No remedy in Tort Victim's Comp Fund for unpaid Comp award

 Ellis v Tort Victim's Compensation Fund 

WD 87443    April 1, 2025

The Court affirmed the Commission's denial of remedy under 537.675 as an uncompensated tort vicitm when claimant was not within the terms of the statute limiting eligible claims for personal injury or wrongful death.  

Claimant obtained an award through an ALJ for about $9,000 related to a heat stroke injury that occurred while working for an ininsured employer.  Claimant sought benefits under the tort fund when the employer did not pay the award.   The court noted there were available remedies to attempt to collect an unpaid judgment pursuant to 287.500. 

Commission dismisses named insurer from hardship award

 Paul Reboul v Richards Welding and/or Monty Richards

Inj. No. 24-019220

Release date  March 18, 2024

Claimant worked as a welder and injured his shoulder handling a heavy pipe and underwent shoulder surgery.  No medical bills were paid by the employer but claimant recieved $15,000 in temporary benefits.  In a hardshp hearing for further benefits, no one appeared for the employer/or alleged insurer.

The Commission reversed a finding that the named carier  CompSource carried insurance for the employer at the time of the accident, noting the lack of a cetification of insurance offered by either party and no credible or persuasive evidence to suport coverage.  Comp Source argued due process violations due to lack of notice and that claimant was not a covered employee due to lack of jurisdiction from an out of state injury.  The ALJ had found claimant was a 'covered' employee under Missouri law and the employer was both Richards Welding (apparently a disolved corp) and Monty Richards (the owner).   

The Commisison affirmed an award against the uninsured employer for future medical aid (no back medical was requested) and 15 weeks of unpaid TTD. The supporting documents suggest the corporation which employed claimant was dissolved due to the failure to pay taxes.  

Atty - Platter (employee) Munsell (employer, post-award)

Court denies SIF total noting it was regrettable no one preserved the bigger issue

 Jerry Thomas v Collns & Hermann and Second Injury Fund

No. ED 112795

Filed March 18, 225

The Court of Appeals affirms the Commission's denial of SIF fund benefits, which had reversed a PTD award by the ALJ.   2024 MO WCLR LEXIS 20 (ALJ Schaefer). 

The Court finds the Commission properly found that claimant failed to demonstrate his prior knee injury was a compensable injury as defined by 287.020.  The experts improperly included the non-qualifying condition in their PTD opinion.  Claimant failed to preserve his third error that he was left without a remedy if he could not recovery against the Fund.

Claimant had a prior right knee injury that required surgical repair from an injury in another state in 1993.  In 1994 he injured his left knee  in Missouri which resulted in a settlement of 25% fo the knee with a loading factor.  

Claimant had a shoulder injury in 2015 which required surgical repair.  Claimant obtained expert opinion from a Dr. "V" that he had a combo due to work restrictions of the shoudler and the knee.  A Dr. "S" assigned permanency for psychiatric conditions resulting from the shoudler.  A Dr. "D.G." opined clailant was a total due to a comibnation.  The Fund relied upon a psych restrictions alone rendered claimant unemployable on h baiss of the last accident.

The ALJ concluded claimant's knee disaiblity was greater than his settled amounts becuase the conditions because "worse" over time.  the Commisson excluded claimant's out of state injury did not count nor was  was it compensable under 287,.020 as defined. 

The court addressed the merits of the appeal but noted cliaman's points did not articulate the reasons for reversible error nor did the SIF move to dismiss the appeal.   

The Court found SIF interpretation under 287.020 too narrow and did not limit recoveries only to misosuri accident.  The Court found claimant failed to demonstrate prevailing facotr or put evidnece that it came from a hazard or risk unrelated to employment between the work activity an the injury other than occurring on property, which was insufficient.  

Regarding the threshold issue of 50 weeks, the commisison did not reach this issue and the court considered it immaterial for its deicison.

Claimant argued the employer would be liable if claimant was totally disabled and there was no recovery against the Fund.  The court found the alleged point was not preserved.  Judge Hess indicated it was 'regrettable' the question was not properly before the court. 

