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Menard, Inc. and Zurich American Insurance v. James Jones Jr., No. 2-579/12-0027

[(1) Substantial evidence supports Commissioner's decision that a running healing period was appropriate; (2) Merely stating that an employee is working part time hours is not enough to invoke the rate calculation set forth in 85.36(9).  Evidence as to the hours worked by similarly situated full time employees in the same field is required.]

 The Claimant, James Jones Jr., was a recipient of social security benefits who began employment at Menards stocking shelves. He was employed four hours a day for five days and was considered a part time employee. Six weeks after he began his employment the Claimant injured his back.

Many years prior, the Claimant had injured his low back with another employer. He underwent surgery for the injury and was ultimately given lifting restrictions. This was not disclosed on his Menards application as he stated he felt better than he had in a decade. After his injury at Menards the Claimant saw an orthopedic surgeon who saw no need for surgery and referred him to a pain specialist. This specialist found the injury to be an exacerbation of his previous injury. Once Menards learned of this they refused to approve further treatment.

The Claimant then filed a petition with the Workers’ Compensation Commissioner alleging an injury to his low back. Menards stipulated that the Claimant’s injury arose out of and in the course of his employment but disputed the permanency of the injury and his rate of compensation. At hearing, the deputy found that the Claimant had not yet reached MMI and awarded him healing period benefits. This was affirmed by the Commissioner and eventually appealed to the district court.

The district court affirmed the ruling that the Claimant had yet to reach MMI but reversed the agency’s rate calculation under section 85.36(9) finding that there was no evidence to support the application of the provision. Both the employer and the Claimant appealed the ruling of the district court.

The Court first examined the issues presented to it, whether the Claimant had reached MMI and whether the rate was correctly calculated, and noted that both fell under the Court’s substantial evidence standard of review; meaning the rulings would be upheld if substantial evidence was found to support them.

The Court then began its analysis of the issue of whether the Claimant had reached maximum medical improvement. The Court noted that the finding of the agency rested upon two independent medical examinations which opined the Claimant required further treatment and was not at MMI. Thus the Court found the finding supported by substantial evidence. These opinions had been provided by both an examiner chosen by the Claimant and one chosen by the employer. Thus the finding of that MMI had not been reached was affirmed.   

The Court then turned its attention to the issue of the Claimant’s weekly compensation rate. The agency in making its rate determination relied upon section 85.39 of the Iowa Code which provides:

If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury.

The district court had found that substantial evidence did not support the application of this provision. The district court had stated:

The provision found in subsection 9 requires a finding that the employee was earning nothing, or less than the usual full-time employee in that field. . . .

. . . [T]here is no evidence in the record of the usual weekly earnings of other workers in [the Claimant’s] field. . . . The Commissioner relies upon the fact that Jones worked four hours per day, as shown by Menards’s own records. The number of hours worked is not determinative of this issue. . . . The true inquiry is into wages earned. No evidence on this subject is discussed by the commissioner or contained in the record.

The Court noted that invoking section 85.39 required more than the Claimant’s claims that he was a part time employee. Indeed, the Court noted that recently the Supreme Court of Iowa emphasized that a finding of part time employment is not sufficient to invoke 85.39. The Court noted that the Supreme Court had held that 85.39 distinguished between full and part time employees on the basis of weekly earnings and not the number of hours worked per week. Thus, a factual finding must be made as to whether the employee earns no wages or  earns less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality.

The Court went on to state that such a finding had not been made in this case as the agency simply found that the Claimant worked four hours per day and was clearly a part time worker. The Court did not find this to be enough to invoke section 85.39 based on previous Iowa Supreme Court precedent. Thus the finding of the district court was affirmed and the case was remanded to the agency for a recalculation of the Claimant’s healing period benefits under section 85.36.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Case Report - Bowens v. Allied Warehousing Services, Inc., (W. Va. June 15, 2012)

By: Dill Battle

The Supreme Court of Appeals of West Virginia recently decided that a second employer can be considered a “special employer” giving rise to special employment status for workers’ compensation immunity purposes.  The specific issue of whether a temporary employer can obtain workers’ compensation immunity protection from common law suits based upon the commonly accepted “special employer” rule was an issue of first impression in West Virginia.  Justice Benjamin wrote the June 15, 2012 opinion in Bowens v. Allied Warehousing Services, Inc., Case No. 11-0210, where the West Virginia Court joined the majority of jurisdictions and found that a second employer meeting the requisite criteria set forth in 3 Larson’s Workers’ Compensation §67.01 (2011 ed.) may be deemed a special employer for workers’ compensation immunity purposes.

