CHICK v. CITY OF CENTRALIA (2026)

Russell Chick (“Chick”) appeals from a final award of the Labor and Industrial Relations Commission (the “Commission”). Chick argues that the Commission erred in the manner in which the Commission directed his employer, the City of Centralia (the “City”), to reimburse him for past medical expenses incurred after the City had refused to provide for such treatment as required by section 287.140.1.¹ Chick argues further that the Commission erred in excluding past medical expenses from the attorney's fee lien, by depriving Chick of due process in considering and deciding matters without notice and an opportunity to be heard, in determining that Chick was not permanently and totally disabled (PTD), and in failing to grant Chick an adverse inference due to the City's failure to provide unedited versions of surveillance footage. The award is reversed in part, affirmed in part, and remanded on the issue of attorney's fees for past medical expenses.

Background

Chick is 59 years old. He worked in manual labor jobs after graduating high school. From 1995 to 2016, he worked for the City as an equipment operator.

In February of 2014, Chick slipped and fell on ice while walking to the maintenance shop behind the water plant. Chick broke his fall with his right arm. Shortly thereafter, Chick felt numbness in his right arm and could not write. Pain went down his right shoulder to his forearm and fingers. Chick reported the injury to his foreman. He was sent for treatment at Boone Clinic. The medical providers at Boone Clinic indicated that Chick should get tested for a brachial plexus injury.

Chick was then directed for treatment with Dr. Runde, who prescribed physical treatment and referred him to an orthopedic physician. He was sent to Dr. Young, who evaluated Chick but did not provide treatment. Chick was then sent back to Dr. Runde, who suggested a second orthopedic referral. The City then refused to authorize further treatment.

Chick then sought treatment on his own with an orthopedic group and was referred to Dr. Mackinnon for brachial plexus nerve damage. Dr. Mackinnon recommended and performed surgery, and then a second surgery. Chick last saw Dr. Mackinnon on December 11, 2014. Chick also received psychiatric treatment in late 2014 and early 2015.

Chick continued to have symptoms of depression, arm pain, and numbness. Chick obtained a medical evaluation with Dr. Schlafly in May of 2015. He was treated for carpal tunnel syndrome and trigger finger syndrome. Dr. Schlafly released Chick on April 18, 2016 with a permanent ten-pound lifting restriction. The parties stipulated that Chick's maximum medical improvement date as April 18, 2016. The City terminated Chick's employment on April 18, 2016.

Following the work injury of February 13, 2014, Chick filed a claim for workers’ compensation.² Chick sought compensation for medical care, mileage, temporary disability, permanent disability, and disfigurement.

On June 10, 2024, a hearing was held before an ALJ. Thereafter, the ALJ issued an award in which the ALJ found that the February 2014 work accident was the prevailing cause of a brachial plexus injury involving Chick's neck, right shoulder, and right forearm; that the work injury was not the prevailing cause of Chick's carpal tunnel syndrome, trigger finger syndrome, or psychiatric conditions; that the City was not responsible for past medical expenses related to the treatment of the brachial plexus injury or other injures; that the City was not responsible for future medical treatment; that Chick was not permanently and totally disabled (PTD); that Chick sustained a 2.5% permanent partial disability (PPD) to the body as a whole, 25% PPD to the shoulder, and 30% PPD to the forearm at the 200-week level as a result of the February 2014 work accident; and that Chick was entitled to five weeks for disfigurement. The ALJ awarded $1,752.80 in TTD, $56,089.60 in PPD, and $2,191.00 for disfigurement.

Chick filed a timely application for review with the Commission and attached to the application a list of asserted errors, challenging, inter alia, the ALJ's finding that Chick was not permanently totally disabled, the ALJ's finding that Chick failed to meet his burden of proof regarding whether he was entitled to past medical expenses, and the ALJ's failure to grant an adverse inference from the City's failure to provide unedited surveillance footage.

Thereafter, the Commission issued its final award allowing compensation, which modified the ALJ's award in part. The Commission adopted the ALJ's finding that Chick was not permanently and totally disabled.

Regarding past medical treatment and expenses, the Commission found that Chick was entitled to be reimbursed for Dr. Mackinnon's treatment and surgeries to address the brachial plexus condition proximately caused by the February 13, 2014 work injury. The Commission found that Chick had produced copies of his medical bills and presented testimony that he had sought care from Dr. Mackinnon after the City refused further treatment. The Commission found that Chick had carried his burden of producing documentation detailing past medical expenses and attesting to the relationship of those expenses to a compensable workplace injury. The Commission found that Chick had established that he had incurred charges of $32,526.48 for treatment from Dr. Mackinnon related to his February 2014 work injury.

The Commission then noted that Chick's private health insurance had paid most of the charges for Dr. Mackinnon's services, and stated that, under such circumstances, the Commission would not require the employer to pay the amount charged for Dr. Mackinnon's treatment to the employee and his attorney, but would instead “order the employer/insurer responsible for resolving charges related to Dr. MacKinnon's [sic] care of $32,526.48 directly with Washington University and Barnes-Jewish Hospital, and to hold the employee harmless in any collection attempts.” The Commission indicated that Chick's attorney had voiced no objection to this approach to resolving his claim for Dr. Mackinnon's past medical expenses, and the Commission referenced counsel's comment at oral argument where counsel had indicated that he did not “intend to make money on medical.”

Regarding the video surveillance evidence, the Commission found that Chick had failed to establish that the City had destroyed, altered, concealed, or suppressed evidence under circumstances manifesting fraud, deceit, or bad faith. The Commission found that Chick was not entitled to an inference that the additional footage would have established that Chick is permanently totally disabled.

