Court finds claimant identified a work hazard from a slippery surface and reverses a denial based on lack of credibility

 
Credibility findings are never disturbed by the court of appeals.  Right?

The case involves a highly educated 55-year old teacher from Turkmenistan who never goes back to work after she falls coming into work from the parking lot.  MARAL ANNAYESA V SAB OF THE TSD OF THE CITY OF ST. LOUIS AND TREASURER OF MISSOURI  ED 107558 (July 30, 2019)(Chief Judge Dolan)

In the rare case, the Court finds the Commission's decision not to believe the claimant was arbitrary
 just because she couldn't initially identify why she fell, or that she didn't initially  tell her doctors why she fell, or she was a little late getting to the point in her testimony.

She testified  eventually that she fell because the entrance had no rugs and had water or dirt or something.  Her medical records mentioned it  within a few weeks.  The claimant has the burden to only identify a risk, and she has no duty to ever mention at  a risk if it  can be established by reasonable inference.  There were no rugs, remember? 

The Commission can disbelieve the witness and it's normally game over unless there are some legal error.    But here's the rub.  The basis for the disbelief cannot be arbitrary.   The Court suggests the commission made the finding of credibility to be questionable because the discussion of hazard did not occur as a "focus" of the testimony until it was elicited by the attorney.  The court appears to conclude the lack of credibility was rooted in how the questions were asked and not the answers that were elicited and the Commission never came out in big letters and said it did not believe her.

The Court notes there was no evidence which further  supports the Commission's finding that there was no hazard.  Just because there was no defect in the floor did not mean there wasn't a hazard on its surface. 

The employer relies on a defense of failure of proof that the claimant would not be found credible on the issue of injury by accident by omissions of a specific identifiable hazard in her initial medical history or initial report.  The defense relies upon the evidentiary nutshell  that a story first in time is more credible than a second, more detailed, story, that makes a better case.

The defense failed to convince the court in two respects.  First,  the court found inconsistent statements as to cause or omissions in medical history not material because there was no reason for any doctor to 'get into that.'  This misses an important and fundamental  point about emergency medicine.   Getting into causes why someone falls is pivotal to medical history because when people just fall for no reason it has medical consequence and directly impacts decisions about care.  To suggest there is no reason to 'get into that'  because it is not important is a strange conclusion. that it would irrelevant to a plan of care or diagnosis.  Additional testimony on the issue may have established a foundation for a different inference.   Nor is it clear the defense offered any evidence of an idiopathic cause to explain why she would spontaneously fall. 
  

A good risk management practice in an age of cell phones is to always take pictures of an accident scene because it might be important one day what was there or not there, regardless of what a claimant has to say.   This type of pro-active position not only helps defenses in these types of cases but promotes safety if a hazard actually exists.  By inference the employer  was faulted because it did  not investigate a hazard when claimant never said there was a hazard and did not produce evidence or testimony that it was fine.   This is the conundrum of failing to prove a negative. 

 
The case is remanded to address causation. 

The Commission did not address the issue of credibility of the medical experts in its initial award and limited its finding on a failure to prove injury by accident by the lack of an identifiable work risk. 

The ALJ noted the lack of objective findings impacted his credibility findings. The dissenting commissioner felt was perfectly consistent with her alleged somatic disorder and there was no reason someone could not be disabled based without any objective findings. 

ALJ Teer noted found opinions of claimant’s medical experts were specious. 

 

“Initially, the Court finds, as to Claimant's credibility, she has failed to provide credible

testimony to this Court. It is clear Claimant's description of her injuries and their subsequent

effects verge on the point of malingering. As all, if not most, of Claimant's medical expert

testimony relies is substantial part on her own subjective description of her maladies, this Court

finds the conclusions subsequently provided are equally specious. There is little or no objective

medical finding to support any of Claimant's anomalies. Claimant has not met her burden of

showing the incident of January 8, 2013 was the prevailing factor causing the physiological

and/or psychological complaints. This Court, therefore shall deny this claim on the basis of lack

of medical causation.”

The court  finds the Commission erroneous in its conclusion that showing up at work and falling at the entrance was not in the course of employment even without 'clocking in.'  That finding is not unexpected. 

ED 107558  $ https://www.courts.mo.gov/file.jsp?id=142855

Prequel 

https://labor.mo.gov/sites/labor/files/decisions_wc/AnnayevaMaral13-0009091-17-19.pdf