Williams v. Treasurer of the Miss. - Custodian of the Second Injury Fund

• Decision Date: 10 December 2019
• Docket Number: WD 82294
• Citation: 588 S.W.3d 919
• Parties: Harold WILLIAMS (Deceased); Dustin Williams, Appellant, v. TREASURER OF the STATE of Missouri - CUSTODIAN OF the SECOND INJURY FUND, Respondent.
• Court: Missouri Court of Appeals

588 S.W.3d 919

Harold WILLIAMS (Deceased); Dustin Williams, Appellant,

v.TREASURER OF the STATE of Missouri - CUSTODIAN OF the SECOND INJURY FUND, Respondent.

WD 82294

Missouri Court of Appeals, Western District.

OPINION FILED: December 10, 2019

Gary D. Witt, Judge

Harold Williams ("Williams") appeals the Final Award of the Labor and Industrial Relations Commission ("Commission") finding that Williams was not permanently and totally disabled and thus the Treasurer of the State of Missouri as Custodian of the Second Injury Fund ("Fund") had no liability. Williams raises three allegations of error. We affirm.

Factual and Procedural Background

Williams was born July 18, 1946. On December 3, 2000, while working as a truck driver for Dakota Coast, Inc. ("Dakota Coast"), he slipped and fell on oil at a gas station. He injured his right knee, low back, and left thumb as a result of the fall ("Primary Injury"). Williams underwent two surgeries for the injury to his right knee. He received three injections in his back. His left thumb was placed in a cast. Williams filed a workers' compensation claim against Dakota Coast based on this fall on March 21, 2001. He also brought a claim against the Fund alleging that a pre-existing back injury combined with his Primary Injury to render him permanently and totally disabled.

Williams continued to seek treatment for and complain of back and knee pain stemming from his Primary Injury. Immediately following the injury he was to receive physical therapy for his back and knee and be evaluated for possible back surgery. Before he could complete treatment, however, he was incarcerated for felony second-degree drug trafficking. He received no orthopedic treatment from 2002 to 2004 while he was incarcerated although he continued to complain of right knee and low back problems while in prison. He again sought treatment for the Primary Injury when he was released from prison but again was incarcerated for a parole violation in 2005 until May or June 2007. He sought an evaluation for back pain in September 12, 2008, but was again incarcerated on September 30, 2009, and remained incarcerated until his death on May 10, 2013. His death was caused by end stage liver disease caused by hepatitis C and cirrhosis of the liver and also having chronic obstructive pulmonary disease. His son who was the personal representative of Williams's estate, Dustin Williams, was substituted as a party for Williams.¹

Williams's Primary Injury claim was settled with Dakota Coast on January 30, 2015, for 33.7% permanent partial disability of the right knee; 5% permanent partial disability of the left knee; 15% permanent partial disability of the low back, and 7.5% permanent partial disability of the left hand. The question of Fund liability remained open for determination.

A hearing was held before an Administrative Law Judge ("ALJ") on July 11, 2017. The ALJ entered a Final Award finding that Williams was not permanently and totally disabled as a result of the combination of his Primary Injury and his pre-existing disability. Further, the ALJ found that, prior to his death, Williams never reached maximum medical improvement for his Primary Injury and, because the Fund is not liable for payment of permanent disability benefits until a claimant has reached maximum medical improvement, there could be no Fund liability. The ALJ also found that Williams's only preexisting condition was a lumbar spine condition and he failed to prove a synergistic effect between the preexisting spine condition and the Primary Injury resulting in a greater combined disability.²

Williams appealed the award of the ALJ to the Commission. The Commission decided the appeal based on the record of the hearing before the ALJ without hearing additional evidence.³ The Commission affirmed and adopted the Final Award of the ALJ but also issued a supplemental opinion to amend the findings as to maximum medical improvement and add additional discussion of the issues presented. The Commission found, contrary to the finding of the ALJ, that the record did support a finding that Williams had reached maximum medical improvement for his Primary Injury by the end of 2001. The Commission also specifically found that Williams was not credible in his testimony regarding his injuries. It additionally noted that: "Employee did not meet his burden to show [F]und liability because of his lack of credibility and because the evidence does not support that the pre-existing back injury synergistically combined with the primary injury." The Commission denied Fund liability, and this appeal followed.

