In the Missouri Court of Appeals Eastern District DIVISION THREE
MARK LYNCH, ) No. ED109502 ) Claimant/Appellant, ) Appeal from the Labor and Industrial ) Relations Commission vs. ) Injury Nos. 09-101188 and 09-039485 ) TREASURER OF THE STATE ) OF MISSOURI, CUSTODIAN OF ) THE SECOND INJURY FUND, ) Filed: October 19, 2021 ) Respondent. )
The claimant, Mark Lynch, appeals from the final award of the Labor and Industrial
Relations Commission denying his claim against the Second Injury Fund (“the Fund”) for
permanent total disability benefits. We find the Commission ignored the uncontradicted and
unimpeached evidence, including the only qualified expert medical opinion in the record,
without explanation and without a reasonable basis for finding the witnesses not credible, and
instead substituted its own theory of the cause of Claimant’s permanent total disability. We find
the Commission’s award concluding the Fund is not liable for Claimant’s permanent and total
disability is not supported by sufficient competent evidence and is against the overwhelming
weight of the evidence. We reverse and remand the decision of the Commission.
Factual and Procedural Background
Claimant worked for Anheuser-Busch Companies, Inc. (“the employer”) as a brewery
worker from 1974 until his retirement in January 2009. During his 35 years with the employer, Claimant worked in the draft beer and kettle departments, performing physically demanding and
often repetitive tasks such as driving a forklift to move and stack pallets and barrels; cleaning
kettles measuring 15 to 20 feet high; carrying 10-gallon buckets of ingredients from another floor
to the kettles and dumping the buckets into the kettles at least 50 times per day; breaking up large
bales of compressed hops so the hops could be crumbled and weighed; dumping 100-pound
containers of hops into kettles 13 times per day; and pushing 1,000-pound containers filled with
used beechwood chips through the brewery. Claimant estimated that when he worked as a
brewer with the kettles, he had to pull open and push closed the kettles’ vacuum-sealed doors,
which weigh about 100 pounds, as many as 100 times per day. He filled and sealed kegs of beer,
which required using a mallet to pound a stopper into the keg opening some 1,200 times a day.
Claimant also had to regularly hand-loosen and hand-tighten large hinges on the doors of the
mash cookers, and he had to repeatedly adjust steam valves, often by using a heavy mallet to
strike a stuck valve handle.
Claimant sustained numerous injuries over the course of his career. He injured his neck
and low back in a boating accident in 1990, and experienced ongoing pain thereafter, obtaining
treatment from Dr. Al Vellinga both before and after retirement. Claimant later sustained two
work-related injuries to his low back, the claims for which he settled with his employer. He
underwent surgery on his left shoulder in 1991, and later settled a claim with the Fund. He
sustained a work-related injury to his right shoulder in 1995, and underwent his first right
shoulder surgery. Claimant settled the claim for his right shoulder injury with his employer.
Claimant sought treatment for pain in his right shoulder shortly before his retirement, and
underwent a second surgery on his right shoulder immediately after his January 2009 retirement.
In 2003, Claimant sought treatment for increasing pain and stiffness in his hips, and underwent
2 total replacement of both hips. Claimant was diagnosed with osteoarthritis in both knees the year
before he retired, and x-rays also revealed progression of arthritis around his right hip.
Claimant sought treatment from Dr. Vellinga with primary complaints of neck and low
back pain one month after his retirement and right shoulder surgery. Although not acknowledged
in the Commission’s decision, Dr. Vellinga’s records dated February 11, 2009 report Claimant
also complained of weakness of the right upper extremity along with numbness and paresthesia
of his right hand. 1 Throughout the spring of 2009, Claimant continued to report numbness and
paresthesia in his right hand. Dr. Vellinga found Claimant’s right hand grasp was weak, and
referred him to neurologist Dr. Robert Margolis. Claimant consulted Dr. Margolis five months
after retiring for numbness and tingling in his hands and feet, underwent EMGs and nerve
conduction studies ordered by Dr. Margolis, and received a diagnosis of carpal tunnel syndrome.
