Simon Law Group, P.C.
720 Olive Street, Suite 1720, St.
Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE
LAW UPDATE
January 2020 – March 2020
COVID – 19 &
Missouri Workers’ Compensation
Compensability –
It would be very
difficult for a claimant to prove that he or she contracted COVID-19 under the
theory of accident as an accident is defined as an unexpected traumatic event
or unusual strain identifiable by time and place of occurrence and producing at
the time objective symptoms of an injury caused by a specific event during a
single work shift. §287.020.2.
However,
COVID-19 could fall under the theory of an occupational disease which is
defined as an identifiable disease arising with or without human fault, out of
and in the course of employment. Ordinary diseases of life to which the general
public is exposed outside of employment shall not be compensable except where
the diseases follow as an incident of an occupational disease.
The disease need not to have been foreseen or expected but after its
contraction it must appear to have had its origin in a risk connected with the
employment and to have flowed from that source as a rational consequence.
§287.067.1
Also, for an
injury to be deemed compensable it cannot come from a hazard or risk unrelated
to the employment to which workers would have been equally exposed outside of
and unrelated to the employment in normal nonemployment life. §287.020.3(2)(b)
Therefore, in
order for COVID-19 to be compensable it is likely that a claimant will have to
work in the healthcare field, as they have a greater risk of coming into
contact with the virus. In other words,
a healthcare employee may be able to argue that they have a greater risk of
exposure at work than in their normal nonemployment life.
The Effect on
Current Claims
–
COVID-19 will
likely affect how claims are handled, as claimants that are treating may have a
delay in that treatment due to doctor’s offices closing or taking less patients
in a day in order to limit possible contact. Also surgeries could be
delayed/postponed. Furthermore, a claimant may become symptomatic and unable to
present to a doctor’s office. Of course, if a claimant is off work or on
restrictions that cannot be accommodated by the employer this could increase
TTD exposure.
Furthermore,
some employers are closing their doors due to temporary laws or by choice and
therefore some employees that were offered light-duty restrictions no longer
have that option. Therefore, this would open the employer up to TTD exposure
when there was none.
Claimant’s
Fall Not Compensable Because Claimant’s Testimony Regarding Condition of Floor
Not Credible
Annayeva
vs. SAB of the TSD of the City of St. Louis and Treasurer of Missouri as
Custodian of the Second Injury Fund, Case No. SC98122 (Mo. S.Ct.
2020)
FACTS: On January 8, 2013, the claimant, a teacher,
sustained an injury when she slipped and fell.
She had just entered the school building using a general entrance and
was carrying student papers and lesson plans, although she was not “clocked in”
at the time. She did not see any defects
in the linoleum tile floor, and when filling out an investigation report, she
did not mention any ice, salt, or dirt on the floor that caused her to slip and
stated that she “could not determine the cause of the accident.” The claimant alleged injuries to numerous
body parts as well as a psychological injury.
At a Hearing, the ALJ found the
claimant’s testimony was not credible and denied her claim due to lack of
causation. On appeal, the Commission
affirmed the ALJ’s Award, but based on the grounds that the claimant was not
injured in the course and scope of her employment. The Commission found that nothing about the
claimant’s work caused her to fall, and the hallway was “normal” where she
fell. When specifically asked by her
attorney, the claimant testified that the floor was dirty and moist, but the
Commission did not find her testimony credible and noted that none of the
medical records noted any hazardous conditions on the hallway floor. Therefore, the Commission found that the only
risk source was that of walking on an even flat surface, to which the claimant
was equally exposed in her normal non-employment life, and she failed to show
that her injury arose out of and in the course and scope of employment.
