Failure in production of evidence of idiopathic defense that but for obesity claimant would not have had fatal heat stroke.

Halsey v Townsend Tree Service Co.

Release date:  April 20, 2021  (Accident date July 2016)

Venue: 2021 Mo. App. Lexis 469 SD 36658

Summary:  Court affirms finding that claimant passed out at work on a hot day in Poplar Bluff while collection "caution" signs.  He died the following day from hypothermia.

The employer argued that claimant's death was compensable, and it was not precluded by claimant's idiopathic condition (obesity, 300 pounds).  The surviving parents argued there was no remedy in comp and could proceed in a wrongful death claim.  

The ALJ found the accident compensable and the idiopathic obesity defense did not apply.  The Commission found that obesity may be a contributing factor, but there was no medical opinion that the injury was entirely idiopathic. 

The court found there was expert opinion that exposure on one day was the prevailing factor, despite equivocal testimony that exposure on other days may also contributed to the heat stroke.  The expert considered the appeal was "doomed" because it did not acknowledge favorable evidence from lay witnesses of the heat exposure on the last day. 

The court noted the parents failed in their burden of production that  obesity causes the injury, not that it was a factor or a contributing cause.  An idiopathic cause cannot be a defense unless it can satisfy the "but for" causation test and would not have occurred but for the obesity.  The court declines to address whether 287.020.3(3) requires any closer causal connection between an idiopathic condition and the alleged resulting injury.     

A federal court dismissed a wrongful death suit and found whether a compensable accident occurred must be decided by the commission.  It noted a compensable injury did not occur according to expert opinions and felt that obesity precluded compensability.  

Court adopts new rules for SIF cases

 Treasurer of the State of Mo as Custodian of the Second Injury Fund

v.  Jonathan Parker

Release date:  April 20, 2021  (Accident date  June 2014)  

Summary:  The Fund appeals an award of PTD benefits and contends benefits were not supported by section 2 or section 3.  It further objected to admission of records attached to a report, which the judge had allowed into evidence and over ruled the objection.

The court found the 2013 changes requires qualifying conditions to be medically documented, by equal to 50 weeks of permanent disability and meet one of the qualifying criteria of either (i)(ii)(iii) or (iv).

The Fund argues conditions do not qualify unless they are at MMI before the primary injury because PPD requires MMI.  The court finds claimant must prove a condition prior to the accident qualifies as 50 weeks of PPD, but the determination can be made post-accident and the claimant does not have to know (or have it determined) before suffering the primary accident. One presumes the court means does not have to know the degree of permanency or MMI status and not does not have to know there is a condition.  

The Fund argues that 287.220.3(2) (b) should include combination of multiple pre-existing conditions and did not have to be based upon proof only on one qualifying pre-existing condition or a combination of pre-existing conditions but could not include a combination of qualifying and non-qualifying conditions.  

Both parties agree the Commission applied the wrong section (2 not 3) and the court remanded the case, and declined to adopt the findings based on an erroneous application of the statute.  

The court noted that claimant cannot admit a record of Dr. Hess -- by attaching it as an exhibit to a set of records submitted in a 60 day of a report from Dr. Stuckmeyer.  The Fund failed to preserve its objection to allow other experts --- Dr. Hess and Dr. Dreilling -- to opine on material aspects of Dr. Hess' report  

Commission applies 30 hour rule for comp rate

 Juanita Kurbusky v Independent In Home Service

Release Date:  April 7, 2021  (August 2012 accident date)

Venue:  Texas County

Summary:  Commission awards 20% BAW for orthopedic injuries.  Claimant alleges she required RF ablation and injections and alleges she developed a DVT/PE due to inactivity.  The Commission found the ALJ erred to use 40 hours a week to set compensation rate for a part-time employee.  

The case considered for purposes of a second injury fund award a laundry list of medical condition including a  knee "locking up" at age 12 (claimant is 60).  Claimant was not felt to be PTD.    

Cast:

Elmer, ALJ 

Edelman, atty

Musick, atty

Byrd, atty

Poetz

Weimholt

Lennard

Swarringin

Commission affirms 2-1 PTD for back surgery

 Kevin Willems v Upland Trucking

Release Date 4  8 2021

Venue:  Jackson County

Summary: Commission affirms PTD award for back injury treated with surgery and spinal cord stimulator.  Claimant had a 1980s back surgery also involving the lumbar spine.  Claimant alleges he needed to lie down at unpredictable intervals and required narcotics  due to back pain.  A dissent felt claimant's capacity to sell real estate was inconsistent with his claim of PTD. 

Second injury fund offered no evidence to support its defense that claimant had sought benefits in another state. 287.220(12). 

Cast:

Siedlik

Stang, atty

Lobdell, atty

Koprivica

Logan (psych)

Fevurly

Drieling

Cordray

Statutory employment relationship in 287.040.2 prevents tort claim

State ex rel Beutler Inc. dba George J Shaw Construction et al v Hon. Sandra Midkiff

Release date:   April 6, 2021 (Mo Supreme Court)  (2016 date of accident)

Summary:  McArthur was injured on a construction site and sues in tort and subcontractors  asserted statutory employment defense under 287.040.2.  The court made a preliminary writ permanent and reversed the circuit court which would have allowed the action to go forward.  the Supreme Court in a 6-0 sustained the writ of mandamus pursued by   Shaw and Henderson as they were immune from liability in the underlying negligence claim. 

Claimant alleged an injury when his head hit the ceiling of a cab, which he asserts was caused when Henderson allegedly dumped an "oversized" load of excavated material in the truck.  

The circuit court found an exception that a defendant was a for-hire motor carrier operating within a section 390.020 commercial zone.  The court found 287.040.4 provided an exception only when the claimant is in a relationship subject to the 390.020 provision and not a relationship between other parties  upstream.  The court notes it is "inescapable" that the statutory employment chain applies to subcontractors and subcontractors of subcontractors.  

The court rejected a constitutional challenged that 287.040.2 waives a constitutional right to a jury to determine the rights involving third parties:  "the exclusive remedy provision is not limited to claims against direct employers ..."

Claimant fails to prove accident that he hit his head on a truck and caused brain damage

Mark Hundley v Conagra

Release Date:  3/31/2021  (Accident date:  2014)

Venue:  Boone County

Plot Summary:  Commission affirms a denial of a claim based on a defense of failure to prove accident when claimant alleges he hit his head when he was a restrained driver wearing a hard hat and his seat suddenly moved forward causing him to his his head.  

A defense expert contends there was no evidence he sustained a head injury and complaints  of unsteadiness more likely could be attributed to non-traumatic diabetic neuropathy and left visual defect was more likely due to diabetic condition than a brain injury. Claimant's expert based opinions on a flawed medical history that the hard hat was shattered.  

A dissent felt claimant established an accident but failed to prove injury by accident due to equivocal medical opinion about the cause of any traumatic brain injury. 

14-094684 

Cast

Young, ALJ 

Netemeyer, atty

Neumeyer, atty

Shoemaker

Shah

Silverman

Peeples