Kizior v. Trans World Airlines

• Decision Date: 16 November 1999
• Citation: 5 S.W.3d 195
• Parties: (Mo.App. W.D. 1999) Stanley F. Kizior, Respondent, v. Trans World Airlines, Appellant, Second Injury Fund, Respondent. WD56677
• Court: Missouri Court of Appeals

5 S.W.3d 195 (Mo.App. W.D. 1999)

Stanley F. Kizior, Respondent, v. Trans World Airlines, Appellant, Second Injury Fund, Respondent.

WD56677

Missouri Court of Appeals Western District

11/16/99

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Thomas V. Clinkenbeard

Counsel for Respondent: Jerrold Kenter and Amy L. Glaser

Opinion Summary: Trans World Airlines appeals a decision of the Labor and Industrial Relations Commission awarding Stanley Kizior workers' compensation benefits for permanent and total disability. TWA contends that the Commission erred because it determined, in effect, that Kizior is one hundred and sixteen percent disabled, contradicting the maximum compensation payments allowable under section 287.190.

(1) The Commission did not err in awarding Kizior benefits for permanent and total disability where it correctly followed the prescribed method for determining TWA's liability under section 287.220.1, which is applicable in all cases of permanent disability where there has been a previous disability.

(2) The record, reviewed in the light most favorable to the award, contains competent and substantial evidence supporting the conclusion that Kizior was permanently and totally disabled.

Riederer, P.J., Smart and Ellis, JJ., concur.

PER CURIAM

Trans World Airlines ("TWA") appeals a decision of the Labor and Industrial Relations Commission ("Commission") awarding Stanley Kizior workers' compensation benefits for permanent and total disability. TWA contends that the Commission erred in determining TWA's liability under section 287.220, RSMo 1994¹, and the governing case law, because it determined, in effect, that Kizior is one hundred and sixteen percent disabled. TWA contends that this contradicts the maximum compensation payments allowable under section 287.190. TWA further argues that the Commission erred in awarding compensation based upon the testimony of Kizior's expert witness, Dr. P. Brent Koprivica, because that testimony does not meet the required standard of substantial and competent proof. Affirmed.Factual Background

At the time of the hearing, Kizior was fifty years old. He began working for TWA on August 5, 1969. On November 9, 1992, Kizior injured his back while lifting a 250-pound 747 shoring jack. He was medically retired from TWA on January 1, 1995.

The injury to Kizior's back was not the first. Kizior served in Vietnam with the United States Air Force as a crew chief, where he sustained three back injuries. His first injury occurred during a rocket shelling. He did not seek medical treatment. He was injured a second time while lifting sandbags. He saw a doctor who prescribed medication. Kizior was then struck in the back with shrapnel. Again, he did not seek medical treatment.

After his discharge from the Air Force, Kizior began work at TWA. In 1978, Kizior underwent his first right L5-S1 laminectomy and discectomy. That same year, Kizior experienced problems with his neck, which was diagnosed as C7 radiculopathy. The following year, Kizior was diagnosed with left carpal tunnel syndrome and underwent a surgical release. In 1987, Kizior injured his left hand while working on the forward wing of a Boeing 767 aircraft. The injury to his hand required surgery and resulted in Kizior filing his first workers' compensation claim, which was settled for twenty-two percent at the left wrist. Kizior is left-handed and continues to experience problems with numbness and his grip. In 1988, Kizior injured his back at work. He underwent a second laminectomy at L5-S1. He has also undergone three hernia operations with five fixes, prior to 1992.

After his injury of November 9, 1992, which he sustained while lifting a heavy shoring jack, Kizior was diagnosed with right S1 radiculopathy secondary to a recurrent L5-S1 herniated disc. On January 28, 1993, Kizior underwent surgery. His surgeon performed a hemilaminectomy and discectomy. Although the surgery relieved some of the pain that he experienced, Kizior continued to have difficulty. Although he returned to work after the surgery, his co-workers would not let him do any strenuous work. Kizior underwent additional surgery in April 1994. This time the doctor performed a laminectomy at L4-5, with the excision of extruded nucleus pulposis. When his doctor released him in November 1994, he did not return to work. On January 1, 1995, he was medically retired from TWA.

