Sickmiller v. Timberland Forest Prods., Inc.

• Court: Missouri Court of Appeals
• Citation: Sickmiller v. Timberland Forest Prods., Inc., 407 S.W.3d 109 (Mo. App. 2013)
• Decision Date: 18 July 2013
• Docket Number: SD 32277,Nos. SD 32257,SD 32291.,s. SD 32257
• Parties: Tammy L. SICKMILLER, Claimant–Appellant/Respondent, v. TIMBERLAND FOREST PRODUCTS, INC., Employer–Respondent/Cross–Appellant, and Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent/Cross–Appellant.

407 S.W.3d 109

Tammy L. SICKMILLER, Claimant–Appellant/Respondent,

v. TIMBERLAND FOREST PRODUCTS, INC., Employer–Respondent/Cross–Appellant,andTreasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent/Cross–Appellant.

Nos. SD 32257, SD 32277, SD 32291.

Missouri Court of Appeals,

Southern District,

Division Two.

July 18, 2013.

Randy C. Alberhasky, Springfield, MO, for appellant-respondent.

Patricia L. Musick, Springfield, MO, and, Douglas M. Greenwald, Kansas City, KS, for Employer.

Cara L. Harris, Springfield, MO, for Resp/Cross–Appellant, SIF.

Tammy L. Sickmiller (“Claimant”) sustained a back injury while lifting a wooden pallet in the course of her employment with Timberland Forest Products, Inc. (“Employer”). The Labor and Industrial Relations Commission (“the Commission”) found that Claimant's back injury, combined with her pre-existing physical and psychological disabilities, rendered her permanently, totally disabled and awarded her benefits for reimbursement of past medical expenses and future medical care. Feeling less than satisfied with the decision for varying reasons, Claimant, Employer, and the Missouri State Treasurer as Custodian of the Second Injury Fund (“the Fund”) all appeal.

Claimant asserts the Commission erred in refusing to assess costs against Employer pursuant to section 287.560.¹ Employer challenges as unsupported by substantial and competent evidence the Commission's findings that Claimant was: (1) rendered permanently and totally disabled as a result of the work-related injury; and (2) entitled to past and future medical treatment. The Fund claims the Commission erred in ordering it to pay Claimant permanent total disability benefits because Claimant's inability to be employed was caused by her worsening psychological condition rather than her work-related accident.

Finding no merit in any of these claims, we affirm the award of the Commission.

Standard of Review

Our review is limited to a determination of whether the Commission's decision is “supported by competent and substantial evidence upon the whole record.” Mo. Const. art. V, sec. 18. We may modify, reverse, remand, or set aside the Commission's award only on the following grounds:

(1) That the [C]ommission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the [C]ommission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1. “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).

We review issues of law de novo, but we defer to the Commission on issues of fact, including the credibility of witnesses and the weight to be given their testimony. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 506 (Mo.App. S.D.2011). “The Commission is free to believe or disbelieve any evidence.” Underwood v. High Road Indus., LLC, 369 S.W.3d 59, 66 (Mo.App. S.D.2012). “If the evidence before the Commission would warrant either of two opposed findings, we are bound by the administrative determination.” RPCS, Inc. v. Waters, 190 S.W.3d 580, 583–84 (Mo.App. S.D.2006).

Factual and Procedural Background ²

Claimant provided the following testimony. In 2007, she worked for Employer as a “grader/stacker.” Her responsibilities included reviewing boards as they came off the conveyor belt and stacking them on separate pallets according to their type. On the morning of September 28, 2007, Claimant was lifting an empty pallet when her back “popped” and her “lower right abdomen started hurting.” Claimant notified her supervisor and filled out an accident report with Employer. Claimant did not return to work that day.

At the time of her September 28, 2007 work injury (“work injury”), Claimant suffered from a preexisting psychological disability (depression) for which she received treatment in 2000. Claimant attributed her mental condition at that time to financial and marital difficulties. Claimant also had a history of suicidal ideations that began when she lost custody of her children sometime between 2000 and 2001. Claimant had also been treated for bilateral carpal tunnel syndrome as the result of a work-related injury she suffered when working in 1999 for a previous employer. As to the latter, an evaluation from September 1999 by Dr. Jeffrey Mutchler indicated that Claimant was “rate[d] out at 13% whole person [p]ermanent [p]artial [i]mpairment” based upon the injuries to Claimant's right hand and wrist. The August 1999 “final report” of Dr. Jeffrey Woodward “recommend[ed] a permanent partial impairment rating of 15% at the 175–week level for the right wrist/hand work-related conditions[.]”

