Kauffman v. Tri-State Motor Transit Co.
| Decision Date | 11 August 2000 |
| Citation | 28 S.W.3d 369 |
| Parties | (Mo.App. S.D. 2000) David W. Kauffman, (deceased), Donna L. Kauffman, Claimant/Appellant v. Tri-State Motor Transit Company, Employer/Respondent. 23219 0 |
| Court | Missouri Court of Appeals |
Appeal From: Labor and Industrial Relations Commission
Counsel for Appellant: William J. Fleischaker
Counsel for Respondent: Ronald G. Sparlin
Opinion Summary: None
The issue in this workers' compensation case is whether the Labor and Industrial Relations Commission ("Commission") erred in refusing to consider the contents of a letter from a treating doctor to the claimant's attorney on the issue of causation. We affirm.
David W. Kauffman ("Employee") was employed as a truck driver with Tri-State Motor Transit Company ("Tri-State") beginning in September 1988, and some of the loads he apparently drove included radioactive material. He was diagnosed with leukemia in August 1992 and died April 9, 1993.
Employee's widow, Donna L. Kauffman ("Claimant") sought death benefits in a workers' compensation claim against Tri-State, contending that her husband's death was caused by exposure to the radioactive materials he transported as part of his work with Tri-State. The claim was tried before an associate administrative law judge ("ALJ") who issued an award finding that Employee's death was not work related and denying benefits. Claimant sought a review by the Commission which affirmed the award and decision of the ALJ denying compensation, incorporating the ALJ's award in its final award. Claimant appeals.
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). Where, as here, the Commission incorporates the ALJ's award and decision, we consider the findings and conclusions of the Commission as including the ALJ's award. Kaderly v. Race Bros. Farm Supply, 993 S.W.2d 512, 514 (Mo.App. S.D. 1999). Findings and awards of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the court and fall within the court's province of independent review and correction where erroneous. Leslie v. School Servs. and Leasing, Inc., 947 S.W.2d 97, 99 (Mo.App. W.D. 1997).
In Claimant's sole point on appeal, she contends that the Commission erred in failing to consider "an opinion on causation expressed by Employee's treating doctor in a letter to Employee's attorney." She contends that the Commission's exclusion of the letter as hearsay was error in that the letter was part of the treating doctor's medical records which were admissible as business records, and the fact that the letter was correspondence to the attorney "did not cause it to be excluded as a business record where the doctor was qualified to express the opinions in the letter and he would have been entitled to testify as to the matter in the letter were he present at the hearing."
The letter in question was from Dr. William Crosby ("Dr. Crosby"), one of Employee's treating doctors, in response to a letter from Employee's attorney.1 The attorney had written Dr. Crosby on October 28, 1992, saying:
I am proceeding forward with filing an occupational disease claim on behalf of [Employee]. We have established that during his period of employment with Tri-State he did, from time-to-time, drive trucks hauling radioactive materials. In order to pursue his claim I need to establish that he was exposed to the hazards of his current disease during the period of his employment. [Employee] states that during periods of time of his employment he did operate vehicles hauling radioactive waste. The precise nature and content of these loads is unknown at the present time. On behalf of [Employee], I am attempting to determine whether or not you can render a medical opinion that he was exposed to the hazards of the risk of his current disease as the result of driving transport units hauling the radioactive waste. I need to know what, if any, additional information you need pertaining to the type and frequency of loads of radioactive waste in order to make your determination or if this particular information is even necessary to make such a determination. In addition, I need to know whether or not there is a "threshold" level of exposure which needs to be established in order to establish that [Employee] was exposed to the risk of his current illness as the result of hauling radioactive waste. Please feel free to give me a call to discuss this in greater detail. In response, Dr. Crosby wrote Employee's attorney on November 5, 1992 saying:
[Employee] is a 40 year old truckdriver (sic) who was discovered on 04 September, 1992 to have chronic granulocytic leukemia (CGL). He was asymptomatic at the time; the elevated leukocyte count was discovered on a random blood test.
CGL is an uncommon disease. It is known to be caused by ionizing radiation (X-ray, gamma atomic energy). Individual susceptibility varies: at the same dose some people get CGL and some do not. Susceptibility is dose dependent: i.e., when the dose is higher more people get CGL; when the dose is lower fewer get CGL. It is believed that no dose is so low that it can be accepted as safe.
[Employee] has been hauling radioactive waste during his employment as a truckdriver (sic). The extent of his exposure to radiation is not known to me, e.g. how often he hauled a radioactive load, how radioactive the loads were, what was the kind of radioactivity; how many hours he was exposed each time, what protection against exposure was provided on the truck, how far from the source of radioactivity was [Employee] during the haul.
The amount of exposure to ionizing radiation can be accurately quantified by the worker's wearing on his shirt an exposure badge. These badges are collected and examined each month. A permanent record is made of the information in the badge. [Employee] has never worn a badge.These letters were offered in evidence before the ALJ, but were refused on the objection that they were not business records and were hearsay. The ALJ held, in her award, that C...
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Wagner-Jones v. Harbert Yeargin Const. Co., 26152.
...("ALJ"), this Court considers the findings and conclusions of the Commission as including the ALJ's award. Kauffman v. Tri-State Motor Transit Co., 28 S.W.3d 369, 370 (Mo. App.2000). We independently review any findings and awards of the Commission that clearly involve the interpretation or......