Molder v. Mo. State Treasurer

• Court: Missouri Court of Appeals
• Writing for the Court: Before: GARY D. WITT, P.J., and JAMES EDWARD WELSH and ALOK AHUJA, JJ.
• Citation: Molder v. Mo. State Treasurer, 342 S.W.3d 406 (Mo. App. 2011)
• Decision Date: 14 June 2011
• Docket Number: No. WD 72977.,WD 72977.
• Parties: Stancie MOLDER, Respondent,v.MISSOURI STATE TREASURER, as Custodian of the Second Injury Fund, Appellant.

342 S.W.3d 406

Stancie MOLDER, Respondent,

v.MISSOURI STATE TREASURER, as Custodian of the Second Injury Fund, Appellant.

No. WD 72977.

Missouri Court of Appeals, Western District.

June 14, 2011.

Kimberly C. Fournier, Kansas City, MO, for appellant.James W. Humphrey, Jr. and John R. Humphrey, Kansas City, MO, for respondent.Before: GARY D. WITT, P.J., and JAMES EDWARD WELSH and ALOK AHUJA, JJ.ALOK AHUJA, Judge.

The Second Injury Fund appeals the Labor and Industrial Relations Commission's Final Award Allowing Compensation, which found that preexisting injuries and a primary carpal tunnel injury combined to render claimant Stancie Molder permanently and totally disabled. The Fund argues that the overwhelming weight of the competent evidence establishes that Molder was employable in the open labor market, and therefore was not permanently and totally disabled. We affirm.

Factual Background

Molder began working at Bank of America as a data entry processor in 1991, and remained employed in that position until she was laid off in 2007. Molder began suffering from numbness and tingling in both hands in 2002. She was diagnosed with the primary work-related injury of bilateral carpal tunnel syndrome caused by repetitive stress. In October 2006 and November 2007, Molder underwent right and left carpal tunnel release procedures. She testified that, despite the surgeries, her symptoms of weakness and cramping in her hands and wrists had not improved, and may have gotten worse.

Molder settled her claim against Bank of America for her primary carpal tunnel injury in a Stipulation for Compromise Settlement approved on December 17, 2008. The settlement rated Molder's carpal tunnel injury as causing a 12.5% permanent partial disability to her body as a whole.

In addition to her claim against Bank of America, Molder also asserted a claim against the Second Injury Fund, alleging that her primary carpal tunnel injury combined with preexisting injuries to render her permanently and totally disabled. The evidence indicated that Molder had suffered a series of serious injuries prior to the onset of bilateral carpal tunnel syndrome in 2002. In 1987 she injured her low back in a car accident, requiring spinal surgery. As a result of the 1987 back injury, Molder was subject to a 25–pound permanent lifting restriction, as well as limitations on her ability to sit for extended periods, bend at the waist, push, pull, twist, and lift and carry objects.

Molder injured her right foot while working at Wal–Mart in 1994, when a shopping cart ran into the back of her heel. She had two surgeries to address the injury, but nevertheless continued to experience persistent pain both in her forefoot, and in her heel. The pain prevented Molder from standing or walking for more than one hour. Molder was on medical leave from Wal–Mart for a full year due to the injury and resulting pain.

Molder injured her right shoulder in December 2000, when she fell in an icy parking lot while leaving work. Molder tore her rotator cuff and injured her brachial plexus as a result of the fall. She had surgery on her right shoulder in January 2001. Molder testified that she “was off work for almost six months ... because of the surgery.” The injury caused ongoing weakness and pain in Molder's right shoulder, and prevents her from performing overhead activities on the right side, and from lifting items greater than fifteen or twenty pounds. The December 2000 fall also caused an increase in the pain Molder experienced in her lower back.

Following her layoff by Bank of America in 2007, through the date of the administrative hearing, Molder worked part-time at Burch Automotive. She testified that she works four hours a day, typically one day a week on an as-needed basis, taking telephone messages and performing other light work. Despite her ongoing employment at Burch Automotive, Molder alleged that the combination of her preexisting injuries and the 2002 carpal tunnel injury rendered her permanently and totally disabled.

After a hearing in November 2009, the Administrative Law Judge rejected Molder's claim against the Fund for permanent and total disability benefits. The ALJ concluded that, because “Ms. Molder is currently performing work on the open labor market, albeit part time, ... she must be considered employable on the open labor market.” The ALJ instead awarded Molder permanent partial disability benefits of $8,777.73 from the Fund.

