Woodburn v. May Distributing Co., Inc., 17179

• Decision Date: 12 September 1991
• Docket Number: No. 17179,17179
• Citation: 815 S.W.2d 477
• Parties: James WOODBURN, Claimant-Respondent, v. MAY DISTRIBUTING CO., INC., Employer-Appellant.
• Court: Missouri Court of Appeals

Page 477

815 S.W.2d 477

James WOODBURN, Claimant-Respondent, v. MAY DISTRIBUTING CO., INC., Employer-Appellant.

No. 17179.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 12, 1991.

Carl S. Yendes, Lowther, Johnson, Joyner, Lowther, Cully & Housley, Springfield, for employer-appellant.

Raymond E. Whiteaker, Brent S. Bothwell, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for claimant-respondent.

PARRISH, Presiding Judge.

May Distributing Co., Inc., (employer) appeals from the Labor & Industrial Relations Commission's (the commission) finding of liability arising from a claim for compensation filed by James Woodburn (claimant). An administrative law judge found liability on the part of the employer. The commission reviewed and affirmed that finding pursuant to § 287.480. ¹ This court affirms.

Claimant was employed as a delivery man. His duties included driving a truck to deliver beef carcasses to customers. He also assisted in unloading the beef carcasses he delivered.

The claim for compensation that is the basis for this appeal arose from injuries that were alleged to have occurred on October 3, 1988, and October 10, 1988. While making a delivery on October 3, claimant assisted a customer's employee in unloading the beef carcasses claimant had delivered. The employee used a forklift to move the carcasses from claimant's truck to a refrigerated room. Claimant walked along side the forklift and steadied the beef carcass that was being transported in order to prevent the carcass from sliding off of the forklift. After completing the delivery, claimant returned to his place of employment, cleaned up and drove to his residence--"about a 30-minute drive." As he was driving home, claimant experienced pain in his lower back. That evening claimant attended a birthday celebration with members of his family at a restaurant. He returned home at approximately 8:30 p.m. He testified, "We sat around and watched t.v., and we talked because some of them had come back to the house. We sat and watched t.v., and then I went to bed." Claimant stated that nothing unusual happened that evening. The next day he felt worse.

On October 4, when claimant got out of bed, he experienced pain in his lower back and buttocks. As he was driving to his place of employment, his "right leg went numb." Claimant was scheduled to make a delivery to Kansas City. He decided that he was unable to make that delivery. Claimant went to his place of employment. He called his manager and told the manager of the problem he was experiencing with his back, that he had numbness in his right leg, and that he needed to go to a hospital emergency room to have it checked. The manager inquired whether claimant could make the Kansas City delivery. Claimant told him that he could not.

Claimant went to the emergency room of a Springfield, Missouri, hospital. He saw a physician who prescribed pain medication and instructed claimant not to work for two days. Claimant returned to his residence. He called his manager and reported the results of his visit to the hospital emergency room.

Claimant felt no better two days later. He returned to the hospital emergency room. The physician he saw prescribed a muscle relaxant and instructed claimant not to work for two additional days. Claimant took the written instructions he had received from his physician to his manager.

Claimant's manager instructed claimant to call Allen May, the owner of the company. Claimant called Mr. May. Claimant reported what had happened, and Mr. May instructed claimant to call him before returning to work.

On the following Monday, October 10, claimant returned to work. He had talked to Mr. May by telephone earlier that morning. Mr. May told claimant that the company was not going to pay for claimant's medical bills because Mr. May did not think his injuries occurred at work. Claimant testified that Mr. May told him "if I would have notified them, they would have referred me to a company doctor, and told me that if I ever missed another Tuesday, I would be out of a job."

Claimant then made another delivery to the same place where he had made the October 3 delivery. Claimant testified:

As usual, we off loaded the truck and then we were--that day there was just three of us. There was--one of the guys that was there was--he was injured--I can't remember who he was, but he was just holding the hooks, not helping with the beef. He was just holding the hooks for us to put the beef on, because the order had got messed around, and the hind quarters weren't with the front quarters, we had to jostle back and forth between the rows to get the right sides together.

