*1 ORDER
PER CURIAM: of a appeals from the denial
Defendant relief, post-conviction 29.15 motion for
Rule hearing. evidentiary
after an post-conviction is af-
The denial of relief 84.16(b). Rule
firmed. RECTOR,
Harvey L. Claimant-
Respondent, SPRINGFIELD, OF
CITY
Employer-Appellant.
No. 17360. Appeals,
Missouri Court District,
Southern
En Banc.
Nov. 1991. Rehearing
Motion for or Transfer
Denied Dec.
Application to Transfer Denied 28, 1992.
Jan.
640
а continuation of a work-relat- July occurred in 1986. ed which Because there substantial evidence order, support we af- the Commission’s firm. OF REVIEW
SCOPE scope of our review in compensation workers' case is stated Const, 287.495, V, Mo. 18 art statute, 1986.1 From this the consti RSMo provision, predecessors, tutional and their principles developed. certain other have McCord, Causey v. 899 (Mo.App.1989). review com We workers’ light pensation in the most favorable cases uphold to the of the Commission and award sup if is the decision of the Commission ported by competent and evi substantial Phillips on dence the whole record. Bank, Ozark 1991); Bollinger, McFarland Love, Harrison, (Mo.App.1990). William Tucker & We cannot C. S.W.2d Hyde, Springfield, employer-appellant. judgment substitute our for that McFarland, Commission. Twibell, Upp, Montgomery, Upp Ben K. disregard any 904. We must evidence Greene, claimant-respon- Springfield, & might finding support different dent. of the Commission and finding although true of the Commission SHRUM, Judge. contrary supported by would be case, compensation In this workers’ Phillips, at 663. evidence. employer City Springfield appeals final award entered the Labor and allowing Industrial FACTS Relations Commission Harvey to the Rec- Springfield police- was a tor. of dis- (by until reason man his retirement whether, Earlier, viewing ability) in issue is evi- December 1987. when, favorably injured dence back most the Commission’s low order, investigation, sup- during is sufficient there evidence auto-accident effort finding pulled a car in an port pried open its was in- or door (the 1986 acci- in on-the-job trapped passenger vоlved a different accident in to free a hav- dent). diagnosed as resulting partial Medically disabili- he was whether, his low sprain of ty to him strain and or sustained a contends, only finding supported by of an intervertebral herniation herniated accident. The employee’s evidence condition is in the 1986 disc fraud; states, 287.495, (2) procured by part: RSMo That the award 1. Section (3) court, facts found the commission That the appeal, 1. shall review ... The award; only questions may modify, support do not of law and verse, rehearing, (4) competent set aside remand for was not sufficient That there grounds upon any following making award record to warrant the evidence in the no other: of the award. (1)That without or the commission acted powers; in excess of its finally repaired he returned to surgically disc Dr. Whit- increased Whitlock, Sep- treating physician, Dr. lock. testify Whitlock did tember Subsequent surgery, Dr. Whitlock from Dr. is found report no Whitlock employee December 1986 released the the record. *3 job city patrolman return his former as a to given in a history Dr. Folck medical to imposed employ- restriction on the with no 1988, Dr. in March subsequent evaluation ee’s Before his to return activities. release quoted telling employ- the was as Whitlock work, employee Dr. to the made Whitlock working the 10-hour shifts and ee that and, job duties released aware of his heavy weapon aggra- carrying the and belt work, employee to still had some the reinjured his and back.3 vated not, in his It did tenderness low back. never went back to work as a street ee however, difficulty perform- in cause him September and, patrolman after ulti- filed his Dr. job. his When Whitlock 1987, for, mately, applied in December he of Work- report with the Division Form 9 duty-connected his granted, and was dis- employee’s he the Compensation, er’s rated 8, Additionally, on ability pension. October the permanent partial disability from 1987, this he filed claim for workers’ com- of the as a whole. accident as 10% claiming pensation that an occurred 1987, 3, February employee the saw On 2, 1987, April through during period the Dr. Folck for Con- William evaluation.2 “[l]ong September a result of as examination, Folck testi- cerning that Dr. sitting operating hours of continuous and employee good fairly fied that the had a automobile, patrol along with the following surgery. clinical result the How- wearing strain a side arm.” ever, he found moderate tissue thick- soft ening surgery in the area of the found and employee’s Dr. Folck testified that the employee the had some of mo- restriction much in condition was worse March February tion. As a result of the February he first him in than when saw examinatiоn, Dr. Folck evaluated his dis- 1987. In March as a result of exam- ability body. 20% ining employee, following he found the (a) conditions: loss of
On
worsened
substantial
employee’s claim
compared
previous
to
1986 accident
settled
back motion
was
noted,
exam, (b)
tenderness, (c)
compromise. As the
increased
addition-
Commission
calf,
(d)
rating
atrophy
right
Dr. Folck’s
al
of his
loss of
Whitlock’s 10%
rating
averaged
(caused
arriving
were
in
at a
reflex
addi-
20%
Achilles
either
permanent partial
rating of
pressure
pro-
15%
or his
tional
scаr tissue
employee.
