Loven v. Greene County

Decision Date21 November 2001
Docket NumberSD23910
PartiesTommy Loven, Claimant/Respondent v. Greene County, Employer/Respondent and Missouri State Treasurer, as Custodian of the Second Injury Fund, Additional Party/Appellant. SD23910 Missouri Court of Appeals Southern District
CourtCourt of Appeal of Missouri (US)

Counsel for Respondent: William Ringer and Randy C. Alberhasky

Opinion Summary: None

Barney, C.J., and Rahmeyer, J., concur.

Phillip R. Garrison, Judge

The decisive issue in this workers' compensation case is whether Tommy Loven's ("Employee's") morbid obesity was a preexisting permanent partial disability and constitutes the basis for an award against the Second Injury Fund (the "Fund"). Under the facts here, we hold that the Labor and Industrial Relations Commission (the "Commission") erred in entering an award against the Fund.

Employee sustained a back injury on July 29, 1997 (the "back injury"), when he fell while turning over a 200 pound truck tire for the purpose of repairing it for his employer, Greene County, Missouri ("County"). At that time, he was almost forty-eight years of age, 6'1" tall, and weighed between 375 to 390 pounds. Testimony indicated that Employee had been morbidly obese most of his adult life. He said that he had tried to diet for years, but that the only time he was successful at it was his early twenties when his weight went from 300 to 210 pounds. During the seven years prior to Employee's injury, he said that he weighed from 360 to 390 pounds.

Employee completed the eleventh grade and later obtained his GED. Between the time he quit school and the back injury, he worked as a welder; leased a gas station and did mechanical work; serviced cars; fixed flat tires and sold gas; was a dry grocery order filler requiring constant lifting of up to 80 pounds; fixed truck and heavy road equipment tires that required lifting tires and wheels that weighed up to 220 pounds; worked as an iron worker where he had to work up to 120 feet off the ground and either walk or crawl on structural steel; worked on a ranch where he worked seven days a week for seven months and "pull[ed]" over 400 calves weighing up to 120 pounds; leased and ran a pool hall; and was a security guard which involved going in and out a door and up and down steps 200 times per day.

Employee worked for the County from 1976 until April 1979 fixing flat tires on road graders, dump trucks and tractors. Employee was again hired by the County in 1990 and worked during the months of April through November for two years mowing right of ways. After two years he "got on full time" with the County and stayed in its employment until the injury that resulted in this workers' compensation claim. Initially, that full time work was on the "bridge crew" building and lifting, with the help of another person, concrete forms weighing 250 to 300 pounds, as well as a lot of bending, stooping, and overhead work. Later, he operated a brush cutter for the County, and eventually became its "tire man" which included fixing tires on trucks and heavy equipment as well as mechanical work. This work included crawling under vehicles, climbing up and down out of road graders and diesel trucks, continual stooping, and lifting of tires and equipment weighing from 50 to 300 pounds. He described his work as "very physical, manual labor." Once he fixed a flat on the edge of a bridge where he had to tie a "lanyard around [his] waist and hold onto the tire until they helped [him] bring it away from the edge of the bridge."

During his employment with the County he worked full time, almost never missed work, worked numerous ten hour days, and worked lots of overtime. In fact, during one winter, he worked a thirty-seven hour shift. He also said that there had been times when his size helped him do his job, and that one of the reasons he was hired by the County was because of his ability to lift heavy objects. He described how his size helped in his job with the County by saying, "[w]hen you're going in a 20-foot ditch and you've got a flat grader tire, a little man, a light-frame man, can't get that tire out of that ditch and up on top of the road. I always could. And that was one of the reasons I was hired the second time with Greene County, is because I was able to do the job."

