State News : Missouri

                                              Simon Law Group, P.C.

                          701 Market Street, Suite 340, St. Louis, MO  63101

                                                      314-621-2828

            MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                      October 2024 – December 2024

Claimant Has Burden to Prove Medical Causation Using “Prevailing Factor” Standard Based on Entire Medical Testimony

Fernandez v. Smithfield Foods, Inc., Case No. WD86421 (Mo. App. 2024)

FACTS: Claimant was walking down the stairs when he lost his footing. He was able to keep himself upright while holding onto the railing, but his left foot “skidded” down three steps. Two days later he was seen at Concentra and diagnosed with a strain of his left knee. The claim was denied and claimant sought medical treatment on his own and underwent an MRI which revealed severe lateral patellofemoral osteoarthritis in his left knee.

Subsequently, a hardship hearing was held. Dr. Z. performed a medical evaluation at claimant’s request and concluded that claimant had not yet reached MMI and that additional treatment would be required. During his deposition, Dr. Z. testified that it is not unusual for a person with patellofemoral osteoarthritis to be asymptomatic but then to develop pain after an incident. Dr. Z. testified that claimant’s condition was the result of the work accident.

Dr. S., an orthopedic surgeon, the employer’s expert testified that claimant’s arthritic changes, combined with his underlying obesity, are likely the source of his persistent difficulties and problems. Dr. S. determined that the arthritic changes to claimant’s left knee preexisted the accident and that the symptoms were “aggravated at the time of the incident”, but that the arthritis itself was not caused by or worsened by the work accident. Dr. S. further opined that claimant had 0% PPD as a result of the accident and he had reached MMI.

The ALJ issued a Temporary Award and found that the accident aggravated claimant’s underlying preexisting condition. The judge ordered employer to provide claimant with additional medical care. Employer appealed to the Commission and reversed the ALJ and denied compensation.

The Commission focused on whether the accident was the prevailing factor resulting in the claimant’s injury. The Final Award found that neither Dr. Z. nor Dr. S. opined that claimant’s work injury was the prevailing factor in causing claimant’s left knee pain and discomfort. The Commission concluded because Dr. Z. “vaguely described” the condition of claimant’s left knee as “pain and discomfort due to inflammation”, Dr. Z’s report and testimony did not establish that the accident was the prevailing factor causing both claimant’s medical condition and disability. Therefore, the Commission found that claimant failed to meet his burden on the issue of medical causation and denied compensation. Claimant appealed.

HOLDING: The Court pointed out that claimant had the burden of proving that he was entitled to workers’ compensation under Chapter 287. As such, the claimant had the burden to prove both: (1) that he suffered an accident, as defined as “an unexpected traumatic event or unusual strain. . .”; and (2) that he suffered an injury, defined as “an injury which has arisen out of and in the course of employment.” These definitions further make clear that “an injury is not compensable because work was a triggering or precipitating factor.” Further, an injury arises out of and in the course of employment “only if the accident was the prevailing factor in causing both the resulting medical condition and disability.”

The Court noted prior precedents that “[t]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation, and not substantial evidence.” The Court stated that the Commission considered the competing expert opinions as to causation, and then accepted Dr. S’s opinion as credible and persuasive in establishing that the cause of the current condition of claimant’s left knee were the arthritic changes combined with his obesity, not the work incident. Therefore, the Court affirmed the Commission’s decision.

Routine Performance of Duties for Employer’s Usual Business Activities Qualified Claimant as a Statutory Employee

Montgomery v. Cores Lab Structures, Inc., Case No. WD86910 (Mo. App. 2024)

FACTS: Claimant was loading a concrete beam onto a trailer when a Cores Lab employee hit the beam with a Cores Lab vehicle, striking claimant in the back and throwing him from the trailer. Claimant suffered injuries to his back and knee. Claimant had not sought nor recovered workers’ compensation benefits from Cores Lab for his injuries.

On the day of the incident, claimant was working as a driver for Becker Trucking. He used a tractor which was owned by Becker to haul and deliver Cores Lab products in accordance with a contract between Becker and Cores Lab. Pursuant to this contract, Becker had been occasionally hired by Cores Lab since 2016 to provide supplemental drivers as needed when Cores Lab did not have enough truck drivers of its own. In the absence of the contract with Becker, Cores Lab would have had to hire additional truck drivers. Claimant was compensated for each job he completed for Becker as an independent contractor.

Subsequent to the accident, claimant filed a civils suit against Cores Lab alleging negligence. Cores Lab argued that the claimant was a “statutory employee” of Cores Lab and that the exclusive remedy for his injuries was workers’ compensation.

Claimant appealed the trial court’s finding that Cores Lab was a statutory employee, and that Cores Lab was liable under the Missouri Workers’ Compensation Law for claimant’s injuries.

HOLDING: The Court noted that exclusive liability of an employer under the Workers’ Compensation Law extends to “any person who has worked under contract on or about his premises which is an operation of the usual business which he there carries on.” Thus, any person who qualifies as a “statutory employee” is exclusively entitled to recovery under the workers’ compensation law for injuries arising out of and in the course of a statutory employer’s business irrespective of negligence.

Claimant was performing work for Cores Lab under contract, and he was injured on Cores Lab’s premises, two of the three essential elements of statutory employee status. Claimant asserted, however, that the work he was performing was not an operation of usual business of Cores Lab.

The Court noted that an employer’s “usual business” is defined as those activities (1) that are routinely done (2) on a regular and frequent schedule (3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time and (4) the performance of which would require the statutory employer to hire employees absent the agreement.

The Court stated that here, claimant argued that the work he was performing was not in Cores Lab’s “usual business” because Becker was only called upon by Cores Lab from time to time as needed. He argued that this rendered the work he was performing to be “episodic” and “sporadic”. The Court disagreed.

Cores Lab stated that hauling the concrete beams it makes to its customers is routinely done by Cores Lab on a regular and frequent basis. Claimant admitted that Cores Lab routinely, over the course of many years, contracts with Becker to haul its beams. Finally, if Cores Lab did not have its agreement with Becker, it would have to hire more in-house permanent truck drivers, a “fact” relevant to the fourth part of the definition of “usual business of an employer”. The Court affirmed the trial court’s judgment.

Settlement Agreements for Repaying Subrogation Apply Only to the Balance of the Recovery Per the Statutory Provision

Wolk, et al., v. Grinnell Mutual Reinsurance Co., Case No. ED112371 (Mo. App. 2024)

FACTS: Claimants, Wolk and Meyer, were injured while working for their Employer. The employer/insurer, paid Claimant Wolk $900,969.83 and Claimant Meyer $815,829.47 as compensation for their injuries under the Workers’ Compensation Act.

Claimants brought a personal injury suit against multiple third parties. Before that suit went to trial, one of the defendants settled with claimants for a total of $1,000,000, the limits of its insurance policy. As a result, each claimant repaid employer/insurer $113,517.05, a portion of the workers’ compensation benefits to them.

Each claimant separately entered a settlement agreement with employer/insurer in anticipation of any future award claimants might receive from the ongoing personal injury suit. The Settlement Agreement stated: “this is a compromise of a disputed case with respect to subrogation rights arising under Section 287.150”, the statute laying out subrogation interests.

Thereafter, a dispute came about between claimants and the employer’s insurer, over the employer/insurer’s workers’ compensation subrogation lien. After the parties entered a settlement agreement to resolve this dispute, claimants sought a declaratory judgment from the trial court interpreting Section 287.150.3 and their agreement. Claimants argued the trial court erred in awarding employer/insurer the entire amount of its lien, and that the agreement should be rescinded due to a mutual mistake. The Court did not rescind the agreement.

HOLDING: In their first point, claimants argued the trial court erred in awarding employer/insurer the entire amount of its expenses because Section 287.150.3 did not allow the employer/insurer to recoup its attorney’s fees and expenses from claimant’s share of the recovery.

Section 287.150.3 states “Whenever recovery against the third person is effected by the employee or his defendants, the employer shall pay from his share of recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fees have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee. Notwithstanding the foregoing provisions, the balance of the recovery may be divided between the employer and the employee or his dependents as they may otherwise agree. . .”

In this case, after the expenses of the recovery were deducted, including reasonable attorney’s fees, then the balance of the recovery could be distributed per the terms of the settlement agreement.  

The Court noted that this approach was consistent with the seminal case interpreting Section 287.150.3, Ruediger. The Court stated that here, the parties entered a settlement agreement in which they agreed to a division of the balance of the recovery. Contrary to the claimants’ argument, the trial court correctly determined the balance of recovery according to the statute and the Ruediger formula, then applied the terms of the settlement agreement to determine the employer/insurer’s share of the balance of recovery after deducting attorney’s fees.

With respect to the second point on appeal, the Court noted that the settlement agreement did not result from a mutual mistake. Mutual mistakes occur when there is a mistaken belief among both parties as to a past or present material fact regarding the contract. A mutual mistake is not a ground for rescission where such mistakes become evident through the passage of time. Therefore, the Court affirmed the trial court's amended judgment.

Application Is Sufficient If It Provides Opposing Parties Notice of Issues to Be Addressed

Emmerson v. Prestressed Casting Co. and Second Injury Fund, Case Nos. SD38424, 3834 (Mo. App. 2024)

FACTS: The ALJ issued an Award finding that claimant was PTD due to the work accident alone, that the Fund had no liability and that the employer was liable for future medical treatment.

Employer timely filed an Application For Review (AFR) to the Commission. Claimant filed a response to employer’s AFR and provided detailed responses to each of the employer’s arguments. Thereafter, claimant filed a Motion to Dismiss Employer’s AFR for failure to comply with the requirements of 8C.S.R.20-3.030(3)(a).

The Commission issued an order denying the Motion to Dismiss. In part, the Commission stated: “we exercise our discretion under 8C.S.R.20-4.030(3)(a) and decline to dismiss Employer’s Application For Review. Although Employer’s Application could certainly be more specific in terms of announcing its position concerning the controlling issues that appear to be involved in the case, we believe the Employer’s Application For Review satisfies the minimum requirements under our rule, in that Employer has challenged, with adequate specificity, the ALJ’s findings and conclusions with regard to the issue of whether the Fund or Employer is liable for payment of permanent total disability benefits.”

HOLDING: The claimant and the Fund appealed the decision alleging that the Commission acted without or in excess of its powers.

In reviewing a Commission’s decision to accept or dismiss an Application for Review, the only ground for the Court’s review is whether the Commission acted “without or in excess of its power.”

The Court agreed with the Commission. Although not perfect, employer’s allegations contained enough details such that employer’s AFR was sufficient for purposes of the statutory requirements. Such sufficiency is evidenced by the fact that claimant was able to respond in detail to the allegations to employer’s AFR, and that the issues addressed in claimant’s response were the same issues that the Commission relied upon in entering their own findings. This demonstrated that the AFR was sufficient to put claimant and the Fund on notice of those issues to be addressed by the Commission. The Court affirmed the decision of the Commission.

Surviving Dependent Entitled to Benefits Upon Substitution of Parties If Requirements Under Schoemehl Decision Are Met

Ellsworth v. Wayne County, Missouri and Missouri Association of Counties, Case No. SD37237 (Mo. App. 2024)

FACTS: Employee was involved in a motor vehicle accident on March 30, 2007. He sustained a traumatic brain injury and ALJ issued an Award on May 11, 2016 finding him PTD and in need of future medical care. Employer was ordered to pay employee $236.69 per week, and denied a reduction based on an alleged safety violation. The ALJ also found that Wife was married to employee and that she was his sole dependent. Employer filed a timely notice of appeal with the Commission only raising the issue as to whether employer was entitled to a reduction for a safety violation. The Commission affirmed the Award and employer appealed again.  Employee died on April 13, 2017, while the appeal at the appellate level was pending.

On May 4, 2017, Wife filed an amended Claim for Compensation with the Commission. Wife asserted her own right to benefits in connection with Employee’s claim pursuant to Schoemehl. On June 12, 2017, the Commission advised the parties that it would hold any action on the amended claim until the Appellate Court came to decision with respect to the employer’s appeal. On September 8, 2017, Wife filed with the Court a motion to substitute parties pursuant to Section 287.230. During the appeal process, employer did not challenge the substitution or any of the Commission’s findings.

On June 22, 2018, Wife filed a Memo in the Circuit Court and asked that the trial court enter judgment against the employer based on the Commission’s Final Award. The Court ordered employer to pay Wife all unpaid benefits since employee’s death in April 2017 and continue to pay Wife $236.69 in weekly benefits until her death.

The employer appealed arguing that the trial court erred by entering judgment based on the Final Award of the Commission because Wife’s entitlement to benefits pursuant to the Schoemehl decision was not raised or decided by the Commission.

HOLDING: In Schoemehl, the Court concluded that Section 287.230.2 provided that when an employee is entitled to compensation and death ensues, compensation ceases when the employee dies from a cause other than his/her work injury, “unless there are surviving dependents at the time of death.” The Court noted that a dependent’s right to receive Schoemehl benefits turns on whether the workers’ compensation claim was pending when the employee died. The Court also noted the  Gervich case that found the dependent’s wife’s status as a dependent was set on the date of the husband’s injury. It also noted that Schoemehl applied to claims that were pending during the so-called Schoemehl window, which was “between January 9, 2007, the date the Supreme Court issued the Schoemehl decision, and June 6, 2008, the effective date of the 2008 amendments”.

The Court noted that in affirming the ALJ’s Award, the Commission had already decided that Wife was married to employee and was his sole dependent. In the Commission’s order of November 21, 2017, it found that “Employee died on April 13, 2017 and that Wife remained married to employee, was his sole dependent at the time of his death, and is the appropriate successor to employee’s right in this matter.” The Court noted those are all the factual findings required to support an Award of lifetime PTD benefits to Wife pursuant to Schoemehl. Accordingly, the circuit court correctly entered a judgment in Wife’s favor.

                                                   Simon Law Group, P.C.

                                 701 Market Street, Suite 340, St. Louis, MO  63101

                                                             314-621-2828

                     MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                                    July 2024 – September 2024

Claimant Only Needs One Qualifying, Preexisting Disability Combined With the Primary Disability for Fund PTD Liability

Eckardt v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED112132 (Mo. App. 2024)

FACTS: In the course of 40 years as an aircraft mechanic, the claimant sustained seven work injuries. Claimant was first injured in March 1998, injuring his right knee, resulting in two knee surgeries and, eventually in 2014, a right knee total arthroplasty. On September 6, 2001, he sustained a second injury, which resulted in two left knee surgeries. The third injury was on January 13, 2010, and resulted in surgeries on the left wrist and left shoulder with post-surgical complications. In November 2012, he injured his right shoulder and received treatment for a right shoulder strain and impingement. The fifth and sixth injuries occurred prior to January 4, 2013, resulting in chronic, severe bilateral carpal tunnel syndrome, and he had surgeries on his right wrist on February 8, 2013 and left wrist on March 1, 2013. Despite his multiple injuries and difficulties performing his job duties, the claimant testified that he continued to work.

