NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
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• How should wages paid on a biweekly basis be recorded?
• What if the injury occurred in the middle of the week?
• Or if the injured worker was not employed for thirteen weeks?
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Copyright 2024, Stone Loughlin & Swanson, LLP
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
April 2024 – June 2024
Injury is Not Compensable Because Work Was a Triggering or Precipitating Factor
Hasselbring v. Macon County Nursing Home District, Injury No. 21-079066
FACTS: In 2021, prior to the work injury, the claimant experienced pain in his left leg while walking for more than 30 minutes. Dr. Fernandez confirmed a very large aneurysm of the popliteal artery was thrombosed or occluded. He described the claimant as having a “chronic condition”. He recommended that the claimant undergo a bypass procedure, but he wanted to wait to see how his symptoms progressed.
On November 3, 2021, the claimant was working at Employer’s nursing home when a wheelchair ran over his left foot. That night, Dr. Fernandez performed emergency surgery to revascularize the claimant’s left leg to increase the blood supply. The surgery was unsuccessful, and the claimant’s left leg was amputated above the left knee.
Dr. Fernandez opined that the injury from the wheelchair was the prevailing factor causing acute ischemia or a lack of blood supply, and the wheelchair accident was the prevailing factor in causing soft tissue injuries as well as the lack of feeling, coldness, and bruising of the claimant’s left leg.
Dr. Rao, on behalf of Employer/Insurer, provided his opinion that the diagnosis of thrombosed popliteal aneurysm, with acute on chronic vascular ischemia, was the natural progression of his preexisting condition. He opined that the prevailing factor of the claimant’s loss of limb was an occluded left large popliteal artery aneurysm. He stated there was a known risk that without a bypass this leads to distal ischemia and limb loss, which is exactly what happened to the claimant.
The parties proceeded to a Hardship Hearing before the ALJ who issued a Temporary or Partial Award determining that the claimant met his burden of proving that he sustained a work-related accident that caused a compensable injury to his left leg. The Employer/Insurer filed an Application for Review with the Commission.
HOLDING: The Commission found one point dispositive: the claimant’s work-related accident was a triggering or precipitating factor and not the prevailing factor in causing the claimant’s medical condition and disability. The Commission reversed the ALJ’s temporary or partial Award and issued its final award denying compensation.
The Commission noted that Section 287.020.2 RSMo, for the definition of “accident”, that “an injury is not compensable because work was a triggering or precipitating factor”. Also, Section 287.020.3(2)(a) states an injury shall be determined to arise out of in the course of employment only if: it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury. Section 287.020.3(1) states that injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.
Dr. Rao credibly and persuasively opined that the wheelchair accident was not the prevailing factor in causing the claimant’s preexisting condition to escalate to a level of disability. The doctor explained that if the claimant’s circulation had been normal, an injury from a wheelchair running over his foot “would have been treated with leg elevation, ice, and anti-inflammatories and not urgent thrombectomies in an attempt to get blood flow back into the foot.” The doctor testified that the wheelchair accident triggered or precipitated more ischemia to a foot that was already poorly perfused, and that it was enough to send him into a limb loss situation.
The Commission found that the claimant was involved in a work-related accident on November 3, 2021 when the wheelchair rolled over his left foot. However, based on the credible and persuasive evidence, they found the accident was not the prevailing factor in causing both his resulting medical condition and disability. The opinions of Dr. Rao were more credible and persuasive than those of Dr. Fernandez.
Therefore, the Commission found the November 3, 2021 wheelchair accident at work was merely a triggering or precipitating factor in causing the claimant’s medical condition and disability and therefore, not compensable. The Commission reversed the Judge’s Award.
The Commission also noted that the Tillotson case is not on point. In contrast to Tillotson, the evidence in this case established that the claimant did not sustain a compensable injury because the accident involving the wheelchair was not the prevailing factor in causing both his resulting medical condition and disability. Absent the requisite proof of a compensable injury, Tillotson does not support an Award against Employer/Insurer for the cost of past or future medical treatment.
