MISSOURI WORKERS’ COMPENSATION

CASE LAW UPDATE

OCTOBER 2012 – DECEMBER 2012

 

When Employer Files a Late Answer, the Alleged Rate in the Claim is Deemed Admitted

 

T.H. v. Sonic Drive In of High Ridge, Case No. ED98507 (Mo. App. 2012)

 

FACTS: The claimant alleged psychiatric injuries she sustained as a result of being sexually assaulted at work by a co-worker. The ALJ found the claimant sustained 45% PPD of the body referable to PTSD and depressive disorder caused by the work injury. The ALJ used a maximum rate of $376.55, as that is what the claimant's attorney listed on the Claim for Compensation, and since the employer did not timely file an Answer, everything was deemed admitted.

 

The Commission affirmed the Award of PPD benefits to the claimant. However, it modified the ALJ's Award with respect to the rate. The Commission noted that the allegation that she had an average weekly wage of "max rate" was a legal conclusion not a factual allegation, and therefore, the employer did not admit that the claimant had a "max rate" by filing an untimely Answer. The Commission also found that since the claimant failed to meet her burden of proving her average weekly wage, the applicable rate of compensation for the Award was the minimum rate of $40.00 per week.  

 

HOLDING: The claimant appealed the ALJ's finding that the applicable rate of compensation for the Award of PPD benefits was $40.00 per week. The Court noted that an employer's untimely answer results in the admission of factual allegations in a claimant's Claim for Compensation. However, allegations in a Claim for Compensation which are legal conclusions are not deemed admitted by the employer's untimely answer. The Court concluded that wage rate is a question of fact and since the employer failed to file a timely answer, the "max" wage rate as alleged in the Claim was a factual allegation deemed admitted by the employer. Therefore, the claimant was entitled an Award of PPD benefits at the maximum rate of compensation.

 

Injury Compensable when Claimant Fell Down Stairs Carrying Helmet and Wearing

Work Boots

 

Pope v. Gateway to the West Harley Davidson, Case No. ED98108 (Mo. App. 2012)

 


FACTS: The claimant sustained a right ankle fracture and dislocation when he fell down the stairs. The claimant's job duties included inspecting motorcycles, washing and test driving motorcycles and performing routine motorcycle maintenance. At the end of the day, he was asked to drive motorcycles from the sales lot into showrooms for overnight storage. After moving the last motorcycle, he went to check with his supervisor in the service department, which was located down a staircase, to insure that everything was completed before he clocked out. He was walking down the stairs wearing his work boots and carrying his motorcycle helmet when he lost his footing and fell. An ALJ found that the claimant did not meet his burden of showing his injury arose out of and in the course of his employment. The Commission reversed the decision of the ALJ. The employer/insurer argued that the claimant was not injured in the course and scope of his employment, because he was equally exposed to the risk that caused his injury in his normal, non-employment life.

 

HOLDING: The Court agreed with the Commission finding that the claim was compensable. The Court had to consider whether the claimant was injuredbecause he was at work as opposed to being injured merely whilehe was at work. The Court found that the claimant's injury had a causal connection to his work activity, because he had just finished moving a motorcycle and he was going to check with his supervisor, which required him to descend the staircase, at which time he was wearing his work boots and carrying his work-required motorcycle helmet. He had his helmet with him because of the work activity he had performed just prior to descending the stairs.

 

The employer/insurer argued that the claimant was a motorcycle enthusiast who wore the same boots and helmet when operating a motorcycle outside of his employment, and therefore, he was equally exposed to the risk of injury in his normal, non-employment life. The Court was not persuaded. The Court did note a similarity between the claimant's work activities and his non-employment life, however, the record did not contain evidence to support a finding that the claimant was equally exposed to the risk of walking down stairs while carrying a work-required helmet outside of work. The Court also noted there was no evidence that the claimant's boots contributed to or caused him to fall, and although he testified he often wore his boots outside of work, the record lacked any evidence that the claimant fell because of his boots. Therefore, the Court concluded that the claimant's injury arose out of and in the course of his employment, and he was entitled to benefits.

