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