Opinion
No. ED78091
Date: January 30, 2001
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Mark F. Haywood, 7700 Bonhomme Ave., Suite 450, Patrick Niall Mehan, St. Louis, MO 63105, for appellant.
Robert N. Hendershot, Evans Dixon, L.L.C., Brent W. Halbleib, 1200 Saint Louis Place 200 North Broadway, St. Louis, MO 63102, for respondent.
Before Mary K. Hoff, C.J. and Robert E. Crist, Sr. J.,
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 correctness without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo.App. 1995). Findings of ultimate facts reached through application of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo. 1965). Where the parties do not dispute the evidentiary facts, the Commission's award becomes a question of law.Id.
Where decisions are based on determinations of fact, we review the whole record in the light most favorable to the decision. West, 804 S.W.2d at 744. We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Wiele v. National Super Markets, Inc., 948 S.W.2d 142, 145 (Mo.App. 1997). In the absence of fraud, the factual findings made by the Commission within its powers are conclusive and binding. Section 287.495.1; Wiele, 948 S.W.2d at 145.
For his first point claimant contends that the ALJ's award of 30% permanent partial disability of the upper right extremity at the level of the shoulder was supported by the evidence and that the Commission should have deferred to the ALJ's finding.
The ALJ found Dr. J. H. Morrow's 45% permanent partial disability rating was too high given the fact that claimant had been able to continue his demanding employment duties and Dr. Nogalski's three percent permanent partial disability rating was too low because it did not account for chronic pain. However, the Commission found Dr. Nogalski, "a board certified orthopedic surgeon and treating physician in these cases," "the more persuasive of the two medical opinions in light of his medical expertise and his personal involvement in employee's treatment." Both of these doctors testified by deposition. Because neither of these doctors appeared before the ALJ to provide live testimony, "`the Commission could determine [their credibility] from the written record equally [as] well as' the ALJ." Davis v. Research Medical Center, 903 S.W.2d 557, 573 (Mo.App. 1995) (quoting Frazier v. National Bearing Division, 250 S.W.2d 1008, 1011 (Mo. 1952)). Therefore, we must defer to the Commission's credibility determinations regarding these two witnesses and disregard the ALJ's determinations. Id.; Winsor v. Lee Johnson Const. Co., 950 S.W.2d 504, 510-11 (Mo.App.W.D. 1997). Further, the Commission was not bound by the exact percentage assigned by either expert and was free to find a disability rating higher or lower than that expressed in the medical testimony. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 731 (Mo.App. 2000). The Commission's determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within the Commission's province and we will not substitute our judgment for that of the Commission even if we would have made a different initial conclusion. Id.
The Commission's determination that claimant had a 10% permanent partial disability was supported by substantial and competent evidence. Point one is denied.
For his second point claimant argues that the surveillance videotapes were "statements" within the meaning of Section 287.215 RSMo (1994) and that the employer was required to provide the tapes to claimant in response to claimant's request for "statements" under Section 287.215. Claimant further argues that because the employer did not provide these tapes to claimant, the Commission should have excluded them. Because this is a question of law, we do not defer to the Commission's judgment.West, 804 S.W.2d at 744.
Section 287.215 provides:
287.215. Injured employee to be furnished copy of this statement, otherwise inadmissible as evidence
No statement in writing made or given by an injured employee, whether taken and transcribed by a stenographer, signed or unsigned by the injured employee, or any statement which is mechanically or electronically recorded, or taken in writing by another person, or otherwise preserved, shall be admissible in evidence, used or referred to in any manner at any hearing or action to recover benefits under this law unless a copy thereof is given or furnished the employee, or his dependents in case of death, or their attorney, within fifteen days after written request for it by the injured employee, his dependents in case of death, or by their attorney. The request shall be directed to the employer or its insurer by certified mail.
A videotape with no audio portion does not constitute a statement under Section 287.215. Erbschloe v. General Motors Corp., 823 S.W.2d 117, 119 (Mo.App. 1992).
Claimant argues that this holding is no longer the law in light of State ex rel. Missouri Pacific R. Co. v. Koehr, 853 S.W.2d 925 (Mo.banc 1993) and State ex rel. McConaha v. Allen, 979 S.W.2d 188, 189 (Mo.banc 1998). Koehr held that surveillance photographs or motion pictures are "statements" of a party discoverable under Rule 56.01(b)(3). That rule provides:
For purposes of this paragraph, a statement previously made is: (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, audio, video, motion picture or other recording, or a transcription thereof, of the party or of a statement made by the party and contemporaneously recorded.
In Koehr, the court distinguished Erbschloe on the grounds thatErbschloe was decided under Section 287.215 and that statute does not contain an internal definition of "statement" whereas Rule 56.01(b)(3) does define "statement." Id. at 927.
McConaha dealt with the production of surveillance videotapes under Section 287.560 of the workers' compensation law, which guarantees certain discovery rights, as follows:
Any party shall be entitled to process to compel the attendance of witnesses and the production of books and papers, and at his own cost to take and use depositions in like manner as in civil cases in the circuit court, except that depositions may be recorded by electronic means.
In McConaha the supreme court held that, because the statute requires that depositions in workers' compensation matters are to be taken in the same manner in civil actions, Section 287.560 authorizes the use of a subpoena duces tecum under Rule 57.09(b). 979 S.W.2d at 189. Because Rule 56.01(b) specifies the general scope of what may be discovered using a deposition under Rule 57, Rule 56.01(b) also controls what may be discovered using a deposition under Section 287.560. Id. Therefore, the Rule 56.01(b)(3) definition of "statement," which includes surveillance videos, applies to subpoena duces tecum issued in connection with a deposition taken pursuant to Section 287.560. Id. The court specifically limited its holding to depositions taken pursuant to Section 287.560 and advised that it was not holding that any other civil rules were applicable to workers' compensation proceedings. Id.
In this case claimant did not attempt to obtain statements pursuant to Rule 56.01(b) or in connection with a deposition taken under Section 287.560. He asserts a right to production of the videotapes only pursuant to his request for statements under Section 287.215. The word "statement" as used in that statute does not include non-audio surveillance videotapes. Erbschloe, 823 S.W.2d at 119.
Claimant also argues that the definition given to "statement" in Rule 56.01(b)(3) should apply to the word "statement" as used in Section 287.215. We disagree. The definition contained in Rule 56.01(b)(3) was specifically limited to the purposes of that paragraph of the rule. In addition, the Rules of Civil Procedure govern only civil actions pending in courts. Rule 41.01. The Rule 56.01(b)(3) definition of "statement" is broader and more inclusive than the ordinary definition of "statement" which, in the evidentiary context, refers to "an assertion" or "conduct intended as an assertion." Black's Law Dictionary, 1416 (7th Ed.). Section 287.215's use of "statement" is compatible with its ordinary meaning because a person's conduct picked up by a surveillance videotape is not "conduct intended as assertion." We decline to depart from our holding in Erbschloe.
The Commission's award is affirmed.
Mary K. Hoff, C.J. and Robert E. Crist, Sr. J., concur.