Larry Hampton, Respondent, v. Big Boy Steel Erection, Appellant, Liberty Mutual Insurance Company, Insurer, Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Larry Hampton, Respondent, v. Big Boy Steel Erection, Appellant, Liberty Mutual Insurance Company, Insurer, Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party. Case Number: SC85456 Handdown Date: 12/09/2003 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Bradley L. McChesney Counsel for Respondent: Matthew J. Padberg, Mark A. Keersmaker, Jr., Lee B. Schaefer and Michael T. Finneran Opinion Summary: Larry Hampton slipped on a beam and fell while working as an ironworker for Big Boy Steel Erection, injuring his back. He was diagnosed with degenerative disc disease, multilevel disc bulge and relative narrowing of the spinal canal. Although medical specialists and other experts disagreed about the extent of physical disability attributable to Hampton's work, Hampton sought workers' compensation benefits for his back injury. At a hearing before an administrative law judge, Hampton testified he never went back to work on full duty but did work briefly, on light duty, as a supervisor. He testified that he never is free from pain, despite medication, and that he only can stand or sit for short intervals. The administrative law judge found that Hampton had sustained only a 25-percent permanent partial disability due to the workplace injury. Hampton sought review from the labor and industrial relations commission, which concluded that the workplace injury aggravated Hampton's previously asymptomatic degenerative back problems. The commission modified the administrative law judge's award, found that Hampton was permanently and totally disabled, and entered a final award allowing compensation accordingly. Big Boy Steel appeals.

AFFIRMED. Court en banc holds: (1) There is nothing in the standards of review contained in section 287.495.1, RSMo, or in the state constitution that requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. To the extent numerous appellate decisions (listed in the appendix to the opinion) hold otherwise, they are overruled. The reviewing court should make a single determination of whether, considering the whole record, there is sufficient competent and substantial evidence to support the award. (2) Despite the differing testimony of three experts as to the severity of Hampton's limitations, the commission's award is not contrary to the overwhelming weight of the evidence and, therefore, is supported by competent and substantial evidence on the whole record. A claimant's credible testimony as to work-related functioning can constitute competent and substantial evidence. The commission found fully credible Hampton's testimony that he must lie down or recline for several hours a day, a limitation that would prevent full-time employment. The medical evidence of Hampton's severe impairment supports his allegations. The record as a whole establishes that Hampton suffers from severe degenerative disc disease and that the impairment arose from the workplace accident. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: AFFIRMED. All concur. Opinion: In this workers' compensation case, Big Boy Steel Erection (employer) 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 Larry Hampton (claimant) had sustained a 25% permanent partial disability of the body as a whole, caused by an injury he sustained to his back while working as an ironworker. The commission modified the award and found permanent and total disability. The employer appeals, contending that the commission erred in awarding permanent total

