Wednesday, December 15, 2010

287.420 notice

Notice of tinnitus in claim satisfies notice requirement

Claimant alleged he developed hearing loss and ringing in his ears from is career  as an airline mechanic.  He did not establish a compensable hearing loss but ringing in his ears was sufficient to establish a second injury fund claim and support an award of total disability combined with his prior COPD.  The Commission noted claimant had no duty to provide notice until he became aware the condition was work related.  Sparks v American Airlines, 2014 Mo WCLR Lexis 109 (Sept. 16, 2014). 
ALJ  Nelson
Atty:  Baker
Experts:  Koprivica, Titterington

Knowledge of treatment of medical condition does not constitute notice
Claimant's claim for compensation was the first written notice of an accident and she failed to establish a lack of prejudice to the employer's ability to investigate or direct timely treatment.    Claimant describes worsening orthopedic and mental conditions after a confrontation with a combative patient.  The employer may have had knowledge that she was treating for her back but not that it flowed from the work injury.
The ALJ found the claimant did not prove accident or notice and was not credible based on  inconsistent medical history, court room demeanor, disproportionate subjective symptoms and inaccurate statements on an employment application.  The court suggests claimant's worsening mental symptoms were in conjunction with drug use and did flow from the work injury.   Gibbons v St. Louis Univ., 2013 Mo WCLR Lexis 5.
Atty:  Gregory, O'Sullivan, Cunningham
ALJ:  Ottenad
Experts:  Volarich, Stillings, England, Smith Wayne

Stipulated PPD diminishes notice defense
The injured worker hurt his knee when he fell on black ice, he treated on his own, and waited nearly two months beyond the statutory 30 day deadline to provide notice to his employer but the Commission reversed a denial of benefits based on an absence of prejudice.
Statutory reform requires written notice in 30 days and removed the "good cause" excuse for late notice and timely written notice can now only be excused if that failure did not prejudice employer. "Claimant admittedly did not provide notice to Employer at that point out of fear that she would get in trouble for not following Employer's policy that all injuries must be immediately reported."

The case proceeded on the sole disputed issue of notice and the employer stipulated to all other facts including an agreed amount for disability. The ALJ concluded prejudice existed because the employer did not have the opportunity to investigate the accident or minimize the disability. The employer asserts investigation could have determined whether claimant violated any safety policies regarding non-slip footwear.

The commission noted the employer's stipulation to disability undermined its argument that more timely notice would have reduced disability. Similarly, the commission found no prejudice regarding the inability of the employer to manage medical expenses by directing care because claimant did not submit the medical bills. The commission did not find persuasive that the employer had potential prejudice from a possible safety penalty when there was no evidence of actual prejudice and the employer had not asserted a safety penalty as an affirmative defense. Faulker v Aramark Educational Services, 2012 Mo WCLR Lexis 202 (Dec. 6, 2012) ; 2013 MO WCLR Lexis 204 (Oct. 30, 2013)(reversing prior decision granting compensation after mandate establishing no evidence on lack of prejudice).
ALJ: Ottenad Atty: Eveland, Amsler

The claimant did not have an obligation to provide notice of an occupational disease until a doctor made causation, which did not occur until after claimant completed treatment and saw her own expert witness.  The Commission modified an award of 25% PPD of the shoulder to PTD against the employer when it concluded that lack of notice did not preclude awarding additional disability for both arms and a psychiatric claim.  The Commission criticized the exhibits regarding medical bills and stated it would not serve as an advocate  but noted it went through "considerable difficulty" to find more than 23,000 in  bills compensable. 
Berend v Fasco Industries, 2012 Mo WCLR Lexis 189 (Nov. 8, 2012).
ALJ:  Fischer
Atty:  Allen
Experts:  Volarich, England

The claimant failed to prove she established timely notice as required by 287.420, according to a decision affirmed by the Commission in Cotter v Bakersfield R-IV School, 2010 Mo WCLR Lexis 197. Claimant alleged she required a C5-C7 fusion in 2005, as a result of lifting a 40 pound box of canned food in 2004. The administrative law judge noted claimant first provided written notice of a work related accident 5 months after her surgery, and found claimant's lack of any documented history of a work-related history significant. The lack of history was explained by the excuse that the topic did not come up. The claimant failed to overcome a finding of prejudice when her own expert testified that earlier treatment may have alleviated the need for surgery. An expert indicated that claimant's lack of medical treatment for a month was unexplained, as a ruptured disc would likely have caused immediate symptoms and a need to pursue earlier care. The administrative law judge declined to accept that the employer's personnel file was materially incomplete or that the employer was subject to a negative inference for not calling the former superintendent, who claimant reports she may have told about a work injury.

ALJ: Mahon
Atty: Alberhasty, Goodnight
Experts: Koprivica, Lennard, England

Claimant did not have a duty to report her carpal tunnel until October 2008 when Dr. Schlafly associated her condition to her employment. The commission found the employer's obligation that the 30 day reporting deadline began when a diagnostician made the connection. "Stray" comments that claimant had carpal tunnel and "does a lot of typing" was not sufficient to trigger a duty to report to her employer following an EMG study performed 5 months earlier.

The Commission noted 287.420 required notice of the "time" of injury, and notice was deficient when the claimant used a date of diagnosis (the EMG study) when there was no exposure or employment on the pled date. The employer, however, failed to demonstrate any evidence of prejudice as it had an opportunity to investigate the claim within 3 weeks of the EMG diagnosis, and had earlier knowledge of hand symptoms even months prior to the EMG study. The Commission in a separate opinion noted the employer misread Alcorn and 287.420.

The employer relied upon expert testimony that claimant had other risk factors for carpal tunnel syndrome including age, gender and obesity and asserted that claimant's activities were not hand intensive. The ALJ observed Dr. Crandall relied upon European studies and assumed ergonomic exposures were similar in this case: "Dr. Crandall relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. Dr. Crandall did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture." The case is Beckton v AT&T, 2011 Mo WCLR Lexis 114.
ALJ Carlisle
Atty: Evans, Cordes
Experts: Sclafly, Crandall

Fund PPD award affirmed

The Commission affirms an award against the SIF for permanent partial disability benefits based on statutory minimums of 15% of the right wrist and ankle. No basis for alleged error is identified. The award does not identify that the SIF offered any expert evidence with a lower disability. Claimant had multiple prior injuries involving the foot/ankle and wrist dating back to 1987, but offered limited medical records. The employer settled the primary case for 37 1/2% disability for two replaced cervical discs, resulting in over $100,000 in medical bills and permanent restrictions of medium duty which precluded claimant from returning to his 3 year career as a firefighter. Battle v City of St. Louis, DOLIR 12-15-10.

ALJ: Carlisle
Atty: Thurman, Smith
Experts: Volarich
Treaters: Taylor

Thursday, November 11, 2010

SIF defenses

Post Accident Worsening
Claimant did not prevail in his second injury fund claim when the primary settlement for hernia did not reach the statutory threshold and any PTD flowed in part from post-accident worsening of pre-existing conditions.  Claimant's prior settlements for various injuries represented 96% BAW.  The ALJ notes the case involves pre-reform liberal construction to establish a primary injury of hernia from a series of events.  Hager v Steelwood Equipment, 2012 Mo WCLR Lexis 151 (August 2, 2012)
ALJ  Kohner
Atty:  Edelman
Experts:  Poetz, England, Cohen, Cantrell

Claimant's vocational expert fails to differentiate post-accident worsening in a claim of permanent total benefits.  Rowe v Barnes Jewish Hospital, 2012 MO WCLR LEXIS 66.
ALJ Ottenad
Atty: Merlin, Frazier
Experts:  Stillings, Berkin

Claimant failed to prove a compensable PTD claim because unemployability flowed from post accident worsening of her neck to become a candidate from fusion and worsening of diabetes. The ALJ found claimant went back to work for about 1 1/2 years from her back strain answering phones, and such work based on lifting restrictions was accommodated and considered employment in the open labor market. Lewis v KU Medical Center, DOLIR 3-31-11.
 ALJ: Meiners Atty: Hill Experts: Koprivica, Titterington

