State News

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

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

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

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

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

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

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

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

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

671260.1

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

Michael Caputo v. ABC Fine Wine & Spirits

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

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

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

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

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

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

668686.1

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

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

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

MISSOURI WORKERS' COMPENSATION CASE

LAW UPDATE

APRIL 2012-JUNE 2012

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

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

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

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

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

Claim Denied because Claimant Failed to Prove He Sustained an Accident

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employer Not Liable to Replace Prosthesis

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

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

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

Falling Off Shoe While At Work Not Compensable

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

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

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

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

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

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

Stipulations by Parties at Hearing are Controlling and Conclusive

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

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

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

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

Claimant Found Credible Therefore Statute of Limitations was 3 Years

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

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

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

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

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

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

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

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

COMMISSION DECISIONS

Old Law 

Claimant Could Medically Return to Work Therefore No TTD Owed

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

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

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

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

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

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

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

New Law

Occupational Disease is a Subsequent Compensable Injury and Triggers SIF Liability

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

Claim Denied Because Witness Testimonies Inconsistent with Claimant's Testimony

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

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

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

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

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

Claimant Not Entitled to Total Knee Replacement When Tillotson Applied

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

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

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

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

Climbing Stairs Into Work In Course of Employment

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

Claim Denied Because Claimant Not Employee or Statutory Employee

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

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

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

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

Insurer Did Not Have to Pay Costs to Employer and Claimant

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

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

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

WORKERS’ COMPENSATION CASE LAW UPDATE

JANUARY 2012-MARCH 2012

Automobile Accident on Way to Hunt Before Business Meeting Not Compensable

Wilson v. Wilson, No. WD73742 (Mo. App. W.D. 2011)

FACTS: The claimant was the owner and employee of a company which moved mobile homes. On December 13, 2008, the claimant was injured in an accident while he was on his way to a business associate's property to hunt for deer. Thereafter, he was going to meet someone else for business. The Commission found that because the claimant was on his way to go hunting, there was no dual purpose or mutual benefit to his employer to make the accident compensable because the claimant had deviated from his route to and was traveling to property where he planned to hunt. The Commission further found that if the claimant canceled his personal hunting trip, he would have not been where the accident occurred.

HOLDING: The Court found that the Commission was justified in concluding that the claimant's multi-hour personal mission, which involved multiple features which exposed him to risk of injury, did not represent merely a slight deviation from his employer's purpose but a sufficiently substantial deviation that defeated his reliance on the mutual benefit doctrine. Therefore, the claimant did not meet his burden of establishing that his injury arose out of and in the course of his employment.

At Hearing SIF Not Bound By Settlement Made by Claimant and Employer

Dennis Seifner v. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, No. WD74192 (Mo. App. W.D. 2012)

FACTS: The claimant filed an occupational disease claim for injury to his thoracic spine in 2003, which he settled with the employer for 10% PPD. The claimant also alleged pre-existing disabilties. The claimant went to a hearing against the Fund, and the ALJ found that the claimant's doctor, Dr. Stuckmeyer, was significantly impeached on cross-examination during his deposition, and therefore, found that the doctor's opinion was not credible. Therefore, due to the lack of credible medical evidence on the issue of causation, the ALJ found there was no compensable occupational disease and also denied the claimant's claim against the Fund. The Commission affirmed and adopted the decision of the ALJ. The claimant appealed arguing that the Fund could not relitigate the percentage of PPD which was agreed on in the settlement between himself and the employer.

HOLDING: The Court of Appeals found that basically the claimant was arguing that the Fund was bound by the terms of the settlement between himself and the employer. The Court looked to Totten v. Treasurer of the State, wherein the Court found that the claimant failed to prove a work accident occurred and denied his claim against the Fund after the claimant and employer settled their claim for 12.5% of the body. In Totten, the Court noted that no attorney on behalf of the Fund signed the settlement, and the claimant did not assert that the Fund was otherwise a party to the settlement. Therefore, the Court found that the Fund was not bound by the terms of the settlement agreement entered into by the claimant and his employer. Applying the rationale of Totten, the Court of Appeals noted that the facts were the same in this case, and therefore, the Fund was not bound by the terms of the settlement between the claimant and the employer.

The claimant also argued that the Fund was required to introduce medical evidence to challenge the credibility of Dr. Stuckmeyer, and the Commission was not entitled to ignore the doctor's uncontradicted opinion and substitute its own opinion with regard to causation. The Court of Appeals noted that the claimant has the burden of proving all essential elements of this claim, therefore, the Fund does not have to establish by medical evidence or otherwise that the injury was caused by something other than the claimant's job. The Court of Appeals further found that the Commission did not err in finding the doctor's testimony not credible, due to the fact that it identified several reasons as to why it was discrediting the doctor's opinion. Therefore, the Court of Appeals affirmed the Commission's Decision denying the claimant's claim against the Fund.

Employer's Motion Denied Because no Evidence of Physical Change in Condition

Patrick Pavia v. Smitty's Supermarket, No. SD31275 (Mo. App. S.D. 2012)

FACTS: On February 26, 1996 the claimant sustained a closed head injury and cervical spine fracture. The ALJ found the claimant sustained 20% PPD referable to the cervical fracture and 50% PPD referable to the traumatic brain injury. In November 2002, the Commission found that the claimant was permanently and totally disabled as a result of his work injury.

