Gordon v. City of Ellisville

• Decision Date: 28 October 2008
• Docket Number: No. ED 91097.,ED 91097.
• Citation: 268 S.W.3d 454
• Parties: Gerald GORDON, Appellant, v. CITY OF ELLISVILLE, and Treasurer of the State of Missouri as Custodian of Second Injury Fund, Respondents.
• Court: Missouri Court of Appeals

268 S.W.3d 454

Gerald GORDON, Appellant, v. CITY OF ELLISVILLE, and Treasurer of the State of Missouri as Custodian of Second Injury Fund, Respondents.

No. ED 91097.

Missouri Court of Appeals, Eastern District, Division One.

October 28, 2008.

James C. Ochs, Stephen P. Dowil, Clayton, MO, for appellant.

Margaret Mary Hecht, Saint Louis, MO, for respondents.

OPINION

GLENN A. NORTON, Judge.

Gerald Gordon ("Claimant") appeals the decision of the Labor and Industrial Relations Commission ("Commission") denying him benefits after he was injured while employed as a public works maintenance worker for the City of Ellisville ("Employer"). We affirm.¹

I. BACKGROUND

On October 21, 2005, Claimant was in the process of climbing out of a tub grinder at work when he slipped and fell on his right arm with his arm extended. Claimant reported the injury to Employer and went to the emergency room. After taking x-rays, the hospital staff told him to put ice on his shoulder and to see Employer's doctor. Employer's doctor recommended physical therapy, but when the therapy exacerbated his pain, Claimant went to see Dr. Richard Lehman, an orthopedic surgeon. Dr. Lehman performed an MRI, revealing a massive rotator cuff tear. Dr. Lehman then scheduled Claimant for surgery.

On November 7, 2005, Dr. Lehman performed surgery on Claimant's right shoulder. Following surgery, Claimant participated in physical therapy until he was released to work on March 14, 2006, with no restrictions.

Claimant filed a claim for worker's compensation for the period of time from the date of his work accident until March 14, 2006. According to the record, the parties stipulated, among other issues, that Claimant sustained an accidental injury arising out of and in the course of employment. The issues left for resolution were: (1) medical causation with respect to Claimant's need for surgery and his post-operative treatment; (2) whether he was entitled to temporary total disability benefits for the October 2005 to March 2006 time period; and (3) the nature and extent of any permanent partial disability he sustained.

At the hearing, Claimant testified about the circumstances of his work accident and the difficulties he continues to experience using his arm. He also spoke about a shoulder injury he sustained in 1993. In March of that year, Claimant underwent an open right rotator cuff repair. According to Claimant, after the 1993 surgery he was 99.5% back to normal and had no difficulties performing the labor required for his job. He could also play softball, bowl and golf without problems with respect to his right arm. However, Claimant stated that since his 2005 injury, he can no longer play sports and needs assistance to compensate for pain in his arm when performing work duties.

Claimant called Dr. Robert Poetz to testify on his behalf by deposition. Dr. Poetz is an osteopathic doctor who practices family medicine but does not perform orthopedic surgery. Dr. Poetz examined Claimant in August 2006 and reviewed his medical records and patient history. Based on his observations and review, Dr. Poetz diagnosed Claimant's medical condition as a right rotator cuff tear from the 1993 injury. He further diagnosed a massive irreparable right rotator cuff tear, a tear to the muscle that stabilizes the shoulder joint as part of the rotator cuff (a subscapularis tear), and shoulder pain when Claimant raised his right arm (impingement syndrome) as a result of the October 2005 injury. He concluded that Dr. Lehman's surgical procedures were necessary because of Claimant's October 2005 injury.

Dr. Poetz opined that Claimant suffered a 55% permanent partial disability to the upper right extremity as measured at the right shoulder directly resulting from the October 2005 injury. In addition, he testified that the October 2005 accident was a substantial and prevailing factor in causing the 55% permanent partial disability to Claimant's right shoulder.

