Case Summary for December 11, 2012

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Case Summary for December 11, 2012

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Tuesday, Dec. 11, 2012

____________________________________________________________________________________________________

SC92834
Treasurer of the State of Missouri-Custodian of The Second Injury Fund v. James Witte
Cole County
Eligibility for second injury fund benefits
Listen to the oral argument:

The second injury fund was represented during arguments by Rochelle Reeves of the attorney general's office in Jefferson City, and Witte was represented by Douglas B. Salsbury of The Miller/Salsbury Law Firm in Eureka.

James Witte was injured in April 2007 when he slipped on frozen concrete while working for Show-Me Livestock Co-op. Witte fractured his right hip and underwent an open reduction and internal fixation hip surgery. In April 2009, a doctor performed an independent medical evaluation of Witte and determined that the April 2007 workplace injury resulted in a 30-percent permanent partial disability to Witte’s right hip and a 20-percent permanent partial disability to his body as a whole. The doctor also made determinations that, prior to the April 2007 injury, Witte had additional disabilities due to certain preexisting conditions. He determined that Witte’s body as a whole was 20-percent disabled due to depression and anxiety, 15-percent disabled due to diabetes, 15-percent disabled due to problems with his gastrointestinal system, and 10-percent disabled due to problems with his lumbar spine. The doctor further determined that Witte had a 20-percent disability in his left eye and a 15-percent disability in his right leg. Witte sought compensation. Prior to a hearing, Witte settled his primary claim for injuries from the April 2007 workplace accident with his employer’s insurer for a 20-percent disability to his body as a whole and a 30-percent disability to his right hip. The case proceeded to hearing to determine the nature and extent of second injury fund liability. At the hearing, Witte’s doctor testified that the preexisting disabilities coupled with the primary injuries created a greater degree of disability than the sum of the individual conditions. The administrative law judge found that Witte had failed to prove he was entitled to permanent partial disability benefits from the second injury fund. Witte sought review from the labor and industrial relations commission, which reversed the administrative law judge’s determination and awarded second injury fund benefits. The second injury fund appeals.

The fund argues the commission erred in awarding Witte second injury fund benefits. It contends the commission should not have included Witte’s preexisting disabilities in calculating the fund’s liability. The fund asserts that section 287.220.1, RSMo, requires a preexisting permanent partial disability to meet certain qualifications: If the injury is to the body as a whole, the disability must equal at least 50 weeks of compensation or, if the injury is to a major extremity only, the injury must have caused at least a 15-percent permanent partial disability. It argues that this threshold should be read in the alternative, not in the cumulative, and that none of Witte’s preexisting conditions qualifies for compensation under either threshold and, therefore, should not have been given consideration by the commission.

Witte responds the commission correctly awarded him second injury fund benefits. He argues his preexisting disabilities should be included in calculating the fund’s liability. Witte contends he proved by competent and substantial evidence that both his primary injuries and preexisting disabilities exceeded the requirements necessary to trigger second injury fund liability. He asserts the primary injuries coupled with the preexisting disabilities result in a greater disability than the simple sum of the disabilities.

SC92842
Joseph Salviccio v. Treasurer of the State of Missouri as Custodian of The Second Injury Fund
St. Louis city
Eligibility for second injury fund benefits
Listen to the oral argument:

The second injury fund was represented during arguments by Cara L. Harris of the attorney general's office in Springfield, and Salviccio was represented by Elizabeth J. Ituarte of Kriegel & Ituarte PC in St. Louis.

Joseph Salviccio was injured in November 2008 when he twisted his left knee while lifting pieces of metal while working as a machinist for Western Supplies Company. Salviccio underwent surgery for his knee and subsequently compensation. Prior to a hearing, Salviccio settled his primary injury claim with his employer for a 20-percent disability to his left knee. He also settled his employer’s liability for two prior physical problems from which he alleges continuing disability: an injury to his left little finger and liability for two hernia repairs. At the hearing, he alleged his prior disabilities entitled him to compensation from the second injury fund. A doctor who evaluated Salviccio testified that he rated these as a 25-percent permanent partial disability in Salviccio’s little finger, a 15-percent permanent partial disability of his body as a whole for the two hernias and a 20-percent permanent partial disability due to diabetes. The administrative law judge found that, while there was evidence that each of Salviccio’s prior physical conditions created some disability, none rose to the level necessary under section 287.220.1, RSMo, to trigger second injury fund liability. Salviccio sought review with the labor and industrial relations commission, which reversed the administrative law judge’s determination and awarded second injury fund benefits. The second injury fund appeals.

The fund argues the commission erred in awarding Salviccio second injury fund benefits. It contends the commission should not have included Salviccio’s preexisting disabilities in calculating the fund’s liability. The fund asserts that section 287.220.1 requires a preexisting permanent partial disability to meet certain qualifications: If the injury is to the body as a whole, the disability must equal at least 50 weeks of compensation or, if the injury is to a major extremity only, the injury must have caused at least a 15 percent permanent partial disability. It argues that this threshold should be read in the alternative, not in the cumulative, and that none of Salviccio’s preexisting conditions qualifies for compensation under either threshold and, therefore, should not have been given consideration by the commission.