The claimant sustained his seventh and primary injury on October 3, 2015, which resulted in a cervical disc herniation at C3-4 and he underwent surgery in July 2016.

At the hearing, on behalf of the claimant, Dr. Volarich opined he was PTD as a direct result of the October 3, 2015 work-related injury in combination with his pre-existing medical conditions from his prior injuries.

The ALJ issued an Award in favor of claimant for PTD benefits against the Fund. The ALJ concluded the claimant met his burden to show he was PTD due to a combination of his primary and qualifying preexisting injuries which resulted in the following disabilities: right knee-50% (80 weeks); left knee-50% disability (80 weeks); left shoulder-40% disability (92.8 weeks); left wrist-45% disability (78.75 weeks); and right wrist-40% disability (70 weeks).

The ALJ noted the only preexisting injury that did not reach the statutory threshold was the right shoulder injury, which was 47.5 weeks or 2.5 weeks short of the statutory minimum.

The Fund appealed the Award. The Commission reversed the ALJ’s Award. The Commission found “no credible or persuasive evidence in the record that [claimant] is PTD due to the primary injury in combination with only preexisting disabilities that qualify under [Section] 287.220.3.”

HOLDING: The Court of Appeals found the Fund liable for PTD. The Court stated that it was undisputed that claimant was PTD and the sole issue on appeal was whether his PTD qualified for Fund liability. To make a compensable claim against the Fund, a claimant must meet two conditions. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal to at least 50 weeks of PPD and meet one of the four listed criteria in the statute; second, the employee must show he sustained a subsequent compensable work-related injury that resulted in a PTD when combined with the preexisting disability.

In this matter, Dr. Volarich may have considered all of claimant’s disabilities, but his final determination that claimant was PTD does not rely on claimant’s preexisting nonqualifying right shoulder injury. All of his other disabilities sufficiently combined to cause the PTD absent the right shoulder injury.

The Court concluded the evidence supported the statutory requirement for Fund liability because the claimant demonstrated he had sustained a “subsequent compensable work-related injury, that when combined with the preexisting disability, . . . results in a permanent total disability”. The Court instructed the Commission to grant the claimant PTD benefits to which he is entitled to from the Fund.

Also, the Court concluded that Section 287.220.3(2)(a)a(ii) which defines a qualifying preexisting disability included occupational diseases such as carpal tunnel syndrome. The Court stated that pursuant to longstanding principles of statutory interpretation, they recognized the legislature’s intent as evidenced by its decision not to exclude such coverage when it had sufficient opportunity to do so. The Court concluded that Section (ii) refers generally to a “compensable injury”, and they found it does not exclude from such injury the specific category of occupational diseases, defined as compensable in Chapter 287 as a whole. In this matter, the claimant’s preexisting bilateral carpal tunnel syndrome qualified under Section 287.220 because it was the result of compensable injuries.

                                              Simon Law Group, P.C.

                          701 Market Street, Suite 340, St. Louis, MO  63101

                                                        314-621-2828

            MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                               April 2024 – June 2024

Injury is Not Compensable Because Work Was a Triggering or Precipitating Factor

Hasselbring v. Macon County Nursing Home District, Injury No. 21-079066

FACTS: In 2021, prior to the work injury, the claimant experienced pain in his left leg while walking for more than 30 minutes. Dr. Fernandez confirmed a very large aneurysm of the popliteal artery was thrombosed or occluded. He described the claimant as having a “chronic condition”. He recommended that the claimant undergo a bypass procedure, but he wanted to wait to see how his symptoms progressed.

On November 3, 2021, the claimant was working at Employer’s nursing home when a wheelchair ran over his left foot. That night, Dr. Fernandez performed emergency surgery to revascularize the claimant’s left leg to increase the blood supply. The surgery was unsuccessful, and the claimant’s left leg was amputated above the left knee.

Dr. Fernandez opined that the injury from the wheelchair was the prevailing factor causing acute ischemia or a lack of blood supply, and the wheelchair accident was the prevailing factor in causing soft tissue injuries as well as the lack of feeling, coldness, and bruising of the claimant’s left leg.

Dr. Rao, on behalf of Employer/Insurer, provided his opinion that the diagnosis of thrombosed popliteal aneurysm, with acute on chronic vascular ischemia, was the natural progression of his preexisting condition. He opined that the prevailing factor of the claimant’s loss of limb was an occluded left large popliteal artery aneurysm. He stated there was a known risk that without a bypass this leads to distal ischemia and limb loss, which is exactly what happened to the claimant.

The parties proceeded to a Hardship Hearing before the ALJ who issued a Temporary or Partial Award determining that the claimant met his burden of proving that he sustained a work-related accident that caused a compensable injury to his left leg. The Employer/Insurer filed an Application for Review with the Commission.

HOLDING: The Commission found one point dispositive: the claimant’s work-related accident was a triggering or precipitating factor and not the prevailing factor in causing the claimant’s medical condition and disability. The Commission reversed the ALJ’s temporary or partial Award and issued its final award denying compensation.

The Commission noted that Section 287.020.2 RSMo, for the definition of “accident”, that “an injury is not compensable because work was a triggering or precipitating factor”. Also, Section 287.020.3(2)(a) states an injury shall be determined to arise out of in the course of employment only if: it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury. Section 287.020.3(1) states that injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.

Dr. Rao credibly and persuasively opined that the wheelchair accident was not the prevailing factor in causing the claimant’s preexisting condition to escalate to a level of disability. The doctor explained that if the claimant’s circulation had been normal, an injury from a wheelchair running over his foot “would have been treated with leg elevation, ice, and anti-inflammatories and not urgent thrombectomies in an attempt to get blood flow back into the foot.” The doctor testified that the wheelchair accident triggered or precipitated more ischemia to a foot that was already poorly perfused, and that it was enough to send him into a limb loss situation.

The Commission found that the claimant was involved in a work-related accident on November 3, 2021 when the wheelchair rolled over his left foot. However, based on the credible and persuasive evidence, they found the accident was not the prevailing factor in causing both his resulting medical condition and disability. The opinions of Dr. Rao were more credible and persuasive than those of Dr. Fernandez.

Therefore, the Commission found the November 3, 2021 wheelchair accident at work was merely a triggering or precipitating factor in causing the claimant’s medical condition and disability and therefore, not compensable. The Commission reversed the Judge’s Award.

The Commission also noted that the Tillotson case is not on point. In contrast to Tillotson, the evidence in this case established that the claimant did not sustain a compensable injury because the accident involving the wheelchair was not the prevailing factor in causing both his resulting medical condition and disability. Absent the requisite proof of a compensable injury, Tillotson does not support an Award against Employer/Insurer for the cost of past or future medical treatment.

Employer Did Not Waive Its Right to Select Medical Providers for Claimant’s Future Treatment

HeLmig v. Springfield R-12 School District, Case No. SD38181 (Mo. App. 2024)

FACTS: The claimant sustained an injury, and she was referred to Dr. Galligos for treatment and he then discharged her from care. Subsequently, the claimant contacted Employer and requested additional treatment, but Employer denied the request since Dr. Galligos had discharged her.

Because the claimant was still experiencing symptoms, she sought additional medical treatment on her own using her health insurance. Dr. Thompson diagnosed thoracic outlet syndrome and provided surgery for that condition.

At a Hearing, the ALJ found the claimant was entitled to unpaid medical expenses in the amount of $152,935.67 as well as future medical treatment. As to future medical treatment, the ALJ designated the claimant’s medical providers, including Dr. Thompson, as the authorized treating physicians.

On appeal, with respect to future medical, the Commission affirmed the ALJ’s finding that Employer was liable to provide and pay for future medical treatment reasonably required to cure or relieve the effects of the claimant’s injury. However, the Commission disagreed with the Judge’s implicit finding that Employer’s refusal to authorize medical treatment in the past justified mandating that future treatment may only be provided by or at the direction of the physicians Claimant had previously self-selected. Thereafter, the claimant appealed.

HOLDING: The claimant argued that the Commission erred in modifying the ALJ’s Award by ruling Employer had the right to select Claimant’s future medical providers. However, the argument failed because Section 287.140 says nothing about an Employer waiving its right to select medical providers. To the contrary, it states an Employer shall have the right to select the medical provider.

The Court noted that while an Employer that fails to provide treatment after being notified of a claimant’s injuries is liable for the cost of treatment provided by the claimant’s providers, there is no language in the statute that waives the Employer’s right to direct future treatment, and neither the Commission nor the Court is at liberty to read such language into the statute. The Court noted that “strict construction of a statute presumes nothing that is not expressed.”

Because the statute contains no language waiving the Employer’s right to direct future medical treatment, the Commission did not err in determining Employer has the right to direct future medical care.

Claimant Sustained Compensable Mental Injury Due to Actual Work Events That Would Have Caused Unusual and Extraordinary Stress to a Reasonable Highway Worker

Mantia v. Missouri Department of Transportation, Injury No. 08-096413

FACTS: In 2007, the claimant responded to an accident where a delivery truck driver lost control of his vehicle and was ejected from the truck. She and her crew were called out because there was orange juice, sour cream, and cottage cheese all over the highway. While walking near the scene of the accident, the claimant stepped on the victim’s teeth.

The claimant observed approximately 1,000 accident scenes during the course of her career with Employer. No party disputed the actual work events which occurred during her 20-year career as a highway worker. Eventually, the claimant began to suffer considerable psychiatric symptoms.

In September 2017, the Supreme Court of Missouri issued its opinion in the case which remanded the matter to the Commission for review of the objective standard for proof of extraordinary and unusual work-related stress. In December 2017, the Commission granted the claimant’s request to submit additional evidence and remanded the matter to the Division. In 2023, the ALJ conducted the remand Hearing and each party submitted one deposition exhibit.

HOLDING: After its review, the Commission found that based on the credible testimony of the claimant’s coworker, a former Department of Transportation maintenance superintendent, that the claimant responded to a substantially greater than average number of unusually disturbing accidents involving fatalities during her 20-year career as a highway worker. They found that the actual work events as credibly described by the claimant were so shocking that they would cause a reasonable highway worker extraordinary and unusual work-related stress.

Employer’s chief safety officer testified that highway workers commonly witness vehicle accidents and experience unpleasantness while at work. However, this does not address the inquiry required by Section 287.120, which is whether the actual events the claimant experienced were such that a reasonable highway worker would experience extraordinary and unusual stress. While commendable, Employer’s ongoing provision of training and resources to help employees cope with stressful events, this was irrelevant to the Commission’s determination that actual work events the claimant experienced would have caused unusual and extraordinary stress to a reasonable highway worker.

The Commission concluded that the claimant met her burden, and the Employer was responsible for PPD and future medical treatment.

Evidence of Extraordinary and Unusual Stress Must Meet Required Objective Standard

Boyer v. Taney County Animal Control, Injury No. 21-090237

FACTS: The claimant worked as a kennel technician for Employer. On December 3, 2021, while performing her work duties, a dog growled when the door opened and jumped up and knocked down a coworker onto her back. The dog then started “eating” at the coworker’s arms. As a result of this incident, the claimant alleged mental injury and PTSD.

A coworker, also a kennel technician, testified on the claimant’s behalf. While the coworker testified that the December 3, 2021 event played a role in her decision to quit her job, she acknowledged that there were a lot of other reasons for quitting. She did not testify whether she had previously witnessed animal attacks in the kennel. With respect to the events on December 3, 2021, the coworker testified that the event was a horrific scene in her mind and the attack caused her extraordinary and unusual stress.

The ALJ denied the claim against the Employer/Insurer.

HOLDING: The Commission stated, under Mantia, the objective standard for determining whether a claimant’s stress was compensable is whether the same or similar actual work events would cause a reasonable kennel technician extraordinary or unusual stress. The claimant did not present credible and persuasive evidence to meet that standard. To meet the objective standard, the claimant could have presented the testimony of a kennel technician “as to the circumstances that are experienced as part of the job in general” but the coworker’s individualized, subjective reactions to those circumstances were irrelevant.

The Commission concluded that there was no credible, persuasive and objective evidence that the same or similar actual events the claimant witnessed at work on December 3, 2021 would cause a reasonable kennel technician extraordinary and unusual stress. The Commission affirmed the Judge’s Award.

Medical Evidence in PTD Cases Must Be Credible and Persuasive

Locascio v. Groendyke Transport, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-104642

FACTS: On July 3, 2014, while working as a fuel tank driver, the claimant sustained an injury to his left shoulder. He subsequently underwent three surgeries for a rotator cuff tear. At trial, no party disputed that he was PTD. The Judge concluded that the most credible and competent evidence in the record demonstrated that his PTD is solely due to his July 3, 2014 work injury. The Employer/Insurer appealed.

HOLDING: The Commission noted that no medical expert found the claimant was PTD solely as a result of the primary injury until Dr. Stuckmeyer’s December 28, 2020 report, more than six years after his July 3, 2014 injury. The doctor wrote three earlier reports and in each of those concluded that the claimant was PTD as a result of the combination of significant preexisting disabilities together with the disability from the primary 2014 work injury. In the context of his three earlier reports, the Commission found Dr. Stuckmeyer’s December 28, 2020, revised “alternate” PTD causation opinion neither persuasive nor credible.

The Commission further noted that vocational expert Mr. Dreiling’s original November 22, 2016 opinion that Employee was PTD based on a combination of the preexisting disabilities along with the primary injury to be credible and persuasive. However, the vocational expert’s subsequent deposition testimony was tainted by the claimant’s attorney’s admission on the record that the new case law had prompted counsel to go in a different analytical direction. Also, the Commission was not persuaded by Mr. Cordray’s position that the claimant could not compete for employment in the open labor market due to “life factors” unrelated to the primary injury.

The Commission noted that no expert opined that the claimant’s PTD was attributable to a combination of one or more qualified preexisting disability and disability from the primary injury. Therefore, the Commission concluded that the Fund had no liability and modified the ALJ’s Award regarding Employer’s liability and awarded the claimant 35% of the left shoulder for permanent partial disability benefits.

Evidence Must Be Convincing that Claimant’s Combination of Qualifying Preexisting Disability and Primary Injury Rendered Claimant PTD 

Casey v. Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. SD38016 (Mo. App. 2024)

FACTS: In 2016, the claimant sustained an occupational disease to his bilateral upper extremities, the “primary injury”. He settled the claim with his Employer for stipulated disabilities of 15% of each wrist and 15% of each elbow. He had previously settled a 2006 claim with the Employer for 10% of the right knee and a 2012 claim for 10% of the left wrist, 20% of the left knee, and 22.5% of the left ankle.

