In the
Missouri Court of Appeals
Western District
JEFFERSON CITY COUNTRY )
CLUB, )
) WD79405
Appellant, )
) OPINION FILED:
v. ) September 27, 2016
)
LYDIA PACE AND TREASURER OF )
THE STATE OF MISSOURI, )
CUSTODIAN OF THE SECOND )
INJURY FUND, )
)
Respondents.
Appeal from the Labor and Industrial Relations Commission
Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
and 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 benefits by the Division of Workers’ Compensation in
2
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;
3
(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 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
1
The July 2015 Decision found that Pace was entitled to TTD benefits from January 3, 2011. This finding
was modified by the Commission to find that Pace was entitled to TTD benefits from November 17, 2005 through
August 24, 2011.
4
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
2
All statutory references are to the Revised Statutes of Missouri 2000 as currently supplemented, unless
otherwise indicated.
5
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 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 4, 2002, although the doctors disagree on the exact diagnosis and the part that the
October 4, 2002 accident plays in the depression." The ALJ concluded that the depression
was caused by Pace's work injury and, thus, compensation for the depression and treatment
of the depression was warranted. The Commission, reviewing the ALJ's decision, found
that the ALJ did not apply the proper statutory test regarding causation. The Commission
6
found that the appropriate test, pursuant to section 287.020.2 (RSMo 2000),3 requires that
for an injury to be compensable it must be related to work, which means that work was "a
substantial factor in the cause of the resulting medical condition or disability."
The Commission then reviewed the evidence before the ALJ and adopted the ALJ's
express findings with regard to the persuasive force of the competing expert opinions on
the causation issue and adopted the ALJ's implied finding that Dr. Daniel was more
persuasive in his testimony regarding the cause of Pace's depression. The Commission
concluded that work was a substantial factor in causing her depression. The Commission
also noted that Employer, in arguing that Pace had not proven causation, did not present
facts or argument regarding why its expert should have been found to be more persuasive,
but only that its expert's opinion must be accepted to the exclusion of all others. The
Commission also noted that Employer repeatedly misstated the record in its arguments to
the Commission.
Employer first argues, in Point One on appeal, that the Commission used the wrong
legal standard for the causation required to permit compensation for Pace's depression by
assuming that proof of depressive symptoms alone constituted proof of causation.
Employer also argues in Points Two and Three on appeal that there was not substantial
evidence supporting the Commission's finding regarding causation.
3
Claimant's 2002 injury was governed by the law then in effect, which stated that "[a]n injury is
compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the
cause of the resulting medical condition or disability." Section 287.020.2 RSMo (2000) (emphasis added). Future
citations to this section will be to the RSMo (2000) version.
7
Point One - Causation Legal Standard
In Point One on appeal, Employer argues that the Commission used the wrong legal
standard when it found that Pace's depression was compensable. The claimant in a workers'
compensation case has the burden to prove all the essential elements of her claim, including
the causal connection between the injury and work. Angus v. Second Injury Fund, 328
S.W.3d 294, 299 (Mo. App. W.D. 2010).
Determinations with regard to causation and work relatedness are questions
of fact to be ruled upon by the Commission. Pursuant to the statute, "[a]n
injury is clearly work related if work was a substantial factor in the cause of
the resulting medical condition or disability." Section 287.020.2.
Nonetheless, an injury is not compensable merely because work was a
triggering or precipitating factor. Awards for injuries "triggered" or
"precipitated" by work are nonetheless proper if the employee shows the
work is a "substantial factor" in the cause of the injury. Thus, in determining
whether a given injury is compensable, a work related accident can be both
a triggering event and a substantial factor.
Id. (internal quotations and citations omitted).
Employer's Point One on appeal is perplexing as it claims the Commission erred in
finding that work was a substantial factor in Pace's injury because it "assumed proof of
depressive symptoms, alone, constituted proof of causation of that condition." Employer's
point has no merit as the Commission explicitly accepted as credible and persuasive the
expert medical testimony of Dr. Daniel and concluded from the evidence that work was a
substantial factor in causing Pace's depression. Dr. Daniel in his report and deposition
stated that, in his expert medical opinion as a psychiatrist, Pace suffers from depression
that was directly caused by the injuries she suffered while working for Employer. Dr.