Salviccio responds the commission correctly awarded him second injury fund benefits. He argues the commission acted in accordance with section 287.220.1 in awarding the funds. Salviccio contends that the award was not obtained by fraud and that the facts presented at the hearing support the award. He asserts there was competent and sufficient evidence to support his award of second injury fund benefits. Salviccio argues the commission was acting within its statutory power in awarding him second injury fund benefits.

SC92850
William Dyson v. Tresurer of Missouri as Custodian of Second Injury Fund
St. Louis city
Eligibility for second injury fund benefits
Listen to the oral argument:

The second injury fund was represented during arguments by Rochelle Reeves of the attorney general's office in Jefferson Cit; Dyson did not present an oral argument.

William Dyson was injured in June 2008 when he injured his right shoulder while loading and unloading barrels and cases of beer while working for D & D Distributors. He underwent conservative treatment and later surgery. He sought compensation. Prior to a hearing, Dyson settled with his employer for a 25-percent permanent partial disability of his right shoulder. A doctor evaluated Dyson for the right shoulder injury, which he rated as 65-percent permanently partially disabled; a previous injury to his neck, which the doctor rated as causing a 15-percent permanent partial disability to his body as a whole; and a previous right ankle injury, which the doctor rated as 20-percent permanently partially disabled. The administrative law judge found that the shoulder injury coupled with some of the preexisting injuries met the threshold to qualify for second injury fund benefits but disallowed benefits for the preexisting right ankle injury. Dyson sought review from the labor and industrial relations commission, which modified the administrative law judge’s determination and awarded second injury fund benefits for all of the preexisting injuries. The second injury fund appeals.

The fund argues the commission erred in awarding Dyson second injury fund benefits. It contends the commission should not have included Dyson’s preexisting disability in calculating the fund’s liability. The fund asserts that section 287.220.1, RSMo, requires a preexisting permanent partial disability to meet certain qualifications: If the injury is to the body as a whole, the disability must equal at least 50 weeks of compensation or, if the injury is to a major extremity only, the injury must have caused at least a 15 percent permanent partial disability. It argues that this threshold should be read in the alternative, not in the cumulative. The fund further contends the commission made no findings regarding the effect of the ankle injury on Dyson’s employability and there is no evidence that the ankle disability was a hindrance or obstacle to Dyson’s employment or reemployment. It asserts Dyson’s preexisting condition does not qualify for compensation under either threshold and, therefore, should not have been given consideration by the commission.

Dyson responds the commission correctly awarded him second injury fund benefits. He argues his preexisting disabilities properly were considered in determining his eligibility for second injury fund benefits. Dyson contends the plain and simple language of section 287.220.1 requires a two-step process to determine first if a claimant meets the thresholds to qualify for an award from the second injury fund and then whether all disabilities may be shown to be a hindrance or an obstacle to employment. Dyson asserts the commission also correctly awarded 7.5-percent permanent partial disability for his ankle because there is evidence the injury is a hindrance or obstacle to his employment and reemployment.

SC92867
Eric Buhlinger v. Treasurer of Missouri as Custodian of Second Injury Fund
St. Louis County
Eligibility for second injury fund benefits
Listen to the oral argument:

The second injury fund was represented during arguments by Cara L. Harris of the attorney general's office in Springfield, and Buhlinger was represented by Dean L. Christianson of Schuchat, Cook & Werner in St. Louis.

Eric Buhlinger was injured in August 2008 when he hit his head on the crossbar of a skid loader while working for Bryant Company, a roofing company. He suffered a concussion and lost consciousness for a few minutes, awaking with a burning pain in his neck, back and shoulder. He underwent various treatments, including shots, radio frequency neurolysis surgery and neck surgery. Buhlinger sought compensation. Prior to a hearing, he settled with his employer for a 27.5-percent permanent partial disability of his neck, a 5-percent permanent partial disability resulting from the concussion and a 5-percent permanent partial disability resulting from a prior injury to his left elbow. The administrative law judge found Buhlinger had a 17.5-percent permanent partial disability in his left foot from a prior injury, coupled with a 27.5-percent permanent partial disability to his body as a whole from the neck injury, a 5-percent permanent partial disability to his body as a whole from the concussion and a 5-percent permanent partial disability in his left elbow. On review, the labor and industrial relations commission agreed with the administrative law judge’s award of second injury fund benefits. The fund appeals.

The fund argues the commission erred in awarding Buhlinger second injury fund benefits. It contends the commission should not have included Buhlinger’s primary disabilities in calculating the fund’s liability. The fund asserts that section 287.220.1, RSMo, requires a permanent partial disability to meet certain qualifications: If the injury is to the body as a whole, the disability must equal at least 50 weeks of compensation or, if the injury is to a major extremity only, the injury must have caused at least a 15 percent permanent partial disability. It argues that this threshold should be read in the alternative, not in the cumulative, and that not all of Buhlinger’s injuries meet the statutory requirements to qualify for compensation under either threshold and, therefore, should not have been given consideration by the commission.

Buhlinger responds the commission correctly awarded him second injury fund benefits. He argues the commission correctly included his primary disabilities in determining the fund’s liability. Buhlinger contends the plain and simple language of section 287.220.1 requires a two-step process to determine first if a claimant meets the thresholds to qualify for an award from the second injury fund and then whether all disabilities may be shown to be a hindrance or an obstacle to employment.