Commission rejects argument to "undo" settlement based on 'buyer's regret'

 Randall Clinkenbeard v Dept. of Corrections

Release Date:  Nov. 23, 2020   (Oct. 2014)

Venue:  Texas County

Plot Summary:  Claimant alleges injuries to his shoulder and elbow after pulling a hood and receives a PPD award against the employer.  The Commission reverses an award of PTD against the Fund for failure to meet the  requirements of 287.220.3. 

Employee did not file an appeal on the denial of future medical.  

The Commission noted the expert did not find a combo for a single qualifying pre-existing condition and relied upon a finding of a combination of  "all" qualifying and non-qualifying conditions.  The Commission noted the employee did not file an appeal and requested his motion to remand to the Commission to consider further evidence and rejected the 'buyer's regret' argument to undo the prior settlement  with the employer due to an unexpected change in the law.

Inj. No.  14-089634

Cast

Mahon, ALJ 

Spear, atty

Rhoades, atty 

Volarich

Eldred

Memorable quotes:

"had the Cosby decision been rendered prior to his hearing, he may have taken a different strategy in settling with the employer, and in presentation of his case. He goes so far as to suggest we should revisit the stipulations which the parties previously voluntarily adopted as binding, and to remand to revisit the liability of all parties. We reject that argument and in accordance with the law must give effect to the parties' previously adopted stipulations and voluntary agreements of settlement, in this case, with the objective of settling employer's obligations to employee, in all respects but the issue of future medical. Bock v. Broadway Ford Truck Sales Inc., 55 S.W. 3d 427, 436 (Mo. App. E.D. 2001; (See also Exhibit 30, the written stipulation and agreement). If we did not do so, any party, who later regretted the terms of its bargained for settlement, could reopen their case and prolong the dispute indefinitely."

Pre-surgery blood clots from knee injury renders claimant PTD

 Richard Joyner v Monsanto

Release Date:  Nov. 20, 2020  (Jan 2017)

Venue:  St. Louis County

Plot Summary:  Claimant twisted his knee while working in a 'water closet.'  The Commission affirmed an award of PTD against the employer alone despite findings of "considerable" pre-existing disability.  Claimant postponed a knee surgery to take a vacation and returned and 'could hardly get of the plane' and was diagnosed with blood clots, pulmonary embolism with respiratory failure. About 2 months after repair to his knee he ended up back in intensive care.    

Cast

Keaveny, ALJ

Gregory, atty

Kovacs, atty 

Volarich, 35% knee, 25% BAW 

Fissel 5% sedentary restriction

Gonzalez

Hughes

Comments

The ALJ notes "considerable" pre-existing disabilities due to a prior infection and prior back surgery and that claimant's knee injury (meniscus, PCL) would not normally take claimant out of work.  He finds the complication of DVT from pre-surgery immobilization and resultant functional limitations of fatigue and lack of endurance and sedentary restrictions for the 62-year old plumber rendered him unable to compete in the open market.  

Memorable Quotes (additional comments from concurrence)

"If there was more medical evidence supporting Mr. Hughes' view that employee could successfully participate in the open labor market under Drs. Fissell or Volarich's physical restrictions, I would have been much more inclined to rule differently, by concluding that employee was not permanently and totally disabled. However, that was not the case with this decision. There was no evidence from Drs. Fissell or Volarich indicating that employee would have no problem finding work in light duty or semi-skilled positions after his January 18, 2017 primary work injury, and his resulting deep vein thrombosis." 

Court finds 18 years of inactivity was a failure to prosecute

Hager v Treasurer of Mo.

Release Date:  Nov. 24, 2020  (Accident date Sept. 1997)

Venue:  Eastern

Plot Summary:  Court of appeals affirms a dismissal of a case for failure to prosecute after nearly 18 years when no steps were identified how claimant attempted to move his case forward.   Claimant's counsel sought to set aside the dismissal of the claim against the second injury fund and asserts he had hired an investigator to locate his missing client but did not identify any results. 

The commission found a hearing was not required in every case to set aside a motion to dismiss when the motion to set aside includes alleged facts, even if true, would still ail to support good cause to set aside the dismissal.  The court found good cause to dismiss when the claimant failed to keep in contact with the Division to update his address and to remain in contact with his attorney.

ED 108950

Cast:

Gardner, Hon. 

Gilkerson, atty

Toepke, atty 

Commission finds failure to prove back strain injury caused need for surgery

 William Beavers v St. Johns Mercy Hospital

Release Date:  Nov. 16, 2020  (D/A Dec. 2007) 

Venue:  St. Louis County

Plot Summary:  

The Commission 2-1 affirms a 12.5% award for a back strain and denies benefits related to a subsequent disputed surgery.

The ALJ notes the parties agreed claimant had a back injury handling a patient but disagreed on most other issues and the relationship of claimant's back surgery to the original accident.  The ALJ found claimant established he had a low back strain but failed to prove the accident caused or aggravated a prior disc condition to cause the need for disectomy noting the more persuasive testimony of a back surgeon and inconsistencies in claimant's testimony.  The ALJ denied compensation for medicla bills  of  $161,268 related to a disputed back surgery following claimant's release by Dr. Cantrell. A dissenting Commissioner would have found total based on last accident alone.  

07-12351911

Cast:

Ottenad, ALJ 

Edelman, atty

Archer, atty

Sandberg, atty

Poetz

Weimholt

Cantell

Coyle

England

Comments:

The ALJ allowed the employer to amend its answer to include a post injury misconduct defense to TTD on the date of the hearing, over objection, when the issue had been raised in previous court proceedings. The ALJ found claimant was disqualified from TTD due to post-injury misconduct related to the use of profane, abusive insulting or threatening language.  

The ALJ noted the PTD claim fails because it was predicated on finding claimant's surgery to be related. The ALJ awards 22.5 weeks against the Fund.  

The ALJ notes "unfortunate" exchanges between the attorneys during an evidentiary deposition  "where the attorneys simply traded barbs, argued and insulted each other" and found a judge would not "have tolerated" such conduct but allowed the "commentary and behavior of the attorneys" as part of the record.  

Commission rejects Fund total on failure to show aggravation

 Thomas Dubuc v OTG (Settled)

Release Date:  Nov. 16, 2020

Venue:  Western District,  15-087903

Plot Summary:  On remand, the Court of Appeals reversed a finding of PTD and ordered the Commission to apply 287.330.3 to the facts.  The Commission granted the parties the right to submit briefs but found the remand  to "apply the law to the facts" did not permit the petitioner to offer new evidence.  

Discussion:  The Commission now finds claimant's testimony about prior hernia repairs, without treating records, fails to satisfy the statutory requirement that a qualifying condition is "medically documented." The Division found claimant failed to show a genetic mutation (Factor V Lieden) is a qualifying condition which "aggravated or accelerated" the work condition.  It found "generic" language by the expert about aggravation failed in the burden of persuasion.  A majority added dicta ("not the basis of this award") to opine that employee over-relied on Second Injury Fund v Parker, WD 83030,  which is on appeal, for the proposition the statute allowed consideration of multiple conditions and contends the controlling rule is combination of the primary with a single prior qualifying condition.  The Commission previously concluded the two pre-existing conditions both represented 25% BAW PPD each. 

The dissent felt evidence supported "previously documented" conditions and demonstrated aggravation, noting the potential for surgical complication of DVT.  The dissent notes the majority's factual findings "defy common sense" and violates the "spirit of the law" to deny benefits to workers with "complex" medical histories.  The dissent would have allowed additional evidence due a change in law "mid-stream" but felt evidence in the record supported an award of total against the Fund.  

Commission reverses Fund total based on multifarious claim

Arthur Antilla v Dyno Nobel

Release Date:  Aug 4, 2020 (Accident Date Jan 3, 2014)

Venue:  Kansas City/Joplin

Plot Summary:  

The Commission reverses a PTD award of benefits based on failure to prove pre-existing qualifying conditions. 

Cast

Fisher

Pitts, Atty 

Mobeg, Atty

Bang, Atty

Paul

Eldred

Hughes

Comments:  Claimant, 68,  alleges occupational disease and accident arising on the same date and settled for the employer for neck disability apportioned between two claims for accident and occupational disease under a single injury number.   The ALJ accepted expert opinion that any disability was due to a "combo" effect.  The vocational expert identified the total as a last accident alone.  Claimant alleged he had symptoms leading up the accident from driving on rough roads but denies they impacted any capacity to work.  

The Commission found claimant's prior medical conditions did not qualify under 287.220.3. 

"We further note that we are not convinced by the evidence that the occupational disease as described by Dr. Paul was a preexisting condition shown to be at maximum medical improvement on the day of the primary Injury. An occupational disease does not become a compensable injury until the disease causes disability. Such disability would exist where it is shown to affect the employee's ability to perform ordinary tasks or his earning capacity. Garrone v. Treasurer of State, 157 S.W. 3d 237,242 (Mo.App. E.D. 2004). Employee's clear testimony was that he was not inhibited from doing his work or other activities prior to the January 3, 2014 traumatic injury to his neck and left arm. Employee's vocational rehabilitation expert also confirmed this. However, a finding on this issue is not necessary to our conclusion that Fund liability has not been established." 

