Jim Plunkett, Inc. and Regent Insurance Company v. Michael Ard (Deceased), Victoria Ard , 499 S.W.3d 333 ( 2016 )

In the
Missouri Court of Appeals
Western District

JIM PLUNKETT, INC., AND 
REGENT INSURANCE COMPANY,  WD79210
Appellants,  OPINION FILED:

v.  September 13, 2016

MICHAEL ARD (DECEASED); 
VICTORIA ARD, 

Respondents. 
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Before Division Four: Mark D. Pfeiffer, Chief Judge Presiding,
James Edward Welsh, and Edward R. Ardini, Jr., Judges
Jim Plunkett, Inc., and Regent Insurance Company1 appeal from the Labor and Industrial
Relations Commission's determination that they were liable for permanent partial disability
benefits due to an injury Michael Ard (now deceased) sustained while at work and that the
personal representative of Ard's estate is entitled to the accrued and unpaid compensation due
Ard in the amount of $99,333.00 plus interest. Plunkett contends that the Commission failed to
make factual findings supporting the award of permanent partial disability benefits as required
1
We refer to Jim Plunkett, Inc., and Regent Insurance Company collectively as Plunkett.
by section 287.460.1, RSMo Cum. Supp. 2013, and that the Commission erred in awarding Ard's
personal representative both accrued and unaccrued benefits. We affirm.
Ard worked for Jim Plunkett, Inc., removing window frames, installing window frames,
and installing glass. On October 15, 2010, large plates of glass fell upon Ard causing multiple
injuries, including a pubic fracture, pelvic fracture, sacral fracture, a right displaced distal fibula
fracture, instability of the ankle joint, and left-sided rib fractures. On October 16, 2010, Dr.
David Paul performed an open reduction and internal fixation for Ard's right distal fibular
fracture. Thereafter, Ard's care and treatment was transferred to Dr. Christopher Wise, an
orthopedic trauma surgeon, for treatment of Ard's pelvic and sacral fractures. On October 18,
2010, Dr. Wise performed a manipulation of Ard's pubic fracture and found that the pubic
fracture was stable and that no internal fixation was necessary. For the sacral fracture, Dr. Wise
inserted a screw across the fracture to hold it in place.
From October 21 through October 29, 2010, Ard was in an inpatient rehabilitation unit at
North Kansas City Hospital. After discharge from the rehabilitation unit, Ard continued to
follow up with Dr. Wise for medical treatment following his injuries. Ard complained about
right foot pain and left shoulder pain during visits to Dr. Wise. An MRI scan of Ard's left
shoulder revealed a comminuted distal clavicle fracture with evidence of intermediate to high
grade sprain of the acromioclavicular joint, a non-displaced fracture of the humeral head and
neck, mild biceps pulley tendinopathy without a rupture, supraspinatus tendinopathy without full
thickness tear, and signal alteration of the labrum consistent with possible partial injury. Dr.
Wise recommended non-operative treatment with rehabilitation and referred Ard to ARC
Physical Therapy for treatment.
2
On December 15, 2010, Dr. Wise determined that Ard was able to return to work
performing “sitting work.” Ard returned to work at the end of December 2010 and worked in the
office. On April 6, 2011, Dr. Wise released Ard at maximum medical improvement with a 50
pound weight lifting restriction.2 Dr. Wise imposed no limitations on squatting, crawling,
kneeling, climbing, pushing, pulling, standing, walking, or sitting. Ultimately, Dr. Wise
determined that Ard sustained a 12 percent disability to the body as a whole.
Following Dr. Wise's release, Ard went to Dr. James Zarr, a board certified physician in
physical medicine and rehabilitation and electrodiagnostic medicine, for pain management. (TR.
1506). Dr. Zarr evaluated Ard on three separate occasions and determined that the restrictions
imposed by Dr. Wise were appropriate and that Ard could return to work within those
restrictions. Dr. Zarr determined that Ard sustained a 20 percent permanent partial disability to
the body as a whole.
