Gassen v. Lienbengood

• Decision Date: 18 May 2004
• Docket Number: No. WD 62944.,WD 62944.
• Citation: 134 S.W.3d 75
• Parties: Deborah L. GASSEN, Appellant, v. Paul O. LIENBENGOOD, Defendant, Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

134 S.W.3d 75

Deborah L. GASSEN, Appellant, v. Paul O. LIENBENGOOD, Defendant, Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent.

No. WD 62944.

Missouri Court of Appeals, Western District.

May 18, 2004.

John B. Boyd, Kansas City, for appellant.

Kimberley Cox Fournier, Kansas City, for respondent.

Before VICTOR C. HOWARD, P.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.

JAMES M. SMART, JR., Judge.

Deborah L. Gassen ("Claimant") appeals a decision of the Labor and Industrial Relations Commission ("the Commission") denying Second Injury Fund ("the Fund") liability.

We affirm.

Sometime in 1993, Claimant began experiencing pain and numbness in her hands while working as a paralegal for Paul Liebengood ("Employer"). On January 25, 1995, Claimant visited a doctor to address this condition. About two weeks after her doctor's visit, on February 6, 1995, Claimant was injured while working for Employer when a bookcase fell on her. In May 2001, Claimant settled with Employer a claim for injuries she alleged occurred on January 18, 1995, and also on February 6, 1995, in the accident. Claimant then amended her claim to seek recovery from the Fund. The case was tried before an Administrative Law Judge. The Administrative Law Judge ("ALJ") denied Fund liability, concluding that although Claimant was permanently and totally disabled, this disability was caused by the February 1995 accident alone. The Commission affirmed this decision. Claimant appeals.

Factual Background

From 1987 through 1998, Claimant worked for Employer as a paralegal. Sometime around 1993, she began experiencing pain and numbness in her hands and arms. Claimant testified that as a result of this pain, she had difficulty sleeping and working. Her work duties at that time included frequent typing. While she did not see a doctor immediately, Claimant testified that her gynecologist told her at the end of 1993 that he "figured it was carpal tunnel syndrome." This advice prompted her to wear braces on her arms and take over-the-counter medication. Sometime at the end of 1994, Employer became aware of Claimant's problems and persuaded her to see a doctor. On January 25, 1995, she visited Dr. Truett Swaim, who told her to wear splints at night for comfort and take vitamins. This was the first time she consulted a doctor for the purpose of addressing this pain. The doctor did not limit her duty.

On February 6, 1995, about two weeks later, Claimant was injured while working for Employer. A bookcase fell on her after she pulled a book from the shelf. The bookcase, which was about ten feet high and contained numerous books, knocked Claimant to the floor. The record does not provide a clear description of Claimant's fall. Claimant testified that she was not certain how it happened, but eyewitnesses told her that her head and right shoulder hit Employer's desk. She also thought she may have fallen with hands outstretched, perhaps jamming both wrists while striking her back, head, shoulder, and torso. Claimant experienced pain that evening, and she had difficulty sleeping. She visited Dr. Andrews the following day and complained of pain in her head, neck, lower back, right shoulder, and jaw. Initially, she was treated with bed rest for three days and muscle relaxants containing Tylenol. She returned to work, but the pain persisted.

At the hearing, Claimant testified to her work history following the accident. Claimant continued to work for Employer through May 1995, when she took some time off. In June 1996, she returned to work for Employer part-time, but she was unable to adequately perform her duties. At that point, Claimant and Employer mutually agreed that she should quit. Claimant found employment as a secretary, then as a paralegal. Despite numerous accommodations by employers, Claimant quit working in September 2000. She has not worked since that time.

About one month after the February 1995 accident, Claimant returned to Dr. Swaim, whom she had consulted in late January about the carpal tunnel issue. Dr. Swaim advised her to continue wearing the splints. According to Dr. Swaim's records, the splints were helping with the pain in Claimant's arms. However, the pain and numbness continued. Claimant underwent several surgical procedures. On August 17, 1995, Dr. Lanny Harris performed an anterior transposition of the ulnar nerve at the right elbow. At that time, Dr. Harris also performed a carpal tunnel release and a cubital tunnel release on her right arm. Finally, on March 27, 1996, Dr. Harris performed a carpal tunnel release on Claimant's left arm. The medical records indicate that Dr. Harris presumed that these injuries were connected to the February 1995 accident. In any event, Dr. Harris diagnosed this pain as carpal tunnel syndrome.

