Mo. Workers' Comp Alerts

Illinois sanctions employer who overpays benefits

2012-02-06T13:15:00.000-08:00

An employer over-pays benefits to a comp claimant but after ten years of litigation the employer is found liable more than $60,000 in penalties and attorneys fees, according to a Feb. 2, 2012 decision from the Illinois court of appeals (first district).

Home Depot refused to pay an award because it contends it had already "over-paid" the amount that was owed. This is a case involving a ten year dispute flowing from a 2001 accident in which the employer did not pay an award in 2005 of $22,798.54 claiming it did not owe any thing because the employer had overpaid benefits previously and had a "credit" about $10,000 more than the award. The court of appeals, however, affirmed a circuit court judgement in 2010 involving the original award plus over $60,000 in interest and attorneys fees (mostly attorneys fees)

The employer may have a common law remedy for over-payment in circuit court but the court had no statutory authority under section 19(g) for an off-set. There is no authority under the Act to allow a credit for overpayment, recoupment, restitution, or reimbursement. The employer filed a motion to dismiss under section 2-615 or 2-619 and argued it was not attempting to recover the amount of its overpayment but merely seeking to offset the creidt against the benefits awarded. The fact that Home Depo inadvertently overpaid on the benefits is not something for which section 19(g) provides a remedy, according to the court of appeals. Naresh Patel v Home Depot, 2012 Ill App. Lexis 72, 2012 Il App (1st) 103217.

Classifying claimant as independent contractor doesn't stop jurisdiction

2012-01-11T14:43:00.000-08:00

Claimant received an award for permanent and total disability benefits following a 2003 accident in Missouri. Claimant states he spends most of his time laying in bed or a massage chair and taking daily medication for stabbing pain as a result of his back injury and two-level fusion. The court noted as a result of liberal construction of a 2003 claim an independent contractor agreement is inadequate to specify a Nebraska forum for purposes of Section 287.110.2 when the accident occurred in Missouri.. The court noted the employer had originally argued claimant was an independent contractor and did not preserve its choice of law argument specifically interpreting 287.110.2 exception: "unless the contract of employment in any case shall otherwise provide. " The Commission opinion notes the employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits.

The evidence was insufficient under an owner-operator defense to establish claimant "owned" the truck, because claimant had limited rights to use the truck and could not convey it. Dr. Volarich's restrictions, including the boilerplate need to "rest when needed" supported a PTD award. The case is Rader v Werner Enterprises, 2012 Mo. App. Lexis 24, ED 95905 (Jan. 10, 2012)

Atty: Lindsay, Thurmer, Barnard
Experts: Irvine, Volarich, DeGrange, England

Claimant fails to prove blood clot from twisting his knee

2012-01-11T14:12:00.000-08:00

Claimant twisted his knee in 2004, he treated for a strain and about 7 weeks later he was diagnosed with DVT. The Commission affirmed an award that claimant established his work accident caused a strain, but the accident was not the substantial factor in his DVT. The Commission noted multiple causation opinions and relied upon the opinion of the only hematologist who felt the accident was not work related noting claimant's predisposition for blood clots due to a protein c deficiency and development of a second blood clot independent of the work injury. The Commission noted claimant violated briefing rules by submitting a voluminous brief with exhibits and evidence not offered at the hearing. The Commission issued a separate opinion and noted that the ALJ cited the wrong accident date in the opinion and made "other problematic comments." Hahn v Site Oil, etal, 2011 MOWCLR 259 (12-20-11).
ALJ Denigan
Atty Gerritzen
Experts: Lattimore, Poetz, Rende, Ludwig, Blinder

"Calcified" surgical findings hurt finding of an acute accident

2012-01-11T13:29:00.000-08:00

Claimant had a significant prior history of multiple back injuries, surgery and com settlement, and he even waited months before seeking any treatment but he still persuaded an administrative law judge he had a new work-related problem. The commission, on appeal, reversed the award of benefits in a divided 2-1 opinion.
Claimant obtained a hardship award involving a 2008 accident in which claimant alleges he injured his back moving a pallet. Claimant waited about 6 months to obtain treatment and provided no initial history of a work-accident. About 10 months after his accident he underwent surgery for a herniated disc with surgical findings of calcification and scarring. Dr. Montone, the treating surgeon, concluded after the operation that the condition was work related. The Commission in a 2-1 decision reversed an award of benefits, noting the conflicting histories whether claimant sustained an accident or not, a six month delay before seeking treatment, the role of a subsequent accident. Claimant had a previous lumbar fusion at a different level and seven previous worker's compensation claims involving his back. A dissenting judge found calcification of the disc not dispositive and would have affirmed the order of unpaid TTD benefits. Johnson v Landair Express, 2011 Mo WCLR Lexis 263 (Dec. 28, 2011).
ALJ: Allen
Atty: Yarwood, Slattery
Experts: Armundson, Montone
Treater: Montone

Editorial: Ten Cases in 2011 for Employers to worry about

2011-12-16T14:51:00.000-08:00

Worker's compensation reform may not have had the effect many people intended.   Whenever the court of appeals comments on legislative intent it based on "strict construction" reminds me of the  scene in Annie Hall when a professor in front of Woody Allen is discussing the true intent of Marshall McLuhan's work when Allen pulls McLuhan out of no where to state  that's not what he meant at all.

1. Occupational Disease.
         Worker's comp is not an exclusive remedy to worker's compensation, based on strict construction.
KCP&L Greater MO Operations Co. v Hon Cook, 2011 WL 403116 (Mo. App. 9-13-2011).

2. Prevailing factor doesn't apply to medical treatment issues.
          Surprise! An employer who admits accidental injury must argue now whether a treatment is reasonably related. Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011). Gordon, we hardly knew ya.

3. Claimant dies but the checks keep rolling on.
          The legislative "fix" didn't fix Schoemehl to anyone having a pending claim. Goad v Treasurer of State-Second Injury Fund, 2011 WL 5838699 (Mo. App ED Nov. 22, 2011). The defense that claimant had to die before the "fix" for benefits to "vest" doesn't fly.

4. Subjective v. Objective, Objective now loses.
         The legislative fix to give objective evidence more weight now goes away without "objective" tests to measure "subjective pain." Huh? Bottom line: those FCEs are a lot less important now to define work restrictions. Reicardt v Industrial Sheet Metal Erectors, 2011 MO WCLR LEXIS 226 (11-10-11).

5.   Getting out of the car is "on duty"
         Parking lot defenses based on Hager are getting weaker every day, when the Commission concludes a claimant on property is now "on duty" to invoke benefits. Wilson v Buchanan County, 2011 MO WCLR Lexis 206. That even means jurors, too. appealed 11-14-2011, WD 74517.

6. Video is not a statement , but turn it over anyway.
         A claimant can now obtain video through a subpoena, even though the same video was excluded as a statement to be produced under statutory reform. State ex rel Feltz v Bob Sight Ford Inc, 341 S.W.3d 863 (Mo. App. WD 2011). Employees up to no good can work on their excuses a lot sooner.

7. Penalties now include bills.
        Parties behaving badly can be subject to penalty based on the cost of bills since bills are compensation. Hornbeck v Spectra Painting, 2011 WL 38978546 (Mo. App. ED 95680 9-6-11).

8. Notice after diagnosis (more or less)
         Claimant may not have duty to notify an employer until her own expert tells her the condition is work-related, even if she told her doctor she "did a lot of typing" and underwent EMG studies months earlier. The ghost of Allcorn continues to haunt. Beckton v AT&T, DOLIR 6-9-11.

9. Green card defense.
        Immigration status doesn't stand in the way of collecting comp benefits. Vega-Rivera v Hyatt, DOLIR 7-19-11.

10. Personal Comfort Doctrine.
       The Supreme Court is to take on whether falling out of shoes while making coffee at work is enough for benefits in Johme v St. John's Mercy HealthCare, 2011 WL 5056300 ED 96497 (Mo. App. 10-25-11) and perhaps resolve whether Pile defines the standard anymore how to assess equal exposure.

287.190 "subjective medical findings"

2011-11-21T13:45:00.000-08:00

Commission disregards FCE based on subjective pain complaints
Statutory reform in Missouri requires that objective findings trump conflicting subjective findings. When an FCE concludes claimant can work but claimant state he can't, does the FCE "objective" findings control?

In the case of Reichardt v Industrial Sheet Metal Erectors, DOLIR 11-10-11, 2011 MOWCLR 226, the 60 year old claimant appealed an award of permanent partial disability benefits against the second injury fund and asserted he was unemployable because he spends 2-3 hours each day in a recliner to control his pain in part due to pre-existing conditions including prior surgeries to his neck and back.  An FCE and other doctors concluded he was employable. Claimant's work-related injury installing a roof and subsequent back surgery resulted in some permanent restrictions resulting in permanent partial disability. The ALJ concluded claimant was employable, and the 287.190.6(2) required the objective findings regarding work restrictions to control over restrictions from claimant's expert based on symptoms that claimant must lie down regularly due to narcotic use and chronic pain.

The Commission disagreed.   The Commission concluded the FCE is not an objective medical finding "as to pain" and there is no objective medical findings as to the "severity of pain." The Commission found no conflict on the evaluation of pain and concluded claimant was unemployable based on pain complaints, modifying the award against the SIF from permanent partial to permanent total. The Commission further rejected the reliance of the SIF's expert that a prior neck and back surgery were not disabling because claimant did not identify any prior accommodation.

The case imposes a new rule of construction which essentially nullifies 287.190.6(2).   The case creates far broader discretion to consider subjective complaints of a claimant regarding his capacity to work to award benefits when claimant has medical restrictions which by themselves do not prevent employment in the open labor market.   It is not clear whether the SIF presented any evidence how the functional capacity exam might limit job activities because of pain.   The suggestion that the Fund (or the employer) must utilize some test other than an FCE to negate such testimony about pain leaves little realistic prospect that objective findings have any greater evidentiary weight.
ALJ Kohner
Atty: Christiansen
Experts: Lalk, Lichtenfeld, Weimholt, Gonzalez
Treaters: Kennedy, Graham

Jurisdisdiction cases

2011-11-17T14:05:00.000-08:00

Comp Commission retains primary jurisdiction to determine accidental injury making summary judgment premature
The employer lost its summary judgment in a suit by an employee involving an injury at work based on a plain error review by the court of appeals. The claimant had a pending worker's compensation case which had not resolved whether claimant had an accident that was the prevailing factor in his injury. The court concluded summary judgment would result in manifest injustice to the claimant because it would prematurely end any civil suit on the merits when the defense was based on a question of fact regarding whether there was an accidental injury to be determined by the commission. The case is Cooper v Chrysler Group, No. ED 96549 (Mo. App. 12-13-11)
The claimant filed a worker's compensation claim which required proof that the accident was the prevailing factor in his injuries and that any treatment arose from his accident. The dispute involving the 2007 accident arose whether or not a 2008 surgery was work-related. The employer admitted that claimant sustained a workplace accident but disputed that surgery was necessary as a result of the fall. The claimant filed suit and agreed the accident was not the prevailing factor in his injuries. The trail court had affirmed summary judgment in the employer's favor on the ground that plantiff's exclusive remedy was under worker's compensation law.

The eastern district indicated that the circuit court violated the primary jurisdiction of the Commission to make the decision whether claimant sustained accidental injury. The primary jurisdiction doctrine provides the courts will not decide a controversy within the jurisdiction of an administrative tribunal until after the tribunal has endered its decision. A claimant may file a tort claim while a case remains pending before the commission but the courrt abuses its discretion to render summary judgment on the merits.
Judge Crane concludes if the Commission "does not find an accidental injury, plaintiff should then be able to pursue his civil cause of action." Judge Romines in a concurring opinion indicated that legislative reform narrowing the definition of accidental injury inevitably resulted in more civil suits. "Clearly the legislature prefers jury trials." Judge Romines' also authored the recent controversial opinion in Johme v St. John's Mercy Healthcare, pending before the Mo. Supreme Court, 2011 Mo. App. LEXIS 1412 (SC 92113, appeal transferred 10-23-11).

Cooper on its merits is fundamentally a procedural issue that summary judgment is premature based on the primary jurisdiction doctrine. The case facts, however, contain several warnings for employers. Denying cases in comp may result in a civil tort case. This case goes one step further. The case facts warn employers that even admitting accident and providing benefits comp does not preclude a civil case when a dispute arises regarding medical care.

Plaintiff, in this case, pursues benefits and claims work benefits on the premise that work is the prevailing factor, and then in a civil case denies work in the prevailing factor. This is similar to the pleadings in State v KCP&L Greater Mo. Operations Co. v Hon. Cook, WD 73462 (Mo. App. 2011). In that case claimant lost a summary judgment motion in which claimant denied his work was the prevailing factor in his mesothelioma and the court in a landmark decision concluded post-reform changes abolished exclusive remedy defenses in occupational disease cases. Cooper does not go that far on the merits.
The need for future medical treatment, such as a surgery, is not a determination of prevailing factor in the definition of accidental injury but whether the treatment is reasonably required as defined by 287.140, according to Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 6-14-2011). Tillotson is not mentioned in the opinion.
The Cooper case fundamentally involved a fight over a surgery, and not whether claimant had an accident or needed at least some treatment related to an accident, as he had received physical therapy.

The determination required by the Commission is not as simple as suggested by the Cooper opinion.

Determining what accident injury means not may be more than whether claimant had an injury to his back (this appears undisputed) or that he needed some care (also apparently undisputed) but that claimant's accident caused a surgical condition. The opinion does not indicate if there was conflicting evidence on prevailing factor over fight over the role of pre-existing conditions, other accidents, treatment modalities or whether the issue arose simply over a denial of requested care. The Cooper opinion indicates claimant can simultaneously pursue tort and comp remedies but leaves unanswered the impact of election of remedies when claimant settles a comp case for a back injury but claims in tort he should have received something more. The case leaves the employer in the odd posture of trying to convince the Commission that work is the prevailing factor (which claimant now denies) but maintaining its defenses to dispute the surgery.

Attys: Eric Holland, Maureen McGlynn

No Exclusive Remedy for Occupational Disease Claims
Just when Missouri business was feeling good about things after comp reform, the court of appeals has now announced open season and allows claimants with occupational disease cases to go after their employers in circuit court instead of comp. State ex rel KCP&L Greater Mo. Operations Co. v Hon. Cook, WD 73462, filed Sept. 13, 2011, http://www.courts.mo.gov/file.jsp?id=49158 has profound implications for anyone running a business in Missouri.

Claimant's mesothelioma was diagnosed more than 2 decades after his employment ended. He states his exposure occurred while working but he denies his work was the prevailing factor. Claimant proceeded in tort on negligence and premises theories that his employer breached its care not to expose claimant to asbestos. The employer filed for summary judgment, and lost, on its argument that the exclusive remedy existed under worker's compensation.

What did the phrase "accidental injury" mean in 287.120.2 which provides comp as the exclusive remedy. The court found since claimant did not have an "accident" he could proceed in tort because exclusive remedy only applied to accidents. The employer conceded claimant did not have an "accident," as defined by the statute. The court of appeals affirmed the denial of summary judgment. The majority claims 2005 reform changed everything: it rejects a broader definition of accident in Staples v A.P. Green Fire Brick Co., 307 S.W.2d 45 (Mo. banc 1957) which incorporated occupational disease in the definition of accident for more than half a century.

Two dissents indicate the majority allows the claimant to elect his forum whether he wants to be in front of the Division or a jury to decide compensability. The dissenters find no legislative intent to remove occupational disease from the Act, or to decouple the Act's coverage from the Act's exclusivity.
Claimant worked for the employer for 34 years. He had originally named 15 other defendants in his asbestos-exposure claim, and settled or dismissed everyone else except the employer.

Jurisdiction to approve structured settlements
In 2004 the Commission awarded death benefits to a surviving wife and three children after a claimant died from asbestos. Seven years later the parties agreed to a settlement to pay a lump sum and future periodic payments. The Commission refused to approve the agreement claiming it lacked "jurisdiction." The employer appealed.

The court of appeals in Roth v J.J. Brouck and Co., ED 96708 (Mo. App. 11-15-11) concluded that the Commission had "authority" to approve the settlement by 287.390 which requires agency approval of any type of settlements. The Commission cannot avoid its duty to approve or disprove any settlement. The court notes that both the Commission and the state regulations conflate jurisdiction and authority, which are two separate and distinct inquiries. The case was remanded for the Commission to determine if the settlement comports with the statutory requirements, such as being in accordance with the rights of the parties.

Claimant sustained injuries when he slipped on a ladder fixing a pump to repair a hydraulic leak. He recovered benefits in comp and obtained judgment in a subsequent tort suit. The southern district reversed the judgment, noting claimant was a "classic" statutory employee and his activities did not fall within the "improvements" exception under 287.040 to avoid comp as an exclusive remedy. Sell v Carlisle Power Transmission, No. 29510 (Mo. App. SD 9-29-09) distinguishes when an improvement is not an improvement, finding that claimant's routine duties to maintain the defendant's plant was more "maintenance" than "improvements", which related more to capital and construction that improved value or income.

Election of remedies did not bar civil suit after settling with one party
Lonnie Lewis was a passenger when he was riding in a tractor trailer that overturned and killed him in 2004. Lewis operated the truck for Freeman, an uninsured employer, who had a contract with DOT Transportation. The Lewises' dependents received an award in 2010 for worker's compensation benefits against DOT Transportation as a statutory employer. The circuit court granted summary judgement in a wrongful death claim and found the dependents had made an election of remedies by collecting worker's compensation benefits under 287.280.1 The court of appeals found no election of remedies against Freeman, as claimant recovered comp benefits only against DOT, and allowed the wrongful action to proceed against the uninsured employer because they were two separate employers. DOT could subrogate against any civil recovery against the employer to avoid an "evil" double recovery. Lewis v Gilmore, Freeman, WD 72629, WD 72654 (Mo. App. 4-12-11).

In Thomas v Treasurer of the State of Mo, No. WD72432 (Mo. App. 12-14-10) the Court of Appeals found that the Commission erred that it lacked jurisdiction to consider an appeal filed within 20 days after an amended award, when the Commission found 287.610.1 barred the administrative law judge to issue the amended award to correct a judicial error in the computation of permanent partial disability. The Commission distinguished between judicial errors and clerical errors as the basis of its decision and found the administrative law judge had authority only to correct clerical errors. The court construed 287.610.1 to grant unfettered power to the administrative law judge to make substantial changes to an award to amend, modify, reinstate or dismiss the award within 20 days or until an appeal is filed with the Commission. The court finds the “plain reading” of the amendment referring to correcting “clerical errors” does not limit an ALJ’s authority correct such errors, but allows correction of such errors any time with the 20 days even after an application for review.

"None shall pass," warned an earnest knight from an old Monty Python skit that knew it was beat but kept swinging and made things only worse for himself as he lost more and more limbs. The same message was told to an employer who lost a dubious defense at the commission, and has been told by the Court of Appeals that its appeal of a temporary award isn't going to pass, either.

Brenda Bolen v Orchard Farm R-V School District, No. ED92007 (Mo. App. 6-9-2009) involved a claimant who alleged in 2006 she twisted her right knee, almost fell, and was told she might require surgery. The employee took the case to a temporary award in 2008 and the court ordered the employer to tender care. The employer asserted it owed nothing, as claimant provided notice on the 36th day, 6 days after the 30 day statutory deadline. In such cases, the employee must show lack of prejudice, a burden the claimant easily carried when the employer's own witness conceded no prejudice existed but that some prejudice could have theoretically occurred. The employer's own expert, Dr. Milne, concluded claimant needed treatment because of the accident.

The court of appeals quickly dismissed the appeal due to lack of jurisdiction, a point that has been well-established since the 2008 court of appeals decision in Norman v Phelps County Regional Medical Center, 256 S.W.3d 202 (Mo. App. SD 2008). The employer, represented by Evans & Dixon, argued that provisions in the code of state regulations allowed appeals, a point quickly dismissed that the state regulations cannot confer jurisdiction when it is not expressly granted by statute.

In Smalley v Landmark Erectors, ED 91861 (Mo. App. 4-28-2009),1 the Eastern District barred an employer from appealing a temporary award in a 2006 carpal tunnel case in which the employer denied all liability and claimed a previous employer was liable. The court discussed a judicially-created exception prior to the 2005 amendments that allowed an appeal of a temporary award for treatment where the employer claimed it was not liable or paying any compensation. Although the 2005 amendments did not specifically change 287.510, the section governing temporary awards, or 287.495, the section allowing appellate jurisdiction, the Eastern District found that allowing an appeal of a temporary award violates legislative intent to limit appellate review since the legislature requires strict construction under 287.800 and no statutory provision mandates the previous judicial exception. The court rejected the employer's argument that the recent Southern District case Norman v Phelps County Regional Medical Center, 256, S.W.3d 202 (Mo. App. S.D. 2008), which reached an identical construction, should not be followed.

1http://www.courts.mo.gov/file/Opinion_ED91861.pdf

State of hire determines jurisdiction

In Mayse v Jeff Honor Roofing, DOLIR 1-28-11, the Commission affirmed a decision that Missouri had jurisdiction to allow claimant to pursue SIF benefits based on the state of hire, when claimant reports he accepted a job offer from a Kansas company for work to be performed in Kansas after he returned from a Kansas office to drop off an application. Claimant settled for $60,000 in Kansas, and obtained an award of permanent total against the second injury fund. Claimant's prior chronic back pain combined with a new back injury (unoperated), causing a change to a more sedentary life style and need to lie down with some depressive symptoms. The ALJ found that claimant's previous learning disability with illiteracy also combined to impair claimant's coping skills and prevented him from learning new vocational skills. The decision has a detailed discussion regarding prior learning disability cases.

ALJ Magruder
Atty: Eppright, Fournier
Treaters: Dickey, Jones, Hendel
Experts: Koprivica

Claimant cannot recover benefits under Missouri compensation law in a hardship setting flowing from a March 2009 accident when he worked as a over the road truck driver and fell from a truck in Dallas, Texas, because the claimant was hired in Kansas, not Missouri. The case is Auxier v HP Distribution LLP, DOLIR 9-3-10. Claimant worked as a driver for a previous company which went into involuntary bankruptcy about 9 months before the accident and transitioned with some other employees to work for the defendant. The issue in the case was if claimant had, in fact, been "hired" or "merged" with the defendant and where any last act for hiring occurred. The administrative law judge found claimant had been hired and was not "merged", and resolved conflicting testimony that claimant had been hired in Kansas, and not Missouri, finding claimant was not credible in his claim that he required a drug test in Missouri as a condition of employment. The employer had stipulated claimant's accident arose out of and in the course of his employment, and had paid about $54,000 in benefits leading up to the hardship for additional care.

The Commission last year denied benefits based on lack of jurisdiction, and because a required drug test occurred outside the state of Missouri . Roberts v Leggett & Platt, DOLIR 3-25-09.

ALJ Miner
Atty: Creedy, Abbott

Strict Construction does not compel comp as exclusive remedy

A Missouri employer's failure to assert worker's comp in its answer to a tort suit in the future waives the defense of comp as an exclusive remedy, according to the Supreme Court's reject decision McCracken v Wal-mart Stores East, No. SC 90050.

The Missouri Supreme Court concludes strict construction no longer mandates a liberal reading to prove comp coverage in close cases, and allowed a claimant to proceed in a negligence claim against Wal-mart which asserted a last minute statutory employment defense that claimant's only remedy was in comp when a Wal-mart employee pushed a bread rack into his shoulder. Claimant worked for IBC, a vendor that emptied bread racks from IBC's truck to a loading area before product was stocked in the Wal-mart display racks. Claimant had settled his comp claim against IBC.

The Supreme Court concluded the circuit court erred in dismissing the case due to lack of subject matter jurisdiction, noting that the circuit courts have jurisdiction over all cases and matters according to the state constitution. The Comp Act cannot overrule the provisions of article V, section 14 giving circuit courts jurisdiction over personal injury claims.

Claimant does not have an unequivocal right to proceed in circuit court, but the circuit court retains jurisdiction to address an exception to tort liability created by the Act as an affirmative defense under Rule 55.08 or 55.27(a). Alternatively a claimant may file in worker's comp, and the Commission may make a determination whether or not claimant is a statutory employee to allow a claimant to proceed in tort.

The court addressed the merits because of historical confusion and "sloppiness" concerning the defense. Wal-mart failed to assert the defense in the timely basis in its answer and waited until the day of the trial erroneously to assert the defense as a motion to dismiss but the rule was applied prospectively only.

The Western District in Fortenberry v Buck D.O., No. 70490 (Mo. App. 3-16-10), found the court erroneously failed to use a stricter summary judgment standard before dismissing a malpractice claim for lack of subject matter jurisdiction. Claimant treated at an on site medical clinic and received an award of permanent total benefits for ulnar injuries which he claims flowed from receiving an injection. He claimed the physician did "something more" to support the second action. The court noted the record was not fully developed whether or not there was a genuine dispute of facts or if the duties to provide medical care were non-delegable.

In Heirien v Flowers, SD 30730 (Mo. App. 6-27-11) the court noted the defendant preserved its argument of exclusive remedy by filing a motion to dismiss for lack of subject matter jurisdiction. The case was remanded because the judge found it lacked subject matter jurisdiction contrary to McCracken, which interpreted exclusive remedy as an affirmative defense. The parties, unlike McCracken, disputed facts and the case could not be resolved on its merits as a motion for summary judgment. The plaintiffs alleged that the defendant did "something more" by directing claimant to handle heavy kiln doors with a propensity to tip over before one fatally crushed him.

Editorial: Does Pleading "max" rate violate ethics?

2011-10-28T13:31:00.000-07:00

Pleadings about compensation "rate" in a claim for compensation often  include boilerplate pleading of "maximum". Any allegation regarding rate, like a claim regarding injury, requires some degree of reasonable inquiry.

     Missouri worker’s compensation law provides limited statutory guidance when potential claims might appear on their face with questionable medical legitimacy. Section 287.550 indicates that proceedings are not to be “technical” and should be informal. Section 287.560 provides a claim must be brought “within reasonable ground.” The standard of “reasonableness” allows positions that might ultimately be considered thin or tenuous.

       It is wrong to assume that ethical rules permit zealous pleading unfounded with any reasonable facts regarding rate or other issues. An attorney also has an ethical obligation under Rule 4.3-1 to make a “good faith argument”that facts alleged are supported or could be supported. Similarly, Rule 4.3-3 prohibits an attorney from making a false statement of fact or law to a tribunal.   This may not be as demanding as Rule 11 in federal practice that requires a reasonable inquiry as a basis of fact.

Mo Rules of Court Rule 55.03 ( c ) requires allegations have or are likely to have some evidentiary support after a reasonable inquiry.
Any attorney may not automatically use boilerplate pleading of "maximum" rate unless  there is some good faith reason to believe with further discovery that claimant has earnings to qualify for the maximum rate. However, if the claimant identifies a lower rate prior to filing the claim, and there is no reasonable basis to suspect over-time or other earnings, then boiler-plate allegations of higher wages or the 'maximum' violates the attorney’s obligations both under the ethical code and the formal pleading requirements.
The attempt to "trap" the employer by admitting an incorrect rate, that is knowingly and falsely overpled, by a potential late answer confuses zeal with a duty of candor to the court.
A claim of a specific rate may be deemed admitted by a late answer, even if the allegation is inaccurate. In one case, an ALJ sanctioned an employer based on pleadings of a maximum rate, Kirk Wilson v Allied, DOLIR 6-2-09, when the employer did not file a timely answer and was in default.

Enforcement of pleading irregularities in a MO comp case are unlikely to be rigorously enforced based on 287.550. There is no motion practice to allow for remedies through a request for admissions or motion for more definite statement. Enforcement of pleading rules in a case like Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) is unlikely to every trickle down to the day to day adjudication of work place injuries in Missouri.   There is an ethical line in preparing pleadings between reasonable inquiry and wishful thinking.

Supreme Court to address "equal exposure" defense

2011-10-25T11:34:00.000-07:00

When can an employer assert an "arising out of" defense that an accident is not compensable because an injured worker was equally exposed to the hazard or risk outside of and unrelated to the employment? The issue will now go to the Missouri Supreme Court, based on a recent transfer by the Eastern District in Sandy Johme v St. John's Mercy Healthcare, No. ED 96497 (Mo. App. 10-25-11). The Southern District in Pile v Lake Regional Health Systems, 321 S.W.3d 463 (Mo. App. S.D. 2010) indicated that the defense was available for employers only if the claimant did not perform integral job duties and no clear nexus between work and the injury. The Eastern District found the Commission in Johme applied the Pile test which led to erroneous award, and considered the Pile approach is not supported by statute or case law.

A judge in a concurring opinion felt that claimant did not have "equal exposure" because claimant's risk of turning and falling out of her sandal was different because she was changing coffee for an "industrial" coffee maker comparedto a "home" coffee maker.
The Commission award compensation based on the personal comfort doctrine when Johme twisted her foot and fell. The court found that strict construction abolished the doctrine.

The Court rejected the employer's argument that claimant failed to establish she "twisted" her ankle, when the supervisor described the accident in that fashion even though claimant never expressly stated she twisted her ankle.

http://www.courts.mo.gov/file.jsp?id=50158

Court remands award to Commission due to unclear findings

2011-08-30T09:32:00.000-07:00

The Commission denied a claim of permanent and total disability against the SIF in which claimant's expert provided conflicting testing that claimant was unable to work with or without consideration of a prior heart condition. The Court found the record was not developed how the Commission considered the modified testimony of the expert who found claimant PTD even without consideration of the heart condition which was diagnosed after the primary injury and ultimately required a three-level bypass. Tombaugh v Treasurer, WD 73171 (Mo. App. 8-30-11). The Court requested additional findings whether the Commission found the modified opinion lacked credibility or if the Commission considered other non-medical issues.
Expert: Koprivica

Safety penalty cases

2011-08-12T11:29:00.000-07:00

When a 15% penalty applies against the employer for a safety applies to compensation, what is meant by "compensation?" In Hornbeck v Spectra Painting, ED 95680 (Mo. App 9-6-11) the court rejected the employer's argument that "compensation" subject to penalty did not include $32,801.15 in medical benefits already paid, $16,754.88 in TTD benefits paid, or a credit of $7000 against PPD in previously overpaid benefits. The court affirmed a Commission award of penalties under the Scaffolding Act relying upon 1919 precedent showing a fall is prima facie evidence of negligence in the absence of exculpatory showing on the part of the employer. The employer presented no such evidence. Claimant failed to persuade the Commission that he was permanently and totally disabled, that his subsequent biceps repair and back fusion flowed from the accident, or that the penalty should extend to SIF benefits without producing an incongruous result of punishing employers for pre-existing injuries. The decision puts to rest the argument whether medical benefits are compensation under the statute based on some equivocal statements in Thompson v ICI American Holding, WD 72374 (8-9-2011).

