DONALD PAYNE, ) ) Claimant/Appellant, ) ) vs. ) No. SD32541 ) Filed: January 14, 2014 ) TREASURER OF THE STATE OF MISSOURI, ) CUSTODIAN OF SECOND INJURY FUND, ) ) Respondent. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED.
Donald Payne (“Payne”) appeals from a final award of the Labor and Industrial Relations
Commission (“Commission”) in a workers’ compensation claim involving the Second Injury
Fund (“SIF”). We affirm the Commission’s award.
Factual and Procedural Background
Payne was employed by J.B. Hunt Transport, Inc. (“Employer”), out of Lowell,
Arkansas, as an over-the-road truck driver from approximately September 2004 until March 5,
2005. On December 24, 2004, Payne started a trip and fell on ice at a truck stop. He stepped
over a curb and as he did so, he slipped and lost his balance falling directly upon his back,
landing mainly upon his shoulder blades. Payne tried to bend his neck upward, which meant that
his shoulder blades took the brunt of the fall. Payne did not lose consciousness and was on the
ground “[j]ust momentarily.” His wife, who was riding with him, witnessed the fall. He arose
with some assistance from his wife, walked back to his truck, and took a couple of Tylenol
because he did not want to go inside the truck stop after having fallen. Instead he drove to
Conway, Arkansas, where he “dropped a load.” He was just feeling sore at that time.
On December 26, 2004, Payne called his dispatcher and informed him what had
happened. He told the dispatcher the “biggest thing that was hurt was my pride.” Payne initially
thought he did not injure himself, but the discomfort in his shoulders continued to worsen. The
pain hurt upon movement, especially around Payne’s chest and up both sides of his heart. The
muscles would pull causing chest pains and Payne could not tell whether the discomfort was
from his shoulders or heart. Payne had a pre-existing heart condition.
Sometime in March 2005, Payne told Employer that he “couldn’t put it off no more that I
needed to get it checked out.” Employer referred Payne to Tallgrass Immediate Care in Topeka,
Kansas, for medical treatment. On March 15, 2005, x-rays were done to both shoulders, which
were “normal.” Payne was diagnosed with “bilateral rotator cuff tendonitis” based upon positive
impingement signs in both shoulders. Payne reported a decreased range of motion since his fall
and it was recommended he start physical therapy. Payne was released to modified duty subject
to restrictions of not lifting over twenty pounds, no reaching above shoulder level, or lifting
above ankle level. It was anticipated that the duration of treatment for Payne would be two to
four weeks.
2 Payne then moved to Aurora, Missouri, where he established care with Dr. Herman
Damek (“Dr. Damek”) upon the referral of Employer. Payne underwent physical therapy in
Aurora from April 25, 2005, through May 18, 2005, which enabled him to regain range of
movement, but it “did not increase the strength or do anything for the pain.” Payne attended ten
out of twelve sessions and reported pain, “grinding,” and “popping” in his left shoulder, and
increased soreness.
On May 15, 2006, at the request of Payne’s attorney, an independent medical evaluation
of Payne was conducted by Dr. Shane Bennoch (“Dr. Bennoch”). After review of Payne’s
medical records and a physical examination, Dr. Bennoch diagnosed Payne with an injury to his
upper back and shoulders as a result of a “slip and fall,” and “[b]ilateral rotator cuff injuries with
weakness on abduction bilaterally.” Dr. Bennoch opined that Payne’s fall on December 24,
2004, was the “prevailing factor in causing the bilateral injuries of both shoulders and the
resulting disabilities.” Dr. Bennoch found Payne had permanent partial impairment of both
shoulders; however, he was unable to give a specific impairment rating at that time as it was his
opinion Payne required further diagnostic testing. Dr. Bennoch placed restrictions on Payne of
occasional lifting and/or carrying of not more than 20 pounds, no frequent lifting of more than
ten pounds, and limit pulling to 30 pounds. As for the reason for these restrictions, Dr. Bennoch
cited Payne’s “[b]ilateral rotator cuff injuries.”
As to Payne’s pre-existing conditions, Dr. Bennoch did rate Payne at 30% permanent
partial impairment to the body as a whole as to his cardiovascular system due to his myocardial
infarction and stent placement; 5% permanent partial impairment to the body as a whole due to
hypertension; and 10% permanent partial impairment to the body as a whole due to his diabetes.
3 Because of the combination effect of Payne’s impairments, Dr. Bennoch indicated a loading
factor should be added.