On July 23, 2011, Dr. Brent Koprivica evaluated Ard. Under a hypothetical where a
vocational expert would conclude that Ard was not totally disabled, Koprivica assigned a global
65 percent permanent partial disability to the body as a whole. According to Koprivica, the
combined disability considered the synergism of combining the multiple physical impairments
attributable to the October 15, 2010 work accident.
The Division of Worker's Compensation Administrative Law Judge held a hearing on
August 23, 2013, on Ard's timely filed claim for worker's compensation. Before the case was
decided, Ard was murdered on September 14, 2013. Ard died intestate. The Circuit Court of
2
Ard claimed that he was laid off from his job with Plunkett on April 8, 2011, because work was slow.
Plunkett claims that he was terminated because he violated safety rules.
3
Jackson County subsequently appointed Ard's father, Gilbert Ard, personal representative of
Ard's estate.
After Ard's death, the parties filed a motion with the ALJ to determine dependency
pursuant to section 287.230, RSMo Cum. Supp. 2013, and section 287.240, RSMo 2000. The
ALJ held a hearing on the motion, and Victoria A. Ard appeared at the hearing through her
attorney. Victoria Ard asserted that she was married to Ard at the time of his injury and death
and that, therefore, she was Ard's dependent. The evidence established that Victoria Ard married
David Pflugradt in 1992, and that the marriage was never dissolved or otherwise nullified prior
to Victoria Ard marrying Ard in September of 2001. At the hearing, Victoria Ard introduced an
exhibit into evidence establishing that, on January 27, 2014, the Circuit Court of Jackson County
annulled her marriage to Pflugradt. The ALJ determined that, based upon the decree and order of
the Jackson County Circuit Court, the marriage of Victoria Ard and Pflugradt was void and was
invalid from its inception because Pflugradt lacked the capacity to contract under state law. The
ALJ, therefore, determined that Victoria Ard was the dependent of Michael Ard.
As to permanent partial disability benefits, the ALJ determined that Ard had a permanent
partial disability impairment of 65 percent to the body as a whole based on the rating of Dr.
Koprivica. In making such determination, the ALJ stated in his conclusions of law, "I find Dr.
Koprivica's opinion to be credible on the body as a whole rating." The ALJ further found that
Dr. Wise's and Dr. Zarr's disability ratings lacked credibility. The ALJ concluded that Plunkett
was liable for permanent partial disability benefits in the amount of $99,333.00.
Plunkett and the personal representative of Ard's estate appealed this decision to the
Labor and Industrial Relations Commission. On October 22, 2015, the Commission reversed the
ALJ's finding that Victoria Ard was Ard's dependent and awarded all payable benefits to Ard's
4
personal representative.3 The Commission affirmed the ALJ's award of accrued and unpaid
compensation due Ard in the amount of $99,333.00 and incorporated the ALJ's award and
decision to the extent that it was not inconsistent with the Commission's decision and award.
Plunkett appeals.
Our review of the Commission's decision is governed by article V, section 18, of the
Missouri Constitution and section 287.495, RSMo 2000. Article V, section 18, provides for
judicial review of the Commission's award to determine whether the decision is authorized by
law and whether it is "supported by competent and substantial evidence upon the whole record."4
Under section 287.495, we must affirm unless the Commission acted in excess of its powers, the
award was procured by fraud, the facts do not support the award, or insufficient competent
evidence exists to warrant the making of the award. In determining whether the award is
supported by sufficient competent and substantial evidence, i.e., is contrary to the overwhelming
weight of the evidence, we examine the evidence in the context of the whole record, viewing the
evidence objectively. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc
3
Ard's estate filed motions with the Commission asking to submit additional evidence regarding Victoria
Ard's and Pflugradt's marriage. The Commission accepted two exhibits into evidence. The first exhibit established
that the judgment and decree of annulment, which was entered by the Jackson County Circuit Court pertaining to the
marriage of Victoria Ard and Pflugradt, had been set aside and vacated by the Jackson County Circuit Court on
September 15, 2014. The second exhibit established that, the Jackson County Circuit Court issued a judgment
denying Victoria Ard's petition for declaration of invalidity of marriage on February 5, 2015. Based upon this
evidence, the Commission concluded that Victoria Ard remains married to Pflugradt and that she is not Ard's
dependent. No one appeals from this determination.
