Court finds last accident alone supported a total from back surgery despite profound pre-existing disabilities

 Roy Franklin v Mitchell Mill Systems

Release Date:  Oct 22, 2020  (April 2014)

Venue:  Joplin

Plot Summary:  Commission reverses a PTD award against the Fund and finds the employer liable for PTD after a back surgery "redo" based on the nature of restrictions after the  last surgery and found it unnecessary to consider whether .2 or .3 applied to assess Fund liability.  

14-2567810  

Cast:

Fischer, ALJ

Koprivica

Shakhan

Eldred

Comments:  The doctors did not dispute claimant developed injury by occupational disease to his back from repetitive activities associated with his job as a welder which was treated with a "re-do" of a prior microdiscectomy.  Claimant reports the surgery failed to alleviate his symptoms and he never returned to work.  The ALJ noted claimant was PTD due to a "combo" based on a "profound" degree of pre-existing disability including, among other things, surgery to the same disc level, shoulders, wrists, and knee. 

No party disputed on appeal that claimant was PTD.  

Court affirms denial of mental stress claim

 Steven Shipley v State of MO

Release Date:  Oct 27, 2020 

Venue:  Southern District

Plot Summary:  Maintenance supervisor at a state prison alleges  mental injuries ("nervous breakdown" ) from job duties but he fails to show his work was extraordinary or unusual or that a subsequent heart attack was related.

Inj. No.  SD 36643, 2020 MO APP LEXIS 1344 

Cast

Scott, J.

Moroni

Schmidtt

Comments:  The court noted claimant worked from 2001-2010 until he resigned.  He had a history of conflicts with peers, supervisors and vendors.   The court noted 14 witnesses.  The Commission affirmed the denial 2-1 without any opinion on the merits.  The court noted a failure in proof of extraordinary stress compared to same or similar employees under Mantia standard. There was no need for evidence to support a denial when the claimant failed to meet his burden of proof.  

ALJ awards limited PPD on finding that claimant's testimony is not credible

 Bobby Knight v Fedex Ground

Release Date:  Oct 21, 2020  (May 2015)

Venue:  St. Louis

Plot Summary:  The 2-1 Commission affirms limited PPD awards of 4% each for two separate back "strain" cases.  A dissenting commissioner, incredulously, would have awarded 35% for strains based on the rating of claimant's expert.

https://labor.mo.gov/sites/labor/files/decisions_wc/KnightBobby1503703110-21-20.pdf

Cast

Keaveny, ALJ

Cordes

Brown

Woiteshek

Mirkin

Cantrell

No statutory authority to allow a credit for a "no show" fee

 Jonathan Mirfashihi v Honeywell Federal Mfg.

Release Date:  Oct 7, 2020

Venue:  Jackson

Plot Summary:   Commission affirms 10% hand for a surgically treated trigger finger and rejected a causation defense of OA.  The court  rejected "credit" for missed doctor's appointment and no show fee of $1800  based on the lack of statutory authority. Claimant was out of the country and "at fault" to miss the appointment. 

17-04638310

Cast

Fowler, ALJ

Mirfashini, atty

Walsh, atty

Neighbor

Walker

Commission awards medical bills to rule out heart attack

 Thomas Runyan v Woodbridge Corporation

Release Date:  Nov. 6, 2020 (Accident date Feb 5, 2015)

Venue:  St. Charles 

Plot Summary:  A 65-year old retired employee with a prior heart attack  reports acute chest pain in an admitted accident when he felt a pop in his chest at work.  Claimant underwent a cardiac work-up and he was diagnosed with costochondritis.  The Commission in a 2-1 decision affirms an award of  12.5% BAW PPD  plus medical bills of $8788  to "rule out" a heart condition.  A dissent felt the PPD was excessive for an essentially untreated condition and the "cardiac" bills did not flow from any compensable medical condition.   

15-03686811

Cast

Landolt, ALJ

Beatty

Lemp

Volarich

Wayne

Commission affirms PTD for back fusion

 Gary Fuwell v Mo Dept. of Corrections

Release Date:  Aug 10, 2020 (Accident date Nov. 21, 2013)

Venue:  Texas County

Plot Summary:  The Commission affirms a PTD award against the employer for a back injury and single level fusion caused by a fall down some steps in a prison. 

https://labor.mo.gov/sites/labor/files/decisions_wc/FuwellGary13-08719808-10-20.pdf

Cast: 

Mahon, J

Spear, atty

Harris, atty

Rhoades, atty

Robson - 15%

Volarich

Eldred

Koprivica

Hughes

Boutwell

Comments:  Claimant, 62, received a temporary award including a back fusion and is awarded PTD in a final award.   Dr. Volarich concluded he was "last accident alone" despite prior neck surgery and prior back disability and "may" need treatment in the future due to hardware, and had to "rest" as needed.  Vocational opinion indicated claimant's use of narcotics and lack of employment for 3 years were toxic to his ability to compete for work.  Hughes felt he was unemployable due to "appearance" and "pace and performance" but not due to last accident alone.

ALJ Mahon found claimant was "compelling" in his testimony about the result of "violently" falling down some stairs, and followed Dr. Volarich's conclusion of "last accident alone" despite "significant" pre-existing disabilities which caused him to miss "a few weeks" each year.   She notes claimant takes daily trazadone and likely developed severe adjacent level stenosis from "stress."  

What's it Worth?  

PTD  

Commission faces off with court of appeals on narrow reading of SIF statute

 Jody Sneed v Walmart  (sif only)

Release date:  Aug 4, 2020 (Accident date Jan 2017)

Venue:  Greene County

Plot Summary:   A majority of the commission reverses an award of total benefits against the Second Injury Fund based on its own interpretation of 287.220, which it admits is at odds with the court of appeals.

https://labor.mo.gov/sites/labor/files/decisions_wc/SneedJody17-03549908-04-20.pdf

Cast

Elmer, ALJ, 

Mullins

Eldred

Comment:  

The majority concludes the SIF statute which refers to pre-existing "injury" includes only injury by accident and not injury by occupational disease, and the consideration of prior injuries from repetitive trauma were improper.  The majority felt it was reversible to consider pre-existing conditions that did not meet the 50 week threshold, even though the threshold had been satisfied by other qualifying condition.  The majority includes PTD must be established with "a" single prior condition and not multiple prior qualifying conditions.

Claimant's primary injury involved a 20% settlement and she sought benefits for prior hip replacements and prior degenerative disc disease.  

"We acknowledge that a majority of the Missouri Court of Appeals, Western District, recently filed an opinion, not yet final, that is at odds with our interpretation of § 287.220.3(2)(a)b. See Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan ParkerWD83030 (July 14, 2020). One member of the three judge division that decided the case challenged the majority's interpretation in a strongly written dissenting opinion. For the reasons stated above, we fundamentally disagree with the Western District majority's recent interpretation of§ 287.220.3(2)(a)b. We instead find that the express language of§ 287.220.3(2)(a)b requires that an employee prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test."

It is not clear why the majority would pivot on the issue that the court of appeals decision wasn't final as a basis to bypass the concept of stare decisis.