State News

So, remember this: To get a DD to address MMI or IR after a BRC or CCH the BRO or HO will

send a PODODDE, not a DWC-32. Capisce?

It’s called the Presiding Officer’s Directive to Order a Designated Doctor Exam, and it’s the

newest thing at Division field offices. You’ll start seeing it come across your desk, because the

Division now uses it when Benefit Review Officers and Hearing Officers (now collectively

called “Presiding Officers”) order designated doctor exams.

In the past, a Presiding Officer ordered a designated doctor exam like the rest of us – by filling

out a Form DWC-32 (Request for Designated Doctor Exam). Not any more. Effective 10/01/14,

Presiding Officers are to use the new form.

Accordingly to a memo from Kerry Sullivan, the Division’s Deputy Commissioner of Hearings,

“the purpose of this change is to clarify when an examination is ordered by a Presiding Officer

and to identify clearly what the Presiding Officer is ordering the DD to address.” (Why that

requires a new, special form we’re not sure.)

Unless you have been cryogenically frozen in carbonite for the past 3 months, you have probably heard about the recent opinion released by Miami-Dade Circuit Judge Jorge Cueto which declared the Florida Exclusivity Doctrine unconstitutional.  His 22 page opinion (Padgett v. State of Florida No. 11-13661 CA 25) attacked the erosion of the Florida workers’ compensation system as a whole and asserted that the value of the benefits available to claimants did not justify thequid pro quo tort liability protections afforded employers.  The purpose of this article is to provide a general outline of what lead to Judge Cueto’s opinion and to consider its effect on a national scale.

Accident and Injury

The employee, Elsa Padgett, was an account clerk who tripped over some boxes that were left on the floor by a co-worker.  She reportedly fell on her hip and sustained significant injury to her shoulder.  After undergoing replacement surgery for her shoulder, she claimed that the resulting pain forced her to retire. 

Procedural Background

Padgett opted to file a negligence lawsuit against her employer.  In its Answer, the employer asserted the Exclusivity Doctrine (§440.11, Fla. Stat. 2003) as an affirmative defense.  Padgett then amended her Complaint to add a Count for Declaratory Relief asking the Court to declare the Florida Exclusivity Doctrine in violation of the U.S. and the Florida Constitutions.  Once Florida Worker’ Advocates (FWA) and Workers Injury Law & Advocacy Group (WILG) joined the party as interveners, the employer strategically withdrew its Exclusivity Doctrine defense and the negligence action was severed from the Declaratory Relief portion of the lawsuit.  The Florida Attorney General opted not to intervene in order to defend the constitutionality or validity of the Exclusivity Doctrine.  However, she did file a responsive pleading pointing out various procedural and substantive defects in the case.  FWA and WILG next sought a summary judgment but Judge Cueto denied the motion on the grounds that there was no longer a present justiciable controversy.  Padgett then intervened in the Declaratory Relief action which presented a controversy upon which Judge Cueto could rule (Florida empowers a judge to decide an issue if that issue is capable of repetition in the future and might evade review).

Erosion of Benefits

In his written opinion, Judge Cueto noted that the system of workers’ compensation is supposed to be the result of a compromise wherein employees receive immediate access to indemnity and medical benefits through a no-fault insurance system and employers are insulated, with limited exceptions, from tort liability.  He then pointed out that the benefits afforded employees had been greatly reduced as the result of the 2003 amendments that eliminated permanent partial disability benefits, put a 5 year cap on permanent and total disability benefits, capped said benefits at age 75, and apportioned medical care by requiring contribution in the form of co-pays by the employee after reaching maximum medical improvement.   Judge Cueto concluded that the Florida workers’ compensation system no longer provided adequate indemnity and medical benefits for injured workers and that preventing them from pursuing a tort remedy was a violation of due process.

Ruling

Judge Cueto ruled that the Florida Exclusivity Doctrine was unconstitutional on August 13, 2014.  One week later, he denied a motion for rehearing filed by the Attorney General’s office.

Appeal

The Attorney General appealed Judge Cueto’s ruling to the Third District Court of Appeal on August 26, 2014.  The case is now calledFlorida v. Florida Workers’ Advocates.  Should the District Court of Appeal decide to rule, its decision could become the law for the Third District, and possibly followed by the other Florida districts.  The Third District Court declined to certify the case directly to the Supreme Court and the District Court of Appeal also denied that request.  The Attorney General’s initial Brief is due on or before December 4, 2014.

According to Casey Gilson attorney Rayford Taylor, who practices in Georgia and Florida, there is a legitimate chance that Judge Cueto’s ruling will be treated merely as an advisory opinion rather than a declaratory judgment.    None of the Interveners established that they had been injured or prejudiced by the Exclusivity Doctrine, or by the provisions they cited as a basis for a challenge to the statute.  The issue may need to be addressed again the next time an employee sues an employer in tort and the employer asserts the Exclusivity Doctrine as a defense.

Other Constitutional Attacks in Florida

The Padgett case is not the first time this particular claimant’s attorney has taken the offensive against the Florida Workers’ Compensation Act on constitutional grounds.  According to attorney Rob Grace, who practices with the Bleakley Bavol firm in Florida, this same attorney has filed a number of these suits around the state during the last five years. Padgett just happened to be one where a judge accepted his argument.  The attorney filed a similar suit in Broward County which was dismissed approximately five years ago.  At the same time, the attorney had another comparable suit (Stahl v. Tenet Health Systems, Inc.) in Dade County which he lost at the Third District Court of Appeals level. 

The Florida Supreme Court is currently considering a couple of other cases involving constitutional attacks on the state’s workers’ compensation system.  In the case ofWestphal v. City of St. Petersburg, The Court has before it an appeal from a firefighter who was injured and left with no income after his temporary indemnity benefits expired.  His authorized doctors took him out of work and he was not eligible for additional benefits until the doctors placed him at maximum medical improvement.  The firefighter is challenging the constitutionality of the statutory limit on the payment of temporary total disability benefits.

In the case of Castellanos v. Next Door Company, the Florida Supreme Court is considering an appeal challenging the constitutionality of the statute that provides for the calculation of attorneys’ fees in workers’ compensation matters, based solely on a statutory percentage of benefits achieved by the attorney.

Other States

Although it has not yet risen to the level of a national trend, several other states have seen constitutional attacks on certain aspects of their respective workers’ compensation systems. 

In California, the constitutionality of the workers’ compensation lien system was recently raised in the case ofAngelotti Chiropractic v. Baker. 

Approximately 20 years ago, the entire Texas Workers’ Compensation Act withstood a constitutional challenge and, more recently, the Texas Office of Injured Employees Counsel released a few reports last year that pointed out the inequities of the alternative dispute resolution program. 

In Tennessee, there have been some unsuccessful constitutional attacks on other parts of the workers’ compensation statute (i.e. multipliers and the Medical Impairment Registry program) but not the Exclusivity Doctrine. 

Approximately 6 years ago In Alabama, an employee filed a motion seeking to have the $220 cap for permanent partial benefits deemed unconstitutional.  The judge denied the motion but stated in his Order that the cap set 23 years prior basically guarantees poverty for claimants and their families.  The judge further stated that "the trial courts see these workers leave our courtrooms week after week, without the ability to support themselves or their families."  The judge deemed the cap unfair but not unconstitutional and called upon the Alabama Legislature to make the change.  Several legislative attempts at increasing the cap have been made since that time but all have been unsuccessful. 

