Lawrence v. Joplin R-VIII School Dist., R-VIII

• Decision Date: 25 June 1992
• Docket Number: No. 17845,R-VIII,17845
• Citation: 834 S.W.2d 789
• Parties: Elva LAWRENCE, Claimant-Appellant, v. JOPLINSCHOOL DISTRICT, Employer-Respondent, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

Page 789

834 S.W.2d 789

Elva LAWRENCE, Claimant-Appellant, v.JOPLIN R-VIII SCHOOL DISTRICT, Employer-Respondent and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent.

No. 17845.

Missouri Court of Appeals,

Southern District,

Division Two.

June 25, 1992.

Glenn R. Gulick, Jr., Joplin, for claimant-appellant.

Ronald G. Sparlin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for employer-respondent.

Kevin Hays Dunaway, Springfield, for respondent.

SHRUM, Judge.

ClaimantElva Lawrence appeals from a final award entered by the Labor and Industrial Relations Commission in her workers' compensation claim against her employer, Joplin R-VIII School District; its insurer, Maryland Casualty Company; and the custodian of the Second Injury Fund.The Commission found the claimant to be permanently partially disabled, a condition attributed in part to her work-related accident and it found she had a pre-existing disability that entitled her to compensation from the Second Injury Fund.The Commission denied her claim to a permanent and total disability rating.The claimant appeals; we affirm.

FACTS

The claimant, born in July 1935, finished the tenth grade.She married at age 15 and did not work until her husband's death in 1979.In 1979, she received her GED and began work for a Joplin wholesale stationery company filling orders, packing boxes, and loading trucks.She next worked at a hospital as a purchasing clerk.She began work as a school bus driver for the Joplin R-VIII School District around 1983 and continued that employment until January 6, 1988, when she slipped and fell at work, sustaining injuries.

Following the accident she filed a claim against her employer, its insurer, and the Second Injury Fund, alleging she was permanently and totally disabled.She stated that her previous disability consisted of "systemic illness, diabetes--1982 fusion in the neck."

A hearing was conducted before Chief Administrative Law Judge Robert H. House(ALJ), whose detailed findings of fact and rulings of law were adopted by the Commission in its affirmance of his award.We quote pertinent portions of those findings and conclusions.

"In determining whether Claimant is permanently and totally disabled, I must initially assess Claimant's credibility as a witness....I have difficulty believing Claimant's testimony that she had no physical problems or difficulties in working after the 1981 surgery which resulted in a fusion of her neck at C-5 and C-7.I also find it difficult to believe that she had no difficulties at work caused by her pre-existing problems of hypertension, emphysema, and diabetes....I find it difficult to believe Claimant's testimony of her current complaints in light of Drs. Vale's and Toma's objective findings when compared to Claimant's subjective complaints....

"Thus, in light of my review of all the medical evidence and my doubts concerning Claimant's credibility as to her physical condition prior to and after her accident, it is my opinion that if Claimant is currently permanently and totally disabled it is based upon a combination of the [work]-related accident, her pre-existing disability, and the progression of her pre-existing diseases following her visit with Dr. Vale of November 17, 1988.Thus, there is insufficient evidence in the record to find that Claimant is permanently and totally disabled solely as a result of her work related injury.I find that Claimant has a current permanent partial disability of 65 percent to the body as a whole referable to her cervical spine.This includes 20 percent permanent partial disability for all cervical conditions existing prior to the January 26[sic], 1988, injury.Thus, employer-insurer is liable for 45 percent permanent partial disability to the body as a whole....[E]mployer-insurer is ordered to pay Claimant 180 weeks of compensation at the agreed upon compensate [sic] rate of $152.75 for a total of $27,495.00.

