Case
Law Update - January 2014 - March 2014
MISSOURI
WORKERS’COMPENSATION
CASE LAW UPDATE
JANUARY 2014 –
MARCH 2014
Court Defers to
Commission on Credibility and Findings of Fact
Maness
v. City of De Soto and Treasurer of Missouri, Case No. ED100074 (Mo.
App. 2014)
FACTS:
The claimant worked as a supervisor performing maintenance for the employer’s
water, street, sewer, and parks department. On June 14, 2007, the claimant gave
his supervisor a report stating that he injured his neck moving decorative
concrete stones three days prior on June 11, 2007. Each of the three doctors
who evaluated the claimant stated that he reported to them that his injury
occurred on or about June 11th. During the hearing, the claimant
admitted that the employer’s time records showed he did not actually work on
June 11th, but he insisted that he must have just been mistaken as
to the dates, and was in fact injured on or about June 11, 2007. The ALJ
awarded compensation.
On
appeal, the Commission modified the ALJ’s award, but affirmed in finding for
the claimant. The employer appealed arguing that the Commission erred in
finding that the claimant sustained an accident on June 11, 2007 because the
finding was not supported by competent and substantial evidence. Specifically,
the employer alleged that the claimant’s testimony was not credible because it
conflicted with statements the claimant made to doctors about the incident and
because time records of the employer showed that he did not work on June 11th.
HOLDING:
On appeal, the court affirmed and ruled in favor of the claimant, finding
that the employer’s argument was merely a challenge to the weight of evidence
and the claimant’s credibility as a witness. The court stated that because it
defers to the Commission on findings of fact, credibility of witnesses, and
weight to be given to conflicting evidence, it must affirm the Commission’s
decision.
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If Claimant is Placed at
MMI and Continues to Treat the Issue of When Claimant Actually
was or is at MMI can be Disputed
Hoven
v. Treasurer of State of Missouri, Case No. ED98842 (Mo. App.
2014)
FACTS:
In 2004, the claimant filed a claim for carpal tunnel syndrome. He had a
subsequent work-related right knee injury in September 2007. With respect to
the 2004 claim, the claimant was evaluated by Dr. Crandall in November 2007, at
which time the doctor placed him at MMI and assessed 5% disability to the right
wrist. The claimant settled his claim
with the employer and then proceeded to a hearing against the Second Injury
Fund (‘SIF’). After he was released by Dr. Crandall at MMI in November 2007 he
underwent two additional surgeries in 2009 with Dr. Schlafly, who believed that
the claimant had not yet reached MMI.
At a
hearing, the claimant argued that he was entitled to compensation from the SIF
with respect to his wrists because Dr. Crandall opined that he had reached MMI,
and his settlement with the employer stated he was at MMI. The ALJ determined the claimant was at MMI,
and therefore was entitled to recover from the SIF. However, the Commission reversed and found
for the SIF. The claimant appealed.
HOLDING:
The court affirmed the Commission’s decision, finding that in order to receive
compensation from the SIF, the claimant must first prove that he had a
compensable injury that resulted in PPD.
The Commission determined that the claimant did not have PPD because he
was not at MMI. The court also found that the settlement agreement between the
employer and the claimant did not establish that the claimant was MMI for
purposes of this case because the SIF was not a party to the settlement
agreement. Finally, the Court noted that Dr. Schlafly opined that the claimant
had not yet reached MMI following the surgeries in 2009. In essence, the Court held that if a claimant
is placed at MMI for a particular injury but then has subsequent medical procedures
on that same body part, the issue of whether the claimant has reached MMI may
again become an open question.
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Claimant
Not PTD Prior to Last Injury Because Could Compete in Open Labor Market
Without
Any Accommodation
Stewart
v. Treasurer of the State of Missouri, Case No. SD32827 (Mo. App. 2014)
FACTS:
The claimant sustained an injury while working for the employer in early
2009. After a hearing, and a subsequent
appeal, the Commission found that the claimant was PTD following the work
injury. The SIF appealed arguing that the claimant was PTD even before the work
injury and therefore, the SIF should not be liable. The claimant’s medical history included
arthritis, reflex sympathetic dystrophy, degenerative joint and bone disease,
carpal tunnel syndrome, and a host of other maladies. The claimant qualified
for SSD in 1997. Thereafter, the claimant worked sporadically, a total of 29
months over 11 years, at five different part-time jobs. The claimant was able to perform all of her
occupational duties without accommodation until the injury in 2009. The Commission found that the claimant’s
ability to compete on the open job market prior to her 2009 injury precluded a
finding of PTD before working for the employer.
