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Loven v. Greene County11/21/2001
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Barney, C.J., and Rahmeyer, J., concur.
The decisive issue in this workers' compensation case is whether Tommy Loven's ("Employee's") morbid obesity was a pre-existing permanent partial disability and constitutes the basis for an award against the Second Injury Fund (the "Fund"). Under the facts here, we hold that the Labor and Industrial Relations Commission (the "Commission") erred in entering an award against the Fund.
Employee sustained a back injury on July 29, 1997 (the "back injury"), when he fell while turning over a 200 pound truck tire for the purpose of repairing it for his employer, Greene County, Missouri ("County"). At that time, he was almost forty-eight years of age, 6'1" tall, and weighed between 375 to 390 pounds. Testimony indicated that Employee had been morbidly obese most of his adult life. He said that he had tried to diet for years, but that the only time he was successful at it was his early twenties when his weight went from 300 to 210 pounds. During the seven years prior to Employee's injury, he said that he weighed from 360 to 390 pounds.
Employee completed the eleventh grade and later obtained his GED. Between the time he quit school and the back injury, he worked as a welder; leased a gas station and did mechanical work; serviced cars; fixed flat tires and sold gas; was a dry grocery order filler requiring constant lifting of up to 80 pounds; fixed truck and heavy road equipment tires that required lifting tires and wheels that weighed up to 220 pounds; worked as an iron worker where he had to work up to 120 feet off the ground and either walk or crawl on structural steel; worked on a ranch where he worked seven days a week for seven months and "pull " over 400 calves weighing up to 120 pounds; leased and ran a pool hall; and was a security guard which involved going in and out a door and up and down steps 200 times per day.
Employee worked for the County from 1976 until April 1979 fixing flat tires on road graders, dump trucks and tractors. Employee was again hired by the County in 1990 and worked during the months of April through November for two years mowing right of ways. After two years he "got on full time" with the County and stayed in its employment until the injury that resulted in this workers' compensation claim. Initially, that full time work was on the "bridge crew" building and lifting, with the help of another person, concrete forms weighing 250 to 300 pounds, as well as a lot of bending, stooping, and overhead work. Later, he operated a brush cutter for the County, and eventually became its "tire man" which included fixing tires on trucks and heavy equipment as well as mechanical work. This work included crawling under vehicles, climbing up and down out of road graders and diesel trucks, continual stooping, and lifting of tires and equipment weighing from 50 to 300 pounds. He described his work as "very physical, manual labor." Once he fixed a flat on the edge of a bridge where he had to tie a "lanyard around waist and hold onto the tire until they helped bring it away from the edge of the bridge."
During his employment with the County he worked full time, almost never missed work, worked numerous ten hour days, and worked lots of overtime. In fact, during one winter, he worked a thirty-seven hour shift. He also said that there had been times when his size helped him do his job, and that one of the reasons he was hired by the County was because of his ability to lift heavy objects. He described how his size helped in his job with the County by saying, " hen you're going in a 20-foot
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