behavior).
longed
Dr. Folck
activities and
per-
testified
has
35%
employee,
normal duties of
to
body as a
partial disability
returned beginning
he
December
em-
whole. He further testified that the
working
involved
10-hour shifts.
prolonged
ployee’s
hours work and
spent
Most of those shifts were
in a motor
work,
espe-
sitting
he returned to
vehicle,
and,
patrolling,
investigating,
wearing
gun,
cially
the belt with
general,
performing
duties of a street
holster,
side,
and bullets
one
served
During
shifts,
officer.
those
and,
fact,
aggravate
irritatе
holster,
quired
gun
to wear a
belt
awith
he had the
injure
point
his back
gun, bullets, and handcuffs.
disability.
began
hearing,
experience
pains”
Following
new
Administrative
types
“some
pain, discomfort,
Judge
and Law
determined that
low back.
difficulty
performing
gradually
aggravated
condition
his work
statements,
practice
“occupational
as
limited his
of Dr.
Dr. Folck
3. The evidence
Whitlock’s
testimony
in his
in Dr.
contained
report,
Folck's
medicine
evaluation.”
objec-
received in
without
were
evidence
tion.
inju
progressive
and, accordingly, pensated
his work-related activities
repeated
or constant
expe-
result
problems
ries which
considered the increased
job-related
on-the-job hazards.
Id. 785.
exposure
rienced
be
the See,
Mfg.
injury. He further determined
v. Butler
e.g., Davis
disability re-
partial
employee’s permanent
(Mo.App.1983). “The end
lating to the 1987 accident
20%4
nar
was to abandon a
result
$12,951.20
par-
permanent
him
awarded
‘accident’ and
of the term
row construction
one
disability compensation. With
tial
majority
congruеncy with
attain
af-
dissenting,
the Commission
member
the abnormal
have eliminated
states which
Administrative
firmed the award
job
requirement for ...
unusual strain
findings
incorporated his
Judge and
Law
Navajo
injuries....” Wynn v.
related
*4
that final award of
part of its order. From
87,
(Mo.
Lines, Inc., 654
89
Freight
Commission,
employer appeals.
the
the
1983).
need
employee’s work
banc
contributing
injury;
the
factor to
only be a
AND DECISION
DISCUSSION
the sole
necessary that his work be
it is not
appeal, the
single point
In
on
its
cause,
cause,
of the
primary
the
or even
no
employеr claims there was
substantial
“the
injury and
support
the
competent evidence to
and
triggering
if
actual
causes
exist
the
should
support
that
order.
Commission’s
found,
of substantial evi
on the basis
are
testimony
points
of the
argument,
it
dence,
‘job related’ or ‘work
meet the
it claims
Dr. Folck which
employee and
654
Wolfgeher.” Wynn,
related’ test
employee’s com
the
demonstrates
Pipefitters
Foley
89-90.
S.W.2d at
See
1987 all
plaints and
870,
(Mo.App.1989);
Union,
871
not to
1986 accident and
related to his
914,
Corp., 760 S.W.2d
v. Deleon
Arens
disagree
Wе
or additional accident.
new
Motor Co. v.
(Mo.App.1988); Ford
argument for the reasons
with that
484,
Dickens, 700 S.W.2d
follow.
Beginning
Wolfgeher
with
287.020,
us to the
employer
cites
Inc.,
Service,
Wagner Cartage
and then
of accident
definition
RSMo
1983),
(Mo.
the term accident
banc
Wolfgeher “broadened
argues that while
re
injuries which
only
includes not
those
the Missouri
injuries to which
the class of
and unusual event
from an unforeseen
sult
extended,”
Compensation Law
Workers’
cases
the
includes those
where
but also
“unexpected
prove аn
claimant must
still a
itself,
result,
unforeseen or
the
argu-
That
resulting trauma.”
event and
performance of
the
unexpected.5 “Where
says.
