State News : Missouri

Beginning July 1, 2014, the maximum TTD/PTD rate will be $861.04 per week and the maximum PPD rate will be $451.02 per week.  The mileage allowance for travel expenses will be 53.0 cents per mile.

                                                 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

MISSOURI WORKER'S COMPENSATION

CASE LAW UDATE

JANUARY 2014 - MARCH 2014

Court Defers to Commission on Credibility and Findings of Fact

Maness v. City of De Soto and Treasurer of Missouri, Case No. ED100074 (Mo. App. 2014)

FACTS: The claimant worked as a supervisor performing maintenance for the employer’s water, street, sewer, and parks department. On June 14, 2007, the claimant gave his supervisor a report stating that he injured his neck moving decorative concrete stones three days prior on June 11, 2007. Each of the three doctors who evaluated the claimant stated that he reported to them that his injury occurred on or about June 11th. During the hearing, the claimant admitted that the employer’s time records showed he did not actually work on June 11th, but he insisted that he must have just been mistaken as to the dates, and was in fact injured on or about June 11, 2007. The ALJ awarded compensation.

On appeal, the Commission modified the ALJ’s award, but affirmed in finding for the claimant. The employer appealed arguing that the Commission erred in finding that the claimant sustained an accident on June 11, 2007 because the finding was not supported by competent and substantial evidence. Specifically, the employer alleged that the claimant’s testimony was not credible because it conflicted with statements the claimant made to doctors about the incident and because time records of the employer showed that he did not work on June 11th.

HOLDING: On appeal, the court affirmed and ruled in favor of the claimant, finding that the employer’s argument was merely a challenge to the weight of evidence and the claimant’s credibility as a witness. The court stated that because it defers to the Commission on findings of fact, credibility of witnesses, and weight to be given to conflicting evidence, it must affirm the Commission’s decision.

If Claimant is Placed at MMI and Continues to Treat the Issue of When Claimant Actually was or is at MMI can be Disputed

Hoven v. Treasurer of State of Missouri, Case No. ED98842 (Mo. App. 2014)

FACTS: In 2004, the claimant filed a claim for carpal tunnel syndrome. He had a subsequent work-related right knee injury in September 2007. With respect to the 2004 claim, the claimant was evaluated by Dr. Crandall in November 2007, at which time the doctor placed him at MMI and assessed 5% disability to the right wrist.  The claimant settled his claim with the employer and then proceeded to a hearing against the Second Injury Fund (“SIF”). After he was released by Dr. Crandall at MMI in November 2007 he underwent two additional surgeries in 2009 with Dr. Schlafly, who believed that the claimant had not yet reached MMI.  

At a hearing, the claimant argued that he was entitled to compensation from the SIF with respect to his wrists because Dr. Crandall opined that he had reached MMI, and his settlement with the employer stated he was at MMI.  The ALJ determined the claimant was at MMI, and therefore was entitled to recover from the SIF.  However, the Commission reversed and found for the SIF. The claimant appealed.

HOLDING: The court affirmed the Commission’s decision, finding that in order to receive compensation from the SIF, the claimant must first prove that he had a compensable injury that resulted in PPD.  The Commission determined that the claimant did not have PPD because he was not at MMI. The court also found that the settlement agreement between the employer and the claimant did not establish that the claimant was MMI for purposes of this case because the SIF was not a party to the settlement agreement. Finally, the Court noted that Dr. Schlafly opined that the claimant had not yet reached MMI following the surgeries in 2009.  In essence, the Court held that if a claimant is placed at MMI for a particular injury but then has subsequent medical procedures on that same body part, the issue of whether the claimant has reached MMI may again become an open question.

Claimant Not PTD Prior to Last Injury Because Could Compete in Open Labor Market Without Any Accommodation

Stewart v. Treasurer of the State of Missouri,Case No. SD32827 (Mo. App. 2014)

FACTS: The claimant sustained an injury while working for the employer in early 2009.  After a hearing, and a subsequent appeal, the Commission found that the claimant was PTD following the work injury. The SIF appealed arguing that the claimant was PTD even before the work injury and therefore, the SIF should not be liable.  The claimant’s medical history included arthritis, reflex sympathetic dystrophy, degenerative joint and bone disease, carpal tunnel syndrome, and a host of other maladies. The claimant qualified for SSD in 1997. Thereafter, the claimant worked sporadically, a total of 29 months over 11 years, at five different part-time jobs.  The claimant was able to perform all of her occupational duties without accommodation until the injury in 2009.  The Commission found that the claimant’s ability to compete on the open job market prior to her 2009 injury precluded a finding of PTD before working for the employer.

HOLDING:The Court affirmed the Commission’s finding that the claimant was not PTD prior to her work injury.  The Court was particularly persuaded by the fact that the claimant had competed for and won all of her jobs in the open labor market prior to her work injury.  Additionally, the Court noted that the claimant worked these jobs without any accommodation.  Thus, the Court found that the Commission did not err in finding the claimant was not PTD prior to her work injury because she was able to compete on the open labor market without any accommodation.

Claim Compensable When Claimant Tripped and Fell While Walking Across Street

Dorris v. Stoddard County,Case No. SD32830 (Mo. App. 2014)

FACTS: The claimant worked in the employer’s collector’s office.  While a new office building was being built, the claimant’s supervisor asked her to go over to the new building and inspect the counter tops that were being installed. As she was crossing the street to reach the new building, she tripped and fell causing a torn rotator cuff.  She was on the clock at the time of her injury. The employer denied the claim arguing that the injury did not occur in the course and scope of her employment. The ALJ found the injury compensable and the Commission affirmed the decision. The employer appealed.

HOLDING: The Court affirmed the Commission’s ruling, finding that the claimant was within the scope of her employment when she was injured.  The Court noted that in order to demonstrate the injury arose out of employment, the claimant must show a causal connection between the injury and her work activity.  In this case, the Court noted that because she was crossing the street at her supervisor’s behest and because she was on the clock when the accident occurred, she was within the scope of her employment.

Claimant PTD Because Credibly Testified That Needed to Recline Frequently Throughout Day to Relieve Pain

Ballard v. Woods Supermarkets, Inc.,Case No. SD32590 (Mo. App. 2014)

FACTS: While working for her employer, the claimant slipped and fell on grease causing her to land on her back and left arm.  As a result of the accident, the claimant was diagnosed with a comminuted distal left radius fracture, disc herniations at L4-5 and L5-S1, and strain/sprain of her cervical and thoracic spine.  The employer sent the claimant to Dr. Woodward for an IME. The claimant’s attorney obtained a report from Dr. Koprivica.  Dr. Koprivica diagnosed failed laminectomy syndrome and stated that the claimant needed to recline frequently in order to reduce and cope with the pain.  

At a hearing, the ALJ found the testimony of Dr. Koprivica and the claimant credible. Consequently, the ALJ found that the claimant needed to recline for at least 30 minutes several times a day to cope with the pain.  Based on this restriction, the ALJ determined that the claimant was unable to compete in the open labor market and found her PTD. The employer appealed to the Commission, which affirmed.  The employer again appealed, arguing that the ALJ erroneously concluded that the claimant needed to recline throughout the day because that conclusion was based on Dr. Koprivica’s subjective medical findings and not based on objective medical findings.

HOLDING: The court noted that there is no objective test for pain and that the extent to which a claimant experiences pain is a credibility determination for the Commission to decide. Thus, the Court found that assessing pain is inherently subjective, and therefore, Dr. Koprivica’s opinion qualified as competent and substantial evidence that the Commission may justifiably base their decision on.

Employer Responsible for All Past Medical Expenses Reasonably Required to Cure and Relieve Effects of Work Injury

Downing v. McDonald’s Sirloin Stockade,Case No. SD32683 (Mo. App. 2014)

FACTS: The claimant worked as a waitress for the employer from 1985 until 2007.  She first began to experience back pain in 2005 and sought treatment from her own chiropractor.  The claimant’s chiropractor eventually determined that an MRI was needed.  The claimant then spoke with the employer, at which time the employer suggested that she seek treatment through workers’ compensation. However, a claims representative at the insurer spoke with the employer and advised that they would be denying the claim because they did not feel that the claimant suffered a compensable injury.  Nonetheless, the employer referred the claimant to Dr. Ipsen, who ordered an MRI to determine if surgery was necessary. The claims representative authorized the MRI, which revealed disc degeneration at L5-S1, as well as a large extrusion causing impingement on the right S1 nerve root.  Dr. Ipsen subsequently scheduled surgery. However, the claims representative told the claimant that the surgery was not authorized because more information was needed. Nevertheless, the claimant took out a loan and underwent surgery as scheduled.  

Following surgery, the claimant filed a Claim and at a hearing the ALJ found in favor of claimant and awarded her unpaid medical expenses, TTD, and PPD. However, the ALJ did not award the claimant the cost of the two surgeries she had paid for with the loan.  The claimant appealed and the Commission modified the Award to include past medical benefits for the two surgeries.  The employer then appealed arguing that the Commission should not have awarded past medical benefits for the surgeries because the medical expenses were not authorized and the treatment was not needed on an emergency basis.

HOLDING: The Court first noted that the statute requires an employer to provide medical treatment that may be reasonably required to “cure and relieve” the effects of the injury.  The Court went on to say that the statute has been interpreted to mean that if an employer wrongly refuses requested treatment, the employer will be liable for medical treatment obtained at the claimant’s own expense. Therefore, the Court affirmed the Commission’s ruling, holding that the employer was responsible for reasonable and necessary medical expenses regardless of whether or not they were authorized by the insurer.

Claimant Not PTD Prior to Work Injury

Scott v. Treasurer of the State of Missouri,Case No. WD76602 (Mo. App. 2014)

FACTS: The claimant worked operating heavy equipment and doing excavation work on a contract basis.  Eventually, the claimant incorporated his business under the name Gary Scott Excavating, and was an employee of this business. Due to the claimant’s troubles with reading, a hearing problem, and a ninth grade education, most of the administrative bookkeeping and paperwork of the company was handled by his brother, wife, or other employees.  
The claimant had numerous injuries throughout his career.  In 1998, he had right rotator cuff repair.  In 2001, he fell from a grain bin fracturing his right leg, right foot, and left foot.  In 2004, he had bilateral carpal tunnel releases.  In 2006, he had colon surgery, and in 2007, he was diagnosed with arthritis. On January 11, 2008, the claimant had this work related injury, at which time he injured his back while operating a bulldozer.  Due to the back injury, the claimant saw Dr. Reintjes who performed back surgery.  On October 29, 2008, Dr. Reintjes found that the claimant had reached MMI and gave him a 50 pound lifting restriction. The claimant also received treatment for his back from Dr. Scott.  While treating for his back condition, Dr. Scott diagnosed two hernias, which were surgically repaired.  

The claimant returned to work operating machinery and supervising his employees, but limited how much lifting and vehicle maintenance work he did. On December 3, 2009, he was attempting to install a battery in a piece of equipment when he injured his chest and right shoulder.  He was eventually released to return to work with restrictions of no lifting over 50 pounds and no repetitive lifting or reaching above the shoulder.  Fearful of re-injuring his shoulder, he stopped working after the 2009 injury.  

He filed claims against his employer and the SIF for the hernias, the back injury, and the chest and shoulder injuries.  He settled all claims with the employer. He went to a hearing against the SIF for the 2008 back injury and the 2009 shoulder injury.  At the hearing, the ALJ found that the claimant was PTD prior to both injuries, and therefore, the SIF was not liable for any benefits. The ALJ was persuaded by claimant’s testimony that Dr. Scott had told him to stop working in 2007.  The ALJ also cited vocational expert, Mr. Dreiling’s testimony, that although the claimant was able to return to work after his 2008 and 2009 injuries, he was only able to do so because he self-accommodated by only supervising employees and such accommodation would not be made elsewhere. Therefore, the claimant was unable to compete on the open labor market. The claimant appealed to the Commission who adopted and affirmed the decision of the ALJ. The claimant appealed.

HOLDING: The Court reversed the Commission’s decision and remanded for further findings. The Court held that the Commission’s decision was not supported by substantial and competent evidence and was against the overwhelming weight of the evidence.  The Court noted that after his injuries, the claimant resumed lifting, loading, and vehicle maintenance duties, and would operate pieces of heavy equipment for as much as 8 to 12 hours a day.  Thus, the Commission erred in determining that the claimant’s sole function was overseeing the work of other employees. Additionally, the Court noted that there were no doctors’ opinions stating that the claimant needed to stop working prior to the 2008 and 2009 injuries. More specifically, the Court noted that the Commission erred in determining that Dr. Scott advised the claimant to stop his workload in 2007 because he did not see Dr. Scott until after his 2008 back injury.  Finally, the Court noted that the vocational expert, Mr. Dreiling, testified that it was only after the claimant’s back surgery in 2008 that he stopped performing the heavier physical lifting activities at work and needed to be accommodated.

Claimants are Not Entitled to Pre-Judgment Interest

Harrah v. Tour St. Louis,Case No. ED100185 (Mo. App. 2014)

FACTS: The claimant was injured in a motor vehicle accident while working as a bus driver.  At the time of the injury, the employer did not carry workers’ compensation liability insurance.  Consequently, the claimant sought medical treatment on her own, and as a result of that treatment, incurred over $150,000.00 in past medical expenses.  Following a hearing, the ALJ found the employer and the SIF liable for the claimant’s past medical expenses. Additionally, the ALJ declined to award prejudgment interest on medical expenses to the claimant.  The Commission affirmed the ALJ’s decision.  The claimant appealed from the Commission, arguing that she was entitled to prejudgment interest on her medical expenses.

HOLDING: The court upheld the decision of the Commission and found that prejudgment interest on medical expenses is not recoverable based on the new strict construction standard.

Must First Look to Last Injury Alone to Determine Whether SIF or Employer is Responsible for PTD Benefits

Blackshear v. Adecco,Case No. ED100251 (Mo. App. 2014)

FACTS: The claimant sustained injuries to her back and legs and brought a claim against the employer and the SIF.  Both the employer and the SIF agreed that the claimant was PTD, but they disagreed about who was responsible for the PTD benefits. The ALJ concluded that the claimant’s last injury alone rendered him PTD. Therefore, the employer was responsible for benefits, not the SIF. The employer appealed. The Commission modified the ALJ’s Award finding that the claimant’s disability was a combination of a pre-existing psychiatric condition and the primary injury. Specifically, the Commission found that the primary injury caused 85% of the claimant’s PPD, and that the claimant also had a pre-existing disability resulting from her psychiatric conditions. The Commission determined that the claimant was entitled to recover PTD benefits from the SIF because her disability resulted from a combination of her pre-existing conditions and the primary injury.  The SIF appealed, arguing that the Commission erred in allocating PTD liability to the SIF because the Commission  did not first determine whether the primary injury alone resulted in PTD.

HOLDING: The Court agreed with the SIF’s assertion that the first inquiry is the degree of disability incurred from the last injury. Additionally, the Court agreed that if the claimant’s last injury in and of itself rendered the claimant PTD, then the SIF has no liability and the employer is responsible for the entire amount.  However, the Court noted that the Commission found that the last injury had caused 85% PPD and that the claimant was not PTD as a result of the primary injury alone. Thus, the Commission correctly followed procedure by first evaluating the amount of disability resulting from the last injury alone and therefore, the SIF’s liability for PTD benefits is affirmed.

Credibility is Determination of Commission

Payne v. Treasurer of the State of Missouri,Case No. SD3254174 (Mo. App. 2014)

FACTS: The claimant worked as a truck driver for employer.  On December 24, 2004, the claimant tripped and fell on ice while at a truck stop, injuring his back and both of his shoulders. He was diagnosed with bilateral rotator cuff injuries. The claimant also had several pre-existing conditions including heart problems, diabetes, and sleep apnea.  Following the 2004 work injury, the claimant saw Dr. Bennoch who issued a report in May 2010 finding him PTD due to the effects of the 2004 work injury alone.  At Dr. Bennoch’s deposition, he opined that the claimant was PTD as a result of both his work related injury and his pre-existing medical issues. The claimant was also evaluated by a vocational rehabilitation counselor, Ms. Titterington, who opined that the claimant had transferrable job skills and therefore, was not PTD.  

A hearing was held, at which time both Dr. Bennoch and Ms. Titterington testified live. During the hearing, Dr. Bennoch testified that the claimant’s work injury alone was enough to make him PTD.  Ms. Titterington’s testimony was consistent with her prior statements, asserting that the claimant was not PTD. The ALJ ruled in favor of claimant finding that he was PTD as result of the 2004 work injury and his pre-existing conditions.  The SIF appealed arguing that the ALJ’s finding that the claimant was PTD did not comport with his pursuit of full time, regular employment.  The Commission amended the ALJ’s ruling, finding that although the claimant did have pre-existing disabilities, he was PTD as a result of the work injury alone.  The claimant appealed arguing that the SIF was prevented from arguing that the claimant was PTD as a result of the last injury alone because the SIF had previously argued at the hearing and in its Application for Review that the claimant was not PTD.  The claimant also argued that the Commission’s finding was against the weight of the evidence because it found Dr. Bennoch’s testimony to be most credible.

HOLDING: The Court began by noting that when the SIF appealed the ALJ’s finding that it was liable for PTD benefits, it triggered the Commission’s duty to first determine the degree of disability resulting from the last injury alone. Thus, the Commission was allowed to find that the claimant was PTD as a result of the work injury alone, regardless of whether the SIF requested or argued for such a finding.  The Court then focused on the claimant’s next argument – that the Commission’s finding was not supported by substantial and competent evidence. The Court stated that when the evidence before the Commission would warrant either of two findings, the Court is bound by the Commission’s determination. Thus, the Court affirmed the Commission’s decision, noting that the credibility of experts is to be determined by the Commission.

Claim Compensable When Claimant Walking Across Parking Lot to Take Trash Out and Smoke Cigarette

In Glenda Hunter v. Benchmark Healthcare of Harrisonville, Injury No. 13-021747, the claimant, a housekeeper, was walking across the employer’s parking lot when she slipped and fell, sustaining an injury on February 28, 2013. The claimant testified that she fell when she walked out the door of the facility while carrying trash. She was walking with another co-employee and they were planning on taking a smoke break. The dumpster was located in close proximity to the shed, which was built for employees to smoke cigarettes. Employees were allowed to smoke in the shed without clocking out and on a scheduled break. The claimant planned to clock out for her lunch break shortly after returning from the smoking shed. There were some inconsistencies with respect to the claimant’s testimony and the other employee’s testimony as the co-employee was not sure when the claimant fell and whether he was carrying the trash or the claimant actually had the trash in her hand.

In any event, the ALJ found the claimant credible and the claim compensable. He noted that the employer required employees to smoke in a designated shed and did not require the employees to clock out. Also, the employer had ownership and control of the parking lot. Furthermore, the claimant was exposed to the risk due to the placement of the dumpster and the instructions of her employer to smoke in a designated area, which required her to cross an icy lot. The ALJ further noted that whether or not the claimant was injured going to the dumpster or coming back from a smoke break is not material. The fact that she smoked a cigarette in the shed by the dumpster does not impact the analysis as she would be required to cross the same parking lot to return to work. The Commission affirmed the Award of the ALJ.

Claimant Gave Proper Notice When Filed Claim Prior to Diagnostician Connecting Condition to Job Duties

In Tamara Lynn v. McClelland Marketing, Inc., Injury No. 10-111727, the claimant worked for the employer as an office assistant and her job duties included data entry, filing and customer service. She estimated that she typed on the computer for about 5 - 6 hours per day, but acknowledged that this task was interrupted by other duties such as answering phones and handling boxes of files. In 2008 or 2009 she began developing symptoms of carpal tunnel syndrome and in December 2010 she sought treatment on her own. She underwent carpal tunnel releases with Dr. Schlafly in April and May 2011. She filed a Claim for Compensation on May 31, 2011. Thereafter she saw Dr. Berkin, who connected her symptoms to her job duties. The employer sent the claimant to Dr. Rende, who also connected the claimant’s symptoms to her job duties. The ALJ, of course, found that the claimant’s condition was work-related. However, he found that the claim was barred as the claimant did not provide the employer with proper notice.

The Commission reversed the decision of the ALJ finding that the employer was given proper notice. The Commission noted that a person cannot be diagnosed with an occupational disease or repetitive trauma until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. The Commission noted that in this case, the claimant’s condition was not connected to her job duties until she saw Dr. Berkin on August 31, 2011. In light of the fact that she filed her Claim on May 31, 2011, prior to a diagnostician connecting her condition to work, the claimant gave timely notice and her claim was not barred.

