Sullivan v. Masters Jackson Paving Co.

• Decision Date: 23 January 2001
• Citation: 35 S.W.3d 879
• Parties: (Mo.App. S.D. 2001) John Sullivan, Claimant-Appellant/Cross-Respondent, v. Masters Jackson Paving Company, Employer-Respondent/Cross-Appellant, The Travelers/Aetna Casualty And Surety Company, Insurer-Respondent/Cross-Appellant, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Respondent. 23539 & 23540 0
• Court: Missouri Court of Appeals

35 S.W.3d 879 (Mo.App. S.D. 2001)

John Sullivan, Claimant-Appellant/Cross-Respondent, v. Masters Jackson Paving Company, Employer-Respondent/Cross-Appellant, The Travelers/Aetna Casualty And Surety Company, Insurer-Respondent/Cross-Appellant, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Respondent.

23539 & 23540

Missouri Court of Appeals Southern District

01/23/2001

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Michael D. Mayes

Counsel for Respondent: William D. Powell and Karen Lang Johnson

Opinion Summary: None

Prewitt, J., and Mitchell, S.J., concur

Phillip R. Garrison, Judge

These consolidated appeals from an award of the Labor and Industrial Relations Commission ("Commission") raise three main issues: whether the Commission erred (1) in finding that John Sullivan ("Employee") sustained a permanent partial, rather than total, disability; (2) in setting Employee's compensation rate; and (3) in awarding Employee future medical care.

Employee contracted with Masters Jackson Paving Company ("Employer") to use his dump truck hauling asphalt, rock and other materials to job sites throughout Missouri. The basis of Employee's claim is a back injury sustained on September 28, 1991 when a hopper loading asphalt into Employee's truck malfunctioned and spilled asphalt over his truck. Employee got on the truck to clean the asphalt off so he could put a tarp over the load. In doing so, he slipped and fell off the railing of the truck, falling four to five feet to the sloping gravel roadway. He landed on his feet, but continued to fall sideways hitting his back and elbow and landing on all fours. He testified that he felt pain in his back and legs when he fell, but continued to work for approximately one month, at which time he quit because he was in pain and felt that he was taking too much medication to be safe. He was seen by his family physician, Dr. Tom Morrison in Aurora, Missouri on October 1, 1991, and continued seeing him for several years for his back problems with the typical treatment being prescriptions for Demerol.

Employee saw Dr. Anne Winkler, a rheumatologist, in October 1992. She ordered a CT scan that showed postoperative changes from a previous diskectomy¹ and either a postural osteophyte or tricalcified herniated disc at L5-S1 with some impingement of the left S1 nerve root, and referred him to Dr. Paul Olive, an orthopedist. At that time, Employee said that he was trying to control his pain by taking six to eight Demerol pills and a pint of whiskey per day. Dr. Anne Winkler suggested that he continue the Demerol and alcohol.

It is pertinent to note that Employee had a history of alcohol problems dating back as early as 1970. He was hospitalized for alcohol related treatment in 1971, and from 1984 to 1986 his drinking had gotten to the point that he asked his doctor for a prescription for Antabuse.

Dr. Olive's care of Employee can be summarized as follows: in October 1992, he found mild limitation of motion and tenderness in the low back, and diagnosed degenerative disk disease; in December 1992, Dr. Olive noted that his physical condition was unchanged with back pain and burning down the left leg, and he prescribed Prednisone; in January 1993, Employee reported not sleeping well because of back pain, and was prescribed a muscle relaxer and continued exercise; in March 1993, Dr. Olive noted that Employee had not improved but did not believe he was a surgical candidate; in July 1993, Dr. Olive found his condition to be "about the same," but with increased pain down the left leg, and he arranged a series of epidural injections and continued the prescription of a muscle relaxer; in August 1993, Dr. Olive found that Employee was improved after the epidural steroid injection, still had numbness in the left foot, had a lot of back pain, and prescribed a Tens unit; and on his last visit in November 1993, Dr. Olive found that the back pain was unchanged and he prescribed another Tens unit. Dr. Olive continued prescribing muscle relaxers for Employee throughout his care of him.

