Court of Appeals of Missouri, Western District, Special Division
from the Labor and Industrial Relations Commission.
Before: Mark D. Pfeiffer, C.J., Gary D. Witt, and Anthony Rex
Anthony Rex Gabbert, Judge
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.
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. 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
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.
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.
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.
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
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).
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.
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 ...