8
Daniel stated in his report that the onset of Pace's depression "is proximally related to the
work injury on October 4, 2002 and subsequent chronic pain and unemployment" and that
"the cause of Ms. Pace's psychiatric disorder is the work injury on October 4[,] 2002;
therefore, the work-related injury is the prevailing factor." Although not explicitly stated,
the Commission reasonably interpreted Dr. Daniel's opinion that work was the "prevailing
factor" as satisfying the "substantial" factor requirement, the legal standard that applies
here, which was reasonable, given that satisfying the "prevailing factor" standard is more
difficult than meeting the "substantial factor" standard. See Leake v. City of Fulton, 316
S.W.3d 528, 531-32 (Mo. App. W.D. 2010) ("prevailing factor" standard is a higher
standard than the previous "substantial factor" standard).
Employer complains that the Commission engaged in no analysis regarding
causation. It is unclear to the Court what further analysis Employer believes was required.
"[T]he question of causation is one for medical testimony, without which a finding for
claimant would be based upon mere conjecture and speculation and not on substantial
evidence." Angus, 328 S.W.3d at 300 (quoting Elliott v. Kansas City, Mo., Sch. Dist., 71
S.W.3d 652, 658 (Mo. App. W.D. 2002)). The Commission considered the expert medical
opinions provided as to the causation issue and accepted as credible and persuasive
evidence that established work was a substantial factor in causing Pace's depression. This
is all the law requires.4 The Commission utilized the proper legal standard to determine
causation as to Pace's depression.
4
Employer's claim that the Commission's decision runs afoul of Wilhite v. Hurd is perplexing and without
merit. Disregarding that a different causation standard was in effect in 1967, the case holds that the mere existence
of a condition does not prove the condition was caused by work. 411 S.W.2d 72, 78 (Mo. 1967) (overruled on other
9
Point One is denied.
Points Two and Three - Depression Causation Supported by Substantial and
Competent Evidence
Employer's Points Two and Three on appeal both argue that the Commission erred
because its finding of causation between Pace's work-related injury and her depression is
not supported by substantial and competent evidence. In Point Two, Employer only argues
that its expert, Dr. Jarvis, provided sufficient and competent evidence to prove that Pace
does not have depression but rather has an "adjustment disorder." In Point Three, Employer
attacks the medical opinions of Dr. Daniel and Dr. Markway and argues, as a matter of law,
their opinions cannot constitute substantial and competent evidence as to causation. For
ease of analysis we will consider the points in reverse order.
It is a well-settled principle that the "Court defers to the Commission on issues
involving the credibility of witnesses and the weight to be given to their testimony." Dierks
v. Kraft Foods, 471 S.W.3d 726, 733 (Mo. App. W.D. 2015). "Determinations with regard
to causation and work-relatedness are questions of fact to be ruled upon by the
Commission, and the reviewing court may not substitute its judgment on the weight of the
evidence or on the credibility of witnesses for that of the Commission." Id. (quoting
Claspill v. Fed. Ex Freight East, Inc., 360 S.W.3d 894, 903 (Mo. App. S.D. 2012)).
Where the right to compensation depends upon which of two conflicting
medical theories should be accepted, the issue is peculiarly for the
Commission's determination. When the evidence before the Commission
would warrant either of two opposed findings, we are bound by the
grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)). Here, the Commission explicitly
accepted expert medical testimony that Pace's work injury was a substantial factor in causing her depression.
10
Commission's determination despite supportive evidence for the contrary
finding.
Id. (internal quotations and citations omitted).
Dr. Daniel testified, and the ALJ found credible and persuasive, that "the injury
[Pace] sustained at work on October 4th, 2002 [ . . . . ] is the prevailing factor leading to
subsequent development of her psychiatric disorder." He also testified that although a
number of other factors, including life events and other medical issues, likely contribute to
Pace's depression, her work injury was the prevailing cause of Pace's current depression.
In cross-examination, Dr. Daniel admitted that there were a few conditions suffered by
Pace unrelated to her work injury of which he was unaware when he made his diagnosis of
depression, including knee and back complaints following the workplace injury, but the
Commission found that this did not sufficiently undermine his opinion as to causation. A
report was also entered into evidence from Dr. Markway, who also conducted a
psychological evaluation and similarly concluded that Pace suffers from depression that
was triggered by her work injury. Dr. Markway, however, did not offer any opinion as to
whether the injury was a prevailing or substantial factor in causing Pace’s depression. As
explained in Point One, Employer’s expert, Dr. Jarvis, concluded that Pace’s depression
was not caused by her work-related injury but by the lengthy worker’s compensation and
litigation processes.
