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Missouri

SIMON LAW GROUP, P.C.

  314-621-4646


Simon Law Group, P.C.

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

314-621-2828

 

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2022 – September 2022


New Claim for Wrist Denied Following Settlement of Earlier Claim for Repetitive Injury to Same Upper Extremity

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.

Fund Can Receive Reimbursement from Uninsured Employer Absent at Hearing When Appeal is Not Timely Filed

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.

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

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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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 18th 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. 

 


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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.

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                   MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                               July 2020 – September 2020

Fall Not Compensable Because Stairs Were Risk Source Claimant Equally Exposed to In Nonemployment Life

Marks v. Missouri Department of Corrections, Case No. WD 82956 (Mo. App. 2020)

FACTS: The claimant worked as a corrections officer and on November 9, 2016 he was descending a staircase while conducting a security check when he missed a step and felt his right knee twist. He completed an Incident Report and noted that at the time of the injury he was not responding to a code or other emergency situation, was not distracted, was not carrying anything, there were no offenders in the area, there was nothing on the floor and there was nothing wrong with the steps. When asked what may have caused the injury the claimant answered that he stepped off the step wrong.

At a hearing the claimant testified that he was injured when he became distracted and looked back to check on a coworker who was helping the claimant conduct a security check. He testified he was concerned about the coworker’s safety and the risk posed by offenders who might have remained in their cells after being released for a meal. He confirmed that he was required to ascend and descend stairs at the apartment complex where he lived.

The ALJ denied the claim. He did not find the claimant credible as his testimony was inconsistent with the statements he provided almost immediately after the accident. The ALJ found that the accident occurred when the claimant missed a step and did not arise out of and in the course of the employment. The claimant appealed and the Commission affirmed. The claimant appealed again.

HOLDING: The Court noted that in the past the courts have conducted a “risk source analysis” between an employee’s work activities at the time of injury and the relative risk of injury in the employee’s nonemployment life. The Court has applied a two-part test which first requires identification of risk source of the claimant’s injury, that is, the activity that caused the injury and then a comparison of that risk source or activity to normal nonemployment life.

The claimant first argued that the Commission erred because it should have determined that the risk source of his injury was walking down the stairs while conducting the security check for criminal inmates in a correctional housing unit. However the Court noted that the claimant failed to offer credible evidence that would support a conclusion that this activity increased a risk of injury beyond the risk the claimant was exposed to in his normal nonemployment life.

The claimant also argued that the Commission erred in finding that he was equally exposed to the risk source of descending stairs in his normal nonemployment life. He argued that the Commission improperly compared the risk source of his injury, walking down the stairs, to the risk of injury he faced in his normal nonemployment life because the quality, quantity and nature of the stairs as well as the observance required of the claimant in traversing those stairs was not equal to the risk he faced descending stairs in his normal nonemployment life. The Court did not agree and noted there was no credible evidence upon which the Court could rely to conclude that he faced an increased risk of injury descending stairs while at work.

The Court noted that while it was clear that the claimant was injured at work descending stairs during a security check that does not in and of itself establish that the claimant’s injury occurred in the course of employment. The Court found that the Commission’s determination that the claimant’s injury resulted from a risk source to which he was equally exposed to in his nonemployment life was supported by sufficient, competent and substantial evidence and therefore confirmed the Commission’s decision.

CNA’s Bilateral Carpal Tunnel Syndrome Compensable Despite Other Risk Factors

Hill v. Caring Hearts Inc and Guarantee Insurance Company and Liquidation c/o Missouri Insurance Guaranty Association, Injury No. 11-109031

FACTS: The claimant was a certified nurse’s aide and had worked for the employer since 2005 or 2006, with her last day of work being July 3, 2012. The claimant began working as a bath nurse and homemaker for the elderly and disabled and began experiencing problems with her hands during 2008. As her workload increased, requiring her to work, at times, 14-hour days, seven days a week, the claimant’s hands became increasingly symptomatic and weak.

She treated with Dr. Dysarz, who diagnosed carpal tunnel syndrome March 29, 2011. Then on June 17, 2011, Dr. Dysarz diagnosed right cubital tunnel syndrome and recommended an EMG which revealed prolonged median nerve latencies at both wrists, consistent with bilateral carpal tunnel syndrome.

In May of 2013, the claimant was evaluated by Dr. Brown, who opined that her work-related activities were not the prevailing factor in causing her carpal tunnel syndrome. He attributed the cause of her carpal tunnel syndrome to other risk factors including a history of Ehlers-Danlos Syndrome, which is a condition in which connective tissues may be loose and more elastic than normal; being over the age of 50; and the possibility of rheumatoid arthritis. The employer then refused to authorize any further treatment.

The claimant, having no insurance coverage, was unable to work a bath nurse or a homemaker and struggled to obtain treatment for the injury. She ultimately obtained Social Security Disability with Medicaid coverage. She began treating with Dr. Osei, who performed surgery for right carpal tunnel release and excision of a volar ganglion cyst on June 30, 2015. Dr. Osei performed a left carpal tunnel release on August 4, 2015.

The claimant was subsequently evaluated by Dr. Berkin, who opined that her job duties were the prevailing factor in causing the bilateral carpal tunnel and ganglion cyst to her right wrist.

The ALJ found that the claimant’s job duties were the prevailing factor in causing the resulting medical condition and disability and the treatment that she underwent was related back to her job duties. He also awarded 148 weeks of TTD or $118,260.28. He assessed 20% of the left hand, 25% of the right hand and a 5% load.

HOLDING: The Commission reviewed the evidence and considered the whole record and found that the Award of the ALJ was supported by competent substantial evidence and therefore, the Award and decision of the ALJ was affirmed.

Claimant Awarded Future Medical Treatment in Accordance with Expert Testimony

Fuwell v. Missouri Department of Corrections, Central Accident Reporting Office and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Injury No. 13-087198

FACTS: On November 21, 2013, the claimant was performing his usual duties which included checking doors of the facility and while descending the stairs his boots, which were wet from walking outside, slipped out in front of him.

He was then referred by the employer to Dr. Taylor, who ordered an MRI and he was referred to Dr. Boutwell for pain management. The claimant also treated with Dr. Crabtree and Dr. Leonard who recommended conservative treatment. He then saw Dr. Robson, for an IME and he recommended surgery which he believed flowed from the work injury.

After a Hardship Hearing wherein the claimant was awarded treatment, he underwent that surgery and was placed at MMI with permanent restrictions. Dr. Volarich assessed 15% of the lumbar spine and 5% of the cervical spine. He also assessed pre-existing disability of 10% of the lumbar spine, 15% cervical spine, and 15% of the right knee. However he believed the claimant was perm total as a result of the last injury alone. He did recommend continuing medications.

Dr. Koprivica performed an IME at the request of the employer and he believed that the claimant was perm total as a result of the last injury along with his pre-existing conditions.

Mr. Eldred believed that the claimant was permanently and totally disabled as a result of the work injury. Mr. Hughes testified that the claimant was not permanently and totally disabled but if it was found that he was, it would be due to his pre-existing conditions in combination with his primary injury.