Claim Denied Because Claimant’s Testimony Was Inconsistent With Medical Records and Claimant Had History of Prior and Subsequent Injuries

In David Luka v. FedEx Ground, Injury No. 10-101154, the claimant worked for the employer as a tech specialist. On July 14, 2010 he was working with a co-worker repairing a conveyor belt, at which time he heard a snap and felt a sharp pain in his lower back. He did not report his accident to the employer because he was concerned about his job. He testified that the next day he went to his family physician and advised that he possibly hurt his back at work but asked the doctor not to mention his low back pain in his chart, as he was not sure whether he wanted to pursue workers’ compensation benefits. He continued to undergo conservative treatment. He was off work and received short-term disability benefits. When he returned to work on December 3, 2010, he sustained another injury and he testified that his low back condition permanently worsened. The first mention of the July 14, 2010 work injury was in the medical records of Dr. O’Boynick, dated December 6, 2010, five months after the date of injury. Dr. Hopkins, the claimant’s expert, testified that the work injury on July 14, 2010 was the prevailing factor in causing his condition. Dr. Bailey, the employer’s expert, diagnosed degenerative disc disease and opined that the accident of July 14, 2010 was not the prevailing factor in causing the claimant’s diagnosis. The claimant did have a prior history of back injuries, the first being in 1986 for which he underwent a lumbar discectomy. A few years later he suffered from an acute episode of low back pain for which he underwent injections. The ALJ found the claimant sustained an accident on July 14, 2010, which was the prevailing factor in causing his back condition and need for treatment.

The Commission disagreed, noting that they were not persuaded by the claimant’s evidence on the issue of medical causation. The Commission noted that there were multiple potential causes for the claimant’s current low back and lower extremity problems, including the 1986 surgery, the work accident on July 14, 2010, a subsequent incident which lead the claimant to the emergency room on September 2, 2010, and another incident at work on December 3, 2010. The Commission also noted they were not convinced that they could reasonably rely on the claimant’s history of events since it conflicted with the medical  records. Therefore, the Commission found that the accident of July 14, 2010 was not the prevailing factor in causing any medical condition in the claimant’s lumbar spine, or any disability. Therefore, the claim was denied.

Claimant PTD Because Vocational Expert Not Credible Because Did Not Use Correct Standard

In Grace Ketchum v. Missouri Department of Corrections, Injury No. 07-109955, the claimant was working for the employer and her job duties included supervising inmates, providing food and maintaining supplies. The claimant was a passenger in a food supply truck and the driver backed into a loading dock, at which time she sustained whiplash. Dr. Coyle performed an arthrodesis and the claimant was placed at MMI. The claimant then worked for a month and applied for extended medical leave and long term disability. After the claimant was released from Dr. Coyle, she treated with Dr. Guarino for pain management. Dr. Volarich assessed 65% disability and opined the claimant would need additional treatment as a result of her work injury. Mr. Eldred, the claimant’s expert, opined that she was permanently and totally disabled as a result of her injury. Mr. England testified on behalf of the employer, and opined that the claimant “would still be physically able to perform some types of entry level service employment such as some cashiering positions, security positions such as working in an office building or as an alarm monitor for a security company. She would be a logical person for some home health positions with ambulatory patients or working as a companion.” The ALJ found that the employer would be responsible for additional medical treatment to cure and relieve her from the effects of the work injury, as the ALJ found Dr. Volarich’s opinion credible. The ALJ also found that the claimant was not permanently and totally disabled as he believed that Mr. England’s opinions were more credible. The ALJ did assess 50% disability to the body.

The Commission modified the Award opining that the claimant was permanently and totally disabled as a result of the work injury. The Commission noted that Mr. England stated that the claimant would be “physically able” to perform some limited jobs, and that the claimant could perform “some” positions. The Commission noted that “the test for permanent total disability is whether the worker is able to compete in the open labor market, and the critical question is whether in the ordinary course of the business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.” The Commission noted that they were left to speculate as to whether such positions actually exist in significant numbers in the open labor market and whether the claimant could reasonably compete for such positions. Therefore, they found the opinion of Mr. Eldred credible, and that the claimant was permanently totally disabled.

Claimant Found PTD Despite the Fact That He Worked For Employer For Over Two Years after Injury

In Rusty Archer v. City of Cameron, Injury Nos. 08-011470 and 10-075527, the claimant, a concrete layer, sustained an injury on January 16, 2008, when he struck a manhole while driving a skid loader. He underwent conservative care for cervical and thoracic strains, including physical therapy and epidural injections. The claimant was given permanent restrictions by two treating physicians, Dr. Zarr and Dr. Wheeler. Dr. Zarr provided a rating of 3% and Dr. Wheeler assessed 8%. Dr. Wheeler, the claimant’s last treating physician, advised that he would need ongoing medication to cure and relieve him from the effects of the January 2008 accident. The claimant continued to receive conservative care and continued to work from the fall of 2008 until September 16, 2010, when he sustained another work-related injury.

While the claimant was working up until his second injury, he received assistance from co-workers if he was unable to perform certain activities, and was accommodated by his employer due to his work restrictions. The claimant was permitted to take frequent breaks throughout the day.

On September 16, 2010 the claimant sustained another injury while bending over to shape a newly formed curb of concrete. He was diagnosed with a chronic and acute thoracic strain, myofascial syndrome, chronic lumbar strain and muscle spasms. He was released from care three weeks later, at which time the doctors indicated that his pain had returned to baseline. He was given the same restrictions.

The claimant actually alleged that he was permanently and totally disabled as a result of the January 16, 2008 accident, and had expert testimony supporting that allegation. However, the ALJ found that the claimant was not permanently and totally disabled as a result of the 2008 injury because he worked in the open labor market laying concrete from 2008 up through his September 16, 2010 injury. The ALJ did not find that the claimant’s work with the employer between that time period so accommodating to render him unemployable, especially when he received a raise and medical records reveal he was laying concrete every day in June 2010. The ALJ did assess 35% disability referable to the January 2008 accident. The ALJ also assessed 7.5% disability to his body as a whole due to the September 16, 2010 accident.

With respect to the January 16, 2008 injury, the Commission modified the decision of the ALJ, and found that the claimant was in fact permanently and totally disabled as a result of this injury. The Commission found that two experts opined that the claimant was PTD as a result of the 2008 injury. The Commission noted that the ALJ disregarded both opinions because the claimant worked in the open labor market laying concrete from 2008 up until September 16, 2010. The Commission disagreed noting the position was not in the open labor market, and the claimant simply went back to the job he already had. The Commission found that the claimant’s return to his job after his injury is not proof that he could compete in the open labor market. The Commission noted that since the claimant was not performing the usual duties of his employment in the manner that such duties were customarily performed by the average person engaged in his line of work, concrete laying, the claimant’s return to work did not constitute proof that he could compete in the open labor market.

With respect to the September 16, 2010 injury, the Commission noted that the Judge assessed 7.5% of the body. The Court reversed this decision opining that the claimant did not sustain any disability as a result of this injury. The Commission noted that none of the medical experts believed the claimant sustained any permanent disability and noted that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Since the accident did not cause any disability the claim was not compensable.

Motor Vehicle Accident Found to be In Course and Scope of Employment

In Anne Poole v. Preferred Hospice of Missouri, S.W., LLC, Injury No. 10-049134, the claimant was employed as an admissions coordinator and 80% of her job duties required travel away from the principal office to off site locations to perform in-person interviews with patients who are being admitted to hospice care. The claimant was required to maintain reliable transportation and was reimbursed for her mileage. She was provided a stipend for a cell phone, and she carried medical equipment with her at all times. On the day of her injury she had traveled to various patients’ houses, and her last appointment was in Seymour, Missouri. There was information that she needed to fax to a physician, and therefore she went back to the employer’s place of business. On the way there she was in a motor vehicle accident. The employer’s witness did indicate that the claimant’s decision to return to the office would have been highly unusual, particularly since the doctor’s office would have been closed. It was noted that the accident occurred at a location where the claimant reasonably would have been irrespective of whether she was traveling directly home or back to the office.
The main issue in this case is whether the claimant’s injuries were caused by an accident arising out of and in the course of her employment. The ALJ found that the claimant was credible and that her testimony showed that she was on the way back to the employer’s office to fax something to a physician’s office, which was benefitting the employer. The ALJ further noted that whether the claimant intended to return to the office or was going home, was not relevant since the accident occurred in close geographic proximity and time to the last appointment on the exact same route the claimant would have taken for either destination. The Judge did note that an accident occurring while an employee is going to and from work generally is not compensable. However, there is an exception for employees whose job duties entail travel. The ALJ did note that the legislature eliminated benefits for injuries sustained while traveling between home and an employer’s principal place of business. However, the claimant was not doing so in this case. The ALJ noted that the claimant was traveling from a facility in Seymour, Missouri, and therefore her claim was compensable.

The Commission affirmed the decision of the ALJ, however, came to the conclusion using a different analysis. The Commission did point out that the ALJ concluded that it did not matter whether the claimant had intended to return to the office or was going home. The Commission noted that the claimant’s actual destination at the time of the motor vehicle accident was dispositive of the issue in favor of the claimant. The Commission concluded that the claimant’s injuries arose out of and in the course and scope of employment because her injuries did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employer in normal unemployment life. Basically, the Commission is saying that the claimant testified that she was going back to the employer’s office, and since the ALJ found the claimant credible, it was presumed the claimant was returning to work and not to her home. Therefore, this is the only fact scenario the Commission found relevant.

Editor’s Note: It appears as if the Commission is saying that it is possible that if the claimant was going home, the claim may not be compensable. However, they do not go into any discussion regarding this issue.

Claimant’s Fusion Related to Work Injury Despite Prior Herniations and Symptoms On and Off For Two Years Prior to Injury

In Elizabeth Lake v. Best Buy, Injury No.: 08-123984, the claimant was moving microwave ovens from department overhead storage to floor level on September 5, 2008, when she developed pain at the base of her neck. She did not report her injury to the employer until 2 weeks later. She continued to experience neck pain and went to her primary physician and treated conservatively. She was taken off work by her primary care physician and underwent MRIs. The claimant was then seen by Dr. Doll, the claimant’s cousin (this was not authorized care), who recommended that she see Dr. Raskas, a spinal surgeon. Dr. Raskas performed a two level fusion. Both Dr. Doll and Dr. Raskas believed that the claimant’s work activities in September 2008 were the prevailing factor in causing her medical condition and symptoms. This is significant in that the claimant did have a prior injury in 2006 for which she underwent physical therapy, chiropractic care and acupuncture for a disc herniation to the left at C4-5, the same level the claimant underwent the fusion after the work injury.

Dr. Volarich testified on behalf of the claimant, noting that although the C4-5 disc herniation was present in 2006, it was essentially asymptomatic prior to the 2008 injury, and the right disc bulge at C5-6, which was also present in 2006, had caused no radicular symptoms other than occasional finger tip tingling, prior to the 2008 injury. On cross examination, Dr. Volarich acknowledged that the claimant’s 2009 MRI and 2006 MRI were essentially the same. He also acknowledged that the claimant’s medical records demonstrated that the claimant had some cervical spine symptoms on and off between 2006 and 2008.

Dr. Kitchens testified on behalf of the employer and believed that the claimant had cervical degenerative disc disease which was not related to the work injury. The ALJ concluded that Dr. Kitchens’ opinion was credible and that the claimant’s work was not the prevailing factor in causing her medical condition and disability.

The Commission reversed the decision of the ALJ, noting that Dr. Kitchens based his premise on the fact that a specific incident or injury did not occur at work and he opined that overhead lifting activities cannot cause neck pain. Basically, the Commission did not find Dr. Kitchens’ opinions credible, and found the opinion of Dr. Volarich and the claimant’s testimony credible. Therefore, the employer was responsible for PPD, TTD, past medical expenses and future medical treatment.

 

MISSOURI WORKER'S COMPENSATION

CASE LAW UDATE

OCTOBER 2013 - DECEMBER 2013

  

Court Will Not Substitute Its Judgment on the Issue of Expert Credibility, Even if It Would Have Reached a Different Conclusion than Commission

Watson-Spargo v. Treasurer of the State of Missouri, Custodian of the Second Injury Fund (Mo. App. 2013).

FACTS: The claimant sustained a work injury in 2009 and settled with the employer. Prior to that injury she held various jobs, suffered several injuries and maladies, and experienced family tragedies. It was noted the claimant had some college education and was 38 years old at the time of the hearing. The claimant's experts opined that she was totally disabled. The ALJ found that the Fund's expert, Mr. Swearingin was more credible and accurate, and thus found that the claimant was only partially disabled. The Commission affirmed the decision of the ALJ. The claimant appealed.

HOLDING: The Court noted that there was ample evidence to support a finding that the claimant was capable of working in the open labor market. The Court noted that the ALJ found that Mr. Swearingin's opinion was more credible and accurate than that of the claimant's expert, and the Commission affirmed that opinion. The Court further held that given the"Alexander Rule", the Court was not free to disregard this credibility determination. The Court noted that according to Alexander, the Commission, not the Court, determines credibility of expert testimony. The Court further noted that it would not substitute its judgment on the issue of what expert is more credible, even if it would have reached a different conclusion.

Commission Cannot Commute Weekly Benefits to Lump Sum Unless It's in the Best Interests of Claimant or Claimant's Dependents

Keaney, as personal representative of the estate of Robert Keaney, Jr. v. Treasurer of the State of Missouri (Mo. App. 2013).

FACTS: In 1995 the claimant was awarded PTD benefits from the Fund. The Commission awarded an attorney fee of 25% and awarded Robert Keaney, (Editor assumes this is the claimant's prior attorney who withdrew and filed a lien) 33.75% of the attorney fees. The Fund paid the PTD benefits from 1995 - 2012. Attorney Keaney passed away on October 26, 2012. The attorney's estate filed a Motion to Commute Periodic Payments to Present Day Value Lump Sum Payment with the Commission. The Commission ordered the Fund to pay a lump sum of $17,251.42 to the estate for the remainder of the attorney's fees due to the attorney pursuant to the 1995 Award. The Commission noted that pursuant to Statute the Commission can order that attorney fees be paid to an attorney in a lump sum or in installments. The Fund appealed.

HOLDING: The Fund argued that the Commission erred in ordering attorney fees to be paid in a lump sum because it lacked the statutory authority to amend the Award of attorney fees, and that the underlying Award became final in July 1995 and cannot be revised. The Court agreed.

Under the Statute, the Commission may allow reasonable attorney fees as a lien on compensation and order the amount thereof paid to the attorney in a lump sum or installments. The Court noted that in this case the attorney was awarded fees in installments. Since the attorney did not appeal the Award in 30 days, the Award was final. Therefore, the Court found that the Commission did not have the authority to order the Fund to commute the fees to a lump sum payment to the attorney's estate. The Court noted that in some circumstances the Commission does have the authority to commute an Award, such as when it is in the best interests of the claimant or the claimant's dependents. However, that part of the Statute does not apply to this case because there is no benefit to the claimant or his dependents. Therefore, the Commission did not have the authority to commute benefits paid in installments to the attorney to a lump sum payment.

Workers' Compensation is Exclusive Remedy For Claimant Against Statutory Employer

Shaw v. Mega Industries Corp (Mo. App. 2013).

FACTS: At the time of his injuries, the claimant was the owner of RLS which was in the business of excavating and hauling materials. RLS was retained by Mega Industries as a subcontractor. The claimant was injured when a telephone booth that was being moved by a Mega Industries employee fell onto him. He filed a workers' compensation claim against RLS and Mega Industries. The Division approved a settlement between RLS and the claimant. The parties stipulated to a full and final settlement closing out all claims for the claimant's injuries which happened on the date of injury. Neither Mega Industries nor its insurer paid any compensation on the claim.

After settlement of his workers' compensation claim, the claimant filed a suit against Mega Industries and one of its employees alleging their negligence caused his injuries. The case was dismissed based on summary judgment, due to the fact that Mega Industries was the claimant's statutory employer and that his common law claims against Mega Industries were therefore barred by the exclusive remedy provisions of workers' compensation law. The claimant appealed.

HOLDING: The Court found that the issue in the case was whether the claimant's sole remedy against Mega Industries was through workers' compensation, even though Mega Industries paid no portion of the workers' compensation benefits the claimant received. The Court noted that Mega Industries was subject to liability to furnish compensation under workers compensation as a statutory employer. The Statute merely provides Mega Industries with a defense to liability in the specific circumstances of this case because the claimant's immediate employer, RLS, was insured. The immunity provided has never been interpreted to require that the injured worker actually receives workers' compensation benefits from the employer. If the injury comes within the definition of the term "accident" then it is included within the exclusivity provisions of the Statute. Mega Industries does qualify as an employer under the Act, even though it paid the claimant no workers' compensation benefits. Therefore, Mega Industries is immune from common law actions and the summary judgment was upheld.

At least One Disability has to Meet the Threshold for Fund Liability, however, Once Threshold is Met All Pre-existing Conditions are Considered when Determining the Amount of the Fund's Liability

Treasurer of the State of Missouri, Custodian of the Second Injury Fund v. Witte, Salviccio, Dyson and Buhlinger (Mo. S.Ct. 2013).

FACTS: These cases were all heard at the Court of Appeals level. The Court concluded that the Workers' Compensation Statute makes no allowance for combining body as a whole injuries together or combing a body as a whole injury with a major extremity injury. In essence, the Court of Appeals found that in order for the Fund to be responsible for pre-existing disabilities, a prior disability has to meet the threshold of 12.5% of the body, or 15% of a major extremity.

HOLDING: The Supreme Court upheld the opinions of the Appeals Courts. The Court noted that the Statute has to be applied using strict construction. Therefore, considering the clear and ambiguous language of the Statute, the Court found that the Statute does not permit the combining of multiple permanent partial disabilities to meet the threshold for the Fund's liability. Therefore, the Statute requires each disability to be measured against the thresholds individually. However, once the threshold is met for Fund liability, all pre-existing disabilities are considered when determining the amount of the Fund's liability.

Therefore, in Salviccio v. Treasurer, the claimant had pre-existing permanent partial disabilities of 12.5% of the body referable to diabetes, 4% of the body referable to a 1999 hernia, 3.5% of the body referable to a 2005 hernia and 50% of the little finger. It was noted that the claimant's disability due to his diabetes meets the 50 week threshold to trigger the Fund's liability. Since that threshold was met, all of the claimant's disabilities should be considered in calculating the extent of the Fund's liability. 

Pro Se Claimant Must Follow Evidentiary Rules of Evidence At Hearing

Burchfield v. Renard Paper Company (Mo. App. 2013).

FACTS: On September 7, 2007 the claimant was driving backwards on a pallet jack when he backed into a stack of empty pallets, one of which struck him on the back of the head. He had no immediate pain, went home and fell asleep. The next morning he had swelling on the side of his head and could not hear. He reported the injury to the employer, but was not treated by a company doctor. He filed a Claim pro se and went to a hearing before an ALJ. He requested admission of medical records, and the employer objected on the grounds that the records contained hearsay and lacked foundation. The ALJ sustained the employer's objection and denied admission of the records. The ALJ held that the claimant failed to present clear and convincing evidence of medical causation and denied the claim. The Commission affirmed the decision of the ALJ. The claimant appealed arguing that the ALJ erred in declining to admit medical records because the Statute states that all proceedings before the ALJ should be simple, informal in summary and without regard to the typical rules of evidence.

HOLDING: The Court noted that pursuant to Statute medical records in workers' compensation hearings are admissible without the strict rules of evidence regarding foundation if the proponent of the evidence, here the claimant, provides 60 days notice to the employer that he intends to admit records into evidence. Since the claimant did not provide the employer with such notice, the ALJ was correct in not admitting the medical records presented by the claimant. Therefore, the ALJ did not err in denying admission of the records.  

Employee Found Not to Be Aggressor and Claim Compensable

In Reis v. Shade Tree Service Company, Injury No. 11-062983, the claimant was a foreman and his job duties included tree trimming and some paperwork. He was working with another employee in a park. The claimant's supervisor, Ethan Taylor, had come to the site on numerous occasions to check on the progress. He returned to the site and the claimant and the other employee had finished their work for the day and were sitting in the work truck finishing paperwork.

There were three different versions of what then took place between the claimant and Mr. Taylor. In all three versions, it was noted there was a verbal altercation about the claimant sitting in the truck outside of a customer's house, which eventually lead to a physical altercation, which ended with both the claimant and his supervisor on the ground. There were inconsistencies as to how the claimant exited the truck. The claimant testified that he was getting out of the truck when Mr. Taylor grabbed him and slammed him on the ground. The witness testified that the claimant climbed over him and went quickly head first out of the truck. Mr. Taylor testified that the claimant lunged over the other employee's seat and Mr. Taylor stepped back and stumbled and the claimant was suddenly in his face. There was evidence that Mr. Taylor had a history of instigating verbal and physical altercations with subordinates. The ALJ found that the claimant was the aggressor in the altercation and pursuant to the Statute regarding assaults in the work place, the ALJ denied compensation.

