Story v. Southern Roofing Co.

• Decision Date: 26 April 1994
• Docket Number: No. 19143,19143
• Parties: Leroy Virgil STORY, Appellant, v. SOUTHERN ROOFING COMPANY and Argonaut Insurance Company, Respondents.
• Court: Missouri Court of Appeals

Page 228

875 S.W.2d 228

Leroy Virgil STORY, Appellant, v. SOUTHERN ROOFING COMPANY and Argonaut Insurance Company, Respondents.

No. 19143.

Missouri Court of Appeals,

Southern District,

Division One.

April 26, 1994.

Frank B. Green, St. Louis, for appellant.

Lawrence H. Rost, New Madrid, for respondents.

MONTGOMERY, Judge.

This is a Workers' Compensation case, in which Leroy Virgil Story (Appellant) appeals from the final award of the Labor and Industrial Relations Commission (Commission). Appellant claims the Commission erred by refusing to declare him permanently and totally disabled, by denying him future medical benefits, and by using an improper standard to determine the extent of his disability.

Appellant's original claim for benefits stemmed from an accident that occurred August 29, 1983, while he was employed by Southern Roofing Company (Respondent). ¹ Appellant was holding an aluminum extension ladder that apparently came in contact with an electrical power line; he was severely shocked and burned. The burns, which were most extensive on his right forearm and hand, required several medical procedures, including numerous skin grafts, a nerve transplant, and the removal of two finger tips. He has some permanent disfigurement and physical limitations.

Appellant's claim came before an administrative law judge (ALJ) for hearing on June 30, 1992. The ALJ rejected Appellant's contention that he is permanently and totally disabled and denied Appellant's request for future medical care benefits. The ALJ did find that Appellant has certain permanent partial disabilities, however. He found that Appellant has a 70 percent disability at the right arm, below the elbow; a 10 percent disability at the left arm, below the elbow; a 10 percent disability of the body as a whole, from assorted injuries; and an additional 15 percent disability due to the "multiplicity" of his injuries. This evaluation, the ALJ noted, corresponded to that of Appellant's treating physician, Dr. Francis X. Paletta.

The ALJ concluded that, despite Appellant's partial disabilities, he was capable of competing in the open labor market. The Commission affirmed the ALJ's award in all respects.

Appellant raises two points on appeal. In the first, he argues that the Commission's decision not to declare him permanently and totally disabled and not to award him future medical benefits is "not supported by the evidence." We address this argument in some detail, infra.

The standard of review this Court uses in Workers' Compensations cases is set forth in § 287.495, ² which provides in pertinent part as follows:

Upon appeal no additional evidence shall be heard and, in 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.

When reviewing the sufficiency of evidence, we are limited to determining if the Commission's award is supported by competent and substantial evidence on the whole record. Carroll v. Loy-Lange Box Co., 829 S.W.2d 86, 88 (Mo.App.1992). We view all evidence and inferences in the light most favorable to the award and will set aside the Commission's findings only when they are clearly contrary to the overwhelming weight of the evidence. Id. We disregard evidence that might support findings contrary to those of the Commission, even though the evidence would have been sufficient to support such contrary findings. Parker v. Mueller Pipeline, Inc., 807 S.W.2d 518, 520 (Mo.App.1991). The Commission determines the credibility of witnesses, and this court will not substitute its judgment on issues of fact for that of the Commission. Id. Conflicts in evidence are to be resolved by the Commission, whose decision is binding on this Court. Chambliss v. Lutheran Medical Center, 822 S.W.2d 926, 930 (Mo.App.1991). The Commission is not dependent solely on medical evidence from expert witnesses when making its findings; the testimony of lay witnesses (including the claimant) can constitute substantial evidence of the nature, cause, and extent of disability, especially when supported by medical evidence. Strate v. Al Baker's Restaurant, 864 S.W.2d 417, 420 (Mo.App.1993).