Where two experts provide medical opinions regarding causation, this Court's role
is not to second-guess the Commission, as issues of medical causation are issues
"peculiarly for the Commission's determination." Dierks, 471 S.W.3d at 733. Information
11
that Dr. Daniel did not have while examining Pace affects the weight that should be
afforded his opinion, but that determination is left to the Commission. See id. The
Commission found that Dr. Daniel's opinion remained persuasive. The ALJ and the
Commission clearly found Dr. Daniel's testimony persuasive that Pace's depression was
caused by the work-related injury. There is substantial and competent evidence in the
record to support that determination.
Point Three is denied.
In Point Two on appeal, Employer merely states the reasons why it believes its
expert, Dr. Jarvis, was more persuasive. Even where another expert's opinion would have
supported a different finding as to causation, we are bound by the Commission's
determination, which we have already decided was supported by substantial and competent
evidence. See id. That Dr. Jarvis came to a contrary conclusion regarding causation is
inconsequential.
Point Two is denied.
Points Four and Five - Future Medical Treatment for Neck, Right Shoulder, and
Depression
In Point Four on appeal, Employer argues the Commission erred in granting Pace
future medical care for her neck and right shoulder because the decision was contrary to
the overwhelming weight of the evidence as her physicians found that she had reached
MMI for her neck and shoulder injuries and did not require additional treatment or medical
care under section 287.140.1.
12
The following evidence was before the Commission relating to Pace's pain in
connection with her neck and shoulder. In June of 2004, Dr. Graven evaluated Pace
regarding her complaints of neck pain that radiated down into her right shoulder, arm and
hand. Dr. Graven performed a selective nerve root block that provided temporary relief
but excruciating pain returned in 12-24 hours. In September of 2004, Dr. Graven again
noted Pace’s continued pain and noted that Pace would continue her TTD status. After a
cervical fusion was performed, Dr. Graven noted that Pace had trapezial pain and
prescribed Pace Lidoderm patches and a Percocet prescription. The pain continued through
early 2005, at which time Pace was referred to Dr. Theodore Rummel ("Dr. Rummel") to
address a tear in her right rotator cuff. Dr. Rummel also noted in his first meeting with
Pace that she had a burning pain in her trapezius area and he recommended that she receive
pain management. Subsequent reports by Dr. Rummel address the healing of Pace's rotator
cuff but are silent regarding whether Pace had continued pain. Dr. Rummel testified that,
as of November of 2008, Pace's trapezius was a daily source of pain for her.
Dr. Volarich testified that after Pace had surgery on her shoulder and neck, Pace
continued to have significant pain that originated in her neck. In his report, dated July 20,
2012, Dr. Volarich found that to maintain her current state, Pace will require ongoing care
for her pain. He recommended that Pace receive future treatment at a pain clinic for pain
related to Pace's cervical spine and right shoulder girdle. This would include steroid
injections, nerve blocks and trigger point injections. Dr. Volarich also testified that it is
difficult to know whether Pace's symptoms are due to shoulder pathology alone or if they
come from the cervical spine. This is because Pace had a pathology in both areas.
13
Dr. Chabot, an orthopedic spine specialist who operated on Pace, testified that, as
of August 25, 2011, Pace had improved motion in her shoulder and a reduction in pain
complaints. Dr. Chabot believed Pace had reached MMI as of that date. Dr. Richard
Howard ("Dr. Howard"), specializing in hand and upper extremity microsurgery, submitted
an opinion letter, dated January of 2011, in which he stated that Pace had persistent
complaints after her rotator cuff and neck surgeries in 2008 and continued pain in her AC
joint.5 He noted that in 2011 Pace continued to have pain in the top of her shoulder, along
with numbness and tingling in her fingers, and a subcrominal injection from Dr. Chabot
had provided no relief. He also noted that Pace has pain in her trapezius. Dr. Howard
concluded that it was his opinion that Pace's symptoms were "more of a problem with neck
pain" and she was at MMI for her right shoulder.
The ALJ found, as adopted by the Commission, that Pace was entitled to future
medical treatment to treat her neck and right shoulder pain. As support, the ALJ cited Dr.
Volarich's testimony regarding recommended pain treatment that was consistent with the
treatments she had received from her treating physicians to alleviate the pain she still has
in her right shoulder and neck.
