Mathia v. Contract Freighters, Inc., 20410

• Citation: 929 S.W.2d 271
• Decision Date: 09 August 1996
• Docket Number: No. 20410,20410
• Parties: C.W. MATHIA, Claimant-Appellant, v. CONTRACT FREIGHTERS, INC., Employer-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 271

929 S.W.2d 271

C.W. MATHIA, Claimant-Appellant, v. CONTRACT FREIGHTERS, INC., Employer-Respondent.

No. 20410.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 9, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 3, 1996.

Larry J. Pitts, Ramsdell & Associates, Springfield, for claimant-appellant.

Raymond E. Whiteaker, Whiteaker & Wilson, P.C., John E. Price, Eric G. Jensen, Price, Fry & Robb, P.C., Springfield, for employer-respondent.

GARRISON, Judge.

C.W. Mathia ("Claimant") appeals from a final award of the Labor and Industrial Relations Commission ("Commission") which affirmed an award entered by the administrative law judge ("ALJ"). The award, entered in Claimant's workers' compensation claim, granted Claimant an 18% permanent partial disability to the body as a whole, but denied his claim for permanent total disability and for future medical benefits. We affirm in part and reverse in part.

Claimant is a high school graduate who previously worked as a meat cutter and maintenance worker for Hormel Packing Company. While working for Hormel, he injured his knee, resulting in two surgeries and a 25% permanent partial disability rating. Because of this injury and a broken ankle, he had difficulty working while standing on concrete floors and left that employment in March, 1983. He then returned to his family farm where he worked for a year or two while also doing some work as a mechanic. He later drove dump and asphalt trucks before becoming an over-the-road truck driver for Contract Freighters, Inc. ("CFI") in June, 1986.

On April 5, 1989, while employed by CFI, Claimant fell, striking his lower back and left side, while taking a shower in a truck terminal in Michigan. On April 12, 1989, CFI sent him to Dr. Michael Kutmas, D.O., who treated him with medication and bed rest for a "contusion left flank region/lumbar muscle area." Dr. Kutmas also referred Claimant to a urologist, Dr. Schoenfeld, and directed that he not work until further notice. On May 3, 1989, Dr. Kutmas reported that Claimant's condition was "resolving satisfactorily" and released him to return to work on May 8 with a restriction against loading trucks until May 22, when "he should be able to return to regular duties."

He continued to work until April 19, 1990, when he went back to Dr. Kutmas for what was described as "flank pain, 'severe' headache and urinary tract infection." Dr. Kutmas directed that Claimant was unable to work, and in the ensuing weeks prescribed physical therapy. He also referred Claimant to Dr. Schoenfeld again, whose diagnosis was "constant chronic prostatitis," and Dr. Toma, an orthopedist, who diagnosed a thoracic and lumbar sprain but found no evidence of a herniated disc or any condition which would require surgery. Dr. Toma also noted that Claimant's weight was 328 pounds and that he was in serious need of a "very aggressive weight loss program." ¹

In July, 1990, Dr. Toma referred Claimant to Dr. Dagen, D.O., a neurologist, who diagnosed a chronic lumbar and ligamentous sprain and muscular strain. He also made findings "indicative of nerve root dysfunction which may be inflammatory or compressive in etiology," but concluded that Claimant was not a candidate for an MRI due to his weight. ²

At the request of CFI, Claimant was examined by Dr. Shaddock, M.D., a neurosurgeon, on August 23, 1990, who diagnosed a left sacroiliac strain (ligamentous injury); bursitis with mild sciatic neuropathy; probable renal contusion; and a possible L4-5 disc herniation. Dr. Shaddock ordered an MRI which apparently was successfully performed and which failed to reveal a herniated disc or any problem which would necessitate surgery. He indicated that he expected the symptoms to diminish to some extent over a period of time. In his deposition, which was introduced at the hearing, Dr. Shaddock said that Claimant could not sit or stand for long periods of time, but "could do some form of work as long as it didn't involve straining his back."

In October, 1990, Dr. Toma again diagnosed Claimant as having a "possible herniated disc" and "exogenous obesity," and gave an opinion that he might continue to improve with weight loss. He also rated him as having a 10% impairment of the whole person based on the lumbar spine injury. In his deposition, Dr. Toma testified that as of October 20, 1990, he believed Claimant had reached maximum medical recovery and that no additional treatment other than weight loss would help him.