Claimant convinced an administrative law judge that her MS rendered her unemployable, but failed to show her PTD flowed from a combination of primary osteochondral knee injury and pre-existing conditions, and not from post-accident worsening. Experts did not support the statutory requirement for a synergistic effect when the MS condition alone was of such a magnitude to render claimant unemployable. Hill v The Boeing Company, DOLIR 11-4-10
 ALJ: Ottenad
 Atty: Gault
 Experts: Cohen, Kramer
 Treaters: Dr. Ma, Dr. Kos

Claimant established he was unemployable but did not prevail in a PTD claim against the Fund due to post-accident worsening of orthopedic injuries.  In addition he developed other serious non-occupational medical conditions. Claimant was unable to participate in the hearing because he was in hospice for stage four medical condition. Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014). 
ALJ:  Landolt
Atty:  Monticello, Hudson
Experts:  Cohen, Pelikan, England

Statute of Limitations
A "claim" for purposes of reviewing a statute of limitations defense under 287.430 includes both a claim for compensation and a settlement, according to the western court of appeals, finding a claim against the second injury fund filed within a year after a settlement with the employer was timely. The decision follows a similar interpretation in 2009 in the Eastern District. The case is Treasurer of the State of Missouri v Phillip Cook, WD 72019 (Mo. App. 10-26-10). The court found the Fund's attempt to base its argument based on dictum is not persuasive. The Commission reversed an initial denial based on the SOL defense.

The second injury fund argued the award for PTD in a 2003 case was not supported by substantial evidence, but offered no evidence from any vocational or medical experts to rebut testimony from Dr. Stuckemeyer and Mary Titterington. Claimant was 64-years old and had an 8th grade education and the Commission found claimant not employable in the open labor market based on his primary settled injury involving a 20% right shoulder and prior conditions rated by Dr. Stuckmeyer for the same shoulder, the left shoulder, plantar fasciitis, back, and a heart problem. How these earlier conditions impaired claimant's capacity to work beyond limits from his education and age is not entirely clear in the opinion. The court deferred to the Commission that claimant was credible that attempts to return to work were a "real struggle" and that claimant's return to work after his primary work injury was not decisive whether or not he could compete in the open labor market.

The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, ED 92457 (Mo. App. 12-1-09). The court further rejected the Second Injury's Fund defense under the statute of limitations and found a "claim" was not always a WC-21 claim form, but could also be construed to mean the settlement itself for purposes of starting application of the 24 month statute of limitations. Claimant did not file a claim until 26 months after the original accident date.

In Cook v Calmar, DOLIR 1-14-10, the Commission followed Grubbs and reversed a denial of benefits, based on the same SOL defense when the claimant filed a claim against the fund 1 month after settling the case against the employer. The Fund produced no other medical or vocational evidence, to contest the claim, and ultimate award, for permanent and total disability arising from a 2003 accident.

Unjust enrichment

The claimant was awarded $254,700.20 in unpaid medical bills following two months of treatment for lung and head injuries as a result of falling off of a scaffold while working for an uninsured employer. The Fund did not raise any objections or offer any evidence at the hearing, but on appeal to the court of appeals disputes it should pay the award directly to claimant since the claimant might compromise the bills and use the balance as a windfall. The court clearly rejects the argument in Skinner v. Donna Morgan, SD No. 30019 (Mo. App. 3-8-10), finding strict construction and prior case law of Wilmeth v TMI Inc reject such a defense as unfounded and "conjuring a speculative scenario."

Appeal - failure to use exact statutory language in decision is not reversible error

Claimant injured his knee and sustained 15% new disability as a result of a meniscus tear, and received an award for permanent and total disability against the second injury fund because of prior conditions including multiple previous injuries to the same knee, the opposite leg and other conditions. The administrative law judge rejected opinions of Dr. Randolph who testified for the Fund that claimant never had any disability from his last accident and his impairment flowed from prior osteoarthritis. The Commission found evidence that claimant's last accident had caused a new 'medical condition', even though the administrative law judge did not use the phrase 'medical condition' in its findings. The court of appeals concluded that the failure to track the specific statutory language was not reversible error, and noted the Fund failed to provide any legal reasoning to support its proposition. Savage v Treasurer of Missouri as Custodian of Second Injury Fund, ED 93869 (Mo. App. 4-27-10).

No threshold amount

The commission modified an award against the second injury fund, increasing it from $18,180.60 to $23,539.33, finding claimant's primary foot injuries from standing on concrete synergistically combined with his prior asthma, sinusitis, and psychiatric issues to cause additional fund disability. The administrative law judge deemed such pre-existing conditions too minimal to award disability. Claimant, 38, had prior workers compensation settlements and pled claims against the second injury fund ranging from ringing ears to gastric issues. Claimant failed to prove repetitive trauma injury to his neck in a companion case when expert testimony was inconsistent with medical records. Dodson v von Hoffman Press, DOLIR 9-23-10

ALJ Fischer
Atty: Christiansen,
Experts: Lichtenfeld, Hogan

Tuesday, October 5, 2010

Trial stipulations limit scope of disputed issues

"New Evidence" denied on appeal for issues outside scope of stipulated issues

Claimant seems to argue after the hearing  he discovered he  needed new evidence  on a necessary element of the case and attempted to introduce it on appeal under the rule to allow newly discovered evidence.  The Commission rejected the idea and affirmed a denial of SIF benefits for wage loss.McDaniel v Furniture for Less, 2016 Mo WCLR Lexis 12 (Feb. 4, 2016).

The record noted that the parties stipulated that the claimant was an "employee" but never stipulated that the  "employer" had sufficient numbers of employees to trigger fund benefits. 

The Commission rejected the Fund's motion to dismiss the appeal for not complying with the regs to state specifically the reason the findings and conclusions were wrong.  The Commission noted it allowed the appeal on the merit, but noted that the application  only  "minimally satisfied' the requirements. 

ALJ Fischer

Stipulation to amount of TTD precludes appeal of issue by employer

The employer disputed TTD on appeal.  The  Commission indicated that the employer could not dispute the amount of TTD, based on any alleged miscalculation, if it had already stipulated to the lump sum  at the beginning of the hearing.  Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84 (June 18, 2014)
ALJ Denigan

Fail to raise issue of a credit from a prior settlement waives issue
Claimant fell and hurt her knee and received an award to her back for worsened back symptoms following her 2011 accident and use of a knee immobilize for several weeks.   The Commission noted that claimant was trained as a nurse and  jousted with the attorney to describe her many shades of pain including distinctions between discomfort, spasm, stabbing, pinching and radiating in a way no ordinary person would describe it.  Harris v Columbia Staffing, MO WCLR Lexis 233 (December 19, 2013). The case is important regarding the scope of review and limits on a judge's powers based on stipulated issues.   The employer asserted it was entitled to a credit from an award in Kansas against any PPD owed and the Kansas award was attached as part of the record.  The Commission, however, reversed concerning finding of  a credit and concluded the employer waived any right to a credit because it was not raised as a disputed issue.  Further, the Commission found no stipulation that benefits had been paid pursuant to the earlier award.   Similarly, the commission noted there had been no stipulation to the nature and extent of TTD, and it would not address the issue sua sponte when the issue  had not been preserved on appeal.    "Where no party has requested relief, we are reluctant to engage in the sua sponte action of enlarging the scope of issues on appeal. This is especially true in this case, where employer appears to agree that the administrative law judge determined the appropriate time period of temporary total disability."  