On appeal, the Court of Appeals
reversed the Commission’s decision. The
Court held that when the Commission rejected the claimant’s testimony regarding
the condition of the floor and found it was not credible, its opinion was based
on conjecture and unsupported by sufficient competent evidence in the record,
and the Commission’s Award did not provide a reasonable or substantial basis
for refusing to believe the uncontradicted testimony of claimant. With respect to the medical records, the
Court also held that medical records were meant to provide proof of medical
history and diagnosis, not proof of a hazard or risk present on the floor where
the claimant fell. Therefore, the fact
that they did not mention dirt or ice on the floor was not persuasive. The Court held that the claimant was injured
in the course and scope of her employment because the risk of her injury was
not simply walking on an even surface, it was walking in the employer’s hallway
which was dirty with dirt and ice, where she walked every workday as a function
of her employment. The Court also found
that it did not matter that the claimant had not yet clocked in at the time of
her injury because the employer owned and controlled the hallway where she
fell. Therefore, the Court reversed the
Commission’s decision and transfer was granted to the Supreme Court.
HOLDING: The Missouri
Supreme Court noted that the Commission determined that the claimant’s
testimony was not credible. Because the Court is bound by the Commission’s
credibility determinations when they are expressed in the award or denial of
benefits and the weight the Commission gives to conflicting evidence, it must
treat the claimant’s testimony regarding the condition of the floor as not
persuasive. Since the claimant failed to produce any credible evidence
regarding the soiled condition of the floor, her walk into school was no
different from any other walk taken in her normal, nonemployment life.
Therefore, her claim is not compensable, and the Court affirmed the
Commission’s denial of benefits.
Claimant’s Fall
Not Compensable Because Claimant Just Walking
Gray v. Hy Vee
Food Stores and Treasurer of the State of Missouri Custodian of the Second
Injury Fund,
Injury No. 14-074997
The claimant, an
82-year-old employee, had walked approximately 15 to 20 steps into the store
and fell sustaining an injury to her left shoulder. She did undergo a shoulder
replacement on her own. At a hearing she testified that although her Claim for
Compensation stated that she slipped due to water on the floor she was not
aware of any water on the floor when she fell. She did note that the parking
lot was wet with dew and it was likely that she had water on her shoes. She had
her normal tennis shoes on which she wore to work everyday and did not believe
they had any defect. She testified that she fell suddenly and had no idea why
she fell. She was not aware of any condition which would have caused her to
fall. There was no water or substance on her clothes when she got up from the
floor.
A co-employee
testified that she saw no water or food on the floor that could have
contributed to the claimant’s fall. Also the claimant’s supervisor testified at
the hearing. She testified that the area where the claimant fell was not an
area of normal foot traffic. She found no wet area or water in the area where
the claimant fell. She also testified that the claimant told her that her shoes
had been sticking and that her son had planned on taking her to get new shoes.
Also the kitchen manager testified that he was there shortly after the
claimant’s fall and there was nothing which could have caused the claimant’s
fall. He also testified that the claimant said “those darn shoes got me” and
said that it was her second fall in her shoes.
Also when she
presented to the emergency room it was noted that she “was walking when she
tripped over her own feet and landed on her left arm.”
The ALJ found
that the claimant failed to sustain her burden of proof that she sustained an
accident that arose out of and in the course of her employment. There was no
evidence that the claimant did anything other than walk into the store and fall
after taking 15 to 20 steps. She was not able to identify anything related to
Hy Vee or her work for Hy Vee that caused her to fall. There was no evidence
that work was the prevailing factor in causing her to slip and fall, and
moreover there was no evidence that walking on the grocery store flooring was a
hazard or risk to which she was not equally exposed in her nonemployment life.
The Commission affirmed the decision of the ALJ.
>Claim Denied as
Claimant’s Condition Due to Degenerative Conditions and Not Unexpected
Traumatic Work Accident
Williams v.
Lutheran Senior Services and Safety National Casualty, Injury No.
18-001826
On January 15,
2018, the claimant slipped and fell on ice and landed with her left arm
extended out from her body trying to brace herself. The employer sent the
claimant to BarnesCare and she was referred for an MRI which showed arthritic
changes and tendinopathy with tears of the infraspinatus and supraspinatus
tendons. The employer then sent the
claimant to Dr. Young who opined that the work incident was not the primary and
prevailing cause of her shoulder symptoms.
