James C. Bowman v. Central Missouri Aviation, Inc., and Treasurer of the State of Missouri as Custodian for the Second Injury Fund

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JAMES C. BOWMAN, )
)
Appellant, )
)
v. )
WD79276
)
)
OPINION FILED:
CENTRAL MISSOURI AVIATION, INC., )
August 23, 2016
and TREASURER OF THE STATE OF )
MISSOURI AS CUSTODIAN FOR THE )
SECOND INJURY FUND, )
)
Respondents. )
Appeal from the Labor and Industrial Relations Commission
Before Division Two: Karen King Mitchell, Presiding Judge, and
Cynthia L. Martin and Gary D. Witt, Judges
James Bowman appeals from a decision of the Labor and Industrial Relations
Commission denying his claim for workers’ compensation benefits. Bowman raises three claims
on appeal: (1) the Commission erred in discrediting Bowman’s medical expert; (2) the
Commission erred in finding Bowman’s preexisting psychological injury to be the prevailing
factor in his disability; and (3) the Commission erred in finding that the Second Injury Fund had
no liability to Bowman. Finding no error, we affirm.
Background
On June 20, 2005, Central Missouri Aviation (CMA) hired Bowman as a line technician.
His duties were directing traffic on the tarmac, cleaning and servicing planes, fueling planes,
putting planes up in the hangar or pulling planes out of the hangar, catering, and attending to any
other customer needs.
On July 16, 2007, a pilot who had just arrived approached Bowman and advised
Bowman, “You need to get in there and do the lav.” Bowman responded, “There’s already
somebody in there, you don’t need to reiterate.” The pilot then pressed his left forearm against
Bowman’s chest, placed his right hand around Bowman’s throat, and pushed Bowman against
the nose of the plane. The incident lasted approximately five seconds. Bowman suffered no
physical injuries as a result of the incident, but he felt scared, confused, and helpless because
everyone in management at CMA had already left for the day, so there was no one to whom he
could immediately report the incident. That night, Bowman had difficulty sleeping and trouble
concentrating because he felt violated. Bowman contacted the human resources representative
the following day to report the incident, and he requested medical help to deal with the situation.
CMA refused to pay for any medical treatment beyond the health insurance it was already
providing for Bowman. Bowman did not work again after that day. On December 14, 2007,
CMA terminated Bowman’s employment for lack of attendance.
Bowman sought out psychological treatment on his own at Green Meadows Adult
Psychiatry Clinic (Green Meadows). Bowman had previously sought treatment at Green
Meadows on May 4, 2007, shortly before the incident with the pilot, because his girlfriend and
roommate had become concerned with his behavior. Bowman had begun screening people as
they came into his home, and he was experiencing problems with intense anxiety, agitation,
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feelings of insecurity, nervousness, and paranoia. During the May 4, 2007 evaluation, Bowman
revealed that, in January 2003, an armed intruder entered his home, struck him with a gun, forced
him to drive somewhere, then stole his money, kicked him out of the car, and drove away.
Bowman felt helpless and frantic during the incident, believing that he would be killed.
Afterward, he suffered from acute sleep problems (resulting from fear) and felt insecure,
hopeless, afraid, and unsettled. He became isolated and distrustful of people, but, as time passed,
he found it easier to leave his home and to work. Bowman also revealed, during the evaluation,
that he had been in a rehabilitation program twice for marijuana usage. The evaluation resulted
in a diagnosis of generalized anxiety disorder.
Following the 2007 incident with the pilot, Bowman received therapy from Linda
Hodges. Ms. Hodges discussed the symptoms of post-traumatic stress disorder (PTSD) with
Bowman, and he agreed that the diagnosis of PTSD “fits [him] to a ‘T’” because he experienced
many of those symptoms following the 2003 kidnapping. Ms. Hodges suggested to Bowman
that his response to the 2007 work incident likely would not have been so severe had he not
experienced the 2003 kidnapping.
On January 24, 2008, Bowman filed a claim for workers’ compensation, claiming
psychological injuries from the July 16, 2007 incident with the pilot. Bowman alleged that he
was permanently partially disabled. To support his claims, Bowman underwent an evaluation by
psychiatrist Dr. A. E. Daniel. Dr. Daniel concluded that Bowman is permanently and partially
disabled and that the 2007 work incident was “the sole prevailing factor in the causation of his
disability.” CMA retained Dr. Wayne Stillings to conduct a separate evaluation. Dr. Stillings
concluded that Bowman was “probably disabled from employment,” but determined that the
disability was “due to pre-existing psychiatric problems.” Specifically, Dr. Stillings opined that
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Bowman’s need for psychiatric treatment “is prevailingly causally related to his pre-existing,
inherent psychiatric disorders and possibly the life-threatening incident in 2003, neither of which
was aggravated by the 07/2007 work incident.”
