Court of Appeals of Missouri, Western District, Second Division
from the Labor and Industrial Relations Commission
Karen King Mitchell, Presiding Judge, Cynthia L. Martin,
Judge and Gary D. Witt, Judge.
D. Witt, Judge.
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
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.
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,
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
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.
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
(1) Pace sustained her burden of proof that she injured her
neck and right shoulder in the October 4, 2002 accident at
(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; 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.
now appeals. Additional facts will be presented as necessary
in the analysis section below.
"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
"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).
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.
first three points on appeal each challenge the
Commission's decision that Pace's depression
constitutes a compensable injury under section
287.020.3. The following evidence was presented to
the Commission regarding Pace's depression diagnosis and
the causes of her depression.
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
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),  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."
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.
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.
One - Causation Legal Standard
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
Id. (internal quotations and citations omitted).
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).
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 ...