Rasa v. Treasurer of State–Custodian of the 2nd Injury Fund
| Decision Date | 17 November 2015 |
| Docket Number | WD 78562 |
| Parties | Ruby Rasa, Appellant, v. Treasurer of the State of Missouri–Custodian of the Second Injury Fund, Respondent. |
| Court | Missouri Court of Appeals |
David Conrad Byerley, Counsel for Appellant.
Erin Courtney Smith, Counsel for Respondent.
Before Division One: Anthony Rex Gabbert, P.J., Victor C. Howard, and Cynthia Martin, JJ.
Ruby Rasa appeals an award of the Labor and Industrial Relations Commission ("the Commission") denying her claim for permanent total disability benefits from the Second Injury Fund ("SIF"). We affirm the Commission's award.
Appellant Rasa previously worked for Higginsville Habilitation Center ("HHC"). Her duties involved assisting HHC patients with everyday movements and tasks while they completed their physical rehabilitation programs. In June 2008, Rasa suffered from a partially disabling work-related injury that she claimed combined with a variety of severe preexisting medical conditions to create a permanent total disability.
The majority of Rasa's preexisting conditions relate to a motor vehicle accident that occurred in 1988. In support of her current claim against SIF, Rasa testified that this accident caused her to develop chronic neck pain, mid-back pain, and headaches for which she was treated by a chiropractor on a regular basis. She testified that these symptoms were chronic and caused a hindrance or obstacle to her employment in that they caused her to occasionally lose focus at work, miss work for chiropractic treatments, ask other employees for help completing job tasks, and to change her work schedule from five days to three days in order to give her body more time to rest and recover between shifts.
Rasa also testified that she suffered from a variety of other pre–2008 conditions including incontinence, diabetes
, and diabetes-associated peripheral neuropathy. She testified that these conditions were a hindrance or obstacle to her employment in that they required her to take unscheduled breaks, and also caused her to suffer from fatigue and pain in her feet attributable to her diabetes. Rasa asserted that the combination of these symptoms caused her to have a 5% permanent partial disability to her body as a whole in the years between 1988 and 2008.
On June 6, 2008, Rasa was assisting a patient in the bathroom in the course and scope of her employment with HHC when the patient slipped and grabbed her, causing Rasa to strain her lower back and twist her right knee. Upon prompt notification of the injury, HHC sent Rasa to the emergency room. While there, emergency personnel recorded Rasa's complaints of lower back pain radiating to her right lower extremity, and an MRI revealed a tear to the medial meniscus
of her right knee.
Rasa subsequently underwent surgery on her right knee and underwent physical therapy for the injury until October 16, 2008. At that time, her surgeon, Dr. Reardon, recommended the use of a hinged knee brace and over-the-counter medications to manage her remaining knee pain.
In 2009, Rasa saw another doctor for lingering lower back pain. A May 2009 MRI revealed multilevel degenerative disc and facet disease in her low back and cervical region. Rasa then received epidural injections
in her lower back that improved her lower back complaints.
Rasa also saw a neurologist, Dr. Applebaum, regarding her pain from the June 2008 injury and he placed Rasa on a 20–pound lifting restriction. In 2010, he noted that she suffered from neck and lower back pain, headaches, paresthesia of the left leg, weakness, general overall fatigue, difficulty climbing stairs, occasional incontinence, insomnia, and moodiness. Applebaum opined that these symptoms and complaints were not related to Rasa's prior 1988 motor vehicle accident, but were instead caused only by the June 2008 work accident. In 2011, Dr. Applebaum found that Rasa had reached maximum medical improvement and placed her on a permanent 20–pound lifting restriction. Applebaum found that she had sustained a 10% permanent partial disability to the body as a whole as a result of the June 2008 accident, but did not find that she had a pre-existing disability.
