The Commission affirmed an award of 30% PPD for a lumbar fusion, without a separate opinion. The employer lost a hardship hearing demanding medical care, and offered new testimony from Dr. Cantrell after a L5-s1 fusion disputing whether claimant's accident was a substantial factor in his condition. The original hardship found the employer liable in the 2002 accident for aggravating a previous asymptomatic degenerative condition. In the final hearing, a different ALJ found the employer had the burden to show "additional significant evidence" to disturb the earlier findings on causation, and the new opinon disputed substantial factor but providing a rating. Kinnikin v Triad Development, DOLIR 2-4-11.
ALJ Gorman
Atty: Bollwert, Hendershot, Waganer
Experts: Cantrell, Volarich, Coyle, Cantrell, England
Treater: Kennedy
Tuesday, February 22, 2011
Personal Comfort doctrine survives "reform"
The Commission recently reversed a denial of benefits, and found a billing clerk who twisted her ankle while making coffee at work can recover compensation benefits under the personal comfort doctrine. The case is Sandy Johme v St. John's Mercy Medical Center, decided on 2-22-11. The Commission found making coffee was an activity incidental to her employment. She twisted her ankle, fell off her shoe, fell backwards, and broke her pelvis.
The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.
The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.
Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.
http://www.labor.mo.gov/LIRC/Forms/WC_Decisions/WCDEC11/JohmeS.pdf
The Commission in a 2-1 decision found no clear statutory intent in 2005 reform to abrogate the personal comfort doctrine, which has been around for 80 years, despite the clear intent to narrow the definition of accident and abrogate controversial decisions based on positional risk. The Commission applied a three prong balancing test when an incidental activity may be compensable: if the departure was not great, if the method was not unusual or unreasonable, and if there was some benefit to the employer. In this case, the commission identified no hazard causing the accident, but identified that coffee made other employees have more energy and focus. Claimant testified that her employer provided coffee supplies, employees made coffee all the time, and she lost her balance when throwing away coffee grounds.
The case opens the door to more litigation involving incidental activity claims and shifts the new battle whether an accident flows from work activities to whether a departure from work activities is reasonable.
Applying Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010) the Commission found that the hazard of making coffee was deemed related to employment. The Commission did not apply the second prong of Pile, whether claimant had equal exposure to non-employment life. Claimant offered testimony that she had no hazard to "making coffee" on the weekends, because she did not drink coffee away from the job. The parties litigated the case on the legal issue only, and stipulated to medical expenses, TTD, and PPD of 30%. Johme v St. Johns Mercy Medical Center, DOLIR 2-22-01.
http://www.labor.mo.gov/LIRC/Forms/WC_Decisions/WCDEC11/JohmeS.pdf
Wednesday, February 16, 2011
PTD Cases (denied)
No Disability from fall from bus seat
Claimant failed to prove a new permanent injury when he fell out of a bus seat of a bus driven by a coworker. He treated for a back injury with therapy and injections and asserted that he had significant disability to his back. His expert provided a nominal rating of 5% disability but felt the condition combined to render him totally disabled. The ALJ denied any benefits. Taylor v Penmac Personnel, 5-16-2013.
Claimant was 66 years old and had recently re-entered the labor market as a part-time employee after collecting social security disability for several years. He had several previous settlements, including a prior SIF settlement of $30,000 based on allegations of total disability. He had sought treatment for an epidural steroid injection shortly before his primary injury. The ALJ noted a strong similarity of symptoms reported after the primary accident compared to treatment shortly before the accident.
The ALJ that no doctor attributed any new psychiatric disability, although claimant had a prior psychiatric condition which affected his "perception" of disability.
ALJ Wilson
Atty: Alberhasty, Hosmer, Bullock, Burks
Experts: Koprivica, Halfaker, Pak, England
No PTD for bump in hall
A 66-year old registered nurse claims she could never work again because a doctor bumped into her with his shoulder in the hallway. She worked another 7 years after the August 2000 accident.
The Commission concluded claimant failed to prove causation to support an award of medical bills and disability to many of her allegations which included TMJ, depression and laryngeal hematoma. The claimant reported chronic myofascial pain that affected her sleep, required injections, and regular use of a cervical collar. ALJ Allen awarded 30% BAW and TTD on the basis of her cervical symptoms. Burke v Heartland Health Systems, 2012 Mo WCLR Lexis 201 (Nov. 26, 2012).
ALJ Allen
Experts: Koprivica, Thompson, Blatt, Zarr
Competing experts
The claimant failed to persuade the ALJ based on competing vocational testimony that he was unemployable in the open labor market. Age was not a hindrance for someone pursuing a "second" career. The evidence was indecipherable to define the extent of pre-existing hearing loss based on the required statutory formula. Bay v Bays Window and Siding, 2012 MOWCLR 60 (3-21-12) (no published ALJ opinion)
ALJ Boresi
Experts: Lalk, Poetz, Chabot
"Working" total
Claimant could not recovery second injury fund benefits from a synergistic effect from his primary injury and pre-existing conditions because he was already totally disabled before he was hired. Claimant collected social security disability for debilitating back pain for about 7 years before he worked briefly for about 4weeks at Buckley Powder Co. He states he was not candid about his back condition or his use of daily narcotics because if he admitted he was all "boogered up" he would not be hired to handle explosive materials. The Commission found that claimant's capacity to obtain a job did not show he was capable of competing for employment in the open labor market because of his lack of candor. The employer settled for 22 1/2% prior to the hearing. The case is Cook v Buckley Powder Co., DOLIR 3-17-11.
ALJ Siedlik.
Experts: Koprivica, Drieling
Claimant is a 50 year old without a GED who claims significant limitations to his back and arms, but failed to prove he was permanently and totally disabled when his own experts did not support the PTD claim. The administrative law judge noted simply because claimant lived in Warsaw and may have limited job opportunities in that location did not make him unemployable. The claimant proceeded against the second injury fund alone, after claimant settled his 2004 case involving both arms with the employer. He received an award of nearly $11,000 from the second injury fund, on the finding that his primary injury caused a 50% of the body disability based on an uncontested rating from claimant's expert. Andrews v Murphy Tractor, DOLIR 2-9-11.
ALJ McKeon
Atty: Effertz, Van Fleet
Experts: Koprivica, Dreiling
Claimant fails to prove PTD against Fund due to post-accident worsening. Claimant established he had pre-existing disability of over 81% BAW, and his expert testified his prior PTSD rendered him unable to work even without consideration of his primary carpal tunnel case. Claimant worked several years after his carpal tunnel surgery but ended a 20 year career at General Motors after a flashback episode from an experience as a paramedic in 1997 when he was unable to save a young child. Freeman v General Motors, DOLIR 8-3-11.
ALJ Gorman
Atty: Beatty, Bean
Experts: Anderson, Volarich, England, Gonzalez
Claimant fails to prove PTD against Fund due to post-accident worsening including back surgeries and stents that produced intractable pain. Claimant's expert improperly included post-accident conditions to assess Fund liability, despite attempts to later clarify her position. Dobbs v City of Oran, DOLIR 7-26-11.
ALJ Robbins
Atty Taylor, Rodman
Experts: Guidos, Shea
Claimant failed to prove PTD against Fund flowed from combination and not from post accident worsening of cervical disease, which ultimately required 3 level fusion. ALJ considered treating surgeon more persuasive on issue than examining expert. Current v Little Hills Health Care, DOLIR 7-26-11
ALJ Kohner
Atty Pugliese
Experts: England, Volarich
Treater Rutz
Claimant failed to prove PTD flowed from a combination of the primary injury and prior conditions existing at the time of the accident, and not from post-accident worsening, according to a Commission decision affirmed 2-1. The ALJ compared multiple radiology studies and found evidence of worsening of a "new" C4-5 bulge and a new L5-S1 lumbar disc herniation several years after the accident. Claimant did not offer additional testimony how ratings of fibromyalgia and a kidney condition affected a capacity to work. The employer settled the primary case for 40% for a fusion, after claimant's accident required surgery for a disc level operated on about 4 years earlier. Trackes v Angels on Duty, DOLIR 7-13-11.
ALJ Gorman
Atty: Marty, Cordia
Expets: Berkin, Hoffman, Woiteshek
Claimant alleges neck and arm pain from cervical disc disease (unoperated) and bilateral carpal tunnel syndrome (operated), renders him unable to work in the open labor market because of severe symptoms which makes him take showers several times a day for pain relief and impairs his ability to even lift a coffee cup or staple papers. He last worked as a UPS driver in 2003 and collects social security.
