Commission totals claimant on 3rd shoulder case alone

 Randy Skaggs v Mo DOT 

Release Date:  11 19 2021

Venue:  Jackson County

Summary:  Claimant  injured his right shoulder when he moved a weed eater and developed a recurrent cuff tear imposed on two previous shoulder cases that caused permanent injuries.  He underwent surgical repair including a capsular reconstruction.  He reports daily pain and states the injury caused a career ending injury (age 59).  He was assigned PPD related to both a DVT complication and shoulder, atributed to new and prior conditions.  Prior settlements on the shoulder represented 34.5% of the shoulder.  The Commission affirmed last accident alone PTD liability. 

Comments:  The ALJ noted work restrictions following the last accident were determinative on the issue of PTD. The ALJ regarded prior settlements (discussed separately) do not meet 50 week threshold for fund liaiblity.   The Commission wrote a separate opinion noting the ALJ incorrectly reported the employer stipulated to accident (stipulation was for "incident") and made comments that were "confusing and inconsistent."  

The Commission notes when disaiblity includes qualifying and nonqualifying prior disaiblity there is no fund liability, and stated it did not regard the court of appeals decision Klecka as controlling authority becuase it was on appeal to the Supreme Court.  A concurring opinion qualified opinon that the statute required consideration of nonqualifying condition.  

Parties:

Rebman, ALJ

Rosenthal

Cordray

Stechschulte

Purinton

Commission finds no impeachment value on remote prior conviction and "poor memory" testimony

 Christopher Carewicz v Playcraft Pontoon

Release Date:  Nov 4, 2021  (2014 accident)

Venue:  Pulaski

Summary:  The Commission affirms PPD award for a shoulder for biceps and tendon tears that required surgical repair and rejects PTD claim including additional spinal claims. 

Notes:  The ALJ finds claimant undermined his case by inconsistent statements, mistatements and felony conviction.  The ALJ admitted probation revocation records over objection.  The ALJ found claimant's contemporaneous records do not support cervical thoracic and lumbar injuries and rejected his contention for a full set of dental implants.  The ALJ noted claimant did not prove PTD, and noted no disfigurement would be awarded if claimant was PTD. She over-ruled the "plethora" of objections from plaintiff counsel. 

The Commission agreed with claimant to strike criminal records claiming they were not relevant when claimant admitted his prior incarceration and the judge's inference of prior drug use was not supported from those records.  The commission further notes 'poor memory' on multiple issues was "irrelevant" to the issue of the mechanism of injury and body parts injured.  The Commission agreed claimant's "propensity to exaggerate" and other factors undermined his credibility.  

Cast:

Mahon, ALJ

Edelman, atty

Warner, atty

Poetz 40% shoulder, tooth loss complication of surgery 

Hinton - cervial and lumbar disc herniations

Mirkin - disc herniations

Cantrell - 8% 

Bernardi  - not related

Gonzeles - PTD 

What's it worth?

35% shoudler 

Court remands alleged PTD case for commission to consider excluded voc report

 Ottwell  (Parrish) v Treasurer of Mo.

Release Date:  11/2/2021

Venue:  ED 109447 

Summary:  Claimant appeals PPD award and asserts PTD against the Fund and asserts the Commission improperly excluded her vocational report.  The court remanded to consider the excluded report. 

Discussion:  Claimant reported CTS to Chrysler and then accepted a retirement package when the plant closed.  She underwent surgery a month before her retirement in 2009.  In 2010 she settled with her employer and then filed an amended claim against the Fund seeking PTD on the basis of pre-existing bladder and psychiatric issues.  The ALJ [Denigan] excluded the vocational report on the finding that it relied upon an inadmissible hearsay medical exam from Dr. Shuter, who was deceased and portions of Dr. Volarich's report which relied upon Lalk who relied upon Shuter and considered PTD evidence was "unverified." The Commission found claimant failed to prove the prior psychaitric conditon was disabling.  

The Court found the commission abused its discretion to exclude the report, that an expert could rely upon hearsay evidence  if it is reasonably relied upon and not merely a conduit for another expert's opinions.  The Court finds minimal references to the report, that the SIF attorney used an overbroad definition of relied upon, and that information in the "objectionable" report was present in other sources. 

Hon Odenwald notes:   "Given the record before us, we are persuaded that the  Commission’s ruling to exclude Lalk’s testimony in its entirety was clearly against the logic of  the circumstances and displayed a lack of careful, deliberate consideration."

Parties

Mogab, atty

Dresher, atty 

OtwellPatricia09-01561012-30-20.pdf (mo.gov)  (Commisson case)

Court reverses SIF PTD denial that did not include multiple qualifying disabilities

 Alan Marberry v Treasurer of MO.

Release Date:  Oct 26, 2021

Venue:  ED 109554

Summary:  Claimant sought PTD benefits against the fund after settling with the employer for a slip and fall injury to his back resulting in a 13.4% settlement.  The Commission found claimant failed in his burden of proof to show PTD from a primary injury in combination with a prior single qualifying disability and PTD was due to a combination of prior disabilities.  

The court found prior qualifying disabilities could be considered in the determination of fund liability and only the priors, and not the primary, had to satisfy the 50 week threshold.  The fund's contention that the shoulder prior was something less  than 50 weeks was not supported by any medical opinion.  The court found no need to remand when it found Dr. Volarich credible (as the only medical expert) and the Commission already concluded claimant was unemployable due to a combo. 

Parties

Page, Hon. 

Volarich

Lalk

Thurmer

Lecinski

Campbell 

Commission affirms TKR based on 'never got better' argument

 Alan Rogers v Mario C Early R V School

Release Date:  Oct 22, 2021  (Nov. 2015)

Venue:  Greene County 

Summary:  Commission affirms award 2-1 for knee injury and rejects progressive degeneration defense. Dissent asserts claimant healed from two meniscectomies and TKR was related to arthritis. .

Inj. No.15-093845

Discussion:  The ALJ finds claimant's TKR flowed from two meniscectomies  and "but for" the knee injury he would not have required the TKR.  The ALJ noted claimant was highly credible .... "genuine, honest, reliable, and trustworthy....persuasive and credible."  The ALJ contends the accident caused a pain process which did not improve and was related, contrary to conclusions of surgeons who distinguished between a work-related tear and an underlying unrelated arthritic conditions.  Hopkins felt claimant would likely require a TKR within 221 years due to changing biomechanics in the knee.  Dr. Stuckmeyer had rated 60% which was the amount of the PPD award.  

Parties

Elmer, J

Carlton, atty

Lemp, atty

Hopkins 

Stuckmeyer

Mall

What's it worth?

TKR 3x surgery knee  60%. , past and open medical 

ALJ awards over $18,000 in fees and costs in disputed carpal tunnel claim

 Hernandez v Butterball

Release Date:  Oct 21, 2021  (3 cases)

Venue:  Jaspar County

17-105833, 17-100700, 19-056530

Summary:  ALJ in a temporary award orders studies for carpal tunnel and orders fees and costs of $18,788.85.  Employer stipulated to accident and agreed to provide treatment to some body parts but not to the hands/wrists.  Claimant filed two claims alleging both accident and repetitive trauma to hands/wrists.  

The ALJ noted the employer violated Missouri law by not filing a FROI.  It had prepared an incident report but denied notice until the day of the temporary hearing.  The initial answer was in default.  The ALJ notes the employer waited 2 years to obtain its own IME, after claimant had incurred costs for its own report.  The ALJ awarded costs and attorney's fees at a rate of $400/hour.  The ALJ found claimant went to the employer's nurses station on a regular basis but the employer endangered her health.

Employer relied upon expert opinion of Dr. Kutnik who stated he could make treatment recommendations because he could not form any diagnosis.  Claimant's expert recommended EMG studies to evaluate suspected carpal tunnel. It is unclear form the opinion if he addressed why an EMG was appropriate or not.  

The Commission adopted the award for treatment but deferred on ruling on the award of  costs and fees because the case was not at MMI and the issue for appeal was not ripe. A dissenting commissioner would have affirmed the award of fees and costs in a temporary hearing. 

Parties:

Fischer, ALJ 

Newman

Larimore

Lennard

Kutnik

Court awards PTD against Fund for undiagnosed carpal tunnel

 Mark Lynch v Treasurer of the State of Mo.

Release Date:  Oct 19, 2021

Venue:  Eastern District

Summary:  The court of appeals reverses a denial of second injury fund benefits as not supported by substantial and competent evidence when it found claimant's retirement unrelated to carpal tunnel which was diagnosed and surgically treated years after  his retirement.

