State News : Missouri

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2019 – September 2019

Claim Not Compensable Because Accident Caused Aggravation of Pre-Existing Condition but not a New Injury 

Jones vs. Orbital ATK (f/k/a ATK Alliant Techsystems, Inc.), Injury No. 13-031100

The claimant was walking at work when he stepped in a hole in the plant floor and twisted his right knee.  He previously underwent right knee surgery in 1999 for an ACL tear.  After his work injury, treatment was authorized with Dr. Samuelson, who noted significant DJD in the knee and findings indicative of chronic ACL deficiency, and the doctor opined that the claimant’s current condition was the result of degenerative changes and prior trauma.

Dr. Strong examined the claimant at the request of the employer and opined that the claimant had a severely arthritic knee and would require a total knee replacement.  However, Dr. Strong did not relate the need for a total knee replacement back to the work accident, which she opined caused a knee contusion.  Dr. Strong opined that the claimant would have needed a knee replacement at some point in time irrespective of the work accident.  At his attorney’s request, the claimant was examined by Dr. Stuckmeyer, who opined that the claimant’s physical exam was suspicious for a medial meniscus tear and recommended surgery.

At a Hearing, the ALJ held that the claimant did sustain an accident at work.  However, the ALJ found the opinions of Dr. Samuelson and Dr. Strong more persuasive than Dr. Stuckmeyer and held that the claimant did not sustain an injury as the result of the accident at work but instead had aggravated his pre-existing knee condition.  The ALJ differentiated this claim from the decision inTillotson by noting that the claimant in Tillotson had sustained meniscus tear as a result of his accident, but Dr. Strong and Dr. Samuelson credibly opined that the claimant sustained only an aggravation of his pre-existing condition without a new injury.  Therefore, the ALJ found that the claimant had not sustained a compensable injury as a result of his work accident and denied any benefits.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Not Injured in Course and Scope of Employment After Falling in Parking Lot Because Equally Exposed to Hazard or Risk of Tripping on Parking Island Outside of Work in Normal Non-Employment Life

Nugent vs. State of Missouri, Missouri State University, Injury No. 17-011083

On the date of injury, the claimant drove to a business center where she went to the Post Office on a personal errand.  She then decided to visit some work colleagues whose offices were located in the same business center to discuss something work-related.  After leaving the Post Office, she drove her car to the other end of the parking lot to be near the door of the Missouri State University offices.  As she was walking in the parking lot to go to those offices, she tripped on a parking island and sustained an injury to her wrist.

At a Hearing, the claimant testified that she lost her balance as she turned to head towards the building.  She was not carrying anything work-related at the time.  When asked whether there was anything defective in the area, she answered, “No! I missed a small curb that was clearly marked.”  Testimony also established that the claimant regularly used parking lots at Wal-Mart, an Urgent Care Clinic, a U.S. Bank, and two churches, and she also used the parking lot where she fell for non-work-related reasons such as using the Post Office.  Testimony established that these parking lots also had parking islands that were in similar or worse condition than the parking lot where the claimant fell.

The ALJ found that the claimant was not injured in the course and scope of her employment because the hazard or risk of injury was the parking island in the parking lot where she fell, which was a parking lot that she used outside of work in her normal non-employment life, and she was also routinely exposed to similar parking islands in similar parking lots in her normal non-employment life.  Therefore, the ALJ held that the employee was at least equally exposed, if not more exposed, to parking lots with similar parking islands outside of and unrelated to her employment in her normal non-employment life.  The ALJ also found that there was no particular defect to the parking island which caused an increased hazard or risk of injury greater than that in the parking lots she was exposed to outside of work.  Therefore, this injury was found to be not compensable.  On Appeal, the Commission affirmed the ALJ’s decision and Award. 

Editor’s Note:  Neither the ALJ’s opinion nor the Commission opinion discussed whether the parking lot was owned or controlled by the employer.

Court Reversed Commission Decision and Found Claimant Injured in Course and Scope of Employment Because the Risk or Hazard of Injury Was Slipping on Dirt/Ice on that Hallway Floor, and Claimant Was Injured in a Hallway Owned and Controlled by Employer

Annayeva vs. SAB of the TSD of the City of St. Louis and Treasurer of Missouri Custodian of the Second Injury Fund, Case No. ED107558 (Mo. App. 2019)

FACTS:  On January 8, 2013, the claimant, a teacher, sustained an injury when she slipped and fell.  She had just entered the school building using a general entrance and was carrying student papers and lesson plans, although she was not “clocked in” at the time.  She did not see any defects in the linoleum tile floor, and when filling out an investigation report, she did not mention any ice, salt, or dirt on the floor that caused her to slip and stated that she “could not determine the cause of the accident.”  The claimant alleged injuries to numerous body parts as well as a psychological injury.

At a Hearing, the ALJ found the claimant’s testimony was not credible and denied her claim due to lack of causation.  On appeal, the Commission affirmed the ALJ’s Award, but based on the grounds that the claimant was not injured in the course and scope of her employment.  The Commission found that nothing about the claimant’s work caused her to fall, and the hallway was “normal” where she fell.  When specifically asked by her attorney, the claimant testified that the floor was dirty and moist, but the Commission did not find her testimony credible and noted that none of the medical records noted any hazardous conditions on the hallway floor.  Therefore, the Commission found that the only risk source was that of walking on an even flat surface, to which the claimant was equally exposed in her normal non-employment life, and she failed to show that her injury arose out of and in the course and scope of employment.

HOLDING:  On appeal, the Court of Appeals reversed the Commission’s decision.  The Court held that when the Commission rejected the claimant’s testimony regarding the condition of the floor and found it was not credible, its opinion was based on conjecture and unsupported by sufficient competent evidence in the record, and the Commission’s Award did not provide a reasonable or substantial basis for refusing to believe the uncontradicted testimony of claimant.  With respect to the medical records, the Court also held that medical records were meant to provide proof of medical history and diagnosis, not proof of a hazard or risk present on the floor where the claimant fell.  Therefore, the fact that they did not mention dirt or ice on the floor was not persuasive.  The Court held that the claimant was injured in the course and scope of her employment because the risk of her injury was not simply walking on an even surface, it was walking in the employer’s hallway which was dirty with dirt and ice, where she walked every workday as a function of her employment.  The Court also found that it did not matter that the claimant had not yet clocked in at the time of her injury because the employer owned and controlled the hallway where she fell.  Therefore, the Court reversed the Commission’s decision and remanded the matter back to the Commission for additional findings with respect to medical causation.

Court Affirms Commission’s Decision that Claimant Not Employee of Ginger C, and Ginger C Not a Statutory Employer

Hayes vs. Ginger C, LLC and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD82256 (Mo. App. 2019)

FACTS:  Ginger C (GC) worked as a rental business and did not perform construction or have any employees.  It did hire three contractors, including the claimant, to repair and remodel buildings as needed.  On June 26, 2013, the claimant and two other contractors were performing a concrete job and sustained alkali burns from the concrete.  GC did not have workers’ compensation insurance.  The claimant sought PPD benefits from GC and the Fund. 

At a Hearing, the ALJ expressly found the claimant was not a credible as a witness, because his testimony was exaggerated and inconsistent with his deposition testimony and the testimony of the other two contractors and Mr. Asmar, GC’s owner.  The ALJ found that credible testimony established that GC did not issue W-2’s and instead issued 1099’s to each contractor, Mr. Asmar was never present at the job sites and did not control or direct the way that the claimant or other contractors performed their work, the claimant owned and used his own tools, he could choose the hours he worked, and he could turn down maintenance calls if he wanted.  Therefore, the ALJ found that the claimant was an independent contractor and not an “employee” under workers’ compensation.  The ALJ also found that GC was not an “employer” under workers’ compensation because GC’s regular business was apartment rental, not construction, and it did not have any employees.  Therefore, the ALJ denied any benefits.  On appeal, the Commission affirmed the ALJ’s Decision and Award.

HOLDING:  On appeal, the claimant argued that he was an employee of GC.  The Court noted that the key to determining whether a claimant is an employee or an independent contractor is the amount of control exercised by the alleged employer, and the Commission was correct in determining that GC did not exercise sufficient control over the claimant’s work to render him an employee.  The claimant also argued that GC was his statutory employer at the time of his injury.  The Court noted that the claimant was performing work for GC pursuant to a contract, and he was injured while performing work on GC property.  Therefore, GC may be a statutory employer if the work the claimant was performing at the time of his injury was in the usual course of GC’s business.  The Court noted that the claimant was injured while performing concrete work, and there was no evidence that concrete work was routinely performed by GC on its rental properties.  Therefore, there was insufficient evidence to find that GC would have been required to hire permanent employees to perform the concrete work absent the agreement with the claimant, and the claimant did not sustain his burden to establish a statutory employment relationship with GC.  The Court affirmed the Commission’s decision and Award.

Employer Liable for Shoulder Replacement Despite Pre-Existing Condition Because Surgery Reasonably Required to Cure and Relieve Claimant of Effects of Work Injury

Persley vs. The Parking Spot, Injury No. 14-079573

On September 4, 2014, the claimant fell and sustained an injury to his left shoulder.  X-rays and an MRI of the shoulder showed significant pre-existing conditions.  When the employer denied treatment, the claimant underwent unauthorized treatment with Dr. Satterlee, who performed a reverse total shoulder replacement on May 6, 2015.  Dr. Stuckmeyer examined the claimant at his attorney’s request and opined that he had pre-existing asymptomatic rotator cuff pathology as well as an acute injury due to the work accident, and he opined that the procedure performed by Dr. Satterlee was reasonably required to cure and relieve the claimant from the effects of the work injury.  Dr. Clymer agreed that the claimant had significant pre-existing conditions in the shoulder and opined the work accident aggravated the pre-existing condition and possibly caused some additional rotator cuff tearing and joint surface damage.  Dr. Clymer agreed that the shoulder replacement was the most reasonable approach given the claimant’s chronic degenerative problems, but he opined the prevailing factor causing the need for surgery was the claimant’s pre-existing condition rather than the work accident.

At a Hearing, the employer argued that it was not responsible for the medical treatment the claimant underwent with Dr. Satterlee because the claimant’s pre-existing chronic condition was the prevailing factor in causing the need for a total shoulder arthroplasty, not the work accident.  However, the ALJ noted that the prevailing factor was the incorrect standard.  Instead, pursuant to the Court’s decision inTillotson, an employer is required to provide treatment reasonably required to cure and relieve the effects of the injury.  The ALJ opined that the shoulder replacement was reasonably required to cure and relieve the claimant from the work injury, and therefore, the employer was responsible for paying for that treatment.  The ALJ ordered the employer to pay unpaid medical bills, provide future medical care, and pay TTD and PPD benefits.  On Appeal, the Commission affirmed the ALJ’s decision and Award. 

Injuries Sustained When Tripped by Authorized Treatment Provider Were Compensable

Schoen vs. Mid-Missouri Mental Health Center and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Case No. WD82258 (Mo. App. 2019)

FACTS:  The claimant initially complained of throat and eye irritation after exposure to Cypermethrin on May 8, 2009.  She sought emergency treatment on her own and returned to work immediately without limitations in regards to that exposure.  She had continuing complaints and was sent by the employer to Dr. Runde for evaluation on May 22, 2009.  While at Dr. Runde’s office, a person with a small dog was sitting in the waiting room.  The claimant was being escorted to an exam area for pulmonary function tests when Dr. Runde attempted to walk around the dog and accidentally tripped the claimant, causing her to fall.  She alleged injuries to her cervical and lumbar spine, left shoulder, and left knee as a result of her fall.

At a hearing, the ALJ found that the injuries the claimant sustained when she fell in Dr. Runde’s office were compensable injuries because she sustained them while seeking authorized treatment for the chemical exposure.  The Commission reversed the ALJ’s decision and Award and held that the injuries the claimant sustained at Dr. Runde’s office were not compensable, despite the fact that the claimant was undergoing authorized treatment, because those injuries were not the direct result of any necessary medical treatment for her primary injury, the Cypermethrin exposure.

HELD:  On appeal, the Court of Appeals reversed the Commission’s decision and found that the injuries the claimant sustained in Dr. Runde’s office were compensable.  The Court reasoned that the claimant was tripped while following her doctor’s directive, and being directed to and from other locations for testing is a part of authorized medical treatment.  Since the claimant was injured while undergoing authorized medical treatment, her injuries were a natural and probable consequence flowing from the original injury, and the original injury was the prevailing factor in causing her additional injuries.  The Court remanded the matter back to the Commission.

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2019 – June 2019

Work Accident Prevailing Factor in Causing Ankle Injury and Resulting Disability, Including Death Due to Pulmonary Embolism

Knutter vs. American National Insurance, Case No. SD35644 (Mo. App. 2019)

FACTS:  On March 25, 2013, the employee sustained a non-displaced right ankle malleolus fracture, which was treated conservatively, and the claimant was advised to use a wheelchair.  Less than two months later, she died as the result of a pulmonary embolism.  The claimant filed a Claim for Compensation for death benefits on behalf of the employee.

Doctors disagreed as to whether the claimant’s ankle injury was the prevailing factor in causing the PE and death.  Dr. Wright provided a report at the claimant’s attorney’s request and opined that the employee had underlying risk factors, but the employee’s immobility following her ankle injury was the tipping point that caused the PE.  Dr. J. Mullins provided a report at the employer/insurer’s request and opined there was a lack of evidence directly tying the ankle fracture to DVT or a blood clot, and he noted that the employee had other contributing factors such as obesity, a sedentary lifestyle, obstructive sleep apnea, and chronic kidney disease, all of which raised her risk of DVT.  Dr. Cross reviewed the medical records at the employer/insurer’s request and opined that without an autopsy, it was impossible to conclude that the claimant had DVT in the lower extremity that may have caused a PE to the lungs.

After a Hearing, the ALJ denied death benefits and opined it would be pure speculation to causally relate the PE back to the work injury since there was no autopsy or evidence in the medical records directly tying a blood clot or DVT to the claimant’s injury or the use of a wheelchair.  On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission found the expert opinion of Dr. Wright credible and concluded that it was not coincidence that the claimant developed a PE just forty-five days after being confined to a wheelchair due to her injury.

HOLDING:  The employer/insurer appealed the Commission’s decision, which was affirmed by the Court, who specifically found that the Commission’s decision was supported by sufficient competent evidence on the record and deferred to the Commission’s credibility determinations.

Claimant's Work as Firefighter Prevailing Factor in Development of Non-Hodgkin's Lymphoma and Claimant's Death

Cheney (Deceased), Cheney spouse vs. City of Gladstone, Case No. WD81939 (Mo. App. 2019)

FACTS:  The claimant, a longtime firefighter, developed non-Hodgkin’s lymphoma (NHL).  He filed a workers’ compensation claim, underwent treatment, and subsequently died as a result of the disease on May 22, 2014.  He was exposed to smoke and other emissions during his work as a firefighter, including fumes from burning household objects that contained toxins and carcinogenic chemicals.  He was also regularly exposed to diesel fumes in the fire station due to poor ventilation.

Dr. Lockey and Dr. Koprivica testified that the claimant’s occupational exposure as a firefighter was the prevailing factor in causing his NHL.  Dr. Lockey cited a statistical correlation between firefighting and NHL.  Dr. Shah testified on behalf of the employer that NHL has no known cause and is a disease to the lymphatic system, not the respiratory tract or cardiovascular system, and age, race, and obesity are known risk factors for NHL.  The claimant’s treating oncologist also opined in a report that it is impossible to know the cause of NHL.

At a hearing, the ALJ found that the claimant failed to prove that his job duties as a firefighter were the prevailing factor in causing his NHL and opined that statistical correlation does not equal causation.  On Appeal, the Commission reversed the ALJ’s decision and Award and held that with respect to occupational disease, the claimant does not need to establish causation to a medical certainty.  The Commission found the claim compensable because there was an increased risk of contracting NHL as a result of occupational exposure as a firefighter, and the employer was ordered to pay death benefits to the claimant’s dependent widow.

HOLDING:  The employer appealed, and the Court of Appeals affirmed the Commission’s decision and Award.  The Court noted that the Commission had expressly found the expert opinions of Dr. Lockey and Dr. Koprivica the most credible and persuasive with respect to causation and the prevailing factor in the development of the claimant’s NHL, and it declined to disturb the Commission’s credibility findings.

Court Reversed Circuit Court Decision Granting Summary Judgment Finding a Genuine Issue of Material Fact as to Whether Defendant Engaged in Affirmative Negligent Act That Purposefully and Dangerously Caused or Increased Risk of Injury to Employee

Mems vs. Labruyere, Case No. ED106319 (Mo. App. 2019)

FACTS:  On June 27, 2013, the defendant was removing a heavy overhead roller door from a mechanical assembly and caused the door to suddenly detach and fall onto the claimant, causing injury.  The Circuit Court granted summary judgment at the defendant’s request, holding that the employee failed to establish a genuinely disputed fact that the defendant engaged in “purposeful, inherently dangerous conduct.”  The employee appealed.

HOLDING:  The Court of Appeals first looked to whether the defendant breeched a duty owed to the employee by engaging in “an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.”  The Court first found that the defendant performed an affirmative act by loosening the bolts and prying the roller door loose from its wall anchors.  It also held that the defendant’s actions werepurposeful because he meant to do the physical acts of

detaching the bolts and prying the roller door.  He did not need to intend to cause harm for his actions to be purposeful.  The Court then found that there was sufficient evidence for a jury to find that the defendant’s actions werenegligent and dangerously caused or increased the risk of injury to the employee.  The Court also found that the defendant’s actions created a transitory risk to the employee that was not reasonably foreseeable by the employer, and therefore, he breached a duty that was separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  Therefore, the Circuit Court’s award of summary judgment was reversed, and this matter was remanded for trial.

Compensable Injury Because No Evidence Claimant was Equally Exposed to Hazard or Risk of Injury of Pulling 2-Wheeled Cart Through Congested Doorway Outside of Work in Non-Employment Life

McDowell vs. St. Luke's Hospital of Kansas City, Case No. WD82076 (Mo. App. 2019) 

FACTS:  The claimant had a pre-existing hip condition which caused her to use a support cane and transport her belongings between her vehicle and work using a 2-wheeled rolling cart. She parked in a parking garage at work, where she frequently encountered other people.  On her date of injury, the claimant went through a door in the garage and attempted to maneuver to the right to avoid another employee, at which time the wheel of her rolling cart pulled and caught on the door frame, causing her to fall to the ground and fracture her left wrist. 

At a hearing, the claimant testified that she only used the cart when arriving to and departing from work, and she exclusively used the north parking garage because it was the door closest to her destination.  The ALJ found the claim compensable because the risk source was pulling a cart of work-related supplies through a congested entryway, which was related to the workplace and not a risk source the claimant would be likely to encounter in her non-work life.  The Commission affirmed the ALJ’s decision and Award, and the employer appealed the Commission’s decision.

HOLDING:  On appeal, the Court held that the Commission did not err when it held that the claimant’s injury arose out of and in the course and scope of employment.  The employer first argued there was no causal nexus between the claimant’s use of the rolling cart and her work because the cart was not necessary for her to complete her work.  However, the Court found that the risk source of the claimant’s injury was the door frame of a congested exit, and there was no evidence to suggest that the claimant was equally exposed to the cause of this injury outside of work.  The employer also argued that the risk of injury was unrelated to the claimant’s work because she only used the cart due to her prior hip replacement.  However, the Court held that an using an assistive device due to a pre-existing condition does not render an injury involving the use of that assistive device non-compensable.

Claimant Not Injured in Course and Scope of Employment Because Equally Exposed to Risk Source of Descending Stairs Outside of Work in His Normal Non-Employment Life

Marks vs. Missouri Department of Corrections, Injury No. 17-086644

The claimant was required to perform security checks and cell searches, which required him to go up and down stairs at work.  On his date of injury, he was descending the stairs when he mis-stepped off a stair, felt his right knee twist, and injured the same.  He reported the injury, but no treatment was authorized by the employer.  He completed a questionnaire four days after the accident wherein he denied that he was responding to a code or other emergency-type situation, that he was distracted for any reason while on the stairs, that he was carrying anything at the time, that there were any offenders in the area, or that there was anything on the floor or physically wrong with the steps.  When asked specifically to state what caused his injury, the claimant answered that he “stepped off the step wrong.”

At a hearing, the claimant testified that he also uses stairs outside of work to access his apartment.   He did not testify that there was anything physically defective about the stairs.  The claimant did testify that he was performing security training and was looking back for another officer to ensure her safety when he missed the step.  However, the ALJ did not find his testimony credible in light of the fact that it was inconsistent with his prior statements just four days after the date of injury.

The ALJ held that the accident and injury did not arise out of and in the course and scope of employment because the hazard or risk of injury was descending stairs and stepping wrong, which was unrelated to the claimant’s employment, and the claimant was equally exposed to that risk outside of work in his normal non-employment life.  The ALJ found that the claimant was simply walking down the stairs and was not carrying anything, responding to a code, hurrying to complete a task, distracted, or looking for a co-worker.  The ALJ also found there was nothing on the stairs, and the stairs were not physically defective.  The ALJ further opined that even had the claimant been looking at his co-worker and attempting to complete a task in a timely manner, the only risk source in this case was walking down stairs.  Therefore, the ALJ found that the claimant failed to meet his burden of proof that he sustained a compensable injury.  On Appeal, the Commission affirmed the ALJ’s Decision and Award.

Windsor Not Liable for Benefits as Statutory Employer, Because ALJ Found No Joint ans Several Liability with Primary Employer, A Staffing Agency

Chilton vs. Productive Staffing Ajinomoto Windsor Inc., Injury No. 15-098442

The claimant was hired by staffing agency Productive Staffing (PS) to work at Windsor Foods (WF), where he performed maintenance work.  He received paychecks through PS, but daily instructions were given by his supervisors at WF.  PS had a contract with WF noting that PS would provide all workers’ compensation insurance for employees.  The claimant had an employment contract with PS but not with WF.  On December 22, 2015, claimant sustained an injury to his right hand.  PS authorized treatment and paid TTD.  The claimant filed a Claim for Compensation against both PS and WF.  PS filed a timely Answer, but WF did not.  The claimant reached a settlement agreement with PS and then pursued additional benefits against WF.

At a hearing, the claimant argued that WF was a statutory employer.  The ALJ noted that a 3-part test determines statutory employment, including whether: the work at the time of the injury was being performed pursuant to a contract; the injury occurred on or about the premises of the alleged statutory employer; and the work was performed in the usual course of the alleged statutory employer’s business.  The ALJ found that all three parts of the statutory employment test had been met, and WF was a statutory employer of claimant.  However, the ALJ also held that WF was not liable for benefits because PS was the immediately employer, and pursuant to statute, no other employer shall be liable if the employee was insured by his immediate employer, which was the case here.

The claimant argued that PS and WF were joint employers and were jointly and severally liable for benefits.  However, the ALJ rejected this argument and held that PS and WF were not joint employers.  The ALJ noted that joint employment occurs when a single employee is under contract with two employers, under simultaneous control of both, and performs services for both employers, and the services are the same or closely related to that of the other.  The ALJ noted that the claimant had an employment contract with PS but not with WF, and there was no persuasive evidence of simultaneous control or that the claimant provided services for both employers that were the same or closely related.  Therefore, the ALJ denied the claim against WF.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Court of Appeals Reversed Commission Decision and Found That Employer That Went Out of Business Before 2014 Could Still Be Liable for Enhanced Benefits by Fully Insuring Its Liability for Occupational Disease at Time of Last Exposure

Hegger vs. Valley Farm Dairy Company, Case No. ED106278 (Mo. App. 2019)

FACTS:  The employee was last exposed to asbestos through the employer in 1984.  The employer went out of business in 1998.  The employee then died in 2015 from mesothelioma caused by exposure to asbestos while working for the employer.  He initially filed a Claim for Compensation, and his children subsequently sought benefits after his death.

At a Hearing, the ALJ addressed the sole issue of enhanced benefits under Section 287.200.4(3).  The ALJ found that the claimant was last exposed to asbestos while working for the employer, and his exposure was the prevailing factor for his diagnosis of mesothelioma which resulted in his death.  However, neither of the insurers who insured the employer during the claimant’s dates of employment were liable for paying enhanced benefits because the enhanced benefits provision did not go into effect until January 1, 2014.  The ALJ reasoned that the employer could not possibly have elected to be liable for enhanced benefits, because it went out of business in 1998.  The ALJ also held that insuring its liability for occupational diseases in 1984 did not qualify as electing to be liable for enhanced benefits, which are separate from and additional to benefits otherwise payable for an occupational disease.  Therefore, the claimant was not entitled to enhanced benefits.  On Appeal, the Commission affirmed and adopted the ALJ’s decision and Award.

HOLDING:  On appeal, the claimants argued that the Commission erred because the employer did elect to accept liability for benefits under strict construction when it insured its liability at the time of last exposure and the employer was not required to provide the Division with notice of an election to accept liability.  The Court of Appeals first noted that the employer was fully insured on the date of last exposure and held that this meant the employer had elected to accept liability for any occupational diseases that manifested from that exposure “regardless of the length of time” it took for the occupational disease to manifest and be compensable.  The Court held that it did not matter that the statute regarding enhanced benefits did not exist at the time of last exposure.  With respect to the claimants’ second point on appeal, the Court noted that employers could accept liability for enhanced benefits by “insuring their liability, by qualifying as a self-insurer, or by becoming a member of a group insurance pool.”  The Court concluded that under strict construction of the statute, only employers who chose to become a member of a group insurance pool were required to provide notice to the Division of an election to accept liability for enhanced benefits.  Therefore, the Court reversed the Commission’s decision and Award and remanded this matter to the Commission to determine which insurer is liable for paying enhanced benefits.

Employer/Insurer Liable for PTD After Rotator Cuff Tear Due to Permanent Lifting Restrictions, Age, Education, and Other Life Factors

Duarte (Deceased), Dobrauc vs. Butterball, LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-111523

The 76-year-old claimant obtained degrees in political science and law in Peru and also worked as an accountant, secretary, and owned two businesses while in Peru.  When he immigrated to the United States in 2003, he was 63-years-old, spoke very little English, and did not have a U.S. driver’s license.  He briefly worked for a florist and then on the line at a cereal plant before he started working for the employer, where his job duties involved pulling skin and cutting meat off of hanging turkey carcasses on the line using his right arm.  The claimant developed right shoulder pain, and he was diagnosed with a chronic rotator cuff tear and underwent two unauthorized shoulder surgeries in 2009 and 2010.  He has not worked since March 31, 2009.  He did collect unemployment benefits for a time in 2010 and 2011.  Although the claimant had prior medical conditions including cataracts, DDD in the lumbar and cervical spine, and tenosynovitis in the left wrist, he denied that those conditions hindered or impaired his ability to work prior to 2009.

Dr. Volarich examined the claimant at his attorney’s request, causally related the claimant’s right shoulder condition and need for surgery back to his job duties, placed the claimant at MMI, and recommended permanent lifting restrictions for the right arm.  Dr. Parmet examined the claimant at the employer/insurer’s request and opined that the prevailing cause of his need for treatment was age and preexisting arthritis, although his job duties could have aggravated his condition.  Mr. Eldred provided a vocational report at the request of claimant’s counsel and opined that the claimant did not have a preexisting disability that constituted a hindrance or obstacle to employment and was PTD as a result of the primary injury alone.  Mr. Dreiling provided a vocational report at the employer/insurer’s request and opined that the claimant was unemployable due to a combination of his primary injury and preexisting conditions.

At a hearing, the ALJ found the opinions of Dr. Volarich and Mr. Eldred more credible than the opinions of Dr. Parmet and Mr. Dreiling and held that the claimant sustained a compensable injury by occupational disease to his right shoulder.  The ALJ also noted the claimant’s 5-pound lifting restriction, noted that he did not have any permanent restrictions before 2009, and found the claimant PTD as a result of the primary work injury alone.  The ALJ opined that although the claimant was previously limited to manual labor by his age, education, and other life factors, these were not pre-existing disabilities that triggered Fund liability.  The ALJ ordered the employer/insurer to pay TTD benefits from April 1, 2009 until his last office visit with Dr. Lieurance on April 29, 2010 as well as PTD and future medical.  On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it held that the claimant’s MMI date was the date of Dr. Volarich’s examination on June 12, 2013, because it was the first medical record to expressly address MMI.  However, the Commission also held that the claimant was not entitled to TTD during the periods in 2010 and 2011 where he was receiving unemployment.

