Houston v. Roadway Express, Inc.

• Decision Date: 31 March 2004
• Docket Number: No. 25849.,25849.
• Citation: 133 S.W.3d 173
• Parties: Geneva HOUSTON, Appellant, v. ROADWAY EXPRESS, INC., Employer, Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

133 S.W.3d 173

Geneva HOUSTON, Appellant, v. ROADWAY EXPRESS, INC., Employer, Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

No. 25849.

Missouri Court of Appeals, Southern District, Division Two.

March 31, 2004.

Motion for Rehearing and Transfer Denied April 22, 2004.

Application for Transfer Denied May 25, 2004.

John E. Price, Carnahan, Evans, Cantwell & Brown, P.C., Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Susan F. Colburn, Office of the Attorney General, Jefferson City, for respondent.

BEFORE THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

KENNETH W. SHRUM, Judge.

In this workers' compensation case, Geneva Houston ("Employee") appeals from the final award of the Labor and Industrial Relations Commission ("Commission") denying her claim against the Second Injury Fund ("Fund") for permanent total disability benefits. This court reverses and remands to Commission.

STANDARD OF REVIEW

When reviewing a worker's compensation award, appellate courts "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." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23[1] (Mo.banc 2003).

FACTS

Employee, born February 16, 1950, worked most of her adult life as a truck driver. She was driving a truck for Roadway Express ("Roadway") when she sustained an accidental injury to her right hip and knee on December 11, 1993. She was also working for Roadway on September 2, 1994, when she was diagnosed with an occupational disease, specifically bilateral carpal tunnel syndrome. No dispute exists about the fact that Employee's hip and knee injury and the carpal tunnel disease arose out of and occurred in the course and scope of her employment with Roadway.

Before her September 2, 1994, diagnosis of carpal tunnel disease, Employee had other medical problems and conditions, some job related and others nonjob related. Among those conditions were injuries to her left knee that required arthroscopic surgeries in 1982 and 1985, degenerative disc disease, degenerative changes in her upper and lower extremities, and fibromyalgia. The fibromyalgia diagnosis was made in May 1994 after Employee was hospitalized for Legionnaire's disease.

When Employee filed for benefits stemming from these incidents, she made a claim against the Treasurer of Missouri as Custodian of the Second Injury Fund ("Fund"). In an amended occupational disease claim filed on her behalf, Employee alleged, inter alia, that "as a result of all [Employee's] work-related injuries and other disabling conditions, [Employee] is totally disabled."

Employee's claim for benefits based on her occupational disease and her claim against the Fund were tried December 4, 2002. The only evidence presented at the hearing was Employee's testimony, her Husband's testimony, Dr. Janie R. Vale's testimony and reports, and Employee's lengthy medical records. The parties stipulated that Dr. Vale was "qualified to give expert testimony in regard to her speciality in occupational medicine."

The evidence established that, in December 1993, Employee was on a truck bumper when a gust of wind caught the truck hood and blew it upward. She was partially knocked off the bumper, and as a result, she twisted her right knee and "felt a pop in her right hip." She was off work due to this accident and injury until early 1994.

In the summer of 1994, Employee was again off work, this time for a nonwork-related condition, namely Legionnaire's disease, a pulmonary embolism, thrombophlebitis, and chronic obstructive pulmonary disease. She was hospitalized for approximately one month for these conditions, and missed work for these reasons until mid-August 1994.

When Employee returned to work, a previously noted hand pain worsened. Ultimately, a treating physician (Dr. Winkler) diagnosed her with bilateral carpal tunnel syndrome. She was treated surgically by Dr. Carla Garrison for the right hand problem on October 17, 1994, and the left hand condition on November 21, 1994.

After a recuperation period, Dr. Garrison released Employee to return to work "without limitations," effective February 6, 1995. Employee returned to Dr. Garrison on February 16, 1995, complaining of numbness and swelling in her hands "since going back to work." At that point, Dr. Garrison told Employee she might not be able to return to her usual job as a truck driver, but found she was "essentially symptom free prior to returning to work." Garrison did recommend she see Dr. Paff for upper extremity therapy.