The Administrative Law Judge (ALJ) found “Dr. Stillings’[s] opinions regarding the
cause of [Bowman]’s PTSD . . . much more persuasive than those of Dr. Daniel.” The ALJ
noted:
While I would disagree with Dr. Stillings’[s] apparent opinion that the July 16,
2007 incident did not “exacerbate” (at least temporarily) [Bowman]’s pre-existing
PTSD, the remainder of Dr. Stillings’[s] opinions appear much more in line with
the facts of the case than do Dr. Daniel’s opinions.
The bases for the ALJ’s rejection of Dr. Daniel’s conclusions are as follows:
I find it very difficult to believe that Dr. Daniel did any type of thorough review
of [Bowman]’s treatment records, particularly the records from Green Meadows
Adult Psychiatry Clinic. Dr. Daniel obviously did not know that [Bowman] was
having panic attacks 2-3 times a month prior to July 16, 2007. It is almost
impossible to believe that Dr. Daniel reviewed the August 1, 2007 [report] . . .
where [Bowman] and his therapist agree that [Bowman] suffered from classic
PTSD symptoms from and after the 2003 robbery/kidnapping incident. As
Dr. Daniel also states “(d)etailed inquiry did not indicate that [Bowman] has any
substance abuse-related legal or occupational problems[,]” it is extremely difficult
to see how he could miss the references to [Bowman]’s daily marijuana use in the
July and August 2007 records, and how he could not see that [Bowman] was
being treated for “cannabis dependence” and how Dr. Daniel could miss the many
references to [Bowman]’s legal problems involving marijuana possession, drug
court[,] and probation.
The ALJ concluded that Bowman’s “PTSD was caused by the 2003 robbery/kidnapping
incident, and not by the July 16, 2007 incident[,]” which “was nothing more than a triggering or
precipitating factor in an exacerbation of the already-existing symptoms of the already-existing
PTSD.” The ALJ expressly found the 2007 work incident “was NOT the prevailing factor in the
cause of [Bowman]’s PTSD. The 2003 robbery/kidnapping incident WAS the prevailing factor
in the cause of [Bowman]’s PTSD.” Upon determining that the 2007 work incident was not the
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prevailing factor in causing Bowman’s PTSD, the ALJ found “there is no ‘compensable injury’”
and denied all of Bowman’s claims.
Bowman applied to the Commission for review of the ALJ’s decision. The Commission
upheld the ALJ’s determination but issued a supplemental decision, incorporating the ALJ’s
decision “to the extent not inconsistent with [the] supplemental decision.” In the supplemental
decision, the Commission noted the starkly contrasting opinions of Dr. Daniel and Dr. Stillings,
but stated: “[O]ur analysis does not turn on the simple either/or question whether the 2003 or
2007 event caused [Bowman] to suffer the medical diagnosis of PTSD . . . because it is possible
for [Bowman] to have suffered psychiatric injury from both events.” The Commission noted that
Bowman “had the burden of proving that the work accident was the prevailing factor causing a
resulting medical condition and disability.” It then pointed out that “the term ‘medical
condition’ is in no way synonymous with ‘medical diagnosis.’” The Commission noted:
There is evidence in this record which, if believed, would support findings that
[Bowman] suffered from PTSD in the past, that (although he may have been left
in a more fragile state) this condition because quiescent for an extended period of
time leading up to the date of injury, and that the sudden, violent assault at the
workplace caused a permanent worsening of the latent condition, a permanent
increase in disability, and a need for medical care that otherwise would never
have been required.
The Commission then concluded that its “inquiry must begin with the sole question whether
Dr. Daniel persuasively established that the July 2007 accident was the prevailing factor causing
[Bowman] to suffer a resulting psychiatric condition and disability, regardless of whether
[Bowman] was also suffering (or had previously suffered) from preexisting psychiatric
conditions and/or disabilities.”
