WORKERS’ COMPENSATION CASE LAW UPDATE

JANUARY 2012-MARCH 2012

 

Automobile Accident on Way to Hunt Before Business Meeting Not Compensable

 

Wilson v. Wilson, No. WD73742 (Mo. App. W.D. 2011)

 

FACTS:  The claimant was the owner and employee of a company which moved mobile homes.  On December 13, 2008, the claimant was injured in an accident while he was on his way to a business associate's property to hunt for deer. Thereafter, he was going to meet someone else for business.  The Commission found that because the claimant was on his way to go hunting, there was no dual purpose or mutual benefit to his employer to make the accident compensable because the claimant had deviated from his route to and was traveling to property where he planned to hunt. The Commission further found that if the claimant canceled his personal hunting trip, he would have not been where the accident occurred.

 

HOLDING:  The Court found that the Commission was justified in concluding that the claimant's multi-hour personal mission, which involved multiple features which exposed him to risk of injury, did not represent merely a slight deviation from his employer's purpose but a sufficiently substantial deviation that defeated his reliance on the mutual benefit doctrine. Therefore, the claimant did not meet his burden of establishing that his injury arose out of and in the course of his employment.

 

At Hearing SIF Not Bound By Settlement Made by Claimant and Employer

 

Dennis Seifner v. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, No. WD74192 (Mo. App. W.D. 2012)

 

FACTS: The claimant filed an occupational disease claim for injury to his thoracic spine in 2003, which he settled with the employer for 10% PPD. The claimant also alleged pre-existing disabilties. The claimant went to a hearing against the Fund, and the ALJ found that the claimant's doctor, Dr. Stuckmeyer, was significantly impeached on cross-examination during his deposition, and therefore, found that the doctor's opinion was not credible. Therefore, due to the lack of credible medical evidence on the issue of causation, the ALJ found there was no compensable occupational disease and also denied the claimant's claim against the Fund. The Commission affirmed and adopted the decision of the ALJ.  The claimant appealed arguing that the Fund could not relitigate the percentage of PPD which was agreed on in the settlement between himself and the employer.

 

HOLDING: The Court of Appeals found that basically the claimant was arguing that the Fund was bound by the terms of the settlement between himself and the employer. The Court looked to Totten v. Treasurer of the State, wherein the Court found that the claimant failed to prove a work accident occurred and denied his claim against the Fund after the claimant and employer settled their claim for 12.5% of the body. In Totten, the Court noted that no attorney on behalf of the Fund signed the settlement, and the claimant did not assert that the Fund was otherwise a party to the settlement. Therefore, the Court found that the Fund was not bound by the terms of the settlement agreement entered into by the claimant and his employer. Applying the rationale of Totten, the Court of Appeals noted that the facts were the same in this case, and therefore, the Fund was not bound by the terms of the settlement between the claimant and the employer.

 

The claimant also argued that the Fund was required to introduce medical evidence to challenge the credibility of Dr. Stuckmeyer, and the Commission was not entitled to ignore the doctor's uncontradicted opinion and substitute its own opinion with regard to causation. The Court of Appeals noted that the claimant has the burden of proving all essential elements of this claim, therefore, the Fund does not have to establish by medical evidence or otherwise that the injury was caused by something other than the claimant's job. The Court of Appeals further found that the Commission did not err in finding the doctor's testimony not credible, due to the fact that it identified several reasons as to why it was discrediting the doctor's opinion. Therefore, the Court of Appeals affirmed the Commission's Decision denying the claimant's claim against the Fund.

 

Employer's Motion Denied Because no Evidence of Physical Change in Condition

 

Patrick Pavia v. Smitty's Supermarket, No. SD31275 (Mo. App. S.D. 2012)

 

FACTS: On February 26, 1996 the claimant sustained a closed head injury and cervical spine fracture. The ALJ found the claimant sustained 20% PPD referable to the cervical fracture and 50% PPD referable to the traumatic brain injury. In November 2002, the Commission found that the claimant was permanently and totally disabled as a result of his work injury.