Moral of the Story

According to Rob Grace, “my prediction is that, in the end, nothing will come ofPadgett.  Maybe I will be proven wrong but I find it difficult to believe that our supreme court is going to basically throw out the entire workers’ compensation statute.”  Rayford Taylor agrees with Grace.  According to Taylor, “I do not see how mere allegations that certain provisions are different from what they once were invalidates the tort immunity of an employer whose only offense was complying with the statute.”  Even if Grace and Taylor are correct, there remain lessons that can be learned from the Padgett opinion and other such cases.  The more you reduce benefits to employees, the more susceptible to constitutional attacks your workers’ compensation system becomes.  In his now already infamous opinion, Judge Cueto referred to a First District Court of Appeal comment on the “minimum” requirements necessary for a workers’ compensation system to pass constitutional muster.  InBradley v. Hurricane Restaurant (an 18 year old case that interestingly involved both attorneys Taylor and Grace), the Court stated that workers’ compensation law continues to be a “reasonable alternative to tort litigation” when it “provides injured workers with full medical care and benefits for disability (loss of wage earning capacity) and permanent impairment regardless of fault, without the delay and uncertainty of tort litigation.”  In Judge Cueto’s opinion, the Florida system does not meet this minimum.  Does yours?

________________________________________

About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

The Division is accepting public comment on planned revisions to the PLN‐11 (Notice of

Disputed Issue(s) and Refusal to Pay Benefits). The proposed new form provides an area for

the insurance carrier to check the appropriate box to indicate which issue (extent of injury,

disability, or entitlement to death benefits) that is being disputed. The form also provides a

definition for “disability” for the injured worker. There are also minor revisions to update and

clarify the instructions, including a “caution” for insurance carriers to “explain the reason(s)

for disputing the issue in plain language without unnecessary use of technical terms,

acronyms, and/or abbreviations.” The instructions also include the following cautionary

statement: “Disputes must be based on the information the carrier has obtained or verified.”

While relatively minor, the above changes exhibit an apparent effort by the Division to

encourage carriers to provide more clear and concise language in its disputes so that the

injured worker understands exactly what is being disputed. We have always discouraged the

use of acronyms in a PLN‐11; best practice is to always use full terms so that a claimant is on

notice of what, exactly, the carrier is disputing. For example, instead of disputing extent of

injury to “CTS” or “lumbar DDD,” the carrier should spell out that it is disputing carpal tunnel

syndrome and lumbar degenerative disc disease. Likewise, instead of disputing disability

based on a “valid BFOE,” the carrier should state it is disputing disability pursuant to a bona

fide offer of employment tendered by the employer. As for the Division’s instructions

requiring that “disputes must be based on the information the carrier has obtained or

verified,” we should take this as a reminder that it is best practice for the carrier to document

its claim file as early as possible with written and verified evidence supporting the basis for

its dispute. In other words, don’t wait until a BRC is set to take and transcribe a recorded

statement, obtain medical records for a pre‐existing injury, or obtain a hard copy of a

toxicology report.

The revised form is currently available on the Texas Department of Insurance website, and the

public comment period closes Wednesday, October 1, 2014 at 5 p.m. Public comments may

be submitted by e‐mail, snail mail, or personal delivery to: Texas Department of Insurance,

Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel MS‐4D,

7551 Metro Center Drive, Suite 100, Austin, Texas 78744‐1645; Email:

InformalRuleComments@tdi.texas.gov.

The Division made minor changes to its DWC‐26 (Request for Reimbursement of Payment

Made by Health Care Insurer) and DWC‐69 (Report of Medical Evaluation). The revisions to

2

the DWC‐26 replace the term “ICD‐9” with the term “diagnosis code,” in order to facilitate

transition from ICD‐9 coding to ICD‐10 coding for workers’ compensation medical billing,

processing, and reporting. (ICD‐9 and ICD‐10 refer to the 9th edition and the 10th edition,

respectively, of the International Classification of Diseases, Clinical Modification and

Procedure Coding System.) Regarding the DWC‐69, the Division has added instructions for

injured employees.

The finalized forms are available on the Texas Department of Insurance website and are

effective January 1, 2015.

The US Drug Enforcement Administration (DEA) has reclassified hydrocodone combination

drugs from Schedule III to Schedule II in the Schedule of Controlled Substances, effective

October 6, 2014. This reclassification change impacts all physicians and pharmacies, including

drugs prescribed and dispensed in the Texas workers’ compensation system. Hydrocodone

combinations are the most frequently prescribed drugs in the Texas workers’ compensation

system.

This change has no direct impact on the application of DWC’s pharmacy closed formulary.

However, prescriptions for Schedule II drugs have specific requirements, and the

reclassification will result in changes to the physician prescription process for hydrocodone

combinations. For example, physicians may not delegate to advance practice nurses and

physician assistant’s authority to prescribe these drugs outside of a hospital or hospice setting,

nor may they “call in” prescriptions for these medications to pharmacies (except in

emergencies, in which case oral transmission must be followed up with written prescription

within seven days). In addition, physicians must use official prescription pads from the Texas

Department of Public Safety (DPS) for written prescriptions; or if e‐prescribing, must use a

certified Electronic Prescribing of Controlled Substances (EPCS) vendor. Most significantly in

our context, physicians may not refill prescriptions of these drugs without a patient visit or

consultation, and prescriptions may be issued for a maximum 90‐day period (three 30‐day

prescriptions to be written at one time). Refills are to be filled on a “not before date” written

on the prescription note by the prescriber. Claimants and pharmacies are encouraged to work

with the physician to resolve any issues regarding these changes when prescribing or

attempting to fill prescriptions for hydrocodone combinations.

Takeaway: Hydrocodone medications will become triple‐script medications, and an injured

worker will have to have a doctor’s office visit to get the script.

The Division has increased the maximum weekly benefit rate for income benefits from $850

to $861, and has increased the minimum weekly benefit rate from $127 to $129. The new

weekly benefit rate maximums and minimums are applicable for dates of injury from

October 1, 2014 through September 30, 2015.

The new maximum and minimum weekly benefit rates will not affect dates of injury prior to

October 1, 2014, as the maximum weekly income benefit in effect on the date of injury is

applicable for the entire time that the benefit is payable. Tex. Lab. Code Section 408.061(g).

A table showing maximum and minimum weekly benefit amounts for dates of injury occurring

from January 1, 1991 through the present is available on the Texas Department of Insurance

website at http://www.tdi.texas.gov/wc/employee/maxminbens.html.

It is a generally recognized fact that the statute and Division rules provide insurance carriers

an absolute right to an RME to address an opinion of a designated doctor. Tex. Lab. Code

Section 408.0041(f); 28 Tex. Admin. Code Section 126.5. However, in some cases, Hearing

Officers are declining to keep the record open to allow opportunity for the insurance carrier

to obtain a post‐DD RME to address a newly amended DD report (received in response to a

Hearing Officer’s request for clarification made in the course of an ongoing proceeding), on the

basis that the carrier “failed to use due diligence.”