Claim Barred by Statute of Limitations Because Medical Payments Made in Kansas Did Not Toll Statute of Limitations in Missouri Under Strict Construction

Austin vs. AM Mechanical Services and Missouri State Treasurer as Custodian of the Second Injury Fund, Injury No. 11-112011

On March 10, 2011, the claimant sustained a neck injury and also had complaints in his wrists and shoulder.  He underwent a multi-level cervical fusion as well as surgeries on the bilateral wrists/hands and right elbow.  The claimant’s injury occurred in Kansas, but he entered a contract for employment in Missouri.  He previously settled a workers’ compensation case referable to this accident in Kansas.  The claimant testified that he was under duress at the time of the settlement, which closed out all claims in all jurisdictions for injuries related to the date of injury.  This was approved at a conference before an ALJ in Kansas. 

At a Hearing in Missouri, the ALJ held that he did not have jurisdiction to rule on the validity of the Kansas settlement, and there was no evidence showing that the employer pressured, forced or coerced the claimant into the settlement agreement.  The ALJ noted that he must give full faith and credit to the Kansas settlement agreement and denied the claimant’s claim for benefits in Missouri against the employer.

The ALJ also noted that the claim against the Fund was denied because the statute of limitations had run.  The claimant argued that the treatment provided by the employer in Kansas pursuant to the Kansas claim tolled the statute of limitations, but the ALJ noted that the statute had to be strictly construed in Missouri.  Therefore, only payments made pursuant to Chapter 287 in Missouri, and not payments made pursuant to the Kansas Workers’ Compensation Act, would toll the Missouri statute of limitations.  The ALJ also held that there is no authority stating that payment for an examination for rating purposes tolls the limitation period, only payment for a doctor’s bill for treatment.  Therefore, the claimant’s claim in Missouri was denied in full.  The employee appealed the ALJ’s decision, which was affirmed by the Commission.

Claimant Not Owed Past TTD After Terminated for Post-Injury Misconduct When He Failed To Work For Several Months After Being Released From Care Without Restrictions and Failed to Follow Employer Policies

Hicks vs. Missouri Department of Corrections and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-004926

The claimant was working as a corrections officer and was undergoing training when he sustained an injury to his left arm and shoulder.  He underwent authorized treatment, including a surgery performed by Dr. Emanuel, who placed the claimant at MMI without restrictions on August 26, 2014.  However, the claimant did not feel he could return to work full duty, and light duty was not available.  He demanded a second opinion and additional treatment, which was denied, and he advised that he would not come back to work until his shoulder was fixed.  The claimant was then a no call, no show for work during most or all of September 2014.  He was aware of the employer’s attendance policies due to his recent training.  Attendance policies required the claimant to notify his supervisor at least 60 minutes prior to the beginning of the work shift each day he was unable to work.  The claimant was also instructed by the employer via letter to return to work no later than October 27, 2014, and if he was unable to do so, to submit a voluntary resignation in writing effective on that date.  The claimant did not do so, did not request additional leave without pay, and was ineligible for FMLA benefits.  A pre-disciplinary meeting was scheduled for October 22, 2014, but the claimant did not attend, and his employment was subsequently terminated.

At his attorney’s request, the claimant was evaluated by Dr. Snyder, who opined that the claimant required additional surgery and was unable to work from the date of injury until January 2015.  The employer then sent the claimant back to Dr. Emanuel, who performed a second surgery on April 1, 2015.  The claimant subsequently underwent a third authorized shoulder surgery, which was performed on December 17, 2015 by Dr. Lenarz, who subsequently placed the claimant at MMI again on February 10, 2016.

At a Hearing, the claimant demanded TTD to cover the period from his date of injury until he reached MMI on February 10, 2016.  The employer argued that he forfeited his right to additional TTD when he was terminated for post-injury misconduct.  However, the ALJ held that the claimant was unable to return to any employment during that period and failure to comply with the employer’s attendance policies did not rise to the level of post-injury misconduct.  The ALJ also held that pursuant to statute, post-injury misconduct does not include absence from the workplace due to a workplace injury.  Therefore, the ALJ awarded full TTD benefits in the amount of $26,999.12 as well as PPD.

The employer appealed, and the Commission modified the ALJ’s decision and Award with respect to TTD.  The Commission found that the claimant only called in sporadically to report absences between September and November 2014, despite the fact that he did not return to work in violation of attendance policies, and he failed to make arrangements with his supervisor, request additional leave without pay to cover his absences, respond to the employer’s letters, or attend the pre-disciplinary hearing.  The Commission found that the employer did not terminate the claimant merely because of his absences but because he failed to follow proper procedures to report his absences, which was post-injury misconduct.  Therefore, the claimant was not entitled to TTD benefits after his termination.

When Primary Work Injury Occurs After January 1, 2014, Claimant Not Entitled to PPD Benefits From SIF

Douglas Cosby vs. Treasurer of the State of Missouri as Custodian of Second Injury Fund, Case No. SC97317 (S. Ct. 2019)

FACTS: On January 22, 2014, Douglas Cosby injured his left knee at work. He filed a workers’ compensation claim against the employer and Second Injury Fund alleging he was totally or, alternatively, partially disabled as a result of his knee injury combined with his pre-existing disabilities, which included bilateral inguinal hernias in 2002, a left shoulder rotator cuff tear in 2004, and a right shoulder rotator cuff tear in 2008.

At a hearing, the ALJ determined the claimant was not permanently and totally disabled. Also, the ALJ found that the claimant was not entitled to PPD benefits due to the fact that §287.220.3(2) which was added to the Statue in 2013 applied to the case at hand, which states that PPD claims against the Fund shall not be filed for injuries occurring after January 1, 2014. The Commission affirmed the ALJ’s award.

HOLDING: The claimant’s attorney made various arguments, including that §287.220.3(2) did not apply because the claimant’s pre-existing disabilities and/or injuries occurred prior to January 1, 2014. The Court did not agree, as it noted that “injury” is defined in the statute as “an injury which has arisen out of and in the course of the employment.” Therefore, “injury” pertained to the primary work-related injury, and since that injury occurred and a Claim was filed after January 1, 2014, §287.220.3(2) does apply, and therefore the claimant is not entitled to PPD benefits from the Fund. The claimant’s attorney also made other arguments, including that §287.220.3(2) violates the open courts provision, due process and equal protection, but the Court was not persuaded. Therefore, the Court upheld the Commission’s decision and concluded that the claimant was not entitled to any PPD benefits from the Fund.

Simon Law Group, P.C.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2019 – March 2019

Claimant Not Injured in Course and Scope of Employment Because Claimant Was Equally Exposed to Risk of Walking on Even Flat Surface Outside of Work                     

Annayeva vs. SAB of the TSD of the City of St. Louis and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-000909

On January 8, 2013, the claimant, a teacher, sustained an injury when she slipped and fell.  She had just entered the school building using a general entrance and was carrying student papers and lesson plans, although she was not “clocked in” at the time.  She did not see any defects in the linoleum tile floor, and when filling out an investigation report, she did not mention any ice, salt, or dirt on the floor that caused her to slip and stated that she “could not determine the cause of the accident.”  The claimant alleged injuries to numerous body parts as well as a psychological injury.  She underwent minimal authorized treatment, and when no additional treatment was authorized, she treated on her own.

At a Hearing, the ALJ found the claimant’s testimony not credible and opined that her description of her disabilities verged on the point of malingering.  The ALJ noted there was little or no objective medical findings to support any of the claimant’s anomalies, and her claim was denied due to lack of causation.

On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion wherein the Commission found that this matter was not compensable because the claimant was not injured in the course and scope of her employment.  The Commission found that nothing about the claimant’s work caused her to fall, and the hallway was “normal” where she fell.  When specifically asked by her attorney, the claimant testified that the floor was dirty and moist, but the Commission did not find her testimony credible and noted that none of the medical records noted any hazardous conditions on the hallway floor.  The Commission found that without additional support in the record showing the alleged hazardous condition of the hallway floor, the only risk source was that of walking on an even flat surface, to which the claimant was equally exposed in her normal non-employment life.  Therefore, the claimant failed to show that her injury arose out of and in the course and scope of employment.

Claimant Injured in Course and Scope of Employment in MVA While Traveling to Patient's Home;  Employer Not Entitled to Safety Violation Penalty, Even Though Claimant Was Not Wearing Seatbelt, Because Employer Did Not Have a Separate Safety Policy Requiring Use of Seatbelt

Hayden vs. SW Center for Independent Living, Injury No. 16-104167

The claimant was injured on October 7, 2016 while working as a home health aide.  She was required to secure all health forms and documents for the company regarding her patients in a secure place within her home, received assignments by phone call from the scheduler, and she frequently traveled directly from home to the first patient’s residence to begin working.  On the date of accident, the claimant dropped off her son at school, returned to her home, completed initial paperwork on her patients, and then began driving from her home to a patient’s home.  The route she was taking was a direct route to her patient’s home, although in the opposite direction of the employer’s principal place of business.  She was in a motor vehicle accident and was ejected from the vehicle.  She sustained multiple injuries to her back, ribs, and shoulders as well as to her left lower extremity, which was amputated below the knee.

The claimant gave conflicting statements regarding whether she was wearing a seatbelt at the time of the accident, but the accident report indicates that she was not using a seatbelt.  The employer presented no evidence of a specific safety rule requiring the use of a seatbelt, and the claimant could not recall such a rule.

In a temporary and partial Award, the ALJ found that the claimant was traveling to her first assignment of the day at the time of the accident, not to the employer’s principal place of business.  The ALJ also found that the claimant was traveling to that location solely for the benefit of the employer, and traveling for work placed her at an increased risk of injury that to which she was exposed in her normal non-employment life.  Therefore, the ALJ found that the claimant was injured within the course and scope of her employment.  The ALJ also found that the employer was not entitled to a safety violation penalty simply because the claimant failed to wear a seatbelt while operating a motor vehicle, despite the fact that wearing a seatbelt was required by law.  This was because there was no credible evidence that the employer had adopted a separate safety rule requiring that employees wear seatbelts while driving.  On Appeal, the Commission affirmed the ALJ’s Decision and Award.

Employer/Insurer Admitted Prevailing Factor When It Failed to Timely Answer the Claim for Compensation, and Commission Found Injury Occurred Within Course and Scope of Employment

Wright vs. Echota Systems, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-091385

In April 2012, the claimant, a 70-year-old electrician, was required to climb seven flights of stairs to reach his tools because the elevator was out of order.  When he reached the seventh floor, he suffered a stroke followed by a series of subsequent strokes in 2014 and 2015.  The claimant did have a prior cardio embolic stroke as well as a history of CAD, atrial fibrillation, and hypertension, and he was taking blood thinners on his date of injury.  Evidence also established that he had done work of a similar nature at other high-rise buildings at other locations in the months leading up to his date of injury.  The claimant’s attorney filed a Claim alleging that the claimant was PTD and also that the claimant was injured “in the course and scope of his employment while climbing seven flights of stairs and exerting unusual and extraordinary physical exertion, which was the prevailing factor in causing his stroke and resulting in severe injury and permanent disability.”

Dr. Farrar and Dr. Sand opined that the prevailing factor in causing the claimant’s stroke was his preexisting medical conditions, not climbing seven flights of stairs.  Dr. Koprivica examined the claimant at the claimant’s attorney’s request and opined that the claimant was at risk of having a stroke because of his medical conditions, but the prevailing factor in causing this particular stroke was the unusual stress of climbing seven flights of stairs.

At a Hearing, the ALJ noted that the employer/insurer had filed a late Answer to the Claim for Compensation, and therefore, all facts alleged in the claim were deemed as admitted.  The ALJ found that this included the allegation that climbing seven flights of stairs was the prevailing factor in causing the stroke and resulting injury and disability.  The ALJ found that the claimant was injured in the course and scope of employment and was PTD as a result of the primary injury alone, and the employer/insurer were responsible for paying PTD benefits as well as past and future medical.

On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion.  The Commission found that the test for course and scope has two prongs.  Whether the accident was the prevailing factor in causing the injury was the first prong, and this was admitted when the employer/insurer failed to file a timely Answer.  The second prong was whether the hazard or risk was unrelated to the employment to which the claimant would have been equally exposed outside of work in his normal nonemployment life, and the Commission held that it was not.  Therefore, because “exerting unusual and extraordinary physical exertion” resulting from climbing seven flights of stairs was the prevailing factor in causing the injury, and the stroke did not come from a risk unrelated to employment, the ALJ made the correct legal conclusion that the claimant’s injury arose out of and in the course of his employment.

No Missouri Jurisdiction Because Accident Did Not Occur in Missouri, and Claimant Failed to Show That Contract of Employment was Made in Missouri or Employment was Principally Located in Missouri During 13 Calendar Weeks Prior to Diagnosis

Wilson vs. Liquid Environmental Solutions Corporation and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-109554

The claimant worked as a driver for the employer, and he testified that his routes required him to drive in Kansas, Nebraska, Missouri, and Arkansas.  However, the employer’s principal office was located in Kansas, and the claimant was required to begin and end each day by dropping off his truck there.  At his deposition, he did not indicate how much driving he did in each state, and he did not present any evidence regarding where a contract of employment was entered into.  In his Claim for Compensation, the claimant alleged that he developed bilateral carpal and cubital tunnel syndrome as a result of his repetitive job duties as a driver.

At a Hearing, the ALJ ultimately found this matter was not compensable because the claimant failed to establish Missouri jurisdiction.  The ALJ found that the claimant failed to present any evidence regarding contract formation or that his employment was principally localized in Missouri within the 13 weeks preceding the work injury.  The ALJ noted that the employer was located in Kansas, the claimant drove through Missouri but did not work from a Missouri location, and he received his job assignments at the Kansas office.  The ALJ found that the claimant bears the burden of proving his employment was principally located in Missouri, and he failed to meet that burden.

On Appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it noted that some important factors to be considered in determining whether employment is localized in Missouri include:  Where the workday starts and ends; whether the employer has an office in the state claimed; whether the duties performed in a state are merely incidental to the position; where the employee receives orders, pay, and supervision; if the employee’s duties required travel, whether evidence establishes that most miles are within a certain state; and whether a base of operations is in the state.  The Commission found that the claimant failed to establish that any of those were true of Missouri in this claim.

ALJ Finds Employer/Insurer Liable for PTD Due to Permanent Work Restrictions   and Claimant’s Need to Lie Down During Day

Hickmon vs. Propak Logistics, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-024814

On April 10, 2013, the claimant, a 39-year-old high school graduate, injured his right hip and low back.  Dr. Krempec performed a right hip arthroplasty with arthroscopic labral repair and open femoral osteochondroplasty on October 31, 2013, placed the claimant at MMI without restrictions on March 25, 2014, and assessed 12% PPD of the hip.  The claimant attempted to return to work with the insured, but he was unable to work a full day, and he did not return to work again after May 1, 2014.  He proceeded to treat on his own for back complaints, and Dr. Ciccarelli performed a lumbar fusion and recommended permanent restrictions of no lifting over 35 pounds or repetitive bending or lifting.  The claimant was subsequently terminated by the insured due to his permanent work restrictions.

The claimant had history of working physically demanding jobs after high school.  He stopped working for three years following a motor vehicle accident in June 2007 wherein he sustained injuries to his right shoulder and low back.  He subsequently returned to full time employment performing maintenance on semi-trailers, which required him to frequently lift over 35 pounds, bend, twist, and climb.  He left that position for a higher paying job with the insured.  He worked for the insured for 13 months full time in a position that required him to lift and turn pallets weighing up to 80 pounds throughout the day.  The claimant testified that he was able to successfully perform all of his job duties despite ongoing back and shoulder complaints.

The claimant was evaluated by Dr. Stuckmeyer at his attorney’s request, and he recommended permanent work restrictions and subsequently opined the claimant was PTD as a result of the last injury alone and recommended future medical treatment.  Mr. Cordray opined the claimant had no transferable work skills and had below-average intelligence, was limited to sedentary work only given Dr. Stuckmeyer’s restrictions, and was unemployable.  Ms. Doering evaluated the claimant at the employer’s request and opined the claimant was able to continue working in the open labor market.

At a Hearing, the claimant testified that he had trouble with prolonged standing and walking, lifting, and bending, and he has to lie down to relieve his symptoms.  He also testified that he had difficulty sleeping due to his complaints.  Despite video evidence showing the claimant adjusting straps under a refrigerator in the bed of a truck and playing with four toddlers while seated on the ground and wrestling with them, the ALJ found the claimant credible and the opinion of Mr. Cordray more persuasive than that of Ms. Doering.  The ALJ held that the claimant was PTD as a result of the last injury alone and ordered the employer/insurer to provide PTD, future medical, and TTD.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Entitled to TTD Because Not Terminated for Cause and TPD Because She Only Worked 40 Hours Per Week and Earned Less While on Light Duty

Lana vs. Old Castle, Inc., Injury No. 17-022682

The claimant sustained an injury to her right elbow while working for the employer.  Her job duties included lifting, manipulating, and sometimes breaking cinder blocks weighing up to 36 pounds.  The claimant initially underwent authorized treatment with Dr. Towle and was placed on light duty.  However, after reviewing a video of the claimant’s job duties, Dr. Towle opined that the elbow injury was not work related.  The claimant’s doctor, Dr. Rosenthal, concluded that the claimant’s condition was related to work and recommended surgery and work restrictions.  The claimant was subsequently terminated for violating the employer’s no-call/no-show policy for three consecutive workdays.

While on light duty, the claimant was limited to a 40-hour work week and was earning approximately $412.02 less per week than her pre-injury average weekly wage.  She demanded TPD for the periods that she worked light duty as well as past and ongoing TTD after she was terminated from employment on January 17, 2018.

At a Hearing, the ALJ found Dr. Rosenthal’s opinion more credible than that of Dr. Towle and ordered the employer to provide additional medical treatment.  The ALJ also noted that the employer’s policy actually stated that a claimant could not miss three consecutive workdays without notifying her supervisor at least one hour prior to the start of the shift.  The ALJ found the claimant’s testimony credible regarding the fact that she provided timely notice to her supervisor for two of the three days that she missed from work.  Therefore, the ALJ concluded that the claimant was not terminated for cause and was owed continuing TTD.  The ALJ also awarded TPD for the period the claimant was working light duty and was limited to working no more than 40 hours per week, because she was earning less per week than her pre-injury average weekly wage, because she was previously working overtime.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Court Rejected Employer/Insurer Appeal Because Brief Failed to Include Specific Page References to The Record and Failed to Address the Evidence on The Record That Supported Commission’s Award 

Customer Engineering Services vs. Odom, Case No. SD35638 (Mo. App. 2019)

FACTS:  The 56-year-old claimant was injured on June 21, 2012 while lifting a large photo printer with two other people.  He treated with Dr. Roeder, who diagnosed tendinopathy and a partial right distal biceps tendon tear and performed right elbow surgery.  The doctor subsequently diagnosed CRPS of the right upper extremity and referred the claimant for ganglion blocks.  The claimant also treated with Dr. Lennard, who placed him at MMI on August 26, 2013.  He proceeded to treat on his own and underwent pain management.  The claimant did also have pre-existing disabilities, including a left knee injury which required surgery in 2010.  He obtained an Associate’s Degree in Photo Production Technology and had a history of working as a field support technician for photo labs.

At a Hearing, the ALJ found the claimant was PTD as a result of the work injury alone and noted he had unpredictable chronic pain that required opioid medication that caused cognitive deficits, and he had permanent restrictions from Dr. Lennard and Dr. Roeder.  On appeal, the Commission affirmed the ALJ’s decision and Award.  The employer appealed the Commission’s decision and Award.  It argued there was not sufficient evidence on the record to support an Award of PTD or future medical. 

HOLDING:  The Court of Appeals noted that the employer’s brief did not include page references to the record on appeal, and it failed to address the favorable evidence on the record that supported an Award of PTD benefits and future medical, which stripped the employer’s argument of any analytical or persuasive value.  The Court affirmed the Commission’s decision and Award, although it did modify the amount of past medical owed by the employer/insurer.

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2018 – December 2018

Injury Compensable, Despite Pre-Existing Condition and Back Problems, Because Work Accident Caused Condition to Become Symptomatic

Haag vs. Terry Snelling Construction, Injury No. 17-041850

The claimant sustained a low back injury while working as a concrete finisher in March 2017.  He reported his injury to his supervisor, but no treatment was provided.  He initially sought chiropractic treatment on his own, and when his symptoms persisted, he sought medical treatment from the employer.  The claimant admitted to treating with a chiropractor in the past due to aches and pains that he related to his labor-intensive work.  However, he testified that these symptoms resolved with treatment and did not interfere with his ability to work, and he denied having pain into his right leg prior to his date of injury. 

Dr. Hess evaluated the claimant at his attorney’s request and diagnosed lumbar radiculopathy secondary to a broad-based disc protrusion at L4-5, a central L5-S1 disc herniation, and a L5-S1 annular tear, and concluded the work accident was the prevailing factor in causing his condition.  Dr. Ebelke evaluated the claimant at the employer’s request and diagnosed DDD at L4-S1 with facet joint arthritis and other degenerative changes, none of which he believed were the result of a work injury, and he opined that the claimant’s strain should have resolved within a few months.

At a Hearing for a temporary Award on the issues of TTD and medical treatment, the ALJ found Dr. Ebelke’s opinion unpersuasive and noted that even if the claimant had a pre-existing degenerative condition, it was asymptomatic until the date of injury, and although he had some prior chiropractic treatment, his symptoms resolved with minimal treatment and did not affect his ability to work prior to his date of injury.  Therefore, the ALJ found that the claimant’s current complaints were related back to the work injury and ordered the employer/insurer to pay TTD and provide medical treatment.

Injury Sustained in Doctor’s Office While Treating for Work Injury Not Compensable Because Not Direct Result of Any Medical Treatment Necessary for Primary Injury

Schoen vs. Mid Missouri Mental Health Center and Treasurer of Missouri as Custodian of Second Injury Fund.,Injury No. 09-034298

The claimant initially complained of throat and eye irritation after exposure to Cypermethrin on May 8, 2009, when that substance was sprayed on air conditioning units at work to control for ants.  She sought emergency treatment on her own and returned to work immediately without limitations in regards to that exposure.  She had continuing complaints and was sent by the employer to Dr. Runde for evaluation on May 22, 2009.  While at the doctor’s office, a person with a small dog was sitting in the waiting room.  While attempting to divert the dog, Dr. Runde accidentally tripped the claimant and caused her to fall to her knees.  She alleged injuries to her cervical and lumbar spine, left shoulder, and left knee as a result of her fall.

Dr. Volarich evaluated the claimant at her attorney’s request and opined she had 5% PPD of the body due to pulmonary exposure to Cypermethrin.  Dr. Runde opined the claimant had no permanent disability relating to her exposure.  The treating doctor, Dr. Hyers, diagnosed transient bronchitis and opined the exposure at work was a temporary irritation that would resolve within a matter of days after initial exposure.

At a Hearing, the ALJ found that the injuries the claimant sustained when she fell in Dr. Runde’s office were compensable injuries because she sustained them while seeking authorized treatment for chemical exposure.  The ALJ also found the claimant PTD as a result of her work-related injuries alone, including the injuries sustained at Dr. Runde’s office.  On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission found the opinions of Dr. Runde and Dr. Hyers more persuasive than Dr. Volarich with respect to her pulmonary complaints.  With respect to the injuries allegedly sustained during the claimant’s fall, the Commission disagreed with the ALJ and held that they were not compensable, because even though the claimant was seeking authorized treatment, those injuries were not the direct result of any necessary medical treatment for her primary injury, the Cypermethrin exposure.  Therefore, Commission declined to award any PPD benefits and found that the claimant was not PTD.

No Benefits Awarded Because Claimant was Independent Contractor and Not Statutory Employee

Lane vs. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-029009

The claimant was injured on January 29, 2009 when she was working as a delivery driver and was in a motor vehicle accident.  She sustained injuries to her back and neck, which were treated conservatively.  The claimant signed an employment contract with Via Bancourier (VB) that acknowledged she was an independent contractor and not an employee.  She settled her claim with VB on a compromise basis, and her status as an employee was disputed in the Stipulations. 

The claimant then filed a claim against the Fund alleging that she was a statutory employee of VB and was PTD as a result of her primary injury and pre-existing conditions.  At a Hearing, she testified that she controlled the means and method of her work and the routes that she delivered.  She could choose to work when she wanted and could refuse assignments.  She used her own vehicle to make deliveries and was responsible for all maintenance and insurance.  She received a 1099 at the end of every year without taxes withheld, and VB gave her the option of obtaining her own workers’ compensation coverage, which she declined to do.  The ALJ found that the claimant failed to show that she was an employee of VB and declined to award any benefits.

On Appeal, the Commission found that the claimant was performing work under contract with VB that was in the usual course of VB’s business.  However, it found that she was not injured on or about the premises of VB.  The claimant argued that because the general public did not have the right to use her personal vehicle or access the items she delivered, her vehicle should be considered to be VB’s premises.  The Commission rejected this argument, held that an employer’s premises does not include public highways for the purposes of the statutory employment provision, and affirmed the ALJ’s Decision and Award denying benefits.

Claimant Not Employee Under Workers’ Compensation Law, and Ginger C Not Employer Under Workers’ Compensation Law

Hayes vs. Ginger C, LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-104894

Ginger C (GC) worked as a rental business and did not perform construction or have any employees.  It did hire three contractors, including the claimant, to repair and remodel buildings as needed.  On June 26, 2013, the claimant and two other contractors were performing a concrete job and sustained alkali burns from the concrete.  GC did not have workers’ compensation insurance.  The claimant sought PPD benefits from GC and the Fund. 

At a Hearing, the ALJ expressly found the claimant was not a credible as a witness, because his testimony was exaggerated and inconsistent with his deposition testimony and the testimony of the other two contractors and Mr. Asmar, GC’s owner.  The ALJ found that credible testimony established that GC did not issue W-2’s and instead issued 1099’s to each contractor, Mr. Asmar was never present at the job sites and did not control or direct the way that the claimant or other contractors performed their work, the claimant owned and used his own tools, he could choose the hours he worked, and he could turn down maintenance calls if he wanted.  Therefore, the ALJ found that the claimant was an independent contractor and not an “employee” under workers’ compensation.  The ALJ also found that GC was not an “employer” under workers’ compensation because GC’s regular business was apartment rental, not construction, and it did not have any employees.  Therefore, the ALJ denied any benefits.  On appeal, the Commission affirmed the ALJ’s Decision and Award.

Employer Responsible for Future Medical, Despite Pre-Existing Chronic Pain and Psychiatric Issues, Because Need for Treatment Flowed from the Work Injury

Null vs. Albany Meical Center, a/k/a Northwest Medical Center Association and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 12-100528

The claimant slipped on ice on December 24, 2012 and sustained compensable injuries to her left lower extremity and right knee.  Dr. Trease diagnosed a bimalleolar ankle fracture and performed an ORIF in December 2012.  The claimant continued to have significant pain complaints in her left lower extremity, and Dr. Horton subsequently removed the hardware in her ankle, and she had a spinal cord stimulator placed, which did not resolve her complaints.  The claimant also alleged psychological injury as a result of her work accident due to chronic pain.  She was referred to a psychologist and treated through workers’ compensation through July 2016, after which she was also hospitalized in March 2017.  Notably, she did take antidepressants prior to her work injury and had prior trauma in her past, including an abduction and assault.  She was previously diagnosed with stress, anxiety, and depression as well as fibromyalgia and did have prior issues with chronic pain.  However, she testified that her prior psychiatric issues and pain complaints never prevented her from working before the work injury.

Dr. Koprivica evaluated the claimant at her attorney’s request, placed her at MMI, and recommended ongoing mental health treatment as a result of her primary injury.  Dr. Pronko and Dr. Rosenthal testified on behalf of the employer that the claimant had long-standing pre-existing psychiatric issues and chronic pain and that she did not have any additional permanent chronic pain as a result of this injury.  Dr. Rosenthal opined the claimant did not require any additional pain management as a result of this injury.  Dr. Pronko opined the claimant would require additional psychiatric treatment for her “lifelong difficulties.”

