Thursday, September 15, 2022

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

 Larry Obermann v BRM

Release date:  Sept. 13, 2022

Venue:  Cape Girardeau

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

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

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

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

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

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

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

ALJ Young

Chris Weiss

Keyla Rhoades

Experts:  Solman , Mall, Berkin Volarich 

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


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

Friday, June 17, 2022

Claimant who delayed case with unreasonable conduct denied fees and costs

 Donnell v Tran State Airlines

Release Date:  June 14, 2022

Venue: Eastern  ED 110126

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

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

Odenwald, Hon.

Hoffman, atty

Lecinski, atty 

Wright, atty (at Ct of Appeals)

Levy, atty (at DOLIR)

Tuesday, June 14, 2022

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

 Sherry Edwards v FedEx Ground

Release Date:  June 9, 2022

Venue:  Jackson County

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

Inj.  No.  17-102900.

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





Monday, January 31, 2022

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

 Jamie Overstreeet v Tamko Building

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

Venue:  Southern District  

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

No SD 37171

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

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

Friday, November 19, 2021

Commission totals claimant on 3rd shoulder case alone

 Randy Skaggs v Mo DOT 

Release Date:  11 19 2021

Venue:  Jackson County

Summary:  Claimant  injured his right shoulder when he moved a weed eater and developed a recurrent cuff tear imposed on two previous shoulder cases that caused permanent injuries.  He underwent surgical repair including a capsular reconstruction.  He reports daily pain and states the injury caused a career ending injury (age 59).  He was assigned PPD related to both a DVT complication and shoulder, atributed to new and prior conditions.  Prior settlements on the shoulder represented 34.5% of the shoulder.  The Commission affirmed last accident alone PTD liability. 

Comments:  The ALJ noted work restrictions following the last accident were determinative on the issue of PTD. The ALJ regarded prior settlements (discussed separately) do not meet 50 week threshold for fund liaiblity.   The Commission wrote a separate opinion noting the ALJ incorrectly reported the employer stipulated to accident (stipulation was for "incident") and made comments that were "confusing and inconsistent."  

The Commission notes when disaiblity includes qualifying and nonqualifying prior disaiblity there is no fund liability, and stated it did not regard the court of appeals decision Klecka as controlling authority becuase it was on appeal to the Supreme Court.  A concurring opinion qualified opinon that the statute required consideration of nonqualifying condition.  


Rebman, ALJ





Wednesday, November 10, 2021

Commission finds no impeachment value on remote prior conviction and "poor memory" testimony

 Christopher Carewicz v Playcraft Pontoon

Release Date:  Nov 4, 2021  (2014 accident)

Venue:  Pulaski

Summary:  The Commission affirms PPD award for a shoulder for biceps and tendon tears that required surgical repair and rejects PTD claim including additional spinal claims. 

Notes:  The ALJ finds claimant undermined his case by inconsistent statements, mistatements and felony conviction.  The ALJ admitted probation revocation records over objection.  The ALJ found claimant's contemporaneous records do not support cervical thoracic and lumbar injuries and rejected his contention for a full set of dental implants.  The ALJ noted claimant did not prove PTD, and noted no disfigurement would be awarded if claimant was PTD. She over-ruled the "plethora" of objections from plaintiff counsel. 

The Commission agreed with claimant to strike criminal records claiming they were not relevant when claimant admitted his prior incarceration and the judge's inference of prior drug use was not supported from those records.  The commission further notes 'poor memory' on multiple issues was "irrelevant" to the issue of the mechanism of injury and body parts injured.  The Commission agreed claimant's "propensity to exaggerate" and other factors undermined his credibility.  


Mahon, ALJ

Edelman, atty

Warner, atty

Poetz 40% shoulder, tooth loss complication of surgery 

Hinton - cervial and lumbar disc herniations

Mirkin - disc herniations

Cantrell - 8% 

Bernardi  - not related

Gonzeles - PTD 

What's it worth?

35% shoudler 

Friday, November 5, 2021

Court remands alleged PTD case for commission to consider excluded voc report

 Ottwell  (Parrish) v Treasurer of Mo.

Release Date:  11/2/2021

Venue:  ED 109447 

Summary:  Claimant appeals PPD award and asserts PTD against the Fund and asserts the Commission improperly excluded her vocational report.  The court remanded to consider the excluded report. 

Discussion:  Claimant reported CTS to Chrysler and then accepted a retirement package when the plant closed.  She underwent surgery a month before her retirement in 2009.  In 2010 she settled with her employer and then filed an amended claim against the Fund seeking PTD on the basis of pre-existing bladder and psychiatric issues.  The ALJ [Denigan] excluded the vocational report on the finding that it relied upon an inadmissible hearsay medical exam from Dr. Shuter, who was deceased and portions of Dr. Volarich's report which relied upon Lalk who relied upon Shuter and considered PTD evidence was "unverified." The Commission found claimant failed to prove the prior psychaitric conditon was disabling.  

The Court found the commission abused its discretion to exclude the report, that an expert could rely upon hearsay evidence  if it is reasonably relied upon and not merely a conduit for another expert's opinions.  The Court finds minimal references to the report, that the SIF attorney used an overbroad definition of relied upon, and that information in the "objectionable" report was present in other sources. 

Hon Odenwald notes:   "Given the record before us, we are persuaded that the  Commission’s ruling to exclude Lalk’s testimony in its entirety was clearly against the logic of  the circumstances and displayed a lack of careful, deliberate consideration."


Mogab, atty

Dresher, atty 

OtwellPatricia09-01561012-30-20.pdf (  (Commisson case)