Cynthia Null v Albany Medical Center dba Northwest Medical Center Association
2018 MO WCLR LEXIS ----
Inj. 12-100528 12/20/2018
https://labor.mo.gov/sites/labor/files/decisions_wc/NullCynthia12-10052812-20-18.pdf
The Commission affirms an award of past and future medical related to a slip and fall in a parking lot that produced knee and ankle injuries and aggravated prior psychiatric conditions and found future treatment was reasonably likely.
The future medical award included treatment for chronic pain management, treatment related to a spinal cord stimulator, psychological counseling and medication for depression and psychological injury.
The past medical in dispute represented about $41,000.
The only issue in dispute was past and future medical.
The parties prior to hearing stipulated to disputed disability of $120,000 related to injuries to the ankle, foot and knee that required ORIF to the ankle and arthroscopy to the knee. The employer had paid more than $281,000 in medical benefits including treatment for pain management and psychiatric care. The fund had stipulated to $60,000 for a disputed PTD. The pro rata rate was substantially below the comp rate.
The Commission found the need for future medical treatment from an admitted accident was established with reasonable probability and as a matter of law rejected the employer's argument that claimant must show the accident was a prevailing factor in the need for medical treatment related to disputed psychiatric care. The Commission found the award of past medical care of about $41,000 was based on credible evidence even though the medical opinion was based in part on claimant's incomplete medical history.
Dr. Schmidt testified claimant's accident aggravated a prior major depressive disorder and caused a new pain disorder. He notes claimant has "unusual physical reactions" and acted "bizarrely." He rated her with a 15% new impairment and attributed an additional 10% to pre-existing. the employer's original expert felt claimant had post traumatic stress disorder among other conditions. The ALJ rejected the expert opinion that claimant had a permanent pain disorder or required medication indefinitely.
The ALJ detailed findings that claimant's prior medical history was 'less than entirely consistent'. The Commission found no lack of intent to deceive but concluded inconsistencies likely flowed from a confused mental state and impact of medication prescribed for her work injury. Claimant describes multiple 'black out' spells attributed to medication from multiple sources. Claimant was regarded as credible about her impairment following the accident.
A concurring opinion felt the alleged error argued by the employer was weakened because the employer had provided care for psychiatric treatment.
The parties reached an agreement prior to hearing that employer agreed to pay $10,000 toward the disputed medical bills irrespective to any decision by the judge and the payment would be credited toward any award above that amount (the total medical in dispute was about $41,000). The ALJ found the employer failed to prove claimant's personal liability had been extinguished and ordered the entire amount.
The 69-page opinion describes prior issues with chronic pain and somatic disorder. She describes post-accident "black-out" spells (related in medication) and "unusual" presentation of pain. The diagnosis included major depressive disorder with pain syndrome with elements of complex regional pain disorder.
Atty: Dickson, Doyle, Shine
Expert: Schmidt , Koprivica, Drieling, Rosenthal, Cordray
Treater: Pronko, Hu, Jura
Friday, December 28, 2018
Wednesday, December 19, 2018
Court finds no contempt remedy for unpaid interest
Smith v Capital Region Medical Center
2018 MO App LEXIS ____
December 18, 2018
WD 81273
https://www.courts.mo.gov/file.jsp?id=134428
The court of appeals affirms a dismissal of a petition to hold the employer in contempt for not paying interest accrued on appeal of a worker's compensation award .
The employer had paid after an award of more than $300,000 in benefits but did not pay accrued interest while the employer appealed the award.
The award was for interest "as required by law." Interest is determined by 287.160.3. The court found the award supported an obligation to award interest.
The employer argued the award was indeterminate and only the Commission had jurisdiction to determine the liablity. The court rejected the arguments.
This was not an "open" claim that compelled exclusive jurisdiction of the Commission and the trial court had the inherent authority to make the calculation of the exact amount due because it is not an outstanding factual issue, even though the amount and interest was not expressly indicated in the award
"Claimant's argument to use civil contempt to support a money judgment is not supported by well-settle law."
The court notes exceptions such as child support cases were distinguishable. The contempt remedy could apply when a party fails to perform other obligations beyond the payment of money such as not providing medical treatment ordered by the commission.
The court notes the employer did not raise the issue in its motion to dismiss that claimant had never reduced the award to a judgment pursuant to 287.500 so there was no judgment for the trial court to consider. The defendant in its motion failed to identify controlling case law to support its argument and improperly cited a per curium decision (footnote 9).
2018 MO App LEXIS ____
December 18, 2018
WD 81273
https://www.courts.mo.gov/file.jsp?id=134428
The court of appeals affirms a dismissal of a petition to hold the employer in contempt for not paying interest accrued on appeal of a worker's compensation award .
" Our courts have long held that Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money....This case offers no reason to depart from that settled principle. "
The employer had paid after an award of more than $300,000 in benefits but did not pay accrued interest while the employer appealed the award.
The award was for interest "as required by law." Interest is determined by 287.160.3. The court found the award supported an obligation to award interest.
The employer argued the award was indeterminate and only the Commission had jurisdiction to determine the liablity. The court rejected the arguments.
This was not an "open" claim that compelled exclusive jurisdiction of the Commission and the trial court had the inherent authority to make the calculation of the exact amount due because it is not an outstanding factual issue, even though the amount and interest was not expressly indicated in the award
"Section 287.160.3 is not recited here, but its terms plainly describe the amount of interest that will accrue on weekly benefit payments, and the date or event after which interest will accrue."
The court found contempt was not available as a remedy to enforce a money judgment. "Claimant's argument to use civil contempt to support a money judgment is not supported by well-settle law."
The court notes exceptions such as child support cases were distinguishable. The contempt remedy could apply when a party fails to perform other obligations beyond the payment of money such as not providing medical treatment ordered by the commission.
The court notes the employer did not raise the issue in its motion to dismiss that claimant had never reduced the award to a judgment pursuant to 287.500 so there was no judgment for the trial court to consider. The defendant in its motion failed to identify controlling case law to support its argument and improperly cited a per curium decision (footnote 9).
Court suggests different standard of review for denied comp cases
Farmer v Treasurer of the State of MO
2018 Mo App. Lexis ___
SD 35637
December 17, 2018
The Court of Appeals affirms a denial of second injury fund benefits in which the ALJ found claimant lacked credibility and his testimony was not trustworthy of belief.
The court raises on its own an issue whether to apply the same criteria to evaluate workers' compensation cases in which the Commission award benefits and decisions which deny benefits and concludes the terms to evaluate awards (v non-awards) may warrant consideration of different standards.
"Perhaps because the word "award" appears so prominently (but not exclusively) in section 287.495 as describing final commission decisions, the division and commission typically title their ultimate decision an "award" whether benefits are granted or denied. This ubiquity is unfortunate because it heightens certain logical difficulties ....
In reviewing final decisions adverse to the claimant – the party with the burden of persuasion – the standard of review set forth in Hampton seems, frankly, nonsensical, and we believe it should be reconsidered for the reasons contained in our high court’s more recent decision in White v. Director of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (stating, "When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party" (internal citation omitted)). However, both the majority and dissenting opinions in Malam v. State, Dep’t of Corr., 492 S.W.3d 926, 928, 930 (Mo. banc 2016), purported to apply the Hampton standard in their differing analyses of the Commission’s affirmance of a decision denying compensation, so we will attempt to apply it here to the best of our ability. "
Claimant appealed and argued substantial evidence of medical expert opinion supported the award absent what he felt was improper admission of evidence of prior convictions for social security fraud. The Court found no reversible error as the exhibits were cumulative as claimant had already admitted to the fraud convictions in his testimony.
"Claimant’s argument fails to appreciate that his credibility was crucial in resolving his claim. It is within the sole province of the Commission "to make such [credibility] findings[,] and we defer to such credibility determinations"
Claimant was a 58 year former chief of police for Hayti Heights who alleged two claims against his employer for a neck injury from breaking up a fight and a stress claim for working long hours. The opinion describes claimant's multiple claims in the past. He pled guilty to making a false statement to obtain social security benefits, and concealing earned wages above the income threshold for disability.
Claimant's own expert, Dr. Driver, reported it was difficult to obtain a consistent story but diagnosed him with a personality disorder. He found the MMPI profile was invalid.
Claimant objected at trial to the admission of certified records from the federal and state courts concerning the prior convictions. The ALJ found the admission of prior conviction was equivocal to support the admission of the documents. Claimant contends the admission of the additional records were irrelevant because he freely admitted the convictions.
The ALJ found claimant failed to prove accident of either a neck injury or psychological condition due to lack of credibility based on inconsistent history.
The erroneous admission of incompetent evidence did not warrant setting aside the award if it was otherwise supported. The court noted the outcome was based on the finding that claimant was not trustworthy and not disregarding objective evidence which would have supported an award.
The employer had paid partial disability settlements in the two claims for neck injury and stress to settle the litigation.
Experts: Volarich, Driver, Shea
2018 Mo App. Lexis ___
SD 35637
December 17, 2018
The Court of Appeals affirms a denial of second injury fund benefits in which the ALJ found claimant lacked credibility and his testimony was not trustworthy of belief.
The court raises on its own an issue whether to apply the same criteria to evaluate workers' compensation cases in which the Commission award benefits and decisions which deny benefits and concludes the terms to evaluate awards (v non-awards) may warrant consideration of different standards.
"Perhaps because the word "award" appears so prominently (but not exclusively) in section 287.495 as describing final commission decisions, the division and commission typically title their ultimate decision an "award" whether benefits are granted or denied. This ubiquity is unfortunate because it heightens certain logical difficulties ....
In reviewing final decisions adverse to the claimant – the party with the burden of persuasion – the standard of review set forth in Hampton seems, frankly, nonsensical, and we believe it should be reconsidered for the reasons contained in our high court’s more recent decision in White v. Director of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (stating, "When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party" (internal citation omitted)). However, both the majority and dissenting opinions in Malam v. State, Dep’t of Corr., 492 S.W.3d 926, 928, 930 (Mo. banc 2016), purported to apply the Hampton standard in their differing analyses of the Commission’s affirmance of a decision denying compensation, so we will attempt to apply it here to the best of our ability. "
Claimant appealed and argued substantial evidence of medical expert opinion supported the award absent what he felt was improper admission of evidence of prior convictions for social security fraud. The Court found no reversible error as the exhibits were cumulative as claimant had already admitted to the fraud convictions in his testimony.