The ALJ concluded that Dr. Volarich and Mr. Eldred were credible and therefore found that the claimant was permanently and totally disabled and the employer/insurer were responsible for all compensation and the Fund had no liability. The ALJ also found that the claimant was entitled to future medical treatment, as the authorized treating physician, Dr. Robson, and Dr. Volarich both identified the need for ongoing prescription medication and Dr. Volarich also identified other treatment such as a future need of the replacement of the orthopedic fixation. The employer then appealed.

HOLDING: The Commission found that the Award of the ALJ was supported by competent and substantial evidence and therefore, the Commission affirmed the Award and decision of the ALJ.

Dependents Denied Benefits as No Evidence in Award Showing Dependency of Wife or Children On Date of Injury

Lawrence, II (Deceased), Lawrence, Lawrence and Lawrence v. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Case No. WD83123 (Mo. App. 2020)

FACTS: The claimant filed a Claim for work-related injuries on May 11, 2005. He settled his claim with his employer and then went to a hearing against the Fund and the ALJ denied benefits.   The Commission affirmed but the Court of Appeals reversed and awarded PTD benefits. On March 11, 2019, the claimant passed away from causes unrelated to his work-related injury. On May 16, 2019, the claimant’s wife and children filed a Suggestion of Death and Motion to Substitute Parties with the Commission claiming that each were dependents of the claimant at the time of his work-related injury and, upon his death, were entitled to his PTD benefits. The Commission denied the Motion to Substitute, finding that the claimant’s wife and children’s status as dependents at the time of the claimant’s injury had not been established in the Final Award.

HOLDING: The claimant’s wife and children then appealed. The Court noted that the sole issue was whether the dependent status of the claimant’s wife and/or children at the time of the 2005 injury was established as a matter of law in the Final Award. The Court noted that the ALJ issued a forty-nine page award on November 20, 2013 and the only references to the claimant’s wife or children could be found in a two-page section addressing the claimant’s current activities. The Final Award noted that the claimant’s wife performed house cleaning activities and that he would drive his daughters to school. The Final Award never identified the wife or daughters by name. The Court noted that at most, the Final Award established that at the time of the hearing before the ALJ in 2013, the claimant lived with his wife and two daughters. These findings in no manner establish “as a matter of law” that any of these individuals were dependents of the claimant at the relevant time, the claimant’s date of injury. Therefore, the Court denied the claimant’s wife and children’s Motion to Substitute and were denied benefits.

The Claimant Failed to Prove his Pre-Existing Disabilities Combined with His Work Injury Rendering Him PTD

Bennett v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund,

Case No. ED108713 (Mo. App. 2020)

FACTS: The claimant filed two claims against his employer, one relating to an injury that occurred on August 14, 2013 with respect to his right knee and the other relating to an injury to his left hand and ribs, which occurred on March 24, 2014. He did have a prior right shoulder injury in 1999 when he resolved for 25% disability. He settled both of his claims against the employer and proceeded to a hearing against the SIF for perm total benefits.

Following a hearing, the ALJ denied both claims against the Fund. The claimant appealed and the Commission affirmed the decision of the ALJ. The claimant again appealed.

HOLDING: The claimant argued that the Commission erred in denying him PTD benefits from the Fund because his injuries from his March 2014 incident, combined with his pre-existing injuries, made the claimant unable to compete in the open labor market. He furthered argued that the Commission’s decision was against the weight of the evidence and/or not supported by sufficient competent evidence. The Court disagreed noting that there was no evidence that the claimant’s primary March 2014 work injury, combined with his 1999 right shoulder injury alone, resulting in PTD. The Court noted that the claimant’s experts wrongly included pre-existing conditions that did not qualify for Fund liability under §287.220.3.

The claimant also argued that the Commission erred in denying his PPD benefits from the Fund, because his August 14, 2013 injury combined with his pre-existing injuries, resulted in a disability greater than the sum of their individual parts, but the Court again disagreed. The Court noted that Dr. Berkin, the claimant’s medical expert, never addressed how the work injury which occurred in August of 2013, specifically combined with his prior disabilities. Therefore, the Court affirmed the decision of the Commission.

Fund Found Responsible for PTD Benefits Due to No Medical Expert Testifying that Claimant PTD Due to Last Injury Alone

City of Jennings and Missouri Employers Mutual Insurance Company v. Williams, and Treasurer of the State of Missouri, Second Injury Fund, Case No. ED108393 (Mo. App. 2020)

FACTS: On September 7, 2010, the claimant was physically attacked by an inmate. She sustained physical injuries and also was treated for insomnia, anxiety, depression and anger as a result of the work injury. The claimant did have an extensive history of psychiatric issues, including witnessing her father abuse her mother and being raped by a family member as a young teenager. She had attempted suicide one time as a teenager. Further, in 2007 and 2008, she took a year leave of absence from the employer following a stress-induced mild stroke, stemming from a series of personality conflicts with various supervisors. The claimant agreed on cross-examination that she had experienced panic and anxiety attacks weekly since her teenage years through the work injury, which she had been able to deal with her on her own. She also agreed that she had experienced episodes of untreated depression since she was a teenager through 2007, for which she would have to call in sick to work, and that she had been unable to work due to depression for two weeks prior to her stress-induced stroke in 2007. Although she was receiving treatment for depression and anxiety between 2007 and 2010, she was able to complete tasks and leave the house alone. In the years leading up to 2010, she was on full duty with no restrictions. After the work injury, she had difficulty completing tasks, became nervous and fearful about leaving the house, especially alone, and was constantly checking to make sure doors and windows were locked.

The claimant submitted a report of Dr. Brockman, who opined that the claimant was PTD as a result of her work injury and her pre-existing psychiatric conditions. Dr. Bassett, testified on behalf of the employer and he believed the claimant had 40% psychiatric permanent partial disability, 75% of which was attributed to the work injury, and 25% of which was attributed to the pre-existing psychopathology.

The ALJ determined the claimant’s work injury resulted in her pathologies of PTSD and panic disorder with Agoraphobia, which taken in isolation rendered the claimant PTD. The ALJ acknowledged the claimant’s pre-existing psychiatric conditions but found she had been able to maintain work and conduct normal life activities before the work injury and therefore the employer was liable for benefits. The employer then appealed, and the Commission affirmed the Award and decision of the ALJ. The employer again appealed.

HOLDING: The Court found that the Commission’s conclusion that her PTD was entirely caused by the work injury was not supported by sufficient competent evidence. The Court noted that while the claimant’s work injury was indeed horrific, no medical expert testified that the work injury was the sole cause of the claimant’s PTD and the Commission gave no explanation for rejecting the undisputed medical evidence. Therefore, the Court found that the Fund was liable for a portion of the claimant’s PTD and reversed and remanded to the Commission.

Fund Liable for PTD Benefits as All Pre-existing Disabilities Can be Considered as  Claimant Had One Pre-existing Disability Which Met Fund Liability under §287.220.3

Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Parker, Case No. WD83030 (Mo. App. 2020)

FACTS: On March 8, 2014 the claimant sustained an injury to his right elbow. On June 18, 2014, the claimant filed another claim for an injury to his neck due to his repetitive job duties of heavy lifting and looking up on a repetitive basis to trim trees. He then had surgery for his right elbow on August 13, 2014 and thereafter was released to return to work without permanent restrictions on March 26, 2015. However he never returned to work full duty thereafter. He then underwent a cervical fusion on September 3, 2015 which he related back to his job duties and the June 18, 2014 claim. The claimant also had other pre-existing disabilities and injuries leading up to the 2014 claims.