The Commission affirmed a 2-1 award imposing a 50% safety penalty for a safety foreman who intentionally carried a 100 pound bag of felt up a 40 foot ladder contrary to a company safety rule to require three point contact on ladders. The claimant argued he didn't have the equipment to move the material on the roof. The claimant worked as a roofer for 30 years, but became unemployable following a back surgery, development of complex regional pain syndrome, and constant pain that required narcotics and an unpredictable need to lie down. A dissenting commissioner disputed any application of the penalty when the employer did not produce evidence how it disciplined employees for any previous violations of the three-point ladder rule. The award applies the penalty to all "compensation."
The Commission issued a separate opinion to address the requirement for written notice and found no prejudice existed. The Commission expressly noted that the claimant could not rely solely on actual notice under strict construction. The Commission found it lacked jurisdiction to grant relief of a credit or reimbursement between carriers for benefits voluntarily made under Kansas law. Carver v Delta Innovative Services, DOLIR 7-22-11.
ALJ McKeon
Atty: Kelly, Russell, Jurcyk, Dickson
Experts: Koprivica, Cordray, Abram
Treater: Kaufman, Drisko

Claimant's right hand was pulled into a pulley, when the claimant tried to work on a broken belt, he did not fully de-energize the equipment and tried to stop a blower with a broom handle instead. The Commission awarded benefits but allowed a 37 1/2% reduction against all benefits paid, allowing a credit for more than $25,000, about half of which was medical bills. The issue whether medical bills were compensation was not preserved on appeal. The court of appeals found that claimant's failure to follow lock-out safety rules was an efficient cause of the accident and did not have to be the sole cause. The court found the employer enforced the rule by training and monitoring employee compliance, and did not have show previous safety violations and consequent discipline. Claimant had attended annual training for 12 years. The court found a rational basis in the 2005 amendments to impose different penalties to employers and employees for noncompliance, noting that both parties were not similarly situated. Thompson v ICI American Holding, WD 72374 (8-9-2011)

The employer disputed if claimant's accident arose out of and in course of employment when she was asked to drive about 45 minutes to help staff another convenience store in Hollister. Claimant lost control of her car resulting in multiple injuries including the need for a ORIF hip. She was temporarily disabled for about 7 months. She reported since the surgery she had severe posture problems that limited her ability to drive, sit in front of a computer but could attend church. A vocational expert felt she could perform some sedentary work such as an illustrator because she previously worked 25 years as a graphic artist. ALJ Mahon concluded it was a close case but found that claimant was unemployable because of her limits with her posture and questionable capacity to maintain the pace of the employment.

The ALJ awarded $45,865.83 in penalties against the employer for unreasonable defense. Harness v Southern Copyroll, 291 S.W.3d 299 (Mo. App. 2009) found travel compensable when work requires travel away from the primary business. The ALJ found the travel between stores was for the sole benefit of the employer, and dismissed the argument the claimant violated company policy not to clock out once she left the store. The employer offered no evidence to contest the duration of TTD or amounts of medical bills. The employer had no basis to deny the 50% hip disability found by its own expert. "It is unconscionable to starve out the Claimant by continuing to deny medical care and temporary total disability once compensability is clear and the injuries are severe.
The Commission affirmed an award of $229,373.12, which included the penalties, and awarded future medical including vehicle modification and permanent total benefits for the 49 year old claimant. Robin Johnson v Jared Enterprises, DOLIR 8-10-11.
ALJ: Mahon
Atty: Goodnight, Wesley
Experts: Koprivica, Swearingin, Hendler, Cordray
treaters: Wester

A sleeping b-driver on a truck claims she could never work again after she fell out of her bunk in 2001 when the truck braked suddenly. Although claimant was initially diagnosed with only multiple contusions, she continued to report for years chronic discomfort of her entire body. One physician provided 14 separate diagnosis and another pain management physician placed her fentanyl and methadone for primarily neck, back and shoulder symptoms. At the time of the hearing of the 2001 case, claimant was 60 years old. ALJ Wilson concluded claimant established that she was only permanently partially disabled, that she "overstated" her symptoms and an unrelated depression might impact her symptoms. The experts disputed whether or not fibromyalgia contributed to her symptoms. Claimant had worked only a week. The employer did not prevail on a safety penalty that claimant should have worn a seat belt, because the team driver training claimant apparently told claimant not to wear restraints, contrary to company policy. McPherson v New Prime Inc., DOLIR 3-9-11.

ALJ: Wilson
Atty: Pitts Law Office
Experts: Lennard, Paul

Claimant, a minor, sustained substantial injuries in a car accident while allegedly intoxicated, when he was working out of state and driving to Wal-mart to obtain supplies the next day for his employer. ALJ Mahon denied the employer's defense for drug and safety rule violations, and found that the employer failed to adopt or enforce any drug-free work place policy.
Claimant sustained more than $225,000 in medical bills, resulting in a ruptured spleen, forearm, fracture, and brain injury. The claimant asserts that the employer did not enforce its drug-free work place policy, that claimant's supervisor was drinking, and allowed claimant to drink before driving on his errand. The claimant further asserted that the employer waived any subrogation rights under a 'unclean hands' doctrine.

The Commission affirmed the award, which denied the defense of drug and safety penalties and declined a constitutional challenge on the penalty provisions as moot. The ALJ noted that the employer failed to introduce evidence that claimant's intoxication was illegal in the state where the accident occurred or that claimant accepted a drug-free policy when he was hired as he signed documents in 2005 but did not resign policy documents when he was re-hired in 2006. The case is Merkenson v Tap Enterprises, 4-29-10.

Safety penalty applies to medical bills

Claimant crushed both arms while working under a truck and the Commission affirmed a finding that he violated a safety penalty not to use supports under the truck. Claimant, 58, underwent 7-9 surgeries and restored limited use of his arms and was unable to return to work in his former job as a mechanic, which he had worked for 25 years. Judge Mieners awarded permanent total with disfigurement and did not apply a safety penalty against medical bills. The Commission modified the award and found the 30% penalty applied to all benefits, including medical, which in this case represented over $168,000. Stillwell v Knapheide Truck Equipment Commercial, DOLIR 3-23-10.

Safety penalty against employee for crush injury

Judge Miner applied a 37 1/2% penalty for all benefits including medical, disability and disfigurement when claimant injured his right hand when it was pulled into a machine and had not complied with all safety rules to de-energize and tag the machine.

Claimant retired from the employer after working nearly 40 years following the accident.

Claimant received 55% of right hand. Judge Miner deemed the safety breaches were not "egregious" to assert the maximum 50% penalty, which the employer had initially applied to paid benefits. The case is Thompson v ICI Starch, 3-16-10.

Procedural requirements for drug test
A drug-free work place policy that had zero tolerance and required random drug tests did not thwart benefits of a 23-year old framer who just said no to taking a drug test after a catastrophic injury. The Commission reversed a denial of benefits, noting that the employer failed to comply with a procedural twist how an employer requests a drug test in Roscom v Woodstone Builders, DOLIR 1-12-10.

Hospital nurses informed claimant that the carrier wanted a drug test and advised the claimant that he might want to talk to an attorney about his rights. The administrative law judge denied benefits, noting claimant had refused a drug test at the request of the employer and forfeited his right to benefits under 287.120.6. The commission reversed, noting there was no "request" nor evidence that the request was "of the employer" to invoke forfeiture of benefits under the compensation statute. The Commission further declined to adopt findings by the administrative law judge that the employer had a post-injury drug test policy.

The Commission issued a temporary award that the employer pay ongoing TTD benefits after July 2008, medical treatment including pain management and psychological treatment for claimant’s paraplegia, and deferred an award of past medical bills until the final award. The claimant asserts more than $150,000 in disputed unpaid bills.

Missouri law amended §287.120 in 2005 to increase penalties for drug or alcohol use in conjunction with an accident from 15 to 50% and allowed complete forfeiture when proscribed use is the proximate cause of the injury. Roscom highlights new procedural traps for employers wanting to assert the drug use defense when a post-accident testing is not expressly indicated, a claimant’s consent is sought only after the accident, and the employer never directly requests the test. Missouri reform in 2005 changed the interpretation of the statute from "liberal" to "strict" construction to help Missouri business. This decision is one of many recent cases that has weakened employer’s defenses under the rubric of strict construction.

PTD: Narcotics, secondary effects

2011-08-05T08:32:00.000-07:00

Claimant alleges the groggy effect of using tramadol daily precluded gainful employment. The commission rejected his claim of PTD, in a 2-1 vote, although the dissent noted the deleterious effect of claimant's medications on claimant's capacity to work. Claimant underwent 2 surgeries for a biceps injury after unloading timber from a truck and reported intractable pain that required him to take medications and daily naps. Patten v Cedar Creek, 2011 Mo WCLR Lexis 258 (Dec. 19, 2011)
ALJ Mahon
Atty: Wesley, Wohlford, Colburn
Experts: Bennoch, Cordray, Hedges, Woodward, Getter

A claimant alleges she was "constantly in a fog" due to lack of sleep and cannot drive due to pain in her back and knees and must lay down frequently. She alleges she hurt her knee in a self-defense class, and then subsequently developed chronic back and bilateral knee pain due to abnormal weight bearing. Arnold v Mo. Dept. of Correction, 2011 MoWCLR Lexis 201.

ALJ Tilley
Atty: Doug Van Camp, Gregg Johnson
Experts: Mace, Browning

A claimant received PTD benefits against the fund based in part on vocational testimony that he had difficulty dealing with people and had limited sleep. Claimant asserted he retired early at age 60 due to pain complaints following a total knee replacement and worsening PTSD related to a military fatality about 4 decades earlier. Harvey v GKN Aerospace, DOLIR 10-20-2011.
ALJ Hart
Atty: Dalton, Schuete
Experts: England

A 49-year old nurse injured her back lifting a patient in 2002 and suffered chronic pain after three back surgeries, ultimately resulting in a 2-level 360 fusion and implantation of a morphine pump. Claimant's expert concluded medications impaired claimant's capacity to make any professional judgments. The Commission affirmed an award of permanent total with open medical, but reduced the compensation rate and concluded the ALJ could not award specific care based on a life care plan. The award for past medical included a staggering figure of $543,737.
ALJ Lane
Atty: Hennessey, Early
Experts Musich, England
Treaters: Coyle, Sheehan, Kennedy

"Massive" use of narcotics
A Dangerous Building Inspector was found unable to work as a result of a 2002 accident when his right foot became stuck in a hole, based on a 88-page opinion affirmed by the Commission. Pace v. St. Joseph, DOLIR 8-4-11. Claimant, 59, developed a cascade of problems following a knee surgery for a torn meniscus: DVT, RSD, and reactive depression. His wife testified he is no longer a happy man and cannot play golf or scuba dive. As a result of instability, he describes several subsequent falls at work until he was fired in 2005. He states his leg continues to "kill" him and his world moves "in slow motion." The administrative law judge found claimant required "massive" amount of narcotics. Claimant states he subsequently fell and injured his shoulder and developed carpal tunnel from using crutches. The employer relied upon an expert who agreed claimant was unemployable, but attempted to apportion the condition in part to pre-existing conditions. A bone scan did not corroborate findings of complex regional pain syndrome and some of the doctors disputed the diagnosis and basis for claimant's complaints of chronic burning pain.
ALJ Miner
Atty: Creedy, Shine, Eisfelder
Experts: Abrams, Titterington, Koprivica

Claimant received PTD benefits flowing from a 1999 incident as a result of trying to move a 350 pound pump, resulting in treatment for chronic back pain, piriformis syndrome and depression. ALJ Meiner found claimant's symptoms credible that he could never return to work including his complaints of frequent pain, falling down, and heavy narcotic use of medication. Claimant consulted a doctor before the accident for radiculitis, and did not identify a work-history during two initial medical visits, but a company nurse and co-worker were aware of the accident. The employer had been ordered to provide treatment previously in a temporary award. It is not clear why the case took more than 10 years to proceed to a final hearing. The case is Gibbons v The Quaker Oats Co., DOLIR 5-20-10.

Attorneys; Knepper, Johnson
Experts: Koprivica, Crislip, Abram, Schmidt, Titterington, Poppa, Montaya, Quintero
ALJ: Meiners - PTD

In Kuhnlein v City of Kansas City, DOLIR 6-24-10, the adminstrative law judge found, in a second injury fund claim of PTD benefits, vocational testimony unpersuasive that claimant was permanently and totally disabled based on claimant's use of narcotic medication, when the use pre-dated the primary low back strain. The judge also found unpersuasive that claimant didn't introduce evidence of vocational test results becuase of his dependence on narcotics.

ALJ: Mueller
Expets: Titterton, Walker

Prior narcotic use "to work" supported claim for permanent and total disability benefits for claimant sawyer with chronic shoulder and back pain. Vermillion v The Layman Co., 2011 MO WCLR LEXIS 228 (11-10-11)
ALJ Holden
Atty: Wise
Experts: England, Eldred

Claimant did not establish that she was permanently and totally disabled due to chronic pain that required daily Fentanyl doses, although her expert testified that drug side effects and pain complaints precluded her capacity to work. The administrative law judge noted that claimant's reported "need to lie down" was not corroborated by medical recommendation or restriction. Claimant was a 63-year old card dealer injured in 3 accidents in 2002-2003 including a repetitive trauma claim to her shoulder from dealing cards and a back accident from falling at work. She ultimately underwent shoulder surgery for "calcium buildup" and percutaneous discectomy for markedly degenerative thoracic discs, with no prior history. The employer had advanced $20,000 for the 8 year old case. The Commission affirmed 2-1 in Carter v Harrah's North Kansas City, DOLIR 1-13-11.

ALJ Miner
Atty: Manson, Fox, Fleet
Experts: Stuckmeyer, Condray, Clymer, Thomas

Claimant lost a permanent total claim against the second injury fund, due to lack of credibility that he needed to lie down during the day and that he had disabling anger management issues. Claimant settled with the employer and received a partial disability award against the second injury fund for prior psychiatric, hand and knee conditions.

The adminstrative law judge compared the impact of claimant's pre-existing conditions on his ability to compete for and maintain employment. Claimant sustained employment as an iron worker for 35 years prior to his accident. He pursued only minimal conservative treatment for his bulging disc , and he settled his claim against the employer for back and psychiatric disability for a "mere" 15%. Claimant's psychiatrist expert rated 40% pre-existing disability and included factors such as a prior "chaotic family" and personality disorder. A witness confirmed that police had been called at work because of claimant's anger management issues.

The adminsitrative law judge considered claimant's prospects of future employment. Although the PTD statute considers "any" employment, claimant stated he would not consider jobs that did not pay an appropriate salary. The administrative law judge further concluded that more effective recent psychotropic drugs made "it is reasonable to believe Claimant’s chances of securing and maintaining employment in the future will improve."
Roberson v Ben Hur Construction, DOLIR 7-15-10 (2-1)

ALJ Landolt
Experts: Volarich, Stillings, Gonzalez
Atty: Sievers, Barnard

Fail to provide expert: lose case

2011-07-27T11:13:00.000-07:00

The Commission affirmed an award of permanent and total disability benefits against the second injury fund, noting that the Fund failed to produce an expert witness to refute claimant's conclusions and failed to provide sufficient evidence to discredit her testimony. Thompson v Super 8 Motel, DOLIR 7-26-11.

Claimant was a hotel employee who reported she hurt her back when she fell backwards in 2002. Claimant treated with Dr. Straubinger, but the award does not identify other medical findings or treatment. The administrative law judge noted Dr. Straubinger treated her for a low back strain, and noted she had inconsistent findings but her symptoms might also be consistent with an annular tear. He couldn't comment on the significance of any annular tear. "Thus, I find that by his own testimony and records, Dr. Straubinger acknowledges and admits that he cannot fully assess the employee’s medical condition and how it relates to the work related injury."

ALJ: Strange
Atty: Green, Rodman
Experts: Cohen, Straubinger, Shea

The Commission reversed an award of benefits against the second injury fund due to lack of expert opinion to address claimant's prior loss of vision from amblyopia. A dissenting commissioner concluded claimant could testify about his pre-existing incapacity to see without the need for expert opinion on diagnosis. Gentry v Kraft Food Inc., DOLIR 8-11-11.

287.220(5) interest: SIF liability

2011-07-19T12:11:00.000-07:00

If the Second Injury Fund must pay medical bills because an employer lacks insurance, is the claimant allowed interest when the bills are not paid promptly? Eason v Adams Towing Inc., DOLIR 7-19-11, is a Commission case of first impression to indicate when payments are "due" to trigger any interest.

Claimant fell about 15 feet off of a car carrier and required ORIF for a tibia fracture, resulting in $46,802 in medical bills. The employer went into bankruptcy. The employer's Oklahoma insurance policy did not apply the accident which occurred in Missouri, and the administrative law judge found the second injury fund liable for unpaid bills pursuant to 287.220(5) because the employer was uninsured. The administrative law judge awarded the medical bills with open medical but denied interest, a decision affirmed unanimously by the Commission.

The claimant asserted that 408.020 required the Fund to pay interest. The commission denied interest for two reasons: the Fund was not a "debtor" until after an award, when the administrative law judge found that a debt was owed. Second, the Fund's obligation to pay medical bills was not mandatory, unlike employers. The employer "shall" pay the bills under the mandate of 287.140.1. The second injury fund, however, is not obligated by similar mandatory language and 287.220.5 indicates that funds "may" be withdrawn. The commission noted it was well-established that the Fund could owe for interest under certain circumstances, State ex rel Otte v State Treasurer, 182 S.W.3d 638 (Mo. App. 2005) but Eason addresses when: an unpaid medical bill is a debt "owed" only after an award.

ALJ: Fisher
Atty: Doyle, Hammers
Experts: Geist

287.020.3 prevailing factor / accident

2011-07-06T11:40:00.000-07:00

Turning steering wheel is an "accident"
Turning a steering wheel on the first day on the job was an "accident" to claimant's shoulder, and the action exacerbated a prior shoulder condition to result in 5% permanent partial disability. Claimant failed to show any need for surgery flowed from the accident, he did not immediately disclose a job injury, nor did he disclose a prior history of shoulder problems that received medical treatment to his expert. Nichols v ABC Moving and Storage, 2011 Mo. WCLR Lexis 257 (12-19-2011)
ALJ McKeon
Atty: Huston, Fowler, Reynolds
Experts: Stuckmeyer

Bad Reaction to Flu Shot Deemed an "Accident"
Claimant worked at a hospital and required a flu shot and it was not required by her employer. The Commission agreed the flu shot itself was not an "accident" but considered claimant's reaction to the flu shot, transverse myelitis,  was an "unexpected traumatic event" which could be identified as caused during a single work shift. The commission applied Pile and found a "clear nexus" to claimant's work activities which exposed her to higher risks of infection in the health care field, compared to other industries, and concluded it was unnecessary in the temporary award to address "equal exposure" issues. The ALJ found inoculation important to prevent patient infection but regarded the incident as an occupational disease.
Doyle v Lakeland Regional, 2011 MO WCLR Lexis 243 (Dec. 8, 2011).
ALJ Holden
Atty: Tolbert

Natural and probable consequences
Claimant failed to prove an "accident" to his left shoulder, when he alleged his left shoulder hurt from "working hard" after a prior right shoulder injury. The Commission affirmed a denial, noting climant's expert based his "unadorned diagnosis" of tendonitis on conclusory statements without identify an acitivity or event.   The employer's settlement of the case based on disputes of "accident" was not binding on the second injury fund. Howard v JH Berra, 2011 MO WCLR 251 (Dec. 9, 2011)
ALJ Robbins
Atty: Morgan, Krispin

Late diagnosis of herniation still flows from orignal accident despite new "event"
The court of appeals declined to disturb a credibility finding in a battle of the experts whether claimant's original back injury in 2001 was the "substantial" factor in the need for his back surgery, rejecting the employer's defense that claimant had a "new" accident. A 2002 MRI identified a new disc pathology and claimant reported before the MRI his back "collapsed" when he tried to get out of a chair at home. The Commission found the employer's experts less credible because neither was a treating physician, one based a neurosurgical opinion on a "records" review and that claimant's pain "never gave up" leading to the second incident. Dr. Yingling, the surgeon, indicated that an MRI a year later identified a change in pathology but he concluded that his medical condition and symptoms flowed from the original accident Dwyer v Federal Express, SD 31423 (Mo. App. 11-10-11)

Impact of Acute diagnosis
The employer disputed claimant's accident falling backwards in a self-defense training class represented the prevailing factor when medical records identified chronic back problems. The ALJ, however, rejected the argument and noted the claimant described increased symptoms and the emergency room doctors diagnosed an "acute" neck and lumbar symptoms. Claimant's expert testified that the accident "aggravated" a lumbar syndrome and provided what appears to be a boilerplate paragraph about the need for future medical care.   Claimant was awarded permanent partial with future medical against the employer, and permanent total against the second injury fund. The Commission did not affirm language of the award finding jurisdiction to resolve future medical disputes. Boone v Mo DOC, DOLIR 7-1-11.
ALJ Strange
Atty: Van Camp, Johnson, Krispen
Experts: Volarich, England, Browning

The Commission affirmed an award of over $81,000 in benefits for a 2006 accident in which a claimant who had surgery to the shoulder a few years before his accident claims he hurt the same shoulder again at work after loading over 2200 pounds of cardboard into a press. Claimant treated following the accident for a massive rotator cuff tear. His surgeon testified that it was difficult to say whether or not the accident represented the prevailing factor in his condition. An orthopedic expert testified the condition was degenerative. The administrative law judge awarded benefits, noting claimant subjectively reported pain in a new location, the new tear could be distinguished as infraspinatus instead of supraspinatus, and claimant described an acute onset of sudden pain and decreased function after the event. Claimant's hired expert, a neurologist, concluded that work was a prevailing factor. Claimant had received an earlier settlement of 27 1/2% to the shoulder. The ALJ denied a request for fees and costs.

The administrative law judge in the 2010 decision awarded mileage based at 27 cents a mile, noting the custom in this field "for some unknown reason" was based on the current reimbursement rate of state employees. Spies v Altivity, DOLIR 2-9-11.
ALJ Kohner
Atty: Rudder
Experts: Nogalski, Cohen
Treater: Yamaguchi

The Commission affirmed a finding of prevailing factor when claimant describe a sudden change in function, and ordered in a temporary award treatment for a rotator cuff and biceps tear. Claimant lifted a 70 pound tub of deer meat and described an acute onset of shoulder symptoms with discoloration of the shoulder (and abdomen). The ALJ noted that claimant had pre-existing degenerative findings but found the work accident the prevailing factor because claimant could not have performed his prior job tasks for 2 months if his rotator cuff had been previously torn.    Crooks v Town & Country Butcher Shop, DOLIR 7-25-11.
ALJ Dierkes
Experts: Baumann, Milne

Claimant suffered a heart attack within days after he accidentally stabbed himself in the arm while cutting meats and he underwent a fasciotomy to repair the wound. The Commission reversed a denial of benefits for the heart condition, and found claimant not only established he had new 25% BAW disability for a new heart attack, but he was entitled to future medical care and his "new" heart condition combined with his "old" heart condition to obtain life time benefits against the second injury fund. The administrative law judge denied benefits and found the employer's expert, a cardiologist, more persuasive on causation than claimant's expert, a family physician. The cardiologist concluded the stress from the injury and surgery could represented a "tipping point" to represent a significant or substantial factor and the MI would not have occurred but for the pre-existing cardiovascular disease. The Commission construed Dr. Schuman's report "in its entirety" found work to be the prevailing factor in the heart condition, although Dr. Schuman appears somewhat equivocal and it is unclear whether he was ever asked to address the correct statutory standard for prevailing factor.

Prevailing factor only required the accident to be the primary factor and not the exclusive factor.
The commission further modified the award to allow open medical. Claimant had worked for the employer only about 4 months and quit a previous job as a roofer becuase of heart conditions. Claimant had a heart condition for 7 years, including multiple stents and bypass operations. The recent case of Tillotson v St. Joseph Medical Center, WD 72948 (Mo. App. 6-14-2011), is not mentioned, which supports an award for future medical when future medical treatment is reasonably related to an accident, despite substantial pre-existing conditions.

The second injury fund denied liability on the defense that claimant's prior heart condition was "asymptomatic", a somewhat puzzling proposition in light of the multiple surgeries prior to his employment for Swiss Meats. Lichtinger v Swiss Meats, DOLIR 7-1-11.

ALJ Fischer
Atty: Eveland
Experts: Berkin, Schuman, Lalk

Claimant had a history of prior shoulder pain but established transferring motors caused a new rotator cuff tear resulting in an award of 20% PPD. The surgeon noted the absence of any other degenerative findings during arthroscopy. The ALJ noted although claimant had a history of prior symptoms flowing from fibromyalgia, she established a sudden onset of new symptoms based on medical evidence and credible testimony from a co-worker. Hannon v Regal Beloit Corp., DOLIR 6-24-11.

ALJ Ruth
Atty: Pirmantgen
Experts: Snyder, Roeder

The commission affirmed a denial of accident when claimant treated for back pain after handling patients with a gait belt, but her treating physician concluded her need for treatment and need for an L5-S1 fusion flowed from her spondylosis. He had performed 2 epidural injections. The 36 year old CNA had identified prior episodes of back pain. Dr. Bailey concluded recurrent back pain was the natural progression of the disease. Johnson v Dept. of Public Safety, DOLIR 5-25-11.

ALJ: Siedlik
Atty: Dull, Fournier
Experts: Swaim, Bailey

The commission affirmed a denial of accident when claimant's need for knee surgery and c5-c6 fusion flowed from a progressive degenerative condition and not from his alleged accident falling off a building. The ALJ noted claimant's incarceration prior to the accident. Schreiter v Concrete, DOLIR 8-17-11.

ALJ Kohner
Atty: Bahn
Experts: Polinsky, Berkin, Mishkin, Wayne
Treaters: Rummel

Claimant's accident was the prevailing factor to his left leg condition and need for future medical treatment, despite 16 previous surgeries to the leg. Claimant injured his right leg resulting in ORIF and claims his left leg became worse during "overuse" as a result of his rehabilitation. Bonar v ATK Alliant Techsystems, DOLIR 1-24-11.
ALJ: Mueller
Atty: Kolish, Haskins
Experts: Sojka, Prostic
Treater: Horton

Claimant, 61, proved his Nov. 2005 accident falling 6 feet at work was a prevailing factor in his total knee replacement a year after accident and that accident made symptomatic his end stage arthritis. The administrative law judge was persuaded by claimant's history that he was function in a physically demand job that required squatting and crawling and previously asymptomatic from previous injuries. The experts agreed that claimant had advanced degenerative findings. Following the accident claimant had a new fibula fracture and his knee required aspiration.

The parties disputed causation. In a creative stipulation, the parties agreed claimant would received 7 1/2% disability if the administrative law judge found no causation, and would limit the award to 40% if the ALJ found causation. The ALJ found 40% disability

ALJ Vacca noted the accident falling 6-8 feet was a life changing event, and that the employer's expert had not fully considered the reported lack of prior symptoms from two earlier surgeries to the same knee. The case is Cunningham v Instuform Technologies, DOLIR 12-2-10.

ALJ Vacca
Atty: Padberg & Corrigan
Experts: Lehman, Volarich
Treate: Burke

Claimant failed to prove shoveling snow was a prevailing factor in his neck condition and need for C6-C7 surgery when he had a prior history of neck problems, he did not promptly report the condition, and his medical documented history was inconsistent with a work injury. The court of appeals affirmed the denial of benefits based on findings of credibility and noted it was not "persuasive" that a finding of accident and that claimant limited his activities was not "irreconcilable" with a finding that work was not a prevailing factor. The case is Payne v Thompson Sales, Co., 322 S.W.3d 590 (Mo. App. 2010).

Claimant states she was on her feet at work about 80% of the time, but claims at home she was on her feet only about 50% of the time, defeating the employer’s argument that she failed to demonstrate she had a risk that was greater at work than away from work.
In Pile v Lake Regional Health Systems, 321 S.W.3d 463 (Mo. App. 2010) claimant stated she was on her feet all the time as a registered nurse, which gave her tendonitis, and that twisting to get to a medicine cabinet caused some small fractures. The tendonitis made it more likely for her foot to fracture, according to her expert. The Commission rejected the claim, affirming a denial, and found that claimant only had a "pedestrian stumble" and failed to show she didn’t have an exposure she couldn’t equally have away from the job. The employer stated the case was indistinguishable from Miller v Mo. Hwy Transportation Com’n, 287 S.W.3d 671 (Mo. Banc 2009), as a stumble could happen any where, any time to any person.

The court of appeals stated the Commission used the wrong standard, and the correct standard was "equal exposure". Since 80% was more than 50%, the claimant met her burden showing the exposure was not equal. Furthermore, the court concluded the equal exposure defense didn’t even apply if claimant showed her accident flowed from an "integral" job duty, which she did, since reaching for medicine was what being a nurse was all about. It is not clear where in the statute the court defines an "integral" job duty. The court notes the statute must be strictly construed, and that it "tried to discern" what the legislature meant, despite the statute’s use of double negatives. A dissent argued there was no medical evidence indicating any tendonitis was work-related and the majority improperly engaged in its own findings of fact as a basis to reverse the Commission.

Claimant sustained injuries to her foot when she claims she was on her feet a lot and walked quickly, and turned, causing tendonitis, and a fracture of the os peroneum. The commission affirmed, 2-1, a denial of benefits that claimant failed to establish an accident under the Act and that she did not establish she was walking "briskly" or that her physical activities were distinguishable from "equal" exposures outside her occupation. The case is Denise Pile v Lake Regional Health System, DOLIR 10-6-09.

A dissent argues that claimant established that she walked "briskly" and had no similar exposure outside from work, unlike the recent Miller decision. Citing language in Miller, the dissent argues the Supreme Court tweaked the definition of accident in 287.020.2 away from the definition of the "accident" as the prevailing factor, but analyzed "work" as the prevailing factor, and the dissent argued the employer failed to show "equal" exposure in non-work life as 80% of time claimant spent on her feet at work (as a causative factor to tendonitis) compared the less than 50% of time on her feet away from work.

