Court reverses SIF PTD denial that did not include multiple qualifying disabilities

 Alan Marberry v Treasurer of MO.

Release Date:  Oct 26, 2021

Venue:  ED 109554

Summary:  Claimant sought PTD benefits against the fund after settling with the employer for a slip and fall injury to his back resulting in a 13.4% settlement.  The Commission found claimant failed in his burden of proof to show PTD from a primary injury in combination with a prior single qualifying disability and PTD was due to a combination of prior disabilities.  

The court found prior qualifying disabilities could be considered in the determination of fund liability and only the priors, and not the primary, had to satisfy the 50 week threshold.  The fund's contention that the shoulder prior was something less  than 50 weeks was not supported by any medical opinion.  The court found no need to remand when it found Dr. Volarich credible (as the only medical expert) and the Commission already concluded claimant was unemployable due to a combo. 

Parties

Page, Hon. 

Volarich

Lalk

Thurmer

Lecinski

Campbell 

ALJ awards over $18,000 in fees and costs in disputed carpal tunnel claim

 Hernandez v Butterball

Release Date:  Oct 21, 2021  (3 cases)

Venue:  Jaspar County

17-105833, 17-100700, 19-056530

Summary:  ALJ in a temporary award orders studies for carpal tunnel and orders fees and costs of $18,788.85.  Employer stipulated to accident and agreed to provide treatment to some body parts but not to the hands/wrists.  Claimant filed two claims alleging both accident and repetitive trauma to hands/wrists.  

The ALJ noted the employer violated Missouri law by not filing a FROI.  It had prepared an incident report but denied notice until the day of the temporary hearing.  The initial answer was in default.  The ALJ notes the employer waited 2 years to obtain its own IME, after claimant had incurred costs for its own report.  The ALJ awarded costs and attorney's fees at a rate of $400/hour.  The ALJ found claimant went to the employer's nurses station on a regular basis but the employer endangered her health.

Employer relied upon expert opinion of Dr. Kutnik who stated he could make treatment recommendations because he could not form any diagnosis.  Claimant's expert recommended EMG studies to evaluate suspected carpal tunnel. It is unclear form the opinion if he addressed why an EMG was appropriate or not.  

The Commission adopted the award for treatment but deferred on ruling on the award of  costs and fees because the case was not at MMI and the issue for appeal was not ripe. A dissenting commissioner would have affirmed the award of fees and costs in a temporary hearing. 

Parties:

Fischer, ALJ 

Newman

Larimore

Lennard

Kutnik

Court awards PTD against Fund for undiagnosed carpal tunnel

 Mark Lynch v Treasurer of the State of Mo.

Release Date:  Oct 19, 2021

Venue:  Eastern District

Summary:  The court of appeals reverses a denial of second injury fund benefits as not supported by substantial and competent evidence when it found claimant's retirement unrelated to carpal tunnel which was diagnosed and surgically treated years after  his retirement.

ED 109502

Discussion:  

The SIF argued claimant failed in his burden of persuasion that his retirement was a combo and relied upon an inference from a medical record mentioned in a vocational evaluation that claimant retired unrelated to his carpal tunnel.  The court found the record from Dr. Rotman not admitted in evidence, the inference was not completely supported, and that the medical and vocational opinions of a "combo" to trigger Fund liability were not found to lack credibility by the Commission or contradicted by other expert opinion. The court noted the commission failed to identify other medical findings prior to claimant's retirement to support an inference of symptomatic carpal tunnel prior to his retirement, even though the condition had not been diagnosed before he retired. 

Claimant sustained numerous injuries during his 35 year employment with Anheuser Busch.  His records identify symptoms in his hand the year of his  retirement and a diagnosis of carpal tunnel on nerve conduction studies 5 months after his retirement.  Claimant testified he had numbness and tingling for 20 years which impacted his capacity to work and he retired because of his carpal tunnel, ringing in his years and other conditions but at the time did not know anything about carpal tunnel.  It is not explained why such chronic symptoms described in his  testimony are not documented until shortly before he retires.    

The Commission case notes the employer settled for 20% of each wrist. No medical benefits were paid.  ALJ Teer denied compensation and additionally found claimant failed to establish his tinnitus was a pre-existing condition. 

Parties:

Quigless, Hon. 

Tatlow, atty

Campbell, atty 

Woiteshek

Cordray

What's it worth?   SIF PTD 

Temporary award supported by expert finding of acute radiculopathy

 Charles Campbell v DISH Network 

Release Date:  Oct. 7, 2021  (Accident date:  12/5/2018)

Venue:  Dade County

Summary:  Commission  2-1 award upholds temporary award to treat C7 radiculopathy with fusion following accident while moving a ladder.

Inj.  No.  18-109984

Cast

Mahon, ALJ

Potter, atty

Larimore, atty

Olive

Bernardi

Discussion:  Claimant's expert contends the accident was so severe to cause a new radiculopathy from the load of the ladder, and found prior imaging of the studies of the cervical spine did not identify the same condition.  The ALJ essentially found claimant a had a new medical condition (radiculopathy) despite prior degeneration, citing  Randolph County v. Moore-Ransdell, 446 S.W.3d 699, 706 (Mo. App. W.D. 2014). The dissent noted the accident could have triggered symptoms, but there were no new changes.  

The dissent noted claimant's spinal condition was more advanced for his age so it was not "normal" and notes claimant's delay in obtaining treatment for 3 months and capacity to work during progressive symptoms further demonstrated the lack of any severe, acute event.  

Claimant's expert contends the medical condition was c7 radiculopathy and prior degenerative disc disease was not a medical condition.  "Dr. Olive’s opinion, and the ALJ’s award based upon that opinion, hinge on the untenable assertion that the condition and the disability are the same thing: C7 radiculopathy. "This reading would render § 287.020.3(1), which specifically refers to the medical condition and the disability as two separate entities, meaningless."

Court finds CPA less qualified to assess earnings in small business than a family law lawyer

 Laura Williams and Jennifer Williams, etal  v Reeds, LLC

Release Date:  Oct 5, 2021

Venue:   Court of Appeals - Southern District     SD  36883, SD 36892

Summary:  This case is a fight over applying the "special circumstances" wage rate section to figure out what to pay survivors when the sole company owner was crushed by a car and  took a weekly draw that was not designated as wages and paid business and personal expenses off the business account.  

The Court deferred to the Commission's finding as to which expert it believed and adopted findings of a family law attorney over the opinions of a CPA and forensic specialist resulting in computation of wage rate based on $62,100.13 annual earnings rather than the net profits of the business of $13,127.  The court noted it is bound by the commission's finding even if other evidence would support a different result.

The court found a family law attorney was qualified as an expert to render an opinion on earnings under 490.065.1, and the expert's lack of expertise in worker's comp did not preclude admissibility of his expert opinion.  The employer argued since he was not an expert in comp, he could not opine on comp rate pursuant to the statute.  

One of the surviving daughters failed to persuade a majority of the Commission that she was "full-time" student to to avoid disqualification as a dependent.  The daughter argued employer lacked standing to challenge dependency when the ALJ found it, and the Commission found it was no longer present.  The court found the employer had standing to challenge the qualifications of any of the benefit recipients.   The Commission had found if claimant was part-time student at age 18, that dependency could not be revived by later enrolling full-time.