Simon Law Group, P.C.
720
Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI
WORKERS’ COMPENSATION CASE LAW UPDATE
January
2018 – March 2018
Court
Affirms Commission Decision that Claimant’s Injury Compensable Because Claimant’s
Work Was an Unusual Strain, Despite the Fact They Were Her Normal Job Duties
That She Performed Every Day
Clark vs.
Dairy Farmers of America, Case No. SD34826 (Mo. App. 2018)
FACTS: The claimant worked in cheese
production, and her job duties primarily involved leaning against the edge of a
large vat and using a shovel to turn the cheese. This involved leaning her chest against the
vat and repeatedly pushing the shovel in and out of the cheese to stir the
mixture, which could weigh up to 40 pounds.
On her date of injury, the claimant was attempting to lift the shovel
back out of the cheese mixture when she sustained a rib fracture. At the hospital, she was also noted to have a
lytic lesion close to the fracture spot, which was later revealed to be a rare
malignancy that can weaken a bone “to the point that it can fail under a force
that is less than normal”. Therefore,
the employer argued that her job duties were not the cause of her
fracture. However, the claimant’s doctor
opined that her job duties were the prevailing factor and were sufficient to
cause a rib fracture even without the lesion.
At a Hearing,
the ALJ held that the injury was not compensable. On Appeal, the Commission reversed the ALJ’s decision
and found that the claimant did suffer a compensable accident.
HELD: The employer appealed and
argued that there was not a compensable accident. First, it argued that the pop, or fracture,
could not be both the “accident” and the “injury.” The employer also argued
that the act of performing her normal job duties could not have been the “accident”
because she did this every day, and therefore, it was not an unusual strain
under the statute. The Court agreed with
the Commission and held that the claimant’s normal job duties that she performs
eight hours per day can still constitute an unusual strain under the statute,
and an accident does not require “something distinguishable from and in
addition to routine work, such as a precursor event.” Therefore, the Court affirmed the Commission’s
decision and award.
Court
Affirmed Summary Judgment for Defendant in Negligence Claim Because Using Fork
Truck in Unsafe Manner was Breach of Employer’s Non-Delegable Duty to Provide a
Safe Workplace
Fogerty
vs. Armstrong & Meyer, Case No.
SC96030 (Mo. Sup. Ct. 2018)
FACTS: The claimant and Meyer (the defendant) were
working for a construction company and were assigned to install a fountain, but
the employer did not provide detailed instructions on how to do so. They were required to move large stones and
decided to use a front loader by using a strap as a sling to carry the stones
beneath the front loader’s forks. Meyer
asked the claimant to walk beside the stone to keep it from swinging as he
drove the front loader. While the
claimant did so, one of the forks unexpectedly hit the claimant in the
back. He settled a workers’ compensation
claim against the employer and subsequently filed suit against Meyer for
negligence.
Meyer moved for summary judgment, arguing that the
suit was barred because the claimant failed to show that he breached a duty
that was separate and distinct from the employer’s non-delegable duty to
provide a safe workplace. The Circuit
Court agreed and granted summary judgment in Meyer’s favor. The claimant appealed.
HOLDING: The Missouri Supreme Court held that in order
to maintain a negligence action against a co-employee, the claimant must show
that the co-employee breached a duty that was separate and distinct from the
employer’s non-delegable duty to provide a safe workplace. Here, the employer failed to provide a safe
manner and means for constructing the fountain and using the front loader to
move large stones. Therefore, Meyer’s
negligence in deciding how to install the fountain and move the stones was
reasonably foreseeable by the employer, and it was a breach of the employer’s
non-delegable duty to provide a safe workplace.
The Court affirmed the Circuit Court’s decision, and the claimant was
barred from pursuing a third-party action against Meyer.
Court
Affirmed Summary Judgement for Defendant in Negligence Claim Because Decision
to Have Claimant Drive in Icy Conditions was Breach of Employer’s Non-Delegable
Duty to Provide a Safe Workplace
McComb
vs. Norfus & Cheese, Case No.
SC96042 (Mo. Sup. Ct. 2018)
FACTS: The claimant worked as a courier and was
scheduled to work on a day when there was a severe winter storm warning. He was advised by his supervisors to complete
his route despite the winter storm but to drive slowly and carefully. Before the end of his shift, his vehicle slid
off the road and flipped several times, and he died as a result. The claimant’s widow (plaintiff) sued the co-employees,
his supervisors, alleging that they were negligent in sending the claimant on
his route despite weather conditions.
Co-employees moved for summary judgment, claiming that
the suit was barred by the exclusivity provision. The trial Court initially granted summary
judgment in favor of the co-employees.
The plaintiff appealed, and the Court of Appeals reversed the decision.
HOLDING: The co-employees appealed to the Missouri
Supreme Court, which reversed the Appellate Court’s decision and held that the
decision to have the claimant drive in inclement weather was a breach of the
employer’s non-delegable duty to provide a safe work place. Therefore, the plaintiff could not file a
wrongful death action against the co-employees.
Claimant
Injured in Course and Scope After Falling From the Top of a Truck Because He
Was Climbing Down from the Roof in Order to Leave the Premises After He was
Locked in, and He Was Not Equally Exposed to Risk of Falling Off a Truck
Outside of Work
Brown vs.
Superior Linen Supply Company, Injury No. 14-093366
The claimant sustained an injury on October 31, 2014
after he became locked inside the employer’s courtyard at the end of his shift
and was attempting to escape the premises by climbing a fire escape ladder to
the roof, walking across the roof to the other side of the building where
delivery trucks were parked, and climbing down onto the top of a delivery
truck. As he attempted to climb from the
truck to the ground, he fell and sustained an injury to his right ankle, for
which he underwent two surgeries.
At a Hearing, the claimant testified that he believed
he needed to climb down from the roof onto the truck in order to escape the
courtyard area and catch his bus. The
employer argued that the injury did not arise out of and in the course and
scope of employment because he was doing something that was not a normal work
activity. The ALJ found that the
claimant’s injury arose out of and in the course and scope of his employment
because climbing down from the roof was incidental to his work because he was
attempting to clock out and leave for the day.
The employer appealed to the Commission, which
affirmed the ALJ’s decision and Award with a supplemental opinion. The Commission noted that compensation is not
limited to workers who are injured while actively engaged in their job
duties. Instead, when considering
unequal exposure, the focus should be on whether the employee was injured because they were at work rather than
simply while they were at work. The
Commission reasoned that the claimant was injured because he became locked
inside the courtyard as the direct result of a normal work-related activity,
i.e. gathering his things before clocking out and heading home. Also, the risk of becoming locked inside the
employer’s courtyard was not a risk or hazard to which he would be equally
exposed outside of his employment.
Therefore, his injury arose out of and in the course and scope of his
employment.
Employer Liable for Future Medical, Despite Fact that
Future Medical Would Also Provide Treatment for Non-Work-Related Injuries
Morris vs. Captain D’s and Treasurer of the State of
Missouri as Custodian of the Second Injury Fund, Case Nos. SD34835 and SD34836 (Mo. App. 2018).