 

A year after the work injury, the claimant obtained a job, attended school, and continued to work thereafter. He first worked at an automobile dealership for two years then went to school and returned to the dealership for another three years.  He was also employed as a bell boy at the Holiday Inn during this time. The claimant then worked at his family's golf center until 2005 or 2006.  He then was a cabinet builder and installer but had trouble remembering the measurements and was let go due to economic downturn. After a few months of unemployment, in December 2008 the claimant was hired as a manager trainee at Enterprise Leasing. In September 2010 the claimant was still in the training position even though the training period was only six months.  He also had received two warnings of possible termination if his performance did not improve.  On April 9, 2010, the employer filed a Motion for Determination of Change in Condition, and a hearing was held in front of an ALJ on September 20, 2010, at which time the claimant was still employed. Dr. Stillings, the employer's expert, opined that the apparent improvement in the claimant's diagnoses and cognitive function evidenced a physical change in the condition of his brain.  Dr. Cohen, the claimant's expert, spoke with the claimant, the claimant's wife and his mother, who all reported no change in the claimant's condition. His wife noted that she ran the house and had to leave post-its around the house for him to be able to remember. The claimant's wife and mother noted no improvement in the claimant's condition over the years. Dr. Cohen was of the opinion that there had not been a significant change in the claimant's condition. He further believed the claimant was not employable on the open labor market.

 

The Commission dismissed the employer's Motion on March 22, 2011, finding that although the employer presented evidence that the claimant had undergone numerous life changes since the original Award in 2002, it did not present any new MRI scans of the brain or any other concrete evidence showing an actual "physical change in condition". Please note that prior to the 2005 Amendments, the Court in Bunker v. Rural Elec. Coop. required the employer to demonstrate a change in the claimant's physical condition before the Commission could institute a change in the claimant's award. Here, the employer argued that the 2005 Amendments applied which require strict construction in interpreting the Statute, which does not contain the word "physical", but only states "change in condition". Therefore, the employer argued that the word"physical" cannot be grafted into the wording of that section.

 

HOLDING: The Court of Appeals found that the 2005 amendments do not apply because the date of the injury governs the claim under the law, which in this case is a 1996 injury. The Court of Appeals noted that there is nothing in the 2005 amendments noting the legislature intended for these amendments to apply retroactively to injuries occurring before that effective date. Therefore, Bunker still applied which requires the employer to demonstrate a physical change in condition. The Court of Appeals noted that the Commission determined that Dr. Stillings was not credible and that Dr. Cohen, the claimant, his wife and his mother were credible, and therefore, the employer failed to prove a change in the physical condition of the claimant. The Court affirmed the Commission's dismissal of the employer's Motion for Determination of Change in Condition. (This is an old law case.)

 

Claimant Must Specifically State Why ALJ Erred

 

Dickens v. Hannah's Enterprises d/b/a Hannah's General Store, No. SD31237 (Mo. App. S.D. 2012)

 

FACTS: The Commission dismissed the claimant's Application for Review because it failed to specifically state the reason why the claimant believed that the findings and conclusions of the ALJ were not supported.

 

HOLDING:  The Court of Appeals noted that an Application for Review of any final Award, Order or Decision of the ALJ shall state specifically the reason the applicant believes the findings and conclusions of the ALJ are not properly supported.  It is not sufficient to merely to state that the decision of the ALJ is not supported by competent and substantial evidence. The Court found that in this case, the Commission made no findings, therefore, there was no Decision for the Court's review.  The only decision the Court is authorized to review is the Order to dismiss the Application and, determine if the Commission acted in excess of its powers.  The Court noted the claimant did not raise these  grounds in her appeal and, therefore, she abandoned it. Therefore, the dismissal was affirmed.

 

Claimant Found to be Employee Not Owner/Operator and Missouri Had Jurisdiction

 

Rader v. Werner Enterprises, No. ED95905 (Mo. App. E.D. 2012)

 

FACTS: The claimant, a truck driver and resident of Texas, was injured on May 29, 2003 in Missouri while unloading a truck.  In February 2003 the claimant purchased a truck through a subsidiary of the employer and the employer changed the claimant's job classification to owner-operator. The claimant also signed a contract waiving workers' compensation jurisdiction in any state besides Nebraska (where the employer is headquartered).  The ALJ and Commission found that Missouri had jurisdiction and the employer appealed.

