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)