 

Claimant Must Prove Work Injury was Prevailing Factor in Causing Medical

Condition and Disability      

 

Ronald Armstrong v. Tetra Pak and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD31971 (Mo. App. 2012)

 


FACTS: The claimant was at work feeding cardboard into the processing machine at which time he was not suffering any pain in his shoulder or any part of his right upper extremity. He then began working on a  "rush order" which required him to stack cardboard higher than usual, which was above the head and shoulder. He reached for the cardboard and felt a sharp deep pain in his right shoulder. The following day he reported the incident to his supervisor. He was seen by Dr. Cooper and Dr. Lehman, who both believed that the claimant's shoulder condition was pre-existing and he did not sustain an acute injury to his right shoulder. Therefore, the lifting incident was not the prevailing factor in causing his right shoulder problems. Dr. Woiteshek, the claimant's physician, did note that the work incident was the prevailing factor in causing the claimant's shoulder condition. However, Dr. Cooper and Dr. Lehman were found to be more credible. The ALJ found that the claimant failed to satisfy his burden of proving he sustained a compensable accident and that the alleged accident was the prevailing factor in causing his right shoulder problems. The Commission affirmed the ALJ's decision, however, opined that the claimant did prove that he sustained an injury to his right shoulder in an accident at work. However, the more credible evidence showed that the claimant's shoulder complaints were predominantly degenerative in nature and not primarily due to his work accident. Therefore, since the claimant did not prove that his work injury was the prevailing factor in causingboth his medical condition and any disability, they affirmed the ALJ's decision to deny benefits.

 

HOLDING: The claimant argued that the Commission correctly found that he sustained a work injury, but erred in finding that his shoulder complaints were predominantly degenerative in nature and not primarily due to the work injury. The claimant argued that this finding was erroneous because once an accident has been sustained, the employer is responsible for all injuries and disabilities that flow from this accident. The Court found no merit in this argument. The Court noted that based on Statute, a claimant is not entitled to compensation unless he proves that he suffered an accident or work related injury, and the accident was the prevailing factor in causing both the resulting medical condition and disability. The Court found the Commission correctly used the legal standard in determining that the claimant did not sustain a compensable injury because the accident was not the prevailing factor in causing both his resulting medical condition and disability.

 

Hearing Loss Found Not Compensable

 

Burt Kersey v. Autry Morlan, Inc., Case No.: SD31883 (Mo. App. 2013)

 

FACTS: The claimant was an auto mechanic and was investigating the cause of an alternator noise in a customer's engine. To do so, 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 this to his 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 the claimant failed to meet his burden of proof that his work accident was the prevailing factor in causing his hearing loss and tinnitus. The Commission affirmed the opinion of the ALJ.

 

HOLDING: The Court noted that compensability of job related hearing loss is governed by Statute and Regulation. The Court noted that if traumatic hearing loss does not meet the minimum prescribed threshold pursuant to Statute and Regulation then the work accident cannot be the prevailing factor in causing either a compensable injury or any level of compensable hearing loss. The Court noted that Dr. Mikulec, the employer's expert, was the only expert who evaluated the claimant's hearing loss pursuant to the requirements of the Statute and Regulation. The doctor determined that the claimant's hearing loss did not meet the minimum threshold for compensability and it was found that the doctor's opinion was credible.

 

With respect to tinnitus, the Court noted that Dr. Guidos, the claimant's expert simply provided a rating of 15% of the body and did not provide a causation opinion. The Court noted that Dr. Mikulec opined that the cause of the claimant's tinnitus was unknown and, therefore, the claimant failed to meet his burden of proof that there was a direct causal link between his tinnitus and his job. Therefore, the Commission's Award was affirmed. 

 


After Award, Employer Only Has to Provide Medications Necessary to Cure and Relieve

Effects of Work Injury

 

Lynda Noel v. ABB Combustion Engineering and National Union Fire Insurance Co., Case No. ED98446 (Mo. App. 2012)

 

FACTS: The claimant sustained a work-related back injury in 1997 and was awarded compensation and future treatment benefits. The employer was providing treatment with Dr. Granberg for pain management, and Dr. Robinson for depression and psychiatric disorders. At some point in 2007 the employer attempted to change the claimant's treating physicians, and she objected. Therefore, at that time the employer continued providing treatment through Drs. Robinson and Granberg. However, in April 2011, the employer sent the claimant to Dr. Jarvis, who concluded that both doctors had lost their perspective ways, and he recommended several changes to the claimant's medication. Therefore, the employer denied many of the claimant's prescription medications. The claimant filed a motion with the Commission asking it to prevent such a change in medications arguing it would endanger her life, health or recovery. (Editor's note: The employer is only required to provide treatment, ie. medications, that are necessary to cure and relieve the effects of her work injury. If there is reasonable ground to believe that the life, health or recovery of claimant is endangered the Commission may order a change in that treatment.)

