Claimant challenges the Commission's decision that he is not permanently and totally disabled due to a combination of his carpal tunnel syndrome and his preexisting conditions. The parties have fundamentally different perspectives about the nature of the award in this case. Claimant contends the Commission ignored the only expert medical opinion in the record, which
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5 Claimant also filed a claim alleging hearing loss and tinnitus caused by his work. However, Claimant submitted no medical evidence of hearing loss or tinnitus. His point on appeal refers to only one "work-related injury," and the argument section of his brief addresses only his carpal tunnel syndrome. Allegations of error not briefed shall not be considered in any civil appeal. Rule 84.13(a). As a result, Claimant has abandoned his appeal of the Commission's denial of Fund liability for his tinnitus claim, and we do not consider it.
the Commission did not find lacked credibility, and substituted its own personal opinion regarding the medical causation of Claimant's permanent total disability. The Fund contends the award hinges on credibility determinations, which are the exclusive province of the Commission, and thus Claimant failed to meet his burden of persuasion. We agree with Claimant. The Fund's argument falls short because here the Commission neither made credibility findings nor offered any explanation or rationale for rejecting Claimant's testimony and for rejecting the only expert medical opinion in the record.
The Fund compensates workers who become permanently and totally disabled as a result of a combination of past disabilities and a later primary work injury. Section 287.220 RSMo. (2000); Williams, 605 S.W.3d at 158. Fund liability arises when a claimant has a preexisting permanent partial disability constituting a hindrance or obstacle to employment or reemployment at the time he or she sustains the primary work injury. Id. A preexisting disability constitutes a hindrance or an obstacle to employment when there is potential for "the pre-existing injury [to] combine with a future work[-]related injury to result in a greater degree of disability than would have resulted if there was no such prior condition." Id.
Here, the Commission determined that Claimant's permanent and total disability did not result from a combination of his primary injury—carpal tunnel syndrome—and his preexisting disabilities involving his low back, neck, shoulders, and hips. The Commission instead determined that Claimant's permanent and total disability resulted from his preexisting disabilities only, without consideration of his carpal tunnel syndrome. Claimant contends the synergistic effect of his preexisting disabilities when combined with his primary injury of carpal tunnel syndrome left him unable to work on the open labor market and resulted in his permanent and total disability. He argues the Commission's denial of permanent total disability benefits
from the Fund is not supported by substantial and competent evidence and is contrary to the substantial weight of the evidence.
When a claimant challenges the Commission's findings on this basis, the claimant must:
(1) marshal all record evidence favorable to the award; (2) marshal all unfavorable evidence, subject to the Commission's explicit or implicit credibility determinations; and (3) show, in the context of the whole record, how the unfavorable evidence so overwhelms the favorable evidence and its reasonable inferences that the award is, in context, not supported by competent and substantial evidence. *Schlereth*, 589 S.W.3d at 652. Adherence to this analytical framework is mandatory because it reflects the underlying criteria necessary for a successful challenge. *Id.* A challenge cannot succeed absent any of the criteria. *Id.*
Claimant first identifies the evidence favorable to the Commission's award. It was undisputed that Claimant suffered from numerous preexisting injuries resulting in disabilities to his low back, neck, both shoulders, and both hips that rendered it difficult for him to perform his job duties. The Commission based its award on Claimant's testimony that he did not seek treatment for carpal tunnel syndrome before he retired, and indeed, he retired before receiving a diagnosis of carpal tunnel syndrome. The Commission further found that, "[t]wo years after retirement, Claimant sought additional treatment for carpal tunnel syndrome, and indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel syndrome." This finding, however, misstates the record as we discuss below.
Next, in marshalling the evidence contrary to the award, Claimant testified he experienced pain, tingling, and numbness in his hands for over 20 years while working for the employer, including at the time of his retirement. He described how employees were instructed to do a "swimmer's shake" to relieve pain and numbness in their hands. Claimant testified that
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while he did not realize before he retired that he had carpal tunnel syndrome specifically, he nevertheless had problems with both wrists and hands leading up to his retirement. He needed help from other workers to complete his work, and struggled with the heavy lifting required to perform his job duties. He also testified his carpal tunnel syndrome, combined with his prior injuries, prompted him to retire and rendered him unable to work. Claimant's medical expert, Dr. Woiteshek, concluded that Claimant is permanently and totally disabled as a result of his carpal tunnel syndrome synergistically combining with his preexisting conditions. Dr. Woiteshek opined that Claimant's injuries and conditions, including carpal tunnel syndrome, combined to create overall greater disability than the simple sum of each separate injury or condition.
