State News : Missouri

Simon Law Group, P.C.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2017 – March 2017

Court Affirms Commission Decision that Claimant was PTD Due to Exposure to Pigeon Droppings on Roof at Work

Lankford vs. Newton County and Treasurer of Missouri as Custodian of Second Injury Fund, No. SD34269 (Mo. App. 2017)

FACTS: The claimant was employed by employer for 10 years, during which time he took as many as 10 smoke breaks per day on the employer’s roof while often discussing work with co-workers.  He was exposed to large numbers of pigeons and pigeon droppings while on the roof.  In 2007, the claimant underwent a lobectomy and suffered a stroke during his recovery that rendered him permanently and totally disabled before his death.  His death certificate states that he died of pneumonia and COPD.  The claimant’s wife, substituted as a party to the Claim as his sole dependent, alleged that the cause of his PTD was complications from a surgery that was necessitated by an occupational disease caused by his exposure to dried pigeon droppings on the employer’s roof.

The ALJ heard testimony from 3 medical experts.  Dr. Parmet testified that the claimant required surgery because of an MAI bacterial infection caused by exposure to pigeon droppings on the employer’s roof.  Dr. Jost testified that MAI could have been contracted anywhere in the claimant’s non-employment life.  Dr. Hofmann agreed with Dr. Jost and added that the claimant’s cigarette smoking was the primary cause of his pulmonary conditions, including contraction of MAI.  The ALJ found Dr. Parmet’s opinion the most persuasive and held that the claimant experienced a greater risk of exposure to contracting MAI during his employment with Employer than in his non-work activities.  Therefore, the Claim was compensable.

On appeal, the Commission affirmed the ALJ’s decision but declined to use the ALJ’s “unequal exposure” standard and instead only required the claimant to establish that the disease was not an ordinary disease of life to which the general public is exposed.  Since all 3 doctors agreed that the infection was extremely rare and at least possible to contract from the employer’s roof, the Commission found that the claimant met his burden to establish occupational disease.

FINDING: The employer appealed and argued that the Commission erred by, among other things, holding that the unequal exposure requirement is not applicable to a claim alleging injury by occupational disease.  The Court disagreed and found that the unequal exposure requirement for an injury by accident is not part of the occupational disease requirement after the 2005 amendments to Workers’ Compensation Law and instead agreed with the Commission that claimant has to prove only that the disease was not an ordinary disease of life to which the general public is exposed.  The Court affirmed the Commission’s decision and Award.

Despite Multiple Inconsistent Statements from Claimant Regarding How Injury Occurred, Claimant’s Injury from Fall Down Ramp Compensable

Phillips vs. ConAgra Foods, Inc., Injury No. 13-081880

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 the doctor that he fell because his left leg gave out.  However, the Claim for Compensation alleged that he slipped and fell from the ramp.  When the claimant was examined by Dr. Swain, he reported that he did not know why he fell.  When he was seen by Dr. Koprivica, he reported that he fell because he caught the heel of his left boot on the edge of the ramp.  At a hearing, the claimant testified that he did not remember how he fell but believed he may have caught his heel on the ramp. 

At a Hearing, the ALJ found that the claimant sustained an accident in the course and scope of his employment, because he was not equally exposed to the risk of falling from the ramp outside of his employment.  The employer pointed out the inconsistencies in the claimant’s reports to his doctors and argued that he fell because his left knee gave out.  However, the ALJ concluded that even if the claimant fell because his knee gave out, falling from a height of 3 - 5 inches put him at a risk for greater injury.  Therefore, his injury arose out of and in the course and scope of his employment either way, and the employer was responsible for benefits.

On appeal, the commission agreed with the ALJ that the claimant statements describing the details of his work accident over a 2 ½ year period varied. However, the Commission stated “we find employee’s statements reflect a less-than-perfect recall of the exact circumstance of his injury. We find inconsistencies in employee’s account 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.”

The Commission stated that “an employee’s inability to explain why an accident occurred does not preclude compensability, so long as the claimant demonstrates that his injuries came from a hazard or risk related to his employment to which he would not be equally exposed in his normal non-employment life.”  Therefore, the Commission affirmed the ALJ’s decision and Award.

Claimant Did Not Forfeit Benefits When Refused to Take Drug Test Because Employer Did Not Unequivocally Request He Take It on Date of Injury and He Did Take It Two Days Later

Francisco vs. Mega Industries Corporation, Injury No. 15-035903

The claimant sustained a back injury at work on May 13, 2015.  When he went to HealthWorks for medical care, his foreman asked him to take a breathalyzer and urinary analysis drug test.  He took the breathalyzer but declined to undergo the urinary analysis.  The foreman told him he had to take the drug test, and the claimant testified he knew it was the employer’s policy to submit to a post-accident drug screen.  He advised his foreman that he was anxious to take the test because he had marijuana in his system, and the foreman stated that he did not know what to tell him, and he left without taking the drug test.  The claimant denied using drugs and testified that he declined to take the drug test because he had smelled marijuana at a nightclub.  The day after his injury, the employer called the claimant and advised that if he wanted to continue to be employed he had to return and take the drug test, which he did the next day on May 15, 2015, which was negative.  The employer denied his claim pursuant to a statute that states that a claimant who refuses to take a post-accident drug test when the employer’s policy clearly authorizes the same forfeits all workers’ compensation benefits.

At a Hearing, the employer argued that the claimant was not entitled to any benefits under workers’ compensation law because he refused to take the post-accident drug test.  The ALJ found that the employer had a policy for post-accident drug testing, and the claimant knew of this policy but refused to take the drug test on his date of injury.  Taking the drug test two days later did not negate his refusal to take it on his date of injury, and if he had taken the test on his date of injury, it may have tested positive for a controlled substance, even though the test he ultimately took was negative.  Therefore, because the claimant refused to take the drug test on his date of accident, he forfeited his benefits under Missouri Workers’ Compensation law and his claim was denied.

The claimant appealed to the Commission, which reversed the Award and decision of the ALJ.  The Commission held that the employer did not unequivocally and unmistakably request the employee to submit to the drug test.  Instead, it opined that personnel at the health clinic asked him to perform the drug test and the claimant’s supervisor merely reminded him in general terms of what the employer’s policy required.  The Commission noted that the employer’s policy did not address what actions may be deemed a refusal to submit to a drug test and did not provide a time frame for taking the drug test.  When the employer first unequivocally requested that he submit to a urinalysis, the claimant underwent the same and that result was negative.  Because the Commission found that the employer failed to show that it unequivocally requested that the claimant submit to a drug test on his date of injury, it found that the employer failed to support an affirmative defense.  Therefore, the claimant did not forfeit his benefits.  The employer was ordered to provide treatment and pay for past medical treatment.

No Safety Penalty for MVA Potentially Caused by Speeding and Failure to Wear Seatbelt, Because Employer Failed to Show It Made Reasonable Efforts to Ensure Compliance with Safety Rules

Elsworth vs. Wayne County Missouri, Injury No. 07-026920

The claimant was severely injured in a motor vehicle accident on March 30, 2007 in Wayne County, Missouri while driving a dump truck for the employer.  According to witness reports, the claimant was driving the dump truck when he began to cross the center line and swerved to the right to avoid hitting a car traveling in the opposite direction.  He overcorrected, crossed the center line, and overturned down an embankment on the opposite side of the road.  Testimony established that the employer had no written safety rules or procedures prior to the accident, and the employer allowed the claimant to drive the dump truck although he did not have a CDL license.  The employer testified that the claimant was instructed to observe all traffic laws and wear a seatbelt, but there was no other evidence to indicate what safety rules or instructions he received.  The claimant’s wife allegedly reported that he had just texted her before the accident, and it was believed he may have had ADHD.  It also appeared from expert testimony from an accident reconstruction expert that the claimant may have been speeding and was not wearing a seatbelt immediately prior to the accident.

At a hearing, the sole issue was whether the employer could assert a safety violation when it alleged that the claimant failed to wear a seatbelt and was speeding, texting while driving, and inattentive due to ADHD.  The ALJ held that there was no evidence that the claimant was texting and driving or that either texting or his ADHD contributed in any way to his injury.  Also, even if evidence showed that the claimant was not wearing a seatbelt and was speeding immediately prior to the accident, the employer had not made a reasonable effort prior to the date of injury to ensure its employees were using safety devices and obeying traffic laws.  Telling employees to “obey all laws” does not qualify as a safety policy under the meaning of the statute.  Therefore, the employer was not allowed to take a safety penalty in this matter.  On appeal, the Commission affirmed the ALJ’s Award and decision and noted that the statutory penalty for safety violations was not an invitation to inject issues of claimant negligence.

Employer to Pay Past Medical Because Unauthorized Treatment Flowed from Effects of Claimant’s Compensable Work Injury

Gerlemann vs. Missouri Department of Transportation - Missouri Highway & Transportation, Injury No. 12-039515

On May 24, 2012, the claimant was in a motor vehicle accident where the flatbed dump truck he was sitting in was rear ended by a car on the highway, after which he complained of pain in his left elbow, neck, low back, and left shoulder.  The claimant treated conservatively with Dr. Lange and was released from care on June 25, 2012.  However, he reported continued neck and left shoulder pain, and Dr. Lange recommended additional physical therapy and released him from care again on November 5, 2013.  He subsequently treated on his own with his personal doctor for shoulder pain.  The claimant testified that outside of work he raises cattle weighing 400-500 pounds, which involves physically pushing cattle forward through a chute to treat them. 

Dr. Volarich examined the claimant at the claimant’s attorney’s request and opined that his current left shoulder pain was causally related to the work accident.  Dr. Mall examined the claimant for the employer and diagnosed AC joint arthritis, which he opined was consistent with the claimant’s age and farm work and was not related to the motor vehicle accident.

At a hearing, the ALJ found Dr. Mall’s testimony persuasive and found that the claimant’s current left shoulder complaints did not arise out of and in the course and scope of his employment but instead could be related to his farm work.  Therefore, the employer was not responsible for any unauthorized medical treatment the claimant underwent for left shoulder after he was released from care by Dr. Lange.

The employee appealed to the Commission, which concluded that the statutory requirements for proving that an injury arises out of and in the course of employment are not applicable to a claim for past medical expenses, which requires that the claimant prove only that the need for additional treatment flows from the effects of the work injury.  The Commission pointed to the fact that Dr. Lange opined he would have flare ups of recurrent pain that were related to his work injury and reasoned that the employer had a continuing obligation to provide treatment for these chronic complaints whenever they manifested, even if the claimant had already been released from treatment.  The Commission found that the disputed treatment flowed from the effects of the compensable injuries that the claimant sustained in the work accident and ordered the employer to pay for the medical treatment received by the claimant after he was placed at MMI by Dr. Lange.

Need for Future Total Knee Replacement Flowed from Effects of Work Injury, Despite Claimant’s Severe Pre-existing Arthritis

Grimes vs. Curators of the University of Missouri, Injury No. 10-044243

The claimant sustained an injury to his left knee on June 2, 2010 when he was standing on a lift moving supplies and his toe caught the lip of the lift causing him to fall forward onto his knees.  He was directed to Work Injury Services and then treated with Dr. Komes, who referred him to an orthopedic surgeon.  The claimant saw Dr. Stannard, who noted he was remarkably obese and performed diagnostic arthroscopic surgery on April 26, 2011, because the claimant could not fit in the MRI machine.  Dr. Komes did not impose restrictions related to his work injury, although he opined the claimant could not perform a physically demanding job due to his size.

Dr. Gross evaluated the claimant for an IME on behalf of the employer and opined that part of the claimant’s pathology could be due to his injury but the majority was related to underlying degenerative changes due to his age and size.  The doctor placed him at MMI without restrictions referable to his work injury.  The claimant was also evaluated by Dr. Frisella on behalf of the employer, at which time the doctor opined that his current complaints were due to his degenerative condition.  The doctor opined that he would require bilateral knee replacements in the future, but he did not believe the need for these replacements flowed from his work injury.

Dr. Volarich evaluated the claimant at the request of the claimant’s attorney and opined his complaints would worsen over time due to his age and further degeneration, which was accelerated due to his size.  The doctor further opined he would require a left knee replacement in the future, the need for which flowed directly from the work injury.

At a hearing, the ALJ noted that Drs. Gross and Frisella were knee surgeons and therefore more credible than Dr. Volarich.  The ALJ held that while the claimant would require bilateral knee replacements in the future, the need for these replacements was related to his degenerative condition and not to the work accident.  Therefore, the employer was ordered to pay PPD benefits but was not responsible for future medical. 

On appeal, the Commission held that the claimant’s need for a future left total knee replacement did flow from the effects of the work injury.  The Commission held that it was irrelevant that he would have needed total knee replacements in the future even without the work injury and that he had not sought additional medical treatment for his left knee during the several years since he reached MMI.  It reasoned that the fact that the claimant did not currently require additional treatment for his work injury did not mean that he would not require the same in the future.  Therefore, the employer was ordered to provide future medical treatment, including a left total knee replacement.

Claimant PTD After Last Injury Alone Because Now Has to Lie Down Several Times Per Day and Frequently Change Positions

Nichols vs. Belleview R-III School District and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-109067

On October 29, 2007, the claimant fell down some steps and landed on the left side of her body, at which time she sustained injuries to her neck, low back, and left shoulder.  She subsequently developed numbness in her left forearm and the fingers of her left hand.  She denied any injuries or complaints to her neck or low back prior to her work injury.  She underwent physical therapy and treated on her own with multiple doctors.  Dr. Paletta performed a left elbow ulnar nerve transposition on February 22, 2011, and he subsequently performed a left rotator cuff repair on January 12, 2012.  However, the claimant continued to have neck and low back complaints. 

The claimant had pre-existing conditions, including a stroke that caused twitching in the left side of her face, bleeding and anemia which caused fatigue, and COPD/emphysema that required her to use inhalers multiple times per week.  Prior to her work injury, she worked full duty without restrictions, although her pre-existing conditions and fatigue made her slower when performing job duties.

The claimant was sent to Dr. Chabot, who opined that her continued complaints were not related to her work accident because her treating doctors did not document severe injuries to her neck or back and her neck and back complaints had essentially resolved as of December 7, 2009.  Dr. Chabot did not believe the claimant was PTD, and vocational expert Mr. England agreed.

Dr. Volarich opined that the work injury exacerbated pre-existing degenerative conditions in her lumbar and cervical spine.  He opined that she was PTD as a result of her last injury alone and gave her restrictions including not remaining in a fixed position for more than 60 minutes at a time, changing positions frequently to maximize comfort, and resting when needed.  The claimant testified that after her accident she has to lie down 5 - 6 times per day due to pain.    Vocational expert Ms. Gonzalez testified on behalf of the claimant that based on Dr. Volarich’s restrictions she was PTD.

At a hearing, the ALJ found Dr. Volarich’s and Ms. Gonzalez’ testimony more persuasive than that of Dr. Chabot and Mr. England, and he noted that Dr. Chabot did not review all of the claimant’s treatment records prior to rendering his opinion.  The ALJ found that the claimant was PTD due to her need to frequently lie down and change positions, and he found that she was PTD as a result of the last injury alone because her pre-existing degenerative conditions did not require any restrictions and did not prevent her from working prior to her accident.  The employer appealed, and the Commission affirmed the ALJ’s decision.

Claimant PTD as Result of Last Injury Alone Following Right Foot Injury Despite Claimant’s Testimony That He Missed Work Due to Back Injury Prior to 2009 Date of Injury 

Bernand vs. Paris Ready-Mix and Precast and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-040541

On June 5, 2009, the claimant was changing a tire and wheel on a Bobcat when either the tire or the pry bar he was holding hit his right foot and caused him to fall backwards.  He treated with Dr. Turnbaugh, who diagnosed comminuted fractures of the distal phalanges of the second through fifth toes of his right foot and recommended a CAM boot and physical therapy.  He was referred to Dr. Tiede for pain management.  He was then seen by Dr. Krause, who ordered physical therapy and released the claimant from care on December 18, 2009.  The claimant returned to Dr. Turnbaugh on January 30, 2010, at which time he was referred to Dr. Trevino for desensitization therapy and pain management.  He denied any problems with his right foot prior to his date of injury.

The claimant had a prior work-related low back injury that caused back pain when walking, bending, stooping, and lifting and caused him to miss 2 – 3 days of work each year.  Prior to his 2009 work injury, he continued to have low back pain 1 – 2 times per week and took over the counter medication for the same.

The claimant testified that after the 2009 work injury, his right foot feels frozen and he has constant pain from his toes to the ball of his foot.  Standing and walking increases his right foot pain, and he testified that he has to recline 1 - 3 times per day for a half-hour to one and a half hours at a time due to the pain.

Dr. Russell, the claimant’s expert, evaluated the claimant and diagnosed complex regional pain syndrome due to his work accident and opined he was PTD as a result of his right foot injury alone.  Dr. Shuter testified on behalf of the claimant and agreed that he was PTD due to his last injury alone in light of the fact that he has to lie down during the day as a result of that accident.  Mr. England concluded that the claimant would be unemployable due to his need to lie down during the day. The claimant’s treating physician, Dr. Krause, disagreed and opined that the claimant did not suffer from complex regional pain syndrome and assessed 0% PPD due to the work accident.

At a hearing, an ALJ found that the claimant was PTD as a result of his June 5, 2009 work accident alone, despite his testimony that he had ongoing low back pain from a previous injury that caused him to miss 2 – 3 days of work each year.  She noted that every doctor who treated or evaluated the claimant diagnosed complex regional pain syndrome, except for Dr. Krause, and she found Dr. Russell’s expert opinion persuasive on the issue of PTD.  The ALJ ordered the employer to pay PTD benefits.  On appeal, the Commission affirmed the ALJ’s Award and decision.

Employer Responsible for PTD Benefits After Claimant Sustained Low Back Injury

Clift vs. Queen City Winnelson Company and Treasurer of Missouri as Custodian of Second Injury Fund.  Injury No. 13-051327

The claimant, a 45-year-old employee without a high school diploma or GED, worked in the warehouse loading/unloading equipment and stocking items.  He developed low back pain and numbness in his right leg to his foot while working in the warehouse.  He was seen in the emergency room, at which time an MRI of his low back revealed a herniated disc, and Dr. Crabtree performed back surgery on June 19, 2013.  However, the claimant continued to have low back complaints, and an MRI showed enhancing epidural fibrosis and possible arachnoiditis.  The claimant testified that he cannot lift more than 10 pounds, cannot walk for more than 30 minutes, and cannot sit or stand for more than 30 - 45 minutes.  He also testified that he has to lie down several times per day due to his ongoing pain.

The claimant had pre-existing conditions.  He sustained an injury to his right knee in the 1990's for which he underwent arthroscopic surgery.  He lacerated his right hand in 2000 and developed reflex sympathetic dystrophy in his right upper extremity for which he underwent surgery on February 1, 2000.  He was hospitalized after a heart attack in 2009, and he was diagnosed with sleep apnea in 2009 and used a C-PAP machine.  The claimant testified that none of these conditions prevented him from working, and he denied any difficulty performing job duties prior to his work for the employer.

Dr. Parmet examined the claimant and recommended work restrictions for the 2013 injury, including changing positions frequently and alternating between sitting and standing.  However, both he and the employer’s expert, Dr. Koprivica, concluded the claimant was PTD due to a combination of his 2013 injury and pre-existing disabilities. 

Vocational expert Mr. Eldred testified on behalf of the claimant that none of his pre-existing conditions were a hindrance or obstacle to employment.  He also noted that since the 2013 work injury, the claimant needed to lie down multiple times per day for at least 30 minutes to an hour, which would alone preclude him from employment.  Mr. Eldred also noted the claimant’s limited educational background, and opined he had no capacity to be retrained, and concluded he was PTD due to the last injury alone.

