Knutter by Knutter v. American National Insurance

578 S.W.3d 824

Joan KNUTTER, Deceased Employee BY Michael KNUTTER, Claimant-Respondent,

v.AMERICAN NATIONAL INSURANCE, Employer-Appellant.

No. SD 35644

Missouri Court of Appeals, Southern District, Division Two.

Filed: May 13, 2019

ATTORNEY FOR APPELLANT – ROBIN L. BULLOCK, Springfield, MO.

ATTORNEY FOR RESPONDENT – RYAN E. MURPHY, Springfield, MO.

MARY W. SHEFFIELD, J.

This is an appeal from an award of compensation in the amount of $ 43,160.00 entered by the Labor and Industrial Relations Commission ("the Commission") in favor of Michael Knutter ("Claimant"). Claimant's mother, Joan Knutter ("Employee"), worked for American National Insurance ("Employer"). She broke her ankle when she slipped and fell on ice outside of her workplace on March 25, 2013. On May 9, 2013, Employee died following a saddle pulmonary embolism, which related to the immobility that resulted from her workplace injury. Employee's husband, Karl Knutter ("Husband"), asserted a claim for dependent benefits. On July 17, 2015, Husband died. After Husband's death, Employee and Husband's son, Michael Knutter ("Claimant"), was substituted as the personal representative of Husband.

Employer raises four points on appeal. Points 1-3 challenge the award as not based on sufficient competent evidence. Point 4 challenges the basis of Claimant's substitution for Husband. Because there was sufficient competent evidence to support the Commission's award, and because Employer's specific challenge to the basis for Claimant's substitution was not raised below, we affirm.

Standard of Review

"On appeal, this Court reviews the Commission's decision to determine if it is ‘supported by competent and substantial evidence upon the whole record.’ " Johme v. St. John's Mercy Healthcare , 366 S.W.3d 504, 509 (Mo. banc 2012) (quoting Mo. Const. Art. V, § 18 ). This Court:

may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the [C]ommission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the [C]ommission do not support the award; [or]

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

§ 287.495.1.¹

This Court reviews questions of law de novo, but gives deference to the Commission on issues of fact, credibility determinations, and the weight the Commission afforded to conflicting evidence. Malam v. State, Dept. of Corrs. , 492 S.W.3d 926, 928 (Mo. banc 2016). When medical causation is not within common experience or knowledge, it must be established by scientific or medical evidence that shows the relationship between the claimant's condition and the asserted cause. Beatrice v. Curators of Univ. of Mo. , 438 S.W.3d 426, 435 (Mo. App. W.D. 2014). Medical opinion testimony as to causation is competent, and can be viewed as substantial evidence. Id. This Court affords the Commission deference "in resolving conflicting medical testimony given by various expert witnesses." Cole v. Alan Wire Co. , 521 S.W.3d 308, 310 (Mo. App. S.D. 2017).

Background

On March 25, 2013, Employee, while in the course and scope of her employment, fractured her ankle when she slipped and fell on ice outside of her workplace. Initially, Employee was given a protective splint and crutches to assist with her non-weight bearing instructions. On April 1, 2013, Employee saw an orthopedic physician, Dr. Robert Bennett ("Dr. Bennett"). Dr. Bennett's notes indicated that Employee had "slipped and put some pressure on [her ankle] since the time of injury" so he elected to treat her with a short-leg, non-walking cast and a wheelchair was also prescribed. On May 3, 2013, Employee again saw Dr. Bennett. He noted that Employee's previous cast was "quite loose as her swelling ha[d] decreased" and her fracture was healing well. Employee received a new short-leg cast, and Dr. Bennett scheduled a follow-up appointment for two weeks later.

On May 9, 2013, Employee experienced shortness of breath while she was sitting on the toilet, and was transported to the Emergency Department by ambulance. She suffered a saddle pulmonary embolism and died the same day. Husband timely asserted a claim for dependent benefits as a relative by marriage of a deceased employee. However, while the underlying claim was still pending, Husband died on July 17, 2015. On July 31, 2015, Claimant filed a "Motion for Substitution of Party and Suggestion of Death." After oral argument before the Administrative Law Judge ("ALJ"), Claimant's motion was granted and Claimant was substituted as Husband's "only surviving son and personal representative to his estate[.]"