Dr. Stuckmeyer assessed 30% disability to the shoulder and 35% of the neck due to the work injuries. He reviewed Mr. Dreiling’s vocational report and believed that the claimant was PTD as a result of the last injury alone. However, then he issued a subsequent report after reviewing additional information and believed that the claimant was permanent and total disability based on his pre-existing lumbar spine and knee conditions, his March 2014 upper extremity injury and the June 2014 neck injury.

The claimant settled his March 2014 and June 2014 injuries with the employer and proceeded to a hearing against the Fund for perm total benefits. The claimant’s attorney submitted the report of Dr. Stuckmeyer pursuant to §287.210 as well as the medical records the doctor reviewed. The Fund did not object to the admission of the reports of Dr. Stuckmeyer at the hearing but objected to the medical records attached to the report arguing that they did not include the proper medical records affidavits. The Fund argued that §287.210.7 applies only to the admission of medical reports and does not make the accompanying medical records admissible for evidentiary purposes. The ALJ overruled the Fund’s objection and admitted the exhibits and found the claimant was perm total and the Fund was responsible for benefits based on §287.220.2. The Fund appealed and the Commission affirmed. The Fund again appealed.

HOLDING: The Fund argued that it was incorrect to rely on §287.220.2 to determine Fund liability as it should have been based on §287.220.3 as the claimant’s primary injury was after January 1, 2014. The Court agreed. The Fund then argued that the claimant failed to meet his burden under §287.220.3 and therefore the case should be remanded back to the Commission. However the Court disagreed as they felt they had enough information to make a ruling.

The Court noted that the Commission found that the claimant did have a pre-existing condition which met Fund liability as he received a settlement of 25% of the shoulder which met the 50 week threshold and it was a direct result of work-related injury. Also the claimant sustained a subsequent compensable work injury, the neck injury. The Fund argued that the experts looked at the claimant’s prior lumbar spine and knee injuries when deciding that the claimant was PTD and since they did not meet the threshold for Fund liability they could not be included in determining whether the claimant was PTD.

The Court did not agree and concluded that as long as a claimant has a pre-existing disability that satisfies one of the thresholds in subsection 3 and the claimant has a qualifying subsequent primary injury than the Commission may consider less serious pre-existing injuries and disabilities as well as other characteristics of the individual in determining whether an employee is PTD. Therefore the Court concluded that since the claimant’s prior shoulder injury met the threshold for Fund liability his other pre-existing conditions could be considered, in this instance the claimant’s prior lumbar and knee injuries.

Finally with respect to the Fund’s argument that the medical records and reports attached to the medical report of Dr. Stuckmeyer should not be admissible, the Court did not agree and believed the Dr. Stuckmeyer’s complete medical report was admissible.

[Editor’s note: This matter has been transferred to the Supreme Court.]

Claimant Failed to Prove His One Qualifying Prior Disability and Work Injury Combined to Make Him PTD and Therefore Benefits From Fund Denied

Hammons v. Treasurer of State of Missouri as Custodian of the Second Injury Fund, Injury No. 16-074722

FACTS: On September 7, 2016, the claimant sustained an injury to his back and underwent a left L4 hemi-laminectomy with decompression of the L4-5 and resection of the synovial cyst on March 9, 2017. He never returned to work after work injury.

He did have serious pre-existing conditions. He had a prior work-related injury to his left foot which he settled for 12.5%. He also suffered a work-related meniscus tear of his right knee in 2014. He settled that case based on 5% impairment under Kansas law. He also suffered a work-related injury to his low back resulting in an L5-S1 discectomy. He was released from care with permanent restrictions.

He also suffered numerous injuries due to a non-work-related motor vehicle accident in 2010. These injuries included fractures to his ribs, scapula, as well as fractures of the T1, T6 and C5 levels of his spine. He also suffered a pneumothorax due to this accident.

The ALJ found that the claimant was PTD, however found that the Fund did not have liability as the claimant’s PTD was not a result of qualifying pre-existing injuries combined with the primary injury. The ALJ found that the only qualifying pre-existing condition under §287.220.3(2) was the claimant’s prior low back injury as he received a settlement of 20.5% of the body as the other injuries did not meet the 50 week threshold. Also there was no testimony that the claimant was PTD as a result of the work injury and only this pre-existing condition as the experts believed that he was permanently and totally disabled based on all of his pre-existing conditions. The claimant appealed.

HOLDING: The Commission affirmed the Award of the ALJ, denying compensation. The Commission noted that strict construction of §287.220.3(2) required the claimant to prove that he was PTD due to a combination of one qualifying pre-existing disability and a subsequent compensable work-related injury. The Court noted there was no evidence in the record that suggested that the claimant was PTD as a result of the combination of the primary injury with his sole qualifying pre-existing disability that related to the lumbar spine. Therefore, the Court affirmed and adopted the Award of the ALJ.

Claim Against Fund Denied as PTD Arose Solely From Work Injury

Howard v. Treasurer of State of Missouri as Custodian of the Second Injury Fund, Injury No. 15-049121

FACTS: On June 28, 2015, the claimant, a mortgage loan officer, went to his car to retrieve some files and while he was returning from the parking garage, a concrete slab fell from the ceiling and he was struck on the head. He developed constant headaches, dizziness and nausea, along with neck pain, returned to work for 4 days but stopped working due to difficulty reading and looking at the computer screen. He never returned to work thereafter.

Dr. Volarich assessed 40% disability to the body as a result of the work injury and the following pre-existing disabilities: 15% of each hand due to prior carpal tunnel; 15% of each elbow due to cubital tunnel and 15% of each foot due to tarsal tunnel syndrome. Dr. Bassett assessed 50% disability due to his psychiatric conditions, 10% due to pre-existing conditions and 40% due to the work injury.

The claimant settled with the employer and pursued perm total benefits against the Fund. The ALJ denied benefits based on the fact that the claimant was permanently and totally disabled as a result of the last injury alone. He did note that the psychiatric experts did agree that the claimant had pre-existing psychiatric issues but the claimant failed to show how these issues affected his psychiatric issues after the work injury. The claimant then appealed.

HOLDING: The Commission noted that Dr. Volarich, the claimant’s expert, issued physical restrictions that were attributable solely to the 2015 work injury. The Commission further noted that the vocational expert, Mr. Timothy Lalk, opined that Dr. Volarich’s specific restriction involving the claimant’s need for constant supervision in any attempt to perform any kind of work activities would by itself, render the claimant unemployable in the open job market. Based on this evidence, the Commission found as a factual matter that the claimant’s current condition was solely attributable to his June 28, 2015 work injury and that the Fund was not liable for the claimant’s alleged PTD. Therefore, the Commission affirmed and adopted the Award of the ALJ.

Employer Responsible for PTD Benefits After Right Shoulder Injury Despite Claimant’s Pre-existing Condition

Shield v. Lowes Center, Inc. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Injury No. 15-0101348

FACTS: The claimant, a 72-year-old employee injured his right shoulder and underwent a mini open rotator cuff repair, biceps tendinosis, arthroscopic decompression and excision of lipoma from the anterior lateral shoulder. He returned to work after his surgery, but could no longer work in the paint department and ended up working as a greeter but found that his right hand would swell after about an hour of working at the door. He retired on January 18, 2017 “mostly” because of his right shoulder.