Claimant sought treatment for his carpal tunnel syndrome from Dr. Vic Glogovac in September
2009, and filed workers’ compensation claims for injury to his hands and ears in December
2009. In the fall of 2010, Claimant underwent a carpal tunnel release on each wrist performed by
Dr. Glogovac. In 2011, Claimant was examined by Dr. Mitchell Rotman, a physician hired by
the employer. Claimant reported to Dr. Rotman that the surgery had not alleviated the symptoms
in his hands. Claimant settled with the employer in 2015 for 20% permanent partial disability of
each wrist with a 10% loading factor. He continued with his claim for permanent total disability
benefits against the Fund. Claimant alleged he is permanently and totally disabled as a result of a
combination of his carpal tunnel syndrome and his preexisting conditions.
1 “Paresthesia refers to a burning or prickling sensation that is usually felt in the hands, arms, legs, or feet, but can also occur in other parts of the body.” National Institutes of Health, National Institute of Neurological Disorders and Stroke, Paresthesia Information Page, available at https://www.ninds.nih.gov/ Disorders/All-Disorders/Paresthesia- Information-Page (last visited Sept. 23, 2021).
3 The claim against the Fund was heard before an administrative law judge (“ALJ”). The
Fund contested the date of injury and notice to the employer, which are not at issue in this
appeal. The parties stipulated that Claimant suffered an occupational disease in the course and
scope of his employment with the employer; that his permanent total disability rate was $772.53
per week; and that his permanent partial disability rate was $404.56 per week. The Fund did not
contest the amount of permanent partial disability previously reached via settlement with the
employer. The parties further stipulated that the only other issue for determination at the hearing
was the nature and extent, if any, of the Fund’s liability. The ALJ issued an award in favor of the
Fund. Claimant appealed to the Commission. In adopting and affirming the ALJ’s award, the
Commission accordingly found that Claimant developed an occupational disease arising out of
and in the course of his employment by performing repetitive motion tasks.
At the hearing before the ALJ, Claimant testified he experienced pain, tingling, and
numbness in his hands for over 20 years while working for the employer, including at the time of
his retirement. He described how employees were instructed to do a “swimmer’s shake” to
relieve pain and numbness in their hands. Claimant testified he needed help from other workers
to complete his job duties, relied on the advancement of technology, and struggled with the
heavy lifting required to perform his job. He stated he was no longer physically able to perform
his job duties because of the combination of the ringing in his ears, his carpal tunnel syndrome,
and all of his prior injuries.
Claimant submitted the complete medical report of board-certified orthopedic surgeon
Dr. Dwight Woiteshek, pursuant to section 287.210 RSMo. (2016), and the report and deposition
testimony of vocational consultant Terry Cordray. 2 Dr. Woiteshek evaluated Claimant in 2011,
2 All statutory references are to RSMo. (2016) except as otherwise indicated. Section 287.210 provides in relevant part:
4 and found Claimant permanently and totally disabled. Dr. Woiteshek opined that Claimant’s
“pre-existing disabilities discussed above [low back, neck, both shoulders, and both hips]
synergistically combines with the primary work related repetitious traumatic injuries leading up
to and including 1/15/09, also discussed above, to create a substantially greater overall disability
than the independent sum of the disabilities.” Dr. Woiteshek further articulated several
permanent work restrictions for Claimant, namely to minimize repetitive tasks, adopt proper
ergonomic use of the upper extremities, avoid impact and vibratory trauma, use appropriate
braces and support devices, avoid lifting more than three to five pounds with one hand with arms
extended, avoid lifting more than 10 pounds “with the arms dependent,” and performance of
daily hand exercises. Dr. Woiteshek concluded that Claimant was unable to return to any
employment as a result of the combination of his primary repetitious traumatic injuries and his
preexisting conditions. Dr. Woiteshek did not rate Claimant’s hearing loss.