The Commission declared that the award, excluding past medical expenses, was subject to a lien in favor of Chick's attorneys in the amount of 25% for necessary legal services rendered.³

One member of the Commission dissented in part as to the Commission's finding regarding whether Chick was permanently totally disabled and as to its method of directing payment of Chick's past medical expenses. The dissenting member stated that she would find that Chick was permanently totally disabled. The dissenting member also indicated that the award of past medical should be paid to Chick and his attorney based on the principles set forth in section 287.270 and Farmer-Cummings v. Pers. Pool of Platte Cnty., 110 S.W.3d 818, 822 (Mo. banc 2003), in accordance with the way the Commission had historically handled such awards.

Chick now appeals to this Court.

Standard of Review

The scope of judicial review of the Commission's decisions in workers’ compensation cases is provided by article V, section 18 of the Missouri Constitution and section 287.495. Article V, section 18 provides that the scope of judicial review of final administrative decisions that are quasi-judicial and affect private rights shall include a determination of whether the agency decision is authorized by law, and, in cases in which a hearing is required, whether the agency's decision is supported by competent and substantial evidence upon the whole record. Mo. Const. art. V, § 18.

Section 287.495 further provides that the Commission's award may be modified, reversed, remanded, or set aside upon the following grounds:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Questions of law are reviewed de novo. Treasurer of State v. Penney, 710 S.W.3d 498, 500 (Mo. banc 2025). “When interpreting statutes, this Court must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and give effect to that intent if possible.” Treasurer of State v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021) (citation omitted). Section 287.800.1 provides that reviewing courts “shall construe the provisions of [ ] chapter [287] strictly.”

In determining whether an administrative decision is supported by competent and substantial evidence upon the whole record, appellate courts do not view the evidence and inferences in the light most favorable to the decision. Spire Missouri, Inc. v. Pub. Serv. Comm'n, 618 S.W.3d 225, 231 (Mo. banc 2021) (citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). Rather, an appellate court reviewing administrative findings under article V, section 18 of the Missouri Constitution considers all of the evidence and reasonable inferences before the administrative tribunal “including the evidence and inferences that the agency rejected in making its findings.” Spire, 618 S.W.3d at 236 n.8 (quoting Seck v. Dep't of Transp., 434 S.W.3d 74, 78-79 (Mo. banc 2014)). This does not mean that the appellate court may substitute its judgment of the evidence for that of the agency, as reviewing courts will defer to the agency's role as the factfinder tasked with performing the function of determining the credibility of witnesses. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (citations omitted). Appellate courts recognize that, as the finder of fact, the Commission “is free to believe some, all or none of any witness's testimony.” Thomas v. Collins & Hermann, Inc., 710 S.W.3d 73, 84 (Mo. App. E.D. 2025) (quoting March v. Treasurer of Mo., 649 S.W.3d 293, 301 (Mo. banc 2022)). However, reviewing courts are authorized to consider whether the agency “could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it.” Hornbeck, 370 S.W.3d at 629 (quoting Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647, 649 (1946)). A decision contrary to the overwhelming weight of the evidence is not supported by competent and substantial evidence upon the whole record. Spire, 618 S.W.3d at 231 (citing Hampton, 121 S.W.3d at 222-23). Where the evidence would warrant either of two opposed findings, the reviewing court is bound by the administrative determination. Hornbeck, 370 S.W.3d at 629.

Analysis

Chick raises five points on appeal. In his first point, Chick argues that the Commission acted in excess of its powers in directing the City to pay the award of past medical expenses directly to medical providers instead of to Chick. In his second point, he makes similar arguments on the basis that the Commission's method of directing payment of past medical expenses and excluding an award of attorney's fees from such an award is contrary to public policy. In his third point, Chick argues that the Commission denied him due process in its manner of directing payment for past medical expenses and excluding attorney's fees from the award of past medical expenses because the Commission decided such matters without appropriate notice and an opportunity to be heard. In his fourth point, Chick argues that the Commission erred in finding that he was not permanently totally disabled. In his fifth point, Chick argues that the Commission erred in failing to grant Chick an adverse inference based on the City's failure to provide unedited surveillance footage, which Chick argues amounted to spoliation.

Due to an overlap of issues, we first address Chick's arguments regarding reimbursement of past medical expenses, then his arguments regarding due process and attorney's fees, then his arguments regarding permanent total disability, and then his arguments regarding spoliation.

Past Medical

Chick argues that the Commission erred in its method of reimbursing him for his past medical expenses by directing that payment be made to the medical providers rather than to Chick. Chick argues that the Commission's method provides a credit to his employer for payments made by a collateral source, such as an employee's private health insurance, despite the fact that section 287.270 expressly prohibits such a credit. Chick points out that his case did not address a scenario in which an employer had authorized treatment prior to the award, but one where Chick had been improperly denied treatment by his employer, such that he was entitled to be reimbursed in the award for expenses he incurred. Chick further points out that the Commission's method of reimbursement does not actually reimburse him for the out-of-pocket expenses he incurred such as deductibles and co-pays, rendering the Commission's method of “reimbursement” inadequate.

Section 287.140.1 requires employers to provide to employees such medical treatment “as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury․” Thus, medical aid is “a component of the compensation due an injured worker under section 287.140.1.” Pruett v. Fed. Mogul Corp., 365 S.W.3d 296, 307 (Mo. App. S.D. 2012) (citation and brackets omitted); see also Erwin v. Midway Arms, Inc., 710 S.W.3d 548, 554 (Mo. App. W.D. 2025) (quoting Abt v. Miss. Lime Co., 420 S.W.3d 689, 704 (Mo. App. E.D. 2014)). The employer has the right to select the medical provider for the treatment the employer provides under section 287.140.1. § 287.140.10. Generally, if an employee wishes to select a different medical provider, then the employee may do so, but at the employee's expense. § 287.140.1. However, when the employer refuses to furnish the needed treatment that the employer was required to provide pursuant to section 287.140.1, then the employer will be held liable for the treatment obtained by the employee. Erwin, 710 S.W.3d at 554-55; Lyman v. Mo. Emps. Mut. Ins. Co., 407 S.W.3d 130, 134 (Mo. App. S.D. 2013) (quoting Poole v. City of St. Louis, 328 S.W.3d 277, 291 (Mo. App. E.D. 2010)); Abt, 420 S.W.3d at 704; Pruett, 365 S.W.3d at 307; Helmig v. Springfield R-12 Sch. Dist., 688 S.W.3d 315, 324 (Mo. App. S.D. 2024) (“The law is clear that when an employer fails to provide medical treatment, the employee may pick his or her own provider and assess the costs against the employer.”).

