Buskuehl v. The Doe Run Co.

• Decision Date: 18 December 2001
• Docket Number: No. ED 78902.,ED 78902.
• Citation: 68 S.W.3d 535
• Parties: Frank BUSKUEHL, Employee-Respondent, v. THE DOE RUN COMPANY, Employer-Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

68 S.W.3d 535

Frank BUSKUEHL, Employee-Respondent, v. THE DOE RUN COMPANY, Employer-Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

No. ED 78902.

Missouri Court of Appeals, Eastern District, Division Four.

December 18, 2001.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 4, 2002.

Application for Transfer Denied March 19, 2002.

Robin E. Fulton, Fredericktown, MO, for appellant.

Robert J. Keefe, Barbara Toepke, St. Louis, MO, for respondents.

LAWRENCE E. MOONEY, Judge.

The employer, The Doe Run Company, appeals the Labor and Industrial Relations Commission's disability award to its employee, Frank Buskeuhl, contending that the Commission erred: (1) in increasing the Administrative Law Judge's (ALJ) award as to the employee's wrists without issuing sufficient findings of fact or conclusions of law to allow for meaningful review; (2) in failing to deduct a pre-existing wrist injury from the current award; (3) in entering an award as to the elbows unsupported by competent and substantial evidence; (4) in increasing the award as to the wrists against the overwhelming weight of the evidence and without a request by the employee; and (5) in failing to deduct the award as to the wrists from the award as to the elbows.¹ Because we find the Commission's findings of fact and conclusions of law sufficient and not in error, and that the award was supported by competent and substantial evidence and not against the overwhelming weight of the evidence, we affirm.²

Statement of Facts

In August 1995, the employee, a laborer whose duties included shoveling and jack-hammering, was diagnosed with work-related bilateral carpal tunnel syndrome. Dr. John Wagner, a board-certified orthopedic surgeon, recommended and performed a carpal tunnel release of both employee's hands. Following the surgeries, the condition of his hands and certain fingers improved somewhat, but the surgery did not relieve the symptoms running up his arms, through his elbows and towards his shoulders. In addition, the employee continued to experience pain at his elbows "all the time," which was worse when he tried to pick up or grip things, and continued to have a burning sensation at the elbows.

According to the employee's expert, Dr. David Volarich, who testified by deposition, the employee suffered a 35% permanent partial disability of both the right and left upper extremities at the wrists due to carpal tunnel syndrome, and a 20% permanent partial disability of the right and left upper extremities at the elbow due to cubital tunnel syndrome. In addition, Dr. Volarich assessed a 20% percent loading factor due to the combination of injuries to both upper extremities. However, the employer's expert, Dr. Wagner, who also testified by deposition, assessed the employee's permanent partial disability due to the carpal tunnel syndrome at 2.5% of each upper extremity at the wrists.

At the hearing, the employee and Second Injury Fund stipulated that the employee had a pre-existing injury of fifteen percent to his right wrist. The ALJ assessed a permanent partial disability of each wrist at 15%, and of each elbow at 10%. The ALJ also awarded a loading factor of 15%. Thus, the employee was awarded a total disability from employer of 108.675 weeks, or $27,960.99.

The employer appealed the ALJ's award to the Commission; the employee did not appeal. The Commission adopted the ALJ's decision, but modified its findings by concluding that the employee had a permanent partial disability of 25% of each wrist, rather than the 15% assessed by the ALJ. The Commission also applied a 25% loading factor, increased from the ALJ's 15% assessment, because the employee suffered disability to multiple body parts. The Commission further affirmed the ALJ's assessment of 10% permanent partial disability of both elbows. Thus, after modification, the employee was awarded a total disability from employer of 151.38 weeks, or $38,948.56. The employer filed this appeal.

Analysis

Appellate review of the Commission's decisions of unemployment compensation benefits is governed by section 288.210 RSMo.2000,³ which provides in pertinent part:

The findings of the commission as to facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the decision was procured by fraud;

(3) That the facts found by the commission do not support the award; or

(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Further, our review of the Commission's decision is subject to the standard of review set forth in Davis v. Research Medical Center, 903 S.W.2d 557, 565 (Mo.App.W.D.1995):

The court applies a two-step process designed to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it. In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient, competent and substantial evidence supporting the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence. In doing so, it takes into consideration the credibility determinations of the Commission and, if those determinations as to witnesses who gave live testimony before the ALJ are different than those made by the ALJ, it also considers the ALJ's credibility findings as well as the reasons, if any are given, why the Commission differed with those findings. Findings and awards of the Commission which are clearly the application of the law, as distinguished from a determination of facts, are not binding on the court and fall within the court's province of independent review and correction where erroneous.

With this standard of review in mind, we turn to the employer's allegations of error on appeal.

In the employer's first point, it claims the Commission erred by increasing the ALJ's permanent partial disability award as to the wrists because the Commission did not include findings of fact or conclusions of law in support of its modifications, precluding meaningful appellate review, in violation of section 286.090. We disagree.

Section 286.090 requires the Commission to make findings of fact and conclusions of law or to affirm or to adopt the ALJ's decision. In its final award, the Commission specifically stated that, pursuant to section 286.090, it adopted the findings, conclusions, decision, and award of the ALJ to the extent not inconsistent with its own findings, conclusions, decision and modifications. The Commission specifically noted its disagreement with ALJ's assessment of permanent partial disability of the wrists, and found that, considering the medical evidence presented before the ALJ, the permanent partial disability awarded should be increased from 15% to 25%. The medical evidence before the ALJ included Employee's continuing complaints, a nerve conduction study, Dr. Wagner's testimony, and Dr. Volarich's rating of 35% permanent partial disability of the wrists.

The percentage of disability is itself a finding of fact. Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 392 (Mo. App. S.D.1983). The Commission 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 Co., 618 S.W.2d 725, 728 (Mo.App. S.D.1981). 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 Indus., Inc., 657 S.W.2d 71, 74 (Mo.App. E.D.1983).

Although the Commission could have better elucidated its reasoning in arriving at its finding, the employer failed to ask for any clarification of its finding or any additional findings of fact. Such a request must be made if either party feels that the findings are inadequate and the request cannot be made for the first time on appeal. Ludwig v. Columbia Brewing Co., 225 S.W.2d 489, 492 (Mo.App. E.D. 1949). Moreover, our Supreme Court has stated in State ex rel. Probst v. Haid, 333 Mo. 390, 62 S.W.2d 869, 873 (1933):

Undoubtedly, if any party feels that the commission's findings of fact are not clear, leave the reason for its conclusion and award in doubt, or should be amplified for any other reason, he should ask the commission to modify them by making additional findings instead of complaining in the appellate court that findings of fact, which are not inconsistent with the result reached, do not contain a finding concerning all disputed questions of fact which must necessarily have been decided in order to make and support the award.

Therefore, the Commission did follow the mandate of section 286.090 and issued sufficient findings of fact and conclusions of law to support its...