Commission questions whether psychologist's opinion is a physician opinion to support denial of disability
Claimant failed to prove she sustained new permanent disability after having a gun put to the back of her head due to weaknesses in the opinion of her expert in a recent commission decision which affirms a denial of benefits. Fagins v DolgenCorp., 2014 Mo WCLR Lexis 77 (June 13, 2014).
The Commission disregards the opinions of the employer's expert psychologist Kennan, the only expert to actually perform any standardized testing, because the expert is a psychologist and not a physician. Section 287.190.6 provides "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty." The commission construes this provision to impose not only a burden for an employee to use a physician to prove a case but an equal burden on the employer to offer a physician's opinion to disprove the case. "We have doubts as to whether testimony from a psychologist [Kennan] is sufficient to demonstrate and certify the absence of permanent disability" based on the requirement of 287.190.6(2) that proof of disability shall be demonstrated by a physician."
Commission requires permanent condition but not a PPD rating
The Commission awarded partial benefits of 18 weeks against the Fund, reversing a denial by the ALJ that claimant failed to show evidence of a permanent disability because his expert did not provide a disability rating on the primary injury. Marcainte v Charles Jarrell Contracting Co., 2015 MO WCLR Lexis 28.
Section 287.190.6(2) provides:
"Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures. "
The Commission found "it is not necessary that physicians certify permanent disability in mathematical terms" and that a worker may establish disability with or without a rating provided there is other evidence to show the nature and extent of permanent symptoms, restrictions and/or limitations."
The case involves a career sheet metal worker who had pursued a 4th comp claim involving a back injury. He had a history of multiple back injuries, back surgeries, and prior settlement which totaled 60% disability. Claimant in 2009 bent over and felt a pain in his back and underwent several more back surgeries including fusion, drainage for an abscess, and revision for a failed fusion. He returned to work for two years but testified to unresolved symptoms in his back and leg, a neurogenic bladder, and more reliance on narcotics.
The claimant alleged he was now totally disabled when the employer laid him off work two years after his injury he was unable to find alternate employment with his permanent restrictions. Claimant obtained a vocational and forensic opinion that he was unemployable due to a combination of the primary injury and pre-existing. The Fund provided no expert opinion at all and attempted to assert that claimant 'was working' without restrictions and relied upon the absence of a rating as its defense. The employer settled the case for 35% after claimant had undergone three surgical procedures and claimant at 58 had been laid off and claimed he couldn't work anymore.
The ALJ denied SIF benefits because claimant did not offer a medical opinion stating the percentage or amount of disability that resulted from the last injury alone. The ALJ found there was no case law that allowed an ALJ to determine disability absent a medical opinion. The ALJ found claimant produced evidence that he did sustain a serious injury that his complaints were credible. The Commission concludes since the statute does not mandate a rating that a rating is not required under strict construction. The Commission found a synergistic effect of 10% and makes findings that claimant now has new left leg symptoms and new surgery at different levels compared to the prior cases. Claimant had returned for nearly 2 years without evidence of significant accommodation.
The case in many respects is a textbook PTD case involving multiple spinal surgeries at several levels which allowed the worker to return to work with continued symptoms and limitations. The Commission found this created SIF liability based on the potential to combine despite claimant's assertion that he was working. The Commission ultimately found the claimant had received more in settlements than his actual disability: he had only 30% prior disability (with 60% in settlements) and 15% new disability (less than 1/2 the 35% settlement from the employer before the hearing).
The Commission's finding of legislative intent does not address what appears to be a conflict caused by 287.210 which defines a medical report to require a rating and that a medical report without a rating is incomplete by definition and objectionable. It is unclear the legislature would intend the parties not to produce ratings when 287.210 requires parties to produce ratings from treating doctors.
What this case means is that workers in some cases may submit a case without the expense of a rating, provided the worker establishes the other criteria of 287.020. This reduces the cost to the worker and makes a case ready for hearing quicker. This should be a warning to employers there is no safe harbor until the claimant secures a rating to prosecute a case.
There may be a lot to be said to abolish ratings in Missouri because of their limited efficacy when there is no statutory standard for uniform methodology or adoption of any generally-accepted rules, such as AMA. In that respect, the decision still leaves a lot of discretion in the Commission to consider ratings they may ultimately disregard or tell parties simply not to bother.
ALJ Carlisle
Atty: Lenz
Experts: Musich, England
Treaters: Mirkin, Rutz
Commission highlights "objective" MRI findings
The Commission modified a PTD award based on intractable back pain and vocational testimony that claimant could not work due to fatigue and need to rest. The Commission noted an initial normal MRI study, medical records inconsistent with claimant's symptoms, and claimant's capacity to return to some employment. Johnson v Assoc. Electric Cooperative, 2012 Mo WCLR Lexis 27 (2-24-12)
ALJ Fischer
Experts: Volarich, England, Carr
Commission disregards FCE based on subjective pain complaints
Statutory reform in Missouri requires that objective findings trump conflicting subjective findings. When an FCE concludes claimant can work but claimant state he can't, does the FCE "objective" findings control?
In the case of Reichardt v Industrial Sheet Metal Erectors, DOLIR 11-10-11, 2011 MOWCLR 226, the 60 year old claimant appealed an award of permanent total disability benefits against the second injury fund and asserted he was unemployable because he spends 2-3 hours each day in a recliner to control his pain in part due to pre-existing conditions including prior surgeries to his neck and back. An FCE and other doctors concluded he was employable. Claimant's work-related injury installing a roof and subsequent back surgery resulted in some permanent restrictions resulting in permanent partial disability. The ALJ concluded claimant was employable, and the 287.190.6(2) required the objective findings regarding work restrictions to control over restrictions from claimant's expert based on symptoms that claimant must lie down regularly due to narcotic use and chronic pain.
The Commission disagreed. The Commission concluded the FCE is not an objective medical finding "as to pain" and there is no objective medical findings as to the "severity of pain." The Commission found no conflict on the evaluation of pain and concluded claimant was unemployable based on pain complaints, modifying the award against the SIF from permanent partial to permanent total. The Commission further rejected the reliance of the SIF's expert that a prior neck and back surgery were not disabling because claimant did not identify any prior accommodation.
The case imposes a new rule of construction which essentially nullifies 287.190.6(2). The case creates far broader discretion to consider subjective complaints of a claimant regarding his capacity to work to award benefits when claimant has medical restrictions which by themselves do not prevent employment in the open labor market. It is not clear whether the SIF presented any evidence how the functional capacity exam might limit job activities because of pain. The suggestion that the Fund (or the employer) must utilize some test other than an FCE to negate such testimony about pain leaves little realistic prospect that objective findings have any greater evidentiary weight.
ALJ Kohner
Atty: Christiansen
Experts: Lalk, Lichtenfeld, Weimholt, Gonzalez
Treaters: Kennedy, Graham
Monday, November 21, 2011
Thursday, November 17, 2011
Jurisdisdiction cases
No MO jurisdiction with no MO employment contract
The Commission denied benefits in Neese v Chrysler, Old Carco, 2014 MO WCLR Lexis 22 (March 11, 2015) involving four claims of occupational disease leading up to end of employment in 2005 and her neck surgery in 2007, affirming a denial. The Commission found that claimant failed to prove a compensable injury under 287.110 and did not show an employment contract in Missouri, and her work was not principally localized in Missouri within 13 weeks of the injury or diagnosis. Claimant had worked in Alabama but had worked in Missouri only about 3 weeks. The Commission in addition denies benefits based on lack of causation noting the experts relied upon inaccurate histories. "Both doctors rendered purely conclusory opinions in their reports, and failed to persuasively explain any causative interaction between employee's job duties in Missouri and the purported occupational disease."
