Muller v. Treasurer of Missouri

• Decision Date: 22 October 2002
• Docket Number: No. WD 60770.,WD 60770.
• Citation: 87 S.W.3d 36
• Parties: Martha MULLER, Appellant, v. TREASURER OF MISSOURI, as custodian of Second Injury Fund, Respondent, and Ford Motor Company, Defendant.
• Court: Missouri Court of Appeals

87 S.W.3d 36

Martha MULLER, Appellant, v. TREASURER OF MISSOURI, as custodian of Second Injury Fund, Respondent, and Ford Motor Company, Defendant.

No. WD 60770.

Missouri Court of Appeals, Western District.

October 22, 2002.

COPYRIGHT MATERIAL OMITTED

C. Carl Kimbrell III, North Kansas City, for Appellant.

Carolyn B. McCarthy, Assistant Attorney General, Kansas City, for Respondent.

PAUL M. SPINDEN, Judge.

Martha Muller appeals the Labor and Industrial Relations Commission's award of workers' compensation. She complains that the commission decided that the Second Injury Fund was liable only for permanent partial disability benefits rather than permanent total disability benefits. She argues that the weight of evidence overwhelmingly and exclusively supports a claim of permanent total disability. We find the commission's findings and award supported by competent and substantial evidence and not contrary to the overwhelming weight of evidence and, therefore, affirm the commission's award.

Muller was an assembly line worker for Ford Motor Company on November 5, 1992, when she fell off a chair and into a pit while attempting to bolt fenders to vehicles on the assembly line. Muller claimed that after this injury she began suffering from headaches and pain in her neck, back, shoulder and arm. Physicians decided that she required no surgery to treat her injuries. They treated her with therapy and medications.

Before her November 1992 injury, Muller had suffered three permanent partial disabilities. In May 1990, while working at Ford, she fell down some steps and injured her lower back and "tailbone" — an injury which was settled based upon a permanent partial disability of 6.5 percent to the body as a whole. Physicians also diagnosed Muller as suffering from Bell's palsy, a disorder which impaired the nerves on one side of her face. She underwent surgery after her last injury in which surgeons inserted a gold chip in her eye and a metal plate in her chin. Muller also suffered a foot impairment for which she had undergone surgery twice several years before her last injury. Despite these disabilities, Muller remained socially active and continued to work at Ford full-time — and even overtime — until November 1992.

Ford settled Muller's claim for the November 1992 accident in which Muller agreed to compensation based upon a permanent partial disability of 22.5 percent to her body as a whole. As a result of that permanent partial disability, combined with her pre-existing permanent partial disabilities, Muller asserted that she was permanently and totally disabled. She made a claim against the Second Injury Fund in which she sought total disability benefits.

Muller testified at the administrative hearing that her injuries had curtailed, or made more difficult, her daily activities.. She said that she experienced headaches., neck pain, shoulder pain, arm pain, numb and cold fingers, knee problems, and foot pain. She also complained of lower back pain when she sat too long. But she said that her pain as a whole was about the same as it was after her November 1992 injury. Muller admitted that her physician had approved of her returning to work, that she was ready and willing to work, and that she attempted to return to work at Ford but did not do so because Ford did not have a job meeting her restrictions.

Mary Titterington, a vocational rehabilitation counselor and consultant who first saw Muller in November 1998 six years after Muller's last injury at Ford, testified that Muller was permanently and totally disabled. Between the time of Muller's last injury and her meeting with Titterington, Muller had undergone additional surgeries not related to her last injury, including knee surgery, a hysterectomy, tumor removals, liver biopsy, and eye and chin surgeries related to treatment of her Bell's palsy. She also suffered depression. Muller was of average intelligence and ability, Titterington said, but was unskilled to semi-skilled with no transferable job skills. She also determined that Muller would need a job in which she could rotate between sitting and standing and that she was not employable in the open market because her physical restrictions would make her unreliable and unable to be at work five days a week for a full eight hours.

Preston Brent Koprivica, a physician who examined Muller at the request of her attorney, testified that Muller had weak arms and hands, had limitations in her shoulder girdles, a severe loss of motion in her neck and back, and was paralyzed on the right side of her face. He also testified that she had varicose veins in her legs, chronic lower back pain and multiple-level degenerative spinal discs with bulging at two levels, chronic neck pain with a disc herniation, central disc protrusion, and disc bulge, and a head injury with postconcussion syndrome. Koprivica also noted that Muller had bilateral foot pain and scarring consistent with her surgical interventions, that Muller complained of various pains to her back, neck, feet, knee and leg during the exam, and that she was unable to sit or walk for prolonged periods.

Koprivica concluded that Muller was not capable of substantial gainful employment of any sort in the open market. He rated Muller's Bell's palsy as a 15 percent disability to the body as a whole, her bilateral foot pain as a 20 percent disability to the body as a whole, and her remaining aggravated injuries from her combined falls as a 35 percent disability to the body as a whole.

Administrative Law Judge Kenneth J. Cain heard Muller's claim. On March 8, 2001, he filed findings of fact and conclusions of law in which he awarded her 30 weeks of compensation for permanent partial disability but denied her claim of permanent total disability benefits from the Second Injury Fund. Muller appealed to the commission, which affirmed Administrative Law Judge Cain's award and decision. Muller appeals.

The minimum standard for judicial review of an administrative decision is set forth in Article V, § 18, of Missouri's constitution. Janis v. Director of Revenue, 804 S.W.2d 22, 25 (Mo. banc 1991). That provision says:

All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record. Unless otherwise provided by law, administrative decisions, findings, rules and orders subject to review under this section or which are otherwise subject to direct judicial review, shall be reviewed in such manner and by such court as the supreme court by rule shall direct and the...