State News : Missouri

                                    Simon Law Group, P.C.

                 720 Olive Street, Suite 1720, St. Louis, MO  63101

                                             314-621-2828

   MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                              January 2023 – March 2023

Claimant Must Establish a Medically Documented Pre-existing Condition Significantly Aggravated the Primary Injury

Dubuc v. Second Injury Fund, Case No. SC99605 (Mo. S. Ct. 2023)

FACTS: The claimant sustained an injury in October 2015 when he fell off a ladder at work injuring his wrist, kidneys and low back. He settled with his employer for his primary injuries but alleged that he was PTD under Section 287.220.2 and that the Fund was liable for benefits due to his pre-existing disabilities, including multiple hernias and Factor V Leiden mutation with anti-coagulation and his primary injury.

Following the hearing, the Administrative Law Judge denied benefits because the ALJ determined the primary injury alone rendered him PTD. Claimant appealed and the Commission reversed the Award of the ALJ and awarded him benefits from the Fund. The Fund appealed.

While the case was pending the Supreme Court handed down Cosby, which required the claimant to meet the standards in Section 287.220.3 to prove his claim. Prior to Cosby, Section 287.220.3 applied only when both pre-existing and primary injuries occurred after January 1, 2014 but Cosby held that Subsection 3 applies when any injury occurred after January 1, 2014.

Thereafter, the Court of Appeals reversed the Commission’s Award and remanded the case, instructing the Commission to determine if the claimant was entitled to benefits from the Fund under Section 287.220.3. The Commission did not award the claimant benefits from the Fund.

HOLDING: The Supreme Court affirmed the Commission’s decision. The claimant failed to establish his primary injury and pre-existing disabilities entitled him to PTD benefits from SIF under Section 287.220.3. He failed to establish any “medically documented” qualifying pre-existing disability that “directly and significantly aggravated or accelerated” his primary injury.

First, there was no “direct evidence” in the record of claimant’s hernias but only “self-reported history.” Claimant’s own statements about hernias noted by doctors in medical records were not considered “medically documented” because the doctors’ references to hernias were not based on records of diagnosis or treatment, but based on the claimant’s own statements.

Second, there was no showing that claimant’s Factor V Leiden mutation and anti-coagulation “directly and significantly aggravated or accelerated” his primary injury. When discussing the relationship between claimant’s pre-existing injuries and primary injury, Factor V Leiden mutation and anti-coagulation were omitted from the expert’s report. The claimant must show that “the impact of the pre-existing disabilities on primary injury is more than incidental; they must clearly exacerbate the primary injury in a meaningful way.”

Claimant’s Medical Evidence Must Show Pre-existing Disability Significantly and Directly Aggravated the Primary Injury

Swafford v. Second Injury Fund, Case No. SC99563 (Mo. S. Ct. 2023)

FACTS:  Claimant’s primary injury occurred in October 2017 when he slipped at work while getting out of a truck. He was diagnosed with a moderately large rotator cuff and labrum tear. After settling his worker’s compensation claim with his employer, he went to a hearing against the Fund, alleging his pre-existing disabilities combined with his primary injury, rendering him PTD.

The claimant had multiple pre-existing disabilities including ankylosing spondylitis, various cardiac conditions for which he had undergone multiple procedures, and right shoulder pain since 2012. In 2016, prior his work injury, he was diagnosed with bursitis in his right shoulder, which required steroid injections every three to four months.

Following the hearing, the ALJ denied the claim, concluding that the claimant failed to demonstrate he suffered from a “qualifying” pre-existing disability under Section 287.220.3. The Commission agreed with the ALJ’s determination that the claimant failed to show his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury pursuant to Section 287.220.3. Claimant appealed the Commission’s decision.

HOLDING:  On appeal, the claimant challenged the Commission’s decision for allegedly disregarding the expert testimony he offered to establish a causal relationship between his pre-existing disabilities and his primary injury. The Court found that the claimant failed to establish that his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury.

While the claimant’s medical reports establish that his pre-existing disabilities had some worsening effect on his primary injury, they were insufficient to show that the worsening effects rose to the level of significant and direct aggravation or acceleration. First, Dr. Lingenfelter’s “vaguely worded report” failed to establish “as a factual matter that claimant’s pre-existing disabilities ‘significantly and directly’ aggravated his primary injury.” He did not clearly articulate the extent to which any of those disabilities exacerbated that injury.

Second, Dr. Koprivica also provided “no medical evidence” that any of claimant’s pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury. While Dr. Koprivica stated that there was a “significant synergistic effect” between the pre-existing disabilities and the primary injury, that specific language relates to the standard for SIF liability prior to the 2013 amendments. Although medical experts need not use “magic words” (“synergistic effect”) associated with the less stringent standard (“combined with”) that qualifies for SIF liability under the pre-amended Section 287.220.2. Such language is insufficient under Section 287.220.3. Therefore the Fund was not liable for benefits.

Claimant Must Present Evidence Required to Meet All Statutory Requirements to Show PTD.

Weibrecht v. Second Injury Fund, Case No. SC99493 (Mo. S. Ct. 2023)

FACTS: Claimant’s primary injury was a low back injury he sustained at work in July 2016. After settling his claim with his employer, went to a hearing against the Fund alleging that he was PTD due to his pre-existing injuries to his low back in 2005 and 2009 and right shoulder in 2014 combined with his primary injury.

A hearing was held before the ALJ in May 2019. Before the ALJ issued her final Award, the Court handed down its opinion in Cosby finding that Section 287.220.2 applies when all injuries occurred prior to January 1, 2014 and Section 287.220.3 applies when any injury occurred after January 1, 2014.

After the hearing, but before the ALJ’s final Award, the claimant filed a motion to reopen the record for a supplemental hearing, contending that Cosby changed the law. He contended the Court’s decision in Cosby changed his burden of proof, which constituted “good cause” to reopen the record. The SIF argued that while the ALJ has authority to reopen the record in certain circumstances, doing so was not warranted under the facts of this case.

The ALJ denied claimant’s post-hearing motion and denied his claim for benefits from the SIF. The Commission affirmed the ALJ’s decision.

HOLDING:  The Court affirmed the earlier decisions finding that  the Commission did not abuse its discretion in affirming the ALJ’s denial of claimant’s post-hearing motions to reopen the record and submit additional evidence.

The Court pointed out that workers’ compensation law is entirely a creature of statute. Nothing prohibited the claimant from presenting evidence under both Sections 287.220.2 and 287.220.3 at his hearing. It was not against the logic of the circumstances and so unreasonable to indicate a lack of careful consideration for the ALJ to conclude there was no good cause to reopen the record when the Court had not previously interpreted Sections 287.220.2 and 287.220.3 and nothing precluded the claimant at from making alternative arguments. Accordingly, the ALJ did not abuse her discretion. Claimant should have been aware of what evidence was required to make a submissible case for PTD and the plain language of Sections 287.220.2 and 287.220.3 set forth the necessary evidence to make a submissible claim.

Upon Reaching MMI, Claimant Can Be Found PTD

LME, Inc. v. Robert Powell and Second Injury Fund, Case No. WD85427 (Mo. App. 2023)

FACTS:  The claimant suffered a work injury to his back while operating a pallet jack. He underwent a lumbar decompression fusion by Dr. Bailey. He determined the claimant reached MMI and provided a 12.5% rating of the lumbar spine. Prior to the work injury, claimant had suffered disability to the back due to two prior motor vehicle accidents.

After he was released at MMI for the back, the claimant began treatment on his own for major depressive disorder. Prior to the work injury, he had been diagnosed as bipolar and had experienced depression and suicidal ideation since he was a teen. Furthermore, he had only a ninth grade education, no GED and a history of learning and behavioral problems.

Dr. Stuckmeyer determined that as a result of the work injury, the claimant sustained 35% PPD to the body in addition to a pre-existing 15% for lumbar and pelvis injuries from his previous car accident. In a subsequent report, he determined the claimant was permanently totally disabled as a result of the work injury after reviewing the vocational report of Mr. Cordray and psychiatric report of Dr. Hill who opined that the work accident was the prevailing factor for the claimant’s development of major depressive disorder and somatic symptom disorder, and he assigned 40% and 15% PPD for each disorder, respectively.

The ALJ found the claimant PTD and that the employer was responsible for benefits. The Commission affirmed the Award.

The employer appealed, arguing that the Judge and Commission erred by determining the claimant PTD by misstating the agreement reached by the parties regarding the claimant’s MMI date, because the employer only agreed that the employee reached MMI for his physical injuries, because the employer never accepted or admitted a psychological injury and therefore the employee cannot be determined to be PTD until he has reached MMI for all conditions.

HOLDING: The Court disagreed with the employer’s argument and affirmed the Award.

At the final hearing, both the claimant and employer stipulated on the record to the MMI date of April 12, 2018, the date Dr. Bailey released the claimant. There was no discussion or delineation between the physical and psychological injuries regarding MMI in the stipulated facts. By arguing that the employer accepted the back injury but not the alleged mental injury misconstrues that one of the purposes of the final hearing was to resolve whether the employee suffered any disability.

The Court also noted that the ALJ relied on the opinion of Dr. Hill regarding the psychiatric injury. He stated that the recommended treatments are not curative by any means, but may help improve the claimant’s daily life. Thus, contrary to employer’s position, such evidence supports that the psychiatric injury has reached the point where no further progress is expected or maximum medical improvement.

Objective Symptoms at Time of Accident Include Indications of Injury Perceptible to Others

Harper v. Springfield Rehab & Healthcare Center, Case No. SD37268 (Mo. App. 2023)

FACTS: The Commission stated in its rulings: “Claimant suffered an ‘unusual strain’ in her lower back when she pushed the heavy medicine cart…which produced objective symptoms of injury” based on claimant’s testimony that she “felt a ‘pull’ in her lower back” and “shortly thereafter (during the same work shift)…had difficulty walking.”

The employer appealed the Commission’s decision. They argued that the claimant had not sustained an accident under the law because the Commission “failed to establish objective symptoms of an injury at the time and place of occurrence.”

HOLDING:  The Court stated that although the definition of “accident” in the statute has always included the phrase “producing at the time objective symptoms of an injury,” the changes to the statute in 2005 abrogated earlier case law interpreting the definition of “accident.”

They found that the adjective “objective” when used in combination with “symptom” means “perceptible to persons other than the affected individual.” They concluded that the statutory phrase, an unusual strain “producing at the time objective symptoms of an injury” should be interpreted to mean an unusual strain producing at (i.e. near) the time objective symptoms (i.e. indications perceptible by persons other than the claimant of the existence) of an injury (i.e. violence to the physical structure of claimant’s body).

The Court noted that the Commission found that the claimant “had difficulty walking” later in the same shift during which she suffered an unusual strain. Claimant’s difficulty walking would be perceptible to persons other than the claimant, indicated the existence of violence to the physical structure of claimant’s body, and was produced near the time of the unusual strain.

Therefore, the Court affirmed the Commission’s decision.

Claimant Not entitled to Additional TTD Benefits After MMI Because Refusal to Look For Work is Not Inability to Work.

Thompson v. CSI Commercial Services, Inc. and Second Injury Fund, Injury No. 10-087819

FACTS:  The claimant testified at injured her low back on July 20, 2010. She underwent a fusion at L2-L3 with Dr. Robson on March 7, 2011. She testified the surgery did not relieve her symptoms. Dr. Robson opined in his reports that claimant’s continuing complaints following the March 7, 2011 surgery were related to chronic changes at L4-5 and L5-S1 level which were degenerative in nature and were not acutely injured during the work-related injury. Dr. Robson found her at MMI referable to the work injury on August 18, 2011 and released her from care with work restrictions.

Thereafter, the claimant agreed with her employer that she would not be able to continue working for the employer due to the work restrictions. TTD benefits were terminated as of August 30, 2011, due in part to the MMI report of Dr. Robson. The claimant testified she applied for and began receiving unemployment benefits upon termination of her TTD benefits and received unemployment benefits from September 2011 through December 2012. She also testified that since she left the employer, she has been unable to find a job and has not worked to date.

Claimant testified that when her unemployment benefits terminated in December 2012, she, at the urging of a few individuals, including her primary care physician, Dr. Maebe, applied for Social Security Disability benefits due to her back pain, surgery pain, anxiety, and depression. She was awarded SSD benefits as of January 8, 2013.

The employer sent the claimant back to see Dr. Coyle in 2016. She underwent a surgical fusion at L5-S1 May 22, 2017. Dr. Coyle released her to return to work on November 30, 2017 with restrictions of 30 pound lifting occasionally and 20 pounds frequently. The claimant testified that she had not conducted a job search since Dr. Coyle released her on November 30, 2017. She testified she cannot work due to back pain and lower extremity radicular pain and numbness. She also testified that she cannot drive a car very far from her home, and she is very limited in her daily life activities. She denied her vocational specialist, Mr. Kaver’s, testimony that she told him she had to rest in a reclining position for most of the day.

HOLDING:  The Judge found that the claimant was entitled to 42.5% PPD as a result of the July 20, 2010 work injury and was not PTD. He also did not find any liability against the Second Injury Fund.

With respect to the issue of past TTD benefits, the Judge noted that Dr. Robson found claimant at MMI as of August 18, 2011. He further noted that the claimant received unemployment benefits through November 14, 2012 and in order to receive the same, the claimant needed to certify each week that she met the basic requirements such as being able to work and being available for full time work. Therefore, he found that the claimant was not entitled to TTD benefits from September 2011 through November 14, 2012 while she was receiving unemployment benefits.

The Judge noted that the purpose of TTD benefits is to cover claimant’s healing process. TTD benefits are owed until claimant can find employment or his condition has reached MMI. When further medical procedures are not expected, temporary benefits are not owed and a temporary award for additional TTD benefits is not warranted.

For the period of time of November 14, 2012 through November 8, 2016, the Judge found that the claimant was not entitled to TTD benefits from the time of her termination of unemployment benefits on November 14, 2012 through Dr. Coyle’s reexamination of her on December 8, 2016. Evidence from vocational specialist, Ms. Gonzales, indicated the claimant was capable of obtaining employment in the open labor market as well as medical evidence of MMI status from Dr. Robson and Dr. Coyle.

For the period of time of November 8, 2016 through November 30, 2017, the Judge found that the claimant was entitled to receive TTD benefits for a second period of time from Dr. Coyle’s December 8, 2016 reexamination of claimant and during her treatment by Dr. Coyle, including the May 27, 2017 surgery and post-surgical care until Dr. Coyle released claimant at MMI as of November 30, 2017. The right to TTD during the second period of time terminated based on Dr. Coyle’s MMI finding on November 30, 2017.

With regard to the period of time of November 30, 2017 to the present, the Judge noted that the evidence demonstrated that the claimant was capable of looking for work as of the date of MMI on November 30, 2017 but did not. He stated that in this case, a refusal to look for work demonstrates an unwillingness to return to work, not an inability to return to work. He found that the claimant is not entitled to any additional TTD benefits from Dr. Coyle’s release of the claimant on November 30, 2017 to the present.

The Commission affirmed the Award of the ALJ.

Awarding of Attorney’s Fees is in the Discretion of ALJ

Roe v. Darden Restaurants, Inc., Injury No. 18-074813

FACTS: Claimant attorney asserted a 25% lien on the gross proceeds paid in the case including payment of medical bills regarding claimant’s treatment for her September 13, 2018 injury. Initially, claimant’s attorney requested a list and accounting from the employer of all of the medical bills which had already been paid. Furthermore, the evidence shows that the employer notified claimant’s attorney in January 2020 that they intended to pay the remaining bills. Proof of such payment was forwarded in April 2020 to claimant’s attorney. Despite the foregoing, claimant’s attorney never advised his client the bills had been paid and proceeded to prolong the case for an additional two years, including a request for a deposition of a corporate representative to confirm payment of the bills.

Interestingly, at the hearing in March 2022, the employee testified she had never received a bill from any healthcare provider in connection with her injury.

Following the hearing, the Administrative Law Judge awarded compensation but limited the claimant’s attorney’s fees to 25% of the PPD awarded.

HOLDING: The ALJ noted that the determination of attorney’s fees is at the discretion of the Court. She noted that the efforts of claimant’s attorney after the bills were paid in 2020 were unnecessary. Although the claimant’s attorney did review the bills and send the employer’s attorney a couple of letters prior to the payment of the bills, the services provided were no more than the average workers’ compensation case might require. The majority of the claimed hours of work were after the bills had already been paid.

The Commission affirmed the ALJ’s award finding that the limitation of attorney’s fees to 25% of the PPD awarded was fair and reasonable.

Under Strict Construction, There are No Exceptions for the Late Filing of an Application for Review.

Gray v. Hawthorn Children’s Psychiatric Hospital and Second Injury Fund, Case No. ED110400 (Mo. App. 2023).

FACTS:  On June 10, 2019, the Administrative Law Judge held a final hearing. On September 12, 2019, the ALJ issued the final Award denying benefits. The parties had 20 days from the date of the final Award to file an Application for Review with the Commission. The claimant attempted to mail her Application for Review on September 30, 2019, within the 20 day period, however, the mailing was returned to her by the USPS due to insufficient postage.

On December 3, 2020, the ALJ conducted an Evidentiary Hearing where the claimant offered testimony about the mailing. After considering the evidence from the remand Hearing, the Commission accepted the claimant’s Application for Review as timely. Thereafter, contrary to the ALJ’s decision, the Commission ordered employer to pay PPD benefits. The employer appealed.

HOLDING:  The Court reversed the Commission and set aside the Final Award. It found that the Commission acted in excess of its powers when it accepted the claimant’s Application for Review. The claimant’s Application was untimely and the statute, under strict construction, does not provide a good cause exception to the 20-day deadline.

The Court explained that even if they accepted the claimant’s argument that the postage was sufficient (which they do not) and the USPS erred in returning the mailing for insufficient postage, the workers’ compensation statute does not provide exceptions for late filings so the Commission did not have jurisdiction to review the claimant’s Application.

Simon Law Group, P.C.

720 Olive Street, Suite 1720, St. Louis, MO 63101

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2022 – December 2022

Tripping Over Pallet is Not a Hazard Which Employee is Equally Exposed Outside of Work

Burns v. Wal-Mart Associates, Injury No. 20-025625

FACTS:  Claimant testified that her injury at work occurred on April 24, 2020. She stated that as she was walking from the break room to her workstation in the self-checkout section of the store, she tripped on a pallet on the floor. She stated that she did not remember actually falling. Her next memory was sitting on the pallet with a paramedic helping her to get up. She alleged injuries to her head and left shoulder.

Although the ambulance and emergency room records indicated that claimant might have experienced a syncope episode or fainted, there was no evidence showing that the first responders or the emergency room personnel asked claimant whether she had fainted or experienced a syncope episode. There was no evidence showing that they had even asked claimant what happened. In addition, the ambulance records indicated that claimant was not oriented as to the time, meaning that she was confused and the medical records confirmed that she was knocked unconscious and suffered a concussion when she struck her head on the hard floor surface or pallet. She testified to short-term memory problems as a result of her concussion. Wal-Mart did not deny that it left a pallet impeding the trafficway or aisle where claimant fell however argued that the injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of an unrelated to the employment in normal non-employment life. The ALJ awarded benefits and the claimant appealed.

HOLDING: The Commission found that while it is true that claimant was walking when she tripped on the pallet and fell and that she walks in her personal non-employment life, there was a clear nexus in claimant’s case between her injury and her work and her risk for the injury. The Commission noted that the focus should have been on her tripping and falling on a pallet Wal-Mart left in a congested aisle in the store and not merely on her walking as she does in her personal non-employment life or whether she possibly could have tripped on some pallet in her personal non-employment life.

Thus, unlike the Johme case, where Ms. Johme’s work had nothing to do with the risk of her twisting and turning her ankle and falling off her sandal, claimant’s work was the cause of her injury when she tripped on a pallet Wal-Mart left in a congested aisle and falling and injuring her head and shoulder. In addition, there was no evidence showing that claimant was “equally” exposed to the same risk of tripping on a pallet and falling in her personal non-employment life.

Therefore the Commission affirmed the ALJ’s Award and decision.

Work Accident Was Not the Prevailing Factor, Because Based on Credible Expert Testimony and Prior Medical Records, Claimant Had Symptoms Prior to Date of Injury

Taylor v. Darden Restaurants, Inc./Olive Garden, Injury No. 17-098731

FACTS: On December 13, 2017, claimant injured her neck while at work. She bent over to locate a lid, straightened up, and a box fell from a shelf, striking her on the head. At the time of the incident, she was working under permanent light duty restrictions as a result of having a cervical fusion in January 2017 as a result of a May 3, 2015, work injury.

After her December 13, 2017 work injury, she was referred to Dr. Mirkin by Concentra who stated that the claimant had no symptomology prior to the December 13, 2017 incident and developed symptoms that correlate with her MRI findings after the 2017 incident. He opined that the prevailing factor in her need for treatment was the December 13, 2017 incident working at Olive Garden.

Following the December 13, 2017 work injury, Dr. Bernardi noted in his IME report the claimant’s ongoing symptoms after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. He opined that the claimant had a poor result from her January 30, 2017 surgery and that her current symptoms most likely represent chronic cervical myeloradiculpathy related to her prior work accident in May 2015 and that the more acute symptoms were related to an aggravation of her residual cervical stenosis. He further found that the claimant sustained no PPD to her cervical spine attributable to her December 13, 2017 work injury. The ALJ found that the employer was responsible for treatment and the employer appealed.

HOLDING: The Commission noted that based on the expert opinion of Dr. Bernardi, it was not persuaded that the claimant’s December 13, 2017 work injury was the prevailing factor causing her current cervical condition and need for surgery. They discredited Dr. Mirkin’s contrary opinion because it was based on his incorrect assumption that the claimant had fully recovered and had no physical complaints or limitations after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. Therefore, the Commission reversed the ALJ’s temporary or partial Award for additional medical treatment regarding the cervical spine.  

Claimant Met Objective Standard of Extraordinary and Unusual Stress Involving Police Shooting Incident

Dahman v. City of Clinton, Injury No. 17-090567

FACTS: On August 6, 2017, claimant was working as a police officer for the City of Clinton when he heard a radio report from his co-worker and friend, Officer Michael, that shots had been fired and that an officer was down. Claimant immediately responded and found Officer Michael on the ground with another officer attending to him. Officer Michael was still alive when claimant arrived.

Claimant was tasked with the duty of responding to where the suspect’s vehicle had apparently crashed after the shooting. He had to stay at the scene for most of the evening into the early morning to secure it. He later learned that evening that Officer Michael had passed away.

Subsequently, the City of Clinton took immediate measures to provide counseling to claimant. He then sought treatment with his family physician for anxiety. Thereafter, he left the City of Clinton to work as an insurance adjuster, with this event being the main factor for him leaving his position. However, his employment as an adjuster ended when he failed to show up to work on a number of occasions for symptoms which he attributed to the shooting event.

Prior to the shooting, claimant had other events in his life including responding to the death of a child as an officer and issues with alcohol use. However, he did not take any medication for anxiety, did not have difficulty sleeping, or other symptoms.

Dr. Logan, the employer’s expert, diagnosed claimant with PTSD, mild major depression, and alcohol use disorder. He opined that the August 6, 2017 shooting event did rise to the level of extraordinary and unusual mental stress. He also rated claimant’s PPD at 10% of the body.

Dr. Halfaker, the claimant’s expert, opined that the event of August 6, 2017 and the stress that it caused was both extraordinary and unusual. He provided a 10% to 14% disability of the body.

HOLDING: Pursuant to the statute “Mental injury resulting from work-related stress does not arise out of and in the course of employment, unless it is demonstrated that the stress is work-related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events”.

The objective standard for determining whether claimant’s stress was compensable is whether the same or similar actual work events would cause a police officer extraordinary and unusual stress. The claimant must demonstrate the actual events he experienced were such that a reasonable policeman would experience extraordinary and unusual stress.

The City of Clinton argued that police officers’ shootings are not extraordinary, but the ALJ declined to accept this reasoning. The particular facts of claimant’s experiences, including but not limited to, responding to the scene of Officer Michael’s shooting which was a friend, knowing the suspect was still at large and had a long rifle, and knowing that the protective vest would not help along with claimant feeling like a sitting duck in the dark, are all factors in support of the Award for compensation to the claimant.

The ALJ awarded the claimant 10% PPD of the body as a result of the events of August 6, 2017. The Commission affirmed the Award and decision of the ALJ.

Claimant Has Burden of Proof to Show That a Contract of Employment Was Entered Into in the State of Missouri to Establish Jurisdiction

Wulf v. Tradesmen International, Inc., Injury No. 18-113120

FACTS: The sole issue to be addressed was jurisdiction. The accident occurred on November 14, 2018 in Marietta, Georgia.

The employer/insurer disputed and denied that Missouri had jurisdiction. They admitted that the Kansas Division of Workers’ Compensation had jurisdiction over this claim and admitted claimant sustained a compensable injury. Benefits were immediately started and continued under the Kansas Workers’ Compensation Act.

Claimant testified that he originally applied for employment with Tradesmen, the employer, in July or August of 2013. He filled out an application online at the job center in Leavenworth, Kansas where he was living at the time. Following his completion of the application, he was invited to the Tradesmen office located in Kansas City, Kansas for an interview.

The claimant and Tradesmen had a rather unique employment relationship. Claimant did not have an office which he reported to on a daily basis. Instead, he reported to whatever project might be available for the clients of Tradesmen. All job assignments were provided by way of telephone call or text messages to him, at times daily, or a weekly basis. However, there was a sporadic nature to claimant’s employment assignments. There would be times when he was working full regular duty, and at other times, there would be gaps in employment of two months, six months, or longer.

In September 2017, claimant was laid off from a different employer. As he was in his car, his phone flashed that Tradesmen was calling about a job assignment. This was a brief phone call. Claimant then received a text message with more information about the job assignment in Overland Park, Kansas. The ALJ determined that Missouri did not have jurisdiction over this claim and the claimant appealed.

HOLDING: Pursuant to statute, Missouri has jurisdiction only under three circumstances: (1) when the injury occurs in Missouri; (2) when the claimant’s employment is localized in Missouri in 13 weeks leading up to the date of injury, and (3) when the contract of employment was entered into in Missouri.

In this case, the claimant was injured in Georgia and all of claimant’s employment in the 13 weeks prior to the injury occurred either in Kansas or Georgia. With regard to the contract of employment, it was entered into in Kansas in August of 2013. The claimant conceded that he had an interview at the Kansas City, Kansas office of Tradesmen and was offered employment at that time.

To form a contract, there must be a meeting of the minds between the parties. That occurred in August of 2013. However, there was no “meeting of the minds” to form a new contract of employment in September of 2017. It was the claimant’s burden of proof to convince the Court there was somehow a new contract of employment during this brief phone call with the representative from Tradesmen. The pattern and practice of conduct between the parties clearly demonstrates otherwise. Therefore the Commission found that the claimant failed to sustain his burden of proof and Missouri does not have jurisdiction. Therefore the Award of the ALJ was affirmed.  

Work Injury Alone Sufficient for PTD Where Restrictions Are Result of Accident Despite Significant Pre-Existing Conditions

White v. Schrieter Materials LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 18-046371

FACTS: On June 14, 2018, the 65-year-old claimant was working on the back end of a concrete mixer truck and fell to the ground striking his head and breaking his arm. Due to the accident, he suffered closed head trauma with subdural hematoma, nasal fractures, comminuted left wrist fractures, a cervical fracture, and severe contusion to the right calf. After the accident, the claimant was transported to Mercy Hospital and underwent an open reduction internal fixation of the distal radius fracture to his left wrist. For his C7 end plate fracture, he received non-operative conservative treatment. He was discharged from the hospital two days later on June 17, 2018. Thereafter he began occupational therapy, and then physical therapy.