ALJ Denigan
Experts: Dr. Poetz, Dr. Berkin, Dr. Cantrell
No Mo jurisdiction for KS accident (287.110)
Claimant failed to carry his burden of MO jurisdiction and the commission was free to disbelieve claims of a Missouri contract of employment by purchasing equipment in MO for a KS job. Although claimant assets the evidence was uncontested the ALJ found it to be cursory, vague and disjointed. The Commission could adopt the ALJ opinion with or without correct and did not have to produce its own award. Lopez v Martinez, 2014 Mo App. Lexis 633 (June 3, 2014).
ALJ Stokes, Lindsay
No amended award after appeal
The Commission affirmed an award of total disability benefits against the Fund, but noted an error to issue an amended award after the appeal was filed. George v Ajax, 2013 Mo WCLR Lexis 195 (Oct. 2, 2013); 2014 MO WCLR Lexis 70 (May 15, 2014)(benefits cease upon death or remarriage).
ALJ Denigan
Commission has jurisdiction to modify temporary award to final award
In Johnson v Land Air Express Inc., 391 S.W.3d 31 (Mo Ct. App 2012) the claimant obtained a temporary award to provide treatment for his back and the Commission modified the award to a final award and found claimant failed to prove prevailing factor. The parties did not dispute there was substantial evidence to support the finding. Claimant had a long history of prior back problems before he states he reinjured his back moving a pallet. Claimant asserted the Commission lacked jurisdiction in this case to modify the award when liability of medical bills remained an outstanding issue. The court found the Commission had jurisdiction without a subsequent hearing to modify a temporary award to a permanent award. The employer's payment of bills pursuant to the award did not make the treatment "authorized" to preclude an appeal. The court acknowledged the decision placed claimant in a "difficult" position that he might be liable for treatment ordered by the original award. Claimant failed to establish in a companion case that the condition arose from an occupational disease and did not appeal that case.
Atty: Yarwood, Slattery, Seliga
Court of appeals lacks jurisdiction to consider temporary award.
In White v Anderssen Mobile X-ray Service, 389 S.W.3d 222 (Mo. App 2012) the court of appeals concluded it lacked jurisdiction to consider the appeal. The employer disputed an accident en route to work arose out of and in the course of employment but stipulated in oral argument that claimant was on duty. Claimant asserted she started work after making a phone call to "check in."
Court of appeals lacks jurisdiction when motion to commute award remains outstanding
A pending motion of commutation in a PTD award left unresolved issues which warranted dismissal of the employer's appeal by the court of appeals. The claimant's attempt to dismiss the employer's initial appeal due to lack of a bond was properly rejected, when claimant in eight years of litigation failed to establish on the record that the employer was uninsured to require a bond. Grauberger v Atlas Van Lines, 2012 Mo. App. Lexis 816 (June 14, 2012), affirmed by Commission, 2012 Mo. WCLR Lexis 141 (July 18, 2012) (attorney withdrew motion to commutate award).
Atty: Hilliker, Childers
Comp Commission retains primary jurisdiction to determine accidental injury making summary judgment premature
The employer lost its summary judgment in a suit by an employee involving an injury at work based on a plain error review by the court of appeals. The claimant had a pending worker's compensation case which had not resolved whether claimant had an accident that was the prevailing factor in his injury. The court concluded summary judgment would result in manifest injustice to the claimant because it would prematurely end any civil suit on the merits when the defense was based on a question of fact regarding whether there was an accidental injury to be determined by the commission. The case is Cooper v Chrysler Group, 361 S.W.3d 60 (Mo. Ct. App. 2011)
The claimant filed a worker's compensation claim which required proof that the accident was the prevailing factor in his injuries and that any treatment arose from his accident. The dispute involving the 2007 accident arose whether or not a 2008 surgery was work-related. The employer admitted that claimant sustained a workplace accident but disputed that surgery was necessary as a result of the fall. The claimant filed suit and agreed the accident was not the prevailing factor in his injuries. The trail court had affirmed summary judgment in the employer's favor on the ground that plaintiff's exclusive remedy was under worker's compensation law.
The eastern district indicated that the circuit court violated the primary jurisdiction of the Commission to make the decision whether claimant sustained accidental injury. The primary jurisdiction doctrine provides the courts will not decide a controversy within the jurisdiction of an administrative tribunal until after the tribunal has entered its decision. A claimant may file a tort claim while a case remains pending before the commission but the Court abuses its discretion to render summary judgment on the merits.
Judge Crane concludes if the Commission "does not find an accidental injury, plaintiff should then be able to pursue his civil cause of action." Judge Romines in a concurring opinion indicated that legislative reform narrowing the definition of accidental injury inevitably resulted in more civil suits. "Clearly the legislature prefers jury trials."
Cooper on its merits is fundamentally a procedural issue that summary judgment is premature based on the primary jurisdiction doctrine. The case facts, however, contain several warnings for employers. Denying cases in comp may result in a civil tort case. This case goes one step further. The case facts warn employers that even admitting accident and providing benefits comp does not preclude a civil case when a dispute arises regarding medical care.
Plaintiff, in this case, pursues benefits and claims work benefits on the premise that work is the prevailing factor, and then in a civil case denies work in the prevailing factor. This is similar to the pleadings in State v KCP&L Greater Mo. Operations Co. v Hon. Cook, 353 S.W.3d 15 (Mo. Ct. App. 2011). In that case claimant lost a summary judgment motion in which claimant denied his work was the prevailing factor in his mesothelioma and the court in a landmark decision concluded post-reform changes abolished exclusive remedy defenses in occupational disease cases. Cooper does not go that far on the merits. The need for future medical treatment, such as a surgery, is not a determination of prevailing factor in the definition of accidental injury but whether the treatment is reasonably required as defined by 287.140, according to Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 6-14-2011). Tillotson is not mentioned in the opinion. The Cooper case fundamentally involved a fight over a surgery, and not whether claimant had an accident or needed at least some treatment related to an accident, as he had received physical therapy.
The determination required by the Commission is not as simple as suggested by the Cooper opinion.
Determining what accident injury means not may be more than whether claimant had an injury to his back (this appears undisputed) or that he needed some care (also apparently undisputed) but that claimant's accident caused a surgical condition. The opinion does not indicate if there was conflicting evidence on prevailing factor over fight over the role of pre-existing conditions, other accidents, treatment modalities or whether the issue arose simply over a denial of requested care. The Cooper opinion indicates claimant can simultaneously pursue tort and comp remedies but leaves unanswered the impact of election of remedies when claimant settles a comp case for a back injury but claims in tort he should have received something more. The case leaves the employer in the odd posture of trying to convince the Commission that work is the prevailing factor (which claimant now denies) but maintaining its defenses to dispute the surgery.
Attys: Eric Holland, Maureen McGlynn
No Exclusive Remedy for Occupational Disease Claims
Just when Missouri business was feeling good about things after comp reform, the court of appeals has now announced open season and allows claimants with occupational disease cases to go after their employers in circuit court instead of comp. State ex rel KCP&L Greater Mo. Operations Co. v Hon. Cook, 353 S.W.3d 13 (Mo. App. 2011) has profound implications for anyone running a business in Missouri.
