April 2016 – June 2016
Top
Injury Sustained by
Stepping Off Steep Edge of Sidewalk While Leaving Work Found Compensable
Lincoln University vs.
Narens, Case No. WD79003 (Mo.
App. 2016)
FACTS: At the end of the claimant’s work day, she
was walking to her car down a crowded sidewalk on the employer’s campus when
she stepped to the right to avoid people walking in the opposite direction, at
which time her right foot landed on the steep edge of the sidewalk and
turned. The claimant fell and broke her
ankle. A photograph of the sidewalk
where the claimant fell shows that the sidewalk edge is higher than the ground
adjacent to it.
At a hearing, an ALJ found the injury
compensable. On appeal, the Commission
affirmed finding that the claimant was in the course and scope of her
employment because, although she was leaving work, the extension of premises
doctrine applies because she was on premises owned an controlled by the
employer. She also would not have been
equally exposed to the risk of walking on a crowded sidewalk with a steep edge
on one side in her normal non-employment life.
HOLDING: The Appellate Court affirmed the Commission,
finding that the risk source of the claimant’s injury was stepping off the
steep edge of this particular sidewalk on campus, not simply walking. Therefore, she was not equally exposed to the
risk of injury in her normal non-employment life. Also, the claimant did not have to prove that
she was engaged in a work related activity when the injury occurred, because
the sidewalk where she was injured was owned and controlled by the employer and
the extension of premises doctrine applies.
Top
Despite Previous Instances of Horseplay, Injuries
Sustained after Claimant Intentionally Ignited a Flammable Substance Not
Compensable because Risk did not Arise out of the Course and Scope of
Employment
Hedrick vs. Big O Tires, Injury No. 11-058168
Simon Law Group, P.C.
The claimant worked as a general mechanic at Big O
Tires. Employees sometimes used open
flames as part of their job duties, but only when safety methods were utilized
to make sure that no flammable materials were nearby. On his date of injury, the claimant intentionally
lit a can of glue on fire while a coworker was holding it, which caused an
explosion and serious injuries to both the coworker and himself. He pointed to several previous instances of
horseplay at work, including greasing a doorknob or snapping a rag. He argued that lighting the can on fire was
also horseplay, and since horseplay was prevalent at his workplace, the risk of
injury arose out of and in the course and scope of employment.
At a Hearing, the ALJ denied his Claim, finding that
the risk did not arise out of and in the course and scope of his employment,
because lighting the can on fire was an intentional dangerous act that had
nothing to do with his job duties, unlike the prior instances of horseplay,
which were not life threatening. On
appeal, the Commission affirmed, holding that the mere presence of dangerous
materials on the job site combined with the fact that coworkers occasionally
engaged in mild horseplay was insufficient to show that these injuries arose
out of and in the course and scope of employment.
Top
Claimant Not Entitled to Permanency or Future Medical
because He Failed to Prove that His Continuing Complaints in 2015 were Causally
Related to His November 2011 Injury
Jack vs. Triumph Foods, LLC, Injury No. 11-107791
The claimant worked for the employer trimming fat from
meat using a wizard knife with his right hand.
He began having pain, swelling, and triggering in his right hand in
February 2011 and was terminated by the employer in November 2011. He was unemployed until 2014, when he began
working for a subsequent employer at a job that required repetitive use of his
bilateral upper extremities, and he continued to work there at the time of the
Hearing.
The claimant treated on his own with Dr. Prostic in
March 2012, at which time the doctor diagnosed cubital tunnel and stenosing
tenosynovitis of the long, ring, and little fingers of the right upper
extremity. He returned to Dr. Prostic 2
½ years later in October 2014, at which time the doctor noted he had no
physical evidence of stenosing tenosynovitis but instead appeared to have
bilateral carpal tunnel syndrome, and assessed 10% PPD of the bilateral upper
extremities. Dr. Prostic did not
diagnose cubital tunnel syndrome at the 2014 visit.
The claimant was sent by the employer to Dr. Wilkinson
in August 2015, at which time the doctor opined that his bilateral upper
extremity pain was subjective and found there was no objective evidence of
carpal tunnel, cubital tunnel, or stenosing tenosynovitis. The doctor assessed 0% PPD.
At a Hearing, the ALJ found that the claimant did
sustain a work related injury to his right hand in 2011. However, the ALJ found that he failed to
prove that his current condition was causally related to his 2011 work
injury. The ALJ noted that the claimant
had been working for a subsequent employer doing repetitive work with his
bilateral upper extremities for over a year without accommodations and without
receiving treatment for the same. The
ALJ found that he was at MMI for his November 2011 injury and had no disability
as a result. Therefore, the employer was
not responsible for any additional medical treatment. The claimant appealed, and the Commission
affirmed the ALJ’s decision.
Top
Employer Responsible for Medical Treatment, Even
Though Claimant had a Pre-Existing Condition, Because Claimant was Asymptomatic
Prior to Her Date of Injury
Stieferman vs. Optima Graphics, Ltd., Injury Nos. 14-025821 & 14-035591
The claimant worked for the employer as a
seamstress. On April 7, 2014, she tripped
on a roll of fabric and fell, injuring her right shoulder. She underwent physical therapy and reported
75% improvement in her pain. Two weeks
later on April 21, 2014, she tripped again on the same roll of fabric and
re-injured her right shoulder.
