Phelps v. Mo. State Treasurer, SD 36998

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY W. LYNCH, J.
Citation629 S.W.3d 47
Parties Gregory PHELPS, Appellant, v. MISSOURI STATE TREASURER as Custodian of the Second Injury Fund, Respondent.
Docket NumberNo. SD 36998,SD 36998
Decision Date25 June 2021

629 S.W.3d 47

Gregory PHELPS, Appellant,
MISSOURI STATE TREASURER as Custodian of the Second Injury Fund, Respondent.

No. SD 36998

Missouri Court of Appeals, Southern District, Division One.

FILED: June 25, 2021
Application for Transfer Denied October 5, 2021

Appellant's attorney: D. Matthew Edwards.

Respondent's attorneys: Eric S. Schmitt, Atty. Gen. & Crystal L. Williams, Asst. Atty. Gen.


629 S.W.3d 50

Gregory Phelps (hereafter referred to as "Claimant" and sometimes "Employee") appeals the final award of the Labor and Industrial Relations Commission (the "Commission") denying his workers’ compensation claim for permanent total disability ("PTD") benefits from the Treasurer of the State of Missouri as custodian of the Second Injury Fund (the "Fund"). In three points relied on, Claimant asserts that the Commission "erred as a matter of law" in denying his claim because the Commission incorrectly interpreted and applied section Because his first and second points lack merit and their denial moots his third point, we affirm the Commission's award.

Applicable Legal Principles

When, as in this case, "the Commission affirms and adopts the award and decision of the [Administrative Law Judge ("ALJ")], we review the ALJ's findings as adopted by the Commission."2 Williams v. City of Jennings , 605 S.W.3d 152, 157 n.2 (Mo. App. 2020) (citing Angus v. Second Injury Fund , 328 S.W.3d 294, 297 (Mo. App. 2010)). By their adoption, the ALJ's findings become the Commission's findings, which are subject to appellate review.

This Court reviews the Commission's findings to determine if they are "supported by competent and substantial evidence upon the whole record," but questions of statutory interpretation are questions of law reviewed de novo. Cosby v. Treasurer of State , 579 S.W.3d 202, 205-06 (Mo. banc 2019).... "When interpreting statutes, this Court must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and give effect to that intent if possible." Id. at 206.... Further, this Court refrains from adding words to the statute. Macon Cnty. Emergency Servs. Bd. v. Macon Cnty. Comm'n , 485 S.W.3d 353, 355 (Mo. banc 2016).

Treasurer of State v. Parker , 622 S.W.3d 178, 180-81 (Mo. banc 2021).

The Commission's findings of fact are conclusive if supported by competent and substantial evidence upon the whole record and reached in the absence of fraud. Archer v. City of Cameron , 460 S.W.3d 370, 374 (Mo. App. 2015) (citing Coday v. Division of Employment Sec. , 423 S.W.3d 775, 778 (Mo. banc 2014) ). Here, none of Claimant's points challenge any Commission factual finding as not being supported by competent and substantial evidence upon the whole record. See MO. CONST. art V, § 18 ; section 287.495.1(4). We utilize, therefore, the Commission's unchallenged factual findings in our de novo review of Claimant's legal challenges to the Commission's interpretation and application of section 287.220.3.

"This Court strictly construes the provisions of workers’ compensations statutes." Cosby , 579 S.W.3d at 206 ; section 287.800.1. "When interpreting statutes, this Court must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and

629 S.W.3d 51

give effect to that intent if possible." Cosby , 579 S.W.3d at 206 (alteration and quotation marks omitted). While in isolation a word may be susceptible to more than one meaning, "its plain meaning is determined from its ‘usage in the context of the entire statute.’ " Holmes v. Steelman , SC97983, 624 S.W.3d 144, 152 (Mo. banc June 15, 2021) (quoting State ex rel. Goldsworthy v. Kanatzar , 543 S.W.3d 582, 585 (Mo. banc 2018) ). "A court cannot look at single, separate words in a statute and then apply to each a definition untethered from its context." Id. (citing Kehlenbrink v. Dir. of Revenue , 577 S.W.3d 798, 800 (Mo. banc 2019) ). "Strict construction does not authorize an ALJ, the Commission, or this court to add words to or subtract words from a statute or ignore the plain meaning of the words chosen by the legislature." Naeter v. Treasurer of Missouri , 576 S.W.3d 233, 237 (Mo. App. 2019) (citing Dickemann v. Costco Wholesale Corp. , 550 S.W.3d 65, 68 n.5 (Mo. banc 2018) ).