Wolfgeher
misconceives what
ment
em
customary duties of an
usual and
the
must
that we
it clear
Wolfgeher makes
or a
physical
breakdown
ployee leads
or additional
a different
focus on whether
compen-
pathology,
the
change
force or
what
rather than
injury occurred
The focus must be
Id. at 784.
sable.”
injury. The
the additional
preceded
trauma
occurred rather
injury has
“an
whether
distinguish Wolfgeh-
attempts to
immediately preced
or force
than what act
em-
arguing that the
case
er from this
The cause
injury.” Id. at 785.
ed the
injuries
complaints and
ployee’s
single, traumatic
need not be a
the
but
of a new accident
the result
com- were not
event; rather,
employee is to be
an
Law,
Compensation
4.2§
Mo. Workers’
Judge
5. See
found that
Law
4. The Administrative
(Mo.Bar
de-
Supp.1988),
from the 1986
where
conclusively determined to be 15%
will contin-
has had and
accident was
by
as a case which
scribed
interpreta-
profound
reason
effect on the
have a
ue to
287.190.6,
RSMo
reason of
settlement and
statutory sections
application
tion and
rating
Deducting
from the 35%
the 15%
"injury,
dealing
ac-
defining
cident_’’
with
otherwise
and
Administra-
rating
made as of March
employee's
Judge
found the
tive Law
disability rating
acci-
to the 1987
attributable
dent to be 20%.
pelvis
and a strain on
merely
pain
were
continuation of
contortion
of
back
complaints from the 1986 accident.
the lower
and irritation
syndrome
back.
wаllet
lower
It is called
record reveals that
he was
phenome-
physical
it is
on a
based
go back to work December
released to
easily
could
be involved
Certainly
non.
2,1987,
through April
employ-
police
we have a
this instance where
ee had
in his low
Dr.
tenderness
back.
officer with
and ammunition would
a belt
in March
Folck
the em-
testified
tilting
pelvis.
certainly
cause
ployee
moderate soft tissue thick-
had some
added.)
(Emphasis
ening
region
surgery,
of his
had
motion,
that it
was reason-
limitation
Folck,
Acсording to
hours of
that,
as a result of
able
assume
wearing
work and
ammunition
injury,
pain,
have
would
some
holster,
gun,
belt with
bullets
one
discomfort,
fatigue
difficulty,
including
aggravate
side had served to irritate
Dr. Folck fur-
weakness.
and,
fact, injured his condition
ther
ex-
testified that those conditions and
point
he had
additional dis-
when,
pectations
considered
in March
were
ability of
as whole
35%.
having
he rated
20%
evidence, coupled
medical
with the
Such
permanent disability.
When the
*5
sufficient
employee’s testimony, is
to sus
Whitlock,
treating physiсian,
ee’s
Dr.
Despite
employee’s
the
tain the award.
employee
leased the
to return to his normal
disability, there
low back
was
1986,
duties
per-
in December
rated his
(a)
evidence that
substantial medical
Yet,
partial disability
ac-
10%.
1987,
September
April
through
the
cording
history given Dr.
to the
Folck
degree
employee’s permanent
dis
1988,
the
employee March
when the em-
increased,
(b)
ability
triggering
the
ployee
in Sep-
returned
see Whitlock
employee’s
cause of the
additional disabili
1987,
tember
Dr. Whitlock advised him that
ty
riding
patrol
long
was the
hours of
his
of
carrying
hours work and the
of
holster, belt,
gun,
car
a
bullets
with
on
holster, belt,
heavy weapon,
a
and accesso-
Foley,
one side. See
tunnel This not- prior thereto. rejected Commission testi- mony physician and her claimant MAUS, Judge, dissenting. accepted testimony of a credible I It is fundamental dissent. physician presented by employer. *6 employer liability pay, of an to and the employer’s em- physician stated that recover, right to workers’ of an ployee from carpal did not suffer tunnel compensation statutory. is a cause of Such syndrome but from another disease un- governed action is created and is to employment. related her Each of the Chapter Compensation The Workers’ upon by cases relied turned Law, provisions 1986. The RSMo issues, on fact the resolution which the code construed as a Ma- are be whole. appellate They court did not disturb. are Works, rie v. 319 S.W.2d Standard Steel authority proposition not for the (Mo. 1959). 871 banc Commission erred the instant case. concept is that an basic that code We affirm. for employee has a “Ac- disability resulting from accident. PARRISH, an JJ., PREWITT and and as: KEET, cident” is defined Special Judge, concur. in this as used “The word ‘accident’ MAUS, FLANIGAN, C.J., J., dissent meaning shall, a unless different chapter separate opinions. context, be clearly indicated CROW, J., dissents concurs unexpected an or un- to mean construed FLANIGAN, C.J.,