For example, a recent Appeals Panel decision addressed a situation in which the self‐insured

had tried to obtain an RME addressing a DD’s amended report. The Hearing Officer has sent

the DD a letter of clarification, which led to the DD re‐examining the Claimant and amending

his prior report with respect to MMI/IR. The Hearing Officer gave the parties the opportunity

to respond to the DD’s report, and the self‐insured responded and requested additional time

so that an RME doctor could be obtained. The Hearing Officer denied the self‐insured’s request

to hold the record open for an RME report, citing that the self‐insured “failed to exercise due

diligence in seeking and obtaining an alternate IR although the self‐insured was fully aware

that the designated doctor had not rated the entire compensable injury prior to the CCH.” The

self‐insured appealed, contending it was denied procedural due process because it was not

granted additional time to obtain an RME doctor to opine on the DD’s amended report. The

Appeals Panel found the Hearing Officer did not abuse his/her discretion in denying the selfinsured’s

request to leave the record open to obtain the RME. Appeals Panel Decision (APD)

140722, decided June 5, 2014.

We could not find any “due diligence standard” in the rules or statute allowing for post‐DD

RMEs. We know, because we looked. Nevertheless, we must live with the cards we are dealt,

and are including this case in this month’s newsletter as a cautionary tale: in any case in which

you believe a post‐DD RME will be necessary or helpful to the carrier’s case, it’s best to

proceed with the request as soon as possible to ensure the carrier’s statutory right to an RME

is preserved. This is always good practice, regardless.

Decedent, Gerald Hallquist, worked as a laboratory technician for E.I. Dupont de Nemours (hereinafter Dupont) from 1968 until his retirement in 1998.  Between 1977 and 1982, he worked in the quality control lab with liquid chemicals including benzene.  He wore safety gloves and a uniform supplied by Dupont.  When working with certain chemicals, the decedent was required to wear additional protective clothing. 

            Prior to his death on June 7, 2010 at the age of 76, decedent filed a claim petition alleging that his exposure to chemicals led to multiple myeloma.  Decedent gave a deposition de bene esse in which he stated that he tested benzene, but he did not state how often that occurred during the five year period he worked in the quality control lab.  He said that he knew what benzene smelled like, but he never quantified the number of times he smelled this chemical while working in the lab.  There were chemical spills when he worked in the lab, but he was not sure of any specific chemical involved. The decedent testified that he smoked a pack of cigarettes between the ages of 19-21. 

Mary Hallquist, decedent’s widow, filed a dependency claim petition against Dupont.  Petitioner produced Dr. Leon Waller, a primary care physician with no subspecialty, as an expert in internal medicine.  Dr. Waller gave an opinion that the decedent’s multiple myeloma was caused by his “long-term exposure” to benzene during the period of time in the quality control lab.  At first, he said that the exposure would have to occur on a daily basis during this time period for it to have caused the decedent’s illness.  He later testified that the exposure needed to have occurred once or twice a week, three times a week, or at least a few times a week.  Dr. Waller conceded that he did not know how many times the decedent worked with benzene or how many times he smelled it.  However, he said the exposure had to have occurred 100 to 150 times a year for him to draw causal relationship between benzene exposure and multiple myeloma.

            Respondent produced a toxicologist, Dr. Shanna Collie Clark, Ph.D, as its expert.  She said that benzene is a carcinogen, but there is no conclusive research showing that benzene exposure causes multiple myeloma.  It is related to leukemia, however.  Dr. Clark testified that benzene as a causal factor for leukemia would be a ten, but only a one or a two for multiple myeloma.  She further said that there was insufficient epidemiological evidence to draw causation, and there was a notable lack of exposure as well.  Dr. Clark said that the decedent wore gloves and protective clothing.  Samples were placed by another individual under a hood and decedent took “one drop, one c.c. in a syringe into a closed system while he’s testing it.” Dr. Clark also testified that benzene exposure cannot be linked to a multiple myeloma condition that occurs 25 years down the road. 

            The Judge of Compensation ruled for respondent and dismissed the case.  The Judge noted that the decedent used a closed instrument, a syringe, injecting the test material into a closed machine in a room that had ceiling fans throughout the room, sucking vapors out of the room.  Petitioner appealed to the Appellate Division, which affirmed the dismissal of this case. 

            The Appellate Division observed that petitioner did not offer proof that the decedent was exposed to benzene 100 to 150 times per year, which even her own expert Dr. Waller said was necessary to draw causation.  Blood tests taken after the alleged exposure from 1977 to 1982 showed no evidence of benzene exposure in the decedent.  The Court noted that the decedent never quantified the amount of his exposure and never testified that benzene was spilled near him.  For these reasons, the Appellate Division affirmed the dismissal of this case.

            This case can be found at Hallquist v. E.I. Dupont de Nemours, A-6223-12T2 (App. Div. October 10, 2014).  The case was successfully defended by Stephen Fannon, Esq., a shareholder with Capehart Scatchard, along with Ashley Mollenthiel, Esq. on the brief with Mr. Fannon.

On October 10, 2014, the Alabama Court of Civil Appeals released its opinion in the case ofArthur Barney v. Elizabeth Bell, as personal representative of the estate of Maurice Bell, deceased, and William Clay Teague. This case was before the Court for a second time, because Barney filed an Application for Rehearing after the Court ruled against Barney on July 18, 2014. A summary of the facts of the case and the Court of Appeals’ first opinion can be foundhere. On rehearing, the Court reversed itself and the trial court, holding that Barney’s attorneys were not entitled to summary judgment on Barney’s claim that they committed malpractice by retaining an excessive attorney’s fee on the workers’ compensation claim. The Court also held that Barney was entitled to partial summary judgment on that claim. The Court entered judgment in favor of Barney in the amount of $6,375.00, and remanded the case to the trial court for a determination of whether Barney is entitled to additional compensatory of punitive damages.

In reaching its decision, the Court noted that the attorneys failed to present any expert testimony regarding the reasonableness of their fees, and that they were therefore not entitled to summary judgment on Barney’s malpractice claim. The Court further noted that there was no factual dispute as to whether the attorneys breached the standard of care, thus committing malpractice, by keeping too much of Barney’s workers’ compensation settlement for their fee.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

MISSOURI WORKERS’ COMPENSATION 

CASE LAW UPDATE 

JULY 2014 – SEPTEMBER 2014 

Absent a Showing of Fraud, Undue Influence, or Violation of a Party’s Rights, the Commission Must Approve a Voluntary Settlement

Hinkle v. A.B. Dick Company, Case No. WD76952 (Mo. App. Ct. 2014)

FACTS: The claimant died in a motor vehicle accident while in the course and scope of his employment. His widow subsequently filed a Claim. An ALJ approved weekly death benefits for the widow in March 2007. In September 2013, the widow and the employer/insurer voluntarily entered into a lump sum settlement for commutation of the March 2007 Award. However, the Commission refused to approve the settlement because: 1) settlement was not reached to resolve any pending claim or dispute between the parties; 2) the widow would waive her rights under the Missouri Workers’ Compensation Statute because she would only receive 49% of the present value of the death benefits awarded; 3) the settlement was not in accordance with the widow’s rights; and 4) the proposed lump sum did not equal the present value of the death benefit installments under the Award and the parties showed no unusual circumstances warranting departure from the normal method of payment. The widow appealed.

