Simon
Law Group, P.C.
720
Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI
WORKERS’ COMPENSATION CASE LAW UPDATE
October 2021 – December 2021
Need
for Total Knee Replacement Necessitated by Work Injury
Rogers v. Marion C. Early R
V School District, Injury No. 15-093845
On November 19, 2015, the
claimant was running across a grass covered area to answer a fire alarm when he
stepped in a hole, twisting and injuring his left knee. He underwent an MRI
which showed an oblique tear of the medial meniscus. On January 13, 2016, Dr.
Goodman performed a left knee arthroscopy and debridement of the meniscal tear.
On April 4, 2016, Dr. Goodman performed a second left knee arthroscopy and debridement
of the meniscal tear after the claimant was diagnosed with a recurrent medial meniscal
tear with mechanical symptoms. The claimant’s symptoms persisted and on January
11, 2017, Dr. Goodman opined that a total knee replacement was warranted and
stated that the meniscal pathology was work related, but the arthritis was not.
The employer/insurer denied additional treatment. The claimant sought treatment
with Dr. Mahnken who performed a left total knee replacement on April 21, 2017.
The claimant obtained a report
from Dr. Hopkins who opined that the left knee injury on November 19, 2015 was
the direct and prevailing factor in necessitating the left knee replacement.
Dr. Stuckmeyer also opined that the November 19, 2015 injury was the prevailing
factor requiring a left total knee replacement. The employer obtained a report
of Dr. Mall who opined that he did not believe the need for total knee
arthroplasty in any way flowed from the work accident but was related to the degenerative
process that had already started prior to the work injury. Dr. Goodman opined
that the claimant’s arthritis was the prevailing factor and cause for the need
of a left total knee arthroscopy and the arthritis was not part of the work
injury.
The ALJ opined that the left
total knee replacement was necessitated by the work injury and noted there was
no medical evidence presented that he had any prior injuries or conditions with
the left knee which would have led to his need for a total knee replacement. Therefore,
the employer was responsible PPD, TTD, and past and future medical treatment. The
Commission affirmed the Award of the ALJ.
Claim Denied as Claimant’s
Injuries Sustained in Motor Vehicle Accident After Choking on Breakfast
Sandwich Not Sustained in Course and Scope of Employment
Booth v. DISH Network Inc.,
Case No. SC98948 (S. Ct. 2021)
FACTS: The
claimant, an installer for DISH Network was injured in a single car accident in
a DISH van which he was driving on the way to his first job of the day. He
choked on a breakfast sandwich, blacked out, and crashed into a pillar on the
side of the highway. The claim was denied by the employer. The case went to a
hearing and an ALJ awarded benefits concluding that the risk source was having
to travel on a rural highway on a strict timeline in a DISH van. The employer
appealed and the Commission reversed the decision of the ALJ finding that the
risk source was actually the claimant’s decision to eat a breakfast sandwich
while driving. The Commission found there was no aspect of the claimant’s work
that required him to eat breakfast while driving and the employer prohibited
him from doing so. The claimant appealed and the Appellate Court disagreed and
concluded that the claimant’s injury occurred within the course and scope of
the employment. The employer then again appealed.
HOLDING: The Supreme
Court concluded that the claimant’s risk source was eating while driving which
created a risk of choking and led to the accident resulting in injury. The
Court noted that DISH did not require him to eat breakfast after starting work
for the day and as the claimant acknowledged he could have had breakfast before
he began work. The claimant argued that aspects of his job such as the tight
schedule, limits on the ability to eat lunch, and driving on certain roads
played a role in the accident, but the Court found these arguments
unconvincing. The Court concluded that the claimant failed to establish that
his injury arose out of and in the course of employment and therefore the
Commission’s decision denying benefits was affirmed.
Testimony
of a Vocational Expert Relying on Hearsay Found Admissible
Otwell v. Treasurer of
Missouri as Custodian of The Second Injury Fund, Case No. ED109447 (Mo.