In Farmer-Cummings, the Missouri Supreme Court recognized a defense for employers to past medical expenses under circumstances in which the employee's medical liability is extinguished, such as through write-offs. Farmer-Cummings, 110 S.W.3d at 821-22. The Missouri Supreme Court also addressed the employee's burden of establishing that the employee was entitled to past medical expenses as well as the employer's burden of establishing that the employee's medical liability had been extinguished. Id. at 822-23.

Regarding the defense for employers, Farmer-Cummings held that a claimant is not entitled to compensation for healthcare provider write-offs and fee adjustments that extinguish the claimant's liability, as compensation for amounts for which the employee was not liable would amount to a windfall rather than compensation. Farmer-Cummings, 110 S.W.3d at 821-22. In recognizing this defense, Farmer-Cummings clarified that the employer was required to reimburse the employee for all medical expenses incurred as a result of the workplace injury and that the employer should not receive an advantage for failing to timely pay medical bills incurred at the employee's expense. Id. at 822. Further, Farmer-Cummings was clear that any benefits from collateral sources that fell within the ambit of section 287.270 were outside of the scope of the defense. Farmer-Cummings, 110 S.W.3d at 821 (“Write-offs and adjustments that extinguish the liability of an injured employee, absent evidence that such a fee adjustment or write-off is the result of a collateral source benefit not provided by the employer (see below), are not ‘fees and charges’, but simply reductions thereof.”) (emphasis added); id. at 823 (“If any of the reductions resulted from collateral sources independent of the employer, they are not to be considered pursuant to section 287.270, and Ms. Farmer-Cummings shall recover those amounts.”).

Section 287.270 provides (as it did when interpreted in Farmer-Cummings), in relevant part: “No savings or insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer's insurer for liability under this chapter, shall be considered in determining the compensation due hereunder ․” The Missouri Supreme Court in Farmer-Cummings recognized what is apparent from the plain language of section 287.270:

This section clearly was intended to allow the employee to benefit from any collateral source the employee might have available to him or her, independent of the employer, whether purchased or not. If the employer has not provided such a source, the employer has no right under the statute to claim benefit from it. Payments from any source other than the employer or the employer's insurer for liability for Workmen's Compensation are not to be credited on Workmen's Compensation benefits.

Farmer-Cummings, 110 S.W.3d at 822 (internal quotations, citations, and ellipsis omitted).⁴

Regarding the parties’ evidentiary burdens, Farmer-Cummings stated that the employee had the burden of producing documentation of the past medical expenses and evidence of the relationship of those expenses to a compensable workplace injury. Id. at 822. Farmer-Cummings then indicated that it was a defense of the employer to establish that the employee was not required to pay the billed amounts, that the employee's liability for the disputed amounts was extinguished, and that the reason the employee's liability was extinguished does not otherwise fall within the provisions of section 287.270. Farmer-Cummings, 110 S.W.3d at 823. Thus, in recognizing the employer's burden in establishing the defense, the Missouri Supreme Court made clear that, if the reason for the reduction of the employee's liability was due to a source falling within the provisions of section 287.270, then the defense was not established. Farmer-Cummings, 110 S.W.3d at 823.⁵

Missouri courts have applied Farmer-Cummings to claims for past medical expenses under section 287.140.1 in the years since Farmer-Cummings. See Cook v. Mo. Hwy & Transp. Comm'n, 500 S.W.3d 917, 931 (Mo. App. S.D. 2016); see also Maness v. City of De Soto, 421 S.W.3d 532, 545-46 (Mo. App. E.D. 2014); Proffer v. Fed. Mogul Corp., 341 S.W.3d 184, 189-90 (Mo. App. S.D. 2011). The General Assembly has not amended section 287.270.

In this matter, the City provided some treatment to Chick initially, but then refused to provide further treatment. Chick obtained treatment on his own including treatment with Dr. Mackinnon. Chick presented extensive medical records regarding the expenses incurred and evidence that his treatment with Dr. Mackinnon was treatment related to the brachial plexus injury, which was found to have been proximately caused by the February 2014 work injury. Chick also presented evidence of his medical bills indicating that the majority of the charges related to Dr. Mackinnon's treatment had been paid by Chick and his private insurer. Medical records related to the treatment by Dr. Mackinnon indicated that certain amounts charged were for copays and deductibles.

The ALJ found that Chick had failed to meet his burden of establishing he had incurred expenses related to his brachial plexus injury.

In his application for review with the Commission, Chick argued that the ALJ erred in finding that he did not meet his burden regarding whether his employer is responsible for reimbursement of his past medical expenses related to his work injury. Chick argued that he provided notice of his need for treatment and that his employer refused to provide treatment resulting in Chick paying directly, or being responsible for payment of the medical expenses. Chick argued that he presented uncontradicted evidence that he either payed directly or submitted to his private insurer these medical bills.

Although the City made arguments before the Commission that the ALJ had not erred in finding that Chick had failed to carry his burden of establishing he had incurred medical expenses related to a compensable work injury, the City did not attempt to argue that Chick's liability for the medical expenses related to Dr. Mackinnon's treatment had been extinguished.