            Bowens worked for a temporary employment agency, Manpower, and was assigned to operate a forklift for Allied Warehousing.  While operating the forklift, Bowens suffered injuries and filed a workers’ compensation claim listing Manpower as his employer.  Allied had no involvement in the workers’ compensation proceeding.  After Bowens’ temporary total disability benefits were suspended by an administrative law judge decision, he sued Allied asserting various claims including negligence, unsafe workplace, negligent hiring, workers’ compensation fraud and common law fraud.  The Court affirmed the Circuit Court of Wayne County’s dismissal of the workers’ compensation fraud and common law fraud claims and granted summary judgment to Allied finding it to be a special employer of Bowens for the purpose of workers’ compensation immunity.

The Court adopted the widely accepted test set forth in 3 Larson’s Workers’ Compensation §67.01 (2011 ed.) and by the United States Fourth Circuit Court of Appeals in Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir. 1980).  The test provides three basic elements which must be satisfied to determine whether a second employer is a special employer giving rise to a special employment status for workers’ compensation purposes: (1) whether the employee has made a contract of hire, express or implied, with the second employer; (2) whether the work being done is essentially that of the second employer; and (3) whether the second employer has the right to control details of the work.  Bowens at pp. 23-24.  When all three of the above conditions are satisfied in relation to both employers, both employers will be liable for workers’ compensation and both will have the benefit of the exclusivity defense of tort claims. 

            Additionally, when analyzing the factors as they applied to the facts of the case, the Court found that whether an individual is a special employee for workers’ compensation purposes is generally a question of fact.  However, a court may find special employment status as a matter of law where the pleadings, depositions, answers to interrogatories, together with affidavits establish that these is no genuine issue of material fact to the contrary.  Through established facts that Allied controlled all the details of Bowens’s day to day work, the Court found that Allied’s authority to exercise complete supervision and control over Bowens while he was on Allied’s premises established Allied as Bowens’s special employer within the meaning of West Virginia’s workers’ compensation statutes.

Market Trends for West Virginia – June 1, 2012

By: Mary Jane Pickens

According to the National Council on Compensation Insurance, which manages the nation’s largest database of workers compensation insurance information and is the statistical agent for the workers’ compensation system in 33 states, the market “descriptor” for 2012 is “conflicted,” following “precarious” in 2010 and “deteriorating” in 2011.  At its Annual Issues Symposium in May 2012, NCCI presented considerable information on trends in property and casualty lines generally, and workers’ compensation specifically. While claim frequency went up by 3% in 2010, that appears to be an anomaly.  In 2011 claim frequency continued to drop.  Net written premium increased in NCCI states by 7.5%.  Of this amount, 3% represented an increase in employer wages.  Wages are now at pre-2008 levels, but with fewer workers. And while fewer people are unemployed, the length of unemployment is longer. 

NCCI filed for more loss cost increases in states than it did for decreases.  The largest increase in loss cost filings was 10.5% in Virginia, and the largest decrease was in -9.3% in Alabama (West Virginia was the second largest decrease with -8.1%).  Indemnity claim costs increased modestly in 2011 (2%), as did medical costs (4%).  The combined loss ratio in 2011 for private carriers is about 115%; for residual market is about 121%; and for state funds it is running in the 130’s.  In the residual market, the largest growth by policy size is seen in risks exceeding $100,000.00.  The first quarter of 2012 shows an even more dramatic uptick in the residual market among these large risks. 

On May 21, 2012, Commissioner Michael D. Riley addressed the Insurance Commissioner’s 3^rd Annual West Virginia Workers’ Compensation Educational Conference.  Commissioner Riley discussed several areas of focus at the OIC for 2012, particularly Failure to Timely Act (“FTA”) petitions.  The OIC is analyzing the FTA data and will investigate carriers and administrators that have repeated failures to timely act as required by the statutes and regulations in West Virginia.  Commissioner Riley stated that he wants to see FTA petitions eradicated.  Commissioner Riley also discussed market conduct studies and self-insurer audits that the OIC is conducting.  According to Commissioner Riley, one area of focus in these examinations and audits will be unreasonable denials under W. Va. Code § 23-2C-21(c) and W. Va. C.S.R. § 93-1-19.

