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Fisher v. Waste Management of Missouri1/30/2001
s without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo. App. 1995). Findings of ultimate facts reached through application of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo. 1965). Where the parties do not dispute the evidentiary facts, the Commission's award becomes a question of law. Id.
Where decisions are based on determinations of fact, we review the whole record in the light most favorable to the decision. West, 804 S.W.2d at 744. We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Wiele v. National Super Markets, Inc., 948 S.W.2d 142, 145 (Mo. App. 1997). In the absence of fraud, the factual findings made by the Commission within its powers are conclusive and binding. Section 287.495.1; Wiele, 948 S.W.2d at 145.
For his first point claimant contends that the ALJ's award of 30% permanent partial disability of the upper right extremity at the level of the shoulder was supported by the evidence and that the Commission should have deferred to the ALJ's finding.
The ALJ found Dr. J. H. Morrow's 45% permanent partial disability rating was too high given the fact that claimant had been able to continue his demanding employment duties and Dr. Nogalski's three percent permanent partial disability rating was too low because it did not account for chronic pain. However, the Commission found Dr. Nogalski, "a board certified orthopedic surgeon and treating physician in these cases," "the more persuasive of the two medical opinions in light of his medical expertise and his personal involvement in employee's treatment." Both of these doctors testified by deposition. Because neither of these doctors appeared before the ALJ to provide live testimony, "'the Commission could determine [their credibility] from the written record equally well as' the ALJ." Davis v. Research Medical Center, 903 S.W.2d 557, 573 (Mo. App. 1995) (quoting Frazier v. National Bearing Division, 250 S.W.2d 1008, 1011 (Mo. 1952)). Therefore, we must defer to the Commission's credibility determinations regarding these two witnesses and disregard the ALJ's determinations. Id.; Winsor v. Lee Johnson Const. Co., 950 S.W.2d 504, 510-11 (Mo. App. W.D. 1997). Further, the Commission was not bound by the exact percentage assigned by either expert and was free to find a disability rating higher or lower than that expressed in the medical testimony. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 731 (Mo. App. 2000). The Commission's determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within the Commission's province and we will not substitute our judgment for that of the Commission even if we would have made a different initial conclusion. Id.
The Commission's determination that claimant had a 10% permanent partial disability was supported by substantial and competent evidence. Point one is denied.
For his second point claimant argues that the surveillance videotapes were "statements" within the meaning of Section 287.215 RSMo (1994) and that the employer was required to provide the tapes to claimant in response to claimant's request for "statements" under Section 287.215. Claimant further argues that because the employer did not provide these tapes to claimant, the Commission should have excluded them. Because this is a question of law, we do not defer to the Commission's judgment. West, 804 S.W.2d at 744.
Section 287.215 provides:
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