ED 109502

Discussion:  

The SIF argued claimant failed in his burden of persuasion that his retirement was a combo and relied upon an inference from a medical record mentioned in a vocational evaluation that claimant retired unrelated to his carpal tunnel.  The court found the record from Dr. Rotman not admitted in evidence, the inference was not completely supported, and that the medical and vocational opinions of a "combo" to trigger Fund liability were not found to lack credibility by the Commission or contradicted by other expert opinion. The court noted the commission failed to identify other medical findings prior to claimant's retirement to support an inference of symptomatic carpal tunnel prior to his retirement, even though the condition had not been diagnosed before he retired. 

Claimant sustained numerous injuries during his 35 year employment with Anheuser Busch.  His records identify symptoms in his hand the year of his  retirement and a diagnosis of carpal tunnel on nerve conduction studies 5 months after his retirement.  Claimant testified he had numbness and tingling for 20 years which impacted his capacity to work and he retired because of his carpal tunnel, ringing in his years and other conditions but at the time did not know anything about carpal tunnel.  It is not explained why such chronic symptoms described in his  testimony are not documented until shortly before he retires.    

The Commission case notes the employer settled for 20% of each wrist. No medical benefits were paid.  ALJ Teer denied compensation and additionally found claimant failed to establish his tinnitus was a pre-existing condition. 

Parties:

Quigless, Hon. 

Tatlow, atty

Campbell, atty 

Woiteshek

Cordray

What's it worth?   SIF PTD 

Temporary award supported by expert finding of acute radiculopathy

 Charles Campbell v DISH Network 

Release Date:  Oct. 7, 2021  (Accident date:  12/5/2018)

Venue:  Dade County

Summary:  Commission  2-1 award upholds temporary award to treat C7 radiculopathy with fusion following accident while moving a ladder.

Inj.  No.  18-109984

Cast

Mahon, ALJ

Potter, atty

Larimore, atty

Olive

Bernardi

Discussion:  Claimant's expert contends the accident was so severe to cause a new radiculopathy from the load of the ladder, and found prior imaging of the studies of the cervical spine did not identify the same condition.  The ALJ essentially found claimant a had a new medical condition (radiculopathy) despite prior degeneration, citing  Randolph County v. Moore-Ransdell, 446 S.W.3d 699, 706 (Mo. App. W.D. 2014). The dissent noted the accident could have triggered symptoms, but there were no new changes.  

The dissent noted claimant's spinal condition was more advanced for his age so it was not "normal" and notes claimant's delay in obtaining treatment for 3 months and capacity to work during progressive symptoms further demonstrated the lack of any severe, acute event.  

Claimant's expert contends the medical condition was c7 radiculopathy and prior degenerative disc disease was not a medical condition.  "Dr. Olive’s opinion, and the ALJ’s award based upon that opinion, hinge on the untenable assertion that the condition and the disability are the same thing: C7 radiculopathy. "This reading would render § 287.020.3(1), which specifically refers to the medical condition and the disability as two separate entities, meaningless."

Court finds CPA less qualified to assess earnings in small business than a family law lawyer

 Laura Williams and Jennifer Williams, etal  v Reeds, LLC

Release Date:  Oct 5, 2021

Venue:   Court of Appeals - Southern District     SD  36883, SD 36892

Summary:  This case is a fight over applying the "special circumstances" wage rate section to figure out what to pay survivors when the sole company owner was crushed by a car and  took a weekly draw that was not designated as wages and paid business and personal expenses off the business account.  

The Court deferred to the Commission's finding as to which expert it believed and adopted findings of a family law attorney over the opinions of a CPA and forensic specialist resulting in computation of wage rate based on $62,100.13 annual earnings rather than the net profits of the business of $13,127.  The court noted it is bound by the commission's finding even if other evidence would support a different result.

The court found a family law attorney was qualified as an expert to render an opinion on earnings under 490.065.1, and the expert's lack of expertise in worker's comp did not preclude admissibility of his expert opinion.  The employer argued since he was not an expert in comp, he could not opine on comp rate pursuant to the statute.  

One of the surviving daughters failed to persuade a majority of the Commission that she was "full-time" student to to avoid disqualification as a dependent.  The daughter argued employer lacked standing to challenge dependency when the ALJ found it, and the Commission found it was no longer present.  The court found the employer had standing to challenge the qualifications of any of the benefit recipients.   The Commission had found if claimant was part-time student at age 18, that dependency could not be revived by later enrolling full-time.  

SIF PTD Denial reversed when multiple conditions trigger liability

William Wilson v Treasurer of the State of MO

Release Date:  Sept. 28, 2021  (accident date:  Nov 2017) WD 84420

Summary:  Court of Appeals reverses a denial of a claim of PTD against the SIF based on Parker and concludes the Commission erred in its application of 287.220.3(2) that liability required proof of primary and only one qualifying disability and not when claimant had multiple prior qualifying disabilities. 

The undisputed medical testimony is claimant had a primary injury (42.5% ankle) and three prior conditions which satisfied threshold involving both knees and his CV condition.   The court found the commission applied the correct sub-statutory section, unlike in Parker, but applied the wrong standard. The Fund offered no medical opinion to contest Dr. Volarich's opinions.  

Parties:

Pfeiffer, Hon. 

Volarich

McDuffey

Schmidt

Claim denied based on burden of persuasion

 Anttila v Treasurer of State of MO

Release Date:  Sept. 17, 2021

Venue:  Southern District

Summary:  Court affirms Commission denial of disability claim against the Fund, noting a failure in the burden of persuasion between the experts.

The court found claimant's alleged error that he could not amend his claim was unfounded as he was allowed to amend it and failed to prove the claim  on the merits.  The ability to amend is within the discretion of the ALJ and not prohibited by strict construction.  

Application for review sufficient to withstand motion to dismiss

 Linda Miller v Henniges Automotive  (SIF only)

Release Date:   Sept. 14, 2021

Venue:  Eastern District, Div.  1   ED  109432

Summary:  Court reverses the Commission's dismissal of claimant's application for review and finds the application satisfied the standards of 8 CSR 20-3.030(3)(a) with sufficient specificity when it went into detail about Dr. Cohen's testimony and whether the ALJ misapplied the testimony to the 2015 or 2016 claims.  Claimant noted that Dr. Cohen "corrected" his opinion that the restrictions applied to the 2016 occupational disease claim and not the 2015 injury by accident claim. .  The court agreed the "cover sheet"  alleged the decision was not supported by sufficient evidence  and such asserted error was not enough but the application allowed and included additional pages with further detail.   The court did not address the merits of the alleged error.  

Commission finds no SIF total with prior 43% BAW disability

Robert Cantrell v Spire  (sif only)

Release Date:  9 15 2021

Venue:  Cass County

Summary:  Commission reverses an award of PTD against SIF for a primary shoulder injury (20%) based on 43% BAW prior combo settlement when the award also considered of other orthopedic and psychological conditions. The commission found reversible error by consideration of non-qualifying conditions in a determination of fund liability and not due to combination solely from prior accident at 43% BAW.  

The Commission denied the request for additional evidence for the experts to address exactly that point, whether the 43% BAW alone with the primary would constitute PTD.  The Commission declined and noted the claimant "could have" solicited alternate conclusions about liability with the exercise of reasonable diligence rather than relying upon Parker case, which was on appeal at the time.  

A dissent would have affirmed the PTD award and regarded consideration of nonqualifying conditions was not erroneous. 

Inj  No.  18-019636

Cast

Rebman 

Perkins

Hinson (sif)

McCabe

Schmidt

Rosenthal

Cordray

Notes

Claimant's attempts to return to work were reportedly foiled in part when a camera installed by his employer and triggered his prior PTSD/anxiety.

The Commission noted it would have regarded a prior 43% BAW settlement to qualify even when it was "combined" multiple conditions (scheduled and unscheduled) when it divided the total weeks of disability  by the number of body parts listed on the settlement and each would separately trigger the minimum threshold.  

Employer found total liability on "second to last" accident

William Watson v Tuthill Corporation

Release Date: Sept. 13, 2021  (April 2015)

Venue:  Greene County

Summary:  Commission affirms PTD for back injury from a senior service technician resulting from a single level lumbar fusion. He described a failed return to work after surgery and then reported a new neck injury.  The employer was unable to accommodate claimant and his expert recommended onerous work restrictions.  

