Sunday, August 5, 2018

Mo Commission issues noteworthy 2018 decisions for emotional support, off-duty exercise and PTSD from parking lot bumps   

I have briefly summarized some of the more unusual cases from the Commission since January 2018.  The new Commissioner appointed in May has issued several dissents. 


Brown v. Superior Linen, 2018 MO WCLR LEXIS --   - escape from work

Cheney  v City of Gladstone, 2018 MO WCLR LEXIS 193 - noxious exposure (carcinogen)

Cooper V Mid MO Mental Health, 2018 MO WCLR LEXIS 19  – hypersensitive pneuomonitis 


Houchen v Trimmasters, 2018 MO WCLR LEXIS 9 – eye injury from neurontin

Pineda v EFCO Corp., 2018 MO WCLR LEXIS 201– opposite shoulder from over use

Reiter v KC Police Dept., 2018 MO WCLR LEXIS – (April 12, 2018) – off duty exercise found compensable

Reynolds v MO Hwy Dept and Transportation – 2018 MO WCLR LEXIS 203– twisting at work



Chudnovtsev v.  BSI Contractors, 2018 MO WCLR LEXIS  – (March 30, 2018) failure to show cancellation


Claxton v Waterloo Industries, 2018 MO WCLR LEXIS 24 – reduces PTD award due to inconsistencies

Houchen v Trimmasters, 2018 MO WCLR LEXIS 9 – exaggeration did not negate finding of credibility

Farris v ADS Waste Holding, 2018 MO WCLR LEXIS --  (March 7, 2018)– P unable to explain inconsistencies, modifies PTD to PPD award


Reiter v Kansas City Police Dept, 2018, MOWCLR LEXIS --   waiver of coverage is not binding 


Blair v Ryerson , 2018 MO WCLR LEXIS 217 – failure to prove injury by accident. Employer disputed accident but judge found evidence to support an accident. Surgical findings inconsistent with claim. 

Crawford v Archway Bldg Maintenance, 2018 MO WCLR Lexis 214 (July 19 2018) - rejects hardship benefits for surgery when need for surgery more likely related to accident 3 weeks earlier.  the employer had paid nearly $20,000 in medical benefits for a minor car accident.   


Farmer v City of Hayti Heights, 2018 MO WCLR LEXIS – (July 19, 2018) – denial long hours

Fronek v Production Delivery Systems, 2018 MO WCLR LEXIS 196 –  truck accident mental and physical

Reynolds v Wilcox Truck Lines, 2018 MO WCLR LEXIS 202 –  parking lot crash


Barnett v Harley Davidson – 2018 MO WCLR LEXIS 189 Lack of history of OD etiology not persuasive


Carty v SE Mo Mental Hospital, – 2018 MO WCLR LEXIS ,  L2 burst fracture superimposed on prior back condition

Cooper v Mid MO Mental Health, 2018 MO WCLR LEXIS 19 – 50-year old with hypersensitive pneumonitis

Duarte  v Butterball  2018 MO WCLR LEXIS 188-  2 surgeries from repetitive trauma (76 yo)

Hardwick v Conagra Foods - 2018 MO WCLR LEXIS 10 – metatarsal, knee and back

Moss v Dept of Corrections – 2018 MO WCLR LEXIS 4 – can infer PTD  from evidence

Odom v Customer Engineering Services,  – 2018 MOWCLR LEXIS 209 -CRPS with opiate dependence


Penning v Harley Davidson, 2018 MO WCLR LEXIS 28 , no error not to plead specific diagnosis

Naeter v R.C. Lone Star, 2018 MO WCLR LEXIS 208 – untimely SIF claim

Rodas v the Carter Group, 2018 MO WCLR LEXIS 21 – waives right to cross examine expert


Reynolds v Wilcox Truck Lines, 2018 MO WCLR LEXIS 202 (July 3, 2018)  (nursing benefits for emotional support) 


Marquess v Fischer Concrete Services, 2018 MO WCLR LEXIS 207 – failure to show employer adopted policy to support massive penalty


Barnett v Harley Davidson, 2018 MO WCLR LEXIS 189 – failure to preserve issue


Jackson County Mo v Marc Earnest, 2018 MO App. Lexis 162 – acting inconsistent with testimony was not compelling proof that claimant was employable in open labor market

Page V OCCI, 2018 MO WCLR LEXIS 13, 14 - rejects PTD claim in part due to video evidence, but awards 70% of ankle and 35% of knee 

The Perilous
 of Appeals

The Missouri Labor and Industrial Commission in 2018 issued several important decisions providing guidance to parties who want to appeal decisions of an administrative law judge.

