Diabetic worker fails to convince judge that work was the prevailing factor in CTS

Larry Santhuff v Doe Run

Inj. No. 20-055584

Decision:  Dec. 13, 2024

The Commission affirms a denial of a claim of injury by occupational disease and finds a diabetic claimant failed in the burden of persuasion  that hand-intensive work that was a mild-moderate risk of trauma was the prevailing casue of carpal tunnel syndrome.

The ALJ found Dr. Brown more persausive in his explanation of the role of diabetes as the more severe risk factor noting EMG evidence likely from diabetes both to the ulnar, median and sensory nerves.  Dr. Brown dismissed the finding of synovium thickening or improvement after surgery as convincing factors why the conditon should be regarded as occupational.  The parties disputed the reliability of information about jub duties.  The ALJ felt claimant's surgeon and expert, Dr. Schlalfy, had not fully addressed the risk associated with diabetes.  

Atty:  Medcalf, Reynolds

Experts:  Schlafly,  Brown

ALJ:   Young  

Court rescues non-qualifying PTD claim to use "load" to reach statutory theshold

 Ryan v State (Second Injury Fund)  

2024 MO App. Lexis 861

release Date:  Nov. 26, 2024

The Court reverses the Commission's denial of PTD benefits aganst the second injury turning on definitions of "compensable injury" and "direct result"  and finds enhanced disablity or load to a prior shoulder disability settlement  is also a direct result of the injury to meet minimum 50 week thresholds for fund liability and adds a load to a piror amount of 46.4 weeks to exceed the threshold.  

There is no dispute that claimant was PTD due to primary and pre-existing. The Court found the commission erred just to consider the settlement against the employer for a prior shoulder (below threshold) and not to include the load factor in the settlement with the fund.  

The Court addressed the issue of "direct result" but notes the issue was briefed but neither party preserved error when the Commission exceeded its powers to address it when the issue had not been preserved on appeal.  

ALJ Zerrer originally issued an award n the  2011 claim.   He awarded 20% of a shoulder and found a 15% load.  In the 2015 claim he had PPD to the shoulder and the neck.  Claimant argues the 15% load should be added to the primary settlement with the employer.  

A dissent felt claimant was disqualified using strict construction when his expert considering non-qualifying disabilities and did not provide an alternate conclusion by excluding them.   

Atty: Wood, Fournier

ALJ  Tilley  

Art world has gone bananas.

 Then there is the story about the banana and the duct tape.

Those comp attorneys who do not follow the art world may have missed the recent BBC story, “Duct-taped banana artwork sells for $6.2m in NYC.”

Cattelan’s artwork of banana duct-taped to a wall reached 6.2 million at Sotheby’s. The “art” was introduced to the public in 2019.  The banana on the wall has gone on a world tour with instructions on how to replace the banana when it rots. A Chinese crypto guy bought it fighting off five other bidders.

The story raises important points to the comp practitioner.

First, there are those cases in comp world that are not like all the other cases in comp world.  Fact patterns may be so bizarre to sound apocryphal, even in the metaverse.   This makes it harder to predict outcomes, increases risk of mis-valuation, and triggers a lot of soul searching and buyer’s regret whether the apple duct taped to the wall is not worth as much as the jalapeno duct taped to the wall. 

Second, some people see value in things where others do not.  There are those people who believe cases are worth zillions if a rotting banana is worth millions.   This explains the thousands of things in people’s basements that have been held for years because they might be worth something one day.  Somtimes a banana is just a banana, and like a bad case, has a diminishing value over time.  

Third, there are apparently some people in the art world who can impulsively spend six million on a banana and sleep at night thinking they have had a good day.  There may be five other bidders for the banana who sleep even better. In the claims world, the spending profile of the average adjustor is a lot different than a Chinese crypo king, dollars are more closely watched, and burden of proof usually requires more than throwing something against the wall to see what sticks.

There is always a market if someone can find a willing buyer.    Injured workers waiting to settle their cases might start taping fruit to the wall and start the bidding on e-bay. It might even sell better than the old collections of pet rocks and mood rings and no one has to wait on medicare set asides.  

 

Commission affirms PPD award against SIF in pre-reform case (17 years post-accident).