It was noted that claimant continued to use a cane at times after his work injury, but this was because of left hip pain which was unrelated to the work-related injury. The claimant had a number of pre-existing conditions. He suffered a prior work-related injury from a 2006 motor vehicle accident and was awarded PPD of 25% of the cervical spine, 1% of the nose, 2% of an eye, 10% for seizures, 15% of the left shoulder, 3% of the left knee, 2% for a rib injury, 8% of the lumbar spine, and 15% for depression.

With respect to the June 14, 2018 work accident in question, Dr. Volarich opined that the claimant had significant restrictions for his post-concussion syndrome and confirmed that these restrictions related solely to his June 14, 2018 accident. The claimant’s testimony also supported the restrictions provided by Dr. Volarich as a result of the head injury from the June 2018 accident.

It was further noted that the defense did not directly impeach Dr. Volarich’s findings regarding the claimant’s closed head injury. Also, Dr. Randolph examined the claimant and found that the episodes of vertigo and dizziness were largely resolved, but Dr. Volarich found that claimant had significant residual complaints relating to vertigo and dizziness.

HOLDING: The ALJ determined that the evidence was persuasive that the 2018 work injury considered alone was sufficient to render the claimant unemployable in the open labor market. Due to the injuries sustained in the 2018 accident, the claimant had significant, ongoing and disabling symptoms that prevented him from returning to any work. The Judge noted that given the two contrasting perspectives, Dr. Volarich’s conclusions were more consistent with the other evidence. He noted that while the claimant certainly had many pre-existing disabling conditions, the claimant’s disabilities from the work injury from this occurrence were sufficient to render him permanently and totally disabled. Based on the weight of the evidence, the claimant was awarded permanent total disability benefits from the employer/insurer. Because the employer was found liable for the permanent and total disability, the claim against the Second Injury Fund was denied. The Commission affirmed the Award and decision of the ALJ.

Prior Disabilities Must Individually Meet Fifty Week Threshold for SIF Liability for PTD

Adams v. Treasurer of the State of Missouri – Custodian of Second Injury Fund, Case No. WD84818 (Mo. App. 2022)

FACTS: The material facts were undisputed. Claimant suffered three significant work-related injuries during his career.

In 1984, claimant tore ligaments, tendons, and nerves in his left hand which resulted in reconstructive surgery. He settled his claim for 32.5% of the left wrist or 56.875 weeks of disability.

In 2001, claimant fell off scaffolding while working. His doctor found 35% PPD of the right leg, 35% of the left leg, and 7.5% of the lumbar spine. The employer’s doctor provided a 5% PPD rating of the right leg, 3% of the left leg, 2% of the lumbar spine, or 5% of the body as a whole for all three disabilities.

The claimant settled his 2001 injury against the employer based on “approximate” disability of 15% of the body referable to bilateral knees and low back which was 60 weeks of disability. The Compromise Settlement does not provide a breakdown of weeks of disability attributed to the low back or each knee.

On September 17, 2015, claimant sustained his final work-related injury. His right hand was crushed and his right shoulder injured when his hand was pinned between a jack handle and the bottom of a trailer. Surgery was performed. Thereafter, claimant filed a workers’ compensation claim against his employer for PPD and a claim against the SIF for PTD.

The ALJ issued his final Award concluding that the claimant was PTD due to the primary injury together with his prior disabilities from the 1984 injury and the 2001 injury.

The SIF appealed the ALJ’s Award because the disabilities which resulted from the 2001 injury did not qualify under Section 287.220(3)(a). They noted that the 2001 injury resulted in disabilities to two specific body parts, the knees and the back, that do not separately meet the 50-week threshold.

The Commission reversed the ALJ’s Award finding the SIF had no liability. The claimant appealed.

HOLDING: The claimant appealed the Commission’s Final Award denying compensation from the SIF. Claimant claimed the Commission erred in failing to find the SIF liable for claimant’s combined disabilities from his work-related 2001 injury because together they met the 50-week threshold required by Section 287.220.3.

It was noted that the Commission found “as a factual matter, that pre-existing disability relating to employee’s (2001) work injury did not result in PPD of at least 50 weeks to either employee’s back or bilateral knees”. Also, that in 2001, the SIF entered into this Compromise Settlement does not also infer or result in an agreement that the disabilities meet the current statutory requirements of Section 287.220.3. Rather, the Court noted that they were bound by the Commission’s factual determination that the Compromise Settlement does not presently satisfy the statutory requirements of Section 287.220.3. It was noted that the settlement contract clearly states that “There are disputes between the parties” and “because of the dispute…the parties…enter into a compromise lump settlement…” Based upon “approximate disability”. In doing so, the Court noted the Compromise Settlement simply agreed to an approximated and cumulative disability rating for purposes of settlement without separately rating the individual disabilities themselves, a function necessary to determine whether either qualifies as a pre-existing disability as defined by Section 287.220.3(2).

The Court further noted that both the claimant’s and Dissent’s use of pre-2005 Missouri caselaw recognizing the “body as a whole” approach in construing Section 287.190.3 is not persuasive. Their cited cases analyze the prior statutory framework that called for a liberal construction of the provisions of Chapter 287.

The Court noted that the claimant interpreted the prior decision in Parker to mean that all disabilities which are the direct result of a compensable injury or to be combined to determine if the 50-week threshold is met. However, the claimant’s interpretation was incorrect. It was noted that not only was it at odds with the current statutory framework calling for strict construction, but it was also contrary to the holding in Parker which required that each of the pre-existing disabilities must qualify on its own under Section 287.220.3(2)(a) to be considered.

Therefore, the Court concluded that the Commission’s findings were supported by substantial and competent evidence. The claimant failed to establish a qualifying pre-existing disability which, with his primary injury would entitle him to PTD benefits from the SIF pursuant to Section 287.220.3. Accordingly, the Commission’s decision was affirmed.

To Establish a Claim Against the SIF, The Claimant Must Meet the Burden of Persuasion That a New or Second Injury Occurred

Danner v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921

FACTS: The claimant testified at a Hearing that on June 4, 2014, as she lifted a patient’s legs to place a wedge underneath them, she felt a pop and immediate pain in her low back. The following day, she sought treatment.

On July 17, 2014, the claimant claimed that she injured her low back again while lifting a patient from the floor to a mattress on the floor. At a Hearing, the claimant testified she felt worsened pain in the “same spot” and that she “aggravated the back” injury from June 4, 2014. She finished her shift and then returned to Dr. Boyett with whom she was treating for her June 4, 2014 injury.

The ALJ found the claimant to be a credible witness as her demeanor was clear and direct and her testimony was consistent with the exhibits in evidence. The Judge also found that claimant is unemployable on the open labor market and was thus permanently and totally disabled.

However, the Judge noted that Dr. Hopkins stated that based on the short period of time between her two injuries with the injuries in the same portion of her body, the doctor believed that her low back injury on July 17, 2014 was a continuation of her first injury just over one month prior. This was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the July 17, 2014 incident was an aggravation or continuation of the June 4, 2014 injury.

Considering all of the medical evidence, along with claimant’s testimony, the Judge found that based upon the overwhelming majority of the expert medical evidence and claimant’s credible testimony, that the claimant failed to meet her burden that she suffered a new and distinct work injury on July 17, 2014. The Court found that the June 4, 2014 work injury in isolation was the prevailing factor causing claimant’s medical condition and disability.

Since the Judge found that the claimant did not suffer a new or distinct work injury on July 17, 2014 but that the claimant’s injuries and disability were the result of the work injury on June 4, 2014, the Court concluded that there was no work injury subsequent to June 4, 2014 that combined with a pre-existing disability to result in the claimant’s permanent total disability. Therefore, the Judge determined that the claimant had failed to meet her burden that the SIF is liable to her for PTD benefits.

HOLDING: The Commission affirmed the Award and decision of the ALJ. The Commission noted the Supreme Court of Missouri’s recent decision in March v. Treasurer of the State of Missouri-Custodian of Second Injury Fund (2022). In that case, the Commission denied a post 2014 SIF claim for PTD where the SIF produced no evidence and the Commission did not discredit the claimant’s experts. The Court held the fact that the SIF did not offer contradicting evidence and did not cross-examine the claimant did not establish a “presumptively valid claim”.

The Commission emphasized that to establish a claim, the claimant must not only meet the burden of production but also the burden of persuasion. In this matter, the Commission found that the claimant’s evidence, though not controverted, is insufficient to support her claim. Therefore the decision and Award of the ALJ was affirmed.

Settlement of Civil Suit Against Uninsured Employer Barred Recovery From Second Injury Fund for Medical Expenses Under Workers’ Compensation Statute

Hood v. Michael Menech, Vandalia Area Historical Society and Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. ED110331 (Mo. App. 2022)

FACTS: On August 20, 2012, claimant was injured when he was working as a carpenter on property owned by the Vandalia Area Historical Society. He was hired by Michael Menech. At the first Hearing, the parties stipulated that neither Vandalia nor Menech carried workers’ compensation insurance. The Judge issued his initial decision finding that Menech was the claimant’s employer, the claimant had incurred $51,183.42 in past medical expenses due to the work-related injury, and the Second Injury Fund was required to reimburse the claimant for past medical expenses and pay future medical benefits pursuant to Section 287.220.

On appeal, the Commission issued a Temporary Award ordering the SIF to pay only $23,226.27 in past medical expenses and to provide claimant with future medical care necessary to cure and relieve the effects of the injury.  The Commission noted that the Award was only temporary or partial until further final Award was made.

The claimant also filed a civil action against Vandalia and later amended his Petition to add Michael Menech and additional co-employees as Defendants. Subsequently, the claimant settled his civil suit against all Defendants for $53,000.00. With respect to claimant’s medical bills, the settlement agreement stated that all medical bills must be paid by the claimant from the settlement amount of $53,000.00.

On December 9, 2020, the parties appeared for a final Hearing before the Judge on the claimant’s workers’ compensation claim. The Judge found that, under the Election of Remedies Doctrine, the claimant was not entitled to workers’ compensation benefits from Menech, Vandalia, or the SIF. Further, the Judge ordered claimant to reimburse the SIF for the $23,226.67 it paid to claimant pursuant to the Temporary Award.

On Appeal, the Commission affirmed the ALJ’s decision stating that the Election of Remedies Doctrine applies and it barred the claimant from recovering the payment of his medical bills by the SIF due to his settlement of the civil suit.

HOLDING: The Court of Appeals affirmed the Commission's decision denying claimant’s workers’ compensation benefits and ordering him to reimburse the SIF $23,226.27.

The Court noted the general statement of the law in Brookman v. Henry Transportation that if an employer is not insured and does not qualify as a self-insurer, an employee who is injured in the course of employment can elect to file a workers’ compensation claim or can bring suit against the employer in Circuit Court, but not to both.

In this matter, the Court noted, that although claimant’s civil action included additional parties as co-defendants and its workers’ compensation claim included the SIF, because Menech was party to both the workers’ compensation claim and the civil action, the Election of Remedies Doctrine governs. The claimant’s civil action and settlement with Menech barred the claimant from receiving benefits under the workers’ compensation statute under the Election of Remedies Doctrine. The claimant elected his remedy when he accepted the $53,000.00 settlement payment in his civil action against Menech and Vandalia.

Claimant is Not a Statutory Employee Unless Performing Activities Within the Usual Business of Alleged Employer

Brooks v. William J. Laurie and Crown Center Farms, Inc., Case No. WD85031 (Mo. App. 2022)

FACTS: The claimant suffered an injury while he was employed as a superintendent for Little Dixie Construction while cutting down trees at Big Buck Resort. He was injured when a tree was cut by Defendant Laurie and fell down on him. Laurie was a shareholder and member of Big Buck Resort. Laurie also co-owned Crown Center Farms which employed Tim Cullen to assist with maintaining and caring for Crown Center Farms and various properties owned by Laurie including helping to manage Laurie’s hunting area at Big Buck.

On the day of the incident, Laurie contacted the claimant and requested his assistance at Big Buck. On that day, the people working at Big Buck included the claimant, Laurie, Cullen, and two additional laborers. Following the incident, the claimant filed a workers’ compensation claim against Little Dixie Construction for the injuries sustained while working at Big Buck. The claimant also filed a civil suit against Laurie, Crown Center Farms, and Big Buck.

The Court dismissed the lawsuit based on a Summary Judgment as it found Crown Center Farms was a statutory employer of claimant, so as to trigger the exclusive remedy provision of the workers’ compensation law. It also found Laurie was an employee of Crown Center Farms so as to shield Laurie from liability under the workers’ compensation law. The claimant appealed.

HOLDING: The Appellate Court reversed the trial Court’s judgment and reinstated the lawsuit. The Court stated that pursuant to statute for a person to be a statutory employer, the work done under the contract on the premises must be “an operation of the usual business which he there carries on…”. It noted that in this case there was a genuine issue of material fact regarding whether the claimant was injured while doing work in the usual course of Crown Center Farms’ business in order to qualify as a statutory employee. Specifically, the cutting of trees at Big Buck was rarely performed and Big Buck usually employed a professional logger to clear the property.

The Court did not find that the claimant was performing work that was within the usual business of Crown Center Farms. Also, Laurie was not entitled to the protection of the workers’ compensation law under immunity as an employee of Crown Center Farms as Crown Center Farms was not the claimant’s statutory employer.

Simon Law Group, P.C.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2022 – September 2022

Lamy v. Stahl Specialty Co., Case No. WD85163 (Mo. App. 2022)

FACTS:  The claimant filed a claim for an injury on August 26, 2016, to his left upper extremity. The employer referred the claimant to Dr. McNamara for left shoulder pain and numbness and tingling in his left hand. Dr. McNamara performed left shoulder surgery on October 11, 2016. In his notes from the February 13, 2017, appointment, Dr. McNamara indicated the claimant had left carpal tunnel syndrome that might require further treatment. The claimant’s attorney had the claimant examined by Dr. Stuckmeyer on November 9, 2017, who opined that the claimant had left carpal tunnel syndrome related to his work and might require further surgery. Thereafter, the claimant settled his August 2016 claim for 12.5% of the left shoulder. He initialed the Stipulation that he had full awareness of the consequence of the settlement and the ALJ approved the settlement on May 2, 2018.

The claimant filed a second claim on June 26, 2018, alleging injury to the left wrist on February 13, 2017, the date on which Dr. McNamara advised that the claimant still suffered from left carpal tunnel and required treatment. In his report dated August 19, 2019, he opined that the claimant’s left-hand complaints were related to his repetitive work that had been the subject of the August 2016 claim.

HOLDING:  The ALJ denied claimant’s February 2017 claim noting that the prevailing factor for claimant’s left carpal tunnel was the same prevailing factor that gave rise to the claimant’s 2016 claim which the claimant voluntarily settled, despite knowing that both physicians had diagnosed him with left carpal tunnel that might require surgery. The Commission affirmed the Judge’s decision and the claimant appealed.

The Court affirmed the decision of the Commission. The Court stated that the Commission did not commit legal error, when it found based on uncontested facts, that pursuant to Section 287.390, that the compromise settlement exhausted the Commission’s jurisdiction to reopen the August 2016 claim to consider the February 2017 claim. There was no showing of fraud or undue influence. The claimant knew he had a repetitive injury to his left wrist, a portion of his left upper extremity, when he entered the settlement for the August 2016 claim for repetitive injury to the left upper extremity.

Claimant Must Present Sufficient Evidence to Establish that a Work-Related Exposure is The Prevailing Factor Causing Occupational Disease

Hanes v. Department of Corrections, Missouri Office of Administration, CARO, and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-124885

FACTS: At Hearing, the claimant testified that his for job from 1991 through 1998, he was in charge of taking inmates for medical procedures and that x-rays were involved 2-3 times per week from 1993 to 1998 but provided no additional detail. The claimant testified he was not provided protective gear in contrast to the testimony of Dr. Kibby who testified that the claimant told him he was protected. The Judge found the claimant did not establish the nature of the exposure and duration of the exposure, the frequency of the exposure, and the radiation levels which he may have been subjected. Dr. Kibby did not connect the claimant’s condition back to his job duties.

The Judge found the testimony of Dr. Parmet lacking in specificity and his ultimate opinion that the claimant had no other known cause of potential conditions which would lead to thyroid cancer did not establish that his job was the prevailing factor in causing his cancer.

HOLDING: The Judge found that pursuant to Section 287.067, the claimant failed to meet his burden of proof that he was exposed to an occupational disease which would require a demonstration of greater risk of exposure to the disease at work than other persons have in ordinary life, and also to show that the exposure was the prevailing factor in causing any illness. On appeal, the Commission affirmed the Award of the ALJ.

Claimant’s Bilateral Carpal Tunnel Syndrome Resulted from Longstanding Occupational Exposure from First Employer Despite Limited Exposure with Concurrent Second Employer

Porter v. St. Louis Post-Dispatch LLC/Lee Enterprise and CCL Label, Inc./CCL Industries Corp., Injury No. 17-013765

FACTS: On March 6, 2017, the claimant was employed by both the Post-Dispatch and CCL. The claimant began working for the Post-Dispatch in 2001. She worked at a machine that placed inserts in the newspapers. When the claimant first started working at the Post-Dispatch, she worked 40 hours or more a week. However, when she started working at LLC in 2012, she reduced her hours at the Post-Dispatch. The claimant worked over 40 hours a week at CCL. She would work 10 hours or overtime every 2 weeks. At CCL, the claimant inspected labels for medicine bottles and would only pick up a few labels at a time. She was also diagnosed with diabetes in 2016.

The claimant was working two jobs at the time she developed carpal tunnel symptoms, however, her job duties at the Post-Dispatch were much more strenuous and fast paced than those at CCL. The Post-Dispatch focused on the fact that the claimant was working part-time when she developed carpal tunnel symptoms. However, Dr. Schlafly testified that the claimant’s cumulated exposures for developing carpal tunnel syndrome increased while working at the Post-Dispatch as time progressed, even after her working hours reduced, because she continued to be exposed to the risk unabated.

The ALJ concluded that the claimant’s job duties at the Post-Dispatch were the prevailing factor in the development of bilateral carpal tunnel syndrome and therefore they were responsible for treatment and CCL did not have any liability.

HOLDING: The Temporary Award of the ALJ was appealed to the Commission. The Commission noted that Commission Rule 8CSR02-3.010 specifies when an Application to Review a temporary or partial Award may be filed. The rule allows a party who feels aggrieved by the issuance of a temporary or partial Award by an ALJ to petition the Commission to review the evidence upon the grounds that the applicant is not liable for payment of any compensation.

With respect to the Judge’s finding that “claimant’s diabetes was under control” was without support in the medical evidence, the Commission noted that Dr. Schlafly’s deposition testimony indicated that the employee’s diabetes was “well controlled as of the blood tests of February 10, 2017.”

Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission found that the Award of the ALJ was supported by competent and substantial evidence.

Evidence Must Persuasively Establish that Work Related Injuries Combine with Pre-existing Conditions to Render Claimant PTD

March v. Treasurer of the State of Missouri/Custodian of The Second Injury Fund, Case No. SC99381 (Mo. App. 2022)

FACTS: As a result of the primary 2015 occupational disease claim, the claimant underwent a repair a tear to his left rotator cuff, an injury to his right finger, and carpal tunnel. The claimant missed work due to these injuries but returned to work without restrictions. Before the claimant suffered the primary injury, he endured other health issues, including: morbid obesity, thyroid issues, hypertension, TIA, atrial fibrillation, asthma, a previous left rotator cuff tear, and a left leg laceration. The prior left leg laceration had created blood flow issues. The preexisting medical condition to the bilateral lower extremity included symptoms of edema and pain radiating down both legs into the ankles, secondary to morbid obesity and venous varicosities associated with obesity.

At the hearing, the claimant explained that after treating for his upper extremities, he was able to return to work. However, he stated that his leg conditions worsened due to standing at work. Both of the testifying experts, Dr. Hopkins and Dr. Waldschmidt agreed that standing for long hours during the course of employment aggravated and necessitated the claimant’s need for ablation and aggravated his preexisting venous condition in his lower extremities.

The claimant also offered at the Hearing the vocational report of Ms. Skahan who opined that the claimant was vocationally disabled due to the work injuries to his upper extremities in April 2015 and the progressive disabilities from his venous condition and aggravation from his work activities to the bilateral lower extremities around the same time frame of April 2015.

The ALJ determined that the greater weight of the testimony led her to conclude that the claimant had not met his burden of proof to establish Fund liability because the claimant’s lower extremity conditions which preexisted the work injury, were actively being treated and significantly deteriorated after the work-related accident. The Judge further found that there was no aggravation or acceleration of the work-related accident to combine to make the claimant permanently and totally disabled.

The Commission agreed that the Fund was not liable for PTD benefits because the claimant failed to meet his burden of persuasion. They were not persuaded that the combination of the claimant’s preexisting injuries and his primary injury resulted in the claimant’s PTD.

HOLDING: The claimant appealed, and the Court affirmed the Commission’s decision. The Court held the Commission appropriately found it was not persuaded that the combination of his preexisting disability and his primary injuries entitled him to PTD benefits because it was “equally likely” that his preexisting disabilities alone rendered him permanently and totally disabled.

No Fund Liability for PTD When Claimant Failed to Establish a New, Second Work Injury Combined with First Work Injury Alone Rendering Claimant PTD

Danner v. Missouri Department of Public Safety (settled), Missouri Office of Administration Caro (settled) and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921

FACTS: The claimant and employer settled the claims for both the work injury of 6/4/2014 and the alleged work injury of 7/17/14 both involving the low back. Dr. Hopkins stated that based on the short period of time between the two injuries he believed that her low back injury on July 17, 2014, was a continuation of her first injury, just over one month prior. This statement was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the 7/17/2014 incident was an aggravation or continuation of the 6/4/14 injury.

Therefore, at Hearing, the Judge stated that based upon the overwhelming majority of the expert’s medical evidence, the claimant failed to meet her burden that she suffered a new and distinct work injury on 7/17/14. Therefore, the Judge found that the 6/4/14 work injury in isolation was the prevailing factor in causing the claimant’s medical condition and disability.

The ALJ concluded that there was no work injury after 6/4/2014 that combined with a preexisting disability to result in the claimant’s permanent total disability. Therefore, the ALJ found that the claimant had failed to meet her burden that the Fund was liable for her PTD benefits.

HOLDING: On appeal, the Commission affirmed the decision of the ALJ. They noted that the Judge awarded compensation for the June 4, 2014 work injury. They also agreed with the Judge’s finding that the testimony of the employee and her experts, although unimpeached and found credible, failed to persuade the ALJ that the employee’s July 17, 2014 work event constituted a new and distinct injury separate from her prior work-related lifting injury of June 4, 2014. The Judge did not violate Section 287.800.2 by failing to weigh the evidence impartially or unfairly giving the benefit of the doubt to the Fund when it was found that the evidence the employee produced was insufficient to establish the elements of her claim.

The Commission relied on the recently decided case of March, (as discussed above) that stated that in order to establish a claim, the employee must not only meet her burden of production, but also the burden of persuasion. It noted that in March, the Court held that the fact that the Fund did not offer contradicting evidence and did not cross examine the employee, did not establish a presumptively valid claim and denied a post 2014 Fund claim for PTD.

Treasurer of the State of Missouri, as Custodian of The Second Injury Fund v. Van Horn, Case No. SD37311 (Mo. App. 2022)

FACTS: In January 2011, the claimant filed an amended Claim for Compensation alleging that he was injured in an “accident” on “11/18/2010” while “in the scope and course of employment” with the employer. At the time of the alleged injury, the employer did not have workers’ compensation insurance. Notice was sent to the employer’s last known address via certified mail that a final hearing was scheduled. The employer did not appear at the hearing.

The ALJ entered a final Award and found the claimant was injured while in the employment of the employer and that the employer was liable for all medical care and expenses resulting from the injury, totaling $34,345.00. Because the employer failed to maintain workers’ compensation insurance as required, the ALJ determined that the Fund was responsible for those expenses. The Judge also stated that the Fund “shall be entitled to reimbursement against the employer for all medical expenses incurred, and as is allowed by law”.

Thereafter, the Fund filed an “Application for Judgement on Certified Award from the Division” in Circuit Court, seeking reimbursement of the $34,345.00 from the employer pursuant to Section 287.220.5 and 287.500. Ten days later, counsel for the employer entered his appearance. On June 26, 2020, the reimbursement action was tried in the Circuit Court and a judgement was entered that same day in favor of the Fund against the employer’s business. On June 29, 2020, the Fund filed a Motion to Amend the Judgement to name the employer individually rather than his business because the Final Award found the employer liable as an individual. On August 30, 2020, the Court granted the Fund’s Motion and entered the Amended Judgement for the Fund and against the employer as an individual.

On August 10, 2021, nearly a year later, the employer filed his Rule 74.06 (b) Motion to Set Aside the Amended Judgement. After taking the matter under advisement, the Circuit Court entered a Judgement denying the Employer’s Rule 74.06 (b) Motion. The employer appealed.

HOLDING:  The employer asked the Court to set aside the Amended Judgement against him to reimburse the Fund in the amount of $34,345.00. The Court affirmed the Judgement of the Circuit Court. It found that the employer’s argument that the Division lacked subject matter jurisdiction or statutory authority was misdirected. The employer’s Rule 74.06 (b) Motion sought to set aside the Circuit Court’s Amended Judgement should have presented the argument regarding subject matter jurisdiction to the Circuit Court in the reimbursement action. The employer also argued that the Division denied the employer due process when it entered liability against him when the Division proceeded with the hearing without the Fund filing a pleading which notified the employer that the Fund held and pursued such a claim against the employer. However, the Court stated that after the initial judgement granting reimbursement was filed, notice of the Fund’s Motion to Amend the Judgement was sent to the employer’s counsel and again, the employer failed to raise a constitutional challenge at that time. After the Amended Judgement was entered, the employer did not appeal. Instead, the employer waited nearly a year to raise the due process challenge for the first time in his Rule 74.06 (b) Motion to Set Aside the Amended Judgement.

Employer Cannot Claim Sovereign Immunity as School District Under Work Comp Law   

Poke v. Independence School District, Case No. SC99384 (Mo. App. 2022)

FACTS: The claimant was employed as a custodian by the school district. He sustained an injury at work. He independently sought medical treatment and was diagnosed with a hernia. He initiated a workers’ compensation claim against his employer, the school district, who directed him to an authorized treatment provider who diagnosed inguinal tenderness. As requested, the claimant provided the authorized treatment provider with a urine sample. Thereafter, the employer discharged him because his urine sample tested positive for marijuana, violating the school district’s drug policy.

The claimant filed suit under Section 287.780 alleging that the employer’s stated basis for terminating his employment was pretextual and that he was actually discharged in retaliation for exercising his workers’ compensation rights. Subsequently, the school district filed a Motion for Summary Judgement, arguing it was entitled to sovereign immunity from the claimant’s workers’ compensation retaliation claim. The Circuit Court sustained the school district’s motion.

HOLDING: The claimant argued that because the legislature included the state and political subdivisions, such as school district, as employers for the purposes of the Workers’ Compensation Law, workers’ compensation retaliation claims are authorized against the school district. The Appellate Court stated that the issue before it was not whether the claimant had a valid claim for retaliation. Instead, they said the only issue is whether such General Assembly expressly waived whatever immunity the school district might have had, the judgement of the Circuit Court was reversed and the case was remanded for further proceedings.

In explaining its decision, the Court relied on the decision in Bachtel v. Miller County Nursing Home Dist., 110 SW 3d 799 (Mo. Banc 2003). The legislature (1) created a private right of action that can be brought against any employer who retaliates against an employee for exercising his or her workers’ compensation rights per Section 287.780; and (2) specifically included governmental entities in the workers’ compensation law’s definition of “Employer” under Section 287.030. The Court concluded that consequently, considered together, Sections 287.780 and 287.030 reflect legislative intent to waive the school district’s sovereign immunity for the claimant’s workers’ compensation retaliation claim.

