Wayne Terry v Rick Shipman Construction
Travelers Property Casualty
Release Date: Dec. 27, 2019 (Accident date Nov 23, 2014)
Venue: Jackson County, MO
Plot Summary: In a 2-1 vote, the Commission reverses a denial of benefits based on lack of timely notice for a claim of trigger finger injuries and awards medical bills but no disability. The ALJ felt claimant had a duty to provide notice after receiving treatment for both hands.
Cast:
Cain, ALJ
Pitts
Mullins
Hall
Comments: Claimant received a settlement for trigger finger injuries to the left hand and used the last date of employment at Rick Shipman on Nov. 24, 2014. About a month after the settlement he filed an occupational disease claim for trigger finger injuries to the right hand and amended the alleged date one day earlier as Nov. 23, 2014, which avoided duplication of claims.
Claimant relied on an opinion of Dr. Mullins who rated 42% of the hand and that claimant would possibly require surgery or an injection. Claimant had surgery performed in 2016. Dr. Hall felt the condition was related based on the "benefit of the doubt" but found other conditions not related and that the claimant was malingering.
The ALJ denied the claim for lack of timely notice and claimant's failure to show lack of prejudice. The ALJ felt the injury was reasonably discoverable in 2015 when claimant's exam findings were a basis for the earlier claim, and not tolled until Dr. Mullins in 2017 told him conditions on the "right" side were work related .
The ALJ considered the separate dates lacked justification in facts and the law. The ALJ raised concerns that the claim must be allowed to proceed under due process because no parties preserved an issue of judicial estoppel, even though the ALJ found the decision to file two separate claims was "fast and loose with the judicial process." The case of Vacca v Mo Dept of Labor and Industrial Relations is discussed in detail.
The commission noted neither party filed briefs. Claimant asserts he provided timely notice in 30 days They employer did not file an answer.
Dr. Hall did not rate disability but indicated claimant was at MMI. The Commission finds claimant at MMI. The Commission regarded Dr. Mullin's rating as "conditional" and "excessive." The Commission found no duty arose to provide notice until Dr. Mullin told claimant the condition was work related in 2017. The Commission questions the use of "reasonably discovery and apparent" analysis in statute of limitations to determine if notice is timely.
The Commission disclaimed the findings that different consecutive dates of accident were improper because it states there was "various competing authorities" on what date is proper in an occupational disease claim. The Commission further discounted the ALJ's comments on "judicial estoppel" but not because any error about judicial estoppel was not in controversy but because it questions whether estoppel even applies in comp. "Judicial estopped is a doctrine of equity; the Division of workers compensation and the Commission do not have general jurisdiction over equitable questions…."
The Commission awards $15,666.00 in past medical expenses, mileage, TTD and awards no disability. The treatment was at the V.A., there was no lien noted, but a finding that "there is no evidence that the V.A. waived its right to place a lien … or otherwise that employee's liability in connection with this treatment has been extinguished."
A dissent felt Dr. Hall's "reservations" about causation supported a denial of any benefits, despite comments that the doctor would give the 'benefit of the doubt that his middle and ring finger triggering flowed from his work as a carpenter.
Tuesday, December 31, 2019
Thursday, December 26, 2019
Complications from thoracic outlet surgery contribute to PTD
Marc Meng v SystemAire Inc.
Cincinnati Insurance
Release Date: Dec 12, 2019 (May 2006)
Venue: St. Louis County
Plot Summary: Claimant alleges injury by occupational disease from repetitive overhead work as a sheet metal worker resulting in surgical treatment to both wrists and elbows and thoracic outlet syndrome. He developed as a surgical complication of a phrenic nerve palsy after thoracic outlet surgery. The Commission affirms a finding that claimant is PTD on basis of TOS alone with complications of nerve palsy and finds the first of two employers liable under the last exposure rule.
Inj. No 06-068486, 08-121599
https://labor.mo.gov/sites/labor/files/decisions_wc/MengMarc06-06848612-12-19_0.pdf
Cast:
Teer, ALJ
Christiansen
Weinstock
Archer
Dreisher
Musich
Thompson
MacKinnon
Koo
Lalk
Blaine
Comments
Claimant worked 4-5 years at SystemAire and 7-8 months at Harke, where he was last employed. The ALJ found the condition disabling while employed with the first employer. The surgeon indicated both employments caused the thoracic outlet but the ALJ found the condition became disabling under SystemAire. The ALJ rejected the claim was inadequate because the allegation of BAW was sufficient to capture later refined allegations of thoracic outlet. The commission denied numerous constitutional challenges raised by defense counsel.
What's it worth?
PTD for 57 year old claimant with >$400K in back benefits for medical/TTD
Cincinnati Insurance
Release Date: Dec 12, 2019 (May 2006)
Venue: St. Louis County
Plot Summary: Claimant alleges injury by occupational disease from repetitive overhead work as a sheet metal worker resulting in surgical treatment to both wrists and elbows and thoracic outlet syndrome. He developed as a surgical complication of a phrenic nerve palsy after thoracic outlet surgery. The Commission affirms a finding that claimant is PTD on basis of TOS alone with complications of nerve palsy and finds the first of two employers liable under the last exposure rule.
Inj. No 06-068486, 08-121599
https://labor.mo.gov/sites/labor/files/decisions_wc/MengMarc06-06848612-12-19_0.pdf
Cast:
Teer, ALJ
Christiansen
Weinstock
Archer
Dreisher
Musich
Thompson
MacKinnon
Koo
Lalk
Blaine
Comments
Claimant worked 4-5 years at SystemAire and 7-8 months at Harke, where he was last employed. The ALJ found the condition disabling while employed with the first employer. The surgeon indicated both employments caused the thoracic outlet but the ALJ found the condition became disabling under SystemAire. The ALJ rejected the claim was inadequate because the allegation of BAW was sufficient to capture later refined allegations of thoracic outlet. The commission denied numerous constitutional challenges raised by defense counsel.
What's it worth?
PTD for 57 year old claimant with >$400K in back benefits for medical/TTD
Tuesday, December 17, 2019
Commission awards surgery for aggravation of spinal disease
Charles Bourrage v General Motors
Self-insured
Release Date: Dec. 12, 2019 (Accident date July 25, 2015)
Venue: St. Charles
Plot Summary: Commission affirms a temporary award based on injury by accident to the back from pulling a heavy object and finds the claimant's need for surgery 2 1/2 years after the accident and the need for a revision surgery compensable based on aggravation and a progression of a pre-existing degenerative pars defect to progress to a spondylolisthesis.
15-053452
https://labor.mo.gov/sites/labor/files/decisions_wc/BourrageCharles15-05345212-12-19.pdf
Cast:
Landolt, ALJ
Gregory
Rommel
Curylo
Volarich
Rutz
Comments: Employer is ordered to pay back TTD since July 2017 when he went on short term disability/sick leave and has not worked since. Dr. Kitchens testifies the pars defect had worsened between 2015 and 2017. Employee sought treatment in 2015 when employer asserted the claim was not compensable. Dr. Volarich had initially found claimant at MMI in 2016 and when he re-examined him he "withdrew" his earlier opinions about PPD and MMI.
Self-insured
Release Date: Dec. 12, 2019 (Accident date July 25, 2015)
Venue: St. Charles
Plot Summary: Commission affirms a temporary award based on injury by accident to the back from pulling a heavy object and finds the claimant's need for surgery 2 1/2 years after the accident and the need for a revision surgery compensable based on aggravation and a progression of a pre-existing degenerative pars defect to progress to a spondylolisthesis.
15-053452
https://labor.mo.gov/sites/labor/files/decisions_wc/BourrageCharles15-05345212-12-19.pdf
Cast:
Landolt, ALJ
Gregory
Rommel
Curylo
Volarich
Rutz
Comments: Employer is ordered to pay back TTD since July 2017 when he went on short term disability/sick leave and has not worked since. Dr. Kitchens testifies the pars defect had worsened between 2015 and 2017. Employee sought treatment in 2015 when employer asserted the claim was not compensable. Dr. Volarich had initially found claimant at MMI in 2016 and when he re-examined him he "withdrew" his earlier opinions about PPD and MMI.
Thursday, December 12, 2019
Court finds claimant who lacks credibility fails to prove PTD Fund claim
Harold Williams, dec. v Treasurer of State of MO.
2019 MO App. Lexis 1942
Release Date: Dec. 10, 2019 (Accident date Dec. 3, 2000)
Venue: Western District (Div 3)
Plot Summary: Court affirms a denial of a claim of PTD benefits against the Second Injury Fund after he fell at work and alleged his new back injury combined with a prior disability to his back which had required discectomy and resulted in a 20% settlement.
Cast:
Whitt, Hon.
Parmet
Cohen
Memorable quotes
" Williams bears the burden of demonstrating that his disabilities combined to render him unemployable on the open labor market. Williams notes that he was not gainfully employed following the Primary Injury. However, as detailed above, Williams spent the majority of his life following the Primary Injury incarcerated and just because a person is unemployed does not necessarily equate with being unemployable.
Comments:
The Commission found claimant was not credible, he failed to prove he had achieved MMI or established synergy to support a claim for Fund benefits. The claimant had raised issues of permanent partial and permanent total. The Court found claimant had the burden to show synergy only in partial claims, that the absence of synergy did not support a denial of PTD benefits, but that claimant did not preserve error on any issue related to synergy and a PPD claim. The court found a failure of proof that his asymptomatic medical conditions were made worse by the primary injury or were a hindrance or obstacle at the time of the compensable injury.
"The issue before us is not whether Williams presented sufficient evidence to support a finding of permanent total disability, the issue is whether the totality of the evidence supported the Commission's award. The Commission found that Williams was not a credible witness regarding his disabilities. The expert evidence that Williams put forth to support a finding of permanent and total disability was flawed. While Dr. Parmet did testify that Williams may have been permanently and totally disabled, in reaching this conclusion he relied on conditions that, by his own testimony, did not preexist the Primary Injury. Dr. Cohen testified that, although Williams was no longer employable in his previous profession as a truck driver, he could be employed in sedentary work. Additionally, the medical records of Dr. Komes supported a finding that Williams did not suffer from medical conditions that made him unemployable on the open market. The Commission did not err in finding that Williams did not meet his burden of establishing total permanent disability and therefore the Commission's award denying him coverage was supported by substantial evidence.
What's it worth?
33.7% right knee (CLSS)
5% left knee (CLSS)
15% BACK (CLSS)
7.5% hand (CLSS)
Saturday, December 7, 2019
Commission affirms award for sanctions for not providing care for mold/asthma
William Stratton v City of Odessa
Missouri Rural Service
Release Date: Nov. 14, 2019
Venue: Lafayette County
Plot Summary: Claimant alleges respiratory and psychological conditions associated with exposure to black mold. The Commission affirms a PPD award, medical, and penalties for an unreasonable defense under 27.560.
Inj. No 14-1037351
Cast:
Seidlik, ALJ
Thomas
Collier
Poppa
Wald
Shen
Memorable quotes:
"any actions prior to the initiation of the workers' compensation proceeding are not a basis for our finding that an award of costs is appropriate under§ 287.560."
Comments:
The Commission noted the tactical decision by a party not to present evidence does not support an award of sanctions under 287.560, but runs the risk the other party will satisfy the burden of proof. In this case, the commission accepted claimant's testimony that the employer did not tender care, an issue disputed by the employer, and found 287.560 sanctions were reasonable when Dr. Shen opined claimant had a work-related condition and the employer did not provide benefits and the employer continued to dispute liability.
"We do not find employer's defenses to the statute of limitations to be reasonable when employee filed his claim even before he had a firm medical opinion upon which it was reasonably discoverable and apparent that he had an occupational disease attributed to his work. We do not find employer's defense on the basis of challenge to medical charges to be reasonable when there are ways to address those issues short of denying all liability." The ALJ rejected that his liability was extinguished if the statute of limitations precluded any legal remedy for the provider, and awarded medical bills for a 2008 admission for empyema.