Claimant, 56, settled his two cases involving the neck and arms against the employer, and claims the Commission should have awarded PTD against the SIF instead of permanent partial, because his experts supported a PTD award and the Fund offered no medical or vocational evidence. The court of appeals affirmed the PPD award. Claimant's medical history supported a finding that claimant was not a total at the time of the last accident, and any PTD flowed from subsequent worsening in his cervical condition. His vocational expert examined him 5 years after the accident and testified that at the time of the last accident the combination represented a hindrance or obstacle, but he did not address that the combined conditions were totally disabling. The medical history suggests a worsening of symptoms from mild to severe. No medical records were offered evidence, and the court relied upon medical histories contained in the expert reports. The court distinguished several cases, also involving claimant's same expert witness. Ronald Michael v Treasurer, State of Mo, No. SD 30365 (Mo. App. 2-23-11)
Atty: Newman, Coster
Experts: Volarich, Swearingin
Judge: Lynch
Claimant failed to establish liability of the second injury fund, when the claimant's vocational expert found onerous work restrictions from the primary work accident alone and other experts attributed high ratings totaling 100% BAW from the primary injury involving disc protrusions and worsening of a prior psychiatric condition. Claimant had settled the claim against the employer for 21%. Smyth v Oscar Wilson Engine and Parts, DOLIR 3-17-11
ALJ Kohner
Atty: Carter
Experts: Musich, Rosen, Lalk, Stillings, Kitchens
Claimant asserted he was permanently and totally disabled in a claim against the second injury fund after settling a claim against his employer involving both shoulders, elbows and wrists. Claimant is a pipe fitter who had permanent restrictions of lifting up to 5 pounds, among other limitations. The administrative law judge concluded claimant's primary injury alone precluded sedentary employment and denied Fund benefits, relying upon onerous restrictions and high ratings totaling 450 weeks of disability on the primary injury furnished by claimant's own expert against the employer. The award notes in a footnote that statutory reform in 287.808 may have changed the burden of proof to establish disability from reasonable degree of medical certainty to a standard of more likely than not. Benoist v Anheuser Busch Co., DOLIR 12-2-10.
ALJ Percy
Experts: Volarich, England
Treaters: Emanuel, Caplin
Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.
The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant’s vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment, especially if claimant had other attractive traits to further justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant’s prior capacity to perform essential job functions with accommodation instead of the abstract vocational idea whether the open labor market deemed some accommodations toxic.
The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced unrefuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant’s prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the Fund’s vocational expert provided no persuasive testimony to refute the finding.
Claimant failed to prove a new permanent injury when he fell out of a bus seat of a bus driven by a coworker. He treated for a back injury with therapy and injections and asserted that he had significant disability to his back. His expert provided a nominal rating of 5% disability but felt the condition combined to render him totally disabled. The ALJ denied any benefits. Taylor v Penmac Personnel, 5-16-2013.
Claimant was 66 years old and had recently re-entered the labor market as a part-time employee after collecting social security disability for several years. He had several previous settlements, including a prior SIF settlement of $30,000 based on allegations of total disability. He had sought treatment for an epidural steroid injection shortly before his primary injury. The ALJ noted a strong similarity of symptoms reported after the primary accident compared to treatment shortly before the accident.
The ALJ that no doctor attributed any new psychiatric disability, although claimant had a prior psychiatric condition which affected his "perception" of disability.
ALJ Wilson
Atty: Alberhasty, Hosmer, Bullock, Burks
Experts: Koprivica, Halfaker, Pak, England
No PTD for bump in hall
A 66-year old registered nurse claims she could never work again because a doctor bumped into her with his shoulder in the hallway. She worked another 7 years after the August 2000 accident.
The Commission concluded claimant failed to prove causation to support an award of medical bills and disability to many of her allegations which included TMJ, depression and laryngeal hematoma. The claimant reported chronic myofascial pain that affected her sleep, required injections, and regular use of a cervical collar. ALJ Allen awarded 30% BAW and TTD on the basis of her cervical symptoms. Burke v Heartland Health Systems, 2012 Mo WCLR Lexis 201 (Nov. 26, 2012).
ALJ Allen
Experts: Koprivica, Thompson, Blatt, Zarr
Competing experts
The claimant failed to persuade the ALJ based on competing vocational testimony that he was unemployable in the open labor market. Age was not a hindrance for someone pursuing a "second" career. The evidence was indecipherable to define the extent of pre-existing hearing loss based on the required statutory formula. Bay v Bays Window and Siding, 2012 MOWCLR 60 (3-21-12) (no published ALJ opinion)
ALJ Boresi
Experts: Lalk, Poetz, Chabot
"Working" total
Claimant could not recovery second injury fund benefits from a synergistic effect from his primary injury and pre-existing conditions because he was already totally disabled before he was hired. Claimant collected social security disability for debilitating back pain for about 7 years before he worked briefly for about 4weeks at Buckley Powder Co. He states he was not candid about his back condition or his use of daily narcotics because if he admitted he was all "boogered up" he would not be hired to handle explosive materials. The Commission found that claimant's capacity to obtain a job did not show he was capable of competing for employment in the open labor market because of his lack of candor. The employer settled for 22 1/2% prior to the hearing. The case is Cook v Buckley Powder Co., DOLIR 3-17-11.
ALJ Siedlik.
Experts: Koprivica, Drieling
Claimant is a 50 year old without a GED who claims significant limitations to his back and arms, but failed to prove he was permanently and totally disabled when his own experts did not support the PTD claim. The administrative law judge noted simply because claimant lived in Warsaw and may have limited job opportunities in that location did not make him unemployable. The claimant proceeded against the second injury fund alone, after claimant settled his 2004 case involving both arms with the employer. He received an award of nearly $11,000 from the second injury fund, on the finding that his primary injury caused a 50% of the body disability based on an uncontested rating from claimant's expert. Andrews v Murphy Tractor, DOLIR 2-9-11.
ALJ McKeon
Atty: Effertz, Van Fleet
Experts: Koprivica, Dreiling
Claimant fails to prove PTD against Fund due to post-accident worsening. Claimant established he had pre-existing disability of over 81% BAW, and his expert testified his prior PTSD rendered him unable to work even without consideration of his primary carpal tunnel case. Claimant worked several years after his carpal tunnel surgery but ended a 20 year career at General Motors after a flashback episode from an experience as a paramedic in 1997 when he was unable to save a young child. Freeman v General Motors, DOLIR 8-3-11.
ALJ Gorman
Atty: Beatty, Bean
Experts: Anderson, Volarich, England, Gonzalez
Claimant fails to prove PTD against Fund due to post-accident worsening including back surgeries and stents that produced intractable pain. Claimant's expert improperly included post-accident conditions to assess Fund liability, despite attempts to later clarify her position. Dobbs v City of Oran, DOLIR 7-26-11.
ALJ Robbins
Atty Taylor, Rodman
Experts: Guidos, Shea
Claimant failed to prove PTD against Fund flowed from combination and not from post accident worsening of cervical disease, which ultimately required 3 level fusion. ALJ considered treating surgeon more persuasive on issue than examining expert. Current v Little Hills Health Care, DOLIR 7-26-11
ALJ Kohner
Atty Pugliese
Experts: England, Volarich
Treater Rutz
Claimant failed to prove PTD flowed from a combination of the primary injury and prior conditions existing at the time of the accident, and not from post-accident worsening, according to a Commission decision affirmed 2-1. The ALJ compared multiple radiology studies and found evidence of worsening of a "new" C4-5 bulge and a new L5-S1 lumbar disc herniation several years after the accident. Claimant did not offer additional testimony how ratings of fibromyalgia and a kidney condition affected a capacity to work. The employer settled the primary case for 40% for a fusion, after claimant's accident required surgery for a disc level operated on about 4 years earlier. Trackes v Angels on Duty, DOLIR 7-13-11.
ALJ Gorman
Atty: Marty, Cordia
Expets: Berkin, Hoffman, Woiteshek
Claimant alleges neck and arm pain from cervical disc disease (unoperated) and bilateral carpal tunnel syndrome (operated), renders him unable to work in the open labor market because of severe symptoms which makes him take showers several times a day for pain relief and impairs his ability to even lift a coffee cup or staple papers. He last worked as a UPS driver in 2003 and collects social security.
