Kurbursky v. Indep. in-Home Servs., LLC

Decision Date11 July 2022
Docket Numbers. SD 37103,SD 37104 CONSOLIDATED
Citation648 S.W.3d 894
Parties Juanita KURBURSKY, Appellant/Respondent, v. INDEPENDENT IN-HOME SERVICES, LLC, Respondent/Cross-Appellant, Treasurer of the State of Missouri-Custodian 2nd Injury Fund, Respondent.
CourtMissouri Court of Appeals

Attorney for AppellantRonald D. Edelman, St. Louis, MO.

Attorney for RespondentSheila B. Skulborstad, Springfield, MO.

Attorney for Respondent/Cross AppellantRobert O. Musick, Springfield, MO.

MARY W. SHEFFIELD, P.J.

Juanita Kurbursky ("Claimant") appeals the Labor and Industrial Relations Commission's ("the Commission") final award denying permanent total disability benefits, past medical care liability, and future medical care liability and awarding permanent partial disability benefits on her workers’ compensation claim. Claimant raises six points on appeal. Points 1 through 3 challenge the Commission's denial of permanent total disability benefits. Point 4 argues the Commission misapplied the law in calculating Claimant's average weekly wage for permanent partial disability benefits by not basing it on the average number of hours per week required by the employer to classify an employee as a full-time or regular employee as required by section 287.250.3.1 Point 5 argues the Commission erred by denying liability for past medical care. Point 6 argues the Commission erred by denying liability for future medical care. Because the Commission failed to make essential findings of fact on the issue raised in point 4, we reverse and remand for the Commission to make factual findings on the "average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature" and the number of hours used by Employer to classify an employee as a "full-time or regular employee" and then recalculate Claimant's award for permanent partial disability benefits based on those findings. § 287.250.3. In all other respects, we affirm the decision of the Commission.

Background

Claimant was employed by Independent In-Home Services, LLC ("Employer") as a home healthcare worker beginning in January 2011.2 On August 15, 2012, Claimant was visiting the home of one of her patients when she hit her head on a canoe that was on top of a car in the patient's driveway, causing her to fall on her back. Claimant experienced pain in her head and back, lightheadedness, and a headache.

Following her fall, Claimant received both emergency and follow-up treatment. Dr. James L. Jordan ("Dr. Jordan") diagnosed Claimant with a cervical strain

, thoracic strain, lumbar strain, bilateral arm and forearm strains, and a left hip contusion and strain. He later reevaluated Claimant and determined she had reached maximum medical improvement ("MMI") for the symptoms of her work injury. Dr. Jordan determined that Claimant's injuries to her shoulder and lower back, both of which occurred weeks after her fall, were unrelated to her work injury.

Claimant received additional treatments with Dr. Glenn Kunkel ("Dr. Kunkel"), a pain management specialist. Dr. Kunkel ordered MRIs of Claimant's spine and administered steroid injections and radiofrequency thermocoagulation

. Claimant discontinued treatment with Dr. Kunkel and began treatment with her primary care physician.3 She testified she still experienced pain in her neck and back, resulting in headaches, memory loss, and difficulty sitting or standing for extended periods of time. She also complained of difficulty sleeping but provided no medical records supporting that claim.

Claimant filed a workers’ compensation claim for permanent partial disability benefits for the injuries to her head

, neck, back, arms, legs, hips, tailbone, and shoulders, and identified previous injuries to her right foot, left foot, left knee, right hand, and right knee. During the hearing on her claim, the Administrative Law Judge ("ALJ") reviewed Claimant's medical records, the depositions of two doctors and three expert vocational witnesses regarding the degree of Claimant's disability, the need for past medical care, and the need for future medical care.