4
We review the findings of the Commission and not those of the ALJ. Arciga v. AT & T, 366 S.W.3d 91,
94 (Mo. App. 2012). However, where the Commission's award attaches and incorporates the ALJ's award and
decision, as in this case, we consider the findings and conclusions of the Commission as including the ALJ's award.
Id.
5
2003). In the absence of fraud, however, the Commission's findings of fact are "conclusive and
binding." § 287.495.1. Thus, we ""defer to the commission's finding on issues of fact, the
credibility of the witnesses, and the weight given to conflicting evidence.'" Greer v. SYSCO
Food Servs., 475 S.W.3d 655, 664 (Mo. banc 2015). We review issues of law de novo. Id.
In its first point on appeal, Plunkett contends that the Commission failed to make factual
findings supporting the award of permanent partial disability benefits as required by section
287.460.1.
"Section 287.460.1 mandates that an award in a contested workers' compensation case be
accompanied by findings of fact and conclusions of law." Stegman v. Grand River Reg'l
Ambulance Dist., 274 S.W.3d 529, 533 (Mo. App. 2008). "The Missouri Supreme Court has
declared that such statutory requirements contemplate an unequivocal affirmative finding as to
what the pertinent facts are." Id. (citation and internal quotation marks omitted). "The factual
findings are necessary so that we can know what a decision means before the duty becomes ours
to say whether it is right or wrong." Id. at 534 (citation and internal quotation marks omitted).
In this case the ALJ in its award and decision, which the commission attached and
incorporated into its Final Award, set forth Koprivica's findings in regard to Ard's injuries and
disability rating. In the "Evidence Presented" section of its decision, the ALJ stated:
Mr. Ard saw Dr. Koprivica for an evaluation on July 23, 2011. Dr.
Koprivica initially only addressed Mr. Ard's physical injuries. He opined that,
based on the injuries to Mr. Ard's left shoulder, chest, pelvis, right foot, right
ankle, and acting under the hypothetical that a vocational expert determined that
Mr. Ard was not permanently and totally disabled, Mr. Ard had a 65% permanent
disability to the body as a whole. This rating was based on the synergism of
combining the multiple physical impairments to each body part.
6
The ALJ also summarized Dr. Koprivica's deposition testimony concerning the multiple injuries
that Ard sustained as a result of the October 15, 2010 work accident and concerning the
restrictions that would be placed on Ard's physical activities as a result of the multiple injuries he
suffered. The ALJ then stated:
In assessing the October 15, 2010 work-related injuries, Dr. Koprivica
apportioned 30 percent permanent partial disability of the left upper extremity at
the 232-week level for the injury to Mr. Ard's left shoulder. For Mr. Ard's
multiple rib fractures, with the ongoing chest wall pain that will impact on his
limit to push and pull forcefully, Dr. Koprivica assigned a 5 percent permanent
partial disability to the body as a whole. For the multiple pelvic fractures that
required surgical intervention, Dr. Koprivica apportioned 25 percent permanent
partial disability to the body as a whole. For the right ankle (which was basically
a fracture dislocation of the ankle that required surgery), Dr. Koprivica
apportioned 35 percent permanent partial disability of the right foot at the level of
the ankle at the 155 week level.
...
Under the hypothetical that a vocational expert determined Mr. Ard was
not totally disabled, Dr. Koprivica would assign a global 65 percent permanent
partial disability to the body as a whole. This combined disability considers the
synergism of combining the multiple physical impairments attributable to the
October 15, 2010 work accident.
Plunkett argues that, when an ALJ merely outlines and summarizes a witness's testimony,
it does not meet the requirements of section 287.460.1 for findings of fact. Such is true when the
ALJ fails to indicate what weight or credibility it gave to any of the evidence. Loepke v. Opies
Transport, Inc., 945 S.W.2d 655, 661 (Mo. App. 1997), overruled on other grounds by Hampton,
121 S.W.3d at 223, 226. In this case, however, the ALJ explicitly stated, "I find Dr. Koprivica's
opinion to be credible on the body as a whole rating." The ALJ further concluded that Ard had a
permanent partial disability of 65 percent to the body as a whole "based on the rating of Dr.
