MARLENE STEWART,                          )
                                          )
                    Respondent,           )
                                          )
      vs.                                 )    No. SD32827
                                          )
CLINT ZWIEFEL, TREASURER OF               )    FILED: February 10, 2014
THE STATE OF MISSOURI AS                  )
CUSTODIAN OF THE                          )
SECOND INJURY FUND,                       )
                                          )
                    Appellant.            )

   APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED

      Marlene Stewart now is permanently totally disabled (“PTD”). Whether she

was so before, or only after, her last work injury is at issue. We affirm the Industrial

Commission’s finding of the latter and consequent award of PTD benefits from the

Second Injury Fund (“Fund”).

                          The Fund and Total Disability

      To encourage the hiring of disabled persons, the Fund compensates a worker

whose work injury combines with prior partial disabilities to cause enhanced overall
disability.   Schussler v. Treasurer, 393 S.W.3d 90, 95-96 (Mo.App. 2012);

§ 287.220. If Ms. Stewart was PTD before her last work injury, as Fund claims, the

Commission’s award cannot stand.

       The PTD test is whether the worker can compete in the open labor market.

Schussler, 393 S.W.3d at 96. A worker who cannot return to any normal or

reasonable employment is totally disabled; she need not be inert or completely

inactive. Id. “The key question is whether any employer in the ordinary course of

business would reasonably be expected to hire the worker in his or her current

physical condition.” Id.

                            Facts and Background1

       Ms. Stewart, a middle-age high school graduate, took a job at Subway in late

2008. She worked part-time, five hours a day, four days a week, and was being

trained to become a manager. She stood most of the time, making sandwiches and

filling food containers. She reported no trouble performing all job duties. She

thought the job was a pretty good fit and had no plans to leave, but she got hurt at

work in early 2009.

       It is undisputed that Ms. Stewart was PTD after the Subway accident. The

sole issue is whether she was PTD even before that accident, as Fund urged below

and still contends.

       Ms. Stewart’s medical history dating back to the 1990s includes arthritis,

reflex sympathetic dystrophy, degenerative joint and bone disease, carpel tunnel


1 We borrow, without further attribution, largely from the Commission’s description
of evidentiary facts which are not in dispute.


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syndrome, and a host of other maladies. She qualified for Social Security Disability

in 1997. Thereafter, she worked only sporadically – a total of 29 months over 11

years – in part-time positions to supplement her income:

            • 11 months at a hearing-aid center where she filed, cleaned, opened and
              closed the store, and checked, cleaned and shipped hearing aids;

            • One month cleaning rooms at a hotel;

            • Several months in telephone sales;

            • Three months at a fast-food restaurant where she swept, mopped,
              cleaned tables and trays, and made salads; and

            • Four months at a retail store where she worked as a cashier,
              straightened up the store, and did pricing.

Despite her medical problems, Ms. Stewart obtained all her jobs by successfully

competing in the open labor market – answering job ads, making applications, etc.

She performed each job’s regular duties without accommodation and, until Subway,

was never fired or asked to leave any job due to physical difficulty or inability to do

the work.

      In the Commission’s view, such work history belied total disability. Despite

“aches and pains performing her duties,” the Commission found that Ms. Stewart

was

            able to compete for and obtain a number of part-time positions in
            the open labor market before the primary injury. [She] did not
            obtain these positions through the help of family or friends, nor was
            she relegated to “make-work” while performing these jobs. We are
            convinced that this evidence demonstrates that [Ms. Stewart],
            although limited to part-time work, was not permanently and totally
            disabled prior to the work injury.

The Commission found it consistent with Fund purposes “to award compensation to

an employee who, at least up until her last injury, was tenacious enough to compete


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for and secure a number of part-time positions even though she was suffering from

seriously limiting chronic conditions.” The Commission thus awarded Ms. Stewart

PTD benefits, payable by Fund, which now appeals.

