                                             In the
                          Missouri Court of Appeals
                                    Western District

                                                 
FREDERICK WININGEAR,                             
                                                    WD78398
                 Appellant,                         OPINION FILED:
v.                                               
                                                    November 3, 2015
TREASURER OF THE STATE OF                        
MISSOURI-CUSTODIAN 2ND INJURY                    
FUND,                                            
                                                 
                Respondent.                      



                 LABOR AND INDUSTRIAL RELATIONS COMMISSION

                                     Before Division Two:
        Mark D. Pfeiffer, P.J., Lisa White Hardwick, and James Edward Welsh, JJ.


       Frederick Winingear appeals the Labor and Industrial Relations Commission's denial of

his claim for permanent partial disability benefits from the Second Injury Fund. We affirm.

                                           Background

       On February 23, 2011, Frederick Winingear was working as a Security Aide at the Fulton

State Hospital when he suffered an injury to his neck ("the primary injury") from a patient

putting him in a "choke hold." Winingear promptly reported the incident to his employer, and

the employer sent him for medical treatment. Winingear was diagnosed with neck strain.

Winingear eventually entered into a settlement agreement with his employer and the employer's

insurer for 4% permanent partial disability of the body as a whole, referable to the neck.
       Winingear filed a claim against the Second Injury Fund alleging Fund liability for his

permanent partial disability due to the combination of his primary neck injury and various

preexisting disabilities. On August 4, 2014, the parties appeared before an Administrative Law

Judge (ALJ) for a hearing. At the outset, the parties stipulated that Winingear was an employee

of Fulton State Hospital when he sustained the injury to his neck on February 23, 2011, and that

the injury occurred while he was working in the course and scope of his employment. The issues

to be resolved included: (1) whether the claim was timely filed; (2) the nature and extent of his

permanent partial disability, and (3) the liability, if any, of the Second Injury Fund.

       Winingear testified at the hearing about his primary injury and his preexisting disabilities.

He stated that, even after being treated for the February 2011 primary injury, he continues to

have stiffness and range of motion problems in his neck but that the problems were not as bad as

they were before. He testified that, following treatment, his neck pain has averaged a 3 or 4 on a

10-point scale. As to his prior injuries, Winingear stated that he injured his left shoulder, chest,

and ribs in an incident on September 17, 2010, when he and other staff members were dealing

with a combative patient. He sought treatment for those injuries and eventually had an

arthroscopic repair of the left shoulder. Winingear thereafter settled with his employer for 20%

of the left shoulder and 3% of the body as a whole, referable to the chest. Winingear testified

about ongoing problems with his neck and left shoulder as they relate to his current job at the

Dollar General Warehouse. He stated that he limits himself at work as to how much and how

high he lifts due to his preexisting shoulder injury and that he has problems with looking up and

working overhead, which he attributed to both his neck and his shoulder injury.

       In September 2012, Winingear was evaluated by Dr. Raymond Cohen. Winingear

introduced the doctor's report into evidence at the hearing. Dr. Cohen concluded, based on his

                                                  2
examination of Winingear and his review of Winingear's medical records, that Winingear had

diagnoses and resulting medical conditions that were a direct result of his 2010 and 2011 work

injuries. He found that, as a result of the September 17, 2010 work injury, Winingear has

permanent partial disabilities of 40% at the left shoulder level and 5% of the whole person at the

chest level. Regarding the February 23, 2011 injury, Dr. Cohen opined that Winingear has a 10%

permanent partial disability of the whole person at the cervical spine level. Dr. Cohen also

agreed with Winingear's other previously adjudicated awards of 12.5% to the head/neck from a

December 1, 2009 work-related injury, and a 12% whole body injury from a 1993 work-related

injury to the neck. Dr. Cohen opined that

         [Winingear]'s preexisting conditions or disabilities combine with the primary
         work-related injuries to create a greater overall disability than their simple sum.
         Due to the multiplistic effect, there is a load factor of 15%. His preexisting
         conditions or disabilities are industrially disabling.

