Obermann v. Treasurer of the State of Mo. as Custodian of the Second Injury Fund

• Docket Number: ED111004
• Decision Date: 22 August 2023
• Parties: LARRY OBERMANN, Appellant, v. TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent.
• Court: Missouri Court of Appeals

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LARRY OBERMANN, Appellant, v. TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent.

No. ED111004

Court of Appeals of Missouri, Eastern District, Fourth Division

August 22, 2023

Labor and Industrial Relations Commission

Kelly C. Broniec, C.J., Philip M. Hess, J., and James M. Dowd, J.

JAMES M. DOWD, JUDGE

Introduction

This workers' compensation case concerns the application of the 2014 amendments to section 287.220.3 of the Missouri Workers' Compensation Act which govern when a worker who is permanently and totally disabled (PTD) may become entitled to receive benefits from the Second Injury Fund (Fund).^[1] Pursuant to the Supreme Court's recent interpretation of this section in Treasurer of State v Parker, 622 S.W.3d 178 (Mo. banc 2021), and Klecka v. Treasurer of Missouri, 644 S.W.3d 562 (Mo. banc 2022), a claimant must establish that his primary injury in combination with his qualifying preexisting disabilities - that is, those which are medically documented preexisting disabilities equaling a minimum of fifty weeks of permanent partial disability (PPD) compensation^[2] - render him PTD and unable to compete for employment in the open labor market. However, Fund liability is negated if the claimant relies on non-qualifying disabilities to prove his PTD status because, again, section 287.220.3 limits Fund liability to PTD that results from the combination of the primary injury and qualifying disabilities only. Parker, 622 S.W.3d at 182; Klecka, 644 S.W.3d at 567.

Here Appellant Larry Obermann's claim for benefits against the Fund arose from a workplace injury to his right shoulder (the primary injury) on November 3, 2017. Obermann previously suffered five other workers' compensation injuries, four of which are qualifying disabilities under section 287.220.3 in that each exceeded fifty weeks of PPD. The nonqualifying disability is a 1995 injury to his left knee that resulted in less than fifty weeks of PPD.

The Labor and Industrial Relations Commission denied Obermann's claim based on its finding that "[n]o medical or vocational expert opined that the employee's PTD resulted solely from the combination of the November 3, 2017, primary injury and the pre-existing disabilities exclusive of disability attributable to his compensable 1995 left knee injury." (Emphasis added.) In its conclusions of law, the Commission stated that the "only evidence in the record" is that Obermann's non-qualifying left knee injury contributed to his PTD claim which disqualifies him from PTD benefits from the Fund. The Commission reached these conclusions based on its finding that Obermann's medical and vocational rehabilitation experts included the nonqualifying 1995 left knee disability in their reports and testimony.

In this appeal of the Commission's decision, Obermann brings five claims of error.^[3] In Point IV, which is dispositive Obermann asserts that the Commission's decision was not supported by competent and substantial evidence. We agree because the record demonstrates that Obermann's vocational rehabilitation expert repeatedly opined that Obermann was unemployable, irrespective of his left knee disability, "based upon the limitations from the shoulder injury plus the pre-existing conditions that he had had from his feet injuries." This evidence directly refutes the Commission's decision thereby rendering its core holding wholly unsupported by the record. Accordingly, we reverse.

Factual Background

Obermann was a heavy-equipment operator at a rock quarry for Base Rock Minerals in

Cape Girardeau from April 2017 until November 3, 2017, when he tore his right rotator cuff while working. During his lengthy career in construction and carpentry, which began in 1990, he sustained numerous other workers' compensation injuries, including:

a. Right knee injury in 1991 - 52 weeks PPD;

b. Left knee injury in 1995 - 28 weeks PPD;

c. Right foot and left foot injuries in 2008 - 80 weeks and 64 weeks PPD, respectively; and d. Preexisting right shoulder disability - 52.2 weeks PPD.^[4]

Obermann's extensive injury history is remarkable not only for the sheer number of injuries but for the severity of those injuries, especially the catastrophic foot injuries that resulted from a fall from height that kept him off work for five years. Four years after returning to work from those foot injuries, he suffered the primary shoulder injury at issue here.

