Court affirms summary judgment for defendant using statutory employment defense.

 Robby Sebacher v Midland Paper Company

Release date:  Oct 13, 2020

Venue:  Eastern District

Plot Summary:  Court of appeals affirms dismissal of negligence claim on defense that defendant Midland is a statutory employee.

ED 108615

Cast

Gardner, Hon.

Discussion:

Midland employee allegedly assault Plaintiff.  Plaintiff sued in negligence claim.  Midland runs a series of warehouses who contract out independent contractors to deliver Midland products.  In this case, the contractor was CRH Transportation.  Plaintiff was employed by CRH pursuant to Midland contract.  Midland handled supervision and training daily of drivers and required 40 hour minimum.  Plaintiff was assaulted by Midland employee and sued Midland for failure to train and supervise assailant.  

The issue was whether plaintiff was performing work within the usual course of Midland's business.  Plaintiff alleged the determination of the usual business is based on the specific location and in this case the usual business at that location did not include delivery because it never used its own employees at that location.  Plaintiff did not contest the statement in the motion that the defendant had multiple options of delivery including contacting with transportation companies.  

The court found the fact that deliveries were used by independent employees rather than its own employees at that location did not change the usual business at the warehouse.  It found picking up products from a distributor to deliver them for the distributor was the usual business.  

Commission affirms temporary award for neck fusion

 Edward Burns v Assoc., Elect Coop.

Release Date:  Oct 27, 2020 (D/A  11/29/2017)

Venue:  New Madrid County

Plot Summary:  The Commission affirmed a temporary award. Claimant slipped off a cart and jerked his left arm and neck. Claimant reported temporary relief after two injections but was told by the employer designated doctor he had no other plan of treatment for his symptoms  Claimant denied prior symptoms and he was told by Dr. Robson that he needed a fusion.  Electrodiagnostic studies were inconclusive for nerve entrapment. Claimant denied prior chiropractic care for the neck.  The Division excluded some supplemental exhibits under hearsay objection.  

17-09189210

Cast:

Tilley, ALJ

Taylor, Atty

Horton, Atty

Robson, Dr. 

Bernardi

Doll

Commission finds "new" injury to back to reverse denial of Fund award

 Brenda Dubose v Prairie Farms

Release Date:  10-20-2020  (March 9, 2017 accident date)

Venue:  St. Louis

Plot Summary:  Claimant alleges back injuries from pulling a stack of milk crates and seeks benefits against the second injury fund. She asserts she retired early due to work environment changes after new management provided fewer accommodations related to her chronic back pain.  Her expert assessed disability for prior back, knee, and wrists.  The ALJ found no evidence of a "new" trauma to the back, and denied fund liability. The Commission in a 2-1 decision reversed the denial and awarded 57.15 weeks of benefits against the Fund.  

Cast

ALJ Schaefer

Merlin, atty

Cunningham, atty 

Berkin

Dolan

Petkovich

Hughes 

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