Ruby Rasa v. Treasurer of the state of Missouri-Custodian of the Second Injury Fund

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%
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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
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(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
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“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
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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
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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.
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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.
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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.
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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.
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Anthony Rex Gabbert, Judge
All concur.
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