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Claim Denied Because Changing Directions When Walking Not Related
to Employment
Overstreet
v. TAMKO Building Products, Injury No. 18-009989
On
February 12, 2018, the claimant heard pop and felt a tearing in his
left knee while walking toward the load station. The claim was denied
and the claimant treated on his own undergoing surgery with Dr.
Grantham. He was evaluated by Dr. Koprivica at the request of his
attorney, who opined that the February 12, 2018 injury was the
prevailing factor in the acute internal derangement of the left knee.
At a
hearing the claimant testified that where he was walking was the same
as always, not wet, not slick and while it was night the area was
lighted. In his deposition he stated he was walking downhill or
across a decline when his knee popped but essentially answered “I
don’t know” when asked if he thought that contributed to
the incident.
At
the hearing the claimant testified that there was a slope in the area
but he did not indicate that the slope contributed to his knee
popping. He did note there were cracks in the area he was walking,
typical of asphalt, but could not say that he stepped in a crack or
that a crack caused his knee accident. The claimant conceded that
where he was injured was not dissimilar from numerous other asphalt
lots in the area to which he was exposed in his non-employment life.
He also agreed that he had been to other lots that were similar to
the lot where he was injured in his non-employment life.
The
ALJ concluded that the claimant did not meet his burden of proof that
he sustained a compensable injury, as he did not show the risk of
walking and changing directions was a risk related to his employment,
and not one to which he was equally exposed in his non-employment
life. The Commission noted that he tried to insert multiple red
herrings by talking about wearing steel-toed boots at work but not at
home and walking on uneven surfaces and over areas of asphalt more
often at work, but he never claimed that any of those factors caused
his knee injury. The only thing ever identified as the source of the
injury was walking and changing directions. Benefits were therefore
denied. The Commission affirmed.
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Claim Denied as Twisting and Turning Was Not a Condition of
Claimant’s Employment or
Necessary for Performance of Job Duties
Durr
v. Americare Systems, Inc. Clark’s Mountain Nursing Center
Americare at Clark’s Mountain, Injury No.
15-013660
The
claimant worked at the employer as a CNA on the night shift and
testified that on March 5, 2015, she injured her left knee while
moving back out of a space between the bed and a wall and quickly
turned to exit and twisted her left knee when she pivoted on her left
foot. She testified that she did not notice anything on the floor and
was not holding anything when she turned. As part of her regular
duties the claimant testified that she would place fresh water and
ice in a container at the bedside of the nursing home residents to
whom she was assigned. She testified that she tried to complete this
job quickly as the single ice cart was also used by other nursing
assistants for residents of other halls in the facility. The
claimant’s night shift charge nurse testified on behalf of the
employer and confirmed that one of the claimant’s job duties
was to pass out ice to the residents in the rooms. However, she noted
that there was no time limit although it was preferred that it be
done within the first two hours of the shift. She also testified that
she did not see or notice anything unusual about the room such as any
item or substance on the floor on the claimant’s date of
injury. At a hearing the ALJ believed that the claimant’s
injury was the prevailing factor in causing the injury to the
claimant’s left knee and awarded benefits.
The
Commission disagreed with the ALJ, as they did not believe the
claimant’s alleged injury arose out of her employment and
pointed out that twisting and turning does not appear to be a
condition of the claimant’s employment or necessary for the
performance of her job duties and even if they were, the claimant
like every other human being, would have been exposed equally in
normal non-employment life to twisting and turning during normal
daily activities. Therefore, they did not see a causal connection
between the claimant’s work duties and the alleged injury. The
ALJ’s Award was therefore reversed and benefits were denied.
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Application of §287.140.4 (post January 1, 2014) Proper When
Date of Service and First>Notice of Dispute Occurred After Section Became Effective in 2014 Claim Denied Because Claimant Found Not Credible and No Evidence of Injury in MedicalRecords
Holland
v. Meramec Mechanical Inc., Injury No. 12-034177
A
Medical Fee Dispute Award was issued by an ALJ on November 24, 2020.
The ALJ ruled the Application for Payment of Additional Reimbursement
of Medical Fees by the healthcare provider was not timely filed. The
provider then filed a timely Application for Review to the
Commission.