The claimant
was injured in two work-related accidents in January 2007. He had several pre-existing injuries and
disabilities. He was initially evaluated
by Dr. Volarich in January 2008, at which time the doctor opined he was PTD as
a result of his primary injuries in combination with his pre-existing medical
conditions and recommended ongoing pain management. The claimant proceeded to undergo multiple
surgeries with his personal doctor, including cervical and lumbar fusions. Dr. Volarich again recommended ongoing pain
management in December 2012 and testified that the need for future medical was
due to a mixture of his work injuries, pre-existing back problems, and his
subsequent neck and low back problems.
The employer presented medical testimony that the claimant did not
require additional medical treatment for either work injury.
At a Hearing,
the ALJ found the claimant PTD and the Fund responsible for the same. The ALJ also found Dr. Volarich persuasive
and held that the employer was liable for future medical treatment with respect
to the two primary injuries. The ALJ
noted that although Dr. Volarich was not clear as to which treatments were for
which disabilities/injuries, the doctor had not changed his mind that the
claimant required some treatment for pain as a result of his work
injuries. On Appeal, the Commission
affirmed the ALJ’s decision and Award.
The employer
appealed the award of future medical treatment and argued it was not supported
by substantial evidence on the record because Dr. Volarich testified that
treatment would be related to a “mixture” of work and non-work-related problems
and the “lack of clarity of specificity from Dr. Volarich… does not support a
finding that the claimant is in need of future medical treatment related to the
injuries of January 3, 2007 and January 14, 2007”. The Court agreed with the Commission and
affirmed its Decision and Award. The
Court noted that an employer may be ordered to provide future medical care that
will also treat non-work-related injuries if evidence establishes that the need
for treatment is caused by the work injury.
The Court reasoned that the claimant established a reasonable
probability that future treatment was needed for his neck and back due to the
January 2007 work accidents.
Claimant PTD
Due to Occupational Disease From Exposure to Biological Particulates Created By
Construction Project in Building Where He Worked As Janitor
Cooper
vs. Mid-Missouri Mental Help Center and Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
07-130828
The claimant, a 50-year-old janitor, was working for
the employer in the same building where a couple of construction/demolition
projects were occurring, which produced a large amount of white dust that the
claimant cleaned daily for approximately two months. He was not given a dust
mask or any type of protective gear. He
soon after developed multiple symptoms, including shortness of breath,
headaches, dizziness, blurred vision, and memory issues. He was ultimately diagnosed with
hyper-sensitivity pneumonitis and developed various other conditions as a
result of his treatment for the same.
The claimant’s medical expert, Dr. Parmet testified
that environmental sampling of the area where the claimant was working showed
that 20% of the dust he was exposed to was comprised of fungi and biological
particles, and in his medical opinion, exposure to a large amount of particles
in the air can overwhelm the body’s natural defenses and result in
hyper-sensitivity pneumonitis. Dr.
Parmet opined that this exposure was the prevailing cause of the claimant’s
conditions.
At a Hearing, the ALJ found Dr. Parmet’s testimony
persuasive regarding medical causation.
The ALJ noted that the claimant does not need to establish the exact
cause of the occupational disease if he can show that the disease is one that
the general public is not exposed to, and that there is a probability his
occupational activities caused the disease.
The ALJ held that the claimant met his burden to establish injury by
occupational disease that was medically causally related to work and ordered
the employer to pay PTD benefits, past medical expenses, and future
medical. The ALJ also ordered a 15%
penalty against the employer because it did not use any methods for the
prevention of occupational diseases caused by exposure to the dust. The ALJ reasoned that if the employer had
provided effective devices or a means/method of prevention, such as dust masks,
the occupational disease could have been prevented. On appeal, the Commission modified the ALJ’s
decision and Award with respect to the 15% safety penalty and noted that there
was no evidence on the record showing that there were effective devices, means,
or methods that existed for the prevention of the employee’s injury or that the
employer failed to provide the same.
Muscle Tear
and Hematoma Compensable Because Claimant Was Squatting in Order to Perform a
Job Duty, and Hematoma Prevailing Cause of Subsequent Staph Infection
Wilkins
vs. Piramal Glass USA, Inc., Case No. ED105683 (Mo. App. 2018)
FACTS: The claimant was squatting in an awkward
position while changing a spool at work, and when he stood up, he tore his left
calf muscle. He was also diagnosed with
a hematoma in his left calf and developed a staph infection in his left
leg. He underwent authorized treatment
and was placed at MMI. Notably, the
claimant was also diabetic and had a sore on his left ankle a few days prior to
his injury. He also treated for
cellulitis less than two months prior to his date of injury.
Dr. Woiteshek evaluated the claimant at his attorney’s
request and opined that the work accident was the prevailing cause of the
claimant’s muscle tear, hematoma, and the subsequent infection. Dr. Burns testified on behalf of the employer
that the claimant’s uncontrolled diabetes and the sore on his left ankle were
the prevailing causes of his infection.
Dr. Burns opined that although a hematoma can become infected, the
infection must enter the body another way, such as the ankle sore, and would
not spontaneously develop from a hematoma.
At a Hearing, the ALJ awarded compensation referable to the muscle tear
and hematoma, but not the staph infection, and held that the infection was not
medically casually related to the accident.
On appeal, the Commission reversed the ALJ’s decision and held that the
claimant’s work accident was the prevailing cause of the torn muscle and hematoma,
which in turn caused the staph infection.
The employer was ordered to pay PPD for all three conditions.
HOLDING: The employer appealed and argued that the
Commission erred in finding the injury arose out of and in the course and scope
of employment because rising out of a squatting position is something people do
outside of their employment, and therefore he would have been equally exposed
to that risk in his normal non-employment life.
However, the Court noted that the claimant was squatting at work in
order to replace a spool on the employer’s machine, which was a function of his
job, and according to Dr. Burns’ testimony, rising from this awkward position
caused the muscle tear. Therefore, the
claimant was injured because he was at work and not simply while he was at
work. The employer also argued that the
staph infection was not medically causally related to the torn calf muscle, but
the Court found the opinion of Dr. Woiteshek persuasive on the issue of medical
causation. Therefore, the Court affirmed
the Commission’s decision and Award.
Claimant Not PTD Because Testimony Regarding His
Complaints Not Credible When Compared to Other Evidence on The Record,
Including Surveillance Video
Page vs. OCCI, Inc. and Treasurer of Missouri as Custodian
of Second Injury Fund, Injury No.
08-096549
The claimant, a 43-year-old heavy equipment operator
and general contractor, sustained an injury to his left ankle and right knee at
work on October 3, 2008. The claimant
underwent multiple surgeries to the same, ultimately undergoing a complete left
ankle fusion in March 2011. He only
briefly returned to work in January 2011 before he “rolled” his ankle on
January 12, 2011, but none of the doctors who treated or evaluated the claimant
believed the 2011 incident was the prevailing cause of his left ankle condition
or need for surgery. He did not have any
significant pre-existing disabilities.