 ALJ Siedlik
Atty:  Fox, Doyle, Seliga
Experts:  McNamara, Egea

Stipulation of accident in answer binds employer
The employer admitted claimant had an accident at work going up some stairs and attempted to file an amended answer an hour after the hearing in a temporary award started.  The ALJ found the employer was bound by its earlier admission, and that additional facts supported the finding of accident.  In the case, the ALJ awarded treatment for a back, even though the experts disputed whether or not a herniation was present.  Morris v Curators of the Univ. of Mo., 2013 MO WCLR Lexis 159 (August 22, 2013)
ALJ  Dierkes
Atty:  Kiefer, Floros
Experts:  Robson, Chabot

Stipulation of accident undermines expert's opinion
The Commission reversed a denial of benefits to a 60 year old clerk who moved a desk in his job with the House of Representatives, described acute neck pain, and underwent a C5-C7 fusion which still left unresolved neck pain and radiculopathy.  Connor v Mo House of Representatives, 2013 Mo WCLR Lexis 141 (August 7, 2013).   The ALJ found claimant failed to prove causation when he did not obtain treatment for three months.  The Commission essentially found the defense expert over-relied upon the absence of documented medical history to dispute accident as the employer had conceded accident as a stipulated issue.  The Commission also a radiologist suggested that claimant had a traumatic injury.
ALJ:  Fischer
Atty:  Holwitt
Experts:  Meyers, Reinsel
Treater:  Byam

Stipulation alleviated obligation to prove synergy
In a fund case the SIF and pro se stipulated to disability but did not stipulate to synergy.  The ALJ found

"Given the fact the primary and preexisting disabilities are to the upper extremities, and to different parts of the same extremity, I find there is sufficient evidence to establish that the combination of the disabilities is greater than the simple sum."

A dissenting commissioner found that the ALJ unsuccessfully attempted to solicit testimony from the pro se claimant to establish synergy as there was no medical evidence addressing the issue and considers the majority "ignoring reality"  the claimant failed to establish this element of proof. Cassell v Dierbergs, DOLIR 6-27-2013.

ALJ Boresi.
Atty:  pro se, Barnard


In a claim against the second injury fund for benefits, claimant agreed to waive any claim for PTD benefits in exchange for the Fund's agreement "not to contest" the synergistic effect between the prior injury and primary injury. The Commission denied benefits, in part, when claimant offered no evidence of synergy to prove the Fund claim and found an agreement "not to contest" was not the same as an agreement that synergy existed. Stipulations are controlling and conclusive and the courts are bound to enforce them. The dispute arose because the stipulation was not clear. The court of appeals found the Commission misconstrued the intent of the parties and the terms alleviated claimant of the obligation to produce additional evidence of synergy. The case was remanded on other grounds for the Commission to make a finding on the degree of pre-existing disability. Hutson v Treasurer of Missouri as Custodian for the second injury fund, 2012 Mo. App. Lexis 502 (ED April 17, 2012). On remand, the Commission found pre-existing impairment did not reach statutory thresholds to award fund benefits. 2012 Mo WCLR Lexis 114 (June 15, 2012).

In a Fund case, the ALJ erred in his finding that the Fund stipulated to a synergistic effect and the Commission reduced the award against the Fund from 80.64 to 18.6 weeks finding the award was "excessive."  Jones v Special School District, 2012 MO WCLR Lexis 204 (December 6,  2012).
ALJ  Denigan
Expert:  Margolis

Claimant alleges the employer paid TTD benefits through December 2009, that the employer stipulated the MMI was October 2009, and the ALJ erroneously asserted a credit based on a finding of MMI in December 2007.  The issue in this case is if the employer could assert a credit against PPD for over-paid TTD benefits.  Claimant had a multi-level neck fusion in 2006 and a right shoulder surgery in 2007, but claimant  underwent further MRI/arthrogram studies of the shoulder in approximately October 2009.  The ALJ documents extensive pain management.  The Commission  found no stipulation existed on the date of MMI even though the employer stated that he "may think" that MMI was October 2009 because the testimony was not a "definitive stipulation."  The ALJ ultimately found that claimant had a previous neck surgery, less than a year later he reinjured his neck and shoulder when he was jerked around in the cab of a scaler, and he sustained partial disability against the employer and total disability against the Fund.  Prier v Doe Run Company, 2012 MoWCLR Lexis 174 (September 27, 2012).  The takeaway from the case is a stipulation is not a stipulation unless parties call it a stipulation.  The ALJ had allowed a stipulation that the claimant would testify in conformity with his statements to Dr. Volarich in lieu of re-opening the case.

ALJ Robbins
Atty:  Lory, Seufert
Experts:  Volarich, England,
Treaters:  Boland, Hulsey, Guarino

A stipulation regarding PTD rate is controlling and conclusive, even though the Commission discussed other evidence such as a report of injury which might support a higher rate. Claimant was awarded PTD benefits against the Fund and proposed on appeal two different higher PTD rates although he stipulated to a lower rate at the hearing when he asserted there was no difference between the PPD and PTD rates. The ALJ left the record open for additional evidence and no evidence was presented to the Commission that the report of injury was unavailable at the time of the original hearing. Gilbert v Brundage Bone Concrete, 2012 Mo WCLR Lexis 163 (August 29, 2012)

ALJ Mahon
Atty Cummings
Experts Bennoch

A stipulation regarding disputed body parties is controlling and  a party cannot add disputed body parts at trial when the issue is not identified prior to the hearing.  Claimant asserts that the Commission wrongly denied him benefits for carpal tunnel arising from his use of crutches for a 2002 ankle fracture because he presented a causation opinion and ratings from his expert, Dr. Schlafly. Dr. Sudekum, the employer's expert, agreed with the diagnosis of bilateral carpal tunnel syndrome but attributed the condition to arthritis. The court of appeals stated that injuries to a specific body part must be presented to the ALJ. The court reports that claimant pled injuries to the "neck, wrists and ankles" as a result of a 2002 accident and introduced medical evidence to litigate the issue but the Commission properly denied benefits to the left wrist because claimant "did not claim injury to his right wrist before the ALJ, but only specifically to his left wrist, caused by the April 27, 2002 work accident. He did allege on review to the Commission that he had bilateral carpal tunnel syndrome that had not resolved, and therefore was disabled in both wrists. "
The court of appeals in Poole v City of St. Louis, ED 94052 (Mo. App. 10-5-10),  affirmed the Commission's denial of permanent and total disability benefits, but remanded on a denial of future medical care because the Commission summarily denied future medical care without explanation and did not distinguish between Dr. Volarich's opinions for future medical care for radicular pain (found caused by a subsequent accident moving a mattress) and care for "back pain syndrome" that might be work related.

The ALJ erred awarded a higher load factor than stipulated by the parties.  Neff v Fulton State Hospital,    2011 MO WCLR Lexis 247.
ALJ  Zerrer
Atty:   Kieffer 

The ALJ lacked authority to decide "accident" when both parties stipulated to existence of an accident.  McCoun v OPAA,  2012 Mo. WCLR  Lexis 6 (2-1-12)
ALJ  Allen

The ALJ erred find a disputed issue when the parties stipulated to occupational disease for an employee who installed floors for 9 years.    Vance v Blake Flooring, 2009 MO WCLR Lexis 108.
ALJ  Vacca

Disfigurement award affirmed when claimant showed scar to judge, but disfigurement was not a stipulated issue. McDonald v Bi-State Development Agency, 2009 MO WCLR Lexis 180.
ALJ Vacca

A stipulation or finding of disability of MMI must be consistent with the records.  For example, a finding that PTD disability occurred when the employer closed its plant in 2000 was not consistent when claimant continued to treat for another 4 years and the parties stipulated to 2004 as the correct date.  Gruendler, ec.  v Union Camp Corp., 2010 MO WCLR Lexis 127.
 ALJ Hart

A stipulation must include the amount of prior disability.  In one case the parties stipulated to a settlement in Kansas of $60,000 but not the prior percentage of disability, and the ALJ independently found 30% prior disability resulting in a different starting date for SIF benefits.  Mayse v Jeff Honor Roofing, 2011 MO WCLR Lexis 19.
ALJ  Magruder

Tuesday, September 21, 2010

25% BAW awarded to painter with 20/20 vision

Claimant asserts he could not return to his life-long profession as a painter, after dripping paint caused abrasions to his corneas when he was painting a ceiling and caused ongoing symptoms of severe dry eye required medication and disturbed his sleep. The Commission modified an award to 25% BAW, based on a rating from claimant's expert, Dr. Musich, and disregarded a 0% rating from Dr. Pernoud, who concluded claimant had unimpaired vision with glasses at 20/20 but continued to require drops. Claimant was 48 years old.