At a Hearing, the ALJ found the claimant’s testimony credible and held that she did sustain a psychological injury as a result of chronic pain due to the work injury.  The ALJ ordered the employer to provide future medical treatment for pain management and psychological care.  However, the ALJ found the Fund liable for PTD benefits.  On appeal, the employer argued that the ALJ erred by awarding future medical without requiring the claimant to show that the work injury was the “prevailing factor” causing the need for future treatment for her depression, psychological injury, and chronic pain management.  The Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it noted that it is immaterial that the treatment may be required because the primary injury complicated the claimant’s pre-existing conditions, or that the treatment will benefit both the compensable injury and the claimant’s pre-existing conditions.  The claimant need only show a reasonable probability that future treatment is necessary because of her work injury and that the need for future medical treatment flows from the injury.

Employer Responsible for PTD After Claimant Fractured Wrist at Work

Thompson vs. Fulton State Hospital and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-087133

On November 7, 2013, the claimant, a 62-year-old employee with a Masters in Psychology, was participating in self-defense training at work when the trainer hit the defensive bat she was holding, causing her to fall backwards striking her head on the concrete wall.  She was diagnosed with a distal radial fracture and underwent an ORIF, followed by a second surgery for hardware removal.  Dr. Wall subsequently diagnosed chronic regional pain syndrome and ulnar neuropathy in the left upper extremity.  With respect to her head, Dr. Peeples diagnosed a concussion without loss of consciousness and placed her at MMI, although the claimant reported ongoing headaches.  A neuropsychological/neurocognitive evaluation showed multiple invalidity indicators and evidence of malingering.

The claimant’s attorney had the claimant evaluated by Dr. Volarich, who opined she was PTD as a result of her current wrist injury in combination with prior disabilities, including a prior total knee replacement, and he recommended lifting restrictions of no more than two pounds with her left arm.  Ms. Skahan performed a vocational evaluation at the claimant’s attorney’s request and opined that based on Dr. Volarich’s restrictions, the claimant was unemployable as a result of her left upper extremity injury alone.   With respect to the claimant’s psychiatric disability, the experts disagreed as to whether she was malingering.  Dr. Daniel opined the claimant was PTD as a result of her current psychiatric disability in combination with her pre-existing disabilities, but the psychiatrist who evaluated the claimant at the employer’s request placed her at MMI and assessed 0% PPD.

At a Hearing, the claimant testified that she had continued problems with her left wrist as well as headaches, depression, and problems with concentration.  The ALJ noted the experts’ differing opinions regarding the claimant’s alleged psychiatric injury and also as to whether she had CRPS in her left upper extremity.  Ultimately, the ALJ did find the claimant PTD as a result of her left upper extremity injury alone, with or without a diagnosis of CRPS.  The ALJ found Ms. Skahan’s opinion that the claimant would be limited to below sedentary work as a result of her left upper extremity injury regardless of whether she was working in an office setting to be persuasive, and the ALJ noted the two-pound lifting restriction from Dr. Volarich and the fact that the claimant was left hand dominant.  Therefore, the employer was responsible for PTD benefits and future medical care.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Not PTD After Lumbar Fusion Because He Was Walking Five Miles a Day, Had Good Range of Motion, and Not Taking Narcotics

Manshava Johnson vs. Value St. Louis Properties, Inc., Injury No. 07-059414

The claimant, a 59-year-old maintenance technician, sustained an injury to his low back on June 11, 2017 while lifting a refrigerator at work.  The claimant also had prior low back pain in 2007.  Dr. Kennedy opined that he could not state with certainty whether the claimant’s herniated disc at L5-S1 was related back to the work accident, and Dr. Chabot opined the date of injury was not the prevailing factor in causing the claimant’s condition.  The claimant proceeded to treat on his own with Dr. Kennedy, who performed a discectomy on April 2, 2008 and subsequently diagnosed post-laminectomy syndrome and recommended a lumbar fusion.  The claimant remained off work and was awarded SSD.  In a Temporary Award, the employer was ordered to provide medical treatment, and it sent the claimant to Dr. Coyle, who did perform a lumbar fusion in January 2014.  The claimant began walking five miles per day, and Dr. Coyle noted he had stopped taking narcotics, placed him at MMI with a permanent 25-pound lifting restriction, and assessed 25% PPD of the body.

Dr. Volarich evaluated the claimant at his attorney’s request and also noted that the claimant was not taking any prescription medication, although he opined the claimant had 50% PPD of the body and was PTD as a result of the work injury alone.  Vocational expert Stephen Dolan opined the claimant was not employable considering Dr. Coyle’s restrictions and the claimant’s own description of his limitations.  The employer’s vocational expert James England opined the claimant had experience in supervisory positions and sales and was a good candidate for vocational rehabilitation.  He testified that the claimant did not mention any sleep problems to him.

At a Hearing, the claimant testified that he was only sleeping 2-3 hours at night due to pain and had to nap throughout the day due to taking multiple Oxycodone, which made him light-headed and confused.  He testified that he could not sit or stand for long periods and was depressed due to his condition.  The ALJ noted the claimant was waking five miles per day while treating with Dr. Coyle, and both Dr. Coyle and Dr. Volarich noted he was not taking narcotics when evaluated by them.  The ALJ opined that Dr. Coyle’s opinion was more persuasive than Dr. Volarich’s opinion and found that the claimant sustained 50% PPD of the body, was not PTD, and would not require any additional medical treatment.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant PTD, Even Though Doctor Did Not Specifically State He Was Unable to Work

Moss vs. Treasurer of the State of Missouri-Custodian of the Second Injury Fund.,Case No. WD81467 (Mo. App. 2018)

FACTS:  The claimant, a 61-year-old high school graduate, sustained a right shoulder injury at work in 2012.  He underwent a right shoulder arthroscopy followed by a right shoulder replacement and resolved that claim with the employer for 30% PPD of the right shoulder.  The claimant had pre-existing conditions including a prior right wrist surgery that affected his grip strength, a prior right elbow injury that affected his ability to lift heavy objects, and a prior lumbar surgery that caused him to need to frequently change positions.

Dr. Hopkins examined the claimant at his attorney’s request and opined that he was very limited in his work capabilities and would be limited to a sedentary occupation that requires mostly sitting and the ability to change positions as needed.  Dr. Hopkins also provided permanent restrictions of no repetitive use of the right upper extremity, the claimant’s dominant arm, but did not specifically state that he was PTD.  However, Ms. Skahan evaluated the claimant and opined he was unemployable because his inability to use his right arm repetitively and the need to change positions frequently excluded him from sedentary work.  A vocational expert retained by the employer agreed the claimant was unemployable due to a combination of his pre-existing conditions and primary work injury, his age, education, and lack of transferrable skills.

At a Hearing, the ALJ found that the Fund was responsible for PTD benefits.  On appeal, the Commission affirmed the ALJ’s decision and award and held that Dr. Hopkins did not need to specifically address the question of PTD in his report for the Commission to find that the claimant was, in fact, PTD.

HOLDING:  The Fund appealed, and the Court affirmed the Commission’s decision and Award.   The Court held that statute requires that a physician certify the claimant’s medical condition and resulting work-related restrictions post injury, which Dr. Hopkins did.  With respect to the question of PTD, the Court noted that the Commission may rely on evidence provided by both a physician and other non-medical experts when assessing whether the claimant is employable.  Here, the Commission properly relied on expert testimony provided by Dr. Hopkins as well as the testimony of two vocational experts, and the Commission did not error in finding that the claimant is PTD.

Claimant Not PTD After Lumbar Fusion, Failed Back Syndrome, and Bilateral Carpal Tunnel Releases Because She Had Almost No Permanent Work Restrictions and Was Not Limited in Activities of Daily Living

Ford vs. Pauwels Transformers and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 06-061036

On June 6, 2006, the claimant developed bilateral carpal tunnel syndrome while working for the employer.  Dr. Brown diagnosed bilateral carpal tunnel syndrome and performed staged bilateral carpal tunnel releases in 2006.  She subsequently developed trigger fingers in both hands and underwent injections in 2007.  The claimant settled this claim with the employer for 17% of each wrist and a 10% loading factor plus two weeks of disfigurement.

The claimant also had a prior low back injury that she sustained on May 5, 2005.  Dr. Mirkin diagnosed DDD and small disc protrusions and ultimately performed a lumbar fusion on October 20, 2005.  The claimant underwent work hardening and an FCE, and Dr. Mirkin placed her at MMI on May 1, 2006 without restrictions except that she was not to push heavy transformers by herself.  The claimant complained of ongoing low back pain and sought treatment on her own.  Dr. Taylor diagnosed failed back syndrome and recommended pain management.  Dr. Lee diagnosed a non-union at L4-5 and also recommended conservative treatment.  The employer sent the claimant to Dr. Coyle in 2009 for an updated evaluation, at which time the doctor recommended a revision surgery.  However, the claimant subsequently declined to undergo surgery, and Dr. Coyle provided no additional medical treatment.  The low back claim was ultimately resolved with the employer for 35% PPD of the body.

The claimant filed a claim against the Fund for PTD benefits.  Dr. Woiteshek evaluated the claimant at her attorney’s request and opined she was PTD as a result of a combination of her back injury and subsequent carpal tunnel injury.  The claimant’s vocational expert also believed she was unemployable due to a combination of those conditions.  Mr. Weimholt evaluated the claimant at the employer/insurer’s request and opined that she was employable.

At a Hearing, the ALJ noted that the claimant testified her wrist complaints bother her less now and do not wake her up at night, she was uncertain of any changes in her grip strength, and she could not think of any activities she had stopped doing because of problems or issues with her hands.  The claimant actually testified that she was PTD as a result of her back injury alone, which the ALJ noted was inconsistent with both vocational experts’ opinions.  The ALJ also noted that the claimant had taken several trips which involved flying and driving for long periods of time, had no permanent work restrictions except not to push large transformers by herself, and was able to perform activities of daily living without issue or limitation.  Although the claimant testified that she had to lie down or recline during the day due to her back condition, the ALJ noted that none of the medical experts had recommended that she do so.  Therefore, the ALJ found that the claimant was not PTD.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

No PTD Liability for Fund Because Claimant PTD Prior to Primary Injury

Wurth vs. Commercial Electronics, Inc and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-100667

The claimant, a 49-year-old manager with a high school degree, sustained a low back injury at work on November 4, 2008.  Dr. Lange diagnosed a herniated disc and performed a right-sided laminectomy and discectomy at L5-S1 in 2009.  The claimant settled this claim with the employer for 25% PPD of the low back.  He was subsequently dismissed from work in 2012, and he testified that he frequently missed work in the months leading up to his termination, had to alternate between sitting and standing throughout the day, could not climb, could not sit for longer than an hour, and could not drive long distances.  He subsequently received Social Security Disability benefits and then filed a claim against the Fund for PTD benefits.

The claimant did have significant prior injuries to his low back and neck.  He initially injured his low back in 1999, underwent a left L4-5 microdiscectomy, and was given permanent lifting restrictions.  The claimant reinjured his low back in January 2001, and he underwent a microdiscectomy at L4-5 and L5-S1 and a discectomy and fusion at C6-7.  When he was released, he could not drive or sleep as well as before, and he was discharged from his job as a machinist at his prior employer.  The claimant then began working for his father’s company in 2002 or 2003.  In 2006, Dr. Coyle diagnosed multi-level DDD in the lumbar spine and performed a revision decompression and fusion at L4-5.

The claimant testified at a hearing that after his 2006 surgery, he had difficulty walking, standing, and lifting.  He continued to work 10-hour days, but he would sit in a recliner in his office at times.  As a salaried employee and a supervisor, he was allowed to come and go as needed for his low back, neck, and foot pain.  Dr. Volarich previously evaluated the claimant in January 2008, before his primary injury, and opined he was unemployable in the open labor market at that time.  After the primary injury, Dr. Volarich and Mr. England evaluated the claimant at his attorney’s request and opined he was PTD as a result of the combination of his primary injury and prior injuries.  Mr. Weimholt evaluated the claimant at the employer/insurer’s request and opined that he had been unemployable since December 26, 2001.

At a Hearing, the ALJ found that the claimant was already PTD and unemployable in the open labor market prior to his primary injury in 2008.  The ALJ found the claimant’s reports to Dr. Volarich in January 2008 to be more credible than his contrary testimony at the hearing several years later and also held that the claimant’s position at his father’s company prior to the primary work injury was already highly accommodated.  Therefore, the Fund was not liable for PTD benefits, because the claimant was already PTD prior to the primary work injury.  On appeal, the Commission affirmed the ALJ’s decision and Award.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2018 – September 2018

Claimant Failed to Prove Exposure To Cracked Truck Battery at Work Was Prevailing Factor in Causing Any of His Alleged Symptoms and Health Conditions

Davenport vs. LTI Trucking Services, Inc., Injury No. 15-075326

The claimant, a 51-year-old truck driver, alleged that he suffered multiple injuries as a result of inhaling sulfuric acid from a leak in a cracked truck battery.  He drove the truck for five months, during which time multiple mechanics inspected it but found no problems.  On October 5, 2015, the vehicle was inspected again, and one of its batteries was cracked.  The claim was denied, and the claimant proceeded to treat on his own.  His doctors diagnosed COPD but also noted that he smoked a half pack of cigarettes per day.  Dr. Sifers opined there was no evidence to show that a car battery leak could cause significant sulfuric acid toxicity to drivers, and he also opined that the claimant’s gastritis complaints were better explained by H. Pylori, which was non-work-related, than toxic exposure.

At a Hearing, the claimant testified that although he continued to smoke a half a pack of cigarettes per day, he did not believe his smoking was “heavy enough” to cause COPD, which he related back to sulfuric acid exposure.  The claimant submitted select pages of a handful of medical reports, but the only one that clearly addressed causation was Dr. Sifers’ report.  The ALJ ultimately found the claimant’s injury was not compensable, because he failed to prove that exposure to a cracked truck battery at work was the prevailing factor in causing any of his symptoms or health conditions.  The claimant appealed to the Commission, which affirmed the ALJ’s decision and Award.

Employee’s Death from Pulmonary Embolus Causally Related Back to Work-Related Ankle Fracture Due to Confinement to Wheelchair

Joan Knutter, Karl Knutter and Michael Knutter vs. American National Insurance, Injury No. 13-020414

On March 25, 2013, the employee sustained a non-displaced right ankle malleolus fracture, which was treated conservatively, including use of a wheelchair.  Less than two months later, she died as the result of a pulmonary embolism.  Due to the employee’s cremation, there was not an autopsy.  The claimant filed a Claim for Compensation for death benefits on behalf of the employee.

Doctors disagreed as to whether the claimant’s ankle injury was the prevailing factor in causing the PE and death.  Dr. Wright opined that the claimant had underlying risk factors, but the claimant’s immobility following her ankle injury was the tipping point that caused the PE.  Dr. R. Mullins opined there was a lack of evidence directly tying the ankle fracture to a DVT or blood clot, and he noted that the claimant had other contributing factors such as obesity, a sedentary lifestyle, obstructive sleep apnea, and chronic kidney disease, all of which raised her risk of DVT.  Dr. Cross reviewed the medical records and opined that without an autopsy, it was impossible to conclude that the claimant had a DVT in the lower extremity that may have caused a PE to the lungs. 

After a Hearing, the ALJ denied death benefits.  The ALJ opined there was no evidence in the medical records directly tying a blood clot or DVT to the claimant’s injury or the use of a wheelchair, and the ALJ concluded it would be pure speculation to causally relate the PE back to the work injury because there was no autopsy.  On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission found the expert opinion of Dr. Wright credible and persuasive and concluded that it was not coincidental that the claimant developed a PE just 45 days after being confined to a wheelchair due to her injury.

Co-Employee Liable for Negligence Because He Purposefully Removed Safety Guard and Instructed Claimant to Clean Machine While in Operation

Brock vs. Peter Dunne, in his capacity as DAL for Mark Edwards, Deceased,Case No. ED105739 (Mo. App. 2018)

FACTS:  On his date of injury, the claimant worked for JMC Manufacturing, and Edwards was his supervisor.  The claimant worked on a lamination machine that had two sets of rollers and a safety guard, that was attached by hinges that could be lifted to provide access to the bottom of the rollers if they needed to be cleaned.  The safety guard prevented objects from becoming stuck between the rollers while the machine was in operation.  On April 30, 2013, Edwards spotted glue on one of the bottom rollers and removed the safety guard while the machine was still operating.  The claimant testified that Edwards told him to use a wet rag to squeeze water onto the roller while simultaneously using a brush underneath the roller to scrape the glue off of it.  He testified that Edwards did not give him any specific instructions to accomplish the task and was standing immediately next to him while he completed this task with the machine running.  While squeezing water onto the roller, the rag became caught in the pinch point between the bottom rollers and pulled the rag into the rollers along with the claimant’s thumb.  This injury occurred after the 2012 amendment to workers’ compensation statute regarding co-employee liability.  The claimant filed a suit for negligence in Circuit Court against Edwards, and a jury returned a verdict finding that Edwards was partially at fault for the injury and awarding damages.

On appeal, the Court noted the 2012 amendment to workers’ compensation statute, which states that any employee shall not be liable for any injury for which compensation is recoverable under workers’ compensation law, unless the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.  The Court also noted prior decisions that held that employers have a nondelegable duty to provide a safe workplace, which is limited to injuries that are reasonably foreseeable, and a co-employee is only personally liable if the co-employee breached a duty that was separate and distinct from the employer’s duty.  Therefore, the claimant had to show that Edwards owed a duty of care that was separate and distinct from the employer’s nondelegable duty and that Edwards engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

HOLDING:  The Court held that Edwards breached a duty of care that was separate and distinct from the employer’s nondelegable duties because his actions were not reasonably foreseeable by the employer, because he violated many safety rules, instructions, and warnings against removing the safety guard.  Edwards also created a hazardous condition by removing the guard and instructing the claimant to clean the machine while it was still running, and that affirmative negligent act created an additional danger that would not otherwise have been present in the workplace.  Edwards did not have to intend to injure the claimant for his actions to be purposeful and affirmative under the statute.  It was enough that he intentionally removed the guard and directed the claimant to clean the machine while it was in operation.  Therefore, the Court affirmed the Circuit Court’s judgement.

Injury Sustained While Playing Volleyball on Unpaid Lunch Break Not Compensable

Wilkerson vs. CMMG, Inc., Injury No. 13-104108

The claimant worked for the employer and had an unpaid lunch break during which he was allowed to leave the premises.  There was a volleyball court on the employer’s premises, and employees often played volleyball and may have been encouraged by the employer to play volleyball during the lunch hour.  On May 23, 2013, the claimant was playing volleyball during his unpaid lunch break and sustained an injury to his right hand when he attempted to block a spike.

At a Hearing, the ALJ found the claimant’s injury was not compensable because he sustained the injury while participating in a recreational activity that was also the prevailing cause of his injury. The ALJ noted that the claimant’s lunch break was unpaid, no employees were ever directly ordered to participate in the volleyball games, and there was no showing that the injury occurred due to an unsafe condition on the employer’s premises.  Therefore, the claimant forfeited any benefits under workers’ compensation for injuries sustained as a result of his participation in the volleyball game.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Not Injured in Course and Scope Because She Was Equally Exposed to Hazzard or Risk of Walking on an Even Paved Surface Outside of Work and Had History of Falls Due to Weakness in Left Lower Extremity

Wall vs. Bass Pro Outdoor World LLC, Injury No. 15-046929

On July 1, 2015, the claimant, a 66-year-old employee of Bass Pro, was walking down the main aisle of the fishing department on an even, paved surface while pushing a shopping cart when she stepped to the right of the cart, shifted her weight onto her left foot, fell, and injured her right shoulder.  The claimant had a history of polio to her left foot and leg in 1955 and a left ankle fusion in 1993.  She also fell twice on a camping trip, one month prior to her alleged work injury, after which she had pain in her shoulder.  Following her alleged work injury, the claimant gave three separate statements, wherein she advised there was nothing about the floor that caused her to fall, and she “just fell.”  There was also a co-worker who was walking directly behind her at the time of her injury who testified there was nothing the claimant could have tripped over.

At a hearing, the ALJ found that the claimant had not sustained an injury in the course and scope of her employment, because the hazard or risk of her injury was walking on a dry, flat concrete floor, which was an activity that she performed regularly in her non-employment life, and there was nothing particular about the location of the fall that was unique to her work that created a unique exposure to that risk.  The ALJ noted that the claimant testified she regularly walked on identical flooring while shopping outside of work.  The ALJ also noted that the claimant had a history of frequent falls due to weakness in her left lower extremity due to her childhood polio and prior left ankle fusion.  Therefore, the injury was not compensable, and no benefits were awarded. On appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Injured in Course and Scope When Two-Wheel Cart Carrying Personal Items to Work Became Stuck and Caused Claimant to Fall Because Not Equally Exposed to Risk of Cart Becoming Stuck in Busy Entryway Outside of Employment

McDowell vs. St. Luke’s Hospital of Kanas City, Injury No. 16-051794

On July 13, 2016, the claimant was pulling a two-wheeled cart behind her, which contained her purse, lunch, medicine, and paperwork related to work.  The claimant began using this cart in 2013 following a personal hip replacement, when the cart was suggested by her supervisor to help her carry items to and from work while using a cane.  She denied using the cart for anything besides travelling to and from work.  On her date of injury, the claimant was exiting the parking garage that was owned and controlled by the employer.  Due to some congestion, she moved to the right of the path to allow other people to pass, at which time the wheel of her cart became stuck in the doorframe and caused her to fall to the ground.  She sustained a left wrist distal radius fracture, and Dr. Langford performed an ORIF on July 18, 2016.  Medical experts for both parties agreed that the claimant’s fall was the prevailing factor in causing her fracture.  However, the employer argued that the claimant was not injured in the course and scope of her employment because the risk source of her injury was the cart that she used to transport personal items to and from work. 

At a Hearing, the ALJ found that the risk of injury caused by the cart was work-related because the claimant only used it to haul materials to and from work, and the personal items she transported, such as her lunch and medications, were necessary for her to successfully complete her work.  The ALJ also noted that another risk of injury was congestion in the walkway at the exit to the parking garage, which the claimant commonly encountered due to shift changes around the time that she began work, which would also be a work-related risk.  Therefore, the employer was ordered to pay PPD, past medical expenses, future medical referable to hardware removal, and TTD.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Claim Not Compensable Because Claimant Failed to Establish That He Was Working For An “Employer” Subject to Missouri Workers’ Compensation Law

Mealer vs. Russ Jackson Transportation and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-085074

The claimant worked as a driver for the employer and sustained an injury on October 25, 2013, when three front teeth were broken at the gumline.  The claimant was prescribed partial dentures, and he was subsequently referred for an implant consultation.  During the course of his treatment, the claimant requested that treatment be provided by the employer, but the employer refused because it did not carry workers’ compensation insurance because it had less than five employees.  The claimant filed a Claim, which was not answered, and at a Hearing before an ALJ, the claimant appeared, but no one appeared on behalf of the employer.  

At the Hearing, the ALJ did not award any benefits.  The ALJ found that the claimant did sustain an injury by accident, but he failed to present any evidence regarding how many employees worked for the company on his date of injury.  The ALJ also found that the claimant failed to identify the medical bills as being related to treatment for his teeth that was related back to the date of injury or that he was at MMI, and therefore, an Award could not be made for PPD, past medical, or future medical.

The claimant appealed, and the Commission affirmed the ALJ’s decision and Award.  The Commission concluded the claimant was not working for an “employer” subject to Missouri Workers’ Compensation Law.  The claimant failed to present any evidence at the Hearing that would support a factual finding that the employer had five or more employees on the date of injury, that the employer made an election to become subject to the provisions of Missouri Workers’ Compensation Law, or that the employer was engaged in the construction industry as of the claimant’s date of injury.  Therefore, the Commission found that an employment relationship subject to Missouri Workers’ Compensation Law was not established, and although the employer failed to file an Answer to the Claim, lack of subject matter jurisdiction cannot be waived by default.

Claimant was Independent Contractor on Date of Injury Because Used His Tools and Work Was of Limited Duration and Outside Scope of Employer’s Regular Course of Business

Densmore vs. Barnes Industrial Group, Inc., Injury No. 11-076364

The claimant was discussing an employment relationship with the employer, wherein he was to help start a new division of the employer’s company involving a new service area.  The employer would supply all of the necessary tools for the projects and secure the work he was to do, and the claimant was to be an employee as opposed to an independent contractor.  The claimant signed an employment contract on July 6, 2011.  However, he made additional demands on that date, and the employer advised it would consider his demands and get back with him.  The employer did not sign the contract, and it subsequently decided not to hire the claimant or open the new division.  However, prior to coming to this decision, on July 16, 2011, the claimant was working a job for the employer where the claimant used his own tools because the employer had not yet purchased the necessary equipment to do this type of work.  While installing a bin, the claimant’s left middle finger was smashed between two pieces of steel and was partially amputated.  The claimant filed a Claim for Compensation against the employer, and the employer argued that it was not the claimant’s employer under workers’ compensation.

At a hearing, the claimant argued that he was already an employee on his date of injury because he had discussed the employment relationship with the employer and had signed the contract.  The employer argued he was not an employee because it had not agreed to the additional demands he made, and in any event, the claimant was working as an independent contractor on his date of injury because he provided the service truck and the tools to perform the work on that job.  Both parties admitted this type of project was not performed as part of the employer’s regular course of business.  The claimant did receive payment for four hours of work, but no taxes were withheld.

The ALJ found that the claimant was operating as an independent contractor on his date of injury because the job was of limited duration, the employer did not control the claimant’s work because it had no experience performing that type of work, the employer did not furnish any of the equipment needed for the job because it did not yet own any, and the employer paid the claimant a premium for use of his equipment.  Therefore, the employer was not liable for benefits.  On appeal, the Commission affirmed the ALJ’s decision and Award, and it noted that even if the claimant and employer had entered into an employment agreement, the work the claimant was performing on his date of injury was not a part of that agreement.

Appellate Court Lacked Authority to Review Temporary Award from Commission Awarding TTD Benefits

AB Electrical, Inc. vs. Franklin, Case No. WD81156 (Mo. App. 2018)

FACTS:  The claimant was injured on December 7, 2015 when he fell off of scaffolding.  After a Hearing on the issue of TTD, the ALJ declined to award any benefits and found that the claimant had forfeited his right to the same because his use of marijuana was the proximate cause of his injury.  The Commission subsequently reversed the ALJ’s decision and Award and issued a temporary Award of TTD benefits and past medical expenses.  However, the Award was deemed “temporary or partial”, and the Commission left the matter open until a final Award was issued.  The employer appealed the Commission’s decision to the Court of Appeals.

HOLDING:  The Court noted that it must have express statutory authorization to review workers’ compensation cases, and under Workers’ Compensation Law, it is only allowed to review final Awards.  The Court noted a previously recognized exception to that general rule, wherein Courts have previously found that they had authority to review temporary Awards where the employer/insurer denied any liability for the injuries.  This exception was based on the fact that Appellate Courts have authority to review temporary or partial Awards of PTD benefits and a Missouri regulation finding that the Commission has authority to review Awards where benefits were granted but the employer/insurer disputed that they had liability for the injury.  The Court noted that this exception was created under liberal construction of the Workers’ Compensation Law, and after the 2005 amendments, all workers’ compensation statutes must be strictly construed.  The Court held that strict construction eliminated the prior exception.  Therefore, Appellate Courts do not have authority to review temporary or partial Awards that are not for PTD,even if the employer/insurer denied any liability for the injury.  Notably, the Court did not address the merits of the case, and this matter could still be appealed after the Commission renders a final Award in this matter.

No Award of Prejudgment Interest Permitted Under Strict Construction of Missouri Statute Governing Medical Fee Disputes

Goss vs. St. Luke’s Hospital, Injury No. 14-01645

The claimant underwent a brain MRI at St. Luke’s Hospital on March 20, 2015 in the context of a workers’ compensation injury.  The provider filed an Application for Payment of Additional Reimbursement with the Division on May 25, 2017.  On June 30, 2017, the Division mailed a Notice of Evidentiary Hearing on the Application to the provider and employer/insurer.  The employer/insurer did not file an Answer to the Application or attend the hearing.  The ALJ issued a default judgment against the employer/insurer finding them responsible for unpaid medical fees as well as prejudgment interest on those fees in the amount of $480.60, and the ALJ also awarded attorney’s costs and fees, finding that the employer/insurer defended this matter without reasonable grounds by failing to respond to or Answer the Application or appear for the hearing.  