Claimant's mesothelioma was diagnosed more than 2 decades after his employment ended. He states his exposure occurred while working but he denies his work was the prevailing factor. Claimant proceeded in tort on negligence and premises theories that his employer breached its care not to expose claimant to asbestos. The employer filed for summary judgment, and lost, on its argument that the exclusive remedy existed under worker's compensation.
What did the phrase "accidental injury" mean in 287.120.2 which provides comp as the exclusive remedy. The court found since claimant did not have an "accident" he could proceed in tort because exclusive remedy only applied to accidents. The employer conceded claimant did not have an "accident," as defined by the statute. The court of appeals affirmed the denial of summary judgment. The majority claims 2005 reform changed everything: it rejects a broader definition of accident in Staples v A.P. Green Fire Brick Co., 307 S.W.2d 45 (Mo. banc 1957) which incorporated occupational disease in the definition of accident for more than half a century.
Two dissents indicate the majority allows the claimant to elect his forum whether he wants to be in front of the Division or a jury to decide compensability. The dissenters find no legislative intent to remove occupational disease from the Act, or to decouple the Act's coverage from the Act's exclusivity. Claimant worked for the employer for 34 years. He had originally named 15 other defendants in his asbestos-exposure claim, and settled or dismissed everyone else except the employer.
Jurisdiction to approve structured settlements
In 2004 the Commission awarded death benefits to a surviving wife and three children after a claimant died from asbestos. Seven years later the parties agreed to a settlement to pay a lump sum and future periodic payments. The Commission refused to approve the agreement claiming it lacked "jurisdiction." The employer appealed.
The court of appeals in Roth v J.J. Brouk and Co., 356 S.W.3d 786 (Mo. App. 2011) concluded that the Commission had "authority" to approve the settlement by 287.390 which requires agency approval of any type of settlements. The Commission cannot avoid its duty to approve or disprove any settlement. The court notes that both the Commission and the state regulations conflate jurisdiction and authority, which are two separate and distinct inquiries. The case was remanded for the Commission to determine if the settlement comports with the statutory requirements, such as being in accordance with the rights of the parties.
Claimant sustained injuries when he slipped on a ladder fixing a pump to repair a hydraulic leak. He recovered benefits in comp and obtained judgment in a subsequent tort suit. The southern district reversed the judgment, noting claimant was a "classic" statutory employee and his activities did not fall within the "improvements" exception under 287.040 to avoid comp as an exclusive remedy. Sell v Carlisle Power Transmission, 298 S.W.3d 541 (Mo. Ct. App. 2009) distinguishes when an improvement is not an improvement, finding that claimant's routine duties to maintain the defendant's plant was more "maintenance" than "improvements", which related more to capital and construction that improved value or income.
Election of remedies did not bar civil suit after settling with one party
Lonnie Lewis was a passenger when he was riding in a tractor trailer that overturned and killed him in 2004. Lewis operated the truck for Freeman, an uninsured employer, who had a contract with DOT Transportation. The Lewises' dependents received an award in 2010 for worker's compensation benefits against DOT Transportation as a statutory employer. The circuit court granted summary judgment in a wrongful death claim and found the dependents had made an election of remedies by collecting worker's compensation benefits under 287.280. The court of appeals found no election of remedies against Freeman, as claimant recovered comp benefits only against DOT, and allowed the wrongful action to proceed against the uninsured employer because they were two separate employers. DOT could subrogate against any civil recovery against the employer to avoid an "evil" double recovery. Lewis v Gilmore, Freeman, 2011 Mo App. Lexis 489 superseded 2012 Mo. LEXIS 109.
In Thomas v Treasurer of the State of Mo, 326 S.W.3d 876 (Mo. Ct. App. 2010) the Court of Appeals found that the Commission erred that it lacked jurisdiction to consider an appeal filed within 20 days after an amended award, when the Commission found 287.610.1 barred the administrative law judge to issue the amended award to correct a judicial error in the computation of permanent partial disability. The Commission distinguished between judicial errors and clerical errors as the basis of its decision and found the administrative law judge had authority only to correct clerical errors. The court construed 287.610.1 to grant unfettered power to the administrative law judge to make substantial changes to an award to amend, modify, reinstate or dismiss the award within 20 days or until an appeal is filed with the Commission. The court finds the “plain reading” of the amendment referring to correcting “clerical errors” does not limit an ALJ’s authority correct such errors, but allows correction of such errors any time with the 20 days even after an application for review.
"None shall pass," warned an earnest knight from an old Monty Python skit that knew it was beat but kept swinging and made things only worse for himself as he lost more and more limbs. The same message was told to an employer who lost a dubious defense at the commission, and has been told by the Court of Appeals that its appeal of a temporary award isn't going to pass, either.
Bolen v Orchard Farm R-V School District, 291 S.W3d 747 (Mo. Ct. App. 2009) involved a claimant who alleged in 2006 she twisted her right knee, almost fell, and was told she might require surgery. The employee took the case to a temporary award in 2008 and the court ordered the employer to tender care. The employer asserted it owed nothing, as claimant provided notice on the 36th day, 6 days after the 30 day statutory deadline. In such cases, the employee must show lack of prejudice, a burden the claimant easily carried when the employer's own witness conceded no prejudice existed but that some prejudice could have theoretically occurred. The employer's own expert, Dr. Milne, concluded claimant needed treatment because of the accident.
The court of appeals quickly dismissed the appeal due to lack of jurisdiction, a point that has been well-established since the 2008 court of appeals decision in Norman v Phelps County Regional Medical Center, 256 S.W.3d 202 (Mo. App. SD 2008). The employer, represented by Evans & Dixon, argued that provisions in the code of state regulations allowed appeals, a point quickly dismissed that the state regulations cannot confer jurisdiction when it is not expressly granted by statute.
In Smalley v Landmark Erectors, ED 91861 (Mo. App. 4-28-2009) the Eastern District barred an employer from appealing a temporary award in a 2006 carpal tunnel case in which the employer denied all liability and claimed a previous employer was liable. The court discussed a judicially-created exception prior to the 2005 amendments that allowed an appeal of a temporary award for treatment where the employer claimed it was not liable or paying any compensation. Although the 2005 amendments did not specifically change 287.510, the section governing temporary awards, or 287.495, the section allowing appellate jurisdiction, the Eastern District found that allowing an appeal of a temporary award violates legislative intent to limit appellate review since the legislature requires strict construction under 287.800 and no statutory provision mandates the previous judicial exception.
State of hire determines jurisdiction
In Shupe v John Pizzo, 2013 Mo WCLR Lexis 196 (Oct. 2, 2013), claimant did not live in Missouri, his employer was not principally localized in Missouri and his injury occurred in South Dakota. The employer settled the Missouri claim and claimant asserted in a claim against the second injury fund she was totally disabled since 2001 after being thrown around in the back of cab and being out of work for 2 years. "Claimant claims Missouri jurisdiction because her employer and United Van Lines entered into an agreement that was finalized in Missouri. Although the final steps of an agreement between United Van Lines and John Pizzo Trucking occurred in Fenton, Missouri, there is no basis to find that relationship was a "contract of employment."
ALJ: Boresi
Atty: Morgan, Barnard
In Riley v Don Julian Bros., 2013 MO WCLR Lexis 169 (August 30, 2013), the Commission found Missouri was the state of hire when claimant accepted an offer over the telephone. The employer's own personnel records were consistent with the alleged hire date, although the employer asserted claimant required additional steps. A dissent argued that jurisdiction was proper in Kansas when claimant participated in a second interview. The case involved a catastrophic spinal cord injury in 2002 in which medical bills were more than 3 million dollars.