The
provider alleged that the Division erred in applying the section
287.140.4 instead of the version that was effective at the date of
injury for the related workers’ compensation Claim of May 8,
2012. The provider argued that the applicable statute for the dispute
should be the same as what applied to the workers’ compensation
Claim. The provider also argued that by applying the 2014 version
which contained a time limitation for filing a Medical Fee Dispute,
the ALJ mistakenly and retroactively applied a substantive law.
The
Commission agreed and pointed out that the statute of limitations for
filing a claim for workers’ compensation benefits is controlled
by the date of injury. However, the Medical Fee Dispute claim is not
a Claim for workers’ compensation. Per the section effective on
January 1, 2014, the pertinent dates in the statute of limitations
are the date of service and the date of the first notice of dispute
of the medical charge received by the healthcare provider. In the
case at hand, the date of service and date of notice both occurred
after January 21, 2014, when the statute had become effective.
Therefore the ALJ’s application of the version of §287.140.4
effective on January 1, 2014 was proper and the Award was affirmed.
Hundley
v. Con-Agg of MO, LLC & Treasurer of Missouri as Custodian of
Second Injury Fund, Injury No. 14-094684
On
May 7, 2014, the claimant was delivering concrete to an elementary
school and after the delivery his truck dropped off the curb and the
claimant testified that his seat shot up like a rocket and he hit his
head on the roof of the truck. He was seen the day after his injury
at Cooper County Memorial Hospital with complaints but there was no
mention of any work-related injury, head injury or him hitting his
head on the roof of his truck. There was also no mention of the
injury when he was seen by his primary care physician. The employer
did send the claimant to Dr. Peeples who noted that any work injury
was not the cause of his symptoms.
The
ALJ did not find the claimant credible and noted there was no report
of any injury in the medical records and he did not mention his
injury to anyone at the employer. Also, he did not find the
claimant’s experts credible as Dr. Shah did not see him until
four years after the accident and did not review the emergency room
records. Therefore, benefits were denied. The Commission affirmed the
Decision of the ALJ.
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Claim Denied as Claimant Testified Additional Job Duties Caused
Symptoms But No Doctor
Connected His Condition to Those Additional Job Duties
Mirfasihi
v. Honeywell Federal Manufacturing & Technologies, LLC,
Case No. WD84136 (Mo. App. 2021)
FACTS:
The claimant began working for the employer, Honeywell, in 1984
and spent a majority of his time on a computer. Somewhere between
December 2016 and January 2017, he began to experience pain in his
left hand. He reported the issue on March 15, 2017. He was directed
to treat with Dr. Steelman who believed the claimant’s symptoms
were related to osteoarthritis, not any work-related activities.
Based on this, the employer denied the claim. He then retired from
the employer and began working for Argon National Laboratory, where
his duties were much the same, though he spent a little less time on
the computer. He then filed a Claim for Compensation, asserting a
left hand and left thumb repetitive motion injury. He treated on his
own and Dr. Maugans performed a left thumb A1 pulley release surgery
in January of 2018. The claimant’s attorney obtained a report
of Dr. Neighbor who concluded that the claimant’s job duties
were the prevailing factor in causing his condition. Dr. Walker
testified on behalf of the employer who did not believe his condition
was work related.
At a
hearing the ALJ awarded benefits. The employer appealed and the
Commission issued a final Award reversing the ALJ’s Award and
denying benefits. The Commission concluded that the claimant failed
to meet his burden that his job duties were the prevailing factor in
causing his medical condition because there was no record of the
claimant informing the doctors of other work activities that could
have caused his trigger finger. Specifically, the claimant testified
at the hearing that when he traveled he was required to bring his
laptop which he usually put in a brief case that he carried in his
left hand and that he also transported his brief case to and from
work at Honeywell when he was not traveling. Furthermore he had to
badge in and push the door using his left hand which was much heavier
than the average door. The Commission noted that despite the
claimant’s testimony, no expert based their opinion on these
job duties when authoring their reports. Also the Commission found
Dr. Walker more credible than Dr. Neighbor. The claimant appealed.