During the subsequent hearing on the claim, the ALJ reviewed reports from four different expert doctors as to whether Employee's ankle fracture led to the pulmonary embolism that caused her death. Claimant's experts, Dr. Mitch Mullins ("Dr. M. Mullins") and Dr. Thomas Wright ("Dr. Wright"), opined that Employee's ankle injury and resulting immobility led to her death by pulmonary embolism. By contrast, Employer's experts, Dr. Randall Cross ("Dr. Cross") and Dr. John Randolph Mullins ("Dr. J. Mullins"), opined that the exact cause of Employee's pulmonary embolism was unknown and her death could not be directly connected to her ankle fracture.

The ALJ found in favor of Employer. The Commission, however, reversed the ALJ's decision. In its findings of fact, the Commission stated:

We do not dismiss the ALJ's observation that because there was no autopsy, no medical records document the specific location of [Employee's] blood clot or deep vein thrombosis. However, we disagree with the ALJ's conclusion that it is purely speculative to link [Employee's] work-related right ankle injury and her fatal saddle pulmonary. Neither Dr. Cross' identification of a multitude of other risk factors based [on Employee's] medical history and hospital records, nor Dr. J. Mullins' inability to find examples in medical literature of individuals who had ankle fractures and experienced onset of pulmonary embolus while sitting on the toilet, convince us that [Employee's] fatal pulmonary embolism following forty-five days of virtually total immobility due to confinement to a wheelchair immobilization was purely coincidental. We find, based on the credible expert medical opinions of Dr. Wright and [Dr. M. Mullins], that the prevailing cause of [Employee's] death was her March 25, 2013, traumatic ankle injury and subsequent immobilization, resulting in venous stasis and ultimately causing her fatal saddle pulmonary embolism.

(emphasis added). The Commission awarded Claimant death benefits due and owed at the time of Husband's death in the amount of $ 43,160.00. The Commission also upheld the substitution of Claimant in place of Husband.² This appeal followed.

Discussion

Employer's points 1-3 contend that the Commission's decision lacks sufficient competent evidence pursuant to § 287.495.1(4). Specifically, Employer's point 1 contends there is insufficient evidence that Employee was "virtually totally immobilized" for 45 days prior to her death, including the time between her May 3 appointment with Dr. Bennett and her death on May 9. Employer's point 2 alleges there is a lack of evidence that Employee's pulmonary embolism originated in her lower extremities that were purportedly immobilized. Employer's point 3 contends there was no expert testimony that Employee's injury was the "prevailing factor" in causing her death, or in the alternative, that the expert testimony the Commission relied on was "inadequate and not based on sufficient facts and data."

By claiming that the Commission's award is not supported by competent and substantial evidence according to § 287.495.1(4), Employer triggers a specific analytical process, whereby Employer must:

1. Identify a factual proposition necessary to sustain the Commission's result;

2. Marshal all evidence in the record supporting that factual proposition, subject to the Commission's authorized factual and credibility determinations, explicit or implicit, and viewing the record objectively where there were no explicit or implicit findings;

3. Demonstrate why the evidence from the second step lacks sufficient probative force on the issues, such that the Commission could not have reasonably believed the factual proposition set forth in step one.

Robinson v. Loxcreen Co., Inc. , Nos. SD35649 & SD35650 Consolidated, 571 S.W.3d 247, 250–51, 2019 WL 1614592, at *3 (Mo. App. S.D. Apr. 16, 2019) ; Nichols v. Belleview R-III Sch. Dist. , 528 S.W.3d 918, 927-28 (Mo. App. S.D. 2017). "A section 287.495.1(4) challenge succeeds only in the demonstrated absence of sufficient competent substantial evidence; evidence contrary to the award of the Commission, regardless of quantity or quality, is ‘irrelevant.’ " Nichols , 528 S.W.3d at 922 (quoting Hornbeck v. Spectra Painting, Inc. , 370 S.W.3d 624, 629 (Mo. banc 2012) ). "[A]dherence to this analytical formula is mandatory ... because it reflects the underlying criteria necessary for a successful challenge—the absence of any such criteria, even without a court-formulated sequence, dooms an appellant's challenge." Id. at 928 (emphasis added).

Point 1 illustrates Employer's failure in these regards. Employer admits that "as long as a patient remained immobilized" she would be at increased risk of embolism from the immobilized area, yet disregards the report of its own expert, Dr. Cross, acknowledging that Employee "had been in a wheelchair during much of the 45 days from the time of her ankle fracture until the day of her demise." Claimant's expert, Dr. M. Mullins, expressly relied on this in reaching his causation opinion that was credited by the Commission. Employer's point 2 argument suffers similar failings.

For the Commission's award to be reversed on a § 287.495.1(4) challenge, there must be an absence of sufficient competent evidence supporting it.

Nichols , 528 S.W.3d at...