Molder applied for review to the Labor and Industrial Relations Commission. In a Final Award entered on August 25, 2010, the Commission concluded that the ALJ had misapplied the law, and that Molder was in fact permanently and totally disabled.

[E]mployee sporadically performs part-time work for Burch Automotive on an as-needed basis. Employee works zero to twenty hours a week. Employee has the option of not reporting to work if she is having a bad day. Burch Automotive accommodates employee by allowing employee to alternate between sitting, standing, and reclining to elevate her feet so long as there are no customers presents. This irregular work is not employment in the open labor market.

More importantly, the uncontradicted opinions of three credible experts are in agreement that no reasonable employer could be expected to hire employee in her current condition.

The Commission awarded Molder permanent total disability benefits from the Fund. In addition to other relief, the Commission ordered the Fund to pay Molder $290.29 per week for her lifetime, beginning on March 25, 2009. The Second Injury Fund appeals.

Standard of Review

In workers' compensation cases,

a court, on appeal, shall 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.

Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003) (citation and internal quotation marks omitted).¹

While we review questions of law de novo, see, e.g., McGhee v. W.R. Grace & Co., 312 S.W.3d 447, 451 (Mo.App. S.D.2010), whether a particular employee is permanently and totally disabled is a factual, not a legal, question. “[O]ur inquiry into permanent-total disability is a factual one: whether Claimant is employable. We will not substitute our judgment on issues of fact where the Commission was within its powers, even if we would arrive at a different initial conclusion.” Messex v. Sachs Elec. Co., 989 S.W.2d 206, 210 (Mo.App. E.D.1999); see also Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App. S.D.2003) (“The extent and percentage of disability is a finding of fact within the special province of the Industrial Commission.” (citation and internal quotation marks omitted)); Shipp v. Treasurer, 99 S.W.3d 44, 51 (Mo.App. E.D.2003).

To determine whether there is sufficient competent and substantial evidence to support the Commission's award, we examine the evidence in the context of the whole record. Hampton, 121 S.W.3d at 222–23. “The Commission, as the finder of fact, is free to believe or disbelieve any evidence. We defer to the Commission's findings as to weight and credibility of testimony and are bound by its factual determinations.” ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 49 (Mo.App. W.D.2007) (citations omitted).

Analysis²

The Fund argues in its sole Point Relied On that “[t]he Commission erred in reversing the Administrative Law Judge's award finding that Ms. Molder was employable in the open labor market,” because—according to the Fund—substantial evidence supported the ALJ's decision.

The Fund's Point Relied On—which argues that the Commission erred in rejecting the ALJ's decision—misconceives the nature of our judicial review in workers' compensation cases. The Labor and Industrial Relations Commission does not owe any deference to the decisions of its ALJs. To the contrary, § 287.480.1, RSMo 2000 gives the Commission plenary authority to make an award in any case properly brought before it. It specifies:

If an application for review is made to the commission within twenty days from the date of the award, the full commission, if the first hearing was not held before the full commission, shall review the evidence, or, if considered advisable, as soon as practicable hear the parties at issue, their representatives and witnesses and shall make an award and file it in like manner as specified in section 287.470.

Thus, where the Commission reviews an ALJ's decision, it essentially considers the issues de novo.³ Reviewing courts have emphasized that the Commission is not bound to follow the ALJ's decision, even concerning the assessment of witness credibility, but is entitled to reach its own conclusions. For example, the court in Garrett v. Treasurer, 215 S.W.3d 244 (Mo.App. S.D.2007), rejected a claimant's argument that “the Commission ‘capriciously disregarded’ the ALJ's findings,” id. at 247—the same claim the Fund asserts here. While Garrett held that the Commission should give due regard to the ALJ's credibility determinations, the court emphasized that the Commission owed the ALJ's determinations no deference, and was authorized to reach its own independent conclusions:

We agree the Commission should duly consider an ALJ's credibility determinations, and should articulate any reasons for differing therefrom as an aid to judicial review. Yet the Commission need not defer to ALJ findings, credibility or otherwise, but is authorized to reach its own decisions.Id. (citation omitted); see also Gibson–Knox v. Classic Print, 184 S.W.3d 201, 204 (Mo.App. S.D.2006); Kent v. Goodyear Tire & Rubber Co., 147 S.W.3d 865, 871 (Mo.App. W.D.2004).

Because the Labor and...