The case is unusual as claimant returned to work and then had a subsequent 2016 accident.  The court found that this did not preclude a finding that he was totally disabled from the 2015 accident because after the 2016 he was employed but not working in a capacity that would allow him to work in the open labor market, in effect, not 'really' working and was not at MMI.  Even though the 2016 was the "last accident" chronologically it was not a "last accident" for purposes to assess fund liability.  Claimant was already totally disabled so the vocational impact of any new injury was irrelevant to his capacity to work and the fact that he was working did not preclude a finding that he was unemployable.   

Cast: 

Mahon, ALJ 

Vasquez

Sparlin

Bang

Koprivica PTD failed back syndrome

Eldred

Woodward 16%

Sprecker

Belz

Comments:  The ALJ refers to claimant in glowing praise that he was a "loyal employee" and "toiled" at his job for 28 years and went on work trips to South Africa but had to stand in the plane because of pain.     

Nudging heavy cart supported PTD award against employer.

 Harper v Springfield Rehab

Release Date:  9/13/2021  (Accident date June 2018)

Venue:  Greene County 

Summary:  Claimant alleged PTD while trying to move a heavy medication cart with her hip.  Commission affirms the PTD award and denies a request to submit additional evidence.  Inj. No.  18-057914. 

Claimant described a pull in her back moving a 100 pound cart.  She quit her job, applied for social security (age 69), and filed the comp claim.  She treated with ESI and a doctor recommended a spinal cord stimulator.  Records indicated mobility issues related to a prior neck surgery.  Her expert asserted she had structural changes with new stenosis and facet pain.  Dr. Kopravica indicated claimant was totally disabled from last accident alone.  

The employer relied upon Dr. Cantrell for an accident defense based on a medical history that claimant reported no pain complaints until after going home and sleeping, Dr. Cantrell opined that there is no evidence of a specific event during a single work shift that would constitute a specific injury having occurred on June 22, 2018."  Dr. Cantrell indicated that he felt the history of a "pulling" symptom was not an injury.  He could not identify any record of give away weakness in the prior history. 

ALJ Mahon concluded claimant had an unusual strain when she had symptoms that she stated required OTC medication by the end of the shift.  She felt this produced "objective" signs of injury.  She felt Dr. Cantrell based his opinions on a fundamental misunderstanding, and conceded she could have had a temporary aggravation.  Her risk source of pushing heavy medical carts was a unique occupational risk.  The ALJ noted this was more than a soft-tissue case as it demonstrated a psychological component. 

The ALJ found Dr. Cantrell's findings that the 2018 accident did not cause a new structural injury supported a basis to deny any fund liability for the prior neck surgery.  SIF liability required proof that the prior (non work condition) aggravated or made worse the subsequent condition. The prior neck surgery at C2 identified a noncancerous tumor in her spinal canal and there was no evidence the prior neck condition was work-related.   In addition, she notes Dr. Koprivica expressly stated there was no aggravation between the prior neck surgery and the subsequent back injury.  Dr. Koprivica had provided an alternate theory of a combo if PTD was not last accident alone.  

The dissent argued pushing a wheel cart one or two feet was not credible as an accident when claimant did not have immediate symptoms, she performed additional nursing duties during the night, and she stated her symptoms could have come from "anything."  The dissent noted a lack of  evidence to support the  finding of additional psychological injuries.  

Inj. No.  18-057914

Cast:

Mahon, ALJ

Alberhasky

Leahy

Kopravica

Eldred

Cantrell

Hosutt

What's it Worth?  

PTD (non-surgical back, career ending restrictions) 

Claimant PTD from prior conditions fails to trigger fund requirements

Wesley Davis v Lazer Spot Inc.

Release Date:   9/13/2021 (Accident Aug. 2014)

Venue:  Cole County

Summary:  Claimant appeals a denial of PTD benefits against the second injury fund. The Commission affirms.  The ALJ found experts credible that claimant was PTD due to the 2014 low back, the prior knee and the prior low back, that the prior back aggravated the current back claim, but claimant failed to satisfy the requirements of 287.220.3(2)  that disability flows from a single qualifying pre-existing disability, when the prior knee lacked sufficient level of disability to qualify under the statute. 

The Commission noted the prior qualifying disability does not have to be known,  it does not have to be at MMI, but it fails to trigger liability when there was no testimony that the knee or knees aggravated or accelerated the primary injury.  A dissent found consideration of non-qualifying disabilities did not preclude a finding that SIF owed for claimant's PTD.

Inj. 14-063032

Cast

Fisher, ALJ 

Volarich

Weimholt

Bernardi

What's it worth?  

20% CLSS back (revision of prior surgical fusion). 

Court grants retaliation claim under 287.780 a second life

 Travis Poke v Independence School District

Release Date: Sept. 7, 2021

Venue:  WD  84198

Summary:  Janitor alleged abdominal injuries from lifting at work and school district fired him and denied workers compensation benefits after a positive drug test identified marijuana.  School district defended the claim that termination was not a pretext and it  had a defense of sovereign immunity although it had bought a liability policy on the contingency that immunity barred such actions.   The court found the trial erred to grant defense a motion for summary judgment and relied upon an inapplicable statute as the basis for its decision.  

The court concludes a school district is not protected by sovereign for a claim of retaliatory discharge and the trial court erred to conclude 105.800 was a shield to avoid such claims.  In Krasney, King, Wyman, and Wille the employee claimant was employed by the state to perform duties on behalf of the state, and was thus a "state employee" as defined by section 105.800."  The court distinguishes whether the employer is a state employer or if claimant is a state employee. 

 "We conclude that the General Assembly's creation of a civil action for damages in section 287.780 that can be brought against any employer, and the General Assembly's intent that the Workers' Compensation Law apply to every governmental body included within the definition of "employer" at section 287.030.1(2), combine to reflect an express waiver of sovereign immunity for section 287.780 claims of retaliatory discharge....

 [and did not address] "the retention of sovereign immunity by the state with respect to claims of retaliatory discharge by state employees, as provided in section 105.850, and as held in Krasney, King, Wyman, and Wille." [including claims of injunctive relief].

The court notes plaintiff has the burden to show an exception to sovereign immunity. "Although the School District asserted sovereign immunity as an affirmative defense in its Answer, sovereign immunity is not an affirmative defense but is instead a part of the plaintiff's prima facie case, such that Poke had an obligation to plead specific facts in his Petition supporting a waiver of, or an exception to, sovereign immunity. State ex rel. City of Kansas City v. Harrell, 575 S.W.3d 489, 492 (Mo. App. W.D. 2019). The School District did not file a motion to dismiss Poke's Petition for failure to state a claim, and its Motion for Summary Judgment did not argue that Poke failed to plead a waiver of, or an exception to, sovereign immunity."

Cast:

Martin , Hon. 

Doyle, atty

Marriott, atty 

Commission finds prior polio aggravating factor to award SIF total

 Clifford Wolf v Duckett Creek Sewer District

Release Date:  8-25-2021

Venue:  St. Charles, MO 

Summary:  The Commission affirms a PTD SIF award on the basis of a primary carpal tunnel case and pre-existing back condition (13.5% settlement) with polio (35% each ankle rating).  The ALJ finds expert opinion of aggravation of prior polio and  work injury without description and noted claimant's need to rest and concentration deficits made it unlikely he could sustain work.  

Injury No. 14-105395

Cast:

Landolt, ALJ

Krispin

Toepeke 

Hughes

Forget

Moore

Brown

Minges - SIF expert, relates back mostly to natural aging process 

Notes

ALJ commends claimant for remarkable work ethic and showing he was a highly motivated individual. 

What's it worth?

primary settled at 22.5 and 20% wrists for career employee 

Commission erred to deny SIF benefits on its lay opinion on causation

 Robert March v Treasurer of the State of MO. 

release date:  Aug 31, 2021 (Accident April 2015)

venue:  Western District

WD 84377

Summary:  Claimant challenges the sufficiency of evidence to deny his claim. 

Claimant settled a claim for repetitive trauma disorder (arms) allocated at BAW.  (110 weeks). Claimant sought SIF benefits for pre-existing disability for his legs (among other conditions) and a doctor rated 30% of each leg and separated out non-occupational conditions impacting the legs such as obesity (approaching 500 pounds).  Claimant presented uncontradicted opinion and the fund offered no expert.

The ALJ found the uncontradicted opinion of the expert not credible.  The Commission found the expert credible but concluded it was "equally likely" that prior conditions without the addition of the primary injury rendered claimant unemployable.   The court found such conclusions  to deny liability not supported by expert opinion and speculation and conjecture.  The Commission could have found claimant's expert not credible, but disavowing that conclusion of the ALJ, it added credence to the only expert opinion on the issue.  

