Swafford v. Treasurer of Mo. As Custodian of Second Injury Fund

Decision Date15 February 2022
Docket NumberWD84562
CourtMissouri Court of Appeals



No. WD84562

Court of Appeals of Missouri, Western District, First Division

February 15, 2022

Appeal from the Labor and Industrial Relations Commission

Before W. Douglas Thomson, P.J., and Alok Ahuja and Karen King Mitchell, JJ.

Alok Ahuja, Judge.

James Swafford appeals from a Final Award issued by the Labor and Industrial Relations Commission, which denied Swafford's claim for workers' compensation benefits against the Second Injury Fund. Swafford suffered a work-related injury in October 2017. He contended that his 2017 primary injury combined with multiple preexisting medical conditions to render Swafford permanently and totally disabled. On appeal, Swafford contends that the Commission arbitrarily disregarded the expert testimony which he offered to establish a causal relationship between his preexisting medical conditions and his current disability. We reverse.

Factual Background

Swafford worked as a hostler for Waller Truck Company starting in 2014. Swafford's primary responsibility was transporting semi-trailers from one location to another.


Prior to his October 2017 primary injury, Swafford had multiple preexisting disabilities. First, Swafford suffered from ankylosing spondylitis (or "AS"), a congenital condition which caused Swafford's spine and rib bones to fuse together over time. This condition caused him "constant pain," difficulty breathing due to reduced chest expansion, "bad" or curved posture, and a limited range of motion.

Swafford also suffered from various cardiac conditions, including hypertrophic cardiomyopathy, mitral valve regurgitation, and atrial fibrillation. Swafford underwent multiple procedures to address these cardiac conditions. He was unemployed and received disability benefits between 2002 to 2007 due to his cardiac conditions. In addition to causing difficulty breathing, Swafford's cardiac conditions prevented him from treating the pain from his ankylosing spondylitis with non-steroidal anti-inflammatory drugs ("NSAIDs").

Lastly, Swafford had suffered from right shoulder pain since 2012, which was associated with his repetitive single-handed cranking of jacks used to adjust the height of semi-trailers weighing between 20, 000 and 50, 000 pounds. Starting in about 2016, Swafford was diagnosed with bursitis (or chronic pain and inflammation) in his right shoulder, which required steroid injections every three-to-four months.

Despite his preexisting conditions, Swafford was working full-time at Waller, without restrictions, until he suffered the primary workplace injury on October 6, 2017. On that date, Swafford slipped while getting out of a truck and was left hanging by his right arm. Swafford "felt a pop" in his shoulder. Swafford was diagnosed with a "moderately large rotator cuff tear" and a labrum tear, both confirmed by magnetic resonance imaging ("MRI"). Swafford's elbow was also painful and swollen following the incident.

Following the primary injury, Swafford has suffered "constant tightness in the right shoulder and significant pain." He has diminished grip strength. He


cannot raise anything above chest level without suffering tremors. He cannot lift a gallon of milk or throw anything overhead. Exercise increases the pain. Swafford testified that household activities have become more difficult and/or painful since his primary injury, and that he is no longer able to engage in his favorite hobbies of bowling, hunting, and fishing.

Swafford also reported that he sleeps poorly due to pain. He generally wakes up eight-to-ten times per night. Swafford cited his ankylosing spondylitis as the "main reason" for his sleep issues, but testified that the primary injury in October 2017 made his sleep "even worse." Swafford also complained that his right hand is now constantly numb at night.

Swafford was examined by Dr. Brent Koprivica, who assessed the extent of each of Swafford's preexisting disabilities. Dr. Koprivica found that all three of Swafford's preexisting conditions (ankylosing spondylitis; cardiac issues; and bursitis in the right shoulder) presented permanent and significant obstacles to employment prior to the primary injury. Dr. Koprivica also found that Swafford's preexisting disabilities "were of a level of significance that they had the potential to combine with the disability attributable to the October 6, 2017, work injury and result[ ] in enhanced disability." Dr. Koprivica attributed 25% permanent partial disability to the body as a whole as a result of Swafford's cardiac conditions, 25% permanent partial disability to the body as a whole due to Swafford's ankylosing spondylitis and chronic pain, and 10% permanent partial disability to the right upper extremity at the level of the shoulder relating to Swafford's preexisting shoulder injury. Dr. Koprivica rated the disability stemming from the October 6, 2017 work injury at 20% permanent partial disability to the body as a whole.

