Simon Anderson Law P.C.
720 Olive Street, Suite 1720, St.
Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE
LAW UPDATE
July 2020 – September 2020
Claim
Denied as Claimant Not in Course and Scope Because No Hazard
Connected to Employment Caused Falls
Smith
v. Lester E. Cox Medical Centers,
Injury No. 17-011723
FACTS:
The
claimant sustained separate injuries from two falls at work. The
first occurred near quitting time on February 21, 2017 when she was
walking in the hallway and she landed on her left elbow. She was
referred to Dr. Hicks who performed an open reduction with internal
fixation of hardware. The hardware was removed at a later date. While
on modified duty, the claimant fell again on April 25, 2017 after she
was standing at a board with the listed surgeries and turned and
began walking down the hallway. She landed on her left shoulder,
elbow and hip.
She
testified that the floors where she fell on each date were slippery
from buffing or polishing though she did not know when the
maintenance crew buffed the floors. She could not remember whether
the floors were more or less slippery between her two falls and did
not know whether anyone else had fallen in the same hallways between
February 21 and April 25, 2017. She heard that there were some people
who had fallen in the surgical department but she did not know their
names. She testified that a coworker told her that she too had
slipped because of the floor, though the coworker had not fallen.
Neither the coworker nor any other witness testified regarding the
condition of the floors.
Immediately
after she fell on February 21, 2017, she told emergency room
personnel that she had been “walking down the hallway, tripped
and fell on her left elbow, denies LOC, denies neck or back pain…”
and two days later when she saw Dr. Hicks, he recorded in the medical
record that she tripped. She disagreed with his recitation and
believed she told him she had slipped. Following her second fall the
emergency room staff recorded that “patient states: she tripped
over something while working (in OR) and fell…C/o left hip
pain.” The claimant disagreed with this statement. Upon her
admission to the hospital that same day Dr. Smith recorded that the
claimant was not sure why she fell. She did not remember what she
told the admitting physician. In a recorded statement taken by the
employer’s third-party administrator the claimant stated she
tripped and blamed it partly on her shoes which she stated she threw
away. The claimant agreed with the accuracy of the recorded statement
but stated she was emotional at the time and had been blaming
herself.
The
claimant saw a psychologist on May 9, 2017 who reported that the
claimant stated she purchased a new pair of shoes in February 2017
and the soles kept catching on the floor and she noted she fell while
wearing the shoes in late February.
According
to the ALJ the issue was whether there was a risk source associated
with the job that caused the claimant to fall on each occasion. A
claim will be denied when the claimant fails to prove that there was
a work hazard risk or risk of injury to which the employee would not
have been exposed outside of work. In the instant case, the claimant
did not prove that, more likely than not, a condition at her work
place posed a risk of injury greater than what she faced off the job.
She did not notice any hazards including substances on the floor,
defects or any problems immediately afterward, and she gave different
accounts of why she fell and believed that her shoes were at least
partly to blame. Therefore, the ALJ concluded that the claimant did
not meet her burden of proof of persuasion that there was a risk
connected to her employment greater than one faced in her normal
non-employment life. Therefore, the claim was denied. The claimant
appealed.
HOLDING:
The Commission affirmed the Award and decision of the ALJ.
Post
Injury Misconduct Proven Therefore TTD Benefits Not Owed
Paxton
v. Little Sisters of the Poor & Old Republic Insurance Company,
Injury No. 14-001314
FACTS:
On January 11, 2014 while walking in the parking lot at work the
claimant slipped on ice and fell and injured her left ankle. Several
days later while in crutches the claimant fell again and lacerated
her right elbow. She underwent authorized treatment with Dr.
McCormick who diagnosed a distal fibula fracture in the left ankle on
January 16, 2014. After the fracture healed the claimant continued to
experience pain and the doctor recommended an evaluation. He was then
seen by Dr. Tung who performed surgery on March 31, 2015. She then
treated with Dr. Keener who diagnosed olecranon bursitis of the right
elbow.
The
claimant’s supervisors, Ms. Avery and Mr. Deering, who
testified on behalf of the employer, terminated the claimant on May
5, 2014 after several policy violations including leaving a medicine
cart unlocked twice and failing to supervise patients to make sure
they took their medicine. The
employer argued that the claimant engaged in post injury misconduct
and was therefore not entitled to the TTD benefits she received. The
ALJ concluded that the testimony of Ms. Avery and Mr. Deering was
less than credible and that based on the exhibits and evidence, the
employer did not meet its burden to prove the claimant engaged in
post injury misconduct.
