                                             In the
                          Missouri Court of Appeals
                                    Western District

                                                 
RUBY RASA,                                       
                                                     WD78562
                 Appellant,                          OPINION FILED:
v.                                               
                                                     NOVEMBER 17, 2015
TREASURER OF THE STATE OF                        
MISSOURI-CUSTODIAN OF THE                        
SECOND INJURY FUND,                              
                                                 
                Respondent.                      



                                Labor and Industrial Relations

 Before Division One: Anthony Rex Gabbert, P.J., Victor C. Howard, and Cynthia Martin,

                                                JJ.

       Ruby Rasa appeals an award of the Labor and Industrial Relations Commission (“the

Commission”) denying her claim for permanent total disability benefits from the Second Injury

Fund (“SIF”). We affirm the Commission’s award.

                                Facts & Procedural Background

       Appellant Rasa previously worked for Higginsville Habilitation Center (“HHC”). Her

duties involved assisting HHC patients with everyday movements and tasks while they

completed their physical rehabilitation programs. In June 2008, Rasa suffered from a partially

disabling work-related injury that she claimed combined with a variety of severe preexisting

medical conditions to create a permanent total disability.
       The majority of Rasa’s preexisting conditions relate to a motor vehicle accident that

occurred in 1988. In support of her current claim against SIF, Rasa testified that this accident

caused her to develop chronic neck pain, mid-back pain, and headaches for which she was

treated by a chiropractor on a regular basis. She testified that these symptoms were chronic and

caused a hindrance or obstacle to her employment in that they caused her to occasionally lose

focus at work, miss work for chiropractic treatments, ask other employees for help completing

job tasks, and to change her work schedule from five days to three days in order to give her body

more time to rest and recover between shifts.

       Rasa also testified that she suffered from a variety of other pre-2008 conditions including

incontinence, diabetes, and diabetes-associated peripheral neuropathy. She testified that these

conditions were a hindrance or obstacle to her employment in that they required her to take

unscheduled breaks, and also caused her to suffer from fatigue and pain in her feet attributable to

her diabetes. Rasa asserted that the combination of these symptoms caused her to have a 5%

permanent partial disability to her body as a whole in the years between 1988 and 2008.

       On June 6, 2008, Rasa was assisting a patient in the bathroom in the course and scope of

her employment with HHC when the patient slipped and grabbed her, causing Rasa to strain her

lower back and twist her right knee. Upon prompt notification of the injury, HHC sent Rasa to

the emergency room. While there, emergency personnel recorded Rasa’s complaints of lower

back pain radiating to her right lower extremity, and an MRI revealed a tear to the medial

meniscus of her right knee.

       Rasa subsequently underwent surgery on her right knee and underwent physical therapy

for the injury until October 16, 2008. At that time, her surgeon, Dr. Reardon, recommended the

use of a hinged knee brace and over-the-counter medications to manage her remaining knee pain.

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       In 2009, Rasa saw another doctor for lingering lower back pain. A May 2009 MRI

revealed multilevel degenerative disc and facet disease in her low back and cervical region. Rasa

then received epidural injections in her lower back that improved her lower back complaints.

       Rasa also saw a neurologist, Dr. Applebaum, regarding her pain from the June 2008

injury and he placed Rasa on a 20-pound lifting restriction. In 2010, he noted that she suffered

from neck and lower back pain, headaches, paresthesia of the left leg, weakness, general overall

fatigue, difficulty climbing stairs, occasional incontinence, insomnia, and moodiness.

Applebaum opined that these symptoms and complaints were not related to Rasa’s prior 1988

motor vehicle accident, but were instead caused only by the June 2008 work accident. In 2011,

Dr. Applebaum found that Rasa had reached maximum medical improvement and placed her on

a permanent 20-pound lifting restriction. Applebaum found that she had sustained a 10%

permanent partial disability to the body as a whole as a result of the June 2008 accident, but did

not find that she had a pre-existing disability.

       Rasa eventually filed a claim against SIF for permanent total disability benefits as a result

of her combined preexisting conditions and the primary injury. At the initial hearing with the

ALJ, Rasa presented the testimony of Dr. Stuckmeyer, her medical expert. Stuckmeyer found

that Rasa sustained a 25% permanent partial disability to the body as a whole as a result of the

June 2008 accident, and he assessed her with a 5% pre-existing disability due to the 1988 car

accident symptoms. He opined that Rasa was permanently and totally disabled based on the

synergistic effect of the pre-existing disability combined with the effects of the primary June

2008 injury.

