In the Missouri Court of Appeals Eastern District DIVISION III
SHANE NULL, ) No. ED100191 ) Respondent, ) Appeal from the Labor and ) Industrial Relations Commission vs. ) ) NEW HAVEN CARE CENTER, INC., ) ) Appellant, ) and ) ) TREASURER OF MISSOURI AS ) CUSTODIAN OF THE SECOND ) INJURY FUND, ) ) Respondent. ) FILED: March 18, 2014
Introduction
New Haven Care Center, Inc. and Missouri Nursing Home Insurance Trust (“Employer”)
appeal from a final award issued by the Labor and Industrial Relations Commission
(“Commission”) finding Shane Null (“Null”) permanently and totally disabled as a result of a
work injury. The Commission found that Null’s permanent and total disability was caused by his
last work injury alone, and therefore denied Null’s claim against the Second Injury Fund
(“Fund”). On appeal, Employer challenges the Commission’s finding that Null’s permanent and
total disability resulted from the last accident alone, thereby relieving the Fund of any liability. Employer also challenges the Commission’s award of future medical treatment benefits. Finding
that the Commission’s decision is supported by competent and substantial evidence, we affirm
the Commission’s award. We dismiss point three of Employer’s appeal for failure to comply
with the requirements of Rule 84.04.
Factual and Procedural Background
Null began working for Employer, a ninety-bed skilled nursing facility, on March 27,
1989. Throughout his tenure, Null held a variety of jobs including nurse’s aide, certified medical
technician, and maintenance worker. Over the last four years of his employment, Null held the
position of maintenance supervisor, during which he supervised approximately 13 other
employees in caring for the building and outside grounds.
On May 27, 2004, Null was injured at work while operating a riding lawn mower that fell
over a 12-foot slope. Null was taken to the emergency room at St. John’s Hospital where he was
diagnosed with a single-level L1 compression fracture to his spine, concussive injury, and
multiple contusions and abrasions. In the ensuing months, Null sought treatment from several
physicians for continued pain in his back, including his primary care physician Dr. Thomas
Davis (“Dr. Davis”). Dr. Davis ordered physical therapy for the back pain and maintained Null’s
pain medications.
When Null continued to experience pain in his back, he was referred to Dr. Edwin
Dunteman (“Dr. Dunteman”) for pain management. Dr. Dunteman diagnosed Null with
compression fractures, spondylosis and lumbago, and advised Null to limit his work to four
hours per day with a fifteen-pound lifting restriction. Dr. Dunteman treated Null with a facet
injection, sympathetic block, and rhizotomy in February and March of 2005. In June 2005, Dr.
Dunteman performed a functional capacity evaluation on Null and thereafter concluded that Null
2 had reached a point of maximum medical improvement and was completely disabled from his
employment.
Null also fractured a small bone in his right ear as a result of the lawn mower accident.
Null had experienced problems with his ears since birth, and had been under the care of Dr.
James Benecke, an otologist and neurotologist since 1999. Following the accident, Dr. Benecke
performed surgery on Null’s right ear.
Null filed a workers’ compensation claim against Employer and the Fund on November
28, 2005, and an amended claim on November 9, 2010. Null’s amended workers’ compensation
claim alleged that he suffered from psychiatric conditions and injuries to his back, right ear, and
body as a whole as a result of the lawn mower accident. Null also alleged that he had injury to
his low back and left hand, hearing loss, and psychiatric conditions prior to the lawn mower
accident.
On July 12, 2011, a hearing was conducted before Administrative Law Judge Grant
Gorman (“the ALJ”). Null testified that he received his high school diploma and thereafter
received training as a welder, nurse’s aide, and a certified medical technician. Null also testified
about his prior medical conditions, including his history of back pain going back to 1994 and his
history with anxiety and depression dating to the 1990s. Null testified that his back problems
and psychiatric conditions worsened after the lawn mower accident, and that his back pain is
chronic, causing him trouble sitting, standing, walking, and bending.
On October 13, 2011, the ALJ issued his decision finding Null permanently and totally
disabled (“PTD”). The ALJ found Null’s PTD resulted from the lawn mower accident alone,
and assessed liability against the Employer, which was ordered to pay Null PTD benefits at the
rate of $488.12 per week. The ALJ also awarded Null future medical care benefits to cure and
3 relieve the effects of his work injury, including the injuries to his back, right ear, and psychiatric
conditions. The Fund was found not liable for any payments to Null.
On June 21, 2013, the Commission affirmed the award and decision of the ALJ in a two-
to-one decision. The majority adopted the decision of the ALJ, and Commissioner James Avery
wrote separately, dissenting. This appeal follows.
