March v. Treasurer of State of Mo.-Custodian of Second Injury Fund
| Decision Date | 31 August 2021 |
| Docket Number | WD84377 |
| Parties | ROBERT MARCH, Appellant, v. TREASURER OF THE STATE OF MISSOURI - CUSTODIAN OF THE SECOND INJURY FUND, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Labor and Industrial Relations Commission
Before: Edward R. Ardini, Jr., Presiding Judge, and Mark D Pfeiffer and W. Douglas Thomson, Judges
This workers' compensation case serves as a reminder that the question of causation is a medical question. Further, while we defer to the Labor and Industrial Relations Commission's ("Commission") credibility determinations-including as to expert medical testimony-and the Commission is free to choose between conflicting expert medical opinions or to otherwise choose to disbelieve all of the expert medical opinions, where the Commission finds that certain uncontradicted expert medical testimony as to causation is credible, it is not entitled to supply its own contrary lay opinion as to causation absent expert medical testimony to support that contrary opinion. Here, the Commission has done just that, Appellant Robert March ("Employee") challenges the sufficiency of evidence to support the Final Award Denying Compensation ("Final Award"), and we conclude that the Final Award must be reversed and remanded to the Commission for further proceedings as directed in today's ruling.
Employee (born 1/3/1962) began working for Milbank Manufacturing ("Employer") in 1996. Employee is 6 feet 3 inches tall, is morbidly obese (450 to 500 pounds), and has a high school education.
Employer manufactures electrical junction boxes and railroad crossing boxes. Employee's job responsibility was to fabricate metal electrical boxes via metal inert gas welding and stick welding followed by sanding the finished product with a 20-pound grinder. Employee's repetitive work averaged fabrications of between 300 and 400 metal boxes per day. The boxes ranged in weight from 10 to 500 pounds.
Sometime around April 2015, Employee started having problems with his upper extremities, complaining of bilateral hand problems and shooting pains in his arms, shoulders, and neck area. Employer sent Employee to Dr. Thomas Winston, who concluded that Employee's bilateral upper extremity complaints were work-related and provided medical treatment to Employee including an injection into Employee's right shoulder. Employee was later seen by Dr. Jerry Meyer, Dr. Michael Waldschmidt, and Dr. William Hopkins, all of whom agreed that Employee's bilateral carpal tunnel entrapment upper extremity injuries, at maximum medical improvement, were such that Employee's medical restrictions were: no overhead work; not lift over 20 pounds; not perform repetitive tasks with his arms; not use equipment that vibrates; not stand or walk more than twenty minutes at a time; and not sit or stand continuously for more than an hour at a time.
Employee settled his permanent partial disability claim for his bilateral upper extremity injuries with Employer for an impairment rating of 27.5% to the body as a whole (110 weeks of permanent partial disability).
Employee suffered from: morbid obesity for many years prior to his primary injury; carpal tunnel syndrome requiring surgery in 1989; thyroid issues requiring surgery in 1996 hypothyroidism and hypertension requiring treatment in 2010-11; transient ischemic attack in 2011; hemorrhoids condition requiring surgery in 2011; left leg laceration during a hunting trip requiring topical treatment for a stasis ulcer in 2012-13 and again in February of 2015; and left shoulder rotator cuff injury requiring repair in 2014.
All of this said, the most significant of Employee's preexisting medical conditions (and relevant to our discussion today) is his bilateral lower extremity condition in which he initially began exhibiting symptoms of radiating pain down both legs and into his swollen ankles in 2005 secondary to morbid obesity and venous varicosities in association with obesity. But, given the work responsibilities performed for Employer over the years, [1] Employee's bilateral lower extremity condition continued to deteriorate prior to Employee's primary injury, although Employee worked continuously for Employer until his upper extremity injuries in 2015. Ultimately, Dr. Hopkins separated out non-work-incurred versus work-incurred percentages of preexisting disability to Employee's bilateral lower extremities and opined that Employee's preexisting "cumulative work-incurred injuries" to his bilateral lower extremities were 30% to each leg (rated at the 160-week level-or 48 weeks per leg) plus a 15% loading factor applied bilaterally (an additional 12 weeks per leg).
