Case Law Updates Simon Anderson Law P.C.

Expert Must Consider Only Qualifying Pre-Existing PPD

Emerson v. Prestressed Casting Co., & Second Injury Fund, Injury No. 18-08559

FACTS: The claimant sustained three prior injuries to his low back. His first low back injury was on May 8, 2012. The MRI showed a small central zone protrusion at L3-4, a central and pericentral zone disc protrusion and annular fissure at L4-5, with mild lateral recess stenosis. The claimant was discharged with a 0% rating and return to full work without restrictions.

His second prior injury was on April 13, 2013. Dr. Crabtree performed a hemilaminectomy and microdiscectomy at L5-S1. The claimant subsequently returned to full duty work without restrictions.

The claimant’s third injury was on December 29, 2014. Dr. Chabot performed surgery which included partial facetectomies and foraminotomies at L4-5 and L5-S1, fusion at L5-S1, and insertion of pedicel screws and rods at L5-S1. After surgery, the claimant continued follow-up care with Dr. Chabot for continuing leg pain.

After reaching MMI following each of the three prior low back injuries, the claimant returned to work at full duty. Although Dr. Woodward provided job restrictions for 35-pound lifting, there is no evidence that the restrictions were followed.

On August 29, 2018, the claimant sustained his primary injury to his neck and low back. A lumbar spine MRI showed L4-5 lateral recess stenosis and facet joint arthropathy that had progressed since claimant’s post fusion MRI. The claimant then underwent a cervical fusion at C5-6 with Dr. Crabtree. Since the claimant’s cervical surgery in 2019, he was using a cane daily, his right leg had given out, he slept poorly, was dependent on pain medication and had significant limitations regarding his activities.

In his Award following the Hearing, the Judge found the employer/insurer solely liable for PTD because the employee worked without limitations before the August 29, 2018 primary injury, stating that “although Mr. Emerson suffered impairments before his last accident, he did not suffer significant consequences from his impairment, i.e. [prior] disabilities until after the last accident.”

The employer/insurer filed a timely Application for Review alleging that the Judge erred in making a distinction between impairment and disability in disregard to the prior settlement and erroneously interpretating 287.220 regarding the liability of the Fund.

HOLDING: The Commission analyzed and applied Section 287.220.3 (2) regarding the liability of the Second Injury Fund for permanent total disability claims. In summary, the statute states that the Fund is liable when an employee sustains a subsequent compensable work-related injury when combined with a preexisting disability equaling a minimum of 50 weeks of permanent partial disability results in permanent total disability.

In this case, only one medical expert, Dr. Volarich, addressed the effect of the claimant’s preexisting disabilities in combination with disabilities attributable to his primary injury. Dr. Crockett rated the claimant’s PPD as 20% of the body but did not distinguish preexisting disabilities from any disability relating to the primary injury. Dr. Volarich opined that the claimant had 60% preexisting PPD of the body rated at the lumbar spine.

The Commission concurred with Dr. Volarich’s opinion that qualifying pre-existing disability attributable to the claimant’s 2013 and 2014 compensable work injuries combined with disability from the claimant’s primary injury to render him permanently and totally disabled. Therefore, the Fund was liable for PTD benefits and the employer was liable for 35% of the body for the primary injury.

Employer Liable for PTD From Primary Injury Alone Despite Conservative Treatment

Balliu v. Konika Minolta Business Solution USA, Inc. & Second Injury Fund, Injury No. 15-085465

FACTS: The employee had an injury on May 6, 2015 and settled against the employer for 25% of the body for a strain on the right groin which was treated non-surgically. The employee went to a hearing against the Fund.

The claimant sustained two prior injuries. In 1999, he suffered a bilateral hernia which was surgically repaired. The claimant testified this happened in a work-related event but did not pursue Worker’s Compensation Benefits. Thereafter, he returned to his same job working full duty with no formal restrictions or accommodations although the claimant testified to some self-accommodating behavior to avoid further injury. Subsequently, in 2004, he sustained a right sided inguinal hernia that was not work related.

In his Award, the Judge stated that the burden of proving entitlement to compensation is on the claimant. In this case, the claimant was alleging that he was PTD due to a combination of injuries. To establish Fund liability, the claimant must demonstrate that the primary injury combined with the prior qualifying injury renders the claimant unemployable in the open labor market. The Judge concluded that the prior injuries did not qualify as preexisting disabilities. When the claimant returned to work after the 1999 injury, he returned to work full time with no restrictions. Furthermore, prior to the primary 2015 work injury, the claimant testified that he engaged in outdoor hobbies including bicycling 8 to 10 miles at a time twice a month, as well as hiking and other activities. The Judge found that the claimant did not meet his burden to establish liability of the Fund for PTD.

HOLDING: The Commission affirmed the Judge’s Award and decision but corrected his analysis with a supplemental opinion. The Commission noted that for there to be Fund liability, the first analysis is to determine the degree of disability from the last work-related injury. If that last work-related injury, independent and alone, renders the claimant PTD, neither the number of preexisting conditions nor their degree of disability is relevant and there is no Fund liability.

For that reason, the Commission found that the claimant failed to meet his burden of proof to establish liability of the Fund in this matter. Specifically, the claimant’s last accident of May 6, 2015, and the limitations and restrictions, including claimant’s need to recline multiple times per day up to 7 hours per day as a result of the last accident alone, and in isolation, are the most significant factors which rendered the claimant PTD as a result of the primary injury.