The Commission reversed noting that although there was considerable conflicting testimony regarding the circumstances resulting in the claimant's injury, and although the claimant certainly could have conducted himself in a more appropriate manner, considering all of the testimony, the Commission concluded that there was no real evidence that either the claimant or his supervisor demonstrated any intent to harm each other. Therefore, the injuries to the claimant and his supervisor were the unintended consequence of a dispute that grew out of tension inherent in the nature of the performance of their work duties. The Commission found that the neutral witness's testimony was relevant in that he testified that no punches were thrown. Also both parties apparently disengaged when it became apparent that someone was injured.

The Commission further noted that because neither the claimant nor the claimant's supervisor intended any violence in the course of their physical altercation, the claimant's injuries were not caused by an assault against an employee. Therefore, the Commission found no need to apply the assault doctrine. The Commission reversed the ALJ's decision, and the claim was deemed compensable.

Claimant's Repetitive Motion Claim Denied Because Long History of Back Pain and Claimant Only had Back Intensive Job Duties for One Month Before Seeing Doctor

In Reno v. DaimlerChrysler, Injury No. 05-144364, the claimant alleged an occupational disease to her back. She began working at the employer in 1983. She worked in Alabama, which manufactured electrical panels for vehicles. There was no evidence that she did any work which involved heavy lifting or excessive use of her back. In 2005 the claimant moved to St. Louis and worked in the assembly plant, where she worked until October 19, 2006. The claimant's job title was a floater. Her first job involved putting rear quarter panels on a rack. There were 19 panels weighing 23 pounds, and she had to step up on a rack that was one foot off the ground and pick up a panel, back out of the rack and then set it down. She had to load 25 - 50 panels per hour. She worked 8 - 9 hours a day, with 12 minute breaks in the morning and afternoon, and 30 minutes for lunch. After just one month as an assembler she alleged that her job duties caused the condition in her back.

There was evidence that the claimant had a long history of back problems prior to moving to St. Louis. She was first seen by physicians in 2006 and reported a history of low back pain on and off for 14 years. She was diagnosed with a herniated disc in 2006, and eventually underwent surgery which was unsuccessful. The ALJ concluded that the claimant failed to meet her burden of proving that her back conditions were causally related to her work for the employer. The ALJ found that Dr. Irvine, the employer's expert, was persuasive in that the conditions to the claimant's lumbar and cervical spine were a result of degenerative changes and the aging process. The ALJ further noted that the claimant had a long standing history of back problems that went back to the early 1990s, which was prior to when she began working in St. Louis in 2005. Furthermore, the claimant first reported her back complaints to Dr. Allen on April 28, 2005, slightly one month after she started working in St. Louis for the employer. The Commission affirmed the decision of the ALJ.

Despite Claimant's Pre-existing Conditions, Fusion Found to be Necessary to Cure and Relieve Claimant From Effects of Work Injury

In Holeman v. Hussman Corporation, Injury No. 09-074541, the claimant worked for the employer for over 30 years. In 1996 he sustained a work injury to his cervical spine and received authorized treatment from Dr. Kennedy, who performed a fusion at C4-5. He was given permanent restrictions and settled his claim for 20% PPD. He did have some ongoing pain. However, from 1997 until August 2009 he never missed work due to any neck or radicular pain, he passed medical evaluations in connection with his duties for the U.S. National Guard, and was able to engage in hobbies. The claimant continued to work for the employer and on August 24, 2009, he was moved to a different position, which was repetitive in nature and violated Dr. Kennedy's restrictions from the 1996 work injury. The claimant advised his supervisor that he was unable to do the job and it violated his restrictions. The supervisor's response was "it is what it is." The claimant thereafter felt a sudden and sharp pain in his neck and advised his supervisor of the same. He was advised to continue working. The claimant went to the nurse and was advised that he would need to see his own doctor. 

He treated conservatively and eventually Dr. Kennedy performed a fusion from C4-C7. Dr. Kennedy opined that the August 2009 accident was the prevailing factor in causing the current cervical spine condition, and the surgery was reasonable and necessary to cure and relieve the effects of his injury. Dr. Kitchens testified on behalf of the employer, and found that the claimant's work activities in August 2009 caused a temporary aggravation of the claimant's pre-existing cervical and lumbar spondylosis, but it did not constitute the prevailing factor in causing the claimant's current cervical spine condition.

The ALJ found that the claimant sustained an accident arising out of and in the course of his employment, but the accident was not the prevailing factor causing both the resulting medical condition and disability. The Commission partially agreed finding that the claimant sustained an accident arising out of and in the course of his employment. However, it believed that Dr. Kennedy was more credible in that the August 2009 accident was the prevailing factor in causing a new cervical spine injury. The Commission noted that from 1997 until 2009 the claimant had an excellent work record. There was no reason to believe that the sudden, dramatic and permanent increase in the claimant's symptoms and resulting need for surgery were not directly and primarily a result of the work injury. Therefore, the Commission held that the August 2009 accident was the prevailing factor causing the resulting cervical spine injury and associated disability. 

The Commission further noted that the Courts have made it clear that once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flowed from the work injury. The Commission found Dr. Kennedy's opinion that the medical care and treatment rendered to the claimant following the August 2009 accident was reasonably required to cure and relieve the effects of the claimant's work injury. Therefore, the employer was responsible for the claimant's treatment including the fusion.

Employer Responsible for PTD Benefits After Non-surgical Low Back Injury, Despite Claimant's Numerous Pre-existing Conditions Including Two Fusions 

In Leonard v. Branson Granite & Marble, LLC, Injury No. 08-058428, the claimant sustained an injury to his lower back while lifting a piece of granite on July 9, 2008. He was diagnosed with an annular tear at the L5-S1 level, underwent injections and was placed at MMI on April 9, 2009.

The claimant did have a rather significant history of back problems. In 1993 he sustained an injury to his lower back and settled a workers' compensation claim for 9% of the body. In 1995 he was in an automobile accident which resulted in the need for two fusions. Thereafter he was off work for 11 months. However, he did return to work, but he could not work as fast as he could prior to this injury. In 2000 he received a settlement of 17.5% of the body referable to the back, 5% of the left shoulder and 5% of the left knee. In 2001 he sustained another injury and received a settlement of 15% of the left shoulder.

The claimant's parents then opened the insured and the claimant ran this business, beginning in 2001. He testified that on a day to day basis he was involved with measuring, cutting, fabricating and installing granite and marble. He did have people working under him. He did have some restrictions, but he worked 40+ hours a week. He also would go home and rest if he needed to, which he did once or twice a month. It was also noted that he was very active in extracurricular activities including golf, basketball, softball and touch football.

After he was released at MMI from his July 2008 injury, he continued to treat with his primary care physician with pain medications. His doctor opined that he needed to lie down several times a day and could only occasionally lift and carry up to 20 pounds. He attributed these limitations to the 2008 injury only. Mr. England, the claimant's expert, also believed that the claimant was PTD as a result of the July 2008 injury, as the claimant was able to work before the last accident. Mr. Eldred, the employer's expert, opined that the claimant was PTD as a result of the combination of the last injury and his prior disabilities.

The ALJ concluded that the claimant was PTD as a result of the last injury alone. The ALJ noted that although it was clear that the claimant had significant injuries and medical conditions prior to the July 9, 2008 injury, he had no work restrictions imposed as a result of any of his pre-existing conditions. The Judge did note that the claimant's previous conditions affected the speed he could work and the amount that he could lift. However, he nevertheless had been able to return to work performing at least medium level work activity. Therefore, the employer was responsible for future medical treatment to cure and relieve the effects of the work injury, and PTD benefits. The Commission affirmed the decision of the ALJ.

Claimant's Need for Another Procedure Due to Pre-existing Condition Not Work Injury

In Cureton v. Construction Trailer Specialists, Inc., Injury No. 11-068793,the claimant sustained an injury to his right wrist on August 22, 2011, after he tripped and fell. The claimant had a very extensive prior history with respect to his right wrist beginning in 2007, when he was in a motor vehicle accident. He underwent an open reduction and internal fixation of a right scaphoid fracture. He underwent a second procedure in April 2008, and he continued to have symptoms, follow up with physicians, and take pain medication into 2011. He was seen just a few weeks prior to the date of injury for his right wrist, at which time it was noted that he had pain, swelling and weakness in his right arm and right hand which was continuous. The claimant's treating physician opined that he needed a third procedure and that he would not have needed this surgery if he had not had the work injury on August 22, 2011.

Dr. Strecker testified on behalf of the employer and opined that the claimant sustained an aggravation of a pre-existing non-union of the scaphoid fracture. Dr. Strecker further opined that the need for surgery was due to his pre-existing condition.

The ALJ denied the claimant's claim for additional treatment finding that the accident simply aggravated a pre-existing condition and the accident was not the prevailing factor in causing both the resulting medical condition and disability. The ALJ noted that from 2007 up through August 4, 2011, the medical records reflected that the claimant had symptoms in his right hand and wrist. Furthermore, after the accident, the treating physician prescribed the same medication and the same dosage that he had prescribed prior to the work injury. Furthermore, he noted that Dr. Strecker believed that the accident was just an aggravation of the claimant's pre-existing condition and was a mere triggering event which exacerbated or provoked his symptoms, but did not cause them. The Commission affirmed the decision of the ALJ.

Claimant's Fusion Needed to Cure and Relieve Him From Effects of Work Related Back Sprain

In Rick Sutberry v. TransWorld Airlines, Inc., Injury No. 00-081375, the claimant was lifting a heavy shipping box at which time he felt a pop in his lower back. He underwent authorized care for nine days and was released from care. He did not seek medical treatment for his back for a year and a half, and then began treating with his family physician, at which time he presented with complaints of right-sided low back pain for two days. He reported that his symptoms began when he was getting out of a chair. He did report a history of frequent low back pain on an irregular basis, and reported that his symptoms seemed to be occurring more frequently than in the past. On October 23, 2006 he underwent a fusion.

Dr. Cohen testified on behalf of the claimant and found that the surgery was reasonable and necessary, and related to the July 17, 2000 work accident. Dr. Kitchens testified on behalf of the employer, who opined that the work injury resulted in a strain. He opined that the work accident was not a substantial factor in causing the claimant's spondylolisthesis or the need for the surgery. The ALJ accepted the opinion of Dr. Kitchens, and noted the claimant treated for only nine days after his work accident and did not receive any additional treatment until one and a half years after the accident. The ALJ awarded 7.5% of the body referable to the sprain.

The Commission reversed the decision of the ALJ. The Commission noted that the ALJ relied on the opinions from Dr. Kitchens, who opined that the work injury resulted in nothing more than a temporary lumbar strain that resolved with no permanent disability. However, the ALJ found the claimant sustained 7.5% PPD of the body referable to the work injury. Therefore, the Commission essentially found that because the ALJ awarded disability to the claimant when Dr. Kitchens assessed none, the ALJ also rejected Dr. Kitchens' opinion regarding causation. 

The Commission did adopt the ALJ's finding that the work injury resulted in a 7.5% disability to the body. However, it found that the employer/insurer was responsible for the claimant's medical treatment including the back surgery.

Claim Denied Because Claimant's Symptoms Began After She Stopped Working For Employer 

In Compton v. Briggs & Stratton Corporation, Injury No. 08-124131, the claimant worked for the employer from 1989 until 2008. She alleged injuries to her left elbow and left wrist as a result of her repetitive job duties for the employer, a manufacturing company. She underwent a left ulnar nerve release and left carpal tunnel release in April 2010. She did have a prior workers' compensation claim in 2000 wherein she underwent bilateral epicondylectomies of the elbows.

At the time of the hearing the claimant was not employed. She had last worked for the employer in September 2008. She only worked 3 days after that for another employer. Dr. Tate testified on behalf of the employer and found it would be difficult to state that the ulnar neuropathy was related to the claimant's work as her symptoms began in November 2009, when she was no longer working for the insured. Dr. Woiteshek testified on behalf of the claimant, who opined that the claimant's repetitive work was the prevailing factor in causing her condition.

 The ALJ found the opinion of Dr. Tate credible, and found that the claimant did not meet her burden of proof to show that her left upper extremity condition was medically causally related to the alleged occupational disease and her work was the prevailing factor in causing her symptoms. Therefore, the claim was denied. The Commission affirmed the decision and agreed with Dr. Tate's theory that the claimant's ulnar neuropathy could not be linked to any work exposure because her symptoms did not manifest until more than one year after she quit working for the employer and that opinion was not rebutted by any other expert. 

Claim Dismissed Because Not Timely Filed

In Dungan v. A Few Qua Homes, Inc., Injury No. 08-115832, the claimant worked for the employer for more than 20 years. On December 18, 2008 he slipped on ice and fell and hit his head. He did not receive any treatment from the employer. In November 2010 he sought treatment on his own with Dr. Kuhns and underwent steroid injections but they did not relieve his pain. The claimant testified that he thought that his treatment with Dr. Kuhns was being paid by the employer's insurer, but later learned that it was being paid by his private health insurance.

The parties stipulated that the claimant sustained an accident and that a Report of Injury was timely filed. Therefore the claimant had two years from the date the last payment was made on the claim. The last date the employer made payment on the claim was February 19, 2009. The claimant's original Claim was filed with the Division on October 31, 2011. Therefore, the employer argued that the claimant did not timely file the claim. The claimant alleged that the last date payment was made on the claim was after November 2011, when he saw Dr. Kuhns. The claimant also alleged that the Statute of Limitations applies to any medical treatment and was not restricted to medical treatment paid for by the employer. The ALJ found that the claimant or the claimant's private insurer paid for the medical expenses and had no obligation to provide medical treatment under the Statute. Therefore, the ALJ found the last payment of medical expenses paid on the claim was February 19, 2009. Therefore, the Claim was not timely filed and the claim was dismissed. The Commission affirmed the dismissal.

 In Compton v. Briggs & Stratton Corporation, Injury No. 07-036344, the claimant sustained an injury to her lumbar spine on April 18, 2007. The employer/insurer provided treatment at a clinic which was adjacent to the employer's facility. On May 21, 2007 the employer sent a letter to the claimant advising that her condition was not work related, and therefore no additional treatment would be provided under workers' compensation. She received no additional medical treatment, and her employment with the employer ended on September 26, 2008. In 2010 she returned to the clinic requesting medical treatment for her lumbar spine. She did not inform anyone that this treatment was related to her 2007 work injury. The medical bills were paid through her husband's group insurance. She did not file a Claim until January 27, 2012. The employer denied the claim based on the Statute of Limitations.

The ALJ noted that the record reflected that the Report of Injury was filed within 30 days of the injury. Therefore, the two year Statute of Limitations would apply. It was the employer's position that the last payment made on account of the injury was made on May 11, 2007. Therefore, under the two year Statute of Limitations, the Claim must have been filed no later than May 11, 2009. The claimant took the position that her treatment at the clinic in 2010 extended the Statute of Limitations, and her Claim was therefore filed before the Statute of Limitations had expired. However, the ALJ noted that the medical records, as well as her testimony, show that there was no indication that she was requesting treatment under workers' compensation. Therefore, the ALJ found that the last payment made by the employer on account of the injury was on May 11, 2007, and therefore the claimant's Claim for Compensation was not filed before the Statute of Limitations ran.

The Commission affirmed the Award noting that the claimant's attempt to assert a Claim more than two years after the employer stopped paying benefits is nothing more than an attempt to revive an already extinguished claim. 

Commission Affirmed Decision of ALJ Denying Claim Because Witnesses Found to be More Credible than Claimant

In Watkins v. ADM Green Company, Injury No. 11-017103, the claimant alleged that he sustained an injury to his left shoulder while sweeping a barge. He testified that he felt a sharp pain in his left shoulder which radiated into his arm and he informed his co-worker, Mr. Butler, who offered to help him finish sweeping. After the claimant finished cleaning the barge he went to the medicine cabinet and took Ibuprofen and Icy/Hot. The next morning he reported his injury to his supervisor, Mr. Albers.

Mr. Albers and Mr. Butler testified on behalf of the employer, both noting that the claimant sustained an injury while helping his mother move. Furthermore, Mr. Butler denied saying that he would help the claimant finish sweeping. Dr. Woiteshek testified on behalf of the claimant and found that the claimant had a work-related injury, and he had permanent disability. Dr. Nogalski testified on behalf of the employer, who diagnosed possible mild instability with no clear mechanical findings. The doctor also did not identify a specific event and noted that the claimant's complaints were out of proportion to the MRI findings.

The ALJ found that the testimony of Mr. Albers and Mr. Butler was more credible than the claimant's testimony. Therefore, the ALJ found that the claimant did not meet his burden to prove he sustained an accident. The ALJ further found that the injury came from a risk or hazard unrelated to employment, specifically, helping his parents move. Therefore, the ALJ found that the claimant did not sustain a compensable injury.

Claimant PTD as Result of Wrist Fracture and RSD

In Brown v. Massman Construction Company, Injury No. 11-072556, the claimant sustained an injury to her right wrist when she tripped on an air hose and fell. She underwent two surgeries to her wrist. She was also diagnosed with RSD. She did have pre-existing medical conditions. However, she had worked full duty with no hindrance to her employment leading up to her right wrist injury. She also never had requested help or accommodation at work for any pre-existing medical conditions, which included anxiety, diverticulitis, Barrett's esophagus and low back injuries.

Dr. McAllister, the claimant's treating physician, opined that the claimant was not able to work in any significant capacity because she could not use her right hand reliably due to weak grip and pain. Dr. Goldfarb testified on behalf of the employer, and found that the claimant could return to light duty work with a 10 pound lifting restriction. Ms. Gee also testified on behalf of the employer and opined that the claimant could obtain and maintain full-time gainful employment based on the restrictions of Dr. Volarich and Dr. Goldfarb. However, she acknowledged that if Dr. McAllister's statement that the claimant is unable to work is true, she may not be able to return to the work force.

Dr. Volarich testified on behalf of the claimant and assessed 40% of the forearm due to the distal radius fracture and ulnar styloid fracture, and 20% referable to the RSD. Mr. England testified on behalf of the claimant and opined that she was unemployable as a result of her work injury.

The ALJ found that the claimant was not PTD because after an FCE it was determined that she had the capability to work in the light to medium category. The ALJ found the claimant sustained 40% PPD to the right forearm and 20% of the body referable to the RSD.

The Commission modified the decision of the ALJ opining that the claimant was permanently and totally disabled. The Commission further noted that the ALJ relied on the results of the FCE which the claimant underwent on February 28, 2012, and another on March 20, 2012. The Commission noted that the ALJ did not identify which of these FCEs he was relying on. In any event, the claimant had a subsequent surgery on April 18, 2012, so the FCEs would not be particularly relevant in the issue of permanency. Furthermore, the Commission noted that the evaluators during both FCEs noted that the claimant could function at a medium level. However, this was assuming a work schedule of four hours per day, four days per week. Furthermore, the FCEs and physical therapy records noted the claimant had obvious discomfort and objective evidence of injury such as swelling and physical limitations which would almost certainly dissuade any employer from considering her for employment. Therefore, the Commission found that the employer was responsible for permanent and total disability benefits.

MISSOURI WORKERS'

COMPENSATION CASE LAW

UPDATE

JULY 2013 - SEPTEMBER 2013

 

Claim Denied Because Claimant Did Not Prove Fall Came From Hazard Related To Employment 

Jackie Porter v. RPCS, Inc., Case No. SD32492 (Mo. App. 2013)

FACTS: The claimant fell at approximately 4:00 P.M. in the restroom, at which time she fractured her hip. At a hearing before an ALJ, she testified that she had no memory of falling or what caused her fall. She recalled washing her hands and then waking up on the floor. No one witnessed her fall, and there was no testimony that anything was on the floor that caused the claimant to fall, or that when witnesses found her that her clothes were wet or had any substance on them. The ALJ denied the claim because the claimant failed to meet her burden of proof to establish why she fell, there were no witnesses and the claimant was an unreliable historian. The Commission affirmed the ALJ’s Award noting that they were unable to determine the specific risk or hazard that caused her to fall.

HOLDING: The Court noted that an injury shall be deemed to arise out of and in the course of the employment only if it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside and unrelated to the employment, in normal non-employment life. The Court noted that the claimant must show a causal connection between her injury and her work activity in order for the injury to arise out of and in the course of her employment. In order to do so, the claimant must identify the cause of the injury. The Court noted that in this case the claimant was in the bathroom and fell, but there was no evidence that something about her work caused her to fall. Therefore, she failed to prove that she fell due to some condition of her employment or due to an unsafe location due to her employment. The Court found that the only causal connection of the work activity to her injury was the fact that it occurred while she was at work. Therefore, the Court affirmed the denial of benefits. The Court did note that this opinion should not be read to automatically restrict or exclude benefits for injuries of relatively sedentary professional employees such as the claimant based on the risk or hazard of being unrelated to employment.