What's it worth?
20% respiratory 5% psych plus past medical
Missouri Rural Service
Release Date: Nov. 14, 2019
Venue: Lafayette County
Plot Summary: Claimant alleges respiratory and psychological conditions associated with exposure to black mold. The Commission affirms a PPD award, medical, and penalties for an unreasonable defense under 27.560.
Inj. No 14-1037351
Cast:
Seidlik, ALJ
Thomas
Collier
Poppa
Wald
Shen
Memorable quotes:
"any actions prior to the initiation of the workers' compensation proceeding are not a basis for our finding that an award of costs is appropriate under§ 287.560."
Comments:
The Commission noted the tactical decision by a party not to present evidence does not support an award of sanctions under 287.560, but runs the risk the other party will satisfy the burden of proof. In this case, the commission accepted claimant's testimony that the employer did not tender care, an issue disputed by the employer, and found 287.560 sanctions were reasonable when Dr. Shen opined claimant had a work-related condition and the employer did not provide benefits and the employer continued to dispute liability.
"We do not find employer's defenses to the statute of limitations to be reasonable when employee filed his claim even before he had a firm medical opinion upon which it was reasonably discoverable and apparent that he had an occupational disease attributed to his work. We do not find employer's defense on the basis of challenge to medical charges to be reasonable when there are ways to address those issues short of denying all liability." The ALJ rejected that his liability was extinguished if the statute of limitations precluded any legal remedy for the provider, and awarded medical bills for a 2008 admission for empyema.
What's it worth?
20% respiratory 5% psych plus past medical
Commission affirms PPD that hauling trucks caused repetitive disc protrusions/herniations
Thomas Fenwick v The Doe Run Company
American Zurich Ins. Co.
Release Date: Dec 4, 2019
Venue: Iron County
Plot summary: Claimant alleges multiple spinal injuries from being "bounced around" in a truck. Commission affirms award that "hauling trucks" produced repetitive trauma to spine resulting in 9 disc protrusions or herniations based on opinion of claimant's expert Dr. Volarich.
Cast:
Kasten, ALJ
Seufert
Volarich - 67 1/2% rating
Chabot - 0% pre-existing
Coyle
Cantrell - cervical sprain
Comments: A dissenting commissioner found claimant's credibility impacted by his lack of candor about prior severe symptoms, a delay in manifestation of symptoms, and inconsistencies between degree of subjective symptoms and objective exam findings.
What's it Worth?
22% PPD BAW neck, thoracic and lumber
American Zurich Ins. Co.
Release Date: Dec 4, 2019
Venue: Iron County
Plot summary: Claimant alleges multiple spinal injuries from being "bounced around" in a truck. Commission affirms award that "hauling trucks" produced repetitive trauma to spine resulting in 9 disc protrusions or herniations based on opinion of claimant's expert Dr. Volarich.
Inj. No. 15-0292171
Cast:
Kasten, ALJ
Seufert
Volarich - 67 1/2% rating
Chabot - 0% pre-existing
Coyle
Cantrell - cervical sprain
Comments: A dissenting commissioner found claimant's credibility impacted by his lack of candor about prior severe symptoms, a delay in manifestation of symptoms, and inconsistencies between degree of subjective symptoms and objective exam findings.
What's it Worth?
22% PPD BAW neck, thoracic and lumber
Commission affirms award and declines sanction for "deficient" brief
Thomas Fenwick v Doe Run
American Zurich Ins. Co.
Release Date: Dec. 4, 2019 (Accident Date May 22, 2014)
Venue: Iron County
Plot summary: Claimant alleges injury by occupational disease to both wrists from working as a miner, roofer, truck driver and heavy equipment operator. The Commission affirms the award and finds moot the objection that the employer's brief did not comply with the statement of facts was not fair and concise without argument despite the "deficiencies."
Inj. No. 14-0364621
https://labor.mo.gov/sites/labor/files/decisions_wc/FenwickThomas14-03646212-04-19.pdf
Cast:
Strange, ALJ
Seufert
Lory
Volarich
Crandall
Comments:
"Prior to October 30, 2019, 8 CSR 20-3.030(5) only specifically addressed the Commission's authority to decline to consider a brief that failed to comply with the provisions of 8 CSR 20-3.030(5)(8), relating to page limits for petitioner's and respondent's briefs and the time limit for filing a reply brief. The Secretary of State did not publish the current version of Rule 8 CSR 20-3.030(5)(C) for comment in the Missouri Register until May 15, 2019, and the revised rule did not become effective until October 30, 2019, nearly four months after employer/insurer filed its brief with the Commission."
What's it worth?
20% of each wrist (CTS)
American Zurich Ins. Co.
Release Date: Dec. 4, 2019 (Accident Date May 22, 2014)
Venue: Iron County
Plot summary: Claimant alleges injury by occupational disease to both wrists from working as a miner, roofer, truck driver and heavy equipment operator. The Commission affirms the award and finds moot the objection that the employer's brief did not comply with the statement of facts was not fair and concise without argument despite the "deficiencies."
Inj. No. 14-0364621
https://labor.mo.gov/sites/labor/files/decisions_wc/FenwickThomas14-03646212-04-19.pdf
Cast:
Strange, ALJ
Seufert
Lory
Volarich
Crandall
Comments:
"Prior to October 30, 2019, 8 CSR 20-3.030(5) only specifically addressed the Commission's authority to decline to consider a brief that failed to comply with the provisions of 8 CSR 20-3.030(5)(8), relating to page limits for petitioner's and respondent's briefs and the time limit for filing a reply brief. The Secretary of State did not publish the current version of Rule 8 CSR 20-3.030(5)(C) for comment in the Missouri Register until May 15, 2019, and the revised rule did not become effective until October 30, 2019, nearly four months after employer/insurer filed its brief with the Commission."
What's it worth?
20% of each wrist (CTS)
Second Injury fund "total" related to OD claim denied based on 2014 filing date
Lisa Coffer v Health Mgmt Assoc (Twin Rivers) and Treasurer of MO
Liberty Ins. Corporation
Release Date: Nov 25 2019 (stipulated accident date Dec 13, 2013)
Venue: Dunklin County
Plot summary: Claimant was a long-term PBX operator who developed bilateral carpal tunnel, settled with the employer, and then sought PTD benefits against the Fund. The Commission finds 287.220.3 applies as the claim was filed after Jan 1, 2014 and reverses an award of benefits. "We understand this language to mean that when one (a) files a workers' compensation claim (b) against the Second Injury Fund where (c) the subsequent compensable injury is an occupational disease and (d) the filing date is after January 1, 2014, then § 287.220.3 RSMo, applies." The Commission finds as a matter of law a failure of proof that claimant's pre-existing medical conditions are "qualified" medial conditions under section 3. .
https://labor.mo.gov/sites/labor/files/decisions_wc/CofferLisa13-10424011-25-19.pdf
Inj. No. 13-10424011
Cast
Kasten, ALJ
Edwards, atty
Harris, atty
Hinton
Poetz
Shea
Comments: The ALJ found Dr. Poetz's report was admissible despite his unavailability due to death as the Fund had reasonable opportunity to depose him and the court construed the obligations of 287.210.7 to require only a duty to make the expert reasonably available. Dr. Poetz had rated claimant with a cumulative prior disability exceeding 100% BAW related to mental, neck back, arm and colon conditions.
The ALJ found "Based on my ruling that Ms. Coffer's primary occupational injury occurred on December 13, 2013 which was prior to January 1, 2014, I find that Section 287.220.2 RSMo applies to her Claim against the Second Injury Fund. The Commission held the filing date was determinative and found insufficient evidence that claimant's prior conditions qualified under section 3 which provides:
" (a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear"
What's it worth? (no SIF PPD opinion )
18.75% BAW (plus set aside) (by settlement)
Commission 20%, and 22.75% for CTS
Liberty Ins. Corporation
Release Date: Nov 25 2019 (stipulated accident date Dec 13, 2013)
Venue: Dunklin County
Plot summary: Claimant was a long-term PBX operator who developed bilateral carpal tunnel, settled with the employer, and then sought PTD benefits against the Fund. The Commission finds 287.220.3 applies as the claim was filed after Jan 1, 2014 and reverses an award of benefits. "We understand this language to mean that when one (a) files a workers' compensation claim (b) against the Second Injury Fund where (c) the subsequent compensable injury is an occupational disease and (d) the filing date is after January 1, 2014, then § 287.220.3 RSMo, applies." The Commission finds as a matter of law a failure of proof that claimant's pre-existing medical conditions are "qualified" medial conditions under section 3. .
https://labor.mo.gov/sites/labor/files/decisions_wc/CofferLisa13-10424011-25-19.pdf
Inj. No. 13-10424011
Cast
Kasten, ALJ
Edwards, atty
Harris, atty
Hinton
Poetz
Shea
Comments: The ALJ found Dr. Poetz's report was admissible despite his unavailability due to death as the Fund had reasonable opportunity to depose him and the court construed the obligations of 287.210.7 to require only a duty to make the expert reasonably available. Dr. Poetz had rated claimant with a cumulative prior disability exceeding 100% BAW related to mental, neck back, arm and colon conditions.
The ALJ found "Based on my ruling that Ms. Coffer's primary occupational injury occurred on December 13, 2013 which was prior to January 1, 2014, I find that Section 287.220.2 RSMo applies to her Claim against the Second Injury Fund. The Commission held the filing date was determinative and found insufficient evidence that claimant's prior conditions qualified under section 3 which provides:
" (a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear"
What's it worth? (no SIF PPD opinion )
18.75% BAW (plus set aside) (by settlement)
Commission 20%, and 22.75% for CTS
Failure of proof supports denial of trigger finger claim
Gina Beaman v Lowe's Home Center Inc.
Release Date: Nov. 14, 2019 (Accident date Sept. 12, 2012)
Venue: Taney County
Plot summary:
The Commission affirms an award of benefits related to the right wrist but denies benefits to the left wrist and associated trigger finger release. The Commission notes the employee on appeal waived any claim of error related to synergy of the right wrist when the points of error were limited to the left wrist. The Commission found a failure of proof of credible medical opinion on the left wrist and noted that causation could not be inferred by an assessment of disability based on claimant's "perception" of a causal relationship.
https://labor.mo.gov/sites/labor/files/decisions_wc/BeamanGina12-06765211-14-19_0.pdf
Comments:
Claimant, 57, alleges injury by occupational disease while removing supplies from high racks. She had a TFCC repair and reported increased symptoms after an auto accident. The employer relied on a defense of intervening accident and was ordered to provide treatment and an MRI in a temporary award. The MRI did not support a need for more treatment. The ALJ found the intervening accident was not a factor in a temporary or final award. The claimant failed to prove a need for surgery for a trigger finger flowed from her injury, her expert opinion over-relied on an x-ray instead of the MRI findings, and a causation opinion that a relationship "may' exist was not substantial evidence. Expert opinion based solely on a separate 2014 claim did not support causation.
What's it worth?
25% PPD plus disfigurement (TFCC)
Release Date: Nov. 14, 2019 (Accident date Sept. 12, 2012)
Venue: Taney County
Plot summary:
The Commission affirms an award of benefits related to the right wrist but denies benefits to the left wrist and associated trigger finger release. The Commission notes the employee on appeal waived any claim of error related to synergy of the right wrist when the points of error were limited to the left wrist. The Commission found a failure of proof of credible medical opinion on the left wrist and noted that causation could not be inferred by an assessment of disability based on claimant's "perception" of a causal relationship.
https://labor.mo.gov/sites/labor/files/decisions_wc/BeamanGina12-06765211-14-19_0.pdf
Cast
Mahon, ALJ
Murphy, atty
Dolence, atty for carrier
Paul
Cleveland Clinic
Comments:
Claimant, 57, alleges injury by occupational disease while removing supplies from high racks. She had a TFCC repair and reported increased symptoms after an auto accident. The employer relied on a defense of intervening accident and was ordered to provide treatment and an MRI in a temporary award. The MRI did not support a need for more treatment. The ALJ found the intervening accident was not a factor in a temporary or final award. The claimant failed to prove a need for surgery for a trigger finger flowed from her injury, her expert opinion over-relied on an x-ray instead of the MRI findings, and a causation opinion that a relationship "may' exist was not substantial evidence. Expert opinion based solely on a separate 2014 claim did not support causation.