Mr. Weimholt, the claimant’s vocational expert, opined
the claimant was unemployable as a result of his 2008 injury. This opinion was based in large part on the
claimant’s subjective reports that he could not perform any interior or
exterior maintenance and had to use a cane to enter and exit vehicles. However, video surveillance of the claimant
obtained in 2009, 2013, and 2014 documented him pushing his motorcycle, walking
on the roof of a carport, loading lumber into a van, hooking a trailer to a
vehicle, operating digging equipment, entering and exiting a van without the assistance
of a cane, and helping lift a jackhammer, among other things.
At a Hearing before an ALJ, the claimant admitted to
performing all of the activities documented in the surveillance video. However, he continued to testify that he had
severe left ankle pain which made him unemployable. The ALJ did not find the claimant’s testimony
credible in light of the surveillance video and also noted that despite
testifying he had to take 5-10 pills of narcotic medication per week, he had
not filled a prescription for narcotic medication for two years. The ALJ found that the January 12, 2011
injury was not compensable because it did not result in a separate injury. The ALJ did find that the claimant sustained
70% PPD of the left ankle and 35% PPD of the right knee as a result of the
October 3, 2008 accident, but he was not PTD.
On appeal, the Commission affirmed the ALJ’s decision and Award.
Employer Liable for PTD Benefits Due to
Permanent Work Restrictions for Last Injury, Despite Fact Claimant’s Back Was
Treated Conservatively and She Had Significant Pre-Existing Disabilities
Carty vs. Southeast Missouri Mental Health Center –
State of Missouri and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No.
11-089630
The
66-year-old claimant sustained an injury to her low back when she lost her
balance on November 8, 2011, fell to the ground, and sustained an L2 burst
fracture with a 5-millimeter fragment retropulsion into the spinal canal. She was given a back brace and pain
medication and briefly underwent physical therapy. She did not undergo surgery. The claimant also had pre-existing
conditions, including ongoing discomfort and stiffness in her left knee after a
torn meniscus in 2005 and a disc bulge at L4-5 for which she underwent injections
in 2008 and continued to miss 2-4 days of work per month. However, she did not have any permanent work
restrictions for either injury.
Dr. Volarich
evaluated the claimant at her attorney’s request and assessed 35% PPD of the
lumbar spine due to her primary work injury as well as significant pre-existing
PPD to the lumbar spine and left knee.
However, Dr. Volarich recommended permanent restrictions of changing
positions frequently and resting as needed during the day, which were necessary
as a result of the last injury alone.
Vocational expert, Ms. Gonzalez, opined that the claimant was
unemployable as a result of Dr. Volarich’s permanent restrictions. The employer presented expert medical
evidence that contradicted Ms’ Gonzalez’s opinion.
At a Hearing,
the ALJ found the claimant’s testimony credible regarding her complaints and
the need to rest up to two hours during the work day. The ALJ also found the opinion of Dr.
Volarich persuasive and noted that the permanent restrictions recommended by the
doctor were referable to the primary injury alone. Therefore, the ALJ ordered the employer to
pay PTD benefits and future medical care.
On appeal, the Commission affirmed the ALJ’s decision and Award.
Employer Responsible for PTD Due to Claimant’s
Physical Injuries, Psychiatric Injury, and Opiate Dependency, Despite Fact
Medical Evidence and Surveillance Video Showed Claimant Was Exaggerating Her
Complaints and Disability
Houchen vs. Trimmasters, Injury No.
06-022626
The claimant,
a 57-year-old high school graduate, sustained an injury to her neck and
bilateral shoulders on January 13, 2006.
Dr. Rosenberg performed a cervical fusion at C5-6 on March 15,
2006. Dr. Frevert performed surgery to
repair a rotator cuff tear on the left shoulder on June 16, 2006, and on the
right shoulder on August 7, 2006 and a re-tear on February 22, 2007. The claimant developed depression as a result
of her injury and chronic pain and was prescribed Xanax but did not receive any
other treatment for the same. Medical
records also suggest that she developed an opiate dependency as a result of her
injury.
The doctors
on both sides agreed that the claimant’s neck and shoulder injuries and need
for surgery resulted from the work injury.
Dr. Poppa testified on behalf of the claimant’s attorney that the claimant
was PTD as a result of a combination of her physical injuries, mental
condition, and use of medications. Dr.
Caffrey provided the only vocational evaluation, on behalf of the employer,
wherein he noted that she was significantly exaggerating her level of
disability but still opined she was unemployable due to her physical limits and
lack of transferable skills. Pain
management specialists and the treating doctor opined the claimant was
exaggerating her complaints and noted she was also seeking opioid medication
from other physicians. Surveillance
video showed the claimant engaging in activities that were inconsistent with
her testimony regarding her level of disability. In particular, one video showed her
single-handedly pushing a stalled pick-up truck on a grassy parking area.
At a Hearing,
the ALJ agreed that evidence showed the claimant was significantly exaggerating
her pain complaints. However, the ALJ
also noted that she underwent four surgeries and suffered from depression and
likely opioid dependence as a result of her work injury. Also, Dr. Caffrey’s was the only vocational
opinion presented at the Hearing.
Therefore, the ALJ found the claimant to be PTD as a result of her
primary work injury and found the employer responsible for the same. On Appeal, the Commission affirmed the ALJ’s
decision and Award.
Employer Responsible for PTD Benefits After Primary
Injury Caused Low Back Injury and Psychological Condition, Which Required
Claimant to Take Narcotic Pain Medications and Take Frequent Breaks
Kittrell vs. Townsend Tree Service, Injury No.
12-085091
The claimant,
a 40-year-old high school graduate, sustained an injury to his low back on
October 30, 2012. Dr. Wayne recommended
lumbar ESIs and a TENS unit. Dr. Coyle
subsequently performed a lumbar fusion at L4-S1. He underwent additional injections with Dr.
Wayne and continued to complain of back and lower extremity symptoms. Dr. Coyle had the claimant undergo an FCE in
January 2014, and after the claimant refused to cooperate with the evaluator,
Dr. Coyle placed him at MMI. The
claimant proceeded to treat on his own with Dr. Harness. At a Hearing, the claimant testified that he
is limited by his back pain and also developed major depression as a result of
his injury. He testified that he is
unable to sleep more than two or three hours at a time and takes naps during
the day.
The
claimant’s attorney had the claimant evaluated by Dr. Woiteshek, a psychiatrist
Dr. Sky, and Mr. England, a vocational rehabilitation specialist. Dr. Woiteshek opined he was PTD as a result
of the work injury and recommended ongoing pain management. Mr. England opined the claimant was
unemployable in light of his lack of transferable skills below the medium
physical demand level, his poor math and reading levels, and his need to take
frequent breaks throughout the day. Mr.
