Jimmie Holifield v Mississippi Lime Company
2018 MO WCLR LEXIS
Jan 18, 2018
ALJ Strange
Atty Meyers, Micherman
Experts: Mason, Mikulec
Claimant alleges tinnitus for occupational exposure since the 1980s and filed a claim in 2015.
The ALJ notes that proof of tinnitus does not have to be established by a medical doctor instead of an audiologist.
The ALJ rejected a notice and statute of limitations defense and the condition was not reasonably discoverable until 2015 when Dr. Mason diagnosed the condition as an occupational disease.
The ALJ awarded 5% BAW for tinnitus.
The Commission affirmed without a separate opinion.
The Commission in recent years has ruled on multiple claims of hearing loss and tinnitus with the same defendants, attorneys and experts with different results.
Wednesday, January 31, 2018
Tuesday, January 30, 2018
Court finds accident based on strain during usual job duties
Clark v Dairy Farmers of America
2018 MO APP. LEXIS 56 SD 34826
January 25, 2018
The employer appealed on the narrow issue whether the claimant suffered an unexpected traumatic event or unusual strain when she was performing her regular duties stirring cheese and she heard a pop in her ribs. Employer claims the claimant must prove a traumatic event as a prerequisite to accident.The court of appeals finds substantial evidence to support the finding that claimant sustained an unusual strain by mixing cheese curds and proved she had an accident.
The Court noted 287.120.1 requires proof in a disputed accident whether claimant sustained an unexpected traumatic event or an unusual strain. The commission did not expressly identify what was the "accident" and what was the "injury" and the court felt it was "unduly restrictive" for the employer to infer the Commission meant the injury was only the "pop" as an "unexpected event."
The court noted the facts supported claimant sustained an "unusual strain" and had an unordinary act of excessive physical or mental tension, difficult exertion, or violent or overtaxing effort. The court found an unusual strain could occur from regular activity and does not require something distinguishable from and in addition to routine work. Claimant testified it took a lot of force to use a 35 to 40 pound shovel when she was precariously balanced. These facts support an act of physical tension or unusual strain to fracture her rib even though the employer argued the Commission muddled its findings of what is an injury and what is an accident.
The court relied upon White v Conagra, 2017 MO Lexis 585, for the proposition that the Commission does not commit reversible error if it can identify the key issue in the case if the accident was the prevailing factor in causing the injury, even when the commission fails to accurate identify the accident. Similarly, the court notes Young v Boone Electric Coop, 462 S.W.3d 783 (Mo. App. 2015) held an award can be supported by an accident from an unusual strain even though it is not an unexpected event.
Clamant fractured a rib in the course of her duties. Claimant had a lytic lesion which can cause bone weakness.
The court limited its discussion of facts to the narrow issue regarding the interpretation of accident and whether the Commission reached the right result even if it gave a wrong or insufficient reason for its ruling without mentioning the elephant in the room that the fight was over $84,000 in bills that far exceeded customary medical bills for a rib fracture because claimant had a rare malignant lesion that was treated at the same time.
2018 MO APP. LEXIS 56 SD 34826
January 25, 2018
The employer appealed on the narrow issue whether the claimant suffered an unexpected traumatic event or unusual strain when she was performing her regular duties stirring cheese and she heard a pop in her ribs. Employer claims the claimant must prove a traumatic event as a prerequisite to accident.The court of appeals finds substantial evidence to support the finding that claimant sustained an unusual strain by mixing cheese curds and proved she had an accident.
The Court noted 287.120.1 requires proof in a disputed accident whether claimant sustained an unexpected traumatic event or an unusual strain. The commission did not expressly identify what was the "accident" and what was the "injury" and the court felt it was "unduly restrictive" for the employer to infer the Commission meant the injury was only the "pop" as an "unexpected event."
The court noted the facts supported claimant sustained an "unusual strain" and had an unordinary act of excessive physical or mental tension, difficult exertion, or violent or overtaxing effort. The court found an unusual strain could occur from regular activity and does not require something distinguishable from and in addition to routine work. Claimant testified it took a lot of force to use a 35 to 40 pound shovel when she was precariously balanced. These facts support an act of physical tension or unusual strain to fracture her rib even though the employer argued the Commission muddled its findings of what is an injury and what is an accident.