Must Consider Number of Hours Needed to Qualify as Full Time Employee for Specific Employer When Calculating AWW

Kurbursky v. Independent In-Home Services LLC. and Treasurer of The State of Missouri – Custodian of Second Injury Fund, Case Nos. SD37103 & SD37104 Consolidated (Mo. App. 2022)

FACTS: The claimant was employed by the employer as a home healthcare worker. On August 15, 2012, the claimant was visiting a home of one of her patients when she hit her head on a canoe that was on top of a car in the patient’s driveway, causing her to fall on her back. At the hearing, the ALJ awarded the claimant PPD benefits and additional TTD benefits but determined the claimant had not met her burden of proof to obtain benefits for past or future medical care, Fund liability or PTD. The ALJ found Dr. Poetz’s testimony that the claimant was unemployable in the open labor market not credible and his disability ratings were substantially inflated, and that Mr. England’s vocational opinion was less than credible and was not persuasive because his opinion was based on substantial speculation regarding the effect of sleep deprivation and the impact daytime drowsiness would have on the claimant’s employment prospects.

The Commission affirmed the ALJ’s findings that the primary injury was compensable and on the issues of past and future medical care, nature and extent of PPD and the MMI date. The Commission modified the Award regarding the compensation rate, TTD benefits, and SIF liability. The Commission found Dr. Poetz’s PPD ratings and his opinions on the relationship between the claimant’s prior and preexisting injuries were persuasive, but that Dr. Poetz’s opinion on PTD was not persuasive. However, the Commission applied a 20% multiplicity factor to the ALJ’s PPD findings so that the claimant was entitled to enhanced PPD benefits from the Fund.

HOLDING: The Claimant appealed the Commission’s decision denying PTD benefits and challenged the Commission’s application of the law for calculating the average weekly wage for PPD benefits.

The Court noted that challenges to an Award, where the claimant failed to meet his or her burden of proof, are rarely successful on appeal. They noted that in this case, even assuming that the claimant produced competent and substantial evidence, the claimant still bore the burden of convincing the Commission to view the evidence in her favor. She failed to meet this burden. The Commission’s denial of PTD benefits, past medical care, and future medical care was affirmed.

Regarding the issue of the average weekly wage, the Court, however, agreed that the Commission incorrectly interpreted Section 287.250.3 by adding words to the statute and as a result, the Commission did not calculate the claimant’s average weekly wage based on the number of hours per week utilized by the employer to classify an employee as a full time or regular employee. Because the Commission failed to make actual findings on the average weekly wage of full time or regular employee engaged by this employer to perform work of the same or similar nature, and the number of hours required by this employer to classify an employee as a full time or regular employee, the Court reversed and remanded the case on this issue back to the Commission.

The Court affirmed the Commission’s final Award and all respects except for the calculation of PPD benefits. They reversed and remanded the case to the Commission to make actual findings on the correct average weekly wage to correctly calculate its Award.

Simon Law Group, P.C.

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314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2022 – June 2022

Knee Injury Sustained While Turning Not Compensable as Equally Exposed to Risk in Normal Non-employment Life

Overstreet v. Tamko Building Products, Inc. and Ace American Insurance Company, Case No. SD37171 (Mo. App. 2022)

FACTS:  The claimant worked as an asphalt plant operator for the employer. On the date of injury, he saw a truck arrive and began walking on the asphalt path to the load station when he realized he had forgotten his card to access the load station. He planted his foot to turn right, turned around to retrieve his card and heard a “pop” and felt tearing in his left knee. When he was seen at the hospital, he reported that he was “in a hurry and was walking very fast when he suddenly switched directions”. In both his deposition and hearing testimony, he stated that the area where he was walking on the date of injury was not out of the ordinary, not wet, not slick and the area was lit. He also claimed that he was walking “downhill” or “across a decline” or a “slope” when his knee popped. However, he did not indicate that the slope was a contributing factor to his knee popping. He also noted that although there were cracks in the area where he was walking, he could not be sure if he stepped on a crack. The claimant’s supervisor also testified that there were no other employees that had issues in this area due to any issues with the ground. Dr. Koprivica testified on behalf of the claimant and opined that the incident was the prevailing factor in causing his condition.

The ALJ found that the claimant did not sustain a compensable injury arising out of and in the course and scope of his employment because the risk source, walking on asphalt and changing directions was a risk to which the claimant was equally exposed to outside of his employment. The claimant appealed and the Commission affirmed. The claimant again appealed.

HOLDING: The Court noted that it is not enough that a claimant’s injury occurs at work or even while engaged in a work-related activity. To show causal connection between the injury and work, the risk involved must be one to which the worker would not have been equally exposed in his non-employment life. The Court found the claimant failed to meet his burden as he acknowledged that in his normal non-employment life, he often walks and changes directions. Also, the asphalt lot was not dissimilar from numerous other asphalt lots in his community which had similar cracks, unevenness and slopes. Therefore, the Commission’s denial of benefits was affirmed.

Injury Compensable as Claimant Not Exposed to Twisting in Tight Space and  Working at Fast Pace Outside Of Work in Non-employment Life

Durr v. Clarks Mountain Nursing Center, Americare Systems, Inc. and Safety National Casualty Company, Case No. SD37212 (Mo. App. 2022)

FACTS: The claimant worked as a CNA for the employer. On March 5, 2015, she was performing one of her job duties which included freshening each resident’s pitcher with water and ice. She took the pitcher from the resident’s room out to the cart which remained in the hallway for sanitary purposes and brought the pitcher back into the resident. There was testimony this was performed at a “very quick pace” as there was only one water/ice cart provided by the employer and this was to be shared with the other three §s.

In order to access this particular resident’s pitcher on the bedside table, she had to step sideways through a narrow space between the bed and the wall and then to exit the space she had to pivot to her right to get out of the room. On her date of injury, the top of her left leg went with her body and the bottom of her left leg stuck resulting in a twisting motion of the knee. Ultimately the claimant underwent surgery on her own.

The ALJ concluded that the claimant’s injury was compensable as the injury to her left knee did not come from a hazard or risk unrelated to her employment to which she would have been equally exposed to in her normal non-employment life. The ALJ found that passing out ice required the claimant to move about in a tight, narrow space between the resident’s bed and the wall to deliver fresh water and ice. Furthermore, the claimant was wearing the recommended non-skid shoes while navigating this tight space and that non-skid shoe stuck to the floor causing a twisting injury to the left knee.

The Commission reversed the decision of the ALJ. It found that testimony showed there was no time limit for passing out ice and the claimant was not required to wear closed-toed, non-skid shoes. The Commission noted she would be equally exposed to twisting in her normal non-employment life. The claimant appealed.

HOLDING: The Court of Appeals reversed the decision of the Commission and noted that the claimant’s injury arose out of the particularized working conditions and work requirements of the job. It noted for this particular resident, the employer placed the bedside table in the one-foot gap between the wall and the bed so that his wheelchair would not bump into the bedside table. Also, it was the employer’s preference that the claimant wear closed-toed non-skid shoes and it was part of the claimant’s job duties to fill water pitchers in an expedient fashion which required her to navigate the one-foot gap in a dark room and to pivot between facing forward and backward within that confined area. In light of this, it was determined that the claimant was not equally exposed to this same risk in her normal non-employment life and the decision of the Commission was reversed and remanded for an entry of an Award consistent with the Award of the ALJ.

Sitting in Parked Vehicle on Public Street is Noncompensable as a Risk Source of Injury for Which the Public is Equally Exposed

Flemons v. Land of Oz Academy and FirstComp Insurance Company, Injury No. 17-003266

FACTS: Claimant and his wife owned a child care center, Land of Oz, the employer. The claimant and his wife would eat lunch while sitting in employer’s vehicle parked on Kingshighway while working for employer. While eating lunch, they discussed business activities. Although there is a staff lounge inside employer’s building, they prefer to eat in the truck for privacy and avoid phone calls for employee questions during the lunch hour. During lunch, they were rear ended by a vehicle traveling on Kingshighway and sustained injury. The ALJ found that claimant’s injury was not in the course and scope of employment.

HOLDING: The Commission affirmed the Judge’s denial of compensation. The risk source of cliamant’s injury was not work related or related to a risk to which the employee was not equally exposed. The claimant was not placed in an unsafe location due to his employment but chose to eat lunch in the parking lane of Kingshighway rather than the available conference room and office space inside employer’s location. The risk source is the immediate cause of the injury. In this case, discussing business was not the risk source causing the injury. Instead, the risk source was being lcoated in the parking lane of a busy thorogouhfare. Parking on Kingshighway Boulevard was a risk freely available to the public.

Claimant Must Show a Causal Link Between Work Activities and New Alleged Injury After Prior Settlement For Fusion Surgery

Toska v. American Pulverizer, Injury No. 17-075220

FACTS: Claimant started working for employer in 2006. In March 2009, claimant sustained a work injury and had severe pain in his low back and left leg. In September 2009, the claimant underwent surgery at L4-5 by Dr. deGrange but continued to have pain. In August 2011, he underwent a fusion at L4-5 by Dr. Kitchens. The fusion helped claimant’s pain in his back and he no longer had pain in his leg. The 2009 injury settled for 30% of the body.

When claimant returned to work following the fusion, he had pain “all of the time” but was able to fully perform his job. On cross-examination, claimant admitted he was still having pain after his August 2011 surgery, but did not tell anyone he needed to see a doctor. On Septmeber 9, 2017, the claimant went to the ER and reported that over the last two months, his low back pain redeveloped and was worse everyday. Although he did not recall an injury, he reported his work activities exacerbated his back pain. He saw Dr. Kitchens on September 10, 2017 and underwent surgery the next day. Dr. Kitchens performed a revision of the hardware at L4-5 and a L3-4 decompressive laminectomy, discectomy and fusion.

The claimant’s expert, Dr. Volarich testified that the claimant had been able to perform all of his usual duties at work following his 2011 surgery until September 8, 2017. He opined that the heavy lifting the claimant performed for the employer was the prevailing factor causing his severe increase in back and leg pain. He testified that heavy lifting, moving in awkward positions and twisting would lead to a herniation above the level of the previous fusion. He found 35% PPD for the prior 2009 injury and additional 35% PPD to the back for the 2017 injury and concluded claimant was permanently and totally disabled as a result of his 2009 and 2017 back injuries.

On cross-examination, Dr. Volarich admitted the claimant did not report an accident occuring on September 8, 2017 but did report an accident in July 2017. He admitted it was not unusual for adjacent levels to break down after a spinal fusion. He also conceeded a disc herniation can occur spontaneously and more likely in someone with preexisting degernative disc disease.

Dr. Kitchen testified for the employer. He said the claimant was returned to work with no restrictions after his fusion surgery for the 2009 work injury. He then saw the claimant on Septmeber 10, 2017, after the ER visit. The claimant gave a history of pain for a couple of months that had worsened over a couple of days before he went to the ER. The claimant did not give an indication to Dr. Kitchen that his back pain was related to work activities.

Dr. Kitchens further testified the claimant sustained a large disc herniation at L3-4 and given the size, he would not expect a person to be able to perform heavy job duties. He stated that the claimant would not have been able to work a full shift on Friday, September 8, 2017 given the amount of pain he was in on September 10, 2017.

Dr. Kitchens opined that the actual herniation is an acute event. A disc herniation has to be linked in time to a particular activity in order to be medically casually linked to that activity. He opined the claimant had a spontaneous herniation due to age related degeneration.

HOLDING: The ALJ found that claimant failed to prove by medical evidence that there was a causal link between his new back injury and some distinct feature of his job duties for the employer and therefore, the claim was denied. The Commission affirmed the decision.

Claimant Must Prove Work is More Likely Than Not the Prevailing Factor of Carpal Tunnel and Not One of Several Factors Such as Age and Prediabetes

Nevois v. Meramac Industries, Injury No. 19-078979

FACTS: The claimant was a 56 year old factory worker who developed carpal tunnel syndrome. His first position for the employer was as a packer for six years. Then, the claimant worked for 2-3 months as a taper. In July 2019, he began a machine operator job for employer and worked 30 days in late July and August.

The claimant had preexisting medical conditions of obesity (BMI 35-39), smoking addiction and prediabetes. The claimant did not experience any hand complaints while working as a packer or taper but reported complaints after 2-3 weeks as a machine operator.

Employer’s medical expert testified that 2 weeks as a machine operator was not long enough exposure to cause carpal tunnel, even if the clamps on the machine required significant force to close. He noted that there is a correlation between BMI’s over 30 and the development of carpal tunnel syndrome. The doctor opined that the claimant’s work as a machine operator did not accelerate or cause the carpal tunnel syndrome to manifest. He also opined that older age was a causative factor.

The claimant’s medical expert testified that the claimant’s repetitive work with his hands for the employer, in particualr, the machine operater position, which required repetitive and forceful closing of clamps, was the prevailing factor causing the carpal tunnel syndrome and need for treatment. The doctor did not have an opinion as to whether the claimant’s obesity was a contributing factor, but stated it was not the prevailing factor causing the carpal tunnel syndrome. However, he was uncertain whether prediabetes could cause the condition.

HOLDING: The Judge denied the claim. He noted that the burden of proof for compensation is on the claimant and he did not prove more likely than not that work was the prevailing factor causing his medical condition and disability. The experts in the case were evenly divided and neither was overwhelming. Based on the evidence, the judge concluded that the cause of the claimant’s carpal tunnel syndrome was multifactorial, including obesity, prediabetes and claimant’s hand intensive job for 30 days and all appear to be substantial factors. The claimant’s work as a machine operator may have been a triggering factor but none of the factors were more important than the other factors. The Commission affirmed the judge’s decision.

The Employer and Insurer on the Day of Last Exposure Prior to the Date of Injury are Liable for the Toxic Exposure; Also, Date of Injury is Date of Diagnosis

French (deceased) v. Bill’s Truck Repair and the Larson Group, Inc. d/b/a MidAmerica Peterbuilt and Bloomington Compensation Insurance Group, Missouri Employer’s Mutual Insurance Company and Standard Fire Insurance Company, Injury No. 14-080361

FACTS: The employee worked as a diesel mechanic at Bill’s from 1989 to 2006. He began working as a diesel mechanic at MidAmerica in July 2006. He last physically worked at MidAmerica on October 1, 2014.

In September 2014, the employee began to experience leg pain. Ultrasounds revealed blood clots in both legs and employee was prescribed medication and special hosiery. On September 30, 2014, the employee returned to the doctor for difficulties with memory and controlling his emotions. On October 1, 2014, after working at MidAmerica for four hours, employee left work and went directly to the hospital and was admitted for a TIA. He suffered a second stroke on October 4, 2014 and on October 7, 2014, a biopsy revealed stage III. B adenocarcinoma of the lung with metastasis. The employee underwent treatment including chemotherapy for his lung cancer and other cancer related conditions. He ultimately passed away on July 24, 2015 of a stroke as a consequence of underlying metastatic lung cancer.

Prior to October 1, 2014, the employee worked full time and had not been diagnosed with lung cancer.

The claimant’s medical expert opined that the claimant’s employment as a diesel mechanic caused his exposure to diesel fumes which led to the development of the lung cancer from which the employee ultimately died. The employers and insurers did not present contrary evidence. The ALJ found that the employer, MidAmerica and their insurer, Standard Fire Insurance Company liable for the medical care, TTD, death benefits and funeral expenses.

HOLDING: The Commission affirmed the ALJ’s decision. Based on the standard set forth in

§287.063.3 RSMO 2005, “the moment it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, is the date of injury in an occupational disease. As such, the date of injury for the employee was October 1, 2014.” The employee was last exposed to diesel fumes that caused his death from lung cancer on October 1, 2014. Therefore, the employer, MidAmerica, is liable for the death of employee. The Workers’ Compensation carrier for MidAmerica as of October 1, 2014, was Standard. Therefore, Standard is the liable carrier.  

A Preexisting Non-Compensable Injury Does Not Qualify as a Preexisting Condition Under the Statute for Fund Liability if it is Unrelated and Does Not Aggravate or Accelerate the Primary Injury

Schebaum v. Treasurer of the State of Missouri / Custodian of the Second Injury Fund, Case No. WD84765 (Mo. App. 2022)

FACTS: The claimant became deaf in both ears as a child. Many years later, he sustained a compensable work injury to his right knee in 2007 and settled with the employer for 45% PPD of the right knee. In January 2014, the claimant sustained a new compensable work injury to his knee and was unable to work thereafter due to the physical nature of the job. He settled with the employer for the 2014 injury for 25% PPD of the left knee but left his claim open against the Second Injury Fund for permanent total disability.

At the Hearing, both medical experts testified by deposition that the claimant was permanently and totally disabled as a result of the prior right knee disability and his hearing loss together in combination with the disability from the primary injury to his left knee. The claimant’s vocational expert did testify at the Hearing that the claimant’s permanent total disability was the result of only his prior right knee injury combined with the primary injury to his left knee. However, the vocational expert’s testimony was inconsistent with his opinions stated in his written reports and his testimony was found not to be credible. The Commission determined that the claimant had not established Fund liability for permanent total disability based on the credible evidence in the record.

HOLDING: The Court affirmed the Commission’s decision. Under §287.220.3, the hearing loss failed to meet the three criteria necessary to establish a permanent total disability claim against the Fund as required by the statute. Although the hearing loss exceeded the 50 week minimum threshold and was not a compensable injury, the preexisting hearing loss was unrelated and did not aggravate or accelerate claimant’s subsequent work related injury (his 2014 left knee injury) and therefore, the Commission properly disregarded the hearing loss when determining whether the claimant established a compensable PTD claim against the Fund.

The Court further agreed that by disregarding the nonqualifying hearing loss, the Commission was correct in finding no credible medical evidence in the record that the prior right knee injury alone, when combined with the current 2014 left knee injury rendered claimant permanently and totally disabled. Therefore, there was no PTD Fund liability.

Only Qualifying Pre-existing Conditions Can be Considered When Determining Fund Liability; Also Life Factors Can be Considered in Determining PTD

Klecka v. Treasurer of Missouri as Custodian of Second Injury Fund, Case No. SC99280 (Mo. App. 2022)

FACTS: In April of 2014, the claimant sustained a compensable injury to his left shoulder and settled with the employer for 35% of the shoulder and 21.5% of the body referable to depression as a result of the work injury. He then filed for perm total disability against the Fund alleging five separate injuries, a traumatic brain injury in 1981, a left knee surgery in 1982, an work related injury to the right thumb in 2005 which settled for 15% disability, a work-related hernia in 2006 which settled for 7.5% of the body and a 2007 work-related right shoulder injury which settled for 35% of the shoulder. Dr. Volarich and Ms. Gonzalez testified on behalf of the claimant who concluded that the claimant was PTD as a result of the work injury and all of his pre-existing medical conditions. The ALJ found that the Fund was responsible for PTD benefits. The Fund appealed arguing that the ALJ errored as the ALJ was limited to considering the claimant’s qualifying pre-existing disabilities of at least 50 weeks and only his right shoulder injury met that threshold. The Commission agreed and reversed the decision of the ALJ finding that the Fund was not responsible for benefits. The claimant appealed.

HOLDING: The Court found that the claimant’s experts’ opinions that he was PTD were not sufficient to show that he was entitled to Fund benefits as their testimony considered non-qualifying pre-existing disabilities in their PTD analysis. The Court noted that there was no evidence that the claimant’s primary injury combined with his one qualifying pre-existing disability resulted in PTD. However, the Court did note that the statute does not prohibit the consideration of other “life factors”, including but not limited to those discussed by the claimant including age, education, transferable skills and physical appearance. The Court noted that it was not clear from the record as to whether the Commission considered these factors but did note that it is proper to do so under the statute. Therefore, the Commission’s decision denying benefits from the Fund was affirmed.

Under Strict Construction, No Temporary Benefits Are Payable After Termination for Positive Drug Test After Primary Injury; Also Work Accident Must Cause Mental Injury to be Compensable

Crowley v. Clarcor/General Electric, Injury No. 14-101480

FACTS: The claimant filed a claim for alleged mental injury and physical injury to her hands and wrist due to carpal tunnel syndrome from repetitive trauma. After reporting in October 2014 that she thought her carpal tunnel symptoms were work related, she was moved to a light duty position. On November 19, 2014, the claimant reported an injury to her left wrist while pulling tape off a gasket. The employer’s policies included drug testing after acute injuries. The claimant was told to reveal any prescriptions she was taking and to supply pertinent medical records. She did not. The claimant tested positive for both methamphetamines and amphetamines. The results of a second test on the same sample by a different lab were the same. Based on the positive drug test, the claimant was terminated under employer’s drug policy.

In his Temporary Award, the Judge found the claimant was unable to compete in the open labor market since November 21, 2014 and awarded back TTD and additional TTD. He also found that the drug test had no significance because it was almost certainly a “false positive” due to claimant’s use of prescription Bupropion (Wellbutrin) for depression.

At the Final Hearing, there was testimony from a board-certified toxicologist that Bupropion can cause a “false positive” on the initial screening test but not on the subsequent confirmation test. The claimant submitted a report from a non-certified toxicologist, but it failed to explain why the claimant tested positive for both amphetamines and methamphetamines in the subsequent confirmation test.

The employer’s medical expert testified the claimant’s depression developed before 2008 and preceded any carpal tunnel complaints. The claimant’s expert testified that the claimant’s depression “correlated” with her carpal tunnel symptoms and was, therefore, the prevailing factor in causing the depression.

HOLDING: In the final Award, the Judge found the certified toxicologist more persuasive and that the employer had administered their policy relating to drug use appropriately. She found the claimant was terminated for post injury misconduct. She stated that with strict construction, when an employee is terminated for post injury misconduct, under §287.170.4, no temporary disability benefits are payable. As a result, neither TTD nor PTD were payable and the employer was entitled to a credit for the TTD paid in compliance with the Temporary Award.

Since the Judge found that the claimant was terminated based on post injury misconduct, the Final Award was not in accordance with the Temporary Award and the doubling of compensation provision of §287.510 does not apply. The claimant is not entitled to costs and legal fees under §287.560 as the employer did not unreasonably defend the claim leading to the Temporary Award.

Lastly, since the claimant did not allege a specific accident with regard to mental injury, she must prove her mental injury flows from her physical injury/the bilateral carpal tunnel syndrome. Under §287.120.9, if mental injury results from disciplinary action or termination, it is not compensable. The Judge found that the claimant did not meet her burden to prove her depression arose out of employment as a result of her carpal tunnel. The claimant’s expert opinion was not convincing. Just because one condition occurs at the same time as the other, it does not mean the conditions are causative of each other.

The Commission affirmed the ALJ’s Decision noting that the term “post injury misconduct” refers to misconduct after the primary workers’ compensation injury, in this case, the carpal tunnel and not the claimant’s November 19, 2014 acute injury. Therefore, the employer terminated the claimant post injury employment due to post injury misconduct and the claimant is not entitled to TTD due to strict construction of §287.170.4.

Court Undecided if Prior Employee Has Standing Under the Statute for Retaliation Claim for Refusal to Rehire

Lisle v. Meyer Electric Co., Inc., Case No. WD84620 (Mo. App. 2022)

FACTS: On April 27 and May 2, 2018, the employee, Lisle, asked his foreman to fill out an injury report because he was suffering from carpal tunnel. In response to his second request, the forearm told the employee that if he asked for an injury report, the employer would lay him off. On May 2, 2018, the employer’s president learned that the employee wanted to file an injury report and workers’ compensation claim. The next day, he terminated the employee.

On May 14, 2018, the employee filed a workers’ compensation claim and a lawsuit against the employer for termination in retaliation for exercising his rights under the Workers’ Compensation Law in violation of §287.780.

A year later, the employer posted a job opening and the employee expressed interest with the union which provided a referral. In a phone call, the foreman told the employee he would probably hire him back, but later that day, texted him that the employer’s president would not hire him back. The employer acknowledged that pursuant to an agreement with the union, the employee has priority over the other applicant who was hired.

The employee filed a second lawsuit against the employer alleging retaliation for exercising rights under the Workers’ Compensation Law in violation of §287.780. The employer filed a Motion for Summary Judgement which argued that because §287.780 provides a cause of action to “any employee” who has been discharged or discriminated against by his or her employer did not provide a cause of action for the claimant because he was not an employee when the employer refused to rehire him. The Court agreed and entered a Summary Judgement for employer.

HOLDING:  The Court stated that because §287.780 must be strictly construed, it concluded that the statute does not authorize a claim for retaliation based on acts that occur after any employment relationship has ended. However, because of the general interest and importance of the legal issue of first impression presented by this case, the Court did not rule on this appeal and instead, ordered a transfer to the Missouri Supreme Court.

The Court discusses employee’s argument that “employee” as used in §287.780 was not meant to be limited to current employees because there are other places where Chapter 287 uses “employee” for former employees to recover benefits for a workplace injury occurring during an existing employment relationship. Likewise, a claim for retaliatory discrimination under §287.780 also depends inherently on acts that occurred during an employment relationship.

The potential chilling effect of post-employment retaliation on a former employee’s willingness to exercise rights under the workers’ compensation law presents an important policy concern. On the other hand, if §287.780 is constructed to expose an employer to claims of retaliation based on conduct after an employment relationship has ended, the exposure would be perpetual and could have a potential chilling effect on the former employer’s willingness and ability to defend against workers’ compensation claims.

Commission’s Authority to Assess Costs Against a Party is Discretionary

Donnell v. Trans State Airlines and Insurance Co. of The State of Pennsylvania, Case No. ED110126 (Mo. App. 2022)

FACTS: Following the Hearing in August 2011, the ALJ awarded claimant TTD, PTD and future medical treatment. In December 2014, the claimant moved to commute her permanent total disability benefits. The employer objected to the Motion to Commute, requested a hearing and argued a new IME is permitted under §287.210.1. In 2015, the Commission used an Order remanding the case for an Evidentiary Hearing on the Motion. A year later, the claimant moved for the Commission to reconsider their 2015 Order, but the Commission issued a new Order in 2016 declining to reconsider their prior Order.

Five years later, the ALJ conducted the Remand Hearing. The ALJ submitted the findings and the Commission issued its final decision. The Commission denied claimant’s request to commute her PTD benefits, but they did commute claimant’s Award for future medical treatment because they found employer had failed to comply with the Final Award by discontinuing claimant’s coverage for medical treatment when she filed her Motion to Commute. However, the Commission expressly denied an award for costs, including attorney’s fees and other expenses, against either party under §287.560. The claimant appealed.

HOLDING: The Court affirmed the Commission’s decision. While §287.560 provides that the Commission may assess the cost of a proceeding against a party who brought prosecuted or defended the proceedings on unreasonable grounds, neither the statutory language nor caselaw compels such an Award. The Appellate Courts have cautioned the Commission to exercise their discretionary statutory power with great caution and only when the case for cost is clear and the offense egregious. Based on the evidence presented at the Remand Hearing, the Commission concluded that the delay was the result of “unreasonably antagonistic conduct” by both parties, and accordingly did not assess cost against either party. Because the Commission did not exercise its discretion to award costs, the Appellate Court’s standard of review is limited to an abuse of discretion.  The Court held that the Commission did not abuse its discretion but carefully considered the issue.

Medical Provider Not Entitled to Prejudgment Interest Under Statute

Surgery Center Partners, LLC D/B/A Timberlake Surgery v. Mondelez International, Inc. Case No. ED109776 (Mo. App. 2022)

FACTS: Employee suffered a work-related accident and sustained a torn rotator cuff. Employer’s Workers’ Compensation insurance carrier authorized surgery at Timberlake Surgery.

Thereafter, Timberlake filed an Application for Payment of Additional Reimbursement of Medical Fees with the Division of Workers’ Compensation but in the § of the Application asking for “Date Notice of Dispute Received From Employer/Insurer” they entered “TBD”. The Division accepted the Application and held a Hearing. The ALJ found Timberlake’s charges were fair, reasonable and permissible and did not charge more than allowed under §297.140.3 but was not entitled to additional reimbursement. She also concluded Timberlake was not entitled to prejudgment interest and neither party was entitled to attorney’s fees or costs. She also noted that the Division had jurisdiction and absence of the date regarding the notice of the dispute did not deprive the Division of jurisdiction. The Commission affirmed.

