Simon Law Group, P.C.
701 Market Street, Suite 340, St.
Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION
CASE LAW UPDATE
October 2024 – December 2024
Claimant Has
Burden to Prove Medical Causation Using “Prevailing Factor” Standard Based on
Entire Medical Testimony
Fernandez
v. Smithfield Foods, Inc., Case No. WD86421 (Mo. App. 2024)
FACTS:
Claimant was walking down the stairs when he lost his footing. He was able
to keep himself upright while holding onto the railing, but his left foot
“skidded” down three steps. Two days later he was seen at Concentra and
diagnosed with a strain of his left knee. The claim was denied and claimant
sought medical treatment on his own and underwent an MRI which revealed severe
lateral patellofemoral osteoarthritis in his left knee.
Subsequently, a
hardship hearing was held. Dr. Z. performed a medical evaluation at claimant’s
request and concluded that claimant had not yet reached MMI and that additional
treatment would be required. During his deposition, Dr. Z. testified that it is
not unusual for a person with patellofemoral osteoarthritis to be asymptomatic
but then to develop pain after an incident. Dr. Z. testified that claimant’s
condition was the result of the work accident.
Dr. S., an
orthopedic surgeon, the employer’s expert testified that claimant’s arthritic
changes, combined with his underlying obesity, are likely the source of his
persistent difficulties and problems. Dr. S. determined that the arthritic
changes to claimant’s left knee preexisted the accident and that the symptoms
were “aggravated at the time of the incident”, but that the arthritis itself
was not caused by or worsened by the work accident. Dr. S. further opined that
claimant had 0% PPD as a result of the accident and he had reached MMI.
The ALJ issued
a Temporary Award and found that the accident aggravated claimant’s underlying
preexisting condition. The judge ordered employer to provide claimant with
additional medical care. Employer appealed to the Commission and reversed the
ALJ and denied compensation.
The Commission
focused on whether the accident was the prevailing factor resulting in the
claimant’s injury. The Final Award found that neither Dr. Z. nor Dr. S. opined
that claimant’s work injury was the prevailing factor in causing claimant’s
left knee pain and discomfort. The Commission concluded because Dr. Z. “vaguely
described” the condition of claimant’s left knee as “pain and discomfort due to
inflammation”, Dr. Z’s report and testimony did not establish that the accident
was the prevailing factor causing both claimant’s medical condition and disability.
Therefore, the Commission found that claimant failed to meet his burden on the
issue of medical causation and denied compensation. Claimant appealed.
HOLDING:
The Court pointed out that claimant had the burden of proving that he was
entitled to workers’ compensation under Chapter 287. As such, the claimant had
the burden to prove both: (1) that he suffered an accident, as defined as “an
unexpected traumatic event or unusual strain. . .”; and (2) that he suffered an
injury, defined as “an injury which has arisen out of and in the course of
employment.” These definitions further make clear that “an injury is not
compensable because work was a triggering or precipitating factor.” Further, an
injury arises out of and in the course of employment “only if the accident was
the prevailing factor in causing both the resulting medical condition and
disability.”
The Court noted
prior precedents that “[t]he question of causation is one for medical
testimony, without which a finding for claimant would be based upon mere
conjecture and speculation, and not substantial evidence.” The Court stated
that the Commission considered the competing expert opinions as to causation,
and then accepted Dr. S’s opinion as credible and persuasive in establishing
that the cause of the current condition of claimant’s left knee were the
arthritic changes combined with his obesity, not the work incident. Therefore,
the Court affirmed the Commission’s decision.
Routine
Performance of Duties for Employer’s Usual Business Activities Qualified
Claimant as a Statutory Employee
Montgomery
v. Cores Lab Structures, Inc., Case No. WD86910 (Mo. App. 2024)
FACTS:
Claimant was loading a concrete beam onto a trailer when a Cores Lab employee
hit the beam with a Cores Lab vehicle, striking claimant in the back and
throwing him from the trailer. Claimant suffered injuries to his back and knee.
Claimant had not sought nor recovered workers’ compensation benefits from Cores
Lab for his injuries.
On the day of
the incident, claimant was working as a driver for Becker Trucking. He used a
tractor which was owned by Becker to haul and deliver Cores Lab products in
accordance with a contract between Becker and Cores Lab. Pursuant to this
contract, Becker had been occasionally hired by Cores Lab since 2016 to provide
supplemental drivers as needed when Cores Lab did not have enough truck drivers
of its own. In the absence of the contract with Becker, Cores Lab would have
had to hire additional truck drivers. Claimant was compensated for each job he
completed for Becker as an independent contractor.
Subsequent to
the accident, claimant filed a civils suit against Cores Lab alleging
negligence. Cores Lab argued that the claimant was a “statutory employee” of
Cores Lab and that the exclusive remedy for his injuries was workers’ compensation.
Claimant
appealed the trial court’s finding that Cores Lab was a statutory employee, and
that Cores Lab was liable under the Missouri Workers’ Compensation Law for
claimant’s injuries.
