State News : Missouri

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Missouri

SIMON LAW GROUP, P.C.

  314-621-4646

                                              Simon Law Group, P.C.

                          701 Market Street, Suite 340, St. Louis, MO  63101

                                                      314-621-2828

            MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                      October 2024 – December 2024

 

Claimant Has Burden to Prove Medical Causation Using “Prevailing Factor” Standard Based on Entire Medical Testimony

Fernandez v. Smithfield Foods, Inc., Case No. WD86421 (Mo. App. 2024)

FACTS: Claimant was walking down the stairs when he lost his footing. He was able to keep himself upright while holding onto the railing, but his left foot “skidded” down three steps. Two days later he was seen at Concentra and diagnosed with a strain of his left knee. The claim was denied and claimant sought medical treatment on his own and underwent an MRI which revealed severe lateral patellofemoral osteoarthritis in his left knee.

Subsequently, a hardship hearing was held. Dr. Z. performed a medical evaluation at claimant’s request and concluded that claimant had not yet reached MMI and that additional treatment would be required. During his deposition, Dr. Z. testified that it is not unusual for a person with patellofemoral osteoarthritis to be asymptomatic but then to develop pain after an incident. Dr. Z. testified that claimant’s condition was the result of the work accident.

Dr. S., an orthopedic surgeon, the employer’s expert testified that claimant’s arthritic changes, combined with his underlying obesity, are likely the source of his persistent difficulties and problems. Dr. S. determined that the arthritic changes to claimant’s left knee preexisted the accident and that the symptoms were “aggravated at the time of the incident”, but that the arthritis itself was not caused by or worsened by the work accident. Dr. S. further opined that claimant had 0% PPD as a result of the accident and he had reached MMI.

The ALJ issued a Temporary Award and found that the accident aggravated claimant’s underlying preexisting condition. The judge ordered employer to provide claimant with additional medical care. Employer appealed to the Commission and reversed the ALJ and denied compensation.

The Commission focused on whether the accident was the prevailing factor resulting in the claimant’s injury. The Final Award found that neither Dr. Z. nor Dr. S. opined that claimant’s work injury was the prevailing factor in causing claimant’s left knee pain and discomfort. The Commission concluded because Dr. Z. “vaguely described” the condition of claimant’s left knee as “pain and discomfort due to inflammation”, Dr. Z’s report and testimony did not establish that the accident was the prevailing factor causing both claimant’s medical condition and disability. Therefore, the Commission found that claimant failed to meet his burden on the issue of medical causation and denied compensation. Claimant appealed.

HOLDING: The Court pointed out that claimant had the burden of proving that he was entitled to workers’ compensation under Chapter 287. As such, the claimant had the burden to prove both: (1) that he suffered an accident, as defined as “an unexpected traumatic event or unusual strain. . .”; and (2) that he suffered an injury, defined as “an injury which has arisen out of and in the course of employment.” These definitions further make clear that “an injury is not compensable because work was a triggering or precipitating factor.” Further, an injury arises out of and in the course of employment “only if the accident was the prevailing factor in causing both the resulting medical condition and disability.”

The Court noted prior precedents that “[t]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation, and not substantial evidence.” The Court stated that the Commission considered the competing expert opinions as to causation, and then accepted Dr. S’s opinion as credible and persuasive in establishing that the cause of the current condition of claimant’s left knee were the arthritic changes combined with his obesity, not the work incident. Therefore, the Court affirmed the Commission’s decision.

Routine Performance of Duties for Employer’s Usual Business Activities Qualified Claimant as a Statutory Employee

Montgomery v. Cores Lab Structures, Inc., Case No. WD86910 (Mo. App. 2024)

FACTS: Claimant was loading a concrete beam onto a trailer when a Cores Lab employee hit the beam with a Cores Lab vehicle, striking claimant in the back and throwing him from the trailer. Claimant suffered injuries to his back and knee. Claimant had not sought nor recovered workers’ compensation benefits from Cores Lab for his injuries.

On the day of the incident, claimant was working as a driver for Becker Trucking. He used a tractor which was owned by Becker to haul and deliver Cores Lab products in accordance with a contract between Becker and Cores Lab. Pursuant to this contract, Becker had been occasionally hired by Cores Lab since 2016 to provide supplemental drivers as needed when Cores Lab did not have enough truck drivers of its own. In the absence of the contract with Becker, Cores Lab would have had to hire additional truck drivers. Claimant was compensated for each job he completed for Becker as an independent contractor.

Subsequent to the accident, claimant filed a civils suit against Cores Lab alleging negligence. Cores Lab argued that the claimant was a “statutory employee” of Cores Lab and that the exclusive remedy for his injuries was workers’ compensation.