And was down to about the last two pieces or so on the last pallet, and the board broke under my foot as I was going to pick up the piece of meat off the pallet. It was a front quarter. And I dropped the meat back down on the pallet. I repositioned my foot, and I continued to do my job.

Claimant was asked the following questions and gave the following answers:

Q. Did you feel any pain at the time your foot went through the pallet?

A. Yes.

Q. Where did you feel the pain?

A. At the knee and back, but it wasn't, you know, a bad pain. It was just like maybe I pulled something and a few days it would be better.

Claimant returned to the employer's place of business and reported the incident to his manager. Claimant cleaned up and went home. He continued to experience pain in his back that evening. He returned to work the next morning, October 11, and proceeded to drive to Kansas City and make deliveries. On his way to Kansas City, the truck claimant was operating developed mechanical problems in the refrigeration unit. At the first delivery stop for the day, claimant had called his manager. At that time he told the manager that his back "was getting worse."

After claimant returned to his home that evening, he continued experiencing pain. He called his manager and asked "for the name of the company doctor or the facility." The manager told claimant to call Mr. May. Mr. May told claimant that he didn't care what doctor claimant went to, "he wasn't going to pay for the bill."

Claimant called the hospital where he had gone to the emergency room previously and obtained a list of the names of three doctors. He then consulted Dr. Rogers. He was given medication, advised to schedule physical therapy, and told not to work for four weeks. Claimant advised his manager of the instructions he had received. He continued to receive medical treatment and in January of the following year was advised that he needed surgery.

Following the filing of a claim for compensation (and an amended claim), a hearing was held before an administrative law judge. The employer denied liability. The administrative law judge entered an award for claimant against the employer. The award was denominated "Temporary or Partial Award" finding temporary total disability and the need for further medical care. The claim was submitted to the commission for review "as provided by Section 287.480 Revised Statutes of Missouri." The commission affirmed and adopted the award of the administrative law judge "for all purposes."

The employer filed a timely notice of appeal pursuant to § 287.495. Claimant filed a motion to dismiss the appeal contending that this court does not have jurisdiction for appellate review "because the decision appealed from is not a final judgment." Claimant suggests that the award was a "temporary or partial" award made pursuant to § 287.510 and "[t]here is no authority for judicial review of a temporary or partial award made pursuant to RSMo. Section 287.510." The motion to dismiss was ordered to be taken with the case for determination.

The employer contends that the commission's award, although denominated as a "Temporary or Partial Award," is a final determination of whether the employer has liability for payment of compensation benefits and, for that reason, is appealable. Claimant argues that the award was a temporary award and there is no statutory authority for appellate review of a temporary award.

This court's appellate jurisdiction is established by Mo. Const. art. V, § 18, that provides, as is applicable here:

All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judical and affect private rights, shall be subject to direct review by the courts as provided by law; ....

The statute applicable to appellate review of workers' compensation awards is § 287.495. It states, in pertinent part:

1. The final award of the commission shall be conclusive and binding unless either party to the dispute shall, within thirty days from the date of the final award, appeal the award to the appellate court having jurisdiction in the area in which the accident occurred....

2. The provisions of this section shall apply to all disputes based on claims arising on or after the August 13, 1980.

This court has previously found that it had jurisdiction to review awards denominated by the commission as "temporary or partial award," but which involved single issues that had been submitted and accepted by the commission for review in accordance with § 287.480 (and its predecessor statute). The issues were critical to each case's final resolution and were binding on parties who were otherwise without timely appellate recourse. Under those circumstances appellate review was permitted by means of the procedure provided in § 287.495 (or § 287.490 for claims that arose before August 13, 1980). See Smith v. Ozark Lead Co., 741 S.W.2d 802 (Mo.App.1987), for a discussion of this issue at pages 805-07.

The commission has likewise recognized the appropriateness of expediting appeals of the crucial issue of liability in cases that must otherwise remain open to permit payments of compensation over relatively long terms. In 1975 the commission issued its...