During oral argument before the Commission, there was discussion regarding past medical expenses, as Chick sought to establish that the ALJ had failed to accurately recite or apply the burden shifting standard set forth in Farmer-Cummings. The Commission did not ask Chick about how past medical should be awarded.

During the City's oral argument time, the Commission asked the City about whether Chick had met his burden of establishing his medical liability for treatment related to his workplace injury. The City argued that it read Farmer-Cummings for the proposition that the employee had the burden of establishing continuing liability and that Chick had failed to meet that burden. The Commission then asked the City whether the Commission could find an employer liable for satisfying medical bills and direct the employer to pay medical providers directly rather than directing the payment to the employee. The City responded that it was not aware of any precedent that allows for what the Commission proposed “because of the collateral source issue with having to pay the employee bills that were paid by another source, um, as, you know, like health insurers.” The City then indicated that it believed that what the Commission had proposed sounded like a fair proposal, but then further expressed confusion about how a health care provider could accept payments for amounts that were no longer owed.

Thus, the record indicates that the City did not attempt to establish that Chick's medical liability had been extinguished or raise such an affirmative defense. Further, the City indicated that it believed the Commission's proposal would cause an issue with the collateral source rule of section 287.270.

In its decision, the Commission found that Chick had carried his burden of proving that the City was liable for his incurred charges of $32,526.48 for treatment with Dr. Mackinnon related to his February 2014 work injury. The Commission then cited to Farmer-Cummings for the proposition that awarding an employee compensation for medical expenses for which the employee has no liability would result in a windfall rather than compensation. See Farmer-Cummings, 110 S.W.3d at 821. The Commission then noted that Chick's private health insurance had paid most of the charges for the reimbursable medical treatment. The Commission then indicated that, because Chick's private insurance had paid for most of the charges, the Commission would not require the City to pay the medical expenses to Chick and Chick's attorney. Rather, the Commission ordered the City and its insurer “responsible for resolving charges related to Dr. MacKinnon's [sic] care of $32,526.48 directly with Washington University and Barnes-Jewish Hospital, and to hold the employee harmless in any collection attempts.”⁶

It is not altogether clear why the Commission directed medical expenses paid in the manner that it did or the legal authority it believed it had for doing so. It is clear that the Commission considered (and awarded the City a credit for) payments made toward Chick's medical bills by Chick and his private insurer. However, section 287.270 forbid the Commission from considering and granting the City a credit against its liability for payments made by Chick and his private insurance. See § 287.270 (“No ․ insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer's insurer for liability under this chapter, shall be considered in determining the compensation due hereunder[.]”); see also Farmer-Cummings, 110 S.W.3d at 821-23; Maness, 421 S.W.3d at 545. By doing precisely what the General Assembly forbade it from doing, the Commission acted in excess of the powers granted to it by the General Assembly.

Moreover, as a practical matter, the Commission's approach makes little sense as a means to reimburse someone for charges incurred that should not have been incurred but for an employer's failure to comply with the law. By directing the City to pay medical providers directly for charges which (for the most part) had already been paid, the Commission lost sight of the fact that, as a practical matter, a person is not reimbursed for a bill that the person has mostly paid by directing only that the remainder of the bill be paid. Relatedly, private insurance is typically obtained through efforts of an individual such as the payment of premiums, and receiving the benefits of insurance typically involves the payment by the individual of deductibles and co-pays. Aside from the General Assembly expressly forbidding consideration of the employee's private insurance from workers’ compensation awards, see § 287.270, the notion that application of an individual's own insurance does not cost the individual anything is typically contrary to the practical reality of private medical insurance.

That said, we do recognize that the third sentence of section 287.140.1 indicates that, where the medical treatment is “furnished by a public hospital or other institution, payment therefor shall be made to the proper authorities.” This language has been interpreted as intending to make sure that workers’ compensation patients would be freely admitted to hospitals, and to make sure that such hospitals would be paid for such services. Gill v. Massman Constr. Co., 458 S.W.2d 878, 882 (Mo. Ct. App. 1970), superseded in part on other grounds by statute as recognized in Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 855 (Mo. banc 1999), which was expressly abrogated by SB 1 & 130, 2005 Mo. Laws 910, as codified at section 287.020.10, RSMo. Gill addressed a situation in which the Commission awarded past medical expenses to a claimant, and the employer argued on appeal that it should have been directed to pay the St. Luke's Hospital bill, which was unpaid, directly to St. Luke's Hospital. Gill, 458 S.W.2d at 881. The appellate court agreed, interpreting section 287.140.1 to allow payment of unpaid hospital bills for which an employer is liable directly to public hospitals. Gill, 458 S.W.2d at 882. However, one of the material facts in Gill was that the hospital bill for which the employer was liable was unpaid. Id. Thus, there is some support in the case law for an approach in which the Commission directs unpaid medical bills for which the employer is liable directly to the medical provider.⁷

In general, there is a significant distinction between charges for treatment that the employer properly authorizes under section 287.140.1 and charges for treatment that the employer improperly refuses to authorize under section 287.140.1. It is clear that the third sentence of section 287.140.1 assumes that the medical treatment for which direct payment is to be made to the medical provider is treatment which the employer is authorizing and for which the employer is paying. Under such circumstances, the payment is to be made directly to the medical provider, as there is no reason to compensate the employee for services the employee receives without charge to the employee. This is clear from the language of section 287.140.1, which provides that the compensation the employee is to receive is the medical treatment. See § 287.140.1 (“In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical ․ treatment ․ as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.”). If the employer complies with this responsibility and provides such treatment, then the employee has been compensated as required by the first sentence of section 287.140.1.

