Gordon v. Tri-State Motor Transit Co.

• Decision Date: 13 October 1995
• Docket Number: No. 20086,TRI-STATE,20086
• Parties: Jack GORDON, Employee-Respondent, v.MOTOR TRANSIT CO., Employer-Respondent, and Missouri State Treasurer, Custodian of the Second Injury Fund, Appellant.
• Court: Missouri Court of Appeals

Page 849

908 S.W.2d 849

Jack GORDON, Employee-Respondent, v. TRI-STATE MOTOR TRANSIT CO., Employer-Respondent, and Missouri State Treasurer, Custodian of the Second Injury

Fund, Appellant.

No. 20086.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 13, 1995.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cara Lee Harris, Asst. Atty. Gen., Jefferson City, for appellant.

Jerry Kenter, John B. Boyd, Connaughton, Boyd & Kenter, P.C., Kansas City, for employee-respondent.

Ronald G. Sparlin, Blanchard, Robertson, Mitchell & Carter, P.C., Joplin, for employer-respondent.

GARRISON, Judge.

This is a workers' compensation case in which the Missouri State Treasurer (Appellant), as custodian of the Second Injury Fund (SIF), appeals from a final award of the Labor and Industrial Relations Commission (Commission). The Commission affirmed an earlier award by the Administrative Law Judge (ALJ) determining that Respondent Jack Gordon (Employee) was entitled to receive permanent total disability benefits from the SIF.

The injury which is the subject of the instant claim occurred on January 20, 1987, when Employee, who was a truck driver for Respondent Tri-State Motor Transit Co. (Employer), fell on ice while hooking onto a trailer in preparation for an over-the-road trip. He apparently sustained an injury to his back as a result of that fall and had not returned to work as of the time this claim was heard by the ALJ on May 27, 1993.

Employee had been injured prior to the injury which was the basis of this claim. In 1975 he injured his shoulder and neck when his truck was rear-ended; in 1977 his lower back was injured when he fell off a porch; and in 1979 he was run over by a truck on which he was working and received a broken jaw, crushed right shoulder, broken right arm and chipped right elbow. All of the medical testimony indicated that Employee had a pre-existing permanent partial disability as a result of those injuries.

The medical testimony in the instant case consisted of the testimony of one doctor whose opinion was that Employee sustained a permanent partial disability as a result of this fall rated as 15-20% of the body as a whole which, together with the effects of his previous injuries, left him with a permanent partial disability rating of 80-85% of the body as a whole. Another doctor testified that the injuries sustained in the 1987 fall resulted in a permanent partial disability rating of 15% of the body as a whole, his previous injuries had resulted in a permanent partial disability rating of 53 1/2 of the body as a whole, that the combined effects of those injuries resulted in an additional disability of 6 1/2, and that as a result of all the injuries, he had a permanent partial disability rating of 75% of the body as a whole.

The ALJ found that the Employee had industrially disabling injuries prior to the January, 1987 fall, and that the injuries sustained in that fall, when combined with the effects of the prior injuries, resulted in a permanent total disability. He held that the Employer was responsible for 15% permanent partial disability of the body as a whole as a result of the January, 1987 injuries, and that the SIF was responsible for permanent total disability benefits.

Appellant sought review by the Commission of the ALJ's findings and award. The Commission, with one member dissenting, affirmed the ALJ's award after finding that it was supported by competent and substantial evidence. Appellant then filed the instant appeal.

Appellant's sole point relied on is:

The Administrative Law Judge erred in awarding Employee permanent total disability benefits because Employee failed to prove he was permanently and totally disabled from employment in the open labor market in that all evidence found Employee capable of working.

Rule 84.04(d) ¹ requires that a point relied on in an appellant's brief "shall state ... what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...." The only issues for consideration on any appeal are those presented in the "points relied on" section of appellant's brief, and questions not there presented are considered abandoned. Skinner v. Dawson Metal Products, 575 S.W.2d 935, 938 (Mo.App.S.D.1978). In the instant case, the only action or ruling sought to be reviewed by Appellant is the action of the ALJ.

The Commission reviews the record and, when appropriate, determines the credibility of the witnesses and the weight to be given their testimony, resolves any conflicts in the evidence, and reaches its own conclusions independently of the referee's findings. Tillman v. Wedge Mobile Serv. Station, 565 S.W.2d 653, 658 (Mo.App.E.D.1978). After the Commission has determined an award in a workers' compensation case, the appellate court reviews the Commission's award, not the findings of the ALJ. Bell v. Arthur's Fashions, Inc., 858 S.W.2d 760, 762 (Mo.App.E.D.1993); Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo.App.W.D.1993); Gudde v. Heiman Grain, Inc., 830 S.W.2d 574, 575 (Mo.App.W.D.1992); Hatter v. Cleaning Service Co., 814 S.W.2d 951, 955 (Mo.App.W.D.1991); Jones v. Jefferson City School Dist., 801 S.W.2d 486, 489 (Mo.App.W.D.1990); Petrovich v. Orscheln Bros. Truck Lines, 607 S.W.2d 832, 834 (Mo.App.W.D.1980); Skinner v. Dawson Metal Products, 575 S.W.2d at 938. Accordingly, the ruling identified in Appellant's point relied on is not one which we have authority to review.

We are permitted, however, to review the argument portion of the brief to determine whether there has been plain error affecting substantial rights which, though not properly preserved, may have resulted in a manifest injustice or a miscarriage of justice. Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 859 (Mo.App.S.D.1993); Rule 84.13(c). We choose to do so in the instant case. It is apparent from the argument section of Appellant's brief that its complaint is with the finding of the Commission which affirmed the ALJ's award.

In reviewing the finding of the Commission, we are mindful of the standard of review in workers' compensation cases. An appellate court may modify, reverse, remand for rehearing or set aside the award of the Commission only if the Commission's actions were unauthorized by law or in excess of its authority, fraudulent, unsupported by the facts as found by the Commission, or unsupported by competent evidence. Lawson v. Emerson Elec. Co., 833 S.W.2d 467, 470 (Mo.App.S.D.1992); § 287.495.1. We review the whole record and consider the evidence in the light most favorable to the Commission's findings to determine whether the Commission could have reasonably made the findings and reached the result it did. Lawson v. Emerson Elec. Co., 833 S.W.2d at 471. The Commission is the sole judge of the credibility of the witnesses and the weight and value of the evidence. Id. at 470-71. We are not to substitute our judgment on issues of fact for that of the Commission even if we would have made a different initial conclusion. Id. at 471.

The issue argued by Appellant concerns whether there was evidence to support the finding that Employee sustained a permanent total disability within the meaning of Chapter 287. Section 287.020.7 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.

The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App.S.D.1982). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo.App.E.D.1992). Total disability means the "inability to return to any reasonable or normal employment." Brown v. Treasurer of...