What's it worth?
25% PPD plus disfigurement (TFCC)
Friday, December 6, 2019
Depression after fall at work renders claimant unemployable
Jeanie-Herberlie-Whistler v Riverview on the Park and Treasurer of MO.
Release Date: Dec 2, 2019 (Accident date Nov 9, 2013)
Venue: Ste. Genevieve County
Length: 35 pages
Plot summary:
Commission affirms a denial of a PTD claim against the second injury fund and finds her last accident alone rendered a 62-year-old nurse unemployable based on anxiety and depression following an arm fracture.
Inj. No. 13-084576
https://labor.mo.gov/sites/labor/files/decisions_wc/Heberlie-WhistlerJeannie13-084576120219.pdf
Cast:
Robbins, ALJ
Weiss
Rhoades
Dr. Hagen
Dr. Berkin
Dr. Jordan
Dr. Smith
Dr. Liss
Dr. Sky
Lalk
Comments:
In a Fund-only claim, the Commission finds the employee failed to show pre-existing psych conditions represented a hindrance or obstacle to employment. Claimant contends her life was ruined because she had to retire 3 years earlier than she expected due to her unrelenting arm pain following a fracture in her humerus and “cascading” problems including depression/anxiety. One doctor felt she was not medically safe for surgery because of her mental state. Another felt she likely had a somatization disorder.
The Commission found the employee truthful “to the best of her recollection” despite statements that are inconsistent and conflicting. The commission criticized the ALJ’s opinion for its prolixity.
Memorable quotes
“She was a "fragile egg" who did not have the inner resources, given her pre-existing level of disability, to recover from her work-related injury.
“She is angry and resentful that she did not receive home health assistance post discharge, though she did not request it.”
What’s it worth?
$150,000 (CLSS by E/i)
Tuesday, November 12, 2019
Court affirms denial of tinnitis after scuffle
James Schlereth v Aramark Uniform Services
Venue: Eastern
Release date: Nov. 12, 2019 (Accident date Oct 8, 2014)
Plot Summary: Claimant was a former employee who was engaged in an altercation at work and fired. A subordinate was offended when claimant criticized behavior as "stupid", and the subordinate spit in claimant's face and knocked him to the ground. Claimant sought worker's compensation benefits for a head injury and tinnitus allegedly caused from the trauma. The Court affirmed a decision of the Commission which denied benefits, and affirmed a denial by the ALJ.
ED 107806
Cast
Hess, Hon.
Gault
Hares
Cohen
Peeples
Comments: The court noted the Commission's award was inconsistent in its findings and the award was "poorly written" and erroneously concluded there was "no" evidence to support the claim. The court found an implicit finding that defense expert was more persuasive on the issue of causation. The Commission criticizes the argument in the appeal as misconstruing testimony which "stripped" any analytical or persuasive value and failed to follow a mandatory framework for raising a challenge under 287.495.1(4). The defense noted a gap in medical histories to report bilateral symptoms, and expert opinion that claimant's symptoms of tinnitus could be better explained by use of medication.
Claimant had a companion case alleging injury by occupational disease (carpal tunnel). The case was denied and the appeal was voluntarily dismissed.
Venue: Eastern
Release date: Nov. 12, 2019 (Accident date Oct 8, 2014)
Plot Summary: Claimant was a former employee who was engaged in an altercation at work and fired. A subordinate was offended when claimant criticized behavior as "stupid", and the subordinate spit in claimant's face and knocked him to the ground. Claimant sought worker's compensation benefits for a head injury and tinnitus allegedly caused from the trauma. The Court affirmed a decision of the Commission which denied benefits, and affirmed a denial by the ALJ.
ED 107806
Cast
Hess, Hon.
Gault
Hares
Cohen
Peeples
Comments: The court noted the Commission's award was inconsistent in its findings and the award was "poorly written" and erroneously concluded there was "no" evidence to support the claim. The court found an implicit finding that defense expert was more persuasive on the issue of causation. The Commission criticizes the argument in the appeal as misconstruing testimony which "stripped" any analytical or persuasive value and failed to follow a mandatory framework for raising a challenge under 287.495.1(4). The defense noted a gap in medical histories to report bilateral symptoms, and expert opinion that claimant's symptoms of tinnitus could be better explained by use of medication.
Claimant had a companion case alleging injury by occupational disease (carpal tunnel). The case was denied and the appeal was voluntarily dismissed.
Thursday, November 7, 2019
Statute of limitations bars SIF claim added within 12 months after a settlement
Rick Hunsaker v. Woody's Trucking
Release Date: Nov. 6, 2019 (Accident date Jan. 2011)
Venue: Stoddard County
Plot Summary: The Commission affirms a denial of benefits based on statute of limitations for a claim against the second injury fund.
statute of limitations
Inj. No. 11-004178
https://labor.mo.gov/sites/labor/files/decisions_wc/HunsakerRick11-00417811-6-19.pdf
Cast:
Kasten, ALJ
Green, atty
Rhoades, atty (SIF)
Woiteshek
Shea
Comments:
Claimant in December 2016 filed a claim to add the second injury fund and change an address within 12 months after settling the claim with the employer and asserts a "settlement" counts as a claim for computing the statute of limitations against the Fund.
The ALJ found the claim filed more than 5 years after the date of accident and more than a year after the original claim against the employer and did not comply with requirements of 287.430 when the claim did not supplement or amend the original claim with regards to facts or parts of body, following Naeter v Treasurer of MO, ED 196849.
Claimant raised constitutional arguments that Naeter violated due process and equal protection which were not addressed on the merits.
What's it worth?
Employer had settled for 35% BAW for multiple injuries when a cage of chickens and chain boomer slipped off and struck claimant in the face.
Release Date: Nov. 6, 2019 (Accident date Jan. 2011)
Venue: Stoddard County
Plot Summary: The Commission affirms a denial of benefits based on statute of limitations for a claim against the second injury fund.
statute of limitations
Inj. No. 11-004178
https://labor.mo.gov/sites/labor/files/decisions_wc/HunsakerRick11-00417811-6-19.pdf
Cast:
Kasten, ALJ
Green, atty
Rhoades, atty (SIF)
Woiteshek
Shea
Comments:
Claimant in December 2016 filed a claim to add the second injury fund and change an address within 12 months after settling the claim with the employer and asserts a "settlement" counts as a claim for computing the statute of limitations against the Fund.
The ALJ found the claim filed more than 5 years after the date of accident and more than a year after the original claim against the employer and did not comply with requirements of 287.430 when the claim did not supplement or amend the original claim with regards to facts or parts of body, following Naeter v Treasurer of MO, ED 196849.
Claimant raised constitutional arguments that Naeter violated due process and equal protection which were not addressed on the merits.
What's it worth?
Employer had settled for 35% BAW for multiple injuries when a cage of chickens and chain boomer slipped off and struck claimant in the face.
Thursday, October 31, 2019
Commission denies herniated disc occupational disease claim from working only 17 days
Jerry Sample v Drivers Management LLC, Werner Enterprises
Ace American Insurance
Release Date: Oct. 30, 2019 (Accident date Jan 2, 2019)
Venue: Callaway County
Length: 16 pages
Plot Summary: The Commission affirms a denial of benefits in a hardship hearing for an alleged injury by occupational disease from performing deliveries over the Christmas season which included neck pain and electrical sensations in both arms. A defense expert concluded claimant's employment for 17 days was not the prevailing factor in large C5-6 spinal cord compression and degenerative changes at other levels.
https://labor.mo.gov/sites/labor/files/decisions_wc/SampleJerry17-00670910-30-19.pdf
Inj. No. 17-006709
Cast:
Farmer, ALJ
Kelley, atty
Haeckel, atty
Lee
Fan
Orr
Moore
Cantrell
Chabot
Comments:
Claimant's expert, Dr. Lee, found the disc herniation flowed from claimant's strenuous activity in the absence of any other event to explain what claimant described as an acute, gradual onset of symptoms. ALJ Farmer found claimant already had pre-existing degenerative changes which were not worsened or changed by the work activities. The history of gradual, non-specific onset of symptoms was consistent with a chronic condition.
Ace American Insurance
Release Date: Oct. 30, 2019 (Accident date Jan 2, 2019)
Venue: Callaway County
Length: 16 pages
Plot Summary: The Commission affirms a denial of benefits in a hardship hearing for an alleged injury by occupational disease from performing deliveries over the Christmas season which included neck pain and electrical sensations in both arms. A defense expert concluded claimant's employment for 17 days was not the prevailing factor in large C5-6 spinal cord compression and degenerative changes at other levels.
https://labor.mo.gov/sites/labor/files/decisions_wc/SampleJerry17-00670910-30-19.pdf
Inj. No. 17-006709
Cast:
Farmer, ALJ
Kelley, atty
Haeckel, atty
Lee
Fan
Orr
Moore
Cantrell
Chabot
Comments:
Claimant's expert, Dr. Lee, found the disc herniation flowed from claimant's strenuous activity in the absence of any other event to explain what claimant described as an acute, gradual onset of symptoms. ALJ Farmer found claimant already had pre-existing degenerative changes which were not worsened or changed by the work activities. The history of gradual, non-specific onset of symptoms was consistent with a chronic condition.
Monday, October 28, 2019
Commission affirms PPD benefits in a prevailing factor defense
Sondra Denomy v Francis Howell R-3 School District
Release Date: Oct. 24, 2019 (Accident date March 1, 2013)
Venue: St. Charles County
Plot Summary: A majority of the Commission affirms an award for PPD and other benefits which was defended on expert testimony that a belated diagnosis of a meniscus tear arose from unrelated causes and that her labral hip pathology was due to the "anatomy she was born with."
A 63-year old custodian was holding open a door when people moving parallel bars on a dolly lost control of the bars and it struck claimant and continued down the side of her body producing myofascial injuries and pain syndromes involving the hip, knee and ankle.
Inj. No. 13-012655
https://labor.mo.gov/sites/labor/files/decisions_wc/DenomySondra13-01265510-24-19.pdf
Cast
Landolt, ALJ
Trefts, atty
Levitt, atty
Woiteshek
Volarich
Krause
Quigley
Sheldon
King
Frisella
Memorable Quotes:
"There has been a serious miscarriage of justice against the employer and insurer in this case." (dissent)
Comments:
The ALJ found Dr. Woiteshek "most persuasive" that the accident caused injuries to the hip, knee and ankle but failed to prove an additional back injury, rated by Dr. Volarich. A dissent found gaps in claimant's documented history of symptoms did not support an award of any benefits when a knee symptom is not mentioned for six months.
What's it worth? $114,698
$32,522.25 in PPD
$73,351.11 medical (includes a knee surgery)
Release Date: Oct. 24, 2019 (Accident date March 1, 2013)
Venue: St. Charles County
Plot Summary: A majority of the Commission affirms an award for PPD and other benefits which was defended on expert testimony that a belated diagnosis of a meniscus tear arose from unrelated causes and that her labral hip pathology was due to the "anatomy she was born with."
A 63-year old custodian was holding open a door when people moving parallel bars on a dolly lost control of the bars and it struck claimant and continued down the side of her body producing myofascial injuries and pain syndromes involving the hip, knee and ankle.
