Kevin Parvin v Camcorp Environmental
Missouri Employers Mutual
Release Date: February 18, 2020 (Accident date September 2013)
Venue: Southern District (Div. 2) (Newton County)
Plot Summary: Court of Appeals affirms 2-1 denial of benefits based on credibility.
No. SD 36281 2020 Mo App. Lexis 194
https://www.courts.mo.gov/file.jsp?id=150513
https://labor.mo.gov/sites/labor/files/decisions_wc/ParvinKevin13-10233908-16-19.pdf
Cast:
Scott, Hon. (original award ALJ Fisher)
Alberhasky, atty
Sparlin, atty
Dr. Koprivica
Dr. Parmet
Comments: Claimant, 56, was a construction worker who alleged occupational disease to his arms, shoulders and back. The ALJ and a majority of Commission denied benefits based on adverse credibility findings concerning claimant and his expert, Dr. Koprivica.
The ALJ found inconsistencies in claimant's medical history, conflicting testimony about his activities at work. "In conclusion, the inconsistent history and substance abuse issues cause me to strongly question Mr. Parvin as a reliable historian".
The court found the appellant did not follow the analytic framework for challenges for alleged error under 287.495.1(4) which required:
1. identify a factual proposition necessary to sustain the Commission's result
2. marshal all evidence in the record supporting that factual preposition, subject to the commission's authorized factual and credibility determinations, explicit or implicit, and viewing the record objectively where there are no explicit or implicit findings
3. Demonstrate why the evidence from the second step lacks sufficient probative force on the issues, such that the Commission could not have reasonably believed the factual proposition set forth in step on.
The court questioned where denials are based on lack of evidentiary support require the same standard of review to be consistent with reviews in civil judgments against the parties with the burden of proof.
The court found it could not take claimant's alleged error "seriously" about the failure to call a witness (one of the owners) when the record showed claimant declined to call the witness.
The court found no confusion that the Commission misunderstood the nature of the claim as one of an accident when the record identified the issues as occupational disease.
The court further found the claimant "unabashedly" asked the court to reverse a denial because it regarded its expert as more credible.