Claimant Entitled to PPD Benefits not PTD Benefits

Clark v. Second Injury Fund, Case No. SD31644 (Mo. App. 2013)

FACTS: The claimant sustained an injury to his low back, right leg, neck and left shoulder on February 22, 2013, and settled this claim against the employer for 20% of the body. The claimant went to a hearing against the SIF for PTD benefits. Before the claimant’s February 2013 work injury, he had two other documented work-related injuries and had developed diabetes. He had received prior settlements for 30% of the right shoulder, 25% of the left shoulder, 5% of the wrist and 3.25% of the body. After his February 2013 work injury, the claimant returned to work and sustained another injury on May 14, 2013, and again on June 10, 2013, to his neck and low back. The ALJ awarded the claimant PPD benefits, not PTD benefits. The claimant appealed to the Commission who agreed with the decision of the ALJ. The claimant again appealed. 

HOLDING: The Court of Appeals again affirmed, noting that the Commission’s determination that the claimant was not permanently and totally disabled by a combination of his prior injuries and his last injury was not against the overwhelming weight of the evidence. The Court noted that both the claimant’s rating physician and vocational expert opined that he was permanently and totally disabled as a result of a combination of his injuries. However, neither of them addressed the two subsequent injuries. As a result, the Commission found that their testimony was lacking in credibility. The Court further noted that since the claimant returned to work after both of these subsequent injuries, the Commission concluded he could not have been permanently and totally disabled as a result of the earlier May 2013 injury.

Claimant PTD Because No Employer Could Reasonably Be Expected to Hire Him

Larry Underwood v. High Road Industries, LLC, Case No. SD31731 (Mo. App. 2012)

FACTS: On November 28, 2005, while standing on a ladder to install a radiator in a truck, the ladder broke and the claimant fell to a concrete surface, landing on his right side and right hip. He underwent surgery and was initially released in September 2006, but returned to the doctor. Eventually Dr. Olive implanted a permanent spinal cord stimulator. He was again released from care in 2008, and the doctor noted that he did not believe the claimant could work. The claimant testified that he continued to have complaints, noting he could only sit for 30 minutes, stand for 30 minutes, and could only walk about a block and then would need to sit down. He also reported that he was on prescription pain medication and could drive no more than 10 miles at a time. The claimant then underwent an FCE which showed that he could work in the light to medium category. Therefore, Dr. Olive concluded that the claimant could return to the open labor market in some capacity, with restrictions. The ALJ found that the claimant was totally and permanently disabled. The Commission affirmed the decision of the ALJ. The employer appealed.

HOLDING: The Court stated that the test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. The Court found that there was competent and substantial evidence supporting the Commission’s determination that the claimant was unable to compete in the open labor market based on his physical restrictions, his limited transferable job skills, his below average intelligence and his concentration problems, and that no employer would reasonably be expected to hire him. 

Claimant's Job Duties Were A Substantial Factor in Causing His Heart Attack Which Caused His Death

William Riley (Deceased); Vicki Riley and Landon Riley v. City of Liberty, Case No. WD75879 (Mo. App. 2013)

FACTS: On October 6, 2004, the claimant died of a heart attack while at home. The claimant’s widow filed a claim for death and funeral benefits. An ALJ denied the claim. The relevant facts are as follows. The claimant was the Deputy Fire Chief and his duties were primarily administrative, but essentially kept him on call at all times. On October 5, 2004 the claimant had a heated discussion with a Captain while at work regarding a police dispatcher. After the conversation, the claimant appeared angry, was red faced and it took another Captain 45 minutes to calm him down. Later that day he responded to a medical emergency call. He assisted another fireman loading a man onto a stretcher, and removed him from the building and into the ambulance. Witnesses testified that the claimant did not appear well. The claimant then went back to the station and was using the treadmill at which time he looked pale, ashen and sweaty. There was also testimony that the claimant was having bad indigestion. A paramedic for the fire department testified that looking grey and having indigestion are signs of undergoing a heart attack. The claimant arrived home at 7:00 P.M., and at around 4:00 A.M. he went into cardiac arrest and was pronounced dead soon thereafter. The Commission found that the events of October 5, 2004 resulted in an increased demand on the claimant’s heart, which culminated in ischemia, which deteriorated to heart failure in the hours leading up to his death. Therefore, the claimant's widow was entitled to benefits as the claimant did sustain an accident arising out of and in the course of his employment.

HOLDING: The Court noted that in this case the claimant only had to prove that his work was a substantial factor in causing the heart attack. The Court noted that Dr. Schuman testified on behalf of the claimant, and opined that the claimant’s work activities on October 5, 2004 were the prevailing factor in his cardiac arrest. Dr. Thompson, the employer’s medical expert, testified that the claimant’s job duties were not a substantial contributing factor in causing his death. The doctor noted that according to studies, heart attacks are only related to a firefighter’s work activities if they occur within one hour of extreme exertion. The Court noted that the Commission chose to rely on Dr. Schuman’s opinions and the evidence supports the Commission’s conclusion that the claimant suffered an accident in the course of his employment and his employment was the substantial factor in his cardiac arrest. Therefore, the Court affirmed the Commission’s Award of benefits.

[Editor’s Note: Please note that this is an old law case and therefore the claimant only had to prove that his job duties were a substantial factor in causing the heart attack. However, please note Dr. Schuman did testify that the claimant’s job duties were the prevailing factor in causing his heart attack. Therefore, it is possible this case would come out the same way under the 2005 Amendments.]

To Win a Retaliation Suit Claimant Has to Prove that Exercising His Rights Under Workers’ Compensation Was the SOLE Reason for His Termination

Templemire v. W&M Welding, Inc., Case No. WD74681 (Mo. App. 2012)

FACTS: On October 10, 2005 the claimant began working for the employer and on January 9, 2006 he sustained an injury to his foot and received benefits. During his employment the claimant only had one disciplinary write-up which occurred after his injury. On November 26, 2006 Gary McMullin, the owner of the company, received a request from a customer to have a railing painted and ready to pick up by 4:30 that afternoon. Before the railing could be painted it had to be washed. Therefore, the claimant’s supervisor assigned him to make various deliveries and he returned at 1:50 P.M. Before reaching the wash bay he stopped to rest his foot, at which time he was approached by the employer, Mr. McMullin and fired because the rail had not been completed. The claimant asked why he was fired and he was told that he wanted the railing done and he hadn’t washed it. The claimant called the insurance company who then called the employer to discuss the claimant’s termination. Mr. McMullin advised that he told the claimant to wash some parts, he refused and therefore he was fired. They discussed the claimant’s need for breaks and Mr. McMullin advised that the claimant was milking his injury. The claimant then filed a lawsuit against his employer alleging retaliation.

HOLDING: At a trial, Mr. McMullin testified that he fired the claimant for insubordination. The claimant put on evidence showing that Mr. McMullin had previously referred to injured employees as whiners, and there was a witness that had previously been an employee of Mr. McMullin, who filed a work comp claim and was later terminated. He also pointed to an employee who had multiple disciplinary write-ups and a drug problem; however, he had not been terminated. Furthermore, the type of disciplinary write-up the claimant received after his injury was not a type of violation for which other employees had received write-ups. At the trial the jury found in favor of the employer and the claimant appealed. The Court of Appeals confirmed the decision of the trial court, noting that the jury instruction was in line with the law. The jury instruction read that the exclusive cause of the claimant’s discharge was his filing of a workers’ compensation claim. The Court looked to prior cases and confirmed that the claimant has to prove that the sole reason he was fired was because of exercising his rights under the Act.

Employer Not Insurer Has Right to Direct Treatment

Demore v. Demore Enterprises, Inc. and America First Insurance Company, Case Nos. SD32350 and SD32362 consolidated (Mo. App. 2013)

FACTS: Herschel and Doris Demore, and their daughter Delores, worked for the family business, Demore Enterprises. Delores got a call at the employer’s office during business hours reporting vandalism of one of their nearby properties. All three of the Demores left the office and headed to the property, all in Herschel’s personal vehicle. In route they were injured in a car accident. Doris Demore filed for workers’ compensation after the insurer refused benefits and medical treatment, and the ALJ awarded temporary and permanent total disability benefits, past medical expenses and future medical treatment. The ALJ also opined that the “employer/insurer” waived its rights to select the claimant’s medical providers for future medical care. The Commission affirmed the Award in part. The Commission reversed the ALJ’s decision that the “employer/insurer” waived its right to control future treatment. The Commission noted that the general rule still applies and the “employer/insurer” maintains control over the selection of the claimant’s future medical providers.

HOLDING: The Court, in essence, agreed with the Commission’s award noting that the “employer/insurer” did not waive its right to direct treatment. However, it did note that pursuant to Statute it is actually employers alone, not insurers, that have the right to direct medical treatment. Therefore, the result in this case was that the claimant, who was the employer, was able to direct her own treatment.

Claimant Has to Prove Employer Not Prejudiced By Lack of Notice Before Burden Shifts To Employer to Prove Prejudice

Aramark Educational Services, Inc. et. al. v. Leotha Faulkner, Case No. ED99439 (Mo. App. 2013)

FACTS: On January 29, 2010 the claimant slipped and fell on black ice while walking between two buildings on Washington University’s campus, where she was working. She did not immediately report the incident to the employer, as she did not believe she was hurt. Ten days later she noticed swelling and sought treatment on her own. At this time, she again did not report an injury to her employer. She underwent unauthorized surgery on April 8, 2010. Prior to her surgery, she did report her injury to her employer on March 31, 2010, two months after her injury at which time the employer offered medical treatment. However, she denied the offer since she already had scheduled surgery. The claimant then filed a Claim and at a hearing the ALJ denied the claimant benefits on the grounds that she failed to provide proper notice of the injury. On appeal, the Commission reversed the ALJ’s decision, and awarded benefits. The employer appealed, alleging the claimant should be denied all benefits because she failed to give the employer timely notice.

HOLDING: The Court noted that the employer has the burden of establishing any affirmative defense which includes statutory notice. Once the employer establishes a lack of timely written notice, the burden shifts back to the claimant. The claimant must then establish that her failure to give timely written notice did not prejudice the employer. A claimant can prove lack of prejudice in one of two ways. First, if the claimant offers substantial evidence that the employer had “actual knowledge” of the injury, there is no need for written notice. If this is the case, it is assumed that the employer was not prejudiced and the burden then again shifts to the employer, who has to show prejudice. 

The second way a claimant can prove lack of prejudice is presenting actual facts showing that the employer was not prejudiced. The Court noted that in light of the fact that it was undisputed that the claimant failed to provide employer with proper notice, it is her burden to prove lack of prejudice. The Court found that the claimant did not provide any evidence supporting that the employer was not prejudiced. The Court noted that the Commission equated the employer's admission that the claimant’s injury occurred in the scope of her employment with admission that it was not prejudiced. The Court noted that admission of a claimant’s injury did not relieve the claimant of her duty to establish a lack of prejudice. The Court noted that, basically, the Commission shifted and placed the burden on the employer prematurely, as the claimant did not meet her burden. The Court further noted that all cases which have shifted the burden to an employer to prove prejudice, where there was untimely notice, have required the claimant to first provide evidence of no prejudice to both the employer’s investigation and the employer’s need to provide medical treatment to the claimant to minimize disability. The Court found the claimant did not prove any evidence of lack of prejudice. Therefore, the Court reversed and remanded the decision of the Commission.

Widow Entitled to Entire Benefit Amount For Two Years When Remarry

Ash v. Millennium Restoration and Construction, Case. No. SD32381 (Mo. App. 2013)

FACTS: The claimant was fatally injured when he fell down an elevator shaft while working for the employer. He was survived by his spouse and their two young children. On January 21, 2009 the Commission awarded weekly benefits in the amount of $742.72. The Award allocated $495.15 per week to the children and $247.57 per week to the spouse. The spouse remarried on December 9, 2011. On October 3, 2012 the Commission issued a decision modifying its previous Award based on the Statute, which grants a spouse a remarriage benefit equal to the entire death benefit for two years. Therefore, the spouse was awarded $77,242.88, which represented the weekly benefit of $742.72 x 104 weeks. The employer appealed, arguing that the remarriage benefit should have been calculated only using the portion of the weekly benefits that was allocated to her, in this case, $247.57.

HOLDING: The Court noted that the issue in this case was whether a spouse that remarries receives the entire death benefit or only the portion of the death benefit that was initially awarded to the widow as the surviving spouse. The Court noted that strict construction is used to interpret the Statute and that §287.240 does not contain any language which expressly indicates that the remarriage benefits should be calculated based on only the amount of the weekly death benefit initially given to the remarrying spouse. The Court noted that if the legislature intended for the spouse to only receive the part of the benefits that was initially awarded to her, specific language would have been added to the Statute. Therefore, the Court affirmed the Commission’s decision that the widow was entitled to a lump sum of $77,242.88.

Claimant Assaulted and Killed By Boyfriend at Work Found Not Compensable and Parents Could Pursue Wrongful Death Suit against Employer 

Flowers v. City of Campbell, Missouri and William Riley, and Dolgen Corp. d/b/a/ Dollar General Stores, and Billie Gage, Case No. SD31440 (Mo. App. 2012)

FACTS: The parents of the employee shot to death by her boyfriend while she was at work at the employer's store brought a wrongful death action against the employer, store manager, city and police officer. The employer filed for summary judgment arguing that workers’ compensation was the exclusive remedy because the death arose out of and in the course of the employment because the employee was a victim of unprovoked violence or an assault while at work. The trial court granted summary judgment and the employee’s parents appealed.

HOLDING: The Court of Appeals reversed the summary judgment stating that the employee’s assault was not compensable. The Court noted that although the assault on the employee was unprovoked and unjustified, her injuries did not arise out of her employment because the assault was directed at her for purely personal reasons. Therefore, the employee's parents could proceed with the wrongful death suit.

Commission Has Statutory Authority to Approve Settlement 

Nance v. Max & Electric, Inc., Case No. WD74942 (Mo. App. 2012)

FACTS: An ALJ found that the claimant was permanently and totally disabled as a result of an occupational disease he sustained at work and was awarded lifetime benefits. Thereafter, the parties entered into an agreement to commute the claimant’s PTD benefits into a lump sum settlement of $181,434.24. The agreement was executed by the parties and the attorney for the employer sent the agreement to the Commission for approval on October 27, 2011. Later that afternoon the claimant died of causes unrelated to the work injury. When the employer learned of the claimant’s death, it filed a Motion to Withdraw the agreement. However, the claimant’s surviving wife moved to have the agreement approved. The Commission entered an Order denying the request to commute and denying the claimant’s spouse’s request to approve the settlement agreement, finding that it did not have the authority to approve the agreement because the value of the claim, once the claimant had died, was zero.

HOLDING: The Court of Appeals held that the Commission did have the statutory authority to consider the settlement agreement and under the Statute, the Commission was required to approve the settlement unless it was procured by fraud or undue influence, or was against the rights of the parties. The Court reversed and remanded the case to the Commission with instructions to approve the agreement.

Attorney's Fee Lien Has Priority Over Department of Social Services Lien

Lake v. Department of Social Services, Case No. WD74306 (Mo. App. 2013)

FACTS: Attorney Lake represented the claimant in a workers’ compensation claim. The claim was tried before an ALJ on stipulated facts between the claimant and his employer. They agreed to 38% PPD to the body, and that the claimant had incurred medical expenses in the amount of $45,001.73. The Missouri Department of Social Services had filed a lien in that amount to recover funds that Medicaid had paid for the claimant’s treatment for the work injury. The employer stipulated that they would issue payment in that amount directly to the Missouri HealthNet Division to resolve the lien.

HOLDING: The Commission entered an Award which included a 25% attorney’s fee specifically on the medical expenses. The Commission noted that this 25% fee applied to the amount the employer paid to the Department of Social Services (Department). Since the employer paid the entire amount of the lien to the Department, Lake was to recover the portion of his lien directly from the Department. Lake then demanded payment from the Department which rejected his claim. Lake brought a civil suit against the Department for his attorney’s fees, and the Circuit Court entered judgment in favor of the Department. The Court of Appeals reversed, holding that an attorney's fee lien, by Statute, has priority over the Department of Social Services liens for Medicaid reimbursement.         

Employer Not Responsible For Unauthorized Treatment Because Claimant Did Not Ask For Treatment

In Rainbolt v. Audrain Medical Center, Injury No. 09-002662, an ALJ determined that the claimant sustained a compensable injury. The ALJ awarded past medical expenses incurred in the course of her treatment with Dr. Brockman, a physician that she chose to go see on her own. The Commission reversed this aspect of the ALJ’s Award in that it found that the claimant did not ask the employer to furnish her with any psychiatric treatment prior to seeing Dr. Brockman, and there was no evidence that the employer had notice of the claimant’s need to see a psychiatrist and thereafter failed to furnish treatment. The Commission noted that this was not a case wherein the claimant was forced to see her own provider after the employer denied the claim. Therefore, the employer was not liable for the charges incurred for treatment with Dr. Brockman because the claimant sought treatment on her own and it was at her own expense.

Fall on Stairs Found To Be Compensable Because Had to Use Stairs to Access Tower 

In Morris v. Curators of the University of Missouri, Injury No. 11-021524, the claimant had retrieved a patient’s cell phone from the ground floor of the hospital and was taking it to the 5^th floor of the ICU tower, when she was walking up the stairs at which time she fell forward on the stairs and injured her low back. It was noted that in order to get to the ICU tower she had to use the stairs. In its Answer, the employer admitted the claimant sustained an accidental injury. There was no request to file an amended Answer denying the accident until approximately one hour into the hearing. Therefore, the ALJ found at the hearing that the employer had admitted that the claimant sustained a compensable accident and injury.

The ALJ went on to note that assuming that the issue had been properly and timely raised, it was clear that the claimant did indeed sustain a compensable accident and injury arising out of and in the course of her employment with the employer. The ALJ noted there was an unexpected traumatic event, as the claimant fell on the staircase. The event was identifiable by a specific time and place on the date listed, and in the location noted. The claimant had immediate symptoms of the injury, and the hazard or risk of falling on the stairs was a risk or hazard related to the employment as claimant could not access the 5^th floor of the ICU tower without using the stairs. This was a temporary ward, and therefore the Judge found that the matter was in fact compensable, and the employer/insurer was to provide medical treatment.

Rotator Cuff Tear Related to Prior Injury Not Work Injuries 

In McAndrew v. Metro Materials Inc., Injury No. 09-073619, the claimant, a teamster driving a cement truck, exited his truck and while walking into the plant he fell and hit his right arm and shoulder on a concrete slab on September 15, 2009. He felt massive pain throughout his right side. Three months prior to his injury, on June 1, 2009, he fell off a bicycle in his yard at home and landed on his right side. Thereafter, he began treating with a chiropractor and was diagnosed with a rotator cuff strain. He continued to treat for his shoulder, and on September 8, 2009, a week prior to his injury, he was seen by his family physician at which time he reported continued shoulder pain and weakness, along with difficulty lifting anything. It was noted in the records that the claimant believed that his rotator cuff was torn because he was having so much trouble when he lifted his arm. The claimant denied telling his doctor this. In any event, prior to his injury an MRI was ordered and scheduled for a day after the claimant’s work injury. The MRI showed a complete rotator cuff tear involving the entire supraspinatus tendon and superior fibers of the subscapularis tendon, with significant retraction.

On September 22, 2009, a week after the first work injury, the claimant had another work accident when he stepped out of the cab of his truck, he lost strength in his right arm and fell hitting his right shoulder on the ground. After this injury he was unable to move his arm. He underwent surgery with Dr. Fagan who opined that the cause of the rotator cuff tear was most likely the claimant’s September 22, 2009 injury. Dr. Wayne, the employer's expert, opined that the claimant’s shoulder pathology and symptoms were due to the June 2009 fall which was prior to both of the work accidents. The ALJ found that the claimant failed to meet his burden of proving that the work accidents were the prevailing factors in causing his rotator cuff tear. The ALJ found Dr. Wayne more credible. The ALJ also did not find the claimant credible in that he testified that he only had one visit to the chiropractor and his shoulder was fine, and the medical records did not corroborate his testimony. The Commission affirmed the ALJ's decision.

Carpal Tunnel Compensable Because No Evidence that Condition Was Caused By Anything Other Than Job Duties

In Lane v. City of Independence, Injury No. 11-014662, the claimant was a records clerk at the Independence Police Department and alleged carpal tunnel syndrome as a result of her job duties. The claimant was referred out for evaluation, prescribed splints and provided an ergonomic layout of her work station. Her symptoms continued and she was referred to Dr. Rosenthal, who believed that she had carpal tunnel but it was not work-related. Dr. Stuckmeyer, the claimant’s expert, opined that the carpal tunnel was a result of her job duties. The ALJ noted that claimants seeking benefits for an occupational disease must present “substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life.” An occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The ALJ further noted the claimant must also establish the probability that the occupational disease was caused by work place conditions. The ALJ noted that there was no evidence introduced that anything but repetitive typing all day long for 5 years at the police department caused the claimant’s carpal tunnel syndrome. The ALJ determined that the competent evidence supported a determination that the claimant’s work for the police department was the prevailing factor that caused her carpal tunnel syndrome, and the employer shall provide medical treatment to cure and relieve the effects of the injury. The Commission affirmed the ALJ’s Award.

