Hampton v. Big Boy Steel Erection

• Decision Date: 09 December 2003
• Docket Number: No. SC 85456.,SC 85456.
• Citation: 121 S.W.3d 220
• Parties: Larry HAMPTON, Respondent, v. BIG BOY STEEL ERECTION, Appellant, Liberty Mutual Insurance Company, Insurer, Treasurer Of The State Of Missouri, as Custodian of the Second Injury Fund, Additional Party.
• Court: Missouri Supreme Court

121 S.W.3d 220

Larry HAMPTON, Respondent, v. BIG BOY STEEL ERECTION, Appellant Liberty Mutual Insurance Company, Insurer Treasurer Of The State Of Missouri, as Custodian of the Second Injury Fund, Additional Party.

No. SC 85456.

Supreme Court of Missouri, En Banc.

December 9, 2003.

Bradley L. McChesney, St. Louis, for Appellant.

Matthew J. Padberg, Mark A. Keersmaker, Jr., Jeremiah W. (Jay) Nixon, Atty. Gen., Lee B Schaefer, Michael T. Finneran, Asst. Attys. Gen., St. Louis, for Respondent.

RICHARD B. TEITELMAN, Judge.

In this workers' compensation case, Big Boy Steel Erection (employer) appeals from the final award of the Labor and Industrial Relations Commission (commission) allowing compensation and modifying the award of the Administrative Law Judge (ALJ). The ALJ found that Larry Hampton (claimant) had sustained a 25% permanent partial disability of the body as a whole, caused by an injury he sustained to his back while working as an ironworker. The commission modified the award and found permanent and total disability. The employer appeals, contending that the commission erred in awarding permanent total disability benefits because the award was not supported by competent and substantial evidence and the award was against the overwhelming weight of the evidence.

After opinion by the Court of Appeals, Eastern District, the case was transferred to this Court. Mo. Const. art. V, section 10. The commission's award is affirmed.

Background

The claimant was injured while working for the employer as an ironworker. He slipped on a beam and fell. An MRI revealed degenerative disc disease, multi-level disc bulge and relative narrowing of the spinal canal.

Dr. Mirkin, a surgeon with a sub-specialty in spinal conditions, treated the claimant and diagnosed degenerative disc disease. Dr. Mirkin released the claimant to work without restriction but eventually told him not to lift more than 50 pounds. He later concluded that the degenerative disc disease was not attributable to the claimant's activities at work and the claimant had suffered no permanent partial disability that was attributable to work.

Dr. Lauryssen, a neurosurgical specialist, examined the claimant and found that the claimant had continuing intractable incapacitating pain and recommended a surgical fusion.

Dr. Margolis, a neurologist, examined the claimant and found pre-existing degenerative disc disease and that the claimant suffered an injury in the workplace accident. Dr. Margolis noted that the claimant's employment had "significantly contributed" to the development of degenerative disc disease. He concluded that the claimant was 30% permanently and partially disabled, 25% from the workplace injury and 5% from the pre-existing disc disease.

Dr. Bernstein, a vocational rehabilitation specialist with a Ph.D. in educational psychology, examined the claimant. He found that the claimant would have difficulty lifting even relatively low amounts of weight (10-15 pounds), sitting, standing, or walking for prolonged periods, or engaging in repetitive bending, stooping, balancing or climbing. He concluded that the claimant was unemployable in the open labor market based on his age, lack of transferable skills, and physical limitations caused by obesity, degenerative disease of the spine and hypertension.

Karen Kane, a vocational consultant with a master's degree in education, reviewed the record without personally interviewing the claimant. She did a transferable skills analysis and labor market survey. She relied upon the Dictionary of Occupational Titles and contacted prospective employers. She did not consider the claimant's claims that he could not lift more than 10 to 15 pounds and could not stand or sit for more than a short period of time. Her conclusion was that the claimant "would be able to seek, accept, be hired, and maintain full-time, gainful employment."

The claimant filed a claim for workers' compensation benefits for the back injury. At the hearing before the ALJ, the claimant testified that he never went back to work on full duty, but did work briefly on light duty as a supervisor. He testified that he is never pain free despite medication. He typically lies down or reclines for hours each day. He testified that he can sit for "about an hour," can be on his feet for only a "half hour or so," and could not combine sitting, standing or walking to work a normal day. He testified that he could not lift more than a gallon of milk.

The ALJ awarded 25% permanent partial disability. Although he found the claimant to be generally credible, the ALJ questioned the severity of the claimant's complaints and his incentive to return to work. The ALJ rejected a finding of total disability because he found Dr. Bernstein's conclusion unpersuasive as too reliant on the claimant's subjective complaints. The ALJ also found there was no evidence that the workplace injury, standing alone, had resulted in permanent and total disability.

On review the commission found the claimant was permanently and totally disabled and entered a final award allowing compensation and modifying the award of the ALJ. The commission found, contrary to the ALJ, that the claimant was fully credible. The commission found the nature of the injury to be severe and the claimant's subjective complaints in line with the objective medical findings. It concluded that the workplace injury aggravated the claimant's previously asymptomatic degenerative back problems resulting in total disability.

Standard of Review

The Missouri constitution, article V, section 18 provides for judicial review of the commission's award to determine whether the award is "supported by competent and substantial evidence upon the whole record."

Section 287.495.1 of the Missouri statutes further indicates that a "court, on appeal, 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."¹

The constitutional standard ("supported by competent and substantial evidence upon the whole record") is in harmony with the statutory standard ("sufficient competent evidence in the record"). A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649 (1946).² Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.

There is nothing in the constitution or section 287.495.1 that requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. To the extent holding otherwise, the cases listed in the appendix are overruled.

Once this inference drops out, there is no need to divide the examination of the record into two steps, as the court of appeals directed in Davis.³ The two Davis steps can be merged into a single determination whether, considering the whole record, there is sufficient competent and substantial evidence to support the award. This standard would not be met in the rare case when the award is contrary to the overwhelming weight of the evidence.

Argument

The employer argues that the commission's award was not supported by sufficient competent and substantial evidence, because the nature of the claimant's injury and the claimant's complaints of pain and limitations in range of motion did not establish the unavailability of jobs in the open labor market. The employer argues that the claimant's allegations alone cannot establish the unavailability of jobs in the open labor market. The employer further argues that Dr. Bernstein's conclusions were not sufficient to determine that the claimant was totally disabled due to the workplace injury alone. The employer points to the evidence from Dr. Margolis, Dr. Mirkin and Ms. Kane (who reached conclusions contrary to the commission's award), and argues that the commission's award is against the overwhelming weight of the evidence.

The commission found the claimant's testimony fully credible. Therefore, the commission found credible the claimant's testimony that he must lie down or recline for several hours during the day— a limitation that would prevent full time employment. As was found by the commission, the claimant's allegations are supported by the medical evidence of his severe impairment. A claimant's credible testimony as to work-related functioning can constitute competent and substantial evidence. Jost v. Big Boys Steel Erection, Inc., 946 S.W.2d 777, 779 (Mo.App.1997).

By finding the claimant fully credible, the commission credited Dr. Bernstein's conclusions. Considering the claimant's limitations, his advanced age and his lack of transferable skills, Dr. Bernstein concluded that there would be no available jobs in the open labor market.

The commission reviewed the record and found that the claimant had been working at a job involving routine daily heavy lifting for years without symptoms of a back impairment. Following the accident, the claimant became unable to perform basic physical activity.

The record as a whole establishes that the claimant suffers from severe degenerative disc disease and that the impairment arose from the workplace accident. The commission relied upon sufficient competent and substantial evidence. Therefore, despite the differing evidence...