Phillip Gunn v Treasurer of the State of MO
Release date: May 4, 2020
Venue: Southern District
Summary: Court of Appeals affirms a denial of a Fund claim seeking total benefits on the basis of prior Parkinson's disease, based on a failure in the burden of persuasion to show evidence of a combination when the prior condition alone rendered claimant unemployable.
SD 36380 SD 36410
https://www.courts.mo.gov/file/SD/Opinion_SD36205.pdf
Cast:
Lynch, Hon.
Parmet
Comments:
The claimant left his job in 2006, and the year before he had worsening Parkinson's disease. He settled a claim of occupational hearing loss and sought further compensation benefits from the Fund. The Fund's defense relied upon evidence that claimant was unemployable because of Parkinson's alone and he maintained employment only because he was highly accommodated. The Commission found claimant's complaints related to tinnitus could be related to Parkinson's in whole or in part, and the inability to continue working was due to Parkinson's alone. The Commission denied benefits for failure to show a "combo."
The Court revisits two themes in several recent cases: the distinction between the burden of production and burden of persuasion and the burden of proof how to raise a 287.495.1(4) error.
The employee has the burden of production and the burden of persuasion. The court assumes claimant met the burden of production, but failed in its burden of persuasion to convince the fact-finder of his conclusion. There is no presumptive validity in the burden of persuasion by satisfying only the burden of production. The employee's brief "does not address or challenge the Commission's conclusion that he failed to carry that burden here."
The Court notes the Commission had made a credibility determination of the expert to support its conclusion that claimant was unemployable solely because of the pre-existing condition, despite the assertion by appellant that the evidence had inconsistencies and was not persuasive. The court notes that evidence in favor of the Fund the claimant "chose to completely ignore in his statement of facts."
The court notes a 287.495.1(4) challenge has a specific procedure and the challenger in this case must "marshal all record evidence favorable to the award" (which was not done in the statement of facts) and succeeds only when there is the absence of sufficient competent evidence, evidence contrary to to the award. A credibility attack has "no place and serves no purpose" with that type of alleged error.
The court notes claimant in his reply brief asserted the alleged error was 287.495.1(4) despite the absence of the exact legal reason in the initial brief as required by Rule 84.04(d)(2)(B)
The court notes decisions which discuss semantic problems to designate a "non-award" as an "award", and that it is illogical to apply a "competent and substantial evidence" standard of error to show evidence as a denial of benefits when the party seeking compensation fails to satisfy the burden of persuasion. Factual findings are necessary only as a basis to award benefits, and are not necessary when there is a failure to asset a cognizable legal claim.