HOLDING:
The Court affirmed the Commission’s finding that the claimant was not PTD prior
to her work injury. The Court was
particularly persuaded by the fact that the claimant had competed for and won
all of her jobs in the open labor market prior to her work injury. Additionally, the Court noted that the
claimant worked these jobs without any accommodation. Thus, the Court found that the Commission did
not err in finding the claimant was not PTD prior to her work injury because
she was able to compete on the open labor market without any accommodation.
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Claim
Compensable When Claimant Tripped and Fell While Walking Across Street
Dorris
v. Stoddard County, Case No. SD32830 (Mo. App. 2014)
FACTS:
The claimant worked in the employer’s collector’s office. While a new office building was being built,
the claimant’s supervisor asked her to go over to the new building and inspect
the counter tops that were being installed. As she was crossing the street to
reach the new building, she tripped and fell causing a torn rotator cuff. She was on the clock at the time of her
injury. The employer denied the claim arguing that the injury did not occur in
the course and scope of her employment. The ALJ found the injury compensable
and the Commission affirmed the decision. The employer appealed.
HOLDING:
The Court affirmed the Commission’s ruling, finding that the claimant was
within the scope of her employment when she was injured. The Court noted that in order to demonstrate
the injury arose out of employment, the claimant must show a causal connection
between the injury and her work activity.
In this case, the Court noted that because she was crossing the street
at her supervisor’s behest and because she was on the clock when the accident
occurred, she was within the scope of her employment.
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Claimant
PTD Because Credibly Testified That Needed to Recline Frequently Throughout
Day
to Relieve Pain
Ballard
v. Woods Supermarkets, Inc., Case No. SD32590 (Mo. App. 2014)
FACTS:
While working for her employer, the claimant slipped and fell on grease
causing her to land on her back and left arm.
As a result of the accident, the claimant was diagnosed with a
comminuted distal left radius fracture, disc herniations at L4-5 and L5-S1, and
strain/sprain of her cervical and thoracic spine. The employer sent the claimant to Dr.
Woodward for an IME. The claimant’s attorney obtained a report from Dr. Koprivica. Dr. Koprivica diagnosed failed laminectomy
syndrome and stated that the claimant needed to recline frequently in order to
reduce and cope with the pain.
At
a hearing, the ALJ found the testimony of Dr. Koprivica and the claimant
credible. Consequently, the ALJ found that the claimant needed to recline for
at least 30 minutes several times a day to cope with the pain. Based on this restriction, the ALJ determined
that the claimant was unable to compete in the open labor market and found her
PTD. The employer appealed to the Commission, which affirmed. The employer again appealed, arguing that the
ALJ erroneously concluded that the claimant needed to recline throughout the
day because that conclusion was based on Dr. Koprivica’s subjective medical
findings and not based on objective medical findings.
HOLDING:
The court noted that there is no objective test for pain and that the extent to
which a claimant experiences pain is a credibility determination for the
Commission to decide. Thus, the Court found that assessing pain is inherently
subjective, and therefore, Dr. Koprivica’s opinion qualified as competent and
substantial evidence that the Commission may justifiably base their decision
on.
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Employer
Responsible for All Past Medical Expenses Reasonably Required to Cure and
Relieve
Effects of Work Injury
Downing
v. McDonald’s Sirloin Stockade, Case No. SD32683 (Mo. App. 2014)
FACTS:
The claimant worked as a waitress for the employer from 1985 until 2007. She first began to experience back pain in
2005 and sought treatment from her own chiropractor. The claimant’s chiropractor eventually
determined that an MRI was needed. The
claimant then spoke with the employer, at which time the employer suggested
that she seek treatment through workers’ compensation. However, a claims
representative at the insurer spoke with the employer and advised that they
would be denying the claim because they did not feel that the claimant suffered
a compensable injury. Nonetheless, the
employer referred the claimant to Dr. Ipsen, who ordered an MRI to determine if
surgery was necessary. The claims representative authorized the MRI, which
revealed disc degeneration at L5-S1, as well as a large extrusion causing
impingement on the right S1 nerve root.
