Friday, December 7, 2018

Commission admits missing pages of report under "interest of justice."

The commission allows the employee to introduce additional evidence on appeal of missing pages of a doctor's report under the "furthers the interest of justice" clause of 8 CSR 20-3.030(2)(B) and 287.550 but noted the report was not newly discovered evidence.  The SIF did not object to its admission.   Harold Williams, dec.   Dakota Coast, 2018 MO WCLR LEXIS --,  Inj.  00-170204  (Oct. 10, 2018)

The case proceeded solely against the second injury fund with settlement by the employer.

ALJ Dierkes notes claimant had never reached maximum medical improvement of the primary injury prior to his death no so disability had never accrued to trigger fund liability. 

The Commission modified the award and found sufficient evidence that claimant had reached maximum medical improvement despite expert opinion that claimant might require additional care.  The Commission denied fund liability based on lack of credibility or testimony about synergy.  Claimant minimized the extent of a prior back condition (20% settlement) or the ongoing treatment for pain management and exaggerated symptoms beyond what could be reasonably established on a physical basis. 

The ALJ noted claimant's expert had erroneous rated for loss of a kidney when claimant had not lost a kidney and had evidence of only a small tumor at the time of his accident. 

ALJ Dierkes
Atty:  Montgomery, Doner
Experts,  Parmet, Cohen  (SIF offered no experts)

Wednesday, December 5, 2018

Denial against SIF supported by insufficient expert opinion on synergy

The Commission affirms a denial of compensation benefits against the Second Injury Fund  in part based on a failure of proof of a synergistic effect between a left shoulder injury and prior loss of sight of the left eye. 

Pierson v The Boeing Company (sif only),
2018 MO WCLR LEXIS ---,
12-0982146,    DOLIR 11/28/2018.

Claimant had established synergistic effect between his neck and eye and finds insufficient medical testimony that there might be "more" synergy involving the shoulder and eye.  Claimant appeals.

The commission noted that 287.190.2 allow a presumption of continued disability only when the prior disability involved the same member or part of the body. 

The commission noted the doctrine of collateral estoppel did not apply in this case against the Fund from disputing the extent of prior disability because the amount of disability existing at the time of the last injury was not litigated in the earlier case.  The prior case adjudicated a rating of 35%, although the present case found 25% to be pre-existing as a result of a two level spinal surgery. Claimant asserts the synergy level of 30% in the prior case should be presumed to continue under collateral estoppel, a point the commission did not accept as the prior case addressed synergy between the neck and the eye instead of the shoulder and the eye.

The Commission did not address the issue of res judicata

The Commission did not address the SIF argument that it had already paid for synergistic effect on the prior eye in one case and was not mandated to pay a second time against a different body part.  The Commission noted the SIF argument  "could" have some merit  "under very particular circumstances" in the future.

The ALJ  awarded a 20% load factor.

The Commission further notes its preference to refer to parties as workers rather than claimants. which had been an issue with the prior Commission that the use of the word claimant (jargon used on the Division's own forms) was somehow pejorative. 


Atty:  Chassaing, Lankford

ALJ Keaveny

Treater:  Nogalski

Experts: Woiteshek

Tuesday, December 4, 2018

Claimant not stuck by stipulation to lower comp rate

T he Commission allowed a claimant to change his stipulation to a compensation rate which would result in manifest injustice when the employer had paid benefits at a higher rate based on actual earnings. Johnson v Value St. Louis Properties, 2018 MO WCLR LEXIS --- (Nov. 30, 2018)

The case demonstrates the parties are stuck with their stipulations, except when the Commission finds enforcement results in manifest injustice.

In this case, the claimant received TTD benefits at a higher rate for temporary benefits than the rate proposed in the stipulated facts.  Notably, the employer had offered  a wage statement which would have supported an AWW of $752, then withdrew it when it showed a rate higher than the lower stipulated AWW of $607.90, and then objected to the employee trying to offer it in  evidence. The ALJ admitted the statement, but felt claimant was stuck at the lower rate due to the stipulation.  The Commission reversed and found claimant entitled to the higher rate. 

The ALJ awarded 50% PPD from an accident moving a refrigerator resulting in multiple back surgeries.   The ALJ noted claimant had spent time in prison but it was not discernible from the testimony.

The Commission affirmed a denial of about 7 months in TTD benefits and opined the issue was not argued in the brief. 

ALJ:  Hart
Atty:  Hoffman, Flanagan
Experts:  Volarich, Dolan, Coyle

Tuesday, November 27, 2018

Failure to prove statutory employment defeats PTD claim against Fund

Lane v Via Boncourier (SIF only)
2018 MO WCLR LEXIS 243
Oct. 31, 2018

The Commission affirms a denial of benefits based on an failure to prove the claimant was an employee under the Act, with a supplemental report to address issues of statutory employment.  Claimant had sought permanent and total disability benefits from the Fund. 

The ALJ found claimant was self-employed.  The claimant sought an appeal and asserted she was a statutory employee.

Claimant entered an employment contract and asserted she was an independent contractor.  Her job was to deliver items and use her own vehicle.

The only dispute was   "whether employee's injury occurred "on or about the premises of the employer," the second  component of the three-prong statutory employment test.  The SIF argued that an accident on a public highway was not on or about the employer's premises.  

The commission applied strict construction and a dictionary definition of premises and found no intent to extend premises to include public highways and found claimant failed to prove all prongs of statutory employment to show she was a covered employee.

A dissent argued that premises must include roads because couriers did not perform their job function by remaining at one location. 

