Mell v. Biebel Bros., Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: Glenn A. Norton
• Citation: Mell v. Biebel Bros., Inc., 247 S.W.3d 26 (Mo. App. 2008)
• Decision Date: 04 March 2008
• Docket Number: No. ED 89404.,ED 89404.
• Parties: Daniel MELL, Appellant, v. BIEBEL BROTHERS, INC., Respondent/Cross Appellant, and Treasurer of the State of Missouri as Custodian of Second Injury Fund, Respondent.

247 S.W.3d 26

Daniel MELL, Appellant, v. BIEBEL BROTHERS, INC., Respondent/Cross Appellant, and Treasurer of the State of Missouri as Custodian of Second Injury Fund, Respondent.

No. ED 89404.

Missouri Court of Appeals, Eastern District, Division Three.

March 4, 2008.

Jagadeesh B. Mandava, Saint Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Attorney General, Tracey E. Cordia, Assistant Attorney General, Saint Louis, MO, for respondent for Second Injury Fund.

Mary Anne Lindsey, Timothy M. Tierney, Saint Louis, MO, for respondents/cross-appellants.

OPINION

GLENN A. NORTON, Judge.

In this consolidated appeal, Daniel Mell ("Claimant") seeks review of two Labor and Industrial Relations Commission ("Commission") decisions. The first decision affirmed the Administrative Law Judge's ("ALJ") award of permanent partial disability ("PPD") benefits from Biebel Brothers, Inc. ("Employer") and from the Second Injury Fund ("Fund") for an injury occurring on July 27, 2001. The second decision of the Commission affirmed in part the ALJ's award of PPD benefits from Employer and the Fund for an injury occurring on January 9, 2002, and also awarded future medical benefits from Employer.

The Employer has filed a cross-appeal seeking review of the Commission's decision to award future medical benefits from Employer. We affirm in part and reverse and remand in part.

I. BACKGROUND

Claimant, who was diagnosed with a learning disability early in his education, dropped out of school after completing ninth grade and began working for Employer as a roofer. In June 1999, approximately six years after he began working for Employer, Claimant injured his back ("First Injury"). He underwent surgery performed by Dr. Frank Petkovich, an orthopedic surgeon, and was able to return to work without any restrictions. Claimant settled the First Injury for 20% PPD of the body as a whole related to this injury.

Claimant sustained another back injury on July 27, 2001 ("Second Injury"), and returned to Dr. Petkovich for treatment. Claimant underwent a second surgery on his lower back. On November 26, 2001, he was released to his regular job duties, and on December 19, 2001, he was released from Dr. Petkovich's care without any restrictions.

Claimant sustained a third back injury on January 9, 2002 ("Third Injury"). Upon the recommendations of Dr. Petkovich and two other physicians, Claimant underwent a third surgery. Claimant attempted rehabilitation and pain management therapy. He was placed on restrictions from lifting more than 35 pounds, and from any repetitive bending, stooping, kneeling or squatting. He eventually decided to discontinue the prescribed medications, despite continuing to experience ongoing pain, weakness and stiffness in his low back. Claimant has not returned to work and has had to significantly limit his activities. Claimant needs to lie down several times a day to experience relief from his pain.

At the hearing before the ALJ, Dr. Petkovich opined that Claimant had a 23% PPD of the body as a whole related to the Third Injury, which was in addition to the previous ratings of 10% PPD Dr. Petkovich assigned following each of the two prior injuries. Claimant also offered the testimony of Dr. David Volarich, an osteopathic physician with a certification as an independent medical examiner. Dr. Volarich examined Claimant once prior to the ALJ hearing and assigned a 30% PPD of the body as a whole related to the Second Injury, and an additional 45% PPD of the body as a whole as a result of the Third Injury.

Mr. James England, a certified rehabilitation counselor, performed a vocational rehabilitation evaluation of Claimant. Mr. England stated that based solely on the restrictions provided by Dr. Petkovich, there would be some kinds of work available in the open labor market suitable for Claimant, including packing and assembly jobs. Mr. England, however, also considered the restrictions placed on Claimant by Dr. David Raskas and Dr. Volarich, as well as Claimant's academic records. Mr. England rendered the opinion that Claimant is unemployable due to a combination of his preexisting injuries, academic deficiencies and the Third Injury. Mr. England, however, also testified that additional training could improve Claimant's math and reading abilities, which in turn would improve his employability.

