Faubion v. Swift Adhesives Co., WD

• Court: Missouri Court of Appeals
• Writing for the Court: FENNER
• Citation: Faubion v. Swift Adhesives Co., 869 S.W.2d 839 (Mo. App. 1994)
• Decision Date: 01 February 1994
• Docket Number: No. WD,WD
• Parties: Harold L. FAUBION, Appellant, v. SWIFT ADHESIVES CO., Respondent, and Treasurer of Missouri as Custodian of 2nd Injury Fund, Respondent. 48104.

Page 839

869 S.W.2d 839

Harold L. FAUBION, Appellant, v. SWIFT ADHESIVES CO., Respondent and Treasurer of Missouri as Custodian of 2nd Injury Fund, Respondent.

No. WD 48104.

Missouri Court of Appeals Western District.

Feb. 1, 1994.

Donald C. Pierce, St. Joseph, for Faubion.

Kip A. Kubin, Overland Park, KS, for Swift Adhesives Co.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Reginald Harrington, Asst. Atty. Gen., Kansas City, for Treasurer of Missouri.

Before LOWENSTEIN, P.J., and TURNAGE and FENNER, JJ.

FENNER, Judge.

Appellant, Harold L. Faubion, appeals the decision of the Labor and Industrial Relations Commission (Commission) affirming the findings of the Administrative Law Judge (ALJ) in this workers' compensation case. The ALJ determined that Faubion was not permanently and totally disabled as a result of a work-related accident on March 31, 1988, and awarded Faubion compensation for his permanent partial disability.

The award was against Faubion's employer-insurer and the Treasurer of the State of Missouri as custodian of the Second Injury Fund. ¹ The ALJ ordered Faubion's employer-insurer to pay to Faubion 123.2 weeks of compensation at the rate of $161.89 per week for a total of $19,944.85. The ALJ further found the Second Injury Fund to be liable and ordered the Treasurer of the State of Missouri to pay to Faubion 12.3 weeks of compensation at the rate of $161.89 per week for a total of $1991.25. As stated above, the Commission affirmed the ALJ's award.

There is no dispute that Faubion was injured on March 31, 1988 during the course of his employment at Swift Adhesives Company (Swift), ² and that Faubion timely filed a claim for compensation.

On appeal, Faubion asserts that there was no competent and substantial evidence to support the Commission's determination that Faubion was not permanently and totally disabled as a result of his accident at Swift. Faubion further argues on appeal that the Commission relied upon the expert medical testimony of Dr. Andrew McCanse, who was not a credible witness, in reaching its conclusion that Faubion was not permanently and totally disabled, and therefore its decision was not supported by competent and substantial evidence. ³

An appellate court may set aside the decision of the Commission only if the findings of the Commission are clearly contrary to the overwhelming weight of the evidence or no competent and substantial evidence supports the decision. Gudde v. Heiman Grain, Inc., 830 S.W.2d 574, 576 (Mo.App.1992). This court reviews workers' compensation cases in the light most favorable to the Commission's decision and upholds the decision if it is supported by competent and substantial evidence on the whole record. Rector v. City of Springfield, 820 S.W.2d 639, 640 (Mo.App.1991) (en banc). Further, this court must disregard evidence unfavorable to the Commission's decision even though a finding by the Commission to the contrary would have been supported by the evidence. Id. In resolving issues concerning credibility of witnesses, we defer to the Commission who is charged with the responsibility of passing upon the credibility of all the witnesses. Mashburn v. Tri-State Motor Transit Co., 841 S.W.2d 249, 250 (Mo.App.1992).

Section 287.020.7, RSMo Supp.1993 provides:

The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

In other words, total disability means the inability to return to any reasonable or normal employment. Isacc v. Atlas Plastic Corp., 793 S.W.2d 165, 166 (Mo.App.1990). The test for permanent total disability is whether, given the employee's situation and condition, he is competent to compete in the open labor market. Id. This test measures the worker's prospects for returning to employment. Id. The central question is whether any employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition. Id.

A hearing was held before the ALJ on September 22, 1992. The evidence, viewed in the light most favorable to the Commission's decision, revealed the following: Faubion was 67 years old at the time of the hearing, with a high school education and one year of college education. Faubion testified that he started working at Swift in December of 1978. His duties included making, barrelling, and shipping glue. After making the glue, he would cart it off in fifty-five gallon barrels weighing about six hundred pounds each. Until he could get the barrels on a truck, he would manually handle the barrels. Faubion continued to do this work until his accident on March 31, 1988.