The Commission found that the administrative law judge erred in his findings that claimant had symblepharon, when the diagnosis was not identified in the medical records. The Commission
assessed disability at the 400 week level (287.190) instead of using the medical tables in the regulations for vision loss at the 140/260 levels, noting application of the tables at a lower compensation formula did not apply because claimant's dry eye was not a specifically enumerated condition.

David Hicks v St. John Development, DOLIR 9-21-10
ALJ: Denigan
Experts: Pernoud, Musich

Wednesday, September 1, 2010

Court rejects lower comp rate for atypical duties

The employer paid claimant benefits based on her salary as a teacher, but then claimed a statutory minimum rate applied under "strict construction" because at the time of the accident claimant worked atypical duties at a ticket gate for a school-sponsored football game. The Commission unanimously affirmed the decision rejecting the defense, finding it had "no merit" and there was no authority whatsoever asserted for the proposition to apply different rates based on segregated job duties.

The employer had stipulated the employee was covered, but later apparently questioned in a brief if claimant was excluded as a contest worker under 287.090.1(5). The administrative law judge found no basis to argue exemption as claimant was otherwise employed by the sponsoring school

The administrative law judge further found the employer had underpaid wages by calculating the rate over 52 weeks, instead of using a 9-month employment calendar. The 62-year claimant received an award of 17 1/2% disability for a fracture of the right humerus. The statute allowed discretionary award of disfigurement for a scar of the "arm" but not the "armpit." Lunn v Montgomery County R-2 School District, DOLIR 9-1-10.

ALJ Dierkes
Atty: Edelman
Experts: Poetz, Oliver

Tuesday, August 31, 2010

PPD Defenses: Failure to Allocate

The claimant  failed to allocate what disability, for purposes of second injury fund liability, existed at the time of the primary accident and what disability flowed from post-accident worsening.  The Commission modified the award, appealed by the Fund, and reduced the award by about 3 weeks.  Faerber v Schwan's Food Industries, DOLIR 4-17-2013. 
ALJ  Landolt
Atty:  Weigley
Experts:  Musich

The claimant established that he sustained "some" psychiatric and cervical injuries when a trench collapsed, but his medical evidence did not support an award for those conditions due to the failure to allocate disability. Schmidtt v City of St. Louis, DOLIR 3-26-2013.

ALJ: Ottenad
Atty: Morgan, Tanner
Experts: Sky, Magrowski, Meyers, Musich, Bassett, Kostman

The Commission reduced an award of 22 1/2% to 6% for a knee injury when claimant's expert failed to allocate disability between two knee injuries. Dye v Lafayette County, 2012 Mo WCLR Lexis 199 (Nov. 21, 2012). The Commission noted the ALJ had not provided analysis and findings on this particular issue as only one case was before the court.
ALJ Mieners
Expert: Stuckmeyer
Treater: Wise

Claimant is a 50-year old poultry plant employee who alleges she injured her back in 2003 when she fell backwards while putting on a booty and hurt her back again in 2005. She returned to the plant following her October 2006 back surgery until the plant closed in 2008, and then claimed she was unemployable due to chronic back and leg pain. ALJ Holden awarded 15% disability based on a rating from her expert, Dr. Bennoch, for a head injury but noted claimant's expert failed to apportion whether the 2003 or 2005 accident caused her back disability. Dr. Bennoch indicated that "some" disability flowed from both accidents, and originally attributed all the disability to the first accident. Claimant reported after the first accident she was essentially pain free. Dr. Woodward identified 12% for the "work-related condition."  Crank v Willow Brook Foods, DOLIR 1-21-10.

In Moll v Martin Marietta Materials, DOLIR 3-17-11, the Commision found that claimant's expert allocated 0% disability pre-existing to the back based on claimant's denial of symptoms, and reversed a finding that claimant had failed to allocate prior and current disability to the back. The Commission award 22 1/2% of the back for claimant's alleged injury to 2 disc bulges with nonradicular lumbar syndrome, following an incident when claimant stated she was driving a truck and she hit a ditch in the road and bumped her head. Claimant had undergone a two level cervical fusion following the incident, resulting in an award of 27 1/2% BAW.

ALJ Robbins
Atty: Rice, Dietrich
Experts: Volarich, Chabot
Treater: Gibbs

In Shelton v Missouri Department of Public Safety, 2013 MO WCLR Lexis 11 (January 23, 2013) the Commission affirmed a denial of benefits.  Claimant alleged he hurt his back in 2009 lifting a patient but his expert was unable to allocate disability between two separate accidents and was found to lack credibility when he changed his opinion during testimony.  The commission chided:  "It appears the question [of disability] is beyond his expertise or ability" and found no disability in the case based on the opinion of the defense expert.
ALJ  Denigan
Experts:  Musich, Randolph 

A registered nurse bumped her knee, developed an acute lateral meniscus tear, and underwent a total knee replacement but failed to prove she had any disability flowing from her accident, according to the recent Commission decision, Tillotson v St. Joseph Medical Center, 2010 Mo WCLR Lexis 138. Claimant failed in her proof of disability, even though she established both accident and an acute change in pathology.
Claimant's specific failure of proof arose from lack of expert opinion allocating disability between new and old knee pathology. Claimant's expert related the TKR to the accident. The administrative law judge found claimant's TKR flowed from prior arthritis and not from her acute meniscus tear, and that the TKR would not have occurred but for the prior arthritis. Neither claimant's expert nor any other expert specifically addressed what amount of disability related solely to the new lateral meniscus tear. The administrative law judge acknowledged any allocation of permanent disability for a meniscus tear was "very difficult" to assess, as the entire meniscus was subsequently removed as part of the total knee replacement.

ALJ: Mueller
atty: Gorden, Christiansen
experts: Koprivica
treater: Berghe

By comparison, Florida has an apportionment statute, 440.15(5)(b), that allows the employer to pay only the portion of disability and future medical care associated with the injury, but it requires the employer to show pre-existing conditions flowed from non-industrial conditions.  Staffmark v Merrell, 43 So.3d 792 (Fla. 1st DCA 2010). 

Tuesday, August 3, 2010

Tort cases against co-workers and supervisors


Leading up to the 2005 amendments, Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982), allowed immunity for co-workers without proof of "something more" beyond negligence. Suits against co-employees failed  based on 287.120 unless a co-employee purposefully and dangerously caused or increased a risk of injury. 

Robinson v Hooker, 323 S.W.3d 418  (Mo App. 2010) reversed an order to dismiss a negligence claim filed after a plaintiff settled a worker’s compensation claim for permanent partial disability for loss of vision. A street cleaner lost control of a high pressure hose and struck the plaintiff, causing blindness in the right eye. The court of appeals reversed and remanded the order, and rejected defenses to the tort claim based on worker’s compensation immunity and res judicata.

Hooker  concluded that the 2005 requirements to apply strict construction required a re-evaluation of the defense created by Badami. Section 287.120 extends immunity only to employers, and a co-worker did not meet the definition of "employer" under §287.030.1. There is no immunity unless a co-worker "squarely" falls within the definition of employer. Robinson v. Hooker asserts this interpretation was being "mindful" to "effectuate legislative intent" as reflected in the "plain and ordinary language of the statute" and pursue a long-standing principle to preserve common law rights.

 On August 28, 2012 HB 1540  became effective to put tighter limits on co-employee liability and amended 287.120.1 to allow immunity unless the worker engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

Numerous tort cases continue to arise during the "gap" before the 2012 fix. 


In Parr v Breeden , 2016 MO Lexis 188 (June 7, 2016) the Missouri Supreme Court found that surviving children failed to state a cause of action against co-workers when their father died in a work-related auto accident.

The plaintiff worked for Breeden Transportation.  The worker was involved in multiple accidents in 2006, and two accidents in 2008, the last resulting in a fatality when his vehicle left the road.

The petition alleged that the driver had multiple health conditions including severe heart disease, apnea and it was the employer should have known his health condition posed risks to his capacity to drive safely.