The employer/insurer appealed the ALJ’s decision and Award arguing that the insurer was not provided notice of the hearing pursuant to statue, and award of prejudgment interest was against strict construction of Missouri statute.  The Commission modified the ALJ’s decision and Award with respect to prejudgment interest and found that under strict construction, statute did not provide for the award of prejudgment interest in favor of the medical provider in the context of an Application for Payment of Additional Reimbursement of Medical Fees.  It specifically found that a prior Court decision that authorized prejudgment interest in favor of employees with respect to unpaid medical fees, did not apply to medical fee disputes and the question of prejudgment interest on unpaid medical fees to be made to a medical provider.

Employer Not Prejudiced By Lack of Timely Written Notice Because It Had Actual Notice of Accident and Associated Injury, and Claimant Did Not Have to Identify All Specific Body Parts Injured When Providing Actual Notice

Harley Davidson Motor Company, Inc. vs. Jones and Treasurer of the State of Missouri Custodian of Second Injury Fund, Case No. WD81155 (Mo. App. 2018)

FACTS:  The claimant sustained an injury while working for the employer on July 13, 2011 while using a torque gun that jerked his body.  On his date of injury, he reported an injury to his right elbow and was directed for medical care by the employer.  He subsequently developed back pain that worsened over time.  He mentioned his back symptoms to the treating doctor in September 2011 and was referred to Dr. Drisko, who related his back complaints back to the work accident.  The claimant then contacted the employer to notify them of Dr. Drisko’s causation opinion.  The employer accepted the right elbow injury but denied the back injury, and the claimant proceeded to treat on his own.

The claimant filed a claim for the back injury, and after a Hearing, the ALJ found both the right elbow and low back injury compensable.  The employer/insurer appealed, and the Commission affirmed the ALJ’s decision and Award with a supplement opinion.  The employer/insurer appealed the Commission’s decision and argued that the Commission erred because the claimant failed to provide timely written notice of the specific injury to his lower back.

HOLDING:  The Court affirmed the Commission’s decision and Award.  It reasoned that the claimant initially had the burden to prove the employer/insurer were not prejudiced by lack of timely written notice of the back injury.  When he showed that the employer had actual notice of the accident and the elbow injury on the date of injury, the burden shifted to the employer/insurer to show that it was prejudiced.  However, the employer/insurer did not present any evidence showing that it was unable to timely investigate the accident or that lack of written notice cause an exacerbation of the injury.  The Court held that the employer/insurer was not prejudiced because it had actual notice of the elbow injury, and the claimant did not need to identify all of the specific body parts that were injured in the accident.

Employer Responsible for PTD after Psychological Injury.  Employer Not Prejudiced by Lack of Written Notice, Because Employer had Actual Notice of Accident and Injury

Fronek vs. Production Delivery Services, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-106035

The claimant, a 63-year-old truck driver, was injured on April 10, 2011 when he was struck by a vehicle in a parking lot.  The accident was captured on security camera footage, and there was also a witness present, who notified the claimant’s supervisor.  The claimant was seen once at the hospital but did not request any additional treatment.  An HR officer spoke with the claimant a few days after the accident and filed a report.  The claimant developed headaches as well as behavioral changes including a fear of cars and driving, irritability, and forgetfulness.  He continued to work without additional medical care from April to October 2011.  In October, he was referred to a neurologist, who diagnosed post-concussion syndrome and PTSD and recommended psychiatric care.  The claimant then reported a work injury and submitted bills for his medical treatment.  The employer/insurer admitted it had actual notice of the claimant’s accident and injury, but it argued that it did not have written notice of awork injury because the claimant never said he was “on duty” at the time of the accident, and it also argued it did not have written notice of a head injury within 30 days of the date of injury.  The claimant continued to work, but he had anger and disciplinary problems, and he was ultimately terminated.  He has not worked since then.

The employer/insurer did provide medical treatment after the claimant’s termination.  The authorized providers diagnosed post-concussion syndrome and headaches, PTSD, major depression, and balance, memory, and sleep problems.  One of those providers, Dr. Ferguson, opined the claimant could not return to working as a driver due to his PTSD, and he would need ongoing counseling.  Mr. Weimholt evaluated the claimant at his attorney’s request and opined he was unemployable due to his sleep and memory problems and behavioral issues that were related back to his work injury as well as his limited education.

Following a Hearing, the ALJ found there was no prejudice for lack of written notice because the employer had actual notice of the accident and injury, and the claimant notified them of his psychological injury within days of his diagnosis in October.  The ALJ also held that the claimant was PTD as a result of his psychological injuries alone and found the employer/insurer responsible for the same.

On appeal, the Commission affirmed the ALJ’s decision and Award.  The Commission held that the employer had actual notice of the claimant’s accident and injury and was not prejudiced by lack of written notice.  The Commission reasoned that statute requires the employer be notified regarding the time, place, and nature of an injury, but a claimant is not required to provide his employer with a medical diagnosis or keep the employer apprised of symptoms and/or opinions regarding the etiology of said symptoms.

Employer Responsible for PTD After Claimant Developed CRPS Following Surgery for Right Biceps Tendon Tear

Odom vs. Customer Engineering Services, LLC, Injury No. 12-046620

The claimant, a 56-year-old with an Associate’s Degree in Photo Production Technology and a history of working as a field support technician for photo labs, sustained an injury on June 21, 2012 while working for the employer.  He was working with two other people to move a large ink jet photo printer when his right elbow popped.  He treated with Dr. Roeder, who diagnosed tendinopathy and a partial right distal biceps tendon tear and performed right elbow surgery.  The doctor subsequently diagnosed CRPS of the right upper extremity and referred the claimant for ganglion blocks.  The claimant also treated with Dr. Lennard, who placed him at MMI on August 26, 2013.  He proceeded to treat on his own and underwent pain management.  The claimant did also have pre-existing disabilities, including a left knee injury for which he underwent surgery in 2010.  

Dr. Paul evaluated the claimant at his attorney’s request and found him PTD as a result of the work injury alone due to CRPS and recommended permanent restrictions of lifting no more than five pounds with the right hand on occasion.  Dr. Lennard recommended permanent restrictions of no repetitive use or lifting over five pounds with the right arm due to the work injury alone, and the doctor noted that the claimant was taking Fentanyl for CRPS, which would cause drowsiness and lethargy.  Mr. Eldred, a vocational rehabilitation consultant, found the claimant unemployable as a result of the work injury alone due to his constant pain and narcotic pain medications.  Ms. Brokover evaluated the claimant on behalf of the employer/insurer and opined that based on the work restrictions of Dr. Paul, the claimant was unemployable in the open labor market.  The claimant testified that he had continued chronic pain and instability in his knee and unpredictable pain that give him good days and bad days, and when taking his narcotic pain medication, he was unable to drive and had difficulty maintaining a train of thought.

After a Hearing, the ALJ found the employer/insurer responsible for ongoing pain management for CRPS due to the work accident.  The ALJ found the claimant was PTD as a result of the work injury alone and noted he had unpredictable chronic pain that required opioid medication that caused cognitive deficits and had permanent restrictions from Dr. Lennard and Dr. Roeder.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Simon Law Group, P.C.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2018 – June 2018

Claimant’s Injury Not Compensable Because There Was Nothing About that Particular Step that Caused Her Injury

MacFedries vs. General Cable Corporation, Injury No. 15-034728

On May 21, 2015, the claimant injured her right knee while stepping up onto a concrete step when she felt a popping in her right knee accompanied by pain.  She reported to her doctors that she was not really doing anything, did not fall, and was simply going up the stairs when she sustained her injury.  It was also noted that she had significant right knee arthritis and had sustained a prior right knee injury in 2014.

At a hearing, the ALJ found that the claimant’s 2015 knee injury was not compensable in light of the fact that she failed to prove she was injured in an accident that arose out of and in the course and scope of her employment.  The ALJ noted that the claimant did not present any evidence regarding the height or rise of the step or show there was anything particular about the step itself that caused her to injure her right knee.  In fact, the claimant testified that she simply stepped onto the step and felt a pop and knee pain.  The ALJ likened these facts to those in Miller vs. Missouri Highway and Transportation Commission, wherein the Court held that an injury was not compensable when the employee’s knee popped while walking on an even road surface, and just because an injury occurs during work does not mean that it arises out of work.  On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it noted that the claimant failed to show that the risk source of her injury, stepping up on a step, was work-related.

Knee Injury from Hurdle on Obstacle Course Compensable Because Claimant was  Encouraged by Employer to Complete Course in Exchange for PTO, and Claimant Not Equally Exposed to Risk of Landing Awkwardly on Obstacle Course Outside of Employment

Reiter vs. Kansas City Police Department, Injury No. 15-103652

The employer owned and maintained an obstacle course on its premises to train cadets, and the employer also allowed officers to earn two days of PTO by completing the course within a specified time limit.  Officers had to complete the course while off-duty and sign a form indicating that any injuries sustained while undertaking the course would be treated as “non-duty related injuries.”  On December 10, 2015, the claimant sustained an injury to his right knee while off-duty after leaping a hurdle on the course and landing awkwardly.  The employer denied the claim, and the claimant underwent an unauthorized ACL repair with Dr. Snyder. 

At a hearing, the employer argued that the injury was not compensable, because it occurred during a recreational activity and while the claimant was off-duty.  The claimant testified that the only reason he participated in the activity was to earn PTO, not for recreational purposes.  The ALJ held that the obstacle course was not a recreational activity, because the employer provided incentives to encourage officers to complete the course, and the injury was found compensable.  The employer was ordered to pay medical, TTD, and PPD. 

The employer appealed to the Commission, which affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it noted that the ALJ came to the correct conclusion but incorrectly cited numerous pre-2005 amendment decisions in her opinion.  The Commission held that the correct analysis was whether the risk source of the injury was one to which the claimant was equally exposed outside of work.  It held that the risk of injury in this case was landing awkwardly while attempting to clear hurdles, and the risk source was the obstacle course. The Commission held that this risk was related to the claimant’s employment because he was encouraged to complete the course in exchange for PTO.  Also, the Commission found that the claimant was not equally exposed to the hazard or risk of landing awkwardly after attempting to clear a hurdle on the employer’s obstacle course in his normal non-employment life.  Therefore, the injury arose out of and in the course and scope of employment and was compensable.  The Commission also found that the waiver the claimant signed prior to undertaking the obstacle course was invalid because an employee cannot agree to waive his/her rights under workers’ compensation.

Summary Judgment Not Proper Due to Genuine Dispute Regarding Material Facts Needed to Establish Claimant Was a Statutory Employee

Barger vs. Kansas City Power & Light Company, Case No. WD80778 (Mo. App. 2018)

FACTS:  The employer (KCPL) was an energy company that used condenser tubes, which were occasionally cleaned in a process that took approximately four days.  KCPL originally used its own employees to clean the tubes, but in 2010, it contracted with a company (Projectile) to perform that task.  The claimant was an employee of Projectile and cleaned the tubes at the plant on five occasions over the course of several years.  On March 21, 2013, he was at the plant to clean the tubes when he sustained an injury to his right wrist.  He filed a workers’ compensation claim against Projectile and subsequently filed a civil suit against KCPL, which argued that the claimant could not file a civil suit because he was a statutory employee of KCPL under workers’ compensation law.  KCPL moved for summary judgment, which the Circuit Court granted.

The claimant appealed and argued that the circuit court should have tried the case rather than granting summary judgement.  On appeal, the Court noted that summary judgement was only appropriate if there was no genuine issue of material fact as to whether the claimant was a statutory employee of KCPL. Under Missouri Workers’ Compensation Law, a person is a statutory employee if the work is performed pursuant to a contract; the injury occurs on or about the premise of the alleged statutory employer; andthe work is in the usual course of the alleged statutory employer’s business.  “Usual business” is defined as activities routinely done; on a regular and frequent schedule; contemplated in a contract or agreement between the contractor and the alleged statutory employer which will be repeated over a short span of time; and performance of which without the contract would require the statutory employer to hire permanent employees. 

HELD:  The Court found there was a genuine dispute as to whether the claimant was, in fact, a statutory employee of KCPL, including questions regarding whether the tubes needed to be cleaned routinely and on a regular and frequent schedule, whether KCPL owned the necessary tools required to complete the work, and whether KCPL would have to hire permanent employees to clean the tubes if they did not contract that work out to Projectile.  Therefore, summary judgment was not proper, and the Circuit Court’s decision was reversed.

Claimant Was Statutory Employee, and Ms. Carter, the Company’s Owner, Found Personally Liable for Benefits

Rodas vs. The Carter Group, Villa Bella LLC, and Aandrea Carter, Injury No. 15-078084

The claimant worked at Villa Bella Apartment Complex when he sustained an injury to his right knee on May 18, 2015.  He was hired as a contractor by The Carter Group to do carpentry, roofing, and anything having to do with remodeling on Ms. Carter’s properties.  Ms. Carter was the sole owner of Carter Group and Villa Bella, neither of which carried workers’ compensation insurance.

At a hearing before an ALJ, Ms. Carter argued that the claimant was an independent contractor, not an employee.  The ALJ found that the claimant was a statutory employee, because Villa Bella routinely engaged in the erection, demolition, alteration, and repair of its properties, and the claimant performed work pursuant to a contract, on or about the premises of the employer, and that work was in the usual course of the employer’s business.  The ALJ ordered Villa Bella and Ms. Carter to pay PPD, TTD, and medical.

Bella Villa and Ms. Carter appealed to the Commission, which affirmed the ALJ’s decision and Award with a supplemental opinion.  The Commission agreed that the claimant was a statutory employee of Bella Villa, which would otherwise have to hire a permanent employee to perform similar work.  However, the Commission also found that Ms. Carter exclusively owned and controlled 100% of both the Carter Group and Villa Bella, which were not legitimate separate corporate entities, and she used these corporations as an “alter ego” in order to avoid her responsibilities under workers’ compensation law.  By not carrying insurance, Ms. Carter caused the claimant to incur substantial uncompensated medical expenses and lost wages.  Therefore, the Commission held that Ms. Carter was personally liable for PPD, TTD, and medical benefits.

Fund Not Liable for PPD Because No Permanent Disability Resulted from Last Work Injury

Collins vs. Kone, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-023689

The claimant worked as an elevator repairman, and on April 2, 2013, he bent over in an awkward position on his knees to release an emergency hook on an elevator and had a sudden worsening of low back pain.  He was already treating for a prior work-related low back injury that he sustained in April 2012.  Prior to the 2013 incident, he noted improvement in his complaints, which were then temporarily reaggravated by the 2013 incident.  On May 28, 2013, the claimant reported to the treating doctor that his complaints had returned to the level they were prior to the 2013 incident.  The doctor opined there was not a new injury in 2013, because the claimant’s complaints were identical to those he had prior to that incident, and he declined to change Dr. Lennard’s prior work restrictions or disability rating from the 2012 injury.  The claimant and employer entered a settlement agreement for 15% PPD of the body referable to the 2013 claim.

Dr. Paul and Dr. Mullins each issued an IME report.  Dr. Paul assessed permanency in the 2012 injury alone and did not mention the 2013 injury.  Dr. Mullins reviewed the same treatment records and assessed PPD due to the 2013 incident as a separate injury.

The claimant filed a claim against the Fund and testified at his deposition that he had an increase in complaints after the 2013 incident and was not able to return to his job performing elevator repairs.  However, the ALJ did not find his testimony credible because it was inconsistent with his medical records, wherein he also reported an increase in pain after he drove to Fort Leonard Wood to work on an elevator on April 19, 2013, seventeen days after the 2013 incident.  The ALJ held that the claimant did not sustain any additional permanent disability as a result of the 2013 incident, and therefore, the Fund was not liable for any permanency in that matter.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Liable for Future Medical for Retained Hardware Under Statute Requiring Employers to Provide Prosthetic Devices to Cure and Relieve Effects of Work Injury

Penning vs. Harley Davidson, Injury No. 13-046307

The claimant felt a pop and developed right wrist pain at work on May 13, 2013 while pushing down on a drive train.  He was directed to Dr. Toby, who diagnosed a chronic scaphoid fracture non-union that was pre-existing and not related to the work injury.  Dr. Toby also diagnosed right carpal tunnel syndrome, which he opined was caused by swelling due to the chronic scaphoid non-union, and he performed a wrist fusion with hardware and carpal tunnel release.  At the request of claimant’s counsel, Dr. Guinn evaluated the claimant and related both the fracture and the carpal tunnel syndrome back to the work accident.

At a hearing, the ALJ found Dr. Guinn’s opinion persuasive and awarded 35% PPD of the right hand/wrist.  The ALJ also opined that because the claimant had retained hardware in the right wrist, the employer was liable for future medical referable to the same, pursuant to the statute that requires employers to provide prosthetic devices to cure and relieve the employee from the effects of the work injury.

On Appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it noted that the claimant’s condition was causally related back to the work accident, because the accident caused a change in the pathology of the claimant’s wrist that produced immediate, unprecedented pain and disability that necessitated treatment.  The Commission also found that the claim for carpal tunnel syndrome was not prohibited, although the claimant did not specifically plead carpal tunnel syndrome in his Claim for Compensation.

Commission Could Not Commute PTD Award to Lump Sum Because Agreement Did Not Constitute a “Claim,” Lump Sum Amount Was Not Present-Day Value of PTD Benefits, and Agreement Did Not Plead Unusual Circumstances

Dickemann vs. Costco Wholesale Corp., Case No. SC96513 (Mo. Sup. Ct. 2018)

FACTS:  The claimant sustained a compensable work injury in July 2010.  An ALJ ordered the employer/insurer to pay PTD benefits, and that Award became final in April 2014.  In November 2016, the employer and claimant entered into an Agreement to commute the Award to a lump sum of $400,000.00.   However, the Commission refused to approve the Agreement and held that it lacked statutory authority to do so.

The claimant appealed to the Missouri Supreme Court and argued that pursuant to a prior decision inNance vs. Maxon Elec. Inc., a post-Award agreement to forego weekly benefits in exchange for a lump sum payment is a claim, and the Commission has to approve it if the employee fully understands his/her rights, has agreed to the settlement voluntarily, and the agreement was not procured as the result of undue influence or fraud.

HELD:  On appeal, the Court affirmed the Commission’s decision.  It held that the Commission did not have authority to consider the Agreement, because it did not constitute a claim under workers’ compensation law, because the claim had already been resolved in April 2014.  In this opinion, the Court overturned the prior decision inNance.  The Court also held that the Commission did not have statutory authority to approve the Agreement because the lump sum to be paid ($400,000.00) was not the financial equivalent of the present-day value of the PTD benefits, which was at least $590,000.00 when taking account of the claimant’s life contingency.  The Court further held that the Commission could not approve the Agreement because commutation is only allowed under clearly unusual circumstances, but the Agreement did not allege any unusual circumstances.

Missouri Court of Appeals Does Not Have Authority to Review Award of Temporary or Partial Benefits in a Workers’ Compensation Claim

Leech vs. Phoenix Home Care, Inc., Case No. SD35220 (Mo. App. 2018)

FACTS:  The ALJ awarded the claimant TTD benefits in an amended Temporary Award, which was affirmed by the Commission.  The employer filed an appeal with the Court.  The claimant subsequently filed a Motion to Dismiss the employer’s appeal on the grounds that the Court does not have statutory authority to review an Award of temporary or partial benefits.

The employer pointed to a Missouri regulation that states that, “Any party who feels aggrieved by the issuance of a temporary or partial award by any administrative law judge may petition the commission to review the evidence upon the ground that the applicant is not liable for the payment of any compensation…” 8 C.S.R., section 20-3.040.  The employer argued that the Court should consider its appeal because it was denying liability for any compensation in this matter.

HELD:  The Court was not persuaded by the employer’s argument and granted the claimant’s Motion to Dismiss.  It held that it has statutory authority to review an appeal from afinal Award of the Commission, not temporary or partial awards, and as an appellate court, its authority to consider an appeal is governed by statute, not by administrative regulations.

Employer Liable for Total Knee Replacement, Despite Significant Pre-Existing Arthritis, Because Injury Complicated the Arthritis and Caused Increased Pain and Need for Surgery

Pierce vs. Bedrock, Inc., d/b/a Tri-State Motor Transit Co., Injury No. 09-072827

The claimant sustained a compensable right knee injury on September 14, 2009.  Dr. Parmar performed an ACL repair and found evidence of Grade III/IV chondromalacia.  He placed the claimant at MMI and opined that he would need a total knee replacement (TKR) in the future due to his pre-existing arthritis.  Dr. Stuckmeyer evaluated the claimant at his attorney’s request and opined that the need for a TKR flowed from the claimant’s most recent injury.  The claimant settled with the employer for 26% PPD of the right knee, and medical was to be left open for a period of one year after the date of settlement, which was approved on May 4, 2012.  One month later, the claimant demanded that the employer authorize a TKR, which was denied in light of Dr. Parmar’s opinion.

On November 3, 2014, the claimant filed a Motion to Reactivate his claim.  The employer filed an objection, and the claimant requested a hearing.  At a hearing, the ALJ denied the Motion because no new physical evidence or medical opinions were admitted at hearing that were not previously available at the time the claimant voluntarily entered the compromise settlement.  The ALJ also found Dr. Parmar’s opinion persuasive and held that the employer was not liable for the TKR.

On Appeal, the Commission reversed the ALJ’s decision and Award.  It found that regardless of reactivation, it had jurisdiction to determine liability for future medical treatment because the claimant requested surgery during the time period that future medical was to remain open under the settlement agreement.  The Commission also held that although the claimant had a history of prior knee issues before the work injury, he did not require surgical intervention untilafter the work injury.  Therefore, the work injury was the prevailing factor in causing a change in pathology in the claimant’s right knee and a permanent increase in disabling symptoms, which necessitated a TKR.  Therefore, it did not matter if the surgery was required because the work injury complicated a pre-existing condition, because once the accident and injury were found compensable, the claimant only needed to show that the need for treatment flowed from the work injury.

Compensable Occupational Disease Claim for Chronic Right Rotator Cuff Tear Due to Repetitively Slicing Meat and Cheese

Dockery vs. Dierbergs Markets, Inc., Injury No. 14-049534

The claimant, a 64-year-old long-time deli worker, sliced 300-400 slices of various meats and cheeses each shift.  On November 6, 2014, she had sudden onset of right shoulder pain while pulling on a ham.  An MRI showed a full thickness rotator cuff tear.  The employer sent her to Dr. Nogalski, who diagnosed a shoulder strain and chronic rotator cuff tear and recommended conservative treatment, including physical therapy.  She was subsequently released from care and followed up with her own doctor, Dr. Sigmund, who opined that her rotator cuff tear probably was pre-existing, and the changes on the MRI looked chronic, but she may have done something at work to exacerbate the problem or extend the tear.  Dr. Sigmund performed a right shoulder arthroscopy.

Dr. Schlafly evaluated the claimant at her attorney’s request and opined that the years she worked as a deli cutter was the prevailing cause of her chronic rotator cuff tear, because repetitive use of the shoulder could cause a gradual progressive tearing where symptoms do not develop until the tear reaches a certain point in size.  Dr. Nogalski disagreed with Dr. Schlafly and opined that the MRI did not show any acute findings, and work was not the prevailing cause of the tear. 

At a hearing, the ALJ found the opinion of Dr. Nogalski more persuasive and denied compensation.  On Appeal, the Commission noted that the claimant made hundreds of slices of meat/cheese each day using her right hand/arm to operate the slicer, and she also routinely carried heavy boxes of meat weighing 40-50 pounds.  The Commission reversed the ALJ’s decision and Award and held the employer was responsible for past medical expenses, TTD, and 35% PPD of the right shoulder.

Firefighter’s Claim for NHL Due to Exposure to Fumes/Smoke Found Compensable Because Claimant Established Increased Risk/Probability of Developing NHL Due to Occupational Exposure

Cheney (Deceased) and Surviving Spouse vs. City of Gladstone, Injury No. 08-066683

The claimant, a longtime firefighter, developed non-Hodgkin’s lymphoma (NHL).  He filed a workers’ compensation claim, underwent treatment, and subsequently died as a result of the disease on May 22, 2014.  He was exposed to smoke and other emissions during his work as a firefighter, including fumes from burning household objects that contained toxins and carcinogenic chemicals.  He was also regularly exposed to diesel fumes in the fire station due to poor ventilation.

Dr. Lockey and Dr. Koprivica testified that the claimant’s occupational exposure as a firefighter was the prevailing factor in causing his NHL.  Dr. Lockey cited a statistical correlation between firefighting and NHL.  Dr. Shah testified on behalf of the employer that NHL has no known cause and is a disease to the lymphatic system, not the respiratory tract or cardiovascular system, and age, race, and obesity are known risk factors for NHL.  The claimant’s treating oncologist also opined in a report that it is impossible to know the cause of NHL.

At a hearing, the ALJ found that the claimant failed to prove that his job duties as a firefighter were the prevailing factor in causing his NHL.  The ALJ found the opinions of Dr. Shah and the oncologist persuasive and opined that statistical correlation does not equal causation.  The claimant argued that the firefighter presumption should apply, which states that “diseases of the lungs or respiratory tract, hypotension, hypertension, or disease of the heart or cardiovascular system, including carcinoma, may be recognized as occupational diseases for the purposes of this chapter and are defined to be disability due to exposure of paid firefighters of a paid fire department… if a direct causal relationship is established.”  The ALJ rejected this argument because medical causation had not been established, and NHL was not one of the diseases listed in that provision.

On Appeal, the Commission reversed the ALJ’s decision and Award.  The Commission held that with respect to occupational disease, the claimant does not need to establish causation to a medical certainty.  The Commission found the claim compensable because it found that there was an increased risk of contracting NHL as a result of occupational exposure as a firefighter.  The Commission did opine it was unclear whether NHL qualifies as one of the diseases in the firefighter provision, but it ultimately found that it did not matter, because the claim was compensable regardless.  Therefore, the employer was ordered to pay death benefits to the claimant’s dependent widow.

No Safety Penalty Because Telling Employees to Obey Any Safety Rules at a Customer’s Plant Was Not Sufficient to Trigger a Penalty

Marquess (Deceased) and Estate of Jesse Marquess and Estate of Patricia Marquess vs. Fischer Concrete Services, Inc. and University of Missouri Healthcare, Injury No. 11-068578

The claimant was working as a pneumatic tanker truck driver for the employer and delivered material to customers’ plants.  It was customary for drivers to open the center hatch on the top of the tank to allow it to be filled.  The trucks had ladders on the side, but some customers required drivers to use a “gantry,” which was a platform with a permanent set of steps and railings.  On August 27, 2011, the claimant was on site at a customer’s plant (Plant) when he climbed the ladder on his truck to open the hatch and fell to the ground, and he was rendered a paraplegic.  The Plant did require all drivers to use a gantry while on the property.  There was a written safety rule posted on the wall at the Plant that announced this policy.  The employer had a policy that while on site at a customer’s plant, all drivers were to adhere to any safety rules at that facility.  During treatment, the employer paid only 50% of the medical bills and TTD, because it argued it was entitled to a safety penalty because the claimant failed to comply with its policy when he violated the Plant’s safety rule regarding the gantry.

At a hearing, the ALJ declined to award a safety penalty because the Plant’s rule was not the employer’s safety rule, and simply stating that drivers should adhere to a customer’s rules is akin to suggesting that a worker should “be safe” or “not do anything stupid,” which is not sufficient to trigger a safety penalty.  The ALJ found the claimant PTD and ordered the employer to pay the rest of the TTD and medical owing and provide future medical.  The claimant subsequently died, and his surviving spouse filed an Amended Claim for death benefits before she also died, at which time her estate was substituted as a claimant, along with the claimant’s estate and the guardian of their dependent granddaughter.

On appeal, the Commission affirmed the ALJ’s decision and Award with respect to the safety penalty, reasoning that telling drivers to obey the safety rules at other companies’ facilities is akin to telling drivers to “obey all traffic laws,” which has previously been found insufficient to assert a safety penalty.  The Commission also considered the issue of death benefits and held that the prevailing cause of the claimant’s death was underlying coronary artery disease, not any conditions relating to his work injury.  Therefore, the employer was not responsible for the same.

