Lindell Garrett v. Wick's Truck Trailers, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties and considered the entire record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the associate administrative law judge dated September 2, 2005. The award and decision of Associate Administrative Law Judge David L. Zerrer, issued September 5, 2005, is attached hereto solely for reference.

The administrative law judge awarded employee permanent total disability benefits from the Second Injury Fund in the weekly amount of $259.91 beginning October 1, 2002, for 52 and 2/7 weeks, and thereafter, for life, in the weekly amount of $600.03.

The Second Injury Fund timely filed an Application for Review with the Commission asserting the award to be erroneous because: (1) the substantial and competent evidence did not support a finding that employee had a pre-existing permanent disability existing as of the date of the work related injury which was of such seriousness to constitute a hindrance or obstacle to employment or re-employment; (2) the associate administrative law judge misapplied section 287.220 RSMo in determining the disabilities attributable to the primary injury, the preexisting conditions, and the ultimate disability attributable to the combination of these disabilities; and (3) if employee is considered to be permanently totally disabled it is due to the primary injury or last injury considered alone.

The Commission finds there is a lack of competent and substantial evidence to base a finding of the presence of an actual and measurable disability at the time the work injury was sustained of such seriousness as to constitute a hindrance or obstacle to employment or re-employment. Due to this failure of proof, the claim against the Second Injury Fund on this point alone must fail. Consequently, the award against the Second Injury Fund issued by the administrative law judge is reversed. This finding is dispositive of the claim and renders moot the remaining two allegations of error in the Application for Review.

Section 287.220 RSMo provides that in a case of permanent total disability the Commission must make three findings respecting disability: (1) there must be a determination of the percentage of disability resulting from the

last injury standing alone; (2) there must be a finding that there was a pre-existing permanent disability that was a hindrance or obstacle to employment or re-employment; and (3) there must be a determination that all of the injuries and conditions combined, including the last injury, have resulted in the employee being permanently and totally disabled.

The Commission further notes that in a case of permanent partial disability under section 287.220 RSMo, there also must be a finding that there was a pre-existing permanent disability that was a hindrance or obstacle to employment or re-employment. Without such proof, a claim against the Second Injury Fund must fail, be it for permanent total disability or permanent partial disability.

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim, including Second Injury Fund liability. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968). The employee must prove the nature and extent of any disability by a reasonable degree of certainty. Downing v. Willamette Industries, Inc., 895 S.W. 650, 655 (Mo. App. 1995). The nature and extent of the permanent partial pre-existing condition must be proven by a reasonable degree of certainty. Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1973). Expert opinion evidence is necessary to prove the extent of the pre-existing disability. Plaster v. Dayco Corp., 760 S.W.2d 911, 913 (Mo. App. 1988).

In considering Second Injury Fund liability, and paraphrasing the language of the Missouri Court of Appeals, Eastern District, in the case of Messex v. Sachs Electric Company, 989 S.W.2d 206, 214 (Mo. App. E.D. 1999), the Commission must decide if there is competent and substantial evidence of a pre-existing disability and if there is a failure of proof, any claim against the fund must fail. As simply stated by the court on pages 214 and 215:

"When a claim is made against the Fund for permanent disability compensation, statutory language and case law make it mandatory that the claimant provide evidence to support a finding, among other elements, that he had a preexisting permanent 'disability'. Section 287.220.1; Leutzinger v. Treasurer of Missouri, Custodian of Second Injury Fund, 895 S.W.2d 591 (Mo.App. E.D.1995) (emphasis added). The disability, whether known or unknown, must exist at the time the workrelated injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed. Id.; Garcia v. St. Louis County, 916 S.W.2d 263, 266 (Mo.App. E.D.1995).

... Fund liability is only triggered by a finding of the presence of an actual and measurable disability at the time the work injury is sustained."

As developed below, the Commission cannot conclude or determine that employee proved the existence of a permanent disability at the time the work related injury was sustained being of such seriousness as to constitute a hindrance or obstacle to employment or re-employment. The Commission emphasizes that an employee's preexisting condition does not in and of itself constitute a hindrance or obstacle to employment or re-employment, or, a "disabling" condition. A condition which exists at the time of a work related accident which subsequently blossoms or blooms into a disability is not chargeable to the Second Injury Fund if the finally combined disabilities are greater than that which would have resulted from the accidental injury, considered alone and in and of itself. Wilhite v. Hurd, 411 S.W.2d 72, 77 (Mo. 1967). Pre-existing conditions are and must be distinguished from preexisting disabilities.

