Ransburg v. Great Plains Drilling

• Decision Date: 11 January 2000
• Citation: 22 S.W.3d 726
• Parties: (Mo.App. W.D. 2000) . James Ransburg, Appellant, v. Great Plains Drilling, Respondent. WD56655 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

22 S.W.3d 726 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

James Ransburg, Appellant, v. Great Plains Drilling, Respondent.

WD56655

Missouri Court of Appeals Western District

Handdown Date: 01/11/2000

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Allan Fanning

Counsel for Respondent: Kip Kubin

Opinion Summary:

James Ransburg fell down a pier hole, landing on an air drill and injuring his back and neck. He appeals the decision of the Labor and Industrial Relations Commission finding him fifty-percent permanently and partially disabled.

AFFIRMED.

Court holds:

The Commission's award was supported by substantial evidence.

Opinion Author: Harold L. Lowenstein, Judge

Opinion Vote: Affirmed. Before: Presiding Judge Lowenstein, Judge Stith and Judge Riederer¹

Opinion:

FACTS

This appeal is brought from The Labor and Industrial Relations Commission decision affirming the award of the Administrative Law Judge in a workers' compensation case. The claimant, James Ransburg, is the appellant. His claim was for a permanent total disability award against his employer and the Second Injury Fund. The final award gave him a rating of fifty-percent permanent partial disability. The primary questions raised in this court concern the extent of Ransburg's disability, and the extent of the Second Injury Fund's liability for benefits. Due to the complicated nature of the facts and several dates involved, a chronology of the events and findings of facts may prove helpful to this court's analysis.

This claim was initially filed against the employer/insurer on November 1, 1993. The claim was then amended to add the Second Injury Fund as a party on October 19, 1994. "The Second Injury Fund is liable if 'previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability.'" Smith v. ConAgra, Inc., 949 S.W.2d 917, 920 (Mo. App. 1997). For reasons unknown and not clarified by appellant, appellant did not provide the Second Injury Fund notice of the medical experts' depositions as they were being taken, and the depositions were, therefore, excluded from evidence against the Second Injury Fund with one exception. The only evidence admitted against the Fund was the second deposition of Dr. Abella that took place on October 9, 1996, and the deposition of Michael Dreilling, employer/insurer's vocational expert.

Ransburg was injured on February 12, 1992, while working for Great Plains Drilling when he fell 15 feet down a pier hole and landed on an air drill, striking his back and neck. The employer/insurer has paid $32,139.02 in weekly benefits over a period of 76 weeks, as well as medical expenses of $56,139.02.

Immediately after the accident, the appellant was treated by Dr. Cochran, and then referred to Dr. Boylan at Rockhill Orthopedics. Dr. Boylan released appellant to return to work on June 13, 1992. He continued to work until he was in too much pain and eventually ceased working in December of 1992. Appellant has not been employed or performed any type of work since that time.

Appellant was later sent to Dr. Drisko, who treated the duration of his work injuries. Dr. Drisko ultimately performed low back surgery and a fusion in January of 1993, as well as a right rotator cuff surgery for shoulder pain in April of 1993. At some point after April of 1993, appellant went to his family physician, Dr. Abella, complaining of neck pain. Dr. Abella referred appellant to Dr. Schoolman, who later performed neck surgery.

Appellant testified that his past medical history included a back strain while operating a jackhammer in 1976, which resolved with no problems. This muscular injury was in Kansas and resulted in a rating of 10% to the body. He also testified to suffering a gunshot wound to his left side, with the bullet exiting near his armpit, also resolving with no problems. He additionally had fractured ribs in 1987.

Appellant testified that he receives Social Security disability benefits of $734.00 per month, and union pension benefits of $507.00 per month, all tax-free. Appellant testified that he had not tried to seek employment since December of 1992 and that he had no motivation to attempt to go back to work in a sedentary position and jeopardize the tax-free benefits he currently receives. He further testified that he dropped out of school in the 7th grade and has since worked as a driver, grocery store clerk, general laborer and a construction worker. He is over sixty years old. Additional facts will be supplied in the points relied on.

The summary of the extensive medical and vocational rehab evidence is as follows: Dr. Prostic, who examined appellant for the purpose of a rating, gave a percentage of permanent disability of 50% to the body as a whole (15% neck, 15% shoulder, 30% low back). He concluded the appellant was capable of sedentary work. Dr. Drisko opined permanent partial disability of 28-30% (10% right shoulder, 18-20% back), and also said appellant was capable of sedentary work. Dr. Abella, Ransburg's family physician, rated him as having 35% disability in the neck, 35% to lumbar spine, and 10% to right shoulder, and capable of sedentary work. Michael Dreiling, the employer and insurer's vocational rehab witness testified appellant was capable of sedentary, entry level work, such as light packing. Mary Titterington, Ransburg's vocational counselor felt he was permanently disabled.

The Commission found that appellant has a permanent partial disability of fifty percent (50%). It held the Second Injury Fund was not liable. In essence, appellant's basic claim on appeal is that the combination of appellant's accident on February 12, 1992, the noncompensable injuries noted above, and the previous Kansas Workers' Compensation claim in 1976 concerning his low back, result in permanent total disability of the appellant, rather than the 50% permanent partial disability award of the Commission.

STANDARD OF REVIEW

The standard of review is set forth in Davis v. Research Medical Ctr., 903 S.W.2d 557, 571 (Mo. App. 1995).

[T]he standard of review of an award of the Commission is as follows. The reviewing court may not substitute its judgment on the evidence for that of the Commission. The weight of the evidence and the credibility of witnesses are ultimately for the Commission. The court applies a two-step process designed to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it. In the first step, the court examines the whole record, 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. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence. In doing so, it takes into consideration the credibility determinations of the Commission and, if those determinations as to witnesses who gave live testimony before the ALJ are different than those made by the ALJ, it also considers the ALJ's credibility findings as well as the reasons, if any are given, why the Commission differed with those findings. Findings and awards of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the court and fall within the court's province of independent review and correction where erroneous. And, where the findings of ultimate fact are reached not by a process of natural reasoning from the facts alone, but rather by application of law, it is a conclusion of law and subject to reversal by the court.

In summary, there are two standards of review of awards from the Commission. The standard for questions of law allows the court to examine issues and make holdings as if it were the court of origin, while the standard for questions of fact requires the reviewing court to look at the evidence which supports the award and find whether there is sufficient and competent evidence to support it. If such evidence is found, it must then look at all of the evidence and determine if the award is plainly against the weight of that evidence. The Workers' Compensation Law should be broadly interpreted in a liberal manner in favor of the employee. However, the employee has the burden to prove all elements of his or her case to a reasonable probability. Cooper v. Medical Ctr. of Independence, 955 S.W.2d 570, 574 (Mo. App. 1997).

POINTS RELIED ON

I. EMPLOYER/INSURER LIABILITY

"Total disability" is defined by section 287.020.7, RSMo 1994, which states it "shall mean [the] inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." "To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition." Sifferman v. Sears, Roebuck & Co., 906 S.W.2d 823 (Mo. App. 1995) citing Massey v. Missouri Butcher & Cafe Supply, 890 S.W.2d 761, 763 (Mo. App. 1995).

Appellant's first three arguments challenge the substance and competence of the evidence relied upon by the Commission in determining appellant is only permanently partially disabled. Appellant argues that there were no specific findings by the...