The court relied upon White v Conagra, 2017 MO Lexis 585, for the proposition that the Commission does not commit reversible error if it can identify the key issue in the case if the accident was the prevailing factor in causing the injury, even when the commission fails to accurate identify the accident. Similarly, the court notes Young v Boone Electric Coop, 462 S.W.3d 783 (Mo. App. 2015) held an award can be supported by an accident from an unusual strain even though it is not an unexpected event.
Clamant fractured a rib in the course of her duties. Claimant had a lytic lesion which can cause bone weakness.
The court limited its discussion of facts to the narrow issue regarding the interpretation of accident and whether the Commission reached the right result even if it gave a wrong or insufficient reason for its ruling without mentioning the elephant in the room that the fight was over $84,000 in bills that far exceeded customary medical bills for a rib fracture because claimant had a rare malignant lesion that was treated at the same time.
Monday, January 29, 2018
Commission reprimands employer for deplorable conduct
Beard v Harley Davidson
2017 MOWCLR LEXIS 60 (Dec. 28, 2017)
The commission affirmed a temporary award for bilateral carpal tunnel for a woman employed 7 months and chastised the employer and its carrier Trumball Insurance for deplorable conduct in its defense.
The commission noted limits in statutory authority under 287.560 to sanction "methods and conduct" which it deemed deplorable in the context of a reasonable, but unsuccessful, defense. The defense relied upon a doctor who asserted claimant's condition was idiopathic.
The ALJ quoted the defense counsel in deposition stating: "bite me" and to "shut the hell up" and that the claimant "needed to understand plain English." The deposition inquires that counsel was "not doing okay" and "not controlling anger." The attorney responded: "Are you bleeding on the floor? I'm controlling my anger then."
The Commission finds "no place for name-calling and gratuitous comments of this nature in the profession of law."
The court discussed prior cases and notes the high burden to impose sanctions unless the refusal to provide benefits was egregious.
The ALJ had awarded costs and fees based on the unchallenged assertion of attorney's fees at $200 an hour.
ALJ Heffner
Iezzi (Boyd, Kenter for employee)
Experts: Rosenthal, Miller
2017 MOWCLR LEXIS 60 (Dec. 28, 2017)
The commission affirmed a temporary award for bilateral carpal tunnel for a woman employed 7 months and chastised the employer and its carrier Trumball Insurance for deplorable conduct in its defense.
The commission noted limits in statutory authority under 287.560 to sanction "methods and conduct" which it deemed deplorable in the context of a reasonable, but unsuccessful, defense. The defense relied upon a doctor who asserted claimant's condition was idiopathic.
The ALJ quoted the defense counsel in deposition stating: "bite me" and to "shut the hell up" and that the claimant "needed to understand plain English." The deposition inquires that counsel was "not doing okay" and "not controlling anger." The attorney responded: "Are you bleeding on the floor? I'm controlling my anger then."
The Commission finds "no place for name-calling and gratuitous comments of this nature in the profession of law."
The court discussed prior cases and notes the high burden to impose sanctions unless the refusal to provide benefits was egregious.
The ALJ had awarded costs and fees based on the unchallenged assertion of attorney's fees at $200 an hour.
ALJ Heffner
Iezzi (Boyd, Kenter for employee)
Experts: Rosenthal, Miller
Monday, January 15, 2018
PTD "demonstrated" and "certified" by reasonable inference of evidence
Moss v Treasurer of the State of MO
2018 MO App. Lexis 1663
Dec. 26, 2018
The Court rejects the alleged error that claimant failed to prove the statutory elements of 287.190.6(2) for a physician to certify and demonstrate disability and affirms the award of benefits against the fund for total disability. The court found the requirement to demonstrate and certify total disability can be determined through vocational opinion even if the opinion is supported by inference from medical opinion.
"The term "certify" means "to attest as being true or as meeting certain criteria." Certify, Black's Law Dictionary (10th ed. 2014). And "demonstrate" means "to show clearly . . . to prove or make clear by reasoning or evidence . . . to illustrate and explain especially with many examples,"
"The Commission concluded that § 287.190.6(2) "does not imply or mandate any requirement that a medical expert . . . specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied." The Commission further explained that analysis of the extent of disability involves evaluating issues such as job requirements and availability, transferrable skills, and retraining prospects; it also noted, "[i]n many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment." The Commission then did "as [they] have always done: consider the actual substance of the opinions from the testifying experts, weigh the persuasive value of those opinions, and then fulfill [its] fact-finding duty to determine the nature and extent of [the] employee's disability." After doing so, the Commission concluded that § 287.190.6(2)'s requirement to demonstrate and certify was satisfied."