The court noted it was not obligatory for the Fund to present evidence,  but such strategy was risky to argue that claimant failed in its burden of persuasion. 

Failure in burden of production when SIF claim incorporated nonqualifying prior conditions

Ray Ingles v Corrigan Bros.

Release Date:  8 18 2021  (Aug 2014)

Venue:  Callaway County

Summary:  Commission affirms denial of PTD benefits against the SIF when expert opinion exclusively relied upon qualifying and non-qualifying medical conditions.  A dissent regarded consideration by experts of non-qualifying disabilities was not reversible error.  ALJ Farmer further noted claimant failed to show PTD from a "single" pre-existing disability and opined he was "constrained" by the statute as it was "currently construed."  The Commission noted a lack of evidence that the prior aggravated or accelerated the disability based on the statute.  

14-102499

Cast

Viet

Donner

Volarich

Cordray

SIF liability not found for total hearing loss without evidence to show it meets SIF statutory categories

 Robert Schebaum v ABB Holdings

Released:  8-10-2021 (accident Jan 2014)

Venue:  Cole County

Plot summary:  Commission in 2-1 decision affirms denial of PTD against then fund for failure of proof of statutory requirements of 287.220.3(2) for bilateral knees and hearing loss when he was working 70 hours a week prior to primary 

The Commission found expert opinion on  PTD relied upon nonqualifying total hearing loss that did not fall within one of the four qualifying subcategories:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or (ii) A direct result of a compensable injury as defined in section 287.020; or (iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or (iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury ....

It appears Eldred later attempted to modify opinion that PTD was due to knees alone.  ALJ found Eldred not persuasive by live testimony of PTD from knee injuries alone when prior opinion found claimant's hearing loss a combining factor in PTD.  Knees were found 25% and 45% disabled with 100% hearing loss (180 weeks) as part of a global disability presentation.  

Cast:

Fischer, ALJ

Snyder

Koprivica

Eldred

Commission finds back injury is an "opposite extremity" to support SIF total award.

 Brenda Comer v Central Programs 

Date:  8 11 2021  (Nov. 2016 accident date)

Venue:  Harrison County 

Summary:  SIF appeals PTD claim.   Commission affirms.  

16-085212

SIF argues prior hip (non-occupational) medical condition did not qualify under 287.220.3 and asserts a hip was not an opposite extremity for the primary back (400 week) injury and that any PTD was last accident alone based on lay opinion about symptoms (with no supporting expert opinion).  

The Commission found expert opinion that the primary back condition caused right leg symptoms to be regarded as opposite extremity to the prior left leg/hip condition and uncontroverted medical opinion to show substantial aggravation to qualify under the statute:

"[Employee’s] preexisting leg pain has combined with the current radicular symptoms to create a more significant disability than either considered in isolation. Further, Ms. Comer testified that the limp she has had since the 1987 injury has gotten worse and more painful since November 1, 2016. Her back and left hip hurt in conjunction with each other, which is why Dr. Koprivica opined her back pain is worse than it would have been if she did not have left hip pain and an altered gait. The hip shattered in the 1987 injury is directly adjacent to the lumbar spine where the 2016 work injury occurred. Thus, this is not an unrelated accident location but one that actively aggravates the subsequent work injury in numerous ways."  (emphasis added).

The ALJ denied future medical and noted claimant was unable to distinguish pain management needs attributable to the accident given her prior chronic pain. 

Cast:

Asbridge, ALJ 

Nordyke, atty

Levine, B atty

Cole, Candace, atty

Grace, Ashley, atty 

Koprivica

Bailey 

Reversible error to award fund total on cumulative prior BAW settlement

 Walter Adams v Jim Hawk Truck Trailers

Release Date:  Aug 18, 2021

Venue:  Clay County

Plot Summary:  SIF appeals PTD award in which the Commission reverses in a 2-1 decision and disqualified a prior settlement of 15% BAW which failed to allocate disability separately to either the back or bilateral knees and was considered as a basis for a SIF award. No expert indicated claimant would be PTD independent of consideration of the earlier "cumulative" 15% prior.  

Inj. No.  15-073485

Cast:

Siedlik, ALJ 

Doyle, atty 

Pritchard, atty 

Fournier, atty 

Cordray

Court awards total against fund related to hearing loss

Jimmy Fields v Treasurer of MO

Release Date:  July 20, 2021  (2012, multiple)

Venue:  ED 109259  Div. 4

Plot Summary:  Claimant alleges multiple back injuries and noise exposure while working as a ramp agent for Southwest. He settled 5 claims against his employer and sought benefits against the Fund. The court reversed a denial of fund benefits on the basis of prior hearing loss.   

Comments:  Claimant's expert rates 25% collectively for disability to the back among 4 claims and stated he "guessed" to apportion disability equally.  He declined to rate the hearing loss but testified to a synergistic effect between the back conditions and hearing loss to render him totally disabled.  

The court affirmed a denial of multiple PPD claims against the fund but reversed and found PTD on basis of the prior hearing loss.  The court found claimant did not meet his burden to establish percentages of disability and the Commission could find Dr. Margolis apportionment to lack credibility as it was based on guesswork.

The Court found the commission's finding that claimant was not totally disabled in combination of the hearing loss was inconsistent with its earlier award of partial disability on the back alone.   Dr. Margolis' opinion about synergistic effect to cause PTD was sufficient to support a PTD award even though he deferred to rate the degree of permanency related to the hearing loss.  The court found such testimony proceeded, without objection, and was not contradicted and the commission acted arbitrary without regard for the evidence to deny fund liability.  

Gardner, Hon.

Gaertner and Hess concur

Experts

margolis 

stock

cantrell

davis

mikulec

Impeaching video diminishes PTD claim for foot injury

 Kenneth Stratton v R&L Carriers

Release Date:  7-12-2021  (Oct 2015)

Venue:  Jackson County

Summary:    Claimant fell and injured his foot resulting in 22.5% disability and fails to prove PTD or future medical.       

Inj  No.  15-079592

inal award deny comp - affirm (mo.gov)

Parties:

Siedlik, ALJ

Starke

Weltz

Stuckmeyer

Hornton

Speckler

Cordray

Comments:  The ALJ notes claimant's evidence is contradictory and video is problematic and inconsistent with testimony.  A dissent would have awarded PTD benefits and allowed the admission of a hearsay report because the report is referenced by vocational experts.  

Commission affirms total against fund for injuries with prior fusion.

 Steven Oakley v Central Transport Inc.

Release Date  July 2, 2021  (Nov. 2020)

Venue:  Scott County

Summary:   Commission affirms PTD award against the Fund and 45% award with open medical against employer for cervical, thoracic, lumbar injuries and concussion from getting struck by trailer door.  The experts disputed whether the extent of surgeries performed to cervical and thoracic spine were necessary, whether claimant sustained a new back injury, and  the need for future medical.  The ALJ found a combo due to prior conditions involving the neck (prior fusion) back and shoulder.  The employer had paid about $457K in benefits prior to the award.  

Inj. No.  10-109148

final award deny comp - affirm (mo.gov)

Cast

Byrne, ALJ 

Rice

Barkett

Patt

Williams

Fonn

Vaught

Yazdi

DeGrange

Chabot

Shea

Hughes

Cordray

Commission denies police officer's claim of stress-caused heart disease

 Harry Hall v City of Richmond Heights

Release Date:  July 2, 2021  (Jan 2014)

Venue:  St. Louis 

Summary: Commission 2-1 affirms denial of a "hybrid" claim under 287.067.6 that stress of  a career police officer caused his cardiac death.   

Inj.  14-032369

final award deny comp - affirm (mo.gov)

Cast:

Schaefer, ALJ

Martin

Hilliker

Shreim

Schuman 

Mankowitz

Comments:

ALJ rejected motion in limine to exclude Dr. Markowitz' report which concludes his heart disease was idiopathic,  which was admissible based on his experience,  even without proof of an separate genetic marker to show heart disease.  Claimant must show that cardiac conditions -- spasm, afib, and bicuspid aortic valve and hypertension had their origins in his work. The ALJ found allegations were nebulous and non-specific beyond general allegations that work can be stressful and confrontational.  

Claimant had received a prior settlement in 1990 related to a heart attack.

The ALJ notes a job reference letter written by claimant's counsel which does not mention limitations related to stress.   

