Tuesday, June 14, 2011

287.140: Future treatment "as may reasonably be required"

The problem:  Claimant has a knee injury at work but a menisectomy won't fix it because of arthritis.  Does the employer owe for the more complicated surgery of a TKR?  The Western District now says it does.  The case is Tillotson v St. Joseph Medical Center, WD 72948 (Mo. App. 6-14-2011). 

Claimant injured her knee when she lost her balance while moving a patient and tore her meniscus. The torn meniscus and  degenerative changes  both contributed to her pain and symptoms.  The doctors agreed that claimant was not a candidate for an arthroscopy because of arthritis, and only a knee replacement would resolve her symptoms.  The employer's expert concluded that the prevailing reason for the knee replacement flowed from her arthritis, and not the work injury.  Claimant underwent a total knee replacement.  Claimant returned to her regular job duties as a registered nurse for about 10 months after her surgery and retired.   Claimant's expert concluded the accident caused the tear and caused the arthritis to progress.

The Division found that the accident was the prevailing factor in causing an acute lateral mensicus injury.   The Commission found that Dr. Koprivica's causation opinions were less credible, noting the other experts were board certified and had practices centered on treating patients.  The Commission noted that he was a well-qualified rating doctor.  The Commission denied any claim for medical costs, TTD, future medical or PPD. 

The Court of Appeals reversed and concluded that the Commission applied the wrong standard and a heightened burden of "prevailing factor" in 287.120.1 to interpret the requirements to provide medical care under 287.140.1, adopting the opinion of the dissenting commissioner. The parties agreed that the accident was the prevailing factor in the meniscus tear. The proper standard was whether the disputed treatment (TKR) was "reasonably required", not whether it was the "prevailing" factor.  No expert indicated that it was not reasonably required, and the employer conceded such treatment was reasonable.   The court noted as long as some portion of the treatment flowed from the accident, it is irrelevant whether such treatment also alleviates pre-existing conditions such as arthritis.  No medical expert disputed that a total knee was the only effective available means to cure or relieve the effects of claimant's torn meniscus. 

In Gordon v City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008) the Eastern District found claimant had failed to prove injury when a shoulder surgery identified no acute changes.  The Western District concludes that Gordon did not involve construction of 287.140.1 but was an issue whether a compensable injury occurred.  The court in Gordon, however,  framed the issue whether the accident was the prevailing factor in causing claimant's need for shoulder surgery.

The court remanded the case for a determination of disability.  Claimant's expert  Dr. Koprivica assigned 50% but the Commission rejected his opinion because he did not allocate disability from the meniscus tear and total knee replacement.  No other doctors furnished any PPD opinion.  The court of appeals concluded the disabilities "coalesce" and apportionment was not required.  The court concluded claimant established future medical care based on the uncontroverted opinion of Dr. Koprivica when other experts were silent on the subject whether or not future care was  indicated or not.

The Tillotson case is factually similar to an earlier western district case, Conrad v Jack Cooper Transport, 273 S.W.3d 49 (Mo. App. 2008) in a pre-reform case.  "Conrad had a pre-existing condition, which is the primary reason he needs a future knee replacement, the undisputed evidence also establishes that, at the very least, his work related injury aggravated his pre-existing condition to the point that he will need a future knee replacement. Because Conrad's work related injury aggravated his pre-existing condition to the point that he will need future treatment, his future treatment is compensable under § 287.140.1."  The court in Tillotson noted statutory reform did not change 287.140.1.

Tillotson shifts the fight  to 287.020.3 and whether the accident was the most important factor to cause both the medical condition and disability and does not disturb defenses when there is evidence that an accident did not reasonably cause any need for a disputed surgery.   The implications of the decision may have long term exposure for any arthritic employee applying  the unfortunate adage :  "You break it, you buy it."