At a hearing, the ALJ found the testimony of Mr. Eldred persuasive and noted that the claimant had to lie down several times per day due to the pain in his low back, which he developed after his work injury.  The ALJ also noted the claimant’s limited education and Mr. Eldred’s opinion that he could not be retrained.  Therefore, the employer was responsible for PTD benefits and future medical.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Responsible for PTD Benefits After Claimant Developed Complex Regional Pain Syndrome After Right Foot Injury

Wetzel vs. Production Castings, Inc.; Injury No. 12-009601

The claimant worked as a die maintenance worker, and on February 14, 2012, he slipped and fell while carrying a heavy die casting and sustained an injury to his right foot.  Dr. Krause performed surgery on February 21, 2012.  The claimant continued to have complaints in his foot and complained of difficulty staying awake at work due to lack of sleep at night.  He was initially placed at MMI on January 14, 2013.  However, in light of his continued pain, Dr. Krause referred him to Dr. Hurford, who diagnosed complex regional pain and imposed permanent restrictions of alternating sitting and standing and no climbing ladders or operating machinery.  The claimant returned to Dr. Krause, who placed him at MMI without restrictions and assessed 10% PPD of the right ankle.  Dr. Hurford continued to treat the claimant for his pain.

At a Hearing, the claimant testified that he either lies down or sits half the day, has trouble sleeping at night, and can only walk about 15 minutes before his pain becomes severe. 

Dr. Guarino and Dr. Volarich examined the claimant at the request of the claimant’s attorney and diagnosed complex fusional pain syndrome, which was related to the claimant’s work injury.  Dr. Volarich opined the claimant was PTD as a result of the last injury alone. Dr. Nadaud and Dr. Dunteman examined the claimant on behalf of the employer and concluded that he did not have complex regional pain syndrome and did not require any additional treatment.

Vocational expert Mr. Lalk opined the claimant was unemployable and noted that he needed to change positions after an hour to either recline or lie down and sometimes has to lie down for 1 - 3 hours in the morning after taking his medication.  Ms. Abram testified on behalf of the employer and noted that the claimant had experience supervising and using smart phones and computers and had also previously completed college level courses in medical billing and coding and was capable of perform work in that field.

At a Hearing, the ALJ noted the claimant’s high GPA in college and found Ms. Abram’s testimony more persuasive than that of Mr. Lalk and Dr. Volarich.  The ALJ found that the claimant was not PTD but was entitled to future medical treatment in the form of pain management.  Therefore, the ALJ found that the claimant sustained 75% PPD of the right lower extremity at 160-week level and awarded future medical.

The claimant appealed to the Commission, which modified the ALJ’s Award.  The Commission concluded that because the ALJ did not directly address the issue of the claimant’s credibility, they could not defer to the ALJ’s credibility determinations with respect to the claimant’s testimony.  The Commission found the claimant’s testimony to be persuasive and also found the testimony of Dr. Hurford, Dr. Guarino, and Dr. Volarich more persuasive that that of Dr. Krause.  The Commission concluded that the claimant suffered from CRPS as a result of his 2012 work injury and had to lie down for most of the day.  The Commission found the claimant was therefore PTD due to the last injury alone, and the employer was ordered to pay PTD benefits.

Fund Responsible for PTD Benefits After Low Back Injury

Barnes vs. Park Express LLC, Injury No. 09-099109

On November 11, 2009, the claimant was carrying a bus tire when he felt a pop in his back that caused severe low back and buttock pain that radiated down his right leg.  He treated with Dr. Doll and underwent multiple ESIs and physical therapy.  Dr. Wilkey subsequently performed a lumbar fusion and imposed permanent restrictions of lying down for 15 minutes every two hours as needed and changing positions often.  The doctor also predicted that he would need to miss as many as 24 work days per year due to his pain.  The claimant testified that after surgery, he has to recline three or four times per day and is unable to get out of bed on some days due to pain.

The claimant had prior low back injuries.  He was in motor vehicle accidents in 1993, 2000, and 2004, after which he treated for low back pain.  He was diagnosed with a herniated disk and underwent lumbar surgery following the 2000 MVA, and he settled with his employer for 25% of the lumbar spine.  He also had flare-ups of low back pain from 2001 through 2004.  The claimant underwent physical therapy for a left shoulder injury that he sustained in 2007.  However, he frequently missed therapy appointments due to exacerbation of his back pain.  He also reported to the physical therapist in November 2008 that his back still gave out at times since his 2001 surgery.  However, despite multiple low back injuries, the claimant continued to work overtime with occasional flare-ups in a heavy labor position without accommodation.

Dr. Doll and Dr. Kitchens did not believe the claimant sustained any permanent disability from his 2009 injury.  Dr. Wilkey opined the claimant had some disability from a pre-existing back injury in 2000 but did not opine how much disability he had due to the pre-existing condition.  Both vocational rehabilitation specialists agreed that assuming Dr. Wilkey’s restrictions, the claimant was PTD due to his need to frequently lie down.

At a hearing, the ALJ found that the claimant was PTD due to the last injury alone and pointed out Dr. Wilkey’s permanent restrictions that the claimant had to lie down and change position often and would have approximately two absences from work per month due to his injury. Therefore, the employer was ordered to pay TTD, PTD, and past and future medical expenses.

On appeal, the Commission modified the ALJ’s Award and decision with respect to PTD benefits.  The Commission agreed that the claimant was PTD, but it held that he was PTD due to the combination of his primary injury and prior low back injuries.  The Commission found that the ALJ and experts focused solely on the claimant’s overall level of functioning after the 2009 work injury but did not consider whether his condition and permanent restrictions resulted solely from the last work injury alone.  The Commission did not believe that the claimant would be PTD following the 2009 work injury if it were not for his prior low back injuries, despite the fact that he continued to perform heavy duty work prior to his 2009 work injury.  Therefore, the Commission found the Fund liable for paying PTD benefits.

Insurer to Pay Enhanced Death Benefits Even Though there was No Exposure During the Policy Period Because It Provided Insurance to Employer with Mesothelioma Endorsement and Claimant Diagnosed with Mesothelioma During Policy Period

Casey vs. E.J. Cody Company, Inc., Injury No. 14-102671

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 worker’s 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 that the responsible party was the insurer in 1990.  However, the ALJ found that the insurer was responsible for paying benefits. The ALJ noted that the mesothelioma endorsement itself provided coverage for mesothelioma benefits; specifically referred to the statute dealing with mesothelioma and stated that “[y]our policy provides insurance for these additional benefits.” Furthermore, any provision in the policy stating that the exposure must occur during the policy period is essentially voided by the endorsement. The ALJ also noted that the date of diagnosis determines what insurer is liable for benefits under the statute. 

On appeal, the Commission modified the Award but ultimately agreed with the ALJ that the insurer was responsible for paying benefits. The Commission did agree with the ALJ that the insurer’s mesothelioma endorsement applied to this claim since 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. The Commission did not agree with the insurer’s argument that the section of the statute that shifts all liability to the last employer in whose employment the employee was last exposed to the hazard also shifts liability to the last insurer.

Editor’s Note: Therefore, it appears that the date of diagnosis determines the responsible insurer, but this matter is being appealed to the Court of Appeals. Also, please note this case only deals with mesothelioma which is the only occupational disease to toxic exposure which requires an employer to either accept or reject coverage. Also in this case the claimant was diagnosed after the Amendments went into effect and therefore there is still a question as to whether the statute applies to cases where a claimant is diagnosed prior to January 1, 2014. Also, there is a constitutionality issue that has not been addressed as the ALJ and Commission do not have the authority to decide the same.

HOLDING: The employer first argued that the claimant’s claim was barred by the statute of limitations arguing that her injury became reasonably discoverable and apparent as early as 2005 and 2007. However, the Commission did not agree since the EMG/NCS was normal and she was not diagnosed with the condition.

The employer also argued that the Commission erred in finding that the employer was responsible for the claimant’s past medical treatment. The employer argued that even the claimant testified that her insurance through the employer paid for all of her medical expenses and to her knowledge those bills were completely satisfied. She also testified that she was unaware of whether she would be asked for reimbursement of those charges in the event that the case was deemed compensable. In light of this the Commission found that since she was not aware as to whether the insurance company could ask for reimbursement, the employer was responsible for the bills. The employer also argued that because of being self insured for workers’ compensation purposes any payment by the claimant’s health insurance through the employer must be deemed a payment directly from the employer. The Court did not agree and the Commission’s Decision was upheld.

Firefighter Who Had Knee Replacement Found PTD as Result of Last Injury Alone Despite Prior Arthroscopy on Opposite Knee

Palmer vs. South Metro Fire District and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 11-077076

The claimant, a 59 year old long term firefighter/EMT, was walking out of a fire and his foot caught on debris causing him to fall on his left knee. He underwent an arthroscopy and ultimately underwent a total knee replacement on November 8, 2011. When he was placed at MMI by the authorized treating physician he was given multiple restrictions which caused him not to be able to return to work as a firefighter. At a Hearing the claimant also testified that as a result of his injury he was having problems with his right knee and back due to gait issues. The claimant did have a prior right knee injury in 2007 for which he underwent an arthroscopy and received a settlement for 15% disability to the knee. After this injury he was released to return to work with no restrictions.

The claimant’s expert, Dr. Koprivica, believed that if the claimant was PTD it was due to his injury and his pre-existing condition. Dr. Stuckmeyer, presumably the Fund’s expert, believed that the claimant was PTD as a result of the last injury alone.

The ALJ found that the claimant was PTD based on the last injury alone opining that the claimant’s prior injury did not result in any restrictions. Also as a result of the last injury he developed additional pain in his right knee along with law back pain. The Commission affirmed the Award of the ALJ.

Claimant Entitled to TTD After Being Placed At MMI Because Continued to Be Engaged in “Rehabilitative Process”

Jefferson City Country Club vs. Pace and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD79405 (Mo. App. 2016)

FACTS: On October 4, 2002, the claimant was breaking down tables when 5-6 table toppers fell on her and she sustained an injury to her neck and right shoulder.  In August 2004, Dr. Graven performed surgery on her neck.  Thereafter, Dr. Rummel performed surgery on her right shoulder.  She was placed at MMI on November 17, 2005.  Thereafter, she continued to have complaints and was diagnosed with depression. She sought treatment on her own and went to a Temporary Hearing and thereafter she underwent a second surgery on her neck which was performed by Dr. Chabot. 

A Final Hearing was held at which time the parties stipulated that the claimant reached MMI on August 25, 2011.  A Final Award was issued by the ALJ and it was appealed to the Commission who determined that the claimant sustained a work related injury; she is PTD as a result of her neck and right shoulder injuries coupled with her depressive symptoms; she failed to prove Fund liability as there was no evidence of disability before her work injury; she is entitled to past temporary disability benefits from November 7, 2005 - August 24, 2011 and she is entitled to future medical treatment.  The employer appealed.

HOLDING: The employer argued that the Commission used the wrong legal standard for the causation requirement as it assumed that proof of depressive symptoms alone constituted proof of causation.  The Court noted that the employer’s argument had no merit as the Commission explicitly accepted the claimant’s expert medical testimony as credible and persuasive.

The employer also argued that the Commission erred in finding that the claimant was engaged in the “rehabilitative process” between November 17, 2005 - January 2, 2011 because the finding was contrary to the overwhelming weight of the evidence.  The Court noted that pursuant to the statute partial disability benefits are to be paid “throughout the rehabilitative process.”  Whether a treatment is a part of the rehabilitative process is a question of fact for the Commission.  The Commission found that the claimant persuasively testified that she continually sought help for her condition after she was released by Dr. Rummel on November 17, 2005. 

The Court looked to Greer and noted that in that case the Supreme Court found that the fact that the treatment the claimant underwent after she was placed at MMI was intended to restore Greer to a condition of health or normal activity by a process of medical rehabilitation.  The Court further noted that whether the treatment is successful is immaterial to the determination of whether treatment is part of the rehabilitative process.  The Court noted that like Greer, the claimant continued to seek treatment for pain related to her work related injury despite the fact that multiple doctors had found that she had reached MMI.  Therefore, the Court found that the claimant was entitled to TTD during this time.  Therefore, the Commission’s decision was upheld.

The employer appealed to the Commission arguing that the claimant was not entitled to future medical because the only medical care he has received since the hearing is what he was already receiving for his pre-existing conditions.  The Commission affirmed the ALJ’s decision, finding that just because a claimant has not yet sought treatment beyond what he was already receiving before his work injury does not mean that he will not require such treatment in the future.  It also noted that the fact that treatment needed for a work injury may also benefit a non-compensable or pre-existing injury is irrelevant.

Medical Provider’s Application for Payment of Additional Reimbursement of Medical Fees was Untimely because It was Filed More Than One Year After the First Notice of Dispute of the Medical Charges

Rathgeber v. Phelps County Regional Medical Center, Injury No. 12-003925, Medical Fee No. 12-01320

The claimant was an employee of Phelps County Regional Medical Center when she sustained an injury and received authorized treatment at St. Louis Spine & Orthopedic Surgery Center (Provider) on August 8, 2013.  The Insurer mailed an EOB and a check in partial payment of the Provider’s medical bill, which the Provider received and deposited on September 20, 2013.  Over fourteen months later, the Provider filed an Application for Payment of Additional Reimbursement of Medical Fees with the Division.

The ALJ denied the Provider’s Application for Payment, finding that it was barred by the statute of limitations under §287.140.4.  Since the date of service in question occurred after July 1, 2013, the Provider had one year from the first notice of dispute of the medical charge in which to file its Application for Payment.  The first notice of dispute occurred when the Provider received the partial payment check and EOB on September 20, 2013.  Since the Provider did not file its Application for Payment within one year after receiving the check and EOB, its Application for Payment was untimely and barred by the statute of limitations.  The Commission affirmed.

Twenty-Nine Year Old Claimant Found PTD from Last Injury Alone, Despite Pre-existing Disabilities, Because Primary Injury Makes it Necessary for Him to Lie Down Three to Four Times Per Day

Brumble v. Missouri Department of Corrections and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-101047

The claimant was a 29 year old employee of the Department of Corrections.  On December 6, 2012, he was lifting a “cambro” container during breakfast when he felt a pop or pull in his right hip.  Dr. Taylor diagnosed an L5-S1 annular tear and performed surgery in May of 2013.  The claimant also had pre-existing injuries.  On February 20, 2011, he hit his right elbow on a food cart, after which he had continuing pain in his elbow and stiffness.  On January 24, 2012, he tripped on a doorframe and injured his left knee, after which he had weakness in the same as well as pain.  It appears that he received minimal treatment and did not undergo surgery for these conditions.  He testified that neither condition interfered with his ability to perform his job duties.

At a hearing, the claimant alleged to be permanently and totally disabled and testified that he is no longer able to sit or stand for very long and has to lie down during the day to relieve his back pain.

Dr. Taylor, the treating physician, opined the claimant could work at the medium demand level, noting that he had been lifting up to 50 pounds at physical therapy, bending down, butchering roosters, chopping wood with a log splitter and cutting logs with a chainsaw.  The claimant’s expert Dr. Volarich opined that he was permanently and totally disabled as a result of the December 6, 2012 injury alone due to his need to lie down during the day.  Vocational counselor Mr. Eldred noted that the claimant’s pre-existing disabilities were not sufficient to prevent him from working prior to his December 6, 2012 injury and noted that he now needs to lie down four times a day, which would make him unemployable in the open labor market.

The ALJ found that the claimant was permanently and totally disabled as a result of his December 6, 2012 injury alone, in light of his need to recline during the day to alleviate his back pain.  Since he was PTD as a result of the last injury alone, the Fund was not liable for PTD benefits.  On appeal, the Commission affirmed the ALJ’s decision.  

Court Affirmed Commission’s Finding that Claimant PTD as Result of Last Injury Alone

Palmer v. City of Columbia and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. WD79225 (Mo. App. 2016)

FACTS: The claimant was a 61 year old man with a low IQ who received a high school diploma before working as a trash collector for 38 years.  His left shoulder was crushed in 2011 when a trash truck pinned it against a pole, requiring surgery.  He filed a claim for PTD benefits against the employer and the Fund.

After testimony from the claimant and expert witnesses for both sides, the ALJ found the claimant PTD as a result of his left shoulder injury alone, reasoning that he was an older worker with a low IQ and no transferable skills or possibility of retraining.  Therefore, the ALJ ordered the employer to pay PTD benefits beginning after the original MMI date and all future medical.  His claim against the Fund was denied in full. On appeal by the Employer, the Commission affirmed the AlJ’s decision.

HOLDING: The employer appealed, arguing that the Commission’s finding that the claimant was PTD due to the last injury alone was not supported by competent and substantial evidence.  The Court found that the Commission was free to credit the opinions of the claimant’s experts and reject the contrary medical opinions of the employer’s experts.  After reviewing the evidence on the record, the Court also found that the Commission’s decision was based on substantial and competent evidence on the record and affirmed the Commission’s decision.

Employer Responsible for PTD Benefits After Pain from Primary Injury Caused Need to Frequently Lie Down Throughout the Day

Hunt v. Hendrick Automotive Group/Superior Buick Cadillac and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-014882

The fifty year old claimant was walking from one area of the employer’s premises to another when some co-employees stuck a broom handle between his legs, causing him to fall and twist his leg.  He treated with Dr. Dugan and Dr. Gurba, who performed a total of six left knee surgeries which provided no relief.  Over time the claimant developed complaints in his left hip and low back due to his left knee injury and also injured his right knee when he fell down after his left knee locked.  He was subsequently released from care in 2014 and referred to pain management.  He also had a pre-existing, non-work related left knee injury and underwent surgery in 2008.  He did not miss any time from work as a result of his 2008 left knee injury, had no difficulty obtaining employment, and testified that his personal hobbies and activities were not restricted in any way by this injury.

At a hearing, the claimant testified that he now uses a walker and continues to have pain in his low back, left hip, and bilateral knees, which prevents him from sleeping well at night.  As a result, he must lie down during the day to sleep.  He also testified that he had been seeking employment but has not worked since his injury.

The claimant’s expert, Dr. Stuckmeyer recommended restrictions of no prolonged standing or walking and that he be allowed to lie down frequently throughout the day and opined that if the claimant were PTD it was due to the primary injury alone.  Another claimant’s expert, Dr. Abrams diagnosed chronic pain syndrome and also recommended that he be allowed to frequently lie down throughout the day.  The treating doctor, Dr. Gurba provided permanent restrictions of sedentary work only and alternate sitting and standing as needed.  Mr. Dreiling performed a vocational evaluation and found the claimant to be unemployable due to his need to alternate between sitting and standing and lie down throughout the day.  Mr. Cordray also testified that if Dr. Stuckmeyer’s restrictions required him to frequently lie down throughout the day, then he would be PTD. 

The ALJ found that the claimant was PTD as a result of his last injury alone and noted that all expert testimony as well as that of the claimant indicate that his prior 2008 left knee injury did not prevent him from working and was not a hindrance or obstacle to employment.  Therefore, the ALJ found that the employer was responsible for PTD benefits and future medical care.  The employer appealed, and the Commission affirmed the ALJ’s decision.

Employer Responsible for PTD Benefits After Claimant Could Only Perform Right-Handed Work Following Left Shoulder Injury 

Payton v. Maryville RII School District and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-019253

On March 10, 2014, the claimant, a fifty-eight year old man with a high school education, helped a co-worker lift a soccer goal that weighed 200 pounds, at which time he heard a loud pop and felt excruciating pain in 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 filed a claim against the employer for PTD benefits.

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 his sleep deprivation.  Dr. Koprivica testified on behalf of the claimant that he did not have any permanent disability to his left shoulder prior to his 2014 injury.  The doctor also placed a permanent work restriction on the claimant due to the 2014 injury alone, including the need to recline and take naps on an unpredictable basis during the work day due to sleep interruption due to his pain.  The doctor opined that he was unemployable based on these restrictions.  Vocational expert Mr. Dreiling agreed that the claimant was unemployable due to the 2014 work accident alone because of his need to recline during the day.  Another vocational expert, Mr. Cordray agreed that relying on Dr. Koprivica’s restrictions, the claimant would be considered unemployable in the open labor market.

At a hearing, the ALJ found the claimant’s testimony and Dr. Koprivica’s opinion credible.  The ALJ noted that he was able to work full time without restrictions and regularly lifted 50 pounds at work prior to his 2014 work injury, and he did not have sleep interruption or need to sleep during the day prior to his 2014 work injury.  Therefore, the ALJ found the claimant PTD due to the 2014 work injury alone and ordered the employer to pay PTD benefits and provide future medical treatment.  On appeal, the Commission affirmed the ALJ’s decision.

