Danny Harris v. Ralls County, Missouri ( 2019 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
DANNY HARRIS, ) No. ED107606
)
Appellant, ) Labor and Industrial Relations
) Commission
vs. )
)
RALLS COUNTY, MISSOURI, )
)
Respondent. ) Filed: October 1, 2019
Introduction
Danny Harris (“Claimant”) appeals the Labor and Industrial Relations Commission’s (the
“Commission”) decision modifying the decision of the Administrative Law Judge (“ALJ”). The
ALJ awarded Claimant permanent total disability and future medical benefits because a work-
related accident was the prevailing factor in causing him to suffer injuries to his low back. In
modifying the ALJ’s decision, the Commission determined Claimant was not permanently and
totally disabled and instead found the work-related accident was the prevailing factor in causing
him to suffer a chronic back sprain or strain. Therefore, the Commission concluded Claimant
suffered only five percent permanent partial disability. The Commission also determined
Claimant was not entitled to future medical benefits.
On appeal, Claimant argues the Commission erred in modifying the ALJ’s award because
in doing so: it misstated the record and disregarded the findings of Claimant’s employer-
authorized treating physicians so its conclusion was against the overwhelming weight of the
evidence (Point I) and it rejected Missouri law that recognizes an asymptomatic, preexisting
condition can be compensable if a work accident aggravates it to a level of disability (Point II).
We find the Commission’s award concluding Claimant was not permanently and totally disabled
and Claimant was not entitled to future medical treatment is supported by sufficient competent
evidence. However, we find the Commission’s award determining medical causation and
concluding Claimant suffered only five percent permanent partial disability is not supported by
sufficient competent evidence. Accordingly, the award is affirmed in part and reversed and
modified in part.
Factual and Procedural Background1
Claimant began working for Ralls County (“Employer”) in July 2007 performing road
work, including driving a dump truck. On March 9, 2009, Claimant and a co-worker were told
to change a 350-pound tire and wheel assembly on a backhoe. They began by breaking the seal
on the tire away from the rim. After completing one side of the tire, Claimant stooped forward to
lift the tire and flip it over. As Claimant lifted the tire, he felt a painful sensation in his lower
1
As an initial matter, we note both Claimant’s and Employer’s statement of facts contain deficiencies that do not
comply with Rule 84.04. Compliance with Rule 84.04 briefing requirements is mandatory and “a party’s failure to
comply with those requirements constitutes grounds for our dismissal of the appeal.” Osthus v. Countrylane Woods
II Homeowners Ass’n, 389 S.W.3d 712, 714 (Mo. App. E.D. 2012) (internal quotations omitted). Failure to comply
with Rule 84.04 preserves nothing for appellate review. In Matter of Smith, 550 S.W.3d 541, 543 n.1 (Mo. App.
E.D. 2018) (internal quotations omitted).
Rule 84.04 specifically provides the appellant’s brief must contain “a fair and concise statement of the facts relevant
to the questions presented for determination without argument.” MO. SUP. CT. R. 84.04(c). If the respondent is
dissatisfied with the accuracy of the statement of facts in the appellant’s brief, the respondent’s brief may include a
statement of facts. MO. SUP. CT. R. 84.04(f). This Court has acknowledged “the primary purpose of the statement
of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case.” In re
Marriage of Shumpert, 144 S.W.3d 317, 320 (Mo. App. E.D. 2012). Interspersing argument throughout the
statement of facts violates Rule 84.04(c). Bethman v. Faith, 462 S.W.3d 895, 900 (Mo. App. E.D. 2015).
Claimant’s “Statement of Facts” improperly contains legal conclusions and arguments. Employer’s brief did not
contain a concise statement of the errors in Claimant’s statement of facts, thus leaving it to this Court to prepare its
own fair and concise statement of the facts.
2
back and legs, which he described as feeling like someone was “squishing a jelly donut” and
“stabbing [him] in the back with a knife.” Claimant finished his shift but could not complete any
of his duties and instead laid on a couch in a breakroom. Claimant drove himself home after his
shift ended.
The next day, Claimant drove himself to work and requested medical treatment. After a
few hours of work, he went to the emergency room. While in the emergency room, x-rays
showed spondylosis.2 He was prescribed some medicine and was told to follow up with his
primary physician. Claimant was thirty years old, and he experienced no low back pain or
radiculopathy in either leg before the 2009 work accident. Two days later, Claimant followed up
with Dr. R.W. Hevel, his primary physician. Dr. Hevel noted Claimant complained he was
experiencing low back pain, muscle spasms, and numbness and tingling in his right lower
extremity. Dr. Hevel diagnosed lumbar radiculopathy and ordered an MRI of Claimant’s spine
(“the March 2009 MRI”).
Claimant was referred to Dr. James Coyle, a neurosurgeon, for further authorized
treatment. In his initial evaluation of Claimant on March 23, 2009, Dr. Coyle reviewed the
March 2009 MRI and determined it showed “evidence of degenerative disc disease at L4-5 and
L5-S1 with central disc protrusions at both levels” and bilateral L5 spondylolysis.3 (emphasis
added). Dr. Coyle diagnosed lumbar disc herniations and prescribed physical therapy,
medication, and epidural steroid injections with restrictions of no lifting over ten pounds, no
repetitive bending, stooping, or twisting at the waist, and intermittent sitting, standing, and
walking. Dr. Coyle also recommended Claimant not drive dump trucks. Claimant received
2
“Spondylosis” is defined as “any of various degenerative diseases of the spine.” Spondylosis, Merriam-Webster
Online Dictionary, https://www.merriam-webster.com/medical/spondylosis (last visited Sept. 16, 2019).
3
“Spondylolysis” is defined as “disintegration or dissolution of a vertebra.” Spondylolysis, https://www.merriam-
webster.com/medical/spondylolysis (last visited Sept. 16, 2019).
3
epidural steroid injections from Dr. Gregory Smith. Upon his evaluation of Claimant, Dr. Smith
assessed lumbrosacral “radiculitis,” right S1 “radicular” pain, and L5-S1 spondylolysis without
listhesis. At his physical therapy sessions, Claimant was described as “a middle aged man who
presents today with acute onset of back pain after an injury at work while changing a tire on
machinery.” The therapists noted Claimant repeatedly did not give consistent effort during
strength testing, suggesting symptom magnification.
Dr. Coyle subsequently examined Claimant on April 20, 2009, and again on May 20,
2009. On May 20, 2009, Dr. Coyle noted Claimant complained of “back pain, right sided
buttock and posterior thigh pain, and dysesthesia radiating into his right foot.” Dr. Coyle again
reviewed the March 2009 MRI, this time concluding “[h]e has a central disc prolapse at L4-5.
He has isthmic spondylolisthesis at L5-S1 with a very small central disc protrusion.”4 Dr. Coyle
also noted Claimant had undergone three epidural steroid injections without relief. Dr. Coyle
recommended pain management and a rehabilitation program and advised against surgery,
stating surgery should be an “absolute last resort” because a “two level fusion” would not return
Claimant to his pre-injury state.
Dr. Coyle referred Claimant to Dr. Russell Cantrell, a physiatrist, who he saw on May 27,
2009. Dr. Cantrell noted Claimant presented with complaints suggestive of right L5
“radiculopathy.” Dr. Cantrell ordered an EMG study, which was conducted June 6, 2009. The
results of the EMG were normal; no electrodiagnostic evidence of lumbar radiculopathy was
detected. Dr. Cantrell also reviewed the March 2009 MRI and concluded it showed evidence of
“degenerative disc disease at the L4-5 and L5-S1 levels with broad based disc bulging at L5-S1
and a more focal central and paracentral disk protrusion at L5-S1 appearing to result in some
4
“Spondylolisthesis” is defined as “forward displacement of a lumbar vertebra on the one below it and especially of
the fifth lumbar vertebra on the sacrum producing pain by compression of nerve roots.” Spondylolisthesis,
https://www.merriam-webster.com/medical/spondylolisthesis (last visited Sept. 16, 2019).
4
compression of the descending S1 nerve root.” (emphasis added). Dr. Cantrell concurred in Dr.
Coyle’s opinion that Claimant was not a good surgical candidate. Dr. Cantrell prescribed
Claimant Tramadol and Prevacid to manage his pain.
