Kowalski v. M-G Metals and Sales, Inc., M-G

• Decision Date: 17 March 1982
• Docket Number: M-G,No. 12460,12460
• Citation: 631 S.W.2d 919
• Court: Missouri Court of Appeals
• Parties: Stanley KOWALSKI, Plaintiff-Respondent, v.METALS AND SALES, INC. and United States Fidelity & Guaranty Company, Defendants-Respondents, and Melvin E. Carnahan, Treasurer of Missouri, Custodian of the Second Injury Fund, Defendant-Appellant.

Page 919

631 S.W.2d 919

Stanley KOWALSKI, Plaintiff-Respondent, v. M-G METALS AND SALES, INC. and United States Fidelity &

Guaranty Company, Defendants-Respondents,

and

Melvin E. Carnahan, Treasurer of Missouri, Custodian of the

Second Injury Fund, Defendant-Appellant.

No. 12460.

Missouri Court of Appeals, Southern District, Division Two.

March 17, 1982.

Motion for Rehearing Overruled and to Transfer to Supreme

Court Denied April 6,

1982.

Application to Transfer Denied May 17, 1982.

Jack Randall, St. Louis, for plaintiff-respondent.

Adrian DeYong, Jo A. Story Schweiss, Luke & Cunliff, St. Louis, for defendants-respondents.

John D. Ashcroft, Atty. Gen., Carroll J. McBride, Asst. Atty. Gen., Jefferson City, for defendant-appellant.

PREWITT, Presiding Judge.

The custodian of the Second Injury Fund appeals from an order of the Circuit Court of Pulaski County affirming a final workmen's compensation award of the Labor and Industrial Relations Commission. In his first three points he contends that there was insufficient "competent evidence in the record to warrant the Commission" in (1) "finding that the respondent had a pre-existing permanent partial disability"; (2) "finding that respondent is permanently and totally disabled"; and (3) "finding that if the respondent had a permanent total disability it resulted from the combination of a pre-existing heart disability and disability from the March 14, 1977 injury." In his last point he contends that "the Commission acted without and in excess of its powers in finding that the respondent is permanently and totally disabled and that the Second Injury Fund owes $15.00 per week for 100 weeks for disability sustained for a period prior to completion of payment of compensation by the Employer."

Plaintiff had worked as a pipefitter for approximately 25 years before suffering a back injury on March 14, 1977. He filed a claim against his employer, its insurer and the Second Injury Fund, alleging prior disability because of a heart condition. The commission found that he suffered from preexisting disability due to his heart condition; that his back injury resulted in a 25% permanent disability to his body as a whole; and that he is permanently and totally disabled as a result of a combination of the heart condition and the back injury.

The commission ordered that the employer and insurer pay $95 per week for 40 weeks for temporary total disability, pay $80 per week for 100 weeks for permanent partial disability and pay certain medical expenses. The Second Injury Fund was ordered to pay $15 per week for the 100 weeks that plaintiff receives permanent partial disability benefits from the employer and insurer, and thereafter pay $95 per week for life for permanent total disability.

The provisions of the award in question here were initially entered by Chief Administrative Law Judge James H. Wesley. The facts on which the award was based were carefully detailed by Judge Wesley and his findings were adopted by the commission. Our review, of course, is of the commission's award. Wilhite v. Hurd, 411 S.W.2d 72, 76 (Mo.1967). We modify an award of the commission when it is not supported by substantial evidence or when it is clearly contrary to the overwhelming weight of the evidence. Malcom v. La-Z-Boy Midwest Chair Company, 618 S.W.2d 725, 726 (Mo.App.1981). The commission judges the credibility of witnesses and we do not substitute our view of the facts for those found by the commission. Id. With those guidelines in mind, we consider appellant's first point.

A prerequisite for recovery from the Second Injury Fund under § 287.220, RSMo 1969, is a "previous disability". It is not necessary under § 287.220 that the previous disability be due to an injury, but it must be disability to work, that is "industrial disability" or loss of earning capacity. Hettenhausen v. Gene Jantzen Chevrolet, 499 S.W.2d 785, 786 (Mo.1973); Wilhite v. Hurd, supra, 411 S.W.2d at 77.

Plaintiff has suffered from heart problems since 1964. He testified that before his back injury he was able to do his job and "everything that other pipe fitters did". However, there was evidence that because of plaintiff's heart condition his physician thought, and advised plaintiff before his back injury, that he should not do this type of work. The doctor stated that on April 26, 1976, he considered plaintiff "incapacitated" for this type work. Again on the 25th of August, 1976, he advised plaintiff to "quit hard work". The doctor said that when he saw plaintiff on March 3, 1977, plaintiff's condition, as to the type of work he should do, "was relatively unchanged". The doctor was of the same opinion on March 30, 1977. The doctor testified that while plaintiff could physically do manual labor before his back injury, it was not advisable because of the risk of heart problems, including death. There was evidence that before the back injury plaintiff had been hospitalized "six or seven times" as a result of chest pains due to his heart problems; that he was off work a period of several weeks each time and that because of his heart condition he was taking medication.

The prior disability must be such as to partially disable the claimant from work or to impede his labors. Meilves v. Morris, 422 S.W.2d 335, 338 (Mo.1968). Infirmities which cause an employee to do less work or to work only part time may be industrially disabling. Id. That plaintiff could do the job does not establish that he was a completely healthy person with no disability which impeded his labor or earning power prior to the injury. Jockel v. Robinson, 484 S.W.2d 227, 230-231 (Mo.1972). Plaintiff's heart condition existed at the time of his back injury. His heart condition was frequently disabling; it made his work dangerous to his health, and caused him to lose work. We believe this constituted sufficient competent evidence to support the commission's finding that plaintiff suffered an industrial disability. See Jockel v. Robinson, supra, 484 S.W.2d at 231-232; Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169, 173 (Mo.1970). Point one is denied.

Appellant contends in his second point that there was not sufficient competent evidence to warrant the commission finding that plaintiff was permanently and totally disabled. Section 287.020(7), RSMo Supp. 1975, defines total disability as "inability to return to any employment and not merely ... inability to return to the employment in which the employee was engaged at the time of the accident." Appellant contends plaintiff is employable, pointing out that he has not sought rehabilitation; he trims bushes and works in his garden and has driven an automobile. While those are matters to be considered, and we assume the commission did consider them, we do not believe they are conclusive and establish that plaintiff is not totally disabled.

Missouri court decisions interpreting that statute state that "inability to return to any employment" means that the employee is unable to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. Vogel v. Hall Implement Co., 551 S.W.2d 922, 926 (Mo.App.1977); Groce v. Pyle, 315 S.W.2d 482, 490 (Mo.App.1958). See also Maddux v. Kansas City Public Service Co., 111 S.W.2d 208, 212 (Mo.App.1937). Any employment means any reasonable or normal employment or occupation; it is not necessary that the employee be completely inactive or inert in order to meet this statutory definition. Vogel v. Hall Implement Co., supra, 551 S.W.2d at 926, Groce v. Pyle, supra, 315 S.W.2d at 490. Apparently the central question is whether any employer in the usual course of business...