Court Reversed Commission’s Decision that Claimant Failed to Meet Burden of Proving the Accident was Prevailing Factor, Because Commission Ignored Plain Meaning of Dr. Koprivica’s Testimony

Malam v. State of Missouri Department of Corrections, Case No. SC95170 (Mo. S.Ct. 2016)

FACTS: The claimant, along with two co-employees, subdued a prisoner.  After escorting the prisoner, the claimant went into his office to get a drink and began to spit up blood.  An ambulance was called and the claimant eventually lost consciousness, which he regained one week later.  The majority of the medical records stated that he fell and someone fell on top of his chest.

The treating physicians were uncertain whether the incident aggravated the claimant’s pre-existing cardiac and respiratory conditions and caused the hypertensive crisis or the hypertensive crisis was a direct result of the incident alone.  The employer’s expert, Dr. Puricelli testified that the claimant’s pre-existing health problems were the prevailing factor in causing his hypertensive crisis.  The claimant’s expert, Dr. Koprivica, believed that the work incident was the prevailing factor in precipitating his hypertensive crisis, as he felt that absent the work incident, it would be impossible to predict that the claimant would have developed the hypertensive crisis.  At a hearing, the ALJ found for the employer based on Dr. Puricelli’s testimony.

The claimant appealed, and the Commission agreed that the claimant was not entitled to benefits because he failed to prove that the incident was the prevailing factor in causing his hypertensive crisis.  It found Dr. Koprivica’s testimony equivocal because he testified that the incident was “the direct, proximate and prevailing factor precipitating [the claimant’s] hypertensive crisis.”  The Commission interpreted this to mean that Dr. Koprivica believed that the altercation was both the prevailing factorand a triggering factor.

HOLDING: The claimant appealed to the Missouri Supreme Court arguing that the Commission erred by disregarding Dr. Koprivica’s testimony.  The Court reversed and found that the Commission was overly technical and ignored the plain meaning of Dr. Koprivica’s testimony, which was that the accident was the prevailing factor causing the hypertensive crisis.  Therefore, the Commission’s decision was reversed and remanded.

ALJ Not Bound by Stipulation Regarding a Pre-existing Disability When Determining Fund Liability for Pre-existing Conditions

Carroll v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-106262

The claimant developed right cubital tunnel syndrome on or about October 1, 2012 for which he underwent surgical intervention.  He settled his claim with the employer for 17.5% PPD of the right upper extremity at the elbow.

The claimant sustained a prior injury to his left hand in 1986, which he settled with the employer for 14.57% PPD of the left hand.

Dr. Stuckmeyer testified on behalf of the claimant that he had 30% pre-existing PPD of the left hand due to his 1986 work injury.  The Second Injury Fund did not provide expert medical opinion testimony providing a current rating for the 1986 work injury.

At a hearing, the ALJ found that the claimant failed to meet the minimum threshold to trigger Fund liability because he was bound to find that the claimant had 14.57% pre-existing PPD of the left hand pursuant to the 1986 settlement agreement. 

The claimant appealed to the Commission, which reversed the ALJ’s Award.  The Commission found that although an ALJ is bound to accept the percentage of PPD agreed upon in a compromise settlement agreement with respect to a primary injury, it is not bound to accept the percentage of PPD that was agreed upon in a prior compromise settlement agreement when determining the Fund’s liability with respect to pre-existing conditions.  To hold otherwise would fail to take into account additional disability involving the same body part such as degeneration due to the normal aging process.  Also, pursuant to statute, the minimum threshold to trigger Fund liability refers to the nature and extent of pre-existing disability as it exists on the date of the primary injury, not at the time of a prior settlement.  Therefore, the Fund was liable for enhanced PPD benefits.

ALJ’s Conclusion that Statute Requires Physician Certification to Find PTD Reversed by the Court

Treasurer of the State of Missouri v. Daryl Majors, Case No. WD79465 (Mo. App. 2016)

FACTS: The claimant stepped off a street sweeper truck onto a cobblestone curb while working on March 29, 2012, at which time his foot slipped into a hole and he sustained an injury to his right knee, which required surgery.  The claimant also had significant prior injuries to his left knee, including surgery to repair MCL and ACL tears in 1973 and a total knee replacement in 2002.

Dr. Stuckmeyer examined the claimant at his attorney’s request and recommended a right total knee replacement as well as a vocational assessment to determine the claimant’s employability.  The claimant then underwent a vocational evaluation with Mr. Cordray, who opined the claimant was not employable due to the combination of his primary injury and his pre-existing left knee condition.

The ALJ noted that although Mr. Cordray opined that the claimant was unemployable, he was not a doctor, and Dr. Stuckmeyer did not explicitly find the claimant to be PTD.  The ALJ held that he could not award PTD since Statute requires physician certification of PTD in order to award PTD benefits.  The Commission reversed, finding that Statute does not require specific language as long as the doctor otherwise confirms the extent of the claimant’s diagnoses, medical conditions, and restrictions.  Here, Dr. Stuckmeyer provided a diagnosis, identified permanent restrictions, and recommended a vocational evaluation, which amounted to a certification of the claimant’s PTD status.  Therefore, the Fund was responsible for PTD benefits.

HOLDING: The Fund appealed the Commission’s decision, and the Court of Appeals affirmed.

Fund Responsible for PTD Benefits Because of Pre-existing Conditions Prior to Claimant’s Date of Disabilityfor Primary Claim

Wickam vs. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD79188 (Mo. App. 2016)

FACTS: The claimant sustained a right shoulder injury on August 17, 1999 and subsequently developed bilateral carpal tunnel syndrome, which required bilateral carpal tunnel releases in 2003.

The claimant had numerous other conditions.  He sustained a right shoulder injury and underwent a total shoulder replacement in 2000.  He also presented testimony that he suffered from ADHD and a personality disorder.  He underwent a tracheostomy in 2003 for sleep apnea followed by a stoma revision in 2004.  Finally, he presented evidence of bilateral knee disability due to a knee problem he had for 20-30 years.  Dr. Thomas diagnosed retropatellar crepitance of the left knee and performed surgery on the same on February 5, 2004, along with a medial meniscectomy and debridement.

The claimant’s expert Dr. Koprivica evaluated the claimant on November 1, 2001, diagnosed bilateral carpal tunnel syndrome, and recommended surgical intervention.  In a later report, the doctor opined that claimant’s right shoulder, psychological condition, sleep apnea, and bilateral knee conditions pre-existed his bilateral carpal tunnel syndrome and he was PTD due to a combination of his primary and pre-existing conditions.  Dr. Koprivica’s opinion was not contradicted by any other expert’s opinion.

The Commission found that the correct date of disability for his bilateral carpal tunnel syndrome was November 1, 2001, because that was the date Dr. Koprivica recommended surgery.  Therefore, it found that his bilateral knee and sleep apnea conditions did not pre-exist the primary injury and should not be considered when evaluating the Fund’s liability.  Because Dr. Koprivica’s report included consideration of his bilateral knees and sleep apnea when finding him PTD, the Commission also declined to find that he was PTD.

HOLDING: Both the claimant and the Fund cross-appealed.  The claimant argued that the correct dates of disability for his carpal tunnel syndrome should be September 2003 and December 2003, the dates he was no longer able to work due to his need for surgery.  The Fund argued that the date of disability should be November 6, 2000, the date he was first diagnosed with carpal tunnel syndrome.  The Court of Appeals held that the correct date of disability was September 12, 2003, because there was no evidence that the claimant’s earning ability was impaired prior to that date and he was capable of working without restrictions up to the date of that surgery.  Therefore, the claimant’s sleep apnea and bilateral knee conditions were pre-existing conditions, the claimant was PTD based on Dr. Koprivica’s report, and the Fund was responsible for PTD benefits.

                                                                                       Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2016 – June 2016

Injury Sustained by Stepping Off Steep Edge of Sidewalk While Leaving Work Found Compensable

Lincoln University vs. Narens, Case No. WD79003 (Mo. App. 2016)

FACTS:  At the end of the claimant’s work day, she was walking to her car down a crowded sidewalk on the employer’s campus when she stepped to the right to avoid people walking in the opposite direction, at which time her right foot landed on the steep edge of the sidewalk and turned.  The claimant fell and broke her ankle.  A photograph of the sidewalk where the claimant fell shows that the sidewalk edge is higher than the ground adjacent to it. 

At a hearing, an ALJ found the injury compensable.  On appeal, the Commission affirmed finding that the claimant was in the course and scope of her employment because, although she was leaving work, the extension of premises doctrine applies because she was on premises owned an controlled by the employer.  She also would not have been equally exposed to the risk of walking on a crowded sidewalk with a steep edge on one side in her normal non-employment life. 

HOLDING:  The Appellate Court affirmed the Commission, finding that the risk source of the claimant’s injury was stepping off the steep edge of this particular sidewalk on campus, not simply walking.  Therefore, she was not equally exposed to the risk of injury in her normal non-employment life.  Also, the claimant did not have to prove that she was engaged in a work related activity when the injury occurred, because the sidewalk where she was injured was owned and controlled by the employer and the extension of premises doctrine applies.

Despite Previous Instances of Horseplay, Injuries Sustained after Claimant Intentionally Ignited a Flammable Substance Not Compensable because Risk did not Arise out of the Course and Scope of Employment

Hedrick vs. Big O Tires, Injury No. 11-058168

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 that had nothing to do with his job duties, 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.

Claimant Not Entitled to Permanency or Future Medical because He Failed to Prove that His Continuing Complaints in 2015 were Causally Related to His November 2011 Injury

Jack vs. Triumph Foods, LLC, Injury No. 11-107791 

The claimant worked for the employer trimming fat from meat using a wizard knife with his right hand.  He began having pain, swelling, and triggering in his right hand in February 2011 and was terminated by the employer in November 2011.  He was unemployed until 2014, when he began working for a subsequent employer at a job that required repetitive use of his bilateral upper extremities, and he continued to work there at the time of the Hearing.

The claimant treated on his own with Dr. Prostic in March 2012, at which time the doctor diagnosed cubital tunnel and stenosing tenosynovitis of the long, ring, and little fingers of the right upper extremity.  He returned to Dr. Prostic 2 ½ years later in October 2014, at which time the doctor noted he had no physical evidence of stenosing tenosynovitis but instead appeared to have bilateral carpal tunnel syndrome, and assessed 10% PPD of the bilateral upper extremities.  Dr. Prostic did not diagnose cubital tunnel syndrome at the 2014 visit. 

The claimant was sent by the employer to Dr. Wilkinson in August 2015, at which time the doctor opined that his bilateral upper extremity pain was subjective and found there was no objective evidence of carpal tunnel, cubital tunnel, or stenosing tenosynovitis.  The doctor assessed 0% PPD.

At a Hearing, the ALJ found that the claimant did sustain a work related injury to his right hand in 2011.  However, the ALJ found that he failed to prove that his current condition was causally related to his 2011 work injury.  The ALJ noted that the claimant had been working for a subsequent employer doing repetitive work with his bilateral upper extremities for over a year without accommodations and without receiving treatment for the same.  The ALJ found that he was at MMI for his November 2011 injury and had no disability as a result.  Therefore, the employer was not responsible for any additional medical treatment.  The claimant appealed, and the Commission affirmed the ALJ’s decision.

Employer Responsible for Medical Treatment, Even Though Claimant had a Pre-Existing Condition, Because Claimant was Asymptomatic Prior to Her Date of Injury

Stieferman vs. Optima Graphics, Ltd., Injury Nos. 14-025821 & 14-035591

The claimant worked for the employer as a seamstress.  On April 7, 2014, she tripped on a roll of fabric and fell, injuring her right shoulder.  She underwent physical therapy and reported 75% improvement in her pain.  Two weeks later on April 21, 2014, she tripped again on the same roll of fabric and re-injured her right shoulder.

She was treated by Dr. Hobbs, who diagnosed a retracted full thickness tear of the supra and infraspinatus tendon with retraction to the glenohumeral joint, atrophy, and degeneration with mild glenohumeral osteoarthritis.  Dr. Hobbs opined that her tear preexisted both of her work injuries, since retraction occurs over the course of months or years, and opined that her two work injuries merely exacerbated an underlying condition and were not the prevailing cause of her current right shoulder condition.  He did not recommend any treatment for the work injuries. 

Dr. Emanuel testified on behalf of the claimant and diagnosed a complete tear of the rotator cuff with retraction, joint arthritis, subacromial bursitis, and bicipital tendonitis.  The doctor opined that while the claimant most likely had an asymptomatic full thickness rotator cuff tear prior to her April 7, 2014 fall, her April 7, 2015 was the prevailing factor that caused a complete rotator cuff tear.  The doctor also concluded that her April 21, 2015 fall aggravated her right shoulder but did not tear it.  He recommended a second MRI followed by surgical intervention.

At a Hearing, the ALJ found that both expert witnesses agreed that the claimant had a pre-existing right rotator cuff tear.  However, the ALJ found Dr. Emanuel’s causation opinion more persuasive than that of Dr. Hobbs and held that the April 7, 2015 fall was the prevailing factor causing the claimant’s current condition.  The ALJ noted that she had no pain complaints and did not require treatment prior to April 7, 2015.  Therefore, the ALJ found that the employer was responsible for medical treatment with respect to the April 7, 2014 date of injury. 

Claimant Awarded PPD and Future Medical for Work Related Mental Injury Without Showing That Her Stress Was Extraordinary and Unusual When Compared to Similarly Situated Employees 

Mantia vs. Missouri Department of Transportation and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED103016 (Mo. App. 2016)

FACTS: The claimant worked for MoDOT and assisted at motor vehicle accident scenes.  During her career she was at the scene of multiple serious accidents involving catastrophic injury, dismemberment, and death.  She began to suffer significant emotional and psychological symptoms and filed a Claim alleging psychological injury as a result of an occupational disease.

MoDOT’s expert Dr. Stillings opined that the claimant had work related depressive disorder that resulted in 2.5% PPD to the body. The claimant’s expert Dr. Jovick opined that she had post-traumatic stress disorder and major depressive disorder that resulted in 95% PPD to the body.  Both agreed that she sustained PPD to the body referable to psychological injury as a result of her job duties.

At a Hearing, the ALJ denied the Claim because she failed to prove that she suffered extraordinary and unusual work related stress when compared to similarly situated employees.  The Commission reversed, holding that the 2005 amendments to the Worker’s Compensation Statute abrogated the requirement that an employee compare her stress with that experienced by similarly situated employees.  The Commission awarded 50% PPD of the body referable to her mental injuries and future medical.  MoDOT appealed to the Missouri Court of Appeals.

HOLDING: The Court held that the requirement that an employee compare her work related stress to that of similarly situated employees was a judicially created doctrine which should not be applied under strict construction.  Strictly construed, an employee need only show that mental injury resulted from stress that was work related and extraordinary and unusual as measured by objective standards and actual events. The Court held that the Commission’s decision was supported by the claimant’s testimony and both medical experts, and it affirmed the Award. 

Claimant PTD from Last Injury Alone after She Fell and Injured Her Left Upper Extremity

Smith vs. Premium Transportation Staffing, Inc. and Wil TransTrucking Company, Injury No. 10-019420 

The 54 year old claimant was employed by Premium Transportation Staffing and assigned to Wil Trans Transportation as an over the road truck driver.  Premium’s handbook stated that it was an employer, did not function as an employment agency, and assigns its employees to other companies.  Therefore, the ALJ found that the employer was Premium. 

On March 17, 2010, while working in Denver, Colorado, the claimant attempted to pull a fifth wheel pin, at which time the pin became loose and the claimant fell backwards, injuring her left hand, wrist, shoulder, and tail bone.  Premium arranged for the claimant to be transported back to Springfield, Missouri.  Once there, the claimant wished to return to her home in Alabama and seek treatment there, which she did at an expense of $189.22. 

Dr. Scott, diagnosed a comminuted distal radius and ulnar fracture and traumatic arthritis of the left wrist and performed a left carpal tunnel release on June 21, 2012.  Dr. Hillyer, performed tendon tenolysis at the first, second, and third extensor compartments on October 26, 2012.  She was placed at MMI on April 5, 2013 but continued to have complaints.

Dr. Parmet performed an IME in 2014 on behalf of the claimant and diagnosed post-traumatic left carpal tunnel syndrome which developed into left wrist extensor tenosynovitis and arthritis as well as a frozen left shoulder related to her primary accident due to prolonged immobilization.  He assessed 30% PPD to the shoulder and 75% PPD to the left forearm and opined the claimant was PTD due to her last injury alone.

Mr. Eldred testified on behalf of the claimant and opined that she was unemployable due to her advanced age, low academic testing, medical condition, and limited work history in mainly truck driving.  Premium’s vocational expert did not agree that she was unemployable.

At a Hearing, the ALJ found the testimony of the claimant and her experts credible and persuasive and found her to be PTD based on her last injury alone and that Premium was liable for PTD benefits.  With respect to mileage reimbursement for the claimant’s trip from Springfield, Missouri to Alabama, the Judge found that Premium was not liable because Alabama is more than 250 miles from Springfield, Missouri.  Premium appealed this decision, which was affirmed by the Commission.

Claim against Fund was Untimely because Not Filed within Two Years of Date of Injury or One Year of Claim against Employer/Insurer 

Reynolds vs. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-080366 

The claimant was a staff support employee at a hospital and sustained an injury on October 9, 2011 when a patient grabbed him in the groin area and pulled/twisted forcibly.  He filed a Claim for Compensation on October 27, 2011 and settled with the employer/insurer on August 2, 2013 for 10% of the body referable to the groin.  He dismissed his Claim against the Fund on August 16, 2013 before refiling his Claim against the Fund on July 30, 2014.

At a Hearing before the ALJ, the Fund argued that his Claim against them was barred under Statute, because it was dismissed and not re-filed within two years of the date of injury or within one year of the date a Claim was filed against the employer.  The ALJ held that the Claim was not barred and awarded PPD benefits from the Fund. 

The Fund appealed to the Commission, arguing that the Court of Appeals decision inCouch v. Treasurer of Missouri as Custodian of the Second Injury Fund required the Commission to reverse the ALJ’s decision.  InCouch the Court of Appeals found that a Stipulation for Compromise Settlement between an employer and claimant does not constitute a Claim that pushed back the Statute of Limitations for a Claim to be filed against the Fund.  The Commission agreed with the Fund and reversed the ALJ’s decision, finding that the claimant’s second Claim against the Fund was barred because it was not timely filed within two years of his date of injury in October 2011 or within one year of filing a Claim against the employer/insurer in October 2011.

Claimant’s Pre-Existing Hearing Loss Constituted Pre-Existing Disability to the Body as a Whole for the Purpose of Triggering Fund Liability

Treasurer of the State of Missouri Custodian of the Second Injury Fund vs. Horton, Case No.  WD79261 (Mo. App. 2016)

FACTS: The claimant was employed by a hospital when he was assaulted by a patient and knocked unconscious, after which he suffered from headaches, sensitivity in his left eye, and shoulder, neck, and head pain.  He settled the Claim against his employer for 17.5% of the body referable to the neck.  He had pre-existing hearing loss in both ears, which one doctor assessed to be 34.75% hearing loss and another assessed to be 75% hearing loss.  He filed a Claim for benefits from the Fund.

At a Hearing, the ALJ found that the claimant had 15.5% pre-existing PPD to the body as a result of his hearing loss and awarded benefits from the Fund, which appealed.  The Commission affirmed.

The Fund then appealed to the Missouri Court of Appeals and argued that the claimant did not qualify for Fund benefits because his pre-existing disability, hearing loss, does not meet the threshold to receive those benefits, because it is not a disability to a major extremity or the body as a whole.

HOLDING: The Court found that hearing loss does constitute an injury to the body as a whole.  Using strict construction, it interpreted §287.220.1 to mean that any pre-existing partial disability must fall into one of the two above categories, either disability to a major extremity or the body as a whole.  Since hearing loss is not an injury to a major extremity, it must be considered an injury to the body as a whole.  To hold otherwise would imply that all injuries except those to the eyes and ears trigger Fund liability.  The Court held that the claimant’s pre-existing hearing loss constituted an obstacle to employment and met the threshold to trigger Fund liability.  Therefore, the decision was affirmed.