ALJ Fowler
Atty Thomas, Henoch
In Mayse v Jeff Honor Roofing, DOLIR 1-28-11, the Commission affirmed a decision that Missouri had jurisdiction to allow claimant to pursue SIF benefits based on the state of hire, when claimant reports he accepted a job offer from a Kansas company for work to be performed in Kansas after he returned from a Kansas office to drop off an application. Claimant settled for $60,000 in Kansas, and obtained an award of permanent total against the second injury fund. Claimant's prior chronic back pain combined with a new back injury (unoperated), causing a change to a more sedentary life style and need to lie down with some depressive symptoms. The ALJ found that claimant's previous learning disability with illiteracy also combined to impair claimant's coping skills and prevented him from learning new vocational skills. The decision has a detailed discussion regarding prior learning disability cases.
ALJ Magruder
Atty: Eppright, Fournier
Treaters: Dickey, Jones, Hendel
Experts: Koprivica
Claimant cannot recover benefits under Missouri compensation law in a hardship setting flowing from a March 2009 accident when he worked as a over the road truck driver and fell from a truck in Dallas, Texas, because the claimant was hired in Kansas, not Missouri. The case is Auxier v HP Distribution LLP, DOLIR 9-3-10. Claimant worked as a driver for a previous company which went into involuntary bankruptcy about 9 months before the accident and transitioned with some other employees to work for the defendant. The issue in the case was if claimant had, in fact, been "hired" or "merged" with the defendant and where any last act for hiring occurred. The administrative law judge found claimant had been hired and was not "merged", and resolved conflicting testimony that claimant had been hired in Kansas, and not Missouri, finding claimant was not credible in his claim that he required a drug test in Missouri as a condition of employment. The employer had stipulated claimant's accident arose out of and in the course of his employment, and had paid about $54,000 in benefits leading up to the hardship for additional care.
The Commission last year denied benefits based on lack of jurisdiction, and because a required drug test occurred outside the state of Missouri . Roberts v Leggett &Platt, DOLIR 3-25-09.
ALJ Miner
Atty: Creedy, Abbott
Exclusive remedy defense can be waived
A Missouri employer's failure to assert worker's comp in its answer to a tort suit in the future waives the defense of comp as an exclusive remedy, according to the Supreme Court's reject decision McCracken v Wal-mart Stores East, 198 S.W.3d 479 (Mo. 2009).
The Missouri Supreme Court concludes strict construction no longer mandates a liberal reading to prove comp coverage in close cases, and allowed a claimant to proceed in a negligence claim against Wal-mart which asserted a last minute statutory employment defense that claimant's only remedy was in comp when a Wal-mart employee pushed a bread rack into his shoulder. Claimant worked for IBC, a vendor that emptied bread racks from IBC's truck to a loading area before product was stocked in the Wal-mart display racks. Claimant had settled his comp claim against IBC.
The Supreme Court concluded the circuit court erred in dismissing the case due to lack of subject matter jurisdiction, noting that the circuit courts have jurisdiction over all cases and matters according to the state constitution. The Comp Act cannot overrule the provisions of article V, section 14 giving circuit courts jurisdiction over personal injury claims.
Claimant does not have an unequivocal right to proceed in circuit court, but the circuit court retains jurisdiction to address an exception to tort liability created by the Act as an affirmative defense under Rule 55.08 or 55.27(a). Alternatively a claimant may file in worker's comp, and the Commission may make a determination whether or not claimant is a statutory employee to allow a claimant to proceed in tort.
The court addressed the merits because of historical confusion and "sloppiness" concerning the defense. Walmart failed to assert the defense in the timely basis in its answer and waited until the day of the trial erroneously to assert the defense as a motion to dismiss but the rule was applied prospectively only.
The Western District in Fortenberry v Buck D.O., 307 S.W.3d 676 (Mo. Ct. App.2010), found the court erroneously failed to use a stricter summary judgment standard before dismissing a malpractice claim for lack of subject matter jurisdiction. Claimant treated at an on site medical clinic and received an award of permanent total benefits for ulnar injuries which he claims flowed from receiving an injection. He claimed the physician did "something more" to support the second action. The court noted the record was not fully developed whether or not there was a genuine dispute of facts or if the duties to provide medical care were non-delegable.
In Heirien v Flowers, 343 S.W.3d 699 (Mo. Ct. App. 6-27-11) the court noted the defendant preserved its argument of exclusive remedy by filing a motion to dismiss for lack of subject matter jurisdiction. The case was remanded because the judge found it lacked subject matter jurisdiction contrary to McCracken, which interpreted exclusive remedy as an affirmative defense. The parties, unlike McCracken, disputed facts and the case could not be resolved on its merits as a motion for summary judgment. The plaintiffs alleged that the defendant did "something more" by directing claimant to handle heavy kiln doors with a propensity to tip over before one fatally crushed him.
Issues in dispute precluded summary judgment for work-related assault
Dollar General obtained a summary judgment to stop a wrongful death claim when the claimant's boyfriend came to the store and killed her.
The Court of appeals reversed a summary judgment on behalf of the employer and indicated issues of genuine fact remained in dispute. Flowers v City of Campbell and Dollar General, 384 S.W.3d 305 (Mo. Ct. App. 2012)
A summary judgment is a "drastic" remedy. The employer argued that an assault arising out of and in the course of employment was subject to the exclusive jurisdiction of the worker's compensation act and that claimant's parents could not proceed with their wrongful death claim. The court noted that not every assault at work was subject to the Act and if the non-moving party could establish an exception that summary judgment was improper. A purely personal assault is not compensable under the Act. The court then made its own de novo finding that claimant's assault was an exception because it was directed by purely personal reasons.
In the case an 18 -year cashier in Campbell, Mo arrived at work with a black eye and stated her boyfriend had assaulted her. He then showed up at work and tried to kick down an office door and was persuaded to leave. He arrived a few hours later and shot her and then killed himself. The court indicated that statutory reform had not changed the law regarding assaults, and described numerous prior cases in which employees imported their private life to work. The decision does not explain why the boyfriend had been released from police custody.
The employer had filed a form 1 report of injury. The court further noted that the summary judgment motion had a procedural defect which did not contain a list of "uncontroverted facts" which could have supported a denial by itself. The employer's motion contained a list of "facts" including the legal conclusion that the accident arose out of and in the course of employment.
The court sustained a motion for summary judgment filed against claimant's supervisor, who asserted he had no legal duty to the claimant. The court rejected plaintiff's motion to file a late response to the supervisor's motion for summary judgment and concluded the excuse that his temporary secretary made a docketing mistake was not "excusable neglect" to support a motion filed out of time.
The decision does not indicate if any benefits had been paid under the Worker's Compensation Act for the 2006 accident.
Piercing the corporate veil
Claimant was hired in 2005 to perform heating, air and electrical work on new construction for a building and fractured his left elbow when he fell from a ladder while installing duct work. The uninsured company, an LLC, argued claimant was an independent contractor. The Commission found claimant was an employee, and pierced the corporate veil to impose personal liability on the owners (Mr. and Mrs. Lile) resulting in an award of over $72,000 with open medical. Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012). The Second Injury Fund was ordered to pay the medical bills
The ALJ found the employer was less credible because of "inconsistent, vague and evasive" testimony and found liability conflicting evidence whether on not Mrs. Lile was a co-owner. Mrs. Lile did not file an appeal on the award and the appeal on her behalf filed by her husband was dismissed as unauthorized practice of law. The employer operated its business out of a personal residence under several fictitious entities.