In Lynn v Boone Electric Cooperative, DOLIR 8-4-11, the Commission applied Pile and found kneeling and squatting and reaching were integral job duties because claimant was servicing a transformer at the time, and avoided the need to analyze whether the hazard or risk occurred in normal, non-employment life.
ALJ Zerrer

In Woods v Camdenton Windsor Estates, DOLIR 11-14-11 , 2011 MOWCLR 231 the Commission found an "accident" applying Pile that claimant, a night nurse, was subject to a greater hazard of falling greater at work due to "backing up" in a tight two-foot area. The ALJ in the temporary award noted claimant had lost 40 pounds at the time of the hearing.
ALJ Fischer

An accident is compensable only when it is a prevailing factor. In Leake v City of Fulton, 316 S.W.3d 528, (Mo.App. W.D.2010), claimant died from ventricular fibrillation. He was a 20-year fire department captain and died on the scene immediately after a rescue. Both experts agreed that claimant's prior cardiac condition and his activities as a fire-fighter rescuing someone from an auto accident contributed to his death. The court affirmed that the work accident represented the prevailing factor, reversing a denial of benefits by the administrative law judge.

The court held that the finding of fact of prevailing factor was supported by substantial evidence, and it deferred to the Commission regarding factual findings. The court considered claimant's prior condition was asymptomatic; he previously performed exertional duties such as carrying hoses and heavy lifting without any obvious impairment. A co-worker testified the activities on the night of the rescue were extraordinary and emotionally and physically challenging. An expert cardiologist indicated that the physical exertion, emotional stress, and hot and humid weather represented risk factors. Claimant was not previously diagnosed with a heart condition, although autopsy findings indicated blockage in several arteries, and findings of a prior heart attack. The employer argued pre-existing conditions barred any finding of work as a prevailing factor. The court dismissed the significance previous advise to quit smoking and lose weight. "Although Leake’s physician had advised him to quit smoking and follow a healthy diet, the advice was no different than that which any physician would offer to a moderately overweight patient who smoked and did not appear to be in response to any particular complaints that Leake was presenting at the time. "
The original award by ALJ Harris noted claimant had established the work accident may have represented a substantial factor, but did not meet the new higher standard of prevailing factor. His factual findings, not noted by the courtappeals, indicated risk factors of obesity, elevated cholesterol, severe cardiac disease with occlusion of 95% at two levels, and a 2 pack per day smoking habit for several years.

Claimant sought a temporary award of benefits for back surgery, following two back injuries with the same employer, and was denied benefits based on the findings that claimant sustained only soft tissue injuries that resolved within a few weeks without any permanency. The Commission affirmed a denial of attorneys fees, finding that the defense was not egregious. An expert hired by the defense recommended surgery and opined the "work injury in June 2007 is the prevailing factor in her present complaints." The administrative law judge found inconsistencies in the medical records and insufficient persuasive medical explanation to support a causal connection. Claimant was a long-term employee, diagnosed with advanced degenerative disc disease but denied prior symptoms. Vitale v St. Louis Envelope, DOLIR 6-8-10.

ALJ: Tackes
Experts: Chabot, Mirkin, Lee
Attorneys: Thurmer, Palombi, Dietrich

Claimant treated for a back strain and was burned from e-stim during treatment for a back injury, and states his immobility caused by his burn caused DVT, an embolism, and a heart condition that required him to carry oxygen. All of the doctors agreed as a result of these conditions that he was unemployable, but disputed whether the work accident was the prevailing cause. The administrative law judge found the 289 pound welder/polisher, 63, aggravated his degenerative back moving a 20 pound kitchen counter, noting that claimant had no previous symptoms. The Commission reversed, and found that claimant proved accident but failed to prove injury or a violence to the physical structure to the spine, and attributed the symptoms to severe degenerative conditions. The Commission adopted findings of Dr. McMillan who regarded claimant's prior spinal condition as a "train wreck" and rejected Dr. Koprivica's causation links between a back strain and claimant's subsequent DVT, embolism, hypertension, atrial dilation, chronic atrial fibrillation and cardiopulmonary disease. The case is Wilken v Qualserv Corp., DOLIR 3- 16-10.

Role of pre-existing conditions on prevailing factor
A part-time claimant blamed her high heels caused arthritis in her big toe. The claimant failed to prove her work for about 6 months caused an occupational disease when her own expert indicated that her 2 1/2 inch heels placed her foot in an "unnatural position" and might make her feet hurt but conceded that the x-ray findings of joint space narrowing required years to develop and pre-dated her employment. The administrative law judge noted there was "some question" if her employer even required high heels, how often claimant actually stood at her job or wore high heels, or whether marble floors in any way increased claimant's occupational risk of injury. Claimant worked at times 4-5 hours a week, had a chair available, and offered no medical evidence on the risk standing on "marble" floors compared to any other type of floors. The case is Larson v Missouri Chamber of Commerce and Industry, 4-7-10. The case follows several recent decisions which demonstrate how objective evidence of significant pre-existing pathology may fail to show work is the "prevailing" cause of an injury. Wilken v Qualserv Corp., DOLIR 3- 16-10 (degenerative back); Huskic v Mo Baptist, DOLIR 7-24-09 (recent prior shoulder surgery); Gordon v City of Ellisville, 268 S.W.2d 454 (Mo. App. ED 2008) (shoulder). The administrative law judge noted it was unclear whether the employer required high heels as part of a business attire. Striker v Children's Mercy, WD 70697 (Mo. App. 12-1-09) found the "clogs" to be a higher risk than the ordinary public when the claimant reported she did not wear clogs away from the job. The administrative law judge, however, in Hafley v Mo Dept of Corrections, DOLIR 4-7-11, awarded benefits to a prison guard who claims walking and standing aggravated his bilateral fascitiis, rejecting a causation opinion from an orthopedic surgeon.
ALJ Strange
Atty Matheny, Johnson
Experts: Krause, Volarich

In Zentz v Kraft Foods, DOLIR 1-26-10, claimant fails to prove his recurrent disc herniation flowed from an event straightening up at work. Claimant worked the bacon packing line at Kraft and states he experienced back pain after reaching across the line and straightening up in 2005. He underwent a L5-S1 fusion, and his surgeon, Dr. Chabot, concluded it was plausible the event strained his back and caused his need for surgery. ALJ Ruth found that claimant failed to show his need for surgery flowed from the accident based on two other expert opinions and concluded that Dr. Chabot’s opinions appeared based on temporal proximity rather than medical or scientific analysis. Claimant had undergone previous back surgery in 2001. Judge Ruth sustained the employer’s motion to strike portions of claimant’s brief which included medical bills not introduced at the hearing.

Multiple different claims of accident is not a repetitive trauma
Claimant failed to prove he was permanently and totally disabled from "repetitive trauma" to his knee, two subsequent knee surgeries, and depression from "pain disorder" when he provided conflicting evidence regarding how his 2004 knee accident occurred, his "depression" had little treatment and claimant at the time of the hearing remained employed. The case is Hines v Fedex Freight, DOLIR 5-18-10. Claimant did not persuasively establish that his three versions how he injured his knee including getting out of a chair, going down steps, and falling down represented a "repetitive" trauma. Claimant provided inconsistent testimony whether he provided notice of an accident. The defense expert attributed claimant's condition to degenerative chondromalacia flowing from a prior 2002 accident that required knee surgery.

Attorneys: Neisen, Yates-Sanders
Experts: Volarich, Wolfgram, Burke, Smith, Nogalski
Treater: Irvine, Tessier
ALJ: Gorman - claim denied

Duplicative claim is not a new accident/OD

Claimant filed multiple claims alleging carpal tunnel syndrome in 2004 and 2007 but the Commission denied claimant's latest 2007 claim was a new condition, or different than an earlier 2004 claim (the 2004 case remains pending). The court of appeals recently affirmed, but criticized the Commission for not designating the decision as a "dismissal" (to avoid the appeal) or consolidating the multiple claims. Judge Smart wrote a long concurrence asserting that the Division's current forms caused a "tangle of confusion" how to assert an occupational disease and strict interpretation might foreclose "conscientious workers" from pursuing benefits when symptoms re-occurred and pondered if the Division could maintain a "special type of processing" for claims involving latent but diagnosed occupational diseases. The case is Bonita Miller v U.S. Airways Group Inc., WD 70840 (filed May 11, 2010).

Unexplained pop not an accident
Claimant asserts her knee popped at work because she stepped in something sticky on the floor. The Commission found that claimant failed to prove her accident arose out of her employment as her "sticky floor" history was not fully documented in initial medical records that recorded her knee merely popped at work. The claimant failed to prove her knee injury arose as a rational consequence of a work-related hazard, a decision which is another progeny of walker cases such as Bivins v. St. John's Reg'l Health, 272 S.W.3d 446 (Mo. App. 2008). The case is Bailey v Phelps County Regional Medical Center, DOLIR 1-7-10.

Subsequent "aggravations" are not accidents
Claimant, a 46-year old UPS driver, fell at work in 1997 and developed a hernia and had significant post-operative complications, and received permanent total benefits against the second injury fund based on pre-existing disability of depression and personality disorder.The claimant filed 3 separate claims, and he settled 3 separate claims against the employer prior to the hearing and claimant proceeded against the second injury fund. Claimant’s original expert Dr. Cohen found claimant unemployable due to a combination of disabilities from his 3 accidents. In the second claim, claimant had returned to work without restrictions as a driver and reported increased pain after he slipped and fell on a separate occasion. In the third claim, claimant asserted shoulder and neck injuries when he stated he fell from a treadmill during therapy after a hernia surgery. Administrative law judge Kohner found claimant had only one accident and the other two events were not intervening accidents based upon findings of Dr. Meadows, the original treating physician, that claimant had chronic pain complaints following his first hernia repair. Dr. Meadows was credible because he was involved early in claimant’s care with a “first row seat”, and he had consulted outside experts. The judge made findings that his employment by the “insurance company does not appear to be a factor” because he made findings adverse to the carrier’s interests that claimant could not return to his former job as a driver and was permanently impaired in his social and marital activities.Judge Kohner found claimant's original accident represented permanent partial disability, consistent with the settlement, and awarded total benefits against the Fund. Claimant’s original expert, Dr. Cohen, assigned no disability for pre-existing conditions. Claimant retained Dr. Stillings who found pre-existing psychiatric conditions. Claimant asserted prior psychiatric conditions of personality disorder and chronic dysthymia based on a 2008 exam by Dr. Stillings, obtained 11 years after the 1997 accident. Dr. Stillings’ finding of pre-existing disability had “spotty” support in any treating records and administrative law Judge Kohner found some of his conclusions counter-intuitive, such as findings that claimant had disability from a dysfunctional family as a child. The record identifies no expert testimony offered by second injury fund to refute any of Dr. Stillings’ conclusions.ALJ Kohner concluded claimant had 60% disability for his groin injury, including the hernia repair, further surgery to address ilioinguinal nerve damage and a third surgery to repair a second hernia near the initial repair. Claimant was awarded 15% disability for prior psychiatric conditions, rendering him permanently and totally disabled. The employer had paid 60% for the hernia-related disability allocated between the 1997 and 1998 accidents, and an additional 40% of the neck and 35% of the shoulder. Claimant had undergone a fusion of the neck performed by Dr. Gornet and a shoulder surgery, Dr. Miller, after he states he fell from a treadmill. A therapist testified claimant had complained of some dizziness, but incomplete therapist records could not dispute or confirm whether claimant fell during therapy. The case is Webb v United Parcel Service, DOLIR 2-4-10.

Claimant fell while getting out of a desk chair, and stated she experienced swelling in her knees and increased back pain and received a short course of physical therapy. Administrative Law Judge Lane awarded claimant $21,086 in benefits. The Commission reversed, finding claimant failed to prove work was the prevailing factor in her condition due to her limited course of treatment and her extensive medical history of similar symptoms and that the employer's expert, Dr. Doll, had more logically assessed the effect of prior history on her current condition. Claimant's history included a prior knee replacement, chronic back pain at 10/10 levels, and treatment as recently as 2 weeks before the accident. Claimant's medical expert, Dr. Levy, conceded he had been provided earlier treating records concerning the back but had excluded any summary of the records in his report. Mark Haywood represented the employee. Phillinese Ezell v Famous Barr, DOLIR 10-7-09.

A company president fell over a telephone cord at work but failed to prove her radius fractures arose from work and not from falling out of bed the following morning. The court in Bond v Site Line Surveying, WD 72142 (Mo. App. 10-12-10), http://www.courts.mo.gov/file.jsp?id=41640

agreed that substantial evidence supported the Commission’s decision to deny benefits, reversing an award of benefits by the administrative law judge.

The court of appeals has a limited standard of review, and will not disturb a credibility finding that claimant failed to prove the fall was the prevailing factor if supported by substantial evidence. It is claimant’s burden of proof to establish causation and not the employer’s burden to establish an alternate cause. Claimant produced witnesses supporting an immediate onset of swelling, discoloration and pain complaints after falling at work and medical evidence supporting causation. Dr. Pazell concluded that the 2007 work injury was the prevailing factor in her injuries and rated permanent partial disability. He recommended in 2009 additional MRI and EMG studies of the arm and shoulder.

The court of appeals summarized conflicting evidence in the case whether claimant’s injuries at work represented a “minor fall” or a traumatic fracture. The case demonstrates that medical evidence that is not contradicted by other medical opinions may lack credibility without showing a fully informed basis for the opinion. The Commission was not obligated to accept the medical opinion when the expert’s opinion was not based on “medical judgment,” and did not fully consider all of the evidence or alternate causes. The Commission discredited facts relied upon by the expert including inconsistencies in the medical histories and pleadings and claimant’s a history of breaking bones previously from nocturnal seizures. Claimant’s initial emergency room record documented an injury at home and claimant made ‘‘less than a definite denial.” The pleading described claimant “moving furniture.” Claimant’s ex-boyfriend contradicted claimant’s denial that she injured her wrist at home. Claimant did not dispute that she fell out of bed, but states she did not have a seizure or hurt her wrist and fell on her bottom while trying to avoid three sleeping dogs.
Fall at home during recovery stage compensable

Claimant's fall at home when he was checking his fence after an ice storm in 2007 was a natural and probable consequence of his 2005 knee injury, according to a Commission decision which reversed a denial of that part of the claim based on an intervening accident defense. The claimant fell when he was still on crutches from a recent work-related 2007 ACL debridement, and two months later underwent a disputed ACL reconstruction. The Commission defined intervening accident more narrowly than the administrative law judge. Intervening accident was not a risky venture for claimant's own benefit, but included factors whether claimant was acting reasonably (noting an urgent situation to avoid horses from escaping) and not engaging in a purely personal folly such as a participating in a sports event. The accident occurred when claimant was still in a recent post-surgical recovery stage, and his mobility was compromised by using a crutch which collapsed on the ice. The Commission awarded benefits, and modified the award from a permanent award to temporary award based on medical testimony that claimant more than 2 years after the 2007 surgery still required MRI studies and might need a TKR. Moore v Rock Busters Inc., DOLIR 12-10-10.

ALJ: Mahon
Atty: Potter
Experts: Hufft, Rogers, Woodward

Idiopathic accident - cough
Claimant had serious injuries and sustained a two-level lumbar compression fracture following an auto accident. In a 2-1 decision, the Commission affirmed a denial of benefits by Judge Wilson based on an idiopathic accident defense that claimant's accident losing control of the vehicle flowed from an idiopathic coughing spell. The court specifically rejected the argument that driving the vehicle placed claimant at an "increased risk", in applying the post-05 amendments that excluded direct or indirect injuries from idiopathic events. The dissent involves a detailed rebuke of the decision in its detailed discussion of the 05 changes. The case is worth watching as it likely goes on further appeal. David Taylor v Contract Freighters, DOLIR 6-16-09. The notice of appeal was filed 7-14-09 (SD 29945) [reversed on appeal].

Showing up early - no accident as mutual benefit
Claimant in Hammonds v Columbia Mall Car Wash, DOLIR 9-21-09, failed to prove his slip and fall on ice and fracture to his ankle on the employer's premises before clocking in to work arose under the mutual benefit doctrine, when the claimant lacked credibility that he provided a mutual benefit by being there from routinely reporting early, inconsistent with time cards, or that he performed job related tasks like folding towels off the clock, contrary to the employer's testimony. Commissioner Hickey concurred on separate grounds that claimant failed to prove his accident arose from a single work shift and that claimant could pursue a civil remedy. Henry v Precision Aparataus, DOLIR 4-1-09, now pending before the southern district, SD 29772, reached similar conclusions on statutory construction, rather than as a credibility finding

Knee pop while walking not an accident
In a much anticipated decision, the Missouri Supreme Court affirmed a denial of benefits in Miller v Mo. Highway and Transportation Commission, 32 S.W3d 170 (Mo. 2009). In the case the claimant in September 2005 stated his knee popped at work while walking on a road, but could not identify any thing about the job that caused him to slip, strain, or fall. He subsequently required surgery for a symptomatic plica. The employer contested that claimant failed to prove the accident arose out of his employment under the new statute, amended weeks before his accident.
The court noted claimant proved that the accident arose in the course of his employment but did not arise out of the employment. Claimant's reliance on a pre-reform case that allowed compensation in similar circumstances, Bennett, was misplaced as the 2005 amendments specifically abrogated the holdings of Bennett and similar cases. The court notes that the claimant does not even mention that part of the statute nor did he preserve any constitutional challenge to the amended statute. Judge Teitelbaum, in a dissent, argues that even though claimant may have walked briskly away from the job, too, that work was not an equal exposure because work involved "physical and mental fatigue caused by a day of physical work."

Uneven ground
Claimant, a supervisor at a title firm located in a second floor office building, went down an elevator (not owned or controlled by the employer) to check on weather conditions for other employees and fell on an uneven surface while exiting the elevator, resulting in injuries to the knee. Claimant obtained a temporary award for further medical care when he did not return to work following a total knee replacement. The employer paid full salary for several months following the accident while claimant worked at home leading up the knee surgery.

The employer offered no medical evidence to dispute causation, and the surgeon Dr. McMullin found claimant's need for a total knee replacement flowed from the accident even though claimant had a history of two previous knee surgeries. ALJ Landolt sharply criticized the defense as ridiculous that the claimant's exposure to a trip hazard from a malfunctioning elevator was the same as any hazard in non-employment life. Niemeyer v Kozeny & McCubbin, DOLIR 1-21-10.

PTD cases (Fund)

2011-07-01T08:29:00.000-07:00

Impact of Prior Settlements
A 70-year old former line worker at Chrysler established he was PTD following hand surgery, relying upon the impact of multiple previous worker's compenation cases. Grayson v Daimler Chrysler, 2012 Mo WCLR Lexis 13 (2-2-12)
ALJ Lane
Atty: Parker, Cunnington
Experts: England, Israel, Volarich

Lack of evidence from fund
Claimant sustained multiple injuries when a ladder broke while he changed a light and he required 5 surgeries and did not return to work. The ALJ award PTD against the Second Injury Fund based on testimony from claimant's expert who found the employer liable for PTD, but then changed his opinion that the Fund was liable. The employer settled the case prior to hearing. The commission provided a supplemental opinion to provide further statutory analysis but affirmed the award, noting the lack of evidence introduced by the second injury fund to support its defense. It is unclear the timing when claimant settled the case with the employer and the claimant's expert modified his earlier opinions. Reed v Hutkin Development Co., 2011 MO WCLR LEXIS 261 (Dec. 20, 2011)
ALJ Lane
Atty: McChesney, Barnard
Experts: Poetz, England

Non-medical factors
The Commission concludes claimant failed to prove pre-existing PTD disability for a undiagnosed prior heart condtiion due to other non-medical factors noting fatigue complaints were not of a magnitude to require medical attention or work absence and his symptoms could have "just as easily" flowed from smoking cigarettes. Tombaugh v Chux Trux, 2011 Mo WCLR 252 (Dec. 9, 2011)

Still Working

The Commission affirmed an award of permanent and total benefits against the second injury fund for a 71 year old with long surgical history involving his back, shoulder and knees. The Fund noted claimant didn't have any restrictions, but ALJ Ottenad relied upon claimant's testimony that he altered his own work habits and that Dr. Volarich after the primary accident defined claimant's restrictions regarding pre-existing conditions. Claimant states he retired when he was 65, 6 years before the hearing, after a primary injury to his ankle from a slip and falltook him out of work 203 weeks and required 8 surgeries. James Harris v. Advanced Auto Parks, DOLIR 2-9-11.

ALJ Ottenad
Atty: Kendrick Shute
Expert : Volarich, England

The Commission affirmed an award of permanent and total disability benefits against the Second Injury Fund, rejecting the defense that claimant had not missed time recently and had been working leading up to a new back injury causing a "aggravation of his spinal syndrome." The Commission rejected testimony from the Fund's vocational expert that claimant's prior injury was not disabling, when claimant required a two-level lumbar fusion, he had been off work for several years, and on social security disability as a result of permanent restrictions. the Commission criticized the ALJ for incomplete factual findings. Fielder v NBA, DOLIR 12-8-10.

ALJ: Lane
Atty: Griffiths, Da-Niel
Experts: Volarich, Browning

Diabetes

Claimant, at age 61, had a job to subdue violent patients at a state hospital. In 2008 he scuffled with a patient who tried to jump a young cleaning lady and hurt his shoulder and back. He could not pursue any surgical options because diabetes made him a poor surgical candidate. An injection in his back caused elevated blood sugar levels. His expert concluded the diabetes alone produced 50% BAW disability. Claimant settled with the employer and obtained a PTD award against the Second Injury Fund because of the diabetes and a pre-existing heart condition. The ALJ concluded the situation rendered claimant an "invalid." The Commission rejected the Fund's appeal that claimant was PTD only because his diabetes in 2004 worsened after the accident, without apparently offering any medical evidence to support that assertion. The case is Fletcher v Fulton State Hospital, DOLIR 6-30-11. The Commission concluded that any worsening was irrelevant if claimant was already permanently disabled.

ALJ Herschel
Atty: Kiefer, Cunningham
Experts: Volarich, England
Treaters: Runde

Failed Return to Work
Claimant returned to work following her carpal tunnel surgeries and answered phones and sorted mail on a part-time basis, but the court of appeals affirmed a Commission finding that she was permanently and totally disabled, as a combination of her primary carpal tunnel claim and pre-existing disabilities that required surgeries to the foot, back and shoulder. The Commission concluded the ALJ misapplied the law by finding employment precluded an award of permanent and total disability The court considered her case a classic odd-lot claim, in which claimant returned to "highly unusual" conditions of employment not available in the open labor market, in which claimant could sit, stand, recline or elevate her feet as needed and not report to work if she had a bad day and her schedule varied from 0-20 hours a week. Three experts provided uncontroverted testimony that no employer would hire her in the open labor market and she was unemployable but for the numerous substantial accommodations, a finding that distinguished the case from Rector v Gary's Heating, 293 S.W.3d 143 (Mo. App. 2009).
The court noted the second injury fund misconstrued the de novo standard of review by the Commission. Molder v Mo. State Treasurer, WD 72977 (Mo. App. 6-14-11). No evidence is indicated that the fund offered its own expert in this pre-reform case.
http://www.courts.mo.gov/file.jsp?id=47203

Experts: Koprivica, Stuckmeyer, Langston
Judge: Ahuja

The Commission affirmed an award of permanent total against the SIF for a 2007 work injury involving a 73 year old claimant with bilateral knee and hip replacement. Claimant's primary injury involved a slip and fall while doing laundry. Pioske v Extended Stay, DOLIR 3-29-11. ALJ Gorman Experts: Strickland, Volarich, England The Commission affirmed an award of total disability against the SIF for a 2004 accident, after the employer settled. Claimant never returned to work after multiple neck surgeries, he collected TTD for nearly 3 years, and continued to require daily narcotics. He settled with the employer for the equivalent of 92% BAW, similar to ratings provided by Dr. Musich. The case is Wilder v Bartch Roofing, DOLIR 3-22-11.
ALJ Wenman
Atty: Wagner
Experts: Musich, Shea, Solman, England
Treater: Raskas

The commission reversed a denial of benefits against the second injury fund and awarded permanent total, based on undisputed expert testimony that claimant's primary back injury (an unoperated L5-S1 disc) in 2004 combined with a prior back injury in 1990 and a seizure disorder to render a 45 year old claimant, a truck driver, unemployable in the open labor market. Claimant stated he never pursued surgery becuase he could not be guaranteed a favorable outcome. The claimant never disclosed his 1993 seizure disorder to his employer which he treated for 1 year with Dilantin. He had an earlier back case treated with therapy that settled for 5%. ALJ Magruder had found the primary accident alone rendered claimant unemployable because of work restrictions and limited capacity that required him to walk with a cane, constantly alternate positions, and disturb his sleep. The commision reversed and found the experts did not find the last accident alone rendered claimant totally disabled. Claimant had apparently "worked" as an unpaid cashier for his girlfriend after the primary accident, and had a subsequent 2008 low back injury too. He had a previous "break" in his vocational career in the corrections system. The Commission based its findings of a prior hindrance of obstacle to employment by relying on claimant's expert who never provided a specific rating for the seizure disorder and concluded claimant's prior disability to his back was 20% (the earlier settlement was 5%). The lack of any medical or vocational evidence offered by the second injury fund provides little opportunity, however, for anyone to challenge the opinions of claimant's expert. The case demonstrates how the lack of candor to an employer about a prior medical history appears to sometimes support evidence of a prior disability, or at least the perception of a disability.Blake v Leo O'Laughin, DOLIR 2-10-11

ALJ Magruder
Atty: Kenter
Experts: Rope, Condray

Soft restrictions

The Commission affirmed an award of permanent and total disability benefits for a 66 year old woman following a multi-level cervical fusion because she accommodated herself to reduce symptoms and change jobs. Elwell v Stahl Specialty Co., MOWCLR LEXIS 232 (Nov. 15, 2011).

The Commission affirmed an award of permanent total disability against the second injury fund for a 62-year old left-handed claimant who required rotator cuff surgery after an 2008 accident pulling on a rope. He never returned to work when the employer was unable to accommodate light duty restrictions. Williams v Bloomsdale Excavating, DOLIR 8-10-10.

The employer settled for 27 1/2% of the left shoulder and claimant proceeded for permanent total benefits against the second injury fund. Claimant had a significant prior history of a 2004 surgical repair to the same shoulder and he was advised to avoid "heavy lifting" without formal restrictions. The exact lifting requirements of claimant's job after the first repair was unclear. Claimant's expert assigned pre-existing disability to the left shoulder in addition to the right shoulder, that never required surgery. A vocational expert retained by the SIF indicated that claimant could perform entry-level work despite the restrictions. At the time of claimant's accident claimant was a highly-compensated skilled union worker and had worked at power plants most of his career. Claimant relied upon vocational evidence that he lacked the ability to be retrained, noting spelling and math skills at levels years below his formal high school education. It is unclear from the decision how a potential employer would assess educational performance or that claimant's job duties in the past were ever adversely affected by impaired capacity to spell.

This case is an example of a response to second injury fund defenses in cases when claimant works without formal restrictions, by examining self-restricted and self-directed accommodations to establish pre-existing disability and potential synergistic impact. The case is important to also demonstrate potential fund liability for the same body parts and what evidence is important to show a job search. Claimant earned about $88,000 a year and testified he tried diligently to find work through his union hall where he would also socialize daily. In Roberson v Ben Hur Construction, DOLIR 7-15-10, a claimant was denied total benefits who did not consider all "gainful" employment but only jobs that paid an "appropriate" salary.

ALJ: Ruth
Atty: Barnes, Germinder
Experts: Eldred, Volarich, Lalk
Treater: Rothrock

In Shelby Mays v Arvinmentor, DOLIR 9-3-10, claimant reported she "always had difficulty" following 2 earlier shoulder accidents that had resulted in surgeries and prior comp settlements, and was awarded PTD benefits against the second injury fund after she settled her claim with the employer. Claimant then sustained a new "twisting" injury and underwent a multilevel lumbar fusion. The employer furnished 239,000 in medical benefits and 92 weeks lost time to the 63 year old GED-education claimant. Claimant settled with the employer or 36%, and stated she would have continued working but for the back injury.

ALJ Strange
Atty: Heckemeyer, Verhines
Experts: Levy, Shea
Treaters: Park

Truck driver with "considerable pain" awarded prior benefits
Claimant settled against the employer following surgical treatment for C4-C6, after he was struck from behind by a fast-moving jeep, and received an award for PTD against the Second Injury Fund. He reported following the accident he could barely move his neck, and had to nap 3-4 times a day due to regular use of narcotics and sleep apnea. Claimant testified his "considerable pain" represented a prior hindrance to employment, despite working as a truck driver and performing farm labor. Claimant's expert identified prior disability of sleep apnea and a prior 15% knee injury. The Commission affirmed an award of permanent and total disability benefits against the second injury fund, increased claimant's primary injury to 25% (settled at 22 1/2%), and re-calculated the MMI date, finding the judge miscalculated the MMI as the same month as the neck surgery. The case is Gutting v Campbell Trucking, 10-29-10. Increasing the PPD amount may be a hallow victory as it merely tolled the SIF payment date.

ALJ: Herschel
Atty: Effertz
Experts: Weimholt

Truck-driver awarded PPD benefits against fund for pre-existing > 400 weeks
The Commission affirmed an award of PPD benefits based on cumulative disability from various pre-existing conditions which exceeded 400 weeks, or what is numerically the equivalent of 100% BAW disability. Facio v DTS Truck, 2011 Mo WCLR 245 (Dec. 8, 2011)
Atty: Vogt
Experts: Volarich, Lalk, Hammond

Need to lie down
The Commission affirmed an award of PTD benefits against the Second Injury Fund to a 47-year old engineer who established his vocational impairment from his need to lie down frequently flowed both from his primary injury when he suddenly bounced while operating a back-hoe and from multiple prior back injuries (37 1/2% PPD prior settlements). The employer's expert Dr. Lange, treated claimant for his "bouncy" accident and performed a 2 level fusion (re-do), and rated 30% disability. Claimant reported he had resumed job duties without restrictions following his earlier cases but was helped out by co-workers and avoided bouncy machines. ALJ Carlisle noted claimant shifted positions and sighed during his testimony, similar to findings of his vocational expert who felt no one would hire claimant with light duty restrictions and 30 years experience as an engineer because he felt the need to nap during the day. The employer settled the case prior to the hearing. There is no description of vocational impairment flowing from claimant's other alleged pre-existing conditions of depression and cervical problems. John Larsen represented the claimant. The case is Sanders v Lionmark Construction, DOLIR 3-25-10.

The claimant sustained multiple injuries when he was rear-ended while driving a truck, and underwent bilateral carpal tunnel repairs and cervical multi-level fusion performed by Dr. Albanna, but returned to work with a full duty release until he was terminated about two years after his original accident. Judge Landolt found claimant unemployable in the open labor market, noting claimant had to lie down at times after he resumed driving, and he was considered by a vocational expert England unable to perform sedentary work due to a need to take frequent rests. The employer settled the case prior to the hearing, and PTD benefits were ordered against the fund. John Drieman v Central Paper Stock Company, DOLIR 6-24-09, was affirmed 3-0 by the Commission. Judge Landolt found the employer's experts not persuasive that claimant's carpal tunnel arose from risk factors of obesity and smoking (Dr. Ollinger) or that his neck problems arose from pre-existing degenerative conditions (Dr. Bernardi).