disability benefits because the award was not supported by competent and substantial evidence and the award was against the overwhelming weight of the evidence. After opinion by the Court of Appeals, Eastern District, the case was transferred to this Court. Mo. Const. art. V, section 10 . The commission's award is affirmed. Background The claimant was injured while working for the employer as an ironworker. He slipped on a beam and fell. An MRI revealed degenerative disc disease, multi-level disc bulge and relative narrowing of the spinal canal. Dr. Mirkin, a surgeon with a sub-specialty in spinal conditions, treated the claimant and diagnosed degenerative disc disease. Dr. Mirkin released the claimant to work without restriction but eventually told him not to lift more than 50 pounds. He later concluded that the degenerative disc disease was not attributable to the claimant's activities at work and the claimant had suffered no permanent partial disability that was attributable to work. Dr. Lauryssen, a neurosurgical specialist, examined the claimant and found that the claimant had continuing intractable incapacitating pain and recommended a surgical fusion. Dr. Margolis, a neurologist, examined the claimant and found pre-existing degenerative disc disease and that the claimant suffered an injury in the workplace accident. Dr. Margolis noted that the claimant's employment had "significantly contributed" to the development of degenerative disc disease. He concluded that the claimant was 30% permanently and partially disabled, 25% from the workplace injury and 5% from the pre-existing disc disease. Dr. Bernstein, a vocational rehabilitation specialist with a Ph.D. in educational psychology, examined the claimant. He found that the claimant would have difficulty lifting even relatively low amounts of weight (10-15 pounds), sitting, standing, or walking for prolonged periods, or engaging in repetitive bending, stooping, balancing or climbing. He concluded that the claimant was unemployable in the open labor market based on his age, lack of transferable skills, and physical limitations caused by obesity, degenerative disease of the spine and hypertension. Karen Kane, a vocational consultant with a master's degree in education, reviewed the record

without personally interviewing the claimant. She did a transferable skills analysis and labor market survey. She relied upon the Dictionary of Occupational Titles and contacted prospective employers. She did not consider the claimant's claims that he could not lift more than 10 to 15 pounds and could not stand or sit for more than a short period of time. Her conclusion was that the claimant "would be able to seek, accept, be hired, and maintain full-time, gainful employment." The claimant filed a claim for workers' compensation benefits for the back injury. At the hearing before the ALJ, the claimant testified that he never went back to work on full duty, but did work briefly on light duty as a supervisor. He testified that he is never pain free despite medication. He typically lies down or reclines for hours each day. He testified that he can sit for "about an hour," can be on his feet for only a "half hour or so," and could not combine sitting, standing or walking to work a normal day. He testified that he could not lift more than a gallon of milk. The ALJ awarded 25% permanent partial disability. Although he found the claimant to be generally credible, the ALJ questioned the severity of the claimant's complaints and his incentive to return to work. The ALJ rejected a finding of total disability because he found Dr. Bernstein's conclusion unpersuasive as too reliant on the claimant's subjective complaints. The ALJ also found there was no evidence that the workplace injury, standing alone, had resulted in permanent and total disability. On review the commission found the 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 the claimant was fully credible. The commission found the nature of the injury to be severe and the claimant's subjective complaints in line with the objective medical findings. It concluded that the workplace injury aggravated the claimant's previously asymptomatic degenerative back problems resulting in total disability. Standard of Review The Missouri constitution, article V, section 18 provides for judicial review of the commission's award to determine whether the award is "supported by competent and substantial evidence upon the whole record." Section 287.495.1 of the Missouri statutes further indicates that a "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."