Cahall v. Riddle Trucking, Inc.

• Decision Date: 16 September 1997
• Docket Number: No. 71735,71735
• Citation: 956 S.W.2d 315
• Parties: Thomas CAHALL, Employee/Respondent, v. RIDDLE TRUCKING, INC., Employer/Appellant, and Continental Casualty Company, Insurer/Appellant.
• Court: Missouri Court of Appeals

Page 315

956 S.W.2d 315

Thomas CAHALL, Employee/Respondent, v. RIDDLE TRUCKING, INC., Employer/Appellant, and Continental Casualty Company, Insurer/Appellant.

No. 71735.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 16, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 30, 1997.

Application to Transfer Denied

Dec. 23, 1997.

Betsy J. Levitt, Mary Anne Lindsey, Evans & Dixon, L.L.C., St. Louis, for E mployer/Appellant.

Rudolph L. Veit, Carson & Coil, P.C., Jefferson City, for Employee/Respondent.

SIMON, Judge.

Employer, Riddle Trucking, Inc. (Riddle), and insurer, Continental Casualty Company (Continental), appeal from an award by the Labor and Industrial Relations Commission (commission) finding the employer/insurer liable for medical bills in the amount of $43,745.25 and further finding that employer remained liable for all future medical care related to the knee injury suffered by employee, Thomas Cahall, on January 28, 1988.

On appeal, employer/insurer contend that the commission erred in holding: (1) them liable for medical expenses incurred by employee after the 1994 accidents, in that once employee prosecuted his 1994 claims to judgment, he was barred from pursuing an inconsistent remedy under the 1988 claim, and that the 1988 and 1994 awards provided the employee with duplicative recovery for his medical expenses; (2) that employee established a sufficient factual basis for an award of compensation for medical expenses, in that the commission allowed medical bills into evidence without accompanying medical records from the health care providers; and (3) that employee's current medical condition and his need for medical treatment were caused by the 1988 accident, because the overwhelming weight of the evidence indicates that employee's medical condition resulted from the 1994 accidents.

Our review is limited to a determination of whether the commission's award is supported by competent and substantial evidence when the record is viewed as a whole. Smith v. Climate Engineering, 939 S.W.2d 429, 430[1-6] (Mo.App. E.D.1996). We review all evidence and inferences in the light most favorable to the commission's award and defer to the commission on issues concerning credibility and the weight to be given to conflicting evidence and testimony in workers compensation cases. Id. The commission is free to disregard the testimony of witnesses, even if no contradictory or impeaching evidence is introduced. Id. It is in the commission's sole discretion to determine the weight to be given expert opinions, and that cannot be reviewed by this court. Id. We review independently issues involving matters of law. Id.

The record indicates that employee injured his right knee in 1988, when he was involved in a motor vehicle accident while driving a tractor-trailer truck for employer. Employee sustained an open proximal tibia fracture to his right knee, requiring hospitalization and three surgeries.

On February 6, 1990, employee filed a claim for compensation with the Division of Workers' Compensation to recover medical benefits and permanent partial disability for the 1988 injury. The claim was heard before the Administrative Law Judge (ALJ), who entered an award on September 3, 1993, finding that employee's right knee was fifty percent permanently partially disabled.

In February of 1994, employee returned to work as a self-employed truck driver and obtained workers' compensation insurance through Lumberman's Mutual Casualty Company. On July 27, 1994, employee slipped off a step while climbing down from his truck at a truck stop in Ripon, California, and scraped his right leg along the metal step. The next morning, employee noticed clear fluid seeping out of his right leg. Employee went to see Dr. VanRyn, an orthopedic surgeon, for treatment, who later performed a skin graft on employee's right leg in the same area as the 1988 injury at DePaul Hospital.

In September of 1994, employee returned to work. On October 11, 1994, while driving his truck through New Mexico, employee bruised his right leg in a traffic accident. The next day his leg began swelling. Employee went to see Dr. VanRyn who referred him to see Dr. Cabbabe, a plastic surgeon, who opined that there was a possibility that employee's body was rejecting the metal plate installed as a result of the 1988 injury, and removed it. After each of these work-related injuries, employee was hospitalized at DePaul Hospital.

