Watson v. Tuthill Corp.

672 S.W.3d 260

William B. WATSON, Respondent,

v. TUTHILL CORPORATION and Sentry Insurance Company, Appellants,andTreasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent.

Nos. SD 37293

SD 37294 CONSOLIDATED

Missouri Court of Appeals, Southern District, In Division.

Filed: July 19, 2023

Appellant's attorneys: Mary Anne Lindsey and Michael F. Banahan, St. Louis, Missouri.

Respondent Watson's attorney: Rick S. Vasquez, Springfield, Missouri.

Respondent Second Injury Fund's attorneys: Eric Schmitt, Attorney General, and Michael Bang, Assistant Attorney General, Springfield, Missouri.

JACK A. L. GOODMAN, C.J.

William Watson ("Claimant") injured his lower back while in the course and scope of his employment with Tuthill Corporation ("Employer"). When Claimant returned to work months later, he injured his neck. Claimant then filed workers’ compensation claims for both injuries. The Labor and Industrial Relations Commission ("Commission") adopted the decision of the administrative law judge ("ALJ"), who found, among other things, that both injuries were compensable and that Claimant's lower back injury, in isolation, rendered him permanently and totally disabled.

Employer and its insurer appealed, challenging the prevailing factor findings, the sufficiency of the evidence to support a finding of permanent total disability as opposed to permanent partial disability, and the determination that the Second Injury Fund ("Fund") bore no liability to compensate Claimant. We affirm because the award is supported by substantial and competent evidence and the Commission did not err in finding the Fund is not liable to Claimant.

Background

Claimant worked 28 years for Employer, often putting in 80 hours of work per week. Most of that time he worked as a service technician, tearing down and repairing rotary air equipment. Claimant sustained various injuries through the years, none of which prevented him from returning to full-time work without restrictions.

In April of 2015, Claimant's lower back popped when he caught a falling motor. He immediately felt pain emanating from his lower back and traveling down his right leg. We will refer to this accident and the lower back injury therefrom as the "Back Injury."¹ Medications, injections, and therapy did not alleviate his pain. Claimant underwent surgery to decompress and fuse part of his lumbar spine in August of 2015. The surgical intervention improved but did not completely resolve Claimant's symptoms.

On January 25, 2016, Claimant returned to full-time work performing basically the same teardown and repair tasks he did prior to the Back Injury. Claimant had difficulty getting up and down and could not do some things he could before his Back Injury, like lifting heavy parts. Claimant had to take breaks to lie down for 10-20 minutes 3-5 times per day, plus additional rest time over his lunch break. On February 1, 2016, Claimant was using a pneumatic tool at work when he twisted his neck and heard it crack or pop. He immediately felt tightness in his neck and upper back. We will refer to this accident and the neck injury therefrom as the "Neck Injury." Claimant's neck was treated with heat, manipulation, and traction.

Claimant attempted to work after his Neck Injury. He worked slowly, took several breaks throughout the day, and after each day of work he had to take a day or two off to recover. In the ten weeks after the Neck Injury, Claimant worked only two or three days per week and exhausted his accrued paid leave. On April 23, 2016, he decided to retire because he could no longer do the job and because he did not want to have his employment terminated due to absenteeism. Claimant did not reach maximum medical improvement for the Back Injury until July of 2016.

Claimant filed separate claims for his Back Injury and Neck Injury. At a hearing on both claims, the ALJ received testimony from Claimant's medical expert, Dr. Koprivica, who opined that the work accident was the direct, proximate, and prevailing factor causing the Back Injury, which, in isolation, rendered Claimant permanently and totally disabled. Employer's medical expert, Dr. Belz, opined that occupational exposure was not a prevailing or substantial factor causing Claimant's Back Injury. Dr. Belz found neither the Back Injury nor the Neck Injury, in isolation, met the requirements for permanent total disability, but when considered together with all prior injuries and a non-work-related degenerative condition, Claimant was permanently and totally disabled.

Claimant testified that he was unable to do his job any longer. He attributed his inability to work to the Back Injury. Claimant cannot stand on a hard surface for more than 20-30 minutes at a time, he cannot lift more than 15 pounds repetitively, he cannot sit upright in a chair for more than 20 minutes at a time, and he cannot look down to do work at a desk for more than five to ten minutes at a time.

