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Treasurer of State of Missouri v. Majors

Court of Appeals of Missouri, Western District, Special Division

September 6, 2016

DARYL MAJORS, Respondent.

         Appeal from the Labor and Industrial Relations Commission.

          Before: Mark D. Pfeiffer, C.J., Gary D. Witt, and Anthony Rex Gabbert, JJ.

          Anthony Rex Gabbert, Judge

         The Treasurer of the State of Missouri as Custodian of the Second Injury Fund (SIF) appeals the final award of the Labor and Industrial Relations Commission granting employee Daryl Majors permanent total disability benefits, medical expenses, and future medical care for a 2012 work injury. In SIF's sole point on appeal, SIF argues that the Commission erred in awarding permanent total disability benefits to Majors because Majors did not meet the statutory requirements for such benefits. We affirm.

         Statement of Facts

         On March 29, 2012, while working as a street sweeper for the City of Marshall, Daryl Majors slipped while stepping down from his truck onto the curb and twisted his right knee. Majors was referred to Dr. Daniel J. Stechschulte for treatment. On April 25, 2012, Dr. Stechschulte diagnosed Majors with a meniscal tear. Dr. Stechshulte also noted other degenerative conditions in the same knee. An arthroscopy was performed on Major's right knee and he was subsequently diagnosed with several impairments including; partial medial and lateral meniscectomies, a patellofemoral chondroplasty, loose bodies, partial thickness anterior cruciate ligament tear and degenerative arthritis.[1] On September 11, 2012, Dr. Stechschulte recommended permanent light duty for Majors at work with restrictions that included wearing a knee brace at all times, no lifting below the knee, no kneeling, no squatting, no climbing, no running, and no pivoting of the right knee.

         Majors returned to work after the arthroscopy. Upon filing a workers' compensation claim for the 2012 right knee injury, Majors retained orthopedic surgeon Dr. James Stuckmeyer to provide a medical diagnosis and assessment on the condition of his knees. In his February 2013 report, Dr. Stuckmeyer stated that Majors was not at maximum medical improvement and would need a total right knee replacement. Dr. Stuckmeyer provided that, "if no additional treatment were provided, Majors would be left with sixty percent (60%) disability in his right knee coupled with fifty percent (50%) disability in his left knee resulting from pre-existing conditions and prior injuries." Ultimately, Dr. Stuckmeyer formed the opinion that Majors was physically unable to perform many physical tasks required in manual labor such as, but not limited to, bending his knees, squatting below parallel, twisting his knees, and standing for long periods of time. He based his opinion on the combination of the 2012 right knee work accident and the pre-existing left knee conditions.

          Terry Cordray, a certified rehabilitation counselor, assessed Majors' vocational abilities. Cordray based his conclusions with regard to Majors' abilities to compete in the open labor market, in part, on vocational evaluations he conducted. Results yielded that Majors could spell at the seventh grade level and compute math at the tenth grade level. Majors never obtained his high school diploma or GED. Because Majors was sixty-one years old with no skilled work experience, Cordray opined that he had no transferable skills. Ultimately, due to Majors' education level, physical work limitations, and limited work experience, Cordray concluded that Majors had access to only three percent of the jobs in Saline County and only four percent of the jobs in Missouri. Cordray concluded that Majors is unable to compete for work in the open labor market as a result of the primary right knee injury combined with the pre-existing left knee conditions.

         Majors filed a claim against his Employer for the 2012 right knee injury as well as a claim against the SIF alleging that the 2012 right knee injury combined with prior injuries and the disability to his left knee resulted in permanent and total disability. The claim against the Employer was subject to stipulation and compromise settlement on June 3, 2014 between the Employee and Employer and that portion of the Award is not before the court. The Administrative Law Judge (hereinafter "ALJ") concluded that Majors was not permanently and totally disabled. As a result, the ALJ awarded Majors $9, 746.16 in permanent partial disability benefits from the SIF. In response to the ALJ's ruling, Majors filed an application for review with the Labor and Industrial Relations Commission ("Commission"). The Commission modified the ALJ's award and ordered the SIF to pay permanent and total disability benefits. The Commission concluded that (I) relevant physician testimony and reports certified Majors as permanently and totally disabled and (II) the Commission was permitted to consider all the of available evidence, including vocational expert testimony and assessments, in finding a permanent total disability. The Commission concluded that Majors was permanently and totally disabled as a result of his preexisting left knee conditions combined with the subsequent 2012 right knee injury.

         In concluding that the overwhelming weight of the evidence favored a finding of a permanent and total disability, the Commission relied, in part, upon the testimony and opinion of Dr. Stuckmeyer. The Commission also found the expert testimony of vocational expert Cordray to be persuasive. There was no contrary expert vocational or medical opinion evidence presented by the SIF. SIF appeals the Commission's finding that Majors was permanently and totally disabled.

         Standard of Review

         Our review of the Commission's decision is governed by Article V, Section 18, of the Missouri Constitution and Section 287.495, RSMo.Cum. Supp. 2000. Article V, Section 18, provides for judicial review to determine whether the Commission's award is authorized by law and supported by competent and substantial evidence on the whole record. "If supported by such evidence, and in the absence of fraud, the Commission's findings of fact are conclusive." Coday v. Division of Employment Sec, 423 S.W.3d 775, 778 (Mo. banc 2014). The appellate court affirms the Commission's decision unless (i) the Commission acted in excess of its powers, (ii) the award was procured by fraud, (iii) the facts do not support the award, (iv) or insufficient competent evidence exists in the record to warrant the making of the award. Section 287.495 RSMo. Cum. Supp. 2015. The appellate court will affirm the Commission's decision if it determines that the Commission could have "reasonably made its findings, and reached its result, upon consideration of all the evidence before it." Hornbeckv. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012).

         Upon review of the Commission's decision, "we view the evidence objectively and not in the light most favorable to the decision of the Commission." Poarch v. Treas. of State Custodian of Missouri-Custodian of Second Injury Fund, 365 S.W.3d 638, 642 (Mo. App. 2012). Where a Commission's decision is based on its interpretation and application of the law, we review the Commission's conclusions of law and its decision de novo. Riley v. City of Liberty, 404 S.W.3d 434, 439 (Mo. App. 2013). However, we defer to the Commission's factual findings on issues such as the credibility of witnesses and the weight given to their testimony. Poarch, 365 S.W.3d at 642. "This includes the Commission's evaluation of expert medical testimony." Pruett v. Fed. Mogul Corp., 365 S.W.3d 296, 304 (Mo. App. 2012). "The Commission, as the finder of fact, is free to believe or disbelieve any evidence." Molder v. Missouri State Treas., 342 S.W.3d 406, 409 (Mo. App. 2011). Thus, when the evidence before the Commission "would warrant either of two opposed findings, [we are] bound by the [Commission's] determination, and it is irrelevant that there is supportive evidence for the contrary finding." Hornbeck, 370 S.W.3d at 629.


         In SIF's sole point on appeal, SIF contends that the Commission erred as a matter of law in awarding permanent and total disability benefits by failing to apply the appropriate statutory standard in its finding that Majors is permanently and totally disabled. Under Section 287.190.6(2) RSMo. "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." More specifically, SIF contends that the statute requires the qualifying medical expert to use the specific phrase "employee is permanently and totally disabled" when declaring a finding of permanent and total disability status in order for a demonstration or certification to be present. SIF acknowledges that Dr. Stuckmeyer assessed a "60% permanent partial disability to the right knee accompanied by a permanent partial disability at 50% to the left knee" due to pre-existing injuries and conditions. However, SIF asserts that, because Dr. Stuckmeyer did not explicitly make a ...

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