Koprivica." "[D]etailed summaries of the facts are not required in an agency's order and
report[.]" Carver v. Delta Innovative Servs., 379 S.W.3d 865, 870 (Mo. App. 2012) (citation and
7
internal quotation marks omitted). The findings just have to be sufficient to demonstrate how the
controlling issues were decided. Given that the ALJ outlined and summarized Koprivica's
testimony and then found his opinion to be credible, the Commission's decision that Ard had a 65
percent permanent partial disability to the body as a whole was supported by substantial and
competent evidence.
We, however, caution the Commission that in the future it should make factual findings
rather than summarizing witnesses' testimony. Summaries may be "a useful reference tool for
the ALJ's own use in understanding the facts." Stegman, 274 S.W.3d at 536. The summaries,
however, "are of little value to this court" and "cannot substitute for factual findings (along with
conclusions of law) in the opinion itself." Id. "When received in isolation, the neutrally written
summaries constitute an invitation for us to exercise our own judgment in drawing inferences in
order to make our own findings as to pertinent factual matters, which we are not permitted to
do." Id.
In its second point on appeal, Plunkett contends that the Commission erred in awarding
Ard's personal representative both accrued and unaccrued benefits. We disagree.
Section 287.230.1 provides:
The death of the injured employee shall not affect the liability of the
employer to furnish compensation as in this chapter provided, so far as the
liability has accrued and become payable at the time of the death, and any accrued
and unpaid compensation due the employee shall be paid to his dependents
without administration, or if there are no dependents, to his personal
representative or other persons entitled thereto, but the death shall be deemed to
be the termination of the disability.
8
The dictionary definition of "accrued" has been defined as "'to come into existence as a legally
enforceable claim.'" Cantrell v. Baldwin Transp. Inc., 296 S.W.3d 17, 20 (Mo. App. 2009)5
(quoting Merriam-Webster's Collegiate Dictionary (11th ed. 2003)). A "permanent partial
disability" is "a disability that is permanent in nature and partial in degree." Id. "The level of
permanent partial disability associated with an injury cannot be determined until the injury
'reaches a point where it will no longer improve with medical treatment' or, in other words,
reaches maximum medical improvement." Id. (quoting Cardwell v. Treasurer of State of Mo.,
249 S.W.3d 902, 910 (Mo. App. 2008)). The Cantrell court, therefore concluded that the plain
language of the term "accrued" as used in section 287.230.1 means that a "[c]laimant's right to
permanent partial disability had to have existed as a matter of fact prior to [an] [e]mployee's
death in order for [the claimant] to be entitled to compensation" and that no such right accrues
until an employee reaches maximum medical improvement. Cantrell, 296 S.W.3d at 21.
In our case, no one contests that Ard had reached maximum medical improvement on
April 6, 2011. Thus, Ard's permanent partial disability of 65 percent to the body as a whole
accrued when Dr. Wise released Ard at maximum medical improvement on April 6, 2011. The
Commission determined that Ard was entitled to $99,333.00 for his permanent partial disability
of 65 percent to the body as a whole. Those benefits accrued at the time that Ard reached
maximum medical improvement and not at the time benefits were paid.6 Pursuant to section
5
This opinion was authored by Supreme Court Judge Zel Fischer who was sitting with the Southern District
of this court as a Special Judge on the case.
6
Plunkett relies upon section 287.230.2, which discusses the resolution of "unpaid unaccrued
compensation" after the death of the employee (where the employee's death is not caused by the workplace injury).
Here, however, there is no unaccrued compensation benefit relevant to Mr. Ard's claim for worker's compensation;
hence, section 287.230.2 is inapposite to the resolution of this case.
9
287.230.1, the Commission, therefore, did not err in ordering that the accrued and unpaid
compensation due Ard in the amount of $99,300.00 was payable to Ard's personal representative.
We affirm the Commission's decision.
/s/ James Edward Welsh
James Edward Welsh, Judge
All concur.
10