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Jim Plunkett, Inc. v. Ard

Court of Appeals of Missouri, Western District, Fourth Division

September 13, 2016

JIM PLUNKETT, INC., AND REGENT INSURANCE COMPANY, Appellants,
v.
MICHAEL ARD (DECEASED); VICTORIA ARD, Respondents.

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

          Before: Mark D. Pfeiffer, Chief Judge Presiding, James Edward Welsh, and Edward R. Ardini, Jr., Judges

          James Edward Welsh, Judge

         Jim Plunkett, Inc., and Regent Insurance Company[1] appeal from the Labor and Industrial Relations Commission's determination that they were liable for permanent partial disability benefits due to an injury Michael Ard (now deceased) sustained while at work and that the personal representative of Ard's estate is entitled to the accrued and unpaid compensation due Ard in the amount of $99, 333.00 plus interest. Plunkett contends that the Commission failed to make factual findings supporting the award of permanent partial disability benefits as required by section 287.460.1, RSMo Cum. Supp. 2013, and that the Commission erred in awarding Ard's personal representative both accrued and unaccrued benefits. We affirm.

         Ard worked for Jim Plunkett, Inc., removing window frames, installing window frames, and installing glass. On October 15, 2010, large plates of glass fell upon Ard causing multiple injuries, including a pubic fracture, pelvic fracture, sacral fracture, a right displaced distal fibula fracture, instability of the ankle joint, and left-sided rib fractures. On October 16, 2010, Dr. David Paul performed an open reduction and internal fixation for Ard's right distal fibular fracture. Thereafter, Ard's care and treatment was transferred to Dr. Christopher Wise, an orthopedic trauma surgeon, for treatment of Ard's pelvic and sacral fractures. On October 18, 2010, Dr. Wise performed a manipulation of Ard's pubic fracture and found that the pubic fracture was stable and that no internal fixation was necessary. For the sacral fracture, Dr. Wise inserted a screw across the fracture to hold it in place.

         From October 21 through October 29, 2010, Ard was in an inpatient rehabilitation unit at North Kansas City Hospital. After discharge from the rehabilitation unit, Ard continued to follow up with Dr. Wise for medical treatment following his injuries. Ard complained about right foot pain and left shoulder pain during visits to Dr. Wise. An MRI scan of Ard's left shoulder revealed a comminuted distal clavicle fracture with evidence of intermediate to high grade sprain of the acromioclavicular joint, a non-displaced fracture of the humeral head and neck, mild biceps pulley tendinopathy without a rupture, supraspinatus tendinopathy without full thickness tear, and signal alteration of the labrum consistent with possible partial injury. Dr. Wise recommended non-operative treatment with rehabilitation and referred Ard to ARC Physical Therapy for treatment.

         On December 15, 2010, Dr. Wise determined that Ard was able to return to work performing "sitting work." Ard returned to work at the end of December 2010 and worked in the office. On April 6, 2011, Dr. Wise released Ard at maximum medical improvement with a 50 pound weight lifting restriction.[2] Dr. Wise imposed no limitations on squatting, crawling, kneeling, climbing, pushing, pulling, standing, walking, or sitting. Ultimately, Dr. Wise determined that Ard sustained a 12 percent disability to the body as a whole.

         Following Dr. Wise's release, Ard went to Dr. James Zarr, a board certified physician in physical medicine and rehabilitation and electrodiagnostic medicine, for pain management. (TR. 1506). Dr. Zarr evaluated Ard on three separate occasions and determined that the restrictions imposed by Dr. Wise were appropriate and that Ard could return to work within those restrictions. Dr. Zarr determined that Ard sustained a 20 percent permanent partial disability to the body as a whole.

         On July 23, 2011, Dr. Brent Koprivica evaluated Ard. Under a hypothetical where a vocational expert would conclude that Ard was not totally disabled, Koprivica assigned a global 65 percent permanent partial disability to the body as a whole. According to Koprivica, the combined disability considered the synergism of combining the multiple physical impairments attributable to the October 15, 2010 work accident.

         The Division of Worker's Compensation Administrative Law Judge held a hearing on August 23, 2013, on Ard's timely filed claim for worker's compensation. Before the case was decided, Ard was murdered on September 14, 2013. Ard died intestate. The Circuit Court of Jackson County subsequently appointed Ard's father, Gilbert Ard, personal representative of Ard's estate.

         After Ard's death, the parties filed a motion with the ALJ to determine dependency pursuant to section 287.230, RSMo Cum. Supp. 2013, and section 287.240, RSMo 2000. The ALJ held a hearing on the motion, and Victoria A. Ard appeared at the hearing through her attorney. Victoria Ard asserted that she was married to Ard at the time of his injury and death and that, therefore, she was Ard's dependent. The evidence established that Victoria Ard married David Pflugradt in 1992, and that the marriage was never dissolved or otherwise nullified prior to Victoria Ard marrying Ard in September of 2001. At the hearing, Victoria Ard introduced an exhibit into evidence establishing that, on January 27, 2014, the Circuit Court of Jackson County annulled her marriage to Pflugradt. The ALJ determined that, based upon the decree and order of the Jackson County Circuit Court, the marriage of Victoria Ard and Pflugradt was void and was invalid from its inception because Pflugradt lacked the capacity to contract under state law. The ALJ, therefore, determined that Victoria Ard was the dependent of Michael Ard.

         As to permanent partial disability benefits, the ALJ determined that Ard had a permanent partial disability impairment of 65 percent to the body as a whole based on the rating of Dr. Koprivica. In making such determination, the ALJ stated in his conclusions of law, "I find Dr. Koprivica's opinion to be credible on the body as a whole rating." The ALJ further found that Dr. Wise's and Dr. Zarr's disability ratings lacked credibility. The ALJ concluded that Plunkett was liable for permanent partial disability benefits in the amount of $99, 333.00.

         Plunkett and the personal representative of Ard's estate appealed this decision to the Labor and Industrial Relations Commission. On October 22, 2015, the Commission reversed the ALJ's finding that Victoria Ard was Ard's dependent and awarded all payable benefits to Ard's personal representative.[3] The Commission affirmed the ALJ's award of accrued and unpaid compensation due Ard in the amount of $99, 333.00 and incorporated the ALJ's award and decision to the extent that it was not inconsistent with the Commission's decision and award. Plunkett appeals.

         Our review of the Commission's decision is governed by article V, section 18, of the Missouri Constitution and section 287.495, RSMo 2000. Article V, section 18, provides for judicial review of the Commission's award to determine whether the decision is authorized by law and whether it is "supported by competent and substantial evidence upon the whole record."[4]Under section 287.495, we must affirm unless the Commission acted in excess of its powers, the award was procured by fraud, the facts do not support the award, or insufficient competent evidence exists to warrant the making of the award. In determining whether the award is supported by sufficient competent and substantial evidence, i.e., is contrary to the overwhelming weight of the evidence, we examine the evidence in the context of the whole record, viewing the evidence objectively. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. Banc 2003). In the absence of fraud, however, the Commission's findings of fact are "conclusive and binding." § 287.495.1. Thus, we ""defer to the commission's finding on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence.'" Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. banc 2015). We review issues of law de novo. Id.

         In its first point on appeal, Plunkett contends that the Commission failed to make factual findings supporting the award of permanent partial ...


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