A year after the work injury, the claimant obtained a job, attended school, and continued to work thereafter. He first worked at an automobile dealership for two years then went to school and returned to the dealership for another three years. He was also employed as a bell boy at the Holiday Inn during this time. The claimant then worked at his family's golf center until 2005 or 2006. He then was a cabinet builder and installer but had trouble remembering the measurements and was let go due to economic downturn. After a few months of unemployment, in December 2008 the claimant was hired as a manager trainee at Enterprise Leasing. In September 2010 the claimant was still in the training position even though the training period was only six months. He also had received two warnings of possible termination if his performance did not improve. On April 9, 2010, the employer filed a Motion for Determination of Change in Condition, and a hearing was held in front of an ALJ on September 20, 2010, at which time the claimant was still employed. Dr. Stillings, the employer's expert, opined that the apparent improvement in the claimant's diagnoses and cognitive function evidenced a physical change in the condition of his brain. Dr. Cohen, the claimant's expert, spoke with the claimant, the claimant's wife and his mother, who all reported no change in the claimant's condition. His wife noted that she ran the house and had to leave post-its around the house for him to be able to remember. The claimant's wife and mother noted no improvement in the claimant's condition over the years. Dr. Cohen was of the opinion that there had not been a significant change in the claimant's condition. He further believed the claimant was not employable on the open labor market.

The Commission dismissed the employer's Motion on March 22, 2011, finding that although the employer presented evidence that the claimant had undergone numerous life changes since the original Award in 2002, it did not present any new MRI scans of the brain or any other concrete evidence showing an actual "physical change in condition". Please note that prior to the 2005 Amendments, the Court in Bunker v. Rural Elec. Coop. required the employer to demonstrate a change in the claimant's physical condition before the Commission could institute a change in the claimant's award. Here, the employer argued that the 2005 Amendments applied which require strict construction in interpreting the Statute, which does not contain the word "physical", but only states "change in condition". Therefore, the employer argued that the word"physical" cannot be grafted into the wording of that section.

HOLDING: The Court of Appeals found that the 2005 amendments do not apply because the date of the injury governs the claim under the law, which in this case is a 1996 injury. The Court of Appeals noted that there is nothing in the 2005 amendments noting the legislature intended for these amendments to apply retroactively to injuries occurring before that effective date. Therefore, Bunker still applied which requires the employer to demonstrate a physical change in condition. The Court of Appeals noted that the Commission determined that Dr. Stillings was not credible and that Dr. Cohen, the claimant, his wife and his mother were credible, and therefore, the employer failed to prove a change in the physical condition of the claimant. The Court affirmed the Commission's dismissal of the employer's Motion for Determination of Change in Condition. (This is an old law case.)

Claimant Must Specifically State Why ALJ Erred

Dickens v. Hannah's Enterprises d/b/a Hannah's General Store, No. SD31237 (Mo. App. S.D. 2012)

FACTS: The Commission dismissed the claimant's Application for Review because it failed to specifically state the reason why the claimant believed that the findings and conclusions of the ALJ were not supported.

HOLDING: The Court of Appeals noted that an Application for Review of any final Award, Order or Decision of the ALJ shall state specifically the reason the applicant believes the findings and conclusions of the ALJ are not properly supported. It is not sufficient to merely to state that the decision of the ALJ is not supported by competent and substantial evidence. The Court found that in this case, the Commission made no findings, therefore, there was no Decision for the Court's review. The only decision the Court is authorized to review is the Order to dismiss the Application and, determine if the Commission acted in excess of its powers. The Court noted the claimant did not raise these grounds in her appeal and, therefore, she abandoned it. Therefore, the dismissal was affirmed.

Claimant Found to be Employee Not Owner/Operator and Missouri Had Jurisdiction

Rader v. Werner Enterprises, No. ED95905 (Mo. App. E.D. 2012)

FACTS: The claimant, a truck driver and resident of Texas, was injured on May 29, 2003 in Missouri while unloading a truck. In February 2003 the claimant purchased a truck through a subsidiary of the employer and the employer changed the claimant's job classification to owner-operator. The claimant also signed a contract waiving workers' compensation jurisdiction in any state besides Nebraska (where the employer is headquartered). The ALJ and Commission found that Missouri had jurisdiction and the employer appealed.

HOLDING: The Court of Appeals found that Missouri had jurisdiction over the claim because the claimant was injured in Missouri and the choice of law language in the agreement applied to an independent contractor relationship and not an employer/employee relationship. The Court found the claimant was an employee. The Court further found that the Commission did not err in finding that the driver was an employee because it was unclear if the claimant "owned" the truck because it was unclear if the claimant had title to the truck, the claimant could not convey the truck, and his right to use was conditioned upon continued employment, which was significant to show that he did not own it. Therefore, the claimant was not an owner/operator but was an employee. (This is an old law case.)

Third Party Who Provided Unauthorized Treatment Cannot Intervene in Workers' Compensation Matter

United States Department of Veterans Affairs v. Karla O. Boresi, Chief Administrative Law Judge, No. ED97042 (Mo. App. E.D. 2012)

FACTS: The claimant had a pending workers' compensation claim before the Commission, alleging injuries sustained while working for the employer, United Home Craft. Without authorization from the employer, a medical facility of the US Department of Veterans Affairs, provided care to the claimant. The VA filed a Motion to Intervene in the Workers' Compensation case, and the ALJ denied the Motion. The VA filed a Petition requesting that the Circuit Court direct the ALJ to rescind the denial and allow the VA to intervene as a party in the case. The Circuit Court denied the Petition.

