Abb Power T & D Co. v. Kempker

• Decision Date: 21 August 2007
• Docket Number: No. WD 67480.,No. WD 67465.,WD 67465.,WD 67480.
• Parties: ABB POWER T & D COMPANY, Appellant-Respondent, v. William KEMPKER, Respondent-Appellant; Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

236 S.W.3d 43

ABB POWER T & D COMPANY, Appellant-Respondent, v. William KEMPKER, Respondent-Appellant Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Respondent.

No. WD 67465.

No. WD 67480.

Missouri Court of Appeals, Western District.

August 21, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 25, 2007.

Application for Transfer Denied November 20, 2007.

Richard Lee Montgomery, Jr., Columbia, MO, for Appellant ABB Power.

Kristen Paulsmeyer, Asst. Attorney General, Columbia, MO for Respondent 2nd Injury Fund, Evan J. Beatty, Clayton, MO, for Respondent Kempker.

Before PAUL M. SPINDEN, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, Jr., JJ.

JAMES M. SMART, JR., Judge.

In this consolidated appeal, ABB Power T & D Company appeals the Labor and Industrial Relations Commission's finding of no Second Injury Fund liability in its award of permanent, total disability benefits to William Kempker. Mr. Kempker appeals the denial of his claim for future medical expenses. The judgment is affirmed in part and reversed in part.

Statement of Facts

William Kempker was employed by ABB from 1977 to May 2001. For the last fifteen to eighteen years of his employment there, he worked as a coil winder. On February 24, 2001, Mr. Kempker was running a high-voltage machine as part of his duties. As he was pulling on a copper strap, he felt a sharp pain in his back and a loss of control in his legs.

The next morning, ABB sent Mr. Kempker for medical treatment on his back. Mr. Kempker later was referred to Dr. Dennis Abernathie, an orthopedic surgeon. The doctor prescribed pain medication and ordered an epidural injection in the lower back, but these measures did not provide relief. Dr. Abernathie recommended surgery.

In October 2001, Dr. Abernathie performed a decompression laminectomy and fusion surgery on Mr. Kempker's back. Mr. Kempker initially improved after surgery, but his back pain later increased during physical therapy. Dr. Abernathie performed another surgery on Mr. Kempker six months later. Mr. Kempker's back pain got considerably worse after the second surgery. No further surgery was recommended. Following the surgery, Mr. Kempker continued to see his personal physician, Dr. Dudenhoeffer, who prescribed various medications, including medication for pain.

Unable to return to work due to the back injury, Mr. Kempker filed a workers' compensation claim for disability benefits in April 2002. He included a claim against Missouri's Second Injury Fund alleging permanent disability due to various prior injuries.

At the hearing in January 2006, the parties stipulated, inter alia, that on February 24, 2001, Mr. Kempker sustained an injury as a result of an accident while in the employment of ABB and that the accident arose out of and in the course of his employment. The parties agreed that ABB had notice of the injury and that the claim was timely filed. The parties also agreed as to the rate of compensation and the amount of temporary disability benefits and medical expenses that had been paid. The issues to be resolved were: (1) the nature and extent of the permanent disability, (2) the liability of the Second Injury Fund, and (3) ABB's liability for future medical expenses.

Mr. Kempker, who was forty-nine years old at the time of the hearing, testified about the circumstances surrounding the February 24, 2001, injury to his back. He discussed the treatments and surgeries he has undergone as a result of that injury and explained how it has rendered him unable to work or to perform his previous daily activities and hobbies. Mr. Kempker testified that he currently suffers from continuous pain in his back. He describes it as a burning, stabbing pain that radiates down into his leg and foot causing numbness and tingling. He had not experienced these symptoms prior to the February 2001 injury. He stated that the pain is unlike any previous back pain he has experienced. On a typical day, he testified, his pain level is a "six" on a scale of one-to-ten (with ten being the worst) and has been as high as a ten.

Since the February 2001 injury, Mr. Kempker cannot sit or stand for more than twenty minutes at a time and can walk only about one-eighth of a mile. The only relief he gets from his pain is from sitting in a recliner with his legs elevated, which he does about sixteen hours out of every day. He now requires the use of a power chair, a cane, or a walker. He is no longer able to hunt, cut wood, mow the grass, or perform household duties. None of these limitations existed before the February 2001 injury. Mr. Kempker testified that since the two surgeries, he has been unable to work and no doctor has released him to return to work. He stated that he is on permanent, long-term disability through ABB and is receiving Social Security disability benefits.

