NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
April 2024 – June 2024
Injury is Not Compensable Because Work Was a Triggering or Precipitating Factor
Hasselbring v. Macon County Nursing Home District, Injury No. 21-079066
FACTS: In 2021, prior to the work injury, the claimant experienced pain in his left leg while walking for more than 30 minutes. Dr. Fernandez confirmed a very large aneurysm of the popliteal artery was thrombosed or occluded. He described the claimant as having a “chronic condition”. He recommended that the claimant undergo a bypass procedure, but he wanted to wait to see how his symptoms progressed.
On November 3, 2021, the claimant was working at Employer’s nursing home when a wheelchair ran over his left foot. That night, Dr. Fernandez performed emergency surgery to revascularize the claimant’s left leg to increase the blood supply. The surgery was unsuccessful, and the claimant’s left leg was amputated above the left knee.
Dr. Fernandez opined that the injury from the wheelchair was the prevailing factor causing acute ischemia or a lack of blood supply, and the wheelchair accident was the prevailing factor in causing soft tissue injuries as well as the lack of feeling, coldness, and bruising of the claimant’s left leg.
Dr. Rao, on behalf of Employer/Insurer, provided his opinion that the diagnosis of thrombosed popliteal aneurysm, with acute on chronic vascular ischemia, was the natural progression of his preexisting condition. He opined that the prevailing factor of the claimant’s loss of limb was an occluded left large popliteal artery aneurysm. He stated there was a known risk that without a bypass this leads to distal ischemia and limb loss, which is exactly what happened to the claimant.
The parties proceeded to a Hardship Hearing before the ALJ who issued a Temporary or Partial Award determining that the claimant met his burden of proving that he sustained a work-related accident that caused a compensable injury to his left leg. The Employer/Insurer filed an Application for Review with the Commission.
HOLDING: The Commission found one point dispositive: the claimant’s work-related accident was a triggering or precipitating factor and not the prevailing factor in causing the claimant’s medical condition and disability. The Commission reversed the ALJ’s temporary or partial Award and issued its final award denying compensation.
The Commission noted that Section 287.020.2 RSMo, for the definition of “accident”, that “an injury is not compensable because work was a triggering or precipitating factor”. Also, Section 287.020.3(2)(a) states an injury shall be determined to arise out of in the course of employment only if: it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury. Section 287.020.3(1) states that injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.
Dr. Rao credibly and persuasively opined that the wheelchair accident was not the prevailing factor in causing the claimant’s preexisting condition to escalate to a level of disability. The doctor explained that if the claimant’s circulation had been normal, an injury from a wheelchair running over his foot “would have been treated with leg elevation, ice, and anti-inflammatories and not urgent thrombectomies in an attempt to get blood flow back into the foot.” The doctor testified that the wheelchair accident triggered or precipitated more ischemia to a foot that was already poorly perfused, and that it was enough to send him into a limb loss situation.
The Commission found that the claimant was involved in a work-related accident on November 3, 2021 when the wheelchair rolled over his left foot. However, based on the credible and persuasive evidence, they found the accident was not the prevailing factor in causing both his resulting medical condition and disability. The opinions of Dr. Rao were more credible and persuasive than those of Dr. Fernandez.
Therefore, the Commission found the November 3, 2021 wheelchair accident at work was merely a triggering or precipitating factor in causing the claimant’s medical condition and disability and therefore, not compensable. The Commission reversed the Judge’s Award.
The Commission also noted that the Tillotson case is not on point. In contrast to Tillotson, the evidence in this case established that the claimant did not sustain a compensable injury because the accident involving the wheelchair was not the prevailing factor in causing both his resulting medical condition and disability. Absent the requisite proof of a compensable injury, Tillotson does not support an Award against Employer/Insurer for the cost of past or future medical treatment.
Employer Did Not Waive Its Right to Select Medical Providers for Claimant’s Future Treatment
HeLmig v. Springfield R-12 School District, Case No. SD38181 (Mo. App. 2024)
FACTS: The claimant sustained an injury, and she was referred to Dr. Galligos for treatment and he then discharged her from care. Subsequently, the claimant contacted Employer and requested additional treatment, but Employer denied the request since Dr. Galligos had discharged her.
Because the claimant was still experiencing symptoms, she sought additional medical treatment on her own using her health insurance. Dr. Thompson diagnosed thoracic outlet syndrome and provided surgery for that condition.
At a Hearing, the ALJ found the claimant was entitled to unpaid medical expenses in the amount of $152,935.67 as well as future medical treatment. As to future medical treatment, the ALJ designated the claimant’s medical providers, including Dr. Thompson, as the authorized treating physicians.
On appeal, with respect to future medical, the Commission affirmed the ALJ’s finding that Employer was liable to provide and pay for future medical treatment reasonably required to cure or relieve the effects of the claimant’s injury. However, the Commission disagreed with the Judge’s implicit finding that Employer’s refusal to authorize medical treatment in the past justified mandating that future treatment may only be provided by or at the direction of the physicians Claimant had previously self-selected. Thereafter, the claimant appealed.
HOLDING: The claimant argued that the Commission erred in modifying the ALJ’s Award by ruling Employer had the right to select Claimant’s future medical providers. However, the argument failed because Section 287.140 says nothing about an Employer waiving its right to select medical providers. To the contrary, it states an Employer shall have the right to select the medical provider.
The Court noted that while an Employer that fails to provide treatment after being notified of a claimant’s injuries is liable for the cost of treatment provided by the claimant’s providers, there is no language in the statute that waives the Employer’s right to direct future treatment, and neither the Commission nor the Court is at liberty to read such language into the statute. The Court noted that “strict construction of a statute presumes nothing that is not expressed.”
Because the statute contains no language waiving the Employer’s right to direct future medical treatment, the Commission did not err in determining Employer has the right to direct future medical care.
Claimant Sustained Compensable Mental Injury Due to Actual Work Events That Would Have Caused Unusual and Extraordinary Stress to a Reasonable Highway Worker
Mantia v. Missouri Department of Transportation, Injury No. 08-096413
FACTS: In 2007, the claimant responded to an accident where a delivery truck driver lost control of his vehicle and was ejected from the truck. She and her crew were called out because there was orange juice, sour cream, and cottage cheese all over the highway. While walking near the scene of the accident, the claimant stepped on the victim’s teeth.
The claimant observed approximately 1,000 accident scenes during the course of her career with Employer. No party disputed the actual work events which occurred during her 20-year career as a highway worker. Eventually, the claimant began to suffer considerable psychiatric symptoms.
In September 2017, the Supreme Court of Missouri issued its opinion in the case which remanded the matter to the Commission for review of the objective standard for proof of extraordinary and unusual work-related stress. In December 2017, the Commission granted the claimant’s request to submit additional evidence and remanded the matter to the Division. In 2023, the ALJ conducted the remand Hearing and each party submitted one deposition exhibit.
HOLDING: After its review, the Commission found that based on the credible testimony of the claimant’s coworker, a former Department of Transportation maintenance superintendent, that the claimant responded to a substantially greater than average number of unusually disturbing accidents involving fatalities during her 20-year career as a highway worker. They found that the actual work events as credibly described by the claimant were so shocking that they would cause a reasonable highway worker extraordinary and unusual work-related stress.
Employer’s chief safety officer testified that highway workers commonly witness vehicle accidents and experience unpleasantness while at work. However, this does not address the inquiry required by Section 287.120, which is whether the actual events the claimant experienced were such that a reasonable highway worker would experience extraordinary and unusual stress. While commendable, Employer’s ongoing provision of training and resources to help employees cope with stressful events, this was irrelevant to the Commission’s determination that actual work events the claimant experienced would have caused unusual and extraordinary stress to a reasonable highway worker.
The Commission concluded that the claimant met her burden, and the Employer was responsible for PPD and future medical treatment.
Evidence of Extraordinary and Unusual Stress Must Meet Required Objective Standard
Boyer v. Taney County Animal Control, Injury No. 21-090237
FACTS: The claimant worked as a kennel technician for Employer. On December 3, 2021, while performing her work duties, a dog growled when the door opened and jumped up and knocked down a coworker onto her back. The dog then started “eating” at the coworker’s arms. As a result of this incident, the claimant alleged mental injury and PTSD.
A coworker, also a kennel technician, testified on the claimant’s behalf. While the coworker testified that the December 3, 2021 event played a role in her decision to quit her job, she acknowledged that there were a lot of other reasons for quitting. She did not testify whether she had previously witnessed animal attacks in the kennel. With respect to the events on December 3, 2021, the coworker testified that the event was a horrific scene in her mind and the attack caused her extraordinary and unusual stress.
The ALJ denied the claim against the Employer/Insurer.
HOLDING: The Commission stated, under Mantia, the objective standard for determining whether a claimant’s stress was compensable is whether the same or similar actual work events would cause a reasonable kennel technician extraordinary or unusual stress. The claimant did not present credible and persuasive evidence to meet that standard. To meet the objective standard, the claimant could have presented the testimony of a kennel technician “as to the circumstances that are experienced as part of the job in general” but the coworker’s individualized, subjective reactions to those circumstances were irrelevant.
The Commission concluded that there was no credible, persuasive and objective evidence that the same or similar actual events the claimant witnessed at work on December 3, 2021 would cause a reasonable kennel technician extraordinary and unusual stress. The Commission affirmed the Judge’s Award.
Medical Evidence in PTD Cases Must Be Credible and Persuasive
Locascio v. Groendyke Transport, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-104642
FACTS: On July 3, 2014, while working as a fuel tank driver, the claimant sustained an injury to his left shoulder. He subsequently underwent three surgeries for a rotator cuff tear. At trial, no party disputed that he was PTD. The Judge concluded that the most credible and competent evidence in the record demonstrated that his PTD is solely due to his July 3, 2014 work injury. The Employer/Insurer appealed.
HOLDING: The Commission noted that no medical expert found the claimant was PTD solely as a result of the primary injury until Dr. Stuckmeyer’s December 28, 2020 report, more than six years after his July 3, 2014 injury. The doctor wrote three earlier reports and in each of those concluded that the claimant was PTD as a result of the combination of significant preexisting disabilities together with the disability from the primary 2014 work injury. In the context of his three earlier reports, the Commission found Dr. Stuckmeyer’s December 28, 2020, revised “alternate” PTD causation opinion neither persuasive nor credible.
The Commission further noted that vocational expert Mr. Dreiling’s original November 22, 2016 opinion that Employee was PTD based on a combination of the preexisting disabilities along with the primary injury to be credible and persuasive. However, the vocational expert’s subsequent deposition testimony was tainted by the claimant’s attorney’s admission on the record that the new case law had prompted counsel to go in a different analytical direction. Also, the Commission was not persuaded by Mr. Cordray’s position that the claimant could not compete for employment in the open labor market due to “life factors” unrelated to the primary injury.
The Commission noted that no expert opined that the claimant’s PTD was attributable to a combination of one or more qualified preexisting disability and disability from the primary injury. Therefore, the Commission concluded that the Fund had no liability and modified the ALJ’s Award regarding Employer’s liability and awarded the claimant 35% of the left shoulder for permanent partial disability benefits.
Evidence Must Be Convincing that Claimant’s Combination of Qualifying Preexisting Disability and Primary Injury Rendered Claimant PTD
Casey v. Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. SD38016 (Mo. App. 2024)
FACTS: In 2016, the claimant sustained an occupational disease to his bilateral upper extremities, the “primary injury”. He settled the claim with his Employer for stipulated disabilities of 15% of each wrist and 15% of each elbow. He had previously settled a 2006 claim with the Employer for 10% of the right knee and a 2012 claim for 10% of the left wrist, 20% of the left knee, and 22.5% of the left ankle.
The claimant presented testimony from Dr. Volarich, who opined that the claimant was PTD as a result of the work-related injury leading up to June 20, 2016 in combination with his preexisting medical conditions. Ms. Shea agreed.
At the Hearing, the ALJ found the Fund liable for benefits. The Fund appealed. The Commission reversed and the claimant appealed asserting that the Commission erred in denying PTD in failing to consider the claimant’s experts’ opinions that his previous right knee disability was sufficient to meet the 50-week threshold requirement and combined with his primary injury to render Claimant PTD.
HOLDING: The Court noted that the claimant bears the burden of proving all elements of his claim. This includes not only establishing a prima facie case, “but convincing the fact-finder to view the facts as needed for Claimant to win.”
In its Final Award Denying Compensation, the Commission found that the credible, persuasive evidence demonstrated that the claimant had 32.5% PPD of the right knee (52 weeks) preexisting the 2016 primary injury. As that finding met the 50-week threshold required by Section 287.220.3, the question of whether the claimant could combine multiple preexisting disabilities to meet that 50-week requirement is moot.
The Court noted that Dr. Volarich and Ms. Shea both opined that the claimant was PTD as a result of the primary injury and his preexisting conditions. Dr. Volarich opined that Claimant was PTD “as a direct result of the work-related injury leading up to June 20, 2016 in combination with his preexisting medical conditions.” Ms. Shea similarly opined that Claimant’s “inability to be employed is the result of the primary work-related injury and preexisting injuries and conditions.”
The Commission’s resolution of the credibility and weight of conflicting testimony is within the sole purview of the Commission.
Because the claimant failed to convince the Commission that the combination of the claimant’s qualifying preexisting right-knee disability and the primary injury rendered the claimant PTD, the Court affirmed the Commission’s Final Award Denying Compensation.
Occupational Diseases Are Compensable Pre-Existing “Injuries” As Defined by Statute to Trigger SIF Liability for PTD
Treasurer of the State of Missouri-Custodian of Second Injury Fund v. Penney, Case No. WD86684 (Mo. App. 2024)
FACTS: The claimant had two prior work-related occupational disease injury claims. In June 2018, she underwent two surgeries for her low back including multi-level decompression and fusion. She settled for 12.5% PPD of the body. In February 2019 she sustained an occupational disease to her neck and upper back with protruding discs, but she declined surgery. The claim settled for 12.5% PPD of the body.
Her primary claim was a new work-related occupational disease in March 2019 for her bilateral upper extremities including right carpal tunnel and left ulnar nerve entrapment and underwent surgery.
Her physician opined that her work was the prevailing factor causing the March 2019 occupational diseases to her bilateral upper extremities. He also opined that claimant’s PTD flowed from the synergism of the global combination of disabilities from each of the occupational disease claims to the low back, cervicothoracic region, and both upper extremities. He further believed that the disability flowing from the 2018 and the February 2019 occupational disease injury claims would qualify under Section 287.220.3 to trigger Fund liability.
At trial, the ALJ found claimant’s expert opinions unrefuted and credible and concluded that claimant was PTD as a result of the combined effect of her disabilities and entitled to PTD benefits from the SIF. On appeal, the Commission affirmed the ALJ’s Award.
HOLDING: The Fund appealed, contending that the Commission misapplied Section 287.220.3 (2)(a)a(ii) by failing to strictly construe the statute when allowing preexisting compensable occupational diseases to satisfy category two, arguing that the plain text of category two excludes compensable occupational diseases by referencing Section 287.020, which outlines the compensability standards for accidents, and not Section 287.067, which outlines the compensability standards for occupational diseases. One statute excluded any occupational diseases except for otherwise provided under the statute, and another statute provided that an occupational disease is a compensable injury.
The Court found that the Commission did not misapply Section 287.220.3(2)(a)a(ii) or fail to strictly construe the statute when allowing preexisting compensable occupational diseases to satisfy category two, in that Section 287.020’s definition of “injury” encompasses occupational diseases provided in Chapter 287, as Section 287.067 of Chapter 287 defines compensable occupational diseases. Therefore, the Commission’s Award was affirmed.
Claimant Must Show Preexisting Disability Reaches Necessary Threshold for SIF Liability for PTD
Carroll v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 21-058799
FACTS: On June 12, 2023, the claimant settled the primary claim for the May 31, 2021 date of injury against Employer/Insurer for 17.5% PPD of each wrist. Also on June 12, 2023, the claimant settled his prior claim against Employer/Insurer for 25% PPD of the right knee and 16% PPD of the left knee for injuries suffered on or about October 31, 2020.
The claimant’s settlements with Employer/Insurer were on a disputed basis, as indicated by the language of each Stipulation. The bilateral knee injuries were due to occupational diseases, as found by the ALJ based on the entire record and the testimony of Dr. Volarich. At trial, the Judge denied PTD benefits against the Fund. The claimant appealed to the Commission.
