Marmon v. City of Columbia

• Decision Date: 30 March 2004
• Docket Number: No. WD 62057.,WD 62057.
• Citation: 129 S.W.3d 921
• Parties: Helen MARMON, Respondent, v. CITY OF COLUMBIA; Appellant, Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

129 S.W.3d 921

Helen MARMON, Respondent, v. CITY OF COLUMBIA; Appellant, Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

No. WD 62057.

Missouri Court of Appeals, Western District.

March 30, 2004.

Richard L. Montgomery, Jr., Columbia, MO, for Appellant City of Columbia.

B. Michael Korte, St. Louis, MO, for Respondent Marmon.

Jeanne S. Velders, Attorney, Earl D. Krause, Co-Counsel, Jefferson City, MO, for Respondent State of Missouri.

Before SMART, P.J., ULRICH and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.

The City of Columbia (City) appeals from a final award of the Labor and Industrial Relations Commission finding that Helen Marmon sustained a permanent total disability, while working for the City, and was entitled to workers' compensation benefits. The City contends the award is against the overwhelming weight of the evidence and, therefore, is unsupported by substantial evidence. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

Marmon had been a part-time bus driver with the City of Columbia ("City") for approximately two months when she was injured in a vehicle accident on April 5, 1996. As part of her training, Marmon was standing behind the driver of a bus, who was showing her how to make a proper turn. The bus was struck by another vehicle, and Marmon fell forward into the dashboard and onto the floor. She was taken to a hospital and released the same day, after being diagnosed with a chest wall contusion and neck strain.

Marmon began experiencing back and hip pain within three days of the bus accident. The City referred her to Dr. Jennifer Clark, at the Columbia Orthopedic Group, for evaluation and treatment. At Dr. Clark's request, a spinal MRI was conducted on May 17, 1996. The results of the MRI were reported as "absolutely normal" and "negative for disc herniation." On June 24, 1996, Dr. Clark released Marmon to return to work with no restrictions. In her final report dated August 8, 1996, Dr. Clark concluded Marmon did not suffer a disability as a result of the bus accident.

Marmon briefly returned to her part-time driver duties but quit because the constant bus vibrations aggravated her back and hip discomfort. She began a new job as a substitute teacher with the Columbia Public School District on August 20, 1996. Marmon experienced pain in her back and left leg when she had to walk up and down the stairs or sit for prolonged periods at various schools. She requested additional medical treatment from the City and was referred back to Dr. Clark. Instead of contacting Dr. Clark, Marmon opted to seek treatment from her own physician, Dr. Kristen Malaker, in early September 1996. Marmon also filed a workers' compensation claim against the City and the Second Injury Fund on October 17, 1996.

After prescribing pain medication and physical therapy, Dr. Malaker sent Marmon to an orthopedic surgeon, Dr. Robert Gaines, because her chronic back pain persisted. Dr. Gaines ordered two spinal MRIs in March 1997, both of which showed mild degenerative changes but were reported as normal without evidence of a herniated disc.

A year later, Dr. Gaines referred Marmon to Dr. John Oro, a neurosurgeon, for further pain evaluation. Dr. Oro recommended another MRI, which was conducted on April 7, 1998. The radiologist reported a small herniation on the left side of the L4-5 disc.

Based on the MRI findings, Dr. Gaines performed surgery on June 23, 1998, to relieve pressure from the herniated disc. After removing the L4-5 disc, Dr. Gaines noted that a "fragment" of the disc tissue seemed to have been "prolapsing in and out" of the disc space. Dr. Gaines diagnosed Marmon with "herniated disc pulposa" on the hospital discharge summary.

Marmon's back pain worsened following surgery, causing her to quit her job as a substitute teacher. A morphine pump was implanted for pain management. The pump was later replaced with a morphine patch, which Marmon continued to use at the time of the October 25, 2001 hearing on her workers' compensation claim.

