                                        In the
                        Missouri Court of Appeals
                                 Western District
 JEFFERSON CITY COUNTRY                      )
 CLUB,                                       )
                                             )   WD79405
                Appellant,                   )
                                             )   OPINION FILED:
 v.                                          )   September 27, 2016
                                             )
 LYDIA PACE AND TREASURER OF                 )
 THE STATE OF MISSOURI,                      )
 CUSTODIAN OF THE SECOND                     )
 INJURY FUND,                                )
                                             )
              Respondents.

            Appeal from the Labor and Industrial Relations Commission

 Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                             and Gary D. Witt, Judge


      Jefferson City Country Club ("Employer") appeals the unanimous Final Award of

the Labor and Industrial Relations Commission (the "Commission"), which awarded Lydia

Pace ("Pace") certain worker's compensation benefits arising out of injuries she sustained

while working for Employer. Employer raises eleven claims of error. We affirm.
                                 Factual Background

      On October 4, 2002, Pace was employed by Employer as a waitress, bartender, and

banquet worker. As she was breaking down some tables for Employer, five to six table

toppers fell on her, throwing her back into another table and injuring her neck and right

shoulder. Immediately following her injury, Pace consulted a number of doctors regarding

her neck and shoulder and was referred to physical therapy and prescribed pain

medications. Eventually, Pace was referred to a Dr. Timothy Graven ("Dr. Graven"), who,

in August of 2004, performed surgery on Pace's neck. Following the operation, Pace was

referred back to a previous doctor, Dr. Theodore Rummel ("Dr. Rummel"), for an operation

on Pace's right shoulder. Pace was released from treatment by Dr. Rummel on November

17, 2005. All treatment for Pace's neck and right shoulder and temporary total disability

("TTD") resulting from these injuries until November 17, 2005 were authorized and paid

for as a worker's compensation benefit by Employer.

      Following her release from treatment, Pace continued to suffer from shooting pain

in her neck and down from her right shoulder. She also experienced numbness and cold

down her arm to her right index finger. Further, she was diagnosed with depression. For

a short period, Pace worked part-time at a restaurant carrying trays, but experienced

increased pain when working and was fired from the job. Pace also worked for a short

time for a kitchen setting out plates. Pace saw numerous doctors seeking treatment and

disability opinions as to her condition between her release from treatment in November of

2005 and a hearing on temporary benefits by the Division of Workers’ Compensation in



                                           2
2010. A hearing was held and a Temporary Award was issued regarding the extent to

which Pace was entitled to temporary benefits on November 30, 2010.

        Following the Temporary Award, Pace again underwent surgery on her neck

performed by Dr. Michael Chabot ("Dr. Chabot"). Dr. Chabot performed a two level

fusion. Following surgery, Pace reported having decreased neck pain but ongoing right

shoulder pain that was exacerbated by any kind of repetitive movement.

        The parties stipulated that Pace sustained a compensable work-related injury on or

about October 4, 2002, while working for Employer. They also stipulated that Pace timely

notified Employer of the injury and timely filed a claim. Further, they stipulated as to the

rate of compensation, the amount previously paid for TTD, and medical care. It was also

stipulated that Pace achieved Maximum Medical Improvement ("MMI") on August 25,

2011.

        A final hearing was conducted and the Final Award was issued by an ALJ with the

Division of Workers' Compensation in July of 2015 ("July 2015 Decision"). After an

appeal to the Commission, the findings of the ALJ's July 2015 Decision were unanimously

adopted but modified in two respects by the Commission: (1) the Commission

supplemented the award to provide necessary analysis regarding causation between Pace’s

work-related injury and her depression; and (2) the Commission granted TTD for a longer

duration than had been granted by the ALJ. As modified, the final decision found the

following with regard to Pace's entitlement to benefits:

        (1) Pace sustained her burden of proof that she injured her neck and right shoulder

        in the October 4, 2002 accident at work;

                                             3
        (2) Pace sustained her burden of proof that she is permanently and totally disabled

        ("PTD") as the result of her neck and right shoulder injuries coupled with her

        depressive symptoms;

        (3) Pace failed to prove Second Injury Fund liability as there was no evidence of

        permanent disability preceding the October 4, 2002 accident and injury;

        (4) Pace sustained her burden of proof that she is entitled to past temporary disability

        benefits from November 17, 2005 through August 24, 2011;1 and

        (5) Pace sustained her burden of proof that she is entitled to future medical treatment

        to treat her neck and right shoulder pain, as well as her depression.

Employer now appeals. Additional facts will be presented as necessary in the analysis

section below.

                                          Standard of Review

               "We ... review the findings and award of the Commission rather than
        those of the ALJ, to the extent that it departs from the ALJ's ruling." [Small
        v. Red Simpson, Inc., 484 S.W.3d 341, 344 (Mo. App. W.D. 2015).] "To the
        extent that the Commission affirms and adopts the ALJ's findings and
        conclusions, we review the ALJ's findings and conclusions." Id. We may
        modify, reverse, remand for rehearing, or set aside the award of the
        Commission only if we determine that the Commission acted without or in
        excess of its powers, that the award was procured by fraud, that the facts
        found by the Commission do not support the award, or that there was not
        sufficient competent evidence to warrant making the award. Section
        287.495.1
               "We review the whole record to determine whether there is sufficient
        competent and substantial evidence to support the award or if the award is
        contrary to the overwhelming weight of the evidence." Gleason v. Treasurer
        of State of Missouri–Custodian of Second Injury Fund, 455 S.W.3d 494, 497
        (Mo. App. W.D. 2015) (internal citation omitted). "This Court defers to the
        1
         The July 2015 Decision found that Pace was entitled to TTD benefits from January 3, 2011. This finding
was modified by the Commission to find that Pace was entitled to TTD benefits from November 17, 2005 through
August 24, 2011.

