State News : Missouri

Simon Law Group, P.C.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2025 – March 2025

 Claimant's Risk of Injury Failed to Meet the Test of Equal Exposure in Everyday, Nonemployment Life

Johnson v. OATS Inc., Injury No: 23-047500

FACTS: Claimant was a bus driver for Employer’s passenger transportation service. She kept Employer’s vehicle in her home’s driveway to avoid vandalism and gas theft, which had happened when Employer’s vehicles were parked elsewhere. Employer’s written policy required driver to conduct “pre-trip” vehicle maintenance. Claimant was performing this task on the morning of July 13, 2023, after a rainy night. She walked through the grass in her yard to retrieve plastic bags in her kitchen, where she intended to place the paper towels she had used to clean up sweet tea. The plastic bags were usually stored on Employer’s bus, but the bus supply had been depleted. Claimant’s canvas sports shoes, required by Employer, were wet due to her walking on the grass. Claimant testified that her water-soaked shoes caused her to slip and fall on her kitchen floor. As a result of the fall, she sustained fractures to her left wrist.

The main issue at the hearing was whether Claimant’s work event on July 13, 2023, arose out of  and in the course of her employment. The ALJ determined that the injury was compensable. Employer appealed.

HOLDING: In their review, the Commission reviewed Section 287.020.3 (2) and compared this matter to the Court’s decision in Johme v. St. John’s Mercy Health Care.

The Commission agreed with prior case law that the equal exposure consideration should center on whether Claimant was injured because she was at work, rather than simply while at work. They noted that the source of the risk in Johme was Claimant’s decision to twist while turning, which resulted in her injury. In applying the Johme analysis to this matter, the Commission stated that the risk source was slipping while walking on her kitchen floor in her home in wet shoes.

The Commission concluded that in this case, no aspect of Claimant’s job required her to go inside her home to retrieve plastic bags from her kitchen to clean Employer’s van. Claimant may have been doing something related or incidental to work; however, retrieving trash bags to clean up Employer’s van failed to meet the test of equal exposure. Claimant’s risk of slipping and falling on her kitchen floor was a risk to which Claimant was equally exposed in her everyday, non-employment life and therefore her injury was not compensable and the claim was denied.  

Please note that on February 6, 2025, the Commission vacated the Award upon approval of the parties’ settlement

Following Refusal of Claimant's Demand for Further Medical Care, Employer is Liable for Unauthorized Treatment if Reasonable and Necessary

Erwin v. Midway Arms, Inc, Case No. WD87161 (Mo. App. 2025)

FACTS: On January 3, 2017, Claimant suffered a low back injury while loading a truck with boxes. On January 12, 2017, he was first seen by “Doctor”, the authorized treating physician selected by Employer, who diagnosed a large L5-S1 herniation. After several follow-up visits and physical therapy, on June 7, 2017, Doctor concluded that Claimant had reached MMI. Thereafter, Claimant’s attorney sent multiple letters to Employer’s attorney demanding additional treatment as well as advising that Claimant had become “suicidal from his chronic back pain” and that he urgently needed additional treatment for both his back pain and psychiatric condition that had developed as a result of the back pain.

Employer’s attorney acknowledged the demand for treatment but advised that they wanted to conclude their investigation, including taking Claimant’s deposition. Following the deposition, Employer’s attorney sent a letter to Claimant’s attorney which stated that Claimant was at MMI based on Doctor’s medical report.

At the hearing, however, Doctor would later testify that Employer never notified him of Claimant’s attorney’s letters detailing Claimant’s worsening condition, new symptoms, and requests for additional medical care. Doctor testified he would have wanted to see Claimant immediately for the new complaints and suicidal ideation. In his deposition, Doctor ultimately concluded that it was reasonable for Claimant to seek treatment elsewhere after Employer refused to authorize further medical treatment.

Following the hearing, the ALJ ordered Employer to pay $114,950.23 for denied past medical expenses and sanctioned employer for its unreasonable and outrageous conduct by ordering the payment of “25% of all amounts awarded herein ($189,607.37), or $47,401.84, plus costs of $11,979.52 for total sanctions in the amount of $59,381.36.”