 The opinion hides the identity of the experts, although anyone in comp in Missouri should have a pretty good idea who is Dr. "V" and Dr. "S".

Atty:  Sievers, Voigt, Frazier

 

Court awards medical bills when claimant demanded care

 Erwin v Midway Arms

2025 Mo. App. Lexis 131

release date:  March 4, 2025

The Court of appeals reverses the Commmission based on a misapplication of law and awards medical bills for a surgery which the employer's expert eventually concluded was reasonable including the need for future medical for psych and orthopedic conditions. 

Employee declined employer's request to provide records and furnished them only after claimant underwent surgery.  The court found claimant had made requests for medical care, and had no duty in its aburden of production of medical records or reports to refute an earlier finding of MMI to trigger a further duty to provide care. The case is distinguishable in which claimant did not provide any notice.   

The Commission reversed an award of nearly $60,000 in sanctions against the employer noting employer relied upon a medical, even if it was not adopted by the Commission.  The Court refused to award sanctions based on the finding of  the Commission that both sides acted unreasonably by the employer not seeking further medical opinion and the claimant withholding medical records.

 

Commission affirms denial that surgery flowed from injury

 Robert Byers v New Prime Inc.

Inj. No. 10-103528 

Release Date;  Feb. 20, 2025.

Employer disputed surgery 10 years post accident flowed from the accident  and sought to recover  benefits of 19 weeks of overpaid TTD benefits after claimant reached MMI.  The Commisson affirms an award of 20% BAW  without separate opinion. 

Claimant alleged 35% PPD from a neck fusion and PPD from psychiatric injury and concluded claimant was PTD. Dr. Lennard rates 15% disability and noted inconsistent behavior on video.  Dr. Halfaker felt claimant ha a somatic disorder and no psychiatric injury from the accident.  The ALJ found claimant lacked credibility.

Claimant was on his third atorney at the time of hearing.

 

Commission finds new accident aggravated prior shoulder condition.

 Marc Moore v TForce Freight Inc.

Inj. No.  23-026970

Release Date:  2-4-2025

Venue:  St. Charles (Kohner, ALJ)

The Commission affirmed in a 2-1 award a temporary award with nearly $125,000 in back benefits for unpaid medical and TTD  related to a shoulder injury in an auto collision with some limited damage to the vehicles.    

Dr. Duerr performed shoulder surgery and related to need for surgery to the accident due to acute inflamation on more chronic findings.    Dr. Farley concluded the mechanism of the accident would not cause findings resulting in the need for surgery.  The ALJ noted the history of no prior symtoms supported Dr. Duerr's causation opinion, and described Dr. Farley's analysis on the mechanism of the collision but noted he could not give an opinion with a reasonable degree of biomechanical certainty.   

Claimant stated at the time of the April 2024 hearing he had one remaining appointment within two weeks but did not anticpate further care.  No future medical was awarded.   The issue of PPD was left open for later determination.  

Vietnam vet awarded PTD with 'flare up' of PTSD

 Peter Lococo v  Lou Fusz (settled)

Inj. No.  08-116135 

venue:  St. Louis (Keaveny)

Release Date:  Feb. 4, 2025

The Commission affirms an award of PTD against the second injury fund, based on a combination of back and neck strain injuries from falling on black ice, de minimus PTSD  "aggravation" and prior psych conditions, primarily PTSD.

The employer settled the claim for 1% psych based on Dr. Stillings' rating.   His expert asserted 50% BAW disability that the accident triggered Vietnam-era PTSD and mental anguish from his youth as a helicopter door gunner  and developed into unexplained and unimaginable limitations.  The ALJ found no support for the expert's diagnosis of traumatic brain injury as that was a neurologic diagnosis and no neurologic exam was performed.    

The SIF award was based on ratings for prior psych conditions ranged 47.5 to 50%, despite claimant's history that he worked 60 hours a week but still had issues.  

The employer settled the soft tissue claims for the neck and back for a total of 35% BAW.