No remedy in Tort Victim's Comp Fund for unpaid Comp award

 Ellis v Tort Victim's Compensation Fund 

WD 87443    April 1, 2025

The Court affirmed the Commission's denial of remedy under 537.675 as an uncompensated tort vicitm when claimant was not within the terms of the statute limiting eligible claims for personal injury or wrongful death.  

Claimant obtained an award through an ALJ for about $9,000 related to a heat stroke injury that occurred while working for an ininsured employer.  Claimant sought benefits under the tort fund when the employer did not pay the award.   The court noted there were available remedies to attempt to collect an unpaid judgment pursuant to 287.500. 

Commission dismisses named insurer from hardship award

 Paul Reboul v Richards Welding and/or Monty Richards

Inj. No. 24-019220

Release date  March 18, 2024

Claimant worked as a welder and injured his shoulder handling a heavy pipe and underwent shoulder surgery.  No medical bills were paid by the employer but claimant recieved $15,000 in temporary benefits.  In a hardshp hearing for further benefits, no one appeared for the employer/or alleged insurer.

The Commission reversed a finding that the named carier  CompSource carried insurance for the employer at the time of the accident, noting the lack of a cetification of insurance offered by either party and no credible or persuasive evidence to suport coverage.  Comp Source argued due process violations due to lack of notice and that claimant was not a covered employee due to lack of jurisdiction from an out of state injury.  The ALJ had found claimant was a 'covered' employee under Missouri law and the employer was both Richards Welding (apparently a disolved corp) and Monty Richards (the owner).   

The Commisison affirmed an award against the uninsured employer for future medical aid (no back medical was requested) and 15 weeks of unpaid TTD. The supporting documents suggest the corporation which employed claimant was dissolved due to the failure to pay taxes.  

Atty - Platter (employee) Munsell (employer, post-award)

Court denies SIF total noting it was regrettable no one preserved the bigger issue

 Jerry Thomas v Collns & Hermann and Second Injury Fund

No. ED 112795

Filed March 18, 225

The Court of Appeals affirms the Commission's denial of SIF fund benefits, which had reversed a PTD award by the ALJ.   2024 MO WCLR LEXIS 20 (ALJ Schaefer). 

The Court finds the Commission properly found that claimant failed to demonstrate his prior knee injury was a compensable injury as defined by 287.020.  The experts improperly included the non-qualifying condition in their PTD opinion.  Claimant failed to preserve his third error that he was left without a remedy if he could not recovery against the Fund.

Claimant had a prior right knee injury that required surgical repair from an injury in another state in 1993.  In 1994 he injured his left knee  in Missouri which resulted in a settlement of 25% fo the knee with a loading factor.  

Claimant had a shoulder injury in 2015 which required surgical repair.  Claimant obtained expert opinion from a Dr. "V" that he had a combo due to work restrictions of the shoudler and the knee.  A Dr. "S" assigned permanency for psychiatric conditions resulting from the shoudler.  A Dr. "D.G." opined clailant was a total due to a comibnation.  The Fund relied upon a psych restrictions alone rendered claimant unemployable on h baiss of the last accident.

The ALJ concluded claimant's knee disaiblity was greater than his settled amounts becuase the conditions because "worse" over time.  the Commisson excluded claimant's out of state injury did not count nor was  was it compensable under 287,.020 as defined. 

The court addressed the merits of the appeal but noted cliaman's points did not articulate the reasons for reversible error nor did the SIF move to dismiss the appeal.   

The Court found SIF interpretation under 287.020 too narrow and did not limit recoveries only to misosuri accident.  The Court found claimant failed to demonstrate prevailing facotr or put evidnece that it came from a hazard or risk unrelated to employment between the work activity an the injury other than occurring on property, which was insufficient.  

Regarding the threshold issue of 50 weeks, the commisison did not reach this issue and the court considered it immaterial for its deicison.

Claimant argued the employer would be liable if claimant was totally disabled and there was no recovery against the Fund.  The court found the alleged point was not preserved.  Judge Hess indicated it was 'regrettable' the question was not properly before the court. 

 The opinion hides the identity of the experts, although anyone in comp in Missouri should have a pretty good idea who is Dr. "V" and Dr. "S".

Atty:  Sievers, Voigt, Frazier

 

Court awards medical bills when claimant demanded care

 Erwin v Midway Arms

2025 Mo. App. Lexis 131

release date:  March 4, 2025

The Court of appeals reverses the Commmission based on a misapplication of law and awards medical bills for a surgery which the employer's expert eventually concluded was reasonable including the need for future medical for psych and orthopedic conditions. 

Employee declined employer's request to provide records and furnished them only after claimant underwent surgery.  The court found claimant had made requests for medical care, and had no duty in its aburden of production of medical records or reports to refute an earlier finding of MMI to trigger a further duty to provide care. The case is distinguishable in which claimant did not provide any notice.   

The Commission reversed an award of nearly $60,000 in sanctions against the employer noting employer relied upon a medical, even if it was not adopted by the Commission.  The Court refused to award sanctions based on the finding of  the Commission that both sides acted unreasonably by the employer not seeking further medical opinion and the claimant withholding medical records.

 

Commission affirms denial that surgery flowed from injury

 Robert Byers v New Prime Inc.