 In a SIF case that is now 17-years old,  the Commission affirms a denial of PTD SIF benefits  based on prior conditions to the knee, shoulder or neuropathy when the expert's opinions about prior limitations were inconsistent with claimant's prior high level function, claimant had a good recovery from the primary,  and the expert did not assess claimant's condition at the time of the accident but his vocational status 10 years later.

The commission affirmed an award of partial benefits against the SIF  (old law) noting primary injuries to both arms (carpal and cubital) combined with priors of  20%, 15%, and 10% of the cervical, thoracic and lumbar spine.  

Dennis Eldridge v Zoltek Co. (SIF only)

Inj  No.  07-077605  (dec.  Nov. 21, 2024) 

Venue:  St. Charles County  (ALJ Gilliam)

Atty:  Parker, Kellerman   

Court of Appeals finds broadly-phrased application for review complied with notice requirements

The commisison found PTD liaiblity against the second injury fund, reversing a finding of PTD against the employer.   The SIF, and claimant, objected and argued the employers application for review was insufficient.  

The court  of appeals affirmed the Commission and found the employer provided sufficient detail of alleged error, despite criticism from the Commission that the notice "certainly could be specific"  alleging broad error that the ALJ misapplied the law, the award was against the overwhelming evidence and there was error relying upon findings of impairment.   It noted  case history of the commisson rejecting deficient applications but no cases in which  the court of appeals reversed a finding when the Commission found the applicaton was sufficient.  

The court declined to address whether the AFR now required strict construction after reform, and found the notice sufficient even applying strict construction.

Emerson v Prestressed Casting Co., SD 38434  (Mo. App. 2024) ( decided Nov. 19, 2024)  

Claimant fails to prove back injury resulted in need for surgery

 Neitzert v New Bloomfield

Release Date Oct 30 2024

Venue:  Callaway County

The Commission 2-1 affirms an award of 15% BAW for a back strain while trying to move a drill press and found claimant's need for surgery flowed from subsequent degenerative conditions and not from the work injury based on the expert opinion of Dr. Chabot.    A dissent asserted because claimant denied priors, that all benefits including PTD flowed from her admitted back strain and escalated years later into a need for surgery.

 ALJ Farmer

Commission flips denial of future medical on arthritic knee

 Terry Tedder v City of St. Louis 

20-060957

Claimant injured his knee and proved a need for total knee replacement for his arthritic knee, reversing the finding of  the ALJ who awarded 35% of the knee but denied future medical. 

Dr. Volarich indicated claimant would "likely" require a total knee in the futrure.  

Dr. Hawk indicated that claimant's work related meniscectomy made it more likely for him to require a total knee. 

Dr. Krause concluded any need for total knee flowed from prior OA, and that any contribution from work was "slight."

The Commission found the need for future treatent flowed from the work accident, even if the work accident contributed marginally to the need for care, and that Dr. Krause may have used a reversible  prevailing factor standard.   

The ALJ noted the effects of the knee were "unusally" severe with constant fear of the knee giving out. The ALJ noted claimant had unique credibility as the treating physician who observed the knee at the time of surgery to concude much of claimant's problem was degenerative. A dissent would have affirmed the denial of future medical. 

  

Commission affirms repetitive trauma award for arthritic employee.

 Sherry Neighbors v. The Salvation Army

21-029047  D/A 2-11-2021

The Commission affirms a PPD award 2-1 of more than $70,000 for a 60 year old former employee with arthritis who claims repeittive trauma disorder to both shoulders and both feet based on testimony of 'unrelenting' work for 15 years standing on concrete 40 hours a week, lifting items, and putting clothes on racks and using vibrating equipment.  A dissent felt she exaggerated her job duties.  

She claims she quit when she could no longer lift her arms.  The ALJ admitted non-peer reviewed magazines and noted a "negative interaction" between the expert and the doctor.  The ALJ found the events compensable whether they caused arthritis or aggravated it.  

ALJ Fowler

Atty: McKay, Smith

Experts:  Charapata, Frevert, Lingenfelter, Hallaron

Commission stacks prior CLSS to reach SIF threshold

 Brian White v Missouri American Water

20-018403    dec. 10-1-2024

The Fund appealed a PTD award against it on a primary 12.5% settlement and in which the ALJ allowed some of claimant's 10 prior settlements to combine to reach threshold levels.  

