                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION ONE

SHELBY PATTERSON,                             )      NO. ED101451
                                              )
       Respondent,                            )
                                              )
vs.                                           )
                                              )      Appeal from the Labor and Industrial
                                              )      Relations Commission
CENTRAL FREIGHT LINES,                        )
                                              )
       Respondent,                            )
                                              )
       and                                    )
                                              )
TREASURER OF THE STATE OF                     )
MISSOURI, AS CUSTODIAN OF                     )
THE SECOND INJURY FUND,                       )
                                              )
       Appellant.                             )      FILED: January 20, 2015

                                            OPINION

       The Missouri State Treasurer, as custodian of the Second Injury Fund, appeals the

decision of the Labor and Industrial Relations Commission finding the Fund liable for permanent

total disability benefits in favor of Shelby Patterson. We affirm.

                                           Background

       Mr. Patterson was employed as a truck driver for Central Freight Lines when, in

November 2008, he slipped and fell and injured his lumbar spine while cleaning an oil spill in his

employer’s warehouse. He filed this claim for workers compensation benefits stemming from

that injury. In March 2009, Patterson underwent spinal surgery, specifically an L3-4
decompressive laminectomy and discectomy. The procedure was successful, but Patterson

continued to experience pain, incontinence, erectile dysfunction, and difficulty walking. Despite

these ongoing symptoms, Patterson was deemed at maximum medical improvement (MMI) in

January 2010.

       Although Patterson had not previously been diagnosed with any psychological

conditions, he had a difficult history: an absent alcoholic father, academic and behavioral

problems, years in foster care and juvenile detention, a felony conviction, seven years in prison,

and strained familial relationships. As a result of his injury, surgery, and persisting symptoms,

he became depressed and was referred to a psychiatrist in August 2009. By the time of the

disability hearing in July 2013, he was essentially a recluse, physically unable to “do much of

anything for himself” and psychologically incapacitated by depression and anxiety.            The

voluminous expert testimony about his physical and psychiatric conditions can be summarized as

follows.

       Medical Experts

       Dr. Cantrell, a physiatrist, conducted an independent medical examination (IME) of

Patterson in June 2009 (three months post-operative) and became his treating physician the

following month. It was Cantrell who declared MMI in January 2010. He assigned Patterson a

permanent partial disability (PPD) rating of 30% of the body as a whole (BAW) and released

him for sedentary work. Subsequently, Cantrell reviewed additional records revealing a history

of back pain and degenerative changes pre-dating Patterson’s work injury, causing Cantrell to

revise his PPD rating attributable to the work injury to 10%. In late 2010, Cantrell released

Patterson for work with a 50-pound lifting restriction.




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           Several of the experts noted that Patterson seemed to exaggerate his symptoms. Dr.

Graham, a pain management specialist, opined that Patterson’s physical complaints could not be

explained by his disc surgery and suspected that his psychiatric diagnosis (described below)

“may be a major cause of his subjective complaints.” Dr. Peeples, a neurologist, also opined that

Patterson’s complaints could not be explained by his work injury or disc surgery and suspected

psychiatric dysfunction as the prevailing cause of his disability.

           Dr. Poetz performed an IME in January 2011 and rated Patterson’s various disabilities

(all PPD/BAW) as follows: 5% for his pre-existing lumbar condition, 40% for the work-related

injury to the lumbar spine, 20% for depression and anxiety, 20% for urinary incontinence, and

10% for erectile dysfunction. Poetz opined that all but the pre-existing lumbar condition (5%)

were attributable to the work injury and together rendered Patterson permanently and totally

disabled (PTD).

           Psychiatric

           Dr. Bassett, Patterson’s treating psychiatrist, diagnosed Patterson with “depression with

psychotic features” and prescribed psychiatric pharmaceuticals. As Patterson’s treating

psychiatrist and fiduciary, Bassett declined to provide a formal opinion as to the cause of

Patterson’s condition. But he opined clinically that Patterson’s symptoms were severe enough to

hinder employment, particularly when combined with the embarrassment of incontinence.

Bassett expressed concern that Patterson would “psychiatrically decompensate” in a work

setting.

           Dr. Stillings, also a psychiatrist, conducted an IME in July 2010. He diagnosed Patterson

with several pre-existing psychiatric conditions stemming from his difficult personal history and

assigned a corresponding aggregate pre-existing psychiatric PPD of 32.5% BAW. Stillings then




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opined that Patterson’s work injury added another 5% PPD/BAW to his psychiatric disability.

Stillings explained that Patterson’s tendency to exaggerate his symptoms was consistent with his

psychiatric profile.   He rated Patterson’s Global Assessment of Functioning at 65/100 and

concluded that Patterson has a limited ability to maintain employment due to psychiatric

conditions.

