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Hogenmiller v. Mississippi Lime Co.

Court of Appeals of Missouri, Eastern District, Third Division

May 7, 2019

DAVID HOGENMILLER, Respondent,
v.
MISSISSIPPI LIME COMPANY, Appellant.

          Labor and Industrial Relations Commission 13-104480.

          OPINION

          James M. Dowd, Judge.

         Mississippi Lime Company ("Employer") appeals the decision of the Labor and Industrial Relations Commission (the "Commission") awarding David Hogenmiller workers' compensation benefits based on a finding that Hogenmiller sustained a five-percent permanent partial disability of the body as a whole as a direct result of work-related tinnitus. Employer contends that the Commission erred by finding that Hogenmiller's expert, Dr. David Mason, an audiologist with a Ph.D. in hearing science, was qualified to testify regarding the nature, extent, and cause of Hogenmiller's tinnitus. Finding no error, we affirm.

         Factual and Procedural Background

         Employer owns and operates a manufacturing plant where Hogenmiller worked for 41 years. Hogenmiller testified that he worked around loud machinery for over 20 years at the plant and for many years he was required to wear hearing protection due to workplace noise. Hogenmiller, who had military experience, testified that he would not have been able to hear an M14 rifle discharge over the sound of the machinery he worked around. Also, he testified that the motorcycles he owned and rode were quieter than the noise at the plant.

         In his workers' compensation claim, Hogenmiller asserted that he suffers from tinnitus as a result of his work for Employer. The Administrative Law Judge ("ALJ") received testimony from Hogenmiller's expert Dr. Mason and Employer's expert Dr. Mikulec, a medical doctor with a specialization in otolaryngology. Dr. Mason testified that Hogenmiller suffered a five-percent permanent partial disability of the body as a whole as a direct result of his work-related tinnitus. Dr. Mikulec testified that Hogenmiller suffered no disability related to his employment and that Hogenmiller's tinnitus was caused by aging, not his exposure to noise at the plant. Employer objected as to the admissibility of Dr. Mason's testimony, claiming Dr. Mason was unqualified to offer expert testimony on the nature, extent, and cause of Hogenmiller's tinnitus.

         The ALJ overruled Employer's objections and found Dr. Mason's testimony to be admissible and credible and awarded Hogenmiller benefits representing five-percent of the body as a whole. The Commission affirmed the ALJ's award. This appeal follows.

         Standard of Review

         Our standard for reviewing decisions of the Commission in workers' compensation cases is found in Article V, § 18 of the Missouri Constitution and § 287.495.1[1] . According to Article V, § 18, we review whether the Commission's decision is "authorized by law" and "whether it is supported by competent and substantial evidence upon the whole record." Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 509 (Mo.banc 2012) (citing the constitutional provision). Section 287.495.1, for its part, directs us to review only questions of law, and provides that we may modify, reverse, remand for rehearing, or set aside the Commission's award only upon the following grounds: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Johme, 366 S.W.3dat 509 (citing § 287.495.1).

         In the absence of fraud, the Commission's findings of fact are conclusive and binding. Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo.banc 2015) (citing § 287.495.1). We defer to the Commission's determinations with regard to witness credibility and the weight accorded to conflicting evidence. Id., But we review issues of law de novo and accord no deference to the Commission's interpretation of the law. Id.

         Decisions that are clearly interpretations of law, rather than determinations of fact, are reviewed by us for correctness without deference to the Commission's judgment. McGhee v. W.R. Grace & Co., 312 S.W.3d 447, 451 (Mo.App.S.D. 2010). We also treat as a legal issue subject to de novo review fact findings reached through the application of the law, rather than by natural reasoning based on facts alone. Id.

         Discussion

         In its sole point on appeal, Employer contends that the Commission erred by allowing Dr. Mason to testify regarding the nature, extent, and cause of Hogenmiller's tinnitus. Specifically, Employer argues that because Dr. Mason did not review any medical records, and because his opinion that Hogenmiller suffered from work-related tinnitus was based solely on Hogenmiller's subjective reports, Dr. Mason lacked any superior knowledge regarding the relevant subject matter that might assist the trier of fact and thus his testimony was inadmissible under § 490.065. Employer also claims that Dr. Mason's report was inadmissible because it was not based on reliable data as required by § 490.065.1.

         1. Applicable principles of Missouri law regarding ...


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