Rasa eventually filed a claim against SIF for permanent total disability benefits as a result of her combined preexisting conditions and the primary injury. At the initial hearing with the ALJ, Rasa presented the testimony of Dr. Stuckmeyer, her medical expert. Stuckmeyer found that Rasa sustained a 25% permanent partial disability to the body as a whole as a result of the June 2008 accident, and he assessed her with a 5% pre-existing disability due to the 1988 car accident symptoms. He opined that Rasa was permanently and totally disabled based on the synergistic effect of the pre-existing disability combined with the effects of the primary June 2008 injury.
The ALJ found that Rasa had sustained a compensable work-related accident in June 2008 that resulted in a 17.5% permanent partial disability to the right knee and a 19.75% permanent partial disability to the body as a whole. However, the ALJ found that Rasa failed to provide sufficient evidence that she suffered from a severe pre-existing disability of such seriousness to constituted a hindrance or obstacle to her employment. The ALJ noted that both Dr. Applebaum and Dr. Reardon had found her past medical history and symptoms to be insignificant, and also discredited the testimony of Rasa and Dr. Stuckmeyer as being inconsistent. The ALJ further discredited the opinions of Rasa's vocational experts because they relied on incorrect information and were internally inconsistent For these reasons, the ALJ ultimately concluded that Rasa had not sufficiently proven that she suffered from a severe pre-existing condition that would entitle her to permanent total disability benefits from SIF.
Rasa then appealed to the Commission, which ultimately affirmed the ALJ's award. Although the Commission disagreed with the ALJ's findings as to Rasa's own testimony, it adopted the ALJ's findings regarding Stuckmeyer's testimony and that of Rasa's vocational experts. Because Rasa's testimony regarding her pre-existing conditions was therefore not supported by credible medical evidence, and because her other treating physicians had found her past symptoms insignificant, the Commission adopted the ALJ's award denying Rasa benefits from SIF.
This appeal follows.
Upon review of the Commission's decision in a workers' compensation case, we may modify, reverse, remand for rehearing, or set aside the Commission's decision only upon any of the following reasons and no other:
§ 287.495.1, RSMo Supp. 2014. Thus, to determine the suitability of an award made by the Commission, we must "examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award...." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222–23 (Mo. banc 2003).
We may not affirm an award made by the Commission if, considering the whole record, it is contrary to the overwhelming weight of the evidence. Id. Conversely, we will affirm the Commission's decision if we determine that the Commission "could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it." Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (internal citation omitted).
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." Poarch v. Treas. of State Custodian of Missouri–Custodian of Second Injury Fund, 365 S.W.3d 638, 642 (Mo. App. W.D. 2012) (internal citation omitted). Where a Commission's decision is based on its interpretation and application of the law, review the Commission's conclusions of law and its decision de novo. Riley v. City of Liberty, 404 S.W.3d 434, 439 (Mo. App. W.D. 2013). However, we defer to the Commission's factual findings on issues such as the credibility of witnesses and the weight given to their testimony. Poarch, 365 S.W.3d at 642. "This includes the Commission's evaluation of expert medical testimony." Pruett v. Fed. Mogul Corp., 365 S.W.3d 296, 304 (Mo. App. S.D. 2012) (internal quotation omitted). "The Commission, as the finder of fact, is free to believe or disbelieve any evidence." Molder v. Missouri State Treas., 342 S.W.3d 406, 409 (Mo. App. W.D. 2011) (internal quotation omitted). Thus, when the evidence before the Commission "would warrant either of two opposed findings, [we are] bound by the [Commission's] determination, and it is irrelevant that there is supportive evidence for the contrary finding." Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (internal citation omitted) (internal quotation omitted).
In her sole point on appeal, Rasa contends that the Commission erred in denying her permanent total disability benefits because she presented sufficient competent evidence to support an award in her favor. Rasa argues that her own credible testimony, plus the uncontroverted testimony of her medical expert, Dr. Stuckmeyer, was sufficient to prove that she had a permanent total disability caused by a combination of severe pre-existing conditions and her primary injury. She further contends that in finding her medical expert's testimony regarding the severity of her pre-existing conditions to be not credible, the Commission impermissibly substituted its own lay opinion as to the cause of her overall permanent total disability for that of the medical expert. We disagree.
Pursuant to Section 287.808, it is the employee who bears the burden of proving that ...
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