THE DOE RUN COMPANY, Employer and AMERICAN ZURICH INSURANCE COMPANY, Insurer v. THOMAS A. FENWICK

THE DOE RUN COMPANY, Employer, )
and AMERICAN ZURICH INSURANCE )
COMPANY, Insurer, )
)
Appellants, )
)
vs. ) No. SD36499
)
THOMAS A. FENWICK, ) FILED April 29, 2020
)
Respondent. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Appellants charge that two workers’ compensation awards were “contrary
to the overwhelming weight of the competent and substantial evidence” in five
different respects. 1 All these arguments ignore the required framework for
asserting such complaints, so none has persuasive or analytical value and each fails
summarily.
1Respondent’s claims were tried and are appealed together. Appellants assert
three points relied on, collectively purporting to assert five against-the-weight
challenges. All of Appellants’ points violate Rule 84.04(d)’s form template, for
which they have “no excuse.” Nichols v. Belleview R-III Sch. Dist., 528
S.W.3d 918, 927 (Mo.App. 2017). Even worse, given Appellants’ particular
challenges, is their statement of facts. Rule 84.04(c) mandates “a fair and concise
statement” of relevant facts “without argument.” Yet Appellants emphasize only
evidence favorable to them, despite the Commission’s contrary credibility findings
(note 3 infra), while virtually ignoring Respondent’s proof. This does not
substantially comply with Rule 84.04(c). Nolan v. Degussa Admixtures, 246
S.W.3d 1, 3 (Mo.App. 2008).
“An award that is contrary to the overwhelming weight of the evidence is, in
context, not supported by competent and substantial evidence.” Hampton v.
Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Appellate courts
evaluate such challenges “by examining the evidence in the context of the whole
record.” Id. (our emphasis). Therefore, to make an effective Hampton argument
as to any of their points, Appellants needed to:
1. Marshal all record evidence favorable to the award;
2. Marshal all unfavorable evidence, subject to the Commission’s
explicit or implicit credibility determinations; and
3. Show “in the context of the whole record” how the unfavorable
evidence so overwhelms the favorable evidence and its reasonable
inferences that the award “is, in context, not supported by
competent and substantial evidence.” Id.
See, e.g., Schlereth v. Aramark Uniform Services, 589 S.W.3d 645, 652-53
(Mo.App. 2019); Harris v. Ralls County, 588 S.W.3d 579, 596, 601 (Mo.App.
2019); Customer Eng’g Services v. Odom, 573 S.W.3d 88, 91 & n.2 (Mo.App.
2019); Robinson v. Loxcreen Co., 571 S.W.3d 247, 250-51 (Mo.App. 2019);
Nichols, 528 S.W.3d at 927-28; Maryville R-II Sch. Dist. v. Payton, 516
S.W.3d 874, 881 (Mo.App. 2017); Lincoln Univ. v. Narens, 485 S.W.3d 811,
821 (Mo.App. 2016); Brune v. Johnson Controls, 457 S.W.3d 372, 377
(Mo.App. 2015); Riley v. City of Liberty, 404 S.W.3d 434, 440 (Mo.App. 2013);
Jordan v. USF Holland Motor Freight, 383 S.W.3d 93, 95 (Mo.App. 2012). 2
Any suggestion that this formula does not apply “is incorrect as a matter of
law.” Schlereth, 589 S.W.3d at 652-53. Courts insist on adherence to this rubric
“because it reflects the underlying criteria necessary for a successful challenge —
the absence of any such criteria, even without a court-formulated sequence, dooms
an appellant’s challenge.” Nichols, 528 S.W.3d at 928. Appellants’ disregard for
2 The three steps we cite derive from Houston v. Crider, 317 S.W.3d 178, 186-87
(Mo.App. 2010), which also stated a four-step formula for against-the-weight-of-
evidence challenges. Id. at 187. Hampton having linked these two types of
challenges in workers’ compensation cases, some cited cases use the three-step
formula (Schlereth, Odom, Robinson, Nichols, Brune) while others list four
steps (Harris, Payton, Narens, Riley, Jordan). It matters not here because
Appellants used neither approach.
2
these requirements robs their arguments of any analytical or persuasive value.
Robinson, 571 S.W.3d at 251; Odom, 573 S.W.3d at 91; Brune, 457 S.W.3d at
377; Jordan, 383 S.W.3d at 95. 3
Having examined the whole record, we cannot declare the Commission’s
awards unsupported by competent and substantial evidence or against the
overwhelming weight of the evidence. We affirm the awards.
DANIEL E. SCOTT, P.J. – OPINION AUTHOR
JEFFREY W. BATES, C.J. – CONCURS
DON E. BURRELL, J. – CONCURS
3 These points would fail anyway. Appellants’ various theories why their experts,
not Respondent and his expert, should have been believed are non-starters when
the Commission expressly found Respondent “persuasive” and his expert “more
credible” and “more persuasive” than Appellants’ experts. Contrary arguments
“invite us to violate our rules of review by substituting our view of witness
credibility for that of the Commission. We cannot and will not do so.” Dwyer v.
Federal Exp. Corp., 353 S.W.3d 392, 395 (Mo.App. 2011). “[W]e defer to the
Commission’s choice between competing medical opinions,” which lies within the
Commission’s sole discretion and is not subject to appellate review. Id.
3