App. 2021)
FACTS: The claimant
developed bilateral carpal tunnel syndrome and underwent surgery in April of
2009. She filed a claim for PPD and settled with the employer in February of
2010. In January of 2016 the claimant amended her claim, seeking coverage under
the Fund for PTD due to a combination of her bilateral carpal tunnel syndrome
in combination with pre-existing disabilities of a prior shoulder injury,
incontinence, and psychiatric illness.
Mr. Lalk, a vocational expert for
the claimant, concluded that she was unable to maintain employment in the open
labor market and was PTD. Mr. Lalk reviewed various records and reports
including a 2012 report prepared by Dr. Shuter who had performed an IME but who
died before testifying. The SIF attorney on cross asked whether Mr. Lalk relied
on Dr. Shuter’s report in reaching his conclusions and Mr. Lalk stated he had. On
this basis, the SIF objected to the admission of Mr. Lalk’s testimony. The ALJ
agreed and excluded the entirety of the Mr. Lalk’s testimony and his report as
inadmissible hearsay. The claimant also introduced testimony from Dr. Volarich
and the ALJ ruled to exclude the portion of Dr. Volarich’s testimony where he
concurred with Mr. Lalk’s assessment that the claimant was PTD due to a
combination of the primary injury and her psychiatric disability.
The ALJ found in favor of the
claimant and awarded her PPD against the Fund. The ALJ denied the claimant’s
claim for PTD finding no substantial evidence that the claimant suffered from a
significant pre-existing psychiatric disability. The Commission affirmed and
adopted the ALJ’s Award of PPD with minor changes and found that the claimant
was not entitled to PTD against the Fund. The claimant appealed.
HOLDING: The
claimant argued the Commission erred in excluding the entirety of Mr. Lalk’s
vocational expert testimony. The Court concluded the Commission abused its
discretion in excluding the entirety of Mr. Lalk’s testimony. They noted that
Missouri law does not prohibit an expert from relying on hearsay when entering
an opinion and found that although Mr. Lalk said in cross-examination that he
relied on Dr. Shuter’s report, the Court rejected this response as dispositive
on the issue of reliance because the broad definition of the term upon which
the Fund’s counsel posed their question. The Court noted that Mr. Lalk made
limited reference to Dr. Shuter’s report and referred to numerous other medical
providers and therefore they were persuaded that the Commission’s ruling to
exclude the testimony was against the logic of the circumstances and displayed
a lack of careful deliberate consideration. The Court reversed the decision and
directed the Commission to admit Mr. Lalk’s testimony and reconsider the Award
in light of the testimony.
Expert Need Not Have
Specialized Knowledge of Workers’ Compensation Law to Qualify as Expert Witness
Laura Williams, Jennifer
Williams, Courtny Williams, and Kennedy Williams v. Reed, LLC, Case No.
SD36883 and SD36892 (Mo. App. 2021)
FACTS: Jacob
(claimant) was the sole member of the employer, an automotive parts and repair shop.
Jacob’s wife, Laura, kept Reeds’ books. Jacob was not on the payroll as an employee,
and he reported no wages but took a weekly draw of $600 or more by writing
checks to himself on the business checking account and used the account for
personal expenses. In 2015, Jacob was killed in a work-related accident. Laura
and Jacob’s then minor daughters from a prior marriage, Courtny and Kennedy,
filed claims for workers’ compensation benefits. Prior to the hearing before
the ALJ, Courtny turned 18.
The ALJ admitted deposition
testimony from the daughters’ expert, an attorney with experience in family law
but little or no training or experience in workers’ compensation law or tax
law. The expert testified that when calculating child support, income would be
imputed when a parent owns a business, and their income is more difficult to
ascertain that that of a salaried employee. The expert calculated Jacob’s
earnings to be $62,100.13 for the year immediately preceding Jacob’s death, or
an average weekly wage of $1,194.23.
The employer offered testimony
from a CPA who testified that the company’s net profit reported on tax returns
would be a proper measure of earnings for the LLC’s sole member and testified
that the tax returns showed net profits of $13,127 in 2014 and $13,337 in 2015.
The ALJ credited the testimony of the daughters’ expert and found Jacob’s
average weekly wage was $1,194.23 resulting in a weekly compensation rate of
$796.15. The ALJ found Courtny remained a dependent because she was enrolled at
a community college and compensation was to be apportioned equally between
Laura, Courtny, and Kennedy until one was no longer eligible.