       Dr. Liss conducted an IME in July 2012 and diagnosed Patterson with clinical

depression. He opined that the psychiatric disability and the work injury each alone could result

in PTD and that the combination of the two is even greater. However, noting that Patterson was

employed and psychologically functional prior to the work injury, Liss concluded that the

entirety of his PTD was attributable to the work injury.

       Vocational

       Vocational expert Bob Hammond opined that Patterson is employable but unmotivated.

Vocational expert James England opined that Patterson is PTD as a result of the combination of

his physical limitations and psychiatric issues.

       Administrative Findings

       Both the administrative law judge (ALJ) and the Commission found Stillings’s opinion

highly persuasive. The ALJ found that Patterson had a pre-existing psychiatric PPD of 10% that

was aggravated another 5% by the work injury. With regard to Patterson’s lumbar condition, the

ALJ found that Patterson had a pre-existing PPD of 5% and sustained a PPD of 40% as a result

of the work injury. As relevant to this appeal, the ALJ concluded that the combination of

Patterson’s work injury PPDs (40% lumbar and 5% psychiatric) and pre-existing PPDs (5%

lumbar and 10% psychiatric) was insufficient to reach PTD and thus trigger Fund liability.




                                                   4
        The Commission partially adopted and partially modified the ALJ’s award. The

Commission agreed that Patterson suffered a PPD of 45% from his work injury.1 That finding is

not challenged on appeal. However, the Commission gave even greater weight to Stillings’s

opinion and rated Patterson’s pre-existing psychiatric PPD at 30%. Combining the two, the

Commission concluded that Patterson was PTD, so the Fund was liable for PTD benefits. The

Treasurer appeals, asserting that the Commission erred by supplanting the expert testimony with

its own lay opinion as to the cause of Patterson’s psychiatric disability and PTD.

                                         Standard of Review

        Our standard of review is set forth in §287.495.1. An appellate court shall only review

questions of law and may modify, reverse, remand or set aside an award only if the Commission

acted without or in excess of its powers, the award was procured by fraud, the facts found by the

Commission do not support the award, or there was not sufficient competent evidence in the

record to warrant the making of the award.          Id. In the absence of fraud, the findings of fact

made by the Commission within its powers shall be conclusive and binding. Id.

        This court will uphold the Commission’s award if it is supported by competent and

substantial evidence and is not contrary to the overwhelming weight of the evidence. Hampton

v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. 2003). The Commission, as the finder of

fact, is free to believe or disbelieve any evidence. Molder v. Missouri State Treasurer, 342

S.W.3d 406, 409 (Mo. App. W.D. 2011). We defer to the Commission's findings as to weight

and credibility of testimony and are bound by its factual determinations. Id. The Commission

need not defer to ALJ findings but is authorized to reach its own decisions. Id. We review the

findings of the Commission and not those of the ALJ. Id. at 410. However, this court reviews


1
  Although the ALJ assigned 40% PPD to the lumbar injury alone, the Commission included Patterson’s
incontinence in that same figure, thus awarding coverage for future medical treatment for that condition.


                                                    5
questions of law independently and is not bound by the Commission’s conclusions of law or its

application of the law to the facts. Grubbs v. Treasurer of Missouri as Custodian of Second

Injury Fund, 298 S.W.3d 907, 910 (Mo. App. E.D. 2009).

                                            Discussion

       The determination of whether a claimant is PTD is based upon the claimant’s ability to

compete in the open labor market. Blackshear v. Adecco, 420 S.W.3d 678, 681 (Mo. App. E.D.

2014). The primary determination is whether an employer can reasonably be expected to hire the

employee, given his present physical condition, and reasonably expect the employee to

successfully perform the work. Id.

       A claimant’s entitlement to disability compensation from the Fund is governed by

§287.220.2. A claimant must prove either (1) that he is PTD due to the combination of his

present compensable injury and his pre-existing partial disability or (2) that the combination of

his present compensable injury and his pre-existing PPDs create a greater overall disability than

the sum of the disabilities independently. Blackshear, 420 S.W.3d at 681. In deciding whether

the Fund has any liability, the first determination is the degree of disability from the last injury.

Id. If the claimant's last injury alone rendered him PTD, then pre-existing disabilities are

irrelevant, the Fund has no liability, and the employer is responsible for the entire amount. Id. If

the claimant’s last injury alone does not render him PTD, then, to obtain compensation from the

Fund, the claimant must show that he suffers from a pre-existing PPD of such seriousness as to

constitute a hindrance or obstacle to employment. §287.220.2. The focus of the inquiry is not

on the extent to which the condition caused difficulty in the past but on the potential that it could

combine with a work injury to cause a greater degree of disability than would have resulted

without it. Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. E.D. 2007). As an




                                                 6
evidentiary matter, PPD and PTD must be “demonstrated and certified by a physician.”

