Court rescues non-qualifying PTD claim to use "load" to reach statutory theshold

 Ryan v State (Second Injury Fund)  

2024 MO App. Lexis 861

release Date:  Nov. 26, 2024

The Court reverses the Commission's denial of PTD benefits aganst the second injury turning on definitions of "compensable injury" and "direct result"  and finds enhanced disablity or load to a prior shoulder disability settlement  is also a direct result of the injury to meet minimum 50 week thresholds for fund liability and adds a load to a piror amount of 46.4 weeks to exceed the threshold.  

There is no dispute that claimant was PTD due to primary and pre-existing. The Court found the commission erred just to consider the settlement against the employer for a prior shoulder (below threshold) and not to include the load factor in the settlement with the fund.  

The Court addressed the issue of "direct result" but notes the issue was briefed but neither party preserved error when the Commission exceeded its powers to address it when the issue had not been preserved on appeal.  

ALJ Zerrer originally issued an award n the  2011 claim.   He awarded 20% of a shoulder and found a 15% load.  In the 2015 claim he had PPD to the shoulder and the neck.  Claimant argues the 15% load should be added to the primary settlement with the employer.  

A dissent felt claimant was disqualified using strict construction when his expert considering non-qualifying disabilities and did not provide an alternate conclusion by excluding them.   

Atty: Wood, Fournier

ALJ  Tilley  

Art world has gone bananas.

 Then there is the story about the banana and the duct tape.

Those comp attorneys who do not follow the art world may have missed the recent BBC story, “Duct-taped banana artwork sells for $6.2m in NYC.”

Cattelan’s artwork of banana duct-taped to a wall reached 6.2 million at Sotheby’s. The “art” was introduced to the public in 2019.  The banana on the wall has gone on a world tour with instructions on how to replace the banana when it rots. A Chinese crypto guy bought it fighting off five other bidders.

The story raises important points to the comp practitioner.

First, there are those cases in comp world that are not like all the other cases in comp world.  Fact patterns may be so bizarre to sound apocryphal, even in the metaverse.   This makes it harder to predict outcomes, increases risk of mis-valuation, and triggers a lot of soul searching and buyer’s regret whether the apple duct taped to the wall is not worth as much as the jalapeno duct taped to the wall. 

Second, some people see value in things where others do not.  There are those people who believe cases are worth zillions if a rotting banana is worth millions.   This explains the thousands of things in people’s basements that have been held for years because they might be worth something one day.  Somtimes a banana is just a banana, and like a bad case, has a diminishing value over time.  

Third, there are apparently some people in the art world who can impulsively spend six million on a banana and sleep at night thinking they have had a good day.  There may be five other bidders for the banana who sleep even better. In the claims world, the spending profile of the average adjustor is a lot different than a Chinese crypo king, dollars are more closely watched, and burden of proof usually requires more than throwing something against the wall to see what sticks.

There is always a market if someone can find a willing buyer.    Injured workers waiting to settle their cases might start taping fruit to the wall and start the bidding on e-bay. It might even sell better than the old collections of pet rocks and mood rings and no one has to wait on medicare set asides.  

 

Commission affirms PPD award against SIF in pre-reform case (17 years post-accident).

 In a SIF case that is now 17-years old,  the Commission affirms a denial of PTD SIF benefits  based on prior conditions to the knee, shoulder or neuropathy when the expert's opinions about prior limitations were inconsistent with claimant's prior high level function, claimant had a good recovery from the primary,  and the expert did not assess claimant's condition at the time of the accident but his vocational status 10 years later.

The commission affirmed an award of partial benefits against the SIF  (old law) noting primary injuries to both arms (carpal and cubital) combined with priors of  20%, 15%, and 10% of the cervical, thoracic and lumbar spine.  

Dennis Eldridge v Zoltek Co. (SIF only)

Inj  No.  07-077605  (dec.  Nov. 21, 2024) 

Venue:  St. Charles County  (ALJ Gilliam)

Atty:  Parker, Kellerman   

Court of Appeals finds broadly-phrased application for review complied with notice requirements

The commisison found PTD liaiblity against the second injury fund, reversing a finding of PTD against the employer.   The SIF, and claimant, objected and argued the employers application for review was insufficient.  

The court  of appeals affirmed the Commission and found the employer provided sufficient detail of alleged error, despite criticism from the Commission that the notice "certainly could be specific"  alleging broad error that the ALJ misapplied the law, the award was against the overwhelming evidence and there was error relying upon findings of impairment.   It noted  case history of the commisson rejecting deficient applications but no cases in which  the court of appeals reversed a finding when the Commission found the applicaton was sufficient.  

The court declined to address whether the AFR now required strict construction after reform, and found the notice sufficient even applying strict construction.

Emerson v Prestressed Casting Co., SD 38434  (Mo. App. 2024) ( decided Nov. 19, 2024)  

Claimant fails to prove back injury resulted in need for surgery

 Neitzert v New Bloomfield

Release Date Oct 30 2024

Venue:  Callaway County

The Commission 2-1 affirms an award of 15% BAW for a back strain while trying to move a drill press and found claimant's need for surgery flowed from subsequent degenerative conditions and not from the work injury based on the expert opinion of Dr. Chabot.    A dissent asserted because claimant denied priors, that all benefits including PTD flowed from her admitted back strain and escalated years later into a need for surgery.

 ALJ Farmer

Commission flips denial of future medical on arthritic knee

 Terry Tedder v City of St. Louis 

20-060957

Claimant injured his knee and proved a need for total knee replacement for his arthritic knee, reversing the finding of  the ALJ who awarded 35% of the knee but denied future medical. 

Dr. Volarich indicated claimant would "likely" require a total knee in the futrure.  

Dr. Hawk indicated that claimant's work related meniscectomy made it more likely for him to require a total knee. 

Dr. Krause concluded any need for total knee flowed from prior OA, and that any contribution from work was "slight."

The Commission found the need for future treatent flowed from the work accident, even if the work accident contributed marginally to the need for care, and that Dr. Krause may have used a reversible  prevailing factor standard.   

The ALJ noted the effects of the knee were "unusally" severe with constant fear of the knee giving out. The ALJ noted claimant had unique credibility as the treating physician who observed the knee at the time of surgery to concude much of claimant's problem was degenerative. A dissent would have affirmed the denial of future medical. 

  

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