On March 7, 2008, Payne filed a “Claim for Compensation” and included a SIF claim for
pre-existing disability of “[c]ardiovascular system/myocardial infarction resulting stent
placement, diabetes” occurring approximately 1997 resulting in “[a]pproximately 35-45% to the
body as a whole.”
On or about December 10, 2009, Payne settled his workers’ compensation claim with
Employer for $18,000, representing 12.5% permanent partial disability to the body as a whole,
and received an additional $3, 000 for future medical expense.
In March 2010, Payne saw Dr. Justin Ogden (“Dr. Ogden”), an orthopedic surgeon, on
the referral of Dr. Damek. Payne saw Dr. Ogden in March 2010. Dr. Ogden diagnosed Payne
with chronic bilateral shoulder pain and noted Payne had not improved with six weeks of
physical therapy and recommended MRI scans of both shoulders. The MRI scan to the left
shoulder indicated a high-grade tearing of the distal supraspinatus tendon with a complete
pinhole, fluid extending into the subacromial and subdeltoid bursa, and severe degenerative
changes at the AC joint. The MRI of the right shoulder was limited due to “significant motion
artifact.” However, there was a 1.8 cm. complete supraspinatus tendon tear, and a partial tear of
the infraspinatus, which appeared to involve about 50% of the tendon thickness along the
articular surface. There was also fluid within the subacromial and subdeltoid bursa and severe
degenerative changes at the AC joint.
In April 2010, Dr. Ogden reviewed the MRIs with Payne and diagnosed Payne with a
“full-thickness rotator cuff tear on the right” and a “small pinhole full-thickness rotator cuff tear
on the left.” Dr. Ogden discussed treatment options with Payne, including additional physical
4 therapy, injections, or surgical repair. Dr. Ogden stated that the pain was not typical for rotator
cuff tears and recommended proceeding with injections both for therapeutic and diagnostic
purposes—injections were performed.
In May 2010,1 Dr. Bennoch performed a second independent medical evaluation for
Payne. Dr. Bennoch’s diagnoses for Payne were: (1) traumatic injury to both shoulders;
(2) right rotator cuff tear; and (3) left rotator cuff tear. Dr. Bennoch opined Payne had reached
maximum medical improvement to both shoulders, unless further surgery was contemplated. Dr.
Bennoch assigned an impairment rating for Payne of 40% permanent partial impairment to the
right upper extremity at the shoulder due to rotator cuff tear, and 40% permanent partial
impairment to the left upper extremity at the shoulder due to rotator cuff tear. Dr. Bennoch
indicated these ratings took into account that up until one month prior to this exam, no treatment
or testing was done. Dr. Bennoch’s prior ratings to Payne’s pre-existing conditions remained
“[u]nchanged from the Independent Medical Evaluation report on May 15, 2006.” Ultimately,
Dr. Bennoch found Payne to be “permanently and totally disabled” unless he had surgery, and
that Payne’s injuries were directly related to his December 24, 2004 fall. Dr. Bennoch also
recommended that Payne be seen by an orthopedic surgeon specializing in shoulder injuries,
particularly chronic shoulder injuries.
Dr. Bennoch placed more stringent restrictions on Payne beyond his 2006 restrictions,
including no lifting more than 10 pounds, no frequent lifting or carrying, and no pushing or
pulling. Dr. Bennoch also restricted two postural activities for Payne—climbing and balancing,
as well as one manipulative function, reaching. As to the reason for these restrictions, Dr.
1 Dr. Bennoch issued a report following this second evaluation of Payne. In some parts of the record, and in the Commission’s final award, the date of this report is referred to as “May 12, 2010,” “May 14, 2010,” and “May 14, 2012.” We have elected to use the date of “May 14, 2010” as it more closely identifies with the date of the report and that used by the Commission.
5 Bennoch cited the medical/clinical findings that related to Payne’s bilateral shoulder condition
stemming from his December 2004 work injury.
In a letter dated May 25, 2010, Dr. Bennoch expounded further on Payne’s impairment
ratings and his pre-existing conditions. In this letter, Dr. Bennoch noted that in addition to
Payne’s prior stated pre-existing conditions, he had also been diagnosed with sleep apnea after
the accident, but it was Dr. Bennoch’s opinion it pre-existed the fall. As a result of these pre-
existing conditions, and his “present medical status,” Dr. Bennoch found Payne would not be
“employable in the open labor market,” and the reason for his unemployability was the
“combination of bilateral shoulder disease along with pre-existing coronary artery disease,
diabetes and severe obstructive sleep apnea.”
In a second letter of July 6, 2010, Dr. Bennoch noted he failed to give an impairment
rating due to Payne’s “confirmed severe obstructive sleep apnea,” and rated Payne’s severe
obstructive sleep apnea at 10% permanent partial impairment to the body as a whole.
