Richardson v. Missouri State Treasurer

254 S.W.3d 242, 2008 Mo. App. LEXIS 725, 2008 WL 2169014
Missouri Court of Appeals·Decided May 27, 2008·No. ED 90619·Published·Cited by 6 cases

Opinion

CLIFFORD H. AHRENS, Judge.

John Richardson (“Richardson”) appeals the award of the Labor and Industrial Relations Commission (“the commission”) affirming the finding of the administrative law judge (“ALJ”) in favor of the Missouri State Treasurer, as custodian of the Second Injury Fund (“Second Injury Fund”). Richardson claims the commission erred in affirming the ALJ’s award because there was insufficient evidence to support it. Finding no error, we affirm.

Richardson filed a claim for compensation with the Missouri Department of Labor and Industrial Relations, Division of Workers’ Compensation against his employer, General Motors (“GM”) and the Second Injury Fund alleging injuries to his neck, cervical spine, shoulders, thoracic spine, arms, hands, low back, knees and feet. Richardson entered into a stipulation for compromise settlement with GM. He received a lump sum payment of $11,463.82 based upon an approximate disability of seven and a half percent of each shoulder. A hearing was subsequently held on Richardson’s claim against the Second Injury Fund before an ALJ. The ALJ entered findings of fact and rulings of law, finding that Richardson failed to “persuade” that the combination of his preexisting disabilities with the disability from his last injury rendered him unemployable on the open labor market. Therefore, the ALJ found in favor of the Second Injury Fund and denied Richardson’s claim. Richardson filed an application for review with the commission. The commission affirmed the ALJ’s award, finding it was supported by competent and substantial evidence. Richardson now appeals.

Section 287.495.1 RSMo (2000) 1 provides that on appeal we may modify, reverse or remand the award of the commission only if we find:

(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

We no longer review the evidence in the light most favorable to the commission’s award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Instead, we review the record in its entirety and determine whether there is “sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Id. at 222-23. This determination is made after considering the evidence in the context of the record as a whole. Id.

In his sole point on appeal, Richardson claims the commission erred in affirming the ALJ’s decision because it was not supported by sufficient competent and substantial evidence in the record. Specifically, Richardson argues the ALJ’s conclusion that the opinion of James England, Jr., a rehabilitation counselor, was “flawed” because he failed to take into account all the expert medical opinions was not supported by sufficient evidence.

*244 Pursuant to section 287.220, the Second Injury Fund is liable in certain cases of permanent disability where there is a preexisting disability. The Second Injury Fund is responsible for that portion of disability attributable to the preexisting condition. Gassen v. Lieribengood, 134 S.W.3d 75, 79 (Mo.App.2004). If a claimant establishes either that the preexisting partial disability combined with a disability from a subsequent injury to create a permanent and total disability or that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, the Second Injury Fund is hable. Id. The worker’s ability to compete in the open labor market is the determining factor as to whether the combination of injuries resulted in permanent and total disability. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo.App.2007).

Richardson argues this case is “nearly” identical to Highley v. Von Weise Gear, 247 S.W.3d 52 (Mo.App.2008). In Highley, this court considered a similar argument concerning the commission’s finding of no permanent and total disability based upon the uncontradicted testimony of James England, Jr. The court discussed the separate standards regarding credibility determinations made by the commission and our court’s deference to such findings. Id. at 56-57. These standards were discussed in Copeland v. Thurman Stout, Inc., 204 S.W.3d 737, 743 (Mo.App.2006). First, the Copeland court noted the general rule that the acceptance or rejection of medical evidence is for the commission. Id. (citing Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993)). The commission may disbelieve uncontradicted or unimpeached testimony. Id. However, in Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 (Mo. banc 1960), the Supreme Court stated that where evidence is uncon-tradicted or unimpeached, “the reviewing court may find the award was not based upon disbelief of the testimony of the witnesses.” The Copeland court found these two standards to be compatible. 204 S.W.3d at 743. If the commission expressly declares it disbelieved uncontradicted or unimpeached testimony, the Alexander rule applies. Highley, 247 S.W.3d at 57 (citing Copeland, 204 S.W.3d at 743). However, if the record is silent regarding credibility, the Corp rule applies. Id.

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Richardson v. Missouri State Treasurer, 254 S.W.3d 242, 2008 Mo. App. LEXIS 725, 2008 WL 2169014 (Mo. Ct. App. 2008).

254 S.W.3d 242 (Richardson v. Missouri State Treasurer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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