Franklin v. Mitchell Mill Sys. USA, Inc.
| Decision Date | 27 May 2021 |
| Docket Number | No. SD 36898,SD 36898 |
| Citation | 625 S.W.3d 815 |
| Court | Missouri Court of Appeals |
| Parties | Roy Dale FRANKLIN, Claimant-Respondent, v. MITCHELL MILL SYSTEMS USA, INC., Employer-Appellant, Accident Fund Insurance Company of America, Insurer-Appellant, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent-Respondent. |
Attorney for Appellants – Ronald G. Sparlin of Joplin, MO.
Attorneys for Respondent Employee – Andrew P. Wood, William E. Peterson of Neosho, MO.
Attorneys for Respondent SIF – Eric S. Schmitt, Michael Bang of Springfield, MO.
Mitchell Mill Systems USA, Inc. ("Employer") and Accident Fund Insurance Company of America ("Insurer") (collectively, "Appellants"), appeal the decision of the Labor and Industrial Relations Commission ("the Commission") which determined that Roy Dale Franklin's ("Employee's") permanent and total disability resulted from his last workplace injury alone, rather than from a combination of his last injury and his pre-existing disabilities. The result of the Commission's decision is that Employee is not entitled to an award of permanent total disability benefits from the State Treasurer, as custodian for the Second Injury Fund ("SIF"). Appellants claim (1) that the finding that Employee is permanently and totally disabled as a result of the final injury in isolation is not supported by the facts found by the Commission, and (2) the award is not supported by sufficient competent and substantial evidence. Specifically, in both points, Appellants claim the Commission based its finding on the opinions of two experts, alleging both experts subsequently changed their opinions regarding the cause of Employee's permanent total disability. We find no error and affirm the decision of the Commission.
The Commission's decision will be affirmed unless: "(1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award." White v. ConAgra Packaged Foods, LLC , 535 S.W.3d 336, 338 (Mo. banc 2017) ; § 287.495.1, RSMo 2000.[ ] "Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the [C]ommission within its powers shall be conclusive and binding." § 287.495.1, RSMo 2000. In addition to findings of fact, this Court also defers to the Commission's determinations as to credibility of witnesses and the weight given to conflicting evidence. Greer v. SYSCO Food Servs. , 475 S.W.3d 655, 664 (Mo. banc 2015).
Annayeva v. SAB of TSD of City of St. Louis , 597 S.W.3d 196, 198 (Mo. banc 2020) (footnote omitted).
Employee worked as a welder with Employer from 2006-2014.1 Employee worked heavy labor fifty to fifty-eight hours a week as a welder for Employer which included frequently lifting fifty or more pounds, carrying, squatting, and kneeling. Employee's job with Employer involved more physical work than his previous job, and in 2009, Employee had to seek medical care for his lower back. In July 2011, Employee had back surgery and returned to work after six weeks.
After surgery Employee experienced less pain with his back, but he began experiencing more problems with his wrists which lead to bilateral carpal tunnel releases
in 2012 (right wrist) and 2013 (left wrist).2 Employee did not pursue a worker's compensation claim for his first back injury, but did file a claim for "bilateral upper extremities" (resulting in carpal tunnel syndrome ) attributing the cause to vibration incurred while welding. After the wrist releases, Employee's wrist issues improved but Employee continued to have pain, tingling and loss of grip strength.
Over time, due to his back condition, Employee requested Employer excuse him from certain types of jobs, like welding derricks, but Employer refused his request. Employee's sciatica returned and his back condition worsened while Employee welded derricks from 2013-2014. Eventually, Employee was bedridden after working an eight-hour shift for Employer on Saturday, April 12, 2014, at the end of a fifty-eight-hour work week. On Monday, April 14, 2014, Employee reported to work, but advised Employer that he could not work due to pain and he was sent to Freeman OccuMed.3 For a short period of time, Employee was released by the physician to perform light duty restricted work (no lifting, pushing, pulling or carrying more than ten pounds), but Employee never worked as a welder again.
Employee underwent a course of conservative treatment with Freeman OccuMed, received therapy and an epidural steroid injection with Dr. Woodward, then ultimately received a referral to Dr. Cunningham for surgery. Employee's treating authorized provider, Dr. Woodward, noted:
Employee had surgery in October 2014 in an effort to relieve and cure the effects of Employee's April 2014 work injury, but the surgery did not relieve Employee's pain symptoms. Employee had returned to full-time heavy labor employment after each of his six (6) prior major surgeries from injuries prior to his employment with Employer, but Employee was unable to return to employment after the April 2014 injury. Employee's wife assisted him in applying for Social Security Disability and he was approved on the initial application.
Employee filed a claim for occupational disease based on a progressive injury to Employee's lumbar spine with an onset of April 12, 2014. On May 28, 2015, an independent medical evaluation of Employee was conducted by Dr. P. Brent Koprivica ("Dr. Koprivica") at the request of Employee's attorney. In his initial evaluation Dr. Koprivica noted that Employee was having very profound postural restrictions attributable to his post-laminectomy syndrome
. Dr. Koprivica assigned restrictions for Employee, specifically: (1) have flexibility to change positions between sitting, standing, and walking, (2) a maximum for captive sitting or captive standing of less than one hour (with flexibility), (3) limit walking to less than fifteen minutes as a maximum (with flexibility), (4) have flexibility of sitting whenever necessary, (5) avoid frequent or constant bending at the waist, pushing, pulling or twisting, and (6) avoid sustained or awkward postures of the lumbar spine, and avoid squatting, crawling, kneeling or climbing.4 Dr. Koprivica opined in his evaluation that the severity of Employee's disability from the post-laminectomy syndrome, in isolation, was felt to have caused permanent total disability, but he would defer that issue to an appropriate vocational expert.
A vocational rehabilitation evaluation was conducted by Mr. Phillip Eldred ("Mr. Eldred"). Mr. Eldred opined that "[Employee] has preexisting conditions, but it is the restrictions from the injury on April 12, 2014 that constitute a hinderance or obstacle to employment." Mr. Eldred opined that Employee could not return to less than sedentary work and identified no transferable skills for sedentary work. Mr. Eldred opined that Employee is "unemployable in the open labor market" and that "[Employee] is permanently and totally disabled as a result of his injury on April 12, 2014, in isolation." In support of his opinion, Mr. Eldred noted Employee's functional limitations, limited education and poor test results. Mr. Eldred stated that Employee would have problems being re-trained in a formal training program due to his constant pain, use of narcotic medications, and low academic test scores.
Appellants offered testimony that supported their position that Employee was employable in the open labor market. Kristine Skahan conducted a vocational rehabilitation evaluation on behalf of the Employer. Ms. Skahan concluded that while Employee's restrictions eliminated his past work and he "was not found to have transferable skills to work at the less than full-range of light work[,]" Employee "retains the ability to perform other work at less than a full-range of light [work] that would not require transferable skills."
The Administrative Law Judge ("ALJ") found Employee to be permanently and totally disabled due to a combination of Employee's April 12, 2014 work injury and his pre-existing disabilities. In finding permanent total disability, the ALJ found the testimony of Mr. Eldred and Dr. Koprivica...
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