Faulkner v. St. Luke's Hosp.

• Decision Date: 11 July 1995
• Docket Number: No. WD,WD
• Citation: 903 S.W.2d 588
• Parties: Crystal Sue FAULKNER, Appellant-Respondent, v. ST. LUKE'S HOSPITAL, Respondent-Appellant, Treasurer of Missouri Second Injury Fund, Respondent. 49286.
• Court: Missouri Court of Appeals

Page 588

903 S.W.2d 588

Crystal Sue FAULKNER, Appellant-Respondent, v. ST. LUKE'S HOSPITAL, Respondent-Appellant, Treasurer of

Missouri Second Injury Fund, Respondent.

No. WD 49286.

Missouri Court of Appeals,

Western District.

July 11, 1995.

Kevin M. McCormick, Kansas City, for respondent-appellant St. Luke's Hosp.

John B. Boyd, Kansas City, for appellant-respondent Faulkner

Sue Ann Sperry, Asst. Atty. Gen., Kansas City, for Respondent Treasurer of MO Second Injury Fund.

Before HANNA, P.J., and BRECKENRIDGE and SMART, JJ.

SMART, Judge.

This worker's compensation case involves issues of liability, attorney's fees, and interest. Crystal Sue Faulkner ("claimant") appeals from that portion of the award of the Labor and Industrial Relations Commission ("the Commission") which limited claimant's attorney's fees to $30,000 and denied interest upon the unpaid accrued benefits. St. Luke's Hospital ("employer") and Fire & Casualty Insurance Company of Connecticut ("insurer") appeal from that portion of the award of the Commission denying apportionment of disability liability between employer and the Second Injury Fund ("SIF").

In 1976, claimant worked in the warehouse of a button distributor, B. Blumenthal Company. During that time, claimant underwent three back surgeries, including two laminectomies and a bilateral fusion. The surgeries were not the result of a work related injury. Claimant was unemployed for approximately two years following the surgeries. The record shows that claimant was released by her doctor at some date in 1977 or 1978. She was restricted from lifting objects in excess of 50 or 60 pounds. Claimant felt she could go back to work at the warehouse with some limitations, but instead, claimant decided to take advantage of an opportunity to retrain herself in a more skilled field. Claimant spent one of the two years that she was unemployed retraining to become a cardiovascular technician. Upon completion of her training, claimant worked as the manager of the electrocardiography department at Park Lane Medical Center from 1978 until 1985.

In 1985, claimant began working as a cardiovascular technician for employer. At St. Luke's, claimant worked ten hours a day when she started in 1985 until she was injured in 1987. Claimant's job with employer required substantial physical exertion, including assisting doctors in angioplasties and angiograms, assisting in taking x-rays, pushing diagnostic equipment, lifting patients, filling out reports, administering CPR, cleaning and stocking diagnostic equipment and administering medications to patients. With the exception of a back sprain in 1986, she did not miss time from work for the back related problem and was not prevented from completing her job duties at St. Luke's. Furthermore, employer did not give claimant any less strenuous tasks because of her back. Claimant had only occasional back problems working as a cardiovascular technician and would use muscle relaxants when she did have discomfort. Claimant was able to delegate strenuous job duties to others in her department. Claimant's performance evaluations at both Park Lane and St. Luke's indicated satisfactory performance. Part of her job responsibilities included developing films of diagnostic or therapeutic procedures in a dark room located within the cardiovascular department. On July 2, 1987, at about 1:00 p.m., claimant reached above shoulder level to retrieve a box containing four one-gallon cartons of developing fluid. While reaching for the box, she turned to her side and twisted her lower and middle back. She felt an immediate strong, painful pulling and aching in her back. She reported the incident to her supervisor who referred her to the emergency room at St. Luke's. Claimant was diagnosed with an acute back strain.

After receiving medical treatment on a weekly basis for seven months, on February 1, 1988, claimant was released to return to work with limitations against repetitive heavy over-head lifting of objects in excess of forty pounds. Claimant returned to work for a period of less than two weeks. After experiencing increased pain and discomfort on a daily basis, she was unable to continue working. Six months later, claimant was diagnosed as having major depression.