Mr. Cordray, the vocational consultant, evaluated Claimant, reviewed his education and
work history, and reviewed his medical records. He found Claimant “has significant physical
limitations that preclude all jobs in the competitive labor market,” and “is totally vocationally
disabled.” 3 Mr. Cordray reviewed medical records from nine doctors, including examining
3. The testimony of any physician who treated or examined the injured employee shall be admissible in evidence in any proceedings for compensation under this chapter, but only if the medical report of the physician has been made available to all parties as in this section provided. … *** 5. As used in this chapter the terms “physician's report” and “medical report” mean the report of any physician made on any printed form authorized by the division or the commission or any complete medical report. As used in this chapter the term “complete medical report” means the report of a physician giving the physician’s qualifications and the patient’s history, complaints, details of the findings of any and all laboratory, X-ray and all other technical examinations, diagnosis, prognosis, nature of disability, if any, and an estimate of the percentage of permanent partial disability, if any. An element or elements of a complete medical report may be met by the physician’s records. *** 7. The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report …. 3 Mr. Cordray’s report states he “do[es] not provide opinions regarding causation.”
5 physicians Drs. Woiteshek and Rotman. Mr. Cordray included extensive excerpts from Dr.
Woiteshek’s report, and relied on the significant restrictions recommended therein to reach his
conclusion. Mr. Cordray also quoted Dr. Rotman’s report wherein Dr. Rotman opined:
He also has quite a bit of health issues which caused him to take early retirement from (sic) mainly his heart. He has issues with chronic problems from his right shoulder as well. … Considering he had no relief from his carpal tunnel releases and the fact that his nerve studies were fairly normal would suggest that his continued complaints are not related to carpal tunnel at all but are related to more of a peripheral neuropathy that he had been treated for in the past. Presently, at this time, I do not see any evidence of a work-related injury.
No records, report, or testimony from Dr. Rotman were submitted into evidence pursuant to
section 287.210. Mr. Cordray neither testified to nor relied on Dr. Rotman’s report. The Fund
acknowledged at oral argument that Dr. Rotman’s report was not in the record. The
Commission’s decision states “Dr. Rotman noted Claimant retired due to a heart condition, along
with problems with his right shoulder.” The Fund did not submit any evidence.
The Commission made no credibility findings regarding the testimony of either Claimant
or Dr. Woiteshek. The Commission accepted Dr. Woiteshek’s report and findings with no
contradictory evidence, and Dr. Woiteshek was not impeached. Likewise, Claimant was not
impeached. The Commission explicitly found Mr. Cordray’s opinion regarding Claimant’s total
vocational disability neither credible nor persuasive because Mr. Cordray stated he did not
consider Claimant’s subjective complaints, yet his report included a list of such complaints. The
Commission found Claimant admitted he retired before seeking treatment for his upper
extremities and was diagnosed with carpal tunnel syndrome only after his retirement.
Citing Claimant’s lack of diagnosis of and treatment for carpal tunnel syndrome prior to
retirement, and bolstered by a purported quote of Dr. Rotman included in Mr. Cordray’s report,
the Commission found “[Claimant]’s primary injury does not contribute to his overall permanent
6 and total disability.” Rather, the Commission found Claimant retired and removed himself from
the open labor market because of his preexisting disabilities:
The evidence of this case demonstrates Claimant’s permanent and total disability is not a result of a combination of the primary injury and the preexisting disabilities. The evidence suggests that Claimant chose to retire due to the limitations of his preexisting low back, neck, bilateral shoulder, and bilateral hip disabilities. Claimant, thus, fails to meet his burden of proof and is not entitled to benefits from the Fund.
The Commission concluded, “Claimant has not met his burden of proving his permanent total
disability results from a combination of his primary injury and preexisting disabilities.” 4 In a 2-1
decision, the Commission adopted the amended award of the ALJ denying Claimant benefits
from the Fund. Claimant appeals.
Standard of Review
We review all final decisions, findings, rules, and orders of the Commission to determine
“whether the same are supported by competent and substantial evidence upon the whole record.”