On February 15, 2011, at the request of Payne’s attorney, Payne was evaluated by Phillip
Eldred (“Eldred”), a certified rehabilitation counselor. Eldred found Payne did “have
impairments, which were vocationally disabling such as to constitute a hindrance or obstacle to
employment before December 24, 2004.” Eldred concluded Payne had “vocational restrictions
at less than the sedentary work level[]”; there were no sedentary occupations to which Payne’s
skills would transfer if he were capable of working in sedentary work; Payne would be restricted
to certain physical tasks and to certain work environments; Payne would not be retrainable to
perform sedentary work; and his age significantly affected his ability to do gainful work. As a
result, Eldred found that it was unlikely an “employer in the normal course of business would
consider employing [Payne].”
6 On March 16, 2011, at the request of the SIF, Mary Titterington (“Titterington”), a
vocational rehabilitation counselor, was asked to evaluate Payne by reviewing Payne’s medical
records, Dr. Bennoch’s reports and letters, Eldred’s report, and Payne’s deposition. Titterington
issued a report and opined that Payne had acquired transferable job skills through his past work
of having the “ability to schedule workers for delivery, to supervise, to document delivery type
of records in computers” and while he could not return to his former work of truck driving, there
were jobs at the sedentary-to-light-level work Payne could perform.
On November 10, 2011, Payne proceeded to hearing on his claim against the SIF. Payne
testified that his December 24, 2004 work injury made driving trucks uncomfortable, required
lots of over-the-counter pain medications, and limited his shoulder strength and range of motion.
He also testified the shoulder pain radiated into his chest muscles and made him feel like he was
having a heart attack. After consulting with Dr. Ogden, Payne decided against having shoulder
surgery.
Payne testified that since his December 24, 2004 injury, his shoulders had deteriorated to
the point that he has arthritis in all of his joints. Payne specifically noted that repetitive motion
caused an increase in soreness, even if doing light work. Using a 10-point scale, Payne stated his
pain averages around a 5, but could increase to an 8 or a 10, with the worst being the pain that
wraps around to his chest. Payne testified that even driving his own vehicle to the hearing
resulted in shoulder and chest pain.
Payne also testified regarding his health conditions that pre-dated the December 24, 2004
work injury. Payne suffered a heart attack in December 1997 and had two stents placed in the
left side of his heart. Payne’s doctor advised him to avoid overexerting himself. Payne testified
that as a result, he stayed away from unloading trucks. Payne stated he was able to drive “just
7 fine” following the heart attack because there was nothing wrong with his shoulders, arms, and
upper body strength.
During his December 10, 2010 deposition, Payne testified that in the time period leading
up to his 2004 work injury, he did not have problems or symptoms related to his cardiac
condition. More specifically, Payne testified at his deposition as follows:
Q. Okay. So you had what they call angioplasty where they put two stents in to [sic] arteries that are closing up?
A. Yes, ma’am.
Q. Okay. Since you had that cardiac surgery, have you continued to have problems or symptoms that you think are related to your heart condition?
A. No, ma’am.
Q. Okay. No shortness of breath or chest pain or heart beating too fast or anything like that?
Q. Okay. You are on medication for blood pressure. Does that medication control your high blood pressure?
Q. Leading up to when you hurt yourself in 2004, were you having any kind of symptoms or problems related to your heart that affected your ability to do your job in any manner?
Q. Okay. I assume you had to take DOT [(Department of Transportation)] exams?
Q. Were you able to always pass your DOT exam?
8 Q. Since 2004, have you had any heart problems?
At the hearing on his claim against SIF, Payne attempted to clarify his previous
deposition testimony, and the following colloquy took place between Payne and his attorney:
Q. When [SIF’s attorney] asked you if you had any heart problems, and that’s not exactly what she said, but that’s the gist of it?
A. Uh-huh.
Q. And you said, No. What did you mean her to take from that?
A. I mean at that time, I was sitting there and I was feeling good and I’d been doing what I was supposed to do and, you know, I had no problems at that time. I did not tell her that - I didn’t have heart trouble and I did not tell her that I can do all those things and not have a problem.
Payne also testified at both his deposition and the hearing as to his pre-existing diabetes.
Payne’s diabetes was not diagnosed until after December 24, 2004, and he was not undergoing
any diabetes treatment leading up to his 2004 work injury. At the hearing, Payne indicated he
would now attribute prior foot and leg swelling that happened when he drove for long periods to
his then-undiagnosed diabetes.