Employer Did Not Waive Its Right to Select Medical Providers for Claimant’s Future Treatment
HeLmig v. Springfield R-12 School District, Case No. SD38181 (Mo. App. 2024)
FACTS: The claimant sustained an injury, and she was referred to Dr. Galligos for treatment and he then discharged her from care. Subsequently, the claimant contacted Employer and requested additional treatment, but Employer denied the request since Dr. Galligos had discharged her.
Because the claimant was still experiencing symptoms, she sought additional medical treatment on her own using her health insurance. Dr. Thompson diagnosed thoracic outlet syndrome and provided surgery for that condition.
At a Hearing, the ALJ found the claimant was entitled to unpaid medical expenses in the amount of $152,935.67 as well as future medical treatment. As to future medical treatment, the ALJ designated the claimant’s medical providers, including Dr. Thompson, as the authorized treating physicians.
On appeal, with respect to future medical, the Commission affirmed the ALJ’s finding that Employer was liable to provide and pay for future medical treatment reasonably required to cure or relieve the effects of the claimant’s injury. However, the Commission disagreed with the Judge’s implicit finding that Employer’s refusal to authorize medical treatment in the past justified mandating that future treatment may only be provided by or at the direction of the physicians Claimant had previously self-selected. Thereafter, the claimant appealed.
HOLDING: The claimant argued that the Commission erred in modifying the ALJ’s Award by ruling Employer had the right to select Claimant’s future medical providers. However, the argument failed because Section 287.140 says nothing about an Employer waiving its right to select medical providers. To the contrary, it states an Employer shall have the right to select the medical provider.
The Court noted that while an Employer that fails to provide treatment after being notified of a claimant’s injuries is liable for the cost of treatment provided by the claimant’s providers, there is no language in the statute that waives the Employer’s right to direct future treatment, and neither the Commission nor the Court is at liberty to read such language into the statute. The Court noted that “strict construction of a statute presumes nothing that is not expressed.”
Because the statute contains no language waiving the Employer’s right to direct future medical treatment, the Commission did not err in determining Employer has the right to direct future medical care.
Claimant Sustained Compensable Mental Injury Due to Actual Work Events That Would Have Caused Unusual and Extraordinary Stress to a Reasonable Highway Worker
Mantia v. Missouri Department of Transportation, Injury No. 08-096413
FACTS: In 2007, the claimant responded to an accident where a delivery truck driver lost control of his vehicle and was ejected from the truck. She and her crew were called out because there was orange juice, sour cream, and cottage cheese all over the highway. While walking near the scene of the accident, the claimant stepped on the victim’s teeth.
The claimant observed approximately 1,000 accident scenes during the course of her career with Employer. No party disputed the actual work events which occurred during her 20-year career as a highway worker. Eventually, the claimant began to suffer considerable psychiatric symptoms.
In September 2017, the Supreme Court of Missouri issued its opinion in the case which remanded the matter to the Commission for review of the objective standard for proof of extraordinary and unusual work-related stress. In December 2017, the Commission granted the claimant’s request to submit additional evidence and remanded the matter to the Division. In 2023, the ALJ conducted the remand Hearing and each party submitted one deposition exhibit.
HOLDING: After its review, the Commission found that based on the credible testimony of the claimant’s coworker, a former Department of Transportation maintenance superintendent, that the claimant responded to a substantially greater than average number of unusually disturbing accidents involving fatalities during her 20-year career as a highway worker. They found that the actual work events as credibly described by the claimant were so shocking that they would cause a reasonable highway worker extraordinary and unusual work-related stress.
Employer’s chief safety officer testified that highway workers commonly witness vehicle accidents and experience unpleasantness while at work. However, this does not address the inquiry required by Section 287.120, which is whether the actual events the claimant experienced were such that a reasonable highway worker would experience extraordinary and unusual stress. While commendable, Employer’s ongoing provision of training and resources to help employees cope with stressful events, this was irrelevant to the Commission’s determination that actual work events the claimant experienced would have caused unusual and extraordinary stress to a reasonable highway worker.