HOLDING:
The claimant argued that the Commission erred in theorizing that
it did not have any expert opinion as to his other activities of
carrying his brief case and opening the door that could have caused
the trigger finger. The Court disagreed, noting that the record
contained nothing about those other activities. The claimant also
argued that the Commission erred in concluding he failed to meet his
burden that his work duties caused his trigger thumb as they
disregarded the opinion of Dr. Walker and failed to consider that his
asymptomatic arthritis became symptomatic. The Court pointed out that
the Commission did consider whether the claimant’s
osteoarthritis was caused or aggravated by his work duties and they
specifically found that it was not. The final Award denying
compensation issued by the Commission was affirmed.
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Claimant’s
Shoulder Arthroplasty Found Not Work Related
Edwards
v. Dairy Farmers of America, Inc., Injury No. 17-006238
On
January 30, 2017, the claimant sustained an injury to his left
shoulder. He initially underwent an MRI and was referred to an
orthopedic surgeon. He was seen by Dr. Putnam who opined that the
pathology was degenerative regardless of an alleged injury and
therefore he did not recommend any additional treatment. The claimant
then treated on his own and underwent a total arthroplasty. The
claimant did have a preexisting condition and had undergone a prior
surgery. However, he stated that once he recovered from that surgery
he had no problem with his left shoulder until his work injury.
The
employer then had the claimant evaluated by Dr. Lennard who did not
believe that the claimant’s work injury was the prevailing
factor in the onset of the left shoulder arthritis. Dr. Mullins
examined the claimant on his behalf and connected the need for the
arthroplasty back to the work injury.
At a
hearing the ALJ found the opinions of Dr. Lennard and Dr. Putnam more
persuasive. Also, he noted that the medical records of Dr. Wester,
the claimant’s treating physician, were inconsistent with his
testimony that he did not have any problems with his shoulder as when
he was seen a year prior to the work injury he reported stiffness and
pain in his shoulder. Therefore, the ALJ denied the Claim. The
Commission affirmed.
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Commission
Erred in Finding that Claimant Must Prove PTD Resulting From a
Combination of the Primary Injury and a Single Qualifying
Pre-existing Condition
Lexow
v. Boeing Company & Treasurer of Missouri as Custodian of the
Second Injury Fund, Case No. ED108853 (Mo. App. 2021)
FACTS:
The claimant began worked as an aircraft stimulation technician
and developed carpal tunnel syndrome. He settled his claim against
the employer. He filed a Claim against the Fund alleging he was PTD
as a result of a combination of his various pre-existing conditions
and his carpal tunnel. At a hearing the ALJ issued an Award in favor
of the claimant finding he was PTD due to a combination of his
primary injury and pre-existing injuries. The Fund appealed.
The
Commission reversed the ALJ’s award and concluded that in order
to satisfy the statute a claimant must prove that the PTD resulted
from a combination of a primary injury and a single preexisting
disability that meets the 50-week threshold and falls into one of the
categories for Fund liability.
HOLDING:
The Court concluded that the Commission misinterpreted §287.220.3
in finding that the claimant must prove PTD resulting from a
combination of the primary injury and a single qualifying
pre-existing condition, noting that when the statute refers to
pre-existing disability in the singular, it should be interpreted to
include the plural form.
The
claimant also argued that the Commission erred in failing to consider
his 2003 workers’ compensation claim involving an occupational
disease as a qualifying disability under the statute. The Court
agreed, finding that §287.220.3 refers generally to a
compensable injury and does not exclude occupational disease claims.
Therefore, the Court concluded that the Commission erred in finding
that the claimant’s bilateral carpal tunnel did not satisfy the
requirement of the statute.
The
Court therefore remanded to the Commission with instructions to make
factual findings as to which of the claimant’s pre-existing
conditions qualify under one of the four eligibility criteria listed
in the statute to determine if the claimant is entitled to PTD
benefits.
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Both Claimant’s Physical Condition as well as Non-medical
Considerations Such as Age,
Education and Transferable Work Skills Can Be Considered When
Analyzing Whether
Claimant is PTD
Klecka
v. Treasurer of Missouri as Custodian of the Second Injury Fund,
Case No. ED108721 (Mo. App. 2021)
FACTS:
The claimant sustained an injury to his left shoulder on April
18, 2014 and settled the primary claim with his employer for 35% PPD
of the left shoulder and 21.5% PPD of the body as a whole resulting
from psychiatric injury, mainly depression. The claimant then pursued
a Claim against the Fund following a history of work and
non-work-related accidents and injuries.
