Monday, October 8, 2018

Commission finds PTD against SIF with no permanent restrictions from prior surgeons

Simmons v Mercy Hospital
Inj No. 12-001723
DOLIR 10-4-2018


The Commission affirms a 2-1 PTD award against the second injury fund for a primary shoulder injury combined with two prior knee disabilities which previously limited the claimant to sedentary work.

A 64 year old office worker slipped and fell on a laminated floor in 2012.  She underwent two shoulder surgeries including ORIF for a humerus fracture.  She declined a third surgery to repair a cuff tear because of a "low probability" of success.  She was awarded social security disability benefits on the basis of the medical records related to the shoulder.  The ALJ awarded 45% PPD, which match the settlement with the employer. 

Her expert concluded she had pre-existing disability of 30% of each knee related to prior internal derangement that required surgeries.  Her disability from 2 to 3 extremities demonstrated a synergistic effect. 

The second injury fund relied upon  vocational expert who performed a records review and found no disability based on medical opinion imposing no prior permanent restrictions.  The Fund offered no other ratings.

The ALJ noted the complaints were "legitimate" and reflected a desire to maintain employment for "financial and social reasons."   The absence of prior restrictions did not preclude an award of SIF total benefits as it did not credit other medical evidence or claimant's own testimony about self-imposed limitations.   Claimant testified she did not plan to retire until 65. 

A dissenting commissioner would have modified the ALJ award from PTD to PPD against the Fund and found the medical records which did not show restrictions more persuasive than claimant's testimony about her limitations.

The employer settled the case before a final hearing.  The employer had lost a previous temporary award in 2012 when it contested the compensability of the claim. 



ALJ Boresi
Atty:  Wagner, Hudson
Experts:  Musich, Gonzales, Hughes

Wednesday, August 29, 2018

Award for fall in employer owned parking garage

McDowell v St. Lukes Hospital of Kansas City
DOLIR 8-22-2018                              Fowler
Atty:  Coopae, Stretz

The commission in a 2-1 decision affirms an award of benefits when a 68 year old scientist  caught a two wheel cart on the employer's doorway and fell and was awarded nearly $58,000 in benefits for a wrist fracture.

Claimant  alleges she fell on a employer owned parking garage and she could identify no defect or hazard with the property.  Claimant had prior bilateral hip problems, one hip replacement before the accident, and was a "fall" hazard.  She claims another employee obstructed her path and when she turned the cart she carried behind her caught on the door frame and she fell on her wrist. The employer denied the claim and she sought treatment on her own for a distal radius fracture. 

The employer asserted an idiopathic fall defense, but offered on no evidence of prior idiopathic falls but evidence that she was a fall hazard.  She made a statement "with her artificial hip" that she fell.   The employer further argued that the cart was a personal apparatus and that its role in the fall was a risk unconnected to her employment.

The ALJ found that because the cart contained work related items necessary for her job then it was not a purely personal item disconnected to employment risks.  She testified her supervisor suggested that she use the cart.    The commission relied upon Narens for the concept that exposure to walking in a congested area at the time of the accident was a unique occupational risk.  Narens involved both congestion and an uneven and broken surface. 

The ALJ noted that disfigurement was not raised as an issue nor was evidence introduced on that issue. 


Tuesday, August 28, 2018

Court equates notice of accident as notice of latent back "injury"

The court of appeals affirmed an award of benefits and rejected the employer's notice defense when Jones reported an accident but did not initially provided notice of a back injury 2 1/2 months later.  Harley-Davidson Motor Co. v Kenneth Jones, WD 81155 (Aug 22, 2018).

Jones alleges in 2011 he twisted his body when he was jerked while handling a pneumatic gun used to assemble motorcycle parts.  He was initially diagnosed with an elbow sprain and reported he aggravated prior medical conditions involving his arm and shoulder. Claimant states the next day he began to experience back pain and about 10 weeks later.  He went to an emergency room because his back pain became intolerable.  A doctor concluded the torque accident was the prevailing factor in pain despite prior spondylolisthesis.   Claimant sought treatment on his own when the employer refused to provide care for the back.  The commission awarded $39,205.64.

The employer denied any injuries to the BAW and asserted a notice defense because claimant did not provide notice of the address of the person injured as required by 287.420 or the nature of the injury as claimant did not report a "back" injury.  The court of appeals found that 287.420 requirement to provide notice of the "injury" does not require notice of the "injured' body part, but notice of a "work-related injury" and of an "accident."  The court distinguished the case from Soos v Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000). in which the employee provided no notice of an accident for 2 months which allowed no opportunity to investigate the circumstances of the case.   The court notes Harley-Davidson had knowledge of a work-related connection when the employer had actual knowledge of the accident and claimant advised the employer his back hurt after the doctor  told him the condition was work related.  The court notes the employer  took no further action to timely investigate the claim or to minimize any exacerbating of disability.

The employer argued the Commission did not make specific findings with an evidentiary basis by deferring to a finding that does not exist when it noted  the ALJ made implicit findings of credibility.  The court notes other portions of the award in which the ALJ expressly found claimant credible. 

Hon.  Gabbert.