The suit named the company owner, a company dispatcher and the company director of safety. 

"The plaintiffs raise two points: (1) the circuit court erred in granting summary judgment because [ genuine disputes of material fact exist as to the defendants' negligence in that the defendants admitted they had a duty to ensure all of Breeden Transportation's drivers were safe to operate a commercial motor vehicle, the defendants knew or should have known Mr. Parr could not safely operate a commercial motor vehicle, the defendants caused Mr. Parr's death by placing him on the road the night of the fatal accident, and the plaintiffs suffered damage as a result of Mr. Parr's death; and (2) the circuit court erred in entering summary judgment because there was a genuine dispute of material fact as to whether the defendants breached their duties, separate and apart from the employer's nondelegable duties, that arose from federal regulations."

The element at issue in this case is the existence of a duty owed by the defendants to Mr. Parr.

The plaintiff relied upon deposition testimony that employer witnesses acknowledged a duty that their drivers operated safety.

"Here, the plaintiffs' evidence fails to establish that defendants owed Mr. Parr a duty separate and distinct from the employer's nondelegable duty to provide a safe workplace. Accordingly, the plaintiffs cannot establish that the defendants owed Mr. Parr a duty as a matter of law; therefore, the circuit court did not err in entering summary judgment in favor of the defendants."

The court rejected the argument that a breach of a federal rule is sufficient proof of the existence of an independent, personal duty in a negligence action.  The plaintiffs mistakenly construed a federal rule to create an independent duty by the motor carrier to independently investigate the cause of accidents. 

The case arose during a former legislative "gap" in Missouri that permitted co-employee suits based on common law standards. 

The court of appeals affirmed a summary judgment in favor of defendant co-employees and concluded that claimant failed to establish a breach of any duty under either common law or the 'something more' doctrine.

The case involves a fatality of a truck-driver in a 2008 accident and a wrongful death claim brought against three supervisory employees.  The circuit court found there was no genuine issue of material fact that the co-employees owed any duty to the claimant.  The claim alleged negligence and directing claimant to drive a vehicle when reasonably knowing he had a medical condition that might increase the risk of an accident.

The case does not identify that there was a medical condition, but asserts that the co-employees had a duty to inquire if there was a medical condition because the driver had been involved in an accident less than 3 weeks earlier.  At the time of the fatal accident he was performing his regular job duties and had been remained certified as medically fit to drive.

The majority considered an existence of a duty is a question of law.  The court indicated that the "something more" doctrine did not apply at the time of the accident, and the only duty arising under common law when the co-employee's workplace injury is in no way attributable to the employer's breach of its non-delegable duties.  The non-delegable duty to use reasonable care falls within five general categories of 1) the provide a safe workplace 2) to provide safe equipment in the workplace, 3) to warn employees about the existence of dangers of which the employees could not reasonably be expected to be aware 4) to provide a sufficient number to competent fellow employees and 5) to promulgate and enforce rules governing employee conduct for the purpose of enhancing safety.
There was no common law duty for co-employees to protect claimant from himself to determine if he was a danger to himself based on his own health history.   There was no co-employee liability when any breach of duties arose from non-delegable tasks such as providing a safe work place, enforcing its safety rules or providing competent drivers. 

A dissent argued that summary judgment was premature and the case should transfer to the Supreme Court.  It argued the survivors should be provided an opportunity to win or lose their case and the issue of breach of a non-delegable duty was a disputed issue of material fact not a matter of law and that Leeper required pleadings to be read most favorably to the survivors.  It suggested alternate theories of liability such as  negligent hiring, negligent entrustment or respondeat superior. 

The dissent concluded that the "something more" test and common law provided different liabilities and rejected application of the post-reform use of "something more" during the 2005-2012 gap.  It specifically refused to follow Eastern District cases which applied a "refined" something more test:  Amesquita v Gilster-Mary Lee Corp., 408 S.W.3d 293 (Mo. App. 2013).

Both the plaintiffs in Parr and Leeper asserted causes of action under the "something more" doctrine, but both courts indicated the proper claim was a breach of a common law duty.  The majority in Parr still  makes the additional finding that claimant did not make a submissible case under the "something more" doctrine either.  Presumably claimant could have made a submissible comp case, although no one would know from this opinion  

It is not clear  what relevant medical conditions Parr actually had or how they might have been a contributing factor to any of the accidents. 

The argument seems to be the employer might have learned something rather than the employer already knew something.  That is what makes the case distinguishable from the classic negligent entrustment claim of sending someone out in a company truck or vehicle with a clearly recognizable impairment.  Many employers would likely not make any inquiry about general medical conditions simply because their ADA attorneys have told them it is none of their business. 

In  Peters v Wady Indus., 2016 Mo Lexis 189 (June 7, 2016)  addressed an issue of liability in a "gap" case between 2005 reform and the 2012 fix.  Ultimately, the court affirmed a motion to dismiss from  the circuit court and court of appeals that the plaintiff failed to state a claim.  The case involved a stack of construction material (dowel baskets) falling off of a flatbed truck resulting in catastrophic injuries to the plaintiff.  The plaintiff alleged the items were negligently stacked, among other claims. 

Peters filed suit against his supervisor and his employer.  When the court dismissed the suit against the supervisor, the plaintiffs voluntarily dismissed their claim against the employer.  The court of appeals affirmed the dismissal, with one dissent.

The standard of review in a motion to dismiss assumes all allegations to be true and tests the adequacy of the petition to state a claim.  Applicability of worker's compensation is an affirmative defense and not a limitation on the court's jurisdiction. 

This case is important as the court redefines the burden of proof for common law cases (arising before 2012) and the requirement of courts to show "something more" in those cases mistakenly required proof of affirmative acts, which it now concludes was contrary to common law.  The effect, is that an appropriately pled case  likely avoids the procedural defense of a motion to dismiss.   As a practical matter, the number of cases  before 2012 that have not been filed yet may be a small number and the new statutory test (applying essentially the pre-reform standard) will apply.    

Two justices disagreed with departure from the "something more" test that required proof of affirmative action to proceed in tort outside of comp.  The majority noted two cases (an exploding cement truck and a malfunction causing a runaway elevator) to demonstrate liability under the less stringent standard.   

One dissenting justice felt claimant's case should proceed in tort. 

At the court of appeals,   489 S.W.3d 784 (Mo App. 2014)  the court affirmed a dismissal of a negligence claim against the supervisor by the worker and his spouse.  In 2008 a stack of baskets fell on him at a construction site.  The petition alleged the supervisor had been warned about the unsafely stacked baskets yet he allowed unsafe conditions by stacking them too high,  failing to secure them, not providing a proper unloading area among other acts. 

As a matter of law the pleadings failed to state a claim because they did not establish an independent duty. The court noted a statutory gap between 2005 and 2012 which allowed co-employees to maintain suit.  The court noted no cause of action lies unless there is a duty owed independent of the general duty of the employer to provide a safe work place.  In addition, the eastern district requires liability to be based on something more or an affirmative purposeful and dangerous act.    In this case the worker may have shown the supervisor knew of the danger and didn't protect the plaintiff from it but that was inseparable from the non-delegable duty to provide a safe work place.  

As claimant failed to establish the first prong of the case (a breach of a non-delegable duty)  any appeal is not necessary to evaluate the extent of any breach (affirmative v negligent) and how the western and southern districts have found what extent of a breach states a cause of action.

The pleadings allege the worker sustained catastrophic injuries.  In addition the spouse asserted a claim for loss of consortium. 

A dissent transferred the case to the Supreme Court due to conflict in what breach is actionable and concluded  the determination whether there was a breach was a question of fact and that dismissal for failure to state a claim was improper.  It was still the plaintiff's burden to show the employer performed its duties safely and the accident would not have happened but for the supervisor's negligent act or omission. 


In Evans v Ron Wilson and Monte Barrett, No. SD 33209 (Mo. App. 2016) (Sept. 19, 2016), 2016 MO App. Lexis 923, the court of appeals affirmed a summary judgment in favor of a co-worker defendant. The claim alleged negligence when a co-employee drove a forklift and ran over the foot of the plaintiff.  The case is one of multiple recent decisions which addresses when an injured worker in Missouri can sue a co-worker in common law.

