Tuesday, March 13, 2012

SIF Loses defense that repetitive trauma is not a "subsequent compensable injury"

The Second Injury Fund denied liability on the ground that the 2005 amendments did not permit fund liability when the primary injury was an occupational disease and offered no other evidence.  The claimant settled a carpal tunnel claim against the employer and received a second injury fund award based on 255 weeks of pre-existing disability to the shoulders and back (prior settlements).  Fanny v Ameren UE, 2012 Mo WCLR Lexis 84 (4-12-12).
ALJ  Gorman
Atty:  Dalton
Expert: Volarich

The Second Injury Fund denied liability on a repetitive trauma claim and asserted it was not a subsequent compensable injury under 287.020.3(5) based on the assertion that Fund liability is limited only to accidents and not occupational diseases.  The Commission found that repetitive trauma claims were subsequent compensable injuries to support Second Injury Fund liability.  Section 287.020.3 provided an exception to include occupational disease "as specifically provided" and 287.067 provides when a repetitive trauma may be compensable.  Joplin v Gates Rubber Co., 2012 MO WCLR Lexis 33 (March 8, 2012).
ALJ Murphy 

The Commission rejected an identical argument in Anderson v Anderson, 2012 Mo WCLR Lexis 46  (March 15, 2012), and concluded claimant's bilateral occupational disease to the wrist combined with a prior shoulder injury.  The Commission rejected a similar argument in Kitson v Verizon Communications, 2012 Mo WCLR Lexis 40 (March 8, 2012).

The ALJ rejected a similar argument that fund liability did not attach for occupational-trauma related rotator cuff tears.  Skornia v American Mechanical, 2012 Mo., WCLR Lexis 113 (June 6, 2012).
ALJ Boresi

The Commission rejected a similar argument that liability did not attach for occupational trauma to the elbow.  Keay v Play Power, 2012 Mo WCLR Lexis 122 (June 19, 2012), and found when pre-existing disability did not just involve a single condition involving a major extremity the prior disabilities could be combined. 
ALJ  Kasten
Atty:  Seufert, Johnson
Experts:  Berkin