Patsavas provided a vocational report on behalf of the employer and opined the
claimant was capable of working in the sedentary to light physical demand
category. However, Mr. Patsavas did not
consider the effect that being on medication would have on the claimant’s
ability to perform these jobs and that taking narcotic medication could prevent
him from being hired by employers.
At a Hearing,
the ALJ found the opinions of Dr. Woiteshek and Mr. England persuasive and the
claimant’s testimony credible regarding his disability. The ALJ held that the claimant was PTD as a
result of the work injury alone and noted his need to take frequent breaks and also
his psychiatric problems. The employer
was ordered to pay PTD benefits and provide past and future medical treatment
for the claimant’s physical and psychological complaints. On Appeal, the Commission relied upon the
ALJ’s credibility determinations and affirmed the ALJ’s decision and Award with
a supplemental opinion.
35-Year-Old Claimant with GED PTD After Spinal Fusion,
Despite Surveillance Video, Because Claimant Can Be Unemployable Without Being
Completely Inactive
Jackson County Missouri vs. Earnest, Case No.
WD81083 (Mo. App. 2018)
FACTS: On March 11,
2014, the 35-year-old claimant sustained a compression fracture at T7 when a
tree fell on him. He underwent an
authorized ORIF and fusion of the thoracic spine along with an associated rib
resection for bone graft and additional procedures. He also underwent pain management with Dr.
Pang, who placed him at MMI, assessed 15% PPD of the body referable to the
thoracic spine, and recommended follow up with his personal doctor for
continued pain management.
Dr. Stuckmeyer evaluated the claimant at his
attorney’s request and recommended several permanent restrictions, including no
prolonged standing or walking and the ability to change positions frequently
throughout the day. Dr. Stuckmeyer
recommended evaluation by a vocational expert, who opined the claimant was
unemployable because, although positions might be available within the
claimant’s work restrictions, these would be for a highly skilled individual in
an office setting, and the claimant would not qualify.
At a Hearing, the claimant testified that on good days
he could perform some chores and yardwork, but he also testified that he had
difficulty sleeping and took up to five naps per day, and he had trouble
concentrating due to pain and had no experience using computers. The employer
presented surveillance video of the claimant performing various household
chores, including mowing his lawn, pushing a broom, and hosing down his
driveway. The ALJ found the claimant’s
testimony credible and held that he was PTD as a result of his last injury
alone. The ALJ reasoned that the
claimant could still be PTD despite being able to perform some type of work on
an ongoing basis, and the activities shown on the video did not translate to
the ability to perform sustained employment as they were “mere snapshots in
time.” The ALJ also noted that even Dr.
Pang, the employer’s doctor, reviewed the video and opined that “a one-time
surveillance video of one activity is not always reflective of one’s capability
to hold a full-time job.” On Appeal, the
Commission affirmed the ALJ’s decision and Award.
HOLDING: The Court
affirmed the Commission’s decision and Award and found the employer responsible
for PTD benefits. The employer argued
that the Commission’s finding was against the weight of the evidence because
the claimant’s testimony was inconsistent regarding his ability to do
yardwork. However, the Court found that
the ALJ and Commission found the claimant’s testimony regarding his
capabilities to be credible, and his testimony was supported by medical
evidence.
Fund Liable
For PTD Because Claimant Unemployable Due To Combination of Primary Injury,
Prior Injuries, Learning Disability, and Functional Illiteracy
Potts vs.
State of Missouri, Fulton State Hospital and Treasurer of Missouri as Custodian
of Second Injury Fund, Injury No. 11-063860
The claimant, a 54-year-old laborer, was working for
the employer on August 10, 2011 when he fell and sustained injuries to his low
back and neck. He underwent physical
therapy and multiple injections but did not undergo surgery. He returned to work with accommodations for
17 months before ultimately retiring.
The claimant also had significant pre-existing disabilities, including
frostbite injuries to both feet, Type II diabetes with neuropathy, right knee
pain, cervical DDD, and prior low back complaints. He also had a significant pre-existing
learning disability and was functionally illiterate. He had the equivalent of a fourth-grade
education and was admitted to Fulton State Hospital as a child for severe
behavioral problems.
At a Hearing, the ALJ found the employer was
responsible for 25% PPD of the body, 5% of which was referable to the neck and
20% was referable to the low back.
However, the ALJ found the claimant was not PTD.
The claimant appealed, and the Fund argued that it was
not responsible for PTD benefits because the claimant’s pre-existing conditions
were not a hindrance or obstacle to his employment because he had successful
worked with those conditions for over 30 years.
The Commission held that the claimant’s learning disabilities and
functional illiteracy qualified as a pre-existing permanent disability, and it
also held that the claimant’s preexisting physical and psychological conditions
were a hindrance or obstacle to his employment because they had the potential
to combine with a future work injury to result in worse disability than would
have resulted in the absence of the pre-existing conditions. The Commission
also held that the claimant was PTD as a result of his primary work injury
combined with his preexisting conditions because, although he could physically perform some jobs, his prior
academic history and illiteracy would significantly limit his ability to obtain
and perform those jobs. It also reasoned
that the claimant was only able to continue working for 17 months after his
injury due to an informal arrangement with his long-time employer, and a new
employer would be unlikely to provide the same accommodations to a newly hired
employee. Therefore, the Commission held
that the Fund was responsible for paying PTD benefits.
Fund Liable
for PTD Benefits Due to Combination Claimant’s Pre-Existing Physical and
Psychiatric Disabilities and Primary Injury
Kalajdzic
vs. St. Louis Children’s Hospital and Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
12-063341
The claimant, a 47-year-old nurse’s aide, was changing
the sheets on a bed that was awkwardly positioned, which required her to reach
across the bed to lift the mattress, when she sustained an injury to her low
back. Dr. Robson performed a three-level
lumbar fusion, and the claimant also required mental health treatment after her
work injury because she became depressed and heard voices. The claimant had a history of prior low back
issues and lumbar injections, most recently in December 2011, two months prior
to her date of injury. She also had a
history of depression and anxiety and had previously been prescribed Xanax.
Dr. Volarich evaluated the claimant on behalf of her
attorney and recommended permanent restrictions, including changing positions
frequently to maximize comfort and resting as needed, and he opined she was PTD
as a result of a combination of the primary injury and her pre-existing medical
conditions. Mr. England, a vocational
expert, opined the claimant was unemployable as a result of Dr. Volarich’s
permanent restrictions, her anxiety and sleep deprivation, and her need to lie
down throughout the day.
At a Hearing, the ALJ denied compensation and held
that the injury did not arise out of and in the course and scope of employment,
because the claimant failed to show a causal connection between her injury and
work.
On appeal, the Commission reversed the ALJ’s decision
and Award. The Commission found the
claimant’s testimony credible and held that she sustained an injury by accident
when she attempted to lift a mattress on a hospital bed that was in an awkward
position. The Commission found that the
claimant sustained 25% PPD of the body referable to her low back and 10% PPD of
the body referable to a psychiatric disability as a result of her primary
injury and was PTD as a result of the combination of her primary injury and
pre-existing disabilities. Therefore,
the Fund was responsible for PTD benefits, and the employer was ordered to pay
past medical expenses and provide future medical treatment.
