Simon
Law Group, P.C.
720
Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI
WORKERS’ COMPENSATION CASE LAW UPDATE
October 2022 – December 2022
Tripping Over Pallet is Not a
Hazard Which Employee is Equally Exposed Outside of Work
Burns v. Wal-Mart
Associates, Injury No. 20-025625
FACTS: Claimant testified that her injury at work
occurred on April 24, 2020. She stated that as she was walking from the break
room to her workstation in the self-checkout section of the store, she tripped
on a pallet on the floor. She stated that she did not remember actually
falling. Her next memory was sitting on the pallet with a paramedic helping her
to get up. She alleged injuries to her head and left shoulder.
Although the ambulance and
emergency room records indicated that claimant might have experienced a syncope
episode or fainted, there was no evidence showing that the first responders or
the emergency room personnel asked claimant whether she had fainted or
experienced a syncope episode. There was no evidence showing that they had even
asked claimant what happened. In addition, the ambulance records indicated that
claimant was not oriented as to the time, meaning that she was confused and the
medical records confirmed that she was knocked unconscious and suffered a
concussion when she struck her head on the hard floor surface or pallet. She
testified to short-term memory problems as a result of her concussion. Wal-Mart
did not deny that it left a pallet impeding the trafficway or aisle where
claimant fell however argued that the injury did not come from a hazard or risk
unrelated to the employment to which workers would have been equally exposed
outside of an unrelated to the employment in normal non-employment life. The
ALJ awarded benefits and the claimant appealed.
HOLDING: The
Commission found that while it is true that claimant was walking when she
tripped on the pallet and fell and that she walks in her personal
non-employment life, there was a clear nexus in claimant’s case between her
injury and her work and her risk for the injury. The Commission noted that the
focus should have been on her tripping and falling on a pallet Wal-Mart left in
a congested aisle in the store and not merely on her walking as she does in her
personal non-employment life or whether she possibly could have tripped on some
pallet in her personal non-employment life.
Thus, unlike the Johme
case, where Ms. Johme’s work had nothing to do with the risk of her twisting
and turning her ankle and falling off her sandal, claimant’s work was the cause
of her injury when she tripped on a pallet Wal-Mart left in a congested aisle
and falling and injuring her head and shoulder. In addition, there was no
evidence showing that claimant was “equally” exposed to the same risk of
tripping on a pallet and falling in her personal non-employment life.
Therefore the Commission affirmed
the ALJ’s Award and decision.
Work Accident Was Not the Prevailing Factor, Because Based on Credible Expert
Testimony and Prior Medical Records, Claimant Had Symptoms Prior to Date of
Injury
Taylor v. Darden Restaurants, Inc./Olive Garden, Injury No. 17-098731
FACTS: On December 13, 2017, claimant injured her neck while
at work. She bent over to locate a lid, straightened up, and a box fell from a
shelf, striking her on the head. At the time of the incident, she was working
under permanent light duty restrictions as a result of having a cervical fusion
in January 2017 as a result of a May 3, 2015, work injury.
After
her December 13, 2017 work injury, she was referred to Dr. Mirkin by Concentra who
stated that the claimant had no symptomology prior to the December 13, 2017
incident and developed symptoms that correlate with her MRI findings after the
2017 incident. He opined that the prevailing factor in her need for treatment
was the December 13, 2017 incident working at Olive Garden.
Following
the December 13, 2017 work injury, Dr. Bernardi noted in his IME report the
claimant’s ongoing symptoms after her January 30, 2017 cervical surgery and
before the December 13, 2017 work injury. He opined that the claimant had a
poor result from her January 30, 2017 surgery and that her current symptoms
most likely represent chronic cervical myeloradiculpathy related to her prior
work accident in May 2015 and that the more acute symptoms were related to an
aggravation of her residual cervical stenosis. He further found that the
claimant sustained no PPD to her cervical spine attributable to her December
13, 2017 work injury. The ALJ found that the employer was responsible for
treatment and the employer appealed.
