Dunn v. Hussman Corp.
| Decision Date | 13 December 1994 |
| Docket Number | 65434,Nos. 65433,s. 65433 |
| Citation | 892 S.W.2d 676 |
| Parties | Nancy DUNN, Respondent, v. HUSSMAN CORPORATION, Appellant, and The Treasurer of Missouri Custodian of the Second Injury Fund, Respondent. Nancy DUNN, Appellant, v. HUSSMAN CORPORATION, Respondent, and The Treasurer of Missouri Custodian of the Second Injury Fund, Respondent. |
| Court | Missouri Court of Appeals |
Robert Henry Pedroli, St. Louis, for respondent Dunn.
Karen A. Mulroy, St. Louis, for appellant Hussmann.
Jeremiah W. (Jay) Nixon, Atty. Gen., Maria W. Campbell, Asst. Atty. Gen., Jefferson City, for respondent Second Injury Fund.
Hussmann Corporation (employer) appeals from a decision by the Labor and Industrial Relations Commission (Commission) awarding its employee, Nancy Dunn (claimant), compensation for injuries she suffered. On appeal, employer contends the Commission erred in finding: (1) claimant permanently and totally disabled solely as a result of the January 6, 1989 injury; and (2) claimant gave employer adequate notice of her injury and employer and insurer were not prejudiced. Claimant cross-appeals from the Commission's decision to vacate its August 24, 1993 Final Award. We reinstate the Commission's initial award of August 24, 1993 against employer and the Second Injury Fund.
Claimant, a forty-four year old woman with an eighth grade education, worked for employer approximately eleven years. She assembled and repaired manufactured goods on an assembly line. On January 3, 1989, claimant started the week working as an electrician on the assembly line, a job she had previously performed infrequently. The task required claimant to use an airgun, wire stripper, wire cutters, screw driver, and crimping tool to make about twenty electrical connections on each unit. Claimant testified this work required her to sit in a cramped position on a low backless stool with her head down for a long period of time and she had to be fast in her work. By January 7, 1989, her shoulder, neck, and right arm were hurting "real bad." Claimant told a co-worker She did not report the pain to her supervisor.
Claimant testified she was in severe pain Friday night and Saturday. On Sunday, claimant's husband took her to the emergency room. According to the hospital records, claimant did not know of any precipitating event which could have caused her pain. The next day, a cervical myelogram was performed. It revealed two ruptured discs in her neck and an anterior cervical fusion was performed.
Claimant testified her condition grew worse following the surgery. Claimant was readmitted into the hospital on January 22, 1989, and underwent further surgery to remove and replace a bone plug which had slipped.
Following the second surgery, claimant continued to complain of pain, numbness, and weakness in her neck, right shoulder, and right arm. Her neck was also visibly distorted and she had difficulty speaking, swallowing, and drinking.
On October 2, 1989, claimant was given a medical release and she returned to work for a period of nine months. However, claimant and her supervisor testified she was never the same after the injury and struggled upon her return to work. Also, an office note from claimant's physician, Dr. Paul J. Sheehan, and other evidence admitted during the hearing indicates the work release was provided at claimant's urging. Claimant was anxious to return to work and assured Dr. Sheehan she could abide by certain work restrictions. Dr. Sheehan recommended claimant have physical therapy and work only four hours a day. Employer, however, refused to allow claimant to return to work unless it was full time and without limitations. Claimant returned to Dr. Sheehan and he subsequently issued a work release. Claimant returned to work, with medication, but immediately thereafter suffered serious physical difficulties.
On October 19, 1989, claimant returned to Dr. Sheehan's office complaining of swelling and pain in her hand and elbows. On February 21, 1990, claimant injured her left hand while performing her job duties. Claimant testified she heard something pop or pull and a "big knot" developed on the top portion of her left wrist. By June 25, 1990, claimant was unable to continue working. A myelogram was performed on June 26, 1990 which indicated a bulging disc in her neck. Dr. Ronald L. Fischer subsequently examined claimant and refused to release her for work. Claimant was examined over the next year by Dr. Fischer and other doctors.
On June 20, 1991, Dr. Fischer concluded claimant would never be able to return to work for employer, nor tolerate a sedentary job because of her upper back and neck pain. He also opined claimant would never be able to tolerate a job which requires repetitive usage of her right arm. On August 25, 1991, Dr. Alex R. Shreim, examined claimant and concluded she was permanently and totally disabled. Dr. Shreim attributed the disability entirely to the injury suffered on January 6, 1989.
Francine Bogar, an employee benefits representative for employer, testified at the hearing. She stated claimant's husband called her on January 9, 1989 to tell her claimant had gone to the hospital with chest pain and request a medical leave form. On January 17, 1989, Ms. Bogar received a benefit request form from claimant stating she was being treated for a herniated cervical disc. Ms. Bogar also testified she sent several benefit request forms to claimant during the next few months following claimant's injury, and each time claimant returned the forms marked "not related to employment." Ms. Bogar did not receive a benefit request form from claimant stating her condition was work related until May 23, 1989. Claimant testified her husband filled out all of the forms prior to May 23, 1989 because claimant was in severe pain and had to relearn how to write following the injury.
