Lewis v. Kansas Univ. Med. Ctr.

• Decision Date: 06 December 2011
• Docket Number: No. WD 73817.,WD 73817.
• Citation: 356 S.W.3d 796
• Parties: Selma LEWIS, Appellant, v. KANSAS UNIVERSITY MEDICAL CENTER, Respondent,Treasurer of the State of Missouri–Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

356 S.W.3d 796

Selma LEWIS, Appellant,

v.KANSAS UNIVERSITY MEDICAL CENTER, Respondent,Treasurer of the State of Missouri–Custodian of the Second Injury Fund, Respondent.

No. WD 73817.

Missouri Court of Appeals, Western District.

Dec. 6, 2011.

Thomas Hill, Overland Park, KS, for Appellant.

Joseph McMillan, Lenexa, KS, for Respondent, KS University Medical Center.

Benita Seliga, Kansas City, MO, for Respondent, Treasurer of the State of MO.

Before ALOK AHUJA, P.J., THOMAS H. NEWTON, and JAMES EDWARD WELSH, JJ.

JAMES EDWARD WELSH, Judge.

Selma Lewis appeals the Labor and Industrial Relations Commission's decision denying her claim against the Second Injury Fund for permanent total disability benefits.¹ The Commission found that Lewis was not permanently and totally disabled because she was not unemployable in the labor market based upon the work accident and her preexisting disabilities and because her inability to be employed was due to a subsequent deterioration of her preexisting conditions, which occurred after the work accident in this case. Lewis contends that the Commission's decision was not supported by substantial and competent evidence. In particular, she asserts that under the case law of Kuykendall v. Gates Rubber Company, 207 S.W.3d 694 (Mo.App.2006), and Garibay v. Treasurer of Missouri, 930 S.W.2d 57 (Mo.App.1996), the Commission could not arbitrarily cast aside or disregard the undisputed testimony of the vocational expert that Lewis was unemployable in the open labor market. We affirm.

Lewis began working for Kansas University Medical Center (KU Medical) in August 2001 as a health care technician. On October 6, 2001, Lewis was working at KU Medical, and, while assisting a co-worker move a patient up in bed, Lewis felt a pop in her back. On October 11, 2001, Lewis began experiencing sharp pains and was admitted to the hospital at KU Medical. Due to Lewis's ongoing complaints about lower back pain, Lewis underwent an MRI of the thoracic and lumbar spine. The MRI of the lumbar region revealed “in situ desiccatory change” at L4/5 with a central disc bulge contacting the L5 nerve roots. Lewis was released from the hospital on October 16, 2001, with a diagnosis of lumbar and thoracic sprains.

Lewis returned to work on October 29, 2001. On May 29, 2002, Dr. Edward Wilson released Lewis from his care saying that she reached maximum medical improvement. Wilson stated at that time that Lewis “may continue employment, with avoidance of loads of greater than 20 pounds and repetitive bending or twisting activities.” Wilson also provided Lewis with a two percent permanent partial impairment rating and diagnosed her with having a lumbar strain and nerve root irritation. Lewis continued to work with those restrictions entering data, performing secretarial work, and monitoring suicidal patients until her employment with KU Medical ended on February 6, 2003. Lewis never returned to any type of employment after February 6, 2003.

Lewis filed a claim for compensation against the Second Injury Fund for the October 6, 2001 work injury. Lewis alleged that her preexisting disabilities combined with the alleged October 6, 2001 injury rendered her permanently and totally disabled. An administrative law judge (ALJ) held a hearing on this matter on August 25, 2010.

Lewis introduced into evidence numerous medical records outlining her alleged work injuries and her preexisting diabetic and coronary artery diseases. Lewis presented the deposition testimony of Dr. P. Brent Koprivica and Mary Titterington, a vocational rehabilitation counselor. In her deposition, Mary Titterington concluded that Lewis was permanently and totally disabled and was not employable in the open labor market.