Mo. Const. art. V, sec. 18; White v. ConAgra Packaged Foods, LLC, 535 S.W.3d 336, 338 (Mo.
Mo. banc 2017). We will affirm the Commission’s decision unless: “(1) the Commission acted
without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by
the Commission do not support the award; or (4) there was not sufficient competent evidence in
the record to warrant the making of the award.” Section 287.495.1; Annayeva v. Special Admin.
Bd. of the Transitional Sch. Dist. of St. Louis, 597 S.W.3d 196, 198 (Mo. banc 2020); Williams v.
City of Jennings, 605 S.W.3d 152, 157 (Mo. App. E.D. 2020).
“The Commission’s finding of causation is a question of fact.” Schlereth v. Aramark
Unif. Services, Inc., 589 S.W.3d 645, 650 (Mo. App. E.D. 2019). In addition to findings of fact,
4 Whether Claimant was permanently and totally disabled was not identified as an issue at the hearing, and the Commission made no explicit finding of permanent total disability. However, the Commission’s decision three times implicitly acknowledges Claimant’s permanent and total disability as we have quoted.
7 we defer to the Commission’s determinations of witness credibility and the weight given to
conflicting evidence. Annayeva, 597 S.W.3d at 198. Where, as here, the Commission affirms and
incorporates the ALJ’s decision in its award, we review the ALJ’s findings as adopted by the
Commission. Schlereth, 589 S.W.3d at 651.
“The Commission’s factual findings are binding and conclusive only to the extent they
are supported by sufficient competent evidence and were reached in the absence of fraud.”
Harris v. Ralls County, 588 S.W.3d 579, 594 (Mo. App. E.D. 2019). Sufficient competent
evidence is evidence that has probative force on the issues, and from which the trier of fact can
reasonably decide the case. Schlereth, 589 S.W.3d at 650-51. When reviewing the Commission’s
decision, we view the evidence objectively, and we are not required to view the evidence and
reasonable inferences in the light most favorable to the award. Harris, 588 S.W.3d at 594.
Instead, we examine the evidence in the context of the whole record, and an award contrary to
the overwhelming weight of the evidence is, in context, not supported by competent and
substantial evidence. Id. In short, we must determine whether the Commission reasonably could
have made its findings and reached its result based on all the evidence before it. Id.
Discussion
Claimant challenges the Commission’s decision that he is not permanently and totally
disabled due to a combination of his carpal tunnel syndrome and his preexisting conditions. 5 The
parties have fundamentally different perspectives about the nature of the award in this case.
Claimant contends the Commission ignored the only expert medical opinion in the record, which
5 Claimant also filed a claim alleging hearing loss and tinnitus caused by his work. However, Claimant submitted no medical evidence of hearing loss or tinnitus. His point on appeal refers to only one “work-related injury,” and the argument section of his brief addresses only his carpal tunnel syndrome. Allegations of error not briefed shall not be considered in any civil appeal. Rule 84.13(a). As a result, Claimant has abandoned his appeal of the Commission’s denial of Fund liability for his tinnitus claim, and we do not consider it.
8 the Commission did not find lacked credibility, and substituted its own personal opinion
regarding the medical causation of Claimant’s permanent total disability. The Fund contends the
award hinges on credibility determinations, which are the exclusive province of the Commission,
and thus Claimant failed to meet his burden of persuasion. We agree with Claimant. The Fund’s
argument falls short because here the Commission neither made credibility findings nor offered
any explanation or rationale for rejecting Claimant’s testimony and for rejecting the only expert
medical opinion in the record.
The Fund compensates workers who become permanently and totally disabled as a result
of a combination of past disabilities and a later primary work injury. Section 287.220 RSMo.
(2000); Williams, 605 S.W.3d at 158. Fund liability arises when a claimant has a preexisting
permanent partial disability constituting a hindrance or obstacle to employment or re-
employment at the time he or she sustains the primary work injury. Id. A preexisting disability
constitutes a hindrance or an obstacle to employment when there is potential for “the pre-existing
injury [to] combine with a future work[-]related injury to result in a greater degree of disability
than would have resulted if there was no such prior condition.” Id.