Dr. Ipsen subsequently scheduled surgery. However, the claims
representative told the claimant that the surgery was not authorized because
more information was needed. Nevertheless, the claimant took out a loan and
underwent surgery as scheduled.
Following
surgery, the claimant filed a Claim and at a hearing the ALJ found in favor of
claimant and awarded her unpaid medical expenses, TTD, and PPD. However, the
ALJ did not award the claimant the cost of the two surgeries she had paid for
with the loan. The claimant appealed and
the Commission modified the Award to include past medical benefits for the two
surgeries. The employer then appealed
arguing that the Commission should not have awarded past medical benefits for
the surgeries because the medical expenses were not authorized and the
treatment was not needed on an emergency basis.
HOLDING:
The Court first noted that the statute requires an employer to provide medical
treatment that may be reasonably required to Acure
and relieve’ the effects of the injury.
The Court went on to say that the statute has been interpreted to mean
that if an employer wrongly refuses requested treatment, the employer will be
liable for medical treatment obtained at the claimant’s own expense. Therefore,
the Court affirmed the Commission’s ruling, holding that the employer was
responsible for reasonable and necessary medical expenses regardless of whether
or not they were authorized by the insurer.
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Claimant
Not PTD Prior to Work Injury
Scott
v. Treasurer of the State of Missouri, Case No. WD76602 (Mo. App. 2014)
FACTS:
The claimant worked operating heavy equipment and doing excavation work on a
contract basis. Eventually, the claimant
incorporated his business under the name Gary Scott Excavating, and was an
employee of this business. Due to the claimant’s troubles with reading, a
hearing problem, and a ninth grade education, most of the administrative
bookkeeping and paperwork of the company was handled by his brother, wife, or
other employees. The claimant had numerous injuries throughout his career. In 1998, he had right rotator cuff
repair. In 2001, he fell from a grain
bin fracturing his right leg, right foot, and left foot. In 2004, he had bilateral carpal tunnel
releases. In 2006, he had colon surgery,
and in 2007, he was diagnosed with arthritis. On January 11, 2008, the claimant
had this work related injury, at which time he injured his back while operating
a bulldozer. Due to the back injury, the
claimant saw Dr. Reintjes who performed back surgery. On October 29, 2008, Dr. Reintjes found that
the claimant had reached MMI and gave him a 50 pound lifting restriction. The
claimant also received treatment for his back from Dr. Scott. While treating for his back condition, Dr.
Scott diagnosed two hernias, which were surgically repaired.
The
claimant returned to work operating machinery and supervising his employees,
but limited how much lifting and vehicle maintenance work he did. On December
3, 2009, he was attempting to install a battery in a piece of equipment when he
injured his chest and right shoulder. He
was eventually released to return to work with restrictions of no lifting over
50 pounds and no repetitive lifting or reaching above the shoulder. Fearful of re-injuring his shoulder, he
stopped working after the 2009 injury.
He
filed claims against his employer and the SIF for the hernias, the back injury,
and the chest and shoulder injuries. He
settled all claims with the employer. He went to a hearing against the SIF for
the 2008 back injury and the 2009 shoulder injury. At the hearing, the ALJ found that the
claimant was PTD prior to both injuries, and therefore, the SIF was not liable
for any benefits. The ALJ was persuaded by claimant’s testimony that Dr. Scott
had told him to stop working in 2007.
The ALJ also cited vocational expert, Mr. Dreiling’s testimony, that
although the claimant was able to return to work after his 2008 and 2009
injuries, he was only able to do so because he self-accommodated by only
supervising employees and such accommodation would not be made elsewhere.
Therefore, the claimant was unable to compete on the open labor market. The
claimant appealed to the Commission who adopted and affirmed the decision of
the ALJ. The claimant appealed.
HOLDING:
The Court reversed the Commission’s decision and remanded for further
findings. The Court held that the Commission’s decision was not supported by
substantial and competent evidence and was against the overwhelming weight of
the evidence. The Court noted that after
his injuries, the claimant resumed lifting, loading, and vehicle maintenance
duties, and would operate pieces of heavy equipment for as much as 8 to 12
hours a day. Thus, the Commission erred
in determining that the claimant’s sole function was overseeing the work of
other employees. Additionally, the Court noted that there were no doctors’
opinions stating that the claimant needed to stop working prior to the 2008 and
2009 injuries. More specifically, the Court noted that the Commission erred in
determining that Dr. Scott advised the claimant to stop his workload in 2007
because he did not see Dr. Scott until after his 2008 back injury. Finally, the Court noted that the vocational
expert, Mr. Dreiling, testified that it was only after the claimant’s back
surgery in 2008 that he stopped performing the heavier physical lifting
activities at work and needed to be accommodated.
