Hampton v. Big Boy Steel Erection

Decision Date06 May 2003
Docket NumberED81712.
PartiesLarry Hampton, Claimant/Respondent, v. Big Boy Steel Erection, Employer/Appellant, and Liberty Mutual Insurance Company, Insurer, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party.
CourtMissouri Court of Appeals

Brad McChesney for Appellant.

Matthew Padberg and Mark Keersemaker for Respondent.

Kathianne Knaup Crane, Judge.


In this workers' compensation case, employer, Big Boy Steel Erection, 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 claimant, Larry Hampton, had sustained 25% permanent partial disability of the body as a whole referable to the low back, caused by an injury he sustained while working as an ironworker. The Commission modified the award and found permanent and total disability. Employer contends that the Commission erred in awarding permanent total disability benefits instead of permanent partial disability benefits because 1) the award was not supported by competent and substantial evidence in that claimant's physical condition did not establish the unavailability of jobs in the open labor market and 2) the award was against the overwhelming weight of the evidence in that there was expert evidence to support a finding that claimant was partially disabled and employable or that there was total disability, but it resulted from a combination of impairments. We affirm.

On Friday, January 9, 1998, claimant was working for employer as an ironworker. He slipped on a beam, fell, and then caught himself. He was in pain and could not continue working that day. He rested over the weekend and called his employer on the following Monday. His employer sent him to see Dr. Joseph Prusaczyk at Acute Care. Dr. Prusaczyk took x-rays, gave medication, sent claimant to physical therapy and scheduled an MRI. The MRI revealed that claimant was suffering from degenerative disc disease, multi-level disc bulge, and relative narrowing of the spinal canal.

Claimant asked his employer for additional medical treatment. Employer's insurer referred him to Dr. Peter Mirkin, a surgeon with a sub-specialty in spinal conditions, whom he saw on April 10, 1998. Dr. Mirkin concurred with the diagnosis of degenerative disc disease and recommended a trial of epidural steroids. Claimant saw Dr. Steven Granberg for these injections. Because claimant indicated a desire to continue working and thought he could do so safely, Dr. Mirkin released him to work without restriction. Dr. Mirkin continued to see claimant for treatment of his low back pain, and, in August, 1998, told him he was not to lift more than 50 lbs.

Claimant also saw his family physician, Dr. Dennis Larson, in May, June, and November, 1998, and complained of low back pain. In March, 1999, Dr. Larson referred claimant to a neurosurgical specialist, Dr. Carl Lauryssen.

Claimant saw Dr. Lauryssen on April 6, 1999, and Dr. Lauryssen noted that claimant had continuing intractable and incapacitating pain. Dr. Lauryssen thought that surgical fusion would be appropriate treatment, but ordered a discogram to gain more information. After the discogram, Dr. Lauryssen recommended the fusion surgery.

On February 4, 1998, claimant filed a claim for compensation with the Division of Worker's Compensation for the January 9 back injury. The Administrative Law Judge heard the claim on November 13, 2001.

At the hearing, claimant testified that he never went back to work on " full duty" after the January 9, 1998 accident. Claimant did return to work on "light duty" as a supervisor until February 18, 1999. At the time of hearing, claimant was receiving a pension from the ironworker's union and social security disability. Claimant testified that there was not any kind of employment he could pursue on a full-time basis. Claimant elected not to have the fusion surgery because the surgery would not restore him to his former condition. Claimant testified that he felt his back pain was getting worse—he could not walk as far or sit as long—and that he was never pain free. He testified that he was currently taking prescription anti-inflammatory and pain medication. He testified that he could not have a sit-down job because his pain increases the longer he sits and that the only way to alleviate it is to lie down. He typically lies down three or four times a day, for an hour or longer each time.

Claimant also offered the depositions of Dr. Robert Margolis and Dr. Samuel Bernstein as well as all of his treatment records. Dr. Margolis, a neurologist, testified that he examined claimant on April 28, 2000. He found claimant to have pre-existent degenerative disc disease and to have suffered an injury from the January 9, 1998 accident. He testified that it was his belief that claimant's employment had "significantly contributed" to the development of degenerative disc disease. He concluded that claimant was 30% permanently and partially disabled; 25% from the January 9, 1998 injury and 5% from the pre-existing disc disease.

Dr. Bernstein, a vocational rehabilitation specialist with a Ph.D. in educational psychology, testified that he examined and evaluated claimant over a four-hour period on April 3, 2001. During the examination claimant was in pain, walked with a limp, and had difficulty getting in and out of his chair. He concluded that claimant was unemployable in the open labor market based on a variety of factors, including: age, obesity, degenerative disease of the spine, and hypertension. He testified that claimant's main problem was the degenerative joint disease that impeded claimant's ability to lift even relatively low amounts of weight (10-15 lbs.), to sit, stand, or walk for prolonged periods, or to engage in repetitive bending, stooping, balancing, or climbing.

Employer offered a letter from Dr. Mirkin and the depositions of Dr. Mirkin and Karen Kane, which were admitted. Dr. Mirkin testified that the degenerative disc disease was not attributable to claimant's activities at work and claimant had suffered no permanent partial disability that was attributable to work. He said that he did not believe that the evidence linking degenerative disc disease to heavy labor was "very firm" and that the three main factors contributing to disc disease were heredity, smoking, and age.

Karen Kane was a vocational consultant with a master's degree in education. Ms. Kane never personally evaluated or interviewed the claimant. She did not administer her own intelligence tests, but relied on those that Dr. Bernstein had conducted. She reviewed all the medical records and did a transferable skills analysis and labor market survey. While reviewing the medical records, she looked for physical restrictions placed on claimant and any type of medications claimant was taking. She used the Dictionary of Occupational Titles which is produced by the United States Department of Labor to perform her transferability analysis. She then contacted employers by phone to inquire about job openings, job responsibilities, and the possibility of on-the-job training. She did not inform the prospective employers about claimant's physical limitations and restrictions. Her conclusion was that claimant "would be able to seek, accept, be hired, and maintain full-time, gainful employment." She listed 10 jobs that she believed claimant would be suitable for, including car salesman, unarmed security guard, and Wal-Mart greeter.

The ALJ issued his award on February 11, 2002. The ALJ found 25% permanent partial disability of the body as a whole referable to the low back. The ALJ rejected a finding of total disability because he found Dr. Bernstein's opinion to be unpersuasive in that his reliance on claimant's subjective complaints was misplaced. Although he found claimant to be generally credible, the ALJ questioned the severity of claimant's complaints and his incentive to return to work. The ALJ also found there was no evidence that the January 9, 1998 injury, standing alone, had resulted in permanent and total disability.

On review the Commission found that 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 claimant was credible and that claimant's complaints, limitations, and pain were so limiting as to constitute total disability. The Commission found the nature of the injury to be severe and the subjective complaints and limitations to be in line with the objective findings on the condition of the back. It found claimant's decision to put off "massive surgery" for as long as possible to be completely reasonable. It concluded that the January 9, 1998 injury aggravated claimant's previously asymptomatic degenerative back problems resulting in total disability.

A. Standard of Review

The standards for judicial review of the Commission's award are set out in M O. C ONST. , Art. V, sec. 18 and Section 287.495.1 RSMo. The statute provides:

The 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 power;

(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 RSMo. See Greenlee v. Dukes Plastering Service, 75 S.W.3d 273, 275 (Mo. banc 2002); Curry v. Ozarks Elec. Corp., 39 S.W.3d 494, 495 (Mo. banc 2001).

The substance of this statute antedates the constitutional standard of review of administrative decisions which first...

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