In contrast, Payne testified at his deposition that he would not attribute any pre-existing
problems or symptoms to his then-undiagnosed diabetes. Payne’s deposition testimony was that
he was not having any diabetes symptoms prior to December 2004. At his deposition, Payne
denied any neuropathy or “pins and needles” in his extremities prior to December 2004, and he
specifically denied having any problems with his arms, back, or legs during that period. At his
deposition, Payne mentioned foot and ankle swelling in connection with his diabetes, but he
stated that the swelling started in 2006 or 2007.
9 Payne was also questioned about sleep apnea as a pre-existing condition at both his
deposition and the hearing. Payne was not diagnosed with sleep apnea until 2005, which was
after his December 2004 work injury. When asked at the hearing whether he had any problems
sleeping prior to his December 24, 2004 injury, Payne said no. However, Payne’s wife did ride
with him to make sure he did not drift off while on the road. When asked at his deposition
whether he had any problems prior to December 2004 that were, in hindsight, attributable to
sleep apnea, Payne said there were none. While he experienced occasional drowsiness, Payne
testified that, based on how long he worked as an over-the-road trucker with the condition, he
would not say that his sleep apnea actually hindered his ability to do his job. When questioned
about his current sleeplessness at night, Payne stated that the primary reason he could not sleep
was his shoulder pain.
Eldred testified and confirmed that in his opinion, Payne was permanently and totally
disabled due to a combination of his December 24, 2004 work injury and pre-existing
disabilities. On cross-examination, Eldred acknowledged there were no medical restrictions on
Payne prior to his December 2004 work injury.
Payne entered into evidence the independent medical evaluation reports and letters of Dr.
Bennoch and Dr. Bennoch’s deposition testimony. In his deposition, Dr. Bennoch discussed
Payne’s last injury, and his pre-existing medical conditions, including Payne’s cardiac condition,
sleep apnea, and diabetes. In his deposition, Dr. Bennoch opined that Payne was not employable
due to his collective medical problems. Dr. Bennoch was asked by Payne’s counsel to elaborate:
10 Q. And why do you believe that?
A. Well, I mean, there are lots of jobs you would be unable to do with your shoulders, but there are probably some potential jobs you might be able to do. Whereas when you combine it with things such as sleep apnea, coronary artery disease, and diabetes, it rules out -- in my opinion, I don’t think he -- he could work on a daily basis, 40 hours a week.
On cross-examination, Dr. Bennoch acknowledged that Payne did not report suffering
from symptoms or problems related to his cardiac condition during the period leading up to his
December 2004 injury. Dr. Bennoch confirmed that this omission was consistent with Payne’s
own deposition testimony denying cardiac problems prior to his December 2004 work injury.
Dr. Bennoch was also asked about Payne’s hypertension, something that Dr. Bennoch
acknowledged was diagnosed after Payne’s December 2004 work injury. Dr. Bennoch noted
that the hypertension was controlled by medication and that Payne would have no disability from
the hypertension.
Dr. Bennoch acknowledged that Payne’s diabetes was diagnosed after the December
2004 work injury, and that it also was controlled by medication. Dr. Bennoch conceded that
Payne would not have had any disability associated with diabetes. Regarding Payne’s sleep
apnea, Dr. Bennoch agreed that it was diagnosed after the December 2004 work injury, and that
various forms of treatment were available for sleep apnea. Other than a CPAP breathing
machine that Payne could not tolerate, Dr. Bennoch was uncertain whether Payne had pursued
any other treatment options for his sleep apnea. Dr. Bennoch testified Payne did not report to
him that the sleep apnea caused him any problems in his first evaluation.
Using the American Medical Association (AMA) guides, Dr. Bennoch assigned a 30%
impairment rating for Payne’s pre-existing cardiac condition due to the fact he had a heart attack
and two stents placed in his heart. Dr. Bennoch testified impairment ratings are meant to identify
11 the level of dysfunction in a given area of the body. In contrast, disability ratings measure the
actual negative effect on a person’s ability to work. Dr. Bennoch conceded that while he rated
Payne’s heart condition at 30% impairment, Payne’s true disability was much less based on the
fact there were no continuing problems with his cardiac condition. Dr. Bennoch acknowledged
that prior to his own examination of Payne, Payne did not have any imposed medical restrictions.
In his deposition, Dr. Bennoch qualified the opinion contained in his May 14, 2010 report
that Payne was permanently and totally disabled by reason of his bilateral shoulder injuries, by
saying that at the time he wrote that report, he was not aware of Payne’s deposition testimony
regarding his sleep apnea. However, Dr. Bennoch further testified that even without the sleep
apnea, Payne’s “bilateral shoulders alone would have been enough, in that present state, without
any further treatment, to be permanently and totally disabled.” Dr. Bennoch agreed Payne had
undergone no further treatment for his bilateral shoulder condition.
