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.
Wednesday, August 29, 2018
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).
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