Although not acknowledged in the Commission's decision, Dr. Vellinga's records dated February 11, 2009 report Claimant complained of weakness of the right upper extremity along with numbness and paresthesia of his right hand. Throughout the months following his retirement, Claimant continued to report to Dr. Vellinga numbness and paresthesia in his right hand. Dr. Vellinga found Claimant's right-hand grasp was weak, and referred him to neurologist Dr. Robert Margolis. Claimant consulted Dr. Margolis in June 2009 for numbness and tingling in his hands and feet, underwent EMGs and nerve conduction studies ordered by Dr. Margolis, and received a diagnosis of carpal tunnel syndrome. Claimant sought treatment for his carpal tunnel syndrome from Dr. Vic Glogovac in September 2009, which again the Commission's decision does not acknowledge. In the fall of 2010, Dr. Glogovac performed a carpal tunnel release on each of Claimant's wrists.
In its findings, the Commission correctly notes that Claimant consulted neurologist Dr. Margolis for numbness and tingling in his hands in June 2009, five months after retiring. The Commission does not mention, however, that Claimant reported problems with his hands to Dr.
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Vellinga beginning in February 2009, or that he sought treatment from Dr. Glogovac beginning in September 2009. Rather, in concluding that Claimant did not consider his primary hand and wrist injury in his retirement plans, the Commission focused on the fall of 2010 when Claimant underwent carpal tunnel release surgery on each wrist. The Commission further states, "[t]wo years after retirement, Claimant sought additional treatment for carpal tunnel syndrome, and indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel syndrome."
In addition to ignoring competent and substantial medical evidence of Claimant's complaints and treatment, the Commission's decision misstates the record. Dr. Rotman did not treat Claimant for problems with his hands and wrists. Dr. Rotman was a physician hired by the employer to examine Claimant in 2011 for purposes of his worker's compensation claims. However, no certified medical records, complete medical reports, or deposition or live testimony from Dr. Rotman were submitted into evidence in accord with the provisions of sections 287.140.7 and 287.210. The Fund acknowledged at oral argument that Dr. Rotman's report is not in the record. The provisions of the Workers' Compensation Law are to be strictly construed. Section 287.800.1. Therefore, the ALJ, the Commission, and this Court cannot accept as substantial and competent evidence a purported excerpt from an examining physician's report, quoted in the report of a non-medical witness, about what Claimant allegedly told the physician. Such an excerpt does not qualify as a certified medical record under section 287.140.7. It does
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6 Section 287.140.7 states:
Every hospital or other person furnishing the employee with medical aid shall permit its record to be copied by and shall furnish full information to the division or the commission, the employer, the employee or his dependents and any other party to any proceedings for compensation under this chapter, and certified copies of the records shall be admissible in evidence in any such proceedings.
(Emphasis added).
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not qualify as a complete medical report under 287.210. It does not qualify as deposition or live testimony.
The Commission nevertheless relied on this purported excerpt from Dr. Rotman's report cited only by Mr. Cordray in his vocational report. The Commission relied on this information despite explicitly finding Mr. Cordray neither persuasive nor credible, and consequently finding the report of Mr. Cordray not persuasive and not credible. The quote on which the Commission relied is less than clear: "He also has quite a bit of health issues which caused him to take early retirement from mainly his heart. He has issues with chronic problems from his right shoulder as well." In short, the Commission then relied on this unclear quote to find Claimant "indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel syndrome." This finding is not supported by substantial competent evidence.
In the context of the whole record, the unfavorable evidence so overwhelms the favorable evidence and its reasonable inferences that the award is, in context, not supported by competent and substantial evidence. The sole expert medical evidence presented—the qualified medical opinion of Dr. Woiteshek—was that Claimant is permanently and totally disabled because of a synergistic combination of his carpal tunnel syndrome and preexisting injuries. The Commission did not find Dr. Woiteshek lacked credibility or was not persuasive, and Dr. Woiteshek was not impeached. The Commission, however, ignored Dr. Woiteshek's uncontradicted opinion without explanation, and instead determined that Claimant retired because of his neck, back, shoulder, and hip problems, without consideration of his carpal tunnel syndrome. No medical expert opined that Claimant was permanently and totally disabled because of his preexisting disabilities without considering his hand and wrist problems. The Commission was not free to arbitrarily disregard and ignore Dr. Woiteshek's testimony regarding the cause of Claimant's disability, and
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instead "base its finding 'upon conjecture or its own mere personal opinion unsupported by sufficient competent evidence.'" *Hazeltine v. Second Injury Fund*, 591 S.W.3d 45, 63 (Mo. App. E.D. 2019) (quoting *Lawrence v. Treasurer of State-Custodian of 2nd Injury Fund*, 470 S.W.3d 6, 16 (Mo. App. W.D. 2015)).