HOLDING: The Court dismissed employer’s appeal for their blatant disregard of Rule 84.04 regarding the requirements for appellate briefs. First and foremost, their brief failed to identify the ruling they challenged, state concisely the legal reasons for their claim of reversable error or explain in summary fashion, in the content of the case, the legal reasons supporting their claim of reversable error. Compliance with Rule 84.04 is mandatory.

The Court also dismissed Timberlake’s cross-appeal arguing that the Commission erroneously denied their request for prejudgment interest under Missouri’s general prejudgment interest statute, §408.20. The Commission had denied the prejudgment interest because under the strict construction of §287.800.1, prejudgment interest cannot be awarded without express statutory language. Nothing in §287.140, which governs Medical Fee Disputes, affirmatively provides a right to prejudgment interest. The Court stated that the statute does not allow the Commission to go beyond the language of the applicable statute to infer authority to award prejudgment interest.

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720 Olive Street, Suite 1720, St. Louis, MO 63101

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2022 – March 2022

By Inhaling Fumes Claimant Sustained an Accident But Failed to Prove

Prevailing Factor for PPD

Mueller vs. Peoplease Corporation, Injury No. 15-003742

On the date of the alleged injury in January 2015, the claimant attempted to hook up the vehicle outdoors but it didn’t hook up correctly and he inhaled exhaust fumes and began to feel sick and vomit.  He then moved the truck inside and its exhaust was cracked, leaking and smoking.  The claimant became lightheaded, felt sick, fell, threw up again and lost consciousness. The employer called EMS who took the claimant to the emergency room. He did have prior work injuries as a result of inhalation of carbon monoxide.

The claimant filed a pro se claim alleging a January 13, 2015 work injury to this body due to over-exertion while attempting to hook up a loaded tanker kingpin.  He described the event as a “heart episode” stating that he had erratic heart beats, chest pains and difficulty breathing.  Thereafter, the claimant obtained an attorney who filed an amended claim alleging “While in the course and scope of employment, employee was working in the maintenance pit under a truck with faulty emissions which exposed employee to large amounts of carbon-monoxide poisoning, causing injury.”

The ALJ found that the claimant failed to prove a compensable accident because he never complained of “possible inhalation concerns” on the date of the allege injury, and therefore denied all compensation.

The Commission overruled the ALJ and found that the claimant had sustained an “accident” as defined by the statute.  They said that due to the claimant’s condition, it was understandable that he might not have specifically described the inhalation of fumes to EMT or hospital staff.  Furthermore, the Commission found that the original and amended claims are not in conflict but focus on different aspects of the same occurrence.

However, the Commission did not award PPD because there was no medical evidence that the work incident was the prevailing factor causing any PPD. One of the claimant’s doctors did not declare the work event to be the prevailing factor in claimant’s condition despite suffering an occupational injury that reduced his pulmonary function because the claimant stated he felt essentially well after the incident. The other doctor for the claimant stated that the claimant’s prior exposures in 2011 and 2012 while working for his former employer, along with his January 13, 2015 work event were the prevailing factor in causing the claimant ‘s disability but could not state which proportion of the overall 75% PPD rating was attributable to the 2015 exposure.

The Commission did find that the employer was liable for the EMS and hospital bills on the date of the injury as the employer authorized the same.  However, the Commission did not award additional medical benefits to the claimant, as the subsequent treatment was with the claimant’s own physicians, and not authorized by the employer. 

Claim Denied for Disability From Blood Clots Based on History of Unrelated

Health Problems

Copeland vs. Gencom, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-009289

The ALJ found that an accident occurred on February 15, 2014 when the tractor-trailer that the claimant was driving overturned. However, the ALJ found that the only injury that arose out of and in the course of employment was an injury to the claimant’s pelvis/sacrum.  The ALJ stated that the work accident was not the prevailing factor in causing the claimant’s arterial thrombosis, subsequent ischemia, leg amputation and bowel resection.   Instead, these injuries were idiopathic or personal conditions.  She noted that the claimant was in poor health for about two weeks prior to his accident and had not been taking his diabetes or high blood pressure medication.  The claimant had been seen in the ER for these conditions eight days before his accident, and in the days leading up to his accident, he remained in his truck, resting, eating poorly, and at one point requiring another trucker to bring him food.  His symptoms were present on the day of his accident before the truck overturned.

The ALJ found employer’s expert, Dr. Daniels, an endocrinologist, to be persuasive.  She was not persuaded by Dr. Schuman or Dr. Volarich.  She stated that the claimant was not a good historian and discrepancies existed among the claimant’s trial testimony, deposition testimony and recorded statements.

The Commission affirmed the ALJ’s decision, although one Commissioner dissented, taking note of Dr. Schuman’s explanation of the internal damage that resulted when the claimant, a large and heavy man, was suspended in the air by only his seatbelt for several minutes.  Furthermore, the doctor pointed out the emergency room staff’s failure to perform CT scans that would have identified the abdominal damage which led to the multiple blood clots.  There was no evidence of ketoacidosis at the time of the accident or diabetic neuropathy prior to the accident.

Claimant Failed to Show Employer Refused or Failed to Provide Treatment

Suchland vs. Department of Corrections and Treasurer of Missouri as Custodian of The Second Injury Fund, Injury No. 13-095685

The ALJ awarded the claimant benefits for PTD as a result of the primary injury.  However, the ALJ did not award the unpaid medical for unauthorized treatment.  The claimant appealed.

The Commission affirmed the ALJ’s decision.  The claimant had contacted the employer and requested additional treatment after employer’s initial physician, Dr. Henry, released her from care.  The claimant testified that the employer directed her to Dr. Cantrell for additional treatment “I’m going to say [in] a couple of months, I’m not real sure.”  In the interim, the claimant sought care on her own from her primary care physician who ordered a CT.  The evidence showed that the employer provided her with a nearly constant course of care from her first demand for treatment to her final release.  The claimant’s uncertain testimony regarding the employer’s possible two-month delay in responding to her request for authorized care after the first doctor’s release did not establish that the employer refused or failed to provide treatment reasonably required to cure and relieve the effects of the work injury.  Therefore employer was not responsible for the unauthorized treatment.

ALJ Failed to Consider Expert Testimony that Prior Conditions Aggravated

Primary Injury for SIF Liability

Swafford vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. WD84562 (Mo. App. 2022)

After settling his claim with his employer for the 2017 primary injury to his right shoulder, the claimant sought compensation from the Second Injury Fund for PTD.  The ALJ found that although the claimant’s pre-existing cardiac conditions and ankylosing spondylitis each met the 50-week threshold specified in the statute, there was “no medical evidence opining that any of the prior conditions significantly and directly aggravated or accelerated the primary right shoulder injury.”  The Commission affirmed the ALJ’s decision and the claimant appealed.

The Court reversed the Commission’s decision and remanded the case for further proceedings.  The Court noted that ALJ did not address Dr. Lingenfelter’s conclusion that the claimant’s cardiac condition rendered him a very poor candidate for shoulder surgery.  The ALJ also failed to consider the doctor’s conclusion that the ankylosing spondylitis bore and “equal share [of the] blame,” and

constituted an “equal …. contributing factor” with respect to the disability associated with the claimant’s right shoulder.  Furthermore, the ALJ’s decision did not refer to Dr. Koprivica’s conclusion that there was a “significant synergistic effect” between the claimant’s “significant pre-existing industrial disabilities” and the additional disability stemming from the primary work injury.

Claimant Allowed to Submit New Evidence to Meet New PTD Standards

Against SIF

Dubuc vs. Treasurer of the State of Missouri Custodian of The Second Injury Fund, Case No. WD84171 (Mo. App. 2022)

The ALJ found that the injuries sustained in the claimant’s work accident of October 2015 were alone sufficient to render him PTD.  On appeal, the Commission reversed the ALJ’s decision and awarded the claimant PTD against the SIF.  The SIF appealed.  The Court reversed and remanded the case back to the Commission because the Missouri Supreme Court had filed a ruling (Cosby vs. Treasurer) about two months after the ALJ’s Final Award that required the claimant to now meet the standards set forth in Section 287.220.3 to prove his claim.  This was a more “strident standard” on Second Injury Fund claimants to show if any of the claimants’ pre-existing disabilities were medically documented disabilities equaling a minimum of 50 weeks of PPD and directly and significantly aggravated and accelerated the subsequent work related injury.

When the Court remanded the case to the Commission, it stated “These determinations will require the Commission to consider all evidence and to make additional factual findings before applying the correct legal standard to the facts.”  Thereafter, the Commission refused the claimant’s motion to conduct additional discovery and submit additional evidence.

The Court reversed this decision and remanded the case back to the Commission again stating it acted arbitrarily and abused its discretion in denying the motion.  The Court noted that the Cosby  ruling so significantly changed the judicial interpretation of Section 287.220.3 when the evidentiary hearing was conducted in this case that it would be improper and unfair to deny the parties an opportunity to present new evidence relevant to the newly announced legal standard.

The Court also noted that “medically documented” evidence can be interpreted to include self-reported medical history in medical records.  It also emphasized that the Missouri Supreme Court made clear in Parker that for PTD against the SIF, the Commission must consider all of a claimant’s qualifying pre-existing disabilities whether just one is established or several are.

Uninsured Employers Appeal Denied for Failure to File Bond

Greig vs. McCaleb, Case No. WD84430 (Mo. App. 2021)

The Commission rejected the employer's Application for Review of a Final Award because the employer, who was uninsured, failed to file the required bond.  The employer appealed.

The Court dismissed the employer’s appeal.  Since the uninsured employer is subject to the Workers’ Compensation Act, its failure to file a bond as required under the Act was grounds for the dismissal.

Civil Actions Against Co-Employees Must Show Negligence for an Unforeseen Risk Beyond the Non-Delegable Duty of Employer to Provide Safe Workplace

Miller, As Guardian  of Jamela Perry, Sister of Deceased, James Quinn vs. Bucy and Baker, Case No. ED107055 (Mo. App. 2022)

The claimant, Quinn, was killed at work while riding in the employer’s truck.  The employer was in the business of assembling and delivering trash and recycling cans.  The claimant’s supervisor, Bucy, told the claimant to ride in the back of the truck which contained unsecured trashcans full of rainwater, some of which were on wheels.  The supervisor and the driver, Baker, instructed the claimant not to tie down or secure the trashcans.  The truck’s trailer gate was broken, leaving the trailer open.  The driver, who had no CDL drove at a high rate of speed and as he made a left turn, the uninsured trashcans knocked the claimant onto the street.

Miller filed a petition against the supervisor and the driver as co-employees for the wrongful death of the claimant.  The co-employees moved to dismiss the wrongful death claim on the basis that §287.120.1 of the Workers’ Compensation Act prevented them from being held personally liable for breaches of the employer’s non-delegable duties of care to the claimant.  The Circuit Court granted the co-employees’ motion to dismiss the petition.  On appeal, Miller argued the dismissal was in error because the petition sufficiently alleged that the co-employees owed the claimant personal duties of care, separate and distinct from the non-delegable duties of care owed by the employer.

The Appellate Court affirmed the dismissal of the Circuit Court because the petition failed to state a claim for common law liability outside the employer’s non-delegable duty to provide a safe work environment.

A plaintiff must show that the co-employee breached a duty separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  The employer’s non-delegable duty is limited to those risks that are reasonably foreseeable.   An employer remains liable even though an employer assigns the performance of those duties to an employee.  When a claimant’s injuries result from the manner in which the work was being done, the injuries are attributable to a breach of the employer’s non-delegable duty to provide a safe workplace.

The Court determined that the business of trash and recycling removal necessarily involves risks from handling large loads and trucks, and the employer was aware of those risk factors.  The claimant’s death resulted from the manner in which the work was being performed and his death is attributable to a breach of the employer’s non-delegable duty to provide a safe workplace.

Personal Liability of Co-Employee Must Be Unforeseen Risk or Intended to

Cause Harm

Bestgen vs. Haile, Case No. WD83865 (Mo. App. 2022)

Haile, the employer, owned a very small excavation company.  The employer asked the claimant, Bestgen, to enter the trench that they were digging and there was a cave-in and the trench collapsed and injured the claimant.  The employer had chosen not to install a trench box, an OSHA required protective device to prevent trench collapse.

The claimant sued Haile personally for negligence alleging that Haile purposely and dangerously caused or increased the risk of injury to him by instructing the claimant and his co-workers to dig a deep trench without a trench box.

The Court affirmed the summary judgment in favor of Haile as it found that  Haile did not have personal liability as a co-employee defendant separate and beyond his duty as an employer under the Workers’ Compensation Act to provide a safe workplace.

To assert a common law negligence claim against a co-employee personally, a plaintiff is required to establish that a co-employee breached a duty unrelated to the employment, either independent of any master - servant relationship or unforeseeable breach of workplace safety outside the employer’s non-delegable duty to provide a safe workplace.

While Haile committed the affirmative negligent act of not shoring the trench with trench boxes, he did not do so with the conscious object or intention to cause or increase risk of injury to the claimant.  The claimant admitted this fact.  Furthermore, the risks associated with not installing a protective trench box were foreseeable risks to the employer, an excavating company.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2021 – December 2021

Need for Total Knee Replacement Necessitated by Work Injury

Rogers v. Marion C. Early R V School District, Injury No. 15-093845

On November 19, 2015, the claimant was running across a grass covered area to answer a fire alarm when he stepped in a hole, twisting and injuring his left knee. He underwent an MRI which showed an oblique tear of the medial meniscus. On January 13, 2016, Dr. Goodman performed a left knee arthroscopy and debridement of the meniscal tear. On April 4, 2016, Dr. Goodman performed a second left knee arthroscopy and debridement of the meniscal tear after the claimant was diagnosed with a recurrent medial meniscal tear with mechanical symptoms. The claimant’s symptoms persisted and on January 11, 2017, Dr. Goodman opined that a total knee replacement was warranted and stated that the meniscal pathology was work related, but the arthritis was not. The employer/insurer denied additional treatment. The claimant sought treatment with Dr. Mahnken who performed a left total knee replacement on April 21, 2017.

The claimant obtained a report from Dr. Hopkins who opined that the left knee injury on November 19, 2015 was the direct and prevailing factor in necessitating the left knee replacement. Dr. Stuckmeyer also opined that the November 19, 2015 injury was the prevailing factor requiring a left total knee replacement. The employer obtained a report of Dr. Mall who opined that he did not believe the need for total knee arthroplasty in any way flowed from the work accident but was related to the degenerative process that had already started prior to the work injury. Dr. Goodman opined that the claimant’s arthritis was the prevailing factor and cause for the need of a left total knee arthroscopy and the arthritis was not part of the work injury.

The ALJ opined that the left total knee replacement was necessitated by the work injury and noted there was no medical evidence presented that he had any prior injuries or conditions with the left knee which would have led to his need for a total knee replacement. Therefore, the employer was responsible PPD, TTD, and past and future medical treatment. The Commission affirmed the Award of the ALJ.

Claim Denied as Claimant’s Injuries Sustained in Motor Vehicle Accident After Choking on Breakfast Sandwich Not Sustained in Course and Scope of Employment

Booth v. DISH Network Inc., Case No. SC98948 (S. Ct. 2021)

FACTS: The claimant, an installer for DISH Network was injured in a single car accident in a DISH van which he was driving on the way to his first job of the day. He choked on a breakfast sandwich, blacked out, and crashed into a pillar on the side of the highway. The claim was denied by the employer. The case went to a hearing and an ALJ awarded benefits concluding that the risk source was having to travel on a rural highway on a strict timeline in a DISH van. The employer appealed and the Commission reversed the decision of the ALJ finding that the risk source was actually the claimant’s decision to eat a breakfast sandwich while driving. The Commission found there was no aspect of the claimant’s work that required him to eat breakfast while driving and the employer prohibited him from doing so. The claimant appealed and the Appellate Court disagreed and concluded that the claimant’s injury occurred within the course and scope of the employment. The employer then again appealed.

HOLDING: The Supreme Court concluded that the claimant’s risk source was eating while driving which created a risk of choking and led to the accident resulting in injury. The Court noted that DISH did not require him to eat breakfast after starting work for the day and as the claimant acknowledged he could have had breakfast before he began work. The claimant argued that aspects of his job such as the tight schedule, limits on the ability to eat lunch, and driving on certain roads played a role in the accident, but the Court found these arguments unconvincing. The Court concluded that the claimant failed to establish that his injury arose out of and in the course of employment and therefore the Commission’s decision denying benefits was affirmed.

Testimony of a Vocational Expert Relying on Hearsay Found Admissible

Otwell v. Treasurer of Missouri as Custodian of The Second Injury Fund, Case No. ED109447 (Mo. App. 2021)

FACTS: The claimant developed bilateral carpal tunnel syndrome and underwent surgery in April of 2009. She filed a claim for PPD and settled with the employer in February of 2010. In January of 2016 the claimant amended her claim, seeking coverage under the Fund for PTD due to a combination of her bilateral carpal tunnel syndrome in combination with pre-existing disabilities of a prior shoulder injury, incontinence, and psychiatric illness.

Mr. Lalk, a vocational expert for the claimant, concluded that she was unable to maintain employment in the open labor market and was PTD. Mr. Lalk reviewed various records and reports including a 2012 report prepared by Dr. Shuter who had performed an IME but who died before testifying. The SIF attorney on cross asked whether Mr. Lalk relied on Dr. Shuter’s report in reaching his conclusions and Mr. Lalk stated he had. On this basis, the SIF objected to the admission of Mr. Lalk’s testimony. The ALJ agreed and excluded the entirety of the Mr. Lalk’s testimony and his report as inadmissible hearsay. The claimant also introduced testimony from Dr. Volarich and the ALJ ruled to exclude the portion of Dr. Volarich’s testimony where he concurred with Mr. Lalk’s assessment that the claimant was PTD due to a combination of the primary injury and her psychiatric disability.

The ALJ found in favor of the claimant and awarded her PPD against the Fund. The ALJ denied the claimant’s claim for PTD finding no substantial evidence that the claimant suffered from a significant pre-existing psychiatric disability. The Commission affirmed and adopted the ALJ’s Award of PPD with minor changes and found that the claimant was not entitled to PTD against the Fund. The claimant appealed.

HOLDING: The claimant argued the Commission erred in excluding the entirety of Mr. Lalk’s vocational expert testimony. The Court concluded the Commission abused its discretion in excluding the entirety of Mr. Lalk’s testimony. They noted that Missouri law does not prohibit an expert from relying on hearsay when entering an opinion and found that although Mr. Lalk said in cross-examination that he relied on Dr. Shuter’s report, the Court rejected this response as dispositive on the issue of reliance because the broad definition of the term upon which the Fund’s counsel posed their question. The Court noted that Mr. Lalk made limited reference to Dr. Shuter’s report and referred to numerous other medical providers and therefore they were persuaded that the Commission’s ruling to exclude the testimony was against the logic of the circumstances and displayed a lack of careful deliberate consideration. The Court reversed the decision and directed the Commission to admit Mr. Lalk’s testimony and reconsider the Award in light of the testimony.

Expert Need Not Have Specialized Knowledge of Workers’ Compensation Law to Qualify as Expert Witness

Laura Williams, Jennifer Williams, Courtny Williams, and Kennedy Williams v. Reed, LLC, Case No. SD36883 and SD36892 (Mo. App. 2021)

FACTS: Jacob (claimant) was the sole member of the employer, an automotive parts and repair shop. Jacob’s wife, Laura, kept Reeds’ books. Jacob was not on the payroll as an employee, and he reported no wages but took a weekly draw of $600 or more by writing checks to himself on the business checking account and used the account for personal expenses. In 2015, Jacob was killed in a work-related accident. Laura and Jacob’s then minor daughters from a prior marriage, Courtny and Kennedy, filed claims for workers’ compensation benefits. Prior to the hearing before the ALJ, Courtny turned 18.

The ALJ admitted deposition testimony from the daughters’ expert, an attorney with experience in family law but little or no training or experience in workers’ compensation law or tax law. The expert testified that when calculating child support, income would be imputed when a parent owns a business, and their income is more difficult to ascertain that that of a salaried employee. The expert calculated Jacob’s earnings to be $62,100.13 for the year immediately preceding Jacob’s death, or an average weekly wage of $1,194.23.

The employer offered testimony from a CPA who testified that the company’s net profit reported on tax returns would be a proper measure of earnings for the LLC’s sole member and testified that the tax returns showed net profits of $13,127 in 2014 and $13,337 in 2015. The ALJ credited the testimony of the daughters’ expert and found Jacob’s average weekly wage was $1,194.23 resulting in a weekly compensation rate of $796.15. The ALJ found Courtny remained a dependent because she was enrolled at a community college and compensation was to be apportioned equally between Laura, Courtny, and Kennedy until one was no longer eligible.

The employer challenged the admission of testimony from the daughters’ expert, the compensation rate, and Courtny’s dependency. The Commission affirmed the ALJ’s average weekly wage calculation but determined that Courtny’s dependency terminated on her 18^th birthday because she had enrolled in only three course credits for the semester during which she turned 18, which was not a full-time course load. The daughters appealed and the employer cross appealed.

HOLDING: The Court found that the daughters’ expert did not need specialized knowledge of workers’ compensation law to be qualified as an expert witness. It noted that when §287.250.4 applies, as in this case, the standard wage formula does not apply and what is relevant and helpful is testimony about methods and considerations to calculate an employee’s wages fairly which is what the daughters’ expert provided. The Court noted to the extent that the employer argued the methods of the daughters’ expert were not as compelling as the employer’s expert the Court must defer to the Commission’s determinations. The Court concluded that the Commission did not abuse its discretion in admitting and relying on testimony from the daughters’ expert and that the Commission’s findings of fact as to Jacob’s average wage was supported by the evidence.

Fund Liable for Benefits as Priors Met Criteria for Fund Liability

Marberry v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED109554 (Mo. App. 2021)

FACTS: On September 24, 2015, the claimant fall backwards and hit his buttocks and upper back and sustained a whiplash injury to his neck. He was sent to Barnes Care and diagnosed with a contusion of his low back and pelvis and an injury to his neck level.

With respect to his preexisting condition, on July 19, 1999 sustained a work related cervical injury. He was diagnosed with multiple disc herniations and settled the claim with his employer for 20% PPD referable to the cervical spine. On October 7, 2002 he again injured his neck at work and had surgery. Then on December 19, 2014 he sustained an injury to his right shoulder at work. The claimant settled with his employer for 34.8% of the shoulder.

Dr. Volarich assessed 10% PPD referable to the lumbar spine and 35% PPD referable to the cervical spine as a result of the work injury. He also assessed 35% of the shoulder as a result of the 2014 date of injury and 20% referable to his pre-existing neck injuries. He concluded that the claimant was PTD as a result of his primary injury and the 2014 work injury in combination with each other as well as his pre-existing medical condition. Mr. Lalk opined that he was not able to work in the open labor market.

Dr. Chabot examined the claimant at the request of the employer and found he sustained thoracic, lumbar and cervical strain injuries as a result of the primary injury but did not attribute any PPD as a result of the primary injury and instead believed his complaints and PPD were associated with his 2002 neck injury and surgery.

The claimant settled his primary claim with the employer for 13.4% referable to the cervical spine and went to a hearing against the SIF. The ALJ found the claimant’s right shoulder could not be considered in determining Fund liability because his right shoulder had not reached MMI before the primary injury. The ALJ also found that the claimant’s low back injury could not be considered in determining Fund liability because it did not meet the 50-week PPD threshold. The ALJ concluded that the claimant’s evidence did not meet §287.220.3 and only demonstrated he was PTD from all his injuries, not just his primary injury and single qualifying pre-existing disability. The Commission affirmed the ALJ’s decision. The claimant appealed.

HOLDING: The claimant argued the Commission erred in determining his right shoulder injury and resulting disability could not be considered for Fund liability. He also argued that the Commission erred by mischaracterizing his low back injury as a prior injury. The Court found that the Commission erred by excluding the claimant’s right shoulder disability from consideration as, per Parker, the statute does not require the claimant to know his injury equals at least 50-weeks PPD before sustaining his primary injury. The Court noted that the claimant settled with his employer for 34.8% PPD which is more than 80-weeks PPD and that the Fund did not present any other evidence to dispute the disability rating, and therefore the right shoulder injury was a qualifying pre-existing disability under §287.

With respect to his low back, the Court noted that the Commission errored in prohibiting consideration of the low back disability because it did not satisfy the 50-week PPD threshold. The Court noted this applies only to pre-existing disabilities, not disabilities resulting from the primary injury, and the undisputed evidence in the record established that the claimant’s low back disability was a direct result of the primary injury. The Court also found that the claimant was entitled to PTD benefits from the Fund when considering the primary injury and his pre-existing conditions. The Commission’s Award was reversed.

Commission's Decision Reversed After Substituting Own Opinion in Lieu of Qualified Medical Expert's Opinion

Lynch v. Treasurer of the state of Missouri, Custodian of the Second Injury Fund, Case No. ED109502 (Mo. App. 2021)

FACTS: The claimant worked for the employer as a brewery worker from 1974 until 2009 performing physically demanding and repetitive tasks. His primary injury was carpal tunnel syndrome for which he underwent releases in 2011. He settled with the employer for 20% PPD of each wrist with a 10% loading factor. He continued with his claim of PTD against the Fund, alleging he was disabled as a result of a combination of his carpal tunnel syndrome and pre-existing conditions/injuries which included: 

·                     neck and low back injury from a boating accident in 1990

·                     two work related injuries to his low back which he settled

·                     total hip replacements in 2003

·                     osteoarthritis in both knees

·                     injury to the left shoulder requiring surgery

·                     injury to the right shoulder which required surgery

·                     right shoulder surgery immediately after his 2009 retirement

·                     neck and back complaints shortly after his retirement in 2009

The claimant was evaluated by Dr. Woiteshek who found him PTD as a result of his pre-existing disabilities combined with his primary work injury. The claimant’s vocational expert, Mr. Cordray, found that his physical limitations precluded all jobs in the competitive labor market. The Fund did not submit any evidence. The ALJ issued an Award in favor of the Fund. The claimant appealed.

The Commission made no credibility findings regarding the testimony of the claimant or Dr. Woiteshek and neither was impeached. The Commission explicitly found Mr. Cordray’s opinion neither credible nor persuasive as Mr. Cordray stated he did not consider the claimant’s subjective complaints yet his report included a list of such complaints. The Commission found that the claimant’s primary injury did not contribute to his overall PTD but rather the claimant retired or removed himself from the open labor market because of his pre-existing disabilities. The Commission affirmed the Award of the ALJ. The claimant appealed.

HOLDING: The claimant contended that the Commission ignored the only expert medical opinion in the record and substituted its own personal opinion regarding the cause of the claimant’s PTD. The Court agreed with the claimant. The Court noted that the Commission did not find that the claimant was not credible nor was the claimant impeached but the Commission simply relied on the claimant’s lack of treatment for a specific diagnosis of carpal tunnel syndrome before he retired. At the same time the Commission ignored other portions of claimant’s testimony where he stated he had issues and problems with his hands and wrists but did not know he had carpal tunnel syndrome until he was diagnosed. The Commission also ignored the qualified medical opinion of Dr. Woiteshek entirely despite the fact that he was neither impeached nor found not credible. The Court therefore found that the Commission disregarded and ignored competent substantial and undisputed evidence and instead relied on an excerpt from Mr. Cordray’s report quoting Dr. Rotman, the employer’s expert, as saying the claimant took early retirement for health issues mainly related to his heart, when Dr. Rotman’s report was not in evidence and not contained in the record. The Court found that the Commission’s decision was not supported by sufficient competent evidence and was against the overwhelming weight of the evidence. The Commission’s decision was reversed.

Fund Not Responsible for PTD Benefits as No Evidence That All Claimant’s Pre-existing Disabilities Met Threshold for Fund Liability

Clinkenbeard v. Department of Corrections & Central Accident Reporting Office & Treasurer of Missouri as Custodian of Second Injury Fund, Case. No. SD36942 (Mo. App. 2021)

On October 28, 2014 the claimant, a correctional officer sustained an injury to his elbow and shoulder. He received authorized care and Dr. Hicks performed a left shoulder arthroscopy.

