Klecka v. Treasurer of Mo.

Decision Date22 June 2021
Docket NumberNo. ED108721,ED108721
CourtMissouri Court of Appeals

Appeal from the Labor and Industrial Relations Commission

Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J.


Christopher Klecka appeals the decision of the Labor and Industrial Relations Commission which reversed the Administrative Law Judge's award in Klecka's favor and against the Second Injury Fund (the Fund) for permanent and total disability (PTD) benefits. The Commission held that Klecka failed to carry his burden to establish his PTD claim against the Fund under section 287.220.3's provisions applicable to this post-January 1, 2014 PTD claim.

In his first point on appeal, which is dispositive, Klecka argues the Commission misinterpreted section 287.220.31 when it held that Klecka's burden was to demonstrate he is PTD by considering solely the combination of one - and only one - qualifying "medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability" ("qualifying disability") together with the disability resulting from the primary work-related injury giving rise to the claim. And since Klecka's experts' opinions that Klecka was PTD relied not only on Klecka's qualifying right shoulder disability together with his primary left shoulder injury, but also considered Klecka's numerous other preexisting injuries and disabilities and other non-medical factors relevant to employability on the open labor market like his age, work experience, education, training, and trainability, the Commission rejected Klecka's experts' ultimate opinions that Klecka was PTD and instead found Klecka failed to carry the burden of proof the Commission believes section 287.220.3 creates - that Klecka's PTD resulted solely from one qualifying prior disability in combination with the disability resulting from the primary injury.

We disagree with the Commission's statutory interpretation of section 287.220.3. Our holdings and disposition here are guided in part by the Missouri Supreme Court's recent decision in Treasurer as Custodian of Second Injury Fund v. Parker, No. SC 98704, 2021 WL 1554726 (Mo. banc April 20, 2021), in which the Court rejected the Fund's interpretation of section 287.220.3 that only one qualifying disability may be considered in combination with the primary injury to determine PTD liability against the Fund. But, we also look to section 287.220.3's incorporation into this analysis of section 287.020.6's broad definition of permanent and total disability, which was not addressed in Parker, to reach our conclusion that the other medical andnon-medical factors such as age, education, work experience, training, and physical condition2 remain proper considerations under section 287.020.6 in a post-2014 PTD claim against the Fund so long as the claimant has satisfied the 50-week minimum pre-existing disability.3

Therefore, we reverse the Commission's decision and remand for the entry of an award in favor of Klecka and against the Fund for PTD benefits because Klecka satisfied the requirements of section 287.220.3 and it was proper that his experts considered, in addition to his qualifying disability and primary injury, the medical and non-medical factors relevant to Chapter 287's definition of total disability found at section 287.020.6.

Factual and Procedural Background

At the time of the April 18, 2014, primary injury to his left shoulder which gave rise to this case, Klecka worked as a welder, his trade during most of his career. This work involved handling heavy equipment and a variety of tools. Klecka settled the primary claim with his employer, J & J Welding, for 35% or 81.2 weeks of permanent partial disability or PPD of the left upper extremity and 21.5% or 60 weeks PPD of the body as a whole for the resulting psychiatric injury, namely depression.

Klecka then pursued this claim against the Fund given the following history of his work-related and non-work-related accidents and injuries:

a. 1981 head injury sustained in motor vehicle accident;
b. 1982 left knee surgery to correct frequent dislocations;
c. 2005 right thumb work-related injury which claim settled for 15% or 9 weeks PPD;
d. 2006 hernia which settled for 7.5% or 30 weeks of body-as-a-whole PPD;
e. 2007 right shoulder injury which Klecka settled for 35% or 81.2 weeks of body-as-a-whole PPD;

Klecka's claim against the Fund was heard before the ALJ on January 29, 2019. On May 2, 2019, the ALJ issued an award in favor of Klecka and against the Fund for PTD benefits finding Klecka to be "unable to return to any normal or reasonable employment and that no employer in the ordinary course of business would reasonably be expected to hire [Klecka] in his current physical condition."

