Messex v. Sachs Elec. Co., s. 74005

• Court: Missouri Court of Appeals
• Writing for the Court: KENT E. KAROHL; ROBERT G. DOWD, Jr., C.J. and ROBERT E. CRIST
• Citation: Messex v. Sachs Elec. Co., 989 S.W.2d 206 (Mo. App. 1999)
• Decision Date: 16 March 1999
• Docket Number: Nos. 74005,74010,s. 74005
• Parties: James MESSEX, Claimant/Respondent, Cross-Appellant, v. SACHS ELECTRIC COMPANY and Fireman's Fund Insurance Company, Employer/Insurer, Appellants, v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Respondent, Cross-Respondent.

Page 206

989 S.W.2d 206

James MESSEX, Claimant/Respondent, Cross-Appellant, v. SACHS ELECTRIC COMPANY and Fireman's Fund Insurance Company, Employer/Insurer, Appellants, v. Treasurer of the State of Missouri, as Custodian of the

Second Injury Fund, Respondent, Cross-Respondent.

Nos. 74005, 74010.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 16, 1999.

Robert W. Frayne, Bren, Przybeck & Stotler, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Karla O. Boresi, Asst. Atty Gen., St. Louis, for respondent/cross-respondent.

James A. Fox, Fox & Vuylsteke, St. Louis, for respondent/cross-appellant.

KENT E. KAROHL, Judge.

We have consolidated appeals of the employer and insurer with the appeal of claimant-employee (Claimant) from a final award of the Labor and Industrial Relations Commission (Commission) in a workers' compensation case. Claimant alleged an occupational disease, repetitive trauma injury that occurred in late 1992. On March 28, 1997 the Administrative Law Judge (ALJ) granted Claimant an award against employer and insurer for 17.5% permanent-partial disability of the low back and against the Second Injury Fund (Fund) for permanent-total disability benefits. On February 2, 1998 the Commission, reviewing the award of the ALJ, entered a final award finding employer and insurer liable for 75% permanent-partial disability to the low back and no liability of the Fund. We affirm the Commission's award and find no Fund liability.

The employer and insurer appeal, arguing the Commission:

[E]rred as a matter of law, misapplied and misinterpreted § 287.220 R.S.Mo. as to the second injury fund liability under the recent case of Garibay v. The Treasurer of the State of Missouri as the Custodian of the Second Injury Fund, 964 S.W.2d 474 (Mo.App. E.D.1998) by requiring the employee's pre-existing condition to be manifest or known by the employer and holding that the pre-existing condition was not a hindrance or obstacle to employment prior to December, 1992.

Claimant argues the Commission erred, as a matter of law, in its determination that he was not permanently and totally disabled, contrary to the overwhelming weight of the evidence he could not compete on the open-labor market. Claimant adopts the same point presented by employer and insurer as his second point.

The Fund contends the denial of permanent-total disability should be affirmed because it is supported by competent and substantial evidence, particularly the self-professed abilities of Claimant and the testimony of Dr. Ashby and Donna Abram. Secondly, it submits there is no evidence to support a finding Claimant had any existing disability at the time of the work-related back injury. The Fund argues:

[T]he undisputed evidence is that the physical labor required of Messex by Sachs at the end of 1992 caused Messex's asymptomatic degenerative back condition to escalate to the point of disability. Under Missouri's Workers' Compensation law, the employer is responsible for all this disability.

It does not contest the fact that at the time of the injury, Claimant had a preexisting degenerative disc disease. There is no dispute that the disease was not symptomatic and Claimant had no knowledge of the condition.

Facts

The evidence supports finding the following facts. At the time of the hearing, Claimant was a fifty-six-year-old male living in Sullivan, Missouri. He completed ninth grade and obtained a GED in the Air Force, where he also learned to take care of airplane parts. His civilian employment included working as a parts person, operating machinery and labor work for various companies. Sachs Electric employed Claimant as a backhoe/heavy equipment operator for twelve years. He also operated bucket trucks, digger trucks and small cranes. He performed some manual labor, digging ditches, laying pipe and pulling wire. He frequently engaged in bending, stooping, squatting, standing, climbing and crawling. He commonly lifted weights over fifty pounds and operated a ninety-pound jackhammer.

Claimant was injured in late 1992. He had no previous back injuries. Prior to this injury, he never missed work due to injury or suffered any kind of on-the-job injury. In the three-month period immediately before the injury, he worked ten to sixteen hour days, up to seven days a week. On December 9, 1992 he first complained of back pain to a doctor. By the end of December 1992 after the period of intensified labor came to an end, he experienced soreness and left leg pain. He did not work for two months following discovery of the injury. He then returned to work without medical restriction for one and one half months. He last worked on April 19, 1993. He testified that since he quit working, he has not noticed any improvement and, in fact, believes his condition has worsened.

