Opinion
No. ED 81712
May 6, 2003
Appeal from the Labor and Industrial Relations Commission.
Matthew J. Padberg, The Padberg Corrigan Law Firm, Mark A. Keersemaker, Jr., 1010 Market Street, Suite 650, St. Louis, MO, 63101, for respondent.
Brad L. McChesney, Valentine Rouse, 10733 Sunset Office Dr., Suite 410, St. Louis, MO, 63127, for appellant.
Michael T. Finneran, Assistant Attorney General, 720 Olive Street, Suite 2000, St. Louis, MO, 63101, for additional party.
In this workers' compensation case, employer, Big Boy Steel Erection, appeals from the final award of the Labor and Industrial Relations Commission (Commission) allowing compensation and modifying the award of the Administrative Law Judge (ALJ). The ALJ found that claimant, Larry Hampton, had sustained 25% permanent partial disability of the body as a whole referable to the low back, caused by an injury he sustained while working as an ironworker. The Commission modified the award and found permanent and total disability. Employer contends that the Commission erred in awarding permanent total disability benefits instead of permanent partial disability benefits because 1) the award was not supported by competent and substantial evidence in that claimant's physical condition did not establish the unavailability of jobs in the open labor market and 2) the award was against the overwhelming weight of the evidence in that there was expert evidence to support a finding that claimant was partially disabled and employable or that there was total disability, but it resulted from a combination of impairments. We affirm.
On Friday, January 9, 1998, claimant was working for employer as an ironworker. He slipped on a beam, fell, and then caught himself. He was in pain and could not continue working that day. He rested over the weekend and called his employer on the following Monday. His employer sent him to see Dr. Joseph Prusaczyk at Acute Care. Dr. Prusaczyk took x-rays, gave medication, sent claimant to physical therapy and scheduled an MRI. The MRI revealed that claimant was suffering from degenerative disc disease, multi-level disc bulge, and relative narrowing of the spinal canal.
Claimant asked his employer for additional medical treatment. Employer's insurer referred him to Dr. Peter Mirkin, a surgeon with a sub-specialty in spinal conditions, whom he saw on April 10, 1998. Dr. Mirkin concurred with the diagnosis of degenerative disc disease and recommended a trial of epidural steroids. Claimant saw Dr. Steven Granberg for these injections. Because claimant indicated a desire to continue working and thought he could do so safely, Dr. Mirkin released him to work without restriction. Dr. Mirkin continued to see claimant for treatment of his low back pain, and, in August, 1998, told him he was not to lift more than 50 lbs.
Claimant also saw his family physician, Dr. Dennis Larson, in May, June, and November, 1998, and complained of low back pain. In March, 1999, Dr. Larson referred claimant to a neurosurgical specialist, Dr. Carl Lauryssen. Claimant saw Dr. Lauryssen on April 6, 1999, and Dr. Lauryssen noted that claimant had continuing intractable and incapacitating pain. Dr. Lauryssen thought that surgical fusion would be appropriate treatment, but ordered a discogram to gain more information. After the discogram, Dr. Lauryssen recommended the fusion surgery.
On February 4, 1998, claimant filed a claim for compensation with the Division of Worker's Compensation for the January 9 back injury. The Administrative Law Judge heard the claim on November 13, 2001.
At the hearing, claimant testified that he never went back to work on "full duty" after the January 9, 1998 accident. Claimant did return to work on "light duty" as a supervisor until February 18, 1999. At the time of hearing, claimant was receiving a pension from the ironworker's union and social security disability. Claimant testified that there was not any kind of employment he could pursue on a full-time basis. Claimant elected not to have the fusion surgery because the surgery would not restore him to his former condition. Claimant testified that he felt his back pain was getting worse — he could not walk as far or sit as long — and that he was never pain free. He testified that he was currently taking prescription anti-inflammatory and pain medication. He testified that he could not have a sit-down job because his pain increases the longer he sits and that the only way to alleviate it is to lie down. He typically lies down three or four times a day, for an hour or longer each time.