On October 28, 1994, employee filed a "Motion to Reopen Case for the Purposes of Establishing Needs of Additional Medical Care as per Order and Temporary Total Disability for Rehabilitation Purposes" in the 1988 claim with the Division of Workers' Compensation. In his motion to reopen his 1988 claim, employee alleged, inter alia, that he had been rehospitalized for treatment and surgery to his right knee related to the 1988 accident and that, due to his additional surgery and hospitalization, employee has been and would be required to remain off his leg for therapeutic purposes for an indefinite period of time. Employer/insurer filed an answer to employee's motion to reopen the case and on November 15, 1994, the ALJ denied employee's motion to reopen the case. After employee's motion was denied, employee filed two separate workers' compensation claims for the 1994 accidents on May 24, 1995.

Subsequently, employee filed a motion to reopen the 1988 claim with the commission. Employer filed its response to employee's motion on October 6, 1995, and the commission found that the portion of the award in the 1988 case regarding weekly permanent partial disability benefits terminated on April 28, 1990, and that it did not have jurisdiction to reopen a compensation award after the payment period ended, but found that it did have jurisdiction to reopen the portion regarding treatment for the prior injury. It remanded the case to the Division of Workers' Compensation for an evidentiary hearing regarding the employee's need for medical care related to his 1988 right knee injury.

On July 24, 1996, the hearing took place before the ALJ. Employee's sister, Linda Hunn, testified that she had seen him on an almost daily basis since his 1993 hearing. She helped him manage his affairs and reported that, despite occasional swelling caused by work or driving, he was doing very well until the July 1994 accident. Hunn noted that employee received treatment to the same area of the leg that he had previously injured in the 1988 accident.

Employee testified that doctors performed several surgeries on his leg as a result of the 1988 injury and that from February, 1994, through July, 1994, he did attempt to return to work as a truck driver, driving a truck route to California and back as a self-employed contractor with Schnucks. The trips to California consisted of two days travel each way. Driving the truck caused employee's leg to swell, requiring him to take at least a day or two off to rest after driving half of the journey and at least that many days off after returning home from a trip. Employee testified that the swelling began at the location of the 1988 injury.

On July 27, 1994, employee slipped off of a step while attempting to step down from his truck at a truck stop in Ripon, California. As a result of this accident, employee's right leg was bruised and scraped at or near the same site of the 1988 injury. Employee later noted clear fluid seeping out of the site of the scrape and he bandaged it. By the time employee arrived in Missouri, his leg was swollen and discolored so he went to Dr. VanRyn, who had treated employee for his 1988 leg injury, and he performed a skin graft on employee's right leg in the area of the 1988 injury.

Employee testified that he returned to work in September of 1994 and on October 11, 1994, while in New Mexico, en route home from California, he was involved in a traffic accident that bruised his right leg. Employee further testified that his right leg became so swollen that he was barely able to drive back to St. Louis. When he arrived in St. Louis, he saw Dr. VanRyn who hospitalized him at DePaul Hospital. He received additional treatment from Dr. Cabbabe.

In February of 1995, employee returned to driving a truck-route to California for Schnucks. Five months later, while driving his truck in California, he noticed his right leg was bleeding extensively from the area of the 1988 injury. After having his leg bandaged, he returned home and saw Dr. VanRyn, who told him that if he did not quit driving he would lose his leg. Employee also testified that he received treatment from Dr. Reynolds, who devised a system of bandaging which increased employee's circulation in his right leg. Employee stated his condition improved with the help of the new bandaging technique, antibiotic medicine and the use of a veinous pump. Employee concluded that he believed all of his medical bills were reasonable and necessary, and that continued treatment was also necessary.

During the hearing, employee offered into evidence: receipts for medicines purchased for the treatment of employee's leg; bills from Premier Care Orthopedics for services rendered by Dr. VanRyn; bills from DePaul Hospital; bills from Surgical Arts of St. Louis for the services rendered by Dr. Reynolds; bills from Medical West Consultants for services rendered by Dr. Cabbabe; bills from Medical West Health Center for a Jobst stocking and glove; a bill from CJM for the vascular pump; an invoice from Hermann Area District Hospital for intravenous antibiotic therapy; a bill from American Home Patient Care for intravenous antibiotic therapy; and a bill from Columbia Regional Home Health Care for skilled nursing charges. Employer objected to these exhibits on the basis that there was a lack of foundation in that the employee is not a medical witness. Employer's objections were overruled.

Dr. William S. Costen, an orthopedic surgeon,...