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.