Claimant filed a worker's compensation claim for her injuries against employer and the SIF. Three doctors testified by deposition that claimant had a preexisting permanent partial disability as a result of the surgeries. Dr. Lowry Jones, Jr., testified for employer and stated that claimant had a 20 percent body as a whole permanent partial disability attributable to her preexisting surgeries and that she sustained an 8 to 10 percent body as a whole permanent partial disability as a result of the July 2 low back sprain. Dr. Andrew Myers testified on behalf of claimant and stated that claimant's preexisting permanent partial disability resulting from the low back surgeries and fusion amounted to 40 to 45 percent of the body as a whole, and the permanent partial disability attributable to the July 2 injury was 30 to 35 percent of the body as a whole. Dr. Michael Poppa testified on behalf of the SIF and stated that claimant had a presumed disability of the body as a whole of 50 percent due to her previous three back surgeries and lumbar fusion, and as a result of her present injury, including the aggravation of her back condition resulting in a lumbar strain, claimant had an additional disability to the body as a whole of 10 percent.

After hearing claimant's case over a four day period and hearing testimony from three expert witnesses, the claimant and two other lay witnesses, and considering deposition testimony of six other expert witnesses, as well as, thirty-nine documentary exhibits, the Administrative Law Judge ("ALJ"): (1) ordered employer to afford permanent total disability compensation benefits to claimant; (2) ordered employer to furnish medical care and attention for lower back injury and an emotional injury; (3) denied apportionment of disability liability between employer and SIF; (4) denied interest upon the unpaid accrued benefits; and (5) capped claimant's attorney's fees at $30,000. Upon appeal by claimant and employer, the Commission affirmed the award of the ALJ on March 17, 1994. Claimant and employer both appeal.

Liability of Employer/Second Injury Fund

The sole issue raised by employer and insurer on appeal is that the Commission erred in awarding against the employer compensation due claimant for permanent total disability because the overwhelming weight of the evidence proves claimant had a preexisting industrial disability, which combined with the last injury to result in the permanent total disability.

This court may set aside an award of the Commission only if there is no substantial evidence to support it or it is clearly contrary to the overwhelming weight of the evidence. Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo.App.1993). The Commission is the judge of the credibility of witnesses. Id. In reviewing the Commission's award, this court must view the evidence and legitimate inferences to be drawn therefrom in the light most favorable to the award. Id. Even if this court would have reached a different conclusion, it may not substitute its judgment on factual issues for that of the Commission. Id.

The term "industrially disabling" is a judicially created term used to limit the types of preexisting injuries that give rise to SIF liability. In Missouri, prior to the amendment of § 287.220, the SIF has been liable for a claimant's permanent total disability only if the preexisting permanent partial disability was related to disability to work. Wilhite v. Hurd, 411 S.W.2d 72, 77 (Mo.1967). The term "industrially disabling" has been defined to mean "loss of earning capacity, rather than physical impairment as such." Id. Thus, the preexisting disability must be of such seriousness as to affect the claimant's employability or ability to perform work-related duties. Unfortunately, the judicially created term has been misinterpreted at times, depriving some claimants of SIF benefits because they have worked regularly, although in pain, and with limitations on their physical abilities. On June 21, 1993, the legislature amended § 287.220, providing that a preexisting permanent partial disability may induce SIF liability only if it is:

[O]f such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability....

Section 287.220.1, RSMo1994.

In this case, the ALJ's decision was handed down before the amendments became effective and the Commission rendered its decision after the effective date of the amendment. The Commission did not apply the new statutory amendment. The Commission found that there was no basis for assessment of liability to the SIF based on medical testimony presented by Dr. Poppa, who opined that claimant did not, in his opinion, have an "industrial disability." The Commission relied on Dr. Poppa's testimony in finding that the SIF was not responsible for claimant's permanent total disability, even though there was evidence that would support a contrary conclusion. The Commission did not specifically find that claimant did not have an "industrial disability," but such finding is implicit from its award.

Article I, section 13 of the Missouri Constitution provides that no statute retrospective in its operation can be enacted. However, a statute dealing only with procedure or remedies, in contrast to a statute dealing with substantive rights, may be applied retroactively. Vaughan v. Taft Broadcasting Co., 708 S.W.2d 656, 660 (Mo. banc 1986). Substantive laws generally...