Claimant, 56, settled his two cases involving the neck and arms against the employer, and claims the Commission should have awarded PTD against the SIF instead of permanent partial, because his experts supported a PTD award and the Fund offered no medical or vocational evidence. The court of appeals affirmed the PPD award. Claimant's medical history supported a finding that claimant was not a total at the time of the last accident, and any PTD flowed from subsequent worsening in his cervical condition. His vocational expert examined him 5 years after the accident and testified that at the time of the last accident the combination represented a hindrance or obstacle, but he did not address that the combined conditions were totally disabling. The medical history suggests a worsening of symptoms from mild to severe. No medical records were offered evidence, and the court relied upon medical histories contained in the expert reports. The court distinguished several cases, also involving claimant's same expert witness. Ronald Michael v Treasurer, State of Mo, No. SD 30365 (Mo. App. 2-23-11)
Atty: Newman, Coster
Experts: Volarich, Swearingin
Judge: Lynch
Claimant failed to establish liability of the second injury fund, when the claimant's vocational expert found onerous work restrictions from the primary work accident alone and other experts attributed high ratings totaling 100% BAW from the primary injury involving disc protrusions and worsening of a prior psychiatric condition. Claimant had settled the claim against the employer for 21%. Smyth v Oscar Wilson Engine and Parts, DOLIR 3-17-11
ALJ Kohner
Atty: Carter
Experts: Musich, Rosen, Lalk, Stillings, Kitchens
Claimant asserted he was permanently and totally disabled in a claim against the second injury fund after settling a claim against his employer involving both shoulders, elbows and wrists. Claimant is a pipe fitter who had permanent restrictions of lifting up to 5 pounds, among other limitations. The administrative law judge concluded claimant's primary injury alone precluded sedentary employment and denied Fund benefits, relying upon onerous restrictions and high ratings totaling 450 weeks of disability on the primary injury furnished by claimant's own expert against the employer. The award notes in a footnote that statutory reform in 287.808 may have changed the burden of proof to establish disability from reasonable degree of medical certainty to a standard of more likely than not. Benoist v Anheuser Busch Co., DOLIR 12-2-10.
ALJ Percy
Experts: Volarich, England
Treaters: Emanuel, Caplin
Is an employee with a pre-existing disability who is accommodated by an employer still engaged in competitive employment? The Commission found claimant was still competitively employed, although claimant reported that his chronic back before his accident required him to lie down 5 to 6 times a day on his cot after performing heavy duties as a maintenance man. The case is Toebben v Fred Weber Construction, DOLIR 11-4-10. The Commission reached the issue to decide whether or not claimant before his primary shoulder injury was gainfully employed or a "working total" to determine whether the Second Injury Fund had any liability.
The Commission found claimant was competitively employed prior to the accident. It analyzed the performance of his overall demanding physical duties to the duration and frequency of the accommodation. Claimant made "regular wages", and was able to perform required tasks over a prolonged period. He did not lie down every day. Claimant’s vocational expert conceded claimant may be unable to compete for or maintain employment in the open labor market if the need to lie down occurred on a regular basis. The need to lie down did not always preclude gainful employment, especially if claimant had other attractive traits to further justify an accommodation. In this case, claimant was a long-term employee. The case highlights the importance of evidence of claimant’s prior capacity to perform essential job functions with accommodation instead of the abstract vocational idea whether the open labor market deemed some accommodations toxic.
The claimant sought permanent and total disability benefits against the Second Injury Fund. He asserted that his back pain was a hindrance and obstacle to his employment flowing from a landmine accident in Vietnam. He described recurring and worsening back symptoms during his 24 year job with Fred Weber. Claimant introduced unrefuted medical testimony that his disability arose from a combination. The administrative law judge denied benefits and concluded that the Fund had no liability because claimant failed to prove both the primary and pre-existing conditions combined to render claimant unemployable because claimant’s prior conditions alone rendered him unemployable. The Commission reversed, and awarded permanent and total benefits against the Second Injury Fund. Claimant had shown that he was "employable" before his accident, and the Fund’s vocational expert provided no persuasive testimony to refute the finding.
Wednesday, December 15, 2010
287.420 notice
Notice of tinnitus in claim satisfies notice requirement
Claimant alleged he developed hearing loss and ringing in his ears from is career as an airline mechanic. He did not establish a compensable hearing loss but ringing in his ears was sufficient to establish a second injury fund claim and support an award of total disability combined with his prior COPD. The Commission noted claimant had no duty to provide notice until he became aware the condition was work related. Sparks v American Airlines, 2014 Mo WCLR Lexis 109 (Sept. 16, 2014).
ALJ Nelson
Atty: Baker
Experts: Koprivica, Titterington
Knowledge of treatment of medical condition does not constitute notice
Claimant's claim for compensation was the first written notice of an accident and she failed to establish a lack of prejudice to the employer's ability to investigate or direct timely treatment. Claimant describes worsening orthopedic and mental conditions after a confrontation with a combative patient. The employer may have had knowledge that she was treating for her back but not that it flowed from the work injury.
The ALJ found the claimant did not prove accident or notice and was not credible based on inconsistent medical history, court room demeanor, disproportionate subjective symptoms and inaccurate statements on an employment application. The court suggests claimant's worsening mental symptoms were in conjunction with drug use and did flow from the work injury. Gibbons v St. Louis Univ., 2013 Mo WCLR Lexis 5.
Atty: Gregory, O'Sullivan, Cunningham
ALJ: Ottenad
Experts: Volarich, Stillings, England, Smith Wayne
Stipulated PPD diminishes notice defense
The injured worker hurt his knee when he fell on black ice, he treated on his own, and waited nearly two months beyond the statutory 30 day deadline to provide notice to his employer but the Commission reversed a denial of benefits based on an absence of prejudice.
Statutory reform requires written notice in 30 days and removed the "good cause" excuse for late notice and timely written notice can now only be excused if that failure did not prejudice employer. "Claimant admittedly did not provide notice to Employer at that point out of fear that she would get in trouble for not following Employer's policy that all injuries must be immediately reported."
The case proceeded on the sole disputed issue of notice and the employer stipulated to all other facts including an agreed amount for disability. The ALJ concluded prejudice existed because the employer did not have the opportunity to investigate the accident or minimize the disability. The employer asserts investigation could have determined whether claimant violated any safety policies regarding non-slip footwear.
The commission noted the employer's stipulation to disability undermined its argument that more timely notice would have reduced disability. Similarly, the commission found no prejudice regarding the inability of the employer to manage medical expenses by directing care because claimant did not submit the medical bills. The commission did not find persuasive that the employer had potential prejudice from a possible safety penalty when there was no evidence of actual prejudice and the employer had not asserted a safety penalty as an affirmative defense. Faulker v Aramark Educational Services, 2012 Mo WCLR Lexis 202 (Dec. 6, 2012) ; 2013 MO WCLR Lexis 204 (Oct. 30, 2013)(reversing prior decision granting compensation after mandate establishing no evidence on lack of prejudice).
ALJ: Ottenad Atty: Eveland, Amsler
The claimant did not have an obligation to provide notice of an occupational disease until a doctor made causation, which did not occur until after claimant completed treatment and saw her own expert witness. The Commission modified an award of 25% PPD of the shoulder to PTD against the employer when it concluded that lack of notice did not preclude awarding additional disability for both arms and a psychiatric claim. The Commission criticized the exhibits regarding medical bills and stated it would not serve as an advocate but noted it went through "considerable difficulty" to find more than 23,000 in bills compensable.
Berend v Fasco Industries, 2012 Mo WCLR Lexis 189 (Nov. 8, 2012).
ALJ: Fischer
Atty: Allen
Experts: Volarich, England
The claimant failed to prove she established timely notice as required by 287.420, according to a decision affirmed by the Commission in Cotter v Bakersfield R-IV School, 2010 Mo WCLR Lexis 197. Claimant alleged she required a C5-C7 fusion in 2005, as a result of lifting a 40 pound box of canned food in 2004. The administrative law judge noted claimant first provided written notice of a work related accident 5 months after her surgery, and found claimant's lack of any documented history of a work-related history significant. The lack of history was explained by the excuse that the topic did not come up. The claimant failed to overcome a finding of prejudice when her own expert testified that earlier treatment may have alleviated the need for surgery. An expert indicated that claimant's lack of medical treatment for a month was unexplained, as a ruptured disc would likely have caused immediate symptoms and a need to pursue earlier care. The administrative law judge declined to accept that the employer's personnel file was materially incomplete or that the employer was subject to a negative inference for not calling the former superintendent, who claimant reports she may have told about a work injury.