Claimant is 58 years old and treated essentially for a chest strain which the treating doctor felt represented 5% new disablity imposed on prior conditions.  Claimant relied upon opinions of Dr. Volarich and Gonzalez who found claimant total combo with prior back and  shoulder conditions.    

The Commisision rejected the Fund argument that an occupational disease was not a qualifying condition and found multiple successive conditions to the same body part (back) could combine.  

Atty:  Gregory, Kincaide

ALJ Keaveny 

Experts, Volarich,  Gonzalez

Commission denies PTD against fund on issue whether priors qualify

 Jeremy Jarvis v Monsanto 

Inj. No. 15-098439  

decision:  Oct 3, 2024 

The Commission affirms a denial of SIF benefits on a failure to prove a prior arm condition was a qualifying prior disablity.  The second injury fund indicated claimant was bound by a prior settlement amount, and the Commission concluded that a prior settlement amount was relevant but not controlling like a binding judgment.    

A dissent found that other qualifying disability supported an award regardless of the history of a fracture adn noted vocational opinon that claimant's movements would make him appear disabled to a potential employer.  

The ALJ noted two separate issues whether claimant was totally disabled and whether the Fund had liability and that the conclusion, although listed in alternate scenarios, included nonqualifying disaiblity. The vocational expert indicated the right leg alone might render claimant totally disabled due to a need to accomodate pain control.  

The 45 year old ironworker sought PTD benefits against the SIF after settling with the employer and relied upon two prior cases, one in which the fund had paid benefits.  The ALJ found a leg injury at 2011 by itself did not meet the minimum threshold but become more disabling due to a subsequent teatment.    The ALJ, however, found claimant's prior left wrist injury did not make threshold and that Dr. Volarich's efforts to make the PPD a bigger number were not persuasive.  

The ALJ left unresolved whether a loading factor paid by the employer  could be considered.  

   

ALJ  Boresi

Atty:  Knepper,  Campbell

Experts:  Volarich, Lalk 

Court awards 7 years in unpaid Schoemehl benefits to surviving widow

 Amie Elsworth v Wayne County

Case No.  SD 37237  (Aug 20, 2024)

The court of appeals affirmed an entry of judgment on a final award awardng ongoing weekly benefits and back benefits since 2017.  

The ALJ made a determination of PTD following a catastrophic injury and claimant died while the appeal was pending.  The surviving wife filed a motion for Schoemehl benefits related to the 2007 accident.  The Court noted the Commisison "wittingingly or unwittingly" had made factual determinations to support benefits to the surviving wife in 2017 and the employer's decision to cut off benefits was erroneous.  It found the Commission committed harmless error by claiming it was not addressing Schoemehl.  

Commission everses PTD award against Fund for nonqualifying priors

 Sandy Koehn v Accessibility Remodeling

Inj. No. 20-078387

release  date:  9 19 2024  

The Commission reverses a PTD award against the second injury fund and notes the ALJ erred by including non qualifying prior disabilities below threshold.  

The Comission noted claimant's expert attempted to unbundle a prior settlement allocated to joint body parts, and found the opinon of allocation  inconsistent with other medical records and prior deposition testimony.  The Commission criticized the expert for legal opinions about compensability outside his expertise of opinions with a reasonable degree of medical certainty and that claimant could not rely upon an Oregon settlement when fund liablity was predicated on finding of compensaiblity of prior settlements as defined by compensable injuries and accidents under Missouri law.  

ALJ Rebman had awarded PTD to the 59 year old claimant who settled with the employer for 30% for an operated shoulder and relied upon opinions of Dr. Koprivica for a PTD award against the Fund for the back, other shoulder and hand.  The ALJ noted the expert did excluded nonqualifying priors from consideration. 

Employee fails to prove Covid contracted from work from other infected co-workers

 Gordon Johnson v RBX Transportation 

Inj. No.  20-094915  D/A  Oct 8, 2020

In a case of first impression, The Commission affirms a denial of a claim of injury by occupational disease (Covid), and denies the Fund's motion to dismiss for briefing deficiencies, but supports the denial of benefits as their claim is deriviative.  Claimant's argument was fundamentally that other people had Covid at work so he must have contracted it there because he didn't go out in public away from work. 