He noted the claimant had a severely arthritic shoulder and the work
accident exacerbated the underlying symptoms of the severe arthrosis. The direct fall onto the shoulder caused a
flare-up of the underlying symptoms related to her chronic underlying condition
that relate to her chronic severe arthritis.
Dr. Young recommended further treatment including steroid injections and
ultimately a shoulder replacement. However, he noted the injury was not
directly related to the work incident.
The claimant
went on her own to Dr. Wright who opined that she had left shoulder
glenohumeral arthritis and a left shoulder full thickness rotator cuff
tear. He injected her shoulder and
referred her to Dr. Aleem who reviewed the MRI and stated he did not see a full
thickness rotator cuff tear but did opine that she would be a good candidate
for a total shoulder replacement.
The ALJ found
that there was an unexpected traumatic event. However, the evidence shows that
a work-related injury did not occur as defined by §287.010.2 which states that
an injury is not compensable because work was a triggering or precipitating
factor. Additionally, the ALJ found that
while the fall exacerbated or triggered the claimant’s arthritic left shoulder
symptoms and complaints, there was no evidence presented indicating that the
claimant’s injury was the prevailing factor in causing the injury or need for
treatment, and therefore denied the claim.
The claimant
then appealed to the Commission. The
Commission found that while there was an unexpected traumatic event when the
claimant fell, the injury was not caused by this specific event. Additionally, the Commission found that an
injury by accident is compensable only if the accident was the prevailing
factor in causing both the resulting medical condition and disability and since
Dr. Young credibly opined that the shoulder condition was not directly related
to the work incident, the injury was not compensable. Therefore, the Commission affirmed the ALJ’s
Award denying compensation.
Tinnitus Found
Not Work Related
Schlereth v.
Aramark Uniform Services Inc., Treasurer of the State of Missouri Second Injury
Fund,
Case No. ED107806 (Mo. App. 2019)
FACTS: On October 8, 2014, the claimant, a production supervisor, verbally
reprimanded two subordinates for leaving wet linen on the production line
without spinning it dry and called their actions “stupid.” In response, one of
the subordinates spit in the claimant’s face and punched him repeatedly which
caused him to fall and hit his head against a washing machine. After the
incident, the claimant was driven to the emergency room and diagnosed with a
facial contusion. Nine days after the incident, he saw his treating physician,
but did not complain of any ear issues then or on subsequent visits. In October
2017, he filed a Claim alleging tinnitus as a result of the work injury.
Dr. Cohen, the
claimant’s expert, diagnosed a mild traumatic brain injury and resulting
tinnitus. He did admit that tinnitus could be caused by a multitude of other
external factors including the medication meloxicam, which the claimant had
been taking before the work accident. Dr. Peeples testified on behalf of the
employer and it was his opinion that generally people with posttraumatic
tinnitus also have symptoms of a traumatic brain injury and the claimant had no
such symptoms. The ALJ concluded that the work accident was not the cause of
the claimant’s tinnitus because he offered “no evidence” of the cause of the
same. The ALJ also believed that Dr. Peeples’ testimony regarding causation was
more persuasive than Dr. Cohen’s. The claimant appealed.
The Commission
found the ALJ’s award was supported by sufficient and competent evidence and
affirmed the Award. The claimant again appealed.
HOLDING: The Court
affirmed the Commission’s decision noting that the Commission reviewed the
claimant’s emergency room records, which indicated that he had no fractures,
mild pain severity, mild ringing in the right ear only, and was released the
same day without medication. The Court also noted that the Commission did not
error in finding the testimony from Dr. Peeples more persuasive than Dr. Cohen
as it is the Commission’s function to accept or reject medical evidence.
Although the record did not support the Commission’s finding that the claimant
offered “no evidence” regarding the causation of his tinnitus since he did
present testimony from Dr. Cohen, the Court found the Commission properly
concluded based on the evidence provided that the work accident did not cause
the claimant’s tinnitus.
Claimant
Entitled to Future Medical Treatment as the Need for Future Medical Care Flowed Directly from the Work-Related
Injuries
Hooper v.
