The Commission reverses a denial of Fund benefits to a worker who asserted she had new injuries to her back and had 6 previous spinal surgeries in a recent period. Robertson v Southwestern Bell Telephone Co., 2016 MO WCLR Lexis 19 (March 15, 2016).
The SIF asserted a defense that the accident was not a prevailing factor in claimant's condition when she slipped in a puddle and fell in September 2009. She had multiple previous back surgeries and had been advised earlier in 2009 when she was placed on restrictions and told she could no longer work. Claimant continued to work for about another 3 years and then pursued another back surgery and then, at age 44, dropped out of the open labor market.
The ALJ found "The only expert to provide a rating is Dr. Margolis, whose opinion is flawed because he considers Claimant's disability as of 2013, which is four years after she reached MMI for the compensable injury and includes factors unrelated to the compensable injury. "
The Commission reversed and found that claimant had sustained new disability from a lumbar strain. The Commission found claimant's expert unrebutted that claimant sustained a new medical "condition" even if her "overall" condition flowed from prior conditions. "We do not find Dr. DeGrange's credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability..... But the relevant question for our purposes is whether--despite the preexisting low back condition--the accident of September 17, 2009, was the prevailing factor in causing any resulting medical condition and disability."
The Commission regarded vocational opinion premised on the notion that claimant needed to lie down unpersuasive and inconsistent with the treating records and lacking proper foundation. The Commission disregarded allegations against the second injury fund based on hearing loss or ADHD due to lack of persuasive evidence on the issue of synergy.
ALJ: Boresi
Atty: Griffiths
Thursday, March 31, 2016
Court remands case when Commission violates due process
Anhalt v Penmac Personnel Services
No. SD 34420
December 19, 2016
The court of appeals found the Commission committed error by not allowing a remand requested by the employer when the Commission on its own raised a new theory on appeal to impose liability based on joint control by a staffing agency. The claimant had never asserted the theory of liability based on joint control or joint benefit by the staffing agency for an injury that did not occur on its property.
The commission never directly addressed the issue of the claimant's appeal of the ALJ's denial of liability based on a theory of statutory employment.
The Commission violated due process under 287.470 by injecting a new issue without an opportunity for the parties to be heard on the issue. The court declined to reach the broader issue whether the Commission had the power to inject its own theories of liability when the specific claim had never been asserted by an party.
**
An onion ring inspector hurt her arm when she fell in parking lot in Springfield, MO in 2009. The Commission reversed a denial of benefits on the defense that claimant failed to prove accident on property owned or controlled by the employer. Anhalt v Penmac Personnel, 2016 Mo WCLR Lexis 23 (March 18, 2016).
Claimant worked for Penmac. Penmac sent her to work at a food plant at Reckitt-Benekiser. Reckitt controlled her activities on the job. Benekiser paid Penmac and Penmac paid her salary. She was hurt on the Reckitt lot while leaving work. The parties stipulated that the property where she fell was owned and controlled by Reckitt, not Penmark.
The ALJ found that while Reckitt may arguably be an statutory employer but Penmac was the only liable employer under the subrogation statute as it was an insured entity. The ALJ found that case controlled by Hager v Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) and denied benefits as claimant did not fall on property owned or controlled by Penmarc. Her remedy was to seek benefits against Reckitt, who for unknown reasons, was dismissed as a party in the case.
The Commission reversed and found claimant provided joint services for both Penmac and Reckitt and as joint employers Penmac was jointly and severally liable under 287.130 for any liability of Reckitt as both companies controlled and benefited from the services provided. As claimant established one employer (Reckitt) owned and controlled the lot, then Penmac became liable too because claimant only had to show liability of one employer to attach liability to joint employers.
The Commission noted that before reform the statute required injuries on premises, which created a body of law creating exceptions under the extended premises doctrine. The commission notes that the 'on premises' statutory requirement was removed after reform and that post-reform cases have awarded compensation for parking lot injuries when the employer owns or controls the property.
The Commission awarded about $40,000 in benefits.
The employer offered no medical expert as a defense. Claimant relied upon opinions of Dr. Paul to establish disability. The Commission concluded the ratings were "somewhat" excessive when claimant denied she had problems working with her wrist and stated that her shoulder condition had resolved. The Commission limited its award of disability to the wrist based on its finding that claimant "downplayed' her condition and that she "might " have difficulties in other work environments. The expert rated PPD to both the shoulder and the wrist.
The commission awarded 15% for the wrist as a result of a radius and styloid fracture and 4 weeks disfigurement for 4 surgical dots.
A dissent found it unnecessary to even reach the issue of extended premises and found claimant had made a submissible case under 287.020.3.
ALJ Mahon
No. SD 34420
December 19, 2016
The court of appeals found the Commission committed error by not allowing a remand requested by the employer when the Commission on its own raised a new theory on appeal to impose liability based on joint control by a staffing agency. The claimant had never asserted the theory of liability based on joint control or joint benefit by the staffing agency for an injury that did not occur on its property.
The commission never directly addressed the issue of the claimant's appeal of the ALJ's denial of liability based on a theory of statutory employment.
The Commission violated due process under 287.470 by injecting a new issue without an opportunity for the parties to be heard on the issue. The court declined to reach the broader issue whether the Commission had the power to inject its own theories of liability when the specific claim had never been asserted by an party.
**
An onion ring inspector hurt her arm when she fell in parking lot in Springfield, MO in 2009. The Commission reversed a denial of benefits on the defense that claimant failed to prove accident on property owned or controlled by the employer. Anhalt v Penmac Personnel, 2016 Mo WCLR Lexis 23 (March 18, 2016).
Claimant worked for Penmac. Penmac sent her to work at a food plant at Reckitt-Benekiser. Reckitt controlled her activities on the job. Benekiser paid Penmac and Penmac paid her salary. She was hurt on the Reckitt lot while leaving work. The parties stipulated that the property where she fell was owned and controlled by Reckitt, not Penmark.
The ALJ found that while Reckitt may arguably be an statutory employer but Penmac was the only liable employer under the subrogation statute as it was an insured entity. The ALJ found that case controlled by Hager v Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) and denied benefits as claimant did not fall on property owned or controlled by Penmarc. Her remedy was to seek benefits against Reckitt, who for unknown reasons, was dismissed as a party in the case.
The Commission reversed and found claimant provided joint services for both Penmac and Reckitt and as joint employers Penmac was jointly and severally liable under 287.130 for any liability of Reckitt as both companies controlled and benefited from the services provided. As claimant established one employer (Reckitt) owned and controlled the lot, then Penmac became liable too because claimant only had to show liability of one employer to attach liability to joint employers.
The Commission noted that before reform the statute required injuries on premises, which created a body of law creating exceptions under the extended premises doctrine. The commission notes that the 'on premises' statutory requirement was removed after reform and that post-reform cases have awarded compensation for parking lot injuries when the employer owns or controls the property.
The Commission awarded about $40,000 in benefits.
The employer offered no medical expert as a defense. Claimant relied upon opinions of Dr. Paul to establish disability. The Commission concluded the ratings were "somewhat" excessive when claimant denied she had problems working with her wrist and stated that her shoulder condition had resolved. The Commission limited its award of disability to the wrist based on its finding that claimant "downplayed' her condition and that she "might " have difficulties in other work environments. The expert rated PPD to both the shoulder and the wrist.
The commission awarded 15% for the wrist as a result of a radius and styloid fracture and 4 weeks disfigurement for 4 surgical dots.
A dissent found it unnecessary to even reach the issue of extended premises and found claimant had made a submissible case under 287.020.3.
ALJ Mahon
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