At a hearing, an ALJ found the claimant PTD solely due to his December 23, 2015 primary injury. The ALJ noted that Delores Gonzalez opined that the work injury was solely responsible for his lack of access to gainful employment. The Judge further noted that June Blaine initially opined that the claimant was perm total as a result of the work injury in combination with her pre-existing conditions. However, she testified that Dr. Volarich’s restrictions of use of the claimant’s right upper extremity for activities of daily living only would render the claimant unemployable. The employer then appealed.

HOLDING: The Commission noted that the ALJ based her Award on competent and substantial evidence of the record and therefore, in light of the Commission’s deference to the ALJ weighing of the pivotal issue of medical causation, the Commission did not need to undertake an analysis of whether the claimant’s evidence in this case was sufficient to meet the criteria for PTD against the Fund. The Commission noted that an employer is liable for PTD that is solely attributable to the claimant’s compensable injury. Therefore, the Court affirmed and adopted the Award of the ALJ.

Due to Chronic Pain and Physical Impairment Claimant Found PTD as Result of Work Injury

Gilman v. Missouri American Water Company, Travelers Indemnity Company of America and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 11-020246

FACTS: In 1983, the claimant began working for the employer as a laborer digging ditches by hand and with a backhoe. He subsequently was promoted to construction foreman. On March 16, 2011, he was assisting in the repair of a broken water line when he inadvertently stepped into a deep hole with his right leg, jarring his back and wrenching his left leg behind him.

The claimant treated with Dr. Woodward, who believed that the work injury had caused lumbar radicular symptoms but noted that the claimant had multi-level pre-existing degenerative disc disease. He then saw Dr. Mace, who ordered a lumbar myelogram which showed an annular fissure and disc bulging at L4-5. Dr. Mace recommended no surgical intervention and returned the claimant to Dr. Woodward’s care. Dr. Woodward issued a final impairment rating on November 8, 2011, assigning 5% disability for the work-related condition and 5% for the pre-existing lumbar degenerative disc disease.

The claimant then treated on his own with multiple physicians, who all recommended against surgery. On February 29, 2012, Dr. Stephens wrote that the claimant was indefinitely unable to work. He thereafter continued to treat the claimant up to the date of the hearing with a significant amount of narcotics, as well as medication for high blood pressure, memory issues, sleep disturbance, blood clots, depression and restless leg syndrome.

After the work injury, the claimant performed light duty work for a few months until July 1, 2011, when he was terminated as the employer could no longer accommodate his restrictions. The claimant had not worked since.

The ALJ noted that after the work injury, the claimant returned on light duty but was released due to being unable to perform his regular job duties and at the time, the claimant had been employed by the employer for nearly 30 years. The ALJ also noted that the claimant continued to have chronic pain and physical impairment from the work injury. Therefore, the ALJ concluded that the claimant was permanently and totally disabled as a result of the work injury and therefore, the employer/insurer was liable for PTD benefits and determined that all issues relating to the Second Injury Fund were moot. The ALJ also found that the claimant was entitled to future medical care consistent with the opinion of Dr. Koprivica, who opined that it was reasonably probable that the claimant would have ongoing future medical needs including pain management, which the ALJ found credible. The employer then appealed.

HOLDING: The Commission found that the Award of the ALJ was supported by competent substantial evidence and affirmed the award of the ALJ.

Claimant’s Work as Hairdresser Prevailing Factor in Causing Mesothelioma

Hayden, Surviving Spouse of Marc Haden (Deceased) v. Cut-Zaven LTD and Papillon LTD, Case No. ED108695 (Mo. App. 2020)

FACTS:  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 he had used over the years. There is documentation that there were certain 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.

The claimant’s attorney obtained a report of Dr. Hyers who concluded that the employee’s mesothelioma was related back to his use of asbestos-containing hairdryers.

Cut-Zaven obtained a report of Dr. Barkman who did note the employee was diagnosed with mesothelioma but there was no comment regarding whether the disease was asbestos related. He did not believe that the employee’s employment as a hairdresser was the prevailing factor in the  development of his mesothelioma. He also noted that the employee’s hairdryers could have been asbestos free because only certain versions and serial numbers of the hairdryers contain asbestos.

The ALJ concluded that the employee did not meet his burden of proof regarding medical causation. The judge noted that the employee could not specifically recall the types of hairdryers he used. She also noted that Dr. Hyers’ conclusion that the employee’s condition was work-related was simply based on the employee’s deposition testimony. She found Dr. Barkman’s opinion more credible. She went on to note that the employee simply presented a version of events he believes could have happened. The employee could have owned the specific serial numbers and models containing asbestos and it is also possible that he could have used one of the serial numbers that did not contain asbestos. She noted that what “could” have happened is not competent and substantial evidence of what did happen. There was no testimony confirming the employee was ever exposed to any of the specific models of asbestos-containing hairdryers during any particular time with any of the named employers. She noted that the employee’s testimony lacked specificity required to prove his claim, and therefore the claim was denied. The claimant appealed.

The Commission affirmed with a supplemental opinion. The Commission noted that the ALJ denied the claim based on a finding that the opinion of Dr. Barkman was more persuasive than that of Dr. Hyers and they were not inclined to reverse the determination to deny the claim on the issue of medical causation. However, they provided a supplemental opinion with respect to the proper burden of proof in occupational disease claims. The Commission noted the case law states that the claimant is not required to present evidence of specific exposure to an occupational disease in the workplace but rather is required to submit medical evidence establishing a probability that working conditions caused the disease. The Commission noted that despite the ALJ’s comments regarding specificity, they were confident that she properly understood the relevant factual and legal issues in the claim and agreed that the testimony of Dr. Barkman was more credible, and therefore affirmed the decision of the ALJ. The claimant appealed.

HOLDING: The claimant argued that the Commission acted without or in excess of its powers because it failed to conduct its medical causation analysis under the correct standard by adopting Dr. Barkman’s opinion that the claimant’s employment was the prevailing factor in causing his mesothelioma. The Court agreed noting that Dr. Barkman based his opinion on the fact that there were no studies out there definitively showing that all mesotheliomas associated with hairdressing are associated with asbestos exposure. The Court noted that the claimant does not have to prove by a medical certainty that his or her injury was caused by an occupational disease but only that there was a probability that the working conditions caused the disease.

The claimant also argued that the Commission’s determination that the claimant’s employment as a hairdresser was not the prevailing factor causing his mesothelioma was not supported by sufficient and competent evidence and the Court agreed. The Court noted that Dr. Barkman’s own testimony supports the conclusion that in all probability the primary factor causing the mesothelioma was the claimant’s employment-based exposure as opposed to other factors, as Dr. Barkman testified that the claimant was exposed to airborne asbestos through his employment and hairdryers admitted asbestos particles. Also, the doctor testified that even brief or low-level occupational exposure can cause mesothelioma.

The claimant also argued that the Commission’s determination that the claimant’s date of injury was November 2013 which is when he initially had chest discomfort was not supported by sufficient competent evidence. The Court noted that 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 claim. The Court noted that in this case the claimant was not diagnosed with mesothelioma until June 26, 2014 and therefore that was the proper date of injury.

