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Jefferson City Country Club v. Pace

Court of Appeals of Missouri, Western District, Second Division

September 27, 2016

JEFFERSON CITY COUNTRY CLUB, Appellant,
v.
LYDIA PACE AND TREASURER OF THE STATE OF MISSOURI, CUSTODIAN OF THE SECOND INJURY FUND, Respondents.

         Appeal from the Labor and Industrial Relations Commission

          Before Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge.

          Gary D. Witt, Judge.

         Jefferson City Country Club ("Employer") appeals the unanimous Final Award of the Labor and Industrial Relations Commission (the "Commission"), which awarded Lydia Pace ("Pace") certain worker's compensation benefits arising out of injuries she sustained while working for Employer. Employer raises eleven claims of error. We affirm.

         Factual Background

         On October 4, 2002, Pace was employed by Employer as a waitress, bartender, and banquet worker. As she was breaking down some tables for Employer, five to six table toppers fell on her, throwing her back into another table and injuring her neck and right shoulder. Immediately following her injury, Pace consulted a number of doctors regarding her neck and shoulder and was referred to physical therapy and prescribed pain medications. Eventually, Pace was referred to a Dr. Timothy Graven ("Dr. Graven"), who, in August of 2004, performed surgery on Pace's neck. Following the operation, Pace was referred back to a previous doctor, Dr. Theodore Rummel ("Dr. Rummel"), for an operation on Pace's right shoulder. Pace was released from treatment by Dr. Rummel on November 17, 2005. All treatment for Pace's neck and right shoulder and temporary total disability ("TTD") resulting from these injuries until November 17, 2005 were authorized and paid for as a worker's compensation benefit by Employer.

         Following her release from treatment, Pace continued to suffer from shooting pain in her neck and down from her right shoulder. She also experienced numbness and cold down her arm to her right index finger. Further, she was diagnosed with depression. For a short period, Pace worked part-time at a restaurant carrying trays, but experienced increased pain when working and was fired from the job. Pace also worked for a short time for a kitchen setting out plates. Pace saw numerous doctors seeking treatment and disability opinions as to her condition between her release from treatment in November of 2005 and a hearing on temporary benefits by the Division of Workers' Compensation in 2010. A hearing was held and a Temporary Award was issued regarding the extent to which Pace was entitled to temporary benefits on November 30, 2010.

         Following the Temporary Award, Pace again underwent surgery on her neck performed by Dr. Michael Chabot ("Dr. Chabot"). Dr. Chabot performed a two level fusion. Following surgery, Pace reported having decreased neck pain but ongoing right shoulder pain that was exacerbated by any kind of repetitive movement.

         The parties stipulated that Pace sustained a compensable work-related injury on or about October 4, 2002, while working for Employer. They also stipulated that Pace timely notified Employer of the injury and timely filed a claim. Further, they stipulated as to the rate of compensation, the amount previously paid for TTD, and medical care. It was also stipulated that Pace achieved Maximum Medical Improvement ("MMI") on August 25, 2011.

         A final hearing was conducted and the Final Award was issued by an ALJ with the Division of Workers' Compensation in July of 2015 ("July 2015 Decision"). After an appeal to the Commission, the findings of the ALJ's July 2015 Decision were unanimously adopted but modified in two respects by the Commission: (1) the Commission supplemented the award to provide necessary analysis regarding causation between Pace's work-related injury and her depression; and (2) the Commission granted TTD for a longer duration than had been granted by the ALJ. As modified, the final decision found the following with regard to Pace's entitlement to benefits:

(1) Pace sustained her burden of proof that she injured her neck and right shoulder in the October 4, 2002 accident at work;
(2) Pace sustained her burden of proof that she is permanently and totally disabled ("PTD") as the result of her neck and right shoulder injuries coupled with her depressive symptoms;
(3) Pace failed to prove Second Injury Fund liability as there was no evidence of permanent disability preceding the October 4, 2002 accident and injury;
(4) Pace sustained her burden of proof that she is entitled to past temporary disability benefits from November 17, 2005 through August 24, 2011;[1] and
(5) Pace sustained her burden of proof that she is entitled to future medical treatment to treat her neck and right shoulder pain, as well as her depression.