The Commission concluded that the claimant met her burden, and the Employer was responsible for PPD and future medical treatment.
Evidence of Extraordinary and Unusual Stress Must Meet Required Objective Standard
Boyer v. Taney County Animal Control, Injury No. 21-090237
FACTS: The claimant worked as a kennel technician for Employer. On December 3, 2021, while performing her work duties, a dog growled when the door opened and jumped up and knocked down a coworker onto her back. The dog then started “eating” at the coworker’s arms. As a result of this incident, the claimant alleged mental injury and PTSD.
A coworker, also a kennel technician, testified on the claimant’s behalf. While the coworker testified that the December 3, 2021 event played a role in her decision to quit her job, she acknowledged that there were a lot of other reasons for quitting. She did not testify whether she had previously witnessed animal attacks in the kennel. With respect to the events on December 3, 2021, the coworker testified that the event was a horrific scene in her mind and the attack caused her extraordinary and unusual stress.
The ALJ denied the claim against the Employer/Insurer.
HOLDING: The Commission stated, under Mantia, the objective standard for determining whether a claimant’s stress was compensable is whether the same or similar actual work events would cause a reasonable kennel technician extraordinary or unusual stress. The claimant did not present credible and persuasive evidence to meet that standard. To meet the objective standard, the claimant could have presented the testimony of a kennel technician “as to the circumstances that are experienced as part of the job in general” but the coworker’s individualized, subjective reactions to those circumstances were irrelevant.
The Commission concluded that there was no credible, persuasive and objective evidence that the same or similar actual events the claimant witnessed at work on December 3, 2021 would cause a reasonable kennel technician extraordinary and unusual stress. The Commission affirmed the Judge’s Award.
Medical Evidence in PTD Cases Must Be Credible and Persuasive
Locascio v. Groendyke Transport, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-104642
FACTS: On July 3, 2014, while working as a fuel tank driver, the claimant sustained an injury to his left shoulder. He subsequently underwent three surgeries for a rotator cuff tear. At trial, no party disputed that he was PTD. The Judge concluded that the most credible and competent evidence in the record demonstrated that his PTD is solely due to his July 3, 2014 work injury. The Employer/Insurer appealed.
HOLDING: The Commission noted that no medical expert found the claimant was PTD solely as a result of the primary injury until Dr. Stuckmeyer’s December 28, 2020 report, more than six years after his July 3, 2014 injury. The doctor wrote three earlier reports and in each of those concluded that the claimant was PTD as a result of the combination of significant preexisting disabilities together with the disability from the primary 2014 work injury. In the context of his three earlier reports, the Commission found Dr. Stuckmeyer’s December 28, 2020, revised “alternate” PTD causation opinion neither persuasive nor credible.
The Commission further noted that vocational expert Mr. Dreiling’s original November 22, 2016 opinion that Employee was PTD based on a combination of the preexisting disabilities along with the primary injury to be credible and persuasive. However, the vocational expert’s subsequent deposition testimony was tainted by the claimant’s attorney’s admission on the record that the new case law had prompted counsel to go in a different analytical direction. Also, the Commission was not persuaded by Mr. Cordray’s position that the claimant could not compete for employment in the open labor market due to “life factors” unrelated to the primary injury.
The Commission noted that no expert opined that the claimant’s PTD was attributable to a combination of one or more qualified preexisting disability and disability from the primary injury. Therefore, the Commission concluded that the Fund had no liability and modified the ALJ’s Award regarding Employer’s liability and awarded the claimant 35% of the left shoulder for permanent partial disability benefits.