The Court concluded that the claimant’s employment as a hairdresser was the prevailing factor in causing his mesothelioma and the correct date of injury was June 26, 2014. The Commission’s Award was reversed and remanded to the Commission.

 

 

                                                      Simon Law Group, P.C.

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

                                                              314-621-2828

 

                      MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                                      April 2020 – June 2020


Court Found Civil Procedure Rule Regarding Time Limit For Substitution of Parties Did Not Preclude Final Award

Butterball, LLC v. Madeleine Dobrauc and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36205 (Mo. App. 2020)

FACTS:  The claimant alleged an occupational disease involving his right shoulder. He worked for the employer from 2006 to 2009.

The claimant filed a Claim in March of 2011 and a Hearing was held in April of 2017, at which time the ALJ found that the claimant sustained an occupational disease arising out of and in the course and scope of his employment. 

Employer then appealed and while the Award was still under review, the claimant died of health issues unrelated to his work injury.  The claimant’s counsel did not notify the Commission or employer’s counsel of the claimant’s death at Oral Arguments before the Commission in February of 2018 or any time before May 10, 2018 when the Commission affirmed the ALJ’s Award. 

On June 25, 2018 employer filed a Suggestion of Death, stating that it had just become aware of the claimant’s death.  On September 25, 2018 employee’s attorney filed a Motion for Substitution of Party in which counsel informed the Commission the employee’s daughter had taken the deceased’s place. In October of 2018 the Employer objected to the Motion.

The Commission found that Rule 52.13 of Civil Procedure which requires a 90-day time limit for substitutions did not apply and therefore the Substitution of Party was timely. In March of 2019 the Commission received documentation showing a probate court had named Daughter as PR of employee’s estate on January 29, 2019. The Commission found the daughter to be Employee’s successor in interest. On June 13, 2019 the Commission unanimously adopted the award of ALJ. The employer appealed.

HOLDING: The Court of Appeals found that Rule 52.13 of Civil Procedure did not apply in Workers’ Compensation Cases unless a workers’ compensation statute implicates the application under a specific rule which was not the case here. When an employee dies while his/her claim is pending, the specific workers’ compensation statute that applies is section 287.580 which says nothing about a requirement to file a Suggestion of Death within 90 days of death or about the proceeding being dismissed without prejudice for failure to do so.  The Award was proper because all of the requirements of the statue were satisfied such that the employee’s claim did not abate, and the employee’s personal representative was presumably appointed correctly.

Commission Found Claimant’s Application for Review Deficient as Claimant Did Not Explain why ALJ Ruling was in Error

Hayes v. Sweetie Pies Upper Crust, Injury No. 17-061793

The claimant worked for employer as a cashier and server.  As a server the claimant worked at a steam table and while serving food, the claimant constantly felt steam on her face.  A dial controlled the temperature of the steam but the claimant did not adjust the dial.  The claimant testified corrosion from the water and steam from the steam table affected her throat and caused her to have a stroke. 

While at work in May of 2017, the claimant testified she had difficulty with speech and she lost feeling on her left side.  She reported her symptoms to a co-worker and later her friends noticed she had a slur.  The employer refused the claimant’s request for medical treatment and she treated on her own. 

The claimant proceeded pro se to a hearing at which time the ALJ found that the claimant did not establish that she sustained an unexpected traumatic event or unusual strain identified by time and place which produced at the time objective symptoms of injury from a specific event during a single work shift.  It was noted the claim form lists the date of accident as 2017 and therefore the claim does not identify a single work shift where a traumatic event or unusual strain occurred and produced objective symptoms.  The claimant presented no medical or scientific evidence that rust, corrosion or water from the steam table where she worked affected her throat and caused her to have a stroke.  Therefore, the ALJ denied compensation to the claimant.  The claimant then appealed. 

The claimant’s Application for Review alleged that she was disabled and has a walker, a leg brace and no feeling on her left side.  She further alleged that the ALJ did not understand her case.  The Commission noted that the claimant’s Application for Review was deficient because it did not explain why the ALJ’s finding on the controlling issues are in error.  The Commission affirmed the decision of the ALJ.

Employer’s Application for Review Dismissed Because Untimely Filed

Keeler v. Associated Wholesale Grocers and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36432 (Mo. App. 2020)

FACTS: The employer appealed a decision from the Commission dismissing the employer’s Application for Review as untimely.  An ALJ found in favor of the claimant and an Award was entered and delivered to the parties on March 26, 2019.  Enclosed with the opinion was a cover letter which stated if an Application for Review is not postmarked or received within 20 days of the above date, the enclosed Award becomes final and no appeal may be made to the Commission or to the Courts.  The 20-day time period expired on April 15, 2019.  Employer’s Application for Review was filed by the Commission on April 17, 2019. 

The Commission issued an Order to Show Cause why the Application should be dismissed as untimely.  The Order stated that: 1. The Commission received Employer’s Application for Review on April 22, 2019; 2. The Application was received via United States Postal Service; and 3. The markings on the envelope containing the Application bore a private postage meter mark that affixed a mailing date of April 17, 2019.  Employer argued that neither the claimant nor The Fund were prejudiced because they received copies of the Application on April 9, 2019.

HOLDING: The Court found that the Commission was correct when it decided that employer’s Application for Review was not timely as the Commission received the Application untimely as the time for filing an Application for Review had expired.

Claimant Entitled to Review of all Motions While Application Pending Before Commission

Rowe v. Southeast Missouri Residential Services, Southeast Missouri Hospital and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36275 (Mo. App. 2020)

FACTS: The claimant filed a Claim for Compensation against her employer and the Fund. The case was tried and was denied by an ALJ.  The claimant then appealed and while her Application was pending before the Commission, the claimant filed a series of four Motions to Submit Additional Evidence on February 27, 2019, April 5, 2019, April 9, 2019 and May 10, 2019.  The Commission then denied compensation, and in its Award, explicitly identified, addressed and denied the claimant’s first three Motions to Submit Additional Evidence but did not mention or address her fourth motion filed on May 10, 2019.  The claimant then appealed. 

HOLDING: On Appeal, the claimant contended that the Commission failed to properly apply the law – 8CSR20-3.030(2)(B) by failing to agree or deny her fourth Motion to Submit Additional Evidence.  The Court agreed that the Commission failed to properly apply the law and reversed and remanded the Decision back to the Commission with directions to consider and to enter an Order either granting or denying the claimant’s fourth Motion to Submit Evidence filed on May 10, 2019.

Payments Made on Kansas Claim Tolled Statute of Limitations to File Claim in Missouri

Austin v. AM Mechanical Services and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. WD82778 (Mo. App. 2020)

FACTS:  In November 2010, the claimant began working for employer as a sales and service manager.  The claimant was offered and accepted the job with employer in a telephone conversation which occurred while the claimant was at his home in Missouri.  However, the claimant worked at the employer’s warehouse in Olathe, Kansas.  On March 20, 2011, the claimant was injured while climbing a ladder to retrieve a part located on an upper shelf.  Employer paid TTD from March 20, 2011 through December 21, 2012. On February 28, 2013, a Kansas ALJ approved a settlement between the claimant, employer and its insurer. The claimant filed a Claim for Compensation in Missouri referable to the March 22, 2011 work accident. The claimant sought additional compensation from the employer and its same insurer in the amount of $11,314.38 representing the difference between the claimant’s rate in Kansas of $545.00 and the claimant’s rate in Missouri of $666.67.