"Claimant also sought an award against the Second Injury Fund....It is clear from the record that Claimant had serious medical problems prior to her January 6, 1988, injury....As a result, I must find that Claimant's ability to work was diminished and that she was industrially disabled ¹ as a result of her pre-existing conditions....However, the medical evidence does not lead to the conclusion that Claimant is permanently and totally disabled as a result of the combination of her pre-existing disabilities and the current permanent partial disability found to be 45 percent of the body as whole in this award....[I]t is clear that Claimant's condition has progressively worsened over time.I find more credible the opinion of Dr. Folck that the worsening in Claimant's condition is based upon the progression of her pre-existing diseases.I cannot find from the record that that worsening in those pre-existing diseases was related to the accident....Consequently, I find that Claimant suffered a pre-existing industrially disabling disability in the amount of 20 percent to the body as a whole referable to Claimant's neck and 5 percent to the body as a whole referable to Claimant's diabetes, hypertension, peripheral neuropathy, and emphysema for which Second Injury Fund is liable under Section 287.220.That disability when combined with the prior disabilities results in a disability greater than either would be separately.Consequently, the Second Injury Fund is liable for the following: pre-existing disability to the body as a whole referable to the neck at 20 percent of the body as a whole or 80 weeks of compensation; and pre-existing disability for Claimant's pre-existing diabetes, hypertension[,] peripheral neuropathy[,] and emphysema five percent to the body as a whole for 20 weeks of compensation.Thus, the total weeks of compensation for Second Injury Fund liability would be 280 weeks.I believe that a 15 percent loading factor should be used against the Fund, which would require the Fund to pay for 42 weeks of compensation at the agreed upon compensation rate of $152.75 for a total of $6,415.50."

The award included an order that the employer-insurer pay the claimant's medical bills of $1199.Additional facts will be set out as needed in the course of the discussion of the claimant's points on appeal.

DISCUSSION AND DECISION

In her first point on appeal, the claimant challenges the conclusion that she"was not totally and permanently disabled as a result of her occupational accident and any pre-existing disability" as "contrary to the facts found by the Commission" and "not supported by competent evidence."She argues that the allegedly erroneous conclusion resulted from the Commission's failure to apply the appropriate test to determine total and permanent disability.

We summarize the sub-points of the claimant's point relied on and her argument: The Commission's determination of 80.5 percent permanent partial disability to the body as a whole cannot be reconciled with the Commission's finding that the claimant was totally disabled at the time of the hearing because of a combination of the work-related accident, her pre-existing disability, and the expected progression of her pre-existing diseases subsequent to the accident.As a result, the argument goes, we must conclude the Commission gave no consideration to the progressive nature of her pre-existing diseases and her advanced age and lack of job skills, training, and experience, all of which combined to render her not employable in the competitive open labor market.

The claimant asserts that the "legal principles applicable to this case" are contained in the following passage from Isacc v. Atlas Plastic Corp., 793 S.W.2d 165(Mo.App.1990):

The test for permanent total disability is whether, given the employee's situation and condition, he is competent to compete in the open labor market.Laturno v. Carnahan, 640 S.W.2d 470, 472[3, 4](Mo.App.1982).This test measures the worker's prospects for returning to employment.Patchin v. National Super Markets, Inc., 738 S.W.2d 166, 167(Mo.App.1987).Total disability means the inability to return to any reasonable or normal employment.It does not require that the employee be completely inactive or inert.Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922(Mo.App.1982).The central question is whether any employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition.Id.

793 S.W.2d at 166.Relying on Isacc and her reading of the record, the claimant argues that the Commission "could not properly have found employee to not be totally disabled ... without having first found that an employer in the usual course of business would reasonably be expected to hire Elva Lawrence."Based on the record before us, the claimant argues, this court should determine, as a matter of law, that she was totally and permanently disabled.

The claimant appears to misread portions of the Commission's findings.Contrary to the claimant's assertion, the Commission did not find that the claimant was totally and permanently disabled at the time of hearing.Rather, it found that "if Claimant is currently permanently and totally disabled it is based upon a combination of the [work]-related accident, her pre-existing disability, and the progression of her pre-existing diseases following her visit with Dr. Vale of November 17, 1988(emphasis added)."

Although the Commission recognized there was evidence from which it might have concluded the claimant was totally disabled, it rightly focused on the critical issue of causation.Thus the Commission stated, "[T]here is insufficient evidence in the record to find that Claimant is permanently and totally disabled solely as a result of her work related injury."And, "[T]he medical evidence does not lead to the conclusion that Claimant is permanently and totally disabled as a result of the...