HOLDING: The Commission noted that based on the expert opinion
of Dr. Bernardi, it was not persuaded that the claimant’s December 13, 2017
work injury was the prevailing factor causing her current cervical condition
and need for surgery. They discredited Dr. Mirkin’s contrary opinion because it
was based on his incorrect assumption that the claimant had fully recovered and
had no physical complaints or limitations after her January 30, 2017 cervical
surgery and before the December 13, 2017 work injury. Therefore, the Commission
reversed the ALJ’s temporary or partial Award for additional medical treatment
regarding the cervical spine.
Claimant Met Objective Standard of Extraordinary and Unusual Stress
Involving Police Shooting Incident
Dahman v. City of Clinton,
Injury No. 17-090567
FACTS: On August 6,
2017, claimant was working as a police officer for the City of Clinton when he
heard a radio report from his co-worker and friend, Officer Michael, that shots
had been fired and that an officer was down. Claimant immediately responded and
found Officer Michael on the ground with another officer attending to him.
Officer Michael was still alive when claimant arrived.
Claimant was tasked with the duty
of responding to where the suspect’s vehicle had apparently crashed after the
shooting. He had to stay at the scene for most of the evening into the early
morning to secure it. He later learned that evening that Officer Michael had
passed away.
Subsequently, the City of Clinton
took immediate measures to provide counseling to claimant. He then sought
treatment with his family physician for anxiety. Thereafter, he left the City
of Clinton to work as an insurance adjuster, with this event being the main
factor for him leaving his position. However, his employment as an adjuster
ended when he failed to show up to work on a number of occasions for symptoms
which he attributed to the shooting event.
Prior to the shooting, claimant
had other events in his life including responding to the death of a child as an
officer and issues with alcohol use. However, he did not take any medication
for anxiety, did not have difficulty sleeping, or other symptoms.
Dr. Logan, the employer’s expert,
diagnosed claimant with PTSD, mild major depression, and alcohol use
disorder. He opined that the August 6, 2017 shooting event did rise to the
level of extraordinary and unusual mental stress. He also rated claimant’s PPD
at 10% of the body.
Dr. Halfaker, the claimant’s
expert, opined that the event of August 6, 2017 and the stress that it caused
was both extraordinary and unusual. He provided a 10% to 14% disability of the
body.
HOLDING: Pursuant
to the statute “Mental injury resulting from work-related stress does not arise
out of and in the course of employment, unless it is demonstrated that the
stress is work-related and was extraordinary and unusual. The amount of work
stress shall be measured by objective standards and actual events”.
The objective standard for
determining whether claimant’s stress was compensable is whether the same or
similar actual work events would cause a police officer extraordinary and
unusual stress. The claimant must demonstrate the actual events he experienced
were such that a reasonable policeman would experience extraordinary and
unusual stress.
The City of Clinton argued that
police officers’ shootings are not extraordinary, but the ALJ declined to
accept this reasoning. The particular facts of claimant’s experiences,
including but not limited to, responding to the scene of Officer Michael’s
shooting which was a friend, knowing the suspect was still at large and had a
long rifle, and knowing that the protective vest would not help along with
claimant feeling like a sitting duck in the dark, are all factors in support of
the Award for compensation to the claimant.
The ALJ awarded the claimant 10%
PPD of the body as a result of the events of August 6, 2017. The Commission
affirmed the Award and decision of the ALJ.
Claimant Has Burden of Proof
to Show That a Contract of Employment Was Entered Into in the State of Missouri
to Establish Jurisdiction
Wulf v. Tradesmen
International, Inc., Injury No. 18-113120
FACTS: The sole
issue to be addressed was jurisdiction. The accident occurred on November 14,
2018 in Marietta, Georgia.
The employer/insurer disputed and
denied that Missouri had jurisdiction. They admitted that the Kansas Division
of Workers’ Compensation had jurisdiction over this claim and admitted claimant
sustained a compensable injury. Benefits were immediately started and continued
under the Kansas Workers’ Compensation Act.
Claimant testified that he
originally applied for employment with Tradesmen, the employer, in July or
August of 2013. He filled out an application online at the job center in
Leavenworth, Kansas where he was living at the time. Following his completion
of the application, he was invited to the Tradesmen office located in Kansas
City, Kansas for an interview.
