Kersey v. Autry Morlan, Inc.

• Decision Date: 10 January 2013
• Docket Number: No. SD 31883.,SD 31883.
• Citation: Kersey v. Autry Morlan, Inc., 388 S.W.3d 644 (Mo. App. 2013)
• Parties: Bert KERSEY, Claimant–Appellant, v. AUTRY MORLAN, INC., Employer–Respondent.
• Court: Missouri Court of Appeals

388 S.W.3d 644

Bert KERSEY, Claimant–Appellant,

v.AUTRY MORLAN, INC., Employer–Respondent.

No. SD 31883.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 10, 2013.

David M. Edwards of Cape Girardeau, MO, for Appellant.

Richard L. Montgomery, Jr. of Columbia, MO, for Respondent.

JEFFREY W. BATES, J.

Bert Kersey (Claimant) appeals from a final award entered by the Labor and Industrial Relations Commission (Commission)denying compensation on a claim he filed against his employer, Autry Morlan, Inc. (Employer). Claimant claimed that he suffered hearing loss and tinnitus as the result of an accident at work. The Commission denied compensation because it found that: (1) Claimant's hearing loss was not compensable; and (2) the accident was not the prevailing factor in causing his tinnitus. Claimant contends the Commission's decision denying compensation is not supported by sufficient evidence. We affirm.

I. Factual and Procedural Background

Claimant, born in April 1958, had worked as an auto mechanic or body repairman for numerous employers since the 1970s. In early 2006, Claimant began working for Employer in Sikeston, Missouri as an auto mechanic. Listening for the cause of engine noise was one of Claimant's duties.

On July 11, 2007, Claimant was investigating the cause of alternator noise in a customer's engine. To perform this task, Claimant used a mechanic's stethoscope to amplify the noise so it could be heard more clearly. As Claimant applied the stethoscope to the alternator, “something popped very loud inside of it.” Claimant's hearing was impaired by the loud noise, and he immediately reported the injury to Employer. Employer sent Claimant to Ferguson Medical Group for an evaluation, where he was examined that same day by Dr. S. Gordon Jones. Tests conducted on Claimant showed that he had “high frequency [hearing] loss.” During follow-up appointments through the end of July, Dr. Jones found that Claimant's hearing loss was improving, but he continued to “have some high frequency losses.”

On August 9, 2007, Claimant was examined by Dr. Troy Major at Southeast Missouri ENT Consultants in Cape Girardeau. Following an audiogram, Dr. Major diagnosed Claimant as having “[h]earing loss, neural” and “[u]nspecified tinnitus.” Dr. Major recommended hearing protection, and “upon approval from work comp ... hearing aids with Dr. Rebecca McDonald AUD.” Later that month, Dr. McDonald fitted Claimant with hearing aids for both ears.

In July 2008, Claimant returned to Dr. McDonald for follow-up testing. Additional tests showed no significant changes in Claimant's hearing loss from the prior year, and Claimant reported continued ringing in both ears.

In November 2008, Claimant was evaluated, at Employer's request, by Dr. Anthony Mikulec. Claimant reported a “long history of noise exposure working at various jobs mostly in the auto repair industry.” Claimant also reported exposure to noise from hunting (which ceased in 1989) and from riding a 900cc motorcycle two to three times a week when the weather permitted. Claimant complained of bilateral tinnitus since the July 11, 2007 incident. Dr. Mikulec performed audiometric tests and reviewed the prior audiograms performed by Dr. Jones.¹ Both tests showed that Claimant had bilateral high-frequency sensorineural hearing loss. Dr. Mikulec assessed Claimant's hearing loss by using the “ANSI reference standards according to Missouri Workers Compensation Rules[.]” ² Claimant's audiometric test resultsshowed that his hearing loss did not meet the minimum threshold for compensability:

Averaging the lowest responses to pure tone air conduction frequencies at 500, 1000, and 2000 Hertz, the average hearing level was calculated at 16.6 dB for the right ear and 10 dB for the left ear. Subtracting a correction factor of 5 dB for non-occupational hearing loss based on age in years greater than 40 years the corrected hearing level was calculated at 11.67 dB and 5 dB for both right and left ears respectively. Multiplying 1.5% hearing loss for each decibel loss above 26.0 dB ANSI reference standards according to Missouri Workers Compensation Rules, the percentage hearing loss was calculated at 0% for the right ear and 0% for the left ear.

Dr. Mikulec also evaluated Claimant's complaint of tinnitus. The doctor did not attribute Claimant's tinnitus to the July 11, 2007 incident. Dr. Mikulec explained that: (1) the exact cause of tinnitus is uncertain; and (2) persons exposed to high levels of industrial noise and trauma may or may not develop the condition.

