Simon Law Group, P.C.
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Olive Street, Suite 1720, St. Louis, MO 63101
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MISSOURI
WORKERS’ COMPENSATION CASE LAW UPDATE
January 2016 - March 2016
Top
Temporary Employer Found Responsible for Temporary
Employee’s Fall on Customer’s
Property since Customer Owned and Controlled Parking
Lot and Temporary Employer
and Customer Found to be Joint Employers
Anhalt v. Penmac Personnel Services, Inc., Injury No. 09-006127
The claimant worked for Reckitt-Benckiser (RB),
through Penmac, the employer, as a field associate. On January 30, 2009, the claimant finished
her shift and was walking across the parking lot owned and controlled by RB to
her vehicle when she slipped on a patch of ice and fell, landing on her
outstretched right hand. She was
diagnosed with a right distal radius fracture and an ulnar styloid fracture
with displacement. Dr. Goodman performed
a closed reduction of the right distal radius fracture.
The claimant filed a Claim against Penmac only. At a hearing, the ALJ denied the Claim
because she was walking across a parking lot after work when she was
injured. The ALJ reasoned that the
extension of premises doctrine did not apply because Penmac did not own or
control the property, and RB was not named as an employer in the claim.
On appeal, the Commission reversed the ALJ’s Award.
The Commission noted that the claimant was working as a field associate
performing temporary or seasonal services for RB. Penmac and RB jointly
developed a training/orientation program for the field associates working at
RB. Penmac administered the orientation program before the field associates
went to work at RB. The temporary employees would have to check in at the guard
station before proceeding to the plant. Also there was a separate time clock
installed on RB’s premises for the temporary employees. While working at RB,
the temporary employees reported to a supervisor employed by Penmac but
employees of RB had authority to direct work of the temporary employees if they
saw them doing something unsafe.
The Commission noted the claimant’s work involved
performing services under the simultaneous direction and control of both Penmac
and its client RB. The Commission determined that Penmac and RB were joint
employers of the claimant. The Commission noted that joint employment occurs
when a single employee under contract with two employers and under simultaneous
control of both performs services for both employers and the services provided
are the same or closely related to that of the other. The Commission was
convinced that the claimant was in the joint service of both Penmac and RB when
she was injured since both shared the simultaneous right to direct and control
the manner and means of her services.
The Commission further noted that both Penmac and RB enjoyed a benefit
from the claimant’s service. Therefore, the liability of Penmac and RB was
joint and several. Since RB owned and controlled the parking lot as a joint
employer, the claimant could file a Claim against Penmac, and the Claim was
compensable.
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Claimant’s Injuries Not Compensable Because No
Evidence Her Employment Exposed Her
to Greater Risk of Injury Than in Her Normal
Non-Employment Life
Jensen-Price v. Encompass Medical Group and Treasurer
of Missouri as Custodian of Second Injury Fund, Injury No. 10-066736
The claimant left work for the day and brought her
laptop with her in order to continue working from home. She left the office and took the hallway to
the public elevator. When the elevator
door opened, a housekeeping cart bumped into her, causing her to fall and
sustain multiple injuries. The employer
rented space in the building from the landlord, and the elevators were accessed
using a hallway outside of the space the employer rented. The lease gave the landlord exclusive control
over common areas, including the hallway and elevators. The employer had no rights with regard to the
elevators.
At a hearing, the ALJ found that the claimant’s
injuries were not compensable, because the hallway and elevator were common
areas that were not owned or controlled by the employer.
On appeal, the Commission stated that the ALJ applied
the wrong test. It found that because
the claimant was carrying her laptop for the purpose of working from home, she
was essentially engaged in going from one worksite to another and was therefore
performing a work activity for her employer at the time of the accident and had
not ended her work shift. The Commission
held the issue was whether the claimant’s employment exposed her to a greater
risk of injury than her normal non-employment life. The Commission found that the record was too
vague to determine that the claimant’s employment exposed her to an increased
risk of injury, and because of that, it affirmed the ALJ’s decision to deny
benefits.