The claimant and Tradesmen had a
rather unique employment relationship. Claimant did not have an office which he
reported to on a daily basis. Instead, he reported to whatever project might be
available for the clients of Tradesmen. All job assignments were provided by
way of telephone call or text messages to him, at times daily, or a weekly
basis. However, there was a sporadic nature to claimant’s employment
assignments. There would be times when he was working full regular duty, and at
other times, there would be gaps in employment of two months, six months, or
longer.
In September 2017, claimant was
laid off from a different employer. As he was in his car, his phone flashed
that Tradesmen was calling about a job assignment. This was a brief phone call.
Claimant then received a text message with more information about the job
assignment in Overland Park, Kansas. The ALJ determined that Missouri did not
have jurisdiction over this claim and the claimant appealed.
HOLDING: Pursuant
to statute, Missouri has jurisdiction only under three circumstances: (1) when the
injury occurs in Missouri; (2) when the claimant’s employment is localized in
Missouri in 13 weeks leading up to the date of injury, and (3) when the
contract of employment was entered into in Missouri.
In this case, the claimant was
injured in Georgia and all of claimant’s employment in the 13 weeks prior to
the injury occurred either in Kansas or Georgia. With regard to the contract of
employment, it was entered into in Kansas in August of 2013. The claimant
conceded that he had an interview at the Kansas City, Kansas office of
Tradesmen and was offered employment at that time.
To form a contract, there must be
a meeting of the minds between the parties. That occurred in August of 2013.
However, there was no “meeting of the minds” to form a new contract of
employment in September of 2017. It was the claimant’s burden of proof to convince
the Court there was somehow a new contract of employment during this brief
phone call with the representative from Tradesmen. The pattern and practice of
conduct between the parties clearly demonstrates otherwise. Therefore the
Commission found that the claimant failed to sustain his burden of proof and Missouri
does not have jurisdiction. Therefore the Award of the ALJ was affirmed.
Work Injury Alone Sufficient
for PTD Where Restrictions Are Result of Accident Despite Significant
Pre-Existing Conditions
White v. Schrieter
Materials LLC and Treasurer of Missouri as Custodian of Second Injury Fund,
Injury No. 18-046371
FACTS: On June 14,
2018, the 65-year-old claimant was working on the back end of a concrete mixer
truck and fell to the ground striking his head and breaking his arm. Due to the
accident, he suffered closed head trauma with subdural hematoma, nasal
fractures, comminuted left wrist fractures, a cervical fracture, and severe
contusion to the right calf. After the accident, the claimant was transported
to Mercy Hospital and underwent an open reduction internal fixation of the
distal radius fracture to his left wrist. For his C7 end plate fracture, he
received non-operative conservative treatment. He was discharged from the hospital
two days later on June 17, 2018. Thereafter he began occupational therapy, and
then physical therapy.
It was noted that claimant
continued to use a cane at times after his work injury, but this was because of
left hip pain which was unrelated to the work-related injury. The claimant had
a number of pre-existing conditions. He suffered a prior work-related injury
from a 2006 motor vehicle accident and was awarded PPD of 25% of the cervical
spine, 1% of the nose, 2% of an eye, 10% for seizures, 15% of the left
shoulder, 3% of the left knee, 2% for a rib injury, 8% of the lumbar spine, and
15% for depression.
With respect to the June 14, 2018
work accident in question, Dr. Volarich opined that the claimant had
significant restrictions for his post-concussion syndrome and confirmed that
these restrictions related solely to his June 14, 2018 accident. The claimant’s
testimony also supported the restrictions provided by Dr. Volarich as a result
of the head injury from the June 2018 accident.
It was further noted that the
defense did not directly impeach Dr. Volarich’s findings regarding the
claimant’s closed head injury. Also, Dr. Randolph examined the claimant and
found that the episodes of vertigo and dizziness were largely resolved, but Dr.
Volarich found that claimant had significant residual complaints relating to
vertigo and dizziness.
HOLDING: The ALJ
determined that the evidence was persuasive that the 2018 work injury
considered alone was sufficient to render the claimant unemployable in the open
labor market. Due to the injuries sustained in the 2018 accident, the claimant
had significant, ongoing and disabling symptoms that prevented him from
returning to any work. The Judge noted that given the two contrasting
perspectives, Dr. Volarich’s conclusions were more consistent with the other
evidence. He noted that while the claimant certainly had many pre-existing
disabling conditions, the claimant’s disabilities from the work injury from
this occurrence were sufficient to render him permanently and totally disabled.
