Court of Appeals of Missouri, Eastern District, First Division
Appeal from the Labor and Industrial Relations Commission.
Chris Koster St. Louis, MO, for appellant.
Andrew L. Mandel, St. Louis, MO, for respondent.
CLIFFORD H. AHRENS, Judge. Roy L. Richter, P.J., concurs. Glenn A. Norton, J., concurs.
CLIFFORD H. AHRENS, Judge
The Missouri State Treasurer, as Custodian of the Second Injury Fund, appeals the award of the Labor and Industrial Relations Commission in favor of Lawrence Miller. The Treasurer asserts tat Miller's pre-existing injury should not have been factored into the calculation of Fund liability because it hadn't reached maximum medical improvement at the time of the primary injury. We reverse and vacate the Commission's award and enter a modified award pursuant to our authority under Rule 84.14.
Mr. Miller had worked assembling aircraft for Boeing since 1987. Three injuries are relevant to his present claim against the Fund. In August 2006, Miller injured his cervical spine while installing a 300-pound windshield on an F-18. Conservative treatments provided little relief, so, in February and June 2007, Miller underwent MRIs that revealed disc degeneration and protrusion (later identified as herniation) at C5-6. Miller was referred for a surgical consultation but elected not to undergo surgery at that time. Instead, he received physical therapy and continued working without restrictions but had some difficulty maneuvering in tight spaces. In August 2007, Miller was in a motorcycle accident that resulted in multiple injuries and left chronic pain in his thoracic and lumbar spine. In September 2007, he fell through loose platform slats into a cockpit and tore the anterior cruciate ligament (ACL) in his right knee, the primary injury here.
The chronology of Miller's subsequent treatment is central to the Treasurer's appeal. In March 2008, Miller finally underwent surgery for his 2006 neck injury, receiving a discectomy and fusion at C5-6. His doctor determined that Miller's neck had reached maximum medical improvement (MMI) in July 2008. Miller settled his disability claim with Boeing regarding this injury for 27.5% PPD of the body as a whole referable to the neck. In December 2008, Miller underwent ACL reconstruction surgery on his right knee. His treating doctor for that injury found Miller to be at MMI as of March 2009. Miller settled this claim with Boeing for 35% PPD of the right knee.
Miller then sought further compensation from the Fund. An administrative law judge determined that Miller's 2006 neck injury and 2007 back injury both constituted pre-existing permanent partial disabilities (PPD) on the date of Miller's primary knee injury for purposes of calculating Fund liability. A majority of the Commission affirmed the award. One commissioner dissented in a separate opinion articulating the analysis now asserted by the Treasurer on appeal: that Miller's 2006 neck injury was not a pre-existing PPD for purposes of Fund liability because it hadn't yet reached MMI when the primary knee injury occurred.
Standard of Review
Our standard of review is set forth in section 287.495.1 RSMo 2000. An appellate court shall only review questions of law and may modify, reverse, remand or set aside an award only if the Commission acted without or in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award. Id. In the absence of fraud, the findings of fact made by the Commission within its powers shall be conclusive and binding. Id. This court will uphold the Commission's award if it is supported by competent and substantial evidence on the whole record. ...