The claimant presented testimony from Dr. Volarich, who opined that the claimant was PTD as a result of the work-related injury leading up to June 20, 2016 in combination with his preexisting medical conditions. Ms. Shea agreed.

At the Hearing, the ALJ found the Fund liable for benefits. The Fund appealed. The Commission reversed and the claimant appealed asserting that the Commission erred in denying PTD in failing to consider the claimant’s experts’ opinions that his previous right knee disability was sufficient to meet the 50-week threshold requirement and combined with his primary injury to render Claimant PTD.

HOLDING: The Court noted that the claimant bears the burden of proving all elements of his claim. This includes not only establishing a prima facie case, “but convincing the fact-finder to view the facts as needed for Claimant to win.”

In its Final Award Denying Compensation, the Commission found that the credible, persuasive evidence demonstrated that the claimant had 32.5% PPD of the right knee (52 weeks) preexisting the 2016 primary injury. As that finding met the 50-week threshold required by Section 287.220.3, the question of whether the claimant could combine multiple preexisting disabilities to meet that 50-week requirement is moot.

The Court noted that Dr. Volarich and Ms. Shea both opined that the claimant was PTD as a result of the primary injury and his preexisting conditions. Dr. Volarich opined that Claimant was PTD “as a direct result of the work-related injury leading up to June 20, 2016 in combination with his preexisting medical conditions.” Ms. Shea similarly opined that Claimant’s “inability to be employed is the result of the primary work-related injury and preexisting injuries and conditions.” 

The Commission’s resolution of the credibility and weight of conflicting testimony is within the sole purview of the Commission.

Because the claimant failed to convince the Commission that the combination of the claimant’s qualifying preexisting right-knee disability and the primary injury rendered the claimant PTD, the Court affirmed the Commission’s Final Award Denying Compensation.

Occupational Diseases Are Compensable Pre-Existing “Injuries” As Defined by Statute to Trigger SIF Liability for PTD

Treasurer of the State of Missouri-Custodian of Second Injury Fund v. Penney, Case No. WD86684 (Mo. App. 2024)

FACTS: The claimant had two prior work-related occupational disease injury claims. In June 2018, she underwent two surgeries for her low back including multi-level decompression and fusion. She settled for 12.5% PPD of the body. In February 2019 she sustained an occupational disease to her neck and upper back with protruding discs, but she declined surgery. The claim settled for 12.5% PPD of the body.

Her primary claim was a new work-related occupational disease in March 2019 for her bilateral upper extremities including right carpal tunnel and left ulnar nerve entrapment and underwent surgery. 

Her physician opined that her work was the prevailing factor causing the March 2019 occupational diseases to her bilateral upper extremities. He also opined that claimant’s PTD flowed from the synergism of the global combination of disabilities from each of the occupational disease claims to the low back, cervicothoracic region, and both upper extremities. He further believed that the disability flowing from the 2018 and the February 2019 occupational disease injury claims would qualify under Section 287.220.3 to trigger Fund liability.

At trial, the ALJ found claimant’s expert opinions unrefuted and credible and concluded that claimant was PTD as a result of the combined effect of her disabilities and entitled to PTD benefits from the SIF. On appeal, the Commission affirmed the ALJ’s Award.

HOLDING: The Fund appealed, contending that the Commission misapplied Section 287.220.3 (2)(a)a(ii) by failing to strictly construe the statute when allowing preexisting compensable occupational diseases to satisfy category two, arguing that the plain text of category two excludes compensable occupational diseases by referencing Section 287.020, which outlines the compensability standards for accidents, and not Section 287.067, which outlines the compensability standards for occupational diseases. One statute excluded any occupational diseases except for otherwise provided under the statute, and another statute provided that an occupational disease is a compensable injury.

The Court found that the Commission did not misapply Section 287.220.3(2)(a)a(ii) or fail to strictly construe the statute when allowing preexisting compensable occupational diseases to satisfy category two, in that Section 287.020’s definition of “injury” encompasses occupational diseases provided in Chapter 287, as Section 287.067 of Chapter 287 defines compensable occupational diseases. Therefore, the Commission’s Award was affirmed.

Claimant Must Show Preexisting Disability Reaches Necessary Threshold for SIF Liability for PTD

Carroll v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 21-058799

FACTS: On June 12, 2023, the claimant settled the primary claim for the May 31, 2021 date of injury against Employer/Insurer for 17.5% PPD of each wrist. Also on June 12, 2023, the claimant settled his prior claim against Employer/Insurer for 25% PPD of the right knee and 16% PPD of the left knee for injuries suffered on or about October 31, 2020.

The claimant’s settlements with Employer/Insurer were on a disputed basis, as indicated by the language of each Stipulation. The bilateral knee injuries were due to occupational diseases, as found by the ALJ based on the entire record and the testimony of Dr. Volarich. At trial, the Judge denied PTD benefits against the Fund. The claimant appealed to the Commission.

HOLDING: The Commission affirmed the Award and Decision of the ALJ. Because the primary injury occurred after January 1, 2014, the criteria set forth under Section 287.220.3(2) RSMo applied to establish a compensable claim against the Fund. Under Section 287.220.3, claimants must meet two conditions to make a compensable PTD claim against the Fund. Under the first condition, the claimant must have at least one qualifying preexisting disability, which must be medically documented, equal to at least 50 weeks of PPD, and meet one of the four listed criteria in Section 287.220.3(2)(a)a(i)-(iv). Nonqualifying preexisting disabilities cannot be considered. The Commission noted that Missouri courts have held that while a settlement with the Employer does not bind an ALJ or the Commission, it “does serve as relevant evidence of the nature and extent of Employee’s permanent partial disability attributable to the primary injury.”

In this case, based on the credible and persuasive evidence presented, including the settlement agreement between the claimant and Employer/Insurer, the Commission found the claimant sustained 17.5% PPD of each wrist as a result of the May 31, 2021 primary injury and preexisting disability of 25% PPD of the right knee and 16% PPD of the left knee. They did not find Dr. Volarich’s description of the claimant’s present complaints or PPD rating to be credible and persuasive, as it far exceeded the amount of PPD agreed upon by the claimant and Employer/Insurer. The Commission was more persuaded by the evidence of disability agreed to by the claimant and Employer/Insurer. They were not persuaded that the disputed nature of the claim was a compelling reason to deviate from the below-threshold PPD agreed to in the settlement just three months before the Final Hearing was held.

Because the claimant failed to demonstrate any pre-existing disability met the 50-week threshold, his claim for PTD failed. The Commission noted that while the preexisting bilateral knee injuries were compensable as occupational disease claims, the finding is moot as they found the claimant failed to meet his burden of proof and persuasion that either knee met the 50-week threshold to trigger Fund liability.  The Commission affirmed the Judge's Award regarding the absence of Fund liability.

Untimely Notice of Appeal Dismissed

Godfrey v. Metropolitan St. Louis Sewer District, Case No. ED111833 (Mo. App. 2024)

FACTS: On January 11, 2023, the Division entered an order dismissing the claimant’s claim with prejudice for failure to prosecute, finding “Claimant did not show good cause why [her] claim should not be dismissed”. Eight days later, on January 19, 2023, she filed a timely Application for Review with the Commission asserting her claim should not have been dismissed because there were alleged irregularities.

On May 24, 2023, the Commission entered its Decision affirming the Division’s Dismissal. On June 13, 2023, the claimant filed a Motion for Reconsideration with the Commission asserting her claim should not have been dismissed because: (1) there were alleged irregularities with the Division’s December 2022 Notice and the January 2023 Hearing Notice; and (2) Chapter 287 does not support a finding that she failed to prosecute her claim.

On June 22, 2023, the Commission entered an Order denying her Motion for Reconsideration. The claimant then filed her Notice of Appeal with the Commission on June 26, 2023, asserting she was appealing the Commission’s May 24, 2023 Decision affirming the Decision of the Division. Thereafter, Employer filed a Motion to Dismiss the claimant’s appeal on the grounds that the Court lacked appellate jurisdiction because the claimant’s Notice of Appeal was untimely pursuant to Section 287.495.1.

HOLDING:  Before the Court could consider the merits of the claimant’s points on appeal, the Court had to determine whether the Employer’s motion was dispositive.

Section 287.495.1 provides a notice of appeal in a workers’ compensation case must be filed with the Commission within thirty days from date of the Commission’s Final Award. In this case, the Commission’s May 24, 2023 decision Affirming the Decision of the Division was a Final Award.

Although the claimant filed a Motion for Reconsideration after the Commission’s May 24, 2023 decision, her filing of the Motion did not extend the aforementioned statutory deadline for filing the Notice of Appeal under the circumstances of the case.

Employer’s Motion requested dismissal of the claimant’s appeal, asserting that the Court lacked appellate jurisdiction. Employer’s motion argued the claimant failed to file a timely notice of appeal as to the Commission’s May 24, 2023 Decision and that the Claimant’s motion for reconsideration did not extend the deadline for filing the Notice of Appeal. For that reason, the Court found that the Employer’s argument had merit and dismissed the claimant’s appeal for lack of jurisdiction.

                                                        Simon Law Group, P.C.

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                       MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                                     January 2024 – March 2024

Expert Must Consider Only Qualifying Pre-Existing PPD

Emerson v. Prestressed Casting Co., & Second Injury Fund, Injury No. 18-08559

FACTS: The claimant sustained three prior injuries to his low back. His first low back injury was on May 8, 2012. The MRI showed a small central zone protrusion at L3-4, a central and pericentral zone disc protrusion and annular fissure at L4-5, with mild lateral recess stenosis. The claimant was discharged with a 0% rating and return to full work without restrictions.

His second prior injury was on April 13, 2013. Dr. Crabtree performed a hemilaminectomy and microdiscectomy at L5-S1. The claimant subsequently returned to full duty work without restrictions.

The claimant’s third injury was on December 29, 2014. Dr. Chabot performed surgery which included partial facetectomies and foraminotomies at L4-5 and L5-S1, fusion at L5-S1, and insertion of pedicel screws and rods at L5-S1. After surgery, the claimant continued follow-up care with Dr. Chabot for continuing leg pain.

After reaching MMI following each of the three prior low back injuries, the claimant returned to work at full duty. Although Dr. Woodward provided job restrictions for 35-pound lifting, there is no evidence that the restrictions were followed.

On August 29, 2018, the claimant sustained his primary injury to his neck and low back. A lumbar spine MRI showed L4-5 lateral recess stenosis and facet joint arthropathy that had progressed since claimant’s post fusion MRI. The claimant then underwent a cervical fusion at C5-6 with Dr. Crabtree. Since the claimant’s cervical surgery in 2019, he was using a cane daily, his right leg had given out, he slept poorly, was dependent on pain medication and had significant limitations regarding his activities.

In his Award following the Hearing, the Judge found the employer/insurer solely liable for PTD because the employee worked without limitations before the August 29, 2018 primary injury, stating that “although Mr. Emerson suffered impairments before his last accident, he did not suffer significant consequences from his impairment, i.e. [prior] disabilities until after the last accident.”

The employer/insurer filed a timely Application for Review alleging that the Judge erred in making a distinction between impairment and disability in disregard to the prior settlement and erroneously interpretating 287.220 regarding the liability of the Fund.

HOLDING: The Commission analyzed and applied Section 287.220.3 (2) regarding the liability of the Second Injury Fund for permanent total disability claims. In summary, the statute states that the Fund is liable when an employee sustains a subsequent compensable work-related injury when combined with a preexisting disability equaling a minimum of 50 weeks of permanent partial disability results in permanent total disability.

In this case, only one medical expert, Dr. Volarich, addressed the effect of the claimant’s preexisting disabilities in combination with disabilities attributable to his primary injury. Dr. Crockett rated the claimant’s PPD as 20% of the body but did not distinguish preexisting disabilities from any disability relating to the primary injury. Dr. Volarich opined that the claimant had 60% preexisting PPD of the body rated at the lumbar spine.

The Commission concurred with Dr. Volarich’s opinion that qualifying pre-existing disability attributable to the claimant’s 2013 and 2014 compensable work injuries combined with disability from the claimant’s primary injury to render him permanently and totally disabled. Therefore, the Fund was liable for PTD benefits and the employer was liable for 35% of the body for the primary injury.

Employer Liable for PTD From Primary Injury Alone Despite Conservative Treatment

Balliu v. Konika Minolta Business Solution USA, Inc. & Second Injury Fund, Injury No. 15-085465

FACTS: The employee had an injury on May 6, 2015 and settled against the employer for 25% of the body for a strain on the right groin which was treated non-surgically. The employee went to a hearing against the Fund.

The claimant sustained two prior injuries. In 1999, he suffered a bilateral hernia which was surgically repaired. The claimant testified this happened in a work-related event but did not pursue Worker’s Compensation Benefits. Thereafter, he returned to his same job working full duty with no formal restrictions or accommodations although the claimant testified to some self-accommodating behavior to avoid further injury. Subsequently, in 2004, he sustained a right sided inguinal hernia that was not work related.

In his Award, the Judge stated that the burden of proving entitlement to compensation is on the claimant. In this case, the claimant was alleging that he was PTD due to a combination of injuries. To establish Fund liability, the claimant must demonstrate that the primary injury combined with the prior qualifying injury renders the claimant unemployable in the open labor market. The Judge concluded that the prior injuries did not qualify as preexisting disabilities. When the claimant returned to work after the 1999 injury, he returned to work full time with no restrictions. Furthermore, prior to the primary 2015 work injury, the claimant testified that he engaged in outdoor hobbies including bicycling 8 to 10 miles at a time twice a month, as well as hiking and other activities. The Judge found that the claimant did not meet his burden to establish liability of the Fund for PTD.

HOLDING:  The Commission affirmed the Judge’s Award and decision but corrected his analysis with a supplemental opinion. The Commission noted that for there to be Fund liability, the first analysis is to determine the degree of disability from the last work-related injury. If that last work-related injury, independent and alone, renders the claimant PTD, neither the number of preexisting conditions nor their degree of disability is relevant and there is no Fund liability.

For that reason, the Commission found that the claimant failed to meet his burden of proof to establish liability of the Fund in this matter. Specifically, the claimant’s last accident of May 6, 2015, and the limitations and restrictions, including claimant’s need to recline multiple times per day up to 7 hours per day as a result of the last accident alone, and in isolation, are the most significant factors which rendered the claimant PTD as a result of the primary injury.

