Massey v. Missouri Butcher & Cafe Supply, 65755

• Decision Date: 17 January 1995
• Docket Number: No. 65755,65755
• Citation: 890 S.W.2d 761
• Court: Missouri Court of Appeals
• Parties: Raymond MASSEY, Appellant, v. MISSOURI BUTCHER & CAFE SUPPLY, Respondent, and The Treasurer of Missouri, Custodian of the Second Injury Fund, Respondent.

Page 761

890 S.W.2d 761

Raymond MASSEY, Appellant, v. MISSOURI BUTCHER & CAFE SUPPLY, Respondent and The Treasurer of Missouri, Custodian of the Second Injury Fund, Respondent.

No. 65755.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 17, 1995.

Carrie Louise Kmoch, St. Louis, Jennifer A. Glancy, Jefferson City, for appellant.

Betsy Levit, St. Louis, for respondent Missouri Butcher & Cafe Supply.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for respondent Treasurer of Missouri, Custodian of Second Injury Fund.

Before SMITH, P.J., and PUDLOWSKI and WHITE, JJ.

WHITE, Judge.

Raymond Massey (claimant) appeals from a decision by the Labor and Industrial Relations Commission (Commission) denying his claim for permanent total disability. On appeal, claimant contends the Commission erred in finding he was not totally disabled because the uncontroverted evidence established he was unemployable on the open labor market. We hold the Commission's finding is supported by competent and substantial evidence. Accordingly, we affirm.

Claimant is a mildly retarded thirty-two year old man with a medically diagnosed speech impediment. His reading, writing, and math skills are limited. Claimant did not graduate from high school and, despite two attempts, has not been able to obtain his high school equivalency degree. Claimant suffers from congenital deformities in the fourth finger of each hand. He has flat feet and joints were removed from several toes because of a deformity known as hammertoe. Claimant also suffers from migraine headaches which incapacitate him at times.

Claimant worked for Missouri Butcher and Cafe Supply (employer) as a general heavy laborer. This was claimant's first full time employment. He obtained the job with the assistance of a friend who helped claimant fill out the application. Prior to this position, claimant cut lawns, dug holes, and performed general odd-job labor.

Claimant's duties for employer included cleaning stoves, freezers, and refrigerators. Also, he loaded and unloaded those appliances on and off trucks. Claimant was injured on March 9, 1989 while cleaning a bread machine. A co-employee plugged the machine into an electrical outlet and claimant's right hand was caught between the rollers. Claimant was taken immediately to Barnes Hospital where his hand was X-rayed. The X-ray showed claimant sustained avulsion fractures at the second joint of the index finger and at the distal joint of the long or second finger. Claimant's hand was wrapped in gauze and his arm placed in a sling. No surgery was performed and no cast was applied.

Claimant was off work for thirteen weeks due to the injury. During this period, claimant underwent physical therapy. He was released to work with a lifting restriction of fifty pounds.

Claimant returned to work on June 9, 1989, but quit his job two weeks later on June 27, 1989. Claimant testified he quit because he could not perform his duties. However, the medical records of Irene Walter Johnson Rehabilitation Institute indicate claimant quit because he did not receive a pay raise.

Claimant filed a claim for compensation against employer, its insurer, and the Second Injury Fund. Following the hearing, the administrative law judge (ALJ) of the Division of Workers' Compensation found claimant sustained a thirty-five percent permanent partial disability at the level of the right wrist as a result of the March 9, 1989 injury. The ALJ also found claimant had a preexisting disability of fifty percent of the body as a result of claimant's speech impediment and diminished mental capacity and fifteen percent of the body from head injuries and facial fractures from a previous accident. The ALJ found these disabilities combined to make claimant more disabled than he would be considering each disability separately. However, the ALJ found the overall combination of claimant's disabilities did not rise to the level of permanent and total disability.

Claimant appealed to the Commission which affirmed the award of the ALJ, holding the decision was supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. This appeal followed.

In claimant's sole point on appeal, he contends the Commission erred in determining he was not permanently and totally disabled as a result of the March 9, 1989 injury. Claimant argues his prior disabilities limited him to doing only manual labor and, thus, when he sustained the injury to his right hand, he was rendered totally disabled.

Appellate review of a worker's compensation award is governed by § 287.495 RSMo 1986. The Commission's decision may be set aside only if there is no substantial and competent evidence to support it or if it is clearly contrary to the overwhelming weight of the evidence. Brown v. Hillhaven Convalescent Center, 776 S.W.2d 47, 48-49 (Mo.App.S.D.1989). Section 287.020.7 RSMo 1986 defines total disability as an "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." To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present...