It should be noted that at the OIC’s Educational Conference and in her latest report to the Industrial Council, Chief Administrative Law Judge Rebecca A. Roush presented statistics on claimants’ FTA petitions.  In 2010, 87 such petitions were filed, and in 81% of these matters, the Office of Judges (“OOJ”) concluded that the carrier/TPA did not act timely.  Medical treatment and compensability decisions were the most common source of the petitions in 2010.  In 2011, 88 such petitions were filed.  While only 67% have resulted in a finding that the carrier/TPA did not timely act, 25% were still pending resolution by the OOJ at the time of the report.  Compensability decisions were the most common source of the petitions in 2011, followed by a comparable number of FTA petitions on medical treatment and failure to comply with decisions by the OOJ, the Board of Review, and the West Virginia Supreme Court of Appeals.

In addition, Judge Roush carefully reviewed all of the information that a claims adjuster must include in an order for it to be considered in compliance with legal requirements in West Virginia.  This has been an ongoing area of concern for the OOJ and the Insurance Commissioner.  Finally, Judge Roush covered the law surrounding a claimant’s right to attorney fees in the event of an unreasonable denial of compensability, medical treatment or TTD, however statistics were not offered.  

West Virginia Supreme Court of Appeals – Case Law Update June 1, 2012

By: Dill Battle

The January 2012 Term of the West Virginia Supreme Court of Appeals ends June 30.  The Court produced one reported workers’ compensation decision in the January term.  However, the Court was very active and issued 105 Memorandum Decisions in the workers’ compensation practice area.  In a presentation to the West Virginia Self Insurers Association on May 10, 2012, Justice Brent Benjamin noted that workers’ compensation appeals were 532 in 2011 (compared to the high-water mark of 2894 petitions in 2007).

On March 22, 2012, the Court issued a new reported decision on the addition of psychiatric diagnoses as a secondary condition to a compensable injury.  In Hale v. WVOIC and Rockspring Development, Inc., 724 S.E.2d 752 (W.Va. 2012), the Court continues its recent trend of weakening the Rule 20 medical management guidelines.  The Court addressed whether a claimant must get prior authorization from a claims administrator before seeking an initial psychiatric consultation.  In a unanimous opinion, the Court held that W.Va. C.S.R. § 85-20-12.5(a) was invalid because it is in direct conflict with W.Va. C.S.R. § 85-20-9.10(g) and W.Va. Code § 23-4-1(a), and because it requires the claims administrator to make a psychiatric treatment decision without having the benefit of an expert psychiatric report, as required by W.Va. C.S.R. § 85-20-12.4. Hale, 724 S.E.2d at 757.  The Court provided a roadmap for claims administrators when it held that W.Va. C.S.R. § 85-20-12.4 sets forth a three-step process that must be followed when a claimant is seeking to add a psychiatric disorder as a compensable injury in his/her workers' compensation claim: (1) the claimant's treating physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure described in W.Va. C.S.R. § 85-20-12.4; and (3) the claims administrator, aided by the psychiatrist's report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim.  Id.

The Hale decision is a pragmatic decision based on the facts of the case although it seems like a relatively light burden for a treating doctor who suspects a psychiatric consequence to seek authorization for a consultation.  In that sense it is no different than asking for a neurosurgical or orthopedic referral.  However, carriers, self-insured employers, and claims administrators are still allowed to make the ultimate decision about whether to add the psychiatric diagnosis aided by a detailed psychiatrist's report.

Federal Black Lung Update

By: Karin Weingart

On March 26, 27, and 28, 2012, the United States Supreme Court heard oral arguments on what is probably the most controversial piece of legislation in recent history, the Patient Protection and Affordable Care Act (PPACA).