The statute required claimant to have only 1 employee to be subject to the Act because it was performing construction work.
"Missouri Courts have also recognized that the corporate veil could be pierced in a workers' compensation case where in essence the corporation was not a separate legal entity from its owners." In order to "pierce the corporate veil", the employee had to show 1) control, and not merely majority or complete stock control, but complete domination, not only of finances, but of policy and business practices in respect to the transaction attacked so that the nominal company had at the time of the injury no separate mind, will or existence of its own; 2) such control must have been used to commit fraud or wrong, to perpetuate the violation of a statutory duty, or constitute a dishonest and unjust act in contravention of the employee's legal rights; and 3) the aforesaid control and breach of duty must have proximately caused the injury or unjust loss complained of."
"In Claimant's case, there was a complete domination of the LLC by Steve and Melissa Liles, as the owners of the LLC. The Liles' exercised complete domination of the finances, policies and business practices of the LLC. They used the LLC's income for their own personal use. Out of the LLC's income, the Liles' paid their home mortgage payments, paid their home's utility bills, paid their personal vehicle loans, paid a Direct TV television bill, bought clothing for the family, paid a dental bill for Mr. Liles, paid their personal credit card bills, paid their personal health insurance premiums and paid other personal bills. That was clearly indicative of a complete domination of the finances of the LLC by the Liles'.
The Liles' also dominated the business policies and practices of the LLC. The LLC clearly had no separate mind, will or existence of its own. The Liles' chose not to purchase workers' compensation insurance for the LLC on the alleged basis that Clamant and the other workers were subcontractors when the evidence clearly showed that Claimant was an employee and not a subcontractor. The Liles' chose not to allow the LLC to pay its debt to Claimant and instead chose to allow the LLC to pay for their own personal living expenses such as their mortgage payments, house payments, credit card payments and other expenses."
Settlement did not preclude wrongful death suit
An uninsured employer could be sued for wrongful death because claimant's worker's compensation settlement was not an election of remedies, according to the Missouri Supreme Court in Lewis, etal, v. Gilmore, etal, 366 S.W.3d 522 (Mo. 2012)
A claimant may elect to sue his employer in circuit court if the employer fails to carry worker's compensation insurance. Claimant worked for an uninsured trucking company, Freeman, which operated under a contract with DOT when his truck over turned resulting in his death. Claimant's survivors filed worker's compensation and wrongful death suits against both claimant's employer and the statutory employer, DOT. The circuit court stayed the wrongful death suit until the Commission ordered DOT to provide compensation benefits, and then granted summary judgment in favor of Freeman. The Supreme Court now reverses the summary judgment.
The election of remedies doctrine prevents further recovery once a party prosecutes a case to a final judgment to prevent double recovery from a single injury. The majority concluded that the election of remedies doctrine did not apply in this case with multiple defendants because claimant did not obtain a final judgment against the uninsured employer and "to not allow a civil action takes away one of the options the General Assembly gave an employee to seek redress against an employer who has done nothing to secure workers' compensation insurance for his employees." A dissent argued claimant elected his remedy because he already received a recovery from a single injury through worker's compensation and to allow further recoveries let claimant have his cake and eat it too.
Hon. Tietelman
The Commission denied benefits in Neese v Chrysler, Old Carco, 2014 MO WCLR Lexis 22 (March 11, 2015) involving four claims of occupational disease leading up to end of employment in 2005 and her neck surgery in 2007, affirming a denial. The Commission found that claimant failed to prove a compensable injury under 287.110 and did not show an employment contract in Missouri, and her work was not principally localized in Missouri within 13 weeks of the injury or diagnosis. Claimant had worked in Alabama but had worked in Missouri only about 3 weeks. The Commission in addition denies benefits based on lack of causation noting the experts relied upon inaccurate histories. "Both doctors rendered purely conclusory opinions in their reports, and failed to persuasively explain any causative interaction between employee's job duties in Missouri and the purported occupational disease."
ALJ Denigan
Experts: Dr. Poetz, Dr. Berkin, Dr. Cantrell
No Mo jurisdiction for KS accident (287.110)
Claimant failed to carry his burden of MO jurisdiction and the commission was free to disbelieve claims of a Missouri contract of employment by purchasing equipment in MO for a KS job. Although claimant assets the evidence was uncontested the ALJ found it to be cursory, vague and disjointed. The Commission could adopt the ALJ opinion with or without correct and did not have to produce its own award. Lopez v Martinez, 2014 Mo App. Lexis 633 (June 3, 2014).
ALJ Stokes, Lindsay
No amended award after appeal
The Commission affirmed an award of total disability benefits against the Fund, but noted an error to issue an amended award after the appeal was filed. George v Ajax, 2013 Mo WCLR Lexis 195 (Oct. 2, 2013); 2014 MO WCLR Lexis 70 (May 15, 2014)(benefits cease upon death or remarriage).
ALJ Denigan
Commission has jurisdiction to modify temporary award to final award
In Johnson v Land Air Express Inc., 391 S.W.3d 31 (Mo Ct. App 2012) the claimant obtained a temporary award to provide treatment for his back and the Commission modified the award to a final award and found claimant failed to prove prevailing factor. The parties did not dispute there was substantial evidence to support the finding. Claimant had a long history of prior back problems before he states he reinjured his back moving a pallet. Claimant asserted the Commission lacked jurisdiction in this case to modify the award when liability of medical bills remained an outstanding issue. The court found the Commission had jurisdiction without a subsequent hearing to modify a temporary award to a permanent award. The employer's payment of bills pursuant to the award did not make the treatment "authorized" to preclude an appeal. The court acknowledged the decision placed claimant in a "difficult" position that he might be liable for treatment ordered by the original award. Claimant failed to establish in a companion case that the condition arose from an occupational disease and did not appeal that case.
Atty: Yarwood, Slattery, Seliga
Court of appeals lacks jurisdiction to consider temporary award.
In White v Anderssen Mobile X-ray Service, 389 S.W.3d 222 (Mo. App 2012) the court of appeals concluded it lacked jurisdiction to consider the appeal. The employer disputed an accident en route to work arose out of and in the course of employment but stipulated in oral argument that claimant was on duty. Claimant asserted she started work after making a phone call to "check in."
Court of appeals lacks jurisdiction when motion to commute award remains outstanding
A pending motion of commutation in a PTD award left unresolved issues which warranted dismissal of the employer's appeal by the court of appeals. The claimant's attempt to dismiss the employer's initial appeal due to lack of a bond was properly rejected, when claimant in eight years of litigation failed to establish on the record that the employer was uninsured to require a bond. Grauberger v Atlas Van Lines, 2012 Mo. App. Lexis 816 (June 14, 2012), affirmed by Commission, 2012 Mo. WCLR Lexis 141 (July 18, 2012) (attorney withdrew motion to commutate award).
