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Fisher v. Waste Management of Missouri1/30/2001
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: AFFIRMED.
Hoff, C.J. and Crist, Sr. J., concur.
Opinion:
In this workers' compensation case, claimant, Michael Fisher, appeals from the final award of the Labor and Industrial Relations Commission (Commission) affirming as modified the award of the Administrative Law Judge (ALJ) for injuries to his shoulder suffered on June 18 and September 18, 1997. Claimant asserts that the Commission erred in admitting three surveillance videotapes and finding that claimant suffered 10% permanent partial disability.
Claimant was employed as a trash hauler by employer, Waste Management of Missouri. His duties included driving a truck and picking up and dumping residential trash cans. Claimant injured his right shoulder on June 18, 1997 and again on September 18, 1997 when lifting heavy trash cans. Dr. Michael Nogalski, claimant's treating physician, testified by deposition that he had seen claimant for the first time on July 28, 1997. Dr. Nogalski diagnosed claimant with "mild sternoclavicular joint arthritis with an exacerbation of this problem--and rotator cuff tendonitis." Following the second injury, Dr. Nogalski diagnosed claimant with "acromioclavicular joint hypertrophy with low-lying acromion and supraspinous tendonosis" and restricted claimant to lifting no more than 20 pounds and no over chest level activity. Dr. Nogalski saw claimant for a final evaluation on July 29, 1998. At that time Dr. Nogalski diagnosed claimant with "mild chronic rotator cuff tendonitis."
Claimant filed claims for compensation for injury to his right shoulder and right arm on for both injuries. Claimant's attorney made a request for all "statements" by certified letter pursuant to Section 287.215. At the hearing before the Administrative Law Judge (ALJ) on both injury claims, two physicians testified by deposition, Dr. Michael P. Nogalski, claimant's treating physician, and Dr. J.H. Morrow. Dr. Morrow rated claimant as having 45% permanent partial disability to the right shoulder while Dr. Nogalski rated claimant as having a 3% permanent partial disability to the shoulder. At the hearing employer offered into evidence several surveillance videotapes without an audio component. Claimant objected on the grounds that they were not produced in response to his request for statements under Section 287.215. The ALJ excluded the videotapes and found that claimant had sustained a 30% permanent partial disability of the right shoulder.
Employer petitioned the Commission for review. The Commission concluded that the surveillance videotapes were not statements under Section 287.215 and accepted three of them into evidence. The Commission also found Dr. Nogalski's testimony more persuasive than Dr. Morrow's. Based on the medical evidence and the videotapes, the Commission disagreed with the extent of disability found by the ALJ. The Commission modified the award to reflect a 10% permanent partial disability of the right shoulder. Claimant appeals.
When a workers' compensation claim is appealed, we review only questions of law. Section 287.495.1 RSMo (1994). We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute: (1) that the Commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the Commission do not support the award; or (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Id. We review decisions of the Commission which are clearly interpretations or applications of law for correctnes
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