Missouri Department of Corrections, Injury No. 14-027947
On April 23,
2014, the claimant sustained a twisting type injury to his right knee. Dr. King performed a right knee arthroscopic
partial medial meniscectomy on June 3, 2014.
He was subsequently released at MMI with no restrictions. On January 27, 2015 the claimant sustained a
second injury at work and on March 20, 2015, after failed conservative
treatment, Dr. King performed a right knee partial medial meniscectomy and
chondroplasty. Thereafter, he was again
placed at MMI with no restrictions.
Dr. Volarich
assessed 40% disability as a result of the first injury and 30% disability as a
result of the second injury. Dr. Thomas also examined the claimant at the
claimant’s attorney’s request and opined the claimant’s work injuries and
resulting surgeries had aggravated his pre-existing degenerative arthritis to
the point where he would require additional treatment. He further stated that the injury lead to the
tear in the meniscus which lead to the surgery which lead to the disruption of
the mechanics of the knee joint that lead to the degenerative changes
necessitating a knee replacement.
Dr. King, the
treating surgeon, reviewed the reports and testimony of Drs. Thomas and
Volarich and strongly disagreed that his right knee symptomatic arthritis
flowed from either work injury. He
opined the claimant suffers from a progressive degenerative condition.
The ALJ assessed
disability and concluded that the need for future medical care flowed from
the work-related injuries.
The employer
appealed to the Commission who affirmed the Award of the ALJ as it noted that
the claimant was entitled to future medical treatment as may be reasonably
required to cure and relieve the effects of the injury.
Part-time
Claimant Entitled to Rate Based on Forty Hour Work Week, Not 30 Hour Rule
Graham v.
Rosewood Health & Rehabilitation Center LLC and HealthCare Facilities of
Missouri,
Injury No. 14-073249
On July 15,
2014, the claimant was employed as a part-time CNA and was squatting down in
front of an obese patient, moving her catheter so she could help the patient
transfer when the patient’s leg dropped on the claimant’s neck, shoulder and
back causing her to fall to her knees.
She was seen by
Dr. Patel for neck and chest pain and diagnosed with symptoms consistent with a
neck strain, myofascial pain, chest wall pain and thoracic stenosis. He conducted electrodiagnostic studies which
did not suggest acute cervical radiculopathy, plexopathy or peripheral nerve
injuring the upper lungs. Dr. Patel
released the claimant at MMI without any restrictions.
The claimant
then requested additional medical treatment. However, it was denied. She went
on her own and underwent a second electrodiagnostic study which revealed mild
right ulnar nerve compression but no evidence of radiculopathy. She also underwent MRIs of her cervical spine
and brain which were normal.
The employer
obtained a report from Dr. Fevurly who concluded that the claimant reached MMI
when she was placed at MMI by Dr. Patel. He did not recommend any additional
treatment and assessed 1% disability to the body.
The claimant’s
attorney obtained a report from Dr. Stuckmeyer who diagnosed chronic cervical,
thoracic and lumbar pain. He recommended
an MRI of her thoracic and lumbar spine and assessed 20% disability to the
body.
The ALJ
determined that the employer was not liable for past medical expenses after she
was released at MMI or for future medical care as many of the medical
examinations and treatment were repetitive to the treatment she had previously
received and none of the medical providers recommended any additional medical
treatment. The Judge also determined
that the claimant sustained 10% disability and used the 30 hour rule to
calculate the rate. The claimant appealed.
The Commission
modified the Award of the ALJ with respect to the claimant’s rate. The
Commission did not believe that the 30 hour rule was appropriate. The claimant
testified that she worked between 20 and 40 hours per week and that a full-time
CNA worked 40 hours a week. The commission looked to a 1989 Court of Appeals
case and stated that public policy encourages equitable compensation rates for
part and full-time employees, and therefore, the Commission believed that the
rate should be calculated based on a 40 hour workweek, not the 30 hour rule.