The Commission first noted that the only objective psychological test Dr. Daniel
administered (the MMPI-II) yielded invalid results; thus, Dr. Daniel’s analysis was based “on
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[Bowman]’s subjective complaints and symptoms.” “As a result,” the Commission determined,
“the persuasive force of Dr. Daniel’s opinion turns to a substantial degree upon the extent to
which [the Commission] c[ould] rely upon [Bowman]’s subjective description of his history,
complaints, and symptoms.” The Commission then identified numerous “material
inconsistencies” in Bowman’s testimony and statements to evaluating and treating physicians
involving things such as his marijuana usage, his feelings about the 2003 kidnapping, and his
interactions with the pilot after the work incident. Based upon these inconsistencies, the
Commission found that Bowman “[wa]s an unreliable witness,” and “[w]here [the Commission
was] unable to rely on [Bowman’s] self-reported subjective complaints and symptoms, it follows
that [it] c[ould] not rely on the causation opinions from Dr. Daniel that were substantially
derived therefrom.” Accordingly, the Commission deemed “Dr. Daniel’s testimony
insufficiently persuasive to satisfy [Bowman’s] burden of proof,” and, therefore, “the accident of
July 16, 2007, was not the prevailing factor causing claimant to suffer any psychiatric condition
or disability.” The Commission expressly declined “to weigh the relative credibility of [CMA’s]
contrary expert medical opinion evidence from Dr. Stillings” in light of its determination that
“the opinions from Dr. Daniel [were] insufficient to satisfy [Bowman’s] initial burden of proof
with respect to the issue of medical causation.” Bowman appeals.
Standard of Review
“We review the whole record to determine whether there is sufficient competent and
substantial evidence to support an award under the Workers’ Compensation Law or if the award
is contrary to the overwhelming weight of the evidence.” Smith v. Capital Region Med. Ctr., 458
S.W.3d 406, 414 (Mo. App. W.D. 2014).
The findings of the commission as to the facts, if supported by competent and
substantial evidence and in the absence of fraud, shall be conclusive, and the
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jurisdiction of the appellate court shall be confined to questions of law. The
court, on appeal, may modify, reverse, remand for rehearing, or set aside the
decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the
making of the award.
§ 288.210.1 “When the Commission affirms and adopts the ALJ’s award, we review the ALJ’s
findings as adopted by the Commission.” Angus v. Second Injury Fund, 328 S.W.3d 294, 297
(Mo. App. W.D. 2010) (quoting ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo.
App. W.D. 2007)).
Analysis
Bowman raises three claims on appeal. First, he argues that the Commission erred in
finding Dr. Daniel’s opinion regarding medical causation “insufficiently persuasive to satisfy
[Bowman’s] burden of proof.” Second, he argues that the Commission erred in finding that
Bowman’s preexisting psychiatric injury, rather than the 2007 work incident, was the prevailing
factor in causing Bowman’s medical condition and disability, and that he was entitled to
compensation because the 2007 work incident was the prevailing factor in either causing the
medical condition or exacerbating the preexisting medical condition. Finally, Bowman argues
that the Commission erred in determining that there was no Second Injury Fund liability as a
result of its determination that Bowman’s preexisting injury was the prevailing factor and that
the 2007 work incident was not the prevailing factor. Finding no error, we affirm.
1
All statutory citations are to the Revised Statutes of Missouri (2000), as updated through the 2015
Cumulative Supplement, unless otherwise noted.
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A. The Commission’s finding that Dr. Daniel’s opinion was insufficiently persuasive to
support Bowman’s burden of proof was supported by competent and substantial
evidence.
In his first point, Bowman argues that the Commission erred in finding that Dr. Daniel’s
causation opinion was based upon Bowman’s inconsistent and unreliable statements, rendering
Dr. Daniel’s opinion insufficiently persuasive to meet Bowman’s burden of proof because—he
claims—the Commission effectively substituted its own opinion on causation. We disagree.
Though it is true that “[t]he commission may not substitute an administrative law judge’s
personal opinion on the question of medical causation of [an injury] for the uncontradicted
testimony of a qualified medical expert,” Angus, 328 S.W.3d at 300 (quoting Wright v. Sports
Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994)), here, the Commission merely found
Dr. Daniel to be unpersuasive, and “we defer to the Commission on issues involving the
credibility of witnesses and the weight given to their testimony.” Seifner v. Treasurer of
State-Custodian of Second Injury Fund, 362 S.W.3d 59, 63 (Mo. App. W.D. 2012).
