Choate v. Lily Tulip, Inc.

809 S.W.2d 102, 1991 Mo. App. LEXIS 458, 1991 WL 41778
CourtMissouri Court of Appeals
DecidedMarch 27, 1991
DocketNo. 16996
StatusPublished
Cited by5 cases

This text of 809 S.W.2d 102 (Choate v. Lily Tulip, Inc.) 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
Choate v. Lily Tulip, Inc., 809 S.W.2d 102, 1991 Mo. App. LEXIS 458, 1991 WL 41778 (Mo. Ct. App. 1991).

Opinion

MAUS, Presiding Judge.

In this proceeding under The Workers’ Compensation Law, the Administrative Law Judge awarded claimant, Burney S. Choate, permanent partial disability of 15 percent of his right elbow, 20 percent of his right shoulder, and 5 percent of the body as a whole based upon a cervical spine injury. He added a multiplicity of injury factor of 10 percent for 97.9 weeks. Upon claimant’s appeal, the Labor & Industrial Relations Commission (Commission) affirmed the award of the Administrative Law Judge. The claimant appeals and asks that the cause be remanded to the Commission, with instructions, for reconsideration.

The employer, Lily Tulip, Inc., was engaged in the manufacture of paper and plastic products. It salvaged certain plastic materials by grinding. The ground material was placed in cardboard boxes 3 feet square. The boxes were stored in a room. [103]*103They were stacked in various numbers, as high as three or four. The ground material was used by selecting boxes by color of the material so that the salvaged material, when blended, would be a desired color.

On April 2, 1984, claimant was a blender operator. His duties included selecting the boxes of material as it was to be used in the salvage blender. In the course of doing so, he would often go to the top of the stacked boxes. There was evidence he descended from the top by “skidding” or stair-stepping down the side of the stacked boxes. On April 2, 1984, the claimant fell from the boxes or from a box.

The record presents two different accounts of claimant’s fall. The claimant testified:

“Q How high would that have made you?
A That would have been close to— lacking few inches being three foot. It would be close to nine feet, if you’re talking about my feet.
Q Nine feet?
A Yes.
Q And then did you step on empty boxes or what did you do to make you fall?
A Yes. I was walking — I was surprised that Charlie and the forklift driver leaving and leaving me up there with no way down. So, I begin to look to see if I could find a way to stairstep down, which sometimes I had done in the past; and as a result, when I stepped — when I stepped on these boxes, they were empty, and they collapsed with me. It was worse than falling. I was shot at a right angle, and I fell at a right angle.”

He said that he fell a little before 1:00 p.m. He was unconscious until approximately 1:30 p.m. and when he came to, he was lying on the floor. He added, “I was completely paralyzed. I couldn’t move nothing. The instinct says get up, and I couldn’t. And the first thing I remember Danny — I didn’t recognize him as Danny then — was sitting besides me and saying things, asking me things. And I — I was not around enough to know what he was saying or wasn’t saying. I just remember saying T need air; I need air.’ ” He testified that Danny Medcalf helped him up and to a position in front of a fan. He was in a semi-conscious condition. Supervisor Charles Dixon arrived. Claimant was placed on Dixon’s Cushman electric cart and taken to a nurse’s station.

Danny Medcalf testified that he and another employee were riding a Cushman that was used to pick up spare parts. When he and the other employee drove back into the building where the boxes were kept, they heard someone “hollering for help”. He and the other employee found the claimant on the floor with his head propped up against the boxes. He could not remember the name of the other employee that was with him. He continued, “The nurse got there, and the supervisor in charge had another Cushman, and they was, you know — the nurse checked him over. And anyway she had called an ambulance, and they set him on the back of this Cushman to take him out, you know, to where the ambulance was going to pull up to the Lily Tulip at.”

On the other hand, retired co-employee Chester Ward testified that shortly before the fall, a little after 1:00 p.m., he was working with the claimant in the storage room. Ward left the room to go to the grinder and returned in about 10 minutes. When he returned, he found the claimant standing and coherent. Claimant said that he had fallen and hurt his arm. Danny Medcalf was not there. He said that there was an empty box next to the stacked boxes. Without objection, Ward testified, “Well, he didn’t actually fall because he slid down off of there and into this box and then fell on the floor.” Shortly after Ward found the claimant, supervisor Dixon arrived on a cart.

Dixon testified that he was riding a cart through the area. He saw the claimant and Ward. When he talked to the claimant, “[h]e told me he was climbing down off the boxes, and he stepped on an empty box and it gave way with him and he fell, he had hurt his elbow.” He did not recall Danny Medcalf being there. The claimant [104]*104was taken on Dixon’s cart to the nurse’s station.

The claimant was then seen by DeAr-mond Moore, M.D. Dr. Moore caused various x-rays to be made and placed claimant’s right arm in a sling. Claimant was referred to James Shaeffer, M.D., an orthopedist.

On April 3, 1984, claimant was examined and treated by Dr. Shaeffer. Dr. Shaef-fer’s diagnosis was “he had incurred a val-gus stress to his elbow which pulled loose some ligaments with a little bone chip on the medial side of the elbow, and then had a compression fracture of the radius on the lateral side of the elbow.” He periodically saw the claimant until January 7, 1985. He prescribed physical therapy for the claimant. During the course of treatment, claimant complained of headaches and pain in his elbow and shoulder. At claimant’s request, Dr. Shaeffer x-rayed claimant’s elbow and cervical spine on May 18, 1984. The elbow fracture was healing and there was nothing abnormal on the x-ray of the cervical spine. He unsuccessfully attempted to persuade claimant to return to work in July 1984. Dr. Shaeffer rated claimant’s disability at 15% of the elbow and 20% of the shoulder. Dr. Shaeffer referred the claimant to his family physician, Dr. Cunningham, for an examination in reference to his headaches.

Dean Cunningham, M.D., had been claimant’s family doctor since 1957. He had treated claimant for various conditions and accidents. He saw him in May 1979 with shoulder complaints resulting from a fall. The conditions for which he had treated the claimant included the following: Hypertension, Prostatitis, Obesity, Anxiety, and Probable Functional Gastrointestinal Disorder. The claimant had also repeatedly complained of dizziness. Dr. Cunningham did not treat the claimant for any injuries resulting from the 1984 fall and he did not rate the claimant. When Dr. Shaeffer referred claimant to Dr. Cunningham for his complaints of headaches, Dr. Cunningham caused a CT scan to be made of claimant’s head “to make sure there was no subdural or anything that he might have as a result of this fall.” The CT scan was normal. In reference to claimant’s complaints from the fall, Dr. Cunningham testified: “Well, if Mr. Choate is complaining now of headaches and dizziness, pain in his arm and shoulder, I don’t know of any reason other than his fall in ’84 that he might have it.”

Charles Ash, M.D., an orthopedist, examined the claimant on December 10, 1984. He rated the claimant as having 5% disability of the shoulder. In his opinion, claimant was able to work.

On September 30, 1986, claimant was examined by William P. Folck, M.D., of Kansas City. Claimant gave Dr.

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Bluebook (online)
809 S.W.2d 102, 1991 Mo. App. LEXIS 458, 1991 WL 41778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/choate-v-lily-tulip-inc-moctapp-1991.