Both parties had stipulated to compensable occupational disease and accident despite conflicting medical opinions whether claimant's findings in the spine were degenerative or traumatic from repetitive exposure. The Commission noted:  "we believe the judge was in error in finding that both injuries were properly plead under one injury claim "via an amended claim."

"Where no provision gives "permission" to give effect to an action, its absence requires us to conclude that the legislature did not intend for such expansive use of the claim filing process. While we understand the notion that administrative proceedings should not unduly burden the parties with meaningless procedural formalities, the circumstances here show good reason why the statute does not expressly allow multiple injury claims to be filed within one claim. The record is unclear and inconsistent on employee's theory on two points: (1) whether these are two distinct primary injuries both of which stem from work with this employer as the prevailing factor and (2) what is the claimed preexisting disability. Clarity in these respects is essential to determine Fund liability. The approach taken by the administrative judge created confusion as to the relationship between primary and preexisting disabilities, which is the pivotal point of analysis in Second Injury Fund claims.6 As the Fund notes in its brief, the May 2016 amended claim filed by employee suggests an additional mechanism of injury but does not suggest it is a preexisting disability for Fund liability. The approach taken by the administrative law judge to find two injuries in one claim and then convert one of those injuries to a preexisting condition further confusion and inserted uncertainty into the theories for defense by the opposing parties. In certain circumstances, this practice could potentially raise a question of adequate notice to the parties that may give rise to due process issues. Extending this practice to the extreme could result in an omnibus approach to claim filing, including all conceivable descriptions of injuries wrapped into one claim, such that five, ten, fifteen, or more loosely related injuries could be wrapped together as one claim. The danger of allowing such expansive pleading practice raises obvious concerns for the clear delineation of issues for the defending party, as well as for the reviewing tribunal." 

 

Court affirms summary judgment for defendant using statutory employment defense.

 Robby Sebacher v Midland Paper Company

Release date:  Oct 13, 2020

Venue:  Eastern District

Plot Summary:  Court of appeals affirms dismissal of negligence claim on defense that defendant Midland is a statutory employee.

ED 108615

Cast

Gardner, Hon.

Discussion:

Midland employee allegedly assault Plaintiff.  Plaintiff sued in negligence claim.  Midland runs a series of warehouses who contract out independent contractors to deliver Midland products.  In this case, the contractor was CRH Transportation.  Plaintiff was employed by CRH pursuant to Midland contract.  Midland handled supervision and training daily of drivers and required 40 hour minimum.  Plaintiff was assaulted by Midland employee and sued Midland for failure to train and supervise assailant.  

The issue was whether plaintiff was performing work within the usual course of Midland's business.  Plaintiff alleged the determination of the usual business is based on the specific location and in this case the usual business at that location did not include delivery because it never used its own employees at that location.  Plaintiff did not contest the statement in the motion that the defendant had multiple options of delivery including contacting with transportation companies.  

The court found the fact that deliveries were used by independent employees rather than its own employees at that location did not change the usual business at the warehouse.  It found picking up products from a distributor to deliver them for the distributor was the usual business.  

Commission affirms temporary award for neck fusion

 Edward Burns v Assoc., Elect Coop.

Release Date:  Oct 27, 2020 (D/A  11/29/2017)

Venue:  New Madrid County

Plot Summary:  The Commission affirmed a temporary award. Claimant slipped off a cart and jerked his left arm and neck. Claimant reported temporary relief after two injections but was told by the employer designated doctor he had no other plan of treatment for his symptoms  Claimant denied prior symptoms and he was told by Dr. Robson that he needed a fusion.  Electrodiagnostic studies were inconclusive for nerve entrapment. Claimant denied prior chiropractic care for the neck.  The Division excluded some supplemental exhibits under hearsay objection.  

17-09189210

Cast:

Tilley, ALJ

Taylor, Atty

Horton, Atty

Robson, Dr. 

Bernardi

Doll

Commission finds "new" injury to back to reverse denial of Fund award

 Brenda Dubose v Prairie Farms

Release Date:  10-20-2020  (March 9, 2017 accident date)

Venue:  St. Louis

Plot Summary:  Claimant alleges back injuries from pulling a stack of milk crates and seeks benefits against the second injury fund. She asserts she retired early due to work environment changes after new management provided fewer accommodations related to her chronic back pain.  Her expert assessed disability for prior back, knee, and wrists.  The ALJ found no evidence of a "new" trauma to the back, and denied fund liability. The Commission in a 2-1 decision reversed the denial and awarded 57.15 weeks of benefits against the Fund.  

Cast

ALJ Schaefer

Merlin, atty

Cunningham, atty 

Berkin

Dolan

Petkovich

Hughes 

Court finds last accident alone supported a total from back surgery despite profound pre-existing disabilities

 Roy Franklin v Mitchell Mill Systems

Release Date:  Oct 22, 2020  (April 2014)

Venue:  Joplin

Plot Summary:  Commission reverses a PTD award against the Fund and finds the employer liable for PTD after a back surgery "redo" based on the nature of restrictions after the  last surgery and found it unnecessary to consider whether .2 or .3 applied to assess Fund liability.  

14-2567810  

Cast:

Fischer, ALJ

Koprivica

Shakhan

Eldred

Comments:  The doctors did not dispute claimant developed injury by occupational disease to his back from repetitive activities associated with his job as a welder which was treated with a "re-do" of a prior microdiscectomy.  Claimant reports the surgery failed to alleviate his symptoms and he never returned to work.  The ALJ noted claimant was PTD due to a "combo" based on a "profound" degree of pre-existing disability including, among other things, surgery to the same disc level, shoulders, wrists, and knee. 

No party disputed on appeal that claimant was PTD.  

Court affirms denial of mental stress claim

 Steven Shipley v State of MO

Release Date:  Oct 27, 2020 

Venue:  Southern District

Plot Summary:  Maintenance supervisor at a state prison alleges  mental injuries ("nervous breakdown" ) from job duties but he fails to show his work was extraordinary or unusual or that a subsequent heart attack was related.

Inj. No.  SD 36643, 2020 MO APP LEXIS 1344 

Cast

Scott, J.

Moroni

Schmidtt

Comments:  The court noted claimant worked from 2001-2010 until he resigned.  He had a history of conflicts with peers, supervisors and vendors.   The court noted 14 witnesses.  The Commission affirmed the denial 2-1 without any opinion on the merits.  The court noted a failure in proof of extraordinary stress compared to same or similar employees under Mantia standard. There was no need for evidence to support a denial when the claimant failed to meet his burden of proof.  

ALJ awards limited PPD on finding that claimant's testimony is not credible

 Bobby Knight v Fedex Ground

Release Date:  Oct 21, 2020  (May 2015)

Venue:  St. Louis

Plot Summary:  The 2-1 Commission affirms limited PPD awards of 4% each for two separate back "strain" cases.  A dissenting commissioner, incredulously, would have awarded 35% for strains based on the rating of claimant's expert.

https://labor.mo.gov/sites/labor/files/decisions_wc/KnightBobby1503703110-21-20.pdf

Cast

Keaveny, ALJ

Cordes

Brown

Woiteshek

Mirkin

Cantrell

No statutory authority to allow a credit for a "no show" fee

 Jonathan Mirfashihi v Honeywell Federal Mfg.

Release Date:  Oct 7, 2020

Venue:  Jackson

Plot Summary:   Commission affirms 10% hand for a surgically treated trigger finger and rejected a causation defense of OA.  The court  rejected "credit" for missed doctor's appointment and no show fee of $1800  based on the lack of statutory authority. Claimant was out of the country and "at fault" to miss the appointment. 

17-04638310

Cast

Fowler, ALJ

Mirfashini, atty

Walsh, atty

Neighbor

Walker

Commission awards medical bills to rule out heart attack

 Thomas Runyan v Woodbridge Corporation

Release Date:  Nov. 6, 2020 (Accident date Feb 5, 2015)

Venue:  St. Charles 

Plot Summary:  A 65-year old retired employee with a prior heart attack  reports acute chest pain in an admitted accident when he felt a pop in his chest at work.  Claimant underwent a cardiac work-up and he was diagnosed with costochondritis.  The Commission in a 2-1 decision affirms an award of  12.5% BAW PPD  plus medical bills of $8788  to "rule out" a heart condition.  A dissent felt the PPD was excessive for an essentially untreated condition and the "cardiac" bills did not flow from any compensable medical condition.   