The employer challenged the
admission of testimony from the daughters’ expert, the compensation rate, and
Courtny’s dependency. The Commission affirmed the ALJ’s average weekly wage
calculation but determined that Courtny’s dependency terminated on her 18th
birthday because she had enrolled in only three course credits for the semester
during which she turned 18, which was not a full-time course load. The
daughters appealed and the employer cross appealed.
HOLDING: The Court
found that the daughters’ expert did not need specialized knowledge of workers’
compensation law to be qualified as an expert witness. It noted that when §287.250.4
applies, as in this case, the standard wage formula does not apply and what is
relevant and helpful is testimony about methods and considerations to calculate
an employee’s wages fairly which is what the daughters’ expert provided. The Court
noted to the extent that the employer argued the methods of the daughters’
expert were not as compelling as the employer’s expert the Court must defer to
the Commission’s determinations. The Court concluded that the Commission did
not abuse its discretion in admitting and relying on testimony from the daughters’
expert and that the Commission’s findings of fact as to Jacob’s average wage was
supported by the evidence.
Fund Liable for Benefits as
Priors Met Criteria for Fund Liability
Marberry v. Treasurer of
Missouri as Custodian of the Second Injury Fund, Case No. ED109554 (Mo.
App. 2021)
FACTS: On September
24, 2015, the claimant fall backwards and hit his buttocks and upper back and sustained
a whiplash injury to his neck. He was sent to Barnes Care and diagnosed with a
contusion of his low back and pelvis and an injury to his neck level.
With respect to his preexisting
condition, on July 19, 1999 sustained a work related cervical injury. He was
diagnosed with multiple disc herniations and settled the claim with his
employer for 20% PPD referable to the cervical spine. On October 7, 2002 he
again injured his neck at work and had surgery. Then on December 19, 2014 he
sustained an injury to his right shoulder at work. The claimant settled with
his employer for 34.8% of the shoulder.
Dr. Volarich assessed 10% PPD referable
to the lumbar spine and 35% PPD referable to the cervical spine as a result of
the work injury. He also assessed 35% of the shoulder as a result of the 2014
date of injury and 20% referable to his pre-existing neck injuries. He
concluded that the claimant was PTD as a result of his primary injury and the
2014 work injury in combination with each other as well as his pre-existing
medical condition. Mr. Lalk opined that he was not able to work in the open
labor market.
Dr. Chabot examined the claimant
at the request of the employer and found he sustained thoracic, lumbar and
cervical strain injuries as a result of the primary injury but did not attribute
any PPD as a result of the primary injury and instead believed his complaints
and PPD were associated with his 2002 neck injury and surgery.
The claimant settled his primary
claim with the employer for 13.4% referable to the cervical spine and went to a
hearing against the SIF. The ALJ found the claimant’s right shoulder could not
be considered in determining Fund liability because his right shoulder had not
reached MMI before the primary injury. The ALJ also found that the claimant’s
low back injury could not be considered in determining Fund liability because
it did not meet the 50-week PPD threshold. The ALJ concluded that the
claimant’s evidence did not meet §287.220.3 and only demonstrated he was PTD
from all his injuries, not just his primary injury and single qualifying
pre-existing disability. The Commission affirmed the ALJ’s decision. The
claimant appealed.
HOLDING: The
claimant argued the Commission erred in determining his right shoulder injury
and resulting disability could not be considered for Fund liability. He also
argued that the Commission erred by mischaracterizing his low back injury as a
prior injury. The Court found that the Commission erred by excluding the claimant’s
right shoulder disability from consideration as, per Parker, the statute
does not require the claimant to know his injury equals at least 50-weeks PPD
before sustaining his primary injury. The Court noted that the claimant settled
with his employer for 34.8% PPD which is more than 80-weeks PPD and that the
Fund did not present any other evidence to dispute the disability rating, and
therefore the right shoulder injury was a qualifying pre-existing disability
under §287.
