Abt v. Mississippi Lime Co.

388 S.W.3d 571, 2012 WL 6130271, 2012 Mo. App. LEXIS 1547
CourtMissouri Court of Appeals
DecidedDecember 11, 2012
DocketNo. ED 98282
StatusPublished
Cited by11 cases

This text of 388 S.W.3d 571 (Abt v. Mississippi Lime Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abt v. Mississippi Lime Co., 388 S.W.3d 571, 2012 WL 6130271, 2012 Mo. App. LEXIS 1547 (Mo. Ct. App. 2012).

Opinion

PATRICIA L. COHEN, Judge.

Introduction

Larry Abt (Claimant) appeals from the final award of the Labor and Industrial Relations Commission (Commission) denying him permanent total disability benefits from Mississippi Lime Company (Employer) 1 and the Second Injury Fund (Fund), awarding him permanent partial disability [574]*574benefits from Employer and the Fund,2 and ordering Employer to reimburse Claimant for certain medical expenses. Claimant asserts that the Commission erred in: (1) denying him reimbursement of his 2005 and 2006 medical expenses; (2) rejecting the 2007 and 2010 reports of Dr. Robert Poetz; (3) rejecting the 2007 report of Wilbur Swearingin; and (4) finding that Claimant’s permanent total disability resulted solely from a subsequent deterioration of his preexisting conditions.3 We affirm in part, reverse in part, and remand.

Factual and Procedural Background

On January 16, 2001, Claimant was using a locomotive to transport rail cars between a loading area and a rail yard. Consistent with his usual practice, Claimant was “standing on the side of’ the locomotive while driving it and looking behind him to ensure that he did not derail. When Claimant looked forward, he observed a truck stopped in the locomotive’s path on the railroad tracks. Claimant was unable to stop the locomotive before it collided with the truck. Claimant’s body hit the truck before he “ended up on the ground.” As a result of the accident, Claimant sustained a degloving injury4 to his left calf that doctors repaired with surgery, injuries to his lower back, and fractured ribs (collectively, the “primary injury”). In May 2001, Claimant returned to work for Employer.

Claimant filed a claim for workers’ compensation benefits in 2003, seeking “all compensation as provided in the Missouri Workers’ Compensation Law, relating to [the primary injury].” In 2011, an Administrative Law Judge (ALJ) held a hearing on the claim. Claimant and Employer advised the ALJ that the claim involved three issues: (1) the “nature and extent of disability, permanent total disability versus permanent partial disability”; (2) the Fund’s liability; and (3) Employer’s liability for medical expenses Claimant incurred from Physicians Health and Rehab from 2002 through 2004, Ste. Genevieve County Memorial Hospital in 2005, Mid America Rehab in 2005, and Dr. Richard Pearson in 2005 and 2006.

A. Claimant’s Evidence

1. Medical Records

At the hearing, Claimant introduced various medical records dated before and after the primary injury. In addition to records relating to the primary injury, Claimant introduced records concerning various 2005 injuries. According to the records, doctors administered the following tests to Claimant in 2005:

1) January 2005: thoracolumbar x-ray;
2) February 2005: x-ray of left ankle;
3) March 2005: MRI of right ankle;
4) April 2005: chest x-ray;
5) May 2005: x-ray of left hand and wrist;
6) October 2005: x-ray of right elbow, wrist, and hand; and
7) October 2005: x-rays of lumbar, thoracic, and cervical spine.

On October 23, 2005, Ste. Genevieve County Memorial Hospital admitted Claimant for approximately four or five days due to “left leg swelling problems.” [575]*575Doctors administered a bilateral “[D]op-pler venous study” and diagnosed Claimant with left leg cellulitis and left lower leg lymphedema. Claimant introduced medical records and bills of Ste. Genevieve County Memorial Hospital for treatment of his left leg from October 23, 2005 to November 1, 2005, Mid America Rehab for occupational therapy for his left leg from November 1 to November 22, 2005, and Dr. Pearson for treatment of left leg swelling from October 23, 2005 to October 12, 2006.

2. Dr. Poetz's Reports and Deposition

Claimant introduced the written reports and deposition of Dr. Robert Poetz, an osteopathic physician and surgeon. Dr. Poetz examined Claimant in June 2004 and prepared a written report dated August 23, 2004. Dr. Poetz opined that the primary injury was “a substantial and contributing factor” to various PPDs, some of which were preexisting. Dr. Poetz recommended, among other things, that Claimant avoid “prolonged sitting, standing, walking, bending, stopping, twisting, squatting, climbing or kneeling[,] heavy lifting and strenuous activity.”

Dr. Poetz examined Claimant in December 2006 and prepared a written report dated March 8, 2007. Dr. Poetz stated: “Since the patient’s last evaluation he states he was working full duty; however his left leg continued to swell. He was hospitalized around October 2005 for lym-phodema [sic] at Ste. Genevieve County Hospital and was treated with antibiotics.” Dr. Poetz concluded: “[Claimant] is Permanently and Totally Disabled as a result of the combination of the [primary injury] and his pre-existing conditions. He is and will be permanently and totally unemployable in the open labor markets.” (emphasis in original).

Dr. Poetz examined Claimant in August 2010 and prepared a written report dated October 7, 2010. Dr. Poetz stated that he had reviewed the medical records from Ste. Genevieve County Memorial Hospital. Dr. Poetz also reviewed the following 2005 records: thoracolumbar x-ray (January 2005); left foot and ankle x-ray (February 2005); right ankle MRI (March 2005); chest x-ray (April 2005); left hand and wrist x-ray (May 2005); lumbar, thoracic, and cervical spine x-rays (October 2005); right elbow, hand, and wrist x-ray (October 2005); and “bilateral venous Doppler” (October 2005). Dr. Poetz concluded: “[Claimant] remains Permanently and Totally Disabled as a result of the combination of the [primary injury] and his preexisting conditions. He is and will be permanently and totally unemployable in the open labor market.” (emphasis in original).

In a 2010 deposition, Dr. Poetz testified that he did not refer to Claimant’s 2005 injuries in his 2007 report and that he did not recall whether he was aware of the injuries at the time. Dr. Poetz testified that his opinion of Claimant’s disability changed from his 2004 report to his 2007 and 2010 reports because “the longer he’s having the disabilities, the worse the prognosis becomes.”

3. Mr. Swearingin’s Report and Deposition

Claimant introduced the written report and deposition of vocational rehabilitation counselor Wilbur Swearingin. Mr. Swear-ingin examined Claimant on April 18, 2006 and prepared a written report dated August 13, 2007. Mr. Swearingin stated that he reviewed several of Claimant’s medical records from 1999 through 2003 and Dr. Poetz’s 2004 and 2007 opinions. Mr. Swearingin reported:

[Claimant] has massive swelling of his left lower leg, must keep it elevated and [576]*576utilize a lymphedema pump two to three times a day to control the swelling. As long as he is inactive, [Claimant’s] back pain is manageable. Given the chronic swelling of [Claimant’s] leg, his need to keep it elevated, and use a lymphedema pump, along with his chronic back pain, [Claimant] is neither placeable nor employable in the open labor market.

Mr.

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388 S.W.3d 571, 2012 WL 6130271, 2012 Mo. App. LEXIS 1547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abt-v-mississippi-lime-co-moctapp-2012.