HOLDING: The Commission affirmed the Award and Decision of the ALJ. Because the primary injury occurred after January 1, 2014, the criteria set forth under Section 287.220.3(2) RSMo applied to establish a compensable claim against the Fund. Under Section 287.220.3, claimants must meet two conditions to make a compensable PTD claim against the Fund. Under the first condition, the claimant must have at least one qualifying preexisting disability, which must be medically documented, equal to at least 50 weeks of PPD, and meet one of the four listed criteria in Section 287.220.3(2)(a)a(i)-(iv). Nonqualifying preexisting disabilities cannot be considered. The Commission noted that Missouri courts have held that while a settlement with the Employer does not bind an ALJ or the Commission, it “does serve as relevant evidence of the nature and extent of Employee’s permanent partial disability attributable to the primary injury.”
In this case, based on the credible and persuasive evidence presented, including the settlement agreement between the claimant and Employer/Insurer, the Commission found the claimant sustained 17.5% PPD of each wrist as a result of the May 31, 2021 primary injury and preexisting disability of 25% PPD of the right knee and 16% PPD of the left knee. They did not find Dr. Volarich’s description of the claimant’s present complaints or PPD rating to be credible and persuasive, as it far exceeded the amount of PPD agreed upon by the claimant and Employer/Insurer. The Commission was more persuaded by the evidence of disability agreed to by the claimant and Employer/Insurer. They were not persuaded that the disputed nature of the claim was a compelling reason to deviate from the below-threshold PPD agreed to in the settlement just three months before the Final Hearing was held.
Because the claimant
failed to demonstrate any pre-existing disability met the 50-week threshold,
his claim for PTD failed. The Commission noted that while the preexisting
bilateral knee injuries were compensable as occupational disease claims, the
finding is moot as they found the claimant failed to meet his burden of proof
and persuasion that either knee met the 50-week threshold to trigger Fund liability. The Commission affirmed the Judge's Award regarding the absence of Fund liability.
Untimely Notice of Appeal Dismissed
Godfrey v. Metropolitan St. Louis Sewer District, Case No. ED111833 (Mo. App. 2024)
FACTS: On January 11, 2023, the Division entered an order dismissing the claimant’s claim with prejudice for failure to prosecute, finding “Claimant did not show good cause why [her] claim should not be dismissed”. Eight days later, on January 19, 2023, she filed a timely Application for Review with the Commission asserting her claim should not have been dismissed because there were alleged irregularities.
On May 24, 2023, the Commission entered its Decision affirming the Division’s Dismissal. On June 13, 2023, the claimant filed a Motion for Reconsideration with the Commission asserting her claim should not have been dismissed because: (1) there were alleged irregularities with the Division’s December 2022 Notice and the January 2023 Hearing Notice; and (2) Chapter 287 does not support a finding that she failed to prosecute her claim.
On June 22, 2023, the Commission entered an Order denying her Motion for Reconsideration. The claimant then filed her Notice of Appeal with the Commission on June 26, 2023, asserting she was appealing the Commission’s May 24, 2023 Decision affirming the Decision of the Division. Thereafter, Employer filed a Motion to Dismiss the claimant’s appeal on the grounds that the Court lacked appellate jurisdiction because the claimant’s Notice of Appeal was untimely pursuant to Section 287.495.1.
HOLDING: Before the Court could consider the merits of the claimant’s points on appeal, the Court had to determine whether the Employer’s motion was dispositive.
Section 287.495.1 provides a notice of appeal in a workers’ compensation case must be filed with the Commission within thirty days from date of the Commission’s Final Award. In this case, the Commission’s May 24, 2023 decision Affirming the Decision of the Division was a Final Award.
Although the claimant filed a Motion for Reconsideration after the Commission’s May 24, 2023 decision, her filing of the Motion did not extend the aforementioned statutory deadline for filing the Notice of Appeal under the circumstances of the case.
Employer’s Motion requested dismissal of the claimant’s appeal, asserting that the Court lacked appellate jurisdiction. Employer’s motion argued the claimant failed to file a timely notice of appeal as to the Commission’s May 24, 2023 Decision and that the Claimant’s motion for reconsideration did not extend the deadline for filing the Notice of Appeal. For that reason, the Court found that the Employer’s argument had merit and dismissed the claimant’s appeal for lack of jurisdiction.
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
January 2024 – March 2024
Expert Must Consider Only Qualifying Pre-Existing PPD
Emerson v. Prestressed Casting Co., & Second Injury Fund, Injury No. 18-08559
FACTS: The claimant sustained three prior injuries to his low back. His first low back injury was on May 8, 2012. The MRI showed a small central zone protrusion at L3-4, a central and pericentral zone disc protrusion and annular fissure at L4-5, with mild lateral recess stenosis. The claimant was discharged with a 0% rating and return to full work without restrictions.
His second prior injury was on April 13, 2013. Dr. Crabtree performed a hemilaminectomy and microdiscectomy at L5-S1. The claimant subsequently returned to full duty work without restrictions.
The claimant’s third injury was on December 29, 2014. Dr. Chabot performed surgery which included partial facetectomies and foraminotomies at L4-5 and L5-S1, fusion at L5-S1, and insertion of pedicel screws and rods at L5-S1. After surgery, the claimant continued follow-up care with Dr. Chabot for continuing leg pain.
After reaching MMI following each of the three prior low back injuries, the claimant returned to work at full duty. Although Dr. Woodward provided job restrictions for 35-pound lifting, there is no evidence that the restrictions were followed.
On August 29, 2018, the claimant sustained his primary injury to his neck and low back. A lumbar spine MRI showed L4-5 lateral recess stenosis and facet joint arthropathy that had progressed since claimant’s post fusion MRI. The claimant then underwent a cervical fusion at C5-6 with Dr. Crabtree. Since the claimant’s cervical surgery in 2019, he was using a cane daily, his right leg had given out, he slept poorly, was dependent on pain medication and had significant limitations regarding his activities.
In his Award following the Hearing, the Judge found the employer/insurer solely liable for PTD because the employee worked without limitations before the August 29, 2018 primary injury, stating that “although Mr. Emerson suffered impairments before his last accident, he did not suffer significant consequences from his impairment, i.e. [prior] disabilities until after the last accident.”
The employer/insurer filed a timely Application for Review alleging that the Judge erred in making a distinction between impairment and disability in disregard to the prior settlement and erroneously interpretating 287.220 regarding the liability of the Fund.
HOLDING: The Commission analyzed and applied Section 287.220.3 (2) regarding the liability of the Second Injury Fund for permanent total disability claims. In summary, the statute states that the Fund is liable when an employee sustains a subsequent compensable work-related injury when combined with a preexisting disability equaling a minimum of 50 weeks of permanent partial disability results in permanent total disability.
In this case, only one medical expert, Dr. Volarich, addressed the effect of the claimant’s preexisting disabilities in combination with disabilities attributable to his primary injury. Dr. Crockett rated the claimant’s PPD as 20% of the body but did not distinguish preexisting disabilities from any disability relating to the primary injury. Dr. Volarich opined that the claimant had 60% preexisting PPD of the body rated at the lumbar spine.
The Commission concurred with Dr. Volarich’s opinion that qualifying pre-existing disability attributable to the claimant’s 2013 and 2014 compensable work injuries combined with disability from the claimant’s primary injury to render him permanently and totally disabled. Therefore, the Fund was liable for PTD benefits and the employer was liable for 35% of the body for the primary injury.
Employer Liable for PTD From Primary Injury Alone Despite Conservative Treatment
Balliu v. Konika Minolta Business Solution USA, Inc. & Second Injury Fund, Injury No. 15-085465
FACTS: The employee had an injury on May 6, 2015 and settled against the employer for 25% of the body for a strain on the right groin which was treated non-surgically. The employee went to a hearing against the Fund.
The claimant sustained two prior injuries. In 1999, he suffered a bilateral hernia which was surgically repaired. The claimant testified this happened in a work-related event but did not pursue Worker’s Compensation Benefits. Thereafter, he returned to his same job working full duty with no formal restrictions or accommodations although the claimant testified to some self-accommodating behavior to avoid further injury. Subsequently, in 2004, he sustained a right sided inguinal hernia that was not work related.
In his Award, the Judge stated that the burden of proving entitlement to compensation is on the claimant. In this case, the claimant was alleging that he was PTD due to a combination of injuries. To establish Fund liability, the claimant must demonstrate that the primary injury combined with the prior qualifying injury renders the claimant unemployable in the open labor market. The Judge concluded that the prior injuries did not qualify as preexisting disabilities. When the claimant returned to work after the 1999 injury, he returned to work full time with no restrictions. Furthermore, prior to the primary 2015 work injury, the claimant testified that he engaged in outdoor hobbies including bicycling 8 to 10 miles at a time twice a month, as well as hiking and other activities. The Judge found that the claimant did not meet his burden to establish liability of the Fund for PTD.
HOLDING: The Commission affirmed the Judge’s Award and decision but corrected his analysis with a supplemental opinion. The Commission noted that for there to be Fund liability, the first analysis is to determine the degree of disability from the last work-related injury. If that last work-related injury, independent and alone, renders the claimant PTD, neither the number of preexisting conditions nor their degree of disability is relevant and there is no Fund liability.
For that reason, the Commission found that the claimant failed to meet his burden of proof to establish liability of the Fund in this matter. Specifically, the claimant’s last accident of May 6, 2015, and the limitations and restrictions, including claimant’s need to recline multiple times per day up to 7 hours per day as a result of the last accident alone, and in isolation, are the most significant factors which rendered the claimant PTD as a result of the primary injury.
“Right to Control” Establishes Employment
Reyes v. Indios Painting, Injury No. 20-100084
FACTS: At the time of the Hearing, the sole issue to be resolved was whether there was an employer/employee relationship between the claimant and Indios Painting.
The claimant alleged that she worked as a painter for Indios Painting and was hired approximately three months prior to the accident date of May 11, 2020. There is little dispute that on May 11, 2020, the claimant was involved in a serious motor vehicle accident. Mr. Pacheco testified deposition that he previously owned and operated Indios Painting which was operated out of his home and that all employees of Indios Painting were not engaged in the actual business of painting with the exception of occasional touchup work. Also, he was not the owner of the van in the motor vehicle accident on the day in question. However, in the testimony presented, including that of Mr. Pacheco and the claimant, it describes oral contracts entered into with Indios Painting through Mr. Pacheco with various subcontractors including Wilder Landaverry.
The facts also showed that Wilder, as a subcontractor of Indios Painting, picked up the claimant and drove her and others to the job site and returned them at the end of the day. This exercise of the control and the nature of going and coming to jobs and being in a vehicle arguably owned and controlled by Indios Painting at the time of the accident satisfied the right to control test.
HOLDING: The Judge concluded that the claimant was an employee because she was employed by a subcontractor of Indios Painting and presumably the subcontractor possessed no worker’s compensation insurance. By law the statutory employer would step into the shoes for an uninsured subcontractor and for that reason, the Judge found that Indios Painting was the statutory employer of the claimant.
The statute regarding statutory employment states: “Any person who has worked on under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employee and should be liable under this chapter to such contractor, his subcontractor, and their employees when injured or killed on or about the premises of the employer while doing work which is in the usual course of business.”
The evidence showed that Indios Painting hired subcontractors, directed and controlled where they worked, and provided the materials to allow them to perform that work. Also, the accident occurred in an Indios Painting van filled with painting supplies and equipment in which the claimant was picked up by Wilder and transported to the job. Therefore, the Judge found that Indios Painting was the statutory employer of Wilder Landaverry.
The employer/insurer appealed, and the Commission affirmed the Judge’s Award.
Must Consider “Usual Wages From Similar Services” For Volunteer Workers
Hayes v. City of El Dorado Springs, Case No. SD37841 (Mo.App.2024)
FACTS: The Commission awarded Susan Hayes (Wife) $40.00 per week in benefits for the death of her husband, Russell Hayes (Husband) who died while working as a volunteer fire fighter for the City of El Dorado Springs, Missouri. Wife appealed the decision.
Husband served as a volunteer firefighter and EMT for several decades. In 2018, he was fatally injured. Employer admitted that Husband and Wife were entitled to benefits. The only dispute was the amount of Wife’s weekly death benefit.
The only witnesses to testify at the Hearing were Wife and her two expert witnesses, a Lieutenant firefighter and Mr. Eldred, a vocational expert. According to Wife, Husband was on call 24 hours a day as a volunteer fire fighter for employer. Except for working nights as an in home aid, Husband would stop what he was doing to respond to calls. If the calls required Husband to act in some fashion, he was paid $10 per response inside the city limits and $20 per response outside the city limits. But if no action was required, his pay was reduced from $10 to $4 and from $20 to $6.
Mr. Eldred’s report included wage data for firefighters generally, including the mean annual salaries for full time firefighters nationally, within Missouri and within southwest Missouri along with a general firefighter job description as well as the employer’s volunteer firefighter job description.
The employer presented exhibits including a wage statement for Husband, Husband’s personnel file, the employer’s job description for volunteer fire fighters, Husband’s historical pay information, and a wage statement for the employer’s fire chief.
At Hearing, the ALJ found that while Husband was paid for per call responded to, the nature of responding to emergency calls was unpredictable. Also, the ALJ dismissed the testimony of Mr. Eldred as that testimony asked for an assumption that the services of a full-time career firefighter and by a rural volunteer firefighter were similar. Therefore, the ALJ concluded that there was no wage evidence that was introduced. Therefore, since Husband's compensation never exceeded $40 per week the ALJ concluded that the statutory minimum of $40 per week was appropriate. The Wife appealed and the Commission affirmed.
HOLDING: On appeal, Wife contends the Commission misapplied the law in determining Husband’s weekly wage. The Court reversed the Commission’s Award and remanded the case for further proceedings consistent with their opinion.
The Court stated that when the Commission found that Wife presented evidence of the “usual wage” of firefighters, they did not compare the services provided by such firefighters to services provided by Husband as a volunteer firefighter to determine whether those services are “similar” as required by Section 287.250.1 (6) which states that if the hourly wage has not been fixed or cannot be ascertained or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer.
The Court stated it was clear that the Commission did not consider the testimony of Wife’s expert testimony that as a general rule most firefighters have similar job expectations or that the job description of a firefighter and a volunteer firefighter overlapped.
The Court concluded that the plain language of Section 287.250.1 (6) clearly allows for a wage to be calculated for an employee who earned very little or even “no wage” by utilizing the “usual wage” paid to others. The Commission’s Award was revered and remanded for the Commission to determine whether a wage for the purpose of calculating compensation in the form of the “usual wage for similar services” can be determined under Section 287.250.1 (6).
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
October 2023 – December 2023
Ex-Spouse Does Not Qualify as Dependent for Death Benefits Under Statute
Virgel Bird (deceased), Karen Bird v. US Assets Recovery LLC, Case No. SD37966 (Mo. App. 2023)
FACTS: The sole issue in the case was whether Karen Bird (“Bird”), the ex-spouse of Virgel Bird (“Ex-Husband”) is a “dependent” under Section 287.240. Bird is disabled, unemployed, and receives Social Security disability benefits. Bird and ex-husband were married in 1987 and divorced in 2019. After the divorce, Bird and ex-husband continued to live together until ex-husband died on June 8, 2021, in an accident arising out of and in the course of his employment. While Bird and ex-husband lived together after their divorce, the two maintained a joint bank account from which their bills were paid. Bird never deposited any money into that account, and ex-husband paid the bills.
Following ex-husband’s death, Bird filed a claim for death benefits, alleging she was a dependent of ex-husband under Section 287.420. The Commission denied Bird’s petition for death benefits. Bird appealed.
HOLDING: On appeal, Bird argued that she was a “dependent” under Section 287.240(3)(b) because the 2017 amendment to the statute eliminated the requirement that a dependent be a relative by blood or marriage. According to Bird, the “[i] in all other cases” language of Section 287.240 (3)(b) created a catch all condition for all cases where a person is dependent upon the decedent. The Court stated that Bird’s argument had no merit because she read that clause in isolation ignoring the sentences before it and the clause that followed it. The phrase “in all other cases” referred to cases where the degree of dependency between a child and spouse and the decedent was not outlined in the previous sentences. It did not create a new category of dependence.
Paragraph (a) and (b) state two possible classes of dependents: children and spouses. Paragraph (b) described the condition in which children may qualify as a dependent. The language of Section 287.240 (3) was clear and unambiguous and requires that the dependent spouse be a wife or husband.
