Friday, December 2, 2016

Failure to provide available safety equipment provided basis for tort claim

Nolen v Gary Bess, etal
ED 101591 (Mo Ct. App. 2016)
Nov. 29, 2016

Claimant worked as a janitor and sued his employer when he fell from bleachers which he was cleaning.  He appealed a summary judgment motion for the defendant that he failed to  establish a breach of personal duty outside the duty to provide a safe work place. 

The court of appeals reversed and found that allegations that the employer specifically instructed claimant to clean the bleachers without rails and withheld safety equipment  was a breach of a personal duty outside the duty to provide a safe work place.  The claim arose in the "gap" before 2012 concerning co-employee liability.  Claimant alleges he specifically asked for protection from falls and it was not provided.

Claimant's spinal injuries had resulted in paralysis.

Wednesday, November 16, 2016

Amputee awarded maximum statutory benefits.

Daniel Small v Red Simpson Inc.
2016 MO WCLR Lexis 76 (Nov. 10, 2016)


The commission on remand , 484 S.W.3d 341 (Mo. App. 2016),  awards benefits and reverses its earlier position that the case was barred by the statute of limitations and the statute was not tolled by payments made by a worker's compensation claim from the same incident in Texas, where the accident occurred.

The case relates back more than 20 years to a 1995 accident.  Claimant sustained an electrocution injury and amputation to his forearm.  He had a subsequent injury in 2008 and prosecuted that case to obtain a permanent total award against the Fund.

The commission found he was not precluded from seeking PPD benefits also on the 1995 case. The commission found the employer was not entitled to any "credit" for the Texas case because there was no evidence what disability the prior settlement represented.  The employer offered no medical defense on the 1995 injuries.  The commission recognized a credit for TTD benefits paid. 

The commission awarded 110% of the elbow, an additional 15% BAW based on "pain" complaints from claimant's expert, and the statutory maximum 40 weeks for disfigurement.  The commission rejected the claim to disfigurement because claimant could use a prosthesis, and did not regard the argument as even a colorable defense.  The employer offered no ratings of disability. 

ALJ Mieners
Atty:  Kelly, Johnston
Experts:  Stuckmeyer

Commission reverses denial in toxic exposure case

Franken v Honeywell dba Bendix Corp.,
2016 MO WCLR Lexis 75
Nov. 10, 2016. 

The commission reversed a denial of benefits, and found the death causally related on  medical evidence which established exposure to chemical agents without clarification regarding scientifically accepted levels to cause injury based on magnitude, frequency or duration. 

While treating for cancer  at Anderson claimant took a dose of methadone in his hotel room, had an adverse allergic reaction, and went into septic shock resulting in organ failure resulting in death from organ failure and respiratory distress in 2005.  An autopsy identified a small cell carcinoma in his lung.

Claimant worked in the meterology department at Honeywell.  The ALJ found no evidence of toxic exposure,   The defense expert found flawed methodology and no epidemiology or experimental studies which showed a link of bellyrium and claimant's cancer. The Commission  concluded it was undisputed that claimant had some exposure and that was enough without having to show some exposure was a scientifically proved toxic exposure. 

The first time any expert made a connection between exposure and his death was several months after claimant had died. The court found under pre-reform law there was no statutory duty to provide notice in an occupational disease case.    Dr. Parmet, claimant's expert, had previously developed a bellyrium awareness program for the defendant. .  He found the death likely due to exposure of multiple dangerous chemicals and not solely to bellyrium.

The commission found that specific omission of evidence of the magnitude, frequency and duration was too rigorous burden of proof and was "over-arching" and contrary to law.  The commission found the type of cancer was not an ordinary disease of life because it was rare and that experts established some exposure to various chemical agents as the likely cause of a carcinoma. 

The commission ordered equal shares to the surviving spouse and two grandchildren, who were total dependents by guardianship dating back to 2005. 

Back TTD ordered for disputed repetitive trauma

Clawson v Cassens Transport Company
2016 MO WLCR LEXIS 70 (Nov 1, 2016)

The commission affirms an award of benefits for a 2015 knee injury in a temporary award as an occupational disease.

Claimant asserts that he had a very physical job.  The employer refused to send him to a work comp doctor after he described worsening of his symptoms.  Claimant's expert concluded that an MRI finding in 2016  of a new meniscus tear  flowed from his work duties.  He had been released from the 2010 accident with a knee strain based on a normal MRI. 


The ALJ ordered TTD benefits based on claimant's testimony that he felt he was unable to work and work restrictions that prevented from kneeling or squatting.  The employer was ordered to pay more than $55,000 in back TTD benefits at the time of the award plus ongoing benefits.  The employer had paid some benefits and had made a 4,000 advance. 

The ALJ notes the employer raised a notice defense but had a witness sit in the court room and was not called to testify.   "Mr. Liljequist was present in the courtroom for the entirety of the employee's testimony. However, Mr. Liljequist was not called to give any contrary testimony on the issue."

Commission awards benefits for plantar fasciitis.

Williams v Tyson Poultry
2006 MO WCLR Lexis 74
(Nov. 1, 2016)

The Commission affirms a temporary award for benefits for plantar fasciitis from working on concrete floors.

Claimant asserts that he had to stand during 12 hour shifts. 

The employer was ordered to provide treatment, pay back TTD, and the judge noted insufficient evidence to support a defense that claimant had collected unemployment benefits.  The employer expert agreed claimant required restrictions but found the condition more likely related to a non-occupational condition.  The experts disputed whether he had  pes planus. 

ALJ Dierkes

Appeal to stop award for interest fails due to appellate rules


William Scott v Saladino Mechanical and Cincinnati Ins. Co.
WD 79516  (Nov. 15, 2016)

The employer disputed paying interest on a permanent total award.  The court found the employer prematurely and without jurisdiction tried to stop enforcement of the award through circuit court.

The case arose from a 2007 accident.  The ALJ awarded permanent total with open medical and awarded past medical with a proviso "any past due compensation shall bear interest as provided by law."  The Commission affirmed the award.  The employer did not appeal further.

The employer  paid the award but refused to pay any interest.  The employee registered the judgment in circuit court and the judgment was not appealed further.  The circuit court denied by "order" that the judgment was enforceable and not  too vague.

The court concluded the appeal was filed out of time, does not meet the foundation requirements of Rule 76.25 which requires proof of a levy (there had been no actual attempt at enforcement), and the "order" does not meet the foundation requirements of a "judgment" as required by Rule 74.01(a).

The decision never delineates the dollars of interest in dispute behind a collateral attack on appeal.

Friday, November 11, 2016

Court affirms death benefits without safety penalty reduction

Hadley, dec. v Beco Concrete Products
SD 34941 (Nov 10, 2016)


Affirmed death benefits and denial of safety penalty


Claimant drove off of a highway while operating a flatbed truck in 2012 and died in the accident.  The employer appealed the Commission not to apply a safety penalty  to survivor benefits.

The Commission based wages under 287.250.4 based on income for the preceding year and used comparable full-time employees under the exceptional circumstances provision to calculate wages because claimant's work schedule was irregular.  The court found no error to calculate wages in this method.

The Commission rejected the employer's contention that it warned the driver as a company safety rule to comply with safe driving procedures and that the claimant was speeding and violated the safety rule in conjunction with his accident. The Commission noted such warnings must be with a greater degree of specificity.  The court found no evidence to show when and where  the employer had adopted such a safety rule and had no persuasive evidence the claimant was speeding at the time he went off of the road.

The court noted the appellant made multifarious arguments contrary to the rules.

https://www.courts.mo.gov/file.jsp?id=107515