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Kerns v. Midwest Conveyor2/10/2004
evidence relied upon by the Commission for its finding was incompetent in that it was not based upon objective testing.
The record indicates that in concluding that the respondent was suffering from cognitive deficits, physical pain, and resulting depression, Drs. Koprivica and Katf relied, in significant part, on his subjective complaints. The appellant contends that this was improper. In support of this contention, the appellant cites Davies v. Carter Carburetor, 429 S.W.2d 738, 751 (Mo. 1968). Davies was a workers' compensation case, which involved, inter alia, the issue of whether a doctor's testimony as to his diagnosis was competent evidence inasmuch as it was based on the claimant's subjective complaints. Id. at 750. While Davies can be cited for the proposition that a physician's diagnosis may not be based upon statements made to physicians concerning the circumstances of a past injury , id. at 751, it cannot be cited for the proposition asserted by the appellant here. In fact, it can be cited for the exact opposite. In that regard, the Davies court stated that the "prevailing rule" was that: "A physician, in stating his expert opinion on a patient's condition, may testify to what he personally observed and also to what the patient said (an exception to the hearsay rule) concerning his present, existing symptoms and complaints." Id. See also Lawton v. Trans World Airlines, Inc., 885 S.W.2d 768, 771 (Mo. App. 1994); Avery v. City of Columbia, 966 S.W.2d 315, 322 (Mo. App. 1998).
For the reasons stated, the expert medical evidence relied upon by the Commission to find that the respondent was permanently and totally disabled was competent on that issue. Having so ruled, we now turn to the appellant's alternative claim in this point that the Commission's finding that the respondent was permanently and totally disabled was against the weight of the evidence.
An award of workers' compensation benefits "that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Hampton, 121 S.W.3d at 223. A decision is against the overwhelming weight of the evidence if we are left with a firm impression that it is wrong. King v. City of Independence, 64 S.W.3d 335, 338 (Mo. App. 2002).
While the record indicates that there was evidence on both sides of the issue of whether the respondent was permanently and totally disabled, the Commission's finding, that he was, was not against the overwhelming weight of the evidence. In claiming that it was, the appellant primarily relies on the contrary expert medical evidence that it presented showing that the respondent suffers only from a perceived, rather than an actual, inability to function. However, our courts have consistently held that the Commission, in cases of competing expert medical evidence, is free to pick and choose which expert to believe, Bloss v. Plastic Enters., 32 S.W.3d 666, 671 (Mo. App. 2000), and, thus, the Commission's finding was not against the overwhelming weight of the evidence because it sided with Drs. Koprivica and Katf over Drs. Rosenberg and Pratt.
As to the cognitive deficits, physical pain, and resulting depression, found by the Commission as rendering the respondent permanently and totally disabled, the respondent testified that he has difficulty remembering things, even routine things such as taking his medication and turning off the stove, has constant pain in his back and hips, and suffers from depression such that he has difficulty getting out of bed in the morning. In that regard, Dr. Koprivica found that the respondent suffers from vestibular dysfunction, tinnitus, and mild brain dysfunction. He further found that the resp
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