SUPREME COURT OF MISSOURI

en banc

CHRISTOPHER KLECKA, ) 

 ) 

Appellant, ) 

 ) 

v. ) No. SC99280 

 ) 

TREASURER OF MISSOURI AS ) 

CUSTODIAN OF THE SECOND ) 

INJURY FUND, ) 

 ) 

Respondent. ) 

Opinion issued April 26, 2022

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION 

Christopher Klecka appeals the Labor and Industrial Relations Commission’s 

(“Commission”) decision reversing the administrative law judge’s (“ALJ”) award of 

permanent and total disability (“PTD”) benefits against the Second Injury Fund (“Fund”). 

Because Klecka failed to establish he was rendered permanently and totally disabled as a 

result of his primary injury and sole qualifying preexisting disability pursuant to section 

287.220.3,1

the Commission’s decision is affirmed. 

1

 All statutory references are to RSMo 2016. 
2 

Background 

In April 2014, Klecka suffered a compensable, work-related injury to his left 

shoulder, which was his primary injury giving rise to this case. He settled the primary 

claim with his employer, J & J Welding, for 35 percent, or 81.2 weeks, of permanent 

partial disability (“PPD”) of the left upper extremity and 21.5 percent, or 60 weeks, of 

PPD of the body as a whole for the resulting psychiatric injury of depression. Klecka 

then brought a claim against the Fund, alleging his primary injury, combined with the 

following prior injuries, rendered him PTD: 

a) 1981 traumatic brain injury sustained in a motor vehicle accident;

b) 1982 left knee surgery to correct frequent dislocations;

c) 2005 right thumb work-related injury that settled for 15 percent, or nine

weeks, of PPD;

d) 2006 hernia that settled for 7.5 percent, or 30 weeks, of PPD;

e) 2007 right shoulder injury that settled for 35 percent, or 81.2 weeks, of PPD.

In support of his claim, Klecka relied on expert opinions from Dr. David Volarich

and two vocational experts, Delores Gonzalez and James England. Dr. Volarich opined 

that, if a vocational expert was unable to find a suitable job for Klecka, then he was PTD 

as a “direct result of the work-related injury of [April 2014] in combination with his 

preexisting medical conditions, including his closed head injury.” Gonzalez concluded 

Klecka was PTD because of the combination of his primary injury and prior injuries, 
3

including his hernia, thumb injury, and right shoulder injury. England determined Klecka 

was PTD based on restrictions imposed by Dr. Volarich.2

In May 2019, an ALJ issued an award against the Fund for PTD benefits. The 

ALJ determined Klecka’s primary injury, combined with his previous shoulder injury and 

additional disabilities, rendered him permanently and totally disabled. The Fund 

appealed the award to the Commission, claiming the ALJ misapplied section 287.220.3 

by including all of Klecka’s previous injuries and disabilities, qualifying and nonqualifying, in her analysis. The Fund argued the ALJ instead was limited to considering 

whether Klecka’s primary injury and any qualifying preexisting disabilities of at least 50 

weeks were sufficient to render him permanently and totally disabled.

On appeal, the Commission provided the following ratings for Klecka’s prior 

injuries:

a) 1981 traumatic brain injury: no PPD;

b) 1982 left knee surgery: no PPD;

c) 2005 right thumb injury: 15 percent, or nine weeks, of PPD; 

d) 2006 hernia: 7.5 percent, or 30 weeks, of PPD; 

e) 2007 right shoulder injury: 35 percent, or 81.2 weeks, of PPD.

Notably, only one of those injuries—the 2007 right shoulder injury—equaled a minimum 

of 50 weeks of PPD and was, therefore, a qualifying preexisting disability. The

 2 Klecka also presented an expert opinion from Dr. Adam Sky, a psychiatrist, who rated the 

psychiatric disability stemming from his left shoulder injury at 40 percent PPD of the body as a 

whole. Dr. Sky further opined Klecka would have a difficult time following directions, 

checklists, and precautions, as well as working any job that requires persistence and pace.
4

Commission also rated Klecka’s primary injury at 35 percent PPD of the left shoulder 

and 15 percent PPD of the body as a whole for the resulting psychiatric injury. 