         The ALJ denied Winingear's claim against the Fund, and the Commission affirmed and

adopted the ALJ's Award. The Commission found that Winingear has preexisting permanent

partial disabilities of 20% of the left shoulder and 3% of the body as a whole (referable to the

chest) that are a hindrance or obstacle to his employment, and that his primary injury resulted in

a 4% permanent partial disability of the body as a whole, referable to the neck. It found,

however, that "the credible and convincing evidence does not establish that there was the

required synergy between the primary injury and the pre-existing condition(s)."1 The

Commission denied the claim for compensation from the Fund and held that all other issues are

moot.


         1
           As more fully explained infra, Second Injury Fund liability exists only if the primary injury combines with
preexisting disabilities to cause greater overall disability than the independent sum of the disabilities; this is referred
to as the "synergistic effect." See Pierson v. Treasurer of State, 126 S.W.3d 386, 388-89 (Mo. banc 2004).

                                                            3
                                                     Discussion

        Our review of the Commission's decision is governed by article V, section 18, of the

Missouri Constitution and section 287.495, RSMo.2 Article V, section 18, provides for judicial

review of the Commission's award to determine whether the decision is authorized by law and

whether it is "supported by competent and substantial evidence upon the whole record."3 Under

section 287.495, we must affirm unless the Commission acted in excess of its powers, the award

was procured by fraud, the facts do not support the award, or insufficient competent evidence

exists to warrant the making of the award. In order to determine whether the award is supported

by sufficient competent and substantial evidence, i.e., is contrary to the overwhelming weight of

the evidence, we examine the evidence in the context of the whole record, viewing the evidence

objectively. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222–23 (Mo. banc 2003). In

the absence of fraud, however, the Commission's findings of fact are "conclusive and binding."

§ 287.495.1. Thus, we "defer to the commission on issues of fact, the credibility of the

witnesses, and the weight given to conflicting evidence." Treasurer of State-Custodian of

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

        Section 287.220 sets forth the provisions of the Second Injury Fund and imposes liability

on the Fund in certain cases of permanent disability where there is a preexisting disability. Lewis

v. Treasurer of State, 435 S.W.3d 144, 152 (Mo. App. 2014). The purpose of the Fund is "to

encourage the employment of individuals who are already disabled from a preexisting injury,

regardless of the type or cause of that injury." Witte, 414 S.W.3d at 460 (citation omitted).

        2
            Statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013 Cum. Supp.
        3
          Where, as here, the Commission affirms or adopts the findings of an ALJ, we review the decision and
findings of the ALJ as adopted by the Commission. Calvert v. Treasurer of State, 417 S.W.3d 299, 312 (Mo. App.
2013).

                                                           4
         Here, Winingear sought recovery for permanent partial disability benefits from the Fund.

"Permanent partial disability" means a disability that is permanent in nature and partial in degree.

§ 287.190.6(1). For the Fund to be liable for such benefits under section 287.220.2,4 the claimant

must prove that he incurred a compensable injury that resulted in a permanent partial disability

and that, when he incurred that injury, he had a preexisting permanent partial disability (whether

compensable or not) that was of such seriousness as to constitute a hindrance or obstacle to

employment or re-employment and which meets certain statutory thresholds. Hoven v. Treasurer

of State, Custodian of Second Injury Fund, 414 S.W.3d 676, 678 (Mo. App. 2013). In addition,

the claimant must establish that the present compensable injury and his preexisting permanent

partial disability combined to cause a greater degree of disability than the simple sum of the

disabilities viewed independently. Id. This is referred to as the "synergistic effect." Pierson v.

Treasurer of State, 126 S.W.3d 386, 388-89 (Mo. banc 2004).

         If a claimant establishes that the two disabilities combined result in a greater disability

than that which would have occurred from the last injury alone, then the Fund is liable for the

degree of the combined disability that exceeds the numerical sum of the preexisting disabilities

and the disability from the last injury, or the "synergistic effect" of the combined disabilities.

Witte, 414 S.W.3d at 467 (citing Pierson, 126 S.W.3d at 389). In other words, the Fund is liable

only for the amount attributable to the synergistic combination. Thus, the failure to prove a

synergistic combination between the primary injury and a preexisting disability is proper grounds

for denying Fund liability. See Calvert v. Treasurer of State, 417 S.W.3d 299, 314 (Mo. App.