“Right to Control” Establishes Employment

Reyes v. Indios Painting, Injury No. 20-100084

FACTS:  At the time of the Hearing, the sole issue to be resolved was whether there was an employer/employee relationship between the claimant and Indios Painting.

The claimant alleged that she worked as a painter for Indios Painting and was hired approximately three months prior to the accident date of May 11, 2020. There is little dispute that on May 11, 2020, the claimant was involved in a serious motor vehicle accident. Mr. Pacheco testified deposition that he previously owned and operated Indios Painting which was operated out of his home and that all employees of Indios Painting were not engaged in the actual business of painting with the exception of occasional touchup work. Also, he was not the owner of the van in the motor vehicle accident on the day in question. However, in the testimony presented, including that of Mr. Pacheco and the claimant, it describes oral contracts entered into with Indios Painting through Mr. Pacheco with various subcontractors including Wilder Landaverry.

The facts also showed that Wilder, as a subcontractor of Indios Painting, picked up the claimant and drove her and others to the job site and returned them at the end of the day. This exercise of the control and the nature of going and coming to jobs and being in a vehicle arguably owned and controlled by Indios Painting at the time of the accident satisfied the right to control test.

HOLDING: The Judge concluded that the claimant was an employee because she was employed by a subcontractor of Indios Painting and presumably the subcontractor possessed no worker’s compensation insurance. By law the statutory employer would step into the shoes for an uninsured subcontractor and for that reason, the Judge found that Indios Painting was the statutory employer of the claimant.

The statute regarding statutory employment states: “Any person who has worked on under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employee and should be liable under this chapter to such contractor, his subcontractor, and their employees when injured or killed on or about the premises of the employer while doing work which is in the usual course of business.”

The evidence showed that Indios Painting hired subcontractors, directed and controlled where they worked, and provided the materials to allow them to perform that work. Also, the accident occurred in an Indios Painting van filled with painting supplies and equipment in which the claimant was picked up by Wilder and transported to the job. Therefore, the Judge found that Indios Painting was the statutory employer of Wilder Landaverry.

The employer/insurer appealed, and the Commission affirmed the Judge’s Award.

Must Consider “Usual Wages From Similar Services” For Volunteer Workers

Hayes v. City of El Dorado Springs, Case No. SD37841 (Mo.App.2024)

FACTS: The Commission awarded Susan Hayes (Wife) $40.00 per week in benefits for the death of her husband, Russell Hayes (Husband) who died while working as a volunteer fire fighter for the City of El Dorado Springs, Missouri. Wife appealed the decision.

Husband served as a volunteer firefighter and EMT for several decades. In 2018, he was fatally injured. Employer admitted that Husband and Wife were entitled to benefits. The only dispute was the amount of Wife’s weekly death benefit.

The only witnesses to testify at the Hearing were Wife and her two expert witnesses, a Lieutenant firefighter and Mr. Eldred, a vocational expert. According to Wife, Husband was on call 24 hours a day as a volunteer fire fighter for employer. Except for working nights as an in home aid, Husband would stop what he was doing to respond to calls. If the calls required Husband to act in some fashion, he was paid $10 per response inside the city limits and $20 per response outside the city limits. But if no action was required, his pay was reduced from $10 to $4 and from $20 to $6.

Mr. Eldred’s report included wage data for firefighters generally, including the mean annual salaries for full time firefighters nationally, within Missouri and within southwest Missouri along with a general firefighter job description as well as the employer’s volunteer firefighter job description.

The employer presented exhibits including a wage statement for Husband, Husband’s personnel file, the employer’s job description for volunteer fire fighters, Husband’s historical pay information, and a wage statement for the employer’s fire chief.

At Hearing, the ALJ found that while Husband was paid for per call responded to, the nature of responding to emergency calls was unpredictable. Also, the ALJ dismissed the testimony of Mr. Eldred as that testimony asked for an assumption that the services of a full-time career firefighter and by a rural volunteer firefighter were similar. Therefore, the ALJ concluded that there was no wage evidence that was introduced. Therefore, since Husband's compensation never exceeded $40 per week the ALJ concluded that the statutory minimum of $40 per week was appropriate. The Wife appealed and the Commission affirmed.

HOLDING: On appeal, Wife contends the Commission misapplied the law in determining Husband’s weekly wage. The Court reversed the Commission’s Award and remanded the case for further proceedings consistent with their opinion.

The Court stated that when the Commission found that Wife presented evidence of the “usual wage” of firefighters, they did not compare the services provided by such firefighters to services provided by Husband as a volunteer firefighter to determine whether those services are “similar” as required by Section 287.250.1 (6) which states that if the hourly wage has not been fixed or cannot be ascertained or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer.

The Court stated it was clear that the Commission did not consider the testimony of Wife’s expert testimony that as a general rule most firefighters have similar job expectations or that the job description of a firefighter and a volunteer firefighter overlapped.

The Court concluded that the plain language of Section 287.250.1 (6) clearly allows for a wage to be calculated for an employee who earned very little or even “no wage” by utilizing the “usual wage” paid to others. The Commission’s Award was revered and remanded for the Commission to determine whether a wage for the purpose of calculating compensation in the form of the “usual wage for similar services” can be determined under Section 287.250.1 (6).

Simon Law Group, P.C.

701 Market Street, Suite 340, St. Louis, MO  63101

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2023 – December 2023

Ex-Spouse Does Not Qualify as Dependent for Death Benefits Under Statute

Virgel Bird (deceased), Karen Bird v. US Assets Recovery LLC, Case No. SD37966 (Mo. App. 2023)

FACTS:  The sole issue in the case was whether Karen Bird (“Bird”), the ex-spouse of Virgel Bird (“Ex-Husband”) is a “dependent” under Section 287.240. Bird is disabled, unemployed, and receives Social Security disability benefits. Bird and ex-husband were married in 1987 and divorced in 2019. After the divorce, Bird and ex-husband continued to live together until ex-husband died on June 8, 2021, in an accident arising out of and in the course of his employment. While Bird and ex-husband lived together after their divorce, the two maintained a joint bank account from which their bills were paid. Bird never deposited any money into that account, and ex-husband paid the bills.

Following ex-husband’s death, Bird filed a claim for death benefits, alleging she was a dependent of ex-husband under Section 287.420. The Commission denied Bird’s petition for death benefits. Bird appealed.

HOLDING: On appeal, Bird argued that she was a “dependent” under Section 287.240(3)(b) because the 2017 amendment to the statute eliminated the requirement that a dependent be a relative by blood or marriage. According to Bird, the “[i] in all other cases” language of Section 287.240 (3)(b) created a catch all condition for all cases where a person is dependent upon the decedent. The Court stated that Bird’s argument had no merit because she read that clause in isolation ignoring the sentences before it and the clause that followed it. The phrase “in all other cases” referred to cases where the degree of dependency between a child and spouse and the decedent was not outlined in the previous sentences. It did not create a new category of dependence.

Paragraph (a) and (b) state two possible classes of dependents: children and spouses. Paragraph (b) described the condition in which children may qualify as a dependent. The language of Section 287.240 (3) was clear and unambiguous and requires that the dependent spouse be a wife or husband.

The Court affirmed the Commission’s decision because Bird does not qualify as a “dependent” under Section 287.240.

Claimant Must Present Persuasive and Credible Expert Testimony of Qualifying Preexisting Disability to Be Awarded PTD from Fund

McCoy v. Meridian Medical Technology and Second Injury Fund,  Case No. ED1111299 (Mo. App. 2023)

FACTS: Prior to the primary injury, claimant suffered from multiple health conditions, including morbid obesity, low back pain, asthma, ventral hernias, and pulmonary disease. In 2006, ALJ awared claimant 17.5% PPD at the right wrist and 17.5% PPD of the left wrist for which the employer was liable.

Claimant’s primary injury occurred in 2017 when she was diagnsoed with “lateral epicondylitis” of the right elbow arising out of the course of her employment. The ALJ found the employer liable for 10% PPD of claimant’s right elbow. The ALJ also found claimant’s preexisting disabilities to her body satisfied the first condition of Section 287.220.3 RSMo 2016 so that the Fund was liable for PTD benefits.

The Fund appealed. The Comission adopted the ALJ’s finding that the employer was liable for 10% PPD for the right elbow injury. However, the Comission found that claimant was not permanently and totally disabled because claimant’s expert opinions were not credible or persuasive. The claimant appealed.

HOLDING: The Court affirmed the Comission’s decision. The Court stated that it is required to defer to the Comission’s credibility determination. The Comission found that the claimant’s experts, Dr. Volarich and Mr. Lalk, lacked credibility. Dr. Volarich testified that the claimant’s obesity was the cause of multiple factors rendering her 65% PPD of the body. The Fund did not introduce its own expert testimony. The Court pointed out that the Fund does not have the burden of proof and is not obligated to contradict claimant’s evidence. The Comission may believe some, all, or none of a witness’s testimony.

The Commission stated that Dr. Volarich’s opinion was neither persuasive nor credible. As a result, there was no credible expert testimony to support claimant’s claims regarding her body as a whole disability. The Comission was not required to believe testimony from Dr. Volarich simply because the Fund did not present a countervailing expert.

Thereore, the Court ruled that the Comission did not err in finding that claimant’s body as a whole disability was not a qualifying preexisting disability. The Court affirmed the Commision’s decision of awarding 10% PPD of the elbow against the Employer and did not award PTD against either the Fund or Employer.

Employer’s Untimely Answer Results in Admission of Factual Allegations but Not Legal Conclusions Regarding Issue of Prevailing Factor in Occupational Diseases

Collins v. Century Ready Mix Inc, Case No. WD86101 (Mo. App. 2023)

FACTS:  The Commission found that claimant sustained a compensable occupational disease as a result of his exposure to repetitive trauma within the course and scope of his employment. The Commission also determined that the ALJ correctly ruled that the “Maximum Rate/Wage” listed on claimant’s claim was a statement of fact deemed admitted by Employer’s untimely answer. However, the Commission determined that Employer’s untimely answer to claimant’s claim did not preclude it from disputing the threshold issue of whether claimant sustained an occupational disease arises out of and in the course of employment. The Commission found that Employer’s defense was not without reasonable grounds, and therefore, denied claimant’s motion for costs and expenses.

HOLDING: The claimant appealed, arguing that the Commission erred in concluding that causation was a legal issue not admitted by a late answer. However, the Court disagreed and affirmed the Commission.

The statute states “Unless the Answer to Claim for Compensation is filed within 30 days from the date the Division acknowledges receipt of the Claim or any extension previously granted, the statements of fact in the Claim for Compensations shall be deemed admitted for any further proceedings.” (8CSR50-2.010.8)(B). Furthermore, the Court noted that the Compensation Act is an exclusive and complete code and provides its own procedures.

The Court stated that an Employer’s untimely answer results in the admission of factual allegations in the claimant’s Claim for Compensation such as: how the injury occurred, causation, average weekly wage, rate of compensation, and the date of the accident.

However, allegations in a Claim for Compensation which are legal conclusions are not deemed admitted by an Employer’s untimely answer. Whether an injury was in the course of employment is a legal question not admitted by an untimely answer. A disability percentage determination alleged within a Claim for Compensation is not deemed admitted nor is the Commission bound by it. The determination of degree of disability is within the exclusive province of the Commission. Also, the Court noted that the claimant’s allegations on the claim form that the claimant “was exposed to occupational disease/cumulative trauma in a degree greater than or different from that which affects the public generally and some distinctive features of his job which was common to all jobs of that sort” as well as statement that the claimant suffered injury “as a direct, proximate, and prevailing factor of his occupational position and duties” are legal conclusions and not factual statements that the injury occurred at work.

Therefore, the Court concluded that the Commission did not err in concluding that Employer’s untimely Answer did not preclude it from disputing the issue of whether claimant sustained a compensable occupational disease injury within the course and scope of his employment.

In conclusion, the Court noted that the Employer’s appeal was not frivolous as it presented a reasonable question on merit. Because the Employer was not frivolous, the Court denied claimant’s motion for damages due to Employer’s appeal.

Claimant Must Submit Evidence Constituting a Prima Facie Case Showing Incident was Compensable

Taylor v. General Motors LLC., Injury No. 20-078394

FACTS: This case at Hearing raised several issues arising out of an alleged work-related injury which the claimant, a factory assembly line worker, developed knee pain at work. The issues for determination were (1) accident or occupational disease arising out of and in the course of employment (2) medical causation, (3) additional medical care, (4) permanent disability.

The claimant testified that on July 20, 2020, he slipped on a nut and felt his left knee go out of socket and had pain but did not fall. He submitted in evidence Exhibit B, the plant medical records which showed that the claimant was seen on July 24, 2020, four days after the injury. The assessment was left knee pain.

Evidence was also presented at Hearing that since leaving the Employer, claimant had worked for three additional employers, FedEx, Toyota, and Chick-Fil-A. He had to stand throughout his entire shift for subsequent employers and testified that he had sharp pain while working for at least subsequent employer.

HOLDING: The ALJ noted that the claimant has the burden to establish that he has sustained an injury by accident arising out of and in the course of his employment, and the accident resulted in an injury. In this case, the question was whether the evidence established that the incident at work, specifically his slip on a bolt and having pain, was the prevailing factor causing both the resulting medical condition and disability.

The medical report, Exhibit B, simply reflected that the claimant was seen at the medical facility for the occurrence of left knee pain. There is no additional evidence to support a conclusion that claimant’s condition was sufficiently debilitating to constitute permanent or temporary disability.

After reviewing all the evidence, the ALJ found that the claim must be denied for failure to prove that it meets the statutory element of compensability. None of the evidence supported a conclusion that the claimant’s condition was sufficiently debilitating to constitute total disability, either permanently or temporarily, and the claimant failed to provide certification from a physician to prove disability under Section 287.190.6. Therefore, the claimant did not present a prima facie case that the incident was the prevailing factor causing any disability as defined by the worker’s compensation statute. The Commission affirmed the ALJ’s Decision. [Editor’s Note: This case was handled by our office.]

Parties Can Stipulate to Settlement and Modify the ALJ’s Award After Medical Fee Dispute Hearing

Orthopedic Ambulatory Surgery Center of Chesterfield v. ClayCo., Inc. and American Zurich, Medical Fee Dispute No. 15-02310

FACTS: A Medical Fee Dispute Evidentiary Hearing was held regarding the Application for Payment of Additional Reimbursement of Medical Fees filed by the healthcare provider. The Employer and its insurer were not present or represented at the Hearing despite being dually notified of the Evidentiary Hearing.

The healthcare provider offered into evidence an affidavit along with bills and medical records for treatment provided. The healthcare provider also asked that the judge take Judicial and/or Administrative Notice of the contents of the Missouri Division of Worker’s Compensation file in the matter.