                                                       4
        Commission's factual findings and recognizes that it is the Commission's
        function to determine credibility of witnesses." Riley v. City of Liberty, 404
        S.W.3d 434, 439 (Mo. App. W.D. 2013) (quoting Hornbeck v. Spectra
        Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012)). "This Court may not
        substitute its judgment on the evidence, and when the evidence before an
        administrative body would warrant either of two opposed findings, the
        reviewing court is bound by the administrative determination, and it is
        irrelevant that there is supportive evidence for the contrary finding." Riley,
        404 S.W.3d at 439. "The Commission's determinations of law, however, are
        reviewed independently." Gleason, 455 S.W.3d at 497.

Lincoln Univ. v. Narens, 485 S.W.3d 811, 814-15 (Mo. App. W.D. 2016) (footnote

omitted).

        The overwhelming majority of Employer's arguments request this Court to disregard

this long standing standard of review and ask us to reweigh the evidence and find

Employer's witnesses to be more credible than the Employee's witnesses. This we cannot

and will not do.

                                                    Analysis

                                           Depression Causation

        Employer's first three points on appeal each challenge the Commission's decision

that Pace's depression constitutes a compensable injury under section 287.020.3.2 The

following evidence was presented to the Commission regarding Pace's depression

diagnosis and the causes of her depression.

        Dr. David Volarich ("Dr. Volarich") evaluated Pace in January of 2008 and

diagnosed her with having depression. At that time, he referred Pace to a psychiatrist for




        2
          All statutory references are to the Revised Statutes of Missouri 2000 as currently supplemented, unless
otherwise indicated.

                                                         5
further evaluation. Dr. Volarich testified in 2012 that Pace continued to suffer from

disabling depression. Dr. Barbara Markway ("Dr. Markway") evaluated Pace in February

of 2008 and reached the medical conclusion that Pace suffered from depression, triggered

by her 2002 accident and injury, which was exacerbated by her subsequent inability to

work.    Dr. Michael Jarvis ("Dr. Jarvis") examined Pace in November of 2008 and

concluded that Pace did not suffer from a depression as a result of her injuries but rather

was distressed by the workers’ compensation claim process. Dr. A.E. Daniel ("Dr.

Daniel"), a physician specializing in psychiatry, testified in the 2012 hearing regarding

temporary benefits that Pace has a depressive disorder that is disabling. He testified that

the pain resulting from Pace's October 4, 2002 accident and injury is the prevailing factor

in the development of Pace's psychiatric disorder. Without seeing Pace again, Dr. Jarvis

issued a supplemental report disagreeing with the conclusions of Dr. Daniel, concluding

that Pace has an adjustment disorder with a depressive mood related to the litigation

process rather than depression arising out of her work-related injury.

        The ALJ concluded after considering the evidence above that "[b]oth Dr. Daniel and

Dr. Jarvis agree that Ms. Pace suffers from depression related to the accident and injury of

October 4, 2002, although the doctors disagree on the exact diagnosis and the part that the

October 4, 2002 accident plays in the depression." The ALJ concluded that the depression

was caused by Pace's work injury and, thus, compensation for the depression and treatment

of the depression was warranted. The Commission, reviewing the ALJ's decision, found

that the ALJ did not apply the proper statutory test regarding causation. The Commission



                                             6
found that the appropriate test, pursuant to section 287.020.2 (RSMo 2000),3 requires that

for an injury to be compensable it must be related to work, which means that work was "a

substantial factor in the cause of the resulting medical condition or disability."

         The Commission then reviewed the evidence before the ALJ and adopted the ALJ's

express findings with regard to the persuasive force of the competing expert opinions on

the causation issue and adopted the ALJ's implied finding that Dr. Daniel was more

persuasive in his testimony regarding the cause of Pace's depression. The Commission

concluded that work was a substantial factor in causing her depression. The Commission

also noted that Employer, in arguing that Pace had not proven causation, did not present

facts or argument regarding why its expert should have been found to be more persuasive,

but only that its expert's opinion must be accepted to the exclusion of all others. The

Commission also noted that Employer repeatedly misstated the record in its arguments to

the Commission.

         Employer first argues, in Point One on appeal, that the Commission used the wrong

legal standard for the causation required to permit compensation for Pace's depression by

assuming that proof of depressive symptoms alone constituted proof of causation.

Employer also argues in Points Two and Three on appeal that there was not substantial

evidence supporting the Commission's finding regarding causation.




         3
            Claimant's 2002 injury was governed by the law then in effect, which stated that "[a]n injury is
compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the
cause of the resulting medical condition or disability." Section 287.020.2 RSMo (2000) (emphasis added). Future
citations to this section will be to the RSMo (2000) version.

                                                          7
                         Point One - Causation Legal Standard

       In Point One on appeal, Employer argues that the Commission used the wrong legal

standard when it found that Pace's depression was compensable. The claimant in a workers'

compensation case has the burden to prove all the essential elements of her claim, including

the causal connection between the injury and work. Angus v. Second Injury Fund, 328

S.W.3d 294, 299 (Mo. App. W.D. 2010).

