Lorentz v. Missouri State Treasurer

72 S.W.3d 315, 2002 Mo. App. LEXIS 864, 2002 WL 709739
CourtMissouri Court of Appeals
DecidedApril 25, 2002
DocketNo. 24308
StatusPublished
Cited by6 cases

This text of 72 S.W.3d 315 (Lorentz v. Missouri State Treasurer) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lorentz v. Missouri State Treasurer, 72 S.W.3d 315, 2002 Mo. App. LEXIS 864, 2002 WL 709739 (Mo. Ct. App. 2002).

Opinion

ROBERT S. BARNEY, Chief Judge.

Alfred Leon Lorentz, Jr., (“Claimant”) was injured on March 21, 1996, while working as an underground mining prospector for Doe Run Company (“Doe Run”). A piece of equipment weighing in excess of 800 pounds fell on him accidentally while he was drilling holes into rock to extract rock samples in an underground mine. He injured his ribs and low back. Claimant filed a claim against both Doe Run and the Missouri Second Injury Fund (“the Fund”). Doe Run and its insurer settled with Claimant for his claim based on 25 percent permanent partial disability of the body as a whole or 100 weeks. An Administrative Law Judge (“ALJ”) found Claimant to be permanently and totally disabled as a result of the primary injury of March 21,1996, but found the Fund was not hable for any pre-existing disability. The Labor and Industrial Relations Commission (“the Commission”) agreed that Claimant was permanently and totally disabled, but ruled that it was due to a combination of his primary injury and pre-existing disabilities and reversed the decision of the ALJ which found no liability on the part of the Fund. The Commission then awarded Claimant weekly benefits for the rest of his life, or as modified by law, payable by the Fund.

In its sole point on appeal, the Fund contends the Commission erred in finding the Fund hable for permanent total benefits because the facts did not support the Commission’s award. It argues that the overwhelming weight of the evidence supports a finding that if Claimant is perma[318]*318nently and totally disabled it is due to the 1996 injury alone.

Review is essentially a two-step process as described in Davis v. Research Med. Ctr., 903 S.W.2d 557, 570 (Mo.App.1995). We must first determine whether the whole record, viewed in the light most favorable to the award of the Commission, contains sufficient competent and substantial evidence to support the Commission’s award. Kizior v. Trans World Airlines, 5 S.W.3d 195, 199 (Mo.App.1999). If we find that it does, then we make a determination as to whether the award is against the overwhelming weight of the evidence. Id. In this second step, all of the evidence in the record is considered, including that unfavorable to the decision of the Commission. Id. “We defer to the Commission on issues encompassing the credibility of witnesses and the weight given to the testimony.” Id. “Conflicts in the evidence are to be resolved by the Commission.” Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo.App.1995). We independently review questions of law. “As always, the criteria should be applied liberally in favor of compensating the [Claimant].” Leutzinger v. Treasurer, 895 S.W.2d 591, 593 (Mo.App.1995).

For Second Injury Fund liability, a preexisting disability must combine with a disability from a subsequent injury 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.

Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App.1999); see § 287.220.1.1 “Under this section, for either condition, the employer is liable only for that disability attributable to or resulting from the last injury.” Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo.1966).

Given the factual scenario in the instant matter and the findings by the Commission that Claimant was permanently and totally disabled, “[i]t is with the second of these conditions that we are concerned.” Id; see Leutzinger, 895 S.W.2d at 594; § 287.220.1.2

That portion of section 287.220.1 pertaining to permanent total disability reads, in pertinent part, as follows:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be [319]*319due for permanent total disability under section 287.200 out of a special fund known as the “Second Injury Fund” hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141.

“Any pre-existing injury which could be considered a hinderance [sic] to an employee’s competition for employment in the open labor market should trigger Second Injury Fund liability.” Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo.App.1997); see Leutzinger, 895 S.W.2d at 593.

“Total disability is defined as the inability to return to any employment and not merely the employment in which the [Claimant] was engaged at the time of the accident.” Id. at 526; § 287.020.7. “The test for permanent total disability is the worker’s ability to compete in the open labor market in that it measures the worker’s potential for returning to employment.” Reese, 5 S.W.3d at 526; see Fletcher v. Second Injury Fund, 922 S.W.2d 402, 404 (Mo.App.1996). “The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this [Claimant] in his or her present physical condition.” Reese, 5 S.W.3d at 526; see Carlson, 952 S.W.2d at 373.

With the foregoing principles in mind, we now review the record. It shows that Claimant has a high school education without any specific formal training except on the job training. Early in his career he assisted his family in the logging business then engaged in heavy, semi-skilled work and undertook other semi-skilled jobs. At one point he was self-employed as a martial arts instructor, a carpenter, a heavy equipment operator, worked for International Hat Company in silk screening on a production line, and had various other jobs in logging or construction that involved substantial physical exertion.

Immediately after the March 21, 1996, accident described previously, he was taken to Salem Memorial Hospital and was seen by an orthopedic physician, Dr. William K. Harris, and was diagnosed with rib fractures and was placed on restricted work.

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Bluebook (online)
72 S.W.3d 315, 2002 Mo. App. LEXIS 864, 2002 WL 709739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lorentz-v-missouri-state-treasurer-moctapp-2002.