Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund

Edward Dunn (plaintiff) was employed by Astoris (defendant) when he injured his shoulder during work in March 2001. Dunn had various preexisting injuries when the 2001 injury occurred, including injuries to his shoulder. In 2004 Dunn was examined by Dr. Adeluola Lipede. Dr. Lipede did not explain how much the preexisting shoulder injury accounted for the permanent partial-disability ratings he gave Dunn because of Dunn’s shoulder. In 2005 Dunn was examined by rehabilitation counselor James England. In a vocational-rehabilitation evaluation, England concluded Dunn would likely be unable to compete for employment in the labor market. In 2006 Dr. Lipede examined Dunn again and found that Dunn had an increase in his limitations. Dunn filed for permanent total-disability benefits against Astoris and the Second Injury Fund (SIF) (defendant). In February 2007, there was a hearing to determine SIF’s liability. Dunn provided testimony and various exhibits, including multiple physician records and depositions, and England’s evaluation. Dr. Lipede’s testimony showed his decision that Dunn was not employable was based on restrictions from prior doctors who found Dunn employable. England testified regarding his evaluation, which was based on Dunn’s own statements. SIF did not present witnesses or evidence. The administrative-law judge (ALJ) found that the combination of Dunn’s preexisting conditions and the 2001 injury created a substantially greater disability. The ALJ found Dr. Lipede’s testimony unpersuasive and England’s testimony not credible, and the ALJ found that Dunn did not prove he was unable to compete in the open market. Dunn was awarded permanent partial-disability benefits from SIF, but not permanent total-disability benefits. Dunn filed for review with the Labor and Industrial Relations Commission (the commission). The commission affirmed and adopted the ALJ’s award. Dunn appealed, arguing the commission erred in denying permanent total-disability benefits.