Smith v. Donco Const.

• Citation: 182 S.W.3d 693
• Decision Date: 23 January 2006
• Docket Number: No. 26903.,26903.
• Parties: Roy L. SMITH, Appellant, v. DONCO CONSTRUCTION, Respondent, and Ohio Casualty Insurance Company, Respondent.
• Court: Court of Appeal of Missouri (US)

182 S.W.3d 693

Roy L. SMITH, Appellant, v. DONCO CONSTRUCTION, Respondent, and Ohio Casualty Insurance Company, Respondent.

No. 26903.

Missouri Court of Appeals, Southern District, Division Two.

January 23, 2006.

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William W. Francis, Jr., and Ryan E. Murphy, Placzek & Francis, Springfield, for appellant.

Patrick J. Platter and Jeffrey C. Goodnight, Neal & Newman, L.L.P., Springfield, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant Roy L. Smith ("Claimant") appeals from a final award denying compensation entered by the Labor and Industrial Commission ("the Commission"), arising from a claim for compensation made by Claimant against Respondent Donco Construction ("Employer") for a purported injury suffered at Employer's job site.¹

In denying relief to Claimant, the Commission affirmed the decision of the Associate Administrative Law Judge ("the ALJ"), which had determined that at the time of the purported injury Claimant suffered from a pre-existing and "ordinary disease of life in the nature of discitis and related intervertebral osteomyelitis."² The ALJ found that the foregoing "conditions are extremely rare and there is no evidence to support the conclusion that [these conditions] would have resulted from [Claimant's] work with a drill hammer and concrete on August 12, 1999."³

Claimant now raises one point in his appeal. He maintains:

[t]he Commission erred in denying [his] claim for compensation, because the denial is based on an erroneous finding that his disability resulted from a pre-existing condition of dis[c]itis and vertebral osteomyelitis, in that the law only permits such a denial when there is evidence of a pre-existing disability which was absent in the facts and evidence.

Stated another way, Claimant argues that "the evidence is uncontradicted that the condition of [his] lower back was asymptomatic prior to his job-related injury and in no way impeded him from working." He asserts that his "pushing, pulling and straining" while squatting in a horizontal position and pulling a heavy cement drill triggered the symptoms of "a previously asymptomatic infection in his back" and that this particular activity caused him to suffer severe back pain. He also relates that "[b]efore the specific onset of this injury on August 12, 1999, [he] had only experienced mild back problems many years before for which he was able to receive complete relief from a chiropractor." Accordingly, he asserts his symptoms were either caused or accelerated as a direct result of his employment with Employer. Therefore, Claimant maintains it was error to deny him compensation for his work-related medical expenses and permanent partial disability claim.

In support of his assertions, Claimant cites to Rana v. Landstar TLC, for the proposition that a claimant "can show entitlement to [permanent partial disability] benefits, without any reduction for [a] pre-existing condition, by showing that it was non-disabling and that the `injury caused the condition to escalate to the level of a disability.'" Rana v. Landstar TLC, 46 S.W.3d 614, 629 (Mo.App.2001), overruled in part by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo. banc 2003) (quoting Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo.App.1994), overruled in part by Hampton, 121 S.W.3d at 228); see also Lawton v. Trans World Airlines, Inc., 885 S.W.2d 768, 771 (Mo.App.1994), overruled in part by Hampton, 121 S.W.3d at 228; Indelicato v. Mo. Baptist Hosp., 690 S.W.2d 183, 186-87 (Mo.App.1985), overruled in part by Hampton, 121 S.W.3d at 231.

Claimant presented the testimony of Dr. Andrew Myers ("Dr. Myers"), who diagnosed Claimant as suffering from an annular tear in the discs at "L4-L5 and L5-S1." Dr. Myers opined that the "injury which [Claimant] sustained on August 12, 1999, precipitated the back pain which led to his disability." Dr. Myers then rated Claimant at "10 to 15 percent permanent partial disability of the body as a whole. . ." attributable only to the on-the-job injury, exclusive of the discitis and associated osteomyelitis.

