SIF Total denied based on nonqualifying priors

 Gregory Phelps v Gideon 37 School District and Treasurer of MO

Release Date:  Jan 25, 2021 (April 14, 2016)

Venue:  New Madrid County

Plot Summary:  Claimant injured a left shoulder while performing a repair of a bus and lost control of a ratchet.  Claimant, 67, settled with employer and sought total benefits against the fund.  His expert found him a total based on prior neck, back, respiratory combined with the new shoulder condition. The ALJ found prior conditions were not qualifying or qualifying and not of sufficient threshold disability.  The Commission affirmed the denial 2-1 based on a difference of opinion whether claimant sustained his burden of proof and how to apply the law.  

Cast

Young, ALJ 

Edwards atty

Williams, atty

Mall

Volarich

Shea

Court rejects constitutional challenge to 1 year deadline for medical fee dispute

 Chesterfield Spine Center v Best Buy Company, XL Ins. America

Date of Release:  Jan 12, 2021 (April 2013 accident)

Venue:  Western District

Plot Summary:  Court affirms a  finding that medical provider's fee dispute was time barred and finds multiple constitutional challenges to the medical fee dispute statute and state rule  without merit in a 7-points of appeal.

Employer authorized services but cut the bill about $75,000 for orthopedic after a bill review from Fairpay.  The ALJ found the dispute was time barred  when partial payment and notice was provided by June 2016 and an application was filed in August 2017.  

Section 287.140 has a 1 year statute after first notice of the dispute. The Court found there was notice provided of the dispute.  The court rejects the constitutional argument by the colorable assertion that the time for filing disputes is governed by the date of accident.  In this case the accident was 2013, the effective date of the statute was January 2014, and the medical bills in question occurred in 2015 and there was no retrospective application of the law between the provider and the carrier.  The court rejected other constitutional challenges.  

WD 83757

Commission awards penalty for post-injury misconduct.

 Anita Paxton v Little Sisters of the Poor

Release Date:  1-5-2021

Venue:  St. Louis City

Plot Summary:  The claimant was a registered nurse who fell on ice in a parking lot and hurt her ankle and then fell again and hurt her elbow.  She was terminated while on light duty restrictions.  Claimant had been disciplined for issues related to her job duties related to the secure control of and misdistribution of medication. The doctors further disputed whether all of claimant's medical conditions flowed from the accident.  

The Commission reverses a denial of the misconduct defense and finds no requirement the misconduct must flow from willful conduct.  

Cast

Carlisle

Hennessey

Amsler

Volarich - 40% ankle

Krause  5% fracture 

Notes:

The ALJ found Dr. Volarich more persuasive that the accident caused both a fracture and peroneal nerve injury. the ALJ awarded 25% for the fracture and 7.5% of the elbow.  The ALJ found the employer failed to show misconduct to disqualify claimant from temporary benefits.  The ALJ noted the term misconduct is not defined and that examples of misconduct to disqualify someone from unemployment benefits is not dispositive.  The ALJ found the employer's witnesses were "less than credible" and notes the absence of harm or intent from any alleged accident.

The Commission modified the award and found the claimant's admitted conduct to be irresponsible, dangerous and unlawful and the ALJ improperly added a requirement of "intentional" misconduct to trigger the penalty provision.  As such,  the Commission noted the award of $12,605.85 was erroneous.

A dissent would not have supported an order to repay the benefits and would have not awarded a penalty without proof of an intentional act or proof that the misconduct itself must have some causal relationship to the injury.  

Judge orders benefits and rejects arthritis causation defense

 Carol Caldwell v Unilever USA, Inc.   

Release Date:  Jan 5, 2021  (Accident date Aug 20 2017)

Venue:  Scott County

Plot Summary:  Commission affirms temporary award for left finger injury  in which the employer paid no benefits and disputed accident and causation.

Inj. No.  17-070606

Cast

Byrne, ALJ

Heckemeyer

Vanderbeek

Schafly

Kutnik

Discussion: Claimant reports her finger became "stuck" at work.  She was diagnosed with a partial tear of the sagittal band and told by another doctor she had arthritis, The ALJ found claimant claimant's work activities caused an "accident," and her medical condition required further treatment. 

Choking driver eating snack awarded benefits in third "bite" at the case.

 Gary Boothe Jr. v Dish Network  

Release Date:  Dec. 29, 2020    (Accident July 23, 2017)

Venue:  Southern District

Plot Summary:  A driver in a company truck loses control of his truck after he chokes on a breakfast sandwich in violation of a company rule not to eat while driving.    The Court reverses a denial of benefits on a failure of proof that the accident arose out of and in the course of employment and finds the driving to be an identifiable job related risk for someone employed to make service calls and risk of accidents on the road to be the hazard which caused the injuries and not the hazard of choking on food. 

Claimant had left en route from his home to a job and stopped 6 miles from his home to pick up a sandwich and some smokes, blacked out, crashed, and hurt his neck and back.  The employer had a rule to avoid eating while driving to reduce the risk of distraction. 

The ALJ  (Mahon)  awarded benefits subject to a 30% safety penalty deduction.  The Commission, in a 2-1 decision, reversed, and found claimant failed to identify a risk source to explain his cervical-thoracic, injury, lumbar strain, concussion, right flank and chest contusions.  The Court found no penalty and found the event to be compensable. 

The issue on appeal is confined to the application of subsection b of 287.020.3(2)  and found the "real" risk was the road conditions and not claimant eating.  The activity that caused the injury was driving and crashing the van and while choking caused the accident the van accident caused the injuries.  The coughing did not cause the injury -- the physical violence to the body structure.  Coughing was not an unexpected traumatic event.  There was no evidence that claimant when he was not working maintained the same type of travel "schedule."     

The court also makes the factual finding that claimant was on a "strict" timeline.  It is not clear how this represents any occupational risk when claimant was on the "first" call of the day.  There were no facts that claimant was compelled to eat while driving for personal comfort to meet a work-related schedule.  

The court further found a basis for a safety penalty applies only if the accident was caused by the failure to follow the rules.  In this instance, the violation of the rule not to eat in the car was not the cause of the accident because the cause of the accident was not choking but crashing into a pillar, according to the majority.  It is difficult to distinguish the argument as anything other than positional risk when there was no evidence about increased risks of  the vehicle, or conditions of the road, which caused the accident, but for the fact at that location claimant passed out by doing something he was told not to do.  

A concurring opinion stated it would reach a different conclusion if claimant chocked to death or had injuries from the choking itself.  

A dissent found a failure of proof of a work-related hazard.  

The Commission reports the amount in dispute was about $89,000 in benefits, including more than a year of claimed temporary disability benefits. BootheGary17-05399610-17-19.pdf (mo.gov)

Cast:

Mahon, ALJ 

 Platter, atty

Allmayer, atty