On June 17, 2009, Dr. Cantrell released Claimant to return to work with the restriction he
not lift over ten pounds. Claimant returned to work for Employer that same day. Claimant said
he used leave to reduce the number of hours he drove so he did not consider himself to be
working a full time schedule. Claimant underwent a functional capacity evaluation on June 29,
2009. At the evaluation, Claimant lifted fifty-five pounds from floor to waist and seventy-five
pounds from both waist to shoulder and from shoulder to overhead. Claimant’s performance at
the evaluation reflected inconsistent effort and symptom magnification behaviors. The
evaluation found him able to return to safe function in the heavy work demand level but not the
employer-reported job demand level. The evaluation reflected Claimant was limited by his
decreased heavy load handling ability, his decreased tolerance to constant sitting, and his
moderate-to-high subjective pain reports.
Claimant saw Dr. Cantrell immediately following the functional capacity evaluation on
June 29, 2009, and again on July 21, 2009. Because of Claimant’s ongoing complaints, Dr.
Cantrell referred him for a lumbar myelogram and post-myelogram CT scan. According to Dr.
Cantrell, that scan showed mild spondylolisthesis of L5-S1, with associated spondylolysis, a
small left foraminal disc extrusion at L5-S1, circumferential disc bulging at L5-S1, small central
disc protrusions at L3-4, and a degenerative disk bulges at L3-4 and L4-5. (emphasis added).
Upon reviewing the results of the July 2009 lumbar myelogram and post-myelogram CT
scan, Dr. Cantrell rated Claimant’s permanent partial disability at eight percent of the body as a
whole referable to his low back, with one-half attributable to his work injury and one-half
5
attributable to preexisting degenerative and congenital abnormalities unrelated to his work
injury. On August 31, 2009, Dr. Cantrell placed Claimant at maximum medical improvement
and released him from care with a permanent restriction he not lift over fifty pounds and that his
dump truck driving be limited to one hour of sitting per run.5
On August 25, 2010, Claimant saw Dr. Coyle, claiming his symptoms remained
intolerable. Dr. Coyle continued to recommend against surgery, stating “a fusion at L5-S1 may
possibly result in very brief relief of symptoms and aggravate the pathology proximal to this.”
Dr. Coyle referred Claimant for a follow-up EMG to “see if there is any possibility that we can
help [Claimant] with a one-level anterior interbody arthrodesis alone.” On September 15, 2010,
Dr. Cantrell conducted the follow-up EMG study (“the September 2010 EMG”). The results
revealed “abnormalities of fibrillations and polyphasic motor unit potentials in the left
gastrocnemius and polyphasic motor unit potentials in the right gastrocnemius, both of which are
supplied by the S1 nerve root.” No radiculopathy at L4 or L5 was noted.
On October 27, 2010, Dr. Coyle reviewed the September 2010 EMG study’s results and
concluded they showed “S1 radiculopathy.” Dr. Coyle ordered a second MRI, which showed
“mild dessication at L4 and L5 with annular tears at each level, L4-L5 as generalized bulging
with focal and central and right paracentral disc protrusion with the same finding at L5-S1, with
the addition of an annular tear.” (emphasis added). He noted Claimant had an abnormally small
spinal canal and a congenital condition. Dr. Coyle found there was mild disc pathology but no
focal compressive pathology. Dr. Coyle continued to recommend against surgery, stating, “In
summary there is no good surgical solution for him, and he may be a mismatch for driving a
dump truck over time.” Dr. Coyle did not see Claimant again after October 27, 2010. In a letter
5
Claimant and Employer stipulate that Claimant was at maximum medical improvement as of August 31, 2009.
6
to Dr. Coyle dated November 15, 2010, Dr. Cantrell indicated that he planned to see Claimant
every six months, even though Claimant remained at MMI, to maintain Claimant’s medications.
Dr. Cantrell saw Claimant again on June 8, 2011, regarding a refill of his prescriptions.
In a letter to Dr. Coyle, Dr. Cantrell stated that, as of June 8, 2011, there was “no objective
evidence to support his subjective complaints of radiating pain into both lower extremities.”
However, in that same letter, Dr. Cantrell recounted that the March 2009 MRI scan of Claimant’s
lumbar spine “revealed a central and paracentral disc protrusion at the L5-S1 level that appeared
to result in some compression of the descending S1 nerve root.” He also stated that the July
2009 lumbar myelogram and post-myelogram CT scan “revealed evidence of spondylolisthesis
of L5 on S1, along with circumferential disc bulge and a small central disc protrusion at the L3-4
level, with degenerative disc bulge at L3-4 and L4-5.”
In a letter to Employer’s attorney dated June 17, 2011, Dr. Cantrell stated the September
2010 EMG study revealed findings consistent with “chronic bilateral S1 radiculopathy in the
absence of any L4 or L5 denervation and the absence of any peripheral polyneuropathy.”
(emphasis added). Dr. Cantrell further stated he believed the medications and relief symptoms
Claimant sought resulted from a degenerative process rather than the specific work injury
Claimant sustained on March 9, 2009.6 Dr. Cantrell opined the only basis to suggest Claimant’s
current and ongoing back pain complaints relate to his 2009 work accident was Claimant’s
“verbal history that prior to that date he was asymptomatic, and subsequent to that date, he
remained symptomatic.” He based his opinion, in part, on the June 2009 EMG study’s failure to
6
Dr. Cantrell had previously concluded the medication prescribed “for pain complaints would be half related to his
work injury and half related to pre-existing degenerative changes” after reviewing the results of Claimant’s lumbar
myelogram and post-myelogram CT scan administered in July 2009. The Commission found Dr. Cantrell reached
this final conclusion on June 17, 2011, after reviewing additional medical records from Claimant’s visits to Hannibal
Regional Hospital in January and April 2011.
7
reveal acute electrodiagnostic abnormalities suggesting an acute radiculopathy attributable to his
2009 work injury. He also opined that the September 2010 EMG study’s results seemed more
consistent with a progressive degenerative process in the lower lumbar spine rather than an acute
injury at the nerve root level.
Employer paid temporary total disability benefits to Claimant in the amount of $4,586.29
from March 9, 2009, through June 14, 2009, at a rate of $330.97 per week. Employer paid
medical aid to Claimant in the amount of $51,464.55.
Claimant continued working until March 25, 2011.7 On March 29, 2011, four days after
stopping work, Claimant saw Dr. Hevel because he was experiencing symptoms of depression.
Dr. Hevel noted Claimant’s depression “originate[d] from his back” and assessed Claimant as
having major depression as secondary to a history of chronic back pain. Dr. Hevel
recommended Claimant not work for one month and referred Claimant to see Dr. Jonathan
Colen, a psychiatrist.
From May until July 2011, Claimant saw Dr. Colen several times. During their May and
June 2011 sessions, Dr. Colen and Claimant discussed that Claimant was recently separated from
his wife and children. Claimant said his wife left him, took the children, and falsely reported to
the Missouri Department of Family Services he molested his eleven-year-old stepdaughter and
beat all of the children. Dr. Colen diagnosed Claimant with moderate single episode major
depression and prescribed medication. By July 7, 2011, Claimant reported to Dr. Colen that he
felt better and had experienced some improvement in his mood.
In addition to seeing Dr. Colen, Claimant saw therapist Sean Meyer in June 2011.
Claimant discussed his personal problems relating to his home life, the abuse allegations, and his
7
Claimant testified he stopped working on March 25, 2011, because he was “laid off.” However, Claimant was
later terminated by Employer in December 2011. It is not clear from the record why Claimant stopped working on
March 25, 2011.
8
pending divorce with Mr. Meyer. Mr. Meyer noted Claimant was not working due to his back
injury and felt frustrated by the pain and physical limitations placed on his work abilities. Mr.
Meyer diagnosed Claimant with adjustment disorder with anxiety and partner relational problem
and concluded the source of Claimant’s mental stress was the abuse allegations against him, his
marital problems, and the ongoing stress and uncertainty as to whether he would return to work
due to work-related injury.
On July 22, 2011, Claimant saw Dr. Hevel again for his depression. Dr. Hevel
recommended Claimant remain off work for three more months because of his recurring mood
swings and the added stress from his divorce. On August 30, 2011, Claimant was arrested,
charged with statutory sodomy of his stepdaughter, and taken into custody. Claimant remained
incarcerated from August 30, 2011, until he was released on bail on approximately August 15,
2013.8 After several months of absence from work, Claimant received a letter from Employer
stating he was terminated in December 2011.
