Holaus v. William J. Zickell Co.

• Court: Missouri Court of Appeals
• Writing for the Court: SIMON; ROBERT G. DOWD, Jr., P.J., and HOFF
• Citation: Holaus v. William J. Zickell Co., 958 S.W.2d 72 (Mo. App. 1997)
• Decision Date: 16 December 1997
• Docket Number: No. 71901,71901
• Parties: Joseph HOLAUS, Employee/Appellant, v. WILLIAM J. ZICKELL COMPANY and General Accident Insurance Company, Employer/Insurer/Respondent, and Second Injury Fund, Respondent.

Page 72

958 S.W.2d 72

Joseph HOLAUS, Employee/Appellant, v. WILLIAM J. ZICKELL COMPANY and General Accident Insurance Company, Employer/Insurer/Respondent and Second Injury Fund, Respondent.

No. 71901.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 16, 1997.

Charles W. Bobinette, Uthoff, Graeber, Bobinette & O'Keefe, St. Louis, for Appellant.

Raymond J. Flunker, Evans & Dixon, St. Louis, for Respondent.

SIMON, Judge.

Joseph Holaus (Employee) appeals from an award of the Labor and Industrial Relations Commission of Missouri (Commission) dated December 18, 1996. The Commission adopted the findings of fact and conclusions of law of the administrative law judge (ALJ) and affirmed the decision denying compensation because employee failed to satisfy his burden of proving that the rotator cuff tear in his right shoulder was caused by the August 21, 1990 altercation.

On appeal, employee contends the Commission erred in that it did not award: (1) benefits to employee under the Missouri Workers Compensation Act as a result of the August 21, 1990 work-related accident because the facts found by the Commission do not support the award, the award is not supported by competent and substantial evidence, and the award is clearly contrary to the overwhelming weight of the evidence; (2) workers compensation benefits to employee because, as a matter of law, his amended claim for repetitive trauma on the job, resulting in injury to his right shoulder, was not time barred in that employee suffered a repetitive on-the-job injury compensable under a theory of accident and the second amended claim for repetitive trauma was not barred by the applicable statute of limitations; and (3) Second Injury Fund benefits to employee because the competent and substantial evidence on the record as a whole established that the disability suffered by employee resulting from his work-related injury combining with his pre-existing permanent partial disabilities referable to his low back and knees resulted in a disability greater than the simple sum of these disabilities. We affirm.

Our review is limited to a determination of whether the Commission's award is supported by competent and substantial evidence, viewing the record as a whole. Smith v. Climate Engineering, 939 S.W.2d 429, 431 (Mo.App. E.D.1996). We review all evidence and inferences in the light most favorable to the Commission's award. Id. We defer to the Commission on issues concerning credibility and weight to be given to conflicting evidence and testimony. Id. The Commission is free to disregard testimony of a witness even if no contradictory or impeaching evidence is introduced. Id. It is in the Commission's sole discretion to determine the weight to be given expert opinions, and that cannot be reviewed by this Court. Id. Where issues involve matters of law, we review independently. Smith v. Climate Engineering, 939 S.W.2d at 431.

The record indicates that employee, who was 44 years old at the time of the hearing, worked as a floor layer for the William J. Zickell Co. (Zickell) for the last eighteen years. He installs all types of floors. He does not do ceilings or overhead work, but he does carry heavy materials on the job site. Ninety to ninety-five percent of his work is done at shoulder level or below.

Employee experienced problems with his right shoulder prior to August 21, 1990. In 1983, while building his house, he was on a ladder when a rung broke and he caught himself from falling with his right arm. He did not get any treatment and denied any problems thereafter. Employee was aware of a gradual onset of cracking and popping in his right shoulder that may have been present for a year prior to August 1990. This cracking and popping began irritating him and he consulted his personal physician, Dr. Robert Saitz, on July 13, 1990, regarding pain in his right shoulder, back, neck and left foot. An x-ray of employee's right shoulder was taken, but he received no treatment.

On August 21, 1990, employee, a foreman for Zickell, was working in a classroom at the Crestview School installing carpet. That morning, he realized they were running out of vinyl edging and asked Stan Huesgen to call the warehouse and order more. Huesgen called the warehouse around noon. The materials were not necessary for the completion of the work being done that day.