With respect to his low back, the
Court noted that the Commission errored in prohibiting consideration of the low
back disability because it did not satisfy the 50-week PPD threshold. The Court
noted this applies only to pre-existing disabilities, not disabilities
resulting from the primary injury, and the undisputed evidence in the record
established that the claimant’s low back disability was a direct result of the
primary injury. The Court also found that the claimant was entitled to PTD
benefits from the Fund when considering the primary injury and his pre-existing
conditions. The Commission’s Award was reversed.
Commission's Decision Reversed After Substituting Own Opinion in Lieu of Qualified Medical Expert's Opinion
Lynch
v. Treasurer of the state of Missouri, Custodian of the Second Injury Fund,
Case No. ED109502 (Mo. App. 2021)
FACTS:
The claimant worked for the employer as a brewery worker from 1974 until
2009 performing physically demanding and repetitive tasks. His primary injury
was carpal tunnel syndrome for which he underwent releases in 2011. He settled
with the employer for 20% PPD of each wrist with a 10% loading factor. He
continued with his claim of PTD against the Fund, alleging he was disabled as a
result of a combination of his carpal tunnel syndrome and pre-existing
conditions/injuries which included:
·
neck and low back injury from a boating accident
in 1990
·
two work related injuries to his low back which
he settled
·
total hip replacements in 2003
·
osteoarthritis in both knees
·
injury to the left shoulder requiring surgery
·
injury to the right shoulder which required
surgery
·
right shoulder surgery immediately after his
2009 retirement
·
neck and back complaints shortly after his
retirement in 2009
The
claimant was evaluated by Dr. Woiteshek who found him PTD as a result of his
pre-existing disabilities combined with his primary work injury. The claimant’s
vocational expert, Mr. Cordray, found that his physical limitations precluded
all jobs in the competitive labor market. The Fund did not submit any evidence.
The ALJ issued an Award in favor of the Fund. The claimant appealed.
The
Commission made no credibility findings regarding the testimony of the claimant
or Dr. Woiteshek and neither was impeached. The Commission explicitly found Mr.
Cordray’s opinion neither credible nor persuasive as Mr. Cordray stated he did not
consider the claimant’s subjective complaints yet his report included a list of
such complaints. The Commission found that the claimant’s primary injury did
not contribute to his overall PTD but rather the claimant retired or removed
himself from the open labor market because of his pre-existing disabilities.
The Commission affirmed the Award of the ALJ. The claimant appealed.
HOLDING:
The claimant contended that the Commission ignored the only expert medical
opinion in the record and substituted its own personal opinion regarding the cause
of the claimant’s PTD. The Court agreed with the claimant. The Court noted that
the Commission did not find that the claimant was not credible nor was the
claimant impeached but the Commission simply relied on the claimant’s lack of
treatment for a specific diagnosis of carpal tunnel syndrome before he retired.
At the same time the Commission ignored other portions of claimant’s testimony
where he stated he had issues and problems with his hands and wrists but did
not know he had carpal tunnel syndrome until he was diagnosed. The Commission
also ignored the qualified medical opinion of Dr. Woiteshek entirely despite
the fact that he was neither impeached nor found not credible. The Court
therefore found that the Commission disregarded and ignored competent
substantial and undisputed evidence and instead relied on an excerpt from Mr.
Cordray’s report quoting Dr. Rotman, the employer’s expert, as saying the
claimant took early retirement for health issues mainly related to his heart,
when Dr. Rotman’s report was not in evidence and not contained in the record.
The Court found that the Commission’s decision was not supported by sufficient
competent evidence and was against the overwhelming weight of the evidence. The
Commission’s decision was reversed.
Fund
Not Responsible for PTD Benefits as No Evidence That All Claimant’s
Pre-existing Disabilities Met Threshold for Fund Liability
Clinkenbeard
v. Department of Corrections & Central Accident Reporting Office &
Treasurer of Missouri as Custodian of Second Injury Fund, Case. No. SD36942
(Mo. App. 2021)
On
October 28, 2014 the claimant, a correctional officer sustained an injury to
his elbow and shoulder. He received authorized care and Dr. Hicks performed a
left shoulder arthroscopy.