Court frames SIF reform as intent the employer pay for more PTD cases

 Klecka v Treasurer of the State of MO as Custodian of SIF

Release Date:  June 22, 2021 (April 2014)

Venue:  Eastern District (Div. 3) 

Summary:  The Commission committed reversible error when it denied benefits on an alleged failure of proof that 287.220.3 allowed compensation only upon proof a qualifying primary injury and only one qualifying pre-existing disability when experts considered multiple pre-existing disabilities.  The court, citing Parker, found medical and non-medical factors could  be considered consistent with 287.020.6, including multiple prior conditions once claimant establishes at least one qualifying condition.  The Fund conceded factors such as age, skill, education and training could be properly considered in conjunction with applying 287.220.3. 

Dowd

Volarich

Gonzalez

England

Comments:   

The decision suggests there is legislative intent that the employer pay PTD by default when there is not a qualifying SIF prior. This conclusion may come as a surprise to many employers who backed statutory reform to stop the feeding frenzy and surcharges for pre-reform SIF cases. 

'The question that the court must decide whether the employer or the fund owes for the total.  "If the claimant is PTD and satisfies the requirements of section 287.220.3, the Fund pays. If not, the employer pays."  and the "tighter the restrictions"  then "the more PTD liability falls back on the employer." '

Commission affirms total on last accident alone for hernia/psych case

 Tucker v K&K Pallet Company 

Release Date 6 - 15 - 2021  (April 2001) 

Venue:  Warren County  

Background:  The case spans over 19 years with the company dissolved and the insurer in liquidation. Claimant alleges injuries throwing pallets, he was diagnosed with a hernia and underwent a hernia repair.  He underwent multiple further surgeries for recurrent hernia and abdominal pain with development of DVT. .  Claimant reported he developed depression due to chronic pain and had outpatient psychiatric care for 6 years.  

Cast

Kohner, ALJ 

Edelman

Poetz

Weimholt

Randolph

Pribor

England 

Comments:  Dr. Poetz concluded claimant was PTD from the last accident alone.  Dr. Pribor attributed 50% to pre-existing psychiatric conditions.  Claimant sought an award of about $85,000 in medicals bills which the ALJ awarded including future medical and PTD based on pain complaints and impact of sleep deprivation.  

A dissent would have awarded PTD against the Fund due to significant pre-existing disability. 

Commission finds "twisting" accident did not arise out of employment

 Sydney Durr v Americare Systems

Release Date:  6/16/2021  (March 2015)

Venue:  Wayne County 

Plot Summary:  A 30 yo CNA twisted her knee when her foot (wearing non-skid shoes) planted while stepping backwards out of a tight space between the bed and wall  and states that day she was "rushed" to distribute water to the residents.  The commission reversed an award of more than $30,000 in benefits and noted claimant failed to prove an injury arising out of her employment. 

Inj. No.  15-013660

Parties:

Byrne, ALJ

Schellhammer 

Kornblum

Woiteshek

Bagwe

Ritter

Comments:  The ALJ awarded approximately $22,000 in bills and reduced the award of TTD because claimant did not follow pre-op instructions and the surgery had to be rescheduled. The ALJ awarded 15% in PPD. 

The Commission, 2-1, indicated claimant did not identify any problem with lighting, or substance on floor to cause her to fall and she was not holding anything in her hands at the time.  The Commission found the injury did not arise out of employment because twisting and turning was not a condition of employment nor was the risk from twisting and turning distinguishable from similar movements outside of work.  

Commission allows full charges as reasonable in medical fee dispute

 James Noel v Mondelez International Inc.

Release Date:  June 9, 2021

Venue:  

Cast

Schaefer, ALJ 

Spooner (for Timberlake)

Schaller, employer 

Summary:  Timbercreek filed a medical fee dispute against employer and asserted the surgery center was underpaid about $30,000 related to fees for a rotator cuff repair performed 7 years ago after the carrier authorized the services.  The ALJ found the charges fair and reasonable and omissions in the application of the date the charges were disputed did not deprive the Division of jurisdiction.  Commission rejects employer's defense that reasonableness of bills is based on what is customarily received according to 287.140.3  (fee the provider "receives")  and not  what is customarily billed.   

Comments:  Employer argued the provider normally discounted its services at 47% of billed charges and to charge the "full" price was unreasonable fee when it produced a charge of  $338 a minute.  Employer introduce evidence of 1300 bills for similar services received similar reductions based on 287.140.3 that recovery is not "greater than the usual and customary fee the provider receives...."  It also notes the surgery center added 150% mark up on its supplies. 

The provider indicates it did not reduce claimant's liability from full charges, that it required claimant to agree to unconditionally pay any balance as a condition of services, and that a customary reduction to other patients was irrelevant to the issue of claimant's liability.  The Commission recognized the principal that employer can reduce liability with evidence that personal liability is extinguished if the provider allowed write offs and reductions for their own purpose 

The provider reportedly "marked up" the cost of implants  150%,  but the employer did not show that the mark-up was different from other provider.  The employer offered no evidence that it was surprised by the bill or evidence of prior transactions with the center to address reasonableness of pricing. 

The commission found no statutory authority to award interest in a medical fee dispute.

The Commission does not explain how it applies statutory interpretation rules to construe "receives" in 287.140.3 to mean "billed" for the purposes and relies upon Farmer-Cummings which is a pre-reform case which shifted the burden of proof in Missouri comp compared to tort recovery to start with the position that any billed amount is reasonable rather than the collected amount more accurate reflects reasonableness.

.  

Commission rejects "smoke and mirrors" argument that knee injury at work arose out of employment from "walking"

 Jamie Overstreet v TAMKO Building 

Release date:  June 8, 2021 (Feb. 2018) 

Venue: Joplin

summary:  Claimant alleges injuries to the left knee from twisting while walking on a level surface and his knee surgery flowed from the accident.  Claimant failed to show that changing directions while walking was a hazard he would not have equally encountered outside of work to establish a work related risk arising out of employment.  Claimant acknowledged similar exposure of walking on asphalt and changing directions in public parking lots while shopping and failed in his burden of persuasion from "smoke and mirrors" testimony  that walking over "more" uneven surfaces at work or wearing boots contributed to an increased risk hazard. 

Cast 

Fisher

Peterson

Sparlin 

Koprivica 

Comments    An operations manager testified  regarding his personal knowledge of the condition of the place of the alleged accident and similar asphalt lots in he community and opined there was no material difference. 

The dissent felt claimant established increased hazard through cracked, uneven, inclined and low lit asphalt surface.  

Commission excludes prior statement in SIF total.

Kevin Young v Linmark Products

Release date:  June 7, 2021

Venue:  Franklin County

Summary:  Claimant sought second injury fund benefits following a claim of cubital tunnel syndrome and recurrent carpal tunnel  settled with the employer.  The court affirms a PTD award against the Fund.

Claimant sought benefits for sleep apnea, herniated cervical disc, exacerbation of herniated disc, carpal tunnel and thoracic compression fracture and relies upon expert opinion from Dr. Poetz that claimant has greater than 100% pre-existing disability.  It appears the SIF defense was based on vocational opinion to argue post-accident worsening or 'some other condition' was involved.

Inj. No. 03-051173

Cast:

Kohner

Edelman

Poetz

England

Hogan

Cantrell

Wagner

Weimholt

Comments:  The ALJ noted claimant was vocationally impaired by the use of narcotic medication and the need to lie down and difficulty staying alert.  The ALJ found plaintiff's vocational expert based opinion on more comprehensive review of evidence.   The SIF sought to introduce a statement from claimant to a doctor purporting to assert that his carpal tunnel was not work related.  The commission  found the an attempted  "use" of the statement by the fund or reference to the statement in evidentiary depositions was barred as it was not produced in a timely fashion after a statement request.   

 

Pro se prosecution fails after claimant 'hangs up' on judge.

 Gerald Wedel v Bigfoot on the Strip LLC

Release Date  June 3rd, 2021

Venue: Taney County

Summary:  Pro se claimant fails in his burden of proof to show injury by accident in bizarre claim that "rough riding" caused him to  fracture his foot.  He put forth no admissible evidence and insisted everything he needed to prove was in his "affidavit of truth"  which he claims was "filed" but never admitted into evidence.

Claimant failed to appear in person for his "final" hearing and hung up when the judge called him and told him his "affidavit of truth" was not going to be enough.   The employer offered various medical records into evidence and statements from three witnesses that claimant was limping around at work but never attributed his condition to a work injury and had sent the employer a copy of his "affidavit of truth" also.  Claimant failed in his burden production that any injury arose out of and in the course of employment to support a claim of PPD or TTD. Employer raised notice as a defense.   