Evidence Must Be Convincing that Claimant’s Combination of Qualifying Preexisting Disability and Primary Injury Rendered Claimant PTD
Casey v. Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. SD38016 (Mo. App. 2024)
FACTS: In 2016, the claimant sustained an occupational disease to his bilateral upper extremities, the “primary injury”. He settled the claim with his Employer for stipulated disabilities of 15% of each wrist and 15% of each elbow. He had previously settled a 2006 claim with the Employer for 10% of the right knee and a 2012 claim for 10% of the left wrist, 20% of the left knee, and 22.5% of the left ankle.
The claimant presented testimony from Dr. Volarich, who opined that the claimant was PTD as a result of the work-related injury leading up to June 20, 2016 in combination with his preexisting medical conditions. Ms. Shea agreed.
At the Hearing, the ALJ found the Fund liable for benefits. The Fund appealed. The Commission reversed and the claimant appealed asserting that the Commission erred in denying PTD in failing to consider the claimant’s experts’ opinions that his previous right knee disability was sufficient to meet the 50-week threshold requirement and combined with his primary injury to render Claimant PTD.
HOLDING: The Court noted that the claimant bears the burden of proving all elements of his claim. This includes not only establishing a prima facie case, “but convincing the fact-finder to view the facts as needed for Claimant to win.”
In its Final Award Denying Compensation, the Commission found that the credible, persuasive evidence demonstrated that the claimant had 32.5% PPD of the right knee (52 weeks) preexisting the 2016 primary injury. As that finding met the 50-week threshold required by Section 287.220.3, the question of whether the claimant could combine multiple preexisting disabilities to meet that 50-week requirement is moot.
The Court noted that Dr. Volarich and Ms. Shea both opined that the claimant was PTD as a result of the primary injury and his preexisting conditions. Dr. Volarich opined that Claimant was PTD “as a direct result of the work-related injury leading up to June 20, 2016 in combination with his preexisting medical conditions.” Ms. Shea similarly opined that Claimant’s “inability to be employed is the result of the primary work-related injury and preexisting injuries and conditions.”
The Commission’s resolution of the credibility and weight of conflicting testimony is within the sole purview of the Commission.
Because the claimant failed to convince the Commission that the combination of the claimant’s qualifying preexisting right-knee disability and the primary injury rendered the claimant PTD, the Court affirmed the Commission’s Final Award Denying Compensation.
Occupational Diseases Are Compensable Pre-Existing “Injuries” As Defined by Statute to Trigger SIF Liability for PTD
Treasurer of the State of Missouri-Custodian of Second Injury Fund v. Penney, Case No. WD86684 (Mo. App. 2024)
FACTS: The claimant had two prior work-related occupational disease injury claims. In June 2018, she underwent two surgeries for her low back including multi-level decompression and fusion. She settled for 12.5% PPD of the body. In February 2019 she sustained an occupational disease to her neck and upper back with protruding discs, but she declined surgery. The claim settled for 12.5% PPD of the body.
Her primary claim was a new work-related occupational disease in March 2019 for her bilateral upper extremities including right carpal tunnel and left ulnar nerve entrapment and underwent surgery.
Her physician opined that her work was the prevailing factor causing the March 2019 occupational diseases to her bilateral upper extremities. He also opined that claimant’s PTD flowed from the synergism of the global combination of disabilities from each of the occupational disease claims to the low back, cervicothoracic region, and both upper extremities. He further believed that the disability flowing from the 2018 and the February 2019 occupational disease injury claims would qualify under Section 287.220.3 to trigger Fund liability.
At trial, the ALJ found claimant’s expert opinions unrefuted and credible and concluded that claimant was PTD as a result of the combined effect of her disabilities and entitled to PTD benefits from the SIF. On appeal, the Commission affirmed the ALJ’s Award.
HOLDING: The Fund appealed, contending that the Commission misapplied Section 287.220.3 (2)(a)a(ii) by failing to strictly construe the statute when allowing preexisting compensable occupational diseases to satisfy category two, arguing that the plain text of category two excludes compensable occupational diseases by referencing Section 287.020, which outlines the compensability standards for accidents, and not Section 287.067, which outlines the compensability standards for occupational diseases. One statute excluded any occupational diseases except for otherwise provided under the statute, and another statute provided that an occupational disease is a compensable injury.