In June 2009, Claimant filed a claim for compensation. In November 2010, Claimant underwent a medical examination by Dr. Annamaria Guidos at the Brain and NeuroSpine Clinic of Missouri. Claimant reported that he had hearing loss and ringing in both ears as a result of the July 11, 2007 incident. After conducting a physical examination and reviewing the medical records, Dr. Guidos opined that: (1) Claimant had bilateral sensorineural hearing loss and tinnitus; and (2) his persistent and constant tinnitus warranted a 15% body as a whole permanent disability rating.

In February 2011, a hearing was held before an administrative law judge (ALJ). All exhibits offered into evidence were admitted by agreement of the parties, and Claimant was the only witness to testify. Claimant testified that, without use of his hearing aids, he continued to have problems hearing. The hearing aids helped both his hearing loss and tinnitus. He requested continuation of the treatment he had been receiving and an award of permanent partial disability.

Thereafter, the ALJ issued a final award denying compensation. With respect to Claimant's tinnitus, the ALJ noted the absence of any opinion from Dr. Mikulec or Dr. Guidos that the July 11th incident was the prevailing factor in causing this medical condition:

Dr. Mikulec stated that the tinnitus “may” be of industrial cause. Although Dr. Guidos gave a rating of 15% permanent partial disability for constant and persistent tinnitus, she did not give a causation opinion. Based on all of the evidence presented, I find that Dr. Mikulec's opinion was more credible than Dr. Guidos on the issue of causation.

The ALJ found that the remaining issues of future medical care and permanent partial disability were moot. In a 2–1 decision, the Commission adopted the ALJ's findings and conclusions, and entered a final award denying compensation. This appeal followed.

II. Standard of Review

Because the Commission adopted the ALJ's findings and decision, we will review them in this appeal from the Commission'sfinal award denying compensation. Lacy v. Federal Mogul, 278 S.W.3d 691, 699 (Mo.App.2009); Birdsong v. Waste Management, 147 S.W.3d 132, 137 (Mo.App.2004). We review the Commission's decision to determine whether it is supported by competent and substantial evidence upon the whole record. Mo. Const. art. V, § 18; § 287.495.1 RSMo (2000)³; Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).⁴ The issue for us to decide is whether the Commission could have reasonably made its findings and reached its result after considering all the evidence before it. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012).

We defer to the Commission's factual findings and recognize that it is the Commission's function to determine credibility of witnesses and weight to be given to their testimony. Id.;Birdsong, 147 S.W.3d at 137. Conflicting medical theories present a credibility determination for the Commission to make. Lacy, 278 S.W.3d at 699. “[D]eciding which one of two conflicting medical theories it should accept is a determination particularly for the Commission. A determination of what weight it will accord expert testimony on matters relating to medical causation lies within the Commission's sole discretion and cannot be reviewed by this Court.” Aldridge v. Southern Missouri Gas Co., 131 S.W.3d 876, 882 (Mo.App.2004) (citation omitted). Therefore, the Commission's decision in this case as to which of the medical experts to believe is binding on this Court. Lacy, 278 S.W.3d at 699;see, e.g., Proffer v. Federal Mogul Corp., 341 S.W.3d 184, 187–88 (Mo.App.2011); Roberts v. Mo. Hwy. & Transp. Comm'n, 222 S.W.3d 322, 333–34 (Mo.App.2007). “Commission decisions that are interpretations or applications of law, on the other hand, are reviewed for correctness without deference to the Commission's judgment.” Birdsong, 147 S.W.3d at 138. We independently review questions of law. Johnson v. Denton Constr. Co., 911 S.W.2d 286, 287 (Mo. banc 1995).

III. Discussion and Decision

An employer must furnish compensation according to the provisions of Chapter 287 “for personal injury or death of the employee by accident arising out of and in the course of the employee's employment.” § 287.120.1. An “accident” is defined as “an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by the specific event during a single work shift.” § 287.020.2. An “injury” is defined as “an injury which has arisen out of and in the course of employment.” § 287.020.3(1). “An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.” Id. “The prevailing factor” is defined as “the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.” Id.

Claimant bore the burden of proving all essential elements of his claim. See Pruett v. Federal Mogul Corp., 365 S.W.3d 296, 304–05 (Mo.App.2012); Royal v. Advantica Restaurant Group, Inc., 194 S.W.3d 371, 376 (Mo.App.2006). Medical causation that is not a matter of common knowledge or experience must be established by scientific or medical evidence showing the relationship between the complained-of medical condition and the asserted cause of the...