(FN1) The 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"). 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. Wood v. Wagner Electric Corp. , 197 S.W.2d 647, 649 (Mo. 1946).(FN2) 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. There is nothing in the constitution or section 287.495.1 that requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. To the extent holding otherwise, the cases listed in the appendix are overruled. Once this inference drops out, there is no need to divide the examination of the record into two steps, as the court of appeals directed in Davis. (FN3) The two Davis steps can be merged into a single determination whether, considering the whole record, there is sufficient competent and substantial evidence to support the award. This standard would not be met in the rare case when the award is contrary to the overwhelming weight of the evidence. Argument The employer argues that the commission's award was not supported by sufficient competent and substantial evidence, because the nature of the claimant's injury and the claimant's complaints of pain and limitations in range of motion did not establish the unavailability of jobs in the open labor market. The

employer argues that the claimant's allegations alone cannot establish the unavailability of jobs in the open labor market. The employer further argues that Dr. Bernstein's conclusions were not sufficient to determine that the claimant was totally disabled due to the workplace injury alone. The employer points to the evidence from Dr. Margolis, Dr. Mirkin and Ms. Kane (who reached conclusions contrary to the commission's award), and argues that the commission's award is against the overwhelming weight of the evidence. The commission found the claimant's testimony fully credible. Therefore, the commission found credible the claimant's testimony that he must lie down or recline for several hours during the day - a limitation that would prevent full time employment. As was found by the commission, the claimant's allegations are supported by the medical evidence of his severe impairment. A claimant's credible testimony as to work-related functioning can constitute competent and substantial evidence. Jost v. Big Boys Steel Erection, Inc. , 946 S.W.2d 777, 779 (Mo. App. 1997). By finding the claimant fully credible, the commission credited Dr. Bernstein's conclusions. Considering the claimant's limitations, his advanced age and his lack of transferable skills, Dr. Bernstein concluded that there would be no available jobs in the open labor market. The commission reviewed the record and found that the claimant had been working at a job involving routine daily heavy lifting for years without symptoms of a back impairment. Following the accident, the claimant became unable to perform basic physical activity. The record as a whole establishes that the claimant suffers from severe degenerative disc disease and that the impairment arose from the workplace accident. The commission relied upon sufficient competent and substantial evidence. Therefore, despite the differing evidence from Dr. Margolis, Dr. Mirkin and Ms. Kane as to the severity of the claimant's limitations, the commission's award is not contrary to the overwhelming weight of the evidence and thus is supported by competent and substantial evidence on the whole record. Mo. Const. art. V, section 18. The commission's award is affirmed. All concur. Footnotes:

