Klecka v. Treasurer of Mo.

• Decision Date: 26 April 2022
• Docket Number: SC 99280
• Citation: 644 S.W.3d 562
• Parties: Christopher KLECKA, Appellant, v. TREASURER OF MISSOURI as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Supreme Court

644 S.W.3d 562

Christopher KLECKA, Appellant,

v.TREASURER OF MISSOURI as Custodian of the Second Injury Fund, Respondent.

No. SC 99280

Supreme Court of Missouri, en banc.

Opinion issued April 26, 2022

Klecka was represented by James J. Sievers of Sievers & Associates in St. Louis, (314) 862-5909.

The treasurer was represented by Madalyn J. Campbell of the attorney general's office in St. Louis, (573) 751-3321.

Mary R. Russell, Judge

Christopher Klecka appeals the Labor and Industrial Relations Commission's ("Commission") decision reversing the administrative law judge's ("ALJ") award of permanent and total disability ("PTD") benefits against the Second Injury Fund ("Fund"). Because Klecka failed to establish he was rendered permanently and totally disabled as a result of his primary injury and sole qualifying preexisting disability pursuant to section 287.220.3,¹ the Commission's decision is affirmed.

Background

In April 2014, Klecka suffered a compensable, work-related injury to his left shoulder, which was his primary injury giving rise to this case. He settled the primary claim with his employer, J & J Welding, for 35 percent, or 81.2 weeks, of permanent partial disability ("PPD") of the left upper extremity and 21.5 percent, or 60 weeks, of PPD of the body as a whole for the resulting psychiatric injury of depression. Klecka then brought a claim against the Fund, alleging his primary injury, combined with the following prior injuries, rendered him PTD:

a) 1981 traumatic brain injury

sustained in a motor vehicle accident;

b) 1982 left knee surgery to correct frequent dislocations;

c) 2005 right thumb work-related injury that settled for 15 percent, or nine weeks, of PPD;

d) 2006 hernia that settled for 7.5 percent, or 30 weeks, of PPD;

e) 2007 right shoulder injury that settled for 35 percent, or 81.2 weeks, of PPD.

In support of his claim, Klecka relied on expert opinions from Dr. David Volarich and two vocational experts, Delores Gonzalez and James England. Dr. Volarich opined that, if a vocational expert was unable to find a suitable job for Klecka, then he was PTD as a "direct result of the work-related injury of [April 2014] in combination with his preexisting medical conditions, including his closed head injury

." Gonzalez concluded Klecka was PTD because of the combination of his primary injury and prior injuries, including his hernia, thumb injury, and right shoulder injury. England determined Klecka was PTD based on restrictions imposed by Dr. Volarich.²

In May 2019, an ALJ issued an award against the Fund for PTD benefits. The ALJ determined Klecka's primary injury, combined with his previous shoulder injury and additional disabilities, rendered him permanently and totally disabled. The Fund appealed the award to the Commission, claiming the ALJ misapplied section 287.220.3 by including all of Klecka's previous injuries and disabilities, qualifying and non-qualifying, in her analysis. The Fund argued the ALJ instead was limited to considering whether Klecka's primary injury and any qualifying preexisting disabilities of at least 50 weeks were sufficient to render him permanently and totally disabled.

On appeal, the Commission provided the following ratings for Klecka's prior injuries:

a) 1981 traumatic brain injury

: no PPD;

b) 1982 left knee surgery: no PPD;

c) 2005 right thumb injury: 15 percent, or nine weeks, of PPD;

d) 2006 hernia : 7.5 percent, or 30 weeks, of PPD;

e) 2007 right shoulder injury: 35 percent, or 81.2 weeks, of PPD.

Notably, only one of those injuries—the 2007 right shoulder injury—equaled a minimum of 50 weeks of PPD and was, therefore, a qualifying preexisting disability. The Commission also rated Klecka's primary injury at 35 percent PPD of the left shoulder and 15 percent PPD of the body as a whole for the resulting psychiatric injury.

The Commission then made several factual findings regarding the opinions provided by Klecka's experts. First, Dr. Volarich "made clear" his conclusion that Klecka was permanently and totally disabled included consideration of the effects of his 1981 head injury

, 2005 thumb injury, and 2006 hernia. Similarly, Gonzalez admitted in her deposition that she also considered the effects of Klecka's prior head injury, thumb injury, and hernia in determining he was permanently and totally disabled. Further, England's opinion that Klecka was permanently and totally disabled relied on the restrictions imposed by Dr. Volarich, which were based, in part, on the effects of Klecka's prior hernia and thumb injury. The Commission concluded there was no evidence in the record to suggest Klecka was permanently and totally disabled as a result of his primary injury and his sole qualifying disability, his 2007 right shoulder injury.

The Commission then turned its attention to section 287.220.3. Specifically, it considered:

whether an employee is entitled to [Fund] benefits whe[n] his claimed [PTD] does not result from a combination of the primary injury and preexisting disability that satisfies the enumerated criteria under [section 287.220.3(a)], but rather from the combination of his primary injury and all of his claimed preexisting disabling conditions, including those conditions that do not satisfy [section 287.220.3(a)].

The Commission ultimately concluded the language of section 287.220.3 requires preexisting disabilities to satisfy section 287.220.3's requirement of equaling a minimum of 50 weeks of PPD to be considered in a PTD claim against the Fund. Consequently, the Commission reversed the ALJ's award because it found Klecka failed to show he was rendered permanently and totally disabled as a result of his primary injury and his sole qualifying preexisting disability—the 2007 right shoulder injury. Klecka now appeals the Commission's decision.³

Standard of Review

The Commission's decision must be "supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, sec. 18. On appeal, the Commission's factual findings shall be conclusive and binding in the absence of fraud, and no additional evidence shall be heard. Section 287.495.1. This Court also defers to the Commission's determinations regarding the credibility of witnesses and the weight given to conflicting evidence. Annayeva v. SAB of TSD of City of St. Louis , 597 S.W.3d 196, 198 (Mo. banc 2020). On appeal, 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.

Section 287.495.1(1)-(4).

Analysis

The issue in this case is whether the Commission erred in determining Klecka failed to establish he is entitled to PTD benefits from the Fund. Under section 287.220.3, employees must meet two conditions to make a compensable PTD claim against the Fund. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal at least 50 weeks of PPD, and meet one of four listed criteria in section 287.220.3(2)(a)a(i)-(iv).⁴

Second, the employee must show he "thereafter sustains a subsequent compensable work-related injury [often referred to as the primary injury] that, when combined with the preexisting disability[,] ... results in a permanent total disability as defined under this chapter." Section 287.220.3(2)(a)b. As this Court recently explained in Treasurer of State v. Parker , 622 S.W.3d 178, 182 (Mo. banc 2021) :

[A]n employee satisfies the second condition by showing the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition.

....

The existence of non-qualifying disabilities does not count against (or for) the claimant in evaluating whether he meets the second threshold condition. In other words, two claimants with identical qualifying preexisting disabilities and primary injuries should be evaluated the same way when determining if they meet the second condition regardless of whether one

...