The claimant did have a variety of preexisting conditions including a right shoulder fracture, bilateral work-related knee surgeries, bilateral hip pain, back pain, sleep apnea, a left wrist surgery, GERD/acid reflux, diabetes, restless leg syndrome, cataracts and deafness. Dr. Volarich and Mr. Eldred testified that the claimant was PTD as a result of the last injury along with his preexisting conditions. The ALJ found that the Fund was responsible for PTD benefits. The Fund appealed arguing that all the claimant’s preexisting conditions did not meet Fund liability pursuant to §287.220.3.

The Commission noted that Dr. Volarich and Mr. Eldred both concluded that the claimant was PTD based on all the claimant’s preexisting conditions and his primary injury. Since all the pre-existing conditions did not meet the criteria for Fund liability the Commission concluded that the Fund was not liable for benefits.

HOLDING:  The claimant argued that because one of his pre-existing disabilities, a prior shoulder fracture qualified under §287.220.3 then all of his pre-existing disabilities must be considered in determining the Fund is liable to pay him PTD benefits. The Court disagreed and noted that that argument was inconsistent with the Supreme Court’s decision in Parker. The claimant also argued that the Commission erred when it denied his request to remand the case back to the ALJ. The Court noted that the Commission may remand any decision of an ALJ for more complete Finding of Fact but it does not require that the Commission remand a case as a matter of law. Therefore, the Commission did not abuse its discretion not to remand the matter to the ALJ. Therefore, the Commission’s decision was affirmed.

Co-employee Immune from Liability for Claimant’s Injury Absent Intention to Cause or Increase Risk of Injury to Claimant

Brock v. Dunne as Defendant Ad Litem for Mark Edwards, Case No. SC97542 (S. Ct. 2021)

FACTS: The claimant worked at JMC Manufacturing on its lamination line with Edwards, a supervisor. JMC used a laminating machine with rollers that propelled sheets of particle board through the machine. A safety guard rested over the bottom pair of rollers and guarded the pinch point created where the bottom rollers met each other. The guard could be removed from its position while the machine was running to provide access to the bottom rollers. On April 30, 2013, Edwards instructed the claimant to clean the glue off the rollers. Despite his awareness of JMC safety rules and the machine’s warnings, Edwards removed the safety guard while the machine was still running. The claimant then squeezed water from a wet rag onto the rollers and the rag got caught and pulled the claimant’s thumb into the pinch point, crushing it. The claimant underwent three surgeries to repair his thumb but continued to have various restrictions due to the injury. He applied for Workers’ Compensation benefits and also filed a petition asserting product liability and negligence against the machine’s manufacturer and a negligence claim against Edwards. Edwards died before the trial and Dunne was substituted as Defendant Ad Litem.

Dunne filed a Motion for Directed Verdict which was overruled, and the jury returned a $1.05 million verdict in the claimant’s favor. Dunne then filed a Motion for Judgement Notwithstanding the Verdict “JNOV” arguing that the claimant failed to make a submissible case of common law negligence and Edwards was immune from liability under workers’ compensation. This was also overruled. Dunne appealed.

HOLDING:  The Court noted that the relevant portion of the statute governing work place injuries and immunity for co-employees states that “any employee of such employer should not be liable for any injury…and…shall be released from all other liability whatsoever…except that an employee shall not be released from liability from injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” The Court noted that Dunne would therefore be immune from liability for claimant’s injury unless the exception to the immunity statute applied.

The claimant argued that a factfinder could infer Edwards acted with purpose to increase risk of injury to the claimant simply from the fact that Edwards intentionally removed the safety guard knowing JMC’s safety rules and that the machine’s manufacturer prohibited and warned against removing the guard during operation. The Court opined that this required improper speculation and was not reasonable and concluded there was not sufficient evidence to make a reasonable inference that Edwards lifted the safety gate with the intention and purpose to increase the risk of injury to the claimant. The Court noted that while the injuries suffered were tragic, they were not the deliberate and deviant actions of a co-worker who sought to cause or increase the risk of injury to a co-employee. The Court noted that while evidence would support a finding that Edwards acted outside the safety rules, this merely demonstrated he acted negligently and not that he intended to cause or increase the risk of any injury to Claimant or others. The Court concluded that Dunne was therefore legally entitled to immunity under the statute and so the Circuit Court erred in overruling Dunne’s Motions for Directed Verdict and JNOV.

The Court also found that Claimant failed to make a submissible case of common law negligence which requires the plaintiff to demonstrate a claim of negligence and that the defendant co-employee breached a duty separate and apart from the employer’s foreseeable duty to provide a safe workplace. The Court noted that Edwards lifting the safety guard fell within the employer’s nondelegable duty to provide a safe workplace and therefore any alleged negligence on the part of Edwards in lifting the safety guard could not form the basis of common law liability. The Circuit Court’s judgement was reversed.

ALJ Has Authority Reopen a Record After a Hearing Before Final Award

Weibrecht v. Treasurer of Missouri as Custodian of Second Injury Fund, Case No. ED109591 (Mo. App. 2021)

FACTS: The claimant sustained an injury to his low back on July 19, 2016. He had previous injuries to his low back in 2005 and 2009 as well as an injury to his right shoulder in 2014. He settled his claim against the employer and in December of 2017 he filed a claim against the Fund for PTD benefits or in the alternative PPD benefits. He asserted in his Claim that the Fund was liable under §287.220.2. This was due to the fact that per Gattenby all of his injuries, both priors and the primary had to have occurred after 2014 in order for §287.220.3 to apply which limits the Fund’s liability. A hearing was held on May 29, 2019 and the record was closed and proposed Awards were to be filed in 30 days.

Before the ALJ issued her Award, on June 25, 2019 The Supreme Court handed down Cosby which abrogated Gattenby with respect to what “injury” had to take place after January 1, 2014 in order for §287.220.3 to apply. The claimant filed a motion to reopen the record for a supplemental hearing asserting that Cosby changed the law and that since some of his injuries occurred after January 1, 2014 his claim was governed by §287.220.3. He alleged that he had only prepared evidence for a hearing that related to Gattenby. The Fund agreed that the ALJ has that authority but noted that reopening the record was not appropriate due to the facts of the case. The ALJ denied the claimant’s motions to reopen the record. The ALJ issued an Award in August of 2019 denying compensation. The claimant appealed and the Commission affirmed and adopted the ALJ’s final Award with supplemental opinion.

HOLDING: The claimant appealed and argued that the ALJ erred when it denied post-hearing motions on the ground that she had no statutory authority to reopen the record and the Commission erred in affirming these rulings for the same reason. The Court agreed and required remand to allow the ALJ to rule on the merits of the claimant’s request.

The Court found that the power to reopen a closed record after hearing and take additional evidence at a subsequent hearing before the ALJ has entered an Award is not conferred by statute however the regulations implicitly authorize the ALJ to do so. The Court concluded that the ALJ had the authority to grant the claimant’s request and therefore the Commission acted beyond its powers when it affirmed the denial of those requests on the ground that the ALJ lacked authority to do so.

The claimant argued that Gattenby was the controlling law at the time under which §287.220.2 applied to his claims and §287.220.3 evidence was irrelevant. He noted that when Cosby abrogated Gattenby that provided “good cause” for him to request the record be reopened. The Court agreed. However, the Court noted that there must be a decision as to whether the particular evidence offered by the claimant actually pertains to the requirements of §287.220.3 and whether that evidence is necessary for a full and complete record. Therefore, the case was remanded to the Commission with directions to remand the case to the ALJ to determine whether the evidence offered by the claimant in his post-hearing motion was relevant and necessary and if so the ALJ was to make a more complete Finding of Facts based on that evidence.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2021 – September 2021

Claimant Denied PPD For Compensable Injury as Claimant Not Credible, Testifying Inconsistently with Testimony of Treating Physicians

Sulier v. SSM Health Care Corporation, Injury No. 13-064888

The claimant testified that on September 1, 2013 she was helping a patient to a bedside commode when the patient felt like she was losing her balance and grabbed the claimant’s right forearm.  She said this happened twice during her shift.  The claimant began treating with Dr. Razzaque who diagnosed right elbow lateral epicondylitis and referred the claimant to an orthopedic surgeon/physiatrist.  The doctor noted that her condition was work-related and that the September 1, 2013 incident was the prevailing factor.  She then treated with Dr. Bender who concluded the same and provided an epicondyle injection.  On October 23, 2013 the doctor opined that the epicondylitis had resolved and placed the claimant at MMI. 

The claimant subsequently injured her upper extremities including her left hand when she was grabbed by a combative patient on January 4, 2014.  She returned to Dr. Bender who again diagnosed right lateral epicondylitis and opined that this was a new injury after the claimant reported she was fine until she had to physically hold down a patient and felt pain in her elbow.  She once again underwent an injection and then was released from care on March 12, 2014.  She followed up with Dr. Bender on August 5, 2014 at which time she underwent a third injection. 

She was then seen by Dr. Strecker who performed a right lateral epicondylectomy on October 24, 2014.  Dr. Strecker’s notes indicated that the claimant had her right arm grabbed twice by a patient on January 4, 2014.  She followed up with Dr. Strecker complaining of pain when swinging her right hand and wrist and that it occurred since her elbow surgery.  The doctor was unable to relate these complaints to her original injury and released her from care on January 13, 2015.  The doctor opined that she had a 6% permanent partial disability of the right elbow attributable to the alleged injury of January 4, 2014. 

The claimant filed a Claim for Compensation alleging that on October 1, 2014 she sustained an injury to her right elbow when she was moving a patient off a toilet.  The claimant then filed an Amended Claim for Compensation amending the date of injury to September 1, 2013.

On direct-examination, the claimant denied any accident occurred on January 4, 2014 and said that she had been having a continuation of elbow pain that dated back to September 1, 2013.  She denied the accuracy of Dr. Strecker’s and Dr. Bender’s notes showing an accident occurred in January of 2014 and insisted she did not have a new injury. 

Dr. Strecker testified that the claimant reported an injury on January 4, 2014 when she was attempting to assist a patient and her right arm was grabbed twice.  He did not directly relate her subsequent right hand swelling and stiffness to her work injury and rated her as having 6% PPD of her right elbow attributable to the January 4, 2014 incident. 

Dr. Woiteshek testified that he examined the claimant on November 12, 2016 and she provided a consistent history of the injury at work to her right elbow on September 1, 2013.  However, there was no history provided concerning any other injuries to her right elbow after September 1, 2013.  He diagnosed traumatic lateral epicondylitis of the right elbow medically related to the claimant’s September 1, 2013 work injury and rated her as having 35% PPD of the right elbow all as a result of that date of injury. 

The ALJ concluded that the claimant met her burden of proving she sustained an accident on September 1, 2013.  The ALJ found that the claimant sustained a second right elbow injury while at work on January 4, 2014.  The ALJ also found that the claimant was confused about the time lines of events and onset of her complaints along with histories provided to physicians and therefore the claimant could not be relied on in her testimony regarding the nature of her complaints and problems.  The ALJ further found that the claimant failed to meet her burden of proof to present competent, credible and persuasive medical evidence to show that the right elbow diagnosis and disability was medically causally related to the September 1, 2013 accident.  The ALJ did not find the opinions and testimony offered by Dr. Woiteshek competent, credible or reliable.  He did find that the claimant sustained an accident as a result of the September 1, 2013 date of injury. However, he did not believe that the claimant had any continuing disability as a result of the same and therefore did not award any compensation. Accordingly, the claimant’s September 1, 2013 right elbow claim was denied.  The Commission affirmed the Award and decision of the ALJ.

Experts Who Reviewed Surveillance Found More Persuasive than Experts Who Relied on Subjective Evidence

Stratton v. R&L Carriers, Injury No. 15-079592

On October 16, 2015, claimant was involved in the delivery of freight at a local business when he slipped off the back of his truck and landed on his left foot.  X-rays of the left foot revealed a mildly displaced fracture of the left calcaneus.  He was seen by Dr. Bowling who recommended a bone stimulator.  He then underwent an EMG report which was negative and was placed at MMI.  He was then seen by Dr. Stuckmeyer for an IME and the doctor recommended he undergo a subtalar fusion.  The employer’s doctor, Dr. Bowling agreed that this could be beneficial but would not agree to perform it unless the claimant quit smoking which he has never done.  Dr. Bowling referred the claimant to Dr. Horton, who agreed that the claimant should discontinue smoking prior to undergoing a subtalar fusion.  Dr. Horton then ordered a CT scan which showed that the fracture had healed and he did not recommend surgery. 

The employer obtained surveillance of the claimant walking without difficulty, carrying groceries and using his foot to push himself into his truck without any difficulty.  The employer obtained reports of Dr. Zarr and Dr. Patel who did provide the claimant restrictions and permanency but believed the claimant could work.

Dr. Stuckmeyer provided an addendum report but did not appear to have reviewed the surveillance footage provided to Dr. Patel and Dr. Zarr.  At that examination, the claimant indicated a complete inability to walk on uneven ground and that he required the use of a cane to ambulate.  The claimant was evaluated by Ms. Sprecker, a vocational expert who opined that the claimant retained the ability to return to the labor market.  Mr. Cordray, a vocational expert retained by the claimant testified that he barely looked at the surveillance despite being specifically requested to review it and opined that the claimant was unemployable in the labor market on the basis of restrictions given by Dr. Stuckmeyer. 

The ALJ found that the opinions of Dr. Patel and Dr. Zarr were more persuasive on the question of work restrictions as they reviewed the surveillance footage whereas Dr. Stuckmeyer relied on subjective evidence.  The ALJ noted that the claimant testified he was incapable of bearing weight on his foot which was contrary to the surveillance. He also found that the claimant’s testimony was inconsistent with medical opinions and objective findings many times. The ALJ also noted that the surveillance was an important part of the case and was never reviewed by Dr. Stuckmeyer or Mr. Cordray.  The ALJ found that the claimant was capable of light duty work and that the claimant suffered a 22.5% permanent partial disability to his foot.  The ALJ found that the evidence did not support a finding that the claimant was entitled to future medical care.  The request for future medical care was therefore denied. 

The Commission affirmed the Award of the ALJ.

Pre-existing Work Injury Involving Three Different Body Parts Which Settled for 43% or 172 Weeks Qualifies for Fund Liability as Each Body Part Would Meet 50 Week Threshold

Cantrell v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 18-019636

The claimant sustained injury on March 16, 2018, to his right upper extremity. The treating physician released the claimant to return to work full duty on November 19, 2018. The claimant also sustained a psychological injury as a result of the primary injury. The claimant had a prior work-related right elbow injury for which he settled for 26.25 weeks, a 1998 injury to the left elbow for which he settled for 31.5 weeks, a low back and right shoulder injury in 1999, which he settled for 43% disability to the body referable to the right shoulder and low back or 172 weeks, a 2009 injury involving the right knee which he settled for 24% of the knee or 38.4 weeks and he also had preexisting psychological conditions. The ALJ found the claimant PTD and liable for benefits.

The Fund appealed and argued that none of the claimant’s preexisting conditions qualified. The claimant argued that his 1999 low back and shoulder injuries for which he settled with the employer for 43% disability, constitute qualify preexisting disabilities. The Fund argued that this would not qualify because it involves three distinct body parts. The Commission noted that even if one divided the PPD three ways, each of the three body parts would have at least 50 weeks PPD and therefore, the Commission found that it did qualify. However, the Commission goes on to note that because none of the experts in the case opined that the employee was permanently and totally disabled due to the primary injury solely in combination with the disability from the 1999 injury, the Second Injury Fund is not liable for the claimant’s perm total benefits as the other pre-existing conditions did not meet the threshold.

Fund Liable for Benefits as Primary Injury Combined With Three Qualifying Pre-existing Conditions to Render Claimant PTD

Wilson v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD84420 (Mo. App. 2021)

FACTS: On November 8, 2017, the claimant sustained an injury to his foot which required an open reduction and internal fixation. He was released from care and settled his claim against the employer for 42.5% of the right ankle. The claimant had various prior right knee surgeries, left knee, surgeries and cardiovascular issues. Dr. Volarich testified on the claimant’s behalf and opined that the claimant was permanently and totally disabled as a result of the work injury and his preexisting disabilities, including the right knee, left knee and cardiovascular condition. An ALJ denied the claimant’s claim for perm total benefits against the Fund as the claimant failed to sustain his burden of proof that perm total was the result of his primary injury in combination with a single preexisting disability at the 50-week threshold. The claimant appealed and the Commission affirmed and the claimant again appealed.

HOLDING: The Court of Appeals reversed the decision of the Commission noting that pursuant to Parker, all preexisting disabilities that qualify under one of the four eligibility criteria for Fund liability should be included when looking at perm total disability. Since the ALJ found Dr. Volarich’s testimony credible in that the claimant sustained a primary injury to his foot and had a preexisting work-related right knee condition, which amounted to 56 weeks and a work-related left knee injury which resulted in 88 weeks of disability along with a cardiovascular condition, which was 35% of the body or 140 weeks and that condition aggravated and accelerated his right foot injury the Fund was liable for benefits.

When Looking at Qualifying Pre-existing Disabilities, Filing a Claim and Receiving PPD is Just One Factor to Look at When Determining Fund Liability

Phelps v. Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. SD36998 (Mo. App. 2021)

FACTS:. The claimant sustained a compensable work-related injury to his left shoulder on April 14, 2016. The claimant settled his claim with his employer. The claimant argued before the ALJ and the Commission that the Fund was liable for PTD benefits because his pulmonary system/lungs along with his right knee and low back were each a qualifying preexisting disability that when combined with his primary injury resulted in his PTD.

With respect to his pulmonary system/lungs the ALJ found that he was diagnosed with asthma as a child for which Dr. Volarich assessed 30% disability to the pulmonary system. He did not file any claims for workers’ compensation or any Reports of Injury with the Division.  It also found he suffered a chemical exposure for which he filed a Report of Injury with the Division. He testified he was diagnosed with a chemical burn in his lungs which for which he did not receive a workers’ compensation settlement.  The ALJ found that the claimant did not meet his burden of proof that work was a substantial factor in causing his condition and that his chemical exposures resulted in compensable injuries. With respect to his right knee the ALJ found this was a non-work-related injury that resulted in a preexisting disability of 15% of his right knee (24 weeks) which did not satisfy the requirements of Section 287. With respect to his low back the ALJ found that he was injured in 2007 for which he underwent therapy and injections. He reinjured his back in 2015 and once again underwent therapy and injections. The ALJ found that the claimant did not meet his burden that the 2007 injury was a compensable injury as no expert addressed causation. The ALJ also found he had 11.4% preexisting disability from the 2015 injury referable to the lumbar spine which did not qualify under Section 287.

The ALJ found that there was an absence of any qualifying preexisting disability satisfying the first condition of Section 287 and therefore entered an Award denying PTD benefits.

The Commission issued a supplement opinion noting that the claimant also failed to demonstrate a single qualifying preexisting disability exclusive of any other preexisting disabilities that combined with disability from his primary injury to result in PTD. The claimant appealed.

HOLDING: The claimant argued that the Commission erred in that they increased the claimant’s burden of proof by requiring a preexisting compensable injury to be one in which the claimant filed a Claim and received an Award of PPD. The Court noted that the claimant was incorrect as the Commission considered and weighed along with other evidence whether the claimant had filed a Claim or Received an Award, which was relevant though not necessarily conclusive, and so nothing in the Commission’s findings or the record supported the argument that the Commission imposed a heightened requirement upon the claimant. His point was therefore denied.

The claimant also argued that the Commission erred by misinterpreting and misapplying Section 287.220.3 which he argued required determining the total weeks of permanent partial disability for each body part/affected area rather than separating recurrent injuries to the same body part/area by their particular injury and reinjury dates. The Court disagreed as this was contrary to the qualifying preexisting disability analysis recently announced by the Supreme Court in Parker which the Court found the Commission followed and therefore concluded they were not in error.

The claimant also argued that the Commission erred in finding that the claimant’s primary injury to his left shoulder was not an injury to the opposite extremity of his right knee. The Court was not persuaded noting that an opposite extremity does not apply for a right leg and left arm, and therefore the Commission did not err. The Commission’s Award denying PTD benefits was affirmed.

Consideration of Multiple Qualifying Preexisting Disabilities Allowed in Determining PTD

Comer f/k/a Colvin v. Central Programs, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 16-085212

On November 1, 2016 the claimant sustained an injury to her low back. Dr. Bamber performed a kyphoplasty on the claimant’s thoracic spine. With respect to her preexisting disabilities, she was in a prior motor vehicle accident in 1987 where she shattered the ball of her left hip.  She also sustained an injury in 2006 involved a compression fracture for her thoracic spine at the T8 level for which she underwent a vertebroplasty. She sustained another thoracic vertebral fracture in 2011, this time at the T6 level. After the 2016 injury the employer hired an investigator who observed the claimant as she walked, smoked, ate, conversed, carried a plate of food, drove and stepped up and down to enter and exit a truck. He did not observe her having any difficulty getting into or out of her vehicle or walking, though he noted her gait appeared to be somewhat guarded.

The claimant presented a report by Dr. Koprivica who assessed 15% PPD of the body for the various thoracic spine fractures prior to the work injury and 25% PPD of the left hip from the 1987 motorcycle accident. The doctor suggested the claimant was PTD due to a combination of her November 2016 injury and her preexisting conditions.  The employer submitted a report of Dr. Bailey who assessed 10% PPD of the body as a result of the November 2016 accident and that she had a variety of preexisting conditions. Dr. Bailey did not opine that she was totally disabled. Mr. Dreiling testified she was PTD a result of the combination of the November 2016 injury and her preexisting disabilities. Mr. Karrow testified on behalf of the employer and concluded that the claimant was employable.

The ALJ concluded the claimant had 25% PPD referable to the work injury and that she was PTD due to a combination of the November 2016 injury and her preexisting disabilities and that the Fund was liable for PTD benefits.

The Fund appealed and argued that the ALJ failed to analyze whether claimant’s work injury alone caused her to be PTD. The Commission disagreed noting that no expert opined that PTD was because of the November 2016 injury in isolation and therefore affirmed that ALJ’s finding that claimant sustained 25% PPD related to her November 2016 back injury. The Fund also argued that the ALJ used two preexisting injuries in combination with the primary injury rather than one. The Commission noted that Parker allows consideration of multiple qualified preexisting disabilities. The Fund also argued that the claimant’s preexisting hip injury was non-qualifying. The Commission affirmed the finding that the radiculopathy involving the claimant's right lower extremity that resulted from her November 2016 injury qualified as opposite of her left hip despite the fact that the November 2016 back injury was rated at the body.  It also found that the testimony of Dr. Koprivica was credible in that the low back injury was made worse due to the claimant’s altered gait which aggravated and accelerated the same. Therefore the Commission affirmed the award of the ALJ.

Fund Not Liable for Benefits Because Prior Settlement of 15% of Body Referable to Back and Bilateral Knees Did Not Qualify as Preexisting Disability

Adams v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 15-073485

The claimant sustained a work injury involving his right upper extremity on September 17, 2015 while working on a vehicle. The claimant settled his claim with the employer for 25% of the shoulder and 27% of the wrist. With respect to his preexisting conditions he sustained a 1984 work related injury to his left hand which he settled for 32.5% of the left hand. He also had a June 14, 2001 work related injury involving the bilateral knees and low back which he settled based on approximate disability at 15% of the body referable to the bilateral knees and low back. The stipulation failed to separate disability involving the body parts. The ALJ awarded PPD against the employer and found the Fund liable for PTD. The Fund appealed, arguing that the claimant failed to satisfy the criteria because the disability resulting from the 2001 work injury did not result in at least 50 total weeks of PPD to either the back or bilateral knees.

The Commission found that Parker explicitly required a claimant to demonstrate PTD solely by a combination of disability related to the claimant’s primary injury and preexisting disabilities that qualify under the statute. They noted that the Court expressly rejected the notion that non-qualifying preexisting disabilities may be considered. Because the claimant’s 2001 injury failed to qualify as a preexisting disability under the statute as neither condition resulted in at least 50 weeks of PPD and because no expert suggested that the claimant would be PTD in the absence of disability attributable to his 2001 work injury, the Commission concluded that the Fund had no liability. The claimant’s claim for PTD against the Fund was therefore denied.

Fund Responsible for Benefits as Both Preexisting Conditions, Including Polio, Found to be Qualifying Preexisting Conditions

Wolf v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-105395

The claimant’s primary injury involved carpal tunnel syndrome with an onset of December 2, 2014. The claimant settled against the employer for 22.5% PPD of the right wrist and 20% PPD of the left wrist. At a hearing, the ALJ found that the claimant had 13.5% PPD of the body from a prior November 2013 work related lower back injury that met the 50-week threshold pursuant to Section 287.220.3. The ALJ also found that the claimant had a non-compensable preexisting disability relating to polio in the amount of 35% PPD of each lower extremity at the ankle, which also satisfied the 50-week requirement set out in the statute and that this disability directly and significantly aggravated or accelerated the claimant’s primary injury, therefore qualifying as a preexisting disability under the statute. The ALJ concluded that the Fund was liable for PTD. The Fund appealed.

The Fund argued that the ALJ erred in considering claimant’s back condition because it had not reached MMI before the claimant’s primary injury. The Fund also argued that an award of PTD only is permitted when a single qualifying preexisting disability combines with a primary injury. The Commission found that the Supreme Court’s ruling in Parker was dispositive against these arguments as it found that a condition need not reach MMI before the primary injury and that multiple qualifying preexisting disabilities could be considered in determining fund liability. The Commission also found that Dr. Cohen’s testimony constituted substantial evidence that the primary injury and the preexisting condition resulted in PTD, as the polio aggravated and accelerated the work injury, contrary to the Fund’s argument that the ALJ improperly found that the claimant’s polio disability met the statute threshold. The Fund also argued that the ALJ improperly considered the claimant’s long history of disabling injuries without analyzing each preexisting injury separately. The Commission found that this was extraneous to the judge’s ultimate finding. The Award of the ALJ was affirmed.

Commission Decision Reversed After Erroneously Asserting Own Opinion on Matter of Causation

March v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD84377 (Mo. App. 2021)

FACTS:  Around April 2015 the claimant started having problems with his upper extremities.  He treated with Dr. Winston who concluded that the claimant’s bilateral upper extremity complaints were work-related and provided the claimant an injection to the right shoulder as well as carpal tunnel releases. The claimant settled his claim for his bilateral upper extremity issues for 27% of the body. The claimant also had various other injuries and health conditions leading up to the last date of the injury. However, the most significant was his morbid obesity which caused symptoms of pain radiating to both legs and swollen ankles.

Despite this comorbidity, Dr. Hopkins opined that the claimant’s job duties were the cause of his symptoms and he assessed 30% disability to each leg plus a 15% load. He further concluded that a combination of the claimant’s preexisting condition and his disability from his job duties combined with his primary bilateral upper extremity claim resulted in PTD.  The ALJ found that Dr. Hopkins’ opinion was not credible and therefore the claimant did not meet his burden to establish Fund liability.  The claimant appealed to the Commission who rejected the ALJ’s finding and found Dr. Hopkins to be credible.  However, a majority of the Commission’s three-member panel concluded that it was equally likely that the claimant’s pre-existing injuries resulted in the claimant’s PTD and denied benefits.  The claimant appealed.

HOLDING:  The claimant argued that the issue determining Fund liability was one of causation and there was only one uncontradicted expert medical opinion on the topic and the Commission credited that opinion as plausible but then erroneously asserted its own opinion to deny compensation.  The Court agreed noting that the conclusion that it was equally likely the claimant’s PTD resulted from his pre-existing injuries was unsupported by any expert testimony and was instead simply a lay conclusion, and therefore could not constitute substantial evidence to support the Commission’s Award.  The Commission’s decision was therefore reversed.

