Jefferson City Country Club v. Pace

• Decision Date: 27 September 2016
• Docket Number: WD 79405
• Citation: 500 S.W.3d 305
• Parties: Jefferson City Country Club, Appellant, v. Lydia Pace and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondents.
• Court: Missouri Court of Appeals

500 S.W.3d 305

Jefferson City Country Club, Appellant,
v.
Lydia Pace and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondents.

WD 79405

Missouri Court of Appeals, Western District.

OPINION FILED: September 27, 2016

Mary A. Lindsey, St. Louis, MO, for appellant.

Truman E. Allen, Columbia, MO, for respondent Lydia Pace.

Maggie Ahrens, Jefferson City, MO, for respondent Second Injury Fund.

Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Jefferson City Country Club (“Employer”) appeals the unanimous Final Award of the Labor and Industrial Relations Commission (the “Commission”), which awarded Lydia Pace (“Pace”) certain worker's compensation benefits arising out of injuries she sustained while working for Employer. Employer raises eleven claims of error. We affirm.

Factual Background

On October 4, 2002, Pace was employed by Employer as a waitress, bartender, and banquet worker. As she was breaking down some tables for Employer, five to six table toppers fell on her, throwing her back into another table and injuring her neck and right shoulder. Immediately following her injury, Pace consulted a number of doctors regarding her neck and shoulder and was referred to physical therapy and prescribed pain medications. Eventually, Pace was referred to a Dr. Timothy Graven (“Dr. Graven”), who, in August of 2004, performed surgery on Pace's neck. Following the operation, Pace was referred back to a previous doctor, Dr. Theodore Rummel (“Dr. Rummel”), for an operation on Pace's right shoulder. Pace was released from treatment by Dr. Rummel on November 17, 2005. All treatment for Pace's neck and right shoulder and temporary total disability (“TTD”) resulting from these injuries until November 17, 2005 were authorized and paid for as a worker's compensation benefit by Employer.

Following her release from treatment, Pace continued to suffer from shooting pain in her neck and down from her right shoulder. She also experienced numbness and cold down her arm to her right index finger. Further, she was diagnosed with depression. For a short period, Pace worked part-time at a restaurant carrying trays, but experienced increased pain when working and was fired from the job. Pace also worked for a short time for a kitchen setting out plates. Pace saw numerous doctors seeking treatment and disability opinions as to her condition between her release from treatment in November of 2005 and a hearing on temporary

500 S.W.3d 311

benefits by the Division of Workers' Compensation in 2010. A hearing was held and a Temporary Award was issued regarding the extent to which Pace was entitled to temporary benefits on November 30, 2010.

Following the Temporary Award, Pace again underwent surgery on her neck performed by Dr. Michael Chabot (“Dr. Chabot”). Dr. Chabot performed a two level fusion. Following surgery, Pace reported having decreased neck pain but ongoing right shoulder pain that was exacerbated by any kind of repetitive movement.

The parties stipulated that Pace sustained a compensable work-related injury on or about October 4, 2002, while working for Employer. They also stipulated that Pace timely notified Employer of the injury and timely filed a claim. Further, they stipulated as to the rate of compensation, the amount previously paid for TTD, and medical care. It was also stipulated that Pace achieved Maximum Medical Improvement (“MMI”) on August 25, 2011.

A final hearing was conducted and the Final Award was issued by an ALJ with the Division of Workers' Compensation in July of 2015 (“July 2015 Decision”). After an appeal to the Commission, the findings of the ALJ's July 2015 Decision were unanimously adopted but modified in two respects by the Commission: (1) the Commission supplemented the award to provide necessary analysis regarding causation between Pace's work-related injury and her depression; and (2) the Commission granted TTD for a longer duration than had been granted by the ALJ. As modified, the final decision found the following with regard to Pace's entitlement to benefits:

(1) Pace sustained her burden of proof that she injured her neck and right shoulder in the October 4, 2002 accident at work;

(2) Pace sustained her burden of proof that she is permanently and totally disabled (“PTD”) as the result of her neck and right shoulder injuries coupled with her depressive symptoms;

(3) Pace failed to prove Second Injury Fund liability as there was no evidence of permanent disability preceding the October 4, 2002 accident and injury;

(4) Pace sustained her burden of proof that she is entitled to past temporary disability benefits from November 17, 2005 through August 24, 2011;¹ and

(5) Pace sustained her burden of proof that she is entitled to future medical treatment to treat her neck and right shoulder pain, as well as her depression.