HOLDING: The Court of Appeals noted the employer has a statutory right to select the medical providers to provide treatment to an injured claimant. Also, the claimant has a right to select his own medical treatment, however, if care has not been authorized by the employer, the claimant bears the expense of treatment. The Court of Appeals noted that nowhere in the Statute is the ALJ permitted to allow private providers of such unauthorized medical care to intervene or participate in a workers' compensation case. The VA argued that the United States has a right to intervene to recover charges from a third party to the extent that the Veteran (claimant) would be entitled to receive payment from a third party. However, the Court of Appeals noted that since the claimant received unauthorized medical care at the VA's medical facility, under Missouri law he is not entitled to receive any payment from the employer or insurer. So, even if the VA was allowed to step in the claimant's shoes, the VA would still not be entitled to receive payment. Therefore, the Court of Appeals affirmed the Circuit Court's decision to not allow the VA to intervene in the Workers' Compensation matter.

Commission Trends

Old Law (Pre-August 28, 2005)

Employer Did Not Waive Right to Direct Treatment

In Stacy Dean v. Elder Customs Homes, Injury No. 02-120477, the claimant argued that the employer "waived" its right to direct treatment due to failing to provide prescription medications to her from April through September 2007. The claimant therefore sought an Order from the Commission that would allow him to go to any doctor he chooses and pursue his own future treatment at employer's expense. The ALJ noted that the employer consistently asserted its right to control treatment throughout the claim, and therefore, did not waive the right to direct payment. The Commission agreed with the ALJ and noted that an employer's waiver of the right to direct treatment of past medical does not mean that the claimant can obtain an Order from the Commission granting him the prospective privilege of selecting any doctor or treatment he chooses, with the employer liable to pay for such expenses.

Employer Had Notice Even Though Amended Claim Did Not State Alleged Injuries

In Norman L. Berra v. Berra Construction, LLC, Injury No. 98-179083, the employer argued that the claimant was not entitled to compensation since the claimant, in his third amended Claim, failed to state the specific body parts that were injured by the alleged occupational disease. In the first and second amended Claims, the claimant alleged injuries to his wrist and elbows. The Judge noted that the defense is entitled to know what the claimant alleges to be his injury. However, administrative pleadings do not involve strict fact pleading in most cases. The ALJ opined that the employer had knowledge of the claimant's allegation that he sustained injuries to both of his upper extremities from his work based on the claimant's prior pleadings, to which the employer filed Answers, denying that allegation. In addition, the forensic medical evidence was in evidence without any objection. Therefore, based on the evidence, the defense had notice of the allegation and defended against that allegation and the employer waived any defense that the claim was legally insufficient. The Commission affirmed.

New Law

Housekeeper's Job Duties Caused Carpal and Cubital Tunnel Syndrome

In Ann Shinkle v. The Fountains of West County, Injury No. 08-101748, the ALJ found that the claimant's job duties as a housekeeper at an assisted living retirement facility led to her bilateral carpal and cubital tunnel syndrome. Her job duties included cleaning the kitchen floors, baseboards and appliances and the walls, windows and flooring in the residents' rooms. She also was required to work on her hands and knees cleaning the floors in the bathrooms as well as vacuum, mop, dust, clean carpet stains, sweep decks and do laundry. The Commission affirmed the ALJ.

Job Duties as Bus Driver were Prevailing Factor Despite Congenital Condition

In Monica Chrismer v. First Student, Injury No. 09-100519, even though the claimant had a pre-existing os acromiale which is a congenital condition in the shoulder, the ALJ found that her repetitive job duties as a bus driver were the prevailing factor in causing her right shoulder condition. The ALJ noted that while the claimant might have been predisposed to developing problems in her shoulder due to her congenital condition, the ALJ did not believe that her shoulder condition would have arisen without the repetitive job duties, especially considering the 25 year span in which the claimant had no shoulder problems despite her congenital condition. The Commission affirmed the ALJ's finding.

Walking Down Stairs Found to be In Course and Scope of Employment

In Jason Pope v. Gateway to the West Harley Davidson, Injury No. 10-019309, the claimant was asked by his supervisor to move motorcycles to the upper showroom. He was required to wear a helmet when moving motorcycles. The claimant was on the way back to the service department to ask his supervisor if there was anything else he needed to do before clocking out when he fell down the stairs. The ALJ found the hazard or risk of injury, descending stairs while carrying a helmet, was unrelated to the claimant's employment because his normal job duties did not involve climbing an excessive number of stairs or moving motorcycles, and he was not involved in a work activity when he fell because he had finished moving the motorcycles and planned to clock out. The Commission reversed the ALJ's decision and found that there was competent and substantial evidence showing that the risk to which the claimant was exposed, negotiating stairs while in the process of performing work activities, while wearing work boots and carrying necessary tools of his trade (helmet), created a clear connection or nexus between the hazard or risk of injury and the injury itself.

Threshold for SIF Liability

The Commission issued the same opinion in six different cases with respect to the threshold for SIF liability. The threshold is that if a claimant has a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment and that pre-existing permanent partial disability equals a minimum of 12.5% PPD of the body as a whole (50 weeks), or 15% PPD of a major extremity, and the claimant sustains a compensable injury resulting in additional PPD in the amount of 12.5% of the body as a whole, or 15% PPD of a major extremity, and the combined disabilities are substantially greater than that which would have resulted from the last injury alone, the employer at the time of the last injury is liable only for the disability resulting from the last injury.