The claimant then appealed to the Commission who affirmed the ALJ’s Award that the claim was barred by the statute of limitations. The claimant then again appealed.

HOLDING: The Court of Appeals found that the Commission erroneously misapplied the law when they denied the claim on the basis that it was untimely filed.  Since the claimant appealed within three years from the last payment made on his Kansas claim and these were payments that the employer would have been obligated to pay in Missouri, his Application was timely filed.

Application for Review Submitted by Fund Defective on Face and Therefore ALJ’s Ruling Stands

Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Mickelberry, Case No. WD82997 (Mo. App. 2020)

FACTS:  On February 6, 2015 the claimant injured his neck when picking up a 50-pound radiator.  Ultimately, he underwent a neck fusion surgery.  Despite the surgery, the claimant testified that he had constant neck pain even using narcotic pain medication. He was also diagnosed with bilateral carpal tunnel syndrome.  Medical testimony supported a finding that although the claimant’s carpal tunnel syndrome pre-dated his neck injury, it only became symptomatic as a result of a secondary crush to the nerves associated with his neck injury; a phenomenon known as “double crush”. 

He never returned to work following his neck injury and once his FMLA expired he was terminated by his employer.  Prior to his neck injury, the claimant had a history of chronic back pain and had changed job positions multiple times while working for the employer in order to accommodate his limitations.  The claimant filed an Amended Claim for Compensation seeking benefits from the Fund for permanent total disability alleging that his pre-existing disabilities combined with his neck injury rendered him PTD. 

A Hearing was held before an ALJ who found that the claimant was PTD as a result of his pre-existing disabilities and work injury.  The Fund then appealed and the Commission adopted the Award and Decision of the ALJ.  The Fund again appealed and the claimant filed a Motion to Dismiss for lack of subject matter jurisdiction based on an allegation of an improper Application for Review filed by the Fund with the Commission.

HOLDING: The claimant argued that the Commission lacked subject matter jurisdiction based on the fact that the Application for Review filed with the Commission by the Fund incorrectly referenced the facts of an entirely unrelated case.  Although the claimant framed his motion as a question of subject matter, the Court interpreted his motion as an argument that the Commission had no statutory authority to entertain the Fund’s appeal from the ALJ’s Award, to which the Court agreed. Additionally, the Fund’s Application for Review plainly failed to identify any of the ALJ’s findings and conclusions that were being challenged and thus failed to “state specifically” why the challenged findings and conclusions were not properly supported by the evidence. By submitting an Application for Review that substantively had nothing to do with the facts and the circumstances of claimant’s case, the Fund submitted an Application for Review that at best challenged the ALJ’s Award without any of the specificity required by law.  Since the ALJ’s Award was never properly challenged by the Fund, the Court set aside the Commission Award and adopted the ALJ’s Award.

Claimant Failed to Meet Burden of Proof to Show his Pre-Existing Condition Combined with the Work Injury Rendered him PTD

Guinn v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD35694 (Mo. App. 2020)

FACTS:  The claimant began working for employer in February of 1987.  He stopped working for the employer on March 1, 2006 when he was about 56 years old. 

In January of 2013, the claimant filed a Claim against the employer alleging hearing loss and tinnitus due to harmful noise.  The claim was settled on April 11, 2014 and on May 7, 2014 the claimant filed a Claim against the Fund for PTD based on the claimant’s hearing loss and tinnitus and his pre-existing Parkinson’s Disease. 

The claimant developed symptoms of Parkinson’s Disease as early as 2002 and was formally diagnosed in August 2003.  He continued to work for the employer until March of 2006 during which time the claimant was highly accommodated by the employer due to his declining health, tremors, weakness, lack of balance and difficulty concentrating. 

Upon leaving work in 2006, the claimant applied for Social Security Disability and was awarded the same on the basis of his Parkinson’s Disease. 

The Fund obtained a report of Dr. Parmet who opined the claimant was PTD due to the Parkinson’s Disease alone. Also, he opined that he claimant’s hearing loss and subjective complaints of tinnitus could have been secondary to his Parkinson’s Disease in whole or in part.  The ALJ found the Fund responsible for PTD benefits. The Fund appealed. The Commission found Dr. Parmet’s opinion persuasive. Therefore, the Commission denied the claimant’s claim against the Fund because the claimant did not meet his burden of proof to show that his Parkinson’s Disease combined with his work injury rendered him PTD.  The claimant then appealed. 

HOLDING:  The Court found that the claimant failed to convince the Commission that he was PTD due to a combination of his pre-existing Parkinson’s Disease and his primary hearing loss and tinnitus disability and therefore the Commission appropriately denied his claim against the Fund on that basis.  The burden of proving an entitlement to compensation is on the employee.  Additionally, the claimant failed to address or find any relevant legal authority supporting his claim.  Therefore, the Court of Appeals affirmed the Commission’s decision denying PTD.

Court Reversed Commission’s Decision That Claimant Not PTD Due to Not Meeting Burden of Proof

Williams v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED108262 (Mo. App. 2020)

FACTS: The claimant worked for the employer for approximately 24 years, from 1993 to 2008.  In 2005 the claimant suffered the first work-related injury to her neck, treated with Dr. Lange and had surgery, resulting in almost complete symptom relief and returned to work full duty.  In 2008 the claimant was again injured and treated with Dr. Raskas and underwent an MRI which revealed a cervical disc herniation at C6-7.  She underwent an injection and a selective nerve root block.  When that failed to provide relief, Dr. Raskas ordered an FCE which revealed that the claimant’s maximum work capacity was not up to the level required by her job duties.  Therefore, Dr. Raskas recommended another surgery.  The claimant underwent the surgery with Dr. Lange whom she had treated with previously. 

The claimant reported the second surgery did not ultimately help her symptoms and therefore she started treating with Dr. Coyle.  After examination, Dr. Coyle recommended further surgery and performed two surgeries one in 2010 and one in 2011.  Afterwards the claimant still had ongoing neck pain as well as weakness and numbness in her arm.  Dr. Coyle then re-evaluated the claimant in 2011 and placed permanent lifting restrictions of 20 pounds, and no pushing or pulling greater than 44 pounds. 

The claimant was evaluated by Dr. Berkin first in 2011 and again in 2018.  Dr. Berkin opined that the 2008 work injury was the prevailing cause of the claimant’s herniated disc at C6-7, the resulting surgeries and continuing pain and complications.  He rated the claimant as having 42.5% PPD referable to the 2008 injury.  He further opined that the claimant’s 2005 injury represented 30% PPD to the body as a whole.  In Dr. Berkin’s 2011 report, he implemented lifting restrictions and also noted that the claimant would need to pace herself during exertion and take frequent breaks.  The results of Dr. Berkin’s 2018 report were largely the same. 

The claimant also presented testimony of Mr. Dolan who concluded that the claimant was unable to perform any job in the open labor market and that no reasonable employer could be expected to hire the claimant in her present physical condition. 

