Wednesday, August 24, 2016

29 year old awarded PTD benefits based on a need to recline

A 29-year old employee for the department of corrections injured his back, underwent a fusion, and claims he is unemployable because of a need to recline. The Commission affirmed an award of life time benefits.  Brumble v Mo Dept of Corrections, 2016 MO WCLR Lexis 47. 

Claimant asserts he had an annular tear after lifting a heavy item.  Dr. Taylor performed a single level fusion and he was released the employee 6 months later with permanent restrictions regarding his ability to lift more than 50 pounds and restrictions on his capacity to bend, kneel, crawl and squat.  Claimant contends the surgery did not alleviate symptoms that allowed him to return to gainful employment.  Claimant's expert indicated based on claimant's need to lie down during the day that he was unemployable.  The vocational experts concurring no jobs existed that allowed an employee to lie down at unpredictable intervals.

The ALJ awarded open medical benefits.


ALJ Fischer
Experts:  Volarich, Eldred, England, Kaver

PTD award for shoulder with remaining cuff tear

The Commission affirmed an award of total benefits for a left shoulder injury.  Payton v Maryville R2 School District, 2016 MO WCLR Lexis 51.

Claimant, 58, live  in Elmo, MO alleges he hurt his left shoulder lifting a 3-piece 200 pound soccer goal in 2014.

Claimant's expert, Dr. Koprivica, concluded the accident was the cause of a massive cuff tear and as a result the worker was medically limited to only 1 hand work, that he has unpredictable need to recline during the day because pain from the shoulder disturbed his sleep patterns.  He has undergone one shoulder surgery, with a post-operative MRI suggesting a remaining complete tear.   His employer was unable to accommodate his 5 pound lifting restrictions.   He has not worked since March 2014. 


Dr. Distefano found the accident unrelated because of claimant's history of injuring his shoulder a month earlier from picking up a tote.  The ALJ noted  a prior accident lifting a tote that weighed 20-25 pounds, produced 0-1 pain, and required no medical treatment.  The ALJ found that Dr. DiStefano was not credible and did not explain the basis of his opinion. 

Claimaent denied prior "problems" with his non-dominant left arm but had prior surgery to the right shoulder.   He now reports he has constant pain with weakness and loss of motion.  The ALJ notes his arm was so weak he could not help his father from falling.  Claimant attributes his disturbed sleep to his shoulder pain.  He uses a CPAP. 

The Commission affirmed an award for TTD, unpaid medical, PTD and open medical 


ALJ  Miner
Atty: McKay  Collier
Experts:  Koprivica 

Tuesday, August 23, 2016

Claimant fails to show new PTSD after scuffle

In Bowman v Central Mo Aviation, WD 79276 (Aug 23, 2016), 2016 MO App. Lexis 812 the court affirmed a denial of benefits by the Commission on a claim of PTSD based on unpersuasive medical opinion.

Claimant in 2007 claims he developed psychological injury when he claims he was in a scuffle with a pilot who instructed him to clean the plane.  Claimant alleged the 5 second encounter made him feel violated.  He treated for post traumatic stress disorder.  He previously experienced similar symptoms as a result of a kidnapping/robbery  in 2003. 

The ALJ found the prior kidnapping/robbery was the prevailing factor in claimant's PTSD and the last accident was a triggering or precipitating factor.  The commission did not adopt the finding that the 2003 event was the cause but that claimant failed to prove the 2007 event was the cause. 

Claimant and his expert were not found credible.   The commission affirmed. 

The Commission found that based on claimant's expert alone he failed to establish a credible case as "insufficiently persuasive to satisfy (Bowman's) burden of proof."

The court deferred to the commission's findings of credibility.  It noted material inconsistencies in the expert's opinion and that claimant himself was not a reliable source of information. 
"the only objective test Dr. Daniel administered returned an invalid result, he was forced to rely solely on Bowman’s unreliable "self-reported subjective complaints and symptoms" to reach his conclusions. Doing so undermined the persuasive value of Dr. Daniel’s opinion.:

"Though the ALJ offered an alternative source of causation (the 2003 robbery/kidnapping), the Commission did not adopt that part of the ALJ’s decision. Unlike the ALJ, the Commission identified no alternative source of causation. Instead, the Commission merely found that Bowman failed to meet his burden of proving that the 2007 work incident was the prevailing factor causing his medical condition and disability. "....