Experts:  Koprivica
Treaters:  Van den Berghe

The Commission awarded future medical to a claimant who injured his neck working in a psychiatric unit and underwent a fusion, despite contrary evidence from an orthopedic surgeon that no further treatment was required.  The ALJ found a specific need for prescription care.  Claimant underwent a second surgery to the neck following a car accident.  Harmon v Research Psychiatric Center, 2014 Mo WCLR Lexis 44 (March 28, 2014).
ALJ:  McKeon
Atty:  Slocum
Experts:  Koprivica, Clymer

The Commission modified an award for future medical to include pain management, but reversed an award to include total knee replacement. Claimant prior to the accident was told he would need a knee replacement, and alleged he felt he needed it sooner because of the accident. The Commission in a separate 2-1 award found that the employer was not responsible for medical when an accident merely accelerated the time employee would agree to have a total knee replacement, as the need for treatment itself did not flow from the accident. The Commission awarded Dr. Volarich's rating when the employer offered no evidence on PPD. The award of the ALJ is not attached to the decision. Shelton v Levy Restaurant, DOLIR 5-25-11.  affirmed without separate opinion, 2012 Mo. App. Lexis 50, ED 96886 (Mo. App. 1-17-2012). 

ALJ: Denigan
Experts: Anderson, Kramer, Ralph, Volarich

The Commission awarded 10% PPD but denied future medical involving a back injury when claimant had a 5 year history of recurring back pain.  The ALJ noted an acute onset of symptoms although the defense expert could find no basis on comparing MRIs to explain an acute change.  Simpson v Lyon Sheet Metal, 2012 Mo WCLR Lexis 190 (Nov. 9, 2012)
Atty:  Christianson
Experts:  Volarich, Bernardi
Tx  Crane

Adjacent disc
The claimant is entitled to more treatment at levels adjacent to an operated disc, according to Commission in a 2-1 decision which reversed a denial by the ALJ.  Mueller v. Noranda Aluminum, 2013 Mo WCLR  Lexis 144 (August 8, 2013).

This case begins more than 10 years ago in January 2003 when claimant lost control of a 90-pound block and hurt his back.  Dr. Park performed L5-S1 fusion  in 2003.  His condition worsened after the surgery with chronic pain, radiculopathy and sexual dysfunction.  Claimant underwent a second surgery to remove hardware, his condition did not improve, and he was admitted to a psychiatric ward. He received a spinal cord stimulator in 2005 and his doctor concluded he was unemployable.  Dr. Coyle in 2010 removed the spinal cord stimulator and found claimant's findings contradictory.  In 2010 claimant received injections at other disc levels.  The employer cut off medical benefits, after paying more than $475,000 alone in medical, based on expert opinion that the broadening pain complaints at L3-4 and L4-5  more likely flowed from degenerative aging.  The Commission disagreed:  "We adopt Dr. Smith's opinion (and so find) that the work injury and fusion at L5-S1 put stress on the adjacent levels of employee's spine and caused the symptomatic degenerative pathology at L3-4 and L4-5."

The Commission further modified a 35% PPD award against the employer to an award of permanent total disability to the 59-year old claimant.  A treating surgeon reviewed surveillance and concluded:  "I would be surprised if anybody would look at those films and say this is somebody who is disabled".  A majority of the commission noted the tapes were not persuasive as the employer had obtained days of footage with nothing persuasive.   310 hours of surveillance were condensed for the hearing.

ALJ  Tilley
Atty  Padberg, Rost
Experts:  Volarich, Cantrell, Coyle

Aqua therapy

Claimant failed to establish that aqua therapy was reasonably required based on 4-year old medical report when claimant no longer used medications or clarified the  current symptoms supported the prior recommendation.  Smith v Roberts Dairy Co., 2014 MO WCLR Lexis 81 (June 13, 2014), affirmed a denial of future medical benefits. 
ALJ  Siedlik
Experts:  Koprivica, Drieling

Bill for cardiac workup

This is a  fight about who pays a large hospital bill.  In Gonzales v Butterball, SD 22369 (Mo App. 2-11-2015), 2015 Mo App. Lexis 139;  the worker claimed he had chest pain and was taken by ambulance from work to a hospital in Carthage and then transferred to a hospital in Joplin where he underwent a cardiac cath. 

The Commission awarded benefits, and the court of appeals affirmed, based on expert testimony that bills totally nearly $20,000 were necessary and reasonable to treat his work injury from lifting a heavy turkey.   The employer argued there was no medical evidence linking his treatment to any work injury and that he never had a work injury nor provided any timely written notice of an accident. 

Claimant did not have any work-related cardiac condition from lifting a turkey and that the accident only strained a chest muscle which produced no permanent disability.  The court of appeals concluded it was "not unreasonable" for the hospital to perform tests to rule out cardiac pain  in "no doubt in an effort to mitigate the potentially fatal consequences of such a possible ailment"  while the medical providers waited for an interpreter.

