Tidwell v. Kloster Company
| Decision Date | 07 December 1999 |
| Citation | 8 S.W.3d 585 |
| Parties | (Mo.App. E.D. 1999) James A. Tidwell, Claimant/Appellant, v. Kloster Company, Employer/Respondent, and Commercial Union Ins. Co., Insurer, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Respondent. Missouri Court of Appeals Eastern District Case Number: ED75998 Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Labor and Industrial Relations Commission
Counsel for Appellant: Robert G. Kister
Counsel for Respondent: Susan M. Kelly
Opinion Summary: In this workers' compensation case, claimant, James A. Tidwell, appeals from the Labor and Industrial Relations Commission award awarding compensation for permanent partial disability for injury to his left foot and heel and denying relief from the Second Injury Fund.
AFFIRMED AS AMENDED.
Division Two holds: (1) The Commission did not err in finding that there was insufficient evidence of the percentages of pre-existing disability for purposes of Second Injury Fund liability. (2) The claimant is entitled to $4,216.10, the stipulated underpayment of temporary total disability payments, and the award is amended to reflect that this amount of compensation is due.
(3) The claimant is entitled to 10% statutory interest on $4,216.10 from thirty days after the date the parties stipulated it was due.
Opinion Vote: AFFIRMED AS AMENDED. Dowd, Jr., and Sullivan, JJ., concur.
In this workers' compensation case, claimant, James A. Tidwell, appeals from the award of the Labor and Industrial Relations Commission [Commission] allowing compensation for permanent partial disability for injury to his left foot and heel and denying relief from the Second Injury Fund. Claimant asserts that the Commission erred in refusing to consider claimant's evidence of pre-existing permanent partial disability and the combined effect of the pre-existing and current injury for purposes of Second Injury Fund liability. Claimant further asserts that the Commission erred by failing to award $4,216.10 in stipulated unpaid temporary total disability benefits and argues he is entitled to 10% statutory interest thereon. We amend the award to include $4,216.10 in unpaid temporary total disability benefits. The Commission's award ordered interest paid as required by law. As required by law, interest is due on the $4216.10 from thirty days after the date of stipulation. We affirm as amended to include the unpaid temporary total disability benefits.
On May 20, 1994, while claimant was employed by Kloster Building Group Incorporated, claimant jumped off a trailer in the process of unloading steel and broke his heel. He was treated at an emergency room and subsequently underwent three surgical procedures and physical therapy. Claimant was released from care but has not returned to work.
Claimant had suffered prior injuries which resulted in workers' compensation awards: He injured his left knee in July, 1985, his right arm on March 7, 1986, and his right knee and his back in a two-story fall on June 17, 1986.
On May 9, 1997 claimant filed an amended claim for compensation for the May 20, 1994 injury to his left foot and heel. Claimant also made a claim against the Second Injury Fund for compensation for combined permanent disabilities from prior injuries suffered on March 7, 1986 and June 17, 1986 to his upper right extremity and right knee.
At the hearing before the Administrative Law Judge [ALJ], claimant called Dr. Jerome Levy, M.D., who had examined claimant on May 28, 1987. The examination was limited to claimant's four extremities. Based on his examination, Dr. Levy rated claimant as having a permanent partial disability of 55% of the left lower extremity at the ankle. Dr. Levy testified that he had accepted the percentages of permanent disability reflected in a workers' compensation settlement stipulation with respect to the claimant's right upper extremity, the left knee and the body as a whole. Dr. Levy explained that since he understood these other conditions to have been adjudicated at certain rates, he did not personally rate any of them. Dr. Levy concluded that claimant was permanently and totally disabled from the combination of all of his disabilities with a loading factor.
Claimant did not offer into evidence certified medical records from claimant's prior injuries. Instead he offered Exhibit A, a certified copy of the workers' compensation records for his prior injuries, which included stipulations reflecting settlements for prior injuries to the left knee in July, 1985, the right wrist, elbow and shoulder in March, 1986, the right wrist, the right knee and the body as a whole referable to the back and neck in June, 1986, and the May 3, 1994 Stipulation for Compromise Settlement in Injury #86-64382 which recited that claimant had preexisting permanent partial disability of 171/2% to the right elbow, 121/2% of the right shoulder synergistically combining with a disability of 15% of the right wrist and 13% of the man as a whole referable to the low back.
On January 27, 1997 the ALJ issued an award allowing the claim for compensation and denying claimant's Second Injury Fund claim for the May 20, 1994 fall. Claimant filed an Application for Review with the Industrial Commission. The Commission issued its Final Award affirming the award and decision of the ALJ.
When a workers' compensation claim is appealed, we review only questions of law. Section 287.495.1 RSMo (Cum. Supp. 1998). We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute; that is, if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent and substantial evidence to support the award. Id.; Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo. banc 1995).
We review decisions of the Commission, which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo. App. 1995). Findings of ultimate facts reached through application of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo. 1965). Where the evidentiary facts are not disputed, the Commission's award becomes a question of law. Id.
Where decisions are based on determinations of fact, we review the whole record in the light most favorable to the decision. West, 804 S.W.2d at 744. We defer to the Commission when it resolves issues concerning the credibility and weight to be given to conflicting evidence. Mann v. City of Pacific, 860 S.W.2d 12, 14 (Mo. App. 1993).
For his first point claimant asserts that the Commission erred in refusing to consider claimant's evidence of pre-existing permanent partial disability and the combined effect of the pre-existing and current injury for purposes of Second Injury Fund liability. Claimant argues that the percentages of disability contained in the May 3, 1994 settlement were binding on the Commission.
In its findings of fact and conclusions of law denying claimant relief from the Second Injury Fund, the Commission found:
that Dr. Levy's opinion the claimant is permanently and totally disabled because of all of his alleged physical problems is not probative in that the basis for some of the doctor's ratings was deficient. Dr. Levy did provide, along with his ratings for alleged preexisting injuries to the right wrist, the right elbow, the right shoulder and the back, an opinion that there would be a 10% multiplicity factor. There are, however, no medical records of any preexisting injuries in evidence. It is further found, therefore, that there is...
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