Atty: Hilliker, Childers
Comp Commission retains primary jurisdiction to determine accidental injury making summary judgment premature
The employer lost its summary judgment in a suit by an employee involving an injury at work based on a plain error review by the court of appeals. The claimant had a pending worker's compensation case which had not resolved whether claimant had an accident that was the prevailing factor in his injury. The court concluded summary judgment would result in manifest injustice to the claimant because it would prematurely end any civil suit on the merits when the defense was based on a question of fact regarding whether there was an accidental injury to be determined by the commission. The case is Cooper v Chrysler Group, 361 S.W.3d 60 (Mo. Ct. App. 2011)
The claimant filed a worker's compensation claim which required proof that the accident was the prevailing factor in his injuries and that any treatment arose from his accident. The dispute involving the 2007 accident arose whether or not a 2008 surgery was work-related. The employer admitted that claimant sustained a workplace accident but disputed that surgery was necessary as a result of the fall. The claimant filed suit and agreed the accident was not the prevailing factor in his injuries. The trail court had affirmed summary judgment in the employer's favor on the ground that plaintiff's exclusive remedy was under worker's compensation law.
The eastern district indicated that the circuit court violated the primary jurisdiction of the Commission to make the decision whether claimant sustained accidental injury. The primary jurisdiction doctrine provides the courts will not decide a controversy within the jurisdiction of an administrative tribunal until after the tribunal has entered its decision. A claimant may file a tort claim while a case remains pending before the commission but the Court abuses its discretion to render summary judgment on the merits.
Judge Crane concludes if the Commission "does not find an accidental injury, plaintiff should then be able to pursue his civil cause of action." Judge Romines in a concurring opinion indicated that legislative reform narrowing the definition of accidental injury inevitably resulted in more civil suits. "Clearly the legislature prefers jury trials."
Cooper on its merits is fundamentally a procedural issue that summary judgment is premature based on the primary jurisdiction doctrine. The case facts, however, contain several warnings for employers. Denying cases in comp may result in a civil tort case. This case goes one step further. The case facts warn employers that even admitting accident and providing benefits comp does not preclude a civil case when a dispute arises regarding medical care.
Plaintiff, in this case, pursues benefits and claims work benefits on the premise that work is the prevailing factor, and then in a civil case denies work in the prevailing factor. This is similar to the pleadings in State v KCP&L Greater Mo. Operations Co. v Hon. Cook, 353 S.W.3d 15 (Mo. Ct. App. 2011). In that case claimant lost a summary judgment motion in which claimant denied his work was the prevailing factor in his mesothelioma and the court in a landmark decision concluded post-reform changes abolished exclusive remedy defenses in occupational disease cases. Cooper does not go that far on the merits. The need for future medical treatment, such as a surgery, is not a determination of prevailing factor in the definition of accidental injury but whether the treatment is reasonably required as defined by 287.140, according to Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 6-14-2011). Tillotson is not mentioned in the opinion. The Cooper case fundamentally involved a fight over a surgery, and not whether claimant had an accident or needed at least some treatment related to an accident, as he had received physical therapy.
The determination required by the Commission is not as simple as suggested by the Cooper opinion.
Determining what accident injury means not may be more than whether claimant had an injury to his back (this appears undisputed) or that he needed some care (also apparently undisputed) but that claimant's accident caused a surgical condition. The opinion does not indicate if there was conflicting evidence on prevailing factor over fight over the role of pre-existing conditions, other accidents, treatment modalities or whether the issue arose simply over a denial of requested care. The Cooper opinion indicates claimant can simultaneously pursue tort and comp remedies but leaves unanswered the impact of election of remedies when claimant settles a comp case for a back injury but claims in tort he should have received something more. The case leaves the employer in the odd posture of trying to convince the Commission that work is the prevailing factor (which claimant now denies) but maintaining its defenses to dispute the surgery.
Attys: Eric Holland, Maureen McGlynn
No Exclusive Remedy for Occupational Disease Claims
Just when Missouri business was feeling good about things after comp reform, the court of appeals has now announced open season and allows claimants with occupational disease cases to go after their employers in circuit court instead of comp. State ex rel KCP&L Greater Mo. Operations Co. v Hon. Cook, 353 S.W.3d 13 (Mo. App. 2011) has profound implications for anyone running a business in Missouri.
Claimant's mesothelioma was diagnosed more than 2 decades after his employment ended. He states his exposure occurred while working but he denies his work was the prevailing factor. Claimant proceeded in tort on negligence and premises theories that his employer breached its care not to expose claimant to asbestos. The employer filed for summary judgment, and lost, on its argument that the exclusive remedy existed under worker's compensation.
What did the phrase "accidental injury" mean in 287.120.2 which provides comp as the exclusive remedy. The court found since claimant did not have an "accident" he could proceed in tort because exclusive remedy only applied to accidents. The employer conceded claimant did not have an "accident," as defined by the statute. The court of appeals affirmed the denial of summary judgment. The majority claims 2005 reform changed everything: it rejects a broader definition of accident in Staples v A.P. Green Fire Brick Co., 307 S.W.2d 45 (Mo. banc 1957) which incorporated occupational disease in the definition of accident for more than half a century.
Two dissents indicate the majority allows the claimant to elect his forum whether he wants to be in front of the Division or a jury to decide compensability. The dissenters find no legislative intent to remove occupational disease from the Act, or to decouple the Act's coverage from the Act's exclusivity. Claimant worked for the employer for 34 years. He had originally named 15 other defendants in his asbestos-exposure claim, and settled or dismissed everyone else except the employer.
Jurisdiction to approve structured settlements
In 2004 the Commission awarded death benefits to a surviving wife and three children after a claimant died from asbestos. Seven years later the parties agreed to a settlement to pay a lump sum and future periodic payments. The Commission refused to approve the agreement claiming it lacked "jurisdiction." The employer appealed.
The court of appeals in Roth v J.J. Brouk and Co., 356 S.W.3d 786 (Mo. App. 2011) concluded that the Commission had "authority" to approve the settlement by 287.390 which requires agency approval of any type of settlements. The Commission cannot avoid its duty to approve or disprove any settlement. The court notes that both the Commission and the state regulations conflate jurisdiction and authority, which are two separate and distinct inquiries. The case was remanded for the Commission to determine if the settlement comports with the statutory requirements, such as being in accordance with the rights of the parties.
Claimant sustained injuries when he slipped on a ladder fixing a pump to repair a hydraulic leak. He recovered benefits in comp and obtained judgment in a subsequent tort suit. The southern district reversed the judgment, noting claimant was a "classic" statutory employee and his activities did not fall within the "improvements" exception under 287.040 to avoid comp as an exclusive remedy. Sell v Carlisle Power Transmission, 298 S.W.3d 541 (Mo. Ct. App. 2009) distinguishes when an improvement is not an improvement, finding that claimant's routine duties to maintain the defendant's plant was more "maintenance" than "improvements", which related more to capital and construction that improved value or income.
Election of remedies did not bar civil suit after settling with one party
Lonnie Lewis was a passenger when he was riding in a tractor trailer that overturned and killed him in 2004. Lewis operated the truck for Freeman, an uninsured employer, who had a contract with DOT Transportation. The Lewises' dependents received an award in 2010 for worker's compensation benefits against DOT Transportation as a statutory employer. The circuit court granted summary judgment in a wrongful death claim and found the dependents had made an election of remedies by collecting worker's compensation benefits under 287.280. The court of appeals found no election of remedies against Freeman, as claimant recovered comp benefits only against DOT, and allowed the wrongful action to proceed against the uninsured employer because they were two separate employers. DOT could subrogate against any civil recovery against the employer to avoid an "evil" double recovery. Lewis v Gilmore, Freeman, 2011 Mo App. Lexis 489 superseded 2012 Mo. LEXIS 109.