The employer has a statutory obligation to cure or relieve the effects of work-related injuries.  In this case it appears the finding of a relationship between the symptoms and the reasonableness of medical treatment was not controverted by other medical evidence as the only expert identified is claimant's expert.  The suggestion raised in the appeal is that the treating medical records may have been silent as to any relationship or specific history.   The opinion highlights it is reasonable to perform a cardiac work-up for a worker with chest pain and the obligation appears independent of the determination whether there was any permanent work-related cardiac condition that needed any "cure" or "relief". The claimant's entire course of medical treatment was deemed reasonable to rule out an acute cardiac event which never existed.

The court rejected the employer's written notice defense and found there was a lack of prejudice as the employer's own representative called an ambulance and had actual knowledge of the incident. 

The court further criticized the employer's argument regarding sufficiency of evidence that did not comply with its earlier 4-step model and identify by not fully identifying the supporting evidence or the credibility determination.  The court identified the four step as: 

"1. Identify a factual proposition needed to sustain the result;

2. Marshal all record evidence supporting that proposition;

3. Marshal contrary evidence of record, subject to the factfinder’s credibility determinations, explicit or implicit; and6

4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition. "

The court of appeals agreed that the ALJ erred to award TTD benefits based on medical discharge instructions to take off a week when claimant  did not miss any time from work and conceded the error in his brief. 
The Commission opinion provides some further details.  In the  case, 2014 MO WCLR Lexis 29, ALJ Fisher noted claimant had lifted an 80 pound turkey in June 26, 2009 and had immediate chest pain.  The 66 year old claimant who did not speak English and had a 3rd grade education reported a second accident in August 2009 and was deemed totally disabled as a result of a crush injury to the dominant hand resulting in disuse atrophy or RSD.   Butterball fired him a few months after the second accident

Thursday, June 9, 2011


Employer criticized for unsupported argument
The Commission awarded the ratings of claimant's expert in a slip and fall parking lot case which included a trimalleolar fracture, a SI joint strain and a "possible" meniscus tear.  The Commission criticized the employer for advancing legal arguments which its counsel conceded were not supported by the record and making "personal attacks" on the ALJ.  A dissent noted the employer demonstrated a "lack of candor toward this tribunal to be emblematic of employer's overall approach to this case" including not responding to requests for treatment.   Whorton v Silgan Container, 2014 Mo WCLR Lexis 97 (Aug 1, 2014).
ALJ  Rebman
Atty:  McNamara, Billam
Experts:  Kneidel, Clymer

Confusing standard of review
The Court found the award by the Commission that affirmed PTD against the Fund did not warrant de novo review because the SIF did not invoke a question of law instead of a battle of credibility of the experts even though they 'packaged' their appeal to suggest otherwise.  The court identified evidence that the commission found  partial disability from the last accident alone, noting among other evidence that claimant before the accident complained regularly about his symptoms to a coworker, was "short-tempered" and visited a chiropractor regularly.  Brandenburg v Treasurer of the state of Mo, No. SD 32849 (Mo. App.  4-18-2014). 

Preserving an issue on appeal
The court of appeals sharply criticized the second injury fund because it barely complied with rules on appeal to state an alleged error with "specificity,"  its appeal was not a model of clarity, and it barely satisfied the statutory requirements  in the "thinnest way" possible.  Claimant  objected to the Fund's appeal on lack of "jurisdiction" but had not raised the issue in a motion to dismiss the application.  The court  distinguished between whether there was jurisdiction (based on the timeliness of the appeal) and authority (based on preserving the alleged error).   The court did not adopt the argument that the Fund had taken inconsistent positions and was estopped by alleging claimant was not PTD originally and later blaming any PTD on the last accident alone.  Payne v Treasurer of the State of MO, 2014 MO. App. Lexis 35 (January 14, 2014). 

Appeal to commission that ALJ is not impartial
The Commission rejected the employer's appeal that the ALJ Meiner adopted a proposal from claimant's counsel and was not impartial. Courtney v Clay County Health System, 2013 Mo WCLR Lexis 222 (Dec. 11, 2013).  The Commission added additional findings that claimant's testimony was consistent with her medical records and rejected contrary testimony of two witnesses:  "employer/insurer points to the seemingly crystal clear memories of two co-workers who purport to have mentally processed and stored minute details of what the co-workers describe as a non-event. Experience tells us that individuals seldom recall insignificant events in such great detail."
Atty: Kelly, Richerson

Appeal to Commission to add social security addendum
 Zorich v Anheuser Busch, DOLIR 3-27-2013.