HOLDING:
The Court noted that exclusive liability of an employer under the Workers’
Compensation Law extends to “any person who has worked under contract on or
about his premises which is an operation of the usual business which he there
carries on.” Thus, any person who qualifies as a “statutory employee” is
exclusively entitled to recovery under the workers’ compensation law for
injuries arising out of and in the course of a statutory employer’s business
irrespective of negligence.
Claimant was
performing work for Cores Lab under contract, and he was injured on Cores Lab’s
premises, two of the three essential elements of statutory employee status.
Claimant asserted, however, that the work he was performing was not an
operation of usual business of Cores Lab.
The Court
noted that an employer’s “usual business” is defined as those activities (1)
that are routinely done (2) on a regular and frequent schedule (3) contemplated
in the agreement between the independent contractor and the statutory employer
to be repeated over a relatively short span of time and (4) the performance of
which would require the statutory employer to hire employees absent the
agreement.
The Court
stated that here, claimant argued that the work he was performing was not in
Cores Lab’s “usual business” because Becker was only called upon by Cores Lab
from time to time as needed. He argued that this rendered the work he was
performing to be “episodic” and “sporadic”. The Court disagreed.
Cores Lab stated
that hauling the concrete beams it makes to its customers is routinely done by
Cores Lab on a regular and frequent basis. Claimant admitted that Cores Lab
routinely, over the course of many years, contracts with Becker to haul its
beams. Finally, if Cores Lab did not have its agreement with Becker, it would
have to hire more in-house permanent truck drivers, a “fact” relevant to the
fourth part of the definition of “usual business of an employer”. The Court
affirmed the trial court’s judgment.
Settlement
Agreements for Repaying Subrogation Apply Only to the Balance of the Recovery
Per the Statutory Provision
Wolk, et
al., v. Grinnell Mutual Reinsurance Co., Case No. ED112371 (Mo. App.
2024)
FACTS:
Claimants, Wolk and Meyer, were injured while working for their Employer. The
employer/insurer, paid Claimant Wolk $900,969.83 and Claimant Meyer $815,829.47
as compensation for their injuries under the Workers’ Compensation Act.
Claimants
brought a personal injury suit against multiple third parties. Before that suit
went to trial, one of the defendants settled with claimants for a total of
$1,000,000, the limits of its insurance policy. As a result, each claimant
repaid employer/insurer $113,517.05, a portion of the workers’ compensation
benefits to them.
Each claimant
separately entered a settlement agreement with employer/insurer in anticipation
of any future award claimants might receive from the ongoing personal injury
suit. The Settlement Agreement stated: “this is a compromise of a disputed case
with respect to subrogation rights arising under Section 287.150”, the statute
laying out subrogation interests.
Thereafter, a
dispute came about between claimants and the employer’s insurer, over the
employer/insurer’s workers’ compensation subrogation lien. After the parties
entered a settlement agreement to resolve this dispute, claimants sought a
declaratory judgment from the trial court interpreting Section 287.150.3 and
their agreement. Claimants argued the trial court erred in awarding employer/insurer
the entire amount of its lien, and that the agreement should be rescinded due
to a mutual mistake. The Court did not rescind the agreement.
HOLDING:
In their first point, claimants argued the trial court erred in awarding employer/insurer
the entire amount of its expenses because Section 287.150.3 did not allow the
employer/insurer to recoup its attorney’s fees and expenses from claimant’s
share of the recovery.
Section
287.150.3 states “Whenever recovery against the third person is effected by the
employee or his defendants, the employer shall pay from his share of recovery a
proportionate share of the expenses of the recovery, including a reasonable
attorney fee. After the expenses and attorney fees have been paid, the balance
of the recovery shall be apportioned between the employer and the employee or
his dependents in the same ratio that the amount due the employer bears to the
total amount recovered if there is no finding of comparative fault on the part
of the employee, or the total damages determined by the trier of fact if there
is a finding of comparative fault on the part of the employee. Notwithstanding
the foregoing provisions, the balance of the recovery may be divided between
the employer and the employee or his dependents as they may otherwise agree. .
.”
In this case,
after the expenses of the recovery were deducted, including reasonable
attorney’s fees, then the balance of the recovery could be distributed per the
terms of the settlement agreement.
The Court
noted that this approach was consistent with the seminal case interpreting
Section 287.150.3, Ruediger. The Court stated that here, the parties
entered a settlement agreement in which they agreed to a division of the
balance of the recovery. Contrary to the claimants’ argument, the trial court
correctly determined the balance of recovery according to the statute and the Ruediger
formula, then applied the terms of the settlement agreement to determine the
employer/insurer’s share of the balance of recovery after deducting attorney’s
fees.
With respect
to the second point on appeal, the Court noted that the settlement agreement
did not result from a mutual mistake. Mutual mistakes occur when there is a
mistaken belief among both parties as to a past or present material fact
regarding the contract. A mutual mistake is not a ground for rescission where
such mistakes become evident through the passage of time. Therefore, the Court
affirmed the trial court's amended judgment.