Oral arguments covered four key legal issues stemming from the PPACA: 

The third listed issue has particular relevance to anyone involved in federal black lung claims.  Section 1556 of the PPACA reinstated the “15-year presumption” of Section 411(c)(4) of Title IV of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §921(c)(4), for claims filed after January 1, 2005, that were pending on or after March 23, 2010.  The presumption provides that if a claimant establishes at least fifteen years of qualifying coal mine employment, and that he has a totally disabling respiratory impairment, there is a rebuttable presumption that he is totally disabled due to pneumoconiosis. The PPACA also revived Section 422(l) of the Act, 30 U.S.C. §932(l), which provides that an eligible survivor of a miner who was receiving benefits at the time of his or her death is automatically entitled to survivor’s benefits without having to establish that the miner’s death was due to pneumoconiosis. 30 U.S.C. §932(l).

Although constitutional arguments specific to Section 1556 of the PPACA have failed, if the US Supreme Court rules that one or more of PPACA’s key provisions is unconstitutional or otherwise illegal and that the lack of a severability clause therefore defeats the entire bill, the black lung amendments will also fail.  A final decision may be published in June.

[Note - the Supreme Court ruled on June 28, 2012, in the case of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services.  The Court found constitutional most of the provisions of the PPACA.]

West Virginia Legislative and Regulatory Update – June 1, 2012

By: Dill Battle

At its March 22, 2012 meeting, the Workers’ Compensation Industrial Council approved a change to W.Va. C.S.R. § 85-11, “Employer Default, Enforcement, Collections and Related Matters.”  After a comment period, several non-substantive changes were made by the OIC. 

Also at the March 22 meeting Commissioner Riley reported to the Industrial Council regarding a comparison between the Voluntary Market and Self-Insured Market.  He compared market share for the private market to the self-insurance market.  Based on a report of policy accounts from NCCI’s Proof of Coverage System, Commissioner Riley reported that at the end of 2011 there were 34,000 workers’ compensation policies and 90 active self-insureds in West Virginia.  Also, the estimated average employee accounts cover 590,000 employees by the private market and 80,000 employees for self-insureds in West Virginia.  Finally, the private market provides about $21 billion in wages compared to $3.5 billion payroll for self-insureds. 

On May 29, 2012, Insurance Commissioner Michael Riley issued Informational Letter #181 that summarizes 2012 insurance legislation from the 20012 Regular Session of the West Virginia Legislature.  In an election year, the session was quiet with respect to workers’ compensation issues. 

114 CSR 42 – Continuing Education for Individual Insurance Producers (Amended Rule – Effective April 20, 2012)

            This rule, which sets forth the continuing education requirements for producers, previously established the 2-year reporting period as beginning on July 1 of every even-numbered year.  This rule amendment allows the Commissioner to establish different 2-year reporting periods, which in turn permits the period to be set to coincide with licensing periods that are tied to each producer’s birth month.  According to the Commissioner, this change brings West Virginia into compliance with uniformity and reciprocity standards adopted by the NAIC that provide that “the biennial CE compliance period shall coincide with the producer’s license continuation date.”

 114 CSR 94 – Workers’ Compensation Insurance for State Agencies (New Rule effective April 20, 2012)

            BrickStreet, as the successor to the state-run workers’ compensation system, was required to provide coverage to government agencies since 2006, but it was authorized to refuse to renew the policy of any such agency beginning in July 2011.  See W.Va. Code §23-2C-15(b).  In 2011, the Legislature made the Insurance Commissioner responsible for “managing the workers’ compensation risks” of all “executive agencies” (i.e. those under a cabinet secretary) and certain other state agencies.  See W.Va. Code §33-2-21a(b).  This new rule (initially promulgated as an emergency rule) includes conditions for participation by and removal of “discretionary participants” (non-executive state agencies), provides for an annual “open enrollment” period during which non-executive agencies may enroll, and permits the Commissioner to require the execution of a participation agreement.

West Virginia Supreme Court’s Access to Justice Commission

By: Dill Battle

The Workers’ Compensation Subcommittee of the West Virginia Supreme Court’s Access to Justice Commission continues its study of several areas related to access to the workers’ compensation system for indigent and pro se claimants.  At its April 24, 2012 meeting the committee discussed proposed changes to W.Va. C.S.R. § 85-1 concerning access to file materials.  The Committee is also studying recovery of attorney fees in medical treatment litigation which is currently not allowed in W.Va. Code § 23-5-16.

