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.