A rating for pre-existing heart condition was not persuasive for a PTD award against the Second Injury Fund when a 57 year old claimant was diagnosed with cardiomyopathy after his primary injury, and his expert's consideration of occasional shortness of breath complaints did not create evidence of a "measurable" disability. Tombaugh v Chux Trux, DOLIR 11-1-11 (2-1 decision)
ALJ: McKeon
Atty: Eppright
Expert: Koprivica

A 60-year old claimant who fell in 2004 on her employer's parking lot leaving work settled with her employer following bilateral knee replacements and sought a PTD recovery against the second injury fund, in part, because of a prior knee condition with AVN and COPD. The Commission affirmed a denial of benefits by the administrative law judge finding the claimant's expert was "unreliable" and "contradictory" and formulated opinions about prior COPD disability which were not documented in any exhibit and "undetectable by multiple medical providers." The case is Miller v JPS Automobile, DOLIR 7-29-10.

Atty: Stokes, Fields
ALJ: Wenman
Experts: Lichtenfeld, Israel, Nogalski

Back on back
A 47 year old claimant with a 10th grade education failed to prove she was permanently and totally disabled, when her vocational and medical expert failed to show how her primary back injury resulting in a L4-5 fusion synergistically combined with a prior back condition, and the expert did not establish disability from a foot condition existing at the time of the accident, when claimant described no treatment for several years and worsening of symptoms after the accident. Johnson v Good-Humor, DOLIR 1-26-10.

Failed return to work
The Commission recently affirmed an award of PTD against the Second Injury Fund in Bommarito v Nike,1 even though claimant had returned to work several months after her primary injury involving a single carpal tunnel release without medical restrictions.
Claimant returned to work as a blow molder operator for 6-7 months, and then claims she was unable to compete for gainful employment. The employer settled out the carpal tunnel claim and the case proceeded to hearing solely against the Fund. The Division awarded PTD benefits noting claimant’s continued carpal tunnel symptoms after surgery combined with her prior hip and paralysis involving the right hand, to make her unable to work. Claimant stated that she “limited” herself to 12 hour shifts, that she continued to have ongoing symptoms and did not have an “unrestricted” recovery and that her return to work was a failed attempted due to difficulty adapting to working new machines.

In Carpenter v Trio Masonry,2 the Commission reversed an award of PTD against the Fund, finding the employer alone liable for PTD due to seriousness of primary injury despite prior medical conditions that required career changes and long work medical absences. The case was appealed, with oral arguments on 11-4-09 WD 70946.
Claimant sustained multiple injuries when he was struck with a mixer in 2003, resulting in shoulder joint replacement and neck fusion, and proposal for further surgery replacement by Dr. Lowery, among other injuries. Claimant had a history of 2 previous surgeries to the operated shoulder with substantial work absence and job change associated with earlier treatment. The employer settled with claimant prior to hearing in Kansas based on $100,000 statutory cap. The Commission modified the award from 60% BAW against employer to PTD, noting that the last injury alone rendered claimant PTD.3

1. Bommarito v Nike, DOLIR 3-25-09 (Kohner)
2.Carpenter v Trio Masonry, DOLIR 3-25-09
3. In addition, claimant received disfigurement related to the cervical surgery. The award of disfigurement was not apparently contested, although the Commission previously reversed an award of disfigurement in PTD cases. Barke v Delta Roofing DOLIR 11-12-04.

Impact of pre-accident retirement
Claimant "retired" on social security but continued to work part-time for 8 years leading up to his accident as a bus driver, resulting in a back injury and surgery. The employer settled their liability for 25% for a L4-l5 disc, with history of previous l5-s1 disc surgery.

The second injury fund argued claimant was a working total, that claimant was on social security at the time of the accident, and that he was already PTD due to neck and back surgeries prior to the most recent work injury and claimant failed to prove any synergistic effect between primary and prior conditions. Judge House found claimant's social security qualification not dispositive, and that claimant's limited hours flowed from claimant's desire to self-limit his income in order to keep his social security benefits and not from limitations of his physical condition. Judge House, however, later found over 50% disability from pre-existing conditions. SIF owed $9755 but ducked the PTD liability for the 48-year old claimant. Judge House also noted treating physicians imposed no restrictions after the last surgery and claimant's expert Dr. Koprivica could not provide any specific rationale why he lowered his initial "restrictions" from 20 pounds to 10 pounds.

The case is Darryle O'Conner v Ozark R-4 School District, DOLIR 7-14-09, affirmed unanimously by the Commisssion. A similar defense was rejected in Johnson v Wal-mart, 4-8-09.

Hearing Loss Cases

Claimant is a retired machinist who claims he could never work again and was awarded PTD against the Second Injury Fund, after an initial denial of PTD benefits by the administrative law judge. ALJ Hart concluded that his primary injury of hearing loss did not combine with his overall disabilities to make claimant PTD but assessed PPD and open medical. The ALJ recited numerous prior conditions: "He had trouble completing his job because of his sleep apnea, he had trouble with all aspects of his job and had to get co-worker’s assistance, and he was extremely fatigued at work. He can’t work now because of his COPD, edema, obesity, apnea and diabetes, and “maybe” his hearing loss. He testified he got to the point he was unable to perform the basic essentials of his job, and he used all his sick, vacation and FMLA days prior to retirement. He simply got to the point he couldn’t do the job anymore. None of his job duties required hearing. He terminated working because he was unable to do so physically, and the hearing loss played no part in that decision."

The Commission found such findings unsupported by the record, noting the significant loss of hearing and concluded that accurate hearing was an essential job function as a machinist. Dr. Poetz, claimant's expert, provided a 35% BAW loss for hearing and extensive ratings of pre-existing disability in excess of 100% BAW, including injuries dating back more than 50 years in claimant's life. The Commission noted the employer had already settled the case, and then, interestingly, modified the finding of disability for the primary injury from 49% binaural loss (89 weeks) to 35% BAW, adopting Dr. Poetz' rating (140 weeks), which effectively tolls the Funds' duty to pay for nearly a year. the Commission case is Golleher v Mcdonnell Douglas, affirmed by the Commission on May 5, 2009.

Waitress loses PTD claim against fund disregarding opinion of second forensic expert
Claimant worked as a waitress, fell on some glass, and severely injured her dominant hand causing numbness and loss of grip. After settling the claim against the employer for 80% of the hand, she sought permanent and total benefits against the second injury fund. The Commission affirmed an award of PPD benefits.

Judge Wenman deferred to claimant's treating physician Dr. Hanaway, who assigned PPD ratings, instead of Dr. Poetz, an evaluator, who found claimant unemployable. Among Dr. Poetz’ findings to support PTD included a childhood surgery for a heart defect that produced no further symptoms. (Claimant is 43). Judge Wenman noted that Dr. Hanaway had provided two different ratings for narcolepsy and tripled his earlier rating from 10% to 30% “after he determined that he had under-rated the condition.” The employer settled the case for 80% of the hand based on a rating from claimant’s expert, Dr. Poetz, to close out future medical. Werremeyer v Yesterdays’ Restaurant, DOLIR 1-21-10.

In Banaszekv McCarthy Bros., DOLIR 87-12-11, the Commission affirmed an award of PTD against the second injury fund when the fund offered no evidence to contest allegations. Claimant sustained a primary shoulder injury that required 5 surgeries, and claims becuase of prior psychiatric issues that affected his capacity to handle stress and deal with the public he was unemployable.

Atty: Larsen
ALJ Vacca
Experts: Volarich, Sky, Lalk
tx. Mahadeven

In Jamison v St. Lukes, DOLIR 8-12-11, the Commission affirmed an award of PTD against the second injury fund noting a back injury combined with a prior knee injury and found the SIF's vocational expert who performed only a records review less persuasive than claimant's expert. Further opinion was issued to identify unequivocal findings in a "close" case. The SIF expert agreed claimant was PTD but blamed the last accident alone.

ALJ Denigan
Experts: England, Volarich

In Rose v Trans Wood, DOLIR 7-1-11, the Commission affirmed an award of PTD against the second injury fund when a primary back injury with a pinched nerve was found to combine with a prior back condition and an earlier leg condition that required 11 previous surgeries. The award identifies no expert evidence from the SIF to rebut Dr. Volarich's opinions.
ALJ Vacca
Atty: John Johnson, Jr.
Experts: Volarich

In Treasurer of the State of Mo. v Steck, WD 73110 (Mo. App. 5-31-2011) the Second Injury Fund offered no expert evidence to support its defense that the last accident alone rendered claimant permanently and totally disabled. Claimant's medical and vocational expert found the last accident alone supported only permanent partial disability, and claimant described ongoing symptoms related to pre-existing conditions. The Fund did not dispute that claimant was PTD.
In Skyles v Laclede Gas, DOLIR 3-29-11, the Second Injury Fund was found liable for PTD benefits for a 59 year pipefitter injured in 2005. Claimant settled his primary shoulder claim with his employer and proceeded against the Fund. His medical history included multiple spinal surgeries, including a C5-T1 fusion and L4-L5 fusion, bilateral carpal tunnel releases, and prior injuries to his shoulder and back, which he also alleged in his primary injury. ALJ Lane Atty Dalton Experts Volarich, England In Steck v Blue Wood, DOLIR 9-28-10, the Commission reversed a finding of no SIF liability and awarded claimant PTD benefits against the SIF. The ALJ denied SIF benefits, finding claimant's PTD flowed from a back injury and three level surgery that impaired claimant's ability to sit, stand, and created dependence on vicodin. The employer had settled the case for 28% involving a 60 year old maintenance worker who never returned to work after his back surgery. The commission noted twice the lack of evidence presented by the second injury fund. ALJ: Dierkes Atty: Barnes Experts: Carr, Eldred In Pate v Atmos Energy, DOLIR 9-28-10, the Commission affirmed a PPD award of $7635 against the Fund based on synergistic effect from back injuries in 2003 and 1987, noting no medical evidence offered by the Fund to "offset" the credibility or findings of claimant's expert. The claimant indicated after his 15% settlement in 1987 he returned to work but modified his activities, and in 2003 his symptoms produced a 40% settlement but were worse because they required 2 back surgeries at different levels to distinguish a "back on back" defense. ALJ: Robbins Atty: Keersemaker Experts: Berkin Treaters: Dr. Lecorps In Murll Brown v Strong Alarm Co., DOLIR 9-3-10, the commission affirmed a PTD award for a 67 year old claimant who allegedly aggravated cervical stenosis after striking a deer, and continued to have chronic global pain and myelopathy despite a cervical laminectomy a few months after his injury. FCE restrictions precluded his return to former primary employment as a fire alarm installer. Claimant established neck injuries in March 2000 from falling from a ladder, a few months before re-injuring his neck again in November 2000 after striking a deer at high speed. No expert is identified for the fund. Atty: Martin, Fournier Experts: Struckmeyer, Drieling In Reed v Govt Employees Hospital, DOLIR 7-29-10, the Commission affirmed a PTD award against the second injury fund when the Fund did not put on any evidence. Claimant settled repetitive trauma injuries to the elbows from work as a customer service representative, and states the primary injuries to her arms worsened her depression. Claimant had numerous prior medical conditions including migraines, depresson, ankle fracture, and short bowel syndrome. The adminsitrative law judge notes a prior 6 month FMLA reflected prior disability from a psychiatric condition, and that the employer provided accomodations that might not be available in the general labor market such as a stool for her ankle and a glare screen for her computer. Claimant had to use the bathroom more frequently due to dumping syndrome, and ALJ Fowler made a curious observation that it was it was an "unacceptable practice" in the open labor market to hire someone because she had to use the bathroom more often at "unpredictable" times. The Second Injury Fund asserted that claimant's doctors did not impose prior work restrictions and did not mandate any special accomodations. ALJ: Fowler Atty: Smith, Seliga Expertrs: Titterington, Koprivica In Porting v Contractors & Municipal Sweeping, DOLIR 6-17-10, the Commission affirmed a PPD award against the second injury fund based on ratings from Dr. Poetz that claimant had 79% BAW pre-existing disability, despite a vocational history that he worked as a street-sweeper up to 12 hours a day and had no restrictions from prior spinal surgeries. The adminstrative law judge found Dr. Poetz not credible on a companion case that a toe blister from a poor-fitting boot caused 30% disability to the foot without findings related to pain, diminished strength or range of motion. No experts are identified for the Fund in the claims of permanent total for a claimant who did not return to work after the 2003 accident when a metal skid fell on his foot. ALJ: Gorman Attorney: Logan, Waggener Treater: Polish Experts: Poetz In Doyle v Schreiber Foods, DOLIR 6-10-10, the Commission affirmed a PTD award against the second injury fund noting claimant was unemployable after a L4-5 fusion, and that her primary injury combined with a prior back settlement and evidence of prior depression. The second injury fund offered no evidence to refute disability which the administrative law judge described as overwhelming. The Commission modified a 100 week cap on attorney's fees, noting claimant's counsel provided "significant" services, and "corrected" an award of attorney's fees at 20% consistent with the request of claimant's counsel. ALJ: Denigan Attorneys: Dalton Treaters: Kennedy, Raskas Experts: Volarich, Sky In Wiltse v MaryEngelbreight Co., DOLIR 11-17-09, the Commission reversed a denial of benefits against the second injury fund and found claimant permanently and totally disabled as a result of bilateral epicondylitis (primary) and carpal tunnel with severe depression (prior). The employer settled prior to the hearing. The Commission criticized the ALJ's determination that he had no subject matter jurisdiction, and that the claim was precluded under the last exposure rule against the employer by a claim filed more than 3 months after claimant was self-employed. The Fund offered no records or expert evidence. In Stecher v Dr. Oliver, DOLIR 10-20-09, the Commission reversed a denial of benefits and awarded $6778 for 10% enhancement for a 37 1/2% primary neck injury superimposed on prior degenerative cervical conditions. Judge Lane's finding that Dr. Volarich's rating lacked credibility was not supported by a specific finding in the record but a personal belief that it felt too high. The Commission noted this did not satisfy the evidentiary challenge to show "sufficient support for its determination" to disregard uncontroverted evidence. In the case the second injury fund did not offer any witnesses, experts, or records to refute Dr. Volarich. In Rector v Gary's Heating & Cooling, SD 29641 (Mo. App. 9-28-09), the court rejected SIF appeal that either of claimant's two job injuries, by themselves, rendered claimant PTD, contrary to the opinion of its own vocational expert, Jim England. The Commission rejected an opinion of vocational expert Swearingin that claimant's first injury rendered claimant PTD, when claimant continued to work several months before making a second claim of occupational disease. The Commission found claimant 65% disabled as a result of the first injury, based on ratings of Dr. Volarich who rated claimant with 60% BAW disability for various disc bulges and chronic regional pain syndrome, resulting in multiple daily medications. In Burger v Bloomside Excavating Co., DOLIR 9-23-09, claimant established he was permanently and totally disabled in a claim against the Second Injury Fund, in a case in which the Fund offered no expert evidence on its own. Claimant testified he changed jobs from concrete work to mill-work to establish pre-existing disability, although he conceded no doctor placed any restrictions on him nor was he maintained on medications. Judge Robbins noted claimant's presentation at the hearing of symptoms of pain and depression particularly convincing, noting claimant even asked permission to stand because of symptoms. The employer had settled for nearly $74,000 prior to the hearing based on alleged psychiatric and orthopedic injuries involving a 49-year old claimant making $1000 a week. Tom Gregory represented the employee. In Stecher v Donald Oliver, DOLIR, 9-24-09, claimant established she was permanently and totally disabled in a claim against the Second Injury Fund, in cases in which the Fund offered no expert evidence on its own. Claimant, a 64-year old orthodonic assistant, had two falls at work resulting in a L4-L5 fusion and a multi-level cervical fusion. Claimant asserted she had prior cervical disc disease. The commission found claimant unable to work and concluded the Commission could not arbitrarily disregard medical evidence that was not impeached establishing pre-existing disability. The administrative law judge had concluded the rating "felt" too high, and could not identify how the expert's opinions that claimant could not work were unduly tainted by irrelevant post-accident medical conditions, such as claimant's bilateral knee replacements and carpal tunnel release. The employer settled prior to the hearing.

The court of appeals remanded an alleged permanent total claim against the Second Injury Fund based on knee arthritis. The Commission denied benefits that claimant’s work-related occupational disease did not combine with pre-existing arthritis to trigger fund liability because claimant never had an occupational disease in the first place. The case is Angus v Second Injury Fund, WD 72141 (Mo. App. 10-12-10). http://www.courts.mo.gov/file.jsp?id=41639

Angus stands for the proposition that the ALJ may not disregard uncontradicted evidence on causation, but does not stand for the proposition that the ALJ must accept uncontradicted opinions on disability. Niemann v Ford Motor Co and Treasurer of Mo, 11-1-11 (2011 mo wclr lexis 213)

(PTD against fund)
Experts: Koprivica , Titterington

PTD Cases (employer)

2011-06-24T09:09:00.001-07:00

No transferrable skills

The commission affirmed an award of PTD against the employer related to a 2000 accident when a 63 year old claimant had a crush injury from a 1700 pound cable resulting in multiple fractures to his hip, pelvis and femur; an irreparable nonunion due to a heart condition, and permanent incapacity for prolonged standing. The employer had paid more than $200,000 in benefits for medical and TTD.

Claimant had worked 29 years for the employer as a heavy equipment operator and the administrative law judge concluded that claimant had no capacity to work within sedentary restrictions because he had no transferable job skills. The employer’s vocational expert suggested claimant could work light duty and return to his former job. Claimant described limited tolerance to standing, sitting or walking. Andrews v National Steel Erectors, DOLIR 6-24-11.
ALJ Kohner
Atty: Floyd
Experts: Berkin, England, Pettigrew, Cox
Treater: Dunitz

Multiple surgeries

Claimant was awarded permanent and total disability benefits and medical bills of $122,059 following multiple back surgeries at the same disc level as a result of a 2004 accident. The ALJ found claimant's fusion in 2008 flowed from the original accident and not a subsequent re-injury at work. His original accident arose when he operated a bobcat which dropped about a foot. Pebworth v Green Horizons Garden Center, DOLIR 4-27-11.

ALJ Fischer
Atty yskowski
Experts McQuery, Heim, Bennoch, Eldred

Need to lie down/elevate feet

Claimant established he was permanently and totally disabled from a failed back syndrome following l4-5 surgery with persistent symptoms. Claimant's expert identified a need to change posture as needed and recline. Graubinger v Atlas Van Lines, 2011 Mo WCLR Lexis 260 (Dec. 20, 2011)
ALJ House
Atty: Childers, Lutke
Experts: Bennoch, Rusell, Halfaker, Eldred, Lennard, Wolfgram, Hammond
Treater: Mace

The Commission reversed an award of PTD against the SIF and found the employer liable for PTD when the 62 year old claimant hurt his back bending over to pick up safety glasses, had two back surgeries, and claimed he needed to lie down 4-8 hours a day due to pain. Buhman v Johnson Controls, 2011 MOWCLR 250 (Dec. 9, 2011).
ALJ Allen
Atty Whipple
Treater: Peterson
Expets: Egea, Dreiling, Bernhardt, Bankowski

The first step to determine liability for a PTD is whether the first accident alone with the employer renders claimant unemployable. In Skidmore v Coleman Trucking, DOLIR 2-24-11, the Commission found that the last accident in 2004 alone rendered claimant unemployable. Since claimant had already settled with the employer before hearing he could not recover anything more from the second injury fund.
In this case, claimant's expert concluded claimant should rest "when needed" and his need to lie down flowed mostly from the last accident. Claimant stated he spent half the day in a recumbent position. The vocational experts concluded that claimant could not compete in the open labor market if he needed to spend most of the day in a recliner or lying down. The award is silent if any treating physician ever recommended claimant lie down to cure or relieve any symptoms from his accident that occurred six years before the hearing. Claimant had degenerative conditions, steroid injections, but no surgeries for his back.
The Commission issued a separate opinion and found that the award from the ALJ did not completely identify all of the pertinent facts for the denial of SIF benefits.

ALJ Strange
Atty: Seufert, Johnson
Experts: Volarich, Lange, Abrams

The need to lie down proved to be a toxic work restriction according to Stark v Thompson Carpenter, DOLIR 3-17-11. Claimant worked 25 years as a carpenter for the employer and hurt his back trying to grab a falling chute. ALJ Wilson found that the 2005 work accident substantially caused claimant to aggravate his prior lumbar stenosis, causing pain complaints resulting in permanent total disability. Claimant was 61 with 6-8th grade reading and math skills. He quit his job in March 2007 after nearly 2 years on modified duty following the accident. The employer accepted the accident but disputed further medical care when a surgeon recommend myelogram studies in Sept 2007, 1/2 year after claimant stopped working. The ALJ awarded permanent disability and open medical, based on multiple restrictions from clamant's expert, Dr. Volarich, including the need to lie down. Dr. Volarich concludes that claimant is at MMI but still requires treatment from a surgeon. Compare Cantrell v Baldwin Transportation, No. SD 29642 (Mo. App. 10-21-09).(MMI not supported when claimant needs further surgery). The award contains some typos that mistakenly identified Dr. Volarich as Dr. Koprivica.

Atty: Van Camp, Mayes
ALJ Wilson
Experts: Volarich, England, Lennard, Titterington

The need to lie down or recline 1/2 of the day was an important factor to find claimant was unemployable in the open labor market after claimant slipped on a mat at work in 2005 and continued to report chronic back pain and instability following a L4-S1 disc surgery. The ALJ found it important how claimant used a cane and shifted in his seat. Claimant was a 64 year old 29-year employee who had permanent restrictions that prevented his return to his former job. The employer's expert concluded claimant was unemployable, but concluded although the work injury caused a L4-L5 herniation, the additional surgery to L5-S1 flowed only from degenerative conditions and but for that surgery claimant could have worked sedentary duty. ALJ Kasten concluded claimant had a pre-existing back condition that was not disabling, although claimant had treated ayear before the accident for back pain with radiculopathy. ALJ Kasten denied any SIF liability on the basis of claimant's Vietnam-era PTSD, which required more treatment following work accident. The ALJ denied a credit for 6 months of short-term disability benefits without proof the benefits were paid by the employer, and excluded business records served on the day of the hearing. Pruett v Federal Mogul, DOLIR 4-27-11.

ALJ Kasten
Atty: Guirl, Merritt, Verhines
Experts: Lange, Abram, Musich, England
Treater Yingling

The need to elevate claimant's foot rendered him unemployable when he had a limited education and no transferable job skills. He sustained a tendon rupture and fracture resulting in a triple arthrodesis and increased his shoe by three sizes. Claimant alleged his injury affected his gait resulting in additional injuries to his knee, back, and depression. Claimant had worked for the employer for 30 years and claims his foot hurt when he was squatting trying to move a stuck cart. Harrison v Thyssenkrupp, DOLIR 7-19-11.

ALJ Siedlik
Experts: Stuckmeyer, Schmidt, Titterington, Wheeler, Horton, Cordray

Neck claim
A 61 year old long-term city supervisor claims he hurt his neck and shoulder trying to open a "stuck" metal door in 2003, and established he can never work again due to pain management issues, in the case Billy Williams v City of Kansas City, DOLIR 5-18-10.

Claimant was diagnosed with a C7 radiculopathy and was told he could not have surgery because of his heart condition. Claimant reported he developed depression fighting with his employer regarding authorization to obtain oxycontin refills. ALJ Siedlik quotes extensively from claimant's e-mails which include the subject line: "pain and suffering." An expert contends claimant's subsequent stroke flowed from his accident trying to open a door when he became so depressed he suddenly stopped taking medication. Claimant testified his arm hurts, he is sad, he doesn't like people and has weird thoughts. The employer offered no expert opinions to refute claimant's vocational expert.
Attorneys: Eppright, Bush, Seliga
Experts: Dahl, Koprivica, Titterington, Schmidt
Treaters: Price, Menninger
ALJ: Siedlik

Claimant received an award for permanent and total disability benefits and open medical following a two level back surgery from a a 2003 lifting accident handling heavy canvas rolls. The employer had paid over $185,000 in medical and lost time benefits for two separate back surgeries. ALJ Robbins denied some bills following a back surgery as the record was not clear whether the claimant had demanded care prior to obtaining services. Claimanat was 61 years old, with a 10th grade education, and worked as a truck driver for 7 years for the employer prior to the accident. The employer offered no evidence to dispute an award for future medical treatment, as supported by claimant's expert Dr. Cohen. Tilley v USF Holland Inc., DOLIR 1-21-10.

Dilks v U-Haul, DOLIR 2-3-10, is a case in which the employer settled with the claimant and the administrative law judge in a subsequent case against the Second Injury Fund denied benefits and concluded claimant's case against the employer was a PTD, instead of the PPD reflected in the settlement. Claimant's prior injuries before his hand surgery included an operated lumbar disc surgery and diabetes. Claimant, 48, sustained multiple fractures when a barrel exploded and he developed complications of CRPS and mood disorder. Experts concluded he would require future medical for CRPS and psychiatric disability, despite an invalid MMPI. Administrative Law Judge Carlisle considered claimant's return to work for 7 months as a detailer a failed return to work attempt that did not preclude a finding of PTD against the employer.

Claimant, 63, established he sustained 5% disability in a claim against the employer for tinnitus due to sound exposure from working as a street worker. Claimant testified he could not hear his attorney's "soft voice" over the telephone. The Commission affirmed an award of permanent and total disability benefits against the second injury fund, noting claimant's fatigue complaints from chronic pain made him too sleepy to compete in the labor market. Claimant's prior medical conditions included an unoperated rotator cuff tear, knee gout, an undiagnosed back injury, and and insulin-dependent diabetes since 1970 that made him unable to remain alert during the workday. The decision does not address why the diabetic-induced sleepiness was never an issue during claimant's 38 years of employment operating a chipper, trucks and heavy equipment for the City. Watson v City of Kirkwood, DOLIR 2-4-10 (Carlisle, J)

Claimant in Taylor v City of Kansas City, DOLIR 11-4-09, established he was permanently and totally disabled as a result of multiple injuries flowing from a 2002 accident when a 52 year old security guard at the city jail and 4 other officers tackled a young inmate who was snapping towels at an officer and then tried to run away. Judge Siedlik details several new accidents which flow from the original trauma, ultimately resulting in multiple surgeries and over $145,000 in medical expenses including: four lumbar surgeries, three right knee surgeries, including a right total knee replacement and a 2nd replacement revision surgery. He also underwent two surgeries on the left knee as a result of the primary injury, including a left knee replacement. In addition, claimant has undergone a cervical fusion, bilateral carpal tunnel surgery, and bilateral elbow surgery, as well as at least two replacements of his pain pump, Judge Siedlik found that claimant did not establish his PTD arose from a combination despite a prior back surgery, a prior back settlement, 4 previous knee surgeries and other medical conditions, as claimant reported he had "no problem" from the earlier conditions and the last accident alone was of such severity to render claimant unemployable.

The Commission affirmed an award of permanent and total disability benefits to a 59-year old claimant with multi-level cervical fusion and chronic symptoms of pain, nausea and dizziness in Proffer v Federal Mogul, DOLIR 9-1-10. Claimant’s original surgeon, Dr. Chabot, could not explain claimant’s chronic dizziness and felt it might flow from a vascular condition. Claimant testified the symptoms began after a 3 level cervical fusion. Experts disputed whether or not claimant's symptoms could be explained by Meniere’s disease. Claimant’s own surgeon, Dr. Park, attributed the dizziness to the work accident and claimant’s vocational expert indicated the dizziness symptoms limited claimant’s capacity to work. Claimant’s own family medicine expert could not explain how vertigo flowed from a neck injury, but testified the condition was work related.

The administrative law judge awarded PTD benefits and approximately $87,000 in back TTD and medical bills related to claimant’s disputed second surgery performed by Dr. Park for an alleged “non-union.” The employer failed to show the second "redo" fusion was unreasonable. The experts deferred to testify directly that Dr. Park had performed a surgery that was not medically necessary. Dr. Chabot was asked three times and testified he would not have performed the second procedure, he found no radiological justification to perform it, and the radiologist after the first surgery found no evidence of a failed fusion. Dr. Park admitted he was unable to visualize any non-union, but stated his evaluation was obstructed by his surgical approach.
Claimant had worked exclusively for the employer since he was a teenager, and had two previous settlements involving his neck and back. Claimant was found to be totally disabled as a result of the last injury alone.
ALJ: Murphy
Atty: Guirl, Merritt, Verhines
Experts: Park, Musich, England, Chabot, Abram, Cizek, Mikulec

Failed return to work
The claimant had a back surgery in 2004, nearly five years after she slipped on a wet floor at a fast food restaurant and caught herself on a counter. An administrative law judge found claimant's surgery flowed from the accident and awarded total benefits based on post-surgical 10 pound work restrictions and continued need for the vicodin. The Commission modified the award to permanent partial disability, and found the 42 year old capable of gainful employment, noting her capacity to work part-time with 20 pound restrictions after the initial accident. Claimant had not worked for nearly a year after she claims her back suddenly hurt worse in 2003 leading up to the 2004 surgery. The Commission reversed an award for TTD for this period from 2003-2004, noting none of the treating physicians after the 2003 "flare-up" took her off work completely, and claimant's only medical expert p examined claimant 11 months after she first started missing work and concluded retroactively that she was temporarily disabled. Courtney v McDonalds Restaurant, DOLIR 3-22-11.
ALJ Denigan
Experts: Cohen, Chabot, Dolan, England
Treaters: Kennedy, Graham

Claimant's capacity to return to work for 1 1/2 years after her back injury defeated her claim that she was permanently and totally disabled. Her duties such as data entry, answering phones or monitoring suicidal patients were not regarded as "accommodated" work duties not available in the open labor market.

Claimant moved a patient in 2001 and her back popped, resulting in conservative care for a strain and 20 pound permanent restrictions. Claimant's job at the time was as a health care technician and she continued to work essentially a "desk" job. The court considered the nature of her job duties after her accident, and the duration of her employment, to determine if her post-accident employment was a bonafide return to work in the open labor market or merely sporadic employment. Claimant contends she was only employable with KU Medical Center because of accommodation, and that her position ended when the employer was no longer able to accommodate her restrictions.

Claimant received PPD benefits of nearly $20,000 against the employer (back strain) and Second Injury Fund (diabetes) but appealed her denial of a PTD claim against the second injury fund that her back strain combined with prior diabetes and arterial disease to make her unemployable. She last worked in 2003. The case was tried 7 years later in 2010. Claimant failed to show prior disability as it existed at the time of the work-injury was sustained combined with the primary injury to render her permanently and totally disabled.