Based on the weight of the evidence, the claimant was awarded permanent total
disability benefits from the employer/insurer. Because the employer was found
liable for the permanent and total disability, the claim against the Second
Injury Fund was denied. The Commission affirmed the Award and decision of the
ALJ.
Prior Disabilities Must
Individually Meet Fifty Week Threshold for SIF Liability for PTD
Adams v. Treasurer of the
State of Missouri – Custodian of Second Injury Fund, Case No. WD84818 (Mo.
App. 2022)
FACTS: The material
facts were undisputed. Claimant suffered three significant work-related
injuries during his career.
In 1984, claimant tore ligaments,
tendons, and nerves in his left hand which resulted in reconstructive surgery.
He settled his claim for 32.5% of the left wrist or 56.875 weeks of disability.
In 2001, claimant fell off
scaffolding while working. His doctor found 35% PPD of the right leg, 35% of
the left leg, and 7.5% of the lumbar spine. The employer’s doctor provided a 5%
PPD rating of the right leg, 3% of the left leg, 2% of the lumbar spine, or 5%
of the body as a whole for all three disabilities.
The claimant settled his 2001
injury against the employer based on “approximate” disability of 15% of the
body referable to bilateral knees and low back which was 60 weeks of
disability. The Compromise Settlement does not provide a breakdown of weeks of
disability attributed to the low back or each knee.
On September 17, 2015, claimant
sustained his final work-related injury. His right hand was crushed and his
right shoulder injured when his hand was pinned between a jack handle and the
bottom of a trailer. Surgery was performed. Thereafter, claimant filed a
workers’ compensation claim against his employer for PPD and a claim against
the SIF for PTD.
The ALJ issued his final Award
concluding that the claimant was PTD due to the primary injury together with
his prior disabilities from the 1984 injury and the 2001 injury.
The SIF appealed the ALJ’s Award because
the disabilities which resulted from the 2001 injury did not qualify under
Section 287.220(3)(a). They noted that the 2001 injury resulted in disabilities
to two specific body parts, the knees and the back, that do not separately meet
the 50-week threshold.
The Commission reversed the ALJ’s
Award finding the SIF had no liability. The claimant appealed.
HOLDING: The
claimant appealed the Commission’s Final Award denying compensation from the
SIF. Claimant claimed the Commission erred in failing to find the SIF liable
for claimant’s combined disabilities from his work-related 2001 injury
because together they met the 50-week threshold required by Section 287.220.3.
It was noted that the Commission found
“as a factual matter, that pre-existing disability relating to employee’s
(2001) work injury did not result in PPD of at least 50 weeks to either
employee’s back or bilateral knees”. Also, that in 2001, the SIF entered into
this Compromise Settlement does not also infer or result in an agreement that
the disabilities meet the current statutory requirements of Section 287.220.3.
Rather, the Court noted that they were bound by the Commission’s factual
determination that the Compromise Settlement does not presently satisfy the
statutory requirements of Section 287.220.3. It was noted that the
settlement contract clearly states that “There are disputes between the
parties” and “because of the dispute…the parties…enter into a compromise lump
settlement…” Based upon “approximate disability”. In doing so, the Court noted
the Compromise Settlement simply agreed to an approximated and cumulative
disability rating for purposes of settlement without separately rating the
individual disabilities themselves, a function necessary to determine whether
either qualifies as a pre-existing disability as defined by Section
287.220.3(2).
The Court further noted that both
the claimant’s and Dissent’s use of pre-2005 Missouri caselaw recognizing the
“body as a whole” approach in construing Section 287.190.3 is not persuasive.
Their cited cases analyze the prior statutory framework that called for a liberal
construction of the provisions of Chapter 287.
The Court noted that the claimant
interpreted the prior decision in Parker to mean that all
disabilities which are the direct result of a compensable injury or to be
combined to determine if the 50-week threshold is met. However, the claimant’s
interpretation was incorrect. It was noted that not only was it at odds with
the current statutory framework calling for strict construction, but it was
also contrary to the holding in Parker which required that each
of the pre-existing disabilities must qualify on its own under Section
287.220.3(2)(a) to be considered.