15-03686811

Cast

Landolt, ALJ

Beatty

Lemp

Volarich

Wayne

Commission affirms PTD for back fusion

 Gary Fuwell v Mo Dept. of Corrections

Release Date:  Aug 10, 2020 (Accident date Nov. 21, 2013)

Venue:  Texas County

Plot Summary:  The Commission affirms a PTD award against the employer for a back injury and single level fusion caused by a fall down some steps in a prison. 

https://labor.mo.gov/sites/labor/files/decisions_wc/FuwellGary13-08719808-10-20.pdf

Cast: 

Mahon, J

Spear, atty

Harris, atty

Rhoades, atty

Robson - 15%

Volarich

Eldred

Koprivica

Hughes

Boutwell

Comments:  Claimant, 62, received a temporary award including a back fusion and is awarded PTD in a final award.   Dr. Volarich concluded he was "last accident alone" despite prior neck surgery and prior back disability and "may" need treatment in the future due to hardware, and had to "rest" as needed.  Vocational opinion indicated claimant's use of narcotics and lack of employment for 3 years were toxic to his ability to compete for work.  Hughes felt he was unemployable due to "appearance" and "pace and performance" but not due to last accident alone.

ALJ Mahon found claimant was "compelling" in his testimony about the result of "violently" falling down some stairs, and followed Dr. Volarich's conclusion of "last accident alone" despite "significant" pre-existing disabilities which caused him to miss "a few weeks" each year.   She notes claimant takes daily trazadone and likely developed severe adjacent level stenosis from "stress."  

What's it Worth?  

PTD  

Commission faces off with court of appeals on narrow reading of SIF statute

 Jody Sneed v Walmart  (sif only)

Release date:  Aug 4, 2020 (Accident date Jan 2017)

Venue:  Greene County

Plot Summary:   A majority of the commission reverses an award of total benefits against the Second Injury Fund based on its own interpretation of 287.220, which it admits is at odds with the court of appeals.

https://labor.mo.gov/sites/labor/files/decisions_wc/SneedJody17-03549908-04-20.pdf

Cast

Elmer, ALJ, 

Mullins

Eldred

Comment:  

The majority concludes the SIF statute which refers to pre-existing "injury" includes only injury by accident and not injury by occupational disease, and the consideration of prior injuries from repetitive trauma were improper.  The majority felt it was reversible to consider pre-existing conditions that did not meet the 50 week threshold, even though the threshold had been satisfied by other qualifying condition.  The majority includes PTD must be established with "a" single prior condition and not multiple prior qualifying conditions.

Claimant's primary injury involved a 20% settlement and she sought benefits for prior hip replacements and prior degenerative disc disease.  

"We acknowledge that a majority of the Missouri Court of Appeals, Western District, recently filed an opinion, not yet final, that is at odds with our interpretation of § 287.220.3(2)(a)b. See Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan ParkerWD83030 (July 14, 2020). One member of the three judge division that decided the case challenged the majority's interpretation in a strongly written dissenting opinion. For the reasons stated above, we fundamentally disagree with the Western District majority's recent interpretation of§ 287.220.3(2)(a)b. We instead find that the express language of§ 287.220.3(2)(a)b requires that an employee prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test."

It is not clear why the majority would pivot on the issue that the court of appeals decision wasn't final as a basis to bypass the concept of stare decisis.

Appeal Dismissed for Failure to Identify Judicial Error

Shelly Dale v Washington University 

Release Date:  July 29, 2020  (December 2009)

Venue:  St. Louis  

Plot Summary:  Commission dismisses an appeal for failure to identify error of an award in which the ALJ denied benefits on a failure too prove causation based on admissible evidence. 

https://labor.mo.gov/sites/labor/files/decisions_wc/DaleShelly09-09930507-29-20.pdf

Cast

Boresi, ALJ

Brooks

Ware

Comments:   The ALJ denied claimant's attempts to offer a report that was "just found" or continue the case, noting further delay was prejudicial to the defense after more than 2 dozen prior court settings for a case that remained unresolved more than a decade after the accident 

"Last Accident alone" PTD for PTSD reversed

City of Jennings v Sabrina Williams

Release Date:  July 28, 2020  (Accident Date Sept. 2010)

Venue:  Eastern District (Div 4)

Plot Summary:  Claimant alleged permanent total disability after she was assaulted in a "bloody beating" by an inmate for several minutes  resulting in physical injuries  and new PTSD with  "worsening" of psychiatric conditions of anxiety and depression.


Cast
Ransom, ALJ
Moreland, M
McHugh, P
Hudson, J
Brockman
Bassett


Comments:  

Dr. Brockman testified the accident was the prevailing factor in new conditions and aggravations of prior medical conditions.   Dr. Bassett testified claimant had "new" and "old" disability of which 75% was new. The ALJ found claimant's "new" PTSD and new panic disorder alone supported liability against the employer and the accident was "so traumatic" that it supplanted her condition prior to the attack.   The Commission affirm a last accident alone PTD in a 2-1 decision.

The Court found the commission's decision was not supported by competent evidence that the  last accident was "so traumatic" to be a total and substituted the opinion of experts in a complex issue which found any total due to a combination.

The Court noted the Commission failed to complete its analysis to consider Fund liability when its conclusion of  "last accident alone" was not supported by sufficient competent evidence.  The "personal views" of the judge cannot provide sufficient basis to decide causation when there is expert testimony and the ALJ fails to account for the relevant medical testimony and the evidence is neither contradicted or impeached.  The ALJ found  "claimant was disabled due solely to he work injury" contrary to the undisputed testimony of both experts. The ALJ found the doctor to be credible although the doctor's opinion indicated a combination of psychiatric conditions new and old. .

The "horrific" nature of the accident did not permit the Commission to disregard the undisputed medical testimony without explanation nor base its finding on its personal opinion unsupported by sufficient evidence.

The employer argued the commission misapplied the law to rely upon a "she was working" defense to fund liability rather than an analysis of the condition constituted a hindrance or obstacle that could combine with a later work injury to cause a greater degree of disability than would have resulted without the pre-existing condition.  The court found it was error for the Commission not to have applied that standard, and its decision was  inconsistent with the Fund purpose "to ensure employers are not held solely responsible for a previously disabled employee's total permanent disability where a potion of that disability can be attributed to a pre-existing disability."

The court finds a PTD combo and remands for the Commission to determine the "proper amount" of the Fund's liability.   



 

Total affirmed for cuff repair

James Shields v Lowe's Home Center Inc

Release Date:  July 24, 2020 (Accident date Dec. 23, 2015)

Venue:  Cole County

Plot Summary:  Commission affirms a PTD award for right shoulder for 72 year old claimant following surgery for cuff repair with ongoing symptoms and onerous work restrictions from claimant's medical expert, Dr. Volarich.

https://labor.mo.gov/sites/labor/files/decisions_wc/ShieldsJames15-10134807-24-20.pdf


Cast:
Fisher, ALJ
McDuffey
Volarich - 65% total
Gonzelez
Galbraith

Comments

A dissent found evidence that claimant's PTD arose from the last accident alone was not credible given claimant's work capacity limited him to "greeter" work prior to the accident due to prior medical conditions due to a herniated disc and prior shrapnel injuries.

SIF total for prior radiculopathy

David King v Sheraton Clayton Plaza

Release Date:  July 23, 2020  (Accident date:  Aug. 2013)

Venue:  St. Louis

Plot Summary:  Commission affirms PTD claim against Fund based on a back on back.

https://labor.mo.gov/sites/labor/files/decisions_wc/KingDavid13-06331807-23-20.pdf

Cast 
Denigan, ALJ
Keefe, D
Volarich 
Hughes
Woiteshek
Gonzalez


Comments:  Dr. Volarich concluded claimant was PPD and then concluded he was PTD based on a back injury causing "increased radiculopathy" and also rated a prior back condition at 20% treated by a chiropractor.    The SIF offered no medical expert.   "Given Ms. Gonzalez testimony and findings, it is difficult to understand why Dr. Volarich changed his opinion. Her assessment contained serious flaws as stated above. Mr. Hughes rebutted much of Ms. Gonzalez's testimony. Nevertheless, the medical evidence suggests Claimant is permanently and totally disabled."  Claimant never had surgery apparently related to a risk from smoking and prior MRSA.

The ALJ denied the offer of claimant's deposition. "Convention in practice consists of simply identifying the pages from a properly indexed transcript and giving the opposition an opportunity to respond."

It denied the SIF objection to records as IME rather than primarily treating records even though the records are self-described by the doctor as an IME. 

The ALJ characterized claimant's testimony as unreliable and "much of which was unnecessary given the unchallenged treatment record and un-rebutted expert medical testimony."

Case Value

30% PPD - unoperated back 
Fund- PTD

Worsening after MMI does not support Fund Total

Michael Butler v Rock Hill Mechanical Corporation (Amerisure)

Release Date:  7-21-2020

Venue:  St. Louis, MO

Plot Summary:

Claimant, 54,  sought PTD benefits alternately against the employer or the Fund.  The ALJ found claimant to be a fund total based on  August 10, 2009 work injury to his left shoulder and low back, and his pre-existing disability to his right shoulder and left SI joint dysfunction.