Horseplay Found Compensable and Claimant Awarded Medical Treatment and Disfigurement Equal To Cost of Medical Treatment

In Johnson v. City of Carthage, Injury No. 11-054387, the claimant, a lifeguard, was injured while engaging in an incident in which another employee was shooting him with a squirt gun filled with soda. The claimant was keeping the other employee at bay by holding a chair with its legs in the air facing the other employee. The other employee grabbed the chair and pushed it towards the claimant, at which time his teeth were chipped. The employer alleged horseplay, which would not be compensable. The claimant testified that earlier he had used a squirt gun filled with water to shoot the other employee, and that this type of activity was a regular occurrence for the 7 weeks of his employment with the City of Carthage. The manager of the pool and supervisor of the lifeguards would tell the participants who were using the squirt guns to knock it off. However, the activity continued. No one was disciplined for using squirt guns.

The ALJ looked to Wisely v. Sysco Foods, 972 S.W.2d 313, wherein the Court held that if an injury was sustained during horseplay, which had become an incident or risk of employment, then that accidental injury was compensable even if the party was the aggressor or voluntary participant in the activity. Here, the ALJ found that the activities which resulted in the ultimate accidental injury to claimant in this case were prevalent at the City of Carthage pool, where the claimant worked as a lifeguard and were an incident or risk of his employment. Therefore, the ALJ concluded that the claimant was injured through activities which arose out of and in the course of his employment, and were the prevailing factor in causing both his condition and his disability.

The ALJ awarded both past and future medical treatment for his tooth, as well as the loss of one tooth or 1.25 weeks of disability, which was agreed on by the parties. The claimant also sought disfigurement for loss of a tooth. The ALJ noted that Missouri Regulations provide that disfigurement shall be allowed for the loss of a front tooth, which was the injury in this case, in an amount sufficient to cover the reasonable costs of the artificial teeth. The ALJ found that the claimant was entitled to disfigurement in the amount of $770.00, the cost of the treatment and artificial tooth. The claimant did argue that he would be entitled to additional disfigurement in the event that replacement dental devices were required as future medical benefits. However, the claimant provided no basis for that assertion, and the ALJ only ordered disfigurement to the extent of the past medical provided. The Commission affirmed the decision of the ALJ.

Commission Reversed Decision of ALJ Denying Benefits for Carpal Tunnel Syndrome 

In Harris v. Bi-State Development Agency, Injury No. 10-021927, the claimant was 63 years old at the time of the hearing. She had worked for the employer for ten years as a van driver and alleged carpal tunnel syndrome as the result of her job duties. Prior to working for the employer she was diagnosed with diabetes, and was initially able to control the diabetes by diet, but eventually began taking oral medication. About the same time she started working for the employer she was also diagnosed with hypertension. She also struggled with obesity. The claimant drove up to 100 miles a day throughout the St. Louis metropolitan area. She noted that there was power steering in the van, but it was more difficult to steer than her car. She also had to assist passengers in wheelchairs, which required her to strap wheelchairs into the van. The claimant was sent to BarnesCare and the doctor concluded that the claimant’s condition was not work-related. She sought treatment on her own with a hand surgeon and underwent bilateral carpal tunnel releases. Dr. Schlafly and Dr. Margolis testified on behalf of the claimant, noting that the claimant’s work was the prevailing factor in causing her condition. Dr. Kaoo and Dr. Crandall testified on behalf of the employer, finding that the claimant’s job duties did not cause her carpal tunnel syndrome. An ALJ found Drs. Kaoo and Crandall’s opinions more credible than the opinions of Dr. Schlafly and Dr. Margolis, and that the claimant did not meet her burden to show that the carpal tunnel syndrome arose out of the repetitive work activities. The claimant appealed alleging that the ALJ erred in crediting the employers’ experts over her experts.

The Commission reversed the decision of the ALJ, noting that the claimant’s job duties did require firm repetitive grasping and repetitive stress to the flexor tendons and muscles of the claimant’s forearms. The Commission adopted the opinions of Dr. Schlafly and Dr. Margolis, and found that the claimant’s work was the prevailing factor in causing her bilateral carpal tunnel syndrome, as it appeared that the claimant’s occupational disease had its origin in a risk connected with the employment, and appeared to have flowed from that source as a rational consequence. Therefore, the Commission found that the claimant sustained an occupational disease arising out of and in the course of her employment and the employer was liable for past medical expenses, TTD and PPD.

Commission Reversed ALJ's Award Denying That Rotator Cuff Was Due To Occupational Disease

In Bowyer v. Mineral Area Community College/MACC, Injury No. 10-034774, the claimant testified that he had worked for the employer for approximately thirty years, mostly as a maintenance supervisor, half supervising and half performing general maintenance tasks. The employer's witness disagreed and estimated that the claimant spent 75% of his time on supervisory or administrative duties. The claimant first noticed pain in his shoulder in early 2010 when plowing snow. He testified that in May 2010 he was very busy performing maintenance as they were getting the campus ready for graduation. On May 6, 2010 the claimant reported to his supervisor that he felt he hurt his shoulder. Dr. Milne opined that the claimant’s job duties likely aggravated his condition, but were not the primary or prevailing factor in causing his condition, and therefore, the employer denied treatment. The claimant treated on his own with Dr. Ralph, who opined the claimant’s job duties were the prevailing factor in causing a right rotator cuff tear for which the claimant underwent surgery. The ALJ denied the claim, concluding that the claimant failed to offer credible evidence that he sustained an occupational disease arising out of and in the course of his employment.

The Commission reversed the decision of the ALJ finding that Dr. Ralph’s opinion was the most persuasive. The Commission noted that Dr. Ralph’s credible findings demonstrate that the claimant sustained an occupational disease that appears to have had its origin in a risk connected with the employment and appears to have flowed from that source as a rational consequence. Therefore, the claimant sustained an occupational disease to his shoulder arising out of and in the course of his employment.

Personal Assault on Employer's Parking Lot Not Compensable

In Brown v. George’s Processing, Inc., Injury No.: 09-063503, the claimant was going on a break to smoke when he was attacked by two aggressors. He was hit by a baseball bat swung by one of the aggressors, was placed in a choke hold and knocked out. The claimant admitted at a hearing that there was a personal disagreement between the aggressor and the claimant regarding his former girlfriend. There had been an earlier fight between the two which resulted in charges being filed against the claimant. The claimant admitted that the assault had nothing to do with his work at the employer. (Editor's note: It is not noted whether the aggressor was also an employee of the employer).

The ALJ looked to former case law, noting that an injury sustained by an injured worker is not compensable if an assault arose out of a personal matter unconnected with the claimant’s work duties, and that private personal quarrels are not compensable. The ALJ noted that the changes to the Statute in 2005 did not in any way change the application of the assault doctrine. The ALJ noted that the claimant appeared to assert that there was some special hazard from the claimant’s work location through testimony elicited that there were no cameras, nor was there any security, a fence or windows from which other workers could observe the parking lot where the claimant was assaulted. However, the ALJ noted that testimony also showed that there were numerous workers at the location who would transport materials at the mill using trucks and trains at various times. The ALJ noted that there was nothing inherent in the testimony that showed the claimant was exposed to a greater risk than that which he would have been exposed to outside of his work. The ALJ finally noted that the record as a whole proved only that the work place provided a locale for the personal assault, rather than exposing the claimant to any greater hazard at that location. Therefore, the claimant had not met his burden of proof and the claim was denied. The Commission affirmed the decision of the ALJ.

Claimant PTD Because Surveillance Was Not Persuasive Since Only Showed Limited Activity

In Mark Dannenmueller v. Noranda Aluminum, Inc., Injury No. 03-001980, the claimant injured himself while lifting a 90 pound block in 2003, sustaining a herniated disc at L5-S1, for which he underwent surgery. In 2004, the authorized physicians believed that the claimant was permanently and totally disabled.  However, years later, the employer’s experts, Dr. Cantrell and Dr. Coyle, viewed surveillance footage from 2006 and 2007 as well as 2009 and determined that the claimant was not permanently and totally disabled. The claimant’s experts, Mr. England and Dr. Volarich, never reviewed the surveillance but on cross admitted that if the surveillance showed that the claimant was capable of repetitive activity their opinions could change. The ALJ viewed the surveillance and found that there was no evidence that the claimant needed to avoid any repetitive bending or operation of heavy equipment or needed limitations regarding squatting, walking, carrying, kneeling, lifting, or climbing. The ALJ determined that the claimant was not permanently and totally disabled.

The Commission disagreed, noting that the surveillance covered August 2006 - March 2007, and July 2009 - October 2009. From approximately 310 hours of surveillance the investigators only gathered 48 hours of video footage. The Commission viewed the surveillance footage which showed the claimant engaged in about 15 or 16 individual incidences of activities such as bending to pick up a garden hose, pulling weeds, riding an ATV, operating equipment such as lawn mowers and leaf blowers, and running to catch a dog. The Commission noted that during the entire period that the investigators followed the claimant, only about 5 days demonstrated him engaging in any activities spanning a time period over an hour. The longest period of activity was approximately two hours on October 1, 2006, when the claimant was mowing the lawn. The Commission further noted that the investigators did not capture any significant activity by the claimant 9 days after that date, which supported the claimant’s testimony that he was “laid up” with back pain after engaging in activities such as those depicted on the videos. Therefore, the Commission found that the videos depicted only isolated moments over a lengthy period of time rather than anything approaching the demands of full-time employment. Despite the surveillance, the Commission found that the claimant was permanently and totally disabled.

Claimant's Live Testimony More Credible Than Employer's Affidavit

In Ricky Blanchard v. Staples, Inc., Injury No. 10-051990, the claimant alleged carpal tunnel syndrome as a result of his job duties. The claimant worked for the employer for 23 years and last worked as a shipping supervisor for 5 - 7 years. The claimant testified that his job duties as shipping supervisor involved both supervisory tasks and manual labor. The claimant testified at length with respect to his job duties at the hearing. The employer prepared an Affidavit describing his job duties and submitted it at the hearing. The ALJ found that the claimant failed to establish that his work was the prevailing factor in causing his carpal tunnel syndrome, and denied the claim.

The Commission reversed the decision of the ALJ, noting that the claimant testified that the list of the job duties prepared by the employer were incomplete, because they did not include all of the physical tasks that he performed on a daily basis. The Commission further noted that the employer did not present any live witnesses to rebut the claimant’s testimony as to his job duties or to show that the employer’s written description of his duties were more accurate than the claimant’s testimony. The Commission found that the claimant’s testimony was more persuasive than the Affidavit from the employer describing the claimant’s job duties. The Commission also believed that the claimant's expert, Dr. Beatty, was more credible because he took into account all of the claimant's job duties and the employer's expert, Dr. Goldfarb relied on the employer's description of the claimant's job duties which was incomplete.

Claimant's Date of Injury Determines Whether Dependents Are Entitled to Benefits 

In Donald Busick v. Wilson Plumbing Company, Injury No. 06-110636, a living claimant went to a hearing before an ALJ arguing thatSchoemehl will apply to his claim and therefore his wife is entitled to permanent total disability benefits if he dies of a cause unrelated to the work injury.

[Editor's note: Schoemehl v. Treasurer of State, 217 S.W. 3d 900 (Mo. App. 2007), found that if a claimant dies from causes unrelated to the work injury, the claimant's dependants are entitled to continuing PTD benefits.Schoemehlwas abrogated by an Amendment on June 26, 2008. The Courts have held that forSchoemehl to apply the Claim had to be pending between January 9, 2007 whenSchoemehl was decided and when the Amendment abrogatingSchoemehl took effect, June 26, 2008.]

The ALJ found that Schoemehl applied because his date of injury was September 26, 2006 and therefore his claim was pending in between January 9, 2007 and June 26, 2008. Therefore, the claimant’s wife was entitled to PTD benefits in the event he dies of causes unrelated to the work injury. The employer appealed arguing that because the claimant did not file his claim until January 19, 2009, which was afterSchoemehl was abrogated, the claimant did not have a claim for PTD benefits that was pending during the Schoemehl window. The claimant again argued that because his date of injury was November 26, 2006Schoemehl applied. The Commission agreed with the claimant noting that the Court previously focused on the date of injury to determine whether the claimant’s dependents may recover under Schoemehl. Therefore, the Commission affirmed the decision of the ALJ noting that Schoemehl did apply. However, in light of the fact that the claimant was still living, the claimant’s wife’s right to receive benefits pursuant toSchoemehl remained contingent and could not be adjudicated at this time.

Plantar Fasciitis After 13 Hour Shift Found To Be Compensable Accident

In Ricky Bisch v. St. Louis Area Insurance Trust, Injury No. 09-065775, the claimant was a janitor and on June 27, 2009 he had to work an overnight shift stripping and refinishing floors in preparation for an important event on the employer’s premises. No one was available to help the claimant perform this task, and he worked 13 hours on his feet. After he finished his job duties, he sat down for about 5 minutes and when he stood back up, he felt excruciating pain in the center of his right foot towards the heel. He hadn’t noticed any pain in his foot over the course of his shift, and testified that he had been focused on completing the job and wasn’t thinking about anything else. He reported his injury on Monday, since none of the supervisors were available over the weekend. The claimant requested treatment; however, he was advised that there was no response from workers’ compensation. He began treating on his own and was diagnosed with plantar fasciitis. The claimant was eventually sent to Dr. Byler by the employer, who opined that the plantar fasciitis was not work-related. He underwent an unauthorized endoscopic surgery to correct the plantar fasciitis. Dr. Berkin testified on behalf of the claimant opining that the plantar fasciitis was work-related. The ALJ found that the claimant failed to meet his burden to demonstrate that an injury by accident occurred. The claimant appealed.

The Commission found that the facts satisfied the criteria in the Statute regarding an accident. The claimant suffered an unexpected traumatic event or unusual strain (working on his feet for 13 hours). The accident was identifiable by time and place (June 27, 2009, at the employer’s premises). The claimant had objective symptoms (pain in the right foot) of any injury (plantar fasciitis) which was caused by a specific event (working on one’s feet for 13 hours) during a single work shift. Therefore, the claim was compensable.

The employer also argued that the claimant did not prove that his injuries arose out of and in the course of his employment because the hazard or risk that resulted in the claimant’s injuries was standing up after sitting down for 5 minutes, which was not a risk related to his employment. The Commission noted that it cannot view work place injuries in a vacuum so microscopically focused to ignore the reality of what actually happened to the claimant. The Commission found that the claimant’s injuries resulted from the risk of working a 13 hour shift on his feet. Furthermore, the Commission found no evidence that would support a finding that workers would have been equally exposed to that hazard or risk outside the employment in normal unemployment life. Therefore, the claimant’s injuries arose out of and in the course of his employment.

Claimant’s Job Duties as EMT Caused Injury to His Back and Shoulder By Occupational Disease

In Richard Yarbrough v. Rural Metro Ambulance, Injury No. 10-060138, the claimant worked as an EMT from 1992 until 2011. His job duties included responding to the scene of a medical emergency, assessing the patient, providing emergency assistance and transporting patients. The claimant averaged 3 - 4 emergency calls per day, and he and his partner would have to pull a stretcher weighing 81 - 87 pounds out of the ambulance and carry or roll the stretcher to the patient, and get the patient on the stretcher which involved significant physical strain. In 2002 the claimant underwent a lumbar laminectomy at L4-5 and L5-S1. He was released from care and returned to his normal job duties without restriction. In July 2010 he began to experience more severe pain in his right shoulder, right leg, right hip and low back. The claimant underwent authorized treatment for his right shoulder involving surgery and physical therapy for his low back. He was then sent to Dr. Colle for his back complaints. The doctor concluded the claimant’s back problems were not work-related.

The claimant had a report from Dr. Woiteshek, who diagnosed traumatic internal derangement of the right shoulder and traumatic right sciatica with an L4-5 herniation, which was related to the claimant’s job duties. The employer then obtained a report from Dr. Randolph, who opined that the claimant’s pre-existing degenerative conditions were the prevailing factor in his condition, not his job duties. The Commission found the opinion of Dr. Woiteshek more pervasive and concluded that the claimant’s conditions were work related and he was in need of additional treatment. However, the Commission did not agree with Dr. Woiteshek’s testimony that the claimant was unable to work after July 1, 2010. The Commission noted that even on cross-examination the doctor admitted that the evidence showed that the claimant continued to work for the employer up through March 2011. Therefore, the claimant was not entitled to TTD back to July 1, 2010.

Claimant's Deposition Testimony Could Not Be Used In Lieu of His Live Testimony

In Ruben Walker v. Bon Appetit Management, Injury No. 02-144836, the claimant’s case was set for numerous pre-hearings and mediations between 2005 and 2013. Notices were sent to the claimant but returned to the Division as “unable to forward.” The claimant’s case was set on the show cause docket on December 6, 2011, and the notice was again returned as “unable to forward.” The claimant’s attorney and the employer’s attorney appeared and since the claimant did not appear, the Judge dismissed the case with prejudice for failure to prosecute. The claimant’s attorney filed an Application for Review alleging the case was dismissed in error. The Commission set aside the Order of Dismissal and reinstated the claim finding no record was made at the show cause hearing, and the Commission did not have any evidence to review.

The case was set for a hearing on February 6, 2013, and the claimant did not appear. The claimant was deposed in 2007 and his deposition testimony was admitted into evidence without objection. The claimant’s attorney contended that his deposition testimony in lieu of his live testimony was sufficient to establish the elements of his case. The ALJ looked to Chapter 492 which allows a deposition to be admitted into evidence instead of live testimony if: the deponent is dead, if he is unable to give testimony by reason of mental incapacity, he was rendered incompetent, or if he was removed from the hearing. The ALJ noted that in the claimant’s case none of these instances were present; therefore the deposition could not be used instead of the claimant’s live testimony. Furthermore, the ALJ noted that the claimant’s deposition was taken in August 2007; therefore it was outdated and could not be relied on to establish the claimant’s current condition. Therefore, the deposition was not sufficient to establish any elements of his case and the case was dismissed for failure to prosecute.

Fall Down Step Not Compensable Because Not Hazard or Risk Related to Employment, Claimant Simply Missed Step

In Cathy Werner v. Madison Warehouse Corp., Injury No. 08-122998, the claimant fell down stairs at a restaurant while out of town. She testified that she was meeting co-workers at a restaurant to discuss the work to be done the next day because she and her co-workers were busy during the day. The dinner meeting was the only time available to discuss what needed to be done the next day. She explained dinner meetings were a frequent and regular aspect of her duties when she was working out of town for the employer. The ALJ denied the claim finding that the claimant did not sustain an accident during a single work shift.

The Commission agreed that the claim should be denied. However, it found that the claimant did in fact sustain an accident pursuant to Statute, but the claimant’s fall did not come from a hazard or risk unrelated to the employment. The Commission noted that the Courts have stated that a claimant must prove a causal connection to the work activity in order to prove that the injury arose out of and in the course of her employment. Here the claimant’s injuries resulted from the risk of descending a single step at a restaurant, while the claimant was out of town traveling for work. The claimant testified that she simply didn’t see the step and she fell. She did not identify any abnormally hazardous aspect of the step as contributing to her fall. The Commission noted she was certainly engaged in activities related to her work in that she was exiting a restaurant where she had gone for a business dinner. However, it is not enough that a claimant’s injury occurs while doing something related to or incidental to the claimant’s work. The Commission noted that absent any evidence suggesting that the step at the restaurant was an abnormal hazard or posed some particular danger to the claimant, there was no basis for a conclusion that the claimant’s work exposed her to a greater risk or hazard than she would otherwise face while descending a step in her normal non-employment life. Therefore the claimant’s injuries did not arise out of and in the course of her employment and the claim was denied. 

Beginning July 1, 2013, the maximum TTD/PTD rate will be $853.08 per week and the maximum PPD rate will be $446.85 per week. The mileage allowance for travel expenses will be 53.5 cents per mile.

 

 

               MISSOURI WORKERS' COMPENSATION

CASE LAW UPDATE

APRIL 2013 - JUNE 2013

　

LEGISLATIVE UPDATE

SB1 has passed the House and Senate and is awaiting the Governor's signature. Below are some of the major changes that will go into effect on January 1, 2014 if the Governor approves the Bill.