Claimant contends the second injury offered no vocational evidence and her vocational testimony was uncontradicted. The commission, however, concluded claimant's own testimony contradicted her expert. Claimant testified her symptoms related to the heart did not require any restriction and described her condition as "fine." Claimant testimony that she could not continue her with current employer did not satisfy the standard of total disability that she could not return to any gainful employment. Selma Lewis v Kansas University Medical Center, WD 73817 (Mo. App. 12-6-2011).

Judge: Welsh
Experts: Koprivica, Titterington

Claimant's return to work did not preclude award of total benefits. Claimant received an award of 9% for his primary injury and PTD against the Fund which included chronic adjustment disorder. The fund stipulated to facts on appeal when the court lost the transcript of the hearing and the fund then abandoned two points on appeal. Beard v Hy-Vee Foods, DOLIR 10-26-2011 (2011 mowclr lexis 211).

alj: fischer
atty: Lyskowski
experts: Volarich, Stillings,

Claimant's return to work for a brief period without restrictions and continued capacity to ride motorcycles and play golf did not preclude a finding of permanent and total disability benefits, according to the Commission which modified an award against the fund from PPD to PTD. The Fund offered no medical or vocational testimony to rebut the findings of claimant's experts.

ALJ Tackes
Atty Haupt
Experts: Volarich, England

Claimant, 38, established he was permanently and totally disabled after falling from a 40-foot bridge and sustaining traumatic brain and orthopedic injuries, and his return to work for 4 years for the same family business as a concrete foreman/backhoe operator represented a failed return to work attempt , based on evidence of poor job performance, including multiple accidents causing $20,000 in equipment damage. Claimant testified that he recovered from his orthopedic injuries but still had depression, dementia and personality change, which his expert Dr. Stillings had assessed at 75% BAW. Dr. Halfaker, the employer's expert, concluded claimant was 15% disabled and could compete for "simple" employment, an opinion shared by claimant's own vocational expert. Judge Dierkes rejected a motion for fees, noting the employer had bent over backwards for the claimant to try to return him to work. Williamson v Emery Sapp & Sons, 3-16-10.

Claimant's attempt to return to work part-time (18 hours) was a failed return to work attempt following his primary shoulder injury, and claimant established he was not capable of gainful employment in his claim against the second injury fund. Evidence of DUI/alcohol abuse did not preclude a finding of PTD. The Commission affirmed a finding of a Kansas settlement to find disability level on the primary claim. The Fund offered no expert evidence to dispute claimant's vocational and examining expert. Vann v A&E Custom Mfg., DOLIR 3-8-11.

ALJ: Mueller
Atty: Slocum
Experrts: Drieling, Koprivica

287.140: Future treatment "as may reasonably be required"

2011-06-14T14:01:00.000-07:00

The problem: Claimant has a knee injury at work but a menisectomy won't fix it because of arthritis. Does the employer owe for the more complicated surgery of a TKR? The Western District now says it does. The case is Tillotson v St. Joseph Medical Center, WD 72948 (Mo. App. 6-14-2011).

Claimant injured her knee when she lost her balance while moving a patient and tore her meniscus. The torn meniscus and degenerative changes both contributed to her pain and symptoms. The doctors agreed that claimant was not a candidate for an arthroscopy because of arthritis, and only a knee replacement would resolve her symptoms. The employer's expert concluded that the prevailing reason for the knee replacement flowed from her arthritis, and not the work injury. Claimant underwent a total knee replacement. Claimant returned to her regular job duties as a registered nurse for about 10 months after her surgery and retired. Claimant's expert concluded the accident caused the tear and caused the arthritis to progress.

The Division found that the accident was the prevailing factor in causing an acute lateral mensicus injury. The Commission found that Dr. Koprivica's causation opinions were less credible, noting the other experts were board certified and had practices centered on treating patients. The Commission noted that he was a well-qualified rating doctor. The Commission denied any claim for medical costs, TTD, future medical or PPD.

The Court of Appeals reversed and concluded that the Commission applied the wrong standard and a heightened burden of "prevailing factor" in 287.120.1 to interpret the requirements to provide medical care under 287.140.1, adopting the opinion of the dissenting commissioner. The parties agreed that the accident was the prevailing factor in the meniscus tear. The proper standard was whether the disputed treatment (TKR) was "reasonably required", not whether it was the "prevailing" factor. No expert indicated that it was not reasonably required, and the employer conceded such treatment was reasonable. The court noted as long as some portion of the treatment flowed from the accident, it is irrelevant whether such treatment also alleviates pre-existing conditions such as arthritis. No medical expert disputed that a total knee was the only effective available means to cure or relieve the effects of claimant's torn meniscus.

In Gordon v City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008) the Eastern District found claimant had failed to prove injury when a shoulder surgery identified no acute changes. The Western District concludes that Gordon did not involve construction of 287.140.1 but was an issue whether a compensable injury occurred. The court in Gordon, however, framed the issue whether the accident was the prevailing factor in causing claimant's need for shoulder surgery.

The court remanded the case for a determination of disability. Claimant's expert Dr. Koprivica assigned 50% but the Commission rejected his opinion because he did not allocate disability from the meniscus tear and total knee replacement. No other doctors furnished any PPD opinion. The court of appeals concluded the disabilities "coalesce" and apportionment was not required. The court concluded claimant established future medical care based on the uncontroverted opinion of Dr. Koprivica when other experts were silent on the subject whether or not future care was indicated or not.

The Tillotson case is factually similar to an earlier western district case, Conrad v Jack Cooper Transport, 273 S.W.3d 49 (Mo. App. 2008) in a pre-reform case. "Conrad had a pre-existing condition, which is the primary reason he needs a future knee replacement, the undisputed evidence also establishes that, at the very least, his work related injury aggravated his pre-existing condition to the point that he will need a future knee replacement. Because Conrad's work related injury aggravated his pre-existing condition to the point that he will need future treatment, his future treatment is compensable under § 287.140.1." The court in Tillotson noted statutory reform did not change 287.140.1.

Tillotson shifts the fight to 287.020.3 and whether the accident was the most important factor to cause both the medical condition and disability and does not disturb defenses when there is evidence that an accident did not reasonably cause any need for a disputed surgery. The implications of the decision may have long term exposure for any arthritic employee applying the unfortunate adage : "You break it, you buy it."

Experts: Koprivica
Treaters: Van den Berghe

The Commission modified an award for future medical to include pain management, but reversed an award to include total knee replacement. Claimant prior to the accident was told he would need a knee replacement, and alleged he felt he needed it sooner because of the accident. The Commission in a separate 2-1 award found that the employer was not responsible for medical when an accident merely accelerated the time employee would agree to have a total knee replacement, as the need for treatment itself did not flow from the accident. The Commission awarded Dr. Volarich's rating when the employer offered no evidence on PPD. The award of the ALJ is not attached to the decision. Shelton v Levy Restaurant, DOLIR 5-25-11. affirmed without separate opinion, 2012 Mo. App. Lexis 50, ED 96886 (Mo. App. 1-17-2012).

ALJ: Denigan
Experts: Anderson, Kramer, Ralph, Volarich

Appeal: no ineffective assistance of counsel claim

2011-06-09T11:21:00.001-07:00

Claimant failed to prove his bilateral hip surgeries as a result of avascular necrosis flowed from activities at work moving 3OO pounds of material, when his treating surgeon testified that's not "how it works" and had more knowledge of claimant's symptoms of prior problems. Claimant stated he woke up the next day with pain. Claimant appealed alleging ineffective assistance of counsel, and had attempted to rely upon the opinion of his expert, a neurologist, and research from Wickipedia. Claimant failed to preserve as error when no parties appeared in response to subpoena. The case is Hayden v Ameriwood Industries, DOLIR 6-9-11.

ALJ Kohner
Experts: Cohen
Treaters: Albus

Failure to file rules - effect on appeal
Claimant alleges the Commission wrongfully denied her benefits when she was walking down the hall when her knee popped out of place, and that her case was distinguishable from Miller v Mo. Highway and Transportation. The court concluded claimant's case may be distinguishable, but found under its limited standard of review sufficient competent evidence to support the denial even if claimant had offered some evidence to contradict the factual finding. Claimant failed to explain why she believed there was not competent evidence to support the decision. The case is Ruth Bailey v Phelps County Regional Medical Center, decided 12-21-10 No. SD 30794 (Mo. App. 2010).

Atty: Logan, Beekley, McChesney
Judge: Rahmeyer

Bacterial and viral infections

2011-06-09T10:27:00.000-07:00

Infection causing amputation

Claimant worked 15 years as a truck driver and in 2008 he fractured his left ankle stepping out of a forklift, he developed an infection from a complex fracture, and ultimately surgically lost his left leg below the knee. Claimant could drive at times with a prosthetic and the surgeon prohibited commercial driving. The claimant, at age 59, never returned to work. Starks v Conway Central Express, 2011 MO WCLR LEXIS 220 (Nov. 8, 2011).

The ALJ awarded total loss of the foot at the ankle and total disability against the fund. Claimant's expert had rated a prior 65% loss of the foot due to prior amputations and had assessed claimant with more than 100% pre-existing disability. Claimant had a previous total knee to the same leg a few years before the accident and had chronic neuropathy in the leg. The ALJ rejected claimant's assertion that he was entitled to additional disability to the back because of altered gait. The ALJ awarded total benefits against the second injury fund, although claimant admitted he had completed training for a part-time volunteer position as a court appointed advocate.

The ALJ noted the statute prohibited an award for disfigurement to the leg, even though claimant sustained a "ghastly" injury.

The employer disputed causation because claimant resumed his job as a driver returning from Indianapolis to St. Louis and did not pursue treatment until the next day, which the ALJ explained did not diminish claimant's credibility because pre-existing neuropathy might diminish any acute symptoms. Although the defense argued the entire episode was "difficult to believe" at the time of the hearing the employer had pre-paid 77% of the permanency and provided nearly $300,000 and lost time benefits.

ALJ Boresi
Atty Horgan, Highlander
Treaters: Krause, Maclin
Experts: Volarich, Abram, Lalk

Bacterial infection alleged from cheese plant
In Diener v Schrieber Foods, DOLIR 5-25-11, the Commission 2-1 affirmed a denial of benefits for infectious disease that caused diarrhea from alleged exposure to bacteria at a cheese plant.

Claimant worked in a cheese factory for about 7 years and developed Crohn's disease. She alleges she developed a very rare bacterial infection (Hafnia), but failed to prove her condition flowed from her employment. Her job required her periodically to quality taste cheese product. The plant had been shut-down for a bacterial infection (Listeria). Claimant's vocational expert asserted she was unemployable because of her frequent need to use the bathroom.

The plant produced multiple experts to show safety policies, that it required uniforms, had regular safety inspections, and processed pasteurized instead of raw cheese. A dissenting commissioner would have awarded benefits because Hafnia was not tested by the employer in its safety inspections. Claimant's expert testified he had never encountered any previous case of Hafnia nor could he identify any research linking Hafnia to cheese processing facilities.

ALJ Holden
Atty: Walsh
Experts: Weinstock, Burmeister, Swearingin, England

Employer/employee status

2011-06-03T14:29:00.001-07:00

Immigration Status
Claimant is a Bosnian immigrant who testified he was incapable of working, in part, because of his lack of English proficiency. The ALJ found the assertions overstated and exaggerated, noting claimant's capacity to master several other languages. Claimant was able to testify under oath without a translator and participate in medical evaluations. Claimant was understandable, despite a "thick" accent. The ALJ found claimant's allegations of PTSD not persuasive due to lack of treating records, and the condition did not reach threshold levels for Fund recovery. The Commission criticized the ALJ in a separate opinion for misapplying nonexistent legal principles.
Anic v Bussen Realty, DOLIR 5-31-11.

ALJ Tackes
Atty: Merlin
Experts: Stillings, Dolan, England, Berkin,

Juror
The Commission in a case of first impression decision concluded a prospective juror who fell on a parking lot before reporting to jury duty was an employee entitled to benefits under the Act. Claimant worked as an insurance agent but fell while reporting to jury duty. ALJ Wilson concluded claimant did not have any contract of employment but was acting under "appointment" to discharge city services, he was in a position of trust, and the city potentially exercised control over his activities. Claimant was sent home and never served when he reported the morning that he fell, and never received pay for reporting as a juror. ALJ Wilson in the temporary award deferred any decision to allow parties to brief the impact of the Pile decision whether a fall in a parking lot was compensable or not. Roemisch v Green County, DOLIR 4-14-11.
ALJ Wilson Atty Mills, Vessell

Mail Carrier
A letter carrier failed in a pro se claim against the Second Injury Fund alleging permanent total benefits from post traumatic stress disorder, but failed to show he was an employee covered under the Act as he was a federal employee and 287.110 excluded coverage except for cases covered by "federal law." Claimant refused to identify at hearing the isues in dispute, and relied entirely upon a meandering affidavit he prepared explaining why he felt he was disabled and unfairly treated. Hughes v United States Postal Service, DOLIR 12-7-10.

ALJ Carlisle
Atty: pro se, Schulte

Professional Athlete

Claimant is a professional athlete who sustained back and hip injuries in a scrimmage and was awarded $30,767 in disability benefits with open medical related to the 2002 accident. The Commission modified the award and found the employer was entitled to a credit for $105,667 in medical benefits paid pursuant to 287.270 and should be applied against future medical. The case is McClellon v Kansas City Chiefs, DOLIR 3-29-11. The employer had paid over $200,000 in benefits for medical and lost wages. Claimant underwent two surgeries and stated he sustained a career-ending injury.
ALJ Meiners
Atty Round
Treater: Phillipon

Independent contractor

A pro se claimant failed to prove he was an employee under the act to qualify for benefits against the second injury fund. Claimant signed a document indicating he was an independent contractor, exercised control how he performed the work, and provided his own equipment. The "employer" had settled the case. Thompson v Corporate Transit of America, 2011 MOWCLR LEXIS 221 (Nov. 8, 2011).
Claimant worked for the employer for 6-8 years driving a truck and then entered an agreement to purchase the truck, pay his own expenses, receive a higher pay rate and reclassify himself as an independent contractor. The employer asserted that this agreement under claimant’s "own free will" precluded benefits for permanent and total disability following an 2003 injury when a keg fell on him. The case is Timothy Rader v Werner Enterprises, DOLIR 10-29-10. affirmed 2012 Mo. App. Lexis 24 ED 95905 (Jan. 10, 2012)

Whether a claimant is an employee depends whether an employer has the right to control the means and manner of service. An employment contract is only one of eight factors to consider, and classification in a contract as an independent contractor is not conclusive. The Commission examined the parties actual practices and concluded that Werner continued to control claimant’s activities after the agreement.

The Commission further rejected the defense under 287.020.1 that claimant was not an employee because he was an "owner operator", noting the employer did not establish ownership of the truck because of inconclusive evidence of an attempted conveyance. Werner’s counsel testified that a certificate of title proved ownership. Portions of the title transfer remained incomplete such as missing a date or signature of the claimant. The agreement further limited claimant’s capacity to use or convey the trailer.

The employer first asserted the "independent contractor" defense in September 2009, 6 years after the accident, after the employer paid $334,758 in medical and lost time benefits. The employer had previously conceded employee status for years in various "signings."
ALJ Lane
Atty: Thurmer, Evans, Barnard
Experts: Volarich, England
Treaters: Esses, Lloyd, Hackbarth

Court ends "gotcha" moments

2011-06-03T11:05:00.000-07:00

A picture may be worth a thousand words, especially when a video shows a claimant demonstrating a lack of candor about disability.

Those "gotcha" moments may now be a thing of the past. The court of appeals now finds the carrier must turn over videos when requested by subpoena pursuant to 287.560. The Act specifically bars the release of videos as "statements" pursuant to 287.215 and finds videos are not "statements," as part of legislative reform in 2005. The court of appeals concludes that the legislature could not possibly have meant to bar the production of videos, and meant to limit the discovery of videos only in response to the informal statement demand requests based on 287.215. The court rejected that the more specific directives of 287.215 should control over the general rights of discovery described in 287.560.

Claimant alleged he tripped over carpet in 2008. The court found no abuse of discretion by the circuit court to order the release of any video. BSF has appealed the permanent order of mandamus compelling ALJ Fowler not to quash the original subpoena. Feltz v Bob Sight Ford Inc. WD 72969 (Mo. App. May 31, 2011).

http://www.courts.mo.gov/file.jsp?id=46868

atty: Shoeppey, Kenter

Settlements, terms, and res judicata

2011-05-04T11:35:00.000-07:00

The Second District rejects summary judgment for the employer in a fight whether a 2002 comp settlement to keep medical open for 1 year to the back included $190,000 in subsequent medical bills for a staph infection at the heart. The case is Gassner v Raynor Manufacturing Co., 8-L-35, decided April 27, 2011.

The case has important lessons for anyone drafting settlement language addressing the scope of future medical care. The claimant treated for a back fusion and developed a staph infection and settled the primary case with the provision to keep medical open for 1 year "for treatment to the low back." The employer paid $24,000 in medical after the settlement, but disputed the provision required payment of an additional $190,000.
The court concluded summary judgment was improper under a four corners analysis because the phrase "to the low back" was ambiguous and required parol evidence for its interpretation. The release left disputed facts regarding the intent of the parties and if the staph infection for the heart after 2002 was the same infection related to the earlier back surgery. The court notes that the release did not indicate "treatment" for the back was limited to orthopedic care and "should have so stated" if the employer, who knew about a prior staph infection, wanted to exclude care for staph.

Claimant filed for petition to the trial court in 2008, about 6 years after the original settlement. The case lingered for about 4 years after it was originally appealed to the commission for review under 19(h), when the Commission concluded it lacked jurisdiction. The court concluded that the appeal was timely under a 10 year statute of limitations for contract cases.

http://www.state.il.us/court/opinions/AppellateCourt/2011/2ndDistrict/April/2100180.pdf

In Shepard v Yellow Transportation, DOLIR 2-9-11, the Commission reversed a SIF award for disability, noting the ALJ's finding of 14% disability for a prior concussion was not supported by the evidence, and modified the award of to 5% based on Dr. Volarich's rating, noting the absence of any records to support any diagnosis of concussion. The Commission decision contains a long discussion that a settlement amount is not controlling whether or not the claimant can pursue a second injury fund claim and the Commission is not bound by such stipulations. The Commission concluded that pre-reform cases required an administrative law judge to approve only cases "in accordance to the law" and allowed an inference that an administrative law judge reviewed the amount of the settlement, consistent with Conley. The commission found the post-reform changes to 287.390 no longer allowed this assumption because the standard for approving contracts changed.
ALJ Lane
Atty: Martin, Frazier
Experts: Volarich, England

The commission reversed a denial of benefits against the second injury fund, and found claimant to be permanently and totally disabled because he hurt himself again getting up from a couch from home after a back surgery. The case is Edwards v Honeywell, DOLIR 1-13-11. The Commission rejected the Fund's defense that claimant had no pre-existing disability because he was performing extremely heavy work leading up to his primary accident when he hurt his back rolling paper. His expert had rated disability to the neck and elbow, including a childhood arm injury. The focus is how disability may combine in the future. The Commission disregards a settlement of 15-16% of the back on the primary case, and disregards comments in the settlement agreement apparently addressing causation of the second accident at home (the award is not published). The Commission finds claimant 40% disabled on the primary case and awards benefits from the Fund for permanent and total disability. Claimant's expert found claimant hurt himself again at home as a consequence of the original accident, and after the second accident he was told he might require more surgery. The administrative law judge agreed that claimant was totally disabled, but found the cause not compensable because claimant hurt himself at home ten months after claimant's back surgery getting up from a couch. In addition, the administrative law judge relied upon a comment in the original settlement agreement apparently addressing causation. The Commission found the couch accident flowed from the original accident, based on unrefuted testimony from claimant's expert. The Commission considered a 'stray' comment in a settlement document not as important as the opinion of claimant's expert (unrefuted as the fund offered no experts whatsoever).

ALJ Siedlik
Atty: Kenter
Experts Cordray, Stuckmeyer

Pending MSA issues render settlement incomplete

The Commission originally affirmed an award of permanent partial disability arising from a 2002 accident with the city of St. Louis, and when the case was remanded the Commission flip-flopped and found the city liable for total disability. The court of appeals rejected the city's argument that the Commission lacked authority to change its original findings on the same set of facts, but the court found the claimant properly preserved the issue of PTD in its appeal and the mandate reversed all of the original findings of permanent partial.

The case has an intriguing procedural history as the claimant originally appealed the case to set aside an ALJ finding of disability of about $56,000, in order to enforce an oral settlement prior to the award of $200,000. The employer successfully appealed the revised $200,000 award on the findings that the parties did not have a meeting of the minds regarding specific terms of the settlement (MSA issue remained pending), only to have the Commission then change the award again from $200,000 to perm total, with back weekly benefits of $566 since 2004, with likely exposure far in excess of $200,000. The case is Roberts v City of St. Louis, ED 92438, filed September 1, 2009.

Pending social security provisions renders settlement unenforceable
Claimant, 63, accepted a $15,000 offer to settle a second injury fund claim alleging permanent and total disablity, but the court refused to enforce the agreement, citing section 287.390.1. Claimant claimed various pre-existing injuries including Charcot's, which he states combined with with his primary injury to the back, that he settled with the employer for 15%.The court of appeals, affirming the Commission, found the agreement was not complete since it was still dependent on preparing social security offset language and the second injury fund failed to show that claimant fully understood his rights. Claimant was represented by counsel on the day of the settlement hearing but refused to sign the documents the next day. The court noted that claimant was never asked if he understood his rights and the consequences of entering into a settlement agreement; nor did Mr. Vincent proffer any statement or affirm he understood his rights and the consequences of entering into a settlement agreement. Similarly, Mr. Vincent did not acknowledge or affirm that he was entering into the settlement agreement without any undue influence. Claimant did not "fully understand his rights", even though claimant's counsel recites as part of the settlement hearing transcript that he spent an hour discussing settlement options before claimant accepted the $15,000. The record suggests claimant had been represented by at least 3 different attorneys following the 2000 accident and states he was told once the case was worth $240,000. The decision reaches an absurd result that a represented party apparently upset with his attorney's advice cannot be assumed to understand the language in the state prepared settlement form and now needs to have it read aloud in court as part of a settlement process.The case is Vincent v Missouri State Treasurer as Custodian of the Second Injury Fund, No. SD 29500 (Mo. App. 2009), filed July 8.

Commission lowers award to rating from claimant's expert

2011-04-15T10:53:00.000-07:00

Claimant went back to work without restrictions after surgery removed some metal from a sledge hammer lodged in the back of his leg. Claimant reported he still had some soreness and numbness in his leg, and also developed back complaints. The administrative law judge disregarded the disability ratings, and awarded 30%. The Commission, however, modified the award to the 20% rating furnished by claimant's expert. Wood v Doe Run, DOLIR 4-12-11. ALJ Strange Atty: Seufert, Lory Experts: Volarich, Krause

Seizures

2011-03-17T14:38:00.000-07:00

Claimant failed to prove striking her head when she fell produced disabling seizures three years later that rendered her "unable to do anything." The claimant treated with anti-convulsives and MRI findings confirmed a brain contusion, but EEG studies were unable to objectively document seizure activity. Claimant introduced testimony of family members. The ALJ noted claimant's sharp memory capacity to recall specific medical bills. One expert felt the symptoms might be explained as panic attacks. The ALJ awarded PPD for other conditions. Payne v Colonial Baking, 2011 MOWCLR 219 (Nov. 11, 2011)

ALJ Mahon
Atty: Cummings, Platter, Colburn
Medical: Slater, Mauldin, Hackett, Bennoch

A former deputy sheriff who was struck in the head with a golf ball could not recover benefits, when the accident occurred during a charity event on a day off work when his employer did not control or schedule the event. Claimant alleged since the accident he sustained multiple disablements including dizziness, personality change, loss to vision and hearing, seizures and depression. The Commission affirmed 2-1, finding the accident arose from a recreational event and that the fund raising event itself was not a mutual beneift. The ALJ found claimant had equal exposure to being struck by a stray golf ball compared to the general population. The claimant established some of the proceeds funded a Shop-with-a-Deputy program to benefit the community. Beine v County of St. Charles, DOLIR 3-17-11, affirmed ED 96581 (Mo. App. 12-6-2011).

ALJ Ottenad
Atty: Weigley, Temple
Experts: Musich, Novak (criminologist)

Schoemehl cases

2011-03-08T09:47:00.000-08:00

More surviving spouses can now recover benefits for life under a recent Missouri court of appeals case. In Gervich v Condaire, ED 94726 (Mo. App. 2011), decided 3-8-11, the court of appeals found a surviving spouse could recover life-time benefits even if a PTD claimant died after the legislature in 2008 abrogated Schoemehl v Treasurer of MO, 217 S.W.3d 900 (Mo banc 2007). The legislative fix was not retroactive and applied to accidents arising after the bill became effective. Schoemehl allowed life-time benefits to a surviving spouse when a PTD claimant died from unrelated causes. The Commission denied life-time survivor benefits in Gervich because the spousal interest might divest before the legislative fix since the spouse could have died or re-married. The Court of Appeals found this proposition not supported by any case law. Schoemehl found that a spouse is deemed to have the same rights as the deceased claimant to life-time benefits. The court noted that both spouses shared a property interest in the compensation as a result of marriage. The pivotal issue was whether the spouse was a dependent at the time of the accident and if the claim was “pending” at the time of the January 2007 Schoemehl decision.

In Gervich, claimant’s case was pending before the Division at the time the Supreme Court decided Schoemehl in January 2007, and claimant did not have a hearing until 2009, about 10 months after the June 2008 legislative fix. Claimant died shortly before the hearing. The Second Injury Fund was found liable for permanent and total disability benefits. The court of appeals found no merit to the Second Injury Fund’s new argument that Schoemehl benefits applied only to cases pending “on appeal” after January 2007, an argument not supported by citation or authority. The Fund argued no vested interest existed but provided no citation or any authority to support the theory advanced by the Commission. The court rejected the divestment argument, and found in a case a few months earlier that an interest had vested both to a claimant (then living) and a spouse in Tilley v USF Holland, 325 S.W.3d 487 (Mo. App. ED 2010).

A recent court of appeals case affirming a PTD award addressed two issues regarding the impact of an application for unemployment benefits and when a surviving dependent spouse in a case before 2008 might be able to continue to receive benefits even after a claimant dies.

Claimant underwent two back surgeries after a lifting accident and was awarded permanent total benefits with open medical because of continued back and left leg symptoms affecting his capacity to stand, sit, squat or perform simple tasks. Tilley v USF Holland Corp., ED 94431, (Mo. App. 9-21-10), affirmed the PTD award.

Claimant’s application for unemployment benefits did not bar an award of temporary total disability benefits. Claimant applied for unemployment benefits after his first single level discectomy and remained out of work leading up to his multi-level fusion for a “failed back” surgery 17 months later. An application for unemployment benefits was not an admission regarding capacity to work, but reflected only a willingness to work. Section 287.170.3, amended after this case, disqualifies a claimant from temporary total benefits only when claimant applies for and receives unemployment compensation.

The employer disputed TTD benefits and asserted that claimant had never been told he could not work. The Commission based its conclusion on claimant’s testimony about his debilitating symptoms and opinions from claimant’s rating and vocational expert that he was unemployable. The employer offered no medical evidence regarding claimant’s capacity to work, but offered a vocational opinion that claimant could perform sedentary work and asserts claimant may have been offered a computer/internet job from his home

The court addressed when an accident before 2008 may be considered "pending" to allow additional lifetime benefits for a surviving dependent, but did not address an ambiguity in the cases whether a claimant must die before 2008 to vest any interest of the dependent. Schoemehl v Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo. 2007) allowed a PTD claimant's dependent spouse to receive benefits for the dependent's lifetime when claimant died. The legislature in 2008 abrogated the 2007 holding in Schoemehl which allowed beneifts if the case was "pending" before the legislative fix.

In Tilley, claimant’s wife had been added as a party during the gap between the Schoemehl decision and the legislative fix. Tilley concludes the case was "pending" and a dependent may be entitled to benefits as long as long as the case was not pending, even if it was not on appeal prior to the 2008 fix.

The court, however, declined to address whether claimant must be deceased before the legislative change. In Schoemehl the court defined "dependent" under 287.240.4 to mean dependent of a deceased employee. The Commission in several cases has suggested no interested vested to a surviving dependent unless claimant died before the fix. See: Kammeier v AR Fleming Printing, DOLIR 4-1-09. Gervich v Condaire, DOLIR 4-7-10, and Goad v Blue Cross Blue Shield, DOLIR 7-22-10. The court in Tilley noted the issue was raised belatedly and not properly preserved.

Treater: Cheung, Park
Experts: Cohen, Shea, England

Like a bad sequel, the legacy of Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. banc 2007), as well as the statutes enacted after that decision "to undo the effect of the Schoemehl decision." Roller v. Treasurer of Missouri, 297 S.W.3d 128, 132 (Mo. App. W.D. 2009), continue to surface.

In Goad, dec. v Treasurer of the State of Mo. , WD 72820 (Mo. App. 11-22-2011) the claimant's spouse could recover survivor benefits when the claimant's death occurred after the legislative fix, reversing the opinion of the commission which concluded the benefits had not "vested." Claimant's underlying injury did not occur until after the January 2007 Schoemehl decision but remained "pending" at the time of the June 2008 fix. The court identified no legislative intent to support retrospective application and such an intent may raise additional constitutional issues and the legislature cannot reduce the extent of damages after a cause of action has accrued. The SIF offered no evidence that it was prejudiced by an amendment to perfect the pleading from PPD to PTD.

A similar issue is pending before the Supreme Court in Gervich v Condaire, Inc., No. SC 91727

The Commission in Gervich addressed the issue when a dependent surviving spouse can step in the shoes of a deceased spouse to continue to receive permanent total benefits. In a 2-1 opinion, the Commission concluded that when the claimant died from unrelated causes in 2009, the surviving spouse could not recover benefits because there was no vested interest pending at the time of 2008 legislative fix. Any interest in 2008 was not "pending" and subject to divestment. A dissenting commissioner asserted any claim was "pending" because the case was filed prior to the 2008 fix, The case is Gervich v Condaire, DOLIR 4-7-10.

In White v UMKC, DOLIR 5-26-11, the Commission concluded that Shoemehl benefits applied even if the amendment from a permanent partial to permanent total occurred after the 2008 fix. In the case claimant underwent a 2 level fusion and sustained 40% disability after tilting his neck in awkward posture for several hours.

ALJ Miener
Atty: Yarwod, Fowler

The statute defines dependency as a dependent on a "deceased employee," but the Commission found the administrative law judge erred refusing to allow a spouse to be added as a party to a case as a dependent even though claimant was not deceased. The issue whether or not someone could be a dependent before or after a claimant's death has appeared with conflicting results in several previous commission cases. Woolery v Sedalia, DOLIR 2-9-10, however, affirmed a denial of benefits that claimant failed to prove working at a newspaper aggravated a prior Madelung's deformity, noting superior experience of the employer's experts who actually treated Madelung's deformity, compared to plaintiff's expert Volarich who stated he had merely read an article about the condition.

The court of appeals in Tina Roller v Sarah Steelman, Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, WD 69720 (Mo. App. 11-10-09), concludes a surviving spouse lacks standing to modify a PTD award to add herself as a party pursuant to 287.500, and reverses a circuit court award of summary judgment.

Schoemehl awarded benefits to survivors as "employees" in certain circumstances when a claimant is found permanently and totally disabled and dies from unrelated causes. The legislature "fixed" the statutory inconsistencies supporting the Schoemehl decision, and the court of appeals previously concluded an application of the decision applied only to PTD benefits pending between the award of January 9, 2007 and the statutory fix on January 26, 2008.

In Roller, claimant's award of PTD was not pending during this window, and was a final award prior to the Schoemehl decision. The court of appeals concluded the circuit court erroneously concluded that the surviving spouse had standing to enforce the award. Claimant received PTD benefits for about 5 years for carpal tunnel disease and a herniated disc, and died from multiple melanoma. The widow won summary judgment in circuit court in May 2008 that she was qualified as an "employee" under the Act and entitled to benefits. The court of appeals reversed, finding the circuit court lacked statutory authority to modify the final award and could not add the survivor as a dependent, when the original award did not establish dependency or provide any award to survivors. Claimant was not a party in interest to prosecute enforcement of the award as required by 287.500, and her motion in circuit court to enforce payment of benefits under section 287.500 relied upon her status as a dependent/employee.

Substantial factor: aggravating prior condition

2011-02-22T14:50:00.001-08:00

The Commission affirmed an award of 30% PPD for a lumbar fusion, without a separate opinion. The employer lost a hardship hearing demanding medical care, and offered new testimony from Dr. Cantrell after a L5-s1 fusion disputing whether claimant's accident was a substantial factor in his condition. The original hardship found the employer liable in the 2002 accident for aggravating a previous asymptomatic degenerative condition. In the final hearing, a different ALJ found the employer had the burden to show "additional significant evidence" to disturb the earlier findings on causation, and the new opinon disputed substantial factor but providing a rating. Kinnikin v Triad Development, DOLIR 2-4-11.

ALJ Gorman
Atty: Bollwert, Hendershot, Waganer
Experts: Cantrell, Volarich, Coyle, Cantrell, England
Treater: Kennedy

Maximum medical improvement

2011-02-22T14:39:00.000-08:00

The Commission modified a finding of MMI to determine when SIF benefits begin for PTD, noting the correct calculation is the amount the ALJ found caused by the primary injury and not the dollar week equivalent of the amount the employer settled before the award. In this case, the employer settled against the claimant in Kansas for $60,000 (about 176 weeks under MO rates) and the parties stipulated any SIF benefits would not begin until after 176 weeks. The parties stipulated to the settlement amount in KS, but did not stipulate to the PPD amount in MO. The ALJ awarded awarded of 30% PPD (120 weeks) for a back injury with psychiatric injuries. The Commission found this amount controlled, causing the Fund benefits to begin more than a year sooner. . Mayse v Jeff Honor Roofing, DOLIR 1-28-11. The commission is not bound by stipulations of the parties regarding employment status, and has disturbed employment contracts that indicate independent contractor status. Rader v Werner Enterprises, DOLIR 10-29-10. The commission, similarly, can independently review stipulations for purposes of jurisdiction such as place of employment. Roberts v Leggett & Platt, DOLIR 3-25-09. In Poole v City of St. Louis, ED 94052 (Mo. App. 10-15-10) the commission acknowledged it would not disturb a stipulation concerning what body parts were allegedly injured. In this case, the Commission, unlike the ALJ, ignored the stipulation of the parties when SIF liability would begin. The inconsistently arises because the parties did not agree to the amount of disability from the prior injury, and had only agreed to the start date for fund benefits.

alj Magruder

The Commission found that the ALJ erred finding MMI in 1998 for purposes of SIF liability, when claimant had three subsequent back surgeries that improved her function. Her surgeon placed her at MMI 7 years later in 2005. Key v Aldi, DOLIR 2-10-11.
ALJ Kohner

Personal Comfort doctrine survives "reform"

2011-02-22T13:34:00.000-08:00

The Commission recently reversed a denial of benefits, and found a billing clerk who twisted her ankle while making coffee at work can recover compensation benefits under the personal comfort doctrine. The case is Sandy Johme v St. John's Mercy Medical Center, decided on 2-22-11. The Commission found making coffee was an activity incidental to her employment. She twisted her ankle, fell off her shoe, fell backwards, and broke her pelvis.

The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.

The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.

Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.

http://www.labor.mo.gov/LIRC/Forms/WC_Decisions/WCDEC11/JohmeS.pdf

287.560 penalties

2011-02-18T13:38:00.000-08:00

A paraplegic 69-year old with a neurogenic bladder and need for daily nursing services was unable to compete in the open labor market, according to a decision affirmed by the Commission in Hoff v St. Clair R-8 School District, DOLIR 2-14-11. The administrative law judge found the employer's defense a "tenuous thread" to try to blame the second injury fund for liability based on a prior seizure disorder. The award denied penalties for late payment for benefits which were eventually paid after a 22 month delay by the employer , but the ALJ awarded the full cost of over 250,00 in medical bills, finding the employer failed to show adjusted and written off charges extinguished liability for the claimant. In addition, the employer failed to show what credit might be owed for over-paying interest on nursing services at 10% instead of 9%. One commissioner would have awarded sanctions against the employer for waiting right before the hearing to concede PTD liability and for delays that added to claimant's "torment" and for wasting court resources to contest a difference of $339 in an award for van modifications. The employer had previously lost a temporary award, and lost an appeal to the court of appeals on the 11-year old case.

ALJ Dinwiddie
Atty: Tierney, McMichael
Experts: England, Bernstein, Katz

The commission reversed an award by ALJ Siedlik for sanctions under 287.560 against the second injury fund for unreasonable defense when the Fund offered no evidence on its own, made no settlement offer, and relied solely upon cross-examination. The Fund refused to stipulate to the admission of a medical expert report which found claimant's primary knee combined with a prior knee injury. The commission commented the defense was not egregious to warrant sanctions. Bridges v Home Depot, DOLIR 3-7-11.

The commission reversed an award by ALJ Hart for sanctions under 287.560 against the second injury fund for unreasonable defense when the Fund offered no evidence on its own, made no settlement offer, and failed to attend a medical deposition of claimant's expert. The Fund "required" a medical deposition to show synergy between a primary back case (settled at 22%) and a prior back fusion, but failed to attend the exam. The Commission reversed the award of sanctions, and noted their was no additional evidence showing that the SIF's failure to attend the deposition was intentional or the result of bad faith.
Lingle v Ryder Integrated Logistics, DOLIR 3-7-11.

Atty: Finneran, Fox
ALJ Hart

A claimant loses her claim of mental injuries due to lack of evidence of causation. Claimant worked 12 days at a job at a parking booth and stated she was poked with needles and sharp objects. Medical records restrict her work the following year for 4 months due to her depression, paranoia, agoraphobia, and delusions that she was a lawyer. She pursued similar allegations of "poking" against a subsequent employer in Colorado, as well. The case is a recent Commission decision, Joy Stewart v the Parking Spot, DOLIR 2-11-09.

The case is a clear example that claimants may still get their day in court in worker's compensation, even though such claims may lack prima facie evidence and may not proceed in a system that allowed summary judgment. The employer filed a motion for costs that claimant prosecuted the claim without reasonable ground. Judge Kohner denied the employer's motion for costs noting the employer conducted no discovery, and offered no evidence regarding expenses.

Sanctions dropped for accident defense

Claimant could have bent over away from the job and hurt his back just as easily, but ALJ Wenman rejected the employer's defense that claimant failed to prove his work duties bending over in May 2008 were not a compenable event and found that claimant proved something more than an equal exposure away from the job because his duties were "required' and "routine." ALJ Wenman awarded $65,169 in unpaid medical benefits, TTD, and attorney's fees.
Claimant was diagnosed with a disc herniation and underwent a disputed L4-L5 discectomy by Dr. Scodary, a second procedure for a disc fragment, and was told he might need a discogram and fusion because of persistent symptoms and continued findings of a protrusion. The employer's expert indicated that claimant could have incurred a similar injury bending over away from the job, but related claimant's symptoms to his accident based on the history. The ALJ notes the accident was witnessed.
The commission 2-1 affirmed the temporary award but reversed an award of attorney's fees and costs noting the employer's defense based on a new statutory definition of accident was not egregious to warrant fees. The 2005 amendments had changed the definition of "injury" but retained the "hazard or risk unrelated to employment" language. A dissenting commissioner felt the employer ignored the causation opinion of its own expert warranting sanctions. The case is Hatton v Johnson Controls, Inc., DOLIR 5-11-10.

Attorneys: Koester, Bates
Experts: Nester, Mirkin
Treater: Scodary
ALJ: Wenman
Subsequent accident defense
A defense that claimant had a subsequent injury to her back after lifting luggage was not unreasonable to warrant fees, but failed to break causation that claimant's need for surgery flowed from her original accident when she fell from a table. An MRI initially did not identify a herniation. The Commission awarded 22 1/2% PPD following a back surgery, and awarded future medical as the doctors suggested a fusion as possible future treatment. ALJ Fowler rejected the request for attorney's fees for unreasonable defense, noting the employer relied upon a history that claimant had a "set-back" lifting luggage before her back surgery. The luggage lifting incident may have been a work-related accident as well. Morgan v School District of Kansas City, DOLIR 1-22-10.

Willful neglect from ignoring claim

A claimant alleges he injured his back pushing a 100 pound container resulting in a herniated disk. He consulted Dr. Shitut and advised he was a surgical candidate and proceeded with a temporary award. ALJ Hart awarded benefits, affirmed recently by the Commission.

The court noted the employer engaged in willful neglect and had not responded to various contacts by claimant's counsel Dalton. The court noted neglect referring the matter to defense counsel Moser, Marselek, who appeared over objection on the day of the hearing. Judge Hart awarded approximately $51,000 in back benefits, ordered future medical care and the right for claimant to chose his own doctor, ordered "maximum" compensation rate because "maximum" had been pled because the answer was in default, and referred the matter to the fraud unit. Claimant testified the employer did nothing while the case remained pending for a year after the claim was filed and wanted claimant to change the date of the reported accident, and then denied the claim due to late notice. The case is Kirk Wilson v Allied, DOLIR 6-2-09.

Employer ignoring prior award

A 41-year old claimant alleges a back injury arising from a 2003 accident, undergoes a two level back fusion by Dr. Graven in 2005, and claims he requires narcotics daily because of pain levels and can never work again. The claimant won a temporary award for benefits in 2005, and pursued treatment through group insurance when the employer failed to comply with the award. In a final 3 day hearing in September 2008, Judge Wenman found claimant permanently and totally disabled and entitled to future medical care, and noted claimant was unemployable in the open labor market due to daily reliance on narcotics. Medical evidence suggested a pseudoarthrosis. The court rejected a causation defense and found Dr. Curylo unpersuasive that the accident did not cause the disc herniation due to a delayed presentation of sciatica for 3-4 day until claimant drove on a fishing trip. The employer's denial was deemed untimely due to a late answer, and its notice defense failed due to lack of evidence of prejudice even though claimant may have waited several months to identify a work cause of his back pain. The employer had delayed several years in obtaining an IME but had filed two unsuccessful appeals to the Commission and court of appeals, both dismissed for lack of jurisdiction, and sought a declaratory judgment to challenge the constitutionality of 8 csr 20-3.040.The award exceeds over 457,000 for accrued benefits, plus PTD and open medical, that included sanctions of 229,000 in penalties for not complying with the original hardship award.1 Ellen Morgan represented the claimant and Moser, Marselek represented the employer. The case is Petelik v Motor Control Specialists, DOLIR 6-2-09.

In the recent case Tina Balls-Sawyers v Blue Springs School District, No. 69624 (Mo. App. WD May 5, 2009), the court retroactively applied the penalty provision, substantially reducing the statutory penalty of $236,000 to $176,000 because some of the charges had been paid prior to the hearing.

Refusing to make offer
The court of appeals sanctioned an employer for costs and attorneys fees under 287.560 for refusing to make a settlement offer on an admitted case contrary to its own expert who assesses permanent disability. The case is Clark v Harts Auto Repair, No. 69767 (Mo. App. WD 1-20-09).1The court of appeals affirmed an award of sanctions that includes partial costs of three depositions, attorney's fees and medical records.Claimant was awarded permanent and total disability after he fell from a ladder and injured his leg, underwent 9 surgeries, and later developed bilateral leg symptoms, back symptoms, RSD, and depression. The employer vigorously defended the case that claimant could do some work and that claimant exaggerated his symptoms. The employer's own expert neurologist assessed 54% BAW representing nearly $68,000, but the employer tendered no offer and the carrier declined to discuss settlement prior to the hearing. The court found the refusal to make any offers unreasonable based on the opinions of its own experts.The court of appeals affirmed the decision, noting it would not disturb the credibility findings among experts with conflicting opinions. The employer abandoned its bizarre first amendment argument that it asserted at the Commission.The lesson from the case is that an employer in an otherwise undisputed nature and extent case should pick its experts wisely, and should tender an offer before hearing after receiving its disability rating or risk sanctions for unreasonable defense. The employee counsel who insists that a claimant must have his day in court may face similar sanctions. But see Brennell v Patients First, DOLIR 8-13-09, denying a motion for sanctions and costs in a bilateral carpal tunnel case in which the employer paid medical and TTD benefits but made no settlement offers.

Sanctions reversed against employer
Claimant Nolan tested positive for meth and marijuana following a pick-up accident where he lost control for unknown reasons, which caused severe injuries. Claimant became paralyzed and died three months after the accident. The employer denied all benefits and the judge imposed sanctions of over $10,000 in attorneys fees against Degussa Admixtures for withholding benefits.On appeal the Commission vacated the sanction of attorneys fees, and imposed 15% penalty on all benefits, including medical bills. On first appeal, the court remanded the case to the Commission to brief the issue of costs under §287.560, as the Commission did not provide due process to the claimant before vacating the award of sanctions. The Commission on second round found the defense reasonable to assert based on the positive drug tests. Claimant appealed again, and the court found the court affirmed the decision to vacate sanctions against the employer, rejected the disparate points of error did not establish the Commission's decision was clearly against the logic of the circumstances and so unreasonable and arbitrary to shock one’s sense of justice. The decision is Nolan v Degussa Admixtures, Inc., No. 29282 (Mo. App SD 1-14-09)Although it is not clear from this recent court of appeals decision, the Commission case reports the employer had denied 100% of benefits instead of invoking the 15% penalty, and a dissenting commissioner criticized the employer and argued it failed to offer sufficient evidence that the "use of" any drugs "caused" the accident.

PTD Cases (denied)

2011-02-16T14:44:00.000-08:00

"Working" total
Claimant could not recovery second injury fund benefits from a synergistic effect from his primary injury and pre-existing conditions because he was already totally disabled before he was hired. Claimant collected social security disability for debilitating back pain for about 7 years before he worked briefly for about 4weeks at Buckley Powder Co. He states he was not candid about his back condition or his use of daily narcotics because if he admitted he was all "boogered up" he would not be hired to handle explosive materials. The Commission found that claimant's capacity to obtain a job did not show he was capable of competing for employment in the open labor market because of his lack of candor. The employer settled for 22 1/2% prior to the hearing. The case is Cook v Buckley Powder Co., DOLIR 3-17-11.

ALJ Siedlik.
Experts: Koprivica, Drieling

Claimant is a 50 year old without a GED who claims significant limitations to his back and arms, but failed to prove he was permanently and totally disabled when his own experts did not support the PTD claim. The administrative law judge noted simply because claimant lived in Warsaw and may have limited job opportunities in that location did not make him unemployable. The claimant proceeded against the second injury fund alone, after claimant settled his 2004 case involving both arms with the employer. He received an award of nearly $11,000 from the second injury fund, on the finding that his primary injury caused a 50% of the body disability based on an uncontested rating from claimant's expert. Andrews v Murphy Tractor, DOLIR 2-9-11.

ALJ McKeon
Atty: Effertz, Van Fleet
Experts: Koprivica, Dreiling

Claimant fails to prove PTD against Fund due to post-accident worsening. Claimant established he had pre-existing disability of over 81% BAW, and his expert testified his prior PTSD rendered him unable to work even without consideration of his primary carpal tunnel case. Claimant worked several years after his carpal tunnel surgery but ended a 20 year career at General Motors after a flashback episode from an experience as a paramedic in 1997 when he was unable to save a young child. Freeman v General Motors, DOLIR 8-3-11.

ALJ Gorman
Atty: Beatty, Bean
Experts: Anderson, Volarich, England, Gonzalez

Claimant fails to prove PTD against Fund due to post-accident worsening including back surgeries and stents that produced intractable pain. Claimant's expert improperly included post-accident conditions to assess Fund liability, despite attempts to later clarify her position. Dobbs v City of Oran, DOLIR 7-26-11.

ALJ Robbins
Atty Taylor, Rodman
Experts: Guidos, Shea

Claimant failed to prove PTD against Fund flowed from combination and not from post accident worsening of cervical disease, which ultimately required 3 level fusion. ALJ considered treating surgeon more persuasive on issue than examining expert. Current v Little Hills Health Care, DOLIR 7-26-11

ALJ Kohner
Atty Pugliese
Experts: England, Volarich
Treater Rutz

Claimant failed to prove PTD flowed from a combination of the primary injury and prior conditions existing at the time of the accident, and not from post-accident worsening, according to a Commission decision affirmed 2-1. The ALJ compared multiple radiology studies and found evidence of worsening of a "new" C4-5 bulge and a new L5-S1 lumbar disc herniation several years after the accident. Claimant did not offer additional testimony how ratings of fibromyalgia and a kidney condition affected a capacity to work. The employer settled the primary case for 40% for a fusion, after claimant's accident required surgery for a disc level operated on about 4 years earlier. Trackes v Angels on Duty, DOLIR 7-13-11.

ALJ Gorman
Atty: Marty, Cordia
Expets: Berkin, Hoffman, Woiteshek

Claimant alleges neck and arm pain from cervical disc disease (unoperated) and bilateral carpal tunnel syndrome (operated), renders him unable to work in the open labor market because of severe symptoms which makes him take showers several times a day for pain relief and impairs his ability to even lift a coffee cup or staple papers. He last worked as a UPS driver in 2003 and collects social security.
Claimant, 56, settled his two cases involving the neck and arms against the employer, and claims the Commission should have awarded PTD against the SIF instead of permanent partial, because his experts supported a PTD award and the Fund offered no medical or vocational evidence. The court of appeals affirmed the PPD award. Claimant's medical history supported a finding that claimant was not a total at the time of the last accident, and any PTD flowed from subsequent worsening in his cervical condition. His vocational expert examined him 5 years after the accident and testified that at the time of the last accident the combination represented a hindrance or obstacle, but he did not address that the combined conditions were totally disabling. The medical history suggests a worsening of symptoms from mild to severe. No medical records were offered evidence, and the court relied upon medical histories contained in the expert reports. The court distinguished several cases, also involving claimant's same expert witness. Ronald Michael v Treasurer, State of Mo, No. SD 30365 (Mo. App. 2-23-11)

Atty: Newman, Coster
Experts: Volarich, Swearingin
Judge: Lynch

Claimant failed to establish liability of the second injury fund, when the claimant's vocational expert found onerous work restrictions from the primary work accident alone and other experts attributed high ratings totaling 100% BAW from the primary injury involving disc protrusions and worsening of a prior psychiatric condition. Claimant had settled the claim against the employer for 21%. Smyth v Oscar Wilson Engine and Parts, DOLIR 3-17-11

ALJ Kohner
Atty: Carter
Experts: Musich, Rosen, Lalk, Stillings, Kitchens

Claimant asserted he was permanently and totally disabled in a claim against the second injury fund after settling a claim against his employer involving both shoulders, elbows and wrists. Claimant is a pipe fitter who had permanent restrictions of lifting up to 5 pounds, among other limitations. The administrative law judge concluded claimant's primary injury alone precluded sedentary employment and denied Fund benefits, relying upon onerous restrictions and high ratings totalling 450 weeks of disability on the primary injury furnished by claimant's own expert against the employer. The award notes in a footnote that statutory reform in 287.808 may have changed the burden of proof to establish disability from reasonable degree of medical certainty to a standard of more likely than not. The case is Benoist v Anheuser Busch Co., DOLIR 12-2-10.

ALJ Percy
Experts: Volarich, England
Treaters: Emanuel, Caplin

Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.

The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant’s vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment, especially if claimant had other attractive traits to further justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant’s prior capacity to perform essential job functions with accommodation instead of the abstract vocational idea whether the open labor market deemed some accommodations toxic.
The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced unrefuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant’s prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the Fund’s vocational expert provided no persuasive testimony to refute the finding.

287:220 Second injury fund / calculation of synergy

2011-01-10T11:26:00.000-08:00

The Commission concludes it is a "common misperception" that individual disabilities flowing from a primary injury must separately meet statutory thresholds and may be considered cumulatively to assess second injury fund liability. Buhlinger v Sherrell Corp., 2011 MoWCLR Lexis 241 (Dec. 8, 2011)
ALJ Lane
Atty: Behrle, Morin

The Commission modified an award of SIF benefits for not considering the cumulative effect of prior disabilities which by themselves did not meet the threshold: 15% of the thumb and 5% of the knee. The Commission indicated the argument on appeal was whether the ALJ should have awarded a higher loading factor or PTD but considered this issue "implicated". Calvert v Noranda Aluminum, 2011 MOWCLR 242 (Dec. 8, 2011)
ALJ Robbins
Atty: Moroni

The Commission considered the cumulative effect of prior disabilities, reversing a denial of fund benefits. Perkins v Mo. Dept. of Corrections, 2011 MO WCLR 255 (Dec. 15, 2011).
ALJ Robbins
Expert: Poetz

The Commission reverses a denial of SIF benefits and considers the cumulative effect of pre-existing injuries and conditions to compute second injury fund liabilty, and found the ALJ erred denying benefits when prior conditions considered in isolation did not satisfy the statutory threshold. In the case the Commission allowed consideration of two prior hernias and a finger injury which separately did not reach the minimum amount. Salviccio v Western Supplier Co., 211 Mo WCLR LEXIS 239 (Dec. 8, 2011)
ALJ Wenman
Atty: Ituarte
Experts: Musich

The Commission reverses a denial of fund benefits and considers the cumulative effect of pre-existing injuries and conditions to conclude a claimant working previously without restriction had 40% BAW prior disability to assess SIF liability as a result of conditions such as uneven leg length and colon problems. Witte v Sho-Me Livesstock, 2011 MO WCLR 240 (Dec. 8, 2011)
ALJ Fischer
Atty: Salsbury
Experts Poetz

Commission considered later date of disability and not date of accident to assess second injury fund liability, to allow consideration of additional shoulder condition after pled date to enhance recovery.
Cohu v Earth Grains Bread, DOLIR 10-14-2011.
ALJ Meinders
Experts: Browne, Koprivica, Stuckmeyer, Drieling

Claimant settled his claim against the employer based on a claim that working as a security guard caused injuries to both feet in Darris v St. Louis Connect Care, DOLIR 1-4-2011 (Ottenad). The Commission affirmed a denial of benefits against the second injury fund, finding claimant failed to prove he sustained an occupational disease to his feet or that the prior conditions involving his heart and kidney synergistically combined. Claimant's expert originally attributed claimant's incapacity to work to prior heart problems and renal failure, but when he testified he "slightly altered" his opinion to try to implicate the Fund that the primary foot claim also was an important factor limiting claimant's capacity to work. The administrative law judge noted scant evidence to support a work-related history involving the feet in the medical records, although the records contained a history that claimant did a great deal of standing. It was noted that claimant's settlement with the employer was for a nominal amount that did not result in any net recovery after expenses.

ALJ: Ottenad
Atty: Akers
Experts: Feinberg, Schuman, Cantrell

Claimant failed to prove PTD against the SIF when he did not establish his primary accident resulted in any disability. Claimant fell backwards and was released for complaints of back pain about two weeks later. Claimant did not preserve any objection to expert testimony, although the doctor expressed opinions with a reasonable degree of medical probability instead of medical certainty. The Commission noted the failure to use such talismanic phrasing did not automatically render testimony inadmissible. Goldman v PCI, DOLIR 6-2-11.
ALJ Landolt
Atty Sievers, Schulte
Experts: Volarich, England, Gonzalez

Claimant failed to prove his primary "failed back syndrome" combined with his prior "lumbar syndrome" when he did not persuade the ALJ that his prior condition was a disability, and found his testimony about need for accommodation prior to the accident inconsistent with earlier deposition testimony. ALJ Mahon found claimant PTD from the last accident alone based on new work restrictions from claimant's expert and claimant's use of medications. Claimant had settled with the employer and proceeded against the second injury fund. Hubbs v Benchmark Construction, DOLIR 4-20-11.

ALJ Mahon
Atty Newcomb, Colburn
Experts Volarich
Treater: McQueary

Claimant failed to prove a synergistic effect to support an award for SIF benefits, according to the commission which reversed an award of about $7000 against the second injury fund for a claimant who hurt his hand and tried to recover additional Fund benefits for two previous comp settlements exceeding 30% BAW. Claimant's medical expert opinions were excluded as hearsay, and claimant failed to testify his primary 2007 and pre-existing injuries more than 10 years earlier synergistically combined. Bacon v City of St. Louis, DOLIR 4-12-11.
ALJ Vacca
Atty Lenze
Experts: Volarich, Schlafly
Treater: Brown

287.420 notice

2010-12-15T09:45:00.001-08:00

The claimant failed to prove she established timely notice as required by 287.420, according to a decision affirmed by the Commission in Cotter v Bakersfield R-IV School, DOLIR 12-15-10. Claimant alleged she required a C5-C7 fusion in 2005, as a result of lifting a 40 pound box of canned food in 2004. The administrative law judge noted claimant first provided written notice of a work related accident 5 months after her surgery, and found claimant's lack of any documented history of a work-related history significant. The lack of history was explained by the excuse that the topic did not come up. The claimant failed to overcome a finding of prejudice when her own expert testified that earlier treatment may have alleviated the need for surgery. An expert indicated that claimant's lack of medical treatment for a month was unexplained, as a ruptured disc would likely have caused immediate symptoms and a need to pursue earlier care. The administrative law judge declined to accept that the employer's personnel file was materially incomplete or that the employer was subject to a negative inference for not calling the former superintendent, who claimant reports she may have told about a work injury.

ALJ: Mahon
Atty: Alberhasty, Goodnight
Experts: Koprivica, Lennard, England

Claimant did not have a duty to report her carpal tunnel until October 2008 when Dr. Schlafly associated her condition to her employment. The commission found the employer's obligation that the 30 day reporting deadline began when a diagnostician made the connection. "Stray" comments that claimant had carpal tunnel and "does a lot of typing" was not sufficient to trigger a duty to report to her employer following an EMG study performed 5 months earlier.

The Commission noted 287.420 required notice of the "time" of injury, and notice was deficient when the claimant used a date of diagnosis (the EMG study) when there was no exposure or employment on the pled date. The employer, however, failed to demonstrate any evidence of prejudice as it had an opportunity to investigate the claim within 3 weeks of the EMG diagnosis, and had earlier knowledge of hand symptoms even months prior to the EMG study. The Commission in a separate opinion noted the employer misread Alcorn and 287.420.

The employer relied upon expert testimony that claimant had other risk factors for carpal tunnel syndrome including age, gender and obesity and asserted that claimant's activities were not hand intensive. The ALJ observed Dr. Crandall relied upon European studies and assumed ergonomic exposures were similar in this case: "Dr. Crandall relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. Dr. Crandall did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture." The case is Beckton v AT&T, DOLIR 6-9-11.

ALJ Carlisle
Atty: Evans, Cordes
Experts: Sclafly, Crandall

Fund PPD award affirmed

2010-12-15T09:25:00.001-08:00

The Commission affirms an award against the SIF for permanent partial disability benefits based on statutory minimums of 15% of the right wrist and ankle. No basis for alleged error is identified. The award does not identify that the SIF offered any expert evidence with a lower disability. Claimant had multiple prior injuries involving the foot/ankle and wrist dating back to 1987, but offered limited medical records. The employer settled the primary case for 37 1/2% disability for two replaced cervical discs, resulting in over $100,000 in medical bills and permanent restrictions of medium duty which precluded claimant from returning to his 3 year career as a firefighter. Battle v City of St. Louis, DOLIR 12-15-10.

ALJ: Carlisle
Atty: Thurman, Smith
Experts: Volarich
Treaters: Taylor

287.140 medical treatment

2010-12-13T10:02:00.000-08:00

Right to future medical treatment is not waived by decline some treatment
A claimant who refuses to pursue recommended medical treatment or tests does not waive her right to future medical care in a final award, according to a recent Commission case Katherine Hunt v Daimler Chrysler, DOLIR 12-3-10, reversing the ALJ’s denial of future medical. The administrative law judge awarded future medical care in two temporary awards following July 2005 and June 2006 accidents. In a final award, the same administrative law judge denied open medical care. Claimant alleged she was unemployable due to “constant pain” from an un-operated herniated disc, but declined to pursue epidural injections or myelogram. She treated only with her personal care provider for weight loss and nausea. The administrative law judge found that the claimant established a need for further treatment, but waived her statutory right to compel treatment as she declined to pursue it. The Commission reversed and ordered future medical care. Claimant did not waive a right to future medical because she declined to pursue some recommended treatment.

Comment: The employer has the burden under 287.140(5). to show a refusal to treat continued or aggravated a disability and that the refusal was unreasonable in light of the risk in order to deny benefits. Stawizynski v. J.S.. Alberici Construction, 936 S.W.2d 159 (Mo. App. 1996). A decision to decline more aggressive care for more conservative care can be a reasonable election. Jacobs v Ryder System, 789 S.W.2d 233 (Mo. App. 1990). The Commission essentially found the employer did not meet its burden of this affirmative defense. The Commission distinguished claimant’s decision whether to pursue certain treatment, or when to pursue it, was different from cases in which claimant unreasonably refused to change her lifestyle to cure or relieve her condition. Kern v General Insulation, 740 S.W.3d 691 (Mo. App. 1987)(refusal to quit smoking and reduce weight).