The
claimant did have a variety of preexisting conditions including a right
shoulder fracture, bilateral work-related knee surgeries, bilateral hip pain,
back pain, sleep apnea, a left wrist surgery, GERD/acid reflux, diabetes,
restless leg syndrome, cataracts and deafness. Dr. Volarich and Mr. Eldred
testified that the claimant was PTD as a result of the last injury along with
his preexisting conditions. The ALJ found that the Fund was responsible for PTD
benefits. The Fund appealed arguing that all the claimant’s preexisting
conditions did not meet Fund liability pursuant to §287.220.3.
The
Commission noted that Dr. Volarich and Mr. Eldred both concluded that the
claimant was PTD based on all the claimant’s preexisting conditions and
his primary injury. Since all the pre-existing conditions did not meet the
criteria for Fund liability the Commission concluded that the Fund was not
liable for benefits.
HOLDING:
The claimant argued that because one
of his pre-existing disabilities, a prior shoulder fracture qualified under §287.220.3
then all of his pre-existing disabilities must be considered in determining the
Fund is liable to pay him PTD benefits. The Court disagreed and noted that that
argument was inconsistent with the Supreme Court’s decision in Parker.
The claimant also argued that the Commission erred when it denied his request
to remand the case back to the ALJ. The Court noted that the Commission may
remand any decision of an ALJ for more complete Finding of Fact but it does not
require that the Commission remand a case as a matter of law. Therefore, the Commission
did not abuse its discretion not to remand the matter to the ALJ. Therefore,
the Commission’s decision was affirmed.
Co-employee
Immune from Liability for Claimant’s Injury Absent Intention to Cause or Increase
Risk of Injury to Claimant
Brock
v. Dunne as Defendant Ad Litem for Mark Edwards, Case No. SC97542 (S. Ct.
2021)
FACTS:
The claimant worked at JMC Manufacturing on its lamination line with Edwards, a
supervisor. JMC used a laminating machine with rollers that propelled sheets of
particle board through the machine. A safety guard rested over the bottom pair
of rollers and guarded the pinch point created where the bottom rollers met
each other. The guard could be removed from its position while the machine was
running to provide access to the bottom rollers. On April 30, 2013, Edwards
instructed the claimant to clean the glue off the rollers. Despite his
awareness of JMC safety rules and the machine’s warnings, Edwards removed the
safety guard while the machine was still running. The claimant then squeezed
water from a wet rag onto the rollers and the rag got caught and pulled the claimant’s
thumb into the pinch point, crushing it. The claimant underwent three surgeries
to repair his thumb but continued to have various restrictions due to the
injury. He applied for Workers’ Compensation benefits and also filed a petition
asserting product liability and negligence against the machine’s manufacturer
and a negligence claim against Edwards. Edwards died before the trial and Dunne
was substituted as Defendant Ad Litem.
Dunne
filed a Motion for Directed Verdict which was overruled, and the jury returned
a $1.05 million verdict in the claimant’s favor. Dunne then filed a Motion for Judgement
Notwithstanding the Verdict “JNOV” arguing that the claimant failed to make a
submissible case of common law negligence and Edwards was immune from liability
under workers’ compensation. This was also overruled. Dunne appealed.
HOLDING: The Court noted that the relevant portion
of the statute governing work place injuries and immunity for co-employees states
that “any employee of such employer should not be liable for any injury…and…shall
be released from all other liability whatsoever…except that an employee shall
not be released from liability from injury or death if the employee engaged in
an affirmative negligent act that purposefully and dangerously caused or
increased the risk of injury.” The Court noted that Dunne would therefore be
immune from liability for claimant’s injury unless the exception to the
immunity statute applied.