Points on Appeal
Employer presents three points on appeal. First, Employer asserts that the Commission
erred in concluding that Null’s last accident alone rendered him PTD. Second, Employer
contends that the Commission erred in awarding Null open medical for treatment of his right ear,
post-traumatic stress disorder (“PTSD”), and for narcotic drug pain management because the
record lacks sufficient evidence supporting the award. Finally, Employer alleges that the
Commission erred in failing to determine whether Null had a reasonable basis to discontinue the
vocational rehabilitation services tendered by Employer.
Standard of Review
In reviewing a workers’ compensation final award, “we review the findings and award of
the Commission rather than those of the ALJ.” Birdsong v. Waste Mgmt., 147 S.W.3d 132, 137
(Mo. App. S.D. 2004). We 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; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.
Section 287.495.1; Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003).
4 On appeal, “no additional evidence shall be heard and, in the absence of fraud, the
findings of fact made by the Commission within its powers shall be conclusive and binding.”
Section 287.495.1. We defer to the Commission on issues involving the credibility of witnesses
and the weight to be given to their testimony. Birdsong, 147 S.W.3d at 137. On appeal, our task
is solely to determine, based on the whole record, whether the award is supported by competent
and substantial evidence. Id. When the evidence before the Commission would warrant either
of two opposed findings, we are bound by the Commission’s determination despite supportive
evidence for the contrary finding. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo.
banc 2012). Unless the decision is clearly contrary to the overwhelming weight of the evidence,
we will affirm the decision of the Commission. Hampton, 121 S.W.3d at 223.
Discussion
It is incumbent upon us to first note several deficiencies in Employer’s brief. Rule
84.04(d)(2) requires that for each Point Relied On, appellant must identify the administrative
ruling or action challenged, provide a concise statement of the legal reasons for the claim on
appeal, and explain why the legal reasons support the claim of error. Johnson v. Buffalo
Lodging Associates, 300 S.W.3d 580, 582 (Mo. App. E.D. 2009); Rule 84.04(d)(2). The point
relied on should be stated in substantially the following form:
The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error].
Rule 84.04(d)(2). The “challenged ruling or action” refers to an action taken by the agency.
Waller v. A.C. Cleaners Mgmt., Inc., 371 S.W.3d 6, 10 (Mo. App. E.D. 2012). The legal reason
for the error must refer to the applicable statute authorizing review. Id. In a workers’
compensation case, this means that the error must explicitly refer to one of the four above-
5 referenced statutory grounds for reversal set out in Section 287.495.1. Parker v. Action
Contracting Corp., 100 S.W.3d 168, 171 (Mo. App. W.D. 2003).
Here, Employer has failed to provide a concise statement of the legal reasons for the
claim on appeal and explain why the legal reasons support the claim of error in each of its three
Points Relied On. Importantly, none of Employer’s three Points Relied On refers to one of the
four statutory grounds for reversal enumerated in Section 287.495.1. Compliance with the Rule
84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become
advocates by speculating on facts and arguments that have not been asserted. Stickley v. Auto
Credit, Inc., 53 S.W.3d 560, 562 (Mo. App. W.D. 2001). Insufficient points relied on preserve
nothing for review and constitute grounds for dismissal. Washington v. Blackburn, 286 S.W.3d
818, 821 (Mo. App. E.D. 2009).
Despite the mandatory nature of the requirements of Rule 84.04, this Court has discretion
to review non-compliant briefs ex gratia where the argument is readily understandable.
Moreland v. Div. of Employment Sec., 273 S.W.3d 39, 41 (Mo. App. E.D. 2008). Although
Employer’s first two Points Relied On violate Rule 84.04(d)(2), the standard of review discussed
by Employer under the corresponding argument section for these two points on appeal informs
us of the legal error Employer alleges - that the Commission’s decision is not supported by
competent and substantial evidence. Because we prefer to decide issues on their merits, we
review Points One and Two ex gratia.
However, we decline to consider Employer’s Third Point on appeal and dismiss this point
for failure to comply with Rule 84.04(d)(2). Point Three generally alleges error in the
Commission’s failure to specifically determine whether Null discontinued vocational services
with good cause. As with the first two points on appeal, Employer does not state the required
6 legal reason for any claim of reversible error. But unlike Employer’s first two points, the
argument section of the brief does not contain a statement of the applicable standard of review as
required by Rule 84.04(e). As a consequence of this deficiency, we are unable to determine
which of the four statutory grounds Employer asserts as a basis for reversal and would undertake
to advocate for Employer were we to suggest which of the four possible grounds, if any, supports
Employer’s position. Accordingly, Point Three preserves nothing for review and is dismissed.
We now address the merits of Employer’s first two points on appeal.
I. The Commission’s finding that Null’s PTD resulted from the May 27, 2004 injury alone is supported by competent and substantial evidence.
In its first point, Employer challenges the Commission’s finding that Null’s PTD resulted
from the May 27, 2004 injury alone. We presume that Employer reasons the Fund should be
responsible for at least a portion of Null’s award due to his preexisting injuries and conditions.