"We reject the Fund's contention that a finding of permanent and total disability can be made in only cases where the employee presents an opinion from a physician specifically stating that the employee is unable to perform any work."
The court relied in part on expert opinion from the Fund's own vocational expert that claimant was unemployable in the open labor market.
Dennis Moss v Dept. of Corrections
DOLIR 1-10-2018
ALJ Miner
Atty: Kiefer, McCain
The Commission affirmed an award of total benefits against the second injury fund and rejected an argument that medical evidence which did not expressly state claimant was totally disabled did not certify or demonstrate an incapacity to work.
The claimant was awarded 32.5% of the shoulder following two shoulder surgeries including a replacement. Claimant testified that the surgeries did not alleviate his severe pain. The Commission noted it would have increased the PPD award if the finding had been appealed as claimant had no meaningful use of the arm because it became symptomatic with minor activities such as lifting a gallon of milk.
The ALJ found claimant established he was PTD against the Fund, and found sufficient and competent evidence to support the award.
The Fund argued that no physician "certified" or "demonstrated" total disability. The Commission rejected the argument:
"It would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the extent of an employee’s physical functioning by making findings on examination, rendering diagnoses as to the employee’s medical conditions, and identifying restrictions or recommendations as to the employee’s physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee’s physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases."
"While we agree that § 287.190.6(2) requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions—as well as decisions from administrative law judges and the Commission—be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker’s employability, cannot be supplemented (or refuted) by other, non-medical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record."
2018 MO App. Lexis 1663
Dec. 26, 2018
The Court rejects the alleged error that claimant failed to prove the statutory elements of 287.190.6(2) for a physician to certify and demonstrate disability and affirms the award of benefits against the fund for total disability. The court found the requirement to demonstrate and certify total disability can be determined through vocational opinion even if the opinion is supported by inference from medical opinion.
"The term "certify" means "to attest as being true or as meeting certain criteria." Certify, Black's Law Dictionary (10th ed. 2014). And "demonstrate" means "to show clearly . . . to prove or make clear by reasoning or evidence . . . to illustrate and explain especially with many examples,"
"The Commission concluded that § 287.190.6(2) "does not imply or mandate any requirement that a medical expert . . . specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied." The Commission further explained that analysis of the extent of disability involves evaluating issues such as job requirements and availability, transferrable skills, and retraining prospects; it also noted, "[i]n many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment." The Commission then did "as [they] have always done: consider the actual substance of the opinions from the testifying experts, weigh the persuasive value of those opinions, and then fulfill [its] fact-finding duty to determine the nature and extent of [the] employee's disability." After doing so, the Commission concluded that § 287.190.6(2)'s requirement to demonstrate and certify was satisfied."
"We reject the Fund's contention that a finding of permanent and total disability can be made in only cases where the employee presents an opinion from a physician specifically stating that the employee is unable to perform any work."
The court relied in part on expert opinion from the Fund's own vocational expert that claimant was unemployable in the open labor market.
Dennis Moss v Dept. of Corrections
DOLIR 1-10-2018
ALJ Miner
Atty: Kiefer, McCain
The Commission affirmed an award of total benefits against the second injury fund and rejected an argument that medical evidence which did not expressly state claimant was totally disabled did not certify or demonstrate an incapacity to work.
The claimant was awarded 32.5% of the shoulder following two shoulder surgeries including a replacement. Claimant testified that the surgeries did not alleviate his severe pain. The Commission noted it would have increased the PPD award if the finding had been appealed as claimant had no meaningful use of the arm because it became symptomatic with minor activities such as lifting a gallon of milk.
The ALJ found claimant established he was PTD against the Fund, and found sufficient and competent evidence to support the award.
The Fund argued that no physician "certified" or "demonstrated" total disability. The Commission rejected the argument:
"It would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the extent of an employee’s physical functioning by making findings on examination, rendering diagnoses as to the employee’s medical conditions, and identifying restrictions or recommendations as to the employee’s physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee’s physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases."
"While we agree that § 287.190.6(2) requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions—as well as decisions from administrative law judges and the Commission—be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker’s employability, cannot be supplemented (or refuted) by other, non-medical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record."
