Searcy v. McDonnell Douglas Aircraft Co., s. 66112

• Decision Date: 31 January 1995
• Docket Number: Nos. 66112,66207,s. 66112
• Parties: Fred SEARCY, Appellant/Cross-Respondent, v. McDONNELL DOUGLAS AIRCRAFT CO., and Industrial Indemnity Co., Respondents/Cross-Appellants, and The Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

Page 173

894 S.W.2d 173

Fred SEARCY, Appellant/Cross-Respondent, v. McDONNELL DOUGLAS AIRCRAFT CO., and Industrial Indemnity Co., Respondents/Cross-Appellants and The Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

Nos. 66112, 66207.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 31, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 7, 1995.

Robert Anthony Bedell, St. Louis, for appellant.

Edward W. Warner, St. Louis, for respondent.

Jeremiah W. (Jay) Nixon, Atty. Gen., Maria W. Campbell, Asst. Atty. Gen., Jefferson City, for Second Injury Fund.

CARL R. GAERTNER, Judge.

This is a Workers' Compensation case wherein the employee, Fred Searcy, and the employer, McDonnell Douglas Aircraft Company (McDonnell Douglas), appeal the Labor and Industrial Relations Commission of Missouri's award of 40 percent permanent partial disability of the man as a whole attributable to the lower back. The Commission found no liability against the Treasurer of the State of Missouri as custodian of the Second Injury Fund. We affirm.

Searcy was employed by McDonnell Douglas as a hydro operator. His job required him to lift sheets of aluminum onto a dye and then run the dye through a machine press, forming airplane parts. The aluminum sheets varied in weight from five to fifty pounds, depending on the type of part to be manufactured. Searcy's job also required considerable stooping, bending and walking.

In the course of employment, Searcy injured his lower back on August 15, 1988. This injury eventually required surgery, and Dr. Ronald Hertel performed the surgery in May of 1989. Dr. Hertel and Dr. Harry Cole, another one of Searcy's treating physicians, did not release Searcy to return to work until June of 1990. The doctors restricted Searcy to lifting nothing heavier than thirty pounds. When Searcy sought to return to work, McDonnell Douglas terminated his employment because of these restrictions.

Before this injury, Searcy worked for McDonnell Douglas for three years. In that three years, Searcy missed approximately one year of work because of previous back problems. Searcy twice injured his lower back in previous non-work-related accidents. As a result of these previous injuries, Searcy underwent surgery three times, in June of 1987, September of 1987, and February of 1988. After his surgery in February of 1988, Searcy was released to return to work on July 25, 1988. His doctor's orders restricted him to lifting nothing greater than forty pounds. Searcy worked for only three weeks before the present injury of August 15, 1988.

Searcy brought a workers' compensation claim against McDonnell Douglas for disability stemming from the August 15 injury. In this hearing, Dr. Marshall Conrad testified, by deposition, on Searcy's behalf. Dr. Conrad thought Searcy suffered 80 percent permanent partial disability of the man as a whole attributed to the low back. Of this 80 percent disability, Dr. Conrad believed 45 percent stemmed from the present injury, while 35 percent disability was from the pre-existing injuries. Dr. Hertel testified, by deposition, at McDonnell Douglas' request. Dr. Hertel stated that Searcy only suffered 35 to 40 percent permanent partial disability attributed to the lower back. Dr. Hertel thought ten percent of Searcy's disability stemmed from the most recent injury, while 25 percent disability could be traced to Searcy's pre-existing injuries. Dr. Samuel Bernstein, a licensed psychologist and vocational expert, also testified on Searcy's behalf. Dr. Bernstein believed Searcy was unemployable in the current labor market. Dr. Bernstein noted that Searcy was 56 years old and had a limited education. These limitations along with his physical disabilities made Searcy unemployable, according to Dr. Bernstein.

The administrative law judge concluded that the August 15, 1988, accident resulted in 40 percent permanent partial disability of the man as whole referable to the back, and he awarded permanent total disability against the Second Injury Fund. The judge also determined the subrogation rights of the employer/insurer and the Second Injury Fund. Before filing a workers' compensation claim, Searcy had settled a law suit arising out of the 1988 accident against a third party. Searcy received $29,573.90 in that settlement. The judge credited both McDonnell Douglas and the Second Injury Fund $14,786.95 each.