The
claimant’s attorney obtained a report of Dr. Volarich who
connected the claimant’s ankle condition back to the work
injury and assessed 40% disability of the left ankle and 20%
disability of the right elbow. The employer obtained a report of Dr.
Krause who concluded that the claimant’s left ankle fracture
and need for non-operative treatment was related back to the work
injury. However, he did not believe that the superficial peroneal
nerve injury was related to the work injury. In any event, the ALJ
believed Dr. Volarich was more credible and connected the claimant’s
peroneal nerve injury back to the work injury.
HOLDING:
The
Commission modified the Award finding that the claimant’s
actions constituted misconduct as she violated employer’s known
policy as well as state safety regulations when she left a cart with
controlled medications unlocked and out of her sight which was
irresponsible, unlawful and dangerous behavior, regardless of whether
she intended harm or harm resulted. Therefore, she was not eligible
for TTD after her May 5, 2014 discharge.
Application
for Payment of Additional Reimbursement of Medical Fees Dismissed
Because Not Filed Within One Year of Notice of Dispute
Chesterfield
Spine Center, LLC, d/b/a St. Louis Spine and Orthopedic Surgery
Center v. Best Buy Company, Inc. and XL Insurance America, Inc.,
Case No. WD83757 (Mo. App. 2021)
FACTS:
On
April 27, 2013 an employee of Best Buy was injured when a
refrigerator fell on him. On December 22, 2015 Chesterfield Spine
Center (“Chesterfield”) provided authorized treatment to
the claimant and billed the employer $125,184.60. On May 23, 2016
Sedgwick Claims Management sent Chesterfield a check for $50,629.23
along with an Explanation of Bill Review. On August 16, 2017
Chesterfield filed an Application for Payment of Additional
Reimbursement Medial Fees asserting that Chesterfield is entitled to
the additional $74,555.37 for the authorized treatment. In response,
the insurer filed a Request for Award on undisputed facts asking the
Division to deny Chesterfield’s Application as untimely under
Section 287.140.4.
The
insurer’s request asserted that 1) the date of service was
December 22, 2015 and the amount billed was $125,184.60 2) a check in
the amount of $50,629.93 and the Explanation was mailed by or on
behalf of Sedgwick to Chesterfield 3) the Explanation was in writing
and had Reason Codes to explain the basis for disputing the charged
amounts 4) Chesterfield cashed or deposited the check on or before
June 1, 2016 5) Chesterfield’s Application was filed on or
about August 16, 2017.
Chesterfield
denied that 1) the Explanation and check were mailed together 2) the
Explanation constituted a notice of dispute and 3) Chesterfield
received the Explanation on or before June 1, 2016.
On
September 17, 2019 an ALJ denied Chesterfield’s Application
finding that there were no genuine issues of material fact as to the
notice of dispute or the fact that Chesterfield’s Application
was time barred. The Commission adopted the ALJ’s findings and
Award and concluded that Employer/Insurer is not liable to
Chesterfield for additional reimbursement of medical fees.
Chesterfield appealed.
HOLDING:
In
its first three points, Chesterfield argued that the Commission erred
in dismissing its Medical Fee Dispute because genuine issues of
material fact existed as to whether Explanation is a “notice of
dispute” sent by an agent of the Employer/Insurer and whether
it was received by Chesterfield more than one year before the
Application was filed. The Court noted that the Explanation contained
all the elements required by 8 C.S.R. Section 50-2.030(1)(A), and
therefore the Explanation was a notice of dispute within the meaning
of that rule.
For
its remaining points, Chesterfield argued that the Commission erred
in dismissing the dispute because Section 287.140 and 8 C.S.R.
Section 50-2.030 violated Chesterfield’s constitutional rights
in various ways including the retroactive application of laws,
interference with the right to contract and vagueness. The Court was
not persuaded. The Commission’s decision was affirmed.
Claimant
Not Entitled to Past Medical Expenses Because No Demand Made or
Notice Given to Employer
Justin
Kent v. NHC Healthcare and Treasurer of the State of Missouri as
Custodian of the Second Injury Fund,
Case No. ED108667 (Mo. App. 2021)
FACTS:
The
claimant sustained an injury to his back on December 4, 2008. The
employer sent the claimant out for treatment and he treated
conservatively until he was placed at MMI on March 2, 2009. In March
of 2009 the claimant was terminated. He then began treating on his
own.