Commission notes lack of authority in case to dismiss Fund claim
Arthur Lewis v Cassens Transportation Co.
Jan 11, 2018
ALJ Hart
The Commission notes the ALJ lacked authority to "dismiss" a second injury fund claim as part of an award that denied a claim for benefits of a primary accident.
The Commission noted an ALJ had authority to dismiss only in limited circumstances:
The Commission ultimately affirmed the denial of benefits under the Fund claim based on a notice defense and that claimant cannot have a subsequent compensable claim if the first claim is not compensable.
Jan 11, 2018
ALJ Hart
The Commission notes the ALJ lacked authority to "dismiss" a second injury fund claim as part of an award that denied a claim for benefits of a primary accident.
The Commission noted an ALJ had authority to dismiss only in limited circumstances:
(1) upon an employee’s failure to prosecute the claim, pursuant to § 287.655; or (2) upon the voluntary motion of the employee prior to the introduction of evidence at a hearing, pursuant to 8 C.S.R. 50-2.010(12)(A). Additionally, an administrative law judge may strike pleadings and enter awards against any party who fails or refuses to comply with a lawful order of the Division of Workers’ Compensation, pursuant to § 287.650 RSMo.
The Commission ultimately affirmed the denial of benefits under the Fund claim based on a notice defense and that claimant cannot have a subsequent compensable claim if the first claim is not compensable.
Commission affirms SIF total with admonition to properly defining issues in dispute
Hood v City of Kansas City
ALJ Rebman - affirmed
Atty: Downing, Roberson, Colling
Experts: Koprivica, Drieling, Wheeler
Treater: Reintjes
DOLIR 1-10-2018
Claimant, 66, alleges he injured his neck and back from mopping 2 1/2 hours in his job a a stock clerk and the ALJ awarded 15% PPD with a PTD award against the Fund based on medical opinion of his expert, Dr. Koprivica.
The Commission rejected the Fund's argument that the new statutory standards applied, and found the pre-reform standard applied in the case because claimant's disability predated the effective date of reform. The fund's appeal was contrary to the holding in Gattenby, 516 S.W.3d 819 (Mo. App. 2017)
Claimant relied upon multiple prior comp settlements in part as his basis to prove up the extent of prior disability.
The Commission noted the ALJ resolved the case by finding the claimant's expert more credible on the issue of causation, No party identified causation as a disputed issue.
"The parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed and resolved a third question that was not expressly identified for trial."
"nor has any party suggested the administrative law judge’s award is deficient for failure to consider or resolve either of the aforementioned statutory tests under §§ 287.020 or 287.020.3(2). We infer from these circumstances that employer and the Second Injury Fund effectively agree that those statutory tests, to the extent that they may have been implicated in this claim, are satisfied. For this reason, we will not further explore the issue whether the administrative law judge appropriately resolved the relevant issues, or exceeded his authority by delving into an issue that was not specifically identified.
We would, however, take this opportunity to remind the parties as to the critical importance of obtaining a statement of the particular issues in dispute that is not only complete, but precise in terms of the specific statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."
The Commission noted the parties incorrectly asked whether claimant had an accident arising out of and in the scope of his employment when the correct inquiry was whether there was an injury arising out of employment. It noted the phrase "scope" was not within the statutory definitions.
ALJ Rebman - affirmed
Atty: Downing, Roberson, Colling
Experts: Koprivica, Drieling, Wheeler
Treater: Reintjes
DOLIR 1-10-2018
Claimant, 66, alleges he injured his neck and back from mopping 2 1/2 hours in his job a a stock clerk and the ALJ awarded 15% PPD with a PTD award against the Fund based on medical opinion of his expert, Dr. Koprivica.
The Commission rejected the Fund's argument that the new statutory standards applied, and found the pre-reform standard applied in the case because claimant's disability predated the effective date of reform. The fund's appeal was contrary to the holding in Gattenby, 516 S.W.3d 819 (Mo. App. 2017)
Claimant relied upon multiple prior comp settlements in part as his basis to prove up the extent of prior disability.
The Commission noted the ALJ resolved the case by finding the claimant's expert more credible on the issue of causation, No party identified causation as a disputed issue.
"The parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed and resolved a third question that was not expressly identified for trial."