Claimant's vocational expert opined that Claimant was unemployable in the open labor market and is permanently and totally disabled. Although other injuries were considered, the expert's determinations were based on the Back Injury in isolation. Employer's vocational expert did not believe Claimant was unemployable or permanently and totally disabled, but she deferred to Dr. Belz's determination regarding Claimant's permanent and total disability.

As relevant to this appeal, the ALJ found: (1) work was the prevailing factor for Claimant's Back Injury and Neck Injury; (2) the Back Injury in isolation rendered Claimant permanently and totally disabled as of July 18, 2016, the date of his maximum medical improvement; and (3) Fund is not liable because Claimant's "last injury" was the Back Injury, not the Neck Injury. Employer applied for review by the Commission, which issued final awards affirming and incorporating the ALJ's decisions. Employer appealed both awards. We consolidated those appeals for all purposes.

Legal Principles

"The Commission's decision must be ‘supported by competent and substantial evidence upon the whole record.’ " Swafford v. Treasurer of Missouri , 659 S.W.3d 580, 582 (Mo. banc 2023) (quoting Mo. Const. art. V, sec. 18 ). We review only questions of law and may modify, reverse, remand for rehearing, or set aside the award only on the grounds provided in § 287.495.1 RSMo. (2016) and no other. Id. Where, as here, the Commission affirms and incorporates the ALJ's award and decision, we treat the ALJ's findings as part of the award of the Commission. Nichols v. Belleview R-III Sch. Dist. , 528 S.W.3d 918, 921 fn.2 (Mo. App. 2017). Absent fraud, the Commission's factual findings are conclusive and binding. Swafford , 659 S.W.3d at 582.

The relevant history and purpose of the Fund was summarized in Dubuc v. Treasurer of State - Custodian of Second Injury Fund , 597 S.W.3d 372, 377 (Mo. App. 2020) (internal punctuation and citations omitted):

Section 287.220 establishes the Second Injury Fund. The General Assembly created the Second Injury Fund in an effort to encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury. The existence of the Fund ensures that an employer is only liable for the disability caused by the work injury. The Fund's liability for permanent partial and total disability claims is statutorily limited, however, to the parameters described in section 287.220.

We take Employer's points out of order for ease of analysis.

Sufficiency of Evidence (Points III and IV)

Employer contends the Commission's award was not supported by competent and substantial evidence because Dr. Koprivica's opinion, on which the Commission relied for its prevailing factor finding, was without a substantial basis in fact and was contrary to evidence that Claimant's spinal condition was pre-existing and degenerative.

In worker's compensation cases, it is not uncommon for appellants to combine two distinct legal challenges into one. The first type of challenge is evidentiary: that an expert's testimony is inadmissible and should be disregarded because it does not satisfy the requirements of § 490.065 RSMo. (Cum. Supp. 2017). See, e.g. , Hogenmiller v. Mississippi Lime Co. , 574 S.W.3d 333, 336-37 (Mo. App. 2019) ( § 490.065 is the standard used to evaluate admissibility of expert testimony in workers’ compensation cases). This type of challenge is preserved by a timely objection at the time the evidence is offered. Rhoden v. Missouri Delta Med. Ctr. , 621 S.W.3d 469, 483-84 (Mo. banc 2021). The second challenge goes to the weight of the evidence: that an expert's opinion is less credible or persuasive than other testimony or evidence before the factfinder. See, e.g. , Comparato v. Lyn Flex West , 611 S.W.3d 913, 921-23 (Mo. App. 2020). This type of challenge often arises through the introduction of contrary evidence or by impeachment of an expert witness in cross-examination. Williams v. Treasurer of Missouri , 598 S.W.3d 180, 188 (Mo. App. 2020). Uncontradicted and unimpeached testimony may be disbelieved, but the Commission must make express credibility findings to do so. Id.

"As a rule, questions regarding the sources and bases of expert witness testimony and opinions affect the weight, not the admissibility, of such evidence." Mansil v. Midwest Emergency Med. Servs., P.C. , 554 S.W.3d 471, 475 (Mo. App. 2018). "The weight afforded a medical expert's opinion is exclusively within the discretion of the Commission." Mirfasihi v. Honeywell Fed. Mfg. & Techs., LLC , 620 S.W.3d 658, 666 (Mo. App. 2021) (quoting Beatrice v. Curators of Univ. of Missouri , 438 S.W.3d 426, 435 (Mo. App. 2014) ). Despite these longstanding principles, Employer, like many others appealing a worker's compensation award, argues the Commission and this court must ignore or disregard an expert's opinion, entered into the record without a foundational objection, under the theory that "objective...