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Gattenby v. Treasurer of State

Court of Appeals of Missouri, Western District, Fourth Division

February 28, 2017

RICHARD GATTENBY, Respondent,
v.
TREASURER OF THE STATE OF MISSOURI - CUSTODIAN OF THE SECOND INJURY FUND, Appellant.

         Appeal from the Labor and Industrial Relations Commission

          Before Mark D. Pfeiffer, Chief Judge Presiding, Thomas H. Newton, and Lisa White Hardwick, JJ.

          Thomas H. Newton, Judge.

         Mr. Richard Gattenby is a career plumber who suffered multiple work and non-work related injuries. He has injured his left ankle, both shoulders, and right knee in accidents related to his employment. On appeal, the Second Injury Fund (SIF) questions the validity of the permanent total disability award, asserting that injuries, outside the statute's limitations were considered to determine his disability and that substantial evidence does not exist to uphold the permanent total disability classification. We disagree and affirm.

         Mr. Gattenby, a career plumber, suffered a right knee injury in March 2014. This injury was the latest of five prior work and non-work related injuries. In 1977, the first injury resulted in the fusion of the toes on his left foot and the fusion of his left ankle. Mr. Gattenby's gait changed as a consequence of this injury forcing him to walk with a "real bad limp." He was unable to walk naturally, bend his ankle, flex his foot, navigate stairs, rise on his toes, walk backward, or walk easily on uneven ground. Though he did not miss work, he was in constant pain and struggled daily. From this injury, his disability was rated at 60 percent of the 155 week-level or 93 weeks of permanent partial disability.

         Mr. Gattenby also suffered two additional work related injuries in 2007 and 2009 resulting in a 17.5 percent disability to each shoulder. In 2010, Mr. Gattenby suffered a non-work related injury requiring several surgeries. He returned to work in 2012 and worked until the March 2014 injury giving rise to the current claim.

         As a result of the March 2014 injury, Mr. Gattenby suffers from continued knee pain, limited mobility, and the inability to squat. He can no longer kneel on either knee and has a diminished ability to navigate stairs. He was unable to return to his regular job after this injury and settled his primary claim for this injury with his employer for 15 percent disability of the knee, or 24 weeks of benefits.

         In April 2015, the parties appeared for a final hearing before an administrative law judge who determined that SIF is liable to Mr. Gattenby for permanent total disability benefits. At the hearing, Mr. Gattenby testified about his injuries as indicated above. In addition, both orthopedic surgeon Dr. Stuckmeyer and vocational expert Terry Cordray found Mr. Gattenby permanently and totally disabled as a result of the limitations from the primary injury combined with his preexisting limitations. The case was submitted to the Labor and Industrial Relations Commission (Commission) for review under section 287.480. In August 2016, it upheld the administrative law judge's award, concluding that the SIF is liable for permanent total disability benefits.

         This appeal follows.

         Legal Analysis

         Section 287.495.1[1] states that:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its ...

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