Employer appealed to the Commission, who reversed the ALJ’s award as to Employer’s responsibility for payment of past medical expenses, concluding that Claimant did not “sufficiently notify Employer” of the need for additional medical treatment—and reversed the ALJ’s Award of sanctions—concluding that Employer’s conduct did not fit the “unreasonable and outrageous” standard for awarding such sanctions.

HOLDING: Claimant appealed the decision of the Commission, and ultimately the Court awarded the past medical benefits but did not place sanctions on Employer.

The Court noted that in this case, the ALJ and the Commission both concluded that the treatment in question was both medically necessary and causally connected to the January 3, 2017 injury. That conclusion was not challenged on appeal. The only relevant issues before the Court was whether a demand for further treatment was made to the Employer; whether the demand was refused or ignored; and if the demand was refused or ignored, whether Claimant was required by law to update Employer on the course of his additional treatment.

Upon review of the record, the Court found that Claimant made multiple demands to the Employer to provide further medical aid and that Employer responded to those demands by both ignoring, and later, explicitly refusing to authorize additional medical treatment.

The Court concluded that because Employer’s August 21, 2017 denial letter to Claimant’s attorney constituted a complete and unconditional refusal of Claimant’s demand for further medical care, Claimant became free to select his own doctor for further treatment of the work-related injury, and Employer became liable for that treatment—so long as the treatment was later deemed reasonable and medically necessary. 

With regard to the issue of sanctions, the Court noted that Employer relied in good faith on the doctor’s medical opinion in his report dated June 7, 2017, when he concluded that Claimant had reached MMI. They noted that “Doctor was a moving target on his medical opinion” with regard to the opinions in his report compared to his testimony three years later. Employer was entitled to rely upon Doctor’s medical opinion, even though the new opinion on causation directly contradicted the opinions Doctor had previously held three years prior. Therefore, under these circumstances, the Employer’s conduct did not rise to the level of conduct necessitating sanctions.

If the Primary Injury Alone Renders Claimant PTD, then the SIF is Not Liable         

Balliu v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD87032 (Mo. App. 2025)

FACTS: In 1999, Claimant suffered a work-related bilateral hernia but did not pursue a claim. He returned to the same position without any formal restrictions or accommodations. In 2004, the Claimant suffered a right-sided hernia. After another successful hernia repair surgery, he continued to perform the same work tasks. On May 16, 2015, Claimant suffered the primary injury and was diagnosed with ilioinguinal neuralgia resulting from impingement of his ilioinguinal nerve. Despite treatment, Claimant’s condition did not improve. He reached MMI on October 20, 2015 and never returned to work due to his pain.

Claimant settled his 2015 claim against Employer for $84,141.12 for TTD, medical treatment, and a lump sum payment based on a stipulated PPD of 25% of the body. He then pursued a PTD claim against the SIF, contending that his 1999 hernia created disability that combined with his 2015 injury to leave him PTD.

Claimant presented an original IME report that determined that he suffered from ilioinguinal neuralgia and nerve pain in the area of his prior hernia repair surgeries on the right side, and that his 2015 primary injury was “the direct, proximate, and prevailing factor” causing his pain, and that the 2015 primary injury “in isolation alone” required work restrictions and accommodations. The IME physician rated Claimant’s primary injury at 25% of the body and concluded that Claimant would likely be unemployable as a result of the primary injury if his condition could not be improved. The physician also concluded that the “preexisting disability of the 1999 work-related injury directly and significantly aggravated and accelerated the subsequent work-related injury of May 6, 2015.”

Subsequently, the physician prepared an addendum IME report which stated that he believed Claimant’s 1999 hernia left him with 15% PPD of the body (“preexisting disability”) and made his 2015 injury more likely to occur. However, the addendum report concluded that “the restrictions for the May 6, 2015, work injury should be unchanged when considering his preexisting work injury of 1999.” Claimant also submitted the opinion of a vocational expert who considered the restrictions following Claimant’s 2015 primary injury alone to be totally disabling.