ALJ: Mahon
Atty: Alberhasty, Goodnight
Experts: Koprivica, Lennard, England
Claimant did not have a duty to report her carpal tunnel until October 2008 when Dr. Schlafly associated her condition to her employment. The commission found the employer's obligation that the 30 day reporting deadline began when a diagnostician made the connection. "Stray" comments that claimant had carpal tunnel and "does a lot of typing" was not sufficient to trigger a duty to report to her employer following an EMG study performed 5 months earlier.
The Commission noted 287.420 required notice of the "time" of injury, and notice was deficient when the claimant used a date of diagnosis (the EMG study) when there was no exposure or employment on the pled date. The employer, however, failed to demonstrate any evidence of prejudice as it had an opportunity to investigate the claim within 3 weeks of the EMG diagnosis, and had earlier knowledge of hand symptoms even months prior to the EMG study. The Commission in a separate opinion noted the employer misread Alcorn and 287.420.
The employer relied upon expert testimony that claimant had other risk factors for carpal tunnel syndrome including age, gender and obesity and asserted that claimant's activities were not hand intensive. The ALJ observed Dr. Crandall relied upon European studies and assumed ergonomic exposures were similar in this case: "Dr. Crandall relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. Dr. Crandall did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture." The case is Beckton v AT&T, 2011 Mo WCLR Lexis 114.
ALJ Carlisle
Atty: Evans, Cordes
Experts: Sclafly, Crandall
Claimant alleged he developed hearing loss and ringing in his ears from is career as an airline mechanic. He did not establish a compensable hearing loss but ringing in his ears was sufficient to establish a second injury fund claim and support an award of total disability combined with his prior COPD. The Commission noted claimant had no duty to provide notice until he became aware the condition was work related. Sparks v American Airlines, 2014 Mo WCLR Lexis 109 (Sept. 16, 2014).
ALJ Nelson
Atty: Baker
Experts: Koprivica, Titterington
Knowledge of treatment of medical condition does not constitute notice
Claimant's claim for compensation was the first written notice of an accident and she failed to establish a lack of prejudice to the employer's ability to investigate or direct timely treatment. Claimant describes worsening orthopedic and mental conditions after a confrontation with a combative patient. The employer may have had knowledge that she was treating for her back but not that it flowed from the work injury.
The ALJ found the claimant did not prove accident or notice and was not credible based on inconsistent medical history, court room demeanor, disproportionate subjective symptoms and inaccurate statements on an employment application. The court suggests claimant's worsening mental symptoms were in conjunction with drug use and did flow from the work injury. Gibbons v St. Louis Univ., 2013 Mo WCLR Lexis 5.
Atty: Gregory, O'Sullivan, Cunningham
ALJ: Ottenad
Experts: Volarich, Stillings, England, Smith Wayne
Stipulated PPD diminishes notice defense
The injured worker hurt his knee when he fell on black ice, he treated on his own, and waited nearly two months beyond the statutory 30 day deadline to provide notice to his employer but the Commission reversed a denial of benefits based on an absence of prejudice.
Statutory reform requires written notice in 30 days and removed the "good cause" excuse for late notice and timely written notice can now only be excused if that failure did not prejudice employer. "Claimant admittedly did not provide notice to Employer at that point out of fear that she would get in trouble for not following Employer's policy that all injuries must be immediately reported."
The case proceeded on the sole disputed issue of notice and the employer stipulated to all other facts including an agreed amount for disability. The ALJ concluded prejudice existed because the employer did not have the opportunity to investigate the accident or minimize the disability. The employer asserts investigation could have determined whether claimant violated any safety policies regarding non-slip footwear.
The commission noted the employer's stipulation to disability undermined its argument that more timely notice would have reduced disability. Similarly, the commission found no prejudice regarding the inability of the employer to manage medical expenses by directing care because claimant did not submit the medical bills. The commission did not find persuasive that the employer had potential prejudice from a possible safety penalty when there was no evidence of actual prejudice and the employer had not asserted a safety penalty as an affirmative defense. Faulker v Aramark Educational Services, 2012 Mo WCLR Lexis 202 (Dec. 6, 2012) ; 2013 MO WCLR Lexis 204 (Oct. 30, 2013)(reversing prior decision granting compensation after mandate establishing no evidence on lack of prejudice).
ALJ: Ottenad Atty: Eveland, Amsler
The claimant did not have an obligation to provide notice of an occupational disease until a doctor made causation, which did not occur until after claimant completed treatment and saw her own expert witness. The Commission modified an award of 25% PPD of the shoulder to PTD against the employer when it concluded that lack of notice did not preclude awarding additional disability for both arms and a psychiatric claim. The Commission criticized the exhibits regarding medical bills and stated it would not serve as an advocate but noted it went through "considerable difficulty" to find more than 23,000 in bills compensable.
Berend v Fasco Industries, 2012 Mo WCLR Lexis 189 (Nov. 8, 2012).
ALJ: Fischer
Atty: Allen
Experts: Volarich, England
The claimant failed to prove she established timely notice as required by 287.420, according to a decision affirmed by the Commission in Cotter v Bakersfield R-IV School, 2010 Mo WCLR Lexis 197. Claimant alleged she required a C5-C7 fusion in 2005, as a result of lifting a 40 pound box of canned food in 2004. The administrative law judge noted claimant first provided written notice of a work related accident 5 months after her surgery, and found claimant's lack of any documented history of a work-related history significant. The lack of history was explained by the excuse that the topic did not come up. The claimant failed to overcome a finding of prejudice when her own expert testified that earlier treatment may have alleviated the need for surgery. An expert indicated that claimant's lack of medical treatment for a month was unexplained, as a ruptured disc would likely have caused immediate symptoms and a need to pursue earlier care. The administrative law judge declined to accept that the employer's personnel file was materially incomplete or that the employer was subject to a negative inference for not calling the former superintendent, who claimant reports she may have told about a work injury.
ALJ: Mahon
Atty: Alberhasty, Goodnight
Experts: Koprivica, Lennard, England
Claimant did not have a duty to report her carpal tunnel until October 2008 when Dr. Schlafly associated her condition to her employment. The commission found the employer's obligation that the 30 day reporting deadline began when a diagnostician made the connection. "Stray" comments that claimant had carpal tunnel and "does a lot of typing" was not sufficient to trigger a duty to report to her employer following an EMG study performed 5 months earlier.
The Commission noted 287.420 required notice of the "time" of injury, and notice was deficient when the claimant used a date of diagnosis (the EMG study) when there was no exposure or employment on the pled date. The employer, however, failed to demonstrate any evidence of prejudice as it had an opportunity to investigate the claim within 3 weeks of the EMG diagnosis, and had earlier knowledge of hand symptoms even months prior to the EMG study. The Commission in a separate opinion noted the employer misread Alcorn and 287.420.
The employer relied upon expert testimony that claimant had other risk factors for carpal tunnel syndrome including age, gender and obesity and asserted that claimant's activities were not hand intensive. The ALJ observed Dr. Crandall relied upon European studies and assumed ergonomic exposures were similar in this case: "Dr. Crandall relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. Dr. Crandall did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture." The case is Beckton v AT&T, 2011 Mo WCLR Lexis 114.
ALJ Carlisle
Atty: Evans, Cordes
Experts: Sclafly, Crandall
Fund PPD award affirmed
The Commission affirms an award against the SIF for permanent partial disability benefits based on statutory minimums of 15% of the right wrist and ankle. No basis for alleged error is identified. The award does not identify that the SIF offered any expert evidence with a lower disability. Claimant had multiple prior injuries involving the foot/ankle and wrist dating back to 1987, but offered limited medical records. The employer settled the primary case for 37 1/2% disability for two replaced cervical discs, resulting in over $100,000 in medical bills and permanent restrictions of medium duty which precluded claimant from returning to his 3 year career as a firefighter. Battle v City of St. Louis, DOLIR 12-15-10.