“Right to Control” Establishes Employment

Reyes v. Indios Painting, Injury No. 20-100084

FACTS: At the time of the Hearing, the sole issue to be resolved was whether there was an employer/employee relationship between the claimant and Indios Painting.

The claimant alleged that she worked as a painter for Indios Painting and was hired approximately three months prior to the accident date of May 11, 2020. There is little dispute that on May 11, 2020, the claimant was involved in a serious motor vehicle accident. Mr. Pacheco testified deposition that he previously owned and operated Indios Painting which was operated out of his home and that all employees of Indios Painting were not engaged in the actual business of painting with the exception of occasional touchup work. Also, he was not the owner of the van in the motor vehicle accident on the day in question. However, in the testimony presented, including that of Mr. Pacheco and the claimant, it describes oral contracts entered into with Indios Painting through Mr. Pacheco with various subcontractors including Wilder Landaverry.

The facts also showed that Wilder, as a subcontractor of Indios Painting, picked up the claimant and drove her and others to the job site and returned them at the end of the day. This exercise of the control and the nature of going and coming to jobs and being in a vehicle arguably owned and controlled by Indios Painting at the time of the accident satisfied the right to control test.

HOLDING: The Judge concluded that the claimant was an employee because she was employed by a subcontractor of Indios Painting and presumably the subcontractor possessed no worker’s compensation insurance. By law the statutory employer would step into the shoes for an uninsured subcontractor and for that reason, the Judge found that Indios Painting was the statutory employer of the claimant.

The statute regarding statutory employment states: “Any person who has worked on under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employee and should be liable under this chapter to such contractor, his subcontractor, and their employees when injured or killed on or about the premises of the employer while doing work which is in the usual course of business.”

The evidence showed that Indios Painting hired subcontractors, directed and controlled where they worked, and provided the materials to allow them to perform that work. Also, the accident occurred in an Indios Painting van filled with painting supplies and equipment in which the claimant was picked up by Wilder and transported to the job. Therefore, the Judge found that Indios Painting was the statutory employer of Wilder Landaverry.

The employer/insurer appealed, and the Commission affirmed the Judge’s Award.

Must Consider “Usual Wages From Similar Services” For Volunteer Workers

Hayes v. City of El Dorado Springs, Case No. SD37841 (Mo.App.2024)

FACTS: The Commission awarded Susan Hayes (Wife) $40.00 per week in benefits for the death of her husband, Russell Hayes (Husband) who died while working as a volunteer fire fighter for the City of El Dorado Springs, Missouri. Wife appealed the decision.

Husband served as a volunteer firefighter and EMT for several decades. In 2018, he was fatally injured. Employer admitted that Husband and Wife were entitled to benefits. The only dispute was the amount of Wife’s weekly death benefit.

The only witnesses to testify at the Hearing were Wife and her two expert witnesses, a Lieutenant firefighter and Mr. Eldred, a vocational expert. According to Wife, Husband was on call 24 hours a day as a volunteer fire fighter for employer. Except for working nights as an in home aid, Husband would stop what he was doing to respond to calls. If the calls required Husband to act in some fashion, he was paid $10 per response inside the city limits and $20 per response outside the city limits. But if no action was required, his pay was reduced from $10 to $4 and from $20 to $6.

Mr. Eldred’s report included wage data for firefighters generally, including the mean annual salaries for full time firefighters nationally, within Missouri and within southwest Missouri along with a general firefighter job description as well as the employer’s volunteer firefighter job description.

The employer presented exhibits including a wage statement for Husband, Husband’s personnel file, the employer’s job description for volunteer fire fighters, Husband’s historical pay information, and a wage statement for the employer’s fire chief.

At Hearing, the ALJ found that while Husband was paid for per call responded to, the nature of responding to emergency calls was unpredictable. Also, the ALJ dismissed the testimony of Mr. Eldred as that testimony asked for an assumption that the services of a full-time career firefighter and by a rural volunteer firefighter were similar. Therefore, the ALJ concluded that there was no wage evidence that was introduced. Therefore, since Husband's compensation never exceeded $40 per week the ALJ concluded that the statutory minimum of $40 per week was appropriate. The Wife appealed and the Commission affirmed.

HOLDING: On appeal, Wife contends the Commission misapplied the law in determining Husband’s weekly wage. The Court reversed the Commission’s Award and remanded the case for further proceedings consistent with their opinion.

The Court stated that when the Commission found that Wife presented evidence of the “usual wage” of firefighters, they did not compare the services provided by such firefighters to services provided by Husband as a volunteer firefighter to determine whether those services are “similar” as required by Section 287.250.1 (6) which states that if the hourly wage has not been fixed or cannot be ascertained or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer.

The Court stated it was clear that the Commission did not consider the testimony of Wife’s expert testimony that as a general rule most firefighters have similar job expectations or that the job description of a firefighter and a volunteer firefighter overlapped.

The Court concluded that the plain language of Section 287.250.1 (6) clearly allows for a wage to be calculated for an employee who earned very little or even “no wage” by utilizing the “usual wage” paid to others. The Commission’s Award was revered and remanded for the Commission to determine whether a wage for the purpose of calculating compensation in the form of the “usual wage for similar services” can be determined under Section 287.250.1 (6).