Wednesday, August 12, 2020

Commission affirms PTD for back fusion

 Gary Fuwell v Mo Dept. of Corrections

Release Date:  Aug 10, 2020 (Accident date Nov. 21, 2013)

Venue:  Texas County

Plot Summary:  The Commission affirms a PTD award against the employer for a back injury and single level fusion caused by a fall down some steps in a prison.


Mahon, J

Spear, atty

Harris, atty

Rhoades, atty

Robson - 15%






Comments:  Claimant, 62, received a temporary award including a back fusion and is awarded PTD in a final award.   Dr. Volarich concluded he was "last accident alone" despite prior neck surgery and prior back disability and "may" need treatment in the future due to hardware, and had to "rest" as needed.  Vocational opinion indicated claimant's use of narcotics and lack of employment for 3 years were toxic to his ability to compete for work.  Hughes felt he was unemployable due to "appearance" and "pace and performance" but not due to last accident alone.

ALJ Mahon found claimant was "compelling" in his testimony about the result of "violently" falling down some stairs, and followed Dr. Volarich's conclusion of "last accident alone" despite "significant" pre-existing disabilities which caused him to miss "a few weeks" each year.   She notes claimant takes daily trazadone and likely developed severe adjacent level stenosis from "stress."  

What's it Worth?  


Friday, August 7, 2020

Commission faces off with court of appeals on narrow reading of SIF statute

 Jody Sneed v Walmart  (sif only)

Release date:  Aug 4, 2020 (Accident date Jan 2017)

Venue:  Greene County

Plot Summary:   A majority of the commission reverses an award of total benefits against the Second Injury Fund based on its own interpretation of 287.220, which it admits is at odds with the court of appeals.


Elmer, ALJ, 




The majority concludes the SIF statute which refers to pre-existing "injury" includes only injury by accident and not injury by occupational disease, and the consideration of prior injuries from repetitive trauma were improper.  The majority felt it was reversible to consider pre-existing conditions that did not meet the 50 week threshold, even though the threshold had been satisfied by other qualifying condition.  The majority includes PTD must be established with "a" single prior condition and not multiple prior qualifying conditions.

Claimant's primary injury involved a 20% settlement and she sought benefits for prior hip replacements and prior degenerative disc disease.  

"We acknowledge that a majority of the Missouri Court of Appeals, Western District, recently filed an opinion, not yet final, that is at odds with our interpretation of § 287.220.3(2)(a)b. See Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan ParkerWD83030 (July 14, 2020). One member of the three judge division that decided the case challenged the majority's interpretation in a strongly written dissenting opinion. For the reasons stated above, we fundamentally disagree with the Western District majority's recent interpretation of§ 287.220.3(2)(a)b. We instead find that the express language of§ 287.220.3(2)(a)b requires that an employee prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test."

It is not clear why the majority would pivot on the issue that the court of appeals decision wasn't final as a basis to bypass the concept of stare decisis.

Friday, July 31, 2020

Appeal Dismissed for Failure to Identify Judicial Error

Shelly Dale v Washington University 

Release Date:  July 29, 2020  (December 2009)

Venue:  St. Louis  

Plot Summary:  Commission dismisses an appeal for failure to identify error of an award in which the ALJ denied benefits on a failure too prove causation based on admissible evidence. 

Boresi, ALJ

Comments:   The ALJ denied claimant's attempts to offer a report that was "just found" or continue the case, noting further delay was prejudicial to the defense after more than 2 dozen prior court settings for a case that remained unresolved more than a decade after the accident 

Wednesday, July 29, 2020

"Last Accident alone" PTD for PTSD reversed

City of Jennings v Sabrina Williams

Release Date:  July 28, 2020  (Accident Date Sept. 2010)

Venue:  Eastern District (Div 4)

Plot Summary:  Claimant alleged permanent total disability after she was assaulted in a "bloody beating" by an inmate for several minutes  resulting in physical injuries  and new PTSD with  "worsening" of psychiatric conditions of anxiety and depression.

Ransom, ALJ
Moreland, M
McHugh, P
Hudson, J


Dr. Brockman testified the accident was the prevailing factor in new conditions and aggravations of prior medical conditions.   Dr. Bassett testified claimant had "new" and "old" disability of which 75% was new. The ALJ found claimant's "new" PTSD and new panic disorder alone supported liability against the employer and the accident was "so traumatic" that it supplanted her condition prior to the attack.   The Commission affirm a last accident alone PTD in a 2-1 decision.

The Court found the commission's decision was not supported by competent evidence that the  last accident was "so traumatic" to be a total and substituted the opinion of experts in a complex issue which found any total due to a combination.

