Kerns v. Midwest Conveyor

126 S.W.3d 445, 2004 Mo. App. LEXIS 175, 2004 WL 234407
CourtMissouri Court of Appeals
DecidedFebruary 10, 2004
DocketWD 62045
StatusPublished
Cited by15 cases

This text of 126 S.W.3d 445 (Kerns v. Midwest Conveyor) 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
Kerns v. Midwest Conveyor, 126 S.W.3d 445, 2004 Mo. App. LEXIS 175, 2004 WL 234407 (Mo. Ct. App. 2004).

Opinion

EDWIN H. SMITH, Judge.

Midwest Conveyer appeals from the decision of the Labor and Industrial Relations Commission (Commission) awarding the respondent, Robert Kerns, workers’ compensation benefits for permanent and total disability, pursuant to § 287.120. 1 In awarding the respondent benefits, the Commission found that he was permanently and totally disabled as a result of an accident on June 26, 1995 (the accident), while in the course and scope of his employment with the appellant, in which he fell from a platform at the Ford Assembly Plant in Claycomo, Missouri.

The appellant raises three points on appeal. In Point I, it claims that the Commission erred in finding that the respondent was permanently and totally disabled as a result of the accident because there was not substantial and competent evidence from which to find, as required, that the respondent’s alleged disabling injuries were caused by the accident. In Point II, it claims that the Commission erred in finding that the respondent was permanently and totally disabled because there was not substantial and competent evidence from which to find, as required, that the respondent was not able to return to employment, and, even if there was such evidence, the Commission’s finding was nonetheless against the weight of the evidence. In Point III, it claims that the Commission erred in finding that it was liable for the entirety of the respondent’s found disability because, pursuant to § 287.220.1, it was only liable for the disability resulting from the last injury caused by the accident.

We affirm.

Facts

The respondent began working as an ironworker in the early 1970’s, regularly working as such until the accident. During that time, he suffered numerous work- and non-work-related injuries. While on the job, the respondent fell through a skylight, knocking his front teeth out and splitting his lip. In a separate incident at work, he broke his nose. He also fractured his left knee in a car accident that was not work related. And, prior to the accident, he was diagnosed with arthritis in his left leg, a degenerative condition affecting his left knee, and carpal tunnel syndrome in both hands.

On June 26, 1995, the respondent, while working as a structural steel ironworker for the appellant at the Ford Motor Plant in Claycomo, Missouri, fell backwards from a platform, located approximately eight feet from the floor, and was knocked unconscious. He was taken by ambulance to Liberty Memorial Hospital, where he remained until July 4,1995. The respondent was diagnosed as having a closed head injury, scalp hematoma, right pulmonary contusion, right rib fracture, thoracic strain, lumbosacral strain, pelvic contusion, and elbow laceration.

Following the accident, the respondent timely filed a workers’ compensation claim seeking benefits for injuries. At the time, the extent of his injuries had not yet been determined such that it was unclear what benefits were being sought. An amended claim was subsequently filed, in which the respondent sought benefits for permanent *448 and total disability. The appellant, as well as the State Treasurer (pursuant to § 287.220.2), were named as parties in the amended claim.

On September 20, 2001, the respondent’s claim for benefits was heard by an administrative law judge (ALJ). The parties stipulated that the respondent was involved in an accident arising out of and in the course of his employment, leaving the contested issues of the extent and nature of his disability and SIF liability, if any, for determination by the ALJ. Both the respondent and appellant presented evidence; however, only the respondent presented live testimony. The respondent, along with his wife and son, testified at the hearing. Mary Titterington, a vocational rehabilitation consultant, also testified. In addition, the respondent introduced deposition testimony from Drs. Nora Clark, P. Brent Kopriviea, Nicola Y. Katf, and Eric G. Sollars, along with a significant amount of documentary evidence. The appellant offered the deposition testimony of Drs. Stanton L. Rosenberg and Terrence Pratt, along with other documentary evidence. The SIF did not present any evidence.

The respondent testified that since the accident, he had suffered from severe pain in his back and hips and had significant difficulty remembering things and that as a result, he had become depressed. He also testified that these conditions were nonexistent before the accident. In addition, he testified that his previous injuries and conditions had not prohibited him from performing his duties as an ironwork-er. The respondent’s wife and son testified to changes they had seen in the respondent’s condition since the accident and to specific examples of forgetfulness and physical limitation they had witnessed.

Titterington testified that on June 3, 1998, she evaluated the respondent to determine his employability. As part of her evaluation, she employed the Slosson Intelligence Test-Revised, Wide Range Achievement Test-Revision 3, Minnesota Rate of Manipulation Tests, Adult Basic Learning Examination, and the Box and Blocks Test. Based on the test results, she found that the respondent academically functioned at a fourth-grade level and that as a result he was unable to perform even the most basic of unskilled sedentary work and, therefore, was unemployable.

In her deposition, Dr. Clark, a licensed clinical psychologist, testified concerning her neuropsychological evaluation of the respondent on August 28, 1996, and September 11, 1996, the purpose of which was to assess the respondent’s intellectual and cognitive capacities. As part of her evaluation, she administered the Wechsler Adult Intelligence Test, the Halstead Rei-tan Neuropsychological Test Battery for Adults, the Reitan Indiana Aphasia Screening Test, as well as a series of sensory, perceptual, and motor tests. Based on her evaluation, Dr. Clark concluded that the respondent had low average intellectual abilities, poor academic skills, and a mild level of impairment in brain-related functioning.

Dr. Kopriviea, an occupational medicine physician, testified in his deposition that he evaluated the respondent on January 22, 1998, at the request of the respondent to determine the level of disability, if any, suffered by the respondent, and the nature and extent of any injuries sustained by him in the accident. Based on his evaluation, Dr. Kopriviea found that the respondent suffered from pre-existent industrial disability caused by carpal tunnel syndrome and had a history of medical and lateral tibial plateau fractures along with medical meniscus tears. He also found, however, that the respondent, as a direct result of the accident, sustained multiple traumatic injuries, including a closed head *449 injury resulting in vestibular dysfunction, tinnitus, and mild brain dysfunction, and aggravation to the respondent’s pre-exis-tent, but asymptomatic, spinal stenosis, degenerative hip disease, and lumbar spon-dylosis. He also diagnosed the respondent as having chronic pain syndrome, which caused him to suffer from sleep disturbance. Ultimately, Dr. Koprivica’s medical opinion was that the respondent was permanently and totally disabled due to the combined effect of the injuries suffered in the accident and his pre-existing disabilities.

In his deposition, Dr.

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Bluebook (online)
126 S.W.3d 445, 2004 Mo. App. LEXIS 175, 2004 WL 234407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerns-v-midwest-conveyor-moctapp-2004.