Obermann settled the primary injury claim with his employer and then sought PTD benefits from the Fund based on his primary injury and his preexisting disabilities listed above. Obermann supported his claim with the deposition testimony of Dr. Shawn Berkin, an osteopathic family medicine physician and independent medical examiner, and Ms. Susan Shea, a vocational rehabilitation specialist. Both experts reviewed Obermann's extensive medical history and medical documentation, and Dr. Berkin performed a physical examination of Obermann. Additional details regarding both experts' findings and opinions will be discussed in the analysis below.

Following a September 29, 2021, hearing, the ALJ found Obermann was PTD and that Fund liability under section 287.220.3 had been established. The Fund timely appealed, asserting in part that the ALJ erred when she included the non-qualifying preexisting disability in arriving at the Fund's liability. The Commission agreed and reversed on those grounds.

This appeal follows.

Standard of Review Our review of the Commission's decision is governed by the Missouri Constitution and section 287.495. We review whether the Commission's decision is "authorized by law" and "supported by competent and substantial evidence upon the whole record." MO. CONST. art. V, § 18. Moreover, section 287.495.1 provides that on appeal this Court "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; [or]

(4) That there was not sufficient competent evidence in the record to warrant the making of the award."

This Court "reviews and examines the entire record to determine if there is sufficient competent and substantial evidence to support the Commission's award, or whether the Commission's award is contrary to the overwhelming weight of the evidence." Aramark Educational Servs., Inc. v. Faulkner, 408 S.W.3d 271, 274-75 (Mo. App. E.D. 2013). In so doing, we "must determine whether the Commission reasonably could have made its findings and reached its result based upon all of the evidence before it." Porter v. RPCS, Inc., 402 S.W.3d 161, 171 (Mo. App. S.D. 2013).

We defer to the Commission on "issues of fact, credibility of witnesses, and weight to be given to conflicting evidence," however, we review interpretations or applications of law de novo. Beine v. County of St. Charles, 353 S.W.3d 704, 707 (Mo. App. E.D. 2011). "Nothing requires this Court to review the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the Commission's decision." Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012).

Discussion

We reverse the Commission's decision denying Obermann PTD benefits from the Fund because the Commission's dispositive factual finding sustaining its decision is unsupported by the record.

When a claimant brings a substantial evidence challenge, he must engage in a specific analysis to satisfy his burden of proof. Fields v. Treasurer of Missouri, 628 S.W.3d 803, 812 (Mo. App. E.D. 2021). He must:

"1. Identify a factual proposition needed to sustain the result;

2. Marshal all evidence in the record supporting that proposition, subject to the Commission's authorized factual and credibility determinations;

3. Marshal contrary evidence of the record, subject to the factfinder's credibility determinations, explicit, or implicit; and

4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition."

Harris v. Ralls County, 588 S.W.3d 579, 596 (Mo App. E.D. 2019). Our review of Obermann's brief demonstrates substantial compliance with this analytical sequence. See Hayden v. Cut-Zaven, Ltd., 614 S.W.3d 44, 58 (Mo. App. E.D. 2020).

The Commission's statement that "[n]o medical or vocational expert opined that the employee's PTD resulted solely from the combination of the November 3, 2017, primary injury and the preexisting disabilities exclusive of disability attributable to his compensable 1995 left knee injury," which is necessary to sustain the judgment, is simply incorrect and unsupported by the record. As Obermann points out in his brief, the testimony of his vocational expert, Ms. Shea, repeatedly belied the Commission's dispositive finding in this regard. She testified (1) that Obermann's "functional capacity prohibits any work as generally performed in the national labor market" and that his functional capacity is "based upon the limitations from the shoulder injury plus the pre-existing conditions that he had from his feet injuries"; and (2) that certain life factors, such as Obermann's use of narcotics to treat the pain caused by his foot injuries, his advanced age, and his anxiety, also make him "unemployable." For his part, Dr. Berkin stated that Obermann "would not be considered to be an attractive or viable job candidate to any prospective employer," but deferred to Ms. Shea on the ultimate question of Obermann's PTD status and employability in the open labor market.

Although...