The
ALJ issued an Award in favor of the claimant for PTD benefits. The
Fund appealed to the Commission, who found that the claimant only had
one pre-existing disability that equaled a minimum of 50 weeks of
PPD. The Commission reversed the Award based on its interpretation of
§287.220.3, noting the claimant’s experts and the ALJ
considered the claimant’s other injuries and disabilities as
well as non-medical considerations such as age, education and
transferable work skills. The employer appealed.
HOLDING: The claimant argued that the Commission
misinterpreted §287.220.3. The Court agreed and found that it is
appropriate to consider both the claimant’s physical condition
as well as other considerations such as age, education and
transferable work skills when analyzing whether the claimant is PTD.
The Court reversed the Commission’s decision and remanded the
case for entry of an Award in favor of the claimant against the Fund
for PTD benefits.
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All of Claimant’s Preexisting Disabilities Being Considered
for Fund Liability Have to Meet
Criteria in Statute; Also Qualifying Preexisting Conditions Do Not
Have to be at MMI Prior
to Primary Injury
Treasurer
of the State of Missouri as Custodian of the Second Injury Fund v.
Parker, Case No. SC98704 (Mo. S. Ct. 2021)
FACTS:
The claimant sustained a work-related injury to his right elbow
and shoulder in March of 2014. He sustained another work-related
injury to his neck in June of 2014. He then underwent surgery on his
right arm in August of 2014. In September of 2015 he underwent a
cervical discectomy fusion surgery and did not return to work
following the surgery. He asked to return to work, but never heard
back and attempted to work at another employer, but quit after a few
weeks due to pain from the injuries. He filed a Claim against the
Fund and proceeded to a hearing for the June 2014 injury. The
claimant’s attorney obtained a report of Dr. Stuckmeyer who
concluded that the claimant was PTD and the ALJ found that the Fund
was liable for PTD benefits under §287.220.2. The Fund appealed
and the Commission adopted the Award of the ALJ.
HOLDING:
The Court found that §287.220.0 applied and under that
statute employees must meet two conditions to make a compensable PTD
claim, the first being that the employee must have at least one
qualifying pre-existing disability. The second is that the employee
must show he sustained a subsequent compensable work-related injury
that combined with the pre-existing disability, resulting in PTD.
The
Fund argued that the first condition can be met only when the
pre-existing disability is determined to have reached MMI before the
employee suffers a primary injury. The Court pointed out that the
statute requires only that an employee has a medically documented
pre-existing disability before suffering the primary injury. The
Court concluded that an employee who suffers a pre-existing
disability before his primary injury can meet the first condition
regardless of whether he knew or it had been determined before
suffering his primary injury that his pre-existing disability equaled
50 weeks of PPD.
The
Fund argued that to meet the second condition only one pre-existing
disability can combine with the primary injury to result in PTD. The
Court disagreed, noting that while the statute refers to pre-existing
disability in the singular, §1.030 instructs that the singular
form should be interpreted to include the plural form.
The
claimant argued that the second condition can be met by showing the
primary injury resulted in PTD when combined with all the employee’s
disabilities. The Court was not persuaded, noting that the section
specifies that the subsequent work-related injury must combine with
the pre-existing disability, which must qualify under one of the four
eligibility criteria laid out in the statute. Therefore, the Court
concluded that the employee satisfies the second condition by showing
that the primary injury resulted in PTD when combined with all
pre-existing disabilities that qualify under one of the four
eligibility criteria listed in the first condition.
The
Fund also objected to the admission of Dr. Hess’s report which
was part of the complete medical record of Dr. Stuckmeyer and argued
that the Commission erred in admitting Dr. Hess’s report. The
Court did not agree as Dr. Hess’s report was part of Dr.
Stuckmeyer’s complete medical report.
The
Commission’s decision was vacated and the case was remanded to
the Commission to evaluate the claimant’s Claim for PTD
benefits.