Employee:

"Employee" does not include any person performing services for board, lodging, aid or sustenance received from any religious, charitable or relief organization. §287.020.1

Occupational Disease:

Workers’ Compensation is the exclusive remedy for occupational diseases. §287.120.1 & .2

"Occupational diseases due to toxic exposure" include: mesothelioma, asbestos, berylliosis, coal workers pneumoconiosis, bronchiolitis obliterans, silicosis, silicotuberculosis, manganism, acute myelogenous, leukemia and myelodysplastic syndrome. §287.020.11

In cases of "occupational diseases due to toxic exposure" (but not including mesothelioma) which result in permanent and total disability or death, the claimant shall receive 200% of the state’s AWW for 200 weeks. Currently using the state’s AWW of $788.33, this would amount to $157,666.00. §287.200.4

Mesothelioma cases are treated differently. Employers can elect to accept or reject mesothelioma liability. Employers can elect to insure liability by qualifying as a self-insurer or by becoming a member of a group insurance pool. §287.200.4 A Missouri Mesothelimoa Risk Management Fund will also be created and any employer can participate in the Fund which uses funds collected by members to pay mesothelioma Awards made against any member of the Fund. Participation in the Fund has the same effect as becoming a member of a pool or a self-insured. §287.223

When mesothelioma results in permanent and total disability or death, ifthe employer has elected to accept mesothelioma liability, the claimant shall receive an additional amount of 300% of the state’s AWW for 212 weeks from the employer or the group of employers in which the employer is a member. Currently using the state’s AWW of $788.33, this would amount to $501,377.88. §287.200.4

If the employer has elected to reject mesothelioma liability, than Workers’ Compensation is not the employee’s exclusive remedy. In other words, the employee can move forward with his/her claim in civil court. §287.200.4

The benefits for "occupational diseases due to toxic exposure" must be exhausted before the regular PTD or death benefits are paid. §287.200.4

If the claimant dies before the benefits for "occupational diseases due to toxic exposure" are fully paid, the claimant’s spouse or children are entitled to the benefits. If the claimant has no spouse or children, the unpaid benefits go to the claimant’s estate. §287.200.4

The employer has no subrogation rights for any benefits that were paid for an "occupational disease due to toxic exposure" when the claimant or his/her dependents receive compensation from a third party claim. §287.150.7

Fund Responsibility:

There no longer will be PPD claims against the Fund. §287.220

PTD cases will be allowed where the prior injury(ies) amount to at least 50 weeks of PPD which is due to an active military disability, a prior workers’ compensation disability, any prior disability which directly and significantly aggravates or accelerates the work-related disability, or is a pre-existing disability to an extremity when there is a subsequent compensable work injury involving the opposite extremity. §287.220

When an employee is entitled to compensation from the Fund, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself. §287.220

The Fund is no longer liable for death benefits and medical bill benefits for an injured worker working for an illegally uninsured employer. §287.220

The Fund is no longer responsible for second job wage loss. §287.220

Surcharge:

There is a supplemental surcharge not to exceed 3% in the calendar years 2014 - 2021. The surcharges are for the sole source of payment for Second Injury Fund obligations. §287.715

Medical Fee Disputes

Medical providers are required to apply for reimbursement within 2 years from the date the first notice of disputed medical charges was received by the health care provider for services rendered before July 1, 2013 and within one year if services are rendered on or after that date. §287.140.4

EVIDENCE

 

One Medical Opinion Relating an Occupational Disease to a Job is Sufficient For Claim to be Found Compensable

Stephen Smith (deceased) v. Capital Region Medical Center, Case No. WD75078 (Mo. App. 2013)

FACTS: The claimant worked in the hospital from 1969 - 2006 as a lab technician. At one time the lab technicians pipetted blood samples using their mouths. The claimant testified that he once got blood in his mouth while doing so. Also, in 1970, he received a blood transfusion following a non work-related hunting accident. The claimant was diagnosed with Hepatitis C in December 1999, and ultimately died on February 27, 2007 of sepsis, Hepatitis C and acute tubular necrosis. Dr. Parmet, the claimant’s expert, opined that the claimant’s work was "clearly the largest risk factor and the most probable source" of his Hepatitis C, as well as the prevailing factor. Dr. Bacon, the employer’s expert, opined that the claimant likely contracted Hepatitis C when he had the blood transfusion in 1970.

The ALJ concluded that the claimant failed to prove that he contracted an occupationally induced disease, and therefore, his claim was denied. The Commission agreed because there was no evidence of any person with Hepatitis C treated in the employer’s facility while the claimant worked there. The Commission noted that the claimant worked at the employer for many years and it would seem that someone with Hepatitis C must have, at some point, treated at the hospital. However, the Commission could not speculate.

HOLDING: The Court reversed the Commission’s Decision and remanded the case back to the Commission. The Court noted that Courts have found that in an occupational disease case "a claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause. Even where the causes of a disease are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee." The Court further noted that Courts have found that the Statute does not require a claimant to establish, by a medical certainty, that his injury was caused by an occupational disease in order to be eligible for compensation. The Court found that Dr. Parmet’s opinion was sufficient evidence to meet the claimant’s burden on the issue of causation since he opined that the claimant’s work was the prevailing factor in him contracting Hepatitis C.

Claim Denied Because Claimant Not An Employee Nor Statutory Employee

Brito-Pacheco v. Tina Hair Salon, Case No. WD75062 (Mo. App. 2013)

FACTS: The claimant, a hairdresser, worked for the employer which was a hair salon owned by Tina Diaz, and she supplied a work station to the hair dressers. Ms. Diaz provided salon business cards to which hair dressers could add their name. The owner did not schedule appointments, limit or mandate work hours, provide employee benefits, pay taxes or mandate fees. The hair dressers would use the space provided and divide proceeds of compensation paid by the customers. The claimant was covering for another employee when he was shot and killed during a robbery at the salon. The ALJ noted there was no evidence to support Ms. Diaz had the right to control the claimant’s work. Therefore, the claimant was unable to sustain his burden of proof regarding the employer/employee relationship. The ALJ looked to whether the claimant was a statutory employee. The Courts have noted that the elements to establish statutory employment were whether the work done was under contract on or about the premises of the employer which was in the usual business of the employer. The ALJ found there was no evidence that the work of the claimant was pursuant to contract either written or verbal, and therefore, the employer was not the claimant’s statutory employer. Therefore, the Claim was denied. The Commission affirmed the decision of the ALJ.

HOLDING: The Court upheld the denial of benefits. The Court found that the Commission properly found that the stylist was not a statutory employee because his work was not performed in the usual course of the employer’s business, specifically because he was doing his own work rather than work of his employer. The Court noted that the employer simply provided him the facility.

 

Fund Has No Liability Because Claimant was PTD Prior to Last Work Injury

Schussler v. Treasurer of the State Custodian of the Second Injury Fund, Case No. WD74596 (Mo. App. 2012)

FACTS: The claimant worked for the employer from June 2006 through June 2008. In March 2008 she began to experience symptoms of bilateral carpal tunnel; she reported the carpal tunnel to the employer; and a week later she was terminated. She subsequently underwent two surgeries for carpal tunnel and was released to work without restrictions in April 2009. The employer and the claimant settled, and the claimant then went to a hearing against the Fund for PTD benefits.

It was noted that the claimant had an extensive history with respect to pre-existing conditions involving her knees, her cervical and lumbar spine, brittle type 1 diabetes, Hepatitis C, depression and post-traumatic stress disorder. Dr. Koprivica testified on behalf of the claimant opining that she was PTD as a result of her pre-existing conditions, as well as the 2008 carpal tunnel syndrome. He did note that she had "significant industrial disability" prior to her carpal tunnel syndrome. Ms. Titterington, a vocational expert, opined that she was not employable on the open labor market and further noted that she was unemployable "from all the restrictions that are in Dr. Koprivica’s report, even if the hand injuries were not considered." The ALJ found the claimant was not entitled to benefits from the Fund because she was PTD prior to the carpal tunnel injury. The Commission affirmed the decision of the ALJ.

HOLDING: The Court also found that the Fund was not liable for PTD benefits because the claimant was PTD prior to the carpal tunnel. The Court noted that the fact that the claimant maintained employment with the employer did not bar a finding that she was PTD. The Courts have made it clear that the Commission is not prevented from finding that the claimant is PTD simply because she holds limited, sporadic and/or highly accommodated employment. The Court noted that the test is whether the claimant could compete in the open labor market, and certainly the fact that the employer discharged the claimant almost immediately after learning of her carpal tunnel syndrome suggests that her employment was tenuous.

 

PROCEDURE

 

Appellate Court Only Has Jurisdiction to Review Commission’s Final Award, Not Temporary Award

 

 

Maria White v. Anderssen Mobile X-ray Service, Case No. ED98181 (Mo. App. 2012)

FACTS: The claimant was a staff technologist and her job duties involved taking x-rays at various locations throughout the metropolitan area. She drove the employer’s minivan containing the employer’s equipment, films and office paper. The gas and vehicle repairs were paid for by the employer. The claimant was to be in the office by 3:00 P.M. and was to call 30 minutes before her shift, or 2:30 P.M., to see if there were any assignments or she was to go directly to the employer’s office. The claimant called the dispatcher and was on her way to the office when she was in a motor vehicle accident which occurred at 3:10 P.M. In the Temporary Award, the ALJ found that this was not a case of a casual drive to work in which the claimant was driving from her home to the employer and concluded that the accident arose out of and in the course and scope of her employment. The Commission affirmed this Temporary Award noting that its Award was also Temporary.

HOLDING: The Court found that it was without jurisdiction to review the Commission’s Temporary Award. The Court noted that §287.495 only allows appellate review of a final award. The Court further noted that before the 2005 Amendments appellate courts created two exceptions allowing appellate review of a temporary award. The first was when the award was one of permanent total disability and the second was when the employer denies all liability. The Court acknowledged that the 2005 Amendments did not alter the Commission’s authority to enter temporary or partial awards or its appellate jurisdiction. However, the Amendments did change the construction of the Statute, to a strict construction.

The Court looked to a prior decision, Norman v. Phelps County Regional Med. Ctr.(Mo. App. 2008).In Norman, the Court did not apply the exception to the general rule that employers can appeal the temporary award of the Commission as long as the employer denied all liability. TheNorman Court found that application of the prior judicially-created exception would violate the clear legislative intent to limit appellate review to a final award from the Commission. Therefore, it determined that it lacked jurisdiction to review the Commission’s temporary or partial award. Here, in this case, the Court noted that the employer argued that the Commission’s Award was a final award, but it was not. The Commission designated its award in this case as a "Temporary Award," and expressly stated that the proceedings were continued and held open until a final award could be made. Therefore, since the Commission’s Award was not final, the Court could not review it.

Editor’s Note: The Court did not address whether the Commission has the right to review an ALJ’s Temporary Award.

Minor Dependents Entitled to Continuing PTD Benefits for Life (Applies only if Claim was pending from January 9, 2007 through June 26, 2008)

David Spradling (deceased) v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund Case No. SD31907 (Mo. App. 2013)

FACTS: The claimant alleged that in August or September 1998 he was injured while lifting pallets while working for the employer. He initially filed his Claim in September 1998, and several amended Claims thereafter. On November 30, 2005 the claimant passed away from causes unrelated to his work injury. At the time of the injury, the claimant had three minor children and there was no dispute that each of them were dependents. On October 27, 2008, the claimant’s dependents filed an amended Claim alleging they were entitled to the claimant’s continuing PTD benefits. The dependents settled their Claim against the employer and proceeded to a hearing against the Fund for PTD benefits.

The ALJ found that the claimant was PTD prior to his death, and that the Fund was liable for PTD benefits. The ALJ also found that the three dependents should receive his benefits continuing after his death for life. The Commission affirmed the Award of the ALJ.

HOLDING: The Fund appealed arguing that the minor dependents were only entitled to benefits until they attained the age of 18, at which time benefits ceased. The Court disagreed noting that dependent status is determined at the time of the injury, not the time of death and all three children were dependents at the time of the injury.

The Court then looked to whether the dependents were entitled to an Award of "lifetime workers’ compensation benefits." The Court noted thatSchoemehlapplies. Please note that the Schoemehl Court found that when an injured worker dies from causes unrelated to the work injury, the worker’s dependents become the "employee" for purposes of receiving PTD benefits. The Court further noted it has been held that surviving dependents are deemed to have the same rights as the employee under the Statute. As a result, the law in effect at the time of the claimant’s injury required compensation to be paid for PTD benefits not only over the lifetime of the claimant, but also over the lifetime of any of his surviving dependents. Therefore, the Court found that the Commission was correct in determining that the claimant’s dependents were entitled to receive PTD benefits for their lifetime, despite the fact that their entitlement to death benefits would, in most cases, cease when they reached the age of 18.

 

VA Entitled to Become a Party in a Workers’ Compensation Proceeding

United States Department of Veteran Affairs v. Karla O. Boresi, Case No. SC92541(Mo. S.Ct. 2013)

FACTS: The claimant alleged that on November 20, 2002 he sustained a work-related injury. He received care and treatment for that injury in the amount of $18,958.53 from the VA medical facility. It was undisputed that the employer did not authorize care at the VA facility. The VA filed a Motion in the claimant’s workers’ compensation proceeding asserting its right under 38 U.S.C § 1729 (2006) which allows it to intervene in an action or proceeding brought by the veteran against a third party to recover charges they have paid which were "incurred incident to the veteran’s employment and...covered under workers’ compensation law or plan." The ALJ overruled the VA’s Motion on the ground that she had no authority to permit the intervention. The VA filed a Petition in the Circuit Court again asking to be able to intervene in the workers’ compensation proceeding and after a hearing, the Court denied the VA’s Petition. The VA then appealed to the Court of Appeals, who transferred the case to the Supreme Court.

HOLDING: The Supreme Court found that although Missouri Workers’ Compensation Statutes do not allow the VA to intervene in the proceedings, 38 U.S.C § 1729 (2006), a federal law, does allow the VA to intervene. Pursuant to the Supremacy Clause of the United States, which states that federal laws are supreme, the VA had the right to intervene in the workers’ compensation proceeding, and therefore the Court directed the ALJ to allow the VA to intervene.

　

COMMISSION DECISIONS

Employer Found Responsible For PTD Benefits After Conservatively Treated Back Injury

In William Rook v. Bodine Aluminum and Treasurer of Missouri as the Custodian of the Second Injury Fund, Injury No. 07-041658,the claimant sustained a herniated disc at L4-5 on April 22, 2007. He treated conservatively with Dr. Coyle with injections and physical therapy and was then released from care. He subsequently saw Dr. Kuntz, an unauthorized physician, who recommended a 3-level fusion which the claimant did not undergo. However, the employer did send him back to Dr. Coyle who disagreed with Dr. Kuntz’s assessment and again placed the claimant at MMI. It was noted that he had extensive pre-existing injuries to his low back including a central disc protrusion at L4-5 and L5-S1 and he had been diagnosed with transverse myelitits and treated with traction therapy. It was further noted that the claimant was symptom free for three years prior to his injury. The ALJ opined that the claimant was PTD as a result of a combination of his pre-existing disabilities and the primary low back injury. The ALJ determined that the employer was liable for 40% PPD referable to the body, and the Fund was responsible for PTD benefits. The Fund filed a timely Application for Review alleging the employer rather than the Fund was liable for PTD benefits.

The Commission agreed with the Fund opining that the employer, not the Fund, was liable for PTD benefits. The Commission noted that the ALJ failed to consider the effects of the work injury in isolation before inquiring as to the claimant’s pre-existing conditions. The Commission noted that the claimant’s testimony showed that after his work injury he needed to lie down 5 - 6 times per day, which precluded him from competing in the open labor market. The claimant testified that this began after his work injury. Therefore, the Commission found that the employer, not the Fund, was liable for PTD benefits because the claimant was PTD due to the work injury alone.

Commission Can Only Double Benefits Awarded By ALJ and Unpaid By Employer

In Jennifer Thomas v. Forsyth Care Center, Injury No. 05-080783, the ALJ issued a Temporary or Partial Award ordering the employer to provide medical care, as may be authorized and directed by Dr. Cornelison, which is reasonable and necessary and causally related to the accident. Thereafter, the employer failed to pay for various treatments ordered by the doctor, despite the fact that the doctor made it clear in her records that she continued to make recommendations and was unable to obtain authorization from the employer. The claimant asked that the Commission double the amount of the TTD both paid and unpaid by the employer, the medical expenses paid by the employer, and the amount of PTD benefits owed from the date of the Final Award.

The Commission noted that the only discretion they have with respect to doubling any Award is when an ALJ orders benefits to be paid and then the employer does not pay them. Therefore, the Commission cannot double any amounts the employer paid to the claimant, nor can it double any amount that was not ordered by the ALJ. It is noted in this case that the ALJ did not order the employer to pay TTD or PTD benefits. The Commission noted that it would be inclined to order such a doubling in this case, however, they were unable to do so because the claimant failed to prove the value of medical expenses ordered by the ALJ and unpaid by the employer because the claimant did not put any of her medical bills into evidence to establish the dollar value of the medical treatments which she was unable to obtain due to the employer’s conduct. Therefore, the Commission affirmed the ALJ’s Decision in not doubling any part of the Award. The Commission did go on to condemn the employer's refusal to comply with the ALJ’s Temporary Award, and noted that the employer offered no explanation for refusing to authorize any treatments recommended by the doctor.

Editor's Note: Please note that pursuant to previous Commission decisions, the ALJ cannot direct the employer to authorize treatment with a specific physician, as the employer has the right to choose the physician. However, the employer in this case did not make that argument, as the Commission noted that it was silent on why it refused any recommended treatment.

Claimant on Job Site Walking to Truck and Tripping Over Pile of Dirt Found Compensable

In Milton Young v. Boone Electric Cooperative, Injury No. 08-123324,the claimant was on a job site walking to his bucket truck to get materials for the job when he stepped on frozen dirt and his left knee buckled and popped, causing him to fall down. Other crew members helped him to his feet, at which time he experienced another pop in his left knee. The ALJ found that the claimant sustained a left knee sprain arising out of and in the course of his employment on January 4, 2008. The employer appealed arguing that the claimant did not sustain an unexpected traumatic event or unusual strain and also that the claimant was equally exposed to that risk or hazard in his normal non-employment life. Therefore, his accident did not occur in the course and scope of his employment.

The Commission found that this was an "unexpected traumatic event or an unusual strain" as the claimant testified credibly that he tripped on a pile of dirt and fell, which would qualify as a traumatic event. The employer argued that the injury was not compensable because he was merely walking to his truck. However, the Commission noted that the claimant was not merely walking to his truck, but instead fell because he stepped on a pile of frozen dirt. The Commission found that the record did not contain substantial and competent evidence to support a finding that the claimant was equally exposed to the risk of stepping on a pile frozen dirt and falling in his normal non-employment life. Therefore, the claimant’s left knee injury arose out of and in the course of his employment and his injury was compensable.

Claimant PTD Due to Work Injury and Prior Shoulder Injury

In Daneen Pennington v. Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 10-020750, the claimant sustained an injury to her back lifting a box of paper. She treated conservatively and eventually underwent surgery with Dr. Ciccarelli. She was then released from care with permanent restrictions of no lifting over 25 pounds, and she settled her claim against the employer for 22.5% of the body. The claimant then proceeded to a hearing against the Fund for PTD benefits. The ALJ denied the claimant’s claim against the Fund concluding that the claimant was PTD due to the work injury alone.

The Commission disagreed and found that the claimant was PTD as a result of her work injury and her pre-existing disability, specifically a prior shoulder injury. The Commission noted that the ALJ determined that after her prior shoulder injury the doctor released her from his care without any restrictions. However, the Commission noted that this was not quite accurate, and it was clear from the doctor’s final report that the claimant was still having problems with her shoulder and although she did not have any specific restrictions, she was to limit her activities to those that she could tolerate. The Commission further noted that the claimant testified that her shoulder had continued to bother her after she was released from care. Also, the Commission disagreed with the ALJ’s finding that the expert opinions of Michael Dreiling, who found that the claimant was PTD as a result of her work injury and her pre-existing shoulder disability, and the opinion of Dr. Stuckmeyer, who noted that the claimant’s shoulder condition was a hindrance to her employment, were not credible. The Commission reversed the Award of the ALJ and opined that the claimant was PTD and entitled to benefits from the Fund.

Employer Not Entitled to Reduction in Benefits for Drug Violation

In Tyler Kelsey v. Loy Lange Box Company, Injury No. 08-114802,the claimant sustained an injury to his left upper extremity on December 30, 2008. Dr. Goldfarb performed two surgeries and released the claimant from treatment in August 2009. The employer alleged a 50% reduction in all three benefits because the claimant's drug test on his day of injury was positive which was in violation of the employer's drug policy. The Employer’s Alcohol and Drug Policy provided in part that employees shall not use prohibited drugs while on the job or on company property. Also, employees are not allowed to work while under the influence of illegal drugs. The policy ends by stating that the Employer will not tolerate use on the premises or allow employees to work while under the influence of drugs.

At the hearing, the drug test was admitted into evidence and both parties had expert testimony. It was noted that the claimant’s drug test was positive for marijuana metabolite, carboxy-THC, which lasts in the body for an average of 3 days after smoking or ingesting marijuana. However, the test showed that THC, marijuana’s active ingredient that causes the physical effects or altered sensation, was no longer in the claimant’s system.