Simon Law Group, P.C.
720
Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI
WORKERS’ COMPENSATION CASE LAW UPDATE
January
2018 – March 2018
Court
Affirms Commission Decision that Claimant’s Injury Compensable Because Claimant’s
Work Was an Unusual Strain, Despite the Fact They Were Her Normal Job Duties
That She Performed Every Day
Clark vs.
Dairy Farmers of America, Case No. SD34826 (Mo. App. 2018)
FACTS: The claimant worked in cheese
production, and her job duties primarily involved leaning against the edge of a
large vat and using a shovel to turn the cheese. This involved leaning her chest against the
vat and repeatedly pushing the shovel in and out of the cheese to stir the
mixture, which could weigh up to 40 pounds.
On her date of injury, the claimant was attempting to lift the shovel
back out of the cheese mixture when she sustained a rib fracture. At the hospital, she was also noted to have a
lytic lesion close to the fracture spot, which was later revealed to be a rare
malignancy that can weaken a bone “to the point that it can fail under a force
that is less than normal”. Therefore,
the employer argued that her job duties were not the cause of her
fracture. However, the claimant’s doctor
opined that her job duties were the prevailing factor and were sufficient to
cause a rib fracture even without the lesion.
At a Hearing,
the ALJ held that the injury was not compensable. On Appeal, the Commission reversed the ALJ’s decision
and found that the claimant did suffer a compensable accident.
HELD: The employer appealed and
argued that there was not a compensable accident. First, it argued that the pop, or fracture,
could not be both the “accident” and the “injury.” The employer also argued
that the act of performing her normal job duties could not have been the “accident”
because she did this every day, and therefore, it was not an unusual strain
under the statute. The Court agreed with
the Commission and held that the claimant’s normal job duties that she performs
eight hours per day can still constitute an unusual strain under the statute,
and an accident does not require “something distinguishable from and in
addition to routine work, such as a precursor event.” Therefore, the Court affirmed the Commission’s
decision and award.
Court
Affirmed Summary Judgment for Defendant in Negligence Claim Because Using Fork
Truck in Unsafe Manner was Breach of Employer’s Non-Delegable Duty to Provide a
Safe Workplace
Fogerty
vs. Armstrong & Meyer, Case No.
SC96030 (Mo. Sup. Ct. 2018)
FACTS: The claimant and Meyer (the defendant) were
working for a construction company and were assigned to install a fountain, but
the employer did not provide detailed instructions on how to do so. They were required to move large stones and
decided to use a front loader by using a strap as a sling to carry the stones
beneath the front loader’s forks. Meyer
asked the claimant to walk beside the stone to keep it from swinging as he
drove the front loader. While the
claimant did so, one of the forks unexpectedly hit the claimant in the
back. He settled a workers’ compensation
claim against the employer and subsequently filed suit against Meyer for
negligence.
Meyer moved for summary judgment, arguing that the
suit was barred because the claimant failed to show that he breached a duty
that was separate and distinct from the employer’s non-delegable duty to
provide a safe workplace. The Circuit
Court agreed and granted summary judgment in Meyer’s favor. The claimant appealed.
HOLDING: The Missouri Supreme Court held that in order
to maintain a negligence action against a co-employee, the claimant must show
that the co-employee breached a duty that was separate and distinct from the
employer’s non-delegable duty to provide a safe workplace. Here, the employer failed to provide a safe
manner and means for constructing the fountain and using the front loader to
move large stones. Therefore, Meyer’s
negligence in deciding how to install the fountain and move the stones was
reasonably foreseeable by the employer, and it was a breach of the employer’s
non-delegable duty to provide a safe workplace.
The Court affirmed the Circuit Court’s decision, and the claimant was
barred from pursuing a third-party action against Meyer.
Court
Affirmed Summary Judgement for Defendant in Negligence Claim Because Decision
to Have Claimant Drive in Icy Conditions was Breach of Employer’s Non-Delegable
Duty to Provide a Safe Workplace
McComb
vs. Norfus & Cheese, Case No.
SC96042 (Mo. Sup. Ct. 2018)
FACTS: The claimant worked as a courier and was
scheduled to work on a day when there was a severe winter storm warning. He was advised by his supervisors to complete
his route despite the winter storm but to drive slowly and carefully. Before the end of his shift, his vehicle slid
off the road and flipped several times, and he died as a result. The claimant’s widow (plaintiff) sued the co-employees,
his supervisors, alleging that they were negligent in sending the claimant on
his route despite weather conditions.
Co-employees moved for summary judgment, claiming that
the suit was barred by the exclusivity provision. The trial Court initially granted summary
judgment in favor of the co-employees.
The plaintiff appealed, and the Court of Appeals reversed the decision.
HOLDING: The co-employees appealed to the Missouri
Supreme Court, which reversed the Appellate Court’s decision and held that the
decision to have the claimant drive in inclement weather was a breach of the
employer’s non-delegable duty to provide a safe work place. Therefore, the plaintiff could not file a
wrongful death action against the co-employees.
Claimant
Injured in Course and Scope After Falling From the Top of a Truck Because He
Was Climbing Down from the Roof in Order to Leave the Premises After He was
Locked in, and He Was Not Equally Exposed to Risk of Falling Off a Truck
Outside of Work
Brown vs.
Superior Linen Supply Company, Injury No. 14-093366
The claimant sustained an injury on October 31, 2014
after he became locked inside the employer’s courtyard at the end of his shift
and was attempting to escape the premises by climbing a fire escape ladder to
the roof, walking across the roof to the other side of the building where
delivery trucks were parked, and climbing down onto the top of a delivery
truck. As he attempted to climb from the
truck to the ground, he fell and sustained an injury to his right ankle, for
which he underwent two surgeries.
At a Hearing, the claimant testified that he believed
he needed to climb down from the roof onto the truck in order to escape the
courtyard area and catch his bus. The
employer argued that the injury did not arise out of and in the course and
scope of employment because he was doing something that was not a normal work
activity. The ALJ found that the
claimant’s injury arose out of and in the course and scope of his employment
because climbing down from the roof was incidental to his work because he was
attempting to clock out and leave for the day.
The employer appealed to the Commission, which
affirmed the ALJ’s decision and Award with a supplemental opinion. The Commission noted that compensation is not
limited to workers who are injured while actively engaged in their job
duties. Instead, when considering
unequal exposure, the focus should be on whether the employee was injured because they were at work rather than
simply while they were at work. The
Commission reasoned that the claimant was injured because he became locked
inside the courtyard as the direct result of a normal work-related activity,
i.e. gathering his things before clocking out and heading home. Also, the risk of becoming locked inside the
employer’s courtyard was not a risk or hazard to which he would be equally
exposed outside of his employment.
Therefore, his injury arose out of and in the course and scope of his
employment.