The Fund timely filed an appeal of the award to the Commission claiming that the ALJ misapplied section 287.220.3 by including Klecka's multiple conditions and disabilities in the analysis when she should have limited her consideration to whether or not Klecka was PTD solely as a result of the combination of one qualifying 50-week preexisting disability together with the disability resulting from the primary injury.

The Commission, for its part, addressed each of Klecka's prior injuries and made the following findings as to the degree of PPD resulting from each:

a. 1981 head injury: No PPD.
b. 1982 left knee surgery: No PPD.
c. 2005 right thumb injury: 15% or 9 weeks PPD.
d. 2006 hernia: 7.5% or 30 weeks of body-as-a-whole PPD.
e. 2007 right shoulder injury: 35% or 81.2 weeks of body-as-a-whole PPD.

With respect to the April 18, 2014 primary injury to his left shoulder, the Commission found that Klecka had a 35% PPD of the left shoulder and 15% PPD of the body-as-a-whole for the resulting psychiatric injury referable to depression. Based on these findings, Klecka had one preexisting disability "equaling a minimum of fifty weeks of permanent partial disability" - the 2007 right shoulder injury.

The Commission then addressed the expert opinion evidence regarding Klecka's claim for PTD against the Fund. Klecka relied primarily on the expert medical opinions of Dr. David Volarich, and the expert vocational opinions of Ms. Dolores Gonzalez and Mr. James England. Dr. Volarich opined that Klecka was PTD as a result of the primary left shoulder injury in combination with Klecka's prior injuries and medical conditions including the 1981 head injury, the 2005 thumb injury, the 2006 hernia, and the 2007 right shoulder injury. Likewise, Ms. Gonzalez and Mr. England, for their part, opined that as a result of the same combination of primary injury and prior injuries, medical conditions, and restrictions, along with the non-medical considerations such as his age, work experience and history, education, and training, Klecka was not capable of any competitive work in the open job market.

The Commission reversed the award based on its interpretation of section 287.220.3 that to establish Fund liability for PTD benefits, Klecka's burden was to prove that the combination of (1) one qualifying preexisting disability equaling a minimum of 50 weeks of PPD and (2) the disability resulting from the primary injury rendered him PTD. And since Klecka's experts and the ALJ additionally considered Klecka's other injuries and disabilities as well as the foregoing non-medical considerations, he failed to carry his burden of proof.

Standard of Review

Pursuant to article V, section 18 of the Missouri Constitution, our review of the Commission's decision is to determine whether it is "supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, § 18. Additionally, section 287.495.1 provides that this Court "shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(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."

Although we defer to the Commission on issues concerning witness credibility and the weight given to conflicting evidence, we review de novo the Commission's interpretation of the workers' compensation statute and its application of the law without deference to the Commission's findings. Thompson, 545 S.W.3d at 893; Williams v. Treasurer of Missouri, 598 S.W.3d 180, 186 (Mo. App. E.D. 2020).

Relevant Rules of Statutory Construction

"Workers' compensation law is entirely a creature of statute, and when interpreting the law, the court must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and give effect to that intent if possible." Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 381 (Mo. banc 2014) (quoting Hayes v. Show Me Believers, Inc., 192 S.W.3d 706, 707 (Mo. banc 2006)). While we review the issue of statutory construction before us de novo, we strictly construe the provisions of the workers' compensation statute. Section287.800.1; see also Cosby v. Treasurer of State - Custodian of Second Injury Fund, 579 S.W.3d 202, 206 (Mo. banc 2019).

In determining legislative intent, no portion of a statute is read in isolation, but rather is read in context to the entire statute, harmonizing all provisions. Aquila Foreign Qualifications Corp. v. Director of Revenue, 362 S.W.3d 1, 4 (Mo. banc 2012) (citing Util. Serv. Co., Inc. v. Dep't of Labor & Indus. Relations, 331 S.W.3d 654, 658 (Mo. banc 2011)). Under the principle of construction known as ejusdem generis, context is important "in determining the scope and extent of more general words." Circuit City Stores, Inc. v. Director of Revenue, 438 S.W.3d 397, 401 (Mo. banc 2014) (quoting ...

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