Lack of clarity in claimant's brief did not warrant dismissal
The court of appeals declined to dismiss an appeal by a claimant even though the brief is not a "model of clarity" and allegedly violated Rule 84.04(d)(2).  Dillon v Archetectual Materials Co., SD 31908; 2013 MO App. Lexis 264 (March 4, 2013).

Employer criticized for  poorly written brief
The employer disputed liability for PTD benefits for a worker who reports he has to rest 2-3 times a day due to unresolved pain after a back surgery.  Claimant's expert contended he was not a candidate for rehabilitaton due to chronic pain and reactive depression.  The employer relied upon a FCE releasing claimant to medium work and a records review from a vocational expert who concluded claimant could work.   The court of appeals affirmed the PTD award and criticized the employer's brief for poor organization, citing irrelevant authority and citing errors which were not preserved for appeal regarding  admission of testimony of an expert with limited credentials.  The court considered the argument without merit that limitations from claimant's age or education shielded the employer from liability for the 'last accident alone'.  Grauberger v Atlas Van Lines,  2013 Mo App. Lexis 265.
Experts:  Russell, Bennoch, Eldred

SIF Appeal criticized for errors and omissions
The second injury fund brief failed to comply with briefing rules, does not contain a proper statement of facts, distorts the record and mischaracterizes testimony.  The Commission affirms a finding that the 57 year old claimant is a PTD combo.  He had incurred more than 1/4 million in medical charges for multiple surgeries.  Claimant asserts that he is unemployable due to the last injury alone, contrary to the opinion of his own experts.   Wheat v State of Mo., 3-1-2013.
Atty  Van Camp , Thudium, Nelson
ALJ Zerrer
Experts:  Volarich, Eldrid

Application of review limits issues in dispute
The party waived an claim for medical bills when the issue was not preserved on the application for review.  Abt v Miss. Lime Co., 2013 MO WCLR 51 (3-6-13)   The Commission "re-considered" the evidence on remand and concurred claimant continued to fail to prove PTD despite supplemental medical reports from his expert supporting the claim. 

Failure to object to evidence waives error
The failure to object to the omission of the CV of the claimant's expert did not preverse the objection that claimant failed to produce a complete medical report.  Claimant attempted to supplement the record with the CV after the record closed.   Allgier v Claru Deville Healthcare, 2013 MO WCLR Lexis 32.

No error based on ineffective assistance of counsel
Claimant failed to prove his bilateral hip surgeries as a result of avascular necrosis flowed from activities at work moving 300 pounds of material, when his treating surgeon testified that's not "how it works" and had more knowledge of claimant's symptoms of prior problems. Claimant stated he woke up the next day with pain. Claimant appealed alleging ineffective assistance of counsel, and had attempted to rely upon the opinion of his expert, a neurologist, and research from Wickipedia. Claimant failed to preserve as error when no parties appeared in response to subpoena. The case is Hayden v Ameriwood Industries, Mo WCLR Lexis 115. 
ALJ Kohner
Experts: Cohen
Treaters: Albus

Failure to explain error. 
Claimant alleges the Commission wrongfully denied her benefits when she was walking down the hall when her knee popped out of place, and that her case was distinguishable from Miller v Mo. Highway and Transportation. The court concluded claimant's case may be distinguishable, but found under its limited standard of review sufficient competent evidence to support the denial even if claimant had offered some evidence to contradict the factual finding. Claimant failed to explain why she believed there was not competent evidence to support the decision.  Bailey v Phelps County Regional Medical Center, 328 S.W.3d  770 (Mo. App SD 2010)
Atty: Logan, Beekley, McChesney
Judge: Rahmeyer

No proof that Commission abused its power dismissing appeal
Claimant offered no proof that the Commission abused its power dismissing an appeal, or even preserved the error, in an appeal from a slip and fall on a sidewalk case that the Court describes as indecipherable. Dickens v Hannah's Enterprises, 360 S.W.3d 810 (Mo. App. SD 2012),  2012 Mo. App. Lexis 100
Atty: Easter, Musick

