Nelson v. Consolidated Housing Development and Management Co., Inc., 15367

• Decision Date: 16 May 1988
• Docket Number: No. 15367,15367
• Citation: 750 S.W.2d 144
• Parties: Oscar NELSON, Claimant-Respondent, v. CONSOLIDATED HOUSING DEVELOPMENT AND MANAGEMENT COMPANY, INC., Employer-Appellant.
• Court: Missouri Court of Appeals

Page 144

750 S.W.2d 144

Oscar NELSON, Claimant-Respondent, v. CONSOLIDATED HOUSING DEVELOPMENT AND MANAGEMENT COMPANY INC., Employer-Appellant.

No. 15367.

Missouri Court of Appeals,

Southern District,

Division One.

May 16, 1988.

Lawrence H. Rost, New Madrid, for claimant-respondent.

Jeffrey S. Gavin, Poplar Bluff, for employer-appellant.

GREENE, Presiding Judge.

Consolidated Housing Development and Management Company, Inc. (Consolidated), employer, appeals from a decision by the Missouri Labor and Industrial Relations Commission (Commission) affirming the award of an Administrative Law Judge in favor of claimant, Oscar Nelson (Nelson). We affirm.

On August 21, 1981, Nelson was injured in an on-the-job accident, and filed a claim for worker's compensation. The claim, after an unexplained delay, was heard by an Administrative Law Judge on April 22, 1986. After hearing evidence, the Administrative Law Judge made findings of fact and conclusions of law, and awarded Nelson 1) permanent partial disability benefits in the sum of $104.40 a week for 100 weeks, representing a permanent disability rating of 25 percent of the body as a whole; 2) temporary total disability benefits in the sum of $174.00 a week for a period of 19 1/7 weeks; ¹ 3) medical aid in the amount of $1,456.70, with a credit to the employer of $1,095 previously paid, and 4) 8 percent per annum interest from the date of the award until paid on any past due compensation.

Consolidated filed an application for review with the Commission, which affirmed the award of the Administrative Law Judge.

Consolidated appeals, contending that there was not sufficient substantial and competent evidence to support the permanent partial disability award, and that the evidence only supported an award of no more than 9 weeks' temporary total disability.

Relevant facts not in dispute are that Nelson sustained an accidental injury on August 21, 1981, which arose out of and in the course of his employment with Consolidated; that Consolidated received proper notice of the accident; that Nelson's claim for compensation was timely filed; and, that Consolidated had furnished medical aid to Nelson in the sum of $1,281.60, but had paid no temporary total disability benefits.

Findings of fact made by the Administrative Law Judge, which the Commission found to be substantial and competent evidence to support the award, are as follows:

Sometime in 1977 or 1978, the Employee, Oscar Nelson, began working for Consolidated Housing Development [and] Management Company, a firm that owned and operated low-rent housing projects and facilities in New Madrid, Lilbourn, and Malden, Missouri. Originally, his duties for his Employer consisted of driving a tractor and spreading loads of dirt, but later, after the housing projects were completed, his duties evolved into general maintenance and repairs, e.g., mowing grass, cleaning, replacing windows, doorknobs, and the like.

Prior to his injury in 1981 at the Lilbourn Housing Project, the employee had no previous back injuries, (Dr. Thompson's narrative report of 2/21/83).

On Friday, August 21, 1981, Oscar Nelson was cutting weeds in a ditch located at the Employer's housing project in Lilbourn, Missouri, and was using a tool known as a Kizer Blade, weighing between four and six pounds. He used two hands to swing it, 'like [you're] holding a baseball bat', 'swinging it up over [your] head'. He had been cutting weeds about three or four hours that morning when he first experienced 'a sharp pain' in 'the upper part of my back', which recurred two or three times about thirty minutes apart. He continued to work until around 3:00 p.m., and that evening at home he experienced further pain in his right [sic] arm. The next morning, Saturday, 'it occurred again and knocked me to my knees and that's when they called the ambulance for me'. The pain was in the right shoulder 'because the nurses on [the] ambulance said they thought I had a stroke ...' Carlton Lewis 'picked me up and put me in the truck and called the ambulance.'

Oscar Nelson was thereupon taken to the Emergency Room at the Missouri Delta Community Hospital in Sikeston, Missouri, on August 22, 1981, where he was admitted for treatment of complaints of pain in his right shoulder and arm. He was given motrin, released, and told to rest (Emergency Room Report on 8-22-81).

Subsequently, on August 26, 1981, he returned to the same Emergency Room, complaining of more pain in the right shoulder and arm, and unable to turn his head to the right. He was given a soft collar to wear around his neck and his left arm was placed in a sling. (Emergency Room Report of 8-26-81).

Thereafter, Oscar Nelson was seen on August 28, 1981, by Dr. John C. Hackethorn, of Ferguson Medical Group, Sikeston, Missouri, whose impression it was that the employee had a radiculopathy from a cervical disc. He was tried on conservative therapy with heat and traction. (Hackethorn Report of 12-9-81.)

The employee was referred by Dr. Hackethorn to Dr. Robert C. Dunn, Jr., a neurological surgeon at the St. Louis University Medical Center in St. Louis, Missouri, on September 29, 1981, who could find no objective neurological deficits. Dr. Dunn continued the patient on conservative therapy. He returned to St. Louis on two other occasions to visit Dr. Dunn at the Medical Center.

Still complaining of pain in the right side of the neck, right arm, hand, leg, and in his lower back, the employee visited Dr. Thomas M. Thompson, a New Madrid chiropractic physician. Dr. Thompson's diagnosis was cervical strain and lumbar scoliosis (Dr. Thompson's report of 2-21-83). Oscar Nelson was treated by Dr. Thompson from November 24, 1981, to July 16, 1982, receiving thirty-five treatments consisting of spinal manipulation and physiotherapy. Results were mixed and at the conclusion of the treatments, Mr. Nelson's condition remained largely unchanged with the doctor concluding: 'He seems to have suffered injuries which may prove to be permanent.' (Dr. Thompson's report of 2-29-84). Dr. Thompson rated the employee at 25% of the man as a whole.

In the interim, the employee was requested by the Division of Vocational Rehabilitation to present himself to Dr David Y.S. Lee, of Neurologic Associates of Cape Girardeau, Inc. Accordingly, on January 9, 1982, Nelson, continuing to complain of back pain, was examined by Dr. Lee, who, acknowledging the patient's back pain with radiation down the right arm and right leg, stated that the neurologic examination suggests that the pain is 'probably of musculoskeletal origin.' (Dr. Lee's Report of 1-9-82).

Dr. Thompson returned the patient to light duty at the housing project on January 6, 1982, where he worked until he was terminated in August of 1982. At that time, he was still in pain, and to this date, he states he is 'still experiencing the same pain', 'can't even squat down and change the spare tire', when he gets up from watching television, 'it starts to hurt', and 'I just can't walk a block.'

....

As to the employee's permanent partial disability, the medical records contain the following diagnosis and impressions:

(1) Dr. Sever, in the 8-26-81 Missouri Delta Community Hospital medical report, diagnosed Employee's condition as cervical...