Court of Appeals of Missouri, Western District, Fourth Division
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Before: Mark D. Pfeiffer, Chief Judge Presiding, James Edward
Welsh, and Edward R. Ardini, Jr., Judges
Edward Welsh, Judge
Plunkett, Inc., and Regent Insurance Company 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.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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. 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.
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."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.
first point on appeal, Plunkett contends that the Commission
failed to make factual findings supporting the award of
permanent partial ...