              In the Missouri Court of Appeals
                      Eastern District
                                       DIVISION TWO
JAMES WURTH,                                    )   No. ED107335
                                                )
       Appellant,                               )   Appeal from the Labor and
                                                )   Industrial Relations Commission
v.                                              )
                                                )
                                                )
TREASURER OF MISSOURI AS                        )
CUSTODIAN OF THE SECOND INJURY                  )
FUND,                                           )
                                                )
       Respondent.                              )   Filed: October 8, 2019

                                           OPINION

       James Wurth (“Wurth”) appeals the Labor and Industrial Commission’s (“Commission”)

award affirming and adopting the Administrative Law Judge’s (“ALJ”) award denying

permanent disability benefits from Second Injury Fund (“Fund”). In his sole point on appeal,

Wurth argues the Commission erred in finding he was permanently and totally disabled before

his work injury on November 4, 2008 because it did not base its decision on substantial

competent evidence. We affirm.

                                       BACKGROUND

       In 2002, Wurth began working for Commercial Electronics, Inc. (“Employer”), which

serviced headsets used by fast food workers at drive-thru windows. On November 4, 2008,

Wurth sustained a low back disc injury while carrying a heavy cable box. Wurth settled with
Employer for 25% disability to the body as a whole and proceeded with a claim for

compensation against the Fund. A hearing was held before the ALJ on January 2, 2018.

       Prior to his November 2008 injury, Wurth sustained previous work-related injuries in

1987, 1999, and 2001, while employed at Allied Gear and Machine Company (“Allied”). After

treatment for the 2001 injury, Allied discharged him.

       Wurth sought other employment and was retained by Employer as an hourly computer

technician and assembler. Despite ongoing treatment and symptoms from his previous injuries,

Wurth worked as an assembler, eventually becoming an assembly manager. Wurth testified that

prior to his November 2008 injury, he worked up to ten hour shifts and seldom required time off.

After treatment for his November 2008 work-related injury, Wurth was released to return to

work in March 2009. He became a salaried employee, serving as an electrical tech supervisor.

This position provided more flexible hours off the production lines, and allowed him to rest as

needed. On January 23, 2012, Employer dismissed Wurth from employment. After being

discharged, Wurth unsuccessfully sought other employment opportunities.

       Dr. David Volarich (“Dr. Volarich”) testified on behalf of Wurth and was the only

medical expert to testify in this case. Dr. Volarich conducted four independent medical

evaluations of Wurth in February 2000, December 2001, January 2008, and September 2009. Dr.

Volarich testified after every injury, Wurth’s spine worsened. As a result, he recommended

specific physical restrictions. His 2000 evaluation recommended a 20-pound lifting restriction,

avoid remaining in a fixed position for more than 30 minutes at a time, that Wurth stretch, move

about frequently, and rest when needed. The 2001 evaluation was similar, but decreased Wurth’s

lifting limit to 10-15 pounds and specified he should rest in a supine position. In his 2008 report,

Dr. Volarich further restricted handling any weight greater than 10 pounds and he should not



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remain in a fixed position for any more than 20-30 minutes at a time (including both sitting and

standing). He also recommended that he “change positions frequently to maximize comfort and

rest when needed, including resting in a recumbent fashion.” In his 2009 report, Dr. Volarich’s

restrictions were similar to those in his 2008 report, with the exception of decreasing the time

Wurth should remain in a fixed position.

       In addition to these recommended restrictions, Dr. Volarich’s January 2008 report

included a description of Wurth’s then existing job duties and physical limitations. He noted

Wurth worked 10 hours days performing light assembly duties in February 2007. During the

evaluation, when asked how his injury affected his ability to perform his work, Wurth replied

that “he has pain with climbing stairs and being on his feet for long periods of time. He takes

breaks when needed and often lies down in his office. He can’t do any heavy lifting now and has

slowed down considerably.” He also advised that Wurth could maintain his job as a

manufacturing manager, but needed to be in a sedentary to light duty capacity. He opined that if

Wurth lost his job at that time, it would be difficult for him to find employment in the open labor

market.

       Dr. Volarich testified Wurth’s job had become more administrative in nature as a

manufacturing manager since this position required him to oversee employees and “he really

wasn’t doing labor type work.” He also explained that Employer “allowed him to lie down in the

office during the day when needed to take a break . . . He could come and go as he pleased pretty

much.” He further opined Wurth’s employability in the open labor market was based on Wurth

“being accommodated and allowed to lie, down, take a nap, rest, go home early, come in late . . .