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Claimants
are Not Entitled to Pre-Judgment Interest
Harrah
v. Tour St. Louis, Case No. ED100185 (Mo. App. 2014)
FACTS:
The claimant was injured in a motor vehicle accident while working as a bus
driver. At the time of the injury, the
employer did not carry workers’ compensation liability insurance. Consequently, the claimant sought medical
treatment on her own, and as a result of that treatment, incurred over
$150,000.00 in past medical expenses.
Following a hearing, the ALJ found the employer and the SIF liable for
the claimant’s past medical expenses. Additionally, the ALJ declined to award
prejudgment interest on medical expenses to the claimant. The Commission affirmed the ALJ’s
decision. The claimant appealed from the
Commission, arguing that she was entitled to prejudgment interest on her
medical expenses.
HOLDING:
The court upheld the decision of the Commission and found that prejudgment
interest on medical expenses is not recoverable based on the new strict
construction standard.
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Must
First Look to Last Injury Alone to Determine Whether SIF or Employer is
Responsible
for PTD Benefits
Blackshear
v. Adecco, Case No. ED100251 (Mo. App. 2014)
FACTS:
The claimant sustained injuries to her back and legs and brought a claim
against the employer and the SIF. Both
the employer and the SIF agreed that the claimant was PTD, but they disagreed
about who was responsible for the PTD benefits. The ALJ concluded that the
claimant’s last injury alone rendered him PTD. Therefore, the employer was
responsible for benefits, not the SIF. The employer appealed. The Commission
modified the ALJ’s Award finding that the claimant’s disability was a
combination of a pre-existing psychiatric condition and the primary injury.
Specifically, the Commission found that the primary injury caused 85% of the
claimant’s PPD, and that the claimant also had a pre-existing disability
resulting from her psychiatric conditions. The Commission determined that the
claimant was entitled to recover PTD benefits from the SIF because her
disability resulted from a combination of her pre-existing conditions and the
primary injury. The SIF appealed,
arguing that the Commission erred in allocating PTD liability to the SIF
because the Commission did not first determine whether the primary injury alone
resulted in PTD.
HOLDING:
The Court agreed with the SIF’s assertion that the first inquiry is the degree
of disability incurred from the last injury. Additionally, the Court agreed
that if the claimant’s last injury in and of itself rendered the claimant PTD,
then the SIF has no liability and the employer is responsible for the entire
amount. However, the Court noted that
the Commission found that the last injury had caused 85% PPD and that the
claimant was not PTD as a result of the primary injury alone. Thus, the
Commission correctly followed procedure by first evaluating the amount of
disability resulting from the last injury alone and therefore, the SIF’s
liability for PTD benefits is affirmed.
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Credibility
is Determination of Commission
Payne
v. Treasurer of the State of Missouri, Case No. SD3254174 (Mo. App.
2014)
FACTS:
The claimant worked as a truck driver for employer. On December 24, 2004, the claimant tripped and
fell on ice while at a truck stop, injuring his back and both of his shoulders.
He was diagnosed with bilateral rotator cuff injuries. The claimant also had
several pre-existing conditions including heart problems, diabetes, and sleep
apnea. Following the 2004 work injury,
the claimant saw Dr. Bennoch who issued a report in May 2010 finding him PTD
due to the effects of the 2004 work injury alone. At Dr. Bennoch’s deposition, he opined that
the claimant was PTD as a result of both his work related injury and his
pre-existing medical issues. The claimant was also evaluated by a vocational
rehabilitation counselor, Ms. Titterington, who opined that the claimant had transferrable
job skills and therefore, was not PTD.
A
hearing was held, at which time both Dr. Bennoch and Ms. Titterington testified
live. During the hearing, Dr. Bennoch testified that the claimant’s work injury
alone was enough to make him PTD. Ms.
Titterington’s testimony was consistent with her prior statements, asserting
that the claimant was not PTD. The ALJ ruled in favor of claimant finding that
he was PTD as result of the 2004 work injury and his pre-existing
conditions. The SIF appealed arguing
that the ALJ’s finding that the claimant was PTD did not comport with his
pursuit of full time, regular employment.
