ALJ finds claimant bound by below threshold settlement agreement

 John Carroll v Byrne & Jones Enterprises, Inc. 

Inj. No.  21-0587999 (D/A May 2021)

Venue: St. Louis County (Tilley, ALJ)

Issue Date 5 30 2024

The Commission affirmed a denial of SIF benefits on a failure to show prior disablities that reached threshold levels.

The ALJ noted multile reasons.  Claimant could not challenge the amount of prior disaiblity which  he agreed n a prior settlement (below theshold) by obtaning an expert opinion rating disaiblity at a higher level (above theshold).  The ALJ also noted Dr. Volarich's opinions about "exacerbation" were evolving over several of his reports, and did not correspond with claimant's actual testimony but originalted with the expert how a knee condition affects a hand condition.  

The ALJ sustained a fund objection to admitting noncertified records relied upon by experts, presumably for the truth of the matter asserted. the ALJ notes such records may be admissible under 287.210.7 if the expert's reports had been submitted by a 60 day motion.  The ALJ excluded unemployment records under a relevance objection when rate was an admitted issue.  

The beat goes on with highway worker's mental claim after 8 years

 Linda Mantia v Mo Dept of Transportation

Inj. No.  08-096313    2024 MO WCLR LEXIS 21

D/A  May 30, 2008

ALJ Carlisle

Atty:  Swaney

Experts:  Jovick, Stillings 

The Commission reverses the ALJ finding that claimant failed to prove "extraordinary " stress compared  to a "reasonable" highway worker, and awards 50% BAW ( $77,000 in benefits) for depression  with open medical after a series of multiple appeals since the 2015 award.  

The  claimant introduced additonal evidence on a remand hearing and the commisison concluded claimant had more exposures (quantity, approx. 1000 accidents) over a 29 year career and uniquely stessful exposures to 'carnage, death and tragedy'  (quality), as comporable employees rarely encountered fatalities.  The Commisison noted the correct analytic focus was not whether the profession was stressful but whether the actual events experienced by the claimant were of such a nature to cause extraordnary stress within a reasonable person within the profession.  

An appeal was subsequently  filed with the Court of Appeals on July 1 (ED 112845).  

Salvage attempts at 10 year old PTD claim lost by flipping opinion

 Russell Locascio v Groendyke Transport Inc.

Inj. No.  14-104642     2024 MO WCLR LEXIS 18, 19 

Venue: Jackson County  (Cain, ALJ)

Experts:  Stuckmeyer, Cordray,Drieling,  Lenarz

Release Date:  May 30 2024 (2014 accident date) 

Atty: Mason, Friedman 

The Commisson modifes an award of PTD for last accident alone from a shoulder injury to an award of 35% PPD of the shoulder  with a 3x operated shoulder while affirming open medical (based on finding of possible need for reverse total shoulder). 

The ALJ noted that claimant changed the theory of the recovery of the 2014 accident to comply with a Cosby analysis and retook expert depos.The ALJ relied upon vocational opinion that claimant's "need" to remain recumbent due to symptoms of last accident alone rendered him unable to work.     An expert  concluded any PTD was last accident alone 6 years after the accident, after 3 earlier reports indicated the last accident caused only a partial disablity.  The commisson foudn the expert lacked crediblity for flipping.  The commission also concluded crediblity of the vocational expert "tainted" by lack of analytic consistency.  

Commission takes away PTD award and finds "credible" expert is not credible after all

 David Wilson v Robertson County Fire Protection District (Fund only )

Inj. No.  16-051959, 15-004493

Release Date: Aug 6, 2024 

Venue:  St. Louis County (Mitten, ALJ)

Atty:  Barry, Kincade

Experts:  Volarich, Gonzalez, Hughes (for Fund)

The claimant, a 66 year old firefighter, strained his low back and settled the case for 13%.  He had prior settlements of 25% of the ankle and 25% of the knee.  The ALJ found three prior conditions, two of which met threshold.  The Commisison address two issues:  whether the ALJ found the experts did not rely upon the non-qualifying conditon and whether plaintiff's experts were credible..

The commisison finds the SIF did not appeal the issue regarding inclusion of the knee but the Commisison found it had been included in the PTD determination  (when the ALJ said it wasn't) as reversible error to take away the award.. 

So what is going on, here?   SIF liability must be based on qualifying prior conditions.  A prior conditon that does not qualify does not add or subtract from that liability, unless the prior is considered as a reason why the claimant cannot work.  In this case, the judge stated she didn't consider it as part of the reason for SIF liaiblity. The Commission disagreed and stated it was part of the conclusion, noting the rating and extensive restrictons provided by claimant's expert for a non-qualifying disability. 