The rules to appeal are set forth in the Code of State Regulations.

8 CSR 20-3.030 Review of Awards or Orders Issued by Administrative Law Judges

(4)(C) The brief of the party requesting the application for review shall contain a fair and concise statement of facts without argument. The respondent may supplement the statement of facts if necessary.  No jurisdictional statement is necessary unless jurisdiction is at issue. (Parties are advised that recitations of basic legal principles of workers compensation law are not necessary and are discouraged.  The commission is aware of principles such as that the burden of proof is on the employee, the law is to be liberally interpreted in favor of the employee, and that the commission may make its own determination of the facts, and credibility of the witnesses including experts.) The briefs shall identify the issues in dispute and address those issues only.  The briefs should state concisely the factual or legal support for the party’s positions.  Lengthy recitation of facts or cases without identifying how they relate to the party’s position will not be considered. Briefs of all parties should clearly outline and explain the issues in dispute and contain a conclusion in detail as to the decision, award or action requested from the Labor and Industrial Relations Commission.  (emphasis added)

Section 287.800 provides:                                   

1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

2. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.  (emphasis added)

The court of appeals has affirmed dismissals to the Commission that fail to comply with the specific rules. Smith v. Smiley Container Corp., 997 S.W.2d 126, 128 (Mo. App. 1999), Wilkey v. Ozark Care Ctr. Partners, L.L. C., 236 S.W.3d 101, 102 (Mo. App. 2007).

Despite 287.800 to “construe the provisions” strictly, the Commission has allowed multiple recent cases to proceed on the merits when the parties may not follow the basic tenets of the regulations to identify the reason for the legal fight, the admonition against being a chatty Cathy, and to fight fair and not argue during the statement of facts on the rationale that appeals are remedial in nature and should be “construed liberally in favor of allowing appeals to proceed.” 

Identify the issues in dispute

The Commission noted the parties did not identify on the record. The parties asked the ALJ to address “at least” two statutory tests, the award did not address either, and addressed a third issue that was not expressed at trial.  On the appeal the parties did not ask the Commission to address whether the party sustained an accident, or an injury arising out of employment but the general issue of medical causation which was not addressed at hearing.

Farris v ADS Waste Holding, 2018 MO WCLR LEXIS 17 (ALJ Fowler)

The Commission  noted the parties disputed causation when the issue was not raised as a dispute.  The Commission noted the parties incorrectly argued whether the claimant had an “accident” arising out of in the course of the employment when the correct standard was whether an “injury” arose of out employment.  The Commission further noted the phrase “scope” was not defined the statute.  

Hood v City of Kansas City, 2018 MO WCLR Lexis 1 (ALJ Rebman)

Identify the error

A 2-1 majority allowed an appeal to proceed for partial disability for exposure to fumes and dust despite a failure to identify the findings supported by the evidence.  Counsel in the case had surrendered his license.

Judd v DaimlerChrysler, 2018 MO WCLR LEXIS 198  (Jun 20, 2018) (ALJ  Kohner)

Don’t Argue

The Commission allowed an appeal to proceed despite violations of the rule against presenting argument in the statement of facts. 

Barnett v Harley Davidson, 2018 MO WCLR Lexis 189

Other issues

The Commission in a 2-1 decision dismissed an appeal based on a sua sponte review for lack of jurisdiction whether an uninsured employer had enough employees to be subject to the Act. The uninsured employer did not file any responsive pleadings or participate.  The case had been previously remanded by the Commission to develop additional evidence.  Claimant failed to establish that her employer had enough employees to be covered by the Act.  

