Bruflat v. Mister Guy, Inc.

• Decision Date: 13 August 1996
• Docket Number: No. WD,WD
• Parties: Mark BRUFLAT, Personal Representative for the Estate of Arthur L. Castleman, Appellant-Respondent, v. MISTER GUY, INC., Respondent-Appellant, State of Missouri, Second Injury Fund, Respondent. 51639.
• Court: Missouri Court of Appeals

Page 829

933 S.W.2d 829

Mark BRUFLAT, Personal Representative for the Estate of Arthur L. Castleman, Appellant-Respondent, v. MISTER GUY, INC., Respondent-Appellant, State of Missouri, Second Injury Fund, Respondent.

No. WD 51639.

Missouri Court of Appeals,

Western District.

Aug. 13, 1996.

George G. Allen, Jr., Kansas City, for Appellant/Respondent Employee.

Bart E. Eisfelder, Jeffrey A. Mullins, Shughart Thomson & Kilroy, P.C., Kansas City, for Respondent/Cross-Appellant, Mister Guy, Inc.

Before LAURA DENVIR STITH, P.J., and ULRICH and SMART, JJ.

ULRICH, Judge.

Arthur L. Castleman appeals the decision of the Labor and Industrial Relations Commission affirming the Administrative Law Judge's (ALJ) decision that awarded him forty percent (40%) permanent partial disability of the body as a whole, four weeks disfigurement; $1,424.10 for medical expenses; a second injury fund award of twenty-eight weeks compensation at the maximum rate of $173.85 for permanent partial disability; and denied awards for future medical aid and temporary total disability at the rate of $195.10 per week from the date the employer/insurer stopped paying temporary total disability. Mr. Castleman alleges that the Commission erred in: 1) precluding the testimony of Dr. Bernard Abrams from evidence because his opinion relied in part on a consultation report; 2) precluding from evidence the certified records of Mid-America Rehabilitation Hospital; 3) precluding the testimony of vocational rehabilitation expert Mary Titterington; 4) overruling his and the Second Injury Fund's objection to the testimonies of Dr. Stephen Reintjes and Dr. Jay Gordon Robinson; 5) finding that the employee was not temporarily totally disabled; 6) denying an award of medical expenses that the employee had incurred subsequent to the September 1992 hearing; and 7) not ordering the recusal of Judge Siedlik. Mister Guy cross-appeals claiming the Commission erred in awarding Mr. Castleman permanent partial disability and disfigurement from his April 11, 1990, accident.

The judgment is affirmed.

On Wednesday, April 11, 1990, while working for Mister Guy, Arthur Castleman's head was struck by a closing freight elevator door. Although he immediately experienced a headache and dizziness, Mr. Castleman continued to work the remainder of the day. By Saturday, April 14, Mr. Castleman could not button his shirt or lift his leg. On April 17, 1990, he could not ambulate and fell at home.

He was taken to Baptist Medical Center where he was admitted. A CAT scan disclosed that Mr. Castleman suffered from bilateral subdural hematomas. Dr. Stephen Reintjes per formed surgery on Mr. Castleman, making bilateral burr holes in his head to remove the accumulated blood from the periphery of his brain. Mr. Castleman was dismissed from the hospital on May 6, 1990, complaining of headaches, dizziness and numbness in his left leg.

Mr. Castleman experienced a seizure on May 9, 1990, causing him to fall. He was again taken to the hospital. Drs. Ronald A. Youmans and Stephen Reintjes prescribed Dilantin to control his seizures. A repeat CAT scan showed Mr. Castleman still had fluid on his brain. He was prescribed Darvocet for headaches.

Mr. Castleman returned to work for Mister Guy in June 1990 with the restriction that he not drive a motor vehicle or operate machinery. He continued working full eight hour shifts until he and other employees were discharged due to slow business.

In the two months preceding the April accident, Mr. Castleman had suffered head injuries on two other occasions. On February 3, 1990, he tripped in his kitchen and struck his chin on the edge of a table. He was taken to a hospital emergency room where he received stitches to the laceration. In March 1990, while attempting to open a heavy oak door, the door struck his forehead. He testified that he had a headache from this incident, but it went away.

At the hearing before the ALJ, Mr. Castleman offered into evidence the deposition testimony of Dr. Bernard Abrams. Mister Guy and the Second Injury Fund objected claiming that Dr. Abrams rendered no opinion regarding Mr. Castleman's disability independent of the hearsay opinion of Dr. Dennis Swiercinsky, a licensed psychologist, to whom Dr. Abrams had referred Mr. Castleman. The ALJ ruled that Dr. Swiercinsky's report and opinion could not be admitted into evidence, that Dr. Abram's opinion was based on Dr. Swiercinsky's opinion, and because it was, it lacked foundation and could not be admitted. Mr. Castleman later tried to re-open the record to offer Dr. Abrams' certified records, including the report and opinion of Dr. Swiercinsky. The ALJ sustained objections to the admission of those records.