Claimant also offered the depositions of Dr. Robert Margolis and Dr. Samuel Bernstein as well as all of his treatment records. Dr. Margolis, a neurologist, testified that he examined claimant on April 28, 2000. He found claimant to have pre-existent degenerative disc disease and to have suffered an injury from the January 9, 1998 accident. He testified that it was his belief that claimant's employment had "significantly contributed" to the development of degenerative disc disease. He concluded that claimant was 30% permanently and partially disabled; 25% from the January 9, 1998 injury and 5% from the pre-existing disc disease.
Dr. Bernstein, a vocational rehabilitation specialist with a Ph.D. in educational psychology, testified that he examined and evaluated claimant over a four-hour period on April 3, 2001. During the examination claimant was in pain, walked with a limp, and had difficulty getting in and out of his chair. He concluded that claimant was unemployable in the open labor market based on a variety of factors, including: age, obesity, degenerative disease of the spine, and hypertension. He testified that claimant's main problem was the degenerative joint disease that impeded claimant's ability to lift even relatively low amounts of weight (10-15 lbs.), to sit, stand, or walk for prolonged periods, or to engage in repetitive bending, stooping, balancing, or climbing.
Employer offered a letter from Dr. Mirkin and the depositions of Dr. Mirkin and Karen Kane, which were admitted. Dr. Mirkin testified that the degenerative disc disease was not attributable to claimant's activities at work and claimant had suffered no permanent partial disability that was attributable to work. He said that he did not believe that the evidence linking degenerative disc disease to heavy labor was "very firm" and that the three main factors contributing to disc disease were heredity, smoking, and age.
Karen Kane was a vocational consultant with a master's degree in education. Ms. Kane never personally evaluated or interviewed the claimant. She did not administer her own intelligence tests, but relied on those that Dr. Bernstein had conducted. She reviewed all the medical records and did a transferable skills analysis and labor market survey. While reviewing the medical records, she looked for physical restrictions placed on claimant and any type of medications claimant was taking. She used the Dictionary of Occupational Titles which is produced by the United States Department of Labor to perform her transferability analysis. She then contacted employers by phone to inquire about job openings, job responsibilities, and the possibility of on-the-job training. She did not inform the prospective employers about claimant's physical limitations and restrictions. Her conclusion was that claimant "would be able to seek, accept, be hired, and maintain full-time, gainful employment." She listed 10 jobs that she believed claimant would be suitable for, including car salesman, unarmed security guard, and Wal-Mart greeter.
The ALJ issued his award on February 11, 2002. The ALJ found 25% permanent partial disability of the body as a whole referable to the low back. The ALJ rejected a finding of total disability because he found Dr. Bernstein's opinion to be unpersuasive in that his reliance on claimant's subjective complaints was misplaced. Although he found claimant to be generally credible, the ALJ questioned the severity of claimant's complaints and his incentive to return to work. The ALJ also found there was no evidence that the January 9, 1998 injury, standing alone, had resulted in permanent and total disability.
On review the Commission found that claimant was permanently and totally disabled and entered a final award allowing compensation and modifying the award of the ALJ. The Commission found, contrary to the ALJ, that claimant was credible and that claimant's complaints, limitations, and pain were so limiting as to constitute total disability. The Commission found the nature of the injury to be severe and the subjective complaints and limitations to be in line with the objective findings on the condition of the back. It found claimant's decision to put off "massive surgery" for as long as possible to be completely reasonable. It concluded that the January 9, 1998 injury aggravated claimant's previously asymptomatic degenerative back problems resulting in total disability.
DISCUSSION
A. Standard of Review
The standards for judicial review of the Commission's award are set out in Mo. Const., Art. V, sec. 18 and Section 287.495.1 RSMo (2000). The statute provides:
The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its power;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.
Section 287.495.1 RSMo (2000). See Greenlee v. Dukes Plastering Service, 75 S.W.3d 273, 275 (Mo.banc 2002); Curry v. Ozarks Elec. Corp., 39 S.W.3d 494, 495 (Mo.banc 2001).