The Commission reversed and found no PTD  at the time of MMI.  claimant could not return to his work as a pipefitter after his primary injury but that he was rendered totally disabled after MMI because of worsening of his condition from a lumbar and SI fusion  related to a pre-existing condition.

https://labor.mo.gov/sites/labor/files/decisions_wc/ButlerMichael09-08274307-21-20.pdf

Comments: 

The ALJ found claimant failed to show the accident caused the need the back surgery.   The employer relied upon expert opinion that claimant sustained a strain, that the surgery was not necessary because the work injury, and the surgery was not reasonable based in imaging and EMG studies which were "normal."  The Commission found Dr. Volarich not persuasive that the accident caused the need for surgery given the absence of new findings, documentation of prior symptoms, and the more credible opinion of a spine surgeon, Dr.  Coyle  The ALJ noted:  "Finally, Dr. Coyle concluded the low back treatment Claimant received after October 14, 2009 was related to his pre-existing SI joint dysfunction, not disc herniations. He noted the chiropractic treatment Claimant received up to and including August 10, 2009, and beyond. For these reasons, Claimant did not meet his burden to prove the medical treatment he received for his low back after October 14, 2009 was medically, causally related to his August 10, 2009 work accident."


Cast:
Carlisle, ALJ
Keefe, atty
Mauer
Volarich
Gonzalez
Taylor (2 level fusion)
Jackman (SI surgery)

Commission reverses award of Fund total based on prior nonqualifying disabilities

Everett Ptomey v Affiliated Foods Midwest 

Release date:  July 9, 2020  (Accident date:  July 7, 2016)

Venue:  Buchanan County

Plot Summary:   The Commission in a 2-1 decision reversed a PTD decision against the Fund based on 12.5% primary injury from a rear-end accident and priors of a 20% neck, 20% BAW (legs) and 5% back.

16-0530817
https://labor.mo.gov/sites/labor/files/decisions_wc/PtomeyEverett160530817-9-20.pdf


Cast
Asbridge, ALJ
Yarwood
Cole
Stuckmeyer
Cordray

Comments:    The Commission noted:

"The question presently before us, then, is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and a preexisting disability that satisfies the enumerated criteria under§ 287.220.3 (a)a., but rather from the combination of his primary injury and various claimed preexisting disabling conditions, including at least one preexisting permanent partial disability that does not equal a minimum of 50 weeks of compensation according to medical standards used in determining such  compensation." 

The Commission reversed and construes 287.220 to require proof of a combo of a primary and a "single" prior qualifying condition, and in this case the proof was that there was a combo of a primary and "two" prior qualifying conditions and one condition that did not qualify.  A dissent found the interpretation antithetical to the legislative purpose of the Fund. 

Commission affirms denial of Fund total based on nonqualifying priors

Charlie Hammons v George J. Shaw Construction Co.

Release Date:  July 13, 2020  (Accident Sept 2, 2016)

Venue:  Jackson County

Plot Summary:  The majority of the Commission affirms a denial of Fund benefits based on a settlement of 15% for a primary back injury and expert opinion which finds a fund total solely on a combination of qualifying and non-qualifying disabilities.

16-07472207
https://labor.mo.gov/sites/labor/files/decisions_wc/HammonsCharlie16-07472207-13-20.pdf

Cast
Fowler, ALJ
Stuckmeyer
Cordray
(no Fund expert identified)



Comments: 

Claimant, 54,  settled a primary case for 15% following a back surgery, with a history of prior back surgery and settlement at an adjacent level.  The claimant had a qualifying prior back condition but non-qualifying conditions to the knee, foot and ankle and COPD.  The ALJ notes;  "Both experts failed to assess disability based only off the combination of the qualified pre-existing lumbar spine injury and the subsequent lumbar spine injuries from his September 7, 2016 accident. As a result, Employee does not meet the burden of proof required to maintain Second Injury Fund liability..... To carry his burden of proof, the Employee needed the experts to view only his qualified pre-existing disability from his 1992 lumbar injuries with his disabilities from the last accident. It is apparent to this Court that the Employee is permanently totally disabled. However, the Second Injury Fund has no liability for Employee's alleged pe1manent total disability because he is not permanently and totally disabled as a result of qualified pre-existing injuries combined with the primary injury."

The majority of the Commission affirmed and noted:  "We are further of the opinion that the employee must prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test."

The dissent concluded the evidence supported  total disability benefits and considered the majority's "strict" interpretation was inconsistent with public policy and statutory changes to consider not just one but multiple prior conditions "the legislature added a sentence to the beginning of the new subparagraph two that refers to "disability due to injuries [emphasis added]" thereby expanding the definition of a disability within the meaning of the statute to include more than one preexisting condition.... If the legislature had intended the restriction on considering preexisting conditions to apply to subparagraphs (i), (ii), or (iv) as well as subparagraph (iii), it would have omitted the last part of subparagraph (iii) and subparagraph 287.220.3.(2)b would have included "combined only with the preexisting disability". Since the legislature chose to confine the restriction to subparagraph (iii), it did not intend the Commission to apply it more broadly."

The majority's position appears inconsistent with the subsequent court of appeals decision in the Jonathan Parker case, released the following day on July 14.

Court opens door for nonqualifying priors in total claim against Second Injury fund

Treasurer of the State of Mo As Custodian of the Second Injury  Fund v Jonathan Parker

Release date:  July 14, 2020

Venue:  WD (Division 2, 1 dissent)

Plot Summary:  The court of appeals affirms an award of total disability against the second injury fund for a 46-year old claimant and finds "below-threshold" prior conditions such as the knee and lumbar spine were admissible to support an award against the Fund.

WD83030

Cast:
Stuckmeyer
Drieling
Hess

Comments:

Claimant settled a claim against the employer for 25% of the shoulder that followed a "pop" in his arm and diagnosis of a partial tendon tear (March 2014 injury) and 30% for a cervical fusion which the Commission found compensable based on a history of "looking up on a repetitive basis."  Claimant's expert found a permanent total based on the last accident (neck) and prior accident (arm) and "significant" preexisting disabilities and bilateral knees.  The nature of the priors is a little unclear, although claimant apparently had an shot in his back once for back pain.

The parties agreed section 3 applied to assess Fund liability but the Fund argued error to consider the prior knees or back if they did not fall within any of the statutory criteria of (i) (ii) (ii) or (iv) but could consider other vocational factors such as education, age, weight, potential for retraining and physical limitations.  A majority concluded the employee has the burden in a fund claim  to show a qualifying pre-existing disability and a qualifying subsequent primary injury and  then the commission may consider "other disabilities" to determine if an employee is permanently and totally disabled as a result.  It found this interpretation  consistent with the purpose of the Fund.  It noted the Fund had no objection to consideration of non-medical criteria not expressly provided in the statute.

There was no evidence that the prior knee or back conditions met the statutory criteria of (i) (ii) (iii) or (iv).

The court noted the Fund's purpose is to allocate liability, which avoids "more liability" to employers for an employee's injuries.   

In an additional alleged error, the court also found that medical records accompanying a motion to submit a report are admissible in this case when the records were also reviewed and relied upon.

The decision will allow a broader range of potential claims against the Fund as long as there is 1 qualifying prior condition. 

Total award affirmed for prior asymptomatic disc disease

James Atchison v Mo. State Treasurer

Release date:  June 26, 2020

Venue:  Southern District  (Division 1)

Plot Summary:  The court affirms an award of PTD benefits against the fund on the basis of prior asymptomatic degenerative disc disease which impacted the capacity to repair an acute disc herniation.

1010 Mo. App. Lexis 818

Comments:  The court noted here is no requirement in 287.220  that any of the pre-existing "injuries"  are "symptomatic.". The commission found claimant had prior signs of degenerative disc and degenerative joint disease and the conditions were serious enough to be a hindrance or obstacle for future employment or re-employment.  The statute creates different calculations for partial or total awards against the Fund.

Lack of clear evidence of dependency loses Schoemehl claim

Ronald Lawrence, dec. v Treasurer of the State of MO

Release Date:  July 7, 2020

Venue:  WD 83123 (Div. 4)

Plot Summary  The court of appeals affirms a denial of substitution of parties to allow ongoing PTD benefits to  a surviving spouse  and two daughters after claimant died.

https://www.courts.mo.gov/file.jsp?id=161495

Cast:
David Whipple
Kimberly Fournier


Comments.  The proof of dependency requires evidence of  the identify of the party who is dependent at the time of the accident.  The 49 page award established that claimant had a wife and children at the time of the hearing but did not establish their dependency at the time of the accident or the identity of the dependents. 

The right to Schoemehl benefits is preserved only when dependency at the time of injury has been established in the final award and cannot be added later.

Claimant was awarded about $11,000 in his claim against the employer for a 2005 accident (the nature of the injury is not identified).  His claim for second injury fund life time benefits was denied for 10 years until the Court of Appeals found it compensable.  Claimant died about 3 years later after the award from unrelated causes.   The survivors sought to be substituted to continue to receive benefits under the former Schoemehl rule for life. 

A dissent concluded the record contained  sufficient evidence to establish dependency in the existing record applying liberal construction. 

The original case proceeded without objection even though claimant had apparently met the ALJ before on a social occasion. 