The Court affirmed the Commission’s decision because Bird does not qualify as a “dependent” under Section 287.240.
Claimant Must Present Persuasive and Credible Expert Testimony of Qualifying Preexisting Disability to Be Awarded PTD from Fund
McCoy v. Meridian Medical Technology and Second Injury Fund, Case No. ED1111299 (Mo. App. 2023)
FACTS: Prior to the primary injury, claimant suffered from multiple health conditions, including morbid obesity, low back pain, asthma, ventral hernias, and pulmonary disease. In 2006, ALJ awared claimant 17.5% PPD at the right wrist and 17.5% PPD of the left wrist for which the employer was liable.
Claimant’s primary injury occurred in 2017 when she was diagnsoed with “lateral epicondylitis” of the right elbow arising out of the course of her employment. The ALJ found the employer liable for 10% PPD of claimant’s right elbow. The ALJ also found claimant’s preexisting disabilities to her body satisfied the first condition of Section 287.220.3 RSMo 2016 so that the Fund was liable for PTD benefits.
The Fund appealed. The Comission adopted the ALJ’s finding that the employer was liable for 10% PPD for the right elbow injury. However, the Comission found that claimant was not permanently and totally disabled because claimant’s expert opinions were not credible or persuasive. The claimant appealed.
HOLDING: The Court affirmed the Comission’s decision. The Court stated that it is required to defer to the Comission’s credibility determination. The Comission found that the claimant’s experts, Dr. Volarich and Mr. Lalk, lacked credibility. Dr. Volarich testified that the claimant’s obesity was the cause of multiple factors rendering her 65% PPD of the body. The Fund did not introduce its own expert testimony. The Court pointed out that the Fund does not have the burden of proof and is not obligated to contradict claimant’s evidence. The Comission may believe some, all, or none of a witness’s testimony.
The Commission stated that Dr. Volarich’s opinion was neither persuasive nor credible. As a result, there was no credible expert testimony to support claimant’s claims regarding her body as a whole disability. The Comission was not required to believe testimony from Dr. Volarich simply because the Fund did not present a countervailing expert.
Thereore, the Court ruled that the Comission did not err in finding that claimant’s body as a whole disability was not a qualifying preexisting disability. The Court affirmed the Commision’s decision of awarding 10% PPD of the elbow against the Employer and did not award PTD against either the Fund or Employer.
Employer’s Untimely Answer Results in Admission of Factual Allegations but Not Legal Conclusions Regarding Issue of Prevailing Factor in Occupational Diseases
Collins v. Century Ready Mix Inc, Case No. WD86101 (Mo. App. 2023)
FACTS: The Commission found that claimant sustained a compensable occupational disease as a result of his exposure to repetitive trauma within the course and scope of his employment. The Commission also determined that the ALJ correctly ruled that the “Maximum Rate/Wage” listed on claimant’s claim was a statement of fact deemed admitted by Employer’s untimely answer. However, the Commission determined that Employer’s untimely answer to claimant’s claim did not preclude it from disputing the threshold issue of whether claimant sustained an occupational disease arises out of and in the course of employment. The Commission found that Employer’s defense was not without reasonable grounds, and therefore, denied claimant’s motion for costs and expenses.
HOLDING: The claimant appealed, arguing that the Commission erred in concluding that causation was a legal issue not admitted by a late answer. However, the Court disagreed and affirmed the Commission.
The statute states “Unless the Answer to Claim for Compensation is filed within 30 days from the date the Division acknowledges receipt of the Claim or any extension previously granted, the statements of fact in the Claim for Compensations shall be deemed admitted for any further proceedings.” (8CSR50-2.010.8)(B). Furthermore, the Court noted that the Compensation Act is an exclusive and complete code and provides its own procedures.
The Court stated that an Employer’s untimely answer results in the admission of factual allegations in the claimant’s Claim for Compensation such as: how the injury occurred, causation, average weekly wage, rate of compensation, and the date of the accident.
However, allegations in a Claim for Compensation which are legal conclusions are not deemed admitted by an Employer’s untimely answer. Whether an injury was in the course of employment is a legal question not admitted by an untimely answer. A disability percentage determination alleged within a Claim for Compensation is not deemed admitted nor is the Commission bound by it. The determination of degree of disability is within the exclusive province of the Commission. Also, the Court noted that the claimant’s allegations on the claim form that the claimant “was exposed to occupational disease/cumulative trauma in a degree greater than or different from that which affects the public generally and some distinctive features of his job which was common to all jobs of that sort” as well as statement that the claimant suffered injury “as a direct, proximate, and prevailing factor of his occupational position and duties” are legal conclusions and not factual statements that the injury occurred at work.
Therefore, the Court concluded that the Commission did not err in concluding that Employer’s untimely Answer did not preclude it from disputing the issue of whether claimant sustained a compensable occupational disease injury within the course and scope of his employment.
In conclusion, the Court noted that the Employer’s appeal was not frivolous as it presented a reasonable question on merit. Because the Employer was not frivolous, the Court denied claimant’s motion for damages due to Employer’s appeal.
Claimant Must Submit Evidence Constituting a Prima Facie Case Showing Incident was Compensable
Taylor v. General Motors LLC., Injury No. 20-078394
FACTS: This case at Hearing raised several issues arising out of an alleged work-related injury which the claimant, a factory assembly line worker, developed knee pain at work. The issues for determination were (1) accident or occupational disease arising out of and in the course of employment (2) medical causation, (3) additional medical care, (4) permanent disability.
The claimant testified that on July 20, 2020, he slipped on a nut and felt his left knee go out of socket and had pain but did not fall. He submitted in evidence Exhibit B, the plant medical records which showed that the claimant was seen on July 24, 2020, four days after the injury. The assessment was left knee pain.
Evidence was also presented at Hearing that since leaving the Employer, claimant had worked for three additional employers, FedEx, Toyota, and Chick-Fil-A. He had to stand throughout his entire shift for subsequent employers and testified that he had sharp pain while working for at least subsequent employer.
HOLDING: The ALJ noted that the claimant has the burden to establish that he has sustained an injury by accident arising out of and in the course of his employment, and the accident resulted in an injury. In this case, the question was whether the evidence established that the incident at work, specifically his slip on a bolt and having pain, was the prevailing factor causing both the resulting medical condition and disability.
The medical report, Exhibit B, simply reflected that the claimant was seen at the medical facility for the occurrence of left knee pain. There is no additional evidence to support a conclusion that claimant’s condition was sufficiently debilitating to constitute permanent or temporary disability.
After reviewing all the evidence, the ALJ found that the claim must be denied for failure to prove that it meets the statutory element of compensability. None of the evidence supported a conclusion that the claimant’s condition was sufficiently debilitating to constitute total disability, either permanently or temporarily, and the claimant failed to provide certification from a physician to prove disability under Section 287.190.6. Therefore, the claimant did not present a prima facie case that the incident was the prevailing factor causing any disability as defined by the worker’s compensation statute. The Commission affirmed the ALJ’s Decision. [Editor’s Note: This case was handled by our office.]
Parties Can Stipulate to Settlement and Modify the ALJ’s Award After Medical Fee Dispute Hearing
Orthopedic Ambulatory Surgery Center of Chesterfield v. ClayCo., Inc. and American Zurich, Medical Fee Dispute No. 15-02310
FACTS: A Medical Fee Dispute Evidentiary Hearing was held regarding the Application for Payment of Additional Reimbursement of Medical Fees filed by the healthcare provider. The Employer and its insurer were not present or represented at the Hearing despite being dually notified of the Evidentiary Hearing.
The healthcare provider offered into evidence an affidavit along with bills and medical records for treatment provided. The healthcare provider also asked that the judge take Judicial and/or Administrative Notice of the contents of the Missouri Division of Worker’s Compensation file in the matter.
The ALJ found that the employer and insurer were mailed the Medical Fee Dispute Notice of Evidentiary Hearing via certified mail by the Missouri Division of Worker’s Compensation notifying them of the Hearing. The USPS tracking results noted that the employer received the notice at their last known address on file.
After reviewing all of the evidence, the Judge found that the charges were fair and reasonable and finding no other factual or legal basis for denying the charges, ordered the employer/insurer to pay the healthcare provider $8,460.77.
The Judge also awarded interest. The Judge noted that the healthcare provider also requested recovery of interest based on the number of months from the date of the demand to the hearing. Therefore, the Judge ordered the employer and insurer to pay the additional sum of $2,601.68 or prejudgment interest.
HOLDING: The employer/insurer filed a timely Application for Review to the Commission. The employer/insurer provided the Commission an undated agreement signed by counsel for the healthcare provider and for the employer/insurer stating that the parties have reached an agreement requesting that the Judge’s Award be modified to reflect the settlement as to some of treatment. Therefore, the parties agreed that the remaining balance shall be modified to $4,755.77.
As the Commission agreed to modify the Medical Fee Dispute Award of the ALJ, the employer/insurer was now ordered to pay only the remaining amount of $4,755.77 plus the interest on that lower amount, $1,462.47, for a total of $6,218.24.
The Commission stated that the modification was incorporated in their final Award based on the agreement of the parties to the extent that it was not inconsistent with their Decision and Award.
Complex Issues Involving Medical Causation from Occupational Exposure Must be Based on Persuasive and Credible Expert Medical Testimony, Not Common Knowledge
Pierce v. Ford Motor Company, Injury No. 18-112200
FACTS: The issues in this case included whether the claimant sustained an occupational disease in the course and scope of his employment from exposures to chemicals at his place of employment, and if so, whether the alleged exposure was the prevailing factor in claimant’s diagnosis of Parkinson’s disease.
At Hearing, there was testimony that in 2012 and 2013, Ford built a new paint facility. During that time claimant and other maintenance workers would stand on a boom or scissor lift to cut down the old pipes and then haul the old pipes away. The contents of the pipes included stagnant paint, solvent, and water, which spilled onto them as they worked. The claimant spent a year removing the pipes. The claimant also testified that he lost his sense of smell shortly after he removed and replaced the pipes in the paint plant.
The claimant’s primary care physician referred him to Dr. Shorten for a neurological consultation in April 2018 at which time the doctor noted that the claimant’s tremors started about 9 months earlier in 2017. He diagnosed the claimant with essential tremor. The claimant’s expert witness, Dr. Koprivica opined that exposure to multiple chemicals, specifically including various solvents, was the prevailing factor in the claimant’s development of Parkinson’s disease. However, it was noted that Dr. Koprivica did not perform an analysis of the specific chemicals that the claimant was exposed to or the duration of that exposure.
Also, on behalf of the claimant, Dr. Pahwa also opined that the claimant did develop Parkinson’s disease and that environmental chemicals, genetics, and interactions between genes and chemicals, were responsible for Parkinson’s disease. However, Dr. Pahwa, conceded that he did not analyze any specific chemicals, solvents, or other sources that the claimant may have been exposed to while working for the employer. He admitted he did not analyze the duration of that exposure. He could cite no studies or scientific evidence in support of his conclusion.
Employer’s medical witnesses testified that they analyzed relevant studies regarding chemical exposures and Parkinson’s disease and noted that none of the studied chemical risk factors established with certainty causation of Parkinson’s disease.
HOLDING: The ALJ noted that the central issue in the case was one of medical causation. Due to the complex nature of the case and the differences of opinion between the experts, the Judge concluded that medical causation in this matter cannot be determined by common knowledge or experience but must be based on the opinions of medical physicians and other expert witnesses.
The Judge concluded that when supplied with multiple opinions upon reviewing the medical and expert evidence, she found that the expert opinions on behalf of the claimant were simply unpersuasive and not credible. In contrast, she found the experts submitted by the employer were credible and persuasive and their opinions dispositive.
Therefore, the judge found that the claimant failed to meet the requisite burden of proof to establish by a preponderance of the evidence that he sustained an occupational disease pursuant to Section 287.067.2 of the Worker’s Compensation Statute, specifically, the claimant did not initially provide evidence to prove by reasonable probability that his development of Parkinson’s disease arose out of and in the course of his employment.
The claimant appealed. The Commission affirmed the ALJ’s Award.
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
July 2023 – September 2023
Defense of Lack of Written Notice Fails when Employer Received Actual Notice
Goodwin v. Quik N Tasty Foods, Inc., Injury No. 20-094155
FACTS: The claimant worked for Quik Trip as a local delivery truck driver. On November 20, 2020, he suddenly began experiencing pain in his left knee following a misstep while taking a dolly down a ramp at a delivery stop. Upon returning to the warehouse, he discussed his injury with a fellow driver, Curtis Montgomery. Mr. Montgomery’s deposition was consistent with the claimant’s testimony. In addition, the claimant’s assistant, Mr. Waugh recalled that when they got back to the warehouse, the claimant complained of being sore.
Records from AT&T indicated that the claimant telephoned the Quik Trip transportation team leader, Marcus Hunter, on November 21, 2020. Also, AT&T records note a call from Mr. Hunter to the claimant on November 20, 2020. Per the claimant’s testimony, that call from Mr. Hunter was to advise him that an over-the-road route had become available to accommodate the claimant’s injury. The claimant drove that route on November 24, 2020.
On November 25, 2020, the claimant was seen by a physician. The claimant also testified that the next week he spoke with Quik Trip supervisor, Grant Bowman, to discuss his work status and injury. This was corroborated by the deposition testimony of Mr. Hunter. The claimant submitted a short term disability application, submitted by his physician. Prior to December 15, 2020, the claimant was contacted by a representative of Quik Trip to discuss his disability application. During his discussion, the claimant informed the representative that he had injured his knee while on the job and suggested that Quik Trip review its surveillance video to investigate the claim.
At the Hearing, the employer asserted its defense that the claimant did not timely provide notice in accordance with Section 287.420 which states that no proceeding for compensation shall be maintained unless written notice of the time, place and nature of the injury has been given to the employer no later than 30 days after the accident, unless the employer was not prejudiced by failure to receive the notice.
The ALJ concluded the employer was not entitled to a notice defense. It was noted that the claimant’s physician provided a short-term disability form to the employer four days after the injury and there was evidence that the claimant communicated by telephone numerous times with his employer regarding the injury. Furthermore, employer’s representative filed a Report of Injury claiming it was notified on December 21, 2020, which is 31 days after the alleged injury, although the employer had actual notice within days of the accident. Additionally, the claimant promptly sought medical evaluation and diagnosis which was provided to the employer. The employer appealed.
HOLDING: The Commission affirmed the Award of the ALJ. The Commission found, as a factual matter, that the employer received actual notice of his November 20, 2020 work injury when the claimant telephoned the employer’s team leader, Marcus Hunter, on November 21, 2020, to advise of the injury to his knee and to inquire about the availability of a less strenuous over the road trucking route for his next scheduled work day.
The Commission wrote that even assuming arguendo that the employer did not receive notice of the employee’s injury until December 21, 2020, as its January 21, 2021 Report of Injury alleged, the Commission found that the employer was not prejudiced by the claimant’s one-day late notice in that it was able to investigate the employee’s claim at the time as well as it would have been able to on December 20, 2020, the thirtieth day after the employee’s work accident.
Claimant Found PTD for Back Injury, in Isolation, Despite Subsequent Neck Injury
Watson v. Tuthill Corporation and Second Injury Fund, Case Nos. SD37293 and SD37294 Consolidated (Mo. App. 2023)
FACTS: In April of 2015, the claimant injured his lower back when he caught a falling motor. He underwent a fusion surgery in August 2015. On January 25, 2016, he returned to work full time but had difficulty getting up and down and could not do some things he could perform prior to his back injury like lifting heavy parts. On February 1, 2016, the claimant sustained a new injury to his neck. The neck injury was minor and he received only conservative treatment. In the 10 days after the neck injury, the claimant worked only two or three days per week. On April 23, 2016, he retired because he could no longer do the job. He did not reach MMI for the back injury until July 2016.
The claimant’s medical expert, Dr. Koprivica, opined that the work accident causing the back injury, in isolation, rendered claimant permanently and totally disabled. The employer’s expert, Dr. Belz, opined that neither the back injury nor neck injury, in isolation, met the requirements for permanent total disability, but when considered together with all prior injuries and non-work-related degenerative conditions, claimant was PTD.
The ALJ found the back injury, in isolation, rendered claimant PTD as of July 18, 2016, the date of MMI, and the Fund was not liable because claimant’s “last injury” was the back injury and not the neck injury. The Commission affirmed the ALJ. The employer appealed.