"Claimant’s argument fails to appreciate that his credibility was crucial in resolving his claim. It is within the sole province of the Commission "to make such [credibility] findings[,] and we defer to such credibility determinations"
Claimant was a 58 year former chief of police for Hayti Heights who alleged two claims against his employer for a neck injury from breaking up a fight and a stress claim for working long hours. The opinion describes claimant's multiple claims in the past. He pled guilty to making a false statement to obtain social security benefits, and concealing earned wages above the income threshold for disability.
Claimant's own expert, Dr. Driver, reported it was difficult to obtain a consistent story but diagnosed him with a personality disorder. He found the MMPI profile was invalid.
Claimant objected at trial to the admission of certified records from the federal and state courts concerning the prior convictions. The ALJ found the admission of prior conviction was equivocal to support the admission of the documents. Claimant contends the admission of the additional records were irrelevant because he freely admitted the convictions.
The ALJ found claimant failed to prove accident of either a neck injury or psychological condition due to lack of credibility based on inconsistent history.
The erroneous admission of incompetent evidence did not warrant setting aside the award if it was otherwise supported. The court noted the outcome was based on the finding that claimant was not trustworthy and not disregarding objective evidence which would have supported an award.
The employer had paid partial disability settlements in the two claims for neck injury and stress to settle the litigation.
Experts: Volarich, Driver, Shea
Friday, December 7, 2018
Commission admits missing pages of report under "interest of justice."
The commission allows the employee to introduce additional evidence on appeal of missing pages of a doctor's report under the "furthers the interest of justice" clause of 8 CSR 20-3.030(2)(B) and 287.550 but noted the report was not newly discovered evidence. The SIF did not object to its admission. Harold Williams, dec. Dakota Coast, 2018 MO WCLR LEXIS --, Inj. 00-170204 (Oct. 10, 2018)
The case proceeded solely against the second injury fund with settlement by the employer.
ALJ Dierkes notes claimant had never reached maximum medical improvement of the primary injury prior to his death no so disability had never accrued to trigger fund liability.
The Commission modified the award and found sufficient evidence that claimant had reached maximum medical improvement despite expert opinion that claimant might require additional care. The Commission denied fund liability based on lack of credibility or testimony about synergy. Claimant minimized the extent of a prior back condition (20% settlement) or the ongoing treatment for pain management and exaggerated symptoms beyond what could be reasonably established on a physical basis.
The ALJ noted claimant's expert had erroneous rated for loss of a kidney when claimant had not lost a kidney and had evidence of only a small tumor at the time of his accident.
ALJ Dierkes
Atty: Montgomery, Doner
Experts, Parmet, Cohen (SIF offered no experts)
Wednesday, December 5, 2018
Denial against SIF supported by insufficient expert opinion on synergy
The Commission affirms a denial of compensation benefits against the Second Injury Fund in part based on a failure of proof of a synergistic effect between a left shoulder injury and prior loss of sight of the left eye.
Pierson v The Boeing Company (SIF only)
2018 MO WCLR LEXIS 248
12-0982146, DOLIR 11/28/2018.
Claimant had established synergistic effect between his neck and eye and finds insufficient medical testimony that there might be "more" synergy involving the shoulder and eye. Claimant appeals.
The commission noted that 287.190.2 allow a presumption of continued disability only when the prior disability involved the same member or part of the body.
The commission noted the doctrine of collateral estoppel did not apply in this case against the Fund from disputing the extent of prior disability because the amount of disability existing at the time of the last injury was not litigated in the earlier case. The prior case adjudicated a rating of 35%, although the present case found 25% to be pre-existing as a result of a two level spinal surgery. Claimant asserts the synergy level of 30% in the prior case should be presumed to continue under collateral estoppel, a point the commission did not accept as the prior case addressed synergy between the neck and the eye instead of the shoulder and the eye.
The Commission did not address the issue of res judicata.
The Commission did not address the SIF argument that it had already paid for synergistic effect on the prior eye in one case and was not mandated to pay a second time against a different body part. The Commission noted the SIF argument "could" have some merit "under very particular circumstances" in the future.
The ALJ awarded a 20% load factor.
The Commission further notes its preference to refer to parties as workers rather than claimants. which had been an issue with the prior Commission that the use of the word claimant (jargon used on the Division's own forms) was somehow pejorative.
https://labor.mo.gov/sites/labor/files/decisions_wc/PiersonThomas12-09814611-28-18.pdf
Atty: Chassaing, Lankford
ALJ : Keaveny
Treater: Nogalski
Experts: Woiteshek
ALJ : Keaveny
Treater: Nogalski
Experts: Woiteshek
https://labor.mo.gov/sites/labor/files/decisions_wc/PiersonThomas12-09814611-28-18.pdf
Tuesday, December 4, 2018
Claimant not stuck by stipulation to lower comp rate
T he Commission allowed a claimant to change his stipulation to a compensation rate which would result in manifest injustice when the employer had paid benefits at a higher rate based on actual earnings. Johnson v Value St. Louis Properties, 2018 MO WCLR 247 LEXIS 247 (Nov. 30, 2018)
The case demonstrates the parties are stuck with their stipulations, except when the Commission finds enforcement results in manifest injustice.
In this case, the claimant received TTD benefits at a higher rate for temporary benefits than the rate proposed in the stipulated facts. Notably, the employer had offered a wage statement which would have supported an AWW of $752, then withdrew it when it showed a rate higher than the lower stipulated AWW of $607.90, and then objected to the employee trying to offer it in evidence. The ALJ admitted the statement, but felt claimant was stuck at the lower rate due to the stipulation. The Commission reversed and found claimant entitled to the higher rate.
The ALJ awarded 50% PPD from an accident moving a refrigerator resulting in multiple back surgeries. The ALJ noted claimant had spent time in prison but it was not discernible from the testimony.
The Commission affirmed a denial of about 7 months in TTD benefits and opined the issue was not argued in the brief.
ALJ: Hart
Atty: Hoffman, Flanagan
Experts: Volarich, Dolan, Coyle
Tuesday, November 27, 2018
Failure to prove statutory employment defeats PTD claim against Fund
Lane v Via Boncourier (SIF only)
2018 MO WCLR LEXIS 243
Oct. 31, 2018
The Commission affirms a denial of benefits based on an failure to prove the claimant was an employee under the Act, with a supplemental report to address issues of statutory employment. Claimant had sought permanent and total disability benefits from the Fund.
The ALJ found claimant was self-employed. The claimant sought an appeal and asserted she was a statutory employee.
Claimant entered an employment contract and asserted she was an independent contractor. Her job was to deliver items and use her own vehicle.
The only dispute was "whether employee's injury occurred "on or about the premises of the employer," the second component of the three-prong statutory employment test. The SIF argued that an accident on a public highway was not on or about the employer's premises.
The commission applied strict construction and a dictionary definition of premises and found no intent to extend premises to include public highways and found claimant failed to prove all prongs of statutory employment to show she was a covered employee.
A dissent argued that premises must include roads because couriers did not perform their job function by remaining at one location.
Claimant testified her work involved at times a continuous 40-hour work environment, but the claimant controlled the means and method of her work and chose her routes of delivery. The claimant could choose to work at will and could refuse daily assignments if she so chose. The claimant's means and operation of doing her courier work, which involved delivering blood products and bank documents to various individuals and entities, was at her discretion on the time and route of delivery as well as whether she chose to work that particular day. The claimant was reimbursed $ 14 per hour for her time period worked.
The ALJ noted:
"The claimant is deemed to be self-employed as evidenced by the multitude of facts in this case. The claimant candidly and freely admitted that she was not an employee of Via Bancourier, that she signed documentation to that effect. The claimant further admitted that Via Bancourier represented to her that she was not an employee and therefore not covered under the Workers' Compensation Law. The claimant acknowledged that if she wanted workers' compensation coverage it was her responsibility to provide same. The claimant was not provided any benefits from the employer/insurer beyond the $ 14 per hour agreed upon wage. The claimant was further reimbursed 20 percent of her gasoline expenses for her mileage driven while in the course of her delivery duties. The claimant was further provided a 1099 with no withholdings at the end of every year for her tax records. The claimant testified that for most of the period while engaged with Via Bancourier she was able to work 40 hours per week, this was not guaranteed by Via Bancourier and the claimant could choose to work different hours if she chose. The alleged employer, Via Bancourier, did not execute any right of control on the means and matter of her service as long as the documents that were entrusted to her care were delivered. The duration of the claimant's employment seemed to be at her discretion in that she could choose the hours which she worked. The claimant testified that while engaged as a courier with Via Bancourier there was no expressed prohibition that she could not engage in similar work for other couriers if she so chose. While there is no bright line of delineation of individual facts which determine whether an individual is an employee of an employer, the multitude of facts admitted to by the claimant in this situation describe an environment in which the claimant was self-employed as a courier doing work for Via Bancourier. The claimant acknowledged that she was not within the workers' compensation system as so engaged with Via Bancourier and chose not to avail herself of workers' compensation benefits."
The employer had settled the primary case for an unspecified amount.
The ALJ issued no opinion regarding claimant's evidence supported an award of total benefits.
ALJ Siedlik
Atty: Mayer, Alpough, Hinson
2018 MO WCLR LEXIS 243
Oct. 31, 2018
The Commission affirms a denial of benefits based on an failure to prove the claimant was an employee under the Act, with a supplemental report to address issues of statutory employment. Claimant had sought permanent and total disability benefits from the Fund.
The ALJ found claimant was self-employed. The claimant sought an appeal and asserted she was a statutory employee.
Claimant entered an employment contract and asserted she was an independent contractor. Her job was to deliver items and use her own vehicle.
The only dispute was "whether employee's injury occurred "on or about the premises of the employer," the second component of the three-prong statutory employment test. The SIF argued that an accident on a public highway was not on or about the employer's premises.
The commission applied strict construction and a dictionary definition of premises and found no intent to extend premises to include public highways and found claimant failed to prove all prongs of statutory employment to show she was a covered employee.
A dissent argued that premises must include roads because couriers did not perform their job function by remaining at one location.
Claimant testified her work involved at times a continuous 40-hour work environment, but the claimant controlled the means and method of her work and chose her routes of delivery. The claimant could choose to work at will and could refuse daily assignments if she so chose. The claimant's means and operation of doing her courier work, which involved delivering blood products and bank documents to various individuals and entities, was at her discretion on the time and route of delivery as well as whether she chose to work that particular day. The claimant was reimbursed $ 14 per hour for her time period worked.