Claimant filed a claim for workers’ compensation benefits for his back injury. Before
trial, Claimant dismissed his claim against the Second Injury Fund. On November 17, 2017, a
hearing was held before an ALJ. The parties asked the ALJ to determine (1) whether Claimant
sustained an injury arising out of and in the course of his employment; (2) medical causation
regarding Claimant’s low back injury; (3) whether Claimant was permanently and totally
disabled; and (4) whether Employer was responsible for future medical treatment to treat and
relieve the effects of Claimant’s low back injury.
At the hearing, Claimant testified about the circumstances of his 2009 work accident and
the physical pain he felt in his low back that continued to worsen. He testified he was no longer
8
There is no evidence in the record that Claimant was convicted of any crime. Claimant reports he was acquitted of
all charges.
9
depressed. He indicated he was using a cane while walking to support himself for two or three
years because he would fall for no reason.9 Claimant testified he goes to the emergency room
because of pain around twenty times per year.10
Claimant presented the deposition testimony of Dr. Thomas Musich, a family practice
medical doctor and independent medical examiner. Dr. Musich conducted an independent
medical examination of Claimant on June 5, 2013, at Claimant’s attorney’s request. He found
Claimant’s March 2009 MRI identified “a broad based disc bulge causing effacement of the
anterior thecal sac with associated hypertrophy at L4-5. At L5-S1 a central disc protrusion was
identified which abutted the S1 and S2 neural roots in the thecal sac. Suggestion of bilateral pars
defect was also identified.” He found Claimant suffered acute lumbar trauma from the 2009
work accident. He noted Claimant had no preexisting disability and found the 2009 work
accident was the prevailing factor in causing all Claimant’s persistent and ongoing low back pain
and radiculopathy.
Dr. Musich further opined that Claimant suffered depression secondary to the 2009 work
accident and chronic low back pain and may require psychiatric evaluation intermittently. Dr.
Musich noted Claimant had seen Dr. Colen for a psychiatric exam in May 2011, where he was
diagnosed with single episode major depressive disorder but was otherwise unaware of
Claimant’s personal struggles—that his wife left him, took his children, filed for divorce, and
accused him of statutory sodomy for which he was charged, arrested, and jailed for two years.
Dr. Musich embraced the treatment records and observations of Dr. Coyle and
recommended Claimant observe permanent work restrictions of not lifting over fifty pounds and
9
The record before us fails to show any doctor diagnosed issues with his gait or recommended any assisted walking
device.
10
No medical records associated with these visits are in evidence.
10
alternating sitting and standing.11 Dr. Musich’s conclusions were derived from the history
Claimant relayed to him and his own physical examination of Claimant. Dr. Musich reviewed
the reports of the other doctors who read the results of the diagnostic studies, but he did not
review those studies himself. Dr. Musich concluded if Claimant could not be placed in an
appropriate job setting through vocational rehabilitation, then Claimant was permanently and
totally disabled solely because of the 2009 work accident. Dr. Musich concluded if Claimant
could be placed, then Claimant suffered permanent partial disability of sixty-five percent of the
body as a whole secondary to acute, work related, symptomatic, low back pain and residual
bilateral lower extremity radiculopathy solely because of the 2009 work accident. Dr. Musich did
not prescribe or recommend medication.
Claimant also presented the deposition testimony of Mr. Gary Weimholt, a vocational
rehabilitation consultant. On July 19, 2013, Mr. Weimholt reviewed Claimant’s medical records
and interviewed Claimant. Mr. Weimholt noted Claimant was divorced. When his report was
made, Claimant’s visitation rights had not been solidified and Claimant mentioned he was having
money issues regarding supporting the children. Mr. Weimholt noted Claimant said he could not
continue to work for Employer because he became depressed and had continued pain from the
2009 work accident. Although Mr. Weimholt noted Claimant had seen Dr. Colen for a
psychiatric exam in May 2011, he did not know Claimant’s wife accused him of statutory
sodomy for which he was charged, arrested, and jailed for two years.
Mr. Weimholt noted he did not know of any medical records of low back treatment or
diagnoses preexisting the 2009 work accident. He further noted Dr. Coyle’s initial ten pound
lifting restriction and Dr. Cantrell’s permanent fifty pound lifting restriction. Mr. Weimholt
11
Dr. Musich added as a work restriction that Claimant should be given the opportunity to lie flat or in a recliner on
an as-needed basis to treat post-traumatic work-related low back pain and bilateral lower extremity radiculopathy.
11
concluded Claimant had no transferable skills and Claimant would need assistance completing a
GED diploma. In reaching his opinion, Mr. Weimholt also emphasized Claimant had never sent
an email, had no typing or keyboard training, and had never used a computer before in any of his
jobs. Based solely on the permanent work restrictions related to Claimant’s work injury to his
low back, Mr. Weimholt found Claimant was without access to the open labor market and totally
vocationally disabled from employment.
Employer presented the deposition testimony of Dr. Edwin Wolfgram, a psychiatrist. On
January 16, 2015, Dr. Wolfgram examined Claimant. Dr. Wolfgram noted Claimant’s personal
legal problems, including his divorce and the abuse allegations. Dr. Wolfgram noted Claimant
had an addictive personality because he smoked from one-half to one and one-half packs of
cigarettes per day from an early age and drank fifteen cups of coffee per day. Dr. Wolfgram
noted Mr. Meyer’s conclusion that the more likely cause of Claimant’s mental stress was that he
was involved in a dangerous marriage with a wife who had conspired with his stepdaughter to
charge him with child molestation. Dr. Wolfgram also noted that neither Dr. Musich nor Mr.
Weimholt knew of the personal struggles ongoing in Claimant’s life, including the fact Claimant
spent two years incarcerated. Dr. Wolfgram stated that the source of Claimant’s depression was
his marital and social problems and his addictive personality. Dr. Wolfgram concluded Claimant
suffered no psychiatric disability due to the injury he sustained on March 9, 2009, and the 2009
work accident was not the prevailing factor in causing his depression. Dr. Wolfgram further
concluded the use of pain medications to treat Claimant’s back pain was unnecessary and not
advisable, as pain medications that elevate mood should only treat injuries for a short period
because they “are highly addicting and dangerous to use for any chronic conditions.”
12
Employer also presented the deposition testimony of Dr. Robert Bernardi, a
neurosurgeon. Dr. Bernardi conducted an independent medical examination of Claimant at
Employer’s request on November 10, 2015. Dr. Bernardi diagnosed Claimant with congenital
lumbar stenosis, multi-level degenerative disk disease, L5-S1 isthmic spondylolisthesis, and low
back and bilateral leg pain of uncertain cause. Dr. Bernardi stated all of the diagnosed conditions
except the low back and bilateral leg pain were preexisting conditions to the 2009 work accident.
Dr. Bernardi opined Claimant was born with the congenital stenosis, the degenerative disc
disease is governed by genetic influences, and it is extremely unusual for spondylolisthesis to
become symptomatic in adulthood because of a singular traumatic event.12 Dr. Bernardi
concluded the 2009 work accident may have caused a strain or sprain in Claimant’s back, but
those symptoms should have resolved within four to six weeks. Dr. Bernardi concluded the
radiographic studies showed no acute injury and no objective findings explain Claimant’s
complaints.
Dr. Bernardi acknowledged Claimant’s lack of back pain before the 2009 work accident
suggested the 2009 work accident was the prevailing cause of his pain. But Dr. Bernardi
concluded the underlying condition causing the pain was not clearly identifiable from the
objective evidence available. Dr. Bernardi did not have a medical explanation for Claimant’s
back pain. Dr. Bernardi concluded the work accident caused Claimant to suffer permanent
partial disability of two percent of the body as a whole related to a chronic sprain or strain or
non-specific back pain. Dr. Bernardi stated he did not believe Claimant required any
prescription medication to cure and relieve him from the effects of the back injury caused by the
2009 work accident. According to Dr. Bernardi, Claimant required no restrictions.
12
Dr. Bernardi indicated that spondylolisthesis is developed most commonly by athletic people during childhood,
not by adults as a result of trauma.