However, when the employer fails to comply with the requirements imposed upon the employer by section 287.140.1, and improperly refuses to furnish the treatment, such that the employee incurs charges which are then paid in part or in full by the employee and the employee's private insurance, then the employer's liability (for the treatment the employer wrongfully refused to provide) simply cannot be satisfied by directing payment to the medical provider who has already received payment for part or all of the medical services. In other words, as an obvious practical reality, when the injured employee has paid for all or part of the treatment that section 287.140.1 requires the employer to provide, the employee has not received the compensation section 287.140.1 demands that the employer provide and the employee receive. Under such circumstances, requiring the employer to pay the employee for expenses incurred (due to the employer's failure to provide treatment as required by section 287.140.1) gives effect to the clear intent of section 287.140.1. See Erwin, 710 S.W.3d at 554-55; Lyman, 407 S.W.3d at 134 (quoting Poole, 328 S.W.3d at 291); Abt, 420 S.W.3d at 704; Pruett, 365 S.W.3d at 307. In such circumstances, the employer is required to pay the employee for expenses incurred by the employee that were incurred only as a result of the employer's failure to provide what the law required the employer to provide in the first place. See § 287.140.1; see also Erwin, 710 S.W.3d at 554-55; Lyman, 407 S.W.3d at 134 (quoting Poole, 328 S.W.3d at 291); Abt, 420 S.W.3d at 704; Pruett, 365 S.W.3d at 307; Helmig, 688 S.W.3d at 324 (“The law is clear that when an employer fails to provide medical treatment, the employee may pick his or her own provider and assess the costs against the employer.”).

In this matter, the Commission erred by directing the City to satisfy its liability for past medical in the amount of $32,526.48 to Chick's medical providers rather than to Chick.

Attorney's Fees/Due Process

Chick makes further arguments that he was deprived of due process by the Commission addressing and considering attorney's fees without giving him notice and an opportunity to be heard.⁸ Chick relies on Helmig for the proposition that, where the Commission modifies an ALJ award on issues on which no party has appealed, the Commission must provide notice and an opportunity to be heard prior to the Commission modifying the ALJ's prior award. See Helmig, 688 S.W.3d at 325-26. Chick argues that his case is like Helmig and thus he was deprived of due process as was found in Helmig.

In Helmig, an ALJ had found that an employer was liable for past medical expenses, and ordered the award of past medical to be paid to the claimant. Id. at 319-20. The ALJ further granted a 25% attorney's fee lien on the monetary award. Id. at 320. The employer did not appeal the method of payment of medical expenses and did not appeal the issue of attorney's fees. Id. at 325. The Commission nevertheless modified the ALJ's award on these issues by directing the past medical expenses be paid either to the medical providers directly or to the claimant, and by excluding past medical expenses from the attorney's fee lien. Id. at 320-21.

On appeal from the Commission's award, the appellate court held that the Commission exceeded its powers and denied due process by modifying an award on matters not appealed to the Commission without providing notice and an opportunity to be heard. Id. at 325-26.

However, in this matter, unlike in Helmig, the ALJ had denied past medical altogether. Thus, the issues of whether past medical expenses should be awarded and, consequently, the attorney's fees that may be awarded for past medical expenses (in the event that past medical was found compensable), were issues that were effectively before the Commission. Thus, the due process issue in Helmig is not present in this matter.

Nevertheless, as discussed above, the Commission acted in excess of its powers in this case in its manner of directing payment of past medical expenses – by granting the City a credit for payments made by Chick and Chick's private insurance in contravention of section 287.270, and by concocting a method of payment, the practical consequence of which was that Chick was not provided with the compensation section 287.140.1 required his employer to provide to him.

Regarding the Commission's exclusion of attorney's fees from the award of past medical, the Commission appeared to exclude such fees from the award on the basis that, because the Commission was not reimbursing Chick for such fees, they could be excluded from the attorney's fee lien. To be clear, the General Assembly does task the Commission with assessing attorney's fees. See § 287.260.1. However, because the Commission's decision to exclude past medical from the attorney's lien appears to have been intertwined with its misunderstanding of the law regarding reimbursement for past medical expenses and credits to which an employer may be entitled under section 287.270, we remand the issue of attorney's fees on the past medical award to the Commission to determine an appropriate amount of attorney's fees pursuant to the appropriate considerations set forth in section 287.260.1 and 8 CSR 50-2.010(15).

A lien for reasonable attorney's fees is an express exception to the protections on compensation payable under Chapter 287, where such fees are found to be necessary. § 287.260.1. Section 287.260.1 further provides: “All attorney's fees for services in connection with this chapter shall be subject to regulation by the division or the commission and shall be limited to such charges as are fair and reasonable and the division or the commission shall have jurisdiction to hear and determine all disputes concerning the same.”

8 CSR 50-2.010(15) provides:

If the services of an attorney are found to be necessary in proceedings for compensation, the administrative law judge shall set a reasonable fee considering relevant factors which may include, but are not limited to, the nature, character and amount of services rendered, the amount in dispute, and the complexity of the case and may allow a lien on the compensation due to the claimant.

Missouri courts have recognized that these provisions authorize the Commission to “hear all disputes regarding attorney's fees and set a reasonable fee or lien after considering all relevant factors.” Sterling v. Mid America Car, Inc., 456 S.W.3d 473, 476 (Mo. App. W.D. 2014). Missouri courts have also recognized:

The general practice in Missouri is to set a fee not to exceed 25% of the award. Such fees can be based upon the whole award, including medical and nursing expenses. In most instances there is no fee charged or taken for medical and hospital bills unless litigation is necessary for payment, in which case there is a 25% charge. Thus, while attorney's fees can be based upon the entire award, including medical bills and expenses, such fees normally are not awarded unless litigation is necessary for securing payment.