The
ALJ found that the employer was liable for $140,030.65 in past
medical expenses and that they would be responsible for future
medical expenses. The ALJ also ruled that the claimant was entitled
to TTD benefits beginning May 12, 2010. The ALJ granted the claimant
PTD based on both medical records introduced at the hearing and the
ALJ’s observations of the claimant’s pain cues during his
testimony. The ALJ held that the Fund was not liable because the
claimant’s disability stemmed solely from the 2009 workplace
injury.
The
employer appealed. The Commission rejected the ALJ’s finding
that the claimant was PTD and instead found that the claimant
sustained 35% PPD referable to the lower back. The Commission
affirmed the ALJs conclusion that the Fund was not liable for PTD.
The Commission rejected the theory of constrictive notice adopted by
the ALJ. Accordingly, the Commission reversed the ALJ’s award
of most medical expenses as well as the award of additional TTD
benefits. The Commission ordered the employer to pay PPD benefits in
the amount of $44,123.80. The claimant appealed.
HOLDING:
The
claimant argued that the facts found by the Commission required a
finding of PTD. The Court pointed out that the Commission found that
while there is evidence that the claimant may be PTD, the evidence
did not persuade them that it is the disability resulting from the
work injury that caused the PTD. The claimant also argued that there
was not sufficient evidence in the record to support an Award of
anything less that PTD. The Court did not agree.
The
claimant also argued that the Commission erred in not awarding past
medical expenses. The Court noted that Section 287.140.1 states that
when the employee picks his own doctor, the employer must pay only
when the employer has notice that the employee needs treatment or a
demand is made on the employer to furnish medical treatment. In this
case, no demand was made by the claimant and there was no specific
evidence in the record that would put the employer on notice that the
claimant needed further medical care.
In
his fourth point, the claimant argued the Commission erred in denying
additional TTD benefits because the evidence showed the claimant was
totally disabled during the time period at issue. The Court noted
that an employee’s self-assessment may be sufficient evidence
to establish TTD but it is not necessarily conclusive, and the
Commission expressed concern as to the claimant’s credibility.
The Court deferred to the credibility determination of the Commission
and held that the denial of additional TTD benefits was supported by
sufficient evidence.
Claimant
Not Entitled to PTD From Fund Because No Documented Pre-existing
Disability Qualified Per Statute
Phelps
v. Treasurer of Missouri as Custodian of Second Injury Fund,
Injury No. 16-025639
FACTS:
On
April 14, 2016 the claimant sustained an injury to his left shoulder.
He was seen by Dr. Mall who performed an arthroscopic rotator cuff
repair and released him at MMI on December 13, 2016. He settled his
claim with the employer/insurer for 30% of the left shoulder. The
claimant’s prior injuries include asthma, several chemical
exposures, two motor vehicle accidents causing injury to the spine,
three injuries to the right knee, two injuries to the lumbar spine,
and injury to the right index finger and three strokes.
Dr.
Volarich, the claimant’s expert, opined that the claimant was
PTD due to a combination of the April 14, 2016 work injury and his
pre-existing medical conditions. Ms. Shay provided a vocational
evaluation and concluded that the claimant was unemployable in any
work that is typically performed in the national labor market.
The
ALJ concluded that the claimant was not entitled to PTD benefits from
the Fund because the claimant has no medically documented disability
that falls under categories 1, 3, or 4 of Section 287.020.3.
Specifically, the Commission concluded that the claimant did not meet
his burden of proof that his chemical exposures and right knee
injuries were compensable since the evidence was insufficient to
support a finding that they were a substantial factor in causing his
medical condition. Also, certain injuries were non-work related while
others equaled less than the 50 weeks of compensation required by the
Section. The ALJ concluded that the claimant had no qualifying
disabilities for Fund liability and therefore his claim against the
Fund was denied. The claimant appealed.
HOLDING:
The Commission affirmed the ALJ’s decision noting that the
claimant failed to demonstrate that a single qualifying disability
combined with disability from his primary injury to result in PTD.
Fund
Not Responsible for PTD Because Claimant PTD Prior to Last Injury
Barnes
v. Karren Brock Construction, Inc. & and Bitco General Insurance
Corporation & Treasurer of Missouri as Custodian of Second Injury
Fund,
Injury No. 16-104170
FACTS:
In
2015 the claimant, developed recurrent bilateral carpal tunnel
syndrome. He did undergo releases with Dr. Brown and was released
from care. He settled his Claim against the employer for 10%
disability to each wrist.