HOLDING: The Court affirmed the Commission’s decision finding the Award was supported by competent and substantial evidence. The ALJ considered and found Dr. Koprivica’s findings and opinions more credible than Dr. Belz. When a Judge expresses determinations regarding credibility, the Court is bound by these determinations.
Also, the employer’s argument, that the claimant could not have been PTD from the back injury alone because he returned to work, was not the proper standard. The Court stated that an employee can be PTD without becoming completely inactive or inert. A claimant who returns to work for an employer which accommodates the claimant’s disabilities will not preclude a finding of PTD because “the test is whether the claimant could compete in the open labor market.” Furthermore, there was no disability found as a result of the subsequent injury to the neck, and thus it was not the “last injury.” Therefore, there was no Fund liability.
PTD Awarded on Vocational Expert’s Opinion Based only on Qualifying Pre-Existing Disabilities
Obermann v. Second Injury Fund, Case No. ED111004 (Mo. App. 2023)
FACTS: The claimant’s claim for benefits against the Fund arose from a workplace injury to his right shoulder (the primary injury) on November 3, 2017. The claimant previously suffered five other workers’ compensation injuries, four of which were qualifying disabilities under Section 287.220.3 in that each exceeded 50 weeks of PPD. The non-qualifying disability was a 1995 injury to the left knee that resulted in less than 50 weeks of PPD.
The Commission denied the claim based on its finding that claimant’s medical and vocational rehabilitation experts included the non-qualifying 1995 left knee disability in their report and testimony. The Commission said “no medical or vocational expert opined that the employee’s PTD resulted solely from the combination of the November 3, 2017 primary injury and the pre-existing disabilities exclusive of disability attributable to his compensable 1995 left knee injury.” This disqualified claimant from PTD benefits from the Fund. The claimant appealed.
HOLDING: The Court reversed the Commission. It found that the Commission’s decision improperly considered Section 287.220.3 of the statute. The record demonstrated that claimant’s vocational rehabilitation expert repeatedly opined that claimant was unemployable, irrespective of his left knee disability, “based upon the limitations from the shoulder injury plus the pre-existing conditions that he had from his feet injuries.” The Court noted that this evidence directly refuted the Commission’s decision. The case was remanded back to the Commission with instructions to enter an Award in favor of the claimant against the Fund for PTD benefits since the Court concluded the undisputed expert testimony was that claimant’s PTD resulted from his primary injury combined with his qualifying pre-existing feet disabilities.
Second Injury Fund Required by Statute to Pay Medical Bills of Uninsured Employer but Claimant is not Entitled to Windfall from Medical Payment
State of Missouri, Ex Rel., Jeff Peters and John Newman v. Treasurer, State of Missouri, Case Nos. WD85719 and WD85777 (Mo. App. 2023)
FACTS: On November 14, 2006, Peters suffered severe injuries in a motor vehicle accident in the course of his employment. Peters filed a workers’ compensation claim against both his employer and the Fund through his counsel, Attorney Newman. His claim against the Fund was based on allegations that his employer was uninsured and that the Fund was responsible for his medical expenses under Section 287.220.5.
On December 2, 2011, the ALJ issued her Award findings Peters’s injury compensable, that his employer was uninsured, and that his employer had paid none of the medical bills at issue. The Award found that the fair, reasonable, and necessary charges resulting from his medical treatment was $1,142,169.57. The Award allowed Newton’s attorney’s fees “in the amount of 25% of all payments hereunder.” Finally, the Award ordered that interest shall be paid as provided by law. No Application for Review or appeal was filed and the Award became final.
After the Award became final, Peters filed an Application for Judgment on the Award in the Circuit Court under Section 287.500. On July 31, 2012, the Circuit Court entered judgment against the Treasurer of the State of Missouri (custodian of the Fund) in the amount of $1,142,169.57, with interest of 10% per annum from January 12, 2012. This judgment was not appealed and became final.
In September and November 2013, the Fund paid 9 of the 10 medical providers the total of their billed amount less Newman’s 25% attorney fee. They also paid the 10th medical provider approximately $100,000.00, and in exchange, the medical provider executed a release providing that the amount paid satisfied all liability. The Fund also directly paid Newman 25% of the amount paid to that medical provider, approximately $25,000.00. The payments made by the Fund did not include any amounts for interest. Peters and Newman did not consent to the payments to the medical providers.
On October 9, 2019, Peters and Newman filed for a Writ of Mandamus ordering the Fund to pay the outstanding judgment entered in their favor for the full amount of $1,142,169.57 plus interest as required by Section 287.220.
HOLDING: The Court noted that Peters did not dispute that the Fund paid his medical bills. There was also no genuine dispute that the 10th medical provider released Peters from liability. Pursuant to the Award and consistent with Section 287.220.5, the Fund paid Peters’s fair, reasonable, and necessary medical expenses, and he was released from all liability for them. The Award did not indicate that the Fund was not permitted to negotiate the existing unpaid medical bills. The Award did not order the Fund to pay any amount of medical bills directly to Peters.
The Court reasoned that to allow Peters to recover the full cost of his medical bills from the Fund would result in an impermissible windfall to him. The Court pointed out that pursuant to Section 287.220.5 the Fund has limited liability to employees who are not covered by insurance as required by law. The Statute provides that only an employee’s actual expenses be paid by the Fund. It does not direct the manner in which the funds withdrawn from the Fund are to be paid. Moreover, “An employee of an uninsured employer should not receive a windfall from the Second Injury Fund on account of his employer’s failure to carry insurance, as required under the law.”
With respect to the attorney’s fees, the Court noted that in compliance with the Award, the Fund paid Newman 25% of the full amount of the medical bills paid to each of the 10 medical providers. Accordingly, the Fund paid Newman everything he was due under the Award. Any additional payment to Newman would result in a windfall contrary to the language and intent of Section 287.220.5.
Settlement of a Primary Injury is Relevant Evidence in a Hearing Regarding Fund Liability for PTD
Huffman v. Second Injury Fund, Injury No. 15-073745
FACTS: In September 2015, the claimant sustained an injury to her shoulder. She obtained treatment, including surgery. She settled her primary case in January 2018 against the employer on a disputed basis for $23,500.00 representing 24% of the right shoulder.
At the Hearing against the Fund for PTD, the claimant testified that due to employer denying her work related accident, she developed a sense of distrust in people which increased her longstanding anxiety and depression for which she had been receiving treatment and medication for over 20 years. She testified that her current levels of anxiety were now worse than before her alleged work accident and she was unable to perform any type of gainful employment due to the combined effects of her psychological conditions, pre-existing chronic headaches, and diabetes.
The claimant was initially examined by Dr. Koprivica in March 2018 who provided a rating of 25% PPD of the right shoulder from the September 2015 work injury. He also identified several pre-existing conditions including chronic disabling headaches resulting in 15% PPD of the body and pre-existing diabetes for which he assigned 15% PPD of the body. He also found significant pre-existing psychological disability and recommended a mental health evaluation.
Dr. Jackson, a licensed psychologist, was of the opinion that claimant had a total psychological disability of the whole person of 45%, 25% pre-existing and 20% psychological disability to the work accident of 2015. Vocational expert, Mr. Cordray clarified that the claimant was PTD due to the combination of the right shoulder injury and psychological disability.
It was also noted that Dr. Koprivica opined in a supplemental report that claimant’s pre-existing psychological disability would qualify to trigger Fund liability, which in his opinion directly and significantly aggravated or accelerated the subsequent work related injury. He felt that as a result of the pre-existing condition and the work related injury, in combination, rendered the claimant PTD.
In his Award, the ALJ noted that the claimant’s allegations for PTD and Fund liability are based on the claimant’s alleged psychological condition in combination with her shoulder injury. However, the claimant needed to show that the work injury of September 2015 resulted in psychological injury, which when combined with her pre-existing condition aggravated or accelerated that condition and rendered her permanently and totally disabled. The Judge further noted that claimant’s decision to settle her claim for disability for only the right shoulder, and not any psychological disability was significant. Therefore, he found that the claimant failed to meet her burden of proof to established Fund liability and the claim against the Fund was denied. The claimant appealed.
HOLDING: The Commission noted that the Supreme Court of Missouri’s recent decision in the March case in 2022 held that the fact that the Fund did not offer contradicting evidence did not establish a “presumptively valid claim.” The Court stated that to establish a claim, the employee must meet not only their burden of production but also the burden of persuasion.
In this case, the Commission affirmed and adopted the Award of the ALJ noting that to establish that she was entitled to compensation from the Fund under Section 287.220.3, she was required to establish that a qualified pre-existing psychological disability combined with a psychological disability related to her September 2015 work injury to result in PTD.
The Commission noted that the Judge denied the claimant’s Fund claim because the testimony of the claimant and her experts failed to persuade him that she sustained any psychological disability related to her September 2015 work injury. The ALJ discredited the claimant’s medical and vocational expert views on the basis that their opinions were not sought until after she settled her claim against the employer based on 24% PPD of the right shoulder.
The Commission noted that Missouri courts have held that while a settlement with the employer does not bind an ALJ or the Commission, it “does serve as relevant evidence of the nature and extent of the employee’s permanent disability attributable to the primary injury.”
An Award for PTD Cannot be Based on Medical Opinions which Include any Non-Qualifying Pre-Existing Disabilities
Eckardt v. Second Injury Fund, Injury No. 15-105268
FACTS: At the time of the Hearing, the claimant was 74-years-old and retired, after working almost his entire adult life as an airplane mechanic. He had sustained several prior injuries for which Dr. Volarich provided ratings for pre-existing disability. The claimant’s last work accident, the primary work injury, occurred on October 3, 2015, when he was getting out of a van at work. The van started moving and he was struck by the door and fell, injuring his right shoulder, wrist and neck. As a result of this accident, he had a neck fusion.
In his August 16, 2018 report, Dr. Volarich provided a 35% PPD of the body rated at the cervical spine as a result of the October 2015 work injury. Dr. Volarich also provided several other ratings for pre-existing disabilities, including a 20% rating of the right upper extremity for a prior injury. He also opined, “Based on my medical assessment alone, it is my opinion that Mr. Eckardt is permanently and totally disabled as a direct result of the work related injury of 10-3-15 in combination with his pre-existing medical conditions.”
The ALJ concluded that the claimant had met his burden to prove that he is PTD from the combination of his primary work-related injury and his qualifying pre-existing injuries and, therefore, the Fund was liable for permanent total disability. The Fund appealed.
HOLDING: The Commission considered two points on appeal.
First, the Commission found that the claimant’s work related bilateral carpal tunnel syndrome, exceeding 50 weeks of disability in each hand, qualified as a pre-existing disability under Section 287.220.3(2)(a)(ii). The Commission disagreed with the Fund’s argument that carpal tunnel syndrome is not an injury because the statute section which defines the term “injury” provides that an “injury” shall in no case except as specifically provided in the Chapter be construed to include occupational disease in any form.”
The Commission stated that in the absence of controlling Appellate case law, that the doctrine of stare decisis has no application to administrative tribunals. They were allowed to deviate from a prior Commission’s ruling on the matter as long as their action “is not otherwise arbitrary or unreasonable.” They respectfully disagreed with the 2020 Commission’s conclusion, discussed only briefly in a footnote in the Lexow opinion that carpal tunnel syndrome would not satisfy Section 287.220.3(2)(a)(ii) solely because carpal tunnel syndrome is the result of an occupational disease as defined by Section 287.067.
Secondly, on the issue of whether the claimant met his burden of proving that his PTD was attributable to his October 3, 2015 work injury in combination with pre-existing disabilities that qualify under Section 287.220.3, the Commission reversed the Award of the ALJ
The Commission noted that no party disputed that Dr. Volarich’s evaluation of disability to the claimant’s right shoulder as 20% PPD of the right upper extremity (46.4 weeks) fell short of the 50 week threshold required by Section 287.220.3(2)(a)(ii). In her Award, the ALJ acknowledged, “Claimant’s only injury that does not reach the statutory threshold is claimant’s right shoulder.”
The Commission noted that the ALJ awarded PTD against the Fund based on her finding that the exclusion of one work related injury was not significant when considering all of claimant’s qualifying pre-existing injuries. The Commission found that the ALJ erroneously substituted her own opinion.
The Commission concluded that under Section 287.800, they would strictly construe the provisions of the workers’ compensation law and weigh the evidence impartially without giving any party the benefit of the doubt. They found no credible or persuasive evidence in the record that the employee was PTD due to the primary injury in combination with only pre-existing disabilities that qualify under Section 287.220.3. Therefore, claimant did not meet his burden of proof and persuasion because he did not produce credible and persuasive evidence suggesting that he was PTD as a result of the combination of the primary injury and only his qualifying pre-existing disabilities. Therefore, claimant’s claim against the Second Injury Fund was denied because his evidence failed to satisfy the standard set forth under Section 287.220.3.
Commission has Authority to Determine Fair and Reasonable Attorney’s Fees
Roe v. Darden Restaurants, Inc., Case No. WD86109 (Mo. App. 2023)
FACTS: In September 2018, claimant cut her finger while sorting silverware for the employer. She notified her manager of the injury. Over the next several days, the small cut became infected resulting in emergency hospitalization. After her hospitalization, employer sent claimant for follow up treatment. Due to her injury, claimant incurred medical expenses totaling $30,879.21.
Subsequently, claimant hired an attorney to pursue a workers’ compensation claim to help pay her medical bills. She signed a fee agreement in which her attorney would receive 25% of all benefits paid, including 25% of claimant’s incurred medical bills resulting from the injury.
In January 2020, following a discussion with the ALJ, employer paid claimant’s total medical bills. After paying claimant’s medical bills, employer sent copies of all paid medical bills and their associated explanation of benefits with a letter to claimant’s attorney advising them that the information would also be introduced into evidence at the hearing. Although employer paid all of her medical bills, the claimant was not aware. The record is not clear why the claimant remained unaware her medical bills were paid despite the employer informing her attorney and providing proof of payment.
In March 2022, two years after employer paid claimant’s medical bills, the parties appeared for a final hearing before the ALJ. During the hearing, the employer introduced and the ALJ admitted into evidence, over claimant’s objection, Exhibit A, showing an affidavit and the payment of nine separate checks with accompanying explanation and Exhibit E, employer’s letter to claimant’s attorney sent in April 2020.
As a result of the hearing, the ALJ limited claimant’s attorney’s fees to 25% of the permanent partial disability Award. The Award did not include a fee on the claimant’s medical expenses, since those expenses were already paid two years prior. The claimant appealed. The Commission affirmed and adopted the ALJ’s decision.
HOLDING: The Court noted that because the claimant’s attorney worked the majority of hours after employer paid claimant’s medical bills in January 2020, the ALJ correctly limited claimant attorney’s fees to “25% of the permanent partial disability awarded.” The amount of work done prior to the payment of the medical bills was limited to about 17 hours with additional time expended for negotiations of settlement. The Court concluded that the Commission acted within its authority, under Section 287.260, in determining the fair and reasonable amount of claimant’s attorney’s fees to compensation for services rendered “in obtaining payment of her medical bills as well as permanent partial disability benefits.” They saw no reason to disturb the Commission’s findings. Also, the Court noted that in the findings of fact, the ALJ chastised claimant’s attorney about the needless work performed as well as claimant’s attorney’s failure to communicate with his client.
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
April 2023 – June 2023
Claimant Must Meet Burden to Show Job Duties, and Not Repetitive Activities at Home, are the Prevailing Factor in Causing Occupational Disease
Steinbach v. Maxion Wheels, Sedalia, LLC, Case No. WD85697 (Mo. App. 2023)
FACTS: On November 13, 2018, the claimant filed a Claim for Compensation asserting that she suffered an occupational disease to her bilateral upper extremities. The claimant worked as a rework coordinator. Employer kept production records for the work performed by the rework coordinators. The production report showed the maximum number of wheels reworked on the shift in one day was 265 wheels, but the average number of wheels reworked in a day was 48 and averaged less than 60 seconds.
In December 2017, Dr. Ellefsen sent a letter to Employer opining that the claimant’s condition could not be attributed to her work. He reviewed the production records for rework coordinators. He was also concerned about the welding she was doing at home.
Evidence of the claimant’s non work-related welding activities was also presented at the Hearing. She began welding in her basement in 2017 and purchased 4,154 pounds of scrap steel from Employer. She testified that she intended to start her own business, but that her plan did not work out.
The claimant built furniture, medieval-style weapons, toys, and other small items. A witness testified that her husband and some neighbors worked in the basement of her house along with her almost every night making items with the scrap metal.
