Crum v. Sachs Electric , 1989 Mo. App. LEXIS 299 ( 1989 )

GAITAN, Judge.

This is a worker’s compensation case. Harley Crum, appellant, appeals from the decision of the Labor and Industrial Relations Commission which affirmed the decision of the administrative law judge (ALJ). The Commission determined that appellant has a permanent partial disability of 65 percent rated for the body as a whole, referable to the low back and right hip. Appellant seeks an award of permanent total disability. The Commission was divided in its decision with two commissioners affirming the ALJ’s decision, and one commissioner dissenting in a separate opinion holding the appellant to be unemployable due to permanent total disability. We affirm the Commission’s decision.

On February 8, 1982, appellant was employed by Sachs Electric Company, doing electrical construction work at the Thomas Hill power plant. Appellant climbed a 14-foot ladder to install a fixture after being told that the electrical wires were not energized. However, the wires were energized with high voltage which knocked appellant off the ladder, causing him to fall to a concrete floor. Appellant first landed with his right foot hitting a pile of pipes and his left foot hitting the concrete floor, then he fell on his back.

From February 17, 1982 to the present appellant has been treated by doctors McElroy and Russell at the Columbia Orthopedic Group in Columbia, Missouri. Appellant originally saw the company doctor on February 9, who took some x-rays. On February 14, appellant went to Dr. Klin-gingsmith in Fulton, Missouri, who is a chiropractor. Appellant saw Dr. McElroy on February 17, and had x-rays and a CAT scan done. Appellant was diagnosed as having a fracture of the superior plate of the third lumbar disc and a fracture of twelfth thoracic vertebra. Appellant was hospitalized for approximately ten (10) days, and continued with bedrest until July 17, 1982. He worked at the Thomas Hill facility from July 17, 1982 to May 22, 1983 on a regular basis. Appellant was hospitalized on May 22, 1983, where a discogram confirmed the presence of a herniated disc at the L4-5 level. Chymopapain, an enzyme, was injected in an effort to dissolve the disc. Surgery was performed between May 22-25, and appellant remained home until September 19, 1983. He then returned to the Thomas Hill facility working for Great Northern, another electrical contractor, running conduit until October 24, 1983. Appellant was readmitted to the hospital on December 4, 1983, when a total decompression laminectomy of both L4 and L5 lamina was performed with a fusion from L-4 to the sacrum. Appellant did not work from December 1983 until he was released for light work on May 21, 1985. He attempted to return to work, but was unable because he had a recurrence of back pain. Appellant resumed duties as an electrician working at a construction site in Georgia from September 17, 1985 to March 17, 1986. During that time period he had to return to Columbia to see Dr. Russell three times. After the third visit, he was unable to return to the job because Dr. Russell said that his back had deteriorated. Appellant took six (6) weeks rest and then began working for Meade Electric on September 3, 1986. He quit because he could not do the work and has not worked since October 31, 1986.

An examination by Dr. Russell in 1985 showed that appellant had lost 58 percent of normal back motion in forward bending, side bending and extension. Appellant also lost 50 percent of upper hip and thigh musculature and 75 percent of muscle strength in his lower back. Dr. Russell testified that appellant could do work that was not heavy and did not involve bending or lifting. Appellant can sit for an hour at a time and do work at a desk so long as he can get up and move around every 45 minutes or so. Dr. Russell recommended limiting rides in vehicles to one (1) hour. Appellant can climb a ladder, but Dr. Russell would not recommend climbing because surgery caused the nerves to his legs to be weak and his legs could buckle. Dr. Russell also testified that appellant’s condition was not going to improve, but would likely worsen with age. In Dr. Russell’s medical opinion, appellant exhibited permanent partial impairment of 65 percent of his body as a whole.

Appellant was born June 7, 1930, and was 51 years old as of the date of the injury. He has been educated up to the sixth or eighth grade. Appellant has essentially been in the electrical trade since 1954. He cannot write the English language and has difficulty reading. Appellant has looked for janitorial work but has been unsuccessful up to the time of the hearing.

The issue to be decided on appeal is whether the Commission’s award is supported by competent and substantial evidence based on the record as a whole. The award by the Commission may only be modified if “it is not supported by substantial evidence or when it is clearly contrary to the overwhelming weight of the evidence.” Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 921 (Mo.App. 1982); Matthews v. Roadway Express, Inc., 660 S.W.2d 768, 769 (Mo.App.1983); and Vogel v. Hall Implement Company, 551 S.W.2d 922, 923 (Mo.App.1977).

The findings of physical impairment by the treating physician, as well as the appellant’s age, education and job skills were all before the AU and the Commission before their respective opinions were rendered. Thus, this Court must review the Commission’s award, the evidence and all legitimate inferences in the light most favorable to the award. Matthews, supra at 769. The Court of Appeals may not substitute its judgment or view of the facts for those found by the Commission. Vogel, supra at 923. However unfortunate it may be, this is true even if this Court would have been persuaded to a different initial conclusion. Id. The only obligation of this reviewing Court is to “determine from the whole record whether the Commission could reasonably have made its findings and award.” Id. (citations omitted).

Appellant cites Kowalski, 631 S.W.2d 919 (Mo.App.1982) as being a case similar to the case at bar. However, in that case Mr. Kowalski suffered from a heart condition which, when coupled with his compensable back injury, resulted in any type of work being dangerous to his health. Unlike the case at bar, the medical testimony was “that the combination of that cardiovascular condition superimposed upon the condition of the back made plaintiff totally and permanently disabled.” Id. at 922. Such medical testimony is absent from the present case thereby distinguishing the two factual situations.

The definition of total disability is the “inability to return to any employment and not merely ... [the] inability to return to the employment in which the employee was engaged at the time of the accident.” Kowalski, supra at 921. (quoting § 287.020(7), RSMo Supp.1975); see also § 287.020.7, RSMo 1986. The terms “any employment” mean “any reasonable or normal employment or occupation.” Kowal-ski, supra at 922. (citing Vogel v. Hall Implement Co., 551 S.W.2d 922, 926 (Mo.App.1977) and Groce v. Pyle, 315 S.W.2d 482, 490 (Mo.App.1958)). The central question to the issue of total disability is “whether any employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition.” Id. The evidence in the case at bar indicates that appellant has been able to work on several occasions in the same type of employment since he sustained his injury. Additionally, appellant himself testified that he felt that he is qualified to obtain employment as a janitor. Therefore, a finding of permanent total disability would be unjustified.

It is the duty of the Commission, not the reviewing court, to review the entire record, determine the credibility of the witnesses, decide the weight to be given their testimony, resolve conflicts therein, and reach its own conclusion. McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 287 (Mo.App.1968). In the case at bar, the Commission heard the testimony of the treating physician who was intimately familiar with all of the facts and circumstances of the appellant. The physician himself testified that appellant had a 65 percent permanent partial disability as rated for the body as a whole. Additionally, appellant testified that he had been employed on several occasions since his injury. This testimony infers that employers have in fact employed appellant in spite of his physical impairment, age, job skill and education. Therefore, the findings of the Commission was based upon substantial, competent evidence, which is not clearly contrary to the weight of evidence.

The judgment of the Commission is affirmed.

NUGENT, J., dissents in separate opinion.