Kohl v. National Super Markets

763 S.W.2d 731, 1989 Mo. App. LEXIS 82, 1989 WL 4372

• Court: Missouri Court of Appeals
• Decided: January 24, 1989
• Docket: No. 55146
• Status: Published

Opinion

CRIST, Judge.

In this workers’ compensation case, appellant (employee) appeals an award of 35 percent permanent partial disability to her body as a whole. We affirm.

Employee asserts, and we agree, the evidence and medical facts would support an award of permanent and total disability. However, the evidence and medical facts also support the award rendered. We cannot substitute our judgment for that of the Commission. The Commission is the fact finder and has discretion in making its award based upon those facts. Richardson v. Falcon Products, Inc., 739 S.W.2d 596, 597 (Mo.App.1987).

On August 6, 1981, employee slipped on grease, fell on the floor and injured her back. She received treatment from time to time until April of 1982, when her coccyx was surgically removed. She continued to be treated from time to time until July 1985, at which time she was in an automobile accident and sustained further injury to her back.

Employee’s doctor rated her permanent partial disability at 40 percent of the body as a whole without consideration as to the disability sustained in the automobile accident. Employer’s doctor rated her permanent partial disability at 25 percent of the body as a whole without consideration of the automobile accident.

Employee’s ability to work and labor on the open labor market was a question for the Commission to resolve. We cannot say the Commission abused that discretion. She has worked little since August 6,1981. There was medical testimony she could return to gainful employment on a restricted basis, and apparently the Commission did not give full credence to employee’s testimony as to her disability. The Commission’s award was not against the overwhelming weight of the evidence.

JUDGMENT AFFIRMED.

CRANDALL, P.J., and REINHARD, J., concur.