Lorentz v. Missouri State Treasurer

• Decision Date: 25 April 2002
• Docket Number: No. 24308.,24308.
• Citation: 72 S.W.3d 315
• Parties: Alfred Leon LORENTZ, Jr., Respondent, v. MISSOURI STATE TREASURER, as custodian of the Second Injury Fund, Appellant.
• Court: Missouri Court of Appeals

72 S.W.3d 315

Alfred Leon LORENTZ, Jr., Respondent, v. MISSOURI STATE TREASURER, as custodian of the Second Injury Fund, Appellant.

No. 24308.

Missouri Court of Appeals, Southern District, Division One.

April 25, 2002.

Jeremiah W. (Jay) Nixon, Attorney General, and Deborah A. Ledgerwood, Assistant Attorney General, Jefferson City, for appellant.

Lindell P. Dunivan, Farmington, for respondent.

ROBERT S. BARNEY, Chief Judge.

Alfred Leon Lorentz, Jr., ("Claimant") was injured on March 21, 1996, while working as an underground mining prospector for Doe Run Company ("Doe Run"). A piece of equipment weighing in excess of 800 pounds fell on him accidentally while he was drilling holes into rock to extract rock samples in an underground mine. He injured his ribs and low back. Claimant filed a claim against both Doe Run and the Missouri Second Injury Fund ("the Fund"). Doe Run and its insurer settled with Claimant for his claim based on 25 percent permanent partial disability of the body as a whole or 100 weeks. An Administrative Law Judge ("ALJ") found Claimant to be permanently and totally disabled as a result of the primary injury of March 21, 1996, but found the Fund was not liable for any pre-existing disability. The Labor and Industrial Relations Commission ("the Commission") agreed that Claimant was permanently and totally disabled, but ruled that it was due to a combination of his primary injury and pre-existing disabilities and reversed the decision of the ALJ which found no liability on the part of the Fund. The Commission then awarded Claimant weekly benefits for the rest of his life, or as modified by law, payable by the Fund.

In its sole point on appeal, the Fund contends the Commission erred in finding the Fund liable for permanent total benefits because the facts did not support the Commission's award. It argues that the overwhelming weight of the evidence supports a finding that if Claimant is permanently and totally disabled it is due to the 1996 injury alone.

Review is essentially a two-step process as described in Davis v. Research Med. Ctr., 903 S.W.2d 557, 570 (Mo.App. 1995). We must first determine whether the whole record, viewed in the light most favorable to the award of the Commission, contains sufficient competent and substantial evidence to support the Commission's award. Kizior v. Trans World Airlines, 5 S.W.3d 195, 199 (Mo.App.1999). If we find that it does, then we make a determination as to whether the award is against the overwhelming weight of the evidence. Id. In this second step, all of the evidence in the record is considered, including that unfavorable to the decision of the Commission. Id. "We defer to the Commission on issues encompassing the credibility of witnesses and the weight given to the testimony." Id. "Conflicts in the evidence are to be resolved by the Commission." Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo.App.1995). We independently review questions of law. "As always, the criteria should be applied liberally in favor of compensating the [Claimant]." Leutzinger v. Treasurer, 895 S.W.2d 591, 593 (Mo.App.1995).

For Second Injury Fund liability, a preexisting disability must combine with a disability from a subsequent injury in one of two ways: (1) the two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone and of itself; or (2) the preexisting disability combined with the disability from the subsequent injury to create permanent total disability.

Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App.1999); see § 287.220.1.¹ "Under this section, for either condition, the employer is liable only for that disability attributable to or resulting from the last injury." Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo.1966).

Given the factual scenario in the instant matter and the findings by the Commission that Claimant was permanently and totally disabled, "[i]t is with the second of these conditions that we are concerned." Id; see Leutzinger, 895 S.W.2d at 594; § 287.220.1.²

That portion of section 287.220.1 pertaining to permanent total disability reads, in pertinent part, as follows:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141.