ALJ: Carlisle
Atty: Thurman, Smith
Experts: Volarich
Treaters: Taylor
ALJ: Carlisle
Atty: Thurman, Smith
Experts: Volarich
Treaters: Taylor
Thursday, November 11, 2010
SIF defenses
Post Accident Worsening
Claimant did not prevail in his second injury fund claim when the primary settlement for hernia did not reach the statutory threshold and any PTD flowed in part from post-accident worsening of pre-existing conditions. Claimant's prior settlements for various injuries represented 96% BAW. The ALJ notes the case involves pre-reform liberal construction to establish a primary injury of hernia from a series of events. Hager v Steelwood Equipment, 2012 Mo WCLR Lexis 151 (August 2, 2012)
ALJ Kohner
Atty: Edelman
Experts: Poetz, England, Cohen, Cantrell
Claimant's vocational expert fails to differentiate post-accident worsening in a claim of permanent total benefits. Rowe v Barnes Jewish Hospital, 2012 MO WCLR LEXIS 66.
ALJ Ottenad
Atty: Merlin, Frazier
Experts: Stillings, Berkin
Claimant failed to prove a compensable PTD claim because unemployability flowed from post accident worsening of her neck to become a candidate from fusion and worsening of diabetes. The ALJ found claimant went back to work for about 1 1/2 years from her back strain answering phones, and such work based on lifting restrictions was accommodated and considered employment in the open labor market. Lewis v KU Medical Center, DOLIR 3-31-11.
ALJ: Meiners Atty: Hill Experts: Koprivica, Titterington
Claimant convinced an administrative law judge that her MS rendered her unemployable, but failed to show her PTD flowed from a combination of primary osteochondral knee injury and pre-existing conditions, and not from post-accident worsening. Experts did not support the statutory requirement for a synergistic effect when the MS condition alone was of such a magnitude to render claimant unemployable. Hill v The Boeing Company, DOLIR 11-4-10
ALJ: Ottenad
Atty: Gault
Experts: Cohen, Kramer
Treaters: Dr. Ma, Dr. Kos
Claimant established he was unemployable but did not prevail in a PTD claim against the Fund due to post-accident worsening of orthopedic injuries. In addition he developed other serious non-occupational medical conditions. Claimant was unable to participate in the hearing because he was in hospice for stage four medical condition. Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014).
ALJ: Landolt
Atty: Monticello, Hudson
Experts: Cohen, Pelikan, England
Statute of Limitations
A "claim" for purposes of reviewing a statute of limitations defense under 287.430 includes both a claim for compensation and a settlement, according to the western court of appeals, finding a claim against the second injury fund filed within a year after a settlement with the employer was timely. The decision follows a similar interpretation in 2009 in the Eastern District. The case is Treasurer of the State of Missouri v Phillip Cook, WD 72019 (Mo. App. 10-26-10). The court found the Fund's attempt to base its argument based on dictum is not persuasive. The Commission reversed an initial denial based on the SOL defense.
The second injury fund argued the award for PTD in a 2003 case was not supported by substantial evidence, but offered no evidence from any vocational or medical experts to rebut testimony from Dr. Stuckemeyer and Mary Titterington. Claimant was 64-years old and had an 8th grade education and the Commission found claimant not employable in the open labor market based on his primary settled injury involving a 20% right shoulder and prior conditions rated by Dr. Stuckmeyer for the same shoulder, the left shoulder, plantar fasciitis, back, and a heart problem. How these earlier conditions impaired claimant's capacity to work beyond limits from his education and age is not entirely clear in the opinion. The court deferred to the Commission that claimant was credible that attempts to return to work were a "real struggle" and that claimant's return to work after his primary work injury was not decisive whether or not he could compete in the open labor market.
The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, ED 92457 (Mo. App. 12-1-09). The court further rejected the Second Injury's Fund defense under the statute of limitations and found a "claim" was not always a WC-21 claim form, but could also be construed to mean the settlement itself for purposes of starting application of the 24 month statute of limitations. Claimant did not file a claim until 26 months after the original accident date.
In Cook v Calmar, DOLIR 1-14-10, the Commission followed Grubbs and reversed a denial of benefits, based on the same SOL defense when the claimant filed a claim against the fund 1 month after settling the case against the employer. The Fund produced no other medical or vocational evidence, to contest the claim, and ultimate award, for permanent and total disability arising from a 2003 accident.
Unjust enrichment
The claimant was awarded $254,700.20 in unpaid medical bills following two months of treatment for lung and head injuries as a result of falling off of a scaffold while working for an uninsured employer. The Fund did not raise any objections or offer any evidence at the hearing, but on appeal to the court of appeals disputes it should pay the award directly to claimant since the claimant might compromise the bills and use the balance as a windfall. The court clearly rejects the argument in Skinner v. Donna Morgan, SD No. 30019 (Mo. App. 3-8-10), finding strict construction and prior case law of Wilmeth v TMI Inc reject such a defense as unfounded and "conjuring a speculative scenario."
Appeal - failure to use exact statutory language in decision is not reversible error
Claimant injured his knee and sustained 15% new disability as a result of a meniscus tear, and received an award for permanent and total disability against the second injury fund because of prior conditions including multiple previous injuries to the same knee, the opposite leg and other conditions. The administrative law judge rejected opinions of Dr. Randolph who testified for the Fund that claimant never had any disability from his last accident and his impairment flowed from prior osteoarthritis. The Commission found evidence that claimant's last accident had caused a new 'medical condition', even though the administrative law judge did not use the phrase 'medical condition' in its findings. The court of appeals concluded that the failure to track the specific statutory language was not reversible error, and noted the Fund failed to provide any legal reasoning to support its proposition. Savage v Treasurer of Missouri as Custodian of Second Injury Fund, ED 93869 (Mo. App. 4-27-10).
No threshold amount
The commission modified an award against the second injury fund, increasing it from $18,180.60 to $23,539.33, finding claimant's primary foot injuries from standing on concrete synergistically combined with his prior asthma, sinusitis, and psychiatric issues to cause additional fund disability. The administrative law judge deemed such pre-existing conditions too minimal to award disability. Claimant, 38, had prior workers compensation settlements and pled claims against the second injury fund ranging from ringing ears to gastric issues. Claimant failed to prove repetitive trauma injury to his neck in a companion case when expert testimony was inconsistent with medical records. Dodson v von Hoffman Press, DOLIR 9-23-10
ALJ Fischer
Atty: Christiansen,
Experts: Lichtenfeld, Hogan
Claimant did not prevail in his second injury fund claim when the primary settlement for hernia did not reach the statutory threshold and any PTD flowed in part from post-accident worsening of pre-existing conditions. Claimant's prior settlements for various injuries represented 96% BAW. The ALJ notes the case involves pre-reform liberal construction to establish a primary injury of hernia from a series of events. Hager v Steelwood Equipment, 2012 Mo WCLR Lexis 151 (August 2, 2012)
ALJ Kohner
Atty: Edelman
Experts: Poetz, England, Cohen, Cantrell
Claimant's vocational expert fails to differentiate post-accident worsening in a claim of permanent total benefits. Rowe v Barnes Jewish Hospital, 2012 MO WCLR LEXIS 66.
ALJ Ottenad
Atty: Merlin, Frazier
Experts: Stillings, Berkin
Claimant failed to prove a compensable PTD claim because unemployability flowed from post accident worsening of her neck to become a candidate from fusion and worsening of diabetes. The ALJ found claimant went back to work for about 1 1/2 years from her back strain answering phones, and such work based on lifting restrictions was accommodated and considered employment in the open labor market. Lewis v KU Medical Center, DOLIR 3-31-11.
ALJ: Meiners Atty: Hill Experts: Koprivica, Titterington
Claimant convinced an administrative law judge that her MS rendered her unemployable, but failed to show her PTD flowed from a combination of primary osteochondral knee injury and pre-existing conditions, and not from post-accident worsening. Experts did not support the statutory requirement for a synergistic effect when the MS condition alone was of such a magnitude to render claimant unemployable. Hill v The Boeing Company, DOLIR 11-4-10
ALJ: Ottenad
Atty: Gault
Experts: Cohen, Kramer
Treaters: Dr. Ma, Dr. Kos
Claimant established he was unemployable but did not prevail in a PTD claim against the Fund due to post-accident worsening of orthopedic injuries. In addition he developed other serious non-occupational medical conditions. Claimant was unable to participate in the hearing because he was in hospice for stage four medical condition. Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014).
