Thursday, April 15, 2021

Commission applies 30 hour rule for comp rate

 Juanita Kurbusky v Independent In Home Service

Release Date:  April 7, 2021  (August 2012 accident date)

Venue:  Texas County

Summary:  Commission awards 20% BAW for orthopedic injuries.  Claimant alleges she required RF ablation and injections and alleges she developed a DVT/PE due to inactivity.  The Commission found the ALJ erred to use 40 hours a week to set compensation rate for a part-time employee.  

The case considered for purposes of a second injury fund award a laundry list of medical condition including a  knee "locking up" at age 12 (claimant is 60).  Claimant was not felt to be PTD.    

Cast:

Elmer, ALJ 

Edelman, atty

Musick, atty

Byrd, atty

Poetz

Weimholt

Lennard

Swarringin



Commission affirms 2-1 PTD for back surgery

 Kevin Willems v Upland Trucking

Release Date 4  8 2021

Venue:  Jackson County

Summary: Commission affirms PTD award for back injury treated with surgery and spinal cord stimulator.  Claimant had a 1980s back surgery also involving the lumbar spine.  Claimant alleges he needed to lie down at unpredictable intervals and required narcotics  due to back pain.  A dissent felt claimant's capacity to sell real estate was inconsistent with his claim of PTD. 

Second injury fund offered no evidence to support its defense that claimant had sought benefits in another state. 287.220(12). 

Cast:

Siedlik

Stang, atty

Lobdell, atty

Koprivica

Logan (psych)

Fevurly

Drieling

Cordray


Commission rejects PTD claim for knee on knee.

 William Rector v Consentino's Inc.

Release Date:  April 14, 2021 (accident date Aug 2015). 

Venue:  Jackson County

Summary:  Commission affirms PPD award for injuries to knee while twisting, and additional body parts (neck and shoulder) allegedly hurt from lifting dumbbells while recovering from the knee.  The commission found claimant did not establish SIF liability based on 2014 amendments because the conditions were not qualified conditions and the only qualifying condition, a knee, did not meet the statutory minimum amount.  The experts offered no evidence on aggravation.  The ALJ noted claimant's TKR did not support last accident alone when claimant had two prior knee surgeries and there was not a material change in medical restrictions following the last procedure.  Dr. Stuckmeyer was found less credible that his conclusion claimant needed to "lie down" was inconsistent with other findings, and his alternate opinion about PTD were less persuasive.  

The ALJ found claimant not credible regarding PTD claim noted video that claimant demonstrated claimant's capacity to sit at a bar for hours with his friends and appeared to be able to drive without obvious limitations but awarded him nearly $124,000 in benefits and open medical.  

A dissent would have found claimant to be PTD based on the medical and vocational opinions.  

Inj. No.  15-083623

Cast;

Cain, AJ

McKay, atty 

Stuckmeyer

Dreiling 

Krempec 

Cordray


Tuesday, April 6, 2021

Statutory employment relationship in 287.040.2 prevents tort claim

State ex rel Beutler Inc. dba George J Shaw Construction et al v Hon. Sandra Midkiff

Release date:   April 6, 2021 (Mo Supreme Court)  (2016 date of accident)

Summary:  McArthur was injured on a construction site and sues in tort and subcontractors  asserted statutory employment defense under 287.040.2.  The court made a preliminary writ permanent and reversed the circuit court which would have allowed the action to go forward.  the Supreme Court in a 6-0 sustained the writ of mandamus pursued by   Shaw and Henderson as they were immune from liability in the underlying negligence claim. 

Claimant alleged an injury when his head hit the ceiling of a cab, which he asserts was caused when Henderson allegedly dumped an "oversized" load of excavated material in the truck.  

The circuit court found an exception that a defendant was a for-hire motor carrier operating within a section 390.020 commercial zone.  The court found 287.040.4 provided an exception only when the claimant is in a relationship subject to the 390.020 provision and not a relationship between other parties  upstream.  The court notes it is "inescapable" that the statutory employment chain applies to subcontractors and subcontractors of subcontractors.  