       The ALJ found that Rasa had sustained a compensable work-related accident in June

2008 that resulted in a 17.5% permanent partial disability to the right knee and a 19.75%

                                                   3
permanent partial disability to the body as a whole. However, the ALJ found that Rasa failed to

provide sufficient evidence that she suffered from a severe pre-existing disability of such

seriousness to constituted a hindrance or obstacle to her employment. The ALJ noted that both

Dr. Applebaum and Dr. Reardon had found her past medical history and symptoms to be

insignificant, and also discredited the testimony of Rasa and Dr. Stuckmeyer as being

inconsistent. The ALJ further discredited the opinions of Rasa’s vocational experts because they

relied on incorrect information and were internally inconsistent For these reasons, the ALJ

ultimately concluded that Rasa had not sufficiently proven that she suffered from a severe pre-

existing condition that would entitle her to permanent total disability benefits from SIF.

       Rasa then appealed to the Commission, which ultimately affirmed the ALJ’s award.

Although the Commission disagreed with the ALJ’s findings as to Rasa’s own testimony, it

adopted the ALJ’s findings regarding Stuckmeyer’s testimony and that of Rasa’s vocational

experts. Because Rasa’s testimony regarding her pre-existing conditions was therefore not

supported by credible medical evidence, and because her other treating physicians had found her

past symptoms insignificant, the Commission adopted the ALJ’s award denying Rasa benefits

from SIF.

       This appeal follows.

                                       Standard of Review

       Upon review of the Commission's decision in a workers' compensation case, we may

modify, reverse, remand for rehearing, or set aside the Commission's decision only upon any of

the following reasons and no other:

       (1) That the Commission acted in excess of its powers;
       (2) That the award was procured by fraud;
       (3) That the facts found by the Commission do not support the award; or

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

§ 287.495.1, RSMo Supp. 2014. Thus, to determine the suitability of an award made by the

Commission, we must “examine the whole record to determine if it contains sufficient competent

and substantial evidence to support the award . . . .” Hampton v. Big Boy Steel Erection, 121

S.W.3d 220, 222-23 (Mo. banc 2003). We may not affirm an award made by the Commission if,

considering the whole record, it is contrary to the overwhelming weight of the evidence. Id.

Conversely, we will affirm the Commission’s decision if we determine that the Commission

“could have reasonably made its findings, and reached its result, upon consideration of all the

evidence before it.” Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012)

(internal citation omitted).

       Upon review of the Commission’s decision, “we view the evidence objectively and not in

the light most favorable to the decision of the Commission.” Poarch v. Treas. of State Custodian

of Missouri-Custodian of Second Injury Fund, 365 S.W.3d 638, 642 (Mo. App. W.D. 2012)

(internal citation omitted). Where a Commission’s decision is based on its interpretation and

application of the law, review the Commission’s conclusions of law and its decision de novo.

Riley v. City of Liberty, 404 S.W.3d 434, 439 (Mo. App. W.D. 2013). However, we defer to the

Commission’s factual findings on issues such as the credibility of witnesses and the weight given

to their testimony. Poarch, 365 S.W.3d at 642. “This includes the Commission's evaluation of

expert medical testimony.” Pruett v. Fed. Mogul Corp., 365 S.W.3d 296, 304 (Mo. App. S.D.

2012) (internal quotation omitted). “The Commission, as the finder of fact, is free to believe or

disbelieve any evidence.” Molder v. Missouri State Treas., 342 S.W.3d 406, 409 (Mo. App.

W.D. 2011) (internal quotation omitted). Thus, when the evidence before the Commission


                                                5
“would warrant either of two opposed findings, [we are] bound by the [Commission’s]

determination, and it is irrelevant that there is supportive evidence for the contrary finding.”

Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (internal citation

omitted) (internal quotation omitted).

                                              Analysis

       In her sole point on appeal, Rasa contends that the Commission erred in denying her

permanent total disability benefits because she presented sufficient competent evidence to

support an award in her favor. Rasa argues that her own credible testimony, plus the

uncontroverted testimony of her medical expert, Dr. Stuckmeyer, was sufficient to prove that she

had a permanent total disability caused by a combination of severe pre-existing conditions and

her primary injury. She further contends that in finding her medical expert’s testimony regarding

the severity of her pre-existing conditions to be not credible, the Commission impermissibly

substituted its own lay opinion as to the cause of her overall permanent total disability for that of

the medical expert. We disagree.

