Maloy v. Cabinet & Bath Supply, Inc.

187 S.W.3d 922, 2006 Mo. App. LEXIS 472, 2006 WL 932389
CourtMissouri Court of Appeals
DecidedApril 12, 2006
DocketNo. 27017
StatusPublished
Cited by3 cases

This text of 187 S.W.3d 922 (Maloy v. Cabinet & Bath Supply, 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
Maloy v. Cabinet & Bath Supply, Inc., 187 S.W.3d 922, 2006 Mo. App. LEXIS 472, 2006 WL 932389 (Mo. Ct. App. 2006).

Opinion

JOHN E. PARRISH, Judge.

This is an appeal of a final award of the Labor and Industrial Relations Commission (the commission) denying workers’ compensation benefits to William C. Maloy (claimant). Claimant contends the commission erred in finding the injury he sustained did not arise out of and in the course of his employment. Claimant further contends that the commission erred in entering the award of no compensation because no findings or conclusions were made regarding claimant’s allegations that witnesses lied under oath with respect to testimony adduced at the hearing before the administrative law judge. This court affirms.

Claimant filed a claim asserting that he was injured April 20, 2001, in the course of his employment while working as a custom cabinet maker for Cabinet & Bath Supply, Inc. (employer). The injury he claims was sustained while working for employer was diagnosed in May 2001 as a herniated lumbar disc. He underwent surgery to repair the injury May 17, 2001. He returned to work four days following surgery. Claimant testified that he has not been able to perform the full duties required for his work. Claimant again experienced pain in his lower back in September 2002. He was diagnosed with a second herniated disc at the same level as the prior injury.

Claimant testified that on April 20, 2001, he finished building a large fireplace mantel and moved it from employer’s warehouse to its showroom. The mantel was about nine feet high. It consisted of two pieces, a top and a bottom. The top piece was approximately three feet four inches tall. The bottom was approximately five feet eight inches tall. They were moved from the warehouse by claimant and a coworker, Brian Kaiser. The men used an 18-inch workbench to lift the top piece off the bottom piece. Claimant testified that he felt a pain in his back when he stepped backwards off the workbench. He stated he almost dropped the mantel; that there was a jerk when he caught the mantel. He said that co-workers offered to help move the mantel; that he did not do any [924]*924more lifting that day. Claimant said that all he did after this occurred was screw the mantel in place after it was assembled in the showroom. He said he told his supervisor, Kevin Bean, that he had injured his back.

Kevin Bean recalled claimant’s involvement in moving the mantel. He did not recall whether claimant lifted the mantel. He stated that claimant did not inform him that he had injured his back and did not appear to have been injured.

Brian Kaiser helped build and move the mantel. He did not recall anything unusual happening on April 20. He did not remember the mantel almost dropping or that claimant had needed help. He testified that it took him and claimant two attempts to lift the top piece into place in the showroom; that no one helped them lift the mantel.

Two other workers, Paul Barton and Mike Hambelton, were present when the mantel was moved. Neither saw the mantel almost drop or recalled claimant saying he had hurt his back or acting like he was hurt. Neither recalled him asking for help in moving the mantel.

On Saturday, April 21, 2001, claimant had scheduled installation of cabinets for Joan Summers, a private customer. He testified that he called her and told her he had injured his back; that he would not be able to install her cabinets unless he could find someone to assist him. He said he called Brian Kaiser after he talked to Ms. Summers; that he reminded Kaiser of what had happened while moving the mantel and asked Kaiser to help install the cabinets for Ms. Summers. Kaiser agreed to help.

Brian Kaiser testified. He said claimant had asked him to help install Ms. Summers’ cabinets on Monday or Tuesday pri- or to the scheduled Saturday installation; that this was before the mantel had been moved. He said claimant said nothing about injuring his back; that claimant did not appear to be in pain and did not have difficulty installing the cabinets.

On April 23, 2001, the Monday following installation of Ms. Summers’ cabinets, claimant called Kevin Bean and said he was going to see a chiropractor. He saw Dr. Kandy Ackley on April 24 and 25. Dr. Ackley’s records report that claimant suffered low back pain and bilateral leg pain for one day that began “immediately after he was lifting/installing cabinets by himself for [employer].” Dr. Ackley referred claimant to an emergency room.

Claimant was seen at the emergency room at Cox Hospital on April 26, 2001. Hospital records reflect that he reported his pain had begun two days prior to the visit. They state that claimant denied any recent injury. Claimant reported previous incidents of back pain. An MRI revealed claimant had suffered a herniated disc at L4-5. He was referred to Dr. Bert Park for surgery. Claimant saw Dr. Park on May 10, 2001. Surgery was performed on May 17, 2001. Dr. Park’s medical records make no mention of an injury at work.

On September 29, 2002, claimant was at the Cox Hospital emergency room complaining of back pain “waxing and waning” since surgery and having gradually increased the preceding week to ten days. Claimant was diagnosed with a herniated disc at the same level as the one for which he previously had surgery. He was sent to Cox Health Systems Outpatient Rehabilitation Services on October 8, 2002, where he reported an on-the-job injury that occurred April 20, 2001, while lifting a heavy mantel.

Claimant was evaluated by Dr. John Charles Mace, a neurosurgeon. An MRI disclosed a recurrent disc herniation at L4-5. Dr. Mace concluded that the course [925]*925of treatment should be to redo the lami-nectomy and microdiskectomy. Dr. Mace stated that he did not discuss anything about an injury occurring in April 2001 with claimant; that there was nothing in the history and physical he received when he first saw claimant about an injury that occurred at work in April 2001.

Employer presented testimony of Dr. Norbert Belz, a physician specializing in occupational and environmental medicine, and Dr. Dirk Aylander, an orthopedic surgeon. Dr. Belz testified that it was not plausible for a person with a herniated disc to install cabinets the day following the incident that produced the ailment. His opinion was that the lifting of the mantel on April 20, 2001, was not a substantial factor in the development of the herniated disc that required surgery. He gave the further opinion that the herniated disc that was diagnosed on September 29, 2002, was a new injury, not a recurrent herniation.

Dr. Aylander’s testimony was consistent with that of Dr. Belz. His opinion was that claimant’s initial injury was not related to lifting the mantel on April 20, 2001; that the subsequent disc injury was a new injury.

The administrative law judge’s conclusions of law included:

After carefully reviewing all of the evidence, I find that the injury did not occur as the claimant describes on April 20, 2001. This is based on the fact that none of the other people who testified that they were present when the mantel was lifted, moved, and reassembled remembered anything about the mantel almost being dropped, the claimant hurting himself, needing help, acting like he was in pain, or anything else unusual at all happening regarding this mantel. Also, Brian Kaiser, who helped the claimant with the mantel and the cabinet installation the next day, did not remember anything unusual or any complaints being made by the claimant of his back hurting.

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Cite This Page — Counsel Stack

Bluebook (online)
187 S.W.3d 922, 2006 Mo. App. LEXIS 472, 2006 WL 932389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maloy-v-cabinet-bath-supply-inc-moctapp-2006.