56% prior BAW fails in SIF recovery becuase of nonqualifying knee condition

 Larry Obermann v BRM

Release date:  Sept. 13, 2022

Venue:  Cape Girardeau

Summary:   The Commission in a 2-1 vote reverses an award of second injury benefits for PTD in which experts included  nonqualifying pre-existing medical disablity to assess fund liability. The Commission found the ALJ exceeded her authority to exclude consideration of nonqualifying medical conditions based on claimant's testimony rather than expert opinon. 

Klecka v Treasurer of Mo as Custodian of Second Injury Fund, 644 S.W.3d 562 (Mo banc 2022) interpreted 287.220.3(a) concluded the statute only allowed recovery against the second injury fund when permanent total disability resulted a combination of disablity attributable to the employee's primary injury and one or more pre-existing disabilities that qualify under enumerated criteria in 287.220.3(a) which requires, among other things, prior disability that equates to 50 weeks or more. 

In this case claimant introduced evidnece of pre-existing disablity of multiple prior conditions which total 56% BAW which was not contested.  Part of the total disablity included a prior left knee injury that represented by itself 17 weeks which failed to satisfy the 50 week threshold.  

The experts never addressed that the conclusions that claimant was unemployable, even without

consideration of the knee.  The ALJ found the knee (<50 weeks) and anxiety did not impact functional capacity and did not bar a finding of PTD.  She stated further that the knee and ankle could also be 'stacked' to meet threshold although it was neesary to each that decision.   

I find the credible evidence supports the conclusion that Employee's 1995 left knee injury did not negatively impact his residual functional capacity to any significant degree, and as such I find that excluding Employee's 1995 non-qualifying left knee injury from the analysis does not impact the ultimate conclusions regarding his employability. To conclude otherwise would lead to a nonsensical result in light of Employee's qualifying preexisting disabilities of 50% of the right ankle, 40% of the left ankle, 32.5% of the right knee and 22.5% of the right shouldWithout expert opinion, the ALJ could not reach that decision that the knee was cumulative to the conclusion cliamant was unemployable.

The dissent argued since cliamant denied symtoms to the knee, the ALJ properly concluded the knee was not a factor to her determination of PTD.  The dissent would have allowed a take-back rule so claimant could take the case back for another try to offer additional expert opinon to track Klecka because it was unfair to deny PTD benefits, a position being asserted at the Supreme Court in multiple current appeals to be argued later this month.  

ALJ Young

Chris Weiss

Keyla Rhoades

Experts:  Solman , Mall, Berkin Volarich 

I find the credible evidence supports the conclusion that Employee's 1995 left knee injury did not negatively impact his residual functional capacity to any significant degree, and as such I find that excluding Employee's 1995 non-qualifying left knee injury from the analysis does not impact the ultimate conclusions regarding his employability. To conclude otherwise would lead to a nonsensical result in light of Employee's qualifying preexisting disabilities of 50% of the right ankle, 40% of the left ankle, 32.5% of the right knee and 22.5% of the right shoulder

lify

based on the enumerated criteria under § 287.220.3(a)a. Klecka v. Treasurer of Mo. As Custodian of the Second Injury Fund, 644 S.W.3d 562, 566 (Mo. banc 2022)

Claimant who delayed case with unreasonable conduct denied fees and costs

 Donnell v Tran State Airlines

Release Date:  June 14, 2022

Venue: Eastern  ED 110126

Decision:  Commission did not abuse its discretion to deny fees and costs under 287.560 based on factual  findings that both parties engaged in unreasonable antagonist conduct. Claimant contends defense failed to comply with a 2012 award for future medical treatment without a defense in a five year delay in the Remand Hearing. 

The Commission  awarded $791,740 as a commutation of a future medical award.  The respondent did not object to the Commission's authority to commute the future medical award, but the record did not contain the request for commutation of treatment related to an  ankle injury asosciated with RSD or CRPS.  The Commission found the payment of PTD had been  timely and denied the request to commute PTD benefits.  The employer had complied with the duty to provide future medical pursuant to the award until the claimant filed a motion for commutation and stopped benefits after 2014.    

Odenwald, Hon.

Hoffman, atty

Lecinski, atty 

Wright, atty (at Ct of Appeals)

Levy, atty (at DOLIR)

Appeal fizzles to explain "now, what really happened...."

 Sherry Edwards v FedEx Ground

Release Date:  June 9, 2022

Venue:  Jackson County

Summary:  Commisson affirms a denial of benefits of an alleged accident when claimant fell off of a stool and alleged various orthopedic injuries.  The ALJ found defense expert more credible that the accident may have been a  contributing factor and aggravated degenerative conditions but was not the prevailing factor and found claimant's psychological conditon better explained by an unrelated somatic disorder.

Inj.  No.  17-102900.

Claimant sought to introduce additonal evidnece with the commission premised on a request to explain "what really happened."  The Commission found no basis to accept additional evidence and noted the employer had not requested dismissal of the application.  

Zimmerman 

Lingenfelter

Fevurly

Barnett

Worker who stops and pivots at work fails to prove comp claim

 Jamie Overstreeet v Tamko Building

Release Date: Jan 27, 2022 (accident date Feb. 12, 2018)  

Venue:  Southern District  

ummary:   Court of appeals affirms ALJ/Commisson denial of benefits on claimant's failure to prove bilateral patellofemoral knee pain symdrome and meniscus tear arose out of employment when his knee poppped when he was walking at work and changed directions quickly.

No SD 37171

Discussion.  Claimant argued that the Commisison misapplied the law on  section 287.020.3(2)(b) and that he identified various risk factors to show the injury was compensable including his need to pivot to recover a work related item, the uneven slope of the injury location, the use of protective foot gear, and the need for work to require him to mentally think more than his non-employment life.  Claimant failed to show that the risk was not one in which the worker would not have been equally exposed in his non-employment life as he acknowledged in normal life he often walked and often changed directions. The court notes in a foot note that claimant retracted earlier statment that he was walking at a slighlty faster pace.  A superivsor testified the asphalt lot was typical and similar to many of the community lots.

The court noted it was claimant's burden to proof to show an injury arises out of and in course of employemtn including to show it does not come from a hazard or risk unrelated to the employemnt to which workers would have been equally exposed outsdie of an unrelated to the employment in normal nonemployment life.