Court of Appeals of Missouri, Southern District, First Division
JOHN O. MCDOWELL, Claimant-Respondent,
MISSOURI DEPARTMENT OF TRANSPORTATION, Employer-Appellant, and MISSOURI HIGHWAY and TRANSPORTATION COMMISSION, Insurer-Appellant.
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Missouri Department of Transportation ("Employer") appeals the portion
of the workers' compensation award ("the
award") that awarded John O. McDowell
("Claimant") $17, 007.60 for permanent partial
disability based on a psychiatric disability resulting from a
June 2012 accident in which Claimant's right ankle was
crushed by a "a large piece of
first point claims the Labor and Industrial Relations
Commission ("the Commission") erred in admitting
the "written testimony" of a psychiatrist under
section 287.210.7 because it
violated Employer's federal and state constitutional due
process rights and right to
cross-examination under section 491.070. Employer's second point claims
"there was not sufficient competent evidence"
supporting the award for psychological injury because
Claimant did not "submit any evidence of permanent
disability . . . demonstrated and certified by a physician
within a reasonable degree of medical certainty[.]"
See section 287.190.6(2).
Point 1 was not preserved for appellate review, and the
psychiatrist's opinion constituted sufficient competent
evidence to prove psychological injury, we affirm.
Principles of Review and Governing Law
A reviewing court may modify, reverse, remand for rehearing,
or set aside a workers' compensation award upon a finding
that: (1) the commission acted without or in excess of its
powers; (2) the award was procured by fraud; (3) the
commission's factual findings do not support the award;
or (4) there was not sufficient competent evidence in the
record to warrant the making of the award.
Malam v. State, Dep't of Corr., 492 S.W.3d 926,
928 (Mo. banc 2016). See also section 287.495.1. We
"examine the whole record to determine if it contains
sufficient competent and substantial evidence to support the
award, i.e., whether the award is contrary to the
overwhelming weight of the evidence." Hampton v. Big
Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo.
banc 2003). We "must defer to the commission's
findings on issues of fact, the credibility of the witnesses,
and the weight given to conflicting evidence."
Malam, 492 S.W.3d at 928.
Summary and Procedural History
testified during an April 2016 hearing before an
administrative law judge ("ALJ") that he was
working as a crew leader for Employer in June 2012, and he
had worked for Employer for 25 years. As a part of his job
duties, Claimant patched pot holes, mowed right-of-ways,
washed bridges, sawed concrete, ran jackhammers, plowed snow,
and did "any type of highway maintenance that need[ed]
to be done." On June 6, 2012, Claimant was in a ditch
cut "approximately four feet deep" across a
roadway, and he was raking gravel where a piece of pipe was
to be installed. A "large piece of asphalt broke off the
edge of the ditch and" fell on Claimant's leg,
pinning him "to the side of the ditch" and breaking
the lower portions of Claimant's right tibia and
fibula. Claimant's crew broke
the asphalt into smaller pieces to get it off of him, and he
was transported by ambulance to the hospital.
undergoing surgery, Claimant returned to work "pretty
quick" by working "an office job" for Employer
"for quite a while." In January 2013, Claimant had
a second surgery to graft bone from his hip into one of his
injured leg bones, and the surgeon also added "some more
hardware to" that bone. Claimant eventually returned to
his position as a crew leader for Employer in April or May
continued to have pain and swelling in his leg, especially on
days when he did "stationary flagging[, ]" snow
plowing, or pothole patching. Before the work injury,
Claimant did "a lot of the sign work, climbing ladders,
[and] moving replacement signs." After the work injury,
Claimant could not "hardly work off of ladders."
Claimant's supervisor made "reasonable
accommodations" for Claimant because of the work injury,
such as not having Claimant "flag . . . two days in a
of work, Claimant's pain kept him from enjoying the use
of his "WaveRunner" at the lake with his children.
Claimant used to attend hockey games, but he went only once
after the work injury due to the steps that he had to climb
to reach his seat and the "tight compact position"
of the seats. Claimant took prescription pain medicine at
least twice a day in addition to over-the-counter pain
medicine. On some days, he would elevate his leg and
"put ice on it."
also "sought psychiatric treatment" from his
"primary care physician's office" after
"[i]t had been pointed out to [him] that [he] had
changed and was very irritable." His prescribed
antidepressants "worked really well for" about
"five or six months and then [he] started getting
depressed again." The antidepressant dosage was
increased, and this "worked out well for awhile[,
]" but he eventually "fell back in the same
thing." The dosage was then "increased . . . to the
highest dose possible[.]" At that level, Claimant was
"holding [his] own[, ]" but he thought that, based
upon his past experience with the need to increase ...