dissenting opinions of happening suddenly and event foreseen MAUS, J. fault, or without human violently, with objective at producing the time MONTGOMERY,J., recuses. 287.020.2. symptoms injury.” of an FLANIGAN, Judge, dissenting. Chief “injury Historically, it was held that I respectfully dissent. itself not constitute the ‘event’ could Cartage Wolfgeher Wagner v. voluntary settlement ‘accident’.” “[A] (Mo. Inc., 784 Service, agreement par- and executed made 1983), citing Hussman- 287.390], approved by banc State ex rel. ties under [§ commission, Hughes, 348 Mo. Ligonier v. is not thereafter reviewable Co. (1941). 42 ground change in of a condition.” S.W.2d “ during course of heart attack ‘True, negligence has proof fault or regard to unusual employment without with, proof of “acci- dispensed but been omitted).” (Footnote or abnormal strain. injury necessary. Nor does dent” is Lines, Inc., 654 Freight Navajo v.Wynn or “acci- the “event” itself constitutе (Mo. banc S.W.2d appeals. by the court of held dent” as provide Act make the To so hold would has language Wolfgeher against disease and for insurance only recovery not permit construed been Id. against accident. rather than injury sud- physical a disability from Wolfgeher, at 42 [Hussman].” progressive dis- denly produced but 646 S.W.2d at period of time in the ability arising over In physical change. sudden absence judicially of accident was The definition said: dictum has been case, the In that Wolfgeher. modified not eliminate the statu- “Wolfgeher does his back suffered an dispens- tory requirement of accident but although moving refrigerator while prove employee’s need to es with the in an abnormal perform that work did strain to show an or unusual abnormal Recovery slipa or a fall. manner or suffer essence, permits accident. injury itself was was allowed because encompass concept of ‘accident’ unexpected and arose from injuries result- progressive holding, the court made the ment. In so exposure on-thе-job repeated following observations: supra, at 785.” Wolfgeher, hazards. rule is in contrast with “The Missouri Unitog-Holden Mfg. Westerhold overwhelming majority of states (Mo.App.1986). compensable that a strain is which hold dysrhythmia being performed is on this basis that cardiac though the work It even resulted from an found to have the time of the was routine has been Industries, 772 v. ACF not unusual or abnormal. accident. Low the strain was Larson, (Mo.App.1989). The same Compensation IB Workmen’s Law, (1980) “carpenter’s elbow”. Sansone 38.20 and cases cited there- true of Co., 764 S.W.2d performance Joseph of the usual Sansone Const. in. Where the customary (Mo.App.1989). duties of an change physical or a leads to breakdown *7 Nonetheless, modification of the defi- injury compensable. pathology, in accomplished of the term “accident” nition omitted).... (Citations reconciled with has not been by Wolfgeher, [******] the balance of code, the terms of which “an unex- contemplate an accident be prevents concept This of ‘accident’also hаppening sud- event pected or unforeseen progres- compensation for violently.” denly and repeated injuries which result from sive on-the-job haz- exposure to or constant statutory following example is the An ards, though injuries clearly are even ‘injury’ ‘person- “The terms definition: (Citations omitted).” related. physi- work violenceto injuries’ shall mean al Wolfgeher, S.W.2d body.... These terms of the cal structure pro- except specifically in no case shall impact Wolfgeher of has been suc- The in- chapter construed to in be vided this Supreme in the cinctly by stated Court in occupational disease clude following terms. 287.020.3. form....” § “The end result of was employer is cre- liability of an The basic construction of the a narrow abandon language. following by ated congruency ‘accident’ and attain term liable, be have ... shall majority “Every of states which with the negligence, to furnish of irrespective or unusual eliminated the abnormal injury or personal ... only job compensation not relat- requirement for strain aris- emрloyee by accident type death injuries but for accidents of ed of his em- in the course of and out by Wynn Mr. work related suffered —a disability sustained of (Emphasis nation that Rector ployment_” 287.120.1. added.) July from the 1986 accident. 15% parts of the of Losses for various Schedule that an It is difficult to rationalize The use of body does not include the back. by caused accident can be found be percent per- “approximately the words arising out of and in the course of partial disability” is a reference to merеly ment because it is a work-related injury. the fact Rector suffered a back injury. approved by settlement case, of this the “accident” fix of the commission does not the extent by a September 1987 was neither evidenced disability July from the 1986 acci- Rector’s There was sudden nor an event. unexpected It dent at 15%. disability “triggering no cause”. The gun he would return to work and wear a increasing symp by gradually manifested Moreover, contemplated belt. complaints. The facts of the case toms continuing dis- Rector would suffer from question compensability even un raise ability, including pain and discomfort in Wolfgeher, der as there was neither a sud physical disability activities. Whether example, a den nor an event. For 35%, arising or was 5% occurring gradual carpal syndrome tunnel compromised that accident has been occupational ly has been declared to be lump settled sum settlement. Luggage Manu disease. Collins v. Neevel scope of review this court has (Mo. facturing Company, statute, That been defined statute. App.1972); Risby Jackson v. Pallet and part, provides: Lumber court, question appeal, shall This case could also raise “I. ... The application Injury only questions may of the “Second of law and review reverse, rehearing, Fund” statute. 