Weinbauer v. Grey Eagle Distributors, 45541

• Decision Date: 25 October 1983
• Docket Number: No. 45541,45541
• Citation: 661 S.W.2d 652
• Parties: Alvin WEINBAUER, Respondent, v. GREY EAGLE DISTRIBUTORS and Commercial Union Insurance Company, Appellant.
• Court: Missouri Court of Appeals

Page 652

661 S.W.2d 652

Alvin WEINBAUER, Respondent, v.GREY EAGLE DISTRIBUTORS and Commercial Union Insurance Company, Appellant.

No. 45541.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 25, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 13, 1983.

Application to Transfer Denied

Jan. 17, 1984.

Edward M. Vokoun, St. Louis, for appellant.

Richard S. McConnell, Jr., St. Louis, for respondent.

STEPHAN, Judge.

Workers' Compensation case.Appellant-employer Grey Eagle Distributors and the insurer (hereinafter collectively referred to as "appellant" or Grey Eagle) appeal from the circuit court's affirmance of the Industrial Commission's decision finding respondent-employee Alvin Weinbauer was permanently and totally disabled due to a work-related accident.We affirm.

Grey Eagle briefs four points relied on.First, Grey Eagle alleges that there was not sufficient competent evidence to warrant a finding that Weinbauer's injuries were caused or aggravated by the work-related accident.Second, Grey Eagle contends that the administrative law judge (ALJ) and the Industrial Commission, a majority of which adopted the ALJ's findings, erroneously excluded medical records under § 287.210-3 RSMo 1969.Third, Grey Eagle argues that if § 287.210-3 is applicable, the Industrial Commission erred in not granting Grey Eagle's request for a continuance so that compliance could be made with § 287.210-3.Fourth, Grey Eagle maintains that the Industrial Commission should have ordered an examination of Weinbauer by an independent, impartial physician.

The facts surrounding Mr. Weinbauer's injury may be briefly stated.Alvin Weinbauer was a truck driver for Grey Eagle, a beer distributor.On August 29, 1977, Weinbauer was unloading cases of canned beer from a truck.After taking some cases off the truck, Weinbauer reached up and pulled a case with his left hand.As he did so, the case became jammed on another case below.In order to free the case, Weinbauer jerked his left arm, experienced pain, felt his legs give out, fell backward and was caught by his helper.

The ALJ found the accident had permanently and totally disabled Weinbauer, who was 61 years old at the time of the accident.The ALJ awarded Weinbauer $95.00 per week for life, holding Grey Eagle liable for future medical care.The Industrial Commission and the Circuit Court affirmed the award.

Upon review of a case of this nature, both the Circuit Court and this Court are "bound to affirm the finding of [the] Commission majority if, after a review of the entire record in the light most favorable to that finding, the court believes the award is supported by substantial and competent evidence."Johnson v. General Motors Assembly Division G.M.C., 605 S.W.2d 511, 512(Mo.App.1980).

Grey Eagle's first point is that the evidence is not sufficient because the opinion of the physician who testified on Weinbauer's behalf did not take into account Weinbauer's prior injuries.There was evidence that Weinbauer had tripped while alighting from a barstool, dislocated his right shoulder and lacerated his forehead.On another occasion, Weinbauer had been in an accident while driving a beer truck and bruised his left shoulder and neck.Both of these accidents occurred more than a year and a half prior to August 29, 1977.The physician, Dr. Eli R. Shuter, M.D., testified that had he known of these incidents, he"might" have formed a different opinion as to his rating of the degree of disability attributable to the incident in question.From this, Grey Eagle argues that the evidence as to causation is speculative and, therefore, not substantial.

Careful reading of Dr. Shuter's testimony shows, however, that he had determined that at the time of the injury which gave rise to this claim, Weinbauer had a "pre-existing osteoarthritic cervical spondylolysis and radiculitis with evidence of compression of the cervical spinal cord and multiple bilateral cervical nerve roots."Weinbauer, whom the ALJ found to be a credible witness, had testified that immediately prior to this accident he felt, "[w]onderful.I worked every day and never missed a day except it might be the flu or cold or something."The ALJ and the Commission obviously found explanation for the rapid deterioration of Weinbauer's health after the incident of August 29, 1977, in Dr. Shuter's testimony that immediately prior to this injury "the osteoarthritic condition had progressed to the point where it was nearly compressing the spinal cord and nerve roots, but had not caused actual compression at the time of the injury.However, when he injured himself the trauma at that time was sufficient to augment the displacement and abnormality caused by the osteoarthritic structures to result in compression and tissue damage at that time."In Dr. Shuter's opinion, Weinbauer's disability was the result of his accident of August 29, 1977; and the ALJ and Commission so found.Our examination of the entire record persuades us that such finding is fully warranted by the evidence and authorized by law.A pre-existing but non-disabling condition does not bar recovery under the Workers' Compensation Law if a work related accident causes the condition to escalate to the level of disability.Gennari v. Norwood Hills Corporation, 322 S.W.2d 718, 722-723(Mo.1959).The words of this Court in Johnson v. General Motors Assembly Division G.M.C., (Mo.App.)605 S.W.2d 511, 513 are most apposite: "An inherent weakness or bodily defect, such as spondylolisthesis, occurring in conjunction with an abnormal strain, such as claimant suffered here will support a claim for compensation."There was substantial evidence from which the Commission could find that Weinbauer's pre-existing condition did not constitute an impediment to his performance of duties; thus, Grey Eagle's arguments to the effect that the Second Injury Fund, § 287.220, RSMo 1969, should participate in any award are unavailing.SeeKowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 921(Mo.App.1982).Point I is denied.

Appellant's second and third points focus on the exclusion by the ALJ of medical records of Dr. Pasqual Alonso-Yague pertaining to Weinbauer.These records were produced by their custodian (the doctor's bookkeeper) pursuant to a subpoena when the hearing before the ALJ continued on November 30, 1979.¹The subpoena had been served by Grey Eagle's attorney on November 27, 1979, and the records examined by him at that time.An authorization to inspect the records had been issued by the Commission to Grey Eagle's attorney on November 21, 1979.Weinbauer's attorney objected to the admission of the records on the ground that he had not been furnished with a copy seven days prior to the hearing as contemplated by § 287.210-3, RSMo 1969.The objection was sustained and the records excluded by the ALJ.According to the offer of proof, the records would have shown that Weinbauer consulted with Dr. Alonso-Yague on several occasions between November 1976 and March 1977, and that Weinbauer reported that he had problems similar to those he testified to experiencing after the accident of August 29, 1977, such as numbness in his fingers and involuntary "bouncing" of his left arm.²

Grey Eagle advances a number of arguments in support of its contention that the exclusion of the records constituted error requiring remand of the case to the Commission for the admission of the records and reassessment of all of the evidence in their light.Preeminent among these are the claims that medical records do not come within the general scope of § 287.210, and particularly the "seven day rule" therein contained, that the records should be admissible to impeach Weinbauer's claims of previous good health, and that the records constituted admissions against Weinbauer's interest.

Grey Eagle's contentions that the records do not come within the statute are essentially that the statute does not apply to records of the employee's physician when offered by the employer and that the records are not a "medical report" as defined by § 287.210.³At the outset, we note that the portions of the statute quoted in the margin contemplate the offering of testimony of a physician, not his records.The records here were treated by the parties as having been qualified and, thus, admissible as "business records."§ 490.680, RSMo 1969....