Commission
Affirmed ALJ’s Award of Permanency That Did Not Take Reduction At Elbow For
Compensation Placed on Wrist
White v. The Doe
Run Company, American Zurich Insurance Company and Treasurer of Missouri as
Custodian of Second Injury Fund, Injury No. 16-011501
The claimant
began working for the employer in 2007 and performed repetitive work. He
developed bilateral carpal tunnel and bilateral cubital tunnel and underwent
surgery for the same. The claimant’s attorney obtained a report from Dr.
Schlafly who recommended an additional surgery for treatment of the claimant’s
bilateral cubital tunnel syndrome. The
employer obtained a report of Dr. Brown who did not recommend any additional
treatment. The doctor further opined
that although it is possible performing an anterior transposition of his ulnar
nerve might improve his symptoms, there was a risk that surgery might make the
claimant worse and therefore he released the claimant from care. At the time of the hearing the claimant
testified he wanted the additional medical care but not by Dr. Brown.
The ALJ found
that the claimant sustained 17.5% disability of right wrist, 28.75% disability
of the right elbow, 17% disability of the left wrist and 26.45% disability of
the left elbow. He also awarded 20 weeks
of disfigurement and future medical treatment. The employer appealed.
The employer
argued that the ALJ’s findings on the issue of nature and extent of disability
were excessively high and unsupported by competent evidence because his Award
exceeded the disability rating of the employer’s authorized treating physician,
Dr. Brown.
The employer
also argued that the ALJ erred when he failed to reduce the amount of PPD
awarded to the claimant to account for injuries that involved individual
component parts of the same extremity. The employer pointed to a 1992
Commission Decision where it was found that a reduction was appropriate. The
Commission noted that the case was never appealed but it does not represent
judicial precedent. The Commission also noted that based on strict construction
there is no provision for discounting an Award based on an assessment of
disability to individual component parts of the same extremity.
The Commission
affirmed the ALJ’s assessment of PPD and disfigurement. With respect to the
ALJ’s Award of future medical relating to the claimant’s bilateral carpal
tunnel and bilateral cubital tunnel, the Commission found that because the
claimant had demonstrated a reasonable probability that future treatment was
needed, the Commission affirmed the ALJ’s Award of future medical.
Claimant Found
to Have Minimal Pre-existing Disability in Hand Despite Prior Settlement of 15%
of Hand
Fenwick v. The
Doe Run Company, American Zurich Insurance Company and Treasurer of Missouri as
Custodian of Second Injury Fund, Injury No. 14-036462
The claimant
began working for the employer in 2007, performed repetitive work and developed
bilateral carpal tunnel and underwent releases. Thereafter he had various
continuing complaints. The ALJ found that the claimant suffered 20% disability
of each wrist and assessed four weeks for disfigurement.
The employer
appealed arguing that the ALJ erred in failing to factor in PPD attributable to
a 2002 injury involving the claimant’s right finger and a right extensor tendon
repair. Dr. Rotman assessed 5% disability to the hand as a result of that
injury. The claimant settled that claim for 15% of the hand.
The Commission
noted that at the claimant’s evaluation with Dr. Volarich he found there may be
a small amount of disability from the minor extensor lag but that is considered
too small to quantify since he was asymptomatic in the right hand leading up to
his current work injuries. The Commission also noted that Dr. Cantrell
evaluated the claimant in 2015 and there was no rating of pre-existing
disability attributable to the claimant’s 2002 right hand injury. Therefore,
based on these two physicians’ opinions the Commission found that the claimant
sustained minimal PPD attributable to his 2002 right finger injury and concluded
that the ALJ’s Award of PPD gave appropriate credit for pre-existing
disabilities as his Award specifically stated. Therefore, the Commission
affirmed the Award of the ALJ.
Fund Not Liable
for Compensation as Claimant did not Prove Work Injury Aggravated or
Accelerated Pre-Existing Conditions
Dubuc v.
Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No.
