Abt v. Mississippi Lime Co.

420 S.W.3d 689, 2014 WL 606560, 2014 Mo. App. LEXIS 159
CourtMissouri Court of Appeals
DecidedFebruary 18, 2014
DocketNo. ED 99779
StatusPublished
Cited by10 cases

This text of 420 S.W.3d 689 (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., 420 S.W.3d 689, 2014 WL 606560, 2014 Mo. App. LEXIS 159 (Mo. Ct. App. 2014).

Opinion

LAWRENCE E. MOONEY, Presiding Judge.

The claimant, Larry Abt, appeals the final award of the Labor and Industrial Relations Commission denying him permanent total disability (PTD) benefits and reimbursement for certain past medical expenses. The Commission determined that the claimant suffered only permanent partial disability as a result of his primary work injuries combined with his preexisting disabilities, and awarded benefits accordingly against the employer, Mississippi Lime Company, and the Second Injury Fund.1 In addition, the Commission awarded the claimant reimbursement for some of his past medical expenses, but denied reimbursement for certain other expenses.

[692]*692This is the second award rendered by the Commission in this case, which stems from the claimant’s January 2001 injuries, and the second appeal of the Commission’s award to this Court. The issue of whether the claimant suffered permanent total disability was conclusively decided in the Commission’s first award in this case, and that determination was not appealed by any party in the original appeal, Abt v. Mississippi Lime Co., 388 S.W.3d 571 (Mo.App.E.D.2012) (“Abt /”). Consequently, the fact that the claimant is permanently totally disabled has become the law of the case. The Commission was not free in its second award to attempt to circumvent that unchallenged determination by finding that the only possible cause of the claimant’s permanent total disability supported by substantial and competent evidence — the combination of the 2001 injuries and the claimant’s pre-existing conditions — resulted only in permanent partial disability.

We borrow much of the description of the facts and the medical evidence from Abt I without further citation. On January 16, 2001, the claimant was using a locomotive to transport rail cars between a loading area and a rail yard. Consistent with his usual practice, the claimant stood on the side of the locomotive while he drove it, and checked behind him to ensure that he did not derail the cars he was transporting. When the claimant looked forward again, he saw a truck stopped on the railroad tracks in the locomotive’s path. The claimant was unable to stop the locomotive before it collided with the truck. On impact, the claimant struck the locomotive, rolled off of it, and struck the truck before landing on the ground. As a result of the accident, the claimant sustained a degloving injury to his left calf that doctors repaired with surgery, injuries to his lower back, and fractured ribs (collectively the “primary injuries”). In a degloving injury, a section of skin is torn from the underlying tissue. The claimant returned to work for the employer in May 2001. After being hospitalized in 2005 with severe left leg swelling and cellulitis, the claimant quit working in December 2005, having been advised to do so by his primary-care physician. The claimant has not worked since that time. The claimant filed a claim for workers’ compensation benefits, and in 2011, an Administrative Law Judge (ALJ) held a hearing on the claim.

It is undisputed that the claimant sustained an accident during the course of his employment in January 2001, and that the claimant’s injuries are medically causally related to the January 2001 work injury. The ALJ identified three issues for hearing for a final award: 1) previously incurred medical aid; 2) the nature and extent of disability; and 3) liability of the Second Injury Fund.

At the hearing, the claimant and his wife testified, and the claimant introduced various medical records dated before and after the primary injuries. In addition to records relating to the primary injuries, the claimant introduced records concerning various injuries in 2005 to his spine, ankles, chest, right elbow, and both hands and wrists.

On October 23, 2005, Ste. Genevieve County Memorial Hospital admitted the claimant for approximately four or five days due to “left leg swelling problems.” Doctors administered a bilateral “[D]op-pler venous study” and diagnosed the claimant with left leg cellulitis and left lower leg lymphedema. The 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 [693]*693leg from November 1 to November 22, 2005, and Dr. Pearson for treatment of left leg swelling from October 23, 2005 to October 12, 2006.

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

Dr. Poetz examined the claimant again in December 2006 and prepared a written report dated March 8, 2007. Dr. Poetz stated, “[sijnce 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, “[the claimant] is Permanently and Totally Disabled as a result of the combination of the [primary injuries] 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 the claimant for the third time 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. He 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 that “[the claimant] remains Permanently and Totally Disabled as a result of the combination of the [primary injuries] and his pre-existing 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 the claimant’s 2005 injuries in his 2007 report, and that he did not recall whether he was aware of those injuries at the time. Dr. Poetz testified that his opinion of the 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.” The claimant also introduced the written report and deposition of vocational rehabilitation counselor Wilbur Swearingin.

The employer introduced Dr. Briccio Cadiz’s written report dated August 9, 2002. In the report, Dr. Cadiz stated that he reviewed “extensive records” of the claimant dated May 6, 1999 through January 10, 2002. Dr.

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420 S.W.3d 689, 2014 WL 606560, 2014 Mo. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abt-v-mississippi-lime-co-moctapp-2014.