She was treated by Dr. Hobbs, who diagnosed a
retracted full thickness tear of the supra and infraspinatus tendon with
retraction to the glenohumeral joint, atrophy, and degeneration with mild
glenohumeral osteoarthritis. Dr. Hobbs
opined that her tear preexisted both of her work injuries, since retraction
occurs over the course of months or years, and opined that her two work
injuries merely exacerbated an underlying condition and were not the prevailing
cause of her current right shoulder condition.
He did not recommend any treatment for the work injuries.
Dr. Emanuel testified on behalf of the claimant and
diagnosed a complete tear of the rotator cuff with retraction, joint arthritis,
subacromial bursitis, and bicipital tendonitis.
The doctor opined that while the claimant most likely had an asymptomatic
full thickness rotator cuff tear prior to her April 7, 2014 fall, her April 7,
2015 was the prevailing factor that caused a complete rotator cuff tear. The doctor also concluded that her April 21,
2015 fall aggravated her right shoulder but did not tear it. He recommended a second MRI followed by
surgical intervention.
At a Hearing, the ALJ found that both expert witnesses
agreed that the claimant had a pre-existing right rotator cuff tear. However, the ALJ found Dr. Emanuel’s
causation opinion more persuasive than that of Dr. Hobbs and held that the
April 7, 2015 fall was the prevailing factor causing the claimant’s current
condition. The ALJ noted that she had no
pain complaints and did not require treatment prior to April 7, 2015. Therefore, the ALJ found that the employer
was responsible for medical treatment with respect to the April 7, 2014 date of
injury.
Top
Claimant Awarded PPD and Future Medical for Work
Related Mental Injury Without Showing That Her Stress Was Extraordinary and
Unusual When Compared to Similarly Situated Employees
Mantia vs. Missouri Department of Transportation and
Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED103016 (Mo. App. 2016)
FACTS: The
claimant worked for MoDOT and assisted at motor vehicle accident scenes. During her career she was at the scene of
multiple serious accidents involving catastrophic injury, dismemberment, and
death. She began to suffer significant
emotional and psychological symptoms and filed a Claim alleging psychological injury
as a result of an occupational disease.
MoDOT’s expert Dr. Stillings opined that the claimant
had work related depressive disorder that resulted in 2.5% PPD to the body. The
claimant’s expert Dr. Jovick opined that she had post-traumatic stress disorder
and major depressive disorder that resulted in 95% PPD to the body. Both agreed that she sustained PPD to the
body referable to psychological injury as a result of her job duties.
At a Hearing, the ALJ denied the Claim because she
failed to prove that she suffered extraordinary and unusual work related stress
when compared to similarly situated employees.
The Commission reversed, holding that the 2005 amendments to the
Worker’s Compensation Statute abrogated the requirement that an employee
compare her stress with that experienced by similarly situated employees. The Commission awarded 50% PPD of the body
referable to her mental injuries and future medical. MoDOT appealed to the Missouri Court of
Appeals.
HOLDING: The
Court held that the requirement that an employee compare her work related
stress to that of similarly situated employees was a judicially created
doctrine which should not be applied under strict construction. Strictly construed, an employee need only
show that mental injury resulted from stress that was work related and extraordinary
and unusual as measured by objective standards and actual events. The Court
held that the Commission’s decision was supported by the claimant’s testimony
and both medical experts, and it affirmed the Award.
Top
Claimant PTD from Last Injury Alone after She Fell and
Injured Her Left Upper Extremity
Smith vs. Premium Transportation Staffing, Inc. and
Wil TransTrucking Company,
Injury No. 10-019420
The 54 year old claimant was employed by Premium
Transportation Staffing and assigned to Wil Trans Transportation as an over the
road truck driver. Premium’s handbook
stated that it was an employer, did not function as an employment agency, and
assigns its employees to other companies.
Therefore, the ALJ found that the employer was Premium.
On March 17, 2010, while working in Denver, Colorado,
the claimant attempted to pull a fifth wheel pin, at which time the pin became
loose and the claimant fell backwards, injuring her left hand, wrist, shoulder,
and tail bone. Premium arranged for the
claimant to be transported back to Springfield, Missouri. Once there, the claimant wished to return to
her home in Alabama and seek treatment there, which she did at an expense of
$189.22.
Dr. Scott, diagnosed a comminuted distal radius and
ulnar fracture and traumatic arthritis of the left wrist and performed a left
carpal tunnel release on June 21, 2012.
Dr. Hillyer, performed tendon tenolysis at the first, second, and third
extensor compartments on October 26, 2012.
She was placed at MMI on April 5, 2013 but continued to have complaints.
Dr. Parmet performed an IME in 2014 on behalf of the
claimant and diagnosed post-traumatic left carpal tunnel syndrome which
developed into left wrist extensor tenosynovitis and arthritis as well as a
frozen left shoulder related to her primary accident due to prolonged
immobilization. He assessed 30% PPD to
the shoulder and 75% PPD to the left forearm and opined the claimant was PTD
due to her last injury alone.
Mr. Eldred testified on behalf of the claimant and
opined that she was unemployable due to her advanced age, low academic testing,
medical condition, and limited work history in mainly truck driving. Premium’s vocational expert did not agree
that she was unemployable.