Claimant Failed in Burden of Persuasion as Commission Had Province to Believe or Disbelieve Witness

Anttila v. Treasurer of the State of Missouri Custodian of the Second Injury Fund Case No. SD36826 (Mo. App. 2021)

FACTS: The claimant worked as a truck driver. In 1994, he suffered on the job injuries to his left shoulder and left leg while working for Freymiller and made a full recovery. He then underwent chiropractic treatment in 2009 and 2010 for maintenance and then in 2011 and 2012 for complaints of neck, thoracic spine and left upper extremity pain. On January 3, 2014, he attempted to remove a pin from a trailer and felt a crunch in his neck and on the drive back, he began experiencing severe pain in his left arm and neck. The employer referred him to Dr. Mauldin who believed the claimant’s injury was preexisting regarding his shoulder and released him from care. He then treated on his own and underwent a cervical fusion on June 12, 2014 to address a C5-6-disc herniation.

In August 2015, he filed a Claim for Compensation. At the employer’s request, he was examined by Dr. Chabot who opined that the claimant’s cervical spine injury was work related and rated disability of 15% to the body as a whole, 5% of which he attributed to the claimant’s preexisting condition and noted he was able to return to work. The claimant filed an Amended Claim also alleging an occupational disease to the neck due to his job duties driving a truck. The claimant obtained his own physician, Dr. Paul, who examined the claimant and opined that he sustained 50% disability to the body as a whole as a result of all conditions relative to his employment with 15% due to his job duties and 35% for specific accident and resulting fusion. Dr. Paul also noted he sustained a 20% disability at the wrist for left traumatic carpal tunnel syndrome also as a result of the January 3, 2014 injury, and concluded that the claimant was PTD due to a combination of effects of the January 3, 2014 injury with prior disabilities. He was evaluated at his own request by a vocational expert, Mr. Eldred, who opined that the claimant was PTD as a result of his January 3, 2014 injury in isolation.

The ALJ found the claimant sustained 15% PPD to the cervical spine for his last occupational disease injury, 35% PPD of the cervical spine and 20% PPD for the left carpal tunnel syndrome both as a result of the specific injury. The ALJ also found he was PTD as a result of a combination of the occupational exposure injury of January 3, 2014 and the preexisting traumatic accident, which occurred earlier that day and found the Fund liable for benefits. The Fund appealed and the Commission denied the claim because he failed to demonstrate a preexisting condition that met the requirements of Section 287.220.3 as the preexisting disability (5% of the cervical spine per Dr. Chabot) did not meet the threshold requirement of a minimum of 50 weeks of PPD needed to combine with the specific accident. The claimant appealed.

HOLDING: The claimant argued that the Commission erred in reversing the ALJ’s finding of two separate claims. The Court did not agree and noted that the parties stipulated as to occupational disease and the traumatic injury. The claimant also argued that the Commission erred in finding that her was not PTD. The Court noted that it is the province of the Commission to believe or disbelieve witnesses and this was a battle of the experts. The Award of the Commission was affirmed.

Employer/Insurer Responsible for PTD for 2015 Low Back Injury Despite Subsequent Neck Injury in 2016 Because Despite Continuing to Work Claimant was Highly Accommodated After 2015 Injury

Watson v. Tuthill Corporation & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 15-036120

The claimant, a 58-year-old Senior Service Technician, sustained an injury to his low back. He had worked for the employer for 28 years. His job did involve heavy lifting. Dr. Cunningham, the authorized treating physician, performed an L4-5 fusion. Thereafter, he treated with Dr. Woodward. On February 1, 2016, the claimant sustained a subsequent injury involving his neck, for which he treated conservatively. He returned to work from January 2016 until April 20, 2016, when he retired. He was subsequently placed at MMI for the 2015 low back injury on July 18, 2016. The claimant did have various preexisting conditions, including a right shoulder surgery, two low back strains, a left shoulder surgery, a hernia which was repaired and a prior right elbow injury, all of which were worked related. Dr. Koprivica opined that the claimant was permanently and totally disabled as a result of the 2015 date of injury, as did Mr. Eldred. Ms. Sprecker testified on behalf of the employer and found that the claimant was employable. Dr. Woodward, the claimant’s authorized treating physician, did not recommend any continued pain medications or treatment.

At the hearing, the 2015-2016 injuries were tried simultaneously and therefore, the employer argued that the true last injury was the 2016 neck injury. However, the judge disagreed and noted that the 2015 injury caused significant disability and the subsequent neck injury was quite minor. The judge did note that the claimant admitted to having pains and limitation accumulating through the years but after the 2015 date of injury, he needed more than a modification or slight accommodation to continue working. It was noted that after he returned to work after the 2015 date of injury, he never performed his job in the manner any employer would have expected on the open labor market, which included frequent days off and taking multiple breaks to lay down during the day due to his back pain. The judge noted that it was abundantly clear from the record that due to the 2015 lumbar injury, the claimant was not capable of returning to work on the open labor market. In light of this, the employer was found responsible for perm-total benefits. The employer was also responsible for future medical that was reasonably required to cure and relieve the claimant from the effects of the work injury. The employer appealed and the Commission affirmed.

Employer/Insurer Responsible for PTD Due to Conservatively Treated Low Back Injury, Despite Claimant’s History of a C3-C7 Cervical Fusion

Harper v. Springfield Rehab and Health Care Center/NHC Health and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 18-057914

The claimant, a 69-year-old registered nurse, sustained an injury to her hip/low back on June 22, 2018. She did have a prior neck injury, which required a fusion from C3 to C7 in 2013. She noted that due to this, she had limited strength in her arms so she used her hip to push the cart. She felt a pull in her back but continued to work her 12-hour shift. She testified that within a few hours, she had difficulty walking, which became increasingly worse throughout the shift. After her shift, she went home, took Tylenol and went to bed due to her discomfort. During her deposition, she did admit that she did not feel immediate pain but rather the pain began as she was walking later in her shift. She was not asked if she felt a strain or a pull during her deposition but at the time of the hearing, she testified that she felt a pull or a strain in her back at the time of the incident. She received conservative treatment and underwent an MRI, which showed chronic degenerative spondylosis of the lumbar spine. Therefore, she was referred to her primary care physician. She did undergo epidural injections and attended a psychological consultation. Dr. Koprivica opined that she was totally disabled as a result of the work injury in isolation.

Dr. Cantrell testified on the employer’s behalf and concluded that there was no accident or injury. He testified that a pulling sensation in the muscle was not evidence of an injury. However, he noted that the claimant’s treatment with Dr. Gil could be considered reasonable for a temporary aggravation of a preexisting condition but her subsequent treatment was not work related. Mr. Eldred testified on the claimant’s behalf and found that him PTD based on the back injury alone. Mr. Hosutt testified on the employer’s behalf and found that the claimant was employable. However, the ALJ noted that he had not reviewed the depositions of the IME physicians and was not aware of Dr. Koprivica’s testimony that the claimant was not capable of full sedentary work and that it was medically appropriate for the claimant to lie down during the day to relieve pain.

At a hearing, the ALJ found that the claimant was credible and found that she sustained unusual strain in her lower back when she pushed the heavy medicine cart on June 22, 2018. The ALJ also found Dr. Koprivica credible and did not believe that Dr. Cantrell was credible, based on the fact that the doctor noted that she did not sustain an injury due to not feeling immediate pain. However, the claimant described a pull in her back and experienced pain thereafter and therefore, pursuant to the statute, this would be an unusual strain.

The ALJ noted that the employer/insurer argued that if there was a work accident, then the claimant sustained nothing more than a soft tissue injury and that the claimant merely took a well-deserved retirement when she quit work on November 14, 2018. The ALJ did note that this was a close case but she found the claimant and Dr. Koprivica credible and also noted that the claimant was rehabilitated from severe cervical disability to return to work full time as a nurse and she also attempted to continue working after her release after the 2018 date of injury and therefore, this would hardly suggest that she simply was desirous of retirement. The judge found that the claimant was PTD from the work injury in isolation and believed that the employer was responsible for future medical treatment. The employer appealed and the Commission affirmed.

Claimant PTD Due to Hearing Loss and Preexisting Disability so Fund Responsible for Benefits

Fields v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. WD 109251 (Mo. App. 2021)

FACTS: The claimant, a ramp agent, had various low back injuries, the first on August 17, 2011 and the second on May 17, 2012 which he testified worsened his low back symptoms from his initial injury. He also reported that he hurt his back at work on June 29, 2012 and then again on November 9, 2012.  He also testified he began noticing problems with his hearing loss in the last few years of his employment and testified to other injuries including one to his right shoulder and his right thigh. He also reported a fracture to his C7 vertebrae after an auto accident and that same year was diagnosed with depression and anxiety.

The claimant brought multiple claims against the Fund and an ALJ denied compensation for the claimant’s August 2011, May 2012, June 2012 and November 2012 PPD claims for his back injuries and also denied compensation for his November 2012 PTD claim for his back and his PTD claim for his hearing loss. The claimant appealed to the Commission who reversed the ALJ’s Award as to the claimant’s May 2012 back injury and awarded PPD benefits but denied PPD for his August 2011, June 2012, and November 2012 back injuries and his alternative PTD claim for his November 2012 back injury and his PTD hearing loss claim.  The Commission was not persuaded by the claimant’s physician who acknowledged that his disability ratings regarding the claimant’s back injuries were a “guess” and noted that nothing in the record suggested his hearing loss prevented him from performing his job duties. The claimant appealed.

HOLDING: The claimant argued that there was not sufficient evidence to support the Commission’s denial of the claimant’s PPD and PTD back claims because he was not required to establish an exact percentage of disability for each primary injury and he established the nature and extent of each primary injury by overwhelming evidence. The Court disagreed, noting that the Commission was presented with opposing expert opinions and noted that the claimant’s expert could not apportion the injuries individually and instead equally divided his disability rating among the back injuries which he conceded was a guess while the employer’s expert concluded that the claimant did not suffer permanent disability of any kind except from the May 2012 back injury. The Court noted the Commission was free to rely on the opinion deemed the most credible and persuasive.

The claimant argued that the Commission’s decision denying his PTD for his hearing loss was erroneous. The Court agreed. The Commission concluded that if the claimant was PTD it was based on prior physical injuries without consideration of his hearing loss but the Court noted that this was inconsistent with its own Award finding the claimant was not permanently and totally disabled based on his last back injury and his preexisting disabilities. The Commission’s decision finding the claimant was not PTD based on a combination of his hearing loss and preexisting disabilities was reversed while the Commission’s decision denying PPD for his back injuries and PTD for his last back injury were affirmed.          

When Challenging Award All Evidence Favorable to Factual Proposition Necessary to Sustain Award Must be Presented

Patrick v. Mulvaney and City of Monett, Case No. SD36956 (Mo. App. 2021)

FACTS: In 2015, the City of Monett began a project to renovate City Hall. The City Council member, Jerry Dierker was assigned to coordinate the project. He hired contractors including Derek Mulvaney, who did business as Mulvaney Construction. The claimant began working for Mulvaney sometime in 2015 and in March 2016 he suffered a serious injury to his left hand resulting in tendon damage to several fingers, requiring surgery. The employer reported the injury to Mulvaney, who informed the claimant that he did not have workers’ compensation insurance. The claimant filed a claim and the City and Dierker both filed Answers, denying they were an employer while Mulvaney did not file an Answer. After a hearing, the ALJ entered an Award finding Mulvaney liable for the claimant’s injury and the City secondarily liable, while Dierker was not found liable. The City appealed.

HOLDING: The City argued that the Commission’s finding that the City was a statutory employer of claimant was not supported because the evidence established that the claimant did not perform work for the City as an operation of the usual business which the City carries on and the claimant was an independent contractor. The Court noted that the City purported to utilize the three step analytical formula set forth in Nichols v. Belleview that requires an appellant challenging an Award to 1) identify a factual proposition necessary to sustain the Commission’s result 2) marshal all evidence in the record supporting the factual proposition and 3) demonstrate why the evidence from the second step lacks sufficient probative force on the issues. The Court pointed out that the City’s arguments failed to meet the second criterion as evidence in the records supporting the proposition was cited inconsistently. Therefore, the Award of the Commission was affirmed.

Claimant Able to Move Forward with Appeal as Application for Review Complied with Statute Despite Cover Sheet Not Being Detailed

Miller v. Henniges Automotive Sealing Systems North America, Inc., Travelers Indemnity Company of America and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED109432 (Mo. App. 2021)

FACTS:  The claimant filed two claims one for a 2015 date of injury and the second for a 2016 date of injury.  The ALJ found the 2015 injury was not compensable but awarded PPD benefits against the employer for the 2016 injury. The Fund was not liable for benefits on either claim.  The claimant filed an Application for Review (AFR) and appealed to the Commission arguing that the ALJ misapplied the restrictions placed on her by Dr. Cohen.  The employer filed an Answer in response and the Fund asked the Commission to dismiss as the claimant’s pleading did not satisfy the requirements laid out in 8 CSR 20-3.030.  The Commission issued an Order granting the Fund’s Motion to Dismiss finding the claimant’s AFR failed to satisfy the minimum requirements.  The claimant appealed. 

HOLDING:  The claimant argued that the Commission acted without or in excess of its power in granting the Fund’s Motion to Dismiss because the AFR sufficiently specified the reasons the claimant believed the findings and conclusion of the ALJ were not properly supported.  The Court agreed noting the Commission seemingly based its dismissal on the cover sheet of the claimant’s AFR while the AFR itself clearly specifies why the decision of the ALJ was not supported and therefore the pleading complied with 8 CSR 20-3.030.  Therefore, the Commission erred in granting the Fund’s Motion to Dismiss.  The decision of the Commission was reversed. 

Simon Law Group, P.C.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2021 – June 2021

Claim Denied Because Changing Directions When Walking Not Related to Employment

Overstreet v. TAMKO Building Products, Injury No. 18-009989

On February 12, 2018, the claimant heard pop and felt a tearing in his left knee while walking toward the load station. The claim was denied and the claimant treated on his own undergoing surgery with Dr. Grantham. He was evaluated by Dr. Koprivica at the request of his attorney, who opined that the February 12, 2018 injury was the prevailing factor in the acute internal derangement of the left knee.

At a hearing the claimant testified that where he was walking was the same as always, not wet, not slick and while it was night the area was lighted. In his deposition he stated he was walking downhill or across a decline when his knee popped but essentially answered “I don’t know” when asked if he thought that contributed to the incident.

At the hearing the claimant testified that there was a slope in the area but he did not indicate that the slope contributed to his knee popping. He did note there were cracks in the area he was walking, typical of asphalt, but could not say that he stepped in a crack or that a crack caused his knee accident. The claimant conceded that where he was injured was not dissimilar from numerous other asphalt lots in the area to which he was exposed in his non-employment life. He also agreed that he had been to other lots that were similar to the lot where he was injured in his non-employment life.

The ALJ concluded that the claimant did not meet his burden of proof that he sustained a compensable injury, as he did not show the risk of walking and changing directions was a risk related to his employment, and not one to which he was equally exposed in his non-employment life. The Commission noted that he tried to insert multiple red herrings by talking about wearing steel-toed boots at work but not at home and walking on uneven surfaces and over areas of asphalt more often at work, but he never claimed that any of those factors caused his knee injury. The only thing ever identified as the source of the injury was walking and changing directions. Benefits were therefore denied. The Commission affirmed.

Claim Denied as Twisting and Turning Was Not a Condition of Claimant’s Employment or Necessary for Performance of Job Duties

Durr v. Americare Systems, Inc. Clark’s Mountain Nursing Center Americare at Clark’s Mountain,Injury No. 15-013660

The claimant worked at the employer as a CNA on the night shift and testified that on March 5, 2015, she injured her left knee while moving back out of a space between the bed and a wall and quickly turned to exit and twisted her left knee when she pivoted on her left foot. She testified that she did not notice anything on the floor and was not holding anything when she turned. As part of her regular duties the claimant testified that she would place fresh water and ice in a container at the bedside of the nursing home residents to whom she was assigned. She testified that she tried to complete this job quickly as the single ice cart was also used by other nursing assistants for residents of other halls in the facility. The claimant’s night shift charge nurse testified on behalf of the employer and confirmed that one of the claimant’s job duties was to pass out ice to the residents in the rooms. However, she noted that there was no time limit although it was preferred that it be done within the first two hours of the shift. She also testified that she did not see or notice anything unusual about the room such as any item or substance on the floor on the claimant’s date of injury. At a hearing the ALJ believed that the claimant’s injury was the prevailing factor in causing the injury to the claimant’s left knee and awarded benefits.

The Commission disagreed with the ALJ, as they did not believe the claimant’s alleged injury arose out of her employment and pointed out that twisting and turning does not appear to be a condition of the claimant’s employment or necessary for the performance of her job duties and even if they were, the claimant like every other human being, would have been exposed equally in normal non-employment life to twisting and turning during normal daily activities. Therefore, they did not see a causal connection between the claimant’s work duties and the alleged injury. The ALJ’s Award was therefore reversed and benefits were denied.

Application of §287.140.4 (post January 1, 2014) Proper When Date of Service and First Notice of Dispute Occurred After Section Became Effective in 2014

Holland v. Meramec Mechanical Inc., Injury No. 12-034177

A Medical Fee Dispute Award was issued by an ALJ on November 24, 2020. The ALJ ruled the Application for Payment of Additional Reimbursement of Medical Fees by the healthcare provider was not timely filed. The provider then filed a timely Application for Review to the Commission.

The provider alleged that the Division erred in applying the section 287.140.4 instead of the version that was effective at the date of injury for the related workers’ compensation Claim of May 8, 2012. The provider argued that the applicable statute for the dispute should be the same as what applied to the workers’ compensation Claim. The provider also argued that by applying the 2014 version which contained a time limitation for filing a Medical Fee Dispute, the ALJ mistakenly and retroactively applied a substantive law.

The Commission agreed and pointed out that the statute of limitations for filing a claim for workers’ compensation benefits is controlled by the date of injury. However, the Medical Fee Dispute claim is not a Claim for workers’ compensation. Per the section effective on January 1, 2014, the pertinent dates in the statute of limitations are the date of service and the date of the first notice of dispute of the medical charge received by the healthcare provider. In the case at hand, the date of service and date of notice both occurred after January 21, 2014, when the statute had become effective. Therefore the ALJ’s application of the version of §287.140.4 effective on January 1, 2014 was proper and the Award was affirmed.

Claim Denied Because Claimant Found Not Credible and No Evidence of Injury in Medical Records

Hundley v. Con-Agg of MO, LLC & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-094684

On May 7, 2014, the claimant was delivering concrete to an elementary school and after the delivery his truck dropped off the curb and the claimant testified that his seat shot up like a rocket and he hit his head on the roof of the truck. He was seen the day after his injury at Cooper County Memorial Hospital with complaints but there was no mention of any work-related injury, head injury or him hitting his head on the roof of his truck. There was also no mention of the injury when he was seen by his primary care physician. The employer did send the claimant to Dr. Peeples who noted that any work injury was not the cause of his symptoms.

The ALJ did not find the claimant credible and noted there was no report of any injury in the medical records and he did not mention his injury to anyone at the employer. Also, he did not find the claimant’s experts credible as Dr. Shah did not see him until four years after the accident and did not review the emergency room records. Therefore, benefits were denied. The Commission affirmed the Decision of the ALJ.

Claim Denied as Claimant Testified Additional Job Duties Caused Symptoms But No Doctor Connected His Condition to Those Additional Job Duties

Mirfasihi v. Honeywell Federal Manufacturing & Technologies, LLC, Case No. WD84136 (Mo. App. 2021)

FACTS: The claimant began working for the employer, Honeywell, in 1984 and spent a majority of his time on a computer. Somewhere between December 2016 and January 2017, he began to experience pain in his left hand. He reported the issue on March 15, 2017. He was directed to treat with Dr. Steelman who believed the claimant’s symptoms were related to osteoarthritis, not any work-related activities. Based on this, the employer denied the claim. He then retired from the employer and began working for Argon National Laboratory, where his duties were much the same, though he spent a little less time on the computer. He then filed a Claim for Compensation, asserting a left hand and left thumb repetitive motion injury. He treated on his own and Dr. Maugans performed a left thumb A1 pulley release surgery in January of 2018. The claimant’s attorney obtained a report of Dr. Neighbor who concluded that the claimant’s job duties were the prevailing factor in causing his condition. Dr. Walker testified on behalf of the employer who did not believe his condition was work related.

At a hearing the ALJ awarded benefits. The employer appealed and the Commission issued a final Award reversing the ALJ’s Award and denying benefits. The Commission concluded that the claimant failed to meet his burden that his job duties were the prevailing factor in causing his medical condition because there was no record of the claimant informing the doctors of other work activities that could have caused his trigger finger. Specifically, the claimant testified at the hearing that when he traveled he was required to bring his laptop which he usually put in a brief case that he carried in his left hand and that he also transported his brief case to and from work at Honeywell when he was not traveling. Furthermore he had to badge in and push the door using his left hand which was much heavier than the average door. The Commission noted that despite the claimant’s testimony, no expert based their opinion on these job duties when authoring their reports. Also the Commission found Dr. Walker more credible than Dr. Neighbor. The claimant appealed.

HOLDING: The claimant argued that the Commission erred in theorizing that it did not have any expert opinion as to his other activities of carrying his brief case and opening the door that could have caused the trigger finger. The Court disagreed, noting that the record contained nothing about those other activities. The claimant also argued that the Commission erred in concluding he failed to meet his burden that his work duties caused his trigger thumb as they disregarded the opinion of Dr. Walker and failed to consider that his asymptomatic arthritis became symptomatic. The Court pointed out that the Commission did consider whether the claimant’s osteoarthritis was caused or aggravated by his work duties and they specifically found that it was not. The final Award denying compensation issued by the Commission was affirmed.

Claimant’s Shoulder Arthroplasty Found Not Work Related

Edwards v. Dairy Farmers of America, Inc., Injury No. 17-006238

On January 30, 2017, the claimant sustained an injury to his left shoulder. He initially underwent an MRI and was referred to an orthopedic surgeon. He was seen by Dr. Putnam who opined that the pathology was degenerative regardless of an alleged injury and therefore he did not recommend any additional treatment. The claimant then treated on his own and underwent a total arthroplasty. The claimant did have a preexisting condition and had undergone a prior surgery. However, he stated that once he recovered from that surgery he had no problem with his left shoulder until his work injury.

The employer then had the claimant evaluated by Dr. Lennard who did not believe that the claimant’s work injury was the prevailing factor in the onset of the left shoulder arthritis. Dr. Mullins examined the claimant on his behalf and connected the need for the arthroplasty back to the work injury.

At a hearing the ALJ found the opinions of Dr. Lennard and Dr. Putnam more persuasive. Also, he noted that the medical records of Dr. Wester, the claimant’s treating physician, were inconsistent with his testimony that he did not have any problems with his shoulder as when he was seen a year prior to the work injury he reported stiffness and pain in his shoulder. Therefore, the ALJ denied the Claim. The Commission affirmed.

Commission Erred in Finding that Claimant Must Prove PTD Resulting From a Combination of the Primary Injury and a Single Qualifying Pre-existing Condition

Lexow v. Boeing Company & Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED108853 (Mo. App. 2021)

FACTS: The claimant began worked as an aircraft stimulation technician and developed carpal tunnel syndrome. He settled his claim against the employer. He filed a Claim against the Fund alleging he was PTD as a result of a combination of his various pre-existing conditions and his carpal tunnel. At a hearing the ALJ issued an Award in favor of the claimant finding he was PTD due to a combination of his primary injury and pre-existing injuries. The Fund appealed.

The Commission reversed the ALJ’s award and concluded that in order to satisfy the statute a claimant must prove that the PTD resulted from a combination of a primary injury and a single preexisting disability that meets the 50-week threshold and falls into one of the categories for Fund liability.

HOLDING: The Court concluded that the Commission misinterpreted §287.220.3 in finding that the claimant must prove PTD resulting from a combination of the primary injury and a single qualifying pre-existing condition, noting that when the statute refers to pre-existing disability in the singular, it should be interpreted to include the plural form.

The claimant also argued that the Commission erred in failing to consider his 2003 workers’ compensation claim involving an occupational disease as a qualifying disability under the statute. The Court agreed, finding that §287.220.3 refers generally to a compensable injury and does not exclude occupational disease claims. Therefore, the Court concluded that the Commission erred in finding that the claimant’s bilateral carpal tunnel did not satisfy the requirement of the statute.

The Court therefore remanded to the Commission with instructions to make factual findings as to which of the claimant’s pre-existing conditions qualify under one of the four eligibility criteria listed in the statute to determine if the claimant is entitled to PTD benefits.

Both Claimant’s Physical Condition as well as Non-medical Considerations Such as Age, Education and Transferable Work Skills Can Be Considered When Analyzing Whether Claimant is PTD

Klecka v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED108721 (Mo. App. 2021)

FACTS: The claimant sustained an injury to his left shoulder on April 18, 2014 and settled the primary claim with his employer for 35% PPD of the left shoulder and 21.5% PPD of the body as a whole resulting from psychiatric injury, mainly depression. The claimant then pursued a Claim against the Fund following a history of work and non-work-related accidents and injuries.

The ALJ issued an Award in favor of the claimant for PTD benefits. The Fund appealed to the Commission, who found that the claimant only had one pre-existing disability that equaled a minimum of 50 weeks of PPD. The Commission reversed the Award based on its interpretation of §287.220.3, noting the claimant’s experts and the ALJ considered the claimant’s other injuries and disabilities as well as non-medical considerations such as age, education and transferable work skills. The employer appealed.

HOLDING: The claimant argued that the Commission misinterpreted §287.220.3. The Court agreed and found that it is appropriate to consider both the claimant's physical condition as well as other considerations such as age, education and transferable work skills when analyzing whether the claimant is PTD. The Court reversed the Commission’s decision and remanded the case for entry of an Award in favor of the claimant against the Fund for PTD benefits.

All of Claimant’s Preexisting Disabilities Being Considered for Fund Liability Have to Meet Criteria in Statute; Also Qualifying Preexisting Conditions Do Not Have to be at MMI Prior to Primary Injury

Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Parker, Case No. SC98704 (Mo. S. Ct. 2021)

FACTS: The claimant sustained a work-related injury to his right elbow and shoulder in March of 2014. He sustained another work-related injury to his neck in June of 2014. He then underwent surgery on his right arm in August of 2014. In September of 2015 he underwent a cervical discectomy fusion surgery and did not return to work following the surgery. He asked to return to work, but never heard back and attempted to work at another employer, but quit after a few weeks due to pain from the injuries. He filed a Claim against the Fund and proceeded to a hearing for the June 2014 injury. The claimant’s attorney obtained a report of Dr. Stuckmeyer who concluded that the claimant was PTD and the ALJ found that the Fund was liable for PTD benefits under §287.220.2. The Fund appealed and the Commission adopted the Award of the ALJ.

HOLDING: The Court found that §287.220.0 applied and under that statute employees must meet two conditions to make a compensable PTD claim, the first being that the employee must have at least one qualifying pre-existing disability. The second is that the employee must show he sustained a subsequent compensable work-related injury that combined with the pre-existing disability, resulting in PTD.

The Fund argued that the first condition can be met only when the pre-existing disability is determined to have reached MMI before the employee suffers a primary injury. The Court pointed out that the statute requires only that an employee has a medically documented pre-existing disability before suffering the primary injury. The Court concluded that an employee who suffers a pre-existing disability before his primary injury can meet the first condition regardless of whether he knew or it had been determined before suffering his primary injury that his pre-existing disability equaled 50 weeks of PPD.

The Fund argued that to meet the second condition only one pre-existing disability can combine with the primary injury to result in PTD. The Court disagreed, noting that while the statute refers to pre-existing disability in the singular, §1.030 instructs that the singular form should be interpreted to include the plural form.

The claimant argued that the second condition can be met by showing the primary injury resulted in PTD when combined with all the employee’s disabilities. The Court was not persuaded, noting that the section specifies that the subsequent work-related injury must combine with the pre-existing disability, which must qualify under one of the four eligibility criteria laid out in the statute. Therefore, the Court concluded that the employee satisfies the second condition by showing that the primary injury resulted in PTD when combined with all pre-existing disabilities that qualify under one of the four eligibility criteria listed in the first condition.