287.220. modify, remand upon any of the set aside the award necessary it is not to resolve following grounds and no other: I those issues to decide this case. believe Rector’s claim from the “acci- [******] April through September dent” of is barred (4) not sufficient com- That there was arising by the settlement оf his claim in the record to warrant petent evidence the accident 1986 which suf- making 287.495.- award.” § a herniated disc. fered intervertebral 1(4). settlement, part, recites: That in the applied is to That authorization be day July, light following or about 23rd mandate. “[T]hat in an ty, dent employment Springfield, Greene Coun- mately ability; “that City Missouri; [******] arising out Harvey there is now a ... percent permanent partial Springfield, Rector, that said accident resulted body of and as a dispute while sustained an acci- as to nature and in the coursе of whole, approxi- between the employ dis- pain. The claimant lish there was an of increased Louis, 793 S.W.2d *8 omitted).” essential elements of the claim. claimant “In a workers’ only carries the burden evidence Fischer complaints September 1987 is evidence injury or an accident admitted in this v. Archdiocese concerning back case to estab- suffering in- proving case, the (Citation of St. all disability; extent of that because of said February even pain in creased back dispute agreed by parties said it is ap- lump sum settlement before enter into a to sum settle- The claimant’s proved RSMo., 1969, under 287.390 ment Section testi- solely upon the recover rests lump a sum of payment for the ...” Folck, His testi- P. M.D. mony of William following: mony includes “body The reference in that recitation to BY MR. whole, approximately percent per- as a “[CROSS-EXAMINATION partial disability” is not a determi- GEISLER]: complaints Doctor, 23rd, complained of did not these upon July Q. based you you were aware accident, understanding surprise because my it’s injury, his corrеct? your Harvey Rec- serious back opinion it’s that permanent partial dis- tor sustained a hav- surprised I was not he was A. a ability percent troubles; surprised only I was whole? extent.” A. Yes. under The nature the claim considera- surgery Q. And that resulted by contemplat- can best be visualized tion by Dr. Whitlock performed which was allegations of the claim Rector ing the September correct? filed if he had not entered into would have Yes. A. If compromise settlement. the settle- meaning, type surgery process to havе Q. was that? ment What A. A. Q. A. Q. With Q. wearing of turned to let me vertebral disk have back would Harvey Rector. He Is that I would I consider it It basically driving was removal [******] pain you basically you expect rephrase Rector to a saw work, fairly expect pain? fairly told him on patrol to Mr. [sic], according serious, yes. said that after he uniform and he found that he had you serious it. he attributed to the serious of a herniated inter- him even car? March person to, yes.” other back back I’m 3rd, 1988, sitting in pain such as surgery injury? words, injury, sorry, plaints For this even as ticipated. present the settlement those from the accident of arising amendment expected sated complaints. Rector settlement was conclusive den of to include must be construed to The “extent” of the compensation. symptoms were caused from an that term is defined proving reason, claim unexpected, of the definition lump of April resulting I would reverse the award initial are more severe than an- has not sum settlement. by a progressive injuries, 8,1987 exclude second increased сarried by Wolfgeher. determined even unexpected “accident” symptoms bars accident, whether compen- though arising com- This bur- the discomfort he attributed to the
wearing of an ammunition belt
gun sitting patrol car
periods of time? A. That correct. CAVIN, Plaintiff/Appellant, Edgar A. it, Q. you, surprise That did not did Doctor? prob-
IA. felt that he would have that KASSER, Thomas No, surprised; lem. I sur- Defendant/Respondent. only prised the extent. No. 59761. Appeals, Missouri Court of you Q. saw Mr. Rector on March When *9 District, Eastern 3rd, complain he about did One. Division portion of his different 19, 1991. Nov. you complained what about February 3rd, you saw him on 1987? Rehearing and/or Transfer Motion 10, 1992. Court Denied Jan. Supreme No. A. [******] Doctor, believe, you’ve indi-
Q. As I
cated, the fact that returned