Blankenship v. Columbia Sportswear

875 S.W.2d 937, 1994 Mo. App. LEXIS 808, 1994 WL 197978
CourtMissouri Court of Appeals
DecidedMay 20, 1994
DocketNo. 19073
StatusPublished
Cited by2 cases

This text of 875 S.W.2d 937 (Blankenship v. Columbia Sportswear) 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
Blankenship v. Columbia Sportswear, 875 S.W.2d 937, 1994 Mo. App. LEXIS 808, 1994 WL 197978 (Mo. Ct. App. 1994).

Opinion

CROW, Judge.

Appellant, Vicki Blankenship, filed a claim for compensation under The Workers’ Compensation Law, chapter 287, RSMol986, as amended. Following an evidentiary hearing, an administrative law judge (“ALJ”) of the Division of Workers’ Compensation entered an award denying the claim. Appellant thereupon applied for review by the Labor and Industrial Relations Commission (“the Commission”). It entered a “Final Award Denying Compensation,” affirming the ALJ’s award. Appellant brings this appeal from the Commission’s award.

Appellant’s claim alleged her back was injured in a work-related accident on August 13, 1990.

The ALJ, after a meticulous review of the evidence, found Appellant failed to prove (a) she had a work-related accident on the alleged date, or (b) the extent, if any, that her existing back problems were caused by work-related activities on the alleged date. The Commission incorporated the ALJ’s findings in its award.

We review the award of the Commission, not that of the ALJ. Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 201[1] (Mo.App.W.D.1991); Richardson v. Falcon Products, Inc., 739 S.W.2d 596, 597[1] (Mo.App.E.D.1987).

Our review is governed by Mo. Const, art. V, § 18 (1945, amended 1976), and [938]*938§ 287.495, RSMol986.1 From those sources, additional principles have evolved. Rector v. City of Springfield, 820 S.W.2d 639, 640 (Mo.App.S.D.1991); Causey v. McCord, 774 S.W.2d 898, 899 (Mo.App.S.D.1989). In reviewing questions of fact, an appellate court’s inquiry is limited to whether, upon the whole record and considering the evidence in the light most favorable to the Commission’s findings, the Commission could have reasonably made such findings and reached the result it did. Lawson v. Emerson Electric Co., 833 S.W.2d 467, 471 (Mo.App.S.D.1992); Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921, 925[3] (Mo.App.S.D.1985). The appellate court disregards evidence which might support a finding different from that of the Commission, even though a contrary finding would be supported by the evidence. Rector, 820 S.W.2d at 640[3]; Phillips v. Ozark Bank, 803 S.W.2d 662, 663 (Mo.App.S.D.1991).

The Commission (by incorporating the ALJ’s findings into its award) found that Appellant first sought medical attention for back problems on January 11, 1983, seven and a half years before the alleged accident on which the instant claim is based. The records of Dr. Mark Kasten, Appellant’s “family doctor,” show Appellant complained to him that date about back pain which had been constant for two weeks.

The Commission found Appellant complained again to Dr. Kasten on August 17, 1984, about low back pain which had persisted a week.

Appellant was struck in the back by a canoe on a float trip in July, 1985. She saw Dr. Kasten about that on July 17, 1985, complaining of bruising and swelling over the sacrum.

The Commission found Appellant complained again to Dr. Kasten about low back pain on December 12, 1986. Dr. Kasten’s records show a diagnosis of “back strain.”

The Commission found Appellant complained again to Dr. Kasten about back pain on November 23,1987. Dr. Kasten’s records show the pain had persisted approximately three weeks. Dr. Kasten attributed the complaint to “acute back strain.” Appellant had a follow-up visit to Dr. Kasten on December 1, 1987, regarding that condition.

On April 30,1990, three and a half months before the alleged accident on which the instant claim is based, Appellant was working for Columbia Sportswear (“Sportswear”). While at work that date, Appellant slipped and fell. Appellant testified she felt and heard a “pop” in her low back. Two days later, her back was still painful, so she saw Sportswear’s “company doctor.”

Appellant had low back pain continuously after the April 30, 1990, fall. On July 25, 1990, she consulted Dr. Donald Metrajohn, a chiropractor. Her “patient case history” in Dr. Metrajohn’s records shows her major complaint as “back pain.” The case history also shows: “How long have you had this condition? 8 months[.]”

The evidence is in conflict regarding the date of the alleged accident on which the instant claim is based. As reported earlier, Appellant’s claim showed the date as August 13, 1990. However, as shall become evident infra, the date may have been August 14, 1990.

Appellant testified she was operating a sewing machine at Sportswear on the morning of August 13, 1990. Her shift began at 7:30. Around 9:00, the “lower part” of her back was “hurting real bad.” At break time, 9:20, Appellant obtained permission from a company official to leave work and go to Dr. Metrajohn.

[939]*939He “worked with” Appellant’s back. She then returned to work, arriving around 11:00 a.m.

By 2:00 p.m., Appellant was “really having some difficulty” with back pain. It was extending into her left hip. Appellant testified, “I guess a little after 2:00 I had a real sharp pain in my back and it was so sharp that it about knocked my breath — it took my breath.” Then, said Appellant, her legs began going numb. Appellant ceased working and, after a few minutes, walked from her work station to a restroom. Later that afternoon, a co-worker drove Appellant to a hospital where she was seen by a doctor in the emergency room.

The hospital record shows Appellant arrived at 4:46 p.m., August 14, 1990. Confronted at trial with the discrepancy between her testimony and the hospital record, Appellant confirmed she was taken to the hospital immediately upon leaving work and conceded, “I really don’t know [whether the date was August 18 or 14].”

The emergency room doctor made a diagnosis of: “Muscle strain of the lumbosacral area.” The doctor prescribed medication, bed rest and warm moist packs to the painful area.

The records of Dr. Metrajohn, the chiropractor, show Appellant saw him several times between her first visit on July 25,1990, and the date of the alleged accident on which the instant claim is based. The Commission found:

“Dr. Metrajohn’s records indicate [Appellant] had a total of 15 appointments from July 27, 1990 through August 20, 1990. Nine of these appointments were scheduled prior to [Appellant’s] trip to the emergency room on August 14,1990; one of the visits was on the morning before she went to the hospital; and five visits were subsequent to her trip to the emergency room. Although two of her visits prior to August 13th and 14th refer to cervical pain, almost all of the visits both before and after her alleged accident date refer to moderate pain at either the level of the sacrum or the L4 L5.”

Appellant does not challenge those findings.

Appellant did not return to work after August 13 (or 14), 1990. About a week after the trip to the emergency room, she saw Dr.

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Bluebook (online)
875 S.W.2d 937, 1994 Mo. App. LEXIS 808, 1994 WL 197978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blankenship-v-columbia-sportswear-moctapp-1994.