach does affect a substantive right and, thereby, must be applied retrospectively. Garibay II, 930 S.W.2d at 60-61. We found that "each of the experts testifying about Garibay's preexisting disabilities concluded that given the presence of his sleep apnea, his employment in the open labor market would be severely and totally limited." (Emphasis added).

                will be affirmed if they are supported by competent and substantial evidence and are not against the overwhelming weight of the evidence.  Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo.App. W.D.1995).  If credibility of witnesses was an issue before the ALJ and the Commission, we would accept the Commission's decision.  Section 287.495 RSMo 1994.  However, credibility of all witnesses was not a disputed issue of fact.  We will affirm the Commission's factual findings if they are supported by substantial and competent evidence and are not contrary to the overwhelming weight of the evidence.  Davis, 903 S.W.2d at 571.   Because this is a third appeal we also review, as a question of law, whether the Commission has rendered an award in conformity with its own previous findings which preceded the prior appeals and were the factual basis of previous opinions and mandates in this case.  The Commission is without authority to modify, alter, amend or otherwise depart from the previous mandates.  Hankins v. Hankins, 864 S.W.2d 351, 353 (Mo.App. W.D.1993)
                

Claimant argues the Commission erred as a matter of law by: (1) deciding claimant's failure to have knowledge before the 1989 shoulder injury that he had a preexisting sleep apnea condition would exclude consideration of that condition as an existing permanent partial disability; and, (2) by rejecting morbid obesity as a preexisting permanent partial disability because it was "self-inflicted." Finally, claimant argues the Commission erred as a matter of law in denying an award against the Fund because it is not supported by competent and substantial evidence.

THE EVIDENCE

Claimant testified in person. James Israel, a vocational rehabilitation consultant, testified for claimant in person. All the Fund's witnesses were by deposition. Claimant offered a report of James Israel as an exhibit and the deposition testimony of Dr. Eli Ronald Shuter, a neurologist. The Fund offered the deposition testimony of Dr. Philip George, an orthopedic surgeon; the deposition testimony of Dr. Harold E. Walters, also an orthopedic surgeon, and, the testimony of Mr. James M. England, a rehabilitation counselor. In making the present award, the Commission apparently ignored its original finding that claimant's testimony was true. Nothing occurred after that finding which would change the Commission's appraisal of claimant's credibility. Moreover, the ALJ's findings and credibility determination remain part of the record as a whole on the testimony of claimant and his witnesses. Thus, they are entitled to due consideration. Davis, 903 S.W.2d at 570-571.

In the context of the Commission's finding that claimant's testimony was true, we review that evidence. Claimant testified that he had severe sleep apnea which began possibly ten years ago. That would only support a finding the condition pre-existed the 1989 shoulder injury. The first medical diagnosis of sleep apnea occurred after the shoulder injury, but the date of diagnosis is immaterial. He has weighed three hundred and thirty pounds or more for at least five years. He previously broke his left wrist which he is "not able to fully move [it] the way [he] would like to" and it is a handicap in doing any type of work with the left wrist, it was painful as he worked. He has periodic pain and limited movement in his knees. The sleep apnea is a severe sleep condition which was surgically treated by removal of his soft pallet. The surgery failed. He has trouble walking because of his weight and a knee which underwent surgery. If he stands for a half-hour to an hour, he gets tired. He has problems bending, lifting and squatting. His conditions are getting worse. On cross-examination by counsel for the Fund, he confirmed that his sleep apnea is connected to his weight. After the 1989 shoulder injury, he was employed for approximately four months by the General Motors Corporation. He had various job assignments "to see if [he] could do them and [he] wasn't able to do them."

James Israel testified for claimant. In connection with his live testimony, the ALJ accepted his four-page evaluation of claimant as an exhibit. Claimant failed to graduate from high school. He has a GED. During his work career he performed unskilled jobs. He has no "transferable" skills. His morbid obesity "imposes severe restrictions on his physical abilities and stamina." During most of claimant's life he failed in his attempts to lose weight. "He described having sleep apnea since the early 1980's." "Since, Mr. Garibay literally falls asleep between 10--30 minutes on an average of three times during the day, sustaining work activity would be untenable. His reduced concentration resulting from impaired deep sleep patterns would make attention to job details very cumbersome." The cumulative factors of claimant's conditions "simply...

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