The Court found that the Commission did not misapply Section 287.220.3(2)(a)a(ii) or fail to strictly construe the statute when allowing preexisting compensable occupational diseases to satisfy category two, in that Section 287.020’s definition of “injury” encompasses occupational diseases provided in Chapter 287, as Section 287.067 of Chapter 287 defines compensable occupational diseases. Therefore, the Commission’s Award was affirmed.
Claimant Must Show Preexisting Disability Reaches Necessary Threshold for SIF Liability for PTD
Carroll v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 21-058799
FACTS: On June 12, 2023, the claimant settled the primary claim for the May 31, 2021 date of injury against Employer/Insurer for 17.5% PPD of each wrist. Also on June 12, 2023, the claimant settled his prior claim against Employer/Insurer for 25% PPD of the right knee and 16% PPD of the left knee for injuries suffered on or about October 31, 2020.
The claimant’s settlements with Employer/Insurer were on a disputed basis, as indicated by the language of each Stipulation. The bilateral knee injuries were due to occupational diseases, as found by the ALJ based on the entire record and the testimony of Dr. Volarich. At trial, the Judge denied PTD benefits against the Fund. The claimant appealed to the Commission.
HOLDING: The Commission affirmed the Award and Decision of the ALJ. Because the primary injury occurred after January 1, 2014, the criteria set forth under Section 287.220.3(2) RSMo applied to establish a compensable claim against the Fund. Under Section 287.220.3, claimants must meet two conditions to make a compensable PTD claim against the Fund. Under the first condition, the claimant must have at least one qualifying preexisting disability, which must be medically documented, equal to at least 50 weeks of PPD, and meet one of the four listed criteria in Section 287.220.3(2)(a)a(i)-(iv). Nonqualifying preexisting disabilities cannot be considered. The Commission noted that Missouri courts have held that while a settlement with the Employer does not bind an ALJ or the Commission, it “does serve as relevant evidence of the nature and extent of Employee’s permanent partial disability attributable to the primary injury.”
In this case, based on the credible and persuasive evidence presented, including the settlement agreement between the claimant and Employer/Insurer, the Commission found the claimant sustained 17.5% PPD of each wrist as a result of the May 31, 2021 primary injury and preexisting disability of 25% PPD of the right knee and 16% PPD of the left knee. They did not find Dr. Volarich’s description of the claimant’s present complaints or PPD rating to be credible and persuasive, as it far exceeded the amount of PPD agreed upon by the claimant and Employer/Insurer. The Commission was more persuaded by the evidence of disability agreed to by the claimant and Employer/Insurer. They were not persuaded that the disputed nature of the claim was a compelling reason to deviate from the below-threshold PPD agreed to in the settlement just three months before the Final Hearing was held.
Because the claimant
failed to demonstrate any pre-existing disability met the 50-week threshold,
his claim for PTD failed. The Commission noted that while the preexisting
bilateral knee injuries were compensable as occupational disease claims, the
finding is moot as they found the claimant failed to meet his burden of proof
and persuasion that either knee met the 50-week threshold to trigger Fund liability. The Commission affirmed the Judge's Award regarding the absence of Fund liability.
Untimely Notice of Appeal Dismissed
Godfrey v. Metropolitan St. Louis Sewer District, Case No. ED111833 (Mo. App. 2024)
FACTS: On January 11, 2023, the Division entered an order dismissing the claimant’s claim with prejudice for failure to prosecute, finding “Claimant did not show good cause why [her] claim should not be dismissed”. Eight days later, on January 19, 2023, she filed a timely Application for Review with the Commission asserting her claim should not have been dismissed because there were alleged irregularities.