The court rejected a constitutional challenged that 287.040.2 waives a constitutional right to a jury to determine the rights involving third parties:  "the exclusive remedy provision is not limited to claims against direct employers ..."

Thursday, April 1, 2021

Claimant fails to prove accident that he hit his head on a truck and caused brain damage

Mark Hundley v Conagra

Release Date:  3/31/2021  (Accident date:  2014)

Venue:  Boone County

Plot Summary:  Commission affirms a denial of a claim based on a defense of failure to prove accident when claimant alleges he hit his head when he was a restrained driver wearing a hard hat and his seat suddenly moved forward causing him to his his head.  

A defense expert contends there was no evidence he sustained a head injury and complaints  of unsteadiness more likely could be attributed to non-traumatic diabetic neuropathy and left visual defect was more likely due to diabetic condition than a brain injury. Claimant's expert based opinions on a flawed medical history that the hard hat was shattered.  

A dissent felt claimant established an accident but failed to prove injury by accident due to equivocal medical opinion about the cause of any traumatic brain injury. 


14-094684 

Cast

Young, ALJ 

Netemeyer, atty

Neumeyer, atty

Shoemaker

Shah

Silverman

Peeples


Wednesday, March 31, 2021

Court finds a failure of proof when expert did not consider certain duties as alleged risk factors

 Jonathan Mirfasihi v Honeywell Federal Mfg.

Release Date:  3/30/2021

Venue:  Western District

Summary:  Court affirms a denial based on a failure in the burden of proof (persuasion) whether claimant's thumb triggering and need for surgery  arose as an injury by occupational disease from "office work", opening doors, carrying a suitcase or  using his thumb to operate a keyboard which "aggravated' his arthritis.  The employer disputed the claim based on expert opinion claimant's condition most likely arose from osteoarthritis.

The Commission had reversed an award of benefits from the ALJ  Fowler who awarded about $22,000 in benefits or  10% of the hand plus medical bills.  The claimant attributed the cause of his conditions to some job activities which had not been addressed by his expert.  The Court found the commission did not "mis-state" the record when it concluded there was no expert opinion to attribute the condition to opening doors and carrying a briefcase. The determination of a risk factor required an expert opinion and not speculation of a lay person such as claimant.  

The Court noted it "struggled" to understand the argument on appeal..  The Commission considered whether the osteoarthritis caused on contributed to the work activities.  It found claimant had to show the work conditions caused the OA or trigger thumb to establish an accident or occupational disease, and proof that the OA caused the triggering was not enough.  Testimony that some activities "could" be a cause did not establish that the work activities in question were a cause.  The court noted claimant does not 'win' a case on causation merely because the employer cannot identify an equally appealing alternative cause.

The defense had raised an issue at the Commission regarding a right of reimbursement for a missed IME appointment when claimant was at fault for failure to attend.  The claimant appealed the denial and the issue was not raised in a cross-appeal 


Friday, March 26, 2021

Commission denies benefits for severe degenerative shoulder

Keavin Edwards v Dairy Farmers of America

Release date:  3/23/2021  (Jan 2017 accident) 

Venue:  Texas County

Plot summary:   Claimant moved a 130-pound object and reported acute shoulder pain.  Claimant asserts his advanced arthritis was asymptomatic. The issue was whether his joint replacement was related to prior arthritis or a new accident.  Claimant's expert contends work duties for 15 years after a prior shoulder repair contributed to aggravating arthritis and an acute tear of the cuff.  


Cast

Nelson, atty

Lutz, atty

Mullins

Lennard

Putnam

Comments:  ALJ Mahon found a failure to prove injury by accident (burden of persuasion) when his expert was less credible whether there was any acute cuff tear.  Imaging 2 weeks post accident identified severe degenerative findings.  Claimant's medical history prior to joint replacement was more consistent with progressive condition unrelated to a specific work injury.  The judge distinguished Tillotson where the parties agreed the primarily injury had caused a need for treatment.  The Commission notes 0% allocation to the accident, a history of progressive degenerative condition.  The Commission does not reconcile the use of the word "aggravation."