Monday, February 16, 2015

Commission won't lift under corporate veil

Claimant worked as a janitor for University of Missouri and  hurt his right shoulder swinging a mop and ultimately asserted he was unemployable in the open labor market. Marshall v Job Finders, etal, 2015 Mo WCLR Lexis 14 (Feb. 10, 2015). The Commission affirmed the award with additional findings related temporary agency, Job Finders, used by the university.

The ALJ found the temporary agency employed more than 200 people  and operated at the time of the accident without insurance and found the owner  (Williams) personally liable for worker's compensation benefits.  The employer had not answered a claim  for about two years and its corporate name varied slightly from the pled name.  Job Finders  did not file a timely application for review to the Commission either.

The ALJ allowed found both the temporary agency and the university were employers and liable under the statute. 

The Commission concluded its review was not limited to issues raised in applications as long as the parties had due process and additional time to address other issues.  The Commission noted in order to find an owner responsible that the owner needs to be named as a party in the original claim and the ALJ violated due process by asserted liability against the uninsured owner  It further noted that under strict construction required express finding the person is either an employer or an insurer and did expressly allow piercing the corporate veil. 

The Commission made a finding to pierce the corporate veil in   Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012).

ALJ  Ruth
Atty:  Hines, Murphy

Thursday, February 12, 2015

Absence of treatment weakens knee claim

A 55 year worker alleges he is totally disabled as a result of alleged injuries to his back and his knee.  Pannell v Mo Dept of Corrections, 2015 Mo WCLR Lexis 9 (Feb. 5, 2015).  The Commission affirms an award of partial disability. 

Claimant was a corrections officer who 'did the splits' when he fell and hurt his back.  He had back surgery. At some point after the back surgery his records document knee symptoms.  His expert concluded he would need a total knee because he 'made symptomatic' an arthritic knee.  His vocational expert indicated he was unemployable in light of his prior medical conditions and what he regarded as new injuries to the back and knee.  A surgeon indicated that claimant's knee may have become more symptomatic because of immobilization during the back surgery. 

The ALJ found no evidence of a new knee injury, no new structural change, no contemporaneous treating records, and no mechanism at the time of the accident consistent with a knee injury.  A dissent found claimant PTD even without consideration of the knee as a Fund combo and indicated:  "It appears to me that the Commission majority, while sympathetic to the plight of this seriously disabled individual, is operating under the mistaken impression that expert testimony is needed to establish that employee is permanently and totally disabled even if his left knee complaints are set aside. I disagree with such a proposition because, as I have demonstrated, it finds no support in the Missouri Workers' Compensation Law."

ALJ:  Fisher
Atty:  Van Camp, Edelman, Mueller
Experts: Stuckmeyer, Marberry, Gross, England