Franken v Honeywell dba Bendix Corp.,
2016 MO WCLR Lexis 75
Nov. 10, 2016.
The commission reversed a denial of benefits, and found the death causally related on medical evidence which established exposure to chemical agents without clarification regarding scientifically accepted levels to cause injury based on magnitude, frequency or duration.
While treating for cancer at Anderson claimant took a dose of methadone in his hotel room, had an adverse allergic reaction, and went into septic shock resulting in organ failure resulting in death from organ failure and respiratory distress in 2005. An autopsy identified a small cell carcinoma in his lung.
Claimant worked in the meterology department at Honeywell. The ALJ found no evidence of toxic exposure, The defense expert found flawed methodology and no epidemiology or experimental studies which showed a link of bellyrium and claimant's cancer. The Commission concluded it was undisputed that claimant had some exposure and that was enough without having to show some exposure was a scientifically proved toxic exposure.
The first time any expert made a connection between exposure and his death was several months after claimant had died. The court found under pre-reform law there was no statutory duty to provide notice in an occupational disease case. Dr. Parmet, claimant's expert, had previously developed a bellyrium awareness program for the defendant. . He found the death likely due to exposure of multiple dangerous chemicals and not solely to bellyrium.
The commission found that specific omission of evidence of the magnitude, frequency and duration was too rigorous burden of proof and was "over-arching" and contrary to law. The commission found the type of cancer was not an ordinary disease of life because it was rare and that experts established some exposure to various chemical agents as the likely cause of a carcinoma.
The commission ordered equal shares to the surviving spouse and two grandchildren, who were total dependents by guardianship dating back to 2005.
Wednesday, November 16, 2016
Back TTD ordered for disputed repetitive trauma
Clawson v Cassens Transport Company
2016 MO WLCR LEXIS 70 (Nov 1, 2016)
The commission affirms an award of benefits for a 2015 knee injury in a temporary award as an occupational disease.
Claimant asserts that he had a very physical job. The employer refused to send him to a work comp doctor after he described worsening of his symptoms. Claimant's expert concluded that an MRI finding in 2016 of a new meniscus tear flowed from his work duties. He had been released from the 2010 accident with a knee strain based on a normal MRI.
The ALJ ordered TTD benefits based on claimant's testimony that he felt he was unable to work and work restrictions that prevented from kneeling or squatting. The employer was ordered to pay more than $55,000 in back TTD benefits at the time of the award plus ongoing benefits. The employer had paid some benefits and had made a 4,000 advance.
The ALJ notes the employer raised a notice defense but had a witness sit in the court room and was not called to testify. "Mr. Liljequist was present in the courtroom for the entirety of the employee's testimony. However, Mr. Liljequist was not called to give any contrary testimony on the issue."
2016 MO WLCR LEXIS 70 (Nov 1, 2016)
The commission affirms an award of benefits for a 2015 knee injury in a temporary award as an occupational disease.
Claimant asserts that he had a very physical job. The employer refused to send him to a work comp doctor after he described worsening of his symptoms. Claimant's expert concluded that an MRI finding in 2016 of a new meniscus tear flowed from his work duties. He had been released from the 2010 accident with a knee strain based on a normal MRI.
The ALJ ordered TTD benefits based on claimant's testimony that he felt he was unable to work and work restrictions that prevented from kneeling or squatting. The employer was ordered to pay more than $55,000 in back TTD benefits at the time of the award plus ongoing benefits. The employer had paid some benefits and had made a 4,000 advance.
The ALJ notes the employer raised a notice defense but had a witness sit in the court room and was not called to testify. "Mr. Liljequist was present in the courtroom for the entirety of the employee's testimony. However, Mr. Liljequist was not called to give any contrary testimony on the issue."
Commission awards benefits for plantar fasciitis.
Williams v Tyson Poultry
2006 MO WCLR Lexis 74
(Nov. 1, 2016)
The Commission affirms a temporary award for benefits for plantar fasciitis from working on concrete floors.
Claimant asserts that he had to stand during 12 hour shifts.
