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....

  (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.

Court of Appeals affirms an award for spouse providing emotional support

Ronald Reynolds v Wilcox Truck Line, Inc.

Venue:  Western District

Release date:  Sept. 17, 2019

pages:  18

Plot Summary:  The Court of Appeals affirms a Commission award of permanent and  total disability benefits and affirms an award for nursing services provided by his wife which includes emotional support for the worker's PTSD.

Claimant's  truck overturned  in 2007 and he escaped the wreckage before it caught fire and burned.  He was diagnosed with PTSD and major depressive disorder. Claimant's wife quit her job to care for her husband and asserts she spends 20 hours a day "to keep him calm" when he had panic attacks among other activities.   The ALJ (Miner) denied nursing benefits but the commission found the services were compensable because they were 'nursing' care distinguishable from services of a spouse 

WD 81969    2019 MO APP. LEXIS 1459    https://www.courts.mo.gov/file.jsp?id=144334

Prequel:  

https://labor.mo.gov/sites/labor/files/decisions_wc/ReynoldsRonald07-065590070318.pdf

Cast:

Hardwick, Judge

Lanham, atty

Powell, atty

Steven Akeson

Dale Halfaker

Stanley Butts

Gary Weimholt  

Jennifer Lynch

Memorable Quotes:

"the legislature demonstrated that it is perfectly capable of abrogating previous opinions it finds objectionable"

Comments:

The crux of the employer's argument is the types of the services the spouse performed were not "real" nursing services and that the commission was writing checks for someone to perform "normal" activities to support a spouse emotionally  Claimant  quit her job, and argues the scope of duties were extensive (20 hours a day) and she was  involved in other medical management activities rather than just emotional assurance to make her injured spouse feel someone had his back. 

The court found persuasive the argument that the activities could be characterized as nursing duties that would be medically necessary if the spouse did not provide them rather than drawing the line in the sand of what an "ordinary" spouse might be expected to perform. To that extent, the court seemed to suggest the employer would be obligated to find d a nurse to perform similar tasks such as managing meds and could pay a nurse if it did not want to pay the spouse.  The findings are unclear if claimant simply could not perform the task (self medical management, for example) or if the spouse simply assumed the duties and role to perform the activity and wants to be paid as an after-thought.   The Commission reduced the amount of compensation the spouse had sought for her services from essentially round the clock to 3 days a week.  
  
The court also dismissed the employer's argument that its defense was compromised by claimant's refusal to appear for a psychiatric exam.   The court criticized the employer's argument as "thinly disguised invitation" to re-visit the issue of credibility and failed to show why the ALJ was wrong to deny further psychiatric evaluation based on opinion evidence that more exams would "endanger" him. 

Claimant's return to work for a trial period did not defeat a claim of total disability and claimant's activity on a cattle farm which he claims he needed constant supervision did not establish he was capable of working in the open labor market.  Similarly, post-accident conduct to not seek employment did not negate a finding that he was unemployable when that conclusion was supported by expert opinion.

The court noted that pre-reform allowed compensation to allow an award of nursing services for a spouse.  The court found section 287.800.1 and its mandate for strict construction did not require reversal of these cases.  The court relied upon a dictionary definition to allow nursing that included duties of a person skilled in caring for and waiting on the infirm, the injured, or the sick, which could include one especially trained to carry out such duties under the supervision of a physician.  The court found no legislative purpose to abrogate the earlier cases or a more restrictive scope of services.  

What's it worth?

PTD for PTSD/Depression with open medical.

Appeal fails in allergy case when worker does not identify a specific error in her application for review

Ali Crawford v Ronald McDonald House Charities

Release Date:  Sept. 26, 2019  (2012 Accident Date)

Venue:  Southern District 

Plot Summary:  Court of Appeals affirms a dismissal of claimant's appeal, and finds  that the Commission did not act without or in excess of its powers when it dismissed an appeal because of a failure to comply with 8 CSR 20-3.030(3)(A) which requires the applicant to state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported.  In the case the ALJ found the employer's expert more credible and denied benefits.  

https://www.courts.mo.gov/file.jsp?id=144693

No. SD 36028   Mo App. Lexis 1534

Cast

Sheffield, J.

Newman, atty

Hecht, atty

Comments:  Claimant alleged a severe allergic reaction while at work because of an exposure to latex and presented records and an expert opinion to support his claim.  The ALJ found the employer's expert more credible and denied the claim (The underlying decision is not published).  Claimant appealed and alleged:

1.  The judge erred in finding that the Employer/Insurer was not liable for Claimant's injuries and for Claimant's permanent partial disability, as the only credible evidence was that the employee was injured at work on December 11, 2012, in that she was removed from her place  of employment at the time of the exposure and taken to the emergency room by medial personnel suffering from an allergic reaction and as a result of the exposure, Claimant has sustained permanent partial disability.

2.  The only credible evidence is that Claimant was injured while at work and (the ALJ) ignored that evidence in reaching his decision that Claimant's injuries and subsequent disability were not work related.

The Commission notes the claimant failed to state why her evidence was the only credible evidence or failed to identify what specific evidence the ALJ allegedly ignored.  The application did not state specifically why the ALJ 's decision is not properly supported. It was not enough for the applicant to  state that the she felt her evidence was more credible.  The general assertion that the decision was not supported by competent and sufficient evidence was "patently insufficient" to comply with the rule.

Judge Scott in a concurring opinion felt the lack of specificity was not prejudicial when the parties intended to brief any alleged errors.  The judge notes the irony that the Commission requests more specificity but in a new September 2, 2019 rule now advises parties to keep the application short (five pages or less).  Judge Scott noted the rule to require specificity flowed from a "presumed" legislative intent  to deter frivolous appeals by employers.