Carron v. Ste. Genevieve School Dist.

• Decision Date: 23 October 1990
• Docket Number: No. 58084,58084
• Citation: 800 S.W.2d 64
• Parties: Janet Irene CARRON, Appellant, v. STE. GENEVIEVE SCHOOL DISTRICT, Respondent.
• Court: Missouri Court of Appeals

Page 64

800 S.W.2d 64

Janet Irene CARRON, Appellant, v. STE. GENEVIEVE SCHOOL DISTRICT, Respondent.

No. 58084.

Missouri Court of Appeals,

Eastern District,

Division Five.

Oct. 23, 1990.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Dec. 5, 1990.

Application to Transfer Denied Jan. 9, 1991.

Frank J. Niesen, Jr., St. Louis, for appellant.

John P. Lichtenegger, Chris N. Weiss, Jackson, Robert R. Schwarz, Clayton, for respondent.

CRIST, Judge.

This is a Workers' Compensation case wherein appellant, the employee, appeals the Labor and Industrial Relations Commission of Missouri's award against her employer based upon a 25 percent permanent partial disability to her back and body as a whole. The Commission found no liability on the part of the Treasurer of the State of Missouri as custodian for the Second Injury Fund. We affirm.

Employee, Janet Carron, is a forty-six-year-old woman who is married and has three children. Between the years of 1961 and 1984 she worked on the farm that she owned with her husband. This work involved picking up ten to twelve thousand eggs a day as well as taking care of hogs, maintaining a garden, cleaning and cooking.

Employee injured her back in 1972, and a Dr. Kendig performed a laminectomy at the level of L-5, S-1. She returned to farm work shortly after the operation. In 1976, she re-injured her back, and Dr. Kendig performed another laminectomy at the level of L-4, L-5. She again returned to her farm duties, although it took her slightly longer to recover. Employee did not see a doctor for any further back problems between 1976 and 1986.

In 1984, the farming operation became economically unfeasible, and employee and her husband sold the farm. They continued living there, however, performing the farm work for the new owners. The debilitating effect of these economic difficulties caused employee to visit a psychiatrist, Marcel T. Saghir, M.D. She had a number of sessions with Dr. Saghir, who aided her through depression and anxiety. She presently takes Xanax, an anti-anxiety medication, on a daily basis, and consults Dr. Saghir approximately every two months.

Also in 1984, employee obtained work with employer, Ste. Genevieve School District, because of her family's growing financial difficulties. This work consisted of sweeping, cleaning, washing tables, and emptying several thirty-nine gallon trash containers after each of five lunch periods.

On April 10, 1986, while lifting a trash barrel, employee re-injured her back. She was treated by Dr. Kendig, and underwent traction, cortisone shots and therapy. Dr. Kendig's discharge summary states: "My impression further is that the physical stress of her employment is basically too much for a back that has had a laminectomy on two separate occasions."

Employer then sent her to see Dr. John Arnot, who admitted her to St. Luke's Medical Center for evaluation and therapy. A lumbar myelogram from St. Luke's taken on June 3, 1987, showed changes due to the laminectomies. Dr. Arnot's ultimate conclusion was: "In my opinion her symptoms preclude her ability to do her manual job, although she can do light work at this time."

CT and x-ray readings from Incarnate Word Hospital on April 6, 1988, indicate the presence of spinal stenosis, degenerative changes, and the possibility of a recurrent herniated disc.

Dr. Schwent, a family doctor, has treated employee's back since September 1987. His comment regarding her back problem is "... I feel it is a chronic situation and will be ongoing probably for the remainder of her life."

Dr. Joseph Morrow testified by deposition on behalf of employee. He stated that he saw her on April 6, 1987, when she complained of pain from practically every motion. Tenderness to palpitation existed across the low back with motions out of the normal range. Attempted duck-walking was done with pain. Dr. Morrow's diagnosis was a lumbosacral sprain on two surgical lumbar discs. He rated employee as having a 35 percent permanent partial disability to the lower back prior to the accident, a 20 percent permanent partial disability to the lower back as a result of the present injury, and a 15 percent permanent partial disability due to the chronic depression. He further testified that the combination of all the disabilities resulted in a greater disability than their simple sum. Dr. Morrow stated that employee's return to work could produce a re-aggravation of her symptoms. He also testified that at the time he examined her, she was not in any need of further medical treatment for her back.

Dr. Saghir testified by deposition and described employee's mental state as improved since he began treating her in 1984. However, he stated he believed she would require treatment for many years to maintain her mental stability. Dr. Saghir testified that employee's depression increased after her injury in 1986, but that there was no change in his diagnosis of her condition.

Jeffrey F. Magrowski, a vocational rehabilitation specialist, testified by deposition that employee could only perform unskilled labor, given her educational background and experience. He further stated she could not now perform even sedentary work activities due to her injury. In response to a hypothetical question incorporating employee's education, work skills, injuries, psychiatric background, and limitations he testified that employee would not be able to compete in the open labor market. He also stated that it was the combination of all these factors that rendered employee unemployable.

Raymond A. Ritter, M.D., testified by deposition for the Second Injury Fund. He assigned employee a disability rating of 10 percent permanent partial disability as the result of the April, 1986 injury. He asserted that employee suffered no additional disability from her prior back injuries. He stated she could return to work with some restrictions on lifting and bending.

Dr. P. Kamath, a psychiatrist, was also deposed on behalf of the Second Injury Fund. He did not find employee depressed or anxious during his examination of her. He indicated that anxieties and depressions tend to be cyclical, and additional examinations might yield different findings. He stated that employee was not in need of any further psychiatric treatment, although he believed she is addicted to her anti-anxiety medication.

Employee testified she cannot return to her job as custodian, and complained of severe, constant pain in her back and legs. She stated she is unable to do any farm work, maintain her garden, or do any strenuous house cleaning. She does vacuum, dust, mop, cook and do dishes, although she must lie down after two hours of the more strenuous work. She does the general paperwork for her family, shops, and is able to drive the car for approximately one hour at a time. She also testified that she sees a doctor every week for treatment of her back. She has purchased a TENS unit for her...