The Court noted the Commission failed to complete its analysis to consider Fund liability when its conclusion of  "last accident alone" was not supported by sufficient competent evidence.  The "personal views" of the judge cannot provide sufficient basis to decide causation when there is expert testimony and the ALJ fails to account for the relevant medical testimony and the evidence is neither contradicted or impeached.  The ALJ found  "claimant was disabled due solely to he work injury" contrary to the undisputed testimony of both experts. The ALJ found the doctor to be credible although the doctor's opinion indicated a combination of psychiatric conditions new and old. .

The "horrific" nature of the accident did not permit the Commission to disregard the undisputed medical testimony without explanation nor base its finding on its personal opinion unsupported by sufficient evidence.

The employer argued the commission misapplied the law to rely upon a "she was working" defense to fund liability rather than an analysis of the condition constituted a hindrance or obstacle that could combine with a later work injury to cause a greater degree of disability than would have resulted without the pre-existing condition.  The court found it was error for the Commission not to have applied that standard, and its decision was  inconsistent with the Fund purpose "to ensure employers are not held solely responsible for a previously disabled employee's total permanent disability where a potion of that disability can be attributed to a pre-existing disability."

The court finds a PTD combo and remands for the Commission to determine the "proper amount" of the Fund's liability.   


Tuesday, July 28, 2020

Total affirmed for cuff repair

James Shields v Lowe's Home Center Inc

Release Date:  July 24, 2020 (Accident date Dec. 23, 2015)

Venue:  Cole County

Plot Summary:  Commission affirms a PTD award for right shoulder for 72 year old claimant following surgery for cuff repair with ongoing symptoms and onerous work restrictions from claimant's medical expert, Dr. Volarich.

Fisher, ALJ
Volarich - 65% total


A dissent found evidence that claimant's PTD arose from the last accident alone was not credible given claimant's work capacity limited him to "greeter" work prior to the accident due to prior medical conditions due to a herniated disc and prior shrapnel injuries.

Thursday, July 23, 2020

SIF total for prior radiculopathy

David King v Sheraton Clayton Plaza

Release Date:  July 23, 2020  (Accident date:  Aug. 2013)

Venue:  St. Louis

Plot Summary:  Commission affirms PTD claim against Fund based on a back on back.

Denigan, ALJ
Keefe, D

Comments:  Dr. Volarich concluded claimant was PPD and then concluded he was PTD based on a back injury causing "increased radiculopathy" and also rated a prior back condition at 20% treated by a chiropractor.    The SIF offered no medical expert.   "Given Ms. Gonzalez testimony and findings, it is difficult to understand why Dr. Volarich changed his opinion. Her assessment contained serious flaws as stated above. Mr. Hughes rebutted much of Ms. Gonzalez's testimony. Nevertheless, the medical evidence suggests Claimant is permanently and totally disabled."  Claimant never had surgery apparently related to a risk from smoking and prior MRSA.

The ALJ denied the offer of claimant's deposition. "Convention in practice consists of simply identifying the pages from a properly indexed transcript and giving the opposition an opportunity to respond."

It denied the SIF objection to records as IME rather than primarily treating records even though the records are self-described by the doctor as an IME. 

The ALJ characterized claimant's testimony as unreliable and "much of which was unnecessary given the unchallenged treatment record and un-rebutted expert medical testimony."

Case Value

30% PPD - unoperated back 
Fund- PTD

Wednesday, July 22, 2020

Worsening after MMI does not support Fund Total

Michael Butler v Rock Hill Mechanical Corporation (Amerisure)

Release Date:  7-21-2020

Venue:  St. Louis, MO

Plot Summary:

Claimant, 54,  sought PTD benefits alternately against the employer or the Fund.  The ALJ found claimant to be a fund total based on  August 10, 2009 work injury to his left shoulder and low back, and his pre-existing disability to his right shoulder and left SI joint dysfunction.

The Commission reversed and found no PTD  at the time of MMI.  claimant could not return to his work as a pipefitter after his primary injury but that he was rendered totally disabled after MMI because of worsening of his condition from a lumbar and SI fusion  related to a pre-existing condition.


The ALJ found claimant failed to show the accident caused the need the back surgery.   The employer relied upon expert opinion that claimant sustained a strain, that the surgery was not necessary because the work injury, and the surgery was not reasonable based in imaging and EMG studies which were "normal."  The Commission found Dr. Volarich not persuasive that the accident caused the need for surgery given the absence of new findings, documentation of prior symptoms, and the more credible opinion of a spine surgeon, Dr.  Coyle  The ALJ noted:  "Finally, Dr. Coyle concluded the low back treatment Claimant received after October 14, 2009 was related to his pre-existing SI joint dysfunction, not disc herniations. He noted the chiropractic treatment Claimant received up to and including August 10, 2009, and beyond. For these reasons, Claimant did not meet his burden to prove the medical treatment he received for his low back after October 14, 2009 was medically, causally related to his August 10, 2009 work accident."

Carlisle, ALJ
Keefe, atty
Taylor (2 level fusion)
Jackman (SI surgery)