Inj. No. 13-012655
https://labor.mo.gov/sites/labor/files/decisions_wc/DenomySondra13-01265510-24-19.pdf
Cast
Landolt, ALJ
Trefts, atty
Levitt, atty
Woiteshek
Volarich
Krause
Quigley
Sheldon
King
Frisella
Memorable Quotes:
"There has been a serious miscarriage of justice against the employer and insurer in this case." (dissent)
Comments:
The ALJ found Dr. Woiteshek "most persuasive" that the accident caused injuries to the hip, knee and ankle but failed to prove an additional back injury, rated by Dr. Volarich. A dissent found gaps in claimant's documented history of symptoms did not support an award of any benefits when a knee symptom is not mentioned for six months.
What's it worth? $114,698
$32,522.25 in PPD
$73,351.11 medical (includes a knee surgery)
Friday, October 25, 2019
Court remands denial of fund benefits based on prior psych conditions
Mary Kay Hazeltine v State of Mo Second Injury Fund
Release Date: Oct 22, 2019 (Accident date: June 15, 2012)
Venue: Eastern District
Plot Summary: The Court reverses a denial of benefits against the SIF and finds the Commission erred to find the award is not supported by sufficient competent evidence. The case is remanded. Claimant alleged prior psychiatric conditions combined with a primary head/psychiatric injury to render her unemployable in the open labor market.
The court distinguishes between "actual" and "potential" obstacles to employment for purposes of triggering Fund liability and finds both may trigger fund benefits if a cautious employer would perceive the prior condition may combine.
ED 107630
https://www.courts.mo.gov/file.jsp?id=145701
Cast
Hess, J
Keefe, D.
Summers, M
Volarich
Liss
Sky
England
(Fund offered no evidence)
Memorable quotes
"The fact Claimant was able to perform job duties without difficulty before the work accident does not indicate that her preexisting disabilities were not a hindrance or obstacle to her employment or reemployment."
"The commission can properly find against a claimant on the ground that claimant did not meet his or her burden of proof regarding causation in a workers' compensation case. This court further recognizes this is so even when the fund presents no evidence at hearing before an ALJ to contradict the claimant's evidence."
Comments
The ALJ found no specific testimony how the prior conditions were a hindrance or obstacle to employment to support an award and found expert testimony was not persuasive. A majority of the commission affirmed the denial.
The court took an unusual step and reversed on the grounds the award by the Commission was not supported by competent evidence and against the overwhelming weight of the evidence.
The court found claimant established pre-existing psychiatric conditions from Dr. Liss, from her own testimony describing a prolonged work absence for 17 years, and testimony that she had obtained medication for her psychiatric conditions.
The commission erred to dismiss opinions of experts when it did address credibility and expressly find or explain why they were not credible. Dr. Sky noted she had "new and exaggerated symptoms" since the work injury Dr. Volarich concluded the prior psychiatric amplified the complaints.
he
The court re-iterated the burden of proof that claimant must show prove the nature and extent of prior disabilities and claimant established differences "not in kind but in degree."
The court identified procedural errors in briefing but addressed the case on the merits.
What's it worth?
$30,000 CLSS for primary involving orthopedic/psychiatric claims
Release Date: Oct 22, 2019 (Accident date: June 15, 2012)
Venue: Eastern District
Plot Summary: The Court reverses a denial of benefits against the SIF and finds the Commission erred to find the award is not supported by sufficient competent evidence. The case is remanded. Claimant alleged prior psychiatric conditions combined with a primary head/psychiatric injury to render her unemployable in the open labor market.
The court distinguishes between "actual" and "potential" obstacles to employment for purposes of triggering Fund liability and finds both may trigger fund benefits if a cautious employer would perceive the prior condition may combine.
ED 107630
https://www.courts.mo.gov/file.jsp?id=145701
Cast
Hess, J
Keefe, D.
Summers, M
Volarich
Liss
Sky
England
(Fund offered no evidence)
Memorable quotes
"The fact Claimant was able to perform job duties without difficulty before the work accident does not indicate that her preexisting disabilities were not a hindrance or obstacle to her employment or reemployment."
"The commission can properly find against a claimant on the ground that claimant did not meet his or her burden of proof regarding causation in a workers' compensation case. This court further recognizes this is so even when the fund presents no evidence at hearing before an ALJ to contradict the claimant's evidence."
Comments
The ALJ found no specific testimony how the prior conditions were a hindrance or obstacle to employment to support an award and found expert testimony was not persuasive. A majority of the commission affirmed the denial.
The court took an unusual step and reversed on the grounds the award by the Commission was not supported by competent evidence and against the overwhelming weight of the evidence.
The court found claimant established pre-existing psychiatric conditions from Dr. Liss, from her own testimony describing a prolonged work absence for 17 years, and testimony that she had obtained medication for her psychiatric conditions.
The commission erred to dismiss opinions of experts when it did address credibility and expressly find or explain why they were not credible. Dr. Sky noted she had "new and exaggerated symptoms" since the work injury Dr. Volarich concluded the prior psychiatric amplified the complaints.
The court re-iterated the burden of proof that claimant must show prove the nature and extent of prior disabilities and claimant established differences "not in kind but in degree."
The court identified procedural errors in briefing but addressed the case on the merits.
What's it worth?
$30,000 CLSS for primary involving orthopedic/psychiatric claims
Tuesday, October 22, 2019
Commission affirms PTD award based on default
Charles Kinney v Dresser-Rand Company
New Hampshire Ins. Co.
Release Date: Oct 18, 2019 (Accident dateNov. 23, 2011)
Venue: St. Louis
Plot Summary: A majority of the commission affirms a PTD award against the employer who failed to attend a hearing or file a timely application for review.
Cast
Keaveny, ALJ
Griffiths
Margolis
England
Memorable quotes:
"Employer never took any steps to contact the Division with its correct address … thus employer bears some responsibility for its lack of notice."
Comments: Claimant reports he worked for Dresser-Rand Co. from 2007-2011 in Louisiana, MO as a laborer and his job involved using a jackhammer and heavy equipment. He sought treatment for his back and underwent a spinal fusion in 2014. He produced an expert opinion that his work at Dresser (and a subsequent employer) was the prevailing factor to develop symptoms and a need for surgical treatment for spondylolisthesis. His expert rated him with partial disability. His vocational expert felt he was unemployable due to his presentation and history of limited function.
The award notes the Employer acknowledged notice of the claim for compensation as it responded to claimant's counsel by letter but did not file an answer or appear. The appeal alleges error due to lack of notice and the appeal arises when the employer's counsel filed an application for review about 5 months after the ALJ issued an award.
The employer argues the default award should be set aside due to mistake or confusion because the employer was selling its business and its personnel was confused by the notice and mistakenly felt it was a garnishment action. The Commission found no evidence that the employer asked for a continuance of an 'imminent' hearing or referred the matter to an attorney or to an insurance company. The claims for compensation were sent to various addresses provided by claimant's counsel that appeared to be culled from the internet.
The notice problem was further compounded by the Division's failure to follow 287.520 to provide notice to the last known address.
The dissenting commissioner felt the default should be set aside absent intentional disregard by the employer, and alleged claimant had only used the "most marginal" attempts to provide the Division with a correct address to notify the employer. The award itself lists 6 alternate names for the employer and describes 3 different possible addresses in addition to what appears to be a 4th address (the agent registered to receive service which appears to have been used only after the award was final).
The Commission does not reach the issue whether it has authority to disturb a judgment registered with the circuit court.
What's it worth?
> 126K in past benefits and ongoing PTD
New Hampshire Ins. Co.
Release Date: Oct 18, 2019 (Accident dateNov. 23, 2011)
Venue: St. Louis
Plot Summary: A majority of the commission affirms a PTD award against the employer who failed to attend a hearing or file a timely application for review.
Cast
Keaveny, ALJ
Griffiths
Margolis
England
Memorable quotes:
"Employer never took any steps to contact the Division with its correct address … thus employer bears some responsibility for its lack of notice."
Comments: Claimant reports he worked for Dresser-Rand Co. from 2007-2011 in Louisiana, MO as a laborer and his job involved using a jackhammer and heavy equipment. He sought treatment for his back and underwent a spinal fusion in 2014. He produced an expert opinion that his work at Dresser (and a subsequent employer) was the prevailing factor to develop symptoms and a need for surgical treatment for spondylolisthesis. His expert rated him with partial disability. His vocational expert felt he was unemployable due to his presentation and history of limited function.
The award notes the Employer acknowledged notice of the claim for compensation as it responded to claimant's counsel by letter but did not file an answer or appear. The appeal alleges error due to lack of notice and the appeal arises when the employer's counsel filed an application for review about 5 months after the ALJ issued an award.
The employer argues the default award should be set aside due to mistake or confusion because the employer was selling its business and its personnel was confused by the notice and mistakenly felt it was a garnishment action. The Commission found no evidence that the employer asked for a continuance of an 'imminent' hearing or referred the matter to an attorney or to an insurance company. The claims for compensation were sent to various addresses provided by claimant's counsel that appeared to be culled from the internet.
The notice problem was further compounded by the Division's failure to follow 287.520 to provide notice to the last known address.
The dissenting commissioner felt the default should be set aside absent intentional disregard by the employer, and alleged claimant had only used the "most marginal" attempts to provide the Division with a correct address to notify the employer. The award itself lists 6 alternate names for the employer and describes 3 different possible addresses in addition to what appears to be a 4th address (the agent registered to receive service which appears to have been used only after the award was final).
The Commission does not reach the issue whether it has authority to disturb a judgment registered with the circuit court.
What's it worth?
> 126K in past benefits and ongoing PTD
Commission affirms SIF total for asymptomatic prior disc disease
James Atchison v Tyson Poultry and Treasurer of Mo.
self-insured
Release Date Oct 16, 2019 (Accident date July 8, 2007)
Venue: St. Louis (venue stipulated to Greene County)
Length: 19 pages
Plot Summary:
The Commission affirms an award of PTD benefits against the SIF on the basis that claimant's multi-level spinal disease (asymptomatic) was a "potential" obstacle or hindrance to employment to support Fund liability when it limited claimant's treatment options for the primary injury, and rejected the assertion that pre-existing disability in the context of a permanent and total disability claim had to be "actual and measurable."
https://labor.mo.gov/sites/labor/files/decisions_wc/AtchisonJames07-08768710-16-19.pdf
Inj. No. 07-087687
Cast:
Elmer, J
DeVoto, atty
Pierce, atty
Garth
Browning
Olive
Weimholdt
Beltz
Memorable Quotes:
"Most importantly, when asked if he could be granted one wish what it would be Claimant responded, "I would like to have "my back" back so I could return to work."
Comments:
Claimant is a 64 year old who fell on some black ice while making a delivery for Tyson Poultry. He established he had an acute disc herniation at L4-5. There is other medical which disputes this diagnosis. He asserts his injury incapacitated his ability to drive and function and he became a "shell" of his former self. (The ALJ notes witness testimony before the accident he was a "machine.") Dr. Garth allocated disability to new and pre-existing conditions and assessed 35% BAW as "new" due to a "inoperable" condition.
The SIF argued there was liability because the prior disability of an asymptomatic back disease was not measurable and did not trigger liability. The Commission found the mandate to find prior disability as "actual and measurable" applied only to partial disability claims, and fund liability was triggered if the prior disability (symptomatic or asymptomatic) represented a potential to employment or to obtaining employment. Claimant treated with injections for the primary injury and was medically advised to avoid a multi-level repair which was "dangerous with many potential complications."
The ALJ found 35% PPD for the primary injury (an unoperated disc herniation) and describes the disc herniation was "inoperable." The ALJ then notes "The fact that there is no medical to the contrary" (that the condition is inoperable) is "not binding upon this Court."
The ALJ finds a synergistic effect because the prior condition (degenerative disc disease) rendered the primary injury inoperable.
Concerning the priors, the ALJ notes the primary injury as a disc herniation. There is testimony summarized that Dr. Garth felt the accident exacerbated the prior condition. The ALJ makes the findings, however, that the multi-level changes were "the result of years of repetitive bending and lifting of 45 pound boxes of chicken for at least the last 12 years of his employment." This would appear to refute the inference that the accident aggravated levels other than L4-5, but the finding exceeds the scope of disputed issues (disability associated with injury by accident, not injury by occupational disease). That finding was not disputed as the only party on appeal was the Fund.