At a Hearing, the ALJ found the testimony of the claimant
and her experts credible and persuasive and found her to be PTD based on her
last injury alone and that Premium was liable for PTD benefits. With respect to mileage reimbursement for the
claimant’s trip from Springfield, Missouri to Alabama, the Judge found that
Premium was not liable because Alabama is more than 250 miles from Springfield,
Missouri. Premium appealed this
decision, which was affirmed by the Commission.
Top
Claim against Fund was Untimely because Not Filed
within Two Years of Date of Injury or One Year of Claim against
Employer/Insurer
Reynolds vs. Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
11-080366
The claimant was a staff support employee at a
hospital and sustained an injury on October 9, 2011 when a patient grabbed him
in the groin area and pulled/twisted forcibly.
He filed a Claim for Compensation on October 27, 2011 and settled with
the employer/insurer on August 2, 2013 for 10% of the body referable to the
groin. He dismissed his Claim against
the Fund on August 16, 2013 before refiling his Claim against the Fund on July
30, 2014.
At a Hearing before the ALJ, the Fund argued that his
Claim against them was barred under Statute, because it was dismissed and not
re-filed within two years of the date of injury or within one year of the date
a Claim was filed against the employer.
The ALJ held that the Claim was not barred and awarded PPD benefits from
the Fund.
The Fund appealed to the Commission, arguing that the
Court of Appeals decision in Couch v. Treasurer of Missouri as Custodian of
the Second Injury Fund required the Commission to reverse the ALJ’s
decision. In Couch the Court of
Appeals found that a Stipulation for Compromise Settlement between an employer
and claimant does not constitute a Claim that pushed back the Statute of
Limitations for a Claim to be filed against the Fund. The Commission agreed with the Fund and
reversed the ALJ’s decision, finding that the claimant’s second Claim against
the Fund was barred because it was not timely filed within two years of his
date of injury in October 2011 or within one year of filing a Claim against the
employer/insurer in October 2011.
Top
Claimant’s Pre-Existing Hearing Loss Constituted
Pre-Existing Disability to the Body as a Whole for the Purpose of Triggering
Fund Liability
Treasurer of the State of Missouri Custodian of the
Second Injury Fund vs. Horton,
Case No. WD79261 (Mo. App. 2016)
FACTS: The
claimant was employed by a hospital when he was assaulted by a patient and
knocked unconscious, after which he suffered from headaches, sensitivity in his
left eye, and shoulder, neck, and head pain.
He settled the Claim against his employer for 17.5% of the body
referable to the neck. He had
pre-existing hearing loss in both ears, which one doctor assessed to be 34.75%
hearing loss and another assessed to be 75% hearing loss. He filed a Claim for benefits from the Fund.
At a Hearing, the ALJ found that the claimant had
15.5% pre-existing PPD to the body as a result of his hearing loss and awarded benefits
from the Fund, which appealed. The
Commission affirmed.
The Fund then appealed to the Missouri Court of
Appeals and argued that the claimant did not qualify for Fund benefits because
his pre-existing disability, hearing loss, does not meet the threshold to
receive those benefits, because it is not a disability to a major extremity or
the body as a whole.
HOLDING: The
Court found that hearing loss does constitute an injury to the body as a
whole. Using strict construction, it
interpreted §287.220.1 to mean that any pre-existing partial disability must
fall into one of the two above categories, either disability to a major
extremity or the body as a whole. Since
hearing loss is not an injury to a major extremity, it must be considered an
injury to the body as a whole. To hold
otherwise would imply that all injuries except those to the eyes and ears
trigger Fund liability. The Court held
that the claimant’s pre-existing hearing loss constituted an obstacle to
employment and met the threshold to trigger Fund liability. Therefore, the decision was affirmed.
April 2016 – June 2016
Injury Sustained by
Stepping Off Steep Edge of Sidewalk While Leaving Work Found Compensable
Lincoln University vs.
Narens, Case No. WD79003 (Mo.
App. 2016)
FACTS: At the end of the claimant’s work day, she
was walking to her car down a crowded sidewalk on the employer’s campus when
she stepped to the right to avoid people walking in the opposite direction, at
which time her right foot landed on the steep edge of the sidewalk and
turned. The claimant fell and broke her
ankle. A photograph of the sidewalk
where the claimant fell shows that the sidewalk edge is higher than the ground
adjacent to it.
At a hearing, an ALJ found the injury
compensable. On appeal, the Commission
affirmed finding that the claimant was in the course and scope of her
employment because, although she was leaving work, the extension of premises
doctrine applies because she was on premises owned an controlled by the
employer. She also would not have been
equally exposed to the risk of walking on a crowded sidewalk with a steep edge
on one side in her normal non-employment life.
HOLDING: The Appellate Court affirmed the Commission,
finding that the risk source of the claimant’s injury was stepping off the
steep edge of this particular sidewalk on campus, not simply walking. Therefore, she was not equally exposed to the
risk of injury in her normal non-employment life. Also, the claimant did not have to prove that
she was engaged in a work related activity when the injury occurred, because
the sidewalk where she was injured was owned and controlled by the employer and
the extension of premises doctrine applies.
Despite Previous Instances of Horseplay, Injuries
Sustained after Claimant Intentionally Ignited a Flammable Substance Not
Compensable because Risk did not Arise out of the Course and Scope of
Employment
Hedrick vs. Big O Tires, Injury No. 11-058168
Simon Law Group, P.C.