WD82809 (Mo. App. 2020)
FACTS: On October 30,
2015, the claimant fell off a ladder and sustained a laceration of his left
kidney with perinephric hematoma and a fracture of his left wrist. The claimant filed a Claim on November 20,
2015. He settled his claim with the employer on for 30% PPD of the left wrist
and 13.5% of the body. He went to a hearing against the Fund for PTD benefits.
At the hearing
he testified that he had continuing complaints in his hand. He also testified
about four pre-existing disabilities: 1) In April of 2010, he sustained
fractures to his L2 and L3 vertebrae after falling off a wall while fishing; 2)
In August of 2011, he was diagnosed with DVT and Factor V Leiden, a genetic
mutation that causes excess blood clotting; and 4) In 2012, he was diagnosed with
and treated for depression.
The claimant’s
attorney obtained reports of Dr. Mullins and Dr. Strauser, a vocational expert,
who both opined that the claimant was PTD as a result of a combination of the
work injury and his pre-existing conditions. The ALJ concluded that the
claimant failed prove that he was PTD as a result of a combination of his work
injury and his pre-existing condition as it appears he believed that the
claimant was PTD as a result of the work injury alone.
The claimant
appealed to the Commission, who reversed the ALJ’s Award and found the claimant
was PTD. The Fund appealed.
HOLDING: The Fund argued
that because the claimant’s work injury occurred after January 1, 2014, §287.220.3
applied, and therefore, the claimant was not entitled to compensation from the Fund
because his pre-existing conditions did not fall into one of the categories
required for Fund liability. The Court agreed and found that the Commission’s
Award did not address which, if any, of the claimant’s pre-existing
disabilities were medically documented pre-existing disabilities or whether the
claimant’s qualifying pre-existing disabilities directly and significantly
aggravated and accelerated the subsequent work-related injury. Therefore, the Commission’s
Award was reversed and remanded.
SIF Not Liable
for PTD benefits Because Claimant Filed Claim After January 1, 2014 and
Claimant Did Not Prove Pre-existing Conditions Fell into 1 of 4 Categories
Coffer v. Health
Management Associates Inc. and Treasurer of Missouri as Custodian of Second
Injury Fund,
Injury No. 13-104240
The claimant
worked at Twin Rivers Regional Medical Center as a PBX operator for 23 years
and she developed pain, tingling, numbness and cramping in her hands. She filed
her claim on November 24, 2014 and the date of the occupational disease listed
was December 13, 2013. She settled her claim against the employer for 18.75% of
the body referable to carpal tunnel syndrome in both wrists. She proceeded to a
hearing against the Fund for perm total benefits.
The claimant’s
attorney obtained a report of Dr. Poetz
who opined the claimant had pre-existing disabilities in the amount of 15%
disability due to anxiety, 35% disability of the cervical spine due to a
fusion, 25% disability of the body due to colon cancer, 25% disability of the
lumbar spine due to a decompression and 25% disability of the right elbow due
to epicondylitis which required surgery. Due to the work injury, Dr. Poetz
opined that the claimant sustained 30% disability of the right and 25% of the
left hand. Ms. Shea opined the claimant was not employable.
The claimant was
also evaluated by Dr. Hinton who opined that the claimant was PTD due to a
combination of the work-related injuries and pre-existing conditions and
disabilities.
The ALJ found
the opinions of Dr. Poetz and Dr. Hinton persuasive and found that the claimant
was PTD as a result of the combination of her pre-existing injuries and the
work injury, and therefore, the Fund was liable for benefits. The Fund
appealed.
The Commission
reversed the Award of the ALJ. Since the claimant filed her claim after January
1, 2014, §287.220.3 applies and since the claimant did not prove that her
pre-existing conditions fell into one of the categories that would place
liability on the Fund, the Fund was not liable for benefits.
Court Confirms It
Will Defer to ALJ’s Credibility Determinations
Parvin vs.
Camcorp Environmental, LLC, Missouri Employers Mutual Ins. Co. and Treasurer of
the State of Missouri as Custodian of the Second Injury Fund, Case No.
