Bunker v. Rural Electric Cooperative

• Court: Missouri Court of Appeals
• Writing for the Court: Joseph M. Ellis
• Citation: Bunker v. Rural Electric Cooperative, 46 S.W.3d 641 (Mo. App. 2001)
• Decision Date: 05 June 2001
• Parties: (Mo.App. S.D. 2001) Terry Bunker, Respondent, v. Rural Electric Cooperative, Appellant. WD58931 0

46 S.W.3d 641 (Mo.App. S.D. 2001)

Terry Bunker, Respondent, v. Rural Electric Cooperative, Appellant.

WD58931

Missouri Court of Appeals Western District

06/05/2001

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Mark J. Hoffmeister

Counsel for Respondent: Timothy L. Brake

Opinion Summary: On March 31, 1983, Terry Bunker was injured while repairing electrical lines damaged in an ice storm. Bunker received electrical burns on his left hand, right leg, back, and buttocks, which ultimately resulted in the amputation of his left arm and right leg. Bunker filed a claim for benefits under Workers' Compensation against his employer, Rural Electric Cooperative. He was awarded $110.51 per week for life for permanent total disability. After his injury, Bunker attended college, obtained a degree in accounting, and began working. After Bunker became employed, Rural Electric suspended payment of permanent total disability payments and filed a motion with the Labor and Industrial Relations Commission (Commission) to terminate the total disability payments. The Commission ruled in Bunker's favor, reinstating the permanent total disability benefits and ordering Rural Electric to pay 88 weeks of past due payments along with Bunker's attorneys' fees and expenses. Rural Electric appeals.

AFFIRMED.

Division I holds:

(1) Section 287.470 allows the Commission to terminate or modify a previous award of workers' compensation only upon a showing of a change in physical condition of the claimant since the original award of compensation was issued.

(2) A wheelchair is not a "prosthetic appliance," nor is a wheelchair the equivalent of the use of a "prosthetic appliance" for purposes of section 287.200.2.

Lowenstein and Breckenridge, JJ., concur.

Joseph M. Ellis, Judge

Terry Bunker was employed by Rural Electric Cooperative of Nodaway-Worth County ("Rural Electric") in Maryville, Missouri. On March 31, 1983, while repairing electrical lines damaged in an ice storm the previous weekend, Bunker accidentally came in contact with an electrical current and received electrical burns on his left hand, right leg, back, and buttocks.¹ The injuries ultimately resulted in the amputation of his left arm and right leg.

On April 20, 1984, Mr. Bunker filed a claim for compensation with the Division of Workmen's Compensation (Division). Based on an agreed statement of facts submitted by the parties, Mr. Bunker was awarded $100.51 per week for life for permanent total disability.

After his accident, Mr. Bunker was fitted for an arm prosthesis that was used for cosmetic purposes only. Mr. Bunker attended physical therapy sessions in an attempt to fit him for a prosthetic leg. But due to the level of his amputation² and the discomfort from wearing the prosthetic leg, Mr. Bunker could not use the prosthesis, and his physical therapy ended before April 23, 1986. Because he could not use a prosthetic leg, Mr. Bunker has been dependent upon a wheelchair for ambulating purposes since 1983.

Mr. Bunker did not work after his accident, but volunteered his time to a nonprofit organization for burn victims and he began taking college classes. After graduating from Park College in March 1994 with a bachelor's degree in accounting, Mr. Bunker was hired to work for the City of Kansas City as a revenue agent for the Revenue Division. After working approximately two years for the Revenue Division, Mr. Bunker transferred to the Department of Parks and Recreation as an accounting clerk III. Mr. Bunker left his job with the City of Kansas City and began working for Investors Fiduciary Trust Company in January 1998, doing accounting work.

At some point after Mr. Bunker became employed, Rural Electric suspended payment of permanent total disability benefits and on December 9, 1999, Rural Electric filed a motion with the Labor and Industrial Relations Commission ("Commission") to terminate the total disability payments pursuant to section 287.470,³ arguing that Mr. Bunker was employed in the open market and was no longer permanently and totally disabled. Alternatively, Rural Electric sought a determination that suspension of benefits was proper under section 287.220.2. The Commission remanded the matter to the Division for an evidentiary hearing. In lieu of an evidentiary hearing, the parties stipulated to the submission of Mr. Bunker's videotaped and transcribed deposition. On July 18, 2000, the Commission denied Rural Electric's motion for termination of benefits and determined that suspension of permanent total disability benefits was improper. The Commission ordered Rural Electric to pay Mr. Bunker 88 weeks of past benefits in the amount of $100.51 per week plus interest, and then continue paying benefits for life as originally ordered. The Commission also granted Mr. Bunker $2,211.22 in attorneys' fees and $189.04 in expenses. Rural Electric appeals.