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Claimant
Could Not Pursue Civil Suit Due to Workers’ Compensation
Exclusivity
Ducoulombier
v. Ford Motor Company, Case No. WD83430 (Mo. App. 2021)
FACTS:
On February 25, 2016, the claimant’s husband was found
unresponsive on a work platform at Ford and then taken to the
hospital where he was declared brain dead. The claimant’s wife
filed a petition in civil court alleging negligence by Ford through
its first responders.
She
also filed a workers’ compensation claim with the Division
alleging that her husband sustained an injury at work which resulted
in his death. Ford filed an Answer and also filed a petition in civil
court denying any negligence and raised affirmative defenses
including that the civil court lacked statutory authority to proceed
with the case because the Division had exclusive jurisdiction. The
claimant then filed a voluntary dismissal with prejudice with respect
to the workers’ compensation claim and the Commission
subsequently entered an order dismissing the Claim with prejudice.
In
response to Ford’s Motion for Summary Judgment the claimant
filed a response arguing that the Motion was moot as the workers’
compensation claim no longer existed.
Ford
responded that workers’ compensation law could not be avoided
with an election of remedies and that because the claimant dismissed
her claim with prejudice, the Commission would never determine that
the alleged injury underlying the claim did not arise out of and in
the course and scope of employment as a necessary prerequisite for
the claimant being able to proceed with a civil action. Ford
therefore contended that the action was barred. The circuit court
granted summary judgement in favor of Ford and the claimant appealed.
HOLDING:
The claimant contended that the Court erred in determining that
the Division had exclusive jurisdiction over a claim, as the
allegations contained in her petition were based on principles of
negligence, a cause of action available in the circuit court. The
Court noted that a plaintiff cannot plead around the Commission’s
statutory authority and the claimant does not have an undefeatable
right to have the claim determined in circuit court just because she
chose to file it there in the first instance.
The
Court found that since the claimant’s petition alleged that her
husband became incapacitated while at work and thereafter, suffered
additional injury on Ford’s premises due to Ford’s
negligence, the Court found no obvious or clear error in the circuit
court’s conclusion that the claimant’s claim involved the
employer/employee relationship and as such, the Commission had
exclusive authority to determine whether her husband’s injury
and death rose out of and in the course and scope of employment. The
claimant’s point on appeal was denied. The circuit court’s
judgment was affirmed.
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Claimant’s Injury Resulting in Death Compensable so Claimant
Could Not Pursue Civil
Liability Due to Exclusive Remedy
Halsey
and Kennedy v. Townsend Tree Service Company, LLC, Case
No. SD36658 (Mo. App. 2021)
FACTS:
On July 22, 2016, the claimant was asked to collect some caution
signs and in the process of doing so, he passed out while working for
the employer. The claimant was diagnosed with heat stroke and was
hospitalized and died the following day, at which time hypothermia
was given as his official cause of death. At the time of his death,
the claimant was 23 years old, 6’1 inches in height and weighed
approximately 300 pounds.
After
the parents filed a wrongful death lawsuit in civil court they filed
a Claim for Compensation with the Division in which they conceded
that they were not making a new Claim, but merely seeking a factual
determination from the Commission about whether a compensable injury
occurred. The employer filed a response disputing that obesity was an
idiopathic condition and argued that the claimant’s death
qualified for and was covered by the exclusive remedy of workers’
compensation and that the amount of workers’ compensation owed
had already been paid.
At
an evidentiary hearing the ALJ found that the claimant’s injury
which resulted in death was compensable. The claimant’s parents
filed an Application for Review with the Commission which ultimately
affirmed the ALJ’s decision. The parents again appealed.
HOLDING:
The parents alleged that a challenge to the Commission’s
Award claiming its finding that an accident occurred under §287
was erroneous, as it was against the weight of the evidence. The
Court was not persuaded.
The
Court found that evidence was provided that the claimant’s
obesity contributed to his heat stroke and death, however, the
Court noted that there was no evidence in the record indicating that
the obesity was the cause of his heat stroke and death. The
parents therefore failed to meet their burden of proof, and therefore
the Commission’s Award was affirmed.