When Employee saw Dr. Paff, he reported she was unable to work as of February 28, 1995, and put her through a therapy regimen. Following this, Dr. Paff released her to return to work on May 30, 1995, "with no limitations." Employee worked until July 1, 1995, whereon she quit and never returned. Employee testified she quit working because her hip, knee, and hands were so painful she could no longer continue.

Employee's lawyer referred her to Dr. Vale on August 20, 2001. After examining Employee and reviewing her medical records, Dr. Vale concluded that when Employee quit work in July 1995, she had reached "maximum medical improvement" both as to her hip condition and arms. She opined that Employee had sustained a 10% permanent partial disability of the body as a result of her December 11, 1993, work-related accident.¹ She testified that Employee's occupational disease (diagnosed September 2, 1994) left her with a 12% permanent partial impairment of her right upper extremity at the 175-week level, and a 10% permanent partial impairment of the left upper extremity at the 175-week level.

Dr. Vale also rated Employee's "vocationally-limiting impairments" as she found them to exist before the work-related incident of December 11, 1993. First, she found a "15% permanent partial disability to the left lower extremity at the 160 week/knee level."² Second, Dr. Vale found that "[d]egenerative disc disease of the lumbar sacral spine" resulted in a "7% permanent partial impairment of the total body." Third, she concluded that "[f]ibromyalgia and diffuse degenerative disc and arthritic changes of the spine and lower extremities diagnosed prior to carpal tunnel syndromes being diagnosed in September of 1994 [had caused] 10% permanent partial impairment of the total body."

Having thus evaluated and rated Employee's various work-related and nonwork-related disabilities, Dr. Vale's report concluded: "It is ... my further medical opinion that [Employee's] disability is greater than the simple additive sum of the various impairments noted above. The combined affect[sic] of [Employee's] spine and bilateral upper and lower extremity medical conditions have unfortunately resulted in her being permanently and totally disabled."

COMMISSION'S AWARD

In its award, the Commission found that "the occupational disease of September 2, 1994, caused [Employee] to sustain an injury to her left and right wrists." After noting that Dr. Vale had rated Employee's occupational disease-related disability at 10% permanent partial disability to the left wrist at the 175-week level, and 12% permanent partial disability to the right wrist at the same level, the Commission found that "these injuries combined to cause a greater disability due [to] involving both upper extremities." Consequently, the Commission ruled Employee's occupational disease had caused a permanent partial disability of 15% to her body as a whole, and ordered Roadway to pay benefits accordingly.

As to Employee's claim against the Fund, the Award read:

"Based upon Dr. Vale's testimony and the testimony of the employee and her husband, I find the employee had sustained prior permanent disability of 15% of the left knee at the 160 week level and a total of 17% of the body as a whole resulting from the degenerative disc disease, fibromyalgia, and arthritic changes of the spine and lower extremities. I further find that the ... Fund is liable for enhanced permanent partial disability of 7.5% of the body as a whole as a result of a combination of the employee's occupational disease incurred on or about September 2, 1994, and the employee's pre-existing work and nonwork-related conditions." (Emphasis supplied.)

Employee appeals from that part of the award entered against the Fund.³

DISCUSSION AND DECISION

Employee's two points on appeal raise essentially the same Commission error, namely that it erred in not finding she was permanently and totally disabled.

In Point I, Employee asserts that Commission's award against the Fund was based exclusively on "Dr. Vale's testimony and the testimony of the employee and her husband." Based on that premise, Employee cites Dr. Vale's testimony that Employee "was permanently and totally disabled due to the combination of [her medical conditions]" as mandating reversal. She insists that Commission's award of permanent partial disability was "inconsistent with Dr. Vale's opinion and inconsistent with the Commission's own findings."

Employee's second point maintains that, aside from what Commission said about relying on the testimony of Dr. Vale, Employee and Employee's husband, reversal is still mandated when all the evidence is reviewed. Specifically, Employee argues that there was no evidence that the combined effects of the 1993 accident, the 1994 illness, and Employee's preexisting conditions rendered her only partially permanently disabled as found by the Commission. Because of the similarity of the two arguments, we consider them together.

Before the Fund can be held liable for payment of benefits for permanent disability, the law requires that a permanent partial disability preexist the injury or occupational disease for which the employee claims benefits, and more than that, the preexisting partial disability must be of such seriousness as to...