Lammert v. Vess Beverages, Inc.

• Decision Date: 28 April 1998
• Docket Number: No. 72966,72966
• Parties: Edward LAMMERT, Claimant/Appellant, v. VESS BEVERAGES, INC., Employer/Respondent, and Treasurer Of The State Of Missouri, as Custodian of the Second Injury Fund, Additional Party/Respondent.
• Court: Missouri Court of Appeals

Page 720

968 S.W.2d 720

Edward LAMMERT, Claimant/Appellant, v. VESS BEVERAGES, INC., Employer/Respondent, and Treasurer Of The State Of Missouri, as Custodian of the Second Injury Fund, Additional Party/Respondent.

No. 72966.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 28, 1998.

LeRoy Crouther, Jr., Deborah B. Wafer, St. Louis, for appellant.

Michael F. Banahan, Evans & Dixon, Mary Anne Lindsey, St. Louis, for respondent Vess Beverages, Inc.

Woodie J. Curtis, Jr., Asst. Atty. Gen., St. Louis, for respondent Missouri State Treasurer.

CRANE, Presiding Judge.

In this workers' compensation case, claimant, Edward Lammert, appeals from the Labor and Industrial Relations Commission [Commission] award denying compensation for arthritis in both of his knees and denying relief from the Second Injury Fund. Claimant asserts that the Commission exceeded its powers in finding that he failed to prove a medical causal relationship between his work conditions and his arthritis because 1) the accident and causation were admitted as a result of the employer's failure to file a timely answer and 2) the Commission ignored medical testimony establishing causation and relied on invalid medical testimony. Claimant further asserts that the Commission erred in finding that there was insufficient evidence to establish claimant's knee disability on January 20, 1993 for purposes of Second Injury Fund liability. We affirm.

Factual Background

Claimant was employed by Vess Beverages, Inc. for thirty-three years as a delivery truck driver. While performing his delivery duties, claimant would jump on and off the trailer and testified that he felt the jumping put a strain on his knees. On January 20, 1993 while claimant was making a soda delivery in Illinois, he slipped and fell on some ice and landed on his left shoulder. Claimant also hit his left hip and left knee. He was taken to Barnes Hospital emergency room where he was diagnosed with a dislocated left shoulder and mild knee strain. The shoulder fracture was reduced and claimant was released. Claimant underwent a course of physical therapy and returned to his normal work duties in March of 1993. He retired in May of 1994.

Procedural History

On May 18, 1994 claimant filed a workers' compensation claim concerning the January 20, 1993 injury. Claimant alleged that on January 20, 1993 he injured his left shoulder, left hip, and left knee when he fell on some ice while making a delivery for employer. Claimant also made a claim against the Second Injury Fund alleging that he sustained injury to both knees as a result of multiple trauma over the preceding years. The claim was ultimately settled with employer for a lump sum in the amount of $10,932.31 based on a disability rating of 20% of the left shoulder. Claimant's Second Injury Fund claim was left open.

On October 26, 1994 claimant filed a second claim for compensation. In that claim he alleged that both of his knees sustained an occupational disease from the repeated trauma of jumping off the soda delivery trucks. Claimant also made a claim against the Second Injury Fund for permanent partial disability due to the 20% disability to his left shoulder from the January 20, 1993 injury. The Division of Workers' Compensation acknowledged receipt of claimant's claim on November 10, 1994. Employer did not file its answer until February 17, 1995. On January 27, 1997 the ALJ issued his award denying claimant's claim for compensation. In his findings of fact and conclusions of law, the ALJ found: "Claimant has failed to prove a medical causal relationship between his arthritis and his work conditions under the new statutory standards. The competent and substantial medical testimony in the record demonstrates that claimant's osteoarthritis was clearly not work related."

Also on January 27, 1997 the ALJ entered his award denying claimant's Second Injury Fund claim for the January 20, 1993 fall. In those findings of fact and conclusions of law, the ALJ found:

As of the date of claimant's injury on January 20, 1993, no one has given an opinion as to the extent of disability in claimant's knees. Claimant's knee problems are degenerative and progressive and there is insufficient evidence to establish the extent of claimant's knee disability on January 20, 1993. This is necessary in order to establish Second Injury Fund liability.

Claimant filed an Application for Review with the Industrial Commission. The Commission issued its Final Award Denying Compensation on both claims.

Discussion

When a workers' compensation claim is appealed, we review only questions of law. Section 287.495.1 RSMo (1994). We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute; that is, if the Commission acted 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 and substantial evidence to support the award. Id.; Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo. banc 1995).

We review decisions of the Commission which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo.App.1995). Findings of ultimate facts reached through application of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo.1965). Where the evidentiary facts are not disputed, the Commission's award becomes a question of law. Id.

Where decisions are based on determinations of fact, we review the whole record in the light most favorable to the decision. West, 804 S.W.2d at 744. We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Mann v. City of Pacific, 860 S.W.2d 12, 14 (Mo.App.1993). In the absence of fraud, the factual findings made by the Commission within its powers are conclusive and binding. Section 287.495.1.

For his first point claimant contends that the Commission exceeded its powers in finding that he failed to prove a medical causal relationship between his arthritis and his work conditions. Claimant argues that the accident and the causal relationship were admitted because the employer failed to file its answer within 15 days of the Division's acknowledgment of his claim, and the Commission relied upon medical testimony that was contrary to existing medical knowledge and ignored medical testimony regarding causation.

The employer and/or insurer must file an answer within fifteen days of the date that the Division of Workers' Compensation acknowledges receipt of the employee's claim for compensation. 8 C.S.R. 50-2.010(12); Jackson v. Midwest Youngstown Industries, 849 S.W.2d 709, 711 (Mo.App.1993). The Division acknowledged receipt of claimant's claim on November 10, 1994. However, employer did not file its answer until February 17, 1995 and thus did not meet the fifteen day deadline. If the employer and/or insurer fails to file an answer to a claim within the fifteen day period, the factual statements in the claim are deemed admitted. 8 C.S.R. 50-2.010(13), construed in Jackson, 849 S.W.2d at 711. See also, Lumbard-Bock v. Winchell's Donut Shop, 939 S.W.2d 456, 457 (Mo.App.1996). The failure to file a timely answer, however, cannot result in the admission of legal conclusions contained in the pleading. Lumbard-Bock, 939 S.W.2d at 457-58.

In Box 15 of his claim for compensation, claimant alleged "Working as a soda truck driver for thirty three years and both knees sustained occupational disease from the repeated trauma of jumping off the trucks." Because employer failed to file a timely answer, these facts as stated in employee's claim are deemed admitted.

However, the admission goes only to the facts alleged. There was no admission that claimant had suffered arthritis as a result of jumping off trucks, that arthritis was an occupational disease, that claimant suffered a "compensable" occupational disease or that the work was a substantial factor in causing the arthritis.

Section 287.067 of the 1993 amendments defines occupational disease as follows:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been forseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that...