Quilty v. Frank's Food Mart

890 S.W.2d 360, 1994 Mo. App. LEXIS 1977, 1994 WL 712718
CourtMissouri Court of Appeals
DecidedDecember 27, 1994
DocketNo. WD 49124
StatusPublished
Cited by6 cases

This text of 890 S.W.2d 360 (Quilty v. Frank's Food Mart) 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
Quilty v. Frank's Food Mart, 890 S.W.2d 360, 1994 Mo. App. LEXIS 1977, 1994 WL 712718 (Mo. Ct. App. 1994).

Opinion

SPINDEN, Presiding Judge.

National American Insurance Company appeals the Labor and Industrial Relations Commission’s decision ordering National American to pay for Thomas Quilty’s medical expenses for a back injury. National American asserts that it is not responsible for Quilty’s expenses because it was not the workers’ compensation insurance carrier when Quilty’s on-the-job accident occurred. We agree and reverse the commission’s decision.

Quilty worked at Frank’s Food Mart as produce manager. In November 1988, he injured his back by lifting a sack of potatoes at the food store. Quilty consulted John Yost, an orthopedic surgeon, who diagnosed Quilty’s problem as two ruptured discs and a pinched nerve. Yost performed surgery (a lumbar laminectomy and a disc excision) on Quilty’s back in June 1989. He removed bone from the third lumbar vertebra to the sacrum and partially removed the L4-L5 disc and the L5-S1 disc. Yost dismissed Quilty from treatment in December 1989. Yost told Quilty to return for treatment only on an “as needed” basis. Quilty returned to work, but he continued to have some symptoms. He did not seek medical treatment for these symptoms.

On April 1,1990, Quilty cleaned the store’s display eases for three to five hours. The work required Quilty to bend over continuously. As he cleaned the cases, he noticed pain in his lower left side and leg. Later in the day, the pain increased and continued to worsen after he went home.

Quilty waited a month to see Yost again. On May 1, 1990, Yost prescribed epidural shots, stretching exercises and walking. Yost also ordered an MRI and an EMG. These indicated that Quilty had a pinched nerve and a disc fragment resting on the spinal canal. The MRI showed a physical change in Quilty’s spine since the surgery as a result of the April 1990 accident. Yost diagnosed Quilty as suffering from a recurrent ruptured disc with extruded disc fragment in the spinal canal and recurrent lumbar radiculopathy.

Yost continued to treat Quilty and noted marked improvement as a result of the three epidural blocks. Yost saw Quilty again on July 24, 1990, and Quilty indicated that he was doing great and had no significant prob[362]*362lems. Yost told Quilty to return for treatment only on an “as needed” basis. After this time, Quilty continued to have pain radiating into his left leg and buttocks, but he did not seek treatment.

On March 24 or 25,1991, Quilty was working at the store when he bent over to pick up a grape from the floor. Quilty felt a sharp pain in his lower back, like a pinch, and he had difficulty straightening up. Quilty described the pain as a quicker onset of pain than he had felt in April 1990.

Yost examined Quilty again on March 25, 1991. Yost diagnosed Quilty as suffering recurrent lumbar radiculopathy. Yost opined, based upon a reasonable degree of medical certainty, that the April 1990 injury caused the ruptured disc fragment and was causing Quilty’s present symptoms in 1991. Yost testified, “A fragment of disc does not dissolve.” Yost agreed that Quilty’s improved condition after the April 1990 injury did not mean that Quilty’s pathology had been corrected or improved or that Quilty’s ruptured disc with an extruded disc fragment had been cured.

Yost recommended that Quilty receive further diagnostic testing and further medical treatment and care. Quilty, however, did not seek further treatment because Frank’s Food Mart’s insurance carriers were arguing over who had to pay for the expenses.

For the April 1,1990, injury, CNA was the workers’ compensation insurance carrier for Frank’s Food Mart. By March 24, 1991, the store had switched its workers’ compensation insurance to National American. Both insurance companies denied liability and claimed that the other was responsible for Quilty’s additional medical treatment.

The commission’s administrative law judge ruled that National American was responsible, and the commission affirmed her award. National American appeals.

No one disputes Quilty’s need for more tests and treatment. The only issue in this case is who should pay for them. National American asserts that the commission erred as a matter of law in affirming the ALJ’s decision that National American should pay because Yost was the only physician who testified and he stated that Quilty’s need for further was caused by the incident on April 1, 1990. National American contends that because Frank’s Food Mart was insured by CNA on April 1,1990, CNA should pay. We agree.

We review workers’ compensation eases in the light most favorable to the commission’s award and uphold the commission’s decision if it is supported by competent and substantial evidence on the whole record. Phillips v. Ozark Bank, 808 S.W.2d 662, 663 (Mo.App.1991). We must avoid, however, substituting our judgment upon issues of fact for the commission’s judgment. McFarland v. Bollinger, 792 S.W.2d 903, 904 (Mo.App. 1990).

An employee has a right to compensation for a disability resulting from an accident. Section 287.020(2), RSMo 1986, defines “accident.” It says:

The word “accident” as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.1

In 1983 the Supreme Court of Missouri expanded the scope of the term “accident” in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983). Before Wolfgeher, an employee had to show that his or her injury resulted from an abnormal or unexpected event which happened suddenly. In Wolfgeher, the Supreme Court declared that an employee had to show only that his injury was “job related.” The job related test does not require that the injury result from any unusual or abnormal event. The employee must show only that his or her performance of usual and customary job duties led to a physical breakdown or a change in pathology. Id. at 784. “The focus must be on whether ‘an injury has occurred rather than what act or force immediately [363]*363preceded the injury.’” Rector v. City of Springfield, 820 S.W.2d 639, 642 (Mo.App.1991) (citation omitted).

Although the Supreme Court greatly liberalized “accident” to include protracted types of injuries, the burden of proving that the injury was caused by a job related activity or stimulus remains with the employee. The employee “bears the burden of proving that an accident occurred and that it resulted in injury.” Goleman v. MCI Transporters, 844 S.W.2d 463, 465 (Mo.App.1992). The job related stimulus need not be the sole or direct cause of the injurious result to establish causation. Tibbs v. Rowe Furniture Corporation, 691 S.W.2d 410, 412 (Mo.App. 1985). So long as the job related accident is an efficient, exciting, superinducing, concurring or contributing cause, the test for causation is met.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hampton v. Big Boy Steel Erection
121 S.W.3d 220 (Supreme Court of Missouri, 2003)
Kasl v. Bristol Care, Inc.
984 S.W.2d 852 (Supreme Court of Missouri, 1999)
Knipp v. Nordyne, Inc.
969 S.W.2d 236 (Missouri Court of Appeals, 1998)
Avery v. City of Columbia
966 S.W.2d 315 (Missouri Court of Appeals, 1998)
Bruflat v. Mister Guy, Inc.
933 S.W.2d 829 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
890 S.W.2d 360, 1994 Mo. App. LEXIS 1977, 1994 WL 712718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quilty-v-franks-food-mart-moctapp-1994.