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Injury Sustained During a Return to Work Evaluation
for a Non-Work Related Condition
Arose Out of and in the Course and Scope of Employment
and Found Compensable
Sanders v. Rollet Brothers Trucking Company, Injury No. 13-077155
The claimant had a heart condition since 1999. He was off work from September 17, 2013 to
October 1, 2013 after undergoing a non work related heart surgery. When he was released to return to work, he
was directed to the Work STEPS program for a physical evaluation, as there was
a mandatory policy that any employee who missed more than 3 days of work had to
complete the program before returning to work.
The employer scheduled the appointment and paid for the claimant to
attend the program. During the program
on October 1, 2013, the claimant was lifting weighted boxes when he felt
something snap in his back and experienced immediate lower back pain. He was seen by a physician under worker’s
compensation, at which time he was diagnosed with a lumbar sprain/strain with
sciatica and underwent an injection. He
continued to follow up and undergo physical therapy for about a month, after
which he was informed he would have to use his personal health insurance for
further treatment. In December 2013, the
employer requested that he turn in his uniform, and he assumed his employment
had ended.
The claimant filed a Claim for Compensation and sought
additional treatment for his back injury.
The employer argued that the claimant was not being paid wages or
reimbursed for travel for attending the program and he was not employed on his
date of injury, because the program was a condition he had to meet before
returning to employment. The ALJ
disagreed and held the injury arose out of and in the course of employment
because the claimant was required to attend the program or else he would be
terminated and the employer scheduled and paid for the program. Moreover, the claimant was not equally
exposed to the risk of injury outside of his employment, because he only
participated in it in order to remain employed.
Therefore, the injury was compensable.
On appeal, the Commission affirmed the ALJ’s Award,
finding that the statute does not require the employee to be "on the clock” or
receiving compensation at the time a work injury occurs, and therefore, the
claimant’s injury was compensable.
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Truck Driver Awarded PTD for Back Injury Sustained
When He Tripped on a Fuel Hose
Price v. BMS Transportation Company, Inc. and
Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-096454
On August 7, 2012, the claimant, a truck driver, was
driving on assignment when he stopped to fuel up the truck. While the truck was still fueling, he climbed
out of the cab, stepped on the fuel hose, and fell to the ground, at which time
he sustained a back injury. He had no
prior history of back pain, injuries, or surgeries.
The claimant was diagnosed with a large herniated disc
at L4-5. His authorized treating physician
Dr. Meredith opined that a spinal fusion surgery would typically be the only
course of treatment, which only had a 50/50 chance of improving his
symptoms. However, Dr. Meredith noted
the claimant was not a good candidate for surgical intervention since he had
lived a physically strenuous life, and he was not interested in surgical
intervention anyway. Dr. Koprivica
agreed that the claimant had continued back pain but was not a good candidate
for back surgery. Dr. Koprivica also
felt he was PTD as a result of his work injury alone. Vocational expert Mr. Dreiling found that the
claimant was unemployable.
The ALJ found that the claimant was at MMI from the
date Dr. Meredith determined he was not a surgical candidate. The ALJ also held that the claimant was PTD
from the August 7, 2012 work injury alone and awarded PTD benefits from the
employer. On appeal, the Commission
affirmed the ALJ’s Award.
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Employer Responsible for PTD Benefits After Head
Injury, Despite Pre-existing Cavernous
Malformation which Caused Headaches and Left Sided
Numbness Since 2000
Schroer v. City of Fulton and Treasurer of Missouri as
Custodian of Second Injury Fund,
Injury No. 09-068337
The claimant worked as a Senior Construction
Inspector, and on September 1, 2009, he was climbing out of a manhole after
inspecting it when he slipped and hit the back of his head. He reported he saw stars but did not lose
consciousness. While driving away from
the scene of his accident, he became sick and his left side went numb. The claimant’s treating physician Dr. Scher
diagnosed the claimant with post concussive/posttraumatic syndrome and a
history of pontine cavernous malformation and found the claimant PTD due to his
primary injury alone. The claimant
admitted his pre-existing cavernous malformation caused headaches and left
sided numbness beginning in 2000 and he did miss some work because of it,
although it did not otherwise affect his ability to work prior to his work
injury. After his work injury, he
testified he was not able to work due to headaches, migraines, left sided
numbness, double vision, and memory problems.