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Civil Claim Barred as Contractor Found to Be Statutory Employer
State
ex rel. Beutler, Inc. v. The Honorable Sandra C. Midkiff,
Case No. SC98251 (Mo. S. Ct. 2021)
FACTS:
The claimant was injured while operating a dump truck for the
employer, R&B Trucking. He received workers’ compensation
benefits. He then filed a negligence action against Shaw
Construction, who subcontracted work to C-Sharp Trucking (who further
subcontracted work to R&B Trucking) and Brian Henderson, an
employee of Shaw. Shaw and Henderson argued that the common law
action was barred by the workers’ compensation exclusivity
doctrine because Shaw was the claimant’s statutory employer and
Henderson was his statutory co-employee under §287.040.
The
Court did not agree and found that the relationship between R&B
Trucking and C-Sharp was a relationship between a for-hire motor
carrier operating within a commercial zone…and an owner as
defined in §301.020 and operator of a motor vehicle per
§287.040.4,” thereby negating Shaw’s status as
claimant’s statutory employer. Shaw and Henderson petitioned
the Court for a Writ of Mandamus directing the circuit court to
vacate its initial judgement, overruling their motion for summary
judgement and to enter summary judgement in their favor.
HOLDING:
The Court noted that the status of a statutory employer survives
any chain of contractors and subcontractors and therefore, because
there is an unbroken chain of contractors and subcontractors in this
case, Shaw is the claimant’s statutory employer. Shaw and
Henderson argued that the circuit court focused on the wrong
relationship, arguing that the focus should not have been on C-Sharp
and R&B but the claimant and Shaw. The Court agreed, noting that
C-Sharp qualified as an owner under §301.010 but not as an
operator, and as a result, §287.040.4 did not apply to C-Sharp’s
relationship with the claimant’s employer, R&B Trucking.
Because the exception in §287.040.4 did not apply to break the
chain of subcontractors, Shaw is the claimant’s statutory
employer. Therefore, Shaw is immune from suit and it follows that
Henderson is also immune as the claimant’s statutory
co-employee because Henderson was an employee of Shaw, the statutory
employer.
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Employee’s Use of Hairdryers Prevailing Factor in Causing
Mesothelioma But Claimant Not
Entitled to Enhanced Benefits as Employer Not in Business to Have
Elected Them
Hayden
v. The Cut-Zaven, LTD, Papillon, LTD & Treasurer of Missouri as
Custodian of Second Injury Fund, Injury No. 14-103077
The
employee worked as a hairdresser for 47 years. He worked at multiple
salons. He alleged that he used hand-held hair dryers which he
believed contained asbestos. He could not remember the specific
hairdryers that contained asbestos and most of those were
discontinued as of 1979. He was diagnosed with mesothelioma on June
26, 2014 and died on April 26 2016.
At a
hearing the ALJ concluded that the employee did not meet his burden
of proof regarding medical causation. The judge noted that he could
not specifically recall the types of hairdryers he used. The judge
also noted that Dr. Hyers’ conclusion that the employee’s
condition was work-related was simply based on the employee’s
deposition testimony. The claimant appealed and the Commission
affirmed. The claimant again appealed.
The
Court of Appeals reversed the Award of the Commission finding that
the claimant’s use of asbestos containing hair dryers was the
prevailing factor in the development of mesothelioma. Therefore, the
issue of medical causation was resolved in favor of the claimant, the
employee’s widow. The Court further found that employee’s
date of injury was June 26, 2014, the date of his diagnosis. The
Court remanded the case to the Commission for determination of all
remaining issues.
The
claimant argued that employee was entitled enhanced benefits and that
traditional PTD benefits as well as death benefits must be calculated
at the same enhanced rate. The employer argued that the enhanced
benefits that came into effect on January 1, 2014, did not apply to
the employee’s March 9, 2015 claim because it was out of
business as of 2005 and the new benefit was not contemplated or part
of its insurer’s coverage at the time of the effect from 1979
through 1983. The Commission found that the claimant was not entitled
to enhanced benefits because the employer could not have elected them
after its 2005 termination, 9 years before the enhanced benefits came
into effect.