About 2:45 p.m. on August 21, 1990, employee was working in a classroom and observed Mark Files, who made deliveries for Zickell, in the outside hallway. He asked Files if he had the vinyl edging he had requested and Files replied "no." Files asked "who called?" and was told that Stan Huesgen had called and talked to George. Files responded "who's George?" Employee expressed his surprise that Files did not know George. Files then left the room to look for some men doing ceiling work for whom he had a delivery.

After Files left the room to look for the ceiling workers, Huesgen returned from the restroom. Employee told Huesgen that Files was there but did not have the materials for them and noted "you would think they would check the delivery tickets." Huesgen motioned to the door and Files stuck his head through the door opening and told employee "I had enough of your s___, you faggot." Employee replied "You're the faggot" and "I thought you were in charge of deliveries, I'll just get the materials myself." Files replied "then go get it." After some more shouting, Files appeared to leave but came back in and told employee "I've had enough of your s___, lets take it outside." Employee told Files "Get the f___ out, I've got work to do." Files came into the room and began pushing employee who stated "Mark, look at yourself" and "quit pushing." Files fell into claimant's chest, employee shoved him away and Files swung his right hand, hitting claimant in the cheek. At this point, employee hit Files in the face and got him in a headlock with his left arm around Files' head. Files then shoved employee into the wall. Claimant's right shoulder struck the wall, at which point he noted that the shoulder felt like it was out of joint and he could not lift his arm because of the pain. Files left immediately thereafter.

That evening, employee went to the St. Anthony Hospital's Emergency Room seeking treatment for continued pain in his right shoulder. He was advised to contact Kennerly Orthopedic Group if he had further problems. On August 22, 1990, employee checked a couple of job sites, picked up his tools and stopped working.

On August 24, 1990, employee consulted Dr. Lawrence Kriegshauser, M.D., an orthopedic surgeon, after being referred by Dr. Saitz. Employee told Dr. Kriegshauser that he worked as a floor layer which required him to carry a lot of heavy equipment on top of his shoulders and for at least the past year he had suffered chronic right shoulder pain that had grown increasingly worse over the several weeks prior to his visit. Further, he had suffered several shoulder injuries in the past including slipping on a ladder and catching himself, and that he had fallen off a scaffold the previous summer. Employee's main complaint was that he could not lift his arm above his shoulder for the last week. Employee did not tell Dr. Kriegshauser about any altercation or falling against the wall on August 21, 1990.

Dr. Kriegshauser arranged for employee to have an arthrogram, which indicated that employee had a torn right rotator cuff. Surgery to repair his rotator cuff was performed by Dr. Kriegshauser at St. Anthony's on August 30, 1990. Following the surgery, employee used a CPM machine to keep stiffness out of his arm and later received physical therapy.

Dr. Kriegshauser diagnosed employee as having chronic impingement syndrome, chronic tendinitis and bursitis, and chronic wear and tear of the rotator cuff which resulted in a partial tear that was gradually fraying. He stated that employee suffered a 15% permanent partial disability to the right shoulder; however, he could not attribute any part of that disability to any one specific incident he had secured in history from the patient. Dr. Kriegshauser thought it could be an overuse type phenomenon and opined that the rotator cuff ruptured a week or ten days before he examined employee on August 24, 1990. In Dr. Kriegshauser's opinion, the work activities were a substantial factor and cause of the resulting medical condition and disability. Dr. Kriegshauser noted the most likely cause of a rotator cuff tear is a traction injury where there is pulling on the arm and employee did not have to suffer major trauma to cause the complete tear. Dr. Kriegshauser concluded that the blunt blow suffered by employee would not have put the kind of pull on employee's shoulder muscles necessary to cause the torn rotator cuff.

On November 6, 1990, employee filed a Claim for Compensation alleging that he "was working laying carpet when he [was] attacked by another employee of the employer, one Mark Fines (sic), and [employee] was pushed to the wall, injuring his [right] shoulder."

Dr. Kriegshauser released employee to return to work without restrictions on January 1, 1991, and saw employee for a final evaluation on February 5, 1991, when it was noted that employee was back at work, had regained full motion in his shoulder and had excellent strength.

On August 4, 1992, a First Amended Claim for Compensation was filed and stated "employee [was] laying carpet in classroom on behalf of employer when he was suddenly and unexpectedly attacked by a fellow employee without provocation by [employee], and while attempting to block punches, employee was pushed back into a blackboard on the wall injuring his right shoulder and upper right back." Employee's amended claim also included a claim against the Second Injury Fund.

On April 6, 1995, employee filed a Second Amended Claim for Compensation, which alleged a date of accident/incident of occupational disease as "August 21, 1990",...