ALJ Wenman
Attorney: Gerritzen, Kennedy
Experts: Poetz, George

Claimant sustained career-ending injuries from an auto accident arising from her duties as a nurse but failed to prove an award for past or future Percocet and Fentanyl from her personal physician when there was evidence for her to taper their use and her expert could not explain why claimant's pain could not be managed with other medications. The employer stipulated to open medical but disputed the use of these medications and the award for permanent total. The administrative law judge found claimant obtaining a master's degree after her accident not an indication of her employability because she completed studies at a slower pace and on-line. Meyer v Pyramid Construction, DOLIR 6-24-10
ALJ: Tilley
Experts: Koprivica, Dreilin, Conway, Kane-Thale
Treaters: Gailbraith, Concannon, Gainor, Algen, Metzler
Attys: Collins, Huck

Claimant struck his head and states he developed dizzy spells, blurred vision and neck pain. He underwent extensive medical treatment on his own including multiple cervical steroid injections and use of narcotics from Dr. Padda, representing over $60,000 in disputed medical bills. Judge Kohner awarded 15% disability on the basis of grade I concussion and cervical strain, and noted Dr. Peeples' recommendation for only non-narcotic medication more credible due to his expertise. .Claimant's expert attributed the need for some medications to his work injury and pre-existing cervical conditions. Claimant's medical history indicated that he reduced his use of cigarettes and alcohol and was 'down to 2 joints' per week. Hempel v Lincoln Couty Electric, DOLIR 2-4-10

Claimant fell off a ladder and sustained thoracic fractures, among other injuries. Claimant, 43, contends he was unemployable and has not looked for work after his MMI determination in 2004. ALJ Carlisle found claimant's expert, a neurologist, lacked credibility that claimant was unemployable and severely depressed when all of the treating physicians indicated claimant could work. The employer retained a psychiatrist who concluded claimant over-stated or falsely stated some symptoms. ALJ Carlisle discounted claimant's testimony that he needed to lie down most of time, when such limitations were not documented in many of the treating records. ALJ Carlisle summarized video evidence of claimant operating a motorcycle, made inaccurate representations had been made on a job application, and claimant earned income from e-bay.

The employer was ordered to provide pain medication, but made a finding that use of Oxycontin was no reasonable based on Dr. Coyle's testimony that long term use will "ruin" him. The case is Ward v Ameren, DOLIR 11-17-09.

SIF defenses

2010-11-11T11:42:00.000-08:00

Post Accident Worsening
Claimant failed to prove a compensable PTD claim because unemployability flowed from post accident worsening of her neck to become a candidate from fusion and worsening of diabetes. The ALJ found claimant went back to work for about 1 1/2 years from her back strain answering phones, and such work based on lifting restrictions was accommodated and considered employment in the open labor market. Lewis v KU Medical Center, DOLIR 3-31-11. ALJ: Meiners Atty: Hill Experts: Koprivica, Titterington Claimant convinced an administrative law judge that her MS rendered her unemployable, but failed to show her PTD flowed from a combination of primary osteochondral knee injury and pre-existing conditions, and not from post-accident worsening. Experts did not support the statutory requirement for a synergistic effect when the MS condition alone was of such a magnitude to render claimant unemployable. Hill v The Boeing Company, DOLIR 11-4-10
. ALJ: Ottenad
Atty: Gault
Experts: Cohen, Kramer
Treaters: Dr. Ma, Dr. Kos

Statute of Limitations
A "claim" for purposes of reviewing a statute of limitations defense under 287.430 includes both a claim for compensation and a settlement, according to the western court of appeals, finding a claim against the second injury fund filed within a year after a settlement with the employer was timely. The decision follows a similar interpretation in 2009 in the Eastern District. The case is Treasurer of the State of Missouri v Phillip Cook, WD 72019 (Mo. App. 10-26-10). The court found the Fund's attempt to base its argument based on dictum is not persuasive. The Commission reversed an initial denial based on the SOL defense.

The second injury fund argued the award for PTD in a 2003 case was not supported by substantial evidence, but offered no evidence from any vocational or medical experts to rebut testimony from Dr. Stuckemeyer and Mary Titterington. Claimant was 64-years old and had an 8th grade education and the Commission found claimant not employable in the open labor market based on his primary settled injury involving a 20% right shoulder and prior conditions rated by Dr. Stuckmeyer for the same shoulder, the left shoulder, plantar fasciitis, back, and a heart problem. How these earlier conditions impaired claimant's capacity to work beyond limits from his education and age is not entirely clear in the opinion. The court deferred to the Commission that claimant was credible that attempts to return to work were a "real struggle" and that claimant's return to work after his primary work injury was not decisive whether or not he could compete in the open labor market.

The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, ED 92457 (Mo. App. 12-1-09). The court further rejected the Second Injury's Fund defense under the statute of limitations and found a "claim" was not always a WC-21 claim form, but could also be construed to mean the settlement itself for purposes of starting application of the 24 month statute of limitations. Claimant did not file a claim until 26 months after the original accident date.

In Cook v Calmar, DOLIR 1-14-10, the Commission followed Grubbs and reversed a denial of benefits, based on the same SOL defense when the claimant filed a claim against the fund 1 month after settling the case against the employer. The Fund produced no other medical or vocational evidence, to contest the claim, and ultimate award, for permanent and total disability arising from a 2003 accident.

Unjust enrichment

The claimant was awarded $254,700.20 in unpaid medical bills following two months of treatment for lung and head injuries as a result of falling off of a scaffold while working for an uninsured employer. The Fund did not raise any objections or offer any evidence at the hearing, but on appeal to the court of appeals disputes it should pay the award directly to claimant since the claimant might compromise the bills and use the balance as a windfall. The court clearly rejects the argument in Skinner v. Donna Morgan, SD No. 30019 (Mo. App. 3-8-10), finding strict construction and prior case law of Wilmeth v TMI Inc reject such a defense as unfounded and "conjuring a speculative scenario."

Appeal - failure to use exact statutory language in decision is not reversible error

Claimant injured his knee and sustained 15% new disability as a result of a meniscus tear, and received an award for permanent and total disability against the second injury fund because of prior conditions including multiple previous injuries to the same knee, the opposite leg and other conditions. The administrative law judge rejected opinions of Dr. Randolph who testified for the Fund that claimant never had any disability from his last accident and his impairment flowed from prior osteoarthritis. The Commission found evidence that claimant's last accident had caused a new 'medical condition', even though the administrative law judge did not use the phrase 'medical condition' in its findings. The court of appeals concluded that the failure to track the specific statutory language was not reversible error, and noted the Fund failed to provide any legal reasoning to support its proposition. Savage v Treasurer of Missouri as Custodian of Second Injury Fund, ED 93869 (Mo. App. 4-27-10).

No threshold amount

The commission modified an award against the second injury fund, increasing it from $18,180.60 to $23,539.33, finding claimant's primary foot injuries from standing on concrete synergistically combined with his prior asthma, sinusitis, and psychiatric issues to cause additional fund disability. The administrative law judge deemed such pre-existing conditions too minimal to award disability. Claimant, 38, had prior workers compensation settlements and pled claims against the second injury fund ranging from ringing ears to gastric issues. Claimant failed to prove repetitive trauma injury to his neck in a companion case when expert testimony was inconsistent with medical records. Dodson v von Hoffman Press, DOLIR 9-23-10

ALJ Fischer
Atty: Christiansen,
Experts: Lichtenfeld, Hogan

Trial stipulations limit scope of disputed issues

2010-10-05T11:29:00.000-07:00

A recent case from the court of appeals indicates a party cannot add disputed body parts at trial when the issue is not identified prior to the hearing.

Claimant asserts that the Commission wrongly denied him benefits for carpal tunnel arising from his use of crutches for a 2002 ankle fracture because he presented a causation opinion and ratings from his expert, Dr. Schlafly. Dr. Sudekum, the employer's expert, agreed with the diagnosis of bilateral carpal tunnel syndrome but attributed the condition to arthritis. The court of appeals stated that injuries to a specific body part must be presented to the ALJ. The court reports that claimant pled injuries to the "neck, wrists and ankles" as a result of a 2002 accident and introduced medical evidence to litigate the issue but the Commission properly denied benefits to the left wrist because claimant "did not claim injury to his right wrist before the ALJ, but only specifically to his left wrist, caused by the April 27, 2002 work accident. He did allege on review to the Commission that he had bilateral carpal tunnel syndrome that had not resolved, and therefore was disabled in both wrists. "

The court of appeals in Poole v City of St. Louis, ED 94052 (Mo. App. 10-5-10), http://www.courts.mo.gov/file.jsp?id=41520 affirmed the Commission's denial of permanent and total disability benefits, but remanded on a denial of future medical care because the Commission summarily denied future medical care without explanation and did not distinguish between Dr. Volarich's opinions for future medical care for radicular pain (found caused by a subsequent accident moving a mattress) and care for "back pain syndrome" that might be work related.

The ALJ erred awarded a higher load factor than stipulated by the parties. Neff v Fulton State Hospital, DOLIR 12-8-11 2011 mowclr lexis 247.
ALJ Zerrer
Atty: Kieffer

The ALJ erred deciding compensability of an "accident" when both parties in a temporary award admitted injury by accident and stipulated to decide issues of future medical and TTD. McCoun v OPAA, 2012 Mo. WCLR Lexis 6 (2-1-12)
ALJ Allen

25% BAW awarded to painter with 20/20 vision

2010-09-21T14:07:00.000-07:00

Claimant asserts he could not return to his life-long profession as a painter, after dripping paint caused abrasions to his corneas when he was painting a ceiling and caused ongoing symptoms of severe dry eye required medication and disturbed his sleep. The Commission modified an award to 25% BAW, based on a rating from claimant's expert, Dr. Musich, and disregarded a 0% rating from Dr. Pernoud, who concluded claimant had unimpaired vision with glasses at 20/20 but continued to require drops. Claimant was 48 years old.

The Commission found that the administrative law judge erred in his findings that claimant had symblepharon, when the diagnosis was not identified in the medical records. The Commission
assessed disability at the 400 week level (287.190) instead of using the medical tables in the regulations for vision loss at the 140/260 levels, noting application of the tables at a lower compensation formula did not apply because claimant's dry eye was not a specifically enumerated condition.

David Hicks v St. John Development, DOLIR 9-21-10
ALJ: Denigan
Experts: Pernoud, Musich

Court rejects lower comp rate for atypical duties

2010-09-01T09:21:00.000-07:00

The employer paid claimant benefits based on her salary as a teacher, but then claimed a statutory minimum rate applied under "strict construction" because at the time of the accident claimant worked atypical duties at a ticket gate for a school-sponsored football game. The Commission unanimously affirmed the decision rejecting the defense, finding it had "no merit" and there was no authority whatsoever asserted for the proposition to apply different rates based on segregated job duties.

The employer had stipulated the employee was covered, but later apparently questioned in a brief if claimant was excluded as a contest worker under 287.090.1(5). The administrative law judge found no basis to argue exemption as claimant was otherwise employed by the sponsoring school

The administrative law judge further found the employer had underpaid wages by calculating the rate over 52 weeks, instead of using a 9-month employment calendar. The 62-year claimant received an award of 17 1/2% disability for a fracture of the right humerus. The statute allowed discretionary award of disfigurement for a scar of the "arm" but not the "armpit." Lunn v Montgomery County R-2 School District, DOLIR 9-1-10.

ALJ Dierkes
Atty: Edelman
Experts: Poetz, Oliver

No benefits for acute meniscus tear without allocation testimony

2010-08-31T12:32:00.000-07:00

A registered nurse bumped her knee, developed an acute lateral meniscus tear, and underwent a total knee replacement but failed to prove she had any disability flowing from her accident, according to the recent Commission decision, Tillotson v St. Joseph Medical Center, DOLIR 8-25-10. Claimant failed in her proof of disability, even though she established both accident and an acute change in pathology.

Claimant's specific failure of proof arose from lack of expert opinion allocating disability between new and old knee pathology. Claimant's expert related the TKR to the accident. The administrative law judge found claimant's TKR flowed from prior arthritis and not from her acute meniscus tear, and that the TKR would not have occurred but for the prior arthritis. Neither claimant's expert nor any other expert specifically addressed what amount of disability related solely to the new lateral meniscus tear. The administrative law judge acknowledged any allocation of permanent disability for a meniscus tear was "very difficult" to assess, as the entire meniscus was subsequently removed as part of the total knee replacement.

A dissenting commission argued that the administrative law judge erred by applying a prevailing factor test for medical benefits. Proof of medical benefits, he argued, requires only a "reasonably related" standard and not a "prevailing factor" standard of proof, based on application of strict construction of 287.140.1, and would have awarded Dr. Koprivica's rating of 50%.

alj: Mueller
atty: Gorden, Christiansen
experts: Koprivica
treater: Berghe

Court lowers burden for suits against negligent co-workers

2010-08-03T07:56:00.000-07:00

An employee injured on the job can file a separate negligence lawsuit against a co-employee after settling a Missouri worker’s compensation case, according to a new case from the western district. Robinson v Hooker, WD 71207 (Mo. App. 8-3-10) http://www.courts.mo.gov/file.jsp?id=40391 reversed an order to dismiss a negligence claim filed after a plaintiff settled a worker’s compensation claim for permanent partial disability for loss of vision. A street cleaner lost control of a high pressure hose and struck the plaintiff, causing blindness in the right eye. The court of appeals reversed and remanded the order, and rejected defenses to the tort claim based on worker’s compensation immunity and res judicata.

A co-worker involved in an accident after the 2005 statutory changes is no longer entitled to assert immunity under §287.120. Leading up to the 2005 amendments, Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982), allowed immunity for co-workers without proof of "something more" beyond negligence. Suits against co-employees failed unless a co-employee purposefully and dangerously caused or increased a risk of injury

The court concluded that the 2005 requirements to apply strict construction required a re-evaluation of the defense created by Badami. Section 287.120 extends immunity only to employers, and a co-worker did not meet the definition of "employer" under §287.030.1. There is no immunity unless a co-worker "squarely" falls within the definition of employer. Robinson v. Hooker asserts this interpretation was being "mindful" to "effectuate legislative intent" as reflected in the "plain and ordinary language of the statute" and pursue a long-standing principle to preserve common law rights.

A claimant’s settlement is not res judicata in a subsequent claim against a co-worker as there was a lack of identity of claims and parties. Claimant’s negligence claim includes additional damages of loss of consortium and pain and suffering outside the scope of benefits permitted in the worker’s compensation statute. The court further found insufficient facts to support a defense based on official immunity.

The 2005 amendments were promoted to limit employer liability. Section 287.020.10, in the 2005 amendments, specifically abrogates several controversial cases which allowed broad interpretations of "accident" and "arising out of and in the course of employment." The "strict construction" changes, however, have been repeatedly judicially construed to narrow employer defenses: Roscom v Woodson Builders, 1-12-10 (drug testing), Norman v Phelps, 256 S.W.3d 202 (Mo. App. 2008)(appeal of temporary award), Allcorn v Tap Enterprises, 277 S.W.3d 823 (Mo. App. 2009)(notice) Robinson, perhaps more than any of these other cases, opens a larger rift in the limited liability of workplace accidents that may encourage a legislative fix similar to 287.020.10, or very prudent drafting of broad releases before settling any compensation claim with potential negligence liability.

PJ: Lisa Hardwick (appeal from Judge Byrn)
Atty: Starke, Cook

Cataract flows from femoral fracture.

2010-07-22T12:21:00.000-07:00

The commission modified an award of permanent and total disability benefits, and found the employer alone, and not the second injury fund, liable for life-time benefits. The case is Lyman v Allmon Contruction, DOLIR 7-22-10, in which a 59-year old carpenter fell 6-8 feet resulting in a fracture to his left hip, with complications of osteomylitis requiring extensive hyperbaric oxygen treatment and deep vein thrombosis. The court found that claimant's cataract flowed from claimant's treatment with his multiple hyperbaric oxygen treatments for his bone infection. The court found claimant credible that his shortened leg caused chronic pain, difficulty walking, and dependency on a cane. Vocational testimony indicated that "common" unskilled work would not allow him to frequently alter positions. Claimant had a failed return to work for 7 months running a drill and pulling wires.

The administrative law judge rejected the defense that the employee unreasonably refused to submit initially to cataract surgery and waived a claim for temporary total disability benefits. The court noted the employer had not offered cataract surgery for several years, that the employer initially referred claimant to an expert who would not treat comp patients, and noted risks associated with the surgery. Claimant significant pre-existing eye impairment "most likely" hindered his ability to compete for work, but those conditions were irrelevant as the last accident alone rendered claimant unemployable.

ALJ Wilson
Atty: Platter, Musick, Colburn
Experts: Woodward, Koprivica, Swearingin, England, Korn
Treater: Campbell

Commission wants "explanation" for judge's ppd award

2010-07-20T13:57:00.001-07:00

A 66-year old retired flight supervisor alleges she hurt her dominant shoulder in 2003 when a pilot hit her arm with a cockpit door, resulting in surgery for a partial rotator cuff tear with a poor result that she claims represented a career-ending injury, impaired her ability to play the piano and restricted lifting beyond 8 pounds. The Commission affirmed an award of 40% of the shoulder, and issued a supplemental opinion that the administrative law judge did not "explain" the basis of the award. The supplemental opinion summarizes claimant's multiple examinations by different orthopedic experts, and then concludes a non-treating expert is more persuasive. Neither the commission nor the administrative law judge adopted an additional rating to the elbow assigned by claimant's expert, who added an additional 20% rating for an elbow contusion.
Hawkins v American Airlines, DOLIR 7-20-10.

ALJ: Lane
Treater: Haupt
Experts: Miller, Zehnder, Emanuel, Walentynowicz, Volarich
Atty: Gauthier

Judge bars testimony from ex parte contact

2010-07-15T08:37:00.001-07:00

Claimant's direct supervisor was not allowed to testify on behalf of the claimant following ex parte contacts from claimant's counsel to prepare his testimony, in a ruling affirmed by the Commission. The administrative law judge concluded that any contact was not made with "improper" intent. The judge noted: in light of the employer being a governmental entity and the witness no longer being an employee of the employer, it is understandable that the employee’s attorney did not necessarily view the witness as a client of the employer and insurer.

Claimant, 63, received permanent total benefits following a back injury from unloading gravel which required kypoplasty for a burst fracture and resulted in permanent restrictions. The administrative law judge found claimant's testimony credible that claimant's advanced degenerative spinal disease was asymptomatic prior to the accident and claimant now experienced disabling pain that required him to lie down frequently. Claimant had been awarded social security benefits following the 2008 accident.

Lonnie Jones v Laclede County, DOLIR 7-15-10
ALJ Wilson
Atty: Reichert, Weidner, Vessell, Rowe
Treater: Tabb, Harbach
Experts: Bennoch, Eldred, Corsolini, England

Commission reverses award for vision loss

2010-06-25T07:58:00.000-07:00

The Commission reversed an award against the second injury fund based on synergistic effect when claimant detached retinas in two separate accidents, finding the claimant failed to prove that disability pre-existing the second accident satisfied threshold levels. The Commission considered three factors important: claimant settled the original case below threshold values at 10%, claimant offered scant medical records, and claimant's expert did not provide a narrative report to explain whether the "whopping rating" of 62% higher than the original settlement improperly included post-accident degeneration. The administrative law judge had awarded benefits, including a substantial loading factor of 60%. Deibel v UPS 7-20-10 (2-1)

ALJ: Vacca
Experts: Pernoud
Atty: Pashos

The commission in a 2-1 decision just reversed an award of disability for blindness, in the 6-24-10 decision, Biondo v Dial Corp. Claimant, 47, sustained blindness in his left eye, which he relates to sudden movements in 2004 while pulling a 150-pound hose in his work as a raw material unloader. The administrative law judge awarded 100% loss and 36 weeks for temporary total disability. The administrative law judge found the accident a “substantial factor” based on testimony from claimant’s expert who attributed claimant’s injury to a valsalva movement placing excess pressure on the eye. The Commission reversed an award of benefits based on its de novo review of credibility of the experts. The Commission found the employer's expert more credible regarding the impact of claimant's hypertension on his retinal hemorrhage and found assumptions by the claimant's doctor that claimant had performed valsalva maneuver prior to the hemorrhage not fully supported in the initial medical records. Claimant had other predisposing risk factors including hypertension and proliferative bilateral diabetic retinopathy.

ALJ: Vacca
Treaters: Territo
Experts: Pernoud, Korn
Atty: Wolfe

Carpal tunnel defense condemned as "junk science"

2010-05-20T07:24:00.000-07:00

A grocery store cashier developed a work-related carpal tunnel syndrome, according to a recent award affirmed by the Commission that condemned the employer's reliance on an ergonomist as tantamount to a fraudulent defense based on junk science. The case is King v Dierberg's Markets, DOLIR 5-5-10.

Claimant worked as a cashier for several years and obtained surgery for carpal tunnel when her employer's expert denied work was a prevailing factor based on other risk factors of age, gender, and smoking history. An ergonomist videotaped claimant's job duties and concluded that claimant did not move her hands hard enough or often enough to create a risk for carpal tunnel and tendonitis. Claimant's contends that the tape did not accurately represent all of her work activities. The administrative law judge found that claimant used her hands at work in a "constant" and "repetitive" fashion, that the ergonomist was not competent to render any causation opinions, and the ALJ concluded that the employer's hand surgeon expert not credible because his conclusions about certain keystroke exposures causing carpal tunnel were not generally accepted in the medical community. The judge opined claimant's expert who supports causation more credible despite a finding that "there is no definitive consensus in the medical community as to causation or a work link." The Commission affirmed the award for past medical, TTD benefits, and disability, although 2 of 3 members commented that the administrative law judge made "unnecessary" comments lambasting the defense expert as "worthless" and a "waste of time and money."

In a previous recent case, Scott v MidAmerica Hotels, DOLIR 3-10-10, a different administrative law judge was similarly critical of a defense relying upon ergonomic risk factors to dispute a carpal tunnel claim as merely setting ergonomic standards not directly related to causation factors.

Attorneys: Dalton (no defense atty listed)
Experts: Volarich, Ollinger, Zuccarello
Treater: Koo
ALJ: Vacca

"Not Me on Video" asserts PTD claimant

2010-05-19T13:18:00.000-07:00

In a case of mistaken identity, claimant contends that the employer's videotape did not show him working but videotaped his stepson working under a car instead. ALJ Landolt dismissed the impact of several days of surveillance capturing only 2 1/2 hours of video of questionable quality, and awarded the 56 year old claimant with a back fusion permanent and total disability benefits.

Claimant injured his back and underwent an two level fusion at L4-s1. Claimant returned to work and days later reported a new accident, and ultimately underwent a "redo" posterior fusion at L4-L5. The initial surgery may have been a failed fusion, although claimant reports new symptoms following his subsequent accident. Claimant never returned to work and despite a 2007 MMI release he continues to receive pain management from Dr. Kennedy, a surgeon originally picked by his employer. Claimant's expert contends he requires narcotics indefinitely.

Claimant recovered 30% for his 2001 accident, another 30% for his 2004 accident, open medical, and PTD against the second injury fund. ALJ Landolt concludes any "credit" for about $85,000 in overpaid TTD benefits should be resolved among the defendants and not claimant, since both defendants shared the same carrier. Claimant received 1/3 million in medical and TTD benefits prior to the award. Balch v Brambles Equip Services, DOLIR 5-17-10.

Attorneys: Wagner, Lori, Osborne
Experts: Bernardi, Kitchens, Mishkin, Musich, Shea, England
Treater: Kennedy
ALJ: Landolt

Death no bar to "accured" benefits

2010-05-19T12:45:00.000-07:00

When is a disputed surgery reasonable or unreasonable under worker's compensation if a patient has an existing incurable disease that would typically shorten his life expectancy to a few years? In a recent case affirmed by the Commission a consulting orthopedist flirts with the issue but the ALJ never resolves it because claimant's ALS is diagnosed after his disputed lumbar fusion.

Claimant reported he injured his back in 2002 after lifting 200 pound doors, and never returned to work. After the employer released claimant from care for his "facet syndrome", the claimant proceeded with an unauthorized 360 L5-S1 fusion performed by Dr. Piper in April 2003 for an "annular tear" and "internal disc disruption." The employer weeks before the surgery sent claimant to an orthopedic surgeon who advised against it, and concludedthat it was fraught with problems, and advised claimant for a work-up for CNS problems. Following the 2003 surgery claimant was diagnosed with ALS and died in 2006. The case eventually proceeded to hearing years later in September 2009, when ALJ Landolt awarded $141,877.87 representing the $84,748 in bills for the disputed surgery, 28 weeks TTD, and 30% BAW to the surviving widow. The employer's expert, Dr. Wagner, later declined to testify that the surgery itself was unreasonable, but questioned if ALS had it been diagnosed prior to the surgery if claimant would have been a surgical candidate for a fusion. The case is Adams v McBride & Sons Enterprises, DOLIR 5-13-10.

attorneys: Ann Dalton, Nanci Martin
experts: Dr. Volarich, Dr. Wagner, Dr. Raskas
treater: Dr. Piper
ALJ: Landolt award $141.877.87

Schoemehl: death benefits available to surviving spouse after 2008 fix

2010-04-07T12:56:00.000-07:00

Like a bad sequel, the legacy of Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. banc 2007), as well as the statutes enacted after that decision "to undo the effect of the Schoemehl decision." Roller v. Treasurer of Missouri, 297 S.W.3d 128, 132 (Mo. App. W.D. 2009), continue to surface.

In Goad, dec. v Treasurer of the State of Mo. , WD 72820 (Mo. App. 11-22-2011) the claimant's spouse could recover survivor benefits when the claimant's death occurred after the legislative fix, reversing the opinion of the commission which concluded the benefits had not "vested." Claimant's underlying injury did not occur until after the January 2007 Schoemehl decision but remained "pending" at the time of the June 2008 fix. The court identified no legislative intent to support retrospective application and such an intent may raise additional constitutional issues and the legislature cannot reduce the extent of damages after a cause of action has accrued. The SIF offered no evidence that it was prejudiced by an amendment to perfect the pleading from PPD to PTD.

A similar issue is pending before the Supreme Court in Gervich v Condaire, Inc., No. SC 91727
The Commission in Gervich addressed the issue when a dependent surviving spouse can step in the shoes of a deceased spouse to continue to receive permanent total benefits. In a 2-1 opinion, the Commission concluded that when the claimant died from unrelated causes in 2009, the surviving spouse could not recover benefits because there was no vested interest pending at the time of 2008 legislative fix. Any interest in 2008 was not "pending" and subject to divestment. A dissenting commissioner asserted any claim was "pending" because the case was filed prior to the 2008 fix, The case is Gervich v Condaire, DOLIR 4-7-10.

In White v UMKC, DOLIR 5-26-11, the Commission concluded that Shoemehl benefits applied even if the amendment from a permanent partial to permanent total occurred after the 2008 fix. In the case claimant underwent a 2 level fusion and sustained 40% disability after tilting his neck in awkward posture for several hours.
ALJ Miener
Atty: Yarwod, Fowler

Judge Dishes NIOSH Standards

2010-03-11T12:10:00.000-08:00

Can a waitress ever work with enough hand intensity to develop carpal tunnel syndrome? ALJ Ottenad rejects Dr. Crandall's "overbroad and incredible" and "bold" exclusion of such an occupation as a prevailing factor, and awards temporary benefits noting Dr. Crandall over-relies on NIOSH standards:

"Those guidelines deal with what constitutes an "ergonomic risk factor" for carpal tunnel syndrome, not whether or not Claimant’s job activities were "the prevailing factor" in causing the condition. "

Claimant is 24 years old, and served 60 to 90 customers daily. Judge Ottenad finds Dr. Crandall less credible and concludes the Dr. Crandall was "intent, from the very beginning, to find the condition not work-related."

Claimant relied upon a March 2007 report from Dr. Schlafly recommended treatment, but did not proceed to a hearing for temporary benefits until more than 2 years later in July 2009.
The Commission affirmed the temporary award in Scott v MidAmerica Hotels, DOLIR 3-10-10.
The Commission reached a similar conclusion in a claim against the same employer in the Kitchen case, 10-14-10, rejecting the same defense expert's opinions on causation for a food server claimant alleging repetitive trauma. Dr. Crandall in the earlier case based his opinions on OSHA standards.

My IME doctor "assaulted" me!

2010-02-23T14:48:00.000-08:00

The plaintiff alleges in 2006 Dr. Rotman examined her in an independent medical exam in conjunction with an auto personal injury claim and states the orthopedist caused myriad injuries by asking plaintiff to move her body in various directions.

The dispute in the case was whether or not plaintiff could proceed in a claim for damages under a theory of intentional assault and battery or was limited to a malpractice claim. Plaintiff asserts that she was not receiving a health care service at the time of an independent exam. Plaintiff alleges an IME was not a medical exam, and that plaintiff could proceed with an assault case and was not precluded by not filing a timely 538.225 affidavit required in malpractice claims. The circuit court dismissed the case due to lack of a timely affidavit, a decision affirmed by the court of appeals. The court noted that an independent medical examination is by definition a health care service. 538.205(5), Jacobs v Wolff, 829 S.W.2d 470 (Mo. App. 1992)

The case is Devitre v Orthopedic Center of St. Louis, No. ED 93366 (Mo. App. 2-23-2010), and should be required reading for any examiner using IME boilerplate disclaimers that they are not providing "treatment" or establishing a patient relationship.

In Fortenberry v Buck, D.O. No. WD 70490 (Mo. App. 3-16-10), the court of appeals reversed a dismissal of a malpractice claim of a plaintiff who asserts a cortisone injection injured his ulnar nerve and rendered him unemployable. The administrative law judge in the compensation case awarded PTD and open medical following the 1997 steroid injection.

Appeal -

2010-02-12T13:14:00.000-08:00

Strict construction - does it require a separate credibility finding?
The Commission reversed an award of disability and concluded that claimant failed to prove that his cervical disc surgery or undiagnosed symptoms of impaired ability to speak, hear or talk flowed from lifting a box or working 13 years as a library assistant due to inconsistent medical histories. The Court of Appeals rejected the legal argument that strict construction prevented the Commission from denying the claim and reversing a credibility finding without a separate hearing, a position established under the former liberal construction standards since 1931. Snyder v Consolidated Library District No. 3, WD 70641 (2-9-10)

Penalties for appeal
The western court of appeals recently sanctioned an employer $81,609 in attorney’s fees for making a constitutional challenge that it had a right to appeal a temporary award, contrary to a state rule and unfavorable precedent. The case is Motor Control Specialties, Inc. And the Ohio Casualty Ins. Co. v. Labor and Industrial Relations Commission, State of Mo., Stephen M. Petelik, WD 71586 (Mo. App. 11-9-10). The Commission in 2008 sanctioned the employer $228,000 for not complying with a temporary award.
Petelik reached the court of appeals 3 times since 2006. The court originally dismissed the appeal in 2006 due to lack of jurisdiction because the award was not final and the employer was not denying all liability. The employer sought a declaratory judgment that a state rule limiting appeals until a “final” award has been entered is unconstitutional. The court of appeals in 2008 reversed a dismissal of a declaratory judgment. The employer appealed a third time in 2010 when the trial court found the state rule limiting appeals constitutional and awarded attorney’s fees.