On the Monday after Claimant suffered the work injury, she went to the emergency room because the pain in her back and lower abdomen was worsening. Claimant was given painkillers, and she was referred to Dr. Eck for evaluation of a possible hernia. Claimant also received treatment from a nurse practitioner, who ordered an MRI of Claimant's abdomen and pelvis.³ On October 8, 2007, Dr. Eck saw Claimant and determined that she might have suffered a strain in her lower back.

On October 10, 2007, Employer authorized Claimant to see Dr. Jordan, who diagnosed her as having a lumbosacaral strain and an abdominal wall strain. Dr. Jordan recommended physical therapy, but Employer did not authorize the treatment. Dr. Jordan also gave Claimant lifting restrictions, but Employer did not have any light-duty work for Claimant to perform that would meet those restrictions. Claimant remained off work through October 31, 2007, when Dr. Jordan discharged her to return to work without limitations.

Although Claimant returned to work at that time, she was still experiencing lower back pain, and she had to have assistance to perform her job responsibilities. In May and June of 2008, Claimant's legs started going numb and “giving out[.]” She was also under a lot of stress and was having marital problems. Claimant began seeing Dr. Rakestraw for her continuing pain. Dr. Rakestraw told Claimant that she was not able to work any longer, and he provided her with “no-work” slips through August 2008, which Claimant turned in to her supervisors. Claimant last worked for Employer on June 25, 2008.

Claimant filed her claim for compensation in July 2008. It asked that Employer authorize additional care for her lower-back injury and her continuing pain. Employer denied the claim on the basis of Dr. Jordan's discharge on October 31, 2007. Claimant then continued to seek and receive treatment on her own. On July 2, 2008, another MRI performed on Claimant revealed “disc bulging and an annular margin tear L4–5 along with facet joint hypertrophy at L3–4, L4–5 and L5–S1.” Claimant received epidural injections in her lower back to help relieve her pain. Claimant was also being treated for worsening depression, and she was hospitalized on multiple occasions for having suicidal thoughts.

On April 2, 2009, Dr. Bennoch conducted an independent medical evaluation of Claimant. In his resulting written report, Dr. Bennoch opined that Claimant needed additional evaluation for a possible nerve impingement involving a disc and that Claimant “has not reached maximum medical improvement.” Because of this, Dr. Bennoch did not provide “an impairment rating” pending “further evaluation and treatment[.]” ⁴ Dr. Bennoch was able to opine that the work injury “was the prevailing cause of injury to the low back resulting [in] persistent low back pain and right radiculopathy” and that the work injury resulted in “an industrial impairment that would be a hindrance to employment or reemployment.”

Dr. Bennoch also opined that Claimant had “a 20% permanent partial impairment to the body as a whole rated at the brain due to severe depression.” He attributed 15% to “preexisting depression and 5% to worsening depression secondary to the [work] injury.” Concerning other pre-existing impairments hindering employment, he assigned 20% impairment to the right upper extremity and 10% impairment to the left upper extremity as a consequence of bilateral carpal tunnel syndrome. Dr. Bennoch opined that “[t]he combination of [Claimant's] impairments does create a substantially greater impairment than the total of each separate injury and illness, and a loading factor should be added.” He concluded that Claimant had been temporarily and totally disabled since June 2008 and would continue to be so until she received further evaluation and treatment.

On November 19, 2009, Dr. Olive examined Claimant. Dr. Olive testified by deposition that Claimant suffered from chronic back pain. Dr. Olive initially indicated that Claimant's pain was unrelated to her work injury. After considering additional medical records presented during the deposition, he changed his opinion and stated that Claimant's pain was caused by her work injury. Presumably based on that change of opinion, Employer agreed on February 23, 2010 to authorize treatment of Claimant's lower back pain by Dr. Olive. Employer maintained that it was not responsible for any temporary total disability benefits going back to the work injury because “none of [Claimant's] treating doctors [had] kept her off work based on the low back condition.”

After the emergency hearing, the ALJ concluded that Claimant was temporarily totally disabled on two different occasions: the one-month period during October 2007 before Dr. Jordan released her to return to work without restrictions and from June 26, 200[8] through the date of the hearing. The ALJ awarded Claimant benefits for those periods, plus future medical care. The ALJ did not find Dr. Bennoch's opinion credible and determined that Claimant's “work injury did not contribute to any need for mental health...