Inj. No.  18-031902

2021 MO WCLR LEXIS 35

Comments: 

The case raises an interesting tactical decision why after a failure of the case in chief  of any admissible evidence to prove accident the defense did not merely rest the case and or ask for sanctions.  Live witnesses, even without cross exam, can sometimes present problems.  It is not clear why the award did not deny accident and find all other issues moot.   Rate was listed as "undetermined" rather than the statutory minimum. 

Cast:

Elmer, ALJ

Koller, atty

Experts, none identified 

Plaintiff expert found not credible due to sketchy findings in second report

 Sullier v SSM Health

Release Date June 8, 2021

Venue:  St. Louis County

Summary:  Claimant alleges injuries to her elbow while working as a nurse when a patient using a commode grabbed her arm.   The commission affirmed a denial based on the failure in the burden of persuasion by the claimant's testimony and expert testimony which were not found to be credible.  The claimant had two accidents involving the same arm with conflicting medical opinion which event caused epicondylitis and the need for surgery.    (Inj. No. 13-064888)

Cast

Ottenad

Swaney

Leahy 

Woiteshek

Hobbs

Strecker

Comments:  The ALJ notes claimant is "confused" by the time line, and her assertion she did not have a second injury is inconsistent with other evidence.  The ALJ finds claimant's testimony confused but sufficient to establish a 2013 accident but not credible to determine her condition flowed from the 2013 event as asserted by her expert.  (Dr. Strecker attribute the 2014 as the likely source).

The ALJ notes it is troubling whether claimant's expert saw claimant twice as he reported, and that he was not credible to support claimant's burden of persuasion.  He notes the expert changed dates and had strikingly identical clinical findings reported from "both" exams and excluded history and findings that would have been expected if he actually saw her a second time. 

The ALJ had "doubts" whether claimant's amendment was untimely when the claim was amended 5 years later but did not reach a decision on the merits.  The Commission declined to consider the issue as any alleged error was not preserved in the application.  

Commission reverses temporary award for shoulder injury

 Pamela Boyer v Red Wing Shoe Company

Release Date:  June 8, 2021

Venue:  Iron County 

Summary:  Claimant alleges she struck her shoulder on a dye plate and was diagnosed with a cuff tear. She did not initially provide a history of accident until the doctor explored various possible sources of trauma. The ALJ found the accident the likely cause of the cuff tear without dislocation  and noted the absence of prior symptoms. The commission reversed the temporary award based on expert testimony that the mechanism of injury was unlikely to produce the tear and more likely related to risk factor of arthritis and smoking. The ALJ found claimant was not credible and failed to prove injury.  

18-035982 

Cast

Young, ALJ

Ellen Morgan

Karie Casey

Welder found total due to 'post-laminectomy' syndrome

 Roy Franklin v Mitchell Mill Systems

Release Date:  May 27, 2021

Venue:  Southern District

Plot Summary:  Court affirms a permanent and total award against employer for last accident alone based on "post laminectomy" syndrome.   (SD 36898) 

Cast

Rahmeyer, Hon. 

Koprivica

Eldred

Skahan 

Comments:  Claimant pursued a claim of injury by occupational disease and underwent back surgery and was unable to return to work as a welder but was able to return to work after his 6 "major" prior surgeries.  The commission had noted Dr. Koprivica's alternative explanations during cross exam were not inconsistent or rendered his opinions to lack credibility.  

"We do not consider Dr. Koprivica’s additional alternative analyses inconsistent, but rather merely his effort to respond to [E]mployee’s attorney’s diligent questioning designed to anticipate and address every possible liability scenario under § 287.220.3 RSMo. We further rely on the opinion of vocational expert Phillip Eldred that medical restrictions resultant from [E]mployee’s primary injury rendered him unable to compete for work in the open labor market. We conclude [E]mployee’s fifty-eight hour a week job as a welder for [E]mployer from 2006 to 2014, frequently lifting fifty or more pounds, carrying, squatting and kneeling was the sole cause of his permanent and total disability.' 

The ALJ made a specific credibility finding that claimant was honest, reliable, genuine and trustworthy. 

Some of claimant's prior conditions were found to impact his employability, but the postural restrictions flowing from post-laminectomy syndrome alone rendered him unemployable according to the opinions.  

Failure in production of evidence of idiopathic defense that but for obesity claimant would not have had fatal heat stroke.

Halsey v Townsend Tree Service Co.

Release date:  April 20, 2021  (Accident date July 2016)

Venue: 2021 Mo. App. Lexis 469 SD 36658

Summary:  Court affirms finding that claimant passed out at work on a hot day in Poplar Bluff while collection "caution" signs.  He died the following day from hypothermia.

The employer argued that claimant's death was compensable, and it was not precluded by claimant's idiopathic condition (obesity, 300 pounds).  The surviving parents argued there was no remedy in comp and could proceed in a wrongful death claim.  

The ALJ found the accident compensable and the idiopathic obesity defense did not apply.  The Commission found that obesity may be a contributing factor, but there was no medical opinion that the injury was entirely idiopathic. 

The court found there was expert opinion that exposure on one day was the prevailing factor, despite equivocal testimony that exposure on other days may also contributed to the heat stroke.  The expert considered the appeal was "doomed" because it did not acknowledge favorable evidence from lay witnesses of the heat exposure on the last day. 

The court noted the parents failed in their burden of production that  obesity causes the injury, not that it was a factor or a contributing cause.  An idiopathic cause cannot be a defense unless it can satisfy the "but for" causation test and would not have occurred but for the obesity.  The court declines to address whether 287.020.3(3) requires any closer causal connection between an idiopathic condition and the alleged resulting injury.     

A federal court dismissed a wrongful death suit and found whether a compensable accident occurred must be decided by the commission.  It noted a compensable injury did not occur according to expert opinions and felt that obesity precluded compensability.  

Court adopts new rules for SIF cases

 Treasurer of the State of Mo as Custodian of the Second Injury Fund

v.  Jonathan Parker

Release date:  April 20, 2021  (Accident date  June 2014)  

Summary:  The Fund appeals an award of PTD benefits and contends benefits were not supported by section 2 or section 3.  It further objected to admission of records attached to a report, which the judge had allowed into evidence and over ruled the objection.

The court found the 2013 changes requires qualifying conditions to be medically documented, by equal to 50 weeks of permanent disability and meet one of the qualifying criteria of either (i)(ii)(iii) or (iv).

The Fund argues conditions do not qualify unless they are at MMI before the primary injury because PPD requires MMI.  The court finds claimant must prove a condition prior to the accident qualifies as 50 weeks of PPD, but the determination can be made post-accident and the claimant does not have to know (or have it determined) before suffering the primary accident. One presumes the court means does not have to know the degree of permanency or MMI status and not does not have to know there is a condition.  

The Fund argues that 287.220.3(2) (b) should include combination of multiple pre-existing conditions and did not have to be based upon proof only on one qualifying pre-existing condition or a combination of pre-existing conditions but could not include a combination of qualifying and non-qualifying conditions.  

Both parties agree the Commission applied the wrong section (2 not 3) and the court remanded the case, and declined to adopt the findings based on an erroneous application of the statute.  

The court noted that claimant cannot admit a record of Dr. Hess -- by attaching it as an exhibit to a set of records submitted in a 60 day of a report from Dr. Stuckmeyer.  The Fund failed to preserve its objection to allow other experts --- Dr. Hess and Dr. Dreilling -- to opine on material aspects of Dr. Hess' report  

Commission applies 30 hour rule for comp rate

 Juanita Kurbusky v Independent In Home Service

Release Date:  April 7, 2021  (August 2012 accident date)

Venue:  Texas County

Summary:  Commission awards 20% BAW for orthopedic injuries.  Claimant alleges she required RF ablation and injections and alleges she developed a DVT/PE due to inactivity.  The Commission found the ALJ erred to use 40 hours a week to set compensation rate for a part-time employee.  

The case considered for purposes of a second injury fund award a laundry list of medical condition including a  knee "locking up" at age 12 (claimant is 60).  Claimant was not felt to be PTD.    

Cast:

Elmer, ALJ 

Edelman, atty

Musick, atty

Byrd, atty

Poetz

Weimholt

Lennard

Swarringin

Commission affirms 2-1 PTD for back surgery

 Kevin Willems v Upland Trucking

Release Date 4  8 2021

Venue:  Jackson County

Summary: Commission affirms PTD award for back injury treated with surgery and spinal cord stimulator.  Claimant had a 1980s back surgery also involving the lumbar spine.  Claimant alleges he needed to lie down at unpredictable intervals and required narcotics  due to back pain.  A dissent felt claimant's capacity to sell real estate was inconsistent with his claim of PTD. 