The Commission amended the ALJ’s ruling, finding that although the
claimant did have pre-existing disabilities, he was PTD as a result of the work
injury alone. The claimant appealed
arguing that the SIF was prevented from arguing that the claimant was PTD as a
result of the last injury alone because the SIF had previously argued at the
hearing and in its Application for Review that the claimant was not PTD. The claimant also argued that the Commission’s
finding was against the weight of the evidence because it found Dr. Bennoch’s
testimony to be most credible.
HOLDING:
The Court began by noting that when the SIF appealed the ALJ’s finding that it
was liable for PTD benefits, it triggered the Commission’s duty to first
determine the degree of disability resulting from the last injury alone. Thus,
the Commission was allowed to find that the claimant was PTD as a result of the
work injury alone, regardless of whether the SIF requested or argued for such a
finding. The Court then focused on the
claimant’s next argument B
that the Commission’s finding was not supported by substantial and competent
evidence. The Court stated that when the evidence before the Commission would
warrant either of two findings, the Court is bound by the Commission’s
determination. Thus, the Court affirmed the Commission’s decision, noting that
the credibility of experts is to be determined by the Commission.
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Claim
Compensable When Claimant Walking Across Parking Lot to Take Trash Out and
Smoke
Cigarette
In
Glenda Hunter v. Benchmark Healthcare of Harrisonville, Injury
No. 13-021747, the claimant, a housekeeper, was walking across the employer’s
parking lot when she slipped and fell, sustaining an injury on February 28,
2013. The claimant testified that she fell when she walked out the door of the
facility while carrying trash. She was walking with another co-employee and
they were planning on taking a smoke break. The dumpster was located in close
proximity to the shed, which was built for employees to smoke cigarettes.
Employees were allowed to smoke in the shed without clocking out and on a
scheduled break. The claimant planned to clock out for her lunch break shortly
after returning from the smoking shed. There were some inconsistencies with
respect to the claimant’s testimony and the other employee’s testimony as the
co-employee was not sure when the claimant fell and whether he was carrying the
trash or the claimant actually had the trash in her hand.
In
any event, the ALJ found the claimant credible and the claim compensable. He
noted that the employer required employees to smoke in a designated shed and
did not require the employees to clock out. Also, the employer had ownership
and control of the parking lot. Furthermore, the claimant was exposed to the
risk due to the placement of the dumpster and the instructions of her employer
to smoke in a designated area, which required her to cross an icy lot. The ALJ
further noted that whether or not the claimant was injured going to the
dumpster or coming back from a smoke break is not material. The fact that she
smoked a cigarette in the shed by the dumpster does not impact the analysis as
she would be required to cross the same parking lot to return to work. The
Commission affirmed the Award of the ALJ.
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Claimant
Gave Proper Notice When Filed Claim Prior to Diagnostician Connecting
Condition
to Job Duties
In
Tamara Lynn v. McClelland Marketing, Inc., Injury No. 10-111727,
the claimant worked for the employer as an office assistant and her job duties
included data entry, filing and customer service. She estimated that she typed
on the computer for about 5 - 6 hours per day, but acknowledged that this task
was interrupted by other duties such as answering phones and handling boxes of
files. In 2008 or 2009 she began developing symptoms of carpal tunnel syndrome
and in December 2010 she sought treatment on her own. She underwent carpal
tunnel releases with Dr. Schlafly in April and May 2011. She filed a Claim for
Compensation on May 31, 2011. Thereafter she saw Dr. Berkin, who connected her
symptoms to her job duties. The employer sent the claimant to Dr. Rende, who
also connected the claimant’s symptoms to her job duties. The ALJ, of course,
found that the claimant’s condition was work-related. However, he found that
the claim was barred as the claimant did not provide the employer with proper
notice.
The
Commission reversed the decision of the ALJ finding that the employer was given
proper notice. The Commission noted that a person cannot be diagnosed with an
occupational disease or repetitive trauma until a diagnostician makes a causal
connection between the underlying medical condition and some work-related
activity or exposure. The Commission noted that in this case, the claimant’s
condition was not connected to her job duties until she saw Dr. Berkin on
August 31, 2011. In light of the fact that she filed her Claim on May 31, 2011,
prior to a diagnostician connecting her condition to work, the claimant gave
timely notice and her claim was not barred.