The claimant worked as a general mechanic at Big O
Tires. Employees sometimes used open
flames as part of their job duties, but only when safety methods were utilized
to make sure that no flammable materials were nearby. On his date of injury, the claimant intentionally
lit a can of glue on fire while a coworker was holding it, which caused an
explosion and serious injuries to both the coworker and himself. He pointed to several previous instances of
horseplay at work, including greasing a doorknob or snapping a rag. He argued that lighting the can on fire was
also horseplay, and since horseplay was prevalent at his workplace, the risk of
injury arose out of and in the course and scope of employment.
At a Hearing, the ALJ denied his Claim, finding that
the risk did not arise out of and in the course and scope of his employment,
because lighting the can on fire was an intentional dangerous act that had
nothing to do with his job duties, unlike the prior instances of horseplay,
which were not life threatening. On
appeal, the Commission affirmed, holding that the mere presence of dangerous
materials on the job site combined with the fact that coworkers occasionally
engaged in mild horseplay was insufficient to show that these injuries arose
out of and in the course and scope of employment.
Claimant Not Entitled to Permanency or Future Medical
because He Failed to Prove that His Continuing Complaints in 2015 were Causally
Related to His November 2011 Injury
Jack vs. Triumph Foods, LLC, Injury No. 11-107791
The claimant worked for the employer trimming fat from
meat using a wizard knife with his right hand.
He began having pain, swelling, and triggering in his right hand in
February 2011 and was terminated by the employer in November 2011. He was unemployed until 2014, when he began
working for a subsequent employer at a job that required repetitive use of his
bilateral upper extremities, and he continued to work there at the time of the
Hearing.
The claimant treated on his own with Dr. Prostic in
March 2012, at which time the doctor diagnosed cubital tunnel and stenosing
tenosynovitis of the long, ring, and little fingers of the right upper
extremity. He returned to Dr. Prostic 2
½ years later in October 2014, at which time the doctor noted he had no
physical evidence of stenosing tenosynovitis but instead appeared to have
bilateral carpal tunnel syndrome, and assessed 10% PPD of the bilateral upper
extremities. Dr. Prostic did not
diagnose cubital tunnel syndrome at the 2014 visit.
The claimant was sent by the employer to Dr. Wilkinson
in August 2015, at which time the doctor opined that his bilateral upper
extremity pain was subjective and found there was no objective evidence of
carpal tunnel, cubital tunnel, or stenosing tenosynovitis. The doctor assessed 0% PPD.
At a Hearing, the ALJ found that the claimant did
sustain a work related injury to his right hand in 2011. However, the ALJ found that he failed to
prove that his current condition was causally related to his 2011 work
injury. The ALJ noted that the claimant
had been working for a subsequent employer doing repetitive work with his
bilateral upper extremities for over a year without accommodations and without
receiving treatment for the same. The
ALJ found that he was at MMI for his November 2011 injury and had no disability
as a result. Therefore, the employer was
not responsible for any additional medical treatment. The claimant appealed, and the Commission
affirmed the ALJ’s decision.
Employer Responsible for Medical Treatment, Even
Though Claimant had a Pre-Existing Condition, Because Claimant was Asymptomatic
Prior to Her Date of Injury
Stieferman vs. Optima Graphics, Ltd., Injury Nos. 14-025821 & 14-035591
The claimant worked for the employer as a
seamstress. On April 7, 2014, she tripped
on a roll of fabric and fell, injuring her right shoulder. She underwent physical therapy and reported
75% improvement in her pain. Two weeks
later on April 21, 2014, she tripped again on the same roll of fabric and
re-injured her right shoulder.
She was treated by Dr. Hobbs, who diagnosed a
retracted full thickness tear of the supra and infraspinatus tendon with
retraction to the glenohumeral joint, atrophy, and degeneration with mild
glenohumeral osteoarthritis. Dr. Hobbs
opined that her tear preexisted both of her work injuries, since retraction
occurs over the course of months or years, and opined that her two work
injuries merely exacerbated an underlying condition and were not the prevailing
cause of her current right shoulder condition.
He did not recommend any treatment for the work injuries.
Dr. Emanuel testified on behalf of the claimant and
diagnosed a complete tear of the rotator cuff with retraction, joint arthritis,
subacromial bursitis, and bicipital tendonitis.
The doctor opined that while the claimant most likely had an asymptomatic
full thickness rotator cuff tear prior to her April 7, 2014 fall, her April 7,
2015 was the prevailing factor that caused a complete rotator cuff tear. The doctor also concluded that her April 21,
2015 fall aggravated her right shoulder but did not tear it. He recommended a second MRI followed by
surgical intervention.
At a Hearing, the ALJ found that both expert witnesses
agreed that the claimant had a pre-existing right rotator cuff tear. However, the ALJ found Dr. Emanuel’s
causation opinion more persuasive than that of Dr. Hobbs and held that the
April 7, 2015 fall was the prevailing factor causing the claimant’s current
condition. The ALJ noted that she had no
pain complaints and did not require treatment prior to April 7, 2015. Therefore, the ALJ found that the employer
was responsible for medical treatment with respect to the April 7, 2014 date of
injury.