The Missouri Workers' Compensation Act includes an allowance for future medical
treatment for an injured worker pursuant to section 287.140.1, which provides in part:
In addition to all other compensation ..., the employee shall receive and the
employer shall provide such medical ... treatment, including nursing,
custodial, ambulance and medicines, as may reasonably be required after the
injury or disability, to cure and relieve from the effects of the injury.
5
The "AC" joint is the acromioclavicular joint, located in the top of the shoulder.
14
ABB Power T&D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. W.D. 2007); see also
Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 518 (Mo. App. W.D. 2011). It is not
necessary for a claimant to provide conclusive evidence as to what future medical treatment
will be needed; rather, the claimant must demonstrate a "reasonable probability" that future
medical treatment will be necessary due to her work-related injury. Kempker, 236 S.W.3d
at 52-53. "An employer is required to compensate for future medical care only if 'the
evidence establishes a reasonable probability that additional medical treatment is needed
and, to a reasonable degree of medical certainty, that the need arose from the work injury.'"
Id. at 53 (quoting Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 85 (Mo. App. S.D. 2006)).
We find substantial and competent evidence in the record to support the
Commission's finding that Pace sustained her burden of proof for future medical treatment
regarding her shoulder and neck. The record is clear that Pace had ongoing and persistent
pain resulting from her work-related injury. Pace continuously sought treatment for pain
related to both her neck and shoulder. Many doctors have evaluated Pace and there is
disagreement amongst them as to the exact cause of her pain. This is not surprising as there
was also testimony that sometimes it is difficult to determine the exact origin of pain in the
area of Pace's injury. Regardless of whether her pain originates in her shoulder or neck,
the fact remains that the evidence before the Commission supports the Commission's
conclusion that there is a reasonable probability that Pace will need ongoing treatment and
pain management related to her work-related injuries to her shoulder and neck, and she is
entitled to such.
15
In addition, Pace's entitlement to future medical benefits is not impacted by the fact
she had reached MMI with regard to either her shoulder or neck. "Future medical care
should not be denied simply because an employee may have achieved maximum medical
improvement." Greer v. SYSCO Food Servs., 475 S.W.3d 655, 673 (Mo. banc 2015).
"[T]he statute contemplates medical treatment that gives comfort or relief even though a
cure is beyond avail." Id. The Commission here found that there is a reasonable probability
that based on expert medical testimony that Pace will need future medical treatment for her
injuries. The statute provides for such. See id. (future medical treatment for pain provided
by section 247.140.1 even if claimant had reached MMI with respect to his injury).
Point Four is denied.
In Point Five on appeal, Employer similarly argues that the Commission erred in
finding that Pace is entitled to future medical care for her depression because that finding
is not supported by substantial evidence.
In support of its argument, Employer again recites its preferred diagnosis from Dr.
Jarvis, which concluded that Pace only suffers from an adjustment disorder with a
depressive mood, and, in a conclusory fashion, opines that Dr. Daniel's testimony that Pace
does indeed suffer from depression caused by her work-related injury is not substantial
evidence. We have already found in points one through three above that Dr. Daniel's
testimony constituted substantial and competent evidence that Pace suffers from depression
and that her work-related injury was a substantial factor in causing that depression. Dr.
Daniel testified that Pace's depression, caused by her work injury, is ongoing and, he
recommended that Pace receive medication management and psychotherapy for her
16
depression. This is sufficient evidence to support the Commission's finding that there is a
reasonable probability that Pace will need future treatment for her depression. We need
not repeat again the citation to the various authorities previously set forth for this
proposition.
Point Five is denied.
Point Six - Temporary Total Disability - Stipulation
In Point Six on appeal, Employer argues the Commission erred "as a matter of law
in interpreting the parties' stipulation that, for purposes of calculating benefits" Pace
reached MMI on August 25, 2011 "as an admission [that Pace] remained in need of
treatment for her work injuries" and was, thus, totally disabled from November 17, 2005
through August 24, 2011 for the purposes of section 278.170.
"Temporary disability awards are intended to cover a healing period." Greer, 475
S.W.3d at 667 (quoting Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. E.D.
1985)). "[TTD] benefits 'should be awarded only for the period before the employee can
return to work.'" Id. (quoting Cooper v. Med. Ctr. of Independence, 955 S.W.2d 570, 575
(Mo. App. W.D. 1997)). "A temporary award is not 'intended to encompass disability after
the condition has reached the point where further progress is not expected.'" Id. (quoting
Williams, 694 S.W.2d at 489). "This is reflected in the language that a temporary total
disability lasts only 'during the continuance of such disability.'" Id. (quoting Cardwell v.