The
claimant argued that a factfinder could infer Edwards acted with purpose to
increase risk of injury to the claimant simply from the fact that Edwards
intentionally removed the safety guard knowing JMC’s safety rules and that the
machine’s manufacturer prohibited and warned against removing the guard during
operation. The Court opined that this required improper speculation and was not
reasonable and concluded there was not sufficient evidence to make a reasonable
inference that Edwards lifted the safety gate with the intention and purpose to
increase the risk of injury to the claimant. The Court noted that while the
injuries suffered were tragic, they were not the deliberate and deviant actions
of a co-worker who sought to cause or increase the risk of injury to a
co-employee. The Court noted that while evidence would support a finding that
Edwards acted outside the safety rules, this merely demonstrated he acted
negligently and not that he intended to cause or increase the risk of any
injury to Claimant or others. The Court concluded that Dunne was therefore
legally entitled to immunity under the statute and so the Circuit Court erred
in overruling Dunne’s Motions for Directed Verdict and JNOV.
The
Court also found that Claimant failed to make a submissible case of common law
negligence which requires the plaintiff to demonstrate a claim of negligence
and that the defendant co-employee breached a duty separate and apart from the
employer’s foreseeable duty to provide a safe workplace. The Court noted that
Edwards lifting the safety guard fell within the employer’s nondelegable duty
to provide a safe workplace and therefore any alleged negligence on the part of
Edwards in lifting the safety guard could not form the basis of common law
liability. The Circuit Court’s judgement was reversed.
ALJ
Has Authority Reopen a Record After a Hearing Before Final Award
Weibrecht v. Treasurer of
Missouri as Custodian of Second Injury Fund, Case No. ED109591 (Mo.
App. 2021)
FACTS: The claimant
sustained an injury to his low back on July 19, 2016. He had previous injuries
to his low back in 2005 and 2009 as well as an injury to his right shoulder in
2014. He settled his claim against the employer and in December of 2017 he
filed a claim against the Fund for PTD benefits or in the alternative PPD
benefits. He asserted in his Claim that the Fund was liable under §287.220.2.
This was due to the fact that per Gattenby all of his injuries, both
priors and the primary had to have occurred after 2014 in order for §287.220.3
to apply which limits the Fund’s liability. A hearing was held on May 29, 2019
and the record was closed and proposed Awards were to be filed in 30 days.
Before the ALJ issued her Award,
on June 25, 2019 The Supreme Court handed down Cosby which abrogated Gattenby
with respect to what “injury” had to take place after January 1, 2014 in order
for §287.220.3 to apply. The claimant filed a motion
to reopen the record for a supplemental hearing asserting that Cosby
changed the law and that since some of his injuries occurred after January 1,
2014 his claim was governed by §287.220.3. He alleged that he had only prepared
evidence for a hearing that related to Gattenby. The Fund agreed that
the ALJ has that authority but noted that reopening the record was not
appropriate due to the facts of the case. The ALJ denied the claimant’s motions
to reopen the record. The ALJ issued an Award in August of 2019 denying
compensation. The claimant appealed and the Commission affirmed and adopted the
ALJ’s final Award with supplemental opinion.
HOLDING: The
claimant appealed and argued that the ALJ erred when it denied post-hearing
motions on the ground that she had no statutory authority to reopen the record
and the Commission erred in affirming these rulings for the same reason. The
Court agreed and required remand to allow the ALJ to rule on the merits of the
claimant’s request.
The Court found that the power to
reopen a closed record after hearing and take additional evidence at a subsequent
hearing before the ALJ has entered an Award is not conferred by statute however
the regulations implicitly authorize the ALJ to do so. The Court concluded that
the ALJ had the authority to grant the claimant’s request and therefore the
Commission acted beyond its powers when it affirmed the denial of those
requests on the ground that the ALJ lacked authority to do so.
The claimant argued that Gattenby
was the controlling law at the time under which §287.220.2 applied to his
claims and §287.220.3 evidence was irrelevant. He noted that when Cosby
abrogated Gattenby that provided “good cause” for him to request the
record be reopened. The Court agreed. However, the Court noted that there must
be a decision as to whether the particular evidence offered by the claimant
actually pertains to the requirements of §287.220.3 and whether that evidence
is necessary for a full and complete record. Therefore, the case was remanded
to the Commission with directions to remand the case to the ALJ to determine
whether the evidence offered by the claimant in his post-hearing motion was
relevant and necessary and if so the ALJ was to make a more complete Finding of
Facts based on that evidence.