Claimant Awarded PPD and Future Medical for Work
Related Mental Injury Without Showing That Her Stress Was Extraordinary and
Unusual When Compared to Similarly Situated Employees
Mantia vs. Missouri Department of Transportation and
Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED103016 (Mo. App. 2016)
FACTS: The
claimant worked for MoDOT and assisted at motor vehicle accident scenes. During her career she was at the scene of
multiple serious accidents involving catastrophic injury, dismemberment, and
death. She began to suffer significant
emotional and psychological symptoms and filed a Claim alleging psychological injury
as a result of an occupational disease.
MoDOT’s expert Dr. Stillings opined that the claimant
had work related depressive disorder that resulted in 2.5% PPD to the body. The
claimant’s expert Dr. Jovick opined that she had post-traumatic stress disorder
and major depressive disorder that resulted in 95% PPD to the body. Both agreed that she sustained PPD to the
body referable to psychological injury as a result of her job duties.
At a Hearing, the ALJ denied the Claim because she
failed to prove that she suffered extraordinary and unusual work related stress
when compared to similarly situated employees.
The Commission reversed, holding that the 2005 amendments to the
Worker’s Compensation Statute abrogated the requirement that an employee
compare her stress with that experienced by similarly situated employees. The Commission awarded 50% PPD of the body
referable to her mental injuries and future medical. MoDOT appealed to the Missouri Court of
Appeals.
HOLDING: The
Court held that the requirement that an employee compare her work related
stress to that of similarly situated employees was a judicially created
doctrine which should not be applied under strict construction. Strictly construed, an employee need only
show that mental injury resulted from stress that was work related and extraordinary
and unusual as measured by objective standards and actual events. The Court
held that the Commission’s decision was supported by the claimant’s testimony
and both medical experts, and it affirmed the Award.
Claimant PTD from Last Injury Alone after She Fell and
Injured Her Left Upper Extremity
Smith vs. Premium Transportation Staffing, Inc. and
Wil TransTrucking Company,
Injury No. 10-019420
The 54 year old claimant was employed by Premium
Transportation Staffing and assigned to Wil Trans Transportation as an over the
road truck driver. Premium’s handbook
stated that it was an employer, did not function as an employment agency, and
assigns its employees to other companies.
Therefore, the ALJ found that the employer was Premium.
On March 17, 2010, while working in Denver, Colorado,
the claimant attempted to pull a fifth wheel pin, at which time the pin became
loose and the claimant fell backwards, injuring her left hand, wrist, shoulder,
and tail bone. Premium arranged for the
claimant to be transported back to Springfield, Missouri. Once there, the claimant wished to return to
her home in Alabama and seek treatment there, which she did at an expense of
$189.22.
Dr. Scott, diagnosed a comminuted distal radius and
ulnar fracture and traumatic arthritis of the left wrist and performed a left
carpal tunnel release on June 21, 2012.
Dr. Hillyer, performed tendon tenolysis at the first, second, and third
extensor compartments on October 26, 2012.
She was placed at MMI on April 5, 2013 but continued to have complaints.
Dr. Parmet performed an IME in 2014 on behalf of the
claimant and diagnosed post-traumatic left carpal tunnel syndrome which
developed into left wrist extensor tenosynovitis and arthritis as well as a
frozen left shoulder related to her primary accident due to prolonged
immobilization. He assessed 30% PPD to
the shoulder and 75% PPD to the left forearm and opined the claimant was PTD
due to her last injury alone.
Mr. Eldred testified on behalf of the claimant and
opined that she was unemployable due to her advanced age, low academic testing,
medical condition, and limited work history in mainly truck driving. Premium’s vocational expert did not agree
that she was unemployable.
At a Hearing, the ALJ found the testimony of the claimant
and her experts credible and persuasive and found her to be PTD based on her
last injury alone and that Premium was liable for PTD benefits. With respect to mileage reimbursement for the
claimant’s trip from Springfield, Missouri to Alabama, the Judge found that
Premium was not liable because Alabama is more than 250 miles from Springfield,
Missouri. Premium appealed this
decision, which was affirmed by the Commission.
Claim against Fund was Untimely because Not Filed
within Two Years of Date of Injury or One Year of Claim against
Employer/Insurer
Reynolds vs. Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
11-080366
The claimant was a staff support employee at a
hospital and sustained an injury on October 9, 2011 when a patient grabbed him
in the groin area and pulled/twisted forcibly.
He filed a Claim for Compensation on October 27, 2011 and settled with
the employer/insurer on August 2, 2013 for 10% of the body referable to the
groin. He dismissed his Claim against
the Fund on August 16, 2013 before refiling his Claim against the Fund on July
30, 2014.
At a Hearing before the ALJ, the Fund argued that his
Claim against them was barred under Statute, because it was dismissed and not
re-filed within two years of the date of injury or within one year of the date
a Claim was filed against the employer.
The ALJ held that the Claim was not barred and awarded PPD benefits from
the Fund.
The Fund appealed to the Commission, arguing that the
Court of Appeals decision in Couch v. Treasurer of Missouri as Custodian of
the Second Injury Fund required the Commission to reverse the ALJ’s
decision. In Couch the Court of
Appeals found that a Stipulation for Compromise Settlement between an employer
and claimant does not constitute a Claim that pushed back the Statute of
Limitations for a Claim to be filed against the Fund. The Commission agreed with the Fund and
reversed the ALJ’s decision, finding that the claimant’s second Claim against
the Fund was barred because it was not timely filed within two years of his
date of injury in October 2011 or within one year of filing a Claim against the
employer/insurer in October 2011.