13
Dr. Bernardi’s summary of Dr. Coyle’s May 20, 2009, notes did not include Dr. Coyle’s
positive findings of dysesthesias into the anterior thighs and calves plus diffuse tingling in both
feet or of “herniations” at L4-5 and L5-S1. Dr. Bernardi reviewed the September 2010 EMG
results and concluded “polyphasic motor unit potentials were present in both gastrocnemii
suggestive of chronic S1 radiculopathy.” (emphasis added). Dr. Bernardi reviewed the July
2009 lumbar myelogram and post-myelogram CT scan and concluded there was presence of
degenerative disc disease at both L3-4 and L4-5 manifested by central disc bulging and posterior
spur formation. Dr. Bernardi reviewed the October 2010 MRI and reached the same conclusion.
On cross-examination, Dr. Bernardi disagreed with Dr. Coyle’s conclusion that Claimant
showed symptoms of radicular pain. Although Dr. Bernardi acknowledged Dr. Hevel’s note of
radiating pain just two days after the 2009 work accident, he disagreed about whether that
demonstrated actual “radicular” pain. He stated radicular pain occurs for several reasons besides
a “pinched nerve in the back” but gave no opinion as to what caused Claimant’s leg pain. Dr.
Bernardi admitted that “disk herniations are by definition acute.” Dr. Bernardi also agreed that,
in the younger population, disk herniations and acute disk prolapses are the most common cause
of radiculopathy.
Employer also presented the deposition testimony of James England, a vocational
rehabilitation counselor. On January 19, 2016, Mr. England reviewed Claimant’s medical
records and Mr. Weimholt’s rehabilitation report and testing. Mr. England summarized the
heavy lifts recorded at Claimant’s functional capacity evaluation conducted on June 29, 2010.
Mr. England noted the restrictions imposed by Dr. Coyle, which included medium work activity
with frequent positional changes every hour, and Dr. Cantrell’s recommended permanent lifting
restriction of fifty pounds. He also noted Dr. Bernardi did not recommend any restrictions and
14
agreed Dr. Bernardi’s opinions were “inconsistent” with the other doctors’ findings. Mr.
England concluded Claimant had transferable skills for service writing for general mechanics
and equipment operation. He found, assuming the restrictions of Drs. Coyle and Cantrell, there
were many jobs at the medium demand level in the open market that Claimant could perform,
such as cashier, security positions, cab driver, courier, and others. Mr. England noted through
review of achievement test results that Claimant had the apparent ability to complete the
preparation and requirements for a GED diploma, but he had made no efforts to pursue it. Mr.
England concluded Claimant was capable of returning to work in the open labor market and was
not totally and permanently disabled.
The ALJ concluded: (1) On March 9, 2009, Claimant sustained a work-related accident
arising out of and in the course of his employment; (2) Claimant’s low back injury was medically
causally related to the 2009 work accident; (3) Claimant was permanently and totally disabled;
and (4) Employer was responsible for future medical treatment to cure and relieve the effects of
Claimant’s work injury. In his findings and conclusions, the ALJ specifically found Claimant’s
testimony he never had low back pain or treatment before the 2009 work accident credible. The
ALJ determined Dr. Coyle’s initial diagnosis of lumbar disc herniations with a history of a work-
related accident also proved consistent with Claimant’s treatment record and patient history.
Largely because it paralleled Dr. Coyle’s diagnosis and treatment plan, the ALJ also specifically
found Dr. Musich’s testimony “more convincing” than Dr. Bernardi’s. In so finding, the ALJ
reasoned that Dr. Musich’s opinions were traceable to the objective findings in the treatment
records and tests and were consistent with Claimant’s credible testimony.
The ALJ supported his conclusion that the 2009 work accident caused Claimant to be
permanently and totally disabled, despite any of his preexisting asymptomatic degenerative
15
conditions, by citing Weinbauer v. Grey Eagle Distributors, 661 S.W.2d 652, 654 (Mo. App.
E.D. 1983), which held “[a]n inherent weakness or bodily defect, such as spondylolisthesis,
occurring in conjunction with an abnormal strain . . . will support a claim for compensation.”
Finally, because “Dr. Musich, and to a lesser extent Dr. Cantrell’s plan to follow up with
Claimant every six months to monitor his medication, each credibly endorse[d] Claimant’s need
for ongoing medication,” the ALJ determined Claimant was entitled to future medical benefits.
Employer applied for review with the Commission, challenging the ALJ’s determinations
regarding medical causation, the nature and extent of Claimant’s disability, and Employer’s
responsibility for providing future medical benefits.
On review, a majority of the Commission found Claimant was neither permanently and
totally disabled nor entitled to any future medical treatment. Accordingly, the Commission
entered a final award modifying the ALJ’s award to reflect that Claimant suffered five percent
permanent partial disability to his body as a whole referable to the low back and that Claimant
was not entitled to any future medical benefits.
The Commission concluded Claimant sustained a work-related accident on March 9,
2009, that arose out of and in the course of his employment because he suffered an “unusual
strain” producing objective symptoms of an injury during his shift at work. The Commission
further concluded that because only “some of the symptoms” Claimant experienced resulted
from the 2009 work accident, the 2009 work accident was the prevailing factor causing Claimant
to suffer only a chronic back sprain or strain. The Commission did not find the 2009 work
accident was the prevailing factor causing either Claimant’s degenerative and congenital
conditions to worsen or Claimant’s depression for which he was briefly treated in 2011.
16
The Commission refused to rely on Weinbauer, as the ALJ had, in reaching its conclusion
as to the level of Claimant’s disability. The Commission declined to follow Weinbauer because
Weinbauer was decided before the 2005 amendments to § 287.020.2,13 and after the 2005
amendments, a condition is not compensable if work was a precipitating or triggering factor.
In deciding Claimant’s case, the Commission found the medical opinions of Drs.
Bernardi, Coyle, and Cantrell were “more persuasive” than the opinion offered by Dr. Musich.
The Commission stated that Drs. “Bernardi, Coyle, and Cantrell consistently conclude[d] the
majority of [Claimant’s] symptoms are from degenerative and congenital conditions, objectively
identified through testing.” The Commission further found Mr. England’s vocational
rehabilitation opinion was “more persuasive” than Mr. Weimholt’s.
The Commission concluded Claimant did not need additional medical treatment resulting
from his back injury, as derived strictly from the back sprain. The Commission found credible
the medical findings of Drs. Bernardi, Wolfgram, and Cantrell, who opined the pain medications
prescribed were for treatment of degenerative conditions rather than any acute or chronic
residual pain from the back strain or that the pain medications were unnecessary or advisable.
The Commission also found that because Claimant had not proven his depression resulted from
the 2009 work accident, no future medical treatment was needed.
Commissioner Curtis E. Chick, Jr. filed a separate opinion, concurring in part and
dissenting in part with the majority’s opinion. Commissioner Chick agreed with all
determinations adopted by the majority, including that Claimant did not prove permanent total
disability. However, Commissioner Chick would have found Claimant suffered ten percent
permanent partial disability rather than five percent, as found by the majority.
Claimant appeals the Commission’s decision.
13
All references are to RSMo Cum. Supp. (2013) unless otherwise indicated.
17
Standard of Review
The Missouri Constitution, article V, section 18 (amended 1976)14 and § 287.495 govern
appeals of the Commission’s decision. Kolar v. First Student, Inc., 470 S.W.3d 770, 774 (Mo.
App. E.D. 2015). Section 287.495.1 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 powers;
(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.
§ 287.495.1; See also Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012).
The Commission’s factual findings are binding and conclusive only to the extent they are
supported by sufficient competent evidence and were reached in the absence of fraud. Archer v.
City of Cameron, 460 S.W.3d 370, 374 (Mo. App. W.D. 2015) (citing Coday v. Div. of Emp’t
Sec., 423 S.W.3d 775, 778 (Mo. banc 2014)). In reviewing the Commission’s decision, we view
the evidence objectively and are not required to “view the evidence and all reasonable inferences
drawn therefrom in the light most favorable to the award.” Wilson v. Progressive Waste Sols. of
Missouri, Inc., 515 S.W.3d 804, 807 (Mo. App. E.D. 2017) (quoting Hampton v. Big Boy Steel
14
MO. CONST. art. V, § 18 states, in relevant part:
All final decisions, rules and orders on any administrative officer or body existing under the
constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be
subject to direct review by the courts as provided by law; and such review 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.