The Fund also objected to the admission of Dr. Hess’s report which was part of the complete medical record of Dr. Stuckmeyer and argued that the Commission erred in admitting Dr. Hess’s report. The Court did not agree as Dr. Hess’s report was part of Dr. Stuckmeyer’s complete medical report.

The Commission’s decision was vacated and the case was remanded to the Commission to evaluate the claimant’s Claim for PTD benefits.

Claimant Could Not Pursue Civil Suit Due to Workers’ Compensation Exclusivity

Ducoulombier v. Ford Motor Company, Case No. WD83430 (Mo. App. 2021)

FACTS: On February 25, 2016, the claimant’s husband was found unresponsive on a work platform at Ford and then taken to the hospital where he was declared brain dead. The claimant’s wife filed a petition in civil court alleging negligence by Ford through its first responders.

She also filed a workers’ compensation claim with the Division alleging that her husband sustained an injury at work which resulted in his death. Ford filed an Answer and also filed a petition in civil court denying any negligence and raised affirmative defenses including that the civil court lacked statutory authority to proceed with the case because the Division had exclusive jurisdiction. The claimant then filed a voluntary dismissal with prejudice with respect to the workers’ compensation claim and the Commission subsequently entered an order dismissing the Claim with prejudice.

In response to Ford’s Motion for Summary Judgment the claimant filed a response arguing that the Motion was moot as the workers’ compensation claim no longer existed.

Ford responded that workers’ compensation law could not be avoided with an election of remedies and that because the claimant dismissed her claim with prejudice, the Commission would never determine that the alleged injury underlying the claim did not arise out of and in the course and scope of employment as a necessary prerequisite for the claimant being able to proceed with a civil action. Ford therefore contended that the action was barred. The circuit court granted summary judgement in favor of Ford and the claimant appealed.

HOLDING: The claimant contended that the Court erred in determining that the Division had exclusive jurisdiction over a claim, as the allegations contained in her petition were based on principles of negligence, a cause of action available in the circuit court. The Court noted that a plaintiff cannot plead around the Commission’s statutory authority and the claimant does not have an undefeatable right to have the claim determined in circuit court just because she chose to file it there in the first instance.

The Court found that since the claimant’s petition alleged that her husband became incapacitated while at work and thereafter, suffered additional injury on Ford’s premises due to Ford’s negligence, the Court found no obvious or clear error in the circuit court’s conclusion that the claimant’s claim involved the employer/employee relationship and as such, the Commission had exclusive authority to determine whether her husband’s injury and death rose out of and in the course and scope of employment. The claimant’s point on appeal was denied. The circuit court’s judgment was affirmed.

Claimant’s Injury Resulting in Death Compensable so Claimant Could Not Pursue Civil Liability Due to Exclusive Remedy

Halsey and Kennedy v. Townsend Tree Service Company, LLC, Case No. SD36658 (Mo. App. 2021)

FACTS: On July 22, 2016, the claimant was asked to collect some caution signs and in the process of doing so, he passed out while working for the employer. The claimant was diagnosed with heat stroke and was hospitalized and died the following day, at which time hypothermia was given as his official cause of death. At the time of his death, the claimant was 23 years old, 6’1 inches in height and weighed approximately 300 pounds.

After the parents filed a wrongful death lawsuit in civil court they filed a Claim for Compensation with the Division in which they conceded that they were not making a new Claim, but merely seeking a factual determination from the Commission about whether a compensable injury occurred. The employer filed a response disputing that obesity was an idiopathic condition and argued that the claimant’s death qualified for and was covered by the exclusive remedy of workers’ compensation and that the amount of workers’ compensation owed had already been paid.

At an evidentiary hearing the ALJ found that the claimant’s injury which resulted in death was compensable. The claimant’s parents filed an Application for Review with the Commission which ultimately affirmed the ALJ’s decision. The parents again appealed.

HOLDING:  The parents alleged that a challenge to the Commission’s Award claiming its finding that an accident occurred under §287 was erroneous, as it was against the weight of the evidence. The Court was not persuaded.

The Court found that evidence was provided that the claimant’s obesity contributed to his heat stroke and death, however, the Court noted that there was no evidence in the record indicating that the obesity was thecause of his heat stroke and death. The parents therefore failed to meet their burden of proof, and therefore the Commission’s Award was affirmed.     

Civil Claim Barred as Contractor Found to Be Statutory Employer

State ex rel. Beutler, Inc. v. The Honorable Sandra C. Midkiff, Case No. SC98251 (Mo. S. Ct. 2021)

FACTS: The claimant was injured while operating a dump truck for the employer, R&B Trucking. He received workers’ compensation benefits. He then filed a negligence action against Shaw Construction, who subcontracted work to C-Sharp Trucking (who further subcontracted work to R&B Trucking) and Brian Henderson, an employee of Shaw. Shaw and Henderson argued that the common law action was barred by the workers’ compensation exclusivity doctrine because Shaw was the claimant’s statutory employer and Henderson was his statutory co-employee under §287.040.

The Court did not agree and found that the relationship between R&B Trucking and C-Sharp was a relationship between a for-hire motor carrier operating within a commercial zone…and an owner as defined in §301.020 and operator of a motor vehicle per §287.040.4,” thereby negating Shaw’s status as claimant’s statutory employer. Shaw and Henderson petitioned the Court for a Writ of Mandamus directing the circuit court to vacate its initial judgement, overruling their motion for summary judgement and to enter summary judgement in their favor.

HOLDING: The Court noted that the status of a statutory employer survives any chain of contractors and subcontractors and therefore, because there is an unbroken chain of contractors and subcontractors in this case, Shaw is the claimant’s statutory employer. Shaw and Henderson argued that the circuit court focused on the wrong relationship, arguing that the focus should not have been on C-Sharp and R&B but the claimant and Shaw. The Court agreed, noting that C-Sharp qualified as an owner under §301.010 but not as an operator, and as a result, §287.040.4 did not apply to C-Sharp’s relationship with the claimant’s employer, R&B Trucking. Because the exception in §287.040.4 did not apply to break the chain of subcontractors, Shaw is the claimant’s statutory employer. Therefore, Shaw is immune from suit and it follows that Henderson is also immune as the claimant’s statutory co-employee because Henderson was an employee of Shaw, the statutory employer.

Employee’s Use of Hairdryers Prevailing Factor in Causing Mesothelioma But Claimant Not Entitled to Enhanced Benefits as Employer Not in Business to Have Elected Them

Hayden v. The Cut-Zaven, LTD, Papillon, LTD & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-103077

The employee worked as a hairdresser for 47 years. He worked at multiple salons. He alleged that he used hand-held hair dryers which he believed contained asbestos. He could not remember the specific hairdryers that contained asbestos and most of those were discontinued as of 1979. He was diagnosed with mesothelioma on June 26, 2014 and died on April 26 2016.

At a hearing the ALJ concluded that the employee did not meet his burden of proof regarding medical causation. The judge noted that he could not specifically recall the types of hairdryers he used. The judge also noted that Dr. Hyers’ conclusion that the employee’s condition was work-related was simply based on the employee’s deposition testimony. The claimant appealed and the Commission affirmed. The claimant again appealed.

The Court of Appeals reversed the Award of the Commission finding that the claimant’s use of asbestos containing hair dryers was the prevailing factor in the development of mesothelioma. Therefore, the issue of medical causation was resolved in favor of the claimant, the employee’s widow. The Court further found that employee’s date of injury was June 26, 2014, the date of his diagnosis. The Court remanded the case to the Commission for determination of all remaining issues.

The claimant argued that employee was entitled enhanced benefits and that traditional PTD benefits as well as death benefits must be calculated at the same enhanced rate. The employer argued that the enhanced benefits that came into effect on January 1, 2014, did not apply to the employee’s March 9, 2015 claim because it was out of business as of 2005 and the new benefit was not contemplated or part of its insurer’s coverage at the time of the effect from 1979 through 1983. The Commission found that the claimant was not entitled to enhanced benefits because the employer could not have elected them after its 2005 termination, 9 years before the enhanced benefits came into effect.

The employer argued that the employee failed to produce credible evidence of what he earned and therefore, his wage rate must be calculated at the statutory minimum. The Commission found that the employee’s testimony as to his wages constituted competent substantial evidence of his average weekly wage and therefore, they calculated his wage rate for PTD benefits and death benefits at the rate of $403.33. The Commission awarded PTD benefits from June 26, 2014, the date of his diagnosis, to April 26, 2016, the date of his death. The Commission awarded the employee’s widow death benefits at the weekly rate of $403.33 until her death or re-marriage. The Commission also determined that the insurer responsible for benefits was the insurer at the time of the employee’s most recent or last exposure.

The claimant produced evidence of medical bills in the amount of $462,699.24. The employer contended that they should not be liable for the employee’s medical bills because they received no notice of his claim until after he incurred the charges and had no opportunity to direct or control his medical treatment. The claimant’s attorney argued that the employer’s failure to direct or pay for the employee’s treatment after notice of his March 4, 2015 claim gave rise to an inference that they would have refused treatment, even if employee had demanded it earlier. The Commission found that the employer was liable for reimbursement for employee’s medical bills.

The claimant asserted her entitlement to a $5,000.00 burial expense, pursuant to §287. The Commission noted that the record includes no documentation of the employee’s burial expenses and therefore, denied compensation for the burial expenses.  The claimant argued that the employer was liable for a 15% penalty for his failure to protect his employees from hazardous materials, as required by statute. The employer responded that the application of those statutes requires knowledge on the part of the employer of a hazard in order to protect the employee from it. The Commission agreed, finding no evidence that any named employer knew of the hazard and therefore, claimant’s request for a 15% penalty in all compensation was denied.

Expert Credible Despite Providing Alternative Opinions For Party Responsible for PTD

Franklin v. Mitchell Mill Systems USA, Inc. & Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36898 (Mo. App. 2021)

FACTS: The claimant worked heavy labor 50-58 hours a week for the employer, and in 2009 had to seek medical care for his lower back. He had back surgery in July of 2011 and returned to work after 6 weeks. He did not file a workers’ compensation claim. He then began experiencing problems with his wrist which led to bilateral carpal tunnel releases in 2012 and 2013 and filed a workers’ compensation claim. His sciatica returned and his back condition worsened while he welded from 2013 to 2014. He underwent surgery in October of 2014 but this did not relieve his symptoms and he was unable to return to work.

The claimant filed an occupational disease claim to his lumbar spine with an April 12, 2014 date of injury. He was evaluated by Dr. Koprivica who concluded his lumbar condition was work-related and that the severity of the claimant’s disability from the post laminectomy syndrome in isolation caused total disability. Mr. Eldridge, the vocational expert opined that the claimant was unemployable in the open labor market and permanently and totally disabled as a result of his April 12, 2014 injury in isolation.

The ALJ found the claimant to be permanently and totally disabled due to a combination of the April 12, 2014 work injury and his pre-existing disabilities. The employer and the Fund filed an Application for Review with the Commission found that the employer was liable for benefits as the claimant was PTD as a result of the last injury alone. The employer appealed.

HOLDING: The employer argued that the Commission’s award was not supported by the facts because Dr. Koprivica and Mr. Eldridge changed their minds and that Dr. Koprivica’s opinion was dependent upon Mr. Eldridge’s report, which was incomplete and inaccurate because the report stated that the claimant had no prior disabilities. The Court was not persuaded, noting that this characterization was inaccurate as Dr. Koprivica made an alternative opinion in the case of a hypothetical and that Mr. Eldridge in his evaluation stated that while the claimant had pre-existing conditions, it was the restrictions from the injury of April 12, made him totally disabled. The Commission’s Award was affirmed.

Claimant PTD as Result of 3 Elbow Surgeries and Employer Liable for Medical Treatment Despite Claimant Initially Treated On Own

Ritchie v. Silgan Containers Manufacturing Corp and Travelers Casualty Ins. of America,Case No. WD84123 (Mo. App. 2021)

FACTS: The claimant worked for the employer from 2009 to 2017 as a fork truck driver and developed pain in her left elbow. She then had a non-work related wrist fracture and while treating for that condition also began treating for her left elbow pain. She had two surgeries and used STD and FLMA. She returned to work and thereafter the doctor recommended another EMG and the following day the claimant provided written notice to the employer. She underwent a third surgery and the doctor gave her restrictions which the employer could not accommodate.

Dr. Neighbor evaluated the claimant and diagnosed complex regional pain syndrome, lateral epicondylitis and cubital tunnel syndrome and opined that her job duties were the prevailing factor causing the diagnoses.

She was then evaluated by Dr. Zarr who assessed 25% PPD to her left elbow and at first said he wasn’t certain what the prevailing factor is for her nerve but later opined that the claimant’s work was not the prevailing factor in causing her left elbow pain. Mr. Dreiling testified on behalf of the claimant and opined she was PTD disabled. The employer obtained a report of Dr. Cordray who opined that she could compete in the open labor market.

The ALJ concluded she was PTD, she provided timely notice of the injury to the employer and that her claim was not barred by the statute of limitations. The Commission affirmed the ALJ’s decision but changed the effective date for PTD benefits to May 2, 2019, the date of her MMI. The employer appealed.

HOLDING: The Court affirmed the decision of the Commission’s award. It opined that Dr. Neighbor’s opinion that the injury was the prevailing factor was sufficient and competent evidence to support the Award.

The employer argued that the Commission erred by finding that the claim was not barred for lack of timely written notice because Dr. Smith made a causal connection between the claimant’s work and her job duties noting that Dr. Smith mentioned her job duties and difficulty doing her job in his reports thereby establishing a work-related diagnosis. The Court disagreed, noting that the Commission could reasonably find that Dr. Smith never opined that she sustained a work related or occupational disease or injury arising from her repeated elbow use and therefore, his statements did not trigger her duty to provide written notice to the employer.

The employer also argued that the Commission erred in finding that they were liable for past medical expenses. The Court disagreed noting that evidence supported the Commission’s finding that the two surgeries performed by Dr. Smith and the third surgery that followed were necessitated by her repetitive motions and operating the forklift and therefore, because all three surgeries flowed from the occupational disease, the employer was liable for any medical expenses incurred by the claimant.

Mere Mention in Award that Claimant Was Married Insufficient to Establish Dependency at the Time of the Injury

Matthews v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED109168 (Mo. App. 2021)

FACTS: The claimant sustained a work-related injury on March 1, 2003 and settled with his employer and then pursued a claim against the Fund for PTD. Following a hearing, the ALJ awarded the claimant PTD benefits. The Fund appealed to the Commission, which affirmed the Award. Because no party appealed the Award, it became final. Pursuant to the Award, the Fund paid the claimant PTD benefits until his death, which was not related to his injury. The claimant’s wife then filed with the Commission aMotion for Substitution of Parties, in which she sought to receive the claimant’s PTD benefits as his surviving dependent, asserting that she was the claimant’s spouse at the time of the injury. The Commission dismissed the Motion for lack of jurisdiction, claiming that it had no statutory authority to continue the benefits because the ALJ’s Award did not contain a finding that she was the claimant’s dependent on the date of his injury. The claimant’s alleged spouse appealed.

HOLDING: She argued that the Commission erred in dismissing her motion because she presented evidence that she was the claimant’s dependent on the date of his injury, which entitled her to continuation of his PTD benefits. The Court disagreed, noting that if the final Award does not make findings establishing the dependance, the Commission does not have the authority to later disturb the finality of the Award by modifying it to make dependency findings that were not included in the final Award. The Court stated that the mere mention in the Award that the claimant was married was insufficient to establish dependency at the time of the injury, as it did not identify the appellant as the spouse and therefore, did not establish she was his dependent on that date. The Commission’s decision was affirmed.

                                                         Simon Law Group, P.C.

                                        720 Olive Street, Suite 1720, St. Louis, MO 63101

                                                                    314-621-2828

                        MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                                   January 2021 – March 2021

Claim Denied as Claimant Not in Course and Scope Because No Hazard Connected to Employment Caused Falls

Smith v. Lester E. Cox Medical Centers, Injury No. 17-011723

FACTS: The claimant sustained separate injuries from two falls at work. The first occurred near quitting time on February 21, 2017 when she was walking in the hallway and she landed on her left elbow. She was referred to Dr. Hicks who performed an open reduction with internal fixation of hardware. The hardware was removed at a later date. While on modified duty, the claimant fell again on April 25, 2017 after she was standing at a board with the listed surgeries and turned and began walking down the hallway. She landed on her left shoulder, elbow and hip.

She testified that the floors where she fell on each date were slippery from buffing or polishing though she did not know when the maintenance crew buffed the floors. She could not remember whether the floors were more or less slippery between her two falls and did not know whether anyone else had fallen in the same hallways between February 21 and April 25, 2017. She heard that there were some people who had fallen in the surgical department but she did not know their names. She testified that a coworker told her that she too had slipped because of the floor, though the coworker had not fallen. Neither the coworker nor any other witness testified regarding the condition of the floors.

Immediately after she fell on February 21, 2017, she told emergency room personnel that she had been “walking down the hallway, tripped and fell on her left elbow, denies LOC, denies neck or back pain…” and two days later when she saw Dr. Hicks, he recorded in the medical record that she tripped. She disagreed with his recitation and believed she told him she had slipped. Following her second fall the emergency room staff recorded that “patient states: she tripped over something while working (in OR) and fell…C/o left hip pain.” The claimant disagreed with this statement. Upon her admission to the hospital that same day Dr. Smith recorded that the claimant was not sure why she fell. She did not remember what she told the admitting physician. In a recorded statement taken by the employer’s third-party administrator the claimant stated she tripped and blamed it partly on her shoes which she stated she threw away. The claimant agreed with the accuracy of the recorded statement but stated she was emotional at the time and had been blaming herself.

The claimant saw a psychologist on May 9, 2017 who reported that the claimant stated she purchased a new pair of shoes in February 2017 and the soles kept catching on the floor and she noted she fell while wearing the shoes in late February.

According to the ALJ the issue was whether there was a risk source associated with the job that caused the claimant to fall on each occasion. A claim will be denied when the claimant fails to prove that there was a work hazard risk or risk of injury to which the employee would not have been exposed outside of work. In the instant case, the claimant did not prove that, more likely than not, a condition at her work place posed a risk of injury greater than what she faced off the job. She did not notice any hazards including substances on the floor, defects or any problems immediately afterward, and she gave different accounts of why she fell and believed that her shoes were at least partly to blame. Therefore, the ALJ concluded that the claimant did not meet her burden of proof of persuasion that there was a risk connected to her employment greater than one faced in her normal non-employment life. Therefore, the claim was denied. The claimant appealed.

HOLDING: The Commission affirmed the Award and decision of the ALJ.

Post Injury Misconduct Proven Therefore TTD Benefits Not Owed

Paxton v. Little Sisters of the Poor & Old Republic Insurance Company, Injury No. 14-001314

FACTS:  On January 11, 2014 while walking in the parking lot at work the claimant slipped on ice and fell and injured her left ankle. Several days later while in crutches the claimant fell again and lacerated her right elbow. She underwent authorized treatment with Dr. McCormick who diagnosed a distal fibula fracture in the left ankle on January 16, 2014. After the fracture healed the claimant continued to experience pain and the doctor recommended an evaluation. He was then seen by Dr. Tung who performed surgery on March 31, 2015. She then treated with Dr. Keener who diagnosed olecranon bursitis of the right elbow.

The claimant’s supervisors, Ms. Avery and Mr. Deering, who testified on behalf of the employer, terminated the claimant on May 5, 2014 after several policy violations including leaving a medicine cart unlocked twice and failing to supervise patients to make sure they took their medicine. The employer argued that the claimant engaged in post injury misconduct and was therefore not entitled to the TTD benefits she received. The ALJ concluded that the testimony of Ms. Avery and Mr. Deering was less than credible and that based on the exhibits and evidence, the employer did not meet its burden to prove the claimant engaged in post injury misconduct.

The claimant’s attorney obtained a report of Dr. Volarich who connected the claimant’s ankle condition back to the work injury and assessed 40% disability of the left ankle and 20% disability of the right elbow. The employer obtained a report of Dr. Krause who concluded that the claimant’s left ankle fracture and need for non-operative treatment was related back to the work injury. However, he did not believe that the superficial peroneal nerve injury was related to the work injury. In any event, the ALJ believed Dr. Volarich was more credible and connected the claimant’s peroneal nerve injury back to the work injury.

HOLDING: The Commission modified the Award finding that the claimant’s actions constituted misconduct as she violated employer’s known policy as well as state safety regulations when she left a cart with controlled medications unlocked and out of her sight which was irresponsible, unlawful and dangerous behavior, regardless of whether she intended harm or harm resulted. Therefore, she was not eligible for TTD after her May 5, 2014 discharge.

Application for Payment of Additional Reimbursement of Medical Fees Dismissed Because Not Filed Within One Year of Notice of Dispute

Chesterfield Spine Center, LLC, d/b/a St. Louis Spine and Orthopedic Surgery Center v. Best Buy Company, Inc. and XL Insurance America, Inc., Case No. WD83757 (Mo. App. 2021)

FACTS: On April 27, 2013 an employee of Best Buy was injured when a refrigerator fell on him. On December 22, 2015 Chesterfield Spine Center (“Chesterfield”) provided authorized treatment to the claimant and billed the employer $125,184.60. On May 23, 2016 Sedgwick Claims Management sent Chesterfield a check for $50,629.23 along with an Explanation of Bill Review. On August 16, 2017 Chesterfield filed an Application for Payment of Additional Reimbursement Medial Fees asserting that Chesterfield is entitled to the additional $74,555.37 for the authorized treatment. In response, the insurer filed a Request for Award on undisputed facts asking the Division to deny Chesterfield’s Application as untimely under Section 287.140.4. 

The insurer’s request asserted that 1) the date of service was December 22, 2015 and the amount billed was $125,184.60 2) a check in the amount of $50,629.93 and the Explanation was mailed by or on behalf of Sedgwick to Chesterfield 3) the Explanation was in writing and had Reason Codes to explain the basis for disputing the charged amounts 4) Chesterfield cashed or deposited the check on or before June 1, 2016 5) Chesterfield’s Application was filed on or about August 16, 2017.

Chesterfield denied that 1) the Explanation and check were mailed together 2) the Explanation constituted a notice of dispute and 3) Chesterfield received the Explanation on or before June 1, 2016.

On September 17, 2019 an ALJ denied Chesterfield’s Application finding that there were no genuine issues of material fact as to the notice of dispute or the fact that Chesterfield’s Application was time barred. The Commission adopted the ALJ’s findings and Award and concluded that Employer/Insurer is not liable to Chesterfield for additional reimbursement of medical fees. Chesterfield appealed.

HOLDING: In its first three points, Chesterfield argued that the Commission erred in dismissing its Medical Fee Dispute because genuine issues of material fact existed as to whether Explanation is a “notice of dispute” sent by an agent of the Employer/Insurer and whether it was received by Chesterfield more than one year before the Application was filed. The Court noted that the Explanation contained all the elements required by 8 C.S.R. Section 50-2.030(1)(A), and therefore the Explanation was a notice of dispute within the meaning of that rule.

For its remaining points, Chesterfield argued that the Commission erred in dismissing the dispute because Section 287.140 and 8 C.S.R. Section 50-2.030 violated Chesterfield’s constitutional rights in various ways including the retroactive application of laws, interference with the right to contract and vagueness. The Court was not persuaded. The Commission’s decision was affirmed.

Claimant Not Entitled to Past Medical Expenses Because No Demand Made or Notice Given to Employer

Justin Kent v. NHC Healthcare and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED108667 (Mo. App. 2021)

FACTS: The claimant sustained an injury to his back on December 4, 2008. The employer sent the claimant out for treatment and he treated conservatively until he was placed at MMI on March 2, 2009. In March of 2009 the claimant was terminated. He then began treating on his own.

The ALJ found that the employer was liable for $140,030.65 in past medical expenses and that they would be responsible for future medical expenses. The ALJ also ruled that the claimant was entitled to TTD benefits beginning May 12, 2010. The ALJ granted the claimant PTD based on both medical records introduced at the hearing and the ALJ’s observations of the claimant’s pain cues during his testimony. The ALJ held that the Fund was not liable because the claimant’s disability stemmed solely from the 2009 workplace injury.

The employer appealed. The Commission rejected the ALJ’s finding that the claimant was PTD and instead found that the claimant sustained 35% PPD referable to the lower back. The Commission affirmed the ALJs conclusion that the Fund was not liable for PTD. The Commission rejected the theory of constrictive notice adopted by the ALJ. Accordingly, the Commission reversed the ALJ’s award of most medical expenses as well as the award of additional TTD benefits. The Commission ordered the employer to pay PPD benefits in the amount of $44,123.80. The claimant appealed.

HOLDING: The claimant argued that the facts found by the Commission required a finding of PTD. The Court pointed out that the Commission found that while there is evidence that the claimant may be PTD, the evidence did not persuade them that it is the disability resulting from the work injury that caused the PTD. The claimant also argued that there was not sufficient evidence in the record to support an Award of anything less that PTD. The Court did not agree.

The claimant also argued that the Commission erred in not awarding past medical expenses.  The Court noted that Section 287.140.1 states that when the employee picks his own doctor, the employer must pay only when the employer has notice that the employee needs treatment or a demand is made on the employer to furnish medical treatment.  In this case, no demand was made by the claimant and there was no specific evidence in the record that would put the employer on notice that the claimant needed further medical care.

In his fourth point, the claimant argued the Commission erred in denying additional TTD benefits because the evidence showed the claimant was totally disabled during the time period at issue. The Court noted that an employee’s self-assessment may be sufficient evidence to establish TTD but it is not necessarily conclusive, and the Commission expressed concern as to the claimant’s credibility. The Court deferred to the credibility determination of the Commission and held that the denial of additional TTD benefits was supported by sufficient evidence.

Claimant Not Entitled to PTD From Fund Because No Documented Pre-existing Disability Qualified Per Statute

Phelps v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 16-025639

FACTS: On April 14, 2016 the claimant sustained an injury to his left shoulder. He was seen by Dr. Mall who performed an arthroscopic rotator cuff repair and released him at MMI on December 13, 2016. He settled his claim with the employer/insurer for 30% of the left shoulder. The claimant’s prior injuries include asthma, several chemical exposures, two motor vehicle accidents causing injury to the spine, three injuries to the right knee, two injuries to the lumbar spine, and injury to the right index finger and three strokes.

Dr. Volarich, the claimant’s expert, opined that the claimant was PTD due to a combination of the April 14, 2016 work injury and his pre-existing medical conditions. Ms. Shay provided a vocational evaluation and concluded that the claimant was unemployable in any work that is typically performed in the national labor market.

The ALJ concluded that the claimant was not entitled to PTD benefits from the Fund because the claimant has no medically documented disability that falls under categories 1,3, or 4 of Section 287.020.3.  Specifically, the Commission concluded that the claimant did not meet his burden of proof that his chemical exposures and right knee injuries were compensable since the evidence was insufficient to support a finding that they were a substantial factor in causing his medical condition.  Also, certain injuries were non-work related while others equaled less than the 50 weeks of compensation required by the Section.  The ALJ concluded that the claimant had no qualifying disabilities for Fund liability and therefore his claim against the Fund was denied.  The claimant appealed.

HOLDING: The Commission affirmed the ALJ’s decision noting that the claimant failed to demonstrate that a single qualifying disability combined with disability from his primary injury to result in PTD.

Fund Not Responsible for PTD Because Claimant PTD Prior to Last Injury

Barnes v. Karren Brock Construction, Inc. & and Bitco General Insurance Corporation & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 16-104170

FACTS: In 2015 the claimant, developed recurrent bilateral carpal tunnel syndrome. He did undergo releases with Dr. Brown and was released from care. He settled his Claim against the employer for 10% disability to each wrist.