SD36281 (Mo. App. 2020)
FACTS: The claimant
began working for the employer in 2012. He operated heavy equipment doing
environmental cleanup caused by the Joplin tornado. The claimant filed an
occupational disease claim alleging injury to his arms, shoulders and back. He
did have a history of rotator cuff surgeries and two lower back surgeries. At a
hearing, the ALJ expressly found that the claimant had not proved his claim
because he was not a credible witness and his medical expert was not as
persuasive as the employer’s. The claimant appealed and the Commission
affirmed. The claimant again appealed.
HOLDING: The Court noted
that they reviewed the ALJ’s decision because it was adopted by the Commission
and they defer to the ALJ’s credibility determination, weighing of evidence,
and decision between competing medical theories. It was the claimant’s burden
to prove all elements of the claim and the Court noted that the statute only
allows the Court to grant a claimant relief if “there was not sufficient
competent evidence in the record to warrant the making of the Award.”
The claimant’s
three arguments alleged that the ALJ’s determinations lacked competent and
substantial evidence. The Court noted that the standard of review for this kind
of challenge requires that the claimant engage in a specific analytical process
which he did not do, and therefore, the Court found that his arguments were
stripped of any analytical or persuasive value. In any event, the Court did go
on to address the claimant’s three arguments and were not persuaded.
The Court
concluded it is well settled that weighing of conflicting medical testimony
lies within the Commission’s sole discretion and cannot be reviewed by this Court.
Therefore, they are bound by the ALJ’s decision as to which of the various
medical experts to believe. Therefore, the Commission’s Award was affirmed.
Commission Does
Not Have Statutory Authority to Increase Amount of PPD Claimant Received After
ALJ Approved Settlement Stipulation Despite Claim that Claimant’s Condition
Worsened
Ritch vs.
Professional Transportation, Inc., and Treasurer of the State of Missouri,
Custodian of the Second Injury Fund, Case No. SD36435 (Mo. App.
2020)
FACTS: On June 11,
2014 the claimant suffered a back injury at work. He filed a Claim on November
30, 2015 and on April 17, 2017 an ALJ approved a settlement for 31% of the body
referable to the spine. Future medical was left open. On August 7, 2019, the
claimant’s attorney filed a petition to the Commission alleging that the
claimant’s condition had worsened since the settlement was approved, and
therefore the settlement was no longer reasonable and should be increased. The
Commission dismissed the claimant’s petition for lack of statutory authority to
consider it.
HOLDING: The claimant
appealed and argued that since his settlement left future medical open, the
Commission had statutory authority under §287.470 to change or review the Award.
The Court was not persuaded. The Court noted that §287.470 applies to Awards,
not settlements. Also, the Court noted that the claimant was not asking the
Commission to decide an issue of future medical care rather he was asking the
Commission to set aside the compromise settlement and increase the PPD, and the
Commission had no statutory authority to do so. Therefore, the Court affirmed
the Commission’s decision.
Claimant
Entitled to TTD Despite Employer’s Allegation That Claimant Not Entitled to TTD
Due to Post-Injury Misconduct Because His Absence Was Due to Injury
Hicks vs. State
of Missouri, Department of Corrections and Treasurer of Missouri as Custodian
of the Second Injury Fund, Case No. ED108023 (Mo. App. 2020)
FACTS: The claimant
began working on a probationary status for the Correctional Center as a
Corrections Officer in late 2013. He was required to complete both nine months
of full-duty employment and a formal training program in the classroom and on
the job. On January 2, 2014 during defensive tactics training, he suffered an
injury to his left shoulder. Dr. Emanuel performed a shoulder surgery and he
was released from care. He requested additional treatment which was denied. The
claimant was then terminated on November 25, 2014 specifically citing
unauthorized absences, exhaustion of paid leave, failure to request or be
approved for leave without pay, failure to return to work and failure to report
for a mandatory pre-disciplinary hearing.
