Claimant injured his ankle after his shift when he was inadvertently locked in the employer's courtyard.
The Commission found claimant exposed to a work hazard or risk which arose his employment, and rejected the employer's defense that claimant should not have been in the court yard in the first place, that his accident of climbing down was not directly related to his job and that claimant should have called for help rather than trying to escape on his own.
The commission disavowed the ALJ's reliance on pre-reform case law to interpret arising out of and criticized the a parties who mischaracterized the legal dispute as an accident arising out of employment when the core dispute was whether an injury arose out of employment.
The ALJ award 25% for an ankle injury, and gave found a rating deemed a "disability" rating to be more persuasive than one using an 'impairment" rating. Brown v Superior Linen Supply Company March 7, 2018
ALJ Fowler
Atty: Mayer, Collins
Experts: Prostic, Pratt
Monday, March 19, 2018
Thursday, March 8, 2018
Commission takes away PTD award and modifies credibility finding
The Commission modifies an award from permanent total to permanent partial for a strain based on credibility that claimant did not credibly explain or discount impeachment by inconsistent statements and prior treating records. Farris v ADS Waste Holding, 2018 MO WCLR LEXIS ___ (March 7, 2018).
Claimant alleges injuries from lifting and driving on bumpy roads and a specific event in January 2014 when he was thrown up in his seat after he hit something in the road. Claimant was diagnosed with an acute thoracic herniation.
Dr, Stuckmeyer testified that claimant had disability to his neck, back and hip. Dr. Rende provided different medical opinions about causation. The ALJ relied upon vocational opinion that claimant was unemployable because he could not work 40 hours a week.
The ALJ makes several comments that defense experts had incomplete records and had not been provided various films, records or transcripts. The ALJ noted that the employer did not offer a vocational expert. The ALJ questioned the lack of evidence to show an engineer's qualifications
The ALJ notes calling an ambulance established actual notice of a work-injury.
The Commission noted that claimant abandoned any claim of occupational disease and affirmed a finding of accident of hitting a bump on the road on a specific date.
"We take this opportunity to remind the parties as to the critical importance of obtaining a statement on the record of the particular issues in dispute that is not only complete, but precise in terms of the various statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."
"To summarize, we are now faced with a record where the parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed a third question that was not expressly identified for trial. This is troubling because the courts have very recently cautioned the fact-finder against delving into issues the parties have not specifically identified for hearing. See, e.g., Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016), concluding the Commission erred in considering, without additional evidentiary proceedings, an issue of joint service where the parties did not specifically identify that issue at the hearing before the administrative law judge, but instead disputed the more general issue whether the employee suffered an injury that arose out of and in the course of employment.
Here, the parties do not now ask us, in their briefs or at oral argument, to consider or apply the aforementioned statutory provisions referable to whether employee sustained an "accident" and/or an "injury arising out of and in the course of the employment." Instead, employer complains that the administrative law judge failed to identify, with sufficient specificity, the nature of the "resulting medical conditions" she deemed to have resulted from employee’s accident. In other words, employer asks us to go forward with the issue of medical causation, even though such was not identified as an issue at trial."
The commission noted years of chiropractic treatment leading up to the accident which mirror symptoms claimant attributes solely to the accident of hitting a bump. The court noted numerous inconsistencies regarding the prior history, accident, and extent of subsequent symptoms in records and media account to not defer to the finding of credibility by the ALJ.
ALJ Fowler
Atty: McKay
Experts: Stuckmeyer, Drieling, Clymer, Rende, Katz
Claimant alleges injuries from lifting and driving on bumpy roads and a specific event in January 2014 when he was thrown up in his seat after he hit something in the road. Claimant was diagnosed with an acute thoracic herniation.
Dr, Stuckmeyer testified that claimant had disability to his neck, back and hip. Dr. Rende provided different medical opinions about causation. The ALJ relied upon vocational opinion that claimant was unemployable because he could not work 40 hours a week.
The ALJ makes several comments that defense experts had incomplete records and had not been provided various films, records or transcripts. The ALJ noted that the employer did not offer a vocational expert. The ALJ questioned the lack of evidence to show an engineer's qualifications
The ALJ notes calling an ambulance established actual notice of a work-injury.
The Commission noted that claimant abandoned any claim of occupational disease and affirmed a finding of accident of hitting a bump on the road on a specific date.
