Reese v. Gary & Roger Link Inc.

• Decision Date: 03 August 1999
• Citation: 5 S.W.3d 522
• Parties: (Mo.App. E.D. 1999) . Charles Reese, Claimant/Appellant, v. Gary & Roger Link, Inc., Employer/Respondent. Case Number: 74961 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

5 S.W.3d 522 (Mo.App. E.D. 1999)

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

Charles Reese, Claimant/Appellant, v. Gary & Roger Link, Inc., Employer/Respondent.

Case Number: 74961

Missouri Court of Appeals Eastern District

Handdown Date: 08/03/99

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Harry J. Nichols and Patrick L. Howe

Counsel for Respondent: Kent E. Duncan

Opinion Summary: Charles Reese sought Second Injury Fund compensation. The Labor and Industrial Relations Commission, pursuant to Section 286.090 RSMo (1997), affirmed the ALJ's award and decision denying him compensation. Reese alleged he was entitled to Second Injury Fund compensation because his work-related accident combined with previous disabilities to render him permanently and totally disabled.

AFFIRMED.

Division One holds: The evidence supported the Commission's findings and award because: the Commission's finding that Reese failed to produce sufficient credible evidence that his work-related injury resulted in the treated medical condition is not against the overwhelming weight of the evidence in that the Commission is the sole judge of the credibility of the witnesses and has sole discretion to determine the weight given to expert opinions; the Commission's findings of fact establish that Reese was not permanently and totally disabled; and Reese failed to establish a disability from a subsequent injury.

Opinion Author: James A. Pudlowski, Presiding Judge

Opinion Vote: AFFIRMED. Crandall and Ahrens, JJ., concur.

Opinion:

Charles Reese (Reese) appeals the Labor and Industrial Relations Commission's (Commission) decision denying him Second Injury Fund compensation. Reese settled his worker's compensation claim with Link Construction (Employer) and the sole issue was Second Injury Fund liability. Reese alleged he was entitled to Second Injury Fund compensation because the work-related accident combined with previous disabilities to render him permanently and totally disabled. Reese's claim was initially before an Administrative Law Judge (ALJ) who denied compensation from the Second Injury Fund finding that Reese: failed to present sufficient credible evidence that the reported accident resulted in the treated medical condition or alleged injury, failed to present credible medical evidence that the right knee surgery was work related, failed to prove permanent partial disability (PPD) resulting from the primary injury that would satisfy the statutory thresholds, failed to prove credible preexisting PPD levels from his prior injuries that would satisfy the statutory thresholds as his job history and admissions at trial brought into question his prior Workers' Compensation settlements, and failed to prove his prior injuries were hindrances or obstacles to employment. On August 5, 1998, the Commission reviewed the evidence, considered the whole record, and affirmed the ALJ's award and decision pursuant to Section 286.090 RSMo (1997) finding it was supported by competent and substantial evidence and made in accordance with the Missouri Workers' Compensation Act. We affirm.

The Commission affirmed pursuant to Section 286.090 RSMo (1997) and, therefore, we review in light of the ALJ's decision, which includes its findings of fact and conclusions of law. Maas v. Treasurer of State, 964 S.W.2d 541, 544 (Mo. App. E.D. 1998).

Reese settled his primary claim against Employer and upon claiming Second Injury Fund compensation, Reese and Second Injury Fund stipulated: Reese sustained an accident arising out of and in the course of employment on August 31, 1995; and that Employer paid Reese 27-3/7 weeks of compensation for the primary injury. Reese testified that prior to August 31, 1995, he was under no permanent work restrictions.

On August 31, 1995, Reese began working for Employer. After being employed for two hours, Reese injured his right knee while working in wet cement. Reese went to an emergency room on September 2, 1995, and complained of pain in his right knee. The hospital referred Reese to Dr. Forbes McMullin who recommended that Reese undergo arthroscopic surgery for further evaluation of his injury.

On October 12, 1995, Dr. Richard Rende (Dr. Rende) began treating Reese's right knee. Dr. Rende testified that Reese complained of pain on the outside of his right knee. Dr. Rende further testified that he "felt that [Reese] was exaggerating his symptoms," there was no spasm, and that merely touching Reese's knee caused him to jump. Because of Reese's complaints of pain on the outside of his right knee, Dr. Rende performed arthroscopic surgery on November 22, 1995, to determine if there was a lateral meniscus tear. Dr. Rende testified that he cleaned up medial cartilage and some arthritis under the kneecap. However, Dr. Rende testified that these areas were not related to Reese's preoperative complaints. Dr. Rende testified that, contrary to Reese's complaints, the clean up was from prior surgeries and not related to the August 31, 1995 accident. When asked to explain Reese's preoperative complaints, Dr. Rende testified that he believed Reese "has been exaggerating his symptoms from the beginning." Dr. Rende stated that Reese had 5% PPD of the right knee and could return to non-construction work without restrictions. The Commission found Dr. Rende's testimony "well-qualified, cogent, and unimpeached."

Dr. James Felder (Dr. Felder) testified on Reese's behalf. On December 18, 1996, Dr. Felder examined Reese, reviewed the medical records, and found that the August 31, 1995 injury resulted in a tear of the posterior horn of the medial meniscus. Dr. Felder testified that the accident resulted in a 25% PPD of the right knee, and, based on Reese's prior and primary disabilities, he was permanently and totally disabled. Dr. Felder further testified that Reese was unemployable in the open, competitive labor market. The Commission found that Dr. Felder's testimony was "dubiously qualified...poorly founded...conclusory...confusing and inexact."

Reese's work history prior to this accident reveals a series of short terms of employment and multiple Workers' Compensation claims. In approximately seven of those Workers' Compensation claims, Reese admitted that he either injured himself on the first day of work or never returned to work after being released to do so by the treating physician. The Commission found that Reese's testimony on direct examination was incomplete, and that his tone was "argumentative and overly emphatic during both direct and cross examinations." The Commission also found Reese's testimony "unreliable and largely non-probative of the issues for trial."

The ALJ denied compensation from the Second Injury Fund finding that Reese: failed to present sufficient credible evidence that the reported accident resulted in the treated medical condition or alleged injury, failed to present credible medical evidence that the right knee surgery was work related, failed to prove PPD resulting from the primary...