Court founds claimant at MMI before knee replacement surgery

Thomas Williams v Treasurer of State of MO

Release Date:  June 30, 2020

Venue:  Eastern District

Plot Summary:  The Court of Appeals reverses a finding, appealed by the employee, that MMI (and entitlement to PTD benefits began in 2016, after a knee replacement surgery, instead of an earlier earlier date in 2013, when he was released from care following a third knee surgery. Neither party disputed claimant was unemployable but the issue was when the permanent disability began. 

https://www.courts.mo.gov/file.jsp?id=161014

Cast:
Gaertner, Hon.
Christiansen
Kincade
Raines, atty
Cohen
Maylack
Nogalski
Lalk

Comments:  Claimant alleged a prior "ankle" combined with a cumulative trauma injury to the knee and back from working at Hussman.  The ALJ found claimant unemployable.  The vocational expert felt claimant's "funny" walk impaired his ability to maintain gainful employment.  The employer expert, Dr. Nogalski, felt claimant's condition was unrelated to his work. 

The court noted there was no evidence for the Commission to conclude the 2016 was the date of MMI.  The court does not explain any underlying reason why the claimant was trying to reclassify his period of disability as permanent rather than temporary. 

The ALJ (Teer) had found:

"The evidence supports a finding Claimant has permanent disability of 55% of the left knee and 10% of the body due to his occupational disease/repetitive stress injuries, which arose out of his work duties for Bussmann. He is also found to have pre-existing disability of 50% of the right ankle due to his congenital clubfoot and two additional right foot injuries occurring prior to the development of his occupational disease. Additionally, the evidence supports a finding Claimant is unable to secure and maintain employment in the open labor market, because of his need to constantly re-position himself, due to the symptoms in his low back, left knee and right foot. These symptoms cause his need to rest and recline during the day. Accordingly, the evidence shows Claimant's inability to work is the direct result of a combination of his primary injury and his pre-existing medical conditions and it is found the Second Injury Fund is liable for his permanent total disability"

https://labor.mo.gov/sites/labor/files/decisions_wc/WilliamsThomas02-04879910-03-19.pdf

No evidence needed to find against a party who had burden of proof.

Gina Beaman v Lowe's Home Centers, Inc.

Release Date:  June 23, 2020

Venue:  SD

Plot Summary:

The court notes:

"Gina Beaman lost a workers' compensation claim for failure to carry her burden of proof. She appeals, charging in each of six points that "there was not sufficient competent evidence" to support a decision against her. See § 287.495.1(4), RSMo. (2000)1 Only factual findings needed to make an award for the employee need evidentiary support. Annayeva v. SAB of TSD of City of St. Louis, 597 S.W.3d 196, 200 n.8 (Mo. banc 2020). This tracks a basic precept – no evidence is needed to find against the party who bore the burden of proof or to uphold that decision on appeal. See, e.g., Taylor v. Taylor, 585 S.W.3d 390, 395 & n.5 (Mo. App. S.D. 2019). Offering no cognizable legal basis for reversal, Beaman's § 287.495.1(4) complaints fail without further discussion or analysis. See Guinn v. Treasurer, No. SD36380, slip op. at 9 (Mo. App. S.D. May 4, 2020). We reject all points and affirm the denial of benefits." 



Cast:

Sheffield, Hon. 

Deconditioning caused by delay in treatment

Frank Starks v Import Specialists

Release Date:  June 23, 2020  (Accident date Aug 5 2015)

Venue:  Springfield

Plot Summary:  Commission affirms a PTD award with open medical for a hip injury from tripping over an electrical cord resulting in the need for a hip replacement.

https://labor.mo.gov/sites/labor/files/decisions_wc/StarksFrank15-063148.pdf

Cast:
Mahon, ALJ
Platter
McBrearty
Hicks
Charapata 50%, then 60%, then total
Lennard
Crockett - 40% hip

Comments: 

The ALJ found no fund liability based on a prior back surgery that required daily use of oxycodone a month before the hip accident  because claimant states he  experienced a "night and day" difference in his symptoms.  The ALJ later notes in her credibility assessment that claimant "downplayed" the extent the prior back symptoms impacted him.    She concludes no "realistic" employer would hire him because of his age, limited tolerance to sit, and narcotic use, and no high school diploma.

The ALJ found the employer delayed treatment, the delay caused deconditioning and endangered claimant's recovery in violation of 287.140.2 but found the employer did not waive its right to "select" a provider for future care but needed to designate a provider to furnish treatment consistent with recommendations of claimant's expert, a retired anesthesiologist. 

"Rather than immediately remove the selection of the health care provider, however, Employee has suggested in his proposed Award that Employer/Insurer be directed to select a health care provider who will provide future medical care consistent with the recommendations of Dr. Charapata to relieve the effects of the work injury. If Employer/Insurer then fails to provide such treatment, it will be deemed to have waived the right to select providers, and Employee shall thereafter be entitled to reimbursement of his future medical expenses. I find such solution appropriate, within the contemplation of the statute, and order the same. "


The ALJ denied a defense to shorten TTD based on a purported offer to return to work in a seated position based on the conclusion that claimant could sustain work in a seated position.

The ALJ makes several findings concerning claimant's frail appearance, at one time that he was under 100 pounds. 

Benefits from assault denied under first aggressor defense.

Nathan Ford v Assoc. Electrical Cooperative

Release Date:  6/4/2020  (Accident date June 7, 2015)

Venue:  Randolph County

Plot Summary:  The Commission affirms a denial of a temporary award of benefits on a failure to prove accident.  Claimant alleges a verbal altercation escalated and he was beaten and hit six times.  The alleged assailant (Rhoades) claims he acted in self defense and struck Ford after he was grabbed by the collar and pulled toward claimant.  The ALJ found Ford "started it" by laying hands first on the party who struck him.
https://labor.mo.gov/sites/labor/files/decisions_wc/FordNathan15-04709106-04-20.pdf

Cast:
Fisher, ALJ
Collins

Comments:  The lack of "live" testimony at the hearing is not clear and testimony was offered through civil depositions.  Claimant asserted  he should have been allowed to introduced additional evidence to rebut the first aggressor defense.  Claimant failed to show cause why he could not have testified live at the hearing (the proposed new testimony is not a "newly discovered" evidence).  It is unclear the disposition of any civil or criminal cases arising out of the same set of facts. 

Pro se claimant given another chance due to procedural lapse by Commission

Cindy Rowe v Southeast Missouri Residential Services

Release Date: May 26. 2020 (December 9, 2009)

Venue:  Southern District

Plot Summary:  Court of appeals reverses and remands Commission's decision to deny benefits and remands to rule on admission or denial of a 4th motion to consider additional evidence.
2020 MO App. Lexis 697  SD 36275

Cast
Lynch, Hon.
claimant, pro se
Schmidt, atty


Comments:  

The Court gives a pro se  one more chance in her denied claim based on procedural lapses by the Commission to properly send a complete record on appeal.  It chastised the commission for representing it sent "all" records on appeal which excluded 3 denied motions to introduce additional evidence and a 4th motion to offer additional evidence which was not ruled on.   

Claimant appears to allege conspiracy and fraud in the "process."

The claimant notes: "The disappearance and reappearance of the Appellant's fourth motion brings credibility to the Appellant's claim of corrupt fraudulent behavior she faced throughout the Worker's Compensation process"

The court notes:  "While Rowe's  last conclusion may be hyperbolic, her frustration is real and is shared by this Court."

The court notes appeals based on 287.495.1 requires service of "all" documents and papers and "all" documents filed with the Commission are "relevant" papers even though relevant is not defined. 

It notes:

....when the Commission fails to fulfill those duties and only includes in the legal file a subset of the documents and papers on file in the matter of its own choosing, it usurps and defeats the parties' and the reviewing court's ability to determine which documents filed with the Commission are necessary and applicable to the issues on appeal. The Commission's selective inclusion of documents in the legal file also frustrates the transparency and accountability purposes underlying  section 287.495.1, it creates the appearance that the Commission is concealing information possibly relevant to the review process, unfairly impacts and hinders the appellate review process and undermines the parties', the reviewing court's and the public's confidence that the Commission's challenged decision can  withstand a fair review based on the whole record."
. 
The commission initially certified it had filed a complete record which omitted the first three denied motions. The commission supplemented the file after it was ordered by to provide the missing documents.  The court of appeals reversed the denial and remanded the case when the Commission had failed to grant or deny claimant's fourth motion to submit additional evidence as required by the state regulations.


The opinion from the court of appeals omits additional information in the Commission case that the claim is 11 years old, claimant was represented by two previous attorneys who withdrew, and the case was denied when claimant did not offer medical evidence to prove her case.  2019 MO WCLR LEXIS 54.  

Insufficient postage dooms appeal

David Keeler v Associated Wholesale Grocers

Release Date:  May 26, 2020

Venue:  Southern District

Plot Summary:  Court affirms dismissal of appeal to Commission as untimely. 
https://www.courts.mo.gov/file.jsp?id=158173

Cast:  Bates, Hon.
Bullock
Newman
Burks

Comments:  Employer appeals the decision but didn't put enough postage on the appeal the first time and the second time mailed the appeal too late. It argues a paralegal mailed on April 9 the original application with insufficient postage and it was re-mailed on April 17 by private postage meter.  It was received on April 22.  The 20 day time period expired for filing an appeal on April 15.  The Commission found the "filing date" was April 17 and untimely. 