The ALJ found that the employer and insurer were mailed the Medical Fee Dispute Notice of Evidentiary Hearing via certified mail by the Missouri Division of Worker’s Compensation notifying them of the Hearing. The USPS tracking results noted that the employer received the notice at their last known address on file.

After reviewing all of the evidence, the Judge found that the charges were fair and reasonable and finding no other factual or legal basis for denying the charges, ordered the employer/insurer to pay the healthcare provider $8,460.77.

The Judge also awarded interest. The Judge noted that the healthcare provider also requested recovery of interest based on the number of months from the date of the demand to the hearing. Therefore, the Judge ordered the employer and insurer to pay the additional sum of $2,601.68 or prejudgment interest.

HOLDING: The employer/insurer filed a timely Application for Review to the Commission. The employer/insurer provided the Commission an undated agreement signed by counsel for the healthcare provider and for the employer/insurer stating that the parties have reached an agreement requesting that the Judge’s Award be modified to reflect the settlement as to some of treatment. Therefore, the parties agreed that the remaining balance shall be modified to $4,755.77.

As the Commission agreed to modify the Medical Fee Dispute Award of the ALJ, the employer/insurer was now ordered to pay only the remaining amount of $4,755.77 plus the interest on that lower amount, $1,462.47, for a total of $6,218.24.

The Commission stated that the modification was incorporated in their final Award based on the agreement of the parties to the extent that it was not inconsistent with their Decision and Award.

Complex Issues Involving Medical Causation from Occupational Exposure Must be Based on Persuasive and Credible Expert Medical Testimony, Not Common Knowledge

Pierce v. Ford Motor Company, Injury No. 18-112200

FACTS: The issues in this case included whether the claimant sustained an occupational disease in the course and scope of his employment from exposures to chemicals at his place of employment, and if so, whether the alleged exposure was the prevailing factor in claimant’s diagnosis of Parkinson’s disease.

At Hearing, there was testimony that in 2012 and 2013, Ford built a new paint facility. During that time claimant and other maintenance workers would stand on a boom or scissor lift to cut down the old pipes and then haul the old pipes away. The contents of the pipes included stagnant paint, solvent, and water, which spilled onto them as they worked. The claimant spent a year removing the pipes. The claimant also testified that he lost his sense of smell shortly after he removed and replaced the pipes in the paint plant.

The claimant’s primary care physician referred him to Dr. Shorten for a neurological consultation in April 2018 at which time the doctor noted that the claimant’s tremors started about 9 months earlier in 2017. He diagnosed the claimant with essential tremor. The claimant’s expert witness, Dr. Koprivica opined that exposure to multiple chemicals, specifically including various solvents, was the prevailing factor in the claimant’s development of Parkinson’s disease. However, it was noted that Dr. Koprivica did not perform an analysis of the specific chemicals that the claimant was exposed to or the duration of that exposure.

Also, on behalf of the claimant, Dr. Pahwa also opined that the claimant did develop Parkinson’s disease and that environmental chemicals, genetics, and interactions between genes and chemicals, were responsible for Parkinson’s disease. However, Dr. Pahwa, conceded that he did not analyze any specific chemicals, solvents, or other sources that the claimant may have been exposed to while working for the employer. He admitted he did not analyze the duration of that exposure. He could cite no studies or scientific evidence in support of his conclusion.

Employer’s medical witnesses testified that they analyzed relevant studies regarding chemical exposures and Parkinson’s disease and noted that none of the studied chemical risk factors established with certainty causation of Parkinson’s disease.

HOLDING: The ALJ noted that the central issue in the case was one of medical causation. Due to the complex nature of the case and the differences of opinion between the experts, the Judge concluded that medical causation in this matter cannot be determined by common knowledge or experience but must be based on the opinions of medical physicians and other expert witnesses.

The Judge concluded that when supplied with multiple opinions upon reviewing the medical and expert evidence, she found that the expert opinions on behalf of the claimant were simply unpersuasive and not credible. In contrast, she found the experts submitted by the employer were credible and persuasive and their opinions dispositive.

Therefore, the judge found that the claimant failed to meet the requisite burden of proof to establish by a preponderance of the evidence that he sustained an occupational disease pursuant to Section 287.067.2 of the Worker’s Compensation Statute, specifically, the claimant did not initially provide evidence to prove by reasonable probability that his development of Parkinson’s disease arose out of and in the course of his employment.

The claimant appealed. The Commission affirmed the ALJ’s Award.

                                Simon Law Group, P.C.

              701 Market Street, Suite 340, St. Louis, MO  63101

                                         314-621-2828

  MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                           July 2023 – September 2023

Defense of Lack of Written Notice Fails when Employer Received Actual Notice

Goodwin v. Quik N Tasty Foods, Inc., Injury No. 20-094155

FACTS:  The claimant worked for Quik Trip as a local delivery truck driver. On November 20, 2020, he suddenly began experiencing pain in his left knee following a misstep while taking a dolly down a ramp at a delivery stop. Upon returning to the warehouse, he discussed his injury with a fellow driver, Curtis Montgomery. Mr. Montgomery’s deposition was consistent with the claimant’s testimony. In addition, the claimant’s assistant, Mr. Waugh recalled that when they got back to the warehouse, the claimant complained of being sore.

Records from AT&T indicated that the claimant telephoned the Quik Trip transportation team leader, Marcus Hunter, on November 21, 2020. Also, AT&T records note a call from Mr. Hunter to the claimant on November 20, 2020. Per the claimant’s testimony, that call from Mr. Hunter was to advise him that an over-the-road route had become available to accommodate the claimant’s injury. The claimant drove that route on November 24, 2020.

On November 25, 2020, the claimant was seen by a physician. The claimant also testified that the next week he spoke with Quik Trip supervisor, Grant Bowman, to discuss his work status and injury. This was corroborated by the deposition testimony of Mr. Hunter. The claimant submitted a short term disability application, submitted by his physician. Prior to December 15, 2020, the claimant was contacted by a representative of Quik Trip to discuss his disability application. During his discussion, the claimant informed the representative that he had injured his knee while on the job and suggested that Quik Trip review its surveillance video to investigate the claim.

At the Hearing, the employer asserted its defense that the claimant did not timely provide notice in accordance with Section 287.420 which states that no proceeding for compensation shall be maintained unless written notice of the time, place and nature of the injury has been given to the employer no later than 30 days after the accident, unless the employer was not prejudiced by failure to receive the notice.

The ALJ concluded the employer was not entitled to a notice defense. It was noted that the claimant’s physician provided a short-term disability form to the employer four days after the injury and there was evidence that the claimant communicated by telephone numerous times with his employer regarding the injury. Furthermore, employer’s representative filed a Report of Injury claiming it was notified on December 21, 2020, which is 31 days after the alleged injury, although the employer had actual notice within days of the accident. Additionally, the claimant promptly sought medical evaluation and diagnosis which was provided to the employer. The employer appealed.

HOLDING: The Commission affirmed the Award of the ALJ. The Commission found, as a factual matter, that the employer received actual notice of his November 20, 2020 work injury when the claimant telephoned the employer’s team leader, Marcus Hunter, on November 21, 2020, to advise of the injury to his knee and to inquire about the availability of a less strenuous over the road trucking route for his next scheduled work day.

The Commission wrote that even assuming arguendo that the employer did not receive notice of the employee’s injury until December 21, 2020, as its January 21, 2021 Report of Injury alleged, the Commission found that the employer was not prejudiced by the claimant’s one-day late notice in that it was able to investigate the employee’s claim at the time as well as it would have been able to on December 20, 2020, the thirtieth day after the employee’s work accident.

Claimant Found PTD for Back Injury, in Isolation, Despite Subsequent Neck Injury

Watson v. Tuthill Corporation and Second Injury Fund, Case Nos. SD37293 and SD37294 Consolidated (Mo. App. 2023)

FACTS:  In April of 2015, the claimant injured his lower back when he caught a falling motor. He underwent a fusion surgery in August 2015. On January 25, 2016, he returned to work full time but had difficulty getting up and down and could not do some things he could perform prior to his back injury like lifting heavy parts. On February 1, 2016, the claimant sustained a new injury to his neck. The neck injury was minor and he received only conservative treatment. In the 10 days after the neck injury, the claimant worked only two or three days per week. On April 23, 2016, he retired because he could no longer do the job. He did not reach MMI for the back injury until July 2016.

The claimant’s medical expert, Dr. Koprivica, opined that the work accident causing the back injury, in isolation, rendered claimant permanently and totally disabled. The employer’s expert, Dr. Belz, opined that neither the back injury nor neck injury, in isolation, met the requirements for permanent total disability, but when considered together with all prior injuries and non-work-related degenerative conditions, claimant was PTD.

The ALJ found the back injury, in isolation, rendered claimant PTD as of July 18, 2016, the date of MMI, and the Fund was not liable because claimant’s “last injury” was the back injury and not the neck injury. The Commission affirmed the ALJ. The employer appealed.

HOLDING: The Court affirmed the Commission’s decision finding the Award was supported by competent and substantial evidence. The ALJ considered and found Dr. Koprivica’s findings and opinions more credible than Dr. Belz. When a Judge expresses determinations regarding credibility, the Court is bound by these determinations.

Also, the employer’s argument, that the claimant could not have been PTD from the back injury alone because he returned to work, was not the proper standard. The Court stated that an employee can be PTD without becoming completely inactive or inert. A claimant who returns to work for an employer which accommodates the claimant’s disabilities will not preclude a finding of PTD because “the test is whether the claimant could compete in the open labor market.” Furthermore, there was no disability found as a result of the subsequent injury to the neck, and thus it was not the “last injury.” Therefore, there was no Fund liability.

PTD Awarded on Vocational Expert’s Opinion Based only on Qualifying Pre-Existing Disabilities

Obermann v. Second Injury Fund, Case No. ED111004 (Mo. App. 2023)

FACTS:  The claimant’s claim for benefits against the Fund arose from a workplace injury to his right shoulder (the primary injury) on November 3, 2017. The claimant previously suffered five other workers’ compensation injuries, four of which were qualifying disabilities under Section 287.220.3 in that each exceeded 50 weeks of PPD. The non-qualifying disability was a 1995 injury to the left knee that resulted in less than 50 weeks of PPD.

The Commission denied the claim based on its finding that claimant’s medical and vocational rehabilitation experts included the non-qualifying 1995 left knee disability in their report and testimony. The Commission said “no medical or vocational expert opined that the employee’s PTD resulted solely from the combination of the November 3, 2017 primary injury and the pre-existing disabilities exclusive of disability attributable to his compensable 1995 left knee injury.” This disqualified claimant from PTD benefits from the Fund. The claimant appealed.

HOLDING:  The Court reversed the Commission. It found that the Commission’s decision improperly considered Section 287.220.3 of the statute. The record demonstrated that claimant’s vocational rehabilitation expert repeatedly opined that claimant was unemployable, irrespective of his left knee disability, “based upon the limitations from the shoulder injury plus the pre-existing conditions that he had from his feet injuries.” The Court noted that this evidence directly refuted the Commission’s decision. The case was remanded back to the Commission with instructions to enter an Award in favor of the claimant against the Fund for PTD benefits since the Court concluded the undisputed expert testimony was that claimant’s PTD resulted from his primary injury combined with his qualifying pre-existing feet disabilities.

Second Injury Fund Required by Statute to Pay Medical Bills of Uninsured Employer but Claimant is not Entitled to Windfall from Medical Payment

State of Missouri, Ex Rel., Jeff Peters and John Newman v. Treasurer, State of Missouri, Case Nos. WD85719 and WD85777 (Mo. App. 2023)

FACTS:  On November 14, 2006, Peters suffered severe injuries in a motor vehicle accident in the course of his employment. Peters filed a workers’ compensation claim against both his employer and the Fund through his counsel, Attorney Newman. His claim against the Fund was based on allegations that his employer was uninsured and that the Fund was responsible for his medical expenses under Section 287.220.5.

On December 2, 2011, the ALJ issued her Award findings Peters’s injury compensable, that his employer was uninsured, and that his employer had paid none of the medical bills at issue. The Award found that the fair, reasonable, and necessary charges resulting from his medical treatment was $1,142,169.57. The Award allowed Newton’s attorney’s fees “in the amount of 25% of all payments hereunder.” Finally, the Award ordered that interest shall be paid as provided by law. No Application for Review or appeal was filed and the Award became final.

After the Award became final, Peters filed an Application for Judgment on the Award in the Circuit Court under Section 287.500. On July 31, 2012, the Circuit Court entered judgment against the Treasurer of the State of Missouri (custodian of the Fund) in the amount of $1,142,169.57, with interest of 10% per annum from January 12, 2012. This judgment was not appealed and became final.

In September and November 2013, the Fund paid 9 of the 10 medical providers the total of their billed amount less Newman’s 25% attorney fee. They also paid the 10^th medical provider approximately $100,000.00, and in exchange, the medical provider executed a release providing that the amount paid satisfied all liability. The Fund also directly paid Newman 25% of the amount paid to that medical provider, approximately $25,000.00. The payments made by the Fund did not include any amounts for interest. Peters and Newman did not consent to the payments to the medical providers.

On October 9, 2019, Peters and Newman filed for a Writ of Mandamus ordering the Fund to pay the outstanding judgment entered in their favor for the full amount of $1,142,169.57 plus interest as required by Section 287.220.

HOLDING:  The Court noted that Peters did not dispute that the Fund paid his medical bills. There was also no genuine dispute that the 10^th medical provider released Peters from liability. Pursuant to the Award and consistent with Section 287.220.5, the Fund paid Peters’s fair, reasonable, and necessary medical expenses, and he was released from all liability for them. The Award did not indicate that the Fund was not permitted to negotiate the existing unpaid medical bills. The Award did not order the Fund to pay any amount of medical bills directly to Peters.

The Court reasoned that to allow Peters to recover the full cost of his medical bills from the Fund would result in an impermissible windfall to him. The Court pointed out that pursuant to Section 287.220.5 the Fund has limited liability to employees who are not covered by insurance as required by law. The Statute provides that only an employee’s actual expenses be paid by the Fund. It does not direct the manner in which the funds withdrawn from the Fund are to be paid. Moreover, “An employee of an uninsured employer should not receive a windfall from the Second Injury Fund on account of his employer’s failure to carry insurance, as required under the law.”

With respect to the attorney’s fees, the Court noted that in compliance with the Award, the Fund paid Newman 25% of the full amount of the medical bills paid to each of the 10 medical providers. Accordingly, the Fund paid Newman everything he was due under the Award. Any additional payment to Newman would result in a windfall contrary to the language and intent of Section 287.220.5.