Here, the Commission determined that Claimant’s permanent and total disability did not
result from a combination of his primary injury—carpal tunnel syndrome—and his preexisting
disabilities involving his low back, neck, shoulders, and hips. The Commission instead
determined that Claimant’s permanent and total disability resulted from his preexisting
disabilities only, without consideration of his carpal tunnel syndrome. Claimant contends the
synergistic effect of his preexisting disabilities when combined with his primary injury of carpal
tunnel syndrome left him unable to work on the open labor market and resulted in his permanent
and total disability. He argues the Commission’s denial of permanent total disability benefits
9 from the Fund is not supported by substantial and competent evidence and is contrary to the
substantial weight of the evidence.
When a claimant challenges the Commission’s findings on this basis, the claimant must:
(1) marshal all record evidence favorable to the award; (2) marshal all unfavorable evidence,
subject to the Commission’s explicit or implicit credibility determinations; and (3) show, in the
context of the whole record, how the unfavorable evidence so overwhelms the favorable
evidence and its reasonable inferences that the award is, in context, not supported by competent
and substantial evidence. Schlereth, 589 S.W.3d at 652. Adherence to this analytical framework
is mandatory because it reflects the underlying criteria necessary for a successful challenge. Id. A
challenge cannot succeed absent any of the criteria. Id.
Claimant first identifies the evidence favorable to the Commission’s award. It was
undisputed that Claimant suffered from numerous preexisting injuries resulting in disabilities to
his low back, neck, both shoulders, and both hips that rendered it difficult for him to perform his
job duties. The Commission based its award on Claimant’s testimony that he did not seek
treatment for carpal tunnel syndrome before he retired, and indeed, he retired before receiving a
diagnosis of carpal tunnel syndrome. The Commission further found that, “[t]wo years after
retirement, Claimant sought additional treatment for carpal tunnel syndrome, and indicated to Dr.
Rotman his retirement was not induced by symptoms of carpal tunnel syndrome.” This finding,
however, misstates the record as we discuss below.
Next, in marshalling the evidence contrary to the award, Claimant testified he
experienced pain, tingling, and numbness in his hands for over 20 years while working for the
employer, including at the time of his retirement. He described how employees were instructed
to do a “swimmer’s shake” to relieve pain and numbness in their hands. Claimant testified that
10 while he did not realize before he retired that he had carpal tunnel syndrome specifically, he
nevertheless had problems with both wrists and hands leading up to his retirement. He needed
help from other workers to complete his work, and struggled with the heavy lifting required to
perform his job duties. He also testified his carpal tunnel syndrome, combined with his prior
injuries, prompted him to retire and rendered him unable to work. Claimant’s medical expert, Dr.
Woiteshek, concluded that Claimant is permanently and totally disabled as a result of his carpal
tunnel syndrome synergistically combining with his preexisting conditions. Dr. Woiteshek
opined that Claimant’s injuries and conditions, including carpal tunnel syndrome, combined to
create overall greater disability than the simple sum of each separate injury or condition.
Although not acknowledged in the Commission’s decision, Dr. Vellinga’s records dated
February 11, 2009 report Claimant complained of weakness of the right upper extremity along
with numbness and paresthesia of his right hand. Throughout the months following his
retirement, Claimant continued to report to Dr. Vellinga numbness and paresthesia in his right
hand. Dr. Vellinga found Claimant’s right-hand grasp was weak, and referred him to neurologist
Dr. Robert Margolis. Claimant consulted Dr. Margolis in June 2009 for numbness and tingling in
his hands and feet, underwent EMGs and nerve conduction studies ordered by Dr. Margolis, and
received a diagnosis of carpal tunnel syndrome. Claimant sought treatment for his carpal tunnel
syndrome from Dr. Vic Glogovac in September 2009, which again the Commission’s decision
does not acknowledge. In the fall of 2010, Dr. Glogovac performed a carpal tunnel release on
each of Claimant’s wrists.
