Orr v. City of Springfield

• Court: Missouri Court of Appeals
• Writing for the Court: James K. Prewitt
• Citation: Orr v. City of Springfield, 118 S.W.3d 215 (Mo. App. 2003)
• Decision Date: 23 September 2003
• Docket Number: No. 25375.,25375.
• Parties: Douglas ORR, Employee-Respondent, v. CITY OF SPRINGFIELD, Employer-Appellant.

118 S.W.3d 215

Douglas ORR, Employee-Respondent, v. CITY OF SPRINGFIELD, Employer-Appellant.

No. 25375.

Missouri Court of Appeals, Southern District, Division One.

September 23, 2003.

Petition for Rehearing and Transfer Denied October 16, 2003.

Application for Transfer Denied November 25, 2003.

Patrick J. Platter, Neale & Newman, L.L.P., Springfield, MO, for Appellant.

Richard D. Crites, Richard D. Crites & Associates, Springfield, MO, for Respondent.

JAMES K. PREWITT, Judge.

The City of Springfield ("Employer") appeals a decision by the Labor and Industrial Relations Commission ("Commission") affirming and incorporating an award of the Division of Workers' Compensation. In that award, the Administrative Law Judge ("ALJ") concluded that Employer was responsible for future medical treatment for the effects of injuries suffered by Douglas Orr ("Employee") and that Employee sustained a permanent partial disability of twenty percent of the body as a whole.

Employer appeals only the portion of the decision awarding Employee future medical treatment. Employer contends that the Commission erred in admitting the testimony of Dr. Dennis Robinson because Employee violated § 287.210.3, RSMo 2000, by failing to produce a complete medical report at least seven days prior to Dr. Robinson's deposition testimony concerning the issue.

The primary purpose of Workers' Compensation law is to place responsibility on employers to cover losses suffered by their employees resulting from injuries arising out of and in the course of employment. Cochran v. Indus. Fuels & Resources, Inc., 995 S.W.2d 489, 492 (Mo. App.1999). The law should be interpreted broadly, so that its benefits will extend to the greatest number of employees. Id. Any questions as to the right of an employee to compensation are resolved in favor of the employee. Id.

In a review of a workers' compensation award, we review the findings of the Commission and not those of the ALJ. Williams v. City of Ava, 982 S.W.2d 307, 310 (Mo.App.1998). Where, as here, the Commission attaches and incorporates the ALJ's award, this Court considers the findings and conclusions of the Commission as including the ALJ's award. Cochran, 995 S.W.2d at 492. We will not disturb the award unless it is not supported by substantial evidence or is clearly contrary to the weight of the evidence. Lorenz v. Sweetheart Cup Co., Inc., 60 S.W.3d 677, 679 (Mo.App.2001).

We may not substitute our judgment on the weight of the evidence and the credibility of witnesses for that of the Commission, for those issues are within Commission's purview to determine. Williams, 982 S.W.2d at 310. However, Commission decisions that are interpretations or applications of law, rather than determinations of fact, are reviewed for correctness without deference to the Commission's judgment. Maxon v. Leggett & Platt, 9 S.W.3d 725, 729 (Mo.App.2000).

This court will modify, reverse, remand, or set aside an award by the Commission only if it acted without or in excess of its powers, the award was procured by fraud, findings of fact by Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award. Section 287.495, RSMo 2000. Our review involves a two-part analysis. Maxon, 9 S.W.3d at 729. First, we examine the record as a whole, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. Cochran, 995 S.W.2d at 494. If not, the Commission's award must be reversed. Id. If competent and substantial evidence supporting the award exists, we must then determine whether the Commission's findings and award are nevertheless clearly contrary to the overwhelming weight of the evidence contained in the record before the Commission. Maxon, 9 S.W.3d at 729.

The facts surrounding the injury are not disputed. On December 15, 1994, Employee, then a police officer for the City of Springfield, injured his lower back as he exited his patrol car. He reported the incident to Employer and four days later went to the emergency room due to increasing pain and was admitted for a one-night stay in the hospital.

Based on Employer's referral, Employee next saw Dr. Norbert Belz, the Director of the Center for Environmental and Occupational Health. Conservative therapy did not help, and Dr. Belz referred Employee to Dr. Courtney Whitlock, who performed a lumbar myelogram and post myelogram CT, which showed a herniated nucleus pulposus at L4-5. Dr. Whitlock performed surgery, specifically a laminectomy and disectomy at L4-5, on February 6, 1995. Following surgery, while still under the care of Dr. Belz, Employee underwent a course of physical therapy and a work hardening program; however, his back pain persisted and even became worse.