                               Principles of Review

       When Ms. Stewart became PTD was a fact issue within the special province of

the Commission. See Schussler, 393 S.W.3d at 96. We defer to the Commission on

fact issues. Michael v. Treasurer, 334 S.W.3d 654, 662 (Mo.App. 2011). When

the record can support either of two opposed fact findings, the Commission’s

determination binds this court. Pavia v. Smitty’s Supermarket, 118 S.W.3d

228, 234 (Mo.App. 2003)

                                      Analysis

       We quote, in part, the crux of Fund’s argument: The Commission’s decision

was contrary to “many prior cases” upholding PTD awards to claimants who were

“limited in how many hours per week they can work and what they can and cannot

do during those limited working hours.”

       There are many such cases, yet Fund’s generalization fails under scrutiny.

Since Fund urges that Schussler has “very similar facts” and is “closely on point,”

we consider it first.

                                      Schussler

       Ms. Schussler also had prior disabilities, so as here, Fund argued that she was

PTD before her last job. The ALJ concurred, finding that Ms. Schussler’s prior jobs

were “heavily accommodated” and a “multitude of physical problems” left her unable

to compete in the open labor market.          Schussler, 393 S.W.3d at 95.        The


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Commission agreed that “Ms. Schussler was unable to compete in the open labor

market prior to her work injury and affirmed that the Fund was not liable for the

payment of compensation.” Id.

      The Western District affirmed.            Employability is a matter within the

Commission’s expertise. Id. at 96. “A claimant’s ‘good fortune in obtaining work

other than through competition’ does not preclude a finding of total disability.” Id.

at 97 (quoting Cooper v. Med. Ctr. of Independence, 955 S.W.2d 570, 575

(Mo.App. 1997)). Rather, “the test is whether the claimant could compete in the

open labor market.” Id. An appellate court will not substitute its judgment on such

factual matters, even if it might find differently. Id. Given these principles and the

record, the court could not overturn the Commission’s finding that Ms. Schussler

could not compete in the open labor market prior to her last injury. Id.

      Here, in contrast, Ms. Stewart competed for and won all her jobs in the open

labor market – jobs not “heavily accommodated” or even accommodated at all.

Schussler’s cited principles, applied to these different facts, yield a different result.

      The issue per Schussler is whether Ms. Stewart could compete in the open

labor market. She did, successfully, several times. The key question per Schussler

is whether any employer in the ordinary course of business reasonably might hire

Ms. Stewart in her physical condition. Several did. Employability is a matter within

the Commission’s expertise per Schussler, which also instructs us not to substitute

our judgment for that of the Commission. Schussler supports affirmance of this

case, not reversal.




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       Next, Fund complains of and purports to cite “a line of cases wholly ignored

by the Commission….” In fact, the Commission expressly noted four of these cases

in explaining its award: Molder v. Treasurer, 342 S.W.3d 406 (Mo.App. 2011);

Rector v. Gary’s Heating and Cooling, 293 S.W.3d 143 (Mo.App. 2009);

Grgic v. P & G Construction, 904 S.W.2d 464 (Mo.App. 1995); and Pavia,

supra. We turn next to these cases.

                                     Molder and Rector

       Ms. Molder sought PTD benefits after a 2002 workplace injury, but testified at

the 2009 hearing that she still did some light, part-time work. The ALJ believed that

if Ms. Molder was “performing work on the open labor market, albeit part time, ...

she must be considered employable on the open labor market.”                  Molder, 342

S.W.3d at 408.

       The Commission reversed, finding that the ALJ misapplied the law and that

Ms. Molder was PTD. She worked only sporadically, zero to 20 hours per week on

an as-needed basis, did not have to work if she was “having a bad day,” and was

accommodated when she did come to work. “This irregular work,” the Commission

ruled, “is not employment in the open labor market.” Id. at 409.