On October 16, 1990, Dr. Kutmas released Claimant from his care with a final diagnosis of chronic thoracolumbar muscle strain with radiculopathy in the left lower extremity, questionable herniated disc, and obesity. He also indicated that a disability rating was warranted and noted Dr. Toma's rating of 10% permanent partial disability.

In February, 1991, Claimant's attorneys sent him to Dr. Janie Vale, M.D., an occupational medicine specialist. Dr. Vale recommended that Claimant participate in a medically supervised weight reduction program noting that his weight (316 pounds) had contributed to difficulty in diagnosing his condition, such as the inability to obtain an MRI because of his size. ³ Her testimony indicated that weight reduction would be beneficial in obtaining accurate diagnostic studies as well as helping his symptoms. She also recommended a myelogram and CT scan, and gave her opinion that he had been unable to work as an over-the-road truck driver since "April/May of 1990," and that during that period he was "extremely limited" and probably not able to work in any other capacity. Dr. Vale also noted that Claimant had told her that he had been unable to work since shortly after his fall, but that his work as a truck driver for almost a year after that time was inconsistent with that history and would be significant in relating his back problems with the fall.

Claimant was hospitalized in November, 1991 with lower back pain, but a CT scan indicated there was no disc herniation. Dr. Shaddock diagnosed his condition at that time as a lumbar strain, mild left peroneal neuropathy, left sacroiliac strain, hypertension, and peripheral arthritis.

In June, 1992, Claimant underwent a myelogram and CT scan which was evaluated by Dr. Detwiler, M.D., a neurosurgeon. He concluded that Claimant had a multiple level bulging disc from L2-L3 to L5-S1, no evidence of nerve root swelling or compression, multi-level degenerative joint disease, and no evidence of significant stenosis of the spinal cord. He noted symptoms of back pain as well as other physical problems. While he recommended diagnostic studies, including a lumbar MRI, he opined that if the lumbar spine condition were Claimant's only problem, he would recommend continued conservative therapy, weight loss and the use of anti-inflammatory medication. He did not find any problem which would be benefited by surgery.

Claimant's attorneys also sent him to Dr. Andrew Myers, M.D., for an evaluation. Dr. Myers, an occupational and industrial medicine specialist, concluded that Claimant had symptoms compatible with a herniated disc even in the absence of definite radiologic findings. He stated, however, that no surgeon would undertake surgery until Claimant lost at least 100 pounds, which itself could considerably ease his symptoms. Dr. Myers stated that he believed that weight loss could produce "significant" reduction in the low back pain and symptoms. He concluded that Claimant had a 60-70% permanent partial disability of the body as a whole as a result of the fall. He also recommended that Claimant avoid strenuous and/or repetitive lifting, bending or twisting motions of the low back; prolonged walking, especially on uneven ground; prolonged posturing of the low back; and strenuous and/or repetitive stair climbing. In his deposition testimony, Dr. Myers said that it would be reasonable for Claimant to lift 15 to 20 pounds repeatedly, and 25 pounds occasionally, without any harm to himself. He also said that walking, sitting or standing were not contraindicated, but that it was up to Claimant to determine his limitations in those activities.

Wilbur Swearingin, a rehabilitation counselor, interviewed Claimant on March 16, 1992. Mr. Swearingin gave his opinion that, vocationally, Claimant was totally disabled, and that in his condition at that time, he was not employable in the competitive labor market. He said that Claimant has no transferable skills but does have some potential for retraining. He also acknowledged that Claimant's 25% permanent partial disability from his prior leg injury and his obesity contributed to his vocational disability.

The ALJ, whose award was adopted by the Commission, found that Claimant had an 18% permanent partial disability and awarded benefits based on that finding, but denied his claim for future medical treatment and permanent total disability. In doing so, the ALJ found:

Based upon all of the evidence presented in this case, I find that claimant is not permanently and totally disabled as a result of his accident at work. Claimant's accident at work apparently has resulted in a muscle strain and perhaps in bulging disks. His other problems including significant disability to the left leg, fractured ankle and jaw, hypertension, and exogenous obesity preexisted his injury at work and have combined with his current injury to create a greater disability than either the preexisting or the current disabilities were separately. That combination of disabilities is not the employer/self-insurer's responsibility. That is the responsibility of the Second Injury Fund under 287.220 RSMo. Claimant has already settled with the Second Injury Fund. If claimant is permanently and totally disabled (a finding that I do not make), it is a result of that combination of disabilities and not a result of his current injury.

In his first point, Claimant contends that the Commission's award was...