For further inquiries regarding West Virginia law contact Mr. Battle at (304) 340-3823 or at dbattle@spilmanlaw.com.

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Decostar Industries, Inc., et al. v. Juarez

Factual findings of the State Board of Workers' Compensation will be upheld if supported by any evidence, and the Board's ruling will not be reversed on appeal based solely on the facts.

The record reflects Ms. Sonia Juarez began working on Decostar's production line in 2006.  Her duties included moving automotive bumpers weighing approximately 15 pounds from the floor to a chest-level bench; using a blade to cut two holes in them; sanding them; placing them at a separate work station; and later placing them into a mold.  In August 2009, she began to experience pain in her right shoulder and arm, and reported it to her employer.  Because Decostar did not offer medical treatment, she saw her own general practice physician, Dr. Gonzalez, who referred her to an orthopedist, Dr. Anthony Colpini.  Dr. Colpini, on January 20, 2010, placed Juarez on work restrictions.  He concluded that her injuries, while not caused by work, were aggravated by her job duties.

Ms. Juarez resigned on April 13, 2010 because of the injury to her right shoulder.  She saw Dr. Robert Karsch  who diagnosed her with, among other things, rotator cuff tendinopathy and impingement syndrome, finding that the direct cause of her shoulder injury and pain was the repetitive nature of her job, as opposed to being an aggravation of a pre-existing condition.  Dr. Duncan Wells, on behalf of Ms. Juarez, issued an opinion agreeing with Dr. Karsch that the injuries were a direct result of her job duties.

After a hearing, an administrative law judge (“ALJ”) concluded Ms. Juarez aggravated a long-standing right shoulder condition by performing her repetitive job duties; but she was not entitled to temporary total disability benefits from the date of her resignation because light-duty work remained available to her; she was not entitled to change her treating physician from Dr. Colpini to Dr. Karsch; and Decostar was only responsible for MRI expenses.  Juarez appealed, and the Board's appellate division adopted the ALJ's decision.  Juarez then appealed to the superior court, which, after a hearing, found in her favor, reversing the findings of the Board's appellate division.

On appeal to the District Court, Decostar argued the trial court's decision to designate the claim as a new injury rather than an aggravation of a pre-existing injury resulted from its improper reinterpretation of evidence and misapplication of the standard of review.

The ALJ in the case chose to believe Dr. Colpini, although his testimony was contradicted by other evidence.  The District Court ruled because courts reviewing a decision of the Appellate Division are not authorized to weigh the evidence in the first instance or substitute their own findings of fact for those of the Appellate Division, the superior court had no authority to interfere with the decision of the Appellate Division.  The ALJ and appellate division were authorized to conclude Ms. Juarez had a pre-existing condition that was aggravated by her job duties.  Thus, the trial court erred when it found that the record contains “no evidence” that Juarez suffered from medical conditions that predate her work for Decostar.  We reverse.

The District Court reversed the Superior Court's ruling and upheld the ALJ and the Appellate Division's denial of Ms. Juarez's claims.

671260.1

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Michael Caputo v. ABC Fine Wine & Spirits

On March 3, 2010, Claimant, an electrician for the Employer, fell and hit his head on the floor while cutting down shelving with a saw in the Employer's store.  Claimant was diagnosed with left temporal hemorrhage, seizure disorder possibly secondary to the left temporal hemorrhage, and toxic encephalopathy secondary to the left temporal hemorrhage.  There was no dispute Claimant was on the Employer's premises and performing his job duties when injured.

Claimant filed a petition for benefits seeking a determination that the accident was compensable, TTD benefits, penalties, interest, attorney's fees, and costs.  The Employer/Carrier (E/C) denied the claim on the basis that Claimant's fall resulted either from a pre-existing or idiopathic condition.

Although Claimant recalled working that day, he had no recollection of how the accident occurred.  Claimant's independent medical examiner (IME) opined that, rather than a seizure or fainting spell, Claimant's head impacting the floor caused Claimant's closed-head injuries.  The doctor was unable to state within a reasonable degree of medical certainty whether any factor related to employment caused the fall.  The E/C's IME also opined that the blow to Claimant's head was from the floor, and not the fall, and caused his brain to hemorrhage.  In February, 2008 Claimant fell in the shower, resulting in a 10-second loss of consciousness, head trauma, and concussion.