Employer Liable for Future Medical, Despite Fact that
Future Medical Would Also Provide Treatment for Non-Work-Related Injuries
Morris vs. Captain D’s and Treasurer of the State of
Missouri as Custodian of the Second Injury Fund, Case Nos. SD34835 and SD34836 (Mo. App. 2018).
The claimant
was injured in two work-related accidents in January 2007. He had several pre-existing injuries and
disabilities. He was initially evaluated
by Dr. Volarich in January 2008, at which time the doctor opined he was PTD as
a result of his primary injuries in combination with his pre-existing medical
conditions and recommended ongoing pain management. The claimant proceeded to undergo multiple
surgeries with his personal doctor, including cervical and lumbar fusions. Dr. Volarich again recommended ongoing pain
management in December 2012 and testified that the need for future medical was
due to a mixture of his work injuries, pre-existing back problems, and his
subsequent neck and low back problems.
The employer presented medical testimony that the claimant did not
require additional medical treatment for either work injury.
At a Hearing,
the ALJ found the claimant PTD and the Fund responsible for the same. The ALJ also found Dr. Volarich persuasive
and held that the employer was liable for future medical treatment with respect
to the two primary injuries. The ALJ
noted that although Dr. Volarich was not clear as to which treatments were for
which disabilities/injuries, the doctor had not changed his mind that the
claimant required some treatment for pain as a result of his work
injuries. On Appeal, the Commission
affirmed the ALJ’s decision and Award.
The employer
appealed the award of future medical treatment and argued it was not supported
by substantial evidence on the record because Dr. Volarich testified that
treatment would be related to a “mixture” of work and non-work-related problems
and the “lack of clarity of specificity from Dr. Volarich… does not support a
finding that the claimant is in need of future medical treatment related to the
injuries of January 3, 2007 and January 14, 2007”. The Court agreed with the Commission and
affirmed its Decision and Award. The
Court noted that an employer may be ordered to provide future medical care that
will also treat non-work-related injuries if evidence establishes that the need
for treatment is caused by the work injury.
The Court reasoned that the claimant established a reasonable
probability that future treatment was needed for his neck and back due to the
January 2007 work accidents.
Claimant PTD
Due to Occupational Disease From Exposure to Biological Particulates Created By
Construction Project in Building Where He Worked As Janitor
Cooper
vs. Mid-Missouri Mental Help Center and Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
07-130828
The claimant, a 50-year-old janitor, was working for
the employer in the same building where a couple of construction/demolition
projects were occurring, which produced a large amount of white dust that the
claimant cleaned daily for approximately two months. He was not given a dust
mask or any type of protective gear. He
soon after developed multiple symptoms, including shortness of breath,
headaches, dizziness, blurred vision, and memory issues. He was ultimately diagnosed with
hyper-sensitivity pneumonitis and developed various other conditions as a
result of his treatment for the same.
The claimant’s medical expert, Dr. Parmet testified
that environmental sampling of the area where the claimant was working showed
that 20% of the dust he was exposed to was comprised of fungi and biological
particles, and in his medical opinion, exposure to a large amount of particles
in the air can overwhelm the body’s natural defenses and result in
hyper-sensitivity pneumonitis. Dr.
Parmet opined that this exposure was the prevailing cause of the claimant’s
conditions.
At a Hearing, the ALJ found Dr. Parmet’s testimony
persuasive regarding medical causation.
The ALJ noted that the claimant does not need to establish the exact
cause of the occupational disease if he can show that the disease is one that
the general public is not exposed to, and that there is a probability his
occupational activities caused the disease.
The ALJ held that the claimant met his burden to establish injury by
occupational disease that was medically causally related to work and ordered
the employer to pay PTD benefits, past medical expenses, and future
medical. The ALJ also ordered a 15%
penalty against the employer because it did not use any methods for the
prevention of occupational diseases caused by exposure to the dust. The ALJ reasoned that if the employer had
provided effective devices or a means/method of prevention, such as dust masks,
the occupational disease could have been prevented. On appeal, the Commission modified the ALJ’s
decision and Award with respect to the 15% safety penalty and noted that there
was no evidence on the record showing that there were effective devices, means,
or methods that existed for the prevention of the employee’s injury or that the
employer failed to provide the same.
Muscle Tear
and Hematoma Compensable Because Claimant Was Squatting in Order to Perform a
Job Duty, and Hematoma Prevailing Cause of Subsequent Staph Infection
Wilkins
vs. Piramal Glass USA, Inc., Case No. ED105683 (Mo. App. 2018)
FACTS: The claimant was squatting in an awkward
position while changing a spool at work, and when he stood up, he tore his left
calf muscle. He was also diagnosed with
a hematoma in his left calf and developed a staph infection in his left
leg. He underwent authorized treatment
and was placed at MMI. Notably, the
claimant was also diabetic and had a sore on his left ankle a few days prior to
his injury. He also treated for
cellulitis less than two months prior to his date of injury.
Dr. Woiteshek evaluated the claimant at his attorney’s
request and opined that the work accident was the prevailing cause of the
claimant’s muscle tear, hematoma, and the subsequent infection. Dr. Burns testified on behalf of the employer
that the claimant’s uncontrolled diabetes and the sore on his left ankle were
the prevailing causes of his infection.
Dr. Burns opined that although a hematoma can become infected, the
infection must enter the body another way, such as the ankle sore, and would
not spontaneously develop from a hematoma.
At a Hearing, the ALJ awarded compensation referable to the muscle tear
and hematoma, but not the staph infection, and held that the infection was not
medically casually related to the accident.
On appeal, the Commission reversed the ALJ’s decision and held that the
claimant’s work accident was the prevailing cause of the torn muscle and hematoma,
which in turn caused the staph infection.
The employer was ordered to pay PPD for all three conditions.
HOLDING: The employer appealed and argued that the
Commission erred in finding the injury arose out of and in the course and scope
of employment because rising out of a squatting position is something people do
outside of their employment, and therefore he would have been equally exposed
to that risk in his normal non-employment life.
However, the Court noted that the claimant was squatting at work in
order to replace a spool on the employer’s machine, which was a function of his
job, and according to Dr. Burns’ testimony, rising from this awkward position
caused the muscle tear. Therefore, the
claimant was injured because he was at work and not simply while he was at
work. The employer also argued that the
staph infection was not medically causally related to the torn calf muscle, but
the Court found the opinion of Dr. Woiteshek persuasive on the issue of medical
causation. Therefore, the Court affirmed
the Commission’s decision and Award.
Claimant Not PTD Because Testimony Regarding His
Complaints Not Credible When Compared to Other Evidence on The Record,
Including Surveillance Video
Page vs. OCCI, Inc. and Treasurer of Missouri as Custodian
of Second Injury Fund, Injury No.
08-096549
The claimant, a 43-year-old heavy equipment operator
and general contractor, sustained an injury to his left ankle and right knee at
work on October 3, 2008. The claimant
underwent multiple surgeries to the same, ultimately undergoing a complete left
ankle fusion in March 2011. He only
briefly returned to work in January 2011 before he “rolled” his ankle on
January 12, 2011, but none of the doctors who treated or evaluated the claimant
believed the 2011 incident was the prevailing cause of his left ankle condition
or need for surgery. He did not have any
significant pre-existing disabilities.