Settlement of a Primary Injury is Relevant Evidence in a Hearing Regarding Fund Liability for PTD

Huffman v. Second Injury Fund, Injury No. 15-073745

FACTS:  In September 2015, the claimant sustained an injury to her shoulder. She obtained treatment, including surgery. She settled her primary case in January 2018 against the employer on a disputed basis for $23,500.00 representing 24% of the right shoulder.

At the Hearing against the Fund for PTD, the claimant testified that due to employer denying her work related accident, she developed a sense of distrust in people which increased her longstanding anxiety and depression for which she had been receiving treatment and medication for over 20 years. She testified that her current levels of anxiety were now worse than before her alleged work accident and she was unable to perform any type of gainful employment due to the combined effects of her psychological conditions, pre-existing chronic headaches, and diabetes.

The claimant was initially examined by Dr. Koprivica in March 2018 who provided a rating of 25% PPD of the right shoulder from the September 2015 work injury. He also identified several pre-existing conditions including chronic disabling headaches resulting in 15% PPD of the body and pre-existing diabetes for which he assigned 15% PPD of the body. He also found significant pre-existing psychological disability and recommended a mental health evaluation.

Dr. Jackson, a licensed psychologist, was of the opinion that claimant had a total psychological disability of the whole person of 45%, 25% pre-existing and 20% psychological disability to the work accident of 2015. Vocational expert, Mr. Cordray clarified that the claimant was PTD due to the combination of the right shoulder injury and psychological disability.

It was also noted that Dr. Koprivica opined in a supplemental report that claimant’s pre-existing psychological disability would qualify to trigger Fund liability, which in his opinion directly and significantly aggravated or accelerated the subsequent work related injury. He felt that as a result of the pre-existing condition and the work related injury, in combination, rendered the claimant PTD.

In his Award, the ALJ noted that the claimant’s allegations for PTD and Fund liability are based on the claimant’s alleged psychological condition in combination with her shoulder injury. However, the claimant needed to show that the work injury of September 2015 resulted in psychological injury, which when combined with her pre-existing condition aggravated or accelerated that condition and rendered her permanently and totally disabled. The Judge further noted that claimant’s decision to settle her claim for disability for only the right shoulder, and not any psychological disability was significant. Therefore, he found that the claimant failed to meet her burden of proof to established Fund liability and the claim against the Fund was denied. The claimant appealed.

HOLDING:   The Commission noted that the Supreme Court of Missouri’s recent decision in the March case in 2022 held that the fact that the Fund did not offer contradicting evidence did not establish a “presumptively valid claim.” The Court stated that to establish a claim, the employee must meet not only their burden of production but also the burden of persuasion.

In this case, the Commission affirmed and adopted the Award of the ALJ  noting that to establish that she was entitled to compensation from the Fund under Section 287.220.3, she was required to establish that a qualified pre-existing psychological disability combined with a psychological disability related to her September 2015 work injury to result in PTD.

The Commission noted that the Judge denied the claimant’s Fund claim because the testimony of the claimant and her experts failed to persuade him that she sustained any psychological disability related to her September 2015 work injury. The ALJ discredited the claimant’s medical and vocational expert views on the basis that their opinions were not sought until after she settled her claim against the employer based on 24% PPD of the right shoulder.

The Commission noted that Missouri courts have held that while a settlement with the employer does not bind an ALJ or the Commission, it “does serve as relevant evidence of the nature and extent of the employee’s permanent disability attributable to the primary injury.”

An Award for PTD Cannot be Based on Medical Opinions which Include any Non-Qualifying Pre-Existing Disabilities

Eckardt v. Second Injury Fund, Injury No. 15-105268

FACTS:  At the time of the Hearing, the claimant was 74-years-old and retired, after working almost his entire adult life as an airplane mechanic. He had sustained several prior injuries for which Dr. Volarich provided ratings for pre-existing disability. The claimant’s last work accident, the primary work injury, occurred on October 3, 2015, when he was getting out of a van at work. The van started moving and he was struck by the door and fell, injuring his right shoulder, wrist and neck. As a result of this accident, he had a neck fusion.

In his August 16, 2018 report, Dr. Volarich provided a 35% PPD of the body rated at the cervical spine as a result of the October 2015 work injury. Dr. Volarich also provided several other ratings for pre-existing disabilities, including a 20% rating of the right upper extremity for a prior injury. He also opined, “Based on my medical assessment alone, it is my opinion that Mr. Eckardt is permanently and totally disabled as a direct result of the work related injury of 10-3-15 in combination with his pre-existing medical conditions.”

The ALJ concluded that the claimant had met his burden to prove that he is PTD from the combination of his primary work-related injury and his qualifying pre-existing injuries and, therefore, the Fund was liable for permanent total disability. The Fund appealed.

HOLDING:  The Commission considered two points on appeal.

First, the Commission found that the claimant’s work related bilateral carpal tunnel syndrome, exceeding 50 weeks of disability in each hand, qualified as a pre-existing disability under Section 287.220.3(2)(a)(ii). The Commission disagreed with the Fund’s argument that carpal tunnel syndrome is not an injury because the statute section which defines the term “injury” provides that an “injury” shall in no case except as specifically provided in the Chapter be construed to include occupational disease in any form.”

The Commission stated that in the absence of controlling Appellate case law, that the doctrine of stare decisis has no application to administrative tribunals. They were allowed to deviate from a prior Commission’s ruling on the matter as long as their action “is not otherwise arbitrary or unreasonable.” They respectfully disagreed with the 2020 Commission’s conclusion, discussed only briefly in a footnote in the Lexow opinion that carpal tunnel syndrome would not satisfy Section 287.220.3(2)(a)(ii) solely because carpal tunnel syndrome is the result of an occupational disease as defined by Section 287.067.

Secondly, on the issue of whether the claimant met his burden of proving that his PTD was attributable to his October 3, 2015 work injury in combination with pre-existing disabilities that qualify under Section 287.220.3, the Commission reversed the Award of the ALJ

The Commission noted that no party disputed that Dr. Volarich’s evaluation of disability to the claimant’s right shoulder as 20% PPD of the right upper extremity (46.4 weeks) fell short of the 50 week threshold required by Section 287.220.3(2)(a)(ii). In her Award, the ALJ acknowledged, “Claimant’s only injury that does not reach the statutory threshold is claimant’s right shoulder.”

The Commission noted that the ALJ awarded PTD against the Fund based on her finding that the exclusion of one work related injury was not significant when considering all of claimant’s qualifying pre-existing injuries. The Commission found that the ALJ erroneously substituted her own opinion.

The Commission concluded that under Section 287.800, they would strictly construe the provisions of the workers’ compensation law and weigh the evidence impartially without giving any party the benefit of the doubt. They found no credible or persuasive evidence in the record that the employee was PTD due to the primary injury in combination with only pre-existing disabilities that qualify under Section 287.220.3. Therefore, claimant did not meet his burden of proof and persuasion because he did not produce credible and persuasive evidence suggesting that he was PTD as a result of the combination of the primary injury and only his qualifying pre-existing disabilities. Therefore, claimant’s claim against the Second Injury Fund was denied because his evidence failed to satisfy the standard set forth under Section 287.220.3.

Commission has Authority to Determine Fair and Reasonable Attorney’s Fees

Roe v. Darden Restaurants, Inc., Case No. WD86109 (Mo. App. 2023)

FACTS:  In September 2018, claimant cut her finger while sorting silverware for the employer. She notified her manager of the injury. Over the next several days, the small cut became infected resulting in emergency hospitalization. After her hospitalization, employer sent claimant for follow up treatment. Due to her injury, claimant incurred medical expenses totaling $30,879.21.

Subsequently, claimant hired an attorney to pursue a workers’ compensation claim to help pay her medical bills. She signed a fee agreement in which her attorney would receive 25% of all benefits paid, including 25% of claimant’s incurred medical bills resulting from the injury.

In January 2020, following a discussion with the ALJ, employer paid claimant’s total medical bills. After paying claimant’s medical bills, employer sent copies of all paid medical bills and their associated explanation of benefits with a letter to claimant’s attorney advising them that the information would also be introduced into evidence at the hearing. Although employer paid all of her medical bills, the claimant was not aware. The record is not clear why the claimant remained unaware her medical bills were paid despite the employer informing her attorney and providing proof of payment.

In March 2022, two years after employer paid claimant’s medical bills, the parties appeared for a final hearing before the ALJ. During the hearing, the employer introduced and the ALJ admitted into evidence, over claimant’s objection, Exhibit A, showing an affidavit and the payment of nine separate checks with accompanying explanation and Exhibit E, employer’s letter to claimant’s attorney sent in April 2020.

As a result of the hearing, the ALJ limited claimant’s attorney’s fees to 25% of the permanent partial disability Award. The Award did not include a fee on the claimant’s medical expenses, since those expenses were already paid two years prior. The claimant appealed. The Commission affirmed and adopted the ALJ’s decision.

HOLDING:  The Court noted that because the claimant’s attorney worked the majority of hours after employer paid claimant’s medical bills in January 2020, the ALJ correctly limited claimant attorney’s fees to “25% of the permanent partial disability awarded.” The amount of work done prior to the payment of the medical bills was limited to about 17 hours with additional time expended for negotiations of settlement.  The Court concluded that the Commission acted within its authority, under Section 287.260, in determining the fair and reasonable amount of claimant’s attorney’s fees to compensation for services rendered “in obtaining payment of her medical bills as well as permanent partial disability benefits.” They saw no reason to disturb the Commission’s findings. Also, the Court noted that in the findings of fact, the ALJ chastised claimant’s attorney about the needless work performed as well as claimant’s attorney’s failure to communicate with his client.

                                     Simon Law Group, P.C.

                  720 Olive Street, Suite 1720, St. Louis, MO  63101

                                              314-621-2828

    MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                      April 2023 – June 2023

Claimant Must Meet Burden to Show Job Duties, and Not Repetitive Activities at Home, are the Prevailing Factor in Causing Occupational Disease

Steinbach v. Maxion Wheels, Sedalia, LLC, Case No. WD85697 (Mo. App. 2023)

FACTS:  On November 13, 2018, the claimant filed a Claim for Compensation asserting that she suffered an occupational disease to her bilateral upper extremities. The claimant worked as a rework coordinator. Employer kept production records for the work performed by the rework coordinators. The production report showed the maximum number of wheels reworked on the shift in one day was 265 wheels, but the average number of wheels reworked in a day was 48 and averaged less than 60 seconds.

In December 2017, Dr. Ellefsen sent a letter to Employer opining that the claimant’s condition could not be attributed to her work. He reviewed the production records for rework coordinators. He was also concerned about the welding she was doing at home.

Evidence of the claimant’s non work-related welding activities was also presented at the Hearing. She began welding in her basement in 2017 and purchased 4,154 pounds of scrap steel from Employer. She testified that she intended to start her own business, but that her plan did not work out.

The claimant built furniture, medieval-style weapons, toys, and other small items. A witness testified that her husband and some neighbors worked in the basement of her house along with her almost every night making items with the scrap metal.

In his report, Dr. Stuckmeyer noted that the claimant told him that “she would continuously grind wheels, up to 1,000 wheels per night.” He also noted that she had told Dr. Ellefsen that she used a large grinder at work and was exposed to vibratory and torquing tools eight hours a day, five to seven days a week, and did some welding at home but on a very occasional basis, describing it as “craft welding.” He opined that although the claimant did do outside welding at home, the intense repetitive nature of the occupational duties was prevailing factor” causing her bilateral carpal tunnel.

At the Hearing, the ALJ denied the case. The Judge found that the claimant’s testimony about her work activity and her welding activity at home was not credible, that Dr. Stuckmeyer’s opinion was not credible because she provided an inaccurate work history, and that Dr. Ellefsen’s opinions were more credible because they were based on a more accurate description of her work activities.

HOLDING:  The claimant appealed to the Commission, which affirmed the ALJ’s opinion. She then appealed again. The Court noted that the claimant had the burden to show her injury was compensable. While she met her burden of production by introducing Dr. Stuckmeyer’s report, she failed to meet the burden of persuasion. The Commission rejected Dr. Stuckmeyer’s opinion and the Court affirmed the Commission’s decision.

Benefits Denied When Claimant Did Not Sustain an Accident or Fall but Instead Incurred Heat Exhaustion Which is a Risk He Would be Equally Exposed to Outside of Work

Baty v. Dairy Farmers of America, Injury No. 18-029696

FACTS:  On July 9, 2019, the claimant was working at Employer’s warehouse. While performing very light duty work that mostly consisted of observing automated machinery and products moving through the machinery, the claimant began to feel ill, including sweating, hot, shortness of breath, and some chest pain. When the claimant could not cool down, he was transported in a supervisor’s personal vehicle to the emergency room.

On July 11, 2019, once again, even though the claimant indicated he was still not feeling well, he showed up for work for his afternoon shift, starting at 3:00 p.m. on a day where the reported high temperature was cooler at 86 degrees. After beginning his light duty work in the warehouse, within a few minutes, he indicated he was again feeling much worse and he was hot and sweaty. Subsequently, he was sitting on a ledge of a piece of machinery when coworkers noticed him slumping down to the floor. None of the witnesses observed the claimant fall or strike his head or sustain any trauma. In fact, it was the testimony of the claimant that no one witnessed the accident, and that no one knew how he ended up on the floor.

It was noted in the medical records, that several physicians, inaccurately, concluded that the claimant fell at work, hit his head, and was knocked unconscious.

At hearing, the ALJ denied benefits, finding that the claimant did not sustain an accidental injury or occupational disease which arose out of his employment. The claimant appealed.

HOLDING: The Commission noted that the burden of establishing entitlement to compensation is entirely upon the claimant. The Commission noted that the claimant was not performing strenuous work activity and was working in a warehouse on a day of normal summertime weather. It further noted that there was not any testimony that the heat inside the warehouse on either day was abnormally hot or significantly hotter or warmer than the outside temperature, meaning the claimant would have been equally exposed to the heat outside of the plant as he was inside the plant.

The claimant testified to a pre-existing issue involving heat related conditions in his 20’s. The claimant’s own medical expert, Dr. Schuman testified that because of a prior heat exhaustion or heat stroke, that it would make an individual more prone to having a lower threshold to sustain another heat related injury. However, Dr. Schuman was not aware that the claimant had in fact sustained a pre-existing heat related condition or possibly heat stroke.

The Commission found that the testimony of Dr. Lennard and Dr. Farrar was more credible than Dr. Schuman and therefore the decision of the ALJ was affirmed.