The Commission strictly construed the filing requirements and found no presumption of delivery exists when the original package contained insufficient postage.

The court notes a "new" firm represented the employer and the former firm withdrew after filing the notice.  The court rejected an argument that the appeal should be allowed based on lack of prejudice. 

Total disability affirmed for 38 year old with major impairment to dominant arm

Randy Lawrence v Noranada

Release Date:  May 20, 2020 (Accident April 8, 2014)

Venue:  New Madrid County

Plot Summary:  A majority of the Commission affirms a PTD against a 38 year old employee who injured his right arm and shoulder lifting a 30 pound piece of metal and claims he cannot use his dominant arm after surgery for a dislocation and for traumatic thoracic outlet syndrome. 

https://labor.mo.gov/sites/labor/files/decisions_wc/LawrenceRandy14-02685205-20-20.pdf

Cast:
Young, ALJ
Plufka
Remley
Volarich
Weimholt
Knight
Milne
Hagan
England

Comments
Claimant underwent surgery for a dislocation and Bankart's lesion.  He  treated extensively with injections and surgery with Dr. Hagan for thoracic outlet syndrome.  Dr. Volarich rated claimant with 60% disability for a poor outcome.  His vocational expert felt he was unemployable in the area where he lived based on restrictions from Dr. Volarich that he basically could not use his dominant right arm.  Claimant testified he could not use his arm and showed failed job searches.  The ALJ found the expert more credible than treating experts who felt claimant could perform medium level work and could still perform significant portions of his former job. 

The dissent sharply criticized the award of total benefits to a 38 year old who had residual function.  "In my long experience as a business owner, I have seen many people with less education, and people that are more disabled than employee that are able to successfully work every single day, despite their circumstances."

No fund recovery without prior fifty weeks of disability

Lettie Moore v Bi-State Development Agency

Release Date:  May 15, 2020 (Accident date Feb. 2, 2008)

Venue:  St. Louis City

Plot Summary:  The Commission affirms the denial of benefits against the Second Injury Fund because of the failure in the burden of persuasion that a prior neck injury represented a minimum 50 week threshold and otherwise quality for a recovery against the Fund.

https://labor.mo.gov/sites/labor/files/decisions_wc/MooreLettie08-072414051520.pdf

Cast
Carlisle, ALJ
Matheny, atty
Dresher, atty
Berkin
Morrow

Comments:  The ALJ found claimant's expert's opinion about pre-existing cervical disability was not persuasive in light of claimant's testimony about limited symptoms.  The ALJ noted the Fund was not liable for post accident worsening, and some of the the cervical treatment occurred 7 to 8 years after the primary hip injury.

The ALJ found four prior settlements which included the neck and other body parts did not satisfy the presumption that prior disability for the neck equated to 50 weeks.  The ALJ also found a failure to show synergy.

The ALJ sustained an objection to a admission of a prior rating report from Dr. Morrow contained within the Division's file as a "business record" and considered it inadmissible hearsay, even though another expert testified to its contents without objection.  The report was presumably offered to prove up prior disability and the expert was deceased and unavailable for cross-examination as he was deceased. The report was not offered following a 60 day motion, in which the Commission has found reports from deceased expert to be admissible.

The Commission declined to address whether the report was admissible or not and stated any error was not preserved regarding the material issue whether the report would have established elements of the case of synergy and 50 week minimum.   It did not address on the merits  whether the admission of the report from the late Dr. Morrow would be harmless error as its contents was described in testimony by Dr. Berkin  without objection.

Claimant's primary injury was to the hip resulting in a settlement of 44.5% PPD.

Commission misapplies post-reform Jan 2014 standard to December 2013 SIF claim

Lisa Coffer v Treasurer of the State of MO

Venue:  Southern District

Release date:  April 14, 2020

Plot summary:  The court of appeals reverses and remands a decision denying SIF benefits with erroneous applied a post-reform standard (section 3) rather than pre-reform standard (section 2) concerning a December 2013 occupational disease.  The Fund argued the 2014 rules applied because the claim was filed after the statutory change.

 Second injury fund claim filed after January 1, 2014 amendments are subject to pre-amendment rule under section 2 to assess PTD claim when the primary condition of carpal tunnel syndrome became disabling two weeks before the change in law  (December 13, 2013)  The Commission had reversed an award of benefits and found section 3 applied and found no evidence to support a claim of prior disabilities that meet the qualifying criteria under section 3.  The court follows Krysl v Treasurer of Missouri as Custodian of the Second Injury  Fund, 591 S.W.3d 13 (Mo. App. 2019) (claiming partial benefits)  In Krysl the court rejected the Fund's defense that the filing of the claim was dispositive.  The court found  the date of the injury was dispositive and not the nature of the nature.

SD  36471
https://www.courts.mo.gov/file/SD/Opinion_SD36471.pdf


Cast:  Rahmeyer, Hon.

Court affirms denial of SIF benefits for "working total"

Phillip Gunn v Treasurer of the State of MO

Release date:  May 4, 2020

Venue:  Southern District

Summary:  Court of Appeals affirms a denial of a Fund claim seeking total benefits on the basis of prior Parkinson's disease, based on a failure in the burden of persuasion to show evidence of a combination when the prior condition alone rendered claimant unemployable.
SD 36380  SD 36410
https://www.courts.mo.gov/file/SD/Opinion_SD36205.pdf

Cast:
Lynch, Hon.
Parmet

Comments:

The claimant left his job in 2006, and the year before he had worsening Parkinson's disease.  He settled a claim of occupational hearing loss and sought further compensation benefits from the Fund.  The Fund's defense relied upon evidence that claimant was unemployable because of Parkinson's alone and he maintained employment only because he was highly accommodated.   The Commission found claimant's complaints related to tinnitus could be related to Parkinson's in whole or in part, and the inability to continue working was due to Parkinson's alone.  The Commission denied benefits for failure to show a "combo."

The Court revisits two themes in several recent cases:  the distinction between the burden of production and burden of persuasion and the burden of proof how to raise a 287.495.1(4) error.

The employee has the burden of production and the burden of persuasion.  The court assumes claimant met the burden of production, but failed in its burden of persuasion to convince the fact-finder of his conclusion.  There is no presumptive validity in the burden of persuasion by satisfying only the burden of production.  The employee's brief "does not address or challenge the Commission's conclusion that he failed to carry that burden here." 

 The Court notes the Commission had made a credibility determination of the expert to support its conclusion that claimant was unemployable solely because of the pre-existing condition, despite the assertion by appellant  that the evidence had inconsistencies and was not persuasive.  The court notes that evidence in favor of the Fund the claimant "chose to completely ignore in his statement of facts."

The court notes a 287.495.1(4) challenge has a specific procedure and the challenger in this case must "marshal all record evidence favorable to the award" (which was not done in the statement of facts) and succeeds only when there is the absence of sufficient competent evidence, evidence contrary to to the award.  A credibility attack has "no place and serves no purpose" with that type of alleged error. 

The court notes claimant in his reply brief asserted the alleged error was 287.495.1(4) despite the absence of the exact legal reason in the initial brief as required by Rule 84.04(d)(2)(B)

The court notes decisions which discuss semantic problems to designate a "non-award" as an "award", and that it is illogical to apply a "competent and substantial evidence" standard of error to show evidence as a denial of benefits when the party seeking compensation fails to satisfy the burden of persuasion.  Factual findings are necessary only as a basis to award benefits, and are not necessary when there is a failure to asset a cognizable legal claim. 

SIF benefits awarded for neuropathy and prior alcoholism

Jon Roel v Molle Toyota  (SIF only)

Release Date:  May 7, 2020  (Accident date April 19, 2016)

Venue:  Kansas City, MO

Plot Summary:  The majority of the Commission affirms a permanent total award against the second injury fund.  Claimant alleges he hurt his back from repetitive trauma while unloading trucks for a missing employee. 

Inj. No. 16-0284375
https://labor.mo.gov/sites/labor/files/decisions_wc/RoehlJon16-0284375-7-20.pdf


Cast:

Hefner, ALJ
Coppage
Shine
Poppa
Drieling
Koprivica
Clymer


Comments:  Claimant, 51, sustained a back injury from repetitive lifting  with limited treatment and a settlement of 15%, He was diagnosed with a strain and some disc bulging which an expert concluded flowed from the accident.  He claims he requires psychotropic drugs and must lie down all the time.

The SIF denied claimant had a compensable injury based on a defense of medical records which identified a non-occupational cause and an expert, Dr. Koprivica, who stated he could not identify an etiology of a work injury due to history of  a non-occupational event.  Claimant contends his symptoms were already present when he apparently tripped over his dog's leash while walking the dog. 

 The ALJ, applying section 3, relies upon dictionary definitions of aggravation to make worse, make burdensome, make more troublesome or to cause, to develop or progress more quickly.  The expert indicated the prior neuropathy and alcoholism satisfied the requirement.  The ALJ commends claimant for current sobriety.  The ALJ found Dr. Koprivica's distinction between temporary and permanent aggravations to not be persuasive or supported by the language of the statute to support a denial of fund benefits. 