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2016 – March 2016

Temporary Employer Found Responsible for Temporary Employee’s Fall on Customer’s Property since Customer Owned and Controlled Parking Lot and Temporary Employer and Customer Found to be Joint Employers

 Anhalt v. Penmac Personnel Services, Inc., Injury No. 09-006127

 The claimant worked for Reckitt-Benckiser (RB), through Penmac, the employer, as a field associate.  On January 30, 2009, the claimant finished her shift and was walking across the parking lot owned and controlled by RB to her vehicle when she slipped on a patch of ice and fell, landing on her outstretched right hand.  She was diagnosed with a right distal radius fracture and an ulnar styloid fracture with displacement.  Dr. Goodman performed a closed reduction of the right distal radius fracture.

 The claimant filed a Claim against Penmac only.  At a hearing, the ALJ denied the Claim because she was walking across a parking lot after work when she was injured.  The ALJ reasoned that the extension of premises doctrine did not apply because Penmac did not own or control the property, and RB was not named as an employer in the claim.

 On appeal, the Commission reversed the ALJ’s Award. The Commission noted that the claimant was working as a field associate performing temporary or seasonal services for RB. Penmac and RB jointly developed a training/orientation program for the field associates working at RB. Penmac administered the orientation program before the field associates went to work at RB. The temporary employees would have to check in at the guard station before proceeding to the plant. Also there was a separate time clock installed on RB’s premises for the temporary employees. While working at RB, the temporary employees reported to a supervisor employed by Penmac but employees of RB had authority to direct work of the temporary employees if they saw them doing something unsafe. 

 The Commission noted the claimant’s work involved performing services under the simultaneous direction and control of both Penmac and its client RB. The Commission determined that Penmac and RB were joint employers of the claimant. The Commission noted that joint employment occurs when a single employee under contract with two employers and under simultaneous control of both performs services for both employers and the services provided are the same or closely related to that of the other. The Commission was convinced that the claimant was in the joint service of both Penmac and RB when she was injured since both shared the simultaneous right to direct and control the manner and means of her services.  The Commission further noted that both Penmac and RB enjoyed a benefit from the claimant’s service. Therefore, the liability of Penmac and RB was joint and several. Since RB owned and controlled the parking lot as a joint employer, the claimant could file a Claim against Penmac, and the Claim was compensable.

Claimant’s Injuries Not Compensable Because No Evidence Her Employment Exposed Her to Greater Risk of Injury Than in Her Normal Non-Employment Life

Jensen-Price v. Encompass Medical Group and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-066736

 The claimant left work for the day and brought her laptop with her in order to continue working from home.  She left the office and took the hallway to the public elevator.  When the elevator door opened, a housekeeping cart bumped into her, causing her to fall and sustain multiple injuries.  The employer rented space in the building from the landlord, and the elevators were accessed using a hallway outside of the space the employer rented.  The lease gave the landlord exclusive control over common areas, including the hallway and elevators.  The employer had no rights with regard to the elevators.

 At a hearing, the ALJ found that the claimant’s injuries were not compensable, because the hallway and elevator were common areas that were not owned or controlled by the employer. 

On appeal, the Commission stated that the ALJ applied the wrong test.  It found that because the claimant was carrying her laptop for the purpose of working from home, she was essentially engaged in going from one worksite to another and was therefore performing a work activity for her employer at the time of the accident and had not ended her work shift.  The Commission held the issue was whether the claimant’s employment exposed her to a greater risk of injury than her normal non-employment life.  The Commission found that the record was too vague to determine that the claimant’s employment exposed her to an increased risk of injury, and because of that, it affirmed the ALJ’s decision to deny benefits.

Injury Sustained During a Return to Work Evaluation for a Non-Work Related Condition Arose Out of and in the Course and Scope of Employment and Found Compensable

Sanders v. Rollet Brothers Trucking Company, Injury No. 13-077155

The claimant had a heart condition since 1999.  He was off work from September 17, 2013 to October 1, 2013 after undergoing a non work related heart surgery.  When he was released to return to work, he was directed to the Work STEPS program for a physical evaluation, as there was a mandatory policy that any employee who missed more than 3 days of work had to complete the program before returning to work.  The employer scheduled the appointment and paid for the claimant to attend the program.  During the program on October 1, 2013, the claimant was lifting weighted boxes when he felt something snap in his back and experienced immediate lower back pain.  He was seen by a physician under worker’s compensation, at which time he was diagnosed with a lumbar sprain/strain with sciatica and underwent an injection.  He continued to follow up and undergo physical therapy for about a month, after which he was informed he would have to use his personal health insurance for further treatment.  In December 2013, the employer requested that he turn in his uniform, and he assumed his employment had ended.

 The claimant filed a Claim for Compensation and sought additional treatment for his back injury.  The employer argued that the claimant was not being paid wages or reimbursed for travel for attending the program and he was not employed on his date of injury, because the program was a condition he had to meet before returning to employment.  The ALJ disagreed and held the injury arose out of and in the course of employment because the claimant was required to attend the program or else he would be terminated and the employer scheduled and paid for the program.  Moreover, the claimant was not equally exposed to the risk of injury outside of his employment, because he only participated in it in order to remain employed.  Therefore, the injury was compensable.

On appeal, the Commission affirmed the ALJ’s Award, finding that the statute does not require the employee to be “on the clock” or receiving compensation at the time a work injury occurs, and therefore, the claimant’s injury was compensable.

Truck Driver Awarded PTD for Back Injury Sustained When He Tripped on a Fuel Hose

Price v. BMS Transportation Company, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-096454

On August 7, 2012, the claimant, a truck driver, was driving on assignment when he stopped to fuel up the truck.  While the truck was still fueling, he climbed out of the cab, stepped on the fuel hose, and fell to the ground, at which time he sustained a back injury.  He had no prior history of back pain, injuries, or surgeries.

The claimant was diagnosed with a large herniated disc at L4-5.  His authorized treating physician Dr. Meredith opined that a spinal fusion surgery would typically be the only course of treatment, which only had a 50/50 chance of improving his symptoms.  However, Dr. Meredith noted the claimant was not a good candidate for surgical intervention since he had lived a physically strenuous life, and he was not interested in surgical intervention anyway.  Dr. Koprivica agreed that the claimant had continued back pain but was not a good candidate for back surgery.  Dr. Koprivica also felt he was PTD as a result of his work injury alone.  Vocational expert Mr. Dreiling found that the claimant was unemployable.

The ALJ found that the claimant was at MMI from the date Dr. Meredith determined he was not a surgical candidate.  The ALJ also held that the claimant was PTD from the August 7, 2012 work injury alone and awarded PTD benefits from the employer.  On appeal, the Commission affirmed the ALJ’s Award.

Employer Responsible for PTD Benefits After Head Injury, Despite Pre-existing Cavernous Malformation which Caused Headaches and Left Sided Numbness Since 2000

Schroer v. City of Fulton and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-068337

The claimant worked as a Senior Construction Inspector, and on September 1, 2009, he was climbing out of a manhole after inspecting it when he slipped and hit the back of his head.  He reported he saw stars but did not lose consciousness.  While driving away from the scene of his accident, he became sick and his left side went numb.  The claimant’s treating physician Dr. Scher diagnosed the claimant with post concussive/posttraumatic syndrome and a history of pontine cavernous malformation and found the claimant PTD due to his primary injury alone.  The claimant admitted his pre-existing cavernous malformation caused headaches and left sided numbness beginning in 2000 and he did miss some work because of it, although it did not otherwise affect his ability to work prior to his work injury.  After his work injury, he testified he was not able to work due to headaches, migraines, left sided numbness, double vision, and memory problems.

Dr. Shuter, the claimant’s expert, found the claimant PTD as a result of his work injury and assessed 10% PPD to the body referable to the claimant’s pre-existing cavernous malformation.  The claimant’s psychiatric expert, Dr. Daniel, diagnosed an anxiety disorder, cognitive disorder, post-concussive disorder, traumatic brain injury, and pontine cavernous malformation.  Dr. Daniel causally related the claimant’s condition to his work accident and found him PTD due to the combination of the psychological and physical disabilities resulting from his work injury.  Mr. Weimholt performed a vocational evaluation on behalf of the claimant and concluded he was not employable due to his work accident.

The employer’s expert Dr. Selhorst performed an IME and found the claimant’s complaints most consistent with PTSD.  Dr. Stillings performed a psychiatric IME on behalf of the employer and opined the claimant’s work accident was not the prevailing cause of any neuropsychiatric disorder, as the claimant had a pre-existing personality disorder, and assessed no traumatic brain injury or post-concussive syndrome. 

At a hearing, the ALJ found the expert opinions of Dr. Shuter, Dr. Daniel, Dr. Scher, and Mr. Weimholt more credible and persuasive on the issue of PTD.  Therefore, the ALJ found the claimant PTD based on the primary work injury alone and ordered the employer/insurer to pay future medical care.  On appeal, the Commission affirmed the ALJ’s award. 

Claimant’s Death Not Compensable because His Work was not the Prevailing Factor in Causing His Heart Attack

White v. ConAgra Packaged Foods, LLC, Injury No. 12-048291

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 Certificate of Death 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.  The machine shop was being cooled by opening the doors/windows and running a pedestal fan.  It also established that the claimant was wearing a brace for a foot injury on his date of death and he typically worked 12 hours/day, 6 days/week.  The autopsy revealed a 75-80% blockage of his left arteries.

The claimant’s expert Dr. Schuman testified 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.  He testified that although the claimant performed his normal job duties and was already at risk of cardiac arrest, his heart had to work extra hard that day due to work conditions.

The employer’s expert Dr. Farrar testified that the claimant died from ventricular fibrillation caused by myocardial ischemia which was caused by his coronary artery disease and other heart conditions.  He opined the claimant’s sudden death was not related to his work activities, although he admitted that pain from a prior injury and heat can cause stress that can trigger a cardiac event.

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.  The ALJ found that the claimant’s underlying heart conditions caused his death, which was supported by both experts’ testimony as well the autopsy report.  Therefore, the claim was not compensable.

The claimant appealed, and the Commission affirmed the ALJ’s Award with a supplemental opinion.  It 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.  Therefore, the ALJ’s decision denying death benefits was affirmed.

Commission Reverses ALJ’s Opinion that Employer’s Expert is Most Credible

Wright v. TG Missouri Corporation, Injury No. 10-074011

On July 6, 2010, the claimant was pushing a 1000 pound mold on a cart when it slammed into a machine and he felt a sharp pain in his low back that radiated into his right buttock.  He initially treated with Dr. Kapp, who diagnosed left sciatica with left lower lumbar pain and radicular symptoms.  The claimant was then seen by Dr. Chabot in February 2012, who diagnosed a back strain, released him at MMI, and assessed no PPD as a result of the work accident and opined no additional treatment was needed.

 Two months later, the claimant demanded additional treatment, which was denied.  He then began treating on his own for lower back, neck, and bilateral leg complaints, right greater than left.  Dr. Fonn performed low back surgery in September 2012 and released him from care in March 2013.

In August 2013, Dr. Poetz diagnosed pre-existing lumbar degenerative disc disease, disc herniations at L3-4 and L4-5 with annular tears, foraminal stenosis, radiculopathy, and exacerbation of lumbar degenerative disc disease for which the claimant’s work accident on July 6, 2010 was the prevailing factor.  Dr. Poetz assessed 5% PPD due to his pre-existing condition and 45% of the body due to the claimant’s work accident.  Dr. Chabot issued an addendum to his February 2012 opinion, in which he opined that any complaints after February 2012 were not related to the claimant’s work accident.

The ALJ found Dr. Chabot’s opinion credible and noted that the claimant’s symptoms were distinctly different on February 10, 2012 than they were when he requested additional treatment in May 2012.  The ALJ noted that on February 10, 2012, the complaints were primarily to the low back, left buttock, and left proximal leg, with no mention of right leg complaints.  Three months later, the claimant complained of back pain radiating into both legs, right greater than left with constant aching and tingling in his bilateral legs.  The ALJ found that the claimant failed to prove medical causation for any treatment he received after February 12, 2012.  However, the ALJ awarded 10% PPD of the body as a whole referable to the claimant’s lower back as a result of his work injury.

The claimant appealed to the Commission, which disagreed with the ALJ with respect to the persuasiveness of each party’s medical expert and found that Dr. Poetz’s medical opinion was more persuasive.  The Commission believed the ALJ focused too much on variations in the claimant’s symptoms over time.  It found the claimant’s testimony regarding his complaints to be credible and found that his complaints in May 2012 and onward were medically causally related to his July 6, 2010 work accident.  Therefore, the Commission found the employer was responsible for the claimant’s past medical treatment, any future medical treatment, TTD, and 30% PPD to his low back.

Video Surveillance not Admissible at Hearing Since Employer did not Comply with Continuing Request for Production

Burlison v. Department of Public Safety and Treasurer of Missouri as Custodian of Second Injury Fund,Case Nos. SD33809 & 33816 Consolidated (Mo. App. 2016)

FACTS:  The claimant sustained a work-related injury to her shoulder when a patient grabbed and twisted her arm.  At a hearing, the claimant was found to be PTD as a result of the RSD in her arm.  At the hearing, the employer/insurer attempted to submit into evidence video surveillance which was taken of the claimant, but the ALJ refused to consider it in light of the fact that the video surveillance footage was never provided to the claimant’s attorney.  The claimant’s attorney had previously sent a Notice of Deposition to the employer’s superintendent, which included a request for statements and any video taken of the claimant.  The employer/insurer did not have any video at the time of the request and argued it did not have to produce the video since it was not received until after the request had been made.  The ALJ disagreed and stated the claimant’s attorney can request surveillance pursuant to a Civil Rule despite the fact that the workers’ compensation statute does not apply to videos.  In this case, the claimant’s attorney did not forward a Subpoena Duces Tecum to the superintendent, which is required by the Civil Rule, but the superintendent voluntarily appeared for the deposition, and therefore had a duty to produce any videos.  While the superintendent may not have had the video at the time of the deposition, the ALJ found there is a continuing duty to produce the video, so once the employer obtained the video, they were required to provide the claimant’s attorney the same.  The Commission affirmed the ALJ’s decision.

HOLDING:  On Appeal, the court found that the rules of procedure governing civil depositions also apply to worker’s compensation depositions, and the employer had a duty to supplement the deposition testimony and supply the video.  Since it failed to forward the surveillance video to the claimant’s attorney before the hearing, it violated the rules of discovery, and the surveillance video was correctly excluded from the hearing.

Fund Liable for PTD Benefits After Claimant Injured His Right Knee, Even Though the Treating Doctor did Not Explicitly Find the Claimant PTD

Majors v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-023216

The claimant stepped off a street sweeper truck onto a cobblestone curb while working on March 29, 2012, at which time his foot slipped into a hole and he sustained an injury to his right knee.  Dr. Stechschulte performed a partial meniscectomy, patellofemoral chondroplasty, and arthroscopic debridement of a partial thickness ACL tear.  The claimant settled his claim against the employer for 38.5% PPD of the right knee with future medical left open.

The claimant also had significant prior injuries to his left knee, including surgery to repair MCL and ACL tears in 1973 and a total knee replacement in 2002.  Dr. Stuckmeyer examined the claimant at his attorney’s request and assessed 60% PPD of the right knee due to the primary injury and 50% PPD of the left knee due to prior injuries/surgeries and recommended right total knee replacement.  The doctor opined the combined disability due to the claimant’s left and right knee injuries was greater than the simple sum, assigned a 15% multiplicity factor, and recommended a vocational assessment to determine the claimant’s employability.  The claimant then underwent a vocational evaluation with Mr. Cordray, who opined the claimant was not employable due to the combination of his primary injury and his pre-existing left knee condition.

The ALJ noted that although Mr. Cordray opined that the claimant was unemployable, he was not a doctor, and Dr. Stuckmeyer did not explicitly find the claimant to be PTD.  The ALJ held that he could not award PTD since Statute requires physician certification of PTD in order to award PTD benefits.  Therefore, the ALJ awarded PPD benefits from the Fund by finding 50% PPD to the right knee as a result of the primary injury and a 15% multiplicity factor.

The Commission found Mr. Cordray’s opinion persuasive and reasoned that Statute does not require specific language to certify a claimant as PTD by using the phrase “permanent total disability” as long as the doctor otherwise confirms the extent of the claimant’s diagnoses, medical conditions, and restrictions.  Here, Dr. Stuckmeyer diagnosed the claimant, identified permanent restrictions, and recommended a vocational evaluation, which amounted to a certification of the claimant’s PTD status.  The Commission found the claimant PTD as a result of the primary injury combined with the effects of his prior medical conditions, and the Fund was therefore liable for PTD benefits.

 PTD Denied as Claimant did not Present Evidence as to Why She Stopped Working

 Robertson v. Second Injury Fund, Injury No. 09-071549

On September 17, 2009, the claimant slipped in water and experienced a jarring/twisting motion to her low back.  She was diagnosed with a low back strain and left knee contusion.  She also had an extensive history of 6 prior lower back surgeries between 2005 and 2009 for degenerative disk disease.  In August 2010, the claimant complained of back pain and reported she was losing feeling from her fall at work and believed the hardware from her previous surgery had come loose.  Dr. deGrange performed an IME at the employer’s request and diagnosed a lumbar strain that had resolved.  He opined her current back pain was due to failed back surgery syndrome from her 6 prior back surgeries, rather than to her work accident, and placed her at MMI.  However, the claimant continued to treat, and in 2012, Dr. Abernathie performed hardware removal at L3-S1, before placing her at MMI with permanent restrictions. The claimant returned to work full duty for a few weeks before quitting.

Dr. Margolis performed an IME at the claimant’s attorney’s request and assessed 70% PPD referable to her low back, 40% of which was preexisting and 30% of which he attributed to her work accident.  She settled with her employer for 17.5% PPD referable to her low back.

The ALJ agreed with Dr. deGrange that the work accident was not the prevailing cause of the claimant’s condition and resulting disability.  The ALJ also found the Fund was not responsible for PTD benefits due to her extensive preexisting and deteriorating back condition, the fact that she continued working almost 3 years after the accident, the lack of any objective evidence of a physical change following the work accident, and the claimant’s lack of credibility as a historian.

The claimant appealed, and the Commission reversed the ALJ’s decision.  It credited her testimony that she experienced a permanent increase in her pain after the work accident and found Dr. Margolis’ IME reasonable.  However, the Commission found she was not PTD, because it was unclear why she stopped working.  Therefore, the Commission found the work accident was the prevailing factor in causing a low back strain and awarded 10% PPD to the body from the Fund, due to her significant preexisting condition and prior surgeries.

Fund Responsible for PTD Benefits Due to Combination of Pre-Existing Physical and Psychological Conditions and Work Injury

Valentine v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 06-013126

On February 23, 2006, the 67-year old claimant fell 6 feet off a ladder and injured his right ankle/foot.  He was diagnosed with a right foot intra-articular calcaneus fracture and underwent subtalar arthrodesis followed by 2 additional surgeries for non-unions.  He sought psychiatric help for depression and was given medication.  The claimant also had pre-existing injuries, including a right rotator cuff tear and tendinitis, bilateral shoulder pain, and DJD in his bilateral knees.  With respect to his pre-existing psychological condition, he was previously diagnosed with dysfunctional family origin, poly-substance abuse and dependency, pain disorder, and personality disorder.  He was placed at MMI in February 2008, by which time he had retired, and in February 2015, he settled with his employer for 50% PPD of the right ankle and 11.5% PPD to the body referable to his psychological condition.

Dr. Volarich examined the claimant at his request and assessed 65% PPD of the right foot/ankle referable to his work injury as well as 25% of the right shoulder, 15% of the left shoulder, and 30% of each knee due to pre-existing conditions.  The doctor opined he was PTD due to a combination of his primary and pre-existing conditions, age, and limited education.  Dr. Stillings examined the claimant for psychiatric disorders at his request and assessed a primary psychiatric injury of 45% PPD of the body referable to mood, pain, and anxiety disorders.  He agreed the claimant was PTD, due to his primary and pre-existing psychiatric conditions.  Mr. England and Ms. Blaine also found the claimant PTD and unemployable.