The employer was ordered to provide treatment, pay back TTD, and the judge noted insufficient evidence to support a defense that claimant had collected unemployment benefits. The employer expert agreed claimant required restrictions but found the condition more likely related to a non-occupational condition. The experts disputed whether he had pes planus.
ALJ Dierkes
2006 MO WCLR Lexis 74
(Nov. 1, 2016)
The Commission affirms a temporary award for benefits for plantar fasciitis from working on concrete floors.
Claimant asserts that he had to stand during 12 hour shifts.
The employer was ordered to provide treatment, pay back TTD, and the judge noted insufficient evidence to support a defense that claimant had collected unemployment benefits. The employer expert agreed claimant required restrictions but found the condition more likely related to a non-occupational condition. The experts disputed whether he had pes planus.
ALJ Dierkes
Appeal to stop award for interest fails due to appellate rules
William Scott v Saladino Mechanical and Cincinnati Ins. Co.
WD 79516 (Nov. 15, 2016)
The employer disputed paying interest on a permanent total award. The court found the employer prematurely and without jurisdiction tried to stop enforcement of the award through circuit court.
The case arose from a 2007 accident. The ALJ awarded permanent total with open medical and awarded past medical with a proviso "any past due compensation shall bear interest as provided by law." The Commission affirmed the award. The employer did not appeal further.
The employer paid the award but refused to pay any interest. The employee registered the judgment in circuit court and the judgment was not appealed further. The circuit court denied by "order" that the judgment was enforceable and not too vague.
The court concluded the appeal was filed out of time, does not meet the foundation requirements of Rule 76.25 which requires proof of a levy (there had been no actual attempt at enforcement), and the "order" does not meet the foundation requirements of a "judgment" as required by Rule 74.01(a).
The decision never delineates the dollars of interest in dispute behind a collateral attack on appeal.
Friday, November 11, 2016
Court affirms death benefits without safety penalty reduction
Hadley, dec. v Beco Concrete Products
SD 34941 (Nov 10, 2016)
Affirmed death benefits and denial of safety penalty
Claimant drove off of a highway while operating a flatbed truck in 2012 and died in the accident. The employer appealed the Commission not to apply a safety penalty to survivor benefits.
The Commission based wages under 287.250.4 based on income for the preceding year and used comparable full-time employees under the exceptional circumstances provision to calculate wages because claimant's work schedule was irregular. The court found no error to calculate wages in this method.
The Commission rejected the employer's contention that it warned the driver as a company safety rule to comply with safe driving procedures and that the claimant was speeding and violated the safety rule in conjunction with his accident. The Commission noted such warnings must be with a greater degree of specificity. The court found no evidence to show when and where the employer had adopted such a safety rule and had no persuasive evidence the claimant was speeding at the time he went off of the road.
The court noted the appellant made multifarious arguments contrary to the rules.
https://www.courts.mo.gov/file.jsp?id=107515
SD 34941 (Nov 10, 2016)
Affirmed death benefits and denial of safety penalty
Claimant drove off of a highway while operating a flatbed truck in 2012 and died in the accident. The employer appealed the Commission not to apply a safety penalty to survivor benefits.
The Commission based wages under 287.250.4 based on income for the preceding year and used comparable full-time employees under the exceptional circumstances provision to calculate wages because claimant's work schedule was irregular. The court found no error to calculate wages in this method.
The Commission rejected the employer's contention that it warned the driver as a company safety rule to comply with safe driving procedures and that the claimant was speeding and violated the safety rule in conjunction with his accident. The Commission noted such warnings must be with a greater degree of specificity. The court found no evidence to show when and where the employer had adopted such a safety rule and had no persuasive evidence the claimant was speeding at the time he went off of the road.
The court noted the appellant made multifarious arguments contrary to the rules.
https://www.courts.mo.gov/file.jsp?id=107515
Friday, November 4, 2016
Employer liable for aggravating congenital neck condition.
Stevenson v Laclede Gas
2016 MO WCLR Lexis 67 (Oct. 21, 2016)
Commission affirms 40% award. for neck surgery.