Employee's attorney sent him to Dr. David Volarich in December 1996 for a disability evaluation. Dr. Volarich did not believe that Employee could then work, but believed that he needed further treatment, including diagnostic scans to assess the disk, and treatment at a pain clinic for withdrawal from narcotics. In Dr. Volarich's opinion, Employee had an axial compression injury, which caused severe lumbosacral strain/sprain; aggravation of his pre-existing lumbar syndrome, including degenerative disc disease, and degenerative joint disease; and a possible recurrent herniated disk at L5-S1. He also diagnosed a narcotic addiction and severe back pain syndrome including myofacial pain syndrome. Dr. Volarich noted that Employee had preexisting back problems including a herniated disc at L5-S1 with decompression of the L4-5 and L5-S1 levels, a resolved lumbar strain, a resolved cervical strain and alcoholism. He found that the work injury was the "substantial contributing factor to the development of the severe lumbosacral strain/sprain, aggravation of his pre-existing lumbar syndrome and recurrence of the left leg radiculopathy, all of which continue to cause his multiple difficulties that require extensive narcotic medication to attempt to control his symptoms." It was his opinion that Employee had not reached maximum medical improvement, but assuming no additional treatment was rendered, he believed that there was a 50% permanent partial disability of the body as a whole as a result of the work injury, a 15% permanent partial disability which preexisted the work injury because of the prior disc herniation and surgical repair, and that the combination of impairments created a substantially greater disability than the simple total of each "and a loading factor should be added." Dr. Volarich did not attempt to assess any rating for chronic alcoholism, but confirmed that Employee began treatment for alcoholism in the 1970s, and that his alcoholism pre-dated the work injury at issue in this case, but said he recommended treatment at a pain center to withdraw Employee from narcotics. Employer referred Employee to Dr. Terry Winkler for an evaluation in January 1996. Dr. Winkler diagnosed Employee's condition as low back pain, probable Demerol dependency, and alcoholism. He said that because of Employee's history of alcoholism, he was at a much higher risk for developing a dependency for other medications if provided on a regular basis. Dr. Winkler found inconsistencies on his physical examination, believing that Employee's expressed symptoms outweighed any objective findings. He said, however, that Employee had reached maximum medical improvement, and rated him as having a 10% disability of the body as a whole as a consequence of the work injury; he had a pre-existing disability of 20% of the body as a whole; and that his overall rating was 30% to the body as a whole. He said that a person with a 30% permanent partial disability rating has significant functional limitations. Dr. Winkler did not believe that Employee was totally disabled.

The claim was heard by an administrative law judge ("ALJ") who issued an award in April 1999 finding that Employee had 20% permanent partial disability from the work injury, and that he was not permanently and totally disabled. He also found that Employee had a 17.5% disability from the pre-existing condition, and that a combination of the pre-existing disability and the disability from the work injury created a greater disability than their simple sum to the extent of fifteen weeks of compensation which the Second Injury Fund was ordered to pay. The ALJ found that the compensation rate for the permanent partial disability was $213.57 per week based on the gross income received by Employee, and that Employee was entitled to future medical treatment, specifically referring to treatment for withdrawal from alcohol and Demerol, and for pain control.

Both parties appealed to the Commission, which modified the award by finding that the applicable average weekly wage was the minimum of $40. It adopted the rest of the findings of the ALJ. Employee and Employer appeal.

In reviewing a workers' compensation award, we review the findings of the Commission and not those of the ALJ. Williams v. City of Ava, 982 S.W.2d 307, 310 (Mo.App. S.D. 1998). Where, as here, the Commission's award incorporates the ALJ's award and decision, we consider the findings and conclusions of the Commission as including the ALJ's award. Id. We first examine the whole record, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the award, in order to determine if the record contains sufficient competent and substantial evidence to support the award. Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo.App. W.D. 1995). If there is sufficient competent and substantial evidence to support the award, we then determine if the award is against the overwhelming weight of the evidence. Id. In our review, we are mindful that we may not substitute our judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission. Id. The Commission is free to disbelieve uncontradicted and unimpeached testimony. Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993). Its interpretation and application of the law, however, are not binding on this Court and fall within our realm of independent review and correction. Davis, 903 S.W.2d at 571. CASE NO. 23539

In his first point on this appeal, Employee contends that the Commission erred in not finding that he was permanently and totally disabled. He argues that the record does not contain substantial evidence of a permanent partial disability, but rather the overwhelming weight of the evidence demonstrated that he had a permanent, total...