FN1. All statutory references are to RSMo 2000. FN2. For a thoroughly researched history of this standard of review, see Davis v. Research Medical Center, 903 S.W.2d 557 (Mo. App. 1995). FN3. The Davis court stated the standard of review as follows: First, the reviewing court examines the record, together with all reasonable inferences to be drawn from the evidence therein, in the light most favorable to the findings and award of the Commission to determine whether they are supported by competent and substantial evidence. If so, the reviewing court must then determine whether the Commission's findings and award, even if supported by some competent substantial evidence, were nevertheless clearly contrary to the overwhelming weight of the evidence contained in the whole record before the Commission. .... In other words, the factual findings and resulting award of the Commission should be set aside on appeal if they are not supported by competent and substantial evidence or, even if supported by such evidence, if they are clearly contrary to the overwhelming weight of the evidence. Otherwise, the Commission's award is to be affirmed. Davis v. Research Medical Center, 903 S.W.2d at 565 (citations omitted). Appendix Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003); Messersmith v. University of Missouri-Columbia/Mt. Vernon Rehabilitation Center, 43 S.W.3d 829 (Mo. banc 2001); Curry v. Ozarks Elec. Corp., 39 S.W.3d 494 (Mo. banc 2001); Akers v. Warson Garden Apartments, 961 S.W.2d 50 (Mo. banc 1998); Wright v. Sports Associated, Inc., 887 S.W.2d 596 (Mo. banc 1994); Scott v. Edwards Transp. Co., Inc., 807 S.W.2d 75 (Mo. banc 1991); West v. Posten Const. Co., 804 S.W.2d 743 (Mo. banc 1991); Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364 (Mo. banc 1987); Kloppenburg v. Queen Size Shoes, Inc., 704 S.W.2d 234 (Mo. banc 1986); Stegeman v. St. Francis Xavier Parish, 611 S.W.2d 204 (Mo. banc 1981); Bone v. Daniel Hamm Drayage Co., 449 S.W.2d 169 (Mo. 1970); Wilhite v. Hurd, 411 S.W.2d 72 (Mo. 1967); Lake v. Midwest Packing Co., 301 S.W.2d 834 (Mo. 1957); Francis v. Sam Miller Motors, 282 S.W.2d 5 (Mo. 1955); Thacker v. Massman Const. Co., 247 S.W.2d 623 (Mo. 1952); Elliott v. Indiana Western Express, 2003 WL 22439561 (Mo. App. 2003); Baird v. Ozarks Coca-Cola/Dr. Pepper Bottling Co., 2003 WL 22076492 (Mo. App. 2003); Rupard v. Kiesendahl, 114 S.W.3d 389 (Mo. App. 2003); Cunningham v. Research Medical Center, 108 S.W.3d 177 (Mo. App. 2003); Minies v. Meadowbrook Manor, 105 S.W.3d 529 (Mo. App. 2003); Shipp v. Treasurer of State, 99 S.W.3d 44 (Mo. App. 2003) ; Uhlir v. Farmer, 94 S.W.3d 441 (Mo. App. 2003); Wolfe v. Dubourg House/Archdiocese of St. Louis, 93 S.W.3d 855 (Mo. App. 2003); Nielsen v. Max One Corp., 98 S.W.3d 585 (Mo. App. 2003); Sharp v. New Mac Elec. Co-op., 92 S.W.3d 351 (Mo. App. 2003); Jones v. Dan D. Services, L.L.C., 91 S.W.3d 214 (Mo. App. 2002); Seeley v. Anchor Fence Co., 96 S.W.3d 809 (Mo. App. 2002); McDermott v. City of Northwoods Police Dept., 103 S.W.3d 134 (Mo. App. 2002); Rono v. Famous Barr, 91 S.W.3d 688 (Mo. App. 2002); Phillips v. Par Elec. Contractors, 92 S.W.3d 278 (Mo. App. 2002); Muller v. Treasurer Of Missouri, 87 S.W.3d 36 (Mo. App. 2002); Nance v. Treasurer of Missouri, 85 S.W.3d 767 (Mo. App. 2002); Thomas v. City of Springfield, 88 S.W.3d 155 (Mo. App. 2002); Goerlich v. TPF, Inc., 85 S.W.3d 724 (Mo. App. 2002); E.W. v. Kansas City Missouri School Dist., 89 S.W.3d 527 (Mo. App. 2002); Bennett v. Columbia Health Care, 80 S.W.3d 524 (Mo. App. 2002); DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866 (Mo. App. 2002); McCormack v. Carmen Schell Const. Co., 97 S.W.3d 497 (Mo. App. 2002); Grime v. Altec Industries, 83 S.W.3d 581 (Mo. App. 2002); Lorentz v. Missouri State Treasurer, 72 S.W.3d 315 (Mo. App. 2002); Miller v. Wangs, 70 S.W.3d 671 (Mo. App. 2002); Elliott v. Kansas City (Mo., School Dist., 71 S.W.3d 652 (Mo. App. 2002); Gaston v. Steadley Co., 69 S.W.3d 158 (Mo. App. 2002); Dudley v. City of Des Peres, 72 S.W.3d 134 (Mo. App. 2002); Smith v. Tiger Coaches, Inc., 73 S.W.3d 756 (Mo. App. 2002); Pratt v. MFA, Inc., 67 S.W.3d 697 (Mo. App. 2002); Miller v. Penmac Personnel Services, Inc., 68 S.W.3d 574 (Mo. App. 2002); Jones v. Trans World Airlines, Inc., 70 S.W.3d 468 (Mo. App. 2001); Buskuehl v. The Doe Run Co., 68 S.W.3d 535 (Mo. App. 2001); Crowell v. Hawkins, 68 S.W.3d 432 (Mo. App. 2001); Loven v. Greene County, 63 S.W.3d 278 (Mo. App. 2001); Otte v. Langley's Lawn Care, Inc.,

