Commission affirms PTD for back fusion

 Gary Fuwell v Mo Dept. of Corrections

Release Date:  Aug 10, 2020 (Accident date Nov. 21, 2013)

Venue:  Texas County

Plot Summary:  The Commission affirms a PTD award against the employer for a back injury and single level fusion caused by a fall down some steps in a prison. 

https://labor.mo.gov/sites/labor/files/decisions_wc/FuwellGary13-08719808-10-20.pdf

Cast: 

Mahon, J

Spear, atty

Harris, atty

Rhoades, atty

Robson - 15%

Volarich

Eldred

Koprivica

Hughes

Boutwell

Comments:  Claimant, 62, received a temporary award including a back fusion and is awarded PTD in a final award.   Dr. Volarich concluded he was "last accident alone" despite prior neck surgery and prior back disability and "may" need treatment in the future due to hardware, and had to "rest" as needed.  Vocational opinion indicated claimant's use of narcotics and lack of employment for 3 years were toxic to his ability to compete for work.  Hughes felt he was unemployable due to "appearance" and "pace and performance" but not due to last accident alone.

ALJ Mahon found claimant was "compelling" in his testimony about the result of "violently" falling down some stairs, and followed Dr. Volarich's conclusion of "last accident alone" despite "significant" pre-existing disabilities which caused him to miss "a few weeks" each year.   She notes claimant takes daily trazadone and likely developed severe adjacent level stenosis from "stress."  

What's it Worth?  

PTD  

Commission faces off with court of appeals on narrow reading of SIF statute

 Jody Sneed v Walmart  (sif only)

Release date:  Aug 4, 2020 (Accident date Jan 2017)

Venue:  Greene County

Plot Summary:   A majority of the commission reverses an award of total benefits against the Second Injury Fund based on its own interpretation of 287.220, which it admits is at odds with the court of appeals.

https://labor.mo.gov/sites/labor/files/decisions_wc/SneedJody17-03549908-04-20.pdf

Cast

Elmer, ALJ, 

Mullins

Eldred

Comment:  

The majority concludes the SIF statute which refers to pre-existing "injury" includes only injury by accident and not injury by occupational disease, and the consideration of prior injuries from repetitive trauma were improper.  The majority felt it was reversible to consider pre-existing conditions that did not meet the 50 week threshold, even though the threshold had been satisfied by other qualifying condition.  The majority includes PTD must be established with "a" single prior condition and not multiple prior qualifying conditions.

Claimant's primary injury involved a 20% settlement and she sought benefits for prior hip replacements and prior degenerative disc disease.  

"We acknowledge that a majority of the Missouri Court of Appeals, Western District, recently filed an opinion, not yet final, that is at odds with our interpretation of § 287.220.3(2)(a)b. See Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan ParkerWD83030 (July 14, 2020). One member of the three judge division that decided the case challenged the majority's interpretation in a strongly written dissenting opinion. For the reasons stated above, we fundamentally disagree with the Western District majority's recent interpretation of§ 287.220.3(2)(a)b. We instead find that the express language of§ 287.220.3(2)(a)b requires that an employee 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."

It is not clear why the majority would pivot on the issue that the court of appeals decision wasn't final as a basis to bypass the concept of stare decisis.