"The Commission here determined that the factual basis for Dr. Daniel’s opinion (i.e., Bowman’s subjective complaints) was impeached because of Bowman’s inconsistencies and Dr. Daniel’s apparent failure to thoroughly review Bowman’s medical records—a deficiency pointed out by CMA’s expert, Dr. Stillings. "


The court referenced the statute and the need to prove medical condition but did not address what was meant by the statutory term condition.  The Commission suggested condition is not the same as diagnosis and a person with prior PTSD could who had symptoms of PTSD could still claim it was a new medical condition.  No one preserved the issue on appeal nor was it necessary to reach an answer to decide a case based on credibility.



Experts:  Daniels, Stillings

Open medical affirmed without current prescriptions

In City of Columbia v Palmer,  2016 Mo App. Lexis 818, the court of appeals affirmed an award of permanent total benefits against the employer alone with open medical. 

Claimant was pinned in 2011 between his truck and a pole.   He states he could not use his arm after his injury or return to work. 

The court felt the employer relied upon a red herring that the employer's expert did not fully appreciate the correct extent of injury by asserting the entire biceps was removed.  The real issue was whether claimant's limited function rendered him unemployable . Similarly the employer  engaged in hollow criticism that claimant was at fault for not trying harder to recover in therapy. 

The court further noted that the argument was without merit that the scheduled rate for permanent partial disability precluded an award of total.

There was evidence to support an award of open medical even in the absence of evidence that claimant was currently taking either prescribed or OTC medication.   

Bump into cart is sufficient to show a risk source

In Jensen-Price v Encompass Medical Group, 2016 MO App Lexis 813,  the court remanded a claim for permanent and total disability benefits when the Commission denied benefits.

The claimant is a 66-year old nurse practitioner.  In August 2010 after leaving work she was walking down the hallway when she was struck by a housekeeping cart as someone came out of the elevator.  She asserts she was bringing work home at the time.

Her employer refused to provide care.  She underwent a back surgery which had complications.  She later suffered a heart attack.  She claims she is unable to work, she remains dizzy and has to lie down and use narcotics to control her pain.  She also filed a claim against the Second Injury Fund on the basis of a prior back impairment and fibromyalgia.  The vocational evidence is not contested that she is unemployable.

The ALJ denied benefits and found that the accident was going to and from work and was not on property controlled or owned by the employer.  The Commission reversed and found that claimant was still in the course of her employment because she was going home to work,  and that the extended premises doctrine was irrelevant if the employer controlled the property. The commission indicated that claimant could possibly have shown increased risk where she was injured but she did not offer sufficient  evidence on that issue.

The court found the only issue in the case is whether claimant established

"287.020.3(2)(b)'s requirement 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 and unrelated to the employment in normal nonemployment life."


The commission found that claimant satisfied this burden when the  risk occurred because of her employment that she might collide with the cart in a commercial elevator, for the purpose of work only, en route to continue her job duties. 

"There was no evidence that Jensen-Price had any exposure, let alone equal exposure, to the hazard of colliding with a maintenance worker's cart as it was being pushed off of this darkened elevator in her normal nonemployment life."

"The additional testimony from Jensen-Price that the Commission believed it needed to hear to draw this conclusion was not necessary. Testimony as to how pulling the rolling the briefcase may have affected her balance after the cart collided with her leg was immaterial, as she did not need to explain why she fell as a result of the collision. See Gleason, 455 S.W.3d at 502. Likewise, the frequency with which this elevator was dark and the frequency with which Jensen-Price encountered maintenance workers with their carts during normal business hours was also immaterial. Regardless of how often Jensen-Price was exposed, while she was engaged in a work activity, to the risk source of colliding with a maintenance worker's cart as it was being pushed off of this darkened elevator, it was still a risk source to which she was not equally exposed in her normal nonemployment life."

The court deferred to the factual finding that claimant was "working" at the time and distinguished the risk source as a "collision" rather than "just walking," to show how Miller was not controlling.
Miller v. Mo. Highway & Transp. Comm'n, 287 S.W.3d 671, 674 (Mo. banc 2009)

The case was remanded for the Commission to decide whether the employer alone or the fund was liable for the total. 