Given the testimony of multiple vocational experts as well as the uncontradicted expert medical opinion of Dr. Hopkins, there is no dispute that Employee is permanently and totally disabled.
Dr Hopkins ultimately concluded that the combination of Employee's preexisting and work-incurred bilateral lower extremity disability when combined with his primary bilateral upper extremity injury and resulting permanent partial disability resulted in Employee's permanent total disability ("PTD"). Of import, there was no other medical expert besides Dr. Hopkins who opined on the cause of Employee's PTD.
The Administrative Law Judge ("ALJ") and Commission both acknowledged Employee's PTD, but both administrative tribunals also concluded that the Treasurer of the State of Missouri -Custodian of the Second Injury Fund ("SIF") was not liable for the payment of PTD compensatory payments to Employee, albeit for different reasons. But, the "differences" are of consequence to our discussion today.
The ALJ's findings in his ruling essentially concluded that he did not find Dr. Hopkins's opinion to be credible as to the medical cause of Employee's PTD and, hence, expressly concluded that "[Employee] has not met his burden of proof to establish Second Injury Fund liability under the current pronouncement of Chapter 287." Employee appealed the ALJ's ruling to the Commission.
With regard to the ALJ's rationale rejecting Dr. Hopkins's expert medical opinion as to the cause of Employee's permanent and total disability, the Commission expressly stated: "We disavow these findings."
In fact, the Commission expressly noted in its Final Award that the Employee had presented credible evidence "to establish Employee's theory of the case." In other words, the Commission found Dr. Hopkins's expert medical opinion as to the cause of Employee's PTD to be plausible and credible; however, a majority of the Commission's three-member panel concluded that "it was equally likely that employee's preexisting injuries (without the addition of the primary injury) resulted in employee's permanent and total disability."[2]
As this opinion discusses, there is a difference between concluding that the uncontradicted expert medical opinion testimony on causation is not credible versus credible but equally likely to another cause in which there is no expert medical testimony to support the Commission's alternative theory of the case as to causation.
Further facts as relevant to our analysis are presented below.
In Employee's point on appeal, Employee asserts a sufficiency-of-the-evidence challenge to the Commission's Final Award.
On appeal, we review the Commission's decision to ensure it is "'supported by competent and substantial evidence.'" White v. ConAgra Packaged Foods, LLC, 535 S.W.3d 336, 338 (Mo. banc 2017) (quoting Mo. Const. art. V, § 18).
The Commission's decision will . . . be disturbed [only] if: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award.
Id.; see also Cosby v. Treasurer, 579 S.W.3d 202, 206 (Mo. banc 2019) ( the same).
"'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.'" Jefferson City Country Club v. Pace, 500 S.W.3d 305, 311 (Mo. App. W.D. 2016) (quoting Small v. Red Simpson, Inc., 484 S.W.3d 341, 344 (Mo. App. W.D. 2015)).
Upon review of the Commission's decision, we view the evidence objectively and not in the light most favorable to the decision of the Commission. Where a Commission's decision is based on its interpretation and application of the law, we review the Commission's conclusions of law and its decision de novo. However, we defer to the Commission's factual findings on issues such as the credibility of witnesses and the weight given to their testimony. This includes the Commission's evaluation of expert medical testimony. The Commission, as the finder of fact, is free to believe or disbelieve any evidence.
Treasurer of the State of Mo. v. Majors, 506 S.W.3d 348, 352 (Mo. App. W.D. 2016) (internal quotation marks omitted) (citations omitted).
In Employee's sole point on appeal, Employee challenges the sufficiency of the evidence supporting the Commission's Final Award. Employee asserts that the issue determining SIF liability was one of causation, there was only one uncontradicted expert medical opinion on the topic of causation, the Commission first credited that expert medical opinion as plausible, but then the Commission erroneously asserted its own lay opinion on the topic of causation to deny compensation to Employee in its Final Award and...
To continue reading
Request your trial