Inj. No. 10-103528 

Release Date;  Feb. 20, 2025.

Employer disputed surgery 10 years post accident flowed from the accident  and sought to recover  benefits of 19 weeks of overpaid TTD benefits after claimant reached MMI.  The Commisson affirms an award of 20% BAW  without separate opinion. 

Claimant alleged 35% PPD from a neck fusion and PPD from psychiatric injury and concluded claimant was PTD. Dr. Lennard rates 15% disability and noted inconsistent behavior on video.  Dr. Halfaker felt claimant ha a somatic disorder and no psychiatric injury from the accident.  The ALJ found claimant lacked credibility.

Claimant was on his third atorney at the time of hearing.

 

Commission finds new accident aggravated prior shoulder condition.

 Marc Moore v TForce Freight Inc.

Inj. No.  23-026970

Release Date:  2-4-2025

Venue:  St. Charles (Kohner, ALJ)

The Commission affirmed in a 2-1 award a temporary award with nearly $125,000 in back benefits for unpaid medical and TTD  related to a shoulder injury in an auto collision with some limited damage to the vehicles.    

Dr. Duerr performed shoulder surgery and related to need for surgery to the accident due to acute inflamation on more chronic findings.    Dr. Farley concluded the mechanism of the accident would not cause findings resulting in the need for surgery.  The ALJ noted the history of no prior symtoms supported Dr. Duerr's causation opinion, and described Dr. Farley's analysis on the mechanism of the collision but noted he could not give an opinion with a reasonable degree of biomechanical certainty.   

Claimant stated at the time of the April 2024 hearing he had one remaining appointment within two weeks but did not anticpate further care.  No future medical was awarded.   The issue of PPD was left open for later determination.  

Vietnam vet awarded PTD with 'flare up' of PTSD

 Peter Lococo v  Lou Fusz (settled)

Inj. No.  08-116135 

venue:  St. Louis (Keaveny)

Release Date:  Feb. 4, 2025

The Commission affirms an award of PTD against the second injury fund, based on a combination of back and neck strain injuries from falling on black ice, de minimus PTSD  "aggravation" and prior psych conditions, primarily PTSD.

The employer settled the claim for 1% psych based on Dr. Stillings' rating.   His expert asserted 50% BAW disability that the accident triggered Vietnam-era PTSD and mental anguish from his youth as a helicopter door gunner  and developed into unexplained and unimaginable limitations.  The ALJ found no support for the expert's diagnosis of traumatic brain injury as that was a neurologic diagnosis and no neurologic exam was performed.    

The SIF award was based on ratings for prior psych conditions ranged 47.5 to 50%, despite claimant's history that he worked 60 hours a week but still had issues.  

The employer settled the soft tissue claims for the neck and back for a total of 35% BAW. 

Commission modifies scope of a 230 week TTD award in disputed back case

 Claimant in 2008 reports he fell backwards about 4 feet while handling a crowbar, resulting in back and psych injuries in a claim for PTD benefits. 

The ALJ awarded more than $300,000 in benefits and relied upon opinions of Dr. Fonn that claimant's back surgery was necesary and gave less credit the neurosurgeons who reached a different conclusion becuase they had incomplete medical reocrds.  In addition, claimant alleged both prior and new psych injuries.  the ALJ awarded 25% of the back, 10% for psych and PTD against the second injury fund. The attorney fee was 15%.

The Commission reduced some of the TTD noting a failure to proof that claimant was engaged in a rehabilitative process and  that another doctor had taken claimant off work for pre-existing conditions. Claimant asserted he was entitled to benefits becuse the employer disputed causation..

The dissent would have denied benefits on failure to prove injury by accident or that the surgery, 4 years post-njury,  flowed from the accident based on objective findings.  

In 2008 claimant was off work due to a prior accident. In 2009 claimant was off work by Dr. Fonn due to back fusion for a prior motorcycle accident.   There was a gap in treatment for two years, and then Dr. Fonn performed additional back surgery in August 2012 which he related to the accident and kept him off work until June 2014.  Dr. Sky performed in expert exam in 2018, 10 years after the accident, and conceded his plan of care was the same type of care claimant had recieved prior to the accident.   

William Wilson v Noranda  Inj. No. 08-120003

Release Date:  Jan 27, 2025   2-1 affirm   

ALJ Young

Attorneys:  Butler, Brueggman, Lindsey

Experts: Fonn, Woitschek, Kavers, Sky; Bernardi, Kitchens 

Claimant fails to prove risk source from fall in her own home

 LaDonna Johnson v OATs

Inj. No.  23-047500  

Release Date:  Jan 7, 2025

The Commission in a 2-1 decision reverses an award of approximately $70,000 in benefits, and finds the claimant van driver failed to prove injury by accident in course and scope of her employment based on an equal exposure defense when claimant sustained injuries in her own home to retrieve work-related supplies and slipped in her own kitchen and claims walking outside in water to inspect the van made her shoes wet and slippery.


ALJ Elmer awarded benefits and found a work related risk caused claimant to be outside in the rain, standing in wet grass, that lead her to fall. She argued, among other factors, that driving her private car does not require her to step in grass, and that in private life she does not have to be exposed to the rain and that cleaning the van was a benefit to the employer.

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.