       Determinations with regard to causation and work relatedness are questions
       of fact to be ruled upon by the Commission. Pursuant to the statute, "[a]n
       injury is clearly work related if work was a substantial factor in the cause of
       the resulting medical condition or disability."            Section 287.020.2.
       Nonetheless, an injury is not compensable merely because work was a
       triggering or precipitating factor. Awards for injuries "triggered" or
       "precipitated" by work are nonetheless proper if the employee shows the
       work is a "substantial factor" in the cause of the injury. Thus, in determining
       whether a given injury is compensable, a work related accident can be both
       a triggering event and a substantial factor.

Id. (internal quotations and citations omitted).

       Employer's Point One on appeal is perplexing as it claims the Commission erred in

finding that work was a substantial factor in Pace's injury because it "assumed proof of

depressive symptoms, alone, constituted proof of causation of that condition." Employer's

point has no merit as the Commission explicitly accepted as credible and persuasive the

expert medical testimony of Dr. Daniel and concluded from the evidence that work was a

substantial factor in causing Pace's depression. Dr. Daniel in his report and deposition

stated that, in his expert medical opinion as a psychiatrist, Pace suffers from depression

that was directly caused by the injuries she suffered while working for Employer. Dr.


                                              8
Daniel stated in his report that the onset of Pace's depression "is proximally related to the

work injury on October 4, 2002 and subsequent chronic pain and unemployment" and that

"the cause of Ms. Pace's psychiatric disorder is the work injury on October 4[,] 2002;

therefore, the work-related injury is the prevailing factor." Although not explicitly stated,

the Commission reasonably interpreted Dr. Daniel's opinion that work was the "prevailing

factor" as satisfying the "substantial" factor requirement, the legal standard that applies

here, which was reasonable, given that satisfying the "prevailing factor" standard is more

difficult than meeting the "substantial factor" standard. See Leake v. City of Fulton, 316

S.W.3d 528, 531-32 (Mo. App. W.D. 2010) ("prevailing factor" standard is a higher

standard than the previous "substantial factor" standard).

         Employer complains that the Commission engaged in no analysis regarding

causation. It is unclear to the Court what further analysis Employer believes was required.

"[T]he question of causation is one for medical testimony, without which a finding for

claimant would be based upon mere conjecture and speculation and not on substantial

evidence." Angus, 328 S.W.3d at 300 (quoting Elliott v. Kansas City, Mo., Sch. Dist., 71

S.W.3d 652, 658 (Mo. App. W.D. 2002)). The Commission considered the expert medical

opinions provided as to the causation issue and accepted as credible and persuasive

evidence that established work was a substantial factor in causing Pace's depression. This

is all the law requires.4 The Commission utilized the proper legal standard to determine

causation as to Pace's depression.


         4
           Employer's claim that the Commission's decision runs afoul of Wilhite v. Hurd is perplexing and without
merit. Disregarding that a different causation standard was in effect in 1967, the case holds that the mere existence
of a condition does not prove the condition was caused by work. 411 S.W.2d 72, 78 (Mo. 1967) (overruled on other

                                                          9
        Point One is denied.

     Points Two and Three - Depression Causation Supported by Substantial and
                               Competent Evidence

        Employer's Points Two and Three on appeal both argue that the Commission erred

because its finding of causation between Pace's work-related injury and her depression is

not supported by substantial and competent evidence. In Point Two, Employer only argues

that its expert, Dr. Jarvis, provided sufficient and competent evidence to prove that Pace

does not have depression but rather has an "adjustment disorder." In Point Three, Employer

attacks the medical opinions of Dr. Daniel and Dr. Markway and argues, as a matter of law,

their opinions cannot constitute substantial and competent evidence as to causation. For

ease of analysis we will consider the points in reverse order.

        It is a well-settled principle that the "Court defers to the Commission on issues

involving the credibility of witnesses and the weight to be given to their testimony." Dierks

v. Kraft Foods, 471 S.W.3d 726, 733 (Mo. App. W.D. 2015). "Determinations with regard

to causation and work-relatedness are questions of fact to be ruled upon by the

Commission, and the reviewing court may not substitute its judgment on the weight of the

evidence or on the credibility of witnesses for that of the Commission." Id. (quoting

Claspill v. Fed. Ex Freight East, Inc., 360 S.W.3d 894, 903 (Mo. App. S.D. 2012)).

        Where the right to compensation depends upon which of two conflicting
        medical theories should be accepted, the issue is peculiarly for the
        Commission's determination. When the evidence before the Commission
        would warrant either of two opposed findings, we are bound by the



grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)). Here, the Commission explicitly
accepted expert medical testimony that Pace's work injury was a substantial factor in causing her depression.

                                                     10
       Commission's determination despite supportive evidence for the contrary
       finding.

Id. (internal quotations and citations omitted).

       Dr. Daniel testified, and the ALJ found credible and persuasive, that "the injury

[Pace] sustained at work on October 4th, 2002 [ . . . . ] is the prevailing factor leading to

subsequent development of her psychiatric disorder." He also testified that although a

number of other factors, including life events and other medical issues, likely contribute to

Pace's depression, her work injury was the prevailing cause of Pace's current depression.