In its findings, the Commission correctly notes that Claimant consulted neurologist Dr.
Margolis for numbness and tingling in his hands in June 2009, five months after retiring. The
Commission does not mention, however, that Claimant reported problems with his hands to Dr.
11 Vellinga beginning in February 2009, or that he sought treatment from Dr. Glogovac beginning
in September 2009. Rather, in concluding that Claimant did not consider his primary hand and
wrist injury in his retirement plans, the Commission focused on the fall of 2010 when Claimant
underwent carpal tunnel release surgery on each wrist. The Commission further states, “[t]wo
years after retirement, Claimant sought additional treatment for carpal tunnel syndrome, and
indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel
syndrome.”
In addition to ignoring competent and substantial medical evidence of Claimant’s
complaints and treatment, the Commission’s decision misstates the record. Dr. Rotman did not
treat Claimant for problems with his hands and wrists. Dr. Rotman was a physician hired by the
employer to examine Claimant in 2011 for purposes of his worker’s compensation claims.
However, no certified medical records, complete medical reports, or deposition or live testimony
from Dr. Rotman were submitted into evidence in accord with the provisions of sections
287.140.7 and 287.210. 6 The Fund acknowledged at oral argument that Dr. Rotman’s report is
not in the record. The provisions of the Workers’ Compensation Law are to be strictly construed.
Section 287.800.1. Therefore, the ALJ, the Commission, and this Court cannot accept as
substantial and competent evidence a purported excerpt from an examining physician’s report,
quoted in the report of a non-medical witness, about what Claimant allegedly told the physician.
Such an excerpt does not qualify as a certified medical record under section 287.140.7. It does
6 Section 287.140.7 states:
Every hospital or other person furnishing the employee with medical aid shall permit its record to be copied by and shall furnish full information to the division or the commission, the employer, the employee or his dependents and any other party to any proceedings for compensation under this chapter, and certified copies of the records shall be admissible in evidence in any such proceedings.
(Emphasis added).
12 not qualify as a complete medical report under 287.210. It does not qualify as deposition or live
testimony.
The Commission nevertheless relied on this purported excerpt from Dr. Rotman’s report
cited only by Mr. Cordray in his vocational report. The Commission relied on this information
despite explicitly finding Mr. Cordray neither persuasive nor credible, and consequently finding
the report of Mr. Cordray not persuasive and not credible. The quote on which the Commission
relied is less than clear: “He also has quite a bit of health issues which caused him to take early
retirement from mainly his heart. He has issues with chronic problems from his right shoulder as
well.” In short, the Commission then relied on this unclear quote to find Claimant “indicated to
Dr. Rotman his retirement was not induced by symptoms of carpal tunnel syndrome.” This
finding is not supported by substantial competent evidence.
In the context of the whole record, the unfavorable evidence so overwhelms the favorable
evidence and its reasonable inferences that the award is, in context, not supported by competent
and substantial evidence. The sole expert medical evidence presented—the qualified medical
opinion of Dr. Woiteshek—was that Claimant is permanently and totally disabled because of a
synergistic combination of his carpal tunnel syndrome and preexisting injuries. The Commission
did not find Dr. Woiteshek lacked credibility or was not persuasive, and Dr. Woiteshek was not
impeached. The Commission, however, ignored Dr. Woiteshek’s uncontradicted opinion without
explanation, and instead determined that Claimant retired because of his neck, back, shoulder,
and hip problems, without consideration of his carpal tunnel syndrome. No medical expert
opined that Claimant was permanently and totally disabled because of his preexisting disabilities
without considering his hand and wrist problems. The Commission was not free to arbitrarily
disregard and ignore Dr. Woiteshek’s testimony regarding the cause of Claimant’s disability, and
13 instead “base its finding ‘upon conjecture or its own mere personal opinion unsupported by
sufficient competent evidence.’” Hazeltine v. Second Injury Fund, 591 S.W.3d 45, 63 (Mo. App.