Treasurer of the State of Mo., 249 S.W.3d 902, 909 (Mo. App. E.D. 2008)).
It is not disputed by Employer that the parties did stipulate before the ALJ that Pace
reached MMI on August 25, 2011. Employer, however, mischaracterizes the
17
Commission's view of that stipulation. The Commission's decision explicitly recognizes
that the parties disputed whether Pace was temporarily and totally disabled from November
17, 2005 to August 24, 2011. In granting Pace TTD for the whole of this time period, the
Commission credited Pace's testimony that she was not able to work after Dr. Rummel
released her from treatment in November of 2005. See Patterson v. Eng'g Evaluations
Inspections, Inc., 913 S.W.2d 344, 347 (Mo. App. E.D. 1995) (a layman is capable of
forming an opinion as to whether she is capable of working and is sufficient evidence upon
which to base an award of TTD). The Commission supports this finding with citation to
additional evidence from Dr. Chabot that Pace came to him in 2011 with pain complaints
identical to her complaints when she saw him in October 2009. The Commission also cites
as additional support the "voluminous evidence of additional evaluation and treatment
[Pace] sought and required after November 30, 2010, as a result of the effects of her work
injury."
The Commission's only reference to the parties' stipulation is in a footnote in its
decision and states the following: "[t]he parties' stipulation that employee did not reach
MMI until August 25, 2011, strikes us as an implicit acknowledgment that Dr. Rummel's
release in November 2005 was premature, and that employee remained in need of
additional and significant medical care as a result of the work injury." Contrary to
Employer's argument, the Commission did not treat the stipulation as conclusive proof that
Pace remained in need of care but only as additional evidence bolstering the Commission's
independent finding that Pace qualified for TTD during the disputed time period.
Point Six is denied.
18
Point Seven - Temporary Total Disability - Engaged in Rehabilitative Process
In Point Seven on appeal, Employer argues the Commission erred in finding that
Pace was engaged in the "rehabilitative process" between November 17, 2005 and January
2, 2011 because that finding is contrary to the overwhelming weight of the evidence.
Pursuant to section 287.149, TTD or partial disability benefits are to be paid
"throughout the rehabilitative process." Whether a treatment is "part of the rehabilitative
process is a fact question for the commission." Greer, 475 S.W.3d at 671. The
Commission found that Pace persuasively testified that she continually sought help for her
condition (i.e. pain related to her work-related injuries) after she was released by Dr.
Rummel on November 17, 2005. The Commission found that the evidence supported
Pace's testimony that the pain related to her work injury "remained consistent and unabated
throughout that period." The Commission also found that, during this time, Pace had
"ongoing and severely limiting complaints and symptoms referable to the work injury
which affected her cervical spine, dominant right arm, and body as a whole in the form of
depression."
The evidence supports the Commission's decision that from Pace's release from Dr.
Rummel in November of 2005 to January 2, 2011, Pace was consistently engaged in the
rehabilitative process. As recognized by the Commission, the parties' stipulation that Pace
did not reach MMI for her work related injuries until August 25, 2011 is some evidence
that Pace's release from care in 2005 was premature. Although not conclusive, it does
support Pace's testimony, found credible by the Commission, that during the entire time
19
period in dispute she was suffering from pain related to her work injury such that she could
not work.
In Greer, the Missouri Supreme Court addressed the meaning of "rehabilitative
process" and its relation to MMI. 475 S.W.3d at 670. In that case, the employee suffered
from tarsal tunnel syndrome related to a work-related injury starting in February 2007. Id.
