Cardwell v. Treasurer of State of Missouri

• Decision Date: 15 April 2008
• Docket Number: No. ED 90226.,ED 90226.
• Citation: 249 S.W.3d 902
• Parties: Linda CARDWELL, Appellant, v. TREASURER OF the STATE OF MISSOURI, as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

249 S.W.3d 902

Linda CARDWELL, Appellant, v. TREASURER OF the STATE OF MISSOURI, as Custodian of the Second Injury Fund, Respondent.

No. ED 90226.

Missouri Court of Appeals, Eastern District, Division One.

April 15, 2008.

Ray B. Marglous, Clayton, MO, for Appellant.

Kevin Alan Nelson, Assistant Attorney General, St. Louis, MO, for Respondent.

ROBERT G. DOWD, JR., Judge.

Linda Cardwell ("Claimant") appeals the decision of the Labor and Industrial Relations Commission ("the Commission") upholding the decision of the administrative law judge ("the ALJ") awarding Claimant permanent partial disability benefits against the Second Injury Fund ("the Fund") in Injury No. 01-165842 and permanent total disability benefits against the Fund in Injury No. 02-032561. We affirm.

Claimant was an employee of Schnucks Markets, Inc. ("Employer") at the time of both her injury on May 31, 2001, Injury No. 01-165842 and her injury on April 4, 2002, Injury No. 02-032561. On both occasions, Claimant was working in the floral department, fell at work, and injured her lower back. After her first injury in 2001, Claimant was referred to Dr. Daniel Scodary ("Dr. Scodary"), a neurosurgeon. Dr. Scodary performed a hemilaminotomy and diskectomy to treat a right herniated disk. Claimant returned to work on light duty in February of 2002. Dr. Scodary eventually released Claimant to work on full duty without any medical restrictions.

Claimant re-injured her back on April 4, 2002. Claimant continued to work despite this injury up to the time of her second surgery by Dr. Scodary in July of 2003. In that surgery, Dr. Scodary performed an L4-5 and L5-S1 anterior lumbar interbody fusion with BAK cages to treat degenerative disc disease at L4-5 and L5-S1. Claimant was released from treatment by Dr. Scodary with restrictions on lifting and bending.

Claimant returned to see Dr. Scodary for evaluation and treatment. On March 21, 2005, Dr. Scodary performed a third lumbar surgery including an L4-5 and L5-S1 decompressive laminectocy, post-lateral fusion with stabilization screws and rods. This was to treat pseudoarthrosis from the fusion performed in July of 2003.

Claimant filed workers' compensation claims for each back injury. Claimant settled with Employer and then proceeded with her claims against the Fund. At the hearing, Claimant, who was fifty-five years old at the time of the hearing, stated she had graduated from high school. She testified about several preexisting medical issues with her neck, low back, right shoulder, wrists, knee, and depression. Specifically, Claimant testified she injured her neck in 1990, and Dr. Jonathan A. Gold performed a level anterior cervical fusion at C5-6. Claimant stated she continued to have neck pain after the procedure.

Claimant also testified she had a prior injury to her low back, which she treated with hot and cold packs. Claimant testified she was able to function reasonably well following this injury. Claimant testified she also injured her right shoulder. Claimant stated she never had surgery on that shoulder and stated she recovered well from that injury.

Claimant further testified she had problems with her wrists. Claimant stated she had bilateral carpal tunnel syndrome. Claimant was treated with injections prior to her carpal tunnel release surgery performed by Dr. Scodary in 2005. Claimant also testified she had a prior knee injury in 1996. Claimant had arthroscopic surgery to repair the injury. Claimant testified she began suffering from depression in 1993 after her mother died. She testified that her neck injury and her inability to do all the things she used to be able to do exacerbated her depression.

However, Claimant testified in the time leading up to her May 31, 2001 injury, she was working full duty without medical restrictions for any condition. She also testified that she attributed her difficulties with daily living activities such as driving a car, lifting, going to the grocery store, sitting and standing, and other such functions to her last injury on April 4, 2002.