The ALJ noted:
"The claimant is deemed to be self-employed as evidenced by the multitude of facts in this case. The claimant candidly and freely admitted that she was not an employee of Via Bancourier, that she signed documentation to that effect. The claimant further admitted that Via Bancourier represented to her that she was not an employee and therefore not covered under the Workers' Compensation Law. The claimant acknowledged that if she wanted workers' compensation coverage it was her responsibility to provide same. The claimant was not provided any benefits from the employer/insurer beyond the $ 14 per hour agreed upon wage. The claimant was further reimbursed 20 percent of her gasoline expenses for her mileage driven while in the course of her delivery duties. The claimant was further provided a 1099 with no withholdings at the end of every year for her tax records. The claimant testified that for most of the period while engaged with Via Bancourier she was able to work 40 hours per week, this was not guaranteed by Via Bancourier and the claimant could choose to work different hours if she chose. The alleged employer, Via Bancourier, did not execute any right of control on the means and matter of her service as long as the documents that were entrusted to her care were delivered. The duration of the claimant's employment seemed to be at her discretion in that she could choose the hours which she worked. The claimant testified that while engaged as a courier with Via Bancourier there was no expressed prohibition that she could not engage in similar work for other couriers if she so chose. While there is no bright line of delineation of individual facts which determine whether an individual is an employee of an employer, the multitude of facts admitted to by the claimant in this situation describe an environment in which the claimant was self-employed as a courier doing work for Via Bancourier. The claimant acknowledged that she was not within the workers' compensation system as so engaged with Via Bancourier and chose not to avail herself of workers' compensation benefits."
The employer had settled the primary case for an unspecified amount.
The ALJ issued no opinion regarding claimant's evidence supported an award of total benefits.
ALJ Siedlik
Atty: Mayer, Alpough, Hinson
Commission affirms denial of injury by occupational disease due to inconsistencies in records
Jessica Timmer v Gilster-Mary Lee
Inj. 14-073185
2018 MO WCLR LEXIS 244
Nov. 8, 2018
The commission affirms a denial of benefits on a failure of proof of injury by occupational disease from performing various cleaning jobs.
Claimant reported only temporary improvement after surgery performed by Dr. Vaught for a single disc level and she requested further care including an additional surgery.
Dr. Crane found the symptoms likely related to a non-occupational injury lifting a camera. He stated spinal symptoms may be spontaneous or from small events such as sneezing.
The ALJ makes detailed findings in a 21 page award noted claimant's testimony was "adversely affected" by inconsistencies in her records, and history, and a belated diagnosis of disc herniation.
ALJ Kasten
Atty: Elfrink, Remley
Experts: Poetz, Crane
Inj. 14-073185
2018 MO WCLR LEXIS 244
Nov. 8, 2018
The commission affirms a denial of benefits on a failure of proof of injury by occupational disease from performing various cleaning jobs.
Claimant reported only temporary improvement after surgery performed by Dr. Vaught for a single disc level and she requested further care including an additional surgery.
Dr. Crane found the symptoms likely related to a non-occupational injury lifting a camera. He stated spinal symptoms may be spontaneous or from small events such as sneezing.
The ALJ makes detailed findings in a 21 page award noted claimant's testimony was "adversely affected" by inconsistencies in her records, and history, and a belated diagnosis of disc herniation.
ALJ Kasten
Atty: Elfrink, Remley
Experts: Poetz, Crane
Claimant failed to prove an accident from shoveling snow.
Richardson v Aramark
2018 MO WCLR LEXIS 245
Nov. 16, 2018
Inj. No. 14-007587
The Commission affirmed a denial of benefits that claimant failed to prove both accident and injury by accident as a result of shoveling snow due to inconsistencies in medical histories and the likelihood that his medical condition was better explained by non-occupational factors of high blood pressure, Type 2 diabetes, coronary artery disease, hyperlipidemia, obesity, and hypertension.
Claimant worked as a custodian and alleged shoveling snow near an entrance way increased his chest pain. Claimant went to the hospital the same day and underwent a cath which identified coronary artery disease but no acute MI. Claimant relied upon expert opinion of Dr. Poetz that he sustained permanent partial disability from a chest strain. Dr. Cantrell testified on behalf of the employer that claimant did not have pain and tenderness to support a diagnosis of chest strain and that any "atypical chest" symptoms were associated with underlying heart disease.
Claimant sought recovery of some unpaid medical bills, among other benefits.
The ALJ found concluded claimant failed to prove accident. Claimant's medical records and "demeanor at hearing" impacted his credibility. Claimant indicated records indicating prior symptoms were false and asserted he had no prior issues between a prior heart attack several years earlier leading up to the work accident. The ALJ noted variances in the amount of snowfall represented significant differences. The ALJ noted Dr. Poetz was not certified to evaluate musculoskeletal conditions and did not fully address the role of the prior heart attack.
The Commission found a failure of proof of accident and injury by accident due to its findings related to claimant's credibility.
ALJ Carlisle
Atty: Niessen, Amsler
Experts: Poetz, Cantrell
2018 MO WCLR LEXIS 245
Nov. 16, 2018
Inj. No. 14-007587
The Commission affirmed a denial of benefits that claimant failed to prove both accident and injury by accident as a result of shoveling snow due to inconsistencies in medical histories and the likelihood that his medical condition was better explained by non-occupational factors of high blood pressure, Type 2 diabetes, coronary artery disease, hyperlipidemia, obesity, and hypertension.
Claimant worked as a custodian and alleged shoveling snow near an entrance way increased his chest pain. Claimant went to the hospital the same day and underwent a cath which identified coronary artery disease but no acute MI. Claimant relied upon expert opinion of Dr. Poetz that he sustained permanent partial disability from a chest strain. Dr. Cantrell testified on behalf of the employer that claimant did not have pain and tenderness to support a diagnosis of chest strain and that any "atypical chest" symptoms were associated with underlying heart disease.
Claimant sought recovery of some unpaid medical bills, among other benefits.
The ALJ found concluded claimant failed to prove accident. Claimant's medical records and "demeanor at hearing" impacted his credibility. Claimant indicated records indicating prior symptoms were false and asserted he had no prior issues between a prior heart attack several years earlier leading up to the work accident. The ALJ noted variances in the amount of snowfall represented significant differences. The ALJ noted Dr. Poetz was not certified to evaluate musculoskeletal conditions and did not fully address the role of the prior heart attack.
The Commission found a failure of proof of accident and injury by accident due to its findings related to claimant's credibility.
ALJ Carlisle
Atty: Niessen, Amsler
Experts: Poetz, Cantrell
Monday, November 26, 2018
GOV APPOINTS ALJ BAKER TO CIRCUIT COURT
"Lorne J. Baker, JD, of Olivette, was appointed as Associate Circuit Judge for the 21st Judicial Circuit, St. Louis County.
Administrative Law Judge Lorne J. Baker was appointed as Associate Circuit Judge for the 21st Judicial Circuit in St. Louis County. He will fill the vacancy created by the appointment of Judge John N. Borbonus III as circuit judge for the 21st Judicial Circuit. Baker was one of three nominees submitted to the Governor by the 21st Circuit Judicial Commission on October 25, 2018.
Judge Baker was appointed on October 31, 2016 as an administrative law judge in St. Louis County. He received his Bachelor of Arts degree in Political Science from the University of Michigan in 1990 and his Juris Doctor degree from the University of Missouri-Columbia School of Law in 1993. After graduating from law school, Judge Baker served as an assistant public defender in St. Louis City from 1994-1999.
Judge Baker is a member of the Lawyers Association of St. Louis, Missouri."
Tuesday, November 13, 2018
Unanimous commission affirms denial of carpal tunnel benefits on diabetes defense
Ricky Volner v Meramec Group
09-040794
2018 MO WCLR LEXIS ___
Nov. 13, 2018
Claimant alleges bilateral hand injuries arising from his work in Sullivan, MO as a mold tech worker for 30 years. He was diagnosed with diabetes before he began to report hand symptoms.
The ALJ found Dr. Schlafly, claimant's expert, did not fully consider all of claimant's job duties, he was not aware of literature pointing to hypertension or chewing tobacco as causative factors, and did not fully address claimant's medical history that claimant had poorly controlled diabetes at the same time he began to develop carpal tunnel symptoms. Dr. Schlafly had performed the release in 2012.
The ALJ notes:
"The evidence shows the surgery in this case was unnecessary because the real cause of Claimant's symptoms were his pre-existing conditions, including diabetic neuropathy" and relied upon medical opinion that carpal tunnel release for diabetes-induced carpal tunnel was not reasonable.
ALJ Teer
Atty: Moreland, Banahan
Experts: Schlafly, Crandall, Lionelli
09-040794
2018 MO WCLR LEXIS ___
Nov. 13, 2018
Claimant alleges bilateral hand injuries arising from his work in Sullivan, MO as a mold tech worker for 30 years. He was diagnosed with diabetes before he began to report hand symptoms.
The ALJ found Dr. Schlafly, claimant's expert, did not fully consider all of claimant's job duties, he was not aware of literature pointing to hypertension or chewing tobacco as causative factors, and did not fully address claimant's medical history that claimant had poorly controlled diabetes at the same time he began to develop carpal tunnel symptoms. Dr. Schlafly had performed the release in 2012.
The ALJ notes:
"The evidence shows the surgery in this case was unnecessary because the real cause of Claimant's symptoms were his pre-existing conditions, including diabetic neuropathy" and relied upon medical opinion that carpal tunnel release for diabetes-induced carpal tunnel was not reasonable.
ALJ Teer
Atty: Moreland, Banahan
Experts: Schlafly, Crandall, Lionelli
Commission reverses SIF award due to lack of synergy
Ashley Fritz v Sam's Club
Inj. No. 08-040135
2018 MO WCLR LEXIS ----
The Commission 3-0 reversed an award for SIF benefits to a 20 year old claimant based on lack of persuasive evidence of synergy.
Claimant sustained an injury in 2008 from lifting bottles of water, received surgical and other treatment for the shoulder and arm, and settle the case for 22.5% BAW.
Claimant sought additional disability for a prior knee condition treated with surgery from school sports. She reported the knee continued to cause some symptoms at the time of her primary accident.
Claimant's expert, Dr. Koprivica, found no evidence of disability. Claimant relied upon a different expert opinion from Dr. Poppa who found prior disability.
The Commission affirms the finding of a prior disability despite the conflicting opinions of claimant's own experts, , although it notes the finding is supported by inference as the judge's opinion had an incomplete sentence.
The Commission reversed a finding of SIF liability based on the absence of credible testimony concerning synergy how the primary arm injury combined with the prior knee condition.
ALJ Rebman
Att: McNamara, Fournier
Inj. No. 08-040135
2018 MO WCLR LEXIS ----
The Commission 3-0 reversed an award for SIF benefits to a 20 year old claimant based on lack of persuasive evidence of synergy.
