Winingear v. Treasurer of State-Custodian 2nd Injury Fund, WD 78398

• Decision Date: 03 November 2015
• Docket Number: WD 78398
• Citation: 474 S.W.3d 203
• Parties: Frederick Winingear, Appellant, v. Treasurer of the State of Missouri–Custodian 2nd Injury Fund, Respondent.
• Court: Missouri Court of Appeals

474 S.W.3d 203

Frederick Winingear, Appellant,

v.Treasurer of the State of Missouri–Custodian 2nd Injury Fund, Respondent.

WD 78398

Missouri Court of Appeals, Western District.

OPINION FILED: November 3, 2015

Christine Kiefer, Jefferson City, MO, Counsel for Appellant.

Maggie Ahrens, Jefferson City, MO, Counsel for Respondent.

Before Division Two: Mark D. Pfeiffer, P.J., Lisa White Hardwick, and James Edward Welsh, JJ.

James Edward Welsh, Judge

Frederick Winingear appeals the Labor and Industrial Relations Commission's denial of his claim for permanent partial disability benefits from the Second Injury Fund. We affirm.

Background

On February 23, 2011, Frederick Winingear was working as a Security Aide at the Fulton State Hospital when he suffered an injury to his neck ("the primary injury") from a patient putting him in a "choke hold." Winingear promptly reported the incident to his employer, and the employer sent him for medical treatment. Winingear was diagnosed with neck strain. Winingear eventually entered into a settlement agreement with his employer and the employer's insurer for 4% permanent partial disability of the body as a whole, referable to the neck.

Winingear filed a claim against the Second Injury Fund alleging Fund liability for his permanent partial disability due to the combination of his primary neck injury and various preexisting disabilities. On August 4, 2014, the parties appeared before an Administrative Law Judge (ALJ) for a hearing. At the outset, the parties stipulated that Winingear was an employee of Fulton State Hospital when he sustained the injury to his neck on February 23, 2011, and that the injury occurred while he was working in the course and scope of his employment. The issues to be resolved included: (1) whether the claim was timely filed; (2) the nature and extent of his permanent partial disability, and (3) the liability, if any, of the Second Injury Fund.

Winingear testified at the hearing about his primary injury and his preexisting disabilities. He stated that, even after being treated for the February 2011 primary injury, he continues to have stiffness and range of motion problems in his neck but that the problems were not as bad as they were before. He testified that, following treatment, his neck pain has averaged a 3 or 4 on a 10–point scale. As to his prior injuries, Winingear stated that he injured his left shoulder, chest, and ribs in an incident on September 17, 2010, when he and other staff members were dealing with a combative patient. He sought treatment for those injuries and eventually had an arthroscopic repair of the left shoulder. Winingear thereafter settled with his employer for 20% of the left shoulder and 3% of the body as a whole, referable to the chest. Winingear testified about ongoing problems with his neck and left shoulder as they relate to his current job at the Dollar General Warehouse. He stated that he limits himself at work as to how much and how high he lifts due to his preexisting shoulder injury and that he has problems with looking up and working overhead, which he attributed to both his neck and his shoulder injury.

In September 2012, Winingear was evaluated by Dr. Raymond Cohen. Winingear introduced the doctor's report into evidence at the hearing. Dr. Cohen concluded, based on his examination of Winingear and his review of Winingear's medical records, that Winingear had diagnoses and resulting medical conditions that were a direct result of his 2010 and 2011 work injuries. He found that, as a result of the September 17, 2010 work injury, Winingear has permanent partial disabilities of 40% at the left shoulder level and 5% of the whole person at the chest level. Regarding the February 23, 2011 injury, Dr. Cohen opined that Winingear has a 10% permanent partial disability of the whole person at the cervical spine level. Dr. Cohen also agreed with Winingear's other previously adjudicated awards of 12.5% to the head/neck from a December 1, 2009 work-related injury, and a 12% whole body injury from a 1993 work-related injury to the neck. Dr. Cohen opined that

[Winingear]'s preexisting conditions or disabilities combine with the primary work-related injuries to create a greater overall disability than their simple sum. Due to the multiplistic effect, there is a load factor of 15%. His preexisting conditions or disabilities are industrially disabling.

