771 S.W.2d 850 | Mo. Ct. App. | 1989
Larry Riggs filed a claim for Workers Compensation as a result of an injury to his finger sustained on December 10, 1980. The Administrative Law Judge made an award allowing temporary total disability for 94 weeks and for permanent partial disability. Riggs claimed temporary total disability for the period from September 19, 1984 through November 26, 1985. The AU found that the medical evidence did not establish entitlement for temporary total disability for that period and that the evidence did not permit the conclusion that benefits were due for that period on the employee’s testimony alone.
The Labor and Industrial Relations Commission affirmed by a divided vote and Riggs has appealed the denial of his claim for temporary total disability for the period from September 19, 1984 through November 26, 1985. Reversed and remanded.
Riggs testified to the injury he sustained to his right middle finger and the extensive treatment by a number of doctors which he had received. Riggs testified that he was totally disabled from doing any work between September 19, 1984’ and November 26, 1985. He conceded that he did not see any physicians during that period of time.
Dr. Hughes further testified that while some cases analogous to Riggs do improve spontaneously, he did not believe that such would be the case with Riggs’ condition. He stated that Riggs’ condition was permanent.
On November 26, 1985, Riggs saw Dr. Weeks at Barnes Hospital in St. Louis. Dr. Weeks’ diagnosis was reflex sympathetic dystrophy of the right upper extremity. He stated that Riggs was unable to perform any kind of employment, and that it was indefinite when he would be able to return to work. After treatment by Dr. Weeks, Riggs was released to return to work on April 28, 1986.
On this appeal, it is the function of this court to determine whether or not the Commission’s findings are supported by competent and substantial evidence and not contrary to the overwhelming weight of the evidence. Bell v. General Motors Assembly Div., 742 S.W.2d 225, 226[1] (Mo.App.1987). In its brief, the employer contends there was no evidence to establish Riggs was disabled between September 1984 and November 1985. It is Riggs’ position that his testimony about his disability and inability to work during the period in question, was sufficient to provide substantial evidence in support of an award of temporary total disability. Moreover, Riggs contends that under Ford v. Bi-State Development Agency, 677 S.W.2d 899 (Mo.App.1984), and Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886 (Mo.App.1975), that his testimony, standing alone, was substantial evidence upon which an award could have been based.
In Fogelsong, this court stated that “Mr. Fogelsong’s own testimony and that of his wife and pastor constitute competent evidence on his disability-free condition prior to his accident and his total disability as a result of the accident.” Id. at 892[4-9]. This court further held that the Commission was not solely dependent upon the medical evidence but that its finding is to be made from the whole evidence. This court also stated that “[h]is testimony alone, if believed, constitutes substantial evidence to establish that he sustained an injury * * * and * * * ‘of the nature, cause, and extent of his disability.’ ” Id. at 892. Quoting from Smith v. Terminal Transfer Co., 372 S.W.2d 659, 665[10] (Mo.App.1963).
The Commission took the view that it could not base an award upon Riggs’ testimony alone, because under Ford the claimant’s testimony would be sufficient only if it were evidence that was within the realm of understanding by lay persons. Ford did mention lay understanding of a claimant’s testimony, however, the court stated that “valid awards need not always be accompanied by a definite medical diagnosis.” 677 S.W.2d at 904. This view of the law by the Commission is erroneous. But even if the
Under Ford and Fogelsong the testimony of Riggs was sufficient upon which to base an award of temporary disability. Further, there was medical evidence to support Riggs testimony which the AU and the Commission failed to mention. The employer did not introduce any evidence to show that Riggs was not totally disabled during the period in question. The finding by the Commission that Riggs was not entitled to compensation for the period claimed is not supported by competent and substantial evidence.
The award of the Commission that Riggs was not entitled to compensation for temporary total disability from September 19, 1984 through November 26, 1985 is not supported by competent and substantial evidence. Such award is reversed and this cause is remanded to the Commission for further proceedings. Stepaneck v. Mark Twain Hotel, 104 S.W.2d 761, 767 (Mo.App.1937).
All concur.
. No claim is made for permanent total disability on this appeal.