His treating doctor found that the employee had reached MMI regarding that injury in April
of 2007, and the employee then returned to work. Id. The employee, however, continued
to experience symptoms that impacted his ability to work. Id. The employee then went to
additional doctors and sought additional treatment. Id. The Supreme Court found that all
of these actions, including actions taken after his doctor had found his injury had reached
MMI, were "intended to restore Greer to a condition of health or normal activity by a
process of medical rehabilitation." Id. In addition, whether the treatment is successful it
is "immaterial" to the determination of whether a treatment is part of the rehabilitative
process. Id. at 670-71. As explained by Greer,
[i]t is plausible, and likely probable, that the maximum medical improvement
date and the end of the rehabilitative process will coincide, thus, marking the
end of the period when TTD benefits can be awarded. However, when the
commission is presented with evidence, as here, that a claimant has reached
maximum medical improvement yet seeks additional treatment beyond that
date for the work-related injury in an attempt to restore himself or herself to
a condition of health or normal activity by a process of medical rehabilitation,
the commission must make a factual determination as to whether the
additional treatment was part of the rehabilitative process. If the commission
determines the additional treatment was part of the claimant's rehabilitative
process, then he or she is entitled to TTD benefits pursuant to section
287.149.1 until the rehabilitative process is complete. Once the rehabilitation
process ends, the commission then must make a determination regarding the
permanency of a claimant's injuries.
20
Id. at 668-69.
Like Greer, Pace continued to seek treatment for pain related to her work-related
injury despite the fact that multiple doctors had found she had reached MMI. As explained
above, Pace's medical records support her claim that she continued to experience pain
throughout the disputed time period and sought treatment for that pain.6 The Commission
made a factual determination that the treatment sought by Pace was an attempt by her to
restore herself to health or normal activity and, thus, was part of the rehabilitative process
associated with her work-related injury. This finding by the Commission was not against
the weight of the evidence, as the evidence marshalled by Employer does not take into
account Pace's continuous seeking of treatment for pain and her own testimony, found
credible by the Commission, that she was not able to work as a result of that pain.
Point Seven is denied.
Point Eight - Modification of the Temporary Award Regarding Temporary Total
Disability Benefits
In Point Eight on appeal, Employer argues the Commission erred in modifying the
ALJ's finding in the temporary award that Pace was not entitled to TTD following
November 17, 2005, because Pace failed to present additional significant evidence on that
issue at the final hearing that was not before the ALJ at the time she issued the temporary
award.
6
Employer's argument completely neglects that, in addition to shoulder and neck problems and pain
associated therewith, the evidence showed the Pace suffered from depression that arose out of her work injury
throughout this time period and was seeking treatment for that depression.
21
In support of this argument, Employer relies on Jennings v. Station Casino St.
Charles, 196 S.W.3d 552 (Mo. App. E.D. 2006). In Jennings, the Court explained that
even though the law clearly contemplates that an ALJ may render a decision at a final
hearing which differs from the temporary award, in order to do so the final award must find
there was "additional significant evidence" not before the ALJ at the temporary award that
was presented for consideration in the final award. Id. at 558.
This argument was raised before the Commission, and the Commission found that
there was, in fact, additional significant evidence presented at the final award hearing to
support the modification of the temporary award. The Commission cited "voluminous
evidence of additional evaluation and treatment [Pace] sought and required after November
30, 2010," the date of the temporary award. This includes a record from Dr. Chabot that
indicated that, as of January 3, 2011, Pace was presenting with the same complaints and
symptoms that she had in October of 2009. The Commission also cites as additional
significant evidence Pace's testimony in the final award hearing regarding her inability to
work throughout the disputed time period.
Employer recognizes the "additional significant evidence" cited by the Commission,
but argues that Pace's "subjective complaints, alone, cannot support the TTD award."
Employer cites two statutes to support this bold assertion. A review of the statutes,
however, reveal that they have nothing to say at all about whether a subjective experience
of pain can support a finding of TTD.7 Employer has cited nothing that supports its
7
Employer cites section 287.020.6, which is the definition of total disability as the "inability to return to
any employment and not merely mean inability to return to the employment in which the employee was engaged at
the time of the accident." Employer also cites section 287.070 which sets out the method of payment for TTD.
22
argument that subsequent visits to a doctor regarding pain, subsequent reports of those
visits, and additional testimony elicited from a claimant, including multiple failed attempts
to work in even part-time positions, are insufficient to meet the "additional significant
evidence standard." We agree with the Commission that the subsequent evidence cited by
the Commission supports its modification of the temporary award.
Point Eight is denied.
Points Nine and Ten - Finding of Permanent and Total Disability
In Point Nine on appeal, Employer argues that the Commission erred in finding that
Employee was PTD because its finding is not supported by substantial evidence. In Point
Ten, Employer argues that the Commission failed to use the appropriate statutory standards
governing PTD under section 287.020.6. As these points are interrelated, we will consider
them together.