Kizior is physically limited. He cannot reach down to wash his feet and legs; he can lift only about fifteen pounds, walk two hundred feet, and drive for forty-five minutes. He is unable to mow his yard. He is unable to repair equipment around the house, and cannot engage in recreational activities such as fishing or hunting. Kizior takes naps throughout the day and sleeps about four hours per night. He has been diagnosed as narcoleptic and is taking medicine for that as well as for a heart condition. Kizior also takes a morphine substitute, Tylox, for pain and is still under medical treatment for pain management once a month at a hospital. He has been found to be totally disabled for Social Security purposes.

In August 1995, Kizior attempted to commit suicide by burning down his house while he was inside it. During a confrontation with the SWAT team that responded, Kizior fired a gun into the air. He was arrested and eventually pled guilty to using a firearm in an illegal manner. As part of his probation, he spent two weeks at a psychiatric hospital and is still under the care of a psychiatrist.

Kizior filed a timely claim for workers' compensation for the November 1992 injury. A hearing on the matter was held March 3, 1998. At that hearing, Kizior presented the deposition of P. Brent Koprivica, M.D. Dr. Koprivica, who has a master's degree in public health, practices occupational medicine. Dr. Koprivica performed a medical evaluation of Kizior on December 14, 1995. Dr. Koprivica opined that as a result of the November 9, 1992 injury alone, Kizior suffered a residual seventy percent permanent partial disability to the body as a whole. This means that if Kizior's prior conditions were totally isolated (or, in other words, if Kizior had started out whole on November 9, 1992) the injury, standing alone, would represent a seventy percent disability. Combining Kizior's prior injuries to the injury he suffered on November 9, 1992, Dr. Koprivica believed that Kizior was totally and permanently disabled. In forming his opinion, Dr. Koprivica looked at Kizior's prior disabilities, finding a twenty-five percent disability to the body as a whole as a result of two prior laminectomies, an eleven percent permanent partial disability to the body as a whole referable to a laminectomy at L5-S1, a ten percent disability to the body as a whole for a prior cervical injury with C7 ridiculopathy, and a twenty-five percent disability of the hand at the level of the wrist.

During cross-examination, Dr. Koprivica was asked about these numbers:

Q. All right. And again, if you assume all these underlying figures, then, based upon the numbers that you have expressed as to pre-existing disabilities, you're saying that this man has a combined disability of 183.78 weeks?

A. Prior to November 9, 1992? Yes.

Q. And would you also agree that you're just a fraction off 46 percent of the body as a whole when you talk about 183.78 weeks?

A. Yes.

Q. So, if you then proceed to tack on 70 percent referable to the 1992 injury, standing alone, would you agree you're essentially representing to this Court, then, this man is 116 percent disabled?

A. No, he's -- you can only be 100 percent disabled. But what I'm representing is that if I were to consider the sequela from his injury, in isolation, where he didn't have any of the prior disability, excluding those, that would have represented a 70 percent disability to the body as a whole. That's what the 70 percent realized. But when you take everything in conjunction, even though, if you add them up in isolation, they would be greater that 100 percent, you can only be 100 percent disabled.

Q. Well, if we hypothetically adhere to the philosophy that 100 percent is the maximum that anyone can be disabled, would you agree that the most you could attribute to any event occurring after the three prior disabilities that you've outlined, would be approximately 54 percent to the body as a whole?

A. If I take that as a hypothetical -- accept that hypothetically, yes. If you can only get to 100 percent, then that would be the difference between what existed before.

Mary Titterington, a vocational rehabilitation specialist, tested Kizior's vocational capabilities. Titterington testified that she believed that Kizior was not employable. She based her opinion on a number of factors including his chronic pain, lack of stamina, lack of emotional stability, and the combination of medication that he takes, particularly morphine.

TWA introduced the written opinion of Dr. Charles Clough into the record without supporting testimony. Dr. Clough opined that Kizior was permanently and partially disabled. He rated Kizior as having a twelve percent impairment of the whole man on the basis of multiple back operations, an additional ten percent impairment of the lower extremity and fifteen percent impairment of motor strength. Dr. Clough explained that this would amount to a thirty percent impairment of the lower extremity, equating to a twelve percent impairment of the whole man. Thus, in regard to total disability, Dr. Clough opined that Kizior had a twenty-three percent impairment.

The Administrative Law Judge ("ALJ") found that Kizior was permanently and partially disabled and that the November 9, 1992 injury resulted in an additional disability of thirty-five percent to his body as a whole. The ALJ did not find that Kizior was permanently and totally disabled because he found Kizior's proof "incomplete and predicated upon expert testimony...