§287.190.6(2).

       Reviewing the relevant evidence here, Dr. Poetz allocated PPD ratings for each of

Patterson’s symptoms, both physical (75% in the aggregate) and psychiatric (20%), and opined

that Patterson was PTD from the work injury alone. Dr. Liss did not assign numerical ratings but

opined that Patterson was PTD physically and PTD psychiatrically (both independently) as a

result of the work injury alone. Dr. Stillings rated Patterson’s pre-existing psychiatric PPD at

32.5% and added another 5% psychiatric PPD from the work injury. Both the ALJ and the

Commission found Stillings’s opinion highly persuasive. Additionally, although they didn’t

specifically certify PPD or PTD, Drs. Graham and Peeples indicated that Patterson’s physical

symptoms could not be explained medically and were likely attributable to psychiatric

dysfunction, and Dr. Bassett cautioned that Patterson would “psychologically decompensate” in

a work setting.

       Following §287.220.2, the Commission first determined the degree of disability from the

last injury alone and assigned a rating of 45% PPD/BAW. The Commission found unpersuasive

Drs. Poetz’s and Liss’s opinions attributing the entirety of Patterson’s PTD to the work injury.

Rather, relying on Stillings’s opinion, the Commission found that Patterson’s psychiatric PPD

was pre-existing at a rating of 30% BAW. Reasoning that this pre-existing condition was serious

enough to constitute an obstacle to employment because it could combine with a future work

injury to result in a worse disability than would have resulted without it, the Commission

concluded that the combination of Patterson’s work injury PPD and pre-existing psychiatric PPD

rendered him PTD and thus entitled to compensation from the Fund.




                                               7
       In its sole point, the Treasurer asserts that the Commission erred as a matter of law by

substituting its own opinion on medical causation in place of the expert testimony. More

specifically, the Treasurer submits that the Commission violated §287.190.6(2), requiring that

PTD be certified by a physician, because no expert specifically opined that Patterson’s PTD

resulted from a combination of his work injury and pre-existing psychiatric problems. Rather, the

Commission extrapolated its conclusion from select opinions by several experts. Although raised

in a single point, the Treasurer’s challenge is two-tiered: (1) whether, as a matter of law, a

finding of PTD triggering Fund liability requires expert certification as to the combination of

work injury and pre-existing psychiatric condition and, inextricably, (2) whether the

Commission’s finding is supported by sufficient competent evidence.

       In support of its position, the Treasurer cites Angus v. Second Injury Fund, 328 S.W.3d

294 (Mo. App. W.D. 2010), Wright v. Sports Associated, Inc., 887 S.W.2d 596 (Mo. 1994), and

Abt v. Mississippi Lime Co., 388 S.W.3d 571 (Mo. App. E.D. 2012). In Angus, the sole

testifying medical expert certified that the claimant’s PTD resulted from a combination of his

pre-existing rheumatoid arthritis and work-related degenerative osteoarthritis, and the record

contained written reports of two other doctors who arrived at the same conclusion. The

Commission disregarded this uncontradicted medical evidence and concluded that the claimant’s

PTD was a result of his pre-existing rheumatoid arthritis alone. The appellate court reversed in

that the Commission’s award was not supported by the evidence and was against the

overwhelming weight of the evidence. In Wright, the uncontradicted medical evidence indicated

that the claimant’s neck injury was work-related, but the ALJ rejected that evidence based on his

own personal knowledge and experience as an ALJ. The Supreme Court of Missouri reversed in

that the award was not supported by sufficient competent evidence. In Abt, the claimant offered




                                               8
expert testimony that his PTD resulted from a combination of his work injury and a pre-existing

condition, while the employer offered expert testimony that his PTD was caused by the pre-

existing condition alone. The Commission found that the claimant’s PTD was due to subsequent

deterioration of his pre-existing condition and not attributable to work. This court reversed

because the Commission’s theory wasn’t articulated by any of the experts.

       We are not persuaded that the foregoing authorities mandate reversal here. None hold as

a matter of law that §287.190.6(2) requires the Commission’s causation allocation to be

physician-certified, as the Treasurer insists. The statute (which §287.800 directs us to strictly

construe) only requires PPD and PTD status to be physician-certified, which they were. The

Commission did not violate §287.190.6(2) as a matter of law. The standard for causation is in

§287.020 and simply requires that the work accident be the “prevailing factor” in the resulting

medical condition and disability. Causation is a question of fact to be determined by the

Commission. Henley v. Fair Grove R-10 School Dist., 253 S.W.3d 115, 131 (Mo. App. S.D.