Claimant alleges complications after a covid diagnosis resulting in hospitalization, pneumonia, use of a ventilator, need for a trach, and ultimatley released and dependent on supplemental oxygen.  The ratings ranged from 25% (Dr. Cantrell) to PTD (Koprivica).  Claimant worked as a driver and night dispatcher and a co-worker who crossed paths for 15 minutes tested positive for Covid around the same time. Prior conditions included poorly controlled diabetes.  Testimony was conflicting how often workers wore masks. Claimant asserted minimal contact in the community and asserted his food was delivered.

The ALJ found in Oct. 2020 that covid was an ordinary disease of life.  The judge rejected the claimant's argument that calling it a novel virus did not keep it from being an ordianry virus.  The ALJ found insufficient evidence that the disease arose out of employment or in course of employment.  Claimant failed to show anything inherent in the risk of the job, unlike a job that exposed him to dealing with members of the general public on a daily basis.  Claimant argued he had greater exposure at work than at home but the ALJ found that comparison was not a relevant statutory standard.  Evidence of simultaenous symptoms did not show a risk source of exposure to someone symptomatic before he developed the disease. 

Claimant advanced a theory that he was exposed to someone sick with cold symptoms but lacked evidence to show that exposure was someone who had covid.  Second, evidence of other people who had Covid at the same time or after claimant did not show a risk source.  A doctor could not identify who had it first when two people presented with symptoms together.  

The ALJ identified multiple other states that have rejected Covid claims. 

Employer prevails in exclusive remedy defense

 Jonathan Montgomery v Coreslab Structures

WD 89610

Release Date:  Aug 27, 2024

The court of appeals affirms a summary judgement that the plaintiff's claim for damages belongs in workers comp and not cvil court because he was a statutory employee pursuant to 287.140 and periodic work within the usual business did not defeat exclusive remedy. 

Claimant was loading a vehicle and struck by a Coreslab employee resulting in injuries to his back and knee.  He was working as an independent contractor for  Becker, which had a contract to deliver product to Coreslab..  Coreslab asserted as a defense to the tort claim that claimant was a statutory employee.  

The case turns on a minor procedural issue and finds a core issue on appeal of usual business  was not denied in the summary judgement motion.  Claimant asserts since he performed delivery work that was periodic it was not part of the Coreslab "usual" business to be be considered a statutory employee, but concedes other elements of the definition.  Coreslab stated in its motion that moving slabs was routinely done on a regular basis.   The court noted it can only review the summary judgment motion record and the record showed no procedural denial this assertion or evidentiary facts that would support a denial and considered the position "baffling" and "facially incongruent"  because there was no affidavit to explain why the statement of fact  why Montgomery  could not admit or deny the assertion.   

The court went further and decided on the merits that the episodic performance of the work was not dispositive if the work was performed within the essential business.  

Commission affirms PTD for CRPS case

Shirley Young v Wasabi Japanese Steak House & Sushi

Inj. No.  17-026735     2024 MO WCLR LEXIS 15

Issue Date 5/10/2024  (D/A 4/2017) (Fisher, ALJ) 

The Commission affirms a PTD award for bilateal injuries when claimant fell in 2017 based on a unresolved "electrical pain" symptoms and numbness following treatment over two years for CRPS, nerve releases and a fracture to her left arm and "overuse" to the other arm..  The ALJ allowed a credit for overpaid TTD when claimant continued to work at a radio station in which she described as a highly accomodated position.  In addition to other benefits, the Commission affirmed an additional award for disfigurement.  

Experts:  Koprovica, Eldred, Lennard, Cordray

Commission affirms dismissal of claim for failure to prosecute noting excuses were highly speculative

 John Tippit v St. Louis County Government (fund only)

Inj. No. 11-016477    2024 MO WCLR LEXIS 16, 17

Issue Date:  5 13 2024  (2011 case) NOA dismissed 7/23. ED 112765

The Commission affirms a dismissal for failure to prosecute a 13 year old claim against the second injury fund. The case was remanded for an evidentiary hearing and then appealed. The employee did not file a brief.  The case was appealed to the court of appeals on 6/13, and dismissed on 7/23 as untimely when it was filed a day late.  . 