The ALJ awarded the claimant PPD but denied the claim for PTD.  The ALJ found the medical evidence insufficient to establish total disability. The ALJ noted the Workers’ Compensation Act requires an individual’s disability “be demonstrated and certified by a physician.” The ALJ found Dr. Berkin had testified and reported extensively on the claimant’s work-related injuries and their resulting limitations on the claimant’s ability to function. However, Dr. Berkin came short of meeting the statutory requirement of demonstrating and certifying total disability.  The claimant appealed and the Commission affirmed the decision of the ALJ.  The claimant again appealed.

HOLDING:  The claimant made two claims of error on appeal.  First, she claimed the Commission misapplied the law by deciding Dr. Berkin’s testimony was statutorily deficient to sustain a claim of PTD.  Second, she claimed the Commission’s decision denying PTD and granting only PPD was against the overwhelming weight of the evidence and unsupported by substantial evidence.  The Court found that while Dr. Berkin did not use the “magic words” of “total disability” in his testimony, nothing in the record suggested he explicitly avoided doing so.  The Court noted that the Commission’s arbitrary and subjective characterization of Dr. Berkin’s testimony was not substantial evidence upon which it may have based its decision.  The Court also found the Commission’s decision to be against the overwhelming weight of the evidence and not supported by sufficient and competent evidence as it arbitrarily ignored the uncontroverted evidence presented by the claimant.  Therefore, the Court reversed the Commission’s decision and found that the Fund was liable to the employee for PTD benefits.

Assault Not Compensable as Claimant Provoked Assault

Ford v. Associated Electric Cooperative Inc., Injury No. 15-047091

The claimant testified by deposition prior to the hearing. On the date of the incident the claimant worked a 12-hour shift from 7 PM until 7 AM. His assignment was to obtain or reclaim coal. The claimant knew that the coemployee’s assignment for the evening was to run shift. He used a truck in the area to go reclaim the coal. He then returned the truck and drove to where the coemployee was working. The claimant testified that at that point he saw that the coemployee had already put his workpapers in the truck, in essence claiming the truck for his use during the work shift. The claimant waited for the coemployee to complete the work he was doing and then offered to let the coemployee drive the truck with the claimant as the passenger to drive around the property. According to the claimant while both men were seated in the truck the coemployee told him to get his own truck and cursed while he said it. The claimant then cursed back at him and then the coemployee exited the truck and started beating the claimant. He then described running away from the coemployee.

The coemployee also testified by deposition. He testified that his shift began at 7 PM and he put his workpapers in a truck and began working. The claimant then drove up in the truck he had put his papers in and the claimant got in the passenger seat and the other employee got into the driver’s seat and he told the claimant to get his own truck and the claimant became angry and was complaining about the personnel and management. The coemployee said that he did not want the claimant riding in his truck because all he did was complain the night before. The claimant became angry and cursed and the coemployee got out of the truck. He further testified that the claimant grabbed him by the collar and started pulling. The coemployee then said that he hit the claimant in self-defense.

Pursuant to statute an accident includes but is not limited to an injury or death of an employee caused by the unprovoked violence or assault against the employee by any person. Therefore provoked assaults are not compensable.

The ALJ noted that the testimonies of both men are consistent, including the coemployee exiting the truck after harsh words were exchanged. The judge noted that the coemployee’s testimony is that the claimant grabbed him by the collar and pulled him towards him and the claimant did not deny the accuracy of this testimony. Therefore the judge found that the claimant provoked the assault since he first laid hands on the coemployee. Therefore, the claim was denied.

The claimant appealed arguing that he never had the opportunity to respond to the testimony of his coworker because the coworker’s deposition was taken after the claimant’s deposition. The Commission found that the claimant could have easily testified and presented evidence at the hearing before the ALJ but chose not to do so. Therefore the Commission affirmed the ALJ’s decision.

Fund Liable for Benefits as Court Found Pre-Existing Injury Does Not Need to Be Symptomatic to Render Claimant PTD

Atchison v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36431 (Mo. App. 2020)

FACTS: On July 8, 2007 the claimant fell, sustaining a compensable injury to his back. He was found to have a herniated disc at L4-L5. He also suffered from both degenerative disc and degenerative joint disease from L2-L3 through L5-S1 which was a permanent and potentially disabling medical condition. Dr. Russell testified that the herniated disc from the work resulted in 35% disability and the pre-existing degenerative processes created 65% disability. The Commission determined that the claimant suffered from 35% PPD due to the compensable injury. They further held that the pre-existing condition, combined with the primary injury, rendered the claimant PTD.

HOLDING: The Fund then appealed arguing that the Commission erred when they found that the claimant was PTD as a result of a pre-existing condition combined with the work injury. The Fund argued that the pre-existing permanent partial disability was not symptomatic and therefore not compensable. However, the Commission specifically found, based on expert testimony, that the degenerative diseases were serious enough to be a hindrance or obstacle for future employment or re-employment. The Court held that there was no requirement in the statute that any of the pre-existing injuries be symptomatic. The requirement is simply that the Commission must find that the combination of the last injury and the pre-existing disabilities resulted in permanent total disability. The Court therefore affirmed the Commission’s Award. 

Fund Liable for Benefits After First MMI Release as Claimant’s Condition Did Not Improve with Subsequent Treatment

Williams v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED108319 (Mo. App. 2020)

FACTS: The claimant sustained a knee injury; the claim was denied and he treated on his own. In May 2002 the claimant underwent a repair of a torn medial meniscus. In August of 2002 he underwent a partial knee replacement. In August of 2003 the claimant underwent a revision of the previous knee replacement. On September 8, 2003 his knee surgeon released him from care. The claimant continued to seek treatment for ongoing left knee symptoms for the next several years and underwent a total knee replacement on April 8, 2016. He was released from care on May 9, 2016.

In the summer of 2006, the claimant attempted to return to work but his job duties increased the pain in his left knee, back and right foot. He did not return to any type of employment. The claimant sought disability from the Fund due to his working injury and his pre-existing condition concerning his right ankle. Dr. Cohen testified on behalf of the claimant and found that he was PTD due to his work injury as well as his pre-existing condition. Dr. Nogalski offered testimony at a deposition on behalf of the employer, which the Fund submitted as evidence at the hearing. He opined the claimant had reached MMI as of February 5, 2004 and that his work injury did not cause his disability. Mr. Lalk testified for the claimant and concluded that he would not be able to maintain employment in the open labor market. The ALJ concluded that his pre-existing disability combined with the work-related disability rendered him PTD. The ALJ found the claimant reached MMI on May 9, 2016 and found the Fund liable for benefits starting on that date. The claimant then appealed and the Commission affirmed. The claimant again appealed.

HOLDING: The claimant’s sole point on appeal was that the Commission erred in finding that he reached MMI on May 9, 2016 rather than September 8, 2003. The Court held that since both physicians testified that the claimant’s condition was of a permanent nature following his third surgery in 2003 and his condition did not improve after his surgery in 2016 he reached MMI on September 8, 2003 and benefits were to begin on that date.