No Safety Penalty Because Employer Failed to Show It Made Reasonable Efforts to Ensure Employees Obeyed Reasonable Safety Rules

Elsworth vs. Wayne County Missouri, Case No. SD34919 (Mo. App. 2018)

FACTS:  The claimant, an 18-year-old who was on the job less than a month, was driving a dump truck when he rounded a corner and rolled the truck, which placed him in a persistent vegetative state.  He had a commercial drivers’ instruction permit for two weeks prior to his first day of work, and he was directed to drive the dump truck by himself.  The employer alleged the claimant was speeding and not wearing a seatbelt at the time of the accident, and it argued it was entitled to a safety penalty reduction in benefits.

Evidence at the hearing indicated that the claimant was accompanied by other drivers on a few occasions and was told on at least two occasions to wear his hard hat and seatbelt and observe all traffic laws while driving.  No other evidence was presented at the hearing regarding what, if any, specific safety training the claimant underwent.  The ALJ found that the employer failed to prove it was entitled to a safety penalty.  On appeal, the Commission affirmed the ALJ’s decision and Award.

HELD:  On appeal, the Court noted that in the past, specific factors have been considered to determine whether an employer has taken reasonable efforts to cause compliance with safety rules, including: distribution of written safety materials; scheduling and presentation of regular training seminars educating employees concerning the rules; warning employees that disciplinary action will be taken if employees fail to follow necessary guidelines; completion by employees of a written test to confirm understanding of the rules; and whether known violations of the safety rules have previously gone unpunished.  The Court held that the Commission could have found from the evidence that the employer did not provide specific training regarding dump truck safety and did not make reasonable efforts to enforce safety rules, especially considering that the claimant was directed to drive a commercial vehicle by himself with almost no experience.  The Court affirmed the Commission’s decision and Award.

Employer Liable for PTD After Right Rotator Cuff Tear/Repair and Conservative Left Shoulder Treatment, Despite Fact that Claimant Had Only Second Grade Education and Could Not Speak English, and Claimant Did Not Develop Left Shoulder Symptoms Until Two Years After Work Accident

Pineda vs. EFC Corporation, Injury No. 06-036310

The claimant, a 59-year-old employee from Mexico with a second-grade education and limited English skills, sustained a shoulder injury on April 28, 2006 while lifting heavy windows at work.  The doctor diagnosed a partial rotator cuff tear and labral tear and performed an arthroscopic repair.  The claimant continued to have significant difficulty with the right shoulder after surgery, despite undergoing injections.  He returned to work and sustained a second injury on January 31, 2008, when he developed left shoulder pain, which he attributed to using only his left arm at work to compensate for his right shoulder.  He treated conservatively for the left shoulder.  The employer was not able to accommodate the claimant’s restrictions beginning in February 2009, and he has not worked since.

Both parties submitted expert opinions.  Dr. Volarich evaluated the claimant at his attorney’s request, and Dr. Lennard evaluated him at the employer’s request.  Both doctors assessed PPD of the bilateral shoulders and recommended permanent restrictions.  Dr. Volarich believed the conditions in both shoulders resulted from the 2006 work injury and opined that the claimant was PTD as a result of the 2006 injury alone.  Dr. Lennard opined the left shoulder condition was the result of a separate work injury that occurred in 2008.  With respect to vocational evaluations, Mr. Eldred opined the claimant was PTD as a result of the April 2006 injury alone.  Mr. England opined that considering Dr. Lennard’s restrictions in combination with the claimant’s academic limitations and language barrier, he was likely unemployable.

At a hearing, the ALJ held that the claimant was PTD in light of the fact that he continued to take narcotic pain medication, needed to lie down during the course of the day, and is unable to speak, read, or write in English.  The ALJ also held that the claimant’s left shoulder condition followed as a natural and legitimate consequence of the original accident in 2006, and there was not a separate injury in 2008.  Therefore, the employer was liable for PTD benefits instead of the Fund.  On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it agreed that the claimant’s left shoulder complaints were the result of the 2006 work injury.

Employer Liable for PTD Benefits for Operated Rotator Cuff Tear, Despite Fact He was Already Limited by Age, Education, and Other Life Factors; Future Medical Left Open Due to Retained Hardware

Duarte vs. Butterball LLC and Treasurer of the State of Missouri as Custodian of Second Injury Fund, Injury No. 09-111523

The claimant was a 76-year-old from Peru who spoke very little English, and who reportedly earned a college degree in Peru.  He developed right shoulder pain while working for the employer on the meat processing line, which involved repeated overhead cutting and pulling to remove the meat from 58 turkeys per minute.  The claimant treated on his own with Dr. Ogden, who diagnosed AC joint osteoarthritis and a chronic rotator cuff tear due to arthritis.  Dr. Lieurance performed an unauthorized right shoulder arthroscopy on June 24, 2009 and a second surgery on April 21, 2010.  The claimant was not able to return to work for the employer after March 31, 2009 due to his shoulder restrictions, and he testified that he was also rejected for a job with another employer for that reason.  The claimant did have several pre-existing conditions, including cataracts and DDD of the lumbar and cervical spine, but he did not have any work restrictions referable to those conditions.

At his attorney’s request, the claimant was evaluated by Dr. Volarich, who placed him at MMI, assessed 40% PPD of the right shoulder, and recommended permanent work restrictions of no overhead use of the right arm and lifting restrictions.  Dr. Parmet evaluated the claimant on behalf of the employer and diagnosed degenerative arthritis with a secondary rotator cuff tear, and he opined that pre-existing arthritis was the prevailing factor in causing the claimant’s condition, not his job duties.  Vocational experts for both parties opined the claimant was PTD and unemployable.  However, Mr. Eldred opined he was PTD due to the right shoulder injury alone, whereas Mr. Dreiling opined he was not PTD due to the right shoulder injury alone, because that injury would not impact the claimant’s ability to perform prolonged standing/walking.

At a hearing, the ALJ found the injury compensable.  With respect to PTD, the ALJ noted that although the court could weigh factors such as the employee’s age, education, physical condition, work history, job skills, and pain when determining PTD, those are not ratable disabilities that are subject to liability from the Fund.  Therefore, the ALJ held that the claimant was PTD as a result of the last injury alone, despite the fact that he was already very limited in the types of work he could perform when he moved to the United States due to his age, education, and other life factors.  The ALJ also concluded that future medical should be left open in light of the fact that the claimant had retained hardware which may require further intervention in the future.  Therefore, the employer was found liable for PTD benefits as well as TTD, past medical, and future medical.  On Appeal, the Commission modified the ALJ’s decision and Award with respect to TTD benefits but otherwise affirmed the Award with respect to PTD and future medical.

Disability Payments Not Credited Against TTD Award Because Employer/Insurer Failed to Clearly Raise the Issue or Provide Any Records at the Hearing to Prove Entitlement to a Credit for Same

Barnett vs. Harley Davidson, Injury No. 15-065149

The claimant worked as an engine assembler at Harley Davidson for 12 years, and he alleged complaints to multiple body parts due to his repetitive job duties.  He treated in plant medical and was then directed to his PCP, who recommended injections and then performed a cervical fusion at C5-6.  Both sides obtained medical opinions, and at a hearing, the ALJ awarded 25% PPD of the body referable to the cervical spine as well as PPD and TTD.

On Appeal, the employer argued it was entitled to a credit for short-term disability payments received by the claimant during the time TTD was owed.

The Commission affirmed the ALJ’s decision and Award with a supplemental opinion.  The Commission declined to award a credit because the employer failed to raise the issue at the hearing or present any records or documentation regarding the source of any short-term disability payments to the claimant.  Pursuant to statute, no benefits derived from any source besides the employer and workers’ compensation insurer shall be considered in determining the compensation due.  Therefore, without documentation that short-term disability payments were made by the employer or the employer’s workers’ compensation carrier, the employer failed to meet its burden to prove that it was entitled to a credit.

Insurer Liable for Enhanced Mesothelioma Benefits Despite Fact that Insurer Did Not Insure Employer During Period of Last Exposure; Statute Providing Enhanced Benefits Constitutional When Applied to Claims Filed After January 1, 2014, Regardless of Date of Last Exposure

Accident Fund Insurance Co.; E.J. Cody Co., Inc. vs. Casey/Murphy, Case No. SE96899 (Mo. Sup. Ct. 2018)

FACTS:  The claimant worked as a floor tile installer for several different companies, and he last worked as a tile installer for the Employer from 1984-1990.  During that time, he was exposed to asbestos while removing old tile.  He retired in 1990, was diagnosed with mesothelioma in 2014, and filed a Claim against the Employer in February 2015.  At the time the Claim was filed, the Employer had an insurance policy purchased from the Insurer with a mesothelioma endorsement that provided coverage for all mesothelioma claims filed on or after January 1, 2014.  The Insurer did not insure the Employer from 1984-1990, when the claimant was last exposed.  The claimant subsequently died from mesothelioma, and his widow (Murphy) proceeded with the Claim following his death.

At a hearing, the ALJ found the Employer/Insurer liable for the enhanced benefits.  On appeal, the Commission affirmed the ALJ’s decision and Award and held that the last exposure rule did not apply to claims made under the toxic exposure provision.  Therefore, the Insurer was liable for the enhanced benefits, despite the fact that it did not insure the Employer at the time of last exposure.  The Commission also limited recovery to Murphy because the amended claim did not identify the claimant’s eight adult children as dependents/claimants.

On appeal, the Insurer argued that it could not be liable for this Claim because it did not insure the Employer at the time the claimant was last exposed to asbestos, and it argued that the toxic exposure provision was unconstitutional if applied retrospectively.  Murphy argued that the Commission erred by excluding Casey’s eight children from the final Award. 

HELD:  The Missouri Supreme Court affirmed the Commission’s decision and Award but modified it with a supplemental opinion, wherein it included Casey’s eight children in the Award.  The Court found that the Employer accepted liability under the statute when it purchased a policy from the Insurer to cover additional benefits for all mesothelioma claims filed on or after January 1, 2014, which would include the current Claim, which was filed in 2015.  The insurance endorsement specifically stated that it applied to any claims filed after January 1, 2014.  The Court reasoned that “the relevant inquiry in this matter is not under whose employment Mr. Casey was last exposed, but whether the terms of the employer’s policy provide coverage.”  The Court also found that the provision was not unconstitutional as applied in this case, because the Claim was filedafter January 1, 2014, and the Employer/Insurer affirmatively agreed to provide coverage for mesothelioma claims filed after January 1, 2014.  It did not matter that the claimant’s employment and exposure with the Employer occurredprior to January 1, 2014.

Notably, the Court found that the last exposure rule that is used to determine liability for occupational disease claimsdoes not apply to toxic exposure claims.  Therefore, it is unclear whether any/every employer who has employed a claimant that was exposed to asbestos during that employment will have potential liability for enhanced benefits under this provision.

Travelers Did Not Effectively Cancel Policy Prior to Date of Injury Because Did Not Provide Unequivocal, Advanced Notice of Cancellation That Strictly Complied with Policy’s Terms

Chudnovtsev vs. BSI Constructors, Inc; St. Louis Brick & Stone, Injury No. 14-027901

St. Louis Brick (SLB) was a subcontractor of BSI.  It purchased workers’ compensation insurance from Travelers for the period November 2013 – November 2014.  According to the terms of the policy, it could be cancelled unilaterally if Travelersmailed or delivered advanced written notice of the cancellation.  SLB had an inconsistent payment history.  On March 13, 2014, Travelers issued a Notice of Cancellation (March Notice) for non-payment with an effective date of April 2, 2014 and advised that the policy “is cancelled,” although it also noted that cancellation could be rescinded if the minimum amount due was received before that date.  One month later, on April 15, 2014, Travelers generated a lapse of insurance letter (April Letter) to advise SLB that coverage was terminated as of April 2, 2014.  However, this again advised that coverage could be reinstated if SLB paid the outstanding premium.  On April 17, 2014, SLB generated a check payable to Travelers.  However, a stop payment order was issued sometime between April 22, 2014 and April 24, 2014, and Travelers returned the check.

On April 21, 2014, the claimant sustained a compensable injury while working for SLB and filed a workers’ compensation claim against SLB and BSI, the general contractor.  Travelers argued it did not have a valid policy for the alleged April 21, 2014 date of injury because the policy was cancelled on April 2, 2014.  The parties entered into an agreement regarding permanency, and the only remaining issue was whether Travelers was responsible for payment of benefits as opposed to BSI’s insurer.

At a hearing, the ALJ noted that notice of cancellation in Missouri must be very specific, strictly comply with the terms of the policy, unequivocal and unmistakable, and it must be a present cancellation that is not dependent upon some future event.  The ALJ concluded that the March Notice was not an effective cancellation because it advised that Travelers could rescind the cancellation upon receipt of the minimum due.  The ALJ also found that the April Letter did not effectively cancel the policy because it did not provide advanced notice of the cancellation prior to the April 2, 2014 cancellation date, pursuant to the terms of the policy.  The ALJ did conclude that the April Letter could have effectively cancelled after the April 15, 2014 date, except that Travelers could not prove that it “mailed or delivered” the notice as required by the policy.  Simply showing a copy of the letter with SLB’s address was not sufficient.  Therefore, the ALJ held that Travelers did have an effective insurance policy on the claimant’s date of injury and was responsible for paying workers’ compensation benefits.  On appeal, the Commission affirmed the ALJ’s decision and Award.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2018 – March 2018

Court Affirms Commission Decision that Claimant’s Injury Compensable Because Claimant’s Work Was an Unusual Strain, Despite the Fact They Were Her Normal Job Duties That She Performed Every Day

Clark vs. Dairy Farmers of America, Case No. SD34826 (Mo. App. 2018)

FACTS:  The claimant worked in cheese production, and her job duties primarily involved leaning against the edge of a large vat and using a shovel to turn the cheese.  This involved leaning her chest against the vat and repeatedly pushing the shovel in and out of the cheese to stir the mixture, which could weigh up to 40 pounds.  On her date of injury, the claimant was attempting to lift the shovel back out of the cheese mixture when she sustained a rib fracture.  At the hospital, she was also noted to have a lytic lesion close to the fracture spot, which was later revealed to be a rare malignancy that can weaken a bone “to the point that it can fail under a force that is less than normal”.  Therefore, the employer argued that her job duties were not the cause of her fracture.  However, the claimant’s doctor opined that her job duties were the prevailing factor and were sufficient to cause a rib fracture even without the lesion.

At a Hearing, the ALJ held that the injury was not compensable.  On Appeal, the Commission reversed the ALJ’s decision and found that the claimant did suffer a compensable accident. 

HELD:  The employer appealed and argued that there was not a compensable accident.  First, it argued that the pop, or fracture, could not be both the “accident” and the “injury.” The employer also argued that the act of performing her normal job duties could not have been the “accident” because she did this every day, and therefore, it was not an unusual strain under the statute.  The Court agreed with the Commission and held that the claimant’s normal job duties that she performs eight hours per day can still constitute an unusual strain under the statute, and an accident does not require “something distinguishable from and in addition to routine work, such as a precursor event.”  Therefore, the Court affirmed the Commission’s decision and award.

Court Affirmed Summary Judgment for Defendant in Negligence Claim Because Using Fork Truck in Unsafe Manner was Breach of Employer’s Non-Delegable Duty to Provide a Safe Workplace

Fogerty vs. Armstrong & Meyer, Case No. SC96030 (Mo. Sup. Ct. 2018)

FACTS:  The claimant and Meyer (the defendant) were working for a construction company and were assigned to install a fountain, but the employer did not provide detailed instructions on how to do so.  They were required to move large stones and decided to use a front loader by using a strap as a sling to carry the stones beneath the front loader’s forks.  Meyer asked the claimant to walk beside the stone to keep it from swinging as he drove the front loader.  While the claimant did so, one of the forks unexpectedly hit the claimant in the back.  He settled a workers’ compensation claim against the employer and subsequently filed suit against Meyer for negligence.

Meyer moved for summary judgment, arguing that the suit was barred because the claimant failed to show that he breached a duty that was separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  The Circuit Court agreed and granted summary judgment in Meyer’s favor.  The claimant appealed.

HOLDING:  The Missouri Supreme Court held that in order to maintain a negligence action against a co-employee, the claimant must show that the co-employee breached a duty that was separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  Here, the employer failed to provide a safe manner and means for constructing the fountain and using the front loader to move large stones.  Therefore, Meyer’s negligence in deciding how to install the fountain and move the stones was reasonably foreseeable by the employer, and it was a breach of the employer’s non-delegable duty to provide a safe workplace.  The Court affirmed the Circuit Court’s decision, and the claimant was barred from pursuing a third-party action against Meyer.

Court Affirmed Summary Judgement for Defendant in Negligence Claim Because Decision to Have Claimant Drive in Icy Conditions was Breach of Employer’s Non-Delegable Duty to Provide a Safe Workplace

McComb vs. Norfus & Cheese, Case No. SC96042 (Mo. Sup. Ct. 2018)

FACTS:  The claimant worked as a courier and was scheduled to work on a day when there was a severe winter storm warning.  He was advised by his supervisors to complete his route despite the winter storm but to drive slowly and carefully.  Before the end of his shift, his vehicle slid off the road and flipped several times, and he died as a result.  The claimant’s widow (plaintiff) sued the co-employees, his supervisors, alleging that they were negligent in sending the claimant on his route despite weather conditions.

Co-employees moved for summary judgment, claiming that the suit was barred by the exclusivity provision.  The trial Court initially granted summary judgment in favor of the co-employees.  The plaintiff appealed, and the Court of Appeals reversed the decision.

HOLDING:  The co-employees appealed to the Missouri Supreme Court, which reversed the Appellate Court’s decision and held that the decision to have the claimant drive in inclement weather was a breach of the employer’s non-delegable duty to provide a safe work place.  Therefore, the plaintiff could not file a wrongful death action against the co-employees.

Claimant Injured in Course and Scope After Falling From the Top of a Truck Because He Was Climbing Down from the Roof in Order to Leave the Premises After He was Locked in, and He Was Not Equally Exposed to Risk of Falling Off a Truck Outside of Work

Brown vs. Superior Linen Supply Company, Injury No. 14-093366

The claimant sustained an injury on October 31, 2014 after he became locked inside the employer’s courtyard at the end of his shift and was attempting to escape the premises by climbing a fire escape ladder to the roof, walking across the roof to the other side of the building where delivery trucks were parked, and climbing down onto the top of a delivery truck.  As he attempted to climb from the truck to the ground, he fell and sustained an injury to his right ankle, for which he underwent two surgeries.

At a Hearing, the claimant testified that he believed he needed to climb down from the roof onto the truck in order to escape the courtyard area and catch his bus.  The employer argued that the injury did not arise out of and in the course and scope of employment because he was doing something that was not a normal work activity.  The ALJ found that the claimant’s injury arose out of and in the course and scope of his employment because climbing down from the roof was incidental to his work because he was attempting to clock out and leave for the day.

The employer appealed to the Commission, which affirmed the ALJ’s decision and Award with a supplemental opinion.  The Commission noted that compensation is not limited to workers who are injured while actively engaged in their job duties.  Instead, when considering unequal exposure, the focus should be on whether the employee was injuredbecause they were at work rather than simply while they were at work.  The Commission reasoned that the claimant was injured because he became locked inside the courtyard as the direct result of a normal work-related activity, i.e. gathering his things before clocking out and heading home.  Also, the risk of becoming locked inside the employer’s courtyard was not a risk or hazard to which he would be equally exposed outside of his employment.  Therefore, his injury arose out of and in the course and scope of his employment.

Employer Liable for Future Medical, Despite Fact that Future Medical Would Also Provide Treatment for Non-Work-Related Injuries

Morris vs. Captain D’s and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case Nos. SD34835 and SD34836 (Mo. App. 2018).

The claimant was injured in two work-related accidents in January 2007.  He had several pre-existing injuries and disabilities.  He was initially evaluated by Dr. Volarich in January 2008, at which time the doctor opined he was PTD as a result of his primary injuries in combination with his pre-existing medical conditions and recommended ongoing pain management.  The claimant proceeded to undergo multiple surgeries with his personal doctor, including cervical and lumbar fusions.  Dr. Volarich again recommended ongoing pain management in December 2012 and testified that the need for future medical was due to a mixture of his work injuries, pre-existing back problems, and his subsequent neck and low back problems.  The employer presented medical testimony that the claimant did not require additional medical treatment for either work injury.

At a Hearing, the ALJ found the claimant PTD and the Fund responsible for the same.  The ALJ also found Dr. Volarich persuasive and held that the employer was liable for future medical treatment with respect to the two primary injuries.  The ALJ noted that although Dr. Volarich was not clear as to which treatments were for which disabilities/injuries, the doctor had not changed his mind that the claimant required some treatment for pain as a result of his work injuries.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

The employer appealed the award of future medical treatment and argued it was not supported by substantial evidence on the record because Dr. Volarich testified that treatment would be related to a “mixture” of work and non-work-related problems and the “lack of clarity of specificity from Dr. Volarich… does not support a finding that the claimant is in need of future medical treatment related to the injuries of January 3, 2007 and January 14, 2007”.  The Court agreed with the Commission and affirmed its Decision and Award.  The Court noted that an employer may be ordered to provide future medical care that will also treat non-work-related injuries if evidence establishes that the need for treatment is caused by the work injury.  The Court reasoned that the claimant established a reasonable probability that future treatment was needed for his neck and back due to the January 2007 work accidents.

Claimant PTD Due to Occupational Disease From Exposure to Biological Particulates Created By Construction Project in Building Where He Worked As Janitor

Cooper vs. Mid-Missouri Mental Help Center and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 07-130828

The claimant, a 50-year-old janitor, was working for the employer in the same building where a couple of construction/demolition projects were occurring, which produced a large amount of white dust that the claimant cleaned daily for approximately two months. He was not given a dust mask or any type of protective gear.  He soon after developed multiple symptoms, including shortness of breath, headaches, dizziness, blurred vision, and memory issues.  He was ultimately diagnosed with hyper-sensitivity pneumonitis and developed various other conditions as a result of his treatment for the same.

The claimant’s medical expert, Dr. Parmet testified that environmental sampling of the area where the claimant was working showed that 20% of the dust he was exposed to was comprised of fungi and biological particles, and in his medical opinion, exposure to a large amount of particles in the air can overwhelm the body’s natural defenses and result in hyper-sensitivity pneumonitis.  Dr. Parmet opined that this exposure was the prevailing cause of the claimant’s conditions.

At a Hearing, the ALJ found Dr. Parmet’s testimony persuasive regarding medical causation.  The ALJ noted that the claimant does not need to establish the exact cause of the occupational disease if he can show that the disease is one that the general public is not exposed to, and that there is a probability his occupational activities caused the disease.  The ALJ held that the claimant met his burden to establish injury by occupational disease that was medically causally related to work and ordered the employer to pay PTD benefits, past medical expenses, and future medical.  The ALJ also ordered a 15% penalty against the employer because it did not use any methods for the prevention of occupational diseases caused by exposure to the dust.  The ALJ reasoned that if the employer had provided effective devices or a means/method of prevention, such as dust masks, the occupational disease could have been prevented.  On appeal, the Commission modified the ALJ’s decision and Award with respect to the 15% safety penalty and noted that there was no evidence on the record showing that there were effective devices, means, or methods that existed for the prevention of the employee’s injury or that the employer failed to provide the same.

Muscle Tear and Hematoma Compensable Because Claimant Was Squatting in Order to Perform a Job Duty, and Hematoma Prevailing Cause of Subsequent Staph Infection

Wilkins vs. Piramal Glass USA, Inc., Case No. ED105683 (Mo. App. 2018)

FACTS:  The claimant was squatting in an awkward position while changing a spool at work, and when he stood up, he tore his left calf muscle.  He was also diagnosed with a hematoma in his left calf and developed a staph infection in his left leg.  He underwent authorized treatment and was placed at MMI.  Notably, the claimant was also diabetic and had a sore on his left ankle a few days prior to his injury.  He also treated for cellulitis less than two months prior to his date of injury.

Dr. Woiteshek evaluated the claimant at his attorney’s request and opined that the work accident was the prevailing cause of the claimant’s muscle tear, hematoma, and the subsequent infection.  Dr. Burns testified on behalf of the employer that the claimant’s uncontrolled diabetes and the sore on his left ankle were the prevailing causes of his infection.  Dr. Burns opined that although a hematoma can become infected, the infection must enter the body another way, such as the ankle sore, and would not spontaneously develop from a hematoma.  At a Hearing, the ALJ awarded compensation referable to the muscle tear and hematoma, but not the staph infection, and held that the infection was not medically casually related to the accident.  On appeal, the Commission reversed the ALJ’s decision and held that the claimant’s work accident was the prevailing cause of the torn muscle and hematoma, which in turn caused the staph infection.  The employer was ordered to pay PPD for all three conditions.

HOLDING:  The employer appealed and argued that the Commission erred in finding the injury arose out of and in the course and scope of employment because rising out of a squatting position is something people do outside of their employment, and therefore he would have been equally exposed to that risk in his normal non-employment life.  However, the Court noted that the claimant was squatting at work in order to replace a spool on the employer’s machine, which was a function of his job, and according to Dr. Burns’ testimony, rising from this awkward position caused the muscle tear.  Therefore, the claimant was injured because he was at work and not simply while he was at work.  The employer also argued that the staph infection was not medically causally related to the torn calf muscle, but the Court found the opinion of Dr. Woiteshek persuasive on the issue of medical causation.  Therefore, the Court affirmed the Commission’s decision and Award.

Claimant Not PTD Because Testimony Regarding His Complaints Not Credible When Compared to Other Evidence on The Record, Including Surveillance Video

Page vs. OCCI, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-096549

The claimant, a 43-year-old heavy equipment operator and general contractor, sustained an injury to his left ankle and right knee at work on October 3, 2008.  The claimant underwent multiple surgeries to the same, ultimately undergoing a complete left ankle fusion in March 2011.  He only briefly returned to work in January 2011 before he “rolled” his ankle on January 12, 2011, but none of the doctors who treated or evaluated the claimant believed the 2011 incident was the prevailing cause of his left ankle condition or need for surgery.  He did not have any significant pre-existing disabilities.

Mr. Weimholt, the claimant’s vocational expert, opined the claimant was unemployable as a result of his 2008 injury.  This opinion was based in large part on the claimant’s subjective reports that he could not perform any interior or exterior maintenance and had to use a cane to enter and exit vehicles.  However, video surveillance of the claimant obtained in 2009, 2013, and 2014 documented him pushing his motorcycle, walking on the roof of a carport, loading lumber into a van, hooking a trailer to a vehicle, operating digging equipment, entering and exiting a van without the assistance of a cane, and helping lift a jackhammer, among other things.

At a Hearing before an ALJ, the claimant admitted to performing all of the activities documented in the surveillance video.  However, he continued to testify that he had severe left ankle pain which made him unemployable.  The ALJ did not find the claimant’s testimony credible in light of the surveillance video and also noted that despite testifying he had to take 5-10 pills of narcotic medication per week, he had not filled a prescription for narcotic medication for two years.  The ALJ found that the January 12, 2011 injury was not compensable because it did not result in a separate injury.  The ALJ did find that the claimant sustained 70% PPD of the left ankle and 35% PPD of the right knee as a result of the October 3, 2008 accident, but he was not PTD.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Liable for PTD Benefits Due to Permanent Work Restrictions for Last Injury, Despite Fact Claimant’s Back Was Treated Conservatively and She Had Significant Pre-Existing Disabilities

Carty vs. Southeast Missouri Mental Health Center – State of Missouri and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-089630

The 66-year-old claimant sustained an injury to her low back when she lost her balance on November 8, 2011, fell to the ground, and sustained an L2 burst fracture with a 5-millimeter fragment retropulsion into the spinal canal.  She was given a back brace and pain medication and briefly underwent physical therapy.  She did not undergo surgery.  The claimant also had pre-existing conditions, including ongoing discomfort and stiffness in her left knee after a torn meniscus in 2005 and a disc bulge at L4-5 for which she underwent injections in 2008 and continued to miss 2-4 days of work per month.  However, she did not have any permanent work restrictions for either injury.

Dr. Volarich evaluated the claimant at her attorney’s request and assessed 35% PPD of the lumbar spine due to her primary work injury as well as significant pre-existing PPD to the lumbar spine and left knee.  However, Dr. Volarich recommended permanent restrictions of changing positions frequently and resting as needed during the day, which were necessary as a result of the last injury alone.  Vocational expert, Ms. Gonzalez, opined that the claimant was unemployable as a result of Dr. Volarich’s permanent restrictions.  The employer presented expert medical evidence that contradicted Ms’ Gonzalez’s opinion.

