Williams v. City of Ava, 22201

• Citation: 982 S.W.2d 307
• Decision Date: 30 December 1998
• Docket Number: No. 22201,22201
• Parties: Ronnie L. WILLIAMS, Claimant-Appellant, v. CITY OF AVA, Employer-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 307

982 S.W.2d 307

Ronnie L. WILLIAMS, Claimant-Appellant, v. CITY OF AVA, Employer-Respondent.

No. 22201.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 30, 1998.

William W. Francis, Jr. and Jacinda A. Thudium, Springfield, for Appellant.

William F. Ringer, Evans & Dixon, Kansas City, for Respondent.

PHILLIP R. GARRISON, Chief Judge.

Ronnie L. Williams ("Employee") was employed as a sanitation engineer with the City of Ava ("Employer"). His duties included the continual lifting and moving of heavy residential and industrial trash. Employee sustained two separate injuries in the course of his employment, and he filed separate claims for workers' compensation which were later consolidated by agreement of the parties.

Employee was first injured on the job on December 3, 1992, when he was pushing a dumpster sideways and his foot slipped on some loose gravel. He felt pain in his lower back near his tail bone and was sent to Employer's physician, Dr. Mao S. Chern, who prescribed pain medication. Dr. Chern then sent Employee to an orthopedic surgeon, Dr. James Shaeffer. Two months later, on February 2, 1993, Dr. Shaeffer sent Employee back to work with no restrictions. Employee testified that he was fully able to perform his job at that time, although he had to make some minor adjustments such as being more careful with the way he lifted and moved objects and using his legs instead of his back to absorb the shock when dismounting from the truck.

On May 3, 1993, Employee was again injured on the job as he was sliding a box of industrial trash across a concrete loading dock. While he was pushing the box, "[his] back bowed backwards. There was an extreme pop that you could hear quite a ways away, and [he] went to [his] knees and it hurt extremely bad." He felt pain in his lower back (slightly higher than with the first injury) and in his right leg. Once again, Employee was sent to see Employer's physician, Dr. Chern, who again prescribed pain medication and sent Employee to Dr. Shaeffer. Employee remained under the care of Dr. Shaeffer for approximately four months. Employee's condition apparently did not improve while under the care of Dr. Shaeffer, and Employer transferred his treatment to the care of Dr. O. Gerald Orth.

Dr. Orth first saw Employee on September 20, 1993. At that time, Dr. Orth recommended that Employee undergo physical therapy and possibly take some additional non-steroidal medication. He further recommended that Employee return to full-time employment four hours a day doing light-duty work with a gradual resumption of his previous job. Thereafter, Employee returned to work subject to those restrictions and worked full-time until October 18, 1993, at which time he "just couldn't do it" any longer. He returned to see Dr. Orth on November 3, 1993. At that time, Dr. Orth opined that Employee had reached "maximum medical improvement." He again released Employee to return to work subject to the restrictions of no lifting over 20 pounds, no truck driving, and no frequent twisting or bending. Employee, however, did not return to work of any kind after this visit with Dr. Orth.

The Administrative Law Judge ("ALJ") who heard Employee's claims found, through a stipulation of the parties, that both of Employee's injuries occurred while he was employed by Employer and in the course and scope of such employment. The ALJ, however denied Employee's claim for permanent disability with regard to the initial injury sustained on December 3, 1992. In doing so, the ALJ found that the injury was of a temporary nature which resolved without producing residual permanent disability. The ALJ also found that Employer had paid all the medical expenses and temporary disability compensation that was attributable to that injury.

With regard to the second injury, the ALJ found that Employer had provided adequate temporary disability compensation in the amount of $5,028.57, representing 25 1/7 weeks of benefits, because Employee had reached "maximum medical improvement." ¹ The ALJ also found that there was "no necessity for the employer and insurer to provide additional or future medical care resulting from the accident and injury of May 3, 1993." Finally, the ALJ found that, as a consequence of the second injury, Employee sustained a permanent partial disability of 50 percent to the body as a whole, referable to his lumbar spine, and therefore, Employee was awarded the sum of $40,000.00, representing 200 weeks of permanent partial disability to the lower back. The Labor and Industrial Commission (the "Commission") reviewed and affirmed the ALJ's decision, thereby adopting the ALJ's findings of fact and award. Employee now appeals.

In reviewing a workers' compensation award, we review the findings of the Commission and not those of the ALJ. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 852 (Mo.App. S.D.1995). Here, the Commission's award attached and incorporated the ALJ's award and decision. We, therefore, consider the findings and conclusions of the Commission as including the ALJ's award. Brown v. Treasurer of the State, 795 S.W.2d 479, 482 (Mo.App. E.D.1990). 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. Walsh v. Treasurer of the State, 953 S.W.2d 632, 635 (Mo.App. S.D.1997); 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. Walsh, 953 S.W.2d at 635; Davis, 903 S.W.2d at 571.

On this appeal, Employee contends that the Commission erred in affirming the award of the ALJ that denied him permanent and total disability compensation because "[t]here was no substantial and competent evidence to support the finding by the Commission that the testimony of Employee was not credible or believable regarding his self-imposed limitations and subjective complaints." Specifically, Employee contends that the Commission erred in finding that Employee did not have to periodically lie down throughout the day in order to relieve his pain because this testimony was uncontradicted and unimpeached.

In affirming the determination that Employee was not permanently and totally disabled, the Commission incorporated the following language of the ALJ:

The determination of whether [Employee] is permanently and totally disabled may be resolved in light of determining whether he is required to lay [sic] down every day. Notably, the vocational experts [that evaluated Employee] agree that, if [Employee] is required to lay [sic] down every day, he is not employable in the open and competitive labor market.... [Employee's] claim of permanent total disability is premised on the assertion of his own subjective, self-serving complaints and self-imposed limitations ... [h]owever, I do not find [Employee's] self-imposed limitations and subjective complaints as being credible or believable, particularly in light of the treating records of Dr. Shaeffer and the medi[c]al testimony of Dr. Orth.... The two treating physicians, Drs. Shaeffer and Orth, who I find credible, declined to place specific limits or restrictions on [Employee's] ability to sit,...