Kaderly v. Race Bros. Farm Supply, s. 22253

• Decision Date: 26 February 1999
• Docket Number: Nos. 22253,22273,s. 22253
• Citation: 993 S.W.2d 512
• Parties: Roy Dale KADERLY, Jr., Claimant-Appellant/ Cross-Respondent, v. RACE BROTHERS FARM SUPPLY, Employer-Respondent/Cross-Appellant, and Federated Mutual Insurance Company, Insurer-Respondent/CrossAppellant.
• Court: Missouri Court of Appeals

Page 512

993 S.W.2d 512

Roy Dale KADERLY, Jr., Claimant-Appellant/ Cross-Respondent, v. RACE BROTHERS FARM SUPPLY, Employer-Respondent/Cross-Appellant and Federated Mutual Insurance Company, Insurer-Respondent/CrossAppellant.

Nos. 22253, 22273.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 26, 1999.

Rehearing Denied March 19, 1999.

Cynthia R. Black, Marshfield, for Appellant.

Kenneth T. Walter, Mann, Walter, Weathers, Walter & Bishop, L.C., Springfield, for Respondent.

PHILLIP R. GARRISON, Chief Judge.

Roy Dale Kaderly, Jr. ("Employee") was employed as a "lead man" in the supply yard of Race Brothers Farm Supply, Inc. (Race Brothers Farm Supply, Inc. and its insurer, Federated Mutual Insurance Company, are collectively referred to as "Employer"). Employee's duties included loading and unloading supplies from trucks, loading customers' vehicles with purchased merchandise, and keeping track of inventory. Employee allegedly sustained injuries in an accident that occurred in the scope and course of his employment on September 21, 1992.

On the day of the accident, Employee was helping load some equipment into a customer's vehicle. A second customer pulled up in his pickup truck wanting assistance. Employee told the second customer to turn his pickup truck around and drive to another warehouse. Employee started to walk around the second customer's truck when it lunged forward and struck him. As a result of the accident, Employee claims to suffer from back pain migraine headaches, and increased depression.

The Administrative Law Judge (the "ALJ") who heard the case found, among other things, that Employee sustained an accident on September 21, 1992, when he was struck by a pickup truck driven by a customer of Employer; that the accident arose out of the course and scope of his employment; that the accident caused his current back injuries and headaches as well as an increase in his depression; that the accident resulted in a 30% permanent partial disability to his body as a whole; and that there is no need for future medical treatment to cure and relieve him of the effects of his injuries. The Labor and Industrial Relations Commission (the "Commission") reviewed the award of the ALJ pursuant to section 287.480 ¹ and modified the award and decision with respect to the following: It found that Employee's work related accident did not cause any increased depression and thus the accident resulted in only a 25% permanent partial disability to Employee's body as a whole. The Commission approved and affirmed the award and decision of the ALJ in all other respects and attached and incorporated it to its own decision. ² Both Employee and Employer appeal the Commission's decision. Those appeals are consolidated and discussed together in this opinion.

In reviewing a workers' compensation award, we review the findings of the Commission and not those of the ALJ. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 852 (Mo.App. S.D.1995). Here, the Commission's award attached and incorporated the ALJ's award and decision. We, therefore, consider the findings and conclusions of the Commission as including the ALJ's award. Brown v. Treasurer of the State, 795 S.W.2d 479, 482 (Mo.App. E.D.1990). We first examine the whole record, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the award, in order to determine if the record contains sufficient competent and substantial evidence to support the award. Walsh v. Treasurer of the State, 953 S.W.2d 632, 635 (Mo.App. S.D.1997); Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo.App. W.D.1995). If there is sufficient competent and substantial evidence to support the award, we then determine if the award is against the overwhelming weight of the evidence. Id.In our review, we are mindful that we may not substitute our judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission. Id.The Commission is free to disbelieve uncontradicted and unimpeached testimony. Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993). Its interpretation and application of the law, however, are not binding on this Court and fall within our realm of independent review and correction. Walsh, 953 S.W.2d at 635; Davis, 903 S.W.2d at 571.