 

The Commission ordered a hearing and after reviewing the transcript, concluded the claimant failed to meet her burden of showing that all of the medications she was taking were necessary to cure and relieve the effects of her work injury. Therefore, the Commission did not even address the claimant's argument that a change in those medications would endanger her life, health or recovery. The claimant appealed the decision arguing the Commission erred in finding that she failed to show that her medications were related to her work injury.

 

HOLDING: The Court noted that the Commission looked to the doctors' opinions and the claimant's testimony with respect to what medication she needed as a result of her work injury. With respect to the claimant's pain management, at the hearing she testified that Dr. Granberg had been treating her for the past eleven years for chronic pain which was related to her 1997 work-related injury, and the employer did not dispute this. The Court found the claimant met her burden of proving that the need for pain management flows from the work injury. Therefore, the Commission erred in failing to make a decision with respect to the claimant's argument that changing her medications would endanger her life, health or recovery. This aspect of this case was reversed and remanded to the Commission to make this determination.

 

With respect to the claimant's psychiatric medications, the Court noted that the Commission believed Dr. Jarvis over Dr. Robinson, the claimant's treating physician, and therefore, found that the claimant failed to meet her burden of proving that these medications were related to her work injury. Therefore, essentially, the employer did not have to provide them.


 

An Occupational Disease Triggers SIF Liability

 

Treasurer of the State of Missouri - Custodian of the SIF v. Gloria Stiers, Case No. WD75101 (Mo. App. 2012)

 

FACTS: The claimant settled her occupational disease claim against the employer for 32% of the right arm and 30% of the left arm and went to a hearing against the SIF for PTD benefits. She alleged multiple pre-existing disabilities. The ALJ found that the claimant was permanently and totally disabled as a result of a combination of her pre-existing disabilities and her subsequent occupational disease. The SIF appealed arguing that the ALJ did not have the authority to hear the case because the Workers' Compensation Statute and case law do not allow for the adjudication of occupational disease claims through Workers' Compensation. The Commission affirmed the Award of the ALJ and noted that an occupational disease qualifies as a compensable injury for purposes of triggering SIF liability. The SIF appealed, arguing that an occupational disease is not a compensable injury for the purpose of triggering SIF liability.

 

HOLDING: The Court looked directly to the plain language of the Statute that states that a "compensable injury" triggers SIF liability. The part of the Statute dealing with an occupational disease notes that "an injury by occupational disease is compensable," and therefore, an injury by occupational disease triggers SIF liability. Therefore, the decision of the ALJ was affirmed.

 

Claimant Has To Prove Permanent Disability to Receive Compensation

 

In Kyle Hunter v. Sachs Electric, Injury No. 08-112333, the ALJ denied the claimant's claim for PPD benefits, concluding that while the claimant sustained acute synovitis from striking his knee at work, he "did not materially change the structural soundness of his knee or cause any additional chondral injury to the knee." The claimant argued on appeal that it is inconsistent to find that his injury caused synovitis but did not cause an acute change to the structure of the knee. The claimant meticulously analyzed the definitions of "synovitis," "membrane," and "inflammation," before arguing that it is impossible to have acute synovitis to the knee without an acute change to the structure of the knee. The Commission noted that the claimant focused on proving that his injury caused an acute change to the structure of the knee, however, noted that his primary focus should have been on proving that the incident was the prevailing factor in causing his permanent disability. Dr. Milne, the employer's expert, opined that the claimant had 6% PPD of the left knee which was pre-existing. The Commission noted the ALJ thoroughly reviewed the evidence and concluded that Dr. Milne's opinion was more credible than Dr. Volarich's, the claimant's expert. Therefore, the ALJ's decision was fully supported by competent and substantial evidence, and therefore, was affirmed.