The Commission then made several factual findings regarding the opinions 

provided by Klecka’s experts. First, Dr. Volarich “made clear” his conclusion that 

Klecka was permanently and totally disabled included consideration of the effects of his

1981 head injury, 2005 thumb injury, and 2006 hernia. Similarly, Gonzalez admitted in 

her deposition that she also considered the effects of Klecka’s prior head injury, thumb 

injury, and hernia in determining he was permanently and totally disabled. Further, 

England’s opinion that Klecka was permanently and totally disabled relied on the

restrictions imposed by Dr. Volarich, which were based, in part, on the effects of 

Klecka’s prior hernia and thumb injury. The Commission concluded there was no 

evidence in the record to suggest Klecka was permanently and totally disabled as a result 

of his primary injury and his sole qualifying disability, his 2007 right shoulder injury. 

The Commission then turned its attention to section 287.220.3. Specifically, it 

considered:

whether an employee is entitled to [Fund] benefits whe[n] his claimed [PTD] 

does not result from a combination of the primary injury and preexisting 

disability that satisfies the enumerated criteria under [section 287.220.3(a)], 

but rather from the combination of his primary injury and all of his claimed 

preexisting disabling conditions, including those conditions that do not 

satisfy [section 287.220.3(a)].

The Commission ultimately concluded the language of section 287.220.3 requires 

preexisting disabilities to satisfy section 287.220.3’s requirement of equaling a minimum 

of 50 weeks of PPD to be considered in a PTD claim against the Fund. Consequently, the 
5

Commission reversed the ALJ’s award because it found Klecka failed to show he was 

rendered permanently and totally disabled as a result of his primary injury and his sole

qualifying preexisting disability—the 2007 right shoulder injury. Klecka now appeals the 

Commission’s decision.

3

Standard of Review

The Commission’s decision must be “supported by competent and substantial 

evidence upon the whole record.” Mo. Const. art. V, sec. 18. On appeal, the 

Commission’s factual findings shall be conclusive and binding in the absence of fraud, 

and no additional evidence shall be heard. Section 287.495.1. This Court also defers to 

the Commission’s determinations regarding the credibility of witnesses and the weight 

given to conflicting evidence. Annayeva v. SAB of TSD of City of St. Louis, 597 S.W.3d 

196, 198 (Mo. banc 2020). On appeal, this Court:

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.

Section 287.495.1(1)-(4).

 3 After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
6

Analysis

The issue in this case is whether the Commission erred in determining Klecka 

failed to establish he is entitled to PTD benefits from the Fund. Under section 287.220.3, 

employees must meet two conditions to make a compensable PTD claim against the 

Fund. First, the employee must have at least one qualifying preexisting disability, which 

must be medically documented, equal at least 50 weeks of PPD, and meet one of four

listed criteria in section 287.220.3(2)(a)a(i)-(iv).4

 

Second, the employee must show he “thereafter sustains a subsequent 

compensable work-related injury [often referred to as the primary injury] that, when 

combined with the preexisting disability[,] ... results in a permanent total disability as 

 4 The injury must be: 

(i) A direct result of active military duty in any branch of the United States 

Armed Forces; or 

(ii) A direct result of a compensable injury as defined in section 287.020; or 

(iii) Not a compensable injury, but such preexisting disability directly and 

significantly aggravates or accelerates the subsequent work-related injury 

and shall not include unrelated preexisting injuries or conditions that do not 

aggravate or accelerate the subsequent work-related injury; or 

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight 

in one eye, or loss of hearing in one ear, when there is a subsequent 

compensable work-related injury as set forth in subparagraph b of the 

opposite extremity, loss of eyesight in the other eye, or loss of hearing in 

the other ear[.]

Section 287.220.3(2)(a)a(i)-(iv). 
7

defined under this chapter.” Section 287.220.3(2)(a)b. As this Court recently explained

in Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021): 

[A]n employee satisfies the second condition by showing the primary injury

results in PTD when combined with all preexisting disabilities that

qualify under one of the four eligibility criteria listed in the first condition.