Standard of Review

Under section 287.495⁴ we will affirm the award of the Commission unless the Commission acted in excess of its powers, the award was procured by fraud, the facts do not support the award, or insufficient competent evidence exists to warrant the making of the award. Section 287.495.1; Barker v. Sec'y of State's Office of Mo. , 752 S.W.2d 437, 441 (Mo. App. W.D. 1988). "We also review the findings and award of the Commission rather than those of the ALJ, to the extent that it departs from the ALJ's ruling. To the extent that the Commission affirms and adopts the ALJ's findings and conclusions, we review the ALJ's findings and conclusions." Small v. Red Simpson, Inc., 484 S.W.3d 341, 344 (Mo. App. W.D. 2015) (internal citation omitted). "[W]e examine the record as a whole to determine if the award is supported by sufficient competent and substantial evidence, or whether the award is contrary to the overwhelming weight of the evidence." Lawrence v. Treasurer of State-Custodian of Second Injury Fund , 470 S.W.3d 6, 12 (Mo. App. W.D. 2015) (citing Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 222-23 (Mo. banc 2003) ). "We defer to the Commission's credibility determinations and to the weight it accords the evidence, but we review issues of law, including the Commission's interpretation and application of the law, de novo. " Lawrence , 470 S.W.3d at 12. Because our review is based on the statutes in effect in 2000, we must construe the provisions of the workers' compensation statutes liberally "with a view to the public welfare" and substantial compliance with their terms is sufficient. Section 287.800; Small v. Red Simpson, Inc., 484 S.W.3d 341, 345 (Mo. App. W.D. 2015).

Discussion

Williams brings three allegations of error on appeal. First, he contends that the Commission erred in finding that there was not synergy between his preexisting back injury and the Primary Injury because synergy was not required as this was a claim for permanent total disability against the Fund. Second, the Commission erred in finding that Hepatitis C and its related liver problems and Williams's loss of a kidney were not preexisting disabling conditions. Third, the Commission's finding that there was no Fund liability was not supported by competent and substantial evidence and is against the overwhelming weight of the evidence.

I.

Williams's first point alleges that the Commission erred in finding that there was not synergy between Williams's preexisting back injury and his Primary Injury both because synergy is not required and because, even if it was required, Williams met his burden. Williams is correct that synergy is not required for a finding of permanent total disability against the Fund. See Leutzinger v. Treasurer of Mo. Custodian of the Second Injury Fund , 895 S.W.2d 591, 594 (Mo. App. E.D. 1995). The Fund does not dispute this point. The Fund, however, notes that the Commission's finding that Williams failed to prove synergy was related to the rejection of his claim for permanent partial disability as opposed to the permanent total disability claim at issue in this appeal. We agree. While the only challenge raised by Williams in his first point relied on is to the Commission's finding regarding permanent total disability, the ALJ and Commission also had before it a claim that Williams was permanently partially disabled resulting in Fund liability. The Commission did not state that synergy was expressly being considered in conjunction with the permanent total disability claim. Because synergy is a factor to be considered under a permanent partial disability claim, when the Final Award is read in its entirety, once the Commission found that Williams failed to establish that he was permanently and totally disabled the Commission was then required to decide the issue of synergy in regard to the partial disability claim.

All parties are in agreement that evidence of synergy is not required for a finding of permanent total disability, and as that is the only claim raised in the first point on appeal, we need not address Williams's argument that he did, in fact, prove synergy between the injuries. All discussion as to synergy is only relevant to a discussion of permanent partial disability which has not been challenged by Williams on appeal. Thus, we find his first point on appeal to be without merit, and it is denied.

II.

Williams's second point on appeal contends that the Commission erred in finding that Williams's hepatitis C and related liver problems as well as his loss of a kidney were not preexisting conditions because there were no medical opinions to support such a finding. Williams contracted hepatitis C in the 1970s. Following his Primary Injury, Williams underwent an MRI that revealed a cancerous mass on his right kidney requiring surgery to remove the kidney on February 13, 2001.

Williams alleges that Dr. Jeffrey Parmet ("Dr. Parmet") offered uncontroverted medical testimony that Williams's hepatitis C and kidney problems were preexisting conditions that constituted a hindrance or obstacle to employment. While we defer to the Commission on questions regarding the credibility of witnesses, the Commission cannot substitute its judgment for that of a qualified medical expert on the question of causation. Angus v. Second Injury Fund , 328 S.W.3d 294, 300 (Mo. App....