Dubuc v. Treasurer of the State Custodian of the Second Injury Fund

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THOMAS DUBUC, Appellant, v. TREASURER OF THE STATE OF MISSOURI CUSTODIAN OF THE SECOND INJURY FUND, Respondent.

No. WD84171

Court of Appeals of Missouri, Western District

March 8, 2022

Appeal from the Labor and Industrial Relations Commission

Before Division Two: Alok Ahuja, P.J., Edward R. Ardini, Jr. and Janet Sutton, JJ.

Janet Sutton, Judge

Mr Thomas Dubuc appeals a Labor and Industrial Relations Commission (Commission) determination, on remand from this Court, that he did not prove his qualifying preexisting disabilities aggravated or accelerated a subsequent work-related injury, thus reversing a prior award of permanent total disability benefits under the Second Injury Fund. Mr. Dubuc claims that the Commission abused its discretion in denying a motion to conduct additional discovery and submit additional evidence, because our remand did not require new factual findings solely on the existing record. He also asserts Commission error in finding that Mr Dubuc did not establish a qualifying "medically documented" preexisting disability under section 287.220.3^[1] and failing to find him permanently and totally disabled (PTD) in that the Commission misinterpreted and misapplied the applicable statutory requirements. We reverse and remand.

Mr Dubuc was a fiber cable installer when he fell off a ladder in October 2015 injuring a wrist, kidneys, and low back, and was no longer able to work. An administrative law judge (ALJ) heard Mr. Dubuc's workers' compensation claim in June 2018 and, applying section 287.220.2, denied Second Injury Fund benefits after finding that he failed to sustain his burden of proving that he was PTD as the result of that work-related accident and injuries, combined with his preexisting disabilities. Rather, the ALJ found that the injuries sustained in October 2015 were alone sufficient to render him PTD. The Commission reversed in an April 2019 split decision that also applied the legal standard under section 287.220.2 and awarded Mr. Dubuc lifetime weekly PTD benefits of $879.03. The Second Injury Fund appealed the Commission award. We reversed and remanded, ruling that Mr Dubuc was required instead, under a Missouri Supreme Court ruling filed about two months after the Final Award, ^[2] to meet the standards set forth in section 287.220.3 to prove his claim. Dubuc v. Treasurer of State-Custodian of Second Injury Fund, 597 S.W.3d 372, 374 (Mo. App. W.D. 2020) (Dubuc I). We recognized that section 287.220.3 imposed a more "strident standard" on Second Injury Fund claimants. Id. at 384. The Second Injury Fund alleged that the evidence of record failed to establish the requirements of section 287.220.3 in certain respects. Id. at 383.^[3] We instructed the Commission to address the following matters:

[W]hich (if any) of [Mr.] Dubuc's preexisting disabilities were medically documented preexisting disabilities equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation.

[W]hether [Mr.] Dubuc's qualifying preexisting disabilities (if any) "directly and significantly aggravate[d] and accelerate[d] the subsequent work-related injury" [Mr.] Dubuc suffered on October 30, 2015, a more strident standard of eligibility than the standard described in section 287.220.2.

[W]hether [Mr.] Dubuc's qualifying preexisting disabilities (if any) were "unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury."

Id. at 384.

Noting that this Court cannot make factual findings in reviewing a Commission determination, we stated, "These determinations will require the Commission to consider all the evidence and to make additional factual findings before applying the correct legal standard to the facts." Id. In conclusion, we remanded the matter "to the Commission with instructions to apply the proper legal standards described in section 287.220.3 to the evidence to determine whether [Mr.] Dubuc has sustained his burden to establish the right to an award of permanent total disability benefits from the Fund." Id. We did not call for the Commission to base its findings on the existing record.