The ALJ allowed the admission of Dr. Myers report under a motion when no objection was filed, although the Fund later asserted a "technical" objection whether the records constituted a report as defined by the statute.
The ALJ awarded total benefits against the Fund. The employer appears to have settled for 35%. The fund's liability of $742.72 weekly benefits for life was tolled for 620 5/7 weeks due to a net settlement in a civil claim against Porter Poultry for more than $460,000.
What's it worth?
35% BAW unoperated disc herniation
Fund total due to intractable pain
self-insured
Release Date Oct 16, 2019 (Accident date July 8, 2007)
Venue: St. Louis (venue stipulated to Greene County)
Length: 19 pages
Plot Summary:
The Commission affirms an award of PTD benefits against the SIF on the basis that claimant's multi-level spinal disease (asymptomatic) was a "potential" obstacle or hindrance to employment to support Fund liability when it limited claimant's treatment options for the primary injury, and rejected the assertion that pre-existing disability in the context of a permanent and total disability claim had to be "actual and measurable."
https://labor.mo.gov/sites/labor/files/decisions_wc/AtchisonJames07-08768710-16-19.pdf
Inj. No. 07-087687
Cast:
Elmer, J
DeVoto, atty
Pierce, atty
Garth
Browning
Olive
Weimholdt
Beltz
Memorable Quotes:
"Most importantly, when asked if he could be granted one wish what it would be Claimant responded, "I would like to have "my back" back so I could return to work."
Comments:
Claimant is a 64 year old who fell on some black ice while making a delivery for Tyson Poultry. He established he had an acute disc herniation at L4-5. There is other medical which disputes this diagnosis. He asserts his injury incapacitated his ability to drive and function and he became a "shell" of his former self. (The ALJ notes witness testimony before the accident he was a "machine.") Dr. Garth allocated disability to new and pre-existing conditions and assessed 35% BAW as "new" due to a "inoperable" condition.
The SIF argued there was liability because the prior disability of an asymptomatic back disease was not measurable and did not trigger liability. The Commission found the mandate to find prior disability as "actual and measurable" applied only to partial disability claims, and fund liability was triggered if the prior disability (symptomatic or asymptomatic) represented a potential to employment or to obtaining employment. Claimant treated with injections for the primary injury and was medically advised to avoid a multi-level repair which was "dangerous with many potential complications."
The ALJ found 35% PPD for the primary injury (an unoperated disc herniation) and describes the disc herniation was "inoperable." The ALJ then notes "The fact that there is no medical to the contrary" (that the condition is inoperable) is "not binding upon this Court."
The ALJ finds a synergistic effect because the prior condition (degenerative disc disease) rendered the primary injury inoperable.
Concerning the priors, the ALJ notes the primary injury as a disc herniation. There is testimony summarized that Dr. Garth felt the accident exacerbated the prior condition. The ALJ makes the findings, however, that the multi-level changes were "the result of years of repetitive bending and lifting of 45 pound boxes of chicken for at least the last 12 years of his employment." This would appear to refute the inference that the accident aggravated levels other than L4-5, but the finding exceeds the scope of disputed issues (disability associated with injury by accident, not injury by occupational disease). That finding was not disputed as the only party on appeal was the Fund.
The ALJ allowed the admission of Dr. Myers report under a motion when no objection was filed, although the Fund later asserted a "technical" objection whether the records constituted a report as defined by the statute.
The ALJ awarded total benefits against the Fund. The employer appears to have settled for 35%. The fund's liability of $742.72 weekly benefits for life was tolled for 620 5/7 weeks due to a net settlement in a civil claim against Porter Poultry for more than $460,000.
What's it worth?
35% BAW unoperated disc herniation
Fund total due to intractable pain
Tuesday, October 15, 2019
Rolling 650 pound patient re-injures claimant's back
Lisa Caldwell v. Missouri Baptist Hospital of Sullivan and Treasurer of Mo as Custodian of Second Injury Fund
Release Date: Oct 9, 2019 (Accident Date Feb 4 2012)
Venue: Franklin County
Plot Summary: A morbidly obese patient weighing 650 pounds rolled off of a gurney while disrobing resulting in back injuries to the claimant who was working as a certified nurse's aide. The majority affirms a PPD award against the Fund of nearly $35,000 based on prior multiple orthopedic injuries which included her spine, and rejects claimant's assertion that she is now permanently and totally disabled.
https://labor.mo.gov/sites/labor/files/decisions_wc/CaldwellLisa12-00782510-09-19.pdf
Inj. No. 12-007825
Cast
Teer, ALJ
Plufka, atty
Bean, SIF
Lee - surgeon
Volarich - PTD
England
Coyle
Hurford
Comments: Dr. Coyle concluded claimant exacerbated her chronic low back pain resulting in no surgical indication, and she proceeded with a L4-5 surgery which was a "bad idea" and resulted in post-laminectomy syndrome. The ALJ noted the subsequent "ill-advised" surgery was the cause of her disabling condition and noted claimant was not credible regarding her testimony and the scope of any disability as she was able to resume full time (light duty) work.
The Commission notes it did not consider any "worsening" of her condition after the surgery relevant as it was not pertinent to finding claimant's disability at the time of MMI (pre-surgery). The Commission regarded claimant's testimony about her self-limitations was given "limited weight" (the ALJ found claimant lacked credibility).
A dissent would have awarded PPD against the Fund based on Dr. Volarich's ratings and awarded 37.5% PPD referable to the primary injury.
What's it worth?
22.5% BAW settlement with employer
SIF load factor 15%
Release Date: Oct 9, 2019 (Accident Date Feb 4 2012)
Venue: Franklin County
Plot Summary: A morbidly obese patient weighing 650 pounds rolled off of a gurney while disrobing resulting in back injuries to the claimant who was working as a certified nurse's aide. The majority affirms a PPD award against the Fund of nearly $35,000 based on prior multiple orthopedic injuries which included her spine, and rejects claimant's assertion that she is now permanently and totally disabled.
https://labor.mo.gov/sites/labor/files/decisions_wc/CaldwellLisa12-00782510-09-19.pdf
Inj. No. 12-007825
Cast
Teer, ALJ
Plufka, atty
Bean, SIF
Lee - surgeon
Volarich - PTD
England
Coyle
Hurford
Comments: Dr. Coyle concluded claimant exacerbated her chronic low back pain resulting in no surgical indication, and she proceeded with a L4-5 surgery which was a "bad idea" and resulted in post-laminectomy syndrome. The ALJ noted the subsequent "ill-advised" surgery was the cause of her disabling condition and noted claimant was not credible regarding her testimony and the scope of any disability as she was able to resume full time (light duty) work.
The Commission notes it did not consider any "worsening" of her condition after the surgery relevant as it was not pertinent to finding claimant's disability at the time of MMI (pre-surgery). The Commission regarded claimant's testimony about her self-limitations was given "limited weight" (the ALJ found claimant lacked credibility).
A dissent would have awarded PPD against the Fund based on Dr. Volarich's ratings and awarded 37.5% PPD referable to the primary injury.
What's it worth?
22.5% BAW settlement with employer
SIF load factor 15%
Friday, October 11, 2019
Restrictions in prior case hinder subsequent claim against the Fund
James Wurth v Treasurer of the Second Injury Fund
Release Date: Oct. 8, 2019
Venue: Eastern District
Plot Summary: The court of appeals affirms a denial of benefits against the Fund, on a "working total" defense.
Claimant alleges he hurt his back in November 2008 and as a result of a combination with pre-existing medical conditions he was unemployable in the open labor market and entitled to SIF benefits. The determination of permanent total is not if one is employed full-time but if one can compete in the open labor market. The Commission found claimant's medical condition leading up to the last accident required accommodation that are not available in the open market. Dr. Volarich in an earlier case indicated that claimant needed to come in late, rest, nap, go home early, etc., Claimant essentially challenges the credibility of his expert in the earlier case and now claims he over-stated the extent of his need for accommodation based on his subsequent ability to work "full-time."
Dr. Volarich was claimant's expert in all of his cases and generated four separate opinions between 2000 and 2009 which provided opinions about work restrictions.
https://www.courts.mo.gov/file.jsp?id=145194
ED 107335
Cast:
Page
Plufka, atty
Kincaid, atty
Volarich
Comments: The decision does not indicate what claimant received as a settlement in the earlier case in which claimant's expert imposed such onerous vocational restrictions.
Release Date: Oct. 8, 2019
Venue: Eastern District
Plot Summary: The court of appeals affirms a denial of benefits against the Fund, on a "working total" defense.
Claimant alleges he hurt his back in November 2008 and as a result of a combination with pre-existing medical conditions he was unemployable in the open labor market and entitled to SIF benefits. The determination of permanent total is not if one is employed full-time but if one can compete in the open labor market. The Commission found claimant's medical condition leading up to the last accident required accommodation that are not available in the open market. Dr. Volarich in an earlier case indicated that claimant needed to come in late, rest, nap, go home early, etc., Claimant essentially challenges the credibility of his expert in the earlier case and now claims he over-stated the extent of his need for accommodation based on his subsequent ability to work "full-time."
Dr. Volarich was claimant's expert in all of his cases and generated four separate opinions between 2000 and 2009 which provided opinions about work restrictions.
https://www.courts.mo.gov/file.jsp?id=145194
ED 107335
Cast:
Page
Plufka, atty
Kincaid, atty
Volarich
Comments: The decision does not indicate what claimant received as a settlement in the earlier case in which claimant's expert imposed such onerous vocational restrictions.
Court affirms PTD against Fund based on rule of necessity
Dale Nivens v Interstate Brands Corp.
and Treasurer of the State of MO
Release Date: Oct. 8, 2019 (Accident date Nov. 14, 2008)
Venue: Western District
Plot Summary: The court of appeals affirms an award of permanent and total disability against the second injury fund, rejecting alleged errors based on the rule of necessity and lack of sufficient evidence.
The court notes the legislature has failed to provide a mechanism to resolve the situation when two commissioner's reach different conclusions and a third commission must break the stalemate even when there may the commissioner may have some interest in the case. In this instance, the Fund objected to Chick "breaking the tie" when he knew claimant personally. Chick's six-year term had expired at the time of the final award. The court disputed the argument that Chick was not "impartial" when the relationship was based on attending the same high school 52 years earlier.
The court also found the Fund's lack of sufficiency of the evidence challenge on 287.495.1(1) failed to show an absence of sufficient evidence based on the framework in Robinson v Loxscreen, 571 S.W.3d 247 (Mo. App. 2019). Claimant testified he had prior constant back pain, his knee affected his ability to push and pull, his heart affected ability to handle materials, and that he had constant knee pain before and after the accident.
WD 82132, WD 82136
https://www.courts.mo.gov/file.jsp?id=145194
Cast:
Witt, Judge
Doner, atty
Ebbert, atty
Harris, atty
Cohen
Weimholt
Lux
Clymer
What's it worth?
35% operated knee with retirement and career-ending restrictions
PTD fund
and Treasurer of the State of MO
Release Date: Oct. 8, 2019 (Accident date Nov. 14, 2008)
Venue: Western District
Plot Summary: The court of appeals affirms an award of permanent and total disability against the second injury fund, rejecting alleged errors based on the rule of necessity and lack of sufficient evidence.
The court notes the legislature has failed to provide a mechanism to resolve the situation when two commissioner's reach different conclusions and a third commission must break the stalemate even when there may the commissioner may have some interest in the case. In this instance, the Fund objected to Chick "breaking the tie" when he knew claimant personally. Chick's six-year term had expired at the time of the final award. The court disputed the argument that Chick was not "impartial" when the relationship was based on attending the same high school 52 years earlier.
