This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Linda L. Carlson, Appellant, v. Plant Farm, Defendant, Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent. Case Number: No. 53196 Handdown Date: 09/23/1997 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Steven A. Fritz Counsel for Respondent: Karen M. Speiser Opinion Summary: Carlson appeals from the Commission's denial of her workers' compensation claim against the Second Injury Fund (SIF) alleging she was permanently, totally disabled due to the combination of a work-related injury and her pre- existing psychological conditions. On appeal, Carlson claims: (1) the Commission's decision to deny her compensation was not supported by competent and substantial evidence, and was against the overwhelming weight of the evidence; (2) the Commission misinterpreted the law in evaluating her condition on the basis of whether it "substantially impaired" her ability to work, rather than whether it was a "hinderance or obstacle to her re-employment." AFFIRMED. Division I holds: (I) Carlson failed to show she was totally, permanently disabled in that she failed to present expert testimony establishing the extent of her pre-existing disability at the time of the accident; (2) the evidence of her past employment indicates she is employable; (3) the record contains very little evidence establishing the severity of her work related injury; (4) the Commission rejected the opinions of Carlson's witnesses, Dr. John T. Bopp, a psychologist and vocational expert, and Mr. Russell Wood, a psychologist, who testified as to her conditions; and, (5) the Commission did not find Carlson's own testimony that she was totally and permanently disabled to be persuasive. (2) The Commission properly considered whether Carlson's pre-existing condition constitutes a hinderance or
obstacle to her employment, not whether it "substantially impaired" her ability to work. Citation: Opinion Author: Joseph M. Ellis, Presiding Judge Opinion Vote: AFFIRMED. Lowenstein and Howard, JJ., concur. Opinion: On April 12, 1991, while employed by The Plant Farm in Sedalia, Missouri, Linda Carlson slipped and fell on a wet ramp injuring her low back. Carlson filed a workers' compensation claim against her employer and the Second Injury Fund (SIF). She subsequently settled her claim against The Plant Farm based on a 10% permanent partial disability rating. However, she continued to pursue her claim against the SIF, alleging she was permanently, totally disabled due to the combination of her work-related low back injury and pre-existing psychological conditions, including agoraphobia and panic attacks. The Administrative Law Judge (ALJ) found Carlson was permanently and totally disabled by this combination. The SIF appealed to the Labor and Industrial Relations Commission (the Commission), which reversed the ALJ's award, finding that Carlson was capable of maintaining employment despite her alleged pre-existing psychological disability. Carlson appeals from the Commission's decision. The record reveals that Carlson was originally diagnosed as suffering from agoraphobia, panic attacks, and depression in 1981. She is unable to predict when one of these attacks will occur, however at the onset of an attack, her heart begins to beat very rapidly, she begins to sweat, she feels very shaky, her legs get rubbery, and she is overcome by an impending fear that if she cannot get to a safe place she may die of a heart attack. An attack may last only a few minutes, or an entire day. Carlson was hospitalized for treatment of these symptoms in 1981 and 1989. In an effort to control her attacks, Carlson has taken a host of prescription medications and has participated in group and individual therapy with psychologists and counselors. Since Carlson was first diagnosed in 1981, she has held numerous jobs, most of which were sales positions. She worked as a cocktail waitress in 1981, but quit because she did not like the job. From 1983 to 1984, she worked at an electronics and appliance store as a salesperson and occasional bookkeeper, until the store went out of business. Between 1984 and 1986, Carlson worked as a temporary salesperson for two different clothing stores during their going- out-of-business sales. From 1986 to 1987, she worked behind the counter in the video rental department at an electronics store. By the time the store closed in 1989, she had been promoted to a floor salesperson in its audio and video department and was performing some bookkeeping duties. Thereafter, Carlson worked as a supervisor at a