The ALJ determined that Claimant was not entitled to compensation from the SIF. The Commission adopted the ALJ’s findings.

HOLDING: Claimant appealed the decision to the Commission, which confirmed that the SIF was not liable for benefits and the Court affirmed.

The Court noted that Claimant did not contest that the 2015 primary injury—ilioinguinal  neuralgia—is the disabling injury. Instead, he argued that the scar tissue from the 1999 repair of the work-related hernia contributed to cause the ultimate ilioinguinal neuralgia condition. However, the Court stated that this is not a case in which the cause of the primary injury is contested; instead, the question is whether the condition of the 2015 primary injury—ilioinguinal

neuralgia—created physical restrictions of such magnitude that Claimant was no longer employable.

The Court found that the overwhelming evidence presented to the Commission is that the 2015 primary injury alone, no matter what caused it, created Claimant’s permanent total disability, so the SIF has no liability. The Court concluded that if the primary injury alone amounts to PTD, the SIF is not liable because the primary injury did not combine with preexisting disability to create PTD.

PTD Claim Against SIF Denied when Expert Included Nonqualifying Disability in Medical Opinion

Thomas v. Collins and Hermann, Inc. and Second Injury Fund, Case No. ED112795 (Mo. App. 2025)

FACTS: In 1993, Claimant sustained a right knee injury in Des Moines, Iowa, when he slipped on ice at work, and received benefits but did not seek a workers’ compensation settlement for this injury. In 1994, Claimant injured his left knee while working in Missouri and settled this claim for 25%  of the knee. The settlement stated that the SIF was liable for preexisting disability to his right knee at 25% PPD with a 15% loading factor.

Claimant continued to work for the next 20 years. He experienced increased bilateral knee complaints. On November 25, 2015, Claimant tore his left rotator cuff at work. He underwent surgical repair and in May 2016, Employer’s physician placed him at MMI and stated he could return to work without restrictions. Claimant returned to work but was placed on light duty. He was terminated from his employment in July 2016, and did not work thereafter.

Claimant went to a Hearing against Employer and the SIF. The parties asked the ALJ to determine whether Employer was liable for PPD or PTD benefits, and the nature and extent of the SIF’s liability.

Claimant’s medical expert assigned 40% PPD to Claimant’s left shoulder and 50% PPD for the Claimant’s knees, which he recognized was larger than the earlier settlement percentage, explaining that Claimant’s knees were considerably worse due to arthritis, which dated back to his 1993 and 1994 knee injuries. The expert also opined that if a vocational assessment was unable to identify a job for which Claimant was suited, he would find Claimant PTD because of the primary left shoulder injury “in combination with his preexisting medical conditions,” which included both knees. 

After the hearing, the ALJ found Claimant’s testimony credible and the experts persuasive. The ALJ determined Claimant sustained 32.5% PPD of the left shoulder and 12.5% PPD for psychiatric disabilities, all attributed to the primary injury for which Employer was liable. The ALJ found both prior knee injuries were work-related and resulted in 45% PPD to each knee. The ALJ recognized that Claimant settled his claim for both knees at 25% PPD but found that there was “no question his knees had gotten much worse since that time.” The ALJ then determined these disabilities qualified under the statute because they arose from work injuries and equaled more than 50 weeks. The ALJ concluded that Claimant was PTD due to a combination of his primary and preexisting injuries and disabilities, and found the SIF was liable for PTD benefits.

The SIF appealed to the Commission which found Claimant’s right knee disability was not a statutorily-defined compensable injury, and it was improperly included in the PTD analysis. The Commission determined Claimant did not allege that his Employer in Iowa nor his Iowa accident or injury were covered by the Missouri Workers’ Compensation law. The Commission also found Claimant presented no credible or persuasive evidence that his right knee injury was compensable under Iowa’s worker compensation law. Under strict construction, the Commission stated Claimant’s Iowa accident did not qualify for SIF liability because this injury in another state was not compensable under Section 287.020.

Because Claimant’s experts included the nonqualifying disability in forming their opinions, the Commission found Claimant failed to produce credible and persuasive evidence to make a compensable PTD claim against the Fund.