The Commission noted that under the plain language of the statute, once it is determined that the threshold is met, all disabilities that existed at the time of the work injury shall be considered in the calculation of the SIF's liability. For example, in Thomas Richards v. Lagasse Suite, Inc. "Settled" and the Treasurer of Missouri as Custodian of Second Injury Fund, Injury no. 08-121450, the Court noted the claimant had multiple pre-existing permanent partial disabilities including 25% of the right knee, 35% of the left knee, 10% of the right wrist, 15% of the left shoulder and 12.5% of the body as a whole referable to diabetes. Pursuant to the Statute, all of these meet the threshold for SIF liability except for the 10% of the wrist. However, since the claimant met the threshold for at least one pre-existing injury he is entitled to compensation from the SIF. The Commission opined that when calculating the SIF liability even though the 10% of the wrist, or 17.5 weeks alone does not meet the threshold, the claimant is entitled to compensation for all pre-existing injuries. Therefore, the 17.5 weeks is included in calculating the total weeks for which the SIF is liable.

Claimant Traveling to Different Locations for Employment Found Compensable

In Maria White v. Anderssen Mobile X-ray Service, Injury No. 10-022144, the claimant was a staff technologist and her job duties involved taking x-rays at various locations throughout the metropolitan area. The claimant drove the employer's minivan containing the employer's equipment, films and office papers, and gas and vehicle repairs were paid for by the employer. The claimant was to be in the office by 3:00 P.M., and was to call 30 minutes before her shift, or at 2:30 P.M., to see if there were any assignments or she was to go directly to the employer's office. The claimant called the dispatcher and was on her way to the office when she was in a motor vehicle accident which occurred at 3:10 P.M. The ALJ found that this case is not the case of a causal drive to work, in which the claimant was driving from her home to the employer. The ALJ noted that the essence of the claimant's employment was driving to the employer's customers and patients to provide mobile x-ray services and therefore, the claimant's accident arose out of and in the course and scope of her employment. The Commission affirmed.

Reaction to a Voluntary Vaccination Found Compensable

In Karen Doyle v. Lakeland Regional Hospital, Injury No. 05-141082, the claimant sustained transverse myelitis as a result of being given a flu vaccine at work. The claimant had requested a vaccine, which was voluntary. The ALJ found that the transverse myelitis arose out of and in the course of her employment. The Commission further found that the reaction was an unexpected traumatic event, identifiable by time and place of occurrence. Therefore, the reaction was in fact an accident. It was found that there was a greater likelihood in contracting infection while working in a healthcare facility and therefore, the complications resulting from a flu vaccine were a hazard or risk related to the claimant's employment. Therefore, the risk of developing transverse myelitis came from a hazard related to the employment.

When Parties Stipulate to a Fact at Hearing ALJ Cannot Make Ruling

In Sheila McCoun v. OPAA Food Management, Inc., Injury No. 09-108756, the claimant had two claims, both specific accidents involving the low back, one with an injury date of December 17, 2007 and the second with an injury date of October 27, 2009. The employer admitted that both were compensable. The ALJ found that the claimant's accident on October 27, 2009 was simply an aggravation of a pre-existing injury and not the prevailing factor, and therefore, denied that claim. The claimant argued that the parties only asked the ALJ to determine which of the claims caused the claimant's need for the specific medical treatment and TTD benefits that she sought through a hardship hearing. The Commission found that the ALJ went beyond his power because the parties stipulated that the claimant sustained an injury by accident arising out of and in the course and scope of employment on October 27, 2009. Furthermore, the parties did not ask the ALJ to resolve the issue of whether that injury was compensable. Therefore, it was improper for the ALJ to make findings and conclusions purporting to resolve such issue.

Employer's Idiopathic Argument Found to be Speculation

In Lolita Maderazo v. Dillard's Inc., Injury No. 10-076660, the claimant was a housekeeper/dock associate, with very poor English, who had thrown trash into a dumpster in the dock area and was heading back into the store through swinging doors, at which time she fell. At the Hearing, the claimant testified that her foot caught on the swinging doors after a co-worker walked through them. The claimant's co-worker testified that the claimant reported that she fell down but did not know how she did so. The store manager also testified that the claimant told her the same thing. The claimant agreed that she only told the emergency room physician that she fell down. The claimant had a history of arthritis in her knees, and the employer argued that this fall was idiopathic. The ALJ noted that the employer's argument, that the claimant's fall was idiopathic, was based on speculation. The ALJ opined that in light of the claimant's poor English skills, it was understandable that she did not provide a lot of details regarding how she fell. Therefore, the ALJ found that the claimant's fall was caused by the swinging door striking her foot. Also, the claimant had just emptied trash which was part of her job duties, and to enter and exit the dock area she had to go through the swinging doors. Therefore, the fall arose during the course of her employment. The Commission affirmed the Award.

Claimant's Doctor's Opinion Not Credible and Claim Denied by Commission

In David Johnson v. Land Air Express, Inc. and Franklin Trucking Company, Injury No. 08-107387, the claimant was moving a pallet by hand on December 1, 2008, and sustained an injury to his lower back, however, the claimant denied treatment, but then underwent surgery on his own. Prior the work accident, the claimant had a significant history of lower back injuries, including an L4-5 spinal fusion. The ALJ found that the claimant's work injury was the prevailing factor in causing the claimant's need for medical treatment, relying on the opinion of the claimant's treating physician, Dr. Montone. The Commission disagreed with the ALJ's decision, noting that Dr. Montone's opinions were not credible. The Commission gave numerous reasons for finding that the doctor's opinions were not credible. First, the doctor found that the claimant's work injury, along with his repetitive job duties, were the prevailing factors causing his condition, when in fact the claimant only reported a specific accident, not a repetitive motion claim. Second, the doctor did not know about the claimant's work activities or his work injury until after his surgery. The doctor also testified that he based his opinion on the history the claimant provided, and the Commission noted that it appeared that Dr. Montone ignored objective medical evidence. Therefore, the Commission found that the doctor's opinion was not credible and denied the claimant's claim for medical treatment.