At a Hearing, the ALJ found the claimant’s testimony credible regarding her complaints and the need to rest up to two hours during the work day.  The ALJ also found the opinion of Dr. Volarich persuasive and noted that the permanent restrictions recommended by the doctor were referable to the primary injury alone.  Therefore, the ALJ ordered the employer to pay PTD benefits and future medical care.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Responsible for PTD Due to Claimant’s Physical Injuries, Psychiatric Injury, and Opiate Dependency, Despite Fact Medical Evidence and Surveillance Video Showed Claimant Was Exaggerating Her Complaints and Disability

Houchen vs. Trimmasters, Injury No. 06-022626

The claimant, a 57-year-old high school graduate, sustained an injury to her neck and bilateral shoulders on January 13, 2006.  Dr. Rosenberg performed a cervical fusion at C5-6 on March 15, 2006.  Dr. Frevert performed surgery to repair a rotator cuff tear on the left shoulder on June 16, 2006, and on the right shoulder on August 7, 2006 and a re-tear on February 22, 2007.  The claimant developed depression as a result of her injury and chronic pain and was prescribed Xanax but did not receive any other treatment for the same.  Medical records also suggest that she developed an opiate dependency as a result of her injury.

The doctors on both sides agreed that the claimant’s neck and shoulder injuries and need for surgery resulted from the work injury.  Dr. Poppa testified on behalf of the claimant’s attorney that the claimant was PTD as a result of a combination of her physical injuries, mental condition, and use of medications.  Dr. Caffrey provided the only vocational evaluation, on behalf of the employer, wherein he noted that she was significantly exaggerating her level of disability but still opined she was unemployable due to her physical limits and lack of transferable skills.  Pain management specialists and the treating doctor opined the claimant was exaggerating her complaints and noted she was also seeking opioid medication from other physicians.  Surveillance video showed the claimant engaging in activities that were inconsistent with her testimony regarding her level of disability.  In particular, one video showed her single-handedly pushing a stalled pick-up truck on a grassy parking area.

At a Hearing, the ALJ agreed that evidence showed the claimant was significantly exaggerating her pain complaints.  However, the ALJ also noted that she underwent four surgeries and suffered from depression and likely opioid dependence as a result of her work injury.  Also, Dr. Caffrey’s was the only vocational opinion presented at the Hearing.  Therefore, the ALJ found the claimant to be PTD as a result of her primary work injury and found the employer responsible for the same.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Responsible for PTD Benefits After Primary Injury Caused Low Back Injury and Psychological Condition, Which Required Claimant to Take Narcotic Pain Medications and Take Frequent Breaks

Kittrell vs. Townsend Tree Service, Injury No. 12-085091

The claimant, a 40-year-old high school graduate, sustained an injury to his low back on October 30, 2012.  Dr. Wayne recommended lumbar ESIs and a TENS unit.  Dr. Coyle subsequently performed a lumbar fusion at L4-S1.  He underwent additional injections with Dr. Wayne and continued to complain of back and lower extremity symptoms.  Dr. Coyle had the claimant undergo an FCE in January 2014, and after the claimant refused to cooperate with the evaluator, Dr. Coyle placed him at MMI.  The claimant proceeded to treat on his own with Dr. Harness.  At a Hearing, the claimant testified that he is limited by his back pain and also developed major depression as a result of his injury.  He testified that he is unable to sleep more than two or three hours at a time and takes naps during the day. 

The claimant’s attorney had the claimant evaluated by Dr. Woiteshek, a psychiatrist Dr. Sky, and Mr. England, a vocational rehabilitation specialist.  Dr. Woiteshek opined he was PTD as a result of the work injury and recommended ongoing pain management.  Mr. England opined the claimant was unemployable in light of his lack of transferable skills below the medium physical demand level, his poor math and reading levels, and his need to take frequent breaks throughout the day.  Mr. Patsavas provided a vocational report on behalf of the employer and opined the claimant was capable of working in the sedentary to light physical demand category.  However, Mr. Patsavas did not consider the effect that being on medication would have on the claimant’s ability to perform these jobs and that taking narcotic medication could prevent him from being hired by employers.

At a Hearing, the ALJ found the opinions of Dr. Woiteshek and Mr. England persuasive and the claimant’s testimony credible regarding his disability.  The ALJ held that the claimant was PTD as a result of the work injury alone and noted his need to take frequent breaks and also his psychiatric problems.  The employer was ordered to pay PTD benefits and provide past and future medical treatment for the claimant’s physical and psychological complaints.  On Appeal, the Commission relied upon the ALJ’s credibility determinations and affirmed the ALJ’s decision and Award with a supplemental opinion.

35-Year-Old Claimant with GED PTD After Spinal Fusion, Despite Surveillance Video, Because Claimant Can Be Unemployable Without Being Completely Inactive

Jackson County Missouri vs. Earnest, Case No. WD81083 (Mo. App. 2018)

FACTS:  On March 11, 2014, the 35-year-old claimant sustained a compression fracture at T7 when a tree fell on him.  He underwent an authorized ORIF and fusion of the thoracic spine along with an associated rib resection for bone graft and additional procedures.  He also underwent pain management with Dr. Pang, who placed him at MMI, assessed 15% PPD of the body referable to the thoracic spine, and recommended follow up with his personal doctor for continued pain management.

Dr. Stuckmeyer evaluated the claimant at his attorney’s request and recommended several permanent restrictions, including no prolonged standing or walking and the ability to change positions frequently throughout the day.  Dr. Stuckmeyer recommended evaluation by a vocational expert, who opined the claimant was unemployable because, although positions might be available within the claimant’s work restrictions, these would be for a highly skilled individual in an office setting, and the claimant would not qualify.

At a Hearing, the claimant testified that on good days he could perform some chores and yardwork, but he also testified that he had difficulty sleeping and took up to five naps per day, and he had trouble concentrating due to pain and had no experience using computers. The employer presented surveillance video of the claimant performing various household chores, including mowing his lawn, pushing a broom, and hosing down his driveway.  The ALJ found the claimant’s testimony credible and held that he was PTD as a result of his last injury alone.  The ALJ reasoned that the claimant could still be PTD despite being able to perform some type of work on an ongoing basis, and the activities shown on the video did not translate to the ability to perform sustained employment as they were “mere snapshots in time.”  The ALJ also noted that even Dr. Pang, the employer’s doctor, reviewed the video and opined that “a one-time surveillance video of one activity is not always reflective of one’s capability to hold a full-time job.”  On Appeal, the Commission affirmed the ALJ’s decision and Award.

HOLDING:  The Court affirmed the Commission’s decision and Award and found the employer responsible for PTD benefits.  The employer argued that the Commission’s finding was against the weight of the evidence because the claimant’s testimony was inconsistent regarding his ability to do yardwork.  However, the Court found that the ALJ and Commission found the claimant’s testimony regarding his capabilities to be credible, and his testimony was supported by medical evidence.

Fund Liable For PTD Because Claimant Unemployable Due To Combination of Primary Injury, Prior Injuries, Learning Disability, and Functional Illiteracy

Potts vs. State of Missouri, Fulton State Hospital and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-063860

The claimant, a 54-year-old laborer, was working for the employer on August 10, 2011 when he fell and sustained injuries to his low back and neck.  He underwent physical therapy and multiple injections but did not undergo surgery.  He returned to work with accommodations for 17 months before ultimately retiring.  The claimant also had significant pre-existing disabilities, including frostbite injuries to both feet, Type II diabetes with neuropathy, right knee pain, cervical DDD, and prior low back complaints.  He also had a significant pre-existing learning disability and was functionally illiterate.  He had the equivalent of a fourth-grade education and was admitted to Fulton State Hospital as a child for severe behavioral problems.

At a Hearing, the ALJ found the employer was responsible for 25% PPD of the body, 5% of which was referable to the neck and 20% was referable to the low back.  However, the ALJ found the claimant was not PTD. 

The claimant appealed, and the Fund argued that it was not responsible for PTD benefits because the claimant’s pre-existing conditions were not a hindrance or obstacle to his employment because he had successful worked with those conditions for over 30 years.  The Commission held that the claimant’s learning disabilities and functional illiteracy qualified as a pre-existing permanent disability, and it also held that the claimant’s preexisting physical and psychological conditions were a hindrance or obstacle to his employment because they had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of the pre-existing conditions. The Commission also held that the claimant was PTD as a result of his primary work injury combined with his preexisting conditions because, although he could physically perform some jobs, his prior academic history and illiteracy would significantly limit his ability to obtain and perform those jobs.  It also reasoned that the claimant was only able to continue working for 17 months after his injury due to an informal arrangement with his long-time employer, and a new employer would be unlikely to provide the same accommodations to a newly hired employee.  Therefore, the Commission held that the Fund was responsible for paying PTD benefits.

Fund Liable for PTD Benefits Due to Combination Claimant’s Pre-Existing Physical and Psychiatric Disabilities and Primary Injury

Kalajdzic vs. St. Louis Children’s Hospital and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-063341

The claimant, a 47-year-old nurse’s aide, was changing the sheets on a bed that was awkwardly positioned, which required her to reach across the bed to lift the mattress, when she sustained an injury to her low back.  Dr. Robson performed a three-level lumbar fusion, and the claimant also required mental health treatment after her work injury because she became depressed and heard voices.  The claimant had a history of prior low back issues and lumbar injections, most recently in December 2011, two months prior to her date of injury.  She also had a history of depression and anxiety and had previously been prescribed Xanax.

Dr. Volarich evaluated the claimant on behalf of her attorney and recommended permanent restrictions, including changing positions frequently to maximize comfort and resting as needed, and he opined she was PTD as a result of a combination of the primary injury and her pre-existing medical conditions.  Mr. England, a vocational expert, opined the claimant was unemployable as a result of Dr. Volarich’s permanent restrictions, her anxiety and sleep deprivation, and her need to lie down throughout the day.

At a Hearing, the ALJ denied compensation and held that the injury did not arise out of and in the course and scope of employment, because the claimant failed to show a causal connection between her injury and work.

On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission found the claimant’s testimony credible and held that she sustained an injury by accident when she attempted to lift a mattress on a hospital bed that was in an awkward position.  The Commission found that the claimant sustained 25% PPD of the body referable to her low back and 10% PPD of the body referable to a psychiatric disability as a result of her primary injury and was PTD as a result of the combination of her primary injury and pre-existing disabilities.  Therefore, the Fund was responsible for PTD benefits, and the employer was ordered to pay past medical expenses and provide future medical treatment.

Simon Law Group, P.C.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2017 – December 2017

Injury Not Compensable Because Claimant Made Multiple Inconsistent Statements of How and When Injury Occurred and Failed to Establish Injury Was Caused by a Compensable Accident

Saine vs. Pepsi Beverages Company, Injury No. 15-069886

The claimant alleged he sustained an injury to his neck and right arm while driving a tractor trailer in August 2015.  His first Claim for Compensation alleged an injury to his right shoulder and arm that occurred on August 31, 2015.  He subsequently amended the claim three times to allege injury to his neck, changed the date of injury to August 25, 2015, and then changed the date of injury back to August 31, 2015.  The claimant testified at a Hearing that the injury actually occurred on August 15, 2015. 

The claimant also made inconsistent statements regarding how the injury occurred.  He told a nurse at work that his right shoulder pain was caused by tight steering in his work truck.  He went on his own on September 10, 2015 to the hospital and reported right shoulder pain following a lifting injury.  On May 3, 2016, he reported to Dr. Rutz that he sustained an injury by repeatedly backing into loading docks and twisting his body when unloading products off of his truck and then his symptoms became irritated when a car cut in front of him and he tried to avoid the collision.

At a Hearing, the ALJ found that the claimant failed to establish that his complaints were a result of an injury that he sustained as a result of an accident arising out of and in the course of his employment.  The Judge noted that an accident is an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by aspecific event during a single work shift.  The ALJ noted that the claimant made multiple inconsistent statements regarding how and when the injury occurred and there was no relevant objective evidence of an issue with his work truck.  Also, the employer’s experts testified that none of the three possible versions given by the claimant of how his injury occurred would have caused his injury.  Therefore, the ALJ found there was no single identifiable traumatic event or unusual strain that occurred during single work shift, and the claimant failed to show that his injury was caused by a compensable accident.  On appeal, the Commission affirmed the ALJ’s decision and Award denying benefits. 

Appeal Transferred to Missouri Supreme Court to Determine Whether Applying Mesothelioma Statute to Claim with Last Exposure in 1990 Violates Missouri Constitution

E.J. Cody Company, Inc. vs. Casey, Case No. WD80470 consolidated with WD80481 and WD80525 (Mo. App. 2017)

FACTS:  The claimant worked as a flooring installer applying vinyl asbestos tile from 1984 until April 1990, when he retired.  He was diagnosed with mesothelioma on October 14, 2014 and died from the same on October 11, 2015.  His diagnosis and the fact that mesothelioma was the prevailing cause of the claimant’s death was not at issue.  The insurer provided the employer with workers’ compensation insurance with a mesothelioma endorsement, which was in effect as of the date the claimant was diagnosed with mesothelioma. 

At a Hearing, the insurer argued that it was not responsible for paying benefits because the claimant was exposed to asbestos prior to the beginning of its insurance coverage and the responsible party was the insurer in 1990.  However, the ALJ found that under the statute dealing with mesothelioma benefits, the date of diagnosis determines what insurer is liable for benefits under the statute, and reasoned that the provision in the insurance policy stating that the exposure must occur during the policy period is essentially voided by the endorsement, which provided coverage for mesothelioma benefits.  On Appeal, the Commission modified the Award but ultimately agreed that the insurer was responsible for paying benefits. The Commission agreed with the ALJ that the insurer’s mesothelioma endorsement applied to this claim because the date of diagnosis was after the amendments, which went into effect on January 1, 2014, and the claimant was diagnosed with mesothelioma during the insurer’s policy.

On Appeal, both the insurer and employer argued that application of the new mesothelioma statute to the present case violated the Missouri Constitution’s prohibition against retrospective laws because the employee’s last exposure to the hazard predated the statute’s effective date of January 1, 2014. 

HOLDING:  The Missouri Court of Appeals held that the Missouri Supreme Court had exclusive jurisdiction over this appeal in light of the constitutional issues raised, and it transferred the appeal to the Missouri Supreme Court. 

Boatright is the Employer Because He Had Authority to Hire/Fire, Assign Driving Routes, and Determine Payment, and FFE is a For Hire Motor Carrier

Parr vs. Bobby Boatright and Frozen Food Express a/k/a FFE Transportation Services, Inc., Injury No. 08-124297

Boatright was a sole proprietor who owned trucks that he leased to FFE to transport frozen or refrigerated food between Chicago and Dallas.  The contract provided that Boatright would supply drivers at his own expense who met requirements imposed by FFE’s liability insurance carrier and Federal Law.  Boatright did the hiring and firing and paid the drivers.  FFE did not control the routes the drivers took to deliver or pick up loads, did not determine which driver was assigned to the route, and did not control the amount or frequency of payment to any driver.  On February 16, 2008, the claimant was driving his assigned route as an OTR truck driver when he was involved in a motor vehicle accident in Missouri.

At the Hearing, the issue was the claimant’s employer.  The ALJ found that Boatright was the employer, not FFE, and noted that Boatright had the right to hire and fire, determine the amount and frequency of payment, assign routes, provide the trucks and maintain the same.  Additionally, because FFE was a for-hire motor carrier operating within a commercial zone, it was not a statutory employer of claimant under workers’ compensation law.  With respect to permanency, the ALJ did not find Boatright responsible for the same because the claimant did not hit his head or lose consciousness in the accident and did not seek treatment for three weeks after the accident, the damage to the vehicle was minimal, and there was no evidence suggesting that the work accident was the prevailing factor in causing any medical condition related to his current complaints.  The ALJ denied payment of PTD, TTD, PPD, or future medical.  On Appeal, the Commission affirmed the ALJ’s Decision and Award.

Editor’s Note: At the Hearing, the ALJ also found that under strict construction, 287.210.3 and 287.210.7 only apply to physician testimony.  Therefore, certified treatment records that are not offered as a substitute for an expert’s testimony would still be admissible, even if not provided to all parties at least seven days in advance of a Hearing.

Court Affirms Commission’s Decision and Award Finding that Claimant’s Work Conditions Were Not the Prevailing Cause of His Heart Attack and Death

White vs. ConAgra Packaged Foods LLC, Case No. SC96041 (Mo. Sup. Ct. 2017)

FACTS:  The claimant worked as a machinist before he died on June 30, 2012 while at work.  His autopsy showed severe coronary artery disease, and his death certificate listed his cause of death as acute myocardial infarction and heart failure.  His surviving spouse filed for death benefits under workers’ compensation.  Testimony established that the claimant operated a lathe in a machine shop on the day of his death and the weather was extremely hot.  Dr. Schuman testified on behalf of the surviving spouse and opined that the claimant’s work was the prevailing factor in causing his death because the extreme heat combined with the claimant’s physically demanding work duties and leg brace placed added stress on his already strained heart.  Dr. Farrar testified on behalf of the employer that the claimant’s death was caused by his coronary artery disease and other heart conditions and was not related to his work activities.

At a Hearing, the ALJ found that the claimant’s surviving spouse failed to sustain her burden of proof that the claimant sustained an accident or occupational disease, and the claim was therefore not compensable.  On Appeal, the Commission affirmed the ALJ’s Award with a supplemental opinion.  The Commission found that the claimant did suffer an accident because his death at work was an unexpected traumatic event.  However, the Commission found there was no persuasive expert testimony on the issue of medical causation and ruled that the claimant’s work was not the prevailing factor in causing his heart attack or death.

HOLDING:  The claimant’s surviving spouse appealed.  The Court first held that the claimant suffered an accident, which was the unusual strain placed on him due to the extraordinary heat, and this accident resulted in an injury, which was his death.  The Court held that the next step was to determine whether the unusual strain was theprevailing factor in causing the claimant’s heart attack and death.  The Court held that the Commission properly applied the prevailing factor standard, deferred to the Commission’s findings of fact with respect to the persuasiveness of expert medical testimony, and affirmed the Commission’s decision and Award.

Employer Responsible for Unauthorized Treatment Claimant Underwent During the Four Weeks Between the Date She Filed a Claim Demanding Additional Treatment and the Date She Was Evaluated by Employer’s Doctor

Boykins-Walls vs. Normandy School District, Injury No. 13-098181

The claimant, a substitute teacher, sustained an injury to her bilateral knees on December 6, 2013, when she slipped and fell on ice while walking between buildings.  She treated conservatively for contusions and underwent physical therapy and was released from care on December 26, 2013.  She proceeded to treat on her own with Dr. Droege and then filed a Claim for Compensation demanding additional treatment on January 15, 2014.  The employer directed her to Dr. Milne, and she was seen on February 10, 2014, just four weeks later.  She was placed at MMI on April 1, 2014. 

At a Hearing, the ALJ found that although the claimant sustained an accident, she did not sustain any permanent disability from the same.  The ALJ denied all benefits.

On appeal, the Commission modified the ALJ’s Award and decision with respect to unpaid past medical expenses.  The Commission found that the claimant was not entitled to reimbursement for medical bills for any treatment she received after the employer directed her to Dr. Milne for additional treatment.  However, the Commission did award past medical expenses for the treatment she underwent between the time she filed her Claim on January 15, 2014 and when she was seen by Dr. Milne on February 10, 2014.  The Commission reasoned that the employer was notified of the claimant’s need for additional medical treatment when she filed a Claim demanding the same.  It also reasoned that the treatment provided by Dr. Droege during that period was reasonable and necessary and was consistent with the type of treatment that both of the authorized treating physicians recommended and ultimately provided.  Therefore, the claimant was entitled to compensation in the amount of $783.00, referable to past medical expenses.  Notably, the Commission opined that brief delays in scheduling appointments, other than in emergency situations, do not render an employer/insurer liable for unauthorized care. 

Editor’s Note:  Therefore, it appears the Commission is suggesting that four weeks was too long to wait to schedule the claimant for a follow up evaluation.

Employer Liable for PTD Because Claimant Was Sleep Deprived Due to Pain and Had to Nap Several Times Per Day, Despite Fact that He Slept At Least Eight Hours Per Night and Did Not Take Any Medications to Attempt to Alleviate His Sleep Issues

Wann vs. The Lawrence Group, Injury No. 12-090608

The claimant, a 59-year-old carpenter and high school graduate, developed bilateral upper extremity pain, numbness, and tingling in November 2012.  He underwent an arthroscopic surgery on the right shoulder on July 22, 2013, which was performed by Dr. Ritchie, who placed him at MMI, issued permanent lifting restrictions, and assessed 20% PPD of the right shoulder.  The claimant never returned to work after surgery.  Two years later, the employer directed the claimant back to Dr. Ritchie, who also diagnosed work-related chronic left shoulder impingement and probable labral pathology, bilateral carpal tunnel syndrome, and left elbow mild ulnar nerve neuropathy and opined the claimant would require carpal tunnel releases in the future.

The claimant was evaluated by Dr. Volarich, who noted that he awakened several times per night due to shoulder pain, although he was not taking any pain medications to alleviate the same, and the doctor recommended a vocational evaluation and opined that if the claimant were PTD, it was due to the primary injury alone.  The claimant’s vocational expert, Mr. England, opined that he was PTD as a result of his primary injury alone.  He noted that if claimant got an adequate full night’s sleep, he would be a candidate for some jobs, but he noted the claimant has sleep disturbance and takes no medication to help him sleep.  The employer’s vocational expert, Ms. Abrams, opined the claimant was able to work in the open labor market, but she admitted that if he did have to take several naps during the day, he may not be able to find and maintain a job.

At a Hearing, the claimant testified that he had sleep difficulties, although he slept over eight hours per night.  He testified that he takes Ibuprofen a few times per month but no other pain medication.  He had not worked since January 2013 and had not looked for other employment besides one position at a family member’s company.  The ALJ awarded PPD at the level of the bilateral shoulders and wrists but found that the claimant was not PTD.  The ALJ noted that although he was not able to return to his former job as a carpenter, he had no ambulation problems, no need for narcotic pain medication, and was able to perform self-care.  Although he had sleep deficits, he was making no attempt to alleviate the same, and his sleep issues were not noted in his treatment records, only in the expert reports.  The ALJ also noted that the claimant was articulate and had transferable skills and no memory problems.

On appeal, the Commission opined it was plausible that someone with bilateral shoulder injuries may have difficulty sleeping comfortably, and this was noted in Dr. Volarich’s report.  It found Dr. Volarich’s opinion most persuasive and disagreed with the ALJ regarding the claimant’s credibility in light of the opinions of Dr. Volarich and Mr. England.  The Commission held that the claimant’s sleep difficulties rendered him PTD as a result of his primary injury alone and found the employer responsible for PTD and future medical.

Editor’s Note:  It does not appear that the Commission addressed the ALJ’s rationale that the claimant made no efforts to alleviate his sleep issues.

Employer Responsible for PTD After Claimant Sustained Multiple Fractures to Bilateral Lower Extremities After Falling 25 feet, Which Required Him to Spontaneously Recline Throughout the Day and Caused Sleep and Concentration Difficulties

Sanchez-Rivera vs. Jorge Calderon Construction and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-059076

The claimant, a 34-year-old construction worker, was working for employer on July 16, 2010, at which time he fell 25 feet from a ladder.  Dr. Horton performed an ORIF of the bilateral tibial fractures on August 9, 2010 and two subsequent surgeries.  The claimant’s lumbar injuries were treated non-operatively.  He was placed at MMI on August 18, 2011 but was restricted to seated work only.  The claimant continues to undergo regular pain management.  He did not return to work after his accident.  He testified that he has to lie down throughout the day due to his pain and is unable to support his weight on his feet, sleep overnight, or concentrate due to his lack of sleep.  He also now uses a cane. 

At a Hearing, the claimant testified that he completed the seventh grade in Mexico and never returned to school, and he understands and speaks only a little English.  He did not have a driver’s license or any computer or typing skills.

The claimant was evaluated by Dr. Koprivica, who opined he was PTD as a result of his last injury alone. He recommended permanent restrictions of no working on uneven surfaces, climbing activities, standing and walking for less than 20 minutes only, sitting when necessary, and the ability to change positions frequently when needed.  Mr. Dreiling, a vocational rehabilitation specialist, evaluated the claimant at the claimant’s attorney’s request, and he opined the claimant was not a candidate for any type of formal academic or vocational retraining because English was his second language and he did not have a high school degree or GED and no transferable job skills.  He also opined that he would find the claimant PTD as a result of his last injury alone due to his need to spontaneously lie down throughout the day, even if his primary language was English.

At a Hearing, the ALJ found that the claimant was PTD because he testified credibly regarding his need to lie down throughout the day, his use of narcotic pain medication, and his lack of concentration and sleep. On appeal, the Commission affirmed the ALJ’s decision and Award.

Fund Liable for PTD Because Prior Low Back Injury Caused Primary Low Back Injury to be More Severe Than Otherwise Would Have Been

Branham vs. Schrimpf Landscaping, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury Number 06-077118

The claimant, a man of unspecified age with a GED, was working for the employer driving a tanker truck and operating a seed sprayer when he sustained an injury to his low back on July 17, 2006.  He underwent surgery to repair an annular tear on May 10, 2007.  He subsequently underwent two additional low back surgeries, including a three-level fusion on January 24, 2011 as well as a surgery to remove bone graft material from the stomach wall on February 1, 2012.  The claimant has not worked since 2010. 

The claimant previously sustained a low back injury in 2000 while working for a roofing company, after which he underwent surgery at L5-S1 and resolved his claim for 16.1% PPD of the body referable to the low back.  He was unable to continue working as a roofer following his injury due to lifting limits and ongoing back and leg pain. 

Dr. Volarich evaluated the claimant and opined that his prior low back injury was a hindrance to his employment and he was more disabled as a result of a combination of his two injuries because his lumbar spine was weakened after the first injury, which caused his 2006 injury to be more severe than it otherwise would have been.  Dr. Volarich opined the claimant was PTD as a result of a combination of his 2000 and 2006 injuries.  Vocational experts Mr. Weimholt and Mr. Cordray agreed that the claimant was unemployable as a result of a combination of both low back injuries.  Mr. Hughes was the only rehabilitation counselor to opine that the claimant was able to continue working, although he noted that if the claimant were found PTD it would be as a result of both of his low back injuries.

At a hearing, the ALJ found the employer responsible for 45% PPD of the body referable to the low back as a result of the 2006 work injury as well as future medical.  The ALJ also found the claimant was PTD as a result of a combination of both his low back injuries.  On Appeal, the Commission affirmed the ALJ’s decision and Award with respect to permanency and future medical, but they modified the Award with respect to the claimant’s TTD and PTD rate.

Sanderson vs. Dolgen Corp., Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-108286

The claimant, a 65-year-old warehouse worker, sustained an injury to his back on October 27, 2009 while working for the employer.  He treated on his own and underwent physical therapy and an injection. 

The claimant sustained a prior low back injury in 1998, which was settled for 11% PPD of the body referable to the lumbar spine.  Dr. Levy evaluated the claimant and opined that he had 30% PPD to the body in 1998.  It is not clear whether the claimant underwent surgery for the 1998 injury, but he testified he was forced to leave his job in security because he could no longer perform the physically demanding job duties.  He also testified that he was unable to return to work for two years and continued to have intermittent low back pain leading up to his primary injury.

The claimant was evaluated by Dr. Volarich, who testified that he sustained 35% PPD to the body as a result of his primary injury and was PTD as a result of a combination of his 1998 and 2009 back injuries.  Vocational experts Mr. Weimholt and Mr. Cordray agreed with Dr. Volarich.  Mr. England testified on behalf of the Fund and opined that he was employable, although he agreed that the 1998 injury was a hindrance to his employment.

At a hearing, the ALJ found the claimant PTD as a result of a combination of his pre-existing low back injury and his primary injury and ordered the Fund to pay PTD benefits.  The ALJ also found the employer responsible for 20% PPD of the body, past medical expenses, and future medical care.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Fund Not Liable for PTD Benefits Because Claimant PTD As a Result of Her Pre-Existing, Non-Work-Related Low Back Condition Considered Alone

Glasco vs. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD80186 (Mo. App. 2017)

FACTS:  On April 27, 2011, the claimant fell at work and injured her left knee and was diagnosed with a strain.  She treated with the employer’s doctors and ultimately resolved her claim against the employer for 15% PPD of the knee. 