Application
Is Sufficient If It Provides Opposing Parties Notice of Issues to Be Addressed
Emmerson
v. Prestressed Casting Co. and Second Injury Fund, Case Nos. SD38424, 3834
(Mo. App. 2024)
FACTS:
The ALJ issued an Award finding that claimant was PTD due to the work accident
alone, that the Fund had no liability and that the employer was liable for
future medical treatment.
Employer
timely filed an Application For Review (AFR) to the Commission. Claimant filed
a response to employer’s AFR and provided detailed responses to each of the employer’s
arguments. Thereafter, claimant filed a Motion to Dismiss Employer’s AFR for
failure to comply with the requirements of 8C.S.R.20-3.030(3)(a).
The Commission
issued an order denying the Motion to Dismiss. In part, the Commission stated:
“we exercise our discretion under 8C.S.R.20-4.030(3)(a) and decline to dismiss Employer’s
Application For Review. Although Employer’s Application could certainly be more
specific in terms of announcing its position concerning the controlling issues
that appear to be involved in the case, we believe the Employer’s Application For
Review satisfies the minimum requirements under our rule, in that Employer has
challenged, with adequate specificity, the ALJ’s findings and conclusions with
regard to the issue of whether the Fund or Employer is liable for payment of
permanent total disability benefits.”
HOLDING:
The claimant and the Fund appealed the decision alleging that the
Commission acted without or in excess of its powers.
In reviewing a
Commission’s decision to accept or dismiss an Application for Review, the only
ground for the Court’s review is whether the Commission acted “without or in
excess of its power.”
The Court agreed
with the Commission. Although not perfect, employer’s allegations contained
enough details such that employer’s AFR was sufficient for purposes of the
statutory requirements. Such sufficiency is evidenced by the fact that claimant
was able to respond in detail to the allegations to employer’s AFR, and that
the issues addressed in claimant’s response were the same issues that the
Commission relied upon in entering their own findings. This demonstrated that
the AFR was sufficient to put claimant and the Fund on notice of those issues
to be addressed by the Commission. The Court affirmed the decision of the
Commission.
Surviving
Dependent Entitled to Benefits Upon Substitution of Parties If Requirements
Under Schoemehl Decision Are Met
Ellsworth
v. Wayne County, Missouri and Missouri Association of Counties, Case No.
SD37237 (Mo. App. 2024)
FACTS:
Employee was involved in a motor vehicle accident on March 30, 2007. He
sustained a traumatic brain injury and ALJ issued an Award on May 11, 2016 finding
him PTD and in need of future medical care. Employer was ordered to pay employee
$236.69 per week, and denied a reduction based on an alleged safety violation.
The ALJ also found that Wife was married to employee and that she was his sole
dependent. Employer filed a timely notice of appeal with the Commission only
raising the issue as to whether employer was entitled to a reduction for a
safety violation. The Commission affirmed the Award and employer appealed
again. Employee died on April 13, 2017,
while the appeal at the appellate level was pending.
On May 4,
2017, Wife filed an amended Claim for Compensation with the Commission. Wife
asserted her own right to benefits in connection with Employee’s claim pursuant
to Schoemehl. On June 12, 2017, the Commission advised the parties that
it would hold any action on the amended claim until the Appellate Court came to
decision with respect to the employer’s appeal. On September 8, 2017, Wife
filed with the Court a motion to substitute parties pursuant to Section
287.230. During the appeal process, employer did not challenge the substitution
or any of the Commission’s findings.
On June 22,
2018, Wife filed a Memo in the Circuit Court and asked that the trial court
enter judgment against the employer based on the Commission’s Final Award. The Court
ordered employer to pay Wife all unpaid benefits since employee’s death in
April 2017 and continue to pay Wife $236.69 in weekly benefits until her death.
The employer
appealed arguing that the trial court erred by entering judgment based on the Final
Award of the Commission because Wife’s entitlement to benefits pursuant to the Schoemehl
decision was not raised or decided by the Commission.
HOLDING:
In Schoemehl, the Court concluded that Section 287.230.2 provided
that when an employee is entitled to compensation and death ensues,
compensation ceases when the employee dies from a cause other than his/her work
injury, “unless there are surviving dependents at the time of death.” The Court
noted that a dependent’s right to receive Schoemehl benefits turns on
whether the workers’ compensation claim was pending when the employee died. The
Court also noted the Gervich case
that found the dependent’s wife’s status as a dependent was set on the date of
the husband’s injury. It also noted that Schoemehl applied to claims
that were pending during the so-called Schoemehl window, which was
“between January 9, 2007, the date the Supreme Court issued the Schoemehl
decision, and June 6, 2008, the effective date of the 2008 amendments”.
The Court
noted that in affirming the ALJ’s Award, the Commission had already decided
that Wife was married to employee and was his sole dependent. In the
Commission’s order of November 21, 2017, it found that “Employee died on April
13, 2017 and that Wife remained married to employee, was his sole dependent at
the time of his death, and is the appropriate successor to employee’s right in
this matter.” The Court noted those are all the factual findings required to
support an Award of lifetime PTD benefits to Wife pursuant to Schoemehl.
Accordingly, the circuit court correctly entered a judgment in Wife’s favor.