Claimant sustained an injury in 2008 from lifting bottles of water, received surgical and other treatment for the shoulder and arm, and settle the case for 22.5% BAW.
Claimant sought additional disability for a prior knee condition treated with surgery from school sports. She reported the knee continued to cause some symptoms at the time of her primary accident.
Claimant's expert, Dr. Koprivica, found no evidence of disability. Claimant relied upon a different expert opinion from Dr. Poppa who found prior disability.
The Commission affirms the finding of a prior disability despite the conflicting opinions of claimant's own experts, , although it notes the finding is supported by inference as the judge's opinion had an incomplete sentence.
The Commission reversed a finding of SIF liability based on the absence of credible testimony concerning synergy how the primary arm injury combined with the prior knee condition.
"Dr. Poppa does not explain how or in what way the knee injury combined....Dr. Poppa's conclusory statements are insufficient to persuasively establish the fact of synergy."
ALJ Rebman
Att: McNamara, Fournier
Claimant fails to prove flu shot caused her ataxia
Shanks v Heartland Regional Medical Center
2018 MO WCLR LEXIS 239
13-100429
Oct. 18, 2018
The Commission affirms a denial of benefits, but issues a supplemental opinion.
Claimant alleges injuries from a flu shot in 2013 including both physical and psychological injuries. The employer provided no benefits. The hearing did not address issues of permanent partial or permanent total disability.
Claimant had a flu shot at her employer's direction. Claimant reports she developed weakness and various neurologic symptoms. She had treatment in the past for fibromyalgia, anxiety and various orthopedic medical conditions. Claimant reports she has been unemployable since 2013.
The commission notes while a flu shot may be compensable, claimant failed to show physical injury or credible medical evidence of causation.
"We have previously found that where the employer creates the need for the flu vaccine to prevent infection of patients and other employees, that the hazard or risk that may result from a flu vaccination is related to employment. Karen Doyle v. Lakeland Regional Hospital, Injury No. 05-141082, (LIRC, Dec. 8, 2011) A vaccination resulting in objective symptoms of injury may be considered an unexpected traumatic event. However, unlike the case of Karen Doyle, there are no objective symptoms of injury shown to have resulted from the employee's alleged accident in the matter before us."
Dr. Koprivica testified on claimant's behalf that the flu shot caused various medical conditions including a conversion disorder. Dr. Claiborn, a psychologist, testified she had major depressive disorder and somatic symptom disorder. She scored in the 99th percentile on the hysteria scale.
The ALJ noted:
"I find Claimant failed to prove she sustained an injury by accident on or about October 1, 2013 arising out of in the course of employment for Employer. I find and conclude Claimant failed to prove that she sustained an accident that was the prevailing factor in causing both the medical condition and disability. I find and conclude Claimant failed to prove that she sustained an accident that was the prevailing factor in causing an injury. These conclusions are supported by the following:
I find causation of Claimant's alleged injury is not within common knowledge or experience and that expert testimony is required to establish causation of Claimant's alleged injury. Knipp, 969 .S.W.2d at 239; Royal, 194 S.W.3d at 378.
Claimant's treating doctors failed to diagnose a physical injury caused by Claimant's October 1, 2013 flu shot. The flu shot was not mentioned in Dr. Kempton's October 2, 2013 records. Dr. Kempton did not conclude Claimant's October 1, 2013 flu shot caused her symptoms and complaints. He did not diagnose an injury caused by the flu shot."
The defense relied upon expert opinion that the flu shot did not cause ataxia.
The ALJ found the shot did not cause the "tumbling of pain disorders" claimant attributes to the vaccination.
The Commission in its award noted the 93-page award by ALJ Miner were accompanied without commentary about what the ALJ considered important.
The Commission notes:
"There is some evidence according to the opinions of Dr. Koprivica and Dr. Claiborn that employee's manifestation of physical symptoms are the result of a psychological, conversion or somatoform disorder. The theory appears to be that the psychological disorder was triggered by the physical injury (an adverse reaction to the flu vaccine on October 1, 2013). Dr. Claiborn described the physical reactions to the flu vaccine as the "initiating" event to her somatoform disorder. Transcript, page 419-420. First, the legislature has instructed that, "an injury is not compensable because work was a triggering or precipitating factor." 287.200. RSmo.We do not mean to parse the doctor's words, but his meaning is somewhat unclear. If Dr. Claiborn's use of the word "initiating" was meant to suggest the vaccine was a triggering or precipitating event, the statute would not permit us to find the somatoform disorder as a compensable injury. If, however, he intended to declare the flu shot as the prevailing factor in the somatoform disorder, we have found this opinion unpersuasive.
Regardless of the nuances of the doctor's language, we are unable to conclude from the preponderance of the evidence that the flu vaccination (from which no physical injury or medical condition has been clearly diagnosed) was the prevailing, i.e. the primary factor, in relation to any other factors in causing a somatoform disorder. It is not "reasonably apparent, upon consideration of all the circumstances," that the work event is the prevailing factor in causing any injury -- physical or psychological."
Atty: Smith, Hoffmeister
Experts: Barkman, Logan,
2018 MO WCLR LEXIS 239
13-100429
Oct. 18, 2018
The Commission affirms a denial of benefits, but issues a supplemental opinion.
Claimant alleges injuries from a flu shot in 2013 including both physical and psychological injuries. The employer provided no benefits. The hearing did not address issues of permanent partial or permanent total disability.
Claimant had a flu shot at her employer's direction. Claimant reports she developed weakness and various neurologic symptoms. She had treatment in the past for fibromyalgia, anxiety and various orthopedic medical conditions. Claimant reports she has been unemployable since 2013.
The commission notes while a flu shot may be compensable, claimant failed to show physical injury or credible medical evidence of causation.
"We have previously found that where the employer creates the need for the flu vaccine to prevent infection of patients and other employees, that the hazard or risk that may result from a flu vaccination is related to employment. Karen Doyle v. Lakeland Regional Hospital, Injury No. 05-141082, (LIRC, Dec. 8, 2011) A vaccination resulting in objective symptoms of injury may be considered an unexpected traumatic event. However, unlike the case of Karen Doyle, there are no objective symptoms of injury shown to have resulted from the employee's alleged accident in the matter before us."
Dr. Koprivica testified on claimant's behalf that the flu shot caused various medical conditions including a conversion disorder. Dr. Claiborn, a psychologist, testified she had major depressive disorder and somatic symptom disorder. She scored in the 99th percentile on the hysteria scale.
The ALJ noted:
"I find Claimant failed to prove she sustained an injury by accident on or about October 1, 2013 arising out of in the course of employment for Employer. I find and conclude Claimant failed to prove that she sustained an accident that was the prevailing factor in causing both the medical condition and disability. I find and conclude Claimant failed to prove that she sustained an accident that was the prevailing factor in causing an injury. These conclusions are supported by the following:
I find causation of Claimant's alleged injury is not within common knowledge or experience and that expert testimony is required to establish causation of Claimant's alleged injury. Knipp, 969 .S.W.2d at 239; Royal, 194 S.W.3d at 378.
Claimant's treating doctors failed to diagnose a physical injury caused by Claimant's October 1, 2013 flu shot. The flu shot was not mentioned in Dr. Kempton's October 2, 2013 records. Dr. Kempton did not conclude Claimant's October 1, 2013 flu shot caused her symptoms and complaints. He did not diagnose an injury caused by the flu shot."
The defense relied upon expert opinion that the flu shot did not cause ataxia.
The ALJ found the shot did not cause the "tumbling of pain disorders" claimant attributes to the vaccination.
The Commission in its award noted the 93-page award by ALJ Miner were accompanied without commentary about what the ALJ considered important.
The Commission notes:
"There is some evidence according to the opinions of Dr. Koprivica and Dr. Claiborn that employee's manifestation of physical symptoms are the result of a psychological, conversion or somatoform disorder. The theory appears to be that the psychological disorder was triggered by the physical injury (an adverse reaction to the flu vaccine on October 1, 2013). Dr. Claiborn described the physical reactions to the flu vaccine as the "initiating" event to her somatoform disorder. Transcript, page 419-420. First, the legislature has instructed that, "an injury is not compensable because work was a triggering or precipitating factor." 287.200. RSmo.We do not mean to parse the doctor's words, but his meaning is somewhat unclear. If Dr. Claiborn's use of the word "initiating" was meant to suggest the vaccine was a triggering or precipitating event, the statute would not permit us to find the somatoform disorder as a compensable injury. If, however, he intended to declare the flu shot as the prevailing factor in the somatoform disorder, we have found this opinion unpersuasive.
Regardless of the nuances of the doctor's language, we are unable to conclude from the preponderance of the evidence that the flu vaccination (from which no physical injury or medical condition has been clearly diagnosed) was the prevailing, i.e. the primary factor, in relation to any other factors in causing a somatoform disorder. It is not "reasonably apparent, upon consideration of all the circumstances," that the work event is the prevailing factor in causing any injury -- physical or psychological."
Atty: Smith, Hoffmeister
Experts: Barkman, Logan,
Friday, October 26, 2018
Getting kicked in waiting room during doctor's visit was not a natural and probable injury
Schoen v Mid Mo Mental Health
DOLIR 10-10-2018
2018 MO WCLR LEXIS 232
Inj. 09-034298
The Commission in a 2-1 decision reverses an award of PTD benefits for injuries sustained when a doctor seeing claimant for a comp injury from exposure to ant spray tried to kick a dog in the waiting room and inadvertently struck the claimant's leg and caused her to fall.
Claimant alleges injuries to the neck, back, shoulder and knee. At the time of the accident claimant was a 68 year old charge nurse. She described multiple orthopedic problems.
The Commission found the injuries sustained at the doctor's office were not in course of treatment by the doctor. The dissent argued that injuries sustained were all considered to be natural and probable consequences of the original accident.
The parties did not brief whether the injuries were sustained as a result of the doctor's visit were the result of the occupational exposure to Cypermethrin.
Atty: Truman Allen, Tim Wilson, Herrmann, McCain
Experts: Volarich, Hyers, Paletta
PTD against fund based on primary injury of lumbar strain
Hillyard v American Staffing
2018 MO WCLR LEXIS 233
Inj. No. 12-030075
Oct. 10, 2018
The Commission affirms a 2-1 award of permanent total against the second injury fund.
The defense relied upon expert opinion that claimant sustained a lumbar strain in the primary injury superimposed on severe back pain for years and a dissent found the claimant lacked credibility to establish he was unable to maintain gainful employment.