Aggravation of Pre-existing Condition Found Not Compensable

In Christopher Sliger v. Peoplelink, Injury No. 10-070253, the claimant had worked at the employer for only two weeks. On his date of injury, he had been at his normal work station for 45 minutes and was injured when he was moving a 10 pound part in each hand, below shoulder level to a table one and a half feet away. The claimant sustained an injury to his right shoulder and underwent an MRI which showed a recurrent full-thickness rotator cuff tear. It was noted the claimant had a prior full rotator cuff tear in 2008 after a motorcycle accident, which he had repaired surgically. After he was released from care after his motorcycle injury he had some intermittent pain but returned to work with no restrictions. The claimant treated with the employer's doctor, Dr. Rogers, who initially opined that the claimant's accident was the prevailing factor in causing his new rotator cuff tear, however, this was after the claimant provided an inaccurate history of his job duties on the day of his injury. After the employer provided correct information, the doctor then opined that the claimant's condition could not be the prevailing factor in causing an acute massive, two tendon rotator cuff tear. The claimant did not provide his own expert testimony but relied on Dr. Rogers' first opinion.

The ALJ found that the weight of the part and how he moved it to the table, did not present any unusual strain, exertion, body contortion or force. Furthermore, the weight of the parts was consistent with objects encountered in the claimant's everyday life. The ALJ noted that after Dr. Rogers was given accurate information he opined the injury could not be the prevailing factor in causing the rotator cuff tear. Therefore, the claimant failed to prove his burden with respect to medical causation. The ALJ further noted that the injury allegedly sustained was of a complex nature requiring the analysis and assessment of an orthopedic surgeon and expert assessment was particularly needed here when there was evidence of similar rotator cuff pathology just two years prior. Furthermore, the ALJ found that the claimant was not a credible witness having filed a false workers' compensation claim in the past, and he deviated from his prior deposition testimony in several regards.

The Commission affirmed noting that the ALJ did not find that an accident occurred. The Commission found that even assuming an accident occurred, this was a case of medical causation and the claimant relied solely on Dr. Rogers' first opinion. However, the Commission found Dr. Rogers' second opinion more credible. Therefore, the claimant failed to meet his burden proving medical causation.

Hearing Loss Found Not Compensable

In Bert Kersey v. Autry Morlan, Inc., Injury No. 07-061758, the claimant was assigned to investigate the cause of an engine noise in a customer's car. On July 11, 2007, he applied a stethoscope to the alternator and something popped causing a very loud noise, at which time the claimant noted he was deafened and immediately reported his injury to the employer. The claimant was prescribed hearing aids and continued to follow-up with doctors until 2010, which was paid for by the employer/insurer. The ALJ found that the claimant failed to meet his burden of proof that his work accident was the prevailing factor in causing his tinnitus. The ALJ noted that Dr. Mikulec, the employer's expert, noted that the claimant's tinnitus may be of industrial cause. She also noted that Dr. Guidos, the claimant's expert, provided a rating of 15% PPD for constant and persistent tinnitus. However, he did not note that the claimant's accident was the prevailing factor in causing his tinnitus. Therefore, the claimant failed to meet his burden on causation. The Commission affirmed the opinion of the ALJ.

July 11, 2012 Kansas Workers Compensation Law Update.

1.  Final Results Of The 2012 Kansas Legislative Session.

The final results of the 2012 Kansas legislative session were no substantive or significant changes to the Kansas Workers Compensation Act.  Our 2011 pro-employer reform laws remain in place and are starting to take hold with great results for employers.

2.  Summary Of A Few Of The Significant 2011 Pro-Employer Kansas WC Law Reforms:

A) To be a compensable work accident, there must be an undesigned, sudden and unexpected traumatic event, identifiable by time, and place of occurrance, and must produce at the time of accident, symptoms of injury and must occur on a single work shift.

B) To be compensable, the work accident must be the prevailing factor cause of: a) the injury; b) the need for treatment; AND c) the resulting impairment or disability. If the accident causation proof fails in any of these three elements, the accident is deemed to "not arise out of employment."

C) The "simple aggravation of a preexisting condition" rule which previouly resulted in Kansas employers paying tens of millions of dollars in benefits and treatment for preexisting conditions, is gone.  In its place is a higher standard of injury and causation claimants must prove to establish a compensable personal injury by accident on the job.

D) "Arising out of and in the course of" employment does NOT include: a) injury by natural aging process or activities of day-to-day living; b) neutral risks; c) personal risks; d) accidents or injuries arising either directly or indirectly from idiopathic causes.

E) All compensation is disallowed in the case where the injury results from the employee's "reckless" (lower standard than "willful") disregard of an employer safety rule or regulation.

F) For the accidental injury to "arise out of" employment, the claimant must prove a causal connection between the "conditions under which the work is required to be performed" AND the work accident.

 3.  More Good News For Employers On Appeals Board Decisions Interpreting And Applying The New 2011 Pro-Employer Workers Compensation Law Reforms.