The DWC scheduled a 2022 "virtual" show cause setting why the case should not be dismissed.  EE counsel did not partiicpate.  EE challenged service of the DWC notice.  The Commisison found that notice was properly sent to a last known (home) address and had been signed for by someone at the address..  Employee testified that he was fishing, never saw the mail, and speculates the postal delivery person opened the mail and discarded it.  The Commission found it had no duty to send notice to an attorney who had not entered as an attorney of record.  The Commisson further found knowledge of the case by counsel and a lack of documented activity to show lack of prosecution for 14 months leading up tot the hearing.

WITNESSING DOG BITE COWORKER NOT EXTRA-ORDINARY FOR PTSD CLAIM

 Libby Boyer v Taney County Animal Control

Inj. No.  21-090237      2024 MO WCLR LEXIS 24

Release Date 5/28/2024  (D/A Dec 2021)  NOA  6/24  SD 38569

Claimant alleged PTSD mental trauma when she witnesses a co-worker at the kennel attacked by the dog an the coworkers "blood and flesh" came in contact with her.  Claimant reported she quit her job at the kennel but went back to work for 2 other employers.  She had a history of witnessing other animal attacks and a incident of domestic violence when she was threatened with a gun and fled quickly, an experience she had not disclosed other expert. 

The Commission noted claimant's expert, Dr. Sky, provided no opinon that the event of witnessesing an animal attack was extraordiary or unusual.  Claimant put forth evidence of seeing previous attacks in the past.  The reason she quit was for several reasons which did not support the inference the activity was so extraordnary to make her leave.   

Commission affirms SIF PTD but disallows combining CTS into BAW

 Sonia Mendez v Butterball LLC (sif only)

Inj. No.  16-105570         2024 MO WCLR LEXIS 23

Release date 5/28/2024    (D/A June 2016)

Claimant sought PTD benefits against the second injury fund, claiming prior repetitive trauma injury to both arms (carpal tunnel) and neck resuitng in 30% to the neck and 25% of the arm. 

The Commission found the ALJ erred to combined carpal tunnel surgeries as BAW for fund liability, when claimant's settlement and claimant's expert rated them separately, below threshold.  

The Commission found inconsistencies in vocational testimony whether the liability was last accident alone were not fatal to the claim.

The Commission rejected the claim that claimant's shoulder injury and surgery at 22.5% was not qualifying because one expert rated him below threshold.   

The Commission found it was not "bound" by settlement agreeements designated disablity below threshold and could reach different opinions.  

The Commission affirmed a PTD award against the Fund, excluding the CTS from consideration.  

The ALJ noted claimant lived in Carthage,  had a large family, a 4th grade education, and was an immigrant who spoke no English 

Commission finds failure to prove leg amputation compensable, noting signficiant priors

 Hasselbring v Mo. County Nursing Home District

Inj. No.  21-079066    2024 MO WCLR LEXIS 22  

Release Date  5 28 2024  (D./A.  Nov. 2021)  NOA  6 12 2024  WD 877279

The Comission reverses an award of temporary benefits (ALJ Fischer) and fnds claimant failed to carry his burden of persuasion that he had an injury by accident.

Employer had disputed $127,000 in medical expenses. Claimant was transporting a large women in a wheelchair, lost control of the wheel chair and the estimated 500 pound weight of woman and chair ran over his foot.  His leg lost circulation and was surgically amputated above the knee when corrective surgery to restore circulation failed. .    Claimant had a prior history to the leg with findings of aneurysm in the leg with prior advice to surgically improve blood flow to allow exercise.  

Dr. Fernandez and Dr. Rao disagreed about the role of the accident in the need for surgery.  Dr. Rao felt it was only an initiating factor and that the accident did not cause a loss of blood supply and had chronic ischemia.  Dr. Fernandez stated it caused swelling and surgery was necesary when he could not re-vascularize the foot.  The Commission  distinguished the case from Tillotson, and found no proof of a compensable injury by accident because the accident was not the cause of the resulting medical condition.  

cident involving the wheelchair was not the prevailing factor in causing both his resulting medical condition and disability. Absent the requisite proof of a compensable injury, Tillotsondoes not support an award against employer/insurer for the cost of past or future medical treatment.

or future medical treatment.

