Goleman v. MCI TRANSPORTERS

844 S.W.2d 463, 1992 Mo. App. LEXIS 1653, 1992 WL 314230
CourtMissouri Court of Appeals
DecidedNovember 3, 1992
DocketWD 45838
StatusPublished
Cited by13 cases

This text of 844 S.W.2d 463 (Goleman v. MCI TRANSPORTERS) 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
Goleman v. MCI TRANSPORTERS, 844 S.W.2d 463, 1992 Mo. App. LEXIS 1653, 1992 WL 314230 (Mo. Ct. App. 1992).

Opinion

HANNA, Judge.

This is an appeal from an award adverse to Mr. Goleman, an employee of MCI, rendered by the Labor and Industrial Relations Commission (Commission) on a worker’s compensation claim. The decision of the Administrative Law Judge (AU) denied benefits for the employee’s claimed injury occurring on October 28, 1988.

Mr. Goleman was an over-the-road truck driver for the employer, MCI. He was first injured on September 19, 1987, in Baltimore, Maryland when he sustained a work-related injury to his back and hip while unloading air conditioners. He filed a formal claim for worker’s compensation benefits and was treated by Dr. Mahaffy. He was released for work with lifting restrictions, specifically, not to do any heavy lifting and no loading or unloading of trucks. The second injury, the one at issue, occurred October 18, 1988, in Kansas City, Missouri while he was unloading boxes from an MCI trailer and hurt his lower back. Since the October 1988 incident, he has not worked as a truck driver and has not been involved in any employment requiring physical labor of any type. In January 1989, MCI put Mr. Goleman in an office job as a dispatcher for approximately four or five hours per day for four weeks. At the end of that time, Mr. Goleman was told by MCI that he was not qualified as a dispatcher and his weekly temporary disability compensation benefits were reinstated.

He filed his claim for compensation August 23,1989. The hearing for the October 1988 injury took place on September 19, 1990, at which time Mr. Goleman was still seeking recovery for the first work-related injury. The AU denied Mr. Goleman’s claim for compensation because he had a previous industrial disabling condition from his September 19, 1987 injury and no proof had been offered separating it from the injuries occurring from the October 1988 accident. An application for review was filed with the Commission which affirmed the decision of the AU. This appeal follows.

The employee claims first that he did not suffer a permanent disability in the first accident and therefore, there was no need to allocate damages between accidents. His second argument claims that since the same employer is liable for both injuries, his failure to allocate the disability between the two injuries does not defeat his right of recovery. For his third point, he argues the Commission erred in failing to find a causal connection between the October 1988 accident and his injury because the sudden onset of the injury supplied the causal connection. Finally, the employee contends his Second Injury Fund settlement of ten percent is conclusive of his first injury.

The employer responds that the employee failed to establish the nature and extent of the injury he sustained from the October 1988 accident or, alternatively, failed to allocate the extent of damage to each of the accidents. At the commencement of the hearing the AU and the attorneys agreed that two of the issues to be tried would be “whether the conditions complained of by the claimant were caused by *465 the related accident” and the “nature and extent of the permanent partial disability and any pre-existing disability that may have been suffered by the claimant.”

For his first point, the employee argues that there was no competent evidence that the first accident resulted in permanent disability. Therefore, there was no need to allocate the employee’s disability between the two accidents and the Commission’s reliance on Plaster v. Dayco Corp., 760 S.W.2d 911 (Mo.App.1988) was in error. The evidence presented, in the light most favorable to the decision of the Commission, was that while Mr. Goleman was lifting air conditioners in September 1987, he sustained an injury to his lower back and hip; he filed a formal claim for compensation for that injury; received weekly worker’s compensation benefits; and was treated by a physician for the injury. Approximately ten days following the accident he was released to return to work with medical restrictions not to do any heavy lifting and no loading or unloading of the truck. At the time of this hearing, Mr. Goleman was still seeking recovery for the September 1987 claim. His medical bills and the time missed from work had been paid. The remaining and unresolved issue was the extent of the employee’s permanent partial disability. Further, the physician testified that Mr. Goleman told him his lower back pains arising from the September 1987 accident had persisted or continued.

Finally, the employee made and settled a claim against the Second Injury Fund using the September 19, 1987 injury as the basis of his claim. The Commission found this to be evidence of a pre-existing disability to the employee’s back, continuing to the time of the hearing, thereby requiring evidence of the extent of the pre-existing claim.

Dr. Sundstrom’s testimony was the only medical testimony offered at the hearing concerning the causal relationship of the employee’s injury and the two work-related accidents. The doctor was aware of Mr. Goleman’s history concerning the two back injuries. At the time of Dr. Sundstrom’s testimony, the doctor was unable to determine which of the injuries caused the back problem.

The claimant, in a worker’s compensation case, bears the burden of proving that an accident occurred and that it resulted in injury. Dolen v. Bandera’s Cafe & Bar, 800 S.W.2d 163, 164 (Mo.App.1990). A claimant must not only show causation between the accident and the injury but also that a disability resulted and the extent of such disability. Smith v. National Lead Co., 228 S.W.2d 407, 412[4] (Mo.App.1950).

When a pre-existing disability is present, the claimant is required to prove the extent of the pre-existing disability so that such percentage can be evaluated against the disability percentage existing after the compensable injury. Plaster, 760 S.W.2d at 913. Dr. Sundstrom, an orthopedic specialist, was one of three physicians who treated Mr. Goleman. He examined and rated the employee. Dr. Sundstrom’s deposition was admitted into evidence as the only medical testimony provided at the hearing. He testified that the employee had a fifty percent impairment of function to the whole person and was suffering from severe chronic lumbodorsal arthral-gia. Mr. Goleman is seeking fifty percent permanent partial disability as a result of the accident in October 1988. Dr. Sund-strom’s testimony on behalf of the employee was unable to identify, absent speculation, which accident caused the injuries that the employee now claims. He testified:

Q. The low back pain that you referenced, the September of 1987 injury, he indicated has persisted or continued?
A. That’s true.
Q. When you saw him in January of 1989 you weren’t able to make a diagnosis as to which of the injuries had caused the back problem?
A. That’s right.
Q. And, as we sit here today, you can’t differentiate between those two injuries, one as opposed to the other, as being the cause of the back problem?

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Bluebook (online)
844 S.W.2d 463, 1992 Mo. App. LEXIS 1653, 1992 WL 314230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goleman-v-mci-transporters-moctapp-1992.