Dr. Shuter, the claimant’s expert, found the claimant
PTD as a result of his work injury and assessed 10% PPD to the body referable
to the claimant’s pre-existing cavernous malformation. The claimant’s psychiatric expert, Dr.
Daniel, diagnosed an anxiety disorder, cognitive disorder, post-concussive
disorder, traumatic brain injury, and pontine cavernous malformation. Dr. Daniel causally related the claimant’s
condition to his work accident and found him PTD due to the combination of the
psychological and physical disabilities resulting from his work injury. Mr. Weimholt performed a vocational
evaluation on behalf of the claimant and concluded he was not employable due to
his work accident.
The employer’s expert Dr. Selhorst performed an IME
and found the claimant’s complaints most consistent with PTSD. Dr. Stillings performed a psychiatric IME on
behalf of the employer and opined the claimant’s work accident was not the
prevailing cause of any neuropsychiatric disorder, as the claimant had a
pre-existing personality disorder, and assessed no traumatic brain injury or
post-concussive syndrome.
At a hearing, the ALJ found the expert opinions of Dr.
Shuter, Dr. Daniel, Dr. Scher, and Mr. Weimholt more credible and persuasive on
the issue of PTD. Therefore, the ALJ
found the claimant PTD based on the primary work injury alone and ordered the
employer/insurer to pay future medical care.
On appeal, the Commission affirmed the ALJ’s award.
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Claimant’s Death Not Compensable because His Work was
not the Prevailing Factor in
Causing His Heart Attack
White v. ConAgra Packaged Foods, LLC, Injury No. 12-048291
The claimant worked as a machinist before he died on
June 30, 2012 while at work. His autopsy
showed severe coronary artery disease, and his Certificate of Death listed his
cause of death as acute myocardial infarction and heart failure. His surviving spouse filed for death benefits
under workers’ compensation.
Testimony established that the claimant operated a
lathe in a machine shop on the day of his death and the weather was extremely
hot. The machine shop was being cooled
by opening the doors/windows and running a pedestal fan. It also established that the claimant was
wearing a brace for a foot injury on his date of death and he typically worked
12 hours/day, 6 days/week. The autopsy
revealed a 75-80% blockage of his left arteries.
The claimant’s expert Dr. Schuman testified that the
claimant’s work was the prevailing factor in causing his death, because the
extreme heat combined with the claimant’s physically demanding work duties and
leg brace placed added stress on his already strained heart. He testified that although the claimant
performed his normal job duties and was already at risk of cardiac arrest, his
heart had to work extra hard that day due to work conditions.
The employer’s expert Dr. Farrar testified that the
claimant died from ventricular fibrillation caused by myocardial ischemia which
was caused by his coronary artery disease and other heart conditions. He opined the claimant’s sudden death was not
related to his work activities, although he admitted that pain from a prior
injury and heat can cause stress that can trigger a cardiac event.
At a hearing, the ALJ found that the claimant’s
surviving spouse failed to sustain her burden of proof that the claimant
sustained an accident or occupational disease.
The ALJ found that the claimant’s underlying heart conditions caused his
death, which was supported by both experts’ testimony as well the autopsy
report. Therefore, the claim was not
compensable.
The claimant appealed, and the Commission affirmed the
ALJ’s Award with a supplemental opinion.
It found there was no persuasive expert testimony on the issue of
medical causation, and ruled that the claimant’s work was not the prevailing
factor in causing his heart attack or death.
Therefore, the ALJ’s decision denying death benefits was affirmed.
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Commission Reverses ALJ’s Opinion that Employer’s
Expert is Most Credible
Wright v. TG Missouri Corporation, Injury No. 10-074011
On July 6, 2010, the claimant was pushing a 1000 pound
mold on a cart when it slammed into a machine and he felt a sharp pain in his
low back that radiated into his right buttock.
He initially treated with Dr. Kapp, who diagnosed left sciatica with
left lower lumbar pain and radicular symptoms.
The claimant was then seen by Dr. Chabot in February 2012, who diagnosed
a back strain, released him at MMI, and assessed no PPD as a result of the work
accident and opined no additional treatment was needed.
Two months later, the claimant demanded additional
treatment, which was denied. He then
began treating on his own for lower back, neck, and bilateral leg complaints,
right greater than left. Dr. Fonn
performed low back surgery in September 2012 and released him from care in
March 2013.