Therefore, the Court concluded
that the Commission’s findings were supported by substantial and competent
evidence. The claimant failed to establish a qualifying pre-existing disability
which, with his primary injury would entitle him to PTD benefits from the SIF
pursuant to Section 287.220.3. Accordingly, the Commission’s decision was
affirmed.
To Establish a Claim Against the SIF, The Claimant Must Meet the Burden of Persuasion That a New or Second Injury Occurred
Danner
v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No.
14-050921
FACTS:
The claimant testified at a Hearing that on June 4, 2014, as she lifted a
patient’s legs to place a wedge underneath them, she felt a pop and immediate
pain in her low back. The following day, she sought treatment.
On July 17, 2014, the claimant
claimed that she injured her low back again while lifting a patient from the
floor to a mattress on the floor. At a Hearing, the claimant testified she felt
worsened pain in the “same spot” and that she “aggravated the back” injury from
June 4, 2014. She finished her shift and then returned to Dr. Boyett with whom
she was treating for her June 4, 2014 injury.
The ALJ found the claimant to be
a credible witness as her demeanor was clear and direct and her testimony was
consistent with the exhibits in evidence. The Judge also found that claimant is
unemployable on the open labor market and was thus permanently and totally
disabled.
However, the Judge noted that Dr.
Hopkins stated that based on the short period of time between her two injuries
with the injuries in the same portion of her body, the doctor believed that her
low back injury on July 17, 2014 was a continuation of her first injury just
over one month prior. This was consistent with the expert medical testimony of
Dr. Robson and Dr. Bailey who both opined that the July 17, 2014 incident was an
aggravation or continuation of the June 4, 2014 injury.
Considering all of the medical
evidence, along with claimant’s testimony, the Judge found that based upon the
overwhelming majority of the expert medical evidence and claimant’s credible
testimony, that the claimant failed to meet her burden that she suffered a new
and distinct work injury on July 17, 2014. The Court found that the June 4,
2014 work injury in isolation was the prevailing factor causing claimant’s
medical condition and disability.
Since the Judge found that the
claimant did not suffer a new or distinct work injury on July 17, 2014 but that
the claimant’s injuries and disability were the result of the work injury on
June 4, 2014, the Court concluded that there was no work injury subsequent to
June 4, 2014 that combined with a pre-existing disability to result in the
claimant’s permanent total disability. Therefore, the Judge determined that the
claimant had failed to meet her burden that the SIF is liable to her for PTD
benefits.
HOLDING: The
Commission affirmed the Award and decision of the ALJ. The Commission noted the
Supreme Court of Missouri’s recent decision in March v. Treasurer of the
State of Missouri-Custodian of Second Injury Fund (2022). In that case, the
Commission denied a post 2014 SIF claim for PTD where the SIF produced no
evidence and the Commission did not discredit the claimant’s experts. The Court
held the fact that the SIF did not offer contradicting evidence and did not
cross-examine the claimant did not establish a “presumptively valid claim”.
The
Commission emphasized that to establish a claim, the claimant must not only
meet the burden of production but also the burden of persuasion. In this
matter, the Commission found that the claimant’s evidence, though not
controverted, is insufficient to support her claim. Therefore the decision and
Award of the ALJ was affirmed.
Settlement of Civil Suit
Against Uninsured Employer Barred Recovery From Second Injury Fund for Medical
Expenses Under Workers’ Compensation Statute
Hood v. Michael Menech, Vandalia Area Historical Society and Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. ED110331 (Mo. App. 2022)
FACTS:
On August 20, 2012, claimant was injured when he was working as a carpenter on
property owned by the Vandalia Area Historical Society. He was hired by Michael
Menech. At the first Hearing, the parties stipulated that neither Vandalia nor
Menech carried workers’ compensation insurance. The Judge issued his initial
decision finding that Menech was the claimant’s employer, the claimant had
incurred $51,183.42 in past medical expenses due to the work-related injury,
and the Second Injury Fund was required to reimburse the claimant for past
medical expenses and pay future medical benefits pursuant to Section 287.220.
On appeal, the Commission issued a Temporary Award ordering the SIF to pay only $23,226.27 in past medical expenses and to provide claimant with future medical care necessary to cure and relieve the effects of the injury. The Commission noted that the Award was only temporary or partial until further final Award was made.
