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Sonya Nebbit v. City of St. Louis

Decision date: March 5, 201010 pages

Summary

The Missouri LIRC affirmed the administrative law judge's award of workers' compensation to Sonya Nebbitt for a compensable occupational disease injury when she was struck in the head and face by a prisoner on February 6, 2008. The employee was awarded 20 weeks of permanent partial disability benefits totaling $7,780.80, representing 5% permanent partial disability of the cervical spine.

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This workers' comp decision may point to a separate injury claim.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-017535

Employee: Sonya Nebbit

Employer: City of St. Louis

Insurer: Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 14, 2010. The award and decision of Administrative Law Judge John Howard Percy, issued January 14, 2010, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $5^{\text {th }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employee:Sonya NebbittInjury No. 08-017535
Dependents:N/ABefore the <br> Division of Workers' <br> Compensation
Employer:City of St. LouisDepartment of Labor and Industrial
Additional Party:NoneRelations of Missouri
Jefferson City, Missouri
Insurer:Self-insured
Hearing Date:October 13, 2009Checked by: JHP

FINDINGS OF FACT AND RULINGS OF LAW

  1. Are any benefits awarded herein? Yes
  2. Was the injury or occupational disease compensable under Chapter 287? Yes
  3. Was there an accident or incident of occupational disease under the Law? Yes
  4. Date of accident or onset of occupational disease: February 6, 2008
  5. State location where accident occurred or occupational disease was contracted St. Louis City
  6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
  7. Did employer receive proper notice? Yes
  8. Did accident or occupational disease arise out of and in the course of the employment? Yes
  9. Was claim for compensation filed within time required by Law? Yes
  10. Was employer insured by above insurer? Self-insured
  11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was struck in the head and face by a prisoner.
  12. Did accident or occupational disease cause death? No Date of death? N/A
  13. Part(s) of body injured by accident or occupational disease: neck and face
  14. Nature and extent of any permanent disability: 5 % permanent partial disability of the body referable to the cervical spine
  15. Compensation paid to-date for temporary disability: None
  16. Value necessary medical aid paid to date by employer/insurer? \$2,484.83

Employee: Sonya Nebbitt Injury No. 08-017535

  1. Value necessary medical aid not furnished by employer/insurer? None claimed
  2. Employee's average weekly wages: $\ 619.00
  3. Weekly compensation rate: $\ 412.67 TTD/ $\ 389.04 PPD
  4. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable:

20 weeks of permanent partial disability from Employer $\ 7,780.80

  1. Second Injury Fund liability: N/A

TOTAL: $\quad \ 7,780.80

  1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Mark Cordes

FINDINGS OF FACT and RULINGS OF LAW:

Claimant: Sonya Nebbitt

Dependents: N/A

Employer: City of St. Louis

Additional Party: None

Insurer: Self-insured

Injury No. 08-017535

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JHP

A hearing in this proceeding was held on October 13, 2009. Both parties submitted proposed awards on November 10, 2009.

STIPULATIONS

The parties stipulated that on or about February 6, 2008:

  1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
  2. the employer's liability was self-insured;
  3. the employee's average weekly wage was $\ 619.00;
  4. the rate of compensation for temporary total disability was $\ 412.67 and the rate of compensation for permanent partial disability was $\ 389.04; and
  5. the employee sustained an injury as a result of an accident arising out of and in the course of employee's employment occurring in St. Louis City, Missouri.

The parties further stipulated that:

  1. the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
  2. no compensation has been paid; and
  3. employer has paid $\ 2,484.83 in medical expenses.

ISSUES

The sole issue to be resolved in this proceeding is the nature and extent of any permanent disability, if any, sustained as a result of the work-related injury of February 6, 2008.

PERMANENT DISABILITY

The appellate courts have long held that the employee must prove the nature and extent of any disability by a reasonable degree of certainty. ${ }^{1}$ Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974). Such proof is made only by competent and substantial evidence. It may not rest on speculation. Idem. Expert testimony may be required where there are complicated medical issues. Goleman v. MCI Transporters, 844 S.W.2d 463, 466 (Mo. App. 1993); Griggs at 704; Downs v. A.C.F. Industries, Incorporated, 460 S.W.2d 293, 295-96 (Mo. App. 1970).