Thursday, August 18, 2016

No formal claim needed to pursue Schoemehl benefits

The commission in a case of 1st impression concluded that in open cases before July 2008 a surviving spouse can obtain lifetime benefits when the injured spouse dies from unrelated causes and it is not dispositive whether or not a claim is filed.

The holding in Ogden v Conagra, decided by the Commission on August 5, 2016, has important implications for open PTD cases with accidents before July 2008.  In 2008 the legislature changed the rules to preclude Schoemehl benefits of ongoing life-time benefits when an injured employee receiving PTD benefits died from unrelated causes.

The facts in Ogden involve a 2001 accident, a 2009 claim and a 2014 death.  The employer disputed it owed anything more to the widow when the death was from unrelated causes because the claim was filed after he legislative fix.  The employer had continued to pay benefits for disability and medical approaching 2.5 million in the case. 

The Commission concluded the issue was whether there was a cause of action pending and not whether a claim had been filed or not.  The Commission noted there was no reason to file a claim and no justiciable issue because benefits were provided. 

 Many cases following Schoemehl struggled  to define whether or not a claim was pending to qualify for benefits when a death was unrelated.  The fight in these cases is not a fight over traditional death benefits such as burial expenses (arguably barred by  Missouri's 300 week rule) but whether a spouse can step in the shoes of the employee and keep the checks coming as a life time annuity whatever the cause of death. 

 Gervich v Condaire, 370 S.W.3d 617 (Mo. 2012) found the spouse had a (contingent)  property interest in potential PTD benefits even though the contingency was not satisfied  until after the legislative fix when the spouse died.  Similarly, in Busick v Wilson Plumbing, 2013 MO WCLR Lexis 105, a claim was filed after the 2008 fix, and  the same 2-1 majority of the Commission concluded "we are persuaded that the Gervich court's focus on the date of injury means that an employee's dependents may recover under Schoemehl where the injury giving rise to the claim for permanent total disability benefits occurs before closing of the Schoemehl window, regardless whether the claim for compensation is filed after June 26, 2008." The dissenter in Busick wrote a concurrence in Ogden and stated he "reluctantly" agreed to reverse the denial of benefits, as a result of Gervich, but regarded Schoemehl  decision as perverse that offends the notions of fundamental fairness. 

Ogden did not involve any statute of limitations issue as the case involved ongoing benefits until claimant died from an unrelated heart attack.  

Ogden demonstrates  the long tail of some comp litigation and involved ongoing benefits more than a decade after the accident.  Similarly, in Agnew a Aalco, 2014 MO WCLR Lexis 133, the court awarded Schoemehl benefits in a "found dead" case .  In both Ogden and in Agnew,  the court reported that the employer had provided more than 2 million in benefits in each case. 

The holding has  has large financial implications for a small population of old outstanding cases.    The Commission denied a request for costs and fees by the employee and found the area of law was unsettled. 

Wednesday, August 17, 2016

ALJ Finds lack of the term "injury" did not preclude awarding benefits

In Amato v Shade Tree Service, 2016 MO WCLR Lexis 46, DO, the Commission affirmed an award for temporary benefits for a shoulder injury and awarded 27 weeks of unpaid TTD, despite inconsistencies in the medical history or whether claimant asserted a specific injury. 

Claimant is a young  tree trimmer and alleges his shoulder hurt after pulling the cord of a pruner.  He was  diagnosed with a strain and did not identify a specific injury to his initial medical provider.  he later stated he could not recall a specific incident. 

Dr. Emanuel, claimant's expert, opined he likely tore AC cartilage from a work accident.  The ALJ found Dr. Emanuel more persuasive because the employer's expert, Dr. Collard, had inconsistencies in the medical history between his records and the patient intake form.   The ALJ notes the lack of the specific term "injury" is not dispositive whether an injury occurred. 

The ALJ awarded medical treatment and noted claimant was entitled to future TTD:

"if the selected physician determines Claimant would be unable to work during that period, or if Employer will not following the physician’s restrictions."  (emphasis added).
This does not appear to directly track the statutory standard for TTD. The award was unanimously affirmed without separate opinion. 

 ALJ  Wenman
Atty: Christianson, Ball
Experts:  Emanuel, Collard