Mealer v Russ Jackson Transportation, 2018 MO WCLR LEXIS ___ (Aug 1, 2018) (ALJ Carlisle)

The Commission in a 2-1 decision found an application of review in which the party appeared to appeal multiple cases only identified the injury number of one award on the application.  “We lack jurisdiction to address the issue… in the context of separate awards not reference sin the employee’s application for review.”  The dissent found the attorney substantially complied with he rules and should not lose a right to appeal due to technical formalities.

Mealer v Russ Jackson Transportation, 2018 MO WCLR LEXIS ___ (Aug 1, 2018) (ALJ Carlisle).

Saturday, August 4, 2018

New Noteworthy Decisions from the Commission


Defense Decisions

Injury by accident.

Claimant  alleges his shoulder hurt and became stiff after he pulled a chain but he failed to prove injury by accident .  Claimant’s surgeon opined claimant had no apparent tear when the tendon was visualized during surgery. Claimant’s expert assumed a new tear had occurred.  See Gordon v City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008). (The surgeon identified no evidence at the time of the shoulder surgery of a new tear).  The Commission disavowed the conclusion by the ALJ that more experience or education of an expert made an expert more persuasive.  

Blair v Ryerson, 2018 MO WCLR LEXIS 217 July 27, 2018 (ALJ Hefner).


Claimant alleges her knee hurt when she kicked her leg at work but failed to prove an injury by accident from an identifiable risk source.   Claimant alleges she kicked out her leg and experienced a pop while getting on a step 18 inches off the ground.  The ALJ noted claimant failed to identify any defect of the step

McFederies v General Cable Corp. 2018 MO WCLR LEXIS 206 (ALJ Fischer)

(compare Wilkins v Piramal Glass, 2018 MO App. Lexis 211 (March 6, 2018) (arising from a squat in an awkward position was deemed compensable)

Injury by occupational disease

The commission modified an award of Permanent Total to permanent partial in which claimant asserts he injured his neck, back and hip from hitting a bump and from riding on bumpy roads in 2014 when he was thrown up in his seat.  The commission noted years of chiropractic treatment leading up to the alleged accident that mirror symptoms claimant attributes to hitting a bump, inconsistencies in the extent of subsequent symptoms and social media accounts.  The Commission criticized the attorney for misidentifying the issues in dispute and to address an issue on appeal that was not expressly identified as an issue of causation that was not specifically identified at trial.

Farris v ADS Waste Holding, 2018 MO WCLR LEXIS 17 (March 7, 2018) (ALJ Fowler)


The commission affirmed a denial of benefits in a claim that exposure to heavy metals caused progressive cognitive and neurologic symptoms. The widow sought more than $300,00 in medical bills for medical services. The plaintiff relied upon hair samples 4 years later which suggested elevated levels of arsenic, antimony and titanium.  The defense expert indicated claimant’s medical symptoms were better explained by encephalitis.  No autopsy was performed.  The 32-page opinion discusses when OSHA considers “safe” levels of exposure. 

Whelehon, Dec. v Doe Run, 2018 MO WCLR LEXIS 7 (Jan 18, 2018)(Kasten)


The Commission reduced an award for a lumbar strain from 35% PPD to 15% PPD in which claimant alleged injuries to the back and hip and claimed a hip surgery flowed from the accident.  The ALJ noted multiple inconsistencies in the testimony and the records. The Commission suggests inconsistencies in memory may arise because claimant had neurocognitive deficits from a brain surgery. 

Claxton v Waterloo Indus., 2018 MO WCLR LEXIS 24 (April 18, 2018) (ALJ Anderson)

Compare Thompson v Second Injury Fund, ED 105352 (Feb. 20, 2018) (claimant deemed more credible about risk source than the inconsistent history and lack of documented history of wet surface in multiple records)


The Commission affirmed a denial of benefits to a pro se truck driver who claims a battery leak exposed him to fumes of sulfuric acid which he claims injured his lungs (COPD), stomach and body.  Claimant failed to produce expert opinion to support his argument.  The employer identified no defect.  Claimant had a 35-year history as a smoker.