Respondents assert, on the other hand, that the Commission properly denied compensation.⁴ They maintain Claimant had an ordinary disease of life as defined in section 287.067(1), and as underscored by the fact that there was substantial and competent evidence before the Commission that Claimant had the disease of "discitis and vertebral osteomyelitis" which is not a work-related condition. In support they tender the testimony of their expert medical witness, Dr. Wolfe Gerecht ("Dr. Gerecht"). Further, Respondents maintain that a disease of life is not compensable as an injury following an accident, section 287.020.3(2)(d), nor is an occupational disease compensable if it is derived from an ordinary disease of life. See § 287.067.1.

"A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence." Hampton, 121 S.W.3d at 222-23.

`We 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; and (4) that there was not sufficient competent evidence in the record to warrant the making of the award.'

Russell v. Invensys Cooking & Refrigeration, 174 S.W.3d 15, 22 (Mo.App.2005) (quoting Shelton v. Mo. Baptist Med. Ctr., 42 S.W.3d 700, 701 (Mo.App.2001)); see § 287.495.1.

"`The Commission reviews the record, and where appropriate, it will also determine the credibility of witnesses and weight of their testimony, resolve any conflicts in the evidence, and reach its conclusions on factual issues independent of the ALJ.'" Id. (quoting Shaw v. Scott, 49 S.W.3d 720, 728 (Mo.App.2001)). "The `Commission's interpretation and application of the law are not binding on this Court and fall within our realm of independent review and correction.'" Id. (quoting Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 263 (Mo.App.2004)).

"`The acceptance or rejection of medical evidence is for the Commission.'" Id. at 23 (quoting Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo.App.2001), overruled in part by Hampton, 121 S.W.3d at 225). "`The fact finder may reject all or part of an expert's testimony.'" Id. (quoting Bennett v. Columbia Health Care, 134 S.W.3d 84, 92 (Mo.App.2004)). "We will uphold the Commission's `decision to accept one of two conflicting medical opinions' if such a finding is supported by competent and substantial evidence." Russell, 174 S.W.3d at 23 (quoting Birdsong v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo.App.2004)). "When witnesses are deposed and do not testify live before the ALJ, the Commission is just as able as the ALJ to determine credibility from the written record." Birdsong, 147 S.W.3d at 137-38. "`We will not overturn the Commission's determination regarding conflicting medical opinions, unless it is against the overwhelming weight of the evidence.'" Russell, 174 S.W.3d at 23 (quoting Bennett, 134 S.W.3d at 92).

Section 287.020.2 provides that "[a]n injury is compensable if it is clearly work related" and "[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability."⁵ "Claimant has the burden of showing that [an] accident arose out of and in the course of employment." Simmons v. Bob Mears Wholesale Florist, 167 S.W.3d 222, 225 (Mo.App. 2005). "`Arising out of' and `in the course of' employment are two separate tests, and both must be met before an employee is entitled to compensation." Id. (quoting Abel v. Mike Russell's Std. Serv., 924 S.W.2d 502, 503 (Mo. banc 1996)).

"To meet the test of an injury `arising out of' the employment, the injury must be a natural and reasonable incident of the employment, and there must be a causal connection between the nature of the duties or conditions under which employee is required to perform and the resulting injury." Id. "`In the course of employment' refers to the time, place and circumstance of an employee's injury." Simmons, 167 S.W.3d at 225.

An injury is not compensable merely "because work was a triggering or precipitating factor." § 287.020.2; see also Wagner-Jones v. Harbert Yeargin Constr. Co., 145 S.W.3d 511, 517 (Mo.App.2004). "However, a work related accident can be both a triggering event and a substantial factor." Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo.App.1998), overruled in part by Hampton, 121 S.W.3d at 226.

Workers' compensation awards for [permanent partial disability] are authorized pursuant to [section] 287.190. `The reason for an award of permanent partial disability benefits is to compensate an injured party for lost earnings.' [Permanent partial disability] is defined in [section] 287.190.6 as being permanent in nature and partial in degree. `[A]n actual loss of earnings is not an essential element of a claim for permanent partial disability.' [Permanent partial disability] can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. [The Commission] `has discretion as to the amount of the award and how it is to be calculated.' `It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered.'

Rana, 46 S.W.3d at 626 (internal citations omitted).

"[I]n a workers' compensation case, in which the employee is seeking benefits for [permanent partial disability], the employee has the burden of proving, inter alia, that his or her work-related injury caused the disability claimed." Id. at 629.

As to the employee's burden of proof with respect to...