Sterling, 456 S.W.3d at 476-77 (internal citations, quotations, and ellipses omitted). Missouri courts have further recognized that denying reasonable attorney's fees can have a chilling effect on the ability of an injured party to obtain competent representation. See id. at 477 (citing Page v. Green, 758 S.W.2d 173, 176 (Mo. App. S.D. 1988)).

In this matter, after reversing the ALJ's denial of past medical, the Commission stated: “This award, exclusive of past medical expenses, is subject to a lien in favor of Allen, Nelson & Wilson in the amount of 25% for necessary legal services rendered.” Thus, the Commission found that Chick's attorneys had provided necessary legal services in securing the award. However, the Commission excluded attorney's fees related to past medical expenses for reasons not entirely clear from the award. It is not clear whether the Commission believed that an award of past medical expenses was not a part of the award. It is also unclear to this court whether the Commission believed (or how the Commission could believe) that Chick's attorneys’ services were unnecessary to securing that portion of the award. Such a conclusion would be puzzling, as the ALJ had denied past medical expenses altogether prior to Chick's attorneys’ efforts in appealing that decision to the Commission.

To be clear, the Commission is not required to award attorney's fees when such are not found to be necessary. § 287.260.1. And, the Commission is free to limit any attorney's fee lien to “such charges as are fair and reasonable[.]” See § 287.260.1. However, in this matter, the Commission appears to have simply determined that its award of past medical expenses (by direct payment to the providers) could not (regardless of reasonableness or necessity) be subject to an attorney's fee lien. Thus, it appears that the Commission failed to address the appropriate considerations as set by the General Assembly and the Commission's own regulations. Because the Commission's decision in this case appears to have been based on arbitrary considerations, which were intertwined with its actions in excess of its powers regarding the award of past medical expenses, rather than based on the appropriate legal considerations, we remand the issue of attorney's fees related to the award of past medical expenses to the Commission.

Permanent Total Disability

In his fourth point, Chick argues that the Commission erred in finding that Chick is not permanently and totally disabled. He argues that this finding is not supported by competent and substantial evidence upon the whole record and seeks to establish that his is “the rare case when the award is contrary to the overwhelming weight of the evidence.” See Hampton, 121 S.W.3d at 223. Specifically, he argues that the evidence in the record did not support a finding that he is able to compete for work in the open labor market such that an employer would reasonably be expected to hire him in his condition.

Section 287.020.6 provides that “total disability” “shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.” “The test for permanent total disability is the worker's ability to compete in the open labor market because it measures the worker's potential for returning to employment.” Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. banc 2015) (citation omitted). “The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present condition.” Id. at 665 (citation omitted). Employability has been recognized by Missouri courts to be a matter within the Commission's expertise. Id. (citation omitted). A claimant has the burden of proving that the claimant is entitled to benefits. Id.; § 287.808.

The ALJ found that Chick had failed to meet his burden of proving he is permanently totally disabled. In its initial award, the ALJ made specific findings regarding Chick's work and medical history, as well as findings regarding the testimony and opinions of experts offered on behalf of Chick and the City. The ALJ noted that Chick continued to work full duty following the accident until placed on light duty in June of 2014, after which he continued to work full time on light duty reading meters, driving, and doing some paperwork. The ALJ found that Chick did not seek employment or pursue vocational rehabilitation following the termination of his employment with the City in April of 2016. The ALJ noted that Chick was able to perform tasks such as mowing around his house, and that the surveillance evidence showed Chick performing tasks with his right arm. The ALJ recognized that four experts had opined that Chick was permanently totally disabled, but found that these experts were not persuasive. The ALJ noted that two experts opined that Chick had not suffered such permanent disability. The ALJ recognized that a vocational expert had opined that Chick would be a good candidate for vocational rehabilitation and indicated that Chick could compete for positions as a light delivery driver or a cashier. The ALJ found this vocational expert to be persuasive and noted that this opinion was supported by Chick's work history for two years after the February 2014 work accident, the activities Chick testified he could perform, and the activities Chick performed in the video surveillance.

In the Commission's award (on review of the ALJ's award), the Commission largely adopted the findings of the ALJ. The Commission indicated that it would not disturb the ALJ's finding that Chick was not permanently totally disabled, while acknowledging that the evidence might have also been sufficient to support a contrary finding. The Commission further indicated that the ALJ's finding regarding permanent total disability was supported by the opinion of a vocational expert, who noted that, with Chick's relatively young age at the time of the injury (forty-seven years), his training and experience, and his commercial driver's license, Chick was a reasonable candidate for light occupations even with his physical restriction.

In attempting to establish that the award is against the overwhelming weight of the evidence, Chick relies on the test utilized in Riley v. City of Liberty, 404 S.W.3d 434, 441 (Mo. App. W.D. 2013) (citing Jordan v. USF Holland, 383 S.W.3d 93, 95 (Mo. App. S.D. 2012)). Under this test, a challenger must identify a factual proposition necessary to sustain the award; identify evidence favorable to the proposition; identify evidence contrary to the proposition, while recognizing the factfinder's role in making credibility determinations; and establish that, based on the whole record, the evidence was so lacking that the Commission could not make the challenged finding of fact. Id.

Chick's briefing purports to complete each of these necessary steps. However, Chick fails to make much of an attempt to identify or grapple with the evidence in the record favorable to the Commission's finding. Although we recognize that appellants will naturally be hesitant in identifying evidence that works against their argument on appeal, appellants have the burden of establishing error on appeal. See Hadley v. Beco Concrete Prods., Inc., 505 S.W.3d 355, 359 (Mo. App. S.D. 2016). In attempting to show that a case is the “rare case” in which the award is contrary to the overwhelming weight of the evidence, see Hampton, 121 S.W.3d at 223, an appellant cannot neglect the evidence favorable to the Commission's decision or attempt to minimize it by failing to provide a thorough and accurate depiction of the evidence supporting the Commission's award from which to compare the evidence contrary to the Commission's award. The portion of Chick's briefing which purports to be all of the evidence in the record supporting the Commission's PTD finding consists of five short paragraphs and fails even to set forth all of the evidence specifically referenced in the ALJ's findings.

