Archer v. City of Cameron

• Decision Date: 10 February 2015
• Docket Number: WD 77322,WD 77320 Consolidating WD 77321
• Citation: 460 S.W.3d 370
• Parties: Rusty Archer, Appellant–Respondent, v. City of Cameron and Midwest Public Risk of Missouri, Respondent–Appellants, Treasurer of the State of Missouri–Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

460 S.W.3d 370

Rusty Archer, Appellant–Respondent

v. City of Cameron and Midwest Public Risk of Missouri, Respondent–AppellantsTreasurer of the State of Missouri–Custodian of the Second Injury Fund, Respondent.

WD 77320 Consolidating WD 77321

WD 77322

Missouri Court of Appeals, Western District, Western District .

OPINION FILED: FEBRUARY 10, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied March 31, 2015

Application for Transfer Denied May 26, 2015

Richard C. Wiles, Kansas City, MO, Counsel for Respondent.

Mary Anne Lindsey, St. Louis, MO, Counsel for Respondent–Appellants.

Steffanie Leah Stracke, Kansas City, MO, Counsel for Appellant–Respondent.

Before Division One: Thomas H. Newton, P.J., Lisa White Hardwick, Anthony Rex Gabbert, JJ.

Opinion

Anthony Rex Gabbert, Judge

City of Cameron and its insurer, Midwest Public Risk of Missouri (“Employer” collectively), appeal the final award of the Labor and Industrial Relations Commission granting Rusty Archer permanent total disability benefits, medical expenses, and future medical care for a 2008 work injury. Employer asserts three points of error. First, Employer contends that the Commission erred as a matter of law in awarding permanent total disability for a 2008 work injury suffered by Archer because the Commission failed to apply the appropriate statutory standard in determining the nature and extent of Archer's disability from that injury. Second, Employer contends that the Commission erred as a matter of law in awarding Archer medical expenses. Third, Employer contends that the Commission erred in awarding Archer future medical treatment. We affirm.

On January 16, 2008, Archer, during the course of his employment with the City of Cameron, struck a manhole while driving a skid loader. The impact caused the skid loader to stop abruptly and caused Archer to hit the windshield and lose consciousness. Immediately after regaining consciousness, Archer felt neck, thoracic, and low back pain. Archer underwent care for cervical thoracic and cervical strains

. He received a myriad of prescription medication, physical therapy and epidural injections without relief. In March of 2008, Dr. Daniel Bruning of PainCARE assessed Archer with low back pain, lumbar disk displacement, thoracic spine pain with spondylosis and trigger points at T6–T7 cervicalgia with bursitis, and rotary cuff syndrome AC joint of the left shoulder. On July 7, 2009, Dr. Terrance Pratt performed an independent medical examination and found the 2008 injury as the prevailing factor of cervicothoracic syndrome, cervical spondylolisthesis, low back pain, L5–S1 disk herniation, lumbar spondylolisthesis, chronic thoracic discomfort with radicular-type symptoms and left shoulder syndrome. Several doctors issued permanent restrictions and ratings as a result of the 2008 accident.

Archer continued to work for the employer, with accommodations, from the fall of 2008 until September 16, 2010. During that time, Archer received assistance from coworkers if he was unable to perform work tasks. He did not perform repetitive heaving lifting as he had done prior to the accident. He took frequent breaks where he sat in his truck throughout the workday in an effort to alleviate his pain. Sometimes Archer's coworkers would assist him in sitting down. Archer frequently missed work due to pain and sometimes had to leave work early. Archer's absences were deducted from his sick and vacation pay.

On September 1, 2010, Archer sustained another injury while bending over to shape a newly formed curb of concrete. Archer's foot slipped, causing a twisting and jarring sensation to his mid to low back. He was diagnosed with chronic and acute thoracic strain, myofascial syndrome, chronic lumbar strain

and muscle spasms.

Archer brought two compensation claims against Employer. The first, Injury Number 08–011470, sought benefits for the 2008 accident. The second, Injury Number 10–075527, sought benefits for the 2010 accident. The claims were consolidated and an administrative hearing was held on April 1, 2013. The administrative law judge (ALJ) found that Archer sustained 35% permanent partial disability from the 2008 injury and awarded past medical expenses and future medical care. The ALJ found that Archer sustained 7.5% permanent partial disability from the 2010 injury. The ALJ found Archer permanently and totally disabled from the combined effect of the two injuries and awarded permanent total disability against the Second Injury Fund.