In summary fashion, employee testified as follows: he was 55 years old as of the date of trial; while a member of the United States military, he served in Vietnam; and during his military service, he experienced unsettling events and happenings performing his duties as a medic.

Upon discharge from service, employee briefly worked in Nebraska, then moved to Missouri where he was employed with Zenith for approximately two weeks and then began employment with Hutco Equipment Company in 1973; he worked for this same company and its successor for the next 26 years, or until 1999. (In approximately

1985, the name was changed to Ozark Utility Trailers.)

Employee began his employment as a laborer, he learned how to weld and repair and by 1986 he became the service manager; as service manager he supervised mechanics, originated estimates, opened and closed repair orders, supervised 12 to 20 people, and hired and fired employees. As service manager, employee dealt with customers both in person and by phone; he testified he had to prioritize activities, assign mechanics to certain projects and also at times perform physical labor in order to fulfill his job duties.

Employee left Ozark Utility Trailers in May of 1999, accepting new employment. Peterbilt approached him to start a trailer repair shop from the "ground up" in its behalf. Employee worked approximately 20 months with Peterbilt until the company closed its trailer shop in November of 2000. Employee performed similar type duties at Peterbilt that he had done at Ozark Utility Trailer, with the exception that he built and equipped the shop at Peterbilt, which he did not do at Ozark Utility Trailer.

Employee next was employed at Wick's Trailer Shop, employer, beginning February 2001. He worked for employer until October 1, 2002. Employee again was working as a service manager, where he performed similar duties as he had performed for Ozark Utility as well as Peterbilt; he opened a repair shop, supervised construction of the building, purchasing of equipment and parts, and again, employee interfaced with the public and customers, both in rendering estimates, opening and closing work orders, assigning jobs, hiring and firing employees, etc.

Employee believes he has had post-traumatic stress disorder since returning from Vietnam, with the principal symptom being nightmares. Employee was not diagnosed with post-traumatic stress disorder until approximately 2000, when it was suggested to him that he should go for an evaluation by an acquaintance of his who had been seeking treatment for the same symptoms.

Employee testified that he had no prior diagnosis of post-traumatic stress disorder or problems other than nightmares prior to 2000. He admitted that his nightmares never interfered with his work. He testified that his post-traumatic stress disorder is worse since the 2002 injury. Employee admitted that he did not believe his posttraumatic stress disorder interfered with or jeopardized his jobs. Employee was able to work successfully in supervisory capacities for many years and testified that he was recruited by a competing firm to open up and run its trailer repair shop. Employee admitted he never had any difficulty obtaining employment prior to October 1, 2002; he admitted he never had any difficulty maintaining employment prior to October 1, 2002; he offered no evidence indicating that he had difficulty performing any of his many job duties or that he missed any time from work due to his post-traumatic stress disorder. While working for his three employers between 1973 and 2002, employee interacted and interfaced with co-workers and customers throughout each and every work day and had very little if any difficulties.

In his 29 year employment history employee testified to approximately four incidents/altercations with coemployees and none with any customers. As to his current complaints employee testified his post-traumatic stress disorder is triggered when he has a nightmare; during the short-term he is fine with working with co-employees, but he does not like crowds and he does not trust many people; he does not presently believe he could return to his supervisory roll as he believes it is now difficult to deal with people; and employee did make himself available for work and searched for work after he separated from employment from the employer on October 1, 2002, but his search for work was not fruitful and he ended up collecting unemployment compensation benefits for approximately 38 to 42 weeks.

Employee testified that being discharged and separated from employment by employer came as a surprise to him. Employee was of the impression that his employment was going well and he was doing a "good job".

Mr. Wilber Swearingin, a vocational expert, testified in behalf of the employee. His testimony was based on an interview with employee and a review of medical records. The vocational opinion of Mr. Swearingin was that employee is permanently and totally disabled as the result of the combination of his pre-existing post-traumatic stress disorder and the work related injury to employee's right shoulder sustained October 1, 2002.

Mr. Swearingin based his opinion in part from his review of medical records indicating to him that employee had problems with anger, concentration and sleeping, and those factors caused difficulty with his employment prior to the injury susta