         Employer now appeals. Additional facts will be presented as necessary in the analysis section below.

         Standard of Review

"We ... review the findings and award of the Commission rather than those of the ALJ, to the extent that it departs from the ALJ's ruling." [Small v. Red Simpson, Inc., 484 S.W.3d 341, 344 (Mo. App. W.D. 2015).] "To the extent that the Commission affirms and adopts the ALJ's findings and conclusions, we review the ALJ's findings and conclusions." Id. We may modify, reverse, remand for rehearing, or set aside the award of the Commission only if we determine that the Commission acted without or in excess of its powers, that the award was procured by fraud, that the facts found by the Commission do not support the award, or that there was not sufficient competent evidence to warrant making the award. Section 287.495.1
"We review the whole record to determine whether there is sufficient competent and substantial evidence to support the award or if the award is contrary to the overwhelming weight of the evidence." Gleason v. Treasurer of State of Missouri-Custodian of Second Injury Fund, 455 S.W.3d 494, 497 (Mo. App. W.D. 2015) (internal citation omitted). "This Court defers to the Commission's factual findings and recognizes that it is the Commission's function to determine credibility of witnesses." Riley v. City of Liberty, 404 S.W.3d 434, 439 (Mo. App. W.D. 2013) (quoting Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012)). "This Court may not substitute its judgment on the 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." Riley, 404 S.W.3d at 439. "The Commission's determinations of law, however, are reviewed independently." Gleason, 455 S.W.3d at 497.

Lincoln Univ. v. Narens, 485 S.W.3d 811, 814-15 (Mo. App. W.D. 2016) (footnote omitted).

         The overwhelming majority of Employer's arguments request this Court to disregard this long standing standard of review and ask us to reweigh the evidence and find Employer's witnesses to be more credible than the Employee's witnesses. This we cannot and will not do.

         Analysis

         Depression Causation

         Employer's first three points on appeal each challenge the Commission's decision that Pace's depression constitutes a compensable injury under section 287.020.3.[2] The following evidence was presented to the Commission regarding Pace's depression diagnosis and the causes of her depression.

         Dr. David Volarich ("Dr. Volarich") evaluated Pace in January of 2008 and diagnosed her with having depression. At that time, he referred Pace to a psychiatrist for further evaluation. Dr. Volarich testified in 2012 that Pace continued to suffer from disabling depression. Dr. Barbara Markway ("Dr. Markway") evaluated Pace in February of 2008 and reached the medical conclusion that Pace suffered from depression, triggered by her 2002 accident and injury, which was exacerbated by her subsequent inability to work. Dr. Michael Jarvis ("Dr. Jarvis") examined Pace in November of 2008 and concluded that Pace did not suffer from a depression as a result of her injuries but rather was distressed by the workers' compensation claim process. Dr. A.E. Daniel ("Dr. Daniel"), a physician specializing in psychiatry, testified in the 2012 hearing regarding temporary benefits that Pace has a depressive disorder that is disabling. He testified that the pain resulting from Pace's October 4, 2002 accident and injury is the prevailing factor in the development of Pace's psychiatric disorder. Without seeing Pace again, Dr. Jarvis issued a supplemental report disagreeing with the conclusions of Dr. Daniel, concluding that Pace has an adjustment disorder with a depressive mood related to the litigation process rather than depression arising out of her work-related injury.

