SIF PTD Denial reversed when multiple conditions trigger liability

William Wilson v Treasurer of the State of MO

Release Date:  Sept. 28, 2021  (accident date:  Nov 2017) WD 84420

Summary:  Court of Appeals reverses a denial of a claim of PTD against the SIF based on Parker and concludes the Commission erred in its application of 287.220.3(2) that liability required proof of primary and only one qualifying disability and not when claimant had multiple prior qualifying disabilities. 

The undisputed medical testimony is claimant had a primary injury (42.5% ankle) and three prior conditions which satisfied threshold involving both knees and his CV condition.   The court found the commission applied the correct sub-statutory section, unlike in Parker, but applied the wrong standard. The Fund offered no medical opinion to contest Dr. Volarich's opinions.  

Parties:

Pfeiffer, Hon. 

Volarich

McDuffey

Schmidt

Claim denied based on burden of persuasion

 Anttila v Treasurer of State of MO

Release Date:  Sept. 17, 2021

Venue:  Southern District

Summary:  Court affirms Commission denial of disability claim against the Fund, noting a failure in the burden of persuasion between the experts.

The court found claimant's alleged error that he could not amend his claim was unfounded as he was allowed to amend it and failed to prove the claim  on the merits.  The ability to amend is within the discretion of the ALJ and not prohibited by strict construction.  

Application for review sufficient to withstand motion to dismiss

 Linda Miller v Henniges Automotive  (SIF only)

Release Date:   Sept. 14, 2021

Venue:  Eastern District, Div.  1   ED  109432

Summary:  Court reverses the Commission's dismissal of claimant's application for review and finds the application satisfied the standards of 8 CSR 20-3.030(3)(a) with sufficient specificity when it went into detail about Dr. Cohen's testimony and whether the ALJ misapplied the testimony to the 2015 or 2016 claims.  Claimant noted that Dr. Cohen "corrected" his opinion that the restrictions applied to the 2016 occupational disease claim and not the 2015 injury by accident claim. .  The court agreed the "cover sheet"  alleged the decision was not supported by sufficient evidence  and such asserted error was not enough but the application allowed and included additional pages with further detail.   The court did not address the merits of the alleged error.  

Commission finds no SIF total with prior 43% BAW disability

Robert Cantrell v Spire  (sif only)

Release Date:  9 15 2021

Venue:  Cass County

Summary:  Commission reverses an award of PTD against SIF for a primary shoulder injury (20%) based on 43% BAW prior combo settlement when the award also considered of other orthopedic and psychological conditions. The commission found reversible error by consideration of non-qualifying conditions in a determination of fund liability and not due to combination solely from prior accident at 43% BAW.  

The Commission denied the request for additional evidence for the experts to address exactly that point, whether the 43% BAW alone with the primary would constitute PTD.  The Commission declined and noted the claimant "could have" solicited alternate conclusions about liability with the exercise of reasonable diligence rather than relying upon Parker case, which was on appeal at the time.  

A dissent would have affirmed the PTD award and regarded consideration of nonqualifying conditions was not erroneous. 

Inj  No.  18-019636

Cast

Rebman 

Perkins

Hinson (sif)

McCabe

Schmidt

Rosenthal

Cordray

Notes

Claimant's attempts to return to work were reportedly foiled in part when a camera installed by his employer and triggered his prior PTSD/anxiety.

The Commission noted it would have regarded a prior 43% BAW settlement to qualify even when it was "combined" multiple conditions (scheduled and unscheduled) when it divided the total weeks of disability  by the number of body parts listed on the settlement and each would separately trigger the minimum threshold.  

Employer found total liability on "second to last" accident

William Watson v Tuthill Corporation

Release Date: Sept. 13, 2021  (April 2015)

Venue:  Greene County

Summary:  Commission affirms PTD for back injury from a senior service technician resulting from a single level lumbar fusion. He described a failed return to work after surgery and then reported a new neck injury.  The employer was unable to accommodate claimant and his expert recommended onerous work restrictions.  

The case is unusual as claimant returned to work and then had a subsequent 2016 accident.  The court found that this did not preclude a finding that he was totally disabled from the 2015 accident because after the 2016 he was employed but not working in a capacity that would allow him to work in the open labor market, in effect, not 'really' working and was not at MMI.  Even though the 2016 was the "last accident" chronologically it was not a "last accident" for purposes to assess fund liability.  Claimant was already totally disabled so the vocational impact of any new injury was irrelevant to his capacity to work and the fact that he was working did not preclude a finding that he was unemployable.   

Cast: 

Mahon, ALJ 

Vasquez

Sparlin

Bang

Koprivica PTD failed back syndrome

Eldred

Woodward 16%

Sprecker

Belz

Comments:  The ALJ refers to claimant in glowing praise that he was a "loyal employee" and "toiled" at his job for 28 years and went on work trips to South Africa but had to stand in the plane because of pain.     

Claimant PTD from prior conditions fails to trigger fund requirements

Wesley Davis v Lazer Spot Inc.

Release Date:   9/13/2021 (Accident Aug. 2014)

Venue:  Cole County

Summary:  Claimant appeals a denial of PTD benefits against the second injury fund. The Commission affirms.  The ALJ found experts credible that claimant was PTD due to the 2014 low back, the prior knee and the prior low back, that the prior back aggravated the current back claim, but claimant failed to satisfy the requirements of 287.220.3(2)  that disability flows from a single qualifying pre-existing disability, when the prior knee lacked sufficient level of disability to qualify under the statute. 

The Commission noted the prior qualifying disability does not have to be known,  it does not have to be at MMI, but it fails to trigger liability when there was no testimony that the knee or knees aggravated or accelerated the primary injury.  A dissent found consideration of non-qualifying disabilities did not preclude a finding that SIF owed for claimant's PTD.

Inj. 14-063032

Cast

Fisher, ALJ 

Volarich

Weimholt

Bernardi

What's it worth?  

20% CLSS back (revision of prior surgical fusion).