To begin, the Commission expressly found Bowman to be “an unreliable witness.” This
finding was based upon the following “material inconsistencies”:
[O]n July 25, 2007, and August 20, 2009, during psychiatric treatment visits at
University Hospital, [Bowman] admitted daily use of marijuana as a “sacrament.”
But [Bowman] told Dr. Daniel at his evaluations on January 13 and 19, 2010, that
his history of using marijuana was merely “sporadic,” and that he wasn’t then
using marijuana at all. [Bowman] then admitted to Dr. Stillings he was “still”
smoking marijuana “on a daily basis” as of January 3, 2012. [Bowman]’s
apparent failure to disclose to Dr. Daniel the extent of his use of a non-prescribed
psychoactive drug undermines the persuasive force of Dr. Daniel’s expert
opinions.
[Bowman] also told Dr. Daniel he felt he would be killed by the armed assailant
in 2003, yet he told Dr. Stillings the opposite, and testified at the hearing before
the administrative law judge that he was not in fear for his life at that time.
[Bowman]’s unwillingness or inability to consistently describe his reaction to the
2003 event casts doubt on the ability of the diagnosticians to appropriately
evaluate the significance of that event upon [Bowman]’s overall presentation.
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[Bowman] testified at the hearing before the administrative law judge that he
couldn’t remember ever receiving an apology from the pilot who assaulted him at
work. Yet, on August 3, 2007, [Bowman] told his therapist at University Hospital
that the pilot had called and apologized to him, and that as a result he felt
conflicted about continuing to pursue legal action against this individual.
[Bowman]’s unwillingness or inability to consistently recount these circumstances
casts doubt on his testimony as a whole, including his description of subjective
complaints and symptoms referable to the accident.
“It is well established that the Commission is free to believe or disbelieve any evidence
and that we defer to the Commission’s credibility determinations.” Smith v. Capital Region
Med. Ctr., 412 S.W.3d 252, 262 (Mo. App. W.D. 2013). The bulk of Bowman’s arguments
suggest that the Commission abused its discretion in determining that Bowman was an unreliable
witness. But these arguments simply ignore our standard of review, which requires that “[t]he
findings of the commission as to the facts, if supported by competent and substantial evidence
and in the absence of fraud, shall be conclusive.” § 288.210. Every basis upon which the
Commission deemed Bowman unreliable is supported by the record. Bowman has made no
allegations of fraud. Thus, the Commission’s determination of Bowman’s credibility “shall be
conclusive.” And because the only objective test Dr. Daniel administered returned an invalid
result, he was forced to rely solely on Bowman’s unreliable “self-reported subjective complaints
and symptoms” to reach his conclusions.2 Doing so undermined the persuasive value of
Dr. Daniel’s opinion.
But Dr. Daniel’s reliance on Bowman’s unreliable subjective complaints was not the only
basis for the Commission’s determination that Dr. Daniel was not persuasive. The
Commission’s determination was also based upon “the issues identified by the administrative
law judge in his award.” Like the Commission, the ALJ found Dr. Daniel unpersuasive, but for
2
“In determining compensability and disability, where inconsistent or conflicting medical opinions exist,
objective medical findings shall prevail over subjective medical findings. Objective medical findings are those
findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.” § 287.190.6(2).
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different reasons. Specifically, the ALJ questioned Dr. Daniel’s attention to detail in reaching
his conclusions:
I find it very difficult to believe that Dr. Daniel did any type of thorough review
of [Bowman]’s treatment records, particularly the records from Green Meadows
Adult Psychiatry Clinic. Dr. Daniel obviously did not know that [Bowman] was
having panic attacks 2-3 times a month prior to July 16, 2007. It is almost
impossible to believe that Dr. Daniel reviewed the August 1, 2007 [record] quoted
above where [Bowman] and his therapist agree that [Bowman] suffered from
classic PTSD symptoms from and after the 2003 robbery/kidnapping incident. As
Dr. Daniel also states, “(d)etailed inquiry did not indicate that [Bowman] has any
substance abuse-related legal or occupational problems[,”] it is extremely difficult
to see how he could miss the references to [Bowman]’s daily marijuana use in the
July and August 2007 records, and how he could not see that [Bowman] was
being treated for “cannabis dependence” and how Dr. Daniel could miss the many
references to [Bowman]’s legal problems involving marijuana possession, drug
court and probation.
We find each of these determinations to be fully supported by the record.