The substance of this statute antedates the constitutional standard of review of administrative decisions which first appeared in Article V, Section 22 of the 1945 Missouri Constitution and now is embodied in Article V, Section 18 of the Constitution. It requires that judicial review of final administrative decisions, which are judicial or quasi judicial and affect private rights, "shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record." Mo. Const, Art. V, sec. 18. This constitutional provision "makes this broader review the minimum standard which may be established for review in any case decided on a hearing before an administrative officer or body." Wood v. Wagner Electric Corporation, 197 S.W.2d 647, 649 (Mo.banc 1946). This minimum standard is mandatory and requires no legislation to put it into effect.Id.
This constitutional mandate does not allow us to substitute our own judgment on the evidence for that of the administrative tribunal. Id. But, the Missouri Supreme Court has declared that it does authorize us "to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence." Id. Accordingly, we may overturn an award "only if it is not supported by substantial evidence or when it is clearly contrary to the overwhelming weight of the evidence." Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364, 366 (Mo.banc 1987). We must "determine from the record as a whole whether the Commission could reasonably have made its findings and award reviewing the record in the light most favorable to the findings of the Commission." Id.
When reviewing the sufficiency of the evidence, the Court is limited to determining whether the Commission's award is supported by competent and substantial evidence on the whole record. The evidence and inferences are reviewed in the light most favorable to the award, and the Commission's findings will be set aside only when they are clearly contrary to the overwhelming weight of the evidence.
Akers v. Warson Garden Apartments, 961 S.W.2d 50, 53 (Mo.banc 1998) (internal citations omitted). See also Curry, 39 S.W.3d at 496.
Accordingly, if decisions are based on determinations of fact, we consider the evidence in the light most favorable to the Commission's findings. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo.banc 1991). We must consider all reasonable inferences from the evidence and disregard all opposing and unfavorable evidence. Pulitzer Pub. Co. v. Labor Ind. Relations, 596 S.W.2d 413, 417 (Mo.banc 1980). If the evidence before the Commission would warrant either of two opposite findings, we are bound by the administrative determination, and it is irrelevant that evidence supports a contrary finding. Id.; Bd. of Ed., Mt. Vernon Schools, etc. v. Shank, 542 S.W.2d 779, 782 (Mo.banc 1976). In addition, we defer to the Commission on issues involving the credibility of witnesses and the weight to be given their testimony. Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo.banc 1995); Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo.banc 1993); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307 (Mo. 1970).
When courts speak of the "weight of the evidence," they mean its weight in probative value, not the quantity or amount thereof. O'Shea v. Pattison-McGrath Dental Supplies, 352 Mo. 855, 864, 180 S.W.2d 19, 23 (1944); Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App. 1975); Fountain v. Schlanker, 651 S.W.2d 594, 595 (Mo.App. 1983). Weight is not determined by mathematics, but by its effect in inducing belief. Brooks, 527 S.W.2d at 53; Fountain, 651 S.W.2d at 596. When an administrative tribunal "weighs" evidence, it essentially determines what evidence is credible. It "may disregard evidence which in its judgment is not credible, even though there is no countervailing evidence to dispute or contradict it" and "may disbelieve evidence although it is uncontradicted and unimpeached." State ex rel. Rice v. Public Service Commission, 220 S.W.2d 61, 65 (Mo.banc 1949).
Because we must defer to the Commission on matters of weight and credibility, we do not and may not engage in the process that the Commission undertakes to weigh evidence and determine credibility. Rather, as a matter of law, we pass on the matter of substance and not on credibility. Rice, 220 S.W.2d at 65. "Substantial evidence" is "evidence which, if true, would have a probative force upon the issues" and "implies and comprehends competent, not incompetent, evidence." Id. at 64. Our power to set aside an award that is clearly contrary to the overwhelming weight of the evidence does not allow us to "reweigh" the evidence. Rather, it is a process whereby we determine as a matter of law whether the Commission could have reasonably made its findings and reached its result upon consideration of all of the evidence before it.Johnson, 735 S.W.2d at 366; Wood, 197 S.W.2d at 649. See also Dehatre v. Smith Nephew Equipment Group, 892 S.W.2d 369, 370 (Mo.App. 1995); Page v. Green, 758 S.W.2d 173, 175 (Mo.App. 1988); Kite v. Polsky Motors, Inc., 614 S.W.2d 294, 299-300 (Mo.App. 1981).