E.D. 2019)(quoting Lawrence v. Treasurer of State-Custodian of 2nd Injury Fund, 470 S.W.3d 6,
16 (Mo. App. W.D. 2015)).
In addition, Claimant testified that he experienced problems with his hands and wrists for
many years before his retirement. He explained how the employer instructed him to do a
“swimmer’s shake” to relieve numbness and pain in his hands. He consistently testified he was
no longer physically able to perform his job duties because of the combination of the ringing in
his ears, his carpal tunnel syndrome, and all of his prior injuries. The Commission did not find
Claimant was not credible, nor was Claimant impeached. The Commission simply relied on
Claimant’s lack of treatment for and specific diagnosis of carpal tunnel syndrome before he
retired. At the same time, the Commission ignored other portions of Claimant’s testimony where
he stated he had issues and problems with his hands and wrists, but did not know he had carpal
tunnel syndrome specifically until diagnosed. And the Commission ignored the qualified medical
opinion of Dr. Woiteshek entirely. Because neither Claimant nor Dr. Woiteshek were explicitly
found not credible, contradicted, or impeached, we find the Commission erred in disregarding
this evidence.
Only to the extent they are supported by sufficient competent evidence are the
Commission’s factual findings binding and conclusive. Williams, 605 S.W.3d at 159. The record
must contain medical testimony or evidence supporting the Commission’s finding of causation.
Id. Absent medical testimony, any finding of causation would be based merely on conjecture and
speculation rather than on substantial evidence. Id. The Commission may not substitute an ALJ’s
personal opinion regarding medical causation for the uncontradicted testimony of a qualified
14 medical expert. Angus v. Second Injury Fund, 328 S.W.3d 294, 300 (Mo. App. W.D. 2010).
“When expert medical testimony is presented, an ALJ’s personal views of [the evidence] cannot
provide sufficient basis to decide the causation question, at least where the ALJ fails to account
for the relevant medical testimony.” Williams. 605 S.W.3d at 159-60. Likewise, where the record
is silent on the Commission’s findings on the weight of witness credibility, and neither the
claimant nor the testifying experts were contradicted or impeached, the Commission “may not
arbitrarily disregard and ignore competent, substantial and undisputed evidence.” Id. at 160
(quoting Hazeltine, 591 S.W.3d at 59).
Yet this is precisely what occurred here. In determining the Fund had no liability, the
Commission ignored the parties’ stipulation that Claimant suffered an occupational disease
within the course and scope of his employment, medical records of Claimant’s 2009 complaints
of hand and wrist problems, and Claimant’s testimony that the problems with his hands were a
factor in his decision to retire. He just did not know the specific diagnosis for the problems with
his hands. There was no evidence to contradict Claimant’s 2015 settlement with the employer for
20% permanent partial disability of each wrist with a 10% loading factor. Instead, the
Commission focused on Claimant’s lack of a diagnosis for his hand and wrist problems prior to
retirement. Further, the Commission relied on an excerpt from Mr. Cordray’s report ostensibly
quoting Dr. Rotman as to what Claimant allegedly told him to bolster its findings when Dr.
Rotman’s report was not entered into evidence and is not contained in the record. The
Commission then mischaracterized the nature of the examination performed in 2011 by Dr.
Rotman, the employer’s examining physician, to state that Claimant sought additional treatment
for carpal tunnel syndrome two years after he retired. Consequently, the Commission’s reliance
on an excerpt from a document outside the record cannot be credited to support a finding that
15 Claimant “indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel
The Fund, however, characterizes the essential issue in this case as a question of
credibility leading to Claimant’s failure to meet his burden of persuasion. The Fund cites Guinn
v. Treasurer of Missouri, 600 S.W.3d 874 (Mo. App. S.D. 2020), Anttila v. Treasurer of
Missouri, No. SD36826, 2021 WL 4236974 (Mo. App. S.D. Sept. 17, 2021), and Annayeva v.
Special Administrative Board of the Transitional School District of St. Louis, 597 S.W.3d 196, to
support its contention. All three cases are readily distinguishable from the present case. None of
the three cases involve an ALJ or the Commission disregarding uncontradicted and unimpeached
medical evidence and substituting their own opinion of medical causation.
