Bradshaw v. Brown Shoe Co., 12976

• Decision Date: 13 October 1983
• Docket Number: No. 12976,12976
• Citation: 660 S.W.2d 390
• Parties: Jessie Irene BRADSHAW, Plaintiff-Respondent, v. BROWN SHOE COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 390

660 S.W.2d 390

Jessie Irene BRADSHAW, Plaintiff-Respondent, v. BROWN SHOE COMPANY, Defendant-Appellant.

No. 12976.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 13, 1983.

Motion for Rehearing Overruled and

to Transfer to Supreme Court Denied

Nov. 10, 1983.

Warren S. Stafford, Taylor, Stafford & Woody, Springfield, for plaintiff-respondent.

Raymond E. Whiteaker, John E. Price, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for defendant-appellant.

PREWITT, Judge.

Plaintiff sought benefits under the Workmen's (now Workers') Compensation Law, Chapter 287, RSMo 1978. She contended that she was injured in a fall while working for defendant. She sought benefits for permanent partial disability to her right knee and past and future medical expenses. Following a hearing an administrative law judge entered an award in favor of claimant based upon 15% permanent partial disability to her right leg at the knee. Plaintiff appealed and the Labor and Industrial Relations Commission found that the disability to her right leg at the knee was 75%; that future medical treatment would be required by her as a result of the accident; and allowed her an indefinite amount of future medical expenses. Defendant appealed to the Circuit Court of Texas County, Missouri, the county where plaintiff was injured. The circuit court affirmed the award of the Commission.

Defendant appeals, contending that the Commission's findings were not supported by competent and substantial evidence and were against the overwhelming weight of the evidence in three particulars: (1) in finding that respondent sustained permanent partial disability to her right leg at the knee of 75%; (2) in allowing an indefinite amount for future medical expenses; and (3) in finding that plaintiff's disability to her knee was caused by the accident she had at work.

The scope of our review is limited by Mo. Const. Art. V, § 18 and § 287.490, RSMo 1978 (repealed and replaced by § 287.490, RSMo Supp. 1982). Our review is of the Commission's award and only when that award is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence do we disturb it. Barr v. Vickers, Inc., 648 S.W.2d 577, 579 (Mo.App.1983). The findings of the Administrative Law Judge are not binding upon the Commission. It reaches its own conclusions independent of the judge's findings. Id. The Commission is the judge of the credibility of witnesses and we do not substitute our view of the facts for those found by the Commission if the Commission's findings are supported by sufficient competent evidence. Id. 648 S.W.2d at 580. In considering whether the Commission could reasonably have made its findings, an appellate court must view the evidence in the light most favorable to the award and the prevailing party. McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 287-288 (Mo.App.1968).

Defendant contends that the award based on 75% permanent partial disability of plaintiff's right leg at the knee was not supported by competent evidence and was against the overwhelming weight of the evidence because plaintiff's three treating physicians and defendant's examining physician stated that at most she was entitled to a disability rating of 20%; that her injury was not incapacitating; and the medical evidence showed that defendant could be employed in a sedentary occupation.

Percentage of disability is a finding of fact for the Commission, it is not bound by the percentage estimates of medical experts, and considers all the evidence in arriving at the percentage. Malcom v. La-Z-Boy Midwest Chair Company, 618 S.W.2d 725, 728 (Mo.App.1981); Blair v. Associated Wholesale Grocers, Inc., 593 S.W.2d 650, 655 (Mo.App.1980). When the Commission believes that the ratings of the physicians are too conservative it has the power to increase the rating by an appropriate amount. Wiedower v. ACF Industries, Incorporated, 657 S.W.2d 71 (Mo.App.1983).

We summarize the evidence that was favorable to plaintiff. Plaintiff was 49 years of age at the time of the hearing. She had never had any problem with her knee or leg prior to the fall. The physicians diagnosed her problem as chonodromalacia of the right kneecap. That is a "roughening or cracking of the smooth cartilage that is on the under surface of the kneecap, that part of the knee which rubs across the joint when you move your knee." Chonodromalacia manifests itself "[p]rimarily by pain and on examination by feeling a roughness of the patella when you move it around." Plaintiff had an operation "which consisted of smoothing the under surface of the kneecap down". The operation was also described as a shaving of the right patella and an alignment or realignment of the quadriceps tendon.

After surgery was performed her knee was better for awhile, but gradually became worse. She has to wear a leg brace and orthopedic shoes. She wears orthopedic shoes all the time, except when she is in her home and not going to be on her feet. She has almost constant pain from the knee. Going up or down stairs makes the pain worse. The pain is "just like a toothache hurting only it's in my knee and it runs on down into my foot and up into my hip." She cannot stand cold such as being in an air-conditioned car or in a food store where they have open freezers because it causes severe pain. She cannot sit very long at a time because her knee starts bothering her. She cannot use her right leg to raise herself up, such as out of a chair, and cannot squat down. She said that her knee "will give away on me and go out from under me if I don't have my immobilizer or my hinge brace on". Her knee swells and the pain is getting worse. She takes two Naproxin a day, one Valium at night, and 8 to 16 "arthritis aspirin" a day. Naproxin is an anti-inflammatory...