Garibay v. Treasurer of Missouri, 69606

Citation930 S.W.2d 57
Decision Date13 August 1996
Docket NumberNo. 69606,69606
PartiesGilberto GARIBAY, Employee, v. TREASURER OF MISSOURI as Custodian of Second Injury Fund, Employer.
CourtCourt of Appeal of Missouri (US)

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

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Vicky L. Anthony, Assistant Attorney General, St. Louis, for Respondent.

PUDLOWSKI, Presiding Judge.

Gilberto Garibay (Garibay) appeals the decision of the Labor and Industrial Relations Commission (Commission) denying him Second Injury Fund compensation. Garibay settled this claim with his employer and the sole issue was liability of the Second Injury Fund. Garibay's claim was originally brought before an Administrative Law Judge (ALJ) who determined him to be permanently and totally disabled. The appeal by the Second Injury Fund to the Commission reversed the ALJ's award and found that none of Garibay's preexisting injuries were "industrially disabling." This court then remanded the case back to the Commission to evaluate in accordance with the standard set forth in § 287.220.1 RSMo (1994) due to a legislative amendment in 1993. The Commission again reversed the findings of the ALJ. We reverse and remand.

Garibay worked for Marcraft, Inc. (employer), for about eight months for forty hours per week, assembling air conditioning units. On January 16, 1989, he was assisting several co-workers in lifting a piece of steel weighing several hundred pounds when he injured his left shoulder. His shoulder was treated and he was paid 162 and 5/7 weeks of temporary total disability due to his inability to work and later settled with his employer for a 35.5% permanent shoulder disability. Garibay was subsequently laid off.

Following his employment at Marcraft, Inc., Garibay was hired by General Motors as part of a welding team on the assembly line. He was unable to consistently perform the duties assigned to him and was subsequently transferred to another position which required him to stand. However, he was unable to fulfill his duties in this position as well. General Motors transferred him to several other jobs in an attempt to find one which he could perform; but they were unsuccessful in finding him a position. He was dismissed.

Prior to Garibay's primary injury in January 1989, he suffered from numerous disabilities which included: morbid obesity, sleep apnea, a broken left wrist in 1978, numbing pain in the right arm since 1982 due to the removal of a tumor, two injuries to the left ankle in 1987 and arthroscopic surgery on the left knee in 1988. Garibay has unsuccessfully attempted to surgically correct his sleep apnea and to restrict his diet.

The ALJ determined Garibay suffered from prior permanent and industrially disabling conditions. Combined with his primary injury sustained at Marcraft, Inc., the ALJ determined that the total disability was greater than the additive sums of the injuries which resulted in Garibay's permanent and total disability. Garibay was awarded Second Injury Fund compensation. On appeal to the Commission, Garibay's award was reversed. After reviewing the evidence and considering the whole record, the first Commission accepted Garibay's testimony as true but found that none of his injuries were industrially disabling because he was able to continue working without restrictions following each of the injuries. Garibay then appealed to this court which reversed and remanded the cause back to the Commission for reconsideration in accordance with the standards set forth in § 287.220.1 RSMo (1994). Upon remand, the Commission 1 again reversed the ALJ stating that none of Garibay's numerous preexisting injuries constituted an obstacle or hindrance to his employment due to his ability to continue his employment following the primary injury.

This court's review of the Commission is limited. Appellate review is governed by § 287.495 RSMo (1994). This court may only set aside the Commission's decision if there is no substantial and competent evidence to support it or if its determination is clearly contrary to the weight of the evidence. Blackwell v. Puritan-Bennett Corporation, 901 S.W.2d 81, 83 (Mo.App. E.D.1995). The Commission is the sole judge of the credibility of the witnesses 2, and this court will not substitute its interpretation of factual issues for that of the Commission even if it would have made a different determination. Faulkner v. St. Luke's Hospital, 903 S.W.2d 588, 591-592 (Mo.App. W.D.1995). In this appeal we review questions of law independently. § 287.495 RSMo (1994).

This case was remanded to the Commission in order to evaluate it based on the amendment of § 287.220.1 RSMo (1994). Garibay v. Marcraft, Inc., 899 S.W.2d 553, 555 (Mo.App. E.D.1995). Prior to this amendment, preexisting injuries with regard to Second Injury Fund liability were evaluated by the judicially imposed "industrially disabling" standard. This judicial standard was created to limit Second Injury Fund liability to those individuals who suffered a work-related injury and a preexisting disability. To determine if a preexisting injury was industrially disabling, the Commission would look to past circumstances as indicia of the injury's seriousness. This inquiry was based on the effect of the injury on the employee's ability to perform work-related duties before the employee sustained the primary injury. Faulkner v. St. Luke's Hospital, 903 S.W.2d 588, 592 (Mo.App. W.D.1995). This standard did not, however, require the employee to totally stop working. The court recognized that some injured persons may still have to work while in pain and determined that this is not conclusive proof that the preexisting injury is not industrially disabling. Searcy v McDonnell Douglas 894 S.W.2d 173, 177 (Mo.App. E.D.1995).

The legislature is presumed to know the law and, therefore, enacted the amendment to § 287.220.1 in order to have some effect on the statute's application. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). In construing this statute, the words used are to be considered in their plain and ordinary meaning to ascertain the intent of the legislature. Id. The provisions of the legislative act must be construed and considered together. Id.

The 1993 amendment to § 287.220.1 RSMo (1994) superseded the former judicially created standard of "industrially disabled." The new standard was meant to clarify which preexisting conditions would be serious enough to trigger the statute. Leutzinger v. Treasurer, 895 S.W.2d 591, 593 (Mo.App. E.D.1995). Following the legislature's amendment, the preexisting injury need only be "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed" in order to trigger § 287.220 RSMo (1994). If there are preexisting injuries which result in permanent partial disabilities, it is also requisite to meet the minimum requirements of fifty weeks for injuries to the body as a whole or fifteen percent for major extremities. There are no requirements when the preexisting permanent partial disability and the primary injury combine to cause permanent total disability to the employee. Culp v. Lohr Distributing Co., 898 S.W.2d 613, 614 (Mo.App. E.D.1995).

Upon remand, this Commission failed to apply the statutory standard in evaluating Garibay's preexisting disabilities. In its denial of compensation, the Commission indicated that Garibay's preexisting injuries did not meet the "hindrance or obstacle" standard due to Garibay's ability to work without restrictions prior to his primary injury. Without exception, every factor this Commission enumerated for...

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    • United States
    • Missouri Court of Appeals
    • January 22, 2002 produce substantial evidence of any industrial disability prior to the work-related injury. See also Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 59 (Mo. App. E.D.1996)(Under the "industrially disabling" standard, past circumstances were viewed as indicia of the prior condition's ser......
  • Hazeltine v. Second Injury Fund
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    ...condition, then a preexisting injury constitutes "a hindrance or obstacle to employment or reemployment." Garibay v. Treasurer of Missouri , 930 S.W.2d 57, 60 (Mo. App. E.D. 1996).The Commission found "Claimant offered no specific testimony, either at hearing or in her deposition, regarding......
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    • November 21, 2001 produce substantial evidence of any industrial disability prior to the work-related injury. See also Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 59 (Mo.App E.D. 1996)(Under the "industrially disabling" standard, past circumstances were viewed as indicia of the prior condition's seri......
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