The court also found the Fund's lack of sufficiency of the evidence challenge on 287.495.1(1) failed to show an absence of sufficient evidence based on the framework in Robinson v Loxscreen, 571 S.W.3d 247 (Mo. App. 2019). Claimant testified he had prior constant back pain, his knee affected his ability to push and pull, his heart affected ability to handle materials, and that he had constant knee pain before and after the accident.
WD 82132, WD 82136
https://www.courts.mo.gov/file.jsp?id=145194
Cast:
Witt, Judge
Doner, atty
Ebbert, atty
Harris, atty
Cohen
Weimholt
Lux
Clymer
What's it worth?
35% operated knee with retirement and career-ending restrictions
PTD fund
Wednesday, October 9, 2019
Commission affirms findings of a minimal load factor
Gale Wolfmeier v Diocese of Jefferson City and Treasurer of Mo
Missouri Employers Mutual Ins. Co. (settled)
Release date: Oct 4, 2019
Venue: Cole County
Plot Summary: The Commission majority affirms an award of a minimal load factor of 1.75% in a claim against the second injury fund with a primary back injury at 8.75% and a pre-existing hand injury. The commission affirmed a denial of other claims of synergistic load as conclusory, and not clearly established from other prior conditions such as nose bleeds and headaches. A dissenting commission would have increased the amount of a load factor to 5% and considered the prior ankle in any award against the fund.
Inj. No. 12-083494
https://labor.mo.gov/sites/labor/files/decisions_wc/WolfmeierGala12-08349410-04-19.pdf
Cast:
Fischer, ALJ
Kiefer
Cohen
What's it worth?
7 weeks
Missouri Employers Mutual Ins. Co. (settled)
Release date: Oct 4, 2019
Venue: Cole County
Plot Summary: The Commission majority affirms an award of a minimal load factor of 1.75% in a claim against the second injury fund with a primary back injury at 8.75% and a pre-existing hand injury. The commission affirmed a denial of other claims of synergistic load as conclusory, and not clearly established from other prior conditions such as nose bleeds and headaches. A dissenting commission would have increased the amount of a load factor to 5% and considered the prior ankle in any award against the fund.
Inj. No. 12-083494
https://labor.mo.gov/sites/labor/files/decisions_wc/WolfmeierGala12-08349410-04-19.pdf
Cast:
Fischer, ALJ
Kiefer
Cohen
What's it worth?
7 weeks
Tuesday, October 8, 2019
Commission finds no authority to extinguish lien on a 'failure to prosecute' defense
Claudio Lopez v Taylor Roofing and AMS Staff Leasing
Freestone Ins. Co. in Liquidation
Release date : Oct 3, 2019 (Accident date July 31, 2009)
Venue: Jasper County
Plot Summary: Claimant seeks benefits after falling off a roof for an uninsured employer. The ALJ awarded PPD but denied future medical care and denied past medical based on a Medicaid lien when no one appeared for the state on behalf of the lien. The Commission reversed and awards future medical and awards the Medicaid lien.
Inj. No. 09-111744
https://labor.mo.gov/sites/labor/files/decisions_wc/LopezClaudio09-11174410-03-19.pdf
Cast:
Fisher, ALJ
Carbrera
Carter
Sharp
Pierce
Volarich
Memorable quotes:
"As this matter did not involve a settlement, employee would not be able to reactivate his claim in case he needs surgical modification or removal of the hardware."
"Taylor Roofing was aware of and complied with the requirements of the AMS Staff Leasing Agreement for numerous direct employees in 2009 but not for subcontractor Lopez for whatever reason."
Comments:
The ALJ found claimant was treated for ORIF to the hip and wrist, incurred $122,923.08 in medical expenses, but denied liability for Medicaid lien when Mo HealthNet was not present at the final hearing, chose not to appear, chose not to introduce evidence at the hearing, or to show what they have paid or that payments are related to the accident. On appeal, the Commission found the ALJ exceeded her statutory authority and 287.266.10 allowed apportionment between employer and employee but no authority to reduce or extinguish the lien.
The ALJ awarded Dr. Volarich's rating of disability of 30% BAW for the pelvis fracture and 35% of the right wrist. No other expert provided evidence on PPD. The ALJ found Dr. Volarich credible that claimant had "some" pain and some diminished motion. Claimant testified by deposition that he had no health problems with the wrist or the hip as a result of the accident.
The commission reversed and awarded future medical despite the absence of any record of treatment for several years leading up the hearing. He has retained hardware which may or may not require removal in the future. Claimant returned to work as a carpenter. He did not speak English. He had not had therapy or a need for prescriptions after 2010. He raised "no specific issues" regarding his hardware.
The Commission rejected the argument that there was no need for future medical because claimant may require treatment in the future, and Dr. Volarich indicated the possible need for pain management in addition to potential removal of the hardware. The commission found this opinion persuasive even though claimant had not "utilized such care thus far." Further, although 287.140.8 provided a right to re-activation if claimant developed problems with the hardware, the commission found 287.140.8 only applied in settlements and did not apply in hearings.
A dissenting commissioner would not have awarded future medical and found the need for future medical speculative.
The ALJ raised potential constitutional barriers to award future medical against the Fund pursuant to 287.220(15) for benefits incurred after July 1, 2012. It is unclear if this issue was raised on appeal.
Claimant's testimony was found credible that he was paid cash of $780 a week.
What's it worth?
wrist ORIF - 35%
pelvis fx ORIF 30%
Freestone Ins. Co. in Liquidation
Release date : Oct 3, 2019 (Accident date July 31, 2009)
Venue: Jasper County
Plot Summary: Claimant seeks benefits after falling off a roof for an uninsured employer. The ALJ awarded PPD but denied future medical care and denied past medical based on a Medicaid lien when no one appeared for the state on behalf of the lien. The Commission reversed and awards future medical and awards the Medicaid lien.
Inj. No. 09-111744
https://labor.mo.gov/sites/labor/files/decisions_wc/LopezClaudio09-11174410-03-19.pdf
Cast:
Fisher, ALJ
Carbrera
Carter
Sharp
Pierce
Volarich
Memorable quotes:
"As this matter did not involve a settlement, employee would not be able to reactivate his claim in case he needs surgical modification or removal of the hardware."
"Taylor Roofing was aware of and complied with the requirements of the AMS Staff Leasing Agreement for numerous direct employees in 2009 but not for subcontractor Lopez for whatever reason."
Comments:
The ALJ found claimant was treated for ORIF to the hip and wrist, incurred $122,923.08 in medical expenses, but denied liability for Medicaid lien when Mo HealthNet was not present at the final hearing, chose not to appear, chose not to introduce evidence at the hearing, or to show what they have paid or that payments are related to the accident. On appeal, the Commission found the ALJ exceeded her statutory authority and 287.266.10 allowed apportionment between employer and employee but no authority to reduce or extinguish the lien.
The ALJ awarded Dr. Volarich's rating of disability of 30% BAW for the pelvis fracture and 35% of the right wrist. No other expert provided evidence on PPD. The ALJ found Dr. Volarich credible that claimant had "some" pain and some diminished motion. Claimant testified by deposition that he had no health problems with the wrist or the hip as a result of the accident.
The commission reversed and awarded future medical despite the absence of any record of treatment for several years leading up the hearing. He has retained hardware which may or may not require removal in the future. Claimant returned to work as a carpenter. He did not speak English. He had not had therapy or a need for prescriptions after 2010. He raised "no specific issues" regarding his hardware.
The Commission rejected the argument that there was no need for future medical because claimant may require treatment in the future, and Dr. Volarich indicated the possible need for pain management in addition to potential removal of the hardware. The commission found this opinion persuasive even though claimant had not "utilized such care thus far." Further, although 287.140.8 provided a right to re-activation if claimant developed problems with the hardware, the commission found 287.140.8 only applied in settlements and did not apply in hearings.
A dissenting commissioner would not have awarded future medical and found the need for future medical speculative.
The ALJ raised potential constitutional barriers to award future medical against the Fund pursuant to 287.220(15) for benefits incurred after July 1, 2012. It is unclear if this issue was raised on appeal.
Claimant's testimony was found credible that he was paid cash of $780 a week.
What's it worth?
wrist ORIF - 35%
pelvis fx ORIF 30%
Monday, October 7, 2019
Guard thrashed by prisoner awarded total disability
Sabrina Williams v City of Jennings
Missouri Employers Mutual Ins. Co.
Release Date: Oct 3, 2019
Venue: St. Louis
Plot summary: The commission affirms a permanent and total award to a corrections officer who was kicked and hit by an inmate during an escape attempt. She had a broken tooth, a swollen eye, and sore back pain and developed PTSD and panic disorder and exacerbated pre-existing psychiatric issues.
Inj. No. 10-070906
https://labor.mo.gov/sites/labor/files/decisions_wc/WilliamsSabrina10-07090610-03-19.pdf
Cast:
Keaveny, ALJ
Moreland
McHugh
Hudson
Brockman
Bassett
Memorable quotes: "Claimant endured a bloody beating that was reported to last 5 minutes or more. As a reference, a round in a professional boxing match only lasts three minutes."
Comments:
The ALJ notes the plaintiff's expert more persuasive because the report reflects "more effort," showed a review of all the records, and was based on an interview.
The ALJ notes the last accident was "so dramatic" that it could be considered in isolation to render claimant unemployable, despite prior psychiatric disorders that required treatment and caused work absences. Dr. Brockman attributed 40% new disability and an additional 30% attributable to exacerbation of prior depression and anxiety and felt claimant was unemployable. She did not identify a conversion disorder. The ALJ notes claimant attempted self-harm before and after the accident. Dr. Bassett, the employer's expert, felt she had developed permanent restrictions that prevented dealing with members of the public and developed 30% BAW new disability and the accident had aggravated a conversion disorder which was in remission.
The employer had stipulated to open medical for the 41-year old worker.
A dissent considered claimant totally disabled but not based on the last accident alone due to the "prior significant mental health episodes...."
What's it worth?
PTSD - total disability
Missouri Employers Mutual Ins. Co.
Release Date: Oct 3, 2019
Venue: St. Louis
Plot summary: The commission affirms a permanent and total award to a corrections officer who was kicked and hit by an inmate during an escape attempt. She had a broken tooth, a swollen eye, and sore back pain and developed PTSD and panic disorder and exacerbated pre-existing psychiatric issues.
Inj. No. 10-070906
https://labor.mo.gov/sites/labor/files/decisions_wc/WilliamsSabrina10-07090610-03-19.pdf
Cast:
Keaveny, ALJ
Moreland
McHugh
Hudson
Brockman
Bassett
Memorable quotes: "Claimant endured a bloody beating that was reported to last 5 minutes or more. As a reference, a round in a professional boxing match only lasts three minutes."
"A fellow officer tried to get her out but he did not have the right key. … She looked to another inmate for help and received none."
"Claimant was unwilling to participate in the evaluation unless her friend… was allowed to accompany her....approximately 30 minutes into the interview she voiced a willingness to conduct the interview alone. …."
Comments:
The ALJ notes the plaintiff's expert more persuasive because the report reflects "more effort," showed a review of all the records, and was based on an interview.
The ALJ notes the last accident was "so dramatic" that it could be considered in isolation to render claimant unemployable, despite prior psychiatric disorders that required treatment and caused work absences. Dr. Brockman attributed 40% new disability and an additional 30% attributable to exacerbation of prior depression and anxiety and felt claimant was unemployable. She did not identify a conversion disorder. The ALJ notes claimant attempted self-harm before and after the accident. Dr. Bassett, the employer's expert, felt she had developed permanent restrictions that prevented dealing with members of the public and developed 30% BAW new disability and the accident had aggravated a conversion disorder which was in remission.
The employer had stipulated to open medical for the 41-year old worker.
A dissent considered claimant totally disabled but not based on the last accident alone due to the "prior significant mental health episodes...."
What's it worth?