In his report, Dr. Stuckmeyer noted that the claimant told him that “she would continuously grind wheels, up to 1,000 wheels per night.” He also noted that she had told Dr. Ellefsen that she used a large grinder at work and was exposed to vibratory and torquing tools eight hours a day, five to seven days a week, and did some welding at home but on a very occasional basis, describing it as “craft welding.” He opined that although the claimant did do outside welding at home, the intense repetitive nature of the occupational duties was prevailing factor” causing her bilateral carpal tunnel.
At the Hearing, the ALJ denied the case. The Judge found that the claimant’s testimony about her work activity and her welding activity at home was not credible, that Dr. Stuckmeyer’s opinion was not credible because she provided an inaccurate work history, and that Dr. Ellefsen’s opinions were more credible because they were based on a more accurate description of her work activities.
HOLDING: The claimant appealed to the Commission, which affirmed the ALJ’s opinion. She then appealed again. The Court noted that the claimant had the burden to show her injury was compensable. While she met her burden of production by introducing Dr. Stuckmeyer’s report, she failed to meet the burden of persuasion. The Commission rejected Dr. Stuckmeyer’s opinion and the Court affirmed the Commission’s decision.
Benefits Denied When Claimant Did Not Sustain an Accident or Fall but Instead Incurred Heat Exhaustion Which is a Risk He Would be Equally Exposed to Outside of Work
Baty v. Dairy Farmers of America, Injury No. 18-029696
FACTS: On July 9, 2019, the claimant was working at Employer’s warehouse. While performing very light duty work that mostly consisted of observing automated machinery and products moving through the machinery, the claimant began to feel ill, including sweating, hot, shortness of breath, and some chest pain. When the claimant could not cool down, he was transported in a supervisor’s personal vehicle to the emergency room.
On July 11, 2019, once again, even though the claimant indicated he was still not feeling well, he showed up for work for his afternoon shift, starting at 3:00 p.m. on a day where the reported high temperature was cooler at 86 degrees. After beginning his light duty work in the warehouse, within a few minutes, he indicated he was again feeling much worse and he was hot and sweaty. Subsequently, he was sitting on a ledge of a piece of machinery when coworkers noticed him slumping down to the floor. None of the witnesses observed the claimant fall or strike his head or sustain any trauma. In fact, it was the testimony of the claimant that no one witnessed the accident, and that no one knew how he ended up on the floor.
It was noted in the medical records, that several physicians, inaccurately, concluded that the claimant fell at work, hit his head, and was knocked unconscious.
At hearing, the ALJ denied benefits, finding that the claimant did not sustain an accidental injury or occupational disease which arose out of his employment. The claimant appealed.
HOLDING: The Commission noted that the burden of establishing entitlement to compensation is entirely upon the claimant. The Commission noted that the claimant was not performing strenuous work activity and was working in a warehouse on a day of normal summertime weather. It further noted that there was not any testimony that the heat inside the warehouse on either day was abnormally hot or significantly hotter or warmer than the outside temperature, meaning the claimant would have been equally exposed to the heat outside of the plant as he was inside the plant.
The claimant testified to a pre-existing issue involving heat related conditions in his 20’s. The claimant’s own medical expert, Dr. Schuman testified that because of a prior heat exhaustion or heat stroke, that it would make an individual more prone to having a lower threshold to sustain another heat related injury. However, Dr. Schuman was not aware that the claimant had in fact sustained a pre-existing heat related condition or possibly heat stroke.
The Commission found that the testimony of Dr. Lennard and Dr. Farrar was more credible than Dr. Schuman and therefore the decision of the ALJ was affirmed.
Section 287.780 Does Not Prohibit an Employer from Discriminating Against a Former Employee for Exercising Their Workers’ Compensation Rights
Lisle v. Meyer Electric Co., Inc., Case No. SC99670 (Mo. S. Ct. 2023)
FACTS: In May 2017, Meyer Electric hired the claimant, a commercial electrical contractor, to work on a construction project. On May 2, 2018, the claimant advised Mr. Mehrhoff, his foreman, that he was suffering from work related carpal tunnel syndrome and asked to complete an injury report. Mr. Mehrhoff allegedly replied, “If you ask for an injury report, they will lay you off.” Subsequently, Meyer Electric’s president, Leon Keller, became aware that the claimant wanted to file an injury report and a workers’ compensation claim, and therefore terminated the claimant’s employment. After his termination, the claimant filed a workers’ compensation claim and a lawsuit against Meyer Electric, alleging wrongful discharge under Section 287.780.
In June 2019, more than a year after Meyer Electric terminated the claimant’s employment, the claimant saw Meyer Electric’s job posting for a journeyman electrician. The claimant who was unemployed and pursuing his wrongful discharge claim against Meyer Electric at the time, applied for the job. Mr. Mehrhoff said he “would probably hire [the claimant] back.” The claimant received a union referral notice, a union-issued document that a member takes to the work site to begin work. After receiving the referral, however, his foreman texted the claimant that the president had instructed him not to hire the claimant.
In November 2019, the claimant filed this pending lawsuit against Meyer Electric. He alleged Meyer Electric violated Section 287.780 when it did not hire him in June 2019 in retaliation for exercising his workers’ compensation rights in May 2018. Meyer Electric filed a Motion for Summary Judgement in which it asserted the uncontroverted material facts affirmatively negated an element of the claimant’s claim because he was not an employee in June when Meyer Electric chose not to hire him. The Circuit Court sustained the Motion and entered summary judgment in Meyer Electric’s favor.
HOLDING: The claimant appealed arguing that the Circuit Court erred in sustaining Meyer Electric’s Motion for Summary Judgment because Section 287.780 prohibits employers from discriminating against former employees for exercising their workers’ compensation rights. He also claimed the Circuit Court erred in entering summary judgment because the evidence was sufficient to allow a jury to find Meyer Electric refused to hire him in retaliation for exercising his rights under Chapter 287 during their prior employment relationship.
Section 287.780 provides: “No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination…”
However, the Court held that under strict construction, “Employer” and “Employee” are defined narrowly so that the protections and sanctions in Section 278.780 apply only to employers and employees in a current employment relationship. Because the claimant was not an employee of Meyer Electric when it refused to hire him in June 2019, Meyer Electric established its right to judgment, as a matter of law. Therefore, the Circuit Court’s judgment was affirmed.
Claimant Properly Awarded Benefits for PTSD When Evidence Demonstrated Actual Events Experienced Caused Extraordinary and Usual Stress
City of Clinton v. Dahman, Case No. WD85780 (Mo. App. 2023)
FACTS: Dahman worked as a patrol officer for the City of Clinton’s police department. On August 6, 2017, he was working an overnight shift. Officer Michael was a good friend of Dahman’s. Dahman heard Officer Michael report over the radio, “Shots fired. Officer hit.” Dahman responded to the scene. On his way, he heard over his radio that the suspect vehicle had fled. When he arrived, Dahman found Officer Michael unconscious on the ground. Dahman testified that he was in shock that Officer Michael had been shot, and later died. He was one of Officer Michael’s pallbearers.
Later, Dahman watched security camera video footage which showed Officer Michael conducting the traffic stop of the suspect’s vehicle. The manhunt for the suspect took several days. After the suspect was apprehended, Dahman was scheduled to be a witness at his trial.
Starting immediately after the August 2017 incident, Dahman began to experience adverse symptoms including fatigue, anxiety, tightness in the chest, insomnia, lack of motivation, and a sense of helplessness. He resigned from the police department in October 2017 since he felt he could not do his job due to his fear of being shot.
The City of Clinton had the claimant examined by a second psychiatrist, Dr. Khalid who diagnosed Dahman with PTSD. Dr. Khalid agreed that the prevailing factor causing Dahman’s PTSD was the August 2017 incident, and that the stress he experienced in connection with that incident was extraordinary and unusual. However, by June 2021, in light of the improvement in Dahman’s condition, Dr. Khalid concluded that he did not have a permanent partial disability associated with his PTSD and was not in need of further psychiatric treatment for that condition.
The ALJ issued a final Award finding that Dahman’s PTSD was a compensable occupational disease caused by the August 2017 incident. The Judge found that Dahman had 10% PPD. The ALJ’s Award specifically found by objective standards that Dahman’s work related stress was both extraordinary and unusual and met the requirements of Section 287.120.8. The City appealed the Judge’s award. The Commission affirmed the award.
HOLDING: The City of Clinton again appealed. The Court noted that three mental health experts, and the City’s Chief of Police, uniformly testified that the circumstances to which Dahman was exposed in August 2017 were extraordinary and unusual. To establish his right to compensation, the claimant need not show the subjective experiences of his fellow workers were not as severe as his experiences, but rather, he must demonstrate the actual events he experienced were such that a reasonable police officer would experience extraordinary and unusual stress. It was also noted that while Dr. Halfaker testified that some measure of danger and exposure to crime scenes is common in police work, he also testified that the particular stresses to which the claimant was exposed in August 2017 were extraordinary and unusual.
Therefore, the Court concluded that the Commission’s decision was supported by sufficient competent evidence that the claimant’s PTSD was caused by work related stress which was extraordinary and unusual, measured by objective standards and actual events.
Employer/Insurer Must Have Authorized the Treatment for Medical Provider to Have Standing in Medical Fee Dispute
Henry v. LZB Manufacturing, Inc., Injury No. 18-029696
FACTS: The claimant reported a minor incident to his left shoulder occurring in July of 2014. Employer denied any medical treatment. Instead of providing or directing the claimant for medical treatment, he was told by a supervisor, that he could utilize a massage therapist being paid for and provided by the employer. In Fall of 2017, the claimant testified the pain in his left shoulder and neck got so bad that he once again went and directly requested medical treatment from the employer.
Thereafter, the claimant went to the emergency room at Freeman Health System on his own. He had an injection to the left shoulder and an MRI which showed tears. In March 2018, Dr. Sweaney performed a two-level cervical fusion.
Dr. Koprivica opined that employee had 25% to 30% PPD of the body for the cervical spine and 15% for the left shoulder. Dr. Lennard did not believe his condition was work related.
Based on the evidence, the ALJ found Dr. Koprivica’s report and opinions more persuasive and credible. The Judge found that the claimant’s work injury was compensable and his treatment was related back to the work injury.
On the issue of the Medical Fee Dispute filed on behalf of Freeman Health System, the ALJ found that the medical care and treatment received by the claimant regarding the left shoulder and cervical spine, including the surgery, represented reasonable, usual and customary treatment necessary in an attempt to cure and relieve the effects of the work injuries based on the medical opinion of Dr. Koprivica. Therefore, the ALJ found the Employer liable for the Medical Fee Disputes for treatment provided by Freeman Health System, respectively $94,378.59 and $29,398.00.
HOLDING: The Employer/Insurer appealed the ALJ’s award to the Commission, in part, stating that the ALJ erred in awarding Freeman direct payment of $94,328.59 and $29,398.00 pursuant to the Medical Fee Disputes, because the Employer/Insurer did not authorize the treatment.
With respect to Medical Fee Disputes, it was noted that under Section 287.140.13(6) that a medical provider may file a Medical Fee Dispute regarding services that have been authorized in advance by the Employer or Insurer.
It was noted that no party disputed that the employer refused to authorize medical treatment. It was also noted that the Division has the power to reject an Application for Direct Payment if the Application does not pertain to a dispute relating to services that were authorized in advance by the Employer or Insurer.
Therefore, the Commission affirmed the ALJ’s finding, based on Dr. Koprivica’s opinion, that the charges of Freeman Health System represented reasonable, usual and customary treatment necessary to cure and relieve the effects of the claimant’s compensable claim. However, the Commission modified the Award finding that the Employer/Insurer was directly responsible for these charges and that the Medical Fee Disputes were dismissed without standing. The remaining portions of the ALJ’s award were affirmed.
For SIF PTD Liability, Claimant Must Meet 50 Week Threshold for Each Separate Body Part for Pre-existing Disability to Qualify
Casey v. Second Injury Fund., Injury No. 16-050548
FACTS: The claimant’s primary injury involved bilateral carpal tunnel releases and bilateral ulnar nerve transposition surgeries. The claimant settled his primary claim for 15% of each wrist, 15% of each elbow, a 10% loading factor, and eight weeks of disfigurement.
The claimant had sustained pre-existing disabilities prior to the primary injury. In 2006, he injured his right knee while working and settled this claim for 10% of the right knee in 2007.
In 2012, the claimant sustained an injury at work to his left wrist, left knee and left ankle. The claimant settled this claim for 10% of the left wrist, 20% of the left knee, and 22.5% of the left ankle.
The claimant obtained an IME from Dr. Volarich. Regarding the 2016 primary injury, Dr. Volarich provided PPD ratings of 35% of each wrist and 35% of each elbow. Regarding the pre-existing conditions, he provided PPD ratings of 15% of each wrist, 60% of the right knee, 35% of the left knee, and 40% of the left ankle. He opined that the claimant was PTD as a result of the 2016 primary injury in combination with his pre-existing medical conditions.
The claimant sought a vocational assessment from Ms. Shea. She opined that the claimant was not employable and his inability to be employed was the result of the primary work related injury and his pre-existing injuries and conditions.
The ALJ determined that the SIF was liable for PTD.
HOLDING: The SIF appealed the ALJ’s award for PTD benefits against the Fund.
The Commission disagreed with the Fund’s allegation that the ALJ erred in finding the claimant’s pre-existing 2006 right knee was equal to or greater than 50 weeks of PPD. The Commission explained that they must determine the extent of PPD that the claimant had in his right knee at the time of the June 2016 primary injury. They noted that the 2007 settlement may be evidence of PPD in the knee at the time of the settlement but it is not determinative of the PPD present nine years later in 2016. They found credible, persuasive evidence demonstrated that the claimant had 32.5% PPD of the right knee (52 weeks) pre-existing the 2016 primary injury.
However, the Commission did agree with the Fund that the ALJ erred in adding together three separate and distinct disabilities to different parts of the body as a result of one injury to reach the required threshold amount under Section 287.220.3. They did not find any authority to allow combining disabilities occurring to different parts of the body in order to reach the 50 week threshold in Section 287.220.3(2)(a).
Also, the Commission agreed with the Fund that the ALJ erred in awarding PTD benefits because the claimant’s total disability resulted from the combination of the primary injury and non-qualifying pre-existing disabilities. It was noted that the claimant’s experts, Dr. Volarich and Ms. Shea opined that the PTD was a result of a combination of the prior injury and the pre-existing conditions. The experts included the claimant’s non-qualifying pre-existing disabilities in arriving at their PTD opinions. As such, the Commission concluded that the claimant failed to meet the requirements of Section 287.220.3 to make a compensable PTD claim against the Fund.
Therefore, the Commission reversed the Award of the ALJ. The claimant’s claim against the Fund was denied because his evidence failed to satisfy the standard set forth under Section 287.220.3.
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
January 2023 – March 2023
Claimant Must Establish a Medically Documented Pre-existing Condition Significantly Aggravated the Primary Injury
Dubuc v. Second Injury Fund, Case No. SC99605 (Mo. S. Ct. 2023)
FACTS: The claimant sustained an injury in October 2015 when he fell off a ladder at work injuring his wrist, kidneys and low back. He settled with his employer for his primary injuries but alleged that he was PTD under Section 287.220.2 and that the Fund was liable for benefits due to his pre-existing disabilities, including multiple hernias and Factor V Leiden mutation with anti-coagulation and his primary injury.
Following the hearing, the Administrative Law Judge denied benefits because the ALJ determined the primary injury alone rendered him PTD. Claimant appealed and the Commission reversed the Award of the ALJ and awarded him benefits from the Fund. The Fund appealed.
While the case was pending the Supreme Court handed down Cosby, which required the claimant to meet the standards in Section 287.220.3 to prove his claim. Prior to Cosby, Section 287.220.3 applied only when both pre-existing and primary injuries occurred after January 1, 2014 but Cosby held that Subsection 3 applies when any injury occurred after January 1, 2014.
Thereafter, the Court of Appeals reversed the Commission’s Award and remanded the case, instructing the Commission to determine if the claimant was entitled to benefits from the Fund under Section 287.220.3. The Commission did not award the claimant benefits from the Fund.
HOLDING: The Supreme Court affirmed the Commission’s decision. The claimant failed to establish his primary injury and pre-existing disabilities entitled him to PTD benefits from SIF under Section 287.220.3. He failed to establish any “medically documented” qualifying pre-existing disability that “directly and significantly aggravated or accelerated” his primary injury.