At a hearing against the Fund, the ALJ found the expert opinions of Dr. Volarich, Dr. Stillings, Mr. England, and Ms. Blaine persuasive.  Therefore, the ALJ found the claimant was PTD due to a combination of his primary injury and pre-existing conditions, and the Fund was liable.  On appeal, the Commission affirmed the ALJ’s decision.

Claim for Benefits Denied after Claimant Failed to Appear at Trial

Stovall v. Convergys and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-022817

The claimant injured her right lower extremity while working for the employer on February 27, 2011.  She requested additional treatment but never provided medical evidence substantiating her request.  Her case was set for trial on three occasions but continued at the claimant’s request to give her time to obtain additional evidence.

The case was set for trial on August 20, 2015, and a final notice was sent by certified mail.  Attorneys for the claimant, employer, and Fund appeared for trial at 9:30 a.m.  However, as of 11:15 a.m., the claimant had still not appeared for trial, although she was in touch when her attorney multiple times during the morning and claimed to be on her way to the Division.  The claimant’s attorney requested a delay, to which the employer objected.  The ALJ concluded the trial and awarded a default judgment denying any benefits and finding that the claimant failed to establish a compensable injury by failing to appear for scheduled hearings or present substantiating evidence.  The claimant appealed, and the Commission affirmed the ALJ’s decision.

Claimant’s PTD Benefits Commutated to a Lump Sum to Avoid Undue Financial Hardship to the Claimant

Thomas v. Forsyth Care Center and Missouri Nursing Home Insurance Trust, Case No. SD34151 (Mo. App. 2016)

FACTS:  The claimant was awarded a Temporary Award on December 10, 2007.  The employer failed to comply with the Temporary Award.  The claimant was unable to obtain treatment, and her condition worsened.  At a final hearing, the ALJ determined she was PTD, and the Commission and Court of Appeals affirmed.  The claimant then filed a Motion for Commutation of her PTD benefits, arguing that she has been required to pre-pay for her treatment and prescriptions and then wait almost a month for reimbursement from the employer, which was an undue hardship on her fixed income.  The Commission found the employer had a well documented history of disregarding the ALJ’s Temporary Award and found that the unusual circumstances presented by the claimant called for payment of her anticipated benefits in a lump sum.  The employer appealed.

HOLDING:  On appeal, the court relied on the Commission’s findings of fact and credibility determinations to find that the employer repeatedly made it difficult for the claimant to receive treatment and reimbursement for medical costs.  Therefore, the court found there were unusual circumstances which justified commutation of the PTD benefits, and the Commission’s Award was affirmed.

Second Claim for Compensation Barred by Claim Preclusion

Johnson Controls, Inc. v. Trimmer, Case No. WD77948 (Mo. App. 2015)

FACTS: The claimant sustained a shoulder injury while working on a production line, which involved lifting batteries that weighed eighty-five pounds.  However, the claimant’s statements to his doctors were inconsistent as to causation, and the employer denied liability on that ground.

The claimant filed a Claim that alleged an injury sustained in a specific work accident.  At a Hearing, the ALJ was asked to determine whether or not the injury sustained was due to an accident or occupational disease arising out of and in the course of his employment.  The claim was denied, though the ALJ noted that the injury would have been compensable had the claimant alleged an occupational disease rather than an accident in his Claim.  The Commission confirmed the Award.  No further appeal was filed.

The claimant later filed a second Claim, alleging an injury to the same shoulder caused by occupational disease that manifested itself on the same day as the original Claim.  The employer argued that the second Claim was barred by claim preclusion, because it had already been adjudicated when the ALJ denied the claimant’s first Claim.  The ALJ issued a final Award allowing compensation, which the Commission adopted.  The employer appealed on the issue of claim preclusion.

HOLDING: The Court of Appeals held that the second Claim was barred on three grounds: (1) the claimant presented evidence of both an occupational disease and an accidental injury at the initial hearing and was denied on both theories; (2) the second Claim should have been brought in the first lawsuit but was not; and (3) the second Claim arose out of the same “operative facts” as his initial Claim because it involved the same injury, reported on the same day, and requiring the same treatment.  Therefore, the claimant’s second Claim was barred by claim preclusion and should have been dismissed by the Commission.

Claimant’s Appeal Denied When She Failed to Challenge Each of the Commission’s Reasons for Denying Her Claim

Knight v. Con-Agra Foods, Inc. and Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD78591 (Mo. App. 2015)

FACTS: On January 13, 2009, the claimant sustained a concussion after she fell and hit her head at work.  The employer authorized her emergency room visit, but it made no other payments referable to the injury.  When her request for additional medical treatment was denied, the claimant sought unauthorized treatment, paid for by her personal health insurance through work. 

She filed a Claim for Compensation on August 21, 2013, which was denied by the Commission as untimely on two separate grounds.  First, there was no medical evidence showing that the medical treatment the claimant received in November 2011 was rendered on account of the work-related injury she sustained in 2009.  Second, payments made by the claimant’s health insurance through the employer do not constitute “payments under this chapter” and do not extend the statute of limitations.  Each ground was independently sufficient to deny her Claim. On appeal, the claimant challenged only one of these two grounds for dismissal by arguing that the Blue Cross/Blue Shield payments for her November 2011 medical care constituted payments “made under this chapter.”

HOLDING: The Court of Appeals held that it had no choice but to affirm the Commission’s decision.  Even if the claimant successfully challenged one ground for dismissal, the other ground for dismissal would still stand, since it was not challenged on appeal.  Therefore, the Commission’s Award was affirmed.

Claimant Failed to Produce Sufficient Evidence of a “Synergistic Effect” to Trigger Second Injury Fund Liability.

Winingear v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD78398 (Mo. App. 2015)

FACTS: The claimant sustained a work related injury to his neck in 2011 and was diagnosed with a neck strain.  He received treatment and settled with his employer for 4% PPD of the body, referable to the neck.  He then filed a Claim against the Second Injury Fund (SIF), complaining of stiffness and limited ROM in his neck as well as symptoms from prior injuries to his left shoulder, chest, and ribs that resulted from a work-related accident in 2010.  The claimant settled a Claim for his prior injuries for 20% PPD of the left shoulder and 3% PPD of the body, referable to the chest.

At a hearing for the 2011 injury, the claimant submitted Dr. Cohen’s report, which concluded that his pre-existing conditions combined with his primary injury to create a greater overall disability than their simple sum.  Dr. Cohen assigned a 15% load factor.

The ALJ found the claimant’s testimony and Dr. Cohen’s report unpersuasive and denied the Claim for failure to establish a “synergistic effect” between the primary injury and pre-existing conditions. Since the SIF is only liable for the amount attributable to the synergistic combination of disabilities, the claimant failed to establish SIF liability.  The Commission adopted the ALJ’s findings.

HOLDING: The Court of Appeals deferred to the Commission’s factual determination that the claimant’s testimony and Dr. Cohen’s report were not credible, holding that the Commission is free to reject even uncontradicted and unimpeached testimony if the Award shows that the Commission’s disbelief was the basis for the award. Since the Award was not against the overwhelming weight of the evidence, the Commission’s decision was affirmed.

Claim Against the Second Injury Fund Denied Because The Claimant Was PTD as a Result of the Last Injury Alone

Phillips v. S & H Transportation and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 08-010379

On February 13, 2008, the claimant, a truck driver, slipped and fell, sustaining an injury to his right shoulder which required 3 surgeries, the last being a right shoulder reverse total arthroplasty in 2010.  The claimant had pre-existing injuries, including a crush injury to his left knee in 1989 which was re-injured in a fall in 1994 and required a left knee arthroscopy, partial left medial meniscectomy, partial chondroplasty of the left patella and arthroscopy debridement of the left anterior cruciate ligament in 2011, after the primary injury.  The claimant also had a pre-existing cervical spine injury from 1996 that he testified gradually became worse after he stopped working and a pre-existing injury to his ribs from a motor vehicle accident in 1998.  After the primary injury, the claimant overcompensated with his left shoulder and received treatment for symptoms of pain and weakness from 2009 - 2013.

Dr. Yamaguchi placed the claimant at MMI in September 2010 with restrictions and rated the right shoulder at 70% PPD.  Dr. Poetz performed an IME in 2011 and testified that he would impose the same restrictions on the claimant for his primary injury alone, regardless of any pre-existing injuries or conditions.  Mr. England, the claimant’s expert, testified that the claimant was precluded from even sedentary employment due to his primary injury regardless of any pre-existing injuries.  Ms. Gonzalez performed a vocational evaluation on behalf of the employer and disagreed, testifying that the claimant was permanently and totally disabled due to a combination of all of the claimant’s medical conditions, including injury to his shoulder, knee, neck and chest.  She also testified that she primarily relied on the restrictions placed on the claimant by Dr. Poetz and Dr. Yamaguchi.  Based on this testimony, the ALJ found the claimant to be PTD from the last injury alone and imposed no liability on the Second Injury Fund.

On appeal, the Commission agreed and affirmed the ALJ’s Award.  It found the testimony of the claimant, Dr. Poetz, Dr. Yamaguchi, and Mr. England credible and the testimony of Ms. Gonzalez not credible because she failed to adequately support her opinion.  Therefore, the employer must pay PTD benefits.

Where Claims are Filed and Settled, a Settlement Agreement Does Not Constitute a Second Claim That Extends the Statute of Limitations

Treasurer of the State of Missouri-Custodian of the Second Injury Fund v. Couch, Case No. WD78312 (Mo. App. 2015)

FACTS: The claimant was initially injured and filed a Claim for Compensation against both the employer and the Second Injury Fund (SIF) in 2010.  She was injured again in 2011 and filed a Claim against both the employer and the SIF in 2011and an Amended Claim in 2012.  Both Claims were settled with the employer and dismissed against the SIF in March 2013.  In December of 2013, the claimant filed a new Claim for both injuries against the SIF.

The SIF argued that the new Claim was time-barred because it was not filed within 2 years after either injury or within 1 year after filing a Claim against the employer.  The ALJ issued an Award to the claimant, finding that her Claim was not time-barred because her settlement with the employer in 2013 constituted a “claim” that pushed back the statute of limitations.  The Commission affirmed, and the employer appealed.

HOLDING: The Court of Appeals disagreed, holding that the Claim was not timely filed against the SIF and reversing the Commission’s Award.  Where claims are filed and then settled, a settlement agreement does not constitute a second claim that perpetually extends the statute of limitations.

The Statute of Limitation to File a Claim Was Extended to 3 Years When an Out-of-State Employer Failed to File a Report of Injury

Small v. Red Simpson, Inc., Case No. WD78289 (Mo. App. 2015)

FACTS: The claimant was a Missouri resident when he accepted a job offer by telephone from an out-of-state employer.  He moved to Texas and began working, but he sustained a work-related injury in 1995 and returned to Missouri.  The claimant filed a Claim for Compensation in Texas and received payments through June 2009.  He then filed a Missouri workers’ compensation claim against the employer in September 2009, which was denied by both the ALJ and Commission as time barred.

The issue on appeal was whether out-of-state employers are required to file a Report of Injury within 30 days so the statute of limitations is not extended from 2 to 3 years.  Interestingly, the answer would not have affected the outcome of this claim, as it was filed only months after the last payment was made on the Claim.

HOLDING: The Court of Appeals held that the claimant’s injury was covered by The Missouri Workers’ Compensation Law, because it was a contract for employment entered into in Missouri.  Therefore, payments made by the employer from 1995-2009 were payments made “under this chapter,” because they were required under The Missouri Workers’ Compensation Law. The Court did not limit the obligation to file a Report of Injury to in-state employers.  Since the employer failed to file a Report of Injury and continued to make payments through June 2009, the September 2009 claim was timely.  The Commission’s decision was reversed and remanded.

Claimant’s Notice of Appeal Was Not Timely Received by the Commission, because Mailed without Correct Postage

Marciante v. The Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED102994 (Mo. App. 2015)

FACTS: The Commission awarded PPD for work-related injuries the claimant sustained in 2009.  However, the claimant wanted to appeal denial of PTD benefits, and Notice of Appeal was due by May 1, 2015. The claimant mailed the Notice to the Commission on April 30, 2015, but it was returned undelivered because he placed inadequate postage on the envelope.  On May 14, 2015, the claimant placed the original envelope in a new envelope with correct postage and mailed it to the Commission.  This time it was received by the Commission.  However, since the envelope was postmarked May 14, 2015, the Commission concluded that the Notice was untimely and dismissed the appeal.

HOLDING: The Court of Appeals considered whether the Notice was timely filed under the circumstances, since the original envelope was mailed before the May 1, 2015 deadline.  It noted that a filing received after the deadline is only considered timely if it was mailed by the claimant within the filing period, endorsed by the U.S. Postal Service, and delivered to the Commission.  Mail is presumed delivered under Missouri law if it was placed in an envelope with sufficient postage, correctly addressed, and placed in the mail.  The Court concluded that since the envelope mailed on April 30, 2015 did not include sufficient postage, there was no statutory presumption of delivery.  The Notice was therefore untimely, and the appeal was dismissed.

After settling her work injury for 26% disability of the body, the claimant proceeded to a hearing against the Fund.  At a hearing, the ALJ found the claimant did have preexisting psychiatric disability and preexisting disability in her back but did not find Dr. Koprivica’s opinion that the claimant had preexisting bilateral carpal tunnel syndrome persuasive.  The ALJ found that the claimant was PTD as of the time of the hearing but stated that she failed to show that she was PTD through a combination of her work injury and preexisting conditions, noting she continued to work following the work injury.  Therefore, the ALJ only imposed a load on the Fund.

On appeal, the Commission modified the Award and found that the Fund was liable for PTD benefits.  The Commission basically stated that the claimant’s expert’s opinion that she was PTD due to the work injury and her preexisting conditions was not contradicted (again, the Fund did not have a report).  Therefore, the Commission found no basis for rejecting those opinions and held that the claimant was PTD due to her preexisting conditions and work injury in combination.

Fund Liable for PTD Benefits Because Claimant’s Testimony and Experts Found More Credible

In Ponticello vs. D&D Distributors a/k/a Gray Eagle Distributors, Injury Nos. 10-054964 & 11-108606, the claimant sustained a compensable injury to his right shoulder in 2010 and underwent surgery.  He was released to full duty on December 13, 2010 by Dr. Burke, the authorized treating physician.  He then attempted to return to work as a delivery driver, but due to persistent symptoms, took a lighter job as a forklift operator.  In August 2011, the claimant was unloading beer when he slipped, grabbed a handrail and injured his left shoulder and elbow.  He later underwent surgery for cubital tunnel syndrome as a result of the second injury. Dr. Volarich, the claimant’s expert, assigned work restrictions referable to each of his two injuries. At the time of the hearing, the claimant was 60 years old.  He left school in 7^th grade and never obtained a GED. He also attended a special school as a child because he had learning difficulties.  The claimant was unable to perform math problems, and could not read a book or write a paragraph.  Mr. England, the claimant’s vocational expert, believed that he was not employable due to his physical problems and limited academic background.  Ms. Kane-Thaler, the employer/insurer’s vocational expert, believed the claimant was employable in a semi-skilled category and found multiple jobs that the claimant could obtain.  At a hearing, the ALJ found that the claimant was not PTD but did impose a load on the Second Injury Fund. 

On appeal, the Commission modified the Award and found that the claimant was PTD as a combination of his preexisting injuries and the last work injury.  The Commission stated that there was a battle of the experts but they found the claimant’s testimony regarding his complaints and limitations to be persuasive.  They also found Mr. England’s opinion more persuasive than Ms. Kane-Thaler’s opinion because of the claimant’s age, poor academic background, and lack of transferable skills. 

Commission Retains Jurisdiction Over Issues Left Open in the Stipulations

State ex rel. ISP Minerals, Inc., v. The Labor and Industrial Relations Commission, Case No. SC94478 (Mo. S. Ct. 2015)

FACTS: The claimant sustained an injury at work and filed a claim. He later settled his claim with the employer/insurer. The stipulations stated the parties would “leave future related pulmonary med. care open” and further provided for “[a]uth med. care through Dr. Jos. Ojile...” Subsequent to the settlement, the employer refused to pay for inhalers prescribed by Dr. Ojile because the employer’s physician determined those medications were not necessary. (The employer’s physician is not specified).

The claimant then filed a request for hearing with the Commission to determine whether the employer was required to pay for the inhalers. The Commission entered an Order determining that it had jurisdiction to determine the employer’s liability for future medical care. The employer then filed a writ asserting that the settlement agreement between the parties divested the Commission of jurisdiction over the issue of future medical care. Specifically, the employer cited several cases wherein the Missouri courts held that after the parties had settled their claims, the Commission no longer has jurisdiction over those claims. 

HOLDING: The Supreme Court of Missouri reviewed the cases cited by the employer and noted that those cases were inapplicable. Essentially, the Court stated that in none of those cases did the parties leave future medical open and later attempt to litigate that issue. In a fairly short opinion, the Court stated that the Commission retains jurisdiction over the claim to the extent that the stipulations left the claim “open.”

60 Day Rule Does Not Apply to Medical Fee Disputes

In Phillips vs. Allied Systems, Ltd. d/b/a Georgia Allied, Medical Fee Dispute No. 13-00712, Dr. Frevert, the authorized treating physician, sought reimbursement for medical expenses from the employer and submitted an affidavit detailing the expenses.  The employer objected to admission of the affidavit, stating that Dr. Frevert did not provide it to the employer at least 60 days prior to the hearing.  The ALJ and Commission both admitted the affidavit over the objection.  The Commission stated the requirement that the employer be provided a complete medical report at least 60 days prior to the hearing is inapplicable to proceedings to resolve medical fee disputes.  The employer also objected to the affidavit on the grounds that no foundation had been laid to establish Dr. Frevert was qualified to give an opinion on the fairness and reasonableness of the medical charges.  The Commission also disagreed with this argument noting that the doctor had been practicing for 24 years and believed his qualifications enabled him to opine as to the reasonableness and fairness of the charges.  Therefore, the employer was ordered to reimburse Dr. Frevert for treatment rendered.

Claimant Failed to Meet Burden on Injuries Which Occurred After Her IME

In Reynolds vs. Treasurer of Missouri as Custodian of Second Injury Fund, Injury Nos. 12-000434, 12-019268, 13-048443, the claimant sustained work injuries in May 2008, October 2011, January 2012, March 2012, and July 2013. The claimant saw Dr. Volarich in May 2011 for an IME, at which time the doctor addressed the claimant’s May 2008 injury to the left ankle but did not address the injuries that occurred in 2011, 2012, or 2013.  The claimant settled all of his claims with the employer/insurer and then proceeded to a hearing against the Second Injury Fund for his January 2012, March 2012, and July 2013 claims.  At the hearing, the ALJ basically found that the claimant failed to meet his burden of proof because he submitted no expert medical opinion regarding those injuries. On appeal, the Commission affirmed.

ALJ and Commission Can Disregard Wage Statement and Set Their Own Average Weekly Wage if They Believe that Would Be Fair and Just

In Holmes v. City of Farmington, Injury No. 10-049057, the claimant was a part-time firefighter who was injured when he was ejected from a firetruck. Prior to his injury, he occasionally filled in for full-time firefighters but part-time firefighters were not given scheduled hours so his work schedule varied. The claimant worked a total of 11 hours in the three months leading up to his work injury. At a hearing, the ALJ determined that the claimant was “actually employed” for less than two weeks and the wages of a similarly situated employee should be used. The ALJ then determined that the wages of a full time fireman should be used to determined the claimant’s average weekly wage. The ALJ awarded TTD and PPD benefits.

On appeal, the Commission agreed with the ALJ’s determination of the average weekly wage but disagreed with her reasoning. They noted that the claimant was clearly employed for two weeks prior to the work injury and therefore, the wages of a similarly situated employee should not be used. However, the Commission stated that Statute allows them broad discretion to set the claimant’s average weekly wage if there are exceptional facts presented. The Commission stated if the claimant’s actual wages were used in the 13 weeks leading up to his injury, his TTD rate would be at the statutory minimum of $40.00 per week. They believed this was an exceptional circumstance because $40.00 per week was not a fair and just amount and the claimant faced the exact same risks faced by full-time firefighters. The Commission agreed that his average weekly wage should be that of a full-time firefighter and awarded $15,109.32 in unpaid TTD benefits.