In Thomas v Treasurer of the State of Mo, 326 S.W.3d 876 (Mo. Ct. App. 2010) the Court of Appeals found that the Commission erred that it lacked jurisdiction to consider an appeal filed within 20 days after an amended award, when the Commission found 287.610.1 barred the administrative law judge to issue the amended award to correct a judicial error in the computation of permanent partial disability. The Commission distinguished between judicial errors and clerical errors as the basis of its decision and found the administrative law judge had authority only to correct clerical errors. The court construed 287.610.1 to grant unfettered power to the administrative law judge to make substantial changes to an award to amend, modify, reinstate or dismiss the award within 20 days or until an appeal is filed with the Commission. The court finds the “plain reading” of the amendment referring to correcting “clerical errors” does not limit an ALJ’s authority correct such errors, but allows correction of such errors any time with the 20 days even after an application for review.
"None shall pass," warned an earnest knight from an old Monty Python skit that knew it was beat but kept swinging and made things only worse for himself as he lost more and more limbs. The same message was told to an employer who lost a dubious defense at the commission, and has been told by the Court of Appeals that its appeal of a temporary award isn't going to pass, either.
Bolen v Orchard Farm R-V School District, 291 S.W3d 747 (Mo. Ct. App. 2009) involved a claimant who alleged in 2006 she twisted her right knee, almost fell, and was told she might require surgery. The employee took the case to a temporary award in 2008 and the court ordered the employer to tender care. The employer asserted it owed nothing, as claimant provided notice on the 36th day, 6 days after the 30 day statutory deadline. In such cases, the employee must show lack of prejudice, a burden the claimant easily carried when the employer's own witness conceded no prejudice existed but that some prejudice could have theoretically occurred. The employer's own expert, Dr. Milne, concluded claimant needed treatment because of the accident.
The court of appeals quickly dismissed the appeal due to lack of jurisdiction, a point that has been well-established since the 2008 court of appeals decision in Norman v Phelps County Regional Medical Center, 256 S.W.3d 202 (Mo. App. SD 2008). The employer, represented by Evans & Dixon, argued that provisions in the code of state regulations allowed appeals, a point quickly dismissed that the state regulations cannot confer jurisdiction when it is not expressly granted by statute.
In Smalley v Landmark Erectors, ED 91861 (Mo. App. 4-28-2009) the Eastern District barred an employer from appealing a temporary award in a 2006 carpal tunnel case in which the employer denied all liability and claimed a previous employer was liable. The court discussed a judicially-created exception prior to the 2005 amendments that allowed an appeal of a temporary award for treatment where the employer claimed it was not liable or paying any compensation. Although the 2005 amendments did not specifically change 287.510, the section governing temporary awards, or 287.495, the section allowing appellate jurisdiction, the Eastern District found that allowing an appeal of a temporary award violates legislative intent to limit appellate review since the legislature requires strict construction under 287.800 and no statutory provision mandates the previous judicial exception.
State of hire determines jurisdiction
In Shupe v John Pizzo, 2013 Mo WCLR Lexis 196 (Oct. 2, 2013), claimant did not live in Missouri, his employer was not principally localized in Missouri and his injury occurred in South Dakota. The employer settled the Missouri claim and claimant asserted in a claim against the second injury fund she was totally disabled since 2001 after being thrown around in the back of cab and being out of work for 2 years. "Claimant claims Missouri jurisdiction because her employer and United Van Lines entered into an agreement that was finalized in Missouri. Although the final steps of an agreement between United Van Lines and John Pizzo Trucking occurred in Fenton, Missouri, there is no basis to find that relationship was a "contract of employment."
ALJ: Boresi
Atty: Morgan, Barnard
In Riley v Don Julian Bros., 2013 MO WCLR Lexis 169 (August 30, 2013), the Commission found Missouri was the state of hire when claimant accepted an offer over the telephone. The employer's own personnel records were consistent with the alleged hire date, although the employer asserted claimant required additional steps. A dissent argued that jurisdiction was proper in Kansas when claimant participated in a second interview. The case involved a catastrophic spinal cord injury in 2002 in which medical bills were more than 3 million dollars.
ALJ Fowler
Atty Thomas, Henoch
In Mayse v Jeff Honor Roofing, DOLIR 1-28-11, the Commission affirmed a decision that Missouri had jurisdiction to allow claimant to pursue SIF benefits based on the state of hire, when claimant reports he accepted a job offer from a Kansas company for work to be performed in Kansas after he returned from a Kansas office to drop off an application. Claimant settled for $60,000 in Kansas, and obtained an award of permanent total against the second injury fund. Claimant's prior chronic back pain combined with a new back injury (unoperated), causing a change to a more sedentary life style and need to lie down with some depressive symptoms. The ALJ found that claimant's previous learning disability with illiteracy also combined to impair claimant's coping skills and prevented him from learning new vocational skills. The decision has a detailed discussion regarding prior learning disability cases.
ALJ Magruder
Atty: Eppright, Fournier
Treaters: Dickey, Jones, Hendel
Experts: Koprivica
Claimant cannot recover benefits under Missouri compensation law in a hardship setting flowing from a March 2009 accident when he worked as a over the road truck driver and fell from a truck in Dallas, Texas, because the claimant was hired in Kansas, not Missouri. The case is Auxier v HP Distribution LLP, DOLIR 9-3-10. Claimant worked as a driver for a previous company which went into involuntary bankruptcy about 9 months before the accident and transitioned with some other employees to work for the defendant. The issue in the case was if claimant had, in fact, been "hired" or "merged" with the defendant and where any last act for hiring occurred. The administrative law judge found claimant had been hired and was not "merged", and resolved conflicting testimony that claimant had been hired in Kansas, and not Missouri, finding claimant was not credible in his claim that he required a drug test in Missouri as a condition of employment. The employer had stipulated claimant's accident arose out of and in the course of his employment, and had paid about $54,000 in benefits leading up to the hardship for additional care.
The Commission last year denied benefits based on lack of jurisdiction, and because a required drug test occurred outside the state of Missouri . Roberts v Leggett &Platt, DOLIR 3-25-09.
ALJ Miner
Atty: Creedy, Abbott
Exclusive remedy defense can be waived
A Missouri employer's failure to assert worker's comp in its answer to a tort suit in the future waives the defense of comp as an exclusive remedy, according to the Supreme Court's reject decision McCracken v Wal-mart Stores East, 198 S.W.3d 479 (Mo. 2009).
The Missouri Supreme Court concludes strict construction no longer mandates a liberal reading to prove comp coverage in close cases, and allowed a claimant to proceed in a negligence claim against Wal-mart which asserted a last minute statutory employment defense that claimant's only remedy was in comp when a Wal-mart employee pushed a bread rack into his shoulder. Claimant worked for IBC, a vendor that emptied bread racks from IBC's truck to a loading area before product was stocked in the Wal-mart display racks. Claimant had settled his comp claim against IBC.
The Supreme Court concluded the circuit court erred in dismissing the case due to lack of subject matter jurisdiction, noting that the circuit courts have jurisdiction over all cases and matters according to the state constitution. The Comp Act cannot overrule the provisions of article V, section 14 giving circuit courts jurisdiction over personal injury claims.