PREVAILING FACTOR CAUSE DEFENSE

In Shepard v. Big Lakes Development Center, Inc. Docket No. 1,058,184, (April 2012), the Kansas Workers Compensation Appeals Board reversed an administrative law judge preliminary hearing order awarding benefits on the prevailing factor cause defense.

While the Appeals Board acknowledged Shepard proved a work accident occurred on July 22, 2011, and she presented medical causation opinions from two separate doctors, the Board held that claimant failed to meet her burden of proof under the new prevailing factor cause requirement that her work accident resulted in her current need for medical treatment.

The key to the Board's denial of benefits in this case was that Board found that even though claimant procured two favorable expert opinions that the work accident was the prevailing factor cause of the injury and need for treatment, those experts had not been provided the full relevant medical histories of the claimant.  As such, those pro-claimant causation opinions were flawed and unreliable.  If fact, claimant Shepard had a long history of prior low back and knee problems and those facts were not provided to the doctors who provided claimant favorable causation opinions.

The refreshing take away from this favorable "new law" Appeals Board decision is that the intent of the new law reforms is in fact being enforced and carried out by the Appeals Board.  The new law reforms did away with the old law "simple aggravation of a preexisting condition" rule, that cost Kansas employers untold enormous sums of money in compensating workers for preexisting conditions which were not work injury related.

The Appeals Board Member writing the Shepard decision explicitly pointed this out in the following passage:  "The new law, placed into effect on May 15, 2011, requires additional elements of proof from a claimant.  No longer is the simple aggravation, acceleration or exacerbation of a preexisting condition sufficient."

This case points out to claimant attorneys in Kansas that they would be wise to do their due diligence regarding medical history discovery on their client prior to procuring medical expert causation opinions, to get their experts the full and complete medical histories of their clients.  This would allow that any pro-claimant expert opinions generated, can be relied on in court by the Judge.  The obvious question is why wouldn't this be standard operating procedure in the first place?

The flip side of that coin for employers, carriers and TPA's in Kansas is that it is now essential that they spend the money and time in the defense of a workers compensation claim to discover and procure all relevant medical history information concerning a claimant.  This case proves that such efforts can result in a total claim denial thereby saving significant workers compensation costs.

By Kim R. Martens of Hite, Fanning & Honeyman L.L.P.  www.hitefanning.com

Benito Villafana v. Blackhawk Foundry and Travelers, No. 2-441 / 11-1781 (Iowa Court of Appeal)

The Claimant, Benito Villafana, was born in Mexico and immigrated to the United States in 1976 after completing the sixth grade. Until 1988 he had worked as a farm laborer, but following that he went to work with the employer in the present case. The Claimant worked as a grinder for ten years until he suffered from a carpal tunnel injury related to his repetitive work. To accommodate the Clamiant’s permanent restrictions related to this injury, the employer moved the Claimant to the job of scale operator. This job required him to pick up castings, some of which weighed upwards of 100 lbs. When lifting these heavy castings, the employer instructed the Claimant to get the help of his supervisor or forklift operator.

The Claimant then sustained a shoulder injury in 1999. In relation to this injury, the Claimant was awarded a thirty five percent partial disability in 2004. In the present case, the Claimant alleged neck and hand pain beginning in 2006. The Claimant continued his employment until a plant wide lay off in 2009. At hearing, the Claimant admitted to his earlier carpal tunnel injury as well as ongoing neck problems before his alleged injury dates. In 1997, he reported neck pain in conjunction with finger pain. He also received treatment for neck pain in 1998. In 2002, he again complained to a physician that he was experiencing neck pain in conjunction with the pain from his shoulder injury, and in 2003 a neurosurgeon evaluated the Claimant for neck pain and ultimately recommended neck surgery.

The Claimant had alleged a first injury date of April 28, 2006 when he went to Dr. Pardubsky regarding his neck pain. Dr. Pardubsky believed the neck pain was related to Claimant’s prior shoulder injury. In a subsequent visit, Dr. Pardubsky told the Claimant there was nothing further he could offer. The Claimant also alleged a second injury date of January 2, 2007 when he was referred by the employer to Dr. Frederick. The Claimant complained of chronic right trapezium and cervical pain, as well as numbness and tingling in his right fourth and fifth fingers. Dr. Frederick noted the right trapezius pain and cervical pain were well documents since 1999. In a follow up visit, Dr. Frederick noted that the Claimant’s EMG was “positive for moderate to severe right carpal tunnel.” She believed the condition was work-related based on the history provided by the Claimant that he was performing “highly repetitive grasping tasks” in his job. Blackhawk did not offer further treatment for the Claimant’s carpal tunnel or other chronic problems related to the prior work injury, nor did the Claimant seek treatment for his ailments, aside from some chiropractic care.

At the employer’s request, Dr. Frederick revisited her opinion regarding the Claimant and ultimately concluded that she could not relate his recurrent right carpal tunnel to his job with the employer. She also noted that the Claimant did not suffer a new injury of 2006 and any pain was likely caused by an ongoing spondylosis that has never resolved since 1998.

One month before his hearing with the deputy commissioner, the Claimant visited neurosurgeon Robert Milas in June of 2009. Dr. Milas noted the Claimant was a poor historian but stated that the Claimant experienced a significant change in cervical pain as well as loss of strength in his right hand in 2007. He opined the 2007 injury was linked to his recurrent carpal tunnel syndrome and cervical radiculopathy, and that the injuries caused Villafana to be permanently impaired.

