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
Tuesday, February 25, 2020
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
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
Commission denies PTD to 78 year old for ankle contusion.
Judith Gustin v Macy's Retail Holdings
self-insured
Release Date: Feb. 21, 2020 (Accident date Nov 27, 2014)
Venue: Greene County
Plot Summary: The Commission in a 2-1 decision affirms a denial of SIF benefits for permanent total on the finding that claimant failed to show the primary injury resulted in partial disability based on experts Dr. Koprivica and Dr. Hicks that her ankle contusion did not produce any new objective permanent changes.
https://labor.mo.gov/sites/labor/files/decisions_wc/GustinJudith14-10249402-21-20.pdf
Inj. 14-102494
Cast:
Mahon, ALJ
Alberhasky
Burks
Mullins
Eldred
Koprivica
Hicks
Hughes
Memorable quotes
"She just decided to enjoy her children and grandchildren. In effect, she chose a well-deserved retirement after a most successful business career. That is NOT evidence of permanent total disability."
Comments:
The employer had paid about $3000 to treat claimant's ankle following a contusion and SIF asserts there is no "objective" disability and her arthritic findings are chronic. Claimant is 78 years old. Claimant had several prior settlements as the basis for pre-existing conditions.
The majority rejects the contention that 287.020.3 allows SIF benefits for aggravation or acceleration of the work injury. The majority found the ALJ's comments about claimant's desire to retire as extraneous.
The dissent opined: "Employee had immediate and permanent pain with documented swelling caused by a contusion that resulted in employee reducing her work hours by half. Employee's November 27, 2014, injury had a profound effect on her ability to work and perform her job duties, a fact the administrative law judge misunderstood. There has been steady and continual objective evidence of swelling resulting from an aggravation of arthritis that impacts employee's ability to stand and walk and has resulted in significant permanent disability."
self-insured
Release Date: Feb. 21, 2020 (Accident date Nov 27, 2014)
Venue: Greene County
Plot Summary: The Commission in a 2-1 decision affirms a denial of SIF benefits for permanent total on the finding that claimant failed to show the primary injury resulted in partial disability based on experts Dr. Koprivica and Dr. Hicks that her ankle contusion did not produce any new objective permanent changes.
https://labor.mo.gov/sites/labor/files/decisions_wc/GustinJudith14-10249402-21-20.pdf
Inj. 14-102494
Cast:
Mahon, ALJ
Alberhasky
Burks
Mullins
Eldred
Koprivica
Hicks
Hughes
Memorable quotes
"She just decided to enjoy her children and grandchildren. In effect, she chose a well-deserved retirement after a most successful business career. That is NOT evidence of permanent total disability."
Comments:
The employer had paid about $3000 to treat claimant's ankle following a contusion and SIF asserts there is no "objective" disability and her arthritic findings are chronic. Claimant is 78 years old. Claimant had several prior settlements as the basis for pre-existing conditions.
The majority rejects the contention that 287.020.3 allows SIF benefits for aggravation or acceleration of the work injury. The majority found the ALJ's comments about claimant's desire to retire as extraneous.
The dissent opined: "Employee had immediate and permanent pain with documented swelling caused by a contusion that resulted in employee reducing her work hours by half. Employee's November 27, 2014, injury had a profound effect on her ability to work and perform her job duties, a fact the administrative law judge misunderstood. There has been steady and continual objective evidence of swelling resulting from an aggravation of arthritis that impacts employee's ability to stand and walk and has resulted in significant permanent disability."
Thursday, February 20, 2020
Supreme Court denies enhanced benefit for meso without employer election of coverage
Vincent Hegger, dec. v Valley Farm Dairy Company
Release Date: Feb. 19, 2020 (handed down Feb. 18, 2020)
Venue: not identified
Plot Summary: Two adult children sought benefits for enhanced benefits under the January 2014 law for meso exposure when Hegger died in 2015 from toxic exposure related to asbestos exposure during employment that ended in 1998. The Supreme Court found the benefits were unavailable to the dependents under the 2014 law because there was no evidence the defunct employer had "elected" benefits.
https://www.courts.mo.gov/file.jsp?id=150493
court of appeals case
2019 MO APP. LEXIS 816 ED 106278
Cast
Powell, Hon.
Stewart
Archer
Comments: The only issue before the court was whether claimant was entitled to enhanced benefits in 287.200.4(3) which allowed an additional 212 weeks at 300% of the state average weekly wage.
Employers who elected enhanced liability are not subject to civil liability and those who do not elect do not have the protection of the exclusive remedy. Claimant sought benefits through comp rather than arguing a lack of election to pursue a civil claim and asserted the election of coverage during the employment through 1998 contemplated coverage. The court rejected the argument and found 287.200.4(3) required an affirmative act, and cannot make an election under new law in 2014 if the company in 2014 does not exist, distinguishing the scenario when the employer had ongoing operation after 2014 and elects coverage that would trigger liability for exposures prior to 2014.
Release Date: Feb. 19, 2020 (handed down Feb. 18, 2020)
Venue: not identified
Plot Summary: Two adult children sought benefits for enhanced benefits under the January 2014 law for meso exposure when Hegger died in 2015 from toxic exposure related to asbestos exposure during employment that ended in 1998. The Supreme Court found the benefits were unavailable to the dependents under the 2014 law because there was no evidence the defunct employer had "elected" benefits.
https://www.courts.mo.gov/file.jsp?id=150493
court of appeals case
2019 MO APP. LEXIS 816 ED 106278
Cast
Powell, Hon.