In cross-examination, Dr. Daniel admitted that there were a few conditions suffered by

Pace unrelated to her work injury of which he was unaware when he made his diagnosis of

depression, including knee and back complaints following the workplace injury, but the

Commission found that this did not sufficiently undermine his opinion as to causation. A

report was also entered into evidence from Dr. Markway, who also conducted a

psychological evaluation and similarly concluded that Pace suffers from depression that

was triggered by her work injury. Dr. Markway, however, did not offer any opinion as to

whether the injury was a prevailing or substantial factor in causing Pace’s depression. As

explained in Point One, Employer’s expert, Dr. Jarvis, concluded that Pace’s depression

was not caused by her work-related injury but by the lengthy worker’s compensation and

litigation processes.

       Where two experts provide medical opinions regarding causation, this Court's role

is not to second-guess the Commission, as issues of medical causation are issues

"peculiarly for the Commission's determination." Dierks, 471 S.W.3d at 733. Information


                                             11
that Dr. Daniel did not have while examining Pace affects the weight that should be

afforded his opinion, but that determination is left to the Commission. See id. The

Commission found that Dr. Daniel's opinion remained persuasive. The ALJ and the

Commission clearly found Dr. Daniel's testimony persuasive that Pace's depression was

caused by the work-related injury. There is substantial and competent evidence in the

record to support that determination.

       Point Three is denied.

       In Point Two on appeal, Employer merely states the reasons why it believes its

expert, Dr. Jarvis, was more persuasive. Even where another expert's opinion would have

supported a different finding as to causation, we are bound by the Commission's

determination, which we have already decided was supported by substantial and competent

evidence. See id. That Dr. Jarvis came to a contrary conclusion regarding causation is

inconsequential.

       Point Two is denied.

  Points Four and Five - Future Medical Treatment for Neck, Right Shoulder, and
                                   Depression

       In Point Four on appeal, Employer argues the Commission erred in granting Pace

future medical care for her neck and right shoulder because the decision was contrary to

the overwhelming weight of the evidence as her physicians found that she had reached

MMI for her neck and shoulder injuries and did not require additional treatment or medical

care under section 287.140.1.




                                           12
       The following evidence was before the Commission relating to Pace's pain in

connection with her neck and shoulder. In June of 2004, Dr. Graven evaluated Pace

regarding her complaints of neck pain that radiated down into her right shoulder, arm and

hand. Dr. Graven performed a selective nerve root block that provided temporary relief

but excruciating pain returned in 12-24 hours. In September of 2004, Dr. Graven again

noted Pace’s continued pain and noted that Pace would continue her TTD status. After a

cervical fusion was performed, Dr. Graven noted that Pace had trapezial pain and

prescribed Pace Lidoderm patches and a Percocet prescription. The pain continued through

early 2005, at which time Pace was referred to Dr. Theodore Rummel ("Dr. Rummel") to

address a tear in her right rotator cuff. Dr. Rummel also noted in his first meeting with

Pace that she had a burning pain in her trapezius area and he recommended that she receive

pain management. Subsequent reports by Dr. Rummel address the healing of Pace's rotator

cuff but are silent regarding whether Pace had continued pain. Dr. Rummel testified that,

as of November of 2008, Pace's trapezius was a daily source of pain for her.

       Dr. Volarich testified that after Pace had surgery on her shoulder and neck, Pace

continued to have significant pain that originated in her neck. In his report, dated July 20,

2012, Dr. Volarich found that to maintain her current state, Pace will require ongoing care

for her pain. He recommended that Pace receive future treatment at a pain clinic for pain

related to Pace's cervical spine and right shoulder girdle. This would include steroid

injections, nerve blocks and trigger point injections. Dr. Volarich also testified that it is

difficult to know whether Pace's symptoms are due to shoulder pathology alone or if they

come from the cervical spine. This is because Pace had a pathology in both areas.

                                             13
       Dr. Chabot, an orthopedic spine specialist who operated on Pace, testified that, as

of August 25, 2011, Pace had improved motion in her shoulder and a reduction in pain

complaints. Dr. Chabot believed Pace had reached MMI as of that date. Dr. Richard

Howard ("Dr. Howard"), specializing in hand and upper extremity microsurgery, submitted

an opinion letter, dated January of 2011, in which he stated that Pace had persistent

complaints after her rotator cuff and neck surgeries in 2008 and continued pain in her AC

joint.5 He noted that in 2011 Pace continued to have pain in the top of her shoulder, along

with numbness and tingling in her fingers, and a subcrominal injection from Dr. Chabot

had provided no relief. He also noted that Pace has pain in her trapezius. Dr. Howard

concluded that it was his opinion that Pace's symptoms were "more of a problem with neck

pain" and she was at MMI for her right shoulder.

       The ALJ found, as adopted by the Commission, that Pace was entitled to future

medical treatment to treat her neck and right shoulder pain. As support, the ALJ cited Dr.

Volarich's testimony regarding recommended pain treatment that was consistent with the

treatments she had received from her treating physicians to alleviate the pain she still has

in her right shoulder and neck.

       The Missouri Workers' Compensation Act includes an allowance for future medical

treatment for an injured worker pursuant to section 287.140.1, which provides in part:

       In addition to all other compensation ..., the employee shall receive and the
       employer shall provide such medical ... treatment, including nursing,
       custodial, ambulance and medicines, as may reasonably be required after the
       injury or disability, to cure and relieve from the effects of the injury.


