Clark v. Fag Bearings Corp.

• Decision Date: 30 April 2004
• Docket Number: No. 25585.,25585.
• Parties: Lyndell CLARK, Claimant-Respondent, v. FAG BEARINGS CORPORATION, Employer-Appellant, Liberty Mutual Insurance Co. Insurer-Appellant, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Additional Party.
• Court: Missouri Court of Appeals

134 S.W.3d 730

Lyndell CLARK, Claimant-Respondent, v. FAG BEARINGS CORPORATION, Employer-Appellant Liberty Mutual Insurance Co. Insurer-Appellant and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Additional Party.

No. 25585.

Missouri Court of Appeals, Southern District, Division One.

April 30, 2004.

Rehearing Denied May 12, 2004.

Application for Transfer Denied June 22, 2004.

John S. Dolence, for appellant.

Robert A. Lynch and Steven A. Hays, for respondents.

PHILLIP R. GARRISON, Judge.

FAG Bearings Corporation ("Employer") appeals a temporary or partial award in favor of Lyndell Clark ("Employee"), made by the Labor and Industrial Relations Commission ("Commission") in this workers' compensation case, claiming in two points that there was insufficient evidence on the issue of causation, and that the award was against the overwhelming weight of the evidence. We affirm.

We have no appellate jurisdiction in workers' compensation cases except as expressly conferred by statute. Marston v. Juvenile Justice Ctr., 88 S.W.3d 534, 536 (Mo.App. W.D.2002); Hillenburg v. Lester E. Cox Medical Ctr., 879 S.W.2d 652, 655 (Mo.App. S.D.1994). Section 287.495¹ authorizes an appeal from the "final award of the commission"; one which disposes of the entire controversy between the parties. Ordinarily, no appeal lies from a temporary or partial award. Watkins v. Bi-State Development Agency, 924 S.W.2d 18, 20-21 (Mo.App. E.D.1996). However, appellate review of an award denominated "temporary" or "partial" is permissible where the issue is liability for any compensation. Marston at 536; Harp v. Malone Freight Lines, Inc., 16 S.W.3d 667, 670 (Mo.App. E.D.2000); Avery v. City of Columbia, 966 S.W.2d 315, 320 (Mo.App. W.D.1998); Woodburn v. May Distrib. Co., Inc., 815 S.W.2d 477, 480 (Mo.App. S.D. 1991). We have appellate jurisdiction in the instant case, therefore, because the issue was whether Employer is liable for any compensation for the injury in question.

This appeal involves a cervical spine injury, which was the second of two injuries sustained by Employee while working for Employer. The first occurred on April 15, 1999 when Employee injured his right shoulder and was diagnosed with an "AC joint separation" and "possible rotator cuff tear."² His right arm was placed in a sling and he was released to return to light-duty work the next day.

On April 21, 1999, Employee was struck on his right shoulder and side by a basket on the front of a moving forklift, while he was helping another employee move equipment parts. Employee was not knocked down by the basket, but had to take a couple of steps to regain his balance. He described the blow as a "quick stiff jolt ... kind of like if you were running and trying to stop yourself and you bounced into the wall or something." According to Employee, he felt pain in his shoulder, neck, and elbow after being struck and immediately called his shift supervisor, Walter Keener ("Keener"), telling him of the incident and requesting to be taken to the hospital. When Employee was seen at the hospital, he said that he was struck by a forklift traveling at a minimal rate of speed, "so slow that it was almost stopped per [Employee]" and that it did not knock him down. He was diagnosed with "[m]yofascial strain, cervical and thoracic spine" when x-rays of the cervical spine, thoracic spine and right shoulder were "negative."

The next day, in accordance with Employer's policies, Employee went to the Employer's doctor, Dr. Brian Murphy ("Dr.Murphy"), who diagnosed a diffuse muscle skeletal contusion with diffuse pain over the cervical neck, right shoulder, and right elbow. An MRI performed at Dr. Murphy's request demonstrated a rotator cuff tear in the right shoulder. Dr. Murphy referred Employee to Dr. Robert Lieurance ("Dr.Lieurance"), an orthopaedic surgeon who confirmed a "small right rotator cuff tear" and performed an arthroscopic repair.

On June 3, 1999, Employee reported to Dr. Lieurance that he was having numbness in his right thumb and index finger. Dr. Lieurance's examination disclosed a full range of motion of Employee's neck, and mild discomfort in the scapular region, and x-rays revealed "some degenerative disk disease and spurring at C4-5 and C5-6" with "some narrowing of the neuroforamen at C4-5 and C5-6 bilaterally." On June 24, 1999, Dr. Lieurance again noted "some subjective decreased sensation in the thumb and index finger of both hands," diagnosed "possible C6 radiculopathy" and referred Employee to Dr. Daniel Dagen ("Dr.Dagen") for a neurological evaluation.