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Claim
Denied Because Claimant’s Testimony Was Inconsistent With Medical Records and
Claimant
Had History of Prior and Subsequent Injuries
In
David Luka v. FedEx Ground, Injury No. 10-101154, the claimant
worked for the employer as a tech specialist. On July 14, 2010 he was working
with a co-worker repairing a conveyor belt, at which time he heard a snap and
felt a sharp pain in his lower back. He did not report his accident to the
employer because he was concerned about his job. He testified that the next day
he went to his family physician and advised that he possibly hurt his back at
work but asked the doctor not to mention his low back pain in his chart, as he
was not sure whether he wanted to pursue workers’ compensation benefits. He
continued to undergo conservative treatment. He was off work and received
short-term disability benefits. When he returned to work on December 3, 2010,
he sustained another injury and he testified that his low back condition
permanently worsened. The first mention of the July 14, 2010 work injury was in
the medical records of Dr. O’Boynick, dated December 6, 2010, five months after
the date of injury. Dr. Hopkins, the claimant’s expert, testified that the work
injury on July 14, 2010 was the prevailing factor in causing his condition. Dr.
Bailey, the employer’s expert, diagnosed degenerative disc disease and opined
that the accident of July 14, 2010 was not the prevailing factor in causing the
claimant’s diagnosis. The claimant did have a prior history of back injuries,
the first being in 1986 for which he underwent a lumbar discectomy. A few years
later he suffered from an acute episode of low back pain for which he underwent
injections. The ALJ found the claimant sustained an accident on July 14, 2010,
which was the prevailing factor in causing his back condition and need for
treatment.
The
Commission disagreed, noting that they were not persuaded by the claimant’s
evidence on the issue of medical causation. The Commission noted that there
were multiple potential causes for the claimant’s current low back and lower
extremity problems, including the 1986 surgery, the work accident on July 14,
2010, a subsequent incident which lead the claimant to the emergency room on
September 2, 2010, and another incident at work on December 3, 2010. The
Commission also noted they were not convinced that they could reasonably rely
on the claimant’s history of events since it conflicted with the medical
records. Therefore, the Commission found that the accident of July 14, 2010 was
not the prevailing factor in causing any medical condition in the claimant’s
lumbar spine, or any disability. Therefore, the claim was denied.
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Claimant
PTD Because Vocational Expert Not Credible Because Did Not Use Correct
Standard
In
Grace Ketchum v. Missouri Department of Corrections, Injury No.
07-109955, the claimant was working for the employer and her job duties
included supervising inmates, providing food and maintaining supplies. The
claimant was a passenger in a food supply truck and the driver backed into a
loading dock, at which time she sustained whiplash. Dr. Coyle performed an
arthrodesis and the claimant was placed at MMI. The claimant then worked for a
month and applied for extended medical leave and long term disability. After
the claimant was released from Dr. Coyle, she treated with Dr. Guarino for pain
management. Dr. Volarich assessed 65% disability and opined the claimant would
need additional treatment as a result of her work injury. Mr. Eldred, the
claimant’s expert, opined that she was permanently and totally disabled as a
result of her injury. Mr. England testified on behalf of the employer, and
opined that the claimant Awould
still be physically able to perform some types of entry level service
employment such as some cashiering positions, security positions such as
working in an office building or as an alarm monitor for a security company.
She would be a logical person for some home health positions with ambulatory
patients or working as a companion.’ The ALJ found that the employer would be
responsible for additional medical treatment to cure and relieve her from the
effects of the work injury, as the ALJ found Dr. Volarich’s opinion credible.
The ALJ also found that the claimant was not permanently and totally disabled
as he believed that Mr. England’s opinions were more credible. The ALJ did
assess 50% disability to the body.
The
Commission modified the Award opining that the claimant was permanently and
totally disabled as a result of the work injury. The Commission noted that Mr.
England stated that the claimant would be Aphysically
able’ to perform some limited jobs, and that the claimant could perform Asome’ positions. The Commission noted
that Athe test
for permanent total disability is whether the worker is able to compete in the
open labor market, and the critical question is whether in the ordinary course
of the business, any employer reasonably would be expected to hire the injured
worker, given his present physical condition.’ The Commission noted that they
were left to speculate as to whether such positions actually exist in
significant numbers in the open labor market and whether the claimant could
reasonably compete for such positions. Therefore, they found the opinion of Mr.