Another important lesson is that finding credibility is not a final word and can be readdressed by the Commisison.    It found the concluson of "credibility" of claimant's  experts was not supported due to multiple contradictions between the facts and facts relied upon by the experts,  noting  a toxic  need to lie down or concentration problems, not present in other evidence or testimony. 

The case is an unusual departure to attack a finding of crediblity by the ALJ , when there  were material inconsistnecies n the material facts relied upon.  

SIF claim doomed by lack of prior records

 Jeffrey Wetzel v GM Johnson

Issue Date:  July 16, 2024  

Inj. No.  18-021613   , 2024 MO WCLR LEXIS  26

Venue:  Carol County (Rebman, ALJ) 

The Commission reversed an award of PTD benefits against the second injury fund, and finds a failure of proof that claimant produced a medically qualified pre-existing disability.  Claimant relied upon his self-reported history of a prior back injury, a prior 17% settlement, and an expert who rated the prior settlement. The Commission noted that claimant offered no prior treating records and the expert,Dr. Volarich,  asked for but did not receive prior treating records.  Claimant settled the primary crush injury for $55,000 and sought to recover fund benefits from a prior injury while working as an ironworker and sustained multiple fractures to his back from a fall. 

a qualified

medically documented preexisting disability as required by § 287.220.3(2)(a)a

SIF Total supoorted as nonqualifying prior does not count against or for burden of proof

 Jason Eckhardt v Treasurer of Missouri

No. ED 112132, 2024 MO APP. LEXIS 520 

Filed July 30, 2024  Page,  Gaertner, Quigless

Atty:  Lally, Kincaid 

Claimant sought PTD benefits aganst the second injury fund based on multiple prior work injuries.  The Commission denied the claim.  Eckhardt v American Airlines, 2023 MO WCLR LEXIS 54 (Schaefer, ALJ) "Mr. Eckardt did not meet his burden of proof and persuasion because he did not produce credible and persuasive evidence suggesting he was PTD as a result of the combination of the primary injury and only his qualifying preexisting disabilities."  

The Court reverses the denial of Fund benefits and affirmed a determination that occupational disease "counted' for Fund liability. 

Clamant's primary injury in October 2015 invovled his neck and shoulder.  He underwent a surgery with incomplete recovery.  he was MMI in Janaury 2017.  It was settled at 35%. 

His expert, Dr. Volarich, found a total based on knees, shoulders and carpal tunnel. 

The ALJ awarded PTD benefits based on 5 prior qualifying benefits.  His 6th injury, a shoulder, was 2 weeks short to qualify.  

The Commission reversed.  It found the CTS qualified but the award erroenously included a nonqualifying condition.  

The court found claimant must show a combo with a primary when combined with 5 qualifying prior disabilities. The court found the primary combines with all qualifying pre-existing which in this case are more than 400 weeks.  The eixstence of non-qualifying disability does not count against or for the cliamant in evaluating whether he mets the second threshold.  In this case, any consideration f a  nonqualifying condition was not fatal if the evidence showed other disabilities sufficiently combined.

Discussed:  

Klecka v Treasurer, 644 S.W.3d 562 (Mo. banc 2022)

Treasurer of State v Parker, 622 S.2.2d 178 (Mo banc 2021) 

Obermann v Treasurer of the State of Mo, 681 S.W.3d 559 (Mo. App. 2023)

   

Worker who stops and pivots at work fails to prove comp claim

 Jamie Overstreeet v Tamko Building

Release Date: Jan 27, 2022 (accident date Feb. 12, 2018)  

Venue:  Southern District  

ummary:   Court of appeals affirms ALJ/Commisson denial of benefits on claimant's failure to prove bilateral patellofemoral knee pain symdrome and meniscus tear arose out of employment when his knee poppped when he was walking at work and changed directions quickly.

No SD 37171

Discussion.  Claimant argued that the Commisison misapplied the law on  section 287.020.3(2)(b) and that he identified various risk factors to show the injury was compensable including his need to pivot to recover a work related item, the uneven slope of the injury location, the use of protective foot gear, and the need for work to require him to mentally think more than his non-employment life.  Claimant failed to show that the risk was not one in which the worker would not have been equally exposed in his non-employment life as he acknowledged in normal life he often walked and often changed directions. The court notes in a foot note that claimant retracted earlier statment that he was walking at a slighlty faster pace.  A superivsor testified the asphalt lot was typical and similar to many of the community lots.

The court noted it was claimant's burden to proof to show an injury arises out of and in course of employemtn including to show it does not come from a hazard or risk unrelated to the employemnt to which workers would have been equally exposed outsdie of an unrelated to the employment in normal nonemployment life.