Rupard v. Kiesendahl

• Decision Date: 05 August 2003
• Docket Number: No. WD 62101.,WD 62101.
• Parties: Joyce RUPARD, Respondent, v. John K. KIESENDAHL, DDS; State Farm Fire and Casualty Company, Appellants.
• Court: Missouri Court of Appeals

114 S.W.3d 389

Joyce RUPARD, Respondent, v. John K. KIESENDAHL, DDS; State Farm Fire and Casualty Company, Appellants.

No. WD 62101.

Missouri Court of Appeals, Western District.

August 5, 2003.

Rehearing Denied September 30, 2003.

Eric T. Swanson, Kansas City, MO, for appellant.

Jerrold Kenter, Kansas City, MO, for respondent.

Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.

ROBERT ULRICH, Judge.

John K. Kiesendahl, DDS and his insurer, State Farm Fire and Casualty Company (collectively "Employer") appeal the temporary/partial award of the Labor and Industrial Commission ("Commission") awarding workers' compensation benefits to Joyce Rupard ("Ms.Rupard") for neck, arm, and back injuries she allegedly sustained while working for Employer. Employer claims that the Commission erred in determining that Employee's claim was filed within the statute of limitations under section 287.430. The Commission's award is affirmed.

Factual and Procedural History

Ms. Rupard has been employed as a dental assistant for Employer since June 1972. Her duties as a dental assistant include assisting Employer with crown work, fillings, dentures, and adjustments. Ms. Rupard testified that she spends about ninety-five percent (95%) of her time at work acting as a dental assistant for Employer. The remaining five percent (5%) of Ms. Rupard's job consists of administrative duties such as answering the phone, scheduling appointments, and completing the bookwork, billing, and insurance.

As a dental assistant, Ms. Rupard is required to stand on the left side of a patient sitting in a dental chair. Employer positions patients in such a manner that they are barely reclining back in the chair. Ms. Rupard positions herself within inches of the patient's mouth so she can use a mouth suctioning device on the patient as well as ensure that the patient's cheek and tongue stay out of the way of Employer's instruments that he is using on the patient. She must assume an awkward stance in order to look inside the patient's mouth during the procedure which can last from forty-five minutes to an hour. Although, Ms. Rupard may intermittently leave the procedure to answer the phone or schedule an appointment, she must maintain the awkward position for sustained periods of time.

Ms. Rupard's physical problems began in 1984 with the onset of severe headaches. Her symptoms worsened with pain spreading to her neck and down her left arm. She experienced throbbing pain in the area of her left armpit. The pain continued to spread down her left arm and into the little and ring fingers of her left hand. Ms. Rupard began experiencing tingling and numbness in those fingers. She has sought medical treatment from various doctors and chiropractors since 1984. Ms. Rupard testified that she first told Employer that she believed her physical problems were work-related in 1985. Additionally, she testified that her primary care physician, Dr. Cynthia Glass, told her that her physical problems could be work related in 1991, 1992, or 1993. On October 16, 1996, Dr. Glass made a notation in Ms. Rupard's chart indicating that Ms. Rupard was suffering from neck pain which was aggravated by prolonged standing or leaning over patients at work. At that time, Dr. Glass diagnosed muscle spasm, cervical radiculopathy,¹ and a possible variant of thoracic outlet syndrome. An EMG study of the bilateral upper extremities was performed on June 28, 1999, and suggested an inactive left CY radiculopathy. On July 17, 2000, Ms. Rupard complained to Dr. Glass that her pain and the paresthesia² in her left arm had become progressively worse over the last two to three months. She also told Dr. Glass that her symptoms had become intolerable in the two-three days preceding her appointment. A MRI was performed on Ms. Rupard the same day and indicated loss of normal lordosis³ of the cervical spine with posterior osteophytes⁴ at the C5-6 and C6-7 levels with cord compression at C5-6 level. Dr. Glass referred Ms. Rupard to Dr. Frank Coufal, a neurosurgeon. On October 4, 2000, Dr. Coufal diagnosed C5-6 kyphotic⁵ deformity as the likely cause of Ms. Rupard's symptoms. He recommended that Ms. Rupard have surgery consisting of an anterior C5-C6 cervical discectomy⁶ and fusion.