PTSD - total disability
Friday, October 4, 2019
Expert who misidentifies body part and medical history found to be less credible
Kenna Morris v Curators of the University of Mo and Treasurer of MO
self insured
Release Date: Oct 3, 2019 (Accident date Oct 11, 2012)
Venue: Boone County
Plot Summary: The Commission affirms a partial disability award against the second injury fund in a majority opinion and rejects the contention that a 58 year old hospitality coordinator is now unemployable in the open labor market. The ALJ notes claimant was working regularly and pursuing a graduate degree until her capacity to work was derailed by a stroke.
Inj. No. 12-079705
https://labor.mo.gov/sites/labor/files/decisions_wc/MorrisKenna12-07970510-03-19.pdf
Cast:
Powell, ALJ
Kiefer, atty
Eliason, atty
Cohen
Choma
Skahan
Frisella
Snyder
Comments: The ALJ finds contemporaneous treating records more persuasive than Dr. Cohen who was found not credible when he attributed lumbar complaints to the accident and claimant stated the accident involved the thoracic spine and mischaracterized the scope of prior treatment. A dissent felt claimant established she was unable to maintain employment before her stroke. The majority clarifies findings of fact how long she attended classes to work on her master's.
What's it worth?
thoracic 5%
right shoulder 21.8% - capsular release
self insured
Release Date: Oct 3, 2019 (Accident date Oct 11, 2012)
Venue: Boone County
Plot Summary: The Commission affirms a partial disability award against the second injury fund in a majority opinion and rejects the contention that a 58 year old hospitality coordinator is now unemployable in the open labor market. The ALJ notes claimant was working regularly and pursuing a graduate degree until her capacity to work was derailed by a stroke.
Inj. No. 12-079705
https://labor.mo.gov/sites/labor/files/decisions_wc/MorrisKenna12-07970510-03-19.pdf
Cast:
Powell, ALJ
Kiefer, atty
Eliason, atty
Cohen
Choma
Skahan
Frisella
Snyder
Comments: The ALJ finds contemporaneous treating records more persuasive than Dr. Cohen who was found not credible when he attributed lumbar complaints to the accident and claimant stated the accident involved the thoracic spine and mischaracterized the scope of prior treatment. A dissent felt claimant established she was unable to maintain employment before her stroke. The majority clarifies findings of fact how long she attended classes to work on her master's.
What's it worth?
thoracic 5%
right shoulder 21.8% - capsular release
Court finds exception for claims for Fund benefits "filed" after January 2014
Bruce Krysl v Treasurer of Missouri as custodian of the second injury fund
Release Date: Oct 1, 2019
Venue: Eastern District
Length: 5 pages
Plot Summary: A worker can pursue benefits for occupational disease for a claim filed after January 2014 in some circumstances according the court of appeals, despite language in 287.220.3(1) which appears to bar such claims filed after January 2014.
Section 287.220.3(1) provides:
All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.
In Krysl the second injury fund agreed by stipulation claimant had carpal tunnel in 2013 (before the effective date of the change) but denied benefits because a claim was filed in 2014, after the effective date. The Commission denied benefits, reversing a prior award of benefits. The Court of Appeals reversed and turned on the definition of "claim" and found the fund's argument would produce an unconstitutional result of ex post facto law.
The court found the timing of when the claim was "filed" was not the issue to trigger the statute, but that the issue was whether the occupational disease was disabling or not disabling at the time the statute changed. In this case there was a stipulation that claimant had an occupational disease (presumably a "disabling" occupational disease) prior the change in the law. The court distinguished this from the scenario in which someone had a disease before January 2014, but it did not rise to the level to become disabling after January 2014, in which case the statute precluded the claim.
The decision acknowledges difficulties to divine statutory intent when he statutory language was unclear and forced to conclude the clause "filed after..." had to reach to some other meaning other than "filed" to harmonize the entire statute.
The decision affirms the statutory intent to bar partial claims against the fund filed after January 2014 when there is a condition or disability occupational disease which arises after that date, and allows such claims in what the court describes as a narrow exception only when the compensable condition arises before that date.
Cast
Page, Judge
Gregory, atty
Campbell, atty
Volarich
Comments:
ALJ Ottenad wrote the original award against the Fund for $10,144.90 based on prior disability of 37.5% BAW disability for prior diabetes based on expert opinion of Dr. Volarich. The ALJ noted neither party made the "date" an issue in dispute until after the trial was over. "Since no issue was raised at trial about the date of injury and since the parties stipulated to a date of injury of January I, 2013 at trial, I find that I am bound by the stipulation of the parties at hearing and will not comment further. on this matter first raised in the post-trial briefs."
The Commission concluded that the ALJ misapplied the law. "We note that the administrative law judge did not apply the law as amended in 2013, but the law as provided in 2005. The 2013 law is the appropriate law for this matter as the claim was filed on July 5, 2016.... We acknowledge that parties stipulated to the date of injury of the occupational disease as January 1, 2013. However, the stipulation does not change the filing date. Nor does such stipulation prevail over the language of the statute. "
Release Date: Oct 1, 2019
Venue: Eastern District
Length: 5 pages
Plot Summary: A worker can pursue benefits for occupational disease for a claim filed after January 2014 in some circumstances according the court of appeals, despite language in 287.220.3(1) which appears to bar such claims filed after January 2014.
Section 287.220.3(1) provides:
All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.
In Krysl the second injury fund agreed by stipulation claimant had carpal tunnel in 2013 (before the effective date of the change) but denied benefits because a claim was filed in 2014, after the effective date. The Commission denied benefits, reversing a prior award of benefits. The Court of Appeals reversed and turned on the definition of "claim" and found the fund's argument would produce an unconstitutional result of ex post facto law.
The court found the timing of when the claim was "filed" was not the issue to trigger the statute, but that the issue was whether the occupational disease was disabling or not disabling at the time the statute changed. In this case there was a stipulation that claimant had an occupational disease (presumably a "disabling" occupational disease) prior the change in the law. The court distinguished this from the scenario in which someone had a disease before January 2014, but it did not rise to the level to become disabling after January 2014, in which case the statute precluded the claim.
The decision acknowledges difficulties to divine statutory intent when he statutory language was unclear and forced to conclude the clause "filed after..." had to reach to some other meaning other than "filed" to harmonize the entire statute.
The decision affirms the statutory intent to bar partial claims against the fund filed after January 2014 when there is a condition or disability occupational disease which arises after that date, and allows such claims in what the court describes as a narrow exception only when the compensable condition arises before that date.
2019 MO. APP. Lexis 1572
Prequel
Cast
Page, Judge
Gregory, atty
Campbell, atty
Volarich
Comments:
ALJ Ottenad wrote the original award against the Fund for $10,144.90 based on prior disability of 37.5% BAW disability for prior diabetes based on expert opinion of Dr. Volarich. The ALJ noted neither party made the "date" an issue in dispute until after the trial was over. "Since no issue was raised at trial about the date of injury and since the parties stipulated to a date of injury of January I, 2013 at trial, I find that I am bound by the stipulation of the parties at hearing and will not comment further. on this matter first raised in the post-trial briefs."
The Commission concluded that the ALJ misapplied the law. "We note that the administrative law judge did not apply the law as amended in 2013, but the law as provided in 2005. The 2013 law is the appropriate law for this matter as the claim was filed on July 5, 2016.... We acknowledge that parties stipulated to the date of injury of the occupational disease as January 1, 2013. However, the stipulation does not change the filing date. Nor does such stipulation prevail over the language of the statute. "
Wednesday, October 2, 2019
Commission can reasonably infer PTD from the evidence
Ronald Williams v Bill Williams Construction Co.
Auto Owners Ins. Co.
Release Date: Sept 26, 2019 (Accident date April 13, 2011)
Venue: St. Louis County
Plot Summary: Claimant is a 69-year old carpenter who injured his right shoulder when it "popped" at work and he ultimately underwent 3 shoulder surgeries including a shoulder replacement. The SIF appealed an award of PTD benefits as no medical expert expressly made the finding that claimant's prior one-eye blindness and shoulder injury rendered him unemployable. The Commission affirmed the award and concluded the finding of PTD was supported by reasonable inference.
Inj. No. 11-02708
https://labor.mo.gov/sites/labor/files/decisions_wc/WilliamsRonald11-02770809-26-19.pdf
Cast:
Kohner, ALJ
Muchnick
Volarich
Gonzalez
Hughes
Comments:
The Commission found 287.190.6(2) requires claimant to attest authoritatively, confirm, manifest clearly or make evident or reveal the extent of an employee's physical functioning by making findings on examination, restrictions or recommendations as to the employee's physical abilities referable to the diagnosis. . The commission was free to consider the opinions of multiple experts to reach opinions about the capacity to work, and a finding that a person was capable of "sedentary" work from a medical standpoint did not preclude a vocational finding that the person was unemployable.
The WD Court of Appeals rejected a similar argument a year ago in Moss v Treasurer of the State of MO
2018 MO App. Lexis 1663 (Mo. App. 2018)
What's it worth?
shoulder 45% PPD
SIF - total
Auto Owners Ins. Co.
Release Date: Sept 26, 2019 (Accident date April 13, 2011)
Venue: St. Louis County
Plot Summary: Claimant is a 69-year old carpenter who injured his right shoulder when it "popped" at work and he ultimately underwent 3 shoulder surgeries including a shoulder replacement. The SIF appealed an award of PTD benefits as no medical expert expressly made the finding that claimant's prior one-eye blindness and shoulder injury rendered him unemployable. The Commission affirmed the award and concluded the finding of PTD was supported by reasonable inference.
Inj. No. 11-02708
https://labor.mo.gov/sites/labor/files/decisions_wc/WilliamsRonald11-02770809-26-19.pdf
Cast:
Kohner, ALJ
Muchnick
Volarich
Gonzalez
Hughes
Comments:
The Commission found 287.190.6(2) requires claimant to attest authoritatively, confirm, manifest clearly or make evident or reveal the extent of an employee's physical functioning by making findings on examination, restrictions or recommendations as to the employee's physical abilities referable to the diagnosis. . The commission was free to consider the opinions of multiple experts to reach opinions about the capacity to work, and a finding that a person was capable of "sedentary" work from a medical standpoint did not preclude a vocational finding that the person was unemployable.
The WD Court of Appeals rejected a similar argument a year ago in Moss v Treasurer of the State of MO
2018 MO App. Lexis 1663 (Mo. App. 2018)
What's it worth?
shoulder 45% PPD
SIF - total
Tuesday, October 1, 2019
Worker fails to show accident caused a new medical condition
Reginald Jones v Orbital ATK
Indemnity Ins Co of N. America
Release Date: Sept. 12, 2019 (Accident date April 3, 2013)
Venue: Jackson County
Plot Summary: Claimant who had a prior ACL knee surgery failed to show a new injury by accident when he stepped in a hole at work caused a new medical condition (personal injury). Claimant's expert felt claimant was a candidate for knee arthroscopy and defense expert felt claimant required TKR due to arthritis. The defense expert indicated it was possible for the accident to cause the alleged medical conditions but that the accident did not cause them.
Inj. No. 13-031100
https://labor.mo.gov/sites/labor/files/decisions_wc/JonesReggie13-03110009-12-19.pdf
Cast:
Siedlik
Jones, atty
Roby, atty
Stuckmeyer 25%
Samuelson
Strong
Memorable Quotes
"The difference being Tillotson had a torn meniscus whereas here, the Employee was not found to have sustained more than an aggravation of his pre-existing condition...."
Comments
The majority finds defense experts were more credible noting they were orthopedic surgeons and were involved in active treatment rather than Dr. Stuckmeyer who performed a singular exam, he was not involved in treatment of anyone for several years, and comments the expert was known by the Commission "by virtue of his numerous reports offered before the Division on behalf of employees."
The commission notes that claimant's testimony that he was suffering from "constant and unrelenting pain" that impacted his lifestyle and ability was weakened because he had worked at two subsequent jobs and not availed himself of "equitable relief" or sought care through alternate sources, such as the V.A.