An MRI of the cervical spine was performed on July 1, 1999 revealing a "[c]entral disk protrusion at C3-4 and C4-5 [resulting] in ventral indentation of the cervical cord and moderate canal stenosis," and a "[r]ight-sided neural foraminal stenosis at C5-6 due to facet and uncovertebral joint osteophyte formation." It was also noted that "[t]here [was] a severe mass effect in the exiting right C6 nerve root."

Employee was examined by Dr. Dagen on July 2, 1999, and was found to have bilateral carpal tunnel syndrome, "C6 radiculopathy [on the] right," "[p]robable C5-6 HNP [on the] right" and "[m]ultilevel cervical spondylosis." Dr. Dagen concluded that Employee's "right upper extremity symptoms ... are cervicogenic in etiology and traction or epidural steroid injection will be the only therapeutic maneuvers, short of operative intervention."

On August 10, 1999, Dr. Lieurance noted that Employee was "currently not approved for any further treatment for [sic] myself with regards to the neck or radiculopathy." On September 14, 1999, Dr. Lieurance reported that Employee was continuing to have "quite a bit of problems with his neck and hand pain and numbness." Finally, on October 5, 1999, Dr. Lieurance noted that Employee had reached maximum medical improvement with regard to his shoulder and released him with a fifteen percent rating of the shoulder.

Employee was also examined by Dr. Paul Toma ("Dr.Toma") on April 13, 2000. Dr. Toma diagnosed, among other things, "[c]ervical [r]adiculopathy with C6 [i]njury on the right." His report of that examination, which is discussed more fully below, contained his opinion that the forklift accident was most likely the cause of that injury.

Dr. Frank Tomecek ("Dr.Tomecek") examined Employee on May 21, 2001. In the history portion of his report, Dr. Tomecek noted that Employee had complaints of neck and right arm pain, and he had been in good health until he was hit by a forklift on April 21, 1999 and "was knocked side ways and caught himself" before falling down. He also stated that Employee was "hit very hard, however, and he suffered a severe right rotator cuff injury." Dr. Tomecek also noted that Employee was continuing to have neck pain, severe right shoulder and arm pain, and intermittent numbness in his right hand. Employee reported to him that the numbness in his right hand improved when he flexed his neck, but was worse when he extended his neck. Dr. Tomecek said that it was a "medical necessity that a cervical MRI [be] obtained."³ Employee went back to Dr. Tomecek on August 22, 2001, bringing with him a cervical MRI that demonstrated a cervical herniated disc at C4-5 and C5-6. Dr. Tomecek said in his report that "I feel within [a] reasonable degree of medical certainty that the herniated disks in [Employee's] neck were caused by work-related injury that occurred when he was hit by a forklift truck from behind and on the right side." He also recommended surgery for decompression and fusion at C4-C6. Employee claims that he has never been afforded the treatment recommended by Dr. Tomecek.

In conducting our review, we review the findings of the Commission, and not those of the ALJ. Williams v. City of Ava, 982 S.W.2d 307, 310 (Mo.App. S.D. 1998). Where, as here, the Commission's award incorporates the ALJ's award and decision, we consider the findings and conclusions of the Commission as including the ALJ's award. Id. Pursuant to Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), the standard of review in workers' compensation cases is whether, considering the whole record, there is sufficient competent and substantial evidence to support the award. Id. at 223. The Commission's interpretation and application of the law, however, are not binding on this court and fall within our realm of independent review and correction. Williams at 310.

Employer first challenges the award by alleging that there was insufficient competent and substantial evidence of causation of the cervical injury. Employer argues that the Commission incorrectly found causation on the basis of two items: (1) an opinion it inferred from a medical record that was silent on causation (Dr. Lieurance's records), and (2) an opinion, with an unknown factual basis, contained in an unauthenticated and unverified hearsay document that was not admitted into evidence (Dr. Toma's report).

A claimant in a workers' compensation case bears the burden of proving that an accident occurred and that it resulted in injury. Thorsen v. Sachs Elec. Co., 52 S.W.3d 611, 619 (Mo.App. W.D. 2001). For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. Silman v. William Montgomery & Assoc., 891 S.W.2d 173, 175 (Mo.App. E.D. 1995). Where the injury is a sophisticated one requiring surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding. Id. at 175-76. In particular, the subject of a herniated disc and its diagnosis, causation, and cure has been held to be in the realm of highly scientific techniques where expert opinion is essential. Id. at 176.

In support of this point, Employer refers to evidence relating to three of the doctors who examined...