After hearing, the deputy concluded that the Claimant failed to show he suffered an injury in the course of his employment and denied his claim. The deputy was more persuaded by the opinions of Dr. Frederick as opposed to Dr. Milas. The deputy noted that:

While Dr. Milas may have superior qualifications as a specialist in neurosurgery than those of Dr. Frederick, the record does not indicate what prior medical records, if any, were reviewed by Dr. Milas before making his opinion. This is a critical flaw in claimant’s case given Benito’s past medical history involving not only cervical and right extremity pain, but facial numbness dating back four years prior to the claimed neck injury. Also, it is not clear if Dr. Milas had any understanding of what claimant’s job at Blackhawk involved.

On appeal, the Commissioner found the deputy’s findings were supported by the preponderance of the evidence. The decision was also affirmed by the district court. The Claimant then appealed to the Court of Appeals.

The Court began its review noting that the factual findings of the agency were reviewed for substantial evidence. The Court found that he arbitration decision detailed why the deputy found Dr. Frederick to be more convincing than Dr. Milas. Dr. Milas did not reveal whether he reviewed any medical records, the Claimant’s actual labor requirements for scale operators, or whether his injury was caused by the repetitive nature of his work. Conversely, the Court found Dr. Frederick documented her decision-making process, and although her ultimate conclusion contradicts her initial stance on the Claimant’s injury, the Court found she explained what subsequent information—an on-site job inspection—persuaded her to change her opinion. The deputy also credited Dr. Frederick’s review of the Claimant’s prior medical records, contrasted with Dr. Milas, who found the case factually confusing because the Claimant was a “poor historian.”

The Court stated that as the finder of fact, the agency determines the weight to give an expert opinion. Therefore the Court found that they would not give greater weight to the Claimant’s medical expert than what was afforded by the agency.

The Court then turned its attention to the finding that the Claimant had not suffered a permanent aggravation of his previous injury to his cervical spine. The Court found that the Claimant had not carried his burden to overturn the agency’s decision. The court state that “evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” The Court found that given the gravity of medical evidence on the issue of causation, and the fact-finder’s ability to accept or reject expert evidence in whole or in part, Dr. Frederick’s conclusion she “do[es] not feel there has been any new injury to his neck [and that] he has an ongoing cervical spondylosis from 1998 that has never resolved” supports the commissioner’s finding.

The decision of the district court was affirmed.

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

College Community School District and EMC Insurance Company v. April Orris, No. 2-280 / 11-1848 (Iowa Court of Appeal)

The Claimant, April Orris, was employed as a middle school science teacher who chaperoned a field trip to the local roller skating rink on May 20, 2005. While on the trip, the Claimant fell and landed on her right wrist, arm, shoulder and back. She was treated at Mercy Care South and was placed in a sling and released with restrictions of no use of the right arm. The Claimant continued to treat with Dr. Pape and despite the treatment, she reported her right elbow pain progressively got worse. On April 20, 2006, the Claimant underwent an arthroscopic subacromial decompression with Dr. Pilcher. The Claimant reported the surgery increased her range of motion and decreased her shoulder pain, although her neck symptoms continued.

The Claimant resigned from her position with the College Community School District for reasons unrelated to her work injury. In August of 2006 she began a position with the Marion Independent School District. Four days after she began her employment, she began complaining of problems with her neck, shoulder and elbow. In February of 2007, the Claimant was discharged because she had exhausted her leave and failed to return to work. She then became a tutor.

The Claimant then began to treat with Dr. Bagheri, who noted she had symptoms consistent with fibromyalgia. The Claimant then saw Dr. Buck, an occupational medicine specialist in February of 2008 who placed the Claimant at maximum medical improvement and released her to light duty for six months and then full duty thereafter. He then assigned her an eight percent permanent impairment rating.

The Claimant underwent an independent medical examination in January of 2009 with Dr. Kuhnlein. He assessed the Claimant with an ten percent permanent impairment and stated he did not feel the Claimatn was capable of working full time, but felt she could work full time in the future.

At hearing, the deputy determined that the Claimant had sustained injuries and awarded her permanent partial disability benefits of thirty percent. On appeal, the commissioner affirmed the deputy’s decision. In support her motion for rehearing the Claimant argued that the agency had erroneously relied upon the opinion of Dr. Buck that Claimant’s fibromyalgia would be under control within six months. This motion was subsequently denied by the commissioner. On judicial review, the district court found the commissioner committed legal error in relying upon Dr. Buck’s prediction regarding the Claimant’s future condition when determining her industrial disability. The case was sent back to the commissioner for evaluation of the Claimant’s disability without consideration of her future consideration.

The Court began its analysis by stating that  in determining a scheduled or unscheduled award of workers’ compensation benefits, the workers’ compensation commissioner finds the facts “as they stand at the time of the hearing and should not speculate about the future course of the claimant’s condition.” The Court further stated that functional impairment and disability resulting from a scheduled loss must be determined at the time of the award and not based on any anticipated deterioration of function that may or may not occur in the future. The Court then noted that any future developments, including the worsening of a physical condition or a reduction in earning capacity, are properly addressed in review-reopening proceedings.

The Court then turned its attention to whether the agency improperly relied on the evidence regarding the Claimant’s future employment in its finding that she had suffered a thirty percent partial disability. The Court determined that the agency had not. The Court found that the agency had determined the Claimant was capable of full-time employment “in the sedentary to light categories” and found working as a teacher in a high school setting fit within the sedentary to light categories of labor. In making this determination, the deputy noted “Dr. Buck opined the Claimant was capable of resuming her duties as a teacher after a six month period of light duty to work.”