Mr. Weimholt, the claimant’s vocational expert, opined
the claimant was unemployable as a result of his 2008 injury. This opinion was based in large part on the
claimant’s subjective reports that he could not perform any interior or
exterior maintenance and had to use a cane to enter and exit vehicles. However, video surveillance of the claimant
obtained in 2009, 2013, and 2014 documented him pushing his motorcycle, walking
on the roof of a carport, loading lumber into a van, hooking a trailer to a
vehicle, operating digging equipment, entering and exiting a van without the assistance
of a cane, and helping lift a jackhammer, among other things.
At a Hearing before an ALJ, the claimant admitted to
performing all of the activities documented in the surveillance video. However, he continued to testify that he had
severe left ankle pain which made him unemployable. The ALJ did not find the claimant’s testimony
credible in light of the surveillance video and also noted that despite
testifying he had to take 5-10 pills of narcotic medication per week, he had
not filled a prescription for narcotic medication for two years. The ALJ found that the January 12, 2011
injury was not compensable because it did not result in a separate injury. The ALJ did find that the claimant sustained
70% PPD of the left ankle and 35% PPD of the right knee as a result of the
October 3, 2008 accident, but he was not PTD.
On appeal, the Commission affirmed the ALJ’s decision and Award.
Employer Liable for PTD Benefits Due to
Permanent Work Restrictions for Last Injury, Despite Fact Claimant’s Back Was
Treated Conservatively and She Had Significant Pre-Existing Disabilities
Carty vs. Southeast Missouri Mental Health Center –
State of Missouri and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No.
11-089630
The
66-year-old claimant sustained an injury to her low back when she lost her
balance on November 8, 2011, fell to the ground, and sustained an L2 burst
fracture with a 5-millimeter fragment retropulsion into the spinal canal. She was given a back brace and pain
medication and briefly underwent physical therapy. She did not undergo surgery. The claimant also had pre-existing
conditions, including ongoing discomfort and stiffness in her left knee after a
torn meniscus in 2005 and a disc bulge at L4-5 for which she underwent injections
in 2008 and continued to miss 2-4 days of work per month. However, she did not have any permanent work
restrictions for either injury.
Dr. Volarich
evaluated the claimant at her attorney’s request and assessed 35% PPD of the
lumbar spine due to her primary work injury as well as significant pre-existing
PPD to the lumbar spine and left knee.
However, Dr. Volarich recommended permanent restrictions of changing
positions frequently and resting as needed during the day, which were necessary
as a result of the last injury alone.
Vocational expert, Ms. Gonzalez, opined that the claimant was
unemployable as a result of Dr. Volarich’s permanent restrictions. The employer presented expert medical
evidence that contradicted Ms’ Gonzalez’s opinion.
At a Hearing,
the ALJ found the claimant’s testimony credible regarding her complaints and
the need to rest up to two hours during the work day. The ALJ also found the opinion of Dr.
Volarich persuasive and noted that the permanent restrictions recommended by the
doctor were referable to the primary injury alone. Therefore, the ALJ ordered the employer to
pay PTD benefits and future medical care.
On appeal, the Commission affirmed the ALJ’s decision and Award.
Employer Responsible for PTD Due to Claimant’s
Physical Injuries, Psychiatric Injury, and Opiate Dependency, Despite Fact
Medical Evidence and Surveillance Video Showed Claimant Was Exaggerating Her
Complaints and Disability
Houchen vs. Trimmasters, Injury No.
06-022626
The claimant,
a 57-year-old high school graduate, sustained an injury to her neck and
bilateral shoulders on January 13, 2006.
Dr. Rosenberg performed a cervical fusion at C5-6 on March 15,
2006. Dr. Frevert performed surgery to
repair a rotator cuff tear on the left shoulder on June 16, 2006, and on the
right shoulder on August 7, 2006 and a re-tear on February 22, 2007. The claimant developed depression as a result
of her injury and chronic pain and was prescribed Xanax but did not receive any
other treatment for the same. Medical
records also suggest that she developed an opiate dependency as a result of her
injury.
The doctors
on both sides agreed that the claimant’s neck and shoulder injuries and need
for surgery resulted from the work injury.
Dr. Poppa testified on behalf of the claimant’s attorney that the claimant
was PTD as a result of a combination of her physical injuries, mental
condition, and use of medications. Dr.
Caffrey provided the only vocational evaluation, on behalf of the employer,
wherein he noted that she was significantly exaggerating her level of
disability but still opined she was unemployable due to her physical limits and
lack of transferable skills. Pain
management specialists and the treating doctor opined the claimant was
exaggerating her complaints and noted she was also seeking opioid medication
from other physicians. Surveillance
video showed the claimant engaging in activities that were inconsistent with
her testimony regarding her level of disability. In particular, one video showed her
single-handedly pushing a stalled pick-up truck on a grassy parking area.
At a Hearing,
the ALJ agreed that evidence showed the claimant was significantly exaggerating
her pain complaints. However, the ALJ
also noted that she underwent four surgeries and suffered from depression and
likely opioid dependence as a result of her work injury. Also, Dr. Caffrey’s was the only vocational
opinion presented at the Hearing.
Therefore, the ALJ found the claimant to be PTD as a result of her
primary work injury and found the employer responsible for the same. On Appeal, the Commission affirmed the ALJ’s
decision and Award.
Employer Responsible for PTD Benefits After Primary
Injury Caused Low Back Injury and Psychological Condition, Which Required
Claimant to Take Narcotic Pain Medications and Take Frequent Breaks
Kittrell vs. Townsend Tree Service, Injury No.
12-085091
The claimant,
a 40-year-old high school graduate, sustained an injury to his low back on
October 30, 2012. Dr. Wayne recommended
lumbar ESIs and a TENS unit. Dr. Coyle
subsequently performed a lumbar fusion at L4-S1. He underwent additional injections with Dr.
Wayne and continued to complain of back and lower extremity symptoms. Dr. Coyle had the claimant undergo an FCE in
January 2014, and after the claimant refused to cooperate with the evaluator,
Dr. Coyle placed him at MMI. The
claimant proceeded to treat on his own with Dr. Harness. At a Hearing, the claimant testified that he
is limited by his back pain and also developed major depression as a result of
his injury. He testified that he is
unable to sleep more than two or three hours at a time and takes naps during
the day.
The
claimant’s attorney had the claimant evaluated by Dr. Woiteshek, a psychiatrist
Dr. Sky, and Mr. England, a vocational rehabilitation specialist. Dr. Woiteshek opined he was PTD as a result
of the work injury and recommended ongoing pain management. Mr. England opined the claimant was
unemployable in light of his lack of transferable skills below the medium
physical demand level, his poor math and reading levels, and his need to take
frequent breaks throughout the day. Mr.
