Nichols v. Belleview R-Iii Sch. Dist.

• Decision Date: 16 October 2017
• Docket Number: No. SD 34884.,SD 34884.
• Citation: 528 S.W.3d 918
• Parties: Colleen NICHOLS, Claimant-Respondent, v. BELLEVIEW R-III SCHOOL DISTRICT, Employer-Appellant, and Missouri United School Insurance Council, Insurer-Appellant, and Treasurer of Missouri, as Custodian of Second Injury Fund, Additional Party-Respondent.
• Court: Missouri Court of Appeals

528 S.W.3d 918

Colleen NICHOLS, Claimant-Respondent,

v. BELLEVIEW R-III SCHOOL DISTRICT, Employer-Appellant,andMissouri United School Insurance Council, Insurer-Appellant,andTreasurer of Missouri, as Custodian of Second Injury Fund, Additional Party-Respondent.

No. SD 34884.

Missouri Court of Appeals, Southern District, Division Two.

Filed: October 16, 2017

Appellants' Attorney: Mary A. Lindsey and Karen A. Mulroy, of St. Louis, MO.

Respondent Nichols's Attorney: Kenneth A. Seufert, of Farmington, MO.

Respondent Fund's Attorney: Joshua Hawley, Attorney General, of Jefferson City, MO, and Crystal L. Williams, Assistant Attorney General, of Cape Girardeau, Missouri.

WILLIAM W. FRANCIS, JR., J.

Belleview R-III School District and Missouri United School Insurance Council (collectively "Belleview")¹ jointly appeal the award of the Labor and Industrial Relations Commission ("Commission"),² which awarded permanent total disability benefits and future medical expenses to Colleen Nichols ("Nichols"), Belleview's former employee. Belleview raises four points on appeal. Finding no merit to any of Belleview's points, we affirm the award of the Commission.

Standard of Review

This Court's standard of review accords narrow authority to countermand an award of the Commission. Belleview's misapprehension of this authority directly, and necessarily, implicates our disposition as to its four points on appeal. A brief exposition as to this authority is therefore necessary to frame the outcome in this matter.

Our constitutional authority to review Commission decisions derives from Mo. Const. art. V, § 18 (amended 1976),³ Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003), and our statutory authority from section 287.495.⁴ White v. Anderssen Mobile X-Ray Service, 389 S.W.3d 222, 224 (Mo.App. E.D. 2012).

In each of its four points, Belleview purports to impute this Court's authority to countermand an award of the Commission based upon a lack of "sufficient competent evidence in the record," per section 287.495.1(4). In a section 287.495.1(4) challenge, the reviewing court:

• Makes a single inquiry only as to whether there was sufficient competent evidence⁵ in the record to support the award, and not whether the award was against the overwhelming weight of the evidence—this is so because the absence of sufficient competent evidence would necessarily mean that the award was contrary to the overwhelming weight of the evidence;

• Looks to the "whole record" for evidentiary support; and

• Does not view the evidence and reasonable inferences available from the "whole record" in the light most favorable to the award.

See Hampton , 121 S.W.3d at 222-23. Reviewing "the whole record," however, does not mean we consider everything in the record. Authorized factual and credibility findings of the Commission, explicit or implied, permanently fix our attitude toward the evidence implicated thereby.⁶ Id. at 223 ; Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629, 631-32 (Mo. banc 2012). The remainder of the record we view objectively. Jim Plunkett, Inc. v. Ard, 499 S.W.3d 333, 337 (Mo.App. W.D. 2016). A section 287.495.1(4) challenge succeeds only in the demonstrated absence of sufficient competent substantial evidence; evidence contrary to the award of the Commission, regardless of quantity or quality, is "irrelevant." Hornbeck, 370 S.W.3d at 629.

Summarily, in a post - Hampton section 287.495.1(4) challenge, the reviewing court walks through the entire grocery store—the whole record—but only places the supportive competent evidence in its cart. At checkout, the court determines whether the cart contains sufficient competent evidence.

Sufficient competent evidence is "evidence which has probative force on the issues and from which the trier of facts can reasonably decide the case." Morris v. Glenridge Children's Center, Inc., 436 S.W.3d 732, 735 (Mo.App. E.D. 2014) (internal quotation and citation omitted). Sufficient competent evidence is a minimum threshold: "[t]he testimony of one witness, even if contradicted by the testimony of other witnesses, may be sufficient competent evidence to support an administrative decision." Id. "We will not reverse the Commission's decision if it reaches the right result even if it gave a wrong or insufficient reason for its ruling." Hedrick v. Big O Tires, 522 S.W.3d 919, 921-22 (Mo.App. S.D. 2017) (internal quotation and citation omitted).

Factual and Procedural History

We recite the facts of this matter in accord with our standard of review, supra.

In October 2009, Nichols was 55 years old, and worked for Belleview as a substitute teacher's aide and substitute cook. On October 29, 2009, Nichols was injured while working at Belleview when she fell down steps outside a modular classroom, hit the ground with the left side of her body, and rolled into the underpinning of the modular classroom, breaking the underpinning.

The next day, Belleview sent Nichols to the Mineral Area Regional Medical Center emergency room, where Nichols reported pain in her neck, left shoulder, left elbow,⁷ and left leg. In the next few weeks, Nichols also began experiencing pain in her left hip and back.

Belleview filed a Report of Injury describing Nichols' injuries as "contusion [s]" to multiple body parts, including her lower left leg.⁸ On February 8, 2010, Belleview fired Nichols, based on its opinion that Nichols could no longer perform her job.