The 63-year old claimant alleges he twisted his back while moving boxes. He declined a prior recommendation for back surgery. Claimant relies upon opinion of Dr. Volarich that he aggravated prior spinal conditions. The ALJ found claimant sustained 15% disability on the basis of a strain.
ALJ: Teer
Atty: Cox, Ahrenbach
Experts: Volarich, Lalk, Cantrell
2018 MO WCLR LEXIS 233
Inj. No. 12-030075
Oct. 10, 2018
The Commission affirms a 2-1 award of permanent total against the second injury fund.
The defense relied upon expert opinion that claimant sustained a lumbar strain in the primary injury superimposed on severe back pain for years and a dissent found the claimant lacked credibility to establish he was unable to maintain gainful employment.
The 63-year old claimant alleges he twisted his back while moving boxes. He declined a prior recommendation for back surgery. Claimant relies upon opinion of Dr. Volarich that he aggravated prior spinal conditions. The ALJ found claimant sustained 15% disability on the basis of a strain.
ALJ: Teer
Atty: Cox, Ahrenbach
Experts: Volarich, Lalk, Cantrell
Temporary award for aggravation of spinal condition
Haag v Terry Snelling
2018 MO WCLR LEXIS 234
DOLIR 10-10-2018
Inj. No. 17-041850
The Commission 3-0 affirms a temporary award for treatment for the low back following a 2017 accident in which the claimant alleges he hurt his back from lifting concrete and developed new radiculopathy.
The defense relied upon an expert that the 39 year claimant sustained a strain or sprain. The ALJ found claimant's symptoms distinguishable from prior episodes of back pain treated with a chiropractor who had never diagnosed radiculopathy. Claimant could not identify a specific date of accident. Dr. Hess recommended a course of treatment that might include surgery.
ALK Siedlik
Atty: Kolich
Experts: Hess, Ebelke
2018 MO WCLR LEXIS 234
DOLIR 10-10-2018
Inj. No. 17-041850
The Commission 3-0 affirms a temporary award for treatment for the low back following a 2017 accident in which the claimant alleges he hurt his back from lifting concrete and developed new radiculopathy.
The defense relied upon an expert that the 39 year claimant sustained a strain or sprain. The ALJ found claimant's symptoms distinguishable from prior episodes of back pain treated with a chiropractor who had never diagnosed radiculopathy. Claimant could not identify a specific date of accident. Dr. Hess recommended a course of treatment that might include surgery.
ALK Siedlik
Atty: Kolich
Experts: Hess, Ebelke
Monday, October 8, 2018
Commission finds PTD against SIF with no permanent restrictions from prior surgeons
Simmons v Mercy Hospital
Inj No. 12-001723
DOLIR 10-4-2018
The Commission affirms a 2-1 PTD award against the second injury fund for a primary shoulder injury combined with two prior knee disabilities which previously limited the claimant to sedentary work.
A 64 year old office worker slipped and fell on a laminated floor in 2012. She underwent two shoulder surgeries including ORIF for a humerus fracture. She declined a third surgery to repair a cuff tear because of a "low probability" of success. She was awarded social security disability benefits on the basis of the medical records related to the shoulder. The ALJ awarded 45% PPD, which match the settlement with the employer.
Her expert concluded she had pre-existing disability of 30% of each knee related to prior internal derangement that required surgeries. Her disability from 2 to 3 extremities demonstrated a synergistic effect.
The second injury fund relied upon vocational expert who performed a records review and found no disability based on medical opinion imposing no prior permanent restrictions. The Fund offered no other ratings.
The ALJ noted the complaints were "legitimate" and reflected a desire to maintain employment for "financial and social reasons." The absence of prior restrictions did not preclude an award of SIF total benefits as it did not credit other medical evidence or claimant's own testimony about self-imposed limitations. Claimant testified she did not plan to retire until 65.
A dissenting commissioner would have modified the ALJ award from PTD to PPD against the Fund and found the medical records which did not show restrictions more persuasive than claimant's testimony about her limitations.
The employer settled the case before a final hearing. The employer had lost a previous temporary award in 2012 when it contested the compensability of the claim.
ALJ Boresi
Atty: Wagner, Hudson
Experts: Musich, Gonzales, Hughes
Inj No. 12-001723
DOLIR 10-4-2018
The Commission affirms a 2-1 PTD award against the second injury fund for a primary shoulder injury combined with two prior knee disabilities which previously limited the claimant to sedentary work.
A 64 year old office worker slipped and fell on a laminated floor in 2012. She underwent two shoulder surgeries including ORIF for a humerus fracture. She declined a third surgery to repair a cuff tear because of a "low probability" of success. She was awarded social security disability benefits on the basis of the medical records related to the shoulder. The ALJ awarded 45% PPD, which match the settlement with the employer.
Her expert concluded she had pre-existing disability of 30% of each knee related to prior internal derangement that required surgeries. Her disability from 2 to 3 extremities demonstrated a synergistic effect.
The second injury fund relied upon vocational expert who performed a records review and found no disability based on medical opinion imposing no prior permanent restrictions. The Fund offered no other ratings.
The ALJ noted the complaints were "legitimate" and reflected a desire to maintain employment for "financial and social reasons." The absence of prior restrictions did not preclude an award of SIF total benefits as it did not credit other medical evidence or claimant's own testimony about self-imposed limitations. Claimant testified she did not plan to retire until 65.
A dissenting commissioner would have modified the ALJ award from PTD to PPD against the Fund and found the medical records which did not show restrictions more persuasive than claimant's testimony about her limitations.
The employer settled the case before a final hearing. The employer had lost a previous temporary award in 2012 when it contested the compensability of the claim.
ALJ Boresi
Atty: Wagner, Hudson
Experts: Musich, Gonzales, Hughes
Wednesday, August 29, 2018
Award for fall in employer owned parking garage
McDowell v St. Lukes Hospital of Kansas City
DOLIR 8-22-2018 Fowler
Atty: Coopae, Stretz
The commission in a 2-1 decision affirms an award of benefits when a 68 year old scientist caught a two wheel cart on the employer's doorway and fell and was awarded nearly $58,000 in benefits for a wrist fracture.
Claimant alleges she fell on a employer owned parking garage and she could identify no defect or hazard with the property. Claimant had prior bilateral hip problems, one hip replacement before the accident, and was a "fall" hazard. She claims another employee obstructed her path and when she turned the cart she carried behind her caught on the door frame and she fell on her wrist. The employer denied the claim and she sought treatment on her own for a distal radius fracture.
The employer asserted an idiopathic fall defense, but offered on no evidence of prior idiopathic falls but evidence that she was a fall hazard. She made a statement "with her artificial hip" that she fell. The employer further argued that the cart was a personal apparatus and that its role in the fall was a risk unconnected to her employment.
The ALJ found that because the cart contained work related items necessary for her job then it was not a purely personal item disconnected to employment risks. She testified her supervisor suggested that she use the cart. The commission relied upon Narens for the concept that exposure to walking in a congested area at the time of the accident was a unique occupational risk. Narens involved both congestion and an uneven and broken surface.
The ALJ noted that disfigurement was not raised as an issue nor was evidence introduced on that issue.
DOLIR 8-22-2018 Fowler
Atty: Coopae, Stretz
The commission in a 2-1 decision affirms an award of benefits when a 68 year old scientist caught a two wheel cart on the employer's doorway and fell and was awarded nearly $58,000 in benefits for a wrist fracture.
Claimant alleges she fell on a employer owned parking garage and she could identify no defect or hazard with the property. Claimant had prior bilateral hip problems, one hip replacement before the accident, and was a "fall" hazard. She claims another employee obstructed her path and when she turned the cart she carried behind her caught on the door frame and she fell on her wrist. The employer denied the claim and she sought treatment on her own for a distal radius fracture.
The employer asserted an idiopathic fall defense, but offered on no evidence of prior idiopathic falls but evidence that she was a fall hazard. She made a statement "with her artificial hip" that she fell. The employer further argued that the cart was a personal apparatus and that its role in the fall was a risk unconnected to her employment.
The ALJ found that because the cart contained work related items necessary for her job then it was not a purely personal item disconnected to employment risks. She testified her supervisor suggested that she use the cart. The commission relied upon Narens for the concept that exposure to walking in a congested area at the time of the accident was a unique occupational risk. Narens involved both congestion and an uneven and broken surface.
The ALJ noted that disfigurement was not raised as an issue nor was evidence introduced on that issue.
Tuesday, August 28, 2018
Court equates notice of accident as notice of latent back "injury"
The court of appeals affirmed an award of benefits and rejected the employer's notice defense when Jones reported an accident but did not initially provided notice of a back injury 2 1/2 months later. Harley-Davidson Motor Co. v Kenneth Jones, WD 81155 (Aug 22, 2018).
Jones alleges in 2011 he twisted his body when he was jerked while handling a pneumatic gun used to assemble motorcycle parts. He was initially diagnosed with an elbow sprain and reported he aggravated prior medical conditions involving his arm and shoulder. Claimant states the next day he began to experience back pain and about 10 weeks later. He went to an emergency room because his back pain became intolerable. A doctor concluded the torque accident was the prevailing factor in pain despite prior spondylolisthesis. Claimant sought treatment on his own when the employer refused to provide care for the back. The commission awarded $39,205.64.
The employer denied any injuries to the BAW and asserted a notice defense because claimant did not provide notice of the address of the person injured as required by 287.420 or the nature of the injury as claimant did not report a "back" injury. The court of appeals found that 287.420 requirement to provide notice of the "injury" does not require notice of the "injured' body part, but notice of a "work-related injury" and of an "accident." The court distinguished the case from Soos v Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000). in which the employee provided no notice of an accident for 2 months which allowed no opportunity to investigate the circumstances of the case. The court notes Harley-Davidson had knowledge of a work-related connection when the employer had actual knowledge of the accident and claimant advised the employer his back hurt after the doctor told him the condition was work related. The court notes the employer took no further action to timely investigate the claim or to minimize any exacerbating of disability.
The employer argued the Commission did not make specific findings with an evidentiary basis by deferring to a finding that does not exist when it noted the ALJ made implicit findings of credibility. The court notes other portions of the award in which the ALJ expressly found claimant credible.
Hon. Gabbert.
Jones alleges in 2011 he twisted his body when he was jerked while handling a pneumatic gun used to assemble motorcycle parts. He was initially diagnosed with an elbow sprain and reported he aggravated prior medical conditions involving his arm and shoulder. Claimant states the next day he began to experience back pain and about 10 weeks later. He went to an emergency room because his back pain became intolerable. A doctor concluded the torque accident was the prevailing factor in pain despite prior spondylolisthesis. Claimant sought treatment on his own when the employer refused to provide care for the back. The commission awarded $39,205.64.
