Lexow v. Boeing Co.

• Decision Date: 11 May 2021
• Docket Number: No. ED108853,ED108853
• Citation: Lexow v. Boeing Co., No. ED108853 (Mo. App. May 11, 2021)
• Parties: MICHAEL A. LEXOW, Claimant/Appellant, v. BOEING CO., Employer, and TREASURER OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent.
• Court: Missouri Court of Appeals

MICHAEL A. LEXOW, Claimant/Appellant, v. BOEING CO., Employer,andTREASURER OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent.

No. ED108853

Missouri Court of Appeals Eastern District DIVISION ONE

May 11, 2021

Appeal from the Labor and Industrial Relations Commission

OPINION

Michael A. Lexow("Claimant") appeals the decision of the Labor and Industrial Relations Commission(the "Commission") reversing the award of the Administrative Law Judge (the "ALJ") and denying him permanent total disability ("PTD") benefits.¹Claimant raises threepoints on appeal.In his first point, Claimant argues the Commission erred in reversing the ALJ's award on the grounds that Claimant failed to meet his burden under § 287.220.3 because the expert witnesses considered non-qualifying disabilities in forming their opinions when there was substantial and competent evidence that Claimant was permanently and totally disabled even if non-qualifying disabilities were excluded.²In his second point, Claimant argues the Commission misinterpreted and misapplied § 287.220.3 because the statutory language and framework allows for PTD benefits as a result of the combination of his primary injury and non-qualifying preexisting disabilities.Lastly, in his third point, Claimant argues the Commission erred in failing to consider his 2003 workers' compensation claim, involving an occupational disease that resulted from repetitive trauma, as a qualifying disability under § 287.220.3.We reverse and remand.

I.Factual and Procedural Background

Claimant is a 61-year-old male who attended a technical college and earned a certificate in aircraft maintenance, which permits him to inspect, repair, and maintain aircraft.Claimant served in the United States Air Force, where he performed aircraft and jet engine maintenance from 1976 to 1979.He was honorably discharged with no service-connected disability.After leaving the Air Force, Claimant was employed by four different employers to maintain and repair aircraft and aircraft equipment.

In 2003, Claimant developed bilateral carpal tunnel syndrome ("CTS") as a result of repetitive work he performed for his employer at the time.In 2004, he underwent bilateral carpaltunnel release surgeries.Claimant continued to experience weakness and had limited endurance and dexterity.Claimant settled with his then-current employer for 17.5% permanent partial disability ("PPD") of the left wrist, 18.6% PPD of the right wrist, and a 10% load or multiplicity factor was applied.

Claimant began his employment with Boeing Company("Employer") in October of 2008 and served as an aircraft simulation technician.His position was physically demanding, requiring heavy lifting, hand-intense activities, extended kneeling and squatting, use of multiple hand tools, and overhead work.After working for Employer for seven years, Claimant developed increasing numbness and tingling in his dominant left arm and hand in November of 2015.In April of 2016, Claimant was diagnosed with left CTS.Claimant filed a workers' compensation claim against Employer after being diagnosed, which was settled for 17.5% PPD of the left wrist ("primary injury").In addition, Claimant filed a claim against the Second Injury Fund (the "Fund") alleging that he is permanently and totally disabled as a result of the combination of his numerous preexisting conditions and his primary injury sustained while working for Employer.Claimant's preexisting conditions include injuries to his right shoulder, left shoulder, left biceps, left and right wrists (bilateral CTS), left knee, low back, neck, heels, and eyesight.

The claim against the Fund was heard before the ALJ on March 14, 2019.On June 29, 2019, the ALJ issued her award ruling in favor of Claimant, finding "Claimant is permanently and totally disabled due to the combination of his primary and preexisting injuries and disabilities."The Fund timely filed an appeal of the award with the Commission.

The issue before the Commission was whether all of Claimant's claimed preexisting disabling conditions, including those that do not satisfy § 287.220.3(2)(a)a, could be considered in determining Claimant's eligibility for PTD benefits under the amended statute.On March 20,2020, in a two-to-one decision, the Commission reversed the ALJ's award and found that Claimant's evidence failed to satisfy the standard set forth in § 287.220.3.