In addition, Claimant testified that he experienced problems with his hands and wrists for many years before his retirement. He explained how the employer instructed him to do a "swimmer's shake" to relieve numbness and pain in his hands. He consistently testified he was no longer physically able to perform his job duties because of the combination of the ringing in his ears, his carpal tunnel syndrome, and all of his prior injuries. The Commission did not find Claimant was not credible, nor was Claimant impeached. The Commission simply relied on Claimant's lack of treatment for and specific diagnosis of carpal tunnel syndrome before he retired. At the same time, the Commission ignored other portions of Claimant's testimony where he stated he had issues and problems with his hands and wrists, but did not know he had carpal tunnel syndrome specifically until diagnosed. And the Commission ignored the qualified medical opinion of Dr. Woiteshek entirely. Because neither Claimant nor Dr. Woiteshek were explicitly found not credible, contradicted, or impeached, we find the Commission erred in disregarding this evidence.
Only to the extent they are supported by sufficient competent evidence are the Commission's factual findings binding and conclusive. *Williams*, 605 S.W.3d at 159. The record must contain medical testimony or evidence supporting the Commission's finding of causation. *Id.* Absent medical testimony, any finding of causation would be based merely on conjecture and speculation rather than on substantial evidence. *Id.* The Commission may not substitute an ALJ's personal opinion regarding medical causation for the uncontradicted testimony of a qualified
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medical expert. *Angus v. Second Injury Fund*, 328 S.W.3d 294, 300 (Mo. App. W.D. 2010).
"When expert medical testimony is presented, an ALJ's personal views of [the evidence] cannot provide sufficient basis to decide the causation question, at least where the ALJ fails to account for the relevant medical testimony." *Williams*, 605 S.W.3d at 159-60. Likewise, where the record is silent on the Commission's findings on the weight of witness credibility, and neither the claimant nor the testifying experts were contradicted or impeached, the Commission "may not arbitrarily disregard and ignore competent, substantial and undisputed evidence." *Id.* at 160 (quoting *Hazeltine*, 591 S.W.3d at 59).
Yet this is precisely what occurred here. In determining the Fund had no liability, the Commission ignored the parties' stipulation that Claimant suffered an occupational disease within the course and scope of his employment, medical records of Claimant's 2009 complaints of hand and wrist problems, and Claimant's testimony that the problems with his hands were a factor in his decision to retire. He just did not know the specific diagnosis for the problems with his hands. There was no evidence to contradict Claimant's 2015 settlement with the employer for 20% permanent partial disability of each wrist with a 10% loading factor. Instead, the Commission focused on Claimant's lack of a diagnosis for his hand and wrist problems prior to retirement. Further, the Commission relied on an excerpt from Mr. Cordray's report ostensibly quoting Dr. Rotman as to what Claimant allegedly told him to bolster its findings when Dr. Rotman's report was not entered into evidence and is not contained in the record. The Commission then mischaracterized the nature of the examination performed in 2011 by Dr. Rotman, the employer's examining physician, to state that Claimant sought additional treatment for carpal tunnel syndrome two years after he retired. Consequently, the Commission's reliance on an excerpt from a document outside the record cannot be credited to support a finding that
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Claimant "indicated to Dr. Rotman his retirement was not induced by symptoms of carpal tunnel syndrome."
The Fund, however, characterizes the essential issue in this case as a question of credibility leading to Claimant's failure to meet his burden of persuasion. The Fund cites *Guinn v. Treasurer of Missouri*, 600 S.W.3d 874 (Mo. App. S.D. 2020), *Anttila v. Treasurer of Missouri*, No. SD36826, 2021 WL 4236974 (Mo. App. S.D. Sept. 17, 2021), and *Annayeva v. Special Administrative Board of the Transitional School District of St. Louis*, 597 S.W.3d 196, to support its contention. All three cases are readily distinguishable from the present case. None of the three cases involve an ALJ or the Commission disregarding uncontradicted and unimpeached medical evidence and substituting their own opinion of medical causation.