Stewart
Archer
Comments: The only issue before the court was whether claimant was entitled to enhanced benefits in 287.200.4(3) which allowed an additional 212 weeks at 300% of the state average weekly wage.
Employers who elected enhanced liability are not subject to civil liability and those who do not elect do not have the protection of the exclusive remedy. Claimant sought benefits through comp rather than arguing a lack of election to pursue a civil claim and asserted the election of coverage during the employment through 1998 contemplated coverage. The court rejected the argument and found 287.200.4(3) required an affirmative act, and cannot make an election under new law in 2014 if the company in 2014 does not exist, distinguishing the scenario when the employer had ongoing operation after 2014 and elects coverage that would trigger liability for exposures prior to 2014.
It was unclear if the parties had sought or received "regular" benefits under 287.200.4(1). The court takes no position if claimants would be entitled to "standard" benefits if the benefits had not been previously obtained.
Court denies benefits based on credibility findings
Kevin Parvin v Camcorp Environmental
Missouri Employers Mutual
Release Date: February 18, 2020 (Accident date September 2013)
Venue: Southern District (Div. 2) (Newton County)
Plot Summary: Court of Appeals affirms 2-1 denial of benefits based on credibility.
No. SD 36281 2020 Mo App. Lexis 194
https://www.courts.mo.gov/file.jsp?id=150513
https://labor.mo.gov/sites/labor/files/decisions_wc/ParvinKevin13-10233908-16-19.pdf
Cast:
Scott, Hon. (original award ALJ Fisher)
Alberhasky, atty
Sparlin, atty
Dr. Koprivica
Dr. Parmet
Comments: Claimant, 56, was a construction worker who alleged occupational disease to his arms, shoulders and back. The ALJ and a majority of Commission denied benefits based on adverse credibility findings concerning claimant and his expert, Dr. Koprivica.
The ALJ found inconsistencies in claimant's medical history, conflicting testimony about his activities at work. "In conclusion, the inconsistent history and substance abuse issues cause me to strongly question Mr. Parvin as a reliable historian".
The court found the appellant did not follow the analytic framework for challenges for alleged error under 287.495.1(4) which required:
1. identify a factual proposition necessary to sustain the Commission's result
2. marshal all evidence in the record supporting that factual preposition, subject to the commission's authorized factual and credibility determinations, explicit or implicit, and viewing the record objectively where there are no explicit or implicit findings
3. Demonstrate why the evidence from the second step lacks sufficient probative force on the issues, such that the Commission could not have reasonably believed the factual proposition set forth in step on.
The court questioned where denials are based on lack of evidentiary support require the same standard of review to be consistent with reviews in civil judgments against the parties with the burden of proof.
The court found it could not take claimant's alleged error "seriously" about the failure to call a witness (one of the owners) when the record showed claimant declined to call the witness.
The court found no confusion that the Commission misunderstood the nature of the claim as one of an accident when the record identified the issues as occupational disease.
The court further found the claimant "unabashedly" asked the court to reverse a denial because it regarded its expert as more credible.
Missouri Employers Mutual
Release Date: February 18, 2020 (Accident date September 2013)
Venue: Southern District (Div. 2) (Newton County)
Plot Summary: Court of Appeals affirms 2-1 denial of benefits based on credibility.
No. SD 36281 2020 Mo App. Lexis 194
https://www.courts.mo.gov/file.jsp?id=150513
https://labor.mo.gov/sites/labor/files/decisions_wc/ParvinKevin13-10233908-16-19.pdf
Cast:
Scott, Hon. (original award ALJ Fisher)
Alberhasky, atty
Sparlin, atty
Dr. Koprivica
Dr. Parmet
Comments: Claimant, 56, was a construction worker who alleged occupational disease to his arms, shoulders and back. The ALJ and a majority of Commission denied benefits based on adverse credibility findings concerning claimant and his expert, Dr. Koprivica.
The ALJ found inconsistencies in claimant's medical history, conflicting testimony about his activities at work. "In conclusion, the inconsistent history and substance abuse issues cause me to strongly question Mr. Parvin as a reliable historian".
The court found the appellant did not follow the analytic framework for challenges for alleged error under 287.495.1(4) which required:
1. identify a factual proposition necessary to sustain the Commission's result
2. marshal all evidence in the record supporting that factual preposition, subject to the commission's authorized factual and credibility determinations, explicit or implicit, and viewing the record objectively where there are no explicit or implicit findings
3. Demonstrate why the evidence from the second step lacks sufficient probative force on the issues, such that the Commission could not have reasonably believed the factual proposition set forth in step on.
The court questioned where denials are based on lack of evidentiary support require the same standard of review to be consistent with reviews in civil judgments against the parties with the burden of proof.
The court found it could not take claimant's alleged error "seriously" about the failure to call a witness (one of the owners) when the record showed claimant declined to call the witness.
The court found no confusion that the Commission misunderstood the nature of the claim as one of an accident when the record identified the issues as occupational disease.
The court further found the claimant "unabashedly" asked the court to reverse a denial because it regarded its expert as more credible.
Subscribe to:
Posts (Atom)