Because the issues in this case involve the interpretation of portions of a statute, our review of the decision of the Labor and Industrial Relations Commission is essentially de novo. "Decisions of the Labor and Industrial Relations Commission that are clearly interpretations or applications of law, rather than determinations of fact are reviewed for correctness without deference to the Commission's judgment." Files v. Wetterau, Inc., 998 S.W.2d 95, 97 (Mo. App. E.D. 1999). Because the parties agreed upon the facts, and the award was clearly based on the application of the law, we will independently review the cause and may correct the award when the application of law is erroneous. Mickey v. City Wide Maint., 996 S.W.2d 144, 147 (Mo. App. W.D. 1999).

Rural Electric brings two points on appeal. In its first point, Rural Electric contends the Commission erred in failing to terminate Mr. Bunker's permanent total disability benefits. Rural Electric argues that termination of benefits is authorized by section 287.470 because there was a "change in condition" when Mr. Bunker educated himself and obtained employment. It contends the Commission erred when it interpreted "change in condition" to mean a change in physical condition. We disagree. Initially, we note that Rural Electric failed to mention any of the cases hereinafter discussed in this section of the opinion in its principal brief. Indeed, Rural Electric did not cite a single case construing section 287.470 in its principal brief. We again remind all members of the Bar that they should be ever mindful of the requirements of Rule 84.04 when preparing briefs for filing in this Court.⁴

Section 287.470 authorizes the Commission to terminate or modify a previous award of workers' compensation upon a showing of a "change in condition."⁵ When interpreting statutes, the appellate court's primary responsibility is to ascertain the intent of the legislature from the language used in the statute and to give effect to that intent if possible. Missouri Nat. Educ. Ass'n v. Missouri State Bd. of Educ., 34 S.W.3d 266, 279 (Mo. App. W.D. 2000). The language used in the statute should be given its plain and ordinary meaning. Id. In order to understand the intent of the Legislature, it is helpful to review how the language in the statute has been interpreted in the past. When we trace the evolution of the statute and the case law interpreting the language used, we find that the Legislature first enacted section 3340, RSMo. 1929, which contained language identical to that in the present statute, section 287.470. See State ex rel. Sei v. Haid, 61 S.W.2d 950, 952 (Mo. 1933). In Sei v. A. Guthrie & Co., 50 S.W.2d 664 (Mo. App. E.D. 1932) (hereinafter "Sei I"), the appellate court determined that "a continued incapacity of the same kind and character and for the same injury for which an award has been made is not a change of condition within the meaning of [section 3340]." Id. at 666; See also Winschel v. Stix, Baer & Fuller Dry Goods Co., 77 S.W.2d 488, 491 (Mo. App. E.D. 1934). The court found that the circuit court erred in affirming the Commission's modification of a workers' compensation award under section 3340 because "there [was] no substantial evidence in [the] record authorizing the commission in finding that there was a change in the physical condition of the claimant occurring subsequent to the rendition of the final award...." Sei I, 50 S.W.2d at 666. Because Claimant's physical condition had not changed since the original compensation award, there was no basis for modifying that award.

The Supreme Court of Missouri accepted the Sei I case in a proceeding in certiorari to quash the opinion entered by the Court of Appeals. State ex rel Sei v. Haid, 61 S.W.2d 950 (Mo. 1933) (hereinafter "Sei II"). The Supreme Court affirmed the decision of the Court of Appeals and found that:

Section 3340 clearly says that the only ground for reviewing an award and making another "award ending, diminishing or increasing the compensation previously awarded" is "a change in condition."

* * *

[A]n employer [cannot] come in and get an award diminished by showing that the condition of the employee, existing at the time the original award was made, did cause a shorter period of disability than the commission found it had; nor by showing that, although the same condition still existed, it would cause a shorter period of disability than the commission found it would. An employer, to be entitled to an order diminishing an award, must show that the original condition, upon which the award was predicated, no longer existed either because of a gradual and progressive improvement which had finally resulted in a substantially improved condition or because the original condition had suddenly cleared up.

Id. at 954.

Section 3340 was reenacted as section 3730 in 1939. Section 3730 was identical to section 3340, as well as to the present section 287.470. When interpreting the "change in condition" phrase contained in section 3730, this Court adopted the...