       5
           The "AC" joint is the acromioclavicular joint, located in the top of the shoulder.

                                                          14
ABB Power T&D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. W.D. 2007); see also

Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 518 (Mo. App. W.D. 2011). It is not

necessary for a claimant to provide conclusive evidence as to what future medical treatment

will be needed; rather, the claimant must demonstrate a "reasonable probability" that future

medical treatment will be necessary due to her work-related injury. Kempker, 236 S.W.3d

at 52-53. "An employer is required to compensate for future medical care only if 'the

evidence establishes a reasonable probability that additional medical treatment is needed

and, to a reasonable degree of medical certainty, that the need arose from the work injury.'"

Id. at 53 (quoting Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 85 (Mo. App. S.D. 2006)).

       We find substantial and competent evidence in the record to support the

Commission's finding that Pace sustained her burden of proof for future medical treatment

regarding her shoulder and neck. The record is clear that Pace had ongoing and persistent

pain resulting from her work-related injury. Pace continuously sought treatment for pain

related to both her neck and shoulder. Many doctors have evaluated Pace and there is

disagreement amongst them as to the exact cause of her pain. This is not surprising as there

was also testimony that sometimes it is difficult to determine the exact origin of pain in the

area of Pace's injury. Regardless of whether her pain originates in her shoulder or neck,

the fact remains that the evidence before the Commission supports the Commission's

conclusion that there is a reasonable probability that Pace will need ongoing treatment and

pain management related to her work-related injuries to her shoulder and neck, and she is

entitled to such.



                                             15
       In addition, Pace's entitlement to future medical benefits is not impacted by the fact

she had reached MMI with regard to either her shoulder or neck. "Future medical care

should not be denied simply because an employee may have achieved maximum medical

improvement." Greer v. SYSCO Food Servs., 475 S.W.3d 655, 673 (Mo. banc 2015).

"[T]he statute contemplates medical treatment that gives comfort or relief even though a

cure is beyond avail." Id. The Commission here found that there is a reasonable probability

that based on expert medical testimony that Pace will need future medical treatment for her

injuries. The statute provides for such. See id. (future medical treatment for pain provided

by section 247.140.1 even if claimant had reached MMI with respect to his injury).

       Point Four is denied.

       In Point Five on appeal, Employer similarly argues that the Commission erred in

finding that Pace is entitled to future medical care for her depression because that finding

is not supported by substantial evidence.

       In support of its argument, Employer again recites its preferred diagnosis from Dr.

Jarvis, which concluded that Pace only suffers from an adjustment disorder with a

depressive mood, and, in a conclusory fashion, opines that Dr. Daniel's testimony that Pace

does indeed suffer from depression caused by her work-related injury is not substantial

evidence. We have already found in points one through three above that Dr. Daniel's

testimony constituted substantial and competent evidence that Pace suffers from depression

and that her work-related injury was a substantial factor in causing that depression. Dr.

Daniel testified that Pace's depression, caused by her work injury, is ongoing and, he

recommended that Pace receive medication management and psychotherapy for her

                                             16
depression. This is sufficient evidence to support the Commission's finding that there is a

reasonable probability that Pace will need future treatment for her depression. We need

not repeat again the citation to the various authorities previously set forth for this

proposition.

       Point Five is denied.

                 Point Six - Temporary Total Disability - Stipulation

       In Point Six on appeal, Employer argues the Commission erred "as a matter of law

in interpreting the parties' stipulation that, for purposes of calculating benefits" Pace

reached MMI on August 25, 2011 "as an admission [that Pace] remained in need of

treatment for her work injuries" and was, thus, totally disabled from November 17, 2005

through August 24, 2011 for the purposes of section 278.170.

       "Temporary disability awards are intended to cover a healing period." Greer, 475

S.W.3d at 667 (quoting Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. E.D.

1985)). "[TTD] benefits 'should be awarded only for the period before the employee can

return to work.'" Id. (quoting Cooper v. Med. Ctr. of Independence, 955 S.W.2d 570, 575

(Mo. App. W.D. 1997)). "A temporary award is not 'intended to encompass disability after

the condition has reached the point where further progress is not expected.'" Id. (quoting

Williams, 694 S.W.2d at 489). "This is reflected in the language that a temporary total

disability lasts only 'during the continuance of such disability.'" Id. (quoting Cardwell v.

Treasurer of the State of Mo., 249 S.W.3d 902, 909 (Mo. App. E.D. 2008)).

       It is not disputed by Employer that the parties did stipulate before the ALJ that Pace

reached MMI on August 25, 2011.               Employer, however, mischaracterizes the

                                             17
Commission's view of that stipulation. The Commission's decision explicitly recognizes

that the parties disputed whether Pace was temporarily and totally disabled from November

17, 2005 to August 24, 2011. In granting Pace TTD for the whole of this time period, the

Commission credited Pace's testimony that she was not able to work after Dr. Rummel

released her from treatment in November of 2005. See Patterson v. Eng'g Evaluations

Inspections, Inc., 913 S.W.2d 344, 347 (Mo. App. E.D. 1995) (a layman is capable of

forming an opinion as to whether she is capable of working and is sufficient evidence upon

which to base an award of TTD). The Commission supports this finding with citation to

additional evidence from Dr. Chabot that Pace came to him in 2011 with pain complaints

identical to her complaints when she saw him in October 2009. The Commission also cites

as additional support the "voluminous evidence of additional evaluation and treatment

[Pace] sought and required after November 30, 2010, as a result of the effects of her work

injury."