Employer now appeals. Additional facts will be presented as necessary in the analysis section below.

Standard of Review

“We ... review the findings and award of the Commission rather than those of the ALJ, to the extent that it departs from the ALJ's ruling.” [Small v. Red Simpson, Inc ., 484 S.W.3d 341, 344 (Mo.App.W.D.2015).] “To the extent that the Commission affirms and adopts the ALJ's findings and conclusions, we review the ALJ's findings and conclusions.” Id. We may modify, reverse, remand for rehearing, or set aside the award of the Commission only if we determine that the Commission acted without or in excess of its powers, that the award was procured by fraud, that the facts found by the Commission do not support the award, or that there was

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not sufficient competent evidence to warrant making the award. Section 287.495.1

“We review the whole record to determine whether there is sufficient competent and substantial evidence to support the award or if the award is contrary to the overwhelming weight of the evidence.” Gleason v. Treasurer of State of Missouri–Custodian of Second Injury Fund , 455 S.W.3d 494, 497 (Mo.App.W.D.2015) (internal citation omitted). “This Court defers to the Commission's factual findings and recognizes that it is the Commission's function to determine credibility of witnesses.” Riley v. City of Liberty , 404 S.W.3d 434, 439 (Mo.App.W.D.2013) (quoting Hornbeck v. Spectra Painting, Inc ., 370 S.W.3d 624, 629 (Mo.banc 2012) ). “This Court may not substitute its judgment on the evidence, and when the evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding.” Riley , 404 S.W.3d at 439. “The Commission's determinations of law, however, are reviewed independently.” Gleason , 455 S.W.3d at 497.

Lincoln Univ. v. Narens , 485 S.W.3d 811, 814–15 (Mo.App.W.D.2016) (footnote omitted).

The overwhelming majority of Employer's arguments request this Court to disregard this long standing standard of review and ask us to reweigh the evidence and find Employer's witnesses to be more credible than the Employee's witnesses. This we cannot and will not do.

Analysis

Depression Causation

Employer's first three points on appeal each challenge the Commission's decision that Pace's depression constitutes a compensable injury under section 287.020.3.² The following evidence was presented to the Commission regarding Pace's depression diagnosis and the causes of her depression.

Dr. David Volarich (“Dr. Volarich”) evaluated Pace in January of 2008 and diagnosed her with having depression. At that time, he referred Pace to a psychiatrist for further evaluation. Dr. Volarich testified in 2012 that Pace continued to suffer from disabling depression. Dr. Barbara Markway (“Dr. Markway”) evaluated Pace in February of 2008 and reached the medical conclusion that Pace suffered from depression, triggered by her 2002 accident and injury, which was exacerbated by her subsequent inability to work. Dr. Michael Jarvis (“Dr. Jarvis”) examined Pace in November of 2008 and concluded that Pace did not suffer from a depression as a result of her injuries but rather was distressed by the workers' compensation claim process. Dr. A.E. Daniel (“Dr. Daniel”), a physician specializing in psychiatry, testified in the 2012 hearing regarding temporary benefits that Pace has a depressive disorder that is disabling. He testified that the pain resulting from Pace's October 4, 2002 accident and injury is the prevailing factor in the development of Pace's psychiatric disorder. Without seeing Pace again, Dr. Jarvis issued a supplemental report disagreeing with the conclusions of Dr. Daniel, concluding that Pace has an adjustment disorder with a depressive mood related to the litigation process rather than

500 S.W.3d 313

depression arising out of her work-related injury.

The ALJ concluded after considering the evidence above that “[b]oth Dr. Daniel and Dr. Jarvis agree that Ms. Pace suffers from depression related to the accident and injury of October...