Claimant’s Pre-Existing Hearing Loss Constituted
Pre-Existing Disability to the Body as a Whole for the Purpose of Triggering
Fund Liability
Treasurer of the State of Missouri Custodian of the
Second Injury Fund vs. Horton,
Case No. WD79261 (Mo. App. 2016)
FACTS: The
claimant was employed by a hospital when he was assaulted by a patient and
knocked unconscious, after which he suffered from headaches, sensitivity in his
left eye, and shoulder, neck, and head pain.
He settled the Claim against his employer for 17.5% of the body
referable to the neck. He had
pre-existing hearing loss in both ears, which one doctor assessed to be 34.75%
hearing loss and another assessed to be 75% hearing loss. He filed a Claim for benefits from the Fund.
At a Hearing, the ALJ found that the claimant had
15.5% pre-existing PPD to the body as a result of his hearing loss and awarded benefits
from the Fund, which appealed. The
Commission affirmed.
The Fund then appealed to the Missouri Court of
Appeals and argued that the claimant did not qualify for Fund benefits because
his pre-existing disability, hearing loss, does not meet the threshold to
receive those benefits, because it is not a disability to a major extremity or
the body as a whole.
HOLDING: The
Court found that hearing loss does constitute an injury to the body as a
whole. Using strict construction, it
interpreted §287.220.1 to mean that any pre-existing partial disability must
fall into one of the two above categories, either disability to a major
extremity or the body as a whole. Since
hearing loss is not an injury to a major extremity, it must be considered an
injury to the body as a whole. To hold
otherwise would imply that all injuries except those to the eyes and ears
trigger Fund liability. The Court held
that the claimant’s pre-existing hearing loss constituted an obstacle to
employment and met the threshold to trigger Fund liability. Therefore, the decision was affirmed.
April 2016 – June 2016
Injury Sustained by
Stepping Off Steep Edge of Sidewalk While Leaving Work Found Compensable
Lincoln University vs.
Narens, Case No. WD79003 (Mo.
App. 2016)
FACTS: At the end of the claimant’s work day, she
was walking to her car down a crowded sidewalk on the employer’s campus when
she stepped to the right to avoid people walking in the opposite direction, at
which time her right foot landed on the steep edge of the sidewalk and
turned. The claimant fell and broke her
ankle. A photograph of the sidewalk
where the claimant fell shows that the sidewalk edge is higher than the ground
adjacent to it.
At a hearing, an ALJ found the injury
compensable. On appeal, the Commission
affirmed finding that the claimant was in the course and scope of her
employment because, although she was leaving work, the extension of premises
doctrine applies because she was on premises owned an controlled by the
employer. She also would not have been
equally exposed to the risk of walking on a crowded sidewalk with a steep edge
on one side in her normal non-employment life.
HOLDING: The Appellate Court affirmed the Commission,
finding that the risk source of the claimant’s injury was stepping off the
steep edge of this particular sidewalk on campus, not simply walking. Therefore, she was not equally exposed to the
risk of injury in her normal non-employment life. Also, the claimant did not have to prove that
she was engaged in a work related activity when the injury occurred, because
the sidewalk where she was injured was owned and controlled by the employer and
the extension of premises doctrine applies.
Despite Previous Instances of Horseplay, Injuries
Sustained after Claimant Intentionally Ignited a Flammable Substance Not
Compensable because Risk did not Arise out of the Course and Scope of
Employment
Hedrick vs. Big O Tires, Injury No. 11-058168
Simon Law Group, P.C.
The claimant worked as a general mechanic at Big O
Tires. Employees sometimes used open
flames as part of their job duties, but only when safety methods were utilized
to make sure that no flammable materials were nearby. On his date of injury, the claimant intentionally
lit a can of glue on fire while a coworker was holding it, which caused an
explosion and serious injuries to both the coworker and himself. He pointed to several previous instances of
horseplay at work, including greasing a doorknob or snapping a rag. He argued that lighting the can on fire was
also horseplay, and since horseplay was prevalent at his workplace, the risk of
injury arose out of and in the course and scope of employment.
At a Hearing, the ALJ denied his Claim, finding that
the risk did not arise out of and in the course and scope of his employment,
because lighting the can on fire was an intentional dangerous act that had
nothing to do with his job duties, unlike the prior instances of horseplay,
which were not life threatening. On
appeal, the Commission affirmed, holding that the mere presence of dangerous
materials on the job site combined with the fact that coworkers occasionally
engaged in mild horseplay was insufficient to show that these injuries arose
out of and in the course and scope of employment.
Claimant Not Entitled to Permanency or Future Medical
because He Failed to Prove that His Continuing Complaints in 2015 were Causally
Related to His November 2011 Injury
Jack vs. Triumph Foods, LLC, Injury No. 11-107791
The claimant worked for the employer trimming fat from
meat using a wizard knife with his right hand.
He began having pain, swelling, and triggering in his right hand in
February 2011 and was terminated by the employer in November 2011. He was unemployed until 2014, when he began
working for a subsequent employer at a job that required repetitive use of his
bilateral upper extremities, and he continued to work there at the time of the
Hearing.
