Anderson v. Emerson Elec. Co., 49211

Citation698 S.W.2d 574
Decision Date20 August 1985
Docket NumberNo. 49211,49211
PartiesDonald J. ANDERSON, Employee-Appellant, v. EMERSON ELECTRIC COMPANY, Employer-Respondent. and Second Injury Fund, State of Missouri.
CourtCourt of Appeal of Missouri (US)

Robert J. Keefe, Randall, Keefe & Griffiths, St. Louis, for employee-appellant.

Robert W. Herr, Luke & Cunliff, St. Louis, for employer-respondent.

CARL R. GAERTNER, Judge.

Employee appeals the Workers' Compensation award of the Labor & Industrial Relations Commission. We affirm.

Donald J. Anderson was employed as a senior test engineer with Emerson Electric Company. On October 2, 1982 while lifting a box of books he felt something pull in his back. The next morning when he sneezed his lower back pain intensified. Three or four days later he notified his supervisor of the incident. Nine days after the accident he reported to the dispensary where he was referred to an orthopedic surgeon, Dr. Frank Petrovitch, who examined him. He received other treatment from chiropractors. He took off three, four or five days from work sporadically and left work early on occasions because of his back. In March of 1983, he left his employment with Emerson, giving as his reason a desire to join his wife, a licensed chiropractor in California.

In 1975, while in the United States Navy, Anderson underwent triple bypass surgery because of angina pain. In 1976, he retired from the Navy after twenty years of service. He testified that the Navy rated his disability because of the heart condition at 60%, and that because of this disability rating his retirement pay was not increased but was made non-taxable. He was on social security disability for approximately one year after this retirement.

The medical evidence adduced at the hearing consisted of the deposition testimony of Dr. Joseph Morrow, an osteopath, who examined Anderson on one occasion, and Dr. Petrovitch. Dr. Morrow examined Anderson on June 22, 1983. He testified that all of the tests he performed upon Anderson were negative except for some subjective complaints of pain. Based upon this and the history as related to him he concluded that Anderson's permanent partial disability by reason of the injury amounted to 35% of the body as a whole. Based upon Anderson's statement to him that his disability by reason of his heart condition was 80%, Morrow concluded that the total of the two disabilities, exceeding 100%, caused him to be permanently and totally disabled. He made no attempt to determine the extent of any disability resulting from the heart condition, but merely accepted Anderson's statement.

Dr. Petrovitch testified that when he examined Anderson a few weeks after the incident of October 2, 1982, he found mild muscle spasm in the right lumbar area and x-rays disclosed a narrowing of the disc space at L 5-S1. His opinion then was that Anderson had an irritation of the S 1 nerve root due to a bulging disc. Because Anderson specifically denied any injury, he concluded the patient's problem was obesity and that weight reduction and exercise would alleviate his symptoms. He reported that Anderson had no permanent disability whatsoever regarding his back. He reexamined Anderson on the date of the hearing, November 28, 1983, at which time a physical and neurological examination was totally negative. He concluded that Anderson had no disability at all.

Based on this evidence the administrative hearing judge found Anderson suffered from 25% disability due to his back injury, 45% disability due to his heart condition and a combined disability of 85%, thereby imposing liability for the additional disability upon the Second Injury Fund. Anderson and Emerson both applied for review to the Industrial Relations Commission.

The Commission found Anderson sustained a compensable injury on October 2, 1982 resulting in permanent partial disability of 10% of the body as a whole. Additionally, the Commission found Anderson had failed to establish by competent evidence any disability resulting from his cardiac condition. Further, the Commission held that he failed to prove that the combination of the two disabilities was greater than the sum of the two disabilities considered independently. Accordingly, it made no award to Anderson against the Second Injury Fund.

Anderson appealed to this court originally contesting both the reduction of the award for permanent partial disability against Emerson and the reversal of the award against the Second Injury Fund. He subsequently abandoned the appeal as to Emerson, conceding that the conclusion of the Commission as to permanent partial disability is supported by the evidence. Accordingly, we address only the issue regarding the liability of the Second Injury Fund.

Our review of findings by the Industrial Labor & Relations Commission is...

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    • United States State Supreme Court of Missouri
    • December 9, 2003
    ...Co., Inc., 700 S.W.2d 157 (Mo. App. 1985); Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921 (Mo. App. 1985); Anderson v. Emerson Elec. Co., 698 S.W.2d 574 (Mo. App. 1985); Katzenberger v. Gill , 690 S.W.2d 473 (Mo. App. 1985); Tibbs v. Rowe Furniture Corp., 691 S.W.2d 410 (Mo. App. 198......
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    • December 9, 2003
    ...Co., Inc., 700 S.W.2d 157 (Mo. App.1985); Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921 (Mo.App.1985); Anderson v. Emerson Elec. Co., 698 S.W.2d 574 (Mo.App.1985); Katzenberger v. Gill, 690 S.W.2d 473 (Mo.App.1985); Tibbs v. Rowe Furniture Corp., 691 S.W.2d 410 (Mo.App.1985); O'Donn......
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