Lingo v. MIDWEST BLOCK AND BRICK, INC.

307 S.W.3d 233, 2010 Mo. App. LEXIS 435, 2010 WL 1439025
CourtMissouri Court of Appeals
DecidedApril 13, 2010
DocketWD 71501
StatusPublished
Cited by3 cases

This text of 307 S.W.3d 233 (Lingo v. MIDWEST BLOCK AND BRICK, INC.) 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
Lingo v. MIDWEST BLOCK AND BRICK, INC., 307 S.W.3d 233, 2010 Mo. App. LEXIS 435, 2010 WL 1439025 (Mo. Ct. App. 2010).

Opinion

JAMES EDWARD WELSH, Presiding Judge.

Tom Lingo appeals the Labor and Industrial Relation Commission’s partial denial of his workers’ compensation claim for permanent total disability benefits. Lingo asserts that the Commission’s determination that he did not sustain a traumatic brain injury as a result of an accident that arose out of and in the course of his employment with Midwest Block and Brick, Inc., was not supported by sufficient and substantial evidence and was against the overwhelming weight of the evidence. We affirm.

Lingo worked for Midwest Block and Brick, Inc., filling and packaging bags of cement. According to Lingo, a properly filled cement bag would weigh 94 pounds. On July 21, 1994, when Lingo was moving a bag of cement, which he believed was overfilled to 200 pounds, from the filling machine to a pallet, the cement bag burst. According to Lingo, when a bag is overfilled with cement, a bag can burst, creating a shotgun-like sound and distributing cement into the air. Lingo said that, when the bag burst, his head was turned to the side and his right ear was about a foot from the bag. Lingo did not recall the events immediately after the bag burst, but apparently Lingo was carried outside *235 the building by other employees. Lingo remembered being outside and being completely covered with cement. He also recalled feeling nauseous and dizzy and bleeding from his right ear. In the almost fourteen years, between the accident and the hearing on Lingo’s claim for workers’ compensation, Lingo was seen by several doctors for the injuries he claims were causally related to his work accident.

Lingo reported the injury to the Division of Workers’ Compensation on August 5, 1994. He then filed a workers’ compensation claim on September 14, 1995, and amended claims for compensation on September 29, 1995, and August 17, 2001. In his last amended claim for compensation, Lingo asserted that these parts of his body were injured by the accident that occurred on July 21,1994: “head, right ear, left ear, traumatic brain injury, dementia due to traumatic brain injury, exacerbation of hypertension, depression, neuropsychological dysfunction, vestibular injury, vertigo, perforated tympanic membrane of the right ear, contralateral Meniere’s Disease, dizziness, bilateral hearing loss.” The Division’s Administrative Law Judge (ALJ) held a hearing on February 7, 2008, and issued a final award on April 8, 2008. In the award, the ALJ concluded:

Mr. Lingo has sustained his burden of proof that he has traces of tinnitus in his right ear, as well as scarring on the right tympanic membrane, related to the breaking of a bag of cement on July 21, 1994.
Mr. Lingo failed to prove that any disability related to or resulting from the left ear was caused by the July 21, 1994, accident. Whether Mr. Lingo has Meniere’s Disease in his left ear or just Meniere’s like symptoms in that ear is irrelevant. For the first seventeen months following July 21, 1994, there is no evidence of anything other than a normal exam of the left ear....
Likewise, Mr. Lingo failed to sustain his burden of proof that he sustained a traumatic brain injury as the result of the events of July 21, 1994. There is no evidence of anything resembling a brain injury in any of the medical records contemporaneous with the accident or in any of the medical records from a treating physician. The only testimony regarding traumatic brain injury is from experts who were told that Mr. Lingo had sustained a traumatic brain injury and were then asked to opine based on the information supplied to them.
As a result of the damage to the right ear sustained on July 21, 1994, Mr. Lingo has sustained a permanent disability of 15% of the body as a whole. No permanent disability is awarded for complications to or injury in the left ear or for a traumatic brain injury.

On August 20, 2009, the Labor and Industrial Relations Commission affirmed the ALJ’s award and attached and incorporated the ALJ’s award and decision to its final award.

In his sole point on appeal, Lingo asserts that the Commission’s determination that he did not sustain a traumatic brain injury as a result of an accident on July 21, 1994, was not supported by sufficient and substantial evidence and was against the overwhelming weight of the evidence. We disagree.

We review the findings of the Commission and not those of the ALJ. Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 491 (Mo.App.2007). However, where the Commission’s award attaches and incorporates the ALJ’s award and decision, as in this.case, we consider the findings and conclusions of the Commission as including the ALJ’s award. Id. This court may modify, reverse, remand *236 for rehearing, or set aside the award of the Commission only if it determines that the Commission acted in excess of its powers, that the award was procured by fraud, that the facts found by the Commission do not support the award, or that there was not sufficient competent evidence in the record to warrant making the award. § 287.495, RSMo 2000. We review the whole record to determine whether there is sufficient competent and substantial evidence to support the award or if the award is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003).

“To be entitled to workers’ compensation benefits, the claimant has the burden of proving ... that the alleged injury ... was directly caused by the accident. In other words, a claimant must establish a causal connection between the accident and the compensable injury.” Kerns v. Midwest Conveyor, 126 S.W.3d 445, 453 (Mo.App.2004) (citation omitted). “Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause.” Gordon v. City of Ellisville, 268 S.W.3d 454, 461 (Mo.App.2008).

In support of his contention that he suffered a traumatic brain injury and that the Commission’s decision was against the weight of the evidence, Lingo relies on the testimony from seven experts. First, Lingo notes that one of his treating physicians, Dr. Lawrence Nichols, stated in a progress note on October 18, 1994, that Lingo had “neurologic changes” but said that the “etiology [was] uncertain.” Nichols also stated in a letter to a claims representative on January 25, 1995, that he had seen Lingo “on several occasions with vertiginous episodes, nausea, disequilibrium and right tympanic membrane perforation.” In the letter, Nichols also said that, in his opinion, “there is no question that this gentleman suffered a work related injury which has prevented him from seeking gainful employment since the injury occurred.”

Second, Lingo points to the progress notes of Dr. David Marty, who also treated Lingo.

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307 S.W.3d 233, 2010 Mo. App. LEXIS 435, 2010 WL 1439025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lingo-v-midwest-block-and-brick-inc-moctapp-2010.