 

HOLDING: The Court of Appeals found that Missouri had jurisdiction over the claim because the claimant was injured in Missouri and the choice of law language in the agreement applied to an independent contractor relationship and not an employer/employee relationship. The Court found the claimant was an employee. The Court further found that  the Commission did not err in finding that the driver was an employee because it was unclear if the claimant "owned" the truck because it was unclear if the claimant had title to the truck, the claimant could not convey the truck, and his right to use was conditioned upon continued employment, which was significant to show that he did not own it. Therefore, the claimant was not an owner/operator but was an employee.  (This is an old law case.)

 

Third Party Who Provided Unauthorized Treatment Cannot Intervene in Workers' Compensation Matter

 

United States Department of Veterans Affairs v. Karla O. Boresi, Chief Administrative Law Judge, No. ED97042 (Mo. App. E.D. 2012)

 

FACTS: The claimant had a pending workers' compensation claim before the Commission, alleging injuries sustained while working for the employer, United Home Craft. Without authorization from the employer, a medical facility of the US Department of Veterans Affairs, provided care to the claimant. The VA filed a Motion to Intervene in the WorkersCompensation case, and the ALJ denied the Motion. The VA filed a Petition requesting that the Circuit Court direct the ALJ to rescind the denial and allow the VA to intervene as a party in the case. The Circuit Court denied the Petition.

 

HOLDING: The Court of Appeals noted the employer has a statutory right to select the medical providers to provide treatment to an injured claimant. Also, the claimant has a right to select his own medical treatment, however, if care has not been authorized by the employer, the claimant bears the expense of treatment. The Court of Appeals noted that nowhere in the Statute is the ALJ permitted to allow private providers of such unauthorized medical care to intervene or participate in a workers' compensation case. The VA argued that the United States has a right to intervene to recover charges from a third party to the extent that the Veteran (claimant) would be entitled to receive payment from a third party. However, the Court of Appeals noted that since the claimant received unauthorized medical care at the VA's medical facility, under Missouri law he is not entitled to receive any payment from the employer or insurer. So, even if the VA was allowed to step in the claimant's shoes, the VA would still not be entitled to receive payment. Therefore, the Court of Appeals affirmed the Circuit Court's decision to not allow the VA to intervene in the Workers' Compensation matter.

 

Commission Trends

Old Law (Pre-August 28, 2005)

 

Employer Did Not Waive Right to Direct Treatment

 

In Stacy Dean v. Elder Customs Homes, Injury No. 02-120477, the claimant argued that the employer "waived" its right to direct treatment due to failing to provide prescription medications to her from April through September 2007.  The claimant therefore sought an Order from the Commission that would allow him to go to any doctor he chooses and pursue his own future treatment at employer's expense. The ALJ noted that the employer consistently asserted its right to control treatment throughout the claim, and therefore, did not waive the right to direct payment.  The Commission agreed with the ALJ and noted that an employer's waiver of the right to direct treatment of past medical does not mean that the claimant can obtain an Order from the Commission granting him the prospective privilege of selecting any doctor or treatment he chooses, with the employer liable to pay for such expenses.

 

Employer Had Notice Even Though Amended Claim Did Not State Alleged Injuries

 

In Norman L. Berra v. Berra Construction, LLC, Injury No. 98-179083, the employer argued that the claimant was not entitled to compensation since the claimant, in his third amended Claim, failed to state the specific body parts that were injured by the alleged occupational disease.  In the first and second amended Claims, the claimant alleged injuries to his wrist and elbows. The Judge noted that the defense is entitled to know what the claimant alleges to be his injury. However, administrative pleadings do not involve strict fact pleading in most cases. The ALJ opined that the employer had knowledge of the claimant's allegation that he sustained injuries to both of his upper extremities from his work based on the claimant's prior pleadings, to which the employer filed Answers, denying that allegation. In addition, the forensic medical evidence was in evidence without any objection. Therefore, based on the evidence, the defense had notice of the allegation and defended against that allegation and the employer waived any defense that the claim was legally insufficient. The Commission affirmed.