         The ALJ concluded after considering the evidence above that "[b]oth Dr. Daniel and Dr. Jarvis agree that Ms. Pace suffers from depression related to the accident and injury of October 4, 2002, although the doctors disagree on the exact diagnosis and the part that the October 4, 2002 accident plays in the depression." The ALJ concluded that the depression was caused by Pace's work injury and, thus, compensation for the depression and treatment of the depression was warranted. The Commission, reviewing the ALJ's decision, found that the ALJ did not apply the proper statutory test regarding causation. The Commission found that the appropriate test, pursuant to section 287.020.2 (RSMo 2000), [3] requires that for an injury to be compensable it must be related to work, which means that work was "a substantial factor in the cause of the resulting medical condition or disability."

         The Commission then reviewed the evidence before the ALJ and adopted the ALJ's express findings with regard to the persuasive force of the competing expert opinions on the causation issue and adopted the ALJ's implied finding that Dr. Daniel was more persuasive in his testimony regarding the cause of Pace's depression. The Commission concluded that work was a substantial factor in causing her depression. The Commission also noted that Employer, in arguing that Pace had not proven causation, did not present facts or argument regarding why its expert should have been found to be more persuasive, but only that its expert's opinion must be accepted to the exclusion of all others. The Commission also noted that Employer repeatedly misstated the record in its arguments to the Commission.

         Employer first argues, in Point One on appeal, that the Commission used the wrong legal standard for the causation required to permit compensation for Pace's depression by assuming that proof of depressive symptoms alone constituted proof of causation. Employer also argues in Points Two and Three on appeal that there was not substantial evidence supporting the Commission's finding regarding causation.

         Point One - Causation Legal Standard

         In Point One on appeal, Employer argues that the Commission used the wrong legal standard when it found that Pace's depression was compensable. The claimant in a workers' compensation case has the burden to prove all the essential elements of her claim, including the causal connection between the injury and work. Angus v. Second Injury Fund, 328 S.W.3d 294, 299 (Mo. App. W.D. 2010).

Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission. Pursuant to the statute, "[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability." Section 287.020.2. Nonetheless, an injury is not compensable merely because work was a triggering or precipitating factor. Awards for injuries "triggered" or "precipitated" by work are nonetheless proper if the employee shows the work is a "substantial factor" in the cause of the injury. Thus, in determining whether a given injury is compensable, a work related accident can be both a triggering event and a substantial factor.

Id. (internal quotations and citations omitted).

         Employer's Point One on appeal is perplexing as it claims the Commission erred in finding that work was a substantial factor in Pace's injury because it "assumed proof of depressive symptoms, alone, constituted proof of causation of that condition." Employer's point has no merit as the Commission explicitly accepted as credible and persuasive the expert medical testimony of Dr. Daniel and concluded from the evidence that work was a substantial factor in causing Pace's depression. Dr. Daniel in his report and deposition stated that, in his expert medical opinion as a psychiatrist, Pace suffers from depression that was directly caused by the injuries she suffered while working for Employer. Dr. Daniel stated in his report that the onset of Pace's depression "is proximally related to the work injury on October 4, 2002 and subsequent chronic pain and unemployment" and that "the cause of Ms. Pace's psychiatric disorder is the work injury on October 4[, ] 2002; therefore, the work-related injury is the prevailing factor." Although not explicitly stated, the Commission reasonably interpreted Dr. Daniel's opinion that work was the "prevailing factor" as satisfying the "substantial" factor requirement, the legal standard that applies here, which was reasonable, given that satisfying the "prevailing factor" standard is more difficult than meeting the "substantial factor" standard. See Leake v. City of Fulton, 316 S.W.3d 528, 531-32 (Mo. App. W.D. 2010) ("prevailing factor" standard is a higher standard than the previous "substantial factor" standard).

         Employer complains that the Commission engaged in no analysis regarding causation. It is unclear to the Court what further analysis Employer believes was required. "[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." Angus, 328 S.W.3d at 300 (quoting Elliott v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 658 (Mo. App. W.D. 2002)). The Commission considered the expert medical opinions provided as to the causation issue and accepted as credible and persuasive evidence that established work was a substantial factor in ...


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