The employer denied any injuries to the BAW and asserted a notice defense because claimant did not provide notice of the address of the person injured as required by 287.420 or the nature of the injury as claimant did not report a "back" injury. The court of appeals found that 287.420 requirement to provide notice of the "injury" does not require notice of the "injured' body part, but notice of a "work-related injury" and of an "accident." The court distinguished the case from Soos v Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000). in which the employee provided no notice of an accident for 2 months which allowed no opportunity to investigate the circumstances of the case. The court notes Harley-Davidson had knowledge of a work-related connection when the employer had actual knowledge of the accident and claimant advised the employer his back hurt after the doctor told him the condition was work related. The court notes the employer took no further action to timely investigate the claim or to minimize any exacerbating of disability.
The employer argued the Commission did not make specific findings with an evidentiary basis by deferring to a finding that does not exist when it noted the ALJ made implicit findings of credibility. The court notes other portions of the award in which the ALJ expressly found claimant credible.
Hon. Gabbert.
Monday, August 27, 2018
No comp $ for combat volleyball game
Wilkerson v CMMG
DOLIR Aug 22, 2018 Dierkes
The parties disputed whether claimant sustained a compensable accident in 2013 or provide notice. Claimant hurt his shoulder playing volleyball on company property during an unpaid lunch and indicated the activity was known and encouraged by his employers.
The ALJ denied benefits as a recreational activity based on 287.120.7. Claimant offered no evidence that his actions fell within any of the three statutory exceptions.
The ALJ excluded a forensic report based on a hearsay objection.
A concurring commissioner noted the exclusion from comp coverage did not bar any other potential civil remedies.
Atty: Montgomery,
Experts: Russell, Cohen, Leonard
DOLIR Aug 22, 2018 Dierkes
The parties disputed whether claimant sustained a compensable accident in 2013 or provide notice. Claimant hurt his shoulder playing volleyball on company property during an unpaid lunch and indicated the activity was known and encouraged by his employers.
The ALJ denied benefits as a recreational activity based on 287.120.7. Claimant offered no evidence that his actions fell within any of the three statutory exceptions.
The ALJ excluded a forensic report based on a hearsay objection.
A concurring commissioner noted the exclusion from comp coverage did not bar any other potential civil remedies.
Atty: Montgomery,
Experts: Russell, Cohen, Leonard
Commission strips pre-judgment interest on medical fee dispute
The Commission affirmed a default award for the balance on a medical bill of a partially paid charge for an MRI, attorney's fees, and reversed an award for pre-judgment interest.
The claimant required an MRI. The employer paid about 1/3 of the original charge of $3598.40 for an MRI. The balance remained unpaid 811 days later at the time of the hearing. The provider put forth its own evidence that it regarded its fees as reasonable. The employer failed to appear at the hearing to defend the case. The balance was awarded.
The ALJ awarded an additional $750 in legal fees at $250 an hour and found the case was defended on unreasonable grounds when the defense did not appear. Counsel indicated his own rate was reasonable.
The ALJ awarded an additional $480.60 in interest.
The Commission found no statutory basis to award prejudgment interest under 287.140 for medical fee disputes, although prejudgment interest could be awarded in other contexts.
The employer contends its notice was deficient as the case was set in less than 30 days before its answer was due, and the division's notes indicated it would not be set for 8 weeks and then set in 24 days. A 2-1 majority found that the employer had "due time to act" and basically waived any objections to the earlier setting based on the confusing nature of the notice provided by the Division. One commissioner would have remanded the case to determine whether the employer had good cause for its failure to appear.
Goss v City of Crestwood Fire Department (SLAIT) , DOLR 8-16-2018
https://labor.mo.gov/sites/labor/files/decisions_wc/GossWendell14-101759081618.pdf
The claimant required an MRI. The employer paid about 1/3 of the original charge of $3598.40 for an MRI. The balance remained unpaid 811 days later at the time of the hearing. The provider put forth its own evidence that it regarded its fees as reasonable. The employer failed to appear at the hearing to defend the case. The balance was awarded.
The ALJ awarded an additional $750 in legal fees at $250 an hour and found the case was defended on unreasonable grounds when the defense did not appear. Counsel indicated his own rate was reasonable.
The ALJ awarded an additional $480.60 in interest.
The Commission found no statutory basis to award prejudgment interest under 287.140 for medical fee disputes, although prejudgment interest could be awarded in other contexts.
The employer contends its notice was deficient as the case was set in less than 30 days before its answer was due, and the division's notes indicated it would not be set for 8 weeks and then set in 24 days. A 2-1 majority found that the employer had "due time to act" and basically waived any objections to the earlier setting based on the confusing nature of the notice provided by the Division. One commissioner would have remanded the case to determine whether the employer had good cause for its failure to appear.
Goss v City of Crestwood Fire Department (SLAIT) , DOLR 8-16-2018
https://labor.mo.gov/sites/labor/files/decisions_wc/GossWendell14-101759081618.pdf
Commission affirms award for claimant's failure to prove covered employee
Claimant in 2011 crushed his finger in the course of an installation job for the employer's customers. Claimant failed to prove he was an employee under section 287.020.1. The commission affirmed a denial of benefits but on different grounds. Densmore v Barnes Industrial Group, Inj. No. 11-076364 (Aug 22, 2018)
The commission found claimant established a contact of hire at the time of the accident although he was still negotiating terms of his prospective full-time work for the employer. The parties had agreed that claimant would perform work at $50 for an installation job. The parties had not worked out other details such as paid vacation or supplying a cell phone.
The commission found claimant failed to establish all elements of a "right to control" test. Claimant had the burden to show a right to control through (1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right of discharge, (5) the method of payment (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the alleged employer, and (8) the employment contract. The commission noted insufficient factual findings on facts 1, 2, 4, and 6 to carry claimant's burden of proof.
A dissent argued that the employee established he was a person in the service of the employer and the employer had the evidentiary burden to show a lack of controllable service. The dissent asserts strict construction requires the employee's proof of "service" in 287.020.1 but did not require further require proof of "controllable" service under the right to control multi-part test relied upon by the majority.
Claimant was paid a $20 higher hourly rate for bringing his own tools. He did not complete any IRS paperwork for his employment. He never signed a document about his job description. The job was scheduled around his regular employment. The ALJ noted the employer had no right to control the terms of claimant's job performance as his employer relied entirely upon claimant's expertise to perform the job.
The commission found claimant established a contact of hire at the time of the accident although he was still negotiating terms of his prospective full-time work for the employer. The parties had agreed that claimant would perform work at $50 for an installation job. The parties had not worked out other details such as paid vacation or supplying a cell phone.
The commission found claimant failed to establish all elements of a "right to control" test. Claimant had the burden to show a right to control through (1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right of discharge, (5) the method of payment (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the alleged employer, and (8) the employment contract. The commission noted insufficient factual findings on facts 1, 2, 4, and 6 to carry claimant's burden of proof.
A dissent argued that the employee established he was a person in the service of the employer and the employer had the evidentiary burden to show a lack of controllable service. The dissent asserts strict construction requires the employee's proof of "service" in 287.020.1 but did not require further require proof of "controllable" service under the right to control multi-part test relied upon by the majority.
Claimant was paid a $20 higher hourly rate for bringing his own tools. He did not complete any IRS paperwork for his employment. He never signed a document about his job description. The job was scheduled around his regular employment. The ALJ noted the employer had no right to control the terms of claimant's job performance as his employer relied entirely upon claimant's expertise to perform the job.
ALJ Baker
Atty Trefts, Banton
Treater: Polenini
Atty Trefts, Banton
Treater: Polenini
Friday, August 24, 2018
Cornejo named new commissioner
Robert Cornejo was appointed as the public member, and chair, of the Labor and Industrial Relations Commission (LIRC) in August 2018.
His bio is listed as:
"A 2001 graduate of Hazelwood Central, Cornejo graduated from Washington University in St. Louis with a degree in Political Science with a second major in International Business. In 2008, Cornejo earned his J.D. from University of Missouri- School of Law. Prior to his appointment to the LIRC, Cornejo represented the 64th District (St. Charles and Lincoln Counties) as a state representative, from 2012-2018. He was previously a member of the Kespohl and Cornejo, LLC law firm. In 2004, Cornejo interned for U.S. Senator Jim Talent's St. Louis office. He is an active member in his church, Zion Lutheran Church in Harvester. Born in St Louis County, Cornejo currently lives in St. Peters with his wife. They have a son and two daughters."
His former law firm describes him:
Robert became an advocate for his district and helped co-write the first comprehensive overhaul of the state criminal code in nearly 35 years. After rising through the ranks, Robert spent the 2014 legislative session as Chairman of the House Civil and Criminal Proceedings Committee. The next legislative session saw Rep. Cornejo become Chairman of the House Judiciary Committee. In just one year as Chairman, major reforms were passed including a comprehensive revision of the state expungement laws as well as passing a new sentencing structure for juveniles that are convicted to first degree murder.
It further notes:
Robert is also an award-winning homebrewer of beer.
He replaces John Larsen, who is a 1980 SLU graduate. His appointed term expired in June 2018.
His appointment still requires the consent of the Senate.
https://themissouritimes.com/53219/cornejo-appointed-to-labor-commission-resigns-seat/
His bio is listed as:
"A 2001 graduate of Hazelwood Central, Cornejo graduated from Washington University in St. Louis with a degree in Political Science with a second major in International Business. In 2008, Cornejo earned his J.D. from University of Missouri- School of Law. Prior to his appointment to the LIRC, Cornejo represented the 64th District (St. Charles and Lincoln Counties) as a state representative, from 2012-2018. He was previously a member of the Kespohl and Cornejo, LLC law firm. In 2004, Cornejo interned for U.S. Senator Jim Talent's St. Louis office. He is an active member in his church, Zion Lutheran Church in Harvester. Born in St Louis County, Cornejo currently lives in St. Peters with his wife. They have a son and two daughters."
His former law firm describes him:
Robert became an advocate for his district and helped co-write the first comprehensive overhaul of the state criminal code in nearly 35 years. After rising through the ranks, Robert spent the 2014 legislative session as Chairman of the House Civil and Criminal Proceedings Committee. The next legislative session saw Rep. Cornejo become Chairman of the House Judiciary Committee. In just one year as Chairman, major reforms were passed including a comprehensive revision of the state expungement laws as well as passing a new sentencing structure for juveniles that are convicted to first degree murder.
It further notes:
Robert is also an award-winning homebrewer of beer.
