Watson-Spargo v. Treasurer of the State, Custodian of Second Injury Fund

DANIEL E. SCOTT, Judge. Michelle Watson-Spargo (“Claimant”), who sought workers compensation for permanent total disability (PTD), was awarded only permanent partial disability benefits. She appeals. Background Claimant has some college education, but no degree, and was 38 years old at the time of her hearing. She held various jobs, suffered several injuries and maladies, and experienced a family tragedy during the 20 years leading up to her 2009 work injury at D & W Stateline Restaurant. After Claimant settled with D & W, she sought PTD benefits from the Second Injury Fund, which compensates an injured employee whose latest work injury combines with a prior disability to create an increased combined disability. See Proffer v. Federal Mogul Corp., 341 S.W.3d 184, 186 n. 3 (Mo.App.2011). Claimant’s experts (Koprivica and Franks) opined that Claimant was totally disabled. The ALJ deemed a contrary opinion by the Fund’s vocational expert (Swearingin) “more credible and accurate” and, thus, found Claimant only partially disabled. The Labor and Industrial Relations Commission adopted the ALJ’s decision by a 2-1 vote, so we review and defer to the ALJ’s findings, weighing of evidence, and credibility determinations. Id. at 187. It was Claimant’s burden to prove that she was totally disabled. Dunn v. Treasurer, 272 S.W.3d 267, 275 (Mo.App.2008). Point and Analysis Our review is limited to issues raised by the point relied on. Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 681 (Mo.App.2002). Claimant’s point asserts that the ALJ erroneously found Claimant employable on two grounds: (1) Swearingin was the most credible expert; and (2) because Claimant “didn’t have ‘surgical findings in her low back,’ ” she could not be totally disabled.1 We consider these in reverse order. No Surgical Findings The award dispels Claimant’s suggestion that her PTD claim was rejected exclusively or primarily because she never needed back surgery: In this case, there is ample evidence to support a finding that Claimant is capable of working in the open labor market, albeit in a limited number of jobs. Contrary to Dr. Franks’ understanding of Claimant’s prior work at Air Evac, Claimant was working in a full-time dispatcher position while also working on-call as an EMT. She held that position for nearly four years. By her own testimony, at the time she left she was capable of performing her job both [294] psychologically and physically. Dr. Franks’ assertion that Claimant was not dependable or was a bad employee is simply incorrect and cannot stand as a basis for finding that Claimant is now permanently and totally disabled. There is no doubt that Claimant has not had the easiest of lives. But she has proven to be resilient, rebounding from traumatic events of her childhood, obtaining an education, completing vocational training, maintaining her license as an EMT, and successfully working many years in a demanding position, as well as maintaining employment through most of her life. Wilbur Swearingin had the opportunity to meet and give testing to Claimant. He is an expert in vocational rehabilitation and had a full understanding of Claimant’s past work history, medical history, and physical restrictions. Based on his expertise, he determined that Claimant was capable of employment in the open labor market. While Claimant counters with Dr. Franks’ opinion, it is evident that Dr. Franks did not have an accurate understanding of Claimant’s past work history, and thus I find and conclude that he exaggerated Claimant’s past psychological history. Mr. Swearingin’s opinions are the only ones in the case which are based upon a full and accurate understanding of the underlying facts in this case. I accept Mr. Swearingin’s opinion, that Claimant is not permanently and totally disabled, as more credible and accurate than that of Dr. Franks and Dr. Koprivica. Given Claimant’s age of only 38 years, her education, medical skill, skill in dispatching, and lack of surgical findings in her low back, and based on the record as a whole, I find and conclude that Claimant is not permanently and totally disabled. However, the last-quoted paragraph also speaks to Claimant’s other complaint, to which we now turn. Credibility of Experts/Alexander Rule Claimant criticizes the ALJ for believing Swearingin over Claimant’s experts on the total disability issue. She claims the ALJ partially misunderstood Franks and that Koprivica’s opinion was “unim-peached.” The record leaves us dubious of both assertions;2 more importantly, Claimant offers no authority for her request that we dissect and reweigh the ALJ’s express credibility determination. The ALJ noted several issues and weaknesses in the testimony of both Koprivica3 [295] and Franks.4 Without repeating those, and as quoted above, the ALJ expressly “accept[ed] Mr. Swearingin’s opinion, that Claimant is not permanently and totally disabled, as more credible and accurate than that of Dr. Franks and Dr. Koprivi-ca.” Given the “Alexander rule,” we are not free to disregard this credibility determination. See Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1998);5 Dunn, 272 S.W.3d at 272-75; Richardson v. Missouri State Treasurer, 254 S.W.3d 242, 244-45 (Mo.App.2008); Copeland v. Thurman Stout, Inc., 204 S.W.3d 737, 743-44 (Mo.App.2006). Richardson is instructive. A vocational expert and one physician opined that Richardson was unemployable. “Dr. Randolph; however, concluded Richardson was capable of employment with restrictions.” 254 S.W.3d at 245. The Commission sided with the latter, finding the vocational expert’s opinion “flawed to the extent [it] fails to take into consideration all of the expert medical opinions in the matter relating to work restrictions.” Id. Citing the Alexander rule, id. at 244, the Eastern District affirmed. Despite “some concern” with the Commission’s choice of words, the court did not believe “the commission was silent regarding the credibility of the expert testimony. Instead, the commission appears to have concluded Dr. Randolph’s testimony was more credible or ‘persuasive.’ ” Id. at 245. [W]e are faced with contradictory testimony and a determination that one ex [296] pert opinion is more “persuasive” than the other based upon the evidence in the record as a whole. Therefore, we must follow the rule set forth in Alexander, and leave the acceptance or rejection of medical evidence for the commission. Id. We also “are faced with contradictory testimony and a determination that one expert opinion is more ‘persuasive’ than the other based upon the evidence in the record as a whole,” id., so we also must follow Alexander. We are constitutionally bound to follow the most recent controlling decision of our supreme court. Bennett v. Treasurer, 271 S.W.3d 49, 52 n. 4 (Mo.App.2008). Indeed, by citing specific weaknesses in the Koprivica/Franks testimony, this ALJ arguably made an even stronger case for deference. At any rate, “[bjecause the record is not ‘wholly silent concerning the Commission’s weighing of credibility’ the Alexander rule applies.” Copeland, 204 S.W.3d at 744 (quoting Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179-80 (Mo.App.2004)). Conclusion Claimant’s sole point fails. With that, our inquiry ends. Bland, 67 S.W.3d at 681. The degree of Claimant’s disability was “a finding of fact within the special province of the Industrial Commission.” Pavia v. Smitty’s Supermarket, 118 S.W.3d 228, 234 (Mo.App.2003). We will not substitute our judgment on such issues, even if we would have reached a different conclusion. Id. at 239. The ALJ could consider all the evidence, not just medical testimony, in determining Claimant’s disability. Id. We affirm the award as entered. ROBERT S. BARNEY, J., concurs. WILLIAM W. FRANCIS, JR., P.J., dissents, in separate opinion. Footnotes [1] Specifically, Claimant contends that no competent and sufficient evidence supports these findings. We have questioned whether evidence must support a decision against a claimant who had the burden of proof. See Reynolds-Byers v. Blue Cross and Blue Shield of Missouri, 290 S.W.3d 781, 783 n. 3 (Mo.App.2009). [2] We are not convinced that any misunderstanding about Claimant's Air Evac work schedule and Franks' related testimony was with the ALJ, not Franks. Koprivica’s disability opinion plainly was challenged. Further, even if that opinion was unimpeached, the ALJ did not have to believe it. See Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993) and discussion infra. Disability is not an exclusively medical question. Carkeek v. Treasurer, 352 S.W.3d 604, 610 n. 3 (Mo.App.2011). [3] Per the award: Dr. Koprivica admitted that he had no records showing that any medical provider had placed any physical limitations on Claimant's activities prior to the January 16, 2009, injury. He admitted that Claimant clearly had not had surgery to her neck or back, nor any recommendation for surgery, prior to the injury in January 2009. He admitted that he had no record of Claimant having been hospitalized for her low back prior to January 2009. He admitted that Claimant's neck and back were neurologically intact prior to January 2009. He admitted that Claimant had no surgery, nor any recommendation for surgery, related to her carpal tunnel syndrome prior to January 2009. He admitted that he did not have actual medical records to confirm what Claimant had told him regarding the types and amounts of medication she was taking prior to January 2009. He believed that psychological factors played a role in [295] his examination of Employee. For instance, Claimant was unable to lie flat on her back during examination but Dr. Kopri-vica found no physical reason for her inability to lie down flat. He also believed that Claimant was over-reacting on his exam, but linked that to Claimant’s psychological issues. Dr. Koprivica agreed that Claimant’s psychological condition had deteriorated since the work injury in January 2009. [4] The award continues: On cross-examination, Dr. Franks admitted that despite Claimant’s early life of traumatic events, she graduated from high school, obtained 12 hours of college credit, graduated from an EMT program, obtained the EMT license. Dr. Franks thought Claimant had only worked part-time for Air Evac as a dispatcher (by his own testimony a very stressful position). Claimant had actually worked 36 hours per week at the Air Evac job, plus worked simultaneously as an EMT. Although Dr. Franks indicated that Claimant did not perform well on her jobs, he admitted he had no employment records. He had no history that she missed work. Dr. Franks' only evidence of Claimant having difficulty concentrating prior to January 26, 2009, was that she was involved in two car accidents. But he did not know who was at fault in those accidents and it was possible that the accidents were not caused by focus problems. He had no evidence from either his interview with Claimant or the records he reviewed that Claimant had productivity problems, or had problems making sound decisions prior to the January 2009 accident. Even though Dr. Franks believed Claimant had problems with coworkers and supervisors, he admitted that Claimant told him that she made friends easily. He inferred that Claimant had difficulties due to short periods of employment, but he had failed to acknowledge in his report that Claimant's short-term jobs might be seasonal, temporary, or that she had more than one job at a time. Dr. Franks testified that he had not seen the results of the tests administered by Wilbur Swearingin, the Second Injury Fund’s vocational expert. He was unaware that Claimant had scored at a high school level or above on most of the WRAT-IV. He admitted he had seen no cognitive limitations in Claimant. He did believe that if Claimant could find employment it would benefit her psychologically. He admitted that Claimant's psychological outlook worsened significantly since her Januaiy 16, 2009, accident. [5] Statutorily abrogated in other respects; see Ahern v. P & H, LLC, 254 S.W.3d 129, 136 (Mo.App.2008).