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Hay v. Schwartz12/29/1998
e case for benefits, this evidence is presumed credible and could not be ignored by the Board. Knapp, 738 S.W.2d at 913.
It could be argued that the Board made an implicit finding that Dr. Kling's and Hay's testimony was not credible in that it noted in its decision that it had assessed their credibility and then denied benefits. However, this is contrary to the holding in Knapp. In Knapp, three physicians reported to the Board that the applicant for benefits was permanently and totally disabled from his job but despite their undisputed medical opinions, the Board denied benefits. Id. at 906-07. Conceivably the Board and the applicant's employer could have argued in Knapp that, because the Board denied benefits, it implicitly found that the physicians were not credible. However, the Knapp court held that, in spite of the Board's denial of benefits, the Board was required to make a "specific finding" of credibility, impliedly rejecting the notion that the mere denial of benefits was tantamount to a specific finding of no credibility as to the witnesses in question. Id. at 913.
Following Knapp, in our review of the Board's decision here, we cannot infer that the Board made a finding of incredibility as to Dr. Kling and Hay because it denied him benefits. Century State Bank v. State Banking Bd., 523 S.W.2d 856, 858-59 (Mo. App. 1975). As instructed by Knapp, the Board here was required to make a "specific finding," not an implicit finding, that the testimony of Dr. Kling and Hay and the reports of the other three physicians were incredible or unworthy of belief, before it could disregard such evidence. Knapp, 738 S.W.2d at 913. Because the Board did not make such a finding, the witnesses' testimony and reports were presumed credible, and the Board could not ignore them in its decision.
Having found that the Board could not ignore the evidence in question in making its decision to deny Hay benefits, the next issue for us to decide is whether this evidence constituted substantial and competent evidence supporting Hay's application for benefits.
The weight to be given evidence is determined by looking at its weight in probative value, not its quantity or amount. Osgood v. Worm World, Inc., 959 S.W.2d 139, 141 (Mo. App. 1998) (citation omitted). Substantial evidence is "evidence that if true has probative force upon the issues; it includes only competent evidence, not incompetent evidence." Knapp, 738 S.W.2d at 913 (citation omitted). Competent evidence is that which is relevant and admissible evidence which is capable of establishing the fact in issue. Knapp, 738 S.W.2d at 913 (citation omitted).
Here, as discussed, supra, all four physicians agreed that Hay had a mental disability, which three of them believed was permanent, such that he could not perform the necessary duties of a fire marshall. As to the cause of Hay's disability, Dr. Kling testified that his permanent mental disability was the result of his job as fire marshall, as did the District's fire chief. This evidence constituted substantial and competent evidence to make Hay's prima facie case for benefits.
Inasmuch as Hay made a prima facie case for benefits, the burden shifted to the Board and the District to rebut his claim with substantial and competent evidence showing either that he was not permanently disabled or that his disability was not the proximate result of an employment injury or disease. Knapp, 738 S.W.2d at 913. And, as discussed, supra, this burden included showing the medical causation, nature, extent, and permanency of his disability, which are medical questions required to be determined with scientific evidence. Knapp, 738 S.W.2d at 913-14; Clevenger, 600 S.W.2d at
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