Chick makes further arguments regarding the Commission's findings of credibility or persuasiveness of particular experts on certain issues. Chick argues that certain findings of the Commission on particular issues related to one expert necessarily produce specific conclusions regarding what the Commission found or could have found on other issues. However, Chick fails to recognize that, as the finder of fact, the Commission may believe all, part, or none of a witness's testimony. March, 649 S.W.3d at 301. Similarly, the Commission may be persuaded by a particular expert on a particular issue while finding the expert's opinion on a different issue to be unpersuasive.

Although there may have been evidence to support a contrary finding regarding PTD, it is the Commission rather than this Court that is tasked with the role of finder of fact, such that this Court does not substitute its judgment for that of the Commission, but instead owes deference to the Commission's findings. See Hornbeck, 370 S.W.3d at 629. When it comes to employability, Missouri courts recognize the Commission's expertise regarding the subject. See Greer, 475 S.W.3d at 665. Where the evidence is such that it might warrant either of two opposed findings, the appellate court is bound by the Commission's determination. See Hornbeck, 370 S.W.3d at 629. Such is the case here.

Point four is denied.

Spoliation

In his fifth point, Chick argues that the Commission erred in failing to grant an adverse inference against the City due to surveillance videos that were not provided to Chick. Chick argues that the City did not provide all of the videos in its possession and provided edited versions of the surveillance videos that it did provide. Chick argues that the City's conduct amounted to spoliation such that he was entitled to an adverse inference against the City.

“Spoliation is the intentional act of destruction or significant alteration of evidence.” Hill v. SSM Health Care St. Louis, 563 S.W.3d 757, 761 (Mo. App. E.D. 2018) (citing Pisoni v. Steak ‘N Shake Operations, Inc., 468 S.W.3d 922, 925 (Mo. App. E.D. 2015)). “The spoliator must destroy or alter the evidence under circumstances indicating fraud, deceit, or bad faith.” Id. “An inference of fraud and a desire to suppress the truth may be established if the alleged spoliator had a duty or should have recognized a duty to preserve the evidence.” Id. (citation omitted). “Under certain circumstances, the spoliator's failure to adequately explain the evidence's destruction may give rise to an adverse inference.” Id. “Not concerned with whether the opposing party suffers prejudice as a result of the destroyed evidence, the doctrine works only to punish the spoliator.” Id. (quoting Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 526 (Mo. App. E.D. 1998)). “Specifically, the spoliation doctrine and the resulting adverse inference punishes the spoliators by holding them to admit that the destroyed evidence would have been unfavorable to their position.” Id. “The adverse inference, however, does not prove the opposing party's case.” Id. When spoliation is found, Missouri courts have indicated that the remedy provided should be tailored to the problem presented. Id. (citation omitted). The party seeking to benefit from the doctrine has the burden of establishing that spoliation occurred. Tribus, LLC v. Greater Metro, Inc., 589 S.W.3d 679, 693 (Mo. App. E.D. 2019) (citation omitted).

The City hired a private investigation company to conduct surveillance of Chick, and a number of videos were admitted into evidence at the hearing before the ALJ. Chick did not object to the videos admitted but argued that the City had failed to provide unedited video footage such that Chick was entitled to an adverse inference that the missing footage would be unfavorable to the City. Chick argued that the investigation company indicated in a deposition taken of its agent that it had provided the City with raw unedited videos. Chick argued that the video provided had 34 edits or interruptions of videos with 1,065 minutes of video missing. Chick argued that there was deposition testimony that there were 40 files, but that only 18 files had been provided to Chick.

The City argued that it had produced everything that the investigative company provided it and that it was offering into evidence what had been provided to it.

During the prior deposition of the agent of the investigative company, which was conducted by videoconference, Chick's counsel inquired whether the investigative company had a copy of its case file regarding the surveillance conducted. The agent indicated that the file was in the company's system and that it was pulled up in front of him. Chick's counsel then inquired of the City whether the file was going to be turned over to Chick as previously indicated. The City then indicated that the agent had previously advised him that the information could be shared by videoconference technology during the deposition. The agent then indicated that he could not do so, but could email copies. Chick's counsel indicated that would be fine. The agent then indicated that the process would take “probably an hour” to transfer “all the videos and everything.” The agent then indicated that he had previously provided the materials to the City and inquired whether the City had shared the materials. Chick's counsel indicated the materials had not been shared. Counsel for the City then indicated that he had provided the videos and reports as had been required by a prior subpoena. Counsel for Chick then asked if counsel for the City could forward a copy of the entire file. Counsel for the City then indicated that he could get that from the agent and forward it to Chick. Counsel for the City then indicated that he had understood that the agent would be providing that material during the deposition.

At that point, co-counsel for Chick stated:

Listen, I guess – I mean, we're not really interested in – we already have all the reports and the surveillance videos․ But what we're interested in is, like, the hard file, like the documents, like any of the – anything else that's ancillary to the surveillance and the reports.

Counsel for the City then indicated that he would try to provide that material and asked the agent how to access that material. The agent then indicated that he forwarded the City everything that it had and that it would take some time to download all of the videos and reports and email them to everyone. Counsel for the City then inquired what else would be in the hard file aside from the videos and reports. The agent indicated that there was nothing besides videos and reports. Counsel for the City then indicated to Chick's counsel that the agent's answers were the answers to Chick's counsel's question. Counsel for Chick responded, “Okay.”