With respect to the Second Injury, the ALJ found that Claimant had a total of 45% PPD of the body as a whole, related to the low back. The ALJ deducted 20% PPD resulting from the First Injury and assigned 20% PPD to Employer and 5% PPD to the Fund. The ALJ found that Claimant was not entitled to future medical benefits.

With respect to the Third Injury, the ALJ found that Claimant had a total of 82.5% PPD of the body as a whole, related to the low back. The ALJ deducted the prior assessed disability of 45% and assigned 27.5% to the Employer and 10% to the Fund. The ALJ denied Claimant's request for future medical benefits.

Claimant filed an application for review with the Commission. The application requested review of the ALJ's determinations with respect to the extent of Claimant's disability. The application did not raise the issue of future medical benefits. The Commission affirmed both awards of the ALJ, except on the issue of future medical benefits. The Commission, sua sponte, determined that Claimant was entitled to future medical benefits. Claimant appealed. Employer filed a cross-appeal.

II. DISCUSSION

A. Standard of Review

We review the award of the Commission pursuant to Section 287.495 RSMo 2000.¹ We may modify, reverse, remand for hearing or set aside the award only on the grounds that: (1) the Commission acted without or in excess of its power; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient, competent evidence in the record to warrant the making of the award. Section 287.495.1; Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003).

We examine the entire record to determine if it contains sufficient, competent and substantial evidence to support the award. Hampton, 121 S.W.3d at 222-23. We will set aside the Commission's findings of fact and resulting award only if the award is contrary to the overwhelming weight of the evidence. Id.

B. Extent of Claimant's Disability

1. The Commission's Finding of Permanent and Partial Disability

In his first point on appeal, Claimant argues that the Commission erred in awarding PPD benefits because the evidence presented to the Commission supported a finding that following the Third Injury he was permanently and totally disabled.

Total disability is defined by statute as the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." Section 287.020.6. "Any employment" means any reasonable or normal employment or occupation. Reeves v. Midwestern Mortgage, 929 S.W.2d 293, 296 (Mo.App. E.D.1996), overruled on other grounds by Hampton, supra. The burden of establishing permanent total disability lies with the claimant. Schuster v. State, Division of Employment Security, 972 S.W.2d 377, 381 (Mo.App. E.D.1998).

We find that the Commission's determination of PPD is supported by the evidence. Claimant admits that none of the medical experts offered the opinion that he is totally disabled. Dr. Petkovich opined that Claimant sustained a 23% PPD of the body as a whole as a result of the Third Injury, which was in addition to the 10% PPD he assigned to each of the prior injuries. Dr. Petkovich testified that Claimant could return to light duty work within certain restrictions. Dr. Volarich gave the opinion that Claimant sustained a 45% PPD of the body as a whole as a result of the Third Injury. Dr. Volarich also rated Claimant at a 30% PPD as a result of the Second Injury, and a 25% PPD as a result of the First Injury. Dr. Volarich deferred to the opinion of a vocational expert on the issue of whether Claimant is employable in the open labor market. With respect to the ALJ's determination as to PPD, the Commission affirmed all findings and conclusions of the ALJ, including the ALJ's determination that the opinions of Dr. Petkovich were "more competent and persuasive" than those of Dr. Volarich. Where the opinions of the medical experts differ, the Commission may determine whose opinion is most credible. Kelley v. Banta & Stude Construction, 1 S.W.3d 43, 48 (Mo.App. E.D. 1999). Thus, in assessing the extent of Claimant's disability, it was within the Commission's discretion to rely on the opinion of Dr. Petkovich.

Although the Commission's finding of PPD was supported by the medical evidence, Claimant argues that Dr. Petkovich had no information regarding any of his potential transferable skills, academic records or prior work experience. Claimant argues that such information was relevant to a determination of whether he is partially or totally disabled, and therefore the Commission erred in giving undue weight to the testimony of Dr. Petkovich. Claimant presented evidence of his learning disability and academic deficiencies in the form of school records. Claimant argues that because of his learning disability and documented academic deficiencies, he is unable to perform most sedentary jobs, which require reading, writing and record-keeping skills. His physical restrictions prevent him from working in manual labor. Thus, he argues that his academic difficulties, combined with the limitations from his physical injuries, make him unemployable and render him totally disabled.

In asserting total disability, Claimant also relies on the testimony of Mr. England, who opined that the combination of Claimant's injuries and academic limitations rendered him unemployable. The Commission, however, found that Claimant failed to establish by competent and substantial evidence...