Dr. Robert Poetz ("Dr. Poetz"), an expert witness for Claimant, opined that Claimant was permanently and totally disabled "as a result of the combination of the August 15, 2012 work-related injuries and her pre-existing conditions ... and will remain unemployable in the open labor market." According to Dr. Poetz, "[t]here is a twenty percent permanent/partial disability to the body as a whole measured at the head directly resultant from the August 15, 2012 work related injury. The combination of the present and prior disabilities results in a total which exceeds the simple sum by twenty percent." Dr. Poetz also believed Claimant was already at MMI and would need medical treatment and diagnostic testing in the future. Dr. Ted Lennard ("Dr. Lennard") opined Claimant was only permanently partially disabled from the work injury and was unlikely to benefit from additional treatment after her discharge by Dr. Jordan. The vocational experts, James England ("England"), Wilbur Swearingin ("Swearingin"), and Gary Weimholt ("Weimholt"), agreed that under Dr. Poetz restrictions, Claimant would be permanently and totally disabled, while under Dr. Lennard's restrictions Claimant would be capable of both obtaining and maintaining employment.

The ALJ awarded Claimant permanent partial disability benefits and additional temporary total disability benefits, but determined Claimant had not met her burden of proof to obtain benefits for past or future medical care, Second Injury Fund liability, or permanent total disability.4

The ALJ found Dr. Poetz's testimony that Claimant was unemployable in the open labor market not credible; that Dr. Poetz's disability ratings were substantially inflated; and that England's opinion was less than credible and was not persuasive on the issue of permanent and total disability. The ALJ also found Dr. Poetz lacked credibility because he vacillated between the causes of Claimant's permanent total disability, the existence, cause, and nature of Claimant's sleep problems, and the inability to explain which restrictions were imposed due to Claimant's preexisting injuries versus her work injury. The ALJ also determined that Dr. Poetz's restrictions were excessive and beyond those reasonably anticipated for Claimant on a permanent basis. The ALJ found the opinions of Weimholt and Swearingin were more persuasive than those of England and that Claimant was capable of competing for employment. He found England unpersuasive because England's opinion was based on and included substantial speculation regarding the effect of sleep deprivation and the impact daytime drowsiness would have on Claimant's employment prospects.

The Commission adopted and affirmed the ALJ's findings of fact and conclusions of law "to the extent that they [were] not inconsistent with" the final award. Specifically, the Commission "adopt[ed] and affirm[ed] the [ALJ's] conclusions on the issues of whether [Claimant's] August 15, 2012 primary injury was a compensable injury, past and future medical care, the nature and extent of [Claimant's] disability, and [Claimant's] maximum medical improvement date." The Commission modified Claimant's weekly compensation rate, temporary total disability benefits and Second Injury Fund liability. The Commission found Dr. Poetz's permanent partial disability ratings, and his opinions on the relationship between Claimant's primary and preexisting injuries were persuasive, but that Dr. Poetz's opinion on permanent total disability was not persuasive. The Commission applied a 20% multiplicity factor to the ALJ's permanent partial disability finding so that Claimant was entitled to an enhanced permanent partial disability benefit from the Second Injury Fund.5 The Commission also determined Claimant's permanent partial and temporary total disability benefits should be calculated based on a 30-hour full-time work week. Ultimately, the Commission concluded Employer was liable to Claimant for additional temporary total disability benefits and the Second Injury Fund was liable to Claimant for enhanced permanent partial disability benefits. The remainder of the ALJ's findings and award were undisturbed.

Claimant and Employer timely filed notices of appeal, but Employer does not raise any points of error in its brief.6 Claimant raises six points on appeal. For ease of analysis, we address some of Claimant's points together and out of order.

Standard of Review

We review all final decisions, findings, rules, and orders of the Commission to determine whether the Commission's award was supported by competent and substantial evidence upon the whole record. Annayeva v. SAB of TSD of City of St. Louis , 597 S.W.3d 196, 198 (Mo. banc 2020). We review the findings of the Commission rather than those of the ALJ, but where the Commission affirms and adopts the ALJ's findings and conclusions, we will review them as the Commission's own. Id. at 198 n.2.

Section 287.495 provides that we may only reverse the Commission where it acted without or in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to support the making of the award. Annayeva , 597 S.W.3d at 198. We defer to the Commission's credibility determinations and the weight given to conflicting evidence, but review the Commission's conclusions of law de novo. Greer v. SYSCO Food Servs. , 475 S.W.3d 655, 664 (Mo. banc 2015). "This Court is not bound by the commission's interpretation and application of the law, and no deference is afforded to those determinations." Id. (internal quotations and citation omitted). "Reversal on the basis that the Commission's award is unsupported by sufficient competent evidence or the evidence weighs overwhelmingly against the Commission's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT