Bock v. City of Columbia

• Decision Date: 30 December 2008
• Docket Number: No. WD 69674.,WD 69674.
• Citation: 274 S.W.3d 555
• Parties: Roger BOCK, Appellant, v. CITY OF COLUMBIA, Respondent.
• Court: Missouri Court of Appeals

274 S.W.3d 555

Roger BOCK, Appellant, v. CITY OF COLUMBIA, Respondent.

No. WD 69674.

Missouri Court of Appeals, Western District.

December 30, 2008.

William P. Nacy and Samuel Edward Trapp, Jefferson City, MO, for appellant.

Richard Lee Montgomery, Jr., Columbia, MO, for respondent.

RONALD R. HOLLIGER, Presiding Judge.

Roger Bock (Bock) appeals the decision of the Labor and Industrial Relations Commission (Commission) denying him permanent partial disability benefits because he presented no expert testimony as to the percentage of his disability attributable to the compensable injury. We reverse the decision and remand the case to the Commission because it acted in excess of its powers in requiring expert testimony where Bock's injury, the effect of subsequent impact to the injured area, and the combined effect of these incidents, are all within the realm of lay understanding.

Factual and Procedural Background

Roger Bock injured his leg while working as a maintenance mechanic for the City of Columbia in July of 2005. He was holding a ladder for a coworker when a six to eight foot section of metal pipe fell to the floor, bounced, and struck him in the shin, scraping off a one and one-half to two inch area of skin and causing further abrasions.

He was seen and treated by a physician several times between August and November of 2005 and generally showed improvement at each visit. However, he reinjured the area of the wound at least twice during this time. A hospital report from September states that he bumped his right foreleg "exactly over the area of the previous wound" while getting out of the shower, causing a shallow abrasion. In addition, Bock's final hospital report from November states that he "dropped a box on his right foreleg again and sustained a small abrasion in the lateral periphery of the initial abrasion." Nevertheless, at that visit Bock "denie[d] any pain with weightbearing or any discomfort whatsoever."

Bock's doctor returned him to work in September with the restriction that he not lift more than fifty pounds. However, the restriction was removed approximately a week later, when he was "released back to regular full duties." No other restriction was placed on his work duties as a result of this injury.

At his hearing before an administrative law judge (ALJ), Bock testified that the only problems his leg cause him now are muscle aches and soreness when the weather changes. He also noted that he has "problems with re-injuring it at that location." In fact, Bock stated that since his last hospital visit he has reinjured the area between six and twelve times.

Bock filed a claim for compensation with the Department of Labor and Industrial Relations in July of 2007. After a hearing, the ALJ made a determination of 7.5 percent permanent partial disability of the right lower extremity at the 155 week level and ordered Columbia to pay him accordingly. This award was based only on the ALJ's observations of the injured leg and Bock's testimony, as no expert opinion was given as to the extent of any disability. The Commission reversed, finding that Bock failed to prove the nature and extent of his permanent partial disability. Bock appeals. Columbia has moved for sanctions against Bock for filing a frivolous appeal.

Standard and Scope of Review

Section 287.495.1¹ sets forth the standard of review on appeal of a final award of the Commission:

The court, on appeal, 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.

"Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).

"This Court reviews decisions of the Commission which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment." Meadows v. Havens Erectors, Inc., 238 S.W.3d 210, 213 (Mo. App. W.D.2007) (internal quotations omitted). "Review of legal determinations is de novo ...." Id. (internal quotation omitted). When the Commission arrives at an erroneous legal conclusion, it acts in excess of its powers. Horrell v. Chase Hotel, 174 S.W.2d 881, 886 (Mo.App.1943). However, "[a]bsent fraud, the Commission's findings of fact are conclusive and binding on appeal." ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo.App. W.D.2007).

Bock asserts that the Commission, in its findings and conclusions, adopted the findings of the ALJ, and therefore our scope of review encompasses those findings. It is true that, where "the Commission's award attaches and incorporates the ALJ's award and decision, we consider the findings and conclusions of the Commission as including the ALJ's award." Elliott v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 656 (Mo.App. W.D.2002) (overruled on other grounds by Hampton, 121 S.W.3d 220). However, cases in which the Commission incorporated the ALJ's findings are cases where the Commission agreed with the ALJ and affirmed those findings. See, e.g., id. at 655; Smith v. Richardson Bros. Roofing, 32 S.W.3d 568, 571 (Mo.App. S.D.2000) (overruled on other grounds by Hampton, 121 S.W.3d 220); Banks v. Springfield Park Care Ctr., 981 S.W.2d 161, 163 (Mo.App. S.D.1998).

Here, the Commission stated, "[t]he findings of fact and stipulations of the parties were recounted in the award of the administrative law judge; therefore, the pertinent facts will be merely summarized below." This does not constitute incorporation of the ALJ's findings and conclusions into the Commission's final award. In fact, it would be illogical for the Commission to do so in this instance because the Commission expressly reversed the ALJ's award. Because the ALJ's award was not incorporated into the final award, we review only the Commission's final award.

Discussion

Bock's sole contention on appeal is that the Commission acted without or in excess of its powers in holding that expert testimony was needed to prove the extent of Bock's disability attributable to the work related injury. The Commission based its decision on four legal determinations: (1) "It is a well established fact that medical expert testimony is required in order to establish the percentage of disability, if any, attributable to the work injury," and Bock presented no such testimony, (2) "[I]t was incumbent on [Bock] to prove the nature and extent of permanent partial disability attributable to the work-related injury" as opposed to his multiple other injuries to his shin, and he presented no such evidence, (3) "[E]xpert opinion is necessary when the injury is beyond lay understanding," and "it is apparent that [Bock's] injury is beyond lay understanding," and (4) The ALJ's own observations of Bock's leg, "some two years after the injury and without consideration of subsequent non-work-related injuries to the same area ... is purely speculative" and an insufficient basis for a finding as to the extent of the disability.

The claimant bears the burden to show that a disability resulted from an accident and the extent of that disability. Goleman v. MCI Transporters, 844 S.W.2d 463, 465 (Mo.App. W.D.1992) (overruled on other grounds by Hampton, 121 S.W.3d 220).

I. Medical Expert Testimony Is Not Always Required to Establish Percentage of Disability

"The determination of the specific amount or percentage of disability is a finding of fact within the special province of the Commission." Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo.App. E.D.1983) (overruled on other grounds by Hampton, 121 S.W.3d 220). "When the Commission makes the determination of disability it is not strictly limited to the percentages of disability testified to by the medical experts." Id. Moreover, this court has held that "[t]he Commission is authorized to base its findings and award solely on the testimony of a claimant. His testimony alone, if believed, constitutes substantial evidence ... of the nature, cause, and extent of his disability." Smith v. Terminal Transfer Co., 372 S.W.2d 659, 665 (Mo.App.1963) (citing Powers v. Universal Atlas Cement Co., 261 S.W.2d 512, 519 (Mo.App.1953); Tuller v. Ry. Express Agency, Inc., 241 Mo.App. 68, 235 S.W.2d 404, 406 (1950)).

However, a more recent case from the Eastern District, upon which Columbia relies, seemingly stands for the opposite proposition: "`Failure to offer expert testimony regarding the percentage of disability derived from the compensable injury bars the claimant from recovering permanent partial disability benefits.'" Moriarty v. Treasurer of the State of Missouri, 141 S.W.3d 69, 73 (Mo.App. E.D.2004) (quoting Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo.App. E.D.1994) (overruled on other grounds by Hampton, 121 S.W.3d 220)). But upon close inspection of Moriarty and the cases cited therein, it is apparent that expert testimony is mandatory only where the Commission is seeking to discern the percentage of disability attributable to a particular workplace injury where there has been another injury that contributed to the disability.

In Moriarty itself, the claimant failed to present medical evidence dividing the percentage of disability attributable to each of his two compensable injuries. Id. at 73. In Miller, the claimant failed to meet his burden of showing the percentage disability attributable to a pre-existing eye injury where he was seeking compensation for a subsequent injury to the same eye. 890 S.W.2d at 376. In Goleman, we found that, "[w]hen a pre-existing disability is present, the claimant is required to prove the extent of the...