         4
           In 2013, the General Assembly amended section 287.220 to change eligibility for benefits for injuries
occurring after January 1, 2014. See Witte, 414 S.W.3d at 461 n.3. Those new requirements are set forth in
subsection .3 of section 287.220; subsection .2 applies to injuries that occurred before that date. As the injuries in
this case occurred in 2010 and 2011, subsection .2 controls. See id.

                                                           5
2013) (reversing a portion of the Commission's award of Fund benefits after finding that there

was "nothing before the Court" in the transcript or record constituting evidence of a "synergistic

effect" between a certain preexisting disability and the primary injury).

       Here, the Commission found that Winingear established that his primary injury resulted

in a permanent partial disability and that, at the time of the primary injury, he had preexisting

permanent partial disabilities referable to his shoulder and chest. The Commission even agreed

that the preexisting disabilities constituted a hindrance or obstacle to employment at the time of

the primary injury. The Commission concluded, however, that Winingear failed to establish that

there was any "synergistic effect" as a result of the combination of the injuries.

       In Point I, Winingear argues that the Commission erred in concluding that there was

insufficient evidence of a "synergistic effect" to trigger Second Injury Fund liability. He

contends that the facts found by the Commission do not support the award and that the evidence

in the record does not warrant the making of the award, in that both he and Dr. Cohen testified to

"a preexisting obstacle and a synergistic effect." Winingear cites his own testimony that he had

difficulty working overhead due to the combination of his primary neck injury and his

preexisting shoulder injury. He cites Dr. Cohen's opinion (1) that his preexisting disabilities were

"industrially disabling" and combined with the "primary work-related injury to create an overall

disability greater than their simple sum" and (2) that, due to the multiplicity of the preexisting

and primary disabilities, a load factor of 15% should be applied. He contends that this

constituted sufficient evidence of a synergistic effect so as to trigger Fund liability.

       It is the claimant's burden to prove all of the elements of his workers' compensation claim

to a reasonable probability. Hoven, 414 S.W.3d at 678. Here, the Commission concluded that

Winingear failed to prove the "synergistic effect" of his claim and, thus, was not entitled to

                                                   6
benefits from the Fund. See Calvert, 417 S.W.3d at 314. Winingear's burden on appeal is to

prove that the Commission's award is against the overwhelming weight of the evidence in light

of the Commission's credibility determinations and factual findings, by which we are bound. See

Hampton, 121 S.W.3d at 222-23 (equating an award that is not supported by competent and

substantial evidence to one that is contrary to the overwhelming weight of the evidence);

Calvert, 417 S.W.3d at 306-07; § 287.495.1. He fails to satisfy that burden.

         Here, the Commission did not believe that "the credible and convincing evidence . . .

establish[ed] that there was the required synergy." The Commission explained:

         [Winingear] did not testify as to a synergistic effect: at least he did not do so
         clearly and convincingly.[5] . . . . Although [Dr. Cohen's] report contains his
         opinion that there is a greater overall disability, Dr. Cohen does not explain how
         the conditions or disabilities combined to create the greater overall disability.
         Moreover, [Winingear]'s testimony does not support Dr. Cohen's opinion that the
         primary injury combined synergistically with the pre-existing injury. [Winingear]
         did not testify to an enhanced or synergistic effect, and the medical records (other
         than those of Dr. Cohen) do not reflect that there was such an effect.

The Commission specifically did "not find Dr. Cohen's opinion in this case as to the synergistic

effect to be credible or persuasive."

         "The Commission is free to believe or disbelieve any evidence," and, as noted, "we defer

to the Commission's credibility determinations and to the weight it accords testimony and

evidence." Treasurer of the State of Mo.-Custodian of the Second Injury Fund v. Cook, 323

S.W.3d 105, 110 (Mo. App. 2010). Moreover, under section 287.495.1, the Commission's factual

findings are "conclusive and binding," and, thus, we look to the facts as found by the

         5
            We understand the Commission's use of the phrase "clearly and convincingly" here to mean that it did not
find Winingear's testimony credible or persuasive; we find the Commission's use of that phrase unfortunate in this
context, however, because "clear and convincing" is not a standard of review that is applicable to this case. That
said, if testimony is deemed by the Commission as lacking credibility, it matters not whether the Commission was
reviewing such testimony under the correct lens of review (more likely true than not) or the incorrect lens of review
(clear and convincing). Testimony lacking credibility fails to satisfy either lens of review and the Commission's
misstatement in its ruling is, at most, harmless error.