The ALJ found that the claimant did not violate the employer’s drug policy because he was not impaired at the time of this injury. The ALJ noted that the experts agreed that the claimant had smoked or ingested marijuana before the injury, and noted that it was difficult to pinpoint the exact time of usage. The experts further agreed that there was no evidence suggesting the claimant was physically impaired at the time of the accident, and even if the claimant had smoked marijuana right before he left for work, he would not have been suffering an impairment or physical effect at the time of the accident, which was four hours into his shift. Also, the medical records revealed no suspicion on the part of the staff at the hospital that the claimant was impaired by any drug. Therefore, the employer was not entitled to a reduction in benefits. The Commission affirmed the decision of the ALJ.

Editor’s note: Please note it appears that this decision relied on the employer’s policy which didn’t state that the employer is a "drug free" work place. It simply noted that employees can not use drugs on the premises or be under the influence.

　

Claimant Sustained Accident However No Disability Since Treating With Injections Weeks Prior to Injury

In Lester Taylor v. Penmac Personnel Services, Inc., v. Ace American Insurance Company, Injury No. 08-089380,the claimant was riding on a bus driven by a co-worker, at which time the co-worker made a turn, cutting the corner too tightly which caused the bus to travel into a ditch. The claimant fell out of his seat and onto the floor, and the co-worker continued to proceed uninterrupted to the destination. Upon arrival, the claimant got off the bus and expressed concern that his feet had become numb and he was experiencing pain in his low back. It was noted the claimant had a multitude of prior medical conditions including prior injuries to his lower back. In fact, the claimant had received epidural injections just 6 weeks before this incident. Both medical experts agreed that there were no acute findings on the MRI. The claimant's expert also admitted that the claimant was given the same restrictions after the work injury as he had prior to the injury. The employer's expert opined that the claimant did not sustain any permanent disability as a result of the work injury.

The ALJ found that the claimant did sustain an accident which caused him to sustain a soft tissue injury to his lumbar spine. However, the ALJ noted that it was significant that the claimant was treating and had undergone epidural steroid injections in his low back a month and a half prior to the injury. Also, according to the expert testimony, there was no change in pathology between an MRI which was performed before the work injury, and the MRI that was performed after the work injury. Furthermore, the claimant’s symptoms prior to and after the injury were essentially the same. Therefore, the ALJ found that the claimant did not sustain any permanent disability as a result of the work injury. The Commission affirmed the Award of the ALJ.

The ALJ found that the claimant was an employee. She noted that although the MMA fights only occurred a few times a year, the evidence indicated that the employer regularly conducted special events. The Judge did note that while the claimant was called to work because he possessed knowledge necessary to customize lighting, she found that this was not an occupation that required special skills. The Judge also found there was no evidence that the employer would have allowed the claimant to hire assistants or substitutes. Furthermore, the employer had the right to hire, discharge and determine the claimant's pay. The employer also owned all of the equipment including the lights, microphones and computers. The Judge also noted that the claimant was paid by the hour, which was indicative of an employment relationship. The ALJ also found that there was a continued relationship since the employer regularly called the claimant to perform these services, despite the fact that he only worked five separate occasions. The Judge did note that the details of the work were controlled by the claimant suggesting independent contractor status. The Judge also noted that the claimant was paid by a 1099 which would also suggest independent contractor status. However, after reviewing all of the evidence in the record, the Judge noted that the weight of the evidence supported that the claimant was an employee. The Commission affirmed.

 

No Evidence for ALJ's Award of TTD and ALJ May Order a Change in Provider But Cannot Direct

Employer to Use Specific Provider

 

In Lisa Bush v. West Chester House, Injury No. 10-109482, the ALJ issued a Temporary or Partial Award in which he opined that the claimant was entitled to 6 weeks of TTD benefits as a result of a carpal tunnel release which was performed on November 12, 2010. The ALJ based his Award on Dr. Crandall's testimony that a surgery such as the one performed on the claimant generally requires 6 weeks of recovery. The Commission noted that there was no testimony in the record regarding the claimant's ability to compete in the open labor market or the total amount of time she missed from work due to her surgery. Therefore, the claimant failed to meet her burden of proving her entitlement to 6 weeks of TTD benefits awarded by the ALJ.

 

The Commission also addressed the ALJ's decision to award treatment with a specific physician. The ALJ ordered a change in provider to Dr. Glogovac. The Commission first noted that the claimant did not prove that the employer waived its right to direct her medical treatment, and the ALJ did not even make that finding in his Award. Second, the claimant failed to prove that her health and recovery had been endangered by the medical treatment provided by the employer. Furthermore, the Commission noted that even if the claimant met this burden, the only relief provided under the statute was that the Division or Commission may order a changein physician, surgeon, hospital or other requirement. The statute does not authorize the Division or Commission to appoint a specific doctor to provide the claimant's medical treatment. Therefore, the Commission found that the ALJ erred in ordering the claimant's medical treatment to be provided specifically by Dr. Glogovac.

In Sheryl Berend v. Fasco Industries Inc., Injury No. 05-142895,the ALJ denied the claimant's left shoulder repetitive motion and bilateral upper extremity repetitive motion claims for lack of notice because the claimant did not provide notice to the employer within 30 days. The Commission noted that the claimant has to report an injury resulting from an accident within 30 days. However, in the context of an injury resulting from an occupational disease, the triggering event is the "diagnosis of the condition." The Courts have defined this to be when a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. The Commission found that none of the claimant's treating physicians identified a causal connection between the claimant's work and her bilateral upper extremity problems. The Commission further found that on November 17, 2008, Dr. Volarich was the first diagnostician to make the causal connection between the claimant's underlying medical condition and her work-related activity or exposure. Therefore, this is when the 30 day notice period began to run. Since the claimant filed her claim on August 10, 2006, more than 2 years prior to the date Dr. Volarich issued his report, her claim was not barred.

 

 

 

The owner of ABC testified that Mr. Atchley did not talk to him about the claimant's accident. It was also noted that ABC did not make any payments on his claim. The claimant filed an original Claim against ABC Roofing & Contracting (not the correct employer) on February 27, 2009. He filed an amended Claim on December 20, 2010, listing ABC Seamless Siding & Windows. The Statute of Limitations begins to run after the last payment was made on the claim, and in this case no payments were made on the June 21, 2007 injury by the direct employer, Mr. Atchley, or the statutory employer, ABC. Since a Report of Injury was not filed, the applicable three year Statute of Limitations began to run on the claimant's date of injury. Therefore, the claimant had until June 22, 2010 to file his claim. The Commission agreed with the ALJ and found that because ABC did not become a party to this case until December 20, 2010, the claimant did not file a timely claim against the statutory employer and his claim was denied. 

 

MISSOURI WORKERS' COMPENSATION CASE

LAW UPDATE

APRIL 2012-JUNE 2012

Injury on Parking Lot Found in the Course and Scope of Employment and Compensable

Joseph Duever v. All Outdoors, Inc. and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED97596 (Mo. App. E.D. 2012)

FACTS: The claimant was the owner/operator of a landscaping business. During the winter months, the employer provided customers with services such as snow and ice removal. In addition to running the business, the claimant performed manual labor along with his employees. The employer leased a warehouse from Scott Properties and the lease included access to a parking lot and the specific use of four parking spaces. In the lease terms, Scott Properties was responsible for ice and snow removal from the parking lot. The claimant held a safety meeting with his employees in the parking lot. After the meeting, the claimant was walking back to the shop when he slipped on a patch of ice, falling and hitting his left shoulder.

The claimant kept his scheduled appointment the following day with his endocrinologist, Dr. Oikine, for treatment of his diabetes. In the doctor's notes, there is no mention of the accident. The claimant then saw an orthopedist, Dr. Thomas, three weeks later, who ordered an MRI which revealed tears of the tendons. The claimant underwent surgery. The claimant filed a Claim and the ALJ determined the claimant's work was the prevailing factor in causing his left shoulder injury. The Commission affirmed the ALJ's Award and Decision.

HOLDING: The employer argued that the accident did not arise out of and in the course of the claimant's employment because the risk involved, walking on an ice covered parking lot, is one that the claimant would have been equally exposed to in daily life, and therefore, his injury was not compensable. The Court found that the claimant was in an unsafe location, an icy parking lot, instructing his employees on the importance of safety. The claimant sustained an injury due to an unsafe condition over which he had no control, given that the owner of the parking lot had hired another company to remove ice on the lot. The Court further noted that the claimant sustained an injury on the job, and therefore, the claimant's injury was compensable.

Claim Denied because Claimant Failed to Prove He Sustained an Accident

Arsenio Arciga v. AT&T, Case No. WD74226 (Mo. App. W.D. 2012)

FACTS: The claimant worked as a systems technician for AT&T. On February 23, 2010, the claimant's supervisor instructed him to travel to a nearby location where a company truck driven by a co-worker, Shane Curphey, had become stuck in mud. According to the claimant, when he arrived at the location he got behind the truck and attempted to lift and push the back of the truck out of the mud while Mr. Curphey pressed on the accelerator in an effort to move the truck. The claimant alleged that he injured both shoulders at that time.

The claimant admitted that he did not immediately notify his employer about the incident, and he continued to perform his regular job duties which resulted in an ongoing worsening of his shoulder symptoms. In mid March, the claimant talked with his supervisor about his shoulder discomfort but never said anything about how he hurt his shoulders. The claimant's supervisor advised him to see a chiropractor. When the claimant presented to the chiropractor, he did not say anything about the incident with the truck. The claimant asked his supervisor if he could file a Claim, the supervisor asked for what incident, and the claimant said that he was not sure. A few days later, the claimant then advised that he wanted to file a claim for the incident when he was helping his co-worker get the truck out of the mud.

Shane Curphey, the claimant's co-worker, testified that he could not recall any time the claimant was  behind the truck. Mr. Curphey noted that the truck was very deep in the mud, and therefore, it would seem silly to do that. Mr. Curphey also said that he thought the claimant was clean when he left, and noted that if a person had been behind the truck while he revved his tires, he would have been completely drenched with mud. The ALJ found that the claimant failed to meet his burden of proving that he sustained an injury on February 23, 2010. The Commission affirmed the ALJ's Decision.

HOLDING: The claimant argued that because Mr. Curphey testified he did not recall the claimant pushing or attempting to lift his truck out of the mud, Mr. Curphey's testimony did not contradict his. Therefore, the Commission's conclusion that he did not push or attempt to lift the vehicle from behind is without any substantial or competent support in the record. The Court noted that Mr. Curphey stated on cross-examination that he didn't recall the claimant behind the truck, however, he stated that if a person had been behind the truck, that person would have been completely drenched with mud and water and he did not remember the claimant being muddy. Therefore, the Court found the competent and substantial evidence supports the Commission's conclusion that the claimant failed to prove that he suffered an accident arising out of his employment.

ALJ Does Not Have to Find that Claimant is Lying to Find Testimony Not Credible

Weldon Poarch v. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Case No. WD74219 (Mo. App. W.D. 2012)

FACTS: The claimant performed work for the employer's rental properties, and alleged that on April 26, 2006, he inhaled muriatic acid while spraying an apartment. Seven to ten days later, the claimant believed that he was having a heart attack as a result of his exposure. However, he did not seek medical treatment, and therefore there was no evidence that the he actually had a heart attack. He did have heart attacks two years later in 2008 and 2009. The claimant also didn't present any evidence that the spray he had used was muriatic acid.

The only evidence the claimant presented was the testimony of Dr. Parmet, who stated that the claimant told him that he had been exposed to muriatic acid, and the doctor noted that this exposure was the prevailing factor in causing disability to the claimant's heart and provided a rating of 20% PPD of the body. The ALJ found that the claimant did not prove that he sustained a compensable injury and denied the claim. The Commission affirmed the ALJ's decision.

HOLDING: The Court noted that the claimant's entire argument was premised on his assertion that the Commission never found that he was not credible. The Court noted that the ALJ found that the claimant's whole case was based on his uneducated self-diagnosis that he had a heart attack, but there was no medical evidence to support that diagnosis.  Also, the claimant made the determination that he was exposed to muriatic acid, however, this substance was never tested and therefore there was no proof that the claimant was in fact exposed to it. In light of the fact that the claimant did not have any evidence to support his testimony that he was exposed to muriatic acid which caused a heart attack, the ALJ did not find his testimony credible. The Court noted that in order for an ALJ to find that a claimant is not credible, he does not have to find that the claimant was intentionally fabricating testimony. The Court noted that credibility involves more than the witness' own subjective belief. Therefore, the Court affirmed the Commission's Decision that the claimant did not meet his burden of proving that he sustained a compensable injury.

Court Looked to Claimant's Statements or Lack Thereof to Determine Permanency

Shawn Claspill v. Fed Ex Freight East, and Treasurer of the State of Missouri,  Custodian of the Second Injury Fund, Case No. SD 31346 (Mo. App. S.D. 2012)

FACTS: On July 28, 2006 the claimant fell from a fork lift, injuring his lower back. He did not seek immediate medical treatment, nor did he immediately report the injury to his supervisor. Shortly thereafter he treated on a few occasions with his primary care physician and did not mention a work injury. He also presented to the emergency room a week after his injury at which time he didn't report a work injury. The claimant eventually reported his injury and was sent to Concentra by the employer, and was diagnosed with a contusion of the buttocks. The claimant also continued to follow-up with his primary care physician. It was noted the claimant had a prior history of back problems.

The ALJ found that the claimant did sustain an accident when he fell from the fork lift. However, the ALJ found that he only sustained a contusion-type injury to his back and the fall was not the prevailing factor in causing the claimant's current pain and condition, for which he was treating. Therefore, the employer was not liable for any past or future medical treatment. The Commission affirmed the ALJ.

HOLDING: The Court noted that the Commission pointed out numerous contradictions in the claimant's testimony and the history presented by the claimant in the medical records. The Commission found that the claimant went to the doctor three times after his alleged fall from the fork lift, and did not mention this work accident. Furthermore, the claimant's personal physician noted that only a week and a half after his accident, the claimant reported he was pretty much back to normal. The Court found the Commission had ample substantial and competent evidence to find that the claimant sustained 10% PPD as a result of the fall off of the fork lift, and that the employer was not responsible for any past or future medical care.

Claim Denied Because Injury Flowed as Natural Consequence of Prior Injury Which Had Been Settled

Lisa Meinczinger v. Harrah's Casino, Case No. ED97415 (Mo. App. E.D. 2012)

FACTS: On August 12, 2002, the claimant tripped over a manhole cover at the employer and injured her left knee. She was terminated in 2003. The claimant filed a claim for the August 12, 2002 injury to her left knee. Then, on July 16, 2008, the claimant filed another claim reporting an injury to her right knee and left hip in August 2007. She alleged the same incident, that she fell over a raised manhole sustaining injuries to her left lower extremity and because of the injury to her left knee, the claimant compensated by placing stress on her right knee and left hip, causing injury to the same. She reported that the accident took place at the employer's place of business. On October 29, 2008, the claimant, employer and insurer entered into a Stipulations for Compromise Settlement, for the 2002 injury.

On May 5, 2009, the claimant filed an amended Claim for the August 2007 injury to her right knee and left hip, reporting that she sustained an injury at the physical therapy center, while receiving physical therapy for a work-related injury to her knee. The ALJ denied benefits for the 2007 injury, noting that the claimant sustained this injury in the course of her physical therapy treatment for the 2002 injury, and she testified to the same during her deposition. The ALJ concluded that the claimant's August 2007 injury flowed from her August 2002 injury, which was settled in October 2008. Therefore, the Division no longer had jurisdiction over the 2002 injury or settlement. The Commission affirmed the ALJ.

HOLDING: The Commission did not err in denying benefits based on lack of jurisdiction because the claimant sought benefits for an injury that flowed as a natural consequence of an earlier work injury and the parties had entered a settlement that closed out all claims from the prior injury.

Employer Not Liable to Replace Prosthesis

Herbert Robbins v. Web Co, Inc., Case No. SD31607 (Mo. App. S.D. 2012)

FACTS: The claimant lost his lower right leg to cancer at age 19. He went through 3 or 4 prostheses before working for employer. In January 2004, at a prior job, his knee frame shattered during heavy lifting and he got a replacement, which was enough to support his body weight plus nearly 140 pounds. The employer hired the claimant in 2006, and he carried material which weighed less than 50 pounds to his work station, up to 30 times daily. In June 2008, his knee unit's hydraulic pump failed, and he sought to obtain one through workers'compensation. It was not disputed that the wear and tear from use caused this failure, and expert testimony established that the prosthesis should have lasted about 4 years, and therefore, it had reached the end of its life span. The ALJ found that the failure was due to wear and tear not associated with a particular event, and work was not the prevailing factor in causing this wear and tear. The Commission affirmed the Decision of the ALJ.

HOLDING:  The Court held that the employer did not have to replace the claimant's prosthesis because the claimant did not prove that his work activities were the prevailing factor in the need for a new prosthesis.

Falling Off Shoe While At Work Not Compensable

Sandy Johme v. St. John's Mercy Healthcare, Case No. SC92113 (Mo. S.Ct. 2012)

FACTS: The claimant was a billing representative and sustained an injury while making coffee. It was noted that it was customary in the office that the employee who took the last cup of coffee, would make another pot. While making coffee, employees remained clocked in. On the day of the injury, the claimant was wearing sandals with a thick heel and flat bottom. There were no irregularities or hazards on the kitchen floor. The medical records from the emergency room indicated that the claimant reported that she had tripped at work because of the shoes she was wearing. The ALJ denied her claim because she was not performing her work duties at the time of her fall. She simply fell and would have been exposed to the same hazard or risks in her normal, non-employment life.

The Commission reversed the ALJ's Decision, noting that the coffee in the office kitchen was provided by the employer for use by its employees, the employees were not required to clock out before getting coffee and it was customary for the employee who took the last cup of coffee to make a new pot. The Commission also noted that the claimant testified that she did not make coffee at home. The Commission found that the claimant's injury was compensable after applying the Personal Comfort Doctrine, because the act of making coffee was incidental and related to her employment. Therefore, it found that it did not need to determine whether the claimant would have been equally exposed to the hazard or risk that caused her injury during her normal non-employment life.

HOLDING: The Court noted that for the claimant's injury to be deemed to arise out of and in the course of her employment, the claimant must show a causal connection between the injury and the claimant's work activities.

The Court looked to Miller, wherein the claimant's knee popped and began to hurt while he was walking briskly toward his truck, which contained repair material that was needed for his job as a road crew member. In Miller, the Court determined that the claimant's injury was not compensable because the uncontested facts showed that his knee pop injury occurred at work, in the course of his employment, but that it did not arise out of the employment. The Court noted that an injury will not be deemed to arise out of the employment if it merely happened to occur while working, but work was not a prevailing factor in the risk involved. In Miller, the risk was walking which he would have been equally exposed to in non-employment life. The Court noted that nothing about his work caused his knee to pop. Therefore, the injury arose during the course of his employment but did not arise out of the employment. The Court noted that the Miller holding is controlling.

The Court noted that the Commission erred in focusing its assessment on whether the claimant's activity of making coffee was incidental to her employment. Instead, the Court noted that the issue in the case was whether the cause of her injury, falling off her shoe, was connected to her work activity, other than the fact that it occurred in her office kitchen while she was making coffee. The Court noted that the ALJ and Commission should have considered whether her risk of injury, falling off her shoe, was a risk to which she would have been equally exposed to in her non-employment life. The Court noted there was no evidence showing that the claimant was not equally exposed to falling off her shoe while at work and outside of work in her normal non-employment life. Therefore, the Court found that she did not show that her injury was caused by a risk related to her employment that she would not have been equally exposed to in her normal non-employment life. As such, her claim was not compensable.

Stipulations by Parties at Hearing are Controlling and Conclusive

Michael Hutson v.Treasurer of Missouri as Custodian of Second Injury Fund, Case No. ED97321 (Mo. App. E.D. 2012)

FACTS: In 2003, the claimant injured his low back while working for the employer. The claimant also had a prior injury in 1999 while working for a prior employer, which he settled for 15% PPD of the right shoulder. The claimant settled his 2003 back injury with the employer and proceeded to a hearing against the SIF. At the hearing, the claimant and the SIF stipulated to several facts, including that the claimant agreed not to pursue PTD benefits against the SIF, and, in exchange, the SIF agreed not to contest the synergistic combination of the injuries. At the hearing, the ALJ determined that the claimant's testimony regarding his pre-existing shoulder injury was not credible and that his pre-existing disability from this injury was at most 10%. Therefore, it did not meet the threshold percentage to trigger SIF liability, and the ALJ denied the claimant benefits. The Commission affirmed the ALJ noting that the claimant had not presented evidence showing that the disability resulting from his current injury had combined with his pre-existing shoulder disability to produce a greater disability.