Second injury fund offered no evidence to support its defense that claimant had sought benefits in another state. 287.220(12). 

Cast:

Siedlik

Stang, atty

Lobdell, atty

Koprivica

Logan (psych)

Fevurly

Drieling

Cordray

Statutory employment relationship in 287.040.2 prevents tort claim

State ex rel Beutler Inc. dba George J Shaw Construction et al v Hon. Sandra Midkiff

Release date:   April 6, 2021 (Mo Supreme Court)  (2016 date of accident)

Summary:  McArthur was injured on a construction site and sues in tort and subcontractors  asserted statutory employment defense under 287.040.2.  The court made a preliminary writ permanent and reversed the circuit court which would have allowed the action to go forward.  the Supreme Court in a 6-0 sustained the writ of mandamus pursued by   Shaw and Henderson as they were immune from liability in the underlying negligence claim. 

Claimant alleged an injury when his head hit the ceiling of a cab, which he asserts was caused when Henderson allegedly dumped an "oversized" load of excavated material in the truck.  

The circuit court found an exception that a defendant was a for-hire motor carrier operating within a section 390.020 commercial zone.  The court found 287.040.4 provided an exception only when the claimant is in a relationship subject to the 390.020 provision and not a relationship between other parties  upstream.  The court notes it is "inescapable" that the statutory employment chain applies to subcontractors and subcontractors of subcontractors.  

The court rejected a constitutional challenged that 287.040.2 waives a constitutional right to a jury to determine the rights involving third parties:  "the exclusive remedy provision is not limited to claims against direct employers ..."

Claimant fails to prove accident that he hit his head on a truck and caused brain damage

Mark Hundley v Conagra

Release Date:  3/31/2021  (Accident date:  2014)

Venue:  Boone County

Plot Summary:  Commission affirms a denial of a claim based on a defense of failure to prove accident when claimant alleges he hit his head when he was a restrained driver wearing a hard hat and his seat suddenly moved forward causing him to his his head.  

A defense expert contends there was no evidence he sustained a head injury and complaints  of unsteadiness more likely could be attributed to non-traumatic diabetic neuropathy and left visual defect was more likely due to diabetic condition than a brain injury. Claimant's expert based opinions on a flawed medical history that the hard hat was shattered.  

A dissent felt claimant established an accident but failed to prove injury by accident due to equivocal medical opinion about the cause of any traumatic brain injury. 

14-094684 

Cast

Young, ALJ 

Netemeyer, atty

Neumeyer, atty

Shoemaker

Shah

Silverman

Peeples

No award for disputed medical bills without notice of need for care

 Justin Kent v NHC Healthcare

Release Date:  2-2-2021  (Accident date Dec. 2008)

Venue:  ED   108667

Plot summary:  Claimant sought a claim of PTD benefits, past medical bills and TTD and he was awarded PPD only.  He appealed.  The court affirms and found sufficient evidence to support a PPD award and no foundation of notice of a need for medical care to award the medical bills before he proceeded to have a microdiscectomy and later a fusion.   The ALJ had excluded various expert reports used in conjunction with a disability claim. 

The ALJ awarded 35% to the spine.  It note: 

"Only after his termination by NHC Healthcare did Kent embark on a long, expensive, and at times questionable path seeking medical treatment for back pain Kent associates with his workplace injuries. Kent’s journey involved multiple physicians and medical professionals offering varied diagnoses and treatments. The record unambiguously shows that at no time while Kent sought medical care and treatment from Dr. Parks or anyone else, did Kent make any demand on NHC Healthcare or notify NHC Healthcare of his desire to continue medical treatment with these professionals. To the contrary, the record clearly shows that Kent intentionally declined to notify NHC Healthcare of his intent to seek continuing medical care for his reported back pain following his termination of employment. The record supports the Commission’s finding that Kent knowingly incurred medical care and treatment after his March 2009 termination at his own expense. See Section 287.140.1. The record reveals that Kent did not request any additional medical treatment from NHC Healthcare because he did not think 24 NHC Healthcare would assist him. Whether Kent was correct in his assessment of how NHC Healthcare might react to a post-termination request for medical care is strictly a matter of speculation and inconsequential to our review as the record before us clearly shows Kent never asked for medical treatment from NHC Healthcare after March 2009. Nevertheless, Kent argues the Commission is obligated to order NHC Healthcare to pay the medical expenses Kent incurred while directing his own course of treatment because NHC Healthcare had notice of his need for additional treatment. We are not persuaded."

No SIF benefits when failure to prove aggravation by prior non-compensable condition

 Tamara Polston v State of Mo. 

Release Date:  2-11-2021 (Accident date 3-10-2015, injury #2)

Venue:  Callaway County

Plot Summary:  Claimant was assaulted and hurt her knee, settled the case with the employer, and sought benefits against the Fund.  The ALJ found claimant sustained a compensable knee injury but failed to show she was PTD due a combination of prior conditions and noted she was not credible regarding her limitations, symptoms and physical and psychiatric conditions and did not  introduce credible evidence that her non-work prior psychiatric condition significantly aggravates or accelerates her primary knee condition to satisfy the statutory burden of proof.  

A dissent felt claimant was PTD and found credible that claimant had bipolar disorder and PTSD. 

15-013956

PolstonTamara15-013956-02-11-21.pdf (mo.gov)

Cast:

Farmer, ALJ

Dr. Daniel

Dr Cohen

Dr. Oliveri  

Dr. Pribor

Concussive injury supports partial disability despite memory lapse who it occurred

Terry Humphrey v Ruan Logistics Co. 

Release Date:  2 5 2021  (Accident 9/6/2012)

Venue:  Newton County

Plot summary:  medical fee dispute

The ALJ awards 12.5% PPD for a concussive injury with memory problems when claimant struck his head on a truck safety mirror while walking around  a truck. The ALJ rejected an expert who concluded the accident could not happen the way it was alleged, even though claimant could not fully describe it due to memory loss.  

HumphreyTerry12-07815302-05-21.pdf (mo.gov)

Cast:

Fisher

Webster

Koprivica

Appelbaum

No combo, no total in SIF claim

 Robert March v Millbank Mfg.

Release Date:  Feb. 23, 2021  (D/A  May 1, 2015)

Venue:  Lafayette County

Plot Summary:  Claimant denied SIF PTD claim based on a failure to prove a prior lower leg condition did not aggravate or accelerate work related carpal tunnel or that  disability wasn't caused by post-accident worsening. The Commission affirmed a denial on the failure of the burden of persuasion that claimant's inability to work was not because of the prior leg condition alone, and describes how the employer provided accommodations.

Cast:

Siedlik

Kenter

Wilson

Note:  A majority criticizes the original opinion for grammatical errors and confusing language. 

Court remands to address whether prior condition reached MMI

 Bruce Krysl v Treasurer of MO

ED 108958

Venue Eastern District

Release Date:  Dec.  22, 2020

Plot summary:The court ordered the Commission to reinstate benefits of PPD for a 2013 accident under section 2.  The SIF argued it should be able to reassert its defense that claimant was not at MMI, a position that was ignored as moot by the original commission decision.  The court found the commission  did not address this issue consistent with its mandate. 

The court re-examined its original mandate violated due process by not allowing the Commission to address the second defense.  The court noted the error due to poor briefing:

"The Fund’s failure to alternatively request its desired relief upon reversal in its Krysl I brief and its failure to argue the opinion in Krysl I was erroneous in its Rule 84.17 motion has resulted in superfluous administrative and appellate proceedings. We admonish the Fund to include all arguments in its briefings and draft Rule 84.17 motions carefully to include all perceived errors with this Court’s opinions in the future. Had this appeal involved an issue less sacrosanct than due process the outcome may have been different." 

Judicial estoppel not applied despite inconsistent statements

 Michel Ziade v Quality Business Solutions Inc.

Release Date:  Feb. 9, 2021  (July 2015)

Venue:  WD 83763  

Plot summary:  Claimant (Michel) is murdered and the murderer (Parker) confessed it was over a dispute about pay with FCMT.   The surviving spouse/company owner of FCTM  (Kristen)  named as employers FCTM and QBS.  FCTM did not appear at the hearing  

QBS defended the case that claimant was not an employee and the claim was also precluded under judicial estoppel. The ALJ and commission awarded benefits, and found an employment relationship. The Commission disavowed the opinion the DWC could not address issues of estoppel.  The ALJ found a service agreement that made QBS a co-employee of FCTM employees.  