Section 287.020.6 defines "total disability" as the "inability to return
to any employment and not merely [the] inability to return to the employment
in which the employee was engaged at the time of the accident." The test for
permanent total disability is the worker's ability to compete in the open labor
market because it measures the worker's potential for returning to
employment. The ability to compete in the open labor market hinges on
whether, in the ordinary course of business, any employer would be
reasonably expected to hire the individual given his or her present physical
condition. Employability is a matter within the [c]ommission's expertise.
[Employee] bears the burden of proving he is entitled to PTD benefits
Greer, 475 S.W.3d at 664-65 (internal citations and quotation marks omitted).
The Commission found that Pace sustained her burden of proof that she is PTD as
the result of her neck and right shoulder injuries coupled with her depressive symptoms. It
23
was stipulated that Pace had reached MMI as of August 25, 2011, which is the date at
which PTD must be established. See Cardwell, 249 S.W.3d at 908-10.
Dr. Volarich testified regarding his medical opinion as to Pace's ability to be
employed on the open labor market. Dr. Volarich testified that, in his opinion, Pace has a
fifty percent permanent partial disability of the body as a whole rated at the cervical spine.
This rating took into account all of her neck pain syndrome, lost motion, and ongoing right
upper extremity paresthesias with radicular symptoms. He also found a forty percent
permanent partial disability of the right upper extremity at the shoulder due to impingement
and a rotator cuff tear. In addition, Dr. Volarich found that Pace suffers from depression.
Dr. Volarich testified that Pace
cannot be reasonably expected to perform on an ongoing basis eight hours a
day, five days a week throughout the work year. It was also my opinion that
she was unable to continue in her line of employment that she last held as a
waitress for the Jefferson City Country Club nor could she be expected to be
[sic] to work on a full-time basis in a similar job. After review of additional
medical records and my re-examination on July 20, 2012, it was my opinion
that Ms. Pace was permanently and totally disabled as a direct result of the
work related injury of 10/4/02 standing alone.
In addition, Dr. Daniel, who conducted a psychiatric evaluation of Pace, concluded as well
that "due to the combined impact of the psychiatric disorders and physical conditions, Ms.
Pace is unable to compete in the open labor market."
The Commission also found persuasive the testimony of Gary Weimholt ("Mr.
Weimholt"), a vocational expert, who relied primarily on the findings of Dr. Volarich and
Dr. Daniel in reaching his opinions. Mr. Weimholt issued an initial report regarding Pace's
vocational disability in May of 2008 and issued a supplemental report in 2013. Mr.
24
Weimholt testified that Pace would not be employable in the open labor market due to her
work injury related to her cervical spine and right shoulder. The Commission found that
Pace's work restrictions, lack of transferable work skills, and inability to engage in regular
sustained activity combined to establish that she is unemployable in the open labor market.
"Under section 287.020, the term 'total disability' is defined as the ‘inability to return
to any employment and not merely ... inability to return to the employment in which the
employee was engaged at the time of the accident." Scott v. Treasurer of State-Custodian
of Second Injury Fund, 417 S.W.3d 381, 386 (Mo. App. W.D. 2014). "Any employment"
means any "reasonable or normal employment or occupation." Id. at 387. "'Total
disability' does not require the employee to be completely inactive or inert, rather, it means
the inability to return to any reasonable or normal employment." Id. Further, the question
of whether a claimant is totally and permanently disabled is "not exclusively a medical
question" and the Commission "need not rely exclusively on the testimony of medical
experts; rather, it may consider all the evidence and the reasonable inferences drawn from
that evidence." Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 802 (Mo. App. W.D.
2011). The Commission may even rely on testimony from the claimant herself. See Pavia
v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo. App. S.D. 2003). "The testimony of
... lay witnesses as to facts within the realm of lay understanding can constitute substantial
evidence of the nature, cause, and extent of the disability, especially when taken in
connection with, or where supported by, some medical evidence." Id.
"The Commission is not bound by the expert's exact percentages and is free to find
a disability rating higher or lower than that expressed in medical testimony. The extent
25
and percentage of disability is a finding of fact within the special province of the Industrial
Commission." Lewis, 356 S.W.3d at 802 (quoting Pavia, 118 S.W.3d at 234) (internal
citations omitted); see also Greer, 475 S.W.3d at 665 ("Employability is a matter within
the [c]ommission's expertise….")
Employer argues that the Commission's finding that Pace was permanently and
totally disabled is not supported by substantial evidence because the vocational expert who
testified for Pace, Mr. Weimholt, formed an opinion without seeing all of Pace's medical
records and without reviewing the 2010 hearing transcript. In his deposition, Mr.