 

 

Employer Not Prejudiced By Lack of Notice

 

In Leotha Faulkner v. Aramark Educational Services, Inc., Injury No. 10-026257, the claimant sustained an injury to her right knee after she fell at work, and the ALJ denied the claimant's claim for TTD and PPD because he found that she failed to provide the employer with proper, timely notice. Also, she failed to prove the employer was not prejudiced as a result of her failure to provide that notice. The claimant admitted that she did not provide proper, timely notice. However, she argued that the employer was not prejudiced by her failure to do so. The employer argued that it was prejudiced because it was unable to timely investigate the accident to determine causation and address safety issues.

 

The Commission found that the employer pointed out the potential for prejudice, but did not point toactual prejudice as a result of the claimant's untimely notice. The Commission noted that, for instance, if another individual was injured at the same location that the claimant was injured, and the employer could have prevented that injury had the claimant provided proper notice, the employer would be prejudiced. The Commission also noted that the employer stipulated to the fact that the claimant sustained 20% PPD of the right knee and did not claim any possible safety violation. Furthermore, if the employer believed that causation and safety issues were in question, it should not have stipulated to those issues at the hearing. Also the claimant did not seek reimbursement for her past medical expenses nor future medical treatment. Therefore, the employer was not prejudiced by its inability to timely investigate the accident or direct and provide medical treatment.

 

Claimant's Injury Sustained in Stairwell of Building Housing Employer's Business Not

Compensable

 

In Pamela Appt v. Fireman's Fund Insurance Company, Injury No. 09-004637, the claimant slipped and fell on stairs located inside the building which housed the employer's leased office space. The relevant facts in this case were that the employer is one of multiple tenants in a large office building containing shared entryways and stairways. The employer's office was located on the second floor. The claimant was on her way to work when she entered the building, walked up the stairwell to the second floor, and slipped and fell on top of the stairs as she was opening a door. The claimant testified that she believed she fell inside the open door at the top of the stairs. The ALJ found that her injuries arose out of and in the course of her employment. The employer appealed, alleging that the claimant's injuries did not arise out of and in the course of employment because there was no evidence that the employer owned or controlled the stairs where the claimant fell.

 


The Commission noted that the evidence was clear that the employer did not own the building where the accident occurred, and therefore, the issue was whether the employer exercised sufficient "power" and "influence" over the area at the top of the stairs so as to constitute control. The Commission further noted that the record was devoid of any evidence or testimony regarding whether the employer controlled this area in which the claimant fell. Therefore, because the claimant failed to prove that the employer controlled the area where the accident occurred, she failed to meet her burden in proving that the injury occurred in the course of the employment, and therefore, the Commission denied her claim.

 

Claim Found Not Compensable Because Claimant Found Not Credible Due to Her

Inconsistent Testimony

 

In Jackie Porter v. RPCS, Inc., Injury No. 09-052591, the claimant's co-workers found her on the floor in a vestibule outside the employee bathroom complaining that she had fallen. She sustained a hip injury requiring surgery, and also an aggravation of some pre-existing back problems. The ALJ found the claimant did not provide credible testimony regarding the circumstances of her fall. The Commission agreed and further noted that the testimony the claimant provided at the hearing with respect to the moments before the event (the last thing she remembers was washing her hands), contradicts her deposition testimony (the last thing she remembers was locking the bathroom door). The Commission further noted that no one saw the claimant fall.

 

The Commission found that the claimant did meet her burden for proving accident, however, she did not meet her burden of proving that her injuries arose out of and in the course of her employment. It was noted that the claimant attempted to advance numerous theories in an attempt to overcome the evidentiary problem, but each simply only invited the Commission to speculate that something dangerous about the employer's bathroom or the vestibule outside itmay have caused the claimant to fall. The Commission concluded that they simply did not know what risk or hazard caused the claimant to fall, and therefore, the Commission affirmed the ALJ's opinion denying benefits.