       The Commission's only reference to the parties' stipulation is in a footnote in its

decision and states the following: "[t]he parties' stipulation that employee did not reach

MMI until August 25, 2011, strikes us as an implicit acknowledgment that Dr. Rummel's

release in November 2005 was premature, and that employee remained in need of

additional and significant medical care as a result of the work injury." Contrary to

Employer's argument, the Commission did not treat the stipulation as conclusive proof that

Pace remained in need of care but only as additional evidence bolstering the Commission's

independent finding that Pace qualified for TTD during the disputed time period.

       Point Six is denied.

                                           18
   Point Seven - Temporary Total Disability - Engaged in Rehabilitative Process

       In Point Seven on appeal, Employer argues the Commission erred in finding that

Pace was engaged in the "rehabilitative process" between November 17, 2005 and January

2, 2011 because that finding is contrary to the overwhelming weight of the evidence.

       Pursuant to section 287.149, TTD or partial disability benefits are to be paid

"throughout the rehabilitative process." Whether a treatment is "part of the rehabilitative

process is a fact question for the commission."       Greer, 475 S.W.3d at 671.        The

Commission found that Pace persuasively testified that she continually sought help for her

condition (i.e. pain related to her work-related injuries) after she was released by Dr.

Rummel on November 17, 2005. The Commission found that the evidence supported

Pace's testimony that the pain related to her work injury "remained consistent and unabated

throughout that period." The Commission also found that, during this time, Pace had

"ongoing and severely limiting complaints and symptoms referable to the work injury

which affected her cervical spine, dominant right arm, and body as a whole in the form of

depression."

       The evidence supports the Commission's decision that from Pace's release from Dr.

Rummel in November of 2005 to January 2, 2011, Pace was consistently engaged in the

rehabilitative process. As recognized by the Commission, the parties' stipulation that Pace

did not reach MMI for her work related injuries until August 25, 2011 is some evidence

that Pace's release from care in 2005 was premature. Although not conclusive, it does

support Pace's testimony, found credible by the Commission, that during the entire time



                                            19
period in dispute she was suffering from pain related to her work injury such that she could

not work.

       In Greer, the Missouri Supreme Court addressed the meaning of "rehabilitative

process" and its relation to MMI. 475 S.W.3d at 670. In that case, the employee suffered

from tarsal tunnel syndrome related to a work-related injury starting in February 2007. Id.

His treating doctor found that the employee had reached MMI regarding that injury in April

of 2007, and the employee then returned to work. Id. The employee, however, continued

to experience symptoms that impacted his ability to work. Id. The employee then went to

additional doctors and sought additional treatment. Id. The Supreme Court found that all

of these actions, including actions taken after his doctor had found his injury had reached

MMI, were "intended to restore Greer to a condition of health or normal activity by a

process of medical rehabilitation." Id. In addition, whether the treatment is successful it

is "immaterial" to the determination of whether a treatment is part of the rehabilitative

process. Id. at 670-71. As explained by Greer,

       [i]t is plausible, and likely probable, that the maximum medical improvement
       date and the end of the rehabilitative process will coincide, thus, marking the
       end of the period when TTD benefits can be awarded. However, when the
       commission is presented with evidence, as here, that a claimant has reached
       maximum medical improvement yet seeks additional treatment beyond that
       date for the work-related injury in an attempt to restore himself or herself to
       a condition of health or normal activity by a process of medical rehabilitation,
       the commission must make a factual determination as to whether the
       additional treatment was part of the rehabilitative process. If the commission
       determines the additional treatment was part of the claimant's rehabilitative
       process, then he or she is entitled to TTD benefits pursuant to section
       287.149.1 until the rehabilitative process is complete. Once the rehabilitation
       process ends, the commission then must make a determination regarding the
       permanency of a claimant's injuries.


                                             20
Id. at 668-69.

         Like Greer, Pace continued to seek treatment for pain related to her work-related

injury despite the fact that multiple doctors had found she had reached MMI. As explained

above, Pace's medical records support her claim that she continued to experience pain

throughout the disputed time period and sought treatment for that pain.6 The Commission

made a factual determination that the treatment sought by Pace was an attempt by her to

restore herself to health or normal activity and, thus, was part of the rehabilitative process

associated with her work-related injury. This finding by the Commission was not against

the weight of the evidence, as the evidence marshalled by Employer does not take into

account Pace's continuous seeking of treatment for pain and her own testimony, found

credible by the Commission, that she was not able to work as a result of that pain.

         Point Seven is denied.

  Point Eight - Modification of the Temporary Award Regarding Temporary Total
                                  Disability Benefits

         In Point Eight on appeal, Employer argues the Commission erred in modifying the

ALJ's finding in the temporary award that Pace was not entitled to TTD following

November 17, 2005, because Pace failed to present additional significant evidence on that

issue at the final hearing that was not before the ALJ at the time she issued the temporary

award.




         6
          Employer's argument completely neglects that, in addition to shoulder and neck problems and pain
associated therewith, the evidence showed the Pace suffered from depression that arose out of her work injury
throughout this time period and was seeking treatment for that depression.

                                                        21
         In support of this argument, Employer relies on Jennings v. Station Casino St.

Charles, 196 S.W.3d 552 (Mo. App. E.D. 2006). In Jennings, the Court explained that

even though the law clearly contemplates that an ALJ may render a decision at a final

hearing which differs from the temporary award, in order to do so the final award must find

there was "additional significant evidence" not before the ALJ at the temporary award that

was presented for consideration in the final award. Id. at 558.