The SIF entered into evidence the deposition of Titterington. She testified that Payne
could perform sedentary-to-light work jobs such as a shipping and receiving clerk, unarmed
security guard, night desk clerk, information clerk, gate attendant, light sales clerk, or cashier.
On cross-examination, Titterington admitted the only materials she reviewed were those
furnished to her by the SIF. She also admitted she knew nothing about a speech impediment
Payne had, and she did not accept Dr. Bennoch’s opinions that Payne’s pre-existing conditions
preceded his on-the-job injury.
On March 21, 2012, the Administrative Law Judge (“ALJ”) found Payne to be
permanently and totally disabled due to a combination of Payne’s December 24, 2004 work
injury, and his pre-existing disabilities. In finding permanent total disability, the ALJ found the
12 vocational opinion of Eldred more persuasive than that of Titterington. The ALJ outlined the
four-part test for permanent total disability, and then made the following observations:
The [SIF] appears to primarily argue that Payne is not permanently and totally disabled. The [SIF], at least with the report and testimony of Titterington, does not argue that Payne is totally disabled due to the December 2004 accident alone or that he had a progression of personal medical conditions after his compensable injury that left him totally disabled irrespective of his accident. In any event, Payne’s medical profile indicates physical conditions that posed as a hindrance or obstacle to employment necessary as an element for benefits against the [SIF]. . . . These include his cardiovascular disease, diabetes and sleep apnea. . . . The [SIF]’s argument goes to the second element of the test[.]
Using Payne’s claimed limitations, the restrictions from Dr. Bennoch, and Eldred’s vocational
opinion, the ALJ ruled Payne was due permanent total disability benefits from the SIF.
The SIF filed an “Application for Review” with the Commission asserting that the ALJ’s
Award of permanent total disability benefits was erroneous. In specific support, the SIF
provided four reasons the ALJ’s award was erroneous. The first two claims of error related to
Payne’s inconsistent testimony and lack of credibility. The third claim of error was the finding
that Payne is permanently and totally disabled which “does not comport with his pursuit of full-
time, regular employment.” SIF’s fourth claim of error was the ALJ’s finding that SIF’s
vocational expert was incorrect and “does not comport with the doctor’s clear indication of
[Payne]’s ‘unlimited’ manipulative ability.” SIF further stated that, “[b]eyond these assertions,”
it intended to file a brief with the Commission. There was no motion to dismiss the Application
for Review, nor did the Commission conclude the Application for Review was insufficient.
After reviewing the evidence, reading the briefs, and considering the whole record, the
Commission issued its “Final Award Denying Compensation” on December 28, 2012. The
Commission reversed the ALJ’s Award of benefits against the SIF finding that Payne was
13 “permanently and totally disabled as a result of the primary injury considered alone and in
isolation.”
The Commission assessed the nature and extent of disability for Payne’s 2004 work
injury. On this issue, the Commission noted that Dr. Bennoch only assigned impairment ratings
and that he testified that Payne’s “true disability may be ‘much less’ than the impairment ratings
he issued.” Thus, the Commission found Dr. Bennoch’s impairment ratings to be “of little help.”
The Commission also found Dr. Bennoch’s restrictions “somewhat confusing”:
[I]n his report of May 18, 2006, Dr. Bennoch initially assigned postural limitations secondary to [Payne]’s preexisting weight and cardiovascular conditions. Then, in his report dated May 14, 2010, Dr. Bennoch identified the same restrictions, but this time suggested they were referable to the primary injury. Finally, at his deposition, Dr. Bennoch testified that all the limitations he identified in his first report are for the primary shoulder injuries. We take it that Dr. Bennoch retracts his initial restrictions referable to preexisting conditions and ultimately believes that all of the restrictions he identified are referable to the primary injury.
The Commission also noted Dr. Bennoch’s conflicting opinion testimony on the cause of
Payne’s permanent total disability. Dr. Bennoch opined in his May 14, 2010 report that Payne
was permanently and totally disabled due to the effects of the December 2004 work injury alone.
Then, at his deposition, Dr. Bennoch opined that Payne was totally disabled “owing to a
‘collection’ of his medical problems.” The Commission further noted that later on cross-
examination, Dr. Bennoch agreed that Payne’s bilateral shoulder condition alone was enough to
make him permanently and totally disabled.
The Commission also considered the vocational opinions of both Eldred and Titterington.