In August 2013, Dr. Poetz diagnosed pre-existing
lumbar degenerative disc disease, disc herniations at L3-4 and L4-5 with
annular tears, foraminal stenosis, radiculopathy, and exacerbation of lumbar
degenerative disc disease for which the claimant’s work accident on July 6,
2010 was the prevailing factor. Dr.
Poetz assessed 5% PPD due to his pre-existing condition and 45% of the body due
to the claimant’s work accident. Dr.
Chabot issued an addendum to his February 2012 opinion, in which he opined that
any complaints after February 2012 were not related to the claimant’s work
accident.
The ALJ found Dr. Chabot’s opinion credible and noted
that the claimant’s symptoms were distinctly different on February 10, 2012
than they were when he requested additional treatment in May 2012. The ALJ noted that on February 10, 2012, the
complaints were primarily to the low back, left buttock, and left proximal leg,
with no mention of right leg complaints.
Three months later, the claimant complained of back pain radiating into
both legs, right greater than left with constant aching and tingling in his
bilateral legs. The ALJ found that the
claimant failed to prove medical causation for any treatment he received after
February 12, 2012. However, the ALJ
awarded 10% PPD of the body as a whole referable to the claimant’s lower back
as a result of his work injury.
The claimant appealed to the Commission, which
disagreed with the ALJ with respect to the persuasiveness of each party’s
medical expert and found that Dr. Poetz’s medical opinion was more
persuasive. The Commission believed the
ALJ focused too much on variations in the claimant’s symptoms over time. It found the claimant’s testimony regarding
his complaints to be credible and found that his complaints in May 2012 and
onward were medically causally related to his July 6, 2010 work accident. Therefore, the Commission found the employer
was responsible for the claimant’s past medical treatment, any future medical
treatment, TTD, and 30% PPD to his low back.
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Video Surveillance not Admissible at Hearing Since
Employer did not Comply with
Continuing Request for Production
Burlison v. Department of Public Safety and Treasurer
of Missouri as Custodian of Second Injury Fund, Case Nos. SD33809 & 33816 Consolidated (Mo.
App. 2016)
FACTS: The claimant sustained a work-related injury
to her shoulder when a patient grabbed and twisted her arm. At a hearing, the claimant was found to be PTD
as a result of the RSD in her arm. At
the hearing, the employer/insurer attempted to submit into evidence video
surveillance which was taken of the claimant, but the ALJ refused to consider
it in light of the fact that the video surveillance footage was never provided
to the claimant’s attorney. The
claimant’s attorney had previously sent a Notice of Deposition to the
employer’s superintendent, which included a request for statements and any
video taken of the claimant. The
employer/insurer did not have any video at the time of the request and argued
it did not have to produce the video since it was not received until after the
request had been made. The ALJ disagreed
and stated the claimant’s attorney can request surveillance pursuant to a Civil
Rule despite the fact that the workers’ compensation statute does not apply to
videos. In this case, the claimant’s
attorney did not forward a Subpoena Duces Tecum to the superintendent, which is
required by the Civil Rule, but the superintendent voluntarily appeared for the
deposition, and therefore had a duty to produce any videos. While the superintendent may not have had the
video at the time of the deposition, the ALJ found there is a continuing duty
to produce the video, so once the employer obtained the video, they were
required to provide the claimant’s attorney the same. The Commission affirmed the ALJ’s decision.
HOLDING: On Appeal, the court found that the rules of procedure
governing civil depositions also apply to worker’s compensation depositions,
and the employer had a duty to supplement the deposition testimony and supply
the video. Since it failed to forward
the surveillance video to the claimant’s attorney before the hearing, it
violated the rules of discovery, and the surveillance video was correctly
excluded from the hearing.
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Fund Liable for PTD Benefits After Claimant Injured
His Right Knee, Even Though the
Treating Doctor did Not Explicitly Find the Claimant
PTD
Majors v. Treasurer of Missouri as Custodian of Second
Injury Fund, Injury No.