Section 287.780 Does Not Prohibit an Employer from Discriminating Against a Former Employee for Exercising Their Workers’ Compensation Rights

Lisle v. Meyer Electric Co., Inc., Case No. SC99670 (Mo. S. Ct. 2023)

FACTS: In May 2017, Meyer Electric hired the claimant, a commercial electrical contractor, to work on a construction project. On May 2, 2018, the claimant advised Mr. Mehrhoff, his foreman, that he was suffering from work related carpal tunnel syndrome and asked to complete an injury report. Mr. Mehrhoff allegedly replied, “If you ask for an injury report, they will lay you off.” Subsequently, Meyer Electric’s president, Leon Keller, became aware that the claimant wanted to file an injury report and a workers’ compensation claim, and therefore terminated the claimant’s employment. After his termination, the claimant filed a workers’ compensation claim and a lawsuit against Meyer Electric, alleging wrongful discharge under Section 287.780.

In June 2019, more than a year after Meyer Electric terminated the claimant’s employment, the claimant saw Meyer Electric’s job posting for a journeyman electrician. The claimant who was unemployed and pursuing his wrongful discharge claim against Meyer Electric at the time, applied for the job. Mr. Mehrhoff said he “would probably hire [the claimant] back.” The claimant received a union referral notice, a union-issued document that a member takes to the work site to begin work. After receiving the referral, however, his foreman texted the claimant that the president had instructed him not to hire the claimant.

In November 2019, the claimant filed this pending lawsuit against Meyer Electric. He alleged Meyer Electric violated Section 287.780 when it did not hire him in June 2019 in retaliation for exercising his workers’ compensation rights in May 2018. Meyer Electric filed a Motion for Summary Judgement in which it asserted the uncontroverted material facts affirmatively negated an element of the claimant’s claim because he was not an employee in June when Meyer Electric chose not to hire him. The Circuit Court sustained the Motion and entered summary judgment in Meyer Electric’s favor.

HOLDING: The claimant appealed arguing that the Circuit Court erred in sustaining Meyer Electric’s Motion for Summary Judgment because Section 287.780 prohibits employers from discriminating against former employees for exercising their workers’ compensation rights. He also claimed the Circuit Court erred in entering summary judgment because the evidence was sufficient to allow a jury to find Meyer Electric refused to hire him in retaliation for exercising his rights under Chapter 287 during their prior employment relationship.

Section 287.780 provides: “No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination…”

However, the Court held that under strict construction, “Employer” and “Employee” are defined narrowly so that the protections and sanctions in Section 278.780 apply only to employers and employees in a current employment relationship. Because the claimant was not an employee of Meyer Electric when it refused to hire him in June 2019, Meyer Electric established its right to judgment, as a matter of law. Therefore, the Circuit Court’s judgment was affirmed.

Claimant Properly Awarded Benefits for PTSD When Evidence Demonstrated Actual Events Experienced Caused Extraordinary and Usual Stress

City of Clinton v. Dahman, Case No. WD85780 (Mo. App. 2023)

FACTS: Dahman worked as a patrol officer for the City of Clinton’s police department. On August 6, 2017, he was working an overnight shift. Officer Michael was a good friend of Dahman’s. Dahman heard Officer Michael report over the radio, “Shots fired. Officer hit.” Dahman responded to the scene. On his way, he heard over his radio that the suspect vehicle had fled. When he arrived, Dahman found Officer Michael unconscious on the ground. Dahman testified that he was in shock that Officer Michael had been shot, and later died. He was one of Officer Michael’s pallbearers.

Later, Dahman watched security camera video footage which showed Officer Michael conducting the traffic stop of the suspect’s vehicle. The manhunt for the suspect took several days. After the suspect was apprehended, Dahman was scheduled to be a witness at his trial.

Starting immediately after the August 2017 incident, Dahman began to experience adverse symptoms including fatigue, anxiety, tightness in the chest, insomnia, lack of motivation, and a sense of helplessness. He resigned from the police department in October 2017 since he felt he could not do his job due to his fear of being shot.

The City of Clinton had the claimant examined by a second psychiatrist, Dr. Khalid who diagnosed Dahman with PTSD. Dr. Khalid agreed that the prevailing factor causing Dahman’s PTSD was the August 2017 incident, and that the stress he experienced in connection with that incident was extraordinary and unusual. However, by June 2021, in light of the improvement in Dahman’s condition, Dr. Khalid concluded that he did not have a permanent partial disability associated with his PTSD and was not in need of further psychiatric treatment for that condition.

The ALJ issued a final Award finding that Dahman’s PTSD was a compensable occupational disease caused by the August 2017 incident. The Judge found that Dahman had 10% PPD. The ALJ’s Award specifically found by objective standards that Dahman’s work related stress was both extraordinary and unusual and met the requirements of Section 287.120.8. The City appealed the Judge’s award. The Commission affirmed the award.

HOLDING:  The City of Clinton again appealed. The Court noted that three mental health experts, and the City’s Chief of Police, uniformly testified that the circumstances to which Dahman was exposed in August 2017 were extraordinary and unusual. To establish his right to compensation, the claimant need not show the subjective experiences of his fellow workers were not as severe as his experiences, but rather, he must demonstrate the actual events he experienced were such that a reasonable police officer would experience extraordinary and unusual stress. It was also noted that while Dr. Halfaker testified that some measure of danger and exposure to crime scenes is common in police work, he also testified that the particular stresses to which the claimant was exposed in August 2017 were extraordinary and unusual.

Therefore, the Court concluded that the Commission’s decision was supported by sufficient competent evidence that the claimant’s PTSD was caused by work related stress which was extraordinary and unusual, measured by objective standards and actual events.

Employer/Insurer Must Have Authorized the Treatment for Medical Provider to Have Standing in Medical Fee Dispute

Henry v. LZB Manufacturing, Inc., Injury No. 18-029696

FACTS:  The claimant reported a minor incident to his left shoulder occurring in July of 2014. Employer denied any medical treatment. Instead of providing or directing the claimant for medical treatment, he was told by a supervisor, that he could utilize a massage therapist being paid for and provided by the employer. In Fall of 2017, the claimant testified the pain in his left shoulder and neck got so bad that he once again went and directly requested medical treatment from the employer.

Thereafter, the claimant went to the emergency room at Freeman Health System on his own. He had an injection to the left shoulder and an MRI which showed tears. In March 2018, Dr. Sweaney performed a two-level cervical fusion.

Dr. Koprivica opined that employee had 25% to 30% PPD of the body for the cervical spine and 15% for the left shoulder. Dr. Lennard did not believe his condition was work related.

Based on the evidence, the ALJ found Dr. Koprivica’s report and opinions more persuasive and credible. The Judge found that the claimant’s work injury was compensable and his treatment was related back to the work injury.

On the issue of the Medical Fee Dispute filed on behalf of Freeman Health System, the ALJ found that the medical care and treatment received by the claimant regarding the left shoulder and cervical spine, including the surgery, represented reasonable, usual and customary treatment necessary in an attempt to cure and relieve the effects of the work injuries based on the medical opinion of Dr. Koprivica. Therefore, the ALJ found the Employer liable for the Medical Fee Disputes for treatment provided by Freeman Health System, respectively $94,378.59 and $29,398.00.

HOLDING: The Employer/Insurer appealed the ALJ’s award to the Commission, in part, stating that the ALJ erred in awarding Freeman direct payment of $94,328.59 and $29,398.00 pursuant to the Medical Fee Disputes, because the Employer/Insurer did not authorize the treatment.

With respect to Medical Fee Disputes, it was noted that under Section 287.140.13(6) that a medical provider may file a Medical Fee Dispute regarding services that have been authorized in advance by the Employer or Insurer.

It was noted that no party disputed that the employer refused to authorize medical treatment. It was also noted that the Division has the power to reject an Application for Direct Payment if the Application does not pertain to a dispute relating to services that were authorized in advance by the Employer or Insurer.

Therefore, the Commission affirmed the ALJ’s finding, based on Dr. Koprivica’s opinion, that the charges of Freeman Health System represented reasonable, usual and customary treatment necessary to cure and relieve the effects of the claimant’s compensable claim. However, the Commission modified the Award finding that the Employer/Insurer was directly responsible for these charges and that the Medical Fee Disputes were dismissed without standing. The remaining portions of the ALJ’s award were affirmed.

For SIF PTD Liability, Claimant Must Meet 50 Week Threshold for Each Separate Body Part for Pre-existing Disability to Qualify

Casey v. Second Injury Fund., Injury No. 16-050548

FACTS:  The claimant’s primary injury involved bilateral carpal tunnel releases and bilateral ulnar nerve transposition surgeries. The claimant settled his primary claim for 15% of each wrist, 15% of each elbow, a 10% loading factor, and eight weeks of disfigurement.

The claimant had sustained pre-existing disabilities prior to the primary injury. In 2006, he injured his right knee while working and settled this claim for 10% of the right knee in 2007.

In 2012, the claimant sustained an injury at work to his left wrist, left knee and left ankle. The claimant settled this claim for 10% of the left wrist, 20% of the left knee, and 22.5% of the left ankle.

The claimant obtained an IME from Dr. Volarich. Regarding the 2016 primary injury, Dr. Volarich provided PPD ratings of 35% of each wrist and 35% of each elbow. Regarding the pre-existing conditions, he provided PPD ratings of 15% of each wrist, 60% of the right knee, 35% of the left knee, and 40% of the left ankle. He opined that the claimant was PTD as a result of the 2016 primary injury in combination with his pre-existing medical conditions.

The claimant sought a vocational assessment from Ms. Shea. She opined that the claimant was not employable and his inability to be employed was the result of the primary work related injury and his pre-existing injuries and conditions.

The ALJ determined that the SIF was liable for PTD.

HOLDING: The SIF appealed the ALJ’s award for PTD benefits against the Fund.

The Commission disagreed with the Fund’s allegation that the ALJ erred in finding the claimant’s pre-existing 2006 right knee was equal to or greater than 50 weeks of PPD. The Commission explained that they must determine the extent of PPD that the claimant had in his right knee at the time of the June 2016 primary injury. They noted that the 2007 settlement may be evidence of PPD in the knee at the time of the settlement but it is not determinative of the PPD present nine years later in 2016. They found credible, persuasive evidence demonstrated that the claimant had 32.5% PPD of the right knee (52 weeks) pre-existing the 2016 primary injury.

However, the Commission did agree with the Fund that the ALJ erred in adding together three separate and distinct disabilities to different parts of the body as a result of one injury to reach the required threshold amount under Section 287.220.3. They did not find any authority to allow combining disabilities occurring to different parts of the body in order to reach the 50 week threshold in Section 287.220.3(2)(a).

Also, the Commission agreed with the Fund that the ALJ erred in awarding PTD benefits because the claimant’s total disability resulted from the combination of the primary injury and non-qualifying pre-existing disabilities. It was noted that the claimant’s experts, Dr. Volarich and Ms. Shea opined that the PTD was a result of a combination of the prior injury and the pre-existing conditions. The experts included the claimant’s non-qualifying pre-existing disabilities in arriving at their PTD opinions. As such, the Commission concluded that the claimant failed to meet the requirements of Section 287.220.3 to make a compensable PTD claim against the Fund.

Therefore, the Commission reversed the Award of the ALJ. The claimant’s claim against the Fund was denied because his evidence failed to satisfy the standard set forth under Section 287.220.3.

                                    Simon Law Group, P.C.

                 720 Olive Street, Suite 1720, St. Louis, MO  63101

                                             314-621-2828

   MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                              January 2023 – March 2023

Claimant Must Establish a Medically Documented Pre-existing Condition Significantly Aggravated the Primary Injury

Dubuc v. Second Injury Fund, Case No. SC99605 (Mo. S. Ct. 2023)

FACTS: The claimant sustained an injury in October 2015 when he fell off a ladder at work injuring his wrist, kidneys and low back. He settled with his employer for his primary injuries but alleged that he was PTD under Section 287.220.2 and that the Fund was liable for benefits due to his pre-existing disabilities, including multiple hernias and Factor V Leiden mutation with anti-coagulation and his primary injury.

Following the hearing, the Administrative Law Judge denied benefits because the ALJ determined the primary injury alone rendered him PTD. Claimant appealed and the Commission reversed the Award of the ALJ and awarded him benefits from the Fund. The Fund appealed.

While the case was pending the Supreme Court handed down Cosby, which required the claimant to meet the standards in Section 287.220.3 to prove his claim. Prior to Cosby, Section 287.220.3 applied only when both pre-existing and primary injuries occurred after January 1, 2014 but Cosby held that Subsection 3 applies when any injury occurred after January 1, 2014.

Thereafter, the Court of Appeals reversed the Commission’s Award and remanded the case, instructing the Commission to determine if the claimant was entitled to benefits from the Fund under Section 287.220.3. The Commission did not award the claimant benefits from the Fund.

HOLDING: The Supreme Court affirmed the Commission’s decision. The claimant failed to establish his primary injury and pre-existing disabilities entitled him to PTD benefits from SIF under Section 287.220.3. He failed to establish any “medically documented” qualifying pre-existing disability that “directly and significantly aggravated or accelerated” his primary injury.

First, there was no “direct evidence” in the record of claimant’s hernias but only “self-reported history.” Claimant’s own statements about hernias noted by doctors in medical records were not considered “medically documented” because the doctors’ references to hernias were not based on records of diagnosis or treatment, but based on the claimant’s own statements.

Second, there was no showing that claimant’s Factor V Leiden mutation and anti-coagulation “directly and significantly aggravated or accelerated” his primary injury. When discussing the relationship between claimant’s pre-existing injuries and primary injury, Factor V Leiden mutation and anti-coagulation were omitted from the expert’s report. The claimant must show that “the impact of the pre-existing disabilities on primary injury is more than incidental; they must clearly exacerbate the primary injury in a meaningful way.”

Claimant’s Medical Evidence Must Show Pre-existing Disability Significantly and Directly Aggravated the Primary Injury

Swafford v. Second Injury Fund, Case No. SC99563 (Mo. S. Ct. 2023)

FACTS:  Claimant’s primary injury occurred in October 2017 when he slipped at work while getting out of a truck. He was diagnosed with a moderately large rotator cuff and labrum tear. After settling his worker’s compensation claim with his employer, he went to a hearing against the Fund, alleging his pre-existing disabilities combined with his primary injury, rendering him PTD.

The claimant had multiple pre-existing disabilities including ankylosing spondylitis, various cardiac conditions for which he had undergone multiple procedures, and right shoulder pain since 2012. In 2016, prior his work injury, he was diagnosed with bursitis in his right shoulder, which required steroid injections every three to four months.