HOLDING: On Appeal, the Appellate Court reversed the Commission and noted that the Missouri Workers’ Compensation Statute required the Commission to approve a voluntary settlement absent a showing that that settlement violated the rights of any party or was the result of undue influence or fraud. The Court noted that in this instance, the widow understood her rights and benefits, and the settlement was not the product of undue influence or fraud. Therefore, the Commission erred as a matter of law in not approving the settlement.

Returning to Work Post-Injury Does Not Preclude Finding of PTD

Brashers v. Treasury of the State of Missouri, Case No. SD32872 (Mo. App. Ct. 2014)

FACTS: The claimant was injured as a result of a fall at work. However, she also had extensive pre-existing injuries including Moyamoya (a condition which causes strokes, seizures, and balance problems), a neck surgery and fusion, surgically treated bilateral carpal tunnel, a rotator cuff repair, arthroscopic surgeries on both knees, one knee replacement, depression, fibromyalgia, bilateral ulnar neuropathy, and osteoarthritis. Prior to this injury she was incapable of anything other than sedentary work. Following the claimant’s work injury, she returned to work on light duty working about 5 hours a day, which was similar to her pre-injury work hours. However, she was terminated 10 months later after her employer received a report from Dr. Koprivica who stated that the claimant was not employable and should not be employed. At a hearing, an ALJ determined that the claimant was not PTD before the injury because she had maintained employment for 2 ½ years prior to her injury and held that the claimant was PTD as a combination of the work injury and her prior injuries. On appeal, the Commission affirmed and noted that the claimant sustained new permanent disabilities as a result of her work injury. Additionally, the Commission noted that it was consistent with the purposes of the Fund to award compensation to an employee who, until her work injury, was tenacious enough to compete on the open labor market. On appeal from the Commission’s decision, the Fund argued that the claimant was already PTD at the time of her work injury. Alternatively, the Fund argued that if the claimant was not PTD before the work injury, she could not have been rendered PTD by a combination of the work injury and her pre-existing disabilities because she returned to her regular job following the work injury. 

In Christy v. Missouri Department of Higher Education/Southwest Missouri State University and Treasurer of Missouri, Injury No. 06-004801, the claimant worked for the employer from 1995 through her retirement in 2008. Evidence showed that she was a good employee for many years. In 2006, she suffered carpal tunnel syndrome. She underwent releases and then returned to work. Upon returning to work, the claimant’s job performance ratings indicated that her performance had decreased but was still satisfactory to her employer. She also had two pre-existing conditions which did not interfere with her ability to perform her work duties. At a hearing, the ALJ determined she was not PTD and awarded 17.5% PPD of each upper extremity at the 200-week level and a 10% load. The ALJ found that the claimant was not PTD because her return to work after her surgeries showed that she competed in the open labor market.

On Appeal, the Commission affirmed the ALJ’s ruling that the claimant was not PTD but disagreed with the ALJ’s logic. The Commission found that an employee’s return to work for her employer did not necessarily mean that the employee is not PTD or that the employer would have hired her after she recovered from her injury given her resulting disabilities.Specifically, the Commission noted that the claimant returned to a position she already had and did not compete on theopen labor market. They went on to state that several considerations, such as loyalty, could have persuaded the employer to re-hire the claimant and those considerations may not be shared by other employers.

Despite Claimant’s Expert’s Testimony That He Was PTD as a Result of Prior Injuries and His Work Injury, Commission Can Still Find Him PTD as a Result of Work Injury Alone

Hembree v. Treasurer of the State of Missouri, Case No. SD32982 (Mo. App. Ct. 2014)

FACTS: In 2003 the claimant fell from a scaffolding, sustaining injuries to his back, head and ribs, and received a settlement. He was again injured in 2006 after falling off scaffolding, when he sustained injuries to his ribs, right lung and right arm. Following his 2006 injury, the claimant was left with virtually no use of his right arm and was forced to rely almost exclusively on his left arm to perform his job duties. Mr. Lala, the claimant’s vocational expert, issued a May 2008 report finding that the claimant was PTD. Later, the claimant sustained a third injury in October 2008 when he developed a cyst in his left hand. Shortly thereafter, the claimant left his job and never worked thereafter. The claimant settled his 2006 and 2008 claims with the employer, and proceeded to trial against the Fund on both his 2006 and 2008 injuries. In 2011, Mr. Lala issued an addendum to his May 2008 report, finding that the claimant was PTD as a “combination of all of his disabilities.” At a hearing, an ALJ determined that the claimant was PTD as a result of a combination of his 2008 injury and previous injuries. The Fund appealed. 

On Appeal, the Commission reversed the ALJ’s finding and held that the claimant was PTD before his 2008 injury. While the Commission noted that the claimant did return to work following his 2006 injury, he returned as a tuck pointer, which was a position created for him. Additionally, it noted that this tuck pointing work would basically consist of clean up work that amounted to light duty. Therefore, the Commission found that the Fund was not liable for PTD benefits. The claimant appealed.

HOLDING: On Appeal, the claimant argued that the Fund provided no vocational expert opinion to support its decision that the claimant was PTD prior to the 2008 injury. The Court noted that the credibility of experts is within the province of the Commission, and the Fund is not required to present its own vocational expert. In light of Mr. Lala’s conflicting opinions, the Court found that there was competent and substantial evidence on which the Commission could base its opinion. 

Poor Academic Record Does Not Create Permanent Learning Disability to Establish Pre-Existing Condition

In Curbow v. Hillhouse Services, Inc. and Treasurer of Missouri, Injury No. 10-006952, the claimant had pre-existing injuries to his low back. Additionally, the claimant was poorly educated due to his lack of interest in school. The claimant sustained an injury in the course and scope of his employment to his low back. The day after his injury, he saw his chiropractor, who he had been seeing for his prior low back condition, at which time he reported he was not getting better, but denied any trauma. At trial, the claimant denied the history recorded in the chiropractor’s record and explained that he was perhaps confused by what the word “trauma” meant. An ALJ determined that the claimant was injured in the course and scope of his employment and assessed 12.5% PPD of the body referable to the work injury. Regarding the claimant’s argument that he was PTD as a result of the combination of his work injury and his learning disability, the ALJ determined that the claimant was not completely illiterate and his problems with reading and writing were not permanent in nature. Specifically, the ALJ noted that the claimant voluntarily dropped out in the 9^th grade, never attempted to obtain a GED, and had a very poor attendance rate while in the 8^th grade. Therefore, the ALJ found that the claimant did not show any initiative towards bettering his education and his mental deficiency was not permanent. Moreover, it was noted that the claimant had never been diagnosed with an actual learning disability. On Appeal, the Commission summarily affirmed. 