18
Erection, 121 S.W.3d 220, 223 (Mo banc. 2003)). Instead, “[w]e examine the evidence in the
context of the whole record when determining whether the award is supported by competent and
sufficient evidence. An award that is contrary to the overwhelming weight of the evidence is, in
context, not supported by competent and substantial evidence.”15 Greer v. SYSCO Food Servs.,
475 S.W.3d 655, 664 (Mo. banc 2015) (quoting Hampton, 121 S.W.3d at 223).
This Court must determine whether the Commission reasonably could have made its
findings and reached its result based upon all the evidence before it. Porter v. RPCS, Inc., 402
S.W.3d 161, 171 (Mo. App. S.D. 2013) (quoting Fitzwater v. Dep’t of Public Safety, 198 S.W.3d
623, 627 (Mo. App. W.D. 2006)). In doing so, this Court is not bound by the Commission’s
conclusions of law or application of law to the facts. Patterson v. Cent. Freight Lines, 452
S.W.3d 759, 764 (Mo. App. E.D. 2015) (citing Grubbs v. Treasurer of Missouri as Custodian of
Second Injury Fund, 298 S.W.3d 907, 910 (Mo. App. E.D. 2010)).
15
In Hampton v. Big Boy Steel Erection, the Supreme Court of Missouri recognized “[t]he constitutional standard
(‘supported by competent and substantial evidence upon the whole record’) is in harmony with the statutory
standard (‘sufficient competent evidence in the record’).” 121 S.W.3d 220, 222 (Mo. banc 2003). For clarity in this
opinion, we use “sufficient competent evidence,” unless quoting from another authority. For a detailed history of
this standard of review, see Davis v. Research Med. Ctr., 903 S.W.2d 557 (Mo. App. W.D. 1995).
19
Discussion16
Point One
In his first point relied on, Claimant asserts “the Commission erred in reducing the ALJ’s
award, because its conclusion was against the overwhelming weight of the evidence, in that the
Commission misstated the record before it while disregarding the findings and conclusions of the
Employer’s treating physicians.”
Against the Overwhelming Weight of the Evidence Challenge
Employer argues Claimant has not raised a recognizable challenge this Court may
consider. Employer urges the appellate courts do not “have authority to countermand an award
of the Commission as against the overwhelming weight of the evidence,” citing the Southern
District’s opinion in Nichols v. Belleview R-III School District, 528 S.W.3d 918 (Mo. App. S.D.
2017) as authority for its argument. Employer cites to the following language in a footnote of
the Nichols decision to convince this Court of its position: “In the wake of Hampton, the against-
the-overwhelming-weight-of-the-evidence challenge has been subsumed by the sufficient-
competent-evidence challenge; the only challenge now contemplated by § 287.495.1(4) is not
supported by sufficient competent evidence in the record.” Id. at 928 n.17. However,
Employer’s reliance on Nichols is misplaced. Since the Nichols decision in 2017, the Southern
16
We note that none of Claimant’s points relied on comply with Rule 84.04(d)(2) or follow the format set out in that
rule. Under Rule 84.04(d)(2), where the appellate court reviews the decision of an administrative agency, each point
shall be in “substantially the following form:”
The [name of agency] erred in [identify the challenged ruling or action], because [state the legal
reasons for the claim of reversible error, including the reference to the applicable statute
authorizing review], in that [explain why, in the context of the case, the legal reasons support the
claim of reversible error].
Each point fails to reference the applicable statute authorizing review or explain why, in the context of the case,
legal reasons support its claim of reversible error. Although these violations constitute grounds for dismissal, it is
within this Court’s discretion to consider the claims if the briefing deficiencies are not so serious as to impede
appellate review. Bolt v. Giordano, 310 S.W.3d 237, 242 (Mo. App. E.D. 2010). Therefore, we exercise our
discretion ex gratia to review Claimant’s assertions.
20
District has continued to recognize that challenging the Commission’s award as not supported by
sufficient competent evidence is synonymous with challenging the Commission’s award as
against the overwhelming weight of the evidence. See Robinson v. Loxcreen Co., Inc., 571
S.W.3d 247, 249 (Mo. App. S.D. 2019); Farmer v. Treasurer of Missouri as Custodian of the
Second Injury Fund, 567 S.W.3d 228, 231 (Mo. App. S.D. 2018); Elsworth v. Wayne Cty., 547
S.W.3d 599, 601 (Mo. App. S.D. 2018). The Southern District’s recitation of the standard of
review applicable to § 287.495.1 challenges aligns with Supreme Court of Missouri precedent.17
Accordingly, we conclude Claimant brings a recognizable challenge.
Permanent Total Disability
Claimant argues the Commission’s determination he is not permanently and totally
disabled because no objective evidence exists showing radiculopathy or an acute injury
stemming from the 2009 work accident is against the overwhelming weight of the evidence.
Because of this alleged error, Claimant argues the Commission improperly modified the ALJ’s
award of permanent total disability to just five percent permanent partial disability.
Total disability is defined as 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.” § 287.020.6. “An employee is permanently and totally disabled if no employer in the
17
See Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. banc 2015) (“Whether the award is supported by
competent and substantial evidence is judged by examining the evidence in the context of the whole record. An
award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and
substantial evidence.”); Malam v. State, Dep’t of Corr., 492 S.W.3d 926, 928 (Mo. banc 2016) (“[T]he court must
sill ‘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.’”); Johme v. St. John’s
Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. banc 2012) (“The whole record is considered to determine if there is
sufficient competent and substantial evidence to support the Commission’s award. An award that is contrary to the
overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.”); Miller
v. Missouri Highway & Transp. Comm’n, 287 S.W.3d 671, 672 (Mo. banc 2009) (“A court must 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. Whether the award is supported by competent
and substantial evidence is judged by examining the evidence in the context of the whole record.”).
21
usual course of business would reasonably be expected to employ the employee in his or her
present physical condition.” Pennewell v. Hannibal Reg’l Hosp., 390 S.W.3d 919, 924-25 (Mo.
App. E.D. 2013) (citing Clark v. Harts Auto Repair, 274 S.W.3d 612, 616 (Mo. App. W.D.
2009)). The burden is on the claimant to establish he is permanently and totally disabled. Id.
Whether a Claimant is permanently and totally disabled is a factual question, not a legal
question. Archer v. City of Cameron, 460 S.W.3d 370, 376 (Mo. App. W.D. 2015) (citing Rader
v. Werner Enters., Inc., 460 S.W.3d 370, 375 (Mo. App. E.D. 2012)). Generally, we must defer
to the Commission’s factual findings. Thornton v. Haas Bakery, 858 S.W.2d 831, 833 (Mo.
App. E.D. 1993), overruled on other grounds by Hampton, 121 S.W.3d 220. However, when
those findings are not supported by sufficient competent evidence, no deference is required.
Archer, 460 S.W.3d at 376.
Because Claimant brings a weight of the evidence challenge, he triggers a specific
analytical process whereby he must:
1. Identify a factual proposition needed to sustain the result;
2. Marshal all record evidence supporting that proposition;
3. Marshal contrary evidence of record, subject to the factfinder’s credibility
determinations, explicit or implicit; and
4. Prove, in light of the whole record, that the step 2 evidence and its reasonable
inferences are so non-probative that no reasonable mind could believe the
proposition.
Jordan v. USF Holland Motor Freight, Inc., 383 S.W.3d 93, 95 (Mo. App. S.D. 2012).
Here, Claimant identified the factual proposition as whether Claimant suffered
radiculopathy and an acute injury because of the 2009 work accident. Claimant then identified
the supporting evidence for that position while juxtaposing it against what he perceived to be the
22
contrary evidence. Claimant contends the evidence the Commission relied on was not probative
given the radiographic and electrodiagnostic evidence in the record.
Claimant points to several factual findings of the Commission he argues are not
supported by the record: (1) the objective evidence did not support Dr. Musich’s opinion that all
Claimant’s symptoms could be attributed to his 2009 work accident; (2) the objective evidence
supported Dr. Cantrell’s opinion that no objective findings explain Claimant’s complaints of
radiating pain in both of his lower extremities; and (3) Dr. Bernardi’s and Dr. Coyle’s findings
and conclusions were consistent. Claimant contends these findings by the Commission were not
supported by sufficient competent evidence to warrant reducing the ALJ’s award to only five
percent permanent partial disability because the weight of the objective evidence demonstrated
Claimant suffered radiculopathy and an acute injury stemming from the 2009 work accident.