He replaces John Larsen, who is a 1980 SLU graduate. His appointed term expired in June 2018.
His appointment still requires the consent of the Senate.
https://themissouritimes.com/53219/cornejo-appointed-to-labor-commission-resigns-seat/
Wednesday, August 22, 2018
Classmate of claimant awards total as matter of necessity.
The Commission in a 2-1 decision affirms a SIF award of total disability based on a combination of various orthopedic conditions. Claimant's primary injury was a 2008 knee injury that resulted in a partial meniscectomy. Nivens v Interstate Brands, 2018 MO WCLR LEXIS (08-102662)
Claimant, 69, failed to show his need for future treatment was reasonably probable due to the work injury. He was not awarded medical bills because he sought treatment on his own. The ALJ found the orthopedists more credible that claimant's need for future medical did not arise from the accident compared to opinion of claimant's expert, Dr. Cohen. Several experts indicated he was not an immediate candidate for a total knee replacement.
The dissent suggested claimant failed to prove he was unable to compete in the open labor market and his retirement was voluntary and that vocational opinion indicated that he was employable in the open labor market.
Commissioner Chick provided the "tie" splitting vote as a matter of necessity and disclosed that he was a classmate of the claimant.
In a companion case, Inj. No. 07-002739, a 2-0 decision found claimant failed to prove PTD against the fund and noted his prior conditions were not disabling to become an obstacle or impediment to employment. Claimant was awarded PPD for a wrist injury but not for a 2007 knee injury. Commissioner Chick did not participate in that decision.
Experts Weimholt, Cohen, Hughes, Lux, Clymer
Treater : Bal
Claimant, 69, failed to show his need for future treatment was reasonably probable due to the work injury. He was not awarded medical bills because he sought treatment on his own. The ALJ found the orthopedists more credible that claimant's need for future medical did not arise from the accident compared to opinion of claimant's expert, Dr. Cohen. Several experts indicated he was not an immediate candidate for a total knee replacement.
The dissent suggested claimant failed to prove he was unable to compete in the open labor market and his retirement was voluntary and that vocational opinion indicated that he was employable in the open labor market.
Commissioner Chick provided the "tie" splitting vote as a matter of necessity and disclosed that he was a classmate of the claimant.
In a companion case, Inj. No. 07-002739, a 2-0 decision found claimant failed to prove PTD against the fund and noted his prior conditions were not disabling to become an obstacle or impediment to employment. Claimant was awarded PPD for a wrist injury but not for a 2007 knee injury. Commissioner Chick did not participate in that decision.
Experts Weimholt, Cohen, Hughes, Lux, Clymer
Treater : Bal
Tuesday, August 21, 2018
Commission reverses PTD SIF award on SOL defense
The Commission in a 2-1 decision reversed an award of permanent and total disability based on a statute of limitations defense asserted by the second injury fund. Guinn v Solo Cup, DOLIR 8-21-2018.
Claimant is a 67 year old employed 19 years at Solo Cup who reported exposure to loud noise when he had to periodically remove hearing protection at the employer's facility. He was diagnosed with tinnitus and hearing loss in 2006. The employer settled the claim from 2013 and the claimant proceeded with a claim of PTD benefits against the Second Injury Fund filed in 2014 based on the hearing loss and prior medical impairment from Parkinson's.
The SIF disputed liability and asserted claimant filed a claim too late when the claim was filed more than a year after the condition was reasonably discoverable. The ALJ found the medical condition was diagnosed in 2006 but not reasonably discoverable until claimant's hired expert made the connection on May 22, 2013 so a claim filed on May 7, 2013 was timely as it was filed within one year.
The Commission found the date the claim was filed, and not the date the exam occurred, controlled when the condition was reasonably discoverable. As the claim was filed against the employer in January 2013, then the filing of the claim more than a year later against the Fund in May 2014 was untimely.
The Commission noted: "We need not consider or determine herein to use a date of disability plus 2 years or an independent tolling mechanism in 287.063.3 of "reasonably discoverable and apparent."
A dissent would have applied the 2 year statute in 287.430 when the condition was reasonably discoverable, and not from the original date of injury.
ALJ Wilson
Atty: Hosmer, Burks
Claimant is a 67 year old employed 19 years at Solo Cup who reported exposure to loud noise when he had to periodically remove hearing protection at the employer's facility. He was diagnosed with tinnitus and hearing loss in 2006. The employer settled the claim from 2013 and the claimant proceeded with a claim of PTD benefits against the Second Injury Fund filed in 2014 based on the hearing loss and prior medical impairment from Parkinson's.
The SIF disputed liability and asserted claimant filed a claim too late when the claim was filed more than a year after the condition was reasonably discoverable. The ALJ found the medical condition was diagnosed in 2006 but not reasonably discoverable until claimant's hired expert made the connection on May 22, 2013 so a claim filed on May 7, 2013 was timely as it was filed within one year.
The Commission found the date the claim was filed, and not the date the exam occurred, controlled when the condition was reasonably discoverable. As the claim was filed against the employer in January 2013, then the filing of the claim more than a year later against the Fund in May 2014 was untimely.
The Commission noted: "We need not consider or determine herein to use a date of disability plus 2 years or an independent tolling mechanism in 287.063.3 of "reasonably discoverable and apparent."
A dissent would have applied the 2 year statute in 287.430 when the condition was reasonably discoverable, and not from the original date of injury.
ALJ Wilson
Atty: Hosmer, Burks
Monday, August 20, 2018
Claimant fails to prove accident from undisputed fall at work
The Commission affirms a denial of benefits to a 68-year old full-time clerk who fell at Bass Pro Outdoor world in Springfield, MO in 2015 after an undisputed fall at work. Claimant sought compensation for a cuff tear and carpal tunnel and asserts she fell on an uneven surface.
She sought benefits of more than $50,000 in medical bills for surgeries to the wrist and shoulder, 12 weeks of TTD, disfigurement and PPD. Claimant alleged she used her left hand more after surgery for her right shoulder and claims the modified duty caused her left hand to become disabled. All benefits were denied.
The ALJ concluded claimant failed to prove injury by accident or occupational disease as she did not identify a credible occupational hazard as the cause of her fall. Claimant's fall was undisputed, witnessed and captured on video. Claimant was pushing a card on a level, concrete surface. Whether or not the surface was uneven was a disputed fact. The claim that the surface was uneven was an evolving history.
The employer produced evidence from a witness who identified no hazard, initial statements from the claimant who denied any identifiable hazards, and a medical history of diabetes, prior falls and impairment to the legs which included prior surgery and polio. A medical expert concluded claimant's carpal tunnel did not arise from her work because her duties were diverse and different and she had other risk factors including age, gender, elevated BMI and non-occupational exposures such as sewing.
Claimant admitted she walked both on similar flat surfaces at other stores and also walked in her employer's facility when he was not working. The ALJ noted the case was distinguishable from Gleason v Treasurer of State of Mo, 455 S.W.3d 494 (Mo. App. 2015) which involved an unexplained fall on area that was elevated and inherently dangerous.
The parties asked the ALJ to address whether claimant sustained an accident, whether the accident arose out of and in the course of employment, and medical causation.
Employee asserted in an appeal that the ALJ incorrectly described some of the medical history. The Commission found any errors did not detract from the findings (not prejudicial). The ALJ found the defense expert was supplied a recorded statement from a witness which was not admissible, but the fact was not reversible error as the ALJ ignored any testimony about it (the witness subsequently was deposed).
Juanita Wall v Bass Pro Outlet World LLC
Inj. No. 15-046926 (Aug 17, 2018)
ALJ Elmer
Atty: Pitts, Johnson
Experts: Schlafly, Lennard
She sought benefits of more than $50,000 in medical bills for surgeries to the wrist and shoulder, 12 weeks of TTD, disfigurement and PPD. Claimant alleged she used her left hand more after surgery for her right shoulder and claims the modified duty caused her left hand to become disabled. All benefits were denied.
The ALJ concluded claimant failed to prove injury by accident or occupational disease as she did not identify a credible occupational hazard as the cause of her fall. Claimant's fall was undisputed, witnessed and captured on video. Claimant was pushing a card on a level, concrete surface. Whether or not the surface was uneven was a disputed fact. The claim that the surface was uneven was an evolving history.
The employer produced evidence from a witness who identified no hazard, initial statements from the claimant who denied any identifiable hazards, and a medical history of diabetes, prior falls and impairment to the legs which included prior surgery and polio. A medical expert concluded claimant's carpal tunnel did not arise from her work because her duties were diverse and different and she had other risk factors including age, gender, elevated BMI and non-occupational exposures such as sewing.
Claimant admitted she walked both on similar flat surfaces at other stores and also walked in her employer's facility when he was not working. The ALJ noted the case was distinguishable from Gleason v Treasurer of State of Mo, 455 S.W.3d 494 (Mo. App. 2015) which involved an unexplained fall on area that was elevated and inherently dangerous.
The parties asked the ALJ to address whether claimant sustained an accident, whether the accident arose out of and in the course of employment, and medical causation.
Employee asserted in an appeal that the ALJ incorrectly described some of the medical history. The Commission found any errors did not detract from the findings (not prejudicial). The ALJ found the defense expert was supplied a recorded statement from a witness which was not admissible, but the fact was not reversible error as the ALJ ignored any testimony about it (the witness subsequently was deposed).
Juanita Wall v Bass Pro Outlet World LLC
Inj. No. 15-046926 (Aug 17, 2018)
ALJ Elmer
Atty: Pitts, Johnson
Experts: Schlafly, Lennard
Sunday, August 5, 2018
The
Perilous
Road
of Appeals
The Missouri Labor and Industrial Commission in 2018 issued several important decisions
providing guidance to parties who want to appeal decisions of an administrative
law judge.
The rules to appeal are set forth in the Code of State Regulations.
8
CSR 20-3.030 Review of Awards or Orders Issued by Administrative Law Judges
(4)(C) The brief of the party requesting the
application for review shall contain a fair and concise statement of facts
without argument. The respondent may supplement the statement of facts if
necessary. No jurisdictional statement
is necessary unless jurisdiction is at issue. (Parties are advised that recitations
of basic legal principles of workers compensation law are not necessary and are
discouraged. The commission is aware of
principles such as that the burden of proof is on the employee, the law is to be liberally interpreted in
favor of the employee, and that the commission may make its own
determination of the facts, and credibility of the witnesses including
experts.) The briefs shall identify the issues in dispute and address those
issues only. The briefs should state
concisely the factual or legal support for the party’s positions. Lengthy recitation of facts or cases without
identifying how they relate to the party’s position will not be considered.