Under Section 28l.220, the Fund may be held liable in certain cases where there is a
finding of permanent disability when the employee is found to have a preexisting disability. In
such cases, the Fund may be held responsible for that portion of permanent disability attributable
to the preexisting condition. Section 287.220. To receive benefits from both the employer and
the Fund, an employee must have had a prior, permanent disability serious enough to constitute a
hindrance or obstacle to employment. See Section 287.220.
In deciding whether the Fund has any liability under Section 287.220, the Commission
must first determine the degree of disability stemming from the last injury considered alone.
Birdsong, 147 S.W.3d at 138. For this reason, whether an employee suffers from pre-existing
disabilities does not become a relevant inquiry until the employer’s liability as a result of the last
injury is determined. Id. If the last injury, in and of itself, rendered the employee permanently
and totally disabled, the Fund incurs no liability to the employee despite the presence of pre-
7 existing disabilities, and the employer is held responsible for the entire amount of compensation
awarded by the Commission. Id.
Here, the Commission adopted the findings of the ALJ, which expressly stated Null’s
PTD resulted from the last injury alone. Accordingly, the Commission assessed liability for
Null’s PTD benefits solely against Employer, and correspondingly denied Null’s claim against
the Fund. Employer reasons that the Commission’s decision is erroneous, asserting that Null
suffered from several pre-accident injuries and psychiatric conditions that combined with his
injuries from the lawn mower accident to cause Null’s PTD. Employer further argues that no
medical or vocational expert testified that Null’s PTD resulted solely from his last injury. We
disagree.
The record before us includes reports and testimony from various health care providers
and vocational experts. We acknowledge that certain portions of the medical evidence support
Employer’s position, and suggest the Fund should share liability for Null’s PTD. Were we to
limit our review to only this evidence, Employer would prevail on this point. However, the
required standard of review precludes such a narrow review and mandates the opposite approach.
Even if we agreed with the Employer’s position after reviewing the entire record, we may not
disregard the Commission’s finding and must affirm the Commission’s award if the record
contains sufficient competent evidence to support the award. We review the record in this matter
with that precise mandate.
We initially note that Null’s primary care physician, Dr. Davis, opined that Null’s May
2004 work accident caused him to be permanently and totally disabled. Specifically, Dr. Davis
reported that Null’s work-related acute fractures of his L1 and L5 vertebrae “have left him with
severe pain rendering him unable to perform even minimal load-bearing tasks. Because the pain
8 associated with his fractures and atrophying of his backbone muscles, he must change positions
frequently, approximately every ten to fifteen minutes, to avoid severe stiffness and chronic
pain.” Dr. Davis then concluded: “My assessment is that Mr. Null is permanently and
completely 100% disabled as the result of direct trauma to his spine and from his recovery from
that accident.”
Next, Dr. David Volarich (“Dr. Volarich”), Null’s medical expert, explained that the
injuries Null suffered as a result of the accident severely limited his ability to perform physical
work. Dr. Volarich evaluated Null on two separate occasions. Based upon the medical history
provided by Null, his physical examination, and Null’s medical records, Dr. Volarich diagnosed
Null with a compression fracture of the lumbar spine at L-1 and aggravation of degenerative disc
disease and degenerative joint disease causing intractable back pain with occasional lower
extremity radicular symptoms. Dr. Volarich concluded that the lawn mower accident was the
substantial contributing factor as well as the prevailing or primary factor causing these injuries.
Dr. Volarich reported that Null was able to work, but only with various limitations, including the
recommendation that Null avoid remaining in a fixed position for more than 20 to 30 minutes at
a time and that he frequently change positions to maximize comfort including sitting, standing,
and resting in a recumbent fashion. Regarding Null’s PTD status, Dr. Volarich opined:
If vocational assessment is unable to identify a job for which he is suited, then it is my opinion that he is permanently and totally disabled as a result of the work related injuries of 5/27/04 standing alone. I note that he had some preexisting disability in his low back as well as in his left hand, but he was able to work full, unrestricted duty prior to the 5/27/04 accident, which causes him the majority of his current difficulties. (Emphasis added).
Finally, vocational expert Stephen Dolan (“Mr. Dolan”) explained the connection
between Null’s physical limitations and his ability to maintain employment in the open labor
market. Mr. Dolan acknowledged Null’s limited intellectual capacities and noted that because of
9 these limitations “he’s reduced to jobs that are basically physical in nature.” However, because
Null has a very poorly controlled pain problem which makes him unable to tolerate protracted
activity, Mr. Dolan concluded that Null is unemployable in the open labor market. When asked
by counsel for the Fund whether Null’s unemployability was caused by the May 2004 work
accident alone, Mr. Dolan responded that if Dr. Volarich’s restrictions are due to the work
accident, then based on the work accident alone Null is unemployable in the open labor market.