  

New Law

Housekeeper's Job Duties Caused Carpal and Cubital Tunnel Syndrome

 

In Ann Shinkle v. The Fountains of West County, Injury No. 08-101748, the ALJ found that the claimant's job duties as a housekeeper at an assisted living retirement facility led to her bilateral carpal and cubital tunnel syndrome. Her job duties included cleaning the kitchen floors, baseboards and appliances and the walls, windows and flooring in the residents' rooms.  She also was required to work on her hands and knees cleaning the floors in the bathrooms as well as vacuum, mop, dust, clean carpet stains, sweep decks and do laundry. The Commission affirmed the ALJ.

 

Job Duties as Bus Driver were Prevailing Factor Despite Congenital Condition

 

In Monica Chrismer v. First Student, Injury No. 09-100519, even though the claimant had a pre-existing os acromiale which is a congenital condition in the shoulder, the ALJ found that her repetitive job duties as a bus driver were the prevailing factor in causing her right shoulder condition. The ALJ noted that while the claimant might have been predisposed to developing problems in her shoulder due to her congenital condition, the ALJ did not believe that her shoulder condition would have arisen without the repetitive job duties, especially considering the 25 year span in which the claimant had no shoulder problems despite her congenital condition.  The Commission affirmed the ALJ's finding.

 

Walking Down Stairs Found to be In Course and Scope of Employment

 

In Jason Pope v. Gateway to the West Harley Davidson, Injury No. 10-019309, the claimant was asked by his supervisor to move motorcycles to the upper showroom. He was required to wear a helmet when moving motorcycles.  The claimant was on the way back to the service department to ask his supervisor if there was anything else he needed to do before clocking out when he fell down the stairs.  The ALJ found the hazard or risk of injury, descending stairs while carrying a helmet, was unrelated to the claimant's employment because his normal job duties did not involve climbing an excessive number of stairs or moving motorcycles, and he was not involved in a work activity when he fell because he had finished moving the motorcycles and planned to clock out. The Commission reversed the ALJ's decision and found that there was competent and substantial evidence showing that the risk to which the claimant was exposed, negotiating stairs while in the process of performing work activities, while wearing work boots and carrying necessary tools of his trade (helmet), created a clear connection or nexus between the hazard or risk of injury and the injury itself.

 

Threshold for SIF Liability

The Commission issued the same opinion in six different cases with respect to the threshold for SIF liability.  The threshold is that if a claimant has a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment and that pre-existing permanent partial disability equals a minimum of 12.5% PPD of the body as a whole (50 weeks), or 15% PPD of a major extremity, and the claimant sustains a compensable injury resulting in additional PPD in the amount of 12.5% of the body as a whole, or 15% PPD of a major extremity, and the combined disabilities are substantially greater than that which would have resulted from the last injury alone, the employer at the time of the last injury is liable only for the disability resulting from the last injury.

 

The Commission noted that under the plain language of the statute, once it is determined that the threshold is met, all disabilities that existed at the time of the work injury shall be considered in the calculation of the SIF's liability.  For example, in Thomas Richards v. Lagasse Suite, Inc. "Settled" and the Treasurer of Missouri as Custodian of Second Injury Fund, Injury no. 08-121450, the Court noted the claimant had multiple pre-existing permanent partial disabilities including 25% of the right knee, 35% of the left knee, 10% of the right wrist, 15% of the left shoulder and 12.5% of the body as a whole referable to diabetes.  Pursuant to the Statute, all of these meet the threshold for SIF liability except for the 10% of the wrist.  However, since the claimant met the threshold for at least one pre-existing injury he is entitled to compensation from the SIF.   The Commission opined that when calculating the SIF liability even though the 10% of the wrist, or 17.5 weeks alone does not meet the threshold, the claimant is entitled to compensation for all pre-existing injuries. Therefore, the 17.5 weeks is included in calculating the total weeks for which the SIF is liable.