*Guinn* and *Anttila* involved conflicting expert medical opinions regarding the cause of the claimant's permanent and total disability, and the Commission believed the opposing expert over the claimant's expert. *Guinn*, 600 S.W.3d at 877-78; *Anttila*, 2021 WL 4236974, at *2. Such is not the case here. As the Southern District stated, "[t]his was a battle of experts." *Id.* at *7. Unlike the present case, *Annayeva* hinged on the claimant's credibility, and the Commission identified evidence in the record—such as the claimant's inconsistent testimony and her initial accident report—to support its explicit finding that the claimant's explanation of the cause of her fall was not credible. 597 S.W.3d at 200 n.8.
Generally, we defer to the Commission on issues involving the credibility of witnesses and the weight given to testimony, and we acknowledge the Commission may decide a case upon its disbelief of uncontradicted and unimpeached testimony. *Abt v. Mississippi Lime Co.*, 388 S.W.3d 571, 578 (Mo. App. E.D. 2012); *see also, Annayeva*, 597 S.W.3d at 200 n.8 (stating once expressed by the Commission, credibility determinations are binding on this Court).
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Nevertheless, "where the record reveals no conflict in the evidence or impeachment of any witness, the reviewing court may find the award was not based upon disbelief of the testimony of the witnesses." *Abt*, 388 S.W.3d at 578 (quoting *Corp v. Joplin Cement Co.*, 337 S.W.2d 252, 258 (Mo. banc 1960)). The Commission may not arbitrarily disregard and ignore competent, substantial, and undisputed evidence of witnesses who are not shown by the record to have been impeached. *Id.* Likewise, the Commission may not base its findings upon conjecture or its mere personal opinion unsupported by sufficient competent evidence. *Id.*
Here, there were no conflicting medical opinions in the record for the Commission to weigh. The parties stipulated Claimant suffered an occupational disease and had preexisting disabilities. It was undisputed that Claimant settled with the employer for 20% disability of each wrist with a 10% loading factor. The only issue before the ALJ was Fund liability. The ALJ implicitly found Claimant permanently and totally disabled, did not expressly find Dr. Woiteshek or Claimant not credible, and offered no reasonable basis for finding evidence of causation not credible. Thus, the Commission could not reasonably have made its findings and reached its result based on all the evidence in the record. The totality of the evidence in the record supports a finding of permanent and total disability due to a combination of Claimant's carpal tunnel syndrome and his preexisting conditions. Because we find the Commission arbitrarily disregarded and ignored the substantial and undisputed evidence offered by Claimant, its denial of his claim against the Fund is in error. *Hazeltine*, 591 S.W.3d at 65.
**Conclusion**
The Commission arbitrarily ignored the substantial, uncontradicted, and unimpeached evidence, including the only qualified expert medical opinion in the record, without explanation or a reasonable basis for finding the witnesses not credible. The Commission then substituted its
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own theory of the medical cause of Claimant's permanent total disability. As a result, the Commission's decision contrary to the only expert medical opinion in the record is not supported by sufficient competent evidence and is against the overwhelming weight of the evidence.
On appeal, we review decisions by the Commission to ensure they are supported by competent and substantial evidence. Mo. Const. art. V, sec. 18; White, 535 S.W.3d at 338. Viewing the award objectively and examining the evidence in the whole record, we conclude Claimant met his burden of establishing, under section 287.220 RSMo. (2000), that he is permanently and totally disabled due to a combination of his preexisting permanent disabilities and his primary injury. We find the Fund is liable for the Claimant's permanent and total disability.
We reverse the Commission's decision that the Fund is not liable for Claimant's permanent and total disability, and we remand with instructions for the Commission to enter an award consistent with the findings in this opinion.
Angela T. Quigless, J.
Philip M. Hess, P.J. and
Colleen Dolan, J., concur.
STATE OF MISSOURI, $\}$
City of St. Louis
ss.
I, LAURA THIELMEIER ROY, Clerk of the Missouri Court of Appeals, Eastern District, certify that the foregoing is a true copy of the opinion/order delivered by this court in the foregoing entitled cause on the 194 day of October 2021 as the same appears on file in my office.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court, at office, in the City of St. Louis this 194 day of October 2021.