The Commission found the objective evidence did not show an identifiable source of the
radicular symptoms into the legs of which Claimant complained. The Commission supported
this finding by reasoning that neither Dr. Coyle nor Dr. Cantrell used the term “acute” to
describe Claimant’s injury and that no doctor identified a specific condition from the imaging
studies which could directly be traced to the 2009 work accident as the prevailing factor. Then,
the Commission found Drs. Bernardi, Coyle, and Cantrell consistently concluded the “majority”
of Claimant’s symptoms are from degenerative and congenital conditions and that their opinions
were more persuasive than the opinion of Dr. Musich. The Commission criticized Dr. Musich’s
opinion that all Claimant’s back pain is attributable to the 2009 work accident as having been
reached “without giving due consideration to the objective medical findings.”
In reaching its conclusion, the Commission noted Dr. Cantrell initially rated Claimant’s
disability in July 2009 at eight percent of the body as a whole referable to his low back, with
23
one-half attributable to the work injury and one-half attributable to preexisting degenerative and
congenital conditions unrelated to the 2009 work accident. The Commission also noted Dr.
Cantrell’s final opinion, expressed in letters to Dr. Coyle and Employer’s attorney in June 2011,
was that none of the objective evidence showed Claimant suffered acute trauma because of the
2009 work accident.
Because the Commission concluded the objective findings did not show Claimant
suffered an acute injury at the time of the 2009 work accident, it found Claimant’s continuing
reports of pain well after treatment had ended and maximum medical improvement was attained
supported the conclusion that “his pain (at least in part) is derived from a degenerative or
congenital condition.” The Commission also noted Claimant’s June 2009 functional capacity
evaluation found him capable of returning to work with limitations. The Commission concluded
Mr. England’s vocational rehabilitation evaluation, which found Claimant capable of returning to
the open labor market, more persuasive than Mr. Weimholt’s. The Commission found that
radiculopathy was not identified in the objective findings until “long after the March 9, 2009
workplace event.”
We find the Commission’s determination that Claimant has not proven permanent total
disability is supported by sufficient competent evidence. Sufficient competent evidence is
“evidence which has probative force on the issues and from which the trier of facts can
reasonably decide the case.” Morris v. Glenridge Children’s Ctr., Inc., 436 S.W.3d 732, 735
(Mo. App. E.D. 2014) (quoting Miller v. Great S. Bank, 367 S.W.3d 111, 118 (Mo. App. S.D.
2012)). Sufficient competent evidence is a minimum threshold: “The testimony of one witness,
even if contradicted by the testimony of other witnesses, may be sufficient competent evidence
24
to support an administrative decision.” Thompson v. Treasurer of Missouri, 545 S.W.3d 890,
893 (Mo. App. E.D. 2018) (citing Morris, 436 S.W.3d at 735).
The Commission determined Claimant failed to prove permanent total disability because
Claimant’s functional capacity evaluation found him capable of returning to work with
limitations. It also considered Dr. Musich’s opinion of Claimant’s level of disability, which
depended on a vocational rehabilitation counselor’s ability to place Claimant in an appropriate
job setting. The Commission acknowledged there were competing vocational rehabilitation
expert opinions. Mr. England opined Claimant was not permanently and totally disabled, while
Mr. Weimholt opined Claimant was permanently and totally disabled. After considering both
opinions, the Commission found Mr. England’s opinion “more persuasive” than Mr. Weimholt’s
opinion. It was within the Commission’s right to make such a finding, as acceptance or rejection
of evidence is an issue for the Commission to determine. Houston v. Roadway Express, Inc., 133
S.W.3d 173, 179 (Mo. App. S.D. 2004) (internal citation omitted). The Commission’s
conclusion that Claimant failed to prove permanent total disability rests on evidence from which
it could make a reasonable decision.
However, the Commission’s finding that the objective evidence failed to show Claimant
suffered radiculopathy and an acute injury because of the 2009 work accident and Claimant is
therefore only entitled to five percent permanent partial disability is against the overwhelming
weight of the evidence. The electrodiagnostic and radiographic findings from March 2009 make
it clear Claimant suffered radiculopathy and an acute post-traumatic injury stemming from the
2009 work accident. Dr. Coyle reviewed Claimant’s March 2009 MRI and found it showed
evidence of a degenerative disc disease at L4-5 and L5-S1 with central disc protrusions at both
levels and bilateral L5 spondylolysis. After reviewing the March 2009 MRI, Dr. Coyle
25
diagnosed Claimant with lumbar disc herniations. On May 20, 2009, Dr. Coyle made positive
findings of dysesthesias into the anterior thighs and calves plus diffuse tingling in both of
Claimant’s feet. On that same date, Dr. Coyle reviewed Claimant’s March 2009 MRI again, this
time concluding “[h]e has a central disc prolapse at L4-5.”
Dr. Musich also concluded Claimant had a central disc protrusion present at L5-S1. Dr.
Cantrell similarly found Claimant’s March 2009 MRI “revealed a central and paracentral disc
protrusion at the L5-S1 level that appeared to result in some compression of the descending S1
nerve root.” He also found Claimant’s July 2009 lumbar myelogram and post-myelogram CT
scan “revealed evidence of spondylolisthesis of L5 on S1, along with circumferential disc bulge
and a small central disc protrusion at the L3-4 level, with degenerative disc bulge at L3-4 and
L4-5.” Both Dr. Coyle and Dr. Cantrell found the September 2010 EMG study’s results showed
evidence of S1 radiculopathy. Dr. Coyle found the October 2010 MRI scan showed “mild
dessication at L4 and L5 with annular tears at each level, L4-L5 as generalized bulging with
focal and central and right paracentral disc protrusion with the same finding at L5-S1, with the
addition of an annular tear.” In addition, all doctors agreed there are no records showing
Claimant experienced any back pain before the 2009 work accident.
On cross-examination, Dr. Bernardi admitted that disk herniations are, by definition,
acute. Dr. Bernardi also admitted that, in in the younger population, disk herniations and acute
disk prolapses are the most common cause of radiculopathy and that it is less than five percent
likely that a thirty-year-old person, like Claimant, would experience radicular pain caused by
degenerative disc disease. Despite these admissions and despite Dr. Coyle’s and Dr. Cantrell’s
treatment notes and observations, Dr. Bernardi concluded there were no acute abnormalities
present on Claimant’s imaging studies. Dr. Bernardi conceded there were no records in evidence
26
suggesting Claimant experienced back pain before March 9, 2009. While he acknowledged
Claimant’s history of never having back pain before the 2009 work accident suggested the 2009
work accident was the prevailing cause of Claimant’s pain, he nevertheless concluded the
underlying cause of the pain was not clearly identifiable from the objective evidence available.
Although he did not have a medical explanation for Claimant’s back pain, Dr. Bernardi
concluded Claimant’s September 2010 EMG study’s results showed “chronic S1 radiculopathy,”
a year and a half after Claimant sustained his work injury. (emphasis added).
After reviewing the lumbar myelogram and post-myelogram CT scan in July 2009, Dr.
Cantrell rated Claimant’s permanent partial disability at eight percent of the body as a whole
referable to his low back, with one-half attributable to his work injury and one-half attributable
to his preexisting degenerative and congenital abnormalities unrelated to his work injury. 18
Then, in letters to Dr. Coyle and Employer’s attorney in June 2011, Dr. Cantrell changed his
opinion, concluding that none of the objective evidence showed Claimant suffered acute trauma
because of the 2009 work accident. According to the Commission, Dr. Cantrell’s sudden change
in opinion resulted from his “review of additional medical records in which [Claimant] had
sought medication for pain from other providers, after his last visit with Dr. Cantrell.” No
explanation of how these additional records influenced Dr. Cantrell’s opinion is provided in
either Dr. Cantrell’s June 2011 letter or in the Commission’s decision.