First, there was no “direct evidence” in the record of claimant’s hernias but only “self-reported history.” Claimant’s own statements about hernias noted by doctors in medical records were not considered “medically documented” because the doctors’ references to hernias were not based on records of diagnosis or treatment, but based on the claimant’s own statements.
Second, there was no showing that claimant’s Factor V Leiden mutation and anti-coagulation “directly and significantly aggravated or accelerated” his primary injury. When discussing the relationship between claimant’s pre-existing injuries and primary injury, Factor V Leiden mutation and anti-coagulation were omitted from the expert’s report. The claimant must show that “the impact of the pre-existing disabilities on primary injury is more than incidental; they must clearly exacerbate the primary injury in a meaningful way.”
Claimant’s Medical Evidence Must Show Pre-existing Disability Significantly and Directly Aggravated the Primary Injury
Swafford v. Second Injury Fund, Case No. SC99563 (Mo. S. Ct. 2023)
FACTS: Claimant’s primary injury occurred in October 2017 when he slipped at work while getting out of a truck. He was diagnosed with a moderately large rotator cuff and labrum tear. After settling his worker’s compensation claim with his employer, he went to a hearing against the Fund, alleging his pre-existing disabilities combined with his primary injury, rendering him PTD.
The claimant had multiple pre-existing disabilities including ankylosing spondylitis, various cardiac conditions for which he had undergone multiple procedures, and right shoulder pain since 2012. In 2016, prior his work injury, he was diagnosed with bursitis in his right shoulder, which required steroid injections every three to four months.
Following the hearing, the ALJ denied the claim, concluding that the claimant failed to demonstrate he suffered from a “qualifying” pre-existing disability under Section 287.220.3. The Commission agreed with the ALJ’s determination that the claimant failed to show his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury pursuant to Section 287.220.3. Claimant appealed the Commission’s decision.
HOLDING: On appeal, the claimant challenged the Commission’s decision for allegedly disregarding the expert testimony he offered to establish a causal relationship between his pre-existing disabilities and his primary injury. The Court found that the claimant failed to establish that his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury.
While the claimant’s medical reports establish that his pre-existing disabilities had some worsening effect on his primary injury, they were insufficient to show that the worsening effects rose to the level of significant and direct aggravation or acceleration. First, Dr. Lingenfelter’s “vaguely worded report” failed to establish “as a factual matter that claimant’s pre-existing disabilities ‘significantly and directly’ aggravated his primary injury.” He did not clearly articulate the extent to which any of those disabilities exacerbated that injury.
Second, Dr. Koprivica also provided “no medical evidence” that any of claimant’s pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury. While Dr. Koprivica stated that there was a “significant synergistic effect” between the pre-existing disabilities and the primary injury, that specific language relates to the standard for SIF liability prior to the 2013 amendments. Although medical experts need not use “magic words” (“synergistic effect”) associated with the less stringent standard (“combined with”) that qualifies for SIF liability under the pre-amended Section 287.220.2. Such language is insufficient under Section 287.220.3. Therefore the Fund was not liable for benefits.
Claimant Must Present Evidence Required to Meet All Statutory Requirements to Show PTD.
Weibrecht v. Second Injury Fund, Case No. SC99493 (Mo. S. Ct. 2023)
FACTS: Claimant’s primary injury was a low back injury he sustained at work in July 2016. After settling his claim with his employer, went to a hearing against the Fund alleging that he was PTD due to his pre-existing injuries to his low back in 2005 and 2009 and right shoulder in 2014 combined with his primary injury.
A hearing was held before the ALJ in May 2019. Before the ALJ issued her final Award, the Court handed down its opinion in Cosby finding that Section 287.220.2 applies when all injuries occurred prior to January 1, 2014 and Section 287.220.3 applies when any injury occurred after January 1, 2014.
After the hearing, but before the ALJ’s final Award, the claimant filed a motion to reopen the record for a supplemental hearing, contending that Cosby changed the law. He contended the Court’s decision in Cosby changed his burden of proof, which constituted “good cause” to reopen the record. The SIF argued that while the ALJ has authority to reopen the record in certain circumstances, doing so was not warranted under the facts of this case.
The ALJ denied claimant’s post-hearing motion and denied his claim for benefits from the SIF. The Commission affirmed the ALJ’s decision.
HOLDING: The Court affirmed the earlier decisions finding that the Commission did not abuse its discretion in affirming the ALJ’s denial of claimant’s post-hearing motions to reopen the record and submit additional evidence.
The Court pointed out that workers’ compensation law is entirely a creature of statute. Nothing prohibited the claimant from presenting evidence under both Sections 287.220.2 and 287.220.3 at his hearing. It was not against the logic of the circumstances and so unreasonable to indicate a lack of careful consideration for the ALJ to conclude there was no good cause to reopen the record when the Court had not previously interpreted Sections 287.220.2 and 287.220.3 and nothing precluded the claimant at from making alternative arguments. Accordingly, the ALJ did not abuse her discretion. Claimant should have been aware of what evidence was required to make a submissible case for PTD and the plain language of Sections 287.220.2 and 287.220.3 set forth the necessary evidence to make a submissible claim.
Upon Reaching MMI, Claimant Can Be Found PTD
LME, Inc. v. Robert Powell and Second Injury Fund, Case No. WD85427 (Mo. App. 2023)
FACTS: The claimant suffered a work injury to his back while operating a pallet jack. He underwent a lumbar decompression fusion by Dr. Bailey. He determined the claimant reached MMI and provided a 12.5% rating of the lumbar spine. Prior to the work injury, claimant had suffered disability to the back due to two prior motor vehicle accidents.
After he was released at MMI for the back, the claimant began treatment on his own for major depressive disorder. Prior to the work injury, he had been diagnosed as bipolar and had experienced depression and suicidal ideation since he was a teen. Furthermore, he had only a ninth grade education, no GED and a history of learning and behavioral problems.
Dr. Stuckmeyer determined that as a result of the work injury, the claimant sustained 35% PPD to the body in addition to a pre-existing 15% for lumbar and pelvis injuries from his previous car accident. In a subsequent report, he determined the claimant was permanently totally disabled as a result of the work injury after reviewing the vocational report of Mr. Cordray and psychiatric report of Dr. Hill who opined that the work accident was the prevailing factor for the claimant’s development of major depressive disorder and somatic symptom disorder, and he assigned 40% and 15% PPD for each disorder, respectively.
The ALJ found the claimant PTD and that the employer was responsible for benefits. The Commission affirmed the Award.
The employer appealed, arguing that the Judge and Commission erred by determining the claimant PTD by misstating the agreement reached by the parties regarding the claimant’s MMI date, because the employer only agreed that the employee reached MMI for his physical injuries, because the employer never accepted or admitted a psychological injury and therefore the employee cannot be determined to be PTD until he has reached MMI for all conditions.
HOLDING: The Court disagreed with the employer’s argument and affirmed the Award.
At the final hearing, both the claimant and employer stipulated on the record to the MMI date of April 12, 2018, the date Dr. Bailey released the claimant. There was no discussion or delineation between the physical and psychological injuries regarding MMI in the stipulated facts. By arguing that the employer accepted the back injury but not the alleged mental injury misconstrues that one of the purposes of the final hearing was to resolve whether the employee suffered any disability.
The Court also noted that the ALJ relied on the opinion of Dr. Hill regarding the psychiatric injury. He stated that the recommended treatments are not curative by any means, but may help improve the claimant’s daily life. Thus, contrary to employer’s position, such evidence supports that the psychiatric injury has reached the point where no further progress is expected or maximum medical improvement.
Objective Symptoms at Time of Accident Include Indications of Injury Perceptible to Others
Harper v. Springfield Rehab & Healthcare Center, Case No. SD37268 (Mo. App. 2023)
FACTS: The Commission stated in its rulings: “Claimant suffered an ‘unusual strain’ in her lower back when she pushed the heavy medicine cart…which produced objective symptoms of injury” based on claimant’s testimony that she “felt a ‘pull’ in her lower back” and “shortly thereafter (during the same work shift)…had difficulty walking.”
The employer appealed the Commission’s decision. They argued that the claimant had not sustained an accident under the law because the Commission “failed to establish objective symptoms of an injury at the time and place of occurrence.”
HOLDING: The Court stated that although the definition of “accident” in the statute has always included the phrase “producing at the time objective symptoms of an injury,” the changes to the statute in 2005 abrogated earlier case law interpreting the definition of “accident.”
They found that the adjective “objective” when used in combination with “symptom” means “perceptible to persons other than the affected individual.” They concluded that the statutory phrase, an unusual strain “producing at the time objective symptoms of an injury” should be interpreted to mean an unusual strain producing at (i.e. near) the time objective symptoms (i.e. indications perceptible by persons other than the claimant of the existence) of an injury (i.e. violence to the physical structure of claimant’s body).
The Court noted that the Commission found that the claimant “had difficulty walking” later in the same shift during which she suffered an unusual strain. Claimant’s difficulty walking would be perceptible to persons other than the claimant, indicated the existence of violence to the physical structure of claimant’s body, and was produced near the time of the unusual strain.
Therefore, the Court affirmed the Commission’s decision.
Claimant Not entitled to Additional TTD Benefits After MMI Because Refusal to Look For Work is Not Inability to Work.
Thompson v. CSI Commercial Services, Inc. and Second Injury Fund, Injury No. 10-087819
FACTS: The claimant testified at injured her low back on July 20, 2010. She underwent a fusion at L2-L3 with Dr. Robson on March 7, 2011. She testified the surgery did not relieve her symptoms. Dr. Robson opined in his reports that claimant’s continuing complaints following the March 7, 2011 surgery were related to chronic changes at L4-5 and L5-S1 level which were degenerative in nature and were not acutely injured during the work-related injury. Dr. Robson found her at MMI referable to the work injury on August 18, 2011 and released her from care with work restrictions.
Thereafter, the claimant agreed with her employer that she would not be able to continue working for the employer due to the work restrictions. TTD benefits were terminated as of August 30, 2011, due in part to the MMI report of Dr. Robson. The claimant testified she applied for and began receiving unemployment benefits upon termination of her TTD benefits and received unemployment benefits from September 2011 through December 2012. She also testified that since she left the employer, she has been unable to find a job and has not worked to date.
Claimant testified that when her unemployment benefits terminated in December 2012, she, at the urging of a few individuals, including her primary care physician, Dr. Maebe, applied for Social Security Disability benefits due to her back pain, surgery pain, anxiety, and depression. She was awarded SSD benefits as of January 8, 2013.
The employer sent the claimant back to see Dr. Coyle in 2016. She underwent a surgical fusion at L5-S1 May 22, 2017. Dr. Coyle released her to return to work on November 30, 2017 with restrictions of 30 pound lifting occasionally and 20 pounds frequently. The claimant testified that she had not conducted a job search since Dr. Coyle released her on November 30, 2017. She testified she cannot work due to back pain and lower extremity radicular pain and numbness. She also testified that she cannot drive a car very far from her home, and she is very limited in her daily life activities. She denied her vocational specialist, Mr. Kaver’s, testimony that she told him she had to rest in a reclining position for most of the day.
HOLDING: The Judge found that the claimant was entitled to 42.5% PPD as a result of the July 20, 2010 work injury and was not PTD. He also did not find any liability against the Second Injury Fund.
With respect to the issue of past TTD benefits, the Judge noted that Dr. Robson found claimant at MMI as of August 18, 2011. He further noted that the claimant received unemployment benefits through November 14, 2012 and in order to receive the same, the claimant needed to certify each week that she met the basic requirements such as being able to work and being available for full time work. Therefore, he found that the claimant was not entitled to TTD benefits from September 2011 through November 14, 2012 while she was receiving unemployment benefits.
The Judge noted that the purpose of TTD benefits is to cover claimant’s healing process. TTD benefits are owed until claimant can find employment or his condition has reached MMI. When further medical procedures are not expected, temporary benefits are not owed and a temporary award for additional TTD benefits is not warranted.
For the period of time of November 14, 2012 through November 8, 2016, the Judge found that the claimant was not entitled to TTD benefits from the time of her termination of unemployment benefits on November 14, 2012 through Dr. Coyle’s reexamination of her on December 8, 2016. Evidence from vocational specialist, Ms. Gonzales, indicated the claimant was capable of obtaining employment in the open labor market as well as medical evidence of MMI status from Dr. Robson and Dr. Coyle.
For the period of time of November 8, 2016 through November 30, 2017, the Judge found that the claimant was entitled to receive TTD benefits for a second period of time from Dr. Coyle’s December 8, 2016 reexamination of claimant and during her treatment by Dr. Coyle, including the May 27, 2017 surgery and post-surgical care until Dr. Coyle released claimant at MMI as of November 30, 2017. The right to TTD during the second period of time terminated based on Dr. Coyle’s MMI finding on November 30, 2017.
With regard to the period of time of November 30, 2017 to the present, the Judge noted that the evidence demonstrated that the claimant was capable of looking for work as of the date of MMI on November 30, 2017 but did not. He stated that in this case, a refusal to look for work demonstrates an unwillingness to return to work, not an inability to return to work. He found that the claimant is not entitled to any additional TTD benefits from Dr. Coyle’s release of the claimant on November 30, 2017 to the present.
The Commission affirmed the Award of the ALJ.
Awarding of Attorney’s Fees is in the Discretion of ALJ
Roe v. Darden Restaurants, Inc., Injury No. 18-074813
FACTS: Claimant attorney asserted a 25% lien on the gross proceeds paid in the case including payment of medical bills regarding claimant’s treatment for her September 13, 2018 injury. Initially, claimant’s attorney requested a list and accounting from the employer of all of the medical bills which had already been paid. Furthermore, the evidence shows that the employer notified claimant’s attorney in January 2020 that they intended to pay the remaining bills. Proof of such payment was forwarded in April 2020 to claimant’s attorney. Despite the foregoing, claimant’s attorney never advised his client the bills had been paid and proceeded to prolong the case for an additional two years, including a request for a deposition of a corporate representative to confirm payment of the bills.
Interestingly, at the hearing in March 2022, the employee testified she had never received a bill from any healthcare provider in connection with her injury.
Following the hearing, the Administrative Law Judge awarded compensation but limited the claimant’s attorney’s fees to 25% of the PPD awarded.
HOLDING: The ALJ noted that the determination of attorney’s fees is at the discretion of the Court. She noted that the efforts of claimant’s attorney after the bills were paid in 2020 were unnecessary. Although the claimant’s attorney did review the bills and send the employer’s attorney a couple of letters prior to the payment of the bills, the services provided were no more than the average workers’ compensation case might require. The majority of the claimed hours of work were after the bills had already been paid.
The Commission affirmed the ALJ’s award finding that the limitation of attorney’s fees to 25% of the PPD awarded was fair and reasonable.
Under Strict Construction, There are No Exceptions for the Late Filing of an Application for Review.
Gray v. Hawthorn Children’s Psychiatric Hospital and Second Injury Fund, Case No. ED110400 (Mo. App. 2023).
FACTS: On June 10, 2019, the Administrative Law Judge held a final hearing. On September 12, 2019, the ALJ issued the final Award denying benefits. The parties had 20 days from the date of the final Award to file an Application for Review with the Commission. The claimant attempted to mail her Application for Review on September 30, 2019, within the 20 day period, however, the mailing was returned to her by the USPS due to insufficient postage.
On December 3, 2020, the ALJ conducted an Evidentiary Hearing where the claimant offered testimony about the mailing. After considering the evidence from the remand Hearing, the Commission accepted the claimant’s Application for Review as timely. Thereafter, contrary to the ALJ’s decision, the Commission ordered employer to pay PPD benefits. The employer appealed.
HOLDING: The Court reversed the Commission and set aside the Final Award. It found that the Commission acted in excess of its powers when it accepted the claimant’s Application for Review. The claimant’s Application was untimely and the statute, under strict construction, does not provide a good cause exception to the 20-day deadline.
The Court explained that even if they accepted the claimant’s argument that the postage was sufficient (which they do not) and the USPS erred in returning the mailing for insufficient postage, the workers’ compensation statute does not provide exceptions for late filings so the Commission did not have jurisdiction to review the claimant’s Application.
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
October 2022 – December 2022
Tripping Over Pallet is Not a Hazard Which Employee is Equally Exposed Outside of Work
Burns v. Wal-Mart Associates, Injury No. 20-025625
FACTS: Claimant testified that her injury at work occurred on April 24, 2020. She stated that as she was walking from the break room to her workstation in the self-checkout section of the store, she tripped on a pallet on the floor. She stated that she did not remember actually falling. Her next memory was sitting on the pallet with a paramedic helping her to get up. She alleged injuries to her head and left shoulder.