The Fund appealed the ALJ's award on the 2010 claim. The Fund contended that the ALJ's award was against the great weight of the evidence because no credible evidence was produced that demonstrated permanent disability from the 2010 accident and without such disability there could be no Second Injury Fund liability. The Fund also claimed that the ALJ misinterpreted the medical records in finding disability from the 2010 accident where no doctor testified to that effect. Archer did not dispute the ALJ's awards, but because the Fund appealed the 2010 claim, Archer appealed the ALJ's award on the 2008 claim to preserve his rights pending the outcome of the Fund's appeal. The Employer appealed nothing.

On January 30, 2014, the Commission issued its Final Award on the 2008 claim and found that the overwhelming weight of the evidence favored a finding that Archer was rendered permanently and totally disabled by the effects of the 2008 injury considered in isolation. The Commission concluded that, in the ordinary course of business, any employer would not reasonably be expected to hire Archer given his physical condition as it existed at the time of his January 2008 injury and expect him to perform the duties of the job in the manner in which they are customarily performed. The Commission determined that, Archer had been able to continue work after the 2008 injury because the employer accommodated his restrictions, but he was not performing the usual duties of his employment in the manner that the duties are customarily performed by the average person engaged in such work. The Commission found that, Archer's continued work did not prove that he could compete for work in the open labor market. The Commission adopted the ALJ's awards of past medical expenses and future medical care. As to the 2010 claim, the Commission issued its Final Award Denying Compensation and reversing the ALJ's award. It concluded that Archer sustained no permanent partial disability from the 2010 injury.

In concluding that the overwhelming weight of the evidence favored a finding that Archer was rendered permanently and totally disabled by the effects of the 2008 injury considered in isolation, the Commission found credible the opinion of Dr. James Stuckmeyer who conducted a physical examination of Archer and reviewed voluminous medical records regarding his work injury. Stuckmeyer concluded that Archer's pain increased after the 2010 accident, but that by the time Stuckmeyer examined him in February of 2011, Archer had “essentially returned to baseline in regard to his spinal complaints.” Stuckmeyer believed that Archer's 2010 injury did not cause the need for any additional physical restrictions and did not result in any additional physical limitations. Stuckmeyer ultimately formed the opinion that Archer was permanently and totally disabled as a result of the 2008 accident.

The Commission also found credible the opinion of Dr. Eden Wheeler who first examined Archer approximately five months after the January 16, 2008, accident. Wheeler found that Archer reached maximum medical improvement as of September 4, 2008. Wheeler examined Archer again after the 2010 accident and reviewed Archer's medical records. Wheeler was unable to identify any additional disability caused by the 2010 injury.

The Commission found credible the opinion of Dr. Mary Middleton who examined Archer prior to the 2010 accident and until December, 2012. Middleton testified that across that period of time, Archer's physical condition stayed essentially the same. The Commission concluded that it accepted “the unanimous opinion of the medical experts that employee sustained no new disability as a result of the 2010 injury.”

The Commission compared the testimony of the two vocational experts, Michael Dreiling and James England, who both considered Archer to be permanently and totally disabled. The Commission found Dreiling's testimony that, after considering Archer's physical restrictions and limitations, as well as his education, training, vocational experience and appearance, no employer in the usual course of business would reasonably be expected to hire Archer in the physical condition in which he was left after the 2008 injury, to be “well-founded and credible.” The Commission accepted England's conclusion that Archer is permanently and totally disabled, but found England's opinion that it was a combination of the 2008 and 2010 accidents that rendered him permanently and totally disabled to be unsupported by medical evidence. The Commission made this determination based on England's reliance on Archer's lay opinion of what Archer thought rendered him permanently and totally disabled. The Commission found the vocational opinion of Dreiling more persuasive than the opinion of England regarding the issue of when Archer became permanently and totally disabled. The Commission concluded that Dreiling formed his opinion after considering Archer's perception of his condition as well as the opinions of medical experts, while England did not consider all medical opinions and, therefore, “lacked a clear understanding of employee's functional restrictions resultant from each accident.”

Employer appeals the Commission's determination that Archer was permanently and totally disabled by the 2008 injury and appeals the Commission's awards of past medical expenses and future medical treatment.

Our review of the Commission's decision is governed by article V, section 18, of the...