The ALJ noted the employer apparently admitted accident that claimant snagged his foot at work, although the ALJ when he described testimony about the accident noted claimant was "vague" in other details.
A dissent argued that claimant's expert was more credible that claimant had a new medical condition (aggravation) and a medical disability to support a temporary award and that the majority appears to find aggravations are not compensable injuries.
Indemnity Ins Co of N. America
Release Date: Sept. 12, 2019 (Accident date April 3, 2013)
Venue: Jackson County
Plot Summary: Claimant who had a prior ACL knee surgery failed to show a new injury by accident when he stepped in a hole at work caused a new medical condition (personal injury). Claimant's expert felt claimant was a candidate for knee arthroscopy and defense expert felt claimant required TKR due to arthritis. The defense expert indicated it was possible for the accident to cause the alleged medical conditions but that the accident did not cause them.
Inj. No. 13-031100
https://labor.mo.gov/sites/labor/files/decisions_wc/JonesReggie13-03110009-12-19.pdf
Cast:
Siedlik
Jones, atty
Roby, atty
Stuckmeyer 25%
Samuelson
Strong
Memorable Quotes
"The difference being Tillotson had a torn meniscus whereas here, the Employee was not found to have sustained more than an aggravation of his pre-existing condition...."
Comments
The majority finds defense experts were more credible noting they were orthopedic surgeons and were involved in active treatment rather than Dr. Stuckmeyer who performed a singular exam, he was not involved in treatment of anyone for several years, and comments the expert was known by the Commission "by virtue of his numerous reports offered before the Division on behalf of employees."
The commission notes that claimant's testimony that he was suffering from "constant and unrelenting pain" that impacted his lifestyle and ability was weakened because he had worked at two subsequent jobs and not availed himself of "equitable relief" or sought care through alternate sources, such as the V.A.
The ALJ noted the employer apparently admitted accident that claimant snagged his foot at work, although the ALJ when he described testimony about the accident noted claimant was "vague" in other details.
A dissent argued that claimant's expert was more credible that claimant had a new medical condition (aggravation) and a medical disability to support a temporary award and that the majority appears to find aggravations are not compensable injuries.
Expert opinion more credible based on more facts
Jessica Hurd v SSM Health Care St. Louis
Release date: Sept. 5, 2019
Venue: St. Louis
Plot summary: The Commission affirms a PPD award for knee strain/syndrome when a 32-year old tripped and fell and rejects the defense argument that the award was not based on objective evidence. Claimant received a brief course of treatment but reported continued symptoms with squatting, standing and "somewhat" weak hamstrings. The Commission finds the employee's expert more credible as more "fully informed" based on more complete treating records and more fully documented findings
Comments
The record was ambiguous whether the claimant's expert had reviewed the MRI as reported by the ALJ. The Commission found this could be reasonably inferred as the expert had reviewed the "records.
The ALJ noted knee injuries are "problematic" as "ambulation injuries" and lack of symptoms while claimant performed sedentary work was not dispositive of the extent of disability. The ALJ noted the award "could have" been higher with "more objective findings." The Commission notes it has the authority as the fact finder, and there was nothing in 287.190.6(2) that required reversal.
What's it worth?
15% knee
Release date: Sept. 5, 2019
Venue: St. Louis
Plot summary: The Commission affirms a PPD award for knee strain/syndrome when a 32-year old tripped and fell and rejects the defense argument that the award was not based on objective evidence. Claimant received a brief course of treatment but reported continued symptoms with squatting, standing and "somewhat" weak hamstrings. The Commission finds the employee's expert more credible as more "fully informed" based on more complete treating records and more fully documented findings
Inj. No 17-037838
Cast:
Denigan
Sievers
Volarich - paellofemoral syndrome 20%, 22.5%
Karre 0%
Memorable quotes:
"it may be observed in hindsight that Employer under-treated Claimant given the persistent complaint and, with the standing diagnosis of patellofemoral syndrome, perhaps beyond the expertise of an urgent are physician." … . (ALJ)
Comments
The record was ambiguous whether the claimant's expert had reviewed the MRI as reported by the ALJ. The Commission found this could be reasonably inferred as the expert had reviewed the "records.
The ALJ noted knee injuries are "problematic" as "ambulation injuries" and lack of symptoms while claimant performed sedentary work was not dispositive of the extent of disability. The ALJ noted the award "could have" been higher with "more objective findings." The Commission notes it has the authority as the fact finder, and there was nothing in 287.190.6(2) that required reversal.
What's it worth?
15% knee
No MO SIF liaiblity for combo of prior Parkinson's and minor hearing loss
Phillip Guinn v Solo Cup
Zurich American Ins. Co, Treasurer of Mo
Release Date: Sept. 26, 2019 (last employed 2006)
Venue: Southern District
Summary: The Commission affirms a denial of benefits a second time of an alleged PTD against the second injury fund and finds claimant failed to prove a right to benefits under 287.200.2 that the SIF claim is based on pre-existing permanent partial disability. The employer had settled the case involving alleged hearing loss.
Claimant, 63, retired in 2006 and was awarded social security benefits likely due to Parkinson's disease. He reports the condition became progressively worse and he could no longer do his job and in his last year he would 'essentially stand around.' In 2013 he filed a claim against the second injury fund and sought PTD benefits because of his hearing loss, tinnitus, and the prior Parkinson's, which was diagnosed in 2003.
The SIF raised defenses of injury by occupational disease, notice and statute of limitations and SIF liability. The experts reached different opinions whether claimant was unemployable solely because of his Parkinson's disease. Dr. Koprivica, claimant's expert, assigned additional disability for 2.45% for hearing impairment and 12.5% for tinnitus. Dr. Parmet, the SIF expert, felt there was no measurable degree of disability of speech reception thresholds and discrimination scores as a result of the tinnitus and that his hearing loss was likely due to occupational noise exposure (conductive) as well as sensorineural forms associated with Parkinson's disease and age.
The ALJ awarded total benefits against the Fund. The commission reversed and found the claim barred by the statute of limitations. The court of appeals reversed and found the claim was not discoverable that claimant had an occupational disease until January 17, 2013 when he filed a claim against the employer (In May 2013 his expert told him the condition was work related). The Commission denied benefits when the case is on remand and find claimant's prior Parkinson's disease reached a level of severity that the prior condition was not "partial" disability to qualify for benefits and rendered claimant unable to work in the open labor force before consideration of any the hearing loss.
A dissenting commissioner would have awarded PTD benefits.
Inj. No. 06-136330
https://labor.mo.gov/sites/labor/files/decisions_wc/GuinnPhillip06-13633009-26-19.pdf
Cast
Wilson, ALJ (original decision)
Hosmer, atty
Burks, atty
Koprovica
Parmet
North
Duff
What's it worth?
benefits denied
Zurich American Ins. Co, Treasurer of Mo
Release Date: Sept. 26, 2019 (last employed 2006)
Venue: Southern District
Summary: The Commission affirms a denial of benefits a second time of an alleged PTD against the second injury fund and finds claimant failed to prove a right to benefits under 287.200.2 that the SIF claim is based on pre-existing permanent partial disability. The employer had settled the case involving alleged hearing loss.
Claimant, 63, retired in 2006 and was awarded social security benefits likely due to Parkinson's disease. He reports the condition became progressively worse and he could no longer do his job and in his last year he would 'essentially stand around.' In 2013 he filed a claim against the second injury fund and sought PTD benefits because of his hearing loss, tinnitus, and the prior Parkinson's, which was diagnosed in 2003.
The SIF raised defenses of injury by occupational disease, notice and statute of limitations and SIF liability. The experts reached different opinions whether claimant was unemployable solely because of his Parkinson's disease. Dr. Koprivica, claimant's expert, assigned additional disability for 2.45% for hearing impairment and 12.5% for tinnitus. Dr. Parmet, the SIF expert, felt there was no measurable degree of disability of speech reception thresholds and discrimination scores as a result of the tinnitus and that his hearing loss was likely due to occupational noise exposure (conductive) as well as sensorineural forms associated with Parkinson's disease and age.
The ALJ awarded total benefits against the Fund. The commission reversed and found the claim barred by the statute of limitations. The court of appeals reversed and found the claim was not discoverable that claimant had an occupational disease until January 17, 2013 when he filed a claim against the employer (In May 2013 his expert told him the condition was work related). The Commission denied benefits when the case is on remand and find claimant's prior Parkinson's disease reached a level of severity that the prior condition was not "partial" disability to qualify for benefits and rendered claimant unable to work in the open labor force before consideration of any the hearing loss.
A dissenting commissioner would have awarded PTD benefits.
Inj. No. 06-136330
https://labor.mo.gov/sites/labor/files/decisions_wc/GuinnPhillip06-13633009-26-19.pdf
Cast
Wilson, ALJ (original decision)
Hosmer, atty
Burks, atty
Koprovica
Parmet
North
Duff
What's it worth?
benefits denied
Monday, September 30, 2019
Commission denies benefits when risk source is an equal exposure
Pauline Nugent v State of Mo Missouri State University
Release Date: 9/5/2019
Venue: Springfield, MO
Plot Summary: Commission affirms a denial of benefits that claimant failed to prove a wrist injury arose from an identifiable risk source when claimant tripped over a parking lot island when claimant had experienced a equal exposure to same island and risk of falling in her in non-occupational life.
Inj. No. 17-0110830 2019 MO WCLR LEXIS 65
https://labor.mo.gov/sites/labor/files/decisions_wc/NugentPauline17-011083090519.pdf
Cast:
Fischer, ALJ
Alberhasky
Harris
Bang
Mullins
Comments:
287.020.2 provides....
"In this case, there is no evidence that Employee was carrying or wearing any item related to her employment. She testified the only thing she was carrying was her handbag, which contained personal items....."
"Furthermore, the evidence establishes that Employee when injured was walking in a parking lot that she walks in on occasions in her normal non-employment life. In fact Employee had, just moments before her alleged work related fall, walked in the very same parking lot, with the very same parking island in her normal non-employment life when she went to the United State Post Office located in the Glen Isle Center on personal business. Employee also testified that since the fall in February 2017, she has been in the same parking lot on personal non-employment business
Employee's own testimony establishes that she is routinely exposed to similar parking islands in similar parking lots that she frequents in her normal non-employment life."
The cases arises on unique facts in which claimant identifies an exposure to an identical hazard at work and away from work. There is further analysis that the cause did not flow from any identifiable hazard or defect of the island.
What's it worth?
Denied.
Release Date: 9/5/2019
Venue: Springfield, MO
Plot Summary: Commission affirms a denial of benefits that claimant failed to prove a wrist injury arose from an identifiable risk source when claimant tripped over a parking lot island when claimant had experienced a equal exposure to same island and risk of falling in her in non-occupational life.
Inj. No. 17-0110830 2019 MO WCLR LEXIS 65
https://labor.mo.gov/sites/labor/files/decisions_wc/NugentPauline17-011083090519.pdf
Cast:
Fischer, ALJ
Alberhasky
Harris
Bang
Mullins
Comments:
287.020.2 provides....
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.
"In this case, there is no evidence that Employee was carrying or wearing any item related to her employment. She testified the only thing she was carrying was her handbag, which contained personal items....."
"Furthermore, the evidence establishes that Employee when injured was walking in a parking lot that she walks in on occasions in her normal non-employment life. In fact Employee had, just moments before her alleged work related fall, walked in the very same parking lot, with the very same parking island in her normal non-employment life when she went to the United State Post Office located in the Glen Isle Center on personal business. Employee also testified that since the fall in February 2017, she has been in the same parking lot on personal non-employment business
Employee's own testimony establishes that she is routinely exposed to similar parking islands in similar parking lots that she frequents in her normal non-employment life."
The cases arises on unique facts in which claimant identifies an exposure to an identical hazard at work and away from work. There is further analysis that the cause did not flow from any identifiable hazard or defect of the island.
What's it worth?
Denied.
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