We acknowledge Employer’s disagreement with the testimony and opinions offered by
Dr. Davis, Dr. Volarich and Mr. Dolan. However, we are not persuaded to ignore this evidence
or to disturb the Commission’s findings regarding such evidence. The testimony and reports
provided by Dr. Davis, Dr. Volarich, and Mr. Dolan constitute substantial and competent
evidence that supports the Commission’s finding that Null’s PTD is based on the May 2004
work accident alone. We further acknowledge that the voluminous record also contains
testimony suggesting that Null’s preexisting back conditions, hearing problems, and psychiatric
conditions contributed to Null’s PTD status; however, we again defer to the Commission’s
findings as to weight and credibility of testimony. ABB Power T & D Co. v. Kempker, 236
S.W.3d 43, 49 (Mo. App. E.D. 2007). The Commission was free to accept the opinions of Dr.
Davis, Dr. Volarich, and Mr. Dolan, and to reject any conflicting opinions given by other experts
in the case. See Maas v. Treasurer of State of Missouri, 964 S.W.2d 541, 545 (Mo. App. E.D.
1998) (“The Commission is free to disregard testimony of a witness even if no contradictory or
impeaching evidence is introduced.”). While Employer can reference evidence to challenge the
Commission’s award, the voluminous collection of medical records contains evidence supporting
the Commission’s finding that the May 2004 accident was the sole cause of Null’s PTD.
10 Accordingly, we are not persuaded that the Commission’s award lacks the support of substantial
and competent evidence and deny Employer’s first point on appeal.
II. The Commission’s award of future medical treatment benefits is supported by competent and substantial evidence.
In its second point on appeal, Employer challenges the Commission’s award of future
medical treatment benefits. The Missouri Workers’ Compensation Law includes an allowance
for future medical treatment for injured workers, “as may reasonably be required after the injury
or disability, to cure and relieve from the effects of the injury.” Section 287.140.1. In order to
receive future medical benefits, an employee need not present “conclusive evidence” that future
medical treatment is needed. Lawson v. Ford Motor Co., 217 S.W.3d 345, 351 (Mo. App. E.D.
2007). Instead, the employee needs only to show a reasonable probability that the future
treatment is necessary because of his work-related injury. Id. The employee is not required to
present evidence of the specific medical care that will be needed, but must establish through
competent medical evidence that the care requested flows from the accident. ABB Power T & D
Co., 236 S.W.3d at 52-53 (internal quotations omitted).
The Commission found that Null established a need for continuing medical care and
therefore specifically awarded Null future benefits “for ongoing medical care to cure and relieve
the effects of [Null’s] injury of May 27, 2004, which includes injuries to his back, right ear, and
psychiatric condition, as well as their sequelae.” However, in its Point Relied On, Employer
challenges “the award of open medical for the right ear, for post-traumatic stress disorder, and
for narcotic drug pain management.” In light of the inconsistency between the Commission’s
actual award and Employer’s characterization of the award, we note that this Court is limited to
reviewing the Commission’s actual award to determine if it is supported by competent and
substantial evidence. Accordingly, we determine only whether the award for future medical
11 treatment for Null’s back, right ear, and psychiatric condition is supported by competent and
substantial evidence. We hold that it is.
Null presented competent medical evidence showing his need for future pain
management as a result of his work-related back injury. As the Commission correctly noted, the
records of Dr. Davis show that he continues to treat Null for pain problems that are directly
related to the May 2004 work accident, including medication and periodic follow-up
appointments. Additionally, Dr. Volarich testified that as a result of the work accident, Null will
need future pain management which would include the use of oxycodone, a narcotic medication,
and cyclobenzaprine, a muscle relaxer. Dr. Volarich testified that Null will require those
medications indefinitely.
Null also met his burden of establishing a need for future medical treatment for the injury
to his right ear. The records of Dr. Benecke indicate that Null underwent surgery on July 8,
2005, for repair of damage to his right ear that was caused by trauma from the work accident.
Dr. Benecke later acknowledged that Null had preexisting hearing loss rated at 22%, but since
the work accident his hearing loss is rated at 32%. A claimant need only demonstrate a
“reasonable probability” that future medical treatment is necessary by reason of his work-related
injury. “‘Probable’ in this context means founded on reason and experience which inclines the
mind to believe but leaves room for doubt.” ABB Power T & D Co., 236 S.W.3d at 52 (internal
quotations omitted). Based upon Dr. Benecke’s opinion that Null suffers from ongoing hearing
loss, the Commission could reasonably conclude that future medical care will be needed to cure
and relieve the effects of the injury to Null’s right ear.
Finally, Null presented competent medical evidence establishing that he is in need of
psychiatric care attributable to the May 2004 work accident. Dr. Stillings testified that Null is