"Any pre-existing injury which could be considered a hinderance [sic] to an employee's competition for employment in the open labor market should trigger Second Injury Fund liability." Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo.App. 1997); see Leutzinger, 895 S.W.2d at 593.

"Total disability is defined as the inability to return to any employment and not merely the employment in which the [Claimant] was engaged at the time of the accident." Id. at 526; § 287.020.7. "The test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment." Reese, 5 S.W.3d at 526; see Fletcher v. Second Injury Fund, 922 S.W.2d 402, 404 (Mo.App.1996). "The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this [Claimant] in his or her present physical condition." Reese, 5 S.W.3d at 526; see Carlson, 952 S.W.2d at 373.

With the foregoing principles in mind, we now review the record. It shows that Claimant has a high school education without any specific formal training except on the job training. Early in his career he assisted his family in the logging business then engaged in heavy, semi-skilled work and undertook other semi-skilled jobs. At one point he was self-employed as a martial arts instructor, a carpenter, a heavy equipment operator, worked for International Hat Company in silk screening on a production line, and had various other jobs in logging or construction that involved substantial physical exertion.

Immediately after the March 21, 1996, accident described previously, he was taken to Salem Memorial Hospital and was seen by an orthopedic physician, Dr. William K. Harris, and was diagnosed with rib fractures and was placed on restricted work. At that time x-rays taken revealed a spondylolisthesis at L5-S1. Claimant returned periodically to Dr. Harris with complaints of low back pain which, at the commencement of the following year, included radiation of pain down to his calf and left leg. He was then referred to Dr. Michael C. Chabot, a spine surgeon. Dr. Chabot noted Claimant walked around in a slow and cautious manner. He then recommended Claimant engage in physical therapy. Additionally, Claimant was sent by Doe Run to see Dr. John R. Wagner, another orthopedic surgeon.

Dr. Wagner described Claimant as having an excellent gait, although he observed Claimant had about a 30 percent loss of motion in the lumbar spine. Dr. Wagner felt, however, that Claimant's pre-existing pars defect and first degree spondylosisthesis, conditions which allowed vertebral slippage in the spinal column, existed prior to his 1996 injury. He opined that the injury itself caused the defect to become symptomatic. He also related that this was the cause of his current complaints of low back and lower extremity symptoms. After subsequent attempts of physical therapy failed, Dr. Wagner expressed the opinion that Claimant would be a candidate for surgery and he was sent to Dr. Michael F. Boland, another surgeon, for further evaluation.

Dr. Boland concurred with Dr. Wagner's evaluation that a lumbar fusion was necessary to alleviate Claimant's symptoms. After a myelogram and post-myelogram CT scan, Claimant underwent surgery on August 14, 1997, with Dr. Wagner performing the laminectomy and decompression of the nerve roots and Dr. Boland putting in cages.³ Bone grafting was also performed. However, by March of the following year Claimant continued to complain of pain. He was given a TENS unit which alleviated some of the pain. However, in Dr. Boland's report of April 29, 1998, he opined that Claimant's complaints were almost as bad as existed prior to surgery. By July of 1998, Dr. Wagner had concluded that no additional treatment was indicated and that Claimant had achieved maximum medical improvement. In depositions, Dr. Wagner rated Claimant's lumbar spine with a 25 percent permanent partial disability.

The Fund's vocational expert, Dr. James England—who is not a physician—opined in a letter received in evidence that Claimant had no vocational impairment, per se, prior to the primary 1996 injury. He agreed, however, that if Claimant's pain was as severe as he stated, that Claimant was unemployable in the open labor market.

Claimant's vocational expert, Mr. James Israel, testified at deposition that Claimant had a "vocational impairment" that "existed prior to the March 21, 1996," injury. He also related that Claimant's inability to resume substantial gainful activity was the result of "medically determined limitations from both his primary and...