Shipp v. National Vendors, No. 62128

• Decision Date: 20 April 1993
• Docket Number: No. 62128
• Parties: Titus SHIPP, Employee/Respondent, v. NATIONAL VENDORS, Employer, and Insurance Company of North America, Insurer, and Treasurer of Missouri, as Custodian of the Second Injury Fund, Additional Party/Appellant.
• Court: Missouri Court of Appeals

Page 344

862 S.W.2d 344

Titus SHIPP, Employee/Respondent, v. NATIONAL VENDORS, Employer, and Insurance Company of North America, Insurer,

and

Treasurer of Missouri, as Custodian of the Second Injury

Fund, Additional Party/Appellant.

No. 62128.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 20, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 18, 1993.

Case Transferred to Supreme Court June 29, 1993.

Case Retransferred to Court of Appeals Oct. 26, 1993.

Original Opinion Reinstated Nov. 9, 1993.

J. Patrick Chassaing, Keith K. Cheung, St. Louis, for appellant.

James C. Brandenburg, St. Louis, for respondent.

CARL R. GAERTNER, Presiding Judge.

The Treasurer of Missouri (Appellant), as custodian of the Second Injury Fund (SIF) appeals from an award of the Labor and Industrial Relations Commission (Commission). The Commission modified the award of the Administrative Law Judge (ALJ) from permanent partial disability to permanent total disability for which the SIF was liable. We reverse.

Titus Shipp (claimant) filed a claim for compensation on May 16, 1988. He alleged that while employed by National Vendors (employer) he incurred an occupational disease on or before February 19, 1987. Claimant worked for employer as a metal grinder and polisher for twenty-three years prior to February of 1987. He claims that he suffered a seizure while at work on February 19, 1987. He was initially treated for this seizure at Cochran VA Hospital and later at Gateway Community Hospital. He was diagnosed with chronic obstructive pulmonary disease.

The claim was heard before an ALJ on January 31, 1992. Prior to this hearing the claim against the employer was settled for 10 percent permanent partial disability referable to the lungs. The only issue left for the ALJ was the liability of the SIF.

Dr. Calman testified on behalf of claimant. He examined claimant and diagnosed him with pulmonary fibrosis and chronic obstructive pulmonary disease. Dr. Calman attributed the pulmonary problems to claimant's job as a grinder where he breathed metal dust and rated him 50 percent permanently and partially disabled from the pulmonary problems. Dr. Calman also testified that claimant suffers from cirrhosis of the liver, ascites, alcoholism and fluid in the abdomen. Dr. Calman rated claimant permanently and totally disabled when his pulmonary problems are combined with his other conditions.

Dr. Walters also examined claimant but testified for the SIF. He stated that claimant suffered from chronic obstructive pulmonary disease which was caused by some combination of breathing metal dust and smoking cigarettes. Dr. Walters also testified that claimant suffered from brain atrophy, cirrhosis of the liver, and congestive heart failure none of which were caused or aggravated by breathing metal dust. Dr. Walters rated claimant 15 percent permanently partially disabled due to the pulmonary problems. Additionally, he rated claimant 10 percent permanently partially disabled each for the heart, the liver and the brain problems.

Lastly, Dr. Bruce examined claimant at the request of employer. He rated claimant 20-30 percent disabled as a result of the pulmonary disease.

The ALJ issued his award on March 12, 1992. He found that claimant was 15 percent permanently partially disabled each for his stomach, hypertension and arthritis in the back and neck plus the 10 percent settlement for the lungs. Applying a 10 percent load he found the SIF liable for $156.71 a week for 22 weeks. Claimant applied for review with the Commission. The Commission modified the ALJ's decision and found that claimant was permanently and totally disabled for which the SIF was liable. The payments amounted to $104.48 for 40 weeks and $261.19 for the remainder of claimant's life.

Appellate review of a worker's compensation award is governed by § 287.495 RSMo.1986. We must affirm the Commission's award unless the facts found by the Commission do not support the award or unless the record fails to contain substantial and competent evidence to warrant the making of the award. Carron v. St. Genevieve School Dist., 800 S.W.2d 64, 67 (Mo.App.1990).

Within this narrow scope of judicial review, we are constrained to hold that the testimony of Dr. Calman, found to be credible by the Commission majority, supports its conclusion that claimant is totally and permanently disabled. Carroll v. Loy-Lange Box Co., 829 S.W.2d 86, 89 (Mo.App.1992). Both Dr. Calman and Dr. Walters testified that the claimant suffered from a percentage of disability caused by emphysema, cirrhosis of the liver, chronic alcoholism, heart and stomach disease prior to the work-related disease discovered in February, 1987. The crucial issue in this case is whether or not these pre-existing conditions were shown to be "industrial disabilities."

In order to recover for permanent total disability from the SIF claimant must show that a pre-existing or previous disability combined with the latest injury resulted in total and permanent disability. Section 287.220.1. Pre-existing or previous disability has been defined as an "industrial disability." Wilhite v. Hurd, 411 S.W.2d 72, 77 (Mo.1967). An industrial disability is a disability that adversely affects a claimant's ability to work or his earning capacity rather than a physical impairment as such. Carron v. St. Genevieve School Dist., 800 S.W.2d 64, 68 (Mo.App.1990), citing Wilhite v. Hurd, 411 S.W.2d at 77.

In Meilves v. Morris, 422 S.W.2d 335 (Mo.1968), claimant failed to prove by substantial evidence that her many "bodily infirmities" were industrially disabling. The court, in reversing the Commission noted there was no evidence that these infirmities prevented claimant from performing any part of her usual and customary duties or that they limited her to working part-time. Meilves at 338-339. In Jones v. Jefferson City School Dist., 801 S.W.2d 486 (Mo.App.1990) the court found that claimant's pre-existing condition, a back injury, was not an industrial disability. Claimant had not missed work due to the injury and in fact had not missed work for a sixteen-year period. Claimant also swam, danced and water skied after the back injury. Id. at 489. Carron v. St. Genevieve School Dist., 800 S.W.2d 64 also held that claimant's pre-existing condition, two laminectomies, was not an industrial disability. The court noted that the laminectomies did not prevent claimant from performing strenuous farm work or from gaining employment with the School District where she was subsequently injured. Id. at 68. Other cases have centered on similar criteria in determining that a pre-existing condition is not an industrial disability. Roby v. Tarlton Corp., 728 S.W.2d 586, 588 (Mo.App.1987), (low IQ of a laborer was not an industrial disability where he required no close supervision and where he worked steadily for twenty-five years); Weinbauer v. Grey Eagle Distributors, 661 S.W.2d 652, 654 (Mo.App.1983), (pre-existing condition was not an industrial disability where it did not impede claimant from performing his usual duties). See also Robinson v. Krey Packing Co., 467 S.W.2d 91, 94 (Mo.App.1971), and Anderson v. Emerson Electric Company, 698 S.W.2d 574, 576, 577 (Mo.App.1985).

Further, the cases which have held that claimant does suffer from an industrially disabling pre-existing condition involve different facts and circumstances from the case at bar. In Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363 (Mo.App.1992), the claimant had suffered two prior work-related injuries requiring surgery, four years of...