Dr. Jerome F. Levy ("Dr. Levy") testified by way of deposition and provided a report for Claimant. Dr. Levy issued reports dated November 9, 2004 and October 21, 2005. Dr. Levy stated in his first report that Claimant had a 20 percent permanent partial disability to her low back due to her May 31, 2001 work injury. Dr. Levy also stated Claimant had preexisting disabilities of 32 percent of the neck, 10 percent of the right shoulder, 15 percent of each wrist due to carpal tunnel syndrome, 15 percent of the right knee, and 5 percent referable to the low back. In Dr. Levy's second report, he opined Claimant had a 55 percent disability to her low back following her third surgery, 30 percent of which was due to the last injury. Dr. Levy did not change his other ratings. Dr. Levy opined Claimant's preexisting injuries were a hindrance and obstacle to employment.

Dr. Wayne Stillings ("Dr. Stillings"), a board certified psychiatrist, also testified by way of deposition and provided a report for Claimant. Dr. Stillings issued four reports. Dr. Stillings stated Claimant had a 50 percent permanent partial disability due to psychiatric factors. Dr. Stillings stated 25 percent was due to a pain disorder, and 25 percent was due to a mood disorder. Dr. Stillings opined that of each of these, 10 percent was preexisting relative to the April 4, 2002 injury.

James England ("Mr. England"), a vocational expert, further testified by way of deposition and provided a report on Claimant's behalf. Mr. England concluded Claimant was permanently and totally disabled because she could not compete in the open labor market due to her age, education, work experience, and medical conditions.

After the hearing, the ALJ issued his award finding Claimant was entitled to 21 weeks of permanent partial disability benefits from the Fund on Injury No. 01-165842 based upon 15 percent permanent partial disability of the body as a whole referable to the low back from that injury, combined with 12.5 percent permanent partial disability of the body as a whole referable to her psychiatric condition, and 25 percent permanent partial disability of the body as a whole referable to her neck from her 1990 injury. Relative to Injury No. 02-032561, the ALJ found that she was permanently and totally disabled due to a combination of her impairments. The ALJ awarded lifetime benefits beginning August 23, 2009. The ALJ found October 21, 2005 to be the date that Claimant reached maximum medical improvement based on Dr. Levy's report. The ALJ concluded that because Employer had settled its risk, the date of maximum medical improvement was relevant only for calculation of the Fund liability. The ALJ stated that Claimant was permanently and totally disabled as of October 22, 2005, and that Employer had liability for permanent partial disability benefits for 200 weeks, or up to August 22, 2009.

Claimant appealed to the Commission as to both injuries. The Commission affirmed the decisions and awards of the ALJ. Claimant now appeals.

When a workers' compensation claim is appealed, we review only questions of law. Section 287.495, RSMo 2000.¹ We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute; that is, if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence to support the award. Id.

In reviewing a decision of the Commission, we examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, that is, whether the award is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). To determine whether the award is supported by competent and substantial evidence, we examine the evidence in the context of the whole record. Id. at 223. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. Id. The Commission is responsible for determining the credibility of witnesses and the acceptance or rejection of testimony cannot be disturbed on review unless it is against the overwhelming weight of the evidence. Townser v. First Data Corp., 215 S.W.3d 237, 242 (Mo.App. E.D.2007). In reviewing a workers' compensation award, we review the findings of the Commission and not those of the ALJ. Id. at 241. When, as here, the Commission affirms or adopts the findings of the ALJ, we review the decision and findings of the ALJ as adopted by the Commission. Id.

In her first point, Claimant contends the Commission erred with regard to Injury No. 01-165842 in finding Claimant's preexisting injuries to her right knee, bilateral carpal tunnel in her wrists, and a psychiatric condition did not meet the Fund threshold. We disagree.

Section 287.220 directs when compensation is to be paid from the Fund, as well as the amount of such compensation, in "[a]ll cases of permanent disability where there has been previous disability." The Fund is liable for permanent partial disability benefits as follows:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or...