The court noted the Commission improperly concluded it lacked jurisdiction to consider matters of res judicata or collateral estoppel.  QBS argued judicial estoppel and claimant cannot proceed on the theory that Michel was in the course and scope of employment to recover comp benefits when she alleged in an earlier motion for summary judgment that he was on a personal errand.  

The court noted the summary judgment in federal court was not decided on the issue if claimant was on a personal errand or not but on the issue of coverage, and FCMT had dropped its general liability coverage 3 months prior to the death.  

The ALJ rejected a 'wild' defense that the death was purely personal because of a private loan or that Parker wanted to kill Michel because he was while.  No additional evidence was introduced to support either theory.   

Commission rejects PTD claim for treatment after retirement

 Mark Lynch v Anheuser Busch 

Date Feb. 2, 2021  (Accident date Jan 30 2009)  

Venue:  STL

Plot Summary:  Claimant fails to prove his injury by occupational disease (carpal tunnel) combined with pre-existing conditions when claimant retired in 2009 (last date of employment), he had knowledge of carpal tunnel at time of his retirement, and two years later sought care.  Dr. Rotman felt he had neuropathy unrelated to a work related carpal tunnel.  The employer settled the case at 20% of the wrist.  A dissent would have awarded PTD on the finding that claimant had some unidentified problem with his wrists when he was still working.

The ALJ notes the proper date was the last date of employment and found the SIF offered no evidence on a notice defense and no evidence to contest the extent of disability. 

Inj. No.  09-101188, 09-039485

Cast

Teer, ALJ 

Woiteshek

Rotman

Tatlow

Morgan

Campbell

SIF Total denied based on nonqualifying priors

 Gregory Phelps v Gideon 37 School District and Treasurer of MO

Release Date:  Jan 25, 2021 (April 14, 2016)

Venue:  New Madrid County

Plot Summary:  Claimant injured a left shoulder while performing a repair of a bus and lost control of a ratchet.  Claimant, 67, settled with employer and sought total benefits against the fund.  His expert found him a total based on prior neck, back, respiratory combined with the new shoulder condition. The ALJ found prior conditions were not qualifying or qualifying and not of sufficient threshold disability.  The Commission affirmed the denial 2-1 based on a difference of opinion whether claimant sustained his burden of proof and how to apply the law.  

Cast

Young, ALJ 

Edwards atty

Williams, atty

Mall

Volarich

Shea

Court rejects constitutional challenge to 1 year deadline for medical fee dispute

 Chesterfield Spine Center v Best Buy Company, XL Ins. America

Date of Release:  Jan 12, 2021 (April 2013 accident)

Venue:  Western District

Plot Summary:  Court affirms a  finding that medical provider's fee dispute was time barred and finds multiple constitutional challenges to the medical fee dispute statute and state rule  without merit in a 7-points of appeal.

Employer authorized services but cut the bill about $75,000 for orthopedic after a bill review from Fairpay.  The ALJ found the dispute was time barred  when partial payment and notice was provided by June 2016 and an application was filed in August 2017.  

Section 287.140 has a 1 year statute after first notice of the dispute. The Court found there was notice provided of the dispute.  The court rejects the constitutional argument by the colorable assertion that the time for filing disputes is governed by the date of accident.  In this case the accident was 2013, the effective date of the statute was January 2014, and the medical bills in question occurred in 2015 and there was no retrospective application of the law between the provider and the carrier.  The court rejected other constitutional challenges.  

WD 83757

Commission awards penalty for post-injury misconduct.

 Anita Paxton v Little Sisters of the Poor

Release Date:  1-5-2021

Venue:  St. Louis City

Plot Summary:  The claimant was a registered nurse who fell on ice in a parking lot and hurt her ankle and then fell again and hurt her elbow.  She was terminated while on light duty restrictions.  Claimant had been disciplined for issues related to her job duties related to the secure control of and misdistribution of medication. The doctors further disputed whether all of claimant's medical conditions flowed from the accident.  

The Commission reverses a denial of the misconduct defense and finds no requirement the misconduct must flow from willful conduct.  

Cast

Carlisle

Hennessey

Amsler

Volarich - 40% ankle

Krause  5% fracture 

Notes:

The ALJ found Dr. Volarich more persuasive that the accident caused both a fracture and peroneal nerve injury. the ALJ awarded 25% for the fracture and 7.5% of the elbow.  The ALJ found the employer failed to show misconduct to disqualify claimant from temporary benefits.  The ALJ noted the term misconduct is not defined and that examples of misconduct to disqualify someone from unemployment benefits is not dispositive.  The ALJ found the employer's witnesses were "less than credible" and notes the absence of harm or intent from any alleged accident.

The Commission modified the award and found the claimant's admitted conduct to be irresponsible, dangerous and unlawful and the ALJ improperly added a requirement of "intentional" misconduct to trigger the penalty provision.  As such,  the Commission noted the award of $12,605.85 was erroneous.

A dissent would not have supported an order to repay the benefits and would have not awarded a penalty without proof of an intentional act or proof that the misconduct itself must have some causal relationship to the injury.  

Judge orders benefits and rejects arthritis causation defense

 Carol Caldwell v Unilever USA, Inc.   

Release Date:  Jan 5, 2021  (Accident date Aug 20 2017)

Venue:  Scott County

Plot Summary:  Commission affirms temporary award for left finger injury  in which the employer paid no benefits and disputed accident and causation.

Inj. No.  17-070606

Cast

Byrne, ALJ

Heckemeyer

Vanderbeek

Schafly

Kutnik

Discussion: Claimant reports her finger became "stuck" at work.  She was diagnosed with a partial tear of the sagittal band and told by another doctor she had arthritis, The ALJ found claimant claimant's work activities caused an "accident," and her medical condition required further treatment. 

Choking driver eating snack awarded benefits in third "bite" at the case.

 Gary Boothe Jr. v Dish Network  

Release Date:  Dec. 29, 2020    (Accident July 23, 2017)

Venue:  Southern District

Plot Summary:  A driver in a company truck loses control of his truck after he chokes on a breakfast sandwich in violation of a company rule not to eat while driving.    The Court reverses a denial of benefits on a failure of proof that the accident arose out of and in the course of employment and finds the driving to be an identifiable job related risk for someone employed to make service calls and risk of accidents on the road to be the hazard which caused the injuries and not the hazard of choking on food. 

Claimant had left en route from his home to a job and stopped 6 miles from his home to pick up a sandwich and some smokes, blacked out, crashed, and hurt his neck and back.  The employer had a rule to avoid eating while driving to reduce the risk of distraction. 

The ALJ  (Mahon)  awarded benefits subject to a 30% safety penalty deduction.  The Commission, in a 2-1 decision, reversed, and found claimant failed to identify a risk source to explain his cervical-thoracic, injury, lumbar strain, concussion, right flank and chest contusions.  The Court found no penalty and found the event to be compensable. 

The issue on appeal is confined to the application of subsection b of 287.020.3(2)  and found the "real" risk was the road conditions and not claimant eating.  The activity that caused the injury was driving and crashing the van and while choking caused the accident the van accident caused the injuries.  The coughing did not cause the injury -- the physical violence to the body structure.  Coughing was not an unexpected traumatic event.  There was no evidence that claimant when he was not working maintained the same type of travel "schedule."     

The court also makes the factual finding that claimant was on a "strict" timeline.  It is not clear how this represents any occupational risk when claimant was on the "first" call of the day.  There were no facts that claimant was compelled to eat while driving for personal comfort to meet a work-related schedule.  

The court further found a basis for a safety penalty applies only if the accident was caused by the failure to follow the rules.  In this instance, the violation of the rule not to eat in the car was not the cause of the accident because the cause of the accident was not choking but crashing into a pillar, according to the majority.  It is difficult to distinguish the argument as anything other than positional risk when there was no evidence about increased risks of  the vehicle, or conditions of the road, which caused the accident, but for the fact at that location claimant passed out by doing something he was told not to do.  

A concurring opinion stated it would reach a different conclusion if claimant chocked to death or had injuries from the choking itself.  

A dissent found a failure of proof of a work-related hazard.  

The Commission reports the amount in dispute was about $89,000 in benefits, including more than a year of claimed temporary disability benefits. BootheGary17-05399610-17-19.pdf (mo.gov)

Cast:

Mahon, ALJ 

 Platter, atty

Allmayer, atty