The ALJ found that Employee was totally and permanently disabled, but that such disability did not all result from the back injury sustained on July 29, 1997. Instead, the ALJ found that the total, permanent disability resulted from a combination of the back injury and the preexisting morbid obesity, and awarded Employee 120 weeks ("30% BAW") of permanent partial disability compensation from the County, and permanent total disability compensation at the rate of $310.11 per week for his lifetime from the Fund. The Fund sought review by the Commission. The Commission affirmed the ALJ's award and incorporated it into its Final Award. The Fund appeals.

In reviewing a workers' compensation award, we review the findings of the Commission and not those of the ALJ. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 852 (Mo.App. S.D. 1995). Where, as here, the Commission incorporates the ALJ's award and decision, we consider the findings and conclusions of the Commission as including the ALJ's award. Kaderly v. Race Bros. Farm Supply, 993 S.W.2d 512, 514 (Mo.App. S.D. 1999). Our review is a two-step process. Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo.App. W.D. 1995). We first examine the whole record, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the award, in order to determine if the record contains sufficient competent and substantial evidence to support the award. Id. If there is sufficient competent and substantial evidence to support the award, we then determine if the award is against the overwhelming weight of the evidence, and in doing so we consider all the evidence, including that which is opposing or unfavorable to the award, in the light most favorable to the award. Id. In our review, we are mindful that we may not substitute our judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission. Id. Its interpretation and application of the law, however, are not binding on this Court and fall within our realm of independent review and correction. Id. Where the findings of ultimate fact are reached not by a process of natural reasoning from the facts alone, but rather by application of the law, it is a conclusion of law and subject to reversal by the court. Id.

In the first of its three points on appeal, the Fund contends that the Commission erred in awarding Employee permanent and total disability benefits from the Fund because Employee failed to prove that his obesity was a preexisting permanent partial disability of such seriousness as to constitute a prior hindrance or obstacle to employment or to obtaining reemployment if he became unemployed.

Some historical review is a necessary prelude to a discussion of liability of the Fund. The purpose of the Fund is twofold: to encourage the employment of individuals who are already disabled; and to relieve an employer or his insurer of liability for the previously disabled employee's total and permanent disability where that disability is not specifically attributable to an injury suffered during the period of employment with that employer. Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 793, n. 2 (Mo.App. S.D. 1992), citing Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo.App. E.D. 1987). Said another way, the "Fund was established in order to assure employers that the hiring of workers with a permanent partial disability would not expose the employer to liability for a greater amount of disability than that which resulted from a compensable work-related injury." Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo.App. E.D. 1995). See also Meilves v. Morris, 422 S.W.2d 335, 338 (Mo. 1968).

The version of Section 287.220.1, RSMo, in effect prior to 1993, provided the statutory basis for liability by the Fund. It provided that in order to recover from the Fund, a claimant must have had a "permanent partial disability whether from compensable injury or otherwise." That requirement was judicially interpreted as requiring the establishment of a preexisting "industrial disability" to insure that 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 (Mo. 1967).

In Wilhite, the Missouri Supreme Court said that the preexisting permanent partial disability requirement for liability by the Fund "relates to disability to work and means 'industrial disability' or loss of earning capacity, rather than physical impairment as such." 411 S.W.2d at 77. See also Searcy, 894 S.W.2d at 177, citing Carron v. Ste. Genevieve Sch. Dist., 800 S.W.2d 64, 68 (Mo.App. E.D. 1990) ("An industrial disability is a disability adversely affecting a claimant's earning capacity or ability to work, rather than a mere physical impairment as such."); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 577 (Mo.App. E.D. 1985)("[P]reexisting disability" which invokes liability by the Fund "must be such as to partially disable the claimant from work and impede his labors," and "must relate to a disability to work, an industrial disability affecting earning capacity, rather than physical impairment as such."). In Meilves, 422 S.W.2d at 339, the Missouri Supreme Court held that a claimant failed to establish a claim against the Fund when she failed to produce substantial evidence of any industrial disability prior to the work-related injury. See also Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 59 (Mo.App E.D. 1996)(Under the "industrially disabling" standard,...

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