In Brown v. City of Columbia, Injury No. 11-049932, the claimant filed three separate claims, all of which alleged injury due to heat exhaustion. The claimant drove a trash truck, which did not have air conditioning, and he was also often required to wear a haz-mat suit for several hours. The heat indices on his alleged dates of injury were over 100 degrees. As a result of his heat exhaustion, he developed headaches and dizziness. He sought medical treatment on two of the three alleged dates of injury, but no medical evidence was introduced regarding the third alleged date of injury. At a hearing, the ALJ found that the claimant provided evidence of heat exhaustion on two of the three dates of injury and awarded 10% disability of the body for each of those two instances. On appeal, the Commission summarily affirmed.

Heat Exhaustion Not Compensable Due to Lack of Medical Evidence

In Fowler v. State of Missouri/Department of Corrections, Injury No. 09-065204, the claimant worked in a control/surveillance tower. On the alleged date of injury, June 27, 2009, she claimed the tower was extremely hot and a thermometer near her desk read 100 degrees. She began to feel lightheaded and testified she contacted her primary care physician on or shortly after June 27, 2009, and reported her symptoms. However, her primary care physician’s records showed the claimant called on June 29, 2009 for unrelated reasons and there was no mention of heat exhaustion. The claimant testified to a similar work incident of heat exhaustion on August 4, 2009 and her work log, which she filled out, did indicate the heat was making her sick. Her primary care physician’s records showed she did call and report sickness from heat on August 4, 2009 but she was not seen. The claimant saw Dr. Elliott on August 11, 2009 and was diagnosed with heat exhaustion based on her self-reported history. At a hearing, the ALJ denied compensation finding that the claimant may have sustained an injury on June 27, 2009 or August 4, 2009 but there was no contemporaneous objective evidence of heat exhaustion in the medical records. The Commission affirmed.

At a hearing, an ALJ found that Job Finders was the claimant’s employer in light of the fact that they did not timely answer the Claim for Compensation.  In other words, the ALJ found that whether an entity is an employer is a fact deemed admitted if the Answer is untimely.  Additionally, the ALJ found that the University of Missouri was a statutory employer because the University entered into a contract to obtain the claimant’s temporary employment, the University directed what he would do each day, supplied his uniform and had the right to terminate his employment.  Thus, the ALJ found that the University of Missouri and Job Finders were co-employers but in light of the fact that Job Finders did not have workers’ compensation coverage, imposed liability against the University of Missouri.  However, the ALJ did find that the University of Missouri was entitled to one-half of the total Award for permanent partial disability and unpaid medical expenses in contribution from Job Finders. On appeal, the Commission affirmed.

Fund Not Responsible For PTD Because Claimant’s Subsequent Injury Was Not Related to Work Accident

In Chambers v. Missouri Department of Highways & Transportation, Injury No. 07-124759,the claimant injured his neck and subsequently developed right arm, upper and lower back symptoms at work. He also had several pre-existing injuries. As a result of the work injury, he developed a small disc protrusion at C6-7 and a tiny herniation at C5-6.  He received authorized treatment with Dr. Coyle who treated him conservatively with injections and physical therapy and placed him at MMI on February 27, 2008, with respect to his low back.  In August  2008, for reasons not explained in the Award, the claimant returned to Dr. Coyle who recommended an MRI of the lumbar spine, which showed a tethered cord at L3 and a protrusion at L5-S1, which the doctor stated were not causally related to the work injury. Dr. Musich, the claimant’s expert, stated in his report that the claimant’s condition at L3-4 “could” have been caused by his work injury. Ms. Gonzalez provided a vocational evaluation at the claimant’s request on December 27, 2011 stating that the claimant was currently unable to compete on the open labor market, but did not specify as to when the claimant became unemployable. 

At a hearing, an ALJ found that the claimant sustained a work injury to his neck, right arm and back.  Dr. Musich merely found that the claimant’s subsequent L3-4 condition “could” be work related whereas Dr. Coyle explicitly stated that the condition was not work related.  Therefore, the ALJ found Dr. Coyle more credible and did not find the employer/insurer liable for the claimant’s L3-4 condition. The ALJ imposed permanent partial disability liability on the Fund for the claimant’s pre-existing conditions but did not award permanent total disability benefits.

Employer Responsible for Disc Bulge While Claimant Was Working For Them But Not Responsible For Herniation Two Years After Claimant Left Work

In Harris v. Penske Truck Leasing Co., Injury No. 11-110474, the claimant alleged an occupational disease to his neck as a result of his repetitive job duties with operating a fork truck which required him to look over his right shoulder 75 to 85% of each work day. An MRI in 2012 showed a disc bulge at C4-5. The claimant stopped working for the employer in 2012. Two years later, an MRI in 2014 showed a disc herniation at C4-5. The claimant obtained a report which connected a disc bulge at C4-5 to his work but did not connect the herniation.  Specifically, his expert found the disc bulge was work related because the claimant put mechanical pressure on his neck by repeatedly rotating it to the right, which narrowed the foramina on the right side of his neck and developed the disc bulge.

Conversely, the employer/insurer obtained a report which stated that the claimant’s neck conditions were not work related. The employer/insurer’s expert stated that looking backwards is a normal movement and therefore, cannot be the cause of the claimant’s neck condition. The employer/insurer’s expert specifically addressed the herniation and stated that given that the claimant stopped working in August of 2012, it was not work-related. At a hearing, an ALJ found in favor of the claimant and imposed liability for a disc bulge at C4-5 but not for a herniation.  Therefore, the ALJ found the employer/insurer responsible to provide treatment to cure and relieve the disc bulge, but not the herniation.  On appeal, the Commission summarily affirmed.

Employer Responsible for PTD After Claimant Worked 38 Years As Electrician and Unable to Return to Electrical Work Due To Lifting Restrictions

In Maloney v. Alpha Energy & Electric, Inc., Injury No. 10-048928, the claimant was injured at work when he was working on a receptacle box and was shocked by hot wires. The claimant had a high school education and completed vocational training as an electrician. His entire 38 year career had been spent working as an electrician.  Following the work injury, Dr. Hess performed a cervical discectomy and fusion from C5-6 to C6-7.  Thereafter, the doctor placed the claimant in the medium category for physical restrictions.  The claimant then obtained a report from Dr. Stuckmeyer who gave lifting restrictions of 20 pounds, no working overhead with either arm, and no extending his neck beyond the neutral position.  Mr. Cordray provided a vocational evaluation stating that the claimant could not return to work as an electrician, that his electrical skills did not transfer to other occupations, and that he was too old to be retrained. At a hearing, an ALJ found that the claimant was PTD as a result of the work injury.  On appeal, the Commission summarily affirmed.

Video Surveillance Not Admissible at Hearing Since Employer Did Not Comply With Continuing Request For Production

In Burlison v. Department of Public Safety, Injury No. 09-065236, the claimant sustained a work-related injury to her shoulder when a patient grabbed and twisted her arm. At a hearing, the claimant was found to be PTD as a result of the RSD in her arm. At the hearing, the employer/insurer did attempt to submit into evidence video surveillance which was taken of the claimant but the ALJ refused to consider that evidence in light of the fact that the video surveillance footage was never provided to the claimant’s attorney. The claimant’s attorney had previously sent a Notice of Deposition to the employer’s superintendent and the notice included a request for statements and any video taken of the claimant. The employer/insurer did not have any video at the time of the request and argued it did not have to produce the video since the video was not received until after the request had been made. The ALJ disagreed and stated the claimant’s attorney can request surveillance pursuant to a civil rule despite the fact that the workers’ compensation statute does not apply to videos. In this case, the claimant’s attorney did not forward a Subpoena Duces Tecum to the superintendent which is required by the civil rule, but the superintendent voluntarily appeared for the deposition and therefore, had a duty to produce any videos. While the superintendent may not have had the video at the time of the deposition, there is a continuing duty to produce video, so once the employer obtained the video, they were required to provide the claimant’s attorney the same.

Employer Responsible For PTD Benefits Because Claimant Was PTD Before Second Work Injury

In McDonald v. Midland Radio Corporation, Injury No. 07-106174, the claimant sustained injuries on May 22, 2007 and June 23, 2007. On May 22, 2007 the claimant fell over a cart containing boxes, and tore her left rotator cuff. The claimant requested medical treatment but it was not provided and she continued to work without accommodations until her June 2007 injury. On June 23, 2007 the claimant was lifting a radio when she sustained a partial rotator cuff tear of the left shoulder. Authorized treatment was then provided and the claimant eventually underwent surgery. She also sought psychiatric treatment and Dr. Hill diagnosed her with depressive disorder and generalized anxiety disorder, for which her May 22, 2007 accident was the prevailing factor. Conversely, Dr. Hughes, the employer/insurer’s expert, believed that the claimant’s depression disorder and generalized anxiety disorder were caused by a genetic component and not related to either of the work accidents. Specifically, Dr. Hughes diagnosed a pain disorder but believed that condition was caused by the claimant’s inner drive to remain disabled rather than to any actual physical injury. The claimant had an eighth grade education, low academic skills and had flunked the GED on several occasions. She worked the majority of her career in unskilled positions. At a hearing, the ALJ found that the claimant’s left shoulder condition and her psychological conditions were a result of her May 22, 2007 accident, and rendered her PTD. In light of the fact that the ALJ found that the claimant was rendered PTD as a result of the May 2007 accident alone, PTD liability was imposed solely against the employer/insurer and no liability was imposed on the Fund. On appeal, the Commission affirmed.

Unexplained (Idiopathic) Fall Compensable When Nature of Employment Causes Risk to Claimant

Gleason v. Treasurer of Missouri, Case No. WD77607 (Mo. App. Ct. 2015)

FACTS:  The claimant fell from the top of a railcar he was inspecting sustaining injury to his head, neck, right shoulder, clavicle and ribs.  The claimant had no memory of the circumstances leading up to the fall, the fall itself or the three days after the fall when he was hospitalized.  In other words, the claimant could not explain why he fell.

The claimant settled his claim against the employer/insurer and the Stipulation stated that he sustained a compensable injury in the course and scope of his employment.  The claimant then proceeded to a hearing and sought benefits from the Second Injury Fund.  At a hearing, the ALJ stated that because the claimant could not explain why he fell, the matter was not compensable as he could not prove that his injuries came from a risk or hazard which was related to his employment and which he was not equally exposed to normal non-employment life.  On appeal, the Commission affirmed.  The claimant appealed pro se.

HOLDING:  On appeal, the Appellate Court reversed and remanded the decision. Specifically, the Court noted that although the claimant could not explain why he fell, it was a known fact that his work exposed him to the risk of falling from a railcar, which is the activity that caused his injuries.  The Court further noted that such a risk is not one that he would have been exposed to in normal non-employment life.  Specifically, the Court stated that the focus is not on what the claimant was doing when he suffered his injuries, but rather should be what was the “risk source” of his injury.  While the claimant could not explain what activity he was engaged in when he fell, the Court found that he did satisfy his burden of showing that his “risk source,” falling from a railcar, was what caused his injuries and was a risk he was not equally exposed to in his normal non-employment life. The Court also looked to prior case law and distinguished this case fromMiller and Johme. In Miller, the claimant’s knee popped while crossing the street to his truck and inJohme the claimant fell off of her shoe. The Court stated that in those two cases, the claimants’ injuries stemmed from activities to which they would be equally exposed in non-employment life whereas in this case, the claimant was exposed to falling off a railcar, which is a risk he would not be equally exposed to in non-employment life. Therefore,Miller and Johme were correctly decided as non-compensable cases whereas this instance involved a compensable injury.

Of note, the Second Injury Fund argued that unless claimants are required to prove why they fell, then recovery for idiopathic injuries will be available.  The Court disagreed with that argument and stated that idiopathic injuries can be raised as an affirmative defense to bar compensability.  In other words, once the claimant has met his burden of proving that he sustained an injury in the course and scope of his employment, the employer/insurer or Fund can then raise the affirmative defense that the claimant’s injury was idiopathic.

Editor’s Note: The Court appears to be stating that if the claimant was injured by a risk to which he was not equally exposed to in normal non-employment life (e.g, falling off of a train car) then he does not need to explain why or how the injury occurred but if there is a question as to whether the claimant’s injury stemmed from a risk to which he was equally exposed in non-employment life (e.g, walking down the street) then he does need to explain why or how the injury occurred.

Claimant’s Fall Down Steps Not Compensable

In Cotter v. Nitelines USA, Inc., Injury No. 12-046083, the claimant worked on occasion at the VA Hospital. The claimant testified that on April 29, 2012, his date of injury, he worked from 4:00 P.M. to midnight. He testified his shift had ended and he was leaving the VA Hospital and walking to the parking lot area (which was not owned by the employer) to return home. While descending the staircase of the parking lot, the claimant testified that he missed a step because it was dark. He fell and fractured his left ankle. 

At a hearing, the claimant was confronted with evidence that it was 4:00 P.M. when he left the VA Hospital on his date of injury and he conceded it would not have been dark at that time. The ALJ denied compensability on several grounds. First, the ALJ held that because the claimant injured himself after he had completed his shift, that his injury did not occur “during a single work shift” as required by Statute. Additionally, the ALJ found that the extension of premises doctrine did not apply in this case, because the claimant fell in a parking lot which was not owned or controlled by the employer. Finally, the ALJ found that the claimant’s fall on the steps was a risk to which he was equally exposed in his normal non-employment life.

On appeal, the Commission affirmed but largely disagreed with the ALJ’s reasoning. First, the Commission stated that the claimant does not necessarily have to be on the clock to sustain a compensable accident. Second, the Commission stated that the extension of premises doctrine may be available to employees, such as the claimant in this case, who are working on a temporary or loaned basis at a premises other than that of their immediate employer. The Commission stated that an employee whose work entails travel away from the employer’s primary premises is considered to be in the course of employment during the trip except when on a distinct personal errand. The Commission did state that when employees are working on a temporary or loaned basis at a premises other than that of their immediate employer, the application of the extension of premises doctrine would be more complicated, but the Commission did not definitively state whether the extension of premises doctrine would in fact apply to such instances. However, the Commission affirmed on the basis that the claimant was confronted with time sheets he filled out and he agreed on cross-examination that it would not have been dark at 4:00 P.M. when he was descending the steps. Additionally, the Commission noted that there is no mention of a workplace injury or any fall on a stairway in the claimant’s earliest medical treatment records. Therefore, the Commission affirmed and compensability was denied

Claim Denied Because Claimant Could Not Identify Specific Activity that Caused His Injury

In Barrientos v. Ben Hur Construction, Injury No. 10-108268, the claimant was an iron worker in charge of a project to build a mezzanine.  In order to accomplish the job, he was required to manually move all construction materials into the building.  He stated that he had some pain in his low back for at least one week leading up to December 28, 2010 but had no leg pain.  On December 28, 2010, the alleged date of injury, he was cutting screens all day, which required lifting and twisting. He completed the task without feeling anything out of the ordinary in his back or legs.  However, he then went home, went to bed and woke up in the middle of the night with excruciating pain in his back and left leg.  He was seen at St. John’s Mercy Medical Center on December 29, 2010 and it was noted that his “pain was associated with no known injury (iron worker so does lots of heavy lifting at work but no specific event).”  In his deposition, the claimant testified that he could have injured his back by erecting the steel, doing everything by hand, unloading the truck, or moving the steel into the building by hand.  At a hearing, he testified that he was injured due to eight hours of cutting and stacking security screens.  The ALJ denied compensability finding that the claimant alleged an accident, and in order for him to have a compensable accident, he must identify by time and place of occurrence the event or strain which gave rise to his complaints. In light of the claimant’s inability to point out when or what activity caused his low back complaints, the ALJ denied compensability.

On appeal, the Commission affirmed but stated that they believed it was possible for repetitive lifting throughout a single work shift to constitute a singular event or strain for purposes of proving an accident.  However, they believed that in this case, the claimant failed to show any identifiable injury as a result of his work duties on December 28, 2010.

Claimant Slip/Fall While Walking in Public Street on Lunch Break Denied

In Obic v. St. Louis Antique Lightning Company, Injury No. 11-044808, the claimant was at work when he left for his 30 minute lunch break and walked across the street to eat at a restaurant. Upon returning from the restaurant, while walking in the middle of a public street, a strong gust of wind hit the claimant and he fell over, sustaining injury to his right arm. At a hearing, an ALJ denied compensability finding that the injury did not arise out of and in the course of the claimant’s employment. Specifically, the ALJ found that the claimant chose to leave for lunch and was not directed by his employer to leave the premises for lunch. Therefore, the ALJ found that the claimant was not injured by any condition of his employment.

On appeal, the Commission agreed with the ALJ and stated that nothing about the claimant’s employment required him to leave the workplace to eat lunch. Also, there was no indication that his employment was located in an area more prone to wind gusts than elsewhere. Therefore, the Commission held that the claimant’s injury arose from a risk unrelated to the employment and to which he was equally exposed in normal non-employment life.

Claimant, a Traveling Surveillance Employee, Sustained Compensable Fall in Public Bathroom

In Eberhard v. G4S, Injury No. 11-090670, the claimant, a traveling surveillance employee, was traveling for work when she stopped to use the restroom in a McDonald’s. While in the restroom, a heavy toilet dispenser fell on her right shoulder and face, injuring her. At a hearing, an ALJ found the matter compensable.

On appeal, the Commission found that the claimant’s injuries arose from a risk related to her employment activities because she was required to use public restrooms due to the unique nature of her work, in that she had to travel far distances. Additionally, the Commission stated that use of public restrooms exposes people to risks greater than using private restrooms. While the Commission did state that people generally use public restrooms in their normal non-employment life, the Commission stated that the nature of the claimant’s work exposed her to a greater frequency of using public restrooms and therefore, she was unequally exposed to this risk. Finally, the Commission stated that simply because the claimant was not on the employer’s premises did not mean that her claim did not arise out of and out of the course of her employment. Specifically, the Commission stated that the claimant sustained injuries while she was on the job, and therefore, the injuries arose out of the course of her employment.

Returning to Work Does Not Mean Claimant is Employable on Open Labor Market

Archer v. City of Cameron, Case Nos. WD77320 & 77321 (Mo. App. Ct. 2015) 

FACTS: The claimant sustained a herniated disc and radicular symptoms in the course and scope of his employment in 2008. He worked light duty from 2008 through 2010, during which time he worked within his restrictions laying concrete but did not do repetitive heavy lifting as he had done prior to his work injury. During his time on light duty, he was accommodated by his employer, as he was allowed to take breaks whenever he wanted, many of his co-workers helped him perform his duties, he no longer performed any heavy lifting, and he frequently took breaks in his truck to alleviate pain. In 2010 he sustained a sprain/strain to his back while in the course and scope of his employment.

At a hearing, an ALJ found the claimant was PTD and assessed 35% disability from the 2008 injury and 7.5% disability from the 2010 injury. PTD benefits were imposed on the Fund. The Fund appealed to the Commission arguing that the claimant was already PTD as a result of the 2008 injury. The Commission agreed with the Fund, finding that while the claimant continued to work after his 2008 injury, he was heavily accommodated and did not perform work at the level “customarily performed by the average person engaged in such work.” Therefore, the Commission shifted all liability to the employer/insurer. The employer/insurer appealed.

HOLDING: The Court of Appeals affirmed and agreed with the Commission’s finding that although the claimant returned to work following his 2008 injury, he could still be found PTD as a result of that injury, especially in light of the multiple accommodations he was provided when he returned to work.

Commission Awards TTD Benefits While Claimant Recovers From Injury and is Working For FriendBut Not the Employer

In Gamble v. Chester Bros. Construction Company, Inc., Injury No. 08-087820, the claimant tore his rotator cuff and underwent surgery. It is not explicitly stated in the Award but it appears the claimant worked for the employer/insurer as a laborer. The claimant was unable to return to work for his employer following the work injury but worked five months for a friend doing “odd jobs.” The claimant testified that 90% of the work he did for his friend was simply supervising other employees. The ALJ awarded TTD benefits for the period that the claimant worked those “odd jobs.”

