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McDowell v. Missouri Department of Transportation

Court of Appeals of Missouri, Southern District, First Division

August 29, 2017

JOHN O. MCDOWELL, Claimant-Respondent,


          DON E. BURRELL, J.

         The Missouri Department of Transportation[1] ("Employer") appeals the portion of the workers' compensation award ("the award") that awarded John O. McDowell ("Claimant") $17, 007.60 for permanent partial disability based on a psychiatric disability resulting from a June 2012 accident in which Claimant's right ankle was crushed by a "a large piece of asphalt[.]"[2]

         Employer's first point claims the Labor and Industrial Relations Commission ("the Commission") erred in admitting the "written testimony" of a psychiatrist under section 287.210.7[3] because it violated Employer's federal and state constitutional due process rights[4] and right to cross-examination under section 491.070.[5] Employer's second point claims "there was not sufficient competent evidence" supporting the award for psychological injury because Claimant did not "submit any evidence of permanent disability . . . demonstrated and certified by a physician within a reasonable degree of medical certainty[.]" See section 287.190.6(2).

         Because Point 1 was not preserved for appellate review, and the psychiatrist's opinion constituted sufficient competent evidence to prove psychological injury, we affirm.

         Applicable Principles of Review and Governing Law

A reviewing court may modify, reverse, remand for rehearing, or set aside a workers' compensation award upon a finding that: (1) the commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the commission's factual findings do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award.

Malam v. State, Dep't of Corr., 492 S.W.3d 926, 928 (Mo. banc 2016). See also section 287.495.1. We "examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). We "must defer to the commission's findings on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence." Malam, 492 S.W.3d at 928.

         Evidentiary Summary and Procedural History

         Claimant testified during an April 2016 hearing before an administrative law judge ("ALJ") that he was working as a crew leader for Employer in June 2012, and he had worked for Employer for 25 years. As a part of his job duties, Claimant patched pot holes, mowed right-of-ways, washed bridges, sawed concrete, ran jackhammers, plowed snow, and did "any type of highway maintenance that need[ed] to be done." On June 6, 2012, Claimant was in a ditch cut "approximately four feet deep" across a roadway, and he was raking gravel where a piece of pipe was to be installed. A "large piece of asphalt broke off the edge of the ditch and" fell on Claimant's leg, pinning him "to the side of the ditch" and breaking the lower portions of Claimant's right tibia and fibula.[6] Claimant's crew broke the asphalt into smaller pieces to get it off of him, and he was transported by ambulance to the hospital.

         After undergoing surgery, Claimant returned to work "pretty quick" by working "an office job" for Employer "for quite a while." In January 2013, Claimant had a second surgery to graft bone from his hip into one of his injured leg bones, and the surgeon also added "some more hardware to" that bone. Claimant eventually returned to his position as a crew leader for Employer in April or May 2013.

         Claimant continued to have pain and swelling in his leg, especially on days when he did "stationary flagging[, ]" snow plowing, or pothole patching. Before the work injury, Claimant did "a lot of the sign work, climbing ladders, [and] moving replacement signs." After the work injury, Claimant could not "hardly work off of ladders." Claimant's supervisor made "reasonable accommodations" for Claimant because of the work injury, such as not having Claimant "flag . . . two days in a row."

         Outside of work, Claimant's pain kept him from enjoying the use of his "WaveRunner" at the lake with his children. Claimant used to attend hockey games, but he went only once after the work injury due to the steps that he had to climb to reach his seat and the "tight compact position" of the seats. Claimant took prescription pain medicine at least twice a day in addition to over-the-counter pain medicine. On some days, he would elevate his leg and "put ice on it."

         Claimant also "sought psychiatric treatment" from his "primary care physician's office" after "[i]t had been pointed out to [him] that [he] had changed and was very irritable." His prescribed antidepressants "worked really well for" about "five or six months and then [he] started getting depressed again." The antidepressant dosage was increased, and this "worked out well for awhile[, ]" but he eventually "fell back in the same thing." The dosage was then "increased . . . to the highest dose possible[.]" At that level, Claimant was "holding [his] own[, ]" but he thought that, based upon his past experience with the need to increase ...

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