That’s not typical in the open labor market by any stretch.”




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       After Wurth’s November 2008 injury, Dr. Volarich again examined and evaluated Wurth

in September 2009. He noted Wurth’s low back complaints had become more severe and now

included right leg radiant pain. He concluded Wurth is permanently and totally disabled as a

direct result of the work-related November 4, 2008 low back injury in combination with his

preexisting medical conditions. However, Dr. Volarich reiterated on cross-examination that

without the accommodations made by Employer, Wurth would not have been employable in the

open labor market as of January 2008.

       In March 2010, approximately 14 months after the accident, James England, Jr.

(“England”), a vocational rehabilitation counselor, evaluated Wurth. He opined that Employer

provided him with “quite a bit of accommodation” prior to his injury in November 2008, and he

had been “more and more accommodated after the [2008] injury.” In January 2017, Gary

Weimholt (“Weimholt”), a vocational rehabilitation counselor, performed a vocational

assessment and testified on behalf of the Fund. He reviewed the medical records of the treating

doctors, Dr. Volarich’s reports and depositions as well as the depositions of Wurth and England.

He concluded Wurth had been unemployable in the open labor market since December 2001 or

January 2008, as either assessment would have independently taken Wurth out of the open labor

market. He explained that the restrictions in Dr. Volarich’s 2001 evaluation

       [N]ever got better, [Wurth] had this specialized situation when he returned to
       work with a great deal of accommodation. He required further evaluation and
       treatment, significant treatment. He was on narcotic medication. I think you can
       go back to there. But I also think that Dr. Volarich[‘s] [assessment] in 2008 takes
       him out as well.

       On March 29, 2018, the ALJ entered his award denying compensation for benefits

holding Wurth was ineligible because he was already permanently and totally disabled prior to

his November 2008 accident. The ALJ held “the evidence compels a conclusion that [Wurth’s]



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accommodations at work in January 2008 were sufficient to reduce his employability to

characterize his employability as not in the open labor market and conclude that he was

permanently and totally disabled at that time.”

         Wurth appealed the ALJ’s decision to the Commission. On October 12, 2018, the

majority1 of the Commission affirmed and adopted the ALJ’s attached and incorporated by

reference the ALJ’s award and decision.2

         This appeal follows.

                                                Standard of Review

         On appeal, this court reviews only questions of law and we may modify, reverse,

remand for rehearing, or set aside the Commission’s award upon a finding that: “(1) the

commission acted without or in excess of its powers; (2) the award was procured by

fraud; (3) the commission’s factual findings do not support the award; or (4) there was

not sufficient competent evidence in the record to warrant the making of the award.”

Greer v. SYSCO Food Services, 475 S.W.3d 655, 664 (Mo. banc 2015); Section

287.495.1.3 In reviewing the Commission’s decision, we determine whether the award is

supported by competent and substantial evidence upon the whole record. Miller v. Mo.

Highway & Transp. Comm’n, 287 S.W.3d 671, 672 (Mo. banc 2009); Mo. Const. art. V,

§ 18. “An award is supported by competent and substantial evidence unless it is against

the overwhelming weight of the evidence.” Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d

796, 800 (Mo. App. W.D. 2011). This Court defers to the Commission’s findings on




1
  A dissenting opinion was filed by one member of the Commission.
2
  The Commission affirmed and adopted the award of the ALJ except as corrected in its supplemental decision, in
which it corrects typographical errors and clarifies that there is no basis for an attorney lien because there was no
compensation awarded to Claimant.
3
  All further statutory references are to RSMo (2016).

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issues of fact, the credibility of the witnesses, and the weight given to conflicting

evidence; however, questions of law are reviewed de novo. Treasurer of State–Custodian

of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013). We examine the

ALJ’s findings as adopted by the Commission where, as here, the Commission affirms

and incorporates the ALJ’s decision in its award. Kolar v. First Student, Inc., 470 S.W.3d

770, 774–75 (Mo. App. E.D. 2015).

                                            ANALYSIS

       In his sole point on appeal, Wurth argues the Commission erred in finding Wurth was

permanently and totally disabled before his November 4, 2008 injury because its decision was

not supported by substantial competent evidence. Specifically, Wurth argues the evidence

presented before the ALJ supported a conclusion that prior to his 2008 work-related injury, he

was not severely limited or highly accommodated because he worked a full time job for years.

       “The purpose of the [F]und is to encourage the employment of individuals who are

already disabled from a preexisting injury, regardless of the type or cause of that injury” by

ensuring that an employer is only liable for the disability caused by the work injury.