 

Claimant Traveling to Different Locations for Employment Found Compensable

 

In Maria White v. Anderssen Mobile X-ray Service, Injury No. 10-022144, the claimant was a staff technologist and her job duties involved taking x-rays at various locations throughout the metropolitan area. The claimant drove the employer's minivan containing the employer's equipment, films and office papers, and gas and vehicle repairs were paid for by the employer. The claimant was to be in the office by 3:00 P.M., and was to call 30 minutes before her shift, or at 2:30 P.M., to see if there were any assignments or she was to go directly to the employer's office. The claimant called the dispatcher and was on her way to the office when she was in a motor vehicle accident which occurred at 3:10 P.M. The ALJ found that this case is not the case of a causal drive to work, in which the claimant was driving from her home to the employer. The ALJ noted that the essence of the claimant's employment was driving to the employer's customers and patients to provide mobile x-ray services and therefore, the claimant's accident arose out of and in the course and scope of her employment. The Commission affirmed.

 

Reaction to a Voluntary Vaccination Found Compensable

 

In Karen Doyle v. Lakeland Regional Hospital, Injury No. 05-141082, the claimant sustained transverse myelitis as a result of being given a flu vaccine at work.  The claimant had requested a vaccine, which was voluntary. The ALJ found that the transverse myelitis arose out of and in the course of her employment. The Commission further found that the reaction was an unexpected traumatic event, identifiable by time and place of occurrence. Therefore, the reaction was in fact an accident. It was found that there was a greater likelihood in contracting infection while working in a healthcare facility and therefore, the complications resulting from a flu vaccine were a hazard or risk related to the claimant's employment. Therefore, the risk of developing transverse myelitis came from a hazard related to the employment.

 

When Parties Stipulate to a Fact at Hearing ALJ Cannot Make Ruling

 

In Sheila McCoun v. OPAA Food Management, Inc., Injury No. 09-108756, the claimant  had two claims, both specific accidents involving the low back, one with an injury date of December 17, 2007 and the second with an injury date of October 27, 2009.  The employer admitted that both were compensable.  The ALJ found that the claimant's accident on October 27, 2009 was simply an aggravation of a pre-existing injury and not the prevailing factor, and therefore, denied that claim.  The claimant argued that the parties only asked the ALJ to determine which of the claims caused the claimant's need for the specific medical treatment and TTD benefits that she sought through a hardship hearing.  The Commission found that the ALJ went beyond his power because the parties stipulated that the claimant sustained an injury by accident arising out of and in the course and scope of employment on October 27, 2009. Furthermore, the parties did not ask the ALJ to resolve the issue of whether that injury was compensable. Therefore, it was improper for the ALJ to make findings and conclusions purporting to resolve such issue.

 

Employer's Idiopathic Argument Found to be Speculation

 

In Lolita Maderazo v. Dillard's Inc., Injury No. 10-076660, the claimant was a housekeeper/dock associate, with very poor English, who had thrown trash into a dumpster in the dock area and was heading back into the store through swinging doors, at which time she fell. At the Hearing, the claimant testified that her foot caught on the swinging doors after a co-worker walked through them. The claimant's co-worker testified that the claimant reported that she fell down but did not know how she did so. The store manager also testified that the claimant told her the same thing. The claimant agreed that she only told the emergency room physician that she fell down. The claimant had a history of arthritis in her knees, and the employer argued that this fall was idiopathic. The ALJ noted that the employer's argument, that the claimant's fall was idiopathic, was based on speculation. The ALJ opined that in light of the claimant's poor English skills, it was understandable that she did not provide a lot of details regarding how she fell. Therefore, the ALJ found that the claimant's fall was caused by the swinging door striking her foot. Also, the claimant had just emptied trash which was part of her job duties, and to enter and exit the dock area she had to go through the swinging doors. Therefore, the fall arose during the course of her employment. The Commission affirmed the Award.