We note that the Southern District determined that the term "overwhelming weight of the evidence" had not been judicially defined and held that it was something more than the preponderance of the evidence. Vaughts v. Vaughts, Inc., 938 S.W.2d 931, 941-42 (Mo.App. 1997). The Western District has followed this holding. Degraffenreid v. RL Hannah Trucking Co., 80 S.W.3d 866, 881 (Mo.App. 2002). In the context of the Missouri Supreme Court cases interpreting Article V, Section 22, we do not find this definition helpful.
The situations in which an award has been reversed because against the weight of the evidence are very rare. In Seabaugh's Dependents v. Garver Lumber Mfg. Co., 200 S.W.2d 55, 62 (Mo.banc 1947), the court specifically considered and reversed an award under the standard of review as first formulated in Wood. It held that where the claimant's sole expert could only opine that death resulted from one of two causes and employer would not be liable for one of those causes, on the whole record claimant's proof was insufficient to reasonably show that the death resulted from a cause which the employer would be liable. Id. at 63. In Griggs v. A.B. Chance Company, 503 S.W.2d 697 (Mo.App. 1973), the court determined that testimony that gave rise to inconsistent inferences was not competent substantial evidence and reversed on that basis. Id. at 704-05. See also Eimer v. Bd. of Police Com'rs of Kan. City, 895 S.W.2d 117, 123 (Mo.App. 1995).
We specifically disagree with the conclusion in Davis v. Research Medical Center, 903 S.W.2d 557, 566 (Mo.App. 1995), that our power to reverse an award as against the overwhelming weight of the evidence requires us to examine the evidence contrary to the Commission's award to see if it "so clearly overwhelms" the evidence favoring the Commission's award, because such an exercise would cause us to invade the province of the Commission and "weigh" the evidence. Rather, we hold that Article V, Section 18 and the Supreme Court cases decided under it and its predecessor only require us to find whether the Commission could have reasonably made its findings and reached its result upon its consideration of all of the evidence before it. We examine the whole record to determine the issue of reasonableness, not to examine the amount of unfavorable evidence. As a result, points on appeal that contend that an award is "against the overwhelming weight of the evidence" simply because evidence that would support a different award is in the record do not present a reviewable issue.
B. Permanent Disability — Employability
For its first point employer asserts that the Commission erred in finding that claimant was permanently and totally disabled in that the decision was not supported by substantial and competent evidence establishing that claimant was unable to return to any job available to him in the open labor market. The Commission found claimant's complaints, limitations, and pain to be so limiting as to constitute permanent and total disability.
"Total disability" means the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." Section 287.020.7 RSMo (2000). "The test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment." Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 811 (Mo.App. 2000). "The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this employee in his or her present physical condition." Reese v. Gary Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App. 1999). Working very limited hours at a rudimentary task is not considered reasonable or normal employment. Grgic v. P G Const., 904 S.W.2d 464, 466 (Mo.App. 1995). Nor is it required that the claimant be completely inactive or inert. Brown v. Treasurer of Missouri, 795 S.W.2d 479, 483 (Mo.App. 1990).
The extent and percentage of disability sustained by an employee is a finding of fact within the special province of the Commission. Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502, 505 (Mo.App. 1989). The Commission's award is not solely dependent on medical evidence, rather its findings are to be judged on the basis of the evidence as a whole.Eimer, 895 S.W.2d at 120. The finding of disability may exceed the percentage to which the medical experts testified. Sellers, 776 S.W.2d at 505. The fact-finding body may reject the uncontradicted opinion of a vocational expert. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178-79 (Mo.App. 1995). In determining the percentage of disability, the Commission is not bound by the percentage estimates of medical experts, and it may consider all of the evidence, including the employee's testimony. Eimer, 895 S.W.2d at 120.