ALJ finds claimant bound by below threshold settlement agreement

 John Carroll v Byrne & Jones Enterprises, Inc. 

Inj. No.  21-0587999 (D/A May 2021)

Venue: St. Louis County (Tilley, ALJ)

Issue Date 5 30 2024

The Commission affirmed a denial of SIF benefits on a failure to show prior disablities that reached threshold levels.

The ALJ noted multile reasons.  Claimant could not challenge the amount of prior disaiblity which  he agreed n a prior settlement (below theshold) by obtaning an expert opinion rating disaiblity at a higher level (above theshold).  The ALJ also noted Dr. Volarich's opinions about "exacerbation" were evolving over several of his reports, and did not correspond with claimant's actual testimony but originalted with the expert how a knee condition affects a hand condition.  

The ALJ sustained a fund objection to admitting noncertified records relied upon by experts, presumably for the truth of the matter asserted. the ALJ notes such records may be admissible under 287.210.7 if the expert's reports had been submitted by a 60 day motion.  The ALJ excluded unemployment records under a relevance objection when rate was an admitted issue.  

The beat goes on with highway worker's mental claim after 8 years

 Linda Mantia v Mo Dept of Transportation

Inj. No.  08-096313    2024 MO WCLR LEXIS 21

D/A  May 30, 2008

ALJ Carlisle

Atty:  Swaney

Experts:  Jovick, Stillings 

The Commission reverses the ALJ finding that claimant failed to prove "extraordinary " stress compared  to a "reasonable" highway worker, and awards 50% BAW ( $77,000 in benefits) for depression  with open medical after a series of multiple appeals since the 2015 award.  

The  claimant introduced additonal evidence on a remand hearing and the commisison concluded claimant had more exposures (quantity, approx. 1000 accidents) over a 29 year career and uniquely stessful exposures to 'carnage, death and tragedy'  (quality), as comporable employees rarely encountered fatalities.  The Commisison noted the correct analytic focus was not whether the profession was stressful but whether the actual events experienced by the claimant were of such a nature to cause extraordnary stress within a reasonable person within the profession.  

An appeal was subsequently  filed with the Court of Appeals on July 1 (ED 112845).  

Salvage attempts at 10 year old PTD claim lost by flipping opinion

 Russell Locascio v Groendyke Transport Inc.

Inj. No.  14-104642     2024 MO WCLR LEXIS 18, 19 

Venue: Jackson County  (Cain, ALJ)

Experts:  Stuckmeyer, Cordray,Drieling,  Lenarz

Release Date:  May 30 2024 (2014 accident date) 

Atty: Mason, Friedman 

The Commisson modifes an award of PTD for last accident alone from a shoulder injury to an award of 35% PPD of the shoulder  with a 3x operated shoulder while affirming open medical (based on finding of possible need for reverse total shoulder). 

The ALJ noted that claimant changed the theory of the recovery of the 2014 accident to comply with a Cosby analysis and retook expert depos.The ALJ relied upon vocational opinion that claimant's "need" to remain recumbent due to symptoms of last accident alone rendered him unable to work.     An expert  concluded any PTD was last accident alone 6 years after the accident, after 3 earlier reports indicated the last accident caused only a partial disablity.  The commisson foudn the expert lacked crediblity for flipping.  The commission also concluded crediblity of the vocational expert "tainted" by lack of analytic consistency.  

Commission takes away PTD award and finds "credible" expert is not credible after all

 David Wilson v Robertson County Fire Protection District (Fund only )

Inj. No.  16-051959, 15-004493

Release Date: Aug 6, 2024 

Venue:  St. Louis County (Mitten, ALJ)

Atty:  Barry, Kincade

Experts:  Volarich, Gonzalez, Hughes (for Fund)

The claimant, a 66 year old firefighter, strained his low back and settled the case for 13%.  He had prior settlements of 25% of the ankle and 25% of the knee.  The ALJ found three prior conditions, two of which met threshold.  The Commisison address two issues:  whether the ALJ found the experts did not rely upon the non-qualifying conditon and whether plaintiff's experts were credible..