The ALJ denied Winingear's claim against the Fund, and the Commission affirmed and adopted the ALJ's Award. The Commission found that Winingear has preexisting permanent partial disabilities of 20% of the left shoulder and 3% of the body as a whole (referable to the chest) that are a hindrance or obstacle to his employment, and that his primary injury resulted in a 4% permanent partial disability of the body as a whole, referable to the neck. It found, however, that "the credible and convincing evidence does not establish that there was the required synergy between the primary injury and the pre-existing condition(s)."¹ The Commission denied the claim for compensation from the Fund and held that all other issues are moot.

Discussion

Our review of the Commission's decision is governed by article V, section 18, of the Missouri Constitution and section 287.495, RSMo.² Article V, section 18, provides for judicial review of the Commission's award to determine whether the decision is authorized by law and whether it is "supported by competent and substantial evidence upon the whole record."³ Under section 287.495, we must affirm 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. In order to determine whether the award is supported by sufficient competent and substantial evidence, i.e., is contrary to the overwhelming weight of the evidence, we examine the evidence in the context of the whole record, viewing the evidence objectively. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222–23 (Mo. banc 2003). In the absence of fraud, however, the Commission's findings of fact are "conclusive and binding." § 287.495.1. Thus, we "defer to the commission on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence." Treasurer of State–Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013).

Section 287.220 sets forth the provisions of the Second Injury Fund and imposes liability on the Fund in certain cases of permanent disability where there is a preexisting disability. Lewis v. Treasurer of State, 435 S.W.3d 144, 152 (Mo. App. 2014). The purpose of the Fund is "to encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury." Witte, 414 S.W.3d at 460 (citation omitted).

Here, Winingear sought recovery for permanent partial disability benefits from the Fund. "Permanent partial disability" means a disability that is permanent in nature and partial in degree. § 287.190.6(1). For the Fund to be liable for such benefits under section 287.220.2,⁴ the claimant must prove that he incurred a compensable injury that resulted in a permanent partial disability and that, when he incurred that injury, he had a preexisting permanent partial disability (whether compensable or not) that was of such seriousness as to constitute a hindrance or obstacle to employment or re-employment and which meets certain statutory thresholds. Hoven v. Treasurer of State, Custodian of Second Injury Fund, 414 S.W.3d 676, 678 (Mo. App. 2013). In addition, the claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. Id. This is referred to as the "synergistic effect." Pierson v. Treasurer of State, 126 S.W.3d 386, 388–89 (Mo. banc 2004).

If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. Witte, 414 S.W.3d at 467 (citing Pierson, 126 S.W.3d at 389 ). In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability. See Calvert v. Treasurer of State, 417 S.W.3d 299, 314 (Mo. App. 2013) (reversing a portion of the Commission's award of Fund benefits after finding that there was "nothing before the Court" in the transcript or record constituting evidence of a "synergistic effect" between a certain preexisting disability and the primary injury).

Here, the Commission found that Winingear established that his primary injury resulted in a permanent partial disability and that, at the time of the primary injury, he had preexisting permanent partial disabilities referable to his shoulder and chest. The Commission even agreed that the preexisting disabilities constituted a hindrance or obstacle to employment at the time of the primary injury. The Commission concluded, however, that Winingear failed to establish that there was any "synergistic effect" as a result of the combination of the injuries.

In Point I , Winingear argues that the Commission erred in concluding that there was insufficient evidence of a "synergistic effect" to trigger Second Injury Fund liability. He contends that the facts found by the Commission do not support the award and that the evidence in the record does not warrant the making of the award, in that both he and Dr. Cohen testified to "a preexisting obstacle and a synergistic...