The
employer argued that the employee failed to produce credible evidence
of what he earned and therefore, his wage rate must be calculated at
the statutory minimum. The Commission found that the employee’s
testimony as to his wages constituted competent substantial evidence
of his average weekly wage and therefore, they calculated his wage
rate for PTD benefits and death benefits at the rate of $403.33. The
Commission awarded PTD benefits from June 26, 2014, the date of his
diagnosis, to April 26, 2016, the date of his death. The Commission
awarded the employee’s widow death benefits at the weekly rate
of $403.33 until her death or re-marriage. The Commission also
determined that the insurer responsible for benefits was the insurer
at the time of the employee’s most recent or last exposure.
The
claimant produced evidence of medical bills in the amount of
$462,699.24. The employer contended that they should not be liable
for the employee’s medical bills because they received no
notice of his claim until after he incurred the charges and had no
opportunity to direct or control his medical treatment. The
claimant’s attorney argued that the employer’s failure to
direct or pay for the employee’s treatment after notice of his
March 4, 2015 claim gave rise to an inference that they would have
refused treatment, even if employee had demanded it earlier. The
Commission found that the employer was liable for reimbursement for
employee’s medical bills.
The
claimant asserted her entitlement to a $5,000.00 burial expense,
pursuant to §287. The Commission noted that the record includes
no documentation of the employee’s burial expenses and
therefore, denied compensation for the burial expenses.
The
claimant argued that the employer was liable for a 15% penalty for
his failure to protect his employees from hazardous materials, as
required by statute. The employer responded that the application of
those statutes requires knowledge on the part of the employer of a
hazard in order to protect the employee from it. The Commission
agreed, finding no evidence that any named employer knew of the
hazard and therefore, claimant’s request for a 15% penalty in
all compensation was denied.
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Expert Credible Despite Providing Alternative Opinions For Party
Responsible for PTD
Franklin
v. Mitchell Mill Systems USA, Inc. & Treasurer of the State of
Missouri as Custodian of the Second Injury Fund, Case No.
SD36898 (Mo. App. 2021)
FACTS:
The claimant worked heavy labor 50-58 hours a week for the
employer, and in 2009 had to seek medical care for his lower back. He
had back surgery in July of 2011 and returned to work after 6 weeks.
He did not file a workers’ compensation claim. He then began
experiencing problems with his wrist which led to bilateral carpal
tunnel releases in 2012 and 2013 and filed a workers’
compensation claim. His sciatica returned and his back condition
worsened while he welded from 2013 to 2014. He underwent surgery in
October of 2014 but this did not relieve his symptoms and he was
unable to return to work.
The
claimant filed an occupational disease claim to his lumbar spine with
an April 12, 2014 date of injury. He was evaluated by Dr. Koprivica
who concluded his lumbar condition was work-related and that the
severity of the claimant’s disability from the post laminectomy
syndrome in isolation caused total disability. Mr. Eldridge, the
vocational expert opined that the claimant was unemployable in the
open labor market and permanently and totally disabled as a result of
his April 12, 2014 injury in isolation.
The
ALJ found the claimant to be permanently and totally disabled due to
a combination of the April 12, 2014 work injury and his pre-existing
disabilities. The employer and the Fund filed an Application for
Review with the Commission found that the employer was liable for
benefits as the claimant was PTD as a result of the last injury
alone. The employer appealed.
HOLDING:
The employer argued that the Commission’s award was not
supported by the facts because Dr. Koprivica and Mr. Eldridge changed
their minds and that Dr. Koprivica’s opinion was dependent upon
Mr. Eldridge’s report, which was incomplete and inaccurate
because the report stated that the claimant had no prior
disabilities. The Court was not persuaded, noting that this
characterization was inaccurate as Dr. Koprivica made an alternative
opinion in the case of a hypothetical and that Mr. Eldridge in his
evaluation stated that while the claimant had pre-existing
conditions, it was the restrictions from the injury of April 12, made
him totally disabled. The Commission’s Award was affirmed.
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Claimant
PTD as Result of 3 Elbow Surgeries and Employer Liable for Medical
Treatment Despite Claimant Initially Treated On Own
Ritchie
v. Silgan Containers Manufacturing Corp and Travelers Casualty Ins.
of America, Case No. WD84123 (Mo.
