Commission finds no SIF total with prior 43% BAW disability

Robert Cantrell v Spire  (sif only)

Release Date:  9 15 2021

Venue:  Cass County

Summary:  Commission reverses an award of PTD against SIF for a primary shoulder injury (20%) based on 43% BAW prior combo settlement when the award also considered of other orthopedic and psychological conditions. The commission found reversible error by consideration of non-qualifying conditions in a determination of fund liability and not due to combination solely from prior accident at 43% BAW.  

The Commission denied the request for additional evidence for the experts to address exactly that point, whether the 43% BAW alone with the primary would constitute PTD.  The Commission declined and noted the claimant "could have" solicited alternate conclusions about liability with the exercise of reasonable diligence rather than relying upon Parker case, which was on appeal at the time.  

A dissent would have affirmed the PTD award and regarded consideration of nonqualifying conditions was not erroneous. 

Inj  No.  18-019636

Cast

Rebman 

Perkins

Hinson (sif)

McCabe

Schmidt

Rosenthal

Cordray

Notes

Claimant's attempts to return to work were reportedly foiled in part when a camera installed by his employer and triggered his prior PTSD/anxiety.

The Commission noted it would have regarded a prior 43% BAW settlement to qualify even when it was "combined" multiple conditions (scheduled and unscheduled) when it divided the total weeks of disability  by the number of body parts listed on the settlement and each would separately trigger the minimum threshold.  

Employer found total liability on "second to last" accident

William Watson v Tuthill Corporation

Release Date: Sept. 13, 2021  (April 2015)

Venue:  Greene County

Summary:  Commission affirms PTD for back injury from a senior service technician resulting from a single level lumbar fusion. He described a failed return to work after surgery and then reported a new neck injury.  The employer was unable to accommodate claimant and his expert recommended onerous work restrictions.  

The case is unusual as claimant returned to work and then had a subsequent 2016 accident.  The court found that this did not preclude a finding that he was totally disabled from the 2015 accident because after the 2016 he was employed but not working in a capacity that would allow him to work in the open labor market, in effect, not 'really' working and was not at MMI.  Even though the 2016 was the "last accident" chronologically it was not a "last accident" for purposes to assess fund liability.  Claimant was already totally disabled so the vocational impact of any new injury was irrelevant to his capacity to work and the fact that he was working did not preclude a finding that he was unemployable.   

Cast: 

Mahon, ALJ 

Vasquez

Sparlin

Bang

Koprivica PTD failed back syndrome

Eldred

Woodward 16%

Sprecker

Belz

Comments:  The ALJ refers to claimant in glowing praise that he was a "loyal employee" and "toiled" at his job for 28 years and went on work trips to South Africa but had to stand in the plane because of pain.     

Claimant PTD from prior conditions fails to trigger fund requirements

Wesley Davis v Lazer Spot Inc.

Release Date:   9/13/2021 (Accident Aug. 2014)

Venue:  Cole County

Summary:  Claimant appeals a denial of PTD benefits against the second injury fund. The Commission affirms.  The ALJ found experts credible that claimant was PTD due to the 2014 low back, the prior knee and the prior low back, that the prior back aggravated the current back claim, but claimant failed to satisfy the requirements of 287.220.3(2)  that disability flows from a single qualifying pre-existing disability, when the prior knee lacked sufficient level of disability to qualify under the statute. 

The Commission noted the prior qualifying disability does not have to be known,  it does not have to be at MMI, but it fails to trigger liability when there was no testimony that the knee or knees aggravated or accelerated the primary injury.  A dissent found consideration of non-qualifying disabilities did not preclude a finding that SIF owed for claimant's PTD.

Inj. 14-063032

Cast

Fisher, ALJ 

Volarich

Weimholt

Bernardi

What's it worth?  

20% CLSS back (revision of prior surgical fusion). 

Failure in burden of production when SIF claim incorporated nonqualifying prior conditions

Ray Ingles v Corrigan Bros.

