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Hembree v. Treasurer of Missouri

Court of Appeals of Missouri, Southern District, Second Division

July 2, 2014

HAROLD HEMBREE, Claimant-Appellant,
TREASURER OF THE STATE OF MISSOURI, as Custodian of the Second Injury Fund, Respondent-Respondent


For Claimant/Appellant: Thomas P. Carlton, Morrison, Webster & Carlton, Joplin, MO.

For Respondent: Chris Koster, Attorney General, Jefferson City, MO; Stephen Nathanael Freeland, Assistant Attorney General, Springfield, MO.

GARY W. LYNCH, J. - Opinion author. JEFFREY W. BATES, P.J. - concurs. MARY W. SHEFFIELD, J. - concurs.



Page 166

Harold Hembree (" Claimant" ) appeals the Labor and Industrial Relations Commission's (" Commission" ) decision in favor of the Second Injury Fund (" SIF" ) finding that Claimant was permanently totally disabled before his October 3, 2008 injury. Claimant contends that the Commission erred in reversing the decision of the Administrative Law Judge (" ALJ" ) because the Second Injury Fund did not present evidence from their own vocational expert witness supporting their position that Claimant had been previously rendered permanently totally disabled. Finding that the Second Injury Fund was not required to present its own vocational expert and deferring to the Commission's credibility determinations, we affirm.

Factual and Procedural Background

Claimant filed two claims against the Second Injury Fund: Injury Number 06-029777, pertaining to an injury occurring on March 3, 2006 (" 2006 Injury" ), and Injury Number 08-120622, pertaining to an injury occurring on October 3, 2008 (" 2008 Injury" ). Claimant was seeking permanent total or permanent partial disability benefits in both claims. Claimant had previously settled both claims against his employer, Jerry Bennett Masonry (" Employer" ). A hearing before an ALJ on both claims took place May 23, 2012.

At the time of the hearing, Claimant was sixty years old and unemployed. He did not complete high school, having left while in the eleventh grade in order to work. Claimant thereafter worked the majority of his life as a bricklayer, operating his own company, Hembree Masonry, for twenty-one years and subsequently working for Employer. Claimant also worked briefly as a cattle farmer and as a concrete crew foreman.

Page 167

On June 5, 2003, while working for Employer, Claimant fell five feet from scaffolding, and several heavy workplace items landed on top of him. As a result, Claimant experienced low back pain that occasionally extended into his buttocks and legs. Claimant also cut his head and cracked his ribs. Claimant settled a workers' compensation claim regarding this injury for 10 percent permanent partial disability to the body as a whole. According to Claimant, following this injury, he suffered chest, back, and bilateral leg pain and found it difficult to bend over or sit for long periods of time. Claimant was off work from the time of his injury until October 2003, when he returned to his job on light duty. Claimant fully returned to work without restrictions in December 2003, leaving Employer and working as a concrete crew foreman.

Claimant returned to Employer in 2006 and, on March 3 of that year, was again injured after falling to the ground from some scaffolding eighteen feet above. Claimant cracked three ribs and suffered a collapsed right lung, which required placement of a chest tube. Claimant further suffered comminuted intra-articular distal radius and ulnar fractures to his right wrist that were treated via closed reduction with placement of an external fixator. That wrist later developed post-traumatic carpal tunnel syndrome requiring carpal tunnel release. Additionally, Claimant injured his right shoulder; an MRI scan revealed a superior labrum anterior to posterior tear, severe tendinopathy of the supraspinatus, and arcomioclavical arthrosis. This injury was initially treated by injection in August 2006, but Claimant eventually underwent surgery the following December, which included a distal clavicle resection, biceps tenodesis, labral debridement, and subacromial decompression. At the same time, Claimant received a right hand and wrist manipulation due to recurring stiffness in that area.

Claimant continues to have severe stiffness in his right fingers and wrist, and Claimant is unable to make a closed fist with his right hand. He further has ongoing strength and range-of-motion loss in his right shoulder, which he cannot use without pain. Claimant also experiences pain and swelling in his right hip and leg, both of which were severely bruised in the 2006 Injury. Finally, Claimant continues to have pain in his right chest wall, as well as intermittent episodes of shortness of breath.

Following the 2006 Injury, Claimant was off work for almost eight months. Financial considerations eventually forced Claimant to return to work for Employer. Claimant's injuries prevented him from returning to work as a bricklayer, however, so he returned to Employer as a " tuck pointer" or " clean-up man." This position involved sweeping floors, washing and cleaning bricks, and rubbing and smoothing walls in preparation for painting. Although ordinarily each bricklayer is responsible for completing these tasks individually, Employer created the exclusive " tuck pointer" position for Claimant because of his limitations.

Although Claimant is right-handed, the 2006 injuries to his right hand left Claimant with " hardly any use of it[,]" and Claimant was forced to rely almost exclusively on his left hand to perform his tuck-pointer duties. Because of the repetitive nature of those duties, Claimant went on to develop a ganglion cyst in his left hand, which prevented him from using his left hand to complete his work. While Claimant was told that surgery could remove the cyst, such surgery would result in Claimant ...

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