Employee last saw Dr. Belz on August 1, 1995. In a report dated that same day, Dr. Belz indicated that Employee remained "symptomatic and is deemed a high risk for reoccurrence if returned to his prior occupation as a police officer." Dr. Belz further noted that Employee "does persist with low back pain" and "[g]iven the persisting symptoms of low back pain and the stressors anticipated in his future employment, [Employee] agrees that police work is not is his best interest for the future." Dr. Belz recommended that Employee not perform police work that involved apprehension or arrest and that he only occasionally lift more than 40 pounds, could frequently lift 25 pounds, and "avoid far reach with forward flexion in excess of 20 degrees and a lateral twist." Dr. Belz found that Employee had achieved maximum medical improvement as of August 1, 1995, and had sustained a permanent partial disability of fifteen percent of the body as a whole. Dr. Belz made no mention in his report as to whether or not future medical treatment was necessary.

On October 19, 1995, also at the referral of Employer, Employee was examined by Dr. Terry Winkler, a physician affiliated with Ozark Rehabilitation Services. Dr. Winkler noted that Employee described his "pain as a constant radiating pain across the hips bilaterally." Driving and prolonged sitting or standing increased the pain. Employee informed Dr. Winkler that he took the prescription medication Lodine for the pain.

Dr. Winkler's restrictions were similar to those indicated by Dr. Belz. Dr. Winkler found Employee had decreased range of motion of the lumbar spine, with "decreased intersegmental movement at L4 and 5." Dr. Winkler described Employee's status as of October 19, 1995 as "post laminectomy and diskectomy for herniated disk." Dr. Winkler rated Employee's injury as a permanent partial disability of twenty percent of the body as a whole and indicated that Employee was at maximum medical improvement. No reference was made in Dr. Winkler's report to a need for future medical treatment.

Before and after the injury, Employee also saw Dr. Dennis Robinson, Employees' personal physician who practiced at the Marshfield Family Clinic, for various illnesses or injuries. Visits from 1995 through 2001 show diagnoses from Dr. Robinson of "back disorder nec and nos" and indicate Employee received cortisone shots and was prescribed muscle relaxers and pain medication, including Lodine, a nonsteroidal anti-inflammatory medicine for use on a regular basis, and Darvocet and other narcotic pain medications for more acute flare-ups. In 1995, Dr. Robinson referred Employee to Dr. Michael Clarke, an orthopedic surgeon, in 1997 to Dr. Bert Parks, a neurosurgeon, and in 1999, to a pain clinic, all in reference to Employee's continued pain in his lower back.

On April 23, 2001, a deposition was taken of Dr. Robinson. According to the record, Employee produced medical records covering five years of treatment from Dr. Robinson on April 16, 2001.

On three occasions during the direct examination of Dr. Robinson at the deposition, Employer objected to a question or Dr. Robinson's response to a question based on the information not having been provided to Employer seven days prior to the deposition. In the first instance, Employer objected to a question of Dr. Robinson as to whether Dr. Parks had performed an MRI. In the second instance, when Dr. Robinson was asked whether he had an opinion as to the cause of Employee's back pain for which Dr. Robinson had treated Employee since 1995, Employer objected on the basis that such an opinion had not been provided seven days prior to the deposition. Employer also objected when Dr. Robinson was asked his opinion on whether the back pain and treatments provided would "stop today or will it continue on." Employer again objected on the basis that such a conclusion was not provided seven days prior to the deposition.

Dr. Robinson's answer to the third question was that he "would be very surprised to find [Employee] improved. He will continue to have back problems and I would imagine that based upon my experience with other patients that later on down the road he would be a candidate for some fusion surgery." Employer "move[d] to strike the reference to surgery on the basis it [was] not couched in terms of reasonable certainty or probability and it [was] past the scope of the doctor's visits."

At the start of the hearing held on April 24, 2001, as the exhibits were being discussed, the ALJ inquired as to whether there were any foundational objections to the exhibits. Employer indicated that it had none, but that with respect to Dr. Robinson's deposition, it had "made various objections in the text of the transcript, and we would ask that those be taken with the case when the Division has that under advisement." The AlJ noted that the objections would be reserved.

Then the following exchange occurred.

[Counsel for Employee]: Judge, I would like the record also to note that the Commission has offered [Employer] an opportunity for...