Section 287.020.3(1) Mo. Rev. Stat. (2005 Supp.), which was added in 2005, provides in pertinent part that "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." "Prevailing factor" is defined as "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

Section 287.190.6(2) Mo. Rev. Stat. (2005 Supp.), which was added in 2005, provides that "[p]ermanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures."

The appellate courts have long held that the fact finder may accept only part of the testimony of a medical expert and reject the remainder of it. Cole v. Best Motor Lines, 303 S.W.2d 170, 174 (Mo. App. 1957). Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo. App. 1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo. App. 1992); Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo. App. 1986). The provisions of Section 287.190.6(2) have probably modified the unfettered discretion previously given to the fact finder in accepting or rejecting expert opinions to the extent that the fact finder must now accept those opinions which are based on objective findings and reject inconsistent opinions based on subjective findings.

However, where the facts are within the understanding of lay persons, the employee's testimony or that of other lay witnesses may constitute substantial and competent evidence of the nature, cause, and extent of disability. Silman v. William Montgomery \& Associates, 891 S.W.2d 173, 175 (Mo. App. 1995). This is especially true where such testimony is supported by some medical evidence. Pruteanu v. Electro Core Inc., 847 S.W.2d 203 (Mo. App. 1993); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo. App. 1992); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 199 (Mo. App. 1990); Ford v. Bi-State Development Agency, 677 S.W.2d 899, 904 (Mo. App. 1984); Fogelsong v. Banquet Foods Corp, 526 S.W.2d 886, 892 (Mo. App. 1975). The trier of facts may even base its findings solely on the testimony of the

[^0]

[^0]: 1 It is unclear whether this standard has been changed by the adoption of Section 287.808 Mo. Rev. Stat. (2005 Supp.) which modified the burden of proof for factual propositions to "more likely to be true than not true."

employee. Fogelsong at 892 . The trier of facts may also disbelieve the testimony of a witness even if no contradictory or impeaching testimony is given. Hutchinson v. Tri-State Motor Transit Co., supra at 161-2; Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo. App. 1980). The uncontradicted testimony of the employee may even be disbelieved. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo. App. 1993); Montgomery v. Dept. of Corr. \& Human Res., 849 S.W.2d 267, 269 (Mo. App. 1993). The provisions of Section 287.190.6(2) have probably modified the unfettered discretion previously given to the fact finder in accepting or rejecting lay opinions to the extent that the fact finder must now reject lay opinions which conflict with medical opinions based on objective findings.

The determination of the degree of disability sustained by an injured employee is not strictly a medical question. While the nature of the injury and its severity and permanence are medical questions, the impact that the injury has upon the employee's ability to work involves factors which are both medical and nonmedical. Accordingly, the appellate courts have repeatedly held that the extent and percentage of disability sustained by an injured employee is a finding of fact within the special province of the Commission. Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502, 505 (Mo. App. 1989); Quinlan v. Incarnate Word Hospital, 714 S.W.2d 237, 238 (Mo. App. 1986); Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo. App. 1983); Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo. App. 1980); McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 289 (Mo. App. 1968). The fact finding body is not bound by or restricted to the specific percentages of disability suggested or stated by the medical experts. It may also consider the testimony of the employee and other lay witnesses and draw reasonable inferences from such testimony. Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886, 892 (Mo. App. 1975). The finding of disability may exceed the percentage testified to by the medical experts. Quinlan v. Incarnate Word Hospital, at 238; Barrett v. Bentzinger Brothers, Inc., at 443; McAdams v. Seven-Up Bottling Works, at 289. The uncontradicted testimony of a medical expert concerning the extent of disability may even be disbelieved. Gilley v. Raskas Dairy, 903 S.W.2d 656, 658 (Mo. App. 1995); Jones v. Jefferson City School Dist., 801 S.W.2d 486 (Mo. App. 1990). The fact finding body may reject the uncontradicted opinion of a vocational expert. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995).

Findings of Fact

Based on my observations of Claimant's demeanor during her testimony, I find that she is a credible witness and that her testimony is generally credible. Based on t

Full decision text continues in the plain-text archive copy.

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