Although the parties agreed that Lewis sustained a job-related accident on October 6, 2001, the ALJ found that Lewis was not rendered permanently and totally disabled as a result of the October 6, 2001 accident even when considered in combination with her preexisting disabilities. The ALJ disagreed with Lewis's vocational expert, Mary Titterington, who found Lewis unemployable in the open labor market based on Lewis's work accident and Lewis's coronary artery disease and diabetes. The ALJ found that Lewis's diabetic condition, as it preexisted the October 6, 2001 work accident, was “a hindrance or obstacle to her employment” and noted that Lewis had missed work due to complications of her diabetic condition. The ALJ found, however, that Lewis's coronary artery disease, as it preexisted the October 6, 2001 work accident, was not “a hindrance or obstacle to performing her job duties” and noted that Lewis denied having hindrances or obstacles to performing her job duties after a stent placement. The ALJ concluded that, based upon Lewis's diabetic condition alone as it existed prior to October 6, 2001, Lewis sustained 20% permanent partial disability body as a whole.

Further, the ALJ found that Lewis was not unemployable in the open labor market based upon the October 6, 2001 work accident and preexisting diabetes. The ALJ found that Lewis worked full-time in the open labor market beginning October 29, 2001, until February 6, 2003. The ALJ concluded that Lewis demonstrated that she could work sedentary positions by performing data entry, answering phones, and monitoring suicidal patients for almost a year and a half after the work accident. The ALJ found that the duties Lewis performed after her work accident demonstrated her ability to work in the open labor market.

Finally, the ALJ concluded that the medical records along with Lewis's testimony established that Lewis's physical condition deteriorated since October 6, 2001. The ALJ found that Lewis was hospitalized in 2004 due to diabetic complications, that she was hospitalized in 2005 due to pericarditis, and that she had a neck condition that appeared to have deteriorated since 2002 to the extent that a surgeon offered a cervical fusion. Therefore, the ALJ said that Lewis's unemployability appeared to be from the subsequent deterioration of her conditions and not based upon the work accident and her preexisting conditions as they existed at the time of the work accident. The ALJ, therefore, denied Lewis's claim for permanent and total disability benefits against the Second Injury Fund.

Lewis filed an application for review with the Commission. The Commission affirmed the ALJ's award and decision and attached and incorporated by reference the ALJ's award and decision. Lewis appeals.

Our review of this matter is governed by section 287.495.1, RSMo 2000, which provides, in relevant part:

Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, 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.

Where the Commission affirms and adopts the administrative law judge's findings, we review the decision of the administrative law judge as adopted by the Commission. Dunn v. Treas. of Mo. as Custodian of Second Injury Fund, 272 S.W.3d 267, 271 (Mo.App.2008). This court reviews the Commission's award to determine whether it is “supported by competent and substantial evidence upon the whole record.” Mo. Const. art. V, sec. 18. An award is supported by competent and substantial evidence unless it is against the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222–23 (Mo. banc 2003).

In a claim for permanent total disability, “[t]he Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury.” Concepcion v. Lear Corp., 173 S.W.3d 368, 371 (Mo.App.2005). Section 287.020.6, RSMo Cum Supp.2010, defines the term “total disability” as the “inability to return to any employment and not merely [an] inability to return to the employment in which the employee was engaged at the time of the accident.” The test for permanent total disability is whether the worker is able to compete in the open labor market. ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo.App.2007). “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.” Brown v. Treas. of Mo., 795 S.W.2d 479, 483 (Mo.App.1990). “ ‘Any employment’ means any reasonable or normal employment or occupation.” Mell v. Biebel Bros., Inc., 247 S.W.3d 26, 29 (Mo.App.2008). “The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.” ABB Power, 236 S.W.3d at 48; see also Molder v. Mo. State Treas., 342 S.W.3d 406, 411 (Mo.App.2011). Lewis has the burden to establish permanent total disability by introducing evidence to prove her claim. Clark v. Harts Auto Repair, 274 S.W.3d 612, 616 (Mo.App.2009).

In reaching its decision that Lewis was not permanently and totally disabled, the Commission disagreed with Lewis's vocational expert, Mary Titterington, who found Lewis unemployable in the open labor market based on Lewis's work accident and Lewis's coronary artery disease and diabetes. Lewis contends that the Commission's rejection of Titterington's testimony was in contravention of Kuykendall v. Gates Rubber Company, 207 S.W.3d 694 (Mo.App.2006), and Garibay v. Treasurer of Missouri, 930 S.W.2d 57 (Mo.App.1996). We disagree.

In Kuykendall, when discussing the Commission's rejection of medical...