Mr. Castleman also called Mary Titterington, a vocational rehabilitation counselor, to testify. Ms. Titterington's opinion was also based on the report and opinion of Dr. Swiercinsky. The ALJ sustained the objection to Ms. Titterington's testimony stating that her opinion was without foundation and could not be considered.

Mr. Castleman also had several friends and co-workers testify in his behalf. Their testimony primarily described observations they had made of Mr. Castleman before and after the accident.

The employer/Insurer presented the deposition testimony of Dr. Stephen Reintjes, Mr. Castleman's treating neurosurgeon. He diagnosed Mr. Castleman as having bilateral chronic subdural hematomas. He later testified on cross-examination that his operative report showed bilateral subacute subdural hematomas. Dr. Reintjes said the most common cause of this problem is trauma. Dr. Reintjes testified that any one of the accidents suffered by Mr. Castleman could have caused the subdural hematomas, and he could not say with any assuredness which one accident actually caused the injury. He also testified that the CAT scan of April 18, 1991, showed a collection of fluid on the brain and cerebral atrophy. Dr. Reintjes stated he thought the brain atrophy pre-existed the April 1990 injury. Dr. Reintjes rated Mr. Castleman's disability at 10%. Dr. Reintjes also testified that Mr. Castleman's elevated alcohol use was integral to the cerebral atrophy, seizure disorder and cognitive dysfunction.

Dr. Jay Gordon Robinson also testified. He noted the absence of neurological findings supporting Mr. Castleman's symptoms of headaches, dizziness or other complaints. He believed that these complaints could have resulted from depression and suggested that Mr. Castleman experience a psychiatric evaluation.

The ALJ found Mr. Castleman 40% permanently partially disabled. Mr. Castleman was awarded $27,816.00 from employer for

this current injury. The ALJ also found that this condition combined with a prior work related back injury synergistically to cause a greater disability than the simple sum of the disabilities experienced by Mr. Castleman. The ALJ found the Second Injury Fund liable to Mr. Castleman for $4,867.80. The ALJ awarded a sum for past medical expenses not yet paid in the amount of $1,424.10. Mr. Castleman also received an award for disfigurement that arose from the surgical procedure on his face. All three parties filed application for review with the Labor and Industrial Relations Commission. The Commission affirmed the ALJ's award. This appeal followed.

STANDARD OF REVIEW

This court applies a two-step process to determine if the Commission could have reasonably made its findings and award after considering all the evidence presented. Davis v. Research Medical Ctr., 903 S.W.2d 557, 571 (Mo.App.1995). First, the court must determine if the record contains sufficient competent and substantial evidence to support the award. Id. The first step requires examination of the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Id. If the record contains sufficient competent and substantial evidence to support the award, the reviewing court must then determine whether the award is against the overwhelming weight of the evidence. Id. To make this determination, this court, viewing the evidence in the light most favorable to the award, must consider all evidence in the record, including that which opposes or is unfavorable to the award. Id.

MR. CASTLEMAN'S APPEAL

I. Dr. Bernard Abrams and Mary Titterington's opinions

Mr. Castleman's first point on appeal claims the Commission erred in affirming the ALJ's ruling that Dr. Bernard Abrams' testimony was not admissible because the testimony relied on Dr. Swiercinsky's consultation opinion. Mr. Castleman argues that Dr. Abrams' testimony was properly admissible under section 490.065, RSMo Cum.Supp.1993, because the consultation report contains facts, data and information of the type reasonably relied upon by experts in the field and is otherwise reasonably reliable.

Section 490.065.3 provides:

The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.

While the statute allows an expert to consider facts not in evidence to form an opinion or inference, a two-step approach must be followed to determine admissibility. First, the facts must be reasonably relied upon. Second, the trial judge must then decide if the foundational facts meet a minimum standard of reliability as a condition of the admissibility of the expert's opinion. Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133, 152 (Mo.App.1992). The trial court does not usually commit reversible error by mere exclusion of expert testimony, even if the offered testimony was relevant and admissible. Inman v. Bi-State Dev. Agency, 849 S.W.2d 681, 683 (Mo.App.1993).

Dr. Abrams' opinion as to the amount of disability sustained by Mr....