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.
Thursday, May 28, 2020
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.
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.
Wednesday, May 20, 2020
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."
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."
Friday, May 15, 2020
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.
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.
Friday, May 8, 2020
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.
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.
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).
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).
Thursday, May 7, 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)
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)
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