                                                          7
Commission to assess the propriety of the Commission's result. Calvert, 417 S.W.3d at 306-07.

"The Commission was free to reject even uncontradicted and unimpeached testimony if

reference to the . . . award shows that the Commission's disbelief of [that testimony] was the

basis for the award." Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 801 (Mo. App. 2011).

        Such is the case here. The Commission specifically found that Winingear did not testify

"clearly and convincingly" as to a synergistic effect between his disabilities. The Commission

also noted that Dr. Cohen's disability ratings were out of line with the actual settlement amounts,

and it specifically found that Dr. Cohen was not credible or persuasive on the issue of synergy.

As with other witnesses, the weight and credibility given to a medical expert's opinion is entirely

within the Commission's discretion. Pace v. City of St. Joseph, 367 S.W.3d 137, 152 (Mo. App.

2012). The Commission further pointed out that Dr. Cohen provided no explanation for his

synergy opinion, and it found that neither the medical records, nor Winingear's testimony,

supported the doctor's conclusions. Although Winingear relies exclusively on his own testimony

and Dr. Cohen's opinion in this appeal, because the Commission deemed them to be not

convincing or credible, respectively, we cannot rely on that evidence to reverse the Award.

        Winingear also fails to identify any specific factual finding by the Commission as to

synergy that does not support the Award. The Commission found that Winingear was not

convincing and that Dr. Cohen was not credible on the issue of synergy and denied benefits on

that basis; thus, the Commission's findings are consistent with its Award.6

        In sum, Winingear presents no arguments that would permit this Court, under our

standard of review, to reverse the Commission's decision. Deferring to the Commission on the

        6
         Winingear suggests that, because his injuries were not beyond the realm of lay understanding, Dr. Cohen's
opinion was not necessary in any event. Even if true, we fail to see how this assists Winingear as the Commission
was unconvinced by Winingear’s testimony, which was the only other supportive testimony.

                                                        8
weight of the evidence and witness credibility, as we must, we find that there was competent and

substantial evidence to support the Commission's denial of Fund liability. The point is denied.

         In Point II, Winingear argues that the Commission erred in not making a ruling as to

whether his claim against the Second Injury Fund was time barred under section 287.430,

RSMo.7 He contends, citing various authorities, that the Commission should have found that his

claim was timely because it was filed within one year of the Stipulation for Compromise

Settlement, which constituted a "claim" within the meaning of the applicable statute.

         The Commission did not err in not addressing this issue because its denial of the claim on

the issue of synergy was dispositive. "Issues that are not essential to a disposition of the case

should not be addressed." Int'l Div., Inc. v. DeWitt & Assoc., Inc., 425 S.W.3d 225, 233 (Mo.

App. 2014) (citations omitted). The Commission properly declined to address the timeliness

issue because it was not essential to the disposition of this case. The point is denied.

         Based on the foregoing, we affirm the Commission's Award.




                                                                /s/ JAMES EDWARD WELSH
                                                                James Edward Welsh, Judge


All concur.




         7
          Section 287.430 requires a claim against the Fund to be filed "within two years after the date of the injury
or within one year after a claim is filed . . . whichever is later." Winingear filed his original claim against the Fund
on May 6, 2011, in conjunction with his workers' compensation claim. Believing that his February 2011 primary
injury was under the threshold requirements of section 287.220, he dismissed his claim against the Fund in February
2013. Following the Missouri Supreme Court's holding in Witte, 414 S.W.3d at 466, that the statute does not require
the primary injury to meet a numerical threshold, Winingear refiled his claim against the Fund on December 5,
2013; hence, the timeliness issue.

                                                           9