Ms. Rupard filed her claim for workers' compensation on October 4, 2000, alleging an onset date of September 8, 2000. Her claim for workers' compensation stemmed from neck and upper extremity injuries caused by holding her neck in an awkward position while performing her dental assistant activities. She contended that her injuries stemmed from an occupational disease that arose out of and during the course of her employment. The Administrative Law Judge ("ALJ") issued findings of fact and rulings of law on February 8, 2002, finding in favor of Employer and denying benefits to Ms. Rupard because her claim was barred by the statute of limitations under sections 287.430 and 287.063.3, RSMo 2000. Ms. Rupard appealed and the Commission reversed, concluding that the ALJ misapplied the law and Ms. Rupard's claim was not barred by the statute of limitations. The Commission found Ms. Rupard was entitled to the surgery recommended by Dr. Coufal and awarded temporary total disability benefits for the period that she needs to recover from surgery and return to work. This appeal by Employer followed.

The Employer's sole point on appeal is that the Commission erred as a matter of law in holding that the statute of limitations did not bar Ms. Rupard's claim and in issuing a temporary or partial award because Ms. Rupard's claim was not filed within the three-year statute of limitations imposed by section 287.430, RSMo 2000, in that the compensable injury was reasonably discoverable and apparent prior to October 4, 1997.

Jurisdiction

Before addressing Employer's sole point on appeal, it is necessary to address whether this court has jurisdiction to hear its claim. This is an appeal from a "temporary or partial" award of workers' compensation benefits. Appellate courts lack jurisdiction in workers' compensation cases except as expressly conferred by statute. Hillenburg v. Lester E. Cox Med. Ctr., 879 S.W.2d 652, 655 (Mo.App. S.D.1994) (citations omitted). Section 287.495 authorizes an appeal from the "final award of the commission" to the appellate court. Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 397 (Mo.App. E.D.1996) (citation omitted). A final award is one disposing of the entire controversy between the parties. Id. Generally, no appeal lies from a temporary or partial award. Stufflebean v. Crete Carrier Corp., 895 S.W.2d 115, 116 (Mo.App. W.D.1995) (citation omitted). An exception exists when the employer contends that it is not liable for the payment of compensation. Marston v. Juvenile Justice Ctr. of the 13th Judicial Cir., 88 S.W.3d 534, 536 (Mo.App. W.D.2002) (citing Korte, 922 S.W.2d at 398). In this case, Employer asserts that it is not liable for compensating Ms. Rupard because the statute of limitation bars Ms. Rupard's claim. This is a question of liability and, thus, appellate review of the Commission's decision is appropriate.

Standard of Review

Appellate review of workers' compensation cases is governed by section 287.495, RSMo 2000. It provides, in pertinent part:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

§ 287.495.1, RSMo 2000. An appellate court reviews the findings of the Commission and not those of the ALJ. Nielsen v. Max One Corp., 98 S.W.3d 585, 589 (Mo. App. S.D.2003) (citing Sullivan v. Masters Jackson Paving, Co., 35 S.W.3d 879, 883 (Mo.App. S.D.2001)).

Review of workers' compensation cases where the Commission has reversed the findings and award entered by the ALJ involves a two-step process. Davis v. Research Med. Ctr., 903 S.W.2d 557, 570 (Mo. App. W.D. banc 1995). The first step entails the appellate court examining the entire record to determine if the award is supported by competent and substantial evidence. Id. While examining the whole record, an appellate court is to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Id. In viewing the evidence in the light most favorable to the award, an appellate court may disregard the credibility determinations of the ALJ. Id. If competent and substantial evidence does not exist to support the award, the Commission's award must be reversed. Id. at 571. If an appellate court determines that competent and substantial evidence exists, it moves to the second step of the analysis to determine whether the award is against the overwhelming weight of the evidence. Id. During the second step of the analysis, an appellate court continues to view the evidence in the light most favorable to the award but also considers all evidence in the record, including that which opposes or is unfavorable to the award. Id.

Determination of the compensability of the injury is a matter of law. Blades v Commercial Transp., Inc., 30 S.W.3d 827, 828-29 (Mo. banc 2000) (citing Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 535 (Mo. banc 1996)). The Commission's interpretation and application of the law are not binding on an appellate court and fall within the realm of independent review and correction where erroneous. Nielsen, 98 S.W.3d at 589 (citing Sullivan, 35 S.W.3d at 884). Appellate review of such findings is de novo. Nance v. Treasurer of Mo., 85 S.W.3d 767, 770 (Mo.App. W.D.2002) (citing Carlson v. Plant Farm, 952 S.W.2d 369, 372-73 (Mo.App. W.D.1997)). Commission decisions,...