The First Question is Whether the Claimant is PTD From the Last Injury Alone

In Peek v. Treasurer of Missouri, Injury No. 10-090162, the claimant sustained an injury to her neck in the course and scope of her employment. The claimant also had a pre-existing rotator cuff tear although she was able to continue with her employment without any restrictions or accommodations. Following her work injury she was placed on light duty and had problems even doing that work due to the pain in her neck as she had to look at the computer screen. Additionally, she had to lay down intermittently during the day because her pain in her neck was so bad. She settled her claim against her employer and proceeded to trial against the Fund alleging PTD. At a hearing, the ALJ noted that the first question is whether the claimant is PTD from the last injury alone. The ALJ found that the claimant, due to her difficulty working light duty and need to intermittently lie down, was PTD as a result of the work injury alone. Consequently, the ALJ refused to impose liability on the Fund. On appeal, the Commission summarily affirmed.

Beatrice v. Curators of the University of Missouri, Case No. WD76807 (Mo. App. Ct. 2014)

FACTS: The claimant was injured while assisting a struggling patient. She underwent surgery and was post-operatively diagnosed with a bulging disc and annular tears at L4-5 and L5-S1. The employer’s experts, Drs. Conway, Coyle, Bridwell, Carr and Chabot testified at a hearing that the claimant sustained only a back strain as a result of the accident. Conversely, the claimant’s primary expert, Dr. Highland, who performed her surgery, believed she sustained lumbar disc bulges and associated annular tears as a result of the accident. The ALJ found that the claimant sustained an L4-5 disc bulge and an L5-S1 annular tear, and that the work accident was the prevailing factor in causing those injuries, and awarded 23% PPD of the body as a whole. The employer appealed to the Commission who affirmed. The employer again appealed essentially arguing that the Commission’s ruling was not supported by substantial and competent evidence as it sided with Dr. Highland’s sole report finding the claimant’s injury was work-related whereas the employer provided testimony from five credible medical experts.

HOLDING: On Appeal, the Appellate Court stated that this was a dispute between the claimant’s and employer’s experts. It noted that the credibility afforded to experts is for the Commission to decide. It was further noted that the Commission’s decision was supported by substantial and competent evidence.

Unless Squarely Contradicted, Expert Testimony will be Found Credible

In Chambers v. Sunnen Products Company and Treasurer of Missouri, Injury No. 02-002046, the claimant was injured while at work. At a hearing, her medical experts, Dr. deGrange and Dr. Volarich opined that future medical treatment was necessary. Specifically, Dr. deGrange recommended a third surgery to address the claimant’s condition, while Dr. Volarich stated that additional surgery was not indicated but recommended ongoing conservative treatment. The employer’s expert, Dr. Coyle, opined that no future medical treatment would be needed. At a hearing, an ALJ found that the claimant was 50% PPD referable to the work injury, but did not award any future medical treatment. The claimant appealed.

On Appeal, the Commission noted that Dr. Coyle did not specifically address the issue of whether conservative treatment might relieve the claimant’s ongoing back pain and symptoms, and therefore, his opinion did not contradict Dr. Volarich’s opinion that non-surgical conservative treatment may be needed. Therefore, the Commission felt that Dr. Volarich was the most persuasive and ordered the employer to furnish non-surgical future medical treatment that may be reasonably required to cure and relieve the effects of the work injury.

Surgical Physician More Credible on Causation

In Dierks v. Kraft Foods and Treasurer of Missouri, Injury No. 09-040114, the claimant’s feet became entangled in an air hose that had been left on her employer’s floor, causing her to trip and fall, sustaining injury to her left knee. At trial, the employer and its experts argued that the work injury only caused a knee contusion, given that the MRI film showed a degenerative torn meniscus. Conversely, the claimant’s expert, Dr. Buchert, acknowledged that the MRI film suggested a degenerative tear, but stated that while he was performing surgery on the claimant’s knee and personally examined the medial meniscus, he found the tears to be acute and not degenerative. The ALJ determined Dr. Buchert was the most credible, as he had the benefit of personally examining the meniscal tears and the ALJ found that those tears were caused by the work accident. The Commission summarily affirmed.

Expert’s Revision of Their Report Does Not Impair Credibility if Based on New Records

In Yelverton v. Kuna Foods Service and the Treasurer of Missouri, Injury No. 02-101407, the claimant was driving a pallet jack when his right leg was impaled on the blades of a fork lift. He also had pre-existing injuries including a fracture of his left tibia, for which he underwent surgery and compression fractures of L1, L2 and L3 as a result of a bicycle accident. While these prior injuries did not cause the claimant to miss any work, he did have difficulty maintaining a fixed position for over two hours, as well as chronic back pain that radiated down the back of his left leg, which was ongoing and lasted up to and through his work injury.

The employer’s vocational expert, Mr. England, initially issued a report finding that the claimant could pursue entry level service employment or acquire additional skills through the help of the State Division of Vocational Rehabilitation and did not feel the claimant was totally disabled from all forms of employment. Subsequent to Mr. England’s report, the claimant saw Dr. Volarich, the only doctor who examined the claimant’s back, who noted that the claimant had lumbar radicular syndrome and therefore was unable to tolerate standing for more than 20 or 30 minutes, and would possibly need to lie down periodically. After review of Dr. Volarich’s IME, Mr. England issued a second report wherein he stated that if one assumes that the claimant needs to lie down periodically due to his low back pain, as Dr. Volarich indicated, then that could preclude his ability to work and he could be totally disabled as a combination of the prior back problems and the work injury.

The claimant’s vocational expert, Ms. Browning, initially issued a report finding that the claimant could potentially work in a limited number of security guard and entry level customer service positions that include on the top training, and also did not feel that the claimant was PTD. However, Ms. Browning had no records relating to the claimant’s back when she provided her initial report. Subsequent to Ms. Browning’s initial report, she reviewed additional records regarding the claimant’s pre-existing back injury referable to the bicycle incident, and then issued a second report wherein she did find the claimant PTD as a result of his pre-existing back condition and his work injury. At a hearing, an ALJ found that the claimant sustained 85% PPD of the right knee as a result of the work injury, but did not find he was PTD. Specifically, the ALJ found Mr. England more credible than Ms. Browning because Ms. Browning originally wrote in her report that the claimant was employable and the additional back records she reviewed consisted only of five pages from one medical visit.

On Appeal, the Commission reversed the ALJ’s finding and found that the claimant was PTD as a result of his pre-existing and work injury together. Specifically, the Commission noted that Ms. Browning’s change of opinion due to newly obtained information was no reason to find the witness less credible and that as Dr. Volarich was the only doctor to physically examine the claimant’s back, he was believed the most qualified expert to speak on his back disability.

Claimant’s Constantly Changing Story Impaired Credibility and Prevented Him From Satisfying His Burden of Proof

In Pounds v. Gilster-Mary Lee Corp., Injury No. 10-073936, the claimant testified at trial that he slipped off of a fork lift and sustained immediate pain and injury to his back. He then stated on direct that he never gave different information regarding the incident to anyone. However, medical records showed inconsistent histories: 1) his injury was not a work injury; 2) he injured himself while lifting boxes over a period of time; 3) his symptoms had gradually increased for one year prior to his date of injury; 4) he was unsure what his mechanism of injury was; and 5) he gave several different histories regarding the alleged fork lift incident. Additionally, the claimant gave conflicting testimony at his hearing and his deposition regarding how his fork lift incident occurred. Ultimately, the ALJ found that the claimant failed to meet his burden and show his injury was work related and therefore, denied compensability. On appeal, the Commission affirmed.