At the hearing, Marmon contended she suffered a disc herniation as a result of the bus accident, leaving her permanently and totally disabled. She presented deposition testimony from Dr. Oro and her retained experts: Dr. David Volarich, an osteopathic physician; and James England, a rehabilitation counselor. Marmon sought disability benefits, payment of her medical bills after being released by Dr. Clark, and future medical care benefits.

The City disputed Marmon's claim, relying on Dr. Clark's report that she suffered no disability from the bus accident and could return to work without restrictions by June 1996. The City's expert, Dr. James Coyle, a neurosurgeon, further testified by deposition that Marmon currently has a degenerative back condition that dates back to a 1988 work-related back injury, for which she received a workers' compensation award for a 15% whole body permanent disability. The Second Injury Fund presented deposition testimony from its expert, Dr. Joel Jeffries, an orthopedic surgeon, to dispute that Marmon's pre-existing injury contributed to her chronic back condition following the April 5, 1996 bus accident.

Following the workers' compensation hearing, the Administrative Law Judge (ALJ) found Marmon was 15% permanently disabled as a result of the low back injury she suffered in the bus accident. The ALJ concluded Marmon reached maximum medical improvement within a few months after the bus accident and prior to the time she was referred to Dr. Gaines for treatment in September 1996. Marmon was awarded sixty weeks of disability benefits at the stipulated rate of $200 per week, for a total award of $12,000. The ALJ denied the Second Injury Fund claim, as well as Marmon's claim for payment of medical bills she incurred and future medical care benefits.

At Marmon's request, the Labor and Industrial Relations Commission reviewed and modified the ALJ's decision. The Commission determined, with one member dissenting, that Marmon was permanently and totally disabled as a result of the April 5, 1996 bus accident. Marmon was awarded disability benefits of $200 per week for life and future medical care benefits for pain management. The Commission denied the claim for past medical bills because Marmon sought the treatment at her own expense, without conferring with Dr. Clark or informing the City about the surgery recommended by Dr. Gaines. While no express ruling was made regarding the Second Injury Fund, the Commission implicitly denied any claim against the Fund by holding the City solely liable for the benefits awarded.

The City appeals, contending there was no substantial evidence to support the Commission's finding of a total permanent disability resulting from the bus accident. The City also contends there was no substantial evidence to support the award of future medical care benefits.

STANDARD OF REVIEW

On an appeal from the Commission, this court will not disturb a final award unless the Commission acted without or beyond its power, the award is procured by fraud, the facts found do not support the award, or the award is not supported by sufficient competent evidence in the record. Section 287.495.1.¹ We examine the whole record to determine the sufficiency of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). If the award is contrary to the overwhelming weight of the evidence, it is not supported by substantial evidence and must be reversed. Id. at 223.

Discussion of Issues on Appeal

The City contends there was no substantial evidence to support the Commission's finding that Marmon was totally and permanently disabled as a result of the bus accident because the overwhelming weight of the evidence established that: (1) Marmon did not have a herniated disc and, therefore, had no need for the back surgery that ultimately resulted in her failed back syndrome; (2) Marmon was able to work as a substitute teacher for two years following the bus accident; and (3) Marmon's overall condition resulted from her pre-existing and subsequent disabilities unrelated to the bus accident. We review the entire record to determine whether the evidence was weighted against the award of benefits.

The Commission based its disability finding on the expert testimony of Dr. David Volarich and James England. After interviewing and examining Marmon and reviewing her medical records, Dr. Volarich diagnosed her with a herniated disc at the L4-5 level and failed back syndrome caused by scar tissue from the back surgery. He concluded the bus accident was a substantial contributing factor in both conditions. Dr. Volarich rated Marmon with a 50% permanent partial disability due to the "disc herniation at L4-5 ... that required surgical repair." He acknowledged Marmon had a 15% permanent partial disability from her prior back injury and, thus, concluded the two disabilities combined for a 65% permanent partial disability. Dr. Volarich opined Marmon would be totally disabled if a vocational assessment was unable to identify any jobs for which she was suitable.

James England conducted the vocational assessment. Based on Marmon's degree of back pain...