The Commission found “most credible Dr. Bennoch’s opinion, conceded on cross-examination,
that [Payne] is permanently and totally disabled owing to the work injury considered alone.”
While conceding that Payne had some pre-existing disability, the Commission concluded that the
14 reason for his total disability was the primary injury considered alone and in isolation. The
Commission concluded Payne failed to meet his burden of proving SIF liability for permanent
total disability benefits. This appeal followed.
The issues presented for our determination are:
1. Did the Commission have authority to consider whether Payne was permanently and totally disabled from his last injury alone based on SIF’s Application for Review?
2. Was SIF estopped from arguing Payne was permanently and totally disabled from the last accident alone because SIF previously argued during pre-trial discovery, at the hearing, and in its Application for Review, that Payne was not permanently and totally disabled at all; was Payne prejudiced by SIF’s argument because he had to “rebut a phantom defense on appeal after the record was closed”?
3. Was the Commission’s finding that Payne was permanently and totally disabled from the last accident alone against the weight of the evidence?
General Standard of Review in Workers’ Compensation Claims
As set forth in article V, section 18 of the Missouri Constitution, judicial review of the
Commission’s award is a determination of whether the award is “supported by competent and
substantial evidence upon the whole record.” Hampton v. Big Boy Steel Erection, 121 S.W.3d
220, 222 (Mo. banc 2003) (internal quotation marks omitted). Pursuant to section 287.495.1,2
this Court
shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award; [and]
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.
2 All references to statutes are to RSMo 2000, unless otherwise indicated.
15 § 287.495.1; Hampton, 121 S.W.3d at 222. An award that is clearly “contrary to the
overwhelming weight of the evidence is, in context, not supported by competent and substantial
evidence.” Id. at 223. This Court “must determine whether the Commission reasonably could
have made its findings and reached its result based upon all of the evidence before it.” Fitzwater
v. Dept. of Public Safety, 198 S.W.3d 623, 627 (Mo.App. W.D. 2006). This Court defers to the
Commission on issues involving the credibility of witnesses and the weight to be given to their
testimony; we review questions of law de novo. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 506
(Mo.App. S.D. 2011).
Points I and II: Commission’s Review
Standard of Review
Payne’s Point I claims the Commission erred in
finding that Payne was permanently and totally disabled from his last accident because [SIF] did not raise and thus preserve this issue in its Application for Review in that both § 286.090 and Commission regulation requires an applicant to raise the ‘issue in said appeal’ and to specifically state why the reasons that the findings and conclusions on controlling issues are not properly supported.
Questions of law, such as those raised under this point relied on, are reviewed by this
Court de novo and we do not defer to the findings of the Commission. Sell, 333 S.W.3d at 506.
Analysis
Payne argues the Commission lacked “jurisdiction to review the issue of whether Payne
was permanently and totally disabled from the fall because [SIF] did not include this issue in its
Application for Review.” Although we find SIF’s application is not a model of clarity and
should not be used as an example of error claimed in an Application for Review, we disagree
with Payne’s argument and believe SIF’s application raises the issue of permanent and total
disability from the fall alone.
16 Section 287.480.1 provides the process for review of an award by the Commission. This
section provides that upon a timely application for review with the Commission, the full
Commission shall review the evidence, or if considered advisable, hear the parties and their
witnesses, and make an award. “Timely filing of an application for review is jurisdictional; thus,
an untimely application divests the Commission’s jurisdiction.” Nolan v. Degussa Admixtures,
Inc., 246 S.W.3d 1, 5 (Mo.App. S.D. 2008). Here, there is no dispute among the parties that SIF
filed a timely Application for Review, thereby invoking the Commission’s jurisdiction. Id.
Therefore, Payne’s argument that the Commission “did not have jurisdiction to review the issue”
is without merit. (Emphasis added).
The question then becomes whether the Commission had authority to consider whether
Payne was permanently and totally disabled from the last injury alone based on SIF’s
Application for Review and/or adequate notice and opportunity for the parties to be heard on the
issue. Nolan, 246 S.W.3d at 5. The Commission’s regulations govern the contents of an
application for review. See 8 CSR 20–3.030(3)(A) (2003).3 Section (3) of 8 CSR 20-3.030
requires an applicant to state with specificity in the application the “reason the applicant believes
the findings and conclusions of the administrative law judge on the controlling issues are not
properly supported.” 8 CSR 20-3.030(3). “It is not sufficient merely to state that the decision of
the ALJ is not supported by competent or substantial evidence.” Mell v. Biebel Bros., Inc., 247
S.W.3d 26, 31 (Mo.App. E.D. 2008).
