State News : Missouri

Simon Law Group, P.C.

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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.