The claimant had a significant pre-existing and non-work-related condition in her low back, for which she treated with Dr. Drisko.  She underwent multiple back surgeries prior to 2008 and then a fusion.  She was diagnosed with failed back syndrome and was referred to a pain specialist and psychiatrist.  She was subsequently diagnosed with “Transition Syndrome” after she developed stenosis over the site of her prior surgery.  She underwent additional injections.  Dr. Drisko took her off work in May 2010 for her low back condition, and she did not return to work until April 12, 2011, at which time she returned to work with restrictions.  She then only worked two weeks for the employer prior to sustaining her primary injury.

The claimant filed against the Fund for PTD benefits.  Dr. Zimmerman, the claimant’s expert, opined she was PTD as a result of a combination of her primary injury and pre-existing conditions.  However, he did not review all of the claimant’s prior medical records and did not have a complete history of her prior treatment and disability.  Mr. Dreiling also testified on behalf of the claimant, and on cross-examination, he admitted that even assuming that her left knee was fine, she would be virtually unemployable due to her back condition.  Dr. Drisko testified that she was PTD due to her progressive back problems alone.

At a Hearing, the ALJ found the Fund liable for PTD based on the combination of the claimant’s primary injury and pre-existing disabilities.  On Appeal, the Commission reversed and found that the Fund was not liable because the claimant was PTD as a result of her pre-existing low back condition, considered alone.

HOLDING:  The claimant appealed to the Court, which affirmed the Commission’s Award and Decision to deny benefits against the Fund.  It held that questions of employability and when a claimant becomes permanently and totally disabled are issues of fact within the province of the Commission, and it deferred to the Commission’s factual findings in this case.

Fund Liable for PTD Because Claimant Unemployable Due to Primary Injury Combined with Pre-Existing Right Leg Injury, Anxiety/Depression, and Need to Lie Down Throughout Day

Johnson vs. Direct TV Home Services and Treasurer of Missouri As Custodian of Second Injury Fund, Injury No. 12-100647

The claimant, a 48-year-old satellite technician, did not graduate high school or obtain a GED.  On December 19, 2012, he fell in a customer’s yard and sustained injuries to his right foot, right buttock, and low back.  He underwent injections, and Dr. Rahman ultimately performed a microdiscectomy at L5-S1.  He was released from treatment on December 17, 2013.

The claimant had pre-existing injuries.  When he was two years old, he severed the muscles in his right leg below his buttocks, which required surgery.  However, a nerve was nicked and resulted in paralysis of the right leg, which necessitated multiple additional surgeries and additional medical treatment over the next 10-12 years.  Due to this condition, he developed anxiety and began taking Xanax when he was 35.  His right leg never regained full function and mobility and he could not rotate his right ankle.  His pre-existing conditions affected his employment prior to 2012.  He was fired from a construction job because he was unable to climb on a roof without decking.  He also had to stand on cardboard or mats while working as a welder, worked slower, and took more breaks as a result of his pre-existing injuries.  He was not able to continue working as a truck driver after he began taking anti-anxiety medications.  He also had difficulty keeping his right foot on the gas pedal for extended periods of time due to his right leg and foot injury.  Even while working for the employer, he had trouble climbing on roofs and balancing on ladder rungs prior to his 2012 accident. 

The claimant’s attorney had him evaluated by Dr. Paul, who recommended permanent work restrictions, including no significant climbing, balancing, stooping, bending, kneeling, crouching, or crawling and that the claimant be able to lie down during the day.  He opined the claimant was PTD as a result of his work accident in combination with his pre-existing conditions.  Mr. Eldred, a vocational rehabilitation specialist, also opined that he was unemployable as a result of his work accident and pre-existing conditions.  He believed that the claimant’s need to lie down during the day would negate employment. 

At a Hearing, the ALJ found the clamant to be PTD as a result of his work accident in combination with his pre-existing disabilities and ordered the Fund to pay PTD.  The ALJ noted prior accommodations and limitations the claimant had as a result of his pre-existing disabilities for his 2012 work accident and also found the testimony of Dr. Paul and Mr. Eldred to be persuasive on the question of PTD.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Commission Decision Finding Fund Liable for PTD Benefits Supported by the Record Because Claimant’s Expert Testified He Was PTD and Employer’s Expert Testified He Had a Pre-Existing Disability

Barnes vs. Treasurer of Missouri as Custodian of Second Injury Fund and Park Express LLC, Case No. ED105508 (Mo. App. 2017)

FACTS:  The claimant worked for the employer, an airport parking and shuttle company, and on November 11, 2009, while changing a tire on his shuttle bus, he sustained an injury to his lower back.  He underwent injections and physical therapy and was released from care by Dr. Doll without restrictions.  The claimant subsequently treated on his own with Dr. Wilkey, who performed a two-level lumbar fusion at L4-5 and L5-S1.  He recommended permanent restrictions that included taking a break to recline for 15 minutes every two hours, ongoing narcotic pain medication, and possibly missing work up to twice a month.  The claimant had not returned to work since his 2011 surgery and was terminated by the employer when he was unable to return to work full duty.

The claimant suffered a prior low back injury in May 2000 and underwent surgery at L5-S1 in September 2000, including a right-sided laminectomy and discectomy.  He returned to work without permanent restrictions and settled that claim for 25% of the body referable to the lower back.

The claimant’s experts, Dr. Wilkey and Mr. Kaver, testified that the claimant was unemployable and PTD as a result of his 2009 work injury alone.  The employer’s expert, Dr. Lange, assessed 15% PPD of the body due to the 2009 injury and 25% PPD of the body from his prior injury in 2000.  Dr. Lange concluded that the claimant’s 2009 work accident was not the prevailing factor in causing his disability at L5-S1.  Rather, his prior injury in 2000 was the prevailing factor in causing his disability.

At a Hearing, the ALJ found the claimant PTD as a result of his last work injury alone.  On Appeal, the Commission modified the Award and found the Fund liable for PTD benefits as the claimant was PTD as a result of his last work injury in combination with his pre-existing low back injury.

HOLDING:  The Fund appealed and argued that the Commission substituted its own determination of medical causation, which was unsupported by medical expert testimony because there was no single medical expert that testified that the claimant was PTD as a result of a combination of primary injury and pre-existing disabilities.  The Court found that the Commission’s decision was supported by the record because the claimant’s experts testified that the claimant was permanently and totally disabled, and the employer’s expert testified that there was pre-existing permanent disability to the claimant’s low back.  It held that there is no requirement that a single expert’s testimony wholly support the Commission’s determinations of both causation and the nature and extent of disability.  The Court deferred to the Commission’s factual findings and affirmed the Commission’s decision and Award.

Claimant Not Entitled to Enhanced Benefits Under 287.200.4(3), Because Employer Went Out of Business More Than Fifteen Years Prior to When the Statute Became Effective on January 1, 2014 and Could Not Have Elected to Accept Mesothelioma Liability

Hegger (Deceased) vs. Valley Farm Dairy Co., Injury No. 14-103079

The claimant worked for the employer from 1968 until 1984, during which time he was exposed to asbestos.  The employer went out of business in 1998.  The claimant worked for subsequent employers, but he credibly testified he was not exposed to asbestos during that employment.  The claimant was diagnosed with mesothelioma in 2014 and died as a result on June 7, 2015.

At a Hearing, the ALJ addressed the sole issue of enhanced benefits under Section 287.200.4(3).  The ALJ found that the claimant was last exposed to asbestos while working for the employer, and his exposure was the prevailing factor for his diagnosis of mesothelioma which resulted in his death.  However, neither of the insurers who insured the employer during the claimant’s dates of employment were liable for paying enhanced benefits because the enhanced benefits provision did not go into effect until January 1, 2014.  The employer could not possibly have elected to be held liable for the same, because it went out of business in 1998.  Also, insuring its liability for occupational diseases in 1984 did not qualify as electing to be liable for enhanced benefits, which are separate and in addition to benefits otherwise payable for an occupational disease.  Therefore, the claimant was not entitled to enhanced benefits.  On Appeal, the Commission affirmed and adopted the ALJ’s decision and Award.

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2017 – September 2017

Intentionally Lighting Can of Flammable Adhesives on Fire Not Accident Because NotUnexpected Traumatic Event

Hedrick vs. Big O Tires, Case No. SD34556 (Mo. App. 2017)

FACTS:  The claimant worked as a general mechanic at Big O Tires.  Employees sometimes used open flames as part of their job duties, but only when safety methods were utilized to make sure that no flammable materials were nearby.  On his date of injury, the claimant intentionally lit a can of glue on fire while a coworker was holding it, which caused an explosion and serious injuries to both the coworker and himself.  He pointed to several previous instances of horseplay at work, including greasing a doorknob or snapping a rag.  He argued that lighting the can on fire was also horseplay, and since horseplay was prevalent at his workplace, the risk of injury arose out of and in the course and scope of employment.

At a Hearing, the ALJ denied his Claim, finding that the risk did not arise out of and in the course and scope of his employment, because lighting the can on fire was an intentional dangerous act, unlike the prior instances of horseplay, which were not life threatening.  On appeal, the Commission affirmed, holding that the mere presence of dangerous materials on the job site combined with the fact that coworkers occasionally engaged in mild horseplay was insufficient to show that these injuries arose out of and in the course and scope of employment. 

HELD:  On appeal, the Court affirmed the Commission’s decision.  It held that the claimant failed to prove that he sustained an accident under Workers’ Compensation Law.  However, it used a different rationale and noted that the dictionary defines an accident as an unexpected traumatic event.  The claimant could have expected or foreseen that igniting a can of flammable adhesives held by another person could produce injury, and therefore, although it was a traumatic event, it was notunexpected.  Therefore, it was not a compensable accident.

Court Affirms Commission Finding Injury Is Compensable Despite Multiple Contradicting Statements Because Unguarded Ramp Was Risk Source 

ConAgra Foods, Inc. vs. John Phillips, Case No. WD80535 (Mo. App. 2017) 

FACTS:  The claimant sustained an injury to his left hip on October 14, 2013 when he was walking up a ramp in the break room and turned to step off the ramp, at which time he fell to the floor.  According to medical reports from the claimant’s date of injury, he told both an EMT and a doctor that he fell because his leg gave out.  However, the Claim for Compensation alleged that he slipped and fell from the ramp.  He later testified at a Hearing that he did not remember how he fell but believed he may have caught his heel on the ramp.

At a Hearing, the employer pointed out the inconsistencies in the claimant’s reports about how he was injured.  The ALJ concluded that even if the claimant’s knee did give out, falling from a height of 3-5 inches put him at an increased risk for greater injury, and his injury therefore arose out of and in the course and scope of his employment and was compensable either way.  On appeal, the Commission agreed that the claimant’s reports as to how he fell varied, but it held that any inconsistencies were “understandable, considering the sudden and unexpected occurrence of the injury and the extreme pain caused by his left hip fracture, along with the effects of the medication administered.”

FINDINGS:  On appeal, the Court affirmed the Commission’s decision and Award.  It deferred to the Commission’s credibility determinations and also noted that it was unclear from the medical records whether the inconsistent statements regarding how the injury occurred were actually provided by the claimant or by other sources, such as EMS or witnesses to the accident.  Also, the Court agreed that the injury was compensable because it was caused by the ramp, which was a risk source to which the claimant was not equally exposed in his normal non-employment life.

Injury While Playing Basketball on Paid Break Compensable Because Risk Source Was Wearing Non-Slip Shoes on Blacktop and Employer Required Non-Slip Shoes

Gruender vs. Curators of the University of Missouri, Injury No. 14-043810

The claimant was a member of the custodial staff and was required to wear non-slip shoes while working.  She had paid breaks during which she was free to do whatever she wanted as long as she did not leave campus.  On June 23, 2014, the claimant played basketball on a black-top court on the employer’s property along with her team leader and another employee.  While playing basketball, her foot got stuck and she sustained an injury to her left foot.  Playing basketball had never been discouraged and was not against any expressed rules, and the claimant was being paid during the break when she was injured. 

At a Hearing, the employer argued that the claimant’s injury was not compensable because she was participating in a recreational activity which was not related to her job duties at the time she was injured.  The ALJ applied the Mutual Benefit Doctrine, which states that an injury is compensable if it occurs while an employee is engaging in an activity that benefits both the employer and employee, and playing basketball on a paid break is mutually beneficial.  Alternatively, the claimant was not exposed to the hazard of shooting hoops on a black-top basketball court while wearing slip resistant work shoes in her normal non-employment life.  Therefore, the injury was compensable anyway.  The ALJ also reasoned that the claimant did not forfeit her workers’ compensation benefits by engaging in a recreational activity or program, because under statute, benefits will not be forfeited if the employee was paid wages or travel expenses while participating in the activity. In this case, she was on a paid break while she was playing basketball. 

On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion.  The Commission held that a finding regarding the Mutual Benefit Doctrine was not necessary to find the claimant’s injury compensable because the risk of injury came from a hazard or risk to which she would not have been equally exposed outside of work in her normal non-employment life, specifically playing basketball on a black-top surface while wearing slip resistant shoes that the employer required her to wear.  The employer was ordered to pay PPD, TTD, and past medical expenses. 

[Editor’s Note: We are not sure why the Judge and Commission focused on the Mutual Benefit Doctrine and risk source analysis as, pursuant to Statute, if a claimant sustains an injury while participating in a paid recreational activity, the injury is compensable.] 

No Penalty Because Employer Failed to Show Violation Occurred In Conjunction With or Was Proximate Cause of Claimant’s Injuries

Franklin vs. AB Electrical, Inc., Injury No. 15-094035

On December 7, 2015, the claimant fell off of scaffolding and sustained injuries. A co-worker testified that on the morning of the accident, approximately 5-6 hours before the fall, he saw the claimant smoking marijuana.  The claimant’s post-accident drug test was positive for marijuana. The employer argued that the claimant forfeited his right to any benefits because he violated the employer’s rule or policy regarding the use of controlled drugs in the workplace, and that violation was the proximate cause of his injury. 

The claimant’s expert testified that the presence of THC in the claimant’s system would not necessarily indicate that he was impaired, or to what extent he was impaired, at the time of the accident.  The employer’s expert testified that the claimant was likely still impaired at the time of his accident because the effects of marijuana can last up to eight hours, and the accident occurred within that time frame. He opined that because the claimant was impaired at the time of his accident, his drug use was the proximate cause of his injuries. 

At a Hearing, the ALJ found that the claimant used drugs in violation of the employer’s policy.  He also noted that the claimant was the only person to have fallen off the scaffold and his fall occurred on the same day that his co-worker saw him take two hits off a marijuana pipe, and he ultimately found it was more likely true than not that his drug use was the proximate cause of his injuries and any workers’ compensation benefits were forfeited. 

On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission noted that pursuant to statute, there are two burdens for proving a drug violation penalty.  First, compensation shall be reduced by fifty percent if the injury was sustainedin conjunction with an employee’s drug use.  However, the employee forfeits his right to any compensation if his drug use was theproximate cause of the injury.  In this case, the Commission found that the employer did not meet its burden to prove that the claimant’s drug use occurred in conjunction with the accident or was the proximate cause of his injuries.  With respect to whether he ingested marijuana in conjunction with his injury, the Commission noted that the coworker made inconsistent statements regarding whether or when he saw the claimant smoke marijuana, and the urinalysis test did not show when he ingested marijuana or how much he ingested.  With respect to whether drug use was the proximate cause of his injuries, the Commission noted that the coworker testified that he saw no evidence that the claimant was intoxicated or impaired prior to his accident and he was not unsteady on his feet.  The Commission also noted that the employer’s expert’s opinion depended on a finding that the coworker did in fact see the claimant smoking that morningand he had a positive urinalysis test.  Therefore, it declined to apply a drug violation penalty and ordered the employer to pay PPD, past medical expenses, and TTD and provide additional treatment. 

[Editor’s Note: 287.120 was amended in 2017. The statute now states that if a claimant’s drug screen is administered within twenty-four hours of the accident/injury and is positive for a nonprescribed controlled substance, there is a rebuttable presumption that the accident/injury occurred in conjunction with the use of the controlled drug. This removes the burden from employers to prove that use of the controlled substance occurred in conjunction with the accident/injury.]

Appeal Dismissed Because Court Lacked Authority to Review Commission’s Temporary/Partial Award

Williams vs. Tyson Foods Inc. and Tyson Poultry, Inc., Case No. WD80267 (Mo. App. 2017)

FACTS:  The claimant sustained injuries to his feet as a result of his job duties. He filed a Claim, and an ALJ awarded a temporary/partial Award of TTD and medical treatment. The Commission affirmed the ALJ’s decision and Award and again acknowledged that it was a temporary/partial Award. The employer appealed the Commission’s decision.

HELD:  On appeal, the Court held that it lacked statutory authority to review the Award because it was temporary/partial. It identified two exceptions: Awards not made pursuant to 287.510, and when an employer alleges it is not liable for paying any compensation at all. However, the Court held that neither exception applied in this case because the temporary/partial award was made pursuant to 287.510 and the employer only contested the Commission’s finding of TTD and did not argue that it was not liable for paying any compensation at all.

Court Vacates Commission Decision. Claimant Must Show Actual Events Would Cause a Reasonable Highway Worker Extraordinary and Unusual Stress

Mantia vs. Missouri Department of Transportation and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. SC95885 (Mo. Sup. Ct. 2017)

FACTS:  The claimant was employed as a highway worker, and her duties involved assisting at scenes of motor vehicle accidents. She would respond to the worst of accidents, which often included fatalities, and she alleged psychiatric disability as a result of an occupational disease. Dr. Jovick, the claimant’s psychiatric expert, and Dr. Stillings, the employer/insurer’s psychiatric expert both agreed that her job duties were the prevailing factor in her psychiatric condition. Despite this, at a hearing, the ALJ denied compensability largely on the basis that the claimant’s co-workers were routinely exposed to the same experiences and therefore, she did not show that her work exposure was extraordinary and unusual as compared to other highway workers or similarly situated employees.

On appeal, the Commission reversed the ALJ’s decision and Award and essentially held that claimants need not compare themselves to similarly situated employees in order to satisfy the burden that their stress was extraordinary and unusual as measured by objective standards. The Commission stated that all cases requiring claimants to compare their stress to similarly situated employees pre-dated the 2005 amendments and the plain language of the Statute does not require such a comparison.

HELD:  On appeal, the Missouri Supreme Court reversed the Commission’s decision and held that the objective standard for determining whether the claimant’s stress was compensable was whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.  The Court found the claimant failed to present evidence that showed that actual work events that were the same or similar to that which she experienced would have caused extraordinary and unusual stress to a reasonable highway worker.  Therefore, this matter was vacated and remanded.

Employer Responsible for PTD Benefits, Despite Video Showing Claimant Performing Household Chores Such As Mowing and Pushing Broom

Earnest vs. Jackson County Missouri, Injury No. 14-016690

On March 11, 2014, the claimant was using a chainsaw to cut down a tree when the tree fell on him.  He was diagnosed with an acute compression fracture at T7 and underwent an authorized ORIF and fusion of the thoracic spine on April 1, 2014.  In relation to that procedure, he also underwent a resection of rib for bone graft and additional procedures.  The claimant continued to undergo authorized treatment with Dr. Pang, who diagnosed neuropathic pain due to the removal of the ribs and placed the claimant at MMI on June 5, 2015 with 15% PPD of the body referable to the thoracic spine.

Dr. Stuckmeyer evaluated the claimant at the claimant’s attorney’s request and recommended several permanent restrictions, including no prolonged standing or walking and the ability to change positions throughout the day for pain control.  He assessed 60% PPD of the body and recommended evaluation by a vocational expert, who opined the claimant was unemployable in the open labor market as a result of his work accident alone.

At a Hearing, the employer argued that the claimant was able to work and presented surveillance videos showing him performing various household chores, including mowing, pushing a broom, and using a hose.  The ALJ noted that a claimant may be PTD despite being able to perform some type of work on an ongoing basis and held that the claimant was PTD as a result of his work accident alone.  The employer was also ordered to provide future medical care and pay past medical expenses. On appeal, the Commission deferred to the ALJ’s credibility determinations and affirmed the decision and Award.

Employer Liable for PTD After Hernia Repair Resulted in Nerve Entrapment and Need to Recline Throughout Day, Despite History of Prior Hernias

Adams vs. City of Kansas City, Missouri, Injury No. 10-067514

The claimant worked for the City of Kansas City, and on July 28, 2010, he was attempting to turn off a rusted valve and sustained a left inguinal hernia.  Dr. Petelin surgically repaired the same on September 20, 2010 with a mesh implant.  The claimant continued to experience severe abdominal and groinal pain despite injections and physical therapy, and he was ultimately diagnosed with impingement of the ilioinguinal nerve.  He treated with Dr. Wheeler, who placed him at MMI without restrictions after he repeatedly missed appointments and physical therapy and assessed 3% PPD of the body.  He was noted to have a history of extensive hernia repairs as a small child as well as one in high school.

The claimant’s attorney had him evaluated by Dr. Parmet, who concluded that he was PTD as a result of the last injury alone and would likely need to recline throughout the day due to his pain. The claimant’s vocational expert, Ms. Titterington, noted the claimant had no transferrable work skills and limited academic skills and opined that, based on Dr. Parmet’s opinion, she would agree that he was not employable.  The employer’s vocational expert, Ms. Sprecker, opined the claimant was not PTD based on Dr. Wheeler’s report.

At a Hearing, an ALJ found that the claimant was PTD as a result of his primary injury alone.  He did not find Dr. Wheeler’s opinion credible and noted that he released the claimant from care without restrictions due to his poor attendance, which the ALJ opined could be explained by his uncontrolled diabetes, severe pain and depression, and lack of a driver’s license.  The ALJ found the claimant’s experts’ opinions more persuasive and ordered the employer to pay PTD benefits and provide future medical treatment.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant PTD and Unemployable Despite Working Part-Time at a Carwash For Five Years After Injury

Weber vs. Kraft Foods, Inc. and Second Injury Fund, Injury No. 08-124473

The claimant, a 65-year-old employee with a 12th grade education and an IQ of 68 was injured on October 26, 2008 when his back gave out.  Dr. Trecha performed a discectomy and fusion with instrumentation at L4-5.  He subsequently reported neck pain, and Dr. Trecha performed an anterior cervical discectomy and fusion from C3 to T1.  The claimant was terminated from his employment following his back surgery due to the restrictions placed by Dr. Trecha.  He subsequently obtained a part-time job working 4 hours per day, Monday through Friday, at a local carwash, where he greets and assists customers, supervises other workers, collects money, and deposits money in the bank.  The claimant previously resolved his claim against the employer.  At a Hearing against the Fund, the owner of the carwash where the claimant worked testified that he hired the claimant because he felt bad for him and he allowed the claimant to take breaks and leave the premises whenever he wanted.

The claimant had a significant prior history of back problems.  He sustained an injury in 1991 and ultimately underwent a surgical fusion and laminectomy and settled that claim for 22% PPD of the body.  In 1995, he suffered a right upper extremity injury and underwent surgery for a ruptured biceps, which was resolved for 10% PPD of the right elbow. 

Dr. Russell evaluated the claimant at his attorney’s request and found the claimant PTD as a result of the combination of his primary and pre-existing injuries.  The claimant’s vocational expert, Mr. Weinholt, agreed and noted he did not consider his work at the carwash to be full employment in the open labor market.  The Fund’s vocational expert testified that the claimant was not PTD because he worked part-time at the carwash for the past five years.

At a Hearing, the ALJ found that the claimant was not PTD in light of the fact that he maintained part-time employment at the carwash for the last five years and noted that employment in the open labor market can include part-time work. 

On appeal, the Commission held that although part-time employment can constitute employment in the open labor market, that was not the case here.  The Commission found that the claimant’s current employer hired him out of compassion and accommodates him by allowing him to come and go freely during his shift.  Therefore, the Fund was responsible for PTD benefits.

Employer Liable for PTD Benefits Because Claimant Must Frequently Sit and Elevate Leg Throughout Day   

Badock vs. R.P. Lumber, Injury No. 10-004961

On January 4, 2010, the claimant, a 54-year-old delivery driver/yard man was attempting to enter a truck when his left foot slipped, and he sustained a fracture to his fourth metatarsal.  He treated for the fracture, but he ultimately developed multiple pulmonary emboli and partial DVT in the left leg, which doctors opined was secondary to his foot injury, and he started blood thinners.  With respect to his DVT, he treated with Dr. Goldberg, who recommended sedentary work only.  His care was then transferred to Dr. Rao, who released him to return to work full duty in March 2011 and assessed 10-15% PPD of the body referable to his DVT.  However, the claimant continued to experience left foot complaints and also developed complaints in his right foot.  He treated on his own with Dr. Finnie, who diagnosed gout in his right foot and opined that he was no longer employable. 

The claimant was evaluated by Dr. Volarich in March 2012, who opined that the claimant was PTD as a result of his primary injury alone.  The claimant advised Mr. England that he had to sit with his leg elevated most of the day, and Mr. England opined that if this were true, he would be PTD.

At a Hearing, the ALJ noted the claimant’s lack of computer skills and the fact that he had never worked a sedentary job.  However, the ALJ found that the claimant was not PTD and noted the claimant’s testimony that he is able to sit in one place for over 90 minutes and would probably not prop his leg up the whole time.  Also, the claimant testified that he had a fairly active lifestyle and was able to drive and do chores around the house.  Although Dr. Finnie believed the claimant could not work as a result of a combination of his left and right foot problems, the ALJ noted that Dr. Wieman, the claimant’s personal doctor, diagnosed right foot problems in 2004, six years before his primary injury.  Therefore, the claimant failed to prove that he was permanently and totally disabled as a result of his primary injury.  The ALJ awarded 15% PPD of the left foot, 30% PPD of the thigh, and 10% PPD of the body along with TTD and future medical, to be paid by the employer. 

On appeal, the Commission modified the ALJ’s decision and Award and found that the claimant PTD as a result of his last injury alone.  The Commission noted his extensive history of labor intensive jobs, lack of computer skills, and the fact that he had never worked a sedentary job and is 54 years old.  Also, the claimant testified that if he is on his feet for an extended period, he has to sit down the entire next day due to swelling/pain.  Also, the Commission opined that even if the claimant does not have to elevate his leg all day every day, if he does so even a few days per week, he would be unemployable. 

Employer Responsible for PTD Because Claimant Must Now Recline and Alternate Between Sitting and Standing

Jones vs. Harley Davidson Motor Company and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-062102

The claimant was a 50-year-old high school graduate who previously worked in technical communication installation in the Army.  He sustained an injury to his low back on July 13, 2011 while working for his current employer.  Dr. Drisko performed surgery on the claimant’s low back, including a fusion with instrumentation and released him from care in October 2012.  He returned to Dr. Drisko on December 27, 2012, at which time the doctor opined he had developed sacroiliac dysfunction and recommended additional injections and physical therapy, which the claimant declined, and he was released from care again.

The claimant did have pre-existing disabilities.  He previously settled workers’ compensation claims for 22.8% of the right shoulder in 2003, 18% of the body referable to a left shoulder injury he sustained in 2007, and 29.5% of the right elbow in 2010.  He also previously underwent chiropractic treatment for his low back beginning in May 2011. 

The claimant’s experts, Dr. Koprovica, Dr. Stuckmeyer, and Mr. Cordray opined that the claimant would be unemployable and PTD due to his need to recline unpredictably throughout the day.  Dr. Koprivica and Mr. Cordray opined he was PTD as a result of his last injury alone.  Dr. Stuckmeyer opined he was PTD as a result of his primary injury and pre-existing disabilities. The employer’s expert, Dr. Drisko, also opined that the claimant may be PTD, and if so, it was as a result of the last injury alone.

The ALJ found the claimant PTD as a result of the last accident alone and ordered the employer to pay PTD benefits and leave future medical open.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Responsible for PTD Benefits Due to Need to Alternate Positions and Inability to Work Full Day Despite Only Conservative Treatment for Back

Barahona vs. Hilton Hotels/Hilton Worldwide, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-031709

The claimant is a 55-year-old immigrant from Honduras with an 8th grade education who never obtained a GED or received vocational training.  Her employment history included waitressing and housekeeping.  On April 24, 2011, the claimant was cleaning a table when she slipped and fell on a wet floor and injured her back and struck her head on the floor and lost consciousness.  Dr. Olive diagnosed a lumbar strain and placed the claimant at MMI with respect to her back. Dr. Miller performed surgery to repair a lateral meniscal tear, placed the claimant at MMI, and assessed 2% of the knee.  The claimant began receiving Social Security Disability benefits in 2012 or 2013.

