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Brashers v. Treasurer of the State As Custodian of the Second Injury Fund

Court of Appeals of Missouri, Southern District, Second Division

July 22, 2014


Page 153



CARA L. HARRIS, Springfield, MO, for Appellant.

DARREN J. MORRISON, Springfield, MO, for Respondent.




Page 154

The Treasurer of the State of Missouri as Custodian for the Second Injury Fund (" the Fund" ) appeals the award of the Labor and Industrial Relations Commission (" the Commission" ) that found Carolyn Martha Brashers (" Claimant" ) entitled to receive permanent, total disability benefits from the Fund. Claimant was working as a bus monitor for Springfield Public Schools (" SPS" ) when she was injured in a fall at work on January 8, 2009 (" the work injury" ).

Page 155

The Fund first contends that the award was not supported by substantial and competent evidence based on the Commission's finding that Claimant was " only permanently and partially disabled prior to the work injury" because the whole record shows that Claimant was already permanently and totally disabled (" PTD" ) at the time she suffered the work injury. Alternatively, the Fund claims that if the Commission correctly found that Claimant's earlier continued employment constituted evidence that she was not PTD before the work injury, then Claimant was not rendered PTD by " a combination of [the] work injury . . . and her preexisting disabilities" because she " returned to her regular job" following the work injury.

Finding no merit in either assertion, we affirm.

Governing Law and Applicable Principles of Review

For the Second Injury Fund to be liable, the claimant's preexisting disability and disability from a subsequent injury must combine in one of two ways: " (1) the two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone and of itself; or (2) the preexisting disability combined with the disability from the subsequent injury to create permanent total disability."

Schussler v. Treasurer of State-Custodian of Second Injury Fund, 393 S.W.3d 90, 98 (Mo. App. W.D. 2012) (quoting Uhlir v. Farmer, 94 S.W.3d 441, 444 (Mo. App. E.D. 2003)), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 and 224 (Mo. banc 2003)[1]; see also section 287.220.1.[2]

The language of the statute " applies to a claimant who has a 'preexisting permanent partial disability,' not to claimants who are already [PTD]." Schussler, 393 S.W.3d at 98. " The determination of whether a claimant is [PTD] is based upon the claimant's ability to compete in the open labor market[,]" Blackshear v. Adecco, 420 S.W.3d 678, 681 (Mo. App. E.D. 2014), and " [w]hen [a claimant] became PTD [is] a fact issue within the special province of the Commission." Stewart v. Zwiefel, 419 S.W.3d 915, 917 (Mo. App. S.D. 2014) (citing Schussler, 393 S.W.3d at 96).

Article V, section 18 of the Missouri Constitution provides that we review the Commission's award to determine whether the award is " supported by competent and substantial evidence upon the whole record." See also Hampton, 121 S.W.3d at 222. " This court will not disturb the decision of the Commission on appeal unless it acted without or beyond its power, the award was procured by fraud, the facts do not support the award, or the award is not supported by sufficient competent evidence in the record." Palmentere Bros. Cartage Serv. v. Wright, 410 S.W.3d 685, 691 (Mo. App. W.D. 2013); see also section 287.495.1. " Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Hampton, 121 S.W.3d at 223. " When the record can support either of two opposed fact findings, the Commission's determination

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binds this court." Stewart, 419 S.W.3d at 917.

The Fund agrees that " [t]he question before this Court is one of a factual nature[.]" As a result, we " determine whether the Commission reasonably could have made its findings and reached its result based upon all of the evidence before it." Fitzwater v. Dep't. of Pub. Safety, 198 S.W.3d 623, 627 (Mo. App. W.D. 2006). " In making this determination, [w]e do not reweigh the evidence; the Commission is the judge of the weight to be given to conflicting evidence and the credibility of the witnesses." Palmentere, 410 S.W.3d at 691 (internal quotation and citation omitted).

Facts and Procedural Background

The evidence consisted of a joint factual stipulation that was read into the record by the Administrative Law Judge (" ALJ" ), plus exhibits consisting of depositions, medical records, and other documents.

Relevant Stipulated Facts

Claimant was working for SPS " subject to the Missouri Workers' Compensation Law" at the time of the work injury, and the work injury " arose out of and in the course and scope of employment." " [C]laimant reached maximum medical improvement on December 12, 2009[.]"

Other Submitted Evidence

1. Claimant's Deposition Testimony

Claimant provided the following testimony. In 1992, Claimant applied for (and eventually received) Social Security benefits based upon disability associated with " Moyamoya" -- a condition which caused strokes, followed by seizures and balance problems. Before the work injury, Claimant had undergone various surgeries, including " a neck surgery and fusion[,]" " carpal tunnel releases on both . . . hands[,]" " a rotator cuff repair on [her] right shoulder[,]" " arthroscopic surgeries" on both knees, and one knee replacement. Claimant described various medical conditions that she had in addition to Moyamoya, including depression, bilateral ulnar neuropathy, osteoarthritis, and fibromyalgia.

Claimant was not employed again until sometime around 2006-2007, when she went to work for a dress shop, where she worked eight hours per week " at the most." Hanging clothes and pinning pants on hangers caused her some pain, but she ultimately left the job because she was not " getting enough hours, and . ...

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