On appeal, the employer/insurer argued that the claimant should not be entitled to TTD benefits for the periods that he worked between the time that he was injured and the time he was released from care in September 2011. The Commission disagreed with this argument, and stated that the question is the claimant’s earning capacity, not his actual earnings when determining whether he is entitled to TTD. The Commission stated that all of the claimant’s jobs during the period which he was awarded TTD were obtained through his acquaintance, and therefore, were not obtained through competition in the open labor market. Therefore, they agreed with the ALJ and found that the claimant was not disqualified from receiving TTD benefits for those time periods.

Contract Waiving Workers’ Compensation Benefits Signed by Claimant Did Not Establish Claimant Refused a Drug Test Because the Contract Did Not Contain Language to That Effect

In King v. American Employer Group 3, Injury No. 13-063318, the claimant had sustained a pre-existing injury in 1994 for his back. In 2011, he was diagnosed with fibromyalgia. The claimant began using marijuana, which he testified was to cope with his fibromyalgia and ongoing symptoms from the 1994 injury. On August 10, 2013, while walking at work, the claimant slipped and fell, injuring his tailbone. The employer requested the claimant submit to a drug test that day and told him that if he tested positive for drugs, his workers’ compensation claim “may not be handled.” The employer testified that the claimant refused to be tested. The employer testified that therefore, they provided the claimant with a document which stated that the claimant gives up his right to file a workers’ compensation claim and will be responsible for all medical expenses. Additionally, the document stated that the claimant waives all rights to future claims against the employer that may arise from the work accident. However, the contract did not state that the claimant’s signature was proof that he refused to take a drug test. The employer testified that they offered the claimant this contract as an alternative to taking the drug test, the claimant opted to sign the contract, and that was proof that the claimant refused to take the test. The claimant testified that he told the employer he may test positive because of marijuana he used prior to the injury but denied refusing to take a drug test.

At a hearing, an ALJ found that the claimant’s injury was compensable. With respect to the drug issue, the ALJ found the claimant’s testimony more credible than the employer’s testimony, because the release which the claimant signed on his date of injury contained no reference to a drug refusal and the employer could not explain why such a clause was not included in the release. The employer/insurer appealed and the claimant also appealed, asking for the costs of the proceedings on the basis that his claim was defended without reasonable grounds.

The Commission affirmed the decision, and stated that they would not yet determine the issue of imposing costs of the proceedings.

Non-Forensic Drug Tests Are Not Persuasive Enough

In Hertzing v. Beck Motors, Inc., Injury No. 09-025872, the claimant was injured on April 14, 2009, when he slipped and fell. The claimant received treatment at St. Mary’s Health Center on April 16, 2009, at which time a urine drug screen was positive for cocaine metabolites. Documentation of St. Mary’s Health Center stated that “testing for above analytes was performed only for medical purposes on urine using screening methodology. Occasional false positives and negatives due to interfering substances can occur. Confirmation testing is available by request.” The claimant testified that he did not use cocaine of his date of injury and provided testimony from an expert toxicologist, Dr. Vasiliades, who testified that the claimant did have an inactive metabolite in his system which was produced by the body breaking down cocaine, but it had no pharmacological effect. The doctor further testified that the window for detecting benzoylecgonine in the urine is around three days and is not an illegal drug. The ALJ did not award a reduction in benefits pursuant to the St. Mary’s drug test.

On appeal, the Commission affirmed. Regarding the drug penalty, the Commission was not persuaded by the non-forensic drug test results from St. Mary’s Health Center, and instead credited the claimant’s testimony that he did not use cocaine at work or in the few days prior to his work injury.

Claim Filed Against Fund Not Time Barred Because Claim Filed Within One Year of Settlement With Employer/Insurer

In Couch v. Treasurer of Missouri, Injury No. 11-047929, the claimant sustained injuries on June 22, 2011, to her head and neck. She filed a Claim for Compensation against the employer/insurer and the Fund on July 12, 2011. Subsequently, she settled with the employer/insurer on March 28, 2013. When the claimant settled her June 22, 2011 claim against the employer/insurer, the Second Injury Fund was dismissed by the claimant. The claimant then filed a new claim against the Fund on December 5, 2013, nine months later. At a hearing, an ALJ noted that a claim against the Second Injury Fund must be filed within two years after the date of injury or within one year after the claim is filed against the employer/insurer, whichever is later. The ALJ stated that her claim against the Fund was not time barred because her claim against the Fund was filed within one year after her settlement of the claim against the employer/insurer. The ALJ found that filing a settlement involving the claimant and the employer/insurer constitutes a “claim” and therefore, she filed her claim against the Fund within one year of settling her claim against the employer/insurer, so her claim against the Fund was not time-barred. On appeal, the Commission affirmed.

Employer/Insurer Responsible for Additional Treatment to Cure and Relieve Effects of Work Injury Only if Claimant Requests it

In Aufdenberg v. Drury Inn, Inc., Injury No. 08-115098, the claimant sustained an injury to his left shoulder on December 16, 2008. He received authorized treatment with Dr. Taylor and physical therapy was recommended. The claimant reported at physical therapy that he was 90% - 95% improved but still had some range of motion problems. On February 13, 2009 the claimant requested that Dr. Taylor return him to full duty, which the doctor did. After returning him to work, the claimant’s shoulder immediately began to bother him. The claimant then went to Dr. Miller on November 30, 2009 for treatment on his own. In May 2010 the claimant contacted the adjuster and demanded additional treatment, which was provided with Dr. Nogalski. Eventually, the claimant submitted for an IME with Dr. Lehman, who did not recommend any further treatment to address the work injury, but did refer the claimant back to Dr. Miller for treatment under his private insurance for arthritis. Thereafter, Dr. Miller performed surgery to repair a torn labrum. At a hearing, the ALJ sided with the claimant and found that his work injury was the prevailing factor in his torn labrum. The ALJ also found that the employer/insurer was liable for the costs of the surgery performed by Dr. Miller in 2012. However, the ALJ did not impose liability on the Employer/Insurer for the medical expenses accrued when he treated with Dr. Miller on his own in 2009. On appeal, the Commission summarily affirmed.

MISSOURI WORKERS’ COMPENSATION

CASE LAW UPDATE

OCTOBER 2014 - DECEMBER 2014

Claim Denied Due to Inconsistencies Between Claimant’s Testimony and the Records

In Gower v. Technical Plastics, Injury No. 05-135562, the claimant alleged that on December 1, 2005 he was pushing a large container when he slipped and fell to the ground, sustaining injury to his back. This incident was not witnessed but the claimant did report it to his supervisors. Evidence at the hearing showed that the claimant was incarcerated from May 1998 - April 2005, and during his incarceration he sustained at least five separate injuries to his back. He treated with several providers for his back from 2001 - August 31, 2005, a mere three months prior to his alleged injury. The records further showed that at the first medical visit following the alleged injury, which occurred on December 7, 2005, the claimant reported that his symptoms were the product of being beaten while he was incarcerated and there was no mention of any work injury sustained on December 1, 2005. However, at subsequent medical visits the claimant reported his symptoms were the product of a work injury that occurred on December 1, 2005. He denied any prior back issues.

The claimant’s testimony at the Hearing contained many inconsistencies and was contradictory to the objective evidence. His attorney produced a report from Dr. Musich which stated that the claimant’s work injury was the prevailing factor in his condition, and he assessed 50% PPD of the body. Alternatively, the employer/insurer’s expert, Dr. Lange, felt that the claimant had 25% PPD of the body, but there was no way to suggest that his disability was referable to the alleged work incident. The ALJ determined that Dr. Lange was more credible and also believed that the claimant was not credible or persuasive. Therefore, the ALJ ruled in favor of the employer/insurer finding that the claimant failed to meet his burden. On Appeal, the Commission summarily affirmed.

Repetitive Motion Claim Denied Because Employer/Insurer’s Expert Found More Credible Because He Reviewed More Records

In Anderson v. New World Pasta, Injury No. 11-107122, the 66-year old claimant worked for the employer from September 1991 - January 2012, and for the last ten years of her employment she worked as a packer. Her job duties as a packer required her to lift 50 - 60 pound rolls of plastic film from floor to shoulder level, approximately 3 - 4 times a day; load blank boxes from pallets to shoulder level that weighed a few pounds; use her right arm to wind/pump an operating jack; and lift partially filled boxes if the packing machine did not fill them properly, which occurred 0 - 4 times per shift. If the packing machine was running properly, the claimant simply stood and observed it.

The claimant alleged injuries to her right shoulder as a result of her repetitive job duties. Additionally, she had a separate claim, which was not part of this case, wherein she developed right long and ring finger triggering. The claimant was initially seen by Dr. Schlafly for her hand complaints, who recommended that she be seen by an orthopedic shoulder specialist for her right shoulder complaints, but based on the claimant’s description of her job duties, he did opine that her job duties were the prevailing factor in her need for right shoulder treatment. Thereafter, she treated with Dr. Rende, who reviewed a description of the claimant’s job duties both from her and from her employer, and ultimately diagnosed the claimant with severe degenerative osteoarthritis, which he believed had been present for 10 - 15 years. Dr. Rende did not believe that the claimant’s job duties were the prevailing factor in causing her condition.

Subsequently, the claimant obtained an MRI of the right shoulder on her own, which showed severe arthritic changes; severe tendinopathy with partial thickness tearing, as well as a full thickness supraspinatus tear; and longhead biceps tendinopathy with tearing. Both Dr. Schlafly and Dr. Rende reviewed the MRI and reiterated their prior opinions regarding causation. Specifically, Dr. Rende stated that shoulders, as opposed to weight bearing joints such as knees and hips, wear out as a result of the aging process and typically tear slowly and steadily. The tears are not the result of an injury but rather due to the normal process of aging. Additionally, evidence was introduced that the claimant had a history of pre-existing right shoulder complaints and received a settlement for 7.5% PPD of the right shoulder referable to a 1997 accident, as well as 7.5% PPD of the right shoulder referable to a 2006 injury.

At a Hearing, an ALJ noted that Dr. Rende took a much more detailed work history from the claimant, and also reviewed a job description provided by the employer, whereas Dr. Schlafly relied solely on the claimant’s description of her job duties. Additionally, the ALJ noted that Dr. Rende was an orthopedic surgeon, whereas Dr. Schlafly was a hand surgeon. The ALJ found Dr. Rende’s opinion more credible and persuasive, and held that the claimant failed to meet her burden and denied compensability. On Appeal, the Commission summarily affirmed.

Carpal Tunnel Claim Denied Because Employer/Insurer’s Expert More Credible Because He Reviewed the Claimant’s Job Duties

In Almany v. Union Electric Company, Injury No. 10-025613, the claimant, a lubrication technician, alleged recurrent carpal tunnel syndrome as a result of his job duties. He had bilateral carpal tunnel syndrome in 2005 for which he underwent releases and received a settlement. In 2008 or 2009 the claimant was diagnosed with high blood pressure and Type II diabetes, for which he was placed on medication. When the claimant began treating for his recurrent bilateral carpal tunnel syndrome, he did not report his blood pressure or diabetes to any of the treating physicians, and even denied those conditions to one provider. At a Hearing, the employer-insurer introduced DVDs of the claimant’s work duties. The first DVD was an 11 minute clip showing the work that the claimant performed three days per week. On those three days, the claimant performed the work depicted in the DVD for all eight hours of his work shift. In that 11 minute period, the claimant used his hands for a total of 65 seconds, which consisted of holding a flashlight to view oil levels and raising a dipstick to check oil levels. The second DVD showed the work that the claimant did the other two days a week, and demonstrated that on those days he would spend approximately 32 minutes and 35 seconds performing hand intensive duties.

The employer’s general supervisor, who was previously employed as a lubrication technician, testified that the claimant would use his hands 20% or less during the day based on his personal experience and past knowledge. Dr. Ollinger testified as the employer/insurer’s medical expert, and believed that the claimant’s job duties were not the prevailing factor in his carpal tunnel syndrome, but believed his condition was referable to his underlying diabetes. Conversely, Dr. Volarich testified that the claimant’s job duties were the prevailing factor in his carpal tunnel syndrome, as he had hand intensive duties. The ALJ noted that when Dr. Volarich rendered his opinion, he did not review the DVDs of the claimant’s job duties. The ALJ found Dr. Ollinger more persuasive and denied compensability. On appeal, the Commission summarily affirmed.

Pro Se Claimant Awarded Only 15% Disability of Shoulder Because His Expert’s Rating Did Not Distinguish Between Pre-existing and Current Disability 

In Tillis v. City of St. Louis, Injury No. 08-009726, the claimant was working as a police officer when during an arrest he sustained an injury to his right arm, shoulder and hand in 2008. The employer/insurer picked the matter up as compensable and provided treatment. The claimant had a prior right shoulder injury in 2005.

At a Hearing, the claimant represented himself pro se. Hearsay objections were made to the majority of the medical evidence that the claimant attempted to introduce, and therefore there was no evidence with respect to permanency admitted at the Hearing. The ALJ noted that because the claimant did not offer competent evidence regarding the distribution of disability resulting from his 2005 injury and his 2008 work injury, his PPD Award would be somewhat limited. The ALJ did find that the claimant sustained a compensable injury based on the fact that the employer/insurer accepted liability in the case and the claimant received authorized treatment, including surgery. Ultimately, the ALJ awarded 15% PPD of the right shoulder. On Appeal, the Commission affirmed.

Video of Claimant’s Job Duties Must Be an Accurate Representation 

In Buchanan v. SRG Global, Injury No. 12-103444, the claimant alleged bilateral rotator cuff tears as a result of his repetitive job duties. The claimant was employed with the employer for 32 years both as a “racker” and as a “lead person.” The racker job involved lifting plastic car parts that weighed several ounces up to 5 pounds. She had to attach the parts to racks. The racker job required overhead work about 33% of the time. The lead person job involved paperwork and administrative duties, such as counting the number of racks that were filled. In May 2009, she worked as a racker and a lead person. She worked exclusively as a racker from 2010 - 2012. She was scheduled to work 40 hours a week, but her pay stubs reflected that she frequently worked numerous overtime hours.

The employer/insurer’s expert, Dr. Emanuel, initially found that the claimant’s work was the prevailing factor in her bilateral shoulder problems but changed his mind after watching a video supplied by the employer depicting the claimant’s job duties. After review of that video, Dr. Emanuel believed that the claimant worked at a very leisurely pace and her job duties were not the prevailing factor in her condition. Conversely, Dr. Woiteshek, the claimant’s expert, believed that the claimant’s job duties were the prevailing factor in causing her shoulder problems. Specifically, Dr. Woiteshek noted that there was a vast difference between lifting near the body and lifting with the arms extended, as the claimant was required to do.

At a Hearing, an ALJ found Dr. Emanuel more persuasive, and therefore, found that the claimant’s job duties were not the prevailing factor in her injuries, and denied compensation.

On appeal, the Commission reversed and found her injuries compensable. Specifically, the Commission stated that they also reviewed the video of the claimant’s job duties provided to Dr. Emanuel, and disagreed with his assessment that she worked at a leisurely pace. Additionally, they stated that the claimant’s co-worker testified that the employer could run the line at various speeds so it was unclear whether the video accurately represented the typical work the claimant performed or the pace at which it was performed. Therefore, the Commission found Dr. Woiteshek more persuasive and found that the claimant’s job duties were the prevailing factor in her shoulder problems.

Without Expert Testimony Claimant Can Not Establish Causation

In Fineman v. Stan Koch & Sons, Injury No. 13-078932, the claimant was employed as a commercial truck driver. At the hearing, his deposition, and in his recorded statement, the claimant stated that on October 18, 2013 he began to feel pain in his left arm. At his deposition, the claimant stated that he believed he hurt his arm either while pulling the fifth wheel or while raising and lowering the landing gear. At trial, he testified he did not recall what caused the pain. In his recorded statement, the claimant stated he had no clue if he did something to acutely injure his arm or if his condition happened over time, but stated he could not think of a specific incident that caused his symptoms. The claimant treated on his own. His medical records indicated that he frequently denied any traumatic event when asked by providers. It was not until a December 5, 2013 visit to Dr. Wells, approximately three months after the date of injury, that the doctor noted the claimant did have a job as a truck driver with repetitive motions. However, Dr. Wells did not indicate an exact diagnosis. Neither the employer/insurer nor the claimant obtained a causation report.

At a Hearing, the claimant asserted that he either suffered an accident or an occupational disease, and that the Division of Workers’ Compensation could, and should, determine if the injury was compensable despite not having any expert testimony, particularly since the employer/insurer refused to provide treatment. Conversely, the employer/insurer argued that the claimant failed to meet his burden, as he did not provide an expert causation opinion. The ALJ agreed with the employer/insurer and found that the claimant failed to meet his burden to show that his symptoms were causally related to a work accident or occupational disease. On Appeal, the Commission summarily affirmed.     

Claim Compensable Because Lease Grants Exclusive Use of Parking Lot

Scholastic, Inc. v. Viley, Case No. WD77546 (Mo. App. Ct. 2014)

FACTS: At the end of his shift, the claimant was walking outside of his employer’s building and as he walked across the adjacent parking lot heading for his vehicle, he slipped and fell on snow and ice, sustaining an injury to his right knee. At a Hearing, the claimant testified that he always parked in the same parking lot, which was across the road from his employer. Evidence demonstrated that the employer did not own the parking lot where the claimant’s accident occurred. Instead, the employer leased the parking lot in which the claimant fell. The lease included a provision granting the employer the “exclusive use for parking of tenants’ automobiles.” The ALJ found that the claimant’s injury was not compensable. On Appeal, the Commission reversed, finding the injury was compensable.

HOLDING: On Appeal, the Court stated that the Extension of Premises doctrine applies, and an injury is compensable, if the area in which the accident occurs is owned or controlled by the employer. The Court was particularly persuaded by the fact that the lease granted the employer the exclusive use of the parking lot. Therefore, they found that the employer did control the parking lot and as such, the claimant’s injury arose out of and in the course of his employment.

Claim Compensable Because Employer Exercised Power by Removing Snow From the Parking Lot it Leased

In Beem v. Missouri Department of Social Services, Injury No. 10-005912, the claimant was injured when she fell on her employer’s parking lot sustaining an injury to her ankle. Her employer leased its building and the parking lot. The parking lot in which the claimant fell was used by other employees and was adjacent to the employer’s building. The lease contained language granting the employer 23 parking spaces and stating that the lessor agrees to direct and pay for removal of snow and ice from the sidewalks and parking area. Evidence showed that while the lessor was obligated to remove the snow on the parking lot, they often did not do so and in such occasions, the employer would remove the snow either on its own or by hiring a third party. Prior to her date of injury, the claimant arrived at the employer and found the parking had not yet been cleared of snow. The claimant then contacted the lessor who stated he had no one under contract to clear the snow. Therefore, the claimant contacted a third party, Crain’s, to remove the snow. Subsequently, the lessor did contract with Crain’s to remove snow from the parking lot, who cleared the lot after the snow event which occurred just before the claimant’s injury. On that occasion, the third party removed and piled the snow onto the sidewalk, which subsequently melted onto the parking lot and froze to form the black ice patch on which the claimant fell.

At a Hearing, an ALJ determined that the claimant’s injury was not compensable because it did not arise out of and in the course of scope in her employment because the employer did not own or control the parking lot in which the injury occurred.

On Appeal, the Commission reversed. The Commission began by stating that the test to determine whether the claimant was injured in the course and scope of her employment was 1) Whether the injury producing accident occurred on the premises owned or controlled by the employer; 2) Whether that portion of such premises is part of the customary, or . . . usual and acceptable route or means used by workers to get to and depart from their places of labor; and 3) That portion of such premises was being used by the injured worker to get to or depart from a place of labor at the time of the injury. The Commission determined that all three prongs were met.

The Commission was persuaded by the fact that the lease contained no language which reserved exclusive control of the parking lot to the lessor. Also, the lease did not contain language which prohibited the employer from removing snow and ice from the parking lot area on its own. Additionally, the Commission stated that the employer exerted control over the lot by removing snow from the lot and contracting a third party to clear the parking lot on at least one occasion.  Therefore, the Commission found that the employer controlled the parking lot. The Commission further noted that the black ice that the claimant slipped on was formed due to the manner in which the snow was cleared from the parking lot and therefore, she would not have been equally exposed to that hazard in her normal non-employment life. Consequently, the Commission found that the claimant’s injury was compensable.