The dissent felt claimant failed to prove a compensable injury because of the contemporaneous history of tripping in his yard instead of an injury at work.  The dissent felt a "one-line" conclusion from claimant's expert to support causation was not persuasive because it lacked any explanation, and that claimant's assertion that he had to lie down unpredictably during the day due to his back and use psychotropic medication due to his back  rendered him totally disabled based on the last accident alone. 

The majority noted it did not consider on the merits whether there was error to award benefits on multiple disabilities  as a result of the Lexow case when the issue was not preserved. Michael Lexow v. Boeing Company and Treasurer of Missouri as Custodian of/he Second Injury Fund, lnj. No. 16-029680 ( March 20, 2020).







 

No SIF benefits for failure to prove prior heart condition was "enough" disability

John D'Angelo v Metropolitan St. Louis Sewer District and Treasurer of Second Injury Fund

Release Date:  May 7, 2020 (Accident date  March 1, 2015)

Venue:  St. Louis County

Plot Summary:   The Commission  in a 2-1 decision denies PTD benefits against the SIF on a failure to prove with admissible evidence the extent of pre-existing disability for aortic stenosis to reach the minimum threshold disability without reaching the second prong if it meets a qualifying condition Claimant sustained a cardiac "event" about 10 months after a work injury to the humerus.   

Inj.  No.  15-012160

Cast
Denigan
Kister
Sides
Ricci
Schuman
Shea
Hughes
Gonzalez
Knight

Comments

The ALJ found expert opinion about a prior cardiac conditions was excluded based on a Seven Day Rule Objection and due to "well-taken mischaracterization objection" (testimony that a finding post accident  concerning a cardiac condition was a finding prior to the accident).   The ALJ  concludes any cardiac disability was from post accident worsening but not caused by the accident and the need for cardiac surgery had nothing to do with the shoulder injury. The Commission  majority agreed that the cardiac condition became spontaneously worse after the accident independent of any orthopedic injury. 

Claimant's testimony about the magnitude of his cardiac problems after the accident appears largely undisputed including his testimony that around the time of his repair he "coded" multiple times and went into a coma.  It is undisputed the cardiac condition put claimant at increased risk for orthopedic repair, which never occurred.  The pivotal issue is whether the condition could be considered a disability for fund liability when the diagnosis of "severe stenosis" occurred 8 months after the primary injury.  Despite medical evidence of a aortic stenosis at the time of the accident or predating the accident, claimant's denial of associated symptoms prior to accident made any claim of his disability more challenging, The evidence further did not include an admissible  rating to define the degree of prior disability.   The dissent indicated claimant had a aortic stenosis prior the accident and associated symptoms are not necessary to show disability.

Claimant must establish enough disability to trigger fund benefits.   The SIF claim stumbled on a procedural issue as claimant's expert  supplement his opinion  in testimony with statements that he found 15% prior disability when he had rated the prior condition.  It is not clear why the opinion was not defined prior to the deposition. 

The Commission noted  287.220.3 applies (noting the ALJ identified the wrong section) and declined to reach the issue if the facts otherwise satisfied the .3 criteria (aggravation prong).  The Commission  adopts the ALJ's credibility finding that Dr. Schuman is more credible between the two experts and claimant  failed to show disability from his cardiac condition pre-dating the accident.  It  affirms the seven day rule objection when claimant's expert had not expressed an opinion defining the amount of prior disability before testifying.  [There is no reference about trying to reschedule the deposition to mitigate or cure the objection.]

A dissent felt prior cardiac disability could be inferred from the medical records based on the diminished size of his aortic valve prior to the primary accident and noted  medical opinion stated such a diminished size qualified claimant for replacement.   The problem is inferring the amount of prior disability to meet the minimum threshold.  Although claimant denied prior symptoms, it is unclear what symptoms he may have had leading to the pre-accident evaluation and testing.

By comparison,  the Commission in Atchison v Tyson Poultry, 2020 MO WCLR LEXIS 90, https://labor.mo.gov/sites/labor/files/decisions_wc/AtchisonJames07-08768710-16-19.pdf found a pre-existing spinal condition supported SIF liability on a new back case based on evidence the primary injury aggravated the prior condition and the effects of the pre-existing conditions rendered the primary condition inoperable.  It was noted in that case  "It is difficult to conceive of a more synergistic effect than one which renders the primary injury inoperable. Claimant has provided credible testimony that his pre-existing disability has become disabling as a result of the fall, which left him with chronic pain. It is also clear that the pre-existing, and now debilitating and painful pre-existing condition, is a hindrance to Claimant's re-employment." 


What's it worth?
benefits denied on SIF PTD claim (employer settled)

Worker cannot increase PPD settlement based on worsening symptoms

Charles Ritch v Professional Transportation Services

Release Date:  March 16, 2020  (Accident date June 11, 2014)


Plot Summary:  Claimant settled a PPD claim to his back and then sought the Commission to award a higher amount based on the argument of a change in condition.  The court of appeals affirmed a decision by the Commission 287.470 did not provide authority to increase a settlement.

https://www.courts.mo.gov/file.jsp?id=152063
SD36435

Cast:
Bates, Hon.

Comments:  Section 287.470 does not provide statutory authority to modify settlements approved under 287.390 even though the Commission retains authority to address future medical issues in cases such as this settlement in which future medical was left open.

Employer may not terminate TTD due to failure to follow "procedures"

Hicks v State of Mo

Release date:  March 17, 2020

venue:  Bonne Terre

Plot Summary:  The State of Mo refused to pay benefits on a defense of misconduct under 287.170 to a  corrections officer who injured his shoulder during training.  He asserted he was unable to work after a full-duty release and he was terminated for various policy violations including failure to report to work.  He underwent additional treatment after his termination and a total of three surgeries to his shoulder.  Claimant sought additional TTD benefits between his termination,and final MMI determination.

https://www.courts.mo.gov/file.jsp?id=151776
ED 108023

Comments:  The court noted that the legislature did not define misconduct to disqualify a worker from temporary  benefits, but specifically excluded absence from work as misconduct.  The court noted failure to follow proper procedure concerning absences supported a basis to terminate employment  but not a basis to suspend TTD benefits based on the statutory language.  Claimant was found totally, and not partially, disabled, so the case did not fall within the statutory exception to dispute benefits when available light duty was consistent with the medical restrictions.

Claimant fails to prove hazardous condition to floor

Maral Annayeva v.  SAB of the TSD of the City of St Louis

Release Date:   March 17 2020

Plot Summary:  The Supreme Court reverses an award of benefits for a claimant who alleges she fell on the employer's property and failed to carry her burden of persuasion that her accident arose out of and in the course of employment.  She testified initially that the floor was normal and later testified that  the surface of the floor had dirt, ice, dust and moisture which was a job risk that caused her to fall.  The court found she failed to prove a hazard that she was not equally exposed to away from work.

https://www.courts.mo.gov/file.jsp?id=152156
SC 98122

Cast:  
Hon. Fischer

Comments:   Claimant described a plethora of medical symptoms which included:  "pain in her legs, back, head, right thigh, right hip, neck, arms, right shoulder  and fingers.  Additionally, Annayeva complained of breathing problems, stomach  problems, liver problems, anxiety, depression, dizziness, nausea, face drooping, and cysts  on her fingers".

The court of appeals had awarded benefits, reversed a denial from the Commisison, and found claimant credible that she slipped on a foreign substance on an unclear floor and considered omissions in the medical history not dispositive whether a hazard existed.
https://www.courts.mo.gov/file/ED/Opinion_ED107558.pdf

The ALJ had found:   The ALJ found that Claimant had “failed to provide credible testimony to [the] Court” and found that her testimony regarding her “injuries  and their subsequent effects verged on the point of malingering.” Further, the ALJ found  Claimant’s experts’ opinions “specious” because they were based on Claimant’s “own subjective  description of her maladies.” The ALJ concluded that there was “little or no objective medical  finding to support any of Claimant’s anomalies.” 


Memorable quotes:

"Annayeva testified the condition of the linoleum floor on the day of the accident was "normal" but, after being repeatedly questioned by her attorney, she recanted this answer and testified the floor was covered by particles of dirt, ice, dust, and moisture."  

Commission reverses PTD award against Fund

Michael Lexow v Boeing Co.
self

Release Date:  March 20, 2020  (accident date April 13, 2016)

Venue:  St. Louis

Plot Summary:  ALJ awards PTD benefits for prior occupational and non-occupational injuries on the finding that the unrebutted expert showed the condition significantly aggravates or accelerates the subsequent work related injury.  Claimant settled his prior claim of left carpal tunnel (recurrent) with the employer.  The Commission concluded that 287.220.3(a) requires no consideration of conditions which do not satisfy the 50 week criteria.