 

Doctor's Opinion Found Not Credible Because He Did Not Distinguish Between Disability

From the Work Injury and Claimant's Pre-existing Disability

 

In Aaron Dye v. Lafayette County,Injury No.10-095853, the claimant injured his left knee at work while subduing an unruly inmate. He had a prior injury to his left knee on December 28, 2009. An ALJ found that as a result of this work injury, he sustained 22.5% PPD to the left knee. The Commission noted that Dr. Wise, the employer's expert, provided a rating of 5% PPD from the work injury. Dr. Stuckmeyer, the claimant's expert, provided a 40% PPD rating based on a combination of the claimant's prior injury and the work injury. He did not attribute a specific portion to the work injury. The Commission noted that the ALJ did not even acknowledge the dissimilarity between the two doctors' ratings before simply splitting the difference. The Commission noted that in light of the claimant's two injuries, an expert opinion attributing a specific percentage of disability to the work injury was necessary for the ALJ to arrive at a decision on this issue. Since Dr. Stuckmeyer did not attribute a specific percentage to the work injury, the Commission did not give his opinion any weight and found that Dr. Wise's rating of 5% PPD was credible and awarded the claimant the same.

 

 

Claim Denied Because Claimant Alleged Two Injury Dates and Multiple Versions of the

Injury

 


In Hiba Sadic v. SEMCO Plastics Company, Inc., Injury No. 06-042666, the ALJ found that the claimant failed to prove an accident that caused her right shoulder injury. The ALJ noted that the Claim for Compensation alleged an accident date of "on or about 4/4/06" with no specific description of the event. It was noted the claimant was originally from Bosnia and there were language and translation issues. The Commission did take this into account, however, noted that there were at least 5 different versions of how the claimant was injured and two alleged dates of injury. She reported multiple different histories of injury to different providers which were: removing excess plastic with a knife; heavy lifting; pushing boxes; being hit by a robotic machine; and finally, pulling on a lever on a machine. The ALJ found that even though the claimant testified regarding a traumatic event or unusual strain, she did not have a specific date of injury, reporting two different dates of injury, and there were several versions of the injury. Therefore, the claimant failed to establish a compensable accident and the claim was denied. The Commission affirmed the decision of the ALJ.

 

Claimant Can Receive PPD Benefits Even if Found To Be PTD as the Result of a Prior

Injury

 

In Ricky Cantrell v. L. Krupp Construction, Inc., Injury No. 07-040226, the claimant was diagnosed with bilateral carpal tunnel syndrome in May 2007 which resulted from his job duties. Dr. Pruett treated the claimant and provided a rating of 10% of each wrist. The claimant also had a prior claim with an injury date of October 18, 2006, and was awarded PTD benefits as a result of that injury. The ALJ denied PPD benefits because he was diagnosed with a carpal tunnel condition in May 2007, at which time he was already permanently and totally disabled for conditions unrelated to that carpal tunnel syndrome. The Commission reversed the ALJ's denial of benefits. The Commission noted that the ALJ ruled that PPD benefits are only payable if an injured worker suffers an actual loss of or reduction in earning capacity. The Commission noted that the Statute states PPD shall be allowed for loss by severance, total loss of use or loss of use of one or more parts of the body. Under the plain reading of the Statute, the employer shall pay PPD benefits for impairment to the function of the body. It was noted that while loss of function will often lead to some actual impairment or incapacity, there are times that it will not. The Commission further noted that an actual impairment of earning capacity is not a prerequisite to recovery of PPD benefits. Therefore, the claimant was entitled to PPD benefits for his carpal tunnel syndrome.

 

Claimant Has 30 Days From the Date a Diagnostician Connects the Condition to Work to

Report to the Employer

 


In Sheryl Berend v. Fasco Industries Inc., Injury No. 05-142895,the ALJ denied the claimant's left shoulder repetitive motion and bilateral upper extremity repetitive motion claims for lack of notice because the claimant did not provide notice to the employer within 30 days. The Commission noted that the claimant has to report an injury resulting from an accident within 30 days. However, in the context of an injury resulting from an occupational disease, the triggering event is the "diagnosis of the condition." The Courts have defined this to be when a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. The Commission found that none of the claimant's treating physicians identified a causal connection between the claimant's work and her bilateral upper extremity problems. The Commission further found that on November 17, 2008, Dr. Volarich was the first diagnostician to make the causal connection between the claimant's underlying medical condition and her work-related activity or exposure. Therefore, this is when the 30 day notice period began to run. Since the claimant filed her claim on August 10, 2006, more than 2 years prior to the date Dr. Volarich issued his report, her claim was not barred.