The worker underwent a three level cervical surgery following a 2004 accident when she fell while trimming trees. The employer defended the case that the accident caused a temporary aggravation and any need for surgery arose from severe congenital defects. Under the pre-reform standard of substantial factor, she established the accident made her condition symptomatic based on her capacity to perform heavy labor work and engage in various athletic recreational activities. The ALJ found the opinion of the treating surgeon persuasive that claimant was capable of some employment and awarded partial rather than total disability. ALJ Boresi made various findings about her background, including being a Homecoming Queen.
2016 MO WCLR Lexis 68
Commission affirms denial for blood pressure.
Claimant alleged she experienced high blood pressure while performing work. While being examined her blood pressure was 200/90. Claimant fails to identify an accident or provide medical expert opinion to support the claim.
2016 MO WCLR Lexis 69.
The Commission affirmed a denial of disability but awarded an outstanding bill for $463.50.
Claimant described an onset of neck pain while changing to change a valve.
"This is largely because employee, in her testimony, failed to identify any new symptom, limitation, or other permanent disability specifically attributable to the accident of August 15, 2006. Absent supporting testimony from the employee, given the lack of any contemporaneous medical treatment record substantiating any permanent increase in her symptomatology or other limitation, and in view of the purely conclusory opinion from employee's medical expert, Dr. Robert Poetz, we are not persuaded that any permanent disability is attributable to the August 15, 2006, accident."
The Commission notes to proof of medical causation requires proof of condition and disability, but
"the statute does not require that employee prove the accident was the prevailing factor causing any permanent disability. Instead, it is sufficient that some disability -- of whatever nature, duration, or extent--resulted from the accident."
The Commission concluded because claimant had to use vacation time she established a "temporary" disability to establish causation and the employer's liability for medical bills.
The ALJ regarded claimant totally disabled and recovering from the 2004 accident at the time of the last accident in 2006.
2016 MO WCLR Lexis 67 (Oct. 21, 2016)
Commission affirms 40% award. for neck surgery.
The worker underwent a three level cervical surgery following a 2004 accident when she fell while trimming trees. The employer defended the case that the accident caused a temporary aggravation and any need for surgery arose from severe congenital defects. Under the pre-reform standard of substantial factor, she established the accident made her condition symptomatic based on her capacity to perform heavy labor work and engage in various athletic recreational activities. The ALJ found the opinion of the treating surgeon persuasive that claimant was capable of some employment and awarded partial rather than total disability. ALJ Boresi made various findings about her background, including being a Homecoming Queen.
2016 MO WCLR Lexis 68
Commission affirms denial for blood pressure.
Claimant alleged she experienced high blood pressure while performing work. While being examined her blood pressure was 200/90. Claimant fails to identify an accident or provide medical expert opinion to support the claim.
2016 MO WCLR Lexis 69.
The Commission affirmed a denial of disability but awarded an outstanding bill for $463.50.
Claimant described an onset of neck pain while changing to change a valve.
"This is largely because employee, in her testimony, failed to identify any new symptom, limitation, or other permanent disability specifically attributable to the accident of August 15, 2006. Absent supporting testimony from the employee, given the lack of any contemporaneous medical treatment record substantiating any permanent increase in her symptomatology or other limitation, and in view of the purely conclusory opinion from employee's medical expert, Dr. Robert Poetz, we are not persuaded that any permanent disability is attributable to the August 15, 2006, accident."
The Commission notes to proof of medical causation requires proof of condition and disability, but
"the statute does not require that employee prove the accident was the prevailing factor causing any permanent disability. Instead, it is sufficient that some disability -- of whatever nature, duration, or extent--resulted from the accident."
The Commission concluded because claimant had to use vacation time she established a "temporary" disability to establish causation and the employer's liability for medical bills.
The ALJ regarded claimant totally disabled and recovering from the 2004 accident at the time of the last accident in 2006.
Tuesday, October 25, 2016
Failure to preserve dependency status at hearing loses Schoemehl option
Carter v Treasurer of the State of MO.
WD 80524
Aug 29, 2017
Circuit court decision affirmed to dismiss motion to substitute party in new claim for compensation.
Claimant raised a due process argument that she was procedurally barred to recovery benefits in a 2009 award after the death of a spouse in 2014. The court found claimant was estopped from asserting a due process argument in an earlier appeal (Carter I), nor could she re-assert the issue collaterally by filing a new claim that did not establish the elements of a new claim including employment.