"We take this opportunity to remind the parties as to the critical importance of obtaining a statement on the record of the particular issues in dispute that is not only complete, but precise in terms of the various statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."
"To summarize, we are now faced with a record where the parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed a third question that was not expressly identified for trial. This is troubling because the courts have very recently cautioned the fact-finder against delving into issues the parties have not specifically identified for hearing. See, e.g., Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016), concluding the Commission erred in considering, without additional evidentiary proceedings, an issue of joint service where the parties did not specifically identify that issue at the hearing before the administrative law judge, but instead disputed the more general issue whether the employee suffered an injury that arose out of and in the course of employment.
Here, the parties do not now ask us, in their briefs or at oral argument, to consider or apply the aforementioned statutory provisions referable to whether employee sustained an "accident" and/or an "injury arising out of and in the course of the employment." Instead, employer complains that the administrative law judge failed to identify, with sufficient specificity, the nature of the "resulting medical conditions" she deemed to have resulted from employee’s accident. In other words, employer asks us to go forward with the issue of medical causation, even though such was not identified as an issue at trial."
The commission noted years of chiropractic treatment leading up to the accident which mirror symptoms claimant attributes solely to the accident of hitting a bump. The court noted numerous inconsistencies regarding the prior history, accident, and extent of subsequent symptoms in records and media account to not defer to the finding of credibility by the ALJ.
ALJ Fowler
Atty: McKay
Experts: Stuckmeyer, Drieling, Clymer, Rende, Katz
Friday, March 2, 2018
Court affirms PTD for compression fracture
Jackson County Mo v Marc Earnest
WD 81803 Feb. 27, 2018
Employer appeals an award of permanent total affirmed by the Commission.
The court of appeals defers to findings of fact whether a person is employable in the open labor market, unless such finding is against the overwhelming weight of the evidence.
The court found the commission had not committed error by relying upon a decision that was over-ruled on an issue of law that was not in dispute.
The court commented in a footnote that it was "interesting" that the employer relied upon cases that were similarly over-ruled in its argument.
The court noted the commission had based its finding on the totality of the evidence, including doctor's opinions, and found its award supported despite inconsistencies in some of claimant's testimony involving topics such as the capacity to perform certain physical tasks.
The ALJ found video tape not persuasive on the issue if claimant was employable based on a "snapshot" in time, despite inconsistencies in his testimony and the physical activities demonstrated of cutting the grass.
The facts of the case involved a 2014 accident when a tree fell on an employee resulting in a compression fracture. Claimant stated he had severe limits in his ability to stand, sit, and other activities due to his surgeries.
"Due to believed fracture instability, Claimant was admitted to the hospital from April 1 to April 13 to undergo two surgeries. The surgeries included rib resection for bone grafting, partial removal of the T7 vertebra, and hardware placement for anterior and posterior spinal fusions. After the surgeries, Claimant was released from the hospital but continued to follow up with his surgeon, Dr. Wilkinson, often complaining of back pain and muscle spasms."
Experts: Stuckmeyer
Judge Ardini
WD 81803 Feb. 27, 2018
Employer appeals an award of permanent total affirmed by the Commission.
The court of appeals defers to findings of fact whether a person is employable in the open labor market, unless such finding is against the overwhelming weight of the evidence.
The court found the commission had not committed error by relying upon a decision that was over-ruled on an issue of law that was not in dispute.
The court commented in a footnote that it was "interesting" that the employer relied upon cases that were similarly over-ruled in its argument.
The court noted the commission had based its finding on the totality of the evidence, including doctor's opinions, and found its award supported despite inconsistencies in some of claimant's testimony involving topics such as the capacity to perform certain physical tasks.
The ALJ found video tape not persuasive on the issue if claimant was employable based on a "snapshot" in time, despite inconsistencies in his testimony and the physical activities demonstrated of cutting the grass.
The facts of the case involved a 2014 accident when a tree fell on an employee resulting in a compression fracture. Claimant stated he had severe limits in his ability to stand, sit, and other activities due to his surgeries.
"Due to believed fracture instability, Claimant was admitted to the hospital from April 1 to April 13 to undergo two surgeries. The surgeries included rib resection for bone grafting, partial removal of the T7 vertebra, and hardware placement for anterior and posterior spinal fusions. After the surgeries, Claimant was released from the hospital but continued to follow up with his surgeon, Dr. Wilkinson, often complaining of back pain and muscle spasms."
Experts: Stuckmeyer
Judge Ardini
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