Farmer v. Treasurer of Mo.

• Decision Date: 18 December 2018
• Docket Number: No. SD 35637,SD 35637
• Citation: 567 S.W.3d 228
• Parties: Vernis FARMER, Claimant-Appellant, v. TREASURER OF the State of MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent-Respondent.
• Court: Missouri Court of Appeals

567 S.W.3d 228

Vernis FARMER, Claimant-Appellant,

v.TREASURER OF the State of MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent-Respondent.

No. SD 35637

Missouri Court of Appeals, Southern District, Division One.

Filed: Dec. 18, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied January 2, 2019

Application for Transfer to Supreme Court Denied March 5, 2019

MICHAEL A. MORONI, Bloomfield, Mo, for Appellant.

CRYSTAL L. WILLIAMS, Cape Girardeau, Mo, for Respondent.

DON E. BURRELL, P.J.

Vernis Farmer ("Claimant") appeals the Final Award Denying Compensation ("final award") issued by the Labor and Industrial Relations Commission ("the Commission"). The final award upheld a decision of an Administrative Law Judge ("ALJ") that denied Claimant benefits from the Treasurer of the State of Missouri, Custodian of the Second Injury Fund (the "Fund"). In two points on appeal, Claimant asserts the Commission erred in admitting two Fund exhibits offered as evidence of Claimant’s prior convictions for social security fraud. Claimant asserts that without those exhibits, the award was "not supported by competent and substantial evidence[.]" Because the challenged exhibits were cumulative to Claimant’s admission that he had committed such fraud, we find no reversible error and affirm.

Applicable Principles of Review

The Commission adopted the findings and conclusions of the ALJ, which we review as if made by the Commission. Angus v. Second Injury Fund , 328 S.W.3d 294, 297 (Mo. App. W.D. 2010) (citing ABB Power T & D Co. v. Kempker , 236 S.W.3d 43, 48 (Mo. App. W.D. 2007) ). We will not overturn the Commission’s decision on the admissibility of evidence absent an abuse of discretion. Calvert v. Treasurer of State, Custodian of Second Injury Fund , 417 S.W.3d 299, 307 (Mo. App. S.D. 2013) (citing Garrett v. Treasurer of State, Custodian for Second Injury Fund , 215 S.W.3d 244, 249 (Mo. App. S.D. 2007) ).

All final decisions, findings, rules and orders on [sic] any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.

Mo. Const. art. V, section 18 (emphasis added).

Section 287.495¹ provides:

Upon appeal, no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(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 ;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award .

2. The provisions of this section shall apply to all disputes based on claims arising on or after August 13, 1980.

(Emphasis added.)

Perhaps because the word "award" appears so prominently (but not exclusively) in section 287.495 as describing final commission decisions, the division and commission typically title their ultimate decision an "award" whether benefits are granted or denied. This ubiquity is unfortunate because it heightens certain logical difficulties we note and address later in this opinion.

In any event, our appellate courts have interpreted the above-noted constitutional and statutory provisions as producing the following standard of review:

In order to determine 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 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 on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence." Treasurer of State–Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013).

Winingear v. Treasurer of State-Custodian 2nd Injury Fund , 474 S.W.3d 203, 207 (Mo. App. W.D. 2015) (emphasis added).

While this standard of review works perfectly well when the "award" being appealed is a grant of benefits, we find it extremely difficult to apply our high court’s directive in Hampton to "examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award" in cases involving a final decision that denies the claimant’s request for benefits, i.e., what might more accurately be described as a "non -award." 121 S.W.3d at 222-23.

In reviewing final decisions adverse to the claimant – the party with the burden of persuasion – the standard of review set forth in Hampton seems, frankly, nonsensical, and we believe it should be reconsidered for the reasons contained in our high court’s more recent decision in White v. Director of Revenue , 321 S.W.3d 298, 305 (Mo. banc 2010) (stating, "When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party" (internal citation omitted) ). However, both the majority and dissenting opinions in Malam v. State, Dep't of Corr. , 492 S.W.3d 926, 928, 930 (Mo. banc 2016), purported to apply the Hampton standard in their differing analyses of the Commission’s affirmance of a decision denying compensation, so we will attempt to apply it here to the best of our ability.

The Evidence

At the time of the final hearing in this case, Claimant was 58 years old. He had begun working as chief of police for the city of Hayti Heights ("Employer") in 2001. As relevant to this case, Claimant alleged to have sustained two separate injuries while working for Employer: (1) an injury to his cervical spine

at levels C3 – C7 incurred on December 3, 2007 while breaking up a fight between two individuals; and (2) stress and psychological problems beginning on December 26, 2007 from working long hours. Claimant settled with Employer on both claims: 12.5% of the body as a whole for the alleged injury to his neck and 9.3% of the body as a whole for the stress and psychological issues.

Claimant’s assertion of Fund liability is that "he is [permanently and totally disabled ("PTD") ] from a combination of the December 3, 2007 accident and injury and pre-existing conditions. The stress in the later claim is attributable also to the December 3, 2007 claim[.]"

Claimant’s testimony regarding his prior history of education, work, and injuries was as follows. Claimant graduated from the military police academy in Alabama, the Police Science Institute in Pennsylvania, the Police Academy in Cape Girardeau, Missouri, and the Missouri Highway Patrol radar instructor’s school. He served in the military from 1976 until 1979, and again from 1980 through 1984. Claimant also served in the National Guard for one year, and he received an honorable discharge.

In 1996, Claimant was working as a security officer for a Chicago hotel when he fell down about fifteen steps and injured his neck and lower back. Claimant was then unemployed until he went to work in 1998 for a Memphis corporation as "custom protection." Claimant resigned from this job after approximately two months due to "dizzy spells and his body hurting." Claimant applied for and received Social Security Disability benefits in 1998.

In 2002, while working as police chief for Employer, Claimant fell over backward in his chair and injured his neck again.

In 2003, the Social Security Administration ("Social Security") learned that Claimant had been working for Employer, and it determined that Claimant owed $15,000 in social security disability benefits he had received while engaged in that employment. Social Security stopped paying Claimant benefits in 2004. One month later, Claimant reported that he had stopped working due to his medical condition and requested an expedited reinstatement of his benefits, which Social Security granted subject to a reduction for the prior, overpaid amounts.

In 2004, a Veterans Administration ("VA") doctor indicated that Claimant might be looking for disability for his neck pain, but the doctor advised that he could not "write any disability regarding his neck pain[.]"

In 2005, while still working for Employer, Claimant alleged that he fell down during a pursuit and injured his knees

. Claimant received treatment in the emergency room, and he was diagnosed with bilateral contusions and an abrasion of his left knee.

On or about December 3, 2007, the date of one of two underlying claims at issue in this case, Claimant alleged that he injured his neck while working for Employer when he tried to break up a fight between two individuals. Claimant described the individuals as applying "[e]xtreme force pushing against my arms, shoulder, and hands causing [e]xtreme pressure and pain to radiate[ ] in my neck and back area." Claimant testified that he could not remember whether he received any medical treatment for this injury until he presented to a VA hospital on December 20, 2007, claiming neck and back pain not associated with any recent injury. The first mention in the medical records of Claimant’s neck injury due to breaking up the fight was on February 25, 2008. The doctor’s notes from that visit indicate that no neurological deficit was apparent and that...