HOLDING: The Court noted that the issue in this matter was whether the SIF's agreement "not to contest" the synergistic combination of the claimant's injuries relieved the claimant of his burden to present evidence showing a synergistic combination. The claimant argued that because of the parties' stipulation, the Commission wrongly concluded the claimant failed to produce sufficient evidence to show his pre-existing disability synergistically combined with his current disability. The Court agreed.

The Court noted that the rules of the Department of Labor & Industrial Relations which cover workers' compensation hearings, state that prior to the hearing the parties shall stipulate to uncontested facts and present evidence only on contested issues, such stipulations are controlling and conclusive, and the courts are bound to enforce them. Therefore, the Court found that the synergistic combination of the claimant's disabilities was not a contested fact at the hearing, and therefore, the Commission was without power to conclude the claimant was required to put forth evidence of such combination in order to be entitled relief.

Claimant Found Credible Therefore Statute of Limitations was 3 Years

Howard Moreland v. Eagle Picher Technologies, LLC, Case No. SD31692 (Mo. App. S.D. 2012)

FACTS: The claimant worked for the employer, who was involved in the manufacturing of batteries, fertilizer and boron, from 1984 through 1994. The claimant worked in departments which manufactured nickel cadmium and nickel hydrogen for battery cells. The claimant first became ill in the summer of 2005. On July 29, 2005, the claimant called his supervisor when he received his diagnosis of multiple myelomas and advised that the cause of his disease was exposure to chemicals with the employer. The supervisor testified that the claimant did advise him of his diagnosis, however, he did not recall the claimant telling him that his diagnosis was related to his work with the employer. The employer did not file a Report of Injury until after the claimant filed his original claim on December 17, 2007. The ALJ awarded the claimant unpaid medical expenses and PTD benefits. The Commission affirmed the ALJ's Award.

HOLDING:  The employer argued that the claimant did not timely file a claim because the stated date of injury was July 29, 2005, however, the claimant did not file a claim until December 17, 2007, which is not within the two year statutorily mandated time period. The Court noted that the Statute of Limitations in this case was three years because the employer failed to file a timely Report of Injury after the claimant notified the employer of a potential work-related occupational disease. The Court noted that the Commission found that the claimant's testimony was credible in that he advised the employer on July 29, 2005 that he was diagnosed with multiple myelomas and his disease was caused by his exposure to chemicals at the employer. Therefore, the Commission found that the employer had notice and had 30 days from July 29, 2005 to file a timely Report of Injury, which it did not do. Therefore, the Statute of Limitations was three years.

Award Against Insured Employer Does Not Bar Claim Against Second Uninsured Employer In Civil Court

Stacey Lewis & McCartney M.E. Lewis, a minor, by and through their next friend, Burle Brown and DOT Transportation v. Nathan Gilmore and Buddy Freeman, Case No. SC91834 (Mo. S.Ct. 2012)

FACTS: The claimant died when a tractor trailer in which he was a passenger overturned. The driver, Nathan Gilmore, was driving the tractor trailer in the course of his employment with Buddy Freeman. Freeman operated his company pursuant to a contract with DOT Transportation. Freeman did not carried workers'compensation insurance, however, DOT did. The claimant's dependents filed a claim for workers' compensation against both Freeman and DOT. The dependents also filed a wrongful death action against Freeman and Gilmore.

The Circuit Court stayed the wrongful death action until an ALJ decided if the claimant's death occurred out of, and in the scope of, his employment. An ALJ entered an Award in favor of the claimant's dependents. The ALJ found that the claimant was an employee of Freeman, but Freeman did not carry workers' compensation insurance even though he legally was required to do so. The ALJ determined that DOT was the claimant's statutory employer and ordered DOT to pay death and funeral benefits. After the Workers' Compensation Award, DOT intervened in the wrongful death action. The Circuit Court granted summary judgement in favor of Freeman, finding that the wrongful death action was barred because the claimant's dependents had made an election of remedies when they obtained a Workers' Compensation Award against DOT.

HOLDING: The claimant's dependents asserted that under Workers' Compensation they were allowed to proceed in a civil action against Freeman since he failed to have workers' compensation insurance, even though they obtained a Workers' Compensation Award against DOT. The Court noted that under workers' compensation law if an employer does not have insurance the claimant has three options: file a civil action against the employer, pursue a workers' compensation claim or seek payment from the SIF.  The Court noted it was undisputed that Freeman and DOT were separate entities and that each had the responsibility to secure workers' compensation insurance. Under the Statute, the fact that DOT complied with the statute, and therefore was deemed to be the only statutory employer, does not excuse Freeman from his obligation to carry workers' compensation insurance. Therefore, the civil action against Freeman was not barred by their Workers' Compensation Award from DOT. The Court concluded that because the claimant essentially had two employers, obtaining a Workers' Compensation Award from one of them and a potential civil judgement from the other would not be a double recovery because any recovery by the claimants would be subject to DOT's subrogation rights.

COMMISSION DECISIONS

Old Law 

Claimant Could Medically Return to Work Therefore No TTD Owed

In Scott Curran v. Johnson Controls, Inc., Injury No. 02-016564, the claimant complained to his plant manager that his shoulder hurt and needed to take pain medicine. Since he was not supposed to work on pain medicine he needed to leave work. He was allowed to leave and he was instructed to provide a note from a medical professional noting that he had to leave work that day, February 3, 2004. The next day the claimant saw Dr. Middleton, who wrote a note saying that the claimant was having headaches which were related to the myofascial pain related to his work injury. When the claimant presented a slip to the employer on two different occasions, he refused to allow the claimant to return to work. The employer's rationale for refusing to let the claimant return to work was that he did not provide documentation that he had to leave work on February 3, 2004 for his work injury. The ALJ denied the claimant's claim for past TTD benefits. The Commission found that the claimant was not permitted to return to work because of separate and distinct labor and management issues. Also, there was no evidence that the claimant was unable to work or that the employer refused to allow him to return to work due to a medical condition. Therefore, the Commission agreed with the ALJ and denied the claimant's claim for past TTD benefits.

Claimant Was Prevailing Party and Entitled to Reasonable Cost of Recovery for Hardship Hearing

In Melissa Donnell v. Trans States Airlines, Injury No. 02-143782, the claimant requested a hardship hearing when the employer denied her request to have ankle surgery, arguing she was at MMI with respect to the work injury. The ALJ issued a Temporary Award ordering the employer to pay for the surgery and resume TTD benefits. Pursuant to the Statute, the claimant argued she was the prevailing party, and therefore, she was entitled to reasonable costs of recovery in the amount that was expended for the hardship hearing. The employer argued the claimant really didn't "prevail" because the ALJ did not address the issue of past TTD benefits. The Commission noted that when the ALJ addressed the issue in his Final Award, he ultimately ruled this issue in the claimant's favor. The Commission noted that the ALJ did not say in his Award why he deferred the issue of TTD benefits to the final hearing, but there was no suggestion that it was the result of any failure of proof on the claimant's part. Therefore, the Commission found that the claimant was the prevailing party and was entitled to reasonable costs of recovery.

Claimant Rushed to ER Which Was Date of Disability Therefore Date of Injury

In Stephen Smith (deceased) v. Capital Region Medical Center, Injury No. 05-140833, the employee worked in the hospital from 1969 - 2006 as a lab technician. At one time the lab technicians pipetted blood samples using their mouths. The claimant testified that he once got blood in his mouth while doing so. Also, in 1970, the claimant received a six unit blood transfusion following a non-work related hunting accident. The claimant was diagnosed with Hepatitis C in December 1999 and ultimately died on February 27, 2007 of sepsis, Hepatitis C and acute tubular necrosis.

The employer argued that the 2005 Amendments were applicable to the claim because the claimant was able to work up until March 2006, and therefore he would have to prove that his work was the prevailing factor in causing his disease. The claimant argued that the appropriate date of injury was April 20, 2005 which is when he was rushed to the emergency room when he suffered a cognitive breakdown caused by hepatic encephalopathy. The ALJ agreed with the claimant and believed the 2005 Amendments did not apply, and therefore the claimant only had to prove by substantial and competent evidence, that he contracted an occupationally induced disease. The Commission also believed that the 2005 Amendments did not apply because review of case law revealed that courts have consistently linked the date of injury to the date the disease first becomes "compensable" which typically has been interpreted to mean the date a claimant first experiences some disability or loss of earning capacity from the disease. The Commission believed that he first experienced some disability related to the injury when he suffered a cognitive breakdown on April 20, 2005 and was hospitalized.

Even using the lesser standard of substantial and competent evidence, the ALJ concluded that the claimant failed to prove that he contracted an occupationally induced disease, and therefore the claim was denied. The Commission was also convinced that the claimant failed to meet his burden because there was no evidence that any person with Hepatitis C treated in the employer's facility while the claimant worked there. The Commission did note that the claimant worked at the employer for many years, and it would seem that someone with Hepatitis C must have at some point treated at the hospital, however, the Commission could not speculate. Therefore, the Commission concluded that the claimant failed to demonstrate that his work for the employer exposed him to Hepatitis C and that there was a direct causal connection between Hepatitis C and the conditions in which he performed his work. Therefore, the Commission affirmed the ALJ.

New Law

Occupational Disease is a Subsequent Compensable Injury and Triggers SIF Liability

In Kelly Kirkpatrick v. Missouri as Custodian of Second Injury Fund, Injury No. 09-071622, the SIF argued that "injury" excludes occupational diseases and the claimant's cubital tunnel syndrome is an occupational disease, thus, not an injury. Therefore, it is not a "subsequent compensable injury" that can trigger SIF liability. The Commission disagreed noting that the Statute specifically provides for injuries by occupational disease, and specifically states those injuries are compensable. The Commission noted that the Statute refers to an injury by occupational disease being compensable, and therefore, the legislature specifically provided that the term "injury" includes occupational diseases and that they are compensable. Therefore, the Commission determined that "injury", as it appears in the phrase"subsequent compensable injury", includes the claimant"s cubital tunnel syndrome which is an occupational disease.

Claim Denied Because Witness Testimonies Inconsistent with Claimant's Testimony

In Georgia Goriola v. Alma Cook Union Manor, Injury No. 10-087056, the claimant testified that she worked the night shift as a CNA for the employer and she was attacked by a resident in July 2010, however, she could not recall the exact date. The claimant testified that after the attack, her face was bruised, swollen and scratched, and a co-worker, Ms. Bush, viewed her injuries. She then advised the manager, Ms. Smith, of the attack and completed an incident report. She testified that Ms. Bush was present when she told Ms. Smith of the attack. Ms. Bush testified that she had worked with the claimant on July 9, 2010, and the claimant advised that something bad happened, however, she did not witness the event and did not see any sign of facial injuries. She also did not hear the conversation between Ms. Smith and the claimant. Ms. Smith, the manager, denied being informed of the attack. She noted that had she known of the attack, the resident, who had no history of this type of behavior, would have been transferred to the hospital for further evaluation, as she would have posed a safety risk to other residents and staff. Also, the claimant nor Ms. Bush indicated on their shift reports that any resident caused any problems during their shift.

The ALJ found that the claimant was unable to state what date her alleged injury occurred, the event was unwitnessed, and her co-worker did not corroborate her assertion that the claimant had injuries to her face. Furthermore, the shift reports prepared by the claimant and Ms. Bush on the alleged date of injury noted there had been no problems with any resident. Therefore, the ALJ was of the opinion that the claimant failed to meet her burden to demonstrate that a work accident occurred. The Commission affirmed the decision of the ALJ.

Claimant Must Prove Work Injury was Prevailing Factor Causing Medical Condition and Disability

In Ronald Armstrong v. Tetra Pak, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-039435, the claimant worked on the feeder/checker line. About half of a shift he was performing the feeding, and the other half he was performing the checking, which was quality control. The feeding part involved taking stacks of cartons off of a table and putting them into a machine. There were different sizes of cartons and the stacks weighed anywhere from 10‑12 pounds to 28 pounds. The table was normally shoulder height, it moved with weight and also could be adjusted by air. The claimant testified that on his date of injury when he began work he did not have any shoulder pain. On his date of injury, he was told by his supervisor that a rush order needed to be finished as soon as possible. The job involved moving containers which were stacked higher than normal and the stack weighed 35 pounds. He pulled the first stack of cartons and fed it into the machine without any problem. In attempting to get the second stack into the machine, he reached and stretched above shoulder level and felt a sharp pain in his right shoulder. The following day he was unable to work, and therefore, reported this incident to his supervisor. The ALJ held that the claimant had not met his burden of proving that he sustained a compensable accident or that the alleged accident was the prevailing factor in causing his right shoulder problems.

The Commission noted that the claimant must establish that he sustained an injury to his right shoulder. In order to show that the injury arose out of and in the course of his employment, the claimant had to prove that the accident was the prevailing factor in causing both the resulting medical condition and disability. The Statute defines the prevailing factor as the primary factor in relation to any other factor, causing both the resulting medical condition and disability. The ALJ found that the more credible evidence showed that the claimant's shoulder complaints were predominantly degenerative in nature and not primarily due to the May 12, 2010 accident. The Commission found that since the claimant had not proved that his May 12, 2010 accident was the prevailing factor in causing both his medical condition and any disability, the ALJ's decision to deny him benefits was affirmed.

Claimant Not Entitled to Total Knee Replacement When Tillotson Applied

In Ervin Hampton v. R.C. Lonestar, Inc., Injury No. 08-013352, the ALJ found that the claimant was not entitled to the medical expenses related to his total knee replacement because he failed to meet his burden of proof on the issue. The Commission noted that in his Award the ALJ stated that the claimant has the burden to prove that the accident was the prevailing factor in causing the resulting total knee replacement. The Commission noted that under Tillotson, this is a misstatement of the law. Rather, the question is whether the claimant has shown that the treatment in question is reasonably required to cure and relieve the effects of the work injury. Furthermore, the claimant must show that the need for treatment flows from the work injury.

The Commission affirmed the ALJ's ultimate decision that the total knee replacement was not reasonably required to cure and relieve the effects of the work injury. The ALJ found Dr. Burke's opinion credible in that the work injury had nothing to do with the claimant's need for a total knee replacement, and the claimant would have required one based on the arthritic changes of his knee alone. The Commission also found Dr. Burke credible. Therefore, the Commission concluded that the need for the total knee replacement did not flow from the work injury and was not reasonably required to cure and relieve the effects of the work injury.

Claimant Alleged Max Rate But Not Entitled to It Even Though Answer Was Filed Late

In Tabitha Hasten v. Sonic Drive-In of High Ridge, No. 06-135802, the claimant alleged in her Claim for Compensation that she was entitled to a "max rate". The employer filed a late Answer, and therefore, the employer was deemed to have admitted the facts in the claimant's Claim for Compensation. Therefore, the ALJ found that the claimant was entitled to the maximum rate. The employer argued that it cannot be deemed to have admitted the claimant's rate was the maximum because the claimant's allegation that her average weekly wage was the "max rate" amounts to legal conclusion rather than a statement of fact. The Commission agreed with the employer and concluded that "max rate" is not a statement of fact, but instead, if anything, it is a legal conclusion. Therefore, the Commission found that the employer did not admit, by filing a late Answer, that the claimant was entitled to a compensation rate of $376.55, which was the maximum rate at the time of her injury.

Climbing Stairs Into Work In Course of Employment

In Debra Fowler v. Compass/Chartwells, Injury No. 05-112444, the employer argued that the claimant's injury did not arise in and out of her employment. The claimant was injured on October 31, 2005 when she was climbing metal dock stairs to enter work. The employer required the claimant to report to work at 6:30 A.M. and the front door did not open until at least 7:00 A.M. The employer instructed the claimant to use the dock stairs when the front door was locked, which was the only way to enter the building before 7:00 A.M. The ALJ found that the physical condition of the work environment created a hazard which was related to the claimant's employment, and gave rise to the injury. At the time of the injury, the claimant was climbing the metal stairs to gain access to her work place to begin her shift. The metal stairs were in the back of the building, and the ALJ noted that the records contained no evidence that the general public had access to them. Therefore, the ALJ found that the claimant's travel up the metal steps was related to her employment. Therefore, the claimant's accident arose out of and in the course of her employment. The Commission affirmed the Decision of the ALJ.

Claim Denied Because Claimant Not Employee or Statutory Employee

In Mauro Brito-Pacheco (deceased) v. Tina's Hair Salon, Injury No. 09-067542, the ALJ found that the claimant was not an employee. The employer was a Hair Salon owned by Tina Diaz, and she supplied a work station to the hair dressers, one of which was the claimant. Diaz provided salon business cards to which hair dressers could add their name. Diaz did not schedule appointments, limit or mandate work hours, provide employee benefits, pay taxes or mandate fees. Basically, the hair dressers would use the space provided and divide the proceeds of compensation paid by the customers. On August 10, 2009, the claimant was asked by another hair dresser to cover his appointments at the hair salon. During this shift, the salon was robbed and the claimant was killed. Diaz did not call the claimant to work that day and was unaware that he was working. The ALJ noted there was no evidence to support that Diaz had the right to control the claimant's work. Therefore, the claimant was unable to sustain the burden of proof regarding the employer/employee relationship. The ALJ then looked to whether the claimant was a statutory employee. The Court noted that the elements to establish statutory employment were whether the work done was under contract on or about the premises of the employer which was in the usual business of the employer. The ALJ found there was no evidence that the work of the claimant was pursuant to contract either written or verbal, and therefore, Tina's Hair Salon was not the claimant's statutory employer. Therefore, the claim was denied. The Commission affirmed the Decision of the ALJ.

Commission Gave Claimant With Borderline Retardation Benefit of the Doubt With Respect to Injury

In Tommy Mittenburg v. Missouri Pressed Metals, Inc., Injury No. 09-109673, the claimant alleged an injury to his neck, lower back and leg, while manipulating a 500 - 600 pound barrel on November 9, 2009. The claimant testified that he told the safety director that sustained an injury. The safety director testified and acknowledged that the claimant reported an injury to him, that he even took the claimant to the chiropractor twice and the employer paid for these visits. However, he testified that the claimant only reported a neck injury to him. The safety director also testified that the claimant told him on several occasions before and after his date of injury that his back hurt, however, made it clear that his pain was not related to his work. It was noted that the evidence showed that the claimant suffered from borderline mental retardation, was functionally illiterate and his thought processes were comparable to those of a child. The ALJ found the claimant more credible than the safety director and found the injury compensable. 

The Commission agreed noting that it was difficult to imagine that the claimant volunteered relatively sophisticated information regarding his back problems described by the safety director. The Commission also found it difficult to believe that the safety director would tell the claimant he could get treatment for the low back during his first authorized visit to the chiropractor if he believed it wasn't a work-related injury, not to mention taking him back again and paying for even more treatment to the lower back. Therefore, the Commission found that the claimant told the safety director that he hurt his neck and back while manipulating a heavy barrel at work on that date, and therefore the injuries to his neck and lower back were compensable.

Insurer Did Not Have to Pay Costs to Employer and Claimant

In Allen Baldwin v. City of Fair Play, Injury No. 11-015959, the claimant was the Chief of Police and had multiple job duties including storm spotting, which required him to go to a location at a high point to begin spotting for tornados, power outages and damage within the city. The claimant used his personal vehicle for storm spotting. In light of the bad weather, the claimant left his residence to storm spot. He walked to his car, grabbed his door handle, at which time he slipped and fell, injuring his shoulder. The Mayor testified that the claimant's duties included storm spotting during severe weather. The employer agreed that the claimant's actions were within the course and scope of employment, however, the insurer refused to provide any treatment, contending that the claim was not compensable. The ALJ found that the claimant's injury was within the course and scope of his employment, and was therefore compensable. The ALJ also determined that the claimant and employer were entitled to costs.

The Commission affirmed the ALJ's opinion, except for with respect to the issue of costs. Pursuant to Statute, if the Division or the Commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. The insurer contended that the costs were inappropriate because it had a meritorious defense, or at least an arguable defense. The ALJ noted that the insurer offered no evidence suggesting that the claimant's injury was anything but compensable. Furthermore, the ALJ noted that the sole reason the claimant was out in the rain, wind, hail and severe weather on his date of injury was to benefit his employer and the citizens of the city. The ALJ found that to refuse compensability under the circumstances of this case was unreasonable and found that to ignore even the employer's pleads to provide basic medical treatment was simply wrong. Therefore, the ALJ found that refusal to provide medical treatment warranted an Award of costs. The Commission disagreed noting that based on the facts of the case and arguments proffered by the insurer, it did not find that its defense of the claim was egregious or without reasonable grounds, and therefore, the costs against the insurer were denied.

Interestingly in this case, the ALJ felt that the employer was entitled to costs. This was because the employer hired its own attorney in light of the fact that it believed that this claim was compensable, however, the insurer would not provide medical treatment because it did not believe the matter was compensable.