Eldred credible, and that the claimant was permanently totally disabled.
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Claimant
Found PTD Despite the Fact That He Worked For Employer For Over Two
Years
after Injury
In
Rusty Archer v. City of Cameron, Injury Nos. 08-011470 and
10-075527, the claimant, a concrete layer, sustained an injury on January 16,
2008, when he struck a manhole while driving a skid loader. He underwent
conservative care for cervical and thoracic strains, including physical therapy
and epidural injections. The claimant was given permanent restrictions by two
treating physicians, Dr. Zarr and Dr. Wheeler. Dr. Zarr provided a rating of 3%
and Dr. Wheeler assessed 8%. Dr. Wheeler, the claimant’s last treating
physician, advised that he would need ongoing medication to cure and relieve
him from the effects of the January 2008 accident. The claimant continued to
receive conservative care and continued to work from the fall of 2008 until
September 16, 2010, when he sustained another work-related injury.
While
the claimant was working up until his second injury, he received assistance
from co-workers if he was unable to perform certain activities, and was
accommodated by his employer due to his work restrictions. The claimant was
permitted to take frequent breaks throughout the day.
On
September 16, 2010 the claimant sustained another injury while bending over to
shape a newly formed curb of concrete. He was diagnosed with a chronic and
acute thoracic strain, myofascial syndrome, chronic lumbar strain and muscle
spasms. He was released from care three weeks later, at which time the doctors
indicated that his pain had returned to baseline. He was given the same
restrictions.
The
claimant actually alleged that he was permanently and totally disabled as a
result of the January 16, 2008 accident, and had expert testimony supporting
that allegation. However, the ALJ found that the claimant was not permanently
and totally disabled as a result of the 2008 injury because he worked in the
open labor market laying concrete from 2008 up through his September 16, 2010
injury. The ALJ did not find that the claimant’s work with the employer between
that time period so accommodating to render him unemployable, especially when
he received a raise and medical records reveal he was laying concrete every day
in June 2010. The ALJ did assess 35% disability referable to the January 2008
accident. The ALJ also assessed 7.5% disability to his body as a whole due to
the September 16, 2010 accident.
With
respect to the January 16, 2008 injury, the Commission modified the decision of
the ALJ, and found that the claimant was in fact permanently and totally
disabled as a result of this injury. The Commission found that two experts
opined that the claimant was PTD as a result of the 2008 injury. The Commission
noted that the ALJ disregarded both opinions because the claimant worked in the
open labor market laying concrete from 2008 up until September 16, 2010. The
Commission disagreed noting the position was not in the open labor market, and
the claimant simply went back to the job he already had. The Commission found
that the claimant’s return to his job after his injury is not proof that he
could compete in the open labor market. The Commission noted that since the
claimant was not performing the usual duties of his employment in the manner
that such duties were customarily performed by the average person engaged in
his line of work, concrete laying, the claimant’s return to work did not
constitute proof that he could compete in the open labor market.
With
respect to the September 16, 2010 injury, the Commission noted that the Judge
assessed 7.5% of the body. The Court reversed this decision opining that the
claimant did not sustain any disability as a result of this injury. The
Commission noted that none of the medical experts believed the claimant
sustained any permanent disability and noted that an injury by accident is
compensable only if the accident was the prevailing factor in causing both the
resulting medical condition and disability. Since the accident did not cause
any disability the claim was not compensable.
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Motor
Vehicle Accident Found to be In Course and Scope of Employment
In
Anne Poole v. Preferred Hospice of Missouri, S.W., LLC, Injury
No. 10-049134, the claimant was employed as an admissions coordinator and 80%
of her job duties required travel away from the principal office to off site
locations to perform in-person interviews with patients who are being admitted
to hospice care. The claimant was required to maintain reliable transportation
and was reimbursed for her mileage. She was provided a stipend for a cell
phone, and she carried medical equipment with her at all times. On the day of
her injury she had traveled to various patients’ houses, and her last
appointment was in Seymour, Missouri. There was information that she needed to
fax to a physician, and therefore she went back to the employer’s place of
business. On the way there she was in a motor vehicle accident. The employer’s
witness did indicate that the claimant’s decision to return to the office would
have been highly unusual, particularly since the doctor’s office would have
been closed. It was noted that the accident occurred at a location where the
claimant reasonably would have been irrespective of whether she was traveling
directly home or back to the office.