Strict construction -  no  separate credibility finding required
The Commission reversed an award of disability and concluded that claimant failed to prove that his cervical disc surgery or undiagnosed symptoms of impaired ability to speak, hear or talk flowed from lifting a box or working 13 years as a library assistant due to inconsistent medical histories. The Court of Appeals rejected the legal argument that strict construction prevented the Commission from denying the claim and reversing a credibility finding without a separate hearing, a position established under the former liberal construction standards since 1931. Snyder v Consolidated Library District No. 3, 306 S.W.3d 133 (Mo. App WD 2010)

Penalties for appeal
The western court of appeals  awarded $81,609 in attorney’s fees for making a constitutional challenge that the employer had a right to appeal a temporary award, contrary to a state rule and unfavorable precedent.  Motor Control Specialties, Inc. And the Ohio Casualty Ins. Co. v. Labor and Industrial Relations Commission, State of Mo., Stephen M. Petelik, 323 S.W3d  843 (Mo. App. 2010) The Commission in 2008 sanctioned the employer $228,000 for not complying with a temporary award.

Petelik reached the court of appeals 3 times since 2006. The court originally dismissed the appeal in 2006 due to lack of jurisdiction because the award was not final and the employer was not denying all liability. The employer sought a declaratory judgment that a state rule limiting appeals until a “final” award has been entered is unconstitutional. The court of appeals in 2008 reversed a dismissal of a declaratory judgment. The employer appealed a third time in 2010 when the trial court found the state rule limiting appeals constitutional and awarded attorney’s fees.

The case involved a 2003 back injury, in which the 41-year old claimant was found in a final 2008 award to be permanently and totally disabled for low back syndrome following a fusion. The employer did not dispute accident and had made nominal medical payments, but disputed causation based on late notice and belated symptoms until claimant went on a fishing trip several days later. The employer waived defenses to any factual claims in the petition as a result of a late answer. The administrative law judge in the final award opined the employer’s defenses were questionable, but not unreasonable, and did not awarded attorney’s fees. The Division doubled an award for non-compliance of the original temporary award ordering benefits and medical treatment, resulting in a final award of permanent total at $388.78 per week for life, future medical, $457,845 of past accrued benefits, including about 238 weeks of TTD and $272,000 in medical and penalties. Claimant went into bankruptcy following the accident, and obtained a two-level fusion through his wife’s insurance.

The court of appeals affirmed the denial of declaratory judgment; based on de novo review the trial court did not misapply the law. The employer has no constitutional right for review of intermediate decision making, and the rule did not thwart judicial review of a final decision.

The employer argued that the statute to allow review of “any” awards conflicted with a rule limiting review only of final awards. The court construed legislative intent through other provisions to distinguish between final and temporary awards. The court noted that §287.490 only provided review of “final awards” to the court of appeals, and it was “absurd” to allow review of temporary awards to the Commission and not to the court of appeals. The court noted the statute distinguished when an ALJ could modify a temporary or final award.
The trial court did not exceed its mandate to award attorney’s fees, when the mandate was a “general” mandate. The award of attorney’s fees fell within an exception to the general American rule based on the collateral litigation exception. Judge Newton considered the “equities” between the parties supported the award of attorney’s fees, the employer/insurer was “well-funded” and the claimant was not; the employer breached a statutory duty and “reneged” to pay an injured worker who receives an award; and the employer pursued injunctive relief instead of complying with the temporary award. Claimant was deemed a “prevailing party” as the employer originally named him as a party, but then dismissed claimant from the appeal.
ALJ: Landolt, Wenman
Attorneys: Leahy, Layton, Brown, Morgan, McClitis
Experts: Curylo, Poetz

Claimant, 37, alleges he developed reactive airway disease from ammonia fumes while working in old warehouses and from a sudden "burst" exposure in 2008Fall v Matt Miller, 2014 Mo WCLR Lexis 37, (March 17, 2014)

Claimant underwent testing suggesting reactive airway dysfunction syndrome.  The treating physician did not provide a causation opinion.    Dr. Koprivica indicated that claimant's exposure was a plausible explanation for his symptoms.  The employer offered no medical opinion, although it obtained a medical exam but never produced the report.    The ALJ found the employer's chemical engineering expert relied upon inaccurate assumptions regarding the remediation process with water instead of a vacuum device. 