         This argument was raised before the Commission, and the Commission found that

there was, in fact, additional significant evidence presented at the final award hearing to

support the modification of the temporary award. The Commission cited "voluminous

evidence of additional evaluation and treatment [Pace] sought and required after November

30, 2010," the date of the temporary award. This includes a record from Dr. Chabot that

indicated that, as of January 3, 2011, Pace was presenting with the same complaints and

symptoms that she had in October of 2009. The Commission also cites as additional

significant evidence Pace's testimony in the final award hearing regarding her inability to

work throughout the disputed time period.

         Employer recognizes the "additional significant evidence" cited by the Commission,

but argues that Pace's "subjective complaints, alone, cannot support the TTD award."

Employer cites two statutes to support this bold assertion. A review of the statutes,

however, reveal that they have nothing to say at all about whether a subjective experience

of pain can support a finding of TTD.7 Employer has cited nothing that supports its


         7
           Employer cites section 287.020.6, which is the definition of total disability as the "inability to return to
any employment and not merely mean inability to return to the employment in which the employee was engaged at
the time of the accident." Employer also cites section 287.070 which sets out the method of payment for TTD.

                                                          22
argument that subsequent visits to a doctor regarding pain, subsequent reports of those

visits, and additional testimony elicited from a claimant, including multiple failed attempts

to work in even part-time positions, are insufficient to meet the "additional significant

evidence standard." We agree with the Commission that the subsequent evidence cited by

the Commission supports its modification of the temporary award.

       Point Eight is denied.

          Points Nine and Ten - Finding of Permanent and Total Disability

       In Point Nine on appeal, Employer argues that the Commission erred in finding that

Employee was PTD because its finding is not supported by substantial evidence. In Point

Ten, Employer argues that the Commission failed to use the appropriate statutory standards

governing PTD under section 287.020.6. As these points are interrelated, we will consider

them together.

              Section 287.020.6 defines "total disability" as the "inability to return
       to any employment and not merely [the] inability to return to the employment
       in which the employee was engaged at the time of the accident." The test for
       permanent total disability is the worker's ability to compete in the open labor
       market because it measures the worker's potential for returning to
       employment. The ability to compete in the open labor market hinges on
       whether, in the ordinary course of business, any employer would be
       reasonably expected to hire the individual given his or her present physical
       condition. Employability is a matter within the [c]ommission's expertise.
       [Employee] bears the burden of proving he is entitled to PTD benefits

Greer, 475 S.W.3d at 664-65 (internal citations and quotation marks omitted).

       The Commission found that Pace sustained her burden of proof that she is PTD as

the result of her neck and right shoulder injuries coupled with her depressive symptoms. It




                                             23
was stipulated that Pace had reached MMI as of August 25, 2011, which is the date at

which PTD must be established. See Cardwell, 249 S.W.3d at 908-10.

       Dr. Volarich testified regarding his medical opinion as to Pace's ability to be

employed on the open labor market. Dr. Volarich testified that, in his opinion, Pace has a

fifty percent permanent partial disability of the body as a whole rated at the cervical spine.

This rating took into account all of her neck pain syndrome, lost motion, and ongoing right

upper extremity paresthesias with radicular symptoms. He also found a forty percent

permanent partial disability of the right upper extremity at the shoulder due to impingement

and a rotator cuff tear. In addition, Dr. Volarich found that Pace suffers from depression.

Dr. Volarich testified that Pace

       cannot be reasonably expected to perform on an ongoing basis eight hours a
       day, five days a week throughout the work year. It was also my opinion that
       she was unable to continue in her line of employment that she last held as a
       waitress for the Jefferson City Country Club nor could she be expected to be
       [sic] to work on a full-time basis in a similar job. After review of additional
       medical records and my re-examination on July 20, 2012, it was my opinion
       that Ms. Pace was permanently and totally disabled as a direct result of the
       work related injury of 10/4/02 standing alone.

In addition, Dr. Daniel, who conducted a psychiatric evaluation of Pace, concluded as well

that "due to the combined impact of the psychiatric disorders and physical conditions, Ms.

Pace is unable to compete in the open labor market."

       The Commission also found persuasive the testimony of Gary Weimholt ("Mr.

Weimholt"), a vocational expert, who relied primarily on the findings of Dr. Volarich and

Dr. Daniel in reaching his opinions. Mr. Weimholt issued an initial report regarding Pace's

vocational disability in May of 2008 and issued a supplemental report in 2013. Mr.


                                             24
Weimholt testified that Pace would not be employable in the open labor market due to her

work injury related to her cervical spine and right shoulder. The Commission found that

Pace's work restrictions, lack of transferable work skills, and inability to engage in regular

sustained activity combined to establish that she is unemployable in the open labor market.

       "Under section 287.020, the term 'total disability' is defined as the ‘inability to return

to any employment and not merely ... inability to return to the employment in which the

employee was engaged at the time of the accident." Scott v. Treasurer of State-Custodian

of Second Injury Fund, 417 S.W.3d 381, 386 (Mo. App. W.D. 2014). "Any employment"

means any "reasonable or normal employment or occupation."                Id. at 387.    "'Total

disability' does not require the employee to be completely inactive or inert, rather, it means

the inability to return to any reasonable or normal employment." Id. Further, the question

of whether a claimant is totally and permanently disabled is "not exclusively a medical

question" and the Commission "need not rely exclusively on the testimony of medical

experts; rather, it may consider all the evidence and the reasonable inferences drawn from

that evidence." Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 802 (Mo. App. W.D.

