Hoven v. Treasurer of State, ED 98842.

• Decision Date: 26 November 2013
• Docket Number: No. ED 98842.,ED 98842.
• Citation: 414 S.W.3d 676
• Parties: Fred HOVEN, Appellant, v. TREASURER OF the STATE of Missouri, CUSTODIAN OF the SECOND INJURY FUND, Respondent.
• Court: Missouri Court of Appeals

414 S.W.3d 676

Fred HOVEN, Appellant,
v.
TREASURER OF the STATE of Missouri, CUSTODIAN OF the SECOND INJURY FUND, Respondent.

No. ED 98842.

Missouri Court of Appeals,
Eastern District,
Division One.

Nov. 26, 2013.

[414 S.W.3d 677]

Dean Lee Christianson, St. Louis, MO, for appellant.

[414 S.W.3d 678]

Chris Koster, Da–Niel Cunningham, Jefferson City, MO, for respondent.

CLIFFORD H. AHRENS, Presiding Judge.

Fred Hoven (“Claimant”) appeals the awards of the Labor and Industrial Relations Commission (“Commission”) finding the Second Injury Fund (“SIF”) not liable for permanent partial disability (“PPD”) benefits based on his December 2004 injury. The SIF cross-appeals the award of the Commission granting PPD benefits to Claimant based on his September 2007 injury. We affirm.

The parties are familiar with the facts of the case; therefore we discuss the facts below only as needed to address the issues on appeal.

Our standard of review is set forth in section 287.495.1 RSMo 2000. ¹ An appellate court shall only review questions of law and may modify, reverse, remand or set aside an award only if the Commission acted without or in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award. Id. In the absence of fraud, the findings of fact made by the Commission within its powers shall be conclusive and binding. Id.

It is the claimant's burden in a worker's compensation proceeding to prove all of the elements of his claim to a reasonable probability. Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo.App.2008). To recover against the SIF, a claimant must prove that he incurred a compensable injury that resulted in PPD. Section 287.220.1. A claimant must also establish that he had a pre-existing PPD, whether from a compensable injury or not, that: existed when the last injury was sustained; was of such severity as to constitute a hindrance or obstacle to employment or re-employment should he become unemployed; and equals a minimum of 50 weeks of compensation for injuries to the body as whole or fifteen percent for major extremities. Id.; Dunn, 272 S.W.3d at 272. In addition, the claimant must establish that the present compensable injury, coupled with pre-existing PPD, causes greater total disability than the sum of the disabilities viewed independently. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). The level of permanent disability associated with an injury cannot be determined until it reaches the point of maximum medical improvement (“MMI”). Cardwell v. Treasurer of Missouri as Custodian of the Second Injury Fund, 249 S.W.3d 902, 910 (Mo.App.2008). The issue of whether further medical improvement can be reached is essential to determine when a disability becomes permanent, and accordingly, when payments for PPD should be calculated. Id.

We do not view the evidence in the light most favorable to the Commission's award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We examine the entire record and determine whether there is competent and substantial evidence to support the award. Id. at 222–23. “[W]e defer to the Commission on issues concerning credibility and the weight to be given conflicting evidence.” Hughey v. Chrysler Corp., 34 S.W.3d 845, 846 (Mo.App.2000). However, this Court reviews questions of law independently, and is not bound by the Commission's conclusions of law or its application of the law to the facts.

[414 S.W.3d 679]

Grubbs v. Treasurer of Missouri as Custodian of Second Injury Fund, 298 S.W.3d 907, 910 (Mo.App.2009).

In his first point relied on, Claimant contends that the Commission erred in reversing the award of the Administrative Law Judge (“ALJ”), and concluding that the SIF is not liable for PPD benefits to him based on the December 2004 injury because the facts found by the Commission, coupled with the conclusive presumption of section 287.190.6, proved that Claimant's injuries were at maximum medical improvement (“MMI”) and produced a PPD. Claimant asserts that he proved, factually and legally, that his injuries produced the required PPD needed to create SIF liability.

Claimant argues that the Commission improperly denied his claim because it incorrectly found that he had not reached MMI regarding his December 2004 injury. The Commission found Dr. Mark Lichtenfeld's testimony to be credible. Dr. Lichtenfeld did state that Claimant had varying degrees of PPD relative to the December 2004 injury and the September 2007 injury. However, he also testified that he did not believe that Claimant had reached MMI, and that he might benefit from further treatment, including possibly more surgery. The Commission also found that the treatment notes of Dr. Bruce Schlafly, who performed carpal tunnel surgeries on both of Claimant's wrists in 2009, indicated that he might need further evaluation and surgery, and hence, had not reached MMI. The Commission found that Claimant's testimony was at best, inconclusive regarding future treatment, and that it could not discern any basis in his testimony that his medical condition relative to the December 2004 injury was permanent.

Regarding SIF liability, the Commission concluded that based on Dr. Lichtenfeld's “uncontested testimony” that Claimant was not at MMI for the December 2004 injury, and accordingly, that it could not determine the nature or extent of the PPD resulting from that injury. Specifically, it concluded that the “essential” issue of whether further medical progress could be made was not resolved by the Claimant's proof, stating:

The only doctor to testify opined that [Claimant] is not at [MMI] and that he would benefit from further evaluation. The notes from Dr. Schlafly and [Claimant]'s own testimony support the proposition that [Claimant] remains in need of further treatment for the primary injuries. [Claimant] did not testify as to whether he intends further significant treatment and his only mention of surgery is inconclusive.

Simply put, we don't know whether [Claimant]'s medical...