Sifferman v. Sears, Roebuck and Co.

• Decision Date: 01 August 1995
• Docket Number: No. 19918,19918
• Citation: 906 S.W.2d 823
• Parties: Melvin N. SIFFERMAN, Claimant-Appellant, v. SEARS, ROEBUCK AND COMPANY, Allstate Insurance Company, and Second Injury Fund, Respondents.
• Court: Missouri Court of Appeals

Page 823

906 S.W.2d 823

Melvin N. SIFFERMAN, Claimant-Appellant, v. SEARS, ROEBUCK AND COMPANY, Allstate Insurance Company, and Second Injury Fund, Respondents.

No. 19918.

Missouri Court of Appeals,

Southern District.

Aug. 1, 1995.

Motion for Rehearing or Transfer

was Denied on Aug. 23, 1995.

Application to Transfer Denied

Oct. 24, 1995.

Michael D. Mayes, Schmidt, Kirby and Sullivan, P.C., Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., E. Joseph Hosmer, Asst. Atty. Gen., Jefferson City, for Second Injury Fund.

Brent S. Bothwell, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for Sears, Roebuck and Co. and Allstate Ins. Co.

FLANIGAN, Judge.

Claimant Melvin Sifferman filed a claim under the Workers' Compensation Law against his employer, Sears, Roebuck and Company, for injuries arising out of an accident which occurred on March 17, 1990. The custodian of the Second Injury Fund was made an additional party. The Labor and Industrial Relations Commission entered a final award allowing compensation and affirming an award previously entered by the administrative law judge.

The award of the Commission included the following:

"The claimant's preexisting conditions were of sufficient magnitude that the medical experts found them to be disabling and, in fact, the claimant has had episodes of lost time from work for his problems arising from a hip fracture and back pain dating to 1984. This preexisting condition is, by the greater weight of the evidence presented, sufficient to establish liability to the Second Injury Fund in the amount of 15 percent of the whole person, which preexisted his injuries of March 17, 1990. The claimant's injuries of March 17, 1990, to his hip and back were of sufficient magnitude that the claimant now has, by the greater weight of the credible evidence, a permanent partial disability of 35 percent to the person referable to his back injuries."

The Commission awarded compensation in the amount of $27,816, of which $24,339 was payable from the employer, based on a permanent partial disability rating of 35 percent of the person (140 weeks), and $3,477 (20 weeks) was payable from the Second Injury Fund.

Claimant's first point is that the Commission erred in finding "[claimant] was permanently partially disabled rather than permanently totally disabled," in that the finding "is not based on substantial evidence in the record as a whole and contrary to the overwhelming weight of the evidence."

Appellate review of the Commission's award is governed by § 287.495, ¹ which reads, in pertinent part:

"[I]n the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. 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."

In Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo.banc 1993), the court said:

"Under Article V, § 18, of the Missouri Constitution we review the decision of the Commission to see that it is supported by competent and substantial evidence on the record as a whole. In that review, we defer to the Commission on issues involving the credibility of witnesses and the weight to be given testimony, and we acknowledge that the Commission may decide a case 'upon its disbelief of uncontradicted and unimpeached testimony.' Questions of law, of course, are the proper subject of our review. Section 287.495.1, RSMo 1986." (citation omitted).

The award of the Commission may be overturned by this court only if it is not supported by substantial evidence or if it is clearly contrary to the overwhelming weight of the evidence. This court, viewing the record in the light most favorable to the findings of the Commission, must determine whether the Commission could have reasonably made its findings and award. Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364, 366[1, 2] (Mo.banc 1987).

"The term 'total disability' as used in [the Workers' Compensation Law] shall mean 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." § 287.020.7.