The commisison finds the SIF did not appeal the issue regarding inclusion of the knee but the Commisison found it had been included in the PTD determination  (when the ALJ said it wasn't) as reversible error to take away the award.. 

So what is going on, here?   SIF liability must be based on qualifying prior conditions.  A prior conditon that does not qualify does not add or subtract from that liability, unless the prior is considered as a reason why the claimant cannot work.  In this case, the judge stated she didn't consider it as part of the reason for SIF liaiblity. The Commission disagreed and stated it was part of the conclusion, noting the rating and extensive restrictons provided by claimant's expert for a non-qualifying disability. 

Another important lesson is that finding credibility is not a final word and can be readdressed by the Commisison.    It found the concluson of "credibility" of claimant's  experts was not supported due to multiple contradictions between the facts and facts relied upon by the experts,  noting  a toxic  need to lie down or concentration problems, not present in other evidence or testimony. 

The case is an unusual departure to attack a finding of crediblity by the ALJ , when there  were material inconsistnecies n the material facts relied upon.  

SIF claim doomed by lack of prior records

 Jeffrey Wetzel v GM Johnson

Issue Date:  July 16, 2024  

Inj. No.  18-021613   , 2024 MO WCLR LEXIS  26

Venue:  Carol County (Rebman, ALJ) 

The Commission reversed an award of PTD benefits against the second injury fund, and finds a failure of proof that claimant produced a medically qualified pre-existing disability.  Claimant relied upon his self-reported history of a prior back injury, a prior 17% settlement, and an expert who rated the prior settlement. The Commission noted that claimant offered no prior treating records and the expert,Dr. Volarich,  asked for but did not receive prior treating records.  Claimant settled the primary crush injury for $55,000 and sought to recover fund benefits from a prior injury while working as an ironworker and sustained multiple fractures to his back from a fall. 

a qualified

medically documented preexisting disability as required by § 287.220.3(2)(a)a

SIF Total supoorted as nonqualifying prior does not count against or for burden of proof

 Jason Eckhardt v Treasurer of Missouri

No. ED 112132, 2024 MO APP. LEXIS 520 

Filed July 30, 2024  Page,  Gaertner, Quigless

Atty:  Lally, Kincaid 

Claimant sought PTD benefits aganst the second injury fund based on multiple prior work injuries.  The Commission denied the claim.  Eckhardt v American Airlines, 2023 MO WCLR LEXIS 54 (Schaefer, ALJ) "Mr. Eckardt did not meet his burden of proof and persuasion because he did not produce credible and persuasive evidence suggesting he was PTD as a result of the combination of the primary injury and only his qualifying preexisting disabilities."  

The Court reverses the denial of Fund benefits and affirmed a determination that occupational disease "counted' for Fund liability. 

Clamant's primary injury in October 2015 invovled his neck and shoulder.  He underwent a surgery with incomplete recovery.  he was MMI in Janaury 2017.  It was settled at 35%. 

His expert, Dr. Volarich, found a total based on knees, shoulders and carpal tunnel. 

The ALJ awarded PTD benefits based on 5 prior qualifying benefits.  His 6th injury, a shoulder, was 2 weeks short to qualify.  

The Commission reversed.  It found the CTS qualified but the award erroenously included a nonqualifying condition.  

The court found claimant must show a combo with a primary when combined with 5 qualifying prior disabilities. The court found the primary combines with all qualifying pre-existing which in this case are more than 400 weeks.  The eixstence of non-qualifying disability does not count against or for the cliamant in evaluating whether he mets the second threshold.  In this case, any consideration f a  nonqualifying condition was not fatal if the evidence showed other disabilities sufficiently combined.

Discussed:  

Klecka v Treasurer, 644 S.W.3d 562 (Mo. banc 2022)

Treasurer of State v Parker, 622 S.2.2d 178 (Mo banc 2021) 

Obermann v Treasurer of the State of Mo, 681 S.W.3d 559 (Mo. App. 2023)