On May 24, 2023, the Commission entered its Decision affirming the Division’s Dismissal. On June 13, 2023, the claimant filed a Motion for Reconsideration with the Commission asserting her claim should not have been dismissed because: (1) there were alleged irregularities with the Division’s December 2022 Notice and the January 2023 Hearing Notice; and (2) Chapter 287 does not support a finding that she failed to prosecute her claim.
On June 22, 2023, the Commission entered an Order denying her Motion for Reconsideration. The claimant then filed her Notice of Appeal with the Commission on June 26, 2023, asserting she was appealing the Commission’s May 24, 2023 Decision affirming the Decision of the Division. Thereafter, Employer filed a Motion to Dismiss the claimant’s appeal on the grounds that the Court lacked appellate jurisdiction because the claimant’s Notice of Appeal was untimely pursuant to Section 287.495.1.
HOLDING: Before the Court could consider the merits of the claimant’s points on appeal, the Court had to determine whether the Employer’s motion was dispositive.
Section 287.495.1 provides a notice of appeal in a workers’ compensation case must be filed with the Commission within thirty days from date of the Commission’s Final Award. In this case, the Commission’s May 24, 2023 decision Affirming the Decision of the Division was a Final Award.
Although the claimant filed a Motion for Reconsideration after the Commission’s May 24, 2023 decision, her filing of the Motion did not extend the aforementioned statutory deadline for filing the Notice of Appeal under the circumstances of the case.
Employer’s Motion requested dismissal of the claimant’s appeal, asserting that the Court lacked appellate jurisdiction. Employer’s motion argued the claimant failed to file a timely notice of appeal as to the Commission’s May 24, 2023 Decision and that the Claimant’s motion for reconsideration did not extend the deadline for filing the Notice of Appeal. For that reason, the Court found that the Employer’s argument had merit and dismissed the claimant’s appeal for lack of jurisdiction.
Notice Issue- Section 311 Business owned by Claimant.
Erie Insurance Property & Casualty v. Heater, No. 148 C.D. (2023) (Pa Cwmlth -05/29/2024)
Where the Claimant is both the injured employee and employer/sole proprietor, the employer to whom the Claimant must provide notice of a work related injury for compliance with Section 311 of the PA Workers Compensation Act, is the insurance company that bears the ultimate responsibility for the claim, which allows the insurer to complete a prompt and thorough investigation into the alleged work injury which would normally be performed by the employer. Claimant, David Heater, filed a work injury claim against his company, David W. Heater, a sole proprietorship for which he was employed. The WCJ granted his claim petition finding that he gave timely notice of his injury and that he was injured in the course and scope of his employment. Erie Insurance appealed to the Board which upheld the judge’s decision. Insurer then appealed to the PA Commonwealth Court arguing that Claimant should have been required to give notice to Insurer within 120 days of the injury and the judge’s finding that Claimant’s notice of the injury on himself, as Employer, was sufficient is inconsistent with the purpose of Section 311 of the Act, prejudicial to the Insurer and a violation of Insurer’s due process rights. Claimant responded that the Board did not err in affirming the WCJ’s decision because neither Section 311 of the Act, nor precedent interpreting that provision, required him to provide notice to the Insurer as the Employer received timely notice of the injury. The Commonwealth Court reversed the Appeal Board holding that under these circumstances where a claimant is both the injured employee and the sole proprietor/.employer, the “employer” to whom the claimant must notify of a work-related injury for the purposes of Section 311 in the insurer that bears the ultimate liability for the claim. This allows the insurer to ensure that prompt and complete investigation into the claimed injury, that would normally be performed by a disinterested employer, can be performed to protect stale claims, thereby meeting the purpose of Section 311. Because Claimant did not provide timely notice to Insurer under Section 311, “no compensation shall be allowed” and Claimant’s Claim petition is barred. 23-page decision by Hon. Renee Chon Jubelirer, President Judge.
Paul C. Cipriano Jr., Esquire
Rulis & Bochicchio, LLC