Dr. Koprivica found that there was a "significant synergistic effect" between Swafford's "significant preexisting industrial disabilities" and the additional disability stemming from the October 6, 2017 work injury. Dr. Koprivica opined


that the combination of Swafford's preexisting disabilities and the disability associated with the primary injury rendered him permanently and totally disabled.

Swafford's employer sent him to be examined by Dr. Erich Lingenfelter, an orthopedic surgeon. Dr. Lingenfelter opined that Swafford has "AC[, or acromioclavicular, ] joint arthropathy and mechanical impingement both from a fall as well as his pre-existing AS."[1] Dr. Lingenfelter also found that Swafford's October 2017 fall was the sentinel event causing the AC joint arthropathy and inflammatory bursitis. Dr. Lingenfelter found that Swafford is a "very poor candidate" for surgical treatment, given his "hypertrophic cardiomyopathy and other significant medical issues." Dr. Lingenfelter also attributed an "equal share [of the] blame" for Swafford's disability to his ankylosing spondylitis, as his AS has caused the scapula (or shoulder blade) to be "postured" in such a position that Swafford "cannot elevate and protract [his shoulder joint] regularly in order to allow more room for the supraspinatus outlet." Dr. Lingenfelter stated that this condition "creates the impingement phenomenon, . . . and is likely [an] equal . . . contributing factor" to the disability associated with Swafford's right-shoulder injury.

"In summary," Dr. Lingenfelter stated, Swafford "has significant preexisting pathology and some things that are equally contributing to his issues." While Dr. Lingenfelter found that Swafford's October 6, 2017 fall was the "sentinel event that created the chronic inflammatory bursitis," the condition is "likely exacerbated by his disease process."

Terry Cordray, a certified rehabilitation counselor, performed a vocational evaluation of Swafford. Cordray considered Swafford's preexisting disabilities, primary injury, and current physical limitations, as well as his age and levels of


skill and education. Cordray determined that Swafford is "totally vocationally disabled."

After settling his claim with his employer Waller, Swafford sought compensation from the Second Injury Fund. The Fund offered no evidence at his trial. Swafford's claim was rejected by an Administrative Law Judge ("ALJ"), who concluded that Swafford had failed to demonstrate that he suffered from a qualifying preexisting disability. Swafford applied for review by the Commission. In a two-to-one decision, the Commission affirmed the ALJ's decision. The Commission majority agreed with the ALJ that Swafford's preexisting disabilities either did not meet the required 50-week threshold specified in § 287.220.3(2)(a)a, [2]or that he had failed to prove that those preexisting conditions "significantly and directly aggravate[d] or accelerate[d]" his October 2017 primary work injury, as required by § 287.220.3(2)(a)a(iii).

Swafford appeals.

Standard of Review

This Court reviews all final decisions, findings, rules, and orders of the Commission to determine whether the same are supported by competent and substantial evidence upon the whole record. The Commission's decision will be affirmed unless: (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 do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award.

Annayeva v. SAB of TSD of City of St. Louis, 597 S.W.3d 196, 198 (Mo. 2020) (citations and internal quotation marks omitted). "An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).


"The Commission's factual findings are binding and conclusive only to the extent they are supported by sufficient competent evidence and were reached in the absence of fraud." Harris v. Ralls Cty., 588 S.W.3d 579, 594 (Mo. App. E.D. 2019) (citation omitted). We need not view the evidence in the light most favorable to the Commission. Hampton, 121 S.W.3d at 223. However, we "must defer to the commission's findings on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence." Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. 2015). "Questions of law are reviewed de novo. [We are] not bound by the commission's interpretation and application of the law, and no deference is afforded to those determinations." Id.


"The Fund compensates workers who become permanently and totally disabled as a result of a combination of past disabilities and a later primary work injury." Lynch v....

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