ALJ: Landolt
Atty: Monticello, Hudson
Experts: Cohen, Pelikan, England
Statute of Limitations
A "claim" for purposes of reviewing a statute of limitations defense under 287.430 includes both a claim for compensation and a settlement, according to the western court of appeals, finding a claim against the second injury fund filed within a year after a settlement with the employer was timely. The decision follows a similar interpretation in 2009 in the Eastern District. The case is Treasurer of the State of Missouri v Phillip Cook, WD 72019 (Mo. App. 10-26-10). The court found the Fund's attempt to base its argument based on dictum is not persuasive. The Commission reversed an initial denial based on the SOL defense.
The second injury fund argued the award for PTD in a 2003 case was not supported by substantial evidence, but offered no evidence from any vocational or medical experts to rebut testimony from Dr. Stuckemeyer and Mary Titterington. Claimant was 64-years old and had an 8th grade education and the Commission found claimant not employable in the open labor market based on his primary settled injury involving a 20% right shoulder and prior conditions rated by Dr. Stuckmeyer for the same shoulder, the left shoulder, plantar fasciitis, back, and a heart problem. How these earlier conditions impaired claimant's capacity to work beyond limits from his education and age is not entirely clear in the opinion. The court deferred to the Commission that claimant was credible that attempts to return to work were a "real struggle" and that claimant's return to work after his primary work injury was not decisive whether or not he could compete in the open labor market.
The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, ED 92457 (Mo. App. 12-1-09). The court further rejected the Second Injury's Fund defense under the statute of limitations and found a "claim" was not always a WC-21 claim form, but could also be construed to mean the settlement itself for purposes of starting application of the 24 month statute of limitations. Claimant did not file a claim until 26 months after the original accident date.
In Cook v Calmar, DOLIR 1-14-10, the Commission followed Grubbs and reversed a denial of benefits, based on the same SOL defense when the claimant filed a claim against the fund 1 month after settling the case against the employer. The Fund produced no other medical or vocational evidence, to contest the claim, and ultimate award, for permanent and total disability arising from a 2003 accident.
Unjust enrichment
The claimant was awarded $254,700.20 in unpaid medical bills following two months of treatment for lung and head injuries as a result of falling off of a scaffold while working for an uninsured employer. The Fund did not raise any objections or offer any evidence at the hearing, but on appeal to the court of appeals disputes it should pay the award directly to claimant since the claimant might compromise the bills and use the balance as a windfall. The court clearly rejects the argument in Skinner v. Donna Morgan, SD No. 30019 (Mo. App. 3-8-10), finding strict construction and prior case law of Wilmeth v TMI Inc reject such a defense as unfounded and "conjuring a speculative scenario."
Appeal - failure to use exact statutory language in decision is not reversible error
Claimant injured his knee and sustained 15% new disability as a result of a meniscus tear, and received an award for permanent and total disability against the second injury fund because of prior conditions including multiple previous injuries to the same knee, the opposite leg and other conditions. The administrative law judge rejected opinions of Dr. Randolph who testified for the Fund that claimant never had any disability from his last accident and his impairment flowed from prior osteoarthritis. The Commission found evidence that claimant's last accident had caused a new 'medical condition', even though the administrative law judge did not use the phrase 'medical condition' in its findings. The court of appeals concluded that the failure to track the specific statutory language was not reversible error, and noted the Fund failed to provide any legal reasoning to support its proposition. Savage v Treasurer of Missouri as Custodian of Second Injury Fund, ED 93869 (Mo. App. 4-27-10).
No threshold amount
The commission modified an award against the second injury fund, increasing it from $18,180.60 to $23,539.33, finding claimant's primary foot injuries from standing on concrete synergistically combined with his prior asthma, sinusitis, and psychiatric issues to cause additional fund disability. The administrative law judge deemed such pre-existing conditions too minimal to award disability. Claimant, 38, had prior workers compensation settlements and pled claims against the second injury fund ranging from ringing ears to gastric issues. Claimant failed to prove repetitive trauma injury to his neck in a companion case when expert testimony was inconsistent with medical records. Dodson v von Hoffman Press, DOLIR 9-23-10
ALJ Fischer
Atty: Christiansen,
Experts: Lichtenfeld, Hogan
Tuesday, October 5, 2010
Trial stipulations limit scope of disputed issues
"New Evidence" denied on appeal for issues outside scope of stipulated issues
Claimant seems to argue after the hearing he discovered he needed new evidence on a necessary element of the case and attempted to introduce it on appeal under the rule to allow newly discovered evidence. The Commission rejected the idea and affirmed a denial of SIF benefits for wage loss.McDaniel v Furniture for Less, 2016 Mo WCLR Lexis 12 (Feb. 4, 2016).
The record noted that the parties stipulated that the claimant was an "employee" but never stipulated that the "employer" had sufficient numbers of employees to trigger fund benefits.
The Commission rejected the Fund's motion to dismiss the appeal for not complying with the regs to state specifically the reason the findings and conclusions were wrong. The Commission noted it allowed the appeal on the merit, but noted that the application only "minimally satisfied' the requirements.
ALJ Fischer
Stipulation to amount of TTD precludes appeal of issue by employer
The employer disputed TTD on appeal. The Commission indicated that the employer could not dispute the amount of TTD, based on any alleged miscalculation, if it had already stipulated to the lump sum at the beginning of the hearing. Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84 (June 18, 2014)
ALJ Denigan
Fail to raise issue of a credit from a prior settlement waives issue
Claimant fell and hurt her knee and received an award to her back for worsened back symptoms following her 2011 accident and use of a knee immobilize for several weeks. The Commission noted that claimant was trained as a nurse and jousted with the attorney to describe her many shades of pain including distinctions between discomfort, spasm, stabbing, pinching and radiating in a way no ordinary person would describe it. Harris v Columbia Staffing, MO WCLR Lexis 233 (December 19, 2013). The case is important regarding the scope of review and limits on a judge's powers based on stipulated issues. The employer asserted it was entitled to a credit from an award in Kansas against any PPD owed and the Kansas award was attached as part of the record. The Commission, however, reversed concerning finding of a credit and concluded the employer waived any right to a credit because it was not raised as a disputed issue. Further, the Commission found no stipulation that benefits had been paid pursuant to the earlier award. Similarly, the commission noted there had been no stipulation to the nature and extent of TTD, and it would not address the issue sua sponte when the issue had not been preserved on appeal. "Where no party has requested relief, we are reluctant to engage in the sua sponte action of enlarging the scope of issues on appeal. This is especially true in this case, where employer appears to agree that the administrative law judge determined the appropriate time period of temporary total disability."
ALJ Siedlik
Atty: Fox, Doyle, Seliga
Experts: McNamara, Egea
Stipulation of accident in answer binds employer
The employer admitted claimant had an accident at work going up some stairs and attempted to file an amended answer an hour after the hearing in a temporary award started. The ALJ found the employer was bound by its earlier admission, and that additional facts supported the finding of accident. In the case, the ALJ awarded treatment for a back, even though the experts disputed whether or not a herniation was present. Morris v Curators of the Univ. of Mo., 2013 MO WCLR Lexis 159 (August 22, 2013)
ALJ Dierkes
Atty: Kiefer, Floros
Experts: Robson, Chabot
Stipulation of accident undermines expert's opinion
The Commission reversed a denial of benefits to a 60 year old clerk who moved a desk in his job with the House of Representatives, described acute neck pain, and underwent a C5-C7 fusion which still left unresolved neck pain and radiculopathy. Connor v Mo House of Representatives, 2013 Mo WCLR Lexis 141 (August 7, 2013). The ALJ found claimant failed to prove causation when he did not obtain treatment for three months. The Commission essentially found the defense expert over-relied upon the absence of documented medical history to dispute accident as the employer had conceded accident as a stipulated issue. The Commission also a radiologist suggested that claimant had a traumatic injury.
ALJ: Fischer
Atty: Holwitt
Experts: Meyers, Reinsel
Treater: Byam
Stipulation alleviated obligation to prove synergy
In a fund case the SIF and pro se stipulated to disability but did not stipulate to synergy. The ALJ found
"Given the fact the primary and preexisting disabilities are to the upper extremities, and to different parts of the same extremity, I find there is sufficient evidence to establish that the combination of the disabilities is greater than the simple sum."
