## Facts

- Edward Dunn was employed by Astoris when he suffered a compensable right-shoulder injury at work in March 2001.
- Dunn had multiple preexisting medical problems and injuries at the time of the 2001 injury, including a prior right-shoulder injury and other health conditions.
- Dunn underwent treatment for the 2001 shoulder injury, including shoulder surgeries performed by orthopedic surgeon Dr. Herbert Haupt.
- After treatment, Dr. Haupt released Dunn at maximum medical improvement with permanent work restrictions and rated disability in a way that separated the 2001 injury from the earlier shoulder injury (assigning a portion to each).
- In May 2002, Dr. J.H. Morrow evaluated Dunn and issued a high permanent partial disability rating for the right shoulder, also attributing part of the rating to the earlier shoulder injury and part to the 2001 injury.
- In 2004 and again in 2006, Dr. Adeluola Lipede examined Dunn and issued very high disability ratings for Dunn’s conditions. Dr. Lipede did not clearly explain how much of Dunn’s shoulder disability was attributable to the preexisting shoulder injury versus the 2001 injury.
- Dr. Lipede later expressed an opinion that Dunn was not employable, but his testimony showed that this employability conclusion relied on restrictions attributed to other physicians and did not independently tie unemployability to well-supported functional limits.
- In 2005, vocational rehabilitation counselor James England evaluated Dunn and concluded Dunn would likely be unable to compete for employment in the open labor market; England’s evaluation relied substantially on Dunn’s self-reported symptoms and limitations.
- Dunn sought workers’ compensation benefits, including permanent total disability (PTD) benefits against the Second Injury Fund (SIF), based on the combined effect of the 2001 injury and preexisting disabilities.
- In February 2007, an evidentiary hearing was held on SIF liability. Dunn presented testimony and exhibits, including physician records/depositions and England’s vocational evaluation. The SIF presented no witnesses or affirmative evidence.
- The administrative law judge (ALJ) found the combination of Dunn’s preexisting disabilities and the 2001 injury created a substantially greater overall disability, supporting SIF liability for permanent partial disability (PPD), but found Dr. Lipede’s testimony unpersuasive and England’s testimony not credible on employability and denied PTD.
- The Labor and Industrial Relations Commission affirmed and adopted the ALJ’s award, and Dunn appealed.

## Issues

1. Whether the Commission erred in denying Dunn PTD benefits from the Second Injury Fund on the ground that Dunn failed to prove he was unable to compete in the open labor market.
2. Whether the Commission was permitted to discount or reject Dunn’s medical and vocational opinions supporting PTD, even though the SIF presented no opposing expert testimony.

## Decision

- The Missouri Court of Appeals, Eastern District, affirmed the Commission’s award.
- The court held there was competent and substantial evidence to support the Commission’s finding that Dunn did not meet his burden to prove PTD from the SIF.
- The court held the Commission, as factfinder, could disbelieve or assign little weight to Dr. Lipede’s and England’s opinions based on credibility and evidentiary support, even if the SIF offered no contrary expert evidence.
- The PPD award against the SIF remained; PTD benefits from the SIF were denied.

## Legal Principles

- A claimant bears the burden to prove entitlement to benefits from the Second Injury Fund to a reasonable probability.
- Under Mo. Rev. Stat. § 287.220.1 (as applied in this case), SIF liability generally requires: (1) a compensable “last injury” resulting in permanent partial disability; (2) a qualifying preexisting permanent partial disability that constituted a hindrance or obstacle to employment; and (3) proof that the combined disability is greater than the sum of the disabilities considered separately. PTD requires proof that the combination results in permanent total disability.
- Permanent total disability focuses on whether the claimant can compete in the open labor market, not merely whether the claimant can return to the prior job.
- The Commission is the ultimate factfinder in workers’ compensation cases. It determines credibility, resolves conflicts in the evidence, and may accept or reject all or part of any witness’s testimony, including medical and vocational opinions.
- Appellate review is limited. The court does not reweigh evidence and will affirm if the Commission’s award is supported by competent and substantial evidence on the record as a whole.
- The lack of opposing evidence from the SIF does not require the Commission to accept a claimant’s expert opinions; the Commission may reject even unrebutted testimony when the record provides a basis for doing so.

## Conclusion

The court affirmed the Commission’s denial of permanent total disability benefits from the Second Injury Fund because the Commission reasonably found Dunn’s medical and vocational proof unpersuasive and insufficient to establish that the combined effect of his preexisting disabilities and the 2001 shoulder injury rendered him unable to compete in the open labor market, even though the Fund offered no competing expert testimony.


Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267 (2009)