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09/28/93 RICHARD EMERT v. FORD MOTOR COMPANY

September 28, 1993

RICHARD EMERT, APPELLANT,
v.
FORD MOTOR COMPANY, RESPONDENT.



Appeal from the Labor and Industrial Relations Commission, State of Missouri.

Robert E. Crist, Judge, Crandall, P.j., and Reinhard, J., concur.

The opinion of the court was delivered by: Crist

Employee, Richard Emert, sought workers' compensation benefits for an accident which occurred at his place of employment, Ford Motor Company (Employer). The Division of Workers' Compensation found Employee had sustained an accident which arose out of and in the course of his employment. It awarded Employee $24,167.80 for a permanent partial disability of 40 percent. However, it refused to award the majority of Employee's past medical expenses, finding they were unauthorized expenses. On appeal, the Labor and Industrial Relations Commission (Commission) affirmed the award.

On April 1, 1986, Employee was sitting at a picnic table at the Ford Motor Company waiting for the line to start up again. As a hi-lo driver was getting a box of steel from the rack behind Employee, the box fell onto Employee's head and shoulders. Employee was taken to the plant hospital and treated by Dr. Lance Gerowin. Dr. Gerowin treated Employee with physical therapy. When Employee's headaches and pain did not improve, Dr. Gerowin referred Employee to Dr. Marshall Conrad in March of 1987 for further treatment. Employee was then referred to a neurosurgeon, Dr. Francis Walker, who recommended Employee see Dr. Joseph Hanaway, a neurologist. Employee saw Dr. Hanaway in April of 1987 on one occasion and received a CAT scan. Further treatment suggested by Dr. Hanaway was not followed up. Employee testified he was later informed treatment by Dr. Hanaway was not authorized.

Following this treatment, Employee again saw Dr. Walker in September 1987. Dr. Walker recommended physical therapy. In January 1988, Employee was placed on medical leave. At this time, Employee began seeing Dr. Earl Gonyaw. Dr. Gonyaw operated on Employee's neck in February 1988. Later, in September of 1988, Dr. Gonyaw operated on Employee's back.

On appeal, Employee first asserts the Commission erred in merely stating "past due compensation shall bear interest as provided by law", because such statement is indefinite. Employee argues this statement is capable of two possible interpretations: (1) interest as calculated pursuant to § 287.160.2, RSMo 1986 (repealed); or (2) interest calculated pursuant to § 287.160.3, RSMo Supp. 1992, enacted in 1990. The 1990 amendment to § 287.160 directed "no interest shall be payable until after thirty days after the award of the administrative law Judge." Prior to that amendment, interest was paid from the date of the injury. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 112 [8] (Mo. banc 1989).

This court has held the 1990 amendments to § 287.160 are to be applied retroactively. Croffoot v. Max German, Inc., 857 S.W.2d 435 (Mo. 1993). Therefore, even though Employee's injury occurred in 1986, prior to the 1990 amendment, only one interpretation of the Commission's language is possible. Point denied.

In Point II, Employee argues the Commission erred in denying payment of past medical bills of $5,708 for medical procedures performed by Dr. Gonyaw as unauthorized.

In reviewing the Commission's decision, we must examine the whole record in the light most favorable to the decision, deferring to the Commission on issues concerning credibility and weight to be given conflicting evidence. Cole v. Town & Country Exteriors, 837 S.W.2d 580, 583 [1] (Mo. App. 1992). Further, our review is limited to the following grounds:

(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;

(4) That there was not sufficient competent evidence in the record to warrant ...


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