The Commission reversed a denial of fees requested by the claimant and awarded $1200 for the cost of the appeal based on a rate of $200 an hour.  It noted the brief "does not raise an argument premised on any evidence in the record or supported by any legal authority. In the Motion, employee argues that employer ignores controlling case law authority as to the issue of notice."  It notes the  "offense is egregious. In its brief and at oral argument in this matter, employer failed to advance a single colorable argument that would support our disturbing the administrative law judge's award in any  way. Employer's counsel conceded that employer did not provide any expert medical testimony to rebut that advanced by employee, but argued that the issue in this case is whether the Commission can rely on "pure opinion" evidence in resolving issues of medical causation. We are perplexed by this statement, as it seems to ignore fifty years of Missouri case law...."

ALJ Wilson
Atty: Alberhasky, Wendler
Experts:  Koprivica

Illinois mail box rule rejected or appeals to circuit court.  
Appealing a decision of the commission to the circuit court was out of time when the circuit clerk file stamped the documents 24 days later because the documents were not "within 20 days of the receipt of notice of the decision", rejecting application of the mailbox rule.  As 19(f)(1) did not create an express exception for the mailbox rule, the circuit court lacked jurisdiction.  A dissent noted this was inconsistent as the mailbox rule was applied when appealing a decision of the arbitrator or the circuit court.  Gruszecka v The Illinois Workers' Compensation Commission, etal, 2012 Ill. App 2d  Lexis 107.

The western court of appeals strictly enforces a rule that requires a party to state specifically what is wrong with an award on an appeal to the Commission, shutting down the employer's right to contest an award of permanent and total disability benefits, medical charges and costs, in the recent case of Jones v Lico Steel, No. WD69637, 280 S.W.3d 713  ( Mo. Ct. App. 2009).

In the case, the Commission dismissed an appeal where the employer argued that the award was "contrary to medical and expert evidence." The Missouri rule 3.030 requires a party to state any points of error with specificity and not to merely state the findings and conclusions are not supported by the evidence. The Eastern District had liberally allowed an appeal to go forward with similar allegations in Isgriggs v. Pacer Industries, 869 S.W.2d 295, 296 (Mo. App. E.D. 1994) The Western District in Jones found the argument that the decision was not supported by the medical evidence violated the rule to argue that the decision was not supported by the evidence when most of the evidence in the case was medical evidence.

In Jones, Judge Smart in a concurring opinion suggested rigorous enforcement of the rule may create no prejudice when a party can provide further specificity in oral arguments or by filing a brief with the Commission but noted the public policy to avoid meritless appeals and

"is to deter employers/insurers from petitioning for review merely for purposes of delay or negotiation when the employer/insurer has no good faith opinion that grounds of appeal exist. In such a case, the employer/insurer may simply hope to later scan the transcript to find something to argue in order to delay the ultimate resolution, in hope that the claimant is under such financial distress that the claimant allow a significant discount in the award just to avoid the delay of an appeal."  The award of costs in the case suggests possible issues regarding the merits of the employer's earlier defenses. The court of appeals could have clearly awarded further costs if it considered an appeal frivilous without the draconian measure of shutting down an opportunity for review of a permanent total award.

This case is a clear warning to employers to state specifically what is wrong with a decision early in the appeal, and to demand similar strict compliance when an employee's sloppy applications for review lack specific details.

Friday, June 3, 2011

Employer/employee status

Insufficient number of employees
The Commission affirmed a denial of benefits from a slip and fall noting the uninsured employer did not have five or more employees subject to the Act.  Burton v Burton, 2014 Mo WCLR Lexis 38 (March 20, 2104). 

Exercising control
Claimant  ran his own lawn care business but periodically  performed light and sound work for his former employer, a nightclub.  He hurt his foot on elevated steps leading up to a cage for a mixed martial arts fight,  and the nightclub disputed about $28,000 in medical bills and contended that he was an independent contractor.   The Commission affirmed a finding of employment, noting that claimant's election to use a 1099 was not determinative and analyzed unrebutted testimony describing the working relationship to establish the claimant was an employee because the nightclub exercised control regarding which songs to play, the volume of the songs, and the lighting even though he performed tasks generally without supervision.   Cutsinger v Area 151 Nightclub, 3-14-2013.
ALJ  Mahon
Atty:  Korte