Safety Violation by Employer Only Results in a Penalty if the Violation Caused the Claimant’s Injury

In Horne v. Price Gregory, Injury No. 09-106524, the claimant was a truck driver who was injured when his tractor trailer was involved in a motor vehicle accident on October 7, 2009. The claimant could not recall whether the accident occurred because of fatigue or because the load he was transporting shifted. Between July 12, 2009 and October 4, 2009, a 12 week period, the claimant averaged a little over 86 hours of work per week. Additionally, from October 4, 2009 through the claimant’s date of accident, October 7, 2009, he had worked 36 hours and had worked 76 hours the week prior, for a total of 112 hours over the course of 10 days. This was in clear violation of Statute which states that drivers shall not be allowed to drive 70 hours or more during 8 consecutive days.

Immediately following the incident, the claimant experienced cervical spine symptoms. He did not begin experiencing symptoms in his right arm until November 1, 2011, when he turned his neck and felt a sharp pain radiating down his arm. The employer/insurer did provide treatment for the claimant’s right arm symptoms until their expert, Dr. Kitchens, opined that the claimant’s right arm symptoms were not caused by his cervical injury and therefore, not related to the work injury. The claimant was placed at MMI on April 29, 2010.

At a Hearing, the main issues were compensability of the claimant’s right arm and whether the employer/insurer committed a safety violation.

With respect to the compensability of the claimant’s right arm, the ALJ found Dr. Koprivica, the claimant’s expert, more credible and determined that the claimant’s right arm symptoms were the product of the claimant’s injury.

With respect to whether the employer/insurer committed a safety violation, the claimant asserted that he should be entitled to a safety violation because his employer allowed him to drive for more than 70 hours during 8 consecutive days. At the Hearing, Mr. Ezell, the safety manager for the employer, testified that the regulation on number of hours drivers could work were designed to prevent accidents. Based on that testimony, the ALJ determined that the claimant was entitled to a 15% increase in all benefits paid based on violating a safety Statute.

On Appeal, the Commission affirmed the decision except it disagreed with the ALJ’s imposition of a 15% increase in benefits pursuant to a safety violation. Specifically, the Commission did not believe that the employer’s allowing the claimant to drive in excess of the maximum hours permitted by Statute caused the claimant’s injuries. The Commission noted that the claimant remembered very little about the accident and he testified that the accident occurred either from the load shifting or the fact that he was tired from working and his reaction time was slowed. As such, the Commission believed that it was speculative to state that the claimant’s injury was a result of the employer’s violation of the Statute.

Under Old Law Employer Can Not Terminate Benefits on its own Because Claimant Refused to Submit for Medical Examination

SSM Healthcare v. Hartgroves, Case No. WD77560 (Mo. App. Ct. 2014)

FACTS: The claimant injured her back in 2001 while lifting a 300 pound stroke patient. She proceeded to a hearing, at which time an ALJ found that she was PTD. On appeal, the Commission affirmed and awarded PTD benefits. Thereafter, the employer scheduled the claimant for a medical examination which she did not attend. The employer/insurer then suspended her benefits. The claimant filed a Motion to Compel the employer to comply with the Commission’s Final Award. The employer filed a response, along with a request that the Commission compel the employee to attend a medical examination, and asserted that it was justified in terminating the claimant’s benefits because she failed to appear for the previously scheduled examination. The Commission denied both parties’ Motions and stated that the employer/insurer is not authorized to suspend benefits based on alleged failure to attend a reasonable medical examination and found the claimant was still entitled to benefits. The employer appealed.

HOLDING: On Appeal, the Court noted that Statute does state that if the employee refuses to submit to an examination, compensation shall be forfeited. However, the Court also noted that the Statute states that the Commission has the authority to modify an Award due to a change in the condition of the injured worker. Ultimately, the Court believed that the employer cannot unilaterally decide the claimant is no longer entitled to benefits, regardless of whether they refuse to submit to an examination, as that decision must be made by the Commission. Notably, the Court did state that the injury occurred in 2001, and therefore, the mandate passed in 2005 that the workers’ compensation Statute be strictly construed did not apply in this case.

Claim Not Compensable Because Accident Only a Precipitating Factor in Causing the Claimant’s Hypertensive Crisis

In Malam v. State of Missouri/Department of Corrections, Injury No. 11-062949, the claimant was employed as a prison guard. On August 12, 2011 the claimant, along with two co-employees, subdued a prisoner, taking the prisoner to the ground and then handcuffing him. Immediately thereafter, the claimant was walking the prisoner back to a housing unit when he began to notice shortness of breath and felt like his lungs were filling up. The claimant’s co-employee testified that he did not notice anything wrong with the claimant at the time of the altercation or while walking with the prisoner. After escorting the prisoner, the claimant went into his office to get a drink and began to spit up blood. An ambulance was called and the claimant eventually lost consciousness, which he regained one week later. The majority of the medical records stated that he fell and someone fell on top of his chest. However, the claimant testified that no one landed on his chest at any point during the altercation.

The employer/insurer’s expert, Dr. Puricelli, opined that the claimant’s condition was not related to the work event, but rather, to his underlying hypertension. Conversely, the claimant’s expert, Dr. Koprivica, believed that the work incident was the prevailing factor in precipitating his hypertensive crisis, as he felt that in the absence of the work incident, it would be impossible to predict that the claimant would have developed the hypertensive crisis. An ALJ believed Dr. Puricelli more persuasive and found in favor of the employer/insurer stating that an unexpected traumatic event or unusual strain occurring at a specific time and place is not alone sufficient to satisfy the definition of an “accident.” The ALJ also found that the claimant’s work was merely a triggering or precipitating factor.

On Appeal, the Commission affirmed the ALJ’s holding but disagreed with the ALJ’s reasoning. Specifically, the Commission stated that pursuant to Statute an unexpected traumatic event or unusual strain occurring at a specific time and place is sufficient to satisfy the definition of “accident.” Therefore, the claimant did sustain an accident. However, an injury is not compensable because work was a mere triggering or precipitating factor. The Commission noted that Dr. Koprivica opined that the altercation was the prevailing factor in precipitating the claimant’s hypertensive crisis. While the Commission did believe that the claimant sustained an accident, the pertinent inquiry is whether he sustained a compensable injury. In other words, they denied compensability because his accident, the altercation with the prisoner, was merely a precipitating factor of hisinjury, his hypertensive crisis.

Unexplained Fall Found not Compensable

In Scott v. Bellefontaine Gardens Nursing & Rehab Center, Injury No. 11-099793, the claimant was walking on December 3, 2011, when she fell injuring her right leg. She testified that she does not know how or why she fell. The claimant was taken to Touchette Hospital and reported to the emergency room doctors that she did not know how she fell. One of those emergency room doctors stated that the claimant’s knee “gave out” and that the claimant denied any trauma. Thereafter, the claimant treated at Concentra on December 16, 2011, and reported that on her date of injury she was directing an aide to assist a resident when she turned and suddenly fell down, although she again reported she did not know why she fell. Additionally, the claimant stated that she did not trip on anything or slip. At a Hearing, the ALJ noted that the claimant was simply unable to describe how she fell, and there was no indication that she tripped on anything, was performing a work activity when she fell, or that there was anything on the floor that caused her to fall. Therefore, it was determined that the claimant’s injury did not arise out of her employment, and was not compensable. On Appeal, the Commission affirmed.

ALJ Can Not Award PPD if Claimant Not at MMI; Occupational Disease Found Not Compensable Because No Symptoms Prior to Alleged Date of Injury

In White v. Ameren UE, Injury No. 05-089838, the claimant alleged injuries to his bilateral wrists and shoulders as a result of his repetitive job duties using an injury date of August 16, 2005. The claimant had chronic problems with this right shoulder since an injury in the mid 1990s, when he sustained a rotator cuff tear which was treated surgically. The claimant did not suffer from left shoulder symptoms until February 20, 2009. Thereafter, the claimant treated on his own with Dr. Schaberg for both shoulders. He was diagnosed with bilateral carpal tunnel syndrome; and bilateral shoulder impingement syndrome and rotator cuff tendinitis. He underwent a right carpal tunnel release and both the claimant’s and employer/insurer’s experts recommended a left carpal tunnel release which the claimant had not yet undergone at the time of the hearing.

Dr. Rotman, the employer/insurer’s expert, opined that the claimant’s current right shoulder symptoms were not the result of his job duties, but rather referable to his mid 1990s injury. Conversely, Dr. Schlafly, the claimant’s attorney, did believe his job duties were the prevailing factor in his bilateral shoulder symptoms. At a Hearing, an ALJ found that the claimant’s shoulders were not compensable, but did Award 20% PPD of each wrist referable to bilateral carpal tunnel syndrome and ordered the employer/insurer to provide treatment for the claimant’s left carpal tunnel syndrome.

On Appeal, the Commission modified the ALJ’s Award. Regarding the claimant’s left wrist, the Commission agreed that his carpal tunnel syndrome was compensable. However, it noted that the ALJ’s Award of both PPD referable to the left wrist and future medical treatment for the left wrist were incompatible, in light of the fact that PPD cannot be assessed until the claimant reaches MMI. Based on the experts’ opinions, the Commission found the claimant had not yet reached MMI and was not entitled to any PPD for the left wrist.

Regarding the claimant’s left shoulder, the Commission noted that the Claim for Compensation alleged a date of injury of August 16, 2005, and there was no indication in the records that the claimant reported left shoulder symptoms until February 22, 2009. Additionally, Dr. Schlafly, the claimant’s expert, provided a report that did not specifically state that the claimant’s occupational disease occurred on or before August 16, 2005. Therefore, they denied the claimant’s left shoulder as there was no proof or evidence that he sustained any left shoulder occupational disease as of August 16, 2005.

Regarding his right shoulder, the Commission overturned the ALJ’s decision, and did find that injury compensable. Specifically, the Commission found that Dr. Rotman’s testimony was not persuasive because he stated that impingement syndrome or rotator cuff tendinitis could never constitute a compensable occupational disease unless one’s job requires repetitive overhead work for at least four hours a day. The Commission noted that Dr. Rotman did not refer to any medical literature or scientific study to report this hypothesis. Therefore, they did not believe that Dr. Rotman’s opinion could be given any weight and consequently sided with Dr. Schlafly, who did believe that the claimant’s right shoulder condition was the result of his job duties.

For Occupational Diseases, the Statute of Limitations Begins to Run When a Diagnostician Connects the Condition to Work – Claimant’s Personal Belief That Condition is Work-Related Has No Effect

In Clevenger v. Ford Motor Company, Injury No. 10-019275, the claimant worked for his employer for over 30 years and eventually developed tinnitus, which he alleged was due to repeated exposure to loud noises at work. The employer conducted annual hearing tests, which as early as 1990 showed that the claimant was developing hearing loss and tinnitus. The employer’s doctors told him that his hearing loss and tinnitus were the result of aging, and advised him to see his personal physician. The claimant retired on September 3, 2006. He did not see his personal physician until March 2010, who at that time connected the claimant’s hearing conditions to his work activities. Two weeks after this visit with his personal physician, the claimant filed his Claim for Compensation.  At a Hearing, the claimant testified that while still employed with Ford Motor Company, he told people at his employer that his hearing loss and tinnitus were work-related. The ALJ ruled that the Claim was barred by the Statute of Limitations because it became reasonably discoverable while the claimant was still employed that his hearing conditions were caused by his work activities. Therefore, the claimant failed to file his Claim for Compensation within two years from the date that it became reasonably discoverable that his conditions were caused by work activities. The claimant appealed.

On appeal, the Commission stated that the claimant was neither a doctor or audiologist, and considering that the employer’s doctors continually assured him that his hearing loss and tinnitus were the effects of aging, it was not apparent or reasonably discoverable that he had suffered a work injury until his March 2010 visit with his personal physician. Therefore, the Commission reversed the ALJ’s finding that the Claim was barred by the Statute of Limitations, and awarded the claimant 15% PPD of the body as a whole referable to his tinnitus. They did not address or award any disability with respect to his hearing loss. 

Employer/Insurer Responsible for Modifications to Vehicle and for Difference in Cost of Average Automobile and the Van Purchased

In Noland v. Marsh Field Rural Fire Association, Inc., Injury No. 11-104962, the claimant lost motion of the left side of his body after being struck in the head by a falling tree while at work. The employer/insurer conceded that PTD benefits were owed and the sole issue was whether the claimant was entitled to reimbursement for purchasing a van he needed to implement modifications. Prior to the injury, the claimant normally purchased an Impala every 5 - 6 years. Following the injury, he purchased a van for a net price of $29,635.00. The employer/insurer paid for accommodations to the van but refused to pay for any of the purchase price of the van. At a Hearing, an ALJ noted that when a modified vehicle is required due to the claimant’s injuries, the claimant is entitled to the difference in the cost of an average, mid-priced automobile of the same year as the purchased van less the cost of the converted van. Thereafter, the claimant is responsible for the cost of maintenance of the van.

The ALJ found that in this instance the only evidence presented as to the cost of a mid-sized vehicle was given by the claimant’s wife regarding a 2013 Impala, which was valued at an estimated $17,900.00. No evidence was presented by the employer/insurer with respect to the cost of another mid-sized vehicle. Therefore, an ALJ awarded the difference between the van and the 2013 Impala estimate, for a total of $11,735.00. Additionally, the ALJ found that the employer/insurer would be liable for modifications to additional vehicles in the future when the claimant’s current van needed to be replaced. On Appeal, the Commission summarily affirmed.

Employer/Insurer May be Responsible for Past Medical Expenses Even if Claimant Treated on Her Own 

In Quast v. RPCS, Inc., Injury No. 11-104621, the claimant began working for the employer in 2006 as a cashier. Her duties required her to utilize a belt scanner to process purchases. In 2007 her job duties were expanded to include that of a bookkeeper, which involved making up the cash register tills, counting money, checking the cash register tills and record bookkeeping entries on a computer. In October 2009 she was promoted to guest relations manager, and her duties were expanded to include supervising and assisting the cashiers, assisting and directing customers, answering the phones and working the service desk handling returns and other orders.The claimant alleged occupational diseases to both her upper and lower extremities as a result of her work.

Specifically, the claimant asserted that she had developed tenosynovitis of the left foot and ankle because she was required to be on her feet through her entire work day. She also alleged bilateral carpal tunnel syndrome. When the claimant began to notice her symptoms she treated with a few physicians, who did diagnose carpal tunnel syndrome, but did not connect that condition to work. It was not until after the claimant had received some treatment that she informed her employer that she believed this condition was work-related. Following notice of the same, the employer did provide authorized treatment.

Dr. Koprivica, the claimant’s expert believed that the claimant’s left foot and ankle symptoms were the result of her constantly being on her feet while at work, and also related her bilateral carpal tunnel syndrome to her repetitive work duties. Conversely, Dr. Corsolini, the employer/insurer’s expert, did not believe that any of the claimant’s conditions were referable to her work but rather due to her age and weight.

At a Hearing, an ALJ found the claimant’s left ankle and foot symptoms and carpal tunnel syndrome compensable. The ALJ denied the employer/insurer’s notice defense stating that when the claimant initially began treating and was diagnosed with carpal tunnel syndrome, no physician connected that condition to work. Additionally, the ALJ awarded the claimant past medical expenses for the treatment that she received when she first began treating on her own, because although the claimant treated on her own and her employer, in fact, had no knowledge of any injury at the time that she was treating, the claimant did not realize she was receiving treatment for a work-related condition.

Hernia Pre-Existing the Work Injury Not Compensable

In Sadic v. SEMCO Plastic Company, Inc., Injury No. 10-096313, the claimant injured his stomach/groin on September 17, 2010, while working on a machine at his employer’s. Specifically, the claimant was attempting to pull a part out of the machine when he felt a strong pain in his groin area and felt something bulging. The claimant alleged that his hernia was as a result of an acute injury or an occupational disease. At a Hearing, an ALJ stated that occupational disease hernia claims are not compensable injuries under the Missouri Workers’ Compensation Act, as the Statute specifically requires that there be an “accident.” Given that the ALJ noted the claimant could not bring an occupational disease claim for his hernia, he must show that he sustained an accident. The claimant testified that he did not have a prior hernia. However, the medical records showed that the claimant reported a history of left testicle swelling on and off for a year but he was normally able to “reduce the bulge,” until his work injury occurred. Additionally, none of the claimant’s medical records show that he reported an accident or unusual strain that occurred at work on September 17, 2010. Dr. Musich, the claimant’s expert, testified that the claimant sustained a hernia which was caused by his “employment” between late 2009 and September 17, 2010. In order to show that he sustained an accident, the ALJ stated the claimant must show that his hernia did not exist prior to September 7, 2010, which based on the medical records, the claimant failed to do. The ALJ noted that Dr. Musich did not causally connect the hernia to a specific date, event or unusual strain, and therefore, did not establish that the claimant sustained a compensable accident on September 17, 2010.

Seasonal Workers Are Only “Employees” if They Were “Furnished” to the Employer by Third Party

Southerly v. United Fire & Casualty Company, Case No. SD33165 (Mo. App. Ct. 2014)

FACTS: The claimant worked at the employer’s cotton gin for the four month ginning seasons in 2007, 2008, and 2009. He sustained a work injury in 2009. He received a $150,000 in benefits from the employer’s workers’ compensation insurer. He filed a personal injury suit against four co-workers and reached agreements. He obtained a $4 million judgment collectable only from the employer’s commercial general liability (CGL) and umbrella insurance policies. The insurer’s policies did not cover an injury if the claimant was an “employee.” The claimant argued that he was not an employee because he was a temporary worker. The trial court refused to impose judgment on the insurer and the claimant appealed.

HOLDING: The Court stated that the issue was whether the claimant was an “employee” and looked to prior case law. They stated that to determine whether he was an “employee” in this instance, they needed to determine whether his seasonal employment qualified him as a “temporary worker.” The Court defined a temporary worker as one who has been furnished to the insured by a third party. The claimant alleged that he was a temporary worker because he was recommended by one of the employer’s workers in 2007, when he first began working at the employer. The Court did not find this argument persuasive. The Court deemed each ginning season to be a new hiring, and as such, the claimant had not shown that he had been furnished to the insured by a third party when he was hired in 2009, when he was injured. Since the claimant was not a temporary worker, he was an “employee” as defined in the Workers’ Compensation statute and could not recover from the employer’s general liability or umbrella policies.

Fund Not Liable if PTD From Last Injury Alone

In Elder v. Treasurer of Missouri, Injury No. 11-026274, the claimant sustained a work injury when he was involved in a motor vehicle accident that caused burns over 6% of his body, respiratory insufficiency, a cervical fracture at C2, difficulty with vision due to floaters in the right eye, traumatic left cubital tunnel syndrome, and profound hearing loss on the right side secondary to a traumatic head injury. The claimant had pre-existing conditions of low back complaints, an injury to his forearm, bypass surgery, and a right heel injury. The claimant settled his claim against the employer and went to a hearing against the Fund. Interestingly, at the Hearing, the claimant’s own experts testified that he was permanently and totally disabled as a result of the last accident alone. The ALJ agreed the claimant was PTD as a result of his last injury alone, and refused to impose liability on the Fund. The claimant appealed, but the Commission affirmed the ALJ’s decision.

Obesity Can Constitute a Pre-Existing Disability

In Kolar v. First Student Incorporated, Injury No. 09-084011, the claimant, who was morbidly obese, worked as a driver. While performing his pre-trip inspection, the claimant went to examine the underside of his vehicle when he lost his balance and sustained an injury to his right knee. In the period that the claimant was recovering from his right knee injury, he began to develop symptoms in the left knee, which he believed were due to being forced to put extra weight on his left knee, since his right knee was not stable. At a Hearing, the ALJ determined that the claimant’s left knee condition was a compensable injury because although his left knee was not injured in the actual work accident, those symptoms stemmed from favoring his compromised right knee. Additionally, the ALJ imposed liability on the Fund, finding that the claimant’s morbid obesity was a pre-existing permanent disability. On Appeal, the Commission summarily affirmed.