In this case, SIF’s Application for Review alleged the ALJ’s award of compensation for
permanent total disability benefits from SIF was erroneous and that the “finding that [Payne] is
permanently and totally disabled does not comport with his pursuit of full-time, regular
3 8 CSR 20-3.030 “outlines procedures for appeals from a final award, order or decision made by an administrative law judge of the Division of Workers’ Compensation.” (Italics in original).
17 employment.” While this allegation raised the issue of SIF’s liability, we find it barely satisfies
the 8 CSR 20-3.030(3) requirement that an applicant state their reasons with specificity. We
make this finding because the allegation, in the thinnest way possible, raises SIF’s liability for
permanent total disability benefits.4
This Court has examined the issue of whether the Commission violated 8 CSR
20-3.030(3)(A) on two occasions. See Nolan, 246 S.W.3d at 1; Stonecipher v. Poplar Bluff R1
School Dist., 205 S.W.3d 326 (Mo.App. S.D. 2006). In Stonecipher, the Commission
specifically found it was not limited to review of the errors complained of by the moving party.
205 S.W.3d at 331. We did not render a decision on whether the applicable regulations limit the
Commission’s review to issues raised in the application for review, but instead found that even if
the Commission could properly consider non-appealed matters “an issue we do not yet decide--
the Commission exceeded its power in [considering non-appealed matters] without [first]
affording Claimant appropriate notice and opportunity to be heard.” Id. at 332. We reiterated
this same conclusion in Nolan, and noted “[d]ue process, in Missouri workers’ compensation
cases and elsewhere, contemplates the opportunity to be heard at a meaningful time and in a
meaningful manner.” Nolan, 246 S.W.3d at 5.
Although Nolan and Stonecipher are instructive, they are distinguishable in that
consideration of whether a claimant was permanently and totally disabled from the last injury
alone is not a “non-appealed issue” in this case. Rather, it became an “appealed issue” when SIF
alleged the ALJ’s award of compensation benefits from SIF was erroneous. The law with
respect to the Commission’s review of this matter then is clear:
4 Payne did not file a motion to dismiss the Application for Review with the Commission.
18 ‘The Second Injury Fund compensates workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury.’ Pursley v. Christian Hosp. Northeast/Northwest, 355 S.W.3d 508, 513 (Mo.App.2011). Section 287.220 guides the Commission in determining when there is a previous disability that may be compensable from the Second Injury Fund. The Commission must first determine the degree of disability from the last injury alone. Mihalevich Concrete Constr. v. Davidson, 233 S.W.3d 747, 754 (Mo.App.2007). Consequently, preexisting disabilities are not relevant until this determination is made. Id. If the primary injury standing alone rendered [Claimant] permanently and totally disabled, then the Second Injury Fund has no liability and [Employer] is responsible for all of the compensation. Id.
Palmentere Bros. Cartage Serv. v. Wright, 410 S.W.3d 685, 691 (Mo.App. W.D. 2013)
(emphasis added).
Under the above-cited case law, the Commission must first determine the degree of
disability from the last injury alone when determining whether there is a disability that may be
compensable from SIF. See Mihalevich, 233 S.W.3d at 754 (holding “[w]hen determining
whether [SIF] has any liability, the Commission must first determine the degree of disability
from the last injury considered alone.”). SIF raised the issue of its liability to Payne in the
application by claiming the finding of SIF’s liability was erroneous, thus thereby triggering the
Commission’s duty to first determine the degree of disability from the last injury alone,
regardless of whether SIF specifically request the Commission to make such a finding. The
Commission’s award asserted its authority to determine the disability from the last injury as
follows:
For [SIF] to be liable for permanent total disability benefits, [Payne] must establish that: (1) he suffered a permanent partial disability as a result of the last compensable injury; and (2) that disability combined with a prior permanent partial disability to result in total permanent disability. . . . Section 287.220.1 requires us to first determine the compensation liability of [E]mployer for the last injury, considered alone. If [Payne] is permanently and totally disabled due to the last injury considered in isolation, [E]mployer, not [SIF], is responsible for the entire amount of compensation.
19 The case law is clear that once the issue of SIF’s liability is before the Commission, the
Commission must first determine the degree of disability from the last injury alone. Mihalevich,
233 S.W.3d at 754. If the Commission determines the last injury alone rendered the claimant
permanently and totally disabled, then SIF has no liability. Id.
Finally, the parties agreed that the overall issue of whether Payne was permanently and
totally disabled was fully briefed and before the Commission. Therefore, we find the
Commission had authority to consider whether Payne was permanently and totally disabled from
his last injury alone based on SIF’s Application for Review. Payne’s Point I is denied.
