Cole v. Alan Wire Co.

521 S.W.3d 308, 2017 WL 2774613, 2017 Mo. App. LEXIS 639
CourtMissouri Court of Appeals
DecidedJune 27, 2017
DocketNo. SD 34690
StatusPublished
Cited by5 cases

This text of 521 S.W.3d 308 (Cole v. Alan Wire 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
Cole v. Alan Wire Co., 521 S.W.3d 308, 2017 WL 2774613, 2017 Mo. App. LEXIS 639 (Mo. Ct. App. 2017).

Opinion

DON E. BURRELL, J.

Mark Anthony Cole (“Claimant”) appeals the final award of the Labor and Industrial Relations Commission (“the Commission”) denying his workers’ compensation claim that arose from a 2014 work accident in Sikeston at Alan Wire Company, Inc. (“Employer”).1 See section 287.495.1.2 Claimant’s first two points claim “[t]he Commission erred in finding that the accident was not the prevailing factor in causing the medical conditions and disability ... because the Commission”: (1) “exceeded its jurisdiction” by “exercising an overly technical and parsed analysis” so as to not credit the opinion of Claimant’s medical expert; and (2) disre[310]*310garded the treating doctor’s testimony on the ground that the doctor’s “explanation lacked the language of the appropriate statutory test.” Claimant’s third point contends “[t]he Commission exceeded its jurisdiction by entering a final award because the issue of medical causation was not properly resolved and a temporary award should have been entered.”

Because Claimant’s challenges to the Commission’s jurisdiction in points 1 and 3 are not specific, and the contentions are not developed in Claimant’s arguments so as to identify how the Commission exceeded its statutory jurisdiction, we consider these portions of those points abandoned. See Whiteley v. City of Poplar Bluff, 350 S.W.3d 70, 77 n.4 (Mo. App. S.D. 2011),3 And despite Claimant’s insis tence that he is not attempting to re-litigate medical causation before this court, the remaining contentions in Claimant’s points distill to an argument that the Commission erred by not adopting Claimant’s view of the conflicting evidence. Our obligation to examine the whole record does not alter the deference we must afford the Commission in resolving conflicting medical testimony given by various expert witnesses. See Malam v. State, Dep’t of Corr. 492 S.W.3d 926, 928 (Mo. banc 2016). As a result, the Commission’s deci sion to deny compensation is not contrary to the overwhelming weight of the evidence and must be affirmed.

Applicable Principles of Review and Governing Law

A reviewing court may modify, reverse, remand for rehearing, or set aside a workers’ compensation award upon a finding that: (1) the commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the commission’s factual' findings do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Section 287.495.1[.] “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).
Questions of law are reviewed de novo. Pierce v. BSC, Inc., 207 S.W.3d 619, 621 (Mo. banc 2006). This Court must defer to the commission’s findings on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence. Treasurer of State-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013). The determination of whether an accident is the “prevailing factor” causing a claimant’s condition is an inherently factual one. Maness v. City of De Soto, 421 S.W.3d 532, 539 (Mo. App. 2014). Although the commission’s decision is afforded substantial deference, this Court must still “examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton, 121 S.W.3d at 222-23.

Malam, 492 S.W.3d at 928 (footnote omitted).4

[311]*311Evidentiary Summary and Procedural History

Claimant and counsel for the parties appeared before an administrative law judge (“the ALJ”) in September 2015 for the presentation of evidence on “a request for a temporary award.” The issues for determination were whether a work accident occurred, and if so, whether it was the medical cause of Claimant’s injuries. Claimant presented claims dependent upon a favorable determination of these issues for “previously incurred medical aid[,]” “future medical aid[,]” and 15 weeks of temporary total disability payments. Employer “request[ed] that if all issues are found against [Claimant], then a temporary award shall be converted into a final award.”

Claimant testified that he was 47 years old at the time of the hearing, and he had worked' in various occupations after being honorably discharged from the military .in 1990. He became disabled for about five years as the result of Graves’ disease, but he “ma[d]e a recovery” and went “back to work[,]” He eventually began working in a job where he operated a forklift, and during that period he suffered a back injury that caused him to experience pain going down into both legs that felt “like a tingling problem, like a burning almost.” He did not file a workers’ compensation claim or receive a work-related settlement for that injury.

Thereafter, Claimant worked at other jobs without experiencing pain or swelling in his right knee. He had previously broken his right ankle and hurt his left knee on different occasions playing basketball. Claimant began working for Employer in May 2014. At that time, he denied any pain in his knees, but he explained that he had been experiencing “buckling” of his knees. Claimant also acknowledged that he had fallen “a couple of times” while working for Employer.

On September 15, 2014, Claimant was Operating a forklift to load and unload trucks.' He was not having any pain or swelling in his right knee. He was wearing steel-toed boots as required by Employer, and he described them as “pretty heavy.” Claimant parked his forklift, and he stepped down from it onto his left foot. He estimated the height of the exit from the forklift as being “[nineteen, twenty inches” off of the ground and higher than an “ordinary stair” for something like a house. “As soon as [he] stepped [with his right foot], there was a pop and [he immediately] felt pain[.]”

On cross-examination, Claimant clarified that he had already reached “the ground before [his] knee poppedf.]” Claimant pulled up his “pants leg and there was a knot just getting bigger and bigger and bigger[,]” and he put ice on his knee.5

The next day, a manager for Employer told Claimant that he was being sent to be •examined by Dr. Thomas Marsh. After seeing Dr. Marsh, Claimant understood that Dr. Marsh did not think that; Claimant [312]*312had “a work-related injury[.]” Dr. Marsh’s report was admitted into evidence, and it indicated that the doctor saw Claimant on September 17, 2014. Dr.

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521 S.W.3d 308, 2017 WL 2774613, 2017 Mo. App. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-alan-wire-co-moctapp-2017.