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)