Nance v. Treasurer of Missouri, WD 60768.

• Decision Date: 08 October 2002
• Docket Number: No. WD 60768.,WD 60768.
• Citation: 85 S.W.3d 767
• Parties: Anthony NANCE, Appellant-Respondent, v. TREASURER OF MISSOURI as Custodian of Second Injury Fund, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 767

85 S.W.3d 767

Anthony NANCE, Appellant-Respondent, v. TREASURER OF MISSOURI as Custodian of Second Injury Fund, Respondent-Appellant.

No. WD 60768.

Missouri Court of Appeals, Western District.

October 8, 2002.

Arthur H. Stoup, Kansas City, MO, for appellant-respondent.

Anemarie Drees Mura, Kansas City, MO, for respondent-appellant.

Before JOSEPH M. ELLIS, Chief Judge, THOMAS H. NEWTON, Judge and LISA WHITE HARDWICK, Judge.

JOSEPH M. ELLIS, Chief Judge.

Anthony Nance appeals from an award entered by the Labor and Industrial Relations Commission ("the Commission") holding that the Second Injury Fund ("the Fund") was liable to pay him permanent partial disability benefits calculated at five percent of the body as a whole. Nance contends that an award this small was not supported by sufficient evidence and was against the weight of the evidence. The Fund cross-appeals, claiming that the Commission exceeded its authority in making any award against the Fund because Nance had previously voluntarily dismissed his employer from the claim.

On June 23, 1994, Nance was employed as a firefighter for the City of Kansas City, Missouri. That day, in the course of his employment, Nance injured his low back while helping a paramedic carry a 400-pound patient down some stairs in a MAST chair after the paramedic lost her grip on the chair. The City of Kansas City timely filed a report of injury with the Division of Workers' Compensation ("the Division") on August 15, 1994.

Following this injury, the City provided Nance with medical treatment for his injury. Because of his injury, Nance was unable to return to work as a firefighter. He elected, pursuant to an agreement between his union and the City, to receive his full wages rather than the statutory amount allowed for temporary total disability. Pursuant to that agreement, any money paid in excess of the required temporary total disability benefit was to be credited against any settlement or judgment ultimately obtained by Nance under the Workers' Compensation Law.

On June 12, 1995, Nance timely filed a claim for benefits under the Workers' Compensation Law against the City. Nance also made a claim against the Fund. Both the City and the Fund filed timely answers to Nance's claim.

Also in June 1995, the City stopped paying Nance's full wages, and Nance began receiving non-duty disability benefits. Eventually, in June 1998, Nance was awarded duty disability benefits by the City. Pursuant to a Kansas City ordinance, any Workers' Compensation Award would be deducted from his duty disability benefits.

On April 4, 2000, Nance filed a motion voluntarily dismissing his claim against the City because any award against the City would reduce his duty disability benefits in the sum of the award. On April 17, 2000, the Division issued its order dismissing the City from the claim.

Nance's claim against the Fund was heard by an Administrative Law Judge ("ALJ") on February 9, 2001. On March 9, 2001, the ALJ issued her Award, Findings of Fact and Rulings of Law. The ALJ held that Nance could pursue his claim against the Fund under the applicable statutory provisions even though the employer had been dismissed from the action, provided that Nance could establish that he had sustained a compensable injury along with all of the other requisite elements for Fund liability under § 287.220.1.¹ The ALJ then made the following findings, inter alia: (1) Nance had proven the requisite elements to establish Fund liability; (2) Nance's June 1994 injury resulted in a twenty-percent permanent partial disability to Nance's body as a whole; (3) prior to his compensable work related injury on June 23, 1994, Nance had permanent disabilities resulting from prior injuries to his right shoulder and right knee that were hindrances and obstacles to his employment; (4) that Nance had a preexisting twenty percent permanent partial disability at the 160-week level as a result of his knee problems and a fifteen percent permanent partial disability at the 232-week level as a result of his shoulder problems; and (5) the simple sums of the preexisting and June 23, 1994, injuries reflected a thirty-seven percent permanent partial disability based on the body as a whole, but the combined effect of the current and preexisting disabilities was greater than the simple sum by five percent of the body as a whole. Based on these findings, the ALJ ordered the Fund to pay compensation to Nance equivalent to five percent of the body as a whole pursuant to § 287.220.1.

Both Nance and the Fund appealed from this Award to the Commission. On October 29, 2001, the Commission issued its Final Award affirming the ALJ's award and incorporating it by reference. Both Nance and the Fund appeal from the Commission's Final Award.

We first address the Fund's sole claim in its cross-appeal. The Fund asserts that the Commission acted in excess of its powers in allowing Nance to pursue a claim against the Fund after Nance had dismissed his claim against his employer. The Fund argues that without the employer as a party to the action the issue of the employer's liability for the claimed injury could not be properly litigated or decided and that any determination regarding the compensability of the claimed injury must occur while the employer is a party to the action.

In rendering its Award, the Commission found, as a matter of law, that it was not precluded from considering the liability of the Fund under § 287.220.1 simply because Nance had dismissed his claim against the City. Findings of the Commission interpreting or applying the law are not binding on this Court, and our review of such findings is de novo. Carlson v. Plant Farm, 952 S.W.2d 369, 372-73 (Mo.App. W.D.1997).

Section 287.220.1 provides, in relevant part:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

A mere cursory reading of § 287.220.1 makes it clear that an employee/claimant must establish that he or she sustained a compensable injury and that the injury caused the requisite level of permanent partial disability as part of his or her claim against the Fund. But nothing in the statutory language requires that the employer still be a party to the action in order for the Commission to make factual findings regarding whether the claimed injury is compensable and the degree of any permanent disability resulting therefrom for which the employer would be liable.

The Fund has not directed us to any legal authority supporting its position, and we find no compelling reason why an employee/claimant should be precluded from pursuing his claim against the Fund simply because he or she elected not to continue pursuing compensation from his or her employer. "Pursuant to section 287.220, the employer is liable only for the percentage of disability for employee's last injury without any pre-existing disability, and the Fund is liable for the balance of the disability found to exist above that found for employee's last injury alone." Conley v. Treasurer of Missouri, 999 S.W.2d 269, 275 (Mo.App. E.D.1999). Accordingly, "[s]ection 287.220.1 provides for a separate liability of the employer and the Second Injury Fund," and "[t]he employee's claims against the employer and against the Second Injury Fund are separate proceedings." Strange v. SCI Bus. Prods., 17 S.W.3d 171, 173-74 (Mo.App. E.D.2000).

Because the employer's liability and the Fund's liability are separate, an employee/claimant may settle his or her claim against the employer and continue to pursue a claim against the Fund. Id. at 174; Grant v. Neal, 381 S.W.2d 838, 842 (Mo. 1964). We can conceive of no reason to treat Nance's dismissal of his claim against the City any differently that if he had officially entered into a settlement with the City. Regardless of whether an employer remains a party to the claim, the employee/claimant still bears the same burden of proof in order to establish a claim against the...