Denial against SIF supported by insufficient expert opinion on synergy

The Commission affirms a denial of compensation benefits against the Second Injury Fund  in part based on a failure of proof of a synergistic effect between a left shoulder injury and prior loss of sight of the left eye. 





Pierson v The Boeing Company (SIF only)
2018 MO WCLR LEXIS 248
12-0982146,    DOLIR 11/28/2018.

Claimant had established synergistic effect between his neck and eye and finds insufficient medical testimony that there might be "more" synergy involving the shoulder and eye.  Claimant appeals.

The commission noted that 287.190.2 allow a presumption of continued disability only when the prior disability involved the same member or part of the body. 

The commission noted the doctrine of collateral estoppel did not apply in this case against the Fund from disputing the extent of prior disability because the amount of disability existing at the time of the last injury was not litigated in the earlier case.  The prior case adjudicated a rating of 35%, although the present case found 25% to be pre-existing as a result of a two level spinal surgery. Claimant asserts the synergy level of 30% in the prior case should be presumed to continue under collateral estoppel, a point the commission did not accept as the prior case addressed synergy between the neck and the eye instead of the shoulder and the eye.

The Commission did not address the issue of res judicata. 

The Commission did not address the SIF argument that it had already paid for synergistic effect on the prior eye in one case and was not mandated to pay a second time against a different body part.  The Commission noted the SIF argument  "could" have some merit  "under very particular circumstances" in the future.

The ALJ  awarded a 20% load factor.

The Commission further notes its preference to refer to parties as workers rather than claimants. which had been an issue with the prior Commission that the use of the word claimant (jargon used on the Division's own forms) was somehow pejorative. 

 

 Atty:  Chassaing, Lankford
ALJ :  Keaveny
Treater:  Nogalski
Experts:  Woiteshek

 

 

 https://labor.mo.gov/sites/labor/files/decisions_wc/PiersonThomas12-09814611-28-18.pdf