The Commission reviewed Claimant's preexisting conditions and rendered a finding as to each of his preexisting conditions: 50% (116 weeks) PPD of the right shoulder; 15% (34.8 weeks) PPD of the left shoulder; 15% (33.3 weeks) PPD of the left bicep; 18.6% (32.55 weeks) PPD of the right wrist and 17.5% (30.625 weeks) PPD of the left wrist (bilateral CTS); 55% (88 weeks) PPD of the left knee; 20% (80 weeks) PPD of the low back; 30% (120 weeks) PPD of the neck; 3.5% (at the 150-week level or 5.25 weeks) PPD of the plantar fasciitis (heel) of each foot; and found no preexisting PPD referable to his vision.As to the primary injury, the Commission found that Claimant suffered 17.5% PPD of the left wrist.

The Commission summarized that Claimant believes he remains incapable of returning to or sustaining work in the open labor market owing to his bilateral shoulder, bilateral hand, back, neck, left knee, and feet problems.In his deposition testimony, Claimant's medical expert, Dr. David Volarich("Dr. Volarich"), opined that Claimant was permanently and totally disabled as a result of the primary injury in combination with his preexisting 2003 bilateral CTS, right shoulder, left shoulder, left knee, left bicep, bilateral heels, low back, and neck disabilities.Dr. Volarich made clear that his opinion that Claimant is permanently and totally disabled was formed with consideration of his numerous aforementioned preexisting conditions.Ms. Delores Gonzalez("Ms. Gonzalez"), the vocational rehabilitation counselor, opined Claimant is not currently capable of any competitive work for which there is a reasonably stable job market due to the combination of the effects of his primary injury and his preexisting conditions.Like Dr. Volarich, Ms. Gonzalez also factored in Claimant's aforementioned preexisting conditions into her vocational opinion.

In strictly construing § 287.220.3, the Commission's majority concluded that, in order to satisfy the new amended statutory test, a claimant must prove that his or her permanent total disability results from a combination of the primary injury and a single, preexisting disability that meets the 50-week threshold and categorical criteria under § 287.220.3(2)(a)a.The Commission also concluded that "it is necessary to identify, with specificity, which of an employee's identified preexisting disabling conditions are claimed to combine with the primary injury to render the employee permanently and totally disabled" because otherwise it "would be permitted to include all identified preexisting disabilities in our analysis, without regard to whether they individually satisfy the enumerated criteria under § 287.220.3[(2)](a)a."

In applying the statute to Claimant's case, the Commission found that Claimant's preexisting right shoulder, left knee, low back, and neck injuries were the only conditions that satisfied the 50-week threshold under § 287.220.3(2)(a)a.However, the Commission found that there was no evidence showing Claimant"is unable to compete for work in the open labor market owing to the effects of the primary left CTS injury in combination with only his preexisting disabling right shoulder, neck, low back, or left knee conditions."(Emphasis in original).Therefore, the Commission held Claimant failed to establish that he was permanently and totally disabled as a result of a combination of the effect of his primary injury and a single, qualifying preexisting disability.³

This appeal follows.

II.Standard of Review

Pursuant to article V, section 18 of the Missouri Constitution, our review of the Commission's decision is to determine whether it is "supported by competent and substantial evidence upon the whole record."Mo. Const. art. V, § 18.Additionally, § 287.495.1 provides that this Court:

[S]hall 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.

We review the findings of the Commission and not those of the ALJ; in doing so, we defer to the Commission's findings as to weight and credibility of testimony and are bound by its factual determinations.Patterson v. Cent. Freight Lines, 452 S.W.3d 759, 764(Mo. App. E.D.2015)."The Commission's findings will not be disturbed unless they are unsupported by competent and substantial evidence on the whole record."Thompson v. Treasurer of Missouri, 545 S.W.3d 890, 893(Mo. App. E.D.2018)."In reviewing the Commission's decision, we view the evidence objectively and are not required to 'view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award.'"Harris v. Ralls County, 588 S.W.3d 579, 594(Mo. App. E.D.2019)(quotingWilson v. Progressive Waste Sols. of Mo., Inc., 515 S.W.3d 804, 807(Mo. App. E.D.2017)).

Although we defer to the Commission on issues concerning credibility and the weight given to conflicting evidence, we independently review the Commission's interpretation and application of the law de novo without deference to the Commission's findings.Thompson, 545 S.W.3d at 893;Williams v. Treasurer of Missouri, 598 S.W.3d 180, 186(Mo. App. E.D.2020).Reversal on the basis that the Commission's award is unsupported by sufficient competent evidence is warranted only in rare...