With respect to the claimant’s preexisting injuries, he sustained a work-related non-surgical compression disc fracture in his low back in 1997 and received a settlement of 30% disability referable to the low back. In 2002 he developed carpal tunnel syndrome and underwent releases and settled that Claim based on 20% of the left wrist and 18% of the right wrist, a 15% load and two weeks of disfigurement. The claimant also had multiple medical conditions involving his neck, shoulders and hands and sleep apnea, polyarthritis, hypertension, bilateral shoulder bursitis, cervical disc disease with cervicalgia and chronic post knee replacement pain.

Dr. Meyers, the claimant’s expert, opined that the claimant was PTD due to a combination of his preexisting work injuries and his other non-work-related injuries. Mr. Kaver also opined he was PTD as a result of his work injury and his preexisting condition. Mr. Dolan testified on behalf of the Second Injury Fund and opined that the claimant was unemployable prior to the primary injury and he was employed only because of accommodations and an excessive use of opioids.

The claimant went to a Hearing against the Fund who first argued that the claimant’s pre-existing work-related carpal tunnel syndrome did not qualify under Section 287.220.3 because the disability did not equal a minimum of 50 weeks of PPD compensation as required by the statute. The ALJ noted that the claimant settled his Workers’ Compensation claim for 66.5 weeks of PPD benefits and therefore the argument was unsound.

The Fund then argued that the claimant’s total disability was a result of not just his work-related injuries, but also multiple non-work-related medical conditions. The ALJ concluded that these non-work-related medical conditions did not constitute permanent partial disabilities as defined by the statute because no physician certified that they were such.

The Fund also argued that the claimant was PTD before the 2016 occurrence and the ALJ agreed and denied the claim. The claimant appealed.

HOLDING: The Commission affirmed the award and decision of the ALJ denying compensation.

Claimant PTD From Last Injury Alone Therefore Not Entitled to Fund Benefits

Southerland v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-073978

FACTS: On September 6, 2011 the claimant was preparing to remove the shifter of a tractor and when he pulled the final bolt, the full weight of the shifter came down and threw his left arm and shoulder backward, causing injury to his shoulder. He underwent surgery and physical therapy but was not able to return to the level of function needed to do his job and so he was eventually let go. He settled with the employer for 15% PPD of the left shoulder. He has not worked since September 6, 2011 and was approved for social security disability effective September 2011.

The claimant has multiple pre-existing injuries and conditions, including a low back injury from 1979, a right elbow injury from 2002, a left shoulder injury from 2003, a right-hand carpal tunnel release in 2008 and bilateral neuropathy in the feet, diagnosed in 2010. Dr. Volarich determined that the claimant was PTD due to a combination of his last injury and his pre-existing conditions and rated 25% PPD of the left shoulder from the last injury and 45% PPD of the left shoulder, 20% PPD of the left foot, 20% PPD of the right foot, 20% PPD of the body as a whole relatable to the lumbar spine, 15% PPD of the right elbow and 30% PPD of the right wrist from his preexisting conditions. Ms. Skahan found that the claimant had a total loss of access to the competitive labor market due to his pre-existing left shoulder injury, his last left shoulder injury and his age.

The ALJ found that the claimant was PTD from the last injury alone and therefore, the Fund was not liable for permanent total benefits. The ALJ found that credible evidence showed that the claimant was able to work a physically demanding job for about 5.5 years before the last injury. The ALJ also noted that claimant’s preexisting injuries and disabilities were minor and did not result in significant disability. The ALJ rejected as excessive and not credible, Dr. Volarich’s disability ratings for the claimant’s pre-existing conditions. The ALJ also noted that Dr. Volarich’s ratings for the left shoulder were inconsistent and not supported by the medical records. Lastly, the ALJ noted that claimant’s testimony supported the conclusion that the last injury alone rendered him physically unable to work. The Claim against the Fund was therefore denied. The claimant appealed.

HOLDING: The Commission affirmed the Award and decision of the ALJ.

Claimant Failed to Meet Burden Entitling Him to Fund Benefits

Marberry v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 15-083958

FACTS: On September 24, 2015 the claimant sustained an injury when he fell backwards after reaching for a box and was diagnosed with a strain and pelvis contusion. He underwent physical therapy and was placed at MMI on June 28, 2018. He then proceeded to Hearing against the Fund. With respect to his preexisting conditions the claimant testified that he suffered three pre-existing disabilities, two to his neck and one to his right shoulder. In 1999, he sustained an injury to his neck for which he settled for 20% PPD of the body. In 2002, he was then involved in a car accident and sustained an injury to his neck that resulted in a fusion at C4-5 for which he was not given any permanent restrictions. On December 19, 2014 he was carrying a 50-pound bag up a ladder and he jerked his right shoulder. He underwent physical therapy but his pain persisted and so he underwent an MRI in 2016 and was diagnosed with a labral tear, tendinosis and bursitis of the rotator cuff. He underwent surgery and physical therapy and was then placed at MMI in May of 2017.

Dr. Volarich opined that the claimant was PTD as a result of the work-related injuries of December 19, 2014 and September 24, 2015, in combination with each other as well as in combination with his pre-existing medical conditions. Mr. Lalk opined that the claimant was unable to compete at the unskilled sedentary level because of his inability to control his symptoms through the work day.

The ALJ concluded that the evidence did not support a finding that the claimant was entitled to Fund benefits. A claimant must establish 3 steps to be entitled to Fund benefits. Step 1 requires the claimant to establish he had a pre-existing disability that equals 50 weeks of PPD. The ALJ noted that the right shoulder injury did not reach MMI until nearly two years after the primary injury, and thus it does not qualify for step one. The 1999 neck injury meanwhile settled for 20% PPD and the evidence submitted by the claimant from Dr. Volarich provided only one rating for the neck, which considered both the 1999 and 2002 injuries at 20% PPD. The ALJ noted that this was insufficient to satisfy the requirements of Step 1. Step 2 required claimant’s disability to fall into 1 of the 4 categories. The ALJ concluded that the claimant’s 1999 neck injury fell within category 2 as an acute work injury and that therefore, the neck injury satisfied step 2. Step 3 required claimant to prove his single qualifying pre-existing disability combined with his primary injury to render him PTD. The ALJ concluded that the evidence submitted by the claimant failed to show this since the claimant’s experts based their PTD opinions on consideration of the right shoulder, which did not yet reach the state of permanency. Based on the strict construction of language used in the statute, the right shoulder was disqualified from consideration for Fund benefits. The claimant therefore failed to meet his burden of proof that he was entitled to PTD benefits from the Fund. The claimant appealed.

HOLDING: The Commission affirmed the Award and decision of the ALJ.

Missouri Claim Denied as Claimant’s Kansas Settlement Entitled to Full Faith and Credit

Austin v. AM Mechanical Services & AMCO Insurance Company & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-112011

FACTS: The claimant sustained an injury while at work on March 10, 2011 when a 107-pound box fell and struck him on his face and head causing pain in his neck and wrist and a pop in his shoulder blade area. The claimant underwent a neck fusion, a TFCC repair on his left wrist and a carpal tunnel release and several other procedures. The claimant sustained several injuries prior to March 2011 including to his left shoulder, back and right knee. He settled his workers’ compensation case in Kansas which provided that he was closing out all injuries and claims arising out of his March 10, 2011 accident in all jurisdictions. He then filed a Claim in Missouri seeking workers’ compensation benefits for the March 10, 2011 injury.

The claimant argued that he was not bound by the Kansas settlement agreement because it was invalid as he was under duress and did not understand what jurisdiction meant. The ALJ noted that the claimant was in essence asking the Division to rule that a Kansas settlement agreement or contract approved by a Kansas ALJ was invalid at its inception, though he cited no authority and the Court found no such authority. The employer argued that the Kansas Settlement Agreement was entitled to full faith and credit of the US Constitution. The ALJ noted that if the claimant’s case had hinged on whether Missouri had to give full faith and credit to a Kansas decision based on a Kansas substantive law which differed from Missouri’s substantive law, he would not have been bound by the Kansas decision. However, the claimant’s case did not involve any differences in the substantive laws of the two states, but he merely wanted the Kansas settlement declared invalid. The ALJ concluded that full faith and credit must therefore be given to the language in the Kansas settlement agreement and therefore the claimant’s Claim in Missouri was denied. The claimant appealed.

HOLDING: The Commission agreed with the ALJ and found that the employer/insurer did not procure the Kansas Settlement by fraud or duress and that the full faith and credit clause barred the claimant from pursuing a Missouri Claim.

                                                       Simon Law Group, P.C.

                            nbsp;          720 Olive Street, Suite 1720, St. Louis, MO 63101

                                                                314-621-2828

                      MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                              October 2020 – December 2020

Claimant’s Accident Compensable as Risk Source was Driving/Conditions of Road, Not Choking on Breakfast Sandwich, but Employer Entitled to Reduction in Benefits for Safety Violation

Boothe v. Dish Network, Inc. Case No. SD36408 (Mo. App. 2020)

FACTS: The claimant, an installer for Dish Network, was injured in a single car accident in the Dish van he was driving on the way to his first job of the day. He choked on a breakfast sandwich, blacked out and crashed into a short pillar on the side of the highway. The Claim was denied by the employer. The case went to a hearing and the ALJ awarded benefits, concluding that the risk source was having to travel on a rural highway on a strict timeline in a Dish van. The employer did receive a 30% reduction for a safety violation as eating while driving was against company policy. The employer appealed and the Commission reversed the decision of the ALJ, finding that the risk source was actually the claimant’s decision to eat breakfast while driving. The Commission found there was no aspect of the claimant’s work that required him to eat breakfast while driving and the employer prohibited him from doing so. The claimant then appealed.

HOLDING: The claimant argued that the risk source was the inherent road and driving conditions of his employment not his decision to eat breakfast while driving and the Court agreed. The Court noted that the claimant had to identify the risk source as the immediate cause of injury and that he was not equally exposed to driving risks in nonemployment life. The Court agreed with the claimant that the activity that caused the claimant’s injury was driving and crashing the van. It noted that while choking caused the accident, the accident caused the claimant’s injuries. The Court went further to note that there was no dispute that the claimant drives extensively as a part of his employment and there was undisputed evidence that on the claimant’s day off, he does not maintain a travel schedule he has on his job. Therefore, the claimant’s injury occurred within the course and scope of his employment.

The employer also argued that violation of a company rule, such as doing prohibited work or engaging in an activity personal to the employee, may be such conduct as to take the employee outside of the course of employment. The Court found that the argument lacked merit. It noted that the claimant’s general argument that the claimant’s violation of a safety rule takes him outside the course of employment would render the section of safety violations meaningless. For the Commission’s final award, denying compensation was reversed and the cause was remanded to the Commission for further proceedings consistent with the opinion.

Claimant’s Condition Not Compensable as Workplace Stress Not Extraordinary and Unusual

Shipley v. State of Missouri Office of Administration and Treasurer of Missouri as Custodian of The Second Injury Fund, Case No. SD36643 (Mo. App. 2020)

FACTS: The claimant was hired on by the employer in 2001 as a maintenance engineer at a prison power plant. He had various issues with other employees and supervisors. In March 2010 the claimant refused to timely turn off a boiler scheduled for repairs, got into shouting matches with his supervisor and subordinates, and then left in his truck. He returned briefly the next day, but after calling the peer-action review team, he was taken to a nearby ER and then transported by ambulance to another hospital for psychiatric care.  The claimant resigned in May 2010 and filed a Claim for Compensation shortly thereafter.  The claimant suffered a stroke six months later and filed a second Claim for that event.

After a hearing, an ALJ concluded that the claimant did not meet his burden of proof on the mental health claim that the actual events he described, alone or collectively, objectively rose to the level of extraordinary and unusual stress.  The ALJ also concluded that the claimant did not meet his burden of proof that his work-related stress was the prevailing factor in causing his stroke six months after he resigned from his employment.  The Commission affirmed with a supplemental opinion.  The claimant appealed.

HOLDING: The claimant argued that that the Commission’s acceptance of one expert’s opinion over another was so unreasonable that it must be overturned.  The Court pointed out that the weighing of conflicting medical testimony lies within the Commission’s sole discretion and cannot be reviewed by the Court.  The claimant also argued that there was a lack of evidentiary support for the finding that the claimant did not meet his burden of proof that his mental injury arose out of and in the course of his employment and that he did not meet the objective standard for proof that he was exposed to extraordinary and unusual work stress compared to other power plant managers or other similarly situated employees.  The Court was not persuaded, noting that evidentiary support is only needed when factual findings are made to make an Award for the claimant. The Commission’s decision was affirmed.

Claimant’s Shoulder Condition Denied as Employer’s Expert More Credible than Claimant’s Expert

Comparato v. Lyn Flex West, et al., Case No. ED108870 (Mo. App. 2020)

FACTS: The claimant worked for the insured beginning in 1998 and in 2013 allegedan occupational disease to her shoulder. The employer sent her to Dr. Strege who did not believe that her job duties contributed to her condition. The claimant then treated on her own and underwent surgery. The claimant’s attorney sent her to Dr. Poetz who connected her condition to her job duties. The parties went to a hearing and the ALJ denied benefits. The Commission affirmed the ALJ’s decision and modified the Award specifically finding that Dr. Strege’s opinion was more credible than Dr. Poetz’s opinion. The claimant again appealed.

HOLDING: The claimant argued the Commission exceeded its authority by substituting its own opinion of causation for the opinion of the doctor. The Court noted that the Commission specifically found Dr. Strege’s opinion more credible than Dr. Poetz’s opinion and therefore her first argument was denied.

The claimant also argued that the Commission’s findings were not supported by substantial and competent evidence. The Court disagreed and noted that there was sufficient and competent evidence as Dr. Strege considered more information than Dr. Poetz including the claimant’s medical history, photographs of her surgery, personal review of radiographic testing, two examinations of the claimant, deposition testimony, and the PDA. Therefore, the Commission’s final award was affirmed.

Claimant’s Unauthorized Surgery Not Compensable due to Pre-existing Condition, Gap in Treatment and Subsequent Exacerbation of Symptoms

Beavers v. St. Johns Mercy Medical Center et al., Injury No. 07-123519

On December 24, 2007 the claimant sustained an injury to his back and treated with Dr. Coyle who diagnosed a lumbar sprain with left leg radiculopathy. He was also seen by Dr. Cantrell who recommended work conditioning and work restrictions. He was released at MMI. He returned to work and thereafter he was subsequently terminated because of an encounter with a co-worker which ended with an argument and the claimant telling the co-worker to “get the f*** out of my face”. This occurred in front of a patient which was grounds for termination.

The claimant then treated on his own and eventually underwent an L5-S1 lumbar microdiscectomy with Dr. Levy. He continued to treat and subsequently filed for Social Security disability and was awarded benefits on September 21, 2011. Dr. Poetz testified on behalf of the claimant and believed that the need for the claimant’s surgery and subsequent treatment was a result of the work injury.

At a hearing the ALJ noted that despite the claimant denying any radicular complaints prior to the work accident there was evidence in the medical records that he did experience the same. The ALJ also noted the gap in treatment from when he was last seen by Dr. Cantrell on August 13, 2008 until he saw his own physician on December 7, 2009 at which time, he reported low back pain, noting, “pain began couple of weeks ago progressively worse-last episode - 07.” The ALJ also noted that in or around December 2009 the claimant sustained another acute exacerbation of his low back and leg complaints while working for a subsequent employer. In light of this he did not believe that the claimant’s surgery and subsequent treatment was related back to the work injury. Therefore, the employer/insurer was not responsible for the claimant’s unauthorized medical treatment or future medical treatment.

The ALJ also noted that the claimant was not entitled to TTD benefits since causation was not found. However, he did note that even if causation was made the claimant would not be entitled to TTD based on the fact that he was terminated and his actions did arise to the level of post injury misconduct. The claimant was awarded 12.5% of the body referable to the lumbar spine as a result of the work injury as well as permanent partial disability benefits from the Fund due to the claimant’s preexisting conditions. The claimant appealed and the Commission affirmed the award of the ALJ.

Claim Filed Against Fund Denied Because Not Timely Filed

Hunsaker v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. SD36450 (Mo. App. 2020)

FACTS: On June 28, 2011 the claimant filed a Claim for Compensation against the employer or an injury on January 24, 2011.  The SIF was not included as a party to the Claim.  On December 28, 2015 the claimant settled his claim against the employer. On December 14, 2016 the claimant filed an Amended Claim adding the SIF.  In its Answer, the SIF asserted that the Claim was barred by the statute of limitations.  At a Hearing, the ALJ agreed and denied benefits.  The Commission affirmed the ALJ’s decision. The claimant appealed.

HOLDING: The claimant argued that his December 28, 2015 settlement with the employer constituted a claim, and his Amended Claim against the SIF on December 14, 2016 was therefore timely filed because it occurred within one year of the settlement.  The Court found that the settlement could not constitute a “Claim” for statute of limitations purposes since the claimant filed an earlier Claim for Compensation.

The Court also noted that because the Amended Claim did not supplement or amend the Claim against the employer, the Amended Claim could not be used to calculate the statute of limitations date.  Therefore, the Amended Claim against the SIF was filed more than one year after the claimant filed his initial Claim against the employer on June 28, 2011. 

The claimant also argued that the barring of his SIF claim violated his constitutional rights of due process and equal protection of the law. The Court was not persuaded. The Commission’s decision was affirmed.

Claimant’s Claims Against the Fund Denied Based on The Statute of Limitations

Scott v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case Nos. SD36596 and SD36597 (Mo. App. 2020)

FACTS: The claimant sustained an injury while working for the employer in July 2009. The claimant sustained another injury in March 2010.  The claimant filed two separate Claims for Compensation against the employer on March 24, 2010.  On April 18, 2016, 6 years later the claimant filed Amended Claims for each injury now naming both the employer and the Fund.  Each of the Amended Claims named the same body parts as the original Claims.  In response to each Claim, the Fund asserted a statute of limitations defense.  After a Hearing, the ALJ entered Awards finding the claimant’s Claims against the Fund were not timely filed. The Commission affirmed.  The claimant appealed. 

Per the statute, a claim against the Second Injury Fund shall be filed within two years after the date of injury or within one year after a claim is filed against an employer or insurer, whichever is later.

HOLDING: The claimant made various arguments, one being that she filed sufficient Amended claims making subsequent changes before settling her cases and therefore her claims against the Fund were not untimely. The Court did not agree as she did not add any additional body parts that she injured and therefore neither of the Claims added to the original Claims by adding some cause, effect, or injury relating back to the original Claims.

The claimant also argued that other filings in the case such as the pre-hearing requests, mediation requests and hearing requests counted as Claims since they listed the Fund as a party to the proceedings.  The Court was not persuaded. 

Therefore, the Court affirmed the Commission’s decision that the Claims were barred by the statute of limitations.

Court Upheld Commission’s Dismissal of Claimant’s Fund Claim for Failure to Prosecute

Hager v. Treasurer of Missouri as Custodian of the Second Injury Fund,Case No. ED108950 (Mo. App. 2020)

FACTS: The claimant was injured at work and filed a Claim. He settled the case with his employer but his Claim against the Fund remained pending. Over the next several years the case was set, continued and re-set numerous times. An ALJ issued an Order of Dismissal with prejudice for failure to prosecute. The claimant filed an Application for Review and the Commission set aside the Order of Dismissal. The case was again repeatedly reset and continued for multiple years.

The Division then sent the claimant and his attorney a Notice of a pre-hearing which was mailed to the claimant’s address on file but was returned by the postal service with the notation “Attempted-not known” and “unable to forward.” The Division informed the claimant’s attorney and advised it was imperative the Division have the claimant’s updated contact information. The Division also set the case on a Dismissal Docket. The attorney for the Fund appeared but the claimant and his attorney did not. The ALJ later issued an Order of Dismissal with prejudice for failure to prosecute.

The claimant’s attorney filed an Application for Review with the Commission on the claimant’s behalf asserting (1) he had faxed a letter to the ALJ seeking a continuance because he had been unable to reach the employee (2) the ALJ erred in finding no good cause was shown because the Judge did not hear evidence and did not review any of the claimant’s medical records (3) he did not believe the claimant received the Notice to Show Cause because the address used did not appear to be a good one and (4) he had retained a professional investigator to make an effort to locate the claimant.

The Commission affirmed the ALJ’s Order of Dismissal noting it was still not convinced the Application sufficiently alleged the claimant had prosecuted his claim or had good cause for failing to do so. The Commission also found that counsel being unable to reach his client showed that the claimant failed to prosecute his claim by failing to keep in contact with his attorney. The claimant again appealed.

HOLDING: The claimant made various arguments including that the Commission’s decision was not supported by sufficient evidence because the Application for Review established evidence of good cause for failure to participate in the show cause setting and also that the Commission relied on several cases predicated on a Regulation that had been repealed. The Court was not persuaded and affirmed the decision of the Commission.

Employer Responsible for PTD Benefits Due to Left Knee Surgery and Pulmonary Emboli

Joyner v. Monsanto & American Zurich Insurance Company & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 17-035903

The claimant was a journeyman plumber and on January 18, 2017 he sustained an injury to his left knee. He underwent an MRI which showed a tear. He had a week-long vacation to Costa Rica planned and asked the doctor if it would be okay to go and the doctor advised it would not be a problem as it would take a while to get into an orthopedist. A day after his return he was taken to St. Anthony’s Medical Center and hospitalized for deep vein thrombosis which caused pulmonary embolism in both lungs and respiratory failure with hypoxia

Subsequently Dr. Fissel performed surgery. Dr. Fissel did assess 5% disability to the left knee and did connect the claimant’s deep vein thrombosis and pulmonary emboli back to the work injury. He provided the claimant restrictions of no ladders, no squatting, no climbing and no kneeling.

The claimant’s attorney obtained a report of Dr. Volarich who assessed 25% disability to the left knee and 25% disability to the body due to the deep vein thrombosis. He also assessed 35% of the body which was preexisting due to a prior low back surgery and 15% of the left foot due to a prior injury.

Mr. Hughes testified on behalf of the employer and concluded that if the claimant was permanently and totally disabled it would be due to his preexisting condition in combination with the work injury. Ms. Gonzalez provided a report on behalf of the claimant and she concluded that the claimant was permanently and totally disabled as a result of the last injury in combination with the claimant’s preexisting condition. However, at her deposition she testified that the claimant would not be able to perform even sedentary work because of the limitations he has from shortness of breath, easy fatigability and lack of endurance which were a direct result of the last injury alone. Therefore, the ALJ found the employer/insurer was responsible for benefits. The employer appealed and the Commission affirmed.

Employer Responsible for PTD Benefits Despite Claimant’s Pre-existing Conditions Including Bilateral Shoulder, Back and Carpal Tunnel Surgeries

Franklin v. Mitchell Mill Systems USA, Inc. & Accident Fund Insurance Company of America & Treasurer of Missouri as Custodian of Second Injury Fund,Injury No. 14-025678

The claimant filed a Claim for occupational disease with an April 12, 2014 date of injury involving the claimant’s low back. Dr. Cunningham performed a L4-5 decompression and microdiscectomy. Thereafter, he treated with Dr. Woodward who released him to full duty and assessed 10% disability to the body referable to the work injury and 10% preexisting. After he was released from authorized care he never returned to work.

The claimant does have various preexisting injuries/conditions including a prior right knee surgery, work-related right shoulder surgery, work-related left shoulder surgery, low back surgery, and work-related bilateral carpal tunnel syndrome.

The claimant’s attorney obtained a report of Dr. Koprivica who noted that it was possible that the claimant was PTD was based on the last injury alone. However, if it was found that he was not then he would be PTD due to the work injury and his preexisting conditions. Mr. Eldred opined that the claimant was PTD as a result of the primary injury and his preexisting disability. The ALJ agreed and found that the claimant was PTD and the Fund had liability. The Fund appealed arguing that all of the claimant’s preexisting conditions did not meet the threshold pursuant to section 287.220.3 as they did not fall into one of the four categories needed to be considered for Fund liability.

The Commission did not specifically address that argument by the Fund as they first looked to the last injury alone and found that the claimant was PTD as a result of the same. Therefore, the employer was liable for benefits regardless of whether 287.220.2 or 287.220.3 applied.

Fund Not Responsible for PTD Benefits as No Evidence That All Claimant’s Pre-existing Disabilities Met Threshold for Fund Liability

Clinkenbeard v. Department of Corrections & Central Accident Reporting Office & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-089634

On October 28, 2014 the claimant, a correctional officer sustained an injury to his elbow and shoulder. He received authorized care and Dr. Hicks performed a left shoulder arthroscopy. Ultimately Dr. Hicks provided the claimant a permanent lifting restriction of 20 pounds.

The claimant did have a variety of preexisting conditions including a right shoulder fracture, bilateral work-related knee surgeries, bilateral hip pain, back pain, sleep apnea, a left wrist surgery, GERD/acid reflux, diabetes, restless leg syndrome, cataracts and deafness. Dr. Volarich and Mr. Eldred testified that the claimant was PTD as a result of the last injury along with his preexisting conditions. The ALJ agreed and found the employer responsible for 27.5% of the shoulder and 10% of the elbow and the Fund was responsible for PTD benefits. The Fund appealed arguing that all the claimant’s preexisting conditions did not meet Fund liability pursuant to§287.220.3.

After looking at the claimant’s preexisting conditions the Commission determined that no qualifying preexisting disability had been established. The Commission noted that Dr. Volarich and Mr. Eldred both concluded that the claimant was PTD based onall the claimant’s preexisting conditions and his primary injury.

The Commission noted that there was evidence to show a preexisting fracture of the right shoulder from 2009 which would qualify under§287.220.3 as it was a pre-existing condition to the opposing extremity as the work injury. However, there was no medical opinion to support the conclusion that the combination of the right shoulder preexisting condition and any resulting disability combined with the left shoulder and elbow primary injuries resulted in permanent total disability. Rather Dr. Volarich and Mr. Eldred opined that it was all the preexisting conditions together that combined to result in permanent total disability. Therefore, the Commission concluded that the claimant’s disability from the last injury did not combine with any preexisting qualifying disability to result in total and permanent disability pursuant to §287.220.3 and therefore the Fund was not liable for benefits.

Civil Claim Barred Against Distributer as It was Found to Be Claimant’s Statutory Employer

Sebacher v. Midland Paper Company, Case No. ED108615 (Mo. App. 2020)

FACTS: Midland is a distributor of paper and packaging supplies. They contract out to independent contractors who deliver the products instead of Midland’s own employees delivering them. The products are delivered by CHR Transportation and the claimant was employed by this entity as a truck driver working full-time delivering Midland’s products pursuant to its contract with CHR. The claimant was allegedly assaulted by one of Midland’s employees and filed a petition against that employee and Midland asserting claims of assault and battery and alleging that Midland was negligent in failing to supervise and train the co-employee and in retaining him as an employee. Midland asserted an affirmative defense advising that it was immune from the suit as workers’ compensation was the claimant’s exclusive remedy since Midland was his statutory employer. Midland filed a Motion for Summary Judgment which was granted. The claimant appealed arguing that Midland was not its statutory employer.

HOLDING: The Court noted that one is a statutory employer if 1) the work is performed pursuant to a contract 2) the injury occurs on or about the premises of the alleged statutory employer and 3) the work is in the usual course of the alleged statutory employer’s business. The issue here was whether the claimant was performing work within the usual course of the employer’s business.

The Supreme Court of Missouri has defined usual business as those activities that 1) are routinely done 2) on a regular and frequent schedule 3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time and 4) the performance of which would require the statutory employer to hire permanent employees absent the agreement.

In this case, the claimant was on the employer’s premises to pick up products for delivery.  This work was to be routinely performed on a daily basis and delivery services would be repeated over a relatively short period of time.  Finally, the employer established through Affidavit that if the third party’s drivers were not performing transportation services for the employer, the employer’s employees would have to provide the transportation.

Therefore, the Court found that the employer’s usual business was to distribute and deliver its products to its customers. Therefore, the employer was the claimant’s statutory employer and the claimant’s claim was barred because the claimant’s exclusive remedy was workers’ compensation.