Claimant testified  her work involved at times a continuous 40-hour work environment, but the claimant controlled the means and method of her work and chose her routes of delivery. The claimant could choose to work at will and could refuse daily assignments if she so chose. The claimant's means and operation  of doing her courier work, which involved delivering blood products and bank documents to various individuals and entities, was at her discretion on the time and route of delivery as well as whether she chose to work that particular day. The claimant was reimbursed $ 14 per hour for her time period worked.

The ALJ noted:

"The claimant is deemed to be self-employed as evidenced by the multitude of facts in this case. The claimant candidly and freely admitted that she was not an employee of Via Bancourier, that she signed documentation to that effect. The claimant further admitted that Via Bancourier represented to her that she was not an employee and therefore  not covered under the Workers' Compensation Law. The claimant acknowledged that if she wanted workers' compensation coverage it was her responsibility to provide same. The claimant was not provided any benefits from the employer/insurer beyond the $ 14 per hour agreed upon wage. The claimant was further reimbursed 20 percent of her gasoline expenses for her mileage driven while in the course of her delivery duties. The claimant was further provided a 1099 with no withholdings at the end of every year for her tax records. The claimant testified that for most of the period while engaged with Via Bancourier she was able to work 40 hours per week, this was not guaranteed by Via Bancourier and the claimant could choose to work different hours if she chose. The alleged employer, Via Bancourier, did not execute any right of control on the means and matter of her service as long as the documents that were entrusted to her care were delivered. The duration of the claimant's employment seemed to be at her discretion in that she could choose the hours which she worked. The claimant testified that while engaged as a courier with Via Bancourier there was no expressed prohibition that she could  not engage in similar work for other couriers if she so chose. While there is no bright line of delineation of individual facts which determine whether an individual is an employee of an employer, the multitude of facts admitted to by the claimant in this situation describe an environment in which the claimant was self-employed as a courier doing work for Via Bancourier. The claimant acknowledged that she was not within the workers' compensation system as so engaged with Via Bancourier and chose not to avail herself of workers' compensation benefits."

The employer had settled the primary case for an unspecified amount. 

The ALJ issued no opinion regarding claimant's evidence supported an award of total benefits.

ALJ Siedlik
Atty:  Mayer, Alpough, Hinson

Commission affirms denial of injury by occupational disease due to inconsistencies in records

Jessica Timmer v Gilster-Mary Lee
Inj.  14-073185
2018 MO WCLR LEXIS  244
Nov. 8, 2018

The commission affirms a denial of benefits on a failure of proof of injury by occupational disease from performing various cleaning jobs. 

Claimant reported only temporary improvement after surgery performed by Dr. Vaught for a single disc level and she requested further care including an additional surgery.

Dr. Crane found the symptoms likely related to a non-occupational injury lifting a camera.  He stated spinal symptoms may be spontaneous or from small events such as sneezing.

The ALJ makes detailed findings in a 21 page award noted claimant's testimony was "adversely affected" by inconsistencies in her records, and history, and a belated diagnosis of disc herniation.

ALJ Kasten
Atty:  Elfrink, Remley
Experts:  Poetz, Crane

Claimant failed to prove an accident from shoveling snow.

Richardson v Aramark
2018 MO WCLR LEXIS 245
Nov. 16, 2018

The Commission affirmed a denial of benefits that claimant failed to prove both accident and injury by accident as a result of shoveling snow due to inconsistencies in medical histories and the likelihood that his medical condition was better explained by non-occupational factors of high blood pressure, Type 2 diabetes, coronary artery disease, hyperlipidemia, obesity, and hypertension.

Claimant worked as a custodian and alleged shoveling snow near an entrance way increased his chest pain.  Claimant went to the hospital the same day and underwent  a cath which identified coronary artery disease but no acute MI.  Claimant relied upon expert opinion of Dr. Poetz that he sustained permanent partial disability from a chest strain.  Dr. Cantrell testified on behalf of the employer that claimant did not have pain and tenderness to support a diagnosis of chest strain and that any "atypical chest" symptoms were associated with underlying heart disease. 

Claimant sought recovery of some unpaid medical bills, among other benefits. 

The ALJ found concluded claimant failed to prove accident.  Claimant's medical records and "demeanor at hearing" impacted his credibility.  He indicated records indicating prior symptoms were false and asserted he had no prior issues between a prior heart attack several years earlier  leading up to the work accident. The ALJ noted variances in the amount of snowfall represented significant differences.  The ALJ noted Dr. Poetz  was not certified to evaluate musculoskeletal conditions and did not fully address the role of the prior heart attack.

The Commission found the evidence did not support either accident or injury by accident (medical causation). 

The case demonstrates different analytic tests for proof of accident and injury by accident, the role of credibility on the proof of both elements, and the impact of multiple non-occupational causes to assess prevailing factor.

ALJ Carlisle
Atty:  Niessen, Amsler
Experts:  Poetz,  Cantrell

Monday, November 26, 2018


"Lorne J. Baker, JD, of Olivette, was appointed as Associate Circuit Judge for the 21st Judicial Circuit, St. Louis County.
Administrative Law Judge Lorne J. Baker was appointed as Associate Circuit Judge for the 21st Judicial Circuit in St. Louis County. He will fill the vacancy created by the appointment of Judge John N. Borbonus III as circuit judge for the 21st Judicial Circuit. Baker was one of three nominees submitted to the Governor by the 21st Circuit Judicial Commission on October 25, 2018.
Judge Baker was appointed on October 31, 2016 as an administrative law judge in St. Louis County. He received his Bachelor of Arts degree in Political Science from the University of Michigan in 1990 and his Juris Doctor degree from the University of Missouri-Columbia School of Law in 1993. After graduating from law school, Judge Baker served as an assistant public defender in St. Louis City from 1994-1999.

Judge Baker is a member of the Lawyers Association of St. Louis, Missouri."