With
respect to the claimant’s preexisting injuries, he sustained a
work-related non-surgical compression disc fracture in his low back
in 1997 and received a settlement of 30% disability referable to the
low back. In 2002 he developed carpal tunnel syndrome and underwent
releases and settled that Claim based on 20% of the left wrist and
18% of the right wrist, a 15% load and two weeks of disfigurement.
The claimant also had multiple medical conditions involving his neck,
shoulders and hands and sleep apnea, polyarthritis, hypertension,
bilateral shoulder bursitis, cervical disc disease with cervicalgia
and chronic post knee replacement pain.
Dr.
Meyers, the claimant’s expert, opined that the claimant was PTD
due to a combination of his preexisting work injuries and his other
non-work-related injuries. Mr. Kaver also opined he was PTD as a
result of his work injury and his preexisting condition. Mr. Dolan
testified on behalf of the Second Injury Fund and opined that the
claimant was unemployable prior to the primary injury and he was
employed only because of accommodations and an excessive use of
opioids.
The
claimant went to a Hearing against the Fund who first argued that the
claimant’s pre-existing work-related carpal tunnel syndrome did
not qualify under Section 287.220.3 because the disability did not
equal a minimum of 50 weeks of PPD compensation as required by the
statute. The ALJ noted that the claimant settled his Workers’
Compensation claim for 66.5 weeks of PPD benefits and therefore the
argument was unsound.
The
Fund then argued that the claimant’s total disability was a
result of not just his work-related injuries, but also multiple
non-work-related medical conditions. The ALJ concluded that these
non-work-related medical conditions did not constitute permanent
partial disabilities as defined by the statute because no physician
certified that they were such.
The
Fund also argued that the claimant was PTD before the 2016 occurrence
and the ALJ agreed and denied the claim. The claimant appealed.
HOLDING:
The Commission affirmed the award and decision of the ALJ denying
compensation.
Claimant
PTD From Last Injury Alone Therefore Not Entitled to Fund Benefits
Southerland
v. Treasurer of Missouri as Custodian of Second Injury Fund,
Injury No. 11-073978
FACTS:
On
September 6, 2011 the claimant was preparing to remove the shifter of
a tractor and when he pulled the final bolt, the full weight of the
shifter came down and threw his left arm and shoulder backward,
causing injury to his shoulder. He underwent surgery and physical
therapy but was not able to return to the level of function needed to
do his job and so he was eventually let go. He settled with the
employer for 15% PPD of the left shoulder. He has not worked since
September 6, 2011 and was approved for social security disability
effective September 2011.
The
claimant has multiple pre-existing injuries and conditions, including
a low back injury from 1979, a right elbow injury from 2002, a left
shoulder injury from 2003, a right-hand carpal tunnel release in 2008
and bilateral neuropathy in the feet, diagnosed in 2010. Dr. Volarich
determined that the claimant was PTD due to a combination of his last
injury and his pre-existing conditions and rated 25% PPD of the left
shoulder from the last injury and 45% PPD of the left shoulder, 20%
PPD of the left foot, 20% PPD of the right foot, 20% PPD of the body
as a whole relatable to the lumbar spine, 15% PPD of the right elbow
and 30% PPD of the right wrist from his preexisting conditions. Ms.
Skahan found that the claimant had a total loss of access to the
competitive labor market due to his pre-existing left shoulder
injury, his last left shoulder injury and his age.
The
ALJ found that the claimant was PTD from the last injury alone and
therefore, the Fund was not liable for permanent total benefits. The
ALJ found that credible evidence showed that the claimant was able to
work a physically demanding job for about 5.5 years before the last
injury. The ALJ also noted that claimant’s preexisting injuries
and disabilities were minor and did not result in significant
disability. The ALJ rejected as excessive and not credible, Dr.
Volarich’s disability ratings for the claimant’s
pre-existing conditions. The ALJ also noted that Dr. Volarich’s
ratings for the left shoulder were inconsistent and not supported by
the medical records. Lastly, the ALJ noted that claimant’s
testimony supported the conclusion that the last injury alone
rendered him physically unable to work. The Claim against the Fund
was therefore denied. The claimant appealed.
HOLDING:
The Commission affirmed the Award and decision of the ALJ.
Claimant
Failed to Meet Burden Entitling Him to Fund Benefits
Marberry
v. Treasurer of Missouri as Custodian of Second Injury Fund,
Injury No. 15-083958
FACTS:
On
September 24, 2015 the claimant sustained an injury when he fell
backwards after reaching for a box and was diagnosed with a strain
and pelvis contusion. He underwent physical therapy and was placed at
MMI on June 28, 2018. He then proceeded to Hearing against the Fund.