       The Western District affirmed the Commission, noting appellate deference to

its   disability   findings.   Id.   Ms.   Molder’s   “limited,   sporadic,    and   highly

accommodated” part-time work, gained because her daughter knew the employer,

did not compel the Commission to find that she was “employable in the open job

market.” Id. at 413, 414.




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      The court also rejected Fund’s notion that part-time workers must be deemed

“employable in the open labor market, and therefore ineligible for permanent and

total disability benefits as a matter of law.” Id. Fund based this argument on

Rector v. Gary’s Heating & Cooling, 293 S.W.3d 143 (Mo.App. 2009), which

affirmed Fund’s PTD liability after Rector’s second work-related injury (he worked

part-time between the two injuries). The Commission found Fund liable because

Rector “‘was able to work subsequent to his [first] injury and it was not until the

[second injury] caused him to seek treatment and further limit his activities that

[Rector] found himself unable to work.’”       Id. at 147.   Since substantial and

competent evidence supported these findings, we affirmed the PTD award. Id. at

148-49.

      The Molder court rightly saw Rector as merely affirming the Commission’s

factual findings. Molder, 342 S.W.3d at 414. “Rector’s affirmance of a factual

determination by the Commission does not establish a hard-and-fast rule ….” Id.2

                                       Pavia

      As in Schussler, Molder, and Rector, we deferred to and affirmed the

Commission’s determination of disability in Pavia. Not surprisingly, we noted that

Mr. Pavia’s employment “performing a variety of small tasks” did not automatically



2Fund seemingly has reversed its argument from Molder, where it cited part-time
work in arguing that Ms. Molder was employable and not PTD. Now Fund cites Ms.
Stewart’s part-time work for the reverse proposition, that she was PTD and not
employable. Of course, either conclusion could be right (or wrong) depending on the
Commission’s weighing of all relevant facts and circumstances. To repeat, the
Commission’s factual determination or its affirmance on appeal “does not establish a
hard-and-fast rule.” Id.


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preclude the Commission from finding total disability. Pavia, 118 S.W.3d at 238.

Pavia announced no bright line rule, nor do Fund’s other cited cases.

      What is seen in Fund’s “line of cases” is near-total deference to Commission

disability findings. Each case upheld the Commission’s disability determination,

PTD or otherwise, with just one distinguishable exception next noted.

                                       Grgic

      In the entire “line of cases” cited by Fund, only Grgic reversed a Commission

disability determination. “No employer on the open labor market would employ a

man with the severely limited physical, mental, and communicative abilities which

the commission ascribes to Mr. Grgic,” who sometimes could work “a few hours a

day.” Grgic, 904 S.W.2d at 466-67.

         According to the commission, Mr. Grgic can only do rudimentary
         tasks with reduced coordination for limited periods, possesses only
         borderline intelligence, and has significant problems
         communicating. In short, taking the commission’s findings as true,
         claimant has lost all of his marketable skills. Consequently, the facts
         found by the commission do not support the award, and it erred in
         not granting Mr. Grgic the total disability award to which he is
         entitled by law.

Id. at 467. Grgic plainly does not govern this case.

                                    Conclusion

      It was within the Commission’s “special province” to factually determine if

Ms. Stewart was PTD before, or only after, her Subway accident. Schussler, 393

S.W.3d at 96. Competent, substantial evidence supported a finding either way, and




                                          8
reasonable minds could (and did) differ,3 so the Commission’s decision binds us.

Pavia, 118 S.W.3d at 234. Unlike Grgic, this is not the rare exception to the rule of

deference to Commission disability determinations. Fund’s proof would support a

decision in its favor, “but is not so overwhelming that it compels us to reverse.”

Payne v. Thompson Sales Co., 322 S.W.3d 590, 593 (Mo.App. 2010). We affirm

the Commission’s award.



DANIEL E. SCOTT, J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. – CONCURS

WILLIAM W. FRANCIS, JR., C. J. – CONCURS




3 The Commission affirmed the ALJ’s decision by a 2-1 vote, so three factfinders saw
it one way while a fourth disagreed.


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