The same reasoning above applies to Payne’s Point II argument. In Point II, Payne
argues SIF was “estopped from arguing” Payne was permanently and totally disabled from the
last accident alone because SIF argued all along Payne was not permanently and totally disabled.
This argument again ignores the Commission’s obligation to first determine the degree of
disability from the last injury considered alone in determining SIF’s liability. See Mihalevich,
233 S.W.3d at 754; see also Point I supra.
Regardless of SIF’s argument, the Commission was obligated to first determine the
degree of disability from the last injury alone when determining SIF liability. For that reason,
we find Payne was not prejudiced and the Commission did not err in finding Payne was
permanently and totally disabled from the last accident alone. Payne’s Point II is denied.
20 Point III: Commission’s Finding is Not Against the Weight of the Evidence
‘Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.’ [Hampton, 121 S.W.3d at 223]. ‘An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.’ Id. Thus, ‘on a claim that an award is against the weight of the evidence, we examine the evidence in the context of the whole record to determine whether it is supported by competent and substantial evidence.’ [Fitzwater, 198 S.W.3d at 627]. Furthermore, on appeal, ‘no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the [C]ommission within its powers shall be conclusive and binding.’ Section 287.495.1. As such, ‘we defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony.’ Pavia v. Smitty’s Supermkt., 118 S.W.3d 228, 234 (Mo.App.2003).
Sell v. Ozarks Med. Ctr., 333 S.W.3d at 505-06.
Successful against-the-weight challenges, by their nature, involve four steps:
1. Identify a factual proposition needed to sustain the result;
2. Marshal all record evidence supporting that proposition;
3. Marshal contrary evidence of record, subject to the factfinder’s credibility determinations, explicit or implicit; and
4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition.
Jordan v. USF Holland Motor Freight, Inc., 383 S.W.3d 93, 95 (Mo.App. S.D. 2012) (citing
Stewart v. Sidio, 358 S.W.3d 524, 527–28 (Mo.App. S.D. 2012); Houston v. Crider, 317 S.W.3d
178, 187 (Mo.App. S.D. 2010)). In Jordan, this Court noted that Hampton speaks in terms of
“‘overwhelming weight,’ which may reflect a difference in degree, but not in analysis.” 383
S.W.3d at 95 n.3.
21 Payne challenges the Commission’s factual finding that “Dr. Bennoch’s opinion as stated
in his May 14, 201[0], report, and as conceded on cross-examination at his deposition, to be the
most credible on the question whether [Payne] is permanently and totally disabled owing to the
effects of the work injury considered alone.” Payne contends there are various facts that
contradict that finding, and then argues reasons why the facts that support the Commission’s
findings lack probative value when compared to the contradictory facts. Payne’s argument is
that the Commission’s finding is contrary to the testimony and report of vocational consultant
Eldred, reports of Dr. Bennoch, testimony of Payne, report and testimony of vocational
consultant Titterington, and the position taken by SIF before the Division.
“But contradictions in fact alone do not negate evidence nor make it incompetent.” Riley
v. City of Liberty, 404 S.W.3d 434, 441 (Mo.App. W.D. 2013). It is the job of the Commission
to sort through and resolve conflicts in 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.” Id. (emphasis in original). Simply put, it is the role of the Commission to
make credibility determinations between medical opinions. Id. at 442.
With respect to the question of whether Payne was permanently and totally disabled due
to the last injury alone, the Commission sorted through the evidence connected to Dr. Bennoch,
including his testimony, cross-examination, reports, opinions in his reports, and differing
restrictions Dr. Bennoch gave Payne over time and basis for the restrictions. The Commission
also considered Payne’s testimony, Eldred’s testimony, and Titterington’s testimony on this
issue. While there was conflicting testimony, the Commission sorted through the evidence,
22 resolved the conflicting evidence, and ultimately determined Dr. Bennoch’s opinion in his May
14, 2010 report was the most credible on this issue.5 This was the Commission’s job.
Noting again that this Court defers to the Commission on issues involving the credibility
of witnesses and the weight to be given their testimony, Sell, 333 S.W.3d at 506, we find there
was competent and substantial evidence to support the Commission’s award. Based on our
standard of review, we find the Commission’s finding that Payne was permanently and totally
disabled from the last accident alone was not against the weight of the evidence. Point III is
denied.
WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR
NANCY STEFFEN RAHMEYER, P.J. - Concurs
DANIEL E. SCOTT, J. - Concurs
5 The Commission noted it reached this conclusion “[a]fter careful consideration.”