App. 2021)
FACTS:
The claimant worked for the employer from 2009 to 2017 as a fork
truck driver and developed pain in her left elbow. She then had a
non-work related wrist fracture and while treating for that condition
also began treating for her left elbow pain. She had two surgeries
and used STD and FLMA. She returned to work and thereafter the doctor
recommended another EMG and the following day the claimant provided
written notice to the employer. She underwent a third surgery and the
doctor gave her restrictions which the employer could not
accommodate.
Dr.
Neighbor evaluated the claimant and diagnosed complex regional pain
syndrome, lateral epicondylitis and cubital tunnel syndrome and
opined that her job duties were the prevailing factor causing the
diagnoses.
She
was then evaluated by Dr. Zarr who assessed 25% PPD to her left elbow
and at first said he wasn’t certain what the prevailing factor
is for her nerve but later opined that the claimant’s work was
not the prevailing factor in causing her left elbow pain. Mr.
Dreiling testified on behalf of the claimant and opined she was PTD
disabled. The employer obtained a report of Dr. Cordray who opined
that she could compete in the open labor market.
The
ALJ concluded she was PTD, she provided timely notice of the injury
to the employer and that her claim was not barred by the statute of
limitations. The Commission affirmed the ALJ’s decision but
changed the effective date for PTD benefits to May 2, 2019, the date
of her MMI. The employer appealed.
HOLDING:
The Court affirmed the decision of the Commission’s award.
It opined that Dr. Neighbor’s opinion that the injury was the
prevailing factor was sufficient and competent evidence to support
the Award.
The
employer argued that the Commission erred by finding that the claim
was not barred for lack of timely written notice because Dr. Smith
made a causal connection between the claimant’s work and her
job duties noting that Dr. Smith mentioned her job duties and
difficulty doing her job in his reports thereby establishing a
work-related diagnosis. The Court disagreed, noting that the
Commission could reasonably find that Dr. Smith never opined that she
sustained a work related or occupational disease or injury arising
from her repeated elbow use and therefore, his statements did not
trigger her duty to provide written notice to the employer.
The
employer also argued that the Commission erred in finding that they
were liable for past medical expenses. The Court disagreed noting
that evidence supported the Commission’s finding that the two
surgeries performed by Dr. Smith and the third surgery that followed
were necessitated by her repetitive motions and operating the
forklift and therefore, because all three surgeries flowed from the
occupational disease, the employer was liable for any medical
expenses incurred by the claimant.
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Mere Mention in Award that Claimant Was Married Insufficient to
Establish Dependency
at the Time of the Injury
Matthews
v. Treasurer of Missouri as Custodian of the Second Injury Fund,
Case No. ED109168 (Mo. App. 2021)
FACTS: The claimant sustained a work-related injury on March
1, 2003 and settled with his employer and then pursued a claim
against the Fund for PTD. Following a hearing, the ALJ awarded the
claimant PTD benefits. The Fund appealed to the Commission, which
affirmed the Award. Because no party appealed the Award, it became
final. Pursuant to the Award, the Fund paid the claimant PTD benefits
until his death, which was not related to his injury. The claimant’s
wife then filed with the Commission a Motion for Substitution of
Parties, in which she sought to receive the claimant’s PTD
benefits as his surviving dependent, asserting that she was the
claimant’s spouse at the time of the injury. The Commission
dismissed the Motion for lack of jurisdiction, claiming that it had
no statutory authority to continue the benefits because the ALJ’s
Award did not contain a finding that she was the claimant’s
dependent on the date of his injury. The claimant’s alleged
spouse appealed.
HOLDING:
She argued that the Commission erred in dismissing her motion
because she presented evidence that she was the claimant’s
dependent on the date of his injury, which entitled her to
continuation of his PTD benefits. The Court disagreed, noting that if
the final Award does not make findings establishing the dependance,
the Commission does not have the authority to later disturb the
finality of the Award by modifying it to make dependency findings
that were not included in the final Award. The Court stated that the
mere mention in the Award that the claimant was married was
insufficient to establish dependency at the time of the injury, as it
did not identify the appellant as the spouse and therefore, did not
establish she was his dependent on that date. The Commission’s
decision was affirmed.