Although the ambulance and emergency room records indicated that claimant might have experienced a syncope episode or fainted, there was no evidence showing that the first responders or the emergency room personnel asked claimant whether she had fainted or experienced a syncope episode. There was no evidence showing that they had even asked claimant what happened. In addition, the ambulance records indicated that claimant was not oriented as to the time, meaning that she was confused and the medical records confirmed that she was knocked unconscious and suffered a concussion when she struck her head on the hard floor surface or pallet. She testified to short-term memory problems as a result of her concussion. Wal-Mart did not deny that it left a pallet impeding the trafficway or aisle where claimant fell however argued that the injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of an unrelated to the employment in normal non-employment life. The ALJ awarded benefits and the claimant appealed.
HOLDING: The Commission found that while it is true that claimant was walking when she tripped on the pallet and fell and that she walks in her personal non-employment life, there was a clear nexus in claimant’s case between her injury and her work and her risk for the injury. The Commission noted that the focus should have been on her tripping and falling on a pallet Wal-Mart left in a congested aisle in the store and not merely on her walking as she does in her personal non-employment life or whether she possibly could have tripped on some pallet in her personal non-employment life.
Thus, unlike the Johme case, where Ms. Johme’s work had nothing to do with the risk of her twisting and turning her ankle and falling off her sandal, claimant’s work was the cause of her injury when she tripped on a pallet Wal-Mart left in a congested aisle and falling and injuring her head and shoulder. In addition, there was no evidence showing that claimant was “equally” exposed to the same risk of tripping on a pallet and falling in her personal non-employment life.
Therefore the Commission affirmed the ALJ’s Award and decision.
Work Accident Was Not the Prevailing Factor, Because Based on Credible Expert Testimony and Prior Medical Records, Claimant Had Symptoms Prior to Date of Injury
Taylor v. Darden Restaurants, Inc./Olive Garden, Injury No. 17-098731
FACTS: On December 13, 2017, claimant injured her neck while at work. She bent over to locate a lid, straightened up, and a box fell from a shelf, striking her on the head. At the time of the incident, she was working under permanent light duty restrictions as a result of having a cervical fusion in January 2017 as a result of a May 3, 2015, work injury.
After her December 13, 2017 work injury, she was referred to Dr. Mirkin by Concentra who stated that the claimant had no symptomology prior to the December 13, 2017 incident and developed symptoms that correlate with her MRI findings after the 2017 incident. He opined that the prevailing factor in her need for treatment was the December 13, 2017 incident working at Olive Garden.
Following the December 13, 2017 work injury, Dr. Bernardi noted in his IME report the claimant’s ongoing symptoms after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. He opined that the claimant had a poor result from her January 30, 2017 surgery and that her current symptoms most likely represent chronic cervical myeloradiculpathy related to her prior work accident in May 2015 and that the more acute symptoms were related to an aggravation of her residual cervical stenosis. He further found that the claimant sustained no PPD to her cervical spine attributable to her December 13, 2017 work injury. The ALJ found that the employer was responsible for treatment and the employer appealed.
HOLDING: The Commission noted that based on the expert opinion of Dr. Bernardi, it was not persuaded that the claimant’s December 13, 2017 work injury was the prevailing factor causing her current cervical condition and need for surgery. They discredited Dr. Mirkin’s contrary opinion because it was based on his incorrect assumption that the claimant had fully recovered and had no physical complaints or limitations after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. Therefore, the Commission reversed the ALJ’s temporary or partial Award for additional medical treatment regarding the cervical spine.
Claimant Met Objective Standard of Extraordinary and Unusual Stress Involving Police Shooting Incident
Dahman v. City of Clinton, Injury No. 17-090567
FACTS: On August 6, 2017, claimant was working as a police officer for the City of Clinton when he heard a radio report from his co-worker and friend, Officer Michael, that shots had been fired and that an officer was down. Claimant immediately responded and found Officer Michael on the ground with another officer attending to him. Officer Michael was still alive when claimant arrived.
Claimant was tasked with the duty of responding to where the suspect’s vehicle had apparently crashed after the shooting. He had to stay at the scene for most of the evening into the early morning to secure it. He later learned that evening that Officer Michael had passed away.
Subsequently, the City of Clinton took immediate measures to provide counseling to claimant. He then sought treatment with his family physician for anxiety. Thereafter, he left the City of Clinton to work as an insurance adjuster, with this event being the main factor for him leaving his position. However, his employment as an adjuster ended when he failed to show up to work on a number of occasions for symptoms which he attributed to the shooting event.
Prior to the shooting, claimant had other events in his life including responding to the death of a child as an officer and issues with alcohol use. However, he did not take any medication for anxiety, did not have difficulty sleeping, or other symptoms.
Dr. Logan, the employer’s expert, diagnosed claimant with PTSD, mild major depression, and alcohol use disorder. He opined that the August 6, 2017 shooting event did rise to the level of extraordinary and unusual mental stress. He also rated claimant’s PPD at 10% of the body.
Dr. Halfaker, the claimant’s expert, opined that the event of August 6, 2017 and the stress that it caused was both extraordinary and unusual. He provided a 10% to 14% disability of the body.
HOLDING: Pursuant to the statute “Mental injury resulting from work-related stress does not arise out of and in the course of employment, unless it is demonstrated that the stress is work-related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events”.
The objective standard for determining whether claimant’s stress was compensable is whether the same or similar actual work events would cause a police officer extraordinary and unusual stress. The claimant must demonstrate the actual events he experienced were such that a reasonable policeman would experience extraordinary and unusual stress.
The City of Clinton argued that police officers’ shootings are not extraordinary, but the ALJ declined to accept this reasoning. The particular facts of claimant’s experiences, including but not limited to, responding to the scene of Officer Michael’s shooting which was a friend, knowing the suspect was still at large and had a long rifle, and knowing that the protective vest would not help along with claimant feeling like a sitting duck in the dark, are all factors in support of the Award for compensation to the claimant.
The ALJ awarded the claimant 10% PPD of the body as a result of the events of August 6, 2017. The Commission affirmed the Award and decision of the ALJ.
Claimant Has Burden of Proof to Show That a Contract of Employment Was Entered Into in the State of Missouri to Establish Jurisdiction
Wulf v. Tradesmen International, Inc., Injury No. 18-113120
FACTS: The sole issue to be addressed was jurisdiction. The accident occurred on November 14, 2018 in Marietta, Georgia.
The employer/insurer disputed and denied that Missouri had jurisdiction. They admitted that the Kansas Division of Workers’ Compensation had jurisdiction over this claim and admitted claimant sustained a compensable injury. Benefits were immediately started and continued under the Kansas Workers’ Compensation Act.
Claimant testified that he originally applied for employment with Tradesmen, the employer, in July or August of 2013. He filled out an application online at the job center in Leavenworth, Kansas where he was living at the time. Following his completion of the application, he was invited to the Tradesmen office located in Kansas City, Kansas for an interview.
The claimant and Tradesmen had a rather unique employment relationship. Claimant did not have an office which he reported to on a daily basis. Instead, he reported to whatever project might be available for the clients of Tradesmen. All job assignments were provided by way of telephone call or text messages to him, at times daily, or a weekly basis. However, there was a sporadic nature to claimant’s employment assignments. There would be times when he was working full regular duty, and at other times, there would be gaps in employment of two months, six months, or longer.
In September 2017, claimant was laid off from a different employer. As he was in his car, his phone flashed that Tradesmen was calling about a job assignment. This was a brief phone call. Claimant then received a text message with more information about the job assignment in Overland Park, Kansas. The ALJ determined that Missouri did not have jurisdiction over this claim and the claimant appealed.
HOLDING: Pursuant to statute, Missouri has jurisdiction only under three circumstances: (1) when the injury occurs in Missouri; (2) when the claimant’s employment is localized in Missouri in 13 weeks leading up to the date of injury, and (3) when the contract of employment was entered into in Missouri.
In this case, the claimant was injured in Georgia and all of claimant’s employment in the 13 weeks prior to the injury occurred either in Kansas or Georgia. With regard to the contract of employment, it was entered into in Kansas in August of 2013. The claimant conceded that he had an interview at the Kansas City, Kansas office of Tradesmen and was offered employment at that time.
To form a contract, there must be a meeting of the minds between the parties. That occurred in August of 2013. However, there was no “meeting of the minds” to form a new contract of employment in September of 2017. It was the claimant’s burden of proof to convince the Court there was somehow a new contract of employment during this brief phone call with the representative from Tradesmen. The pattern and practice of conduct between the parties clearly demonstrates otherwise. Therefore the Commission found that the claimant failed to sustain his burden of proof and Missouri does not have jurisdiction. Therefore the Award of the ALJ was affirmed.
Work Injury Alone Sufficient for PTD Where Restrictions Are Result of Accident Despite Significant Pre-Existing Conditions
White v. Schrieter Materials LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 18-046371
FACTS: On June 14, 2018, the 65-year-old claimant was working on the back end of a concrete mixer truck and fell to the ground striking his head and breaking his arm. Due to the accident, he suffered closed head trauma with subdural hematoma, nasal fractures, comminuted left wrist fractures, a cervical fracture, and severe contusion to the right calf. After the accident, the claimant was transported to Mercy Hospital and underwent an open reduction internal fixation of the distal radius fracture to his left wrist. For his C7 end plate fracture, he received non-operative conservative treatment. He was discharged from the hospital two days later on June 17, 2018. Thereafter he began occupational therapy, and then physical therapy.
It was noted that claimant continued to use a cane at times after his work injury, but this was because of left hip pain which was unrelated to the work-related injury. The claimant had a number of pre-existing conditions. He suffered a prior work-related injury from a 2006 motor vehicle accident and was awarded PPD of 25% of the cervical spine, 1% of the nose, 2% of an eye, 10% for seizures, 15% of the left shoulder, 3% of the left knee, 2% for a rib injury, 8% of the lumbar spine, and 15% for depression.
With respect to the June 14, 2018 work accident in question, Dr. Volarich opined that the claimant had significant restrictions for his post-concussion syndrome and confirmed that these restrictions related solely to his June 14, 2018 accident. The claimant’s testimony also supported the restrictions provided by Dr. Volarich as a result of the head injury from the June 2018 accident.
It was further noted that the defense did not directly impeach Dr. Volarich’s findings regarding the claimant’s closed head injury. Also, Dr. Randolph examined the claimant and found that the episodes of vertigo and dizziness were largely resolved, but Dr. Volarich found that claimant had significant residual complaints relating to vertigo and dizziness.
HOLDING: The ALJ determined that the evidence was persuasive that the 2018 work injury considered alone was sufficient to render the claimant unemployable in the open labor market. Due to the injuries sustained in the 2018 accident, the claimant had significant, ongoing and disabling symptoms that prevented him from returning to any work. The Judge noted that given the two contrasting perspectives, Dr. Volarich’s conclusions were more consistent with the other evidence. He noted that while the claimant certainly had many pre-existing disabling conditions, the claimant’s disabilities from the work injury from this occurrence were sufficient to render him permanently and totally disabled. Based on the weight of the evidence, the claimant was awarded permanent total disability benefits from the employer/insurer. Because the employer was found liable for the permanent and total disability, the claim against the Second Injury Fund was denied. The Commission affirmed the Award and decision of the ALJ.
Prior Disabilities Must Individually Meet Fifty Week Threshold for SIF Liability for PTD
Adams v. Treasurer of the State of Missouri – Custodian of Second Injury Fund, Case No. WD84818 (Mo. App. 2022)
FACTS: The material facts were undisputed. Claimant suffered three significant work-related injuries during his career.
In 1984, claimant tore ligaments, tendons, and nerves in his left hand which resulted in reconstructive surgery. He settled his claim for 32.5% of the left wrist or 56.875 weeks of disability.
In 2001, claimant fell off scaffolding while working. His doctor found 35% PPD of the right leg, 35% of the left leg, and 7.5% of the lumbar spine. The employer’s doctor provided a 5% PPD rating of the right leg, 3% of the left leg, 2% of the lumbar spine, or 5% of the body as a whole for all three disabilities.
The claimant settled his 2001 injury against the employer based on “approximate” disability of 15% of the body referable to bilateral knees and low back which was 60 weeks of disability. The Compromise Settlement does not provide a breakdown of weeks of disability attributed to the low back or each knee.
On September 17, 2015, claimant sustained his final work-related injury. His right hand was crushed and his right shoulder injured when his hand was pinned between a jack handle and the bottom of a trailer. Surgery was performed. Thereafter, claimant filed a workers’ compensation claim against his employer for PPD and a claim against the SIF for PTD.
The ALJ issued his final Award concluding that the claimant was PTD due to the primary injury together with his prior disabilities from the 1984 injury and the 2001 injury.
The SIF appealed the ALJ’s Award because the disabilities which resulted from the 2001 injury did not qualify under Section 287.220(3)(a). They noted that the 2001 injury resulted in disabilities to two specific body parts, the knees and the back, that do not separately meet the 50-week threshold.
The Commission reversed the ALJ’s Award finding the SIF had no liability. The claimant appealed.
HOLDING: The claimant appealed the Commission’s Final Award denying compensation from the SIF. Claimant claimed the Commission erred in failing to find the SIF liable for claimant’s combined disabilities from his work-related 2001 injury because together they met the 50-week threshold required by Section 287.220.3.
It was noted that the Commission found “as a factual matter, that pre-existing disability relating to employee’s (2001) work injury did not result in PPD of at least 50 weeks to either employee’s back or bilateral knees”. Also, that in 2001, the SIF entered into this Compromise Settlement does not also infer or result in an agreement that the disabilities meet the current statutory requirements of Section 287.220.3. Rather, the Court noted that they were bound by the Commission’s factual determination that the Compromise Settlement does not presently satisfy the statutory requirements of Section 287.220.3. It was noted that the settlement contract clearly states that “There are disputes between the parties” and “because of the dispute…the parties…enter into a compromise lump settlement…” Based upon “approximate disability”. In doing so, the Court noted the Compromise Settlement simply agreed to an approximated and cumulative disability rating for purposes of settlement without separately rating the individual disabilities themselves, a function necessary to determine whether either qualifies as a pre-existing disability as defined by Section 287.220.3(2).
The Court further noted that both the claimant’s and Dissent’s use of pre-2005 Missouri caselaw recognizing the “body as a whole” approach in construing Section 287.190.3 is not persuasive. Their cited cases analyze the prior statutory framework that called for a liberal construction of the provisions of Chapter 287.
The Court noted that the claimant interpreted the prior decision in Parker to mean that all disabilities which are the direct result of a compensable injury or to be combined to determine if the 50-week threshold is met. However, the claimant’s interpretation was incorrect. It was noted that not only was it at odds with the current statutory framework calling for strict construction, but it was also contrary to the holding in Parker which required that each of the pre-existing disabilities must qualify on its own under Section 287.220.3(2)(a) to be considered.
Therefore, the Court concluded that the Commission’s findings were supported by substantial and competent evidence. The claimant failed to establish a qualifying pre-existing disability which, with his primary injury would entitle him to PTD benefits from the SIF pursuant to Section 287.220.3. Accordingly, the Commission’s decision was affirmed.
To Establish a Claim Against the SIF, The Claimant Must Meet the Burden of Persuasion That a New or Second Injury Occurred
Danner v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921
FACTS: The claimant testified at a Hearing that on June 4, 2014, as she lifted a patient’s legs to place a wedge underneath them, she felt a pop and immediate pain in her low back. The following day, she sought treatment.
On July 17, 2014, the claimant claimed that she injured her low back again while lifting a patient from the floor to a mattress on the floor. At a Hearing, the claimant testified she felt worsened pain in the “same spot” and that she “aggravated the back” injury from June 4, 2014. She finished her shift and then returned to Dr. Boyett with whom she was treating for her June 4, 2014 injury.
The ALJ found the claimant to be a credible witness as her demeanor was clear and direct and her testimony was consistent with the exhibits in evidence. The Judge also found that claimant is unemployable on the open labor market and was thus permanently and totally disabled.
However, the Judge noted that Dr. Hopkins stated that based on the short period of time between her two injuries with the injuries in the same portion of her body, the doctor believed that her low back injury on July 17, 2014 was a continuation of her first injury just over one month prior. This was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the July 17, 2014 incident was an aggravation or continuation of the June 4, 2014 injury.
