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.