Claimant offered hospital medical records of Dr. Fitzgerald, two depositions of Dr. Musich, deposition testimony of Dr. Bernstein and deposition testimony of Dr. Ashby. Employer and insurer offered the deposition testimony of Jeannine Klein, a claim's supervisor for Fireman's Fund Insurance, the records of Ellis and Associates, Inc. prepared by Donna Abram and the hearing testimony of Abram.

Dr. Fitzgerald originally treated Claimant. Dr. Kenney examined and medicated him. Dr. Kenney advised that if the leg became too bad, an operation was possible but it would not produce long-term results. Claimant's back did not improve. Prior to 1992, Claimant also consulted a chiropractor less than ten times for treatment to his shoulders. He has had no medical treatment other than medication since June 1993.

Dr. Kenney diagnosed a diffused disc bulge. He indicated that surgical decompression at L4-5 could be considered, but recommended against it. He prescribed a lumbar support. Dr. Ashby testified Claimant had a moderate to severe degenerative disc disease in the lumbar spine. He felt there was a 50% probability that Claimant would require future surgery. He opined an impairment rating of 7% due to the degenerative process aggravated to some degree by Claimant's work. He found the disability consistent with heavy work for sixteen hours a day, seven days a week for a three-month period, which potentially exacerbated Claimant's degenerative disc disease and caused it to become symptomatic.

Dr. Musich testified he examined Claimant in May 1995. He found Claimant permanently and totally disabled. His low back pain was the result of overuse produced by his employment labors. He felt the heavy work was a substantial factor and the cause of his present condition referable to his low-back and lower extremity complaints. He found there was no disability referable to the back or lower extremity prior to late 1992.

Dr. Bernstein, a psychologist and vocational expert testified Claimant had been working as a heavy equipment operator for twenty-five years and had "not acquired any transferable skills." He concluded Claimant was unable to perform sedentary work as defined in the U.S. Bureau of Labor Guidelines due to his numerous restrictions; particularly, limitations in work requirements in terms of sitting, standing, walking, bending, and lifting more than twenty-five pounds. Dr. Bernstein concluded that, considering age, lack of transferable skills and physical impairment, "claimant was unemployable in the open labor market."

Donna Abram, a rehabilitation coordinator, assessed Claimant for employer and insurer. She never examined him personally. She based her opinion on Claimant's deposition, medical reports and Dr. Bernstein's report. She also reviewed the injury form and claim for compensation. She admitted a disadvantage because she did not personally examine Claimant. However, she testified that she was still able to perform an adequate assessment. Abram disagreed with Dr. Bernstein's conclusion that Claimant could not compete in the open labor market. However, she did not know what testing protocols Dr. Bernstein implemented, how he scored and what norms he compared to Claimant. She testified that she would have administered certain other tests to Claimant in order to consider an ability to transfer his skills, particularly clerical abilities. She concluded Claimant is employable. Her opinion was based upon a survey of available jobs, without contacting potential employers, and Claimant's demonstration that he can communicate, control machinery, has common sense understanding, math ability and can compute ratios, rates and percentages. She testified Claimant could perform sedentary work and some light duties if an employer will accommodate under the ADA.

Award of Permanent-Partial Disability

We first address the issue regarding the nature and extent of Claimant's disability. Employer and insurer do not appeal Claimant's award of 75% permanent-partial disability to his low back as a separate issue. They request alternative relief in the form of an award against the Fund for a portion of permanent-partial or permanent-total disability, or a remand for reconsideration by the Commission in light of the Garibay decision. ¹ Claimant seeks an award for permanent-total disability, a portion to be paid by the Fund in accord with Garibay. The Fund seeks to affirm the Commission's award.

We review the Commission's decisions on questions of law de novo. Davis v. Research Medical Center, 903 S.W.2d 557, 560 (Mo.App. W.D.1995). We review factual issues to determine if there is substantial evidence to support the Commission's award or, in the alternative, whether the award is clearly contrary to the overwhelming weight of the evidence. Cook v. Sunnen Products Corp., 937 S.W.2d 221, 224 (Mo.App. E.D.1996). We will consider all of the evidence in the light most favorable to the Commission's findings to determine if the findings are supported by the evidence. Lawson v. Emerson Elec. Co., 833 S.W.2d 467, 471 (Mo.App. S.D.1992).

Claimant argues that pursuant to ...