Release Date:  8 18 2021  (Aug 2014)

Venue:  Callaway County

Summary:  Commission affirms denial of PTD benefits against the SIF when expert opinion exclusively relied upon qualifying and non-qualifying medical conditions.  A dissent regarded consideration by experts of non-qualifying disabilities was not reversible error.  ALJ Farmer further noted claimant failed to show PTD from a "single" pre-existing disability and opined he was "constrained" by the statute as it was "currently construed."  The Commission noted a lack of evidence that the prior aggravated or accelerated the disability based on the statute.  

14-102499

Cast

Viet

Donner

Volarich

Cordray

SIF liability not found for total hearing loss without evidence to show it meets SIF statutory categories

 Robert Schebaum v ABB Holdings

Released:  8-10-2021 (accident Jan 2014)

Venue:  Cole County

Plot summary:  Commission in 2-1 decision affirms denial of PTD against then fund for failure of proof of statutory requirements of 287.220.3(2) for bilateral knees and hearing loss when he was working 70 hours a week prior to primary 

The Commission found expert opinion on  PTD relied upon nonqualifying total hearing loss that did not fall within one of the four qualifying subcategories:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or (ii) A direct result of a compensable injury as defined in section 287.020; or (iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or (iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury ....

It appears Eldred later attempted to modify opinion that PTD was due to knees alone.  ALJ found Eldred not persuasive by live testimony of PTD from knee injuries alone when prior opinion found claimant's hearing loss a combining factor in PTD.  Knees were found 25% and 45% disabled with 100% hearing loss (180 weeks) as part of a global disability presentation.  

Cast:

Fischer, ALJ

Snyder

Koprivica

Eldred

Commission finds back injury is an "opposite extremity" to support SIF total award.

 Brenda Comer v Central Programs 

Date:  8 11 2021  (Nov. 2016 accident date)

Venue:  Harrison County 

Summary:  SIF appeals PTD claim.   Commission affirms.  

16-085212

SIF argues prior hip (non-occupational) medical condition did not qualify under 287.220.3 and asserts a hip was not an opposite extremity for the primary back (400 week) injury and that any PTD was last accident alone based on lay opinion about symptoms (with no supporting expert opinion).  

The Commission found expert opinion that the primary back condition caused right leg symptoms to be regarded as opposite extremity to the prior left leg/hip condition and uncontroverted medical opinion to show substantial aggravation to qualify under the statute:

"[Employee’s] preexisting leg pain has combined with the current radicular symptoms to create a more significant disability than either considered in isolation. Further, Ms. Comer testified that the limp she has had since the 1987 injury has gotten worse and more painful since November 1, 2016. Her back and left hip hurt in conjunction with each other, which is why Dr. Koprivica opined her back pain is worse than it would have been if she did not have left hip pain and an altered gait. The hip shattered in the 1987 injury is directly adjacent to the lumbar spine where the 2016 work injury occurred. Thus, this is not an unrelated accident location but one that actively aggravates the subsequent work injury in numerous ways."  (emphasis added).

The ALJ denied future medical and noted claimant was unable to distinguish pain management needs attributable to the accident given her prior chronic pain. 

Cast:

Asbridge, ALJ 

Nordyke, atty

Levine, B atty

Cole, Candace, atty

Grace, Ashley, atty 

Koprivica

Bailey 

Reversible error to award fund total on cumulative prior BAW settlement

 Walter Adams v Jim Hawk Truck Trailers

Release Date:  Aug 18, 2021

Venue:  Clay County

Plot Summary:  SIF appeals PTD award in which the Commission reverses in a 2-1 decision and disqualified a prior settlement of 15% BAW which failed to allocate disability separately to either the back or bilateral knees and was considered as a basis for a SIF award. No expert indicated claimant would be PTD independent of consideration of the earlier "cumulative" 15% prior.  

Inj. No.  15-073485

Cast:

Siedlik, ALJ 

Doyle, atty 

Pritchard, atty 

Fournier, atty 

Cordray