The claimant treated on his own with Dr. Prostic in
March 2012, at which time the doctor diagnosed cubital tunnel and stenosing
tenosynovitis of the long, ring, and little fingers of the right upper
extremity. He returned to Dr. Prostic 2
½ years later in October 2014, at which time the doctor noted he had no
physical evidence of stenosing tenosynovitis but instead appeared to have
bilateral carpal tunnel syndrome, and assessed 10% PPD of the bilateral upper
extremities. Dr. Prostic did not
diagnose cubital tunnel syndrome at the 2014 visit.
The claimant was sent by the employer to Dr. Wilkinson
in August 2015, at which time the doctor opined that his bilateral upper
extremity pain was subjective and found there was no objective evidence of
carpal tunnel, cubital tunnel, or stenosing tenosynovitis. The doctor assessed 0% PPD.
At a Hearing, the ALJ found that the claimant did
sustain a work related injury to his right hand in 2011. However, the ALJ found that he failed to
prove that his current condition was causally related to his 2011 work
injury. The ALJ noted that the claimant
had been working for a subsequent employer doing repetitive work with his
bilateral upper extremities for over a year without accommodations and without
receiving treatment for the same. The
ALJ found that he was at MMI for his November 2011 injury and had no disability
as a result. Therefore, the employer was
not responsible for any additional medical treatment. The claimant appealed, and the Commission
affirmed the ALJ’s decision.
Employer Responsible for Medical Treatment, Even
Though Claimant had a Pre-Existing Condition, Because Claimant was Asymptomatic
Prior to Her Date of Injury
Stieferman vs. Optima Graphics, Ltd., Injury Nos. 14-025821 & 14-035591
The claimant worked for the employer as a
seamstress. On April 7, 2014, she tripped
on a roll of fabric and fell, injuring her right shoulder. She underwent physical therapy and reported
75% improvement in her pain. Two weeks
later on April 21, 2014, she tripped again on the same roll of fabric and
re-injured her right shoulder.
She was treated by Dr. Hobbs, who diagnosed a
retracted full thickness tear of the supra and infraspinatus tendon with
retraction to the glenohumeral joint, atrophy, and degeneration with mild
glenohumeral osteoarthritis. Dr. Hobbs
opined that her tear preexisted both of her work injuries, since retraction
occurs over the course of months or years, and opined that her two work
injuries merely exacerbated an underlying condition and were not the prevailing
cause of her current right shoulder condition.
He did not recommend any treatment for the work injuries.
Dr. Emanuel testified on behalf of the claimant and
diagnosed a complete tear of the rotator cuff with retraction, joint arthritis,
subacromial bursitis, and bicipital tendonitis.
The doctor opined that while the claimant most likely had an asymptomatic
full thickness rotator cuff tear prior to her April 7, 2014 fall, her April 7,
2015 was the prevailing factor that caused a complete rotator cuff tear. The doctor also concluded that her April 21,
2015 fall aggravated her right shoulder but did not tear it. He recommended a second MRI followed by
surgical intervention.
At a Hearing, the ALJ found that both expert witnesses
agreed that the claimant had a pre-existing right rotator cuff tear. However, the ALJ found Dr. Emanuel’s
causation opinion more persuasive than that of Dr. Hobbs and held that the
April 7, 2015 fall was the prevailing factor causing the claimant’s current
condition. The ALJ noted that she had no
pain complaints and did not require treatment prior to April 7, 2015. Therefore, the ALJ found that the employer
was responsible for medical treatment with respect to the April 7, 2014 date of
injury.
Claimant Awarded PPD and Future Medical for Work
Related Mental Injury Without Showing That Her Stress Was Extraordinary and
Unusual When Compared to Similarly Situated Employees
Mantia vs. Missouri Department of Transportation and
Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED103016 (Mo. App. 2016)
FACTS: The
claimant worked for MoDOT and assisted at motor vehicle accident scenes. During her career she was at the scene of
multiple serious accidents involving catastrophic injury, dismemberment, and
death. She began to suffer significant
emotional and psychological symptoms and filed a Claim alleging psychological injury
as a result of an occupational disease.
MoDOT’s expert Dr. Stillings opined that the claimant
had work related depressive disorder that resulted in 2.5% PPD to the body. The
claimant’s expert Dr. Jovick opined that she had post-traumatic stress disorder
and major depressive disorder that resulted in 95% PPD to the body. Both agreed that she sustained PPD to the
body referable to psychological injury as a result of her job duties.
At a Hearing, the ALJ denied the Claim because she
failed to prove that she suffered extraordinary and unusual work related stress
when compared to similarly situated employees.
The Commission reversed, holding that the 2005 amendments to the
Worker’s Compensation Statute abrogated the requirement that an employee
compare her stress with that experienced by similarly situated employees. The Commission awarded 50% PPD of the body
referable to her mental injuries and future medical. MoDOT appealed to the Missouri Court of
Appeals.
HOLDING: The
Court held that the requirement that an employee compare her work related
stress to that of similarly situated employees was a judicially created
doctrine which should not be applied under strict construction. Strictly construed, an employee need only
show that mental injury resulted from stress that was work related and extraordinary
and unusual as measured by objective standards and actual events. The Court
held that the Commission’s decision was supported by the claimant’s testimony
and both medical experts, and it affirmed the Award.
Claimant PTD from Last Injury Alone after She Fell and
Injured Her Left Upper Extremity
Smith vs. Premium Transportation Staffing, Inc. and
Wil TransTrucking Company,
Injury No. 10-019420
The 54 year old claimant was employed by Premium
Transportation Staffing and assigned to Wil Trans Transportation as an over the
road truck driver. Premium’s handbook
stated that it was an employer, did not function as an employment agency, and
assigns its employees to other companies.
