Full-Time, Seasonal Work Sinks Missouri Worker’s Second Injury Fund Claim

Where a Missouri employee was able to work on a full-time, seasonable basis following a second work-related injury, the Missouri Commission did not err in finding that the employee had failed to show that he was permanently and totally disabled [Chambers v. Treasurer of State, 2021 Mo. App. LEXIS 1033 (Nov. 23, 2021)]. Accordingly, the Missouri Second Injury Fund was not liable to the employee for additional benefits. Under the facts of the case, the employee clearly was able to compete in the open labor market; he had successfully done so for years following his second work-related injury.

Background

Prior to 2008, Chambers sustained work-related injuries while working as a laborer. In January 2008, Chambers was released to work without restrictions, but with a recommendation that he pursue sedentary work rather than manual labor. He settled his workers’ compensation claim, being classified as having a permanent partial disability.

In 2009, Chambers began working part-time, seasonally, for a company that operates a campground and provides river float trips (the “campground and river outfitter”). Three years later, he began working full-time for the company as a campground manager for five and a half months of the year, working nine-hour days, seven days a week during that period of the year. During the off-season, Chambers drew unemployment benefits. Each year in the spring he was rehired and resumed full-time work.

In addition to his work for the campground and river outfitter, Chambers also worked as a school bus driver from 2012 until 2014, then as a maintenance person for the City of Galena (“City”) from 2014 until 2016. In November 2015, Chambers was working for the City when the truck he was driving lurched and rolled into a ditch, coming to rest on its top. He suffered an injury to his neck and upper back. Chambers was found to have achieved MMI and was cleared to work subject to a 40-pound lifting restriction due to his previous back surgery.

Potential Second Injury Fund Liability

Chambers sought workers’ compensation benefits with the City, ultimately entering into a stipulation for compromise settlement. He also pursued a claim against the Second Injury Fund for permanent total disability benefits. An ALJ found Chambers was not permanently and totally disabled. His work after the 2015 accident was regular and, at times, more than full-time. Although he received accommodations at his job with the campground and river outfitter, it was clear that Chambers’ employment was a job, not a favor. The ALJ found no Fund liability because Chambers was not permanently and totally disabled and there is no provision for payment of permanent partial disability under § 287.220 RSMo (2016) for cases arising after January 1, 2014. A majority of the Commission affirmed and adopted the ALJ’s award of no compensation.

Appellate Court Decision

Initially, the appellate court noted that two of Chambers’ three arguments on appeal amounted to mere challenges to the sufficiency of the evidence. While Chambers argued that he was not able to compete on the open labor market because he had to lie down periodically, the appellate court noted that:

1. Chambers exceeded the work restrictions imposed by his medical expert,
2. He exaggerated the degree of physical complaints from his last injury,
3. He had been employed full-time at times after the 2015 accident, and
4. He had represented he was ready, willing, and able to work when applying for unemployment benefits during off-season unemployment.

The court stressed that all of these factors were considered and weighed in the Commission’s ultimate conclusion that Chambers was employable. The court concluded that it was Chambers’ burden to prove he was permanently and totally disabled due to inability to compete in the open labor market. He had not satisfied that burden. There was abundant evidence Chambers was able to compete in the open labor market, e.g., the campground and river outfitter rehired Chambers to work full-time in each of the four years after the 2015 accident and Chambers expected he would be rehired to that same position again in 2020. The Commission’s decision was accordingly affirmed.