State News : Missouri

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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.