A dissenting commissioner found that the ALJ unsuccessfully attempted to solicit testimony from the pro se claimant to establish synergy as there was no medical evidence addressing the issue and considers the majority "ignoring reality" the claimant failed to establish this element of proof. Cassell v Dierbergs, DOLIR 6-27-2013.
ALJ Boresi.
Atty: pro se, Barnard
In a claim against the second injury fund for benefits, claimant agreed to waive any claim for PTD benefits in exchange for the Fund's agreement "not to contest" the synergistic effect between the prior injury and primary injury. The Commission denied benefits, in part, when claimant offered no evidence of synergy to prove the Fund claim and found an agreement "not to contest" was not the same as an agreement that synergy existed. Stipulations are controlling and conclusive and the courts are bound to enforce them. The dispute arose because the stipulation was not clear. The court of appeals found the Commission misconstrued the intent of the parties and the terms alleviated claimant of the obligation to produce additional evidence of synergy. The case was remanded on other grounds for the Commission to make a finding on the degree of pre-existing disability. Hutson v Treasurer of Missouri as Custodian for the second injury fund, 2012 Mo. App. Lexis 502 (ED April 17, 2012). On remand, the Commission found pre-existing impairment did not reach statutory thresholds to award fund benefits. 2012 Mo WCLR Lexis 114 (June 15, 2012).
In a Fund case, the ALJ erred in his finding that the Fund stipulated to a synergistic effect and the Commission reduced the award against the Fund from 80.64 to 18.6 weeks finding the award was "excessive." Jones v Special School District, 2012 MO WCLR Lexis 204 (December 6, 2012).
ALJ Denigan
Expert: Margolis
Claimant alleges the employer paid TTD benefits through December 2009, that the employer stipulated the MMI was October 2009, and the ALJ erroneously asserted a credit based on a finding of MMI in December 2007. The issue in this case is if the employer could assert a credit against PPD for over-paid TTD benefits. Claimant had a multi-level neck fusion in 2006 and a right shoulder surgery in 2007, but claimant underwent further MRI/arthrogram studies of the shoulder in approximately October 2009. The ALJ documents extensive pain management. The Commission found no stipulation existed on the date of MMI even though the employer stated that he "may think" that MMI was October 2009 because the testimony was not a "definitive stipulation." The ALJ ultimately found that claimant had a previous neck surgery, less than a year later he reinjured his neck and shoulder when he was jerked around in the cab of a scaler, and he sustained partial disability against the employer and total disability against the Fund. Prier v Doe Run Company, 2012 MoWCLR Lexis 174 (September 27, 2012). The takeaway from the case is a stipulation is not a stipulation unless parties call it a stipulation. The ALJ had allowed a stipulation that the claimant would testify in conformity with his statements to Dr. Volarich in lieu of re-opening the case.
ALJ Robbins
Atty: Lory, Seufert
Experts: Volarich, England,
Treaters: Boland, Hulsey, Guarino
A stipulation regarding PTD rate is controlling and conclusive, even though the Commission discussed other evidence such as a report of injury which might support a higher rate. Claimant was awarded PTD benefits against the Fund and proposed on appeal two different higher PTD rates although he stipulated to a lower rate at the hearing when he asserted there was no difference between the PPD and PTD rates. The ALJ left the record open for additional evidence and no evidence was presented to the Commission that the report of injury was unavailable at the time of the original hearing. Gilbert v Brundage Bone Concrete, 2012 Mo WCLR Lexis 163 (August 29, 2012)
ALJ Mahon
Atty Cummings
Experts Bennoch
A stipulation regarding disputed body parties is controlling and a party cannot add disputed body parts at trial when the issue is not identified prior to the hearing. Claimant asserts that the Commission wrongly denied him benefits for carpal tunnel arising from his use of crutches for a 2002 ankle fracture because he presented a causation opinion and ratings from his expert, Dr. Schlafly. Dr. Sudekum, the employer's expert, agreed with the diagnosis of bilateral carpal tunnel syndrome but attributed the condition to arthritis. The court of appeals stated that injuries to a specific body part must be presented to the ALJ. The court reports that claimant pled injuries to the "neck, wrists and ankles" as a result of a 2002 accident and introduced medical evidence to litigate the issue but the Commission properly denied benefits to the left wrist because claimant "did not claim injury to his right wrist before the ALJ, but only specifically to his left wrist, caused by the April 27, 2002 work accident. He did allege on review to the Commission that he had bilateral carpal tunnel syndrome that had not resolved, and therefore was disabled in both wrists. "
The court of appeals in Poole v City of St. Louis, ED 94052 (Mo. App. 10-5-10), affirmed the Commission's denial of permanent and total disability benefits, but remanded on a denial of future medical care because the Commission summarily denied future medical care without explanation and did not distinguish between Dr. Volarich's opinions for future medical care for radicular pain (found caused by a subsequent accident moving a mattress) and care for "back pain syndrome" that might be work related.
The ALJ erred awarded a higher load factor than stipulated by the parties. Neff v Fulton State Hospital, 2011 MO WCLR Lexis 247.
ALJ Zerrer
Atty: Kieffer
The ALJ lacked authority to decide "accident" when both parties stipulated to existence of an accident. McCoun v OPAA, 2012 Mo. WCLR Lexis 6 (2-1-12)
ALJ Allen
The ALJ erred find a disputed issue when the parties stipulated to occupational disease for an employee who installed floors for 9 years. Vance v Blake Flooring, 2009 MO WCLR Lexis 108.
ALJ Vacca
Disfigurement award affirmed when claimant showed scar to judge, but disfigurement was not a stipulated issue. McDonald v Bi-State Development Agency, 2009 MO WCLR Lexis 180.
ALJ Vacca
A stipulation or finding of disability of MMI must be consistent with the records. For example, a finding that PTD disability occurred when the employer closed its plant in 2000 was not consistent when claimant continued to treat for another 4 years and the parties stipulated to 2004 as the correct date. Gruendler, ec. v Union Camp Corp., 2010 MO WCLR Lexis 127.
ALJ Hart
A stipulation must include the amount of prior disability. In one case the parties stipulated to a settlement in Kansas of $60,000 but not the prior percentage of disability, and the ALJ independently found 30% prior disability resulting in a different starting date for SIF benefits. Mayse v Jeff Honor Roofing, 2011 MO WCLR Lexis 19.
ALJ Magruder
Claimant seems to argue after the hearing he discovered he needed new evidence on a necessary element of the case and attempted to introduce it on appeal under the rule to allow newly discovered evidence. The Commission rejected the idea and affirmed a denial of SIF benefits for wage loss.McDaniel v Furniture for Less, 2016 Mo WCLR Lexis 12 (Feb. 4, 2016).
The record noted that the parties stipulated that the claimant was an "employee" but never stipulated that the "employer" had sufficient numbers of employees to trigger fund benefits.
The Commission rejected the Fund's motion to dismiss the appeal for not complying with the regs to state specifically the reason the findings and conclusions were wrong. The Commission noted it allowed the appeal on the merit, but noted that the application only "minimally satisfied' the requirements.
ALJ Fischer
Stipulation to amount of TTD precludes appeal of issue by employer
The employer disputed TTD on appeal. The Commission indicated that the employer could not dispute the amount of TTD, based on any alleged miscalculation, if it had already stipulated to the lump sum at the beginning of the hearing. Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84 (June 18, 2014)
ALJ Denigan
Fail to raise issue of a credit from a prior settlement waives issue
Claimant fell and hurt her knee and received an award to her back for worsened back symptoms following her 2011 accident and use of a knee immobilize for several weeks. The Commission noted that claimant was trained as a nurse and jousted with the attorney to describe her many shades of pain including distinctions between discomfort, spasm, stabbing, pinching and radiating in a way no ordinary person would describe it. Harris v Columbia Staffing, MO WCLR Lexis 233 (December 19, 2013). The case is important regarding the scope of review and limits on a judge's powers based on stipulated issues. The employer asserted it was entitled to a credit from an award in Kansas against any PPD owed and the Kansas award was attached as part of the record. The Commission, however, reversed concerning finding of a credit and concluded the employer waived any right to a credit because it was not raised as a disputed issue. Further, the Commission found no stipulation that benefits had been paid pursuant to the earlier award. Similarly, the commission noted there had been no stipulation to the nature and extent of TTD, and it would not address the issue sua sponte when the issue had not been preserved on appeal. "Where no party has requested relief, we are reluctant to engage in the sua sponte action of enlarging the scope of issues on appeal. This is especially true in this case, where employer appears to agree that the administrative law judge determined the appropriate time period of temporary total disability."
