Conover v. Missouri State Highway Dept.

• Decision Date: 23 June 1981
• Docket Number: No. WD,WD
• Citation: 618 S.W.2d 470
• Parties: James Kenneth CONOVER, Respondent, v. MISSOURI STATE HIGHWAY DEPARTMENT, and Home Insurance Company, Appellants. 32081.
• Court: Missouri Court of Appeals

Page 470

618 S.W.2d 470

James Kenneth CONOVER, Respondent, v. MISSOURI STATE HIGHWAY DEPARTMENT, and Home Insurance Company, Appellants.

No. WD 32081.

Missouri Court of Appeals, Western District.

June 23, 1981.

Wendell E. Koerner, Jr., St. Joseph, for appellants; Brown, Douglas and Brown, St. Joseph, of counsel.

William G. Whetsell of Turner & Whetsell, St. Joseph, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

MANFORD, Presiding Judge.

In this workmen's compensation case, the employer/insurer appeals the award of compensation entered by the Industrial Relations Commission. The award was affirmed by the circuit court. The judgment of the circuit court affirming the award is herein affirmed.

Review by this court is of the award of the Industrial Commission and not of the finding of the Administrative Law Judge, Craig v. Calvert, 572 S.W.2d 235 (Mo.App.1978); and review is limited to determining whether the award is authorized by law and whether it is supported by competent and substantial evidence, Pulitzer Pub. Co. v. Labor & Ind. Relations, 596 S.W.2d 413 (Mo.banc 1980). No dispute exists between the parties, and the record clearly establishes that the award was authorized by law. The only issue to resolve is whether or not there was competent and substantial evidence to support the award. ¹

In attacking the award for lack of substantial and competent evidence, appellants allege that the Commission and the circuit court committed error in refusing to reverse the award because (a) only evidence of causation was based upon a hypothetical question propounded to the medical expert, the hypothetical question being fatally defective because it assumed medical findings not in evidence and that contrary to the evidence, it assumed that no other injuries were sustained by the employee and (b) the medical evidence on causation was equivocal and therefore not substantial evidence, thus rendering the Commission's finding of causal connection mere speculation and conjecture.

Upon the hearing of this matter, the parties stipulated that (a) the claimant was an employee of the Missouri Highway Department on January 12, 1978; (b) the employer is an employer operating within the Missouri Workmen's Compensation law; (c) the employer was insured by Home Insurance Company; (d) the employee sustained an injury on January 12, 1978 arising out of and in the course of his employment; (e) the employer had notice of the injury and (f) the claim was filed within the time prescribed by law. There was no dispute that the compensation rate was $95 over $80. At the time of the hearing, the employer had tendered payment for medical expenses to the physicians, but the costs incurred by the employee for medical services from his own physician were both denied and unpaid. The Commission, in its findings and order, found the employer were not responsible for payment of these particular medical costs ($268.83) because of lack of evidence regarding the necessity or reasonableness of these costs.

The issues drawn from the above stipulation were (1) whether or not the conditions complained of were a result of the accident of January 12, 1978 and (2) the nature and extent of the injury. It should be noted that (2) has been abandoned for all intents and purposes on this appeal, other than how it relates to causation. Appellant more directly argues that there was insufficient evidence to support a finding of causation or causal connection between the claimed accident and the claimed resulting injury.

The employee testified that on January 12, 1978, he was working in the stock room assisting in an inventory audit. He fell some four feet, striking his head on merchandise in the area, and as his head hit, it forced his chin to his chest. He stated that he had received no prior injury to or had no previous complaints regarding this area of his body subsequent to the January 12 fall. Immediately after the fall, he experienced pain in his neck and back. The day after the fall, the employee was sent to the employer's physician. No x-rays were taken, but the employee was given medication for pain and physical therapy for approximately a five-week period. The therapy was discontinued upon the decision of the employer's physician. The employee stated he was still having pain in his neck and back when the therapy ceased. The employee continued to work with attending pain and discomfort.

On May 9, 1978, the employee sought medical assistance from his personal physician. This contact was made after the employee suffered muscle spasms from pushing his lawnmower. The personal physician tested the employee for possible heart problems, which proved negative. The employee also testified that he experienced pain in his chest the last part of April when he reached up to catch a frisbee thrown during a family picnic.

During the time the employee was tested by his personal physician, he was referred to a neurosurgeon who, after examining the employee (including x-rays and a spinal tap), concluded that the employee suffered from ruptured disks in the cervical region of the spine. Corrective surgery was performed with only a healing and drainage problem involving the hip, from which bone was removed to complete the cervical fusion.

Appellants correctly point out our courts have held that the nature, cause and extent of disability can be determined by the testimony of the claimant if the facts of such fall within the realm of the layman's understanding, but when injury and effect involve sophisticated diagnosis and treatment, the nature, cause and extent of disability must be established by expert testimony. Appellant cites Griggs v. A. B. Chance Company, 503 S.W.2d 697 (Mo.App.1973). It is obvious that appellants' argument on this point seeks two concurring results, the first being that the...