Davenport v LTI Trucking Services, 2018 MO WCLR LEXIS 215 (July 19, 2018) (ALJ Kohner)

Death Benefits

The Commission in a 2-1  decision denied an award of death benefits and future medical in in a case in which claimant fell, he was rendered paraplegic, and later died from an MI.  Dr. Azan testified claimant had various risk factors and the cause of his cardiogenic shock was unclear. 

The Commission found insufficient evidence that the employer adopted a safety rule of “use the gantry” to apply a safety penalty against benefits.  Claimant concedes he did not follow the rules of the customer’s property.  The medical costs approached 11 million dollars.   A dissent would have invoked a 50% penalty.

Claimant failed to present evidence to support an award of nursing services from his spouse. 

Marquess v Fischer Concrete Services, 2018 MO WCLE LEXIS 207 (June 14, 2018) (ALJ Dierkes)



The Commission in a sua sponte review found no subject matter jurisdiction to support claimant’s demand for benefits when the uninsured employer did not file any responsive pleadings or participate.  The case had been previously remanded by the Commission to develop additional evidence.  Claimant failed to establish that her employer had enough employees to be covered by the Act.  Claimant stated that the supervisor reported that the employer did not obtain insurance because it did not have 5 employees.  The dissent noted that the employer was in default on the issue of employment and the Commission did not have jurisdiction to address the issue of jurisdiction.

Mealer v Russ Jackson Transportation, 2018 MO WCLR LEXIS ___ (Aug 1, 2018) (ALJ Carlisle)

Plaintiff decisions

Injury by accident

The Commission affirmed an award for benefits and past medical bills of more than $240,000 despite a court -appointed orthopedic surgeon who indicated surgery was not caused by an accident.  The judge appointed an expert when two surgeons disagreed whether claimant needed more treatment because of the alleged accident. The employer relied upon an expert appointed by the ALJ that discogenic pain was more likely caused by degenerative disc disease with findings of calcified discs and no positive sensory or motor problems.  The ALJ noted the surgeon who billed for the services “observed” the discs at the time of surgery.  The commission noted that a court-appointed expert was not given more deference as a “tie breaker” based on the statutory language that allowed an appointment and the commission found no admissible evidence that the parties both agreed to be bound by the conclusions of the tie-breaker.  A letter which addressed the issue was excluded from evidence. In addition to the Commission affirming an award of more than $240,000, the Commission  adds another 90 cents due to a computational error. 

Crafton v UPS Freight, 2018 MO WCLR LEXIS ___ 

May 2, 2018                                        (ALJ Carlisle)


The Commission reverses a denial of benefits for a claimant bending over to change a hospital mattress and awards total disability against the second injury fund.  The commission concluded the accident aggravated prior spinal and psychiatric issues and awarded more than $109,000 in past medical bills. 

Kalajdzic v St. Louis Children’s Hospital, 2018 MO WCLR LEXIS  12  (ALJ Landolt)

Injury by occupational disease.

The Commission reversed a denial of benefits and concluded toxic exposure as a firefighter represented an increased risk to cause follicular NHL.  The employee relied in part on expert opinion and a NIOSH study that suggested a higher incident rate of NHL among firefighters.   The Commission concluded claimant established a recognized link to contract the disease and some distinctive features of the job   increased risk to contract the disease.  Claimant’s treating oncologist and an expert oncologist and hematologist indicated the research did not recognize a known risk between the disease and its cause.  The ALJ considered that statistical correlation between occupation of firefighter and cancer did not satisfy the burden of causation as obesity was also correlated strongly with cancer.  Claimant was obese.   

The case was decided under occupational disease and not the “firefighter” rule of §287.067.  The Commission noted it was unclear if the specific disease (follicular NHL) could be considered a “carcinoma” to fall within the specific terms of the statute.    