Following the hearing, the ALJ denied the claim, concluding that the claimant failed to demonstrate he suffered from a “qualifying” pre-existing disability under Section 287.220.3. The Commission agreed with the ALJ’s determination that the claimant failed to show his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury pursuant to Section 287.220.3. Claimant appealed the Commission’s decision.

HOLDING:  On appeal, the claimant challenged the Commission’s decision for allegedly disregarding the expert testimony he offered to establish a causal relationship between his pre-existing disabilities and his primary injury. The Court found that the claimant failed to establish that his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury.

While the claimant’s medical reports establish that his pre-existing disabilities had some worsening effect on his primary injury, they were insufficient to show that the worsening effects rose to the level of significant and direct aggravation or acceleration. First, Dr. Lingenfelter’s “vaguely worded report” failed to establish “as a factual matter that claimant’s pre-existing disabilities ‘significantly and directly’ aggravated his primary injury.” He did not clearly articulate the extent to which any of those disabilities exacerbated that injury.

Second, Dr. Koprivica also provided “no medical evidence” that any of claimant’s pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury. While Dr. Koprivica stated that there was a “significant synergistic effect” between the pre-existing disabilities and the primary injury, that specific language relates to the standard for SIF liability prior to the 2013 amendments. Although medical experts need not use “magic words” (“synergistic effect”) associated with the less stringent standard (“combined with”) that qualifies for SIF liability under the pre-amended Section 287.220.2. Such language is insufficient under Section 287.220.3. Therefore the Fund was not liable for benefits.

Claimant Must Present Evidence Required to Meet All Statutory Requirements to Show PTD.

Weibrecht v. Second Injury Fund, Case No. SC99493 (Mo. S. Ct. 2023)

FACTS: Claimant’s primary injury was a low back injury he sustained at work in July 2016. After settling his claim with his employer, went to a hearing against the Fund alleging that he was PTD due to his pre-existing injuries to his low back in 2005 and 2009 and right shoulder in 2014 combined with his primary injury.

A hearing was held before the ALJ in May 2019. Before the ALJ issued her final Award, the Court handed down its opinion in Cosby finding that Section 287.220.2 applies when all injuries occurred prior to January 1, 2014 and Section 287.220.3 applies when any injury occurred after January 1, 2014.

After the hearing, but before the ALJ’s final Award, the claimant filed a motion to reopen the record for a supplemental hearing, contending that Cosby changed the law. He contended the Court’s decision in Cosby changed his burden of proof, which constituted “good cause” to reopen the record. The SIF argued that while the ALJ has authority to reopen the record in certain circumstances, doing so was not warranted under the facts of this case.

The ALJ denied claimant’s post-hearing motion and denied his claim for benefits from the SIF. The Commission affirmed the ALJ’s decision.

HOLDING:  The Court affirmed the earlier decisions finding that  the Commission did not abuse its discretion in affirming the ALJ’s denial of claimant’s post-hearing motions to reopen the record and submit additional evidence.

The Court pointed out that workers’ compensation law is entirely a creature of statute. Nothing prohibited the claimant from presenting evidence under both Sections 287.220.2 and 287.220.3 at his hearing. It was not against the logic of the circumstances and so unreasonable to indicate a lack of careful consideration for the ALJ to conclude there was no good cause to reopen the record when the Court had not previously interpreted Sections 287.220.2 and 287.220.3 and nothing precluded the claimant at from making alternative arguments. Accordingly, the ALJ did not abuse her discretion. Claimant should have been aware of what evidence was required to make a submissible case for PTD and the plain language of Sections 287.220.2 and 287.220.3 set forth the necessary evidence to make a submissible claim.

Upon Reaching MMI, Claimant Can Be Found PTD

LME, Inc. v. Robert Powell and Second Injury Fund, Case No. WD85427 (Mo. App. 2023)

FACTS:  The claimant suffered a work injury to his back while operating a pallet jack. He underwent a lumbar decompression fusion by Dr. Bailey. He determined the claimant reached MMI and provided a 12.5% rating of the lumbar spine. Prior to the work injury, claimant had suffered disability to the back due to two prior motor vehicle accidents.

After he was released at MMI for the back, the claimant began treatment on his own for major depressive disorder. Prior to the work injury, he had been diagnosed as bipolar and had experienced depression and suicidal ideation since he was a teen. Furthermore, he had only a ninth grade education, no GED and a history of learning and behavioral problems.

Dr. Stuckmeyer determined that as a result of the work injury, the claimant sustained 35% PPD to the body in addition to a pre-existing 15% for lumbar and pelvis injuries from his previous car accident. In a subsequent report, he determined the claimant was permanently totally disabled as a result of the work injury after reviewing the vocational report of Mr. Cordray and psychiatric report of Dr. Hill who opined that the work accident was the prevailing factor for the claimant’s development of major depressive disorder and somatic symptom disorder, and he assigned 40% and 15% PPD for each disorder, respectively.

The ALJ found the claimant PTD and that the employer was responsible for benefits. The Commission affirmed the Award.

The employer appealed, arguing that the Judge and Commission erred by determining the claimant PTD by misstating the agreement reached by the parties regarding the claimant’s MMI date, because the employer only agreed that the employee reached MMI for his physical injuries, because the employer never accepted or admitted a psychological injury and therefore the employee cannot be determined to be PTD until he has reached MMI for all conditions.

HOLDING: The Court disagreed with the employer’s argument and affirmed the Award.

At the final hearing, both the claimant and employer stipulated on the record to the MMI date of April 12, 2018, the date Dr. Bailey released the claimant. There was no discussion or delineation between the physical and psychological injuries regarding MMI in the stipulated facts. By arguing that the employer accepted the back injury but not the alleged mental injury misconstrues that one of the purposes of the final hearing was to resolve whether the employee suffered any disability.

The Court also noted that the ALJ relied on the opinion of Dr. Hill regarding the psychiatric injury. He stated that the recommended treatments are not curative by any means, but may help improve the claimant’s daily life. Thus, contrary to employer’s position, such evidence supports that the psychiatric injury has reached the point where no further progress is expected or maximum medical improvement.

Objective Symptoms at Time of Accident Include Indications of Injury Perceptible to Others

Harper v. Springfield Rehab & Healthcare Center, Case No. SD37268 (Mo. App. 2023)

FACTS: The Commission stated in its rulings: “Claimant suffered an ‘unusual strain’ in her lower back when she pushed the heavy medicine cart…which produced objective symptoms of injury” based on claimant’s testimony that she “felt a ‘pull’ in her lower back” and “shortly thereafter (during the same work shift)…had difficulty walking.”

The employer appealed the Commission’s decision. They argued that the claimant had not sustained an accident under the law because the Commission “failed to establish objective symptoms of an injury at the time and place of occurrence.”

HOLDING:  The Court stated that although the definition of “accident” in the statute has always included the phrase “producing at the time objective symptoms of an injury,” the changes to the statute in 2005 abrogated earlier case law interpreting the definition of “accident.”

They found that the adjective “objective” when used in combination with “symptom” means “perceptible to persons other than the affected individual.” They concluded that the statutory phrase, an unusual strain “producing at the time objective symptoms of an injury” should be interpreted to mean an unusual strain producing at (i.e. near) the time objective symptoms (i.e. indications perceptible by persons other than the claimant of the existence) of an injury (i.e. violence to the physical structure of claimant’s body).

The Court noted that the Commission found that the claimant “had difficulty walking” later in the same shift during which she suffered an unusual strain. Claimant’s difficulty walking would be perceptible to persons other than the claimant, indicated the existence of violence to the physical structure of claimant’s body, and was produced near the time of the unusual strain.

Therefore, the Court affirmed the Commission’s decision.

Claimant Not entitled to Additional TTD Benefits After MMI Because Refusal to Look For Work is Not Inability to Work.

Thompson v. CSI Commercial Services, Inc. and Second Injury Fund, Injury No. 10-087819

FACTS:  The claimant testified at injured her low back on July 20, 2010. She underwent a fusion at L2-L3 with Dr. Robson on March 7, 2011. She testified the surgery did not relieve her symptoms. Dr. Robson opined in his reports that claimant’s continuing complaints following the March 7, 2011 surgery were related to chronic changes at L4-5 and L5-S1 level which were degenerative in nature and were not acutely injured during the work-related injury. Dr. Robson found her at MMI referable to the work injury on August 18, 2011 and released her from care with work restrictions.

Thereafter, the claimant agreed with her employer that she would not be able to continue working for the employer due to the work restrictions. TTD benefits were terminated as of August 30, 2011, due in part to the MMI report of Dr. Robson. The claimant testified she applied for and began receiving unemployment benefits upon termination of her TTD benefits and received unemployment benefits from September 2011 through December 2012. She also testified that since she left the employer, she has been unable to find a job and has not worked to date.

Claimant testified that when her unemployment benefits terminated in December 2012, she, at the urging of a few individuals, including her primary care physician, Dr. Maebe, applied for Social Security Disability benefits due to her back pain, surgery pain, anxiety, and depression. She was awarded SSD benefits as of January 8, 2013.

The employer sent the claimant back to see Dr. Coyle in 2016. She underwent a surgical fusion at L5-S1 May 22, 2017. Dr. Coyle released her to return to work on November 30, 2017 with restrictions of 30 pound lifting occasionally and 20 pounds frequently. The claimant testified that she had not conducted a job search since Dr. Coyle released her on November 30, 2017. She testified she cannot work due to back pain and lower extremity radicular pain and numbness. She also testified that she cannot drive a car very far from her home, and she is very limited in her daily life activities. She denied her vocational specialist, Mr. Kaver’s, testimony that she told him she had to rest in a reclining position for most of the day.

HOLDING:  The Judge found that the claimant was entitled to 42.5% PPD as a result of the July 20, 2010 work injury and was not PTD. He also did not find any liability against the Second Injury Fund.

With respect to the issue of past TTD benefits, the Judge noted that Dr. Robson found claimant at MMI as of August 18, 2011. He further noted that the claimant received unemployment benefits through November 14, 2012 and in order to receive the same, the claimant needed to certify each week that she met the basic requirements such as being able to work and being available for full time work. Therefore, he found that the claimant was not entitled to TTD benefits from September 2011 through November 14, 2012 while she was receiving unemployment benefits.

The Judge noted that the purpose of TTD benefits is to cover claimant’s healing process. TTD benefits are owed until claimant can find employment or his condition has reached MMI. When further medical procedures are not expected, temporary benefits are not owed and a temporary award for additional TTD benefits is not warranted.

For the period of time of November 14, 2012 through November 8, 2016, the Judge found that the claimant was not entitled to TTD benefits from the time of her termination of unemployment benefits on November 14, 2012 through Dr. Coyle’s reexamination of her on December 8, 2016. Evidence from vocational specialist, Ms. Gonzales, indicated the claimant was capable of obtaining employment in the open labor market as well as medical evidence of MMI status from Dr. Robson and Dr. Coyle.

For the period of time of November 8, 2016 through November 30, 2017, the Judge found that the claimant was entitled to receive TTD benefits for a second period of time from Dr. Coyle’s December 8, 2016 reexamination of claimant and during her treatment by Dr. Coyle, including the May 27, 2017 surgery and post-surgical care until Dr. Coyle released claimant at MMI as of November 30, 2017. The right to TTD during the second period of time terminated based on Dr. Coyle’s MMI finding on November 30, 2017.

With regard to the period of time of November 30, 2017 to the present, the Judge noted that the evidence demonstrated that the claimant was capable of looking for work as of the date of MMI on November 30, 2017 but did not. He stated that in this case, a refusal to look for work demonstrates an unwillingness to return to work, not an inability to return to work. He found that the claimant is not entitled to any additional TTD benefits from Dr. Coyle’s release of the claimant on November 30, 2017 to the present.

The Commission affirmed the Award of the ALJ.

Awarding of Attorney’s Fees is in the Discretion of ALJ

Roe v. Darden Restaurants, Inc., Injury No. 18-074813

FACTS: Claimant attorney asserted a 25% lien on the gross proceeds paid in the case including payment of medical bills regarding claimant’s treatment for her September 13, 2018 injury. Initially, claimant’s attorney requested a list and accounting from the employer of all of the medical bills which had already been paid. Furthermore, the evidence shows that the employer notified claimant’s attorney in January 2020 that they intended to pay the remaining bills. Proof of such payment was forwarded in April 2020 to claimant’s attorney. Despite the foregoing, claimant’s attorney never advised his client the bills had been paid and proceeded to prolong the case for an additional two years, including a request for a deposition of a corporate representative to confirm payment of the bills.

Interestingly, at the hearing in March 2022, the employee testified she had never received a bill from any healthcare provider in connection with her injury.

Following the hearing, the Administrative Law Judge awarded compensation but limited the claimant’s attorney’s fees to 25% of the PPD awarded.

HOLDING: The ALJ noted that the determination of attorney’s fees is at the discretion of the Court. She noted that the efforts of claimant’s attorney after the bills were paid in 2020 were unnecessary. Although the claimant’s attorney did review the bills and send the employer’s attorney a couple of letters prior to the payment of the bills, the services provided were no more than the average workers’ compensation case might require. The majority of the claimed hours of work were after the bills had already been paid.

The Commission affirmed the ALJ’s award finding that the limitation of attorney’s fees to 25% of the PPD awarded was fair and reasonable.

Under Strict Construction, There are No Exceptions for the Late Filing of an Application for Review.

Gray v. Hawthorn Children’s Psychiatric Hospital and Second Injury Fund, Case No. ED110400 (Mo. App. 2023).

FACTS:  On June 10, 2019, the Administrative Law Judge held a final hearing. On September 12, 2019, the ALJ issued the final Award denying benefits. The parties had 20 days from the date of the final Award to file an Application for Review with the Commission. The claimant attempted to mail her Application for Review on September 30, 2019, within the 20 day period, however, the mailing was returned to her by the USPS due to insufficient postage.

On December 3, 2020, the ALJ conducted an Evidentiary Hearing where the claimant offered testimony about the mailing. After considering the evidence from the remand Hearing, the Commission accepted the claimant’s Application for Review as timely. Thereafter, contrary to the ALJ’s decision, the Commission ordered employer to pay PPD benefits. The employer appealed.

HOLDING:  The Court reversed the Commission and set aside the Final Award. It found that the Commission acted in excess of its powers when it accepted the claimant’s Application for Review. The claimant’s Application was untimely and the statute, under strict construction, does not provide a good cause exception to the 20-day deadline.

The Court explained that even if they accepted the claimant’s argument that the postage was sufficient (which they do not) and the USPS erred in returning the mailing for insufficient postage, the workers’ compensation statute does not provide exceptions for late filings so the Commission did not have jurisdiction to review the claimant’s Application.