Mr. Kempker discussed his prior injuries and medical treatments. He suffered a right knee injury in 1978, a carpal tunnel surgery and ganglion cyst removal in February 1999, and an on-the-job injury to his pelvis and lower back in March 2000 that resulted in hernia surgery. In the mid-1990's he sought treatment for strains to his lower back. Mr. Kempker insisted, however, that after each prior injury, he was able to return to his full duties on the same job at ABB relatively quickly with no restrictions. The March 2000 back injury was resolved before his last back injury in February 2001.

The claimant presented the deposition testimony of Dr. David Volarich. Dr. Volarich opined that Mr. Kempker is permanently and totally disabled as a result of all his injuries. Dr. Volarich concluded that the February 2001 accident had resulted in a permanent disability of sixty-five percent of the body attributable to the lumbar spine. He also assigned disability ratings to Mr. Kempker's other pre-existing disabilities.¹ In his written evaluation, Dr. Volarich listed numerous work restrictions based on all of Mr. Kempker's disabilities. On cross-examination, Dr. Volarich acknowledged that Mr. Kempker had returned to working full duty with no restrictions after all of his prior injuries and that it was only after his last injury that he was unable to return to work. Mr. Kempker told Dr. Volarich that he needed to rest in a recliner fifteen minutes out of every hour in order to relieve his back pain. Dr. Volarich said he considered the claimant "unemployable."

Vocational consultant Delores Gonzalez evaluated Mr. Kempker and also reviewed his medical records. She testified that he is not employable as the result of a combination of all his injuries. She concluded that his residual functional capacity is categorized "less than sedentary," which means there is no market for his services. She said he is unable to compete in the regular job market due to "the fact that he is unable to do any prolonged sitting, standing or walking" and because "it is necessary for him to rest by sitting at least fifteen to twenty minutes every hour in a recliner with his feet up . . . to take the pressure off his low back." On cross-examination, Ms. Gonzalez testified that it is specifically the need to rest in a recliner every hour that causes him to be unemployable. When asked, considering his back problems alone, what type of work Mr. Kempker could do, Ms. Gonzalez said "he couldn't do any work."

The ALJ determined that Mr. Kempker is permanently and totally disabled solely as a result of the February 24, 2001, workplace injury to his back. The ALJ based this finding in part on Mr. Kempker's own testimony, which the ALJ found was supported by the medical records and the testimonies of Dr. Volarich and Ms. Gonzalez The ALJ stated that although Mr. Kempker had sustained prior injuries that resulted in permanent disability, "it was the sequelae of his February 24, 2001 back injury which caused him to be unemployable in the open labor market." The ALJ found that Mr. Kempker had failed to sustain his burden of proof as to Second Injury Fund liability for this reason. The ALJ denied Mr. Kempker's claim for future medical expenses.

Both ABB and Mr. Kempker appealed to the Labor and Industrial Relations Commission. The Commission unanimously affirmed and incorporated the ALJ's decision and award.

ABB and Mr. Kempker appeal that judgment.

Standard of Review

This court reviews the Commission's award to determine whether it is "supported by competent and substantial evidence upon the whole record." Mo. CONST. art. V, sec. 18. We must affirm unless the Commission acted in excess of its powers, the award was procured by fraud, the facts do not support the award, or there is insufficient evidence in the record to warrant the making of the award. Section 287.495.1.² Absent fraud, the Commission's findings of fact are conclusive and binding on appeal. Id.

When the Commission affirms and adopts the ALJ's award, we review the ALJ's findings as adopted by the Commission. Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App.2004). We review the award objectively, without viewing the evidence and its inferences in the light most favorable to the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). To determine whether there is sufficient competent and substantial evidence to support the award, we examine the evidence in the context of the whole record. Id. at 222. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. Id. at 223.

ABB's Point on Appeal

ABB appeals the Commission's finding that Mr. Kempker's February 2001 back injury alone resulted in his total and permanent disability and that, therefore, the Second Injury Fund has no liability for benefits.

Permanent, Total Disability

ABB seems to make a limited argument that the Commission erred in finding total and permanent disability. The test for permanent, total disability is the worker's ability to...