In the following cases, the claimant contended that he or she was totally disabled and that the Commission erred in ruling otherwise: Massey v. Missouri Butcher & Cafe Supply, 890 S.W.2d 761 (Mo.App.1995); Hamby v. Ray Webbe Corp., 877 S.W.2d 190 (Mo.App.1994); Story v. Southern Roofing Co., 875 S.W.2d 228 (Mo.App.1994); Faubion v. Swift Adhesives Co., 869 S.W.2d 839 (Mo.App.1994); Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo.App.1993); Thornton v. Haas Bakery, 858 S.W.2d 831 (Mo.App.1993); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo.App.1992); Jones v. Jefferson City School Dist., 801 S.W.2d 486 (Mo.App.1990); Johnson v. Terre Du Lac, Inc., 788 S.W.2d 782 (Mo.App.1990); Doria v. Chemetron Corp., 784 S.W.2d 323 (Mo.App.1990); Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502 (Mo.App.1989); Crum v. Sachs Elec., 769 S.W.2d 131 (Mo.App.1989). In each of them, the claimant's contention was rejected and the Commission's award, based on findings of partial disability, was affirmed.

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. Massey, at 763. This court will uphold a finding of the Commission consistent with either of two conflicting medical opinions if supported by competent and substantial evidence upon the record. Id. Total disability means the inability to return to any reasonable employment. It does not require that the claimant be completely inactive or inert. Lawrence, at 792. The determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within the province of the Commission, and this court will not substitute its judgment for that of the Commission even if this court would have made a different initial conclusion. Jones, at 489. The Commission is not bound by the expert's exact percentages and is free to find a disability rating higher or lower than that expressed in medical testimony. Id. at 490. The Commission may consider all of the evidence, including the testimony of the claimant, and draw all reasonable inferences in arriving at the percentage of disability. Doria, at 325.

On March 17, 1990, claimant, a delivery truck driver employed by Sears, was loading tractor parts at the Sears store in Springfield. He lost his footing, fell off the truck, and landed on his left hip and back. He was taken to a hospital by ambulance, x-rayed, given pain medications, and sent home.

His treating physician was Robert Bennett, M.D. He initially received conservative treatment, but on June 11, 1990, Dr. Bennett performed surgery on his low back. He tolerated the surgery well and returned to work on August 1, 1990, doing light work such as cleaning up the loading facilities and sweeping floors. He testified that at the end of an eight-hour day he was physically spent and could do nothing but rest for the next day's work. In October 1990, his light duty position was terminated and he has not worked since that time.

Claimant had some preexisting conditions due to an incident in 1984 when a tree fell on him, resulting in a fracture to his right hip which required surgery and the insertion of plates. He was off work for approximately five months due to the 1984 incident.

Medical evidence, consisting of depositions and reports, was introduced by both sides. It included the following:

Robert Bennett, M.D.: Claimant was seen on September 11, 1990, for reevaluation of his back. He continues to have pain in his back with occasional pain radiating down his leg. He is unable to do any heavy lifting without discomfort. His wounds have healed nicely. He has some stiffness of motion, and there is no evidence of any neurological deficit. X-rays show the back to be maintaining satisfactory position, but he has fairly advanced degenerative joint disease affecting other portions of his lumbar spine. This condition certainly contributes to the overall symptomatology of chronic low grade back pain. It is my belief he will not be able to return to an occupation requiring heavy lifting, lifting with twisting, or either sitting or standing for prolonged periods of time. It is my feeling he has a permanent partial disability of 50 percent of whole body function. On February 5, 1992, I again saw claimant. His myelogram shows some spinal stenosis at L4-5 and 3-4, with a suggestion of bulging disk. Further decompression in his back may result in some instability and might warrant internal fixation. He has had some improvement since the onset of these symptoms and we have decided to try to continue conservative care without operative intervention.

Janie Vale, M.D.: I examined claimant on January 16, 1991, at the request of the employer. As a result of the fall at work [March 17, 1990], claimant sustained trauma to the lumbosacral back and left hip areas. He had an excellent resolution of the probable fracture of the left hip and sustained no impairment related to the left hip injury. He suffered a disk herniation as a result of his fall, and his fall resulted in aggravation of a preexisting degenerative change in the lumbosacral back. He had at least a 15 to 20 percent preexisting impairment of the total body, and he has a 30 percent permanent partial impairment of the total body as a result of the fall. With the progression of his degenerative changes, I...