Leutzinger v. Treasurer of Missouri, Custodian of Second Injury Fund, 65949

Decision Date31 January 1995
Docket NumberNo. 65949,65949
Citation895 S.W.2d 591
PartiesJohn LEUTZINGER, Claimant/Appellant, v. The TREASURER OF MISSOURI CUSTODIAN OF the SECOND INJURY FUND, Defendant/Respondent.
CourtMissouri Court of Appeals

Robert A. Bedell, King, Weier, Hockensmith & Sherby, P.C., St. Louis, for claimant/appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Vicky L. Anthony, Asst. Atty. Gen., Cape Girardeau, for defendant/respondent.

PUDLOWSKI, Judge.

Claimant appeals a decision of the Labor and Industrial Relations Commission denying him compensation from the second injury fund. The Commission erred by using the old "industrial disability" standard, with respect to previous conditions, instead of the new standard found in the legislature's 1993 revision and clarification of § 287.220.1. We reverse and remand.

Claimant was employed by Crystal City Public Schools as a maintenance worker from 1981 to 1989. On August 26, 1987, he was moving boxes underneath a stadium stage when he injured his back.

The record shows that claimant had suffered a number of previous injuries:

1938--sledding accident, causing a thigh laceration and scarring.

1957--viral meningitis, causing pain in his back and legs, and swelling in one leg with occasional residual pain; also causing him to miss one month of work.

1957--on the job back injury, causing him to miss two weeks of work.

1966--stomach ulcers.

1975--right foot caught in lawn mower. Part of one toe amputated.

1985--left hand injury.

March, 1987--strained back while pulling out gymnasium bleachers, causing him to miss four weeks of work.

In addition, there was evidence introduced by both parties' physicians that claimant was suffering from a degenerative hip disease, which predated the August, 1987, accident. However, the Commission found that the hip condition did not predate the August, 1987, accident because the physicians based their assessments solely upon examinations, reports, and x-rays taken after the August, 1987, accident.

The sole issue for the Commission was the liability of the second injury fund, because claimant had previously settled with his employer. The administrative law judge (ALJ) found, and the Commission adopted, an award denying claimant any recovery from the second injury fund. The Commission submitted the following reasons for this award:

In weighing all of the evidence, it is found that there is insufficient evidence supporting the claimant's contention of: 1) a preexisting left hip condition; and 2) of any preexisting industrial disability.

Additionally,.... In reviewing the evidence, it is found that there is no medical evidence stating that the combination of the claimant's preexisting physical problems with the disability resulting from the 8/26/87 injury is greater than the sum....

For all of the above reasons, the claim against the Second Injury Fund is denied. The remaining issue [partial v. total disability] is therefore moot.

In this appeal we review only questions of law and must defer to the Commission on all findings of fact. Section 287.495 RSMo 1986.

The Commission erred in interpreting and applying the law by using the outmoded "industrial disability" standard in evaluating claimant's preexisting injuries. A claimant must have a permanent "previous disability" in order to trigger section 287.220.1 RSMo Supp.1993 (the second injury fund statute). "Disability" had been interpreted to relate to "disability to work," and to mean an "industrial disability," or "loss of earning capacity." Wilhite v. Hurd, 411 S.W.2d 72, 77 (Mo.1967). It did not simply mean any preexisting medical condition. Id. If an employee could not establish that he had a preexisting disability which was either "industrial" or related to his "loss of earning capacity," he could not collect from the second injury fund.

We note that the term "industrial disability," which has required much interpretation and reinterpretation by the courts, never arises in the statute. Rather, the term itself was judicially created to insure that § 287.220 would be used only for those who had previously suffered a bona fide work-related disability. Wilhite, 411 S.W.2d at 77. This was in keeping with the purpose of § 287.220, which was enacted to encourage employment of disabled workers by reducing the liability of their employers. Meilves v. Morris, 422 S.W.2d 335, 338 (Mo.1968). If a claimant could not establish that his previous ailment was industrially disabling, § 287.220 would not apply. Therefore, the employer's liability would not be reduced, and the second injury fund would not be liable. Id.

The judicial construct of "industrial disability" was superseded on August 28, 1993, by the Missouri Legislature, when it amended § 287.220.1 to make it clear which preexisting conditions would be considered serious enough to trigger the statute. Laws of 1993, pp. 779-80. With respect to permanent partial disabilities, the statute now reads:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the...

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  • Smiley v. State
    • United States
    • Vermont Supreme Court
    • March 6, 2015
    ...expression of legislative intent to the contrary.” (quotation omitted)); Leutzinger v. Treasurer of Mo. Custodian of Second Injury Fund, 895 S.W.2d 591, 594 (Mo.Ct.App.1995) (“Statutory amendments to remedial statutory provisions ... should 117 A.3d 448be applied retroactively to pending ca......
  • Loven v. Greene County
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    ...the statute would be used only for those who had previously suffered a bona fide work-related disability. See Leutzinger v. Treasurer, 895 S.W.2d 591, 592 (Mo.App. E.D.1995), citing Wilhite v. Hurd, 411 S.W.2d 72, 77 In Wilhite, the Missouri Supreme Court said that the preexisting permanent......
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    ...the criteria should be applied liberally in favor of compensation of the claimant. Lorentz, 72 S.W.3d at 318; Leutzinger v. Treasurer, 895 S.W.2d 591, 593 (Mo.App. 1995). In its first point, Employer maintains that the ALJ and Commission lacked jurisdiction to render a final award "subject ......
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