       Pursuant to Section 287.808, it is the employee who bears the burden of proving that she

is entitled to compensation under Chapter 287. § 287.808, RSMo Supp. 2014. To prove that she

was entitled to partial permanent disability benefits from SIF, Rasa therefore bore the burden of

demonstrating: (1) that she suffered from a pre-existing permanent partial disability “of such

seriousness as to constitute a hindrance or obstacle to [her] employment or to obtaining

reemployment”; and (2) that such a pre-existing partial disability combined with a subsequent

work-related injury “so as to cause a greater degree of disability than would have resulted in the

absence of the [pre-existing] condition.” See § 287.220.2, RSMo Supp. 2014; Knisley v.

Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. E.D. 2007). In other words, Rasa was

                                                  6
required to demonstrate that her overall permanent total disability was caused by a combination

of severe pre-existing conditions and her primary injury, which is a two-part burden.

        Although Rasa attempts to characterize the Commission’s decision as an erroneous

determination of causation for her overall disability, the true issue here is whether Rasa met her

burden of proof regarding just the first required element under Section 287.220.2 (i.e., whether

she proved that she suffered from a sufficiently severe pre-existing condition). If she did not

prove that she suffered from a pre-existing condition “of such seriousness as to constitute a

hindrance or obstacle to her employment or to obtaining reemployment,” she did not meet her

burden of proof and she is not entitled to compensation under Chapter 287.

        Rasa contends that her own testimony, plus the testimony of her medical expert, Dr.

Stuckmeyer, sufficiently demonstrated that she suffered from a severe pre-existing condition.

She argues that because the Commission found her own testimony to be credible, and because

Stuckmeyer’s testimony was uncontroverted, the Commission was required to accept this

combined testimony as true. Thus, the Commission should have found that Rasa met her burden

of proof regarding the existence of a sufficiently severe pre-existing disability. However, not

only was it within the Commission’s discretion to afford Rasa’s testimony more or less weight,

but the record before us demonstrates that Dr. Stuckmeyer’s testimony was not, in fact,

uncontroverted. The record also demonstrates that the Commission’s judgment of Stuckmeyer’s

testimony was a proper determination of his credibility and not (as Rasa argues) an

impermissible substitution of the Commission’s lay opinion for his expert testimony.1


        1
           Rasa cites to Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465 (Mo. App. S.D. 2004) and Abt
v. Mississippi Lime Co., 388 S.W.3d 571 (Mo. App. E.D. 2012) to support her contention that the Commission
impermissibly substituted its own lay opinion on the cause of her permanent total disability for the uncontroverted
contrary testimony of Dr. Stuckmeyer. However, we find both Hayes and Abt distinguishable from the present case.

                                                         7
        Because the Commission’s finding regarding Stuckmeyer’s testimony was a credibility

determination, we must defer to the Commission’s judgment regarding that testimony. See

Pruett v. Fed. Mogul Corp., 365 S.W.3d 296, 304 (Mo. App. S.D. 2012) (holding that the

Commission has sole discretion to assess witness credibility and weight to give testimony,

including medical expert testimony). Accordingly, our main consideration upon reviewing the

Commission’s award is whether its findings and overall result were reasonably supported by the

evidence before it; if so, “it is irrelevant that there is supportive evidence for [a] contrary

finding.” Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012).

        With respect to the question of whether Rasa suffered from a sufficiently severe pre-

existing condition, the Commission first considered Rasa’s own testimony and found it to be