Cheney, dec. v City of Gladstone, 2018 MO WCLR LEXIS 193, June 15, 2018 (ALJ Siedlik)


The Commission affirmed an award of permanent and total disability to a 50-year old state employee who worked as a janitor and claimed exposure to “white powder” while working around an asbestos abatement work site for about 3 months.   The employer denied liability from the onset and defended the case on expert opinion that claimant’s condition likely arose from non-occupational sarcoidosis.  The Commission awarded PTD, open medical, past bills of $232,627 and a 15% penalty for exposure without adequate safety protection.  The Commission reversed the award for safety penalty and found that claimant did not prove all elements of the safety statute of §292.300 that there were approved and effective devices, means or methods for the prevention of such industrial or occasional diseases or evidence of the failure to provide such devices to injured employee.    Claimant originally reported an eye problem and developed a variety of medical conditions secondary to the use of prednisone, including the ultimate need for a total hip replacement.  ALJ Dierkes provides an excellent summary of related cases in the 35-page opinion

Cooper v Mid Mo Mental Health, 2018 MO WCLR LEXIS 19, Feb. 23, 2018 (ALJ Dierkes)


The Commission modified a denial of benefits in a death case that alleged immobilization for treatment of an undisputed ankle fracture caused a fatal pulmonary embolism about 45 days later.  The commission noted the absence of research supporting the onset of PE in similar circumstances, nor the absence of an autopsy, precluded an award. 

Knutter v American Natl Ins., 2018 MO WCLR Lexis 199 (July 10 2018)  (ALJ Fischer)


The Commission affirms an award of total disability for a shoulder injury of a 59-year old who did not speak English in which claimant alleges he developed symptoms a year later in is opposite shoulder form over use.  The Commission refused an award of costs when the employer contends claimant had 2 accidents instead of one when plaintiff’s counsel filed the second claim to preserve a possible second claim as a strategic choice. 

Pineda v EFCO Corp. 2018 MO WCLR Lexis 201 (June 21, 2018) (ALJ Fischer).

Medical Benefits

The Commission awarded medical benefits as a result of a spouse providing emotional support as part of home nursing medical services.  Claimant reports PTSD and depressive symptoms from a rollover accident which pinned him under a truck.  The award concluded the wife provided services beyond spousal duties and awarded past benefits of $208,896.  The Commission criticizes the ALJ for excessive recitation of facts in a 136-page opinion.  A dissent would have denied the award for “ordinary” spousal support. 

Reynolds v Wilcox Truck Lines, 2018 MO WCLR Lexis 202 (July 2018) (ALJ Miner)

compare Marquess (noting a failure of proof of nursing care). 

The Commission allowed re-activation of a claim for future medical including a total knee replacement after two surgeries prior to the settlement.
Pierce v Bedrock ,

Mental Injuries

The Commission affirms an award of permanent and total disability to a 63-year old who was hit in a parking lot by the rear bumper of a car of a person backing up and alleged he developed post-concussive syndrome, sciatica and unusual behavior.  The experts disputed whether he had PTSD or major depressive disorder.   Claimant was loading a truck at the time in Ohio for a tour of Celtic Women.

Fronek v Production Delivery Services, 201 MO WCLR LEXIS 196, July 10, 2018(ALJ Boresi)

Compare  Farmer v City of Hayti Heights, 2018 MO WCLR Lexis __ (July 19, 2018)  (Tilley)

(Claimant failed to show “stress” from working long hours as a police officer.  The ALJ noted a prior conviction for making false statements and an invalid MMPI.  The employer had settled the case.) 

Wednesday, July 11, 2018

Commission in split decision reverses denial of nursing benefits to spouse for emotional support

Ronald Reynolds v Wilcox Truck Line
July 3, 2018  DOLIR

Claimant sustained an accident in 2007 and alleges post traumatic stress disorder and depression and claims he remains PTD and unable to work in the open labor market.

The ALJ  awards total disability, past TTD of more than $153,000 and denies payment for  nursing services for his spouse. 

The commission modified the award.  It noted the 136 page decision by the ALJ summarized the findings without highlighting the operative facts.  The 2-1 Commission relies upon the causation opinion of Dr. Stanley Butts.  The commission found the defense expert did not demonstrate the symptoms were more likely from dementia or other non-occupational causes.  Claimant also offered vocational evidence that claimant was unemployable.