  

Claimant's Doctor's Opinion Not Credible and Claim Denied by Commission 

 

In David Johnson v. Land Air Express, Inc. and Franklin Trucking Company, Injury No. 08-107387, the claimant was moving a pallet by hand on December 1, 2008, and sustained an injury to his lower back, however, the claimant denied treatment, but then underwent surgery on his own. Prior the work accident, the claimant had a significant history of lower back injuries, including an L4-5 spinal fusion. The ALJ found that the claimant's work injury was the prevailing factor in causing the claimant's need for medical treatment, relying on the opinion of the claimant's treating physician, Dr. Montone. The Commission disagreed with the ALJ's decision, noting that Dr. Montone's opinions were not credible.  The Commission gave numerous reasons for finding that the doctor's opinions were not credible.  First, the doctor found that the claimant's work injury, along with his repetitive job duties, were the prevailing factors causing his condition, when in fact the claimant only reported a specific accident, not a repetitive motion claim. Second, the doctor did not know about the claimant's work activities or his work injury until after his surgery. The doctor also testified that he based his opinion on the history the claimant provided, and the Commission noted that it appeared that Dr. Montone ignored objective medical evidence. Therefore, the Commission found that the doctor's opinion was not credible and denied the claimant's claim for medical treatment.

 

Aggravation of Pre-existing Condition Found Not Compensable

 

In Christopher Sliger v. Peoplelink, Injury No. 10-070253, the claimant had worked at the employer for only two weeks. On his date of injury, he had been at his normal work station for 45 minutes and was injured when he was moving a 10 pound part in each hand, below shoulder level to a table one and a half feet away. The claimant sustained an injury to his right shoulder and underwent an MRI which showed a recurrent full-thickness rotator cuff tear. It was noted the claimant had a prior full rotator cuff tear in 2008 after a motorcycle accident, which he had repaired surgically. After he was released from care after his motorcycle injury he had some intermittent pain but returned to work with no restrictions. The claimant treated with the employer's doctor, Dr. Rogers, who initially opined that the claimant's accident was the prevailing factor in causing his new rotator cuff tear, however, this was after the claimant provided an inaccurate history of his job duties on the day of his injury. After the employer provided correct information, the doctor then opined that the claimant's condition could not be the prevailing factor in causing an acute massive, two tendon rotator cuff tear. The claimant did not provide his own expert testimony but relied on Dr. Rogers' first opinion. 

 

The ALJ found that the weight of the part and how he moved it to the table, did not present any unusual strain, exertion, body contortion or force. Furthermore, the weight of the parts was consistent with objects encountered in the claimant's everyday life. The ALJ noted that after Dr. Rogers was given accurate information he opined the injury could not be the prevailing factor in causing the rotator cuff tear. Therefore, the claimant failed to prove his burden with respect to medical causation.  The ALJ further noted that the injury allegedly sustained was of a complex nature requiring the analysis and assessment of an orthopedic surgeon and expert assessment was particularly needed here when there was evidence of similar rotator cuff pathology just two years prior. Furthermore, the ALJ found that the claimant was not a credible witness having filed a false workers' compensation claim in the past, and he deviated from his prior deposition testimony in several regards.

 

The Commission affirmed noting that the ALJ did not find that an accident occurred. The Commission found that even assuming an accident occurred, this was a case of medical causation and the claimant relied solely on Dr. Rogers' first opinion. However, the Commission found Dr. Rogers' second opinion more credible. Therefore, the claimant failed to meet his burden proving medical causation.

 

Hearing Loss Found Not Compensable

 

In Bert Kersey v. Autry Morlan, Inc., Injury No. 07-061758, the claimant was assigned to investigate the cause of an engine noise in a customer's car. On July 11, 2007, he applied a stethoscope to the alternator and something popped causing a very loud noise, at which time the claimant noted he was deafened and immediately reported his injury to the employer. The claimant was prescribed hearing aids and continued to follow-up with doctors until 2010, which was paid for by the employer/insurer. The ALJ found that the claimant failed to meet his burden of proof that his work accident was the prevailing factor in causing his tinnitus. The ALJ noted that Dr. Mikulec, the employer's expert, noted that the claimant's tinnitus may be of industrial cause. She also noted that Dr. Guidos, the claimant's expert, provided a rating of 15% PPD for constant and persistent tinnitus. However, he did not note that the claimant's accident was the prevailing factor in causing his tinnitus. Therefore, the claimant failed to meet his burden on causation. The Commission affirmed the opinion of the ALJ.