Missouri law now bars co-employee liability unless there is proof of affirmative negligent act that purposefully and dangerously caused or increased the risk of injury, as a result of legislative changes in 2012.    For many years co-employees and employers were protected from such suits without proof of “something more” than mere negligence. Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982). Robinson v Hooker, 323 S.W.3d 418  (Mo App. 2010) recognized such claims were allowed after 2005 because of statutory reform which adopted strict construction and did not expressly preserve the defense.  The legislature “fixed” the fix in 2012, but by that point such delays had created a window to allow tort suits.  Numerous appellate decisions this year address accidents caused by co-employees arising in the 2005-2012 gap.

The issue at  summary judgment is whether the pleadings identify a duty separate and distinct from the employer's non-delegable duty to provide a safe workplace.

The Supreme Court addressed the issue in two opinions on June 7, 2016.   In Parr v Breeden, 2016 MO Lexis 188 the Missouri Supreme Court found that surviving children failed to state a cause of action against co-workers when their father died in a work-related auto accident. In  Peters v Wady Indus., 2016 Mo Lexis 189 a stack of dowel baskets fell off of a flatbed truck resulting in catastrophic injuries to the plaintiff.  The plaintiff alleged the items were negligently stacked, among other claims. 

Evans affirmed a summary judgment and noted the allegations failed to establish something more than an alleged failure to fulfill the employer's non-delegable duty to provide a safe workplace.  The court concluded that a simple allegation of negligent driving is not something more because safe driving is an extension of the duty to provide a safe work environment.  The Western district notes that its opinion conflicts with two recent opinions from the Eastern District that allegations of negligent driving was a sufficient basis to reverse a summary judgment: Abbott v Bolton, ED 100773 (Mo App. 2016) (Aug 2 2016), 2016 MO App. Lexis 756 (a co-employee drove over another employee’s foot) and Fowler v Phillips, ED 100801 (Mo. App. 2016), 2016 MO App Lexis 826 (a co-employee hit someone after pulling out of a car wash).  Whether the Supreme Court may ultimately resolve these issues remains to be seen. 


McComb v Gregory Norfus, WD 77761 (Mo App. 2016) 2016 Mo App. Lexis 882  (9/6/2016) involved a wrongful death suit against an employee's supervisor when her spouse worked as a hospital courier and drove off of an icy road in a single car accident.

The court of appeals reversed summary judgment in favor of the defendants and found there was a material issue of facts in dispute whether the supervisor breached a duty of care beyond the non-delegable duty to maintain a safe workplace.

The accident occurred in 2009 when the issue of co-employee liability was in a state of flux from 2005-2012 caused by statutory reform. The decision distinguished itself as an issue regarding the scope of a duty and not whether a duty existed to distinguish Parr v Breeden, 489 S.W.3d 774 (Mo. Banc. 2016).   The court noted there was a foreseeable risk to send couriers into bad weather. The court noted there were issues of fact such the existence of such a policy, whether the defendants followed the policy, and whether actions of the supervisors violated such a policy.

One issue whether summary judgment was appropriate was whether a policy even existed.  The court noted the job description identified some issues related to weather which could suggest the existence of a policy.  The fact that the plaintiff admitted there was no policy was not binding on the issue as the comment occurred during oral argument. and the statement was not dispositive but just added to the weight of the evidence. 



In Williams v Roberts and Holloway, 2017 MO APP. LEXIS 321 (Mo. App. 2017) (4/20/2017)
the court reversed a summary judgment for the defendants.

Claimant was a journeyman mechanic who was injured in January 2012 and his duties involved clearing a "drop zone" where co-employees lowered items by crane.  A 51 pound piece of channel iron came loose and struck him and he asserted the item was not properly secured.  The accident resulted in multiple fractures.  Defendants argued that claimant was negligent walking into the drop zone.  The issues framed were whether the employees properly secured the load, whether they warned the plaintiff they were getting ready to lower the load, and whether they followed proper policies of the employer.  Plaintiff argues it was erroneous to conclude that the defendants did not breach a person duty of care. 

The court noted the record was insufficient to show as a matter of law that the injuries did not arise from a breach of carrying out the details of the work separate and distinct from the employer's duty to provide a safe work place.  It found open-ended disputes if the load was properly secured, whether a tag line was used, whether any warning was appropriate and actions after the line became snagged and compliance with the employer's rules. 

At common law:

" the employer has certain nondelegable duties for which it remains liable, regardless of whether the employer has assigned these duties to an employee. These duties are: (1) the duty to provide a safe workplace; (2) the duty to provide safe appliances, tools, and equipment; (3) the duty to give warning of dangers of which the employee might reasonably be expected to remain in ignorance; (4) the duty to provide a sufficient number of suitable co-employees; and (5) the duty to promulgate and enforce rules for the conduct of employees to ensure the safety of the workplace. "

The court noted both parties did not comply with Rule 74.04 and over-relied upon argument rather than affirmative admissions or denials in the statement of facts. 

In Evans v Ron Wilson and Monte Barrett, 2016 MO APP. LEXIS 510 (Mo. App. 2016) (Sept. 19, 2016) the court of appeals affirmed a summary judgment in favor of a co-worker defendant who allegedly negligently drove a forklift over a rock, causing the load to shift, and ultimately ran over the foot of the plaintiff.  He alleged, among other things, that the co-worker was negligent in operating the forklift.  He did not appeal summary judgment against the supervisor and company president. 

The court affirmed summary judgment or three reasons.  the allegations failed to establish something more than an alleged failure to fulfill the employer's nondelegable duty to provide a safe workplace.  A simple allegation of negligent driving is not something more because safe driving is an extension of the duty to provide a safe work environment.  

The court noted in a footnote  that Fowler v. Phillips, 504 S.W.3d 107 (Mo. App. 2016) and Abbott v Bolton, 500 S.W.3d 288  (MO. App.  2016), do not appear to follow State ex rel Taylor v Wallace, 73 S.W.3d 620 (Mo banc 2002) or Carmen v Wieland, 406 S.W.3d 70 (Mo. App 2013). 

Fowler v Phillips, 504 S.W.3d 107 (Mo App. 2016)  the Eastern District reversed a summary judgment in favor of the defendant.  The case involved an Avis employee driving out of a car wash and striking another employee and allegedly ran a stop sign and failed to yield.  The defendant contested the alleged negligent acts and agreed the action arose out of and in the course of employment.

The court reviewed summary judgment for both claims of negligence and of reckless conduct.  The court found the scope of non-delegable duty limited to those acts specifically directed by the employer or arising from malfunction of employer provided equipment.   The court found the allegations of failing to stop at a stop sign, failing to honk while exiting, making a prohibited left turn without signaling or looking left were actions outside the employer's non-delegable duties. 


In Abbott v  Bolton, 500 S.W.3d 288  (Mo App. 2016) (Aug 2 2016)  the court of appeals reversed a summary judgment on behalf of the defendant.

The defendant argued two issues:  there were material issues of fact in dispute which made summary judgment improper and there was as a matter of law an independent duty owed by the co-employee to support a claim for negligence. 

Both parties worked for the county Dept of Highways and Traffic of the same crew.  In 2010 the plaintiff was standing at a work site when the co-worker was returning to work from lunch and drove over his foot when he misjudged the space between the truck and Abbott's foot.

Both parties denied the act was in the course and scope of employment or that the accident arose from reckless or intentional conduct.  The defendant argued that thee was no personal duty of care owed outside the employer's non-delegable duty to provide a safe workplace. 

The court denied the plaintiff's first argument that there was a material dispute of fact  if they were co-employees or not.  The court found the defendant's denial that he was in the course and scope of employment did not create a dispute of a material fact on that issue.  The court did not consider the material issue of facts in dispute regarding any comparative fault. 

