Cole v. Alan Wire Co.

• Decision Date: 27 June 2017
• Docket Number: No. SD 34690,SD 34690
• Parties: Mark Anthony COLE, Claimant-Appellant, v. ALAN WIRE COMPANY, INC., Employer-Respondent.
• Court: Missouri Court of Appeals

521 S.W.3d 308

Mark Anthony COLE, Claimant-Appellant,

v.ALAN WIRE COMPANY, INC., Employer-Respondent.

No. SD 34690

Missouri Court of Appeals, Southern District, Division One.

Filed: June 27, 2017

MATTHEW K. LAWLER, Sikeston, MO, for Appellant.

JARED P. VESSELL, Columbia, MO, for Respondent.

DON E. BURRELL, J.

Mark Anthony Cole ("Claimant") appeals the final award of the Labor and Industrial Relations Commission ("the Commission") denying his workers' compensation claim that arose from a 2014 work accident in Sikeston at Alan Wire Company, Inc. ("Employer").¹ See section 287.495.1.² Claimant's first two points claim "[t]he Commission erred in finding that the accident was not the prevailing factor in causing the medical conditions and disability ... because the Commission": (1) "exceeded its jurisdiction" by "exercising an overly technical and parsed analysis" so as to not credit the opinion of Claimant's medical expert; and (2) disregarded the treating doctor's testimony on the ground that the doctor's "explanation lacked the language of the appropriate statutory test." Claimant's third point contends "[t]he Commission exceeded its jurisdiction by entering a final award because the issue of medical causation was not properly resolved and a temporary award should have been entered."

Because Claimant's challenges to the Commission's jurisdiction in points 1 and 3 are not specific, and the contentions are not developed in Claimant's arguments so as to identify how the Commission exceeded its statutory jurisdiction, we consider these portions of those points abandoned. See Whiteley v. City of Poplar Bluff , 350 S.W.3d 70, 77 n.4 (Mo. App. S.D. 2011).³ And despite Claimant's insistence that he is not attempting to re-litigate medical causation before this court, the remaining contentions in Claimant's points distill to an argument that the Commission erred by not adopting Claimant's view of the conflicting evidence. Our obligation to examine the whole record does not alter the deference we must afford the Commission in resolving conflicting medical testimony given by various expert witnesses. See Malam v. State, Dep't of Corr. , 492 S.W.3d 926, 928 (Mo. banc 2016). As a result, the Commission's decision to deny compensation is not contrary to the overwhelming weight of the evidence and must be affirmed.

Applicable Principles of Review and Governing Law

A reviewing court may modify, reverse, remand for rehearing, or set aside a workers' compensation award upon a finding that: (1) the commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the commission's factual findings do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Section 287.495.1[.] "Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record." Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 223 (Mo. banc 2003).

Questions of law are reviewed de novo.Pierce v. BSC, Inc. , 207 S.W.3d 619, 621 (Mo. banc 2006). This Court must defer to the commission's findings on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence. Treasurer of State–Custodian of Second Injury Fund v. Witte , 414 S.W.3d 455, 460 (Mo. banc 2013). The determination of whether an accident is the "prevailing factor" causing a claimant's condition is an inherently factual one. Maness v. City of De Soto , 421 S.W.3d 532, 539 (Mo. App. 2014). Although the commission's decision is afforded substantial deference, this Court must still "examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence." Hampton , 121 S.W.3d at 222–23.

Malam, 492 S.W.3d at 928 (footnote omitted).⁴

Evidentiary Summary and Procedural History

Claimant and counsel for the parties appeared before an administrative law judge ("the ALJ") in September 2015 for the presentation of evidence on "a request for a temporary award." The issues for determination were whether a work accident occurred, and if so, whether it was the medical cause of Claimant's injuries. Claimant presented claims dependent upon a favorable determination of these issues for "previously incurred medical aid[,]" "future medical aid[,]" and 15 weeks of temporary total disability payments. Employer "request[ed] that if all issues are found against [Claimant], then a temporary award shall be converted into a final award."

Claimant testified that he was 47 years old at the time of the hearing, and he had worked in various occupations after being honorably discharged from the military in 1990. He became disabled for about five years as the result of Graves' disease

, but he "ma[d]e a recovery" and went "back to work[.]" He eventually began working in a job where he operated a forklift, and during that period he suffered a back injury that caused him to experience pain going down into both legs that felt "like a tingling problem, like a burning almost." He did not file a workers' compensation claim or receive a work-related settlement for that injury.