"nor has any party suggested the administrative law judge’s award is deficient for failure to consider or resolve either of the aforementioned statutory tests under §§ 287.020 or 287.020.3(2). We infer from these circumstances that employer and the Second Injury Fund effectively agree that those statutory tests, to the extent that they may have been implicated in this claim, are satisfied. For this reason, we will not further explore the issue whether the administrative law judge appropriately resolved the relevant issues, or exceeded his authority by delving into an issue that was not specifically identified.
We would, however, take this opportunity to remind the parties as to the critical importance of obtaining a statement of the particular issues in dispute that is not only complete, but precise in terms of the specific statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."
The Commission noted the parties incorrectly asked whether claimant had an accident arising out of and in the scope of his employment when the correct inquiry was whether there was an injury arising out of employment. It noted the phrase "scope" was not within the statutory definitions.
Wednesday, January 3, 2018
Proposed new comp reform seeks to close St. Louis Division office.
House Bill 1693, introduced by representative DeGroot, seeks to change 17 provisions of the workers compensation act.
Among the proposals
abolish the additional benefits for toxic torts.
eliminate the reactivation provision to allow claims to be re-opened for various reasons related to prosthetics and life threatening procedure
Redefine prevailing factor to compare occupational causes compared to all non-occupational combined rather than a single non-occupational factor
eliminate one criteria for finding recreational activities compensable when the employee is paid wages or travel expenses.
Restore subrogation rights of employers in wrongful death claims from toxic exposure
Requires all parties to be "automatically retained" on any appeal
Allow review of temporary awards by an appellate court when the employer disputes all liability
Caps the cost for prosecution or defense on unreasonable ground based on the costs paid by the employer to defend the claim.
Bars admission in a civil court in a claim of discrimination under 287.780 that the employer sought a resignation as a condition of settlement.
These changes may have profound effects on employees obtaining current benefits under the Act.
Will it pass? Who knows. One might not easily dismiss what can happen or not happen in the capital.
But let's talk about something even more important. DeGroot wants to move the city office of the Division so he can have a new Division in his own district in Chesterfield.
Section 287.640 deletes the current statutory requirement to keep an office in St. Louis and instead adds a new office in Chesterfield.
Section 287.640 indicates the Division gets 7 offices and 2 optional offices. The seven offices are currently designated as the state capital, St. Louis, St. Joseph, Cape Girardeau, Joplin, Springfield, and Kansas City.
It is unclear why no one in the legislature seems to know the "state capital" is Jefferson City, and refers to it on as "state capital" while identifying the other cities. That may be the topic for another column. This may be part of deep government to have a secret state capital somewhere else like the governor's basement.
The bill allows the Division discretion to add other offices "in such other places, not to exceed two, as the division deems necessary for the efficient disposition of the business of the division."
The bill if passed means there must be a new office in Chesterfield, and that the office in the city of St. Louis is no longer required but optional under the two option policy. The Division already exercised its two optional offices and maintains an optional office in Columbia and has cases now in a re-opened office in St. Charles. So one of those must go away or the bill change to add the number of options.
The Division always could have opened its own office in Chesterfield if it wanted to, but clearly a house representative knows their needs better than they do.
So long St. Louis city division. We hardly knew you.
One might dismiss DeGroot as a troll.
The provision is buried deep in the bill, page 23, so it is probably not click bait but a secret sleeper provision like half the things in the new tax code. "Was that in there? How was I to know that? It's a really thick bill."
This maybe is payback to the loyal 14,000 republicans in the 101st who put him in office by new construction and new state funded jobs. This is just what drain the swamp voters want when they clamor and holler for smaller government for everyone else.
Why not give his supporters the best like a new Division with fresh paint with that new state building smell?
But the bill would mean city people might have to travel to the county for court appearances. Remember the great debate when highway 40 was demolished whether or not it might be a good idea to extend a Metrolink out to the county since the highway was already a pile of dirt. Train people? In Chesterfield? Oh my!
Everyone knows how people in Chesterfield have to rough it with their long commutes to nice safe neighborhoods and good schools. It must be exhausting! It is about time they deserve a break today so they don't have to drive into an urban environment like St. Louis city and get confused by the new credit card parking meters and risk inter-acting with the bottom 99%.
If the bill has a disparate impact to move the Division from the city to far west county, that is a small price to pay for the happiness of Chesterfield. People who live in St. Louis city and rely on public transportation to get to court can just not get injured at work.
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