Employee first contends that the Commission erred in its finding that the accident resulted in a 25% permanent partial disability as opposed to a permanent and total disability. He argues that such a finding is not supported by substantial and competent evidence and is contrary to the overwhelming weight of the evidence because seven experts who examined Employee support an award of permanent and total disability. Employer contends in one of its two points on appeal that the Commission erred in its finding that Employee sustained a permanent partial disability of 25% because the evidence shows that he sustained a permanent partial disability of no greater than 10%. Because both of these points address the same issue, they will be discussed together.

As noted earlier, this Court does not substitute its own judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission. Walsh, 953 S.W.2d at 635; Davis, 903 S.W.2d at 571. Dr. Ann Huycke of the Shealy Pain Clinic determined that Employee has a 31% permanent disability to the body as a whole and is permanently and totally disabled with respect to being able to return to any employment. Two other treating physicians at that clinic concurred with this conclusion. Dr. Jeffery Woodward, also a treating physician, determined that Employee showed only signs of nonorganic symptoms or "exaggerated symptoms," had reached maximum medical improvement, had no permanent impairment from the injury sustained on September 21, 1992, and should be released to full-time regular work with no restrictions. Those findings of Dr. Woodward were made in 1993. He was asked to reevaluate Employee in 1996. At that time, he gave Employee a permanent partial disability rating of 10% to the body as a whole, stating:

At the time of my first release of the patient in 1993, I firmly expected the patient to make gradual progress and gradual return to work and nonwork activities physically, and I expected his pain complaints to improve. After review of the patient in 1996, he continued to have significant pain complaints, and the [10%] impairment was provided for those chronic pain complaints.

The above evidence clearly supports an award of 25% permanent partial disability. Accordingly, we find no error in the Commission's finding, and both Employee and Employer's points with regard to the finding of 25% permanent partial disability are denied.

In his second point on this appeal, Employee contends that the Commission erred in finding that the accident on September 21, 1992, did not result in any increase to his already existing depression. It seems to be undisputed that Employee suffered from some type of depression prior to the accident and that he now suffers from chronic depression. The issue is whether the chronic depression is a result of the September 21, 1992, accident.

Dr. Harold A. Bauer, a general practitioner, testified by way of deposition that he saw Employee on September 7, 1990. At that time, Employee seemed to be suffering from reactional or situational depression due to a recent divorce. He again saw Employee on January 3, 1992. At that time, Employee complained of what Dr. Bauer referred to as occult or "not very obvious" depression. Specifically, Employee complained of insomnia, motivational problems, stress, and headaches. Employee told Dr. Bauer that he had tried to take Desyrel, an anti-depressant, before, but he did not tolerate the side-effects very well, so he discontinued its use. He also told Dr. Bauer that he had previously taken Prozac, another anti-depressant, for a period of three months and it had worked quite well. Dr. Bauer prescribed a one month supply of Prozac along with Doral, a drug to help Employee sleep. On March 12, 1992, Dr. Bauer prescribed a two-month supply of a drug called Xanax after talking with Employee by telephone. Dr. Bauer was unsure from his records why he prescribed Xanax, but testified that it could have been related to the stress headaches. He also prescribed additional medication to help Employee sleep. Employee telephoned Dr. Bauer again on April 7, 1992, at which time Dr. Bauer decided to continue Employee on Prozac for another two months and discontinue its use if Employee did not respond. On September 1, 1992, Employee saw Dr. Bauer and complained of insomnia during the prior two-week period. Dr. Bauer diagnosed Employee with a "depressive type of insomnia" and prescribed both Halcion and Xanax to help him sleep.

The deposition of Dr. C. Kevin Watt, an osteopathic family practitioner, indicates that he first saw Employee on January 4, 1991. At that time, Employee had some problems with "crying spells, difficulty sleeping, stress, father had recently died and recently divorced and had weight loss." Dr. Watt diagnosed Employee with situational depression and prescribed Desyrel. Dr. Watt saw Employee again on May 29, 1991, and his records indicate, "[Employee] ... complains of dreams with Desyrel, depression, not as much--- not as much as a problem. Still having increasing stress. Still not sleeping well. Has remarried wife and has decreased the stress." Dr. Watt did not continue Employee on Desyrel at that time. Dr. Watt again saw Employee on July 30, 1991. At that time, Employee's wife said that she had noticed changes in Employee without the Desyrel and Dr. Watt prescribed Prozac for approximately three months.

Dr. Thomas A. Blansett, a...