The claimant also had prior injuries. She sustained two injuries to her right ankle as well as an injury to her low back in 2010, for which she treated conservatively. She also had a history of DDD in her lumbar spine.

Dr. Volarich examined the claimant at the request of her attorney, and opined that she could not be expected to work on a full-time basis in her prior jobs and was PTD as a result of her last injury alone.  Mr. Eldrid performed a vocational evaluation and noted her limited education, math and English skills, and lack of a driver’s license, but he opined she was PTD as a result of her last injury alone. Dr. Kitchens testified on behalf of the employer and opined that she did not sustain an injury to her back as a result of her April 24, 2011 work injury, despite the diagnoses made by other doctors that she sustained a low back sprain/strain.  Mr. England testified on behalf of the employer and opined that assuming Dr. Volarich’s restrictions and that she is unable to sustain a regular workday, then she would be unemployable.

At a Hearing before an ALJ, the claimant testified that she continues to take pain medication and has to alternate positions and has difficulty walking, sitting, or standing for more than five minutes. The ALJ found her testimony and Dr. Volarich’s opinion credible and held that she was PTD as a result of her primary injury alone.  Therefore, the employer was responsible for PTD benefits, future medical, past medical expenses, and TTD.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Claim Against Fund for Enhanced Benefits Denied Because Primary Injury Occurred After January 1, 2014

Cosby vs. Drake Carpentry, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-003644

The claimant sustained an injury to his left knee on January 22, 2014 when he was climbing down a ladder at work and the ladder slid out from underneath him, at which time he fell on his left knee and leg.  Dr. Kostman performed surgery.  The claimant subsequently settled his claim against the employer for an unspecified percentage of disability. 

The claimant filed against the Second Injury Fund for enhanced PPD benefits based on the combination of the disability resulting from his current work accident and pre-existing disabilities resulting from prior injuries to the claimant’s left knee, bilateral shoulders, and a hernia.  At a hearing, the ALJ held that the 2013 amendments to workers’ compensation statute prohibit the filing of claims against the Second Injury Fund for enhanced PPD benefits for injuries occurring after January 1, 2014.  Since the claimant’s injury occurred on January 22, 2014, his claim against the Second Injury Fund was denied. The claimant appealed to the Commission.

Interestingly, in a supplemental opinion, despite having no authority to determine constitutionality issues, the Commission opined that the 2013 Amendments to Workers’ Compensation statute are not unconstitutional.  Further, the Commission opined that in light of the changes in the 2013 Amendments, the employer/insurer are now responsible for any enhanced PPD benefits resulting from injuries when the primary injury occurs after January 1, 2014.

Obviously, this is mere dicta, and the employer/insurer are only responsible for PPD benefits resulting from the primary injury. Pursuant to 287.220.3(2), “[When] an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.”

Employer Not Require to Pay Claimant’s Attorney’s Fees Because It Was Reasonable for Employer to Rely On Medical Expert’s Opinion That Claimant Did Not Require Additional Treatment

Simpson vs. Columbia College, Injury No. 13-069045

On September 19, 2013, the claimant tripped and sustained an injury to her left knee.  She underwent authorized treatment with Dr. Leslie, who performed an ORIF and two additional surgeries after her wire broke and she developed chondromalacia. She subsequently underwent an MRI of the left knee, which showed severe chondromalacia of the patella and a torn medial meniscus, and she underwent a fourth left knee surgery.  After the fourth surgery, Dr. Leslie recommended injections.  However, the employer sent the claimant to Dr. Mall for an evaluation, who opined that the arthritis was pre-existing and the progression of her arthritis was not due to her injury.  He placed her at MMI.

At a Hearing before an ALJ, both Dr. Leslie and Dr. Volarich testified that the claimant required additional medical treatment and would require a future left total knee joint replacement. The claimant requested attorney’s fees and argued that the employer defended its claim on unreasonable grounds when it denied her medical treatment for a year and a half prior to the Hearing.  The ALJ found the testimony of Dr. Leslie and Dr. Volarich more persuasive than Dr. Mall, assessed 22.5% PPD of the left knee, and ordered the employer to provide future medical treatment.  However, the ALJ declined to award attorney’s fees and noted that the employer relied on the expert medical opinion of Dr. Mall, which was reasonable, despite the fact that the ALJ found Dr. Mall’s opinion unpersuasive. On appeal, the Commission affirmed the ALJ’s decision and Award, although it modified the Award to include 40% PPD of the left knee.

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2017 – June 2017

Parties Could Not Commute Award Under 287.530 Because Statute Requires Unusual Circumstances and Commission Lacked Authority Under 287.390

Dickemann vs. Costco Wholesale Corporation, Case No. ED105266 (Mo. App. 2017)

FACTS:  The claimant was injured at work in July 2010, and an Award of PTD benefits became final in April 2014.  In November 2016, the claimant and employer filed a joint motion with the Commission to commute the Award to a lump sum, which the Commission denied because it found that 287.530 only allows commutation under unusual circumstances, and no unusual circumstances were alleged in the parties’ motion. Also, the Commission found it did not have authority to commute the Award under 287.390 because there was no longer an open Claim in light of the fact that the Award was already finalized.

On appeal by both parties, the claimant argued the Commission was required to approve the motion to commute because it met the requirements of 287.390.1 and the Western District previously held that 287.530’s requirements only apply tocontested commutations.

HOLDING:  The Missouri Court of Appeals Eastern District affirmed the Commission’s decision to deny the motion and held that the Western District failed to correctly interpret Sections 287.390 and 287.530 using strict construction and 287.530 should actually be applied even where both parties voluntarily agreed to commute an Award.

Claimant Awarded PPD For Hearing Loss Due to Industrial Noise Exposure Despite Wearing Hearing Protection at Work and Exposure to Firearms Outside of Work

Abt vs. Mississippi Lime Company, Injury No. 13-074707

The claimant worked for 40 years in the plant, which was extremely noisy.  He testified that he religiously wore hearing protection while working until the late 1980’s, at which time they started using radios while operating cranes.  He subsequently stopped wearing hearing protection all the time in order to hear the radio, and he always kept the left side of the crane door open due to the extreme heat.  The employer performed annual hearing tests, which showed the claimant had mild to moderate hearing loss.  He retired on January 7, 2013 and testified he has been in a quiet environment ever since.  He testified he began having problems with his hearing 12 years prior to retiring and experienced humming/ringing in his ears and had difficulty understanding people when they talked to him. The claimant also testified he goes deer hunting once a year, previously went turkey hunting with a 12-gage shotgun until four years earlier, and also participates in 20 shooting matches per year using a 12-gage shotgun. He testified he has worn noise canceling headphones while shooting since the 1970’s and has always worn some type of hearing protection since he was in high school.

The claimant treated on his own with Dr. Mason, who diagnosed mild to moderate hearing loss in the left ear and bilateral Tinnitus, which he opined were both work related. Dr. Mason found it unsurprising that he had hearing loss only in the left ear in light of the fact that the right side of his head was in the interior of a crane away from the noise.

The employer sent the claimant to Dr. Mikulec, who noted that his hearing loss in his left ear did not significantly change until after he retired in 2013 and opined that his left-sided hearing loss was age-related or due to an underlying medical condition, and his Tinnitus was causally related to his non-occupational hearing loss.

At a Hearing, the ALJ held that the claimant’s left-sided hearing loss was work related, although his bilateral Tinnitus was not work related, and found that he sustained 3% PPD of the left ear due to exposure to occupational noise. On appeal, the Commission affirmed the ALJ’s decision and Award.

Injury Compensable When Claimant Re-Tore Rotator Cuff While Performing Mandatory Physical Capability Evaluation Prior to Returning to Work

Duncan vs. Allied Aviation, LLC, Injury No. 15-072795

After undergoing surgery to repair a non-work related right rotator cuff tear, the claimant presented to work for a physical capability evaluation (PCE) prior to returning to work. The PCE was mandatory before a worker could return to work, and it was scheduled and paid for by the employer. The claimant performed PCE on May 12, 2015, at which time he felt a pop in his right shoulder followed by immediate pain. An MRI of the right shoulder showed a large full thickness rotator cuff tear, which the claimant’s prior treating doctor, Dr. Lingenfelter, opined was a new injury.

At a Hearing, the claimant testified that he was ready to return to work prior to the PCE and had no limitations with respect to his right shoulder, was pain free, and was not taking any medications. He testified that following the PCE, he experiences significant pain and limited range of motion in his right shoulder.

Dr. Gilliam, who works for the company that performs the PCE, testified on behalf of the employer/insurer that the PCE testing machines are not capable of producing an injury. Also, the employer/insurer argued that the claimant=s injury did not arise out of and in the course and scope of his employment because he had not yet returned to work.

The ALJ found that the claimant=s injury arose out of and in the course of his employment because the test was mandatory under company policy, and declining to undergo the same could be grounds for termination. Also, the employer scheduled the PCE, instructed where and when to attend, and paid for the test. Also, the risk of injury sustained by the claimant during the PCE was not one to which he would have been equally exposed outside of employment in his normal nonemployment life. Therefore, the employer/insurer was ordered to provide medical care, including surgery. On appeal, the commission affirmed the ALJ=s decision and award.

Right Shoulder Injury Sustained While Wrestling Co-Worker Not-Compensable

Grayson vs. Thorne & Son Asphalt Paving Co., Injury No. 15-089660

The claimant sustained a right rotator cuff tear while wrestling a coworker at work, which required surgical repair. According to written statements from witnesses, the two employees voluntarily agreed to wrestle, and although workers would occasionally play around by knocking off hard hats or throwing water or pebbles at each other, such behavior was not permitted at work, and no one had wrestled at work prior to the date of injury.

At a Hearing, the ALJ noted that injuries that occur as a result of horseplay are generally not compensable unless the horseplay is so pervasive in the workplace that it becomes an incident of employment. Factors considered by the courts include the frequency of horseplay, the employer’s awareness of the activity, and whether or not the employer took affirmative steps to discourage the activity. The ALJ found that horseplay was clearly in violation of company policy in light of the fact that all employees were aware it was not allowed. Also, wrestling was substantially different than the types of horseplay usually engaged in by employees. Therefore, the claimant’s right shoulder injury was not compensable.

On appeal, the Commission affirmed the ALJs decision and Award with a supplemental opinion. The Commission found the claimant’s injury was not compensable because the risk source of the claimant’s injury was his own voluntary consent to horseplay, which was unrelated to his employment and to which he would have been equally exposed outside of work in his normal life.

Claimant’s Testimony Credible and Injury Compensable Despite Inconsistent Statements Regarding How Injury Occurred

Brown vs. Christian County, Missouri, Injury No. 14-063533

The claimant sustained injuries to the right wrist/hand and right shoulder when she fell. She was standing next to a rolling file cabinet immediately prior to her injury. At the hospital, the claimant advised that she thought she fell after she lost her footing and also that it felt like her ankle gave out. In a subsequent recorded statement, she stated that she lost her footing, did not believe she caught her foot on anything, and did not really know what happened. At the Hearing, the claimant testified that her foot became caught underneath the rolling filing cabinet in the gap between the cabinet and the floor, against the wheel, which caused her to fall when she turned.

The employer pointed out the claimant’s inconsistent statements regarding how she was injured. However, the ALJ found the claimant’s testimony credible and found that she fell after her foot became caught under the filing cabinet. The ALJ also found that the injury was in the course and scope of employment because the risk source of injury was not merely standing, walking, or turning, but was instead placing her left foot underneath the filing cabinet. Therefore, the injury was compensable. The ALJ also opined it was understandable that the claimant’s initial account of her accident was inaccurate or incomplete in light of the fact that she was in distress, taking pain medications, and was not sleeping well. The employer was responsible for PPD benefits with respect to the claimant’s right hand/wrist and right shoulder.

On appeal, the Commission affirmed the ALJ’s decision and Award and noted that the claimant’s Hearing testimony need not be discredited simply because she previously gave different, less detailed, or incomplete accounts of her accident.

Court Cannot Dismiss Wrongful Death Petition Based On Exclusivity Doctrine Until the Commission Determines the Injury is Compensable

Channel vs. Cintas Corporation No. 2, et al., Case No. WD79673 (Mo. App. 2017)

FACTS:  The claimant was employed as a delivery driver when he died of heat stroke.  His spouse filed a Claim for Compensation on his behalf and also filed a wrongful death petition against the claimant’s supervisor and the employer (Defendants).  The Defendants filed a Motion for Summary Judgment, arguing that under the exclusivity doctrine, Workers’ Compensation is the exclusive remedy for a work-related death or injury.  The Circuit Court agreed and granted summary judgment, finding the claimant’s death was the result of an accidental injury that could only be addressed by the Commission.

The claimant’s spouse appealed and argued that the Circuit Court did not have authority to determine whether his death was due to an accident under Workers’ Compensation law while the Workers’ Compensation Claim was still pending.

HOLDING:  The Appeals Court held that the Commission has exclusive jurisdiction to determine whether an employee’s injury resulted from an accident under Workers’ Compensation law and reversed the Circuit Court’s Decision and remanded the case with an Order to Stay Proceedings until the Claim was resolved.  The Commission held that it would be inappropriate for a court to enter summary judgment based on the exclusivity doctrine before the Commission decides the question of accidental injury, because granting summary judgment would prevent the claimant’s spouse from refiling her civil law suit if the Commission subsequently found that it was not an accidental injury.

Flu Vaccine Not Prevailing Cause of Claimant’s Congestive Heart Failure

Johnson vs. Barnes-Jewish West County Hospital, Injury No. 09-112063

The claimant’s doctor gave her a permanent exemption from receiving the flu vaccine.  However, the claimant was subsequently advised that the H1N1 vaccination was mandatory and underwent the same on December 7, 2009. She testified that she developed immediate numbness, tingling, and burning in her hands, and she developed flulike symptoms within one week after her shot. She testified that she had flare-ups of those symptoms, and in June 2010, a flare-up caused her to go to the emergency room, where she was diagnosed with cardiomegaly. Her condition progressively worsened, and she was ultimately diagnosed with congestive heart failure. She treated on her own and continues to take medications for her heart condition. She alleged that she developed her heart condition as a result of the mandatory H1N1 flu vaccination she received from the employer.

Both medical experts diagnosed the claimant with congestive heart failure. The claimant’s expert, Dr. Wolfson, testified that the H1N1 vaccine caused her cardiomyopathy and permanent disability. The employer’s expert, Dr. Schuman, testified that the claimant did not sustain a work injury and there is no known correlation between the vaccination and myocarditis. He also noted that the claimant did not seek medical treatment until six months after her vaccination.

At a Hearing, the ALJ found the claimant’s condition was not compensable because she failed to prove that the flu vaccine was the prevailing factor in causing her congestive heart failure. The ALJ found Dr. Schuman’s opinion more persuasive with respect to causation and noted the extensive gap between when the claimant received the vaccination and when she first sought treatment.  On appeal, the commission affirmed the ALJs decision and Award.

Driving School Bus Was Prevailing Factor Causing Bilateral Carpal Tunnel Syndrome

Lammert vs. Festus R-VI School District, Injury No. 16-006646

The claimant worked as a school bus driver for 11 years. Before 2015, she drove older buses, which required flipping a switch with her left hand, engaging an emergency break, and operating a manual door with her right hand at each stop. The steering wheels on the older buses vibrated continuously. In May 2015, the claimant began driving newer buses, which did not require her to manually engage an emergency break or open the door, were much easier to steer, and had much less vibration. She first developed symptoms in her hands/wrists in August or September 2015, months after she switched to the newer buses and after she was off work for approximately three months for summer break.

The claimant’s expert, Dr. Schlafly, testified that driving a school bus was the prevailing factor causing her bilateral carpal tunnel syndrome, which he believed developed over years of driving the older buses, although it did not manifest until after the change to newer buses in 2015. Dr. Crandall testified for the employer and opined her job duties were not hand intensive enough to cause carpal tunnel syndrome and noted there were no studies to suggest that carpal tunnel syndrome could be caused by driving a bus. Both doctors agreed that the claimant required bilateral carpal tunnel releases.

At a Hearing, the ALJ found Dr. Crandall’s testimony more persuasive and noted that although operating the old buses was hand intensive, her complaints did not begin until months after she started operating newer buses, and she developed carpal tunnel syndrome in her left hand, although she only operated the manual door on the older buses using her right hand. The ALJ also noted that Dr. Schlafly could not identify any scientific studies relating bilateral carpal tunnel syndrome to driving a bus. Instead, the ALJ opined that the claimant’s age, gender, obesity, hypertension, and menopause all predisposed her to carpal tunnel syndrome, and her condition was therefore not compensable.

On appeal, the Commission reversed the ALJs opinion and Award and found that Dr. Schlafly’s medical opinion was more persuasive than Dr. Crandall’s opinion. The Commission ordered the employer to pay past medical expenses and provide future medical care, including bilateral carpal tunnel releases.

Employer Responsible for PTD Benefits After Left Shoulder Injury

Maryville R-2 School District vs. Paydon and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD80070 (Mo. App. 2017)

On March 10, 2014, the claimant, a fifty-eight-year-old employee, helped a co-worker lift a soccer goal that weighed 200 pounds, at which time he injured his left shoulder.  He treated on his own with Dr. Atteberry, who diagnosed a rotator cuff tear and performed left shoulder surgery on May 12, 2014.  He subsequently filed a Claim against the employer for PTD benefits.

At a Hearing, the claimant testified that his left shoulder pain interrupts his sleep and he now has to lie down or recline multiple times during the day and sometimes has difficulty concentrating due to sleep deprivation.  Dr. Koprivica evaluated the claimant and issued permanent work restrictions as a result of the work injury alone, including the need to recline and take naps on an unpredictable basis during the work day. Both parties’ vocational experts agreed that, assuming Dr. Koprivica’s restrictions, the claimant would be unemployable in the open labor market.

The ALJ found the claimant’s testimony and Dr. Koprivica’s opinion credible, held that the claimant was PTD due to the 2014 work injury alone, and ordered the employer to pay PTD benefits and provide future medical treatment.  The Commission affirmed the ALJ’s decision.  On appeal, the Court of Appeals affirmed the Commission’s decision and Award.

Claimant PTD from Last Injury Alone Due to Combination of Left Upper Extremity Injury and Psychiatric Condition.

Bass vs. Board of Police Commissioners of Kansas City, Missouri, Injury No. 08-006183

On January 23, 2008, the claimant was exiting a police vehicle when she slipped and fell on ice and sustained an injury to her left elbow and shoulder. She underwent left shoulder surgery with Dr. Hood in 2008 followed by two more left shoulder surgeries performed by Dr. Satterlee in 2009 and 2011. Dr. Satterlee released her from care on December 22, 2011 with permanent restrictions.

The claimant also treated on her own with Dr. Logan for depression, which the doctor opined she developed as a result of her left upper extremity injury and was exacerbated by a significant degree of preexisting panic disorder. Mr. Cordray, a vocational expert, testified that the combination of her physical pain and psychological issues would prevent her from presenting to work on a consistent basis, which made her unemployable in the open labor market.

Dr. Hughes examined the claimant on the employer’s behalf and opined 80% of her psychological condition was unrelated to her work injury. Vocational expert Ms. Sprecker opined she was able to perform low stress jobs with minimal repetitive use of the left upper extremity and was not PTD.

At a Hearing, the ALJ found that the claimant was not PTD and assessed 45% PPD of the left shoulder, 10% of the left elbow, and 10% of the body referable to her psychiatric condition. The employer was not responsible for future medical care.

On appeal, the Commission found Dr. Logan and Mr. Cordray’s opinions most credible and held that the claimant was PTD due to a combination of her left upper extremity injury and psychiatric condition, which was associated with the left upper extremity condition. The employer was ordered to provide future medical care as well as PTD benefits.

Employer Responsible for PTD Benefits for Combination of Back Injury and Psychological Condition, Both Caused by Primary Injury

Pulliam vs. RPCS, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-056403

The claimant sustained a back injury when lifting a 70-pound box and ultimately underwent a spinal fusion from T7 – T9 and was given permanent work restrictions.  He alleged that he could not sit, walk, or stand longer than 15 minutes after his work injury and had difficulty sleeping and concentrating due to pain.  A surveillance video showed him driving, shopping, going up and down steps, walking without a cane, carrying bags, reaching, and bending.

Dr. Koprivica evaluated the claimant, recommended permanent restrictions including the ability to frequently change positions and use of a cane, and opined he was PTD as a result of his last injury alone.  Mr. Eldred performed a vocational evaluation, noted he had to alternate between sitting and standing, lie down during the day, and use a cane, and he opined the claimant was unemployable in the open labor market as a result of his last injury alone.

Dr. Halfaker performed a psychological evaluation at the claimant’s attorney’s request and noted symptom magnification, which he opined was the result of somatoform disorder associated with chronic pain syndrome rather than malingering. 

The treating physician, Dr. Corsolini, opined the claimant was not PTD.

At a Hearing, the ALJ found that the claimant sustained a herniated disc of the thoracic spine and a psychological injury as a result of his work accident. The ALJ reviewed the surveillance video and agreed that he was likely magnifying his symptoms, but the ALJ agreed with Dr. Halfaker that it was likely due to a psychological condition that resulted from his work injury. Therefore, the ALJ found the claimant was PTD as a result of his last injury alone and ordered the employer to pay PTD benefits. On appeal, the Commission affirmed the ALJs decision and Award.

Employer Responsible for PTD Benefits After Shoulder, Hip, and Back Injury

Gwin vs. Southeast Missouri Mental Health Center, Injury No. 10-011144

On February 17, 2010, the claimant was working for the employer as a Psych Aide and was helping to carry a resident on a litter/stretcher when the resident kicked her, causing her to fall to the floor, at which time she sustained injuries to her right shoulder, left hip, and lumbar spine. She treated through the employer with Dr. Wayne and Dr. Collard, who performed a right rotator cuff repair. She also received lumbar and hip injections.  After she was released from care, the claimant had continued shoulder, lumbar spine, and left hip pain and sought treatment on her own.  She continued to miss significant time from work and felt she could no longer work as a Psych Aide.  She applied for a sedentary position with the employer as a receptionist, but her application was denied and she was fired.

Dr. Wayne and Dr. Collard believed the claimant was not PTD, as did her treating doctor, Dr. Krause, and medical expert, Dr. Robson.  Dr. Musich evaluated the claimant at her attorney’s request and opined she was PTD as a result of her work injury.  Mr. Weimholt performed a vocational evaluation and also opined she was unemployeable due to her level of education and lack of transferable skills.  Mr. England performed a vocational evaluation and noted she did not exhibit observable pain behaviors and would make a good impression at an interview.  He believed she was employable given the permanent restrictions from Dr. Wayne, Dr. Collard, and Dr. Krause.

At a Hearing, the ALJ noted that the claimant attended some college and completed a program at Metro Business College, her employment history included supervisory duties, and she did not appear to have any problems with reading or math. The ALJ also noted she did not appear to be in a lot of pain during the Hearing, found the opinions of Dr. Wayne, Dr. Collard, Dr. Krause, and Dr. Robson more persuasive, and held that she was not PTD. The employer was responsible for PPD at the level of the body and right shoulder as well as future medical treatment.

On appeal, the Commission found the opinions of Dr. Musich and Mr. Weimholt more persuasive and noted that she missed a significant amount of work due to her injuries after being released from care and the employer terminated her employment rather than hiring her for a light-duty position as a receptionist. The Commission modified the ALJs decision and Award to include PTD benefits to be paid by the employer.

Fund Responsible for PTD Benefits After Primary Low Back Injury Combined With Pre-Existing Low Back Condition

Davis vs. Ozarks Coca-Cola/Dr. Pepper Bottling Company and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 07-050555

The claimant worked for the employer for 27 years delivering vending machines, which required a lot of heavy lifting, pushing, and pulling. He sustained an injury to his low back on June 6, 2007 when a 600-pound vending machine tipped backward onto him. He treated conservatively with multiple doctors both through the employer and on his own. He was diagnosed with lumbar pain with radiculopathy and aggravation of pre-existing lumbar DDD. Dr. Woodward, the authorized treating physician, placed him at MMI on May 26, 2009 with permanent restrictions. He did not undergo surgery. The employer subsequently fired the claimant because they could not accommodate his permanent restrictions, and he did not work thereafter.

With respect to the claimant’s pre-existing conditions, he had a prior back injury in June 2001, for which he underwent physical therapy. He also had a low back injury in June 2006 and testified he had ongoing low back pain but was able to continue working. The claimant also had a prior right shoulder injury and experienced ongoing shoulder pain and popping prior to his primary injury, and he had a prior left shoulder injury as a result of a motor vehicle accident.

The claimant’s experts, Dr. Bennoch and Dr. Mullins, opined he was PTD as a result of a combination of his primary injury and pre-existing degeneration in his lumbar spine. The claimant’s vocational expert, Mr. Swearingin, noted his 11^th grade education and age and opined he was not a candidate for vocational rehabilitation. He also noted the claimant’s extensive history working manual labor positions and opined he was unemployable as a result of pre-existing degeneration and the primary work injury.

The employer’s medical and vocational experts opined the claimant was not PTD.

At a Hearing, the ALJ found the claimant was PTD as a result of the combination of his pre-existing injuries, low back degeneration, and the primary injury. The ALJ found Dr. Bennoch’s opinion most persuasive with respect to permanency and assessed 20% PPD of the body referable to the primary injury. The Fund was liable for PTD benefits, and the employer was ordered to provide future medical care referable to the primary injury.  On appeal, the Commission affirmed the ALJ’s decision and Award.

2017 Changes to the Workers’ Compensation Statute

Please note this Bill has been signed by Gov. Greitens and goes into effect on August 28, 2017

Below is a description of the additions/changes to the Statute:

MMI

MMI is the point at which the claimant’s medical condition has stabilized and can no longer reasonably improve with additional medical care.

TTD/PTD

TTD/PTD benefits shall be paid throughout the rehabilitative process until the claimant reaches MMI unless benefits are terminated by the claimant’s return to work or as otherwise specified in the statute.

If a claimant voluntarily separates from employment with an employer and the employer had work available for the claimant that was within his or her medical restrictions imposed by the treating physician, neither TTD nor TPD benefits shall be payable

Drug Testing

If a claimant tests positive for a nonprescribed controlled drug or the metabolites of such drug there is a rebuttable presumption which may be rebutted by a preponderance of the evidence, that the tested drug was in the claimant’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the drug if:

·         the initial testing was administered within 24 hours of the accident or injury;

·         notice was given to the claimant of the test results within 14 calendar days of the insurer receiving actual notice of the positive test results;

·         the claimant was given an opportunity to perform a second test upon the original sample;AND

·         the positive test was confirmed by mass spectrometry using generally accepted medical

or forensic testing procedures

Settlements/Rating Reports

With respect to compromised settlements, after a claimant has reached MMI and the employer/insurer has received a rating from the authorized treating physician, a claimant shall have a period of 12 months from such date to obtain a rating from a physician of his or her own choosing.

Absent a finding of extenuating circumstances by an ALJ or the Commission, if after 12 months the claimant has not obtained a rating from a second physician, any compromise settlement entered into under this section shall be based upon the initial rating.

A finding of extenuating circumstances by an ALJ or the Commission shall require more than failure of the claimant to timely obtain a rating from a second physician.

The provisions of this subsection may be waived by the employer with or without stating a cause.

PTD

With respect to injuries resulting in the death of a claimant, the statute has been changed with respect to dependents. The statute previously stated that the employer shall pay to the “total” dependents of the claimant a death benefit. However, “total” has been removed from the statute.

The definition of dependent now also includes a stepchild claimable by the deceased on his or her federal tax return at the time of the injury.

Termination

No employer or agent shall discharge or discriminate against a claimant 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.

For the purposes of this section “motivating factor” shall mean that the claimant’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.

Hardship Hearings

With respect to a claimant’s request for a Hardship Hearing the statute previously allowed the Division 60 days to set a case for Hearing but the statute has now been changed to allow only 30 days.

Coverage for Shareholders of an S Corporation

Beginning on January 1, 2018 a shareholder of an S corporation with at least 40% or greater interest in it may individually elect to reject coverage by providing written notice of such rejection to the corporation and its insurer.