Briefs of all parties should clearly outline and explain the issues in dispute
and contain a conclusion in detail as to the decision, award or action
requested from the Labor and Industrial Relations Commission. (emphasis added)
Section 287.800 provides:
1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.
2.
Administrative law judges, associate administrative law judges, legal advisors,
the labor and industrial relations commission, and the division of workers'
compensation shall weigh the evidence
impartially without giving the benefit of the doubt to any party when weighing
evidence and resolving factual conflicts.
(emphasis added)
The court of appeals has affirmed dismissals to the
Commission that fail to comply with the specific rules. Smith v. Smiley Container Corp., 997 S.W.2d 126, 128 (Mo. App.
1999), Wilkey v. Ozark Care Ctr.
Partners, L.L. C., 236 S.W.3d 101, 102 (Mo. App. 2007).
Despite 287.800 to “construe the provisions” strictly,
the Commission has allowed multiple recent cases to proceed on the merits when the parties
may not follow the basic tenets of the regulations to identify the reason for
the legal fight, the admonition against being a chatty Cathy, and to fight fair
and not argue during the statement of facts on the rationale that appeals are
remedial in nature and should be “construed liberally in favor of allowing
appeals to proceed.”
Identify the issues in dispute
The Commission noted the parties did not identify on
the record. The parties asked the ALJ to address “at least” two statutory
tests, the award did not address either, and addressed a third issue that was
not expressed at trial. On the appeal
the parties did not ask the Commission to address whether the party sustained
an accident, or an injury arising out of employment but the general issue of
medical causation which was not addressed at hearing.
Farris v ADS Waste Holding, 2018 MO WCLR
LEXIS 17 (ALJ Fowler)
The Commission noted
the parties disputed causation when the issue was not raised as a dispute. The Commission noted the parties incorrectly argued
whether the claimant had an “accident” arising out of in the course of the
employment when the correct standard was whether an “injury” arose of out employment.
The Commission further noted the phrase “scope”
was not defined the statute.
Hood v City of Kansas City, 2018 MO WCLR
Lexis 1 (ALJ Rebman)
Identify the error
A
2-1 majority allowed an appeal to proceed for partial disability for exposure
to fumes and dust despite a failure to identify the findings supported by the
evidence. Counsel in the case had
surrendered his license.
Judd v DaimlerChrysler, 2018 MO WCLR
LEXIS 198 (Jun 20, 2018) (ALJ Kohner)
Don’t
Argue
The
Commission allowed an appeal to proceed despite violations of the rule against presenting
argument in the statement of facts.
Barnett v Harley Davidson, 2018 MO WCLR
Lexis 189
Other issues
The Commission in a 2-1 decision dismissed an appeal based on a sua sponte review for lack of
jurisdiction whether an uninsured employer had enough employees to be subject to the Act. The uninsured employer did not file any responsive pleadings or participate.
The case had been previously remanded by the Commission to develop additional
evidence. Claimant failed to establish that her employer had enough
employees to be covered by the Act.
Mealer v Russ Jackson
Transportation, 2018 MO WCLR LEXIS
___ (Aug 1, 2018) (ALJ Carlisle)
The Commission in a 2-1 decision found an application of
review in which the party appeared to appeal multiple cases only identified the
injury number of one award on the application.
“We lack jurisdiction to address the issue… in the context of separate
awards not reference sin the employee’s application for review.” The dissent found the attorney substantially
complied with he rules and should not lose a right to appeal due to technical
formalities.
Mealer v Russ Jackson
Transportation, 2018 MO WCLR LEXIS ___ (Aug 1, 2018) (ALJ Carlisle).
Wednesday, July 11, 2018
Commission in split decision reverses denial of nursing benefits to spouse for emotional support
Ronald Reynolds v Wilcox Truck Line
July 3, 2018 DOLIR
Claimant sustained an accident in 2007 and alleges post traumatic stress disorder and depression and claims he remains PTD and unable to work in the open labor market.
The ALJ awards total disability, past TTD of more than $153,000 and denies payment for nursing services for his spouse.
The commission modified the award. It noted the 136 page decision by the ALJ summarized the findings without highlighting the operative facts. The 2-1 Commission relies upon the causation opinion of Dr. Stanley Butts. The commission found the defense expert did not demonstrate the symptoms were more likely from dementia or other non-occupational causes. Claimant also offered vocational evidence that claimant was unemployable.
Claimant offered an opinion from a life care planner that he required nursing care up to 20 hours a day. The employer did not appeal the finding that claimant required future medical care. Claimant argues that he needs someone to manage his medication, doctors appointments, transportation and avoid going into crisis. Claimant is able to perform many activities of daily living, unlike parties injured with debilitating injuries in other cases. The Commission found an absence of proof of the ordinary activities of a spouse. The Commission rejected expert testimony that claimant required round the clock monitoring because symptoms waxed and waned but derived the finding that claimant required 48 hours a week (the basis of this calculation is not documented). The commission awards $208,896 in past benefits at $16.00 an hour.
The Commission noted it retained jurisdiction to resolve disputes about ongoing obligations if claimant's situation changes and he requires more frequent care.
Clamant sustained additional physical injuries which required debridement. He is a 62 year old veteran who was hauling mail at the time.
A dissent noted claimant's fear of driving a truck after his accident did not render him totally disabled. The dissent notes claimant was trapped after the accident but he was able to work until he witnessed another accident. The dissent notes statements to a treating psychologist that claimant was able to resume activities working on a farm 12 hours a day.
Dr. Halfaker rated claimant with a 10% disability.
ALJ Miner
Atty: Powell, Lanham
July 3, 2018 DOLIR
Claimant sustained an accident in 2007 and alleges post traumatic stress disorder and depression and claims he remains PTD and unable to work in the open labor market.
The ALJ awards total disability, past TTD of more than $153,000 and denies payment for nursing services for his spouse.
The commission modified the award. It noted the 136 page decision by the ALJ summarized the findings without highlighting the operative facts. The 2-1 Commission relies upon the causation opinion of Dr. Stanley Butts. The commission found the defense expert did not demonstrate the symptoms were more likely from dementia or other non-occupational causes. Claimant also offered vocational evidence that claimant was unemployable.
Claimant offered an opinion from a life care planner that he required nursing care up to 20 hours a day. The employer did not appeal the finding that claimant required future medical care. Claimant argues that he needs someone to manage his medication, doctors appointments, transportation and avoid going into crisis. Claimant is able to perform many activities of daily living, unlike parties injured with debilitating injuries in other cases. The Commission found an absence of proof of the ordinary activities of a spouse. The Commission rejected expert testimony that claimant required round the clock monitoring because symptoms waxed and waned but derived the finding that claimant required 48 hours a week (the basis of this calculation is not documented). The commission awards $208,896 in past benefits at $16.00 an hour.
The Commission noted it retained jurisdiction to resolve disputes about ongoing obligations if claimant's situation changes and he requires more frequent care.
Clamant sustained additional physical injuries which required debridement. He is a 62 year old veteran who was hauling mail at the time.
A dissent noted claimant's fear of driving a truck after his accident did not render him totally disabled. The dissent notes claimant was trapped after the accident but he was able to work until he witnessed another accident. The dissent notes statements to a treating psychologist that claimant was able to resume activities working on a farm 12 hours a day.
Dr. Halfaker rated claimant with a 10% disability.
ALJ Miner
Atty: Powell, Lanham
Thursday, June 28, 2018
Commisison awards widow benefits
Claimant alleges in 2008 an occupational exposure for 19 years as a firefighter to smoke, gas, heat, oxygen, resulting in non-Hodgkin's lymphoma. He could not identify a specific incidents or other workers with similar medical conditions.
The employer disputed the claim and paid no benefits. A witness testified to exposure to diesel fumes in the living areas of the fire station. Exposures including car and dumpster fires.
The treating oncologist was unable to relate claimant's medical condition to his employment. The employee relied upon the opinion of Dr. Koprivica, who has a specialty in emergency medicine. The employer relied upon the opinion of Dr. Shaw, a triple certified expert, who found no relationship between claimant's type of medical condition and exposure as a firefighter, and noted the type of lymphoma was not a respiratory or cardiac condition. He stated that obesity was a contributing factor but there was no known cause of the medical condition.
The ALJ found the condition did not fall within the easier burden of proof for firefighters because the condition was not a delineated condition under 287.067.6 because it was a lympathic condition. The ALJ found that claimant's expert relied upon statistical correlation did not meet the burden of proof to show causation, that me relied upon out-dated meta-analysis, and that Dr. Koprivica was not a credible or persuasive witness in this case, and the defense experts were more qualified.
The Commission reversed.
It found Dr. Lockey's opinion persuasive that claimant's work as a firefighter had an elevated risk for for his NHL, due to exposure to cardinogenic substances. The court noted Dr. Shaw did not review
Dr. Lockey's journal article.
The Commission declined to apply the firefighter presumption, but noted legislative intent was unclear on the scope of the provision. Cheney v City of Gladstone, 2018 MO WCLR LEXIS (June 15, 2018) 2-0 Vote
The employer disputed the claim and paid no benefits. A witness testified to exposure to diesel fumes in the living areas of the fire station. Exposures including car and dumpster fires.
The treating oncologist was unable to relate claimant's medical condition to his employment. The employee relied upon the opinion of Dr. Koprivica, who has a specialty in emergency medicine. The employer relied upon the opinion of Dr. Shaw, a triple certified expert, who found no relationship between claimant's type of medical condition and exposure as a firefighter, and noted the type of lymphoma was not a respiratory or cardiac condition. He stated that obesity was a contributing factor but there was no known cause of the medical condition.
The ALJ found the condition did not fall within the easier burden of proof for firefighters because the condition was not a delineated condition under 287.067.6 because it was a lympathic condition. The ALJ found that claimant's expert relied upon statistical correlation did not meet the burden of proof to show causation, that me relied upon out-dated meta-analysis, and that Dr. Koprivica was not a credible or persuasive witness in this case, and the defense experts were more qualified.
The Commission reversed.
It found Dr. Lockey's opinion persuasive that claimant's work as a firefighter had an elevated risk for for his NHL, due to exposure to cardinogenic substances. The court noted Dr. Shaw did not review
Dr. Lockey's journal article.
The Commission found a recognized increased risk as compared to the general public between the disease and some distinctive feature of employment and found the additional risks doe snot negative the impact of increased risk factor.
The Commission declined to apply the firefighter presumption, but noted legislative intent was unclear on the scope of the provision. Cheney v City of Gladstone, 2018 MO WCLR LEXIS (June 15, 2018) 2-0 Vote
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