Weimholt admitted that he relied upon the diagnoses and opinions of Dr. Volarich and Dr.
Daniel and did not review the reports from any other doctors who had seen Pace. Assuming
that Mr. Weimholt made a decision without all the pertinent information and that this
makes his testimony not credible, which is not necessarily the case, Employer ignores other
substantial evidence before the Commission. In addition to the reports and deposition
testimony of Drs. Volarich and Daniel, both of whom concluded that that they do not
believe Pace is employable in an open and competitive labor market, the Commission also
credited Pace's testimony to the same effect.
It is undisputed that the experts hired by Employer and medical experts relied upon
by them concluded differently. This, however, does not mean that the Commission's
decision is not supported by competent and substantial evidence. "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
26
contrary finding.'" Greer, 475 S.W.3d at 665 (quoting Hornbeck v. Spectra Painting, Inc.,
370 S.W.3d 624, 629 (Mo. banc 2012)). Findings as to the extent and percentage of
disability are findings of fact within the special province of the Commission and where, as
we have here, the Commission's decision is supported by the credible testimony of the
claimant herself and supported by medical evidence from two medical experts, also found
credible by the Commission, this Court must and does defer to the Commission. See Lewis,
356 S.W.3d at 802; see also Greer, 475 S.W.3d at 665.
Point Nine is denied.
Employer's argument in Point Ten on appeal that the Commission failed to utilize
the appropriate statutory standards governing permanent and total disability is unfounded.
Employer complains that the Commission relied on the fact that Pace underwent additional
neck surgery and had ongoing, non-operable, subjective right shoulder complaints and
psychiatric symptoms to find that she was PTD. This is true in part. As explained above,
the Commission found that Pace is disabled "as the result of her neck and right shoulder
injuries coupled with her depressive symptoms." The Commission also noted that, since
2010, Pace has even less range of motion in her neck and continued symptoms, including
pain, for which no physician has recommended additional surgical intervention. A
reasonable inference from this finding is that the pain will continue and will remain an
obstacle to employment.
Dr. Volarich, Dr. Daniel, and Pace herself testified that, as a result of her work
injury, she is unable to participate and find work in the open and competitive labor market.
The Commission explicitly found that "Ms. Pace's restrictions, lack of transferable work
27
skills, and inability to engage in regular sustained activity combined to establish that Ms.
Pace is unemployable in the open labor market." The Commission applied the appropriate
legal standard as it answered the question whether, in the ordinary course of business, any
employer would reasonably be expected to hire the worker in her physical condition.
Lewis, 356 S.W.3d at 800; see also Greer, 475 S.W.3d at 664-65. The Commission
determined that the answer is no and that determination is fully supported by the record.
Point Ten is denied.
Point Eleven - Second Injury Fund Liability
In Point Eleven on appeal, Employer argues the Commission erred in holding
Employer liable for PTD benefits because the Second Injury Fund (the "Fund") is liable,
in that Pace's PTD arose from all her injuries and conditions, both work and non-work
related.
The Fund was created "to encourage the employment of individuals who are already
disabled from a preexisting injury, regardless of the type or cause of that injury." Treasurer
of State–Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013).
The Fund accomplishes this objective by ensuring that an employer will only be
responsible for a disability that results from an injury attributable to that employer, and
"[a]ny disability attributable to the combination of the work injury with preexisting
disabilities is compensated, if at all, by the fund." Id.
The Commission found there was no Fund liability because Pace did not suffer from
a preexisting disability prior to her October 4, 2002 work injury. This conclusion is
supported by Dr. Volarich who reported that, prior to her work injury, Pace's only
28
preexisting diagnosis was for a minor cervical strain, which was resolved and
asymptomatic, and that she had no other preexisting disability. Dr. Daniel found that, prior
to her work injury, Pace did not have a preexisting psychiatric disorder.
Employer does not even attempt to argue that Pace suffered from a preexisting
disability but argues only that her PTD is the result of her work-related injuries combined
with her back and knee conditions. This is insufficient to create Fund liability. As there is
no evidence in the record to support that Pace had a preexisting disability at the time she
was injured, the Commission did not err in finding the Fund was not liable.
Point Eleven is denied.
Conclusion
The Final Award of the Commission is affirmed.
__________________________________
Gary D. Witt, Judge
All concur
29