Guinn and Anttila involved conflicting expert medical opinions regarding the cause of the
claimant’s permanent and total disability, and the Commission believed the opposing expert over
the claimant’s expert. Guinn, 600 S.W.3d at 877-78; Anttila, 2021 WL 4236974, at *2. Such is
not the case here. As the Southern District stated, “[t]his was a battle of experts.” Id. at *7.
Unlike the present case, Annayeva hinged on the claimant’s credibility, and the Commission
identified evidence in the record—such as the claimant’s inconsistent testimony and her initial
accident report—to support its explicit finding that the claimant’s explanation of the cause of her
fall was not credible. 597 S.W.3d at 200 n.8.
Generally, we defer to the Commission on issues involving the credibility of witnesses
and the weight given to testimony, and we acknowledge the Commission may decide a case upon
its disbelief of uncontradicted and unimpeached testimony. Abt v. Mississippi Lime Co., 388
S.W.3d 571, 578 (Mo. App. E.D. 2012); see also, Annayeva, 597 S.W.3d at 200 n.8 (stating once
expressed by the Commission, credibility determinations are binding on this Court).
16 Nevertheless, “where the record reveals no conflict in the evidence or impeachment of any
witness, the reviewing court may find the award was not based upon disbelief of the testimony of
the witnesses.” Abt, 388 S.W.3d at 578 (quoting Corp v. Joplin Cement Co., 337 S.W.2d 252,
258 (Mo. banc 1960)). The Commission may not arbitrarily disregard and ignore competent,
substantial, and undisputed evidence of witnesses who are not shown by the record to have been
impeached. Id. Likewise, the Commission may not base its findings upon conjecture or its mere
personal opinion unsupported by sufficient competent evidence. Id.
Here, there were no conflicting medical opinions in the record for the Commission to
weigh. The parties stipulated Claimant suffered an occupational disease and had preexisting
disabilities. It was undisputed that Claimant settled with the employer for 20% disability of each
wrist with a 10% loading factor. The only issue before the ALJ was Fund liability. The ALJ
implicitly found Claimant permanently and totally disabled, did not expressly find Dr. Woiteshek
or Claimant not credible, and offered no reasonable basis for finding evidence of causation not
credible. Thus, the Commission could not reasonably have made its findings and reached its
result based on all the evidence in the record. The totality of the evidence in the record supports a
finding of permanent and total disability due to a combination of Claimant’s carpal tunnel
syndrome and his preexisting conditions. Because we find the Commission arbitrarily
disregarded and ignored the substantial and undisputed evidence offered by Claimant, its denial
of his claim against the Fund is in error. Hazeltine, 591 S.W.3d at 65.
Conclusion
The Commission arbitrarily ignored the substantial, uncontradicted, and unimpeached
evidence, including the only qualified expert medical opinion in the record, without explanation
or a reasonable basis for finding the witnesses not credible. The Commission then substituted its
17 own theory of the medical cause of Claimant’s permanent total disability. As a result, the
Commission’s decision contrary to the only expert medical opinion in the record is not supported
by sufficient competent evidence and is against the overwhelming weight of the evidence.
On appeal, we review decisions by the Commission to ensure they are supported by
competent and substantial evidence. Mo. Const. art. V, sec. 18; White, 535 S.W.3d at 338.
Viewing the award objectively and examining the evidence in the whole record, we conclude
Claimant met his burden of establishing, under section 287.220 RSMo. (2000), that he is
permanently and totally disabled due to a combination of his preexisting permanent disabilities
and his primary injury. We find the Fund is liable for the Claimant’s permanent and total
disability.
We reverse the Commission’s decision that the Fund is not liable for Claimant’s
permanent and total disability, and we remand with instructions for the Commission to enter an
award consistent with the findings in this opinion.
__________________________________ Angela T. Quigless, J.
Philip M. Hess, P.J. and Colleen Dolan, J., concur.