Monday, August 27, 2018

No comp $ for combat volleyball game

Wilkerson v CMMG
DOLIR Aug 22, 2018   Dierkes


The parties disputed whether claimant sustained a compensable accident in 2013 or  provide notice. Claimant hurt his shoulder playing volleyball on company property during an unpaid lunch and indicated the activity was known and encouraged by his employers.

The ALJ denied benefits as a recreational activity based on 287.120.7.  Claimant offered no evidence that his actions fell within any of the three statutory exceptions.

The ALJ excluded a forensic report based on a  hearsay objection.

A concurring commissioner noted the exclusion from comp coverage did not bar any other potential civil remedies.


Atty: Montgomery,
Experts:  Russell, Cohen, Leonard

Commission strips pre-judgment interest on medical fee dispute

The Commission affirmed a default award for  the balance on a medical bill of a partially paid charge for an MRI, attorney's fees, and reversed an award for pre-judgment interest.

The claimant required an MRI.  The employer paid about 1/3 of the original charge of $3598.40 for an MRI.  The balance remained unpaid 811 days later at the time of the hearing.  The provider put forth its own evidence that it regarded its fees as reasonable.  The employer failed to appear at the hearing to defend the case. The balance was awarded.

The ALJ awarded an additional $750 in legal fees at $250 an hour and found the case was defended on unreasonable grounds when the defense did not appear.   Counsel indicated his own rate was reasonable.

The ALJ awarded an additional $480.60 in interest.

The Commission found no statutory basis to award prejudgment interest under 287.140 for medical fee disputes, although prejudgment interest could be awarded in other contexts. 

The employer contends its notice was deficient as the case was set in less than 30 days before its answer was due, and the division's notes indicated it would not be set for 8 weeks and then set in 24 days.   A 2-1 majority found that the employer had "due time to act" and basically waived any objections to the earlier setting based on the confusing nature of the notice provided by the Division.  One commissioner would have remanded the case to determine whether the employer had good cause for its failure to appear.

Goss v City of Crestwood Fire Department (SLAIT) , DOLR 8-16-2018
https://labor.mo.gov/sites/labor/files/decisions_wc/GossWendell14-101759081618.pdf

Commission affirms award for claimant's failure to prove covered employee

Claimant in 2011 crushed his finger in the course of an installation job for the employer's customers.  Claimant failed to prove he was an employee under section 287.020.1. The commission affirmed a denial of benefits but on different grounds.   Densmore v Barnes Industrial Group, Inj. No. 11-076364 (Aug 22, 2018)

The commission found claimant established a contact of hire at the time of the accident although he was still negotiating terms of his prospective full-time work for the employer.  The parties had agreed that claimant would perform work at $50 for an installation job.  The parties had not worked out other details such as paid vacation or supplying a cell phone.

The commission found claimant failed to establish all elements of a "right to control" test.  Claimant had the burden to show a right to control through  (1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right of discharge, (5) the method of payment (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the alleged employer, and (8) the employment contract. The commission noted  insufficient factual findings on facts 1, 2, 4, and 6 to carry claimant's burden of proof.  

A dissent argued that the employee established he was a person in the service of the employer and the employer had the evidentiary burden to show a lack of controllable service.  The dissent asserts strict construction  requires the employee's proof of "service" in 287.020.1 but did not require further require proof of "controllable" service under the right to control multi-part test relied upon by the majority.  

 Claimant  was paid a $20 higher hourly rate for bringing his own tools.  He did not complete any IRS paperwork for his employment.  He never signed a document about his job description.  The job was scheduled around his regular employment.   The ALJ noted the employer had no right to control the terms of claimant's job performance as his employer relied entirely upon claimant's expertise to perform the job.


ALJ  Baker
Atty Trefts, Banton
Treater:  Polenini

Friday, August 24, 2018

Cornejo named new commissioner

Robert Cornejo was appointed as the public member, and chair, of the Labor and Industrial Relations Commission (LIRC) in August 2018. 

His bio is listed as:

"A 2001 graduate of Hazelwood Central, Cornejo graduated from Washington University in St. Louis with a degree in Political Science with a second major in International Business. In 2008, Cornejo earned his J.D. from University of Missouri- School of Law.  Prior to his appointment to the LIRC, Cornejo represented the 64th District (St. Charles and Lincoln Counties) as a state representative, from 2012-2018.  He was previously a member of the Kespohl and Cornejo, LLC law firm.  In 2004, Cornejo interned for U.S. Senator Jim Talent's St. Louis office. He is an active member in his church, Zion Lutheran Church in Harvester. Born in St Louis County, Cornejo currently lives in St. Peters with his wife. They have a son and two daughters."

His former law firm describes him:

Robert became an advocate for his district and helped co-write the first comprehensive overhaul of the state criminal code in nearly 35 years. After rising through the ranks, Robert spent the 2014 legislative session as Chairman of the House Civil and Criminal Proceedings Committee. The next legislative session saw Rep. Cornejo become Chairman of the House Judiciary Committee. In just one year as Chairman, major reforms were passed including a comprehensive revision of the state expungement laws as well as passing a new sentencing structure for juveniles that are convicted to first degree murder.

It further notes:

Robert is also an award-winning homebrewer of beer.

He replaces John Larsen, who is a 1980 SLU graduate.  His appointed term expired in June 2018.

His appointment still requires the consent of the Senate. 

https://themissouritimes.com/53219/cornejo-appointed-to-labor-commission-resigns-seat/