Under section 287.220.3, an employee must meet two conditions to make a compensable PTD claim against the Fund. Parker at 181. The first condition, at issue in Claimant's first and second points, is that "the employee must have at least one qualifying preexisting disability." Id.

To qualify under the first condition, the preexisting disability must be medically documented [("the first requirement")], equal at least 50 weeks of permanent partial disability [("the second requirement")], and meet one of the following criteria [("the third requirement")]:

(i) A direct result of active military duty in any branch of the United States Armed Forces [("the first criteria")]; or

(ii) A direct result of a compensable injury as defined in section 287.020 [("the second criteria")]; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury [("the third criteria")]; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear [("the fourth criteria")] [.]

Id. (emphasis added); section 287.220.3(2)(a)a(i)-(iv).

The second condition, at issue in Claimant's third point, is "the employee must show he ‘thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability ... results in a permanent total disability....’ " Id. ; section 287.220.3(2)(a)b. "The ‘subsequent compensable work-related injury’ is often referred to as the ‘primary injury.’ " Id.

Factual and Procedural Background

As his primary injury, the Commission found that Claimant sustained a compensable work-related injury to his left shoulder on April 14, 2016, and that determination is not in dispute in this appeal. Claimant settled his worker's compensation claim for this injury with his employer and its insurer.

The Commission also determined that "[t]he evidence clearly supports a finding that [Claimant] is permanently and totally disabled...." That determination is not in dispute in this appeal.

629 S.W.3d 52

Rather, Claimant asserted before the ALJ and the Commission that the Fund was liable for PTD benefits because his pulmonary system/lungs, right knee, and low back were each a qualifying preexisting disability, see section 287.220.3(2)(a)a ("the first condition"), that when combined with his primary injury resulted in his PTD, see section 287.220.3(2)(a)b ("the second condition"). As to those alleged preexisting disabilities, the ALJ made the following factual findings:

[Pulmonary system/lungs]

Employee was diagnosed with asthma as a child. He has taken steroid medications and breathing treatments for the condition, but he does not believe his asthma limited his activities. Employee is a smoker and began smoking at age 13.

While working for the Fire Department, Employee sustained several smoke and chemical inhalation injuries that he believes worsened his asthma and increased his need for medications and inhalers. Employee did not provide specific dates for these exposures. He recalled having breathing treatments at least three to four times. He did not file any claims for workers’ compensation regarding these exposures and there are no reports of injury on file with the Division of Workers’ Compensation.

On March 9, 2000, Employee suffered a chemical exposure while working for the Malden Housing Authority. He was running a spray rig using herbicides when the line broke and sprayed him. He inhaled the herbicide and suffered a reaction. A report of injury was filed with the Division of Workers’ Compensation. He testified that he went to the hospital and was given steroid shots. He testified that he was diagnosed with chemical burn in his lungs. He testified he was also diagnosed with COPD, although it is unclear when this diagnosis was made. He testified that workers’ compensation paid for his "initial treatment." A Receipt and Notice of Termination of Compensation Payments filed on behalf of the Housing Authority of the City of Malden on July 13, 2000, reflects that Employee was paid 3 [and] 2/7 weeks of temporary total disability benefits and stated that the nature of the disability was "CHEMICAL BURN." The notice reflected that benefits were terminated on July 5, 2000, because Employee had returned to work but that Employee was still treating for the injury. Employee testified that he continued to work as long as he could, but was unable to get the job done and believed his employer wanted him to leave so he finally quit. After that he was off of work for about a year. He did not

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT