Commission affirms repetitive trauma award for arthritic employee.

 Sherry Neighbors v. The Salvation Army

21-029047  D/A 2-11-2021

The Commission affirms a PPD award 2-1 of more than $70,000 for a 60 year old former employee with arthritis who claims repeittive trauma disorder to both shoulders and both feet based on testimony of 'unrelenting' work for 15 years standing on concrete 40 hours a week, lifting items, and putting clothes on racks and using vibrating equipment.  A dissent felt she exaggerated her job duties.  

She claims she quit when she could no longer lift her arms.  The ALJ admitted non-peer reviewed magazines and noted a "negative interaction" between the expert and the doctor.  The ALJ found the events compensable whether they caused arthritis or aggravated it.  

ALJ Fowler

Atty: McKay, Smith

Experts:  Charapata, Frevert, Lingenfelter, Hallaron

Commission stacks prior CLSS to reach SIF threshold

 Brian White v Missouri American Water

20-018403    dec. 10-1-2024

The Fund appealed a PTD award against it on a primary 12.5% settlement and in which the ALJ allowed some of claimant's 10 prior settlements to combine to reach threshold levels.  

Claimant is 58 years old and treated essentially for a chest strain which the treating doctor felt represented 5% new disablity imposed on prior conditions.  Claimant relied upon opinions of Dr. Volarich and Gonzalez who found claimant total combo with prior back and  shoulder conditions.    

The Commisision rejected the Fund argument that an occupational disease was not a qualifying condition and found multiple successive conditions to the same body part (back) could combine.  

Atty:  Gregory, Kincaide

ALJ Keaveny 

Experts, Volarich,  Gonzalez

Commission denies PTD against fund on issue whether priors qualify

 Jeremy Jarvis v Monsanto 

Inj. No. 15-098439  

decision:  Oct 3, 2024 

The Commission affirms a denial of SIF benefits on a failure to prove a prior arm condition was a qualifying prior disablity.  The second injury fund indicated claimant was bound by a prior settlement amount, and the Commission concluded that a prior settlement amount was relevant but not controlling like a binding judgment.    

A dissent found that other qualifying disability supported an award regardless of the history of a fracture adn noted vocational opinon that claimant's movements would make him appear disabled to a potential employer.  

The ALJ noted two separate issues whether claimant was totally disabled and whether the Fund had liability and that the conclusion, although listed in alternate scenarios, included nonqualifying disaiblity. The vocational expert indicated the right leg alone might render claimant totally disabled due to a need to accomodate pain control.  

The 45 year old ironworker sought PTD benefits against the SIF after settling with the employer and relied upon two prior cases, one in which the fund had paid benefits.  The ALJ found a leg injury at 2011 by itself did not meet the minimum threshold but become more disabling due to a subsequent teatment.    The ALJ, however, found claimant's prior left wrist injury did not make threshold and that Dr. Volarich's efforts to make the PPD a bigger number were not persuasive.  

The ALJ left unresolved whether a loading factor paid by the employer  could be considered.  

   

ALJ  Boresi

Atty:  Knepper,  Campbell

Experts:  Volarich, Lalk 

Court awards 7 years in unpaid Schoemehl benefits to surviving widow

 Amie Elsworth v Wayne County

Case No.  SD 37237  (Aug 20, 2024)

The court of appeals affirmed an entry of judgment on a final award awardng ongoing weekly benefits and back benefits since 2017.  

The ALJ made a determination of PTD following a catastrophic injury and claimant died while the appeal was pending.  The surviving wife filed a motion for Schoemehl benefits related to the 2007 accident.  The Court noted the Commisison "wittingingly or unwittingly" had made factual determinations to support benefits to the surviving wife in 2017 and the employer's decision to cut off benefits was erroneous.  It found the Commission committed harmless error by claiming it was not addressing Schoemehl.  

Commission everses PTD award against Fund for nonqualifying priors

 Sandy Koehn v Accessibility Remodeling

Inj. No. 20-078387

release  date:  9 19 2024  

The Commission reverses a PTD award against the second injury fund and notes the ALJ erred by including non qualifying prior disabilities below threshold.  