 Claimant offered an opinion from a life care planner that he required nursing care up to 20 hours a day.  The employer did not appeal the finding that claimant required future medical care.  Claimant argues that he needs someone to manage his medication, doctors appointments, transportation and avoid going into crisis.  Claimant is able to perform many activities of daily living, unlike parties injured with debilitating injuries in other cases.  The Commission found an absence of proof of the ordinary activities of a spouse.  The Commission rejected expert testimony that claimant required round the clock monitoring because symptoms waxed and waned but derived the finding that claimant required 48 hours a week (the basis of this calculation is not documented).   The commission awards $208,896 in past benefits at $16.00 an hour.

The Commission noted it retained jurisdiction to resolve disputes about ongoing obligations if claimant's situation changes and he requires more frequent care.

Clamant sustained additional physical injuries which required debridement.  He is a 62 year old veteran who was hauling mail at the time. 

A dissent noted claimant's fear of driving a truck after his accident did not render him totally disabled.  The dissent notes claimant was trapped after the accident but he was able to work until he witnessed another accident.  The dissent notes statements to a treating psychologist that claimant was able to resume activities working on a farm 12 hours a day. 

Dr. Halfaker rated claimant with a 10% disability. 

 ALJ  Miner
Atty: Powell, Lanham

Friday, June 29, 2018

de minimus standard in premsies liablity illinois

Defendant asserts no liability based on de minimus doctrine that there was no duty to repair or make perform the condition when a reasonable person would not consider minor changes as a defect likely to cause injury.  No specific math formula was set but the cases point to 2 inches or less. They do not addres issue when it is not just the height variant but wear and tear that contributed to the accident.

Barrett v. FA Group, LLC, 2017 IL App (1st) 170168

de mninimus doctrine. 

Thursday, June 28, 2018

Commisison awards widow benefits

Claimant alleges in 2008  an occupational exposure for 19 years  as a firefighter to smoke, gas, heat, oxygen, resulting in non-Hodgkin's lymphoma.  He could not identify a specific incidents or other workers with similar medical conditions.

The employer disputed the claim and paid no benefits.  A witness testified to exposure to diesel fumes in the living areas of the fire station.  Exposures including car and dumpster fires. 

The treating oncologist was unable to relate claimant's medical condition to his employment.  The employee relied upon the opinion of Dr. Koprivica, who has a specialty in emergency medicine. The employer relied upon the opinion of Dr. Shaw, a triple certified expert, who found no relationship between claimant's type of medical condition and exposure as a firefighter, and noted the type of lymphoma was not a respiratory or cardiac condition.  He stated that obesity was a contributing factor but there was no known cause of the medical condition.

The ALJ found the condition did not fall within the easier burden of proof for firefighters because the condition was not a delineated condition under 287.067.6 because it was a lympathic condition.  The ALJ found that claimant's expert relied upon statistical correlation did not meet the burden of proof to show causation, that me relied upon out-dated meta-analysis, and that Dr. Koprivica was not a credible or persuasive witness in this case, and the defense experts were more qualified. 

The Commission reversed.

It found Dr. Lockey's opinion persuasive that claimant's work as a firefighter had an elevated risk for for his NHL, due to exposure to cardinogenic substances.  The court noted Dr. Shaw did not review
Dr. Lockey's journal article. 

The Commission found a recognized increased risk as compared to the general public between the disease and some distinctive feature of employment and found the additional risks doe snot negative the impact of increased risk factor. 

The Commission declined to apply the firefighter presumption, but noted legislative intent was unclear on the scope of the provision.  Cheney v City of Gladstone, 2018 MO WCLR LEXIS  (June 15, 2018) 2-0 Vote


Filing of amended claim to add SIF as a party did not toll Statute of limitations

The commission affirms a denial of benefits against the SIF without a separate opinion based on the statute of limitations.

 Claimant was an employee from 1984-2005 and alleged hearing loss. 

The ALJ found the claim against the second injury fund was not timely and amending the original claim to only add the second injury fund as a party did not toll the time to add the second injury fund.   Naeter v RC Lone Star (SIF only), DOLIR 6-15-2018  (3-0).

ALJ  Kasten
Atty:  Weiss, Rhoades