From 1995 through 2001, Claimant saw multiple doctors and underwent several surgical procedures to treat additional injuries that apparently resulted from the February 1995 accident. These procedures included a multi-level fusion on her neck (from C4 to C7), an arthroscopic debridement of the left and right mandibular joints of the jaw, a right craniomandibular open-joint anthroplasty of the jaw, and an arthroscopic subacromial decompression of the right shoulder. The most recent procedures occurred in 2001. On March 8, 2001, Claimant had another surgery on her neck, a fusion at C3-4. And on July 12, 2001, Claimant underwent another surgery on her jaw, an open-jointed surgery on her left temporomandibular joint.

In May 1998, Claimant filed a workers' compensation claim against Employer for the February 1995 accident. This claim alleged injuries to the "head, neck, back, shoulders, upper and lower extremities and body as a whole." It alleged, moreover, liability against the Fund, claiming that these injuries combined with cumulative injuries to the upper extremities (dated January 18, 1995) to produce permanent and total disability.

In May 2001, Claimant settled a claim with Employer and his insurer based on injuries she claimed were suffered "on or about January 18, 1995." This "compromise settlement" (pursuant to section 287.390)¹ stated that the injuries "[arose] out of and in the course of her employment" with Employer. It contained a lump-sum payment of $10,000.00. It also noted that Employer and his insurer had already paid $22,089.00 in medical expenses relating to these injuries. In a separate agreement on the same day, Claimant also settled the February 1995 claim. The terms of that settlement included the payment of $3,560.96 in temporary partial disability, $28,153.66 in temporary total disability, and $127,600.00 in medical expenses. This settlement, moreover, included a lump-sum payment of $40,000.00 (at the time of settlement) and an annuity providing a payment of $53,000.00 (on June 17, 2020). As the final part of the settlement, Employer and his insurer also agreed to establish a "Custodial Agreement for Future Medical Expenses" of Claimant, which included the purchase of an annuity that pays into the medical fund. This settlement—as well as the settlement for the January injuries— was approved by an ALJ.

A few months thereafter, in October 2001, Claimant filed an amended claim against the Fund. Claimant once again alleged that injuries in January 1995 combined with the February 1995 injuries to produce permanent and total disability. At the hearing before the ALJ, Claimant introduced the deposition testimony of Dr. Brent Koprivica, who conducted medical evaluations of Claimant in 2000 and 2001. Dr. Koprivica testified that Claimant was permanently and totally disabled as a result of the January and February injuries combined. Claimant also presented evidence that no employer in the usual course of business would reasonably be expected to employ Claimant. As exhibits, Claimant also offered the two settlements between herself and Employer and medical records spanning six years.

The ALJ denied the Second Injury Fund claim, concluding that Claimant's permanent and total disability was caused by the February 1995 accident alone. The Commission affirmed this decision. This appeal follows.

Analysis

Our review is limited to whether, considering the whole record, there is sufficient competent and substantial evidence to support the Commission's award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003); see also Mo. CONST. art. V, § 18. When the Commission affirms or adopts the findings of an ALJ (as it has done here), we review the decision and findings of the ALJ as adopted by the Commission. Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522, 524 (Mo.App.1999).²

In her first point, Claimant argues that the Commission erred in finding that her disability was caused by the February 1995 accident alone. Rather, Claimant says, it was caused by a combination of these injuries and a preexisting condition (carpal tunnel syndrome). According to Claimant, the carpal tunnel syndrome was cognizable at the time of the February 1995 accident. Thus, Claimant argues that the Commission erred in finding that no actual or measurable disability preceded the primary injury.

Section 287.220 creates the Second Injury Fund. The purpose of the Fund is to encourage employers to hire partially disabled applicants. Meilves v. Morris, 422 S.W.2d 335, 338 (Mo.1968). The hiring of such individuals raises the possibility that the partial disability will combine with a later, on-the-job injury to produce a greater (if not total) permanent disability. Wuebbeling v. West County Drywall, 898 S.W.2d 615, 617-18 (Mo.App.1995). The legislature wanted to assure employers that, in such cases, they would not be exposed to a greater amount of liability than that which results from the work-related injury. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo.App.1995). Thus, it limited the employer's liability to that part of the disability that can be attributed...