Claimant’s Death Due to Hyperthermia Compensable

Halsey v. Townsend Tree Service Company, LLC and Ace American Insurance Company, Injury No. 16-053905

In July of 2016 the claimant, a 23-year-old was hired by Townsend Tree to perform tree trimming, brush and limb chipping/removal and other activities associated with the employer’s contract with a local electrical cooperative to remove obstacles around or near electrical lines. The claimant worked approximately ten hours a day from July 19-22, 2016. July 22, 2016 was one of the hottest days of the year in Southeast Missouri with heat index temperatures at 2p.m. of approximately 114 degrees. By that afternoon the claimant was suffering from heat exhaustion. Around 4p.m. he was asked to collect some caution signs and in the process of doing so he passed out. 911 was called and the claimant was taken to Poplar Bluff Regional Medical Center where he died the next day. The cause of death was listed as hyperthermia.

Dr. Deidiker, the forensic pathologist who conducted the claimant’s autopsy, was deposed at which time he testified that the claimant’s cause of death was hyperthermia or increased body temperature. Dr. Deidiker identified the claimant’s manner of death as “accident.”

Dr. Studyvin, the doctor who treated the claimant upon arrival to the ER, was deposed and testified that he believed the claimant’s cause of death was hyperthermia.

Dr. Jardine was deposed on behalf of the employer and opined that the claimant’s obesity contributed to the cause of his heat stroke.

Dr. Cantrell also testified on behalf of the employer and opined that the claimant’s occupational activities and the heat on July 22, 2016 were the prevailing factor to cause his heat stroke and ultimate death. It was also his opinion that the claimant’s underlying obesity was not the prevailing factor in the cause of his death.

The ALJ found that the claimant had sustained an accident arising out of in and in the course of his employment on July 22, 2016. Additionally, the ALJ found that Dr. Cantrell’s opinion was more persuasive than Dr. Jardine’s and therefore found that the claimant’s work accident on July 22, 2016 was the prevailing factor in causing the claimant’s death. The ALJ also found that the claimant’s obesity was not an idiopathic condition, ruling that an idiopathic condition qualifies for the exclusion only if it exposes the individual to a special risk of injury that only exists because of the presence of idiopathic condition in that employee. The employer then appealed.

The Commission affirmed the decision of the ALJ.

Last Employer to Expose Claimant to Asbestos Responsible for Benefits

Landis v. St. Luke’s Hosptial, Children’s Mercy Hospital and Truman Medical Center, Injury No: 17-098196

The claimant testified he was exposed to asbestos when he was employed at The Kansas City Star from 1968-1976, St. Luke’s Hospital from 1981-1985 and Children’s Mercy Hospital from 1985-1987. The claimant last worked for Truman Medical Center, however, was not exposed to asbestos at this facility.

Dr. Shen testified by deposition for the claimant that it was his opinion that it was more likely than not that Mr. Landis died of mesothelioma that was contracted and associated with exposure in his employment. He also testified that it was not unusual for 20 to 40 years to lapse between exposure and development of mesothelioma.

Mr. Kannenberg, an environmental scientist, testified by deposition on behalf of St. Luke’s Hospital on August 5, 2019. He concluded that the claimant was exposed to asbestos on every job he had as an operating engineer.

Dr. Kibby testified by deposition for Children’s Mercy Hospital and stated that the exposure likely would have been sufficient to explain the cause of his mesothelioma, since most, if not all mesothelioma is related to some type of asbestos exposure.

The ALJ concluded that the claimant filed his claim timely as his surgical report of his right lung containing his final diagnosis of mesothelioma was dated November 8, 2017 and his claim for compensation was filed December 22, 2017. He amended his claim on May 7, 2018 again within the two-year statute of limitations to add Truman Medical Center. 

With respect to notice, St. Luke’s Hospital was given notice on December 22, 2017 and Children’s Mercy Hospital as well as Truman Medical Center were given notice on May 7, 2018. Therefore, the employers met their burden of proving that the claimant did not provide timely notice of his alleged occupational disease. The burden then shifted to the claimant to prove the employers were not prejudiced by the delay. Due to the testimony of Dr. Shen who testified that a 30-day notice requirement was not feasible with asbestos-related lung diseases, because there was no known medical treatment or medication that would prevent the development of asbestosis and asbestos-related mesothelioma the ALJ concluded that the employers were not prejudiced by receiving notice in 44 days rather than 30.

The ALJ further concluded that the claimant’s son proved that the claimant sustained an occupational disease resulting from his exposure to asbestos in his employment causing his mesothelioma and death. The ALJ found the testimony of Dr. Shen and Mr. Kannenberg credible and that the evidence supported their testimony.

Finally, the ALJ relied on 287.063 which states that the last employer to expose the employee to the hazard of the occupational disease prior to evidence of disability is liable, regardless of the length of time of the last exposure. As the claimant worked for Children’s Mercy Hospital from 1985-1987, they were the last employer to expose the claimant to the hazard and exposure to asbestos. Therefore, they are liable for medical bills and benefits. Children’s Mercy Hospital then appealed.

The Commission affirmed the decision of the ALJ.

Claimant’s Work as Hairdresser Not Prevailing Factor in Causing Mesothelioma

Hayden, Deceased and Hayden v. The Cut-Zaven and Papillon, Injury No. 14-103077

FACTS:  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 he had used over the years. There is documentation that there were certain 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.

The claimant’s attorney obtained a report of Dr. Hyers who concluded that the employee’s mesothelioma was related back to his use of asbestos-containing hairdryers.

Cut-Zaven obtained a report of Dr. Barkman who did note the employee was diagnosed with mesothelioma but there was no comment regarding whether the disease was asbestos related. He did not believe that the employee’s employment as a hairdresser was the prevailing factor in the  development of his mesothelioma. He also noted that the employee’s hairdryers could have been asbestos free because only certain versions and serial numbers of the hairdryers contain asbestos.

The ALJ concluded that the employee did not meet his burden of proof regarding medical causation. The judge noted that the employee could not specifically recall the types of hairdryers he used. She also noted that Dr. Hyers’ conclusion that the employee’s condition was work-related was simply based on the employee’s deposition testimony. She found Dr. Barkman’s opinion more credible. She went on to note that the employee simply presented a version of events he believes could have happened. The employee could have owned the specific serial numbers and models containing asbestos and it is also possible that he could have used one of the serial numbers that did not contain asbestos. She noted that what “could” have happened is not competent and substantial evidence of what did happen. There was no testimony confirming the employee was ever exposed to any of the specific models of asbestos-containing hairdryers during any particular time with any of the named employers. She noted that the employee’s testimony lacked specificity required to prove his claim, and therefore the claim was denied. The claimant appealed.

The Commission affirmed with a supplemental opinion. The Commission noted that the ALJ denied the claim based on a finding that the opinion of Dr. Barkman was more persuasive than that of Dr. Hyers and they were not inclined to reverse the determination to deny the claim on the issue of medical causation. However they provided a supplemental opinion with respect to the proper burden of proof in occupational disease claims. The Commission noted the case law states that the claimant is not required to present evidence of specific exposure to an occupational disease in the workplace but rather is required to submit medical evidence establishing a probability that working conditions caused the disease. The Commission noted that despite the ALJ’s comments regarding specificity, they were confident that she properly understood the relevant factual and legal issues in the claim and agreed that the testimony of Dr. Barkman was more credible, and therefore affirmed the decision of the ALJ.