The court agreed with the plaintiff's second argument that there existed a separate independent duty of care separate from the non-delegable duty of the employer to provide a safe work place.  The court found that statutory changes caused by strict construction created a gap for accidents arising between 2005 and 2012 allowed claims for independent breath of care.  The co-employee's liability may arise when negligence falls outside traditional duties owed by the employer such as the duty to provide a safe work place, the duty to provide safe appliances, tools, and equipment, the duty to give warning of the dangers of which the employee might reasonably be expected to remain in ignorance, the duty to provide a sufficient number of suitable co employees and the duty to promulgate and enforce rules for the conduct of employees to ensure the safety of the workplace. 

The court, in an opinion by Judge Gaertner, concluded the pleadings alleged a violation of a duty to drive in a careful and prudent manner which was not a breach within the delineated duties of safety owned by an employer and employee.  The issue is whether Bolton owed Abbott an independent duty of care or whether any duty of care was subsumed within St. Louis County's general duties toward its employees." 

The court later notes whether an independent duty exists is "purely a question of law," citing Peters   and remands the case for further proceedings consistent with Peters.

Other cases have found negligent driving by a co-employee insufficient to show a breach of a duty to maintain a safe work environment.  State ex rel Taylor v Wallace, 73 S.W.3d 620 (Mo banc 2002) and Carman v Wieland, 406 S.W.3d 70 (M. App. 2013).


In Leeper v Asmus  440 S.W.3d  478 (MO. App. 2014),  a  500-pound pipe crushed Leeper's arm.  Asmus operated a drilling rig guiding the pipe.  Leeper alleges Asmus was negligent when he did not check the line was tight before operating the rig resulting in the injuries.  The amended petition alleged there was a specific duty of the operator's job and created a unique hazard which was something more than just creating a safe work environment. 

The court found that as a matter of law the 2005 amendments (until 2012) restored the law to the common law and that an action could proceed if the injuries arose solely from the defendant's negligence.  The court noted Leeper could proceed even though the petition did not allege a breach of a common law duty but alleged a "something more" standard, a standard rejected by the court itself. 

The court concluded that injuries after 2005 accident did not require the co-employee conduct to be outrageous, intentional or reckless which imposed too high of a burden on an injured worker inconsistent with common law, and refuses to follow the "something more" standard adopted by the Eastern District.  The court concludes the rationale to require something more arose in liberal construction to assure a remedy through worker's comp. 

The court concluded assuming if  that the defendant failed to perform his job as instructed then dismissal was premature because the injury flowed from negligence.  "Construed favorably the Leeper, these allegations support a conclusion that a safe drilling rig, safe methods of operation of the drilling rig, and a sufficiently trained operator of the drilling rig, were only made unsafe because Asmus failed to follow specific directions...."  Leeper in many ways is a primer about pleading.    Hansen v Ritter, 375 S.W.3d 201  (Mo App. 2012)  failed  based on pleadings that did not identify a separate duty owed by the defendants independent of the employer. 

The court noted there was an  easier burden to survive a motion to dismiss rather than prevailing on the merits that required proof that the defendant's negligence was the sole cause of the injuries.    The court adopts a balancing test of policy considerations which included   foreseeability, the relationship of the parties, and an obligation to control the activity which presents the danger of the injury, the burden of protecting against it and the consequences of placing the burden on the defendant.


In Hansen v Ritter, 375 S.W.3d 271 (Mo. App. 2012)  a corporate safety manager and operations manager were sued for negligence after an employee fell into a wire-stranding machine resulting in the employee’s death. The court concluded in a narrow ruling that the plaintiffs as a matter of law in this case did not establish a breach of any duty, and affirmed a dismissal on the petition for failure to state a cause of action.

“We need not determine, therefore, the precise contours of the common-law duty co-employees owe to one another.” The court noted it “is unnecessary in deciding the matter before us to definitely determine the precise parameters of a co-employee’s personal duties to a fellow employee sufficient to support an actionable claim of negligence.”

The court noted before Robinson a plaintiff failed to state a cause of action without demonstrating something more, or purposeful, affirmatively dangerous conduct. The court noted that Robinson did not vitiate case law indicating such allegations established a breach of duty. By implication, pleading purposeful affirmative conduct would survive a motion to dismiss based on a de novo standard of review assuming all pleadings to be true. The court suggests there may be a breach of a duty without reaching all of these allegations. The alleged breach not to detect, correct or prevent work practices (causing a guard to give away) simply did not meet the standard in this case. Plaintiff conceded that the duties were not independent of the master-servant relationship and the tasks assumed the safety manager and operations manager were mere “going to work.” The plaintiff failed to establish a recognized duty as a matter of law in a cause of action for negligence.

The court did not disturb the wrongful death count against the machine manufacturer.

The case is important from a pleading issue what to do to survive a motion to dismiss.


The court of appeals reversed a summary judgment on a negligence claim for a worker who fell in a hospital's stair case when the lights were out, the hand rail was removed, and he impaled himself on an exposed hand rail.  Woodall v Christian Hospital Northeast, 473 S.W.3d 689  (Mo. App. 2015) (July 21, 2015). He settled the case in worker's comp against the employer and then went after the landowner.   This opinion was rendered moot by the court on 8/25/2015. 

The case involves a worker for an asbestos abatement company.  CH was preparing the building for demolition and frequently removed and reinstalled the hand rail dozens of times  to remove items from the boiler room.  Appellant went into the basement to figure out why the power went out and then fell.  The court noted it "may be in dispute" whether it was "appropriate" to send the appellant into a dark boiler room to investigate the outage.

Appellant filed a claim under theories of premises liability and general negligence.  The court affirmed the summary judgment claim on the theory of premises liability and noted that the landowner owned no duty to an invitee because it shifted control of the property to the contractor, even though its employees remained on the premises and performed activities unrelated to abatement.  

In the negligence claim, claimant asserted
"general negligence in the handling of a stairway bracket, the presence of an inadequate electrical supply, and the failure to warn Appellant for possible hazards." The court found these issues created disputes of material fact that did not support summary judgment.

J.  Clayton
Atty:  Muchnik, Makepeace


In Southerly v United Fire & Casualty Co. 448 S.W.3d 336  the plaintiff did not prevail in an attempt of equitable garnishment of insurer United Fire for a $4,000,000 judgment involving a suit against several co-workers in a work-place injury.

The insurer defended the claim and stated since the plaintiff was an employee he could not collect both under worker's compensation and under the CGL policy.  Southerly claimed he was an employee in a worker's compensation claim and obtained a $150,000 settlement.  A concurring judge noted that claimant was improperly attempting to "double dip" against multiple policies and estoppel prevented him from arguing inconsistent positions after collecting a prior judgment. 

Claimant contended that he was not excluded by the policy definitions of employee and asserts that he wasn't hired in the open labor market but "furnished" by the recommendation of a co-worker. The court rejected this argument that he was subsequently rehired under different circumstances in which he was not just merely furnished by a referral.  The claimant also unsuccessfully argued that he was an executive officer in his capacity as a manager.  Although he served as a manager he was not a corporate director to fall within the policy exclusion.   


The court of appeals reversed a dismissal of a common law negligence claim against ASC and found the pleadings sufficient to support a duty owed to the plaintiff.  Berliner v Milwaukee Electric Tool, etal, 501 S.W.3D 59   (Mo. App. 2016).

The case involves a death on the job when a worker fell from a 85-foot high platform in Labadie, Missouri.  The plaintiff, the surviving husband, filed a wrongful death suit.  Plaintiff sued Milwaukee, Ameren Service Company (ASC), The court granted a motion to dismiss against individual employees. 

The court noted that despite corporate ties between ASC and Union Electric immunity under worker's compensation law applies only to the immediate employer and not to affiliated parent, subsidiary or sibling corporation.  The plaintiff worked for Union Electric. 

