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
Tuesday, November 27, 2018
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,
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