Loven v. Greene County, 24987.

• Decision Date: 24 January 2003
• Docket Number: No. 24987.,24987.
• Parties: Tommy LOVEN, Claimant-Respondent, v. GREENE COUNTY, Employer-Appellant, and Missouri State Treasurer, as Custodian of the Second Injury Fund, Additional Party-Respondent.
• Court: Missouri Court of Appeals

94 S.W.3d 475

Tommy LOVEN, Claimant-Respondent, v. GREENE COUNTY, Employer-Appellant, and Missouri State Treasurer, as Custodian of the Second Injury Fund, Additional Party-Respondent.

No. 24987.

Missouri Court of Appeals, Southern District, Division One.

January 24, 2003.

William F. Ringer, Evans & Dixon, Kansas City, for Appellant.

Randy Charles Alberhasky, Springfield, for Respondent.

PHILLIP R. GARRISON, Judge.

Greene County ("the County") appeals from an award of the Labor and Industrial Relations Commission ("Commission") finding that Tommy Loven ("Employee") was permanently and totally disabled as a result of a work-related injury. This is the second time this case has been here. The first is reported in Loven v. Greene County, 63 S.W.3d 278 (Mo.App. S.D.2001) ("Loven I") and contains a much more detailed recital of the facts than is necessary here.

Employee sustained a back injury on July 29, 1997, when he fell while repairing a 200-pound truck tire for his employer, the County. At the time, he was almost forty-eight years old, 6'1" tall, and weighed between 375 and 390 pounds. Following that injury, Employee was examined and treated by several physicians, as was comprehensively described in Loven I. The evidence before the Commission included evidence of a subsequent incident that occurred in October 1997 ("the October 1997 occurrence") when Employee was changing a flat tire on his pickup, and experienced "some recurrence of back pain." The October 1997 occurrence was not referred to in Loven I because it was not an issue in that appeal.

The Commission initially entered an award ("Award One") against the Second Injury Fund ("the Fund") and the County, finding that Employee was totally and permanently disabled because of a combination of the July 1997 back injury and his pre-existing obesity. Consequently, the Commission ordered the County to pay benefits for permanent partial disability of thirty percent of the body as a whole, referable to the low back, and ordered the Fund to pay benefits for total permanent disability. Award One was reversed in Loven I, to the extent that it awarded benefits against the Fund, because of a lack of evidence that Employee's obesity was a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment. The case was remanded to the Commission for further proceedings, including consideration of whether Employee should receive an award for permanent total disability against the County.

On remand, the Commission entered an award ("Award Two") finding that the combination of Employee's obesity and his low back injury of July 1997 rendered him permanently and totally disabled, and it awarded benefits accordingly against the County. In doing so, the Commission found that Employee's "preexisting morbid obesity was asymptomatic until such time as he injured his lower back at work on July 29, 1997 and the work injury was a substantial factor in causing the obesity to become symptomatic and a disability." The Commission also noted that it had found Employee to be permanently and totally disabled in Award One, and that finding had not been disturbed in Loven I. The County appeals the award of permanent total disability benefits against it.

In reviewing a workers' compensation award, we review the findings of the Commission and not those of the administrative law judge ("ALJ"), unless the Commission incorporates the ALJ's award and decision, in which event we consider the findings and conclusions of the Commission as including the ALJ's award. Loven I at 282. The credibility of witnesses and the weight of the evidence are matters for determination by the Commission, and we will not supplant its judgment on the evidence with our own. Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo. App. W.D.1995).

The County contends that the Commission erred in finding that Employee was permanently totally disabled due to the July 1997 accident because there was not sufficient competent evidence in the record to warrant the making of the award based on the following: (1) there was no competent and substantial evidence upon which to base a determination that the July 1997 injury, in and of itself, caused the disability; (2) there was no medical opinion in the evidence containing any medical conclusion that Employee was permanently totally disabled solely due to the July 1997 accident; (3) all the medical opinions in evidence were consistent in stating that the permanent residuals from the July 1997 accident were permanent partial in nature as opposed to permanent total; and (4) the failure of the Commission to address the issue of permanent residual disability attributable to the non-occupational October 1997 occurrence, which was "almost identical" to the July 1997 injury as to the manner of occurrence and the body part injured, warrants a remand to consider the competent and substantial evidence.

The Commission found in Award One that Employee was permanently and totally disabled, a finding which the Commission in Award Two noted was not disturbed in Loven I. In Award Two, the Commission specifically found that the work-related injury in July 1997 was a substantial factor in causing Employee's disability. The County does not directly attack that finding or the fact that Employee is permanently and totally disabled. Rather, the County's first three contentions referred to above focus on an alleged lack of evidence to establish that the July 1997 accident "in and of itself" or "solely" caused Employee's permanent partial disability. These contentions are without merit for several reasons.

First, they are premised on an alleged lack of evidence that the July 1997 work-related injury caused Employee's permanent total disability. Contrary to this contention, the record contains evidence to support the Commission's finding. For instance, Dr. Andrew Myers ("Dr. Myers"), an examining physician, testified that in his opinion, Employee was permanently totally disabled as a result of that accident.

Second, under Section 287.020.2,¹ an injury is compensable if it is clearly work-related. That section explains that "[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability," and "[a]n injury is not compensable merely because work was a triggering or precipitating...