Inj.  No.  16-029680

Cast
Hart, ALJ
Gregory, atty
Campbell
Volarich
Gonzales

Comments:  The Commission noted both Dr. Volarich and Ms Gonzales factored in each of the enumerated prior conditions.  The Commission concluded that an expert or fact finder must delineate which of the multiple claimed disabilities contributed to cause the PTD. "We conclude it is necessary to identify, with specificity, which of an employee's identified preexisting disabling conditions are claimed to combine with the primary injury to render the employee permanently and totally disabled."  The Commission found he argument "unavailing" that expert opinion of synergy shows an aggravation because it erroneously included  all of the pre-existing conditions in a claim against the Fund.

A dissent concludes the majority interpretation of the new SIF statute is "devoid of context" and ignores statutory purpose of the fund.  It over-applied strict construction to exclude other pre-existing disability which did not meet the criteria.  It found legislative intent to limit SIF liability to promote solvency did not intend to shift liability to the employer as a default for pre-existing conditions which did not satisfy the new criteria.

Fund total awarded for prior psychiatric

Mary Hazeltine v General Motors

Release Date:  March 5, 2020

Plot Summary:  On remand, the Commission reverses its denial of benefits and awards PTD against the second injury fund on the basis of prior psychiatric conditions.

https://labor.mo.gov/sites/labor/files/decisions_wc/HazeltineMary12-04360803-05-20.pdf

Comments:

The ALJ found claimant did not produce credible or competent evidence of a prior psychiatric disability as a basis to award Fund benefits to show her condition was disabling.

The court of appeals, ED 107630, found the 2-1 denial by the Commission  misplaced the focus on how prior psychiatric conditions impacted her ability to work and not on the potential it could combine with a future work injury.  It noted the Commission never concluded it disbelieved claimant's testimony.

Commission awards temporary benefits using a "last straw" analysis.

Georgetta Hull v Valitas Health Services

Release Date:  March 6, 2020 (Accident date July 2, 2018)

Venue:  Columbia:

Plot Summary:  Claimant, a 69 year old intake officer, claims she hurt her shoulder in a cafeteria when a corrections officer who was yelling (or "talking loudly") jerked a door she was holding and
aggravated a prior tendon tear.

https://labor.mo.gov/sites/labor/files/decisions_wc/HullGeorgetta18-05021803-06-20.pdf

Cast:
Schaefer, ALJ
Tarbox


Memorable Quotes:

" the fact that Claimant received prior treatment and had prior complaints regarding her shoulder is not controlling …. his injury was "the straw that broke the camel's back", and, thus, the prevailing factor ln the injury to Claimant's right shoulder..."

Commission affirms award for a "serious" diagnosis after sitting in a broken chair

Benjamin Branch v MERS Goodwill Industries
Sentry Casualty

Release Date:  March 6, 2020  (Accident date:  Nov. 13, 2017)

Venue:  St. Louis

Plot Summary:  Claimant alleges while sitting in a chair his chair broke resulting in injuries to his back.  He had some physical therapy and recommendation for an injection.  The majority of the Commission affirmed an award of 20%, before applying a credit for a prior comp settlement.  The dissent conclude the ALJ's findings of radiculopathy as a basis of the award was not supported by the medical findings.  The ALJ notes no radicular findings were documented at the time of Dr. Volarich's exam.
https://labor.mo.gov/sites/labor/files/decisions_wc/BranchBenjamin17-09076903-06-20.pdf


Cast
Denigan, ALJ
Sievers
Volarich - 25%
Gornet 5%

Comments
The ALJ notes recommendations for "aggressive" physical therapy for claimant's "serious" diagnosis
and conclusions that claimant has a back "syndrome" and "irreversible aggravation" of degenerative disc disease.


What's it worth?

20% BAW annular tear and "active" disc pathology

Court clarifies application of 287.220.3 for Fund liability

Thomas Dubuc v Treasurer of the State of Mo.

Release date:  March 3, 2020  (Accident date  Oct 2015)

Venue:  WD

Plot Summary  Court reverse and remands PTD award against Fund by erroneously relying on 287.220.2 instead of 287.220.3

WD 82809
https://www.courts.mo.gov/file/WD/Opinion_WD82809.pdf

Cast:
Martin, Hon.
Mullins
Strausser (voc)
Uhrig, atty
Schiff, atty
Korte, MATA, amicus curia

Comments:  Claimant fell off a ladder and sustained multiple orthopedic injuries to his wrist, back and ribs.   The experts indicated claimant's last accident alone rendered him unable to work, despite various pre-existing conditions.  He settled the claim in 2017 against the employer for $50,000.

Claimant testified his claim against the second injury fund involved four pre-existing conditions spanning from 1983 to 2010 including two prior accidents when he fell off a wall.  The  ALJ denied the fund claim based on evidence that the last accident alone rendered claimant a total.  The Commission reversed and awarded benefits but did not indicate which subsection it relief upon.  The court finds it uncontested it relied upon 287.220.2.

The Fund argued that because the work injury occurred after Jan 1, 2014, then section 287.220.3 applied based on Cosby v Treasurer of State of Mo, 579 S.W.3d 202 (Mo. banc 2019).  The employee argued the phrase "previous disability" applied to pre-accident conditions, and an accident after 2014 did not trigger section 287.220.3  The employee further argued that Cosby applied only to partial, and not total claims.

The court found no distinction in Cosby to apply the statute differently in permanent total and permanent partial.  The court noted Cosby rejected the employee's argument, which had prevailed in Gattenby, 516 SW.3d 859 (Mo. App. 2017).  "Cosby held that section 287.220.2 must be interpreted to apply to all cases of permanent disability in which all injuries, including the subsequent compensable injury occurred prior to January 1, 2014 and section 287.220.3 applies to all permanent and total disability or permanent partial disability claims after the fund in which any injury arising out of and in the course of employment, including the subsequent compensable injure, occurred after January 1, 2014."

The court found section 3 was controlling as the 2015 accident occurred after the 2014 changes.

 

Commission reduces PPD rate to statutory minimum

Haynes Williams v Hills Dodge
Employers Preferred Ins. Co.

Release Date:  Feb 21, 2020  (Accident date: April 22, 2015)

Venue:  Butler County

Plot Summary:  Claimant alleges injuries to his face, head, low back and arm when he lost control of his vehicle and crashed into a concrete embankment.  The Commission found employment and disability but reduced the rate of compensation to the statutory minimum from $150 to $40 a week.

https://labor.mo.gov/sites/labor/files/decisions_wc/HaynesWilliam15-0400342-21-20.pdf

Cast:
Kasten, ALJ
Moroni
Kornblum
LaBarge
Cohen
Cantrell

Comments:

The ALJ found a failure of proof that claimant's accident arose from an idiopathic syncopal spell as a result of  his a-fib condition

Regarding rate, the Commission reduced the PPD rate to the minimum. .

"Because the Commission cannot fairly or justly determine employee's average weekly wage based on the formulas provided in the provisions of Section 287.250.1-.3, RSMo, it is the opinion of the Commission based on what we so deem as exceptional facts that employee should receive the statutory minimum for weekly compensation of $40.00. "

 The ALJ determined:  "Claimant testified that he could have worked every day, but the evidence was that he had only driven similar jobs a few times. I find that the minimum wage rate of$40.00 for temporary total disability, in accordance with Section 287.170.1 (5), is appropriate. I find Claimant's average weekly wage for purposes of calculating a permanent partial disability rate is $225.00 ($45.00 per day x 5 days a week= $225.00) producing a permanent partial disability rate of$150.00."

What's it worth

15% BAW L3 compression fracture,
17.5% BAW concussion, orbital fx and nasal fx

Commission affirms denial on bizarre 'steam caused my stroke' claim

Cassaundra Hayes v Sweetie Pie's Upper Crust
Market Ins. Company

Release date:  Feb. 21, 2020  (Accident date May 31, 2017)

Venue:  St. Louis City

Plot Summary:  The Commission affirms a denial of a pro se case based on claimant's  failure to prove accident that exposure to steam in a kitchen from "corrosion"   caused injury to her throat, her voice and precipitated a stroke.

https://labor.mo.gov/sites/labor/files/decisions_wc/HayesCassaundra17-06179302-21-20.pdf
Inj.  17-061793

Cast:
Carlisle, ALJ
Long, atty

Memorable quotes

Employee alleges the administrative law judge did not understand her case and that employer wants her to be paid workers' compensation benefits.

Employee alleged that since May of 2017 she has been having speech problems, loss of feeling on her left side, difficulty holding a cup with her left (dominant) hand, and slurred speech. Employee claims that she "didn't have that problem before that happened to me on the job." Employee testified she sought treatment for pain management that led to getting a cane and ultimately a walker. When the administrative law judge inquired whether employee had either a cane or walker with her, employee responded that she had left both assistive devices in her car because she was "running late."''


Comments:    The ALJ found claimant did not establish an accident from a traumatic event or unusual strain occurred in a single shift, she lacked medial evidence to support causation and she lacked credibility.  Most of her proposed exhibits were excluded.

The Commission still allowed review on the merits of the appeal although claimant failed to comply with  8 CSR 20-3.030(3)(A) and failed to show cause to submit additional evidence on appeal