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 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

 

Filing of amended claim to add SIF as a party did not toll Statute of limitations

The commission affirms a denial of benefits against the SIF without a separate opinion based on the statute of limitations.

 Claimant was an employee from 1984-2005 and alleged hearing loss. 

The ALJ found the claim against the second injury fund was not timely and amending the original claim to only add the second injury fund as a party did not toll the time to add the second injury fund.   Naeter v RC Lone Star (SIF only), DOLIR 6-15-2018  (3-0).


ALJ  Kasten
Atty:  Weiss, Rhoades

No accident from kicking leg.

The commission affirms a denial of benefits for a knee injury because of a failure to prove  a compensable accident arising out of employment.

Claimant alleges in 2014 she kicked out her leg while working a forklift.  In 2015 she alleges she reinjured the leg when she swung it out to put it on a step. 

Claimant's expert concluded both incidents contributed to the need for a knee replacement and back symptoms. A defense expert indicated claimant had degenerative spinal disease unrelated  to the events. 

The ALJ concluded claimant failed to prove she sustained an injury arising out of her employment.  The Commission affirmed and noted claimant failed to prove both a risk source was work related or that she could have avoided the risk outside of her employment.  MacFedries v General Cable Corp., 2018 MO WCLR LEXIS    (June 14, 2018)


ALJ Fischer
Experts:  Stuckmeyer

 

 

Commission affirms uncontroverted award for future medical

Claimant alleges he hurt his knee getting out from under a truck.  He underwent a meniscus surgery and reported continued symptoms.  The ALJ awarded future medical benefits.

The employer appealed the sole issue whether claimant sustained his burden to prove open medical.  Claimant's expert opined he   would require treatment indefinitely.  Claimant sustained a subsequent accident.  The Commission noted the opinion was rendered before the subsequent accident. The Commission noted it was forced to award future medical because the opinion was un-rebutted and un-impeached.    Reynolds v Mo. Hwy and Transportation, June 20, 2018 (3-0 decision).

The ALJ awarded 20% PPD for the knee surgery.

ALJ  Tilley
Atty: Haaahr
Expert:  Paul

Commisison awards Total Knee surgery after settlement

The Commission reversed a denial of benefits and allowed claimant to pursue further medical care, including a knee replacement, a month after settling a case. independent of the reactivation provision when the parties agreed to leave medical open for a period of time. Pierce v Bedrock , DOLIR 6-14-2018  (2-1 decision)

Claimant in May 2012 agreed to settle his case with the provision to keep medical open for one year and to allow medical to remain open pursuant to 287.140.8.  In June, the following month, claimant demanded more care.  The employer tendered care, and the doctor indicated claimant's need for total knee replacement was unrelated to the work injury.

The case was appealed and remanded to allow claimant to pursue his claim under the reactivation provision (287.140.8).  The employer objected that claimant failed in his burden to show good cause to trigger a duty to provide care under the reactivation provision. 

The Commission finds "good cause" under 287.140.8 to include any reason that is based on equity or justice or would motivate a reasonable man.  The commission finds the need for total knee replacement to be related, and orders treatment.

The Commission noted the agreement to leave medical open vested jurisdiction with the Commission to determine the scope of an "open" claim, citing State ex rel ISP Minerals, Inc. v Labor and Indus. Rels. Comm'n, 465 S.W.3d 471.  The commission found this agreement vested jurisdiction to provide future medical treatment independent of the re-activation statute.

Using meat slicer related to cuff tear according to commission

Amber Dockery v Dierbergs Markets Inc.
June 7, 2018

A 64-year old meat cutter employed more than 20 years established her cuff tear arose from repetitive trauma in part from cutting up to 400 slices of meat and cheese during a shift and "continuously" using her arm to cut meat and lift boxes, according to the Commission in a 2-1 award, which reversed a denial of benefits.

The ALJ noted claimant's evolving history of a work related event until after an MRI identified a cuff tear with her shoulder, and she had originally attributed to sleeping on her arm "funny.".  The ALJ deferred to the opinion of Dr. Nogalski who found the claimant's condition arose from degenerative changes not impacted by her job duties or any lifting accident.  The ALJ  noted Dr. Nogalski's expertise as an orthopedic surgeon who currently performs shoulder surgeries, unlike claimant's expert.

The Commission reversed on its de novo assessment of credibility of the experts.  It  found Dr. Nogalski's opinion was less persuasive because it was based on incomplete factual information about her job duties such as how often she lifted boxes or "the weight of the slicing machine" and his personal observation of meat cutters in stores.   Dr. Schlafly, claimant's expert, attributed the cause of her cuff and biceps pathology was from progressive tearing. 

The Commission awarded more than $51,000 in bills, 12 and 4/7 weeks in TTD and PPD of 35%, noting the absence of any PPD opinion offered by the employer.  Dr. Schlafly  rated the shoulder at 40% PPD.

The new commissioner Forrester wrote a short dissent indicating he would have affirmed the original award without further explanation.

ALJ Keaveny
Atty:  Hoener, Kowert
Experts:  Schlafly, Nogalski
Treater:  Sigmund