The
main issue in this case is whether the claimant’s injuries were caused by an
accident arising out of and in the course of her employment. The ALJ found that
the claimant was credible and that her testimony showed that she was on the way
back to the employer’s office to fax something to a physician’s office, which
was benefitting the employer. The ALJ further noted that whether the claimant
intended to return to the office or was going home, was not relevant since the
accident occurred in close geographic proximity and time to the last
appointment on the exact same route the claimant would have taken for either
destination. The Judge did note that an accident occurring while an employee is
going to and from work generally is not compensable. However, there is an
exception for employees whose job duties entail travel. The ALJ did note that
the legislature eliminated benefits for injuries sustained while traveling
between home and an employer’s principal place of business. However, the
claimant was not doing so in this case. The ALJ noted that the claimant was
traveling from a facility in Seymour, Missouri, and therefore her claim was
compensable.
The
Commission affirmed the decision of the ALJ, however, came to the conclusion
using a different analysis. The Commission did point out that the ALJ concluded
that it did not matter whether the claimant had intended to return to the
office or was going home. The Commission noted that the claimant’s actual
destination at the time of the motor vehicle accident was dispositive of the
issue in favor of the claimant. The Commission concluded that the claimant’s
injuries arose out of and in the course and scope of employment because her
injuries did not come from a hazard or risk unrelated to the employment to
which workers would have been equally exposed outside of and unrelated to the
employer in normal unemployment life. Basically, the Commission is saying that
the claimant testified that she was going back to the employer’s office, and
since the ALJ found the claimant credible, it was presumed the claimant was
returning to work and not to her home. Therefore, this is the only fact
scenario the Commission found relevant.
Editor’s
Note: It appears as if the Commission is saying that it is possible that if
the claimant was going home, the claim may not be compensable. However, they do
not go into any discussion regarding this issue.
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Claimant’s
Fusion Related to Work Injury Despite Prior Herniations and Symptoms On
and
Off For Two Years Prior to Injury
In
Elizabeth Lake v. Best Buy, Injury No.: 08-123984, the claimant
was moving microwave ovens from department overhead storage to floor level on
September 5, 2008, when she developed pain at the base of her neck. She did not
report her injury to the employer until 2 weeks later. She continued to
experience neck pain and went to her primary physician and treated
conservatively. She was taken off work by her primary care physician and
underwent MRIs. The claimant was then seen by Dr. Doll, the claimant’s cousin
(this was not authorized care), who recommended that she see Dr. Raskas, a
spinal surgeon. Dr. Raskas performed a two level fusion. Both Dr. Doll and Dr.
Raskas believed that the claimant’s work activities in September 2008 were the
prevailing factor in causing her medical condition and symptoms. This is
significant in that the claimant did have a prior injury in 2006 for which she
underwent physical therapy, chiropractic care and acupuncture for a disc
herniation to the left at C4-5, the same level the claimant underwent the
fusion after the work injury.
Dr.
Volarich testified on behalf of the claimant, noting that although the C4-5
disc herniation was present in 2006, it was essentially asymptomatic prior to
the 2008 injury, and the right disc bulge at C5-6, which was also present in
2006, had caused no radicular symptoms other than occasional finger tip
tingling, prior to the 2008 injury. On cross examination, Dr. Volarich
acknowledged that the claimant’s 2009 MRI and 2006 MRI were essentially the
same. He also acknowledged that the claimant’s medical records demonstrated
that the claimant had some cervical spine symptoms on and off between 2006 and
2008.
Dr.
Kitchens testified on behalf of the employer and believed that the claimant had
cervical degenerative disc disease which was not related to the work injury.
The ALJ concluded that Dr. Kitchens’ opinion was credible and that the claimant’s
work was not the prevailing factor in causing her medical condition and
disability.
The
Commission reversed the decision of the ALJ, noting that Dr. Kitchens based his
premise on the fact that a specific incident or injury did not occur at work
and he opined that overhead lifting activities cannot cause neck pain. Basically,
the Commission did not find Dr. Kitchens’ opinions credible, and found the
opinion of Dr. Volarich and the claimant’s testimony credible. Therefore, the
employer was responsible for PPD, TTD, past medical expenses and future medical
treatment.
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