Determination of Whether Claimant Was Injured In Scope and Course of Employment is Whether She Was InjuredBecause She Was at Work Not Merely While She Was at Work

Randolph County, Missouri v. Moore-Ransdell, Case No. WD76709 (Mo. App. Ct. 2014)

FACTS: While at work, the claimant squatted down, reached in the back of a file drawer, and twisted her body in an attempt to remove a file, sustaining injury to her low back. She treated with Dr. Highland, who diagnosed her with an acute lumbar strain and internal disc disruption to L3-4, L4-5 and L5-S1 secondary to the work injury. He subsequently performed surgery. At trial, Dr. Highland testified on direct that the work injury caused the claimant’s injury and need for surgery. On cross-examination, Dr. Highland admitted that the claimant had increasing stenosis and continuing degeneration of the aforementioned discs which were the source of her pain, and that without her pre-existing disc degeneration the lumbar strain that she suffered as a result of the work injury would not have necessarily required the three level fusion procedure he performed. An ALJ found that the work injury caused the claimant’s low back pain, subsequent surgery, and related medical treatment. Consequently, the ALJ awarded medical expenses, TTD benefits and 25% PPD of the body as a whole. The employer appealed and the Commission affirmed.

HOLDING: In its first point on appeal, the employer argued that the claimant’s injury did not arise out of her employment because her injury came from a hazard or risk to which she was equally exposed in normal non-employment life. Specifically, the employer argued that the risk was bending over which was not unique to the claimant’s job. The Court disagreed with this argument and stated that the claimant was injured when squatting down, reaching into the back of a file drawer and twisting, which was a risk she would not have been equally exposed to in her normal non-employment life, and noted that the claimant was injured because she was at work, not merely while she was at work. In its second point on appeal, the employer argued that the Commission’s determination was not supported by competent and substantial evidence because the medical evidence showed that her work accident was merely a triggering or precipitating factor and not the prevailing factor in causing her medical condition and disability. The Court also disagreed with this point, because the Commission relied on Dr. Highland’s direct testimony, which the Court found constituted competent and substantial evidence. Therefore, the court affirmed.

Following Termination, Employee is Allowed a “Reasonable Time” to Leave Employer’s Premises Before Employment Relationship is Severed

In Hartman v. DJSCMS, Inc., Injury No.: 12-003592, the claimant worked as a car salesman and on his date of injury, was scheduled to work from 9:00 A.M. - 9:00 P.M. However, he was fired sometime around 4:00 P.M. Almost immediately after he was fired, the claimant slipped and fell in the employer’s parking lot. According to the claimant, after being fired he drove to the finance department to get credit for the deals that he had in process, but upon arrival he discovered that the office door was closed. He then returned to his car to get his paperwork and it was at that time that he fell. According to the employer’s GM, he had never known of a salesman who finished deals after being terminated and also believed it was unlikely that the claimant was finishing deals because he was not selling cars due to the winding down of the business. The undisputed facts were that following his termination the claimant had not closed out any deals, emptied his desk, or cleaned out/turned over the demo car he was given for personal use.

At trial, the employer argued that the claimant’s accident did not arise out of and in the course of his employment because he was fired immediately before his accident. However, an ALJ disagreed and stated that following termination the employee is entitled a “reasonable time” to leave the premises of his employer before it can be said that the relationship of the employer and employee is completely severed. Therefore, the ALJ determined that the claimant was within the course and scope of his employment when injured. Additionally, the ALJ determined that the claimant’s average weekly wage could not be fairly and justly determined by the standard calculation of his 13 weeks prior to the termination. Specifically, the ALJ noted that his sales location was in the process of being shut down, the inventory was low, the mark ups were cut and his sales were atypical. Therefore, the ALJ ordered his average weekly wage to be calculated based on all of his earnings in the 39 weeks of his employment. The ALJ further noted that the claimant’s use of the demo vehicle should be included in his gross wages because it was an economic gain received in consideration for work. Finally, the ALJ noted that Dr. Volarich was the only medical expert to opine on PPD and, therefore, he adopted Dr. Volarich’s assessment of 60% PPD of the body as a whole. On Appeal, the Commission summarily affirmed.

Fall on Icy Parking Lot Found Compensable

In Whorton v. Silgan Container, Injury No. 07-125897, the claimant arrived at work and then checked on her assigned duties for the day. As she was assigned cleaning tasks, she returned to her car to obtain gloves, which she used for her cleaning tasks. Additionally, on her way to the car, the claimant had with her a fix-a-flat to address one of the flat tires on her personal vehicle. While walking to her vehicle she slipped on ice in her employer’s parking lot and fell, sustaining injury. At a hearing, an ALJ noted that when an employee is performing an act for the mutual benefit of both themselves and the employer, an injury arising out of that activity is usually compensable even though the advantage to the employer is slight. The ALJ further noted that in instances of mutual benefit, the injury will not be deemed to have arisen out of the course and scope of employment when the indirect benefit to the employer “becomes so tenuous as to be impercetible.” In this case however, the ALJ found that the claimant was injured in the course and scope of her employment because she was not traveling to her car merely for personal business but was also acting in the employer’s interests by getting gloves from her car to perform her assigned duties. The ALJ found that the claimant sustained 40% PPD of her right ankle, 30% PPD of the right knee and 20% of the lumbosacral spine.

Finding of Employer-Employee Relationship Requires the Employee to Be in the Service and Control of the Employer

In Marty Warren (Deceased) v. David Warren, Injury No. 02-148212, the claimant was working with his father applying siding to the home of the father’s friend. The claimant was instructed by his father to remove a nail, but in the process of doing so he lost his balance and fell to the ground, sustaining fatal injuries. The sole issue in this case was whether the claimant was an employee of his father at the time of the injury. At trial, the claimant’s sister testified that he was living with her on the date of injury and he had issues with alcohol and substance abuse. She further stated that on the date of injury, she asked her father to take the claimant with him because she was going out-of-town and did not want the claimant to be alone in her home given his alcohol and substance issues.  Similarly, the father testified that he was doing his daughter a favor and allowed the claimant to tag along on the siding job. The claimant’s widow testified he had told her prior to the date of injury that he would be working on a siding job and making between $600.00 - $1,000.00. Additionally, she testified that the claimant had worked 6 - 8 jobs for his father in the past. At a hearing, an ALJ believed the testimony of the father and sister more credible and found that the father was simply helping his daughter by taking the claimant to work. The ALJ did not find the widow credible because she was a poor historian and the claimant was not living with her at the time of his injury.

On Appeal, the Commission affirmed, noting that in order to find an employment relationship, it must be shown that 1) the claimant was in the service of the alleged employer and 2) the services were controllable by the employer. Ultimately, it found that the father did not control the services of the claimant.

Eight Factors Determine Whether Worker is an Employee or Independent Contractor

In Parks v. Independent Living Center of Southeast Missouri, Injury No. 10-069477, the claimant was injured while working, but it was disputed whether or not she was an employee or an independent contractor at the time of her injury. Evidence showed that she was hired as a caregiver to administer Medicaid and home health services to disabled senior citizens know as “consumers.” At a hearing, testimony demonstrated that the alleged employer acted as a “vendor” who provided services such as orientation and training, assisting consumers by performing background checks on their caregivers, receiving Applications for Employment and necessary tax documents, and administering the payroll. Essentially, the testimony demonstrated that the alleged employer assisted caregivers in finding consumers and receiving payment but was thereafter uninvolved in the relationship between the caregiver and consumer. An ALJ found that the claimant was an independent contractor at the time of her injury, and therefore, her injury was not compensable.