Claimant does not have an unequivocal right to proceed in circuit court, but the circuit court retains jurisdiction to address an exception to tort liability created by the Act as an affirmative defense under Rule 55.08 or 55.27(a). Alternatively a claimant may file in worker's comp, and the Commission may make a determination whether or not claimant is a statutory employee to allow a claimant to proceed in tort.
The court addressed the merits because of historical confusion and "sloppiness" concerning the defense. Walmart failed to assert the defense in the timely basis in its answer and waited until the day of the trial erroneously to assert the defense as a motion to dismiss but the rule was applied prospectively only.
The Western District in Fortenberry v Buck D.O., 307 S.W.3d 676 (Mo. Ct. App.2010), found the court erroneously failed to use a stricter summary judgment standard before dismissing a malpractice claim for lack of subject matter jurisdiction. Claimant treated at an on site medical clinic and received an award of permanent total benefits for ulnar injuries which he claims flowed from receiving an injection. He claimed the physician did "something more" to support the second action. The court noted the record was not fully developed whether or not there was a genuine dispute of facts or if the duties to provide medical care were non-delegable.
In Heirien v Flowers, 343 S.W.3d 699 (Mo. Ct. App. 6-27-11) the court noted the defendant preserved its argument of exclusive remedy by filing a motion to dismiss for lack of subject matter jurisdiction. The case was remanded because the judge found it lacked subject matter jurisdiction contrary to McCracken, which interpreted exclusive remedy as an affirmative defense. The parties, unlike McCracken, disputed facts and the case could not be resolved on its merits as a motion for summary judgment. The plaintiffs alleged that the defendant did "something more" by directing claimant to handle heavy kiln doors with a propensity to tip over before one fatally crushed him.
Issues in dispute precluded summary judgment for work-related assault
Dollar General obtained a summary judgment to stop a wrongful death claim when the claimant's boyfriend came to the store and killed her.
The Court of appeals reversed a summary judgment on behalf of the employer and indicated issues of genuine fact remained in dispute. Flowers v City of Campbell and Dollar General, 384 S.W.3d 305 (Mo. Ct. App. 2012)
A summary judgment is a "drastic" remedy. The employer argued that an assault arising out of and in the course of employment was subject to the exclusive jurisdiction of the worker's compensation act and that claimant's parents could not proceed with their wrongful death claim. The court noted that not every assault at work was subject to the Act and if the non-moving party could establish an exception that summary judgment was improper. A purely personal assault is not compensable under the Act. The court then made its own de novo finding that claimant's assault was an exception because it was directed by purely personal reasons.
In the case an 18 -year cashier in Campbell, Mo arrived at work with a black eye and stated her boyfriend had assaulted her. He then showed up at work and tried to kick down an office door and was persuaded to leave. He arrived a few hours later and shot her and then killed himself. The court indicated that statutory reform had not changed the law regarding assaults, and described numerous prior cases in which employees imported their private life to work. The decision does not explain why the boyfriend had been released from police custody.
The employer had filed a form 1 report of injury. The court further noted that the summary judgment motion had a procedural defect which did not contain a list of "uncontroverted facts" which could have supported a denial by itself. The employer's motion contained a list of "facts" including the legal conclusion that the accident arose out of and in the course of employment.
The court sustained a motion for summary judgment filed against claimant's supervisor, who asserted he had no legal duty to the claimant. The court rejected plaintiff's motion to file a late response to the supervisor's motion for summary judgment and concluded the excuse that his temporary secretary made a docketing mistake was not "excusable neglect" to support a motion filed out of time.
The decision does not indicate if any benefits had been paid under the Worker's Compensation Act for the 2006 accident.
Piercing the corporate veil
Claimant was hired in 2005 to perform heating, air and electrical work on new construction for a building and fractured his left elbow when he fell from a ladder while installing duct work. The uninsured company, an LLC, argued claimant was an independent contractor. The Commission found claimant was an employee, and pierced the corporate veil to impose personal liability on the owners (Mr. and Mrs. Lile) resulting in an award of over $72,000 with open medical. Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012). The Second Injury Fund was ordered to pay the medical bills
The ALJ found the employer was less credible because of "inconsistent, vague and evasive" testimony and found liability conflicting evidence whether on not Mrs. Lile was a co-owner. Mrs. Lile did not file an appeal on the award and the appeal on her behalf filed by her husband was dismissed as unauthorized practice of law. The employer operated its business out of a personal residence under several fictitious entities.
The statute required claimant to have only 1 employee to be subject to the Act because it was performing construction work.
"Missouri Courts have also recognized that the corporate veil could be pierced in a workers' compensation case where in essence the corporation was not a separate legal entity from its owners." In order to "pierce the corporate veil", the employee had to show 1) control, and not merely majority or complete stock control, but complete domination, not only of finances, but of policy and business practices in respect to the transaction attacked so that the nominal company had at the time of the injury no separate mind, will or existence of its own; 2) such control must have been used to commit fraud or wrong, to perpetuate the violation of a statutory duty, or constitute a dishonest and unjust act in contravention of the employee's legal rights; and 3) the aforesaid control and breach of duty must have proximately caused the injury or unjust loss complained of."
"In Claimant's case, there was a complete domination of the LLC by Steve and Melissa Liles, as the owners of the LLC. The Liles' exercised complete domination of the finances, policies and business practices of the LLC. They used the LLC's income for their own personal use. Out of the LLC's income, the Liles' paid their home mortgage payments, paid their home's utility bills, paid their personal vehicle loans, paid a Direct TV television bill, bought clothing for the family, paid a dental bill for Mr. Liles, paid their personal credit card bills, paid their personal health insurance premiums and paid other personal bills. That was clearly indicative of a complete domination of the finances of the LLC by the Liles'.
The Liles' also dominated the business policies and practices of the LLC. The LLC clearly had no separate mind, will or existence of its own. The Liles' chose not to purchase workers' compensation insurance for the LLC on the alleged basis that Clamant and the other workers were subcontractors when the evidence clearly showed that Claimant was an employee and not a subcontractor. The Liles' chose not to allow the LLC to pay its debt to Claimant and instead chose to allow the LLC to pay for their own personal living expenses such as their mortgage payments, house payments, credit card payments and other expenses."
Settlement did not preclude wrongful death suit
An uninsured employer could be sued for wrongful death because claimant's worker's compensation settlement was not an election of remedies, according to the Missouri Supreme Court in Lewis, etal, v. Gilmore, etal, 366 S.W.3d 522 (Mo. 2012)
A claimant may elect to sue his employer in circuit court if the employer fails to carry worker's compensation insurance. Claimant worked for an uninsured trucking company, Freeman, which operated under a contract with DOT when his truck over turned resulting in his death. Claimant's survivors filed worker's compensation and wrongful death suits against both claimant's employer and the statutory employer, DOT. The circuit court stayed the wrongful death suit until the Commission ordered DOT to provide compensation benefits, and then granted summary judgment in favor of Freeman. The Supreme Court now reverses the summary judgment.
The election of remedies doctrine prevents further recovery once a party prosecutes a case to a final judgment to prevent double recovery from a single injury. The majority concluded that the election of remedies doctrine did not apply in this case with multiple defendants because claimant did not obtain a final judgment against the uninsured employer and "to not allow a civil action takes away one of the options the General Assembly gave an employee to seek redress against an employer who has done nothing to secure workers' compensation insurance for his employees." A dissent argued claimant elected his remedy because he already received a recovery from a single injury through worker's compensation and to allow further recoveries let claimant have his cake and eat it too.
Hon. Tietelman
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