2011). The Commission may even rely on testimony from the claimant herself. See Pavia

v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo. App. S.D. 2003). "The testimony of

... lay witnesses as to facts within the realm of lay understanding can constitute substantial

evidence of the nature, cause, and extent of the disability, especially when taken in

connection with, or where supported by, some medical evidence." Id.

       "The Commission is not bound by the expert's exact percentages and is free to find

a disability rating higher or lower than that expressed in medical testimony. The extent

                                              25
and percentage of disability is a finding of fact within the special province of the Industrial

Commission." Lewis, 356 S.W.3d at 802 (quoting Pavia, 118 S.W.3d at 234) (internal

citations omitted); see also Greer, 475 S.W.3d at 665 ("Employability is a matter within

the [c]ommission's expertise….")

       Employer argues that the Commission's finding that Pace was permanently and

totally disabled is not supported by substantial evidence because the vocational expert who

testified for Pace, Mr. Weimholt, formed an opinion without seeing all of Pace's medical

records and without reviewing the 2010 hearing transcript.           In his deposition, Mr.

Weimholt admitted that he relied upon the diagnoses and opinions of Dr. Volarich and Dr.

Daniel and did not review the reports from any other doctors who had seen Pace. Assuming

that Mr. Weimholt made a decision without all the pertinent information and that this

makes his testimony not credible, which is not necessarily the case, Employer ignores other

substantial evidence before the Commission. In addition to the reports and deposition

testimony of Drs. Volarich and Daniel, both of whom concluded that that they do not

believe Pace is employable in an open and competitive labor market, the Commission also

credited Pace's testimony to the same effect.

       It is undisputed that the experts hired by Employer and medical experts relied upon

by them concluded differently. This, however, does not mean that the Commission's

decision is not supported by competent and substantial evidence. "This Court 'may not

substitute its judgment on the evidence,' and when the 'evidence before an administrative

body would warrant either of two opposed findings, the reviewing court is bound by the

administrative determination, and it is irrelevant that there is supportive evidence for the

                                              26
contrary finding.'" Greer, 475 S.W.3d at 665 (quoting Hornbeck v. Spectra Painting, Inc.,

370 S.W.3d 624, 629 (Mo. banc 2012)). Findings as to the extent and percentage of

disability are findings of fact within the special province of the Commission and where, as

we have here, the Commission's decision is supported by the credible testimony of the

claimant herself and supported by medical evidence from two medical experts, also found

credible by the Commission, this Court must and does defer to the Commission. See Lewis,

356 S.W.3d at 802; see also Greer, 475 S.W.3d at 665.

       Point Nine is denied.

       Employer's argument in Point Ten on appeal that the Commission failed to utilize

the appropriate statutory standards governing permanent and total disability is unfounded.

Employer complains that the Commission relied on the fact that Pace underwent additional

neck surgery and had ongoing, non-operable, subjective right shoulder complaints and

psychiatric symptoms to find that she was PTD. This is true in part. As explained above,

the Commission found that Pace is disabled "as the result of her neck and right shoulder

injuries coupled with her depressive symptoms." The Commission also noted that, since

2010, Pace has even less range of motion in her neck and continued symptoms, including

pain, for which no physician has recommended additional surgical intervention.            A

reasonable inference from this finding is that the pain will continue and will remain an

obstacle to employment.

       Dr. Volarich, Dr. Daniel, and Pace herself testified that, as a result of her work

injury, she is unable to participate and find work in the open and competitive labor market.

The Commission explicitly found that "Ms. Pace's restrictions, lack of transferable work

                                            27
skills, and inability to engage in regular sustained activity combined to establish that Ms.

Pace is unemployable in the open labor market." The Commission applied the appropriate

legal standard as it answered the question whether, in the ordinary course of business, any

employer would reasonably be expected to hire the worker in her physical condition.

Lewis, 356 S.W.3d at 800; see also Greer, 475 S.W.3d at 664-65. The Commission

determined that the answer is no and that determination is fully supported by the record.

       Point Ten is denied.

                       Point Eleven - Second Injury Fund Liability

       In Point Eleven on appeal, Employer argues the Commission erred in holding

Employer liable for PTD benefits because the Second Injury Fund (the "Fund") is liable,

in that Pace's PTD arose from all her injuries and conditions, both work and non-work

related.

       The Fund was created "to encourage the employment of individuals who are already

disabled from a preexisting injury, regardless of the type or cause of that injury." Treasurer

of State–Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013).

The Fund accomplishes this objective by ensuring that an employer will only be

responsible for a disability that results from an injury attributable to that employer, and

"[a]ny disability attributable to the combination of the work injury with preexisting

disabilities is compensated, if at all, by the fund." Id.

       The Commission found there was no Fund liability because Pace did not suffer from

a preexisting disability prior to her October 4, 2002 work injury. This conclusion is

supported by Dr. Volarich who reported that, prior to her work injury, Pace's only

                                              28
preexisting diagnosis was for a minor cervical strain, which was resolved and

asymptomatic, and that she had no other preexisting disability. Dr. Daniel found that, prior

to her work injury, Pace did not have a preexisting psychiatric disorder.

       Employer does not even attempt to argue that Pace suffered from a preexisting

disability but argues only that her PTD is the result of her work-related injuries combined

with her back and knee conditions. This is insufficient to create Fund liability. As there is

no evidence in the record to support that Pace had a preexisting disability at the time she

was injured, the Commission did not err in finding the Fund was not liable.

       Point Eleven is denied.




                                        Conclusion

       The Final Award of the Commission is affirmed.




                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                             29
