Walsh v. Treasurer of the State of Mo., 21573

Decision Date15 October 1997
Docket NumberNo. 21573,21573
Citation953 S.W.2d 632
PartiesPatrick Thomas WALSH, Claimant-Appellant, v. TREASURER OF THE STATE OF MISSOURI, as custodian of the Second Injury Fund, Respondent.
CourtMissouri Court of Appeals

Larry J. Pitts, Ramsdell & Associates, Springfield, for Claimant-Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cara Lee Harris, Asst. Atty. Gen., Jefferson City, for Respondent.

GARRISON, Presiding Judge.

Patrick Thomas Walsh ("Claimant") appeals from a decision of the Labor and Industrial Relations Commission (the "Commission"). Claimant, a truck driver, was injured on the job on October 2, 1991 and October 7, 1991, while employed by Contract Freighters, Inc. ("CFI"). He subsequently sought disability benefits from both CFI and the Second Injury Fund (the "Fund"). Immediately prior to the hearing before the Administrative Law Judge ("ALJ"), Claimant settled his claim with CFI, receiving compensation for 29.26% permanent partial disability to his body as a whole. The ALJ then denied his claim against the Fund, and the Commission affirmed that decision. Claimant appeals the Commission's Final Award Denying Compensation. We affirm.

Claimant was born on July 21, 1960. He served in the United States Air Force from 1980 to 1982, and was discharged when he developed hearing problems that rendered him unable to perform his duties. Although Claimant had several ear infections as a child, his hearing difficulties primarily began while he was in the Air Force, and apparently resulted from flying in planes. Eventually, he underwent experimental surgery, which apparently yielded a poor result, worsened his hearing problems, and lead to his discharge. Claimant has been prescribed hearing aids for both ears, but wore only one at the time of the hearing before the ALJ. He testified that he compensates for his hearing difficulties by keeping focal face contact and reading lips. On cross-examination by the Fund, Claimant testified that the use of hearing aids helps his hearing, and that since his military service, he has held jobs in which the ability to hear is necessary, such as in the restaurant industry. He also admitted that he had testified, in a deposition taken before he settled his claim with CFI, that his hearing problems "come and go."

In 1982, Claimant worked at Crockett's Smokehouse in Oklahoma City, Oklahoma, where he strained his back while discarding some trash. He sought treatment from a chiropractor, but was not hospitalized, and received no disability payment for this injury. He testified that he left the job because he could no longer lift the trash, and because he was moving out of the state. He did not list this incident as a prior injury on his application for employment with CFI.

In 1987 or 1988, Claimant was injured again, while employed at Newgate Condominiums in Lakewood, Colorado. Claimant and another employee were moving a couch, when part of the couch fell on Claimant, causing a strain to his back, upper shoulders, and head. He consulted a chiropractor, and received treatment which continued for seven months, and he eventually received $8000 and his medical expenses in settlement of his workers' compensation claim arising from that injury. He testified that after the injury, he avoided work that involved bending or lifting, because he felt that the condition of his back was worsening.

On cross-examination, Claimant admitted that he was off work for only six weeks after the injury in Colorado. He also stated that he represented on his employment application with CFI that he was "released back to work 100%" after that injury; that he recovered no permanent disability benefits as a result of it; and that he was capable of heavy manual work. At the hearing, Claimant testified that he was not certain what his doctors diagnosed after the injury involving the couch, but he testified in his deposition, and stated on his CFI job application, that he had suffered only a strain and that his doctors never found anything permanent. Claimant's deposition testimony also included his statement that after the injury he regained all of his strength, had no more problems with his neck and shoulders, had no restrictions in his range of motion, and that he could do everything he did before.

After the injury in Colorado, Claimant held various jobs prior to July 1991, when he began working for CFI. He testified that ninety-nine percent of the loads he hauled for CFI were "drop and hook" loads, which required no manual loading or unloading, and that he avoided loads that did require manual loading and unloading because of the potential for back injuries.

Claimant admitted on cross-examination that he took whatever load CFI assigned to him, and that he did do some manual loading and unloading of freight. He also admitted that he took and passed the physical examination required for a commercial driver's license, and that he told the examining physician that he had no "permanent defects from illness, disease, or injury." Claimant testified that prior to his October 1991 injury, he had gone rock-climbing, water-skiing, and off-road dirt biking. He stated at his deposition that he was not having any problems with his back at the time he began working for CFI, and told vocational consultant Wilbur Swearingin that while employed there he lifted fifty to one hundred pounds at a time. Finally, Claimant admitted that, on two separate occasions, he testified under oath that he was as "strong as a horse" before his October 1991 injury.

On October 2, 1991, Claimant experienced a funny feeling in his lower back and left leg while getting out of a truck. He continued to work, although he testified that he had increasing pain in his back and leg. On October 7, 1991, Claimant experienced significantly increased pain in his back and leg while unloading boxes of paper on a manual unload trip. Claimant sought treatment for this injury and had surgery on his back in November 1991.

Claimant testified at the hearing that he has pain in his back and left leg every day, that his mobility is limited, and that his leg will occasionally give way, causing him to fall. On cross-examination, he stated that he had no pain or numbness in his back or legs before the October 1991 injury, and was not limited in his ability to sit, stand, or walk. Claimant's wife, stepson, and two of his friends testified that Claimant is apparently unable to help with housework, and that they have observed him having difficulty standing up and walking, and have occasionally seen him fall. Claimant has not worked since October 7, 1991, the date of his injury, because, he believes, he is physically unable to do so.

Dr. Michael Farrar, D.O., examined Claimant on three separate occasions after his back surgery. In his opinion, Claimant had a 5% permanent partial disability prior to his October 1991 injury, a 28% permanent partial disability as a result of that injury, and an overall disability of 43%, and was not employable. He assessed Claimant's physical abilities relevant to his employability, however, and determined that he could occasionally lift loads of twenty pounds; stand or walk for a total of two out of eight hours; sit (with normal breaks) for a total of six out of eight hours; operate hand or foot controls; occasionally stoop, kneel or crouch; reach, handle, finger, and feel without limit; but could not climb or crawl.

Claimant was also examined by Dr. Henry Freede, M.D., who expressed the opinion that Claimant had recovered fully from his injuries suffered before October, 1991, and had no disability resulting from them. He assigned Claimant a permanent partial disability rating of 25% attributable to his October, 1991 injuries.

Mike Lala, a vocational rehabilitation expert, reviewed the records concerning Claimant's case, including his medical records and the report of another vocational expert who evaluated Claimant, and testified that he believed Claimant to be employable, and did not believe that Claimant suffered from any obstacle or hindrance to his employment prior to his October, 1991 injuries. Mr. Lala based his opinion on Claimant's work history, and on Claimant's own statements about what he was able to do after each of his injuries.

Based on this and other evidence, the ALJ, whose decision the Commission adopted, found that Claimant was neither permanently and totally disabled, nor entitled to any permanent partial disability benefits from the Fund. Specifically, he found that Claimant had no prior disabilities that would constitute a hindrance or obstacle to his employment or reemployment.

When this court reviews a decision of the Commission, 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 Medical Center, 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.

Claimant presents three points on appeal. The first relates to the testimony of Mr. Lala. Claimant contends that the ALJ, and hence the Commission, erred in allowing Mr. Lala to testify because the Fund identified him as an expert witness only two days before the hearing,...

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