. . . . 

The existence of non-qualifying disabilities does not count against (or for) 

the claimant in evaluating whether he meets the second threshold condition. 

In other words, two claimants with identical qualifying preexisting 

disabilities and primary injuries should be evaluated the same way when 

determining if they meet the second condition regardless of whether one has 

additional non-qualifying disabilities.

Klecka argues the Commission erred in reversing the ALJ’s award by: 1) ignoring 

the overwhelming weight of the evidence presented and 2) failing to consider other 

non-medical factors, which hindered his employability.

5

 He asserts the restrictions

Dr. Volarich imposed for his primary and sole qualifying preexisting injury, when 

combined with his “impoverished education, complete lack of transferrable skills, and 

poor physical appearance,” render him permanently and totally disabled due to a 

combination of the primary and qualifying preexisting injury. He further notes all of the 

evidence indicated he is permanently and totally disabled, there were no medical or 

vocational opinions that indicated the contrary, and the Commission made no finding that 

any of his experts were not credible. 

 5 Klecka also contends the Commission failed to consider his depression, but this assertion is 

incorrect, as the Commission considered his depression as part of his primary injury. 
8

Regardless of whether the Commission found his experts to be credible or whether 

any contrary evidence was presented, Klecka’s arguments misconstrue the requirements 

for Fund liability under section 287.220.3 as well as the Commission’s ruling. Whether a 

claimant is permanently and totally disabled and whether that claimant is entitled to PTD 

benefits from the Fund are entirely distinct questions. PTD is defined as the inability to 

return to any employment, not merely the employment in which the employee was 

engaged at the time of the accident. Section 287.020.6. “The test for permanent total 

disability is the worker’s ability to compete in the open labor market ....” Greer v. 

SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. banc 2015). “The ability to compete in 

the open labor market hinges on whether, in the ordinary course of business, any 

employer would be reasonably expected to hire the individual given his or her present 

physical condition.” Id. at 665. Yet, even if a claimant shows he is permanently and

totally disabled under that standard, he is entitled to Fund benefits only if he shows his 

PTD is the result of his primary injury combined with any qualifying preexisting 

disability. Section 287.220.3(2)(a)b. 

Klecka’s experts’ opinions that he is permanently and totally disabled were not 

sufficient to show he was entitled to Fund benefits. Their testimony considered his nonqualifying preexisting disabilities in their PTD analysis. Dr. Volarich and Gonzalez both 

stated they factored Klecka’s non-qualifying head injury, thumb injury, and hernia into 

their conclusions, and England’s conclusion was based entirely upon Dr. Volarich’s 

report. Non-qualifying preexisting disabilities cannot be considered in determining 

whether a claimant satisfies the second condition of section 287.220.3. Parker, 622 
9

S.W.3d at 182. There was no evidence Klecka’s primary injury, combined with his 

qualifying preexisting disability, resulted in PTD because he failed to elicit testimony 

from any of his experts indicating he would still be rendered permanently and totally 

disabled, absent his non-qualifying injuries. 

Klecka, however, correctly observes section 287.220.3 does not prohibit the 

consideration of other “life factors,” including, but not limited to, those discussed by 

Klecka—age, education, transferable skills, and physical appearance. While it is not 

clear from the record whether the Commission considered such factors in its analysis, it is 

proper to do so under section 287.220.3. Regardless, Klecka’s evidence was undermined 

by his experts improperly incorporating his non-qualifying preexisting disabilities into 

their opinions. As such, the Commission did not err in determining Klecka’s evidence

failed to satisfy the standard for establishing Fund liability for PTD benefits under section 

287.220.3.
10

Conclusion

The Commission’s findings were supported by substantial and competent 

evidence. Klecka failed to establish his primary injury and sole qualifying preexisting 

disability entitled him to PTD benefits from the Fund under section 287.220.3. 

Accordingly, the Commission’s decision is affirmed. 

______________________________

Mary R. Russell, Judge

Wilson, C.J., Powell, Breckenridge, Fischer and Ransom, JJ, concur; 

Draper, J., dissents without opinion.