18
Employer was asked at oral argument what sufficient competent evidence supported Dr. Cantrell’s conclusion that
Claimant’s preexisting degenerative condition was “disabling” when the record is devoid of evidence regarding
prior low back injury, prior treatment for a low back condition, prior complaints of low back pain, or any prior lost
time from work or activity limitations attributable to the low back. Employer did not identify any such substantial
competent evidence in response. In § 287.190.3, the legislature defines unscheduled permanent partial disabilities as
those injuries causing “loss of use” and “loss of earning power.” While not essential to our conclusions and
holdings herein, we fail to see any support in the record for Dr. Cantrell’s opinion Claimant had preexisting
disability.
27
In his letter to Employer’s attorney, Dr. Cantrell stated the September 2010 EMG study
revealed findings consistent with “chronic bilateral S1 radiculopathy in the absence of any L4 or
L5 denervation and the absence of any peripheral polyneuropathy.” (emphasis added). He did
not describe the results of the September 2010 EMG study as “chronic” before June 17, 2011; he
initially described the results of the September 2010 EMG study as revealing “abnormalities of
fibrillations and polyphasic motor unit potentials in the left gastrocnemius and polyphasic motor
unit potentials in the right gastrocnemius, both of which are supplied by the S1 nerve root.” This
evidence, plus the total absence of evidence that Claimant suffered any preexisting low back
injury, experienced any symptoms of back pain, or underwent any treatment for back pain before
March 9, 2009, overcomes the Commission’s finding that Claimant suffered no acute injury or
radiculopathy related to the 2009 work accident.
We are further troubled by the Commission’s finding that Dr. Coyle’s opinions are
consistent with Dr. Bernardi’s opinions. We find such a determination supports our holding that
the Commission’s legal conclusion that Claimant suffered five percent permanent partial
disability is against the overwhelming weight of the evidence. Dr. Coyle and Dr. Bernardi
disagree on several points within the record. During Claimant’s initial visit with Dr. Coyle in
March 2009, Dr. Coyle diagnosed lumbar herniations. However, during his deposition, Dr.
Bernardi stated he did not believe Claimant had herniations and instead diagnosed him with a
lumbar strain or sprain that should have resolved within four to six weeks. While Dr. Coyle
repeatedly noted the objective evidence showed Claimant suffered from radiculopathy, Dr.
Bernardi found no radiculopathy. Further, Dr. Coyle identified a disc prolapse at L4-5 in
Claimant’s March 2009 MRI. Although Dr. Bernardi agreed acute disc prolapses are the most
common cause of radiculopathy, he found neither present in Claimant’s scans.
28
Generally, “[w]e defer to the Commission’s findings as to weight and credibility of
testimony and are bound by its factual determinations.” ABB Power T&D Co. v. Kemper, 236
S.W.3d 43, 49 (Mo. App. W.D. 2007) (quoting Higgins v. Quaker Oats Co., 183 S.W.3d 264,
271 (Mo. App. W.D. 2005)). However, the evidence that Claimant suffered radiculopathy and
an acute injury because of the 2009 work accident is overwhelming on the record before us. The
extent and percentage of a claimant’s disability must be determined after considering all the
evidence and all the reasonable inferences from that evidence. Fogelsong v. Banquet Foods
Corp., 526 S.W.2d 886, 892 (Mo. App. 1975). When, after considering all the evidence, this
Court determines the disability rating made by the Commission is not supported by sufficient
competent evidence, this Court may modify the rating. See § 287.495.1; Blair v. Assoc.
Wholesale Grocers, Inc., 593 S.W.2d 650, 655 (Mo. App. S.D. 1980), overruled on other
grounds by Hampton, 121 S.W.3d 220.
As explained in the preceding paragraphs, there is an overpowering amount of contrary
objective evidence suggesting Claimant suffered radiculopathy and an acute injury because of
the 2009 work accident. That Dr. Coyle and Dr. Cantrell never used the precise term “acute” to
describe Claimant’s injury does not convince us otherwise. Further, we find that, given the
entire record, the Commission could not have reasonably found that Dr. Coyle’s opinions are
consistent with Dr. Bernardi’s opinions. The evidence before the Commission does not
reasonably support its conclusion that no objective evidence showed Claimant suffered an acute
injury and radiculopathy. This Court holds, based on the evidence, the permanent partial
disability rating of five percent of the body as a whole referable to Claimant’s low back as made
by the Commission is not supported by sufficient competent evidence and the rating should be
29
increased to twenty percent.19 Accordingly, the Commission’s rating of permanent partial
disability is reversed and modified.
Future Medical Treatment
As part of his first point relied on, Claimant seems to argue the Commission erred in
denying Claimant future medical treatment related to his back injury and depression. In its
decision, the Commission both (1) limited Claimant’s recovery to five percent permanent partial
disability and (2) denied Claimant relief for future medical treatment. However, it is unclear
from Claimant’s argument whether he challenges the award’s reduction of his level of disability
to five percent or the award’s denial of future medical treatment. This Court will not speculate
on arguments not made because “to do so would cast the court in the role of an advocate for the
appellant.” Martin v. Div. of Emp’t Sec., 384 S.W.3d 378, 384 (Mo. App. E.D. 2012) (citing
Hankins v. Reliance Auto., Inc., 312 S.W.3d 491, 494 (Mo. App. E.D. 2010) (internal quotations
omitted)). To the extent Claimant intended to challenge the Commission’s denial of future
medical treatment in his first point relied on, we find he violated Rule 84.04 by joining his
contention with his discussion of permanent total disability rather than stating it in a separate
point. MO. SUP. CT. R. 84.04(e). See DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 502
(Mo. App. E.D. 2013). Improper points relied on, including multifarious points, preserve
nothing for appellate review. Martin v. Reed, 147 S.W.3d 860, 863 (Mo. App. S.D. 2004).
We further note Claimant, on future medical treatment, fails to follow the four-step
sequence for challenging the Commission’s award as against the overwhelming weight of the
evidence as announced in Jordan. See Jordan v. USF Holland Motor Freight, Inc., 383 S.W.3d
93, 95 (Mo. App. S.D. 2012). At no point does Claimant clearly identify any factual proposition
19
The parties stipulated to the rate of $330.97 for permanent partial disability. Twenty percent of the body as a
whole is $26,477.60 (.20 x 400 = 80; 80 x 330.97 = 26,477.60).
30
necessary to support the Commission’s award relating to future medical benefits, marshal any
evidence, and prove that any evidence supporting the Commission’s award is so non-probative
that no reasonable mind could believe the result the Commission reached. Adherence to this
framework is mandatory—the “absence of any such criteria, even without a court-formulated
sequence, dooms an appellant’s challenge.” Robinson v. Loxcreen Co., Inc., 571 S.W.3d 247,
251 (Mo. App. S.D. 2019) (internal quotation omitted). Therefore, both because Claimant failed
to properly present this argument in his point relied on and because Claimant failed to follow the
four-step sequence outlined in Jordan, any possible challenge to the Commission’s denial of
future medical treatment fails.
However, had Claimant properly raised this issue on appeal, sufficient competent
evidence exists in the record to support the Commission’s decision denying Claimant future
medical treatment. Once a compensable injury is found, § 287.140.1 provides an employer must
provide such care “as may reasonably be required after the injury or disability, to cure and
relieve from the effects of the injury,” including the cost of future medical treatment.
§ 287.140.1; Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 518 (Mo. App. W.D. 2011). An
employer may not be ordered to provide future medical treatment for non-work related injuries.
Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 270 (Mo. App. S.D. 2004). An employer is
responsible for future medical benefits only if the claimant establishes there is a “reasonable
probability that, because of [his or] her work-related injury, future medical treatment will be
necessary.” Tillotson, 347 S.W.3d at 524-25 (quoting Stevens v. Citizens Mem’l Healthcare
Found., 244 S.W.3d 234, 237 (Mo. App. S.D. 2008)).
The Commission found Claimant failed to prove he is entitled to future medical treatment
for either his back injury or depression. The Commission noted no future medical treatment was
31
ordered to treat Claimant’s depression because he did not prove his depression resulted from the
2009 work accident.20 The Commission found credible and adopted the findings of Drs.
Cantrell, Bernardi, and Wolfgram. Dr. Cantrell opined the pain medications prescribed to
Claimant were for treatment of degenerative conditions rather than any acute or chronic residual
pain resulting from the 2009 work accident. Dr. Bernardi opined that Claimant required no pain
medications. Dr. Wolfgram opined there was “no basis” for Claimant to take pain medication, as
pain medications that elevate mood should only treat injuries for a short period because they “are
highly addicting and dangerous to use for any chronic conditions.” The Commission also found
neither Dr. Coyle nor Dr. Cantrell stated Claimant will need additional medical treatment due to
his back injury resulting from the 2009 work accident and Dr. Musich did not prescribe or
recommend medication. This Court defers to the Commission’s factual findings and credibility
determinations unless they are not supported by sufficient competent evidence. McDowell v.