clothing store, but quit in June of 1990 to stay home with her children when the school year ended. In January of 1991, Carlson began working at The Plant Farm. Her job included nurturing and transplanting plants, loading and unloading the delivery truck, and making deliveries. On April 12, 1991, while at work, Carlson slipped and fell on a wet ramp injuring her low back. Following the accident, Carlson saw Dr. Sher, a neurosurgeon, who determined that Carlson had suffered cervical and lumbar strains and told her the she could no longer do "that kind of work anymore." Carlson voluntarily quit her job based on this advice. On January 15, 1992, Carlson saw Dr. Jane Vale at the Columbia Orthopaedic Group. X-rays taken by Dr. Vale revealed only mild thoracic spondylosis and were otherwise negative. According to Dr. Vale, Carlson did not have a condition requiring surgery. Carlson was treated with prescription medications, physical therapy, and rest. Her symptoms improved as a result of her physical therapy. Following an office visit on March 24, 1992, Dr. Vale released Carlson to work with restrictions. On April 14, 1992, Dr. Vale made the following notes regarding Carlson's condition: . . . She indicates that she is markedly improved since last being seen. She has benefited significantly from additional exercise and conditioning. . . . Patient indicates she has markedly increased activity at home. She is doing Spring cleaning. She at times has to do things slower than she had previously though otherwise is doing very well. She has also been contacted by her previous employer and will be returning to day care this summer on an as needed basis. She is very excited about this. She also plans to initiate school in the fall and will be pursuing social services degree. She states she can either teach, do social services, or work in child care. Patient indicates that she is now having much more infrequent pain and is much better able to control her pain. She is in general resting well. * * * Patient presents to clinic with extremely positive affect and mood. She very readily changes position. She is noted to walk without limp and is able to toe and heel walk without motor weakness. She has markedly improved posture. Examination reveals no point tenderness of the cervical, thoracic, or lumbar sacral bony structures. Mild tenderness of the toe palpation is present of the thoracic intrascaplar soft tissue and of the SI joints. Patient has good range of motion of the cervical and lumbar spine and of the scapula. . . * * * Examination of the upper and lower extremities reveals negative straight leg raising. Full range of motion of the joints. Dr. Vale further opined that Carlson had suffered a 7% permanent partial impairment of the total body, and had "essentially reached maximum medical improvement and is knowledgeable in appropriate self-care." In July of 1992, Carlson obtained a position as a cashier for Casey's General Store, but quit after working only four hours because she "wanted to stay home." From August to December of 1993, Carlson worked at a daycare center. However, she quit because "there was a lot of lifting with babies," it was stressful, and she was afraid that when she had a
panic attack, she would be unable to take care of the children. From 1993 until her hearing before the ALJ on September 19, 1995, Carlson received no medical treatment for her back. Carlson admitted that she was still able to do household chores, including laundry, dusting, and vacuuming. Carlson first filed her claim for disability benefits with the Division of Workers' Compensation on May 24, 1991. (FN1) Following a hearing on September 19, 1995, the ALJ found that Carlson sustained a 15% permanent partial disability resulting from her work-related injury. The ALJ further determined that the resulting combination of Carlson's pre-existing condition and work-related injury rendered her permanently and totally disabled. On appeal, the Commission reversed the ALJ's award. Carlson appeals the Commission's decision. Our standard of review is set forth in Davis v. Research Medical Center, 903 S.W.2d 557 (Mo. App. W.D. 1995): The court applies a two-step process designed to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it. In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence. In doing so, it takes into consideration the credibility determinations of the Commission and, if those determinations as to witnesses who gave live testimony before the ALJ are different than those made by the ALJ, it also considers the ALJ's credibility findings as well as the reasons, if any are given, why the Commission differed with those findings. Findings and awards of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the court and fall within the court's province of independent review and correction where erroneous. And, where the findings of ultimate fact are reached not by a process of natural reasoning from the facts alone, but rather by application of law, it is a conclusion of law and subject to reversal by the court. Id. at 571. In the first step under the Davis standard, the court disregards "any evidence which might support any finding different from those made by the Commission." Id. at 566. In her first point on appeal, Carlson contends the Commission's award is not supported by sufficient competent and substantial evidence, and that it is against the overwhelming weight of the evidence. We disagree. To be entitled to Second Injury Fund benefits under section 287.220, a claimant must have a permanent "previous disability." Leutzinger v. Treasurer of Missouri, 895 S.W.2d 591, 592 (Mo. App. E.D. 1995).(FN2) The previous disability need only be a "hinderance or obstacle to employment or obtaining employment." Id.; section 287.220.1. In determining whether a pre-existing disability constit