The claimant’s
attorney obtained a report of Dr. Snyder who recommended additional treatment
and opined that he was unemployable and unable to compete in the open labor
marked since his January 2014 injury. The employer then authorized additional treatment
with Dr. Emanuel who performed a second shoulder surgery. Dr. Emanuel released
the claimant at MMI, however, the claimant still did not believe his shoulder
had improved enough to return to work, and therefore Dr. Emaunel recommended a
second opinion. He then saw Dr. Lenarz who performed a third shoulder surgery. He
was later released at MMI on February 10, 2016.
The claimant
then filed his claim seeking to recover unpaid TTD until he reached MMI on the
stipulated date of February 10, 2016. The employer argued TTD was not owed
because the claimant was terminated for post injury misconduct. The ALJ
concluded the claimant’s testimony was credible that he was unable to return to
any employment before he reached MMI on February 10, 2016, and therefore he was
entitled to TTD. The employer appealed and the Commission disagreed that the
claimant was entitled to TTD benefits since he was terminated for post injury
misconduct. The Commission found that the claimant was not terminated “merely”
because of his absences but rather because he failed to follow the proper
procedure to report the absences which constituted misconduct. The claimant
then appealed.
HOLDING:
The
Court noted that the statue expressly and unambiguously states misconduct
“shall not include absence from the workplace due to an injury unless the
employee is capable of working with restrictions certified by a physician.” The
Court found that the employer was not merely left to ponder why the claimant
failed to appear for his scheduled shifts but instead was certainly on notice
that he refused to return to work without further medical treatment. While the Court
agreed with the Commission that the employer could terminate the claimant for
misconduct by failing to follow the proper procedure regarding reporting his
absences, the denial of TTD benefits was not warranted since the absences
related to an injury. Therefore, the Court reversed and remanded the
Commission’s decision with instructions to reinstate the ALJ’s award of TTD
benefits.
Claimant
Not Entitled to Enhanced Benefits as Employer Could Not Elect to Accept
Liability for Enhanced Benefits
Hegger, Deceased
v. Valley Farm Dairy Company, et. al., Case No. SC7993 (Mo. S.Ct.
2020)
FACTS: The claimant
was last exposed to asbestos at the employer in 1994. The employer went out of
business in 1998. The claimant died in 2015 from mesothelioma which was caused
by his exposure to asbestos while working for the employer.
At a hearing,
the ALJ addressed the sole issue of whether the claimant was entitled to
enhanced benefits under §287.200.4(3). The ALJ found that neither of the
insurers who insured the employer during the claimant’s dates of employment
were liable for any enhanced benefits because the enhanced benefit provision
did not go into effect until January 1, 2014. The ALJ reason that the employer
could not have possibly elected to be liable for enhanced benefits because it
went out of business in 1998. Therefore, the claimant was not entitled to
enhanced benefits.
On appeal, the
Commission affirmed noting that the employer ceased operation 16 years before
the statute took effect, and therefore could not have elected to accept
enhanced liability under that section. The claimant again appealed to the Court
of Appeals and the case was transferred to the Supreme Court.
HOLDING: The claimant
argued that because the employer maintained an insurance policy that ensured
its entire workers’ compensation liability during the time it employed the
claimant, the employer elected to accept mesothelioma liability under the plain
language of the statute. The Court did not agree and found that the Commission
did not err in finding that electing to accept enhanced mesothelioma liability
requires an affirmative act by the employer. The term “elect” is the operative
verb that is not defined in workers’ compensation law. The Court noted that
when a term is not defined by statute the Court will give the term its “plain
and ordinary meaning as derived from the dictionary.” The Court noted that
“elect” per the dictionary is to make the selection or to choose, both of which
are an affirmative act. Because the employer ceased operations in 1998 and the
enhanced benefit did not exist until 2014 it could not have affirmatively
elected to accept liability for the enhanced benefits.
The claimant also argued that defunct employers should be deemed to have
elected to accept liability for the enhanced benefit so long as the employer insured
its entire workers’ compensation liability at the time of the claimant’s last
exposure. The Court was not persuaded. Therefore, the claimant was not entitled
to enhanced benefits under the workers’ compensation statute.