On Appeal, the Commission noted that the definition of “employee” is a factual question which depends on several factors. The Court listed out eight factors, including: 1) The extent of control; 2) The actual exercise of control; 3) The duration of the employment; 4) The right to discharge; 5) The method of payment; 6) The degree to which the alleged employer furnished equipment; 7) The extent of which the work is the regular business of the alleged employer; and 8) The employment contract. The Commission found that only two of the eight factors had been satisfied and therefore, the claimant was not an employee but an independent contractor.

Claimant Bears the Burden of Proof

In Welty v. Mississippi Lime Co., Injury No. 12-040559, the claimant developed tinnitus and binaural hearing loss, which he claimed was due to repeated exposure to loud noise at his employer’s facility. The claimant’s expert, Dr. Mason, testified at a hearing that the claimant’s hearing loss could be the result of the noise or it could be the result of the claimant’s family history of hearing loss. Therefore, the ALJ determined that the claimant failed to meet his burden on the issue of medical causation. On appeal, the Commission summarily affirmed.

Job Duties Need Not Be Strenuous to Meet Burden of Proving Occupational Disease

In Szigeti v. Metropolitan St. Louis Sewer Dist., Injury No. 10-044815,the claimant worked as a file clerk full-time from 1996 through 2011. When the customers finished with the files or drawings, they placed them in a basket for the claimant to re-file. The drawings were stored in three foot tubes, and the claimant rolled them up to return them to the tube. When she was not waiting on customers, she manually moved all inappropriately stored information out of the database and put it in to the correct spot in the new database. In addition, she worked on a project to scan drawings into a digital format, which required slowly feeding the drawings into a scanner, similar to copying a piece of paper. The claimant eventually developed symptoms in her bilateral wrists and was diagnosed with bilateral carpal tunnel syndrome. At a hearing, the employer’s experts testified that her job duties were not hand intensive enough to cause her work injury. Conversely, her experts testified her injuries were due to her repetitive job duties. The ALJ found the claimant’s experts were more credible and held her injuries were compensable. On appeal, the Commission summarily affirmed.                   

Statute of Limitations Begins to Run When the Employer-Insurer Make the Last Payment on the Claim

In Tracy v. Glazders Wholesale Drug Company, Injury No. 09-013530, the claimant sustained an injury to his back on February 20, 2009. The employer initially authorized medical treatment which the claimant underwent. Dr. Kitchens, a treating physician, stated on March 31, 2009 that the claimant’s work injury was the primary factor in aggravating her spondylolisthesis. However, on June 3, 2009 the employer abruptly notified Dr. Kitchens that the claim was now being denied and no further treatment would be authorized. Although it is not specified why treatment was abruptly stopped, it appears the employer-insurer discovered a statute of limitations issue. Thereafter, he treated on his own. At a hearing, the employer argued that the claim was barred by the statute of limitations, as the report of injury was timely filed and the claimant did not bring his claim within you two year period. The claimant argued that the two year period did not begin to run until August 2010, the date that Dr. Volarich, his expert, opined he was at MMI. Additionally, the claimant argued that the period did not begin to run until the last payment was madeby his private insurer. Specifically, the claimant argued that the statute was silent as to who made the last payment on the claim and therefore, pursuant to strict construction, the period should not begin to run until the last payment was made on that claim by any entity. The ALJ disagreed with the claimant’s latter argument and found that payments made by a private insurer do not toll the statute of limitations. Additionally, the ALJ was not persuaded by the claimant’s former argument that the period for bringing his claim did not begin to run until August 2010. Consequently, the ALJ found that the Claim was time-barred by the statute of limitations because the period for bringing his claim began to run in June 2009, when the employer-insurer made its last payment on the claim. On appeal, the Commission affirmed.

Losing at a Hearing on an Accident Claim Does Not Bar Claimant From Bringing an Occupational Disease Claim For the Same Injury

In Trimmer v. Johnson Controls, Inc., Injury No. 03-147616, the claimant worked a strenuous job which required constant heavy lifting and caused aches and pains as a result. In 2003, he fell at work and sustained an injury to his shoulder. At the first hearing on this claim, testimony of Dr. Fretz was introduced by the employer which noted that the claimant did work in a strenuous position but the claimant had no specific event that caused the beginning of his shoulder pain. Based on that testimony, the ALJ found that the claimant failed to prove he suffered an accident but the ALJ went on to note that she felt the matter should be found compensable based on the claimant’s repetitive strenuous job duties.

The claimant subsequently re-filed his claim as an occupational disease and a second hearing was held. At the second hearing, the employer-insurer argued that the claim had already been adjudicated and could not be re-litigated. However, the ALJ found that the second claim was not barred by the initial claim in that it alleged an occupational disease as opposed to an accident and therefore, the evidence necessary to sustain these two claims differed. The ALJ further noted that in the initial hearing the ALJ did not make any findings regarding the occupational disease claim and as such, the second claim was not barred. Finding that the claim was not barred, the ALJ went on to find that the claimant did sustain an occupational disease as a result of his job duties and awarded benefits. On appeal, the Commission affirmed.

Minor Subsequent Injury Can Expose Employer to PTD Liability

In Gray v. Jack Cooper Transport Company and Treasurer of Missouri, Injury No.: 05-015019, the claimant had multiple pre-existing conditions. He had scarring and deformities which affected the thumb and fingers of his left hand. Additionally, the claimant had pre-existing issues with depression and anxiety, for which he had been receiving medical care since the 1980s. Finally, in the early 1990s the claimant suffered a hyperextension of his left elbow.

On June 26, 2003 the claimant suffered his first work injury to his low back for which he underwent a fusion. While still treating for his 2003 injury, he sustained another injury to his low back on January 31, 2005, which is the primary injury in this case. The claimant continued to treat with Dr. Robson, his treating physician for the 2003 injury, until he was placed at MMI in 2006. He settled his 2003 injury against his employer for 44% PPD of the body as a whole.

At a hearing for the 2005 claim, the claimant testified that he was still in pain from his 2003 injury until his 2005 injury but stated that following his 2005 injury, his symptoms were much worse. The employer-insurer argued that the claimant’s symptoms stemmed from his prior conditions, most notably, his 2003 back injury. The ALJ noted that Dr. Robson’s 2006 report, wherein he placed the claimant at MMI, made no reference to his 2005 injury or any resulting disability from that injury. The ALJ also noted that Dr. Poetz, the claimant’s expert, believed that the claimant was PTD as a combination of his work injury and his pre-existing conditions. Ultimately, the ALJ found Dr. Robson more credible and determined that the claimant’s ongoing disabilities were a result of his 2003 accident and not the result of his 2005 injury. Moreover, the ALJ found that the claimant did not suffer a new injury in 2005 because his alleged strain was merely the product of the on and off exacerbations of his 2003 injury. Therefore, the ALJ determined that the 2005 work injury was not compensable.