The case involved a 2003 back injury, in which the 41-year old claimant was found in a final 2008 award to be permanently and totally disabled for low back syndrome following a fusion. The employer did not dispute accident and had made nominal medical payments, but disputed causation based on late notice and belated symptoms until claimant went on a fishing trip several days later. The employer waived defenses to any factual claims in the petition as a result of a late answer. The administrative law judge in the final award opined the employer’s defenses were questionable, but not unreasonable, and did not awarded attorney’s fees. The Division doubled an award for non-compliance of the original temporary award ordering benefits and medical treatment, resulting in a final award of permanent total at $388.78 per week for life, future medical, $457,845 of past accrued benefits, including about 238 weeks of TTD and $272,000 in medical and penalties. Claimant went into bankruptcy following the accident, and obtained a two-level fusion through his wife’s insurance.

The court of appeals affirmed the denial of declaratory judgment; based on de novo review the trial court did not misapply the law. The employer has no constitutional right for review of intermediate decision making, and the rule did not thwart judicial review of a final decision.

The employer argued that the statute to allow review of “any” awards conflicted with a rule limiting review only of final awards. The court construed legislative intent through other provisions to distinguish between final and temporary awards. The court noted that §287.490 only provided review of “final awards” to the court of appeals, and it was “absurd” to allow review of temporary awards to the Commission and not to the court of appeals. The court noted the statute distinguished when an ALJ could modify a temporary or final award.

The trial court did not exceed its mandate to award attorney’s fees, when the mandate was a “general” mandate. The award of attorney’s fees fell within an exception to the general American rule based on the collateral litigation exception. Judge Newton considered the “equities” between the parties supported the award of attorney’s fees, the employer/insurer was “well-funded” and the claimant was not; the employer breached a statutory duty and “reneged” to pay an injured worker who receives an award; and the employer pursued injunctive relief instead of complying with the temporary award. Claimant was deemed a “prevailing party” as the employer originally named him as a party, but then dismissed claimant from the appeal.

ALJ: Landolt, Wenman
Attorneys: Leahy, Layton, Brown, Morgan, McClitis
Experts: Curylo, Poetz

ALJ Dumps PTD Arthritis Combo

2010-01-22T13:03:00.000-08:00

Claimant alleged he could never work again because he was hunched over and could bare walk due to arthritis. He worked many years in an ammunition factory pushing heavy buggies of ammunition. The employee sought further benefits against the Second Injury Fund after an 18% settlement against the employer, alleging his severe rheumatoid arthritis (pre-existing) combined with his alleged work related osteoarthritis. ALJ Mueller found claimant's medical expert, Dr. Koprivica, unpersuasive and his opinions conclusory and unable to differentiate impairments from either condition and did not support that work even caused or aggravated osteoarthritis. Angus v ATK, DOLIR 1-22-10.

PPD denied for back surgery due to failure to allocate disability

2010-01-21T11:31:00.000-08:00

Claimant is a 50-year old poultry plant employee who alleges she injured her back in 2003 when she fell backwards while putting on a booty and hurt her back again in 2005. She returned to the plant following her October 2006 back surgery until the plant closed in 2008, and then claimed she was unemployable due to chronic back and leg pain. ALJ Holden awarded 15% disability based on a rating from her expert, Dr. Bennoch, for a head injury but noted claimant's expert failed to apportion whether the 2003 or 2005 accident caused her back disability. Dr. Bennoch indicated that "some" disability flowed from both accidents, and originally attributed all the disability to the first accident. Claimant reported after the first accident she was essentially pain free. Dr. Woodward identified 12% for the "work-related condition." ALJ Holden noted that claimant attempted multiple ex parte contacts to her by e-mail prior to the award and denies that she did read the emails or attachments. Crank v Willow Brook Foods, DOLIR 1-21-10.

In Moll v Martin Marietta Materials, DOLIR 3-17-11, the Commision found that claimant's expert allocated 0% disability pre-existing to the back based on claimant's denial of symptoms, and reversed a finding that claimant had failed to allocate prior and current disability to the back. The Commission award 22 1/2% of the back for claimant's alleged injury to 2 disc bulges with nonradicular lumbar syndrome, following an incident when claimant stated she was driving a truck and she hit a ditch in the road and bumped her head. Claimant had undergone a two level cervical fusion following the incident, resulting in an award of 27 1/2% BAW.
ALJ Robbins
Atty: Rice, Dietrich
Experts: Volarich, Chabot
Treater: Gibbs

Commission reverses temporary award for disc replacement

2010-01-20T06:52:00.000-08:00

Claimant, 37 hurt her low back from two lifting incidents at a nursing home and administrative law judge Kasten issued a temporary award to provide treatment for a disc replacement, as recommended by claimant's expert Dr. Gornet. The commission reversed and awarded permanent partial disability of 2 1/2% for each incident. The commission found Dr. Gornet less credible as he relied on diagnostic studies performed 3 years after the accident, and he did not fully address the impact of other medical records documenting at times the absence of symptoms. The commission permitted an appeal of a temporary award even though the employer provided medical benefits, noting a tender of medical care was not inconsistent with a later denial of liability. The commission did not reach the issue whether the administrative law judge exceeded his statutory authority name a specific medical provider without a finding that the claimant's health and recovery was endangered. the case is Martin v Mark Twain Care Center, DOLIR 1-19-10. ALJ Kasten In Kaempfer v G.A Rich & Sons, DOLIR 3-22-11, the Commission modified an award and found the ALJ made an "improper" award to designate a specific provider but affirmed an award for future medical care. The claimant fell backwards and was awarded 67 1/2% PPD for his back and neck with an award of total benefits against the Fund. Claimant's previous settlement from an earlier accident involving the brachial plexus and ribs represented about 60% BAW. The Commission found the ALJ improperly excluded claimant's deposition and social security records. Similarly, in Eaton v AT&T, DOLIR 3-30-11, the Commission in a 2-1 decision concluded the ALJ exceeded authority to designate Dr. Schlafly as a treating physician in a temporary award. ALJ Kasten Atty: Meyers, Prosperi Experts: Margolis, Randolph, Chadauri, England Treater: Dr. Park (c4-c7, l3-s1 fusions), Kamath

Late Answer Does not Bar Arising Out of Defense

2009-11-16T09:01:00.000-08:00

An employer can face harsh penalties by not filing an answer on time, but the business does not lose the right to contest legal issues whether an accident arises out of employment, based on a recent court of appeals decision, Anderson, dec. v Veracity Research, WD 70452 (Mo. App. Nov. 10, 2009). Claimant died in a fatal car accident when he lost control of his car. Experts identified a BAC equivalent to 10-11 alcoholic drinks. The employer did not assert that alcohol consumption was proximate cause of the accident, and officers of the Blue Springs Police Department could not state whether this was an a proximate cause to the accident. The employer contested claimant had removed himself from the course of his employment and was engaged in personal endeavors. The survivors argued that the employer's failure to file a timely answer admits the "allegations," including the assertion that claimant died in the scope and course of his employment. The court disagreed, noting the state regulations, 8 CSR 50-2.010(8) applied only to waiving claims of factual statements. Any inference or presumption arising from the fact that claimant was injured while on an out of town business trip was effectively rebutted by the evidence that claimant's accident was at midnight beyond normal working hours ending at 2 p.m., that alcohol was not permitted on the job, and that he possessed none of his tools of the trade he used to investigate claims fraud.

Dependency

2009-10-23T11:39:00.000-07:00

A single mother whose 19 year old son died in a car accident in the course and scope of his employment failed to establish that she was a partial or total dependent for survival benefits. Claimant testified she was totally disabled in 2003, and her son quit school to work full time to support the household. The issue of dependency is determined at the time of the injury. Claimant established she was dependent on claimant until Feb. 2005, but claimant did not provide any support from Feb. 2005 until his death in August 2005, except for paying a cell phone bill on one occasion. The court found that the Commission could have made reasonable findings that claimant had failed to establish she was a dependent at the time of injury as her son did not provide support or in-kind support such as purchasing food, clothing, or even visited claimant since he moved to Missouri to live with his girlfriend. Occasional gifts do not arise to the level of dependency and the court found it "unfortunate" that claimant did not meet her burden of proof. The case is Vice, dec. v. Advantage Waste Services, No. SD 29671 (10-15-09).

Maximum medical improvement (MMI)

2009-10-22T11:51:00.000-07:00

MMI required or PPD
A surviving spouse cannot recovery benefits when an injured employee dies from unrelated causes unless the claimant has reached maximum medical improvement and benefits have accrued into existence as a legally enforceable right, based on the new court of appeals decision in Cantrell v Baldwin Transportation, No. SD 29642 (Mo. App. 10-21-09).

Section 287.230.1 distinguishes whether a survivor can recover benefits when death is from causes related or unrelated to the industrial accident. Claimant injured his shoulder in December 2006, a physician recommended surgery, and claimant died from unrelated causes before the surgery in July 2007. The issue in the case was whether or not claimant had reached MMI. The claimant's counsel obtained a disability rating and asserted claimant was at MMI because his treatment was "on hold" and he was deemed at the time not a surgical candidate. The Court of Appeals affirmed the Commission's denial of benefits. The court found that the recommendation for additional surgery supported a finding that claimant had not achieved MMI and benefits had not accrued,1 as required by 287.230.1, to entitle a a surviving spouse to recover benefits when death is from unrelated causes. The treating surgeon had not placed claimant at MMI, by implication, although that remains unclear from the opinion.

1 The Commission previously found an attorney could prove what disability had accrued by a "rating" exam after claimant's death. Henke v Hunt Concrete Co., DOLIR 3-20-01.

MMI miscalculated
An administrative law judge found claimant permanently and totally disabled when the employer closed its plant in 2000. The Commission reversed and found the MMI determination not supported by the evidence as the parties had stipulated to a MMI date in 2004 when a hand surgeon released claimant from care. Claimant had received social security benefits for his carpal tunnel, heart, orthopedic, and psychiatric conditions. The Commission affirmed the award of lifetime benefits to claimant's surviving spouse.
Gruendler v Union Camp Corp., DOLIR 8-12-10.

ALJ: Hart
Atty: Wagner

Depression, Mental Stress and Psychiatric Injury

2009-09-30T06:45:00.000-07:00

Conversion Disorder
Claimant demonstrates bizarre symptoms which many experts cannot explain, but is awarded permanent and total disability benefits for a conversion and adjustment disorder, according to a recent Commission decision finding a disabling psychiatric condition flowing from a relatively minor physical trauma. The case is Fischer v Montgomery County, DOLIR 6-15-10. Claimant worked as a vehicle maintenance employee and initially treated for a concussion and back injury diagnosed as a strain or "subclinical" compression fracture. Claimant presented with unexplained symptoms shortly after the accident. Claimant returned to work for 5 months in a "failed" return to work when he received no treatment, but performed limited duties as a driver.

Conversion disorder is a diagnosis of exclusion, when there is no other explanation for claimant's behavior. The administrative law judge repeatedly finds that no expert diagnosed claimant as a malingerer, and that a finding by an expert that claimant's conduct was "voluntary" was not credible because it was not adequately explained. Claimant after the accident appeared stooped and twisted, stuttered and twitched, and complained of 10/10 pain levels unless he used narcotics. ALJ Doughty rejected the defense that claimant merely aggravated a pre-existing psychological condition, noting evidence about claimant's high level of function before the accident working several jobs, raising dogs and chickens, and enjoying jumping on trampolines with his children and his successful recovery from alcoholism. The judge rejected the defense that claimant's marital or custody issues caused or protracted his symptoms. The awarded included open medical for the 44-year old claimant, life time benefits, and approximately 5 years of accrued weekly benefits. The judge applied former "liberal" standards for the pre-reform 2004 accident, and declined a defense invitation to retroactively apply the 2005 law that emphasizes more objective evidence.

ALJ: Doughty
Experts: Bassett, Smith, Hogan, Peeples
Treaters: Cramp, Kondro
Attorneys: Moreland, Kiefer

PTSD from assault
Claimant is a teacher who was assaulted by a patient and developed some superficial physical injuries and PTSD, which kept her off work more than a year from Sept. 2007 to December 2008. She was later able to return to work during a summer school position. The administrative law judge awarded 12 1/2% disability and an additional 6 months of TTD, affirmed by the Commission.

The employer on appeal argues 287.190.6(2) precluded testimony from claimant's psychologist expert because the opinion was not certified by a physician. The employer had not raised the issue at the time of deposition. The commission concluded the use of "shall" in 287.190.6 was "directory" and not mandatory because the statute identified no sanctions for noncompliance, and never defined what it meant by "certified" or "demonstrated." Testimony from a psychologist did not run afoul of the statute. Simpson v Board of Education, DOLIR 5-26-11.
ALJ: Landolt
Atty: Vetter, Taylor
Experts: Shaw, Stillings

Depression from medication
Claimant was unemployable in the open labor market due to hepatitis C and side-effects of medications which caused depression and confusion. Claimant was exposured to hep c while working as an emergency room nurse in July 1998 and stopped working about 4 months later. Claimant settled the claim against the employer and in 2010 had a hearing against the second injury fund for permanent total alleging his condition initially alleged it combined with a pre-existing mental condition diagnosed by his forensic expert many years after the primary accident. The commission found the expert's conclusions were unfounded and incredible and based on wrong assumptions about a variable work history. The court found the testimony was controverted by claimant's own statements that any prior depression was not an obstacle or hindrance to employment and a treating expert who found claimant's PTD solely related to the primary injury. Pursey v Christian Hospital Northeast and Treasurer of Mo., No. ED 96496 (Mo. App. Dec. 13, 2011)

Atty: Banton, Barnard
Experts: Stillings, Crippin, Lalk
Judge: Cohen
Treaters: Mattalin, Bacon

PTD from 9/11 encounter A mental health care employee received permanent and total disability benefits against the second injury fund at age 43 based on a combination of mental stress over 9-11 and prior psychiatric conditions. He was sent to New York City after 9-11 to help postal workers as part of an employee assistance program. He developed symptoms after dealing with events of 9-11 and was sent home after a few days. He continued to work more than a year later and in Feb. 2003 was hospitalized for affective disorder, when he expressed a desire to shoot co-employees, and never returned to work.The Commission rejected SIF defenses to an award of disability for a 2001 accident that claimant had failed to prove disability because he went back to work full-time or that he had a "new" back accident in 2003. The case is Davis v Magellan Health Services, DOLIR 1-14-10.

PTSD secondary to back injury
Claimant can no longer work due to depression, according to a Commission decision affirming a PTD award that the administrative law judge considered a close case. Venable v St. Louis Bridge Co, DOLIR 7-26-11. Claimant hurt his back and required a multi-level fusion. He had a previous back surgery and settlement but stated he didn't have much pain before the 2003 accident involving a 1700 pound expansion joint. He claims he developed depression and PTSD. Claimant’s wife testified he wasn’t fun loving and easy going: now everyone called him grouchy. In an earlier temporary award, the administrative law judge ordered the employer to provide treatment for an adjustment disorder. In a final award, a different judge found the employee’s expert more credible. Dilallo v City of Maryland Heights, 996 S.W.2d 675 (Mo. App. 1999) indicates that a “temporary” award is just that: a final award can reach different conclusions based on additional significant evidence. The Commission issued a separate opinion noting “additional significant evidence” supported the change. Claimant’s expert, when he was re-deposed, admitted that he now had reviewed the medical records that he had not reviewed at the time of his initial evaluation and concluded claimant could never work again because of depression and PTSD. Dr. Wolfgram testified on behalf the employer that claimant did not need medication, that he needed to stop the litigation and he was too entrenched in his 2003 case. “We now have a 900-pound gorilla, and nothing is going to stop it unfortunately.”
ALJ: Gorman, Dinwiddie
Atty: Keefe, Arias, Bean
Experts: Mirkin, Wolfgram, England, Volarich, Liss

Commission awards PTD for mental stress after leaving 30 year job
Claimant developed "emotionally damaging" changes after leaving a 30 year career in drywall, following injuries to his wrist and elbow. The Commission reversed a denial and award permanent total disability benefits against the second injury fund on the finding that claimant's accident made him more depressed and anxious and combined with pre-existing psychiatric disability associated with unnatural death of family members. The parties stipulated to PPD values regarding the orthopedic claims. The Commission considered the employer's psychiatric expert less persuasive because she did not have medical records available at the time of her initial exam, and maintained her original opinions in a supplemental report. Northcross v Painters District Council No. 2, DOLIR 4-14-11.
ALJ Vacca
Atty Marglous
Experts, Stillings, Smith

Commission affirms PTD against SIF due to prior alcholism with depression
Claimant, 51, alleges he was unemployable after a back injury working as an ironworker in 2003, and received a PTD award against the Fund. Claimant had worked 25 years as an ironworker, handling rebar. His expert concluded claimant was unemployable because of a history of alcohol and illicit drug use, depression and other conditions, whcih included drinking up to 24 beers a day. Claimant's expert identified peripheral neuropathy in his arms and legs as a result of drinking, which claimant states he stopped about 8 months before the award. The case is Harris v Rebar, DOLIR 11-5-10

ALJ: Lane
Atty: Vetter, Schute
Experts: Volarich, Stillings, Lalk, Randolph, Bassett

Commission affirms PTD award for PTSD following back injury
Claimant sustained a back injury and post traumatic stress disorder with major depressive disorder. The Commission rejected the defense that the administrative law judge erred applying 287.190.6(2) relying upon claimant's subjective complaints as a basis for her psychiatric disability, and identified no error that the psychiatric findings were disproportionate to the physical injury. The case relied upon the credibility of the experts. The administrative law judge found the employee's psychiatric expert more persuasive and noted he relied upon additional tests and was not "grudgingly" in his interpretation of DSM-4. The employer's expert found claimant's accident did not affect pre-existing psychiatric conditions. The employer's vocational expert considered limitations only related to the physical injury and not the psychiatric injury. Sellars v Orkin Pest Control, DOLIR 8-13-11.
ALJ Mueller
Atty: Eppright, Clinkenbeard
Experts: Schmiudt, Hughes; Koprivica, Titterington, Cordray Tx Donohoe

Commission awards PTD for prior severe depression.
A 47 year claimant with a GED education received an award for permanent and total disability benefits against the second injury fund due to a combination from a wrist injury and prior history of severe depression. Claimant established evidence that his depression was previously disabling because he had used FMLA for depression and he had difficulty in high school. He had worked 18 years for the water department but maintained himself on medication for ADD, bipolar disorder, schizophrenia and at the time of the hearing he lived with his mother who performed most of his household activities. Brawley v City of St. Louis, DOLIR 1-19-10.

Commission awards PTD for PTSD. A 43-year old Missouri mental health care worker received permanent and total disability benefits for post-traumatic stress disorder, which he states flows from his experience dealing with the Sept. 11 attack. After going to New York City for 4 days to help postal workers deal with the 2001 Twin Towers attack, claimant experienced difficulty working, concentrating and had nightmares and anxiety. He returned to work and more than a year later was hospitalized for major affective disorder, after he threatened to shoot co-workers, and then he never returned to work. The Commission affirmed an award of permanent and total disability benefits against the Second Injury Fund, due to the combination of the primary claim settled with the employer and evidence of pre-existing psychiatric disability. The case is Davis v Magellan Health Services, DOLIR 1-14-10.
Commission modifies award to include mental injuries
Claimant established repetitive trauma injury to her back after working at Wal-mart approximately 2 years as a stocker from 2002-2004, underwent l4-s1 percutaneous discectomy, and reported continued high level pain complaints summarized in a detail 55-page opinion. The Commission awarded an additional 5% for psychiatric disability, modifying an award from Judge Miner who assessed 40% permanent partial disability for her back, 0% for psychiatric, and rejecting claimant's medical and vocational evidence of permanent total. Dr. Cordrey, the only psychiatrist to offer evidence, noted claimant's history of over-dose, and apportioned a nominal amount of her condition flowing from the accident, and concluded her psychiatric condition arose mostly from nonoccupational issues. Claimant was denied medical bills and her testimony that pain made her need to lie down not credible, as she did not ask to lie down during the 9 hour hearing. Judge Miner does not that claimant grimaced, however, and brought a pillow. The case is Lisa Abmrose v Wal-mart, 11-4-09.

Sexual Harassment Claim denied.
Claimant worked about 3 years as a salesman and fails to prove occupational disease from sexual harassment due to various claims of extraordinary and unusual behavior including claims that his supervisors routinely tormented him, slapped his buttocks, grabbed his genitals, and told him over and over again that they would make him "squeal like a pig." He alleges his supervisor would talk about his exploits with prostitutes, and would bounce golf balls and shoot rubber bands at people’s genitals. The case is Stephen Bray v G&K Services, DOLIR 4-9-09.1Judge Ottenad concluded claimant lacked credibility after the three-day hearing and that his medical experts relied upon inaccurate histories. He concludes the job included inappropriate sexual jokes, cursing and sexual innuendo and politically incorrect conversation but found claimant's more "extreme" descriptions of his work environment and not fully supported by other witnesses. Claimant had described multiple causes when he sought medical treatment. The judge identified a medical diagnosis that clamant was a malingerer and had a significant prior psychiatric history from sexual trauma as a child and his PTSD experiences serving in Desert Storm. Claimant's performance during testimony also played a key role in the outcome. The judge noted: "While initially upon direct examination, Claimant seemed believable and seemed to have been genuinely affected by the nature of the environment he was subjected to at Employer, that all fell apart for him on cross-examination when he became evasive and contradictory at times with his testimony. The real problems arose for Claimant though when comparing his testimony to the other documentary evidence and medical reports, and finding that there were glaring discrepancies and inaccuracies that went straight to the heart of his testimony. ". e.g. Duncan v Springfield R2, 897 S.W.2d 108 (Mo. App. 1995) (rejecting harassment claim), Hoppe v Hussmann, DOLIR 3-22-99 (denying benefits with tyrannical boss, sexual gestures) but see Hammerschmidt v St. Louis County, DOLIR 11-19-04 (50% PPD award, reversing denial by ALJ who still noted claimant was "kicked when he was down.")

Stressed-out Safety Manager fails to show stress was extraordinary. Claimant failed to prove benefits for work-related stress, based on his duties as an environmental safety manager that he alleged included stressful duties and long hours. Section 287.120.8 requires that a claimant must show work-related stress that is extraordinary and unusual measured by objective standards. The case is Schaffer v Litton Interconnect Technology, No. 28995 (Mo. App. SD 1-14-09)Claimant retired in 2002 on advice of a doctor who diagnosed an irregular heart beat, depression and generalized anxiety disorder.The employer offered evidence of prior medical problems and other stressors in claimant’s life including various family and personal problems, his father’s death and damage to property he owned to support expert conclusion that his symptoms were not caused by the employment.Business records refuted claimant’s assertion that he worked 80 hours a week when records showed he worked 40 hours a week and during the relevant time period took 17 weeks of vacation. Claimant’s position was specialized and structured at his own request and the employer established that that duties were not extraordinary compared to other management personnel at Litton.The court described conflicting medical testimony whether claimant’s disorder were caused by his employment, and deferred to the Commission to assess credibility of the medical experts. The court summarized evidence that claimant had issues of secondary gain and wanted to be declared disabled from work and duty compensated so he can fulfill his ambition to go fishing whenever he wants.The employer also successfully excluded from evidence a survey prepared by claimant's vocational counselor of other hazardous waste plant managers to describe job duties, and the survey concluded claimant’s job duties were extraordinary and unusual. The court found the survey details were incomplete, haphazard, and not performed in a scientific manner to provide an indicium of trustworthiness.Many of these types of cases fail based on lack of persuasive evidence that the stress is unusual, particularly when the profession itself is usually inherently stressful. The difficulty arises comparing professions when, as in this case, claimant's job is unique. The question remains whether a better prepared report from a more neutral source may meet the standard, given the other conflicting evidence about claimant's actual job duties.

Prior Pysch Renders Government Employee marginally employable. Disability claims from people in the legal business are always interesting. In this case claimant was a relatively new legal secretary for the attorney general's office and obtains an award of life-time disability benefits against the Fund due to combination of physical limitations following her ulnar and bilateral carpal tunnel releases and pre-existing mental conditions including depression and paranoia. Claimant was found marginally employable at time of accident due to prior psychiatric conditions which had resulted in a previous award of disability in California. Dr. Pro testified that claimant’s job at the time of the accident was destined to fail, based on claimant’s mental history and previous failed employment attempts. The case is Brooks v Mo Attorney General, DOLIR 4-3-09.

Psych - Pain and Anxiety From elbow injury
The commission affirmed an award of permanent total disability benefits against the second injury fund for an iron worker who strained his elbow, had an injection, and had numerous prior injuries including disablement to the same arm. The administrative law judge found the elbow injury represented 15% disability, which is minimum threshold to pursue Fund benefits. Claimant's psychiatric expert concluded the elbow injury which may have aggravated arthritis caused various pain and anxiety disorders resulting in additional disability. The vocational experts concurred the claimant was unemployable in the open labor market. Smithly v McCarthy Bros., DOLIR 6-30-11.
ALJ Vacca
Atty: Sievers
Experts: Volarich, England Gonzalez, Browing, Stillings

Depression from breast surgery
Claimant alleged as a result of working in a cold and wet production line cutting and sorting parts in a chicken factory she developed purple lesions on her left breast, resulting in a mastectomy and post-traumatic stress disorder. Her expert testified in a claim solely against the second injury fund that the 37-year woman could never work again as a result of mental problems following her work injury and pre-existing psychiatric conditions including schizophrenia and bi-polar disorder. The Commission case is Tia Galloway v Petit Jean Poultry, DOLIR 7-29-1
Claimant's employer and its carrier Liberty Mutual settled on the day of the hearing for 45% BAW. Claimant lost her claim against the second injury fund, as she failed to prove that she had ever sustained a compensable injury.

Claimant states the cold made her itchy, and scratching created a portal for MRSA infection. The commission denied benefits, affirming an award of Judge Mahon, who found claimant's expert Dr. Belz lacked credibility because his theory that claimant's exposure caused chilbain's, a skin disorder, was never corroborated by any of the medical records, and her duration of exposure to cold and wet work areas and regularly changing clothes after her shift made it unlikely for her to ever develop chilbain's. Claimant denies any memory of her medical treatment including treatment for necrotizing fasciitis, MRSA, and air evacuation to undergo an emergent mastectomy. Claimant's expert testified that claimant could never work again because of prior psychiatric conditions (which required treatment when she was incarcerated for illegal drug activity) and post-accident anxiety about germs and PTSD.

ALJ: Mahon
Treaters: Shoemaker, Fulnecky
Experts: Belz, Parmet, Franks
Atty: Alberhasky, Harris

Prior emotional trials defeats causation
Claimant failed to prove disability from either his shoulder surgery or depression flowed from using a slide hammer at work. The administrative law judge found an orthopedist more persuasive that the motions claimant described were unlikely to cause such a trauma, and that claimant's expert attempted to 'graft' a psychological claim. Claimant had a long history of many "emotional trials" including being taunted for his loss of vision in one eye, identity theft and financial distress. Doran v Curators of the Univ. of MO., DOLIR 12-3-10.

ALJ Herschel
Experts: Volarich, Markway, Haupt, Wolfgram

Minor award for depression
Claimant may have major depression with psychotic episodes impairing his ability to work, but he failed to prove he was permanently and totally disabled from being struck while slowly backing up his car in a company parking lot while reporting to work in 1995. Claimant denied employment after 1997. Claimant's treating neurosurgeon for 3 years after the accident concluded the accident appeared to be trivial and claimant's psychotic episodes were likely genetic. The accuracy of claimant's testimony was considered an issue of "considerable doubt." Medical evidence failed to convince the administrative law judge that claimant’s “whiplash” injury exacerbated his pre-existing paranoia or caused psychotic episodes. Claimant previously had changed employment because of paranoid episodes and had other stressors unrelated to his job.

The Commission awarded $366.70, after subrogating a third-party settlement. Giese v TWA, DOLIR 12-7-10.

ALJ Siedlik
Experts: Logan, Hughes, Cantrell
Treater: Hanson

Psychic injury from assault
Claimant failed to prove permanent and total disability when a computer trainer unexpectedly grabbed her breast while she was walking to the door, causing an acute stress reaction and panic attack. Claimant treated for insomnia and problems with concentration. Claimant sustained no physical injury. Claimant failed to prove her psychiatric impairment or her inability to work after the June 2008 event flowed from the incident and not from pre-existing psychiatric conditions.
The administrative law judge found claimant's expert less credible since he was not a psychiatrist and that he did not fully explain the role of claimant's prior medical conditions in his assessment of causation. Claimant had treated for many years and a psychiatric record noted before the accident that her world was "falling apart." Claimant had been on disability leave previously for psychiatric reasons and records noted prior symptoms of stress, fatigue, mood swings, insomnia, vertigo, heart pounding and difficulty breathing. The administrative law judge noted that claimant's breast had been covered by business attire, that she was a 44 year old married woman with children, and had previously rejected the trainer earlier when he tried to hug her. Police were called to the scene and the trainer was prosecuted.

The commission had previously awarded disability in Jones v Washington University, in a similar case in which a nurse developed panic attacks after a dialysis patient put his hand up the claimant's blouse and grabbed her breast during a treatment session.

Claimant was struck by a prisoner and alleges memory loss and headaches. ALJ Percy finds claimant may have sustained additional healing after her initial rating exam by Dr. Woiteshek, and adopts findings of Dr. Puricelli who performed a subsequent exam and concluded the memory loss and headaches were unrelated. Claimant's medical history is significant for a previous head trauma a few months earlier. Nesbitt v City of St. Louis, DOLIR 3-5-10.

Attorney wins little in lien fight

2009-09-23T14:25:00.001-07:00

Rader v Amerisafe, DOLIR 9-23-09, is a case involving a fight between two attorneys over their lien, and the Commission affirmed an award of $875 to Gorden Nielson based on quantum meruit out of a $35,000 settlement. Nielson testified he spent 13 1/2 hours alone reviewing medical records alone but he kept no time log, and he even continued to negotiate four days after he was discharged by his client.