Nichols filed a Claim for Compensation on May 13, 2010, describing injury to her back, left hip, left shoulder and left leg, and asserting a claim against the Fund. Nichols filed an Amended Claim for Compensation on January 21, 2011, adding injury to her left elbow, arm, wrist, hand and fingers.⁹

A hearing before an administrative law judge ("ALJ") was held on June 13, 2016. Nichols and Belleview presented expert medical testimony, reports, and medical records,¹⁰ regarding, in relevant part, whether Nichols' injuries were causally related to her work accident at Belleview, and the extent of Nichols' injuries as related to her potential disability rating. Nichols testified personally before the ALJ, indicating her lack of adverse symptoms before her work accident,¹¹ her many severe medical symptoms thereafter, and the major impact those symptoms had on her ability to work and perform activities in her personal life.

As to medical causation, the ALJ found Nichols' testimony credible; the ALJ also found credible Nichols' medical expert, Dr. Volarich, who indicated that Nichols' work accident was the prevailing factor in her back and neck injuries. The ALJ did not credit Belleview's medical expert, Dr. Chabot, because he "did not review all of the treatment records and the medical records," and because Dr. Volarich was "very persuasive and is more persuasive than the opinion of Dr. Chabot[.]"

As to the nature and extent of Nichols' disability, the ALJ found Nichols to be "very credible and persuasive."¹² Further, the ALJ indicated that on this issue, Nichols' experts, Dr. Volarich and Ms. Gonzalez, were more credible and persuasive than Belleview's experts, Dr. Paletta, Dr. Chabot, and Mr. England.¹³

The ALJ found that Nichols' work accident at Belleview was the prevailing factor in causing her injuries, that Nichols was permanently and totally disabled as a result of her work injuries alone, and awarded total disability benefits of $207.24 per week (as against Belleview), for the remainder of Nichols' life, or until she is restored to her regular work or its equivalent. The ALJ also awarded Nichols costs of future medical care for treatment of her work injuries (as against Belleview). Nichols' claim against the Fund was denied. Belleview appealed to the Commission.

The Commission issued its award on January 12, 2017, unanimously affirming and incorporating the award of the ALJ without modification. This appeal followed.

In four points on appeal, Belleview asserts:

I.

THE INDUSTRIAL COMMISSION ERRED IN FINDING THE ACCIDENT WAS THE PREVAILING FACTOR CAUSING EMPLOYEE'S CURRENT BACK CONDITION, AND ITS FINDING MUST BE REVERSED, FOR THE REASONS THAT:

A.

THE COMMISSION'S FINDING WAS WITHOUT SUPPORT IN AND CONTRARY TO THE OVERWHELMING WEIGHT OF THE COMPETENT AND SUBSTANTIAL EVIDENCE-THE FINDINGS OF EMPLOYEE'S TREATING PHYSICIANS, THE DIAGNOSTIC STUDIES, AND THE TESTIMONY OF DR. CHABOT-WHICH DEMONSTRATED THE ACCIDENT CAUSED A LUMBAR STRAIN, AND EMPLOYEE'S CURRENT BACK CONDITION WAS CAUSED BY THE NATURAL PROGRESSION OF THE PRE-EXISTING DEGENERATIVE DISC DISEASE IN HER LUMBAR SPINE.

B.

THE COMMISSION ERRED AS A MATTER OF LAW AND ACTED UNREASONABLY IN RELYING ON DR. VOLARICH'S TESTIMONY IN FINDING THE ACCIDENT WAS THE PREVAILING FACTOR CAUSING EMPLOYEE'S CURRENT BACK CONDITION. DR. VOLARICH'S OPINION THE ACCIDENT CAUSED LUMBAR LEFT HIP GIRDLE RADICULOPATHY WAS WITHOUT SUPPORT IN THE MEDICAL EVIDENCE AND BASED ON NOTHING MORE THAN SPECULATION AND CONJECTURE, AND THUS, DID NOT CONSTITUTE SUBSTANTIAL EVIDENCE, WHICH COULD SUPPORT THE COMMISSION'S CAUSATION FlNDlNGS.

C.

EMPLOYEE'S TESTIMONY DID NOT CONSTITUTE COMPETENT OR SUBSTANTIAL EVIDENCE WHICH COULD SUPPORT THE COMMISSION'S FINDING THE ACCIDENT WAS THE PREVAILING FACTOR CAUSING HER CURRENT BACK CONDITION, SINCE THE CAUSATION OF THAT CONDITION DID NOT FALL WITHIN THE COMMON KNOWLEDGE OR EXPERIENCE OF LAY UNDER-STANDING,

AND HAD TO BE PROVEN BY COMPETENT MEDICAL OPINION.

II.

THE INDUSTRIAL COMMISSION ERRED IN FINDING THE ACCIDENT WAS THE PREVAILING FACTOR CAUSING EMPLOYEE'S CURRENT NECK CONDITION, AND ITS FINDING MUST BE REVERSED, FOR THE REASONS THAT:

A.

THE COMMISSION'S FINDING WAS WITHOUT SUPPORT IN AND CONTRARY TO THE OVERWHELMING WEIGHT OF THE COMPETENT AND SUBSTANTIAL EVIDENCE-THE FINDINGS OF EMPLOYEE'S TREATING PHYSICIANS, THE DIAGNOSTIC STUDIES AND THE TESTIMONY OF DR. CHABOT-WHICH DEMONSTRATED THE ACCIDENT CAUSED A CERVICAL STRAIN, AND EMPLOYEE'S CURRENT NECK CONDITION WAS CAUSED BY THE NATURAL PROGRESSION OF THE PRE-EXISTING DEGENERATIVE DISEASE

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