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

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

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