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
