Court finds 18 years of inactivity was a failure to prosecute

Hager v Treasurer of Mo.

Release Date:  Nov. 24, 2020  (Accident date Sept. 1997)

Venue:  Eastern

Plot Summary:  Court of appeals affirms a dismissal of a case for failure to prosecute after nearly 18 years when no steps were identified how claimant attempted to move his case forward.   Claimant's counsel sought to set aside the dismissal of the claim against the second injury fund and asserts he had hired an investigator to locate his missing client but did not identify any results. 

The commission found a hearing was not required in every case to set aside a motion to dismiss when the motion to set aside includes alleged facts, even if true, would still ail to support good cause to set aside the dismissal.  The court found good cause to dismiss when the claimant failed to keep in contact with the Division to update his address and to remain in contact with his attorney.

ED 108950

Cast:

Gardner, Hon. 

Gilkerson, atty

Toepke, atty 

Commission finds failure to prove back strain injury caused need for surgery

 William Beavers v St. Johns Mercy Hospital

Release Date:  Nov. 16, 2020  (D/A Dec. 2007) 

Venue:  St. Louis County

Plot Summary:  

The Commission 2-1 affirms a 12.5% award for a back strain and denies benefits related to a subsequent disputed surgery.

The ALJ notes the parties agreed claimant had a back injury handling a patient but disagreed on most other issues and the relationship of claimant's back surgery to the original accident.  The ALJ found claimant established he had a low back strain but failed to prove the accident caused or aggravated a prior disc condition to cause the need for disectomy noting the more persuasive testimony of a back surgeon and inconsistencies in claimant's testimony.  The ALJ denied compensation for medicla bills  of  $161,268 related to a disputed back surgery following claimant's release by Dr. Cantrell. A dissenting Commissioner would have found total based on last accident alone.  

07-12351911

Cast:

Ottenad, ALJ 

Edelman, atty

Archer, atty

Sandberg, atty

Poetz

Weimholt

Cantell

Coyle

England

Comments:

The ALJ allowed the employer to amend its answer to include a post injury misconduct defense to TTD on the date of the hearing, over objection, when the issue had been raised in previous court proceedings. The ALJ found claimant was disqualified from TTD due to post-injury misconduct related to the use of profane, abusive insulting or threatening language.  

The ALJ noted the PTD claim fails because it was predicated on finding claimant's surgery to be related. The ALJ awards 22.5 weeks against the Fund.  

The ALJ notes "unfortunate" exchanges between the attorneys during an evidentiary deposition  "where the attorneys simply traded barbs, argued and insulted each other" and found a judge would not "have tolerated" such conduct but allowed the "commentary and behavior of the attorneys" as part of the record.  

Commission rejects Fund total on failure to show aggravation

 Thomas Dubuc v OTG (Settled)

Release Date:  Nov. 16, 2020

Venue:  Western District,  15-087903

Plot Summary:  On remand, the Court of Appeals reversed a finding of PTD and ordered the Commission to apply 287.330.3 to the facts.  The Commission granted the parties the right to submit briefs but found the remand  to "apply the law to the facts" did not permit the petitioner to offer new evidence.  

Discussion:  The Commission now finds claimant's testimony about prior hernia repairs, without treating records, fails to satisfy the statutory requirement that a qualifying condition is "medically documented." The Division found claimant failed to show a genetic mutation (Factor V Lieden) is a qualifying condition which "aggravated or accelerated" the work condition.  It found "generic" language by the expert about aggravation failed in the burden of persuasion.  A majority added dicta ("not the basis of this award") to opine that employee over-relied on Second Injury Fund v Parker, WD 83030,  which is on appeal, for the proposition the statute allowed consideration of multiple conditions and contends the controlling rule is combination of the primary with a single prior qualifying condition.  The Commission previously concluded the two pre-existing conditions both represented 25% BAW PPD each. 

The dissent felt evidence supported "previously documented" conditions and demonstrated aggravation, noting the potential for surgical complication of DVT.  The dissent notes the majority's factual findings "defy common sense" and violates the "spirit of the law" to deny benefits to workers with "complex" medical histories.  The dissent would have allowed additional evidence due a change in law "mid-stream" but felt evidence in the record supported an award of total against the Fund.  

Commission reverses Fund total based on multifarious claim

Arthur Antilla v Dyno Nobel

Release Date:  Aug 4, 2020 (Accident Date Jan 3, 2014)

Venue:  Kansas City/Joplin

Plot Summary:  

The Commission reverses a PTD award of benefits based on failure to prove pre-existing qualifying conditions. 

Cast

Fisher

Pitts, Atty 

Mobeg, Atty

Bang, Atty

Paul

Eldred

Hughes

Comments:  Claimant, 68,  alleges occupational disease and accident arising on the same date and settled for the employer for neck disability apportioned between two claims for accident and occupational disease under a single injury number.   The ALJ accepted expert opinion that any disability was due to a "combo" effect.  The vocational expert identified the total as a last accident alone.  Claimant alleged he had symptoms leading up the accident from driving on rough roads but denies they impacted any capacity to work.  

The Commission found claimant's prior medical conditions did not qualify under 287.220.3. 

"We further note that we are not convinced by the evidence that the occupational disease as described by Dr. Paul was a preexisting condition shown to be at maximum medical improvement on the day of the primary Injury. An occupational disease does not become a compensable injury until the disease causes disability. Such disability would exist where it is shown to affect the employee's ability to perform ordinary tasks or his earning capacity. Garrone v. Treasurer of State, 157 S.W. 3d 237,242 (Mo.App. E.D. 2004). Employee's clear testimony was that he was not inhibited from doing his work or other activities prior to the January 3, 2014 traumatic injury to his neck and left arm. Employee's vocational rehabilitation expert also confirmed this. However, a finding on this issue is not necessary to our conclusion that Fund liability has not been established." 

Both parties had stipulated to compensable occupational disease and accident despite conflicting medical opinions whether claimant's findings in the spine were degenerative or traumatic from repetitive exposure. The Commission noted:  "we believe the judge was in error in finding that both injuries were properly plead under one injury claim "via an amended claim."

"Where no provision gives "permission" to give effect to an action, its absence requires us to conclude that the legislature did not intend for such expansive use of the claim filing process. While we understand the notion that administrative proceedings should not unduly burden the parties with meaningless procedural formalities, the circumstances here show good reason why the statute does not expressly allow multiple injury claims to be filed within one claim. The record is unclear and inconsistent on employee's theory on two points: (1) whether these are two distinct primary injuries both of which stem from work with this employer as the prevailing factor and (2) what is the claimed preexisting disability. Clarity in these respects is essential to determine Fund liability. The approach taken by the administrative judge created confusion as to the relationship between primary and preexisting disabilities, which is the pivotal point of analysis in Second Injury Fund claims.6 As the Fund notes in its brief, the May 2016 amended claim filed by employee suggests an additional mechanism of injury but does not suggest it is a preexisting disability for Fund liability. The approach taken by the administrative law judge to find two injuries in one claim and then convert one of those injuries to a preexisting condition further confusion and inserted uncertainty into the theories for defense by the opposing parties. In certain circumstances, this practice could potentially raise a question of adequate notice to the parties that may give rise to due process issues. Extending this practice to the extreme could result in an omnibus approach to claim filing, including all conceivable descriptions of injuries wrapped into one claim, such that five, ten, fifteen, or more loosely related injuries could be wrapped together as one claim. The danger of allowing such expansive pleading practice raises obvious concerns for the clear delineation of issues for the defending party, as well as for the reviewing tribunal." 

 

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