Although Dr. Margolis testified that claimant was 30% disabled, the Commission is not bound by the percentage of disability estimated by medical experts. Quinlan v. Incarnate Word Hosp., 714 S.W.2d 237, 238 (Mo.App. 1986). The impact of the injury upon the employee's ability to work involves considerations that are not exclusively medical in nature.Id. Thus, the extent and percentage of disability is a finding of fact that is within the special province of the Commission. Id. In order to determine total disability, the Commission had to determine if claimant was employable in the open labor market. This determination is not exclusively medical, and is a factual issue within the special province of the Commission. Id. Furthermore, the Commission may make a finding of disability that exceeds the percentage to which the medical experts testified. Id. See also McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284 (Mo.App. 1968).
The Commission found claimant credible. If found credible by the Commission, claimant's testimony about his or her ability to function and/or inability to continue working can constitute substantial and competent evidence to support the award even if the medical testimony indicates the employee could return to work. Jost v. Big Boys Steel Erection, Inc., 946 S.W.2d 777, 779 (Mo.App. 1997). Further, Dr. Bernstein also testified to claimant's inability to work because of his physical limitations. It was within the Commission's sole discretion to determine the weight to be given this expert opinion. Cahall v. Cahall, 963 S.W.2d 368, 371 (Mo.App. 1998).
Claimant's and Dr. Bernstein's testimony constitutes substantial and competent evidence that supports the Commission's finding that claimant was unable to return to any job in the open labor market. Point one is denied.
C. Permanent Disability — Contrary Expert Testimony
In its second point employer contends that the Commission's award of permanent total disability benefits was against the overwhelming weight of the evidence because Dr. Margolis and Dr. Mirkin found that claimant was partially disabled, Ms. Kane testified he was employable, and the Commission could not rely on Dr. Bernstein's testimony that claimant was totally disabled because the Commission did not disturb the ALJ's finding that Dr. Bernstein was unpersuasive.
We first address the argument about Dr. Bernstein. The ALJ found that Dr. Bernstein was unpersuasive because he relied too heavily on claimant's subjective complaints. The ALJ expressed doubt about claimant's credibility on his subjective complaints and questioned claimant's incentive and motivation to continue working. The Commission found claimant to be credible and found claimant's "subjective complaints, limitations, and description of his problems to be in line with the objective findings as to the condition of his back." It found claimant's attempt to return to work indicated a desire to return to work if possible. The Commission is entitled to make its own findings, as long as those findings are supported by the evidence. Faulkner v. Chrysler Corp., 924 S.W.2d 866, 867 (Mo.App. 1996). This is especially true on subjective matters such as disability ratings. Id.
The Commission explicitly disagreed with the ALJ's basis for finding Dr. Bernstein to be unpersuasive, because it found claimant credible. Further, the Commission adopted and incorporated the ALJ's award only to the extent it was not inconsistent with the modification. It therefore did not adopt the ALJ's finding that Dr. Bernstein was unpersuasive. In any event, the Commission did not mention Dr. Bernstein's opinion in its award, but explicitly based its assessment of total disability on the claimant's physical condition as evidenced by the medical records and claimant's complaints.
Dr. Bernstein and claimant testified that claimant was totally disabled. Reconciliation of conflicting evidence is a fact question for the Commission. We defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony.Johnson, 911 S.W.2d at 288. The Commission's decision to believe Dr. Bernstein and claimant and not Dr. Mirkin and Ms. Kane is well within its authority. Id.; Chatmon v. St. Charles County Ambulance, 55 S.W.3d 451, 457 (Mo.App. 2001). Further, there was objective medical evidence that supported claimant's testimony. On the whole record, the Commission could reasonably have found claimant to be totally disabled.
Employer's argument only challenges the Commission's weight and credibility determinations, which we do not disturb. The argument does not provide any basis for us to hold that the Commission could not have reasonably made its findings, and reach its result, upon consideration of all of the evidence before it and to overturn the award as against the overwhelming weight of the evidence. Point two is denied.
Conclusion
The Commission's award is affirmed.
The Second Injury Fund filed a brief in this case to respond to an argument contained under Point Two of employer's brief that might be interpreted as implying Second Injury Fund liability. However, employer did not assert in a point relied on that the Commission erred in denying Second Injury Fund liability. Accordingly, that issue has not been preserved for review.
Paul J. Simon, P.J. and Gary M. Gaertner, Sr., J. concur.