In addition to the issues of the statute of limitations and jurisdiction, the administrative law judge's award addressed the following disputed issues:
- Whether employer/insurer procured employee's Kansas settlement by fraud or duress.
- Whether the terms of employee's February 28, 2013, Kansas workers' compensation settlement with employer/insurer, including employee's agreement to close out all claims in all jurisdictions related to his March 10, 2011, work injury, barred employee from pursuing a Missouri workers' compensation claim for the same injury.
- The Second Injury Fund's liability.
Whether employer/insurer procured employee's Kansas settlement by fraud or duress. The transcript of the February 28, 2013, settlement hearing before Kansas Division of Workers' Compensation Special Administrative Law Judge Jerry Shelor documents employee's pro se appearance and his request that the administrative law judge approve the settlement terms employer/insurer offered. Employer/insurer's attorney explained on the record that payment of the lump sum of $49,315.00 was "intended to close out any and all issues and injuries, any and all jurisdictions, and any dates of alleged accident that Mr. Austin may have sustained while working for AM Mechanical Service Company." *Transcript, 825*. The settlement was free of any attorney's fee lien.
Injury No.: 11-112011
Employee: Clifford Austin
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and left the issue of future medical open. At the hearing of his Missouri claim, employee acknowledged that nothing prevented him from consulting an attorney to review employer/insurer's offer to settle his Kansas workers' compensation claim.
Employee's attorney cites no authority in support of his contention that the terms of employee's Kansas settlement with employer/insurer are not binding because the employer/insurer and the Kansas administrative law judge failed to fulfill his obligation to advise employee about his rights under Missouri law. We concur with the administrative law judge's conclusion that the unrepresented employee entered into a settlement of his claim against employer/insurer on February 28, 2013, and voluntarily waived his right to pursue a claim against employer/insurer in any other jurisdiction, of his own volition and free will. We find as a factual matter, that employer/insurer did not procure the Kansas settlement by fraud or duress.
Whether the terms of employee's February 28, 2013, Kansas workers' compensation settlement with employer/insurer, including employee's agreement to close out all claims in all jurisdictions related to his March 10, 2011, work injury, barred employee from pursuing a Missouri workers' compensation claim for the same injury.
We adopt the administrative law judge's legal analysis relating to application of the full faith and credit clause of the United States Constitution to a workers' compensation matter involving dual jurisdiction. After a thorough discussion of the relevant case law, the administrative law judge found that the full faith and credit clause of the United States Constitution barred employee from pursuing a Missouri claim against the employer/insurer in Missouri because no substantive differences in Missouri and Kansas workers' compensation law applied to employee's claim that the language of the Kansas settlement agreement, including a provision closing out all issues in all jurisdictions involving injuries employee sustained while working for employer/insurer, was based on a Kansas substantive law that differed from Missouri's substantive law.
We agree. On appeal to the Commission, the employee asserted that distinct provisions of Kansas and Missouri law referencing "impairment" vs "disability" constitute substantive differences between the two states' laws that preclude Missouri from according full faith and credit to the provisions of employee's Kansas settlement. Employee's Kansas settlement, however, included employee's acceptance of the amount of $49,315.00 as a strict compromise of all issues. The settlement then expressly listed issues that included not only the nature and extent of permanent partial impairment but also, inter alia, employee's work disability. Transcript, 828. Employee's claim that the Kansas settlement was limited to consideration of impairment without recognizing his work disability is plainly incorrect.
We therefore find, as a matter of law, that the United States Constitution's full faith and credit clause precludes employee from pursuing a subsequent claim in Missouri for the same workers' compensation injury against the employer/insurer herein.
Injury No.: 11-112011
Employee: Clifford Austin
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**The Second Injury Fund's liability**
Because the court determined employee's claim timely and subject to Missouri jurisdiction, we now consider employee's Second Injury Fund claim. In language not essential to his award, the administrative law judge opined that employee's Kansas settlement with employer/insurer did not preclude employee from pursuing a claim against the Second Injury Fund in Missouri because the Second Injury Fund was not a party to employee's Kansas settlement. The Second Injury Fund did not appeal the administrative law judge's award.
We find that employee's agreement to settle any issues relating to this injury against employer/insurer in any jurisdiction does not preclude him from pursuing a Missouri claim against the Second Injury Fund, irrespective of whether the full faith and credit clause applies to the terms of employee's Kansas settlement.
**Nature and extent of disability**
To adjudicate employee's Second Injury Fund claim we must first determine the amount of disability attributable to employee's primary injury. § 287.220. We are not bound by the 27% body as a whole percentage of permanent impairment referenced in employee's Kansas settlement with employer/insurer. However, given employee's agreement to accept this amount in settlement all issues he might have raised in a regular hearing, including work disability, we rely on this assessment as the basis for our factual finding that employee sustained 27% permanent partial disability of the body as a whole related to his primary March 10, 2011, work injury.
Dr. James Stuckmeyer was the only medical expert who evaluated employee's preexisting disability in combination with disability from the primary injury. In his July 19, 2017, report, Dr. Stuckmeyer reviewed a multitude of work restrictions resultant from employee's preexisting injuries and his primary injury. He recommended vocational assessment of employee's employability in the open labor market. Dr. Stuckmeyer opined in advance that if employee were found permanently and totally disabled his condition would be due to a combination of employee's significant preexisting disabilities in combination with disabilities from the March 10, 2011, primary injury.
We credit the opinion of employee's vocational expert Michael Dreiling, who found employee unemployable in the open labor market due to restrictions related to his primary injury and preexisting injuries. We assign little weight to the contrary opinion of employer/insurer's vocational expert Kevin Ross, who admitted that his Labor Market Survey Report misidentified employee as "Mr. Ortega" (Transcript, 989) and incorrectly stated that employee had a valid Illinois driver's license. Mr. Ross did not bolster his credibility when he further admitted that in the course of performing twenty-five assessments over a period of approximately a year and a half he found not a single employee unemployable.
We find employee is permanently and totally disabled as a result of the combination of disability from his March 10, 2011, primary injury and preexisting disabilities, as of December 21, 2012, the date of his release to return to work by Dr. Adrian Jackson.