12-023216
The claimant stepped off a street sweeper truck onto a
cobblestone curb while working on March 29, 2012, at which time his foot
slipped into a hole and he sustained an injury to his right knee. Dr. Stechschulte performed a partial
meniscectomy, patellofemoral chondroplasty, and arthroscopic debridement of a
partial thickness ACL tear. The claimant
settled his claim against the employer for 38.5% PPD of the right knee with
future medical left open.
The claimant also had significant prior injuries to
his left knee, including surgery to repair MCL and ACL tears in 1973 and
a total knee replacement in 2002. Dr.
Stuckmeyer examined the claimant at his attorney’s request and assessed 60% PPD
of the right knee due to the primary injury and 50% PPD of the left knee due to
prior injuries/surgeries and recommended right total knee replacement. The doctor opined the combined disability due
to the claimant’s left and right knee injuries was greater than the simple sum,
assigned a 15% multiplicity factor, and recommended a vocational assessment to
determine the claimant’s employability.
The claimant then underwent a vocational evaluation with Mr. Cordray,
who opined the claimant was not employable due to the combination of his
primary injury and his pre-existing left knee condition.
The ALJ noted that although Mr. Cordray opined that
the claimant was unemployable, he was not a doctor, and Dr. Stuckmeyer did not
explicitly find the claimant to be PTD.
The ALJ held that he could not award PTD since Statute requires
physician certification of PTD in order to award PTD benefits. Therefore, the ALJ awarded PPD benefits from
the Fund by finding 50% PPD to the right knee as a result of the primary injury
and a 15% multiplicity factor.
The Commission found Mr. Cordray’s opinion persuasive
and reasoned that Statute does not require specific language to certify a
claimant as PTD by using the phrase "permanent total disability” as long as the
doctor otherwise confirms the extent of the claimant’s diagnoses, medical
conditions, and restrictions. Here, Dr.
Stuckmeyer diagnosed the claimant, identified permanent restrictions, and
recommended a vocational evaluation, which amounted to a certification of the
claimant’s PTD status. The Commission
found the claimant PTD as a result of the primary injury combined with the
effects of his prior medical conditions, and the Fund was therefore liable for
PTD benefits.
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PTD Denied as Claimant did not Present Evidence as to
Why She Stopped Working
Robertson v. Second Injury Fund, Injury No. 09-071549
On September 17, 2009, the claimant slipped in water
and experienced a jarring/twisting motion to her low back. She was diagnosed with a low back strain and
left knee contusion. She also had an
extensive history of 6 prior lower back surgeries between 2005 and 2009 for
degenerative disk disease. In August
2010, the claimant complained of back pain and reported she was losing feeling
from her fall at work and believed the hardware from her previous surgery had
come loose. Dr. deGrange performed an
IME at the employer’s request and diagnosed a lumbar strain that had
resolved. He opined her current back
pain was due to failed back surgery syndrome from her 6 prior back surgeries,
rather than to her work accident, and placed her at MMI. However, the claimant continued to treat, and
in 2012, Dr. Abernathie performed hardware removal at L3-S1, before placing her
at MMI with permanent restrictions. The claimant returned to work full duty for
a few weeks before quitting.
Dr. Margolis performed an IME at the claimant’s
attorney’s request and assessed 70% PPD referable to her low back, 40% of which
was preexisting and 30% of which he attributed to her work accident. She settled with her employer for 17.5% PPD
referable to her low back.
The ALJ agreed with Dr. deGrange that the work
accident was not the prevailing cause of the claimant’s condition and resulting
disability. The ALJ also found the Fund
was not responsible for PTD benefits due to her extensive preexisting and
deteriorating back condition, the fact that she continued working almost 3
years after the accident, the lack of any objective evidence of a physical
change following the work accident, and the claimant’s lack of credibility as a
historian.
The claimant appealed, and the Commission reversed the
ALJ’s decision. It credited her
testimony that she experienced a permanent increase in her pain after the work
accident and found Dr. Margolis’ IME reasonable. However, the Commission found she was not
PTD, because it was unclear why she stopped working. Therefore, the Commission found the work
accident was the prevailing factor in causing a low back strain and awarded 10%
PPD to the body from the Fund, due to her significant preexisting condition and
prior surgeries.
