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.