The Court, in their review of the record, found that the agency had not erronesouly relied on the opinion of Dr. Buck and that the agency had actually cited other evidence supporting the conclusion that the Claimant was capable of teaching full time. The additional evidence cited was the opinion of Dr. Kuhnleing that the Claimant was capable of working in light to sedentary categories, that the Claimant’s personal physician noted the Claimant needed a job where she could change positions and finally that Dr. Bagheri had never restricted the Claimant from working. Due to that evidence, the Court could not conclude that the agency relied on Dr. Buck’s opinion in its finding. The decision of the district court was thus reversed.

Wendy Leavens vs. Second Injury Fund, No 2-376 / 11-1636 (Iowa Court of Appeal)

The Claimant, Wendy Leavens, began working for Maytag in 1994. In October of 2007, the Claimant filed a petition with the Commissioner for a December 20, 2006 injury. The Claimant alleged she had sustained bilateral carpal tunnel syndrome stemming from cumulative and repetitive employment duties. This petition was ultimately resolved through settlement which was approved by the agency in May of 2008. This settlement stated the Claimant suffered a permanent disability of six percent of the body.

In June of 2008, the Claimant filed a Second Injury petition which alleged a first injury to her right hand in 2000 and second injury of bilateral carpal tunnel syndrome on December 20, 2006. After hearing, the deputy found the approved settlement from May of 2008 was valid and due to the issues being of mutuality of interest between the employer and the Fund, that the Fund was without recourse. The deputy found the hand and wrist losses equaled a twenty percent disability of the whole person and awarded Second Injury benefits.

The Claimant applied for rehearing asserting that the deputy did not appropriately consider all her injuries. An amended decision was issued which stated that subsequent to the original arbitration decision, the controlling authority on the preclusive effect of settlement agreements had been expressly reversed. The deputy noted that under the new authority, “the only preclusive effect of an agreement for settlement between worker and employer is upon the parties who entered into that agreement, and the settlement does not establish the compensability of any injury or the extent of entitlement to disability benefits in a subsequent claim against the Second Injury Fund.”

The deputy then found that the Claimant had the burden of proving that the injury was a proximate cause of the disability on which her claim was based. The deputy held that the Claimant failed to meet the burden of proof and was not entitled to an award of benefits from the Fund. On appeal to the commissioner, it was held that the deputy appropriately relied on the new authority. The ruling was subsequently upheld by the District Court. The Claimant then sought review with the Court of Appeals.

The Court first noted that they would only reverse in this case if it was found the agency decision was based on an erroneous interpretation of Iowa law. The Court next stated that the Claimant had entered into a settlement in regards to her December 20, 2006 injury under Section 85.32(2) and stated that under this code section, “The parties may enter into an agreement for settlement that establishes the employer’s liability, fixes the nature and extent of the employee’s current right to accrued benefits, and establishes the employee’s right to statutory benefits that accrue in the future.”

The Court then found in this case that the Claimant sought to use issue preclusions offensively because in the second action with the Second Injury Fund, the Claimant relied upon a former judgment as conclusively establishing in her favor an issue which she must prove as an essential element of her cause of action. The Court then stated that Iowa law was clear that issue preclusion required the issue be actually litigated in the prior proceeding. The Court further found that in this case, the employer and the Claimant stipulated to a compensable injury to the Claimant’s bilateral arms arising out of her employment but that the issue of liability was never actually raised and litigated before the agency. The Court then stated the Claimant would still have to establish that the party sought to be precluded (the Fund) was afforded a full and fair opportunity to litigate the issue in the action. The Court finally found that the Fund was not a party to the settlement and did not have an opportunity to fully and fairly litigate the issue of liability. The Court found the agency’s decision was not based on an erroneous interpretation of the law, and therefore affirmed the decision of the district court.

The Court next turned its attention to the issue raised by the Claimant as to the weight the commissioner gave to certain medical reports. The Court ultimately found that working backward in this case from the commissioner’s appeal decision to the deputy’s amended and substituted arbitration decision, the Court was able to “deduce what must have been the agency’s legal conclusions and findings of fact.” The deputy considered the evidence before him and concluded the opinion provided by Dr. Jones did not outweigh the opinions of Drs. Formanek and Quenzer. Further, he noted that he considered the record as a whole. The court noted that the Claimant asserted the deputy improperly relied on reports wherein Drs. Formanek and Quenzer responded to defense inquiries. The Claimant alleged she was “winning her case until the deputy came to the summary, leading, wish-list reports.” The Court found that while the Claimant is correct that the deputy analyzed Dr. Formanek’s and Dr. Quenzer’s responses to the defense inquiries, there is nothing in the record to indicate these inquiries and responses constituted the entire basis on which the deputy’s decision was founded. Ultimately the Court the denial of the rehearing was not unreasonable, arbitrary, capricious or an abuse of discretion.

The Court finally turned its attention to the finding of that the Claimant did not sustain a permanent disability as a result of her December 20, 2006 injury. The Court agreed with the district court that substantial evidence supports the agency’s denial of Fund liability because the Claimant failed to prove before the agency an impairment to a second qualifying scheduled member. The Court further recognized that the evidence relied on by the agency was “not insubstantial merely because a contrary inference is supported by the record.” Factual findings were vested in the discretion of the agency, and the Court found that because the findings in this case are supported by substantial evidence, they were bound by these findings.

The decision of the district court was then affirmed.

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

For July 2011-September 2011 case law update please click here