The claimant
also filed a civil action against Vandalia and later amended his Petition to
add Michael Menech and additional co-employees as Defendants. Subsequently, the
claimant settled his civil suit against all Defendants for $53,000.00. With
respect to claimant’s medical bills, the settlement agreement stated that all
medical bills must be paid by the claimant from the settlement amount of
$53,000.00.
On December
9, 2020, the parties appeared for a final Hearing before the Judge on the
claimant’s workers’ compensation claim. The Judge found that, under the
Election of Remedies Doctrine, the claimant was not entitled to workers’
compensation benefits from Menech, Vandalia, or the SIF. Further, the Judge
ordered claimant to reimburse the SIF for the $23,226.67 it paid to claimant
pursuant to the Temporary Award.
On Appeal,
the Commission affirmed the ALJ’s decision stating that the Election of
Remedies Doctrine applies and it barred the claimant from recovering the
payment of his medical bills by the SIF due to his settlement of the civil
suit.
HOLDING:
The Court of Appeals affirmed the Commission's decision denying claimant’s
workers’ compensation benefits and ordering him to reimburse the SIF
$23,226.27.
The Court
noted the general statement of the law in Brookman v. Henry Transportation
that if an employer is not insured and does not qualify as a self-insurer, an
employee who is injured in the course of employment can elect to file a
workers’ compensation claim or can bring suit against the employer in
Circuit Court, but not to both.
In this
matter, the Court noted, that although claimant’s civil action included
additional parties as co-defendants and its workers’ compensation claim included
the SIF, because Menech was party to both the workers’ compensation claim and
the civil action, the Election of Remedies Doctrine governs. The claimant’s
civil action and settlement with Menech barred the claimant from receiving
benefits under the workers’ compensation statute under the Election of Remedies
Doctrine. The claimant elected his remedy when he accepted the $53,000.00
settlement payment in his civil action against Menech and Vandalia.
Claimant is Not a Statutory
Employee Unless Performing Activities Within the Usual Business of Alleged
Employer
Brooks v. William J. Laurie and Crown Center Farms, Inc., Case No. WD85031 (Mo. App. 2022)
FACTS:
The claimant suffered an injury while he was employed as a superintendent
for Little Dixie Construction while cutting down trees at Big Buck Resort. He
was injured when a tree was cut by Defendant Laurie and fell down on him.
Laurie was a shareholder and member of Big Buck Resort. Laurie also co-owned
Crown Center Farms which employed Tim Cullen to assist with maintaining and
caring for Crown Center Farms and various properties owned by Laurie including
helping to manage Laurie’s hunting area at Big Buck.
On the day of
the incident, Laurie contacted the claimant and requested his assistance at Big
Buck. On that day, the people working at Big Buck included the claimant,
Laurie, Cullen, and two additional laborers. Following the incident, the claimant
filed a workers’ compensation claim against Little Dixie Construction for the
injuries sustained while working at Big Buck. The claimant also filed a civil
suit against Laurie, Crown Center Farms, and Big Buck.
The Court
dismissed the lawsuit based on a Summary Judgment as it found Crown Center
Farms was a statutory employer of claimant, so as to trigger the exclusive
remedy provision of the workers’ compensation law. It also found Laurie was an
employee of Crown Center Farms so as to shield Laurie from liability under the
workers’ compensation law. The claimant appealed.
HOLDING:
The Appellate Court reversed the trial Court’s judgment and reinstated the
lawsuit. The Court stated that pursuant to statute for a person to be a
statutory employer, the work done under the contract on the premises must be
“an operation of the usual business which he there carries on…”. It noted that in
this case there was a genuine issue of material fact regarding whether the claimant
was injured while doing work in the usual course of Crown Center Farms’
business in order to qualify as a statutory employee. Specifically, the cutting
of trees at Big Buck was rarely performed and Big Buck usually employed a
professional logger to clear the property.
The Court did
not find that the claimant was performing work that was within the usual
business of Crown Center Farms. Also, Laurie was not entitled to the protection
of the workers’ compensation law under immunity as an employee of Crown Center
Farms as Crown Center Farms was not the claimant’s statutory employer.