66 S.W.3d 64 (Mo. App. 2001); Smith v. District II A and B, 59 S.W.3d 558 (Mo. App. 2001); Klausner v. Brockman, 58 S.W.3d 671 (Mo. App. 2001); Tiller v. 166 Auto Auction, 65 S.W.3d 1 (Mo. App. 2001); Tangblade v. Lear Corp., 58 S.W.3d 662 (Mo. App. 2001); Roberts v. Parker-Banks Chevrolet, 58 S.W.3d 66 (Mo. App. 2001); Karoutzos v. Treasurer of State, 55 S.W.3d 493 (Mo. App. 2001); Thompson v. Missouri Veterans' Home, 58 S.W.3d 657 (Mo. App. 2001); Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451 (Mo. App. 2001); Loven v. Greene County, 63 S.W.3d 278 (Mo. App. 2001); Thorsen v. Sachs Elec. Co., 52 S.W.3d 611 (Mo. App. 2001); Rana v. Landstar TLC, 46 S.W.3d 614 (Mo. App. 2001); Kennison v. Ranken Technical Institute, 44 S.W.3d 899 (Mo. App. 2001); Sherman v. First Financial Planners, Inc., 41 S.W.3d 633 (Mo. App. 2001); Perry v. Tri-State Motor Transit Co., 41 S.W.3d 919 (Mo. App. 2001); Farmer-Cummings v. Future Foam, Inc., 44 S.W.3d 830 (Mo. App. 2001); Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. 2001); Whiteman v. Del-Jen Const., Inc., 37 S.W.3d 823 (Mo. App. 2001); Whiteman v. Del-Jen Const., Inc., 37 S.W.3d 823 (Mo. App. 2001); Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803 (Mo. App. 2000); Bloss v. Plastic Enterprises, 32 S.W.3d 666 (Mo. App. 2000); Brockmeyer v. Stieferman Bros. Van & Storage, 34 S.W.3d 236 (Mo. App. 2000); Irving v. Missouri State Treasurer, 35 S.W.3d 441 (Mo. App. 2000); Cuba v. Jon Thomas Salons, Inc., 33 S.W.3d 542 (Mo. App. 2000); Smith v. Richardson Bros. Roofing, 32 S.W.3d 568 (Mo. App. 2000); Wilmeth v. TMI, Inc., 26 S.W.3d 476 (Mo. App. 2000); Deckard v. O'Reilly Automotive, Inc., 31 S.W.3d 6 (Mo. App. 2000); Boyles v. USA Rebar Placement, Inc., 26 S.W.3d 418 (Mo. App. 2000); DiMaggio v. Johnston Audio/D & M Sound, 19 S.W.3d 185 (Mo. App. 2000); Soos v. Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000); Higgins v. D.W.F. Wholesale Florists, 14 S.W.3d 286 (Mo. App. 2000); Harp v. Malone Freight Lines, Inc., 16 S.W.3d 667 (Mo. App. 2000); Maxon v. Leggett & Platt, 9 S.W.3d 725 (Mo. App. 2000); Ransburg v. Great Plains Drilling, 22 S.W.3d 726 (Mo. App. 2000); Kuczwara v. Continental Baking Co., 24 S.W.3d 712 (Mo. App. 1999); Tidwell v. Kloster Co., 8 S.W.3d 585 (Mo. App. 1999); Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo. App. 1999); Seaton v. Cabool Lease, Inc., 7 S.W.3d 501 (Mo. App. 1999); Loyd v. Ozark Elec. Co-op., Inc., 4 S.W.3d 579 (Mo. App. 1999); Willeford v. Lester E. Cox Medical Center, 3 S.W.3d 872 (Mo. App. 1999); Conley v. Treasurer of Missouri, 999 S.W.2d 269 (Mo. App. 1999); Reese v. Gary & Roger Link, Inc., 5 S.W.3d 522 (Mo. App. 1999); Mickey v. City Wide Maintenance , 996 S.W.2d 144 (Mo. App. 1999); Mid-Missouri Mental Health Center v. Polston, 995 S.W.2d 527 (Mo. App. 1999); Gausling v. United Industries, 998 S.W.2d 133 (Mo. App. 1999); King v. A.P. Green Industries, Inc., 991 S.W.2d 223 (Mo. App. 1999); Pemberton v. 3M Co., 992 S.W.2d 365 (Mo. App. 1999); Williams v. DePaul Health Center, 996 S.W.2d 619 (Mo. App. 1999); Decker v. National Accounts Payable Auditors, 993 S.W.2d 518 (Mo. App. 1999); Kaderly v. Race Brothers Farm Supply, 993 S.W.2d 512 (Mo. App. 1999); Jacobs v. City of Jefferson, 991 S.W.2d 693 (Mo. App. 1999); Davis v. General Elec. Co., 991 S.W.2d 699 (Mo. App. 1999); Reese v. Coleman, 990 S.W.2d 195 (Mo. App. 1999); Flanigan v. St. James Paseo Learning Center, 996 S.W.2d 524 (Mo. App. 1999); Putnam-Heisler v. Columbia Foods, 989 S.W.2d 257 (Mo. App. 1999); Messex v. Sachs Elec. Co., 989 S.W.2d 206 (Mo. App. 1999); Sanderson v. Porta-Fab Corp., 989 S.W.2d 599 (Mo. App. 1999); Van Black v. Trio