Patsavas provided a vocational report on behalf of the employer and opined the
claimant was capable of working in the sedentary to light physical demand
category. However, Mr. Patsavas did not
consider the effect that being on medication would have on the claimant’s
ability to perform these jobs and that taking narcotic medication could prevent
him from being hired by employers.
At a Hearing,
the ALJ found the opinions of Dr. Woiteshek and Mr. England persuasive and the
claimant’s testimony credible regarding his disability. The ALJ held that the claimant was PTD as a
result of the work injury alone and noted his need to take frequent breaks and also
his psychiatric problems. The employer
was ordered to pay PTD benefits and provide past and future medical treatment
for the claimant’s physical and psychological complaints. On Appeal, the Commission relied upon the
ALJ’s credibility determinations and affirmed the ALJ’s decision and Award with
a supplemental opinion.
, Case No.
WD81083 (Mo. App. 2018)
FACTS: On March 11,
2014, the 35-year-old claimant sustained a compression fracture at T7 when a
tree fell on him. He underwent an
authorized ORIF and fusion of the thoracic spine along with an associated rib
resection for bone graft and additional procedures. He also underwent pain management with Dr.
Pang, who placed him at MMI, assessed 15% PPD of the body referable to the
thoracic spine, and recommended follow up with his personal doctor for
continued pain management.
Dr. Stuckmeyer evaluated the claimant at his
attorney’s request and recommended several permanent restrictions, including no
prolonged standing or walking and the ability to change positions frequently
throughout the day. Dr. Stuckmeyer
recommended evaluation by a vocational expert, who opined the claimant was
unemployable because, although positions might be available within the
claimant’s work restrictions, these would be for a highly skilled individual in
an office setting, and the claimant would not qualify.
At a Hearing, the claimant testified that on good days
he could perform some chores and yardwork, but he also testified that he had
difficulty sleeping and took up to five naps per day, and he had trouble
concentrating due to pain and had no experience using computers. The employer
presented surveillance video of the claimant performing various household
chores, including mowing his lawn, pushing a broom, and hosing down his
driveway. The ALJ found the claimant’s
testimony credible and held that he was PTD as a result of his last injury
alone. The ALJ reasoned that the
claimant could still be PTD despite being able to perform some type of work on
an ongoing basis, and the activities shown on the video did not translate to
the ability to perform sustained employment as they were “mere snapshots in
time.” The ALJ also noted that even Dr.
Pang, the employer’s doctor, reviewed the video and opined that “a one-time
surveillance video of one activity is not always reflective of one’s capability
to hold a full-time job.” On Appeal, the
Commission affirmed the ALJ’s decision and Award.
HOLDING: The Court
affirmed the Commission’s decision and Award and found the employer responsible
for PTD benefits. The employer argued
that the Commission’s finding was against the weight of the evidence because
the claimant’s testimony was inconsistent regarding his ability to do
yardwork. However, the Court found that
the ALJ and Commission found the claimant’s testimony regarding his
capabilities to be credible, and his testimony was supported by medical
evidence.
Fund Liable
For PTD Because Claimant Unemployable Due To Combination of Primary Injury,
Prior Injuries, Learning Disability, and Functional Illiteracy
Potts vs.
State of Missouri, Fulton State Hospital and Treasurer of Missouri as Custodian
of Second Injury Fund, Injury No. 11-063860
The claimant, a 54-year-old laborer, was working for
the employer on August 10, 2011 when he fell and sustained injuries to his low
back and neck. He underwent physical
therapy and multiple injections but did not undergo surgery. He returned to work with accommodations for
17 months before ultimately retiring.
The claimant also had significant pre-existing disabilities, including
frostbite injuries to both feet, Type II diabetes with neuropathy, right knee
pain, cervical DDD, and prior low back complaints. He also had a significant pre-existing
learning disability and was functionally illiterate. He had the equivalent of a fourth-grade
education and was admitted to Fulton State Hospital as a child for severe
behavioral problems.
At a Hearing, the ALJ found the employer was
responsible for 25% PPD of the body, 5% of which was referable to the neck and
20% was referable to the low back.
However, the ALJ found the claimant was not PTD.
The claimant appealed, and the Fund argued that it was
not responsible for PTD benefits because the claimant’s pre-existing conditions
were not a hindrance or obstacle to his employment because he had successful
worked with those conditions for over 30 years.
The Commission held that the claimant’s learning disabilities and
functional illiteracy qualified as a pre-existing permanent disability, and it
also held that the claimant’s preexisting physical and psychological conditions
were a hindrance or obstacle to his employment because they had the potential
to combine with a future work injury to result in worse disability than would
have resulted in the absence of the pre-existing conditions. The Commission
also held that the claimant was PTD as a result of his primary work injury
combined with his preexisting conditions because, although he could physically perform some jobs, his prior
academic history and illiteracy would significantly limit his ability to obtain
and perform those jobs. It also reasoned
that the claimant was only able to continue working for 17 months after his
injury due to an informal arrangement with his long-time employer, and a new
employer would be unlikely to provide the same accommodations to a newly hired
employee. Therefore, the Commission held
that the Fund was responsible for paying PTD benefits.
Fund Liable
for PTD Benefits Due to Combination Claimant’s Pre-Existing Physical and
Psychiatric Disabilities and Primary Injury
Kalajdzic
vs. St. Louis Children’s Hospital and Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
12-063341
The claimant, a 47-year-old nurse’s aide, was changing
the sheets on a bed that was awkwardly positioned, which required her to reach
across the bed to lift the mattress, when she sustained an injury to her low
back. Dr. Robson performed a three-level
lumbar fusion, and the claimant also required mental health treatment after her
work injury because she became depressed and heard voices. The claimant had a history of prior low back
issues and lumbar injections, most recently in December 2011, two months prior
to her date of injury. She also had a
history of depression and anxiety and had previously been prescribed Xanax.
Dr. Volarich evaluated the claimant on behalf of her
attorney and recommended permanent restrictions, including changing positions
frequently to maximize comfort and resting as needed, and he opined she was PTD
as a result of a combination of the primary injury and her pre-existing medical
conditions. Mr. England, a vocational
expert, opined the claimant was unemployable as a result of Dr. Volarich’s
permanent restrictions, her anxiety and sleep deprivation, and her need to lie
down throughout the day.
At a Hearing, the ALJ denied compensation and held
that the injury did not arise out of and in the course and scope of employment,
because the claimant failed to show a causal connection between her injury and
work.
On appeal, the Commission reversed the ALJ’s decision
and Award. The Commission found the
claimant’s testimony credible and held that she sustained an injury by accident
when she attempted to lift a mattress on a hospital bed that was in an awkward
position. The Commission found that the
claimant sustained 25% PPD of the body referable to her low back and 10% PPD of
the body referable to a psychiatric disability as a result of her primary
injury and was PTD as a result of the combination of her primary injury and
pre-existing disabilities. Therefore,
the Fund was responsible for PTD benefits, and the employer was ordered to pay
past medical expenses and provide future medical treatment.