The Comission noted claimant's expert attempted to unbundle a prior settlement allocated to joint body parts, and found the opinon of allocation  inconsistent with other medical records and prior deposition testimony.  The Commission criticized the expert for legal opinions about compensability outside his expertise of opinions with a reasonable degree of medical certainty and that claimant could not rely upon an Oregon settlement when fund liablity was predicated on finding of compensaiblity of prior settlements as defined by compensable injuries and accidents under Missouri law.  

ALJ Rebman had awarded PTD to the 59 year old claimant who settled with the employer for 30% for an operated shoulder and relied upon opinions of Dr. Koprivica for a PTD award against the Fund for the back, other shoulder and hand.  The ALJ noted the expert did excluded nonqualifying priors from consideration. 

Employee fails to prove Covid contracted from work from other infected co-workers

 Gordon Johnson v RBX Transportation 

Inj. No.  20-094915  D/A  Oct 8, 2020

In a case of first impression, The Commission affirms a denial of a claim of injury by occupational disease (Covid), and denies the Fund's motion to dismiss for briefing deficiencies, but supports the denial of benefits as their claim is deriviative.  Claimant's argument was fundamentally that other people had Covid at work so he must have contracted it there because he didn't go out in public away from work. 

Claimant alleges complications after a covid diagnosis resulting in hospitalization, pneumonia, use of a ventilator, need for a trach, and ultimatley released and dependent on supplemental oxygen.  The ratings ranged from 25% (Dr. Cantrell) to PTD (Koprivica).  Claimant worked as a driver and night dispatcher and a co-worker who crossed paths for 15 minutes tested positive for Covid around the same time. Prior conditions included poorly controlled diabetes.  Testimony was conflicting how often workers wore masks. Claimant asserted minimal contact in the community and asserted his food was delivered.

The ALJ found in Oct. 2020 that covid was an ordinary disease of life.  The judge rejected the claimant's argument that calling it a novel virus did not keep it from being an ordianry virus.  The ALJ found insufficient evidence that the disease arose out of employment or in course of employment.  Claimant failed to show anything inherent in the risk of the job, unlike a job that exposed him to dealing with members of the general public on a daily basis.  Claimant argued he had greater exposure at work than at home but the ALJ found that comparison was not a relevant statutory standard.  Evidence of simultaenous symptoms did not show a risk source of exposure to someone symptomatic before he developed the disease. 

Claimant advanced a theory that he was exposed to someone sick with cold symptoms but lacked evidence to show that exposure was someone who had covid.  Second, evidence of other people who had Covid at the same time or after claimant did not show a risk source.  A doctor could not identify who had it first when two people presented with symptoms together.  

The ALJ identified multiple other states that have rejected Covid claims. 

Employer prevails in exclusive remedy defense

 Jonathan Montgomery v Coreslab Structures

WD 89610

Release Date:  Aug 27, 2024

The court of appeals affirms a summary judgement that the plaintiff's claim for damages belongs in workers comp and not cvil court because he was a statutory employee pursuant to 287.140 and periodic work within the usual business did not defeat exclusive remedy. 

Claimant was loading a vehicle and struck by a Coreslab employee resulting in injuries to his back and knee.  He was working as an independent contractor for  Becker, which had a contract to deliver product to Coreslab..  Coreslab asserted as a defense to the tort claim that claimant was a statutory employee.  

The case turns on a minor procedural issue and finds a core issue on appeal of usual business  was not denied in the summary judgement motion.  Claimant asserts since he performed delivery work that was periodic it was not part of the Coreslab "usual" business to be be considered a statutory employee, but concedes other elements of the definition.  Coreslab stated in its motion that moving slabs was routinely done on a regular basis.   The court noted it can only review the summary judgment motion record and the record showed no procedural denial this assertion or evidentiary facts that would support a denial and considered the position "baffling" and "facially incongruent"  because there was no affidavit to explain why the statement of fact  why Montgomery  could not admit or deny the assertion.   

The court went further and decided on the merits that the episodic performance of the work was not dispositive if the work was performed within the essential business.