Conover v. Missouri State Highway Department

618 S.W.2d 470, 1981 Mo. App. LEXIS 2892
CourtMissouri Court of Appeals
DecidedJune 23, 1981
DocketNo. WD 32081
StatusPublished
Cited by3 cases

This text of 618 S.W.2d 470 (Conover v. Missouri State Highway Department) 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
Conover v. Missouri State Highway Department, 618 S.W.2d 470, 1981 Mo. App. LEXIS 2892 (Mo. Ct. App. 1981).

Opinion

MANFORD, Presiding Judge.

In this workmen’s compensation case, the employer/insurer appeals the award of compensation entered by the Industrial Relations Commission. The award was affirmed by the circuit court. The judgment of the circuit court affirming the award is herein affirmed.

Review by this court is of the award of the Industrial Commission and not of the finding of the Administrative Law Judge, Craig v. Calvert, 572 S.W.2d 235 (Mo.App.1978); and review is limited to determining whether the award is authorized by law and whether it is supported by competent and substantial evidence, Pulitzer Pub. Co. v. Labor & Ind. Relations, 596 S.W.2d 413 (Mo.banc 1980). No dispute exists between the parties, and the record clearly establishes that the award was authorized by law. The only issue to resolve is whether or not there was competent and substantial evidence to support the award.1

In attacking the award for lack of substantial and competent evidence, appellants allege that the Commission and the circuit court committed error in refusing to reverse the award because (a) only evidence of causation was based upon a hypothetical question propounded to the medical expert, the hypothetical question being fatally defective because it assumed medical findings not in evidence and that contrary to the evidence, it assumed that no other injuries were sustained by the employee and (b) the medical evidence on causation was equivocal and therefore not substantial evidence, thus rendering the Commission’s finding of causal connection mere speculation and conjecture.

Upon the hearing of this matter, the parties stipulated that (a) the claimant was an employee of the Missouri Highway Department on January 12,1978; (b) the employer is an employer operating within the Missouri Workmen’s Compensation law; (c) the employer was insured by Home Insurance Company; (d) the employee sustained an injury on January 12, 1978 arising out of and in the course of his employment; (e) the employer had notice of the injury and (f) the claim was filed within the time prescribed by law. There was no dispute that the compensation rate was $95 over $80. At the time of the hearing, the employer had tendered payment for medical expenses to the physicians, but the costs incurred by the employee for medical services from his own physician were both denied and unpaid. The Commission, in its findings and order, found the employer was not responsible for payment of these particular medical costs ($268.83) because of lack of evidence regarding the necessity or reasonableness of these costs.

The issues drawn from the above stipulation were (1) whether or not the conditions complained of were a result of the accident of January 12, 1978 and (2) the nature and extent of the injury. It should be noted that (2) has been abandoned for all intents and purposes on this appeal, other than how it relates to causation. Appellant more directly argues that there was insufficient evidence to support a finding of causation or causal connection between the claimed accident and the claimed resulting injury.

The employee testified that on January 12, 1978, he was working in the stock room assisting in an inventory audit. He fell some four feet, striking his head on merchandise in the area, and as his head hit, it forced his chin to his chest. He stated that he had received no prior injury to or had no previous complaints regarding this area of his body subsequent to the January 12 fall. [472]*472Immediately after the fall, he experienced pain in his neck and back. The day after the fall, the employee was sent to the employer’s physician. No x-rays were taken, but the employee was given medication for pain and physical therapy for approximately a five-week period. The therapy was discontinued upon the decision of the employer’s physician. The employee stated he was still having pain in his neck and back when the therapy ceased. The employee continued to work with attending pain and discomfort.

On May 9, 1978, the employee sought medical assistance from his personal physician. This contact was made after the employee suffered muscle spasms from pushing his lawnmower. The personal physician tested the employee for possible heart problems, which proved negative. The employee also testified that he experienced pain in his chest the last part of April when he reached up to catch a frisbee thrown during a family picnic.

During the time the employee was tested by his personal physician, he was referred to a neurosurgeon who, after examining the employee (including x-rays and a spinal tap), concluded that the employee suffered from ruptured disks in the cervical region of the spine. Corrective surgery was performed with only a healing and drainage problem involving the hip, from which bone was removed to complete the cervical fusion.

Appellants correctly point out our courts have held that the nature, cause and extent of disability can be determined by the testimony of the claimant if the facts of such fall within the realm of the layman’s understanding, but when injury and effect involve sophisticated diagnosis and treatment, the nature, cause and extent of disability must be established by expert testimony. Appellant cites Griggs v. A. B. Chance Company, 503 S.W.2d 697 (Mo.App.1973). It is obvious that appellants’ argument on this point seeks two concurring results, the first being that the cause of his disability cannot be proven by his testimony alone and the second, to direct the court’s attention to the alleged failure of the expert medical testimony to establish causation. The second part of the sought-after conclusion brings into direct focus appellants’ two alleged points of error.

Prior to the hearing on the employee’s claim, the neurosurgeon who operated on the employee was deposed. By agreement, this deposition, in lieu of appearance by the physician, was placed in the record. In addition to objections made during the doctor’s deposition, appellants were granted leave to file written objections to portions of the doctor’s testimony. The administrative law judge, in his findings and order, overruled the objections.

During the prehearing deposition of the neurosurgeon, counsel for the employee propounded a hypothetical question to the doctor. That question serves as the basis for appellant’s argument on this appeal. It serves no purpose to set forth the question verbatim, but it suffices to point out how the question is sufficient against appellants’ attack. The hypothetical question was not exactly a masterpiece in its form, but the substance is the key to the conclusion of the issue.

In their first argument, appellants contend that the hypothetical question was defective because it included facts (examination and diagnosis by the employee’s private physician) not in evidence. The record shows that this evidence was, in fact, made part of the record by the employee without appellants’ objection. That portion of appellants’ contention is without merit. Secondly, appellants contend that the hypothetical question was fatally defective because it failed to include no other injuries or traumatic episodes subsequent to January 12,1978. Appellants’ argument simply fails for a variety of reasons.

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Bluebook (online)
618 S.W.2d 470, 1981 Mo. App. LEXIS 2892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conover-v-missouri-state-highway-department-moctapp-1981.