Dennis Moss v. Missouri Department of Corrections

Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011)(citation omitted).

When the question is the nature and extent of permanent disability, the courts have consistently instructed that the "degree of disability is not solely a medical question." ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007).

The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

Elliott v. Kan. City School Dist., 71 S.W.3d 652, 657 (Mo. App. 2002)(citation omitted).

Turning to § 287.190.6(2)—the language of which we are, of course, required to strictly construe by virtue of $\S 287.800 .1$ RSMo-we next observe that this section does not specifically require that an employee advance an opinion from a doctor that he or she is permanently and totally disabled; instead, the legislature used the words "demonstrated" and "certified" to describe the type of medical proof that will support a claim for benefits premised on permanent disability. Turning to our dictionary, we find the following definitions, set forth in relevant part:

1 : to attest especially authoritatively or formally: CONFIRM

2 : to inform with certainty: ASSURE

1 a : INDICATE: point out b : to manifest clearly, certainly, or

unmistakably: show clearly the existence of

2 a : to make evident or reveal as true by reasoning processes, concrete

facts and evidence, experimentation, operation, or repeated examples

b : to illustrate or explain in an orderly and detailed way especially with

many examples, specimens, and particulars[.]

The foregoing does not, in our view, imply or mandate any requirement that a medical expert in a workers' compensation case specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied. Rather, it would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the

extent of an employee's physical functioning by making findings on examination, rendering diagnoses as to the employee's medical conditions, and identifying restrictions or recommendations as to the employee's physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee's physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because " $[t]$ he Commission, and not the physician, is the trier of fact in workers' compensation cases." Sanderson v. Porta-Fab Corp., 989 S.W.2d 599, 603 (Mo. App. 1999)(citations omitted).

Consistent with the well-established test for permanent total disability in Missouri set forth above, a proper analysis of employability requires not only the medical identification of physical limitations but also consideration of issues such as job requirements, job availability, transferable skills, and prospects for retraining. In many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment. Our courts have consistently recognized this reality, and a number of recent decisions have, in unmistakable fashion, affirmed and defended the discretionary province of the fact-finder from overly technical challenges to the sufficiency of a party's medical evidence:

[T]he record need not contain a single expert opinion addressing the entirety of a claimant's conditions. Rather, the Commission may consider the opinions of multiple experts of differing specialties to arrive at its factual determination as to the parts and sum of a claimant's conditions.

Patterson v. Cent. Freight Lines, 452 S.W.3d 759, 767 (Mo. App. 2015).

SIF contends that the Commission erred as a matter of law in awarding permanent and total disability benefits by failing to apply the appropriate statutory standard in its finding that Majors is permanently and totally disabled. Under Section 287.190.6(2) RSMo "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." ... In its finding of permanent and total disability, the Commission was authorized to rely upon the substance of Dr. Stuckmeyer's medical conclusions as to the severity of Majors' knee injury and physical restrictions thereto in combination with his severe pre-existing knee disability and the necessity for future total knee replacement. Though Dr. Stuckmeyer may not have used "magic words" like "certify" and "permanent and total disability," the clear and plain import of Dr. Stuckmeyer's testimony is that Majors' workplace accident was the prevailing factor in causing an extremely debilitating and continuing disability severely restricting Majors' ability to perform the functions of his previous employment or any similar employment in the future. ... SIF's attempt to foist a hyper-technical "magic words" test upon Dr. Stuckmeyer's testimony violates the dictate of our Supreme Court in Malam v. Dep't of Corr. directing us to consider the words of a

medical expert and, in context, apply "the plain meaning of the medical expert's testimony." This is precisely what the Commission has done in interpreting the plain meaning of Dr. Stuckmeyer's testimony and the Commission has not erred in doing so.

Treasurer of Mo. v. Majors, 506 S.W.3d 348, 352-53 (Mo. App. 2016), citing Malam v. Dep't of Corr., 492 S.W.3d 926 (Mo. 2016).

Especially in light of the relevant and controlling analysis from the Majors court set forth above, we read § 287.190.6(2) as permitting us to do as we have always done: consider the actual substance of the opinions from the testifying experts, weigh the persuasive value of those opinions, and then fulfill our fact-finding duty to determine the nature and extent of an employee's disability. While we agree that $\S 287.190 .6(2)$ requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions-as well as decisions from administrative law judges and the Commission-be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker's employability, cannot be supplemented (or refuted) by other, nonmedical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record in its entirety and to draw reasonable inferences therefrom.

Turning to the facts of this case, we note that the administrative law judge's remarkably thorough award includes a painstaking examination of the opinions from each of the medical and vocational experts who testified in this case, as well as clear and wellreasoned findings as to the persuasive value thereof. Although this record might have supported a different result, we are convinced that the administrative law judge's findings are supported by expert medical opinions, the substance of which are sufficiently detailed so as to satisfy the "demonstration" and "certification" requirements under § 287.190.6(2). After careful consideration, we are not inclined to disturb the administrative law judge's finding that employee is permanently and totally disabled based on the combination of the primary injury and his preexisting disabling conditions. For this reason, we affirm the award of permanent total disability benefits from the Second Injury Fund.

On page 40 of his award, the administrative law judge noted the competing permanent partial disability ratings from Drs. Craig Satterlee and William Hopkins, but declared these ratings "not credible or persuasive." Dr. Satterlee rated employee's permanent partial disability referable to the primary injury at 30 % of the right shoulder, while Dr. Hopkins rated 35 or 36 % of the right shoulder (although Dr. Hopkin's report ultimately identifies a 35 % permanent partial disability referable to the primary injury, we note that this appears to be the result of a mathematical error, as the doctor otherwise rated employee's overall disability affecting the right shoulder at 42 %, with 6 % referable to preexisting conditions). The administrative law judge found employee suffered a 32.5 % p