Masonry, Inc., 986 S.W.2d 200 (Mo. App. 1999); Williams v. City of Ava, 982 S.W.2d 307 (Mo. App. 1998); Bryan v. Summit Travel, Inc., 984 S.W.2d 185 (Mo. App. 1998); Breckle v. Hawk's Nest, Inc., 980 S.W.2d 192 (Mo. App. 1998); George-Brewer v. Pen Mar Southwest, 980 S.W.2d 147 (Mo. App. 1998); Moriarty v. City of Kirksville, 975 S.W.2d 215 (Mo. App. 1998); Seyler v. Spirtas Indus., 974 S.W.2d 536 (Mo. App. 1998); DeLong v. Shop 'N Save, 972 S.W.2d 495 (Mo. App. 1998); Circo v. A-Cord Elec., 969 S.W.2d 228 (Mo. App. 1998); Lammert v. Vess Beverages, Inc., 968 S.W.2d 720 (Mo. App. 1998); Knipp v. Nordyne, Inc., 969 S.W.2d 236 (Mo. App. 1998); Wisely v. Sysco Foods, 972 S.W.2d 315 (Mo. App. 1998); Simpson v. Saunchegrow Const., 965 S.W.2d 899 (Mo. App. 1998); Avery v. City of Columbia, 966 S.W.2d 315 (Mo. App. 1998); Crabill v. Hannicon, 963 S.W.2d 440 (Mo. App. 1998); Esquivel v. Day's Inn of Branson, 959 S.W.2d 486 (Mo. App. 1998); Cahall v. Cahall, 963 S.W.2d 368 (Mo. App. 1998); Holaus v. William J. Zickell Co., 958 S.W.2d 72 (Mo. App. 1997); Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. App. 1997); Feltrop v. Eskens Drywall and Insulation, 957 S.W.2d 408 (Mo. App. 1997); Cooper v. Medical Center of Independence, 955 S.W.2d 570 (Mo. App. 1997); Walsh v. Treasurer of the State of Mo., 953Inc. , 946 S.W.2d 777, 779 (Mo. App. 1997). By finding the claimant fully credible, the commission credited Dr. Bernstein's conclusions.

Considering the claimant's limitations, his advanced age and his lack of transferable skills, Dr. Bernstein concluded that there would be no available jobs in the open labor market. The commission reviewed the record and found that the claimant had been working at a job involving routine daily heavy lifting for years without symptoms of a back impairment. Following the accident, the claimant became unable to perform basic physical activity. The record as a whole establishes that the claimant suffers from severe degenerative disc disease and that the impairment arose from the workplace accident. The commission relied upon sufficient competent and substantial evidence. Therefore, despite the differing evidence from Dr. Margolis, Dr. Mirkin and Ms. Kane as to the severity of the claimant's limitations, the commission's award is not contrary to the overwhelming weight of the evidence and thus is supported by competent and substantial evidence on the whole record. Mo. Const. art. V, section 18. The commission's award is affirmed. All concur. Footnotes: FN1. All statutory references are to RSMo 2000. FN2. For a thoroughly researched history of this standard of review, see Davis v. Research Medical Center, 903 S.W.2d 557 (Mo. App. 1995). FN3. The Davis court stated the standard of review as follows: fs20 ar The claimant filed a claim for workers' compensation benefits for the back injury. At the hearing before the ALJ, the claimant testified that he never went back to work on full duty, but did work briefly on light duty as a supervisor. He testified that he is never pain free despite medication. He typically lies down or reclines for hours each day. He testified that he can sit for "about an hour," can be on his feet for only a "half hour or so," and could not combine sitting, standing or walking to work a normal day. He testified that he could not lift more than a gallon of milk. The ALJ awarded 25% permanent partial disability. Although he found the claimant to be generally credible, the ALJ questioned the severity of the claimant's complaints and his incentive to return to work. The ALJ rejected a finding of total disability because he found Dr. Bernstein's conclusion unpersuasive as

too reliant on the claimant's subjective complaints. The ALJ also found there was no evidence that the workplace injury, standing alone, had resulted in permanent and total disability. ed16;;;;;;;;; This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

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