In light of the foregoing principles, we find that the Commission's final award was based on competent and substantial evidence. Appellant, at 5 feet 9 inches and 145 pounds, was 33 years old when he appeared before the ALJ. At that hearing, he testified that he had no trouble standing or sitting for up to eight hours, and that he could walk, move around on foot, and climb stairs without difficulty. In addition, he said he could carry, push or pull an object like a shovel or a gun; could lift a 50-pound feed sack; and could stoop, crouch, talk, listen, taste, smell, and maintain his sense of balance.

Despite his extensive injuries in 1983, Appellant admitted that his primary disability at the date of hearing had to do with his right hand. The tips of his index and middle fingers had been amputated, and he had lost the sense of touch in his thumb, index finger and middle finger. Nevertheless, he can move and pinch with these three digits (as well as his ring and little fingers) and can feel with his ring and little fingers. In other words, he can still use the hand as a unit.

Appellant testified that, since 1987, he had worked in his brother's alternator and starter repair shop. As one of his duties, he washed parts from disassembled starters and alternators prior to reassembly. To do this, he would hold the parts in one hand and clean them with a brush he held with the other hand. He would then dry the parts with compressed air (again using both hands) and wipe them with a cloth. Occasionally, he reassembled the parts. In addition, he performed assorted janitorial duties and drove his brother's truck to run errands.

In the year prior to the hearing, Appellant reported income of $5,700 from working for his brother. When asked how often he worked, he said, "When I want to.... When I need the money." Appellant said he could work every day if he wanted to, but instead he spends much of his time hunting and fishing. He lived with his parents and said he was not seeking other employment.

The impression derived from Appellant's testimony is that, if he chose to, he could indeed compete in the open job market. Other evidence adduced at the hearing bolsters that impression.

Keith Morelock, a certified rehabilitation counselor, interviewed Appellant and reviewed his medical records. ³ Morelock, whose evaluation was introduced at the hearing, concluded that, despite some significant physical impairments, Appellant is capable of working in several entry level jobs. Examples he listed were janitor, service station attendant, automobile detailer, cashier, and sales clerk. He added that, with some additional training, Appellant could perform work similar to what his brother does--i.e., repair automotive starters. In addition, he determined that, if Appellant would obtain a valid driver's license ⁴ and dependable transportation, other opportunities would be possible outside his hometown (e.g., as a parking lot attendant or doing light delivery work).

Appellant proposes three reasons why the Commission should have discounted Morelock's evaluation and, instead, found him totally and permanently disabled. First, he points to the deposition testimony of Dr. Francis Paletta, his treating physician following the 1983 accident. In particular, he focuses on Dr. Paletta's response to questions about Appellant's ability to compete in the open labor market. "My opinion," Dr. Paletta said, "is it would be very difficult for Leroy to compete."

We reject Appellant's invitation to base a reversal of the Commission's award on this lone quote. To begin with, Dr. Paletta's statement that Appellant would find competing in the open labor market "very difficult" is not the same as saying he cannot compete. Furthermore, Dr. Paletta is not a vocational specialist; he is a physician. And speaking as a physician, he agreed that Appellant is physically able to work and, with some restrictions, is capable of participating in a number of areas of gainful employment. More importantly, any conflicts that may exist between Dr. Paletta's opinion and Mr. Morelock's are for resolution by the Commission--not this Court.

Second, Appellant argues that, based on the testimony of two experts (Eli Shuter, M.D., and Samuel Bernstein, Ph.D.), the Commission had no choice but to declare Appellant permanently and totally disabled. We disagree. Although it is true that both Dr. Shuter and Dr. Bernstein (a vocational rehabilitation specialist) had the opinion that Appellant is unemployable in the open labor market, it is also true that the Commission was free to disregard those opinions. Mr. Morelock's evaluation, along with Appellant's own testimony, provided ample reason for concluding--as did the ALJ and the Commission--that the opinions of Drs. Shuter and Bernstein were "not credible and do not match the common sense reality of the employee's present situation." This Court will not substitute its judgment for that of the Commission, even if we would have reached a different conclusion. Carron v. Ste. Genevieve School Dist., 800 S.W.2d 64, 67 (Mo.App.1990).

Third, Appellant suggests that the deposition testimony of Dr. Paul Weeks (a plastic surgeon), offered by Respondents, failed to rebut Appellant's claim that he is totally...