HOLDING: Claimant appealed the Commission’s decision but the Court confirmed the denial of benefits. The Court found that Claimant did not meet his burden in demonstrating his right knee disability was a compensable injury and since Claimant’s experts incorporated his nonqualifying preexisting right knee disability into their PTD opinions, it was immaterial whether his preexisting disabilities met the 50-week threshold to qualify for SIF benefits. Also, because Claimant did not raise to the ALJ or the Commission the legal assertion that he would be left without a remedy if SIF liability were denied despite being PTD, his claim was not preserved for appellate review.

The Statute Does Not Permit Prior Enhanced PPD for an Otherwise Nonqualifying Injury for SIF Liability

Walton v. Treasurer of Missouri as Custodian of Second Injury Fund, Case No. SD38504 (Mo. App. 2025)

FACTS: Claimant sustained three work-related injuries during his career as a diesel mechanic. The first injury occurred in 1992 when he injured his left shoulder resulting in 20% PPD to the left shoulder (46.4 weeks) paid by Employer. The second injury to his lower back occurred in 2005 and he received a settlement of 30% PPD of the body (120 weeks). Additionally, in a settlement with the SIF, the Fund paid 16.64 weeks of enhanced PPD. “Enhanced PPD” is a special or additional allowance for cumulative disabilities from multiple injuries.

In the SIF settlement, Claimant agreed that the 1992 left shoulder injury was worth 46.4 weeks; the 2005 lower back injury was worth 120 weeks; and the “synergistic effect” of these combined injuries (166.4 weeks) was 10%, equaling 16.4 weeks.

The third injury, the primary injury, occurred on July 17, 2017, when Claimant fell out of a truck, was knocked unconscious, suffered a concussion, and was diagnosed with scalp laceration, right shoulder strain, chronic right-sided lower back pain and right-sided sciatica. Claimant was later diagnosed with right cervical radiculopathy, impingement syndrome, various injuries to his biceps and neurocognitive disorder due to the concussion he sustained from the fall.

Dr. Mullins found PTD resulting from a combination of the 1992 left shoulder, 2005 lower back, and primary injuries. Specifically, Dr. Mullins found a “synergism” existed from the combination of the primary injury, which injured the right shoulder, and the preexisting 1992 left shoulder injury, because both shoulders were injured and unable to compensate for each other. While Dr. Mullins did not expressly assign “51.04 weeks” to the left shoulder in his report, Claimant argued that this total, represented by the 1992 left shoulder injury (46.4 weeks) and a portion of the enhanced PPD represented the left shoulder (4.64 weeks) was the basis for Dr. Mullins’s PTD determination.

Following the hearing, the ALJ issued an Award finding that Claimant failed to prove that he was entitled to PTD benefits. Specifically, the ALJ found that the left shoulder disability was 46.4 weeks—3.6 weeks short of the 50-week threshold required by statute. Claimant then appealed the Award to the Commission, arguing the ALJ erred by ignoring the enhanced PPD paid by the Fund.

The Commission affirmed the Award of the ALJ finding that it was supported by competent and substantial evidence, including Claimant’s own testimony that he did not have difficulty with his left shoulder prior to the primary injury, Dr. Koprivica’s rating of 46.4 weeks PPD to the left shoulder, Dr. Mullins’ reliance on said rating, and Dr. Lennard’s findings regarding the left shoulder.

HOLDING: Claimant appealed arguing that a portion of the prior enhanced PPD Award can be used to add additional weeks of compensation to an otherwise non-qualifying injury to determine whether such injury makes the 50-week threshold.

The Court looked at the language of the statute and noted that under strict construction the Commission was correct in finding that Claimant had a medically documented preexisting disability to his left shoulder that was a direct result of a 1992 left shoulder injury. However, standing alone, this preexisting disability was nonqualifying because it did not meet the 50-week threshold required by Subsection 3.

The Court concluded that because Section 287.220.3 does not permit a prior enhanced PPD Award to be used to add additional weeks of compensation to an otherwise non-qualifying injury, Claimant’s argument was denied and the Commission’s decision was affirmed.