Faubion testified that prior to his accident in March of 1988, he had had knee problems and extensive knee surgery. In 1984, he went to see Dr. William Gondring who performed arthroscopic surgery on his left knee. In December of 1984, Faubion had a complete left knee replacement which was performed by Dr. Gondring. This was necessitated by arthritis. Faubion returned to his job at Swift after the surgery and was able to perform his job duties as before. The problems in his right knee eventually worsened, and in the fall of 1987 Dr. Gondring performed a complete right knee replacement on Faubion, which was also necessitated by arthritis. Faubion returned to work after the right knee replacement, in February of 1988, and was able to perform all his job duties. He testified that he had no limitations.

On March 31, 1988, Faubion was loading a truck and he hit something on the dock while he was pulling a barrel backwards. He apparently fell underneath the barrel. When he stood up, he could not walk backwards, but could only walk forward. He suspected that he broke something, but managed to finish out his day with the help of a co-worker. Faubion stated that when he got home that day, he was experiencing a lot of pain in both of his knees. He called Dr. Gondring's office and they sent him pain killers. The day following the accident was Good Friday and Faubion did not have to work. By Sunday, Faubion was unable to walk without the assistance of a walker.

Almost two weeks after the accident, on April 12, 1988, Faubion had a regularly scheduled visit with Dr. Gondring who told Faubion to stay off his feet and to stay home from work. Faubion's x-rays revealed that he had fractured both of his knees. Faubion continued to see Dr. Gondring on a regular basis, and in June of 1988, Dr. Gondring made arrangements for Faubion to see Dr. David Stulberg, the inventor of the artificial knee, in Chicago. In August of 1988, Dr. Stulberg, with Dr. Gondring's assistance, performed a total right knee revision on Faubion, removing the old right knee prosthesis and replacing it with a new prosthesis. Faubion testified that after the surgery, he was on a walker for awhile and then on a cane. He stated that he was doing fine until January of 1989 when his right kneecap separated. He went to see Dr. Gondring who replaced his right kneecap. A couple of days after the surgery, Faubion developed an infection of the prosthesis in his right knee. Dr. Gondring operated again in March of 1989.

Faubion testified that he has not worked since his accident. Since March of 1989, he has had to use a walker to get out of bed, he usually walks with a cane, he cannot walk up steps, he cannot kneel, and he cannot stand still. He stated that since his accident, he can walk about one block up and back and he can drive to the grocery store. He goes to the YMCA for an hour five days a week to exercise in the pool. He also mows his lawn on his riding mower. His physical problems are only in connection with his knees.

Dr. Bernard Abrams testified by deposition. Dr. Abrams examined Faubion at the request of Faubion's attorney. Dr. Abrams specializes in neurology and is board certified. After examining Faubion on May 17, 1991, it was Dr. Abrams' opinion that Faubion had a permanent partial disability or impairment of 50.6 percent. Later in the deposition, Dr. Abrams stated that, in his opinion, Faubion was permanently and totally disabled as a result of his injury on March 31, 1988. However, Dr. Abrams later qualified this statement by saying that he believed that Faubion was permanently and totally disabled from his prior employment, and stated, "I think if you made up a list of functional disabilities for him, I think probably there is some job that he could fit into, I mean some type of sedentary job, but when you take his age, then it gets to be a little bit more difficult to find him a job." Then the following colloquy occurred:

Q [attorney for Swift]: As far as physical requirements then, you think that there are jobs out there that would fall within any physical restrictions Mr. Faubion might have; is that true?

A [Dr. Abrams]: Well, I think there probably are.

Q: You think he could do some types of sedentary employment, true?

A: I think that that's probably true, yes.

Q: And at least to your understanding he is not restricted in any means from using his upper extremities or anything above the knees; is that true?

A: No.

Q: The statement I made was true?

A: The statement you made was true.

* * * * * *

Q: Now, if I understand your opinion correctly, you say that based upon his age and other factors that you note you think it's unlikely that he is going to be able to--or it's unlikely that somebody would hire him, but certainly physically he would be capable of doing some jobs, true?

A: Yes.

Dr. Abrams only examined Faubion one time. Furthermore, he was not board...