Claimant appealed the trial court’s finding that Cores Lab was a statutory employee, and that Cores Lab was liable under the Missouri Workers’ Compensation Law for claimant’s injuries.

HOLDING: The Court noted that exclusive liability of an employer under the Workers’ Compensation Law extends to “any person who has worked under contract on or about his premises which is an operation of the usual business which he there carries on.” Thus, any person who qualifies as a “statutory employee” is exclusively entitled to recovery under the workers’ compensation law for injuries arising out of and in the course of a statutory employer’s business irrespective of negligence.

Claimant was performing work for Cores Lab under contract, and he was injured on Cores Lab’s premises, two of the three essential elements of statutory employee status. Claimant asserted, however, that the work he was performing was not an operation of usual business of Cores Lab.

The Court noted that an employer’s “usual business” is defined as those activities (1) that are routinely done (2) on a regular and frequent schedule (3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time and (4) the performance of which would require the statutory employer to hire employees absent the agreement.

The Court stated that here, claimant argued that the work he was performing was not in Cores Lab’s “usual business” because Becker was only called upon by Cores Lab from time to time as needed. He argued that this rendered the work he was performing to be “episodic” and “sporadic”. The Court disagreed.

Cores Lab stated that hauling the concrete beams it makes to its customers is routinely done by Cores Lab on a regular and frequent basis. Claimant admitted that Cores Lab routinely, over the course of many years, contracts with Becker to haul its beams. Finally, if Cores Lab did not have its agreement with Becker, it would have to hire more in-house permanent truck drivers, a “fact” relevant to the fourth part of the definition of “usual business of an employer”. The Court affirmed the trial court’s judgment.

Settlement Agreements for Repaying Subrogation Apply Only to the Balance of the Recovery Per the Statutory Provision

Wolk, et al., v. Grinnell Mutual Reinsurance Co., Case No. ED112371 (Mo. App. 2024)

FACTS: Claimants, Wolk and Meyer, were injured while working for their Employer. The employer/insurer, paid Claimant Wolk $900,969.83 and Claimant Meyer $815,829.47 as compensation for their injuries under the Workers’ Compensation Act.

Claimants brought a personal injury suit against multiple third parties. Before that suit went to trial, one of the defendants settled with claimants for a total of $1,000,000, the limits of its insurance policy. As a result, each claimant repaid employer/insurer $113,517.05, a portion of the workers’ compensation benefits to them.

Each claimant separately entered a settlement agreement with employer/insurer in anticipation of any future award claimants might receive from the ongoing personal injury suit. The Settlement Agreement stated: “this is a compromise of a disputed case with respect to subrogation rights arising under Section 287.150”, the statute laying out subrogation interests.

Thereafter, a dispute came about between claimants and the employer’s insurer, over the employer/insurer’s workers’ compensation subrogation lien. After the parties entered a settlement agreement to resolve this dispute, claimants sought a declaratory judgment from the trial court interpreting Section 287.150.3 and their agreement. Claimants argued the trial court erred in awarding employer/insurer the entire amount of its lien, and that the agreement should be rescinded due to a mutual mistake. The Court did not rescind the agreement.

HOLDING: In their first point, claimants argued the trial court erred in awarding employer/insurer the entire amount of its expenses because Section 287.150.3 did not allow the employer/insurer to recoup its attorney’s fees and expenses from claimant’s share of the recovery.

Section 287.150.3 states “Whenever recovery against the third person is effected by the employee or his defendants, the employer shall pay from his share of recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fees have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee. Notwithstanding the foregoing provisions, the balance of the recovery may be divided between the employer and the employee or his dependents as they may otherwise agree. . .”

In this case, after the expenses of the recovery were deducted, including reasonable attorney’s fees, then the balance of the recovery could be distributed per the terms of the settlement agreement.  

The Court noted that this approach was consistent with the seminal case interpreting Section 287.150.3, Ruediger. The Court stated that here, the parties entered a settlement agreement in which they agreed to a division of the balance of the recovery. Contrary to the claimants’ argument, the trial court correctly determined the balance of recovery according to the statute and the Ruediger formula, then applied the terms of the settlement agreement to determine the employer/insurer’s share of the balance of recovery after deducting attorney’s fees.

With respect to the second point on appeal, the Court noted that the settlement agreement did not result from a mutual mistake. Mutual mistakes occur when there is a mistaken belief among both parties as to a past or present material fact regarding the contract. A mutual mistake is not a ground for rescission where such mistakes become evident through the passage of time. Therefore, the Court affirmed the trial court's amended judgment.

Application Is Sufficient If It Provides Opposing Parties Notice of Issues to Be Addressed

Emmerson v. Prestressed Casting Co. and Second Injury Fund, Case Nos. SD38424, 3834 (Mo. App. 2024)

FACTS: The ALJ issued an Award finding that claimant was PTD due to the work accident alone, that the Fund had no liability and that the employer was liable for future medical treatment.