The JCC denied compensability of Claimant's injury.  The JCC found that no objective medical evidence supported a finding that the work performed caused Claimant to fall because "neither [IME] could opine with certainty whether the seizure precipitated the fall or occurred as a result of the fall."  Although the JCC specifically rejected the E/C's defense that Claimant had a pre-existing condition which predisposed him to falling, the JCC found the Claimant's fall was idiopathic, and was not caused by the employment.

The First District held that in the absence of any evidence which could support a finding there were competing causes of Claimant's accidental injuries, the JCC erred in ruling his injuries were not compensable.  It was undisputed Claimant's closed-head injuries resulted from Claimant's head impacting the floor while Claimant was removing shelving from the Employer's store.  Further, the JCC found Claimant had no pre-existing conditions which may have caused Claimant to fall.  In the absence of competing causes of Claimant's accidental injuries, the Court found the Claimant satisfied the major contributing cause requirement when evidence showed he was removing shelving in the Employer's store at the time of the accident and suffered closed-head injuries as a result of the accident.

In the absence of any other ascertainable cause, Claimant established a sufficient connection between his work and the accident in question by producing evidence that he was cutting down shelving with a saw in the Employer's store, performing one of his job duties.  Thus, the JCC erred in ruling that Claimant's injuries were not compensable.

668686.1

L.D. 1913 represents the first significant amendment of the Maine Workers’ Compensation Act in twenty years, and a much lauded provision of the new law is the amendment of Section 205(9)(B)(2).  As it read prior to amendment, an Employer/Insurer could successfully establish the right to terminate payment of indemnity benefits due to the running of the 520 week period, but be compelled to continue paying indemnity benefits,  Decree notwithstanding, because Section 205(9)(B)(2) specifically directed an employer/insurer to continue paying benefits during the pendency of an appeal.  As one can imagine, ever losing employee appealed the Decree, and so continued the flow of indemnity for as long as it took the Law Court to reject the appeal.

Making matters worse, the right to recover “overpayments” paid pending appeal, found under 39-A M.R.S.A. Section 324(1), exists only for employers/insurers who are paying some level of benefits pursuant to an award of benefits.  So for an employer/insurer who successfully reduces the level of partial indemnity but has to continue paying the pre-Decree level pending the outcome of the appeal, there is a right to recover the overpayment made during appeal, but for an employer/insurer who has prevailed in establishing the cap and terminating indemnity payments, there is no right to recover the windfall to the employee.

L.D. 1913 has fixed this problem by amending the language of Section 205(9)(B)(2) to now allow suspension of indemnity benefits as soon as the Hearing Officer rules on the petition.  An employer/insurer is also now specifically permitted to reduce or discontinue benefits pursuant to a  Decree pending a  motion for further findings of fact or pending an appeal.   These amendments are effective as of August 30, 2012, so any matter decided on or after that date involving a determination of the applicability of the cap will be governed by this new, much more reasonable and business-friendly provision.

MISSOURI WORKERS' COMPENSATION CASE

LAW UPDATE

APRIL 2012-JUNE 2012

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

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

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

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

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

Claim Denied because Claimant Failed to Prove He Sustained an Accident

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employer Not Liable to Replace Prosthesis

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

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

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

Falling Off Shoe While At Work Not Compensable

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

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

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

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

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

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

Stipulations by Parties at Hearing are Controlling and Conclusive

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

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

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

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

Claimant Found Credible Therefore Statute of Limitations was 3 Years

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

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

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

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

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

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

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

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

COMMISSION DECISIONS

Old Law 

Claimant Could Medically Return to Work Therefore No TTD Owed

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

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

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

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

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

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

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

New Law

Occupational Disease is a Subsequent Compensable Injury and Triggers SIF Liability

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

Claim Denied Because Witness Testimonies Inconsistent with Claimant's Testimony

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

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

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

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

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

Claimant Not Entitled to Total Knee Replacement When Tillotson Applied

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

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

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

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

Climbing Stairs Into Work In Course of Employment

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

Claim Denied Because Claimant Not Employee or Statutory Employee

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

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

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

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

Insurer Did Not Have to Pay Costs to Employer and Claimant

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

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

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