Uninsured trolley owner exercising control
Claimant  operated a trolley and was struck by a hit-and-run drunk driver.  The year before the accident the defendant company had declared its employees would be regarded as independent contractors to save money.  The ALJ found the employer maintained control by designating the route, the hours of operation, and where to fuel the vehicles.  The ALJ indicated there were many "legitimate" questions about the relationship of the accident and shoulder surgery 3 years later, but the employer presented no medical evidence to challenge claimant's expert, and the ALJ ordered 10% body, 40% of the shoulder, and ordered the second injury fund to pay nearly $160,000 in medical bills for shoulder surgery with complications of MRSA.  A dissent would have awarded additional interest on the unpaid medical bills.  Harrah v Tour St. Louis, 2013 Mo. WCLR Lexis 115 (July 2, 2013).
ALJ  Boresi
Atty:  Christianson

Insufficient number of employees
Claimant failed to prove defendant was subject to the Act, nor did he identify a statutory basis to "pierce the corporate veil."  Lowe v Kelly Cattle Co., Inc., 2012 Mo WCLR Lexis 123 (June 19, 2012).
ALJ:  Wilson
Atty:  Alberhasty, Powell, Elliott
Experts:  Swiam, Nogalski

The Commission in a case of first impression decision concluded a prospective juror who fell on a parking lot before reporting to jury duty was an employee entitled to benefits under the Act. Claimant worked as an insurance agent but fell while reporting to jury duty. ALJ Wilson concluded claimant did not have any contract of employment but was acting under "appointment" to discharge city services, he was in a position of trust, and the city potentially exercised control over his activities. Claimant was sent home and never served when he reported the morning that he fell, and never received pay for reporting as a juror. ALJ Wilson in the temporary award deferred any decision to allow parties to brief the impact of the Pile decision whether a fall in a parking lot was compensable or not. Roemisch v Green County, DOLIR 4-14-11.
 ALJ Wilson Atty Mills, Vessell

Mail Carrier
A letter carrier failed in a pro se claim against the Second Injury Fund alleging permanent total benefits from post traumatic stress disorder, but failed to show he was an employee covered under the Act as he was a federal employee and 287.110 excluded coverage except for cases covered by "federal law." Claimant refused to identify at hearing the issues in dispute, and relied entirely upon a meandering affidavit he prepared explaining why he felt he was disabled and unfairly treated. Hughes v United States Postal Service, DOLIR 12-7-10.

ALJ Carlisle
Atty: pro se, Schulte

Professional Athlete

Claimant is a professional athlete who sustained back and hip injuries in a scrimmage and was awarded $30,767 in disability benefits with open medical related to the 2002 accident. The Commission modified the award and found the employer was entitled to a credit for $105,667 in medical benefits paid pursuant to 287.270 and should be applied against future medical. The case is McClellon v Kansas City Chiefs, DOLIR 3-29-11. The employer had paid over $200,000 in benefits for medical and lost wages. Claimant underwent two surgeries and stated he sustained a career-ending injury.
 ALJ Meiners
Atty Round
Treater: Phillipon

Independent contractor

A pro se claimant failed to prove he was an employee under the act to qualify for benefits against the second injury fund. Claimant signed a document indicating he was an independent contractor, exercised control how he performed the work, and provided his own equipment. The "employer" had settled the case. Thompson v Corporate Transit of America, 2011 MOWCLR LEXIS 221 (Nov. 8, 2011).

Claimant worked for the employer for 6-8 years driving a truck and then entered an agreement to purchase the truck, pay his own expenses, receive a higher pay rate and reclassify himself as an independent contractor. The employer asserted that this agreement under claimant’s "own free will" precluded benefits for permanent and total disability following an 2003 injury when a keg fell on him. The case is Rader v Werner Enterprises, DOLIR 10-29-10.  affirmed   2012 Mo. App. Lexis 24  ED 95905  (Jan. 10, 2012)

Whether a claimant is an employee depends whether an employer has the right to control the means and manner of service. An employment contract is only one of eight factors to consider, and classification in a contract as an independent contractor is not conclusive. The Commission examined the parties actual practices and concluded that Werner continued to control claimant’s activities after the agreement.

The Commission further rejected the defense under 287.020.1 that claimant was not an employee because he was an "owner operator", noting the employer did not establish ownership of the truck because of inconclusive evidence of an attempted conveyance. Werner’s counsel testified that a certificate of title proved ownership. Portions of the title transfer remained incomplete such as missing a date or signature of the claimant. The agreement further limited claimant’s capacity to use or convey the trailer.

The employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits. The employer had previously conceded employee status for years in various "signings."
ALJ Lane
Atty: Thurmer, Evans, Barnard
Experts: Volarich, England
Treaters: Esses, Lloyd, Hackbarth