Later in the deposition, Chick's counsel inquired about the materials that the agent had provided to the City. The investigative company's agent testified that the company had provided the City with the raw footage as well as activity footage comprised of highlights and had sent everything to the City. The deposition ended shortly after this information was conveyed. The record does not indicate that Chick made any attempt to have the City and the agent coordinate to provide the file as had been offered earlier during the deposition.

The ALJ's decision acknowledged Chick's request (at the hearing) for an adverse inference due to the video that had not been produced. The ALJ indicated that Chick's request would “go to the weight of the evidence.” The ALJ's decision indicated that the surveillance footage showed that Chick had an ability to lift some items, open doors with his right arm, carry things with his right arm, move his right arm freely at his side, put his right hand in his pocket to retrieve his wallet, take things out of his wallet, and drive.

Chick timely filed an application for review with the Commission. In the application for review, Chick argued that the ALJ committed error in considering the video surveillance without granting an adverse inference against the City regarding the edited video footage.

The Commission found that Chick failed to establish that the City destroyed, altered, concealed, or suppressed video evidence under circumstances manifesting fraud, deceit, or bad faith. In so finding, the Commission cited the portion of the deposition where Chick's counsel indicated that they already had all the videos. The Commission further found that the ALJ's conclusion that Chick was not permanently totally disabled did not depend on the surveillance evidence.

On the record before us, we conclude that the Commission could reasonably find that Chick failed to establish that the City destroyed, altered, concealed, or suppressed video evidence under circumstances manifesting fraud, deceit, or bad faith. Chick fails to acknowledge that the City indicated at the deposition that it had provided everything that it was required to provide and then offered to coordinate to provide anything else in the agent's possession at the deposition, but that Chick had then indicated a lack of interest. Chick argues on appeal that the extent of the video files in the agent's possession had not yet been discovered as indicated by the agent's subsequent testimony. Yet, the fact remains that the City offered to coordinate the supplying of all materials in the agent's possession at the same deposition during which the information was discovered. Based on this record, the Commission could find that the City had not acted in bad faith so as to demand an adverse inference.

Point five is denied.

Conclusion

The Commission's award is affirmed in part and reversed in part. On remand, the Commission is instructed to address attorney's fees on the award of past medical in accordance with the principles set forth in section 287.260.1 and 8 CSR 50-2.010(15). On remand, the Commission is further instructed to direct payment of the reimbursement of the past medical expenses in the amount of $32,526.48 to Chick, with the award potentially subject to an attorney's fee lien depending on the Commission's resolution of the attorney's fee issue. The Commission's award is otherwise affirmed.

FOOTNOTES

1.   Statutory references are to RSMo 2000, as supplemented. Generally, the statutes in effect at the time of injury are the applicable version of statutes in workers’ compensation cases. See LME, Inc. v. Powell, 661 S.W.3d 370, 373 n.1 (Mo. App. W.D. 2023) (citing Kayden v. Ford Motor Co., 532 S.W.3d 227, 229 n.1 (Mo. App. W.D. 2017)).

2.   Over the years, numerous amendments were filed.

3.   Although not raised as an issue in this appeal, the Commission also modified the ALJ's decision to award 10% PPD of the body as a whole due to psychiatric disability related to the February 2014 work injury.

4.   In interpreting section 287.270, the Missouri Supreme Court also held that write-offs and fee adjustments did not constitute a “savings” within the meaning of section 287.270 as write-offs and fee adjustments were not benefits but the result of a medical provider deciding to balance its books or deciding not to pursue outstanding amounts. Farmer-Cummings, 110 S.W.3d at 822.

5.   Following Farmer-Cummings, the General Assembly enacted section 287.808 regarding the respective burdens of parties under the Workers’ Compensation Law. Section 287.808 provides:The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

6.   The Commission further noted that Chick's attorney voiced no objection to this approach to resolving Chick's claim for past medical expenses and that Chick's attorney stated that he did not intend to make money on medical awards, but wanted to ensure that bills related to Chick's compensable injury were paid. However, the notion that Chick endorsed the approach later taken by the Commission in its decision has little support in the record of oral argument.Regarding Chick's lack of objection to the Commission's approach, the Commission never asked Chick about the approach. Further, when the Commission asked the City about the approach, the City indicated that it did not believe that the law that would allow it. Under these circumstances, there was little reason for Chick to object in his brief rebuttal time to a hypothetical proposal that the City had indicated had no basis in law.During Chick's two minutes of rebuttal time, Chick's attorney apologized for speaking in a hurry, then argued that the City would be the only party receiving a windfall if Chick was not reimbursed for the medical expenses. Chick's attorney did indicate that he did not “intend to make money on medical,” and that, if there was a way to ensure that providers got paid, that would be fine. But, Chick made very clear his position that unfairness would result if Chick was not reimbursed for the medical expenses and that the City would be the party to receive a windfall if Chick was not awarded past medical expenses.

7.   In this matter, the ALJ's decision noted that Washington University Physicians had previously filed an application for direct payment with the Commission. However, no appearance was made on behalf of Washington University Physicians at the hearing, thus, the ALJ dismissed the application for direct payment with prejudice. The Commission recognized this dismissal in its final award. Thus, in this matter, the Commission was not faced with the circumstance in which a medical provider was seeking direct payment for unpaid medical expenses in the proceedings before the Commission.

8.   Chick made his due process argument with regard to the Commission's manner of paying past medical expenses as well. As previously indicated, the Commission acted in excess of its powers in its manner of directing payment of past medical expenses to Chick's medical providers rather than to Chick. As we found error irrespective of Chick's due process arguments, we do not further address whether the Commission's manner of directing payment of past medical expenses deprived Chick of due process.

Thomas N. Chapman, Judge

All concur.