The Second Injury Fund and McDonnell Douglas filed applications for review by the Labor and Industrial Relations Commission. The Commission found that Searcy was not totally disabled. It ruled that the Second Injury Fund was not liable to Searcy and determined that Searcy was entitled to 40 percent permanent partial disability from his employer. As to the subrogation issue, the Commission found that any rights of the Second Injury Fund were made moot by the Commission's decision. The Commission affirmed the administrative law judge's decision in all other respects.

Searcy and McDonnell Douglas appeal from the Commission's decision. Our review of an award by the Commission is very narrow. We will modify, reverse, remand or set aside an award only where: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission did not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. § 287.495.1 RSMo 1986; McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 707-08 (Mo.App.1994). When reviewing the sufficiency of evidence, we are limited to determining if the Commission's award is supported by competent and substantial evidence on the whole record. Story v. Southern Roofing Co., 875 S.W.2d 228, 230 (Mo.App.1994). We view all evidence and inferences in the light most favorable to the award and will set aside the Commission's findings only when they are clearly contrary to the overwhelming weight of the evidence. Story, 875 S.W.2d at 230.

I

Searcy's first, second and fifth points of appeal are interrelated. In his first point on appeal, Searcy alleges that the Commission erred when it failed to find the Second Injury Fund liable for Searcy's pre-existing permanent partial disability. Searcy maintains there was no question about the existence of a pre-existing back disability; the Commission acknowledged this in its findings. But Searcy argues, the Commission erroneously concluded that the pre-existing disability was not industrial. Searcy, in his fifth point of appeal, argues that the Commission erred when it failed to find Searcy permanently totally disabled. In his second point, Searcy maintains that the Commission should have found the Second Injury Fund liable because Searcy's pre-existing disability combined with his subsequent accident to render him permanently totally disabled.

An industrial disability is a disability adversely affecting a claimant's earning capacity or ability to work, rather than a mere physical impairment as such. Carron v. Ste. Genevieve School Dist., 800 S.W.2d 64, 68 (Mo.App.1990). The Commission's determination that Searcy's pre-existing disability was not an industrial disability is against the overwhelming weight of the evidence. The Commission seems to have based this finding on the mere fact that Searcy was employed and working prior to the automobile accident. The mere fact that a claimant is working is not conclusive proof that a pre-existing condition does not affect a claimant's earning capacity or ability to work.

Searcy's previous back condition clearly affected his ability to work. For the three years Searcy worked at McDonnell Douglas prior to the August 15, 1988 accident, he missed approximately a year of work due to the pre-existing back injuries. Furthermore, Searcy's position as a hydro operator required him to occasionally lift aluminum sheets weighing fifty pounds. Dr. Hertel had restricted Searcy to forty pounds because of Searcy's pre-existing back problems. Dr. Conrad, in his testimony, could not remember whether work restrictions had been placed on Searcy as a result of the previous disabilities. Yet, he felt certain that there had been restrictions because such restrictions were necessary. He believed Searcy's pre-existing condition severely limited the work Searcy could perform, particularly the amount of weight he could lift and the amount of time he could remain standing. The undisputed fact that limitations were placed upon the type of work Searcy was permitted to perform demonstrates the existence of a disability adversely affecting his ability to work, i.e., an industrial disability. Shipp v. National Vendors, 862 S.W.2d 344, 345 (Mo.App.1993). Even though an employee is able to work everyday and suffers no loss of income, a disability which prevents the employee from performing all the normal duties of his employment is an industrial disability. Id. at 345-46. ¹

Although the Commission's finding that Searcy's pre-existing disability was not industrial in nature is not supported by the evidence, the Commission's ultimate determination that the Second Injury Fund was not liable is supported by the record. The presence of a pre-existing industrial disability, in and of itself, is not enough to induce Second Injury Fund liability. To create Second Injury Fund liability, the...