Witte, 414 S.W.3d at 460. In order to be entitled to Fund liability, a claimant must prove that

either “the preexisting partial disability combined with a disability from a subsequent injury to

create a permanent and total disability, or the two disabilities combined result in a greater

disability than that which would have occurred from the last injury alone.” Highley v. Von Weise

Gear, 247 S.W.3d 52, 55 (Mo. App. E.D. 2008). Whether a claimant is permanently and totally

disabled is determined upon the claimant’s ability to compete in the open labor market. Lewis v.

Treasurer of State, 435 S.W.3d 144, 159 (Mo. App. E.D. 2014); Archer v. City of Cameron, 460

S.W.3d 370, 376 (Mo. App. W.D. 2015). The critical question is whether an employer



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can reasonably be expected to hire the injured employee, given his or her present physical

condition, and reasonably expect the employee to successfully perform the work; the worker is

not required to be inert or completely inactive. Lewis, 435 S.W.3d at 159; Schussler v. Treasurer

of State-Custodian of Second Injury Fund, 393 S.W.3d 90, 96 (Mo. App. W.D. 2012).

        “Whether a particular employee is permanently and totally disabled is a factual question”

within the Commission’s expertise. Archer, 460 S.W.3d at 375; Schussler, 393 S.W.3d at 96. As

a result, the Commission need not rely exclusively on the testimony of medical experts in

determining the degree of a claimant’s disability; rather, it may consider all the evidence and the

reasonable inferences drawn from that evidence. Schussler, 393 S.W.3d at 96.

       Pursuant to our limited scope of appellate review, we find the Commission’s

determination that Wurth was permanently and totally disabled prior to his employment with

Employer is supported by substantial competent evidence. The record demonstrates the

Commission considered the testimony of Wurth, Dr. Volarich, England, and Weimholt, as well

as Wurth’s medical records in determining Wurth’s ability to compete in the open labor market.

The Commission resolved the conflicting evidence and ultimately determined Dr. Volarich’s

testimony in conjunction with the vocational experts’ testimony was most credible on this issue.

This court defers to the Commission’s findings as to weight and credibility of testimony and is

bound by its factual determinations, as the Commission is free to believe or disbelieve any

evidence. See Patterson v. Cent. Freight Lines, 452 S.W.3d 759, 764 (Mo. App. E.D. 2015).

       In reaching its decision, the Commission noted Wurth was unemployable in the open

labor market prior to his injury in November 2008. Considering the restrictions Dr. Volarich had

recommended and the accommodations provided by Employer, Wurth was considered to be

unemployable in the open labor market since January 2008. Dr. Volarich testified “[y]ou know,



                                                 7
he is being accommodated. If you’re accommodated and allowed to lie down, take a nap, rest, go

home early, come in late, just about anyone can do that. That’s not typical in the open labor by

any stretch.”

          Although Wurth’s testimony disputed that he was accommodated to the extent he could

lie down, the Commission attributed more weight to the testimony of Dr. Volarich, which was

consistent with his records at the time of his evaluation. “When evidence before the Commission

would warrant either of two opposed findings, we are bound by the [Commission’s]

determination, and it is irrelevant that there is supportive evidence for the contrary finding.”

Thompson v. Treasurer of Missouri, 545 S.W.3d 890, 894 (Mo. App. E.D. 2018). Given this

deference, when presented with the entire record, we conclude the decision is supported by

substantial competent evidence.

          Moreover, Wurth’s argument centers on the fact that he was engaged in “regular, full-

time work” when determined to be “totally disabled.” However, Wurth’s maintaining

employment with Employer does not bar a finding he was permanently and totally disabled. See

Schussler, 393 S.W.3d at 97. “Missouri courts have made clear that the Commission is not

prevented from finding that a claimant is permanently and totally disabled simply because he or

she holds . . . highly accommodated employment.” Id. The record as a whole establishes Wurth

suffers from complications from his previous work-related injuries and his position with

Employer was highly accommodated. Therefore, despite the conflicting evidence presented by

Wurth that he had a full time job and the extent of the accommodations provided by Employer,

the Commission’s award is supported by competent and substantial evidence on the whole

record.




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       Therefore, on this record, we find the Commission did not err in finding Wurth was

unable to compete in the open labor market prior to his November 2008 injury.

       Point denied.
                                        CONCLUSION

       For the foregoing reasons, the Commission’s award is affirmed.



                                                    ___________________________________
                                                      Lisa P. Page, Judge



Philip M. Hess, P.J. and Kurt S. Odenwald, J., concur.




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