This is not a case where the Commission has substituted either the ALJ’s personal
opinion or its own in place of the medical experts on the issue of causation. In his second point
(which will be discussed below), Bowman argues that the Commission erred in finding that the
2003 robbery/kidnapping incident, rather than the 2007 work incident, was the prevailing factor
in causing his medical condition and disability. But Bowman misreads the Commission’s
supplemental decision. Though the ALJ offered an alternative source of causation (the 2003
robbery/kidnapping), the Commission did not adopt that part of the ALJ’s decision.3 Unlike the
ALJ, the Commission identified no alternative source of causation. Instead, the Commission
merely found that Bowman failed to meet his burden of proving that the 2007 work incident was
the prevailing factor causing his medical condition and disability. And this finding was the sole
purpose for the Commission writing a supplemental decision: “We write to make clear that our
3
The ALJ’s conclusion also did not constitute a substitution of his own personal opinion for that of
Dr. Daniel, as the ALJ’s conclusion was based upon Dr. Stillings’s evaluation and opinions.
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analysis does not turn on the simple either/or question whether the 2003 or 2007 event caused
[Bowman] to suffer the medical diagnosis of PTSD.”
This case is largely similar to our decision in Seifner. In that case, the claimant presented
a medical expert to support the claimant’s claim that repetitive motion required to perform his
work was the prevailing factor in causing his medical condition. Seifner, 362 S.W.3d at 62. The
Second Injury Fund did not present any countervailing experts, but the Commission nevertheless
denied compensation on the ground that the claimant failed to meet his burden of proof regarding
causation. Id. The basis for the Commission’s decision was that the claimant’s expert lacked
credibility because of his reliance on the claimant’s inconsistent subjective complaints, and
because the expert was impeached by the claimant’s hearing testimony regarding how the
claimant performed his job, which called into question the expert’s opinion that repetitive motion
caused the claimant’s medical condition. Id. at 63. Like Bowman does here, the claimant in
Seifner argued that the Commission was improperly substituting its own opinion for the
uncontradicted medical expert as to causation. Id. at 66. This court disagreed, noting that “the
Commission did not form its own medical opinion as to causation in this case. Instead, the
Commission found that [the expert’s] opinion was significantly impeached and was therefore not
credible on the issue of causation.” Id. at 67. This court concluded, “Where the factual basis of
[the expert’s] causation opinion was impeached, the Commission did not err in disregarding it
and finding that [claimant] had not adequately proven the element of causation.” Id.
Just as in Seifner, the Commission here determined that the factual basis for Dr. Daniel’s
opinion (i.e., Bowman’s subjective complaints) was impeached because of Bowman’s
inconsistencies and Dr. Daniel’s apparent failure to thoroughly review Bowman’s medical
records—a deficiency pointed out by CMA’s expert, Dr. Stillings. Thus, just as in Seifner, “the
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Commission did not err in disregarding it and finding that [Bowman] had not adequately proven
the element of causation.” Id. In short, because the Commission’s factual determinations of
both Bowman’s credibility and the persuasive value of Dr. Daniel’s opinion based thereon are
supported by competent and substantial evidence, and because Bowman has made no allegations
of fraud, these findings are conclusive. Point I is denied.
B. The Commission’s finding that Bowman failed to meet his burden of proof was
supported by competent and substantial evidence.
In his second point, Bowman argues that the Commission erred in determining that the
2003 robbery/kidnapping incident, rather than the 2007 work incident, was the prevailing factor
causing his medical condition and disability. As noted above, however, the Commission
expressly refused to make this determination, and instead simply found that Bowman failed to
meet his burden of proving that the 2007 work incident was the prevailing factor in causing his
medical condition and disability. We find no error in the Commission’s determination.
“The burden of proving an entitlement to compensation . . . is on the [claimant].”
§ 287.808. “An injury by accident[4] is compensable only if the accident was the prevailing
factor in causing both the resulting medical condition and disability.” § 287.020.3(1). “‘The
prevailing factor’ is defined to be the primary factor, in relation to any other factor, causing both
the resulting medical condition and disability.” Id. “An injury is not compensable because work
was a triggering or precipitating factor.” § 287.020.2.
Here, the only evidence Bowman offered in support of his claim that the 2007 work
incident was the prevailing factor in causing his medical condition was the opinion of Dr. Daniel.