Missouri Dep’t of Transp., 529 S.W.3d 898, 901, 905 (Mo. App. E.D. 2017); Coday v. Div. of
Employment Sec., 423 S.W.3d 775, 778 (Mo. banc 2014). The Commission’s denial of future
medical treatment is clearly supported by sufficient competent evidence. Accordingly, we find
the Commission did not err.
Point II
In his second point relied on, Claimant asserts “the Commission erred in reducing the
ALJ’s award because it applied the incorrect legal standard when it ignored and rejected
Missouri authority recognizing an aggravation of a pre-existing but non-disabling condition can
be compensable if a job-related injury escalates the condition to a disability.”
20
We note Claimant did not advance any arguments in his first point relied on challenging the Commission’s
finding that the 2009 work accident was not the prevailing factor in causing Claimant’s depression. Further,
Claimant specifically waived the issue at oral argument.
32
Medical Causation
To support his award of permanent total disability, the ALJ cited Weinbauer v. Grey
Eagle Distributors, 661 S.W.2d 652, 654 (Mo. App. E.D. 1983) for the principle that “[a]n
inherent weakness or bodily defect, such as spondylolisthesis, occurring in conjunction with an
abnormal strain . . . will support a claim for compensation.” On review, the Commission noted
Weinbauer was decided before the 2005 amendments to § 287.020 and it did not rely on
Weinbauer as the ALJ did. The Commission declined to follow Weinbauer, asserting, after the
2005 amendments, § 287.020.2 states a condition is not compensable if work was merely a
precipitating or triggering factor. According to the Commission, given the 2005 amendments,
Claimant’s 2009 work accident could be the prevailing factor causing him to suffer only a
chronic back sprain or strain.
Claimant argues it is settled law—under both pre-2005 and post-2005 workers’
compensation law—that a claimant can be compensated when a work injury aggravates an
asymptomatic, preexisting condition, provided the requisite statutory standard of causation is
met. Claimant maintains the Commission’s reduction of the ALJ’s award from permanent total
disability to only five percent permanent partial disability on that basis was erroneous.
It should first be noted that the requirement that a condition is not compensable if work
was merely a precipitating or triggering factor is longstanding and predates the 2005
amendments. See § 287.020.2 RSMo (1993) (“An injury is not compensable merely because
work was a triggering or precipitating factor.”); see also § 287.020.2 RSMo (2005) (“An injury
is not compensable because work was a triggering or precipitating factor.”). Therefore, the
Commission’s statement that the 2005 amendments changed the law regarding whether work
may be a precipitating or triggering factor in causing a condition is incorrect.
33
We further find the Commission’s statement insinuating Weinbauer is no longer good
law exceeds the scope of its authority. “[A]n administrative tribunal is a creature of statute and
exercises only that authority invested by legislative enactment.” Thomas v. Treasurer of State of
Missouri-Custodian of Second Injury Fund, 326 S.W.3d 876, 879 (Mo. App. W.D. 2010)
(quoting Farmer v. Barlow Truck Lines, Inc., 979 S.W.2d 169, 170 (Mo. banc 1998)). The
extent of the statutory authority afforded the Commission is described in § 286.060. State ex rel.
ISP Minerals, Inc. v. Labor & Indus. Relations Comm’n, 465 S.W.3d 471, 473 (Mo. banc 2015).
Section 286.060.1(3) provides “[i]t shall be the duty of the labor and industrial relations
commission, and it shall have power, jurisdiction and authority . . . [t]o have all powers, duties
and responsibilities conferred or imposed upon it by the workers’ compensation law (chapter
287) . . . .” It is true the Commission “may exercise quasi-judicial powers that are incidental and
necessary to the proper discharge of their administrative functions, even though by doing so they
at times determine questions of a purely legal nature.’” Wilkendon P’ship v. St. Louis Cty. Bd. of
Equalization, 497 S.W.3d 873, 878 (Mo. App. E.D. 2016) (quoting State Tax Comm’n v. Admin.
Hearing Comm’n, 641 S.W.2d 69, 75 (Mo. banc 1982)). However, just as our Court cannot
ignore precedent created by the Supreme Court of Missouri or the Supreme Court of the United
States in reaching our decisions, the Commission cannot ignore precedent created by our Court
in reaching its decisions. See Chavez v. Cedar Fair, LP, 450 S.W.3d 291, 298 (Mo. banc 2014)
(internal quotations omitted) (“It is the duty of all inferior courts . . . to follow the decision of the
Supreme Court en banc.”); Kraus v. Bd. of Ed. of City of Jennings, 492 S.W.2d 783, 784-85 (Mo.
1973) (internal quotations omitted) (“State court judges in Missouri are bound by the ‘supreme
law of the land,’ as declared by the Supreme Court of the United States . . . . The Supreme Court
of the United States has appellate jurisdiction over federal questions arising either in state or
34
federal proceedings, and by reason of the supremacy clause the decisions of that court on
national law have binding effect on all lower courts whether state or federal.”).
Missouri courts have long held a claimant can be compensated when a work injury
aggravates a preexisting condition to the level of disability, provided he or she proves the
requisite statutory standard of causation.21 See Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo.
App. E.D. 1994), overruled on other grounds by Hampton, 121 S.W.3d 220; George v. City of St.
Louis, 162 S.W.3d 26, 32 (Mo. App. E.D. 2005). The aggravation of a preexisting condition or
its symptoms may constitute a sufficient change in pathology to qualify for compensation, even
though workers’ compensation law requires more than a simple aggravation of a preexisting
condition. See George, 162 S.W.3d at 32; Winsor v. Lee Johnson Const. Co., 950 S.W.2d 504,
509 (Mo. App. W.D. 1997), overruled on other grounds by Hampton, 121 S.W.3d 220; Randolph
Cty. v. Moore-Ransdell, 446 S.W.3d 699, 710 (Mo. App. W.D. 2014).
Several cases applying post-2005 law have reached a similar holding. See Dierks v. Kraft
Foods, 471 S.W.3d 726, 734 (Mo. App. W.D. 2015) (“It is well-established law that a
preexisting but non-disabling condition does not bar recovery of compensation if a job-related
injury causes the condition to escalate to the level of disability”); Maness v. City of De Soto, 421
S.W.3d 532, 540 (Mo. App. E.D. 2014) (finding the Commission’s conclusion that “the work
accident was the prevailing factor causing the resulting [disc herniation], as well as the
aggravation of the underlying and previously asymptomatic degenerative disc disease and
degenerative joint disease at C4-5 and C5-6” was supported by sufficient competent evidence).
21
Prior to the 2005 amendments to workers’ compensation law, a claimant needed to prove only that the work
accident was “a substantial factor” in causing the resulting medical condition and disability. § 287.020.3(1) RSMo
(1993). After the 2005 amendments took effect, a claimant must prove that the work accident was “the prevailing
factor” in causing the resulting medical condition and disability. § 287.020.3(1) (2005); Miller v. Missouri Highway
& Transp. Comm’n, 287 S.W.3d 671, 673 (Mo. banc 2009). “‘The prevailing factor’ is defined to be the primary
factor, in relation to any other factor, causing both the resulting medical condition and disability.” § 287.020.3(1).
35
Thus, a work accident may be the prevailing factor in causing an injury sustained due to the
aggravation of preexisting, asymptomatic degenerative condition. It was error for the
Commission to find to the contrary.
Conclusion
Viewing the award objectively and examining the evidence in the context of the whole
record, we affirm the Commission’s award as to the finding that Claimant is not entitled to future
medical treatment. Similarly, we affirm the Commission’s finding that Claimant is not
permanently and totally disabled. Because we find the Commission’s award determining
medical causation and rating Claimant as suffering five percent permanent partial disability is
not supported by sufficient competent evidence, as it is against the overwhelming weight of the
evidence, we reverse the Commission’s award as to those findings and modify the Commission’s
rating of disability to twenty percent.
_______________________________
Philip M. Hess, Presiding Judge
Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.
36