Mr. Dubuc filed a motion to conduct additional discovery, submit additional evidence, and submit supplemental briefs. Mr. Dubuc actually submitted the new expert report and a request to depose the vocational expert to identify what additional fact findings would entitle him to prevail on the Second Injury Fund claim under the requirements of section 287.220.3. The Commission cited a rule^[4] that allows the hearing of additional evidence only "upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge," and a divided Commission denied the requested additional discovery and additional evidence. The Commission expressly based the ruling, however, on its interpretation of this Court's remand order "as specifically instructing the Commission to make additional factual findings . . . based on the evidence in the record." In this regard, the Commission stated, "Because employee's request to conduct additional discovery and submit additional evidence is contrary to the court's expressed instructions and mandate, we deny this part of employee's Motion." Still, the Commission permitted the parties to file supplemental briefs.

On the merits, a divided Commission found no Second Injury Fund liability. The Commission determined that Mr. Dubuc's "only alleged preexisting disabilities that arguably reached the fifty-week minimum outlined in § 287.220.3 consisted of multiple alleged hernia repairs and Factor V Leiden mutation combined with anticoagulation."^[5] According to the Commission, record evidence about Mr. Dubuc's hernias, the last of which was repaired in the mid-1990s, consisted of medical records and experts whose inconsistencies reflected a reliance on self-reports. It stated, "The absence of any direct evidence of employee's alleged hernia repairs fails to satisfy the requirement of § 287.220.3 that an employee's preexisting disability be 'medically documented.'" Thus, the Commission excluded the hernia repairs from consideration in determining Second Injury Fund liability.

As to the Factor V Leiden mutation and chronic anticoagulation, evaluated by Mr. Dubuc's expert, Dr. Mitchell Mullins, at 25% of the body as a whole and calculated at 100 weeks, the Commission did not find sufficient evidence that this disorder aggravated and accelerated Mr. Dubuc's subsequent work injury.^[6] The Commission concluded, therefore, "as a factual matter," that Mr. Dubuc had failed to establish any medically documented disability equaling a minimum of 50 weeks "permanent partial disability according to medical standards used in determining compensation and which directly and significantly aggravated and accelerated" the October 2015 primary injury. Mr. Dubuc timely filed this appeal, which was briefly stayed in light of a similar case pending before the Missouri Supreme Court.

Legal Analysis

Commission's Interpretation of the Remand Order

In the first point, Mr. Dubuc claims that the Commission erred in not granting his motion to conduct additional discovery and submit additional evidence. He argues that our remand did not limit the Commission's factual determinations to the existing record, and it has the authority to grant additional discovery. Contending that the motion complied with regulatory requirements, Mr. Dubuc states that it should have been granted, and the Commission's failure to do so "when the burden of proof had changed constitutes a denial of due process and an abuse of the Commission's discretion."^[7]

Section 287.490.1 controls our review of the Final Award:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

While we defer to the Commission's factual findings "'we review issues of law, including the Commission's interpretation and application of the law, de novo.'" Nivens v. Interstate Brands Corp., 585 S.W.3d 825, 831 (Mo. App. W.D. 2019) (quoting Lawrence v. Treasurer of State-Custodian Second Injury Fund, 470 S.W.3d 6, 12 (Mo. App. W.D. 2015)).

Dubuc I, 597 S.W.3d at 377. "Article V, section 18 of the Missouri constitution provides for judicial review of the [C]ommission's award to determine whether the award is 'supported by competent and substantial evidence upon the whole record.'" Jackson Cnty. v. Earnest, 540 S.W.3d 464, 469 (Mo. App. W.D. 2018) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). We do not, however, "'substitute our judgment on issues of fact where the Commission was within its powers, even if we would arrive at a different initial conclusion.'" Id. (quoting Hampton, 121 S.W.3d at 223). Still, an award is not supported by competent and substantial evidence "in the rare case when [it] is contrary to the overwhelming weight of the evidence." Id. (quoting Hampton).

We did not specify when remanding the case that the new factual findings be based on the existing record. We simply ordered the Commission to consider "all of the evidence."^[8] Dubuc I, 597 S.W.3d at 384. The premise therefore of the Commission's ruling on the motion to conduct additional discovery and submit additional evidence was erroneous and...