Claimant's attempt to establish dependency through a separate civil court hearing was barred as the civil court exceeded its jurisdiction to make the finding.
The court noted that constitutional challenges could be raised initially on appeal as the labor commission could not resolve them.
WD 79437
Oct 25, 2016
Circuit court could not make new findings after it registered a judgment of PTD to award benefits to surviving spouse.
A worker had an injury in 2005. In 2009 the ALJ awarded PTD benefits against the second injury fund. No benefits, contingent or otherwise, were awarded to the spouse. No appeal was taken. In 2014 the worker died from unrelated causes. The commission denied a motion to substitute the surviving spouse as a party based on lack of jurisdiction because the award was final.
She appealed and then sued in circuit court to enter the award as judgment and ask for an order to compel the fund to pay her lifetime benefits. The court held an evidentiary hearing and based on additional facts it found dependency and contingency of benefits and ordered PTD benefits.
The fund argued as a matter of law the circuit court exceeded its authority under 287.500 to make additional findings as a basis to substitute parties and order ongoing benefits. The court found the circuit court had no discretion in entering a judgment and cannot determine any outstanding factual issues. The court lacked authority to make additional findings to determine if the surviving spouse satisfied the Schoemehl contingencies.
WD 77487
Oct. 25, 2016
The Commission lacked authority to make new findings of dependency after a final award when the issue was not preserved in the original hearing.
On the same day, the court affirmed the Commission's refusal to substitute claimant as a party based on lack of jurisdiction. The court found the commission lacked authority to allow substitution after a final award when dependency was not established in the original hearing.
Claimant asserted her due process right were violated. The court noted the statute allowed her to substitute herself as a party under a change in circumstances. That remedy was available only if she had established dependency status at the time of the hearing or by appealing the original award.
The court found other statutory exceptions to alter an award did not apply.
WD 80524
Aug 29, 2017
Circuit court decision affirmed to dismiss motion to substitute party in new claim for compensation.
Claimant raised a due process argument that she was procedurally barred to recovery benefits in a 2009 award after the death of a spouse in 2014. The court found claimant was estopped from asserting a due process argument in an earlier appeal (Carter I), nor could she re-assert the issue collaterally by filing a new claim that did not establish the elements of a new claim including employment.
Claimant's attempt to establish dependency through a separate civil court hearing was barred as the civil court exceeded its jurisdiction to make the finding.
The court noted that constitutional challenges could be raised initially on appeal as the labor commission could not resolve them.
WD 79437
Oct 25, 2016
Circuit court could not make new findings after it registered a judgment of PTD to award benefits to surviving spouse.
A worker had an injury in 2005. In 2009 the ALJ awarded PTD benefits against the second injury fund. No benefits, contingent or otherwise, were awarded to the spouse. No appeal was taken. In 2014 the worker died from unrelated causes. The commission denied a motion to substitute the surviving spouse as a party based on lack of jurisdiction because the award was final.
She appealed and then sued in circuit court to enter the award as judgment and ask for an order to compel the fund to pay her lifetime benefits. The court held an evidentiary hearing and based on additional facts it found dependency and contingency of benefits and ordered PTD benefits.
The fund argued as a matter of law the circuit court exceeded its authority under 287.500 to make additional findings as a basis to substitute parties and order ongoing benefits. The court found the circuit court had no discretion in entering a judgment and cannot determine any outstanding factual issues. The court lacked authority to make additional findings to determine if the surviving spouse satisfied the Schoemehl contingencies.
WD 77487
Oct. 25, 2016
The Commission lacked authority to make new findings of dependency after a final award when the issue was not preserved in the original hearing.
On the same day, the court affirmed the Commission's refusal to substitute claimant as a party based on lack of jurisdiction. The court found the commission lacked authority to allow substitution after a final award when dependency was not established in the original hearing.
Claimant asserted her due process right were violated. The court noted the statute allowed her to substitute herself as a party under a change in circumstances. That remedy was available only if she had established dependency status at the time of the hearing or by appealing the original award.
The court found other statutory exceptions to alter an award did not apply.
Subscribe to:
Posts (Atom)