"It is totally incongruous and patently unjust to permit the parent to hide behind the shield of separate corporate identity when advantageous, but to disavow such separateness when it is not."  The court noted that ASC was a separate corporation and misconstrued the nondelegable obligation to provide a safe work place by the employer insulated third parties from liability.  The co-employee defense, similarly,  did not extent to third parties such as ASC which was reportedly hired to oversee safety at Ameren's plant.
The pleadings were  sufficient as alleged to state a cause of action for negligence:

"ASC was responsible for and oversaw the safety at Union Electric’s plant. Its responsibilities included, but were not limited to, inspecting, refurbishing, and maintaining the hammer drill used by Decedent when she fell from Union Electric’s 85-foot-high platform. It was also alleged that the platform itself was subject to maintenance and inspection by ASC, which was tasked with ensuring "that all railings on the platform were safe, free from dangerous conditions, unbent or undamaged, and free from dangerous gaps between such railings."

Thursday, July 15, 2010

Judge bars testimony from ex parte contact

Claimant's direct supervisor was not allowed to testify on behalf of the claimant following ex parte contacts from claimant's counsel to prepare his testimony, in a ruling affirmed by the Commission. The administrative law judge concluded that any contact was not made with "improper" intent. The judge noted: in light of the employer being a governmental entity and the witness no longer being an employee of the employer, it is understandable that the employee’s attorney did not necessarily view the witness as a client of the employer and insurer.

Claimant, 63, received permanent total benefits following a back injury from unloading gravel which required kypoplasty for a burst fracture and resulted in permanent restrictions. The administrative law judge found claimant's testimony credible that claimant's advanced degenerative spinal disease was asymptomatic prior to the accident and claimant now experienced disabling pain that required him to lie down frequently. Claimant had been awarded social security benefits following the 2008 accident.

Lonnie Jones v Laclede County, DOLIR 7-15-10
ALJ Wilson
Atty: Reichert, Weidner, Vessell, Rowe
Treater: Tabb, Harbach
Experts: Bennoch, Eldred, Corsolini, England

Friday, June 25, 2010

Commission reverses award for vision loss

The Commission reversed an award against the second injury fund based on synergistic effect when claimant detached retinas in two separate accidents, finding the claimant failed to prove that disability pre-existing the second accident satisfied threshold levels. The Commission considered three factors important: claimant settled the original case below threshold values at 10%, claimant offered scant medical records, and claimant's expert did not provide a narrative report to explain whether the "whopping rating" of 62% higher than the original settlement improperly included post-accident degeneration. The administrative law judge had awarded benefits, including a substantial loading factor of 60%. Deibel v UPS 7-20-10 (2-1)

ALJ: Vacca
Experts: Pernoud
Atty: Pashos

The commission in a 2-1 decision just reversed an award of disability for blindness, in the 6-24-10 decision, Biondo v Dial Corp. Claimant, 47, sustained blindness in his left eye, which he relates to sudden movements in 2004 while pulling a 150-pound hose in his work as a raw material unloader. The administrative law judge awarded 100% loss and 36 weeks for temporary total disability. The administrative law judge found the accident a “substantial factor” based on testimony from claimant’s expert who attributed claimant’s injury to a valsalva movement placing excess pressure on the eye. The Commission reversed an award of benefits based on its de novo review of credibility of the experts. The Commission found the employer's expert more credible regarding the impact of claimant's hypertension on his retinal hemorrhage and found assumptions by the claimant's doctor that claimant had performed valsalva maneuver prior to the hemorrhage not fully supported in the initial medical records. Claimant had other predisposing risk factors including hypertension and proliferative bilateral diabetic retinopathy.

ALJ: Vacca
Treaters: Territo
Experts: Pernoud, Korn
Atty: Wolfe

Wednesday, May 19, 2010

Death no bar to "accured" benefits

When is a disputed surgery reasonable or unreasonable under worker's compensation if a patient has an existing incurable disease that would typically shorten his life expectancy to a few years? In a recent case affirmed by the Commission a consulting orthopedist flirts with the issue but the ALJ never resolves it because claimant's ALS is diagnosed after his disputed lumbar fusion.

Claimant reported he injured his back in 2002 after lifting 200 pound doors, and never returned to work. After the employer released claimant from care for his "facet syndrome", the claimant proceeded with an unauthorized 360 L5-S1 fusion performed by Dr. Piper in April 2003 for an "annular tear" and "internal disc disruption." The employer weeks before the surgery sent claimant to an orthopedic surgeon who advised against it, and concludedthat it was fraught with problems, and advised claimant for a work-up for CNS problems. Following the 2003 surgery claimant was diagnosed with ALS and died in 2006. The case eventually proceeded to hearing years later in September 2009, when ALJ Landolt awarded $141,877.87 representing the $84,748 in bills for the disputed surgery, 28 weeks TTD, and 30% BAW to the surviving widow. The employer's expert, Dr. Wagner, later declined to testify that the surgery itself was unreasonable, but questioned if ALS had it been diagnosed prior to the surgery if claimant would have been a surgical candidate for a fusion. The case is Adams v McBride & Sons Enterprises, DOLIR 5-13-10.

attorneys: Ann Dalton, Nanci Martin
experts: Dr. Volarich, Dr. Wagner, Dr. Raskas
treater: Dr. Piper
ALJ: Landolt award $141.877.87

Tuesday, February 23, 2010

My IME doctor "assaulted" me!

The plaintiff alleges in 2006 Dr. Rotman examined her in an independent medical exam in conjunction with an auto personal injury claim and states the orthopedist caused myriad injuries by asking plaintiff to move her body in various directions.

The dispute in the case was whether or not plaintiff could proceed in a claim for damages under a theory of intentional assault and battery or was limited to a malpractice claim. Plaintiff asserts that she was not receiving a health care service at the time of an independent exam. Plaintiff alleges an IME was not a medical exam, and that plaintiff could proceed with an assault case and was not precluded by not filing a timely 538.225 affidavit required in malpractice claims. The circuit court dismissed the case due to lack of a timely affidavit, a decision affirmed by the court of appeals. The court noted that an independent medical examination is by definition a health care service. 538.205(5), Jacobs v Wolff, 829 S.W.2d 470 (Mo. App. 1992)

The case is Devitre v Orthopedic Center of St. Louis, No. ED 93366 (Mo. App. 2-23-2010), and should be required reading for any examiner using IME boilerplate disclaimers that they are not providing "treatment" or establishing a patient relationship.

In Fortenberry v Buck, D.O. No. WD 70490 (Mo. App. 3-16-10), the court of appeals reversed a dismissal of a malpractice claim of a plaintiff who asserts a cortisone injection injured his ulnar nerve and rendered him unemployable. The administrative law judge in the compensation case awarded PTD and open medical following the 1997 steroid injection.

Wednesday, January 20, 2010

Commission reverses temporary award for disc replacement

Claimant, 37 hurt her low back from two lifting incidents at a nursing home and administrative law judge Kasten issued a temporary award to provide treatment for a disc replacement, as recommended by claimant's expert Dr. Gornet. The commission reversed and awarded permanent partial disability of 2 1/2% for each incident. The commission found Dr. Gornet less credible as he relied on diagnostic studies performed 3 years after the accident, and he did not fully address the impact of other medical records documenting at times the absence of symptoms. The commission permitted an appeal of a temporary award even though the employer provided medical benefits, noting a tender of medical care was not inconsistent with a later denial of liability. The commission did not reach the issue whether the administrative law judge exceeded his statutory authority name a specific medical provider without a finding that the claimant's health and recovery was endangered. the case is Martin v Mark Twain Care Center, DOLIR 1-19-10. ALJ Kasten In Kaempfer v G.A Rich & Sons, DOLIR 3-22-11, the Commission modified an award and found the ALJ made an "improper" award to designate a specific provider but affirmed an award for future medical care. The claimant fell backwards and was awarded 67 1/2% PPD for his back and neck with an award of total benefits against the Fund. Claimant's previous settlement from an earlier accident involving the brachial plexus and ribs represented about 60% BAW. The Commission found the ALJ improperly excluded claimant's deposition and social security records. Similarly, in Eaton v AT&T, DOLIR 3-30-11, the Commission in a 2-1 decision concluded the ALJ exceeded authority to designate Dr. Schlafly as a treating physician in a temporary award. ALJ Kasten Atty: Meyers, Prosperi Experts: Margolis, Randolph, Chadauri, England Treater: Dr. Park (c4-c7, l3-s1 fusions), Kamath