Claimant filed two workers' compensation claims, both of which are at issue in this appeal. Claim number 88-177845 arose out of the initial injury on January 6, 1989 and was filed against employer and insurer. Claim number 90-021490 related to the subsequent injury on February 23, 1990 and was filed against both the employer and the Second Injury Fund. Both claims were consolidated at hearing and during the appeal before the Commission.
The Administrative Law Judge (ALJ) found employer and insurer liable for permanent and partial disability arising out of the January 6, 1989 injury, and the Second Injury Fund liable for permanent and total disability arising out of the February 23, 1990 injury. Employer and insurer appealed the 1989 injury award, and the Second Injury Fund appealed the 1990 injury award.
After listening to oral argument and reviewing the briefs filed by the parties, the Commission upheld the ALJ's decision on August 24, 1993. Employer and insurer filed a petition for "Rehearing of Oral Argument" on September 2, 1993, within the thirty day appeal period as prescribed by § 287.495 RSMo 1986. 1 The Commission granted this request.
Following a second oral argument, the Commission entered an amended Final Award on December 15, 1993. It found the employer and insurer liable for permanent total disability and lifetime benefits in connection with the 1989 injury. No liability was found against the Second Injury Fund. This appeal followed.
We find claimant's cross-appeal dispositive as to employer's first point on appeal. Accordingly, we address it first.
In the cross-appeal, claimant contends the Commission exceeded its authority in granting employer's Motion for Rehearing, and subsequently altering its original award. Claimant asserts the Commission is a creature of statute and, as such, does not have any more authority than what is specifically granted to it by statute. Since there is no provision within the Workers' Compensation Act authorizing the Commission to entertain motions after the final award is issued, claimant argues, it follows the Commission was not authorized to do so.
The Second Injury Fund relies exclusively on Fisher v. City of Independence, 370 S.W.2d 310 (Mo. banc 1963). There, a city employee's common law action against the city was dismissed on the city's representation it had qualified as a self-insured employer and, thus, employee's action was subject to the provisions of the Missouri Workmen's Compensation Law. Id. at 311-312. The employee then filed a workers' compensation action against the city and subsequently an award was issued in his favor on July 28, 1959. Id. at 312. Following the award, the parties learned the city had failed to maintain its status as a self-insurer and, upon motion of the employee, the Commission vacated its award and dismissed employee's claim on August 12, 1959. 2 Id. Thus, in Fisher, the Commission's decision to reconsider its original award arose out of the discovery that one of the facts it had relied on was plainly erroneous.
The Supreme Court held in Fisher the Commission was acting within its authority when it vacated an award within the appeal period and, after reconsideration, issued a final award dismissing the employee's compensation claim. Fisher, 370 S.W.2d at 316. The court reasoned the award was not binding until the thirty day appeal period expired. Id. The court further reasoned the very nature of the Commission's function in determining the facts on which its jurisdiction rests and liability under the act of the persons before it necessarily implies the Commission has the power and authority to change an award within the appeal period. Id. The Second Injury Fund argues no principled distinction exists between the present case and Fisher and, therefore, claimant's cross-appeal must be denied. We disagree.
We are, of course, bound by the decisions of the Missouri...
To continue reading
Request your trial
-
Sell v. Ozarks Med. Ctr.
...established that actual knowledge of an employee's supervisor does impute that knowledge unto the employer[.]” See Dunn v. Hussman Corp., 892 S.W.2d 676, 681 (Mo.App.1994) (“[n]otice or knowledge is imputed to the employer when it is given to a supervisory employee.”). Hutchings admitted hi......
-
Holmes v. Interiors by Canova
...and competent evidence to support it or if it is clearly contrary to the overwhelming weight of the evidence." Dunn v. Hussman Corp., 892 S.W.2d 676, 680-81 (Mo.App. 1994). Findings and awards of the Commission which are based on the interpretation of law, rather than the determination of f......
-
Doerr v. Teton Transp., Inc.
...such as this, "[n]otice or knowledge is imputed to the employer when it is given to a supervisory employee."12 Dunn v. Hussman Corp., 892 S.W.2d 676, 681 (Mo.App.1994). Here, there was testimony and evidence that Claimant notified Employer of his accident in the days immediately following h......
-
Bunker v. Rural Electric Cooperative
...is so well settled that there have been only a few cases in more recent times that even touch on the subject. In Dunn v. Hussman Corp., 892 S.W.2d 676 (Mo. App. E.D. 1994), the issue before the court was whether the Commission erred in rescinding its initial award, granting a rehearing, and......