Thereafter, Claimant worked at other jobs without experiencing pain or swelling in his right knee. He had previously broken his right ankle and hurt his left knee on different occasions playing basketball. Claimant began working for Employer in May 2014. At that time, he denied any pain in his knees, but he explained that he had been experiencing "buckling" of his knees. Claimant also acknowledged that he had fallen "a couple of times" while working for Employer.

On September 15, 2014, Claimant was operating a forklift to load and unload trucks. He was not having any pain or swelling in his right knee. He was wearing steel-toed boots as required by Employer, and he described them as "pretty heavy." Claimant parked his forklift, and he stepped down from it onto his left foot. He estimated the height of the exit from the forklift as being "[n]ineteen, twenty inches" off of the ground and higher than an "ordinary stair" for something like a house. "As soon as [he] stepped [with his right foot], there was a pop and [he immediately] felt pain[.]"

On cross-examination, Claimant clarified that he had already reached "the ground before [his] knee popped

[.]" Claimant pulled up his "pants leg and there was a knot just getting bigger and bigger and bigger[,]" and he put ice on his knee.⁵

The next day, a manager for Employer told Claimant that he was being sent to be examined by Dr. Thomas Marsh. After seeing Dr. Marsh, Claimant understood that Dr. Marsh did not think that Claimant had "a work-related injury [.]" Dr. Marsh's report was admitted into evidence, and it indicated that the doctor saw Claimant on September 17, 2014. Dr. Marsh observed "little swelling [of the knee] other than an area of a fullness or hardened region in the anterior aspect of the medial joint line." The doctor noted that Claimant said "he has had 'noisy knees' or popping sensations in his knees" and this "has been going on for quite some time ... at least for the past several years [.]" Dr. Marsh also reported that "it is specifically the buckling of the knees that has caused [Claimant] to fall on a recurring basis out of the blue[.]"

In late September 2014, a set of magnetic resonance images ("MRI") was made of Claimant's knee, and a report of the MRI by Dr. Kimberly Foust was admitted into evidence. Dr. Foust reported that Claimant's right knee showed "[m]ild" patellofemoral compartment chondrosis, an area of "multiloculated fluid" that "may represent a ganglion cyst

[,]" and an area in the "soft tissues of the right knee" that was "likely a contusion."

After the MRI, Dr. Marsh supplemented his report to note that the MRI revealed "a suspected ganglion cyst

" and the "suggestion of a contusion [.]" Given that Claimant had not reported hitting his knee during the work accident, Dr. Marsh noted that "a likely source for any contusion" may be Claimant's reported history of falls and buckling knees. Dr. Marsh stated that "[t]here is nothing to suggest an internal derangement" in the knee and opined, "there appears little to suggest that something new has occurred to his right knee which was symptomatic before the 'pop' ... [and] was symptomatic on a chronic basis before the" work accident.

Claimant said that his right knee did not improve, and he saw Dr. Cary Sanders in October 2014. Records from Claimant's treatment by Dr. Sanders and his February 2015 letter to Claimant's counsel were admitted into evidence. Dr. Sanders's records noted that the MRI showed "multiple par[a]meniscal cysts" and that Claimant consented to surgery to improve the "mechanical symptoms and pain" in his right knee. Dr. Sanders performed surgery on Claimant's knee on October 27, 2014. In addition to removing a "small cyst" during the surgery, Dr. Sanders observed that "[t]he ACL appeared to be intact, although there was some stranding and thinning of the ACL."⁶ Dr. Sanders advised that Claimant should remain off work following the surgery until February 9, 2015.

Dr. Sanders's 2015 letter contained the following answers to specific questions he had received from Claimant's counsel:

In response to your first question regarding [Claimant's] possible workers comp. claim and the prevailing factor of the knee condition/injury/disease. The answer: I do believe based on his history that the condition began arising from his workers compensation claim. His diagnosis was parameniscal cyst which could be a result of trauma sustained at that time. There was no tearing

of the meniscus. Question two, w[h]ether or not [Claimant] is at maximum improvement. Not at this juncture. I last saw [Claimant] on 1/9/15 and he was continuing to advance with his physical therapy and planning to be off work for an additional month intending to return to...