2008). The Treasurer does not appeal the Commission’s finding that Patterson’s work injury

caused his physical PPD of 40% BAW. The Treasurer only challenges the Commission’s finding

as to the cause of Patterson’s psychiatric PPD and consequent determination of Fund liability.

Dr. Stillings opined that Patterson had a pre-existing psychiatric PPD of 32.5% that was

aggravated another 5% from the work injury, but Dr. Liss found no pre-existing psychiatric PPD

and deemed Patterson psychiatrically PTD as a result of the work injury alone.

       Although framed to invoke de novo review, the substance of the Treasurer’s argument

attacks the sufficiency of the evidence supporting the Commission’s award. The above cases

were decided under that standard but do not direct reversal on the present record. We find

superior authority in Blackshear v. Adecco, 420 S.W.3d 678 (Mo. App. E.D. 2014). There, as




                                               9
here, the claimant had a combination of physical and psychiatric disabilities, and the record

contained conflicting evidence by medical, psychiatric, and vocational experts as to the

significance of each. The Commission found the claimant PTD from the combination of her

work injury and pre-existing psychiatric condition despite opinions to the contrary, and this court

affirmed. The court’s reasoning is highly instructive.

       The SIF’s argument presumes that, in assessing whether a claimant is
       permanently totally disabled as a result of a work-related injury, the Commission
       may only rely on the opinions and conclusions of experts who attempt to address
       the entirety of this question and may not rely on any evidence that speaks to only
       part of it. However, this simply is not required, and the case sub judice perfectly
       illustrates why the SIF’s point must fail. Here, Claimant has both physical and
       psychiatric disabilities that impair her ability to compete in the open labor market.
       With the exception of Volarich, all of the medical experts in this case confined
       their opinions and conclusions to their area of expertise, be it orthopedics or
       psychiatry. Although Volarich provided an opinion as to both Claimant’s physical
       and psychiatric disabilities, he also qualified that he would defer to a psychiatrist
       on the assessment of Claimant's psychiatric conditions. In recognition of the
       common practice of specialized medicine, the Commission can and must be able
       to accept an expert’s testimony in his area of expertise and then assess and weigh
       the collective evidence when making its determination.

Blackshear, 420 S.W.3d at 684-85. (emphasis added) Thus, the record need not contain a single

expert opinion addressing the entirety of a claimant’s conditions. Rather, the Commission may

consider the opinions of multiple experts of differing specialties to arrive at its factual

determination as to the parts and sum of a claimant’s conditions.

       The Treasurer attempts to distinguish Blackshear in that, there, the Commission’s finding

was consistent with some experts’ opinions of combined causation (within their specialties)

whereas, here, no expert opinion precisely matches the Commission’s allocation. But this

distinction misses the point and ignores our standard of review, the rationale for which is sharply

apparent here. It is not the role of this court to dissect and appraise expert evidence concerning

the origins and significance of a claimant’s conditions. Acceptance or rejection of medical

evidence is for the Commission. Houston v. Roadway Express, Inc, 133 S.W.3d 173, 179


                                                10
(Mo.App. 2004). We shall not substitute our judgment for that of the Commission on issues of

fact.   Molder, 342 S.W.3d at 410.     The Commission can consider all of the evidence in

determining the amount of an employee’s PPD and is not obligated to award the same

percentages assigned by experts. Buskuehl v. The Doe Run Co., 68 S.W.3d 535, 540 (Mo. App.

E.D. 2001), and Landers v. Chrysler Corp., 963 S.W.2d 275, 284 (Mo. App. E.D. 1997) (both

overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003)).

It is within the province of the Commission to determine what weight it will accord expert

testimony on medical causation. Where the right to compensation depends on conflicting

medical theories, the issue is “peculiarly for the Commission’s determination.” Landers at 282.

And, ultimately, the employability of an individual is a technical matter within the Commission’s

expertise. Carkeek v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund,

352 S.W.3d 604, 610 (Mo. App. W.D. 2011).

        The Commission was free to accept expert opinions that Patterson was PTD but also free

to disbelieve that Patterson’s psychiatric PPD was a result of the work injury.              The

Commission’s determination that Patterson’s psychiatric PPD was pre-existing at 30% BAW is

supported by Dr. Stilling’s opinion. The Commission’s finding that Patterson is unemployable

due to the compounding of his pre-existing psychiatric PPD and work-related PPD is supported

by sufficient competent evidence.

                                          Conclusion

        The Commission’s decision awarding Patterson PTD benefits from the Second Injury

Fund is affirmed.

                                     _____________________________________
                                     CLIFFORD H. AHRENS, Judge

Lawrence E. Mooney, P.J., and Lisa Van Amburg, J., concur.



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