Employer presented the deposition testimony of Dr. Lehman. Dr. Lehman first examined Claimant in November 2005. He took a patient history, which included Claimant's October 2005 injury and his 1993 injury. Dr. Lehman stated that although he believed Claimant's rotator cuff tear was a result of the October 2005 work accident prior to performing surgery, he came to a different conclusion after observing Claimant's shoulder during surgery.

According to Dr. Lehman, when he operated on Claimant's shoulder, he expected to see a re-tear of Claimant's previous rotator cuff repair, but instead found no evidence of any good rotator cuff tissue. Dr. Lehman also noticed chronic changes in Claimant's joint that appeared to be long-term in nature. Because Dr. Lehman found no evidence of any good rotator cuff tissue and no acute changes, he concluded that Claimant's October 2005 work accident was not the prevailing factor in causing his need for surgery. He diagnosed Claimant's 2005 work accident as a strain of the right shoulder causing inflammation and found that the strain had no effect on Claimant's rotator cuff. Dr. Lehman concluded that Claimant did not have a disability as a result of the October 2005 work accident.

The Commission, in a two-to-one decision, adopted the Administrative Law Judge's ("ALJ") findings and conclusions that Claimant was not entitled to benefits. In her findings and conclusions, the ALJ specifically found Dr. Lehman's testimony to be "more persuasive" than that of Dr. Poetz because: (1) Dr. Poetz is a family doctor who does not perform shoulder surgeries, while Dr. Lehman is a board-certified orthopedic surgeon who devotes 40% of his practice to shoulder surgery; (2) Dr. Lehman actually performed the surgery on Claimant and viewed the damage to Claimant's shoulder; and (3) while Dr. Lehman gave clear and cogent explanations as to how he arrived at his expert opinion, Dr. Poetz did not reconcile his conclusion that Claimant's injury was the prevailing factor in causing his rotator cuff tear with the arthroscopic findings and did not show any acute injury. Based on Dr. Lehman's testimony, the ALJ found that the injury Claimant suffered from his work accident was not the prevailing factor in causing his rotator cuff tear.

Claimant filed this appeal of the Commission's decision to deny benefits.

II. DISCUSSION

A. Standard of Review

Section 287.495 RSMo 2000² provides the grounds for setting aside the Commission's decision with respect to claims raised under the Worker's Compensation Law. Specifically, it states that this Court:

shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1.

We are not required to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Instead, we consider the whole record to determine whether sufficient competent and substantial evidence supports the award. Id. "An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Id. The Commission is charged with passing upon the credibility of witnesses, and it may disbelieve testimony of a witness even though no contradictory or impeaching evidence is presented. Lawson v. Emerson Elec. Co., 833 S.W.2d 467, 470 (Mo.App. S.D.1992) (citations omitted), overruled on other grounds by Hampton, 121 S.W.3d at 223.

B. The Commission's Decision to Deny Benefits Was Supported by Competent and Substantial Evidence and Was Not Against the Overwhelming Weight of the Evidence

Claimant raises two points on appeal. Although the arguments are distinct, Claimant essentially argues in both points that the Commission's decision to deny benefits was not supported by competent and substantial evidence and was against the overwhelming weight of the evidence.

1. This Court Must Apply the "Prevailing Factor" Standard

Claimant argues in his first point that the Commission's decision was not supported by competent and substantial evidence and was against the overwhelming weight of the evidence because the Commission found that Claimant sustained an injury to his shoulder as a result of the 2005 work accident, yet failed to award compensation. In particular, Claimant argues that the Commission's finding supports an award of compensation since he sufficiently proved that the 2005 work accident aggravated his pre-existing shoulder injury.

Section 287.120 RSMo Supp.2006³ requires employers to furnish compensation according to the provisions of the Worker's Compensation Law for personal injuries of employees caused by accidents arising out of and in the course of the employee's employment. Section 287.120.1. An "accident" is an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by the specific event during a single work shift. Section 287.020.2 RSMo Supp.2006.⁴ When the Worker's Compensation Law refers to an "injury," it means an injury arising out of and in the course of employment. Section 287.020.3(1). Section 287.020.3(1) further states that "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." Finally, Section 287.020.3(1) defines "prevailing factor" as "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

Claimant argues that because the Commission found that he suffered some trauma to his...