ALJ Siedlik
Atty: Fox, Doyle, Seliga
Experts: McNamara, Egea
Stipulation of accident in answer binds employer
The employer admitted claimant had an accident at work going up some stairs and attempted to file an amended answer an hour after the hearing in a temporary award started. The ALJ found the employer was bound by its earlier admission, and that additional facts supported the finding of accident. In the case, the ALJ awarded treatment for a back, even though the experts disputed whether or not a herniation was present. Morris v Curators of the Univ. of Mo., 2013 MO WCLR Lexis 159 (August 22, 2013)
ALJ Dierkes
Atty: Kiefer, Floros
Experts: Robson, Chabot
Stipulation of accident undermines expert's opinion
The Commission reversed a denial of benefits to a 60 year old clerk who moved a desk in his job with the House of Representatives, described acute neck pain, and underwent a C5-C7 fusion which still left unresolved neck pain and radiculopathy. Connor v Mo House of Representatives, 2013 Mo WCLR Lexis 141 (August 7, 2013). The ALJ found claimant failed to prove causation when he did not obtain treatment for three months. The Commission essentially found the defense expert over-relied upon the absence of documented medical history to dispute accident as the employer had conceded accident as a stipulated issue. The Commission also a radiologist suggested that claimant had a traumatic injury.
ALJ: Fischer
Atty: Holwitt
Experts: Meyers, Reinsel
Treater: Byam
Stipulation alleviated obligation to prove synergy
In a fund case the SIF and pro se stipulated to disability but did not stipulate to synergy. The ALJ found
"Given the fact the primary and preexisting disabilities are to the upper extremities, and to different parts of the same extremity, I find there is sufficient evidence to establish that the combination of the disabilities is greater than the simple sum."
A dissenting commissioner found that the ALJ unsuccessfully attempted to solicit testimony from the pro se claimant to establish synergy as there was no medical evidence addressing the issue and considers the majority "ignoring reality" the claimant failed to establish this element of proof. Cassell v Dierbergs, DOLIR 6-27-2013.
ALJ Boresi.
Atty: pro se, Barnard
In a claim against the second injury fund for benefits, claimant agreed to waive any claim for PTD benefits in exchange for the Fund's agreement "not to contest" the synergistic effect between the prior injury and primary injury. The Commission denied benefits, in part, when claimant offered no evidence of synergy to prove the Fund claim and found an agreement "not to contest" was not the same as an agreement that synergy existed. Stipulations are controlling and conclusive and the courts are bound to enforce them. The dispute arose because the stipulation was not clear. The court of appeals found the Commission misconstrued the intent of the parties and the terms alleviated claimant of the obligation to produce additional evidence of synergy. The case was remanded on other grounds for the Commission to make a finding on the degree of pre-existing disability. Hutson v Treasurer of Missouri as Custodian for the second injury fund, 2012 Mo. App. Lexis 502 (ED April 17, 2012). On remand, the Commission found pre-existing impairment did not reach statutory thresholds to award fund benefits. 2012 Mo WCLR Lexis 114 (June 15, 2012).
In a Fund case, the ALJ erred in his finding that the Fund stipulated to a synergistic effect and the Commission reduced the award against the Fund from 80.64 to 18.6 weeks finding the award was "excessive." Jones v Special School District, 2012 MO WCLR Lexis 204 (December 6, 2012).
ALJ Denigan
Expert: Margolis
Claimant alleges the employer paid TTD benefits through December 2009, that the employer stipulated the MMI was October 2009, and the ALJ erroneously asserted a credit based on a finding of MMI in December 2007. The issue in this case is if the employer could assert a credit against PPD for over-paid TTD benefits. Claimant had a multi-level neck fusion in 2006 and a right shoulder surgery in 2007, but claimant underwent further MRI/arthrogram studies of the shoulder in approximately October 2009. The ALJ documents extensive pain management. The Commission found no stipulation existed on the date of MMI even though the employer stated that he "may think" that MMI was October 2009 because the testimony was not a "definitive stipulation." The ALJ ultimately found that claimant had a previous neck surgery, less than a year later he reinjured his neck and shoulder when he was jerked around in the cab of a scaler, and he sustained partial disability against the employer and total disability against the Fund. Prier v Doe Run Company, 2012 MoWCLR Lexis 174 (September 27, 2012). The takeaway from the case is a stipulation is not a stipulation unless parties call it a stipulation. The ALJ had allowed a stipulation that the claimant would testify in conformity with his statements to Dr. Volarich in lieu of re-opening the case.
ALJ Robbins
Atty: Lory, Seufert
Experts: Volarich, England,
Treaters: Boland, Hulsey, Guarino
A stipulation regarding PTD rate is controlling and conclusive, even though the Commission discussed other evidence such as a report of injury which might support a higher rate. Claimant was awarded PTD benefits against the Fund and proposed on appeal two different higher PTD rates although he stipulated to a lower rate at the hearing when he asserted there was no difference between the PPD and PTD rates. The ALJ left the record open for additional evidence and no evidence was presented to the Commission that the report of injury was unavailable at the time of the original hearing. Gilbert v Brundage Bone Concrete, 2012 Mo WCLR Lexis 163 (August 29, 2012)
ALJ Mahon
Atty Cummings
Experts Bennoch
A stipulation regarding disputed body parties is controlling and a party cannot add disputed body parts at trial when the issue is not identified prior to the hearing. Claimant asserts that the Commission wrongly denied him benefits for carpal tunnel arising from his use of crutches for a 2002 ankle fracture because he presented a causation opinion and ratings from his expert, Dr. Schlafly. Dr. Sudekum, the employer's expert, agreed with the diagnosis of bilateral carpal tunnel syndrome but attributed the condition to arthritis. The court of appeals stated that injuries to a specific body part must be presented to the ALJ. The court reports that claimant pled injuries to the "neck, wrists and ankles" as a result of a 2002 accident and introduced medical evidence to litigate the issue but the Commission properly denied benefits to the left wrist because claimant "did not claim injury to his right wrist before the ALJ, but only specifically to his left wrist, caused by the April 27, 2002 work accident. He did allege on review to the Commission that he had bilateral carpal tunnel syndrome that had not resolved, and therefore was disabled in both wrists. "
The court of appeals in Poole v City of St. Louis, ED 94052 (Mo. App. 10-5-10), affirmed the Commission's denial of permanent and total disability benefits, but remanded on a denial of future medical care because the Commission summarily denied future medical care without explanation and did not distinguish between Dr. Volarich's opinions for future medical care for radicular pain (found caused by a subsequent accident moving a mattress) and care for "back pain syndrome" that might be work related.
The ALJ erred awarded a higher load factor than stipulated by the parties. Neff v Fulton State Hospital, 2011 MO WCLR Lexis 247.
ALJ Zerrer
Atty: Kieffer
The ALJ lacked authority to decide "accident" when both parties stipulated to existence of an accident. McCoun v OPAA, 2012 Mo. WCLR Lexis 6 (2-1-12)
ALJ Allen
The ALJ erred find a disputed issue when the parties stipulated to occupational disease for an employee who installed floors for 9 years. Vance v Blake Flooring, 2009 MO WCLR Lexis 108.
ALJ Vacca
Disfigurement award affirmed when claimant showed scar to judge, but disfigurement was not a stipulated issue. McDonald v Bi-State Development Agency, 2009 MO WCLR Lexis 180.
ALJ Vacca
A stipulation or finding of disability of MMI must be consistent with the records. For example, a finding that PTD disability occurred when the employer closed its plant in 2000 was not consistent when claimant continued to treat for another 4 years and the parties stipulated to 2004 as the correct date. Gruendler, ec. v Union Camp Corp., 2010 MO WCLR Lexis 127.
ALJ Hart
A stipulation must include the amount of prior disability. In one case the parties stipulated to a settlement in Kansas of $60,000 but not the prior percentage of disability, and the ALJ independently found 30% prior disability resulting in a different starting date for SIF benefits. Mayse v Jeff Honor Roofing, 2011 MO WCLR Lexis 19.
ALJ Magruder
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