          In Hayes, a major issue was whether the claimant’s disability was caused solely by his work injury or by
his unreasonable refusal of medical treatment following the injury, as the Commission posited. Hayes, 135 S.W.3d
at 470. The two medical experts on record in that case both opined that the claimant’s disability was caused solely
by his work-related injury, and there was no credible evidence demonstrating that the claimant had refused
treatment. Id. Because the medical expert testimony in that case was uncontroverted, the appellate court held that
the Commission could not substitute its lay opinion as to the cause of the claimant’s overall injury. Id. Here,
however, Dr. Stuckmeyer’s testimony regarding the cause of Rasa’s overall injury was not uncontroverted because
the record demonstrates that both Dr. Applebaum and Dr. Reardon considered her pre-existing conditions to be
insignificant. Additionally, the claimant’s burden in Hayes was different from Rasa’s in that Hayes was required to
demonstrate a work-related injury only, while Rasa was required to demonstrate that she suffered from a severe pre-
existing condition and a primary work-related injury. Hayes is therefore inapposite to the case at bar.
          At issue in Abt was whether the Commission used competent substantial evidence to determine that several
medical experts were not credible. 388 S.W.3d at 578-79. In that case, the Commission believed that the testimony
of two experts was not credible because they had made their opinions without taking into account the claimant’s full
medical history. Id. at 579-80. However, the record did not support the Commission’s conclusion as to one expert’s
testimony, which was based on vague criticisms of his method for assessing the claimant. Id. The appellate court
held that the Commission’s credibility determinations may not simply make vague criticisms regarding an expert’s
process in reaching an opinion, but must instead be “rooted in disbelief” of the expert’s opinion based upon
sufficient competent evidence that the expert committed some methodological failure. Id. Also at issue in Abt was
the Commission’s ultimate finding that the claimant’s disability resulted from the subsequent deterioration of his
pre-existing conditions rather than from his primary work-related injury, despite the fact that none of the medical
experts had testified as to that conclusion. Id. at 581. Rather than choosing one of the medical opinions offered by
experts, the Commission made a seemingly arbitrary finding as to causation that was not supported by any medical
opinion on the record. Id. The appellate court held that the Commission may not make such a finding as to the
cause of a claimant’s disability where that finding is completely unsupported by any medical opinion on the record.
Id. at 582. Unlike in Abt, however, the Commission’s findings here clearly pointed to specific evidence and
methodological failures that supported its disbelief of Dr. Stuckmeyer’s medical conclusions. Additionally, the
Commission did not offer some alternative, unsupported cause for Rasa’s overall disability—it did not even reach
that question. For these reasons, Abt is inapposite to the case at bar.

                                                         8
credible (in contrast to the ALJ, who did not find Rasa’s testimony credible because it contained

a number of inconsistencies). The Commission then considered Dr. Stuckmeyer’s testimony and

found that it was not credible. This determination led the Commission to conclude that the

opinions of Rasa’s vocational experts also were not credible because they were largely premised

upon incorrect or inconsistent statements in Stuckmeyer’s testimony.

       In making this determination, the Commission sorted through all the evidence connected

to Dr. Stuckmeyer, including his testimony, reports, opinions in his reports, and differing

opinions regarding the severity of Rasa’s pre-existing conditions. It considered the fact that

Stuckmeyer did not endorse, rate, or offer any opinion on several of Rasa’s pre-existing

conditions, thus rendering his opinion less than credible. The Commission also considered

medical records from other doctors who treated Rasa following her primary injury that expressed

a contrary belief that her pre-existing conditions were insignificant.

       Specifically with regard to Rasa’s chronic headaches and neck pain, the Commission

noted that Stuckmeyer appeared to be under the mistaken belief that these were referable to the

primary work-related injury. With regard to the incontinence and diabetes-related foot pain,

Stuckmeyer was wholly silent. Most important to the Commission was the fact that Stuckmeyer

did not explain how the pre-existing chronic conditions were rated or were responsible for the

overall disability, nor how they combined with the primary injury to create current work

restrictions. Instead, the Commission found that Stuckmeyer merely offered a conclusory

opinion that Rasa is permanently and totally disabled due to a combination of her pre-existing

disabilities and her primary injury, but without explaining how these conditions combined to

create a permanent total disability.



                                                 9
        After making these credibility determinations, the Commission was then required to

weigh Rasa’s own testimony against the rest of the evidence, which did not credibly support the

proposition that her pre-existing conditions rose to the level of a hindrance or obstacle to her

employment or reemployment. The Commission ultimately accorded Rasa’s testimony little

weight because it was not supported by credible medical evidence, and because it was

contradicted by the opinions of other doctors who treated Rasa following her primary injury and

found her pre-existing conditions to be insignificant. This weighing process was fully within the

Commission’s discretion to make credibility determinations and decide how much weight

different testimony should be given; thus, the Commission’s ultimate conclusions were

reasonably supported by the evidence before it. Rasa’s point is denied.

                                            Conclusion

        In our review of the whole record, it was not against the weight of the evidence for the

Commission to find that Rasa failed to meet her burden of showing that her asserted pre-existing

conditions were severe enough to establish an entitlement to benefits from SIF. Payne v.

Treasurer of State, Custodian of the Second Injury Fund, 417 S.W.3d 834, 849 (Mo. App. S.D.

2014). The Commission properly considered the whole record in making its factual findings,

and its overall result was reasonably supported by sufficient competent evidence.

        Noting again that this Court defers to the Commission on issues involving the credibility

of witnesses and the weight to be given their testimony, we find that there was competent and

substantial evidence to support the Commission’s decision denying permanent partial disability

benefits to Appellant Rasa. We therefore find no error in the Commission’s final award and

affirm its decision.



                                                 10
                   Anthony Rex Gabbert, Judge


All concur.




              11