With respect to his preexisting conditions the claimant testified
that he suffered three pre-existing disabilities, two to his neck and
one to his right shoulder. In 1999, he sustained an injury to his
neck for which he settled for 20% PPD of the body. In 2002, he was
then involved in a car accident and sustained an injury to his neck
that resulted in a fusion at C4-5 for which he was not given any
permanent restrictions. On December 19, 2014 he was carrying a
50-pound bag up a ladder and he jerked his right shoulder. He
underwent physical therapy but his pain persisted and so he underwent
an MRI in 2016 and was diagnosed with a labral tear, tendinosis and
bursitis of the rotator cuff. He underwent surgery and physical
therapy and was then placed at MMI in May of 2017.
Dr.
Volarich opined that the claimant was PTD as a result of the
work-related injuries of December 19, 2014 and September 24, 2015, in
combination with each other as well as in combination with his
pre-existing medical conditions. Mr. Lalk opined that the claimant
was unable to compete at the unskilled sedentary level because of his
inability to control his symptoms through the work day.
The
ALJ concluded that the evidence did not support a finding that the
claimant was entitled to Fund benefits. A claimant must establish 3
steps to be entitled to Fund benefits. Step 1 requires the claimant
to establish he had a pre-existing disability that equals 50 weeks of
PPD. The ALJ noted that the right shoulder injury did not reach MMI
until nearly two years after the primary injury, and thus it does not
qualify for step one. The 1999 neck injury meanwhile settled for 20%
PPD and the evidence submitted by the claimant from Dr. Volarich
provided only one rating for the neck, which considered both the 1999
and 2002 injuries at 20% PPD. The ALJ noted that this was
insufficient to satisfy the requirements of Step 1. Step 2 required
claimant’s disability to fall into 1 of the 4 categories. The
ALJ concluded that the claimant’s 1999 neck injury fell within
category 2 as an acute work injury and that therefore, the neck
injury satisfied step 2. Step 3 required claimant to prove his single
qualifying pre-existing disability combined with his primary injury
to render him PTD. The ALJ concluded that the evidence submitted by
the claimant failed to show this since the claimant’s experts
based their PTD opinions on consideration of the right shoulder,
which did not yet reach the state of permanency. Based on the strict
construction of language used in the statute, the right shoulder was
disqualified from consideration for Fund benefits. The claimant
therefore failed to meet his burden of proof that he was entitled to
PTD benefits from the Fund. The claimant appealed.
HOLDING:
The Commission affirmed the Award and decision of the ALJ.
Missouri
Claim Denied as Claimant’s Kansas Settlement Entitled to Full
Faith and Credit
Austin
v. AM Mechanical Services & AMCO Insurance Company &
Treasurer of Missouri as Custodian of Second Injury Fund,
Injury No. 11-112011
FACTS:
The
claimant sustained an injury while at work on March 10, 2011 when a
107-pound box fell and struck him on his face and head causing pain
in his neck and wrist and a pop in his shoulder blade area. The
claimant underwent a neck fusion, a TFCC repair on his left wrist and
a carpal tunnel release and several other procedures. The claimant
sustained several injuries prior to March 2011 including to his left
shoulder, back and right knee. He settled his workers’
compensation case in Kansas which provided that he was closing out
all injuries and claims arising out of his March 10, 2011 accident in
all jurisdictions. He then filed a Claim in Missouri seeking workers’
compensation benefits for the March 10, 2011 injury.
The
claimant argued that he was not bound by the Kansas settlement
agreement because it was invalid as he was under duress and did not
understand what jurisdiction meant. The ALJ noted that the claimant
was in essence asking the Division to rule that a Kansas settlement
agreement or contract approved by a Kansas ALJ was invalid at its
inception, though he cited no authority and the Court found no such
authority. The employer argued that the Kansas Settlement Agreement
was entitled to full faith and credit of the US Constitution. The ALJ
noted that if the claimant’s case had hinged on whether
Missouri had to give full faith and credit to a Kansas decision based
on a Kansas substantive law which differed from Missouri’s
substantive law, he would not have been bound by the Kansas decision.
However, the claimant’s case did not involve any differences in
the substantive laws of the two states, but he merely wanted the
Kansas settlement declared invalid. The ALJ concluded that full faith
and credit must therefore be given to the language in the Kansas
settlement agreement and therefore the claimant’s Claim in
Missouri was denied. The claimant appealed.