The Commission overturned the ALJ’s finding and determined that the claimant and his experts were more credible. Moreover, the Commission determined that the claimant was PTD as a result of the 2005 work accident and his pre-existing disabilities. The Commission stated that the 2005 work accident caused a 20% PPD to the body. Additionally, the Commission imposed liability on the Second Injury Fund finding that each of the claimant’s aforementioned pre-existing conditions were serious enough to constitute hindrances or obstacles to employment.

To Impose Liability Against the Fund, Claimant’s Prior Injuries Need Not Be at MMI at Time of Primary Injury if Claimant Seeks PTD Benefits

Lewis v. Treasurer of the State of Missouri, Case No. ED100657 (Mo. App. Ct. 2014)

FACTS: The claimant sustained a work injury in 2007. He also had several prior injuries, one of which was a 2004 injury to his left shoulder and another was for a 2006 carpal tunnel syndrome. The claimant was not placed at MMI for his 2004 or 2006 injuries until after his primary injury, which was the 2007 injury. At a hearing, the claimant testified regarding his injuries and stated that the symptoms caused by his 2004 shoulder injury never improved with treatment and had never completely resolved. An ALJ found that the claimant was PTD as a result of his primary injury and his pre-existing conditions, and imposed liability against the Fund. The Fund appealed to the Commission. On Appeal, the Commission affirmed. The Fund’s primary argument on appeal was that the Commission erred in its analysis because it included pre-existing disabilities from the claimant’s 2004 left shoulder injury and his 2006 carpal tunnel injury, which could not be considered because those injuries had not reached MMI at the time of the primary injury.

HOLDING: Addressing the Fund’s first point, the Appellate Court noted that pre-existing disabilities need not be at MMI in order to be considered for PTD benefits. Specifically, the Appellate Court noted that determining the specific amount of disability from pre-existing injuries is relevant for the calculation of PPD benefits, but not PTD benefits. In order to establish liability against the Fund for PTD, the claimant need only show the extent or percentage of the PPD resulting from the primary injury and then prove that a combination of the primary injury and the pre-existing disability resulted in PTD.                                                         

Test For Fund Liability is the Potential That the Pre-Existing Condition May Combine with the Work Injury to Result in Greater Disability

In Broekhoven v. Treasurer of Missouri, Injury No. 07-012863, the claimant sustained a work injury involving his lumbar spine in early 2007. Prior to his work injury, the claimant had been diagnosed with degeneration and a herniated disc in the lumbar spine for which surgery had been recommended but the claimant declined to undergo. He settled his claim against the employer and proceeded to a hearing against the Fund. At a hearing, the ALJ determined that the claimant was PTD solely as a result of the January 2007 work injury. The claimant appealed, arguing that he was PTD, but not as a result of the work injury alone, rather, as a result of a combination of the work injury and his pre-existing disabilities.

On Appeal, the Commission stated that the test for Fund liability is the potential that the pre-existing condition may combine with a work-related injury in the future so as to cause a greater degree of disability then would have resulted in the absence of the pre-existing condition. The Commission stated that the claimant had serious medical conditions prior to his work injury, and noted that all of the testifying experts agreed that the claimant did have some pre-existing disability. Therefore, the Commission reversed the ALJ’s Award, and found that the claimant was PTD as a result of the work injury and his pre-existing disabilities.

Exclusivity of Division’s Jurisdiction Should Be Raised as an Affirmative Defense

Pierce v. Zurich American Insurance Company, Case No. WD77095 (Mo. App. Ct. 2014)

FACTS: In 2009 the claimant sustained a knee injury while working for his employer. The employer/insurer’s treating physician opined that the claimant would ultimately need a total knee replacement, but it would not be due to his work injury. Conversely, the claimant’s treating physician opined that he would need a total knee replacement which would be related to his work injury. Ultimately, in May 2012 the parties entered into a settlement for 26% of the knee with supplemental language agreeing to leave any medical treatment provided in Section 287.140.8 open for one year after settlement. For reference, Section 287.140.8 is the prosthetics clause commonly referred to as the Reactivation Provision. In June 2012, one month after settlement, the claimant requested a knee replacement. When this treatment was denied, the claimant filed a civil suit requesting that the trial court compel the insurer to provide knee replacement surgery. In response, the insurer filed a motion to dismiss arguing that the trial court lacked subject matter jurisdiction because the Division had exclusive jurisdiction. The trial court granted the claimant’s motion finding that the Division did have exclusive jurisdiction.

HOLDING: On Appeal, the Court found error in the trial court’s decision to dismiss for lack of subject matter jurisdiction noting that the issue was not whether subject matter jurisdiction existed but whether the claimant had a statutory right to proceed in civil court. The Court looked to the stipulation language noting that the claimant requested a knee replacement, a prosthetic device, which would be covered under the Reactivation Provision. Therefore, the Court found that the Reactivation Provision applied and the exclusive remedy for the claimant is through workers’ compensation. The Court also noted that the proper way to contest the claimant’s civil suit would have been for the insurer to file, as an affirmative defense, a motion to dismiss for failure to state a claim upon which relief could be granted. 

Civil Claim For Co-Employee Negligence Requires “Something More”

Peters v. Wady Industries Inc. and Terrio, Case No. ED100699 (Mo. App. Ct. 2014) 

FACTS: On September 24, 2008, the claimant was injured when a stack of dowel baskets fell on him while he was unloading them at a construction site. He pursued a workers’ compensation claim and filed a civil action against his supervisor, Mr. Terrio, alleging that Mr. Terrio ignored multiple warnings from employees concerning safety hazards posed by the stacked dowel baskets.Specifically, the claimant argued that his injury was caused by Mr. Terrio’s failure to deliver the dowel baskets in a safe manner. Mr. Terrio filed a Motion to Dismiss for Failure to state a claim upon which relief could be granted, on the basis that the claimant’s exclusive remedy lied in Missouri Workers’ Compensation Law. Specifically, Mr. Terrio argued that the claimant’s petition failed to allege any conduct by Mr. Terrio outside the scope of his employer’s non-delegable duty to provide a safe work place. In other words, Mr. Terrio argued that the claimant failed to show that Mr. Terrio was personally liable because he had not engaged in any improper conduct that the employer did not have a duty to prevent. The trial Court agreed and granted the Motion to Dismiss. The claimant appealed.

HOLDING: The Court began by noting the historical changes this area of the law has recently undergone. Prior to 2005, co-workers were liable to one another for mere negligence. However, in 2012, the legislature amended that approach and codified the “something more” doctrine. Under that doctrine, for a co-worker to be personally liable to another worker, that co-worker must have engaged in some affirmative, purposeful, and dangerous act outside the scope of the employer’s normal duties to keep the workplace safe. Worded differently, the co-worker/defendant’s conduct must be independent of his employer’s duties. The Court stated that since Mr. Terrio was a supervisor, he was the employee chosen to implement the employer’s duty to provide a reasonably safe workplace and general failure to fulfill that duty results in no actionable negligence. Therefore, the Appellate Court held that the trial court did not err in dismissing the plaintiff’s petition for failure to state a claim on which relief could be granted.