Fund Responsible for PTD Benefits Due to Combination
of Pre-Existing Physical and
Psychological Conditions and Work Injury
Valentine v. Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
06-013126
On February 23, 2006, the 67-year old claimant fell 6
feet off a ladder and injured his right ankle/foot. He was diagnosed with a right foot
intra-articular calcaneus fracture and underwent subtalar arthrodesis followed
by 2 additional surgeries for non-unions.
He sought psychiatric help for depression and was given medication. The claimant also had pre-existing injuries,
including a right rotator cuff tear and tendinitis, bilateral shoulder pain,
and DJD in his bilateral knees. With
respect to his pre-existing psychological condition, he was previously
diagnosed with dysfunctional family origin, poly-substance abuse and
dependency, pain disorder, and personality disorder. He was placed at MMI in February 2008, by
which time he had retired, and in February 2015, he settled with his employer
for 50% PPD of the right ankle and 11.5% PPD to the body referable to his
psychological condition.
Dr. Volarich examined the claimant at his request and
assessed 65% PPD of the right foot/ankle referable to his work injury as well
as 25% of the right shoulder, 15% of the left shoulder, and 30% of each knee
due to pre-existing conditions. The
doctor opined he was PTD due to a combination of his primary and pre-existing
conditions, age, and limited education.
Dr. Stillings examined the claimant for psychiatric disorders at his
request and assessed a primary psychiatric injury of 45% PPD of the body
referable to mood, pain, and anxiety disorders.
He agreed the claimant was PTD, due to his primary and pre-existing
psychiatric conditions. Mr. England and
Ms. Blaine also found the claimant PTD and unemployable.
At a hearing against the Fund, the ALJ found the
expert opinions of Dr. Volarich, Dr. Stillings, Mr. England, and Ms. Blaine
persuasive. Therefore, the ALJ found the
claimant was PTD due to a combination of his primary injury and pre-existing
conditions, and the Fund was liable. On
appeal, the Commission affirmed the ALJ’s decision.
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Claim for Benefits Denied after Claimant Failed to
Appear at Trial
Stovall v. Convergys and Treasurer of Missouri as
Custodian of Second Injury Fund,
Injury No. 11-022817
The claimant injured her right lower extremity while
working for the employer on February 27, 2011.
She requested additional treatment but never provided medical evidence
substantiating her request. Her case was
set for trial on three occasions but continued at the claimant’s request to
give her time to obtain additional evidence.
The case was set for trial on August 20, 2015, and a
final notice was sent by certified mail.
Attorneys for the claimant, employer, and Fund appeared for trial at
9:30 a.m. However, as of 11:15 a.m., the
claimant had still not appeared for trial, although she was in touch when her
attorney multiple times during the morning and claimed to be on her way to the
Division. The claimant’s attorney
requested a delay, to which the employer objected. The ALJ concluded the trial and awarded a
default judgment denying any benefits and finding that the claimant failed to
establish a compensable injury by failing to appear for scheduled hearings or
present substantiating evidence. The
claimant appealed, and the Commission affirmed the ALJ’s decision.
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Claimant’s PTD Benefits Commutated to a Lump Sum to
Avoid Undue Financial Hardship
to the Claimant
Thomas v. Forsyth Care Center and Missouri Nursing
Home Insurance Trust, Case No.
SD34151 (Mo. App. 2016)
FACTS: The claimant was awarded a Temporary Award on December
10, 2007. The employer failed to comply
with the Temporary Award. The claimant was
unable to obtain treatment, and her condition worsened. At a final hearing, the ALJ determined she
was PTD, and the Commission and Court of Appeals affirmed. The claimant then filed a Motion for
Commutation of her PTD benefits, arguing that she has been required to pre-pay
for her treatment and prescriptions and then wait almost a month for
reimbursement from the employer, which was an undue hardship on her fixed
income. The Commission found the
employer had a well documented history of disregarding the ALJ’s Temporary
Award and found that the unusual circumstances presented by the claimant called
for payment of her anticipated benefits in a lump sum. The employer appealed.
HOLDING: On appeal, the court relied on the Commission’s
findings of fact and credibility determinations to find that the employer
repeatedly made it difficult for the claimant to receive treatment and
reimbursement for medical costs.
Therefore, the court found there were unusual circumstances which
justified commutation of the PTD benefits, and the Commission’s Award was
affirmed.