Therefore, the ALJ found that the employer was Premium.
On March 17, 2010, while working in Denver, Colorado,
the claimant attempted to pull a fifth wheel pin, at which time the pin became
loose and the claimant fell backwards, injuring her left hand, wrist, shoulder,
and tail bone. Premium arranged for the
claimant to be transported back to Springfield, Missouri. Once there, the claimant wished to return to
her home in Alabama and seek treatment there, which she did at an expense of
$189.22.
Dr. Scott, diagnosed a comminuted distal radius and
ulnar fracture and traumatic arthritis of the left wrist and performed a left
carpal tunnel release on June 21, 2012.
Dr. Hillyer, performed tendon tenolysis at the first, second, and third
extensor compartments on October 26, 2012.
She was placed at MMI on April 5, 2013 but continued to have complaints.
Dr. Parmet performed an IME in 2014 on behalf of the
claimant and diagnosed post-traumatic left carpal tunnel syndrome which
developed into left wrist extensor tenosynovitis and arthritis as well as a
frozen left shoulder related to her primary accident due to prolonged
immobilization. He assessed 30% PPD to
the shoulder and 75% PPD to the left forearm and opined the claimant was PTD
due to her last injury alone.
Mr. Eldred testified on behalf of the claimant and
opined that she was unemployable due to her advanced age, low academic testing,
medical condition, and limited work history in mainly truck driving. Premium’s vocational expert did not agree
that she was unemployable.
At a Hearing, the ALJ found the testimony of the claimant
and her experts credible and persuasive and found her to be PTD based on her
last injury alone and that Premium was liable for PTD benefits. With respect to mileage reimbursement for the
claimant’s trip from Springfield, Missouri to Alabama, the Judge found that
Premium was not liable because Alabama is more than 250 miles from Springfield,
Missouri. Premium appealed this
decision, which was affirmed by the Commission.
Claim against Fund was Untimely because Not Filed
within Two Years of Date of Injury or One Year of Claim against
Employer/Insurer
Reynolds vs. Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No.
11-080366
The claimant was a staff support employee at a
hospital and sustained an injury on October 9, 2011 when a patient grabbed him
in the groin area and pulled/twisted forcibly.
He filed a Claim for Compensation on October 27, 2011 and settled with
the employer/insurer on August 2, 2013 for 10% of the body referable to the
groin. He dismissed his Claim against
the Fund on August 16, 2013 before refiling his Claim against the Fund on July
30, 2014.
At a Hearing before the ALJ, the Fund argued that his
Claim against them was barred under Statute, because it was dismissed and not
re-filed within two years of the date of injury or within one year of the date
a Claim was filed against the employer.
The ALJ held that the Claim was not barred and awarded PPD benefits from
the Fund.
The Fund appealed to the Commission, arguing that the
Court of Appeals decision in Couch v. Treasurer of Missouri as Custodian of
the Second Injury Fund required the Commission to reverse the ALJ’s
decision. In Couch the Court of
Appeals found that a Stipulation for Compromise Settlement between an employer
and claimant does not constitute a Claim that pushed back the Statute of
Limitations for a Claim to be filed against the Fund. The Commission agreed with the Fund and
reversed the ALJ’s decision, finding that the claimant’s second Claim against
the Fund was barred because it was not timely filed within two years of his
date of injury in October 2011 or within one year of filing a Claim against the
employer/insurer in October 2011.
Claimant’s Pre-Existing Hearing Loss Constituted
Pre-Existing Disability to the Body as a Whole for the Purpose of Triggering
Fund Liability
Treasurer of the State of Missouri Custodian of the
Second Injury Fund vs. Horton,
Case No. WD79261 (Mo. App. 2016)
FACTS: The
claimant was employed by a hospital when he was assaulted by a patient and
knocked unconscious, after which he suffered from headaches, sensitivity in his
left eye, and shoulder, neck, and head pain.
He settled the Claim against his employer for 17.5% of the body
referable to the neck. He had
pre-existing hearing loss in both ears, which one doctor assessed to be 34.75%
hearing loss and another assessed to be 75% hearing loss. He filed a Claim for benefits from the Fund.
At a Hearing, the ALJ found that the claimant had
15.5% pre-existing PPD to the body as a result of his hearing loss and awarded benefits
from the Fund, which appealed. The
Commission affirmed.
The Fund then appealed to the Missouri Court of
Appeals and argued that the claimant did not qualify for Fund benefits because
his pre-existing disability, hearing loss, does not meet the threshold to
receive those benefits, because it is not a disability to a major extremity or
the body as a whole.
HOLDING: The
Court found that hearing loss does constitute an injury to the body as a
whole. Using strict construction, it
interpreted §287.220.1 to mean that any pre-existing partial disability must
fall into one of the two above categories, either disability to a major
extremity or the body as a whole. Since
hearing loss is not an injury to a major extremity, it must be considered an
injury to the body as a whole. To hold
otherwise would imply that all injuries except those to the eyes and ears
trigger Fund liability. The Court held
that the claimant’s pre-existing hearing loss constituted an obstacle to
employment and met the threshold to trigger Fund liability. Therefore, the decision was affirmed.