Employer timely filed an Application For Review (AFR) to the Commission. Claimant filed a response to employer’s AFR and provided detailed responses to each of the employer’s arguments. Thereafter, claimant filed a Motion to Dismiss Employer’s AFR for failure to comply with the requirements of 8C.S.R.20-3.030(3)(a).

The Commission issued an order denying the Motion to Dismiss. In part, the Commission stated: “we exercise our discretion under 8C.S.R.20-4.030(3)(a) and decline to dismiss Employer’s Application For Review. Although Employer’s Application could certainly be more specific in terms of announcing its position concerning the controlling issues that appear to be involved in the case, we believe the Employer’s Application For Review satisfies the minimum requirements under our rule, in that Employer has challenged, with adequate specificity, the ALJ’s findings and conclusions with regard to the issue of whether the Fund or Employer is liable for payment of permanent total disability benefits.”

HOLDING: The claimant and the Fund appealed the decision alleging that the Commission acted without or in excess of its powers.

In reviewing a Commission’s decision to accept or dismiss an Application for Review, the only ground for the Court’s review is whether the Commission acted “without or in excess of its power.”

The Court agreed with the Commission. Although not perfect, employer’s allegations contained enough details such that employer’s AFR was sufficient for purposes of the statutory requirements. Such sufficiency is evidenced by the fact that claimant was able to respond in detail to the allegations to employer’s AFR, and that the issues addressed in claimant’s response were the same issues that the Commission relied upon in entering their own findings. This demonstrated that the AFR was sufficient to put claimant and the Fund on notice of those issues to be addressed by the Commission. The Court affirmed the decision of the Commission.

Surviving Dependent Entitled to Benefits Upon Substitution of Parties If Requirements Under Schoemehl Decision Are Met

Ellsworth v. Wayne County, Missouri and Missouri Association of Counties, Case No. SD37237 (Mo. App. 2024)

FACTS: Employee was involved in a motor vehicle accident on March 30, 2007. He sustained a traumatic brain injury and ALJ issued an Award on May 11, 2016 finding him PTD and in need of future medical care. Employer was ordered to pay employee $236.69 per week, and denied a reduction based on an alleged safety violation. The ALJ also found that Wife was married to employee and that she was his sole dependent. Employer filed a timely notice of appeal with the Commission only raising the issue as to whether employer was entitled to a reduction for a safety violation. The Commission affirmed the Award and employer appealed again.  Employee died on April 13, 2017, while the appeal at the appellate level was pending.

On May 4, 2017, Wife filed an amended Claim for Compensation with the Commission. Wife asserted her own right to benefits in connection with Employee’s claim pursuant to Schoemehl. On June 12, 2017, the Commission advised the parties that it would hold any action on the amended claim until the Appellate Court came to decision with respect to the employer’s appeal. On September 8, 2017, Wife filed with the Court a motion to substitute parties pursuant to Section 287.230. During the appeal process, employer did not challenge the substitution or any of the Commission’s findings.

On June 22, 2018, Wife filed a Memo in the Circuit Court and asked that the trial court enter judgment against the employer based on the Commission’s Final Award. The Court ordered employer to pay Wife all unpaid benefits since employee’s death in April 2017 and continue to pay Wife $236.69 in weekly benefits until her death.

The employer appealed arguing that the trial court erred by entering judgment based on the Final Award of the Commission because Wife’s entitlement to benefits pursuant to the Schoemehl decision was not raised or decided by the Commission.

HOLDING: In Schoemehl, the Court concluded that Section 287.230.2 provided that when an employee is entitled to compensation and death ensues, compensation ceases when the employee dies from a cause other than his/her work injury, “unless there are surviving dependents at the time of death.” The Court noted that a dependent’s right to receive Schoemehl benefits turns on whether the workers’ compensation claim was pending when the employee died. The Court also noted the  Gervich case that found the dependent’s wife’s status as a dependent was set on the date of the husband’s injury. It also noted that Schoemehl applied to claims that were pending during the so-called Schoemehl window, which was “between January 9, 2007, the date the Supreme Court issued the Schoemehl decision, and June 6, 2008, the effective date of the 2008 amendments”.

The Court noted that in affirming the ALJ’s Award, the Commission had already decided that Wife was married to employee and was his sole dependent. In the Commission’s order of November 21, 2017, it found that “Employee died on April 13, 2017 and that Wife remained married to employee, was his sole dependent at the time of his death, and is the appropriate successor to employee’s right in this matter.” The Court noted those are all the factual findings required to support an Award of lifetime PTD benefits to Wife pursuant to Schoemehl. Accordingly, the circuit court correctly entered a judgment in Wife’s favor.