Considering all of the medical evidence, along with claimant’s testimony, the Judge found that based upon the overwhelming majority of the expert medical evidence and claimant’s credible testimony, that the claimant failed to meet her burden that she suffered a new and distinct work injury on July 17, 2014. The Court found that the June 4, 2014 work injury in isolation was the prevailing factor causing claimant’s medical condition and disability.
Since the Judge found that the claimant did not suffer a new or distinct work injury on July 17, 2014 but that the claimant’s injuries and disability were the result of the work injury on June 4, 2014, the Court concluded that there was no work injury subsequent to June 4, 2014 that combined with a pre-existing disability to result in the claimant’s permanent total disability. Therefore, the Judge determined that the claimant had failed to meet her burden that the SIF is liable to her for PTD benefits.
HOLDING: The Commission affirmed the Award and decision of the ALJ. The Commission noted the Supreme Court of Missouri’s recent decision in March v. Treasurer of the State of Missouri-Custodian of Second Injury Fund (2022). In that case, the Commission denied a post 2014 SIF claim for PTD where the SIF produced no evidence and the Commission did not discredit the claimant’s experts. The Court held the fact that the SIF did not offer contradicting evidence and did not cross-examine the claimant did not establish a “presumptively valid claim”.
The Commission emphasized that to establish a claim, the claimant must not only meet the burden of production but also the burden of persuasion. In this matter, the Commission found that the claimant’s evidence, though not controverted, is insufficient to support her claim. Therefore the decision and Award of the ALJ was affirmed.
Settlement of Civil Suit Against Uninsured Employer Barred Recovery From Second Injury Fund for Medical Expenses Under Workers’ Compensation Statute
Hood v. Michael Menech, Vandalia Area Historical Society and Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. ED110331 (Mo. App. 2022)
FACTS: On August 20, 2012, claimant was injured when he was working as a carpenter on property owned by the Vandalia Area Historical Society. He was hired by Michael Menech. At the first Hearing, the parties stipulated that neither Vandalia nor Menech carried workers’ compensation insurance. The Judge issued his initial decision finding that Menech was the claimant’s employer, the claimant had incurred $51,183.42 in past medical expenses due to the work-related injury, and the Second Injury Fund was required to reimburse the claimant for past medical expenses and pay future medical benefits pursuant to Section 287.220.
On appeal, the Commission issued a Temporary Award ordering the SIF to pay only $23,226.27 in past medical expenses and to provide claimant with future medical care necessary to cure and relieve the effects of the injury. The Commission noted that the Award was only temporary or partial until further final Award was made.
The claimant also filed a civil action against Vandalia and later amended his Petition to add Michael Menech and additional co-employees as Defendants. Subsequently, the claimant settled his civil suit against all Defendants for $53,000.00. With respect to claimant’s medical bills, the settlement agreement stated that all medical bills must be paid by the claimant from the settlement amount of $53,000.00.
On December 9, 2020, the parties appeared for a final Hearing before the Judge on the claimant’s workers’ compensation claim. The Judge found that, under the Election of Remedies Doctrine, the claimant was not entitled to workers’ compensation benefits from Menech, Vandalia, or the SIF. Further, the Judge ordered claimant to reimburse the SIF for the $23,226.67 it paid to claimant pursuant to the Temporary Award.
On Appeal, the Commission affirmed the ALJ’s decision stating that the Election of Remedies Doctrine applies and it barred the claimant from recovering the payment of his medical bills by the SIF due to his settlement of the civil suit.
HOLDING: The Court of Appeals affirmed the Commission's decision denying claimant’s workers’ compensation benefits and ordering him to reimburse the SIF $23,226.27.
The Court noted the general statement of the law in Brookman v. Henry Transportation that if an employer is not insured and does not qualify as a self-insurer, an employee who is injured in the course of employment can elect to file a workers’ compensation claim or can bring suit against the employer in Circuit Court, but not to both.
In this matter, the Court noted, that although claimant’s civil action included additional parties as co-defendants and its workers’ compensation claim included the SIF, because Menech was party to both the workers’ compensation claim and the civil action, the Election of Remedies Doctrine governs. The claimant’s civil action and settlement with Menech barred the claimant from receiving benefits under the workers’ compensation statute under the Election of Remedies Doctrine. The claimant elected his remedy when he accepted the $53,000.00 settlement payment in his civil action against Menech and Vandalia.
Claimant is Not a Statutory Employee Unless Performing Activities Within the Usual Business of Alleged Employer
Brooks v. William J. Laurie and Crown Center Farms, Inc., Case No. WD85031 (Mo. App. 2022)
FACTS: The claimant suffered an injury while he was employed as a superintendent for Little Dixie Construction while cutting down trees at Big Buck Resort. He was injured when a tree was cut by Defendant Laurie and fell down on him. Laurie was a shareholder and member of Big Buck Resort. Laurie also co-owned Crown Center Farms which employed Tim Cullen to assist with maintaining and caring for Crown Center Farms and various properties owned by Laurie including helping to manage Laurie’s hunting area at Big Buck.
On the day of the incident, Laurie contacted the claimant and requested his assistance at Big Buck. On that day, the people working at Big Buck included the claimant, Laurie, Cullen, and two additional laborers. Following the incident, the claimant filed a workers’ compensation claim against Little Dixie Construction for the injuries sustained while working at Big Buck. The claimant also filed a civil suit against Laurie, Crown Center Farms, and Big Buck.
The Court dismissed the lawsuit based on a Summary Judgment as it found Crown Center Farms was a statutory employer of claimant, so as to trigger the exclusive remedy provision of the workers’ compensation law. It also found Laurie was an employee of Crown Center Farms so as to shield Laurie from liability under the workers’ compensation law. The claimant appealed.
HOLDING: The Appellate Court reversed the trial Court’s judgment and reinstated the lawsuit. The Court stated that pursuant to statute for a person to be a statutory employer, the work done under the contract on the premises must be “an operation of the usual business which he there carries on…”. It noted that in this case there was a genuine issue of material fact regarding whether the claimant was injured while doing work in the usual course of Crown Center Farms’ business in order to qualify as a statutory employee. Specifically, the cutting of trees at Big Buck was rarely performed and Big Buck usually employed a professional logger to clear the property.
The Court did not find that the claimant was performing work that was within the usual business of Crown Center Farms. Also, Laurie was not entitled to the protection of the workers’ compensation law under immunity as an employee of Crown Center Farms as Crown Center Farms was not the claimant’s statutory employer.
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
July 2022 – September 2022
Lamy v. Stahl Specialty Co., Case No. WD85163 (Mo. App. 2022)
FACTS: The claimant filed a claim for an injury on August 26, 2016, to his left upper extremity. The employer referred the claimant to Dr. McNamara for left shoulder pain and numbness and tingling in his left hand. Dr. McNamara performed left shoulder surgery on October 11, 2016. In his notes from the February 13, 2017, appointment, Dr. McNamara indicated the claimant had left carpal tunnel syndrome that might require further treatment. The claimant’s attorney had the claimant examined by Dr. Stuckmeyer on November 9, 2017, who opined that the claimant had left carpal tunnel syndrome related to his work and might require further surgery. Thereafter, the claimant settled his August 2016 claim for 12.5% of the left shoulder. He initialed the Stipulation that he had full awareness of the consequence of the settlement and the ALJ approved the settlement on May 2, 2018.
The claimant filed a second claim on June 26, 2018, alleging injury to the left wrist on February 13, 2017, the date on which Dr. McNamara advised that the claimant still suffered from left carpal tunnel and required treatment. In his report dated August 19, 2019, he opined that the claimant’s left-hand complaints were related to his repetitive work that had been the subject of the August 2016 claim.
HOLDING: The ALJ denied claimant’s February 2017 claim noting that the prevailing factor for claimant’s left carpal tunnel was the same prevailing factor that gave rise to the claimant’s 2016 claim which the claimant voluntarily settled, despite knowing that both physicians had diagnosed him with left carpal tunnel that might require surgery. The Commission affirmed the Judge’s decision and the claimant appealed.
The Court affirmed the decision of the Commission. The Court stated that the Commission did not commit legal error, when it found based on uncontested facts, that pursuant to Section 287.390, that the compromise settlement exhausted the Commission’s jurisdiction to reopen the August 2016 claim to consider the February 2017 claim. There was no showing of fraud or undue influence. The claimant knew he had a repetitive injury to his left wrist, a portion of his left upper extremity, when he entered the settlement for the August 2016 claim for repetitive injury to the left upper extremity.
Claimant Must Present Sufficient Evidence to Establish that a Work-Related Exposure is The Prevailing Factor Causing Occupational Disease
Hanes v. Department of Corrections, Missouri Office of Administration, CARO, and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-124885
FACTS: At Hearing, the claimant testified that his for job from 1991 through 1998, he was in charge of taking inmates for medical procedures and that x-rays were involved 2-3 times per week from 1993 to 1998 but provided no additional detail. The claimant testified he was not provided protective gear in contrast to the testimony of Dr. Kibby who testified that the claimant told him he was protected. The Judge found the claimant did not establish the nature of the exposure and duration of the exposure, the frequency of the exposure, and the radiation levels which he may have been subjected. Dr. Kibby did not connect the claimant’s condition back to his job duties.
The Judge found the testimony of Dr. Parmet lacking in specificity and his ultimate opinion that the claimant had no other known cause of potential conditions which would lead to thyroid cancer did not establish that his job was the prevailing factor in causing his cancer.
HOLDING: The Judge found that pursuant to Section 287.067, the claimant failed to meet his burden of proof that he was exposed to an occupational disease which would require a demonstration of greater risk of exposure to the disease at work than other persons have in ordinary life, and also to show that the exposure was the prevailing factor in causing any illness. On appeal, the Commission affirmed the Award of the ALJ.
Claimant’s Bilateral Carpal Tunnel Syndrome Resulted from Longstanding Occupational Exposure from First Employer Despite Limited Exposure with Concurrent Second Employer
Porter v. St. Louis Post-Dispatch LLC/Lee Enterprise and CCL Label, Inc./CCL Industries Corp., Injury No. 17-013765
FACTS: On March 6, 2017, the claimant was employed by both the Post-Dispatch and CCL. The claimant began working for the Post-Dispatch in 2001. She worked at a machine that placed inserts in the newspapers. When the claimant first started working at the Post-Dispatch, she worked 40 hours or more a week. However, when she started working at LLC in 2012, she reduced her hours at the Post-Dispatch. The claimant worked over 40 hours a week at CCL. She would work 10 hours or overtime every 2 weeks. At CCL, the claimant inspected labels for medicine bottles and would only pick up a few labels at a time. She was also diagnosed with diabetes in 2016.
The claimant was working two jobs at the time she developed carpal tunnel symptoms, however, her job duties at the Post-Dispatch were much more strenuous and fast paced than those at CCL. The Post-Dispatch focused on the fact that the claimant was working part-time when she developed carpal tunnel symptoms. However, Dr. Schlafly testified that the claimant’s cumulated exposures for developing carpal tunnel syndrome increased while working at the Post-Dispatch as time progressed, even after her working hours reduced, because she continued to be exposed to the risk unabated.
The ALJ concluded that the claimant’s job duties at the Post-Dispatch were the prevailing factor in the development of bilateral carpal tunnel syndrome and therefore they were responsible for treatment and CCL did not have any liability.
HOLDING: The Temporary Award of the ALJ was appealed to the Commission. The Commission noted that Commission Rule 8CSR02-3.010 specifies when an Application to Review a temporary or partial Award may be filed. The rule allows a party who feels aggrieved by the issuance of a temporary or partial Award by an ALJ to petition the Commission to review the evidence upon the grounds that the applicant is not liable for payment of any compensation.
With respect to the Judge’s finding that “claimant’s diabetes was under control” was without support in the medical evidence, the Commission noted that Dr. Schlafly’s deposition testimony indicated that the employee’s diabetes was “well controlled as of the blood tests of February 10, 2017.”
Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission found that the Award of the ALJ was supported by competent and substantial evidence.
Evidence Must Persuasively Establish that Work Related Injuries Combine with Pre-existing Conditions to Render Claimant PTD
March v. Treasurer of the State of Missouri/Custodian of The Second Injury Fund, Case No. SC99381 (Mo. App. 2022)
FACTS: As a result of the primary 2015 occupational disease claim, the claimant underwent a repair a tear to his left rotator cuff, an injury to his right finger, and carpal tunnel. The claimant missed work due to these injuries but returned to work without restrictions. Before the claimant suffered the primary injury, he endured other health issues, including: morbid obesity, thyroid issues, hypertension, TIA, atrial fibrillation, asthma, a previous left rotator cuff tear, and a left leg laceration. The prior left leg laceration had created blood flow issues. The preexisting medical condition to the bilateral lower extremity included symptoms of edema and pain radiating down both legs into the ankles, secondary to morbid obesity and venous varicosities associated with obesity.
At the hearing, the claimant explained that after treating for his upper extremities, he was able to return to work. However, he stated that his leg conditions worsened due to standing at work. Both of the testifying experts, Dr. Hopkins and Dr. Waldschmidt agreed that standing for long hours during the course of employment aggravated and necessitated the claimant’s need for ablation and aggravated his preexisting venous condition in his lower extremities.
The claimant also offered at the Hearing the vocational report of Ms. Skahan who opined that the claimant was vocationally disabled due to the work injuries to his upper extremities in April 2015 and the progressive disabilities from his venous condition and aggravation from his work activities to the bilateral lower extremities around the same time frame of April 2015.
The ALJ determined that the greater weight of the testimony led her to conclude that the claimant had not met his burden of proof to establish Fund liability because the claimant’s lower extremity conditions which preexisted the work injury, were actively being treated and significantly deteriorated after the work-related accident. The Judge further found that there was no aggravation or acceleration of the work-related accident to combine to make the claimant permanently and totally disabled.
The Commission agreed that the Fund was not liable for PTD benefits because the claimant failed to meet his burden of persuasion. They were not persuaded that the combination of the claimant’s preexisting injuries and his primary injury resulted in the claimant’s PTD.
HOLDING: The claimant appealed, and the Court affirmed the Commission’s decision. The Court held the Commission appropriately found it was not persuaded that the combination of his preexisting disability and his primary injuries entitled him to PTD benefits because it was “equally likely” that his preexisting disabilities alone rendered him permanently and totally disabled.
No Fund Liability for PTD When Claimant Failed to Establish a New, Second Work Injury Combined with First Work Injury Alone Rendering Claimant PTD
Danner v. Missouri Department of Public Safety (settled), Missouri Office of Administration Caro (settled) and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921
FACTS: The claimant and employer settled the claims for both the work injury of 6/4/2014 and the alleged work injury of 7/17/14 both involving the low back. Dr. Hopkins stated that based on the short period of time between the two injuries he believed that her low back injury on July 17, 2014, was a continuation of her first injury, just over one month prior. This statement was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the 7/17/2014 incident was an aggravation or continuation of the 6/4/14 injury.
Therefore, at Hearing, the Judge stated that based upon the overwhelming majority of the expert’s medical evidence, the claimant failed to meet her burden that she suffered a new and distinct work injury on 7/17/14. Therefore, the Judge found that the 6/4/14 work injury in isolation was the prevailing factor in causing the claimant’s medical condition and disability.
The ALJ concluded that there was no work injury after 6/4/2014 that combined with a preexisting disability to result in the claimant’s permanent total disability. Therefore, the ALJ found that the claimant had failed to meet her burden that the Fund was liable for her PTD benefits.
HOLDING: On appeal, the Commission affirmed the decision of the ALJ. They noted that the Judge awarded compensation for the June 4, 2014 work injury. They also agreed with the Judge’s finding that the testimony of the employee and her experts, although unimpeached and found credible, failed to persuade the ALJ that the employee’s July 17, 2014 work event constituted a new and distinct injury separate from her prior work-related lifting injury of June 4, 2014. The Judge did not violate Section 287.800.2 by failing to weigh the evidence impartially or unfairly giving the benefit of the doubt to the Fund when it was found that the evidence the employee produced was insufficient to establish the elements of her claim.
The Commission relied on the recently decided case of March, (as discussed above) that stated that in order to establish a claim, the employee must not only meet her burden of production, but also the burden of persuasion. It noted that in March, the Court held that the fact that the Fund did not offer contradicting evidence and did not cross examine the employee, did not establish a presumptively valid claim and denied a post 2014 Fund claim for PTD.
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.
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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.