And, as discussed above, the Commission found Dr. Daniel unpersuasive—a finding based upon
competent and substantial evidence. Without Dr. Daniel’s opinion, Bowman simply did not
4
Both parties agreed that the 2007 work incident constituted an “accident” under § 287.020.2.
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carry his burden of proving that the 2007 work incident was the prevailing factor in causing his
medical condition.5 See Seifner, 362 S.W.3d at 67.
Point II is denied.
C. The Commission’s finding that there was no Second Injury Fund liability was
supported by competent and substantial evidence.
In his final point, Bowman again argues that the Commission erred in finding that
Bowman’s preexisting injury or condition, rather than the 2007 work incident, was the prevailing
factor in causing his injury and disability, but he argues in this point that the error was in denying
Second Injury Fund (SIF) liability, rather than employer liability. Bowman suggests that SIF
liability is triggered “when the accident causes the preexisting non-disabling condition to
escalate to the level of a disability.” We disagree.
“To establish [SIF] liability, the claimant must show ‘either that (1) a preexisting partial
disability combined with a disability from a subsequent injury to create permanent and total
disability or (2) the two disabilities combined to result in a greater disability than that which
would have resulted from the last injury by itself.’” Portwood v. Treasurer of State of
Mo.-Custodian of the Second Injury Fund, 219 S.W.3d 289, 292 (Mo. App. W.D. 2007) (quoting
Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. W.D. 2004)). “Regardless of which
theory a claimant uses, ‘[w]hen a claim is made against the [SIF] for permanent disability
compensation, statutory language and case law make it mandatory that the claimant provide
evidence to support a finding, among other elements, that he had a preexisting permanent
5
Bowman offered evidence from Gary Weimholt, a vocational rehabilitation expert, on the issue of
whether the 2007 work incident was the prevailing factor in causing his disability. Neither the ALJ nor the
Commission made any findings regarding Weimholt’s conclusion that Bowman was totally disabled solely as a
result of the 2007 work incident. Accepting Weimholt’s conclusion as true, Bowman is still not entitled to
compensation, as it was his burden to prove that the 2007 work incident was the prevailing factor in causing both the
medical condition and disability. § 287.020.3(1). The Commission determined that Bowman failed to meet his
burden to prove causation as to the first inquiry required by the statute, the cause of the medical injury. Therefore,
the Commission never reached the issue to which Weimholt’s testimony was relevant—whether the work incident
was the prevailing factor in causing the disability.
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“disability.”’” Id. (quoting Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo. App. E.D.
1999)). In other words, SIF liability is triggered only “by a finding of the presence of an actual
and measurable disability at the time the work injury is sustained.” Id. (quoting E.W. v. Kansas
City Mo. Sch. Dist., 89 S.W.3d 527, 537 (Mo. App. W.D. 2002)). “The disability, whether
known or unknown, must exist at the time the work-related injury was sustained and be of such
seriousness as to constitute a hindrance or obstacle to employment . . . .” Id. (quoting Messex,
989 S.W.2d at 214).
“Preexisting conditions are not denominated ‘disabilities’ as of the date of the second
injury simply because, at some point in the future, they combine with that injury to render the
claimant permanently . . . disabled.” Id. at 293 (quoting Gassen, 134 S.W.3d at 81). Under the
pre-2005 version of the workers’ compensation law, an employer could be “liable where an
asymptomatic preexisting condition that did not previously interfere with work duties bec[a]me[]
symptomatic and result[ed] in an overall disability only after being aggravated by a work injury.”
Id. at 293-94. But not only is that no longer the law, post-2005 amendments, it also has never
been the law with regard to SIF liability. Id.
As noted above, the preexisting injury must have constituted a disability of sufficient
severity that it “constitute[d] a hindrance or obstacle to employment” before SIF liability can be
triggered. § 287.220.2. Here, Bowman candidly acknowledges that “Dr. Daniel’s opinion, as
well as the vocational expert’s opinion, was that [Bowman]’s pre-existing psychological
condition was not a hindrance to his employment or re-employment.” Without any evidence that
Bowman’s preexisting condition constituted a hindrance or obstacle to employment as of the
2007 work incident, there simply is no basis for SIF liability.
Point III is denied.
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Conclusion
The Commission did not err in denying Bowman’s request for compensation. Its “Final
Award Denying Compensation” is affirmed.
Karen King Mitchell, Presiding Judge
Cynthia L. Martin and Gary D. Witt, Judges, concur.
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